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DESPITE DEFENSE COUNSEL’S ADMISSION BEFORE THE MOTION COURT THAT HE DID NOT PROPERLY INVESTIGATE THIS MURDER CASE, DEFENDANT DID NOT DEMONSTRATE THAT COUNSEL WAS INEFFECTIVE OR THAT THE ALLEGED INEFFECTIVENESS MET THE CRITERIA FOR A CONFLICT OF INTEREST (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, determined defendant did not demonstrate his attorney provided ineffective assistance, despite the attorney’s statements to the trial court acknowledging his failure to timely investigate the case, which led to his request to file a late alibi notice (the request was granted). The defendant told the trial court he did not want to change attorneys. And the trial court appointed a co-counsel. The First Department also rejected the unusual argument that defense counsel’s ineffectiveness constituted a conflict of interest:

… [D]efendant has not shown how defense counsel’s performance deprived him of a fair trial. Defense counsel’s self-proclaimed failures to properly investigate and prepare this murder case for trial are disturbing. Nevertheless, defendant has not shown that counsel’s lapses deprived him of any useful information or negatively impacted his ability to mount a defense. Defendant only speculates that a proper investigation and trial preparation might have yielded something helpful to the defense, but he does not suggest what that exculpatory information might be … . …

Defendant concedes that the conflict here is “not typical” as it is “derived from and centered on [defense counsel’s] ineffectiveness.” … Defendant argues that the conflict occurred when his counsel refused to withdraw from representation for personal reasons, despite conceding that he did not effectively investigate the case and prepare for trial. However, defendant cannot “demonstrate that the conduct of his defense was in fact affected by the operation of the conflict of interest” … . After defense counsel declined to withdraw and defendant noted that he wished to proceed with counsel, the motion court appointed cocounsel to assist the defense … . … [T]he defense was not affected by operation of the conflict because after defense counsel declined to withdraw, defense counsel and cocounsel effectively represented defendant at trial. People v Graham, 2021 NY Slip Op 07068, First Dept 12-16-21

 

AFTER PLEADING GUILTY IN FULL SATISFACTION OF THE CHARGES IN THE INDICTMENT, A SECOND PLEA TO ANOTHER COUNT OF THE INDICTMENT WAS PRECLUDED (FIRST DEPT).

The First Department, vacating defendant’s conviction by guilty plea and dismissing the relevant count, determined initial pleas in full satisfaction of the charges in the indictment precluded a second plea to another count in the indictment:

As the People concede, defendant’s first plea, to one count of third-degree sale of a controlled substance, was in full satisfaction of the entire indictment, so that defendant’s later plea to a second count of that indictment was not permissible … . When the second plea court sought to add a plea to an additional count as part of a renegotiated disposition conditioned on drug treatment, it could only have done so by “reinstatement. . . [of the indictment] which could have been accomplished by permitting the defendant to withdraw his original plea of guilty to [the first count]” … . People v Turane, 2021 NY Slip Op 07071, First Dept 12-16-21

 

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THE SEX TRAFFICKING STATUTE HAS TWO LINKED BUT DISTINCT ELEMENTS WHICH WERE PROPERLY EXPLAINED TO THE JURY IN THE INITIAL JURY INSTRUCTIONS; HOWEVER THE SUPPLEMENTAL INSTRUCTION IN RESPONSE TO A JURY NOTE ERRONEOUSLY COLLAPSED THE STATUTE TO A SINGLE ELEMENT; NEW TRIAL ORDERED ON THE SEX TRAFFICKING COUNTS (CT APP).

The Court of Appeals, in a brief memorandum, vacating the sex trafficking convictions and ordering a new trial, over two lengthy concurrences and a dissent, determined the supplemental jury instruction failed to explain to the jury that the sex trafficking statute has two linked but distinct elements which must be proven to convict. The positions taken by the concurrences differ and are too nuanced to fairly summarize here:

The sex trafficking statute is comprised of two distinct but linked elements, namely the offender must advance or profit from prostitution by one of the enumerated coercive acts (see Penal Law § 230.34). The trial court’s supplemental instruction, in response to a jury note, erroneously severed the required link between those elements. Accordingly, defendant’s sex trafficking convictions should be vacated, and a new trial held on those counts … . * * *

From Judge Singas’s Concurrence:

Collapsing sex trafficking into a single-element crime would cast too small a net, unjustifiably limiting the jurisdiction of this State to prosecute only those cases where the entire crime occurred in New York. Just as significantly, treating the statute’s two elements as unlinked could unjustifiably authorize prosecution of crimes in New York for extraterritorial conduct having no impact on the public safety of the state. Accordingly, we would hold that the sex trafficking statute is comprised of two discrete yet connected elements, to wit, the offender must advance or profit from prostitution through coercive acts taken in furtherance of his or her prostitution enterprise. People v Lamb, 2021 NY Slip Op 07057, CtApp 12-16-21

 

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IN THIS FAMILY OFFENSE PROCEEDING, THE JUDGE SHOULD NOT HAVE PLACED TIME AND TESTIMONY RESTRICTIONS ON THE HEARING; ORDER REVERSED AND NEW HEARING ORDERED (FIRST DEPT).

