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WAIVER OF APPEAL OF THE UNDERLYING OFFENSE DOES NOT PRECLUDE APPEAL OF THE SENTENCE IMPOSED FOR A SUBSEQUENT VIOLATION OF PROBATION; SENTENCE DEEMED HARSH AND EXCESSIVE (FOURTH DEPT).

The Fourth Department determined defendant’s sentence was harsh and excessive and noted a waiver of appeal for the underlying offense does not apply to an appeal of the sentence imposed for a subsequent violation of probation:

… [A]s defendant contends and the People correctly concede, even if defendant executed a valid waiver of the right to appeal at the underlying plea proceeding, it would not encompass her challenge to the severity of the sentence imposed following her violation of probation … . We agree with defendant that the sentence is unduly harsh and severe. In light of defendant’s young age, minimal criminal history, and prior efforts to address her substance abuse issues, as well as the nonviolent nature of the underlying crimes and the relatively minor infractions for which she was discharged from her treatment program thereby resulting in her violation of probation, we modify the judgment as a matter of discretion in the interest of justice … by reducing the sentence on each count to a determinate term of imprisonment of three years, to be followed by the two years of postrelease supervision imposed by County Court, with the sentences remaining concurrent. People v Griffin, 2020 NY Slip Op 05645, Fourth Dept 10-9-20

 

BURGLARY SECOND COUNT DISMISSED AS A LESSER INCLUSORY COUNT OF THE TWO BURGLARY FIRST COUNTS (FOURTH DEPT).

The Fourth Department dismissed the burglary second count as a lesser inclusory count of the two burglary first counts:

…[C]ount three of the indictment, charging burglary in the second degree, must be dismissed as a lesser inclusory concurrent count of counts one and two, charging burglary in the first degree (see CPL 300.40 [3] [b] …). People v Smith, 2020 NY Slip Op 05643, Fourth Dept 10-9-20

 

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CITIZEN INFORMANT WHO WALKED INTO THE POLICE STATION PROVIDED SUFFICIENT INFORMATION TO JUSTIFY APPROACHING A VAN IN WHICH DEFENDANT WAS SLEEPING, LEADING TO DEFENDANT’S ARREST; A TWO-JUSTICE DISSENT ARGUED THE INFORMATION PROVIDED BY THE FACE-TO-FACE INTERVIEW WITH THE INFORMANT DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the police, after interviewing a citizen informant who walked into the police station, had reasonable suspicion to approach a van in which the defendant was sleeping. Thereafter the police were justified in asking the defendant to step out of the van for safety reasons and in arresting the defendant when an officer saw a handgun in defendant’s waistband. The dissent argued the informant (who identified himself to the police but was not identified to the defendant) did not provide sufficiently detailed information to justify approaching the van:

…[T]he testimony of a police officer during the suppression hearing established that a citizen informant walked into a police station at 4:30 a.m. and reported that two men had “ripped him off” during “a drug deal gone wrong.” The informant, who identified himself by name to the officer but whose identity was not disclosed to defendant, appeared to be angry and upset and did not seem to be intoxicated. The informant alleged, inter alia, that the two men were in a purple minivan at a specific address on Stevens Street in the City of Buffalo, and that “there were drugs in the vehicle” and one of the men “was holding [a] handgun in his lap.” The police officer interviewed the informant for 10 to 15 minutes, during which time the officer had an opportunity to evaluate his reliability on the basis of his appearance and demeanor … . The informant’s reliability was enhanced because he identified himself to the officer and reported that he had attempted to take part in a drug transaction, thus making a declaration against penal interest and subjecting himself to potential prosecution for his own criminal activity … . The informant also waited at the police station while officers investigated the allegations, thereby subjecting himself to “the criminal sanctions attendant upon falsely reporting information to the authorities” … . Thus, we conclude that the People established the reliability of the informant by establishing that the officer obtained information from him during a face-to-face encounter … , and that information did not constitute an anonymous tip … .

