Criminal Law Update December 2020

Criminal Law Update December 2020

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

Appropriate 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 December 1, 2020 and December 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 March 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 December 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 December 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 December 2020

Criminal Law Update December 2020 Attorney Affirmation

Criminal Law Update December 2020 Evaluation Survey

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

710.30 NOTICE. 8

DEFENDANT WAS ENTITLED TO NOTICE THE PEOPLE WERE GOING TO PRESENT EVIDENCE SHE TYPED IN THE COMBINATION TO A SAFE IN RESPONSE TO A REQUEST FROM A DETECTIVE, NEW TRIAL ORDERED (SECOND DEPT). 8

ALIBI EVIDENCE. 9

ALTHOUGH DEFENDANT DID NOT GIVE TIMELY NOTICE OF ALIBI EVIDENCE, COUNTY COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE BY PRECLUDING THE ALIBI EVIDENCE; THE UNPRESERVED ERROR WAS CONSIDERED IN THE INTEREST OF JUSTICE (THIRD DEPT). 9

APPEAL, WAIVER OF, ATTORNEYS, INEFFECTIVE ASSISTANCE. 10

THE APPEAL WAIVERS WERE NOT EXECUTED UNTIL SENTENCING AND WERE THEREFORE INVALID; ARGUMENTS ABOUT A LATE FILED OMNIBUS MOTION AND DEFENSE COUNSEL’S FAILURE TO FILE OMNIBUS MOTIONS DID NOT SURVIVE THE GUILTY PLEAS (FOURTH DEPT). 10

APPEAL, WAIVER OF. 11

A NUMBER OF GUILTY-PLEA CONVICTIONS REVERSED BECAUSE THE DEFENDANTS WERE TOLD THE WAIVER OF APPEAL WAS AN ABSOLUTE BAR TO APPEAL (CT APP). 11

APPEALS, JUDGES, SUPPRESSION RULINGS. 12

SUPREME COURT SHOULD NOT HAVE DENIED SUPPRESSION ON A GROUND NOT RAISED BY THE PARTIES; THE APPELLATE COURT IS POWERLESS TO REVIEW THAT ISSUE; THE APPELLATE COURT IS ALSO POWERLESS TO REVIEW THE SECOND GROUND FOR SUPPRESSION ARGUED BY THE PEOPLE ON APPEAL BECAUSE THAT SECOND ISSUE WAS RESOLVED BELOW IN DEFENDANT’S FAVOR; MATTER SENT BACK TO SUPREME COURT FOR REVIEW OF THE SECOND ISSUE SHOULD THE PEOPLE BE SO ADVISED (SECOND DEPT). 12

ASSAULT. 13

EVIDENCE OF SERIOUS PHYSICAL INJURY INSUFFICIENT, ASSAULT SECOND CONVICTION VACATED (SECOND DEPT). 13

ATTEMPT, STING. 14

DEFENDANT WAS THE TARGET OF A STING WHERE THE INVESTIGATOR POSED AS THE STEPFATHER OF A 14-YEAR-OLD GIRL WITH WHOM THE DEFENDANT WAS INVITED TO HAVE SEX; WHEN THE INVESTIGATOR SUMMONED THE STEPDAUGHTER TO MEET THE DEFENDANT, HE GOT UP AND WALKED AWAY; THE ATTEMPTED RAPE, CRIMINAL SEXUAL ACT AND ENDANGERING THE WELFARE OF A CHILD CONVICTIONS WERE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (THIRD DEPT). 14

ATTORNEYS, RIGHT TO COUNSEL. 15

DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN HE REPRESENTED HIMSELF AT RESENTENCING (FOURTH DEPT). 15

BEST EVIDENCE RULE, SURVEILLANCE VIDEO. 16

AN EXCEPTION TO THE BEST EVIDENCE RULE APPLIED, ALLOWING TESTIMONY DESCRIBING THE CONTENTS OF DESTROYED VIDEO SURVEILLANCE (FOURTH DEPT). 16

COMPETENT TO STAND TRIAL, JUDGES. 17

UNDER THE CIRCUMSTANCES, SUPREME COURT SHOULD HAVE GRANTED THE DEFENSE AND PROSECUTION’S JOINT REQUEST TO HAVE THE DEFENDANT’S COMPETENCE TO STAND TRIAL EVALUATED; ONCE A DEFENDANT IS DEEMED COMPETENT TO STAND TRIAL, THE DECISION WHETHER TO PRESENT AN INSANITY DEFENSE IS THE DEFENDANT’S, NOT THE COURT’S, TO MAKE (SECOND DEPT). 17

