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40 Month Pre-Trial Delay Did Not Violate Due Process

In determining a 40-month delay did not deprive defendant his right to due process, the Fourth Department wrote:

In determining whether there has been an undue delay, a court must consider several factors, including “ ‘(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay’ ” (People v Decker, 13 NY3d 12, 15, quoting People v Taranovich, 37 NY2d 442, 445…).

Upon applying the Taranovich factors to the facts before us, we conclude that the delay did not deprive defendant of his right to due process.  We agree with defendant that the rape in the first degree charge “can only be described as serious” … .  Conversely, although the 40-month delay in commencing the prosecution was substantial, it was not per se unreasonable ….  Furthermore, defendant was not incarcerated for an extended period prior to the trial on these charges, and there is no evidence that defendant was prejudiced by the delay in commencing the prosecution.  Finally, the reason for the delay in this case was the police detective’s inability to fully identify and locate defendant.  That excuse was not unreasonable inasmuch as the victim was unable to identify defendant from mug shots or otherwise ascertain which of the 32 men in the Buffalo Police Department’s identification system with defendant’s name was the perpetrator. People v White, 817, 4th Dept 7-19-13

 

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Insufficient Evidence of History of Alcohol and Drug Abuse in SORA Proceeding

The Fourth Department determined there was insufficient evidence in a SORA proceeding to find defendant had a history of alcohol and drug abuse.  The case summary stated that “Probation identified [defendant’s] continued drug and alcohol abuse as problematic, and he refused to attend treatment for th[at] problem.”  The Court wrote:

There is …no evidence that defendant was ever screened for substance abuse issues …, “only very limited information about his alleged prior history of drug and alcohol abuse” …, and no information about what treatment was recommended or why treatment was recommended ….  Under these circumstances, the case summary alone is insufficient “to satisfy the People’s burden of establishing that risk factor by clear and convincing evidence” ….

Further, defendant’s prior convictions for criminal possession and sale of marihuana and criminal possession of a controlled substance in the seventh degree do not constitute clear and convincing evidence that defendant used drugs, let alone that he had a history of abusing them … .  During the presentence investigation, defendant never admitted to using drugs or alcohol, and he denied abusing any substances at the SORA hearing … Defendant’s admission that he was intoxicated during a previous incident, which led to a rape charge that was subsequently dismissed, is insufficient to establish that his sexual misconduct can “be characterized by repetitive and compulsive behavior[] associated with drugs or alcohol” (Correction Law § 168-l [5] [a] [ii]), especially because defendant does not have any other history of intoxication with respect to his sexual offenses, including the instant offenses ….  Consequently, as noted, the People failed to meet their burden of establishing by clear and convincing evidence that defendant had a history of alcohol or drug abuse… .  People v Coger, 815, 4th Dept 7-19-13

 

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Jail Time Does Not Count Toward Subsequent Offense Until Previous Sentence Expired

Defendant was released on parole for a 2001 conviction.  While on parole he committed an offense and was jailed.  The Fourth Department determined that the time defendant was in jail must first be credited to the 2001 conviction.  Only after the 2001 sentence was completely served could any jail time be credited to the subsequent (2009) conviction:

Here, “[a]ny jail time served prior to the maximum expiration date of the [2001] sentence was properly credited toward that sentence until it expired on its own terms on [July 4, 2009] … .  “Thus, the [2009] sentence was properly credited only with jail time served after the expiration of the [2001] sentence” ….  In other words, “petitioner is not entitled to jail time credit against the [2009] sentence for the jail time that was credited against the [2001] sentence”… .  Matter of Grahm v Walsh, 811, 4th Dept 7-19-13

 

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Defendant’s Wearing a Stun Belt During Trial Without Knowledge of Judge Did Not Constitute a “Mode of Proceedings” Error

The Fourth Department determined the defendant’s wearing of a “stun belt” during his trial (unbeknownst to the judge and to which no objection was made) did not constitute a mode of proceedings error.  The dissent argued to the contrary, characterizing the sheriff’s use of the stun belt without the court’s involvement as a usurpation of the power of the court:

County Court could not have granted defendant’s motion under CPL 440.10 (1) (f) unless the unauthorized use of the stun belt at trial constitutes a mode of proceedings error, in which case reversal would have been required on direct appeal if the use of the stun belt had been disclosed on the record … .

