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THE EVIDENCE SUBMITTED TO THE GRAND JURY IN THIS DRUNK-DRIVING-ACCIDENT CASE SUPPORTED THE TWO COUNTS OF DEPRAVED INDIFFERENCE ASSAULT STEMMING FROM INJURIES SUFFERED BY THE TWO PASSENGERS; SUPREME COURT SHOULD NOT HAVE DISMISSED THOSE COUNTS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the evidence submitted to the Grand Jury supported the depraved indifference assault counts stemming from injuries suffered by the two passenger in a drunk driving accident after a police pursuit:

The … accident reconstruction revealed that defendant was driving 119 miles an hour five seconds before the accident, then slammed on his brakes and steered hard to the right, hurtling into the parking lot and striking a concrete barrier at approximately 60 miles per hour. * * *

Drunk driving cases do not ordinarily lend themselves to a finding of depraved indifference, nor does “every vehicular police chase resulting in death [or serious injury] . . . take place under circumstances evincing” it … . Unlike in cases where a defendant attempted to avoid harming others in the course of a chase … , however, the intoxicated defendant here was warned by one of his passengers that he should slow down and “was well aware that [he] was endangering [their] lives” by flouting traffic laws and fleeing a police officer at ludicrous speeds on local roads … . Moreover, the same passenger testified that defendant knew that the parking lot was a shortcut to another street and that he suddenly “turned into” it when she mentioned seeing a police cruiser. The grand jury could infer from this proof that defendant did not care about the welfare of his passengers and that he lost control of the vehicle not in an unsuccessful effort to navigate a bend in the road, but rather in a near-suicidal gambit to escape police by making an abrupt turn at high speed and trying to traverse the parking lot. It follows from those inferences that defendant “appreciated that he . . . was engaging in conduct that presented a grave risk of death and totally disregarded that risk, with catastrophic consequences” … . Although innocent inferences could also be drawn from the evidence presented, legally sufficient proof nevertheless existed for the grand jury’s finding that defendant exhibited depraved indifference toward his passengers and, thus, Supreme Court erred in dismissing the two counts of assault in the first degree … . People v Edwards, 2020 NY Slip Op 02503, Third Dept 4-30-20

 

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THE MOTION COURT APPLIED THE WRONG CRITERIA WHEN RULING ON WHETHER THE DEFENDANT WAS PREJUDICED BY THE ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL; DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON DEFENSE COUNSEL’S ALLEGED FAILURE TO INFORM HIM OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING; ASSESSING DEFENDANT’S CHANCES AT TRIAL IS NOT THE PROPER ANALYSIS (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Renwick, over a dissent, determined the motion court applied the wrong criteria for assessing whether the defendant was prejudiced by the alleged ineffective assistance of counsel. Defendant moved to vacate his conviction, alleging defense counsel did not inform him of the deportation consequences of his guilty plea. The defendant’s chance of success at trial is irrelevant to whether defendant was entitled to a hearing. The First Department succinctly summarized the issues and the ruling as follows:

We find that the trial court improperly denied the motion without a hearing pursuant to CPL 440.30(4)(d) (i) & (ii). This section permits a court to reach the merits of a postjudgment motion without a hearing to dismiss frivolous claims … . In the case at bar, however, as the dissent concedes, there is independent support for defendant’s assertion that his plea was induced by erroneous advice given by his trial counsel, namely that his felony guilty plea would not subject defendant to mandatory deportation. Nevertheless, the dissent argues that summary denial of the CPL 440.10 motion is still proper, because defendant’s allegations did not raise a reasonable possibility that he was prejudiced by the misadvice. We disagree. Like the court below, the dissent applies the wrong prejudice standard, by focusing exclusively on defendant’s alleged lack of a viable defense and the likelihood he would have been convicted after trial, and disregards the particular circumstances of defendant’s desire to remain in the United States. The dissent’s reasoning is contradicted by the recent United States Supreme Court holding in Lee v United States (582 US __, 137 S Ct 1958, 1966 [2017]), which rejects any per se rule that prevents a defendant from establishing prejudice by an attorney’s erroneous advice simply because the defendant may not have a strong defense. Instead, as Lee v United States mandates, even if the chance of success at trial is low, the prejudice inquiry should focus on the defendant’s decision-making and whet her it was reasonable for one in defendant’s position, facing mandatory deportation, to choose to take a shot a trial. People v Lantigua, 2020 NY Slip Op 02557, First Dept 4-30-20

 

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THE INFORMATION SUFFICIENTLY ALLEGED THE ELEMENTS OF OFFICIAL MISCONDUCT; THE ‘OBTAIN A BENEFIT’ ELEMENT OF THE OFFENSE CAN BE INFERRED FROM THE OTHER ALLEGATIONS (CT APP).

