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DEFENSE COUNSEL WAS DEEMED INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR’S REPEATED PREJUDICIAL REMARKS MADE TO PROSPECTIVE JURORS (TO THE EFFECT “I CAN SLEEP AT NIGHT BECAUSE I AM NO LONGER A DEFENSE ATTORNEY”), AND FOR AGREEING TO THE JUDGE’S REQUEST TO HAVE THE TWO SIDES ALTERNATE GOING FIRST IN EXERCISING PEREMPTORY JUROR CHALLENGES (IN VIOLATION OF THE CRIMINAL PROCEDURE LAW) (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, reversed defendant’s conviction on ineffective-assistance grounds. Defense counsel did not object to the prosecutor’s repeated statements to prospective jurors that he can sleep at night because he is a prosecutor and no longer a defense attorney. Defense counsel agreed to alter the statutory peremptory juror-challenge procedure, which requires that the People must exercise their peremptory challenges first. Defense counsel agreed to alternate which side went first:

The first error occurred during voir dire when defense counsel failed to object to patently improper comments from the prosecutor regarding his ability to sleep at night now that he is a prosecutor and no longer a defense attorney. Perhaps it was a legitimate strategy for defense counsel not to object to the first improper comment of that nature given that defense counsel may not have wanted to draw more attention to the prejudicial comment. For the same reason, defense counsel might be excused for not objecting when the prosecutor repeated the comment to the same group of prospective jurors. We can discern no legitimate strategy, however, for defense counsel to remain quiet when the prosecutor made the same comment for the third, fourth and fifth times during voir dire. At some point, defense counsel was obligated to protect defendant from the prejudice arising from the repeated acts of prosecutorial misconduct and, at the very least, request a curative instruction from the court.

Defense counsel also erred in not objecting—and, indeed, consenting—to the court’s unlawful procedure of having the parties alternate which side went first in declaring whether they wished to exercise a peremptory challenge to a particular prospective juror. CPL 270.15 (2) provides that the People “must exercise their peremptory challenges first and may not, after the defendant has exercised [the defendant’s] peremptory challenges, make such a challenge to any remaining prospective juror who is then in the jury box.” After the court stated that its practice was to have parties alternate their exercise of peremptory challenges, defense counsel, evidently unaware of the statute’s mandate, said, “I’ll go first. He can go first. I don’t care.” As a result, on numerous occasions during voir dire defense counsel stated whether or not she was peremptorily challenging a prospective juror before the prosecutor was required to state his position.

Although the court’s violation of CPL 270.15 (2) does not constitute a mode of proceedings error, it was certainly prejudicial to defendant and we can conceive of no legitimate strategy for defense counsel’s acquiescence to the unlawful procedure. Viewing the evidence, the law and the circumstances of this case in totality and as of the time of the representation, “[o]ur review of this record indicates that defendant was not afforded meaningful representation and was therefore deprived of a fair trial” … . People v Stewart, 2024 NY Slip Op 04863, Fourth Dept 10-4-24

Practice Point: Although it is not a mode of proceedings error to alternate which side goes first in exercising peremptory challenges to prospective jurors in violation of the criminal procedure law, here defense counsel’s agreement to the procedure was deemed ineffective assistance of counsel and a new trial was ordered.

 

DEFENDANT WAS CHARGED WITH PREDATORY SEXUAL ASSAULT AGAINST A CHILD, A CLASS A-II FELONY PUNISHABLE BY A MANDATORY MAXIMUM TERM OF LIFE IMPRISONMENT; PURSUANT TO CRIMINAL PROCEDURE LAW 195.10[1][B] DEFENDANT CANNOT WAIVE INDICTMENT AND PLEAD TO A SUPERIOR COURT INFORMATION (SCI) (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction by guilty plea to a superior court information (SCI), determined defendant could not waive indictment to an A felony for which a life sentence is available:

CPL 195.10 provides, in relevant part, that a defendant may waive indictment and consent to be prosecuted pursuant to an SCI where “the defendant is not charged with a class A felony punishable by death or life imprisonment” (CPL 195.10 [1] [b] …). Predatory sexual assault against a child is a class A-II felony and “is punishable by an indeterminate sentence with a mandatory maximum term of life imprisonment” (… Penal Law §§ 70.00 [2] [a]; 130.96). Hence, consistent with both CPL 195.10 and prevailing case law, a waiver of indictment “is not available where the defendant is charged with a class A felony” … . Defendant’s waiver of indictment was therefore “expressly prohibited under CPL 195.10 and . . . invalid, rendering the resulting procedure employed to procure defendant’s guilty plea unauthorized” … .  Accordingly, defendant’s guilty plea must be vacated and the SCI dismissed … . People v White, 2024 NY Slip Op 04850, Third Dept 10-3-24

Practice Point: A defendant cannot waive indictment and plead to a superior court information (SCI) when charged with an A-II felony punishable by an indeterminate sentence with a mandatory maximum term of life imprisonment.

 

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THE FACT THAT THE POLICE WERE AWARE THE VAN THEY STOPPED HAD REPORTEDLY BEEN INVOLVED IN TWO PRIOR INCIDENTS—(1) A ROAD RAGE SHOOTING AND (2) NEARLY RUNNING OVER A TRAFFIC AGENT ABOUT TO ISSUE A PARKING TICKET—PROVIDED REASONABLE SUSPICION SUPPORTING THE LEVEL THREE TRAFFIC STOP, DESPITE THE FACT THE POLICE DID NOT KNOW WHO WAS DRIVING THE VAN DURING THE PRIOR INCIDENTS (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice O’Neill, affirming defendant’s conviction, over an extensive dissent, determined the police had reasonable suspicion supporting a level three traffic stop. The registration number of the van defendant was driving had been the subject of police reports for two prior incidents, a road rage incident during which a firearm was discharged, and nearly running a traffic agent over when the agent was about to place a parking ticket on the van. When the van was stopped, the driver was asked to step out of van because of the firearm incident. Defendant refused to get out and picked up a firearm. One of the officers tased the defendant three times and he was arrested:

A forceable stop and detention is authorized “[w]here a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor” … .

“Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand. To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion” … .

Here, before stopping the van, the BOLO [be-on-the-lookout] alert notified Officers Amaral and Stokes of the criminal activity involving the van on April 28th; the officers were also aware of the May 17th incident because they both responded to the traffic enforcement agent’s call for backup. The officers’ knowledge of either incident alone furnished reasonable suspicion of criminal activity at hand … . People v Zubidi, 2024 NY Slip Op 04824, First Dept 10-3-24

Practice Point: Here the fact that defendant’s van had reportedly been involved in a road rage shooting and had nearly run over a traffic agent about to issue a parking ticket provided reasonable suspicion justifying a level three traffic stop, despite the fact that the identity of the driver involved in the prior incidents was not known at the time of the stop.

 

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THE PORTION OF THE CORRECTION LAW WHICH REQUIRED DEFENDANT BE DESIGNATED A “SEXUALLY VIOLENT OFFENDER,” BASED UPON AN OHIO TELEPHONE-SOLICITATION OFFENSE WHICH DID NOT INVOLVE VIOLENCE, IS UNCONSTITUTIONAL AS APPLIED TO DEFENDANT (FOURTH DEPT).

