Criminal Law Update March 2020

Criminal Law Update March 2020

Course #CRM0363 (Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Hybrid Accreditation for September 2, 2020, through December 31, 2021

This Course Is Appropriate for Experienced Attorneys

Areas of Professional Practice: 1 CLE Credit Hour

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

This course organizes summaries of decisions by the New York State appellate courts (Appellate Division and Court of Appeals) released between March 1, 2020 and March 31 30, 2020 which address issues in “Criminal Law.” Similar 1/2-to 1-hour CLE courses are continuously being submitted for approval to the NYS CLE Board for each month from January 2019 to the present, to provide readers with CLE credit simply for keeping up to date with the latest appellate decisions.

The “Criminal Law” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly pamphlets which are accessed in the “Update Service.” The monthly pamphlets comprise the written materials for these monthly CLE courses. A link to the written materials for this course (“Criminal Law Update Pamphlet March 2020”) is provided below.

As you listen to the course, you will hear a verification code. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification code, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey” (the CLE Board requires that I collect and preserve the Evaluation Surveys). Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 1 credit-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the links below for the written materials (“Criminal Law Update Pamphlet March 2020”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

The media player for this course is at the bottom of the page.

Criminal Law Update Pamphlet March 2020

Criminal Law Update March 2020 Attorney Affirmation

Criminal Law Update March 2020 Evaluation Survey

Topics Covered in the “Criminal Law Update March 2020” Course Are Described Below (the podcast may not address every case in the written materials); Page Numbers Refer to the Written Materials, i.e., the “Criminal Law Update Pamphlet March 2020”

ALFORD PLEA, APPEALS, PROBABLE CAUSE.

WAIVER OF APPEAL INVALID; THERE WAS PROBABLE CAUSE FOR THE DWI ARREST EVEN THOUGH NO FIELD SOBRIETY TESTS WERE CONDUCTED; BETTER PRACTICE WOULD BE FOR THE PROSECUTOR TO PLACE THE EVIDENCE OF DEFENDANT’S GUILT ON THE RECORD AT THE TIME OF AN ALFORD PLEA (THIRD DEPT). 6

ATTORNEYS, RIGHT TO COUNSEL.

BECAUSE DEFENDANT INVOKED HIS RIGHT TO COUNSEL WHEN HE WAS NOT IN CUSTODY HE COULD VALIDLY WITHDRAW HIS REQUEST WITHOUT THE PRESENCE OF COUNSEL (FOURTH DEPT). 6

ATTORNEYS, RIGHT TO COUNSEL.

BECAUSE THE ISSUE WAS NOT PRESERVED, THE APPELLATE COURT DID NOT ADDRESS DEFENDANT’S OBJECTION TO THE TRIAL JUDGE’S PROHIBITING DEFENDANT FROM COMMUNICATING WITH HIS ATTORNEY DURING OVERNIGHT RECESSES WHEN DEFENDANT WAS ON THE STAND (FOURTH DEPT). 7

ATTORNEYS, RIGHT TO COUNSEL.

DEFENDANT’S RIGHT TO COUNSEL ATTACHED AT THE PENNSYLVANIA ARRAIGNMENT; SUBSEQUENT QUESTIONING BY PENNSYLVANIA POLICE IN THE ABSENCE OF COUNSEL VIOLATED DEFENDANT’S RIGHT TO COUNSEL; NEW YORK POLICE DID NOT MAKE A REASONABLE INQUIRY INTO DEFENDANT’S REPRESENTATIONAL STATUS (FOURTH DEPT). 8

ATTORNEYS, RIGHT TO COUNSEL.

THE DEFENSE ATTORNEY HAD BEGUN WORKING FOR THE DISTRICT ATTORNEY’S OFFICE AT THE TIME DEFENDANT ENTERED HIS PLEA; DEFENDANT WAS THEREBY DEPRIVED OF HIS RIGHT TO COUNSEL; PLEA VACATED (FOURTH DEPT). 9

CONVICTION, MOTION TO VACATE, ATTORNEYS.

DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS WAS PROPERLY DENIED WITHOUT A HEARING; THE TWO DISSENTERS ARGUED THE PRO SE MOTION WAS SUFFICIENT TO WARRANT A HEARING, DESPITE THE TECHNICAL DEFECTS (FOURTH DEPT). 10

CONVICTION, MOTION TO VACATE, ATTORNEYS.

DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT). 11

CONVICTION, MOTION TO VACATE, ATTORNEYS.

DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT). 11

DEPORTATION, APPEALS.

