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DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined that defendant’s plea colloquy negated an essential element of the offense (criminal contempt). An exception to the preservation requirement applied:

“[W]here a pleading defendant’s recitation of the facts of his or her offense clearly casts doubt on his or her guilt and the court makes no further inquiry, the defendant does not have to preserve a claim of fatal error in the allocution because . . . ‘the court’s attention should have been instantly drawn to the problem, and the salutary purpose of the preservation rule is arguably not jeopardized'” … . Here, defendant stated during her plea allocution that she did not intend to violate the underlying order of protection, thus negating an element of criminal contempt in the first degree… . Although County Court promptly responded and afforded defendant an opportunity to again consult with her counsel, further discussion was then held off the record. Thus, we are unable to ascertain from the record whether the court conducted the requisite further inquiry to ensure that defendant understood the elements of the crime to which she was pleading guilty and that the plea was knowing, voluntary and intelligent … . People v Busch-scardino, 2018 NY Slip Op 01218, Third Dept 2-22-18

CRIMINAL LAW (DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))/GUILTY PLEA (DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))/ALLOCUTION (CRIMINAL LAW, DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))/PRESERVATION (CRIMINAL LAW, APPEALS, DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))

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DEFENDANT WAS ENTITLED TO DISMISSAL OF THE MURDER INDICTMENT ON CONSTITUTIONAL SPEEDY TRIAL GROUNDS, SIX-YEARS BETWEEN ARREST AND GUILTY PLEA, SPEEDY TRIAL IS NOT A MIXED QUESTION OF LAW AND FACT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a three-judge dissent, reversing the appellate division, determined that defendant was entitled to dismissal of the second degree murder indictment (to which he pled guilty) on constitutional speedy trial grounds. The opinion is fact-based, covers several significant legal issues (i.e. CPL 30.30 is not applicable, speedy trial is not a mixed question of law and fact, pre versus post-indictment delay, inter alia), and cannot be fairly summarized here. ” … [T]he People pursued a cooperation agreement with [codefendant] Armstead for approximately 2½ years. After that effort proved unsuccessful, they spent the next three years attempting to convict Armstead, trying him separately from defendant. After three mistrials, Armstead had been convicted of only criminal possession of a weapon in the second degree, he had been acquitted on the top count of second-degree murder, and the People were no closer to securing his testimony against defendant. The time between defendant’s arrest on May 28, 2008 and defendant’s plea on September 23, 2014 spanned six years, three months, and 25 days, from when defendant was 16 years old until he was 22. Defendant spent the entirety of that period incarcerated.” The opinion goes through each of the Taranovich factors:

We analyze constitutional speedy trial claims using the five factors set forth in People v Taranovich (37 NY2d 442 [1975]): “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay” (id. at 445). These factors are similar, but not identical, to the factors used in evaluating speedy trial claims under the federal constitution, which include the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant” … . “[N]o one factor or combination of the factors . . . is necessarily decisive or determinative of the speedy trial claim, but rather the particular case must be considered in light of all the factors as they apply to it” … . People v Wiggins, 2018 NY Slip Op 01111, CtApp 2-15-18

CRIMINAL LAW (SPEEDY TRIAL, APPEALS, DEFENDANT WAS ENTITLED TO DISMISSAL OF THE MURDER INDICTMENT ON CONSTITUTIONAL SPEEDY TRIAL GROUNDS, SIX-YEARS BETWEEN ARREST AND GUILTY PLEA, SPEEDY TRIAL IS NOT A MIXED QUESTION OF LAW AND FACT (CT APP))/SPEEDY TRIAL (DEFENDANT WAS ENTITLED TO DISMISSAL OF THE MURDER INDICTMENT ON CONSTITUTIONAL SPEEDY TRIAL GROUNDS, SIX-YEARS BETWEEN ARREST AND GUILTY PLEA, SPEEDY TRIAL IS NOT A MIXED QUESTION OF LAW AND FACT (CT APP))/APPEALS (CRIMINAL LAW, SPEEDY TRIAL, EFENDANT WAS ENTITLED TO DISMISSAL OF THE MURDER INDICTMENT ON CONSTITUTIONAL SPEEDY TRIAL GROUNDS, SIX-YEARS BETWEEN ARREST AND GUILTY PLEA, SPEEDY TRIAL IS NOT A MIXED QUESTION OF LAW AND FACT (CT APP))/MIXED QUESTION OF LAW AND FACT (CRIMINAL LAW, APPEALS, SPEEDY TRIAL, DEFENDANT WAS ENTITLED TO DISMISSAL OF THE MURDER INDICTMENT ON CONSTITUTIONAL SPEEDY TRIAL GROUNDS, SIX-YEARS BETWEEN ARREST AND GUILTY PLEA, SPEEDY TRIAL IS NOT A MIXED QUESTION OF LAW AND FACT (CT APP))

