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DEFENDANT AND HIS SON WERE REPRESENTED BY THE SAME ATTORNEY; DEFENDANT ALLEGEDLY PLED GUILTY TO ATTEMPTED ASSAULT BECAUSE HE WAS TOLD HIS SON WOULD DO JAIL TIME IF DEFENDANT DID NOT ENTER THE PLEA; BECAUSE OF THE ATTORNEY’S CONFLICT OF INTEREST, DEFENDANT’S MOTION TO WITHDRAW HIS PLEA SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing County Court, determined defendant’s motion to withdraw his guilty plea should have been granted. Defendant was called to the scene of his son’s (Nicholas’s) arrest for DWI. Defendant was charged with assaulting one of the officer’s at the scene. Both defendant and his son were represented by attorney Ozman. Although defendant maintained he did not assault the officer, but rather was assaulted by the officer as he was frantically trying to find his son, defendant allegedly agreed to plead guilty to attempted assault in order to ensure a good plea deal for his son. Because defendant maintained his innocence in his interview with probation, however, the judge did not abide by the plea agreement and sentenced defendant to incarceration. Prior to sentencing, defendant had hired a new attorney and moved to withdraw his plea:

… [T]he record as a whole demonstrates that the defendant’s plea of guilty was motivated, at least in part, by coercive circumstances. The defendant averred, inter alia, that Ozman urged him to plead guilty despite his protestations of innocence because it was “very likely” that Nicholas would otherwise “face ‘jail time.'” The record also reflects that the favorable terms of Nicholas’ plea offer were conditioned upon the defendant entering a plea of guilty as part of the same plea agreement … . Moreover, the defendant demonstrated a significant possibility of a conflict of interest arising from Ozman’s joint representation of the defendant and Nicholas. The defendant’s maintenance of his innocence was at odds with Ozman obtaining a favorable plea offer for Nicholas as part of the “package deal,” which also required the defendant to enter a plea of guilty … . Thus, the record suggests that the defendant’s plea of guilty was induced by consideration other than his desire to obtain more favorable sentencing for himself, and that the defendant was deprived of representation that was “singlemindedly devoted to his best interests as required by both the Constitution of the United States and the New York State Constitution” … . People v Wentland, 2021 NY Slip Op 00578, Second Dept 2-3-21

 

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DEFENDANT TOOK THE GUN FROM THE VICTIM AND KILLED THE VICTIM IN SELF DEFENSE; THE DEFENDANT’S BRIEF, TEMPORARY POSSESSION OF THE WEAPON AFTER THE SHOOTING DID NOT CONSTITUTE CRIMINAL POSSESSION OF A WEAPON SECOND DEGREE (SECOND DEPT).

The Second Department, reversing defendant’s possession of a weapon conviction, over a dissent, determined the temporary possession of the gun did not meet the criteria for criminal possession of a weapon second degree. The gun belonged to the victim. During a struggle with the defendant the gun fell to the ground. Both the defendant and the victim dove for the gun. The defendant retrieved it and shot the victim. The defendant held on to the gun very briefly and then disposed of it. The defendant was acquitted of murder:

As reflected by the fact that the jury acquitted the defendant of the murder charge, based upon the defense of justification, the defendant initially took possession of the gun with a valid legal excuse … , and there is no evidence that the defendant retained the gun beyond opportunities to hand it over to the authorities … . The cases cited by our dissenting colleague are clearly distinguishable, involving situations where a defendant retained possession of a gun until it was found by the police … , retained access to the gun after hiding it in a secure location … , acted furtively when confronted by police with a weapon on his person … , or disposed of the weapon during hot pursuit by the police … .

