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THE TRIAL JUDGE DID NOT PROCEED TO STEP THREE OF THE BATSON ANALYSIS OF THE PEOPLE’S PEREMPTORY CHALLENGE TO A JUROR; MATTER REMITTED FOR THAT PURPOSE (THIRD DEPT).

The Third Department, remitting the matter for findings on the Batson analysis of the People’s peremptory challenge to a juror, determined the judge did not follow the three-step procedure mandated by Batson. Defense counsel met the criteria for the initial step by noting that the juror appeared to be the only person of Hispanic descent on the jury (both defendant and the victim were of Hispanic descent) and the prosecutor had not asked the juror a single question. The prosecutor met the criteria for the second step by arguing the juror was laughing and would not take the case seriously. It was up to the judge at that point to evaluate defense counsel’s argument that the prosecutor’s reason was pretextual. The matter was sent back for the judge’s ruling on step three:

This record confirms that the court made only a step one decision, and did not make any determination on the issue of pretext, implicit or otherwise … .

This is a critical error because “[a] trial court that resolves a Batson challenge without proceeding to [the] third step ‘falls short of [providing] a meaningful inquiry into the question of discrimination’ ” … .* * *

The trial court’s role in the analysis is particularly important where, as here, the race-neutral reasons proffered by the People were based upon the challenged juror’s demeanor — an issue that Supreme Court was in a unique position to verify and which is not clearly established in the appellate record … . Given the failure to abide by the Batson protocol, we withhold decision and remit this case to Supreme Court to enable the trial judge who presided over this matter to determine “whether the race-neutral reason proffered by [the People] was pretextual”  … . People v Cruz, 2024 NY Slip Op 03108, Third Dept 6-6-24

Practice Point: Here, the judge’s failure to make a finding whether the prosecutor’s reason for a peremptory juror-challenge was pretextual (the third step in the Batson protocol) resulted in remittal for that purpose.

 

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HERE THE PEOPLE’S FAILURE TO PROVIDE TEN-DAY’S NOTICE THEY WERE SEEKING A HIGHER SORA RISK LEVEL THAN THAT RECOMMENDED BY THE BOARD WARRANTED A REDUCTION FROM LEVEL THREE TO TWO; DEFENSE COUNSEL’S REPLY TO THE LATE NOTICE DID NOT WAIVE THE REQUIREMENT (FIRST DEPT).

The First Department, reducing defendant’s SORA risk level from three to two, determined (1) the defendant was not given the requisite 10-day notice of the prosecutor’s intent to seek a higher risk level than that recommended by the Board, and (2) defense counsel’s reply to the late notice by the prosecutor did not waive the 10-day notice requirement:

We agree with defendant that he was denied due process because the People did not provide written notice of its intent to seek a determination different than that recommended by the Board “at least ten days prior to the determination proceeding” (Correction Law § 168-n[3] …). The People sent defense counsel a letter stating their intent to seek a risk level three adjudication, different from the Board’s recommendation of risk level two, less than 10 days in advance of the hearing. … [T]he People indicated in their letter only that they were seeking additional point assessments and did not apprise counsel that they were also requesting an upward departure … . … [T]he People announced their intention to seek an upward departure for the first time at the court’s invitation during the SORA hearing.

Defendant’s right to timely notice was not waived by his counsel’s letter, in response to the People’s, that counsel was willing to go forward with the hearing if the prosecutor delivered to counsel by the next day the evidence that the People intended to use at the hearing. Nothing in the record indicates that the prosecutor complied with this condition. Moreover, because the People did not announce an intention to seek an upward departure, any waiver would not have embraced that request. People v Tookes, 2024 NY Slip Op 03095, First Dept 6-6-24

Practice Point: The People must provide defendant ten-day’s notice of their intent to seek a higher SORA risk level than that recommended by the Board.

Practice Point: The People should not wait until the SORA hearing to announce they are seeking an upward departure.

