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BECAUSE THE GRAND JURY MINUTES WERE NOT PART OF THE MOTION TO AMEND THE INDICTMENT OR THE RECORD ON APPEAL, IT COULD NOT BE DETERMINED WHETHER THE DEFENDANT WAS ACTUALLY INDICTED ON THE OFFENSE CHARGED IN THE AMENDED INDICTMENT; PLEA VACATED AND AMENDED INDICTMENT DISMISSED (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea and dismissing the amended indictment, held that, because the grand jury minutes did not accompany the motion to amend the indictment and were not available to the appellate court, it could not be determined whether defendant was indicted on the charged offense, a jurisdictional defect. The People argued that the grand jury voted on the offense charged in the amended indictment but the wrong subdivision of the statute was set forth in the original indictment:

“The right to indictment by a [g]rand [j]ury has . . . been recognized as not merely a personal privilege of the defendant but a public fundamental right, which is the basis of jurisdiction to try and punish an individual”… . “[S]ince an infringement of defendant’s right to be prosecuted only by indictment implicates the jurisdiction of the court,” this claim is not waived by a guilty plea and may be raised for the first time on appeal … .  Thus, “[b]efore a person may be publicly accused of a felony, and required to defend against such charges, the [s]tate must a [g]rand [j]ury that sufficient legal reasons exist to believe the person guilty” … . To that end, an indictment ensures that “the crime for which the defendant is brought to trial is in fact one for which he [or she] was indicted by the [g]rand [j]ury, rather than some alternative seized upon by the prosecution” … , providing a safeguard against prosecutorial authority by requiring the grand jury to “assess[] the sufficiency of the prosecutor’s case” … .

The record before us only establishes that a grand jury indicted defendant for violating subdivision (7) of Penal Law § 120.05, not subdivision (3) of that statute. In their motion to amend, the People stated that “the grand jury was instructed on the correct section of the statute” — presumably subdivision (3) of Penal Law § 120.05 … — and that the amendment therefore did not change the theory of their case “as reflected in the instructions and the evidence before the [g]rand [j]ury,” asserting that the charge in the original indictment (under subdivision [7]) was an “inadvertent misstatement.” It is unclear if the People were representing that the grand jury actually indicted defendant under subdivision (3). People v Mathis, 2020 NY Slip Op 03696, Third Dept 7-2-20

 

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ANY CHALLENGE BASED ON A DEFECT IN THE SUPERIOR COURT INFORMATION AND WAIVER OF APPEAL FOR FAILURE TO SET FORTH THE DATE AND TIME OF THE OFFENSE WAIVED BY THE GUILTY PLEA; THE PLEA WAS INVALID BECAUSE OF THE INCOMPLETE COLLOQUY (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, determined the plea colloquy did not demonstrate defendant fully understood and voluntarily waived his right to trial. The court noted that the failure to set forth the date and time of the offense in the superior court information (SCI) and the waiver of indictment was not a jurisdictional defect and any related error was not preserved for appeal and was forfeited by the guilty plea:

Notwithstanding the omission of the date and approximate time of the offense, the waiver of indictment and the SCI, together with the underlying accusatory instruments prepared in connection with the incident, gave defendant reasonable notice of the felony sex crime with which he was being charged. In light of this, as well as the absence of any indication that defendant raised an objection before County Court to the sufficiency of the waiver of indictment or the SCI, or requested a bill of particulars, defendant’s challenge to the waiver of indictment and the SCI was forfeited by his guilty plea … . …

Preliminarily, we note that defendant’s challenge to the voluntariness of the plea is not precluded by his appeal waiver … and was preserved by his unsuccessful postallocution motion to withdraw his plea … . During the plea proceedings, County Court advised defendant that he was giving up a number of important rights by pleading guilty, including the right “to take the case to trial,” the “right to cross-examine people who testified against you,” and “the right to testify yourself or call your own witnesses.” The court further explained that he could not be convicted at trial unless the People proved to a jury beyond a reasonable doubt that he was guilty of the crime. The court, however, failed to mention the privilege against self-incrimination or ascertain whether defendant conferred with counsel regarding the trial-related rights that he was waiving and the constitutional consequences of entering a guilty plea … . Absent an affirmative showing that defendant fully understood and voluntarily waived his trial-related constitutional rights, the plea was invalid and must be vacated … . People v Oliver, 2020 NY Slip Op 03697, Third Dept 7-2-20

 