From the dissent:

… [A]lthough the majority relies on the ability of the police “to evaluate [the] reliability [of the informant]” during face-to-face contact … , the testimony of the police officer who met the informant reveals that the officer lacked sufficient information to make such an evaluation. The officer believed that the informant appeared agitated, and conceded that he did not know whether the informant was sober. The informant offered the officer no description of the men who purportedly “ripped him off” or how the alleged drug deal had gone wrong, and the officer testified that he never even asked the informant when that incident took place. Instead, the informant offered no more than the description of the outside of a vehicle … . People v Edwards, 2020 NY Slip Op 05672, Fourth Dept 10-9-20

 

DEFENDANT WAS NOT PRESENT AT A SIDEBAR CONCERNING THE BIAS OF A PROSPECTIVE JUROR, CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defendant was deprived of his right to be present at a side bar concerning the bias of a prospective juror:

A … prospective juror was peremptorily excused by defendant’s counsel, however, and, during a sidebar conference at which defendant was not present, that juror was questioned “to search out [her] bias, hostility or predisposition to believe or discredit the testimony of potential witnesses” (Antommarchi, 80 NY2d at 250). Consequently, we conclude that, “absent a knowing and voluntary waiver by defendant of his right to be present at that sidebar conference, his conviction cannot stand” … . The only evidence in the record concerning a waiver consists of a conversation between the court, defendant’s counsel and codefendant’s counsel that occurred after the prospective juror was excused, in which codefendant’s counsel indicated that he had just discussed with codefendant the right to approach the bench during such conferences, and defendant’s counsel merely assented. Inasmuch as the discussion was vague and prospective, and there is no indication that defendant or defendant’s counsel were waiving defendant’s Antommarchi rights retrospectively, that conversation is insufficient to establish that defendant waived those rights concerning the questioning of the prospective juror at issue here. We therefore reverse the judgment of conviction and grant a new trial. People v Mckenzie-Smith, 2020 NY Slip Op 05653, Fourth Dept 10-9-20

 

SUPREME COURT SHOULD HAVE RESTRICTED THE RELEASE OF THE NAMES OF COMPLAINANTS AND COMPLAINANTS’ PARENTS FOR THEIR PROTECTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined Supreme Court should have restricted the release of the names of complainants and their parents for their protection:

… [T]he application by the People pursuant to CPL 245.70(6) is granted to the extent that the order … is modified by directing that the disclosure of the names of complainants 1, 2, and 3 shall be delayed until the commencement of the trial and shall be provided to defense counsel only, and that the disclosure of the names of the parents of complainants 1, 2, and 3 shall be delayed until 15 days prior to the commencement of the trial and shall be provided to defense counsel only … . People v Harrigan, 2020 NY Slip Op 05612, Second Dept 10-8-20

 

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A SINGLE PROMOTING PRISON CONTRABAND CONVICTION FOUR YEARS BEFORE DID NOT SUPPORT A TEN POINT ASSESSMENT FOR UNSATISFACTORY CONDUCT; RISK LEVEL REDUCED FROM TWO TO ONE (SECOND DEPT).

The Second Department determined the 10 point assessment for unsatisfactory conduct was not supported and reduced defendant’s risk level from two to one:

… [T]he record does not contain clear and convincing evidence to support the assessment of 10 points under risk factor 13, for “unsatisfactory” conduct while confined, based upon his conviction of the class A misdemeanor of promoting prison contraband in the second degree (Penal Law § 205.20). This conviction constituted the sole act of misconduct while confined cited by the People, and it occurred approximately four years before the SORA hearing, prior to the defendant’s transfer to State prison. Since the defendant’s misconduct was neither recent nor repeated, the assessment of points for that misdemeanor was not supported by the record … . People v Hernandez, 2020 NY Slip Op 05540, Second Dept 10-7-20

 

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ROBBERY AND ASSAULT SECOND CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF THE WEAKNESS OF THE EVIDENCE OF PHYSICAL INJURY (SECOND DEPT).

The Second Department, reducing defendant’s convictions, determined the robbery and assault second degree convictions were against the weight of the evidence because of the weakness of the evidence of physical injury. The convictions were reduced to robbery and assault third degree:

“Physical injury” is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). …

Here, the victim gave testimony about an incident in which the defendant attacked her and forcibly stole property from her. During the incident, the defendant pushed the victim down onto a bed, bound her wrists with a coaxial cable, placed the cable around her neck, and placed her in a choke hold with his arm across her throat. After the incident, the victim had an indentation on her wrist where the cord had been tied, her wrist was sore and had redness, and she had a red mark on her neck. She was “pretty numb” at the time and was not experiencing pain. She declined to go to the hospital. A few days later, she had difficulty swallowing and her throat was “kind of sore” for “[j]ust a couple of days.” When she testified before the grand jury, approximately one week after the incident, she was asked if she had any pain or discomfort, and she answered, “just the muscle in my arm.” Under these particular facts, the weight of the evidence does not support a finding that the victim suffered impairment of physical condition or substantial pain. Accordingly, we reduce the conviction of robbery in the second degree to robbery in the third degree … . People v Tactikos, 2020 NY Slip Op 05535, Second Dept 10-7-20

