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RESPONDENT JUVENILE WAS DENIED HER RIGHT TO A SPEEDY TRIAL IN THIS JUVENILE DELINQUENCY PROCEEDING (THIRD DEPT).

The Third Department, reversing Family Court, determined respondent juvenile was denied her right to a speedy trial in this juvenile delinquency proceeding. The respondent initially waived her speedy trial rights to allow a diagnostic evaluation, which would take 90 days. Before the evaluation was complete, in response to allegations that respondent was acting aggressively in the nonsecure facility where she was detained, Family Court ordered respondent to a secure facility, thereby making the diagnostic evaluation impossible. At that point respondent rescinded her speedy trial waiver:

… [A]lthough respondent waived her right to a speedy fact-finding hearing during the first appearance held on April 4, 2019, the waiver was expressly limited to the time necessary to complete the diagnostic evaluation. By entering an order on June 26, 2019 directing respondent’s transfer from Elmcrest Children’s Center to a secure facility, Family Court knowingly eliminated the possibility that the diagnostic evaluation would be continued and completed. Under such circumstances, respondent’s waiver of her speedy trial rights effectively expired on June 26, 2019. Consequently, Family Court should have commenced a fact-finding hearing within three days of June 26, 2019 or, alternatively, brought the parties before it and either obtained a further waiver of respondent’s speedy trial rights or set forth on the record its reasons for adjourning the fact-finding hearing beyond the prescribed three-day period … . Inasmuch as Family Court failed to do any of the foregoing and instead did not commence the fact-finding hearing until August 15, 2019, some 50 days after the expiration of respondent’s speedy trial waiver, we find that Family Court violated respondent’s right to a speedy fact-finding hearing … . Matter of Erika UU., 2021 NY Slip Op 01543, Third Dept 3-18-21

 

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THE POLICE DID NOT DEMONSTRATE A LAWFUL BASIS FOR IMPOUNDING DEFENDANT’S VEHICLE AND CONDUCTING AN INVENTORY SEARCH; DEFENDANT’S MOTION TO SUPPRESS THE SEIZED EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress evidence seized from his vehicle should have been granted. The police did not demonstrate a lawful bas for impounding the vehicle and conducting an inventory search:

… [T]he People failed to establish the lawfulness of the impoundment of the defendant’s vehicle and subsequent inventory search … . Although, at the suppression hearing, a police officer testified that the defendant’s vehicle was “parked on the corner” at the time of the defendant’s arrest, there was no testimony that the vehicle was parked illegally or that there were any posted time limits pertaining to the space where the vehicle was parked. The People presented no evidence demonstrating any history of burglary or vandalism in the area where the defendant had parked his vehicle, and the officer testified that the vehicle was driven to the precinct because it was used in the commission of a crime. Thus, the People failed to establish that the impoundment of the defendant’s vehicle was in the interests of public safety or part of the police’s community caretaking function … . Moreover, although the officer who performed the inventory search of the defendant’s vehicle testified that the policy for conducting such searches was located in the Patrol Guide, the People presented no evidence demonstrating the requirements of the policy for impounding and searching a vehicle, or whether the officer complied with that policy when she conducted the inventory search of the defendant’s vehicle … . People v Rivera, 2021 NY Slip Op 08256, Second Dept 3-17-21

 

DEFENDANT’S MOTION TO WITHDRAW HIS PLEA, AND THE CIRCUMSTANCES SURROUNDING HIS ACCEPTANCE OF THE PLEA OFFER, RAISED THE POSSIBILITY THAT DEFENDANT ACCEPTED THE PLEA OFFER TO MAKE SURE HIS BAIL WOULD NOT BE INCREASED; DEFENDANT WAS WORRIED ABOUT BEING ABLE TO FIND CARE FOR HIS THREE-YEAR-OLD SON; BAIL SHOULD NOT BE A CONSIDERATION IN PLEA NEGOTIATIONS; THE MOTION TO WITHDRAW THE PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FIRST DEPT).

