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ALTHOUGH DEFENDANT WAS WARNED HE WOULD BE SENTENCED EVEN IF HE DIDN’T APPEAR AT SENTENCING, THE JUDGE SHOULD NOT HAVE SENTENCED DEFENDANT IN ABSENTIA WITHOUT FIRST INQUIRING INTO THE REASON AND WHETHER DEFENDANT COULD BE LOCATED (THIRD DEPT).

The Third Department, vacating the defendant’s sentence, determined defendant should not have been sentenced in absentia:

Defendant had a waivable right to be present at sentencing, and he was indisputably informed of that right “and of the consequences for failing to appear, including the fact that the proceedings would go forward in his . . . absence” … . Nevertheless, “before proceeding in the absence of a defendant who fails to appear, the court must conduct an inquiry into the reason for the absence and consider whether the defendant could be located within a reasonable period of time” … . County Court did not make that inquiry and, indeed, rejected defense counsel’s request for an adjournment to look into the reasons for defendant’s absence. Thus, County Court erred in sentencing defendant in absentia … . People v Cutler, 2019 NY Slip Op 04504, Third Dept 6-619

 

COUNTY COURT SHOULD NOT HAVE DETERMINED THE INTEGRITY OF THE GRAND JURY WAS COMPROMISED BY THE PROSECUTOR’S FAILURE TO INQUIRE FURTHER INTO THE POTENTIAL BIAS OF A GRAND JUROR, A TEACHER, WHO HAD TAUGHT THE DEFENDANT TEN YEARS BEFORE, INDICTMENT REINSTATED (THIRD DEPT).

The Third Department, reversing County Court, determined, on the People’s appeal, that the integrity of the grand jury was not affected by the prosecutor’s alleged failure to inquire about the potential bias of a grand juror. One of the grand jurors was a teacher and the defendant had been his student 10 years before:

“Dismissal of an indictment pursuant to CPL 210.35 (5) is a drastic, exceptional remedy and should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the grand jury” . “The likelihood of prejudice turns on the particular facts of each case, including the weight and nature of the admissible proof adduced to support the indictment and the degree of inapp… ropriate prosecutorial influence or bias” … . Prejudice may arise based upon a close relationship between a grand juror and a witness … . …

The record discloses that one of the grand jurors knew one of the testifying witnesses. The grand juror, who used to be a teacher and had been retired for 10 years, stated that the witness was a former student and that he had not seen the witness since the student left his class. The grand juror was then asked whether there was anything else that would affect his ability to be fair and impartial, to which he responded, “No.” In our view, the relationship between the grand juror and the witness was not a close relationship so as to give rise to the possibility of prejudice … . Furthermore, although the prosecutor’s voir dire of the grand juror was brief, we are satisfied that, based upon his unequivocal response thereto, the grand juror’s impartiality was not compromised … . People v Henriquez, 2019 NY Slip Op 04503, Third Dept 6-6-19

 

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THE COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER DEFENDANT WAS INFORMED BY DEFENSE COUNSEL OF A PLEA OFFER WHICH WAS MORE LENIENT THAN THE OFFER TO WHICH HE PLED (THIRD DEPT).

The Third Department, reversing County Court, determined that the court should have held a hearing to determine whether defendant was informed of a plea offer by defense counsel. Defendant argued the failure to inform him of the plea offer, which was more lenient than the offer to which he pled, constituted ineffective assistance of counsel:

To make out “an ineffective assistance of counsel claim based upon the defense counsel’s failure to adequately inform the defendant of a plea offer,” a defendant must show “that the People made the plea offer, that the defendant was not adequately informed of the offer, that there was a reasonable probability that the defendant would have accepted the offer had counsel adequately communicated it to him [or her], and that there was a reasonable likelihood that neither the People nor the court would have blocked the alleged agreement” … . …

There is no dispute that the People made a preindictment plea offer more lenient than the one that defendant later accepted — an offer that the People presumably extended “in a fair and honest manner” and believed would pass muster with County Court … — and that the offer was rejected and withdrawn. Defendant averred that he did not know about this offer and would have accepted it. People v Nitchman, 2019 NY Slip Op 04501, Third Dept 6-6-19

 

THE SUPERIOR COURT INFORMATION (SCI) DID NOT INCLUDE THE TIME OF THE OFFENSE AND WAS THEREFORE JURISDICTIONALLY DEFECTIVE (THIRD DEPT).

The Third Department reversed defendant’s conviction and dismissed the Superior Court Information (SCI) because there was no reference to the time of the offense:

A waiver of indictment must be executed in strict compliance with the requirements of CPL 195.20, which provides, as pertinent here, that it shall include the “approximate time . . . of each offense to be charged in the [SCI]” … . Although “courts may read both [the SCI and the waiver of indictment] together, as a single document, to satisfy the requirements of CPL 195.20,” it is undisputed that here neither contained any reference to the time of the offense … . Further, 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” … . Indeed, a specific time was provided in the felony complaint. People v Vaughn, 2019 NY Slip Op 04500, Third Dept 6-6-19

 

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DEFENDANT WAS NOT ADEQUATELY INFORMED OF THE RISKS OF CONTINUING TO BE REPRESENTED BY DEFENSE COUNSEL IN THE PLEA PROCEEDINGS AFTER THE JUDGE AND DEFENSE COUNSEL WERE INFORMED DEFENSE COUNSEL’S FORMER AND CURRENT CLIENTS WOULD BE WITNESSES AT DEFENDANT’S TRIAL, DEFENDANT WAS THEREBY DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL (THIRD DEPT).

