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THE SENTENCING COURT INDICATED IT COULD NOT DEVIATE FROM ITS SENTENCING AGREEMENT WITH THE PEOPLE BUT SENTENCING COURTS HAVE DISCRETION; SENTENCE VACATED AND MATTER REMITTED FOR RE-SENTENCING (FOURTH DEPT).

The Fourth Department, vacating defendant’s sentence and remitting the matter, determined the sentencing court erroneously indicated it had no discretion to deviate from the sentencing agreement with the People:

“[T]he sentencing decision is a matter committed to the exercise of the court’s discretion and . . . can be made only after careful consideration of all facts available at the time of sentencing” … . “The determination of an appropriate sentence requires the exercise of discretion after due consideration given to, among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence” … . Here, the court indicated that it had no choice but to sentence defendant pursuant to its agreement with the People … , and the sentencing transcript, read in its entirety, does not reflect that the court conducted the requisite discretionary analysis … . We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing. People v Knorr, 2020 NY Slip Op 04690, Fourth Dept 8-20-20

 

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ALTHOUGH THE PEOPLE SHOULD HAVE DISCOVERED THE PROBLEM WITH CERTAIN EVIDENCE SOONER, FOR SPEEDY TRIAL PURPOSES THE PEOPLE CAN BE CHARGED ONLY WITH THE TIME NECESSARY TO INVESTIGATE THE NEWLY DISCOVERED EVIDENTIARY ISSUE; THE NEED FOR MORE INVESTIGATION DID NOT INVALIDATE THE PEOPLE’S STATEMENT OF READINESS WHICH WAS WITHDRAWN; THEREFORE THE INDICTMENT SHOULD NOT HAVE BEEN DISMISSED ON SPEEDY TRIAL GROUNDS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the indictment should not have been dismissed on speedy trial grounds. The People withdrew their statement of readiness stating that there was newly discovered evidence. Supreme Court found that the evidence was available early on and should have been discovered had the People been diligent.

The record shows that the People were not aware until April 30, 2019 that mistakes by police detectives had incorrectly led them to conclude that they could not locate the user of the Instagram account that had been used to send the photographs of defendant engaging in sexual acts with the victim to defendant’s ex-girlfriend. While we agree with the court that the People’s late realization was entirely due to the People’s failure to properly inspect the evidence within their possession, the time chargeable to the People is only the delay that is directly attributable to their inaction, and that which directly implicated their ability to proceed to trial … . Thus, the delay that is chargeable to the People due to their inaction with respect to the photographs is any additional time that they required to investigate the matter, which they could have previously investigated. Moreover, the People’s need to further investigate the photographs did not render their prior statement of readiness illusory because the record shows that, at the time they announced their readiness, the People would have been able to establish a prima facie case and proceed at trial … . People v Pratt, 2020 NY Slip Op 04662, fourth Dept 8-20-20

 

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THE EVIDENCE OF PHYSICAL INJURY WAS LEGALLY INSUFFICIENT, ASSAULT THIRD CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s assault third conviction, determined the evidence of “physical injury” was legally insufficient:

Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). Although the question of whether physical injury has been established is generally for the jury to decide, “there is an objective level . . . below which the question is one of law” … . Here, the complainant testified that the defendant pushed him to the ground, and slapped him several times in the face. The complainant testified that he cried because he “was in a lot of pain.” There was no evidence, however, corroborating the complainant’s subjective description of the degree of pain he experienced … . There was no testimony about the duration of the pain, whether the shove or slaps left any visible bruising, swelling, or redness, or whether the defendant sought medical treatment or missed any time from work or school … . Under these circumstances, there was legally insufficient evidence from which a jury could infer that the complainant suffered substantial pain as a result of being pushed to the ground and slapped several times in the face … . People v Jhagroo, 2020 NY Slip Op 04580, Second Dept 8-19-20

 

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RULING THAT DEFENDANT COULD BE CROSS-EXAMINED ABOUT THREE PRIOR GUN-RELATED CONVICTIONS IF HE TESTIFIED THE SHOOTING WAS AN ACCIDENT DID NOT DEPRIVE DEFENDANT OF THE RIGHT TO PUT ON A DEFENSE; TWO DISSENTERS DISAGREED (SECOND DEPT).

