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THE WAIVER OF APPEAL WAS INVALID BECAUSE THE JUDGE STATED THE WAIVER WAS AN ABSOLUTE BAR TO AN APPEAL (FOURTH DEPT).

The Fourth Department determined defendant’s waiver of appeal was invalid:

… [D]efendant’s waiver of the right to appeal is invalid because County Court’s oral colloquy mischaracterized it as an “absolute bar” to the taking of an appeal … . …

Furthermore, the written waiver executed by defendant did not contain any clarifying language to correct deficiencies in the oral colloquy. Rather, it perpetuated the oral colloquy’s mischaracterization of the waiver of the right to appeal as an absolute bar to the taking of a first-tier direct appeal and even stated that the rights defendant was waiving included the “right to have an attorney appointed” if she could not afford one and the “right to submit a brief and argue before an appellate court issues relating to [her] sentence and conviction” … . People v Shea’Honnie D., 2023 NY Slip Op 03137, Fourth Dept 6-9-23

Practice Point: A waiver of appeal is not absolute and the judge’s characterizing a waiver as absolute invalidates it.

 

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THE PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE; THE FACT THAT THE VICTIM WAS SHOT IN THE BACK DURING A SHOOTOUT WAS NOT ENOUGH (FIRST DEPT).

The First Department, exercising its interest of justice jurisdiction, reversing defendant’s manslaughter conviction, determined the People did not disprove defendant’s justification defense. The fact that, during a shoot-out, the victim was shot in the back was not enough:

“When a defense of justification is raised, the People must prove beyond a reasonable doubt that [the] defendant’s conduct was not justified. In other words, the People must demonstrate beyond a reasonable doubt that the defendant did not believe deadly force was necessary or that a reasonable person in the same situation would not have perceived that deadly force was necessary” … . In this case, the evidence regarding which man initiated the gunfire was equivocal at best. Valentin, the lone eyewitness, testified that she did not know who fired first. Footage from numerous surveillance cameras, each of which captured only part of the scene, did not answer that question, nor did the ballistic evidence. There was no evidence that defendant approached displaying a firearm. Rather, the evidence strongly suggests that [the victim]  was the first person to do so.

In this case, we do not believe that the mere fact that the victim was shot in the back establishes that defendant was the initial aggressor, or that he did not reasonably believe that deadly physical force was still being used against him at the time he fired the fatal shot. Under the totality of the evidence, the fact that [the victim]  had his back turned to defendant at the moment when he was shot does not establish that he was withdrawing from the gunfight or running away. People v Skeeter, 2023 NY Slip Op 02946, First Dept 6-1-23

Practice Point: When the justification defense is raised, the People must disprove it beyond a reasonable doubt. Here the fact that the victim was shot in the back during a shoot-out was not enough to disprove the defense.

 

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THE CONVICTION UPON WHICH DEFENDANT’S SECOND-FELONY-OFFENDER STATUS WAS BASED WAS MORE THAN 10 YEARS BEFORE THE CURRENT OFFENSE AND THE PEOPLE DID NOT DEMONSTRATE THAT ANY PORTION OF THE 10-YEAR PERIOD WAS TOLLED BY INCARCERATION; SENTENCE VACATED AND MATTER REMITTED FOR A HEARING AND RESENTENCING (THIRD DEPT). ​

The Third Department, vacating defendant’s sentence as a second felony offender and remitting the matter for a hearing. determined the People did not submit evidence demonstrating when defendant was incarcerated such that the 10-year look-back period for the prior felony conviction could be calculated. The court noted that the issue need not be preserved for appeal:

… [D]efendant contends that he was not properly sentenced as a second felony offender. … [D]efendant was not required to preserve such a claim where, as here, the purported illegality is plain “from the face of the appellate record” … . … [W]e agree with defendant that the record reflects that his April 11, 2011 sentence on his predicate felony conviction was imposed more than 10 years before the commission of the instant offense, which occurred on July 6, 2021 … , and the People failed to meet their burden of showing that the 10-year look-back period was tolled by any periods of incarceration … . At sentencing, defendant admitted to the prior offense, but the People’s predicate felony statement did not set forth defendant’s dates of incarceration … . Since the record fails to disclose the legality of sentencing defendant as a second felony offender, the matter must be remitted for a hearing on this issue and resentencing … . People v McCall, 2023 NY Slip Op 02719, Third Dept 5-18-23

Practice Point: Here the People’s failure to submit proof of defendant’s prior incarceration made it impossible to determine whether the 10-year look-back period for a prior felony was tolled. Defendant’s sentence as a second felony offender was vacated and the matter was remitted for a hearing and resentencing.

