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DEFENDANT’S WAIVER OF APPEAL WAS NOT VALID; THE COURT’S TERSE INQUIRY ABOUT THE APPEAL WAIVER WAS NOT CURED BY DEFENDANT’S EXECUTION OF A MORE DETAILED WRITTEN WAIVER AFTER SHE WAS SENTENCED AND MORE THAN A YEAR AFTER THE PLEA (THIRD DEPT).

The Third Department affirmed defendant’s conviction but noted that the waiver of appeal was not valid:

The record reflects that County Court failed to explain the separate and distinct nature of the appeal waiver to defendant, and the court’s terse inquiry, wherein defendant was asked, “Do you understand that as part of this disposition, you’re agreeing to waive your right to appeal” and that “normally . . . you have the right to appeal your plea and your sentence,” was insufficient to ensure that defendant appreciated the nature and consequences of the rights that she was relinquishing … . Further, despite defendant’s execution of a more detailed written waiver, such was executed after she was sentenced and more than a year after the plea was entered … .. Under these circumstances, we find that defendant did not knowingly and intelligently waive her right to appeal … . People v Crispell, 2022 NY Slip Op 01843, Third Dept 3-17-22

Practice Point: The court did not explain the separate and distinct nature of an appeal waiver, as opposed to the waiver of the right to a trial. The inadequacy of the court’s explanation was not cured by the more detailed written waiver which was executed after defendant was sentenced and more than a year after the plea.

 

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THE CRIMINAL PROCEDURE LAW SPELLS OUT THE ONLY GROUNDS FOR APPEAL IN A CRIMINAL PROCEEDING; NO APPEAL LIES FROM THE DENIAL OF A MOTION TO CORRECT, AMEND OR SETTLE THE SENTENCING TRANSCRIPT; AND NO APPEAL LIES FROM ADDING A MANDATORY SURCHARGE, WHICH IS NOT PART OF A SENTENCE (THIRD DEPT).

The Third Department determined no appeal lies from an order denying defendant’s motion to correct, amend or settle the sentencing transcript or from an order adding the mandatory surcharge:

As a general rule, “no appeal lies from a determination made in a criminal proceeding unless one is provided by the CPL, [which] exclusively provides for rights to appeal in criminal matters” … .A defendant’s right to appeal to this Court in a criminal case is “strictly limited to those authorized by statute” … . The … order denying defendant’s motion to correct, amend or settle the sentencing transcript and the uniform sentence and commitment form and adding the mandatory surcharge does not fit within the statutory authorization for appeals by a defendant as of right to this Court (see CPL 450.10 …). Defendant’s reliance on case law involving the correction of trial records on direct appeals from judgments of conviction is misplaced, given that this appeal is not from the judgment of conviction, which was previously affirmed on appeal (303 AD2d at 830).

With regard to the mandatory surcharge, although it should be “levied at sentencing” (Penal Law § 60.35 [1] [a]), it is not part of the sentence that must be pronounced at the sentencing proceeding … . As such, that part of County Court’s order amending the uniform sentence and commitment form by adding the mandatory surcharge did not constitute the imposition of a sentence or a modification of the sentence so as to authorize defendant’s appeal therefrom (see CPL 450.10). People v Johnson, 2022 NY Slip Op 01844, Third Dept 3-17-22

Practice Point: The Criminal Procedure Law lays out all the allowed grounds for appeal in a criminal case. The denial of a motion to correct, amend or settle a sentencing transcript is not appealable. The adding of a mandatory surcharge is not part of a sentence and therefore is not appealable.

 

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ALTHOUGH DEFENDANT’S ATTORNEY WAS SUSPENDED BY THE SECOND CIRCUIT BEFORE DEFENDANT’S TRIAL AND SUSPENDED IN NEW YORK JUST AFTER DEFENDANT’S TRIAL, DEFENDANT’S DEPRIVATION-OF-HIS-RIGHT-TO-COUNSEL AND INEFFECTIVE-ASSISTANCE ARGUMENTS WERE REJECTED; THE ATTORNEY WAS NOT OBLIGATED TO INFORM DEFENDANT OF HIS SUSPENSION OR THE PENDING SUSPENSION PROCEEDINGS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutmam, affirmed defendant’s conviction. The court noted: (1) defendant’s attorney had been suspended by the Second Circuit before defendant’s trial; (2) defendant’s attorney was still licensed in New York at the time of the defendant’s trial and conviction; (3) defendant’s attorney was suspended in New York two weeks after defendant’s conviction; (4) the New York suspension was made “retroactive” to the date of the Second Circuit suspension (before defendant’s trial); (5) the attorney was not obligated to inform defendant of the suspension by the Second Circuit; and (6) the failure to inform defendant was considered pursuant to defendant’s ineffective-assistance argument on appeal. Defendant’s motion to vacate his conviction and his appeal were deemed properly rejected by the lower courts:

… [T]he imposition of reciprocal discipline is not a foregone conclusion, nor is the nature or length of any reciprocal discipline imposed certain. Defendant’s proposed rule would deprive attorneys of the due process to which they are entitled in pending reciprocal disciplinary proceedings. * * *

No statute, court order, or New York Rule of Professional Conduct affirmatively required [defendant’s attorney] to disclose the Second Circuit’s suspension or the pending reciprocal disciplinary proceedings in New York to defendant.  * * *

We decline to create a bright-line rule invariably requiring attorneys to affirmatively disclose the imposition of foreign discipline or pending reciprocal discipline proceedings to their clients in every case, where no court order or ethical rule requires such disclosure. …

Instead, we conclude that an attorney’s failure to disclose the imposition of foreign discipline and pending reciprocal disciplinary proceedings can adequately be assessed in the context of an ineffective assistance of counsel claim … . People v Burgos, 2022 NY Slip Op 01868, Ct App 3-17-22

Practice Point: There is no statute or rule which requires an attorney to disclose to his or her client a suspension from practice in a foreign jurisdiction or ongoing suspension proceedings in New York State.

 

THE DEFENDANT WAS NOT PRODUCED FOR SENTENCING; HIS RIGHT TO BE PRESENT AT SENTENCING WAS THEREFORE VIOLATED, REQUIRING REMITTAL FOR RESENTENCING (SECOND DEPT).

The Second Department, remitting the matter for resentencing, noted that defendant was deprived of his right to be personally present at his sentencing:

A defendant has a fundamental right to be “personally present at the time sentence is pronounced” … . Here, the defendant was not produced at sentencing on the convictions of assault in the first degree and criminal possession of a weapon in the fourth degree, and the record is devoid of any indication that he expressly waived his right to be present (see CPL 380.40[2] …). … Supreme Court’s failure to have the defendant produced at the sentencing proceeding … violated the defendant’s fundamental right to be present at the time of sentence…. People v Umar, 2022 NY Slip Op 01818, Second Dept 3-16-22

Practice Point: A defendant has a fundamental right to be personally present at sentencing. Violation of that right requires remittal and resentencing.

 

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IN A RARE REVERSAL OF A BENCH TRIAL ON EVIDENTIARY GROUNDS, THE 1ST DEPT DETERMINED FOUR OUT-OF-COURT STATEMENTS ALLEGEDLY MADE BY THE VICTIM IN THIS SEXUAL-OFFENSE CASE SHOULD NOT HAVE BEEN ADMITTED UNDER THE “EXCITED UTTERANCE” OR “PROMPT OUTCRY” THEORIES; THE COURT NOTED THAT ONLY THE FACT OF THE COMPLAINT, NOT THE ACCOMPANYING DETAILS, ARE ADMISSIBLE AS A “PROMPT OUTCRY” (FIRST DEPT). ​

The First Department, reversing defendant’s conviction after a nonjury trial, determined four out-of-court statements made by the alleged victim in this sexual-offense case should not have been admitted a “excited utterances.” Although two of the statements were “prompt outcries,” under that theory only the fact of a complaint, not the details (as provided here) are admissible:

… [T]he trial court admitted four statements made by the alleged victim following the incident, reasoning that they were admissible both as excited utterances and prompt outcries. This was error. The alleged victim’s out-of-court statements did not qualify as excited utterances and should not have been admitted for their substance under that hearsay exception …  . Although two of the four statements were correctly admitted under the alternative theory that they constituted prompt outcries, under this exception, “only the fact of a complaint, not its accompanying details” is admissible … . It is clear from the record that the trial court considered all four hearsay statements for their substance, and thus, there can be no presumption that the court, as the finder of fact, considered only competent evidence … .. Given the People’s strong reliance on the hearsay statements to prove its case, and the court’s indication that it intended to review the written statement that was in evidence during deliberation, we cannot say that “the proof of the defendant’s guilt, without reference to the error, is overwhelming” and that the error was therefore harmless … . People v Gideon, 2022 NY Slip Op 01746, First Dept 3-15-22

​Practice Point: In this nonjury sexual-offense prosecution the court erred by admitting out-of-court statements by the alleged victim under the “prompt outcry” theory. Only the fact of the complaint is admissible, not the accompanying details.

