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THE WAIVER OF APPEAL WAS INVALID; THE PLEA COURT CONFLATED THE RIGHT TO APPEAL WITH THE RIGHTS FORFEITED BY A GUILTY PLEA; CASE REMITTED TO THE APPELLATE DIVISION FOR CONSIDERATION OF THE SUPPRESSION CLAIM (CT APP).

The Court of Appeals, reversing the Appellate Division and remitting the case for consideration of the suppression claim, upon the People’s concession, determined the waiver of appeal was invalid:

… [O]rder reversed and case remitted to the Appellate Division, Second Department, for further proceedings. Under the totality of the circumstances and upon the People’s concession that the appeal waiver was invalid because the plea court conflated the right to appeal with those rights automatically forfeited by a guilty plea, defendant’s appeal waiver did not foreclose consideration of his suppression claim … . People v Johnson, 2022 NY Slip Op 00909, CtApp 2-10-22

 

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THE PEOPLE FOCUSED THEIR PROOF ON THE SEXUAL MOTIVATION FOR THE BURGLARY; ALTHOUGH BURGLARY SECOND IS A LESSER INCLUDED OFFENSE OF BURGLARY SECOND AS A SEXUALLY MOTIVATED OFFENSE, THE JURY SHOULD NOT HAVE BEEN CHARGED ON THE LESSER OFFENSE BECAUSE THE DEFENDANT HAD NO PRIOR NOTICE OF THAT POSSIBILITY (FIRST DEPT).

The First Department, dismissing the burglary second count, determined the People’s request to instruct the jury on burglary second as a lesser included offense of burglary second as a sexually motivated offense should not have been granted. Although burglary second is a lesser included offense of burglary second as a sexually motivated offense, the People’s case focused only on the sexual motivation. Defendant therefore did not have notice the jury would consider burglary second:

… [T]he court improperly charged the lesser-included offense because the People, through the way they presented their case, deprived defendant of notice of the possibility that the jury would be asked to consider a lesser-included. In People v Barnes (50 NY2d 375 [1980]), the Court of Appeals observed that, where the People in a burglary case limit to a particular crime the act that the defendant intended to commit while unlawfully in a building, “the court is obliged to hold the prosecution to this narrower theory alone” … . * * *

In opposing defendant’s pretrial motion to sever certain charges in the indictment from the others, the People focused exclusively on defendant’s sexual harassment of the complainant, and on his grabbing the arm and pulling the shirt of another woman he encountered in the dorm. In making an application for the admission of certain Molineux evidence, the prosecutor focused only on the theory that defendant entered the dorm to satisfy his own sexual urges. And, in his opening statement, the prosecutor stated that defendant “knowingly and unlawfully entered the private area of a dorm to do exactly what he had been doing minutes prior — to grab, to grope and to harass the young women who lived there.” Further, the prosecutor downplayed the behavior defendant displayed towards some men he saw in the lobby of the dorm, stating that “the evidence will show that he was substantially motivated by his desire to abuse women when he passed that turnstile and unlawfully entered the private area of the dorm.” People v Seignious, 2022 NY Slip Op 00948, First Dept 2-10-22

 

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DEPRAVED INDIFFERENCE MURDER CONVICTION AFFIRMED; DURING A POLICE CHASE, DEFENDANT DROVE THE WRONG WAY ON A HIGHWAY AND CRASHED HEAD-ON INTO AN ONCOMING CAR (FIRST DEPT).