 

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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS GUILTY PLEA; DEFENDANT DEMONSTRATED DEFENSE COUNSEL PROVIDED ERRONEOUS INFORMATION ABOUT THE DEPORTATION CONSEQUENCES OF THE PLEA; AND DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER HE WOULD HAVE DECIDED AGAINST PLEADING GUILTY HAD HE BEEN GIVEN ACCURATE INFORMATION ABOUT THE RISK OF DEPORTATION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his guilty plea on the ground his attorney provided erroneous information about the deportation consequences of the plea. In addition to showing defense counsel’s advice was wrong, defendant raised a question of fact whether it was reasonably probable he would not have pled guilty if he had been correctly advised about the risk of deportation:

… [T]rial counsel erroneously advised defendant that he “could . . . be deported” if he were to be “incarcerated for any extensive amount of time,” but, if he were sentenced to “probation,” defendant would not be deported. “These advisements were erroneous, and … defense counsel readily could have ascertained — simply from a reading of the relevant statutes — that defendant’s plea to criminal possession of a controlled substance in the third degree rendered deportation presumptively mandatory and rendered defendant ineligible for cancellation of an order of removal” … . …

… [D]efendant averred in his CPL 440.10 motion that, at the time of his plea, he had resided in the United States for over 20 years and that he “financially supported the mother of his child, as well as her two older children from a prior relationship.” Given his family circumstances and their dependency upon him, defendant averred that, had he received correct advice about pleading guilty to an aggravated felony for purposes of immigration, he “would have rejected the plea offer, proceeded to trial, or sought other alternative plea options.” These allegations “raise a question of fact as to whether it was reasonably probable that he would not have entered a plea of guilty if he had been correctly advised of the deportation consequences of the plea” … . People v Pinales-Harris, 2024 NY Slip Op 02844, Third Dept 5-23-24

Practice Point: If, in the papers supporting a motion to vacate the guilty plea, a defendant shows defense counsel provided erroneous information about the deportation consequences of the guilty plea, and raises a question of fact whether it is reasonably probable he would not have pled guilty had the correct information been provided, he is entitled to a hearing on the motion.

 

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THE RECORD WAS NOT SUFFICIENT TO EVALUATE THE CLAIM DEFENSE COUNSEL’S FAILURE TO IMPEACH THE DETECTIVE’S TESTIMONY WITH AN INCONSISTENT STATEMENT CONCERNING THE IDENTIFICATION OF DEFENDANT AMOUNTED TO INEFFECTIVE ASSISTANCE; DEFENSE COUNSEL’S “PRE-PEOPLE V BOONE” FAILURE TO REQUEST A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION DID NOT AMOUNT TO INEFFECTIVE ASSISTANCE (CT APP).

he Court of Appeals, affirming defendant’s conviction, over a concurring opinion, determined the record was not sufficient to demonstrate defense counsel’s failure to impeach the defective’s testimony with inconsistencies concerning the identification of defendant amounted to ineffective assistance.  And the failure to request the cross-racial identification jury instruction, at a time when the instruction was discretionary (before People v Boone, 30 NY2d 521 (2017)), did not amount to ineffective assistance:

We cannot conclude that counsel’s failure to impeach Detective Morales with his suppression hearing testimony that the victim was unsure if defendant was the gunman establishes ineffective assistance of counsel. “The lack of an adequate record bars review on direct appeal wherever the record falls short of establishing conclusively the merit of the defendant’s claim” … .

… [T]or the reasons set forth in People v Watkins (decided today), the failure to request a cross-racial identification instruction prior to this Court’s decision in People v Boone (30 NY3d 521 [2017]), which made such an instruction mandatory upon request, does not alone amount to ineffective assistance of counsel. People v Lucas, 2024 NY Slip Op 02843, CtApp 5-23-24

Practice Point: The record was insufficient to evaluate the claim that defense counsel was ineffective for failure to impeach the detective’s testimony with an inconsistent statement concerning the identification of the defendant.

Practice Point: At the time of this pre People v Boone trial a cross-racial identification jury instruction was discretionary. Defense counsel’s failure to request the charge did not amount to ineffective assistance.