 

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THE JUDGE SHOULD NOT HAVE RELIED ON EVIDENCE GIVEN AT A MATERIAL WITNESS HEARING, FROM WHICH DEFENDANT WAS PROPERLY EXCLUDED, AT A SUBSEQUENT SIROIS HEARING AT WHICH THE WITNESS DID NOT TESTIFY (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the judge should not have relied upon evidence given at a material witness hearing, from which the defendant was properly excluded, at a subsequent Sirois hearing at which the material witness did not testify:

At [the material witness] hearing, the witness … testified that she had been threatened by defendant, the codefendant, and others in an attempt to prevent her from testifying at trial. Although the court granted the People’s application for a material witness order and set bail to ensure the witness’s availability, the next day the People requested a Sirois hearing and sought a determination that the witness had been made constructively unavailable to testify at trial by threats attributable to defendant … . …

A defendant generally has no constitutional right to be present at a material witness hearing … ; however, a “[d]efendant’s absence from [a Sirois] hearing[] could have a substantial effect on his [or her] ability to defend” … . Here, although there is no dispute that the initial material witness hearing was not intended to address any Sirois or other evidentiary issues … , the court erred in relying on the unchallenged testimony taken therein in making its Sirois determination … . Indeed, the court effectively, and erroneously, incorporated the material witness hearing into the subsequent Sirois hearing by expressly relying on that testimony and on its own observations of the witness’s demeanor in making its determination. People v Phillips, 2022 NY Slip Op 01710, Fourth Dept 3-11-22

Practice Point: The judge relied on the witness’s testimony at a material witness hearing, at which defendant was not present, for his ruling in a Sirois hearing, at which the witness did not testify. Defendant was thereby deprived of his right to confront the witnesses against him at the Sirois hearing. New trial ordered.

 

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THE CROSS-EXAMINATION OF A DETECTIVE ABOUT STATEMENTS ATTRIBUTED TO THE VICTIM IN THIS SEXUAL-OFFENSE PROSECUTION SHOULD NOT HAVE BEEN CURTAILED BY THE JUDGE; THE ERROR WAS NOT HARMLESS WITH RESPECT TO SEVERAL COUNTS, BUT WAS DEEMED HARMLESS WITH RESPECT TO OTHER COUNTS (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction on several counts, determined the judge’s curtailing of the cross-examination of a detective concerning statements attributed the the victim in this sexual-offense prosecution was not harmless error as to those (reversed) counts:

” ‘Once a proper foundation is laid, a party may show that an adversary’s witness has, on another occasion, made oral or written statements which are inconsistent with some material part of the trial testimony, for the purpose of impeaching the credibility and thereby discrediting the testimony of the witness’ ” … . “To lay the foundation for contradiction, it is necessary to ask the witness specifically whether he [or she] has made such statements; and the usual and most accurate mode of examining the contradicting witness, is to ask the precise question put to the principal witness” … . Here, defendant laid a proper foundation by eliciting testimony from the victim that was inconsistent with the detective’s written report purporting to record the victim’s statement, and the court therefore should have permitted cross-examination of the detective regarding that inconsistency … . …

The testimony of the victim was the only direct evidence supporting count one of the indictment, charging criminal sexual act in the third degree, counts three and four of the indictment, charging sexual abuse in the third degree, and counts six and eight of the indictment, charging endangering the welfare of a child. We conclude that the admissible evidence of guilt with respect to those counts is not overwhelming, and that there is a reasonable possibility that the error in curtailing defense counsel’s cross-examination of the detective may have contributed to defendant’s conviction. People v Kilgore, 2022 NY Slip Op 01709, Fourth Dept 3-11-22

Practice Point: It was error for the judge to curtail the cross-examination of  a detective about statements attributed to the victim in this sexual offense prosecution. The error was deemed reversible with respect to some counts, and harmless with respect to others.

 

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AT THE FRYE HEARING, THE PEOPLE DEMONSTRATED THE ADMISSIBILITY OF THE RESULTS OF DNA ANALYSIS USING THE STRMIX DNA ANALYSIS PROGRAM (FOURTH DEPT).

