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WHEN A DEFENDANT MUST BE RELEASED BECAUSE HE OR SHE IS NOT CHARGED WITH A BAIL-ELIGIBLE OFFENSE, A COMPETENCY EXAMINATION MUST BE CONDUCTED AS AN OUT-PATIENT OR IN A HOSPITAL; THE DEFENDANT CANNOT BE ORDERED TO JAIL PENDING THE EXAMINATION; THE HABEAS CORPUS PETITION WAS PROPERLY GRANTED; THE APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined defendant, who was not charged with a bail-eligible offense, could not be ordered to jail for a competency examination. Defendant must either be examined as an out-patient, or, upon a recommendation of a medical official, in a hospital. The writ of habeas corpus was properly granted and the appeal was heard as an exception to the mootness doctrine:

… [W]e conclude that Wei Li [defendant] was not “in custody” during his arraignment … because he was not charged with a qualifying offense under the bail laws and the court was required to order his release at arraignment (see CPL 510.10 [3]; 530.20 [1] [a]). As its plain text makes clear, subdivision (3) mandates the location for the examination as either (1) the place where the defendant is in custody at the time the court orders the examination, or (2) at a hospital facility, as might be necessary for an effective examination. The statute’s use of the phrase “in custody,” like the phrase “hospital confinement,” refers, as a practical matter, to where a defendant may be properly examined by psychiatric personnel. Thus, “in custody,” as used in subdivision (3), does not broadly refer to custodial control over a defendant at a courthouse. …

A court issuing an order for a competency examination [pursuant to CPL 730.20] (1) may direct an examination on an outpatient basis or, (2) upon a medical recommendation of the director, the court may, but need not, order hospital confinement until completion of the examination. People v Warden, Rikers Is., 2022 NY Slip Op 07093, CtApp 12-15-22

Practice Point: A defendant who is not charged with a bail-eligible offense cannot be ordered to jail pending a competency examination. The defendant must be examined as an out-patient or, upon the recommendation of a medical official, in a hospital.

 

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THE MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED; THE MOTION TO SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED; A NEW TRIAL IS NECESSARY BECAUSE AN APPELLATE COURT CANNOT MAKE NEW FINDINGS OF FACT IN A JURY TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court in this medical malpractice case. determined the motion to set aside the verdict as a matter of law should not have been granted. but the motion to set aside the verdict as against the weight of the evidence should have been granted, explaining the difference:

“‘A motion for judgment as a matter of law pursuant to CPLR 4404(a) may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party'” … . “In considering such a motion, the facts must be considered in a light most favorable to the nonmovant” … . …

… “[A] motion to set aside a jury verdict as contrary to the weight of the evidence should be granted ‘[o]nly where the evidence so preponderates in favor of the unsuccessful litigant that the verdict could not have been reached on any fair interpretation of the evidence'” … . … “‘Whether a particular factual determination is against the weight of the evidence is itself a factual question. In reviewing a judgment of the Supreme Court, the Appellate Division has the power to determine whether a particular factual question was correctly resolved by the trier of facts. If the original fact determination was made by a jury, as in this case, and the Appellate Division concludes that the jury has made erroneous factual findings, the court is required to order a new trial, since it does not have the power to make new findings of fact in a jury case'” … . * * *

As to the weight of the evidence, based on the record, we find that the verdict in favor of the plaintiffs could not have been reached on any fair interpretation of the evidence, and must be set aside (see CPLR 4404[a] …). Accordingly, we reverse the judgment, reinstate the complaint, grant that branch of the defendants’ motion which was pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence and for a new trial, and remit the matter to the Supreme Court, Queens County, for a new trial…. . Osorio v New York City Health & Hosps. Corp., 2022 NY Slip Op 07072, Second Dept 12-14-22

Practice Point: When an appellate court determines the verdict should be set aside as against the weight of the evidence in a jury trial it must order a new trial because an appellate court does not have the authority to make new findings of fact in a jury trial.

