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APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO FILE AN AMENDED BRIEF OR A SUPPLEMENTAL BRIEF AFTER THE COURT OF APPEALS RULED SENTENCING COURTS MUST CONSIDER YOUTHFUL OFFENDER STATUS FOR ALL WHO ARE ELIGIBLE (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined appellate counsel was ineffective and granted a writ of coram nobis. Appellate counsel did not raise the sentencing court’s failure to consider defendant’s eligibility for a youthful offender adjudication. Although the controlling case was decided after the appellate brief was filed, appellate counsel should have amended the brief or submitted a supplemental brief:

… [W]e grant the defendant’s application for a writ of error coram nobis, based on former appellate counsel’s failure to contend on appeal that the Supreme Court failed to determine whether the defendant should be afforded youthful offender status. As held by the Court of Appeals in People v Rudolph (21 NY3d 497, 501), CPL 720.20(1) requires “that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain.” Here, the record does not demonstrate that the court considered whether to adjudicate the defendant a youthful offender, even though the defendant was eligible … . We acknowledge that the Court of Appeals decided Rudolph shortly after former appellate counsel filed the brief on the appeal. However, under the circumstances of this case, after Rudolph was decided, the standard of meaningful representation required former appellate counsel to seek to amend the brief or file a supplemental brief in order to argue that, pursuant to Rudolph, the sentence must be vacated and the matter remitted for determination of the defendant’s youthful offender status … . People v Downing, 2021 NY Slip Op 06698, Second Dept 12-1-21

 

THE CHALLENGE TO A JUROR WHO SAID HE WOULD FAVOR THE TESTIMONY OF THE POLICE SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the challenge to a juror who said he would favor the police testimony should have been granted:

… [D]uring voir dire, one prospective juror, a firefighter who worked in the neighborhood where the offenses occurred, told the Supreme Court that he “personally see[s] a lot that goes on in the area[ ].” While he initially indicated that he could be fair and impartial, he subsequently stated that the police in the neighborhood “defended us, stuck up for us,” and added that he would “lean a little bit more to what [a police officer] had to say” and it would be “tough” for him not to credit police officer testimony because he had “seen it” himself. Although, when he was questioned by the court, he indicated that he would treat police officers’ testimony the same as the testimony of civilian witnesses, when asked whether he was “retracting” what he had said about “favoring police testimony,” he did not answer in the affirmative. Instead, he stated that he would evaluate police testimony based on what he had experienced.

Thus, at no point did the prospective juror provide “‘an unequivocal assurance’ that [he] could ‘set aside any bias and render an impartial verdict based on the evidence'” … . Since the defendant exercised a peremptory challenge to remove the prospective juror and exhausted his allotment of peremptory challenges prior to the completion of jury selection, the judgment of conviction must be reversed and a new trial ordered … . People v Thomas, 2021 NY Slip Op 06711, Second Dept 12-1-21

 

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THERE IS AN EXCEPTION TO THE PRESERVATION REQUIREMENT WHERE A DEFENDANT IS UNAWARE OF THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA AND THEREFORE DID NOT MOVE TO WITHDRAW THE PLEA ON THAT GROUND (SECOND DEPT).

The Second Department, remitting the matter to give the defendant the opportunity to move to vacate his guilty plea on the ground he was not aware of the possibility of deportation. The court explained the relevant exception to the preservation requirement:

“Generally, in order to preserve a claim that a guilty plea is invalid, a defendant must move to withdraw the plea on the same grounds subsequently alleged on appeal or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10” … . Thus, as relevant here, a defendant is ordinarily required to preserve the contention that his or her plea of guilty was not knowing, intelligent, and voluntary because the court failed to advise him or her that the plea could expose him or her to the risk of deportation … .

