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TRIAL JUDGE’S HANDLING OF JURY NOTES CONSTITUTED A MODE OF PROCEEDINGS ERROR, REVERSAL REQUIRED DESPITE FAILURE TO PRESERVE THE ERROR (SECOND DEPT).

The Second Department, reversing defendant's conviction, determined the trial judge committed a mode of proceedings error in dealing with jury notes. Therefore reversal was required despite the failure to preserve the error:

The defendant correctly contends that the Supreme Court's handling of two jury notes failed to comply with CPL 310.30, in accordance with the procedure outlined in People v O'Rama (78 NY2d 270). “[W]henever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel”… . ” After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses. The court should then ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to any potentially harmful information. Once the jury is returned to the courtroom, the communication should be read in open court'” … . “Where a trial court fails to provide counsel with meaningful notice of the precise content of a substantive juror inquiry, a mode of proceedings error occurs, and reversal is therefore required even in the absence of an objection'” … .

Here, the subject jury notes requested “material evidence” and “Ms. Bernard Testimony read back.” The Supreme Court did not read the contents of either note into the record, but rather apprised counsel of the contents of the notes in general terms. The court then convened the jury, and the testimony of the specified witness was read back.

Although the defendant failed to object to the manner in which the Supreme Court handled these notes, under the circumstances of this case, the court violated People v O'Rama and committed a mode of proceedings error, obviating the need for preservation, by failing to provide the defendant with notice of the “precise contents” of the notes prior to giving its responses … . The jury's requests for “material evidence” and a readback of witness testimony were not mere ministerial inquiries, but rather substantive jury notes, the precise contents of which the court was required to disclose … . Accordingly, the court's failure to provide counsel with meaningful notice of either of these substantive jury notes requires reversal of the judgment and a new trial. People v Wood, 2018 NY Slip Op 06277. Second Dept 9-26-18

CRIMINAL LAW (TRIAL JUDGE'S HANDLING OF JURY NOTES CONSTITUTED A MODE OF PROCEEDINGS ERROR, REVERSAL REQUIRED DESPITE FAILURE TO PRESERVE THE ERROR (SECOND DEPT))/APPEALS (CRIMINAL LAW, TRIAL JUDGE'S HANDLING OF JURY NOTES CONSTITUTED A MODE OF PROCEEDINGS ERROR, REVERSAL REQUIRED DESPITE FAILURE TO PRESERVE THE ERROR (SECOND DEPT))/JURY NOTES (TRIAL JUDGE'S HANDLING OF JURY NOTES CONSTITUTED A MODE OF PROCEEDINGS ERROR, REVERSAL REQUIRED DESPITE FAILURE TO PRESERVE THE ERROR (SECOND DEPT))/MODE OF PROCEEDINGS ERROR (TRIAL JUDGE'S HANDLING OF JURY NOTES CONSTITUTED A MODE OF PROCEEDINGS ERROR, REVERSAL REQUIRED DESPITE FAILURE TO PRESERVE THE ERROR (SECOND DEPT))

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2015 MOTION TO REINSTATE THE APPEAL OF A 1986 CONVICTION DENIED (FIRST DEPT).

The First Department determined defendant's appeal should be dismissed because more than 30 had passed between his conviction and the motion to reinstate the appeal. The defendant had absconded from his 1986 trial and then served a long sentence in North Carolina:

In 1984 defendant absconded during trial, and was tried and convicted in absentia. His attorney filed a notice of appeal, but defendant did nothing to perfect his appeal, which was dismissed in 1998, on the People's motion, for failure to prosecute.

Meanwhile, in 1986, defendant was convicted of serious charges in North Carolina, and he served a lengthy sentence there. Commencing in 2003, nearly 20 years after his conviction, when the New York Department of Correctional Services lodged a detainer in North Carolina based on the instant conviction, defendant filed various pro se motions in connection with his New York conviction. However, defendant did not move to reinstate his appeal until 2015, more than 30 years after his conviction. …