 

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UPON REMITTAL AFTER THE INITIAL PERSISTENT FELONY OFFENSE SENTENCE WAS OVERTURNED, THE SENTENCING COURT PROPERLY RELIED ON ADDITIONAL INFORMATION TO AGAIN SENTENCE DEFENDANT AS A PERSISTENT FELONY OFFENDER (CT APP).

The Court of Appeal, reversing the Appellate Division, over an extensive dissent, determined the sentencing court, upon remittal after the initial persistent violent felony offender sentence was overturned on appeal, properly relied on additional information to again sentence defendant as a persistent violent felony offender:

Upon the appeal from defendant’s judgment of conviction and original sentence as a persistent violent felony offender in 2013, the People conceded that defendant’s prior incarceration dates did not provide sufficient tolling to qualify his 1987 conviction as a requisite predicate offense … . …

On remittal, Supreme Court resentenced defendant as a persistent violent felony offender, relying on supplemental evidence of defendant’s prior incarceration brought to the court’s attention in connection with collateral motion practice. Defendant appealed, and the Appellate Division, with one Justice dissenting, vacated defendant’s resentence and remitted for a second time. …

At the time of resentencing, Supreme Court was on notice of the supplemental evidence of defendant’s prior incarceration, which conclusively demonstrates that defendant is, in fact, a persistent violent felony offender. … [T]he Appellate Division did not limit its remittal …. … Supreme Court was not precluded from imposing the statutorily required sentence based on the evidence before it, particularly given that court’s “inherent authority to correct illegal sentences” … . People v Kaval, 2022 NY Slip Op 07022, CtApp 12-13-22

Practice Point: Here the appellate division overturned defendant’s sentence as a persistent felony offender because sufficient tolling of the ten-year lookback due to defendant’s incarceration was not demonstrated. The appellate division did not limit its remittal. Therefore, on remittal the sentencing court properly relied upon additional information about defendant’s incarceration which tolled the ten-year lookback and sentenced defendant again as a persistent felony offender.

 

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BEFORE SENTENCING DEFENDANT AS A SECOND VIOLENT FELONY OFFENDER, THE COURT DID NOT MAKE A FINDING WHETHER THE TEN-YEAR LOOK-BACK FOR ANY PREDICATE VIOLENT FELONY WAS TOLLED BY A PERIOD OF INCARCERATION; THE ISSUE SURVIVES A WAIVER OF APPEAL AND WAS PROPERLY RAISED FOR THE FIRST TIME ON APPEAL; MATTER REMITTED FOR RESENTENCING (THIRD DEPT). ​

The Third Department, remitting the matter for resentencing, determined the court did not make a finding about whether the 10-year look-back for a predicate violent felony was tolled by periods of incarceration. The issue survives a waiver of appeal and, because the issue is clear from the record, was properly raised for the first time on appeal:

To qualify as a predicate violent felony, the sentence for the prior violent felony “must have been imposed not more than [10] years before commission of the felony of which the defendant presently stands convicted” (Penal Law § 70.04 [1] [b] [iv]). “In calculating this 10-year look-back period, ‘any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such 10-year period shall be extended by a period or periods equal to the time served under such incarceration'” … .

The instant offense occurred on March 3, 2018. Prior to sentencing, the People filed a predicate statement indicating that defendant had previously been convicted of a violent felony in 2004 … . The People also submitted a presentence report which demonstrated that defendant was convicted of additional felonies in 2010 and 2014, but — as the People concede — neither the predicate statement nor the presentence report established the time periods during which defendant was incarcerated during the time between the two violent felonies in order to toll the 10-year look-back period … . People v Faulkner, 2022 NY Slip Op 06957, Third Dept 12-8-22

Practice Point: Before sentencing defendant as a second violent felony offender, the sentencing court did not make a finding whether the ten-year look-back for a predicate violent felony was tolled by a period of incarceration. The issue survives a waiver of appeal and was properly raised for the first time on appeal. The matter was remitted for resentencing.

