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TWELVE YEAR SENTENCE FOR CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE THIRD DEGREE DEEMED UNDULY HARSH AND SEVERE, REDUCED TO SEVEN YEARS IN THE INTEREST OF JUSTICE, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice partial dissent, reduced defendant’s sentence in this “criminal possession of a controlled substance third degree” case from 12 to seven years. The period of post-release supervision was reduced from three to one and a half years. Defendant was found in possession of over 35 ounces of cocaine:

… [W]e agree with defendant that, under the circumstances of this case, the resentence is unduly harsh and severe. We therefore modify the resentence as a matter of discretion in the interest of justice by reducing the sentence of imprisonment to a determinate term of seven years and the period of PRS to a period of 1½ years … . People v Loiz, 2019 NY Slip Op 06240, Fourth Dept 8-22-19

 

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DEFENDANT SHOULD NOT HAVE BEEN DESIGNATED A PREDICATE SEX OFFENDER BASED UPON A MICHIGAN CONVICTION OF “BREAKING AND ENTERING AN OCCUPIED DWELLING WITH THE INTENT TO COMMIT CRIMINAL SEXUAL CONDUCT IN THE SECOND DEGREE” (SECOND DEPT).

The Second Department determined defendant should not have been classified as a predicate sex offender based upon a Michigan conviction of breaking and entering an occupied dwelling with the intent to commit criminal sexual conduct in the second degree:

Supreme Court should not have, in effect, designated the defendant a predicate sex offender based upon his 1983 Michigan conviction. Where the prior conviction was in a jurisdiction other than New York State, the offense in the other jurisdiction must include all of the essential elements of a crime enumerated as a “sex offense” or “sexually violent offense” in the Correction Law or must require registration as a sex offender in the jurisdiction in which the conviction occurred  … . Although the crime of breaking and entering an occupied dwelling with the intent to commit criminal sexual conduct in the second degree in Michigan is equivalent to the offense of burglary in the second degree in New York … , burglary is not classified by the Correction Law as a “sex offense” or a “sexually violent offense” … , and the People did not rely on the 1983 Michigan conviction as constituting a sexually motivated felony. Moreover, the crime of which the defendant was convicted in 1983 is not considered a sex offense requiring registration as a sex offender in Michigan … . Accordingly, the designation of the defendant as a predicate sex offender was improper … . People v Smith, 2019 NY Slip Op 06181, Second Dept 8-21-19

 

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THE SOURCE CODE USED TO CONNECT DNA FROM THE MURDER SCENE TO THE DEFENDANT GENERATED A REPORT WHICH IMPLICATED THE DEFENDANT AND WAS THEREFORE TESTIMONIAL, HOWEVER, THE SOURCE CODE, AS A FORM OF ARTIFICIAL INTELLIGENCE, WAS NOT THE DECLARANT; THEREFORE THE FACT THAT DEFENDANT WAS NOT PROVIDED WITH THE SOURCE CODE DID NOT VIOLATE HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, over a concurrence, determined the evidence concerning the TrueAllele source code used to connect the DNA found at the murder scene to the defendant was testimonial, but the source code, as artificial intelligence, was not the declarant. Therefore the fact that the defendant was not provided with the source code (which was not requested by the defendant during the trial) did not deprive defendant of the right to confront the witnesses against him. Rather, the Third Department found, the witness who testified about how the source code was used in the DNA testing was the declarant. Defendant had raised the intriguing question whether the source code, as a form of artificial intelligence, was the actual declarant triggering the right of confrontation:

Cybergenetics was “acting in the role of assisting the police and prosecutors in developing evidence for use at trial” … . Also, the report reflects TrueAllele’s conclusions “upon review of the raw data associated with the testing” … . TrueAllele, by running at the source code’s direction, compared DNA found at the crime scene to that of defendant’s DNA and generated the report containing the likelihood ratios, which, in effect, implicates defendant in the murder; thus, it is clearly biased in favor of law enforcement … . Accordingly, application of the primary purpose test reveals that the TrueAllele report is testimonial in nature … .

