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DEFENDANT SHOULD HAVE BEEN ALLOWED TO MAKE A PERSONAL STATEMENT BEFORE RESENTENCING, RESENTENCE REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s resentence, determined defendant should have been allowed to make a sentence before the sentence was pronounced:

At that proceeding, the defendant requested an opportunity to address the court. The court denied the defendant’s request. The defendant appeals, and we reverse.

A defendant is entitled “to make a statement personally in his or her own behalf, and before pronouncing sentence the court must ask the defendant whether he or she wishes to make such a statement” ( CPL 380.50 [1]). “[T]he provisions of CPL 380.50 apply to occasions of resentencing as well as to those of initial sentencing”  … . Here, the defendant was denied that opportunity. Accordingly, we remit the matter … for resentencing to give the defendant an opportunity to make a statement in his behalf … . People v Taylor, 2020 NY Slip Op 04413, Second Dept 8-5-20

 

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BY ENTERING A PLEA AGREEMENT WITH A TESTIFYING CODEFENDANT THE TRIAL JUDGE ABANDONED THE ROLE OF A NEUTRAL ARBITER AND DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial before a different judge, determined defendant was deprived of a fair trial by the judge’s entering a plea agreement with a testifying codefendant:

The defendant …  contends that he was deprived of his due process right to a fair trial by the County Court’s act of entering into a plea agreement with the testifying codefendant. The court’s agreement with the codefendant was made in conjunction with a cooperation agreement reached between the codefendant and the People. The codefendant had been charged with, inter alia, murder in the second degree. The People had promised to recommend a determinate sentence of imprisonment between two and seven years in exchange for the codefendant’s guilty plea to the reduced charge of attempted robbery in the second degree. However, the court promised the codefendant a sentence of only probation in exchange for her testimony against the defendant. Although the defendant failed to preserve this issue for appellate review (see CPL 470.05[2]), we nevertheless reach it in the exercise of our interest of justice jurisdiction.

We agree with the defendant that, under the circumstances here, the County Court committed reversible error when it “negotiated and entered into a [plea] agreement with a codefendant requiring that individual to testify against defendant in exchange for a more favorable sentence” … . By doing so, “the trial court abandoned the role of a neutral arbiter and assumed the function of an interested party, thereby creating a specter of bias that requires reversal” … . People v Greenspan, 2020 NY Slip Op 04408, Second Dept 8-5-20

 

THE JUDGE DID NOT PRONOUNCE THE LENGTH OF THE TERM OF PROBATION, SENTENCE VACATED AND MATTER REMITTED (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined the judge’s failure to pronounce the term of probation required remittal:

CPL 380.20 requires that courts “must pronounce sentence in every case where a conviction is entered.” “When the sentencing court fails to orally pronounce a component of the sentence, the sentence must be vacated and the matter remitted for resentencing in compliance with the statutory scheme” … . Here, although the parties do not dispute that, as part of the negotiated disposition, the defendant was promised a term of probation of three years, the sentence must be vacated and the matter must be remitted to the Supreme Court, Kings County, for resentencing because the court failed to pronounce the length of the probation term … . People v Childs, 2020 NY Slip Op 04404, Second Dept 8-5-20

 

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RESTITUTION ORDERED WAS GREATER THAN THAT AGREED TO IN THE PLEA AGREEMENT; ALTHOUGH THE ISSUE WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE; RESTITUTION VACATED AND MATTER REMITTED (THIRD DEPT).

