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THE PLEA AGREEMENT COULD NOT BE FULFILLED BECAUSE THE DEFENDANT WAS NOT ELIGIBLE FOR THE PROMISED SHOCK INCARCERATION PROGRAM; DEFENDANT’S GUILTY PLEA WAS THEREFORE NOT VOLUNTARY; ALTHOUGH THE ISSUE WAS NOT PRESERVED BY A MOTION, THE MATTER WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined the plea was invalid because the plea agreement could not be fulfilled. Defendant was promised participation in the shock incarceration program, but a prior violent felony conviction rendered him ineligible. The court noted that the argument the plea was not voluntary (because the promise could not be fulfilled) was not preserved for appeal by a postallocution motion. The appeal was considered in the interest of justice:

There is no dispute that, in light of defendant’s prior violent felony conviction, he was not in fact eligible for participation in a shock incarceration program … . Nor is there any question that a judicial mandate for shock incarceration was part and parcel of defendant’s plea agreement … . “A guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” … . As the promise made here cannot be honored, and given defendant’s insistence that his plea was involuntary, we deem vacatur of the plea and remittal to County Court for further proceedings to be the appropriate remedy  … . People v Regan, 2021 NY Slip Op 06007, Third Dept 11-4-21

 

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ROBBERY CONVICTIONS WERE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE OF PHYSICAL INJURY; SEVERAL CONVICTIONS, ALTHOUGH SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE, WERE AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF THE WEAKNESS OF THE IDENTIFICATION EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction on several counts, determined the evidence the robbery complainants suffered physical injury was legally insufficient, and the weakness of the identification evidence rendered several convictions against the weight of the evidence:

Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). Here, both complainants testified at trial that they were hit from behind on the head. Neither of the complainants sought medical attention. One complainant testified that he had pain that lasted two days, and did not testify that he took any medication to treat his pain. The other complainant testified that his pain lasted for about one week and that he treated it with ice and Advil. Under these circumstances, there was insufficient evidence that either of the complainants suffered a physical injury within the meaning of Penal Law § 10.00(9) … . Accordingly, we vacate the defendant’s convictions of robbery in the second degree … .  * * *

Neither of the complainants who were robbed on February 28, 2016, was able to identify the defendant as one of their assailants, and their descriptions of their assailants as young Hispanic/Latino men about five foot six inches tall wearing dark clothing was not sufficiently distinctive to support an inference that the defendant committed the February 28, 2016 crimes. The modus operandi of the crimes committed on February 28, 2016, and February 29, 2016, was likewise not sufficiently distinctive to support an inference that, because the evidence supported an inference that the defendant committed the February 29, 2016 crimes, he also committed the February 28, 2016 crimes. People v Rodriguez, 2021 NY Slip Op 05990, Second Dept 11-3-21

 

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THE TRAFFIC STOP WAS PRETEXTUAL, OSTENSIBLY BASED ON A BURNED-OUT LICENSE-PLATE LIGHT; BUT THERE WAS SUPPORT IN THE RECORD FOR THE CANINE SNIFF BASED UPON A FOUNDED SUSPICION OF CRIMINAL ACTIVITY; THEREFORE THE MATTER WAS BEYOND REVIEW BY THE COURT OF APPEALS (CT APP).

The Court of Appeals, over an extensive three-judge dissent, determined there was sufficient evidence in the record to support the finding that the canine sniff was justified by a founded suspicion that criminal activity was afoot. The traffic stop was pretextual, ostensibly based on a burned-out license-plate light:

In the course of a stop predicated on the observation of traffic violations … defendant consented to a search of the backseat of his vehicle. Instead of conducting that search, the police officer walked his canine around the exterior of the vehicle and, in mere seconds, the canine alerted to the trunk. Defendant argues that law enforcement lacked founded suspicion that criminal activity was afoot and, thus, unlawfully conducted the exterior canine sniff search.

A canine sniff search of a vehicle’s exterior is lawful if police possess a founded suspicion that criminal activity is afoot … . Determinations regarding the existence of a founded suspicion of criminality involve mixed questions of law and fact … . Therefore, our review is “limited to whether there is evidence in the record supporting the lower courts’ determinations” … . …

Based on the evidence presented at the suppression hearing, including the officers’ observations prior to and during the stop, there is record support for the determination that a founded suspicion of criminal activity existed here and, thus, the issue is beyond further review … .