The First Department determined the evidence supported defendant’s depraved indifference murder conviction stemming from his driving the wrong way on a highway and crashing into an oncoming car during a police chase:

While fleeing from the police, defendant drove 14 blocks against oncoming traffic on the West Side Highway, a major roadway, despite openings in the median between the north and southbound lanes, while running several red lights and driving onto the curb and sidewalk. Additionally, defendant did not avail himself of parking lots and driveways on the west side of the Highway, where he could have pulled off to avoid any collision with an oncoming vehicle. Heading north, the Highway merges into, and becomes, the Henry Hudson Parkway at the intersection of 57th Street. Instead of utilizing the last available opportunity to turn into the north bound lanes, defendant made the decision to continue driving in the wrong direction and entered onto the Parkway. It is unrefuted that the Parkway had no breaks in the median through which he could return to the northbound lanes and that oncoming cars were going even faster there than on the Highway because the speed limit increased from 35 mph to 50 mph. After he got on the Parkway, defendant remained in the lane immediately to the left of the concrete barrier separating the northbound and southbound lanes, made no effort to change lanes or to swerve to avoid oncoming vehicles and made no effort to stop or slow down, despite the fact that he was now on a parkway. He continued driving this way on the Parkway for seven blocks at which time he collided, head-on, with a vehicle driving in the proper direction in the southbound lane. People v Herrera, 2022 NY Slip Op 00949, First Dept 2-10-22

 

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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS; DEFENDANT AVERRED HIS ATTORNEY DIDN’T REQUEST THE SEARCH WARRANT DOCUMENTS, DIDN’T MAKE A SUPPRESSION MOTION, AND DIDN’T INFORM HIM THAT THE LEGALITY OF THE SEARCH WARRANTS COULD BE CONTESTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to vacate his conviction on the ground of ineffective assistance of counsel. Defendant alleged his attorney did not “request and review the search warrant affidavits, move to controvert the search warrants, or advise him before he pleaded guilty that challenging the legality of the search warrants was an option:”

Defense counsel’s “investigation of the law, the facts, and the issues that are relevant to the case” is “[e]ssential to any representation, and to the attorney’s consideration of the best course of action on behalf of the client” … . Accordingly, a defendant’s right to representation entitles him or her “‘to have counsel conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself [or herself] time for reflection and preparation for trial'” … . Here, the defendant’s averments in his affidavit, along with other evidence submitted in support of his motion, were sufficient to warrant a hearing on the issue of whether his former counsel was ineffective for failing to conduct an appropriate investigation to determine whether pretrial motions concerning the search warrants should be made, and failing to advise him of potential challenges to the legality of the search warrants before he pleaded guilty to possession counts predicated on physical evidence recovered pursuant to the warrants … . People v Tindley, 2022 NY Slip Op 00886, Second Dept 2-9-22

 

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A PHOTOGRAPH DOWNLOADED FROM FACEBOOK ALLEGEDLY SHOWING DEFENDANT WEARING CLOTHES SIMILAR TO THE CLOTHES WORN BY THE PERPETRATOR SHOULD NOT HAVE BEEN ADMIITTED IN EVIDENCE; THE PHOTOGRAPH WAS NOT AUTHENTICATED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined that a photograph downloaded from Facebook allegedly showing the defendant wearing clothes similar to those worn by the perpetrator was not authenticated and should not have been admitted in evidence:

In order to admit a photograph into evidence, it must be authenticated by proof that it is genuine and that it has not been tampered with … . Here, the People failed to properly authenticate the photograph. The People’s only authentication evidence consisted of the testimony of a police witness who searched for the Facebook profile 1½ years after the crime. They did not proffer any evidence or testimony demonstrating that the photograph was “a fair and accurate representation of the scene depicted or that it was unaltered” … . To the contrary, the police witness testified that he did not know whether the photograph had been altered. Furthermore, the People did not present any evidence “to establish that the web page belonged to, and was controlled by, [the] defendant” or any evidence as to when the photograph was created or posted … .

… “[A]dmission of the photograph here lacked a proper foundation and, as such, constituted error as a matter of law” … . People v Mayo, 2022 NY Slip Op 00881, Second Dept 2-9-22

 

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THE SENTENCING COURT SHOULD NOT HAVE ENHANCED DEFENDANT’S SENTENCE BASED ON A POSITIVE DRUG TEST; DEFENDANT DID NOT VIOLATE ANY OF THE TERMS OF THE PLEA AGREEMENT AS IT WAS DESCRIBED ON THE RECORD BY THE COURT; DEFENDANT SUCCESSFULLY COMPLETED THE RESIDENTIAL DRUG TREATMENT PROGRAM, WHICH IS WHAT THE PLEA AGREEMENT CALLED FOR (SECOND DEPT).

