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DEFENDANT PLED GUILTY TO POSSESSION OF A GRAVITY KNIFE WHICH WAS DE-CRIMINALIZED SHORTLY THEREAFTER; CONVICTION REVERSED IN THE INTEREST OF JUSTICE WITH THE PEOPLE’S CONSENT (SECOND DEPT).

The Second Department, in the interest of justice and as a matter of discretion, with the People’s consent, reversed defendant’s conviction of possession of a gravity knife, which was de-criminalized shortly after the conviction:

On November 29, 2018, during his plea allocution to attempted criminal possession of a weapon in the third degree (see Penal Law §§ 110.00, 265.02[1]), the defendant admitted that on or about January 9, 2018, he attempted to possess a gravity knife. On January 31, 2019, pursuant to his negotiated plea agreement, the defendant was sentenced to an indeterminate term of imprisonment of 1½ to 3 years.

The defendant contends that the judgment of conviction should be reversed because, inter alia, shortly after his conviction, Penal Law § 265.01(1) was amended to decriminalize the simple possession of a gravity knife. The People, in the exercise of their broad prosecutorial discretion, agree that the judgment should be vacated and the indictment dismissed. Even though the statute decriminalizing the simple possession of a gravity knife did not take effect until May 30, 2019 (see L 2019, ch 34, § 1), under the circumstances of this case, we vacate the judgment and dismiss the indictment, as a matter of discretion in the exercise of our interest of justice jurisdiction … . People v Merrill, 2020 NY Slip Op 05936, Second Dept 10-21-20

 

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DEFENDANT’S WAIVER OF APPEAL WAS INVALID; DEFENDANT’S ONE-YEAR SENTENCE, WHICH HAD ALREADY BEEN SERVED, WAS REDUCED BY ONE DAY IN PART TO ADDRESS THE IMMIGRATION CONSEQUENCES OF A ONE-YEAR SENTENCE (SECOND DEPT).

The Second Department, finding the waiver of appeal invalid, reduced defendant’s sentence by one day based in part on the immigration consequences of a one-year sentences:

The defendant’s purported waiver of his right to appeal was invalid because the Supreme Court’s colloquy mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal, and failed to inform the defendant that appellate review remained available for certain issues … . Further, the written waiver form signed by the defendant was insufficient to overcome the deficiencies in the court’s explanation of the waiver of the right to appeal, since it did not contain language clarifying that appellate review remained available for certain issues … . Thus, the purported waiver does not preclude this Court from reviewing the issue of whether the defendant’s sentence was excessive … .

Although the defendant has served his sentence, the question of whether the sentence imposed should be reduced is not academic, since the sentence may have potential immigration consequences … . People v Joseph, 2020 NY Slip Op 05928, Second Dept 10-21-20

 

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APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE A MODE OF PROCEEDINGS ERROR CONCERNING A JURY NOTE ON APPEAL; WRIT OF CORAM NOBIS GRANTED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, granting the writ of coram nobis and ordering a new trial, determined defendant’s appellate counsel was ineffective in failing to raise a mode of proceedings error on appeal. The was no evidence on the record that the trial judge notified counsel of a substantive note from the jury:

… [O]n the afternoon of the first day of jury deliberations, the Supreme Court received a jury note stating “11 of the 12 jurors find the defendant guilty on all counts. One juror after lengthy discussion still has a reasonable doubt on 9 counts. Juror feels we cannot change her/his mind no matter what we say or do. We need direction.” The record does not indicate that the court read the contents of the note to the parties, discussed its contents with counsel, or allowed trial counsel an opportunity to propose a response for the jury. * * *

The failure to provide counsel with meaningful notice of a substantive jury note requires reversal, regardless of whether the Supreme Court provided the jurors with a meaningful response to their note … . In short, in the absence of record evidence that the court complied with its core responsibilities under CPL § 310.30, a mode of proceedings error occurred requiring reversal … . People v Grant, 2020 NY Slip Op 05922, Second Dept 10-21-20

 

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THE MANSLAUGHTER AND CRIMINALLY NEGLIGENT HOMICIDE CONVICTIONS STEMMING FROM A FATAL TRAFFIC ACCIDENT WERE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (SECOND DEPT).

The Second Department, reversing the manslaughter and criminally negligence homicide convictions stemming from a traffic accident, determined the evidence was legally insufficient. There was evidence provided by another driver (Duke) that defendant was driving above the speed limit before the collision (which Duke did not witness), but nothing else. Two passengers and an unborn child died in the collision:

… [T]he evidence was legally insufficient to establish “the kind of seriously condemnatory behavior” in addition to speeding that is necessary to “transform ‘speeding’ into ‘dangerous speeding'” … . While Duke testified that the defendant’s vehicle “swerv[ed] around” her into the left lane to pass, she did not testify that the defendant’s vehicle came close to hitting her vehicle, that she had to engage in any evasive measures to avoid an accident, that there were any vehicles in the left lane when the defendant moved into it, or that the defendant swerved back in front of her after passing her … . Rather, Duke testified that after the defendant moved into the left lane, she waited for him to pass before getting into the left lane behind him. Moreover, Duke testified that the defendant was driving at a slower rate while moving into the left lane to pass her before speeding up after he moved into the left lane, and that the defendant obeyed a red traffic signal, pausing and not again accelerating until the traffic signal “turned green.” Duke also stated that there were “no more lights” between that traffic signal and the location of the accident, and thus, there is no indication that the defendant disregarded any red traffic signals. Further, the People presented no evidence that the defendant proceeded in disregard of a warning to slow down or of a dangerous driving condition … . Evidence was presented that Kent Avenue, which is partly situated in an industrial area, is not a busy road and generally has “very few cars” on it around the time when the accident occurred. Thus, the People failed to establish that the defendant engaged in “some additional affirmative act aside from driving faster than the posted speed limit,” as required to support a finding of recklessness or criminal negligence … . People v Acevedo, 2020 NY Slip Op 05909, Second Dept 10-21-20

 

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MISDEMEANOR COMPLAINTS AND INFORMATIONS CANNOT BE CORRECTED BY AMENDMENT; RATHER A SUPERSEDING INSTRUMENT SUPPORTED BY A SWORN STATEMENT WITH THE CORRECT FACTS MUST BE FILED; THE ISSUE WAS NOT WAIVED BY DEFENDANT’S GUILTY PLEA TO THE AMENDED INSTRUMENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the Appellate Term and overruling precedent from 1954, over a two-judge dissent and an additional dissent, determined the misdemeanor complaint and the information to which the complaint was converted should not have been amended to correct wrong dates. The Criminal Procedure Law does not include a provision allowing amendment of misdemeanor complaints and informations. The proper procedure is to file a superseding accusatory instrument with a sworn statement supporting the correct facts. This appellate issue was not waived by defendant’s guilty plea:

The text, structure, and legislative history of the CPL, as well as a straightforward application of our canons of statutory construction, all demonstrate that the CPL does not permit the kinds of factual amendments once countenanced by [People v Easton (307 NY 336 [1954])]. The CPL does provide its own pathway for correcting factual errors in complaints and informations, through the filing of a superseding accusatory instrument (CPL 100.50), not through a prosecutor’s amendment of facts averred by someone else. We recognize that the October 25, 2015 date in the accusatory instrument here cannot possibly be correct and that the correct date can be inferred from information outside the four corners of the accusatory instrument. However, in evaluating the sufficiency of an accusatory instrument we do not look beyond its four corners (including supporting declarations appended thereto) … . It is the People’s responsibility to obtain a sworn statement with the correct factual allegations and proceed on a superseding instrument. People v Hardy, 2020 NY Slip Op 05803, CtApp 10-15-20

 

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EVIDENCE OF PHYSICAL INJURY LEGALLY INSUFFICIENT, ROBBERY AND BURGLARY FIRST CONVICTIONS REDUCED (SECOND DEPT). ​

The Second Department, reducing defendants’ convictions, determined the evidence of physical injury was legally insufficient:

Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). The complainant stated that her injuries consisted of a laceration on her neck from the defendant pulling off her necklace and scratches on her wrist from the defendant pulling off her bracelets. She did not go to the hospital and testified that her neck was sore and her wrist felt a little sore and afterwards she had pain in her neck and wrist, although she did not specify when the pain began or as to its duration. The officer who responded to the scene testified that the complainant had a scratch on her neck. Under these circumstances, there was insufficient evidence from which a jury could infer that the complainant suffered substantial pain or impairment of her physical condition … . Accordingly, the defendant’s convictions of burglary in the first degree and robbery in the second degree should be reduced to burglary in the second degree and robbery in the third degree, respectively, which lesser crimes were proven at trial … . People v Smith, 2020 NY Slip Op 05782, Second Dept 10-14-20

 

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THE 2ND DEPARTMENT CRITICIZED THE PIECEMEAL DECISION-MAKING BY SUPREME COURT IN THIS COMPLEX DIVORCE PROCEEDING WHICH RESULTED IN AN INADEQUATE RECORD ON APPEAL; HOWEVER THE 2ND DEPARTMENT ADDRESSED MANY OF THE FACTUAL ISSUES IN A DETAILED OPINION WORTH READING BUT IMPOSSIBLE TO SUMMARIZE HERE (SECOND DEPT).

