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MANSLAUGHTER FIRST DEGREE IS NOT AN “ARMED FELONY” WITHIN THE MEANING OF CRIMINAL PROCEDURE LAW 720.10; COUNTY COURT WAS REQUIRED TO DETERMINE WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter to County Court, determined County Court was required to decide whether defendant in this Manslaughter First Degree case should be afforded youthful offender status:

… [W]e note that defendant’s “waiver of his right to appeal was invalid . . . and, in any event, [would] not bar his contention that [County] Court failed to properly consider youthful offender treatment” … . On the merits, … the court erred in determining that he was ineligible for youthful offender status. … [M]anslaughter in the first degree is not an “armed felony” for purposes of CPL 720.10 (2) (a) (ii) … . Thus, defendant’s eligibility for youthful offender status did not turn … on the existence of a statutory mitigating factor enumerated in CPL 720.10 (3) … . Inasmuch as defendant is otherwise eligible for youthful offender status on this conviction (see CPL 720.10 [1], [2]), the court was obligated to make a discretionary youthful offender determination before imposing sentence (see CPL 720.20 [1] … ). We therefore hold the case, reserve decision, and remit the matter to County Court to make and state for the record a determination whether defendant should be afforded youthful offender status … . People v Graham, 2022 NY Slip Op 00784, Fourth Dept 2-4-22

 

THE LENGTH OF THE SENTENCE WAS NOT PRONOUNCED; RESENTENCING IS REQUIRED (THIRD DEPT).

The Third Department, reversing County County, determined the failure to pronounce the length of sentence required resentencing:

“CPL 380.20 requires that courts must pronounce sentence in every case where a conviction is entered. When the sentencing court fails to orally pronounce a component of the sentence, the sentence must be vacated and the matter remitted for resentencing in compliance with the statutory scheme” … . This statutory requirement is “unyielding” … . Here, although the term of imprisonment was recited — on the record and more than once — at the time of sentencing, County Court “did not pronounce the length of the term of [imprisonment] in open court” … . People v Belcher-Cumba, 2022 NY Slip Op 00691, Third Dept 2-3-22

 

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DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL; COUNSEL SAID A GUILTY PLEA MAY RESULT IN DEPORTATION WHEN DEPORTATION WAS MANDATORY (FIRST DEPT).

The First Department determined defendant did not receive effective assistance of counsel because he was told pleading guilty may result in deportation when deportation was mandatory:

The existing record sufficiently demonstrates that defendant was deprived of effective assistance of counsel (see Padilla v Kentucky, 559 US 356, 369, 374 [2010]) when his attorney failed to advise him that his guilty plea to a drug-related felony would result in mandatory deportation, and merely stated that “this may and probably will affect his immigration status” … . The appeal is held in abeyance to afford defendant the opportunity to move to vacate his plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea. People v Acosta, 2022 NY Slip Op 00737, First Dept 2-3-22

 

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DEFENDANT WAS ENTITLED TO A HEARING ON HER MOTION FOR RESENTENCING WHICH ALLEGED SHE WAS THE VICTIM OF DOMESTIC VIOLENCE AT THE TIME OF THE COMMISSION OF THE CRIME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on her motion for resentencing which alleged she was a victim of domestic violence at the time of the commission of the crime:

Provided that the defendant meets certain threshold eligibility requirements pertaining to, inter alia, the length of incarceration and the type of offense … , a defendant may move for resentencing in accordance with Penal Law § 60.12 (see CPL 440.47[1][c]). The motion itself … must make a preliminary evidentiary showing consisting of “at least two pieces of evidence corroborating the applicant’s claim that he or she was, at the time of the offense, a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of the same family or household as the applicant as such term is defined in” CPL 530.11(1) (CPL 440.47[2][c]). Furthermore, “[a]t least one piece of evidence must be either a court record, presentence report, social services record, hospital record, sworn statement from a witness to the domestic violence, law enforcement record, domestic incident report, or order of protection” … .

