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ONCE SUPREME COURT FOUND DEFENDANT’S COUNSEL INEFFECTIVE IT WAS REQUIRED TO VACATE THE CONVICTION; DEFENDANT MOVED TO VACATE HIS CONVICTION BECAUSE HE REJECTED A PLEA OFFER WITHOUT BEING INFORMED HE COULD BE SUBJECT TO LIFE IN PRISON AS A PERSISTENT FELONY OFFENDER AFTER TRIAL; SUPREME COURT SHOULD NOT HAVE REINSTATED THE ORIGINAL SENTENCE AFTER FINDING DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined, once the motion court found defendant’s counsel ineffective for failing to inform defendant he risked being sentenced to life in prison as a persistent felony offender after trial, the motion court could not leave the convictions in place and reinstate the original sentence. Defendant had been offered a plea offer with a sentence of 4 1/2 to 9 years which he rejected and moved to vacate the guilty plea pursuant to CPL 440.10:

CPL 440.10(4) provides that “[i]f the court grants [a defendant’s motion pursuant to CPL 440], it must, except as provided in subdivision five or six of this section, vacate the judgment, and must dismiss the accusatory instrument, or order a new trial, or take such other action as is appropriate in the circumstances” (emphasis added). Contrary to the Supreme Court’s determination, the plain language of CPL 440.10(4) requires that, upon a finding that a defendant’s CPL 440 motion is meritorious, a court must, in the first instance (absent the exceptions in subdivisions five or six of CPL 440.10 which are not relevant here), vacate the judgment … , and upon so doing, must then select one of three options: (1) “dismiss the accusatory instrument,” (2) “order a new trial,” or (3) “take such other action as is appropriate in the circumstances” (CPL 440.10[4]). Since the court found that the defendant received ineffective assistance of counsel, it should have granted the defendant’s CPL 440.10 motion by vacating the judgment of conviction … . People v Brown, 2020 NY Slip Op 04849, Second Dept 9-2-20

 

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AN INDICATION THE DEFENDANT’S VEHICLE HAD BEEN IMPOUNDED, REVEALED WHEN THE TROOPER RAN THE PLATES, DID NOT SUPPORT THE TRAFFIC STOP; THE WEAPON AND DRUGS FOUND IN THE VEHICLE SHOULD HAVE BEEN SUPPRESSED; APPELLATE DIVISION REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a concurring opinion and an extensive dissenting opinion, reversing the Appellate Division, determined the state trooper did not have probable cause or reasonable suspicion to support the traffic stop. The weapon and drugs found in a search of defendant’s (Mr. Hinshaw’s) car should have been suppressed. The stop was based entirely on an indication the car had been impounded revealed when the officer ran the plates. The notice explicitly stated it “should not be treated as a stolen vehicle hit:”

The trooper here did not observe any violations of the Vehicle and Traffic Law and “everything looked good.” Putting aside the result of the license plate inquiry, “[t]he trooper candidly testified that he had had no reason to stop defendant” … . …

The result of the license plate check provided neither probable cause to conclude a traffic infraction had occurred nor any basis for an objectively reasonable belief that criminal behavior had occurred or was afoot. Although the People and our dissenting colleague argue that the trooper understood the “generic” impound notification to require further investigation as to its cause, the trooper’s speculation that the car could have been impounded for “registration . . . problems,” the “plates could have been suspended,” “insurance could have been suspended,” or the vehicle could have been stolen was just that — pure speculation … . * * *

Because “there was not even a suggestion that the conduct of the defendant or his companions had been furtive in character before the police interfered with their car’s progress,” and “the record here is bare of any objective evidence of criminal activity as of the time of the stop” … , the stop of Mr. Hinshaw’s vehicle was invalid. People v Hinshaw, 2020 NY Slip Op 04816, CtApp 9-1-20

 

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DEFENDANT’S PHYSICAL CONDITION AFTER A STROKE WARRANTED A DOWNWARD MODIFICATION OF HIS SORA RISK LEVEL FROM THREE TO TWO (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s application for a downward modification of his SORA risk level should have been granted:

… [T]he defendant established, by a preponderance of the evidence … , facts warranting a downward modification of his existing risk level classification to risk level two … . The medical evidence adduced at the hearing demonstrated that the defendant, who uses a wheelchair, suffered from a stroke in 2009, resulting in permanent paralysis on the right side of his body. A treating physician testified, inter alia, that there is no possibility of improvement of the paralysis condition. He also testified that although the defendant is able to transfer himself from a bed to a wheelchair, he requires assistance in propelling the wheelchair and in transferring himself to a shower stall. In addition, he is unable to stand for any length of time. Furthermore, the record indicates that the defendant had no disciplinary infractions in prison, spanning a lengthy period of time preceding the hearing. People v Sanchez, 2020 NY Slip Op 04796, Second Dept 8-26-20

 

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TRIAL COURT MAY NOT SET ASIDE THE VERDICT PURSUANT TO CPL 330.30 ON A GROUND WHICH DOES NOT REQUIRE REVERSAL AS A MATTER OF LAW–HERE THE ALLEGED FACTUAL INCONSISTENCY BETWEEN THE CONVICTION OF ENDANGERING THE WELFARE OF A CHILD AND THE ACQUITTALS ON ALL THE OTHER SEXUAL-OFFENSE COUNTS (SECOND DEPT).