 

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RESPONDENT STATE COLLEGE WITHHELD EXCULPATORY EVIDENCE IN THIS COLLEGE MISCONDUCT PROCEEDING WHICH RESULTED IN PETITIONER-STUDENT’S EXPULSION; THE EXPULSION PENALTY WAS VACATED AND THE STUDENT WAS REINSTATED IN GOOD STANDING (FIRST DEPT). ​

The First Department, reversing the expulsion of petitioner-student and reinstating the student in good standing, determined the respondent state college had withheld exculpatory evidence which indicated petitioner did not carve a racial epithet on an elevator door. Two students claimed to have seen petitioner carve the epithet. Another student sent an email stating he had seen the epithet on the door before the students arrived for the semester. That email was never disclosed to the petitioner:

Article III of Section 4 of respondent’s Code of Conduct enumerates the due process rights of students charged with violations. In addition to the right to a fair hearing, a charged student “has the right to copies of written reports pertinent to the case . . .” Respondent’s failure to turn over exculpatory evidence in its possession prior to the hearing violated its own policies and procedures, thereby violating petitioner’s due process rights … . Now, in hindsight, it cannot be said that petitioner received a fair hearing where evidence tending to prove his innocence was withheld.

Accordingly, after our independent review of the record as a whole, we now find that this exculpatory evidence, the extensive alibi evidence as well as other objective evidence of petitioner’s innocence render the charges unsupportable as a matter of law thus warranting vacatur of the expulsion penalty, expungement of all references to the underlying charges contained in petitioner’s academic record and his reinstatement as a student in good standing … . Matter of Mozdziak v State Univ. of N.Y. Mar. Coll., 2022 NY Slip Op 06759, First Dept 11-29-22

Practice Point: In this misconduct proceeding in a state college, the student was entitled to due process. The college’s failure to turn over exculpatory evidence required vacation of the expulsion penalty and reinstatement of the student in good standing.

 

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THE JUDGE, PROSECUTOR AND DEFENSE COUNSEL AGREED DEFENDANT SHOULD STEP OUT OF THE COURTROOM WHEN HIS JUSTIFICATION DEFENSE WAS DISCUSSED IN A SIDEBAR CONFERENCE; DEFENSE COUNSEL’S AGREEMENT TO HAVE DEFENDANT STEP OUT OF THE COURTROOM WAS NOT A WAIVER OF DEFENDANT’S RIGHT TO BE PRESENT; CONVICTION REVERSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, determined defendant should have been present for the sidebar conference about the justification defense in this attempted murder by stabbing case. Defendant claimed he had a heart condition triggered by stress which causes his heart to race until he passes out. Defense counsel argued the condition was relevant to the justification defense because defendant felt he had to stab the victim before he passed out to protect himself. Before the issue was discussed the judge, prosecutor and defense counsel agreed the defendant should step out of the courtroom. The judge ruled the evidence of the heart condition could not come in unless the defendant’s testimony established a connection between the condition and the interaction with the victim:

… [T]he subject of the instant sidebar conference clearly implicated defendant’s peculiar factual knowledge such that his participation might have assisted him in advancing his justification defense to the murder and assault counts. The subject of the conference was whether defendant would be permitted to testify as to a medical (heart) condition with regard to his justification defense. During the sidebar conference the court repeatedly implored defense counsel to explain how defendant’s serious medical condition impacted his assessment of his physical safety. Defendant’s presence at the sidebar conference would have afforded him an opportunity to apprise the court, defense counsel and prosecutor of the exact details of his heart condition in order to demonstrate that it affected his assessment of the circumstances he was confronted with prior to the stabbing incident … . * * *

Although the right to be present at a sidebar conference need not be preserved by an objection … , the right may be waived. Such right may be waived either explicitly or implicitly by defendant … . …