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PERIODS OF POSTRELEASE SUPERVISION MERGE AND CANNOT RUN CONSECUTIVELY, ILLEGAL SENTENCE MUST BE CORRECTED EVEN IF ISSUE NOT RAISED ON APPEAL (FOURTH DEPT).

The Fourth Department noted that periods of postrelease supervision cannot run consecutively. An illegal sentence must be corrected even if the issue is not raised on appeal:

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… [T]he court erred in directing that the periods of postrelease supervision run consecutively to the periods of postrelease supervision imposed in appeal No. 1 … . “Penal Law § 70.45 (5) (c) requires that the periods of postrelease supervision merge and are satisfied by the service of the longest unexpired term” … . We cannot allow an illegal sentence to stand … and we therefore modify the judgment …  accordingly. People v Mcmillian, 2018 NY Slip Op 00649, Fourth Dept 2-2-18

CRIMINAL LAW (PERIODS OF POSTRELEASE SUPERVISION MERGE AND CANNOT RUN CONSECUTIVELY (FOURTH DEPT))/SENTENCING (PERIODS OF POSTRELEASE SUPERVISION MERGE AND CANNOT RUN CONSECUTIVELY (FOURTH DEPT))/POSTRELEASE SUPERVISION  (PERIODS OF POSTRELEASE SUPERVISION MERGE AND CANNOT RUN CONSECUTIVELY (FOURTH DEPT))/APPEALS (CRIMINAL LAW, ILLEGAL SENTENCE MUST BE CORRECTED EVEN IF ISSUE NOT RAISED ON APPEAL (FOURTH DEPT))

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ALTHOUGH THERE WAS NO ABUSE OF DISCRETION BY COUNTY COURT, APPELLATE COURT VACATED THE CONVICTION AND ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department vacated defendant’s conviction and adjudicated defendant a youthful offender in the interest of justice (no abuse of discretion). The only factor weighing against youthful offender treatment was the seriousness of the crime, an armed felony:

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In determining whether to afford such treatment to a defendant, a court must consider “the gravity of the crime and manner in which it was committed, mitigating circumstances, defendant’s prior criminal record, prior acts of violence, recommendations in the presentence reports, defendant’s reputation, the level of cooperation with authorities, defendant’s attitude toward society and respect for the law, and the prospects for rehabilitation and hope for a future constructive life” … . Here, the only factor weighing against affording defendant youthful offender treatment is the seriousness of the crime … . Defendant was 17 years old at the time of the crime and had no prior criminal record or history of violence. Defendant has accepted responsibility for his actions and expressed genuine remorse. The presentence report recommended youthful offender treatment, and the record establishes that defendant has the capacity for a productive and law-abiding future.

Although we do not conclude, after weighing the appropriate factors, that the court abused its discretion in denying defendant youthful offender status, we nevertheless choose to exercise our discretion in the interest of justice by reversing the judgment, vacating the conviction, and adjudicating defendant a youthful offender, and we remit the matter to County Court for sentencing on the adjudication … . People v Keith B.J., 2018 NY Slip Op 00734, Fourth Dept 2-2-18