The People seek to dismiss defendant's appeal based on the “failure of timely prosecution or perfection thereof” pursuant to CPL 470.60(1). Where an absconding defendant's appeal remains pending for a long time, whether the appeal should be ultimately be permitted to proceed is “subject to the broad discretion of the Appellate Division” … . In exercising its discretion, this Court may consider factors including whether defendant's flight caused “a significant interference with the operation of [the] appellate process”; whether defendant's absence “so delayed the administration of justice that the People would be prejudiced in locating witnesses and presenting evidence at any retrial should the defendant be successful on appeal”; the length of the defendant's absence; whether the defendant “voluntarily surrendered”; and the merits of the appeal … . People v Williams, 2018 NY Slip Op 06182, First Dept 9-25-18

CRIMINAL LAW (APPEALS, 2015 MOTION TO REINSTATE THE APPEAL OF A 1986 CONVICTION DENIED (FIRST DEPT))/APPEALS (CRIMINAL LAW, 2015 MOTION TO REINSTATE THE APPEAL OF A 1986 CONVICTION DENIED (FIRST DEPT))

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DETECTIVE’S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant's conviction, determined the detective's testimony that the complainant picked the defendant out of a lineup constituted inadmissible bolstering. The issue was reviewed in the interest of justice (error not preserved);

The defendant has not preserved for appellate review his contention that the prosecutor improperly elicited testimony from a detective stating that he arrested the defendant after the defendant was identified in a lineup by the complainant. However, we nevertheless review this contention in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a]…). The detective's testimony implicitly bolstered the complainant's testimony by providing official confirmation of the complainant's identification of the defendant … . A violation of the rule against bolstering may not be overlooked except where the evidence of identity is so strong that there is no serious issue upon that point … . Here, the evidence that the defendant committed the crime was not so overwhelming as to render the error harmless. This error was compounded by improper comments made during the People's summation regarding the complainant's identification of the defendant as the robber. People v Ramirez, 2018 NY Slip Op 06120, Second Dept 9-19-18

CRIMINAL LAW (DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/APPEALS (CRIMINAL LAW, DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/LINEUPS (CRIMINAL LAW, DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/BOLSTERING (CRIMINAL LAW, LINEUPS, DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/PROSECUTORIAL MISCONDUCT (DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))

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WHETHER THE POLICE RECEIVED VOLUNTARY CONSENT TO ENTER AN APARTMENT IS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS WILL NOT REVIEW, TWO CONCURRING OPINIONS DEALT WITH AN ISSUE WHICH WAS NOT RAISED, WHETHER THE POLICE WENT TO THE APARTMENT INTENDING TO MAKE A WARRANTLESS ARREST (CT APP).

The Court of Appeals, over two concurring opinions, determined that it could not review whether the police received voluntary consent to enter an apartment because it is a mixed question of law and fact and there is support in the record for the motion court's ruling. The concurring opinions dealt with an issue which was not raised below or on appeal—whether the police went to the apartment with the intent to make a warrantless arrest:

The determination as to whether police received voluntary consent to enter the apartment is a mixed question of law and fact … . “Although the voluntariness of the consent is open to dispute, our power to review affirmed findings of fact is limited. Since the finding of the trial court is supported by the record, we are precluded from upsetting it”… . As our concurring colleagues acknowledge, defendant did not contend below and does not contend on this appeal that his arrest was unlawful because the police went to his home with the intent of making a warrantless arrest. People v Xochimitl, 2018 NY Slip Op 06053, CtApp 9-13-18

CRIMINAL LAW (WHETHER THE POLICE RECEIVED VOLUNTARY CONSENT TO ENTER AN APARTMENT IS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS WILL NOT REVIEW, TWO CONCURRING OPINIONS DEALT WITH AN ISSUE WHICH WAS NOT RAISED, WHETHER THE POLICE WENT TO THE APARTMENT INTENDING TO MAKE A WARRANTLESS ARREST (CT APP))/EVIDENCE (CRIMINAL LAW, APPEALS, WHETHER THE POLICE RECEIVED VOLUNTARY CONSENT TO ENTER AN APARTMENT IS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS WILL NOT REVIEW, TWO CONCURRING OPINIONS DEALT WITH AN ISSUE WHICH WAS NOT RAISED, WHETHER THE POLICE WENT TO THE APARTMENT INTENDING TO MAKE A WARRANTLESS ARREST (CT APP))/APPEALS (CRIMINAL LAW, WHETHER THE POLICE RECEIVED VOLUNTARY CONSENT TO ENTER AN APARTMENT IS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS WILL NOT REVIEW, TWO CONCURRING OPINIONS DEALT WITH AN ISSUE WHICH WAS NOT RAISED, WHETHER THE POLICE WENT TO THE APARTMENT INTENDING TO MAKE A WARRANTLESS ARREST (CT APP))/MIXED QUESTION OF LAW AND FACT (APPEALS, CRIMINAL LAW, WHETHER THE POLICE RECEIVED VOLUNTARY CONSENT TO ENTER AN APARTMENT IS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS WILL NOT REVIEW, TWO CONCURRING OPINIONS DEALT WITH AN ISSUE WHICH WAS NOT RAISED, WHETHER THE POLICE WENT TO THE APARTMENT INTENDING TO MAKE A WARRANTLESS ARREST (CT APP))