The Second Department, affirming defendant’s murder conviction, over a two-justice dissent, determined Molineux the ruling that defendant could be cross-examined about his three prior gun-related convictions if he were to testify the shooting was an accident did not deprive defendant of the right to put on a defense. The dissenter argued that it did:

Prior to trial, the Supreme Court ruled that if the defendant were to testify that the shooting was an accident, the People would be permitted to offer evidence, through their cross-examination of him, of the facts underlying his three prior gun-related convictions … . The defendant contends that this ruling deprived him of his due process right to a fair trial as it deterred him from testifying at trial. Contrary to the defendant’s contention, and the position of our dissenting colleagues, the court’s Molineux ruling did not deprive the defendant of his right to a fair trial … . Moreover, any error in the ruling was harmless, as there was overwhelming evidence of the defendant’s guilt and no reasonable possibility that any error might have contributed to the defendant’s conviction … . * * *

From the dissent:

… [T]he fact that the defendant committed gun-related offenses against persons other than the victim nearly 20 years before the subject shooting bears no relevance whatsoever to the issue of whether the subject shooting was an accident. In my view, permitting the People to elicit the underlying facts of prior gun-related acts that were totally unrelated to the victim would serve only to demonstrate that the defendant had a propensity for gun violence … . Consequently, the Supreme Court’s pretrial ruling in this case cannot be justified under Molineux and, thus, the ruling effectively precluded the defendant from presenting a defense. People v Huertas, 2020 NY Slip Op 04577, Second Dept 8-19-20

 

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THE STRIP SEARCH OF DEFENDANT WAS JUSTIFIED AND CONDUCTED PROPERLY (THIRD DEPT).

The Third Department determined the strip search of defendant, which resulted in the seizure of cocaine, was proper:

“[I]t is clear that a strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner” … . The trooper testified at the suppression hearing that the search of the vehicle led to the discovery of 1.1 grams of marihuana in the center console. A K-9 search of the vehicle revealed “hits” at both the center console and the driver’s seat. According to the trooper, during the transport of defendant to the State Police barracks, the smell of marihuana was “overwhelming.” At the barracks, defendant was handcuffed to a bench and the trooper continued to smell marihuana. Each time the trooper asked defendant if he had marihuana on him, he denied it. After defendant was advised that he was to be strip-searched, he was taken to a private interview room and the search was conducted by two male officers. Defendant was asked to remove one article of clothing at a time; when he was down to his underwear, defendant handed over the marihuana, and the cocaine was revealed shortly thereafter. Given this evidence, a reasonable suspicion existed that defendant was concealing evidence and we find that the search was conducted in a reasonable manner … . People v Hightower, 2020 NY Slip Op 04513, Third Dept 8-13-20

 

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THE MAJORITY DID NOT CONSIDER THE ARGUMENT DEFENDANT WAS NOT ADEQUATELY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY BECAUSE THE ISSUE WAS NOT PRESERVED; THE TWO-JUSTICE DISSENT ARGUED THE APPEAL SHOULD BE CONSIDERED IN THE INTEREST OF JUSTICE AND THE CONVICTION REVERSED (THIRD DEPT). ​

The Third Department, over a two-justice dissent, determined defendant’s assertion that he was not adequately informed of the rights he was giving up by pleading guilty was not preserved for appeal. The dissent argued the court should consider the appeal under its interest of justice jurisdiction and reverse the conviction:

Defendant also asserts that his guilty plea was not knowing, voluntary and intelligent because County Court did not fully advise him of the rights that he was giving up by pleading guilty. This claim was not preserved for our review as the record does not disclose that defendant made an appropriate postallocution motion … , and we decline to exercise our interest of justice jurisdiction to take corrective action.

