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ALLOCUTION CAST DOUBT ABOUT GUILT IN THIS JUVENILE DELINQUENCY PROCEEDING, AN EXCEPTION TO THE PRESERVATION REQUIREMENT FOR APPEAL (SECOND DEPT).

The Second Department, reversing Family Court, determined that the plea allocution was defective in this juvenile delinquency proceeding. The allocution did not support the elements of the charged offense (grand larceny fourth degree if committed by an adult) and the juvenile’s foster care planner was not questioned about the offense, a defect which cannot be waived. Although no motion to withdraw was made, the allocution cast significant doubt about guilt which constitutes an exception to the the preservation requirement for appeal:

The appellant did not move to withdraw his admission on the grounds raised on appeal … . However, this is one of the ” rare case[s] . . . where the [appellant’s] recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the [appellant’s] guilt,’ [which] fall[s] into the narrow exception to the preservation requirement”… . In addition, the appellant was not required to preserve his contention that the Family Court erred in failing to obtain an allocution from the foster care case planner, since the statutory requirement of such an allocution may not be waived … . * * *

The Family Court did not elicit any additional details concerning the incident in order to clarify how the appellant came to be in possession of the $5 such that it could be concluded that he took it from the boy’s person within the meaning of Penal Law § 155.30(5). Thus, the court “did not elicit a sufficient factual basis to support [the appellant’s] admission'” … .

In addition, the appellant’s admission was defective since his foster care case planner was present, but the Family Court failed to ascertain through allocution of the foster care case planner, as a person legally responsible for the appellant’s care, “that (a) [the appellant] committed the act or acts to which he [was] entering an admission, (b) he [was] voluntarily waiving his right to a fact-finding hearing, and (c) he [was] aware of the possible specific dispositional orders” … . Matter of Richard S., 2019 NY Slip Op 00130, Second Dept 1-9-19

 

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ALTHOUGH SUPREME COURT DENIED DEFENDANT’S MOTION TO SUPPRESS A GUN FOUND IN A VEHICLE, THE COURT DID NOT ARTICULATE THE REASON FOR THE DENIAL, THE SECOND DEPT DID NOT THEREFORE HAVE THE POWER TO REVIEW THE ISSUE, MATTER SENT BACK SO SUPREME COURT CAN ARTICULATE ITS REASONING (SECOND DEPT).

The Second Department remitted the matter to Supreme Court for the basis of its ruling on a suppression motion:

This Court is statutorily limited to reviewing errors or defects that “may have adversely affected the appellant” (CPL 470.15[1]), and thus has no power “to review issues either decided in an appellant’s favor, or not ruled upon, by the trial court”… . The Court of Appeals has observed that, once the Appellate Division has rejected a trial court’s ruling on a particular issue, it may not proceed to consider other issues that might provide a basis for affirmance if they were not determined adversely to the appellant… .

Here, the defendant contends that the Supreme Court incorrectly denied that branch of his omnibus motion which was to suppress the gun, arguing that the inevitable discovery and search incident to a lawful arrest exceptions did not apply. The People contend, as they did before the Supreme Court, that the automobile exception applies. However, the court did not set forth the basis for its denial of the branch of the defendant’s motion which was to suppress the gun. Furthermore, on this record, we cannot determine the unarticulated predicate for the court’s evidentiary ruling …  Therefore, in order to avoid exceeding our statutory authority pursuant to CPL 470.15(1), we hold the appeal in abeyance and remit the matter to the Supreme Court, Queens County, for a new determination of that branch of the defendant’s omnibus motion which was to suppress the gun. People v Thomas, 2018 NY Slip Op 08962, Second Dept 12-26-18

 

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DETECTIVE’S TESTIMONY INDICATING DEFENDANT WAS IDENTIFIED IN A LINEUP IDENTIFICATION PROCEDURE CONSTITUTED INADMISSIBLE BOLSTERING, ALTHOUGH THIS WAS A ONE WITNESS IDENTIFICATION CASE, THE EVIDENCE WAS OVERWHELMING AND THE ERROR WAS DEEMED HARMLESS (SECOND DEPT).

The Second Department, reviewing the unpreserved issue in the interest of justice, determined that the detective’s testimony indicated defendant had been identified in a lineup was inadmissible bolstering. The error was reviewed in the interest of justice. In light of the overwhelming evidence, however, the error was deemed harmless:

We conclude that the detective’s testimony that the defendant was arrested “[a]fter the lineup was conducted” could have led the jury to believe that the police were induced to take action as a result of the lineup identification, and therefore constituted improper implicit bolstering of the witness’s identification testimony … .