The Fourth Department, affirming defendant’s conviction, determined the Frye hearing sufficiently demonstrated the admissibility of the results of DNA analysis using the STRmix DNA analysis program (STRmix program):

… [T]he People introduced evidence that biological samples were recovered from several locations at the scene of the incident and that those samples were analyzed using the STRmix program, which indicated that defendant’s DNA was contained in those samples. Before trial, the People provided defendant with notice of the results of the tests and the program used to conduct them and, at defendant’s request, the court ordered a Frye hearing concerning that program …. The People introduced evidence at the hearing that the STRmix program had been the subject of numerous peer-reviewed journal articles and had been evaluated and approved by the National Institute of Standards and Technology and by the Erie County Central Police Services Forensic Laboratory before it began using the STRmix program. In addition, the People established that the STRmix program was being used by numerous forensic testing agencies and laboratories in New York, California, the United States Army, Australia, and New Zealand, and that it had been approved by the DNA Subcommittee of the New York State Forensic Science Committee. People v Bullard-Daniel, 2022 NY Slip Op 01707, Fourth Dept 3-11-22

Practice Point: The Frye hearing in this case demonstrated the results of the DNA analysis done using the STRmix DNA analysis program constituted admissible evidence.

 

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THE PEOPLE DID NOT DEMONSTRATE THE ANONYMOUS TIP PROVIDED PROBABLE CAUSE TO BELIEVE DEFENDANT WAS IN THE VEHICLE PURSUED AND STOPPED BY THE POLICE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the Peopled failed to demonstrate the arresting officers had probable cause to pursue and stop the vehicle form which defendant attempted to flee. The officers were observing the vehicle because of an anonymous tip:

The United States Supreme Court has “recognized . . . [that] there are situations in which an anonymous tip, sufficiently corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop’ ” … . However, “[s]ince an anonymous tip ‘seldom demonstrates the informant’s basis of knowledge or veracity,’ it can only give rise to reasonable suspicion if accompanied by sufficient indicia of reliability” … . The anonymous tip must be reliable, not only “in its assertion of illegality,” but also “in its tendency to identify a determinate person” … . …

The evidence at the suppression hearing established that police officers were dispatched based on an anonymous tip that defendant was in a specific vehicle at a specific location. However, when police responded to the area, neither defendant nor the vehicle was present. Over 3½ hours later, officers observed the vehicle and two individuals inside. The only officer to testify at the suppression hearing admitted that he could not determine whether the occupants of the vehicle were male or female, let alone whether one of them was defendant. Further, the vehicle was not registered to defendant. Nevertheless, the officers activated their emergency lights and attempted to stop the vehicle. People v Ponce, 2022 NY Slip Op 01706, Fourth Dept 3-11-22

Practice Point: An anonymous tip can provide probable cause for a street stop if accompanied by sufficient indicia of reliability, both as to illegality and the identity of the person. Here the People did not demonstrate the anonymous tip was sufficiently reliable.

 

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PURSUANT TO A US SUPREME COURT DECISION WHICH CAME DOWN AFTER DEFENDANT’S CONVICTION, DEFENDANT HAS STANDING TO CHALLENGE THE CELL SITE LOCATION INFORMATION (CSLI) WARRANT, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reserving decision and remitting the matter, determined that, based upon a US Supreme Court decision which came down after defendant’s conviction, defendant has standing to challenge the cell site location information (CSLI) warrant:

We agree with defendant … that he has standing to challenge the CSLI search warrant. At the time of the court’s decision, controlling caselaw in this Department held that the acquisition of CSLI was not a search under the State or Federal Constitution because a defendant’s use of a phone “constituted a voluntary disclosure of his [or her] general location to [the] service provider, and a person does not have a reasonable expectation of privacy in information voluntarily disclosed to third parties” … . Following defendant’s conviction, the United States Supreme Court decided Carpenter v United States, 138 S Ct 2206, 2217 [2018]), which held that “an individual maintains a legitimate expectation of privacy in the record of his [or her] physical movements as captured through CSLI” … . As a result of the Carpenter decision, defendant is entitled to a determination on the merits regarding his challenges to the CSLI search warrant. People v Ozkaynak, 2022 NY Slip Op 01700, Fourth Dept 3-11-22

Practice Point: The US Supreme Court ruling that defendants have standing to challenge a cell site location information (CDLI) warrant came down after defendant’s conviction in this case. The matter was remitted for a determination of defendant’s suppression motion.

 

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