DEFENDANT’S INTELLECTUAL DISABILITY REQUIRED A MORE PROBING COLLOQUY BEFORE ACCEPTING THE GUILTY PLEA AND THE WAIVER OF APPEAL, PLEA VACATED (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea to murder, in a full-fledged opinion by Justice Manzanet-Daniels, determined defendant’s intellectual disability required a more probing colloquy to ensure defendant understood the ramifications of the plea and the waiver of appeal:

Defendant’s psychological assessments cast serious doubt about his ability to enter a knowing and voluntary plea. DOE records showed defendant to have been diagnosed as mentally retarded and to suffer from “severe academic delays.” The records indicated that with an IQ of only 56, defendant had “extremely low” “general cognitive ability,” with “overall thinking and reasoning abilities” in the bottom 0.2%. Those records further indicated that defendant’s verbal comprehension, perceptual reasoning, working memory, and processing speed were “extremely low,” in the bottom 0.2 to 2%.

The CPL 390 report, ordered by the trial court in aid of sentencing, confirmed the doubts regarding defendant’s mental capacity and ability to understand or participate in the proceedings. Doctors at Bellevue observed defendant to suffer from an intellectual disability with “extremely low” intellectual functioning. Defendant’s IQ placed him in the bottom one percentile as compared to his peers. The report noted that defendant’s limited cognitive abilities placed him at increased risk of impulsive behavior without regard to the consequences of his actions. People v Patillo, 2020 NY Slip Op 03754, Second Dept 7-2-20

 

FOR CAUSE CHALLENGE TO A JUROR SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (FIRST DEPT).

The First Departing, ordering a new trial, determined defendant’s for cause challenge to a juror should have been granted:

The challenged panelist stated that he could not be “fully fair” if defendant did not testify and “defend himself,” and that it might be difficult for him to acquit a defendant who did not testify, because then “we only get one side.” This reflected a state of mind likely to preclude the rendering of an impartial verdict (see CPL 270.20[1][b]), and the court did not elicit an unequivocal assurance that he would set aside any bias and render an impartial verdict based on the evidence … . When the court asked if he would “hold it against” defendant if defendant did not testify, he responded “No, not hold it against him, but —- I don’t know.” When the court further asked whether defendant’s failure to testify would trouble the panelist to the point where he could not give defendant a fair trial, he responded “I think I’ll be able to give him a fair trial.” Although expressions such as “I think” are not disqualifying, here the panelist’s responses, viewed as a whole, fell short of the required express and unequivocal declarations … . “If there is any doubt about a prospective juror’s impartiality, trial courts should err on the side of excusing the juror, since at worst the court will have replaced one impartial juror with another” … . People v Laverpool, 2020 NY Slip Op 03745, First Dept 7-2-20

 

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ALTHOUGH DEFENDANT COMPLETED HIS SENTENCE HE IS ENTITLED TO A DETERMINATION WHETHER HE SHOULD BE ADJUDICATED A YOUTHFUL OFFENDER; THE ORDER OF PROTECTION EXCEEDED THE STATUTORY TIME LIMIT (SECOND DEPT).

Although defendant had already completed his sentence, the Second Department held he was entitled to a determination whether he should be adjudicated a youthful offender, even if that relief was not requested. In addition, the Second Department noted the order of protection exceeded the maximum time allowed in the Criminal Procedure Law and did not take into account defendant’s jail-time:

In People v Rudolph (21 NY3d 497, 499), the Court of Appeals held that compliance with CPL 720.20(1), which provides that the sentencing court “must” determine whether an eligible defendant is to be treated as a youthful offender, “cannot be dispensed with, even where defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request.” Compliance with CPL 720.20(1) requires the sentencing court to actually consider and make an independent determination of whether an eligible youth is entitled to youthful offender treatment … .

Here, the record does not demonstrate that the Supreme Court considered whether to adjudicate the defendant a youthful offender. “Generally, under such circumstances, the sentence is vacated, and the matter remitted to the sentencing court for resentencing after determining whether the defendant should be treated as a youthful offender”… . However, in this case, the defendant has served his sentences. Under these circumstances, we remit the matter to the Supreme Court, Kings County, to determine whether the defendant should be afforded youthful offender treatment and thereafter submit a report to this Court advising of its determination, and hold the appeals in abeyance in the interim … . People v Shehi, 2020 NY Slip Op 03676, Second Dept 7-1-20

 

RESTITUTION PAYABLE TO THE CRIME VICTIMS BOARD EXCEEDED THE STATUTORY CAP FOR A FELONY (SECOND DEPT).

