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PRIOR CONVICTION OF CRIMINAL POSSESSION OF A WEAPON DID NOT DISQUALIFY DEFENDANT FROM ELIGIBILITY FOR YOUTHFUL OFFENDER STATUS; IT IS NOT AN ‘ARMED FELONY’ (FIRST DEPT).

The First Department, vacating defendant’s sentence, determined the prior conviction of criminal possession of a weapon was not an “armed felony” did not render defendant ineligible for youthful offender status:

Defendant’s prior conviction of criminal possession of a weapon in the second degree, for “possess[ing] a loaded firearm” (Penal Law § 265.03[1][b]) was not an “armed felony” within the meaning of CPL 720.10(2)(a). As relevant here, CPL 1.20, which CPL 720.10(2)(a) incorporates, defines “armed felony” as “any violent felony offense defined in section 70.02 of the penal law that includes as an element . . . possession . . . of a deadly weapon, if the weapon is a loaded weapon from which a shot, readily capable of producing death or other serious physical injury may be discharged” … . The statutory definition of “loaded firearm” explicitly does not require that the firearm be “actually” loaded, because it includes within the definition a “firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm” (Penal Law § 265.00[15]). In contrast, the definition of “deadly weapon” contains no proviso indicating that an actually unloaded weapon is deemed “loaded,” and the definition is therefore met, where usable ammunition is readily available. Accordingly, “in order to be a deadly weapon, a gun must actually be loaded, as that term is commonly understood” … . Since a “loaded firearm” is therefore not always a “deadly weapon,” the crime to which defendant pleaded guilty did not “include[] as an element . . . possession . . . of a deadly weapon” (CPL 1.20[41][a]), and the court should not have found that defendant’s conviction rendered him presumptively ineligible. People v Ochoa, 2020 NY Slip Op 02156, First Dept 4-2-20

 

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BECAUSE THE DEFENDANT WAS MADE AWARE OF THE POSSIBILITY OF DEPORTATION MONTHS BEFORE HE PLED GUILTY, HIS ARGUMENT THAT THE TRIAL JUDGE DID NOT INFORM HIM OF THE IMMIGRATION CONSEQUENCES OF HIS PLEA WAS SUBJECT TO THE PRESERVATION REQUIREMENT; THE FAILURE TO PRESERVE THE ERROR PRECLUDED APPEAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a three-judge concurrence, determined defendant’s argument that the trial judge failed to inform him of the deportation consequences of his plea to a felony was subject to the preservation requirement. The defendant’s failure to preserve the error precluded appeal:

“[D]ue process compels a trial court to apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony” … . However, before we may consider whether a trial court fulfilled that obligation, we must determine whether a defendant preserved the claim as a matter of law for our review or whether an exception to the preservation doctrine applies … . Here, service on defendant, in open court and months before the plea proceedings, of a “Notice of Immigration Consequences” form provided him with a reasonable opportunity to object to the plea court’s failure to advise him of the potential deportation consequences of his plea, making the narrow exception to the preservation doctrine unavailable to him … . * * *

“Generally, in order to preserve a claim that a guilty plea is invalid, a defendant must move to withdraw the plea on the same grounds subsequently alleged on appeal or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10” (Peque, 22 NY3d at 182). While reiterating this rule in Peque, we also acknowledged that “where a defendant has no practical ability to object to an error in a plea allocution which is clear from the face of the record, preservation is not required” (id.). This exception to the preservation requirement, however, remains narrow … . * * *

The very first sentence of the Notice explicitly told defendant that “a plea of guilty to any offense” could “subject[] [him] to a risk that adverse consequences w[ould] be imposed on [him] by the United States immigration authorities, including, but not limited to, removal from the United States . . . .” It further noted that, among other things, a conviction for “burglary . . . or any other theft-related offense . . . for which a sentence of one year or more is imposed” would be deportable.