CRIMINAL LAW (YOUTHFUL OFFENDER, ALTHOUGH THERE WAS NO ABUSE OF DISCRETION BY COUNTY COURT, APPELLATE COURT VACATED THE CONVICTION AND ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER IN THE INTEREST OF JUSTICE (FOURTH DEPT))/APPEALS (CRIMINAL LAW, INTEREST OF JUSTICE, YOUTHFUL OFFENDER, ALTHOUGH THERE WAS NO ABUSE OF DISCRETION BY COUNTY COURT, APPELLATE COURT VACATED THE CONVICTION AND ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER IN THE INTEREST OF JUSTICE (FOURTH DEPT))/YOUTHFUL OFFENDER (CRIMINAL LAW, ALTHOUGH THERE WAS NO ABUSE OF DISCRETION BY COUNTY COURT, APPELLATE COURT VACATED THE CONVICTION AND ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER IN THE INTEREST OF JUSTICE (FOURTH DEPT))

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SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A FELONY DEFINED IN THE CORRECTIONS LAW, AS OPPOSED TO THE PENAL LAW, ILLEGAL SENTENCE MUST BE CORRECTED EVEN WHERE THERE IS A WAIVER OF APPEAL AND THE ISSUE WAS NOT RAISED BELOW OR ON APPEAL (FOURTH DEPT).

The Fourth Department noted than an illegal sentence must be corrected even where there has been a waiver of appeal, and even where the issue was not raised below or on appeal. Here defendant was sentenced as a second felony offender, which is not proper when the underlying felony is defined in the Correction Law, not in the Penal Law:

… [I]t is well settled that “even a valid waiver of the right to appeal will not bar [review of] an illegal sentence” … , and we note that the sentence imposed by the court on count three of the superior court information, i.e., a determinate term of incarceration for failure to register internet identifiers as a class D felony, is illegal. That crime is defined in the Correction Law, and “only a person convicted of a felony defined by the Penal Law may be sentenced as a second felony offender” to a determinate term of incarceration … . “Although [the] issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand” … . People v Mcdonald, 2018 NY Slip Op 00657, Fourth Dept 2-2-18

CRIMINAL LAW (SECOND FELONY OFFENDERS, APPEALS, SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A FELONY DEFINED IN THE CORRECTIONS LAW, AS OPPOSED TO THE PENAL LAW, ILLEGAL SENTENCE MUST BE CORRECTED EVEN WHERE THERE IS A WAIVER OF APPEAL AND THE ISSUE WAS NOT RAISED BELOW OR ON APPEAL (FOURTH DEPT))/SENTENCING (SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A FELONY DEFINED IN THE CORRECTIONS LAW, AS OPPOSED TO THE PENAL LAW, ILLEGAL SENTENCE MUST BE CORRECTED EVEN WHERE THERE IS A WAIVER OF APPEAL AND THE ISSUE WAS NOT RAISED BELOW OR ON APPEAL (FOURTH DEPT))/SECOND FELONY OFFENDERS (SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A FELONY DEFINED IN THE CORRECTIONS LAW, AS OPPOSED TO THE PENAL LAW, ILLEGAL SENTENCE MUST BE CORRECTED EVEN WHERE THERE IS A WAIVER OF APPEAL AND THE ISSUE WAS NOT RAISED BELOW OR ON APPEAL (FOURTH DEPT))/APPEALS (CRIMINAL LAW, SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A FELONY DEFINED IN THE CORRECTIONS LAW, AS OPPOSED TO THE PENAL LAW, ILLEGAL SENTENCE MUST BE CORRECTED EVEN WHERE THERE IS A WAIVER OF APPEAL AND THE ISSUE WAS NOT RAISED BELOW OR ON APPEAL (FOURTH DEPT))/CORRECTIONS LAW (SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A FELONY DEFINED IN THE CORRECTIONS LAW, AS OPPOSED TO THE PENAL LAW, ILLEGAL SENTENCE MUST BE CORRECTED EVEN WHERE THERE IS A WAIVER OF APPEAL AND THE ISSUE WAS NOT RAISED BELOW OR ON APPEAL (FOURTH DEPT))/ILLEGAL SENTENCE (SECOND FELONY OFFENDERS, APPEALS, SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A FELONY DEFINED IN THE CORRECTIONS LAW, AS OPPOSED TO THE PENAL LAW, ILLEGAL SENTENCE MUST BE CORRECTED EVEN WHERE THERE IS A WAIVER OF APPEAL AND THE ISSUE WAS NOT RAISED BELOW OR ON APPEAL (FOURTH DEPT))/INTERNET IDENTIFIERS, FAILURE TO REGISTER (CORRECTIONS LAW, SECOND FELONY OFFENDERS, APPEALS, SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A FELONY DEFINED IN THE CORRECTIONS LAW, AS OPPOSED TO THE PENAL LAW, ILLEGAL SENTENCE MUST BE CORRECTED EVEN WHERE THERE IS A WAIVER OF APPEAL AND THE ISSUE WAS NOT RAISED BELOW OR ON APPEAL (FOURTH DEPT))

