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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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DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO INVESTIGATE FOUR WITNESSES WHO MAY HAVE CALLED INTO QUESTION THE EYEWITNESS’S ABILITY TO SEE THE SHOOTING AND THE DEFENDANT’S WHEREABOUTS AT THE TIME OF THE SHOOTING; DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing County Court, determined defendant’s motion to vacate his conviction, after a hearing, should have been granted on ineffective assistance grounds. Defense counsel was aware of three witnesses who called into question whether the eyewitness to the shooting was outside where she could have seen the shooting, or inside where she could not. In addition defense counsel was aware of an alibi witness. Defense counsel did not sufficiently investigate these witnesses:

… [T]he case against defendant centered, in part, upon the identification of him as the shooter by the eyewitness. The witnesses identified in the letter sent by the People would have cast further doubt on the eyewitness’ identification testimony, as well as whether she could have even seen the shooting. Yet, the record reflects that counsel made little efforts to reach out to these witnesses and minimal follow-up efforts.

Defendant also argues that he received ineffective assistance due to counsel’s failure to investigate an alibi witness. At the hearing, defendant’s uncle testified that defendant was with him in a house at the time of the shooting and that they were nowhere near the area where the shooting occurred. The uncle further stated that he was willing to testify at trial and left numerous voice messages for defendant’s counsel. Defendant’s counsel testified that she did not receive any voice messages from the uncle but recalled that the uncle would be an alibi witness. Other than stating in a conclusory manner that she was unable to locate the uncle, the record fails to show diligent attempts by counsel to reach him. The uncle’s testimony would have bolstered the defense by providing the jury with conflicting evidence as to defendant’s whereabouts at the time of the shooting. In our view, the failure to investigate this potential alibi defense and the witnesses who would have refuted the eyewitness’ location at the time of the shooting cannot be considered a reasonable trial strategy … . People v Lanier, 2021 NY Slip Op 01094, Third Dept 2-18-21

 

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THE SEARCH WARRANT DID NOT AUTHORIZE THE SEARCH OF DEFENDANT’S VEHICLES; SEIZED ITEMS PROPERLY SUPPRESSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a three-judge dissent, determined that the search warrant did not authorize the search of defendant’s vehicles and the items seized were properly suppressed:

The requirement that warrants must describe with particularity the places, vehicles, and persons to be searched is vital to judicial supervision of the warrant process … . Warrants “interpose the detached and independent judgment of a neutral Magistrate between the interested viewpoint of those engaged in ferreting out crime and potential encroachments on the sanctity and privacy of the individual” … . To further that role, our constitution assigns to the magistrate the tasks of evaluating whether probable cause exists to initiate a search and defining the subjects to be searched … .

The particularity requirement protects the magistrate’s determination regarding the permissible scope of the search. Thus, to be valid, a search warrant must be “specific enough to leave no discretion to the executing officer” … . So important is the role of the neutral and detached magistrate that we have in the past parted ways from federal constitutional jurisprudence when we believed that an emerging rule of federal constitutional law “dilute[s] . . . the requirements of judicial supervision in the warrant process” …

… The application contained no mention of the existence of the vehicles ultimately searched, much less evidence connecting them to any criminality. Indeed, the observed pattern, as described in the affidavit, was for Mr. Gordon [defendant] to proceed from the residence to the street and back, without detouring to any vehicles parked at the residence. … “[N]o observation was reported as to any movement of persons between the house and the [vehicles]” … that would substantiate a belief that the vehicles searched were utilized in the alleged criminal activity.

