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DNA FOUND ON THE MURDER VICTIM’S BODY WAS LINKED TO THE DEFENDANT WHO WAS ARRESTED TWO YEARS AFTER THE MURDER; THERE WAS NO OTHER EVIDENCE CONNECTING DEFENDANT TO THE VICTIM OR TO THE AREA WHERE THE VICTIM WAS FOUND; THE SECOND DEPARTMENT, OVER AN EXTENSIVE DISSENT, FOUND THE EVIDENCE LEGALLY INSUFFICIENT TO SUPPORT THE CONVICTION (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction, over an extensive dissent, determined the evidence was legally insufficient. Defendant was arrested two years after the victim’s death based upon DNA found on the victim. No evidence placing defendant near the scene of the crime was presented:

On the morning of October 3, 2013, the 23-year-old victim, who had a history of drug use, was found dead in a wooded area known as Froehlich Farms, in Suffolk County. The victim’s injuries, as well as the condition in which her body was found, indicated that she had been sexually assaulted and killed by strangulation within 12 hours to a day before her body was found. More than two years after her death, the defendant was charged with murder in the second degree after his DNA profile was matched to a single source partial profile generated from various swab samples taken as part of a sexual assault kit performed on the victim.

At the trial, the People presented no evidence placing the defendant at or near the scene of the crime, or linking him in any way to the victim, during the critical time frame in which the murder was believed to have occurred. Nor did the People offer any evidence showing that the sexual contact between the defendant and the victim occurred at or near the time of the murder. At most, the DNA evidence established, beyond a reasonable doubt, that the defendant had sexual contact with the victim at some unspecified time and place. People v Romualdo, 2020 NY Slip Op 06559, Second Dept 11-12-20

 

INCLUSORY CONCURRENT COUNTS DISMISSED; POSSESSION OF A WEAPON SENTENCE SHOULD BE CONCURRENT WITH THE ATTEMPTED MURDER AND ASSAULT SENTENCES (SECOND DEPT).

The Second Department determined three inclusory concurrent counts must be dismissed and the possession of a weapon sentence should run concurrently with the attempted murder and assault sentences:

… [T]he defendant’s convictions of assault in the second degree under Penal Law § 120.05(1) and (2) must be dismissed as lesser included concurrent counts of assault in the first degree under Penal Law § 120.10(1) (see CPL 300.40[3][b] …). Additionally, the conviction of burglary in the second degree under Penal Law § 140.25(2) must be dismissed as a lesser included concurrent count of burglary in the first degree under Penal Law § 140.30(4) … , and the conviction of criminal possession of a firearm under Penal Law § 265.01-b(1) must be dismissed as a lesser included concurrent count of criminal possession of a weapon in the second degree under Penal Law § 265.03(1)(b) … .

We agree with the defendant that the resentence imposed on the conviction of criminal possession of a weapon in the second degree under count 8 of the indictment must run concurrently with the resentences imposed on the convictions of attempted murder in the second degree and assault in the first degree, which related to the same complainant … . The People’s theory under count 8 of the indictment pertained specifically to that complainant, and the jury was charged accordingly … . People v Mahon, 2020 NY Slip Op 06550, Second Dept 11-12-20

 

THE COURT WAS NOT AUTHORIZED TO SENTENCE DEFENDANT AS A SECOND VIOLENT FELONY OFFENDER BECAUSE DEFENDANT WAS CONVICTED OF AN A FELONY; THE LENGTH OF DEFENDANT’S SENTENCE, HOWEVER, IS NOT AFFECTED (SECOND DEPT).

The Second Department noted the court was not authorized to sentence defendant as a second violent felony offender because he was convicted of an A felony:

… [T]he Supreme Court was not authorized to adjudicate the defendant a second violent felony offender, as the instant conviction was for a class A felony rather than a class B, C, D, or E felony (see Penal Law §§ 70.02[1]; 70.04[1][a]). Therefore, we vacate the defendant’s adjudication as a second violent felony offender. “However, since the statutory sentencing parameters for a second violent felony offender do not include any specifications as to proper sentences for a class A felony because that crime is more serious than the crimes specified in those parameters, the error could not have affected the sentence imposed to the defendant’s detriment” … . Furthermore, contrary to the defendant’s contention, the sentencing limitations provided in Penal Law § 70.30(1)(e) do not apply where the two or more crimes include, as here, a class A felony (see Penal Law § 70.30[1][e][i] …). People v Bell, 2020 NY Slip Op 06540, Second Dept 11-12-20

 

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RISK ASSESSMENT REDUCED FROM TWO TO ONE; DEFENDANT WAS CONVICTED OF STATUTORY RAPE WHEN HE WAS 22; THE VICTIMS, WHO WERE 15 AND 16, INITIATED THE CONSENSUAL ENCOUNTER (SECOND DEPT).

