The Fourth Department noted that DWI is an inclusory concurrent count of vehicular manslaughter:
… [T]he DWI counts of which defendant was convicted are inclusory concurrent counts of vehicular manslaughter in the second degree , reconsideration . Thus, those DWI counts must be dismissed as a matter of law … . People v Conklin, 2021 NY Slip Op 06246, Fourth Dept 11-12-21
The Fourth Department determined: (1) the $1000 fine imposed for the driving while intoxicated count (in addition to a period of incarceration) was harsh and excessive; (2) the sentence for aggravated unlicensed operation was illegal; and (3) refusing to submit to a breath test is not a crime:
… [T]he sentence imposed on count two of the indictment is illegal because a fine of between $500 and $5,000 is mandatory upon a conviction of aggravated unlicensed operation of a motor vehicle in the first degree, even where, as here, the court also imposes a sentence of incarceration (see Vehicle and Traffic Law § 511 [3] [b] …). …
… [W]e note that the Appellate Term, Second Department, has repeatedly stated that a defendant’s “refusal to submit to a breath test did not establish a ‘cognizable offense’ ” … . We agree, and we therefore further modify the judgment by reversing that part convicting defendant of count four of the indictment, vacating the plea with respect to that count of the indictment and dismissing that count. People v Bembry, 2021 NY Slip Op 06235, Fourth Dept 11-21-21
The Fourth Department, vacating defendant’s guilty plea, determined defendant’s waiver of appeal was invalid and unwarned statements made by the defendant under custodial interrogation should have been suppressed. Defendant was interrogated about two missing college students. As the questioning proceeded it became apparent defendant was involved in the matter in some way, and eventually she revealed where the students were:
Defendant orally waived her right to appeal and executed a written waiver of the right to appeal. The language in the written waiver is inaccurate and misleading insofar as it purports to impose “an absolute bar to the taking of a direct appeal” and purports to deprive defendant of her “attendant rights to counsel and poor person relief, [as well as] all postconviction relief separate from the direct appeal” … . … A “waiver[] cannot be upheld . . . on the theory that the offending language can be ignored and that [it is] enforceable based on the court’s few correctly spoken terms” … . …
… [D]efendant was placed in a conference room and was questioned by an investigator from approximately 3:15 p.m. until 5:00 p.m. At 5:00 p.m., another investigator accompanied defendant to the bathroom, and the investigator continued questioning defendant. During that conversation, defendant made admissions demonstrating that she was more involved in the case than she had initially revealed, that she knew who was holding the students, and that one of the students had been shot. … At no time was she ever given Miranda warnings. People v Hughes, 2021 NY Slip Op 06231, Fourth Dept 11-12-21
The Fourth Department, reversing Supreme Court, determined the SORA court should not have considered the level three risk assessment mandatory and should have considered the evidence submitted in support of a downward department. On remand, the SORA court was directed to make findings of fact and conclusions of law in writing:
Where a “defendant’s prior felony conviction of a sex crime raised his [or her] presumptive risk level from level two to level three . . . , the [SORA] court is not mandated to apply the override but may, in appropriate circumstances, impose a lower risk level”… .
