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DEFENDANT SHOULD HAVE BEEN ADJUDICATED A YOUTHFUL OFFENDER; IN ADDITION TO DEFENDANT’S MEETING THE CRITERIA, THE PEOPLE APPARENTLY LOST EXCULPATORY EVIDENCE BEFORE OFFERING A PLEA DEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant should have been adjudicated a youthful offender, noting the People may have possessed exculpatory evidence which was lost before the plea offer was made:

… [U]pon its determination of eligibility, the Supreme Court should have adjudicated the defendant a youthful offender. “In making such a determination, factors to be considered by the court include ‘the gravity of the crime and manner in which it was committed, mitigating circumstances, defendant’s prior criminal record, prior acts of violence, recommendations in the presentence reports, defendant’s reputation, the level of cooperation with authorities, defendant’s attitude toward society and respect for the law, and the prospects for rehabilitation and hope for a future constructive life'” … . Here, the updated presentence investigation report by the Department of Probation recommended youthful offender status for the defendant, who was 17 years old at the time of the offense, which was his first encounter with the criminal justice system. As the court noted during the … hearing, the defendant was cooperative with authorities. Furthermore, the defendant was employed at the time of his probation interview, obtained his GED while incarcerated, and now has a child. We find that, in its consideration of youthful offender adjudication, the court also should have weighed the defendant’s undisputed contention that the People had purportedly possessed exculpatory evidence that they had failed to provide to the defendant, the People’s loss of which apparently preceded the plea agreement offered by the People, against the nature of the offense and the defendant’s admitted role in it … . People v Terrence L., 2021 NY Slip Op 04149, Second Dept 6-30-21

 

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THE JUDGE’S SUA SPONTE ASSESSEMENT OF RISK LEVEL POINTS WHICH WERE NOT REQUESTED BY THE PEOPLE OR THE BOARD VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS (SECOND DEPT).

The Second Department, reversing County Court, determined defendant’s due process rights were violated when the judge, sua sponte, assessed risk-level points which were not requested by the People or the Board of Examiners of Sex Offenders:

“The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment” … . “A defendant has both a statutory and constitutional right to notice of points sought to be assigned to him or her so as to be afforded a meaningful opportunity to respond to that assessment” … . Thus, “a court’s sua sponte departure from the Board’s recommendation at the hearing, without prior notice, deprives the defendant of a meaningful opportunity to respond” … .

Here, as correctly conceded by the People, the County Court’s assessment of these points, without prior notice to the defendant, deprived him of a meaningful opportunity to respond to the assessment … . People v Montufar-Tez, 2021 NY Slip Op 04158, Second Dept 6-30-21

 

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THE PROSECUTION’S REASONS FOR EXCLUDING AN AFRICAN-AMERICAN PROSPECTIVE JUROR WERE PRETEXTUAL; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, in a full-fledged opinion by Justice Renwick, determined the two explanations offered by the prosecution for excluding an African-American prospective juror were pretextual and should not have been accepted by the court:

On its face, the subject explanation, that an older gentleman with no children living with roommates would not able to appreciate a domestic violence situation, was not a valid trial-related concern at all. “To recognize the proffered explanation as valid and legitimate would, in our view, emasculate the constitutional protection recognized in Batson . . . and we refuse to do so” … . In fact, the prosecutor does not cite to a single case where this Court or any other court has found such a dubious explanation as a valid-race neutral reason. * * *

… [T]he second explanation was equally pretextual. In essence, the prosecution explained that it “selected people who had higher level jobs with all other things being equal,” as well as “[p]eople who indicated that they read.” According to the prosecutor, those types of jurors had more capacity to follow the instructions and understand the law. The prosecutor’s explanation is essentially an attempt to convince this Court with the preposterous proposition that only jurors with “higher level jobs” can effectively consider all the evidence in this case. While a juror’s employment status might be an appropriate race-neutral reason for exclusion, it should be related to the facts of the case … . However, if the employment of the potential juror has no connection with the specific facts of the case then an exclusion of such a juror could constitute discrimination … .