From the dissent:

… County Court engaged in a limited and brief exchange with defendant in which it explained that, by pleading guilty, defendant was giving up the “right to remain silent and not to incriminate yourself,” the “right to a jury trial” and “any other rights you have on a trial.” County Court failed to advise defendant of his right to be confronted by witnesses. Additionally, and significantly, when asked if he had discussed the plea and its consequences with counsel, defendant merely stated, “She told me about violating, would be like 90 days. I understand.” The record does not establish that defendant understood and affirmatively waived the trial-related rights that he was automatically forfeiting by pleading guilty and, thus, defendant’s plea is invalid … . People v Cruz, 2020 NY Slip Op 04514, Third Dept 8-13-20

 

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THE FAILURE TO MENTION THE JUSTIFICATION DEFENSE ON THE VERDICT SHEET WAS NOT PRESERVED FOR APPEAL BY AN OBJECTION AND THE INTEREST OF JUSTICE APPELLATE JURISDICTION WILL NOT BE INVOKED WHERE THERE WAS AMPLE OPPORTUNITY TO OBJECT (FIRST DEPT).

The First Department determined defendant did not preserve the issue concerning the adequacy of the verdict sheet which did not mention the justification defense. Defendant was acquitted of the top counts (attempted murder and assault first) and convicted of assault second. The jury was instructed not to consider the lesser counts if the justification defense applied. But the verdict sheet was silent on the justification defense. The First Department refused to exercise its interest of justice jurisdiction because there was ample opportunity to interpose an objection to the jury instructions and verdict sheet:

… [D]efendant contends that his conviction on the lesser count of second-degree assault must be vacated since the verdict sheet made no mention of justification. Verdict sheets in criminal cases, however, may not include substantive instructions absent authorization by CPL 310.20(2) … . Here, defense counsel made no objections when the verdict sheet was reviewed and discussed by the court with the parties.

In prior cases, we reversed convictions in the interest of justice where defendants interposed no objections to jury instructions that failed to comply with Velez [131 AD3d 129], even though the claim was unpreserved … .

In People v Davis (176 AD3d 634 [2019], lv denied 34 NY3d 1157 [2020]), we changed course. The jury in that case similarly found defendant not guilty of the top count, but guilty of the lesser count. Although defendant interposed no objections to the verdict sheet or the jury instructions that were given, defendant appealed on the basis that both the initial and supplemental charges and the verdict sheet did not comply with Velez. We “decline[d] to exercise our interest of justice jurisdiction to review these unpreserved claims” … .

Davis is applicable here. The defendant, although afforded multiple opportunities during the two-and-a-half to three-day charge conference, during trial and prior to deliberations, interposed no objections, and thus, failed to preserve his claims. People v Macon, 2020 NY Slip Op 04519, First Dept 8-13-20

 

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THE RECORD WAS NOT SUFFICIENT FOR CONSIDERATION OF THE INEFFECTIVE ASSISTANCE ARGUMENT RE WHETHER DEFENDANT WAS ADEQUATELY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA; THE PRECISE NATURE OF COUNSEL’S ADVICE WAS NOT IN THE RECORD; TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, over a two-justice dissent, determined the record was insufficient to preserve the ineffective assistance of counsel argument. The defendant argued that he was insufficiently informed about the deportation-risk associated with his guilty plea. The majority held that the record did not reflect the precise advice given by counsel and therefore the appropriate mechanism for review is a CPL 440.10 motion. The dissenters argued the record was sufficient to send the matter back for a motion to vacate the plea:

We do not agree with defendant’s attempt to exempt himself from the necessity of making a CPL 440.10 motion based on his counsel’s statements at the plea hearing concerning the off-the-record advice concerning immigration that had been rendered. To reiterate, counsel’s statements to the court, on their face, are general in nature and do not purport to describe the contents of the immigration advice that defendant actually received. The statement that defendant had been advised of “all possible consequences” was consistent both with accurate advice that the plea would subject him to mandatory deportation and with inaccurate advice that failed to warn him of that consequence. We cannot, on this record, tell whether the advice actually given was accurate or inaccurate. Certainly, it cannot be said that counsel’s statement establishes “irrefutably” … that the advice given was inaccurate, as is required to render a CPL 440.10 motion unnecessary. People v Gomez, 2020 NY Slip Op 04518, First Dept 8-13-20

