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THE JUVENILE DELINQUENCY ADJUDICATION WAS AFFIRMED; TWO DISSENTERS ARGUED THE PROOF THE JUVENILE KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVED HIS MIRANDA RIGHTS WAS INSUFFICIENT (SECOND DEPT).

Although the Second Department affirmed the juvenile delinquency adjudication, two dissenters argued the presentment agency did not prove the juvenile was capable of knowingly, voluntarily and intelligently waiving his Miranda rights. The juvenile’s expert provided evidence of the juvenile’s limited intellectual functioning:

From the dissent:

The expert’s uncontradicted opinion was that the appellant had “fundamental problems” in understanding and comprehending Miranda rights. Specifically, the appellant believed that he had to waive his right to remain silent in order to find out what the detectives were questioning him about. The appellant did not understand what it meant for a statement to be “used against him.” Further, he did not understand the role of an attorney in the context of an interrogation.

Given the appellant’s young age, low IQ scores, and limited intellectual functioning, there are serious doubts about the appellant’s ability to knowingly and intelligently waive his Miranda rights under the circumstances … . Notably, the Presentment Agency did not introduce any expert testimony contradicting the conclusions reached by the appellant’s expert forensic psychologist … . The conclusions of the appellant’s expert were confirmed by the appellant’s educational records showing that he had been selected for an individualized education plan (hereinafter IEP) and had consistently been evaluated as having intellectual disabilities, including a low IQ with reading, listening, and comprehension difficulties. Matter of Tyler L., 2021 NY Slip Op 04713, Second Dept 8-18-21

 

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THE PROSECUTOR’S REMARKS REQUIRED REVERSAL AND A NEW TRIAL ON ONE COUNT (SECOND DEPT).

The Second Department reversed defendant’s conviction on one count (attempted assault), in the interest of justice (i.e. the issue was not preserved), based upon prosecutorial misconduct:

The prosecutor made a number of improper comments during her summation by improperly vouching for the credibility of the People’s witnesses, interjecting sympathy, improperly advising the jurors on the law, and making herself an unsworn witness … .For example, when discussing the charge of attempted assault in the first degree, the prosecutor attempted to explain why no shell casings were recovered by informing the jurors that “unfortunately [the Evidence Crime Team] confine[d] themselves to where the crime scene tape was,” although no such evidence exists in the record. … [T]he prosecutor referred to testimony that had been stricken … when she told the jury that … the defendant could have shot one of the witnesses. The prosecutor also informed the jury that the voice of that same witness could be heard screaming on an audio recording of a call to the 911 emergency number. The prosecutor also twice erroneously advised the jury that its credibility determination should be based on, among other things, “what [the jurors] felt” … , and, when discussing the credibility of the prosecution’s witnesses, instructed the jury that the criminal history of one of the prosecution’s witnesses was not relevant to the question of that witness’s credibility. People v Veeney, 2021 NY Slip Op 04673, Second Dept 8-11-21

 

BECAUSE SOME OF THE ACTS CRIMINALIZED IN THE FLORIDA STATUTE CONSTITUTE NEW YORK VIOLENT FELONIES AND SOME DO NOT, THE FLORIDA ACCUSATORY INSTRUMENT MUST BE CONSULTED TO DETERMINE THE PRECISE ACTS INVOLVED; THE SECOND VIOLENT FELONY OFFENDER ADJUDICATION WAS VACATED AND THE MATTER WAS SENT BACK FOR A HEARING (SECOND DEPT).

