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DEFENDANT’S DENIAL OF GUILT MADE WHEN HIS APPEAL WAS PENDING CANNOT BE USED AS THE BASIS FOR THE ASSESSMENT OF POINTS IN A SORA RISK-LEVEL PROCEEDING FOR “FAILURE TO ACCEPT RESPONSIBILITY” (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court in this SORA risk-assessment proceeding, determined defendant should not have been assessed 10 points for failure to accept responsibility because his denial of guilt was made when his appeal was pending:

… [T]he court should not have assessed 10 points under risk factor 12 for failure to accept responsibility. Defendant’s denials of guilt were made at the time his appeal from his underlying conviction was pending. “Requiring defendant to accept responsibility could potentially result in his admissions being used against him in any retrial, violating his Fifth Amendment right against self-incrimination” … . People v Wallace, 2024 NY Slip Op 05189, First Dept 10-22-24

Practice Point: A denial of guilt made when defendant’s appeal was pending and there was a chance for a retrial cannot be used against him in a SORA risk-level assessment.

 

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IN THIS “ATTEMPTED CRIMINAL POSSESSION OF A WEAPON” AND “FALSIYFING BUSINESS RECORDS” PROSECUTION, THE PEOPLE DID NOT PROVE DEFENDANT WAS SUBJECT TO A RESTRAINING ORDER ISSUED AFTER A HEARING OF WHICH HE HAD NOTICE AND IN WHICH HE COULD HAVE PARTICIPATED; THEREFORE THE PEOPLE DID NOT PROVE HIS ANSWERING “NO” TO THE QUESTION WHETHER HE WAS SUBJECT TO A RESTRAINING ORDER WAS FALSE; CONVICTIONS REVERSED (THIRD DEPT). ​

The Third Department reversed defendant’s “attempted criminal possession of a weapon” and “falsifying business records” convictions as against the weight of the evidence. Defendant, when attempting to purchase a shotgun, answered “no” to the question whether he was subject to a court order. Although restraining orders were produced by the People, there was no proof any restraining order “was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate” as required by 18 USC 922 (g) (8) (an element of the charged offenses):

… [T]he People failed to prove beyond a reasonable doubt that defendant attempted to buy a shotgun knowing his possession of same was “prohibited by law” (Penal Law § 265.17 [1]). People v Rock, 2024 NY Slip Op 05162, Third Dept 10-17-24

 

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FAMILY COURT’S RULING THAT A MASSACHUSETTS COURT WAS THE MORE CONVENIENT FORUM FOR THIS CUSTODY MATTER WAS NOT SUPPORTED BY EXPLICIT REFERENCE TO THE STATUTORY FACTORS OR ANY TESTIMONY OR SUBMISSIONS BY THE PARTIES; THE RECORD WAS THEREFORE INSUFFICIENT FOR APPELLATE REVIEW AND THE MATTER WAS REMITTED (THIRD DEPT).

The Third Department, reversing Family Court’s ruling that a Massachusetts court was the most convenient forum for this custody matter, determined Family Court’s failure to place on the record the factors it considered in making its ruling, combined with absence of any testimony, rendered the record inadequate for review, requiring remittal:

“Where, as here, a New York court has continuing jurisdiction over a custody matter, it may decline to exercise such jurisdiction if it determines that New York is an inconvenient forum and that another state is a more appropriate forum” … . A court is obliged to consider eight statutory factors in rendering that determination, and “[t]hose statutory factors include (1) ‘whether domestic violence or mistreatment or abuse of a child or sibling has occurred and is likely to continue in the future and which state could best protect the parties and the child,’ (2) the length of time the children have resided in another state, (3) the distance between the two states in question, (4) the relative financial circumstances of the parties, (5) any agreement among the parties regarding jurisdiction, (6) the nature and location of relevant evidence, including testimony from the children, (7) the ability of each state to decide the issue expeditiously and the procedures necessary to present the relevant evidence, and (8) the familiarity of each court with the relevant facts and issues” (… Domestic Relations Law § 76-f [2] [a]). Notably, the “determination depends on the specific issues to be decided in the pending litigation, and must involve consideration of all relevant factors, including those set forth in the statute” … .

… Family Court did not explicitly refer to the statutory factors during its conference with the Massachusetts court, which was essentially a back-and-forth between the judges on issues that included the language of the prior custody orders, the nature of the cases presently before them and the differences between New York and Massachusetts laws governing custody proceedings. The parties were not invited to, and did not, offer any testimony regarding the relative convenience of the two forums. Matter of Mark AA. v Susan BB., 2024 NY Slip Op 05173, Third Dept 10-17-24

Practice Point: Here Family Court did not make an adequate record to support its ruling that a Massachusetts court was the more convenient forum for this custody matter. There were no submissions by the parties and there was no testimony. The statutory factors were not explicitly referenced. The matter was remitted.

