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DEFENSE COUNSEL INEFFECTIVE FOR CONCEDING DEFENDANT SUFFERS FROM A DANGEROUS MENTAL DISORDER; COUNTY COURT SHOULD HAVE HELD THE MANDATORY STATUTORY HEARING; APPEAL IS NOT ACADEMIC BECAUSE OF LASTING CONSEQUENCES OF THE ‘DANGEROUS MENTAL DISORDER’ FINDING (SECOND DEPT).

The Second Department, reversing County Court, determined defendant did not receive effective assistance of counsel because the attorney conceded defendant suffered from a dangerous mental disorder. County Court should have held the mandatory statutory hearing. The appeal is not academic because of the lasting effect of the finding defendant suffers from a dangerous mental disorder:

Although the commitment order has expired by its own terms, the appeal is not academic because the County Court’s determination that the defendant has a dangerous mental disorder has lasting consequences that will affect all future proceedings regarding his commitment and release … .

The initial hearing under CPL 330.20(6) is a critical stage of the proceedings during which the defendant is entitled to the effective assistance of counsel … . Here, there was simply no legitimate strategy that could have warranted defense counsel’s concession that the defendant suffered from a dangerous mental disorder, implicitly consenting to the defendant’s confinement in a secure facility … . As defense counsel failed to provide meaningful representation, the defendant was deprived of the effective assistance of counsel … .

Neither the defendant’s nor defense counsel’s concession to a finding of dangerous mental disorder can relieve the County Court from the obligation to provide the initial statutory hearing, which is mandatory (see CPL 330.20[6] … ). People v Juan R., 2020 NY Slip Op 01190, Second Dept 2-19-20

 

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‘ANDERS’ BRIEF DEFICIENT; NEW COUNSEL ASSIGNED FOR THE APPEAL (SECOND DEPT).

The Second Department determined the “Anders” appellate brief submitted by counsel was deficient and assigned new counsel for the appeal:

The brief submitted by the appellant’s counsel pursuant to Anders v California (386 US 738) is deficient because it fails to contain an adequate statement of facts and fails to analyze potential appellate issues or highlight facts in the record that might arguably support the appeal … . The statement of facts does not review, in any detail, the Supreme Court’s advisements to the appellant regarding the rights he was waiving, the inquiries made of the appellant to ensure that the admission was knowingly and voluntarily entered, or the appellant’s responses to any of those advisements and inquiries … . Since the brief does not demonstrate that assigned counsel fulfilled his obligations under Anders v California, we must assign new counsel to represent the appellant … . People v Morales, 2020 NY Slip Op 01188, Second Dept 2-19-20

Similar issues and result in People v Santos, 2020 NY Slip Op 01193, Second Dept 2-19-20

 

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SCHOOL-GROUNDS-PROXIMITY-RESIDENCE PROHIBITION APPLIED TO PETITIONER, A LEVEL THREE SEX OFFENDER, EVEN THOUGH THE OFFENSE FOR WHICH HE WAS BEING PAROLED WAS BURGLARY; SECOND DEPARTMENT DISAGREED WITH THE RESOLUTION OF THIS ISSUE BY THE THIRD AND FOURTH DEPARTMENTS; APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court and disagreeing with the Third and Fourth Departments, determined Executive Law 259-c (14), which prohibits sex offenders from entering school grounds, applied to petitioner in this habeas corpus proceeding. Petitioner had been designated a level three sex offender and was subsequently arrested and incarcerated for burglary. He was not released on parole for the burglary conviction when his sentence was complete because housing which complied with the school-grounds condition could not be found. Although the habeas corpus petition was moot because defendant had been released at the time of the appeal, the exception to the mootness doctrine allowed appellate review:

Executive Law § 259-c(14) provides, in relevant part, that “where a person serving a sentence for an offense defined in [Penal Law articles 130, 135, or 263, or Penal Law §§ 255.25, 255.26, or 255.27] and the victim of such offense was under the age of [18] at the time of such offense or such person has been designated a level three sex offender pursuant to [Correction Law § 168-l(6)], is released on parole or conditionally released pursuant to [Executive Law § 259-c(1) or (2)], the [Board of Parole] shall require, as a mandatory condition of such release, that such sentenced offender shall refrain from knowingly entering into or upon any school grounds, as that term is defined in [Penal Law § 220.00(14)], . . . while one or more of such persons under the age of [18] are present.”