 

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A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION IS NOW MANDATORY UPON REQUEST; AT THE TIME OF DEFENDANT’S TRIAL THE CHARGE WAS DISCRETIONARY; DEFENSE COUNSEL’S FAILURE TO REQUEST THE INSTRUCTION DID NOT AMOUNT TO CONSTITUTIONAL INEFFECTIVE ASSISTANCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, affirming defendant’s conviction, over a concurring opinion and two dissenting opinions, determined defense counsel’s failure to request a cross-racial identification jury instruction, which is now mandatory upon request (but was not at the time of trial), did not amount to constitutional ineffective assistance of counsel:

Defendant Mark Watkins contends that his trial counsel was ineffective for failing to request a cross-racial identification instruction at the close of his July 2017 trial. Under our decision in People v Boone—decided after Watkins’ trial—such an instruction is now mandatory upon request “when identification is an issue in a criminal case and the identifying witness and defendant appear to be of different races,” in light of the higher “likelihood of misidentification” and the “significant disparity between what the psychological research shows and what uninstructed jurors believe” regarding the impact of this cross-race effect (30 NY3d 521, 526, 528-529, 535-536 [2017]). At the time of Watkins’ pre-Boone trial, however, a defendant was not entitled to a cross-racial identification instruction upon request; rather, the charge was discretionary. Thus, counsel’s failure to request such a charge did not give rise to a single-error ineffective assistance of counsel claim. * * *

Today, as in Boone, we reiterate the importance of instructing jurors “to examine and evaluate the various factors upon which the accuracy of identification depends,” including the cross-racial nature, if applicable … . We continue to view the cross-racial identification charge as a powerful tool for assisting juries in determining whether there has been a mistaken identification, thereby reducing the risk of wrongful convictions caused by the cross-race effect. Still, Watkins has not shown that, as of July 2017, the failure to request a cross-racial instruction rendered his counsel’s performance constitutionally deficient … . People v Watkins, 2024 NY Slip Op 02842, CtApp 5-21-24

Practice Point: A cross-racial identification jury instruction is now mandatory upon request based upon the Court of Appeals’ 2017 ruling in People v Boone.

Practice Point: At the time of this 2017 trial, the cross-racial jury instruction was discretionary. Here defense counsel’s failure to request the charge did not rise to constitutional ineffective assistance.

Practice Point: It remains an open question whether the failure to request the charge in a post-Boone trial would amount to constitutional ineffective assistance.

 

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THE JUDGE’S PROVIDING A RACE-NEUTRAL REASON FOR THE PEOPLE’S PEREMPTORY CHALLENGE TO A JUROR, WHILE THE PROSECUTOR REMAINED SILENT, WAS REVERSIBLE ERROR (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing the Appellate Division, determined the judge’s providing a race-neutral reason for the People’s peremptory challenge of a juror, while the prosecutor remained silent, was reversible error:

Here, it is undisputed that defendant established a prima facie case of discrimination with respect to the prosecution’s exercise of a peremptory challenge against K.S., an African-American female, and that the burden then shifted to the prosecution to provide a race-neutral basis for its peremptory strike. The People failed to do so entirely … . Rather, the court stepped in to provide an explanation, speculating that the prosecution had gotten a “bad vibe” from K.S. regarding whether her prior jury service resulted in an acquittal. The prosecution remained silent. The court nevertheless ruled that the prosecution had “given a legitimate race neutral reason” for the strike.

This serious departure from the Batson framework was an error of the highest order. When the court supplied a race-neutral reason for the peremptory strike, it failed to hold the prosecution to its burden and instead, effectively became an advocate for the prosecution, thus abandoning its Batson-specific duty to “consider the prosecutor’s race-neutral explanations in light of all of the relevant facts and circumstances, and in light of the arguments of the parties” … . It is the nonmovant’s expressed explanation for its peremptory challenge—and whether such explanation is mere pretext for a race-based motive—not simply whether a race-neutral reason could theoretically exist—which is the focus of the Batson framework at steps two and three … . The court’s speculation as to the prosecution’s basis for the strike was irrelevant and deprived defendant of any meaningful way to demonstrate pretext in the face of the prosecution’s silence. People v Estwick, 2024 NY Slip Op 02768, CtApp 5-21-24

Practice Point: It is the prosecutor’s actual reason for a peremptory challenge which is required under Batson, not the theoretical existence of a race-neutral reason. Therefore the Batson procedure is violated where, as here, the judge steps in to provide a reason while the prosecutor remains silent.