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FAILURE TO INSTRUCT JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED ON THE JUSTIFICATION DEFENSE PRECLUDED CONSIDERATION OF THE REMAINING CHARGES REQUIRED REVERSAL IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, reversing Supreme Court in the interest of justice (error not preserved), determined that the judge’s failure to instruct the jury that a not guilty verdict on the top count based on the justification defense precluded consideration of the remaining charges was reversible error. The top count was attempted murder and defendant was convicted of assault second degree:

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… [T]the court’s charge failed to convey that an acquittal on the top count of attempted second-degree murder based on a finding of justification would preclude consideration of the remaining charges. We find that this error was not harmless and that it warrants reversal in the interest of justice … . People v Marcucci, 2018 NY Slip Op 00634, First Dept 2-1-18

CRIMINAL LAW (FAILURE TO INSTRUCT JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED ON THE JUSTIFICATION DEFENSE PRECLUDED CONSIDERATION OF THE REMAINING CHARGES REQUIRED REVERSAL IN THE INTEREST OF JUSTICE (FIRST DEPT))/APPEALS (CRIMINAL LAW, FAILURE TO INSTRUCT JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED ON THE JUSTIFICATION DEFENSE PRECLUDED CONSIDERATION OF THE REMAINING CHARGES REQUIRED REVERSAL IN THE INTEREST OF JUSTICE (FIRST DEPT))/JUSTIFICATION DEFENSE (CRIMINAL LAW, FAILURE TO INSTRUCT JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED ON THE JUSTIFICATION DEFENSE PRECLUDED CONSIDERATION OF THE REMAINING CHARGES REQUIRED REVERSAL IN THE INTEREST OF JUSTICE (FIRST DEPT))

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WAIVER OF RIGHT TO APPEAL INVALID (SECOND DEPT).

The Second Department determined defendant’s waiver of his right to appeal was not valid:

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… [T]he record of the plea proceeding did not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal. The Supreme Court, after inquiring of counsel whether the defendant had executed a written waiver, advised the defendant: “[Y]ou have just executed the waiver of appeal. And by doing so, you have given up your right to appeal, which means there will be no appeal with regards to anything in your case.” Instead of ascertaining whether the defendant had made a knowing, voluntary, and intelligent choice to waive his right to appeal as a condition of his plea, the court merely informed the defendant that he had already waived his right to appeal by executing the appeal waiver and then confirmed that the defendant understood this established fact. “[A] defendant does not validly waive his or her right to appeal where the colloquy suggests that waiving the right to appeal [is] mandatory rather than a right which the defendant [is] being asked to voluntarily relinquish'” … . Moreover, the court failed to establish on the record that the defendant read and understood the written waiver, or discussed the waiver with his counsel … . People v Johnson, 2018 NY Slip Op 00567, Second Dept 1-31-18

CRIMINAL LAW (APPEALS, WAIVER OF RIGHT TO APPEAL INVALID (SECOND DEPT))/APPEALS (CRIMINAL LAW, WAIVER OF RIGHT TO APPEAL INVALID (SECOND DEPT))/WAIVER (RIGHT TO APPEAL, CRIMINAL LAW WAIVER OF RIGHT TO APPEAL INVALID (SECOND DEPT))