BECAUSE THE DEFENDANT WAS MADE AWARE OF THE POSSIBILITY OF DEPORTATION MONTHS BEFORE HE PLED GUILTY, HIS ARGUMENT THAT THE TRIAL JUDGE DID NOT INFORM HIM OF THE IMMIGRATION CONSEQUENCES OF HIS PLEA WAS SUBJECT TO THE PRESERVATION REQUIREMENT; THE FAILURE TO PRESERVE THE ERROR PRECLUDED APPEAL (CT APP). 12

DISCLOSURE.

PROTECTIVE ORDER PRECLUDING DISCLOSURE OF EVIDENCE TO THE DEFENSE REVERSED (SECOND DEPT). 13

DNA.

TESTIMONY SUPPORTING THE ADMISSION OF DNA PROFILES WAS HEARSAY WHICH VIOLATED THE CONFRONTATION CLAUSE (CT APP). 14

IDENTIFICATION.

IT WAS (HARMLESS) ERROR TO ALLOW A POLICE OFFICER TO IDENTIFY DEFENDANT IN SECURITY CAMERA FOOTAGE (FOURTH DEPT). 15

IDENTIFICATION.

LINEUP IDENTIFICATION WAS UNDULY SUGGESTIVE, CONVICTION REVERSED (SECOND DEPT). 15

INCLUSORY CONCURRENT COUNTS, IMPEACHMENT, POLICE OFFICERS.

SECOND DEGREE MURDER COUNTS DISMISSED AS INCLUSORY CONCURRENT COUNTS RE FIRST DEGREE MURDER; CROSS EXAMINATION OF A POLICE OFFICER RE EXCESSIVE FORCE PROPERLY PRECLUDED BECAUSE THE ALLEGATIONS WERE NOT RELEVANT TO CREDIBILITY (SECOND DEPT). 16

JUDGES, DISQUALIFICATION.

JUDGE WHO WAS THE DISTRICT ATTORNEY WHEN DEFENDANT WAS INDICTED WAS DISQUALIFIED FROM HEARING DEFENDANT’S MOTION TO VACATE HIS CONVICTION (FOURTH DEPT). 17

JURY INSTRUCTIONS, JUSTIFICATION DEFENSE.

THE JURY WAS NOT PROPERLY INSTRUCTED ON THE JUSTIFICATION DEFENSE, INDICTMENT COUNT DISMISSED (SECOND DEPT). 17

JURY NOTES.

REVERSAL IS NOT REQUIRED WHEN A JURY NOTE WHICH WAS NOT ADDRESSED BY THE COURT HAD NO DIRECT RELEVANCE TO THE CHARGED OFFENSE (THIRD DEPT). 18

LEGALLY SUFFICIENT EVIDENCE, JURY INSTRUCTIONS, APPEALS.

ALTHOUGH THE ASSAULT JURY INSTRUCTION DID NOT TRACK THE INDICTMENT, THE PEOPLE DID NOT OBJECT TO IT AND THE APPELLATE COURT MUST ASSESS THE SUFFICIENCY OF THE EVIDENCE ACCORDING TO THE INSTRUCTION; ASSESSED IN THE LIGHT OF THE JURY INSTRUCTION, THE ASSAULT COUNTS WERE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE; THE CRIMINAL USE OF A FIREARM JURY INSTRUCTION DID NOT TRACK THE INDICTMENT, VIOLATING DEFENDANT’S RIGHT TO BE TRIED ONLY ON THE CRIMES CHARGED (FOURTH DEPT). 19

PLEA AGREEMENTS.

DEFENDANT WAS ENTITLED TO SPECIFIC PERFORMANCE OF THE PLEA AGREEMENT; COUNTY COURT SHOULD NOT HAVE ORDERED RESTITUTION WHICH WAS NOT ADDRESSED IN THE AGREEMENT (FOURTH DEPT). 20

SENTENCING, ATTORNEYS, INEFFECTIVE ASSISTANCE.

DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING; DEFENSE COUNSEL WAS NOT FAMILIAR WITH THE CASE OR THE DEFENDANT’S BACKGROUND (SECOND DEPT). 21

SENTENCING.

DEFENDANT WAS THREATENED WITH A HARSHER SENTENCE SHOULD SHE DECIDE TO GO TO TRIAL; PLEA VACATED (FOURTH DEPT). 21

SENTENCING, POST-RELEASE SUPERVISION.