 

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THE DEFENDANT ARGUED A 2022 US SUPREME COURT RULING FINDING NEW YORK’S FIREARM LICENSING REQUIREMENT UNCONSITUTIONAL RENDERED THE POSSESSION-OF-A-WEAPON STATUTE TO WHICH HE PLED GUILTY IN 2016 UNCONSTITUTIONAL; THE ISSUE WAS NOT PRESERVED BECAUSE IT WAS NOT RAISED IN THE TRIAL COURT IN 2016 (FIRST DEPT).

The First Department refused to consider a constitutional issue on appeal because the issue was not preserved. Defendant pled guilty in 2016. The defendant argued on appeal that a 2022 US Supreme Court ruling rendered the offense to which he pled guilty, Penal Law 265.03(3), unconstitutional. In order to preserve that issue for appeal, it must have been raised before the trial court in 2016. The US Supreme Court case, New York State Rifle & Pistol Assn., Inc. v Bruen, 142 S Ct 2111 [2022]), declared New York’s license requirement for carrying a loaded firearm in public unconstitutional. Defendant pled guilty to possessing a loaded weapon outside his home or business:

Defendant did not preserve his claim that Penal Law § 265.03(3) is unconstitutional in light of the United States Supreme Court’s decision in New York State Rifle & Pistol Assn., Inc. v Bruen …), or his related claim that the ineligibility of persons under 21 (such as himself at the time of the crime) to apply for licenses to carry firearms violates the Second Amendment. “This [preservation] requirement is no mere formalism, but ensures that the drastic step of striking duly enacted legislation will be taken not in a vacuum but only after the lower courts have had an opportunity to address the issue and the unconstitutionality of the challenged provision has been established” … .

“[D]efendant should not be permitted to avoid the consequences of the lack of preservation” on the ground that a constitutional challenge to Penal Law § 265.03(3) would have been futile … . Here, “[a]lthough [Bruen] had not yet been decided, and trial counsel may have reasonably declined to challenge the [constitutionality of Penal Law § 265.03 (3)], defendant had the same opportunity to advocate for a change in the law as [any other] litigant” … . Defendant is essentially making the argument that an “appellant should not be penalized for his failure to anticipate the shape of things to come,” but the Court of Appeals has expressly rejected that argument … . This preservation principle applies to constitutional claims … .

As an alternative holding, we find that on the present record, defendant has failed to establish that Penal Law § 265.03(3) is unconstitutional. People v Adames, 2023 NY Slip Op 02623, Fist Dept 5-16-23

Practice Point: Even if there has been no ruling on the constitutionality of a statute at the time the offense is before the trial court, in order to preserve the constitutional issue it must be raised in the trial court. Here defendant argued a 2022 US Supreme Court ruling finding New York’s firearm licensing requirement unconstitutional rendered the possession-of-a-weapon statute to which he pled guilty in 2016 unconstitutional. The First Department held the issue was not preserved because it was not raised in the trial court in 2016.

 

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THE DEPRAVED INDIFFERENCE MURDER JURY INSTRUCTION DID NOT PROPERLY EXPLAIN THAT DEPRAVED INDIFFERENCE IS THE DEFENDANT’S MENTAL STATE AT THE TIME OF THE CRIME, NOT THE OBJECTIVE CIRCUMSTANCES UNDER WHICH THE HOMICIDE OCCURRED; APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ISSUE; WRIT OF CORAM NOBIS GRANTED AND NEW TRIAL ORDERED (THIRD DEPT).

The Third Department (1) granted the writ of coram nobis based upon appellate counsel’s failure to raise the issue, and (2) ordered a new trial on the second degree murder charge because the jury instruction on depraved indifference was defective. Although the issue was not preserved, the Third Department considered it in the interest of justice:

Defendant asserts that County Court’s instructions to the jury regarding depraved indifference murder were consistent with the overruled objective standard set forth in People v Register (60 NY2d 270 [1983] …), and therefore the court’s instructions failed to explain the requisite culpable mental state as required by People v Feingold (7 NY3d 288 [2006]). We agree. In discharging its duty to deliver a charge to the jury, “[a] court must instruct the jury regarding both the ‘fundamental legal principles applicable to criminal cases in general’ and those ‘material legal principles applicable to the particular case’ ” (… CPL 300.10 [1], [2]). At the time of defendant’s trial, the Court of Appeals had already held that “depraved indifference to human life is a culpable mental state” … . As a result, “under Feingold, it is not the circumstances under which the homicide occurred that determines whether [a] defendant is guilty of depraved indifference murder, but rather [the] defendant’s mental state at the time the crime occurred” … .