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APPELLATE DIVISION APPLIED THE CORRECT CRITERIA IN ITS WEIGHT OF THE EVIDENCE ANALYSIS, DESPITE CITING SEVERAL DECISIONS THAT SHOULD NO LONGER BE FOLLOWED (CT APP).

The Court of Appeals, over a two-judge dissent, determined that the Appellate Division applied the correct analysis to its weight of the evidence review, despite the Appellate Division's citing of several decisions which should no longer be followed:

The Appellate Division stated the correct standard of review when it concluded that, “viewing the evidence presented at trial in a neutral light . . . , and weighing the relative probative force of the conflicting testimony and evidence, as well as the relative strength of the conflicting inferences to be drawn therefrom, and according deference to the jury's opportunity to view the witnesses, hear their testimony and observe their demeanor, the jury was justified in finding that the People sustained their burden of disproving defendant's justification defense beyond a reasonable doubt” (157 AD3d 107, 116, 118 [1st Dept 2017]; see People v Romero, 7 NY3d 633, 643-644 [2006]; People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). To the extent the Appellate Division cited to certain prior decisions (see 157 AD3d at 109, citing People v Castillo, 223 AD2d 481, 481 [1st Dept 1996]; People v Bartley, 219 AD2d 566, 567 [1st Dept 1995], lv denied 87 NY2d 898 [1st Dept 1995]; People v Corporan, 169 AD2d 643, 643 [1st Dept 1991], lv denied 77 NY2d 959 [1st Dept 1991]) containing language that is inconsistent with our more recent guidance regarding weight of the evidence (see People v Delamota, 18 NY3d 107, 116-117 [2011]), those decisions should not be followed.

… .[T]he Appellate Division applied the correct standard from Romero and Bleakley, which involves a “two-step approach” wherein the court must (1) “determine whether, based on all the credible evidence, an acquittal would not have been unreasonable[;]” and (2) “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” … . People v Sanchez, 2018 NY Slip Op 06052, CtApp 9-13-18

CRIMINAL LAW (APPELLATE DIVISION APPLIED THE CORRECT CRITERIA IN ITS WEIGHT OF THE EVIDENCE ANALYSIS, DESPITE CITING SEVERAL DECISIONS THAT SHOULD NO LONGER BE FOLLOWED (CT APP))/APPEALS (CRIMINAL LAW, APPELLATE DIVISION APPLIED THE CORRECT CRITERIA IN ITS WEIGHT OF THE EVIDENCE ANALYSIS, DESPITE CITING SEVERAL DECISIONS THAT SHOULD NO LONGER BE FOLLOWED (CT APP))/EVIDENCE (CRIMINAL LAW, APPEALS, APPELLATE DIVISION APPLIED THE CORRECT CRITERIA IN ITS WEIGHT OF THE EVIDENCE ANALYSIS, DESPITE CITING SEVERAL DECISIONS THAT SHOULD NO LONGER BE FOLLOWED (CT APP))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, APPELLATE DIVISION APPLIED THE CORRECT CRITERIA IN ITS WEIGHT OF THE EVIDENCE ANALYSIS, DESPITE CITING SEVERAL DECISIONS THAT SHOULD NO LONGER BE FOLLOWED (CT APP))

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POST-JUDGMENT MOTION TO VACATE A SENTENCE IMPOSED UNDER AN INCORRECT PREDICATE-FELONY-DESIGNATION THAT WAS LESS SEVERE THAN THE SENTENCE REQUIRED BY THE CORRECT PREDICATE-FELONY DESIGNATION PROPERLY DENIED (FIRST DEPT).

