Criminal Law Update August 2020

Criminal Law Update August 2020

(Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

This Course Is Appropriate for Experienced Attorneys

Areas of Professional Practice: 0.5 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 August 1, 2020 and August 31, 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 August 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 0.5 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 August 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 August 2020

Criminal Law Update August 2020 Attorney Affirmation

Criminal Law Update August 2020 Evaluation Survey

Topics Covered in the “Criminal Law Update August 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 August 2020”

APPEALS.

THE FAILURE TO MENTION THE JUSTIFICATION DEFENSE ON THE VERDICT SHEET WAS NOT PRESERVED FOR APPEAL BY AN OBJECTION AND THE INTEREST OF JUSTICE APPELLATE JURISDICTION WILL NOT BE INVOKED WHERE THERE WAS AMPLE OPPORTUNITY TO OBJECT (FIRST DEPT). 6

APPEALS.

THE SIX ‘LURING A CHILD’ CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT). 7

ASSAULT.

ALTHOUGH THE VICTIM’S FACIAL SCARS WERE SHOWN TO THE JURY NO DESCRIPTION OF THE SCARS APPEARS IN THE TRIAL RECORD AND NO PHOTOGRAPH OF THE SCARS WAS INTRODUCED; THEREFORE THE SERIOUS DISFIGUREMENT ELEMENT OF ASSAULT FIRST WAS NOT DEMONSTRATED AND THE ASSAULT FIRST CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE; CONVICTION REDUCED TO ATTEMPTED ASSAULT FIRST (THIRD DEPT). 9

ASSAULT.

THE EVIDENCE OF PHYSICAL INJURY WAS LEGALLY INSUFFICIENT, ASSAULT THIRD CONVICTION REVERSED (SECOND DEPT). 10

BURDEN OF GOING FORWARD (SUPPRESSION HEARING).

DEFENDANT WAS ARRESTED BY OFFICERS WHO BELIEVED HE WAS DEFENDANT’S BROTHER FOR WHOM THERE WERE OUTSTANDING ARREST WARRANTS; THE PEOPLE FAILED TO MEET THEIR BURDEN OF GOING FORWARD AT THE SUPPRESSION HEARING BECAUSE THEY FAILED TO PROVE THE EXISTENCE AND VALIDITY OF THE ARREST WARRANTS (FOURTH DEPT). 11

DARDEN HEARING.

PROOF AT DARDEN HEARING DID NOT DEMONSTRATE THAT THE PURPORTED CONFIDENTIAL INFORMANT EXISTED AND PROVIDED SUFFICIENT INFORMATION TO SUPPORT THE ISSUANCE OF A SEARCH WARRANT (SECOND DEPT). 12

DISCOVERY (WITNESS SAFETY).

PEOPLE’S REQUEST TO WITHHOLD DISCOVERY UNTIL FIFTEEN DAYS BEFORE A HEARING OR TRIAL, FOR THE WITNESSES’ SAFETY, SHOULD HAVE BEEN GRANTED (SECOND DEPT). 13

GUILTY PLEAS.

BECAUSE THE PLEA AGREEMENT COULD NO LONGER BE COMPLIED WITH DEFENDANT’S GUILTY PLEA MUST BE VACATED; UNDER THE AGREEMENT DEFENDANT’S SENTENCE WAS TO RUN CONCURRENTLY WITH THE SENTENCE ON A SEPARATE INDICTMENT, BUT THAT SEPARATE INDICTMENT WAS DISMISSED AFTER APPEAL (FOURTH DEPT). 14

GUILTY PLEAS.

DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMITTED TO GIVE DEFENDANT THE OPPORTUNITY TO WITHDRAW HIS PLEA; MATTER CONSIDERED IN THE INTEREST OF JUSTICE; INEFFECTIVE ASSISTANCE ISSUE DEPENDS ON MATTERS OUTSIDE THE RECORD AND CAN ONLY BE ADDRESSED BY A MOTION TO VACATE (FOURTH DEPT). 15

GUILTY PLEAS.

THE MAJORITY DID NOT CONSIDER THE ARGUMENT DEFENDANT WAS NOT ADEQUATELY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY BECAUSE THE ISSUE WAS NOT PRESERVED; THE TWO-JUSTICE DISSENT ARGUED THE APPEAL SHOULD BE CONSIDERED IN THE INTEREST OF JUSTICE AND THE CONVICTION REVERSED (THIRD DEPT). 16

GUILTY PLEAS.

THE RECORD WAS NOT SUFFICIENT FOR CONSIDERATION OF THE INEFFECTIVE ASSISTANCE ARGUMENT RE WHETHER DEFENDANT WAS ADEQUATELY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA; THE PRECISE NATURE OF COUNSEL’S ADVICE WAS NOT IN THE RECORD; TWO-JUSTICE DISSENT (FIRST DEPT). 17

INCLUSORY CONCURRENT COUNTS.

THE JURY SHOULD HAVE BEEN INSTRUCTED TO CONSIDER THE INCLUSORY CONCURRENT COUNT (MURDER SECOND) AND THE TOP COUNT (MURDER FIRST) IN THE ALTERNATIVE; THE ERROR NEED NOT BE PRESERVED FOR APPEAL (FOURTH DEPT). 18

INCLUSORY CONCURRENT COUNTS.

CONCURRENT INCLUSORY COUNT MUST BE DISMISSED DESPITE FAILURE TO REQUEST THAT IT BE PRESENTED TO THE JURY IN THE ALTERNATIVE IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT). 19

JUDGES.