The Second Department, reducing defendant’s risk assessment to level one, determined the Louisiana statutory rape conviction did not warrant a 25 point assessment. The defendant was 22 at the time and the victims, who initiated the consensual encounter, were 15 and 16:

“In cases of statutory rape, the Board has long recognized that strict application of the Guidelines may in some instances result in overassessment of the offender’s risk to public safety. The Guidelines provide that ‘[t]he Board or a court may choose to depart downward in an appropriate case and in those instances where (i) the victim’s lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points in this category [risk factor 2, for sexual contact with the victim] results in an over-assessment of the offender’s risk to public safety'” … .

Considering all of the circumstances present here, including that this offense is the only sex-related crime in the defendant’s history, the defendant accepted responsibility for his crimes and was sentenced minimally in Louisiana, the assessment of 25 points under risk factor 2 results in an overassessment of the defendant’s risk to public safety … . People v Brocato, 2020 NY Slip Op 06295, Second Dept 11-4-20

 

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THE IMPOUNDMENT AND SEARCH OF DEFENDANT’S CAR, WHICH WAS LEGALLY PARKED AT THE TIME OF DEFENDANT’S ARREST, WERE ILLEGAL; THE SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the impoundment of defendant’s car, which was legally parked car at the time of defendant’s arrest, was illegal. The subsequent search of the car was not a valid inventory search. The seized evidence should have been suppressed:

… [T]he Supreme Court should have granted that branch of the defendant’s omnibus motion which was to suppress the physical evidence recovered from his vehicle. The People failed to establish the lawfulness of the impoundment of the defendant’s vehicle and subsequent inventory search … . At the suppression hearing, the arresting officer testified that the defendant’s vehicle was legally parked at the time of the defendant’s arrest, and there was no testimony regarding posted time limits pertaining to the parking space. Further, although the officer testified that he impounded the defendant’s vehicle for “safekeeping,” the People presented no evidence demonstrating any history of burglary or vandalism in the area where the defendant had parked his vehicle. 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, while the arresting officer testified that “[t]here is [an] NYPD procedure when someone is arrested and you have to take the car into safekeeping,” the People failed to present evidence of what such a procedure required or whether the arresting officer complied with such a procedure when he impounded the defendant’s vehicle … . People v King, 2020 NY Slip Op 06288, Second Dept 11-4-20

 

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THE FEDERAL OFFENSE DID NOT REQUIRE THAT THE FIREARM BE OPERABLE BUT THE NEW YORK OFFENSE DOES; THEREFORE THE FEDERAL OFFENSE IS NOT A PREDICATE OFFENSE FOR SENTENCING PURPOSES; THE DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER; ALTHOUGH THE ISSUE WAS NOT PRESERVED, IT WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the federal felony was not equivalent to a New York felony and therefore could not serve as a predicate offense. Defendant, therefore, should not have been sentenced as a second felony offender. Although the issue was not preserved, it was considered on appeal in the interest of justice:

The defendant’s contention that his prior federal conviction of unlawful possession of a firearm in violation of 18 USC § 922(g)(l) did not qualify as a predicate New York felony pursuant to Penal Law § 70.06 is unpreserved for appellate review … . However, we reach the issue in the exercise of our interest of justice jurisdiction … .

“An out-of-state felony conviction qualifies as a predicate felony under Penal Law § 70.06 only if it is for a crime whose elements are equivalent to those of a felony in New York” … . Here, the defendant’s predicate crime does not require as one of its elements that the firearm be operable (see 18 USC § 922[g][1] …) and, thus, does not constitute a felony in New York for the purpose of enhanced sentencing … . People v Cabassa, 2020 NY Slip Op 06282, Second Dept 11-4-20

 

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PETITIONERS, INMATES AT A CORRECTIONAL FACILITY, RAISED ALLEGATIONS COGNIZABLE IN HABEAS CORPUS REGARDING THE FACILITY’S RESPONSE TO COVID-19; SUPREME COURT SHOULD NOT HAVE REFUSED TO ISSUE AN ORDER TO SHOW CAUSE WHY THE PETITIONERS SHOULD NOT BE RELEASED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petitioners, inmates at Otis Correctional Facility, had made allegations with respect to the facility’s response to COVID-19 which were cognizable in habeas corpus. Therefore Supreme Court should not have refused to issue an order to show cause why the inmates should not be released:

