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THE PARKER WARNINGS DID NOT SPECIFICALLY WARN DEFENDANT HIS SENTENCE WOULD BE ENHANCED IF HE WERE ARRESTED BETWEEN THE PLEA AND SENTENCING, DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO CHALLENGE THE ENHANCED SENTENCE ON THAT GROUND, MATTER REMITTED FOR SENTENCING TO THE AGREED TERM OR FOR AN OPPORTUNITY FOR DEFENDANT TO WITHDRAW HIS PLEA (THIRD DEPT).

The Third Department, reversing County Court, determined the Parker warnings [notifying defendant of the enhanced sentencing consequences of misconduct between the plea and the sentencing] were inadequate and defendant’s counsel was ineffective for not raising the issue. Defendant’s sentence was five years longer than the sentence promised at the time of the plea because he was rearrested. The Parker warnings did not clearly inform defendant his sentence would be enhanced if he was rearrested. The failure to preserve the error was excused because of the ineffective assistance. The Parker warnings, in relevant part, were as follows: ” COURT: Don’t get in any trouble at the jail, don’t get rearrested, don’t get involved with contraband, or break the law, or anything like that in jail, you can do that? DEFENDANT: Yes, sir COURT: Thirdly, the [P]robation [D]epartment is going to be in to see you. They are going to do a presentence report. I ask you to be cooperative with them and honest with them and continue to express the remorse that you show here today because if you don’t cooperate with them, and if you are not honest with them, or if you don’t continue to accept remorse and responsibility for what you did then your plea will stand and I will be free to impose a sentence of 25 years to life and say things to make sure that you never see parole, so, please, cooperate with your probation officer:”

… [C]ounsel was ineffective for failing to challenge the enhanced sentence on the ground that County Court did not insure that defendant was fully aware of the consequences of being rearrested prior to sentencing. A successful challenge to the enhanced sentence would have resulted in County Court having to either impose the agreed-upon sentence or provide defendant with an opportunity to withdraw his plea … . … People v Hunter, 2019 NY Slip Op 04496, Third Dept 6-6-19

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DEFENDANT’S REQUEST TO REPRESENT HIMSELF WAS PROPERLY DENIED AND THERE WAS SUPPORT IN THE RECORD FOR THE EXISTENCE OF PROBABLE CAUSE TO ARREST (CT APP).

The Court of Appeals, affirming defendant’s conviction, determined the defendant’s request to proceed pro se was properly denied and there was support in the record for the existence of probable cause to arrest. The Court of Appeals did not discuss the facts. The link to the 2nd Department decision is here:

The trial court concluded—based upon, among other things, its own observations of defendant’s conduct throughout these lengthy proceedings and the testimony of defendant’s attending physician—that defendant engaged in malingering insofar as he was competent to proceed but persisted in his efforts to avoid trial. Inasmuch as defendant “engaged in conduct which would prevent the fair and orderly exposition of the issues,” we conclude that the trial court did not abuse its discretion in denying defendant’s request to proceed pro se …. Moreover, the existence of record support for the determination of the courts below that the pursuit of defendant by the police was justified by a “reasonable suspicion” of criminal activity forecloses our further review of that issue … . People v Gregory, 2019 NY Slip Op 04450, CtApp 6-6-19

 

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THE FACTUAL ALLEGATIONS IN THIS COMMON LAW DRIVING WHILE INTOXICATED CASE WERE SUFFICIENT TO ALLEGE DEFENDANT WAS THE OPERATOR OF THE VEHICLE, APPELLATE TERM REVERSED (CT APP).

The Court of Appeals, reversing the Appellate Term, determined the “factual allegations in the accusatory instrument were sufficient to support the inference that defendant was the operator of the vehicle involved in the accident and, thus, Appellate Term erroneously dismissed the accusatory instrument on that ground.” The facts of the case were not described. The Appellate Term decision is: People v Esposito (Monique) 2018 NY Slip Op 28245 Decided on August 3, 2018 Appellate Term, 2nd Department. People v Esposito, 2019 NY Slip Op 04448, CtApp 6-6-19

 

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THE DEFENSE MADE A PRIMA FACIE SHOWING THAT THE MISSING WITNESS JURY INSTRUCTION WAS APPROPRIATE, THE TRIAL COURT IMPROPERLY PLACED THE BURDEN TO DEMONSTRATE THE WITNESS’S TESTIMONY WOULD NOT BE CUMULATIVE ON THE DEFENDANT, THE PEOPLE DID NOT MEET THEIR BURDEN TO DEMONSTRATE THE TESTIMONY WOULD BE CUMULATIVE (CT APP).

