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EVIDENCE DEFENDANT HAD BEEN ACCUSED OF FRAUDULENTLY PRACTICING DENTISTRY IN THE PAST WAS NOT RELEVANT TO THE INSTANT PROCEEDING ALLEGING THE UNLICENSED PRACTICE OF DENTISTRY; THE PREJUDICIAL EFFECT WAS EXACERBATED BY REFERENCES TO THE ALLEGED FRAUD BY THE PROSECUTOR IN SUMMATION AND BY THE JUDGE IN THE INSTRUCTIONS TO THE JURY; DEFENDANT’S CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the probative value of evidence submitted to the jury was outweighed by its prejudicial effect. Defendant was charged under the Education Law with practicing dentistry without a license. Defendant alleged he was legally acting as a clinical director in a dental office. The jury was presented with evidence indicating defendant had been previously accused of practicing dentistry fraudulently:

Evidence that the defendant voluntarily surrendered his license to practice dentistry in 2000 was properly admitted to show that the defendant was unlicensed and was aware that he was unlicensed. However, the evidence submitted to the jury, which consisted of the defendant’s “application to surrender license,” stated not only that he was voluntarily surrendering his license, but also that he was doing so because he was “under investigation for allegations that [he] practiced the profession of dentistry fraudulently, within the purview and meaning of New York Education Law section 6509(2), and committed unprofessional conduct by engaging in conduct in the practice of the profession of dentistry evidencing moral unfitness to practice.” During summation, the prosecutor argued that the defendant had surrendered his license because he “had practiced the profession of dentistry fraudulently.” Thereafter, during the Supreme Court’s instructions to the jury, the court instructed the jurors that “there was evidence in the case that on another occasion, the defendant engaged in criminal conduct and was convicted of a crime,” which was “offered as evidence for [the jurors’] consideration on the questions of whether those facts are inextricably interwoven with the crimes charged, if [they] find the evidence believable, [they] may consider it for that limited purpose and for none other.”

The references to fraud and moral turpitude were not relevant to the issue of whether the defendant was unlicensed and was aware that he was unlicensed. Under the circumstances, any probative value of the evidence of the prior fraud was outweighed by its prejudicial effect … .  People v Hollander, 2019 NY Slip Op 07950, Second Dept 11-6-19

 

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TRIAL JUDGE SHOULD NOT HAVE LIMITED DEFENSE CROSS-EXAMINATION OF A WITNESS TESTIFYING ABOUT DNA TRANSFER, AND SHOULD NOT HAVE INSTRUCTED THE JURY TO ACCEPT A POLICE OFFICER’S EXPLANATION, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the trial judge should not have limited cross-examination of the prosecution’s witness about DNA transfer, and should not have instructed the jury, during defense counsel’s summation, to accept the testimony of a prosecution witness:

… [T]he defendant’s contention that his right to confrontation was violated when the Supreme Court limited cross-examination of a prosecution witness on the issue of DNA transfer is preserved for appellate review  … . Furthermore, the court’s limitation of defense counsel’s cross-examination with regard to DNA transfer was an improvident exercise of discretion, since the testimony defense counsel sought to elicit would have been relevant and would not have confused or misled the jury … . Moreover, under the circumstances presented, the error was not harmless, as there is a reasonable possibility that the error contributed to the defendant’s convictions … .

We also agree with the defendant’s contention that his right to a fair trial was violated when, during summation, defense counsel attacked the credibility of the testimony of certain police officers regarding wanted posters, and the Supreme Court instructed the jury, “there was testimony on that. The jurors will be bound by its recollection of the testimony and the explanation.” Since a “jury is presumed to follow the court’s instructions” … , the court’s instruction, which bound the jury to accept the officer’s explanation, rather than to rely on its recollection of the testimony and the evidence, was erroneous. People v Kennedy, 2019 NY Slip Op 07899, Second Dept 11-6-19

 

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DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE IN THIS STATUTORY RAPE CASE (SECOND DEPT).

The Second Department, reducing defendant’s risk assessment from level 2 to level 1, determined a downward department was appropriate because the statutory rape conviction involved consensual sex and defendant had no other sexual offenses in his history:

In cases of statutory rape, the Board has long recognized that strict application of the Guidelines may in some instances result in overassessment of the offender’s risk to public safety. The Guidelines provide that “[t]he Board or a court may choose to depart downward in an appropriate case and in those instances where (i) the victim’s lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points in this category results in an over-assessment of the offender’s risk to public safety” … .

