Appeals – Page 97 – New York Appellate Digest

PEOPLE DEMONSTRATED INVENTORY SEARCH WAS VALID, DESPITE EXPECTATION CONTRABAND WOULD BE FOUND, CREDIBILITY OF POLICE WITNESSES BEYOND REVIEW BY COURT OF APPEALS (CT APP).

The Court of Appeals, in a brief memorandum decision, determined the People had demonstrated the search of defendant’s car was a valid inventory search, despite the expectation contraband would be found. The defendant’s argument the search was a ruse depended upon the credibility of the police witnesses, a mixed question of law and fact that cannot be reached by the Court of Appeals:

“[T]he People met their burden of establishing that the [inventory] search was in accordance with procedure and resulted in a meaningful inventory list” and that the primary objectives of the search were to preserve the property located inside the vehicle and to protect police from a claim of lost property … . The fact that the officers knew that contraband might be recovered does “not invalidate the entire search” … . “The inventory here, while not a model, was sufficient to meet the constitutional minimum” … .

The determinations of the lower courts regarding the credibility of the officers and whether the inventory search was a ruse to look for contraband present mixed questions of law and fact … . A mixed question is presented when “the facts are disputed, where credibility is at issue or where reasonable minds may differ as to the inference[s] to be drawn” … . Inasmuch as there is record support for the lower courts’ conclusion that the primary purpose of the search was to inventory the property located in the vehicle, that issue is beyond further review by this Court … . People v Lee, 2017 NY Slip Op 06415, CtApp 9-12-17

CRIMINAL LAW (PEOPLE DEMONSTRATED INVENTORY SEARCH WAS VALID, DESPITE EXPECTATION CONTRABAND WOULD BE FOUND, CREDIBILITY OF POLICE WITNESSES BEYOND REVIEW BY COURT OF APPEALS (CT APP))/SEARCH AND SEIZURE (CRIMINAL LAW, SEARCH AND SEIZURE, PEOPLE DEMONSTRATED INVENTORY SEARCH WAS VALID, DESPITE EXPECTATION CONTRABAND WOULD BE FOUND, CREDIBILITY OF POLICE WITNESSES BEYOND REVIEW BY COURT OF APPEALS (CT APP))/INVENTORY SEARCH (CRIMINAL LAW, PEOPLE DEMONSTRATED INVENTORY SEARCH WAS VALID, DESPITE EXPECTATION CONTRABAND WOULD BE FOUND, CREDIBILITY OF POLICE WITNESSES BEYOND REVIEW BY COURT OF APPEALS (CT APP))/APPEALS (COURT OF APPEALS, CRIMINAL LAW, INVENTORY SEARCH, PEOPLE DEMONSTRATED INVENTORY SEARCH WAS VALID, DESPITE EXPECTATION CONTRABAND WOULD BE FOUND, CREDIBILITY OF POLICE WITNESSES BEYOND REVIEW BY COURT OF APPEALS (CT APP))

September 12, 2017

Appeals, Criminal Law, Sex Offender Registration Act (SORA)

PROOF DID NOT JUSTIFY ASSESSMENT FOR DRUG AND ALCOHOL USE, RISK LEVEL REDUCED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proof did not support assessing 15 points for excessive drug and alcohol use. Defendant’s risk level was reduced from three to two. Although the error was not preserved, the court reviewed it in the interest of justice:

“In order to demonstrate that an offender was abusing [drugs or] alcohol at the time of the offense,’ the People must show by clear and convincing evidence that the offender used [drugs or] alcohol in excess either at the time of the crime or repeatedly in the past” … . Here, although the People offered evidence that the defendant used drugs after the time of the offense, the People failed to prove by clear and convincing evidence that the defendant used alcohol or drugs in excess either at the time of the offense or repeatedly in the past … . Accordingly, the Supreme Court should not have assessed the defendant 15 points under risk factor 11. People v Madison, 2017 NY Slip Op 06200, Second Dept 8-16-17

