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CRIMINAL POSSESSION OF A WEAPON SECOND DEGREE IS AN ARMED FELONY FOR SENTENCING PURPOSES IF THE FIREARM IS LOADED AND OPERABLE (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Centra, diverging from the First Department, determined criminal possession of a weapon second degree can constitute possession of a deadly weapon within the definition of an armed felony if the firearm is loaded and operable:

We disagree with the reasoning in Ochoa [182 AD3d 410, 1st Dept 2020] only to the extent that it held that all convictions of criminal possession of a weapon in the second degree for possessing a loaded firearm are not armed felonies. It is apparent that where a defendant possesses a firearm that is actually loaded with ammunition and is capable of being fired, he or she possesses a deadly weapon and is guilty of an armed felony offense. We conclude that it is appropriate to look at the particular facts of each case to determine whether the defendant is guilty of an armed felony. For example, a person is guilty of robbery in the first degree under Penal Law § 160.15 (2) when he or she commits a robbery while armed with a deadly weapon, which, as noted, includes a switchblade knife or a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged (§ 10.00 [12]). To determine if the defendant committed an armed felony, courts look to the definition of deadly weapon as that phrase is used in the definition of armed felony, which excludes knives. Thus, where a defendant is convicted of robbery in the first degree for the use of a knife, that is not an “armed felony” … . Where, however, the robbery is committed with a loaded, operable firearm, it is an “armed felony” (see People v Jiminez, 165 AD2d 692, 692-693 [1st Dept 1990] … ). In Jiminez, the Court held that “[s]ince defendant pleaded guilty to committing first degree robbery while armed with a pistol he was properly sentenced as an armed felony offender” … , despite the fact that a first-degree robbery conviction is not always an armed felony. Just as courts look to the definition of deadly weapon as that phrase is used in the definition of armed felony to determine that knives are excluded therefrom, so too should courts look to whether the firearm fits within that definition, i.e., a firearm that is actually loaded and capable of being fired. People v Meridy, 2021 NY Slip Op 02894, Fourth Dept 5-7-21

 

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THE PROSECUTOR VIOLATED THE CRIMINAL PROCEDURE LAW BY REFUSING TO INFORM THE GRAND JURY THE DEFENDANT REQUESTED THE TESTIMONY OF TWO WITNESSES; HOWEVER THE PROSECUTORIAL MISCONDUCT DID NOT WARRANT DISMISSAL OF TWO COUNTS OF THE INDICTMENT; COUNTY COURT REVERSED (FOURTH DEPT). ​

The Fourth Department, reversing County Court, in a People’s appeal, determined the district attorney violated the Criminal Procedure Law by refusing to tell the grand jury defendant had requested that two witnesses give testimony, but the violation did not warrant dismissal of two counts of the indictment. The decision includes a detailed discussion of the district attorneys duties and discretion with respect to a defendant’s request for witness testimony before a grand jury:

… [A] prosecutor may not “suppress[ a] defendant’s request to call . . . witness[es] nor strip[ ] the grand jury of its discretion to grant or deny that request” … . Instead, “[a]lthough [a] prosecutor [cannot] avoid presenting [a requested] witness’s name for a vote, the prosecutor [is] free, in the role of advisor to the grand jury, to explain that the witness [does] not have relevant information [or] primarily offer[s] inadmissible hearsay testimony, and if unpersuasive in this effort, the prosecutor [may seek] a court order quashing the subpoena or limiting the witness’s testimony as provided in CPL 190.50 (3)” … . … [T]he court properly determined that the People, despite their stated concerns about the admissibility of the proposed testimony, violated their statutory obligation by refusing to present to the grand jury defendant’s request that two of the vehicle’s other occupants be called as witnesses. * * *

We … conclude that “this was not one of the rare cases of prosecutorial misconduct entitling a defendant to the exceptional remedy of dismissal, because there is no showing that, in the absence of the complained-of misconduct, the grand jury might have decided not to indict the defendant” … . … [T]he People did not engage in an overall pattern of willful and pervasive misconduct; instead, the failure to present defendant’s request for witnesses to the grand jury constituted an isolated instance of misconduct involving, at worst, the erroneous handling of an evidentiary matter, which “do[es] not merit invalidation of the indictment” … . People v Wilcox, 2021 NY Slip Op 02893, Fourth Dept 5-7-21