Those unambiguous statements provided defendant with sufficient notice of possible immigration consequences, including deportation, of his conviction, giving him “a reasonable opportunity” to express concerns to the court — during either his plea or at sentencing — regarding those consequences … . People v Delorbe, 2020 NY Slip Op 02126, CtApp 3-31-20

 

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A FRYE HEARING SHOULD HAVE BEEN HELD TO DETERMINE THE ADMISSIBILITY OF THE LOW COPY NUMBER (LCN) DNA EVIDENCE AND THE EFFICACY OF A FORENSIC STATISTICAL TOOL (FST); THE ERROR WAS HARMLESS HOWEVER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a three-judge concurrence, ruled a Frye hearing should have been held to the determine admissibility of low copy number (LCN) DNA evidence and the efficacy of the forensic statistical tool (FST) used to conduct the statistical analysis. The abuse of discretion was deemed harmless however:

At the time this motion practice was initiated no court had completed a Frye hearing with respect to the FST, and only one court—namely, the Megnath (27 Misc 3d 405) court …—had conducted such a hearing with respect to LCN testing.  * * *

… [T]here was “marked conflict” with respect to the reliability of LCN DNA within the relevant scientific community at the time the LCN issue was litigated in this case … . * * *

… FST is a proprietary program exclusively developed and controlled by [the New York City Office of Chief Medical Examiner (OCME)]. The sole developer and the sole user are the same. That is not “an appropriate substitute for the thoughtful exchange of ideas . . . envisioned by Frye” … . It is an invitation to bias. People v Williams, 2020 NY Slip Op 02123, CtApp 3-31-20

Similar issues and result in People v Foster-Bey, 2020 NY Slip Op 02124, CtApp 3-31-20

 

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NEW JERSEY CONVICTION FOR LEWDNESS, ALTHOUGH NOT A REGISTRABLE OFFENSE IN NEW JERSEY, IS THE EQUIVALENT OF ENDANGERING THE WELFARE OF A CHILD; IT IS APPROPRIATE TO CONSIDER THE CONDUCT UNDERLYING THE FOREIGN OFFENSE IN ADDITION TO THE ELEMENTS OF THE OFFENSE; 30 POINT ASSESSMENT BASED ON THE NEW JERSEY CONVICTION WAS CORRECT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a concurrence and a two-judge dissent, determined defendant was properly assessed 30 points based upon his prior New Jersey conviction for lewdness. The New Jersey offense, based upon defendant’s repeatedly exposing himself to the 12-year-old victim,  was deemed the equivalent of New York’s endangering the welfare of a child:

At the SORA court hearing, defendant challenged the assessment of 30 points under risk factor 9, asserting that his New Jersey lewdness conviction was neither a registrable offense in New Jersey nor did the comparable offense under New York law—public lewdness (a misdemeanor)—subject defendant to SORA registration in New York … . * * *

At the outset, we must resolve whether reliance on the underlying conduct of a prior foreign conviction is appropriate as a matter of law for purposes of assessing points under risk factor 9 when conducting a SORA risk-level determination. Under these circumstances, we hold that it is. * * *

Our analysis of the New Jersey conviction starts with North v Board of Examiners of Sex Offenders of State of New York, wherein we considered whether the defendant was required to register as a sex offender as a result of his federal conviction for possession of child pornography (8 NY3d 745 [2007]). That question turned on the “essential elements” provision in SORA, which defines “sex offense,” in relevant part, as “a conviction of an offense in any other jurisdiction which includes all of the essential elements of any [registrable sex offense in New York listed in section 168-a (2) of the Correction Law]” … . We concluded that, with respect to registrable offenses, the “essential elements” provision “requires registration whenever an individual is convicted of criminal conduct in a foreign jurisdiction that, if committed in New York, would have amounted to a registrable New York offense” … . …

In the SORA registration context … we [have held] that the strict equivalency standard was “not the optimal vehicle to effectuate SORA’s remedial purposes” and it was thus appropriate to utilize a more flexible approach that allowed consideration of the underlying conduct of a foreign conviction in addition to comparing the essential elements of the foreign and New York offense … . People v Perez, 2020 NY Slip Op 02096, CtApp 3-26-20

 

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CRIMINALLY NEGLIGENT HOMICIDE CONVICTION ARISING FROM A TRAFFIC ACCIDENT WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, over a two-justice dissent, determined the conviction for criminally negligence homicide was against the weight of the evidence. The passenger in defendant’s car was killed when defendant’s car went off the road, apparently after colliding with other cars defendant was attempting to pass. The decision described all of the witness’s testimony in detail and concluded the conflicting testimony was not a sufficient basis for a conviction:

“A person is guilty of criminally negligent homicide when, with criminal negligence, he [or she] causes the death of another person” (Penal Law § 125.10). A person acts with criminal negligence when “he [or she] fails to perceive a substantial and unjustifiable risk that such result will occur or that such [a] circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation” (Penal Law § 15.05[4]).