Despite concluding that the TrueAllele report is testimonial, we do not find, given the particular facts of this case, that the source code, even through the medium of the computer, is a declarant. This is not to say that an artificial intelligence-type system could never be a declarant, nor is there little doubt that the report and likelihood ratios at issue were derived through distributed cognition between technology and humans … . Indeed, similar to many expert reports, the testimonial aspects of the TrueAllele report are formulated through a synergy and distributed cognition continuum between human and machine … , but this fact alone does not tip the scale so far as to transform the source code into a declarant. People v Wakefield, 2019 NY Slip Op 06143, Third Department, 8-15-19

 

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BRIEF PARTICIPATION IN JURY DELIBERATIONS BY AN ALTERNATE WHILE A SWORN JUROR WAS ABSENT VIOLATED DEFENDANT’S CONSTITUTIONAL RIGHT TO A JURY OF 12, DEFENDANT’S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant’s motion for a mistrial should have been granted after the judge learned that an alternate juror had participated in the jury deliberations while a sworn juror was absent. The trial judge denied the mistrial motion after receiving assurances from all the sworn jurors that they could start the deliberations over:

After an undefined period of time, it became apparent to the Supreme Court that an alternate juror briefly participated in deliberations with 11 sworn members of the jury while the 12th sworn juror was absent from the jury room. The court then replaced the alternate juror with the 12th sworn juror and sent the jury back to deliberate before breaking for the day. * * *

“The New York Constitution guarantees every criminal defendant a trial by jury,” which includes the right to a jury of 12 … . “A defendant has a constitutional right to a trial by a particular jury chosen according to law, in whose selection [the defendant] has had a voice” … . “At the heart of this right is the need to ensure that jury deliberations are conducted in secret, and not influenced or intruded upon by outside factors” … . The violation of a defendant’s right to a jury trial of 12 is a “fundamental defect[ ] in judicial proceedings” … .

CPL 310.10(1) provides, inter alia, that “[f]ollowing the court’s charge, . . . the jury must retire to deliberate upon its verdict.” Pursuant to CPL 270.30, after the jury has retired to deliberate, the court must either (1) with the consent of the defendant and the People, discharge the alternate jurors, or (2) direct the alternate jurors not to discuss the case and further direct that they be kept separate and apart from the regular jurors. Once deliberations begin, a regular juror may be replaced by an alternate juror only with the defendant’s written consent (see CPL 270.35). “[F]ailure to comply with the statutory requirement of written, signed consent results in substitution of an alternate juror during deliberations without an effective, constitutional waiver. Such substitution directly contravenes [People v] Ryan and infringes the defendant’s fundamental, constitutional right to trial by a jury of 12” … . People v Larman, 2019 NY Slip Op 06097, Second Dept 8-7-19

 

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THE TRIAL JUDGE’S FAILURE TO PUT ON THE RECORD THE REASONS FOR REQUIRING DEFENDANT TO WEAR A STUN BELT WAS NOT A MODE OF PROCEEDINGS ERROR AND COUNSEL’S FAILURE TO OBJECT WAS NOT INEFFECTIVE ASSISTANCE, THE RELEVANT PROCEDURAL REQUIREMENTS WERE NOT ANNOUNCED BY THE COURT OF APPEALS UNTIL EIGHT YEARS AFTER THE TRIAL; THE LOSS OF TRIAL EXHIBITS DEMONSTRATING WHETHER THE PEREMPTORY JUROR CHALLENGES WERE EXHAUSTED IS HELD AGAINST THE DEFENDANT BECAUSE OF HIS FAILURE TO SEEK A TIMELY RECONSTRUCTION HEARING (FOURTH DEPT)

The Fourth Department affirmed defendant’s murder conviction and the denial of his motion to vacate the judgment of conviction in a decision addressing several substantive issues not summarized here. The trial court’s failure to put on the record the reasons for requiring defendant to wear a stun belt during trial was not a mode of proceedings error and the failure to object was not ineffective assistance because the relevant procedural requirements were not announced by the Court of Appeals until eight years after defendant’s trial. The apparent loss of exhibits which would demonstrate whether defendant exhausted the peremptory juror challenges was held against the defendant because of the passage of time and the failure to seek a timely reconstruction hearing:

Assuming, arguendo, that defendant was forced to wear a stun belt, we need not reverse the court’s order denying defendant’s CPL 440.10 motion because defendant failed to object to the use of a stun belt, and the improper use of a stun belt is not a mode of proceedings error … . Thus, the failure to object to the stun belt’s use means that “reversal would not have been required” on a direct appeal … . As a result, even on the merits, there is no basis upon which to vacate the judgment of conviction … . Defendant further contends that trial counsel was ineffective in failing to object to the use of a stun belt. We disagree. The seminal case requiring that a court place findings of fact on the record before requiring a defendant to wear a stun belt is … , which was decided eight years after the judgment in this case. Although the Court’s decision in Buchanan “did not announce “new” rules of law’ “… , we nevertheless conclude that trial counsel was not ineffective in failing to anticipate the procedural requirements established by the Court’s decision in Buchanan … . * * *

… [D]efendant has provided no explanation for the 14-year delay between the judgment and direct appeal, and “there was nothing to prevent [defendant] from pursuing his appeal” … . Moreover, defendant “has not shown that, if he had acted diligently, an adequate reconstruction of those proceedings could not have been achieved” … . Had defendant, through his former, privately retained appellate counsel, perfected his appeal in a timely manner, it is possible that the slips of paper might still have been with the file, and it is highly probable that the relevant parties would have been able to recall whether defendant exhausted his peremptory challenges. Where, as here, the lengthy delay is attributable to a defendant’s action or inaction, the weight of appellate authority holds that the absence of the relevant transcripts or exhibits should be held against the defendant and the judgment affirmed … . People v Osman, 2019 NY Slip Op 05903, Fourth Dept 7-31-19

 

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DEFENDANT’S MOTION TO SET ASIDE THE VERDICT, BASED UPON A JUROR’S KNOWLEDGE AND CONDUCT, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department determined defendant’s motion to set aside the verdict, based upon a connection between a juror and defendant’s mother, should not have been denied without a hearing:

… [T]he court erred in summarily denying his motion to set aside the verdict pursuant to CPL 330.30 (2). The sworn allegations in support of defendant’s motion, including those in the affidavit of his mother, indicated that a juror may have had an undisclosed, potentially strained relationship with the mother resulting from attending high school and working together, possibly knew about defendant’s criminal history, and purportedly attempted to speak with the mother’s husband during a lunch break at trial, and that the alleged misconduct was “not known to the defendant prior to rendition of the verdict” … . We conclude that the allegations ” required a hearing on the issue whether the juror’s alleged misconduct prejudiced a substantial right of defendant’ ” … . We therefore hold the case, reserve decision and remit the matter to County Court to conduct a hearing on defendant’s CPL 330.30 motion. People v Blunt, 2019 NY Slip Op 05917, Fourth Dept 7-31-19

 

DEFENDANT’S PROBATION SHOULD NOT HAVE BEEN REVOKED ABSENT A HEARING OR AN ADMISSION (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant’s probation should not have been revoked absent a hearing or an admission:

“A court may not revoke a sentence of probation without finding that the defendant has violated a condition [there]of . . . and affording [him or her] an opportunity to be heard (see CPL 410.70 [1]). The statutory requirements may be satisfied either by conducting a revocation hearing pursuant to CPL 410.70 (3) . . . , or through an admission by the defendant of the violation, coupled with a proper waiver of [his or her] right to a hearing” … . Here, as the People correctly concede, defendant never admitted to violating his probation and the court never conducted a revocation hearing. People v Ayotunji A., 2019 NY Slip Op 05916, Fourth Dept 7-31-19

 

87 DAY DELAY ATTRIBUTABLE TO THE PEOPLE DESPITE THE ‘READY FOR TRIAL’ ANNOUNCEMENT AND THE ABSENCE OF A SPECIFIC REQUEST FOR AN ADJOURNMENT, INDICTMENT DISMISSED ON SPEEDY TRIAL GROUNDS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and dismissing the indictment on speedy trial grounds, determined the 87 day delay during which the People sought a superseding indictment was attributable to the People despite their “ready for trial” announcement and despite the absence of a specific request for an adjournment:

… [The]period of delay was “attributable to [the People’s] inaction and directly implicate[d] their ability to proceed to trial” on a charge of CPCS in the fifth degree, i.e., the crime that the People sought to add by way of a superseding indictment and the sole crime for which defendant was ultimately convicted … . Contrary to the court’s determination, the 87-day period was not attributable to the court given that it was “the People’s inaction [in securing a superseding indictment that] resulted in a delay in the court’s [trial of the action]” … . Contrary to the People’s contention, it is well established that postreadiness delay may be assessed “notwithstanding that the People have answered ready for trial within the statutory time limit” … and notwithstanding the absence of an explicit prosecutorial request for an adjournment … . Although certain periods of time may be excluded from assessment as postreadiness delay where the People successfully invoke one of the exceptions enumerated in CPL 30.30 (4) … , the People have identified no exception that might excuse the 87-day delay at issue here … . People v Johnson, 2019 NY Slip Op 05920, Fourth Dept 7-31-19

 

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THE PURSUIT OF DEFENDANT WAS NOT JUSTIFIED AND DEFENDANT’S DISCARDING THE HANDGUN WAS IN RESPONSE TO POLICE ILLEGALITY, THE HANDGUN WAS NOT ABANDONED AND SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, vacating the guilty plea and dismissing the indictment, determined the handgun discarded by the defendant during a police chase should have been suppressed. The police were responding to information that a black male had discharged a weapon. There were several black males in the area and nothing indicated defendant was involved in criminal activity. The defendant did not abandon the weapon because it was discarded in response to police illegality:

… [T]he officer’s action of pursuing defendant in response to his flight was not justified at its inception inasmuch as there were no specific circumstances indicating that defendant may have been engaged in criminal activity so as to give rise to reasonable suspicion … . Although the officer observed defendant walking in the general vicinity of the reported gun shots, that observation does not provide the “requisite reasonable suspicion, in the absence of other objective indicia of criminality’ ” that would justify pursuit, and no such evidence was presented at the suppression hearing … . In the absence of other identifying information, the fact that defendant may have matched the vague, generic description of the suspect as a black male, which could have applied to any number of individuals in the area of the large apartment complex with hundreds of residents, did not sufficiently indicate that defendant may have been engaged in criminal activity … . Thus, the pursuit of defendant was unlawful. * * *

… [D]defendant’s act of discarding the handgun was “spontaneous and precipitated by the unlawful pursuit by the police” and, therefore, the handgun should have been suppressed … . People v Jones, 2019 NY Slip Op 05940, Fourth Dept 7-31-19

 

ALTHOUGH THE JURY WAS PROPERLY INSTRUCTED TO ACQUIT ON ALL COUNTS IF THE JUSTIFICATION DEFENSE APPLIED, THE VERDICT SHEET DID NOT MENTION THE JUSTIFICATION DEFENSE WHICH MAY HAVE GIVEN THE JURY THE IMPRESSION THE JUSTIFICATION DEFENSE SHOULD BE CONSIDERED SEPARATELY FOR EACH COUNT, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the failure to include the justification defense on the verdict sheet may have led the jurors to believe they had to reconsider the justification defense for each count. The judge had correctly instructed the jurors to acquit on all counts if the justification defense applied, but the omission from the verdict sheet was enough to call the verdict into question:

Supreme Court properly instructed the jurors to consider justification as an element of each count submitted for their consideration. The court also properly instructed the jurors that they must find the defendant not guilty of all counts if they found that the People failed to disprove the defendant’s justification defense.

However, the verdict sheet did not mention justification, and instructed the jurors to “continue to” the following count if they found the defendant not guilty of count one, two, three, or four. Therefore, the Supreme Court’s instructions, taken together as a whole, may have led the jurors to conclude that deliberation on each crime required reconsideration of the justification defense, even if they had already acquitted the defendant of the previous count based on justification … . There is now no way of knowing whether the jurors acquitted the defendant of the greater counts on the ground of justification so as to mandate acquittal on the lesser counts … . People v Smith, 2019 NY Slip Op 06004, Second Dept 7-31-19

 

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