As a result of its inartful wording and use of the term “such person,” Executive Law § 259-c(14) has been interpreted in opposing fashion by the Appellate Division, Third Department (see People ex rel. Negron v Superintendent Woodbourne Corr. Facility, 170 AD3d 12) and the Appellate Division, Fourth Department (see People ex rel. Garcia v Annucci, 167 AD3d 199). Inasmuch as the statute is amenable to competing interpretations, we agree with the appellants that the language of the statute is ambiguous and should be interpreted with reference to its legislative history and the purpose of the enactment of the 2005 amendment … . The legislative history clearly supports an interpretation that imposes the SARA [Sexual Assault Reform Act]-residency requirement based on either an offender’s conviction of a specifically enumerated offense against an underage victim or the offender’s status as a level three sex offender … . People ex rel. Rosario v Superintendent, Fishkill Corr. Facility, 2020 NY Slip Op 01178, Second Dept 2-19-20

 

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THE APPEAL OF THE DENIAL OF PETITIONER’S REQUEST FOR AN ADJOURNMENT TO OBTAIN COUNSEL WAS NOT MOOT, DESPITE THE FACT THE TRIAL WAS HELD AND COMPLETED IN PETITIONER’S ABSENCE; THE ADJOURNMENT SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Scheinkman, reversing Surrogate’s Court, determined petitioner’s motion for an adjournment to obtain new counsel should have been granted and the appeal of the denial of an adjournment was not moot. The matter was before Surrogate’s Court for an accounting in the estate of Oleg Cassini, who died in 2006. At the time of the request for an adjournment three attorneys had withdrawn from the case. The trial went ahead without the presence of petitioner, Oleg Cassini’s wife Marrianne, and without counsel for petitioner:

An appeal is not moot “[w]here the case presents a live controversy and enduring consequences potentially flow from the order appealed from” … . On the other hand, “[a]n appeal is moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment'” … . Here, enduring consequences flow from the order appealed from since, absent a reversal of the order appealed from, the Surrogate’s Court’s determination after a trial in which Marianne did not participate will bind the parties. * * *

The Surrogate was rightly concerned about the lengthy history of delay in this case, just as we are. However, there was no evident urgency that required the trial to start on July 25, 2016, as opposed to 60 days later, and any prejudice to the objectants could have been readily addressed by appropriate orders dealing with the administration of the estate and its assets. In the overall context of this long-running litigation, an adjournment of 60 days to allow Marianne’s prospective counsel, McKay, to prepare for the trial should have been granted. Indeed, the failure [*6]to grant it has resulted in additional delay and expense in the conclusion of this estate. Given our preference that matters be determined on their merits, and the absence of any indication on this record that Marianne’s motion for an adjournment was made solely for the purpose of delay, the Surrogate’s Court should not have rejected the request out of hand. Matter of Cassini, 2020 NY Slip Op 01056, Second Dept 2-13-20

 

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DEFENDANT MAY NOT APPEAL OR COLLATERALLY ATTACK AN “ILLEGALLY LENIENT” SENTENCE BECAUSE THE SENTENCE DID NOT ADVERSELY AFFECT THE DEFENDANT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined that the defendant may not appeal from an “illegally lenient” sentence because the sentence did not adversely affect the defendant. The defendant was attempting to have prior sentences declared illegal to avoid a subsequent “persistent felony offender” classification. Defendant had used aliases and had been given “illegally lenient” sentences because the sentencing court was unaware of the prior conviction(s):

The Appellate Division [held] that it could not consider the merits of defendant’s appeal because denial of the motion — leaving in place defendant’s illegally lenient sentence — had not “adversely affected” defendant within the meaning of CPL 470.15 … . When a defendant moves to vacate a sentence on the ground that it is illegally lenient, denial of such a motion is not reviewable because any purported “error or defect in the criminal court proceedings” has not “adversely affected” the defendant (CPL 470.15 [1]). Accordingly, we affirm.

Defendant’s criminal history consists of at least four felony convictions over a fifteen-year period. During this time, it appears that he repeatedly attempted to conceal that history, primarily through the use of aliases. To a remarkable degree, though a recidivist, he avoided enhanced punishment required by statute. Instead, he obtained sentences that were “illegally lenient” given his actual status as a predicate felon. However, in 1997, the court, based on the evidence of defendant’s prior convictions, sentenced him to a term of twenty-three years to life in prison as a persistent violent felony offender (see Penal Law § 70.08). Since then, by direct appeal and collateral attack, defendant has tried to overturn the illegally lenient sentences that were previously imposed based on his incomplete criminal history, with the ultimate goal of invalidating his 1997 persistent violent felony offender sentence. People v Francis, 2020 NY Slip Op 00996, CtApp 2-13-20

 

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SUPREME COURT DID NOT RULE ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL, MATTER REMITTED FOR A RULING (FOURTH DEPT).

The Fourth Department, remitting the matter to Supreme Court, noted that Supreme Court did not rule on defendant’s motion for a trial order of dismissal:

Defendant … contends that the evidence is legally insufficient to support the conviction with respect to the weapon possession counts and that the court thus erred in denying his motion for a trial order of dismissal. At the close of the People’s case, defendant moved for a trial order of dismissal on the ground that the evidence was legally insufficient to establish his possession of certain weapons, and the court reserved decision. Defendant renewed his motion at the conclusion of all the evidence, and the court again reserved decision. There is no indication in the record that the court ruled on defendant’s motion. We do 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], rearg denied 93 NY2d 849 [1999]), 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  … . People v Bennett, 2020 NY Slip Op 00957, Fourth Dept 2-7-20

 

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DECISION WHETHER TO ADMIT OR DENY ALLEGATIONS IN A PREDICATE FELONY STATEMENT IS RESERVED TO DEFENDANT PERSONALLY, NOT DEFENSE COUNSEL (FOURTH DEPT).