The Second Department, reversing County Court, determined it was an abuse of discretion to deny defendant’s motion to withdraw his plea without holding a hearing. The matter was remitted for a hearing. The defendant was given a “last chance” to accept a plea offer just before the suppression hearing began. Defense counsel asked about bail at that time and then defendant met with defense counsel before deciding to take the plea offer. In his motion to withdraw the plea, defendant alleged that, based upon his discussion with defense counsel, he thought his bail would be substantially increased if he didn’t take the plea offer and was concerned about taking care of his three-year-old son. He had brought his son  to court because he couldn’t find a babysitter:

Bail status “has no legitimate connection to the mutuality of advantage underlying plea bargaining because it does not relate either to the more lenient sentence for which the defendant is negotiating or to the waiver of trial and the certainty of conviction the prosecution is seeking” … . Accordingly, “[t]he prospect of an immediate change in bail status, therefore, is an inappropriate consideration in plea negotiations” … .

Here, the plea bargaining process and the defendant’s affidavit raise a legitimate question as to the voluntariness of the defendant’s plea and, therefore, the defendant’s motion should not have been denied without a hearing … . The County Court’s response to defense counsel’s questions regarding bail, which included a statement that this was the defendant’s “last chance” to accept the offer, raise a legitimate question as to whether the defendant understood that the court’s purportedly forthcoming bail decision was contingent on acceptance of the offer. Notably, after the defendant accepted the plea, the court never brought up the issue of changing the defendant’s bail status, effectively continuing his release on cash bail without any changes … .  People v Swain, 2021 NY Slip Op 01430, Second Dept 3-10-21

 

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REPORTING AN ALLEGED SEXUAL ASSAULT TO THE POLICE DOES NOT EVINCE MALICE SUFFICIENT TO OVERCOME THE QUALIFIED IMMUNITY ASSOCIATED WITH MAKING THE REPORT; THE DEFAMATION ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Manzanet-Daniels, determined the defamation action based upon defendant’s filing a sexual assault complaint with the police was protected by qualified immunity and the nature of the complaint did not evince the malice required to overcome the qualified immunity. The sexual assault trial ended in a hung jury and defendant agreed to an adjournment in contemplation of dismissal as the disposition of her charges against plaintiff. Plaintiff was formerly an assistant district attorney and defendant was a reporter for the Daily News:

The doctrine of qualified immunity shields individuals who, like defendant, act “in the discharge of some public or private duty, legal or moral, or in the conduct of [her] own affairs, in a matter where h[er] interest is concerned” … . To overcome the qualified privilege protecting defendant’s statements to the police, plaintiff was required to sufficiently allege that she published the statements with actual malice, i.e., that defendant “acted out of personal spite or ill will, with reckless disregard for the statement’s truth or falsity, or with a high degree belief that [her] statements were probably false” … . * * *

Plaintiff’s allegations fall short of alleging actual malice sufficient to overcome the qualified privilege attaching to defendant’s statements to the police. Even as alleged in the complaint, the statements are a straightforward rendition of the incident that defendant claims occurred during a car ride with plaintiff. There was nothing excessive or “vituperative” in the character of the reported statements that would support an inference of actual malice … . Indeed, it is difficult to see how defendant could have been more succinct or restrained in her description of the events while accomplishing her purpose: to report to the police that she had been the victim of sexual assault. Sagaille v Carrega, 2021 NY Slip Op 01369, First Dept 3-9-21

 

COUNTY COURT’S TELLING DEFENDANT HIS SENTENCE WOULD BE ENHANCED IF HE DID NOT COOPERATE WITH THE PROBATION DEPARTMENT DID NOT ADEQUATELY INFORM DEFENDANT HIS STATEMENT IN THE PROBATION INTERVIEW THAT HE DID NOT REMEMBER THE BURGLARY WOULD TRIGGER AN ENHANCED SENTENCE; SENTENCE VACATED (THIRD DEPT).

The Third Department, vacating defendant’s sentence, determined that County Court’s telling defendant he would enhance defendant’s sentence if defendant did not cooperate with the Probation Department did not adequately inform defendant his sentence would be enhanced if he told the Probation Department he did not remember the burglary to which he entered a plea:

Prior to adjourning the matter for sentencing, County Court stated to defendant, “It’s important that you cooperate with the Probation Department . . ., because if you . . . didn’t cooperate with the presentence investigation report, then I could enhance the sentence and sentence you to more time.” County Court did not, however, expressly advise defendant (and defendant, in turn, did not agree) that he must provide truthful answers to the Probation Department, refrain from making statements that were inconsistent with his sworn statements during the plea colloquy and/or avoid any attempt to minimize his conduct in the underlying burglary … . Further, County Court summarily denied defendant’s oral motion to withdraw his plea upon this ground and, despite defendant’s request for a hearing, County Court made no further inquiry as to defendant’s allegedly inconsistent statements; rather, County Court simply concluded that defendant’s stated inability to recall the burglary at the time of his interview with the Probation Department constituted a failure to “cooperate” in the preparation of the presentence investigation report. Given the subjective nature of the court’s requirement that defendant “cooperate” with the Probation Department and the court’s corresponding lack of further inquiry, County Court erred in imposing an enhanced sentence without first affording defendant an opportunity to withdraw his plea … . People v Ackley, 2021 NY Slip Op 01293, Third Dept 3-4-21

 

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ALTHOUGH THE CO-DEFENDANT WAS SO INFORMED IN DEFENDANT’S PRESENCE, DEFENDANT WAS NOT DIRECTLY INFORMED OF THE POSSIBILITY OF DEPORTATION BY THE JUDGE; MATTER REMITTED TO GIVE DEFENDANT THE OPPORTUNITY TO MOVE TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT).

The Second Department, remitting the matter to allow defendant to move to withdraw his guilty plea, determined, although the co-defendant, in defendant’s presence, was informed of the possibility of deportation based upon the plea, the defendant, who did not speak English, was not directly so informed by the judge:

During that proceeding, the court posed a question directly to “Mr. Vidalis,” asking if the codefendant understood that he could be deported if he entered a plea of guilty, to which the codefendant answered in the affirmative. The court then stated to the defendant, “Mr. Tapia; do you understand that?” The defendant answered in the affirmative. The court then individually asked the codefendant and the defendant if they had fully discussed “the immigration consequences of this case with your attorney,” to which the defendant answered in the affirmative. However, the court did not specifically instruct the defendant, who required a Spanish interpreter to understand the court and had only a sixth-grade education, that he could be deported if he entered a plea of guilty, nor did the court use the words “deported” or “deportation” in any statement posed directly to the defendant. * * *

… [W]hile the plea record demonstrates that the Supreme Court specifically advised the codefendant of the possibility that he could be deported as a consequence of his plea, the court, in addressing the defendant, simply asked, “Mr. Tapia; do you understand that?” … . In light of the defendant’s limited education and need for a Spanish interpreter to understand the court’s remarks, the court’s limited inquiry as to whether the defendant understood “that” did not ensure the defendant’s understanding that he could be deported as a consequence of his own plea, as opposed to his mere recognition that the codefendant faced deportation consequences … . People v Tapia, 2021 NY Slip Op 01274, Second Dept 3-3-21

 

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DEFENSE COUNSEL’S STATING TO THE COURT THAT DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY PLEA WAS FRIVOLOUS DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE COUNSEL (SECOND DEPT).

The Second Department, remitting the matter for a report on defendant’s motion to withdraw his guilty plea, determined defense counsel, by stating to the court that defendant’s motion was frivolous, had taken a position adverse to the client:

The defendant pleaded guilty to assault in the first degree, but at sentencing, the defendant stated that he wished to withdraw his plea, which he claimed had been coerced by his counsel. The County Court relieved defense counsel, and assigned new counsel to represent the defendant. Subsequently, the defendant’s new counsel advised the court that after evaluating the evidence, the defendant’s allocution, and after speaking to the defendant and his prior attorney, a motion to withdraw the plea of guilty would be frivolous. The court granted the defendant a number of adjournments to permit him to retain private counsel to pursue his motion to withdraw his plea, but when the defendant failed to do so, the court ultimately sentenced him, while he was still represented by the second assigned counsel. …

We agree with the defendant that his right to counsel was adversely affected, and he received ineffective assistance of counsel, when his counsel took a position adverse to his … . The County Court should have appointed new counsel to represent the defendant with respect to the motion to withdraw his plea of guilty … . People v Fellows, 2021 NY Slip Op 01269, Second Dept 3-3-21

 

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DEFENDANT’S MOTION TO WITHDRAW HIS PLEA WAS MADE PURSUANT TO CPL 220.60, NOT CPL 330.30; THEREFORE THE “OUTSIDE THE RECORD” EVIDENCE SUBMITTED IN SUPPORT OF THE MOTION SHOULD HAVE BEEN CONSIDERED; MATTER REMITTED (SECOND DEPT). ​