The defendant’s conduct must rise to a level of carelessness where its “seriousness would be apparent to anyone who shares the community’s . . . sense of right and wrong” … . Moreover, the conduct must create the risk, rather than simply not perceive the risk … .

In cases concerning charges of criminally negligent homicide arising out of automobile accidents involving excess rates of speed, “it takes some additional affirmative act by the defendant to transform speeding into dangerous speeding” … .

Here, the People failed to establish, beyond a reasonable doubt, that the defendant “fail[ed] to perceive a substantial and unjustifiable risk” (Penal Law § 15.05[4]) which caused the death of his passenger. People v Derival, 2020 NY Slip Op 02072, Second Dept 3-25-20

 

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TESTIMONY SUPPORTING THE ADMISSION OF DNA PROFILES WAS HEARSAY WHICH VIOLATED THE CONFRONTATION CLAUSE (CT APP). ​

The Court of Appeals, reversing defendant’s conviction, over a concurrence, determined the testimony which formed the basis for the admission in evidence of DNA profiles was hearsay which violated the Confrontation Clause:

In People v John, we held that, 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” (27 NY3d 294, 315 [2016]). In People v Austin, we reiterated that a testifying analyst who did not participate in the generation of a testimonial DNA profile satisfies the Confrontation Clause’s requirements only if the analyst “used his or her independent analysis on the raw data to arrive at his or her own conclusions” (30 NY3d 98, 105 [2017] … ). The records before us do not establish that the testifying analyst had such a role in either case. Accordingly, because the analyst’s hearsay testimony as to the DNA profiles developed from the post-arrest buccal swabs “easily satisfies the primary purpose test” for determining whether evidence is testimonial … , we conclude that her testimony and the admission of those DNA profiles into evidence, over defendants’ objections, violated defendants’ confrontation rights. People v Tsintzelis, 2020 NY Slip Op 02026, CtApp 3-24-20

 

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AN ENTRY IN THE CASE SUMMARY ALONE IS NOT A SUFFICIENT BASIS FOR AN ASSESSMENT OF POINTS (FOURTH DEPT).

The Fourth Department, reducing defendant’s risk level, determined that an entry in the case summary alone is not sufficient to justify an assessment of points:

We agree with defendant that the People failed to prove by the requisite clear and convincing evidence that he had committed a continuing course of sexual misconduct, i.e., risk factor 4 on the risk assessment instrument (RAI) … . The sole evidence presented by the People in support of that risk factor was the case summary prepared by the Board of Examiners of Sex Offenders. At the SORA hearing, however, defendant specifically denied the allegation within the case summary that he engaged in a continuing course of sexual misconduct, and instead testified that he engaged in one instance only. Indeed, it is undisputed that defendant was charged with and pleaded guilty to one count of rape in the third degree … stemming from a specific instance of intercourse that occurred on one specified day. We conclude that “the case summary alone is not sufficient to satisfy the People’s burden of proving the risk level assessment by clear and convincing evidence where, as here, defendant contested the factual allegations related to [the] risk factor” … . People v Maund, 2020 NY Slip Op 02011, Fourth Dept 3-20-20

 

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS WAS PROPERLY DENIED WITHOUT A HEARING; THE TWO DISSENTERS ARGUED THE PRO SE MOTION WAS SUFFICIENT TO WARRANT A HEARING, DESPITE THE TECHNICAL DEFECTS (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined defendant’s pro se motion to vacate his conviction by guilty plea, on ineffective assistance of counsel grounds, was properly denied without a hearing. The dissenters argued defendant raised the issue sufficiently to warrant a hearing:

Defendant contends that defense counsel was ineffective because he failed to advise defendant, prior to the guilty plea, of a potentially viable affirmative defense concerning the operability of the firearm used in the robberies … . Defendant did not submit, however, the statutorily-required “sworn allegations” of “the existence or occurrence of facts” in support of his motion to warrant such a hearing … . The rule that a CPL 440.10 motion must be predicated on sworn allegations is a fundamental statutory requirement that a defendant must satisfy to be entitled to a hearing … . Absent sworn allegations substantiating defendant’s contentions, the court did not abuse its discretion in summarily denying the motion … .

