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DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMANDED; DEFENDANT WAS NOT INFORMED THAT BY PLEADING GUILTY TO A PROBATION VIOLATION HE WAS GIVING UP HIS RIGHT TO A HEARING; APPEAL CONSIDERED IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, remanding the matter, determined defendant was not advised he could be deported based on his guilty plea, and further determined defendant’s plea to a probation violation was defective because he was not informed he was giving up his right to a hearing. Although the issue was not preserved by a motion to withdraw the plea, the appeal was heard in the interest of justice:

When defendant, a noncitizen, pleaded guilty to criminal possession of a firearm, the court did not advise him that if he was not a citizen, he could be deported as a consequence of his plea. Even though he did not move to withdraw his guilty plea, there is no evidence that defendant knew about the possibility of deportation during the plea and sentencing proceedings. As such, the claim falls within the “narrow exception” to the preservation doctrine (People v Peque, 22 NY3d 168, 183 [2013], cert denied 574 US 850 [2014]). Therefore, defendant should be afforded the opportunity to move to vacate his plea upon a showing that there is a “reasonable probability” that he would not have pleaded guilty had the court advised him of the possibility of deportation (id. at 198). Accordingly, we remit for the remedy set forth in Peque (id. at 200-201), and we hold the appeal in abeyance for that purpose.

Furthermore, defendant’s guilty plea to violation of probation was defective because there was no allocution about whether defendant understood that he was giving up his right to a hearing on the violation. While there is no mandatory catechism, Supreme Court failed to “advise defendant of his rights or the consequences regarding an admission to violating probation, including that he understood that he was entitled to a hearing on the issue and that he was waiving that right” … . Although defendant never moved to withdraw this plea and his claim is unpreserved, we review it in the interest of justice. People v Pinnock, 2020 NY Slip Op 02731, First Dept 5-7-20

 

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ALTHOUGH THERE WAS EVIDENCE DEFENDANT WAS SELLING TICKETS TO A SPORTING EVENT OUTSIDE THE ARENA, THE EVIDENCE DEFENDANT KNEW THE TICKETS WERE FORGED WAS LEGALLY INSUFFICIENT; DEFENDANT’S FLIGHT WHEN HE SAW THE POLICE WAS EQUIVOCAL (FIRST DEPT).

The First Department, reversing defendant’s convictions of criminal possession of a forged instrument, determined the evidence that defendant knew the Rangers tickets were forged was legally insufficient. The defendant briefly held an envelope containing the tickets and fled when he say the police:

Defendant approached Rangers fans outside of Madison Square Garden before a game, and at one point said “tickets, tickets.” He was on a cell phone call for a few seconds with an unspecified caller, the substance of which was not overheard. Defendant then met an unapprehended man, who gave defendant an envelope, which he immediately passed to a codefendant. The envelope, which the police recovered from the codefendant, contained a birthday card and the four forged Rangers tickets.

The evidence suggested that defendant sought to buy or sell tickets, but it did not show that he knew the tickets in question were forged. Even if the evidence established that defendant knowingly acted in concert with one or more other persons to sell tickets, in the circumstances presented this failed to support an inference that he knew he was selling forged tickets. His momentary possession of the envelope as he took it from one man and handed it to another, without looking inside or otherwise seeing the tickets, and the lack of any evidence of the codefendant’s conduct, besides his walking with defendant and receiving the tickets, does not suffice to establish that defendant knew the tickets were forged, either personally or while acting in concert with the codefendant.

Defendant’s flight from a plainclothes officer, whom defendant may have recognized, was too equivocal to prove that he knew the tickets inside the envelope were forged. There are other reasonable explanations for defendant’s flight, such as his potential awareness that it is unlawful to sell tickets, even if genuine, in the vicinity of the Garden … . People v Johnson, 2020 NY Slip Op 02708, First Dept 5-7-20

 

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ALTHOUGH DEFENDANT’S SUPPRESSION MOTION RELATED TO A THEFT ON OCTOBER 3 AND DEFENDANT PLED GUILTY TO A DIFFERENT THEFT ON OCTOBER 1 IN SATISFACTION OF BOTH, DEFENDANT WAS ENTITLED TO APPELLATE REVIEW OF HIS SUPPRESSION MOTION; THE APPELLATE DIVISION’S DENIAL OF REVIEW REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, determined defendant was entitled to appellate review of the denial of his suppression motion even though the suppression motion did not relate to the offense to which defendant pled guilty. The defendant was charged with two thefts from the same residence on different days, a laptop computer taken on October 1 and jewelry taken on October 3. The police stopped the defendant on the street on October 3 and seized the jewelry. The suppression hearing related to that street stop. The defendant pled guilty to the theft of the computer and the jewelry-theft was satisfied by the plea. The Fourth Department held defendant was not entitled to appellate review of the jewelry-related suppression motion because defendant pled to the computer-theft. The case was sent back for review of the denial of the suppression motion:

Defendant was charged by indictment with two counts of burglary in the second degree … . The first count related to the laptop computer, taken from a dwelling on October 1, 2014; the second count related to the jewelry, which was taken from the same dwelling on October 3, 2014, the day of the arrest.