Upon our review of the record, which reflects that County Court had twice instructed the jury with the overruled objective standard, “the jury charge did not unambiguously state that depraved indifference was the culpable mental state for the crime with which defendant was charged, [and therefore] we cannot conclude that the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at a decision” … . People v Weaver, 2023 NY Slip Op 02352, Third Dept 5-4-23

Practice Point: The depraved indifference jury instruction was similar to the overruled objective standard requiring a new trial. Depraved indifference is the defendant’s mental state at the time of the crime, not the circumstances of the commission of the homicide.

Practice Point: Although the issue was not preserved, appellate counsel was ineffective for failing to raise it on appeal. Here the writ of coram nobis was granted, the conviction reversed and a new trial ordered.

 

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DEFENDANT’S “PROMOTING A SEXUAL PERFORMANCE BY A CHILD” CONVICTION WAS REVERSED ON THE LAW; THE DEFENDANT CANNOT BE CLASSIFIED AS A “SEX OFFENDER” (FOURTH DEPT).

The Fourth Department noted that if the underlying conviction has been reversed and the indictment dismissed it can no longer be the basis for classifying the defendant as a “sex offender:”

While this appeal was pending, this Court reversed the judgment convicting defendant of eight counts of promoting a sexual performance by a child as a sexually motivated felony (Penal Law §§ 130.91, 263.15) on the law and dismissed the indictment … .

A “sex offender” includes a person who is convicted of an offense described in Correction Law § 168-a (2) or (3). However “[a]ny [such] conviction set aside pursuant to law is not a conviction” for purposes of the statute (§ 168-a [1]; see § 168-d [1] [a]). Inasmuch as defendant’s judgment of conviction has been “set aside pursuant to law” (§ 168-a [1]) by reversal of this Court …, defendant does not qualify as a “sex offender” within the meaning of SORA, and the risk level determination must be vacated … . People v Congdon, 2023 NY Slip Op 02228, Fourth Dept 4-28-23

Practice Point: Where a sexual-offense conviction has been reversed on the law and the indictment dismissed, the defendant cannot be classified as a “sex offender.”

 

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THE ASSAULT SECOND CONVICTION WAS REVERSED BECAUSE PROOF A BAMBOO STICK WAS A “DANGEROUS INSTRUMENT” WAS LEGALLY INSUFFICIENT; ASSAULT THIRD CONVICTION VACATED AS AN INCLUSORY CONCURRENT COUNT OF ASSAULT SECOND (SECOND DEPT).

The Second Department determined the assault second conviction was not supported by legally sufficient evidence that a bamboo stick was a “dangerous instrument:”

The defendant … contends that the evidence was legally insufficient to support her convictions of assault in the second degree pursuant to Penal Law § 120.05(2) … and criminal possession of a weapon in the fourth degree based on the People’s theory that a bamboo stick the defendant used to discipline the child was a dangerous instrument. Although the defendant’s contention is unpreserved for appellate review (see CPL 470.05[2]), we reach the issue in the exercise our interest of justice jurisdiction (see id. § 470.15[6][a]). A “dangerous instrument” is defined as “any instrument . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury” (Penal Law § 10.00[13]). “Serious physical injury” is defined as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00[10]). Here, viewing the evidence in the light most favorable to the prosecution, it was legally insufficient to establish that the bamboo stick, which was not produced at trial, “was readily capable of killing or maiming [the child], or of causing any of the other severe harms described in Penal Law § 10.00(10)” … .

Further, the defendant’s conviction of assault in the third degree pursuant to Penal Law § 120.00(1) must be vacated, and that count of the indictment dismissed, as an inclusory concurrent count of assault in the second degree pursuant to Penal Law § 120.05(9) … .  People v Weng, 2023 NY Slip Op 02134, Second Dept 4-26-23

Practice Point: Here the assault second conviction was not supported by legally sufficient proof a bamboo stick was a “dangerous instruction.” The assault third conviction was vacated as an inclusory concurrent count of assault second.

 

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THIS FAMILY OFFENSE PROCEEDING WAS REMITTED TO FAMILY COURT; APPELLATE REVIEW WAS NOT POSSIBLE IN THE ABSENCE OF FINDINGS OF FACT ADDRESSING CONFLICTING EVIDENCE AND THE CREDIBILITY OF WITNESSES (SECOND DEPT).

The Second Department, remitting the matter to Family Court in this family offense proceeding, noted that appellate review was impossible without findings of fact:

The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court, and that court’s determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record … .