… “Harmless error analysis proceeds in two stages” … . First, “unless the proof of the defendant’s guilt, without reference to the error, is overwhelming, there is no occasion for consideration of any doctrine of harmless error” … . Second, for a nonconstitutional error to be harmless the appellate court must conclude “that there is [no] significant probability . . . in the particular case that the jury would have acquitted the defendant had it not been for the error or errors which occurred”… .

In analyzing the effect of a bolstering error, the Court of Appeals has stated that “[t]he standard of harmlessness  … is whether the evidence of identity is so strong that there is no substantial issue on the point'”… . In the context of a case involving an identification by a single witness, the Court of Appeals has concluded that a bolstering error was harmless in light of, among other things, the “unusually credit-worthy” nature of the witness’s identification … .

Here, although the only direct evidence connecting the defendant to the commission of the crimes charged was the identification testimony of a single witness, the evidence of the defendant’s guilt, without reference to the error, was overwhelming … . People v Holmes, 2018 NY Slip Op 08954, Second Dept 12-26-18

 

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RESPONSE TO A JURY NOTE MAY HAVE MISLED THE JURY TO CONCLUDE THEY COULD MAKE THEIR OWN LAY JUDGMENT, AS OPPOSED TO RELYING ON EXPERT OPINION, ABOUT WHETHER DEFENDANT SEX OFFENDER SUFFERED FROM A MENTAL ABNORMALITY IN THIS CIVIL MANAGEMENT PROCEEDING, ISSUE REVIEWED ON APPEAL IN THE INTEREST OF JUSTICE, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Duffy, over a dissent, reversed the finding that defendant sex offender (Timothy R.) suffers from a mental abnormality and requires civil commitment and ordered a new trial. The jury sent out a note asking whether they must agree with the diagnosis of one of the experts to find defendant has a mental abnormality. The court, over defendant’s counsel’s objection, answered “no.” On appeal defendant argued that the jury was effectively told it could ignore the experts and come to their own judgment on the mental abnormality issue. Although that specific argument was not made below, and therefore was not preserved, the Second Department reviewed it in the interest of justice and held that the jury would have to agree with an expert’s diagnosis to find defendant suffered from a mental abnormality:

… [C]ontrary to the Supreme Court’s response to the jury note, in order to conclude that Timothy R. has a mental abnormality, the jury was required to accept expert testimony as to at least one diagnosis that meets the legal predicate for mental abnormality. When the court answered the note in the negative and reiterated to the jury the general instruction as to accepting or rejecting all or some of an expert’s testimony as it sees fit … , the jury could have been misled into relying solely upon its own lay opinion or so much of the expert testimony as relied upon nonpredicate diagnoses, without regard to the expert testimony, that Timothy R. has a congenital or acquired condition, disease, or disorder … . Matter of State of New York v Timothy R., 2018 NY Slip Op 08940, Second Dept 12-26-18

 

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THE AFORD PLEA WAS NOT SUPPORTED BY STRONG EVIDENCE OF DEFENDANT’S INTENT TO COMMIT GRAND LARCENY, THE PLEA WAS VACATED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department vacated defendant’s Alford plea finding that the record lacked the requisite strong evidence of actual guilt. The defendant and two codefendants were seen by a security guard heading toward the exit of a store with unpaid merchandise in a cart. They abandoned the merchandise near the exit, got in a car, and led the police on a high speed chase resulting in two accidents and injury to a police officer. The Alford plea issue was not preserved but the Fourth Department reviewed it in the interest of justice. The Fourth Department found the evidence of intent to commit grand larceny lacking:

We agree with defendant, however, that County Court erred in accepting his Alford plea because the record lacks the requisite strong evidence of his actual guilt … . Although defendant failed to preserve that contention for our review by moving to withdraw his plea or to vacate the judgment of conviction … , and this case does not fall within the rare exception to the preservation requirement set forth in People v Lopez (71 NY2d 662, 666 [1988]…), we exercise our power to review defendant’s unpreserved contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]…).