The Court of Appeals, reversing defendant’s conviction, reversing the Appellate Division, in a full-fledged opinion by Judge Feinman, determined that the trial court’s analysis of the defense request for a missing witness jury instruction improperly shifted the burden to the defendant to show that the testimony would not be cumulative. The witness, Dees, was with the shooting victim and was shot himself. The witness was the first to see the shooter in a car that passed by and tried to push the shooter away when the shooter approached:

In Gonzalez [68 NY2d 424], we established the analytical framework for deciding a request for a missing witness instruction. The proponent initially must demonstrate only three things via a prompt request for the charge: (1) “that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case,” (2) “that such witness can be expected to testify favorably to the opposing party,” and (3) “that such party has failed to call” the witness to testify … . The party opposing the charge can defeat the initial showing by accounting for the witness’s absence or demonstrating that the charge would not be appropriate … . “This burden can be met by demonstrating,” among other things, that “the testimony would be cumulative to other evidence” … . If the party opposing the charge meets its burden by rebutting the prima facie showing, the proponent retains the ultimate burden to show that the charge would be appropriate … . We have repeatedly reiterated Gonzalez’s specific burden-shifting analysis … , but we have never required the proponent of a missing witness charge to negate cumulativeness to meet the prima facie burden … . * * *

Given that defendant, as the proponent of the missing witness charge, met his initial burden, the People were required to rebut that showing by establishing why the charge was inappropriate. They failed to do so. The People simply asserted, without explanation, that Dees’s testimony on the issue of identification would be cumulative because “there is absolutely no indication that [Dees] would be able to provide anything that wasn’t provided by [the victim].” This conclusory argument was insufficient to satisfy the People’s burden in response to defendant’s prima facie showing … . … Dees’s testimony would not have been “trivial or cumulative”; due to inconsistencies in the victim’s descriptions of the incident and what the shooter was wearing, the issue of identification was “in sharp dispute . . . and the testimony of the only additional person who was present [during the shooting] might have made the difference” … . People v Smith, 2019 NY Slip Op 04447, CtApp 6-6-19

 

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IT WAS REVERSIBLE ERROR TO ADMIT A WITNESS’S GRAND JURY TESTIMONY, THE WITNESS’S CLAIM HE COULD NOT REMEMBER THE EVENTS WAS NOT SO DAMAGING TO THE PEOPLE’S CASE AS TO ALLOW THE GRAND JURY EVIDENCE FOR IMPEACHMENT PURPOSES (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that admitting the grand jury testimony of a witness was reversible error. The witness’s testimony at trial that he couldn’t remember the events was not so damaging to the People’s case as to justify impeachment:

The People concede that the trial court erred in admitting the grand jury testimony of a witness indicating that defendant fired an errant shot that struck a bystander as defendant and a companion fled from another group following a verbal altercation. Specifically, the People acknowledge that the testimony was not admissible under the past recollection recorded exception to the hearsay rule, because the witness did not testify at trial that the grand jury testimony “correctly represented his knowledge and recollection when made” … , and was not admissible for impeachment purposes under CPL 60.35 because the witness’s trial testimony that he could not remember the relevant events did not “affirmatively damage[] the case of the party calling him” … . People v Folk, 2019 NY Slip Op 04321, First Dept 6-4-19

 

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CLAIMANT’S CONVICTION FOR THE UNLAWFUL MANUFACTURE OF METHAMPHETAMINES DID NOT CONSTITUTE PROOF THAT CLAIMANT PERFORMED WORK OR MADE FALSE STATEMENTS REGARDING WORK SUCH THAT CLAIMANT SHOULD BE DISQUALIFIED FROM RECEIVING BENEFITS UPON RELEASE FROM PRISON (THIRD DEPT).

The Third Department determined that claimant’s conviction for the unlawful manufacture of methamphetamine did not constitute work within the meaning of Workers’ Compensation Law 114-a. Therefore, claimant did not perform any work or make any false statements regarding work which would disqualify him from receiving benefits upon release from prison:

Workers’ Compensation Law § 114-a (1) provides, in relevant part, that “[i]f for the purpose of obtaining compensation . . ., or for the purpose of influencing any determination regarding any such payment, a claimant knowingly makes a false statement or representation as to a material fact, such person shall be disqualified from receiving any compensation directly attributable to such false statement or representation.” “In making such a determination, the Board is the sole arbiter of witness credibility and its determination as to whether a claimant violated Workers’ Compensation Law § 114-a will be upheld if supported by substantial evidence” … .

