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DEFENDANT SHOULD NOT HAVE BEEN RESENTENCED ON THE ORIGINAL CHARGE PURSUANT TO CPL 420.10 FOR FAILURE TO PAY RESTITUTION; THE JUDGE DID NOT MAKE THE STATUTORILY REQUIRED FINDINGS FOR RESENTENCING UNDER THAT STATUTE; RESENTENCE VACATED (THIRD DEPT).

The Third Department, reversing County Court, vacated defendant’s resentence. Once a defendant is sentenced, the court no longer has jurisdiction over the matter. Here, after it was determined defendant had willfully failed to pay the ordered restitution, defendant was resentenced to prison on the original conviction. By statute a defendant may be resentenced for failure pay restitution, but only after the court makes a finding the defendant is unable to pay due to indigency. No such finding was made here:

CPL 420.10 (3) provides that, when a court imposes restitution as part of a defendant’s sentence, the court can imprison the defendant if he or she fails to pay restitution; such provision authorizing imprisonment for failure to pay restitution can be set forth at the time of sentencing or may be added “at any later date while the . . . restitution . . . or any part thereof remains unpaid” (CPL 420.10 [3]). Although County Court therefore retained jurisdiction under the auspices of this statute, it erred in resentencing defendant pursuant to CPL 420.10 (5). As relevant here, CPL 420.10 (5) provides that, “[i]n any case where the defendant is unable to pay a fine, restitution or reparation imposed by the court, he [or she] may at any time apply to the court for resentence.” Resentencing is authorized “if the court is satisfied that the defendant is unable to pay the fine, restitution or reparation” (CPL 420.10 [5]). Here, there was no finding by the court that defendant was unable to pay the restitution due to indigency … . … [W]e refuse to equate defendant’s acceptance of the global agreement [agreeing to 81/2 to 25 years in prison including time served] with the application necessary to resentence him under CPL 420.10 (5) … . County Court could have sentenced defendant to a year in prison for his failure to pay under CPL 420.10 (3) and (4), but it did not. As it erred in utilizing CPL 420.10 (5), the resentence must be vacated. People v Marone, 2022 NY Slip Op 01070, Third Dept 2-17-22

 

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THE 3RD DEPARTMENT, JOINING THE 2ND, HOLDS THAT A DEFENDANT HAS A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT A SORA RISK-LEVEL PROCEEDING, DESPITE ITS CIVIL NATURE; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE; THE JUDGE DID NOT MAKE THE REQUIRED FINDINGS OF FACT AND CONCLUSIONS OF LAW (THIRD DEPT).

The Third Department, reversing County Court, in a full-fledged opinion by Justice Garry, determined: (1) defendant was entitled to and did not receive effective assistance of counsel at the SORA risk-level proceeding (which is civil in nature). despite his decision not to appear; and (2) the SORA judge did not make the required findings of fact and conclusions of law, requiring remittal:

Despite SORA proceedings being civil in nature, not criminal … , we now join the Second Department in explicitly holding that SORA defendants have the right to the effective assistance of counsel, pursuant to the Due Process Clauses contained in the 14th Amendment of the US Constitution and article I, § 6 of the NY Constitution, because the statutory right to counsel in such proceedings (see Correction Law § 168-n [3]) would otherwise be rendered meaningless, and because SORA determinations affect a defendant’s liberty interest … .

… Although defendant waived his right to be present at the SORA hearing, he did not waive his right to contest the Board’s risk level recommendation or the People’s arguments and proof … . Counsel — who acknowledged at the hearing that he had “had no contact” with defendant — made no arguments, essentially agreed to the Board’s recommendation, and failed to require the People to admit any proof at the hearing or County Court to provide any reasoning for its determination. … The record … reveals that counsel, who did not communicate with his client at all and “failed to litigate any aspect of the adjudication,” did not provide effective representation … . As defendant was deprived of the effective assistance of counsel, upon remittal he is entitled to a new hearing with different assigned counsel. People v VonRapacki, 2022 NY Slip Op 01071, Third Dept 2-17-22

 

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COUNTY COURT DID NOT MAKE THE REQUIRED FINDINGS OF FACT FOR DEFENDANT’S REQUEST FOR A DOWNWARD DEPARTURE IN THIS SORA RISK LEVEL PROCEEDING; ORDER REVERSED AND MATTER REMITTED (THIRD DEPT).