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, PROOF DID NOT JUSTIFY ASSESSMENT FOR DRUG AND ALCOHOL USE, RISK LEVEL REDUCED IN THE INTEREST OF JUSTICE (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (SEX OFFENDER REGISTRATION ACT, PROOF DID NOT JUSTIFY ASSESSMENT FOR DRUG AND ALCOHOL USE, RISK LEVEL REDUCED IN THE INTEREST OF JUSTICE (SECOND DEPT))/SORA (SEX OFFENDER REGISTRATION ACT, PROOF DID NOT JUSTIFY ASSESSMENT FOR DRUG AND ALCOHOL USE, RISK LEVEL REDUCED IN THE INTEREST OF JUSTICE (SECOND DEPT))/APPEALS (CRIMINAL LAW, INTEREST OF JUSTICE, SEX OFFENDER REGISTRATION ACT, PROOF DID NOT JUSTIFY ASSESSMENT FOR DRUG AND ALCOHOL USE, RISK LEVEL REDUCED IN THE INTEREST OF JUSTICE (SECOND DEPT))

August 16, 2017

Appeals, Criminal Law

FAILURE TO FOLLOW O’RAMA PROCEDURE FOR JURY NOTES REQUIRED REVERSAL, MODE OF PROCEEDINGS ERROR DID NOT REQUIRE PRESERVATION (SECOND DEPT).

The Second Department reversed defendant’s conviction because the trial judge did not follow the O”Rama procedure when addressing two notes sent out by the jury. Although the error was not preserved by objection, it was deemed a mode of proceedings error. The notes asked for a readback of testimony and instructions on the charged offense. Although the judge complied with the requests, the jury notes were not marked as exhibits, were not read to counsel, and counsel were not given an opportunity to respond to the notes outside the presence of the jury:

In People v O’Rama, the Court of Appeals set forth the procedure for handling communications from the jury in accordance with CPL 310.30. “The Court of Appeals held that whenever 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, although the defendant failed to object to the manner in which the Supreme Court handled the two notes, under the circumstances of this case, the court violated 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 … . People v Webster, 2017 NY Slip Op 06198, Second Dept 8-16-17

CRIMINAL LAW (FAILURE TO FOLLOW O’RAMA PROCEDURE FOR JURY NOTES REQUIRED REVERSAL, MODE OF PROCEEDINGS ERROR DID NOT REQUIRE PRESERVATION (SECOND DEPT))/APPEALS (CRIMINAL LAW, FAILURE TO FOLLOW O’RAMA PROCEDURE FOR JURY NOTES REQUIRED REVERSAL, MODE OF PROCEEDINGS ERROR DID NOT REQUIRE PRESERVATION (SECOND DEPT))/JURY NOTES (CRIMINAL LAW, FAILURE TO FOLLOW O’RAMA PROCEDURE FOR JURY NOTES REQUIRED REVERSAL, MODE OF PROCEEDINGS ERROR DID NOT REQUIRE PRESERVATION (SECOND DEPT))/MODE OF PROCEEDINGS ERROR (CRIMINAL LAW, APPEALS, FAILURE TO FOLLOW O’RAMA PROCEDURE FOR JURY NOTES REQUIRED REVERSAL, MODE OF PROCEEDINGS ERROR DID NOT REQUIRE PRESERVATION (SECOND DEPT))/O’RAMA PROCEDURE (CRIMINAL LAW, JURY NOTES, FAILURE TO FOLLOW O’RAMA PROCEDURE FOR JURY NOTES REQUIRED REVERSAL, MODE OF PROCEEDINGS ERROR DID NOT REQUIRE PRESERVATION (SECOND DEPT))