To be guilty of unlawful manufacture of methamphetamine in the third degree, a person must possess, at the same time and location, “[t]wo or more items of laboratory equipment and two or more precursors, chemical reagents or solvents in any combination,” with the intent to use such products to unlawfully manufacture, prepare, or produce methamphetamine, or knowing that another intends to do so (Penal Law § 220.73 [1]). The elements of the crime do not require that any work be performed. Substantial evidence supports the Board’s finding that the conviction alone is insufficient to establish any work activity by claimant or that he received any type of remuneration … . Matter of Stone v Saulsbury/Federal Signal, 2019 NY Slip Op 04250, Third Dept 5-30-19

 

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DEFENSE COUNSEL MISCALCULATED THE NUMBER OF DAYS OF DELAY ATTRIBUTABLE TO THE PEOPLE IN THE SPEEDY TRIAL MOTION, WHICH CONSTITUTED INEFFECTIVE ASSISTANCE, CONVICTION REVERSED, INDICTMENT DISMISSED (FIRST DEPT).

The First Department, reversing defendant’s conviction and dismissing the indictment, determined defense counsel’s failure to properly calculate the days of delay attributable to the People for the speedy trial motion constituted ineffective assistance:

Defendant was denied the effective assistance of counsel … with regard to his speedy trial motion. In his CPL 30.30(2) motion for defendant’s release, defense counsel mistakenly calculated 99 days of includable time, instead of the correct calculation of 103 days. The People conceded the 99 days, and the court released defendant. When defense counsel thereafter moved to dismiss the indictment under CPL 30.30(1), defense counsel and the prosecutor repeated that error in calculating the delay as 99 days, with the court ultimately finding only 181 days of includable time and denying the motion. Had counsel correctly calculated 103 days of chargeable time, the includable time would have totaled 185 days, rather than 181, and defendant’s speedy trial claim would have been meritorious. We have considered and rejected the People’s arguments concerning the 63-day period following defendant’s uncontested motion for release from custody, which the court found to be includable in its ultimate calculation on the dismissal motion. People v Coulibaly, 2019 NY Slip Op 04289, First Dept 5-30-19

 

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WAIVER OF APPEAL INVALID, COURT NOT BOUND BY PURPORTED COMMITMENT TO A PARTICULAR SENTENCE AT THE TIME OF THE PLEA, PRESENTENCE REPORT INADEQUATE, SENTENCE REVERSED (SECOND DEPT). ​

The Second Department, reversing defendant’s sentence and remitting for resentencing, determined defendant’s waiver of appeal was invalid and the sentencing court did not have sufficient information about the defendant at the time of sentencing. The presentence investigation report was incomplete, in part because there was no interpreter available. The Second Department further determined that the sentencing court could not be bound by a purported commitment to the prosecutor at the time of the plea to impose a particular sentence:

Given the defendant’s inexperience with the criminal justice system, the Supreme Court’s terse colloquy at the plea allocution was insufficient to advise the defendant of the nature of the right to appeal … . There is no indication in the record that the defendant understood the distinction between the right to appeal and the other trial rights that are forfeited incident to a plea of guilty … . Although the defendant signed a written waiver of the right to appeal, nothing in the record demonstrates that the document was translated for the defendant, who required the use of a Sinhala interpreter, before it was presented to him for signature … . …

“…. [A] sentence negotiated prior to the plea, and in most cases prior to receipt of a presentence report, does not automatically become the sentence of the court” … . The determination of an appropriate sentence requires the court to exercise its discretion “after due consideration given to, among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence” … . …

Most troubling … is that in preparing the presentence investigation report for the Supreme Court in advance of sentencing, the Department of Probation did not interview the defendant because it was “unable to secure an interpreter” on two scheduled dates for an interview. Thus, the presentence investigation report does not contain any information regarding the defendant’s mental status, educational background, employment history, or military background. The report indicates that the defendant’s physiological health was “unknown,” and that his psychological condition was “unavailable.” Even though the Department of Probation did not interview the defendant, the report indicates that the defendant “reported no use of controlled substances and/or alcohol.”