… [T]he petition alleged that the inmates were being unlawfully imprisoned in violation of the Eighth Amendment of the United States Constitution because, in light of certain physical conditions and attributes specific to them as well as unalterable conditions of incarceration at Otisville, there were no measures that could be taken to protect them from the grave risk of death or serious illness posed by the COVID-19 virus while they were incarcerated in that facility. Thus, the petitioner alleged, the only remedy to cure the illegality of the inmates’ detention would be their immediate release. Contrary to the respondents’ contention and the conclusion of the Supreme Court, these allegations are properly cognizable in habeas corpus … . Accordingly, the court should not have refused to issue an order to show cause why the inmates should not be released (see CPLR 7003[a]). People ex rel. Tse v Barometre, 2020 NY Slip Op 06280, Second Dept 11-4-20

 

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THE BUILDING MANAGING AGENT, WHO HIRED PEREZ, THE BUILDING SUPERINTENDENT, WAS NOT OBLIGATED TO DETERMINE WHETHER PEREZ, A REGISTERED SEX OFFENDER, HAD A CRIMINAL RECORD; THE BUILDING OWNER AND MANAGING AGENT, THEREFORE, WERE NOT LIABLE UNDER A NEGLIGENT HIRING AND RETENTION THEORY OR A RESPONDEAT SUPERIOR THEORY FOR PEREZ’S SEXUAL ASSAULT ON INFANT PLAINTIFF (FIRST DEPT).

The First Department, reversing Supreme Court, determined the building owner, Carpenter, and managing agent, Lemle, could not be held liable for the sexual assault on infant plaintiff by Perez, the building superintendent. The managing agent, who hired Perez, was not under an obligation to determine whether Perez, a registered sex offender, had a criminal record:

Carpenter hired managing agents, who employed Perez. Lemle was the managing agent on the relevant date. However, no issue of fact exists as to whether Lemle can be held liable for Perez’s negligent hiring or retention because the record is devoid of evidence that Lemle had knowledge of Perez’s propensity to commit a violent act … . The fact that Perez was a registered sex offender does not avail plaintiffs, as, in the absence of knowledge of any facts that would cause a reasonable person to question a person’s background, an employer is under no duty to inquire whether an employee has been convicted of a crime … . The imposition of such a duty is a matter for the Legislature. There is no evidence that, prior to the incident in question, Perez ever did anything that should have indicated to his employer that he had a propensity to commit sexual abuse or any other crimes. Further, that Perez falsified identification records that he submitted for payroll purposes is of no moment, since the paperwork on its face would not have caused a reasonable person to question its veracity. Nor can Lemle be held vicariously liable for Perez’s conduct because the conduct was not in furtherance of Lemle’s business and was outside the scope of Perez’s employment … . Samoya W. v 3940 Carpenter Ave., LLC, 2020 NY Slip Op 06218, First Dept 10-29-20

 

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THE MOTION TO VACATE DEFENDANT’S CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT HOLDING A HEARING; THE RECORD WAS NOT SUFFICIENT FOR DIRECT APPEAL AND THE MOTION PAPERS RAISED QUESTIONS REQUIRING A HEARING (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should not have been denied without holding a hearing. The record was not sufficient for a direct appeal on the issue, and the motion raised ineffective assistance questions requiring a hearing:

Defendant’s motion, alleging ineffective assistance of counsel in various respects, should not have been denied on the ground that the trial record is sufficient to permit appellate review (CPL 440.10[2][b]). The trial record does not establish whether counsel’s alleged deficiencies in handling suppression and trial issues were based on legitimate trial strategy. Moreover, the motion was supported by motion counsel’s affirmation detailing his conversation with trial counsel, which raised serious questions about counsel’s performance as to several matters. Furthermore, the court improvidently exercised its discretion to the extent that it denied the motion, without granting a hearing, based on CPL 440.30(4)(d) … . As noted, motion counsel’s affirmation recounted a conversation with trial counsel that tended to support some of the ineffectiveness claims. Motion counsel also averred that trial counsel ultimately refused to submit an affirmation in support of the motion. Under the circumstances, the motion court should have granted a hearing to enable trial counsel to be subpoenaed to testify or otherwise present evidence explaining whether there were strategic or other reasons for his decisions … . People v McCray, 2020 NY Slip Op 06219, First Dept 10-29-20

 

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TEN POINTS SHOULD NOT HAVE BEEN ASSESSED FOR AN OLD MINOR OFFENSE IN PRISON, DEFENDANT’S RISK ASSESSMENT REDUCED TO LEVEL ONE (SECOND DEPT).

The Second Department, reducing defendant’s risk level to level one, determined the 10 point assessment for unsatisfactory conduct in prison was not justified:

However, the 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 06159, Second Dept 10-28-20

 

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