The Fourth Department, reversing County Court, over a dissent, determined the portion of “Correction Law § 168-a (3) (b), which defines a ‘sexually violent offense’ as a ‘conviction of a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred'” is unconstitutional as applied to defendant. Defendant pled guilty to an Ohio offense which prohibits “soliciting” a person 13 to 15 years old by telephone. Violence is not an element of the Ohio offense:

… [W]e conclude that defendant established that he is an “individual[ ] . . . for whom the [sexually violent] offender designation ‘is unmerited’ ” … because the out-of-state conviction was “not sexual[ly violent] in nature and his conduct provides no basis to predict risk of future sexual[ly violent] harm” … . * * *

… [W]e conclude that, as applied to him, the designation of defendant as a sexually violent offender pursuant to the second disjunctive clause of Correction Law § 168-a (3) (b) “unconstitutionally impacts defendant’s liberty interest in a criminal designation that rationally fits his conduct and public safety risk” … . People v Brightman, 2024 NY Slip Op 04654, Fourth Dept 9-27-24

Practice Point: Here the Correction Law required that defendant be designated a “sexually violent offender” based on an Ohio conviction for telephone solicitation of a person between 13 and 15 which did not involve violence. That portion of the Correction Law was deemed unconstitutional as applied to the defendant.

 

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DEFENDANT PLED GUILTY TO THE SEXUAL ABUSE OF HIS GIRLFRIEND’S DAUGHTER; THE GIRLFRIEND ALLEGED SHE WAS UNABLE TO WORK BECAUSE OF THE RESULTING STRESS AND SOUGHT RESTITUTION FOR UNPAID RENT AND HOUSEHOLD EXPENSES; THE CLAIM FOR LOST WAGES WAS NOT DIRECTLY CAUSED BY DEFENDANT’S OFFENSES (FOURTH DEPT).

The Fourth Department modified the judgment by eliminating the restitution aspect of the sentence. The ordered restitution was not directly caused by defendant’s offenses. Defendant pled guilty to sexual abuse of his girlfriend’s daughter:

The girlfriend requested restitution for the unpaid balance of rent for the house she had shared with defendant and for a bill for garbage and recycling collection that was not yet due. The People argued that the girlfriend was entitled to restitution for those expenses because, according to the girlfriend’s statements, defendant’s offenses caused the victim emotional and psychological harm and caused the girlfriend stress that resulted in serious health issues and several hospitalizations, all of which rendered her unable to work, thereby ultimately resulting in financial hardship and her inability to pay the claimed household expenses. The court, over defense counsel’s objection that the claimed expenses were not directly caused by defendant’s offenses, imposed the requested restitution. That was error.

“Penal Law § 60.27 (1) addresses the related concepts of restitution and reparation, allowing a court to order a defendant to ‘make restitution of the fruits of [their] offense or reparation for the actual out-of-pocket loss caused thereby’ ” … . Restitution and reparation may be required for expenses that “were not voluntarily incurred, but stem from legal obligations that are directly and causally related to the crime” … . Conversely, the statute “does not impose a duty on the defendant to pay for the costs associated [ ]with . . . expenses [that] are not directly caused by the defendant’s crime” … .

Here, we conclude that the claimed expenses do not constitute “actual out-of-pocket loss caused” by defendant’s offenses (Penal Law § 60.27 [1]) inasmuch as the girlfriend’s unpaid rent and utility bill are costs “not directly caused by . . . defendant’s crime[s]” … . Contrary to the People’s assertion, the girlfriend’s request did not constitute a claim for lost wages directly caused by defendant’s offenses … . People v Figueroa, 2024 NY Slip Op 04691, Fourth Dept 9-27-24

Practice Point: Restitution applies only to expenses or losses “directly caused by defendant’s offenses.” Here defendant pled guilty to sexual abuse of his girlfriend’s daughter. The girlfriend alleged she could not work because of the resulting stress and was unable to pay her rent. That loss was not “directly caused by defendant’s offenses” and, therefore, restitution was not available for the girlfriend’s lost wages.

 

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THE SENTENCING JUDGE MUST “PRONOUNCE SENTENCE ON EACH COUNT;” MATTER REMITTED FOR RESENTENCING (FOURTH DEPT).

