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DEFENDANT, DURING THE PLEA COLLOQUY, DID NOT ADMIT HE POSSESSED A STOLEN “MOTOR VEHICLE,” AS OPPOSED TO A “MOTOR CYCLE,” AND THE JUDGE DID NOT INQUIRE FURTHER; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL BY A MOTION TO WITHDRAW THE PLEA; GUILTY PLEA VACATED (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined the judge should have inquired further when defendant did not admit he possessed a “motor vehicle,” as opposed to a “motor cycle.” The court noted the issue may be raised on appeal without having moved to withdraw the plea:

As charged here, criminal possession of stolen property in the fourth degree requires possession of “a motor vehicle . . . other than a motorcycle” … . During his plea allocution the defendant admitted to possession of “a motor cycle.” No further inquiry was made by the Supreme Court.

“[W]here a defendant’s factual recitation negates an essential element of the crime pleaded to, the court may not accept the plea without making further inquiry to ensure that defendant understands the nature of the charge and that the plea is intelligently entered” … . Where, as here, the court fails in its duty to inquire further, a defendant may raise a claim regarding the validity of the plea even without having moved to withdraw the plea … .

Here, as the defendant contends and the People correctly concede, the Supreme Court’s failure to inquire into the validity of the plea after the allocution clearly negated an essential element of the crime requires reversal of the judgment of conviction … . People v Douglas, 2021 NY Slip Op 06857, Second Dept 12-8-21

 

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APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO FILE AN AMENDED BRIEF OR A SUPPLEMENTAL BRIEF AFTER THE COURT OF APPEALS RULED SENTENCING COURTS MUST CONSIDER YOUTHFUL OFFENDER STATUS FOR ALL WHO ARE ELIGIBLE (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined appellate counsel was ineffective and granted a writ of coram nobis. Appellate counsel did not raise the sentencing court’s failure to consider defendant’s eligibility for a youthful offender adjudication. Although the controlling case was decided after the appellate brief was filed, appellate counsel should have amended the brief or submitted a supplemental brief:

… [W]e grant the defendant’s application for a writ of error coram nobis, based on former appellate counsel’s failure to contend on appeal that the Supreme Court failed to determine whether the defendant should be afforded youthful offender status. As held by the Court of Appeals in People v Rudolph (21 NY3d 497, 501), CPL 720.20(1) requires “that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain.” Here, the record does not demonstrate that the court considered whether to adjudicate the defendant a youthful offender, even though the defendant was eligible … . We acknowledge that the Court of Appeals decided Rudolph shortly after former appellate counsel filed the brief on the appeal. However, under the circumstances of this case, after Rudolph was decided, the standard of meaningful representation required former appellate counsel to seek to amend the brief or file a supplemental brief in order to argue that, pursuant to Rudolph, the sentence must be vacated and the matter remitted for determination of the defendant’s youthful offender status … . People v Downing, 2021 NY Slip Op 06698, Second Dept 12-1-21

 

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THERE IS AN EXCEPTION TO THE PRESERVATION REQUIREMENT WHERE A DEFENDANT IS UNAWARE OF THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA AND THEREFORE DID NOT MOVE TO WITHDRAW THE PLEA ON THAT GROUND (SECOND DEPT).

The Second Department, remitting the matter to give the defendant the opportunity to move to vacate his guilty plea on the ground he was not aware of the possibility of deportation. The court explained the relevant exception to the preservation requirement:

“Generally, in order to preserve a claim that a guilty plea is invalid, a defendant must move to withdraw the plea on the same grounds subsequently alleged on appeal or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10” … . Thus, as relevant here, a defendant is ordinarily required to preserve the contention that his or her plea of guilty was not knowing, intelligent, and voluntary because the court failed to advise him or her that the plea could expose him or her to the risk of deportation … .