From the dissent:

Mr. Blandford’s case illustrates a troubling aspect of police behavior: law enforcement can pursue someone they suspect of criminal behavior without a founded suspicion of criminality, wait for the right moment to stop that person for a minor traffic infraction, and then serve up a stew of flavorless facts to transform a stop in which they have no intrinsic interest into the search they sought before they had any evidentiary basis to suspect wrongdoing. Although this case illustrates that problem, its resolution should be much simpler than resolution of the systemic problem: here, the officers did not possess information sufficient to justify the canine search. People v Blandford, 2021 NY Slip Op 05619, CtApp 10-14-21

 

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DEFENDANT’S WAIVER OF APPEAL WAS UNENFORCEABLE; “DIFFICULTIES” BETWEEN DEFENDANT AND TWO ATTORNEYS ASSIGNED TO REPRESENT HIM DID NOT AMOUNT TO DEFENDANT’S FORFEITURE OF HIS RIGHT TO COUNSEL, AS THE TRIAL JUDGE HAD RULED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, determined defendant’s waiver of appeal was not valid and the trial judge had violated defendant’s right to counsel by essentially forcing defendant to represent himself after several attorneys had withdrawn. Of all the attorneys who had withdrawn, only two cited difficulties with the defendant. The cited “difficulties” were defendant’s “raised voice” and “lack of cooperation.” There were no allegations of threats or abusive conduct. The other attorneys had withdrawn citing a conflict of interest, illness and leaving the state:

… [D]efendant’s waiver in the case before us did not contain “clarifying language . . . that appellate review remained available for certain issues” … . Indeed, the written appeal waiver and the colloquy utterly failed to indicate that some rights to appeal would survive the waiver. Moreover, the written waiver implied that defendant was completely waiving his right “to prosecute [an] appeal as a poor person, and to have an attorney assigned” if indigent.

Defendant’s appeal waiver thus mischaracterized the nature of the waiver of appeal by suggesting that the waiver included an absolute bar to the taking of a first-tier direct appeal and the loss of attendant rights to counsel and poor person relief … . * * *

There may be circumstances where a defendant who refuses to cooperate with successive assigned attorneys is ultimately deemed to have forfeited the right to assigned counsel, although such an individual must be afforded the opportunity to retain counsel. … There is record evidence of only two attorneys who asked to be relieved due to difficulties with defendant. … County Court’s own orders relieving Miosek, Taylor, Carlson, and Scott cited conflict of interest, illness, or departure from the state, not attorney-client animosity. Such factors were beyond defendant’s control. People v Shanks, 2021 NY Slip Op 05450, CtApp 10-12-21

 

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DEFENDANT’S GUILTY PLEA WAS COERCED BY THE JUDGE’S THREAT TO IMPOSE A HEAVIER SENTENCE IF CONVICTED AFTER TRIAL; ALTHOUGH THE ISSUE WAS NOT PRESERVED, IT WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant was induced to enter the plea by a threat to impose a heavier sentence after trial. The defendant did not preserve the issue for appeal by a motion to withdraw the plea or vacate the judgment, but the appeal was heard in the interest of justice:

… [D]efendant contends that his plea was rendered involuntary due to statements made by County Court during the plea colloquy indicating that the court would impose the maximum sentence and direct that it run consecutively to a previously imposed sentence if he were convicted at trial. * * *

… [I]t is well settled that a defendant “may not be induced to plead guilty by the threat of a heavier sentence” if he or she decides to proceed to trial … . … [T]he court’s comments about sentencing were not merely a description of the range of the potential sentences; instead, they conveyed to defendant the court’s intent to impose the maximum punishment at sentencing if he proceeded to trial and lost. That constitutes coercion, rendering the plea involuntary … . People v Thigpen-Williams, 2021 NY Slip Op 05429, Fourth Dept 10-8-21

 

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THE SUPPRESSION COURT SHOULD HAVE ORDERED A RODRIGUEZ HEARING; THE APPELLATE DIVISION SHOULD NOT HAVE RELIED ON TRIAL TESTIMONY TO OVERCOME THE SUPPRESSION COURT’S ERROR (CT APP).

The Court of Appeals, reversing (modifying) the Appellate Division, determined defendant was entitled to a Rodriguez hearing on whether a witness’s identification of the defendant was confirmatory. The Court of Appeals noted that the Appellate Division should not have relied on trial testimony to overcome the suppression court’s error:

Supreme Court erred in denying defendant’s pretrial request for a hearing pursuant to People v Rodriguez (79 NY2d 445 [1992]), as the prosecutor here offered only bare assurances that the witness was familiar with defendant. Further, the Appellate Division erroneously relied on testimony adduced at trial to overcome the suppression court’s error.

