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ABSENCE OF APPROXIMATE TIME OF THE OFFENSE IN THE SUPERIOR COURT INFORMATION (SCI) WAS NOT JURISDICTIONAL AND WAS THEREFORE WAIVED BY THE GUILTY PLEA; ABSENCE OF DA’S SIGNATURE ON THE WAIVER OF INDICTMENT DID NOT INVALIDATE IT; CONSECUTIVE SENTENCES FOR CRIMES ARISING FROM ONE CONTINUOUS INCIDENT WERE NOT ILLEGAL (THIRD DEPT).

The Third Department determined: (1) the failure to include the approximate time of the offense in the Superior Court Information (SCI) was not a jurisdictional defect and the defect was waived by the guilty plea; (2) the district attorney’s failure to sign the waiver of indictment did not invalidate it; and (3) consecutive sentences for possession of a stolen car and damage caused to a police car (by the stolen car) were appropriate:

… [W]here, as here, the approximate time of the offenses is nonelemental and the defendant makes no argument that he or she lacked notice of the precise crimes for which he or she waived prosecution by indictment, the omission of such information is a nonjurisdictional defect, and, thus, any challenge with respect thereto is forfeited by a guilty plea … . We also note that, here, the approximate time of the offenses is readily ascertainable from the local court accusatory instruments … . …

… [T]he record contains a copy of defendant’s written waiver of indictment, which, although signed by defendant in open court in the presence of counsel, reveals a blank signature line intended for the District Attorney’s endorsement. However, the record also reveals that an order approving that waiver was entered by County Court thereafter (see CPL 195.30), and, therein, the court expressly found, among other things, that the waiver was consented to by the District Attorney (see CPL 195.10 [1] [c]). Under these circumstances, we view the absence of the District Attorney’s endorsement on the written waiver of indictment to be a technical violation of the statute that in no way infringed upon defendant’s right to indictment by a grand jury … . …

… [W]hile the … crimes occurred in the course of one continuous criminal incident, the charges arose from separate, distinct acts … . County Court’s imposition of consecutive sentences with respect to those crimes was therefore not illegal. People v Light, 2020 NY Slip Op 03148, Third Dept 6-4-20

 

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14-MONTH DELAY IN THE TRANSCRIPTION OF THE RECORD DID NOT DEPRIVE DEFENDANT OF HIS RIGHT TO APPEAL (THIRD DEPT).

The Third Department determined the 14-month stenographic delay, which prevented the perfection of defendant’s appeal until after his release, did not deprive him of due process of law. Defendant contested his resentence after pleading guilty to a probation violation:

Defendant argues that he was deprived of his right to appeal — and, thus, his right to due process — by approximately 14 months of stenographic delays prior to him obtaining the complete record in this matter so as to perfect his appeal … . He asserts that, because he has since been released from custody, and, thus, may no longer reasonably challenge the propriety of the resentence imposed — apparently the only issue taken with regard to the underlying proceedings — this Court should vacate, with prejudice, Supreme Court’s finding that he violated his probation and dismiss the associated declaration of delinquency … .

Despite the unfortunate appellate delay, defendant has failed to establish that it resulted in prejudice so as to warrant the summary remedy he seeks … ; his sole argument regarding his resentence would have been equally unpersuasive had it been before us on any earlier date. * * * Without some showing of how he has been prejudiced by this singular claim being rendered moot, we cannot conclude that defendant suffered a deprivation of due process by the delays alleged … . People v McCray, 2020 NY Slip Op 03154, Third Dept 6-4-20

 

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HABEAS CORPUS PETITION ORDERING THE RELEASE OF A PRISONER BECAUSE OF THE RISK POSED BY COVID-19 SHOULD NOT HAVE BEEN GRANTED; THE PETITION DID NOT DEMONSTRATE THE PRISON OFFICIALS WERE DELIBERATELY INDIFFERENT TO THE RISK (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Devine, reversing Supreme Court, determined the habeas corpus petition seeking the release from prison of a 68-year-old prisoner because of the danger of contracting COVID-19 should not have been granted. At the time the appeal was heard, the inmate, Muntaqim, was hospitalized with COVID-19. The appeal was heard as an exception to the mootness doctrine because the situation is likely to recur. Although the petition established Muntaqim was incarcerated under conditions which could cause him serious harm, the petition did not demonstrate the prison personnel were deliberately indifferent to the risk. The prison respondents outlined the steps taken and the prison to reduce the spread of the disease:

Petitioner arguably established that Muntaqim was “incarcerated under conditions posing a substantial risk of serious harm” … . Annexed to the petition is a letter from a physician who discussed Muntaqim’s medical condition and opined that he was at extreme risk of “a serious and possible fatal outcome if infected with the novel coronavirus” responsible for causing COVID-19, as well as a letter from a group of physicians who explained that the novel coronavirus is quite infectious and that serious outbreaks in prisons were inevitable given the close contact between individuals inherent to the prison setting. … What petitioner failed to demonstrate, however, was deliberate indifference on the part of prison officials. Petitioner provided nothing from anyone with firsthand knowledge — including Muntaqim, who neither verified the petition nor submitted an affidavit in support of it — as to what was being done to combat the spread of the novel coronavirus at SCF [Sullivan Correctional Facility] or to protect inmates at high risk from COVID-19. In contrast, respondents came forward with the affidavit of respondent Superintendent of SCF, who detailed the steps that had been taken up to that point to prevent the introduction of the novel coronavirus into the facility and reduce the risks of potential transmission. … Supreme Court determined that DOCCS had “done nothing wrong” in its response to the burgeoning threat. Petitioner has not demonstrated the subjective element of deliberate indifference required to establish an Eighth Amendment violation. People ex rel. Carroll v Keyser, 2020 NY Slip Op 03169, Third Dept 6-4-20

 

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CROSS-EXAMINATION OF A POLICE OFFICER ABOUT MISCONDUCT IN A CIVIL SUIT SHOULD HAVE BEEN ALLOWED; CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined cross-examination of a police officer about misconduct in a civil suit should have been allowed:

The trial court erred in denying defendant’s request to cross-examine a police Sergeant regarding allegations of misconduct in a civil lawsuit in which it was claimed that this police Sergeant and a police detective arrested the plaintiff without suspicion of criminality and lodged false charges against him … . The civil complaint contained allegations of falsification specific to this officer (and another officer), which bore on his credibility at the trial.

Contrary to the People’s allegations, the error was not harmless. The police sergeant’s credibility was critical because he was the only eyewitness to the crime … . Although the sergeant’s testimony was corroborated by other evidence, none of this corroborating evidence was sufficient, on its own, to prove defendant’s guilt, as all of it relied on the sergeant’s testimony for context. ​People v Conner, 2020 NY Slip Op 03200, First Dept 6-4-20

 

ALTHOUGH THE INDICTMENT CHARGED THE DEFENDANT WITH THE INTENTIONAL KILLING OF SCOTT WRIGHT, THE JURY WAS TOLD IN ANSWER TO ITS QUESTION THAT IT COULD CONVICT THE DEFENDANT IF THEY FOUND DEFENDANT INTENDED TO KILL THE NEXT PERSON WHO CAME THROUGH THE DOOR, IRRESPECTIVE OF THE IDENTITY OF THAT PERSON; THE JURY INSTRUCTION WAS DEEMED PROPER (THIRD DEPT).

The Third Department, affirming defendant’s murder conviction, determined the People were not required to prove defendant intended to kill the victim named in the indictment (Wright ). Although the indictment charged defendant with the intentional murder of Wright, the jury wanted to know if they could convict if they concluded defendant simply intended to kill the next person who came through the door (who happened to be Wright). The judge answered the jury’s question in the affirmative and the Third Department held the jury was properly instructed:

As defendant argues, “a jury charge may not constructively amend an indictment by varying the theory of the prosecution” … . “However, not every fact mentioned in an indictment is essential to establish the defendant’s guilt of the crime charged, and thus it is not necessary in every case that the People prove all acts alleged in the indictment when the remaining acts alleged are sufficient to sustain a conviction” … . Significantly, the identity of the victim is not one of the elements of the crime of murder in the second degree … . Here, the People chose to go beyond the elements that they were required to prove to obtain a conviction both by asserting in the indictment that defendant specifically intended to shoot Wright and by making that argument at trial. Nonetheless, the jury was not required to accept this part of the People’s theory to convict defendant of murder in the second degree, so long as it found that the People had proven the elements of that crime beyond a reasonable doubt. Accordingly, we find that the instruction did not alter the prosecution’s theory … . …

… [W]e reject defendant’s contention that County Court’s supplemental instruction prejudiced defendant by introducing the new legal principle of mistake of fact. As defendant argues, the People made no arguments based on that principle during the trial. However, defendant’s theory of defense throughout the trial was that the gun went off accidentally and that defendant did not intend to shoot Wright or anyone else. This defense of accident would not have been altered or affected if the question whether defendant mistook Wright for someone else had been raised earlier; as previously noted, the identity of the victim is not an element of the crime of murder in the second degree. People v Lee, 2020 NY Slip Op 03049, Third Dept 5-28-20

 

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BEST EVIDENCE RULE APPLIES TO VIDEO EVIDENCE AS WELL AS WRITINGS; ERROR IN FAILING TO EXCLUDE THE VIDEO EVIDENCE WAS HARMLESS HOWEVER (THIRD DEPT).

