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THE FAILURE TO REQUEST A DOWNWARD DEPARTURE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE; THE DISSENT DISAGREED (SECOND DEPT).

The Second Department, over a dissent, determined counsel’s failure to ask for a downward departure in the SORA risk level assessment proceeding did not amount to ineffective assistance of counsel:

Assuming arguendo that in hindsight, the defendant’s counsel, instead of simply opposing the People’s request for an upward departure from the Board’s assessment of points, also should have expressly argued for a downward departure from the assessment of points contained in the People’s RAI, the omission was not so egregious or prejudicial as to deprive the defendant of the effective assistance of counsel … . The defendant has neither demonstrated the absence of a strategic or other legitimate explanation for counsel’s failure to request a downward departure, nor even addressed that issue in the pro se supplemental brief, as is necessary to sustain an ineffectiveness claim … . Further, depictions on the defendant’s phone included young girls who were toddlers to age seven, including those engaged in sexual intercourse and oral sex with men. Under these circumstances, a downward departure would not have been appropriate given “the number and nature of the images possessed by the defendant” … . People v Carman, 2021 NY Slip Op 02834, Second Dept 5-5-21

 

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THE EVIDENCE RELIED UPON BY COUNTY COURT TO DENY DEFENDANT’S RESENTENCING PURSUANT TO THE DRUG LAW REFORM ACT (DLRA) WAS NOT SUFFICIENT TO OVERCOME THE STATUTORY PRESUMPTION FAVORING RESENTENCING (SECOND DEPT).

Second Department, reversing County Court, determined the evidence relied upon by County Court was not sufficient to overcome the statutory presumption in favor of resentencing pursuant to the Drug Law Reform Act (DLRA):

Where, as here, a defendant is eligible for resentencing relief pursuant to the 2004 DLRA and CPL 440.46, there is a statutory presumption in favor of resentencing …  . Although resentencing is not mandatory, there is a presumption that th.e defendant is entitled to benefit from the reforms enacted by the Legislature based upon its judgment that the prior sentencing scheme for drug offenses like those committed by the defendant was excessively harsh … .

Under the circumstances of this case, the factors relied upon by the County Court in denying the motion, including the defendant’s criminal history, the quantity of drugs involved in the underlying offenses, and the defendant’s disciplinary infractions while incarcerated, were insufficient to overcome the statutory presumption … . People v Williams, 2021 NY Slip Op 02831, Second Dept 5-5-21

 

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THE LAW OF THE CASE DOCTRINE PRECLUDED SUPREME COURT’S CONSIDERATION OF ADDITIONAL EVIDENCE TO JUSTIFY SENTENCING DEFENDANT AS A PERSISTENT VIOLENT FELONY OFFENDER; THE APPELLATE COURT HAD SENT THE MATTER BACK FOR RESENTENCING AFTER FINDING PERSISTENT VIOLENT FELONY OFFENDER STATUS WAS NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the law of the case doctrine precluded precluded Supreme Court from considering additional evidence and finding the incarceration tolling period was sufficient to permit sentencing defendant as a persistent violent felony offender. The Second Department, on a prior appeal, had found the tolling period insufficient and sent the matter back for resentencing:

“The doctrine of the law of the case is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” … . “An appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court” … , and “‘forecloses reexamination of [an issue previously determined] absent a showing of newly discovered evidence or a change in the law'” … .

Here, this Court previously determined, on the merits, that the defendant’s incarceration dates did not amount to a sufficient tolling period so as to qualify the March 27, 1987 conviction as a predicate violent felony under Penal Law § 70.04(1)(b)(iv) and (v). The People had a full and fair opportunity to litigate this issue both at the initial hearing before the Supreme Court in 2013, and before this Court on appeal … . People v Kaval, 2021 NY Slip Op 02823, Second Dept 5-5-21

 

DEFENDANT COMMITTED CRIMES IN ONE COUNTY AND LED THE POLICE ON A CAR CHASE WHICH ENDED IN ANOTHER COUNTY; SOME OF THE CHARGES STEMMED FROM THE CAR CHASE; THE JUDGE SHOULD NOT HAVE INSTRUCTED THE JURY THAT THE PEOPLE HAD GEOGRAPHIC JURISDICTION OVER ALL THE COUNTS IF THE PEOPLE HAD JURISDICTION OVER ONE COUNT (SECOND DEPT).