The Second Department determined Supreme Court should not have imposed an enhanced sentence because there was no showing that defendant had violated any condition of the plea agreement:

It was undisputed that the defendant successfully completed the 90-day in-patient residential program, which was the only specific program identified by the court at the plea proceeding. Indeed, the court’s actual instruction to the defendant at the plea proceeding was to “complete the . . . residential program.” The court did not indicate at the plea proceeding that the defendant would be subject to continuous and open-ended treatment, or that a single positive drug test at any time would constitute a violation of the plea agreement. While the court referenced “the conditions of the program” at the beginning of the plea proceeding, there was no subsequent reference in the record to these conditions, and no allegation that the defendant breached any of them. Although the court could have directed the defendant to successfully engage in ongoing treatment up until the date of the sentence, it did not explicitly impose such a condition here … . The court “never stated” that the defendant was required to continue his treatment beyond the residential program identified on the record … , and “only the failure to comply with explicit conditions can form the basis of a violation” … . People v Martinez, 2022 NY Slip Op 00880, Second Dept 2-9-22

 

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ALTHOUGH THE ARRESTING OFFICER OBSERVED SOME INTERACTIONS WITH OTHERS BY THE DEFENDANT AT A LOCATION KNOWN FOR DRUG ACTIVITY, THE OFFICER DID NOT SEE ANY PROPERTY OR CURRENCY CHANGE HANDS AND DID NOT FIND ANY DRUGS OR CURRENCY ON THE DEFENDANT OR THE TWO MEN WITH HIM ON THE STREET; THERE WAS NO PROBABLE CAUSE FOR DEFENDANT’S ARREST; THE HEROIN SUBSEQUENTLY FOUND IN THE POLICE CAR AND DEFENDANT’S STATEMENT HE HAD “DITCHED” THE DRUGS IN THE CAR SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department determined defendant’s motion to suppress the heroin found in back seat of a police car and his statement that he had “ditched” the drugs in the car should have been suppressed because the arresting officer did not have probable cause at the time of defendant’s arrest. The officer had observed defendant engage in what appeared to the officer to be drug transactions on the street. But when the officer approached the defendant and two others on the street no drugs or currency were found. The defendant had been handcuffed and was subsequently arrested for loitering:

Detective Petrucci did not have probable cause to reasonably believe that the defendant was committing, or had committed, a crime, at any point prior to the defendant’s arrest (see id.). Detective Petrucci testified that he arrested the defendant on the basis of the defendant’s purported commission of loitering in the first degree, which is defined as “loiter[ing] or remain[ing] in any place with one or more persons for the purpose of unlawfully using or possessing a controlled substance” (Penal Law § 240.36). However, there was no testimony at the suppression hearing that the defendant had “remained” in any place with the other individuals with whom he interacted. The interactions between the defendant and the other individuals were described at the hearing as “quick,” “fluid,” and lasting approximately one minute. * * *

Detective Petrucci did not observe any physical property or currency being handled by the defendant or exchanged between the defendant and either Flores or Mugaburu prior to approaching the defendant, and did not otherwise recover any drugs or currency from the defendant, Flores, or Mugaburu prior to the defendant’s arrest. Contrary to the People’s contention, the observations that Detective Petrucci did make—several brief, nondescript interactions involving the defendant at an address known to the police for past drug activity—were not a sufficient basis for Detective Petrucci to form a reasonable belief that a narcotics offense was occurring or had been committed. People v Jones, 2022 NY Slip Op 00878, Second Dept 2-9-22

 

