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BECAUSE THE ISSUE WAS NOT PRESERVED, THE APPELLATE COURT DID NOT ADDRESS DEFENDANT’S OBJECTION TO THE TRIAL JUDGE’S PROHIBITING DEFENDANT FROM COMMUNICATING WITH HIS ATTORNEY DURING OVERNIGHT RECESSES WHEN DEFENDANT WAS ON THE STAND (FOURTH DEPT).

The Fourth Department determined the defendant did not preserve for appeal his objection to the trial judge’s prohibiting defendant from communicating with his lawyer during overnight recesses when defendant was testifying. The legitimacy of the objection was not addressed:

Defendant … contends in his main brief that the court committed reversible error by depriving him of the constitutional right to counsel when it prohibited him from communicating with defense counsel about his testimony during overnight recesses while defendant was in the midst of testifying in his defense. Defendant failed to preserve that contention for our review inasmuch as defense counsel was ” present and available to register a protest’ to [the] restriction on communication that would [have] provide[d] the court with an opportunity to rectify its error” but did not make a timely protest … . Under the circumstances of this case, we decline to exercise our power to review that contention as a matter of discretion in the interest of justice … . Contrary to defendant’s related contention in his main brief, we conclude under the circumstances of this case that defense counsel’s failure to timely object to the prohibition on communication was not so “egregious and prejudicial as to compromise . . . defendant’s right to a fair trial” … . People v Tetro, 2020 NY Slip Op 01973, Fourth Dept 3-20-20

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, ASSESSED POINTS ON A THEORY NOT RAISED BY THE BOARD OF EXAMINERS OF SEX OFFENDERS OR THE PEOPLE; DEFENDANT WAS THEREBY DEPRIVED OF HIS RIGHT TO DUE PROCESS OF LAW (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the judge should not have, sua sponte, assessed points on a theory not raised by the Board of Examiners of Sex Offenders or the People:

… [D]efendant contends, and the People correctly concede, that County Court violated his right to due process by sua sponte assessing points on a theory not raised by the Board of Examiners of Sex Offenders or the People … . The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment … . Here, no allegations were made either in the risk assessment instrument (RAI) or by the People at the SORA hearing that defendant should be assessed 30 points under risk factor 3, and defendant learned of the assessment of the additional points under that risk factor for the first time when the court issued its decision … . …

The court stated that, if defendant were a presumptive level one risk, an upward departure to level two would be warranted based on certain aggravating factors stemming from the nature of the crimes. Because those factors were not presented as bases for departure in the RAI or by the People at the hearing, defendant was not afforded notice and a meaningful opportunity to respond to them … . People v Wilke, 2020 NY Slip Op 02002, Fourth Dept 3-20-20

 

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FAILURE TO INFORM DEFENDANT OF THE PERIOD OF POST RELEASE SUPERVISION REQUIRED VACATION OF THE SENTENCE; PRESERVATION OF THE ERROR NOT NECESSARY (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined defendant should have been informed his sentence would include a period of post release supervision (PRS). Because defendant was not put on notice, there was not need to preserve the issue for appeal:

At the plea proceeding, the court advised defendant that under the plea agreement, he would plead guilty to third-degree possession, a class B felony, and fifth-degree possession, a class D felony, with the understanding that if he complied with the terms of the plea agreement, he would be allowed to withdraw his plea to the B felony, and be sentenced, solely on the D felony, to 3½ years in prison, followed by two years of postrelease supervision. The court stated that if defendant violated the terms of the plea agreement, he could be sentenced to up to 15 years in prison on the B felony, but it neglected to state that any enhanced sentence would include a period of PRS. Defendant violated the plea agreement by, among other things, failing to appear for sentencing, and the court imposed an enhanced sentence that included two years of post release supervision concurrent on the B and D felonies.