… [D]efendant did not waive the right to be present at the sidebar conference. Contrary to the People’s assertion, defendant did not personally waive his right to be present either explicitly or implicitly. At no time did defendant make an affirmative statement on the record that he did not wish to attend the side bar conference. And no one ever asked him directly. … [H]e was commanded to leave the courtroom so that the sidebar conference could take place in his absence. … [A]t no time was defendant made aware that he had the right to be present at the sidebar conference … . …

… [I]n the absence of any record discussion by the court with counsel and the prosecutor regarding defendant’s right to be present at the sidebar conference, defense counsel’s expression of lack of objection to his client absence from the sidebar conference is not an affirmative statement by counsel confirming that defendant himself was waiving his right to be present at the sidebar conference … . People v Girard, 2022 NY Slip Op 06645, First Dept 11-22-22

Practice Point: Defense counsel agreed to have the defendant step out of the courtroom when the justification defense was discussed in a sidebar conference. Defense counsel’s agreement did not constitute a waiver of defendant’s right to be present. The conviction was reversed.

 

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DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO FILE A SUPPRESSION MOTION; THE FAILURE “INFECTED” THE GUILTY PLEA BECAUSE SUPPRESSION COULD HAVE LED TO DISMISSAL OF SOME OF THE INDICTMENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defense counsel’s failure to make a suppression motion constituted ineffective assistance:

… [W]e conclude that the record establishes that defense counsel could have presented a colorable argument that defendant’s detention was illegal and thus that any evidence obtained as a result thereof should have been suppressed as the fruit of the poisonous tree. One of the officers who initially detained defendant testified at a Huntley/Wade hearing that, prior to defendant’s arrest, one of the victims of a home invasion had described the suspects as two black men in their twenties, one of whom was wearing a hoodie “with some kind of emblem on the front.” About a half-hour later, the officer heard a broadcast of a tip from an unidentified retired police officer. The tip, as testified to at the hearing, reported “two [black] males [in their twenties] inside [a] corner store that possibly looked suspicious” with one that “might” have had “a handgun on his side” and another that was wearing a “teddy bear type hoodie,” which was later described as a hoodie with a teddy bear on the front. Based on that tip, officers responded to the corner store, entered with weapons drawn, and immediately ordered the two men, one of whom was defendant, to raise their hands. The officer testified, however, that the men were not acting suspiciously nor did she observe a weapon when she and her partner entered the store. While handcuffing defendant, the officer for the first time observed a handgun in defendant’s waistband, saw blood on defendant’s hoodie, and obtained statements from defendant. Defendant was thereafter taken for show-up identifications, during which the victims of the prior home invasion identified him as one of the men involved in that incident.

… [I]t cannot be said that a motion seeking suppression on the ground that defendant was unlawfully detained would have had “little or no chance of success” … , and instead those facts demonstrate that defense counsel failed to pursue a “colorable claim[]” that could have led to suppression … . …

… [D]efense counsel prepared such a motion to suppress evidence on that basis, indicated an intent to make that motion, and simply failed to file the motion despite having been twice informed by the court of the need to do so given the People’s refusal to consent to a hearing regarding the legality of the detention without such a motion. …

… [D]efendant’s contention survives his guilty plea inasmuch as the error in failing to seek suppression on that basis infected the plea bargaining process because suppression of the challenged evidence would have resulted in dismissal of at least some of the indictment … . People v Roots, 2022 NY Slip Op 06617, Fourth Dept 11-18-22

Practice Point: Defense counsel was deemed ineffective for failing to file a suppression motion. It worth noting that defense counsel had prepared a motion but failed to file it despite requests by the court and the prosecutor. The failure “infected” the guilty plea because suppression could have resulted in dismissal of some of the indictment.

