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THE JUDGE IN THIS SORA RISK-LEVEL PROCEEDING DID NOT MAKE DETAILED FINDINGS OF FACT, REQUIRING REMITTAL; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, IN PART BECAUSE COUNSEL DID NOT ARGUE FOR A DOWNWARD DEPARTURE (THIRD DEPT).

The Third Department, reversing County Court’s level-three SORA risk-assessment, noted that the judge failed to set forth all of the relevant findings of fact and determined defense counsel was ineffective. Defense was not aware that youthful offender adjudications can be considered by the SORA court and defense counsel failed to argue for a downward departure. The departure would have been warranted because defendant, who was 17 at the time, had been charged with a misdemeanor based on having sex with his girlfriend:

Failure to comply with the statutory mandate to make detailed findings on the record would alone require that the matter be remitted to County Court … . * * *

The only argument advanced by defendant’s counsel at the SORA hearing was a challenge to the assessment of 30 points under risk factor 9, on the basis that a youthful offender adjudication should be precluded in assessing defendant’s sex offender classification. That argument, however, was devoid of merit … , and demonstrated counsel’s unfamiliarity with existing and applicable case law … . * * *

… [Counsel] did not request a downward departure from the presumptive risk level three classification. The crime underlying the youthful offender adjudication was the class A misdemeanor of sexual misconduct … , stemming from defendant, who had just turned 17, having sexual intercourse with his girlfriend, who was about two months younger. Downward departure has been found appropriate where there is a “relatively slight age difference between [the] defendant and the victim [and] undisputed evidence that the victim’s lack of consent was premised only on her inability to consent by virtue of her age” … . Notwithstanding facts and case law that could support a reasonable argument for a downward departure here, counsel failed to make such a request. In our view, the foregoing establishes that defendant was deprived of the effective assistance of counsel … . People v Wilcox, 2023 NY Slip Op 06175, Third Dept 11-30-23

Practice Point: The judge in a SORA risk-level proceeding is required to make detailed findings of fact.

Practice Point: Defense counsel in a SORA risk-level proceeding is ineffective if counsel is not aware youthful offender adjudications can be considered by the SORA court.

 

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THE PROSECUTOR REFUSED TO PARTICIPATE IN THE MURDER TRIAL ARGUING THAT THE JUDGE’S PRECLUSION OF EVIDENCE MADE THE PROSECUTION IMPOSSIBLE; IN THE PROSECUTOR’S ABSENCE AT TRIAL, THE JUDGE DISMISSED THE INDICTMENT PURSUANT TO CPL 290.10; THE JUDGE DID NOT HAVE AUTHORITY TO DISMISS THE INDICTMENT; WRIT OF PROHIBITION GRANTED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Aarons, issued a writ of prohibition against the respondent County Judge nullifying the order dismissing the murder indictment against defendant. The petitioner was the district attorney (DA) who was prosecuting defendant. The DA disagreed with certain preclusion orders issued by the Judge and argued the prosecution of the defendant was rendered impossible by the preclusion of evidence. The DA refused to participate in the trial. At trial, in the DA’s absence, the Judge dismissed the indictment pursuant to Criminal Procedure Law (CPL) 290.10. Because such a dismissal requires a trial as a prerequisite, and because there was no trial, the Third Department held the Judge did not have the authority to dismiss the indictment:

Upon a criminal defendant’s motion, a court may dismiss any count of an indictment on the basis that the trial evidence was not legally sufficient to establish the charged crime (see CPL 290.10 [1] [a]). Critically, a court is empowered to do so “[a]t the conclusion of the [P]eople’s case or at the conclusion of all the evidence” (CPL 290.10 [1]). Based on this language, a dismissal under CPL 290.10 contemplates, at the very least, that a prosecutor actually present a case. This did not occur in the underlying criminal proceeding. Petitioner did not deliver an opening statement, did not call witnesses and did not tender documentary evidence to be received by respondent. Without a case by petitioner, respondent could not dismiss the indictment under CPL 290.10 … . In essence, the dismissal of the indictment was due to the default of petitioner, which respondent lacked authority to do … . Matter of Clegg v Rounds, 2023 NY Slip Op 06181, Third Dept 11-30-23

Practice Point: If the prosecutor refuses to participate in the trial, the judge cannot dismiss the indictment pursuant to CPL 290.10. The statute requires a trial as a prerequisite. Here there was no trial. The prosecutor’s petition for a writ of prohibition against the judge was granted. The “trial” was nullified.