August 16, 2017

Appeals, Civil Procedure, Evidence, Real Estate

LETTERS PURPORTING TO CONSTITUTE TIME OF THE ESSENCE NOTICE DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH CAN SUPPORT A MOTION TO DISMISS, ALTHOUGH NOT RAISED BELOW THE DOCUMENTARY EVIDENCE ISSUE WAS A PROPER BASIS FOR REVERSAL ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the letters evincing a “time of the essence” notification in the underlying real estate transaction did not constitute “documentary evidence” which would support a motion to dismiss. Although he “documentary evidence” argument was not raised below, the court properly considered it as the basis for reversal as a matter of law:

“A motion pursuant to CPLR 3211(a)(1) to dismiss based on documentary evidence may be appropriately granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law”… . “The evidence submitted in support of such motion must be documentary or the motion must be denied” … . “In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as documentary evidence,’ it must be unambiguous, authentic, and undeniable'”… .

“[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” … . “At the same time, [n]either affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)'” … .

Here, the letters submitted by the defendant did not constitute documentary evidence within the meaning of CPLR 3211(a)(1), and should not have been relied upon by the Supreme Court as a basis for granting the defendant’s motion to dismiss the complaint. The only documentary evidence submitted in support of the defendant’s motion was the purchase agreement, which did not “utterly refute” the plaintiffs’ allegations or conclusively establish a defense as a matter of law. Contrary to the defendant’s contention, the issue of whether the letters constitute documentary evidence within the intendment of CPLR 3211(a)(1) can be raised for the first time on appeal because it is one of law which appears on the face of the record and could not have been avoided if it had been raised at the proper juncture … . Feldshteyn v Brighton Beach 2012, LLC, 2017 NY Slip Op 06160, Second Dept 8-16-17

CIVIL PROCEDURE (MOTION TO DISMISS, LETTERS PURPORTING TO CONSTITUTE TIME OF THE ESSENCE NOTICE DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH CAN SUPPORT A MOTION TO DISMISS (SECOND DEPT))/EVIDENCE (MOTION TO DISMISS, LETTERS PURPORTING TO CONSTITUTE TIME OF THE ESSENCE NOTICE DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH CAN SUPPORT A MOTION TO DISMISS (SECOND DEPT))/APPEALS (LETTERS PURPORTING TO CONSTITUTE TIME OF THE ESSENCE NOTICE DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH CAN SUPPORT A MOTION TO DISMISS, ALTHOUGH NOT RAISED BELOW THE DOCUMENTARY EVIDENCE ISSUE WAS A PROPER BASIS FOR REVERSAL ON APPEAL (SECOND DEPT))/REAL ESTATE (LETTERS PURPORTING TO CONSTITUTE TIME OF THE ESSENCE NOTICE DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH CAN SUPPORT A MOTION TO DISMISS, ALTHOUGH NOT RAISED BELOW THE DOCUMENTARY EVIDENCE ISSUE WAS A PROPER BASIS FOR REVERSAL ON APPEAL (SECOND DEPT))/DISMISS, MOTION TO (CIVIL PROCEDURE, (LETTERS PURPORTING TO CONSTITUTE TIME OF THE ESSENCE NOTICE DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH CAN SUPPORT A MOTION TO DISMISS (SECOND DEPT))/DOCUMENTARY EVIDENCE (CIVIL PROCEDURE, MOTION TO DISMISS, LETTERS PURPORTING TO CONSTITUTE TIME OF THE ESSENCE NOTICE DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH CAN SUPPORT A MOTION TO DISMISS (SECOND DEPT))/EVIDENCE (MOTION TO DISMISS, LETTERS PURPORTING TO CONSTITUTE TIME OF THE ESSENCE NOTICE DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH CAN SUPPORT A MOTION TO DISMISS (SECOND DEPT))

August 16, 2017

Appeals, Criminal Law

DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO OBJECT TO THE PROCEDURE RE AN ALLEGED VIOLATION OF PROBATION AND DID NOT WAIVE HIS RIGHT TO A HEARING, APPELLATE REVIEW APPROPRIATE IN THE ABSENCE OF PRESERVATION (SECOND DEPT).