The Second Department sent the matter back to County Court for a hearing to determine whether a Florida conviction supported sentencing defendant as a second violent felony offender:

The Florida robbery statute under which the defendant was convicted … criminalizes several different acts, some of which, if committed in New York, would constitute a violent felony pursuant to Penal Law § 160.15 or § 160.10, and some of which would not. Further, the Florida statute under which the defendant was convicted of possession of a weapon by a felon … does not set forth elements that are equivalent to a violent felony in New York (see Penal Law § 70.02[1]). Under such circumstances, resort to the Florida accusatory instrument, among other things, would be needed to ascertain the particular act or acts underlying the defendant’s convictions for robbery and possession of a weapon by a felon in Florida to determine whether the underlying acts were equivalent to a violent felony in New York … . People v Jamison, 2021 NY Slip Op 04668, Second Dept 8-11-21

 

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THE WARRANTLESS SEARCHES OF CLOSED CONTAINERS WERE NOT JUSTIFIED BY THE ITEMS BEING IN DEFENDANT’S “GRABBABLE” AREA OR BY “EXIGENT CIRCUMSTANCES;” CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, over a concurrence, determined the skimmer (a forgery device) was the product of an illegal warrantless search and should have been suppressed:

“To justify a warrantless search of a closed container incident to arrest, the People must satisfy two requirements: The first imposes spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest” … . Specific to this “place” requirement, the item searched must be conducted within the immediate control or grabbable area of the suspect … . “The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances” … . …

… [T]he trooper testified that he removed the fanny pack and backpack from the apartment when he left and then placed defendant — who was in handcuffs — in the patrol vehicle. Thereafter, the trooper made a cursory search of the fanny pack and backpack on the hood of the vehicle. At the time of the search, defendant was incapable of grabbing the items as he was handcuffed and inside the trooper’s vehicle. The fanny pack and backpack were in the exclusive control of the trooper and defendant could not possibly gain possession of them or destroy any evidence in them … . …

[T]he record reflects that defendant’s demeanor and actions were not threatening, he had been pat-frisked earlier in the apartment, he was cooperative and offered no resistance when he was handcuffed and … the circumstances of defendant’s arrest did not give rise to a reasonable belief that the fanny pack or backpack contained a weapon or dangerous instrument. … [T]he trooper’s testimony at the suppression hearing did not demonstrate exigent circumstances. People v Crosse, 2021 NY Slip Op 04636, Third Dept 8-5-21

 

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DEFENSE COUNSEL TOLD THE COURT DURING THE PRE-TRIAL SUPPRESSION HEARING THAT DEFENDANT WAS NOT CONTESTING HIS CONSENT TO THE INTOXILYZER BREATH TEST; SUPREME COURT PROPERLY DENIED DEFENDANT’S ATTEMPT TO RAISE THAT SAME SUPPRESSION ISSUE DURING TRIAL; THE DISSENT DISAGREED (FIRST DEPT).

The First Department, over a dissent, determined defendant’s attempt, during trial, to suppress the results of the Intoxilyzer breath test was properly denied. Defense counsel had told the court, during the pretrial suppression hearing. defendant did not wish to contest the validity of his consent to the breath test and, consequently,  the prosecutor did not introduce a video of the procedure:

A defendant may move to suppress the results of a chemical test administered pursuant to Vehicle and Traffic Law § 1194(3) (see CPL 710.20[5]) by filing a motion “within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application” (see CPL 255.20[1]). CPL 255.20(3) prescribes that for pretrial motions filed outside the 45-day limitation, the court “must entertain and decide on its merits, at any[]time before the end of the trial, any appropriate pre-trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the period specified.” The section also provides that any other motion not filed within the specified time “may be summarily denied.”

The record indicates that when counsel made the omnibus motion, dated September 12, 2017, defendant was well aware of the facts underlying the administration of the Intoxilyzer breath test and, for reasons that are not apparent, chose not to file a motion on that ground. People v Marte, 2021 NY Slip Op 04648, First Dept 8-5-21

 

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ALTHOUGH THE WARRANTLESS SEARCH OF THE INTERIOR OF THE CAR FOR MARIJUANA WAS JUSTIFIED, THE FORGED CREDIT CARDS SHOULD NOT HAVE BEEN EXAMINED AND SIEZED; THERE WAS NOTHING ABOUT THE CARDS WHICH INDICATED THEY WERE CONTRABAND UNDER THE “PLAIN VIEW” DOCTRINE; THE COMPREHENSIVE DISCUSSION OF THE CRITERIA FOR WARRANTLESS SEARCHES UNDER THE NYS CONSTITUTION IS WORTH CONSULTING (SECOND DEPT).