Nor do we believe that the warrant for Mr. Gordon’s “person” or “premises”—in the context of the factual allegations averred by the detectives—authorized a search of the vehicles. … [T]he mere presence of a vehicle seen at the sight of premises wherein the police suspect criminal activity to be occurring does not by itself provide probable cause to search the vehicle … . People v Gordon, 2021 NY Slip Op 01093, CtApp 2-18-21

 

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2016 REGULATIONS RESTRICTING ATTORNEY’S FEES FOR CLAIMS MADE TO THE OFFICE OF VICTIM SERVICES (OVS) ARE CONSISTENT WITH THE STATUTORY LANGUAGE (EXECUTIVE LAW) AND RATIONAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge dissent and a concurrence, reversing the Appellate Division, determined that the Office of Victim Services (OVS) regulations limiting attorney’s fees for crime victim claimants were consistent with the statutory language and rational:

OVS regulations formerly provided that claimants had a “right to be represented . . . at all stages of a claim” … and, “[w]henever an award [was] made to a claimant who [was] represented by an attorney, [OVS was required to] approve a reasonable fee commensurate with the services rendered, up to $1,000,” unless the request for attorneys’ fees was premised on a claim “submitted without legal or factual basis” … . OVS acknowledges that this meant that attorneys’ fees, if reasonable, were available at all stages of a claim. However, effective January 13, 2016, OVS amended 9 NYCRR § 525.9 to provide that “[a]ny claimant . . . may choose to be represented before [OVS], at any stages of a claim, by an attorney-at-law . . . and/or before the Appellate Division upon judicial review of the office’s final determination,” but “only those fees incurred by a claimant during: (1) the administrative review for reconsideration of such decision . . . ; and/or (2) the judicial review of the final decision of [OVS] . . . may be considered for reimbursement” … .

OVS issued a regulatory impact statement indicating that the “purpose of th[e] rule change [wa]s to limit attorneys’ fees pursuant to article 22 of the Executive Law.” OVS stated that the amendments were “designed to conform the regulations to the enacting statute,” explaining that the prior regulations permitted claimants to recover attorneys’ fees that “far exceed[ed]” the “reasonable expenses” specified under Executive Law § 626 (1). OVS indicates that Victim Assistance Programs (VAPs) are federally funded with a state match, and it emphasized in its regulatory impact statement that it “fund[ed] 228 [VAPs] across New York State, distributing in excess of $35 million to these programs to assist and advocate on behalf of victims and claimants.” The required services provided by the VAPs include, among other things, “assist[ing] victims and/or claimants in completing and submitting OVS applications and assist[ing] claimants through the claim process.” OVS determined that the legislature did not intend that attorneys’ fees incurred in relation to assistance within the scope of services provided by VAPs would be considered reasonable under the statute. Matter of Juarez v New York State Off. of Victim Servs., 2021 NY Slip Op 01091, CtApp 2-18-21

 

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DEFENDANT, A MEMBER OF THE PROUD BOYS, WAS CONVICTED OF ATTEMPTED GANG ASSAULT OF A MEMBER OF ANTIFA; A BOOT IS A DANGEROUS INSTRUMENT; EXPERT TESTIMONY ON THE ANIMOSITY BETWEEN THE PROUD BOYS AND ANTIFA PROPERLY ALLOWED (FIRST DEPT).

The First Department affirmed the conviction of a member of the Proud Boys for the attempted gang assault of an Antifa member. The court held that a boot may constitute a dangerous instrument within the meaning of the assault statutes. In addition, the First Department noted that the People were properly allowed to call an expert witness on extremist groups to explain the animosity between the Proud Boys and Antifa:

Defendants’ intent and attempt to cause physical injury were demonstrated by defendant Kinsman, who while wearing brown leather boots, repeatedly kicked the victim while she was still on the ground and after she had just been repeatedly kicked by another Proud Boy and by defendant Hare who punched the victim and also kicked her multiple times while he was wearing Doc Marten boots … . …

The court providently exercised its discretion in permitting the People to call an expert witness on extremist groups. Some background information regarding the ideology and past conduct of the Proud Boys was permissible to explain the preexisting animosity between the Proud Boys and Antifa at the time of the incident at issue … . … While some of the evidence regarding the Proud Boys’ practices, and in particular racist remarks made by the group’s founder, were immaterial to the issues at trial, and their potential for prejudice outweighed any probative value, the court issued a limiting instruction that the background information provided by the expert was not proof of the defendants’ mental states. People v Kinsman, 2021 NY Slip Op 01009, First Dept 2-15-21

 

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