The Third Department, disagreeing with County Court, determined the best evidence rule applies to video evidence. The error was deemed harmless however:

Defendant asserts that, under the best evidence rule, the cell phone video recording of surveillance video that depicted the exterior of the bar … , as well as the observations of the detective who viewed and recorded this cell phone video, should have been precluded. Defendant further asserts that the detective should not have been allowed to testify about what he saw on a surveillance video showing the inside of the bar. In overruling defendant’s objection, County Court noted that the best evidence rule applied only to writings. Contrary to the court’s reasoning, however, the best evidence rule can apply to videos (see e.g. People v Cyrus, 48 AD3d 150, 159 [2007] …). Furthermore, the People did not call the bar manager or a person who installed the video equipment to authenticate the surveillance video … . Accordingly, the court erred in overruling defendant’s objection to this evidence. People v Watson, 2020 NY Slip Op 03050, Third Dept 5-28-20

 

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POSSESSION OF SYNTHETIC CANNABINOIDS IS PUNISHABLE BY A FINE AND JAIL TIME UNDER THE SANITARY CODE; THEREFORE A SEARCH WARRANT AUTHORIZING A SEARCH FOR SYNTHETIC CANNABINOIDS IS VALID; THE WAIVER OF APPEAL HERE WAS INVALID (THIRD DEPT).

The Third Department determined defendant’s waiver of appeal was invalid, but went on to find that the search warrant and search were valid and proper. The defendant argued that the search for synthetic cannabinoids not authorized because that substance is not encompassed by the Penal Law. However, the Sanitary Code makes possession of the substance a violation which can result in a fine and a jail sentence:

… [T]he appeal waiver was invalid because County Court failed to advise defendant that the right to appeal is separate and distinct from the rights automatically forfeited by pleading guilty … , and also because the court increased the sentence, but failed to inquire into whether defendant wished to withdraw his consent to the appeal waiver … . …

A search warrant application must include “[a] statement that there is reasonable cause to believe that property of a kind or character described in [CPL] 690.10 may be found in or upon a designated or described place” (CPL 690.35 [3] [b]). Personal property that “[c]onstitutes evidence or tends to demonstrate that an offense was committed in this state” is subject to seizure (CPL 690.10 [4]). “Offense” is defined as “conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state” (Penal Law § 10.00 [1]). Further, a “[v]iolation” is defined as “an offense . . . for which a sentence to a term of imprisonment in excess of [15] days cannot be imposed” (Penal Law § 10.00 [3]).

Defendant is correct in asserting that the Penal Law prohibitions against the possession of controlled substances and marihuana do not specifically include synthetic cannabinoid. However, the Sanitary Code makes it “unlawful for any individual . . . to possess, manufacture, distribute, sell or offer to sell any synthetic phenethylamine or synthetic cannabinoid,” with exceptions not applicable here (10 NYCRR 9-1.2). Significantly, “[t]he provisions of the [S]anitary [C]ode shall have the force and effect of law and the non-compliance or non-conformance with any provision thereof shall constitute a violation punishable on conviction for a first offense by a fine not exceeding [$250] or by imprisonment . . . not exceeding [15] days, or both” (Public Health Law § 229 …). It follows that, by definition, a search warrant may be issued for the alleged possession of synthetic cannabinoids … . People v Morehouse, 2020 NY Slip Op 03048, Thrid Dept 5-28-20

 

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DEFENDANT WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE COUNSEL ARGUED DEFENDANT’S PRO SE MOTION TO SET ASIDE THE VERDICT WAS NOT VIABLE (SECOND DEPT). ​

The Second Department, remitting the matter for a determination of defendant’s CPL 330.30 motion to set aside the verdict, determined defendant’s attorney took a position adverse to defendant by arguing defendant’s pro se motion was not viable:

Prior to sentencing, the defendant moved, pro se, to set aside the verdict pursuant to CPL 330.30. At the sentencing hearing, defense counsel stated that the defendant asked him to adopt the motion but that defense counsel did not believe that it was “viable.” He added that, in his opinion, the motion argued matters that were not “for the purview of the [c]ourt.” The Supreme Court declined to review the motion.