The Court of Appeals determined the information charging defendant with official misconduct in violation of Penal Law section 195 was not jurisdictionally defective because the “obtain a benefit” element of the offense could be inferred from the allegations. The defendant, an alcohol and substance abuse treatment program aide at a prison, was charged with the unauthorized provision of prison documents concerning an incident at the prison to an inmate. The allegations were sufficient to infer that the defendant intended that providing the documents benefited the inmates involved:

With respect to the third element—that defendant must act with the intent to obtain a benefit or deprive another of a benefit—defendant’s intent may be reasonably inferred from her conduct and the surrounding circumstances … . …[T]he information, with defendant’s statement attached as a supporting deposition, sufficiently alleged that defendant disclosed information to an inmate that the inmate was not authorized to have, and that defendant knew that this disclosure was unauthorized. From those allegations, coupled with defendant’s admissions in her statement regarding inappropriate contact with and favors conducted for inmates involved in the unusual incident and the disclosure, one can reasonably infer that defendant committed the unauthorized disclosure with the intent to benefit herself or the inmates involved. Notably.”benefit” is defined as “any gain or advantage to the beneficiary and includes any gain or advantage to a third person pursuant to the desire or consent of the beneficiary” (Penal Law § 10.00 [17]). In this case, the People were not required to specify in the information whether defendant intended to benefit herself or the inmates, because either or both would satisfy this element of the statute and both theories are supported by defendant’s statement to police … . People v Middleton, 2020 NY Slip Op 02530, CtApp 4-30-20

 

THE OMISSION OF THE TIME AND PLACE OF THE OFFENSE FROM THE SUPERIOR COURT INFORMATION WAS NOT A JURISDICTIONAL DEFECT AND ANY ERRORS WERE FORFEITED BY THE GUILTY PLEA (THIRD DEPT).

The Third Department determined that the failure to include the time and place of the crime in the superior court information (SCI) was not a jurisdictional defect and any errors were forfeited by the guilty plea:

… [D]efendant contends that the waiver of indictment and SCI omitted essential information required by CPL 195.20, rendering the waiver of indictment invalid and the SCI jurisdictionally defective. In support of this claim, defendant points to the fact that neither the waiver of indictment nor the SCI sets forth the approximate time of the crime, and the waiver of indictment also failed to set forth the place where it occurred. While we acknowledge these deficiencies, we do not find that they mandate dismissal of the SCI and reversal of the judgment of conviction given our recent decisions in People v Shindler (179 AD3d 1306, 1307 [2020]) and People v Elric YY., (179 AD3d 1304, 1305 [2020]), and the Court of Appeals’ decision in People v Lang (___ NY3d ___, ___, 2019 NY Slip Op 08545, *7-9 [2019]). As is relevant here, the Court of Appeals found in Lang that the date, approximate time and place of the crime in the waiver of indictment constituted non-elemental factual information, the omission of which did not amount to a jurisdictional defect (see People v Lang, 2020 NY Slip Op 08545 at *8-9). In view of this decision, we abandoned the standard enunciated in People v Busch-Scardino (166 AD3d 1314 [2018]) and concluded in Shindler and Elric YY. that the omission of the approximate time and place was not a jurisdictional defect rendering the waiver of indictment invalid.

Here, defendant was provided adequate notice of the crime charged based upon a reading of the waiver of indictment and the SCI together … , as well as the felony complaint, which set forth in detail the nature of the crime and the approximate time and place where it occurred … . Significantly, defendant did not raise any objection to the sufficiency of the waiver of indictment or the SCI before County Court, or demand a bill of particulars. Therefore, the subject omissions are nonjurisdictional defects that were forfeited by defendant’s guilty plea … .People v Morgan-Smith, 2020 NY Slip Op 02501, Third Dept 4-30-20

 

CPL 300.40 (3) (b), WHICH REQUIRES DISMISSAL OF INCLUSORY CONCURRENT COUNTS, APPLIES ONLY TO VERDICTS AFTER TRIAL, NOT TO GUILTY PLEAS (THIRD DEPT).