The Third Department determined the judge did not adequately inform defendant of the risks of continuing to be represented by defense counsel in the plea proceedings after defense counsel and the judge had been informed of a conflict of interest should the matter go to trial. Several persons who would be called as witnesses by the People were former or current clients of defense counsel:

Once informed of the conflict, County Court had a duty to inquire whether defendant understood the risks of defense counsel’s continued representation and, knowing those risks, was choosing to waive the conflict … . However, the court did not make such an inquiry. Rather, the court merely informed defendant, while simultaneously reiterating the plea agreement that defense counsel had secured for him, that defense counsel would “probably” have a conflict if the matter continued. Therefore, defense counsel’s conflicted representation of defendant, absent a proper and informed waiver, deprived defendant of his right to the effective assistance of counsel … . People v Marshall, 2019 NY Slip Op 04499, Third Dept 6-6-19

 

THE SENTENCING COURT DID NOT FOLLOW THE CORRECT PROCEDURE FOR DETERMINING WHETHER DEFENDANT WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS; EVEN WHERE THE DEFENDANT COMMITTED AN ARMED FELONY, WHICH CAN DISQUALIFY A DEFENDANT FROM THE STATUS, THE STATUTORY FACTORS WHICH WOULD NONETHELESS ALLOW YOUTHFUL OFFENDER STATUS MUST BE CONSIDERED AND PLACED ON THE RECORD (THIRD DEPT).

The Third Department determined Supreme Court did not follow the correct procedure with respect to whether the defendant should be afforded youthful offender status. Although the defendant pled guilty to an armed felony, which can render him ineligible for youthful offender status, the court was required to consider the factors which would render him eligible despite the armed felony and to do so on the record:

… [T]he Court of Appeals has held that, “when a defendant has been convicted of an armed felony . . ., and the only barrier to his or her youthful offender eligibility is that conviction, the court is required to determine on the record whether the defendant is an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10 (3). The court must make such a determination on the record ‘even where the defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request’ pursuant to a plea bargain”… . If the court determines that the offender is not an eligible youth, the inquiry is at an end; however, “if the court determines that the defendant is an eligible youth based on the presence of one or more of the CPL 720.10 (3) factors, . . . [t]he court [then] must exercise its discretion a second time to determine whether the eligible youth should be granted youthful offender treatment pursuant to CPL 720.20 (1)” … . …

The record before us does not conclusively establish that Supreme Court reached a determination, as required by CPL 720.10, regarding defendant’s eligibility for youthful offender treatment in the first instance. The court made no mention of the factors set forth in CPL 720.10 (3) and, instead of first determining defendant’s eligibility for youthful offender treatment pursuant to that statute, appears to have moved to the second step and determined that youthful offender treatment was inappropriate under CPL 720.20. People v Colon, 2019 NY Slip Op 04498, Third Dept 6-6-19

 

A SUPERIOR COURT INFORMATION (SCI) IS NOT AN APPROPRIATE CHARGING DOCUMENT AFTER AN INDICTMENT HAS COME DOWN; IN ADDITION THE SCI HERE WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE THE ORIGINAL CHARGE OR A LESSER INCLUDED OFFENSE (THIRD DEPT).

The Third Department, reversing County Court and dismissing the Superior Court Information (SCI), determined the SCI was an improper vehicle for defendant’s guilty plea because the grand jury had already handed down an indictment. In addition the SCI was jurisdictionally defective because it did not include the original charge or a lesser included offense:

CPL 195.10 (2) (b) provides that a defendant may waive indictment and consent to be prosecuted by a SCI in “the appropriate superior court, at any time prior to the filing of an indictment by the grand jury.” However, “waiver of indictment attempted after a [g]rand [j]ury actually indicts is generally invalid under CPL 195.10 (2) (b) because the plain words of the statute require a waiver be made prior to the filing of an indictment” … .

It is well settled that the general purpose and objectives of constitutional and statutory boundaries with respect to the waiver of indictment are to permit a defendant “to go directly to trial without waiting for a grand jury to hand up an indictment, [thereby] affording a defendant the opportunity for a speedier disposition of charges [and] eliminating unnecessary [g]rand [j]ury proceedings” … . When the grand jury has already acted, and those motivations are no longer present, waiver of indictment is not authorized, even where defendant has consented to the devised procedure … .

Here, an indictment had been filed — to which defendant pleaded guilty — prior to defendant agreeing to be prosecuted by way of an SCI. Although the indictment was subsequently dismissed, the dismissal was not due to any defect requiring such dismissal (see CPL 210.20), County Court did not authorize resubmission of the charge to the grand jury (see CPL 210.45 [9]) and a new felony complaint was never filed. Therefore, defendant was not placed on a formal preindictment procedural track … . People v Eggleston, 2019 NY Slip Op 04497, Second Dept 6-6-19

 

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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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