 

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THE JUDGE DID NOT INCLUDE FINDINGS OF FACT IN THE SORA RISK-ASSESSMENT ORDER; THE ATTORNEY GENERAL WAS NOT NOTIFIED OF DEFENDANT’S CONSTITUTIONAL ARGUMENTS; ORDER REVERSED (THIRD DEPT).

The Third Department, reversing County Court, determined County Court’s order failed to included the required findings of fact. In addition, the Attorney General should have been notified of defendant’s constitutional arguments:

County Court’s order failed to set forth its findings of fact and conclusions of law as required by Correction Law § 168-n (3). The March 2022 order states that at a hearing held on an unspecified date, the court “set out its findings of fact . . . which support the assignment of points for each risk factor.” No such findings are set forth in the order and, if placed on the record at the hearing, no hearing transcript is contained in the record. Absent any record findings of fact and conclusions of law by the court, this Court is precluded from conducting a meaningful appellate review of the assessment of points and defendant’s risk level classification. As such, the matter must be remitted … . Further, to the extent that defendant raises direct constitutional challenges to certain portions of Correction Law § 168, as set forth in his memorandum submitted to County Court, the record is devoid of any indication that the Attorney General was timely notified of such challenges or whether the court ruled on any of the issues raised. In view of the foregoing, County Court’s March 30, 2022 order is reversed and the matter remitted for further proceedings. People v Kelsey, 2023 NY Slip Op 06186, Third Dept 11-30-23

Practice Point: The Correction Law requires that an order in a SORA risk-level proceeding include findings of fact.

Practice Point: Where a defendant raises constitutional arguments in a SORA risk-level proceeding, the Attorney General must be notified.

 

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PETITIONER-REPORTER PREVAILED IN THE FOIL ACTION DESPITE THE AVAILABILITY OF SOME OF THE REQUESTED INFORMATION ON A PUBLIC WEBSITE; THEREFORE PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AND LITIGATION COSTS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined petitioner-reporter’s request for an unredacted telephone directory for employees of the county police department should have been granted because the county did not demonstrate the information was exempt from disclosure. In addition, petitioner should have been awarded attorney’s fees and litigation costs because petitioner had prevailed in the FOIL action. The fact that some of the requested information (names and salaries of police officers, for example) was available on a public website, to which petitioner was referred, did not warrant a finding petitioner had not prevailed:

… Supreme Court improperly, in effect, denied that branch of the petition which was to compel the production of a NCPD [Nassau County Police Department] telephone directory, without redactions, insofar as asserted against the County and the NCPD, as those respondents failed to demonstrate the applicability of an exemption to disclosure warranting redaction of the telephone directory …, which did not contain any personal telephone or cell phone numbers (see Public Officers Law § 89[2-b][b]). * * *

… [T]he petitioner substantially prevailed in this proceeding by obtaining a significant portion of the records and information responsive to the FOIL request after the commencement of the proceeding … . Contrary to the respondents’ contention, the purported public availability of the requested records and information does not preclude a determination that the petitioner substantially prevailed … . Moreover, the record reflects that the respondents did not have a reasonable basis for the initial denial of the petitioner’s FOIL request in its entirety … . Matter of Lane v County of Nassau, 2023 NY Slip Op 06139, Second Dept 11-29-23

Practice Point: Unless the municipality can show the information sought by a FOIL request is exempt from disclosure the information must be disclosed.

Practice Point: The fact that information sought in a FOIL request is available on a public website, to which the petitioner is referred, does not preclude a finding that petitioner prevailed in the FOIL proceeding.

 

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THE CIVIL RIGHTS LAW, NOT THE CPLR, CONTROLS COUNTERCLAIMS FOR ATTORNEY’S FEES AND PUNITIVE DAMAGES IN A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP) ACTION (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court in this Strategic Lawsuit Against Public Participation (SLAPP) proceeding, determined that the criteria for dismissal of counterclaims are those in the Civil Rights Law, not the CPLR:

In this Strategic Lawsuit Against Public Participation (SLAPP) action, the court’ s application of CPLR 3212(h) to the underlying summary judgment motion was improper, because the counterclaims “subject to the motion” were not SLAPP claims, but affirmative counterclaims for punitive damages and attorneys’ fees … .The award of attorneys’ fees and punitive damages in SLAPP actions are subject to their own statutory regime found in Civil Rights Law §§ 70-a and 76-a (anti-SLAPP statutes). The anti-SLAPP statutes contain their own requirements and evidentiary burdens that have nothing to do with CPLR 3212(h) … .