Considering all of the circumstances present here, including that this offense is the only sex-related crime in the defendant’s history, as well as the fact that the defendant’s overall score of 80 points, as reduced by the Supreme Court, was near the low end of the range applicable to a presumptive level two designation (75 to 105 points), the assessment of 25 points under risk factor 2 results in an overassessment of the defendant’s risk to public safety … . Accordingly, a downward departure was appropriate, and the defendant should have been designated a level one sex offender. People v Fisher, 2019 NY Slip Op 07893, Second Dept 11-6-19

 

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POLICE OFFICER’S WARRANTLESS ENTRY INTO A METH LAB WAS JUSTIFIED BY WHAT WAS IN PLAIN VIEW THROUGH A PARTIALLY OPEN DOOR AND THE OFFICER’S CONCERN FOR THE SAFETY OF PEOPLE INSIDE A NEARBY TRAILER (THIRD DEPT).

The Third Department determined a warrantless search and seizure of a meth lab was valid and defendant’s motion to suppress was properly denied. Four police officers went to defendant’s property based upon a tip defendant was operating a meth lab there. Before going to the property, the police learned defendant and his girlfriend had purchased Sudafed, which is used to make methanphetamine, and that their subsequent attempts to buy Sudafed were denied. Once on the property officer DeMuth was able to see into the lab through a partially open door. He entered the lab, allegedly because he feared for the safety of  persons in a nearby trailer:

All of the attendant circumstances, including DeMuth’s knowledge of the tip and defendant’s conduct in running out the back door, justified DeMuth’s actions in conducting a limited protective sweep, which consisted of walking to the base of the trailer’s back steps, where the unknown item had been dropped, and peering inside the shed . The record establishes that, once DeMuth was lawfully in position, he was able to observe the incriminating evidence in plain view inside the shed … . …

DeMuth testified that his observations, together with his knowledge of the tip and the information obtained from the national precursor log, led him to believe that there was an active methamphetamine lab inside the shed. He stated that, based upon his training and experience regarding the dangers of methamphetamine production, particularly the risk of explosion, he immediately became concerned for the safety of the inhabitants of the trailer (which included several children), himself and his fellow officers and that he fully opened the door to the shed to provide ventilation. DeMuth’s testimony demonstrated that he had objectively reasonable grounds for believing that the contents of the shed posed an immediate danger to everyone present on the scene and, thus, that his actions in opening the door to the shed were justified … . The record establishes that the methamphetamine lab was subsequently seized by the New York State Police Contaminated Crime Scene Emergency Response Team. In view of all of the foregoing, we find that the warrantless search and seizure of the methamphetamine lab was justified by exceptions to the warrant requirement. People v Richards, 2019 NY Slip Op 07810, Third Dept 10-31-19

 

WAIVER OF INDICTMENT WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE THE TIME AND PLACE OF THE OFFENSE (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined the waiver of indictment was jurisdictionally defected because the time and place of the offense were not included:

… [A] waiver of indictment must be executed in strict compliance with CPL 195.20, which specifically requires, as is relevant here, that it set forth the “date and approximate time and place of each offense to be charged in the [SCI]” … . Although the statutory requirements of CPL 195.20 may be satisfied by reading the waiver of indictment and the SCI [superior court information] as a single document, here, neither document set forth the time of the charged offense (see CPL 195.20 …). Further, “this is not a ‘situation where the time of the offense is unknown or, perhaps, unknowable’ so as to excuse the absence of such information” … . Indeed, the felony complaint contains information regarding the time that the offense occurred … . We find unavailing the People’s assertion that reference in the waiver of the indictment to the underlying felony complaint, which contains the time of the offense, to be sufficient to comply with the clear and simple statutorily-required information. In view of the foregoing, the waiver of indictment and the related SCI are jurisdictionally defective, thereby requiring that the plea be vacated and the SCI dismissed … . People v Walley, 2019 NY Slip Op 07816, Third Dept 10-31-19

 

PETITIONER WAS INITIALLY APPROVED FOR PAROLE, BUT AFTER THE VICTIM IMPACT HEARING A RESCISSION HEARING WAS HELD AND PAROLE WAS RESCINDED; THE RESCISSION WAS PROPERLY BASED UPON VICTIM IMPACT STATEMENTS SUPPLYING INFORMATION WHICH WAS NOT “NEW” BUT WHICH WAS NOT PREVIOUSLY KNOWN TO THE PAROLE BOARD (THIRD DEPT).