FAILURE TO INFORM DEFENDANT OF THE PERIOD OF POST RELEASE SUPERVISION REQUIRED VACATION OF THE SENTENCE; PRESERVATION OF THE ERROR NOT NECESSARY (FIRST DEPT). 22

SENTENCING, SECOND FELONY OFFENDERS.

PENNSYLVANIA CRIME IS NOT THE EQUIVALENT OF A NEW YORK FELONY; DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER (FOURTH DEPT). 23

SENTENCING, YOUTHFUL OFFENDER.

ALTHOUGH COUNTY COURT DID NOT ABUSE ITS DISCRETION, THE APPELLATE COURT EXERCISED ITS INTEREST OF JUSTICE JURISDICTION TO ADJUDICATE DEFENDANT A YOUTHFUL OFFENDER (FOURTH DEPT). 23

SEVERANCE.

DEFENDANT DEMONSTRATED THE NEED TO TESTIFY ABOUT ONE OF THE ROBBERIES AND THE NEED TO REFRAIN FROM TESTIFYING ABOUT THE OTHER ROBBERY; THE MOTION FOR SEVERANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT). 24

SEX OFFENDER REGISTRATION ACT (SORA), JUDGES, SUA SPONTE.

JUDGE SHOULD NOT HAVE, SUA SPONTE, ASSESSED POINTS ON A THEORY NOT RAISED BY THE BOARD OF EXAMINERS OF SEX OFFENDERS OR THE PEOPLE; DEFENDANT WAS THEREBY DEPRIVED OF HIS RIGHT TO DUE PROCESS OF LAW (FOURTH DEPT). 25

SEX OFFENDER REGISTRATION ACT (SORA).

AN ENTRY IN THE CASE SUMMARY ALONE IS NOT A SUFFICIENT BASIS FOR AN ASSESSMENT OF POINTS (FOURTH DEPT). 25

SEX OFFENDER REGISTRATION ACT (SORA).

NEW JERSEY CONVICTION FOR LEWDNESS, ALTHOUGH NOT A REGISTRABLE OFFENSE IN NEW JERSEY, IS THE EQUIVALENT OF ENDANGERING THE WELFARE OF A CHILD; IT IS APPROPRIATE TO CONSIDER THE CONDUCT UNDERLYING THE FOREIGN OFFENSE IN ADDITION TO THE ELEMENTS OF THE OFFENSE; 30 POINT ASSESSMENT BASED ON THE NEW JERSEY CONVICTION WAS CORRECT (CT APP). 26

STREET STOPS.

DEFENDANT WAS ALONE IN HIS CAR ARGUING WITH SOMEONE ON HIS PHONE WHEN THE POLICE APPROACHED; THE POLICE DID NOT HAVE AN OBJECTIVE, CREDIBLE REASON FOR THE APPROACH; THE HANDGUN FOUND IN AN INVENTORY SEARCH SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT). 27

STREET STOPS.

THE POLICE OFFICER DID NOT HAVE A FOUNDED SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED THE DEFENDANT POINTED QUESTIONS IN THIS STREET STOP SCENARIO; THE SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT). 28

SUPERIOR COURT INFORMATIONS.

FAILURE TO INCLUDE THE APPROXIMATE TIME OF THE COMMISSION OF THE OFFENSE IN THE SUPERIOR COURT INFORMATION (SCI) IS NOT A JURISDICTIONAL DEFECT (THIRD DEPT). 29

VICTIM.

THE USE OF THE TERM “VICTIM” TO REFER TO THE COMPLAINING WITNESS AT TRIAL WHERE THE WITNESS’S CREDIBILITY IS IN ISSUE SHOULD BE AVOIDED (THIRD DEPT). 30

WEAPONS.

A REVOLVER WHICH COULD NOT BE CONNECTED TO THE SHOOTING SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE; ERROR HARMLESS HOWEVER (THIRD DEPT). 31

WEIGHT OF THE EVIDENCE, APPEALS.

CRIMINALLY NEGLIGENT HOMICIDE CONVICTION ARISING FROM A TRAFFIC ACCIDENT WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT). 31

WEIGHT OF THE EVIDENCE, APPEALS.

RECKLESS ENDANGERMENT CONVICTION NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; BECAUSE THE LEGAL SUFFICIENCY OF THE CONVICTION WAS NOT CHALLENGED IT MUST BE REVERSED NOT REDUCED BY THE APPELLATE COURT; GRAND LARCENY AND POSSESSION OF STOLEN PROPERTY CONVICTIONS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; INADEQUATE PROOF OF VALUE (FOURTH DEPT). 32