Here, the defendant’s evidence in support of her motion included affidavits of her sister and mother, as well as a purported transcription of her interrogation by the police. Together, this evidence corroborated her allegations that she was subjected to domestic violence by the codefendant at the time of the offense … , and that the defendant and the codefendant were “member[s] of the same family or household” … . People v Coles, 2022 NY Slip Op 00678, Second Dept 2-2-22

 

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THE STATE DID NOT DEMONSTRATE DEFENDANT WAS UNABLE TO CONTROL SEXUAL URGES, AS OPPOSED HAVING DIFFICULTY CONTROLLING SEXUAL URGES; THEREFORE CONFINEMENT IS NOT AN APPROPRIATE REMEDY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined petitioner did not demonstrate defendant was unable to control his sexual urges, as opposed to having difficulty controlling them. Therefore confinement of the defendant was not an appropriate remedy:

… [A] ” ‘[d]angerous sex offender requiring confinement’ ” is a sex offender “suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that [he or she] is likely to be a danger to others and to commit sex offenses if not confined” (Mental Hygiene Law § 10.03 [e]). The statutory scheme “clearly envisages a distinction between sex offenders who have difficulty controlling their sexual conduct and those who are unable to control it. The former are to be supervised and treated as ‘outpatients’ and only the latter may be confined” … . In other words, only where the offender is “presently ‘unable’ to control his [or her] sexual conduct” may he or she be confined under section 10.03 (e) … .

… [P]etitioner failed to meet its burden of proving, by clear and convincing evidence, that he is “presently ‘unable’ to control his sexual conduct” and is thus a dangerous sex offender requiring confinement … . Contrary to petitioner’s contention, the record does not establish that respondent touched an unknown adult female without her knowledge on an unknown date; rather, the record reflects only the possibility that such an act might have taken place. The balance of respondent’s alleged SIST [strict and intensive supervision and treatment] violations are technical missteps that do not evince an ” ‘inability’ ” to control sexual misconduct … . … [T]he report of petitioner’s expert failed to meaningfully address respondent’s successful integration into the community while on SIST. At most, petitioner established that respondent “was struggling with his sexual urges, not that he was unable to control himself” … , and that is legally insufficient to justify confinement under Mental Hygiene Law § 10.03 (e) … . Matter of State of New York v Scott M., 2022 NY Slip Op 00595, Fourth Dept 1-28-22

 

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THE IMPOSITION OF A FINE WAS NOT PART OF THE PLEA AGREEMENT; ALTHOUGH THE ISSUE WAS NOT PRESERVED, THE FINE WAS VACATED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing (modifying) County Court, determined the imposition of a fine was not part of the plea agreement and vacated that part of the sentence:

Defendant’s … contention that his guilty plea was not knowingly, intelligently, and voluntarily entered is actually a contention that County Court erred in imposing a $1,000 fine that was not part of the negotiated plea agreement without affording him an opportunity to withdraw his plea … . Although defendant failed to preserve his contention for our review by failing to object to the imposition of the fine or by moving to withdraw his plea or to vacate the judgment of conviction (see id.), we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] …). … [T]he court improperly enhanced defendant’s sentence by imposing “a fine that was not part of the negotiated plea agreement” … . … [W]e conclude that it is “appropriate to vacate the provision of the defendant’s sentence imposing a fine, so as to conform the sentence imposed to the promise made to the defendant in exchange for his plea of guilty” … . People v Wilson, 2022 NY Slip Op 00593, Fourth Dept 1-28-22

 

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DEFENDANT, WHO WAS CONVICTED OF STATUTORY RAPE (NO FORCE) WHEN HE WAS 18 IN 1996, SHOULD HAVE BEEN CLASSIFIED A LEVEL ONE, NOT LEVEL TWO, RISK (FOURTH DEPT).

The Fourth Department, reversing (modifying) County Court, determined defendant, who was convicted of statutory rape (no force) in 1996, should have classified as a level one risk, not level two:

Defendant appeals from an order classifying him as a level two sex offender stemming from his 1996 conviction in Virginia for the statutory rape of a 14-year-old female “without the use of force.” Defendant was 18 years old at the time of the offense, which the Board of Examiners of Sex Offenders characterized as an “isolated incident.” Defendant successfully completed both sex offender treatment and substance abuse treatment, and he has not been convicted of any other sex crime. Under these circumstances, we agree with defendant, in the exercise of our own discretion, that his presumptive level two classification overestimates his “dangerousness and risk of sexual recidivism” … . We therefore modify the order by determining that defendant is a level one risk … . People v Stevens, 2022 NY Slip Op 00581, Fourth Dept 1-28-22

