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COUNTY COURT COULD NOT LEGALLY FULFILL THE SENTENCING PROMISE THAT INDUCED DEFENDANT’S GUILTY PLEA, PLEA VACATED AND THE MATTER REMITTED FOR THE IMPOSITION OF A SENTENCE WHICH COMPORTS WITH DEFENDANT’S EXPECTATIONS (FOURTH DEPT).

The Fourth Department determined defendant’s guilty plea was induced by a sentencing promise County Court could not fulfill. The plea was vacated and the matter was remitted for imposition of a sentence that comports with defendant’s expectations:

Penal Law § 70.30 (3) provides that “the maximum term of an indeterminate sentence imposed on a person shall be credited with and diminished by the amount of time the person spent in custody prior to the commencement of such sentence as a result of the charge that culminated in the sentence.” Penal Law § 70.30 (3) further provides that “[i]n the case of an indeterminate sentence, if the minimum period of imprisonment has been fixed by the court . . . , the credit shall also be applied against the minimum period.” That credit, however, “shall not include any time that is credited against the term . . . of any previously imposed sentence . . . to which the person is subject” … . Thus, “a person is prohibited from receiving jail time credit against a subsequent sentence when such credit has already been applied to time served on a previous sentence’ ” … . Inasmuch as defendant was serving a sentence on a prior conviction throughout the instant proceedings, the court could not legally fulfill its promise to credit defendant’s jail time against his sentence in this matter.

It is well established that “[a] guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” … . “Where, as here, the originally promised sentence cannot be imposed in strict compliance with the plea agreement, the sentencing court may impose another lawful sentence that comports with the defendant’s legitimate expectations” … . People v Mccullen, 2019 NY Slip Op 03180, Fourth Dept 4-26-19

 

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FOR CAUSE JUROR CHALLENGES SHOULD HAVE BEEN GRANTED, JURORS COULD NOT UNEQUIVOCALLY STATE THEY COULD PUT ASIDE THEIR RESERVATIONS AND BE FAIR AND IMPARTIAL, BECAUSE THERE WILL BE A NEW TRIAL AND BECAUSE AN APPELLATE COURT CANNOT CONSIDER ISSUES NOT RULED UPON BY THE TRIAL COURT, THE TRIAL COURT WAS DIRECTED TO CONSIDER TWO EVIDENTIARY ISSUES, ONE RAISED BY THE PEOPLE, AND ONE RAISED BY THE DEFENSE (FOURTH DEPT).

The Fourth Department reversed defendant’s conviction because for cause challenges to two jurors were denied. Neither juror gave unequivocal assurances that she could be fair and impartial, in fact one juror expressly said she would continue to think defendant was involved based solely on his presence in the courtroom. In the interest of judicial economy, because there will be a new trial, the Fourth Department indicated the court erred in finding defendant’s cell phone was lawfully seized from defendant’s vehicle incident to arrest to protect evidence in defendant’s grabbable area from destruction or concealment. The Fourth Department noted it could not consider the People’s argument the cell phone was lawfully seized pursuant to the automobile exception to the warrant requirement because Supreme Court didn’t rule on that issue. The Fourth Department directed Supreme Court to make a ruling. The Fourth Department further directed Supreme Court to rule on whether an unavailable witness’s hearsay statement should be admitted pursuant to defendant’s rights to put on a defense and due process. Defendant had raised that issue but Supreme Court did not rule on it. With respect to the for cause juror challenges, the court wrote:

“It is well settled that a prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the [prospective] juror states unequivocally on the record that he or she can be fair and impartial’ “… . Although CPL 270.20 (1) (b) “does not require any particular expurgatory oath or talismanic’ words . . . , [a prospective] juror[] must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent [him or her] from reaching an impartial verdict” … . People v Clark, 2019 NY Slip Op 03231, Fourth Dept 4-26-19

 