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IN THIS CASE INVOLVING A FATAL CAR ACCIDENT WHEN DEFENDANT WAS APPARENTLY “RACING” THE OTHER DRIVER, THE EVIDENCE PRESENTED TO THE GRAND JURY WAS LEGALLY SUFFICIENT TO SUPPORT THE MANSLAUGHTER SECOND DEGREE CHARGE; THE INDICTMENT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing County Court’s dismissal of the indictment, determined the evidence of manslaughter second degree presented to the grand jury was legally sufficient:

… [V]iewing the evidence in the light most favorable to the People, we find that it was legally sufficient to support the charges of manslaughter in the second degree … . The evidence before the grand jury, if accepted as true, established that in addition to traveling at the excessive rate of speed of approximately 80 to 90 miles per hour, the defendant’s vehicle and the Porsche were weaving in and out of traffic, without braking or signaling. As the Porsche and the defendant’s vehicle approached a sharp bend in the roadway, they were traveling side-by-side, with the Porsche in the left lane. The defendant’s vehicle struck the Porsche while attempting to enter the left lane, which caused the Porsche to hit the left hand curb of the roadway and fly “at least a couple of hundred feet” in the air before coming to rest “at the bottom of the highway.” Two passengers riding in the Porsche were killed. Although the defendant told a police sergeant at the scene that he did not see the Porsche when he attempted to maneuver his vehicle into the left lane and believed that the Porsche was in his blind spot, he also stated that he was “kind of racing” with the Porsche … . People v Castro, 2022 NY Slip Op 00874, Second Dept 2-9-22

 

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PETITIONER SOUGHT RECORDS FROM THE NYC TAXI AND LIMOUSINE COMMISSION (TLC) TO DETERMINE HOW THE COMMISSION WAS HANDLING LICENSE APPLICANTS WITH CRIMINAL CONVICTIONS; THE REQUEST SHOULD NOT HAVE BEEN DENIED; MATTER REMITTED FOR IN CAMERA REVIEW (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner’s request for records from the NYC Taxi and Limousine Commission (TLC), including fitness interview decisions (FID”s) should not have been denied. The matter was remitted to Supreme Court for an in camera review of the records:

The Driver’s Privacy Protection Act (DPPA) (18 USC § 2721 et seq.) does not impose a blanket prohibition on disclosure of all motor vehicle records. Instead, the law restricts disclosure of “personal information,” which includes personal identifiers of the type that petitioner agrees should be redacted. Moreover, even as to such personal information, the DPPA still expressly provides for disclosure in various circumstances, such as for research purposes, where the personal information will not be further disclosed … . Motor vehicle records under the DPPA are thus not the kind of records as to which production is absolutely prohibited, as long as they are redacted … .

The record is not clear as to what extent it is possible to anonymize production of the TLC fitness interview decisions (FIDs), which petitioner seeks in order to assess whether the TLC has been applying fair standards in its decision making on licensing determinations with respect to people with one or more criminal convictions … . Matter of Brooklyn Legal Servs. v New York City Taxi & Limousine Commn., 2022 NY Slip Op 00809, First Dept 2-8-22

 

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THE FALSE IMPRISONMENT CAUSE OF ACTION WAS UNTIMELY BECAUSE IT ACCRUED WHEN DEFENDANT WAS RELEASED UPON ARRAIGNMENT, NOT WHEN HE WAS RELEASED UPON COMPLETION OF HIS SENTENCE (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined that the false imprisonment cause of action was untimely because it accrued when plaintiff was released upon arraignment, not when he was released after completing his sentence:

Contrary to the motion court’s finding, the statute of limitations began to run not on the date on which plaintiff was released from incarceration, having completed his sentence, but on the date of his arraignment, when he was released on his own recognizance … . False imprisonment consists of detention without legal process and ends once the accused is held pursuant to legal process, such as arraignment … . Plaintiff’s incarceration following his conviction is not part of his false imprisonment claim and thus is not relevant to determining the date of expiration of the limitations period for the claim. Butler v City of New York, 2022 NY Slip Op 00810, First Dept 2-8-22

 

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