Indeed, our dissenting colleague acknowledges that turning the gun over to authorities is not an element of temporary and lawful possession … . Here, the defendant retained the gun for a brief period while he looked for his brother, and, not finding him, unloaded the gun and disposed of it in the trash. At trial, when he was asked about his intention, the defendant responded, “[m]y intention this is not my gun. Why hold it.” The evidence indicated that the defendant retained the gun for a sufficient time to dispose of it. The fact that he disposed of the gun without turning it into the authorities did not convert his temporary and lawful possession of the gun into illegal possession … . People v Rose, 2021 NY Slip Op 00577, Second Dept 2-3-21

 

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A NEW TRIAL IS REQUIRED BECAUSE THE JUDGE DID NOT RESPOND TO A NOTE FROM THE JURY (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the judge committed a mode of proceedings error by not responding to a note from the jury:

… [A] new trial is required based upon the Supreme Court’s failure to comply with CPL 310.30, in accordance with the procedures set forth in People v O’Rama (78 NY2d 270, 279). CPL 310.30 “imposes two responsibilities on trial courts upon receipt of a substantive note from a deliberating jury: the court must provide counsel with meaningful notice of the content of the note, and the court must provide a meaningful response to the jury” … . Where a trial court fails to fulfill its responsibility to provide meaningful notice of the content of the note, “a mode of proceedings error occurs, and reversal is . . . required even in the absence of an objection” … .

Here, the jury submitted a note requesting to view a specific portion of surveillance video taken from the victim’s building. The Supreme Court failed to notify the parties regarding the existence of the note, failed to read the contents of the note into the record, and failed to respond to the note. People v Everett, 2021 NY Slip Op 00575, Second Dept 2-3-21

 

THE GRAND LARCENY TOOK PLACE IN NEW JERSEY AND IS NOT A “RESULT OFFENSE;” THEREFORE NEW YORK DID NOT HAVE TERRITORIAL JURISDICTION (SECOND DEPT).

The Second Department, reversing County Court, determined the grand larceny indictment should have been dismissed because New York did not have territorial jurisdiction. The grand larceny took place in New Jersey and is not a “result offense:”

Where New York’s territorial jurisdiction over an offense is in dispute, the People bear the burden of establishing jurisdiction under CPL 20.20 beyond a reasonable doubt … . Here, the People did not dispute the defendant’s claim that none of the elements of the alleged offense occurred in New York, and did not seek to establish, for instance, that the complainant’s bank account was located in New York … . Rather, the People argued only that territorial jurisdiction was properly based on CPL 20.20(2)(a) because grand larceny was a “result offense” and the alleged “result” occurred in New York, and the County Court denied the defendant’s jurisdictional challenge on this narrow ground.

“When a specific consequence, such as the death of the victim in a homicide case, is an element of an offense, the occurrence of such consequence constitutes the ‘result’ of such offense. An offense of which a result is an element is a ‘result offense'” (CPL 20.10[3]). The elements of larceny are (1) intent to deprive another of property or to appropriate the same to himself or herself or to a third person, and (2) the wrongful taking, obtaining or withholding of such property … . Contrary to the People’s contention, since no “specific consequence” is an element of grand larceny in the fourth degree, it follows that larceny in the fourth degree is not a “result offense” within the meaning of CPL 20.10(3) … . People v Cousar, 2021 NY Slip Op 00573, Second Dept 4-3-21

 

THE 202O AMENDMENT TO CPL 30.30 WHICH ALLOWS AN APPEAL ALLEGING A VIOLATION OF THE SPEEDY TRIAL STATUTE AFTER A GUILTY PLEA DOES NOT APPLY RETROACTIVELY (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, determined the 2020 amendment to Criminal Procedure Law 30.30 which allows an appeal alleging the violation of the speedy trial statute after a guilty plea does not apply retroactively:

At the time of defendant’s plea in November 2017 and his sentencing in April 2018, it was settled law that a guilty plea forfeited a defendant’s right to claim that the trial court erred in denying his or her CPL 30.30 speedy trial motion … . However, CPL 30.30 (6), which was enacted as part of an omnibus budget bill in April 2019 and became effective on January 1, 2020 … , provides that “[a]n order finally denying a motion to dismiss pursuant to [CPL 30.30 (1)] shall be reviewable upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty.” * * *

