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A VALID WAIVER OF APPEAL PRECLUDES AN APPEAL ALLEGING THE VIOLATION OF DEFENDANT’S RIGHT TO AN OPPORTUNITY TO MAKE A PERSONAL STATEMENT AT SENTENCING (CT APP).

The Court of Appeals, in a brief memorandum decision, over an extensive two-judge dissent, determined a waiver of appeal precluded an appeal alleging the violation of defendant’s right to an opportunity to make a personal statement at sentencing:

… [D]efendant’s contention that his CPL 380.50(1) right to an opportunity to make a personal statement at sentencing was violated is not reviewable because such a claim did not survive the valid appeal waiver. Although the statutory right is “deeply rooted” and “substantial,” its value is largely personal to defendant … . Defendant’s claim does not fall among the narrow class of nonwaivable defects that undermine “the integrity of our criminal justice system . . . [or] implicate . . . a public policy consideration that transcends the individual concerns of a particular defendant to obtain appellate review” … . Moreover, despite defendant’s arguments to the contrary, a valid unrestricted waiver of appeal elicited during a plea proceeding can preclude appellate review of claims that have “not yet reached full maturation,” including those arising during sentencing … , nor is this challenge to presentence procedures reviewable under the illegal sentence exception … . People v Brown, 2021 NY Slip Op 02867, CtApp 5-6-21

 

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THE LAW OF THE CASE DOCTRINE PRECLUDED SUPREME COURT’S CONSIDERATION OF ADDITIONAL EVIDENCE TO JUSTIFY SENTENCING DEFENDANT AS A PERSISTENT VIOLENT FELONY OFFENDER; THE APPELLATE COURT HAD SENT THE MATTER BACK FOR RESENTENCING AFTER FINDING PERSISTENT VIOLENT FELONY OFFENDER STATUS WAS NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the law of the case doctrine precluded precluded Supreme Court from considering additional evidence and finding the incarceration tolling period was sufficient to permit sentencing defendant as a persistent violent felony offender. The Second Department, on a prior appeal, had found the tolling period insufficient and sent the matter back for resentencing:

“The doctrine of the law of the case is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” … . “An appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court” … , and “‘forecloses reexamination of [an issue previously determined] absent a showing of newly discovered evidence or a change in the law'” … .

Here, this Court previously determined, on the merits, that the defendant’s incarceration dates did not amount to a sufficient tolling period so as to qualify the March 27, 1987 conviction as a predicate violent felony under Penal Law § 70.04(1)(b)(iv) and (v). The People had a full and fair opportunity to litigate this issue both at the initial hearing before the Supreme Court in 2013, and before this Court on appeal … . People v Kaval, 2021 NY Slip Op 02823, Second Dept 5-5-21

 

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FAMILY COURT, UPON REMITTAL AFTER A PRIOR REVERSAL ON APPEAL, DID NOT MAKE A SUFFICIENT RECORD FOR REVIEW OF ITS ORDER RE: FATHER’S PARENTAL ACCESS (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court, upon remittal after a prior reversal, did not create a sufficient record to allow review of its order re: father’s parental access schedule:

“In determining custody and [parental access] issues, the most important factor to be considered is the best interests of the child” … . “Generally, [parental access] should be determined after a full evidentiary hearing to determine the best interests of the child” … .

“A trial court must state in its decision ‘the facts it deems essential’ to its determination” … . “Effective appellate review, especially in proceedings involving child custody determinations, ‘requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses'” … . Under the circumstances of this case, the record is not sufficient for this Court to conduct an intelligent review of the evidence.

Furthermore, the children are of such an age and maturity that information regarding their preferences is necessary to create a sufficient record to determine their best interests … . Matter of Georgiou-Ely v Ely, 021 NY Slip Op 02796, Second Dept 5-5-21

 

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APPEAL DISMISSED BECAUSE DEFENDANT WAS DEPORTED (SECOND DEPT).

The Second Department dismissed defendant’s appeal because he has been deported. The appeal can be reinstated if defendant returns to the court’s jurisdiction:

In People v Harrison (27 NY3d 281), the Court of Appeals reaffirmed its ruling that an intermediate appellate court retains its discretion to dismiss a pending permissive appeal due to a defendant’s involuntary deportation. Here, if this Court were to reverse the order appealed from, the defendant would be required to attend and participate in further proceedings in the Supreme Court, which he can no longer do. Accordingly, we grant the People’s motion and dismiss the appeal, without prejudice to a motion to reinstate the appeal should the defendant return to this Court’s jurisdiction … . People v Lopez, 2021 NY Slip Op 02546, Second Dept 4-28-21

 