 

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HERE THERE WAS NO VALID REASON TO DENY DEFENDANT’S REQUEST TO REPRESENT HIMSELF; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined defendant’s request to represent himself should have been granted:

The court deprived defendant of his constitutional right to self-representation when it denied defendant’s motion to proceed pro se despite defendant’s knowing and voluntary waiver of his right to counsel. A defendant may invoke the right to self-representation where “(1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” … . Here, defendant made a timely and unequivocal request to represent himself, and during an extensive inquiry, at which time the court repeatedly warned defendant of the dangers and disadvantages of proceeding pro se, defendant affirmed that he understood the risks and insisted on representing himself at trial … . Defendant’s lack of familiarity with the law was not a proper basis for the denial of his motion … . Further, nothing in the record indicates that defendant’s motion was calculated to undermine or delay the progress of the trial— indeed, the court determined that defendant was not malingering—and defendant’s purported “outbursts” during two prior pretrial video conferences did not suggest an intent to disrupt the proceedings … . People v Ivezic, 2024 NY Slip Op 02785, First Dept 5-21-24

Practice Point: A defendant’s lack of knowledge of the law is not a valid reason for denying defendant’s request to represent himself at trial.

 

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THE DA HANDLING THE APPEAL WAS A LAW CLERK TO THE JUDGE WHO PRESIDED OVER THE TRIAL; THE CONFLICT OF INTEREST REQUIRES THE APPOINTMENT OF A SPECIAL PROSECUTOR FOR THE APPEAL (THIRD DEPT).

The Third Department determined the District Attorney handling the appeal had a conflict of interest because she was a law clerk to the County Court judge who presided over the trial. A special prosecutor must be appointed to handle the appeal:

During oral argument on this appeal, the Chief Assistant District Attorney (hereinafter ADA) who appeared on behalf of the People confirmed that she served as the confidential law clerk to the County Court Judge who presided over this matter and did so at the time of the underlying trial. Oral argument was permitted to proceed on the merits, but the Court directed the parties to submit letter briefs addressing the impact, if any, of the ADA’s prior position on her ability to represent the People on appeal. Two days later, this Court handed down People v Pica Torres (___ AD3d ___, 2024 NY Slip Op 02345, *1-2 [3d Dept 2024]), which determined that a similar conflict situation required the appointment of a special prosecutor to handle the appeal. In her responding letter brief, the ADA acknowledges that she was personally and substantially involved in this matter as the trial judge’s law clerk, raising a conflict of interest under Rule 1.12 of the Rules of Professional Conduct (see Rules of Prof Conduct [22 NYCRR 1200.00] rule 1.12 [d] [1]). In her responding letter, counsel for defendant acknowledges that the appointment of a special prosecutor is required. Given the foregoing, we remit the matter for the expeditious appointment of a special prosecutor to handle this appeal. People v McNealy, 2024 NY Slip Op 02728, Third Dept 5-16-24

Practice Point: If the DA handling the appeal was a law clerk to the judge presiding over the trial there is a conflict of interest requiring the appointment of a special prosecutor for the appeal.

 

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MOTHER’S INCONSISTENT STATEMENTS AND EVASIVE TESTIMONY DID NOT AMOUNT TO “FRIVOLOUS CONDUCT” WARRANTING THE AWARD OF ATTORNEY’S FEES AS A SANCTION (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should not have awarded petitioner attorney’s fees as a sanction against mother based on mother’s testimony in the proceedings: Mother’s conduct was not “frivolous” within the meaning of 22 NYCRR 131-1.1(a):

Pursuant to 22 NYCRR 130-1.1(a), the court is authorized to award a party in a civil action “reasonable attorney’s fees . . . resulting from frivolous conduct.” Conduct is frivolous if “(1) it is completely without merit in law and cannot be supported by a reasonable argument for the extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” … . “A party seeking the imposition of a sanction or an award of an attorney’s fee pursuant to 22 NYCRR 130-1.1(c) has the burden of demonstrating that the conduct of the opposing party was frivolous within the meaning of the rule” … .

Here, the petitioner failed to demonstrate that the mother engaged in frivolous conduct within the meaning of the rule. Contrary to the Family Court’s determination, the mother’s inconsistent statements and evasive testimony were not frivolous conduct within the meaning of 22 NYCRR 130-1.1 … . Matter of Edwin C. v Fenny C., 2024 NY Slip Op 02700,, Second Dept 5-15-24

Practice Point: Here in this Family Court proceeding petitioner was awarded attorney’s fees as a sanction pursuant to 22 NYCRR 131-1.1(a) based on mother’s “inconsistent statements” and “evasive testimony.” Mother’s conduct was not “frivolous” within the meaning of 22 NYCRR 131-1.1(a). The petition should not have been granted.

 

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