“Thus, the case should be remitted to Supreme Court for a hearing to determine whether the [photographic] identification procedure was confirmatory. If, after that hearing, the court concludes that the People have not sustained their burden, a Wade hearing should be held and further proceedings, including a new trial, should be had as the circumstances may warrant. If the court concludes that a Wade hearing is not required, the judgment[] should be amended to reflect that result” … . People v Carmona, 2021 NY Slip Op 05390, Ct App 10-7-21

 

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SUPREME COURT MUST RULE ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL BEFORE THE APPELLATE COURT CAN CONSIDER THE ISSUE, MATTER REMITTED FOR A RULING; THE SENTENCE IN THIS DWI CASE WAS ILLEGAL (FOURTH DEPT).

The Fourth Department, remitting the case to Supreme Court, determined the trial court must rule on the motion for a trial order of dismissal before the appeal of that issue can be considered. The Fourth Department noted that the sentence imposed in this DWI case was illegal:

… [W]e may not address defendant’s contention because, “in accordance with People v Concepcion (17 NY3d 192, 197-198 [2011]) and People v LaFontaine (92 NY2d 470, 474 [1998] … ), we cannot deem the court’s failure to rule on the . . . motion as a denial thereof” … . We therefore hold the case, reserve decision, and remit the matter to Supreme Court for a ruling on defendant’s motion … . …

… [W]e note … that the sentence is illegal insofar as the court directed that defendant serve a term of five years of probation, with an ignition interlock device for a period thereof, consecutive to the indeterminate term of imprisonment of 1 to 3 years on his conviction for violating Vehicle and Traffic Law § 1192 (4-a) … . People v Capitano, 2021 NY Slip Op 05225, Fourth Dept 10-1-21

 

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A FRIVOLOUS APPEAL IN THIS DIVORCE PROCEEDING WARRANTED SANCTIONS AGAINST APPELLANT’S ATTORNEY (FOURTH DEPT).

The Fourth Department, determined sanctions against plaintiff’s attorney for bringing a frivolous appeal were in order in this divorce proceeding:

… [W]e consider defendant’s request for costs, attorney’s fees, and sanctions pursuant to 22 NYCRR 130-1.1. We grant defendant’s request in part and award costs in the form of reimbursement by plaintiff’s attorney, Angelo T. Calleri, for actual expenses reasonably incurred and reasonable attorney’s fees resulting from the frivolous conduct of Calleri in prosecuting this appeal … and we remit the matter to Supreme Court to determine such amount … . “[C]onduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” … . We conclude that Calleri’s appellate brief is replete with arguments that qualify as frivolous under the first paragraph of subdivision (c). Indeed, plaintiff’s frivolous request that we impose sanctions against defendant by itself qualifies as frivolous conduct … .  Marshall v Marshall, 2021 NY Slip Op 05194, Fourth Dept 10-1-21

 

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DEFENDANT SHOULD HAVE BEEN ALLOWED TO WITHDRAW HIS GUILITY PLEA; THE WAIVER OF APPEAL DID NOT PRECLUDE AN APPEAL ALLEGING THE GUILTY PLEA WAS INVALID (SECOND DEPT).

The Second Department, reversing County Court, over a dissent, determined defendant should have been allowed to withdraw his guilty plea. The court noted that the defendant’s waiver of appeal did not preclude an appeal alleging the guilty plea was not valid:

… [T]he defendant secured new counsel and made a written motion to withdraw his plea a little more than four months after he pleaded guilty. The County Court denied the defendant’s motion, without a hearing or any further inquiry into the defendant’s claims. At the subsequent sentencing proceeding, the defendant again asserted his innocence and again asked the court to permit him to withdraw his plea based on his attorneys’ failure to provide meaningful representation. The defendant’s application to withdraw his plea at the sentencing proceeding was based on his statements to the court and his prior evidentiary submissions, which tended to substantiate his contention that he had not understood the concept of constructive possession or the nature of the People’s evidence at the time that he pleaded guilty. These submissions were sufficient to cast doubt on his guilt and the validity of his plea … . The People did not allege any prejudice that would have resulted had the court permitted the defendant to withdraw his plea of guilty at that time … . People v Gerald, 2021 NY Slip Op 05130, Second Dept 9-29-21

 

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APPELLATE COUNSEL SHOULD HAVE ARGUED THAT COUNTY COURT FAILED TO CONSIDER A YOUTHFUL OFFENDER ADJUDICATION; WRIT OF ERROR CORAM NOBIS GRANTED AND MATTER REMITTED (SECOND DEPT).

The Second Department granted the writ of error coram nobis and remitted the matter. Appellate counsel should have raised the argument that County Court failed to consider whether defendant should be adjudicated a youthful offender:

… [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 County 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), 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 … . Although we acknowledge that the Court of Appeals decided Rudolph only shortly before former appellate counsel filed the brief on the appeal, because the holding in Rudolph compels vacatur of the sentence, the standard of meaningful representation required former appellate counsel 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 Slide, 2021 NY Slip Op 04982, Second Dept 9-15-21

 

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