 

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ALTHOUGH PETITIONER DEMONSTRATED THE INMATE LACKED THE CAPACITY TO MAKE A REASONED DECISION ABOUT THE PROPOSED TREATMENT FOR SCHIZOPHRENIA, PETITIONER DID NOT DEMONSTRATE THE PROPOSED TREATMENT WAS NARROWLY TAILORED TO THE INMATE’S NEEDS (SECOND DEPT).

The Second Department, remitting the matter, determined that, although it was demonstrated the inmate lTyrone) lacked the capacity to make a reasoned decision about his treatment for schizophrenia, the petitioner did not demonstrate the proposed treatment was narrowly tailored to the inmate’s needs:

When seeking to administer a course of medication to a patient without that patient’s consent, a petitioner bear  the burden of demonstrating, by clear and convincing evidence, (1) the patient’s incapacity to make treatment decisions … , and (2) that “the proposed treatment is narrowly tailored to give substantive effect to the patient’s liberty interest, taking into consideration all relevant circumstances, including the patient’s best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatments” … . “Whether a mentally ill patient has the capacity to make a reasoned decision with respect to treatment is a question of fact for the hearing court, the credibility findings of which are entitled to due deference” … . … [T]e petitioner demonstrated by clear and convincing evidence that Tyrone lacks the capacity to make a reasoned decision with respect to the proposed treatment. …

However, the petitioner failed to demonstrate by clear and convincing evidence that the proposed treatment is narrowly tailored to preserve Tyrone’s liberty interest. Matter of Tyrone M., 2020 NY Slip Op 04478, Second Dept 8-12-20

 

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DEFENDANT’S REQUEST FOR THE MISSING WITNESS JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant’s request for a missing witness jury instruction should have been granted. Defendant was charged with contempt stemming from the violation of a protective order. It was alleged defendant pushed his former girlfriend to the ground in the presence of her date. Her date was subpoenaed by the People and was ready to testify but was not called by the People:

The proponent of a missing witness charge “initially must demonstrate only three things via a prompt request for the charge: (1) that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case,’ (2) that such witness can be expected to testify favorably to the opposing party,’ and (3) that such party has failed to call’ the witness to testify” … . “The party opposing the charge, in order to defeat the proponent’s initial showing, must either account for the witness’s absence or demonstrate that the charge would not be appropriate” … . “This burden can be met by demonstrating that the witness is not knowledgeable about the issue, that the issue is not material or relevant, that although the issue is material or relevant, the testimony would be cumulative to other evidence, that the witness is not available’, or that the witness is not under the party’s control’ such that he [or she] would not be expected to testify in his or her favor” … . If the party opposing the charge meets its burden to rebut the proponent’s prima facie showing, “the proponent retains the ultimate burden to show that the charge would be appropriate” … .

Here, the defendant met his prima facie burden to show that the complainant’s date was believed to be knowledgeable about a material issue pending in the case and was expected to testify favorably to the People, who had failed to call him to testify. According to the complainant, her date was present during the incident … and was a victim during that incident. The People failed to rebut this prima facie showing … . Contrary to the People’s contention, they failed to establish that the complainant’s date was unavailable as a witness. He appeared in court pursuant to the People’s so-ordered subpoena, and his counsel stated that although he did not wish to be a witness, he was outside the courtroom and was prepared to testify. Further, the People did not establish that the complainant’s date was not under the People’s “control,” such that he would not be expected to testify in their favor, given that he allegedly was on a date with the complainant when the defendant lunged at them, threatened them, and pushed the complainant to the ground. Moreover, the People did not demonstrate that the testimony would have been cumulative. People v Sanchez2020 NY Slip Op 04494, Second Dept 8-12-20

 

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