 

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A MALFUNCTION OF THE AUDIO RECORDING DEVICE MADE IT IMPOSSIBLE TO TRANSCRIBE PORTIONS OF THE TRIAL; THE APPELLATE COURT SENT THE MATTER BACK FOR A RECONSTRUCTION HEARING (FOURTH DEPT). ​

The Fourth Department, sending the matrimonial action back for a reconstruction hearing, determined the inability to transcribe portions of the audio recording prejudiced the parties:

“Parties to an appeal are entitled to have that record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of the stenographer” or the audio recording device … . Here, contrary to the court’s determination, the record establishes that significant portions of the testimony of plaintiff and defendant, including testimony related to child custody and certain other issues, could not be transcribed due to malfunctions of the audio recording system, which would preclude meaningful appellate review of those issues . To the extent that they are properly before us, we have considered and rejected the parties’ remaining contentions. We therefore reverse the order, grant the motion, and remit the matter to Supreme Court to hold a reconstruction hearing with the parties and any witnesses or evidence the court deems helpful in reconstructing, if possible, those portions of the testimony of plaintiff and defendant that could not be transcribed … . Wagner v Wagner, 2022 NY Slip Op 06600, Fourth Dept 11-18-22

Practice Point: If a recording device malfunctions making it impossible to transcribe portions of a trial, the appellate court may send the matter back to reconstruct the missing parts of the record.

 

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ALTHOUGH THE ISSUE WAS NOT PRESERVED FOR APPEAL, THE FAILURE TO GIVE THE CIRCUMSTANTIAL-EVIDENCE JURY INSTRUCTION WAS REVERSIBLE ERROR (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of criminal possession of a weapon, determined the evidence was entirely circumstantial requiring that the jury be instructed on the circumstantial-evidence standard of proof. The issued had not been preserved for appeal:

Supreme Court erred in failing to give a circumstantial evidence instruction. The evidence against defendant with respect to his possession of the .22 caliber revolver was entirely circumstantial, and the court’s jury instructions “failed to convey to the jury in substance that it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence” … . Inasmuch as the proof of defendant’s guilt is not overwhelming, the inadequacy of the charge was prejudicial error requiring reversal of those parts of the judgment convicting defendant under counts one and two of the superseding indictment and a new trial with respect thereto, notwithstanding defendant’s failure to request such a charge or to except to the charge as given … . People v Soto, 2022 NY Slip Op 06589, Fourth Dept 11-18-22

Practice Point: Here the failure to give the circumstantial-evidence jury instruction required reversal despite the failure to preserve the issue.

 

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THE SUPPRESSION COURT DID NOT RULE ON DEFENDANT’S ARGUMENT THE INITIAL PURSUIT BY THE POLICE WAS NOT JUSTIFIED; AN APPELLATE COURT CANNOT CONSIDER AN ISSUE NOT RULED UPON; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter for a ruling, determined the appellate court could not consider the suppression argument which was not ruled upon by the motion court. Defendant argued the police did not have reasonable suspicion such that the initial pursuit of the suspect was justified:

At the suppression hearing, the People presented evidence that on the night in question, a police officer was flagged down by an unnamed citizen, who stated that shots had been fired in that area. During that conversation, the officer himself heard a gunshot. He went immediately to the location and observed several people hiding or running into a nearby store. One man took flight, grabbing his waistband with both hands. According to the officer, such a gesture was indicative of a person “holding a very heavy object or a handgun.” That individual was the only person not attempting to hide or seek cover. At that point, the officer began his pursuit, but lost sight of the individual. The officer broadcast a description of the suspect, including specifics of his clothing, over the radio, at which point other officers in the area observed a man fitting that description and pursued him, eventually arresting him at a residence and bringing him to the location of the shooting, where he was identified by two eyewitnesses as the person who had fired the shots. Surveillance video from the store and body camera footage from the officers involved confirms the sequence of events. Following the hearing, the court ruled, inter alia, that there was “more than adequate probable cause.” However, the court did not explain when probable cause existed or rule on whether the officer who initially observed the suspect had reasonable suspicion to pursue him.  People v Anderson, 2022 NY Slip Op 06575, Fourth Dept 11-18-22

Practice Point: If an issue was raised in a suppression motion but was not ruled upon by the suppression court, the appellate court cannot consider the issue. Here the Fourth Department remitted the case for a ruling.

 

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