The Third Department determined that Criminal Procedure Law 300.40 (3) (b), which requires dismissal of inclusory concurrent counts, applies only to verdicts after trial and not to cases resolved by guilty plea. Defendant confessed to killing a mother and daughter and he was charged with two counts of first degree murder and two counts of second degree murder. He pled guilty to the two counts of second degree murder. On appeal defendant argued the second degree murder counts should have been dismissed as inclusory concurrent counts of first degree murder:

CPL 300.40 (3) (b) provides, with respect to inclusory concurrent counts, that “[a] verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted” … . Even assuming, without deciding, that counts 3 and 4 of the indictment indeed are inclusory concurrent counts of counts 1 and 2, defendant’s reliance upon both the statute and the cases applying it … is misplaced, as CPL article 300 “‘deals only with trials, and has no application to convictions obtained on a plea of guilty'” … . Having elected to plead guilty to the entire indictment, as was defendant’s right (see CPL 220.10 [2]), he cannot now avail himself of the provisions of CPL 300.40 (3) (b) … . People v Redden, 2020 NY Slip Op 02502, Third Dept 4-30-20

 

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ADMISSION OF A HEARSAY STATEMENT BY A BYSTANDER WHO TOLD A POLICE OFFICER DEFENDANT HAD RUN INTO A HOUSE WAS (HARMLESS) ERROR (FOURTH DEPT).

The Fourth Department determined it was (harmless) error to admit the hearsay statement attributed to a bystander who told a police officer the defendant had run into a house after a car chase:

Defendant contends that County Court erred in allowing inadmissible hearsay testimony when the police officer was allowed to testify at trial that the bystander told him that the fleeing suspect ran into the house. We agree. The statement of the bystander was inadmissible hearsay because it was admitted for the truth of the matters asserted therein … . Indeed, the import of the bystander’s statement was to confirm that the suspect had indeed fled into the house, and thereby confirm that someone inside the house, i.e., defendant, perpetrated the crime. Nevertheless, we conclude that the error was harmless because the evidence of defendant’s guilt is overwhelming and there is no significant probability that defendant would have been acquitted but for the admission of the hearsay testimony … . Defendant was identified by the victim and the other eyewitness as a perpetrator of the robbery, which had occurred in broad daylight, close in time to the show-up identification procedure. Those identifications of defendant were corroborated by testimony of the police officer, who observed the suspect flee from the stolen vehicle toward the house where defendant was apprehended. Moreover, the evidence strongly supported an inference that defendant was not in the house for innocent purposes because he did not live at that address and had tried to conceal his identification in an uninhabited part of the house. People v Harrington, 2020 NY Slip Op 02399, Fourth Dept 4-24-20

 

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CPL 330.30 MOTION ALLEGING JUROR MISCONDUCT DURING DELIBERATIONS, I.E. CONDUCTING A REENACTMENT, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the Criminal Procedure Law 330.30 motion alleging misconduct during jury deliberations should not have been denied without a hearing. The defendant was charged with menacing a police officer and whether the defendant heard the announcement that the people knocking on his door were deputy sheriffs was a critical issue. Defense counsel learned after the trial that the jurors had conducted a reenactment in the jury room to determine whether defendant heard the sheriffs:

… [I]n support of the motion, defendant submitted the affirmation of his attorney. Defendant’s attorney alleged that, during post-verdict discussions with the jury, he learned that the jurors had attempted during their deliberations to determine whether defendant was aware that the people knocking at his door were sheriff’s deputies by using the bathroom door in the deliberation room to reenact the moment when one of the deputies knocked on defendant’s door and announced the deputies’ presence. The court did not conduct a hearing and instead summarily denied the motion, ruling that, although the alleged jury reenactment constituted a conscious, contrived experiment that placed before the jury evidence not introduced at trial, the experiment was not directly material to any critical point at issue. That was error.