The Second Department noted that the restitution amount payable to the Crime Victims Board exceeded the statutory cap:

… [T]he amount of restitution payable to the Crime Victims Board for the family of Sherman Richardson improperly exceeds $15,000 and violates the statutory cap in Penal Law § 60.27(5)(a). Penal Law § 60.27(5)(a) provides that, except with the consent of the defendant or in instances where restitution is ordered as a condition of probation or conditional discharge, “the amount of restitution or reparation required by the court shall not exceed fifteen thousand dollars in the case of a conviction for a felony” … . This provision is qualified by Penal Law § 60.27(5)(b), which allows a court to order restitution in excess of this amount as long as the sum is “limited to the return of the victim’s property, including money, or the equivalent value thereof” … . As for the restitution payable to the Crime Victims Board for Richardson’s family, the amount in excess of $15,000 did not meet the requirements of Penal Law § 60.27(5), since the amount of the defendant’s restitution set by the Supreme Court was not intended as reimbursement for the value of the property destroyed. However, restitution in the sum of $3,374.75 to Enterprise Rent-A-Car, the owner of the vehicle operated by the defendant and later set on fire, was proper … . People v Grant, 2020 NY Slip Op 03674, Second Dept 7-1-20

 

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ALTHOUGH IT WAS ERROR TO DENY THE DEFENSE REQUEST FOR A RODRIGUEZ HEARING BASED UPON THE PROSECUTOR’S ASSERTION THE COMPLAINANT AND THE DEFENDANT KNEW EACH OTHER, THE TRIAL TESTIMONY DEMONSTRATED THE COMPLAINANT AND DEFENDANT IN FACT KNEW EACH OTHER; THE DISSENT ARGUED THE COURT OF APPEALS REQUIRES THAT THE IDENTIFICATION ISSUE BE RESOLVED BEFORE TRIAL (SECOND DEPT).

The Second Department affirmed defendant’s conviction over a substantive dissent. Arguing against a Wade hearing addressing the suggestiveness of the complainant’s identification of the defendant from single photograph displays, the prosecutor told the judge the complainant and the defendant knew each other and the identification procedures were merely confirmatory. Defendant denied knowing the complainant and requested a Rodriguez hearing. The judge denied the request based on the People’s assertion the identification procedures were confirmatory. The denial of the Rodriguez hearing was deemed to be error, but the majority concluded the hearing was not necessary because the trial testimony demonstrated the complainant knew the defendant. The dissent argued the Court of Appeals, in the Rodriguez case, required resolution of the identification issue before trial:

The Supreme Court erred in relying on the People’s mere assurances of familiarity in denying the defendant’s pretrial request for a Rodriguez hearing  … . Nevertheless, a hearing with regard to the single-photograph identifications made by the complainant soon after the shooting was ultimately unnecessary inasmuch as the complainant’s trial testimony demonstrated that he was sufficiently familiar with the defendant, whom he knew and referred to by the defendant’s street name,”Chulo,” such that the complainant’s identification of the defendant from the photo display was merely confirmatory … . * * * When a crime has been committed by a . . . long-time acquaintance of a witness there is little or no risk that comments by the police, however suggestive, will lead the witness to identify the wrong person'” … . Any suggestiveness of the initial photo identification procedure or the purported taint thereafter was not a concern since ” the protagonists are known to one another'” … . ​People v Carmona, 2020 NY Slip Op 03672, Second Dept 7-1-20

 

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DEFENDANT ALLEGED DEFENSE COUNSEL OVERSTATED THE RISK OF DEPORTATION CAUSING HIM TO REJECT A FAVORABLE PLEA OFFER; DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE (FIRST DEPT).

The First Department, reversing Supreme Court, determined a hearing was necessary on defendant’s motion to vacate his conviction based upon ineffective assistance of counsel. Defendant alleged defense counsel overstated the risk of deportation causing defendant to reject a favorable plea offer:

A defense attorney’s performance is deficient as a matter of law where he or she fails to accurately advise a client of the risk of deportation … . Here, defendant complains that his counsel overstated the immigration consequences of accepting an offer of a guilty plea to petit larceny by advising him that it would “definitely” result in deportation, when in fact it would only have rendered him deportable with the possibility of discretionary relief. Thus, defendant asserts that he rejected a favorable plea offer based on erroneous advice that the conviction would result in mandatory deportation.