We respectfully disagree with our dissenting colleague that the improper use of the stun belt, i.e., at the direction of the Sheriff rather than the court, constitutes a mode of proceedings error.

Indeed, we note that a mode of proceedings error occurs “[w]here the procedure adopted by the court . . . is at a basic variance with the mandate of law” …, and that is not the case here.  We further note that in Buchanan the court deferred to the Sheriff, indeed delegated to the Sheriff, the determination whether defendant should wear the stun belt after the court acknowledged that defendant had done nothing to merit it (see Buchanan, 13 NY3d at 3), but the Court of Appeals did not find the error to be a mode of proceedings error.  Instead, the Court of Appeals simply ruled that the court failed to exercise its discretion… .  People v Schrock, 800, 4th Dept 7-19-13

 

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Improper Admission of Evidence of Similar (Pending) Criminal Charge under Molineux Required Reversal

The Fourth Department determined a new trial was required where the trial court allowed the prosecution to present evidence (in its direct case) of a pending attempted robbery charge under Molineux to prove identity.  The defendant was on trial for allegedly robbing a hotel clerk in Cayuga County and the Molineux evidence involved the attempted robbery of a hotel clerk in Onondaga County.  The Molineux evidence included the testimony of five witnesses and a video of the attempted robbery.  The Fourth Department wrote:

“Before admitting evidence of other crimes to establish identity, the Trial Judge must find that both modus operandi and defendant’s identity as the perpetrator of the other crimes are established by clear and convincing evidence” (Prince, Richardson on Evidence § 4–514 [Farrell 11th ed]…).  Here, the record establishes that the court ruled that the evidence of defendant’s identity with respect to the attempted robbery would be admissible as a matter of law, but did not determine the relevancy of the identification evidence of the attempted robbery, nor did it properly balance its prejudicial effect as against its probative value… .  Additionally, there is no indication in the record that the court found that the modus operandi and defendant’s identity as the perpetrator of the attempted robbery were established by clear and convincing evidence.  We thus conclude that the case before the jury became a prohibited “trial within a trial”… .  We further conclude that the evidence of the attempted robbery was “sufficiently prejudicial so as to deprive defendant of a fair trial”… .  People v Larkins, 756, 4th Dept 7-19-13

 

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In SORA Proceeding, Child Pornography Properly Considered Under Factor 7 (“Relationship Between Offender and Victim”)

In affirming a SORA determination, the Fourth Department noted that the 20 point assessment under risk factor 7 (entitled “Relationship Between Offender and Victim”), based upon the defendant’s pleading guilty to receiving child pornography (a federal statute), was appropriate:

With respect to …the 20 points assessed under risk factor 7, we note that the underlying conviction was a federal offense to which defendant pleaded guilty to receiving child pornography (18 USC 2252 [a] [2]).  Although the Court of Appeals has stated that “[i]t does not seem that factor 7 was written with possessors of child pornography in mind” …, the Court of Appeals determined that points were properly assessed under risk factor 7 in a case where the defendant was convicted of possessing child pornography….  Consequently, we conclude that the court here properly assessed points under risk factor 7. People v Noyes, 687, 4th Dept 7-19-13

 

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Judge’s Refusal to Allow Defendant to Call Inmate Witness Required Reversal

The Fourth Department reversed defendant’s conviction because the trial court refused defendant’s request to present an inmate witness who might have supported defendant’s version of events:

CPL 630.10 provides for the attendance of an inmate witness in a criminal action or proceeding upon a demonstration of “reasonable cause to believe that such person possesses information material” to such proceeding.  Here, defendant made the requisite showing under that statute, and the court abused its discretion in refusing to order the production of the subject inmate witness whose testimony defendant sought to present at trial… .  There is no dispute that the proposed inmate witness spoke to the driver of the vehicle in which defendant was a passenger just before defendant’s arrest.  The proposed witness was at a distance of between 20 feet and 20 yards from the vehicle at the time of defendant’s arrest.  Moreover, we note that there was no fingerprint evidence in this case, which involved a top count of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]), and the issue of defendant’s guilt turned largely on the testimony of two police detectives.  We cannot countenance the court’s refusal to allow defendant to present the testimony of a witness who might have supported defendant’s version of events.  People v Baxter, 599, 4th Dept 7-19-13