CONTEMPT. 18

DEFENDANT’S CONTEMPT CONVICTION FOR VIOLATING AN ORDER OF PROTECTION STANDS, DESPITE THE FACT THAT THE ORDER OF PROTECTION WAS BASED ON AN OFFENSE SINCE FOUND UNCONSTITUTIONAL (FIRST DEPT). 18

CONTEMPT. 19

STATUTORY CRITERIA FOR CRIMINAL CONTEMPT FIRST DEGREE NOT MET; CONVICTION REDUCED TO CRIMINAL CONTEMPT SECOND DEGREE (SECOND DEPT). 19

DOUBLE JEOPARDY. 20

ALTHOUGH THE TWO INDICTMENTS ALLEGED THE SAME MODUS OPERANDI FOR MEDICAID FRAUD, THE CHARGES INVOLVED DIFFERENT PARTIES AND TIME PERIODS; THE WRIT OF PROHIBITION SEEKING TO PRECLUDE PROSECUTION ON DOUBLE JEOPARDY GROUNDS DENIED OVER A DISSENT (FIRST DEPT). 20

EVIDENCE, IRRELEVANT. 20

IT WAS ERROR TO ALLOW IN EVIDENCE PHOTOGRAPHS OF A BAYONET WHICH WAS NOT THE WEAPON USED IN THE STABBING; THE MAJORITY FOUND THE ERROR HARMLESS, THE DISSENT DISAGREED (FIRST DEPT). 20

EVIDENCE, SUPPRESSION HEARING, LEGALITY OF POLICE CONDUCT. 21

THE POLICE WITNESSES AT THE SUPPRESSION HEARING WERE NOT CREDIBLE; THEREFORE DEFENDANT’S SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED AND THE INDICTMENT DISMISSED (SECOND DEPT). 21

FORGERY. 22

A DEFENDANT CAN NOT BE CONVICTED OF BOTH FORGERY AND POSSESSION OF A FORGED INSTRUMENT WITH RESPECT TO THE SAME FORGED INSTRUMENT (SECOND DEPT). 22

GRAND JURIES, JUSTIFICATION DEFENSE. 23

THE CHARGES AGAINST DEFENDANT STEMMED FROM HIS STRIKING AND SERIOUSLY INJURING AN EIGHT-POUND DOG; THERE WAS NO NEED TO INSTRUCT THE GRAND JURY ON THE JUSTIFICATION DEFENSE; INDICTMENT REINSTATED OVER A DISSENT (SECOND DEPT). 23

GUILTY PLEAS, ATTORNEYS, RIGHT TO COUNSEL. 24

DEFENDANT WAS HOUSED HOURS AWAY FROM HIS BROOKLYN ATTORNEY AND ATTEMPTS TO MOVE DEFENDANT TO NEW YORK CITY WERE UNSUCCESSFUL; UNDER THE CIRCUMSTANCES, DEFENDANT WAS DENIED HIS RIGHT TO CONSULT WITH HIS ATTORNEY BEFORE ENTERING A GUILTY PLEA; THE MOTION TO VACATE THE PLEA SHOULD HAVE BEEN GRANTED (SECOND DEPT). 24

GUILTY PLEAS, JUDGES. 25

DEFENDANT WAS NOT INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, THE JUDGE IMPROPERLY IMPOSED AN ENHANCED SENTENCE AND CHANGED THE TERMS OF THE PLEA AGREEMENT; GUILTY PLEA VACATED IN THE INTEREST OF JUSTICE (THIRD DEPT). 25

GUILTY PLEAS. 26

DEFENDANT, AT THE PLEA PROCEEDINGS, WAS NOT INFORMED OF THE PERIOD OF POSTRELEASE SUPERVISION TO BE IMPOSED OR THE MAXIMUM WHICH COULD BE IMPOSED; GUILTY PLEA VACATED (SECOND DEPT). 26

IDENTITY. 27

A PHOTOGRAPH OF DEFENDANT WITH A HANDGUN TAKEN SIX WEEKS BEFORE THE SHOOTING WAS PROPERLY ADMITTED IN EVIDENCE AS TENDING TO SHOW HIS IDENTITY AS THE SHOOTER (FIRST DEPT). 27