We find that a hearing is necessary to determine whether counsel inaccurately advised defendant of the risk of deportation and if so, whether defendant was prejudiced by the attorney’s misadvice … . People v Qinghua Ni, 2020 NY Slip Op 03621, First Dept 6-25-20

 

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THE OPINION CHANGING THE CRITERIA FOR THE DEPRAVED-INDIFFERENCE MENS REA CAME DOWN BEFORE DEFENDANT’S CONVICTION BECAME FINAL; DESPITE THE AFFIRMANCE OF DEFENDANT’S MURDER CONVICTION ON APPEAL, THE DENIAL OF A MOTION TO REARGUE THE APPEAL, THE DENIAL OF THE MOTION FOR LEAVE TO APPEAL TO THE COURT OF APPEALS, AND THE DENIAL OF DEFENDANT’S PETITION FOR A WRIT OF HABEAS CORPUS IN FEDERAL COURT, SUPREME COURT SHOULD HAVE GRANTED DEFENDANT’S MOTION TO VACATE HIS CONVICTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his depraved-indifference murder conviction should have been granted. The Court of Appeals opinion which changed the proof requirements for the depraved indifference mens rea was issued before defendant’s conviction became final. The proof at defendant’s trial demonstrated defendant acted intentionally as opposed acting with “depraved indifference:”

… [T]he defendant moved pursuant to CPL 440.10(1)(h) to vacate so much of the judgment as convicted him of depraved indifference murder, arguing that, in light of People v Payne (3 NY3d 266), which was decided 15 days after this Court affirmed the judgment of conviction on his direct appeal but before his conviction became final (see Policano v Herbert, 7 NY3d at 593), the evidence at trial was legally insufficient to establish that he acted with the requisite mens rea for depraved indifference murder. The Supreme Court denied the motion without a hearing, as both procedurally barred by CPL 440.10(2)(a) and meritless. The court reasoned that the defendant’s legal sufficiency argument based on the change of law set forth in People v Payne had been addressed and rejected by this Court in denying the defendant’s motion for leave to reargue his direct appeal, by the Court of Appeals in denying the defendant’s motion for leave to appeal, and by the federal court in denying the defendant’s petition for a writ of habeas corpus. With respect to the merits of the defendant’s motion, the Supreme Court determined that, viewing the evidence in the light most favorable to the prosecution, the evidence was legally sufficient to support the jury’s verdict. * * *

… [T]he trial evidence was not legally sufficient to support a verdict of guilt of depraved indifference murder (see People v Payne, 3 NY3d at 272; People v Hernandez, 167 AD3d at 940). People v Illis, 2020 NY Slip Op 03535, Second Dept 6-24-20

 

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DEFENSE ‘FALSE CONFESSION’ EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY, CONVICTION REVERSED; RIGHT TO CONFRONT WITNESSES NOT VIOLATED BY STATEMENTS IN THE VIDEO INTERROGATION THAT NONTESTIFYING WITNESSES HAD IMPLICATED THE DEFENDANT (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction, determined the defense “false confession” expert should have been allowed to testify. The defendant was 15 when arrested. He maintained his innocence for two hours and 45 minutes of interrogation before confessing. The Second Department rejected defendant’s argument that he was denied his right to confront witnesses by statements in the video interrogation that nontestifying witnesses had implicated the defendant:

Contrary to the defendant’s contention, his right to confrontation was not violated when the Supreme Court allowed into evidence portions of his videotaped statement to law enforcement officials that contained statements that nontestifying witnesses had implicated him in the crime. The statements were not received for their truth, but to explain the defendant’s reaction to hearing them … . Further, the court properly instructed the jury that it was not to consider any of the statements as evidence against the defendant, and the jury is presumed to have followed this admonition … . * * *

… Supreme Court improvidently exercised its discretion in denying the defendant’s application to permit testimony from his expert witness on the issue of false confessions. We have previously determined that “it cannot be said that psychological studies bearing on the reliability of a confession are, as a general matter, within the ken of the typical juror'” … . Thus, here, the court should not have precluded the testimony of the defendant’s expert witness on this ground.

Further, “[w]ith regard to expert testimony on the phenomenon of false confessions, in order to be admissible, the expert’s proffer must be relevant to the [particular] defendant and interrogation before the court'” … . Here, the report of the defendant’s expert was sufficiently detailed so that it was relevant to this particular defendant, including discussing characteristics that heightened his vulnerability to manipulation, and the interrogation conducted by the detectives, such as the techniques that were utilized and the improper participation of the defendant’s mother during the interview. People v Churaman, 2020 NY Slip Op 03526, Second Dept 6-24-20

 

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