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DEFENDANT, DURING THE PLEA COLLOQUY, DID NOT ADMIT HE POSSESSED A STOLEN “MOTOR VEHICLE,” AS OPPOSED TO A “MOTOR CYCLE,” AND THE JUDGE DID NOT INQUIRE FURTHER; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL BY A MOTION TO WITHDRAW THE PLEA; GUILTY PLEA VACATED (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined the judge should have inquired further when defendant did not admit he possessed a “motor vehicle,” as opposed to a “motor cycle.” The court noted the issue may be raised on appeal without having moved to withdraw the plea:

As charged here, criminal possession of stolen property in the fourth degree requires possession of “a motor vehicle . . . other than a motorcycle” … . During his plea allocution the defendant admitted to possession of “a motor cycle.” No further inquiry was made by the Supreme Court.

“[W]here a defendant’s factual recitation negates an essential element of the crime pleaded to, the court may not accept the plea without making further inquiry to ensure that defendant understands the nature of the charge and that the plea is intelligently entered” … . Where, as here, the court fails in its duty to inquire further, a defendant may raise a claim regarding the validity of the plea even without having moved to withdraw the plea … .

Here, as the defendant contends and the People correctly concede, the Supreme Court’s failure to inquire into the validity of the plea after the allocution clearly negated an essential element of the crime requires reversal of the judgment of conviction … . People v Douglas, 2021 NY Slip Op 06857, Second Dept 12-8-21

 

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THE RESPONDENT IN THIS JUVENILE DELINQUENCY PROCEEDING WAS ENTITLED TO IMPEACHMENT EVIDENCE CONCERNING THE ARRESTING OFFICERS TO THE EXTENT ALLOWED UNDER CRIMINAL PROCEDURE LAW (CPL) 245.20 (FIRST DEPT).

The First Department, reversing Family Court, determined the respondent-appellant in this juvenile delinquency proceeding was entitled to impeachment evidence concerning the arresting officers to the extent authorized by Criminal Procedure Law (CPL) 245.20:

While not all provisions of the Criminal Procedure Law are applicable to proceedings under the Family Court Act (Family Ct Act § 303.1[1]) under the circumstances presented here, the denial of records available under CPL 245.10(1)(k)(iv), which broadly requires disclosure of all impeachment evidence deprived appellant of equal protection of the laws (US Const, 14th Amend; NY Const, art I, § 11 …).

A respondent in a juvenile delinquency proceeding has the same right to cross-examine witnesses as a criminal defendant … , and there is no reason to allow more limited access to impeachment materials in a juvenile suppression or fact-finding hearing than in a criminal suppression hearing or trial. The need for impeachment evidence is equally crucial in both delinquency and criminal proceedings. A similarly situated defendant in a criminal proceeding would be entitled to access to the impeachment materials requested by appellant. Matter of Jayson C., 2021 NY Slip Op 06794, First Dept 12-7-21

 

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THE TRIAL COURT PROPERLY ALLOWED EXPERT TESTIMONY ABOUT “COMMUNITY GUNS,” A CONCEPT USED BY GANGS TO MAKE GUNS AVAILABLE WHILE AVOIDING BEING CAUGHT POSSESSING THE GUNS (FIRST DEPT).

The First Department noted that the trial court properly allowed expert testimony about “community guns,” a concept used by gangs to make guns available while avoiding being caught possessing the guns:

The court providently exercised its discretion in allowing expert testimony on what the expert described as “community guns.” This concept involved the methods used by gangs to have their shared firearms ready to use while avoiding being caught in possession of these weapons, including by means of keeping firearms outdoors in closed containers under their constant observation but not on anyone’s person. This testimony was necessary to explain the unusual behavior of defendant and persons who could be inferred to be his fellow gang members regarding their handling of the backpack containing the pistol, including evidence that defendant left the backpack unattended in the gang-controlled courtyard for two hours. These matters went beyond the general legal concept of constructive possession, they were not within the jurors’ ordinary knowledge, and they tended to prove defendant’s knowing and voluntary possession of the pistol … . People v Manley, 2021 NY Slip Op 06814, First Dept 12-7-21

 

THE PERSISTENT ABUSE STATUTE ENCOMPASSES THREE DISTINCT TYPES OF SEXUAL CONTACT; THE INDICTMENT DID NOT IDENTIFY THE SPECIFIC GENRE OF SEXUAL CONTACT WITH WHICH DEFENDANT WAS CHARGED; THE INDICTMENT THEREFORE DID NOT PROVIDE FAIR NOTICE OF THE ACCUSATIONS (FIRST DEPT).

