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DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, DEFENSE COUNSEL RELIED ON A CONSTITUTIONAL SPEEDY TRIAL ARGUMENT WHEN DEFENDANT WAS ENTITLED TO DISMISSAL OF THE INDICTMENT PURSUANT TO THE SPEEDY TRIAL STATUTE (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defense counsel was ineffective because defendant was entitled to dismissal of the indictment pursuant to the speedy trial statute. Defense counsel was aware of the correct dates, but only argued defendant was deprived of his constitutional right to a speedy trial and did not correct County Court’s erroneous time calculation:

Although defense counsel set forth the pertinent dates of the commencement of the action and defendant’s arraignment, at which time the People announced their readiness for trial (see CPL 30.30 [1] [a]), he failed to argue that the relevant period exceeded six months and was a clear violation of defendant’s statutory speedy trial rights. Instead, defense counsel focused on the constitutional speedy trial claim. At oral argument of the motion, the court addressed the statutory speedy trial claim, set forth the pertinent dates, and then stated that, according to its calculation, “without specifically crunching the numbers, but by estimates, that is a period of five months and seven days.” After addressing the circumstances of the superceding indictment and the constitutional speedy trial claim, the court asked defense counsel if there were “any fact[s] that would be pertinent that [it] did not recite in discussing the matter.” Instead of pointing out the court’s erroneous calculation of the statutory speedy trial period, defense counsel stated, “I think my motion was essentially based on the 30.20 Constitutional speedy trial . . .” … . …

Here, although, as noted, defense counsel made a speedy trial claim, we conclude that there was no strategic or legitimate explanation for defense counsel’s failure to alert the court that it had inaccurately calculated that only five months and seven days had passed between the commencement of the action and the People’s statement of readiness and that, instead, more than six months had elapsed … . People v Bloodworth, 2019 NY Slip Op 05284, Fourth Dept 6-28-19

 

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IN THIS CONSTRUCTIVE POSSESSION CASE, THE INVESTIGATOR’S ASKING DEFENDANT WHERE HE RESIDED WAS DESIGNED TO ELICIT AN INCRIMINATING RESPONSE, THEREFORE DEFENDANT’S RESPONSE WAS NOT PEDIGREE INFORMATION AND A CPL 710.30 NOTICE WAS REQUIRED, ADMISSION OF THE STATEMENT WAS HARMLESS ERROR HOWEVER (FOURTH DEPT).

The Fourth Department determined the defendant’s answer to the investigator’s asking where defendant resided, for which no CPL 710.30 notice was provided, was not pedigree information and should not have been admitted in evidence. The drug-possession charge was founded on constructive possession. Therefore asking defendant where he resided was designed to elicit an incriminating response. The error was deemed harmless however:

Defendant also contends that the court erred in admitting in evidence an oral statement of defendant regarding his address for which no CPL 710.30 notice had been given. The statement at issue was defendant’s response to a question about where he resided, and it was made to one of the principal investigators, who had executed a search warrant at the home of defendant’s parents. As the People correctly concede, defendant’s statement regarding his address was not pedigree information for which no CPL 710.30 notice was required … because, under the circumstances of this case, the investigator’s question was likely to elicit an incriminating admission and had a “necessary connection to an essential element of [the possessory] crime[] charged” … . The court thus erred in admitting the statement in evidence in the absence of a CPL 710.30 notice … . People v Tucker, 2019 NY Slip Op 05274, Fourth Dept 6-28-19

 

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DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT HEARSAY EVIDENCE DEMONSTRATING ONE OF THE ROBBERY VICTIMS, WHO DID NOT TESTIFY, FAILED TO IDENTIFY THE DEFENDANT IN A LINEUP, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the defendant should have been allowed to present evidence that one of the robbery victims, who did not testify, failed to identify the defendant at a lineup, even though there was evidence the victim falsely claimed he/she could not identify anyone:

The court erred in denying defendant’s application, expressly made under Chambers v Mississippi (410 US 284 [1973]), to receive testimony that one of the robbery victims, who was unavailable to testify at trial, failed to identify defendant at a lineup. Of the requirements for admission of exculpatory hearsay evidence, the only one in dispute is the reliability of the nonidentification. Although there were reasons to suspect that this victim may have falsely claimed to be unable to identify anyone in the lineup, the nonidentification plainly bore sufficient “indicia of reliability” under the applicable standard, which “hinges upon reliability rather than credibility”… . Where the proponent of the statement ” is able to establish this possibility of trustworthiness, it is the function of the jury alone to determine whether the declaration is sufficient to create reasonable doubt of guilt'” … . People v Cook, 2019 NY Slip Op 05210, First Dept 6-27-19

 

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CONVICTION AFFIRMED, THREE-JUDGE DISSENT ARGUED THE APPELLATE DIVISION EXCEEDED ITS AUTHORITY BY AFFIRMING ON A SEARCH-RELATED GROUND THAT WAS NOT RULED ON BY SUPREME COURT (CT APP).