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CLAUSE IN THE COMMERCIAL LEASES WHICH WAIVED THE AVAILABILITY OF DECLARATORY RELIEF WAS VALID AND ENFORCEABLE AND EXTENDED TO PRECLUDE THE AVAILABILITY OF A YELLOWSTONE INJUNCTION IN THIS LEASE TERMINATION PROCEEDING, WHETHER WAIVER VIOLATED PUBLIC POLICY, ALTHOUGH NOT RAISED BELOW, PROPERLY CONSIDERED ON APPEAL (FIRST DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, over an extensive dissenting opinion, determined the waiver-of-declaratory-relief clause in the commercial leases was enforceable and precluded both the plaintiffs’ declaratory judgment action and the availability of a Yellowstone injunction (which would have stayed termination of the lease while the merits are considered). Although not raised below, the appellate court had the authority to consider whether the waiver violated public policy (no public policy violation found). The plaintiffs’ (tenants’) declaratory judgment and Yellowstone injunction actions were in response to the landlord’s notice to cure, which gave the tenants’ 15 days to cure certain alleged lease violations before termination of the leases. The waiver clause included a statement that the parties intended all disputes to be dealt with in summary proceedings:

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Paragraph 67(H) in the rider of each lease provided that the tenant: “waives its right to bring a declaratory judgment action with respect to any provision of this Lease or with respect to any notice sent pursuant to the provisions of this Lease. Any breach of this paragraph shall constitute a breach of substantial obligations of the tenancy, and shall be grounds for the immediate termination of this Lease. It is further agreed that in the event injunctive relief is sought by Tenant and such relief shall be denied, the Owner shall be entitled to recover the costs of opposing such an application, or action, including its attorney’s fees actually incurred, it is the intention of the parties hereto that their disputes be adjudicated via summary proceedings.” * * *

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… “[W]here a contract provision is arguably void as against public policy, that issue may be raised for the first time at the Appellate Division by a party, or by the court on its own motion” … . We therefore reach the merits of the public policy issue raised on appeal. * * *

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Here, the parties were sophisticated entities that negotiated at arm’s length and entered into lengthy and detailed leases defining each party’s rights and obligations with great apparent care and specificity. 159 MP Corp. v Redbridge Bedford, LLC, 2018 NY Slip Op 00537, Second Dept 1-31-18