The Third Department, over a two-justice dissent, determined petitioner’s parole was properly rescinded after a rescission hearing was triggered by a victim impact hearing:

In August 2016, letters were sent from the Department of Corrections and Community Supervision to the Albany County District Attorney’s office and the judge who imposed the sentence informing them that petitioner was scheduled to appear before respondent.Petitioner appeared before respondent in December 2017, after which he was granted parole with an open release date in February 2018. Thereafter, in January 2018, a victim impact hearing was held at which the victim’s mother and two brothers gave victim impact statements. After this hearing, petitioner was served with a notice of rescission hearing, which was subsequently held in February 2018. Following the rescission hearing, petitioner’s open release date was rescinded and a hold period of nine months was imposed. This determination was upheld on administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding.

Petitioner argues that the victim impact statements and letters from the District Attorney’s office and sentencing judge disclosed no new facts about petitioner’s crime. … . … Although we agree that the letters should not have been considered as they did not reveal any information not previously known by respondent, this argument must fail with respect to the victim impact statements because neither the relevant regulation, nor the existing case law, requires that “new” information must be disclosed for parole to be rescinded (see 9 NYCRR 8002.5) …  Simply stated, although the regulation provides that such information must be “significant” and “not known” by respondent at the time of the original hearing, the origin of this information need not be “new” … .

Here, respondent was presented with previously unknown information from the mother, including that she was so traumatized by her son’s death that she did everything she could to avoid thinking about it, including never visiting his grave. The mother explained that, in the 25 years since the victim’s death, she has not celebrated Christmas, Thanksgiving or her other sons’ birthdays. She described how she thought that, once petitioner went to prison, it was done, and that she was safe, but she no longer felt safe. Matter of Benson v New York State Bd. of Parole, 2019 NY Slip Op 07829, Third Dept 10-31-19

 

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THE MOTION TO SUPPRESS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BECAUSE DEFENSE COUNSEL HAD NOT BEEN PROVIDED WITH A COPY OF THE SEARCH WARRANT AT THE TIME THE MOTION WAS MADE (SECOND DEPT).

The Second Department, reversing County Court, determined the motion to suppress should not have been granted without a hearing because defense counsel had not been provided with a copy of the search warrant at the time the motion was made:

In evaluating whether a defendant’s factual allegations in a suppression motion are sufficient to warrant a hearing, the court must assess “(1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant’s access to information” … .

We disagree with the County Court’s decision to deny that branch of the defendant’s omnibus motion which sought to controvert the search warrant without holding a hearing, as defense counsel did not have access to even a redacted copy of the search warrant applications at the time the motion was made … . Although in moving to controvert the search warrant, defense counsel did not make precise factual averments, he was not required to do so as he did not have access to the search warrant applications at issue … . People v Lambey, 2019 NY Slip Op 07793, Second Dept 10-30-19

 

DEFENSE PEREMPTORY CHALLENGES TO WHITE JURORS NOT SUPPORTED BY RACE-NEUTRAL REASONS; THE ALLEGED ERROR IN INSTRUCTING THE JURY ON THE JUSTIFICATION DEFENSE WAS NOT PRESERVED (SECOND DEPT).

The Second Department determined defense peremptory challenges to prospective white jurors were not justified on race-neutral grounds and the alleged error in instructing the jury on the justification defense was not preserved:

The defendant contends that the Supreme Court erred in disallowing his peremptory challenges to two prospective white jurors because he provided sufficient race-neutral explanations for challenging them … . However, defense counsel’s proffered explanations for challenging the two jurors “amounted, essentially, to no reason at all” … . Thus, we agree with the court’s determination that the proffered explanations were pretextual and with the court’s disallowal of the defendant’s peremptory challenges. Moreover, the court did not act improperly by, sua sponte, directing the defendant’s counsel to provide race-neutral explanations for the peremptory challenges … .