There is, however, a narrow exception to this general rule. Preservation is not required “where a defendant has no practical ability to object to an error in a plea allocution which is clear from the face of the record” … . The exception applies where the defendant is unaware of the possibility of deportation during the plea and sentencing proceedings, and, therefore, has no opportunity (as well as no motivation) to move to withdraw his or her plea based on the court’s failure to apprise him or her of that potential consequence … . A defendant, of course, “can hardly be expected to move to withdraw his [or her] plea on a ground of which he [or she] has no knowledge” … . People v Jones, 2021 NY Slip Op 06701, Second Dept 12-1-21

 

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THE VERDICT FINDING DEFENDANT CONSTRUCTIVELY POSSESSED DRUGS FOUND IN HIS SISTER’S APARTMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT). ​

The Third Department, reversing defendant’s drug-possession conviction, determined the jury’s conclusion defendant constructively possessed the drugs was against the weight of the evidence:

… [V]iewing the evidence in a neutral light and weighing the relative probative force of the proof, the jury’s determination that defendant constructively possessed the crack cocaine was not supported by the weight of the evidence. The crack cocaine was not discovered in the same room as defendant or near him. Indeed, the officer testified on cross-examination that he did not find any drugs near defendant. Rather, the crack cocaine was found in the north bedroom, i.e., his sister’s bedroom. There was no proof indicating that any of defendant’s personal belongings were in the north bedroom … . Moreover, the crack cocaine was not seen in open view but instead underneath a pile of female clothes. Even accepting that defendant was a daily visitor to his sister’s apartment, the proof does not establish that he resided there or that he exercised any dominion or control over any part of it … . People v Cota, 2021 NY Slip Op 06574, Third Dept 11-24-21

 

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DEFENDANT’S CHALLENGE TO CERTIFICATION AS A SEX OFFENDER WAS FIRST RAISED IN THE APPELLATE DIVISION AND WAS NOT PRESERVED FOR CONSIDERATION BY THE COURT OF APPEALS; THE ILLEGAL SENTENCE EXCEPTION TO THE PRESERVATION REQUIREMENT DOES NOT APPLY BECAUSE SORA CERTIFICATION IS NOT PART OF THE SENTENCE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, determined the challenge to the legality of defendant’s certification as a sex offender, first raised on appeal to the Appellate Division, was not preserved and the illegal sentence exception to the preservation requirement did not apply:

Defendant thereafter pleaded guilty to … burglary in the first degree as a sexually motivated felony … . … [T]he court … advised defendant that he would have to register pursuant to SORA upon his release from prison. * * *

On appeal to the Appellate Division, defendant argued for the first time that his certification as a sex offender was unlawful because his crime of conviction is not an enumerated registerable sex offense under Correction Law § 168-a (2) (a). * * *

The Appellate Division agreed with defendant that under the “clear and unambiguous” language of Correction Law § 168-a (2) (a) “burglary in the first degree as a sexually motivated felony is not a registerable sex offense under SORA” … . * * *

“We have recognized ‘a narrow exception to the preservation rule’ where a court exceeds its powers and imposes a sentence that is illegal in a respect that is readily discernible from the trial record” … . However, “not all claims arising during a sentencing proceeding fall within the exception” … . * * *

… [S]ex offender certification is effectuated by the court pursuant to Correction Law § 168-d and is not addressed in either the Criminal Procedure Law or Title E of the Penal Law. … SORA certification is not part of a sentence and the illegal sentence exception to the preservation requirement does not apply to challenges to certification as a sex offender. People v Buyund, 2021 NY Slip Op 06529, CtApp 11-23-21

 

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IN THIS CHILD VICTIMS ACT ACTION ALLEGING SEXUAL ABUSE BY THE DEFAULTING DEFENDANT WHO ALLEGEDLY WAS AN EMPLOYEE OF THE NON-DEFAULTING DEFENDANT, IT WAS AN IMPROVIDENT EXERCISE OF DISCRETION TO DELAY THE DAMAGES ASPECT OF THE SUIT AGAINST THE DEFAULTING DEFENDANT UNTIL THE TRIAL OR DISPOSITION OF THE SUIT AGAINST THE NON-DEFAULTING DEFENDANT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined delaying the damages aspect of the action against a defaulting defendant until the trial or disposition of the action against a non-defaulting defendant was improper under the facts. The Fourth Department noted that it can substitute its discretion for the lower court’s, even where there has been no abuse of discretion by the lower court. The defaulting defendant was an employee of the non-defaulting defendant, YMCA Buffalo Niagara, when he allegedly sexually abused plaintiff. The lawsuit was brought pursuant to the Child Victims Act:

… [Although] a court may, under appropriate circumstances, defer entry of judgment and a determination of damages against a defaulting defendant until resolution of a separately-commenced companion action against non-defaulting defendants, we … agree with plaintiff’s … contention that the court’s decision to do so here constitutes an improvident exercise of its discretion … . We therefore substitute our own discretion “even in the absence of abuse [of discretion]” … .