LANDLORD-TENANT (DECLARATORY RELIEF, YELLOWSTONE INJUNCTION, CLAUSE IN THE COMMERCIAL LEASES WHICH WAIVED THE AVAILABILITY OF DECLARATORY RELIEF WAS VALID AND ENFORCEABLE AND EXTENDED TO PRECLUDE THE AVAILABILITY OF A YELLOWSTONE INJUNCTION IN THIS LEASE TERMINATION PROCEEDING, WHETHER WAIVER VIOLATED PUBLIC POLICY, ALTHOUGH NOT RAISED BELOW, PROPERLY CONSIDERED ON APPEAL (FIRST DEPT))/CONTRACT LAW (LANDLORD-TENANT, LEASES, DECLARATORY RELIEF, YELLOWSTONE INJUNCTION, CLAUSE IN THE COMMERCIAL LEASES WHICH WAIVED THE AVAILABILITY OF DECLARATORY RELIEF WAS VALID AND ENFORCEABLE AND EXTENDED TO PRECLUDE THE AVAILABILITY OF A YELLOWSTONE INJUNCTION IN THIS LEASE TERMINATION PROCEEDING, WHETHER WAIVER VIOLATED PUBLIC POLICY, ALTHOUGH NOT RAISED BELOW, PROPERLY CONSIDERED ON APPEAL (FIRST DEPT))/YELLOWSTONE INJUNCTION (LANDLORD-TENANT,  CLAUSE IN THE COMMERCIAL LEASES WHICH WAIVED THE AVAILABILITY OF DECLARATORY RELIEF WAS VALID AND ENFORCEABLE AND EXTENDED TO PRECLUDE THE AVAILABILITY OF A YELLOWSTONE INJUNCTION IN THIS LEASE TERMINATION PROCEEDING, WHETHER WAIVER VIOLATED PUBLIC POLICY, ALTHOUGH NOT RAISED BELOW, PROPERLY CONSIDERED ON APPEAL (FIRST DEPT))/DECLARATORY JUDGMENT (WAIVER, LANDLORD-TENANT,  CLAUSE IN THE COMMERCIAL LEASES WHICH WAIVED THE AVAILABILITY OF DECLARATORY RELIEF WAS VALID AND ENFORCEABLE AND EXTENDED TO PRECLUDE THE AVAILABILITY OF A YELLOWSTONE INJUNCTION IN THIS LEASE TERMINATION PROCEEDING, WHETHER WAIVER VIOLATED PUBLIC POLICY, ALTHOUGH NOT RAISED BELOW, PROPERLY CONSIDERED ON APPEAL (FIRST DEPT))/COMMERCIAL LEASES (WAIVER OF DECLARATORY RELIEF, YELLOWSTONE INJUNCTION, CLAUSE IN THE COMMERCIAL LEASES WHICH WAIVED THE AVAILABILITY OF DECLARATORY RELIEF WAS VALID AND ENFORCEABLE AND EXTENDED TO PRECLUDE THE AVAILABILITY OF A YELLOWSTONE INJUNCTION IN THIS LEASE TERMINATION PROCEEDING, WHETHER WAIVER VIOLATED PUBLIC POLICY, ALTHOUGH NOT RAISED BELOW, PROPERLY CONSIDERED ON APPEAL (FIRST DEPT))/WAIVERS (LANDLORD-TENANT, COMMERCIAL LEASES, CLAUSE IN THE COMMERCIAL LEASES WHICH WAIVED THE AVAILABILITY OF DECLARATORY RELIEF WAS VALID AND ENFORCEABLE AND EXTENDED TO PRECLUDE THE AVAILABILITY OF A YELLOWSTONE INJUNCTION IN THIS LEASE TERMINATION PROCEEDING, WHETHER WAIVER VIOLATED PUBLIC POLICY, ALTHOUGH NOT RAISED BELOW, PROPERLY CONSIDERED ON APPEAL (FIRST DEPT))/APPEALS (CONTRACT LAW, PUBLIC POLICY, CLAUSE IN THE COMMERCIAL LEASES WHICH WAIVED THE AVAILABILITY OF DECLARATORY RELIEF WAS VALID AND ENFORCEABLE AND EXTENDED TO PRECLUDE THE AVAILABILITY OF A YELLOWSTONE INJUNCTION IN THIS LEASE TERMINATION PROCEEDING, WHETHER WAIVER VIOLATED PUBLIC POLICY, ALTHOUGH NOT RAISED BELOW, PROPERLY CONSIDERED ON APPEAL (FIRST DEPT))/PUBLIC POLICY (APPEALS, CONTRACTS, CLAUSE IN THE COMMERCIAL LEASES WHICH WAIVED THE AVAILABILITY OF DECLARATORY RELIEF WAS VALID AND ENFORCEABLE AND EXTENDED TO PRECLUDE THE AVAILABILITY OF A YELLOWSTONE INJUNCTION IN THIS LEASE TERMINATION PROCEEDING, WHETHER WAIVER VIOLATED PUBLIC POLICY, ALTHOUGH NOT RAISED BELOW, PROPERLY CONSIDERED ON APPEAL (FIRST DEPT))

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FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT).

The Third Department noted that a federal drug conspiracy conviction cannot be used as a predicate felony for a second felony offender adjudication and remitted for resentencing. The defendant had pled guilty to attempted criminal sale of a controlled substance and was sentenced to probation. When he violated the terms of probation he was sentenced to prison as a second felony offender. The Third Department noted that an illegal sentence issue need not be preserved for appeal by objection:

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Defendant … contends that his federal drug conspiracy conviction does not qualify as a predicate New York felony and, therefore, it cannot serve as a basis for his second felony drug offender adjudication. Although this claim is being raised for the first time on appeal, we find that the claim “falls within the narrow exception to our preservation rule permitting appellate review when a sentence’s illegality is readily discernible from the . . . record”… . In the special information charging a predicate offense, the People alleged that defendant was previously convicted in the US District Court for the Northern District of New York of conspiracy to distribute marihuana (21 USC §§ 841, 846). However, the Court of Appeals has determined that, “under New York’s ‘strict equivalency’ standard for convictions rendered in other jurisdictions, a federal conviction for conspiracy to commit a drug crime may not serve as a predicate felony for sentencing purposes” … . We therefore vacate the sentence and remit the matter to County Court for resentencing … . People v Sumter, 2018 NY Slip Op 00354, Third Dept 1-18-17