There is, however, a narrow exception to this general rule. Preservation is not required “where a defendant has no practical ability to object to an error in a plea allocution which is clear from the face of the record” … . The exception applies where the defendant is unaware of the possibility of deportation during the plea and sentencing proceedings, and, therefore, has no opportunity (as well as no motivation) to move to withdraw his or her plea based on the court’s failure to apprise him or her of that potential consequence … . A defendant, of course, “can hardly be expected to move to withdraw his [or her] plea on a ground of which he [or she] has no knowledge” … . People v Jones, 2021 NY Slip Op 06701, Second Dept 12-1-21

 

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THE VERDICT FINDING DEFENDANT CONSTRUCTIVELY POSSESSED DRUGS FOUND IN HIS SISTER’S APARTMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT). ​

The Third Department, reversing defendant’s drug-possession conviction, determined the jury’s conclusion defendant constructively possessed the drugs was against the weight of the evidence:

… [V]iewing the evidence in a neutral light and weighing the relative probative force of the proof, the jury’s determination that defendant constructively possessed the crack cocaine was not supported by the weight of the evidence. The crack cocaine was not discovered in the same room as defendant or near him. Indeed, the officer testified on cross-examination that he did not find any drugs near defendant. Rather, the crack cocaine was found in the north bedroom, i.e., his sister’s bedroom. There was no proof indicating that any of defendant’s personal belongings were in the north bedroom … . Moreover, the crack cocaine was not seen in open view but instead underneath a pile of female clothes. Even accepting that defendant was a daily visitor to his sister’s apartment, the proof does not establish that he resided there or that he exercised any dominion or control over any part of it … . People v Cota, 2021 NY Slip Op 06574, Third Dept 11-24-21

 

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THE PEOPLE DID NOT DEMONSTRATE THE MIRANDA WARNINGS WERE READ TO DEFENDANT BEFORE HE WAS QUESTIONED; GUILTY PLEA VACATED; THERE WAS NO PROOF DEFENDANT WOULD HAVE PLED GUILTY IF SUPPRESSION HAD BEEN GRANTED, THEREFORE THE HARMLESS ERROR ANALYSIS WAS NOT APPLICABLE (THIRD DEPT).

The Third Department, reversing County Court and vacating defendant’s guilty plea, determined defendant’s statement should have been suppressed:

… [T]he People rely on the investigator having talked to the trooper and, apparently, an inference that the trooper told the investigator that he read defendant his rights. However, the trooper did not testify to having read defendant his rights; he instead testified that he had no conversation with defendant. Although hearsay is admissible in suppression hearings … , this inference based on hearsay is insufficient for the People to prove beyond a reasonable doubt that defendant was advised of his Miranda rights before being questioned. The investigator did not actually testify to what he heard the trooper say during their out-of-court conversation — that is, the investigator did not actually offer hearsay evidence that the trooper read defendant his Miranda warnings. Even if the People had proven that fact, the investigator’s conclusory assertion that defendant waived his right to counsel supplied no facts from which County Court could have rationally concluded that defendant’s waiver of his right to counsel — or any of his other rights — was knowing, voluntary and intelligent … . …

[A]bsent proof that [the defendant] would have [pleaded guilty] even if his [or her] motion had been granted, harmless error analysis is inapplicable” … . People v Teixeira-Ingram, 2021 NY Slip Op 06575, Third Dept 11-24-21

 

THE BATSON CHALLENGE TO THE PROSECUTOR’S EXCLUSION OF A JUROR SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined defendant’s Batson challenge to the prosecutor’s exclusion of a juror should have been granted:

When providing a race-neutral reason for exercising a peremptory challenge as to S.K., the prosecutor stated that S.K. “is a school counselor and . . . when talking about how she would . . . settle disputes amongst two parties, indicated that she wanted to hear from both sides.” Defense counsel disputed this reason, and argued that the prosecutor did not exercise a peremptory challenge as to prospective white juror N.Z., a school counselor who “indicated that she would need to hear both stories” when working through a conflict between two children at work. The court then acknowledged that the prosecutor did not use a peremptory challenge as to N.Z., and that “[s]he is a white female.” The court denied the defendant’s Batson challenge. * * *