Effective appellate review requires that appropriate factual findings be made by the hearing court since it is the court best able to measure the credibility of the witnesses … . In granting or denying a petition for an order of protection, the Family Court must state the facts deemed essential to its determination (see CPLR 4213[b] … ). Remittal is not necessary, however, where the record is sufficient for this Court to conduct an independent review of the evidence … .

Here, the Family Court, which was presented with sharply conflicting accounts by the parties regarding their allegations, issued mutual orders of protection without setting forth any findings with respect to the credibility of the parties or the facts deemed essential to its determinations (see CPLR 4213[b]). Since the record presents factual issues, including questions of credibility, and in light of the conflicting allegations made by the parties against each other, resolution thereof is best left to the court of first instance … . Matter of Sealy v Peart, 2023 NY Slip Op 02128, Second Dept 4-26-23

Practice Point: Here in this family offense proceeding appellate review was not possible because the Family Court judge did not make any findings addressing conflicting evidence and the credibility of witnesses. The matter was remitted because the record was not sufficient for an independent review.

 

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THE PROVISION OF MENTAL HYGIENE LAW SECTION 10 THAT ALLOWS A COURT TO DETERMINE WHETHER THERE IS PROBABLE CAUSE TO BELIEVE PETITIONER, WHO HAD BEEN RELEASED TO A STRICT AND INTENSIVE SUPERVISION AND TREATEMENT (SIST) REGIMEN, IS A DANGEROUS SEX OFFENDER REQUIRING CONFINEMENT IS NOT UNCONSTITUTIONAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this habeas corpus proceeding, determined the “provision of Mental Hygiene Law § 10.11(d)(4) that directs the court to determine whether there is probable cause to believe that a respondent in a proceeding pursuant to Mental Hygiene Law article 10 is a dangerous sex offender requiring confinement based upon a review of the allegations in a petition for confinement and any accompanying papers does not violate that respondent’s federal or state rights to due process.” The court further determined the issue raised here might recur so the appeal was not rendered moot by the petitioner’s release “to a regimen of strict and intensive supervision and treatment (… SIST):

Mental Hygiene Law § 10.11 permits the court to revoke a regimen of SIST upon a violation of SIST conditions and sets forth the required procedures for such a revocation … . The statute provides, as relevant here, that if a parole officer has “reasonable cause to believe” that a sex offender requiring SIST has violated a condition thereof, the offender can be taken into custody for five days for an evaluation by a psychiatric examiner, and the attorney general and the Mental Hygiene Legal Service (hereinafter MHLS) are to be promptly notified … . The attorney general may then file a petition for confinement within five days after the offender is taken into custody, which petition must be served promptly on MHLS, and counsel must be appointed for the offender … . If a petition for confinement is filed, “the court shall promptly review the petition and, based on the allegations in the petition and any accompanying papers, determine whether there is probable cause to believe that the [offender] is a dangerous sex offender requiring confinement” … . There is no provision permitting the offender an opportunity to be heard prior to the probable cause determination. Once the probable cause determination is made, the offender may be retained pending the conclusion of the proceeding … . “Within thirty days after a petition for confinement is filed . . . , the court shall conduct a hearing” to make a final determination, but the failure to commence the hearing within that time period does not result in dismissal of the petition or “affect the validity of the hearing or the determination” … . People ex rel. Neville v Toulon, 2023 NY Slip Op 02015, Second Dept 4-19-23

Practice Point; The provision of Mental Hygiene Law section 10 that allows a court to determine whether there is probable cause to believe petitioner, who had been released to a SIST regimen, is a dangerous sex offender requiring confinement is not unconstitutional.

Practice Point: Although at the time of this appeal in this habeas corpus proceeding petitioner had been released to a SIST regimen, the issue is likely to recur so the “exception to the mootness doctrine” doctrine was invoked.

 

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DEFENDANT’S BURGLARY CONVICTION WAS BASED SOLELY ON A SODA CAN WITH HIS DNA ON IT; THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT). ​

The First Department determined the burglary conviction was against the weight of the evidence:

The verdict convicting defendant of a burglary of a doctor’s office that occurred in July 2015 was against the weight of the evidence … . Defendant was connected to this burglary solely through the presence of his DNA on an opened soda can in the reception area. The office manager’s testimony failed to address whether there was any innocent explanation for the presence of defendant, or of the soda can, at that location. … . People v Taylor, 2023 NY Slip Op 01848, First Dept 4-6-23

Practice Point: Defendant was convicted of the burglary of a doctor’s office based solely on the presence of a soda can with his DNA on it in the reception area. The testimony did not address whether there was an innocent explanation for the presence of the soda can. The conviction was against the weight of the evidence.