The Second Department, in a detailed, fact-specific opinion by Justice Scheinkman, criticized the piecemeal approach to the decisions made by Supreme Court in this divorce proceeding, which resulted in an inadequate record for the appellate court. The Second Department took it upon itself to resolve the factual issues which could be gleaned from the record. The factual discussion is too detailed to fairly summarize here. With respect to the piecemeal decision-making and the inadequate record on appeal the court wrote:

These appeals and cross appeal, as well as the two other appeals in the same case also decided today, are a graphic illustration of the prolixity that may ensue when a complicated matrimonial case is cabined into constituent parts which are heard and decided piecemeal by the Supreme Court. The court bifurcated the trial into phases but, in the end, only conducted one of the two promised phases of the trial. Because some of the issues did not lend themselves to a neat division, the issues, and the court’s seriatim determination of them, overlap. As a consequence of the incremental approach to the serial determination of the significant issues raised, which were followed by sequential appeals and cross appeals from the various orders and the final judgment, which appeals are prosecuted on voluminous appendices and supplemental appendices, this Court has not been provided with either a clear, comprehensible, and accessible record or a unified, comprehensive analysis by each party as to what determinations were made by the Supreme Court and which of those decisions each party accepts or challenges. Moreover, with respect to equitable distribution of the parties’ substantial investment assets, the judgment of divorce entered by the court merely incorporated by reference its prior decisions, without specifying what is actually ordered, adjudged, and decreed, except that it set forth certain deviations from those prior decisions. Since the decisions conflict with each other in important respects, it is unclear what the court actually directed as to the equitable distribution of major and valuable assets. Kaufman v Kaufman, 2020 NY Slip Op 05732, Second Dept 10-14-20

 

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THE ELEMENT OF THE UNLAWFUL POSSESSION OF AMMUNITION STATUTE WHICH REQUIRES PROOF THE DEFENDANT WAS NOT AUTHORIZED TO POSSESS A PISTOL OR REVOLVER IS AN EXCEPTION, NOT A PROVISO; CONVICTION VACATED IN THE INTEREST OF JUSTICE DESPITE LACK OF PRESERVATION (FIRST DEPT).

The First Department, vacating defendant’s conviction of unlawful possession of ammunition pursuant to NYC Administrative Code 10-131[i][3], determined the language of the statute required that the People prove defendant was not authorized to possess a pistol or a revolver, which was not established by the evidence:

… [T]he language of the ammunition possession statute (Administrative Code § 10-131[i][3]) concerning authorization to possess a pistol or revolver within the City is an exception, not a proviso (Tatis, 170 AD3d at 48). Therefore, the People were required to prove, as an element of the offense, that defendant was not authorized to possess a pistol or revolver, regardless of whether defendant raised the issue in the first instance (id.). The evidence at trial did not establish that fact. Accordingly, we exercise our interest of justice jurisdiction to vacate that conviction. People v Anonymous, 2020 NY Slip Op 05689, First Dept 10-13-20

 

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ALTHOUGH THE INCONSISTENT VERDICT ARGUMENT WAS NOT PRESERVED, THE FAILURE TO AWARD DAMAGES FOR FUTURE PAIN AND SUFFERING, IN THE FACE OF AWARDING DAMAGES FOR PAST PAIN AND SUFFERING AND FUTURE MEDICAL EXPENSES, REQUIRED A NEW TRIAL ON THAT ISSUE (FIRST DEPT).

The First Department, setting aside the verdict for future damages and ordering a new trial on that issue, determined the awards for past pain and suffering and future medical expenses rendered the failure to award damages for future pain and suffering a material deviation from reasonable compensation:

Plaintiff failed to preserve for appellate review his claim that the verdict was inconsistent because the claim was raised after the jury had been discharged. However, where the jury verdict awards plaintiff damages for past pain and suffering and future medical expenses, but declines to award damages for future pain and suffering, the verdict on future pain and suffering is contrary to a fair interpretation of the evidence and constitutes a material deviation from what would be reasonable compensation … . Paucay v D.P. Group Gen. Contrs./Devs., Inc., 2020 NY Slip Op 05611, First Dept 10-8-20

 

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ROBBERY AND ASSAULT SECOND CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF THE WEAKNESS OF THE EVIDENCE OF PHYSICAL INJURY (SECOND DEPT).

The Second Department, reducing defendant’s convictions, determined the robbery and assault second degree convictions were against the weight of the evidence because of the weakness of the evidence of physical injury. The convictions were reduced to robbery and assault third degree:

“Physical injury” is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). …

Here, the victim gave testimony about an incident in which the defendant attacked her and forcibly stole property from her. During the incident, the defendant pushed the victim down onto a bed, bound her wrists with a coaxial cable, placed the cable around her neck, and placed her in a choke hold with his arm across her throat. After the incident, the victim had an indentation on her wrist where the cord had been tied, her wrist was sore and had redness, and she had a red mark on her neck. She was “pretty numb” at the time and was not experiencing pain. She declined to go to the hospital. A few days later, she had difficulty swallowing and her throat was “kind of sore” for “[j]ust a couple of days.” When she testified before the grand jury, approximately one week after the incident, she was asked if she had any pain or discomfort, and she answered, “just the muscle in my arm.” Under these particular facts, the weight of the evidence does not support a finding that the victim suffered impairment of physical condition or substantial pain. Accordingly, we reduce the conviction of robbery in the second degree to robbery in the third degree … . People v Tactikos, 2020 NY Slip Op 05535, Second Dept 10-7-20

 

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