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POLICE DID NOT HAVE REASONABLE SUSPICION DEFENDANT WAS ENGAGED IN CRIMINAL ACTIVITY AT THE TIME OF THE STOP AND PURSUIT; THEREFORE THE WEAPON DISCARDED BY DEFENDANT SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT).

The First Department, reversing Supreme Court and dismissing the indictment, determined the police who stopped and pursued the defendant did not have reasonable suspicion of criminal activity at the outset. So the weapon discarded by the defendant should have been suppressed:

“Police pursuit is regarded as significantly impeding a person’s freedom of movement, thus requiring justification by reasonable suspicion that a crime has been, is being, or is about to be committed” … . By contrast, “mere surveillance need not be justified by reasonable suspicion” … .

Although the police actions began as permissible observation, while following defendant slowly in their car without turning on their lights or sirens … , observation gave way to pursuit when the officers turned on their lights and sirens to cross the street against traffic and pull up ahead of defendant. Even crediting one of the officer’s testimony that his intent was to get a better view and alert oncoming traffic, not to cut off, block, or alarm defendant, the objective impact of this maneuver was “intimidating” and communicated “an attempt to capture or . . . intrude upon [defendant’s] freedom of movement” … .

Because it is undisputed that the circumstances before this police activity were not sufficient to create reasonable suspicion, it was unlawful and could not be validated by any subsequently acquired suspicion … . When defendant discarded a handgun during the course of the illegal pursuit, he did not voluntarily abandon it and it should have been suppressed … . People v Collins, 2020 NY Slip Op 03852, First Dept 7-9-20

 

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FAMILY COURT ABUSED ITS DISCRETION BY DENYING THE REQUEST FOR AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL IN THIS JUVENILE DELINQUENCY PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court abused its discretion in denying appellant’s request for an adjournment in contemplation of dismissal in this juvenile delinquency proceeding:

The Family Court has broad discretion in determining whether to adjourn a proceeding in contemplation of dismissal … . Although, as it is often stated, a respondent is not entitled to an adjournment in contemplation of dismissal merely because this was his or her “first brush with the law” … , a respondent’s criminal and disciplinary history is nevertheless relevant to a court’s discretionary determination of whether to adjourn a proceeding in contemplation of dismissal … . Other relevant factors include, but are not necessarily limited to, a respondent’s history of drug or alcohol use … , a respondent’s association with gang activity … , a respondent’s academic and school attendance record … , the nature of the underlying incident … , a respondent’s decision to accept responsibility for his or her actions … , any recommendations made in a probation or mental health report … , the degree to which the respondent’s parent or guardian is involved in the respondent’s home and academic life … , and the ability of the respondent’s parent or guardian to provide adequate supervision … .

Here, the Family Court improvidently exercised its discretion in denying the appellant’s application pursuant to Family Court Act § 315.3(1) for an adjournment in contemplation of dismissal. This proceeding constituted the appellant’s first contact with the court system, the appellant took responsibility for his actions, and the record demonstrates that he had learned from his mistakes. Matter of Brian M., 2020 NY Slip Op 03785, Second Dept 7-8-20

 

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IN THIS BATSON CHALLENGE CASE, THE MAJORITY HELD THE DEFENSE’S FAILURE TO ADDRESS THE PROSECUTOR’S STATED REASON FOR EXCLUDING A PROSPECTIVE JUROR, I.E. THAT THE PROSPECTIVE JUROR WAS NOT AFRICAN-AMERICAN, PRECLUDED APPEAL ON THAT ISSUE; THE DISSENT ARGUED THE THREE-STEP BATSON PROCEDURE WAS NOT FOLLOWED WITH RESPECT TO THAT JUROR, REQUIRING REVERSAL (SECOND DEPT).

The Second Department, over an extensive two-justice dissent, determined defendant’s Batson challenges were properly handled by the court and properly denied. The defense challenged the exclusion of several African-American potential jurors. With respect to one of the potential jurors, Putsam, the prosecutor answered the challenge by simply saying Putsam was not African-American. Although all three stages of a Batson challenge were addressed with respect to the other challenged jurors, nothing further was argued with respect to Putsam. The dissent argued the required three-step process was not followed with Putsam, requiring reversal and a new trial:

A review of the trial transcript leads to the inescapable conclusion that the Supreme Court engaged in all three analytical steps required by Batson v Kentucky and our corresponding case authorities. The defendant made no argument of any kind as to juror Pustam during step three. Accordingly, she has failed to preserve the specific argument which she raises for the first time on appeal, which is based, in part, at least, on facts that are outside the record, to wit, that Pustam’s Trinidadian heritage qualifies as “African-American.” Indeed, any appellate consideration of this new argument would require this Court to (1) assume facts not within this record; and (2) more importantly, ignore the fact that defense counsel did not dispute or challenge the People’s contention that Pustam was not “African-American.”

The Court of Appeals has been clear that “[w]hen, as here, a party raises an issue of a pattern of discrimination in excluding jurors, and the court accepts the race neutral reasons given, the moving party must make a specific objection to the exclusion of any juror still claimed to have been the object of discrimination … . The defendant’s failure to discuss juror Pustam at all during step three suggests that counsel was not challenging any comment or determination made by the Supreme Court during step two as to Pustam. Similarly, the court’s exception noted unilaterally on the record at the conclusion of step three failed to preserve any “specific” argument for the defendant on appeal, as is expressly required by the Court of Appeals. Therefore, without preservation, our analysis of this appeal cannot reach the cases of People v Pescara (162 AD3d 1772) and People v Chance (125 AD3d 993), cited by the dissent in support of a Batson reversal on the basis of skin color. People v Taylor, 2020 NY Slip Op 03807, Second Dept 7-8-20

 

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PROPER FOUNDATION FOR EXPERT OPINION EVIDENCE FINDING THAT THE TESTED SUBSTANCES CONTAINED COCAINE WAS NOT LAID AND THE TESTIMONY WAS THEREFORE INADMISSIBLE; CONVICTIONS ON TWO DRUG-POSSESSION COUNTS REVERSED, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction on two drug possession counts, determined the People did not provide a proper foundation for the testimony of two experts who tested the substances alleged to contain cocaine:

The opinion testimony by these experts was inadmissible, because the People failed to lay a foundation for the competence of the testimony. “[A]n expert who tests a substance for the presence of cocaine may not rely solely upon a test involving a comparison of the substance at issue to a known standard when the accuracy of the known standard is not established” … . Here, the evidence adduced at trial reflected that Lin and Lopez each tested the purity of a sample of the substance recovered from the defendant by using a test which relied upon a comparison to a known standard. The People failed to introduce any direct evidence as to the accuracy of the standard used for comparison. Although an expert’s testimony that a substance contains cocaine is admissible when it is “not based solely upon comparative tests using a known standard but also on a series of other tests not involving known standards” … , here, the People failed to establish that either Lin or Lopez performed any other tests that did not involve comparison to a known standard. Thus, the Supreme Court should not have permitted their testimony, and a new trial is required on the counts charging criminal possession of a controlled substance in the fifth degree … . People v Campbell, 2020 NY Slip Op 03800, Second Dept 7-8-20

 

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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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