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ALTHOUGH THE PRIVATE CITIZEN WAS ACTING AS AN AGENT FOR THE POLICE WHEN SHE RECORDED DEFENDANT’S ADMISSION TO MURDER, DEFENDANT WAS NOT ENTITLED TO A 710.30 NOTICE BECAUSE THE STATEMENT WAS VOLUNTARILY MADE AND NOT SUBJECT TO SUPPRESSION, TWO -JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that the failure to provide a CPL 710.30 notice of a statement made by defendant to a private citizen was a mere irregularity, not reversible error, because the statement was not involuntarily made, and therefore was not subject to suppression. The two dissenters argued that it was possible the defendant was induced to make the statement by the promise of sexual relations with the private citizen. Because there was a colorable basis for suppression, the dissenters argued, the defendant was entitled to notice and a hearing. In the recorded statement the defendant admitted to committing murder and explained the details. The decision is extensive and addresses several other substantive issues: (1) Defendant was not entitled to Miranda warnings because he was not subjected to custodial interrogation in that he was incarcerated on another matter when he was questioned and no added constraints were imposed; (2) The prosecutor provided race-neutral explanations for challenges to jurors—one juror’s father and brother had criminal convictions—another juror acknowledged reading books by a writer with anti-police and anti-establishment views; (3) The testimony by a medical examiner who did not conduct the autopsy did not violate defendant’s right of confrontation; and (4) The defendant’s request for an accomplice jury instruction was properly denied because there was no question whether the witness participated in the offense. With respect to the statement recorded by a private citizen for which no 710.30 notice was provided, the court wrote:

… [W]e agree with our dissenting colleagues that the citizen in this case was acting as a police agent at the time she recorded the statements inasmuch as she was acting “at the instigation of the police . . . to further a police objective” … .

We respectfully disagree with our dissenting colleagues, however, on the issue whether the failure to provide the CPL 710.30 notice warrants preclusion of those statements. We conclude that it does not. Where, as here, there is “no colorable basis for suppression of the statement, the failure to give notice [constitutes] a mere irregularity not warranting preclusion” … . In our view, there is no colorable basis for suppression of defendant’s statements to the private citizen. There is no dispute that defendant voluntarily went to the citizen’s home and that he was interested in pursuing a romantic relationship with her. During the entire conversation, wherein defendant admitted committing the homicide, the private citizen made no explicit or implicit promises that she would engage in sexual relations with defendant. Rather, it was defendant who offered to tell her anything she wanted to know after she expressed that she was afraid of him, and then provided her with all of the details concerning the homicide. We thus conclude that the private citizen did not make any statement or engage in any conduct that “create[d] a substantial risk that . . . defendant might falsely incriminate himself”… . ​People v Albert, 2019 NY Slip Op 03227, Fourth Dept 4-26-19

 

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DEFENDANT’S CONVICTIONS FOR PREDATORY SEXUAL ASSAULT AGAINST A CHILD AND RAPE AFFIRMED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE DISSENT, APPLYING A WEIGHT OF THE EVIDENCE ANALYSIS, ARGUED THE EVIDENCE DID NOT RISE TO THE LEVEL OF BEYOND A REASONABLE DOUBT (FOURTH DEPT).

The Fourth Department, in an extensive, fact-specific decision, over a dissent, affirmed defendant’s predatory sexual assault against a child and rape first degree convictions. The child was four when the alleged incident occurred and 11 at the time of the third trial. There was a hung jury in the first trial and the conviction after the second trial was reversed based upon the judge’s handling of a jury note. The principal physical evidence was sperm found on the child’s underwear. No semen was found on the underwear or on the child. There was no injury to the child’s genitals. The defense theory was that the sperm was transferred to the child’s underwear during a wash. The People’s expert testified such a transfer was possible. The appeal came down to a weight of the evidence analysis. The dissent argued the proof did not rise to the level of beyond a reasonable doubt, noting the absence of semen, the lack of injury, the victim’s poor memory and implausible description of the rape, the victim’s affirmative response to the prosecutor’s mistaken question about a second rape (the prosecutor mistakenly thought the two counts of rape in the indictment alleged two separate incidents), and the fact that defendant had no criminal record and no other allegation of inappropriate sexual conduct had ever been made against him. People v Garrow, 2019 NY Slip Op 03238, Fourth Dept 4-26-19

 

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STATEMENT MADE BY THE ASSAULT VICTIM 12 TO 15 MINUTES AFTER THE ASSAULT WAS PROPERLY ADMITTED AS AN EXCITED UTTERANCE (FOURTH DEPT).