Specifically, defendant did not aver in his initial motion papers that he would have rejected the favorable plea deal and insisted on proceeding to trial had he been made aware of the potentially viable affirmative defense. Inasmuch as defendant “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial”  … , his failure to swear that he would have done so is fatal to his motion, and thus the court did not err in denying it without a hearing … . People v Dogan, 2020 NY Slip Op 02021, Fourth Dept 3-20-20

 

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BECAUSE DEFENDANT INVOKED HIS RIGHT TO COUNSEL WHEN HE WAS NOT IN CUSTODY HE COULD VALIDLY WITHDRAW HIS REQUEST WITHOUT THE PRESENCE OF COUNSEL (FOURTH DEPT).

The Fourth Department determined defendant invoked his right to counsel when he was not in custody and therefore defendant could validly withdraw his request for counsel without the presence of counsel:

The Court of Appeals has stated that a defendant who asserts his or her right to counsel while out of custody may later withdraw that assertion without an attorney present and speak to law enforcement agents … . A hearing court may infer that a defendant has withdrawn a request for counsel when the defendant’s conduct unambiguously establishes such a withdrawal, which requires consideration of all relevant factors, including “whether defendant was fully advised of his or her constitutional rights before invoking the right to counsel and subsequently waiving it, whether the defendant who has requested assistance earlier has initiated the further communication or conversation with the police . . . , and whether there has been a break in the interrogation after the defendant has asserted the need for counsel with a reasonable opportunity during the break for the suspect to contact an attorney” … . Here, defendant was repeatedly advised of his rights, including twice immediately before he resumed speaking with the police. Moreover, after an overnight break in questioning, defendant initiated the conversation with the police to inquire about taking a polygraph examination, and he provided his own transportation to the investigators’ office. Consequently, we conclude that the court properly determined that defendant withdrew his assertion of his right to counsel … . We reject defendant’s contention that a different result is required because he did not cause the break in the interrogation. The relevant consideration is not which party caused the break in the questioning, rather it is whether there was “a reasonable opportunity during the break for the suspect to contact an attorney” … , and in this case defendant had such an opportunity during the overnight break in questioning. People v Brown, 2020 NY Slip Op 01981, Fourth Dept 3-20-20

 

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THE DEFENSE ATTORNEY HAD BEGUN WORKING FOR THE DISTRICT ATTORNEY’S OFFICE AT THE TIME DEFENDANT ENTERED HIS PLEA; DEFENDANT WAS THEREBY DEPRIVED OF HIS RIGHT TO COUNSEL; PLEA VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant was deprived of his right counsel because defense counsel had become employed by the district attorney’s office at the time of the plea:

It is well established that a criminal defendant’s right to counsel is violated when a defense attorney who actively participated in the preliminary stages of the defendant’s defense becomes employed as an assistant district attorney by the office that is prosecuting the defendant’s ongoing case … . In those circumstances, the defendant and the public are given “the unmistakable appearance of impropriety and [the situation] create[s] the continuing opportunity for abuse of confidences entrusted to the attorney during the [period] of his [or her] active representation of defendant” … . Disqualification is required when there is “the appearance of impropriety and the risk of prejudice attendant on abuse of confidence, however slight” … . “The rule is necessary to prevent situations in which [a] former client[] must depend on the good faith of [his or her] former [attorney] turned adversar[y] to protect and honor confidences shared during the now extinct relationship. In those situations the risk of abuse is obvious” … .

Here, we conclude that defendant’s right to counsel was violated … . The People concede that the attorney who had represented defendant with respect to the misdemeanor charges was employed by the District Attorney’s Office at the time defendant entered into the plea agreement that resolved those misdemeanor charges as well as the felony charges. Thus, on this record, we conclude that there is an “appearance of impropriety and . . . risk of prejudice attendant on abuse of confidence” … , and defendant should not have been required to “depend on the good faith of [his] former [attorney] turned adversar[y] to protect and honor confidences shared during the now extinct relationship” … . People v Sears, 2020 NY Slip Op 01974, Fourth Dept 3-20-20

 

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