The Fourth Department noted that the decision whether to admit or deny the allegations in a predicate felony statement is reserved to the defendant personally, not defense counsel:

… [W]hether to admit or controvert the allegations in a predicate felony statement is a “fundamental” decision “comparable to how to plead and whether to waive a jury, take the stand or appeal,” and it is “therefore reserved to the accused” personally … . Thus, the court did not violate defendant’s right to counsel by accepting his personal decision to controvert the allegations in the People’s predicate felony statement notwithstanding defense counsel’s contrary views and advice … . Defendant’s related assertion that defense counsel was ineffective for failing to adequately apprise him of the ramifications of contesting the predicate felony statement is belied by the record … . People v Favors, 2020 NY Slip Op 00968, Fourth Dept 2-7-20

 

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FAILURE TO HOLD A HEARING TO DETERMINE DEFENDANT’S MENTAL CONDITION AFTER TWO PSYCHIATRISTS FOUND DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION WAS REVERSIBLE ERROR; ALTHOUGH THE ERROR WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined it was reversible error to fail to conduct a hearing to determine defendant’s mental condition after defendant had been examined by two psychiatrists who concluded defendant suffered from a dangerous mental condition. The error was not preserved but was reviewed in the interest of justice:

Defendant now appeals, by permission of this Court, from an amended order that, upon the court’s finding that defendant suffered from a dangerous mental disorder, committed him to the custody of the Commissioner of Mental Health for confinement in a secure facility.

… CPL 330.20 (6) provides that, “[a]fter the examination reports are submitted, the court must, within [10] days of the receipt of such reports, conduct an initial hearing to determine the defendant’s present mental condition” … . In this case, however, the court did not conduct an initial hearing. We agree with defendant that, as the People correctly concede, the court’s failure to conduct the requisite initial hearing constitutes reversible error … . Although defendant failed to preserve his contention for our review … , we nevertheless review it in the interest of justice … . People v David T., 2020 NY Slip Op 00964, Fourth Dept 2-7-20

 

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THE COURT, DEFENSE COUNSEL AND THE PROSECUTOR WERE UNDER THE MISCONCEPTION DEFENDANT WAS ELIGIBLE FOR A PAROLE SUPERVISION SENTENCE AT THE TIME DEFENDANT PLED GUILTY; THEREFORE THE MATTER CAN BE CONSIDERED ON APPEAL IN THE ABSENCE OF PRESERVATION; PLEA VACATED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant was not eligible for a parole supervision sentence and the court, defense counsel and the prosecutor mistakenly believed defendant was eligible. Defendant’s guilty plea was based upon the understanding the court would consider such a sentence (which the court ultimately did not impose). Because all parties misunderstood the law, defendant could not be expected to have preserved the error by moving to withdraw his plea and the matter can therefore be considered on appeal:

… [W]e conclude that defendant’s plea should be vacated because “[i]t is impossible to have confidence, on a record like this, that defendant had a clear understanding of what he was doing when he entered his plea” … . In short, we “cannot countenance a conviction that seems to be based on complete confusion by all concerned” … . Where, as here, “the prosecutor, defense counsel and the court all suffered from the same misunderstanding of the [court’s sentencing discretion], it would be unreasonable to conclude that defendant understood it” … . Although the court did not commit to a sentence of parole supervision under CPL 410.91, it erroneously indicated that defendant was eligible for such a sentence and stated that it would consider such a sentence, among all sentencing options, at sentencing—it did not qualify its statement or advise defendant that there was a possibility that he was not eligible for such a sentence … . We therefore reverse the judgment, vacate the plea, and remit the matter to Supreme Court for further proceedings on the superior court information. In light of our determination, we do not reach defendant’s remaining contentions. People v Work, 2020 NY Slip Op 00962, Fourth Dept 2-7-20

 

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SEX TRAFFICKING CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT).

The First Department, reversing the sex trafficking conviction, determined there was insufficient evidence defendant used force or participated in a scheme to compel the alleged victim to engage in prostitution by threat of physical harm. The sex trafficking conviction was deemed to be against the weight of the evidence:

The evidence showed that the alleged victim, her mother, and a third woman, sought to earn more money than they were earning in Florida, that they voluntarily traveled with defendant to New York to earn money as prostitutes, and that defendant left them alone at times in Florida and New York. There was no evidence presented at trial that defendant ever threatened to harm the alleged victim if she failed to begin or continue working as a prostitute. A detective described a call he overheard between defendant and the alleged victim, after she was apprehended, in which defendant was angry because he believed that she did not get money from a client. However, this does not suffice to prove any use of force or a “scheme” to compel her to work as a prostitute. Similarly, although the third woman in the group that came with defendant from Florida testified that she was a “little intimidated” by an argument over money between defendant and another man, this does not establish the required threat of harm, even assuming the alleged victim also saw and heard the argument. People v Hayes, 2020 NY Slip Op 00832, First Dept 2-4-20

 

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