The First Department, reversing defendant’s conviction and dismissing the indictment, determined the indictment failed to charge a particular crime:

The indictment was jurisdictionally defective because it “d[id] not effectively charge the defendant with the commission of a particular crime” … . A person is guilty of persistent sexual abuse … when the person commits any of three separately codified offenses — forcible touching … , second-degree sexual abuse … , or third-degree sexual abuse … — and the remaining requirements of § 130.53, which are not at issue in this case, are met. The indictment in this case charged defendant with “PERSISTENT SEXUAL ABUSE, in violation of Penal Law § 130.53.” In its sole factual allegation, it alleged that, in New York County on November 17, 2017, defendant “subjected an individual known to the Grand Jury to sexual contact.”

This abbreviated count failed to specify which of the three discrete qualifying offenses defendant was alleged to have committed. The bare allegation of “sexual contact” did not fulfill this function because sexual contact is an element of all three qualifying offenses. In failing to identify the qualifying offense, this count failed to satisfy the fundamental purposes of an indictment. It did not “provide[] the defendant with fair notice of the accusations made against him so that he [would] be able to prepare a defense” and it did not “provide[] some means of ensuring that the crime for which the defendant [was] brought to trial [was] in fact one for which he was indicted by the Grand Jury” … . People v Hardware, 2021 NY Slip Op 06772, First Dept 12-2-21

 

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POLICE OFFICERS PROPERLY ALLOWED TO IDENTIFY THE PERSON IN A SURVEILLANCE VIDEO AS THE DEFENDANT (FIRST DEPT).

The First Department noted that police officers were properly allowed to identify the person in a videotape as the defendant:

The court providently exercised its discretion in permitting two officers to give lay opinion testimony that defendant was the man depicted in a surveillance videotape of the crime. This testimony “served to aid the jury in making an independent assessment regarding whether the man in the was indeed the defendant” … . The quality of the videotape was poor, defendant’s appearance had changed, and the officers had spent sufficient time with defendant to be in a better position than the jurors to identify him on the video … . Any potential prejudice was minimized by the court’s limiting instructions that the officers’ testimony was merely to aid the jury in its independent assessment of whether the man in the video was defendant … . People v Lee, 2021 NY Slip Op 06774, First Dept 12-2-21

 

THE WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION WERE JURISDICTIONALLY DEFECTIVE (FIRST DEPT).

The First Department, reversing defendant’s conviction by guilty plea and dismissing the superior court information (SCI), determined the waiver of indictment and SCI were jurisdictionally defective:

… [D]efendant’s waiver of indictment and subsequent SCI were jurisdictionally defective, because the charged crime of attempted robbery in the third degree in the SCI was not named in the misdemeanor complaint and was a greater offense than those charged therein (see CPL 195.20 …). The waiver of indictment was also jurisdictionally infirm because defendant, who was arraigned on a misdemeanor complaint, was not held for grand jury action (see CPL 195.10[1]…). People v Maglione, 2021 NY Slip Op 06775, First Dept 12-2-21

 

JURORS WHO ENGAGED IN PREMATURE DELIBERATIONS SHOULD NOT HAVE BEEN DISCHARGED AS “GROSSLY UNQUALIFIED” ABSENT A FINDING THEY COULD NOT RENDER AN IMPARTIAL VERDICT (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined two jurors, who engaged in premature deliberations by discussing the case on the subway, should not have been discharged, over a defense objection, as “grossly unqualified:”

The record does not support the court’s discharge of a juror and an alternate, over defense objection, as “grossly unqualified.” The record establishes that the two jurors engaged in premature deliberations while on the subway by discussing the demeanor and testimony of witnesses and the age of the case. Initially, the court properly conducted an inquiry of the jurors themselves and confirmed that they had engaged in premature deliberations. However, it should have inquired further and ascertained whether they were unable to render an impartial verdict, rather than discharging them as grossly unqualified based solely on the conclusion that, by prematurely deliberating, they had violated the court’s instructions not to discuss the case … . “Premature deliberation by a juror, by itself, does not render a juror grossly unqualified” … . The “grossly unqualified” standard for removal of a sworn juror is higher than that for a prospective juror, and “the record must convincingly demonstrate that the sworn juror cannot render an impartial verdict for him or her to be disqualified”… . Nothing express or implied in the jurors’ answers suggested that they could not render an impartial verdict in spite of their conversation and decide the case based solely on the evidence before them … . People v Thompson, 2021 NY Slip Op 06778, First Dept 12-2-21