The Second Department, reversing County Court on the People’s appeal, in a full-fledged opinion by Justice Chambers, determined the verdict should not have been set aside based upon an alleged inconsistency between the conviction on one count and the acquittals on all other counts:

This appeal by the People and cross appeal by the defendant presents a rare opportunity to consider the circumstances under which a trial court, in reviewing the record on a motion pursuant to CPL 330.30(1) to determine whether a conviction on one count is supported by legally sufficient evidence, may consider a jury’s factually inconsistent acquittal on another count.

The defendant was charged with two counts of rape in the third degree (Penal Law § 130.25[2]), three counts of criminal sexual act in the third degree (Penal Law § 130.40[2]), and two counts of endangering the welfare of a child (Penal Law § 260.10[1]). * * *

The jury returned a verdict of guilty on count six [endangering the welfare of a child] and acquitted the defendant of all other charges. * * *

… [T]he defendant contends that a factual inconsistency in the verdict may … , under appropriate circumstances, provide grounds for a reviewing court to “consider a jury’s acquittal on one count in reviewing the record to determine if a factually inconsistent conviction on another count is supported by legally sufficient evidence” … .  …  [T]here is some support in the case law for the defendant’s contention—at least within the context of a direct appeal from the judgment of conviction, where this Court has both a unique power of factual review … as well as the discretionary authority, in the interest of justice, to reach unpreserved errors that deprived the defendant of a fair trial … . However, we now explicitly hold that a trial court determining a motion pursuant to CPL 330.30 lacks the power to overturn a verdict on this ground where, as here, the contention does not present an issue that “would require a reversal or modification of the judgment as a matter of law by an appellate court” (CPL 330.30[1] …). People v Taylor, 2020 NY Slip Op 04790, Second Dept 8-26-20

 

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PROOF AT DARDEN HEARING DID NOT DEMONSTRATE THAT THE PURPORTED CONFIDENTIAL INFORMANT EXISTED AND PROVIDED SUFFICIENT INFORMATION TO SUPPORT THE ISSUANCE OF A SEARCH WARRANT (SECOND DEPT).

The Second Department, reversing Supreme Court, over a two-justice dissent, determined the Darden hearing did not support the finding that the purported confidential informant existed and provided sufficient information for the issuance of the search warrant:

The Darden rule is necessary to insure “that the confidential informant both exists and gave the police information sufficient to establish probable cause, while protecting the informant’s identity” … . The rule, which “gives clear guidance to lower courts and guarantees that the protections of the Fourth Amendment have not been circumvented” … , “is necessary to properly test the officer’s credibility” … , and is “designed to protect against the contingency, of legitimate concern to a defendant, that the informer might have been wholly imaginary and the communication from him [or her] entirely fabricated” … . …

Here, the Supreme Court’s credibility determinations are not supported by the record. As will be shown, there were substantial material discrepancies between the detective’s affidavit in support of the search warrant, and the testimonies of the alleged CI and the detective at the Darden hearing pertaining to (1) the CI’s track record of reliability, (2) the prior relationship between the detective and the CI, and (3) the facts and circumstances of the alleged controlled buy or buys at the subject apartment. Consequently, we find that the People failed to meet their burden at the Darden hearing. People v Nettles, 2020 NY Slip Op 04776, Second Dept 8-26-20

 

CONVICTION OF A LESSER INCLUDED COUNT OF PREDATORY SEXUAL ASSAULT (I.E. COURSE OF SEXUAL CONDUCT AGAINST A CHILD) VACATED (SECOND DEPT),

The Second Department vacated defendant’s conviction of a lesser included count:

… [T]he defendant’s conviction of predatory sexual assault against a child under Penal Law § 130.96 requires dismissal of the lesser included count of course of sexual conduct against a child in the first degree under Penal Law § 130.75(1)(a) … . People v Mendez-Huales, 2020 NY Slip Op 04774, Second Dept 8-26-20

 

CONCURRENT INCLUSORY COUNT MUST BE DISMISSED DESPITE FAILURE TO REQUEST THAT IT BE PRESENTED TO THE JURY IN THE ALTERNATIVE IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT).