The Court of Appeals, over a three-judge dissent, affirmed the suppression determination, without explaining the facts. The dissent mentions the facts briefly but argues that the Appellate Division exceeded its jurisdiction by affirming the conviction on a search-related ground that was not ruled on by Supreme Court:

The present case clearly falls into the category where the trial court’s decision has discrete sections enabling an appellate court to discern which issues it has considered and decided, and yet the Appellate Division reviewed an issue that the trial court had not decided adversely to defendant, offering “an entirely distinct alternative ground for affirmance” … . If a suppression court writes a “fully articulated” decision adverse to a defendant … , but omits discussion of a particular issue raised by the defendant, our law mandates that an appellate court cannot resolve the issue and must remit. Whether our interpretation of CPL 470.15 (1), in LaFontaine [92 NY2d at 474] and its progeny, is “undesirable from a policy point of view” … is a question for another day. LaFontaine is the law and, until such time as that precedent is overruled, “we are constrained by that decision, and . . . cannot be arbitrary in applying it” … . People v Hill, 2019 NY Slip Op 05187, CtApp 6-27-19

 

ANY ERROR IN FAILING TO INSTRUCT THE JURY ON LESSER INCLUDED OFFENSES WAS HARMLESS BECAUSE DEFENDANT WAS CONVICTED OF THE TOP COUNT AND THE HIGHEST LESSER INCLUDED OFFENSE WAS AVAILABLE TO THE JURY (CT APP).

The Court of Appeals determined denying a request for the jury to be instructed on lesser included offenses in this murder case was harmless error:

Even assuming the court erred in denying defendant’s request to submit the crimes of manslaughter in the second degree and criminally negligent homicide to the jury as lesser included offenses of the charged crimes of murder in the second degree and manslaughter in the first degree, the error was harmless … . The Appellate Division properly concluded that defendant’s conviction of the lesser inclusory count of first-degree manslaughter, which it dismissed as required by CPL 300.40 (3) (b), did not change the harmless error analysis. Under the circumstances presented here, the jury’s guilty verdict on the indictment’s highest count despite the availability of the next lesser included offense for their consideration, “forecloses [defendant’s] challenge to the court’s refusal to charge the remote lesser included offenses” … , because it dispels any speculation as to whether the jury might have reached a guilty verdict on “still lower degree[s] of homicide” … . People v McIntosh, 2019 NY Slip Op 05186, CtApp 6-27-19

 

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DENIAL OF THE REQUEST TO INSTRUCT THE JURY ON ASSAULT THIRD AS A LESSER INCLUDED OFFENSE AND THE ADMISSION OF THE 911 CALL AS AN EXCITED UTTERANCE WERE NOT REVERSIBLE ERRORS (CT APP).

The Court of Appeals, over an extensive dissenting opinion, as well as another brief dissenting opinion, determined the denial of defendant’s request for a jury instruction on the lesser included offense of assault third degree, and the admission of the 911 call as an excited utterance was harmless error. The facts are explained only in the dissent and are not summarized here:

Defendant failed to “show that there [was] a reasonable view of the evidence in the particular case that would support a finding that he committed the lesser included offense but not the greater” … . Although “[i]n determining whether such a reasonable view exists, the evidence must be viewed in the light most favorable to [the] defendant” … , charging the lesser included offense here “would [have] force[d] the jury to resort to sheer speculation” … .