 

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ALTHOUGH THE EVIDENCE WAS DEEMED LEGALLY SUFFICIENT TO SUPPORT THE CONVICTIONS STEMMING FROM AN ATTACK ON THE COMPLAINANT, THOSE CONVICTIONS WERE DEEMED AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF THE WEAKNESS OR ABSENCE OF IDENTIFICATION EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined: (1) the evidence of a sexual touching of complainant by defendant captured on video in the laundromat was legally insufficient; (2) the evidence that defendant attacked the complainant after she left the laundromat was legally sufficient; (3) but the convictions stemming from the attack on the complainant after she left the laundromat were against the weight of the evidence because of the weakness or absence of identification evidence. So this is a rare decision where the evidence was explicitly found legally sufficient but the related convictions were found to be against the weight of the evidence:

Viewing the evidence in the light most favorable to the prosecution, here, there was legally sufficient evidence to support the defendant’s convictions of sexual abuse in the first degree and criminal obstruction of breathing or blood circulation. The surveillance video footage showed the defendant leaving the laundromat just after the complainant had left. Both the complainant and the defendant were shown walking down Woodhaven Boulevard, and the defendant’s clothing matched the complainant’s description of the clothes worn by her assailant. Therefore, a rational juror could have concluded that the defendant was the perpetrator of the assault on the complainant that occurred near her home.

However, the evidence was not legally sufficient to support the defendant’s conviction of sexual abuse in the third degree. …

… [O]ur viewing of the video recording taken inside the laundromat did not establish that the contact between the defendant and the complainant as he was exiting the laundromat was of a sexual nature. At best, the video was ambiguous as to the nature of the touching depicted. * * *

In the face of the markedly disparate descriptions offered by the detectives and the complainant, and in the absence of an in-court identification, the verdict of the jury finding the defendant guilty of sexual abuse in the first degree and criminal obstruction of breathing or blood circulation was against the weight of the evidence … . People v Kassebaum, 2020 NY Slip Op 05529, Second Dept 10-7-20

 

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CO-DEFENDANT’S REDACTED STATEMENT SHOULD NOT HAVE BEEN ALLOWED IN EVIDENCE, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the co-defendant’s redacted admission should not have been admitted in evidence:

… [W]e agree with the defendant that, under the instant circumstances, the Supreme Court’s admission of codefendant Jason Villanueva’s redacted statement to the police violated the rule articulated in Bruton v United States (391 US 123), because the subject redaction would have caused the jurors to “realize that the confession refers specifically to the defendant” or to one of the other nonconfessing codefendants … . In addition, the error was not harmless. “[I]t cannot be said that ‘there is no reasonable possibility that the erroneously admitted [statement] contributed to the conviction'” … , given that the statement was inconsistent with the defendant’s justification defense, and the court failed to give the jurors a proper limiting instruction to only consider the statement against Villanueva. People v Casares, 2020 NY Slip Op 05520, Second Dept 10-7-20

 

COUNTY COURT SHOULD HAVE FURTHER RESTRICTED DISCOVERY FOR THE PROTECTION OF WITNESSES (SECOND DEPT).

The Second Department, reversing (modifying) County Court, determined certain aspects of the People’s application to restrict discovery for witness safety should have been granted:

… [T]he application to vacate or modify the order … is granted to the extent that the order is modified by deleting the provision thereof granting the People’s motion for a protective order only to the extent that the People may withhold the name of the confidential informant until 15 days prior to a scheduled pre-trial hearing or trial, and substituting therefor a provision granting the People’s motion for a protective order to the extent that (1) disclosure of the audio and video recordings of the narcotics sales shall be made to defense counsel only, to be viewed at the prosecutor’s office, (2) disclosure of the name and contact information of the confidential informant shall be delayed until the commencement of trial, and (3) disclosure of the names and work affiliation of the undercover personnel shall be delayed until the commencement of trial … . People v Jeanty, 2020 NY Slip Op 05555, Second Dept 10-7-20

 

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