Defendant moved to suppress the jewelry, contending that his detention and the seizure of the jewelry violated his right to freedom from unreasonable searches and seizures …. Following a suppression hearing, with testimony from two of the police officers present at the arrest, Supreme Court denied defendant’s motion, concluding that the police had “reasonable suspicion that a crime had been committed and that the defendant was the perpetrator.”

Defendant, a predicate felony offender who was facing a maximum sentence of 30 years in prison if convicted of both counts of burglary, pleaded guilty to one count of burglary in the second degree, in satisfaction of the entire indictment. … [D]efendant pleaded guilty to the October 1 burglary, as charged in the count pertaining to the theft of the laptop computer, in satisfaction of the count charging the October 3 burglary of jewelry, which was the subject of his motion to suppress.  * * *

“[W]hen a conviction is based on a plea of guilty an appellate court will rarely, if ever, be able to determine whether an erroneous denial of a motion to suppress contributed to the defendant’s decision, unless at the time of the plea he states or reveals his reason for pleading guilty” … . * * *

A defendant who pleads guilty to one count will invariably take into consideration that other counts are satisfied by the plea. Importantly, a count satisfied by a guilty plea bears the double jeopardy consequences of a judgment of conviction. The judgment in this case prevents the People from prosecuting defendant again for the October 3, 2014 burglary, even though defendant did not plead to that count … . People v Holz, 2020 NY Slip Op 02682, CtApp 5-7-20

 

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THE RECORD DID NOT SUPPORT DEFENDANT’S ARGUMENT THAT DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO CHALLENGE AN ALLEGEDLY BIASED JUROR; THE RECORD DID NOT SUPPORT A CONSTITUTIONAL INEFFECTIVE ASSISTANCE CLAIM; THEREFORE DIRECT APPEAL, AS OPPOSED TO A MOTION TO VACATE THE CONVICTION, WAS NOT AVAILABLE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a comprehensive, extended dissenting opinion, determined defendant’s constitutional ineffective assistance argument based upon defense counsel’s failure to challenge an allegedly biased juror was properly rejected. The record was deemed insufficient to support the constitutional challenge. A motion to vacate the conviction, pursuant to Criminal Procedure Law section 440, based upon matters not in the record, may be the only avenue available to the defendant here. The defendant was charged with depraved indifference murder stemming from a drive-by shooting:

We reject defendant’s argument here that prospective juror number 10’s statements during voir dire reflect actual bias against defendant predicated on any evidence precluding the juror from rendering an impartial verdict, as opposed to general discomfort with the case based on media coverage. Contrary to defendant’s assertion, the juror’s verbatim statements did not reveal what about the case gave rise to his uneasiness — whether it be the seemingly random nature of the shooting, the defendant’s or victim’s identity, or the manner in which the police investigated … . Nor did this juror convey that his uneasiness was connected to any particular personal experience or relationship, … or whether his impressions risked predisposition toward the prosecution or defense. Moreover, as both the prosecutor and trial court indicated in questioning the juror, this case turned not on a dispute about the nature of the crime but on the prosecutor’s ability to prove that this defendant committed it — an issue not impacted by the juror’s apprehension.  * * *

A defendant’s views at trial about a prospective juror as conveyed to counsel are relevant to an ineffectiveness claim based on the joint decision to accept that juror. Here, where we do not know what was said between defendant and his counsel or how that conversation may have affected counsel’s impression of prospective juror number 10, the ineffective assistance claim cannot be resolved on direct appeal. People v Maffei, 2020 NY Slip Op 02680, CtApp 5-7-20

 

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THE PEOPLE DID NOT DEMONSTRATE THAT THE ANALYST WHO TESTIFIED ABOUT THE GENERATION OF THE DNA PROFILE HAD FIRST-HAND KNOWLEDGE OF THE PROCEDURE USED OR INDEPENDENTLY ANALYZED THE RAW DATA; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the defendant was deprived of the opportunity to cross-examine a witness who had first-hand knowledge of the generation of the DNA profile:

When confronted with testimonial DNA evidence at trial, a defendant is entitled to cross-examine “an analyst who witnessed, performed or supervised the generation of defendant’s DNA profile, or who used his or her independent analysis on the raw data” … . As the defendant contends, the People failed to establish that the analyst who testified in this case performed such a role in the testing or analysis of the testimonial DNA evidence introduced against him at trial … . Since the error was not harmless, the defendant is entitled to a new trial … . People v Butler, 2020 NY Slip Op 02676, Second Dept 5-6-20

 

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WHETHER TO INSTRUCT THE JURY ON THE EXTREME EMOTIONAL DISTURBANCE (EED) AFFIRMATIVE DEFENSE MUST BE DETERMINED BASED SOLELY UPON THE PEOPLE’S PROOF AT TRIAL; IT WAS (HARMLESS) ERROR FOR THE COURT TO MAKE THAT DETERMINATION PRIOR TO TRIAL (FOURTH DEPT).

The Fourth Department noted that the court committed (harmless) error when it ruled, prior to the trial, that the jury would not be instructed on the extreme emotional disturbance (EED) affirmative defense:

… [T]he court erred in determining prior to trial that it would not charge the jury on the affirmative defense of EED. A defendant may be entitled to a jury charge on the affirmative defense of EED based solely on the People’s proof … , and thus it was error for the court to make that ruling without any consideration of the People’s evidence. People v Taglianetti, 2020 NY Slip Op 02561, Fourth Dept 5-1-20

 

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DEFENDANT WAS GIVEN THE ERRONEOUS IMPRESSION THE WAIVER OF APPEAL FORECLOSED ALL APPELLATE RIGHTS; THE WAIVER WAS THEREFORE INVALID (FOURTH DEPT). ​

The Fourth Department determined defendant’s waiver of appeal was not valid because the court gave the erroneous impression all appellate rights were given up by the waiver:

County Court’s oral explanation of the waiver suggested that defendant was entirely ceding any ability to challenge his guilty plea on appeal, but such an “improper description of the scope of the appellate rights relinquished by the waiver is refuted by . . . precedent, whereby a defendant retains the right to appellate review of very selective fundamental issues, including the voluntariness of the plea” … . In addition, by further explaining that the cost of the plea bargain was that defendant would no longer have the right ordinarily afforded to other defendants to appeal to a higher court any decision the court had made, the court “mischaracterized the waiver of the right to appeal, portraying it in effect as an absolute bar’ to the taking of an appeal” … . The written waiver executed by defendant did not contain clarifying language; instead, it perpetuated the mischaracterization that the appeal waiver constituted an absolute bar to the taking of a first-tier direct appeal and even stated that the rights defendant was waiving included the “right to have an attorney appointed” if he could not afford one and the “right to submit a brief and argue before an appellate court issues relating to [his] sentence and conviction” … . Where, as here, the “trial court has utterly mischaracterized the nature of the right a defendant was being asked to cede,’ [this] [C]ourt cannot be certain that the defendant comprehended the nature of the waiver of appellate rights’ ” … . People v Youngs, 2020 NY Slip Op 02558, Fourth Dept 5-1-20

 

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DEFENDANT, FROM THE OUTSET, CLAIMED A MAN SHE HAD JUST MET AT A BAR WAS DRIVING HER CAR WHEN IT WENT OFF THE ROAD AND THEN FLED THE SCENE; THE DWI CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing the Driving While Intoxicated (DWI) convictions, determined the convictions were against the weight of the evidence. The defendant claimed from the outset that her car, which had gone off the road, was driven by a man she just met at a bar and who fled after the accident. There was no direct evidence defendant was the driver:

Defendant’s assertion that the car had been operated by an individual named Paul was not inconsistent with the evidence at trial. Although defendant’s request that the passing motorist not call 911 constituted evidence of consciousness of guilt, it is well settled that consciousness of guilt evidence is a “weak” form of evidence … . The failure of defendant to provide a more detailed description of Paul did little to disprove defendant’s hypothesis of innocence, given the general nature of the questions posed to her and their emphasis on contact information for Paul that defendant reasonably was not in a position to provide. Finally, the testimony of the investigator that the position of the driver’s seat in the car was inconsistent with the car being driven by someone who is 5 feet 10 inches tall, as opposed to defendant’s height of 5 feet 7 inches, may have been persuasive if there were other such circumstantial evidence, but no other evidence existed here. Giving the evidence the weight it should be accorded, therefore, we find that the People failed to establish, beyond a reasonable doubt, that defendant operated the car that had gone off the roadway … . People v Bradbury, 2020 NY Slip Op 02577, Fourth Dept 5-1-20

 

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THE GRAND JURY EVIDENCE OF TWO LACERATIONS ON THE VICTIM’S NECK, 3-4 AND 5-6 CENTIMETERS LONG, SUPPORTED THE TWO COUNTS OF FIRST DEGREE ASSAULT BASED UPON DISFIGUREMENT (FOURTH DEPT).

