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Failure to Challenge Conviction Rendered Invalid by Not Advising Defendant of the Period of Post Release Supervision [PRS] Constitutes Ineffective Assistance of Counsel

The First Department determined the defendant did not receive effective assistance of counsel when he was sentenced as a predicate felony offender.  Counsel failed to challenge a 2000 conviction upon a guilty plea which was invalid because defendant was not apprised of the period of post release supervision (PRS) which was subsequently imposed. The fact that the PRS was later removed from the sentence did not cure the error because the defendant had already served four years of PRS and had spent time in jail for a violation of supervision:

In connection with the 2000 conviction, Supreme Court, New York County added postrelease supervision to the sentence in 2009 to cure an unlawful administrative imposition of PRS … . In May, 2010 that court removed PRS from the sentence in accordance with People v Williams (14 NY3d 198 [2010]). Contrary to the People’s sole argument on appeal addressing the Catu issue [the initial failure to advise defendant of the period of post release supervision], the vacatur of defendant’s PRS could not cure the Catu error, or give defendant the benefit of his plea, since at the time of the vacatur he had already served four years of PRS, and had also spent time in jail in violation of that supervision. …

In connection with the instant CPL 440.20 motion [motion to vacate the sentence], the attorney who represented defendant at his 2010 persistent violent felony offender adjudication and sentencing acknowledged that he had no strategic reason for failing to challenge the 2000 conviction, and that he never inquired into whether defendant had been advised about PRS at his 2000 plea proceeding. He further affirmed that had he been aware that the conviction was obtained in violation of Catu, he would have in fact challenged its use to enhance defendant’s sentence in this case. Thus, this was not a case where an attorney may have reasonably believed that it would have been futile to raise a Catu issue regarding the constitutionality, for predicate felony purposes, of defendant’s 2000 conviction, or that the law was unclear on this issue… .  People v Fagan, 2014 NY Slip Op 02344, 1st Dept 4-3-14

 

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Questioning of Witnesses by Trial Judge Did Not Deprive Defendant of a Fair Trial

The First Department, in a full-fledged opinion by Justice Andrias, determined that the participation of the judge in the questioning of witnesses did not rise to the level of depriving the defendant of a fair trial:

The guarantee of a fair trial does not “inhibit a Trial Judge from assuming an active role in the resolution of the truth” … . Thus, a trial judge is permitted “to question witnesses to clarify testimony and to facilitate the progress of the trial,” and, if necessary, to develop factual information … . However, a judge may not “take [] on either the function or appearance of an advocate at trial” … .

The “substance and not the number of questions asked is the important consideration” … . Even if a trial judge makes intrusive remarks that would better have been left unsaid, or questions witnesses extensively, the defendant is not thereby deprived of a fair trial so long as the jury is “not prevented from arriving at an impartial judgment on the merits” … . Notably, although the exercise of a trial court’s power to question witnesses should be exercised “sparingly” …, “in the case of expert testimony, the court’s intervention is often necessary to assist the jurors in comprehending matters of specialized knowledge” … , and the trial judge is afforded greater leeway.

The record before us establishes that the trial court did not take on the function and appearance of an advocate. * * *

Furthermore, although it is true that a “claim that the intrusion of the Trial Judge deprived [the defendant] of his constitutional right to a fair trial is not subject to harmless error analysis” …, the strength or weakness of the evidence may be considered as a factor in determining whether the defendant received a fair trial … .  People v Adams, 2014 NY Slip Op 02349, 1st Dept 4-3-14

 

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Dismissal of Indictment On Ground that Law Enforcement Personnel Improperly Issued a Subpoena for Defendant’s Financial Records Reversed/Defendant Did Not Have Standing to Challenge the Subpoena and Issuance of the Subpoena Did Not Violate Defendant’s Constitutional Rights

The Second Department determined that the trial court should not have dismissed an indictment in the interest of justice on the ground that law enforcement personnel improperly issued a subpoena to Citibank for defendant’s financial records.  The court noted that defendant did not have standing to challenge the subpoena because he did not have a proprietary interest in the records:

Even assuming, arguendo, that the subpoena was improperly issued, the defendant had no standing to challenge the validity of the subpoena … as he had no possessory or proprietary interest in the bank’s records … . Further, any impropriety in the issuance of the subpoena did not implicate the defendant’s constitutional rights … or federal statutory rights … . Since any misconduct on the part of law enforcement in issuing the subpoena did not implicate the defendant’s rights or interests, justice did not require dismissal of the subject counts of the indictment on the basis of any such misconduct. Further, for the reasons noted above, suppression of the Citibank records was not proper either as a sanction for alleged misconduct or for an alleged violation of the defendant’s Fourth Amendment rights… . People v Adeniran, 2014 NY Slip Op 02302, 2nd Dept 4-2-14

 

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Failure to Prove Shared Intent (Accessorial Liability) Required Dismissal of Robbery Counts Under a Weight of the Evidence Analysis

The Second Department, after a weight of the evidence review, determined there was insufficient proof defendant shared the intent to commit the robbery and dismissed the relevant counts of the indictment:

Here, the defendant was convicted of two counts of attempted robbery in the second degree under a theory of accessorial liability. “To sustain a conviction based upon accessorial liability, the evidence . . . must prove beyond a reasonable doubt that the accused acted with the mental culpability necessary to commit the crime charged and that, in furtherance thereof, he solicited, requested, commanded, importuned or intentionally aided the principal to commit such crime'” (…see Penal Law § 20.00…).Upon the exercise of our factual review power (see CPL 470.15), we determine, in the first instance, that acquittal of the charges of attempted robbery in the second degree would not have been unreasonable based upon the evidence presented and, moreover, that the jury failed to accord the evidence the weight it should have been accorded … . The evidence presented at trial did not establish, beyond a reasonable doubt, that the defendant shared the intent to commit robbery, or that he solicited, requested, commanded, importuned, or intentionally aided the principal in committing the offense of attempted robbery in the second degree. Accordingly, the convictions of attempted robbery in the second degree and the sentences imposed thereon must be vacated, and those counts of the indictment must be dismissed … . People v Marchena, 2014 NY Slip Op 02312, 2nd Dept 4-2-14

 

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Mischaracterization of a Jury Note Required Reversal

The Second Department determined that the trial court’s mischaracterization of a jury note required reversal:

The Supreme Court mischaracterized the contents of the note to counsel as merely requesting a readback of the elements of the charged offenses rather than as indicating the jury’s apparent erroneous impression that proof of a single element of each crime was sufficient to render a guilty verdict … . In thus mischaracterizing the note, the Supreme Court did not afford defense counsel the opportunity to participate in the formulation of the court’s response to the jury’s confusion. “Since defense counsel was not afforded the opportunity to provide suggestions, [s]he was prevented from participating meaningfully at this critical stage of the proceedings” … . “In the absence of record proof that the trial court complied with its core responsibilities under CPL 310.30, a mode of proceedings error occurred requiring reversal” (People v Tabb, 13 NY3d 852, 853), despite defense counsel’s failure to object to the court’s treatment of the jury note … . Furthermore, meaningful notice of the contents of a jury note must take place on the record … . Accordingly, contrary to the People’s contention, a reconstruction hearing to determine whether counsel was provided with the note off the record would be neither appropriate nor helpful … . People v Giraldo, 2014 NY Slip Op 02309, 2nd Dept 4-2-14

 

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Downward Departure Warranted in SORA Proceeding Where Victim’s Lack of Consent Was Solely By Virtue of Age

The Second Department, over a dissent, determined the fact that the victim’s lack of consent to sexual intercourse was due solely to the inability to consent by virtue of age warranted a downward departure in a SORA proceeding. The court noted that, although the victim became pregnant, there was no evidence the defendant intended to make the victim pregnant, and the defendant pays child support and visits the child often:

…[T]he SORA Guidelines provide that “[a] court may choose to downwardly depart from the risk assessment in an appropriate case and in those instances where (i) the victim’s lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points [for sexual contact with the victim, risk factor 2] results in an over-assessment of the offender’s risk to public safety'” … . The evidence in this case proves the existence of the facts supporting this ground for departure.It is true, as our dissenting colleague points out, that there was an 11-year difference in age between the defendant and the victim, and that the victim became pregnant as a result of the defendant’s crime. We share our colleague’s concern about these facts and about the significance of the age differential … . Nevertheless, the purposes of the SORA Guidelines are to assess the risk that a sex offender will reoffend and the offender’s threat to public safety (see Correction Law § 168-l[5]). There is no evidence here that the defendant committed his crime with the intention that the victim become pregnant, so the fact that a pregnancy did result is irrelevant to the SORA risk level determination. Moreover, the evidence at the hearing demonstrated that the defendant pays child support to the victim. While, as our dissenting colleague points out, payment of child support is a legal obligation, it was undisputed at the hearing that the defendant not only pays child support, but that he also regularly travels a significant distance to visit the child. People v Marsh, 2014 NY Slip Op 02274, 2nd Dept 4-2-14

 

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Brutality of Offense Warranted an Upward Departure in SORA Proceeding

The Second Department determined the brutality involved in the offense warranted an upward departure:

…[I]n light of the extreme brutality and violence of the defendant’s conduct in his commission of the underlying crimes, which included holding the victim hostage in her home over the course of approximately 13 hours, repeatedly threatening to stab her with a knife and burn her to death with gasoline, raping her twice, locking her in a closet, choking and punching her, and engaging in a standoff with the police, the County Court properly determined that there were aggravating factors not adequately taken into account by the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary … . Upon making such a determination, the County Court providently exercised its discretion in granting the People’s application for an upward departure from a level two to a level three sex offender … . People v Soevyn, 2014 NY Slip Op 02275, 2nd Dept 4-2-14

 

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Driver of Middle Car in Chain Collision May Not Be Negligent

The Second Department explained the status of the “middle car” in a “chain” rear-end collision. The driver of a vehicle which is struck from behind and pushed into the rear of plaintiff’s vehicle may not be negligent:

“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway” (Vehicle and Traffic Law § 1129[a]…). Hence, a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . In chain collision accidents, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was struck from behind by the rear vehicle and propelled into the lead vehicle … .Here, in support of her motion, the plaintiff submitted evidence including the deposition testimony of the defendant driver, who testified that an unidentified vehicle struck his vehicle in the rear, causing his vehicle to move forward and strike the rear of the plaintiff’s vehicle. This testimony revealed the existence of a triable issue of fact as to whether the defendant driver was at fault in the happening of the accident … . Kuris v El Sol Contr & Contr Corp, 2014 NY Slip Op 02268, 2nd Dept 4-2-14

 

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A Forged Deed Is Void Ab Initio and Conveys Nothing to a Bona Fide Purchaser or Encumbrancer

The Second Department explained the effect of a forged deed on all subsequent transactions in which the forged deed is involved:

“A deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid” … . “If a document purportedly conveying a property interest is void, it conveys nothing, and a subsequent bona fide purchaser or bona fide encumbrancer for value receives nothing” … . Jiles v Archer, 2014 NY Slip Op 02262, 2nd Dept 4-2-14

 

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Pre-Deposition Motion for Summary Judgment Should Not Have Been Granted

The Second Department determined a pre-deposition motion for summary judgment was premature and should not have been granted:

“A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party’s position may exist but cannot then be stated” … . This is especially so where the motion for summary judgment was made prior to the parties conducting depositions … .Here, an award of summary judgment would be premature at this stage of the action. The plaintiff’s motion for summary judgment was made prior to the deposition of the plaintiff. In light of the fact that the plaintiff was the sole witness to the accident, and that his account of the accident has been placed in issue, the defendant should have been afforded the opportunity to conduct his deposition … . Schlichting v Elliquence Realty LLC, 2014 NY Slip Op 02281, 2nd Dept 4-2-14

 

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