Under the circumstances here, the information contained in the record of the plea proceeding, the sentencing proceeding, and the presentence investigation report was insufficient for a sentencing court to exercise discretion in determining an appropriate sentence. People v Pelige, 2019 NY Slip Op 04204, Second Dept 5-29-19

 

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PETITIONER, WHO CONSENTED TO PROVIDING A DNA SAMPLE AFTER ARREST, MAY SEEK DISCRETIONARY EXPUNGEMENT OF THE DNA PROFILE AND UNDERLYING DOCUMENTS UPON BEING ADJUDICATED A YOUTHFUL OFFENDER, RESPONDENT JUDGE DIRECTED TO DECIDE WHETHER EXPUNGEMENT IS APPROPRIATE UNDER THE FACTS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, granted a writ of mandamus directing the respondent-judge to consider whether the expungement of DNA evidence derived from a sample provided with petitioner’s consent after arrest is appropriate. The petitioner was subsequently adjudicated a youthful offender (YO) and sought expungement on that ground. The DNA evidence is maintained by the New York City Office of Chief Medical Examiner (OCME). The First Department concluded that the OCME is subject to the State Executive Law and a court has the discretionary authority to expunge the YO’s DNA profile from the SDIS (index system used for mutual exchange, use and storage of DNA records), along with the underlying DNA records:

[Re: the propriety of the Article 78 proceeding:] In the absence of an available remedy at law (see CPL 450.20), the important issues raised on this appeal will escape this Court’s review unless this petition proceeds … . Moreover, this Court has original jurisdiction over the issues raised because they concern a sitting justice (CPLR 506[b][1]; 7804[b] …). …

There is abundant support for the conclusion that OCME’s responsibilities in testing, analyzing and retaining DNA data is subject to the State Executive Law. Respondent’s arguments that the statutory reference to a “state” DNA identification index in Article 49-B necessarily excludes a local DNA laboratory like that the one operated by OCME, is unavailing. …

… [W]e hold that the same discretion afforded to a court under the Executive Law to expunge DNA profiles and related records when a conviction is vacated may also be exercised where, as here, a YO disposition replaces a criminal conviction. The motion court, in finding that, as a matter of law, it had no discretion, failed to fulfill its statutory mandate to consider whether in the exercise of discretion, expungement of petitioner’s DNA records was warranted in this case. …

Petitioner did not, either expressly or by implication, waive the privilege of nondisclosure and confidentiality by providing his DNA before the court made its determination that he was eligible for YO status. Clearly the Executive Law permits an adult who has voluntarily given his or her DNA in connection with a criminal investigation the right to seek discretionary expungement where a conviction had been reversed or vacated. A youthful offender does not have and should not be afforded fewer pre-YO adjudication protections than an adult in the equivalent circumstances. Matter of Samy F. v Fabrizio, 2019 NY Slip Op 04120, First Dep 5-28-19

 

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THE TERM ‘AUTOMATIC OVERRIDE’ DOES NOT MANDATE THAT AN OFFENDER WITH A PRIOR SEX-CRIME FELONY BE CLASSIFIED A LEVEL THREE SEX OFFENDER, BOTH COUNTY COURT AND DEFENSE COUNSEL MISUNDERSTOOD THE TERM (THIRD DEPT). ​

The Third Department, reversing County Court, determined that both County Court and defense counsel misunderstood the meaning of “automatic override” in the context of whether an offender who has a prior felony sex-crime conviction mandates a level three classification:

… [T]he use of the words “automatically” or “automatic override” does not mandate that a particular individual be classified as a risk level three sex offender; rather, the “automatic” nature of the override results in a presumptive risk level three classification — a classification from which a court indeed may depart based upon the evidence presented … . Thus, “the application of the override for a prior felony sex crime is presumptive, not mandatory or automatic” … , and “[t]reating the presumptive override as mandatory is a ground for reversal” … .  …

Defense counsel’s misunderstanding of the override — as evidenced by his erroneous statement that defendant’s prior felony conviction for a sex crime resulted in “an automatic override” to a risk level three classification — deprived defendant of the opportunity to present factors in support of a downward departure; similarly, County Court’s misapplication of the override — premised upon the court’s mistaken belief that “a mandatory override to a risk level [three] status” was “required” — foreclosed any inquiry into whether the presumptive risk level three classification was in fact warranted … . People v Jones, 2019 NY Slip Op 04060, Third Dept 5-22-19

 

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