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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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THE PETITIONS FOR WRITS OF HABEAS CORPUS SEEKING RELEASE FROM RIKERS ISLAND BASED UPON THE RISK OF CONTRACTING COVID-19 PROPERLY DENIED (FIRST DEPT).

The First Department determined the petitions for writs of habeas corpus brought by inmates at Rikers Island, arguing the risk of contracting COVID-19 at the jail required release, were properly denied. State and Federal constitutional arguments were raised. The analysis, which is too complex to fairly summarize here, came down to weighing the danger to the inmates against the danger to the public entailed by release:

Far from acting recklessly, respondents [city and state] have demonstrated great care to ensure the safety of everyone who enters the facility. By any objective measure, they have been anything but indifferent to the risk that COVID-19 poses to the jail population.

Even petitioners admit that respondents have taken substantial measures to reduce the spread of the virus on Rikers Island, and have had success in doing so. Moreover, petitioners have not cited to any controlling authority to establish that anything short of release constitutes deliberate indifference. …

That the State has agreed to release a significant number of detainees to help control the spread of the virus actually demonstrates that it has given a great deal of consideration to who should and should not be released, and its decision not to release petitioners based on their criminal history backgrounds is thus persuasive. Coupled with what the State and City have done to protect detainees, discussed above, we conclude that the weighing of interests falls in respondents’ favor. Matter of People ex rel. Stoughton v Brann, 2020 NY Slip Op 04236, First Dept 7-23-20

 

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THE CITY NEED NOT PROVE THE POLICE CORROBORATED INFORMATION PROVIDED BY AN INFORMANT IN A CIVIL ACTION FOR FALSE ARREST STEMMING FROM THE EXECUTION OF A SEARCH WARRANT BASED UPON ‘BAD CI INFORMATION’ (SECOND DEPT).

The Second Department determined that, in the context of a civil trial alleging false imprisonment stemming from police officers entering plaintiffs’ apartment to execute a search warrant, the city does not have to prove the police properly corroborated the informant’s allegations on which the warrant was based. Apparently, the informant provided “bad … information:”

To prevail on a cause of action alleging false arrest or false imprisonment, a plaintiff must prove (1) intentional confinement by the defendant, (2) of which the plaintiff was aware, (3) to which the plaintiff did not consent, and (4) which was not otherwise privileged … . “The existence of probable cause constitutes a complete defense to a cause of action alleging false arrest and false imprisonment” … . Unlike in a criminal prosecution, where the hearsay statements of an informant can only constitute probable cause if it is demonstrated that the informant is reliable and had a sufficient basis for his or her knowledge, in a trial in a civil action alleging false arrest or false imprisonment, it is not “appropriate for a jury to determine, as a factual matter, whether the police obtained sufficient corroboration of the information provided by an informant” … . In a civil action resulting from the detention of the occupants of premises searched pursuant to a search warrant, “there is a presumption of probable cause for the detention which the plaintiff must rebut with evidence that the warrant was procured based upon the false or unsubstantiated statements of a police officer” … . Ali v City of New York, 2020 NY Slip Op 04138, Second Dept 7-23-20

 

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DECISION ON APPEAL RESERVED AND MATTER REMITTED FOR A DETERMINATION WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS (FOURTH DEPT).

The Fourth Department, reserving decision on the appeal and remitting the matter, determined County Court should have ruled on whether defendant should be afforded youthful offender status:

Pursuant to CPL 720.10 (2) (a) (ii) and (3), because defendant was convicted of an armed felony offense (see CPL 1.20 [41]), he is ineligible for a youthful offender adjudication unless the court determines that one of two mitigating factors is present. “If the court, in its discretion, determines that neither of the CPL 720.10 (3) factors is present and states the reasons for that determination on the record, then no further determination is required” (… see People v Middlebrooks, 25 NY3d 516, 527 [2015]). “If, on the other hand, the court determines that one or more of those factors are present, and therefore defendant is an eligible youth, the court then must determine whether he is a youthful offender” … . As the People correctly concede, the court failed to follow the procedure set forth in Middlebrooks. People v Williams, 2020 NY Slip Op 04092, Fourth Dept 7-17-20

 

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