The Second Department, reversing County Court, determined defendant was not given the opportunity to object to the procedure used in finding that he violated probation and did not freely waive his right to a hearing. Preservation of the error was not required for appellate review:

Under the circumstances of this case, the defendant’s contention that the County Court erred in finding that he violated the conditions of his probation without holding a hearing is not subject to the preservation requirement … . The transcript of the resentencing proceeding confirms that the defendant had no reasonable opportunity to object to the court’s procedure before the finding of probation violation was made, and the defendant was resentenced immediately thereafter.

Contrary to the People’s contention, the record contains no evidence that the defendant freely admitted to the violation of probation. Nor is there any evidence that the defendant waived his right to a revocation hearing pursuant to CPL 410.70. Rather, the County Court, without conducting any hearing, found “by a preponderance of the evidence” that the defendant had violated the conditions of his probation. This was error … . People v Montenegro, 2017 NY Slip Op 05973, Second Dept 8-2-17

CRIMINAL LAW (PROBATION VIOLATION, APPEALS, DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO OBJECT TO THE PROCEDURE RE AN ALLEGED VIOLATION OF PROBATION AND DID NOT WAIVE HIS RIGHT TO A HEARING, APPELLATE REVIEW APPROPRIATE IN THE ABSENCE OF PRESERVATION (SECOND DEPT))/PROBATION VIOLATION (DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO OBJECT TO THE PROCEDURE RE AN ALLEGED VIOLATION OF PROBATION AND DID NOT WAIVE HIS RIGHT TO A HEARING, APPELLATE REVIEW APPROPRIATE IN THE ABSENCE OF PRESERVATION (SECOND DEPT))/APPEALS (CRIMINAL LAW, PROBATION VIOLATION, DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO OBJECT TO THE PROCEDURE RE AN ALLEGED VIOLATION OF PROBATION AND DID NOT WAIVE HIS RIGHT TO A HEARING, APPELLATE REVIEW APPROPRIATE IN THE ABSENCE OF PRESERVATION (SECOND DEPT))

August 2, 2017

Appeals, Criminal Law

COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT.

The Third Department, vacating defendant’s guilty plea in the interest of justice, determined the judge did not adequately ensure defendant was aware of the rights he was giving up:

Defendant … contends that his guilty plea to criminal sale of a controlled substance in the third degree and violating his probation was not knowing, voluntary and intelligent because County Court failed to inform him of the constitutional rights he was waiving by pleading guilty. Although this contention is unpreserved for our review, inasmuch as he failed to make an appropriate postallocution motion … , we find that the error warrants reversal of the judgment in the interest of justice … .

“While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights”… . During the plea allocution, County Court merely asked whether defendant understood “what the attorneys have told me about you waiving your rights and entering pleas of guilty to a felony, violation of probation and all of that stuff” and whether defendant had “[a]ny questions at all regarding you giving up your rights to a jury trial, your rights to presumption of innocence, your rights to a violation of probation hearing, anything like that.” County Court further failed to ascertain whether defendant had discussed with counsel the trial-related rights being waiving by a guilty plea or its constitutional consequences. Rather, County Court simply inquired whether defendant “[had] the time, and did you talk to [counsel] regarding this case, the disposition, and anything else that is important to you, with respect to these charges” … . Additionally, County Court did not advise defendant of his rights or the consequences regarding an admission to violating probation … , including that he understood that he was entitled to a hearing on the issue and that he was waiving that right … . “With no affirmative showing on the record that defendant understood and waived his constitutional rights when he entered the guilty plea, the plea was invalid and must be vacated” … . People v Aubain, 2017 NY Slip Op 05632, 3rd Dept 7-13-17

CRIMINAL LAW (COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)/APPEALS (INTEREST OF JUSTICE JURISDICTION, COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)/GUILTY PLEA (COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)

July 13, 2017

Appeals, Criminal Law

FAILURE TO FOLLOW PROCEDURE FOR SENTENCING A SECOND FELONY OFFENDER RENDERED THE SENTENCE ILLEGAL, SENTENCE CANNOT STAND DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL 4TH DEPT.