 

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BECAUSE OF UNAMBIGUOUS STATUTORY LANGUAGE, DEFENDANT’S MICHIGAN CONVICTION WAS DEEMED A “SEXUALLY VIOLENT OFFENSE” EVEN THOUGH THE SAME CONDUCT IN NEW YORK WOULD NOT QUALIFY AS A “SEXUALLY VIOLENT OFFENSE;” STRONG TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the result, while admittedly unfair, is required by unambiguous statutory language. For predicate felony purposes, a Michigan conviction was deemed a “sexually violent offense,” even though the same conduct would not constitute a “sexually violent offense” if committed in New York:

A ” ‘[s]exually violent offender’ means a sex offender who has been convicted of a sexually violent offense” (Correction Law § 168-a [7] [b]). A ” ‘[s]exually violent offense,’ ” among other things, is “a conviction of an offense in any other jurisdiction which includes all of the essential elements of any [New York] felony [enumerated in section 168-a (3) (a)] or 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” (§ 168-a [3] [b] [emphasis added]). It is undisputed that defendant was convicted of a felony in Michigan “for which [he] is required to register as a sex offender in [that] jurisdiction” (id.). Defendant’s Michigan conviction thus constitutes a ” ‘[s]exually violent offense’ ” as defined by the second of the two disjunctive clauses that comprise section 168-a (3) (b). It follows that defendant was properly designated a sexually violent offender, even though he would not qualify as such had he committed the same conduct in New York … . People v Talluto, 2022 NY Slip Op 00575, Fourth Dept 1-28-22

 

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DEFENDANT MAY HAVE PLED GUILTY AND ACCEPTED A 16-YEAR SENTENCE IN MONORE COUNTY BECAUSE HE WAS ALREADY SENTENCED TO 14 – 24 YEARS FOR ANOTHER OFFENSE IN ONTARIO COUNTY; ON APPEAL THE ONTARIO COUNTY SENTENCE WAS REDUCED TO FOUR YEARS; MONROE COUNTY GUILTY PLEA VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant may have pled guilty and accepted a 16-year sentence in Monroe County because he was already serving a 14-24 year sentence for another offense in Ontario County. Subsequently, on appeal, the Fourth Department reduced the Ontario County sentence to four years:

“The critical question is whether the removal or reduction of the preexisting sentence nullified a benefit that was expressly promised and was a material inducement to the guilty plea” … . Here, when defendant pleaded guilty in Monroe County, the court expressly informed him that the aggregate 16-year term of imprisonment would run concurrently with the aggregate 14-to-24-year term already imposed in Ontario County, and thus the plea would result in no or relatively little additional prison time … . Once the Ontario County sentence was reduced as a result of our determination on the prior appeal to a term of four years, defendant lost the benefit previously conferred by the concurrent nature of the Monroe County plea, and “we cannot say defendant would have accepted the plea bargain . . . had it not been for his [14-to-24]-year sentence in the [Ontario County] case, now reduced to [four years]” … . People v Ringrose, 2022 NY Slip Op 00569, Fourth Dept 1-28-22

 

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“REFUSING A BREATH TEST” IS NOT A COGNIZABLE OFFENSE; A CONVICTION IS THEREFORE A FUNDAMENTAL ERROR WHICH MUST BE CORRECTED ON APPEAL EVEN IF THE ISSUE IS NOT BRIEFED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of “refusing a breath test,” explained that it is not a cognizable offense. The court noted that it was obligated to correct this fundamental error which cannot be waived, even though the issue was not briefed on appeal:

… [T]he purported traffic infraction to which defendant pleaded guilty under count two of the indictment—refusing the breath test mandated by Vehicle and Traffic Law § 1194 (1) (b)—is not a cognizable offense for which a person may be charged or convicted in a criminal court … . People v Adams, 2022 NY Slip Op 00562, Fourth Dept 1-28-22

Same issue in People v Harris, 2022 NY Slip Op 00568, Fourth Dept 1-28-22

 

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