… [W]e agree with plaintiff that “further delay undermines the purpose of the Child Victims Act, which is to ‘finally allow justice for past and future survivors of child sexual abuse, help the public identify hidden child predators through civil litigation discovery, and shift the significant and lasting costs of child sexual abuse to the responsible parties’ ” … . Given the schedule of the separate action and the accompanying “uncertainty as to when plaintiff’s claims may be resolved against [YMCA Buffalo Niagara], additional delay may hinder [plaintiff’s] efforts to prove damages against defendant and secure a final judgment, particularly considering defendant’s age and the prospect that defendant’s assets may be dissipated in the interim” … . By contrast, we note that the court did not identify any prejudice to YMCA Buffalo Niagara … . “Although judicial economy, which is an important consideration under CPLR 3215 (d) . . . , may favor a single damages proceeding involving both the defaulting and non-defaulting defendants,” we conclude here that “such consideration does not outweigh the significant prejudice that may inure to plaintiff … . LG 46 DOE v Jackson, 2021 NY Slip Op 06507, Fourth Dept 11-19-21

 

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A CHALLENGE TO THE VOLUNTARINESS OF A GUILTY PLEA SURVIVES A VALID WAIVER OF APPEAL; COUNTY COURT SHOULD HAVE HELD A HEARING ON DEFENDANT’S MOTION TO WITHDRAW THE GUILTY PLEA, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter for a hearing, determined (1) a challenge to the voluntariness of a guilty survives a valid waiver of appeal, and (2) a hearing should have been held on defendant’s motion to withdraw the plea:

Because defendant’s challenge to the voluntariness of her plea would survive even a valid waiver of the right to appeal, we need not address the validity of that waiver … . We agree with defendant that County Court erred in denying her motion to withdraw her plea without a hearing because the record—specifically, defense counsel’s affidavit swearing that defendant’s plea was coerced—”raises a legitimate question as to the voluntariness of the plea” … . We therefore hold the case, reserve decision, and remit the matter to County Court to appoint new defense counsel and to rule on defendant’s motion to withdraw her plea following an evidentiary hearing. People v Gumpton, 2021 NY Slip Op 06519, Fourth Dept 11-19-21

 

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THE SECOND DEPARTMENT HAD REVERSED DEFENDANT’S MURDER CONVICTION, STATING IT WAS REVERSING ON WEIGHT OF THE EVIDENCE GROUNDS FOR THE SAME REASONS IT WAS REVERSING ON LEGAL SUFFICIENCY GROUNDS; THAT CONSTITUTED AN ERROR OF LAW REVIEWABLE BY THE COURT OF APPEALS; THE COURT OF APPEALS DETERMINED THERE WAS LEGALLY SUFFICIENT EVIDENCE TO SUPPORT CONVICTION; THE MATTER WAS REMITTED FOR PROPER ASSESSMENT OF THE WEIGHT OF THE EVIDENCE (CT APP).