 

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THE APPELLATE COURTS HAVE THE “INTEREST OF JUSTICE” POWER TO REDUCE AN OTHERWISE LEGAL AND APPROPRIATE SENTENCE WHEN THE DEFENDANT IS SERIOUSLY MENTALLY ILL; HERE THE MAJORITY CHOSE NOT TO REDUCE THE SENTENCE; A STRONG TWO-JUSTICE DISSENT ARGUED FOR A REDUCTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Shulman, over an extensive two-justice dissent, affirmed defendant’s conviction by guilty plea to attempted murder and declined to reduce the eight-year sentence in the interest of justice. Defendant is seriously mentally ill and has endured almost indescribable hardships throughout his life, which are detailed in the dissent. The underlying question here is, given the prison system’s inability to properly care for the seriously mentally ill, should the appellate court exercise its power to reduce this defendant’s sentence in the interest of justice. The majority answered “no” and the dissent argued “yes.” The opinion is far too detailed to fairly summarize here:

From the dissent:

… [R]esearch … demonstrates that people with serious psychiatric needs are more likely to be violently victimized and housed in segregation while in prison. That research also shows that the vast majority of people with mental illness in jails and prisons do not receive care, and for those that do, the care is generally inadequate.… This is of particular concern given [defendant’s] history of suicide attempts … .

This case raises an important question: What is the utility of extended incarceration under the present circumstances? Specifically, where, among other things, the offense occurred during a time when [defendant] had been unmedicated for five days and, moreover, the record suggests—as evidenced by [defendant’s] comments to the police when arrested and a subsequent mental examination—that his severe mental illness contributed to what is his first and only criminal conviction. People v Paulino, 2024 NY Slip Op 04625, First Dept 9-26-24

Practice Point: The appellate courts have the “interest of justice” power to reduce an otherwise appropriate sentence based upon a defendant’s mental illness.

 

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DEFENDANT’S BEHAVIOR BEFORE AND DURING THE TRAFFIC STOP DID NOT CREATE “REASONABLE SUSPICION” THE DEFENDANT WAS ARMED; THE FRISK AND SEIZURE OF SMALL PACKETS OF PCP FROM DEFENDANT’S SOCK WAS NOT JUSTIFIED; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Rodriguez, over a concurrence, reversing Supreme Court, determined the police, during a traffic stop, did not have “reasonable suspicion the suspect was armed” at the time defendant was frisked and small packets of PCP were seized from his sock, requiring suppression of the drugs. The concurrence argued that the evidence the officers smelled PCP provided “reasonable suspicion” sufficient to warrant a search, but, because Supreme Court did not credit that testimony, the appellate court could not consider it (the lower court’s ruling on that issue was not adverse to the defendant). The facts surrounding the traffic stop and frisk are too detailed to fully summarize here:

The issue presented is … “whether the circumstances in this case support a reasonable suspicion that defendant was armed and dangerous” … , thereby justifying the level three frisk. More precisely, the issue is whether Mr. Torres’s failure to produce his license and registration; his presentation as “nervous” and “fidgety”; the dark lighting under the Manhattan Bridge; the smell of PCP; and Officer McDevit’s observation that the van was shaking as he approached supports, in the totality, “a reasonable view that [defendant] was armed” … .

Ultimately, the circumstances here supported, at most, a level two intrusion to gain explanatory information but not an escalation to level three. Critically, Officer Galarza testified that when he asked Mr. Torres for his license and registration, Mr. Torres was “not able to produce [them].” It was “[a]t this point” that Officer Galarza had Mr. Torres “step out of the vehicle [] for [Officer Galarza’s] safety after [Officer Galarza] felt like [Mr. Torres] wasn’t compliant enough” with the request. * * *

… [A]lthough Mr. Torres’s failure to respond to Officer Galarza’s request for his license and registration “clearly served to heightened the suspicions of the officer” … and “represented a basis for further inquiry,” “it did not provide a predicate for reasonable suspicion to believe that [defendant] . . . [was] armed, thereby justifying a frisk” … . People v Torres, 2024 NY Slip Op 04442, First Dept 9-12-24

Practice Point: Here the defendant’s behavior before and during the traffic stop did not raise “reasonable suspicion” that he was armed. Therefore the frisk and seizure of drugs from his sock was not justified.

Practice Point: The concurrence argued the evidence that the officers smelled drugs (PCP) warranted a search. However, because the suppression court did not credit that evidence, the appellate court could not consider it.