INCLUSORY CONCURRENT COUNTS. 27

ASSAULT THIRD IS AN INCLUSORY CONCURRENT COUNT OF ASSAULT SECOND (SECOND DEPT). 27

INCLUSORY CONCURRENT COUNTS. 28

ATTEMPTED SECOND DEGREE MURDER COUNT MUST BE DISMISSED AS AN INCLUSORY CONCURRENT COUNT OF ATTEMPTED FIRST DEGREE MURDER (FOURTH DEPT). 28

INCLUSORY CONCURRENT COUNTS. 28

CRIMINAL POSSESSION OF A WEAPON SECOND DEGREE AND CRIMINAL POSSESSION OF A FIREARM ARE INCLUSORY CONCURRENT COUNTS (SECOND DEPT). 28

INDICTMENT, WAIVER OF. 29

THE OMISSION OF NON-ELEMENTAL FACTUAL INFORMATION, HERE THE TIME OF THE INCIDENT, FROM THE WAIVER OF INDICTMENT FORM WAS A DEFECT WAIVED BY THE GUILTY PLEA (CT APP). 29

INDICTMENTS, IDENTITY, MOLINEUX. 29

ALL BUT ONE COUNT OF THE INDICTMENT WAS RENDERED DUPLICITOUS BY THE CHILD-VICTIM’S GRAND JURY TESTIMONY IN THIS SEXUAL ABUSE CASE; THE SIMILAR UNCHARGED OFFENSES SHOULD NOT HAVE BEEN ADMITTED UNDER MOLINEUX AS BACKGROUND EVIDENCE; NEW TRIAL ORDERED (THIRD DEPT). 29

JURIES, DUAL JURIES. 30

THE “DUAL JURY” PROCEDURE USED TO TRY DEFENDANT, WHO WAS CONVICTED, AND THE CO-DEFENDANT, WHO WAS ACQUITTED, ALLOWED THE CO-DEFENDANT’S ATTORNEY TO ACT AS A SECOND PROSECUTOR; CONVICTIONS REVERSED AND NEW TRIAL ORDERED (FIRST DEPT). 30

JURORS. 31

AFTER THE DISCHARGE OF A JUROR FOR MISCONDUCT, THE TRIAL COURT PROPERLY REPLACED THE JUROR WITH AN ALTERNATE WHO HAD BEEN EXCUSED AND SENT HOME; THERE WAS A DISSENT (FIRST DEPT). 31

LESSER INCLUDED COUNTS. 32

SECOND DEGREE MURDER COUNT DISMISSED A LESSER INCLUDED COUNT OF FIRST DEGREE MURDER (FOURTH DEPT). 32

MATERIAL STAGES, DEFENDANT’S RIGHT TO BE PRESENT. 33

DEFENDANT WAS REMOVED FROM THE COURTROOM WHEN HE DISRUPTED THE PROCEEDINGS AS THE GUILTY VERDICT WAS BEING DELIVERED; DEFENDANT SHOULD FIRST HAVE BEEN WARNED THAT HE WOULD BE REMOVED IF HE CONTINUED TO DISRUPT THE PROCEEDINGS; NEW TRIAL ORDERED (SECOND DEPT). 33

SENTENCING, JUDGES. 34

DEFENDANT WAS REPEATEDLY WARNED HE COULD BE SENTENCED TO 45 YEARS AFTER TRIAL WHEN, IN FACT, HIS SENTENCE WOULD BE CAPPED AT 20 YEARS; DEFENDANT WAS NOT AWARE OF THIS GROUND FOR AN ATTACK ON HIS SENTENCE AND THEREFORE DID NOT NEED TO PRESERVE THE ISSUE FOR APPEAL BY MOVING TO WITHDRAW THE PLEA; PLEA VACATED (FIRST DEPT). 34

SENTENCING, JUDGES. 35

SENTENCE IMPOSED AFTER THE SECOND TRIAL SHOULD NOT HAVE BEEN HIGHER THAN THE SENTENCE IMPOSED AFTER THE FIRST TRIAL (SECOND DEPT). 35

SENTENCING, JUDGES. 36

THE APPELLATE DIVISION REDUCED DEFENDANT’S SENTENCE, IN PART BECAUSE THE SENTENCING JUDGE MAY HAVE BEEN REACTING TO CRITICISM OF HOW THE TRIAL WAS HANDLED (SECOND DEPT). 36

SENTENCING, YOUTHFUL OFFENDERS. 37

CONSIDERING ALL THE MITIGATING FACTORS, DEFENDANT SHOULD HAVE BEEN ADJUDICATED A YOUTHFUL OFFENDER (FOURTH DEPT). 37

SENTENCING. 38

DESPITE THE HORRIFIC NATURE OF THE CRIME, DEFENDANT’S SENTENCE WAS REDUCED BECAUSE OF HIS MENTAL ILLNESS AND INTELLECTUAL DISABILITY (FIRST DEPT). 38

