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DEFENDANT WAS ENTITLED TO A HEARING ON THE MOTION TO VACATE THE CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS DESPITE THE ABSENCE OF AN AFFIDAVIT FROM TRIAL COUNSEL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant was entitled to a hearing on the motion to vacate the conviction on ineffective assistance grounds, despite the absence of an affidavit from trial counsel:

[Defendant’s] claim of ineffective assistance of counsel was properly raised on his CPL 440.10 motion inasmuch as it is based on matters outside the trial record … . Here, defendant’s submissions on the motion raise factual issues requiring a hearing concerning trial counsel’s failure to interview and call the two exculpatory witnesses … , even in the absence of an affidavit from trial counsel … . We thus conclude that defendant is entitled to a hearing on his entire claim of ineffective assistance of counsel inasmuch as ” ‘such a claim constitutes a single, unified claim that must be assessed in totality’ ” … . People v Ross, 2021 NY Slip Op 04820, Fourth Dept 8-26-21

 

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THE CONVICTION WAS AFFIRMED BUT A STRONG TWO-JUSTICE DISSENT ARGUED EXCESSIVE INTERVENTION BY THE JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT).

The Second Department affirmed defendant’s conviction over a strong two-justice dissent. The defendant argued on appeal that defendant was deprived of a fair trial by the judge’s excessive questioning of witnesses. The issue was not preserved by objection. The majority held the judge’s questioning of witnesses did not deprive defendant of a fair trial. The dissenters disagreed in a detailed memorandum which lays out the facts of the case and the judge’s interjections:

From the dissent: … [C]ontrary to the position of my colleagues in the majority, I find that the defendant was deprived of a fair trial by the Supreme Court’s repeated and egregious questioning of witnesses. Throughout the trial, the court asked more than 200 questions of witnesses which, among other things, assisted the prosecution in eliciting significant testimony and establishing the foundation for the admissibility of evidence, characterized the testimony of witnesses, and served to undermine the defense strategy. Thus, I conclude that a new trial is warranted before a different Justice. * * *

I conclude that in this case, the defendant was deprived of a fair trial, as the trial judge engaged in a pattern of repeatedly interjecting himself into the questioning of witnesses throughout the trial. The trial judge engaged in extensive questioning of witnesses, usurped the role of the prosecutor, elicited significant testimony from the People’s witnesses, made statements summarizing and characterizing the testimony of witnesses, undermined the defense’s cross-examination of the People’s witnesses, and “generally created the impression that [he] was an advocate for the People” … . People v Parker, 2021 NY Slip Op 04766, Second Dept 8-25-21

 

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THE DEFENSE REQUEST TO PRESENT THE GRAND JURY TESTIMONY OF AN UNAVAILABLE WITNESS SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined defendant’s request to present an unavailable witness’s grand jury testimony should have been granted:

The County Court committed error, however, when it denied the defendant’s request to introduce the grand jury testimony of a witness who had since become unavailable to testify at trial. “[A] defendant’s constitutional right to due process requires the admission of hearsay evidence consisting of Grand Jury testimony when the declarant has become unavailable to testify at trial, and the hearsay testimony is material, exculpatory, and has sufficient indicia of reliability” … . Here, the proffered grand jury testimony was both material and exculpatory since it consisted of eyewitness testimony that, while positively identifying the codefendant as one of the shooters at the scene of the crime, provided a description of the second shooter that was inconsistent with a description of the defendant. Moreover, a review of the grand jury testimony reveals that the prosecutor had a full and fair opportunity to examine the witness, thus satisfying the “indicia of reliability” prong of the test … , and it was uncontested at trial that the witness was unavailable. People v Johnson, 2021 NY Slip Op 04763, Second Dept 8-25-21

 

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ROBBERY FIRST REDUCED TO ROBBERY SECOND BECAUSE A THREAT TO USE A GUN IS NOT “DISPLAY” OF A GUN; “POSSESSION OF A FORGED INSTRUMENT” COUNTS VACATED BECAUSE THE WARRANTLESS SEARCH OF DEFENDANT’S WALLET WAS IMPROPER (SECOND DEPT).