The First Department determined defendant could not, in a post-judgment motion, contest a predicate-felony-based sentence that resulted in a less severe sentence than the correct predicate-felony-designation would have required. Courts have previously held appeals on this ground could not be brought. The First Department applied the same logic to defendant's post-judgment motion to vacate his sentence pursuant to Criminal Procedure Law 440.20:

… 21 years later, defendant claims that he was unlawfully sentenced as a second felony offender, when he should have been sentenced as a second violent felony offender. His argument is that the court erred in his favor by imposing a lesser predicate felony adjudication than the one required by his prior record. It is apparent that defendant seeks a resentencing in order to “to upset sequentiality for purposes of determining whether the conviction . . . can serve as a predicate for multiple felony offender status” … .

As defendant was not “adversely affected” by any perceived error by the court in sentencing him, and, indeed, benefitted from the imposition of a less serious predicate status, defendant's CPL 440.20 claim must be rejected without consideration of the merits of his argument that the court erred when it pronounced sentence.(CPL 470.15[1] …).

… [C]ourts [have relied] upon CPL 470.15(1) to deny direct appeals from sentences that were equal to or shorter than the sentence the defendant would have received if the alleged error in sentence had not occurred. We hold today that CPL 470.15(1) equally bars appeals from motions which challenge such alleged sentencing errors. To do otherwise would lead to the anomalous result that a defendant could achieve a result by motion which could not be obtained on a direct appeal. People v McNeil, 2018 NY Slip Op 05970, First Dept 9-6-18

Similar issues and result in People v Francis, 2018 NY Slip Op 05971, First Dept 9-6-18.

CRIMINAL LAW (POST-JUDGMENT MOTION TO VACATE A SENTENCE IMPOSED UNDER AN INCORRECT PREDICATE-FELONY-DESIGNATION THAT WAS LESS SEVERE THAN THE SENTENCE REQUIRED BY THE CORRECT PREDICATE-FELONY DESIGNATION PROPERLY DENIED (FIRST DEPT))/APPEALS (CRIMINAL LAW, POST-JUDGMENT MOTION TO VACATE A SENTENCE IMPOSED UNDER AN INCORRECT PREDICATE-FELONY-DESIGNATION THAT WAS LESS SEVERE THAN THE SENTENCE REQUIRED BY THE CORRECT PREDICATE-FELONY DESIGNATION PROPERLY DENIED (FIRST DEPT)).VACATE SENTENCE, MOTION TO (POST-JUDGMENT MOTION TO VACATE A SENTENCE IMPOSED UNDER AN INCORRECT PREDICATE-FELONY-DESIGNATION THAT WAS LESS SEVERE THAN THE SENTENCE REQUIRED BY THE CORRECT PREDICATE-FELONY DESIGNATION PROPERLY DENIED (FIRST DEPT))/SENTENCING  (POST-JUDGMENT MOTION TO VACATE A SENTENCE IMPOSED UNDER AN INCORRECT PREDICATE-FELONY-DESIGNATION THAT WAS LESS SEVERE THAN THE SENTENCE REQUIRED BY THE CORRECT PREDICATE-FELONY DESIGNATION PROPERLY DENIED (FIRST DEPT))

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DENIAL OF A REPORTER’S MOTION TO QUASH A SUBPOENA FOR EVIDENCE OF HER JAILHOUSE INTERVIEW OF THE DEFENDANT IN A CRIMINAL PROCEEDING IS NOT APPEALABLE (CT APP).

