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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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PUBLIC DEFENDER’S OFFICE REPRESENTED DEFENDANT AND THE CONFIDENTIAL INFORMANT, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined that the public defender’s office represented both the defendant and the confidential informant (CI) creating a conflict of interest. Although the issue was apparently not preserved, the appellate court considered the issue in the interest of justice:

“A defendant is denied the right to effective assistance of counsel guaranteed by the Sixth Amendment when, absent inquiry by the court and the informed consent of [the] defendant, defense counsel represents interests which are actually in conflict with those of [the] defendant” … . “Discussions of the effect of a lawyer’s conflict of interest on a defendant’s right to the effective assistance of counsel distinguish between a potential conflict and an actual conflict” … . “An actual conflict exists if an attorney simultaneously represents clients whose interests are opposed and, in such situations, reversal is required if the defendant does not waive the actual conflict. In contrast, a potential conflict that is not waived by the accused requires reversal only if it operates on or affects the defense” … .

Here, the People concede that the Public Defender’s office was simultaneously representing both defendant and the CI during the pendency of this criminal action, and defendant and the CI had opposing interests. Inasmuch as defendant never waived the conflict, reversal of the judgment is warranted … . People v Palmer, 2019 NY Slip Op 05228, Third Dept 6-27-19

 

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DEFENDANT’S APPLICATION FOR A DOWNWARD DEPARTURE SHOULD HAVE BEEN CONSIDERED, INSTEAD THE APPLICATION WAS DISMISSED AS ‘PREMATURE,’ MATTER REMITTED (SECOND DEPT).

The Second Department Supreme Court should have considered defendant’a application for a downward departure and remitted the matter:

The Supreme Court is required to make a determination with respect to a defendant’s risk level 30 calendar days prior to discharge, parole, or release (see Correction Law § 168-n). As part of its determination with respect to a defendant’s risk level, the court may depart downwardly from the presumptive risk level. A defendant seeking a downward departure from the presumptive risk level has the initial burden of “(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” … . If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant’s dangerousness and risk of sexual recidivism … .

As the People correctly concede, the Supreme Court should not have denied the defendant’s application for a downward departure as premature, but instead, should have addressed the merits of the application … . People v Powell, 2019 NY Slip Op 05170, Second Dept 6-26-19

 

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