The Second Department, ordering a new trial on some of the charges, determined the judge should not have instructed the jury that finding the People had geographic jurisdiction over one count proved the county with jurisdiction over all counts. Defendant had fled the scene of the murder and led the police on a chase which ended in a different county. The counts at issue stemmed from the car chase:

“The defendant has the right at common law and under the State Constitution to be tried in the county where the crime was committed unless the Legislature has provided otherwise” … . “The burden is on the People to prove by a preponderance of the evidence that the county where the crime is prosecuted is the proper venue because either the crime was committed there or one of the statutory exceptions is applicable” … , insofar as is relevant here, “an appropriate criminal court of a particular county” has jurisdiction of an offense where “[c]onduct occurred within such county sufficient to establish . . . [a]n element of such offense.” “[G]enerally it is for the jury to decide, as a matter of fact, the place where the crime was committed or any other fact relevant to venue” … .

Here, upon submitting the issue of venue regarding counts three, four, and seven to the jury, the Supreme Court “incorrectly instructed that a finding of geographic jurisdiction on one count effectively provided the County with jurisdiction over all the other counts” … . This error cannot be deemed harmless. Because a defendant is entitled to have a jury, not the court, determine factual issues regarding venue, “[i]t is not enough that the record contains evidence” that an element of the offense occurred in the county asserting jurisdiction … . Rather, “it must appear from the instructions or by necessary implication from the verdicts that the jury made a finding of proper venue” … . People v Crumb, 2021 NY Slip Op 02816, Second Dept 5-5-21

 

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ALTHOUGH THE EVIDENCE OF SERIOUS PHYSICAL INJURY WAS INSUFFICIENT, THE EVIDENCE DEFENDANT INTENDED TO INFLICT SERIOUS PHYSICAL INJURY WAS SUFFICIENT; CONVICTIONS REDUCED TO ATTEMPTED GANG ASSAULT, ASSAULT AND ROBBERY (SECOND DEPT).

The Second Department, reducing defendant’s gang assault, assault and robbery convictions to attempted gang assault, assault and robbery, determined the evidence of serious physical injury was insufficient, but the evidence of an intent to inflict serious physical injury was sufficient. The victim was attacked and slashed but no internal organs were injured:

Viewing the evidence in the light most favorable to the prosecution… , we find that the evidence was not legally sufficient to establish the defendant’s guilt on these counts. Although the complainant was stabbed multiple times, there was no evidence of serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ … .

However, the evidence at trial also established beyond a reasonable doubt that the defendant acted with the intent to inflict serious physical injury and came “dangerously near” to committing the completed crimes … . Accordingly, we modify the judgment by reducing the defendant’s convictions of gang assault in the first degree, assault in the first degree, robbery in the first degree under Penal Law § 160.15(1), and assault in the second degree to attempted gang assault in the first degree, attempted assault in the first degree, attempted robbery in the first degree, and attempted assault in the second degree, respectively, and we remit the matter to the Supreme Court, Queens County, for sentencing. People v Aragundi, 2021 NY Slip Op 02811, Second Dept 5-5-21

 

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WITHOUT EVIDENCE THE TWO POSSESSION-OF-A-WEAPON CHARGES RELATED TO DISTINCT EVENTS, CONSECUTIVE SENTENCES SHOULD NOT HAVE BEEN IMPOSED (SECOND DEPT).

The Second Department, reversing the convictions and vacating the sentences, determined there was no evidence the two possession-of-a-weapon charges were based upon distinct events. Therefore consecutive sentences should not have been imposed:

County Court should not have imposed consecutive sentences upon the defendant’s conviction of the two counts of criminal possession of a weapon in the third degree. Sentences imposed for two or more offenses may not run consecutively where, among other things, “a single act constitutes two offenses” … . Here, there was no showing that the defendant’s acts underlying the crimes were separate and distinct and consequently, consecutive sentences could not be imposed (see Penal Law § 70.25[2 … ).

Under the particular circumstances of this case, we reverse the judgments of convictions, vacate the sentences imposed thereon, and remit the matters … for further proceedings, at which the People should be given the opportunity to withdraw their consent to the plea agreement, should they be so advised … . People v Adams, 2021 NY Slip Op 02808, Second Dept 5-5-21

 

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DEFENDANT, A POLICE OFFICER, WAS PROPERLY CONVICTED OF ASSAULT FOR REPEATEDLY PUNCHING THE VICTIM AFTER THE VICTIM WAS HANDCUFFED AND RESTRAINED FACE DOWN ON THE FLOOR (FIRST DEPT).

The First Department upheld the assault and offering a false instrument for filing convictions of a police officer who unnecessarily repeatedly struck the victim after the victim was handcuffed and restrained:

The evidence supports the court’s finding that defendant, an experienced police officer, lacked a reasonable ground to believe that it was necessary to punch the victim repeatedly to prevent the victim from biting him, both when the victim was rear-cuffed and lying face down on the floor of an apartment building lobby and being effectively restrained by defendant and another officer, and after defendant subsequently brought the victim to the building’s rear stairwell without seeking the assistance of any of the other officers present (see Penal Law §§ 35.05[1], 35.15[1], 35.30[1][a]). The evidence also supports the conclusion that all of defendant’s punches were unjustified, and also supports the alternative conclusion that even if the initial punch were justified, the subsequent punches were unjustified, and these punches caused additional injury … .

