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DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE WHEN DEFENSE COUNSEL TOLD HIM HE “MOST LIKELY” WOULD BE DEPORTED WHEN DEPORTATION WAS MANDATORY; APPEAL HELD IN ABEYANCE TO ALLOW DEFENDANT TO MOVE TO VACATE HIS PLEA; ONE DISSENT (FIRST DEPT).

The First Department, over a dissent, determined defendant did not receive effective assistance of counsel because his attorney told him he would “most likely” be deported when deportation was mandatory. The dissenter argued the record was not sufficient to conclude, as a matter of law, defense counsel was ineffective and a CPL 440 motion should be brought to flesh out the facts:

Defendant was deprived of effective assistance when his counsel advised his client that because of his plea, he “will most likely be deported[“],since it is clear that defendant’s drug-related conviction would trigger mandatory deportation under 8 USC § 1227 (a)(2)(B)(i) … . The remarks made by counsel on the record to the judge, as to what he advised his client with regard to the immigration consequences of his plea, are sufficient to permit review on direct appeal … . Thus, we hold this matter in abeyance to afford defendant the opportunity to move to vacate his plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea. People v Johnson, 2019 NY Slip Op 08348, First Dept 11-19-19

 

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SENTENCES MUST RUN CONCURRENTLY, NOT CONSECUTIVELY; ERROR NEED NOT BE PRESERVED (FOURTH DEPT).

The Fourth Department determined defendant’s sentences should run concurrently, not consecutively, noting that preservation of the error was not required:

… [T]he sentence is illegal insofar as County Court directed that the sentences imposed on the two counts charging criminal possession of a weapon in the second degree run consecutively to the sentence imposed on the count charging assault in the second degree. We note that defendant’s contention does not require preservation … . The People had the burden of establishing that consecutive sentences were legal, i.e., that the crimes were committed through separate acts or omissions (… see generally Penal Law § 70.25 [2]), and they failed to meet that burden. With respect to the count charging criminal possession of a weapon in the second degree under Penal Law § 265.03 (1) (b), “the People neither alleged nor proved that defendant’s possession [of the gun] was marked by an unlawful intent separate and distinct from his intent to shoot the victim[]” … . With respect to the count charging criminal possession of a weapon in the second degree under Penal Law § 265.03 (3), there was no evidence presented at trial that defendant’s act of possessing a loaded firearm “was separate and distinct from” his act of shooting the victim … . People v Tripp, 2019 NY Slip Op 08339, Second Dept 11-15-19

 

WAIVER OF INDICTMENT JURISDICTIONALLY DEFECTIVE; APPROXIMATE TIME OF THE OFFENSE NOT INCLUDED (FOURTH DEPT).

The Fourth Department determined the waiver of indictment was jurisdictionally defective because it did not include the approximate time of the offense:

A written waiver of indictment must be executed in strict compliance with the requirements of CPL 195.20 … , which in relevant part provides that such a waiver shall contain the “approximate time . . . of each offense to be charged in the [SCI]” (CPL 195.20). The People correctly concede that the written waiver of indictment failed to contain the approximate time of each offense and, because strict compliance with CPL 195.20 is required, we agree with defendant that the waiver was defective … . Contrary to the People’s contention, even if we assume, arguendo, that we are able to read an SCI in conjunction with a written waiver of indictment in order to cure a defect therein, that would not cure the defect in the written waiver in this case because the SCI does not state the approximate time of each offense … . People v Laws, 2019 NY Slip Op 08332, Fourth Dept 11-15-19

 

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TO BE ENFORCEABLE, A WAIVER OF APPEAL MUST BE SUPPORTED BY A SENTENCING COMMITMENT OR OTHER CONSIDERATION (FOURTH DEPT).

The Fourth Department noted that a waiver of appeal, to be enforceable, must be supported by a sentence promise as consideration:

Defendant correctly argues in his main brief that his waiver of the right to appeal is invalid because he pleaded guilty to the sole count of the indictment ” without receiving a sentencing commitment or any other consideration’ ” … . County Court’s promise to consider imposing a sentence below the statutory maximum merely restated its preexisting statutory and common-law obligation to impose an appropriate legal sentence … , and we agree with defendant that such a promise is the equivalent of no promise at all and cannot supply the consideration necessary to enforce a waiver of the right to appeal . As the Second Circuit explained in invalidating a waiver of the right to appeal under similar circumstances… , such an illusory promise is not consideration for a waiver because it affords the defendant “no benefit . . . beyond what he would have gotten by pleading guilty without an agreement” … . People v Schmidinger, 2019 NY Slip Op 08324, Fourth Dept 11-15-19

 

WAIVER OF INDICTMENT JURISDICTIONALLY DEFECTIVE; IT DID NOT INCLUDE THE APPROXIMATE TIME OF THE OFFENSE (FOURTH DEPT).

The Fourth Department vacated the plea and waiver of indictment because the approximate of the offense was not included in the waiver:

… [D]efendant contends that her waiver of indictment is jurisdictionally defective because it did not contain the “approximate time” of the offense (CPL 195.20). We agree. A jurisdictionally valid waiver of indictment must contain, inter alia, the “approximate time” of each offense charged in the superior court information (SCI) … . “The law demands strict and literal compliance with the constitutional and statutory framework for waiving indictment” … . ” [S]ubstantial compliance [with CPL 195.20] will not be tolerated’ ” … because “compliance with [its] literal terms . . . is the sine qua non of the voluntariness of an indictment waiver” … . Here, as the People correctly concede, the waiver of indictment does not contain the approximate time of the offense … . Moreover, we note that this is not a case ” where the time of the offense is unknown or, perhaps, unknowable’ so as to excuse the absence of such information” … . People v Kerce, 2019 NY Slip Op 08310, Fourth Dept 11-15-19

 

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FAILURE TO MENTION RESTITUTION IN DEFENDANT’S PRESENCE REQUIRES VACATION OF THE SENTENCE; DISCREPANCY BETWEEN THE AMOUNT OF RESTITUTION IN THE PLEA AGREEMENT AND THE CONFESSION OF JUDGMENT MUST BE REMEDIED UPON RESENTENCING (FOURTH DEPT).