The Court of Appeals, reversing People v Romualdo, 2020 NY Slip Op 06559 [188 AD3d 928], Second Dept 11-12-20, remitted the matter for a proper assessment of the weight of the evidence. The Court of Appeals has the authority to review a weight of the evidence determination when the appellate court failed to consider the issue or did so using an incorrect legal principle. “The Appellate Division’s statement that it was reversing on weight of the evidence grounds for the ‘same reasons’ that it was reversing on legal sufficiency grounds constituted an error of law …”:

The Appellate Division reversed defendant’s [murder] conviction, describing its holding as “on the law and on the facts,” and dismissed the indictment on both legal sufficiency and weight of the evidence grounds … . Both of those determinations were based upon the Appellate Division’s conclusion that “the People presented no evidence placing the defendant at or near the scene of the crime, or linking him in any way to the victim, during the critical time frame in which the murder was believed to have occurred”… . Both holdings were erroneous as a matter of law. * * *

… [A] rational jury could have inferred from the medical evidence presented at trial that the victim was sexually assaulted immediately prior to her death. Inasmuch as defendant’s semen was found on the victim’s genitalia, the semen had not transferred to the victim’s clothing, which was still in a state of disarray when her body was found, defendant lived in close proximity to the crime scene, and defendant falsely denied knowing or having sex with the victim, a rational jury could conclude that defendant was present at the time of the victim’s death and killed the victim during the course of, or immediately after, sexually assaulting her … . Therefore, the evidence was legally sufficient to support defendant’s conviction. … People v Romualdo, 2021 NY Slip Op 06430, Ct App 11-18-21

 

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DEFENDANT WAS NOT INFORMED HIS GUILTY PLEA COULD RESULT IN DEPORTATION; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL; MATTER REMITTED TO GIVE DEFENDANT THE OPPORTUNITY TO MOVE TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT).

The Second Department, remitting the matter to Supreme Court, determined defendant should be given the opportunity to withdraw his guilty plea because he was not informed of the possibility of deportation. The issue was not subject to the preservation requirement for appeal:

… [T]he defendant’s contention that his due process rights were violated due to the Supreme Court’s failure to warn him that his pleas could subject him to deportation is excepted from the requirement of preservation because the record does not demonstrate that the defendant was aware that he could be deported as a consequence of his pleas of guilty … . Indeed, here, the record shows that the court failed to address the possibility of deportation as a consequence of the defendant’s pleas of guilty … . Inasmuch as there is no indication in the record that the defendant was aware that he could be deported as a result of his pleas … , the defendant had no “practical ability” to object to the court’s comment about immigration consequences or to otherwise tell the court, if he chose, that he would not have pleaded guilty if he had known about the possibility of deportation … .

… [W]e remit the matters to the Supreme Court, Kings County, to afford the defendant an opportunity to move to vacate his pleas of guilty and for a report by the Supreme Court thereafter … . Any such motion shall be made by the defendant within 60 days after the date of this decision and order … . Upon such motion, the defendant will have the burden of establishing that there is a “reasonable probability” that he would not have pleaded guilty had the court warned him of the possibility of deportation … . People v Bamugo, 2021 NY Slip Op 06363, Second Dept 11-17,21

 

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DEFENDANT’S WAIVER OF APPEAL WAS INVALID; UNWARNED STATEMENTS MADE DURING CUSTODIAL INTERROGATION SHOULD HAVE BEEN SUPPRESSED; GUILTY PLEA VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant’s waiver of appeal was invalid and unwarned statements made by the defendant under custodial interrogation should have been suppressed. Defendant was interrogated about two missing college students. As the questioning proceeded it became apparent defendant was involved in the matter in some way, and eventually she revealed where the students were:

Defendant orally waived her right to appeal and executed a written waiver of the right to appeal. The language in the written waiver is inaccurate and misleading insofar as it purports to impose “an absolute bar to the taking of a direct appeal” and purports to deprive defendant of her “attendant rights to counsel and poor person relief, [as well as] all postconviction relief separate from the direct appeal” … . … A “waiver[] cannot be upheld . . . on the theory that the offending language can be ignored and that [it is] enforceable based on the court’s few correctly spoken terms” … . …

… [D]efendant was placed in a conference room and was questioned by an investigator from approximately 3:15 p.m. until 5:00 p.m. At 5:00 p.m., another investigator accompanied defendant to the bathroom, and the investigator continued questioning defendant. During that conversation, defendant made admissions demonstrating that she was more involved in the case than she had initially revealed, that she knew who was holding the students, and that one of the students had been shot. … At no time was she ever given Miranda warnings. People v Hughes, 2021 NY Slip Op 06231, Fourth Dept 11-12-21

 

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