The court was required to advise defendant that his potential sentence in the event he violated the plea conditions would include PRS, and it was also required to specify the length of the term of PRS … . The prosecutor’s brief reference to PRS immediately before sentencing was not the type of notice under People v Murray (15 NY3d 725 [2010]) that would require defendant to preserve the issue … . People v Jamison, 2020 NY Slip Op 01955, First Dept 3-19-20

 

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WAIVER OF APPEAL INVALID; THERE WAS PROBABLE CAUSE FOR THE DWI ARREST EVEN THOUGH NO FIELD SOBRIETY TESTS WERE CONDUCTED; BETTER PRACTICE WOULD BE FOR THE PROSECUTOR TO PLACE THE EVIDENCE OF DEFENDANT’S GUILT ON THE RECORD AT THE TIME OF AN ALFORD PLEA (THIRD DEPT).

The Third Department, affirming defendant’s DWI conviction by guilty plea, determined the waiver of appeal was insufficient. The Third Department noted that the better practice would have been to place the evidence of defendant’s guilt on the record at the time of the Alford plea, and found the arresting officer had probable cause without conducting field sobriety tests. With regard to the waiver of appeal, the court wrote:

During the brief colloquy with defendant, County Court did not sufficiently distinguish the waiver of the right to appeal from the trial-related rights that defendant was forfeiting by virtue of his guilty plea, and the record does not reflect that defendant executed a written waiver. Additionally, in response to County Court’s inquiry regarding defendant’s willingness to waive his right to appeal, defendant replied, “Yes, if that’s what I gotta do, yes. If that’s what you’re making me do, I’ll do it.” Under these circumstances, we are unable to conclude that defendant knowingly, intelligently and voluntarily waived his right to appeal. People v Crandall, 2020 NY Slip Op 01857, Third Dept 3-16-20

 

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JUDGE WHO WAS THE DISTRICT ATTORNEY WHEN DEFENDANT WAS INDICTED WAS DISQUALIFIED FROM HEARING DEFENDANT’S MOTION TO VACATE HIS CONVICTION (FOURTH DEPT).

The Fourth Department, reversing County Court’s summary denial of defendant’s motion to vacate his conviction, determined the judge, who was the District Attorney when defendant was indicted, was disqualified from handling the motion:

The Judge who denied defendant’s motion had been the Niagara County District Attorney when defendant was indicted in 2007 on the charges that resulted in the judgment now sought to be vacated and, in fact, had signed the indictment. Thus, we conclude that the Judge was disqualified from entertaining the motion pursuant to Judiciary Law § 14, which provides in relevant part that “[a] judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding to which he [or she] is a party, or in which he [or she] has been attorney or counsel” (emphasis added). Inasmuch as “this statutory disqualification deprived the court of jurisdiction,” the order on appeal is void … . We therefore reverse the order and remit the matter to County Court for further proceedings on the motion before a different judge … . People v Simcoe, 2020 NY Slip Op 01729, Fourth Dept 3-13-20

 

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RECKLESS ENDANGERMENT CONVICTION NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; BECAUSE THE LEGAL SUFFICIENCY OF THE CONVICTION WAS NOT CHALLENGED IT MUST BE REVERSED NOT REDUCED BY THE APPELLATE COURT; GRAND LARCENY AND POSSESSION OF STOLEN PROPERTY CONVICTIONS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; INADEQUATE PROOF OF VALUE (FOURTH DEPT).

The Fourth Department reversed the reckless endangerment, grand larceny, possession of stolen property, and arson third degree convictions, and affirmed the murder, assault and arson second degree convictions. With respect to reckless endangerment first degree, the conviction was against the weight of the evidence and the appellate court could not reduce the conviction to a lesser included because defendant did not argue the evidence was legally insufficient. So the reckless endangerment conviction was reversed. The grand larceny/possession of stolen property convictions were not supported by adequate proof that the value of the stolen vehicle was more than $100. Arson third degree was dismissed as an inclusory concurrent count of arson in the second degree:

We agree with defendant … that the verdict finding him guilty of reckless endangerment in the first degree is against the weight of the evidence. “A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person” … . Count five of the indictment alleged that defendant recklessly engaged in conduct creating a grave risk of death to emergency responders when he intentionally started the fire. We agree with defendant that the verdict on that count is against the weight of the evidence because the People did not prove beyond a reasonable doubt that defendant acted with depraved indifference to human life when he set the fire … . Inasmuch as defendant is challenging only the weight of the evidence with respect to that count and does not challenge the legal sufficiency of the evidence with respect to that count, we cannot reduce the conviction to the lesser included offense of reckless endangerment in the second degree … . * * *

We further agree with defendant that the verdict finding him guilty of grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree is against the weight of the evidence. With respect to each of those counts, the People were required to establish that the value of the stolen motor vehicle exceeded $100 … . It is well settled that a witness “must provide a basis of knowledge for his [or her] statement of value before it can be accepted as legally sufficient evidence of such value” … . “Conclusory statements and rough estimates of value are not sufficient” … . Although the monetary element of each crime is quite low, the People did not attempt to meet that threshold through the testimony of any witness. The testimony of a detective that the vehicle was “[d]efinitely worth over probably 10,000” did not satisfy the monetary element of either crime inasmuch as he provided no basis of knowledge for his statement of value. We therefore further modify the judgment by reversing those parts convicting defendant of grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree and dismissing counts eight and nine of the indictment. People v Box, 2020 NY Slip Op 01813, Fourth Dept 3-13-20

 

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ALTHOUGH THE ASSAULT JURY INSTRUCTION DID NOT TRACK THE INDICTMENT, THE PEOPLE DID NOT OBJECT TO IT AND THE APPELLATE COURT MUST ASSESS THE SUFFICIENCY OF THE EVIDENCE ACCORDING TO THE INSTRUCTION; ASSESSED IN THE LIGHT OF THE JURY INSTRUCTION, THE ASSAULT COUNTS WERE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE; THE CRIMINAL USE OF A FIREARM JURY INSTRUCTION DID NOT TRACK THE INDICTMENT, VIOLATING DEFENDANT’S RIGHT TO BE TRIED ONLY ON THE CRIMES CHARGED (FOURTH DEPT).

The Fourth Department, over a dissent, reversed the assault convictions, while affirming the murder conviction. The codefendant, intending to kill the decedent, also shot the two assault victims. Defendant was charged with murder and assault as an accomplice. Although the indictment charged assault under a transferred intent theory, the jury was instructed to find the defendant guilty of assault only if he intended injure the assault victims. Because, on appeal, the sufficiency of the evidence must be measured by the what the jury was instructed to consider, and because there was no evidence the defendant intended to injure the assault victims (as opposed to the decedent), the assault convictions were not supported by legally sufficient evidence. Although the defendant did not preserve the error by objecting to another inaccurate jury instruction which did not track the indictment, the criminal use of a firearm count was also dismissed because defendant’s right to the tried only on the crimes charged was violated:

“The doctrine of transferred intent’ serves to ensure that a person will be prosecuted for the crime he or she intended to commit even when, because of bad aim or some other lucky mistake,’ the intended target was not the actual victim” … . Although that theory may be applied to assault charges … , County Court’s jury instruction in this case mandated that the jury could convict defendant of the counts of assault in the first degree only if they found that he acted “with the intent to cause serious physical injury to” each assault victim, rather than instructing the jury that they could convict defendant of those crimes if they concluded that he intended to cause such injury to the deceased victim but the codefendant actually caused injury to the assault victims. The prosecution did not object to that charge, and it is well settled that, when reviewing a “jury’s guilty verdict, our review is limited to whether there was legally sufficient evidence . . . based on the court’s charge as given without exception” … . Inasmuch as there is insufficient evidence that defendant knew that either of the assault victims was present or that he intended any harm to either of them … , we conclude that the evidence is not legally sufficient with respect to the assault counts as charged to the jury. * * *