 

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THE EVIDENCE OF ESCAPE IN THE FIRST DEGREE WAS LEGALLY INSUFFICIENT; DEFENDANT WAS NOT YET IN CUSTODY WHEN HE DROVE AWAY AS A POLICE OFFICER ATTEMPTED TO PULL HIM FROM HIS CAR (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of escape in the first degree, determined defendant was not yet in custody when he drove away as a police officer attempted to pull him from his car:

… [D]efendant contends that the evidence is legally insufficient to support the conviction of escape in the first degree. We agree. Here, a police officer informed defendant that he was under arrest and attempted to pull him from the driver’s seat of a vehicle, at which time defendant drove off, dragging officers across a parking lot. Under these circumstances, we conclude that defendant was not in custody at the time of the alleged escape … . People v Bagley, 2021 NY Slip Op 02964, Fourth Dept 5-7-21

 

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THE ARGUMENT THAT THE PROBATION OFFICER’S SEARCH OF DEFENDANT’S RESIDENCE WAS UNLAWFUL AND UNREASONABLE BECAUSE IT WAS BASED SOLELY ON AN UNCORROBORATED ANONYMOUS TIP WAS NOT PRESERVED FOR APPEAL, THE DISSENT DISAGREED; DEFENDANT DID NOT DEMONSTRATE DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESERVE THE ISSUE (FOURTH DEPT).

The First Department, over a dissent, determined the issue whether the probation officer’s search of defendant’s residence was improperly based solely on an anonymous tip was not preserved for appeal. In addition, the defendant did not demonstrate defense counsel was ineffective for failing to preserve the issue. The dissent argued the record did not support the motion court’s finding the warrantless search was lawful and reasonable:

Contrary to defendant’s contention, he did not preserve that issue for our review through either that part of his omnibus motion seeking to suppress the evidence or his posthearing memorandum. A question of law with respect to a ruling of a suppression court is preserved for appeal when “a protest thereto was registered, by the party claiming error, at the time of such ruling . . . or at any subsequent time when the court had an opportunity of effectively changing the same . . . , or if in response to a protest by a party, the court expressly decided the question raised on appeal” (CPL 470.05 [2] …). In his omnibus motion, defendant sought, inter alia, suppression of the evidence seized during the search on the ground that the evidence “was taken in violation of . . . defendant’s constitutional rights” inasmuch as it was done without “a search warrant or probable cause.” Those “broad challenges” are insufficient to preserve defendant’s present contention … . In defendant’s posthearing memorandum, he argued that the search was invalid because there was no warrant or consent to search, that the search was not rationally related to the duties of the officer, and that the parole officers were acting as police officers when conducting the search. He did not raise his present contention that the People were required to prove that the information provided to the officer satisfied the Aguilar-Spinelli test in order for the search to be lawful, even though he was then aware of the basis for the search … . Nor did the court expressly decide that issue … . People v Murray, 2021 NY Slip Op 02896, Fourth Dept 5-7-21

 

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THERE WAS INSUFFICIENT EVIDENCE DEFENDANT PARTICIPATED IN THE MUGGING, INSUFFICIENT EVIDENCE THE VICTIM SUFFERED PHYSICAL INJURY, AND INSUFFICENT EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED THE VICTIM’S WALLET AND CELL PHONE (THIRD DEPT).

The Third Department, reversing defendant’s convictions, determined the convictions were not supported by legally sufficient evidence and were against the weight of the evidence. The victim said he was mugged by three men and his wallet and cell phone were stolen. The police were able to track the cell phone and, based on the tracking device, stopped a car 30 to 40 minutes after the mugging. There were four men, including defendant, in the car. The other three men in the car pled guilty. The wallet and cell phone were found in the car. The evidence that defendant participated in the mugging was insufficient, the evidence the victim suffered physical injury was insufficient, and the evidence defendant constructively possessed the wallet and cell phone was insufficient:

… [W]e find that the People failed to prove, beyond a reasonable doubt, defendant’s identity as one of the perpetrators of the robbery and assault.  * * *