 

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Repugnant Verdict Required Reversal

The Fourth Department, over a dissent, reversed defendant’s conviction of manslaughter in the first degree as a hate crime as inconsistent with defendant’s acquittal of manslaughter in the first degree (without the hate crime element).  The Fourth Department wrote:

“A verdict is inconsistent or repugnant . . . where the defendant is convicted of an offense containing an essential element that the jury has found the defendant did not commit” … .  “A verdict shall be set aside as repugnant only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury” …, “without regard to the accuracy of those instructions” … .  “The underlying purpose of this rule is to ensure that an individual is not convicted of ‘a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all’ ” ….

By acquitting defendant of manslaughter in the first degree, the jury necessarily found that the People failed to prove beyond a reasonable doubt at least one element of manslaughter in the first degree.  To find defendant guilty of manslaughter in the first degree as a hate crime, however, the jury must have found that the People proved beyond a reasonable doubt all of the elements of manslaughter in the first degree, plus the added element that defendant selected the victim due to his sexual orientation.  It therefore follows that the verdict is inconsistent.  People v DeLee, 419, 4th Dept 7-19-13

 

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Judges Not Obligated to Adhere to Pay-Voucher Recommendations Made by Assigned Counsel Program

The Fourth Department dismissed an Article 78 petition brought by the Onondaga County Bar Association Assigned Counsel Program (ACP) which sought to vacate the respondents-judges’ approval of pay vouchers submitted by respondent-attorney.  The Fourth Department wrote:

…[T]his proceeding challenges the authority of respondents to approve vouchers that do not comply with the ACP Plan; it does not challenge the amount of the compensation awarded, a matter reviewable only before an administrative judge ….  We reject petitioners’ contention that respondents have a mandatory duty to follow the ACP Plan and that their failure to refuse to pay vouchers not in compliance with the Plan is arbitrary and capricious.  Although ACP personnel may make recommendations to the trial court with respect to the payment of vouchers, the trial courts are not obligated to adhere to those recommendations.  “The ACP Plan does not take away from the courts the ultimate authority to determine assigned counsel’s compensation; it merely provides for a preliminary review and recommendation, which individual trial judges are free to accept or reject”… .  Matter of County of Onondaga and Onondaga County Bar Association Assigned Counsel Program, Inc., 57, 4th Dept 7-19-13

 

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Five-Year Look-Back Applied/Pension Properly Included in Determining Applicant’s Income In Spite of Unexplained Cessation of Payments

The Fourth Department confirmed the Department of Social Service’s determination that transfers of property within the five-year look-back period were properly taken into account in imposing a penalty period before the applicant, who was in a nursing home, was eligible to for Medicaid. The court agreed that a gift made during the look-back period was at least partially motivated by qualifying for Medicaid and the applicant’s pension payments, which stopped at some point for unknown reasons, were properly considered in determining the applicant’s income (noting that the department was not obligated to determine why the payments, which presumably were for life, stopped).  In explaining the relevant law, the court wrote:

“In determining the medical assistance eligibility of an institutionalized individual, any transfer of an asset by the individual . . . for less than fair market value made within or after the look-back period shall render the individual ineligible for nursing facility services” for a certain penalty period (Social Services Law § 366 [5] [d] [3]).  The look-back period is the “sixty month period[] immediately preceding the date that an [applicant] is both institutionalized and has applied for medical assistance” (§ 366 [5] [d] [1] [vi]).  Where an applicant has transferred assets for less than fair market value, the burden of proof is on the applicant to “rebut the presumption that the transfer of funds was motivated, in part if not in whole, by . . . anticipation of future need to qualify for medical assistance” (…see generally § 366; 18 NYCRR 360-4.4).  Matter of Donvito… v Shah…, 663, 4th Dept 7-19-13

 

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