 

CRIMINAL LAW (PREDICATE FELONY, SENTENCING, FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION (THIRD DEPT))/SENTENCING (FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT))/PREDICATE FELONY (FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT))/SECOND FELONY OFFENDER (FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT))/FEDERAL DRUG CONSPIRACY (PREDICATE FELONY, FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT))/APPEALS (CRIMINAL LAW, ILLEGAL SENTENCE, (PREDICATE FELONY, FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT))

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UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE SECOND DEPT DETERMINED DEFENDANT PROVED HE WAS NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, applying a weight of the evidence analysis, determined the defendant had demonstrated he was not responsible for the criminal acts by reason mental disease or defect. Both the defense and the prosecution presented expert opinion evidence on the “not responsible by reason of mental disease or defect” affirmative defense. The Second Department found that the defense expert, who was experienced in forensic examinations (the prosecution expert was not) proved the affirmative defense by a preponderance of the evidence:

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In conducting our weight of the evidence review where a defendant relies solely upon the affirmative defense of mental disease or defect, we first determine whether a finding of not responsible by reason of mental disease or defect would have been reasonable. If we answer that question in the affirmative, then we must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence, and evaluate the strength of such conclusions in order to decide whether the defendant met his burden of proving the affirmative defense of mental disease or defect by the preponderance of evidence … .

Given the conflicting expert opinions, as well as the witness testimony and psychiatric records, a finding of not responsible by reason of mental disease or defect would have been reasonable. Weighing the opinion of the defense expert, who was an experienced forensic psychiatrist, against the opinion of the prosecution expert, a clinical neuropsychologist with limited experience in forensics, the defense expert’s opinion was more convincing, and entitled to more weight. The defense expert’s opinion better accounted for the witnesses’ testimony regarding their observations of the defendant’s increasingly bizarre behavior and onset of mental illness which began to exhibit itself just weeks before the incident, and continued during and after the incident until the defendant was hospitalized for psychiatric treatment. The defense expert’s opinion was further corroborated by the defendant’s subsequent psychiatric diagnosis and history. People v Hernandez-Beltre, 2018 NY Slip Op 00307, Second Dept 1-17-18

CRIMINAL LAW (EVIDENCE, MENTAL DISEASE OR DEFECT, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE SECOND DEPARTMENT DETERMINED DEFENDANT PROVED HE WAS NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, CONVICTION REVERSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW,  MENTAL DISEASE OR DEFECT, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE SECOND DEPARTMENT DETERMINED DEFENDANT PROVED HE WAS NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, CONVICTION REVERSED (SECOND DEPT))/EXPERT OPINION (CRIMINAL LAW, MENTAL DISEASE OR DEFECT, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE SECOND DEPARTMENT DETERMINED DEFENDANT PROVED HE WAS NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, CONVICTION REVERSED (SECOND DEPT))/MENTAL DISEASE OR DEFECT (CRIMINAL LAW, AFFIRMATIVE DEFENSE, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE SECOND DEPARTMENT DETERMINED DEFENDANT PROVED HE WAS NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, CONVICTION REVERSED (SECOND DEPT))/AFFIRMATIVE DEFENSE (CRIMINAL LAW, MENTAL DISEASE OR DEFECT, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE SECOND DEPARTMENT DETERMINED DEFENDANT PROVED HE WAS NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, CONVICTION REVERSED (SECOND DEPT))/APPEALS (CRIMINAL LAW, WEIGHT OF THE EVIDENCE, MENTAL DISEASE OR DEFECT, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE SECOND DEPARTMENT DETERMINED DEFENDANT PROVED HE WAS NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, CONVICTION REVERSED (SECOND DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, MENTAL DISEASE OR DEFECT, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE SECOND DEPARTMENT DETERMINED DEFENDANT PROVED HE WAS NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, CONVICTION REVERSED (SECOND DEPT))

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