The Fourth Department determined a statement made by the victim of an assault 12 to 15 minutes after the assault was admissible under the excited utterance exception to the hearsay rule:

Defendant contends … that County Court erred in permitting a prosecution witness to testify that the victim told him that “the man he was fighting with was the one that cut him” because that statement did not fall under the excited utterance exception to the rule against hearsay. We reject that contention. The victim made the statement approximately 12 to 15 minutes after the assault and while he was being treated in the prison’s infirmary. Testimony at trial established that, at the time of the statement, the victim appeared to be “emotional,” “mad,” “angry,” and “very agitated.” The statement qualified as an excited utterance inasmuch as that statement was “made shortly after the [assault and] . . . while [the victim] was under the extraordinary stress of [his] injuries” … . People v Farrington, 2019 NY Slip Op 03237, Fourth Dept 4-26-19

 

POSTREADINESS DELAY BECAUSE A PROSECUTION WITNESS WAS ON VACATION WAS CHARGEABLE TO THE PEOPLE, DEFENDANT’S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined a period of postreadiness delay because a prosecution witness was on vacation was chargeable to the People and the defendant’s speedy trial motion should have been granted:

It is well established that “[t]he unavailability of a prosecution witness may be a sufficient justification for delay . .. , provided that the People attempted with due diligence to make the witness available” … . Additionally, the reason for the witness’s unavailability is relevant to determining whether a delay is justified. Where a witness is unavailable because of medical reasons or military deployment, courts generally have held that the delay is not chargeable to the People … . Where the witness is unavailable because he or she has taken a vacation, however, many courts have charged the time to the People … . That is because “the mere fact that a necessary witness plans to go on a vacation does not relieve [the People] of their speedy trial obligation” … . Here, the People did not establish that they exercised due diligence to secure the witness’s presence on the scheduled trial date, and we conclude that the delay arising from the witness’s unavailability during his vacation is chargeable to the People. People v Harrison, 2019 NY Slip Op 03173, Fourth Dept 4-26-19

 

UNAUTHORIZED USE OF A VEHICLE WAS A LESSER INCLUSORY CONCURRENT COUNT OF THE GRAND LARCENY COUNT, CONVICTION ON THE GRAND LARCENY COUNT REQUIRED DISMISSAL OF THE LESSER COUNT (FOURTH DEPT).

The Fourth Department dismissed the unauthorized use of a vehicle charge as a lesser inclusory concurrent count of the grand larceny charge, which was based upon car theft:

… “[B]ecause it is impossible to commit the crime of grand larceny in the fourth degree under Penal Law § 155.30 (8) without concomitantly committing the crime of unauthorized use of a vehicle in the third degree under section 165.05 (1)” … , we agree with defendant and the People that count three of the indictment, charging the latter crime, must be dismissed because it is a lesser inclusory concurrent count of count two, charging the former crime … . People v Hickey, 2019 NY Slip Op 03165, Fourth Dept 4-26-19

 

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STATEMENTS MADE AFTER DEFENDANT REQUESTED AN ATTORNEY SHOULD HAVE BEEN SUPPRESSED, ERROR WAS NOT HARMLESS (FOURTH DEPT).

The Fourth Department, reversing County Court, determined that defendant’s statements, made after he had asked for an attorney, should have been suppressed. The court further disagreed with the People’s argument that the error was harmless:

We agree with defendant, however, that County Court … erred in denying that part of his omnibus motion seeking to suppress the statements that he made while at the police station after he unequivocally asserted his right to counsel by asking, “May I have an attorney please, a lawyer?” Specifically, we conclude that the court erred in refusing to suppress the statements that defendant made to investigators during his videotaped interrogation … after requesting an attorney and the statements that defendant made on the videotape after the investigators left the interview room … .