Nor does Supreme Court’s admission of the call between the victim and the 911 operator require reversal. “A spontaneous declaration or excited utterance—made contemporaneously or immediately after a startling event—which asserts the circumstances of that occasion as observed by the declarant’ is an exception to the prohibition on hearsay” … . “The test is whether the utterance was made before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective power to be yet in abeyance'” … . Assuming, without deciding, that it was error to admit the 911 call, any such error would have been harmless … . People v Almonte, 2019 NY Slip Op 05185, CtApp 6-27-19

 

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A FACEBOOK ACCOUNT IS NOT AN ‘INTERNET IDENTIFIER’ WITHIN THE MEANING OF THE CORRECTION LAW, THEREFORE DEFENDANT SEX OFFENDER’S FAILURE TO DISCLOSE IT TO THE DIVISION OF CRIMINAL JUSTICE SERVICES IS NOT A CRIME (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, affirming the Appellate Division, determined defendant, a sex offender, did not violate the Correction Law by failing to disclose his Facebook account. The Facebook account was not an “internet identifier” which must be disclosed under the Correction Law:

… [T]he Appellate Division correctly concluded that Facebook is not an “internet identifier,” and that the existence of a Facebook account—as opposed to the internet identifiers a sex offender may use to access Facebook or interact with other users on Facebook—need not be disclosed to DCJS [Division of Criminal Justice Services] pursuant to Correction Law § 168-f (4). As the People concede, this was the legal theory upon which the indictment was based. The indictment therefore accuses defendant of performing acts that “simply do not constitute a crime” and is jurisdictionally defective … . People v Ellis, 2019 NY Slip Op 05183, CtApp 6-27-19

 

PAROLE BOARD MAY CONSIDER SUCH FACTORS AS REMORSE AND INSIGHT INTO THE OFFENSE, EVEN THOUGH THOSE FACTORS ARE NOT LISTED IN THE CONTROLLING STATUTE (THIRD DEPT). ​

The Third Department, affirming the denial of release on parole, noted that the parole board may properly consider remorse and insight into the offense, even though those factors are not listed in the statute:

Petitioner argues that the Board improperly questioned him regarding both what caused him to commit the crimes and why he initially failed to accept responsibility, resulting in the two young victims having to testify in court against him. “[W]hile the Board may not consider factors outside the scope of the applicable statute . . ., it can consider factors — such as remorse and insight into the offense — that are not enumerated in the statute but nonetheless relevant to an assessment of whether an inmate presents a danger to the community” … . As the Board’s questions challenged by petitioner were aimed at petitioner’s remorse, his acceptance of responsibility and insight into the crimes, they were not improper … and did not deprive petitioner of a fair hearing. Matter of Payne v Stanford, 2019 NY Slip Op 05242, Third Dept 6-27-19

 

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SUPERIOR COURT INFORMATION IS JURISDICTIONALLY DEFECTIVE FOR FAILURE TO INCLUDE THE TIME OF THE OFFENSE, ISSUE NEED NOT BE PRESERVED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the superior court information (SCI) to which defendant pled guilty was jurisdictionally defective because it did not include the time of the offense. The error survives the guilty plea and waiver of appeal and is not subject to the preservation requirement:

… [T]he People concede and we agree that the waiver of indictment is invalid and the SCI is jurisdictionally defective for failure to set forth the approximate time of the offense in accordance with CPL 195.20 … . People v Jones, 2019 NY Slip Op 05236, Third Dept 6-27-19

 

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DEFENDANT’S STATEMENTS AT SENTENCING RAISED THE INTOXICATION DEFENSE REQUIRING FURTHER INQUIRY BY THE COURT, ISSUE CONSIDERED AS AN EXCEPTION TO THE PRESERVATION REQUIREMENT, CONVICTION BY GUILTY PLEA REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea,  determined defendant’s statements at sentencing, indicating that he was intoxicated at the time he committed the crimes (assault), required further inquiry by the court. The Third Department noted that the issue constitutes an exception to the preservation requirement:

The statements made by defendant at sentencing, which raised the possibility of an intoxication defense and called into question the intent element of assault in the first degree (see Penal Law § 120.10 [1]), were sufficient to trigger the narrow exception to the preservation requirement, thereby imposing a duty of further inquiry upon County Court “to ensure that defendant’s guilty plea was knowing and voluntary” … . … [D]efendant did not say anything during the course of the plea colloquy that suggested a possible intoxication defense  … , and defendant’s statements at sentencing contradicted his sworn admissions during the plea colloquy … . However, “statements made by a defendant that negate an element of the crime to which a plea has been entered, raise the possibility of a [particular] defense or otherwise suggest an involuntary plea require[] the trial court to then conduct a further inquiry or give the defendant an opportunity to withdraw the plea” … . County Court did not pursue either of those avenues here. People v Skyers, 2019 NY Slip Op 05233, Third Dept 6-27-19

 

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