“… [I]t is a bedrock rule of law that, absent an unambiguous statement of legislative intent, statutes that revive time-barred claims if applied retroactively will not be construed to have that effect” … . People v Duggins, 2021 NY Slip Op 00336, Third Dept 1-21-21

 

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THE THREAT MADE BY DEFENDANT WAS PERSONAL IN NATURE AND WAS NOT DIRECTED AT THE CIVILIAN POPULATION WITHIN THE MEANING OF THE TERRORISM STATUTE (PENAL LAW 490.20); THE CONVICTION WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE AND WAS AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT). ​

The First Department, reversing defendant’s “terrorism” conviction, determined the evidence was legally insufficient and the conviction was against the weight of the evidence. The defendant threatened to shoot “you guys,” but the threat was personal in nature and was not directed at a “civilian population:”

The evidence of defendant’s “intent to intimidate or coerce a civilian population” (Penal Law § 490.20[1]) was legally insufficient to support the conviction … . We also find that the verdict was against the weight of the evidence in that respect … .

At the end of an altercation, defendant, a Muslim, threatened to shoot “you guys,” referring to several Bangladeshi worshippers at defendant’s mosque. Although there was evidence presented at trial that defendant bore animus toward Bangladeshi people, the threat mentioned no group or population and instead appears to have been based on a personal dispute defendant had with one or more of his fellow worshippers over money or a missing phone. Accordingly, this threat was not directed at a “civilian population” as that term was explained by the Court of Appeals in People v Morales (20 NY3d 240, 247 [2012]). To find that defendant’s act amounted to a terroristic threat would trivialize the definition of terrorism by applying it “loosely in situations that do not match our collective understanding of what constitutes a terrorist act” … . People v DeBlasio, 2021 NY Slip Op 00376, First Dept 1-21-21

 

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THE SUPPRESSION HEARING SHOULD NOT HAVE BEEN REOPENED; EVIDENCE OF UNCHARGED DRUG TRAFFICKING AS BACKGROUND FOR POSSESSION OF A WEAPON SHOULD NOT HAVE BEEN ADMITTED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the suppression hearing should not have been reopened and (Molineux) evidence of uncharged drug-trafficking as background for possession of a weapon was too prejudicial:

The People’s Voluntary Disclosure Form notified defendant of the People’s intent to offer evidence of two statements he made while in custody following his arrest. In each instance, he was overheard urging a codefendant, who was his girlfriend, to tell the authorities that she was the possessor of a pistol recovered at the apartment where they were arrested. The first such statement was overheard by a special agent while defendant and the codefendant were in a holding cell. The second such statement was overheard by a detective while defendant and the codefendant were being driven to Central Booking.

At the initial Huntley hearing, the People called the special agent as a witness, but not the detective. The court ruled that the statement overheard by the special agent was admissible. No evidence was presented regarding the later statement overheard by the detective.

At a pretrial conference 16 months later, the prosecutor, explaining that the special agent was unavailable to testify because he had been transferred to an assignment outside the United States, asked the court to reopen the suppression hearing to allow the detective to testify to the statement he allegedly overheard. …

The court should not have reopened the hearing. The prosecution had a full and fair opportunity to present both of its witnesses and seek admission of both statements, but chose not to … , and the court had issued a ruling on the suppression motion … . This is not a case in which the omission of evidence at the initial hearing resulted from “a flaw in the proceeding” … . People v Nunez, 2021 NY Slip Op 00266, First Dept 1-19-21

 

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THE EVIDENCE DID NOT SUPPORT THE GROUND FOR SUPPRESSION OF A SHOTGUN AND SHOTGUN SHELL RELIED ON BY COUNTY COURT; ALTHOUGH THE PEOPLE RAISED OTHER GROUNDS FOR JUSTIFICATION OF THE SEARCH AND SEIZURE, THOSE GROUNDS CANNOT BE ADDRESSED ON APPEAL BECAUSE COUNTY COURT DID NOT RULE ON THEM; MATTER REMITTED FOR CONSIDERATION OF THE PEOPLE’S OTHER ARGUMENTS (THIRD DEPT).