With respect to punitive damages, Civil Rights Law § 70-a(1)(c) provides that they may only be recovered upon “an additional demonstration” that the SLAPP action was commenced or continued for the sole purpose of “harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights.” Thus, when the court improperly applied the burden-shifting mechanism of 3212(h) to the punitive damages analysis, it effectively negated the requirement that defendants make this “additional demonstration.” …

With respect to attorneys’ fees, the pre-amendment version of Civil Rights Law § 70-a(1)(a) squarely put the burden of proof on the party advancing counterclaims to recover damages in the context of a SLAPP suit. As the November 2020 amendments to the anti-SLAPP statutes do not apply retroactively, this pre-amendment version of the statute applies … .

The pre-amendment version of Civil Rights Law § 70-a(1)(a) provided that “attorney’s fees may be recovered upon a demonstration . . . that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law.” Courts have held that attorneys’ fees are discretionary under the pre-amendment statutory framework, and that it is not necessary to award attorneys’ fees “in every situation in which [an anti-SLAPP] claim is interposed” … . … [W]e find that the court providently exercised its discretion in awarding attorneys’ fees here … . 161 Ludlow Food, LLC v L.E.S. Dwellers, Inc., 2023 NY Slip Op 06076, First Dept 11-28-23

Practice Point: The analysis of counterclaims for attorney’s fees and punitive damages in a SLAPP action is controlled by the Civil Rights Law, not the CPLR.

 

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THE CONCLUSIONS OF THE PEOPLE’S ACCIDENT-RECONSTRUCTION EXPERT (WHO WAS NOT CALLED TO TESTIFY AT TRIAL) WOULD HAVE HAD AN IMPACT ON THE CONCLUSIONS DRAWN BY THE DEFENSE ACCIDENT-RECONSTRUCTION EXPERT; WITHHOLDING THE EVIDENCE FROM THE DEFENSE WAS A BRADY VIOLATION REQUIRING REVERSAL AND A NEW TRIAL (THIRD DEPT).

The Third Department, reversing defendant’s vehicular homicide and manslaughter convictions and ordering a new trial, determined expert opinion evidence constituted Brady material which was wrongfully withheld from the defense. The People’s accident-reconstruction expert in question, who did not testify at the trial, was named Pinzer. The defense accident-reconstruction expert, named Silver, testified in the CPL 440 hearing that his opinion would have been influenced by Pinzer’s findings. The driver lost control of the car which flipped several times. The defendant survived and the other occupant was ejected from the car and died. The withheld expert evidence called into question various aspects of law enforcement’s investigation of the accident, the speed of the car at the time of the accident, for example:

Silver … testif[ied] at the hearing that, although knowledge of [Pinzer’s conclusions] would not have changed his ultimate conclusion as to who was operating the vehicle, it did have a direct and significant impact on his methodology and findings. For example, had he known that the data was corrupted, he would have performed his analysis differently and explained to the jury why law enforcement’s data was unreliable; he would have also been able to rebut any challenge to his credibility for the use of multiple formulas and his own data. He also averred that, in light of the new information regarding the data, his trial testimony as to the vehicle’s speed prior to the accident — 55 to 65 miles per hour — was overstated. * * *

… [I]n view of the character of the withheld information here, the misleading disclosure that was made, the manner in which the prosecutor elected to act on Silver’s testimony of defendant’s innocence and the circumstantial nature of this case, we agree with defendant that Pinzer’s opinion … must be considered favorable to the defense. * * *

… Pinzer was an arm of the prosecution, acting on the government’s behalf, and the People had a duty to learn of his opinion, which “directly relates to the prosecution or investigation of . . . defendant’s case” … . * * *

… [T]here was no reasonable possibility that the People’s failure to disclose Pinzer’s opinion did not impact the verdict … . The prosecutor’s cross-examination of Silver and his statements in summation — which sought to both bolster the legitimacy of police work that he should have known was faulty and impugn the credibility of Silver for not exclusively relying upon same — “compounded the prejudice” to defendant … . People v Hoffman, 2023 NY Slip Op 06004, Third Dept 11-22-23

Practice Point: Here, in this vehicular homicide case, the People did not disclose the conclusions reached by their accident-reconstruction expert, who was not called to testify at trial. The defense accident-reconstruction expert would have changed some of his conclusions had he been aware of the People’s expert’s analyses. Withholding the People’s expert’s findings from the defense was a Brady violation requiring reversal and a new trial.