The Fourth Department, reversing County Court, over a two-justice dissent, determined the evidence presented to the Grand Jury was sufficient to support the assault first degree counts based upon disfigurement, i.e., two lacerations, 3-4 and 5-6 centimeters long, on the victim anterior neck:

… [T]he evidence before the grand jury included the testimony of the victim, the victim’s medical records, and photographs of the victim taken on the day of the incident. The evidence established that, as a result of the assault, the victim sustained “two significant lacerations to her anterior neck,” which were 3-4 and 5-6 centimeters long, respectively, with soft tissue defects and exposure of underlying subcutaneous fat. The lacerations required at least 10 sutures to close. We conclude that the grand jury could reasonably infer from the evidence that the sutured wounds resulted in permanent scars … . We further conclude that, when “viewed in context, considering [their] location on the body”… , the grand jury could reasonably infer that the scars would “make the victim’s appearance distressing or objectionable to a reasonable person observing her” … . People v Harwood, 2020 NY Slip Op 02594, Fourth Dept 5-1-20

 

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AFTER A TRAFFIC STOP AND A FOOT CHASE DEFENDANT WAS TAKEN INTO CUSTODY; NOTHING THE DEPUTY HAD SEEN AT THAT POINT PROVIDED PROBABLE CAUSE TO SEARCH THE DEFENDANT’S CAR; AFTER OPENING THE CAR DOOR AND SMELLING MARIJUANA THE DEPUTY CONDUCTED A WARRANTLESS SEARCH; THE DRUGS AND WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT)

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, determined the deputy did not have probable cause for a warrantless search of defendant’s car and the drugs and weapon found in the car should have been suppressed. The deputy initiated a traffic stop because defendant allegedly made a turn without signaling. The defendant told the deputy he could not roll down his window or open the driver side door. After making “furtive” movements inside the car, the defendant opened the passenger side door and fled. The deputy chased defendant and took him into custody. When asked why he ran, defendant said there was a warrant for his address. The deputy returned to defendant’s car, opened the door, smelled marijuana and searched the car. The Fourth Department found that nothing the deputy had seen prior to his opening the car door provided probable cause for the search:

Under the Fourth Amendment of the United States Constitution, “a search conducted without a warrant issued by an impartial Magistrate is per se unreasonable unless one of the established exceptions applies” … . “One such exception is the so-called automobile exception’, under which State actors may search a vehicle without a warrant when they have probable cause to believe that evidence or contraband will be found there” … . Applying our State Constitution, the Court of Appeals has held that when police want to search a vehicle at the time they arrest its occupant, “the police must… not only have probable cause to search the vehicle but . . . there must also be a nexus between the arrest and the probable cause to search” … . “[T]he requirement of a connection” between “the probable cause to search and the crime for which the arrest is being made” is “flexible” inasmuch as a court need not focus “solely on the crimes for which a defendant was formally arrested” … . “[T]he proper inquiry is simply whether the circumstances gave the officer probable cause to search the vehicle” … . When police officers stop a vehicle, they may have probable cause to search the vehicle under the automobile exception based “on grounds other than those that initially prompted [the officers] to stop the vehicle,” i.e., the probable cause may come to light after the stop… . …

Although defendant engaged in “furtive and suspicious activity” and his “pattern of behavior, viewed as a whole” was suspicious … , there was no direct nexus between the initial traffic stop for a traffic violation and the search of defendant’s vehicle. Furthermore, there was no direct nexus between the arrest of defendant and the search of his vehicle. Defendant made no statements to suggest that the vehicle contained contraband or evidence of a crime … , the deputy did not observe any contraband in plain view , the deputy did not find any contraband on defendant’s person when he took defendant into custody … , and it cannot be said that defendant’s “furtive movements” toward the center console lacked any innocent explanation or occurred under circumstances suggesting that criminal activity was afoot … . People v Johnson, 2020 NY Slip Op 02589, Fourth Dept 5-1-20

 

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