The Second Department determined the robbery first conviction must be reduced to robbery second because defendant’s alleged verbal threat to use a gun was not accompanied hand movement or display of a weapon. In addition, the warrantless search of defendant’s wallet was improper and the related “possession of a forged instrument” counts were vacated:

“To sustain a conviction for robbery in the first degree (Penal Law § 160.15[4]), ‘[t]he People must show that the defendant consciously displayed something that could reasonably be perceived as a firearm, with the intent of forcibly taking property, and that the victim actually perceived the display'”… . “[I]t is the ‘display’ of what appears to be a firearm, and not the mere threat to use one, which is required” … . “A mere verbal threat is insufficient” as the words must be accompanied by some affirmative action appealing to one or more of the victim’s actual senses … . Here, the witness, whose dry cleaning store had been robbed on an earlier occasion, while testifying that the defendant threatened to use the “gun again,” denied seeing him make any motions with his hands. …

… [D]efendant’s conviction of criminal possession of a forged instrument in the third degree under counts 44 and 45 of the indictment must be vacated. The defendant’s wallet was improperly searched at the time of arrest … , rather than later as part of a “stationhouse inspection of an arrestee’s personal effects” … . People v Costan, 2021 NY Slip Op 04760, Second Dept 8-25-21

 

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THE JUDGE’S LAW CLERK WAS A DA WHO HAD WORKED ON DEFENDANT’S CASE; THE JUDGE SHOULD HAVE RECUSED HIMSELF FROM THE SENTENCING (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined the judge should have recused himself from the sentencing because his law clerk was a former DA who had worked on the case. The issue was not preserved but was considered in the interest of justice:

The defendant’s contention that the trial justice should have recused himself from presiding over the sentencing proceeding, on the ground that the justice’s law clerk was a former Queens County Assistant District Attorney who, in that capacity, had worked on the early stages of this case, is unpreserved for appellate review. We nevertheless reach this contention in the exercise of our interest of justice jurisdiction (see CPL 470.05[2]). For the reasons discussed in our decision and order on an appeal by the defendant’s codefendant (People v Hymes, 193 AD3d 975), the trial justice should have recused himself from presiding over the sentencing proceeding (see People v Suazo, 120 AD3d 1270).

Accordingly, we vacate the sentence imposed, and remit the matter to the Supreme Court, Queens County, for resentencing before a different Justice. People v McPhee, 2021 NY Slip Op 04723, Second Dept 8-18-21

 

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MURDER SECOND COUNTS WERE INCLUSORY CONCURRENT COUNTS OF MURDER FIRST AND SHOULD HAVE BEEN DISMISSED; FORMER APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ISSUE (SECOND DEPT).

The Second Department, reversing (modifying) County Court, determined the second degree murder counts should have been dismissed as inclusory concurrent counts of first degree murder, and the former appellate counsel was ineffective in failing to raise that issue:

… [F]ormer appellate counsel was ineffective for failing to contend on appeal that … the defendant’s convictions of murder in the second degree, and the sentences imposed thereon, must be vacated, and those counts of the indictment dismissed, because those charges are inclusory concurrent counts of the conviction of murder in the first degree … . People v Davis, 2021 NY Slip Op 04720, Second Dept 8-18-21

 

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THE DENIAL OF A MOTION TO SEAL A CRIMINAL CONVICTION IS CIVIL IN NATURE AND CAN BE APPEALED AS A MATTER OF RIGHT; HERE THE DEFENDANT’S MOTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (SECOND DEPT).

The Second Department, reversing County Court, determined defendant could appeal the denial of his motion to seal his conviction record because the sealing procedure is civil in nature. In addition, the Second Department held defendant was entitled to a hearing on the motion:

Although a motion pursuant to CPL 160.59 relates to a criminal matter, “it does not affect the criminal judgment itself, but only a collateral aspect of it—namely, the sealing of the court record,” and, therefore, is civil in nature … . As such, the defendant is entitled to appeal as of right from the subject order denying the 2020 motion, which was made upon notice to the People (see CPLR 5701[a][2][v] …). * * *

By using the word “shall,” the Legislature clearly and unambiguously provided that when the motion is not subject to mandatory denial under CPL 160.59(3) and the district attorney opposes the motion, the motion court does not have the discretion to dispense with the hearing requirement, even where, as here, the court had held a hearing on the defendant’s prior CPL 160.59 motion ,,, , Further, CPL 160.59 is a remedial statute, and remedial statutes should be interpreted broadly to accomplish their goals … . People v Bugge, 2021 NY Slip Op 04718, Second Dept 8-18-21

 

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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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