BY ENTERING A PLEA AGREEMENT WITH A TESTIFYING CODEFENDANT THE TRIAL JUDGE ABANDONED THE ROLE OF A NEUTRAL ARBITER AND DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT). 19

JURY INSTRUCTIONS.

DEFENDANT’S REQUEST FOR THE MISSING WITNESS JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (SECOND DEPT). 20

LESSER INCLUDED COUNTS.

CONVICTION OF A LESSER INCLUDED COUNT OF PREDATORY SEXUAL ASSAULT (I.E. COURSE OF SEXUAL CONDUCT AGAINST A CHILD) VACATED (SECOND DEPT), 21

MENTAL HYGIENE LAW.

RESPONDENT IS A DANGEROUS SEX OFFENDER REQUIRING CONFINEMENT, NOT STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST), SUPREME COURT REVERSED (SECOND DEPT). 22

MENTAL HYGIENE LAW.

THE JURY FOUND THE DEFENDANT SEX OFFENDER DID NOT SUFFER FROM A MENTAL ABNORMALITY WHICH AFFECTED HIS ABILITY TO CONTROL HIS BEHAVIOR AND WAS THEREFORE ENTITLED TO RELEASE; UPON THE STATE’S MOTION THE VERDICT WAS SET ASIDE; THE APPELLATE DIVISION REVERSED FINDING THAT THE STATE WAS NOT PREJUDICED BY ALLEGED JUROR MISCONDUCT (FOURTH DEPT). 23

MOLINEUX.

THE PRIOR BAD ACT EVIDENCE EXCEEDED THAT ALLOWED BY THE MOLINEUX RULING, DEFENDANT’S MURDER CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT). 24

MOLINEUX.

RULING THAT DEFENDANT COULD BE CROSS-EXAMINED ABOUT THREE PRIOR GUN-RELATED CONVICTIONS IF HE TESTIFIED THE SHOOTING WAS AN ACCIDENT DID NOT DEPRIVE DEFENDANT OF THE RIGHT TO PUT ON A DEFENSE; TWO DISSENTERS DISAGREED (SECOND DEPT). 25

SEARCHES.

THE STRIP SEARCH OF DEFENDANT WAS JUSTIFIED AND CONDUCTED PROPERLY (THIRD DEPT). 26

SENTENCING.

DEFENDANT HAS THE RIGHT TO BE PERSONALLY PRESENT AT RESENTENCING ABSENT WAIVER, RESENTENCE REVERSED (SECOND DEPT). 26

SENTENCING.

DEFENDANT SHOULD HAVE BEEN ALLOWED TO MAKE A PERSONAL STATEMENT BEFORE RESENTENCING, RESENTENCE REVERSED (SECOND DEPT). 27

SENTENCING.

THE JUDGE DID NOT PRONOUNCE THE LENGTH OF THE TERM OF PROBATION, SENTENCE VACATED AND MATTER REMITTED (SECOND DEPT). 27

SENTENCING.

THE SENTENCING COURT INDICATED IT COULD NOT DEVIATE FROM ITS SENTENCING AGREEMENT WITH THE PEOPLE BUT SENTENCING COURTS HAVE DISCRETION; SENTENCE VACATED AND MATTER REMITTED FOR RE-SENTENCING (FOURTH DEPT). 28

SEX OFFENDER REGISTRATION ACT (SORA).

DEFENDANT’S PHYSICAL CONDITION AFTER A STROKE WARRANTED A DOWNWARD MODIFICATION OF HIS SORA RISK LEVEL FROM THREE TO TWO (SECOND DEPT). 29

SPEEDY TRIAL.

ALTHOUGH THE PEOPLE SHOULD HAVE DISCOVERED THE PROBLEM WITH CERTAIN EVIDENCE SOONER, FOR SPEEDY TRIAL PURPOSES THE PEOPLE CAN BE CHARGED ONLY WITH THE TIME NECESSARY TO INVESTIGATE THE NEWLY DISCOVERED EVIDENTIARY ISSUE; THE NEED FOR MORE INVESTIGATION DID NOT INVALIDATE THE PEOPLE’S STATEMENT OF READINESS WHICH WAS WITHDRAWN; THEREFORE THE INDICTMENT SHOULD NOT HAVE BEEN DISMISSED ON SPEEDY TRIAL GROUNDS (FOURTH DEPT). 29

TRAFFIC STOPS.

POLICE OFFICER WAS JUSTIFIED IN FOLLOWING DEFENDANT’S CAR AFTER OBSERVING A TRAFFIC VIOLATION, DIRECTING THE OCCUPANTS OF THE CAR TO RETURN TO THE CAR AFTER IT PULLED INTO A RESIDENTIAL DRIVEWAY, AND DETAINING THE DEFENDANT AND CONDUCTING A SEARCH ON THE PROPERTY AFTER THE HOMEOWNER SAID HE DID NOT KNOW THE OCCUPANTS OF THE CAR (THIRD DEPT). 30

VERDICTS (SET ASIDE).

TRIAL COURT MAY NOT SET ASIDE THE VERDICT PURSUANT TO CPL 330.30 ON A GROUND WHICH DOES NOT REQUIRE REVERSAL AS A MATTER OF LAW–HERE THE ALLEGED FACTUAL INCONSISTENCY BETWEEN THE CONVICTION OF ENDANGERING THE WELFARE OF A CHILD AND THE ACQUITTALS ON ALL THE OTHER SEXUAL-OFFENSE COUNTS (SECOND DEPT). 31