The Fourth Department affirmed defendant’s conviction but noted that the judge should have “pronounced sentence on each count” and remitted the matter for resentencing:

… [T]he court erred in failing to “pronounce sentence on each count” of the conviction (CPL 380.20 …).  Although the uniform sentence and commitment form states that defendant was sentenced on each count to concurrent terms of incarceration of five years with three years of postrelease supervision, the court in fact did not “impose a sentence for each count of which defendant was convicted” … . We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing.  People v Gause, 2024 NY Slip Op 04686, Fourth Dept 9-27-24

Practice Point: Sentence must be “pronounced on each count.”

 

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THE APPELLATE COURTS HAVE THE “INTEREST OF JUSTICE” POWER TO REDUCE AN OTHERWISE LEGAL AND APPROPRIATE SENTENCE WHEN THE DEFENDANT IS SERIOUSLY MENTALLY ILL; HERE THE MAJORITY CHOSE NOT TO REDUCE THE SENTENCE; A STRONG TWO-JUSTICE DISSENT ARGUED FOR A REDUCTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Shulman, over an extensive two-justice dissent, affirmed defendant’s conviction by guilty plea to attempted murder and declined to reduce the eight-year sentence in the interest of justice. Defendant is seriously mentally ill and has endured almost indescribable hardships throughout his life, which are detailed in the dissent. The underlying question here is, given the prison system’s inability to properly care for the seriously mentally ill, should the appellate court exercise its power to reduce this defendant’s sentence in the interest of justice. The majority answered “no” and the dissent argued “yes.” The opinion is far too detailed to fairly summarize here:

From the dissent:

… [R]esearch … demonstrates that people with serious psychiatric needs are more likely to be violently victimized and housed in segregation while in prison. That research also shows that the vast majority of people with mental illness in jails and prisons do not receive care, and for those that do, the care is generally inadequate.… This is of particular concern given [defendant’s] history of suicide attempts … .

This case raises an important question: What is the utility of extended incarceration under the present circumstances? Specifically, where, among other things, the offense occurred during a time when [defendant] had been unmedicated for five days and, moreover, the record suggests—as evidenced by [defendant’s] comments to the police when arrested and a subsequent mental examination—that his severe mental illness contributed to what is his first and only criminal conviction. People v Paulino, 2024 NY Slip Op 04625, First Dept 9-26-24

Practice Point: The appellate courts have the “interest of justice” power to reduce an otherwise appropriate sentence based upon a defendant’s mental illness.

 

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DEFENDANT WAS ENTITLED TO NOTICE COUNTY COURT INTENDED TO RELY ON FAMILY COURT RECORDS WHEN CONSIDERING DEFENDANT’S APPLICATION FOR RECLASSIFICATION AS A LEVEL-ONE SEX OFFENDER; THE THIRD DEPARTMENT NOTED THAT THE PROPER INQUIRY IS WHETHER RECLASSIFICATION IS WARRANTED BY A CHANGE IN CONDITIONS, NOT WHETHER THERE IS SUPPORT FOR THE INITIAL LEVEL-TWO CLASSIFICATION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to be notified of County Court’s intention to rely on Family Court records in considering defendant’s application to be reclassified as a level one sex offender. The matter was remitted for a new hearing:

Upon his release from incarceration in 2003, defendant was classified as a risk level two sex offender and designated a sexually violent offender. In 2020, defendant applied, for the fifth time, for a modification of his risk level classification pursuant to Correction Law § 168-o (2), seeking to be reclassified as a risk level one sex offender as his conditions have changed subsequent to the initial risk level classification given, among other things, that he has remained arrest free, successfully completed sex offender treatment while incarcerated and gained custody of his daughter, which helped him understand the impact of his underlying criminal actions. * * *

In discrediting defendant’s sworn statements in support of his application and in finding his statements to be misleading, County Court relied heavily upon various Family Court proceedings, including neglect proceedings as far back as 2012, and a family offense petition containing allegations against defendant [*2]that were subsequently withdrawn. The court detailed the allegations in the petitions, finding that the allegations contradicted defendant’s sworn statements in his application and that, by excluding such information from his sworn affidavit, defendant attempted to mislead the court. Defendant was not given an opportunity to respond to or defend himself against consideration of such information. * * *