The Fourth Department vacated defendant’s sentence because the sentencing court did not mention restitution as part of the sentence in defendant’s presence. The error survives a lack of preservation and a waiver of appeal. The Fourth Department noted that any discrepancy between the restitution amount in the plea agreement and the amount in the confession of judgment must be remedied upon resentencing:

… [D]efendant contends, and the People concede, that his confession of judgment with respect to restitution must be voided because the amount thereof differs from the amount of restitution contemplated by the plea bargain. Although not raised by the parties, we conclude that defendant’s sentence must be vacated in its entirety because County Court failed to pronounce the sentence of restitution in open court … .

“CPL 380.20 and 380.40 (1) collectively require that courts must pronounce sentence in every case where a conviction is entered’ and that—subject to limited exceptions not relevant here— [t]he defendant must be personally present at the time sentence is pronounced’ ” … . Restitution is a component of the sentence to which CPL 380.20 and CPL 380.40 (1) apply … . The requirements of CPL 380.20 and CPL 380.40 (1) are “unyielding” … , and their violation may be addressed on direct appeal notwithstanding a valid waiver of the right to appeal or the defendant’s failure to preserve the issue for appellate review … . When the sentencing court fails to orally pronounce a component of the sentence, the sentence must be vacated and the matter remitted for resentencing in compliance with the statutory scheme … . People v Cleveland, 2019 NY Slip Op 08308, Fourth Dept 11-15-19

 

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DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL; DEFENSE COUNSEL PROBABLY COULD HAVE WORKED OUT A PLEA TO AN OFFENSE WHICH DID NOT MANDATE DEPORTATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant did not receive effective assistance of counsel because there was a reasonable possibility a plea to something less than an aggravated felony could have been worked, with no mandatory deportation consequences:

At the hearing, defense counsel candidly admitted that he did not know, at the time of defendant’s plea, what an aggravated felony was, and that he mistakenly believed that defendant’s prior youthful offender adjudication, which resulted in a violation of probation charge that was disposed of at the same time as the instant plea, already rendered him deportable. However, New York YO adjudications are not considered criminal convictions for purposes of immigration law … . …

Accordingly, he did not attempt to obtain a sentence of less than one year on the third-degree conviction, which would have prevented it from being an aggravated felony, subjecting defendant, who is in removal proceedings, to mandatory deportation … . Counsel admitted that he had no strategic reason for not doing so; he simply did not know that defendant’s negotiated sentence of one to three years rendered robbery in the third degree an aggravated felony, or that defendant’s youthful offender adjudication did not render him deportable. People v Richards, 2019 NY Slip Op 08268, First Dept 11-14-19

 

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A JUROR’S ATTEMPT TO DEVELOP A RELATIONSHIP WITH A JAILED COOPERATING PROSECUTION WITNESS DURING DELIBERATIONS EXHIBITED ACTUAL AND IMPLIED BIAS REQUIRING A NEW TRIAL; A HARMLESS ERROR ANALYSIS IS NOT APPLICABLE (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, in a full-fledged opinion by Justice Renwick, determined that a juror who attempted to develop a relationship with a jailed cooperating prosecution witness during deliberations exhibited actual and implied bias, thereby depriving defendant of a fair trial. Although the juror and the witness were not able to speak to each other during deliberations, there was a missed call. After the trial the juror developed a serious relationship with the witness through letters and phone calls and expressed a desire to marry the witness. The First Department noted that a harmless error analysis was not appropriate:

Juror misconduct includes both “actual bias” and “implied bias.” Despite its name, “actual” bias merely requires proof of “a state of mind” that is “likely” to preclude a juror from rendering an impartial verdict … . Under CPL 270.20(1)(b), “[a]ctual bias. . . is not limited . . . to situations where a prospective juror has formed an opinion as to the defendant’s guilt” … . It may be demonstrated where a prospective juror’s conduct indicates her inability to follow the court’s instructions.

“Implied bias” exists where a juror “bears some … relationship to any such person [defendant, witness, prosecution] of such nature that it is likely to preclude [the juror] from rendering an impartial verdict” (CPL 270.20[1][c] … ). “[T]he frequency of contact and nature of the parties’ relationship are to be considered in determining whether disqualification is necessary” … .

Implied bias “requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect [his or] her ability to be fair and impartial” … .

Here, there was both actual and implied bias. The misconduct by Juror No. 6 was willful and blatant – the juror was admittedly attracted to the witness, a cooperating witness testifying on behalf of the People, and sought to develop a relationship with him while jury deliberations were still underway – even though she knew this was not permitted. The juror knew during deliberations that the witness had tried to call her back, suggesting that the interest was mutual, and the juror is now in a very serious relationship with the witness and seeks to marry him. Although the juror denied that her feelings about the witness affected her thinking about defendant, she was at least arguably more likely to credit his testimony and could subconsciously have sought to aide the side with which the witness was aligned … . People v McGregor, 2019 NY Slip Op 08283, First Dept 11-14-19

 

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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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