The Third Department, vacating the restitution award in the interest of justice, determine the restitution ordered was not that agreed to in the plea agreement:

Defendant contends that Supreme Court improperly enhanced the sentence by ordering him to pay restitution in an amount greater than what was agreed to under the plea agreement. The record supports his claim, and the People concede that the restitution award should be reduced. Although defendant failed to preserve his claim by requesting a hearing or objecting to the amount of restitution at sentencing, we deem it appropriate to take corrective action in the interest of justice … . As defendant was not sentenced in accordance with the plea agreement, the matter must be remitted to Supreme Court to provide defendant with the opportunity to either accept the sentence with the enhanced restitution award or withdraw his guilty plea … . In addition, as Supreme Court failed to set forth the time and manner of payment of the amount of restitution in the restitution order, this omission must also be addressed upon remittal … . People v Gravell, 2020 NY Slip Op 04344, Third Dept 7-30-20

 

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THE DUPLICITY IN THE INDICTMENT WAS REMEDIED BY DETAILS PROVIDED TO THE DEFENSE PRIOR TO TRIAL AND BY DETAILED TRIAL EVIDENCE (FOURTH DEPT).

The Fourth Department held the prosecutor had remedied the duplicity in the indictment by providing information in a supplemental bill of particulars and a “trial indictment” after the motion to dismiss for duplicity was made, information corroborated by detailed trial evidence;

With respect to the counts of criminal sexual act in the first degree, after defendant made his motion, the prosecutor provided him with a supplemental bill of particulars that identified a precise date for each of the first 10 counts of criminal sexual act in the first degree. We conclude that dismissal of those counts is not required because the duplicity was “cured by reference to a bill of particulars supplementing the indictment” … . ,,,

With respect to the counts of rape in the first degree, although the duplicity of those counts was left unaddressed by the supplemental bill of particulars, before trial, the prosecutor provided defendant with a document styled as a “trial indictment,” which indicated that the People intended to prove a specific instance with respect to each of the counts on which defendant was ultimately convicted … . In addition, the People provided evidence of those specific instances of forced sexual intercourse at trial by offering the testimony of the victim … . The victim’s testimony was detailed, graphic, and corroborated by receipts, photographs, and emails that allowed the victim to pinpoint the precise dates on which each of those incidents of forced sexual intercourse occurred. “Because defendant was convicted only of those counts of [rape in the first degree] where pretrial notice of specific instances was given and where those specific instances were proved at trial” … , we conclude that dismissal of those counts as duplicitous was not required. People v Quiros, 2020 NY Slip Op 04279, Fourth Dept 7-24-20

 

DEFENDANT’S SENTENCE REDUCED IN THIS MANSLAUGHTER, BURGLARY, MURDER CASE DUE TO DEFENDANT’S AGE AND MENTAL ILLNESS (FOURTH DEPT).

The Fourth Department found defendant’s sentence of 25 years to life in this manslaughter, burglary, murder case unduly harsh and severe due to his age and his mental illness. Sentence reduced to 15 years to life:

This Court “has broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances, even though the sentence may be within the permissible statutory range,” and may exercise that power, “if the interest of justice warrants, without deference to the sentencing court” … . Defendant was 20 years old at the time of the offense. His criminal history consisted of only three incidents within the year leading up to the killing, all of which stemmed from the onset of defendant’s documented schizophrenia and all charges were dismissed as a result of defendant’s incapacity due to mental disease or defect. Here, at trial, both experts testified that, at the time of the killing, defendant was experiencing delusions. Indeed, the People’s own expert expressly recognized that defendant had a diminished capacity to understand the wrongfulness of his actions at the time and that “the action was a product of his symptoms of mental illness.” … [W]e modify the judgment by reducing the sentences of imprisonment imposed for manslaughter in the first degree under count one of the indictment and for burglary in the first degree under counts three and four of the indictment to determinate terms of 15 years, to be followed by the five years of postrelease supervision imposed by the court, and by reducing the sentence imposed for murder in the second degree under count two of the indictment to an indeterminate term of incarceration of 15 years to life. People v Gillie, 2020 NY Slip Op 04275, Third Dept 7-24-20

 

DEFENDANT WAS PROPERLY SENTENCED TO INCARCERATION UPON A VIOLATION OF PROBATION IN THIS FELONY DWI CASE, DESPITE DEFENDANT’S COMPLETION OF THE SIX-MONTH PERIOD OF INCARCERATION ORIGINALLY IMPOSED (FOURTH DEPT). ​