… Supreme Court, in its oral decision, incorrectly treated defendant’s presumptive level three classification as mandatory, and the court therefore never ruled on his downward departure application. We reject the People’s assertion that the court corrected that error in its subsequent written decision. … [T]he written decision explicitly “incorporates . . . [the] oral decision” and again failed to rule on defendant’s downward departure application. … [T]he “compelling evidence” line in the written decision merely summarized the findings of the Board of Examiners of Sex Offenders and was not … an independent holding or ruling by the court. People v Douglas, 2021 NY Slip Op 06229, Fourth Dept 11-12-21
The Fourth Department, over a two-justice dissent, determined the suppression court properly deemed the police officers’ testimony about the reasons for the traffic stop credible. After a car chase and a foot chase, a weapon was seized from the vehicle and defendant was charged with criminal possession of a weapon second. The dissenters argued that the testimony of the police officers was not credible and therefore the People did not meet their burden to show the traffic stop was lawful:
… [W]e reject defendant’s … contention and the dissent’s assertion that the officers’ suppression hearing testimony should be discredited, and thus that the traffic stop should be deemed unlawful, because the officers failed to disclose that they… had a pretextual reason for stopping the vehicle based on information from a confidential informant conveyed to them by another officer in an earlier phone call. The officers acknowledged when the suppression hearing was reopened that they had failed to disclose in their reports or during their prior testimony that they had a pretextual reason for stopping the vehicle based on information from a confidential informant that a firearm may have been in the vehicle. Nonetheless, one of the officers offered a credible explanation for that initial nondisclosure and the other explained that, consistent with their prior testimony, the officers had not received a “call for service,” i.e., a citizen complaint via 911, prior to the traffic stop but, rather, had received a phone call from another officer. We conclude on this record that the officers’ testimony “was not so inherently incredible or improbable as to warrant disturbing the . . . court’s determination of credibility” after it was presented with the initial omissions and subsequent explanations … . People v Addison, 2021 NY Slip Op 06225, Fourth Dept 11-12-21
The Fourth Department, dismissing one count without prejudice, determined criminal sexual act first degree is not a lesser included offense of predatory sexual assault against a child. Therefore the jury should not have been so instructed. The court noted that the prosecutor improperly injected the integrity of the District Attorney’s office into the trial by telling the jury he was at a significant advantage because he had been working on the case for more than a year:
As alleged in count one of the indictment, defendant committed predatory sexual assault against a child because, during a certain period of time, and while “being [18] years old or more, [he] engaged in two or more acts of sexual conduct, which included at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a female . . . , who was less than [13] years old.” Thus, by its explicit language, the count of predatory sexual assault against a child was predicated on defendant’s alleged commission of the class B felony of course of sexual conduct against a child in the first degree (see Penal Law § 130.75 [1] [b]) and, as a result, the People could not establish that the offense of criminal sexual act in the first degree, a different class B felony, was a lesser included offense of predatory sexual assault against a child within the meaning of CPL 1.20 (37). Stated another way, it is not impossible to commit predatory sexual assault against a child, as the offense was charged in the indictment in this case, without concomitantly, by the same conduct, committing criminal sexual act in the first degree. Indeed, as the offense was charged in the indictment here, a defendant could commit predatory sexual assault against a child by engaging in sexual intercourse or aggravated sexual contact with the victim (see Penal Law §§ 130.96, 130.75 [1] [b]), without concomitantly, by the same conduct, committing criminal sexual act in the first degree (see § 130.50 [3]). People v Getman, 2021 NY Slip Op 06224, Fourth Dept 11-12-21
The Second Department, reversing defendant’s convictions and ordering a new trial, determined the judge’s ruling that defendant can be cross-examined about prior convictions if the defense cross-examines the People’s witnesses on their criminal histories was improper:
A trial court may “make an advance ruling as to the use by the prosecutor of prior convictions or proof of the prior commission of specific criminal, vicious or immoral acts for the purpose of impeaching a defendant’s credibility” … . “[A] balance must here be struck between the probative worth of evidence of prior specific criminal, vicious or immoral acts on the issue of the defendant’s credibility on the one hand, and on the other the risk of unfair prejudice to the defendant, measured both by the impact of such evidence if it is admitted after his testimony and by the effect its probable introduction may have in discouraging him [or her] from taking the stand on his [or her] own behalf” and thereby denying the jury significant material evidence … . These considerations “simply do not apply to a witness who is not a defendant, and cross-examination of such a witness should therefore be permitted with respect to any immoral, vicious or criminal act committed by him [or her] which may reflect upon his [or her] character and show him [or her] to be unworthy of belief” … .