 

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STATE DESIGN DEFECT AND FAILURE TO WARN ACTION IS PREEMPTED BY THE FEDERAL HAZARDOUS MATERIALS TRANSPORTATION ACT (HMTA), CRITERIA EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Rodriguez, determined the state defective-design and failure-to-warn action stemming from an allegedly defective compressed gas cylinder was preempted by the federal Hazardous Materials Transportation Act (HMTA). …”…  [T]he HMTA’s express preemption provision encompasses state law claims ‘about’ ‘the designing, manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing [of] a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce’ … “:

… Federal preemption is based on the US Constitution’s Supremacy Clause …  …

The issue of federal preemption is a question of law …, since it concerns whether, as a matter of statutory interpretation … , Congress has enacted a law for which a particular state rule is “to the Contrary”  … .

An “inquiry into the scope of a statute’s pre-emptive effect is guided by the rule that ‘the purpose of Congress is the ultimate touchstone’ in every pre-emption case” … .. “If a federal law contains an express pre-emption clause,” as here, “it does not immediately end the inquiry because the question of the substance and scope of Congress’ displacement of state law still remains” …

Whether dealing with “express or implied pre-emption, we begin our analysis ‘with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress'” … . “That assumption applies with particular force when Congress has legislated in a field traditionally occupied by the States” … . “Thus, when the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily ‘accept the reading that disfavors pre-emption'” … .

Notwithstanding the above, “[i]f the statute contains an express pre-emption clause, the task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent” … .

Accordingly, although courts will not hesitate to hold that state common-law claims are preempted by federal legislation, the analysis in each express preemption case must turn on the precise language of the relevant preemption provision … .

… [T]he defense of preemption may be raised at any time  … .Malerba v New York City Tr. Auth., 2024 NY Slip Op 04344, First Dept 8-29-24

Practice Point: Consult this opinion for the analysis of and criteria for preemption of a state action by a federal statute.

 

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PRIMARILY BECAUSE OF CREDIBILITY ISSUES CONCERNING THE IDENTIFICATION OF THE DEFENDANT, THE SECOND DEPARTMENT REVERSED THE ROBBERY CONVICTION AS AGAINST THE WEIGHT OF THE EVIDENCE; THERE WAS A DISSENT (SECOND DEPT).

The Second Department, over a dissent, determined the defendant’s robbery conviction, which was based primarily on the complainant’s identification evidence, was against the weight of the evidence:

Here, an acquittal would not have been unreasonable since the defendant did not possess the complainant’s wallet, no physical evidence tied him to the scene of the theft or to the Lincoln in which the complainant had been abducted, and the clothing that the defendant was wearing did not match the description of the perpetrator’s clothing. Moreover, upon the exercise of our factual review power (see CPL 470.15[5]), we find that the rational inferences that can be drawn from the trial evidence do not support the convictions beyond a reasonable doubt. Initially, while the People speculate that the defendant could have put on the sweater at some time after he stole the complainant’s wallet, by the complainant’s version of events, the defendant was either engaged in a struggle with the complainant or under the constant watch of the complainant and his friend from the moment of the theft. Furthermore, the taxicab driver candidly admitted that he lost sight of the Lincoln and never saw it again, which cannot be reconciled with the complainant’s testimony that the two vehicles were “bumper to bumper” the entire time the taxicab followed the Lincoln.

The testimony of the complainant and his friend that they saw the defendant exiting the Lincoln cannot be credited.

The testimony of the complainant and his friend suffered other credibility issues. People v Delvalle, 2024 NY Slip Op 03896, Second Dept 7-24-24

Practice Point: Credibility issues can support the reversal of a conviction as against the weight of the evidence.

 

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IT WAS REVERSIBLE ERROR TO EMPANEL AN ANONYMOUS JURY; ALTHOUGH THE ERROR WAS NOT PRESERVED, NEW TRIAL GRANTED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing defendant’s assault-related convictions and ordering a new trial, determined it was error to empanel an anonymous jury:

… [C]onsistent with our recent holding in People v Heidrich (226 AD3d 1096 [3d Dept 2024]), we find merit to defendant’s contention that County Court’s empaneling of an anonymous jury in his case was in error. We again note that the practice of empaneling an anonymous jury contains no statutory justification, as CPL 270.15 (1-a) merely permits the withholding of residential or business addresses of prospective jurors upon a showing of good cause … . While the Court of Appeals has not explicitly sanctioned the practice, it has suggested that, at the very least, “doing so is error where no ‘factual predicate for the extraordinary procedure’ has been shown” … . To that end, the People concede, and we agree, that the record contains no factual support for utilizing an anonymous jury in this case. Instead, the People focus their arguments on defendant’s failure to preserve the issue by consenting to the practice, alongside the contention that the error was, in any event, harmless. On the latter point, we need only note that we recently rejected the applicability of a harmless error analysis to this manner of error … . As to preservation, although defendant concedes his failure to object during pretrial proceedings, he asks that we take corrective action in the interest of justice (see CPL 470.15 [6] [a] …) Considering the totality of circumstances, including the potential effect on the fairness of trial that flows from the decision to utilize an anonymous jury without any justification … , we find such action is appropriate. We therefore exercise our interest of justice jurisdiction and grant defendant a new trial. People v Tenace, 2024 NY Slip Op 03784, Third Dept 7-11-24

Practice Point: Absent factual support for the procedure in the record, it is reversible error to empanel an anonymous jury.​

 

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HERE THE APPELLATE DIVISION, IN THE INTEREST OF JUSTICE, ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER (FOURTH DEPT).

The Fourth Department, reversing County Court, over a two-justice dissent, determined defendant should have been sentenced as a youthful offender for his role in a robbery::

… [T]he factors weighing against affording defendant youthful offender treatment are the seriousness of the offense, defendant’s alleged gang affiliation, and defendant’s failure to complete interim probation … . However, defendant was 15 years old at the time of the crime and had no prior criminal record. He accepted responsibility for his actions and cooperated with both police on the date of the incident and probation during his presentence report interview. According to his probation officer, although he had not yet begun substance abuse treatment in the extremely short period of time between his release from custody and his remand, he “report[ed] as directed, and ha[d] not secured any new charges.” Probation described defendant as “[m]otivated to avoid further difficulties” and his prognosis for lawful behavior as “guarded.” Indeed, probation asked that defendant’s “sentencing be adjourned for sixty days to allow . . . defendant the opportunity to be placed on electronic monitoring through Probation.” In addition, despite the senseless nature of this incident, defendant did not use a weapon, there is no allegation that this crime was gang-related, defendant was the youngest participant in the crime by approximately three years, and it was clearly an unplanned, spur-of-the-moment decision for which youthful offender adjudication is meant … . People v Davonte S.B., 2024 NY Slip Op 03635, Fourth Dept 7-3-24

Practice Point: The Appellate Division has the power to review the record and adjudicate a defendant a youthful offender in the interest of justice.

 

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ALTHOUGH THE VICTIM, AFTER IDENTIFYING DEFENDANT IN A PHOTO ARRAY, ASKED TO SEE A SECOND PHOTO ARRAY, HER IDENTIFICATION OF THE DEFENDANT WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE; THERE WAS A STRONG DISSENT (FOURTH DEPT). ​

The Fourth Department, affirming defendant’s conviction, in a full-fledged opinion by Justice Greenwood, over a strong dissent, determined the one-witness identification of the defendant was not against the weight of the evidence. After identifying the defendant in a photo array the victim asked to see another photo array. In the second array she again picked out the defendant, but apparently she didn’t think she was identifying the same person. But she had in fact identified the same person from an older photograph:

In determining whether a verdict is against the weight of the evidence, we must first determine whether, “based on all the credible evidence[,] a different finding would not have been unreasonable” … . If so, “then [we] must, like the trier of fact below, ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” … . Weight of the evidence review is not an “open invitation” for an appellate court to substitute its judgment for that of the jury … . Rather, in reviewing the evidence, we “must give ‘[g]reat deference’ to the jury’s verdict . . . precisely because ‘[t]he memory, motive, mental capacity, accuracy of observation and statement, truthfulness and other tests of the reliability of witnesses can be passed upon with greater safety by those who see and hear than by those who simply read the printed narrative’ ” … . Stated another way, it is the “fact-finder[ ]” that has the “opportunity to view the witnesses, hear the testimony and observe demeanor” … , and “those who see and hear the witnesses can assess their credibility and reliability in a manner that is far superior to that of reviewing judges who must rely on the printed record” … .

Contrary to the conclusion of the dissent, the facts of this case do not warrant the substitution of our credibility determinations for those made by the jury …  We conclude that the second victim’s identification of defendant was not “incredible and unbelievable, that is, impossible of belief because it [was] manifestly untrue, physically impossible, contrary to experience, or self-contradictory” … . The issues of her identification of defendant and her credibility “were properly considered by the jury and there is no basis for disturbing its determinations” … . We note that the second victim “never wavered in her testimony regarding the events or her identification of defendant” … .People v Clark, 2024 NY Slip Op 03586, Fourth Dept 7-3-24

Practice Point: The criteria for a “weight of the evidence” appellate review is clearly illustrated here.

 

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