The Second Department, reversing County Court and remitting the defendant’s motion to withdraw his plea, determined defendant’s motion was made pursuant to CPL 220.60, not CPL 330.30. Therefore the evidence submitted by the defendant demonstrating his innocence of the charged crime could properly be considered. County Court had not considered the motion because the supporting evidence was outside the record:

The defendant’s motion to withdraw his plea of guilty was clearly made pursuant to CPL 220.60(3), and the County Court should not have deemed it to be a motion to set aside a verdict pursuant to CPL 330.30(1). CPL 220.60(3) provides that “[a]t any time before the imposition of sentence, the court in its discretion may permit a defendant who has entered a plea of guilty . . . to withdraw such plea, and in such event the entire indictment, as it existed at the time of such plea, is restored” … . “The decision as to whether to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the court and generally will not be disturbed absent an improvident exercise of discretion” … . In general, “such a motion must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea” … . “When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry ‘rest[s] largely in the discretion of the Judge to whom the motion is made’ and a hearing will be granted only in rare instances” … .

Here, the County Court, improperly relying upon CPL 330.30(1), determined that the defendant’s submissions in connection with his motion to withdraw his plea were outside the record and did not consider them. People v Murphy, 2021 NY Slip Op 08203, Second Dept 2-24-21

 

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THE ROBBERY COULD NOT BE COMMITTED WITHOUT COMMITTING THE ASSAULT; ASSAULT COUNT DISMISSED AS MULTIPLICITOUS; ISSUE CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s assault first conviction, determined the robbery first and assault first counts were multiplicitous. The redundant count was dismissed in the interest of justice (error was not preserved):

“An indictment is multiplicitous when two separate counts charge the same crime” … . “Multiplicity does not exist where each count requires proof of an additional fact that the other does not” or where “a conviction on one count would not be inconsistent with acquittal on the other” … . “If an indictment is multiplicitous it creates the risk that a defendant will be punished for, or stigmatized with a conviction of, more crimes than he actually committed” … . Here, the record reflects that the jury charges regarding the count of assault in the first degree and the count of robbery in the first degree were essentially identical since one cannot commit robbery in the first degree under Penal Law § 160.15(1) without simultaneously committing assault in the first degree under Penal Law § 120.10(4) … . As such, those charges were multiplicitous … . Although the dismissal of the multiplicitous count will not affect the duration of the defendant’s sentence of imprisonment, it is nevertheless appropriate in this case to dismiss the count charging assault in the first degree in consideration of the stigma attached to the redundant convictions … . People v Edmondson, 2021 NY Slip Op 08201, Second Dept 2-24-21

 

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THE JURY WAS NOT INSTRUCTED THAT ACQUITTAL ON THE TOP COUNT BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE LESSER COUNT; ALTHOUGH DEFENSE COUNSEL DID NOT OBJECT TO THE JURY INSTRUCTIONS, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, reversing defendant’s attempted assault conviction, in a full-fledged opinion by Justice Manzanet-Daniels, determined the jury instructions did not make it clear that if defendant was acquitted of the top count (attempted assault first) based upon the justification defense, it must not consider the lesser count (attempted assault second). Defendant was acquitted of attempted assault first and convicted of attempted assault second. Although defense counsel did not object to the jury instruction, the appeal was considered in the interest of justice:

The trial court instructed the jury that defendant had raised justification as a defense with respect to counts one and two and stated that the People were required to prove three elements to establish defendant’s guilt on count one, including “that defendant was not justified.” With respect to count two, the court stated that defendant had also raised the defense of justification. The court stated that as an element of count two the People were required to prove beyond a reasonable doubt that “the defendant was not justified.” * * *

The trial court here did not give the required Velez [131 AD3d 129] instruction. … [T]he trial court indicated to the jury that the attempted first-degree and second-degree assault charges … were wholly independent, even if the prosecution had not disproved justification as to the greater charge. The trial court … charged justification separately with respect to the two counts with no mention on the verdict sheet that acquittal on the greater charge would necessitate an acquittal on the lesser charge … . The court compounded the error by giving the same erroneous instruction in response to a note from the jury. People v Herrera, 2021 NY Slip Op 01148, First Dept 2-23-21

 

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