The Third Department, reversing County Court, determined County Court failed to make the required findings of fact for defendant’s request for a downward departure:

Defendant … argues that County Court erred in denying his request for a downward departure. Although the court did expressly deny this request in the order, it did not detail the factual findings in support of its conclusion. Thus, we are unable to ascertain the court’s reasoning for denying defendant’s request. Consequently, we reverse and remit for County Court to set forth its findings of fact for denying [*2]defendant’s request for a downward departure as required … . People v Harvey, 2022 NY Slip Op 01073, Third Dept 2-17-22

 

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DEFENDANT MADE GOOD FAITH EFFORTS TO COMPLY WITH THE TERMS OF HER PLEA AGREEMENT; SENTENCE REDUCED AND CONVICTION MODIFIED IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, reducing defendant’s sentence and modifying her conviction in the interest of justice, determined defendant had made good faith efforts to complete the anger-management program that was part of her plea agreement:

… [D]efendant entered into a plea agreement whereby she would plead guilty to second-degree assault, third-degree assault and endangering the welfare of a child, and the case would be adjourned for one year to allow her to complete a 12-week anger management program. If defendant completed the program, complied with an order of protection and had no new arrests, the People would allow her to withdraw her guilty plea to second-degree assault, and she would be sentenced to conditional discharges on the two misdemeanor convictions. Despite defendant’s diligent, repeated efforts to complete an anger management program, legitimate issues such as her inability to arrange childcare for her two young children after her 75-year-old grandmother, who had been caring for the children while defendant attended the sessions, broke her hip, prevented her from attending all the sessions. She enrolled in the program three times, each time beginning from the start, but could not complete the 12 weeks. At the time of sentencing, she had found, enrolled in and almost completed a different program close to her home with a schedule that allowed her to work and pick up her children after school. Although she did not complete the anger management program, defendant satisfied the remaining terms of the plea agreement. Under these circumstances, in the interests of justice we accordingly reduce the conviction and modify the sentence … . People v Perez, 2022 NY Slip Op 01104, Second Dept 2-17-22

 

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THE JUDGE WAS REQUIRED TO DETERMINE WHETHER DEFENDANT IS AN “ELIGIBLE YOUTH,” AND, IF SO WHETHER DEFENDANT SHOULD BE ADJUDICATED A YOUTHFUL OFFENDER; THE JUDGE WAS NOT AUTHORIZED TO ACCEPT A GUILTY PLEA TO SECOND DEGREE MURDER FROM THE JUVENILE DEFENDANT; THE WAIVER OF APPEAL WAS INVALID (SECOND DEPT).

The Second Department determined: (1) because defendant pled guilty to “armed felonies,” the judge was required to determine on the record whether defendant was an “eligible youth” and, if so, whether he should be afforded youthful offender status; (2) the judge was not authorized to accept a guilty plea for second degree murder from the juvenile defendant; and (3) the waiver of appeal was invalid:

… Supreme Court was required to determine on the record whether the defendant was an “eligible youth” (CPL 720.10[2][a][ii]), by considering the presence or absence of the factors set forth in CPL 720.10(3), and, if so, whether he should be afforded youthful offender status … . …

… Supreme Court was not authorized to accept a plea of guilty to count 3 [second degree murder]. As a juvenile offender, the defendant cannot be held criminally responsible for felony murder where the underlying felony, attempted robbery, is a crime for which he cannot be held criminally responsible (see CPL 1.20[42][2]; Penal Law § 30.00[2]; People v Stowe, 15 AD3d 597, 598; Matter of Tracy C., 186 AD2d 250, 251; People v Smith, 152 AD2d 56, 61). Accordingly, … the defendant’s plea of guilty to murder in the second degree … must be set aside … .

… Supreme Court’s oral colloquy and written appeal waiver mischaracterized the nature of the appeal waiver as an absolute bar to the taking of a direct appeal and a forfeiture of the attendant right to counsel and poor person relief … . People v Shelton, 2022 NY Slip Op 01050, Second Dept 2-16-22

 

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THE TRIAL JUDGE DID NOT MEANINGFULLY RESPOND TO A NOTE FROM THE JURY; RE-READING THE ORIGINAL INSTRUCTIONS WAS NOT SUFFICIENT; CONVICTION REVERSED, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department reversed the judgment of conviction and ordered a new trial because the trial judge did not meaningfully respond to a note from the jury. Under the facts here, re-reading the original instructions was not sufficient:

… [W]hen the jury was deliberating, the County Court failed to meaningfully respond to one of the jury’s notes. “Pursuant to CPL 310.30, the trial court has an obligation to meaningfully respond to all questions from the jury during deliberations” … . “Although simply rereading the original instructions may, under the appropriate circumstances, constitute a meaningful response” … , here, it was error for the court to respond to the jury’s last question about the elements of one of the charges by simply rereading its original instructions. The jury had previously sent a note about that charge demonstrating its initial confusion about that instruction … . The record reflects that defense counsel and the court perceived that, with respect to the jury note at issue, the jury may have been asking whether the defendant was required to know of the falsity of the information in the document that was alleged to contain false information at the time she submitted it to the Department of Health investigator. Notwithstanding its perception about the jury’s inquiry, the court did not seek any further clarification from the jury about that note. Under these circumstances, at a minimum, the court should have asked the jurors to again clarify their request … . People v Manzano, 2022 NY Slip Op 01040, Second Dept 2-16-22

 

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DEFENDANT’S STATEMENT “I WOULD LOVE TO GO PRO SE” WAS NOT A DEFINITIVE REQUEST TO REPRESENT HIMSELF AND THEREFORE THE STATEMENT DID NOT TRIGGER THE NEED FOR A SEARCHING INQUIRY BY THE JUDGE (CT APP).

The Court of Appeals, in a brief memorandum decision over an extensive two-judge dissent, determined defendant’s statement “I would love to go pro se” was not a definitive commitment to self-representation and therefore did not trigger an inquiry by the judge:

… [D]efendant did not clearly and unequivocally request to proceed pro se. During a colloquy with the trial court, defendant referenced the unsuccessful application to relieve his assigned counsel made at his prior appearance, and he renewed that application, claiming that counsel was “ineffective.” The court denied the application and rejected defendant’s renewed attempt to read aloud from what defendant had previously referred to as “my testimony.” Upon review of the record as a whole, defendant’s retort, “I would love to go pro se,” immediately after the court’s denial of his applications “d[id] not reflect a definitive commitment to self-representation” that would trigger a searching inquiry by the trial court … . People v Duarte, 2022 NY Slip Op 00960, Ct App 2-15-22

 

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THE SO-CALLED TWO-HOUR RULE, REQUIRING THE REQUEST FOR A DWI BREATH TEST BE MADE AND THE REFUSAL WARNINGS BE GIVEN WITHIN TWO HOURS OF ARREST, DOES NOT APPLY TO THE ADMINISTRATIVE LICENSE REVOCATION HEARINGS HELD BY THE DEPARTMENT OF MOTOR VEHICLES (DMV); THEREFORE THE FACT THAT THE PETITIONER WAS ASKED TO TAKE THE BREATH TEST AND WAS GIVEN THE REFUSAL WARNINGS THREE HOURS AFTER ARREST DID NOT PRECLUDE THE DMV FROM CONSIDERING PETITIONER’S TEST REFUSAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFore, over a dissenting opinion, determined the so-called two-hour rule does not apply to a driver’s license revocation administrative hearing after a DWI arrest. Within two hours of arrest the police can warn the driver that a refusal to submit to the blood-alcohol breath test is admissible at trial. If the request to submit to the test is made and the refusal warnings are given more than two hours after arrest, however, the refusal is not admissible at trial. Here the petitioner refused the DWI breath test three hours after arrest, after the refusal warnings were given. He argued the two-hour rule should apply and the refusal should not be considered at the Department of Motor Vehicle’s (DMV’s) administrative license revocation hearing:

Petitioner’s reliance on the statutory interpretation analysis in People v Odum [31 NY3d 344] as support for a motorist’s substantive right to refuse a chemical test without consequence is misplaced. Odum addressed the admissibility at trial of the results of a chemical test administered more than two hours after the defendant’s arrest, and whether the refusal warnings, including the inaccurate warning regarding the use of any refusal at a criminal trial, as given to him rendered his consent to the test involuntary. We emphasized that the 1973 statute authorizing the admissibility of evidence of a test refusal at a criminal trial was in derogation of common law and concluded as a result that the statutory provision authorizing such admission—Vehicle and Traffic Law § 1194 (2) (f)—had to be strictly construed to include the two-hour rule … . In stark contrast, the limitation on the scope of the revocation hearing in section 1194 (2) (c) is not in derogation of the common law and is a subsequently enacted provision that specifically governs the issues that may be considered at an administrative hearing … . Matter of Endara-Caicedo v Vehicles, 2022 NY Slip Op 00959, CtApp 2-15-22

 

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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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