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THE JUDGE SHOULD HAVE HELD A HEARING TO DETERMINE THE AMOUNT OF RESTITUTION, MATTER REMITTED (FOURTH DEPT).

The Fourth Department determined County Court should have held a hearing on the amount of restitution and remitted the matter:

Penal Law § 60.27 (2) provides in relevant part that, when a court requires restitution to be made, “[i]f the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing” … . Here, contrary to the assertion of the People, defendant made a timely request for a restitution hearing inasmuch as he requested a hearing before the court made its determination on restitution. The court never ordered a specific amount of restitution at sentencing, and the People did not prepare the order of restitution setting forth the amount requested until the following week. Defendant raised issues with the amount and requested a hearing. Upon defendant’s request, the court was required to conduct a hearing “irrespective of the level of evidence in the record” to support the amount of restitution … . People v Osborn, 2021 NY Slip Op 05426, Fourth Deptp 10-8-21

 

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DEFENDANT WAS CHARGED WITH MANSLAUGHTER SECOND BASED ON THE DEATH OF A PERSON TO WHOM DEFENDANT SOLD HEROIN; THE GRAND JURY EVIDENCE DID NOT SUPPORT EITHER THE “RECKLESS” ELEMENT OF MANSLAUGHTER SECOND OR THE “CRIMINAL NEGLIGENCE” ELEMENT OF CRIMINALLY NEGLIGENT HOMICIDE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Fahey, determined the grand jury evidence did not support the “reckless” element of manslaughter second degree or the “criminal negligence” element of criminally negligent homicide. The charges arose from defendant’s sale of heroin to the decedent, who died of an overdose:

Both recklessness and criminal negligence “require that there be a ‘substantial and unjustifiable risk’ that death or injury will occur; that the defendant engage in some blameworthy conduct contributing to that risk; and that the defendant’s conduct amount to a ‘gross deviation’ from how a reasonable person would act” … . “The only distinction between the two mental states is that recklessness requires that the defendant be ‘aware of’ and ‘consciously disregard’ the risk while criminal negligence is met when the defendant negligently fails to perceive the risk” … . … [T]he underlying conduct for both offenses is the same and involves some degree of risk creation … . … [T]he ” ‘nonperception’ of a risk, even if death results, is not enough”—rather, the defendant must have “engaged in some blameworthy conduct creating or contributing to a substantial and unjustifiable risk of death” … . * * *

The evidence demonstrated that defendant knew that the heroin he sold the decedent was strong and required caution. That the heroin was potent, however, does not equate to a substantial and unjustifiable risk that death would result from the use of the heroin. The coroner, the decedent’s ex-girlfriend, and the other individual who purchased heroin from defendant all testified that it was common knowledge among heroin users that different samples or preparations of heroin had different potencies and that the strength of heroin could vary a great deal among samples. The People’s evidence demonstrated that the decedent, his ex-girlfriend, and the other individual all used the same sample of heroin purchased from defendant before July 22 and survived those encounters. People v Gaworecki, 2021 NY Slip Op 05392, Ct App 10-7-21

 

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THE SUPPRESSION COURT SHOULD HAVE ORDERED A RODRIGUEZ HEARING; THE APPELLATE DIVISION SHOULD NOT HAVE RELIED ON TRIAL TESTIMONY TO OVERCOME THE SUPPRESSION COURT’S ERROR (CT APP).

The Court of Appeals, reversing (modifying) the Appellate Division, determined defendant was entitled to a Rodriguez hearing on whether a witness’s identification of the defendant was confirmatory. The Court of Appeals noted that the Appellate Division should not have relied on trial testimony to overcome the suppression court’s error:

Supreme Court erred in denying defendant’s pretrial request for a hearing pursuant to People v Rodriguez (79 NY2d 445 [1992]), as the prosecutor here offered only bare assurances that the witness was familiar with defendant. Further, the Appellate Division erroneously relied on testimony adduced at trial to overcome the suppression court’s error.

“Thus, the case should be remitted to Supreme Court for a hearing to determine whether the [photographic] identification procedure was confirmatory. If, after that hearing, the court concludes that the People have not sustained their burden, a Wade hearing should be held and further proceedings, including a new trial, should be had as the circumstances may warrant. If the court concludes that a Wade hearing is not required, the judgment[] should be amended to reflect that result” … . People v Carmona, 2021 NY Slip Op 05390, Ct App 10-7-21

 

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BY ARGUING HE DID NOT KNOW THE WEAPON AND AMMUNITION WERE IN THE TRUCK HE WAS DRIVING, DEFENDANT PUT HIS STATE OF MIND IN ISSUE; THEREFORE THE EVIDENCE HE HAD TWICE BEFORE BEEN IN THE POSSESSION OF FIREARMS, ONCE ON A PLANE AND ONCE IN A VEHICLE, WAS ADMISSIBLE UNDER MOLINEUX (SECOND DEPT).