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DEFENDANT’S PLEA ALLOCUTION NEGATED AN ELEMENT OF THE OFFENSE; PRESERVATION OF THE ERROR NOT REQUIRED BECAUSE THE JUDGE FAILED TO INQUIRE FURTHER AT THE TIME OF THE ALLOCUTION (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined the plea allocution negated the intent-to-sell element of criminal possession of a controlled substance. Preservation of the error for appeal was not required because the judge did not make a sufficient inquiry at the time of the allocution:

As charged here, criminal possession of a controlled substance in the third degree requires “knowingly and unlawfully” possessing “a narcotic drug with intent to sell it” (Penal Law § 220.16[1]). The defendant denied during his plea allocution that he intended to sell the drugs he possessed. This is “that rare case . . . where the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea” … . …

“[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” … . When a defendant makes remarks during the plea allocution that cast significant doubt on his guilt concerning an element of the crime, the court has a duty to conduct further inquiry to ensure that the plea was knowingly and voluntarily made … . 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 … . People v Gause, 2021 NY Slip Op 02543, Second Dept 4-28-21

 

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APPEAL HELD AND MATTER REMITTED TO ALLOW DEFENDANT TO MOVE TO VACATE HIS GUILTY PLEA ON THE GROUND HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES (SECOND DEPT).

The Second Department held the appeal in abeyance and remitted the matter to give defendant the opportunity to move the vacate his guilty plea on the ground he was not informed of the possibility he would be deported based on his plea:

“A defendant seeking to vacate a plea based on this failure must demonstrate that there is a ‘reasonable probability’ that he or she would not have entered a plea of guilty and would instead have gone to trial had the court warned of the possibility of deportation” … . Here, in the absence of the warning required under People v Peque (22 NY3d at 176), we remit the matter to the Supreme Court, Queens County, to afford the defendant an opportunity to move to vacate his plea, and thereafter for a report to this Court limited to the Supreme Court’s findings with respect to whether the defendant has moved to vacate his plea of guilty and whether he has established his entitlement to the withdrawal of his plea. Any such motion shall be made by the defendant within 60 days after the date of this decision and order, and, 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 advised him of the possibility of deportation … . We hold the appeal in abeyance pending receipt of the Supreme Court’s report. We express no opinion as to the merits of the defendant’s motion, should he make one … . People v Torres, 2021 NY Slip Op 02424, Second Dept 4-21-21

 

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THE EVIDENCE THAT DEFENDANT WAS AN ACCOMPLICE IN A DRUG SALE AND WAS PART OF A CONSPIRACY TO SELL DRUGS WAS LEGALLY INSUFFICIENT; MERE PRESENCE IS NOT ENOUGH FOR ACCOMPLICE LIABILITY AND THERE WAS NO PROOF OF AN OVERT ACT RELEVANT TO DEFENDANT (SECOND DEPT).

The Second Department, reversing defendant’s convictions of criminal sale of a controlled substance, on an accomplice theory, and conspiracy, based on mere presence. Defendant was in the car with Alvarado, who sold heroin to an undercover officer who briefly got into the car, purchased the drugs, and left. The evidence defendant acted as an accomplice and was part of a conspiracy was deemed legally insufficient and against the weight of the evidence:

… [T]he evidence reflects that the defendant met Alvarado on April 25, 2015, to accompany Alvarado to the driving school before Alvarado and the undercover officer arranged the meeting, and that Alvarado told the undercover officer prior to the meeting that he had to “do this thing for my license.” Thus, the defendant’s mere presence during the sale, with knowledge of what was transpiring at that time, was insufficient to establish the defendant’s guilt of criminal sale of a controlled substance in the third degree … . …

… [T]he evidence was legally insufficient to establish that the defendant entered into an agreement with Alvarado to sell heroin on April 25, 2015, since there was no evidence that the defendant participated in arranging the heroin sale or even had any discussion with Alvarado about selling heroin on that date … . Further, the People failed to present any evidence of an “overt act” connected to any statements made during the wiretapped calls between the defendant and Alvarado. Accordingly, the evidence was legally insufficient to establish the defendant’s guilt of conspiracy in the fourth degree beyond a reasonable doubt. People v Moreno, 2021 NY Slip Op 02316, Second Dept 4-14-21

 

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THE ANONYMOUS TIP THAT A MAN WITH A GUN WAS LEAVING A CLUB DID NOT PROVIDE THE POLICE WITH SUFFICIENT INFORMATION FOR STOPPING AND DETAINING THE DEFENDANT WHO SUBSEQUENTLY RAN, PULLED OUT A HANDGUN AND WAS SHOT BY THE POLICE; DEFENDANT’S MOTION TO SUPPRESS THE HANDGUN SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing the denial of defendant’s suppression motion, determined the police, action on an anonymous tip, did not have sufficient information to stop and detain the defendant. The defendant ran, pulled out a handgun, and was shot by the police. The defendant moved to suppress the handgun. The Second Department noted that the theories supporting the initial stop of the defendant where not raised or ruled upon below and therefore could not be considered on appeal:

… [T]he Supreme Court erred in finding, in effect, that the police had lawfully stopped the defendant before the defendant fled from the police and removed a gun from his waist. The hearing testimony indicated that the law enforcement officials who were in the sergeant’s vehicle had received a tip that two individuals, one of whom had a gun, were leaving the club. There was no evidence presented at the hearing as to the identity of the individual who provided the tip, no evidence that the informant explained to the police how he or she knew about the gun, no evidence that the informant supplied any basis to believe that he or she had inside information about the defendant, and no evidence that the informant had “‘knowledge of concealed criminal activity'” … . Therefore, the police lacked reasonable suspicion to stop the defendant and his companion based solely on the tip. People v Benbow, 2021 NY Slip Op 02304, Second Dept 4-14-21

 

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ARGUING FOR LENIENCY IN SENTENCING DOES NOT PRESERVE THE ARGUMENT THAT THE SENTENCING WAS VINDICTIVE (CT APP).

The Court of Appeals determined the argument that the sentence to imprisonment was vindictive was not preserved. Defendant had successfully appealed his conviction after a nonjury verdict and then pled guilty to a different offense before a different judge. Although defendant argued for leniency, that did not preserve the “vindictive sentencing” argument:

The claim that the sentence imposed upon defendant’s guilty plea was presumptively vindictive and imposed without State Due Process protections … is unpreserved. Defendant’s arguments against imposition of the term of imprisonment, registered before the court imposed sentence, were consistent with arguments for leniency and made no specific reference to the principle of vindictiveness or any potential constitutional violation. Defendant also failed to either object to the sentence actually imposed or move to withdraw his guilty plea. Nor does this record support a claim that the sentence, which was within the ambit of the range of sentences for a class A misdemeanor, was illegal in a respect that “can readily be discerned from the . . . record” … . As a result, defendant’s arguments are unreviewable. People v Olds, 2021 NY Slip Op 02019, CtApp 4-1-21

 

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DEFENDANT WAS CONVICTED OF FELONY MURDER, TWO COUNTS OF ROBBERY AND CRIMINAL POSSESSION OF A WEAPON BASED PRIMARILY ON HIS CONFESSION; THE ROBBERY CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE; THE JUDGE DID NOT MAKE THE REQUIRED MINIMAL INQUIRY WHEN DEFENDANT REQUESTED NEW COUNSEL; COUNSEL WERE INEFFECTIVE FOR FAILING TO REQUEST THE REDACTION OF DEFENDANT’S VIDEO STATEMENT; NEW TRIAL ORDERED ON THE FELONY MURDER AND CRIMINAL POSSESSION OF A WEAPON COUNTS (FOURTH DEPT).

The Fourth Department, reversing defendant’s convictions, dismissing the robbery counts, and ordering a new trial on the murder and criminal possession of a weapon counts, in a full-fledged opinion by Justice Troutman, determined: (1) conviction of felony murder based upon a confession requires only corroboration of the murder, not the underlying felony (robbery here); (2) the convictions on the two robbery counts were against the weight of the evidence; (3) the judge did not conduct the required “minimal inquiry” when defendant made specific factual complaints about his counsel and asked for new counsel–the error was not cured by the appointment of new counsel right before trial; and (4) defendant’s counsel were ineffective because defendant’s video statement was not redacted to remove reference to defendant’s history of incarceration. The legal discussions are too detailed to fairly summarize here. The facts are:

On October 14, 2013, the victim stumbled home, a fatal knife wound in his back. He was pronounced dead that evening. Two days later, the police interviewed defendant, who provided a video-recorded statement. Defendant admitted that, on the evening of the crime, he was on South Salina Street in the City of Syracuse with three other young men—a cousin of his, a juvenile, and Tony Comer, Jr.—when the victim approached them for the purpose of buying drugs. Comer used the promise of drugs to lure the victim into a cut in the roadway and steal his wallet. When Comer and the victim came out of the cut, the victim was shirtless. Comer was smiling, holding the victim’s torn, white T-shirt. The victim left, shouting that he would come back with a gun and start shooting. Comer told the others that the victim still had $10 on his person, and the juvenile stated that he wanted the victim’s last $10. About 10 or 15 minutes later, the victim returned wearing a sweatshirt, looking for his wallet. Defendant, his cousin, and the juvenile fought the victim. Defendant admitted that, by fighting the victim, he was helping the juvenile to acquire the victim’s last $10 and that, during the fight, defendant stabbed the victim once in the back using a knife that he had concealed in his sleeve. People v Stackhouse, 2021 NY Slip Op 01883, Fourth Dept 3-26-21

 

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