… [T]he prosecutor did not relate his concerns about the prospective juror’s employment to the factual circumstances of the case. People v Murray, 2021 NY Slip Op 04108, First Dept 6-29-21

 

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PETITIONER WAS ENTITLED TO A HEARING ON A TEMPORARY ORDER OF PROTECTION (TOP) WHICH BARRED HER FROM HER OWN APARTMENT WHERE HER CHILDREN LIVED; THE APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, reversing Criminal Court, determined the mandamus action against  a Criminal Court judge seeking a hearing on a temporary order of protection (TOP) should have been granted. The First Department found that the matter qualified as an exception to the mootness doctrine and heard the appeal despite the dismissal of the underlying criminal action. Petitioner was charged with assaulting a man with whom she lived in her apartment. The TOP barred her from her own apartment where her children resided:

We find that the Criminal Court’s initial failure to hold an evidentiary hearing in accordance with petitioner’s due process rights after being informed that petitioner might suffer the deprivation of a significant liberty or property interest upon issuance of the TOP falls within the exception to the mootness doctrine: “(1)[there is] a likelihood of repetition, either between the parties or among other members of the public; (2) [it involves] a phenomenon typically evading review; and (3) [there is] a showing of significant or important questions not previously passed on, i.e., substantial and novel issues” … . Matter of Crawford v Ally, 2021 NY Slip Op 04082, First Dept 6-24-21

 

MURDER SECOND DISMISSED AS INCLUSORY CONCURRENT COUNT OF MURDER FIRST (SECOND DEPT).

The Second Department noted that the murder second degree conviction should have been dismissed as an inclusory concurrent count of murder first degree:

… [T]he defendant’s conviction of murder in the second degree pursuant to Penal Law § 125.25(1) under count 2 of the indictment, as well as the sentence imposed thereon, must be vacated and that count dismissed because that charge constitutes an inclusory concurrent count of the conviction of murder in the first degree pursuant to Penal Law § 125.27(1)(a)(viii) (see CPL 300.40[3][b] …). People v Morel, 2021 NY Slip Op 04032, Second Dept 6-23-21

 

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THE LANDLORD AND GENERAL CONTRACTOR RESPONSIBLE FOR THE INSTALLATION OF AN UNAUTHORIZED SYSTEM TO DELIVER GAS TO APPARTMENTS WERE PROPERLY CONVICTED OF MANSLAUGHTER AFTER A GAS EXPLOSION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, affirmed the manslaughter convictions of the landlord (Hrynenko) and general contractor (Kukic) stemming from a gas explosion which killed two and injured 13. The defendants were responsible for installing an unauthorized system for delivering gas to apartments in the building. The evidence was deemed legally sufficient and the verdicts were not against the weight of the evidence:

… [T]he evidence was legally sufficient to prove that defendants recklessly caused the victims’ deaths when they deliberately circumvented safety regulations to create and operate the unauthorized system that diverted natural gas from the building at 119 Second Avenue to the apartments in the building at 121 Second Avenue. Contrary to defendants’ primary argument, the explosion was a foreseeable result of their actions. There was ample evidence that defendants, who both had ample experience with buildings and the relevant DOB [Department of Buildings] and Con Ed regulations, understood the risk that death would occur when they proceeded with building and operating the unauthorized gas delivery system … . However, Hrynenko needed a gas delivery system to enable her to immediately begin collecting rent for the apartments at 121, so she chose not to wait for Con Ed’s permitting and inspection process to be completed for the authorized system and instead had Kukic build an unauthorized and dangerous makeshift system, using unlicensed plumbers, which they hid from Con Ed. The record shows that defendants both had active roles throughout the planning, building and operation of the system. People v Kukic, 2021 NY Slip Op 03996, First Dept 6-22-21

 

SENTENCE MUST BE PRONOUNCED ON EACH COUNT OF THE CONVICTION; SENTENCE VACATED AND REMITTED FOR RESENTENCING (FOURTH DEPT).

The Fourth Department, vacating defendant’s sentence and remitting for resentencing, noted that sentence must be pronounced for each count of the conviction:

… County Court erred in failing to “pronounce sentence on each count” of the conviction (CPL 380.20). Although the certificate of conviction states that defendant was sentenced on each count to concurrent terms of incarceration of nine years with five years of postrelease supervision, the court, at sentencing, “failed to impose a sentence for each count of which defendant was convicted” … . People v Brady, 2021 NY Slip Op 03951, Fourth Dept 6-17-21

 

THE COMPLAINT CHARGING FORCIBLE TOUCHING DID NOT ALLEGE THE APPLICATION OF PRESSURE AS AN ELEMENT OF THE TOUCHING RENDERING THE COMPLAINT LEGALLY INSFUFFICIENT (FIRST DEPT).