The First Department, upon remittitur from the Ct. of Appeals, held that the denial of a reporter’s motion to quash a subpoena for evidence of her jailhouse interview of the defendant is not appealable:

“[N]o appeal lies from an order arising out of a criminal proceeding absent specific statutory authorization” (Matter of People v Juarez , _NY3d_, 2018 NY Slip Op 04684 [2018]), quoting People v Santos , 64 NY2d 702, 704 [1984]). As pertinent to the issue in this case, “an order determining a motion to quash a subpoena . . . issued in the course of prosecution of a criminal action, arises out of a criminal proceeding for which no direct appellate review is authorized” (id.; see CPL art 450). People v Juarez, 2018 NY Slip Op 05969, First Dept 9-6-18

CRIMINAL LAW (DENIAL OF A REPORTER’S MOTION TO QUASH A SUBPOENA FOR EVIDENCE OF HER JAILHOUSE INTERVIEW OF THE DEFENDANT IN A CRIMINAL PROCEEDING IS NOT APPEALABLE (CT APP))/CIVIL PROCEDURE (DENIAL OF A REPORTER’S MOTION TO QUASH A SUBPOENA FOR EVIDENCE OF HER JAILHOUSE INTERVIEW OF THE DEFENDANT IN A CRIMINAL PROCEEDING IS NOT APPEALABLE (CT APP))/APPEALS (CRIMINAL LAW, DENIAL OF A REPORTER’S MOTION TO QUASH A SUBPOENA FOR EVIDENCE OF HER JAILHOUSE INTERVIEW OF THE DEFENDANT IN A CRIMINAL PROCEEDING IS NOT APPEALABLE (CT APP))/CONSTITUTIONAL LAW (DENIAL OF A REPORTER’S MOTION TO QUASH A SUBPOENA FOR EVIDENCE OF HER JAILHOUSE INTERVIEW OF THE DEFENDANT IN A CRIMINAL PROCEEDING IS NOT APPEALABLE (CT APP))/EVIDENCE (CRIMINAL LAW, DENIAL OF A REPORTER’S MOTION TO QUASH A SUBPOENA FOR EVIDENCE OF HER JAILHOUSE INTERVIEW OF THE DEFENDANT IN A CRIMINAL PROCEEDING IS NOT APPEALABLE (CT APP))

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ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT).

The Second Department determined no appeal lies from an adjournment in contemplation of dismissal (ACD) which has resulted in dismissal:

“It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal. This principle, which forbids courts to pass on academic, hypothetical, moot, or otherwise abstract questions, is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary” … .

Thus, an appeal is academic “unless an adjudication of the merits will result in immediate and practical consequences to the parties” … .

The application of these principles to the facts of this case establish that the appeal is academic. In the order appealed from, the Family Court adjourned the proceedings in contemplation of dismissal until July 18, 2017. Where a proceeding is adjourned in contemplation of dismissal, and the proceeding is not restored to the calendar and no applications by the petitioner or the child's attorney or motions by the court to restore the proceeding to the calendar are pending, “the petition is, at the expiration of the adjournment period, deemed to have been dismissed by the court in furtherance of justice” (Family Ct Act 1039[f]). Thus, the petition has been dismissed, by operation of law and in the furtherance of justice… . Given that the appellants have received the exact relief they seek, any determination we might make in this matter would have no direct effect on the rights of the parties before us … . Matter of Priciliyana C. (Jacklyn L.), 2018 NY Slip Op 05927, Second Dept 8-29-18

APPEALS (ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT))/CRIMINAL LAW (APPEALS, ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT))/FAMILY LAW (APPEALS, ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT))/ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD, ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT))

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CPL 450.10 (1), WHICH PURPORTS TO PROHIBIT AN ‘EXCESSIVE SENTENCE’ APPEAL AFTER A GUILTY PLEA, IS UNCONSTITUTIONAL, DEFENDANT’S WAIVER OF APPEAL, HOWEVER, WAS VALID (SECOND DEPT).

The Second Department noted that Criminal Procedure Law 450.10(1), which purports to prohibit an “excessive sentence” appeal after a guilty plea, is unconstitutional in that it limits the jurisdiction of the Appellate Division, in violation of the NYS Constitution. But the court went on to find that defendant's waiver of appeal was valid and precluded contesting his sentence:

CPL 450.10(1) provides a criminal defendant with the right to appeal a judgment “unless the appeal is based solely upon the ground that a sentence was harsh or excessive when such sentence was predicated upon entry of a plea of guilty and the sentence imposed did not exceed that which was agreed to by the defendant as a condition of the plea.” As the People acknowledge, the Court of Appeals has held that this provision is unconstitutional because “it imposes a limitation or condition on the jurisdiction of the Appellate Division of Supreme Court in contravention of NY Constitution, article VI, § 4(k)” … . * * *