As defendant correctly contends, whether he could hear the announcement by the deputy was directly material to a critical point at issue in the trial—indeed, to an element of menacing a police officer—i.e., whether defendant “knew or reasonably should have known” that the people at his door were sheriff’s deputies (Penal Law § 120.18 …). We conclude under the circumstances of this case that a hearing is required to ascertain whether and in what manner the alleged reenactment occurred, and whether such conduct “created a substantial risk of prejudice to the rights of the defendant by coloring the views of the . . . jur[y]” … . People v Newman, 2020 NY Slip Op 02449, Fourth Dept 4-24-20

 

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DEFENDANT WAS CONVICTED OF STABBING THE VICTIM AT A CROWDED PARTY BUT NO ONE SAW DEFENDANT WITH A KNIFE; DEFENSE REQUEST FOR THE CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder conviction, determined that the defense request fot eh circumstantial evidence jury instruction should have been granted. It was alleged defendant stabbed the victim but no one saw the defendant with a knife:

The victim was stabbed five times at a crowded house party where there were multiple ongoing fights, and the evidence established that the victim was involved in physical altercations with at least two other partygoers. One of the wounds was almost five inches deep, meaning that the blade of the knife must have been at least five inches long. None of the witnesses who observed defendant fighting with the victim observed anything in defendant’s hand during the altercation, and no blood was discovered in the room in which defendant and the victim engaged in their altercation. All of the evidence at trial required the jury to infer that defendant was the perpetrator who had the knife and that he used that knife to stab the victim. We thus conclude that a circumstantial evidence instruction was warranted … . Contrary to the People’s contention, this is not “the exceptional case where the failure to give the circumstantial evidence charge was harmless error” … . People v Swem, 2020 NY Slip Op 02435, Fourth Dept 4-24-20

 

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HEARING REQUIRED TO DETERMINE THE AMOUNT OF RESTITUTION AND TO WHOM RESTITUTION SHOULD BE PAID; UNPRESERVED ERRORS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department determined the record did not include sufficient evidence to support the restitution order and remitted the matter for a hearing:

Defendant’s contention in her main brief that the court erred in ordering her to pay restitution without a hearing is not preserved for our review inasmuch as defendant “did not request a hearing to determine the [proper amount of restitution] or otherwise challenge the amount of the restitution order during the sentencing proceeding” … . We nevertheless exercise our power to review that contention as a matter of discretion in the interest of justice … . Moreover, even assuming, arguendo, that defendant’s further challenge to the court’s purported failure to direct restitution to an appropriate person or entity… required preservation under these circumstances … , we likewise exercise our power to reach that unpreserved contention as a matter of discretion in the interest of justice … . As the People correctly concede, the record does not contain sufficient evidence to establish the amount of restitution imposed, nor does it establish the recipient of the restitution … . We therefore modify the judgment by vacating that part of the sentence ordering restitution, and we remit the matter to County Court for a hearing to determine restitution in compliance with Penal Law § 60.27. People v Meyers, 2020 NY Slip Op 02419, Fourth Dept 4-24-20

 

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ALTHOUGH PETITIONER WAS ADJUDICATED A LEVEL THREE SEX OFFENDER AFTER HIS RELEASE FROM PRISON ON A PRIOR RAPE CONVICTION, HE WAS NOT SUBJECT TO THE RESIDENCY REQUIREMENTS OF THE SEXUAL ASSAULT REFORM ACT AFTER HIS RELEASE FROM PRISON ON A SUBSEQUENT ROBBERY/BURGLARY CONVICTION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner, who was adjudicated a level three sex offender when released after a prior rape conviction, was not subject to the residential restrictions under the Sexual Assault Reform Act (Executive Law § 259-c (14)) upon release after his subsequent robbery/burglary convictions and incarceration:

In 2007, petitioner was convicted of robbery in the second degree and burglary in the third degree, resulting in a sentence of concurrent prison terms, the maximum of which was 13 years in prison, followed by five years of postrelease supervision. In 2017, petitioner reached the conditional release date of that sentence and the Board of Parole determined that, because he was a risk level three sex offender as a result of his 1989 conviction, he was subject to the provisions of the Sexual Assault Reform Act as set forth in Executive Law § 259-c (14) (L 2000, ch 1, as amended by L 2005, ch 544), which, as relevant here, prohibits him from residing within 1,000 feet of school grounds. Petitioner failed to offer any proposed residence that would permit him to comply with that condition, other than the New York City homeless shelter system, which the Department of Corrections and Community Supervision regarded as inappropriate. As such, petitioner was maintained in the custody of the Department of Corrections and Community Supervision. …

For the reasons stated in People ex rel. Negron v Superintendent, Woodbourne Corr. Facility (170 AD3d 12 [2019]), we agree with petitioner and find that he is not subject to the conditions of Executive Law § 259-c (14) (see Matter of Cajigas v Stanford, 169 AD3d 1168 [2019] … . Matter of Green v LaClair, 2020 NY Slip Op 02338, Third Dept 4-23-20

 

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