… Supreme Court failed to engage in the appropriate balancing between the probative worth of the convictions on the issue of the defendant’s credibility against the possible prejudice to the defendant … , and, instead, improperly conditioned its Sandoval ruling on whether defense counsel would impeach the People’s witnesses with their criminal histories. … Whether the defendant impeaches the credibility of the People’s witnesses during cross-examination based upon those witnesses’ criminal histories, or whether the People’s witnesses testify, are not relevant factors to consider in making a Sandoval ruling … . People v Brannon, 2021 NY Slip Op 06184, Second Dept 11-10-21
The Second Department, reversing defendant’s manslaughter and criminal possession of a weapon convictions, determined the judge did not make an adequate inquiry to ensure defendant’s waiver of a jury trial was knowing, intelligent and voluntary. Although the issue was not preserved, the appeal was considered in the interest of justice:
A defendant’s waiver of the right to a jury trial is governed by CPL 320.10, which provides, in relevant part, that a defendant “may at any time before trial waive a jury trial and consent to a trial without a jury in the superior court in which the indictment is pending. . . . Such waiver must be in writing and must be signed by the defendant in person in open court in the presence of the court, and with the approval of the court” … . In addition, the record as a whole must also reflect that “[t]he circumstances surrounding the waiver . . . support the conclusion that it was knowing, intelligent and voluntary” … . While the trial judge eliciting the defendant’s “full understanding of the importance of the right being waived” … is considered good practice, “no particular catechism is required to establish the validity of a jury trial waiver” … .
… [A]t the time of the purported jury waiver, the 76-year-old defendant—who had no prior contact with the criminal justice system other than a disorderly conduct violation dating back to 1980—had a recent history of paranoid delusional thinking and possible early dementia and was being treated with anti-psychotic medication. The defendant had been examined several times pursuant to CPL article 730 and had repeatedly been found unfit to proceed in the two years immediately following his arrest. … [D]uring the very terse oral colloquy that preceded the signing of the written waiver, the Supreme Court did not ask the defendant, for instance, if he was compliant with his anti-psychotic medication and was able to understand the proceedings. Indeed, the court failed to ask the defendant a single question relating to the waiver. People v Black, 2021 NY Slip Op 06183, Second Dept 11-10-21
The Second Department, applying the merger doctrine and considering the unpreserved issue in the interest of justice, determined the unlawful imprisonment conviction must be vacated:
[Defendant was convicted] of coercion in the first degree, unlawful imprisonment in the first degree, criminal obstruction of breathing or blood circulation, menacing in the second degree, reckless endangerment in the second degree, unlawful fleeing a police officer in a motor vehicle in the third degree, and reckless driving … . * * *
… [U]pon exercising our interest of justice jurisdiction, we conclude that the merger doctrine precludes the defendant’s conviction of unlawful imprisonment in the first degree because the confinement of the complaining witness in the defendant’s car was only the incidental means to the accomplishment of the conduct underlying the counts of which the defendant was acquitted … . Thus, the conviction of unlawful imprisonment in the first degree must be vacated and that count of the indictment dismissed. The defendant’s unpreserved contention that the merger doctrine applies to other offenses for which he was convicted is without merit … . People v Sims, 2021 NY Slip Op 06200, Second Dept 11-10-21
The Second Department, vacating defendant’s sentence, determined Supreme Court should have found defendant to be an “eligible youth” and then considered whether mitigating circumstances warranted youthful offender status:
While the ultimate determination as to whether an “eligible youth” (CPL 720.20[1]) should be afforded youthful offender status must be made “[a]fter receipt of a written report of the investigation and at the time of pronouncing sentence” … , there is no such requirement with respect to the initial determination as to whether the defendant is an “eligible youth” … .
… Supreme Court improvidently exercised its discretion in finding that the defendant was ineligible for youthful offender status. Pursuant to CPL 720.10(3), although the defendant entered a plea of guilty to an armed felony offense in which he was the sole participant, he could be eligible for youthful offender status if there were “mitigating circumstances that bear directly upon the manner in which the crime was committed” … . Such mitigating circumstances include “‘a lack of injury to others or evidence that the defendant did not display a weapon during the crime'” … . Here, there is no indication in the record that the defendant displayed the firearm which was recovered from his backpack, that the defendant caused or threatened any injury to another individual, or that the defendant intended to use the firearm against another individual. Consequently, the court should have determined that the defendant is an “eligible youth,” and thus, proceeded to determine whether the defendant is entitled to youthful offender status pursuant to CPL 720.20(1) … . People v Morris, 2021 NY Slip Op 06195, Second Dept 11-10-21
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