Although the issue was not raised on appeal, the Fourth Department determined the failure to follow the procedure for sentencing a second felony offender required resentencing:

We address the illegality of “the sentence . . . despite defendant’s failure to raise the issue in the trial court or on appeal” … . The presentence report available to the court and uncontested by the parties at sentencing indicates that defendant had been convicted of a prior felony for which he may have been sentenced within the 10-year period preceding commission of the first count of CSCS in the third degree, as tolled by Penal Law § 70.06 (1) (b) (v) and excluding from that statutory period the time during which defendant was incarcerated on the prior felony … . Where, as here, “information available to the court or to the [P]eople prior to sentencing for a felony indicate[d] that . . . defendant may have previously been subjected to a predicate felony conviction” … , “the People were required to file a second felony offender statement in accordance with CPL 400.21 and, if appropriate, the court was then required to sentence defendant as a second felony offender” … The People nevertheless failed to file a second felony offender statement herein, and the court illegally sentenced defendant, a known predicate felon, as a first felony drug offender … . Moreover, as the People correctly concede, if defendant was properly sentenced as a first felony drug offender, the imposition of three years of postrelease supervision is illegal because the applicable period for such an offender upon conviction of a class B felony is “not less than one year and no more than two years” … . Inasmuch as we cannot allow an illegal sentence to stand, we modify the judgment by vacating the sentence imposed, and we remit the matter to County Court for the filing of a predicate felony offender statement and resentencing in accordance with the law. People v Mattice, 2017 NY Slip Op 05558, 4th Dept 7-7-17

CRIMINAL LAW (SENTENCING, SECOND FELONY OFFENDER, FAILURE TO FOLLOW PROCEDURE FOR SENTENCING A SECOND FELONY OFFENDER RENDERED THE SENTENCE ILLEGAL, SENTENCE CANNOT STAND DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL 4TH DEPT)/APPEALS (SENTENCING, SECOND FELONY OFFENDER, FAILURE TO FOLLOW PROCEDURE FOR SENTENCING A SECOND FELONY OFFENDER RENDERED THE SENTENCE ILLEGAL, SENTENCE CANNOT STAND DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL 4TH DEPT)/SENTENCING (SECOND FELONY OFFENDER, FAILURE TO FOLLOW PROCEDURE FOR SENTENCING A SECOND FELONY OFFENDER RENDERED THE SENTENCE ILLEGAL, SENTENCE CANNOT STAND DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL 4TH DEPT)/SECOND FELONY OFFENDERS (FAILURE TO FOLLOW PROCEDURE FOR SENTENCING A SECOND FELONY OFFENDER RENDERED THE SENTENCE ILLEGAL, SENTENCE CANNOT STAND DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL 4TH DEPT)

July 7, 2017

Appeals, Civil Procedure

ACTION SEEKING INJUNCTION WAS NOT STARTED WITH A SUMMONS AND COMPLAINT, COURTS DID NOT HAVE JURISDICTION OVER THE MATTER, THE PAPERS WERE NOT APPEALABLE 4TH DEPT.

The Fourth Department determined that the town’s attempt obtain an injunction requiring respondents to tear down structures which violated the zoning code was invalid. The action was brought by an order to show cause, but no summons or complaint had been filed. Therefore the courts did not have jurisdiction over the matter:

“[T]he valid commencement of an action is a condition precedent to [Supreme Court’s] acquiring the jurisdiction even to entertain an application for a[n] . . . injunction”… . Here, however, there is no action supporting the application for an injunction. Indeed, the order to show cause and supporting papers themselves constitute the only request for an injunction. While ” courts are empowered and indeed directed to convert a civil judicial proceeding not brought in the proper form into one which would be in proper form, rather than to grant a dismissal’ “… , more than improper form is involved here … . Converting the order to show cause and supporting papers into a summons and complaint in these circumstances would effectively permit the Town to seek an injunction by motion, a result that is at odds with the well-established principle that “[t]he pendency of an action is an indispensable prerequisite to the granting of a[n] . . . injunction” … . We thus conclude that the court lacked jurisdiction to entertain the Town’s request … . Without an underlying action the order putatively on appeal does not constitute an appealable paper… . The appeal must therefore be dismissed. Matter of Town of Cicero v Lakeshore Estates, LLC, 2017 NY Slip Op 05524, 4th Dept 7-7-17