The Second Department determined evidence of two prior incidents (more than a decade before defendant’s arrest) in which defendant had a firearm in his possession was admissible Molineux evidence in this prosecution for weapons and ammunition possession. Defendant argued at trial that he did not know the weapons and ammunition were in the truck he was driving. A strong dissent argued the Molineux evidence should not have been admitted because it was too remote, too prejudicial, and did not fit the state-of-mind exception to the Molineux rule:

“When [the] defendant’s criminal intent cannot be inferred from the commission of the act or when [the] defendant’s intent or mental state in doing the act is placed in issue, . . . proof of other crimes may be admissible under the intent exception to the Molineux rule” … .

Here, the Supreme Court providently exercised its discretion in admitting the proferred Molineux evidence. The evidence was directly relevant and probative of a material element of the crimes charged, namely, the defendant’s knowing possession of the guns … .

Our dissenting colleague’s assertion that the defendant’s criminal intent could be easily inferred from the circumstances of the incident, thus rendering the Molineux evidence unnecessary, ignores the fact that the defendant asserted a lack of criminal intent theory at trial. Contrary to our dissenting colleague’s assertion, the defendant placed his state of mind squarely in issue in his opening statement and throughout the trial, by pursuing the defense that “[h]e didn’t know” the guns were in the truck, and that the People would be unable to prove his intent to possess the guns beyond a reasonable doubt. People v Telfair, 2021 NY Slip Op 05355, Second Dept 10-6-21

 

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THE DNA TEST RESULT GENERATED USING THE FORENSIC STATISTICAL TOOL (FST) SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE WITHOUT FIRST HOLDING A FRYE HEARING (SECOND DEPT).

The Second Department, reversing defendant conviction, determined the DNA test results using the Forensic Statistical Tool (FST) should not have been admitted without first holding a Frye hearing:

The defendant was convicted, after a jury trial, of murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree. Prior to trial, the defendant moved, inter alia, to preclude the People from introducing at trial DNA testing results derived from the use of the Forensic Statistical Tool (hereinafter FST), or alternatively, to conduct a hearing pursuant to Frye v United States (293 F 1013 [DC Cir]) to determine the admissibility of the evidence generated by the FST. The Supreme Court denied that branch of the defendant’s motion, finding that FST was generally accepted in the scientific community. We reverse.

The Supreme Court improvidently exercised its discretion in admitting FST evidence without first holding a Frye hearing … . People v Adeyeye, 2021 NY Slip Op 05347, Second Dept 10-6-21

 

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DEFENDANT IN THIS CHILD PORNOGRAPHY CASE DEMONSTRATED MITIGATING FACTORS WARRANTING A DOWNWARD DEPARTURE TO SORA RISK LEVEL ONE (FOURTH DEPT).

The Fourth Department determined defendant in this child pornography case established mitigating circumstances that warranted a downward departure of the risk level to level one:

We agree with defendant … that he established by a preponderance of the evidence that there are other mitigating factors that were “not otherwise adequately taken into account by the guidelines” … . Defendant established that he suffered from a rare, congenital disease that resulted in significant disfigurement and medical issues, requiring numerous surgeries throughout his life. Defendant was bullied as a child, primarily due to his disfigurement and, as a result, was socially isolated, having no significant peer relationships. Defendant has only one prior crime on his record, a misdemeanor for which he was referred to Mental Health Court, and, in the case at hand, the court sentenced him to probation pursuant to the People’s recommendation, thus indicating that defendant does not pose a significant threat to the community. We also note that defendant will be under supervision by the Probation Department for 10 years.

As a result of the depression and related mental health issues that flowed from such a difficult childhood, defendant turned to alcohol and drugs, some of which had been properly prescribed to him following many of his surgeries. Defendant’s use of child pornography generally occurred while he was under the influence of drugs. Inasmuch as defendant was sentenced to a 10-year term of probation, which would ensure that he continued to participate in all of his treatment programs, we conclude that, in light of the totality of the circumstances, a downward departure to risk level one is warranted in the exercise of our discretion … . People v Morana, 2021 NY Slip Op 05188, Fourth Dept 10-1-21

 

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SUPREME COURT MUST RULE ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL BEFORE THE APPELLATE COURT CAN CONSIDER THE ISSUE, MATTER REMITTED FOR A RULING; THE SENTENCE IN THIS DWI CASE WAS ILLEGAL (FOURTH DEPT).