 

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THE PETITIONER MAKING THE FOIL REQUEST IS A LAW FIRM; THE FACT THAT THE FIRM’S CLIENT ALSO HAD STANDING TO MAKE THE FOIL REQUEST DID NOT DEPRIVE THE LAW FIRM OF STANDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Article 78 proceeding contesting the denial of petitioner’s FOIL request should not have been dismissed for lack of standing. Petitioner is a law firm seeking information on behalf of a client. The fact that the client could also make the FOIL request did not deprive the law firm of standing:

Supreme Court erred in concluding that the petitioner lacked standing to pursue this proceeding. The petitioner submitted the FOIL request to the Agency and its request was denied, both initially and on administrative appeal. Since the petitioner’s FOIL request was denied, it had standing to seek judicial review of the Agency’s determination … , regardless of whether it submitted the FOIL request, in whole or in part, on behalf of a client … . The petitioner’s standing was not extinguished by the fact that its client also would have had standing to commence a proceeding challenging the denial of the FOIL request … . Matter of Law Offs. of Cory H. Morris v Suffolk County, 2023 NY Slip Op 06046, Second Dept 11-22-23

Practice Point: Here a law firm made FOIL requests that were denied. The law firm then brought an Article 78 proceeding which was erroneously dismissed for lack of standing. The fact that the firm’s client had standing to bring the FOIL proceedings did not deprive the law firm of standing.

 

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DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO REQUEST A JURY CHARGE ON THE ONLY DEFENSE AVAILABLE TO THE DEFENDANT; THREE JUDGE DISSENT FOCUSED ON THE WEAKNESS OF THE DEFENSE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Wilson, over a three-judge dissent, determined defendant did not receive effective assistance of counsel. Defendant was charged with criminal possession of a weapon. The weapon was discovered by a police officer under a floor mat in defendant’s car after a traffic stop. At trial defendant claimed he was stopped on his way to surrender the weapon to a gun buyback program. The majority concluded defense counsel was ineffective for failure to request the “voluntary surrender” jury charge. Defense counsel requested the “temporary and lawful possession” jury charge, which was directly contradicted by the trial evidence:

Here, counsel knew that his client’s explanation was that he was traveling to turn the gun in to the NYC gun buyback program. Indeed, in his opening statement, counsel admitted to the elements of the crime of criminal possession of a weapon and offered a defense, explaining that Mr. Debellis [defendant] , in desperate need of money, was transporting the gun to a police buyback program in the Bronx.

However, after announcing that line of defense and supporting it through Mr. Debellis’s trial testimony, counsel failed to request the only jury instruction that would give it any legal weight—a defense of voluntary surrender under PL 265.20 (a) (1) (f). Counsel premised his case instead on the common-law defense of temporary and lawful possession, which was completely inapplicable given the length of time Mr. Debellis had possessed the weapon in contravention of a preexisting court order that he had to divest himself of all firearms. Even after the court explicitly told counsel that that it would not instruct the jury on temporary and lawful possession because it did not fit the evidence, counsel failed to request an instruction on the statutory defense that fit his client’s testimony and counsel’s own argument to the jury

From the dissent:

Today the majority holds that defense counsel was ineffective for not requesting a jury charge that would have allowed the jury to find that defendant’s possession of the unlicensed gun was lawful because, at trial, defendant claimed for the first time that he was on his way to a police agency to surrender the gun. Because no reasonable view of the undisputed facts supports such a charge, defendant was not entitled to it. Nor was counsel’s overall performance deficient. Nevertheless, defendant, who denied having a weapon when asked by the police and who was allowed access to the area where he had hidden a loaded gun based on that false statement, thereby endangering the life of the officer who stopped him and numerous nearby civilians, now has his unlawful possession of a weapon conviction reversed by this Court. People v Debellis 2023 NY Slip Op 05964, CtApp 11-21-23

Practice Point: Here defense counsel did not request a jury charge for the only viable defense offered by the defendant in his trial testimony (i.e., he was on his way to surrender the weapon to the gun buyback program when the police found it under the floor mat of his car). The majority held defense counsel was ineffective. The dissent focused on the weakness of the defense. Bottom line, if the defendant has only one defense, even if it is not credible, defense counsel is obligated to present it to the jury.