The record, which includes sworn grand jury testimony, sufficiently establishes that defendant “exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner’s continued rights” … , and that the value of such property exceeded one thousand dollars… . We conclude, however, that the record lacks strong evidence that defendant acted with the intent to deprive the owner of the property or to appropriate the property to himself or to a third person … . Thus, inasmuch as the record lacks strong evidence that defendant acted with the intent to commit grand larceny in the fourth degree, the record also lacks strong evidence that defendant caused injury to a person in the course of and in furtherance of the commission or attempted commission of that crime or during the immediate flight therefrom … . People v Johnson, 2018 NY Slip Op 08802, Fourth Dept 12-21-18

 

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LEGAL SENTENCE FOR A PERSISTENT FELONY OFFENDER DRASTICALLY REDUCED IN THE INTEREST OF JUSTICE PURSUANT TO A MOTION FOR A WRIT OF CORAM NOBIS BASED UPON APPELLATE COUNSEL’S FAILURE TO CONTEND THE SENTENCING COURT ABUSED ITS DISCRETION (FOURTH DEPT).

The Fourth Department drastically reduced defendant’s sentence pursuant to a motion for a writ of coram nobis based on appellate counsel’s failure to to contend that the sentencing court abused its discretion in finding defendant to be a persistent felony contender. The Fourth Department found that the sentencing court  was not erroneous as a matter of law because it did not act arbitrarily or irrationally. However, the Fourth Department noted that it has the authority to vacate a harsh or severe persistent felony offender finding pursuant to Criminal Procedure Law (CPL) 470.20 (6) and did so. Defendant’s 15 to life sentence was reduced to an aggregate sentence of 5 1/2 to 11:

Although defendant has a lengthy criminal history, almost all of his offenses stem from him stealing from stores to get money to support his long-standing drug habit. It does not appear from the presentence report that defendant has ever inflicted violence on anyone, and he certainly did not physically harm anyone in this case.

We note that the People never requested that defendant be adjudicated a persistent felony offender; instead, the court sua sponte ordered the persistent felony offender hearing. As noted, the People, in a pretrial plea bargain, offered defendant a sentence of concurrent indeterminate terms of incarceration of 2 to 4 years. Moreover, the judge who initially handled this case transferred it to Drug Treatment Court, which rejected defendant due to his extended period of sobriety—he had been in jail for more than a year at the time awaiting trial. Defendant thus went from having his case transferred to Drug Treatment Court, where successful completion may have resulted in reduction of the felony charges to misdemeanors, to being sentenced to 20 years to life, on the same charges [reduced to 15 to life on a prior appeal]. Such a disparity between the plea offer and the ultimate sentence militates in favor of a sentence reduction, especially for a nonviolent offender such as defendant. People v Ellison, 2018 NY Slip Op 08833, Fourth Dept 12-21-18

 

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ALTHOUGH THE PROSECUTOR WAS GUILTY OF SERIOUS MISCONDUCT, DEFENDANT DID NOT OBJECT TO THE PROSECUTOR’S REMARKS AND REVERSAL IN THE INTEREST OF JUSTICE WAS NOT WARRANTED, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department determined the prosecutor had exceeded the bounds of the propriety but the prosecutorial misconduct, which was not preserved for appeal by objection, did not warrant reversal. Two dissenting justices argued the misconduct warranted reversal:

We agree with defendant, however, that the prosecutor exceeded the bounds of propriety by cross-examining a defense witness regarding an uncharged crime that defendant allegedly committed and by placing his own credibility in issue while doing so. “A prosecutor may not refer to matters not in evidence or call upon the jury to draw conclusions that cannot fairly be inferred from the evidence” … and, in this case, the prosecutor strayed outside ” the four corners of the evidence’ ” when he implied that defendant committed different crimes … . Nevertheless, reversal is unwarranted where a prosecutor’s error has not substantially prejudiced a defendant’s trial … and, although the dissent is correct that we have previously admonished this prosecutor, the instant trial occurred before that admonition. Therefore, although we strongly condemn the prosecutor’s conduct during cross-examination, we conclude that it does not warrant reversal here … .

From the Dissent: We agree with defendant that the prosecutor caused him substantial prejudice during the cross-examination of a defense witness. ” It is fundamental that evidence concerning a defendant’s uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate that the defendant was predisposed to commit the crime charged’ ” … . …

We further agree with defendant that remarks in the prosecutor’s summation were inflammatory and prejudicial. The prosecutor referred to defendant’s witnesses as “liars,” compounding the prejudicial effect of his improper cross-examination … . More egregiously, the prosecutor referred to defendant as a “monster” four times. People v Fick, 2018 NY Slip Op 08788, Fourth Dept 12-21-18

 

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THE WORKERS’ COMPENSATION BOARD DID NOT PROVIDE AN EXPLANATION FOR DISQUALIFYING CLAIMANT FROM FUTURE WAGE REPLACEMENT BENEFITS, MATTER REMITTED SO THAT ASPECT OF THE PENALTY CAN BE REVIEWED ON APPEAL (THIRD DEPT).