Given the paucity of proof regarding the victim’s injuries, we agree with defendant that the evidence fails to establish that the victim suffered a physical injury within the meaning of Penal Law § 10.00 (9) … . * * *

… [T]he … circumstantial evidence falls short of proving, beyond a reasonable doubt, that defendant constructively possessed the wallet and the credit and debit cards contained therein or that any such possession was knowing. Although the testimony demonstrated that the wallet was found somewhere in the back seat, there was no other evidence connecting defendant to the stolen property or demonstrating his awareness of its presence inside the vehicle. … [T]he victim asserted that there were three black males involved in the robbery and assault and there were four black males in the vehicle when it was stopped some 30 to 40 minutes afterward, leaving open the possibility that one of the passengers entered the vehicle after the robbery and assault … . People v Green, 2021 NY Slip Op 02841, Third Dept 5-6-21

 

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ALTHOUGH THE RESPONDENT-SEX-OFFENDER WAS PROPERLY ALLOWED TO REPRESENT HIMSELF IN THE CIVIL COMMITMENT PROCEEDING, HE SHOULD NOT BE ALLOWED TO CROSS-EXAMINE THE WITNESSES WHO WERE VICTIMS OF HIS SEX OFFENSES (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, reversing Supreme Court, determined the respondent-sex-offender in this civil commitment proceeding, who was properly allowed to represent himself with a Mental Hygiene Legal Service (MHLS) attorney as stand-by counsel, should not be allowed to cross-examine the witnesses who had been victims of the respondent’s offenses. The cross-examination should be done by stand-by counsel:

… [A]llowing respondent to personally conduct the cross-examinations of the victim witnesses could thwart or impair petitioner’s ability to sustain its burden of proof by causing the witnesses to back out of testifying or by causing a “chilling effect” on their testimony. Moreover, petitioner has a compelling interest in protecting the victim witnesses from any possible retraumatization resulting from respondent personally conducting cross-examinations of them.

Upon balancing the foregoing Mathews factors, we find that, to the extent that respondent has a due process right to self-representation, such right does not entitle him to personally conduct the cross-examinations of the victim witnesses whom he was adjudicated or alleged to have victimized. Thus, notwithstanding respondent’s pro se status, the cross-examinations of the victim witnesses must be conducted by respondent’s standby counsel (MHLS) or, should respondent prefer, other court-appointed counsel. Matter of State of N.Y. v John T., 2021 NY Slip Op 02862, Third Dept 5-6-21

 

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THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT PROVIDES NO BROADER SCOPE FOR THE SEARCH THAN WOULD A WARRANT ISSUED BASED ON THE SAME FACTS; HERE THE SMALL AMOUNT OF MARIJUANA ON THE CONSOLE OF DEFENDANT’S CAR DID NOT PROVIDE PROBABLE CAUSE TO SEARCH THE TRUNK WHERE A FIREARM WAS FOUND (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, reversing Supreme Court and holding that decisions to the contrary should no longer be followed, determined the odor of marijuana smoke and the small about of marijuana on the console of the defendant’s car did not, pursuant to the automobile exception to the warrant requirement, justify the full search of the trunk of the car. Therefore the firearm found in the trunk should have been suppressed:

… “[T]he automobile exception. . . is an exception only to the warrant requirement; it does not, in contrast to the search-incident-to-arrest exception, dispense with the requirement that there be probable cause to search the vehicle” … . * * *

We are left with the question of whether the presence of a small amount of marijuana consistent with personal use provided the requisite probable cause and nexus to justify a search of the trunk. We find that in this case it did not. The only reasonable conclusion supported by the evidence here was that the de minimis amount of unburnt marijuana was for personal use, not for distribution or trafficking. The officer did not find any drug paraphernalia in the car. Indeed, in this case, there was “scant evidence of drugs in the car” … , and there was no probable cause to believe there was contraband in the trunk of the car. Therefore, because a proper search pursuant to the automobile exception “is no narrower-and no broader-than [sic] the scope of a search authorized by a warrant supported by probable cause, [and] otherwise is as the magistrate could authorize” … , we find that here the search of the trunk was not supported by probable cause. Consequently, the gun found therein, and the statements made by defendant thereafter, should have been suppressed. People v Ponder, 2021 NY Slip Op 02880, First Dept 5-6-21

 

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A VALID WAIVER OF APPEAL PRECLUDES AN APPEAL ALLEGING THE VIOLATION OF DEFENDANT’S RIGHT TO AN OPPORTUNITY TO MAKE A PERSONAL STATEMENT AT SENTENCING (CT APP).