 

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THE MAJORITY REJECTED THE ARGUMENT DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE A CONFRONTATION-CLAUSE CHALLENGE TO DNA EVIDENCE OFFERED BY A WITNESS WHO WAS NOT INVOLVED IN THE ANALYSIS OF THE DNA; STRONG, COMPREHENSIVE DISSENT (CT APP).

The Court of Appeals, over an extensive dissenting opinion, rejected defendant’s ineffective-assistance claim based upon defense counsel’s failure to raise a Confrontation Clause challenge to the admission of DNA evidence:

Defendant asserts that trial counsel rendered ineffective assistance by failing to argue that the admission into evidence of DNA reports through the testimony of an analyst who did not perform, witness or supervise the testing, or independently analyze the raw data, violated his constitutional right to confrontation. This argument is without merit. “Even assuming that counsel failed to assert a meritorious Confrontation Clause challenge, the alleged omission does not ‘involve an issue that [was] so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it'” … . Nor, on this record, has defendant demonstrated that the alleged error was not a matter of legitimate trial strategy … .

From the dissent:

At trial, the prosecution admitted two reports containing DNA analyses through a criminalist who testified, based on his review of the file prepared by another criminalist, that defendant’s DNA matched DNA on a screwdriver recovered from the scene of the break-in. This evidence was therefore admitted through a surrogate witness in violation of the Confrontation Clause … . The question on this appeal is whether defense counsel was ineffective for failing to raise a Confrontation Clause objection to this evidence’s admission. At the time of defendant’s trial, the law was sufficiently settled to support such an objection. Indeed, counsel recognized that the basis for the testifying criminalist’s conclusions was vulnerable to attack, as he asked the jury to reject those conclusions on the ground that the criminalist did not conduct the DNA testing. Given that the prosecution’s entire case rested upon this DNA evidence, counsel’s failure to challenge this evidence on Confrontation Clause grounds cannot be explained as a reasonable strategy. People v Espinosa, 2023 NY Slip Op 05971, CtApp 11-21-23

Practice Point: The majority concluded defense counsel’s failure to raise a confrontation-clause challenge to DNA evidence presented by a witness who was not involved in the DNA analysis did not constitute ineffective assistance. There was a strong, comprehensive dissent.

 

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DEFENDANT’S CHALLENGES TO RESTRICTIONS ON VOIR DIRE, HIS ARGUMENT A PRISON SENTENCE DURING COVID VIOLATED THE EIGHTH AMENDMENT, AND HIS CONSTITUTIONAL CHALLENGES TO NEW YORK’S WEAPONS-POSSESSION REGIME, REJECTED; THE DISSENT ARGUED THE PRESUMPTION OF AN INTENT TO USE AN UNLICENSED WEAPON IS UNCONSTITUTIONAL AND VOIR DIRE QUESTIONS RELATED TO GUN CONTROL AND JUSTIFICATION SHOULD HAVE BEEN ALLOWED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over an extensive dissent, rejected defendant’s challenges to his conviction:

Defendant George Garcia argues that his conviction for two counts of criminal possession of a weapon in the second degree … should be reversed because the trial court impermissibly limited questioning during voir dire. He also argues that his sentence—the statutory minimum term of 3½ years in prison—violates the Eighth Amendment given his risk of serious illness or death from COVID-19, and that the Appellate Division had the power to reduce his sentence below the statutory minimum. None of these contentions provides grounds for reversal. Garcia further argues for the first time in this Court that the statutory provisions under which he was convicted are unconstitutional in light of New York State Rifle & Pistol Assn., Inc. v Bruen, 142 S Ct 2111 (2022). These arguments are unpreserved, and for the reasons set forth in People v Cabrera (decided today), we do not reach them. * * *

From the dissent:

The presumption in Penal Law § 265.03 (1) (b) that unlicensed possession is evidence of intent to use the weapon unlawfully is unconstitutional and therefore defendant’s conviction on this count should be reversed and the count dismissed. Additionally, the court abused its discretion and prejudiced defendant by limiting defendant’s voir dire questions related to gun control and justification. Therefore, his conviction on the single other remaining charge should be reversed and a new trial ordered. People v Garcia, 2023 NY Slip Op 05969, CtApp 11-21-23

Practice Point: Constitutional arguments attacking New York’s weapons-possession regime were not preserved.

Practice Point: The Eighth Amendment challenge to a prison sentence during COVID rejected.

Practice Point: Challenges to restrictions on voir dire about gun control and justification rejected.

 

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