Although the court’s jury instructions did not specify assault in the first degree as the underlying crime for the criminal use of a firearm in the first degree count, and defendant did not object to the court’s instructions and thus did not preserve this issue for our review, we conclude that “preservation is not required” … , inasmuch as “defendant has a fundamental and nonwaivable right to be tried only on the crimes charged” in the indictment … . Therefore, based on the indictment, defendant could only be convicted of that charge if he committed assault in the first degree … . Thus, we conclude that, because “the conviction[s] of assault in the first degree cannot stand, the conviction of criminal use of a firearm in the first degree, which requires commission of [the] class B violent felony offense[ of assault in the first degree] while possessing a deadly weapon, also cannot stand” … . People v Spencer, 2020 NY Slip Op 01823, Fourth Dept 3-13-20

 

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IT WAS (HARMLESS) ERROR TO ALLOW A POLICE OFFICER TO IDENTIFY DEFENDANT IN SECURITY CAMERA FOOTAGE (FOURTH DEPT).

The Fourth Department determined it was (harmless) error to allow a police officer to identify defendant in security camera footage:

Defendant … contends that the court erred in permitting a police detective to give testimony identifying defendant as the shooter in the security camera footage and drawing certain inferences from that footage … . To the extent that defendant’s contention is preserved for our review (see CPL 470.05 [2]), we conclude that any error in the admission of that testimony is harmless … . We note that the court sustained at least one objection from defense counsel after a nonresponsive answer from the police detective and issued a curative instruction with respect to that answer, which the jury is presumed to have followed … . We also note that the court’s final instructions to the jury alleviated much of the prejudice of the police detective’s testimony of which defendant now complains. The court instructed the jury that they were the sole and exclusive judges of the facts, that the testimony of police officers should not automatically be accepted, and that defendant’s identity was a disputed issue in the case. The court also instructed the jury how it should evaluate the accuracy of identification testimony. Again, the jury is presumed to have followed those instructions … . People v Jordan, 2020 NY Slip Op 01817, Fourth Dept 3-13-20

 

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined defendant’s motion to vacate his conviction on ineffective assistance ground should not have been denied without a hearing:

… [D]efendant’s CPL 440.10 motion was supported by a notarized but unsworn statement of a witness, dated prior to defendant’s trial, who asserted that defendant had borrowed the witness’s jacket minutes before defendant’s arrest, that the controlled substances in the pockets of that jacket belonged to the witness, and that defendant had no prior knowledge of the controlled substances … . Defendant himself averred in an affidavit submitted in support of his motion that he informed trial counsel prior to trial of the witness’s willingness to testify. Defendant’s motion therefore set forth sufficient facts tending to substantiate his claim that he was denied effective assistance of counsel, and we therefore agree with defendant that Supreme Court erred in denying that claim without a hearing … .

We further agree with defendant that the court erred in rejecting his contention that trial counsel was ineffective for failing to either secure police surveillance of the traffic stop that led to defendant’s arrest or seek sanctions for the prosecution’s alleged failure to preserve the same. People v Fox, 2020 NY Slip Op 01809, Fourth Dept 3-13-20

 

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should not have been denied without a hearing. The defendant submitted an affidavit from an alibi witness claiming that defendant was out-of-state at the time of the offense and further stating that she had so informed defense counsel. In denying the motion to vacate, Supreme Court noted that defendant did not submit an affidavit from defense counsel. The Fourth Department recognized  that obtaining such an affidavit is problematic where ineffective assistance is alleged:

“It is well established that the failure to investigate or call exculpatory witnesses may amount to ineffective assistance of counsel’ ” … . Contrary to the court’s determination, a “defendant’s failure to submit an affidavit from trial counsel is not fatal to [a CPL 440.10] motion” … . Where, as here, the defendant’s ” application is adverse and hostile to his [or her] trial attorney,’ it is wasteful and unnecessary’ to require the defendant to secure an affidavit from counsel, or to explain his [or her] failure to do so” … . Moreover, to be entitled to a hearing, a defendant is not required to submit with his or her motion evidence corroborating the alibi witness’s affidavit … . Although the lack of corroboration is a factor the court may consider at a hearing, it is not a basis for denying the motion summarily. People v Scott, 2020 NY Slip Op 01807, Fourth Dept 3-13-20

 

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