CIVIL PROCEDURE (ACTION SEEKING INJUNCTION WAS NOT STARTED WITH A SUMMONS AND COMPLAINT, COURTS DID NOT HAVE JURISDICTION OVER THE MATTER, THE PAPERS WERE NOT APPEALABLE 4TH DEPT)/APPEALS (ACTION SEEKING INJUNCTION WAS NOT STARTED WITH A SUMMONS AND COMPLAINT, COURTS DID NOT HAVE JURISDICTION OVER THE MATTER, THE PAPERS WERE NOT APPEALABLE 4TH DEPT)/INJUNCTIONS (ACTION SEEKING INJUNCTION WAS NOT STARTED WITH A SUMMONS AND COMPLAINT, COURTS DID NOT HAVE JURISDICTION OVER THE MATTER, THE PAPERS WERE NOT APPEALABLE 4TH DEPT)/JURISDICTION (SUMMONS AND COMPLAINT, ACTION SEEKING INJUNCTION WAS NOT STARTED WITH A SUMMONS AND COMPLAINT, COURTS DID NOT HAVE JURISDICTION OVER THE MATTER, THE PAPERS WERE NOT APPEALABLE 4TH DEPT)

July 7, 2017

Appeals, Criminal Law

DEFENDANT WAS ERRONEOUSLY TOLD HE COULD APPEAL THE GRAND JURY EVIDENCE ISSUES AFTER ENTERING A GUILTY PLEA, HIS MOTION TO WITHDRAW HIS PLEA UPON LEARNING OF THE ERROR SHOULD HAVE BEEN GRANTED.

The Fourth Department determined defendant’s motion to withdraw his guilty plea should have been granted. Defendant was told he could appeal the court’s ruling that the grand jury minutes constituted legally sufficient evidence of the charges in the indictment. However the denial of a motion to dismiss arguing the insufficiency or inadmissibility of the grand jury evidence is not appealable after a guilty plea:

We agree with defendant … that the court erred in denying his motion to withdraw his plea of guilty. “A trial court is constitutionally required to ensure that a defendant, before entering a guilty plea, has a full understanding of what the plea entails and its consequences” … . It is nevertheless well established that a guilty plea is not invalid merely because the court “failed to specifically enumerate all the rights to which the defendant was entitled and to elicit from him or her a list of detailed waivers before accepting the guilty plea” … . Where the record establishes, however, that the court incorrectly advised the defendant of the consequences of his guilty plea, the resulting plea “must be vacated because it was not knowingly, intelligently and voluntarily entered” … .

Here, the court incorrectly advised defendant with respect to the rights that defendant was forfeiting in pleading guilty. It is well established that a defendant who pleads guilty may not challenge on appeal the sufficiency or the admissibility of the evidence before the grand jury … . The record establishes, however, that defendant asked to be assured that he could raise those issues on appeal from a judgment entered upon his plea of guilty, and the court assured him that he could do so. Given those assurances, which ended up being false, defendant accepted the plea deal, and entered a guilty plea. When defendant learned that he would not be able to raise on appeal the above grand jury issues, he made a motion to withdraw his plea, which the court denied. Under the circumstances, that was error. People v Colon, 2017 NY Slip Op 05343, 4th Dept 6-30-17

June 30, 2017

Appeals, Criminal Law

MULTIPLICITOUS COUNTS OF SEX OFFENSE INDICTMENT DISMISSED IN THE INTEREST OF JUSTICE, THE COUNTS CHARGED SINGLE UNINTERRUPTED OFFENSES WHICH SHOULD NOT HAVE BEEN SPLIT INTO TWO COUNTS EACH.