The Fourth Department determined defendant was properly sentenced to imprisonment after a violation of probation in this felony DWI case, despite his completion of the original six-month sentence:

County Court sentenced defendant to six months of imprisonment and five years of probation on each count. Several years later, after serving the imprisonment portion of his sentence, defendant admitted that he had violated the conditions of his probation. He now appeals from a judgment that revoked his sentence of probation and sentenced him to concurrent indeterminate terms of imprisonment. * * *

Courts have held that, where a defendant is originally sentenced pursuant to section 60.21 and then later violates the terms of his or her probation or conditional discharge after fully serving his or her term of incarceration, the defendant cannot be sentenced to an additional term of incarceration without violating the rule against multiple punishments for the same offense … . Defendant thus contends that, inasmuch as he completed the imprisonment portion of his original sentence, the court was not authorized to impose an additional sentence of imprisonment upon his admission that he violated the conditions of his probation. We reject that contention.

Contrary to defendant’s contention, he was not originally sentenced to a term of imprisonment under Penal Law § 60.21 with respect to any of the three counts. That section provides, in pertinent part, that “[n]otwithstanding [section 60.01 (2) (d)], when a person is to be sentenced upon a conviction for a violation of [Vehicle and Traffic Law § 1192 (2), (2-a) or (3)], the court may sentence such person to a period of imprisonment authorized by article seventy of this title and shall sentence such person to a period of probation or conditional discharge” (§ 60.21 …). The probation or conditional discharge imposed pursuant to section 60.21 is to run consecutively to any period of imprisonment imposed pursuant to article 70. Here, however, defendant was not sentenced to a period of imprisonment pursuant to Penal Law article 70. Rather, he was sentenced on each count to a traditional split sentence pursuant to Penal Law § 60.01 (2) (d), with the period of probation running concurrently with the period of imprisonment. Thus, Penal Law § 60.21 is inapplicable to this case and does not preclude the imposition of a sentence of imprisonment upon the revocation of probation … . People v Boldt, 2020 NY Slip Op 04284, Fourth Dept 7-24-20

 

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THE DEFENDANT’S DNA ON THE WEAPON AND DEFENDANT’S PRESENCE AS A PASSENGER IN THE CAR WHERE THE WEAPON WAS FOUND WERE NOT SUFFICIENT TO PROVE DEFENDANT POSSESSED THE WEAPON AT THE TIME ALLEGED IN THE INDICTMENT; DEFENDANT’S CONVICTION REVERSED BASED ON A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT).

The Fourth Department, reversing defendant’s possession of a weapon conviction, applying a weight of the evidence analysis, determined the defendant’s DNA on the weapon and his presence as a passenger in the car where the weapon was found was not enough:

It is undisputed that the driver owned the vehicle and that the duffle bag belonged to him as well. The People relied on evidence that defendant’s DNA profile matched that of the major contributor to DNA found on the handgun and that the driver was excluded as a contributor thereto. Although ” an inference could be made [from that evidence] that defendant had physically possessed the gun at some point in time’ ” … , that evidence alone … does not establish that defendant actually possessed the handgun on the date and at the time alleged in the indictment … . …

Defendant was not the owner or operator of the vehicle, nor did the duffle bag in the locked trunk belong to him, and there was no evidence that defendant possessed or had access to the keys for the vehicle or that he had any access to or control over the trunk and duffle bag … . Contrary to the People’s contention, defendant’s statement to the police did not constitute an admission that he had possessed the handgun …  or that he knew about its presence in the duffle bag and, in any event, mere knowledge of the presence of the handgun would not establish constructive possession … . People v Hunt, 2020 NY Slip Op 04270, Fourth Dept 7-24-20

 

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THE PERSISTENT FELONY OFFENDER STATEMENT WAS INADEQUATE BECAUSE IT DID NOT CLEARLY INDICATE THE PERIODS OF DEFENDANT’S PRIOR INCARCERATION; THEREFORE, BECAUSE THE TEN-YEAR CUT-OFF PERIOD IS TOLLED DURING INCARCERATION, IT COULD NOT BE DETERMINED WHETHER DEFENDANT’S PRIOR FELONIES FELL WITHIN THE TEN-YEAR CUT-OFF PERIOD FOR A VALID PERSISTENT FELONY OFFENDER SENTENCE (FOURTH DEPT). ​