The evidence also established that defendant intentionally caused concededly false statements or information to be written on officially filed forms … . People v Saladeen, 2021 NY Slip Op 02760, First Dept 5-4-21

 

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IN AFFIRMING THE MURDER CONVICTION OF A 14-YEAR-OLD, THE COURT OF APPEALS HELD THE TRIAL COURT PROPERLY EXCLUDED EXPERT TESTIMONY ABOUT ADOLESCENT BRAIN DEVELOPMENT AND BEHAVIOR (CT APP).

The Court of Appeals, in a brief memorandum, affirmed the murder conviction of a 14-year-old noting that the trial court properly excluded expert testimony about the brain development and behavior of an adolescent without a Frye hearing:

Defendant sought to introduce testimony by an expert witness, concerning the science of adolescent brain development and behavior, to assist the jury in determining whether the People had met their burden of disproving justification. The trial court denied defendant’s request, without conducting a Frye hearing … .

“[T]he admissibility and limits of expert testimony lie primarily in the sound discretion of the trial court” … . The criterion to be applied is “whether the proffered expert testimony would aid a lay jury in reaching a verdict” … . Under the particular facts of this case, the trial court did not abuse its discretion in denying defendant’s request to permit the proposed expert witness testimony. People v Anderson, 2021 NY Slip Op 02735, CtApp 5-4-21

 

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SUPREME COURT SHOULD NOT HAVE DENIED PETITIONER-SEX-OFFENDER’S REQUEST TO REPRESENT HIMSELF IN THE MENTAL HYGIENE LAW ARTICLE 10 CIVIL COMMITMENT PROCEEDING (FOURTH DEPT).

The Fourth Department, reversing the Mental Hygiene Law article 10 civil commitment of petitioner as a dangerous sex offender, determined Supreme Court should not have denied petitioner’s request to represent himself:

We have recognized that a respondent in a Mental Hygiene Law article 10 proceeding “can effectively waive his or her statutory right to counsel” once the court “conducts a searching inquiry to ensure that the waiver is unequivocal, voluntary, and intelligent” … . In the instant case, respondent made a timely and unequivocal request to proceed pro se, the court conducted the requisite searching inquiry, and respondent repeatedly evinced an understanding of each of the court’s warnings to him regarding the possible consequences of proceeding pro se … . The court, however, denied the request because it believed that respondent “[had] a good chance of prevailing” but did not believe that respondent “[had] a chance . . . of prevailing if [the court] let [respondent] go pro se.”

On the record before us, we conclude that the court’s sole rationale for denying the request was its belief that respondent lacked legal training and an understanding of the law, but that is not an appropriate basis on which to deny a request to proceed pro se … . “[M]ere ignorance of the law cannot vitiate an effective waiver of counsel as long as the defendant was cognizant of the dangers of waiving counsel at the time it was made” … . Matter of State of New York v Michael M., 2021 NY Slip Op 02636, Fourth Dept 4-30-21

 

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ALTHOUGH THE VICTIM WAS SHOT AND THE BULLET PASSED THROUGH HIS LEG, THE PROOF REQUIREMENTS FOR SERIOUS PHYSICAL INJURY WERE NOT MET; ASSAULT SECOND CONVICTIONS REDUCED TO ASSAULT THIRD (THIRD DEPT).

The Third Department determined that although the victim had been shot, the evidence of serious physical injury was insufficient. The court reduced the assault second convictions to assault third:

The victim asserted that the bullet entered through the back of the leg just below the kneecap and exited through the front of the leg just above the kneecap. * * *

There was no evidence that the victim lost consciousness after being shot or that a vital organ was damaged. Nor was there any proof, lay or medical, indicating that the victim’s injuries caused a substantial risk of death or were life threatening” … . Similarly, the evidence failed to show “that the victim suffered from a protracted impairment of health or protracted loss or impairment of the function of a bodily organ” … . Although there was testimony regarding the long-term effects of the gunshot wound, no corresponding medical documentation was submitted as proof of the link between the impairment and the initial injury … . Further, although the victim testified that he had two circular scars from the bullet, this testimony alone is not sufficient to support a finding of serious disfigurement … . To prove that the victim’s scars were a serious disfigurement would have required the People to make a record of it, via either a photograph or a detailed description; here, however, the testimony establishes “no more than that the victim had two scars” … .

Although the evidence “falls short of satisfying the statutory definition of serious ‘physical injury'” … , there is no dispute that the victim sustained a “physical injury” (Penal Law § 10.00 [9]). People v Smith, 2021 NY Slip Op 02564, Third Dept 4-29-21

 

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