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DEFENDANT WAS NOT INFORMED THAT THE SENTENCE WOULD INCLUDE POSTRELEASE SUPERVISION AT THE TIME OF THE PLEA, ALTHOUGH HE WAS INFORMED THE SENTENCE PROMISE WAS CONDITIONED UPON NO FURTHER ARRESTS; DEFENDANT WAS ARRESTED TWICE BEFORE SENTENCING AND AN ENHANCED SENTENCE, INCLUDING POSTRELEASE SUPERVISION, WAS IMPOSED; PLEA WAS NOT VOLUNTARY; ERROR APPEALABLE DESPITE LACK OF PRESERVATION (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined that the plea was not voluntary because defendant was not informed that the sentence would include a period of postrelease supervision. At the time of the plea, defendant was told the 1 – 3 1/2 year sentence promise was conditioned upon no additional arrests. Defendant was arrested twice before sentencing. The court imposed an enhanced sentence which included a period of postrelease supervision which was not mentioned at the time of the plea. The error was appealable despite the lack of preservation:

Contrary to the People’s contention, the defendant was not required to preserve for appellate review his current claim that his plea of guilty was not knowingly, voluntarily, and intelligently entered based on the County Court’s failure to mention the postrelease supervision component of his sentence at the plea proceeding, since he had no knowledge of, or opportunity to challenge, that portion of his sentence prior to its imposition … . …

… [T]he record reflects that the defendant was not made aware at the time he entered his plea that the terms of his sentence would include a period of postrelease supervision … , nor did he have a sufficient opportunity to move to withdraw his plea on that basis before the court imposed sentence … . Accordingly, the judgment must be reversed, the plea of guilty vacated … . People v Walton, 2019 NY Slip Op 08230, Second Dept 11-13-19

 

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BURGLARY AS A SEXUALLY MOTIVATED OFFENSE FIRST DEGREE IS NOT A REGISTERABLE OFFENSE UNDER SORA; A SEX OFFENDER CLASSIFICATION IS APPEALABLE WHEN THE ERROR IS NOT PRESERVED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice LaSalle, determined that burglary as a sexually motivated felony first degree (Penal Law 140.30[2]) is not a registerable offense under SORA, the result of an apparently unintended omission from the Correction Law. Defendant had attempted to rape the victim after breaking into her house. The court noted that a sex offender classification is appealable even when the alleged error is not preserved:

… [W]hen looking first at the statutory text of Correction Law § 168-a(2)(a), we find that the language employed is clear and unambiguous. As written, subparagraph (iii) of section 168-a(2)(a) specifically defines a sex offense as “a conviction of or a conviction for an attempt to commit any provisions of the foregoing sections committed or attempted . . . as a sexually motivated felony defined in section 130.91 of such law.” Thus, as the defendant contends, according to the language of the statute as amended, burglary in the first degree as a sexually motivated felony is not a registerable sex offense under SORA. While this may not have been the intent of the Legislature, the omission of a critical grammatical signpost or a parenthetical number preceding “as a sexually motivated felony” clearly limits the qualifying sexually motivated felony offenses only to those enumerated in subparagraphs (i) and (ii) … . “The maxim expressio unius est exclusio alterius is applied in the construction of the statutes, so that where a law expressly describes a particular act, thing or person to which it shall apply,  an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” … . People v Buyund, 2019 NY Slip Op 08207, Second Dept 11-13-19

 

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SEIZURE OF DEFENDANT WAS BASED UPON AN ANONYMOUS TIP, SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing the relevant convictions, determined the police officer effectively seized defendant by blocking defendant’s car based upon an anonymous tip. The evidence seized from the car should have been suppressed:

The conviction of criminal possession of a weapon in the second degree arises from a police encounter during which an officer received information from an anonymous 911 call that drugs were being sold out of a vehicle. The officer arrived on the scene and observed a legally parked vehicle matching the description given by the anonymous caller and further observed defendant in a fully reclined position in the driver’s seat. The officer parked his patrol car alongside defendant’s vehicle in such a manner as to prevent defendant from driving away and, as the People stipulated in their post-hearing memorandum, the officer thereby effectively seized the vehicle. We agree with defendant that the police lacked reasonable suspicion to justify the initial seizure, and thus County Court erred in refusing to suppress both the tangible property seized, i.e., the weapon and marihuana found in the vehicle, and the statements defendant made to the police at the time of his arrest … . Based on the anonymous tip and defendant’s otherwise innocuous behavior … , the officer had, at most, a “founded suspicion that criminal activity [was] afoot,” which permitted him to approach the vehicle and make a common-law inquiry of its occupants ,,, . The officer did not make any “confirmatory observations” of the criminal behavior reported by the 911 caller … and therefore did not have “a reasonable suspicion that [defendant] was involved in a felony or misdemeanor” to justify the seizure … . People v Williams, 2019 NY Slip Op 08048, Fourth Dept 11-8-19

 

THE WAIVER OF INDICTMENT IS JURISDICTIONALLY DEFECTIVE FOR FAILURE TO INCLUDE THE APPROXIMATE TIME OF EACH OFFENSE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction by guilty plea, determined the waiver of indictment was jurisdictionally defective for failure state the approximate time of each offense:

A jurisdictionally valid waiver of indictment must contain, inter alia, the “approximate time” of each offense charged in the superior court information (SCI) … . That requirement is strictly enforced … . ” [S]ubstantial compliance will not be tolerated’ ” … . Here, the waiver of indictment does not contain the approximate time of the offense … . Inasmuch as the SCI also does not contain that information, we need not consider whether to adopt the so-called “single document” rule … . We therefore reverse the judgment, vacate the plea and waiver of indictment, and dismiss the SCI … . People v Denis, 2019 NY Slip Op 08047, Fourth Dept 11-8-19

 

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ALLOWING LOSS PREVENTION OFFICERS TO IDENTIFY DEFENDANT IN A SURVEILLANCE VIDEO MAY HAVE BEEN ERROR BUT WAS NOT DEMONSTRATED TO CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL (FOURTH DEPT).

The Fourth Department determined defense counsel’s failure to object to testimony of loss prevention officers identifying defendant in a surveillance video was not demonstrated to amount to ineffective assistance:

Although we agree with defendant that there is no basis in the record to conclude that the loss prevention officers who gave testimony identifying defendant as an individual depicted in the surveillance video were more likely to correctly identify defendant from the video than the jury … , we further conclude that defendant failed to “demonstrate the absence of strategic or other legitimate explanations for counsel’s alleged shortcoming[]” in failing to object to the admission of that testimony … . People v Hines, 2019 NY Slip Op 08032, Fourth Dept 11-8-19

 

DEFENDANT ENTITLED TO A HEARING ON WHAT SHOULD BE REDACTED FROM THE PRESENTENCE REPORT BUT IS NOT ENTITLED TO RESENTENCING (FOURTH DEPT).

The Fourth Department determined defendant in this manslaughter case was entitled to a hearing to determine what information should be redacted from the presentence report. However she was not entitled to resentencing:

Defendant … contends that this matter should be remitted for a conference or summary hearing to determine what information should be redacted from the presentence report. We agree, and we note that the People do not oppose remittal for that purpose. The record establishes that defendant sent a letter to County Court objecting to certain portions of the report, including references to her failure to cooperate with law enforcement and to her invocation of her right to counsel. At sentencing, the court acknowledged the objections and indicated that it agreed with some, but not all, of them. The court, however, failed to articulate which portions should be redacted. Accordingly, because “defendant was not properly afforded an opportunity to challenge the contents of the presentence report” … , we hold the case and remit the matter to County Court for further proceedings in accordance with our decision.

To the extent that defendant contends that she is entitled to be resentenced based on the alleged errors in the presentence report, we reject that contention inasmuch as there is no indication that the court relied on the alleged improper information contained in the report in sentencing her … . People v Ferguson, 2019 NY Slip Op 08016, Fourth Dept 11-8-19

 

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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

 

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