The Court of Appeals, in a brief memorandum decision, over an extensive two-judge dissent, determined a waiver of appeal precluded an appeal alleging the violation of defendant’s right to an opportunity to make a personal statement at sentencing:

… [D]efendant’s contention that his CPL 380.50(1) right to an opportunity to make a personal statement at sentencing was violated is not reviewable because such a claim did not survive the valid appeal waiver. Although the statutory right is “deeply rooted” and “substantial,” its value is largely personal to defendant … . Defendant’s claim does not fall among the narrow class of nonwaivable defects that undermine “the integrity of our criminal justice system . . . [or] implicate . . . a public policy consideration that transcends the individual concerns of a particular defendant to obtain appellate review” … . Moreover, despite defendant’s arguments to the contrary, a valid unrestricted waiver of appeal elicited during a plea proceeding can preclude appellate review of claims that have “not yet reached full maturation,” including those arising during sentencing … , nor is this challenge to presentence procedures reviewable under the illegal sentence exception … . People v Brown, 2021 NY Slip Op 02867, CtApp 5-6-21

 

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THE USE OF TRANSLATORS TO DOCUMENT INFORMATION IN AN ACCUSATORY INSTRUMENT DID NOT RENDER THE INSTRUMENTS FACIALLY INSUFFICIENT BY ADDING A LAYER OF HEARSAY (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge dissent, determined that the use of translators in documenting information in an accusatory instrument did not create an additional layer of hearsay. The three accusatory instruments at issue, therefore, were deemed facially sufficient. Two of the accusatory instruments did not refer to the use of a translator, and the third did:

… “[I]n evaluating the sufficiency of an accusatory instrument,” a court does “not look beyond its four corners (including supporting declarations appended thereto)” ( … see CPL 100.15 [3]; 100.40 [1] [c] …). Courts must “not rely on external factors to create jurisdictional defects not evident from the face of the” accusatory instrument … . Instead, “[w]hether the allegation of an element of an offense is hearsay, rendering the information defective, is to be determined on a facial reading of the accusatory instrument” … ..

Defects that do not appear on the “the face of the” accusatory instrument are “latent deficienc[ies]” that do not require dismissal … . * * *

We conclude that, when evaluating the facial sufficiency of an accusatory instrument, no hearsay defect exists where … the four corners of the instrument indicate only that an accurate, verbatim translation occurred, and the witness or complainant adopted the statement as their own by signing the instrument after the translation … . People v Slade, 2021 NY Slip Op 02866, CtApp 5-6-21

 

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THE FAILURE TO REQUEST A DOWNWARD DEPARTURE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE; THE DISSENT DISAGREED (SECOND DEPT).

The Second Department, over a dissent, determined counsel’s failure to ask for a downward departure in the SORA risk level assessment proceeding did not amount to ineffective assistance of counsel:

Assuming arguendo that in hindsight, the defendant’s counsel, instead of simply opposing the People’s request for an upward departure from the Board’s assessment of points, also should have expressly argued for a downward departure from the assessment of points contained in the People’s RAI, the omission was not so egregious or prejudicial as to deprive the defendant of the effective assistance of counsel … . The defendant has neither demonstrated the absence of a strategic or other legitimate explanation for counsel’s failure to request a downward departure, nor even addressed that issue in the pro se supplemental brief, as is necessary to sustain an ineffectiveness claim … . Further, depictions on the defendant’s phone included young girls who were toddlers to age seven, including those engaged in sexual intercourse and oral sex with men. Under these circumstances, a downward departure would not have been appropriate given “the number and nature of the images possessed by the defendant” … . People v Carman, 2021 NY Slip Op 02834, Second Dept 5-5-21

 

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