The Third Department, remitting the matter to the Workers’ Compensation Board, determined the Board must provide some explanation of the discretionary sanction against claimant disqualifying him from future benefits. The Board had found that claimant misrepresented his physical condition, based upon video surveillance evidence. The Third Department held there was sufficient evidence to support the Board’s finding on the misrepresentation claim before it, but an explanation for prohibiting future claims was required before that aspect of the penalty could be reviewed on appeal:

Claimant also challenges the Board’s imposition of the discretionary sanction disqualifying him from receiving future wage replacement benefits. By not providing any reason for its imposition of this discretionary penalty, the Board failed to satisfy its obligation to “provide some basis for appellate review” … . Accordingly, the matter must be remitted so that the Board can fulfill its obligation and “provide some explanation for its determination in this regard” … . Matter of Papadakis v Fresh Meadow Power NE LLC, 2018 NY Slip Op 08728, Third Dept 12-29-18

 

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NOTICE OF APPEARANCE FILED BY DEFENDANT’S ATTORNEY WAIVED ANY SUBSEQUENT OBJECTION TO PERSONAL JURISDICTION IN THIS FORECLOSURE ACTION, ISSUE HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT).

The Second Department, reversing Supreme Court on a ground not raised below, determined that defendant’s attorney’s notice of appearance waived any objection to personal jurisdiction over defendant:

“The filing of a notice of appearance in an action by a party’s counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction” … . Here, in November 2014, the defendant’s attorney appeared in the action on her behalf by filing a notice of appearance dated October 31, 2014, and did not move to dismiss the complaint on the ground of lack of personal jurisdiction at that time, or assert lack of personal jurisdiction in a responsive pleading… . The defendant did not move to dismiss the complaint until September 2015, 10 months after filing a notice of appearance. Under those circumstances, the defendant waived any claim that the Supreme Court lacked personal jurisdiction over her in this action … .

Although the plaintiff raises this issue for the first time on appeal, it involves a question of law that appears on the face of the record, and could not have been avoided if brought to the attention of the Supreme Court … . Deutsche Bank Natl. Trust Co. v Vu, 2018 NY Slip Op 08629, Second Dept 12-19-18

 

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THE PROOF REQUIREMENTS FOR DEPRAVED INDIFFERENCE MURDER CHANGED WHEN THE COURT OF APPEALS DECIDED PEOPLE V PAYNE, BEFORE DEFENDANT’S CONVICTION BECAME FINAL, SUPREME COURT SHOULD HAVE HEARD DEFENDANT’S MOTION TO VACATE THE CONVICTION AND SHOULD HAVE REVERSED THE DEPRAVED INDIFFERENCE MURDER CONVICTION AND DISMISSED THE COUNT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) the law on the proof requirements for depraved indifference murder changed when People v Payne (3 NY2d 266) was decided, not later when People v Feingold (7 NY3d 288) was decided; (2) defendant’s judgment of conviction did not become final until after People v Payne was decided; (3) therefore defendant’s motion to vacate his judgment of conviction should have been heard on the merits; and (4) the evidence of depraved indifference murder was not sufficient to support the verdict:

As noted, the motion court determined that the law regarding depraved indifference murder did not change until People v Feingold, and that the defendant is therefore not entitled to any benefit under the new law … . However, in People v Wilkens (126 AD3d 1293) and People v Baptiste (51 AD3d 184), the [3rd] and [4th] Departments of the Appellate Division each held that the law changed on October 19, 2004, when the Court of Appeals decided People v Payne. We agree with the [3rd] and [4th] Departments that People v Payne signaled the change in the law of depraved indifference murder. …

Under the unique circumstances of this case, where the cases here relied upon … had not yet been decided at the time that the direct appeal was perfected, we find that the failure to challenge the legal sufficiency of the evidence on direct appeal was justified. …

… [T]he trial evidence was not legally sufficient to support a verdict of guilt of depraved indifference murder … . People v Hernandez, 2018 NY Slip Op 08690, Second Dept 12-19-18

 

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