The First Department, reversing Family Court and ordering a new hearing in this family offense proceeding, determined the judge should not have placed time and testimony restrictions on the hearing:

Order of fact-finding and disposition … , which, after a hearing, determined that respondent husband committed the family offense of harassment in the second degree, and entered a one-year order of protection directing him … to refrain from assaulting or harassing petitioner wife and the parties’ two children … , unanimously reversed … .

Family Court erred in not conducting a full fact-finding hearing. The court improperly restricted the hearing, without notice to the parties to just 15-20 minutes and limited the testimony, including that of petitioner wife. Given this, Family Court is directed to conduct a full hearing on the petition and make the requisite factual findings … . Matter of Kristina M. v Paul M., 2021 NY Slip Op 06957, First Dept 12-14-21

 

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DEFENDANT FAILED TO CHALLENGE THE PREDICATE FELONY STATEMENT IN THE LOWER COURT; THEREFORE THE ALLEGED ERROR WAS NOT PRESERVED FOR APPEAL (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the alleged error in the CPL 400.21 predicate felony statement was not preserved for appeal:

Because defendant failed to challenge the CPL 400.21 predicate felony statement filed by the People in the court of first instance, her claim that her sentence was illegal due to the failure to include the tolling periods in that document did not present a question of law for purposes of appellate review … .  Defendant’s claim was not reviewable under the narrow illegal sentence exception to the preservation requirement because it was not “readily discernible from the trial record” that the sentence the court imposed was not within the permissible range … . People v Lashley, 2021 NY Slip Op 06938, CtApp 12-14-21

 

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UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE, AN OBJECTION WAS NECESSARY TO PRESERVE THE ERROR RELATED TO DEFENDANT’S ABSENCE FROM A SIDEBAR CONFERENCE ABOUT A PROSPECTIVE JUROR; DEFENDANT SUBSEQUENTLY WAIVED HIS RIGHT TO BE PRESENT AND WAS GIVEN THE OPPORTUNITY TO OBJECT TO HIS ABSENCE FROM THE PRE-WAIVER SIDEBAR (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a three-judge dissent, determined the defendant’s absence from a sidebar conference regarding a prospective juror did not require reversal. Subsequent to the the sidebar, defendant waived his right to be present at sidebar conferences and was given the opportunity to object to the pre-waiver sidebar. Under these circumstance, the Court of Appeals held, although normally not required, an objection was necessary to preserve the error for appeal:

When a defendant is not present at a sidebar conference wherein the court actively solicits answers from a prospective juror which relate to issues of bias or hostility, People v Antommarchi (80 NY2d 247 [1992]) requires a new trial in the absence of defendant’s waiver of the right to be present. Defendant’s protest in the trial court is generally not required. The purpose of the Antommarchi rule, as derived from CPL 260.20, is to provide defendant the opportunity to personally assess the juror’s facial expressions and demeanor in order to provide meaningful input on the prospective juror’s retention or exclusion from the jury. The question presented on this appeal is whether defendant, having explicitly waived his Antommarchi right to be present at sidebars in the middle of the voir dire proceeding involving a prospective juror who was ultimately struck when codefendant exercised a peremptory strike, is entitled to a new trial based on his absence from a pre-waiver sidebar conference with that same prospective juror. We conclude that the claimed error, under these unique circumstances, required defendant’s protest in the trial court given his acquiescence in the post-waiver voir dire of the prospective juror after being invited to express any objection that he may have had regarding the pre-waiver sidebar conference. People v Wilkins, 2021 NY Slip Op 06936, CtApp 12-14-21​

 

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THE ARRESTING DETECTIVE SHOULD NOT HAVE BEEN ALLOWED TO IDENTIFY THE PERSON DEPICTED IN SURVEILLANCE VIDEOS AS THE DEFENDANT, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined the arresting detective should not have been allowed to identify the person depicted in two surveillance videos as the defendant:

The court should not have permitted the arresting detective to give lay opinion testimony that defendant was the person depicted in two surveillance videos. In this case, the alleged difference in appearance — the addition of eyeglasses — was de minimis, and the jury had access to photos of defendant without eyeglasses … . The People do not point to any case in which lay opinion testimony was permitted based on such a slight change in appearance. Moreover, “no other circumstance suggested that the jury, which had ample opportunity to view defendant, would be any less able than the [officer] to determine whether he was seen in the videotape” … . Indeed, at the time of trial, the arresting detective was a 20-year veteran of the force and had 14 years experience investigating robberies and burglaries on the Lower East Side, where the incident occurred. He had made nearly 600 arrests and assisted in approximately 200 others. Stating twice that the perpetrator in this case was defendant carried significant weight in the eyes of the jury. Although the court provided limiting instructions, “[t]ruly prejudicial evidence cannot be erased from a juror’s mind by the court’s instructions” … . People v Challenger, 2021 NY Slip Op 06927, First Dept 12-9-21

 

THE DEFENSE FOR CAUSE CHALLENGE TO A JUROR WHO SAID SHE WOULD EXPECT THAT THE DEFENSE WOULD PRESENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the defense for cause challenge to a juror should have been granted:

“[A] prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial” … . Here, the prospective juror’s statements to the effect that she would expect the defense to present evidence raised a serious doubt about her ability to be impartial and her subsequent responses fell short of providing “unequivocal assurances of impartiality” … . People v Feddaoui, 2021 NY Slip Op 06859, Second Dept 12-8-21

 

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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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