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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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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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