The Fourth Department, in the interest of justice, determined several counts of the sex offense indictment were multiplicitous and therefore must be dismissed. The defendant was charged with two counts for single uninterrupted events, touching the victim’s vagina while simultaneously having the victim touch his penis:

An indictment is multiplicitous “when a single offense is charged in more than one count”… . A person commits the criminal offense of sexual abuse in the first degree when he or she subjects a person under 11 years old to sexual contact … . Nevertheless, a defendant may not be charged with separate counts of sexual abuse in the first degree for each instance of unlawful sexual contact where the instances of sexual contact constitute “a single, uninterrupted criminal act” … . Here, for each instance of defendant touching a victim’s vagina, defendant was properly charged with a single and distinct count. By contrast, for each instance of defendant compelling a victim to touch his penis while defendant was simultaneously touching that victim’s vagina, defendant was charged with two separate counts. Charging two separate counts under those facts was improper inasmuch as the actions alleged in each pair of counts constituted a single, uninterrupted criminal act. We thus conclude that the indictment was multiplicitous, and we therefore dismiss counts 2, 5, 13 through 17, and 25 through 28 of indictment No. 5548 … . People v Sprague, 2017 NY Slip Op 05347, 4th dept 6-30-17

June 30, 2017

PEOPLE DEMONSTRATED INVENTORY SEARCH WAS VALID, DESPITE EXPECTATION CONTRABAND WOULD BE FOUND, CREDIBILITY OF POLICE WITNESSES BEYOND REVIEW BY COURT OF APPEALS (CT APP).

PROOF DID NOT JUSTIFY ASSESSMENT FOR DRUG AND ALCOHOL USE, RISK LEVEL REDUCED IN THE INTEREST OF JUSTICE (SECOND DEPT).

FAILURE TO FOLLOW O’RAMA PROCEDURE FOR JURY NOTES REQUIRED REVERSAL, MODE OF PROCEEDINGS ERROR DID NOT REQUIRE PRESERVATION (SECOND DEPT).

LETTERS PURPORTING TO CONSTITUTE TIME OF THE ESSENCE NOTICE DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH CAN SUPPORT A MOTION TO DISMISS, ALTHOUGH NOT RAISED BELOW THE DOCUMENTARY EVIDENCE ISSUE WAS A PROPER BASIS FOR REVERSAL ON APPEAL (SECOND DEPT).

DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO OBJECT TO THE PROCEDURE RE AN ALLEGED VIOLATION OF PROBATION AND DID NOT WAIVE HIS RIGHT TO A HEARING, APPELLATE REVIEW APPROPRIATE IN THE ABSENCE OF PRESERVATION (SECOND DEPT).

COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT.

FAILURE TO FOLLOW PROCEDURE FOR SENTENCING A SECOND FELONY OFFENDER RENDERED THE SENTENCE ILLEGAL, SENTENCE CANNOT STAND DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL 4TH DEPT.

ACTION SEEKING INJUNCTION WAS NOT STARTED WITH A SUMMONS AND COMPLAINT, COURTS DID NOT HAVE JURISDICTION OVER THE MATTER, THE PAPERS WERE NOT APPEALABLE 4TH DEPT.

DEFENDANT WAS ERRONEOUSLY TOLD HE COULD APPEAL THE GRAND JURY EVIDENCE ISSUES AFTER ENTERING A GUILTY PLEA, HIS MOTION TO WITHDRAW HIS PLEA UPON LEARNING OF THE ERROR SHOULD HAVE BEEN GRANTED.

MULTIPLICITOUS COUNTS OF SEX OFFENSE INDICTMENT DISMISSED IN THE INTEREST OF JUSTICE, THE COUNTS CHARGED SINGLE UNINTERRUPTED OFFENSES WHICH SHOULD NOT HAVE BEEN SPLIT INTO TWO COUNTS EACH.

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