We further conclude that, contrary to the People’s assertion, the court’s error is not harmless inasmuch as there is a “reasonable possibility that the error might have contributed to defendant’s conviction” … . The defense theory at trial was that defendant had consensual sexual contact with the victim. During the videotaped interrogation viewed by the jury, however, defendant repeatedly denied having had any sexual contact with the victim. He then admitted that he had lied, but nevertheless continued to deny that sexual contact had occurred. In addition, the prosecutor, on redirect examination of one of the investigators, elicited testimony establishing that, after the investigators left the room, defendant was recorded making an additional comment that contradicted his earlier statements. People v Jackson, 2019 NY Slip Op 03162, Fourth Dept 4-26-19

 

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DEFENSE COUNSEL WAS INEFFECTIVE BECAUSE HE MISCALCULATED AND FILED A SPEEDY TRIAL MOTION TEN DAYS BEFORE THE SPEEDY TRIAL CLOCK RAN OUT, DEFENDANT’S MOTION TO VACATE THE CONVICTION WAS PROPERLY GRANTED AND THE INDICTMENT DISMISSED (FIRST DEPT).

The First Department determined defense counsel was ineffective when he filed a speedy trial motion 10 days before the speedy trial clock would have run out. The indictment was dismissed in this CPL 440.10 proceeding:

Counsel filed a speedy trial motion, alleging well over the required threshold of 183 days of chargeable time. However, because of counsel’s miscalculations, these allegations included substantial periods that were not in fact chargeable. As a result, the court deciding the speedy trial motion found that only 174 days were chargeable. However, if counsel had waited only 10 more days to file the motion, the circumstances of the case establish that this additional period would unquestionably have been charged to the People, as counsel was aware. Thus, the threshold would have been exceeded, and the court would have been required to grant the speedy trial motion. Instead, the filing of the premature motion stopped the clock and rendered the People’s additional unreadiness excludable.

The CPL 440.10 hearing record establishes that counsel had no strategic reason for filing the speedy trial motion in the form and at the time he did, and that his handling of the motion was objectively unreasonable. Furthermore, the prejudice prong of a single-error ineffectiveness claim was satisfied, because “[i]t is well settled that a failure of counsel to assert a meritorious speedy trial claim is, by itself, a sufficiently egregious error to render a defendant’s representation ineffective” … . People v Stewart, 2019 NY Slip Op 03142, First Dept 4-25-19

 

SUPERIOR COURT INFORMATION DID NOT INCLUDE THE APPROXIMATE TIME OF THE OFFENSE, GUILTY PLEA VACATED (THIRD DEPT).

The Third Department, reversing County Court, determined the superior court information (SCI) to which defendant pled guilty was invalid because it did not include the approximate time of the offense. The guilty plea was vacated:

Defendant contends that the waiver of indictment was deficient, requiring that the guilty plea be vacated, because there was not strict compliance with the statutory mandates of CPL 195.20. Specifically, defendant asserts that the superior court information (hereinafter SCI) does not set forth the “approximate time” of the offense nor does the record establish that the waiver of indictment was signed by defendant in open court … . With regard to the approximate time of the offense, such information, which is required by the plain language of the statute, was omitted from the SCI . Furthermore, this is not “a situation where the time of the offense is unknown or, perhaps, unknowable” so as to excuse the absence…  of such information … . As we have previously noted, “[a]ny other interpretation would render the statute’s language requiring the ‘approximate time’ superfluous or redundant” … . Inasmuch as defendant’s waiver of indictment was not procured in strict compliance with the statutory provisions, it is invalid, thereby requiring vacatur of his guilty plea and dismissal of the SCI … . People v Edwards, 2019 NY Slip Op 03108, Third Dept 4-25-19

 

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