The First Department, vacating the defendant’s forcible touching conviction, determined the complaint was legally insufficient because it did not allege the application of pressure as an element of the touching:

The complaint was legally insufficient to support the forcible touching charge; therefore, with respect to that charge only, the prosecutor’s information was jurisdictionally defective … . The actus reus of forcible touching (Penal Law § 130.52) is “any bodily contact involving the application of some level of pressure to the victim’s sexual or intimate parts” … . Here, the complaint alleged that defendant touched the victim’s thighs and genitals by reaching under her skirt, but it failed to allege any facts consistent with the application of pressure … . People v Zaragoza, 2021 NY Slip Op 03915, First Dept 6-17-21

 

THE SENTENCING COURT CAN LOOK BEYORD THE WORDING OF A FOREIGN STATUTE TO THE CONTENTS OF THE FOREIGN ACCUSATORY INSTRUMENT TO DETERMINE WHETHER A FOREIGN FELONY IS THE EQUIVALENT OF A NEW YORK FELONY RE: SECOND FELONY OFFENDER STATUS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, determined defendant was properly sentenced as a second felony offender even though the Pennsylvania statute at issue did not require knowledge of the precise controlled substance which was possessed. The First Department looked beyond the wording of the statute to the allegations in the accusatory instrument:

The knowledge requirement of the Pennsylvania statute at issue here is satisfied when it is established that the defendant knew he or she possessed an illegal substance, without the necessity of a showing that he or she knew which illegal substance was possessed … . In contrast, the knowledge requirement under the New York Penal Law sections relevant here “demands proof of ‘knowledge that the item at issue was, in fact, the controlled substance the defendant is charged with selling or possessing'” … . This presents the possibility that defendant could have been convicted of a felony under the Pennsylvania statute without being guilty of a felony in New York.

However, a sentencing court may go beyond the statute and examine the underlying accusatory instrument when the foreign statute under which the defendant was convicted renders criminal several different acts, some of which would constitute felonies and others of which would constitute only misdemeanors in New York … .

An examination of the underlying accusatory instrument revealed that defendant had “knowingly manufacture[d], deliver[ed] or possess[ed] with intent to manufacture or deliver (crack/cocaine and powder cocaine), a controlled substance.” Accordingly, defendant’s Pennsylvania conviction was the equivalent of a felony in New York, and defendant was properly adjudicated a second felony offender. People v Simmons, 2021 NY Slip Op 03924, First Dept 6-17-21

 

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COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENDANT’S COMPLAINTS ABOUT DEFENSE COUNSEL, CONVICTION REVERSED; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, over a two-justice dissent, determined County Court should have conducted a minimal inquiry to address defendant’s complaints about defense counsel. The dissenters argued County Court had, in fact, conducted an adequate inquiry:

… [W]e conclude that defendant’s complaints were sufficiently serious to trigger the court’s duty to inquire … . Indeed, the complaints suggested on their face the possibility of a complete breakdown of communication with defense counsel, either owing to or exacerbated by defense counsel’s alleged unwillingness to respond to any of defendant’s repeated inquiries over nearly 12 months of representation; were evidenced by defendant’s apparent confusion over the status of the separate indictments; and were never refuted by defense counsel, who remained silent in response to defendant’s repeated in-court complaints … . Further, the court itself appeared to acknowledge that defendant’s complaints, if true, established that there was “a problem” with the representation.

Thus, the court had a duty to conduct a minimal inquiry, which the court failed to do … .

From the dissent:

… [T]his is not a case where the court “erred by failing to ask even a single question about the nature of the disagreement or its potential for resolution” … . Instead, because the court “repeatedly allowed defendant to air his concerns about defense counsel” and reasonably concluded after listening to those concerns that they “were insufficient to demonstrate good cause for substitution of counsel” … , we would affirm. People v Robinson, 2021 NY Slip Op 03939, Fourth Dept 6-17-21

 

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