SENTENCING. 39

THE SENTENCING COURT DID NOT CONSIDER THE REQUIRED FACTORS WHEN SENTENCING DEFENDANT AFTER DEFENDANT’S VIOLATION OF THE TERMS OF INTERIM PROBATION; SENTENCE VACATED (FOURTH DEPT). 39

SEX OFFENDER REGISTRATION ACT (SORA). 40

DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE FROM LEVEL TWO TO LEVEL ONE IN THIS CHILD PORNOGRAPHY CASE (FIRST DEPT). 40

SEX OFFENDER REGISTRATION ACT (SORA). 41

THE SEXUAL INTERCOURSE WAS DEEMED NONCONSENSUAL SOLELY BECAUSE THE VICTIM WAS 14; THE DEFENDANT WAS 27; DEFENDANT WAS NOT ENTITLED TO A DOWNWARD DEPARTURE TO RISK LEVEL ONE; THERE WAS A SUBSTANTIVE DISSENT (FIRST DEPT). 41

SEX OFFENDER REGISTRATION ACT (SORA). 41

UPWARD DEPARTURE SUPPORTED BY EVIDENCE DEFENDANT COMMITTED RAPE TO TAKE REVENGE UPON SOMEONE OTHER THAN THE VICTIM; THE FACT DEFENDANT HAD BEEN DEPORTED DID NOT RENDER THE APPEAL MOOT (CT APP). 41

STREET STOPS, APPEAL, WAIVER OF. 42

THE WAIVER OF APPEAL WAS INVALID BECAUSE THE JUDGE SUGGESTED THE WAIVER WAS AN ABSOLUTE BAR TO APPEAL; THE OFFICER WHO APPROACHED DEFENDANT ON THE STREET WAS NOT JUSTIFIED IN REACHING FOR AN OBJECT IN DEFENDANT’S SWEATSHIRT POCKET; DEFENDANT’S FLIGHT AND DISCARDING OF THE WEAPON WAS NOT INDEPENDENT OF THE OFFICER’S UNJUSTIFIED ACTIONS; THE GUN SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT). 42

WARRANTLESS ARREST INSIDE HOME. 43

ALTHOUGH IT APPEARS THE POLICE HAD PROBABLE CAUSE TO ARREST THE DEFENDANT BEFORE THEY ENTERED THE HOME AND THEREFORE COULD HAVE GOTTEN AN ARREST WARRANT, THERE WAS NO CONSTITUTIONAL VIOLATION BECAUSE THE POLICE ENTERED THE HOME WITH CONSENT; DEFENSE COUNSEL ARGUED THE POLICE DID NOT GET A WARRANT TO DELAY THE ATTACHMENT OF THE RIGHT TO COUNSEL AND PROCURE STATEMENTS (SECOND DEPT). 43

WEAPON, INVOLUTARY POSSESSION OF A. 44

EVEN THOUGH THE DEFENDANT ARGUED HE NEVER HAD ACTUAL OR CONSTRUCTIVE POSSESSION OF THE WEAPON FOUND IN ANOTHER’S HOUSE, DEFENDANT WAS ENTITLED TO THE “INVOLUNTARY POSSESSION” JURY INSTRUCTION; POSSESSION, EITHER ACTUAL OR CONSTRUCTIVE, IS NOT VOLUNTARY IF IT IS FOR SO BRIEF A PERIOD OF TIME THAT THE DEFENDANT COULD NOT HAVE TERMINATED POSSESSION (CT APP). 44

WEAPON, TEMPORARY INNOCENT POSSESSION OF A. 45

DEFENDANT, WHO ACCEPTED POSSESSION OF THE WEAPON FROM HIS FRIEND, DID SO IN ANTICIPATION OF A POSSIBLE CONFRONTATION; DURING THE CONFRONTATION DEFENDANT SHOT TWO PEOPLE; THE ARGUMENT THAT DEFENDANT ACTED IN SELF-DEFENSE DID NOT RENDER DEFENDANT’S POSSESSION OF THE WEAPON TEMPORARY AND LAWFUL (CT APP). 45

WITNESS TAMPERING. 47

WITNESS TAMPERING CONVICTION AFTER TRIAL REVERSED; NO CHARGES WERE PENDING AT THE TIME OF THE COMMUNICATIONS WITH THE WITNESS (FOURTH DEPT). 47