The defendant contends that the Supreme Court’s instruction to the jury regarding the defense of justification was erroneous because the court included an instruction regarding the use of physical force to resist arrest. This contention is without merit. The justification charge, taken as a whole, correctly instructed the jury as to the defense of justification, and was a correct statement of the applicable law (see CPL 300.10[2] … ). The defendant also contends that the justification instruction was erroneous because the court did not instruct the jurors that, if they found the defendant not guilty of charges of attempted murder in the first degree based on the defense of justification, they were not to consider the lesser counts of aggravated assault upon a police officer and attempted aggravated assault upon a police officer. The defendant failed to preserve this contention for appellate review, and we decline to review this issue in the exercise of our interest of justice jurisdiction … . People v Foxworth, 2019 NY Slip Op 07790, Second Dept 10-30-19

 

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HEARING NECESSARY TO DETERMINE WHETHER FAMILY COURT HAS SUBJECT MATTER JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING; JURISDICTION DEPENDS ON THE NATURE OF THE RELATIONSHIP BETWEEN THE PARTIES (SECOND DEPT).

The Second Department, reversing Family Court, determined a hearing was necessary on whether the court had subject matter jurisdiction for the petition seeking an order of protection:

… [T]he petitioner commenced this proceeding pursuant to Family Court Act article 8 seeking an order of protection against Cynthia J. Brock. The petitioner alleged, inter alia, that she and Brock were in an intimate relationship in that the petitioner was the paternal great grandmother of Brock’s child, and that she and Brock had “lived together in the past.” The petitioner further alleged that although her grandson and the child had moved out of her home a month earlier, Brock continued to routinely drop off the child at the petitioner’s home after Brock’s parental access time with the child, and used these opportunities to threaten, abuse, and annoy the petitioner. The petitioner also alleged that Brock telephoned the child on a daily basis, and verbally harassed the petitioner on the phone. Subsequently, Brock made an application to dismiss the petition for lack of subject matter jurisdiction on the ground that the relationship between her and the petitioner did not qualify as an “intimate relationship” within the meaning of Family Court Act § 812(1)(e). The Family Court granted the application and dismissed the petition.

The Family Court is a court of limited subject matter jurisdiction, and “cannot exercise powers beyond those granted to it by statute”… . Pursuant to Family Court Act § 812(1), the Family Court’s jurisdiction in family offense proceedings is limited to certain proscribed criminal acts that occur “between spouses or former spouses, or between parent and child or between members of the same family or household” … . For purposes of Family Court Act article 8, “members of the same family or household” include, inter alia, “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … . Expressly excluded from the ambit of “intimate relationship” are “casual acquaintance[s]” and “ordinary fraternization between two individuals in business or social contexts” … . Beyond those delineated exclusions, what qualifies as an intimate relationship within the meaning of Family Court Act § 812(1)(e) is determined on a case-by-case basis … . Relevant factors include “the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship … . Matter of Hamrahi v Brock, 2019 NY Slip Op 07781, Second Dept 10-30-19

 

THE TOP COUNT OF A MISDEMEANOR COMPLAINT WAS NOT SUPPORTED BY SWORN ALLEGATIONS OF FACT, BUT THE LESSER COUNTS WERE SUPPORTED; A GUILTY PLEA TO THE JURISDICTIONALLY DEFECTIVE TOP COUNT DID NOT WAIVE THE DEFECT AND DEFENDANT’S CONVICTION WAS PROPERLY REVERSED (CT APP).

The Court of Appeals, in a two sentence memorandum decision, followed by two lengthy concurring opinions, and a lengthy three-judge dissenting opinion, determined the Appellate Term properly reversed defendant’s guilty plea to a jurisdictionally defective count of a misdemeanor complaint. The top count of the misdemeanor complaint (oxycodone possession) was not sufficiently supported by the factual deposition, but the lesser counts of the complaint (marijuana possession) were supported. Defendant pled guilty to the top count. Defendant’s guilty plea did not waive the jurisdictional defect:

Even if the accusatory instrument properly sets out a lower-grade offense, a defendant’s challenge to a conviction based on the jurisdictional deficiency of a higher-grade crime of a multi-count complaint is not waived by the defendant’s guilty plea. The Appellate Term properly reversed the judgment of conviction and sentence on the ground “that it was jurisdictionally defective as to the crime of which defendant was actually convicted” (People v Hightower, 18 NY3d 249, 254 [2011]). People v Thiam, 2019 NY Slip Op 07712, CtApp 1-29-19

 

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