As the People concede, defense counsel, by taking a position adverse to that of his client on the motion to set aside the verdict pursuant to CPL 330.30, deprived the defendant of the effective assistance of counsel … . People v Sonds, 2020 NY Slip Op 03036, Second Dept 5-27-20

 

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COUNTY COURT’S POST-JUDGMENT DENIAL OF DEFENDANT’S SUPPRESSION MOTION, AFTER A HEARING HELD PURSUANT TO THE SECOND CIRCUIT’S ORDER RE: DEFENDANT’S PETITION FOR A WRIT OF HABEAS CORPUS, WAS AN INTERMEDIATE ORDER WHICH IS NOT APPEALABLE; MATTER REMITTED TO ALLOW COUNTY COURT TO AMEND THE JUDGMENT OF CONVICTION TO REFLECT THE RECENT DENIAL OF THE SUPPRESSION MOTION; THE AMENDED JUDGMENT OF CONVICTION WOULD THEN BE APPEALABLE (THIRD DEPT).

The Third Department determined the post-judgment order denying defendant’s motion to suppress his statements was an intermediate order which was not appealable. The Second Circuit, pursuant to defendant’s petition for a writ of habeas corpus, ordered defendant’s release unless a state court adjudicated the voluntariness of his confession (made in 1986 when defendant was 16). County Court held a new suppression hearing and issued the order denying suppression. The Third Department sent the matter back to allow the amendment of the judgment of conviction to reflect the recent denial of the suppression motion, which would then be appealable:

Although not raised by the parties, we must first address the threshold issue of the appealability of County Court’s order. Indeed, an order denying a defendant’s suppression motion is an unreviewable intermediate order (see CPL 450.10). Ordinarily, in the course of a criminal proceeding, suppression hearings occur prior to a judgment of conviction and are reviewed incident to the direct appeal from that judgment. Nevertheless, there are cases, including the instant appeal, where a suppression hearing occurred after entry of a judgment of conviction … . In each of these cases, the trial court was specifically instructed that, if the defendant did not prevail in the suppression hearing, the judgment of conviction should be amended to reflect that fact … . Here, however, the Second Circuit did not advise County Court to take this step … , and there is no evidence in the record that an amended judgement of conviction was entered after the People prevailed at the suppression hearing.

Accordingly, because an amended judgment of conviction has not been entered, we must dismiss this appeal. This harsh outcome appears at odds with the federal habeas corpus remand, which, in our view, was intended to permit review of the suppression hearing until finally decided by the court of last resort. However, this dismissal provides County Court the opportunity to amend the judgment of conviction to reflect the denial of the suppression motion, and defendant could then appeal as of right from the amended judgment of conviction (see CPL 450.10 [1]). People v Dearstyne, 2020 NY Slip Op 02951, Third Dept 5-21-20

 

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DEFENSE COUNSEL’S REMARKS ABOUT DEFENDANT’S PRO SE MOTION TO WITHDRAW HER GUILTY PLEA CREATED A CONFLICT OF INTEREST REQUIRING THE ASSIGNMENT OF NEW COUNSEL; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined the sentencing court should have assigned new counsel to defendant based upon defense counsel’s remarks about defendant’s pro se motion to withdraw her guilty plea, which created a conflict of interest. The dissenters argued that, before defense made the remarks evincing a conflict of interest, the sentencing judge had denied defendant’s pro se motion to withdraw her plea without prejudice to retain counsel and make a new motion:

After Supreme Court agreed to adjourn sentencing, without having decided defendant’s pro se motion, defense counsel requested that he be permitted to put “a couple [of] things on the record.” Upon receiving the court’s permission, defense counsel proceeded to make several detrimental statements that were adverse and prejudicial to defendant. At this point, a conflict of interest arose between defendant and defense counsel, and Supreme Court was obligated to relieve defense counsel of his representation of defendant … . Supreme Court, however, did not acknowledge that a conflict of interest had arisen or inform defendant that she was entitled to the assignment of new counsel, should she opt to avail herself of that option.

When defendant subsequently appeared in Supreme Court for sentencing, she was accompanied by her original assigned counsel.Once again, Supreme Court did not raise or address the conflict of interest that had previously arisen between defendant and defense counsel, assign new counsel or advise defendant that she was entitled to the assignment of new counsel. Defense counsel requested that defendant be granted an additional adjournment, … stating that defendant had retained a certain named attorney, but that “[t]he funds just [had not] reached him yet.” Without having afforded defendant an opportunity to confer with new counsel regarding her motion to withdraw her plea or having ruled on that motion, Supreme Court denied the adjournment request and proceeded to sentencing. By failing to relieve defense counsel of his representation of defendant once the conflict of interest arose and to either assign new counsel or permit defendant a sufficient opportunity to retain alternate counsel to represent her, Supreme Court deprived defendant of her right to the effective assistance of counsel in connection with her motion to withdraw her plea … . People v Maldonado, 2020 NY Slip Op 02953, Third Dept 5-21-20

 

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