… Contrary to County Court’s finding here, the proper level of review is not whether there is clear and convincing evidence to support defendant’s initial risk level classification, but rather, whether defendant has met his burden of establishing by clear and convincing evidence that a modification of his risk assessment level is warranted based upon a change in conditions. People v Johns, 2024 NY Slip Op 04640, Third Dept 9-26-24

Practice Point: In a SORA risk-level assessment proceeding, a defendant is entitled to timely notice of the court’s intention to rely on additional information of which defendant had not been made aware, here Family Court records.

Practice Point: When a defendant applies for reclassification of his sex offender risk level status (here from level two to level one), the court’s inquiry should be confined to whether a change in conditions warrants reclassification, not whether the original classification was justified.

 

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COUNTY COURT, SUA SPONTE, IN GRANTING THE PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE, RELIED ON FACTORS ABOUT WHICH THE DEFENDANT WAS NOT NOTIFIED BEFORE THE SORA HEARING; MATTER REMITTED FOR A NEW HEARING AFTER PROPER NOTICE (THIRD DEPT).

The Third Department, reversing County Court, determined the SORA court should not have, sua sponte, relied on factors for which defendant was not provided notice in granting the People’s request for an upward department. The matter was remitted:

County Court sua sponte relied upon certain additional factors for which defendant was not provided any notice — namely, that the points assessed under factor 4 did not adequately account for defendant’s prolonged course of conduct that continued over 21 months; that defendant was not scored any points under factor 7, which did not take into account defendant’s relationship with the mother of the victim that was arguably established or promoted for the primary purpose of victimizing the mother’s child; and that defendant’s psychiatric conditions and history increase his risk of reoffending.

With regard to these three additional areas of concern noted by County Court, “defendant was entitled to a sufficient opportunity to consider and muster evidence in opposition to the request for an upward departure” on the specific bases upon which County Court would rely in considering that relief … . “As defendant did not have notice or a fair opportunity to present arguments and evidence pertaining to those factors in the context of whether upward departure from the presumptive classification was warranted, the matter must be remanded for a new hearing, upon proper notice to defendant of the justifications relied upon by the People [and/or court] specific to their request for such relief” … . People v Furgeson, 2024 NY Slip Op 04644, Third Dept 9-26-24

Practice Point: A defendant is entitled to prior notice of the factors which will be considered by the court during a SORA risk-level assessment proceeding.​

 

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A DEFENDANT, AS PART OF A NEGOTIATED PLEA AGREEMENT, MAY WAIVE A HEARING SEEKING A REDUCED SENTENCE PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dowling, affirming defendant’s sentence after a guilty plea, determined that a hearing pursuant to the Domestic Violence Survivors Justice Act (DVSJA) seeking a reduced sentence can be waived. Therefore defendant’s negotiated plea agreement, which required her waiver of a DVSLA hearing, was valid:

… Penal Law § 60.12 contains no language requiring a sentencing court to hold a DVSJA hearing in every case containing allegations that the defendant is a victim of domestic violence, regardless of whether a hearing was requested, prior to announcing sentence. A defendant wishing to avail himself or herself of the possibility of a reduced sentence must instead request a DVSJA hearing to determine his or her eligibility before the sentencing court … . Where a DVSJA hearing is held, Penal Law § 60.12 provides that the court “may” apply the alternative sentencing scheme if the stated factors are established by the defendant. This permissive language reflects the Legislature’s intent that sentencing under Penal Law § 60.12 be an option exercised in the sentencing court’s discretion … . People v Hudson, 2024 NY Slip Op 04571, Second Dept 9-25-24

Practice Point: As part of a negotiated plea agreement, a defendant may waive a DVSJA reduced-sentence-eligibility hearing.

 

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