The defendant correctly contends that the court erred in finding that the prosecutor’s race-neutral reason for striking S.K. was not a pretext for discrimination. Here, the record demonstrates that the articulated race-neutral reasons for challenging S.K. were not applied equally to exclude a prospective juror, N.Z., who was not black and could have been challenged by the prosecutor for the same reasons. “Although the uneven application of race-neutral factors does not indicate pretext where the prosecution can articulate other legitimate reasons to justify the use of its challenges”… , the prosecution here failed to do so. Under these circumstances, we conclude that the nonracial bases advanced by the prosecutor for challenging S.K. were pretextual and “give[ ] rise to an inference of discriminatory intent” … . People v Johnson, 2021 NY Slip Op 06627, Second Dept 11-24-21

 

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IF QUESTIONING A DEFENDANT ABOUT WHERE HE/SHE LIVES SERVES AN ADMINISTRATIVE PURPOSE AND IS NOT A DISGUISED ATTEMPT TO OBTAIN INCRIMINATING INFORMATION, DEFENDANT’S ANSWER IS SUBJECT TO THE PEDIGREE EXCEPTION TO THE MIRANDA REQUIREMENT; DNA EVIDENCE GATHERED BY THE FORENSIC STATISTICAL TOOL (FST) SHOULD NOT HAVE BEEN ADMITTED WITHOUT HOLDING A FRYE HEARING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, over a two-judge dissent, determined: (1) under the facts, the defendant’s answer to the police officer’s question regarding where he lived fell within the “pedigree exception” to the Miranda requirement (and therefore was not suppressible); and (2), the DNA evidence generated by the forensic statistical tool (FST) should not have been admitted without holding a Frye hearing:

We hold that the pedigree exception will not apply even if the pedigree question is reasonably related to police administrative concerns where, under the circumstances of the case, a reasonable person would conclude based on an objective analysis that the pedigree question was a “disguised attempt at investigatory interrogation” … . …

… [T]the pedigree questions were not a disguised attempt at investigatory interrogation … . … [T]he police asked defendant his name, date of birth, and where he lived immediately after their entry to the apartment, before the apartment had been searched and before any contraband had been found. The detective further testified that it is standard practice for all adults found at a location where a search warrant is executed to be handcuffed and asked these pedigree questions, regardless of whether contraband is found during the search. That defendant’s response ultimately turned out to be incriminating does not alter the conclusion that, at the time it was asked, the question was not a disguised attempt at investigatory interrogation by the police … . * * *

Williams [35 NY3d 24] contains our reasoning on the Frye issue with respect to the FST. …

… “FST is a proprietary program exclusively developed and controlled by OCME [New York City Office of Chief Medical Examiner],” and … the approval of the DNA Subcommittee was “no substitute for the scrutiny of the relevant scientific community” … . People v Wortham, 2021 NY Slip Op 06530, CtApp 11-23-21

 

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DEFENDANT’S CHALLENGE TO CERTIFICATION AS A SEX OFFENDER WAS FIRST RAISED IN THE APPELLATE DIVISION AND WAS NOT PRESERVED FOR CONSIDERATION BY THE COURT OF APPEALS; THE ILLEGAL SENTENCE EXCEPTION TO THE PRESERVATION REQUIREMENT DOES NOT APPLY BECAUSE SORA CERTIFICATION IS NOT PART OF THE SENTENCE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, determined the challenge to the legality of defendant’s certification as a sex offender, first raised on appeal to the Appellate Division, was not preserved and the illegal sentence exception to the preservation requirement did not apply:

Defendant thereafter pleaded guilty to … burglary in the first degree as a sexually motivated felony … . … [T]he court … advised defendant that he would have to register pursuant to SORA upon his release from prison. * * *

On appeal to the Appellate Division, defendant argued for the first time that his certification as a sex offender was unlawful because his crime of conviction is not an enumerated registerable sex offense under Correction Law § 168-a (2) (a). * * *