 

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COMMENTS ALLEGEDLY MADE BY A JUROR DURING DELIBERATIONS EXPRESSING ETHNIC BIAS REQUIRED A HEARING AND FINDINGS WHETHER DEFENDANT’S CONSTITUTIONAL RIGHTS, BOTH FEDERAL AND STATE, WERE VIOLATED (FIRST DEPT).

The First Department remitted the matter for a hearing on defendant’s motion to vacate the judgment, Defendant’s motion included an affidavit from the jury foreperson alleging a juror exhibited ethnic bias during deliberations:

The People consent to this matter being remanded for a hearing to determine whether ethnic bias tainted the jury’s deliberations as alleged by defendant (see PeÑa-Rodriguez v Colorado, – US -, 137 S Ct 855 [2017]; People v Leonti , 262 NY 256 [1933]). Defendant’s CPL 440 motion included an affidavit from the jury foreperson, in which he swore that, during deliberations, a juror made ethnic comments concerning defendant and the complainant exhibiting “overt [ethnic] bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict” (PeÑa-Rodriguez , – US -, 137 S Ct at 869).

At the hearing, the court should determine the veracity of these allegations. Should the court find these allegations to be true, it should determine, as a matter of federal law, whether defendant’s Sixth Amendment right to jury trial was denied because “[ethnic] animus was a significant motivating factor in the juror’s vote to convict” … . The court should also determine more broadly, as a matter of New York State law, whether the juror’s statements “created a substantial risk of prejudice to the rights of the defendant by coloring the views of the other jurors as well as her own” … . People v Chodakowski, 2021 NY Slip Op 06781, First Dept 12-2-21

 

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EVIDENCE OF OCCASIONAL MARIJUANA USE DID NOT SUPPORT THE ASSESSMENT OF 15 POINTS IN THIS SORA RISK-LEVEL PROCEEDING (FIRST DEPT).

The First Department determined the evidence did not support the SORA risk-level assessment of 15 points for drug and alcohol abuse:

Defendant admitted to occasional marijuana use, and there is no evidence that he had smoked marijuana at the time of the offense. The only evidence of prior drug treatment was as a condition of parole, on a nondrug-related conviction, that was completed in 2005. There is no evidence that defendant’s use of marijuana was established as anything more than occasional social use, and accordingly it does not warrant assessment of points under the risk factor for drug abuse. People v Baez, 2021 NY Slip Op 06771, First Dept 12-2-21

 

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THE COMPLAINANT WAS CAJOLED BY OTHERS, NOT THE DEFENDANT, TO HAVE SEX WITH DEFENDANT IN FRONT OF THE OTHERS; THERE WAS NO EVIDENCE FORCE WAS USED AND NO EVIDENCE OF ANY THREATS TO USE FORCE; RAPE FIRST CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and dismissing the indictment, determined there was no evidence of forcible compulsion in this Rape First case. The complainant was cajoled by others, not including the defendant, to have sex with the defendant in front of the others. But there was no evidence defendant used force and no overt or implied threats to use force:

… [S]ince the complainant had never spoken with the defendant prior to the alleged sexual assault, there was no reason, even from her subjective point of view, to fear that he would physically harm her if she did not do what Franiqua and Franeisha were pressuring her to do … .

… The complainant said repeatedly during her testimony that she was uncomfortable throughout the incident, that she “fe[lt] like [she] had no control” over what was happening, and that there was “nothing [she] could do” to stop it. But she never connected those feelings to a fear of being physically injured, or some other similarly serious consequence … .

… [T]here was no testimony that the complainant had been physically abused by Franiqua prior to this incident, and no evidence that the defendant was aware that Franiqua was acting abusively towards the complainant, regardless of when that conduct began. Beyond that, the complainant acknowledged that at least some of her discomfort was attributable to the “whole situation,” including, understandably, that several people were present. People v Graham, 2021 NY Slip Op 06699, Second Dept 12-1-21

 

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