The Fourth Department, remitting the case to Supreme Court, determined the trial court must rule on the motion for a trial order of dismissal before the appeal of that issue can be considered. The Fourth Department noted that the sentence imposed in this DWI case was illegal:

… [W]e may not address defendant’s contention because, “in accordance with People v Concepcion (17 NY3d 192, 197-198 [2011]) and People v LaFontaine (92 NY2d 470, 474 [1998] … ), we cannot deem the court’s failure to rule on the . . . motion as a denial thereof” … . We therefore hold the case, reserve decision, and remit the matter to Supreme Court for a ruling on defendant’s motion … . …

… [W]e note … that the sentence is illegal insofar as the court directed that defendant serve a term of five years of probation, with an ignition interlock device for a period thereof, consecutive to the indeterminate term of imprisonment of 1 to 3 years on his conviction for violating Vehicle and Traffic Law § 1192 (4-a) … . People v Capitano, 2021 NY Slip Op 05225, Fourth Dept 10-1-21

 

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THE TRIAL JUDGE SHOULD NOT HAVE NEGOTIATED A PLEA DEAL WITH A CO-DEFENDANT REQUIRING TESTIMONY AGAINST THE DEFENDANT IN EXCHANGE FOR A MORE FAVORABLE SENTENCE; NEW TRIAL BEFORE A DIFFERENT JUDGE ORDERED (F0URTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the trial judge assumed the function of an interested party when he negotiated and entered into a plea agreement with a co-defendant requiring the co-defendant to testify against the defendant in exchange for a more favorable sentence:

… [T]he court committed reversible error when it “negotiated and entered into a [plea] agreement with a codefendant[,] requiring that individual to testify against defendant in exchange for a more favorable sentence” … . We conclude that, “by assuming the function of an interested party and deviating from its own role as a neutral arbiter, the trial court denied defendant his due process right to ‘[a] fair trial in a fair tribunal’ ” … . We therefore reverse the judgment and grant a new trial before a different justice … . People v Johnson, 2021 NY Slip Op 05217, Fourth Dept 10-1-21

 

THE JURY SHOULD NOT HAVE BEEN ALLOWED TO CONSIDER A THEORY OF DEPRAVED INDIFFERENCE MURDER WHICH WAS NOT ALLEGED IN THE BILL OF PARTICULARS (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder conviction and ordering a new trial, determined the jury instructions allowed the jury to consider a theory of prosecution that was not alleged in the bill of particulars. The defendant was charged with hitting and shaking the child victim, but the jury was allowed to consider defendant’s alleged inaction after the alleged assault:

“A defendant has a right to be tried only for the crimes charged in the indictment” … . ” ‘Where the prosecution is limited by the indictment or bill of particulars to a certain theory or theories, the court must hold the prosecution to such narrower theory or theories’ ” … . We agree with defendant that the People’s theory of depraved indifference, as outlined in the bill of particulars, was limited to defendant’s assaultive conduct, i.e., his infliction of head injuries by shaking or hitting the child, and that the court’s instruction allowed the jury to consider, in addition to the specifically delineated assaultive conduct, defendant’s “inaction” after the assault ended. … [D]efendant objected during the charge conference to a modification of the depraved indifference charge. The charge, as modified, allowed the jury to … consider “the defendant’s later inaction as a factor when considering the brutal, prolonged and ultimately fatal course of conduct,” and defendant objected on the ground that such proof was outside the scope of the bill of particulars. People v Faison, 2021 NY Slip Op 05184, Fourth Dept 10-1-21

 

THE 2012 SENTENCE IMPOSED WITHOUT CONSIDERING WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS WAS NOT ILLEGAL OR UNAUTHORIZED UNDER THE LAW IN EFFECT AT THE TIME; THEREFORE A MOTION TO VACATE THE SENTENCE ON THAT GROUND IS NOT AVAILABLE (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Aarons, determined the defendant’s motion to vacate his 2012 conviction because the sentencing court did not consider whether he should be afforded youthful offender status should not have been granted. At the time the law was changed to require consideration of youthful offender status the defendant’s case was not on appeal and the law-change was not made retroactive such that it could be considered in a collateral proceeding (motion to vacate):​

… [T]his appeal does not concern the legality of the sentence imposed after a determination had been made whether a defendant should or should not be accorded youthful offender status or, indeed, the legality of any aspect of defendant’s 2012 sentence. Rather, the appeal centers on the failure to determine, in 2012, whether defendant should have been given youthful offender status — a finding that ultimately goes to the judgment of conviction. Accordingly, … CPL 440.20 — a statute that empowers a court to set aside an unauthorized, illegal or invalid sentence — does not authorize the relief granted by Supreme Court … . …

… [I]n limiting the application of the new interpretation of CPL 720.20 (1) to “cases still on direct review,” the Court of Appeals expressly indicated that it was not available to permit “collateral attacks on sentences that have already become final” (People v Rudolph, 21 NY3d at 502). Thus, as a result of the Rudolph decision, convicted defendants gained the right to argue on direct appeal their entitlement to a resentencing at which the court will make a youthful offender determination. The Rudolph decision, however, did not authorize that relief in a collateral proceeding pursuant to CPL 440.20. In foreclosing retroactive application of the new rule announced in Rudolph to collateral proceedings, the Court of Appeals necessarily rejected the view that sentences imposed under its prior precedent were illegal, unauthorized or invalid. People v Vanderhorst, 2021 NY Slip Op 05141, Third Dept 9-30-21

 

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