The Third Department determined the motion to suppress the shotgun and shotgun shell should have been granted on the ground raised on appeal. The People raised other grounds for suppression on appeal. The Third Department noted it cannot consider grounds for suppression on which the motion court did not rule on and remitted the matter for consideration of the other grounds for suppression raised by the People:

County Court found that the shotgun shell was discovered on defendant’s person during a limited protective pat-down search of defendant, which then provided law enforcement with probable cause to search the vehicle. However, this finding is not supported by the evidence presented at the suppression hearing, which demonstrated that the search of the vehicle actually preceded the search of defendant’s person and discovery of the shotgun shell. Although the People raised other arguments that could potentially justify the search of the vehicle and defendant’s person, this Court is statutorily restricted from considering issues not ruled upon by the trial court … .  We are therefore constrained to reverse the denial of defendant’s suppression motion. Accordingly, we will hold the appeal in abeyance and remit the matter to County Court to review the evidence presented at the suppression hearing, consider any alternate bases to suppress the physical evidence and render a new determination on defendant’s motion … . People v Kabia, 2021 NY Slip Op 00209, Third Dept 1-14-21

 

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THE JURY WAS ERRONEOUSLY ALLOWED TO CONSIDER A THEORY OF BURGLARY WITH WHICH DEFENDANT WAS NOT CHARGED; BURGLARY CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s burglary convictions, determined the jury should not have been instructed to consider a theory of burglary (intent to assault versus intent to damage property) with which defendant was not charged:

A defendant has a right to be tried only for the crimes charged in the indictment … . “Where the prosecution is limited by the indictment or bill of particulars to a certain theory or theories, the court must hold the prosecution to such narrower theory or theories” … . This rule applies in cases charging burglary, where it is not normally necessary for the People to demonstrate the exact crime which the defendant intended to commit while inside the building … .

Here, we agree with the defendant that the People limited their theory of burglary in their bill of particulars, which incorporated the allegations of the criminal complaint, to the intent to commit property damage and/or theft … . Therefore, the Supreme Court erred in permitting the prosecutor to argue, during summation, and in permitting the jury to consider, the uncharged theory that the defendant intended to assault the complainant … . People v Petersen, 2021 NY Slip Op 00193, Second Dept 1-13-21

 

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THE EVIDENCE DID NOT SUPPORT FINDING THE APPELLANT IN THIS JUVENILE DELINQUENCY PROCEEDING MADE A TERRORISTIC THREAT IN VIOLATION OF PENAL LAW 490.20; THERE WAS NO EVIDENCE OF AN INTENT TO INTIMIDATE THE CIVILIAN POPULATION (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence in this juvenile delinquency proceeding did not support finding the appellant student made a terroristic threat. The issue was not preserved but the appeal was considered in the interest of justice:

The student testified that one morning during class some of the students were joking and talking when the appellant and another student got into “a little argument,” and the appellant told that student that he “[was] going to be 14 years old, chopped up in somebody’s backyard, and he’s going to get a white person to shoot up the school.” * * *

“Penal Law article 490 was enacted shortly after the attacks on September 11, 2001, to ensure that terrorists are prosecuted and punished in state courts with appropriate severity” … . “In construing the statute, courts must be cognizant that ‘the concept of terrorism has a unique meaning and its implications risk being trivialized if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act'” … . As relevant here, Penal Law § 490.20 (1) provides that a person is guilty of making a terroristic threat when “with intent to intimidate . . . a civilian population . . . he or she threatens to commit or cause to be committed a specified offense and thereby causes a reasonable expectation or fear of the imminent commission of such offense.” We agree with the appellant that the presentment agency presented no evidence of an intent by the appellant to intimidate a civilian population with his statements … . Matter of Jaydin R., 2021 NY Slip Op 00176, Second Dept 1-13-21

 

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