Here, the record of the plea proceeding demonstrates that the defendant understood that the appeal waiver was separate and distinct from those rights automatically forfeited upon a plea of guilty and that the defendant was voluntarily relinquishing that right in consideration for the promised sentence … . Furthermore, the record of the plea proceeding demonstrates that the defendant received an explanation of the nature of the right to appeal and the consequences of waiving that right … . People v Swen, 2018 NY Slip Op 05949, Second Dept 8-29-18

CRIMINAL LAW (CPL 450.10 (1), WHICH PURPORTS TO PROHIBIT AN 'EXCESSIVE SENTENCE' APPEAL AFTER A GUILTY PLEA, IS UNCONSTITUTIONAL, DEFENDANT'S WAIVER OF APPEAL, HOWEVER, WAS VALID (SECOND DEPT))/CONSTITUTIONAL LAW (CRIMINAL LAW, CPL 450.10 (1), WHICH PURPORTS TO PROHIBIT AN 'EXCESSIVE SENTENCE' APPEAL AFTER A GUILTY PLEA, IS UNCONSTITUTIONAL, DEFENDANT'S WAIVER OF APPEAL, HOWEVER, WAS VALID (SECOND DEPT))/APPEALS (CRIMINAL LAW, CPL 450.10 (1), WHICH PURPORTS TO PROHIBIT AN 'EXCESSIVE SENTENCE' APPEAL AFTER A GUILTY PLEA, IS UNCONSTITUTIONAL, DEFENDANT'S WAIVER OF APPEAL, HOWEVER, WAS VALID (SECOND DEPT))/WAIVER OF APPEAL (CRIMINAL LAW, CPL 450.10 (1), WHICH PURPORTS TO PROHIBIT AN 'EXCESSIVE SENTENCE' APPEAL AFTER A GUILTY PLEA, IS UNCONSTITUTIONAL, DEFENDANT'S WAIVER OF APPEAL, HOWEVER, WAS VALID (SECOND DEPT))/SENTENCING (APPEALS, CPL 450.10 (1), WHICH PURPORTS TO PROHIBIT AN 'EXCESSIVE SENTENCE' APPEAL AFTER A GUILTY PLEA, IS UNCONSTITUTIONAL, DEFENDANT'S WAIVER OF APPEAL, HOWEVER, WAS VALID (SECOND DEPT))

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RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, over a dissent, reversed defendant's convictions for reckless endangerment and reckless assault. Defendant had picked up a gun that his friend (Morales) had brought to his house. In handling the gun it went off injuring his friend's leg. His friend was asleep when the gun fired. Defendant immediately said he was sorry, put the gun in a garbage can and accompanied his friend to the hospital. The Second Department determined the convictions were against the weight of the evidence because there was insufficient proof that defendant acted recklessly:

… [T]he People failed to prove beyond a reasonable doubt that the defendant was aware of and consciously disregarded a substantial risk that his conduct would cause physical injury to another person. The People did not introduce evidence that the defendant was familiar with weapons, or the particular gun. Indeed, the gun was brought to the defendant's home by Morales, and it is undisputed that the gun discharged as the defendant handled it out of curiosity. There was no evidence from which it could be inferred that the defendant knew the gun was loaded with live ammunition, or even knew how the particular gun operated. There was no evidence introduced that the defendant was aware of and consciously disregarded the risk that the gun might misfire … . Indeed, Morales testified that the defendant appeared “scared” when the gun discharged and that the defendant immediately stated that he was “sorry.” The defendant attempted to dispose of the gun and helped the victim get medical care. Contrary to the People's contention, there was no testimony that the defendant was pointing the gun at Morales when it discharged, and there was no evidence introduced establishing that the only way the pellets could have struck Morales's leg was by pointing the gun directly at Morales. People v Marin, 2018 NY Slip Op 05942, Second Dept 8-29-18

CRIMINAL LAW (RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/APPEALS (CRIMINAL LAW, RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/RECKLESSNESS (CRIMINAL LAW, RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))

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