The Fourth Department, reversing County Court, determined the persistent felony offender statement was inadequate because it did not clearly describe the periods of defendant’s incarceration, which tolls the ten-year cut off for consideration of prior felonies. The matter was remitted for the submission of a valid statement and resentencing:

The sentences upon the predicate violent felony convictions “must have been imposed not more than ten years before commission of the felony of which the defendant presently stands convicted” (§ 70.04 [1] [b] [iv]). However, “[i]n calculating the ten year period . . . , any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such incarceration” (§ 70.04 [1] [b] [v]). It is undisputed that, here, the sentences for defendant’s two prior violent felony convictions were imposed more than 10 years before defendant committed the subject violent felony offense (see §§ 70.04 [1] [b]; 70.08 [1] [a], [b]). Thus, the prior violent felony convictions may be considered predicate violent felony convictions only in accordance with the tolling provision of section 70.04 (1) (b) (v) based upon defendant’s subsequent periods of incarceration.

Because the tolling provision of Penal Law § 70.04 (1) (b) (v) is implicated, the persistent violent felony offender statement filed by the People was required to “set forth the date of commencement and the date of termination as well as the place of imprisonment for each period of incarceration to be used for tolling of the ten year limitation” (CPL 400.15 [2]; see CPL 400.16 [1], [2]). Here, however, the statement filed by the People did not comply with that requirement … . Moreover, contrary to the position taken by the People that the statement substantially complies with CPL 400.15, the absence of the required information deprived defendant of the requisite “reasonable notice and an opportunity to be heard” with respect to the tolling period … . People v Watkins, 2020 NY Slip Op 04265, Fourth Dept 7-24-20

 

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DEFENDANT TOLD THE POLICE HE DIDN’T WANT TO TALK, HIS STATEMENT SHOULD HAVE BEEN SUPPRESSED BUT THE ERROR WAS HARMLESS; CONSECUTIVE SENTENCES FOR POSSESSION OF THE KNIFE AND MURDER BY STABBING FOUND PROPER (FOURTH DEPT).

The Fourth Department determined defendant’s statement should have been suppressed but found the error harmless. The Fourth Department further held that defendant was properly sentenced to consecutive sentences for possession of the knife and murder by stabbing:

… [D]efendant unequivocally informed the police immediately after being advised of his Miranda rights that “he didn’t want to talk.” No reasonable police officer could have interpreted that statement as anything other than a desire not to talk to the police … . Regardless, the police continued the interrogation, thereby failing to ” scrupulously honor[ ]’ defendant’s right to remain silent” … .

Nevertheless, the error is harmless because the evidence of defendant’s guilt is overwhelming and there is no reasonable possibility that any error in admitting defendant’s statements to the police contributed to his conviction … . * * *

In cases concerning consecutive sentencing in the CPW [criminal possession of a weapon] context, we employ a framework that “appropriately reflects the heightened level of integration between the possession and the ensuing substantive crime for which the weapon was used” … . To determine whether a single act constituted both offenses under section 70.25 (2), we look to when the crime of possession was completed, i.e., both the actus reus and mens rea … .”Only where the act of possession is accomplished before the commission of the ensuing crime and with a mental state that both satisfies the statutory mens rea element and is discrete from that of the underlying crime may consecutive sentences be imposed” … . Consecutive sentencing is permissible here because defendant’s act of possessing the knife was accomplished before he used it to kill the victim and “defendant’s possession [thereof] was marked by an unlawful intent separate and distinct from” his intent with respect to the homicide … . Indeed, the mental state associated with the CPW count, i.e., intent to use the knife unlawfully, is discrete from the mental state associated with the homicide count, i.e., negligence … . People v Colon, 2020 NY Slip Op 04257, Fourth Dept 7-24-20

 

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