The Second Department determined the inclusory concurrent count must be dismissed despite the failure to request that it be presented to the jury in the alternative:

… [U]nder the facts of this case, the defendant could not have committed the crime of criminal contempt in the first degree as charged in count 10 of the indictment (Penal Law § 215.51[b][i]) without also having committed the crime of criminal contempt in the second degree as charged in count 11 of the indictment (Penal Law § 215.50[3]). As these counts were “inclusory concurrent counts” as defined by CPL 300.30(4), a verdict of guilty upon the greater is deemed a dismissal of every lesser (see CPL 300.40[3][b]). Thus, although the defendant did not request that the subject counts be charged in the alternative, the conviction of the lesser count must be dismissed … . People v Bentley, 2020 NY Slip Op 04753, Second Dept 8-26-20

 

PEOPLE’S REQUEST TO WITHHOLD DISCOVERY UNTIL FIFTEEN DAYS BEFORE A HEARING OR TRIAL, FOR THE WITNESSES’ SAFETY, SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a memorandum which did not discuss the facts, determined the People’s request to withhold discovery until 15 days before a hearing or trial, for the witnesses’ safety, should have been granted:

Pursuant to CPL 245.70(6), a party who has unsuccessfully sought, or opposed the granting of, a protective order relating to the name, address, contact information, or statements of a person may obtain expedited review by an individual justice of the intermediate appellate court to which an appeal from a judgment of conviction would be taken. Where, as here, “the issue involves balancing the defendant’s interest in obtaining information for defense purposes against concerns for witness safety and protection, the question is appropriately framed as whether the determination made by the trial court was a provident exercise of discretion” … .

Applying these standards to the matters at hand, I conclude that the Supreme Court’s determination to grant the People’s request only to the extent indicated was an improvident exercise of discretion. Under the particular facts and circumstances presented, concerns for witness safety and protection far outweigh the usefulness of the discovery of the material or information in question. People v Morales-Aguilar, 2020 NY Slip Op 04721, Second Dept 8-24-20

 

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THE PRIOR BAD ACT EVIDENCE EXCEEDED THAT ALLOWED BY THE MOLINEUX RULING, DEFENDANT’S MURDER CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department determined defendant’s murder conviction must be reversed in the interest of justice because the evidence of prior bad acts exceeded that allowed by the court’s Molineux ruling:

Defendant also challenges certain testimony by the victim’s niece as being beyond the scope of County Court’s Molineux ruling. As part of its Molineux application, the People requested that they be allowed to offer proof about instances of verbal and emotional abuse by defendant toward the victim. The court granted the application and permitted the People to elicit such evidence. At trial, however, the niece testified that the victim told her that defendant once grabbed her arm in a store because he did not like who she was talking to and that bruises on her legs were caused by defendant. The niece further testified that she observed defendant kick the victim in the stomach. That said, incidents of physical abuse by defendant were not part of the People’s Molineux application. As such, the niece’s testimony, some of which was hearsay, exceeded the scope of the court’s Molineux ruling and deprived defendant of a fair trial … .

Because the evidence of defendant’s guilt was not overwhelming, there must be a new trial … . We note that defendant did not object to the niece’s testimony and, consequently, failed to preserve this argument . Despite this infirmity, we deem it appropriate under the particular circumstance… s of this case to exercise our interest of justice jurisdiction and reverse the judgment (see CPL 470.15 [6] [a]). People v Callahan, 2020 NY Slip Op 04618, Third Dept 8-20-20

 

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THE SIX ‘LURING A CHILD’ CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing the “luring a child” convictions, over a two-justice dissent, determined the convictions were against the weight of the evidence. The court noted that if the evidence of an element of an offense is legally insufficient the conviction of that offense is against the weight of the evidence:

The evidence at trial established that, when defendant was 30 years old, he met 16-year-old BD on an adult dating website. The two thereafter communicated via cell phone, text messages, Facebook messaging, Skype and Snapchat. Shortly thereafter, NS, a friend of BD, initiated contact with defendant through Facebook. NS was also 16 years old at the time. While communicating for weeks with both BD and NS via cell phone, text messages, Facebook, Skype and Snapchat, defendant lied about his age and his military status, among other things. Also, he flattered the girls by saying that they were “really cute” and that he “really liked” them. Both girls lived in Ontario County and were juniors in high school.

Defendant eventually met NS in person and drove her to his house in Monroe County, where they had sexual intercourse. Over the ensuing two or three weeks, defendant drove NS to his house three more times to engage in sexual activity. In the meantime, defendant twice had both sexual intercourse and oral sexual contact with BD, once at her house in Ontario County after picking her up at school and driving her home, and the other time at his house after driving her there. * * *

… [T]o convict defendant of luring a child, the People were required to establish that, on or about the dates alleged in the indictment, defendant lured the victims into his motor vehicle, that the victims were less than 17 years of age, and that defendant engaged in that activity for the purpose of committing a felony sex offense against the victims … . In our view, the People failed to prove that defendant lured the victims into a motor vehicle. …

The fact that defendant drove the victims to his house days and weeks later cannot transform his statements into luring. People v Ringrose, 2020 NY Slip Op 04719, Fourth Dept 8-20-20

 

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