The Appellate Division agreed with defendant that under the “clear and unambiguous” language of Correction Law § 168-a (2) (a) “burglary in the first degree as a sexually motivated felony is not a registerable sex offense under SORA” … . * * *

“We have recognized ‘a narrow exception to the preservation rule’ where a court exceeds its powers and imposes a sentence that is illegal in a respect that is readily discernible from the trial record” … . However, “not all claims arising during a sentencing proceeding fall within the exception” … . * * *

… [S]ex offender certification is effectuated by the court pursuant to Correction Law § 168-d and is not addressed in either the Criminal Procedure Law or Title E of the Penal Law. … SORA certification is not part of a sentence and the illegal sentence exception to the preservation requirement does not apply to challenges to certification as a sex offender. People v Buyund, 2021 NY Slip Op 06529, CtApp 11-23-21

 

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DEFENDANT HAD BEEN TAKEN DOWN TO THE GROUND AND HANDCUFFED AT THE TIME THE BACKPACK HE WAS WEARING WAS SEARCHED; THE PEOPLE PRESENTED NO EVIDENCE OF EXIGENCY; THE SEARCH WAS THEREFORE UNJUSTIFIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the People did not demonstrate exigent circumstances which justified the search of the backpack he was wearing. The defendant had been taken down to the ground and handcuffed at the time of the search:

At the suppression hearing, when questioned as to why he patted down defendant and the drawstring backpack, the officer merely responded “[f]or our safety.” * * *

Exigency justifying the search of a container incident to arrest is not established in the absence of some reasonable basis for the belief that the contents of the container might pose a danger to the arresting officers or that there is a legitimate concern for the preservation of evidence which might reasonably be thought to reside within the container … . …

The record does not contain evidence or testimony supporting a determination that the officer had objective reasonable grounds to believe that the drawstring backpack contained contents that would place his safety at risk or that he was concerned that the bag contained evidence that defendant could destroy. Thus, the circumstances did not suggest that any exigency required an immediate search … . People v Collins, 2021 NY Slip Op 06552, First Dept 11-23-21

 

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THE REMARKS MADE BY THE POLICE DURING THE INTERROGATION OF DEFENDANT SERVED TO NEGATE THE MIRANDA WARNINGS; INTERROGATION CONTINUED AFTER DEFENDANT ASSERTED HIS RIGHT TO COUNSEL; THE ERRORS WERE DEEMED HARMLESS BECAUSE DEFENDANT WOULD HAVE BEEN CONVICTED EVEN IF THE STATEMENTS HAD BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department determined questioning by the police effectively negated the Miranda warnings and questioning continued after defendant invoked his right to counsel. The errors were deemed harmless because the defendant would have been convicted even if the statements had been suppressed:

“Properly administered Miranda rights can be rendered inadequate and ineffective when they are contradicted by statements suggesting that there is a price for asserting the rights to remain silent or to counsel, such as foregoing ‘a valuable opportunity to speak with an assistant district attorney, to have [the] case[ ] investigated or to assert alibi defenses’ ” … . The police officer’s statement here improperly implied to defendant that the interrogation would be his “only opportunity to speak” … , and his advice that providing an explanation would benefit defendant effectively “implied that . . . defendant[‘s] words would be used to help [him], thus undoing the heart of the warning that anything [he] said could and would be used against [him]” … . * * *

… [A]bout 20 minutes into the interrogation, defendant expressly stated that he did not “want to talk about more of this[, i.e., the shooting]. That’s it.” … [D]efendant thereby unequivocally invoked his right to remain silent …  inasmuch as “[n]o reasonable police officer could have interpreted that statement as anything other than a desire not to talk to the police” … . Defendant’s responses to the police officers when they resumed the interrogation did not negate his prior unequivocal invocation of his right to remain silent because the police officers failed to reread the Miranda warnings to defendant before resuming the interrogation and therefore failed to scrupulously honor his right to remain silent … . People v Marrero, 2021 NY Slip Op 06510, Fourth Dept 11-19-21

 

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