The Second Department, reversing Supreme Court, in a comprehensive decision addressing the criteria for warrantless searches under the NYS Constitution, determined the credit cards seized in a legitimate warrantless automobile search for marijuana should have been suppressed. Although it turned out the credit cards were forged, there was nothing about their appearance which justified ascertaining the names on the cards under the “plain view” doctrine:

The record here established that Officer Zaleski had probable cause to search the center console of the vehicle—and the small zippered wallet that was contained within it—for the presence of marihuana … . * * *

Although Officer Zaleski lawfully encountered the three credit cards when he opened the zippered wallet to see whether there was marihuana inside it, the facts available to Officer Zaleski at the time he opened the zippered wallet would not “warrant a [person] of reasonable caution in the belief that [the credit cards] may be contraband” … . Indeed, at the time Officer Zaleski opened the zippered wallet, there was no evidence connecting the defendant to any burglary, or any other reason to believe that the three credit cards in the zippered wallet were stolen, forged, or otherwise illicit … . * * *

On this record, Officer Zaleski’s discovery of three credit cards stacked inside a small zippered wallet was insufficient, without more, to justify an additional search that went beyond the search for marihuana. People v Mosquito, 2021 NY Slip Op 04620, Second Dept 8-4-21

 

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DEFENDANT DID NOT DEMONSTRATE HE DID NOT ENTER HIS GUILTY PLEA VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY; HIS MOTION TO WITHDRAW HIS PLEA WAS PROPERLY DENIED; STRONG DISSENT ARGUED DEFENDANT DEMONSTRATED AN INADQUATE OPPORTUNITY TO CONSULT WITH DEFENSE COUNSEL (SECOND DEPT).

The Second Department, over an extensive dissent, determined defendant entered his guilty plea voluntarily, knowingly and intelligently. Therefore, defendant’s motion to withdraw his plea was properly denied. The dissent argued defendant demonstrated he did not have an adequate opportunity to consult with defense counsel:

The defendant … contended in his motion that he had inadequate opportunity to speak with his counsel regarding the case and any defenses. However, … when the plea court endeavored to inquire further as to an equivocal statement by the defendant that he was able to discuss “some” of the facts of the case with his counsel, the defendant terminated that inquiry, and confirmed that he had sufficient time to speak with his attorney. The defendant also does not dispute the People’s assertion that, while the defendant was out on bail, he and defense counsel met with the prosecutor to view surveillance video allegedly depicting the explosives and reckless endangerment crimes.  * * *

… [T]he record here demonstrates that the defendant was feeling pressure to decide whether to plead guilty and be remanded or face greater charges if the People presented the matter to the grand jury. Indeed, the defendant’s precise words were: “I am forced to plead because they don’t—they will put me in the Grand Jury.” However, as this Court has observed: “When offered benefits for pleading guilty and confronted with the risk of more severe punishment if a plea offer is refused, a defendant will certainly feel pressure to plead guilty. But such pressure does not render a guilty plea involuntary because ‘the imposition of these difficult choices [is] an inevitable—and permissible—attribute of any legitimate system which tolerates and encourages the negotiation of pleas'” … . People v Hollman, 2021 NY Slip Op 04617, Second Dept 8-4-21

 

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THE DENIAL OF A MOTION TO SEAL A CRIMINAL CONVICTION IS CIVIL IN NATURE AND IS THEREFORE APPEALABLE, NOT WITHSTANDING THE ABSENCE OF A CRIMINAL-PROCEDURE STATUTE EXPRESSLY AUTHORIZING APPEAL (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Brathwaite Nelson, determined the denial of a motion to seal a criminal conviction pursuant to Criminal Procedure Law 160.59 is appealable. Appeals in criminal matters must be authorized by statute. The court deemed the motion to seal to be civil in nature ant therefore not subject to the strict restrictions on criminal appeals:

Where, as here, the court issuing the order being appealed from possesses both civil and criminal jurisdiction, appellate courts look to “the true nature of the proceeding and to the relief sought in order to determine whether the proceeding was criminal or civil” … . Where the relief sought is “quintessentially, of a criminal nature”… , or an integral part of an ongoing criminal investigation, the proceeding falls within the court’s criminal jurisdiction and an appeal may not be taken from an order issued therein in the absence of express statutory authority … . * * *

By contrast, even when an order is issued pursuant to a criminal investigation or relates to a collateral aspect of a criminal proceeding, if the nature of the relief sought is civil in nature and the order can be said to be final and does not affect the criminal judgment itself, courts have found the matter to be civil and appeals from such orders are not constrained by the rule controlling appeals from orders in criminal proceedings … . People v Coulibaly, 2021 NY Slip Op 04616, Second Dept 8-4-21

 

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THE MAJORITY DETERMINED DEFENDANT’S ARGUMENT HIS GUILTY PLEA WAS NOT VOLUNTARILY ENTERED WAS NOT PRESERVED; THE DISSENT ARGUED DEFENDANT WAS NOT ADEQUATELY INFORMED OF HIS BOYKIN RIGHTS AND THE CONVICTION SHOULD BE REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, over a dissent, determined defendant’s argument that his guilty plea was not knowingly, voluntarily and intelligently entered was rejected by the majority as unpreserved. The dissent agreed the issue was not preserved but argued the judge’s failure to adequately inform defendant of the Boykin rights warranted reversal in the interest of justice:

From the Dissent:

Mindful that County Court was not required “to specifically enumerate all the rights to which . . . defendant was entitled”.. , as defendant notes, the court nonetheless failed to explain, let alone refer to, any of the constitutional trial-related rights that he would forfeit by pleading guilty … . Rather, at the plea proceeding, the court focused almost exclusively on defendant’s waiver of an intoxication defense, as well as any other potential defenses, and whether defendant understood the benefits and risks of going forward with a trial. The record also fails to disclose that the court “obtain[ed] any assurance that defendant had discussed with counsel the trial-related rights that are automatically forfeited by pleading guilty or the constitutional implications of a guilty plea” … . People v Simpson, 2021 NY Slip Op 04579, Third Dept 7-28-21

 

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IN THIS RESENTENCING PROCEEDING, THE JUDGE SHOULD HAVE CONSIDERED DEFENDANT’S CONDUCT SINCE THE ORIGINAL SENTENCE WAS IMPOSED IN 1998-99 AND SHOULD HAVE ORDERED AN UPDATED PRESENTENCE REPORT WHICH INCLUDED AN INTERVIEW WITH DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court in this resentencing proceeding, determined the sentencing judge could consider defendant’s conduct after the original sentence was imposed and should have ordered an updated presentence report, including an interview with the defendant. Defendant had been sentenced in 1998 and 1999 to 125 years of imprisonment. In 2019 defendant moved to set aside his sentence on the ground that is was vindictive and the People consented to setting the sentence aside:

The Supreme Court erred in determining that it had no discretion to consider the defendant’s conduct after the original sentence was imposed. In People v Kuey (83 NY2d 278, 282), the Court of Appeals noted that when a defendant comes before the court for resentencing, “the proper focus of the inquiry is on the defendant’s record prior to the commission of the crime.” However, the Court of Appeals did not purport to limit the sentencing court’s discretion. Indeed, in Kuey, the Court of Appeals further noted that the defendant was “afforded the opportunity to supply information about his subsequent conduct,” and that the court had discretion to order an updated presentence report regarding the defendant’s subsequent conduct, if it determined that such was necessary … .

Critically, unlike the resentencing proceeding in Kuey, the resentencing proceeding here was held because the original sentence was claimed to be vindictive, which is not merely a technical defect in the original sentence … , but implicates the original sentencing court’s failure to have observed sentencing principles before imposing sentence. Given the context under which the resentence was directed, the resentencing court must exercise discretion and give due consideration “to, among other things, the crime charged, the particular circumstances of the individual before the [resentencing] court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence” … . People v Garcia, 2021 NY Slip Op 04558, Second Dept 7-28-21

 

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