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DEFENSE COUNSEL GAVE DEFENDANT THE WRONG INFORMATION ABOUT THE MAXIMUM SENTENCE SHOULD HE GO TO TRIAL, DEFENDANT’S GUILTY PLEA WAS THEREFORE NOT VOLUNTARY, EXCEPTION TO THE PRESERVATION REQUIREMENT FOR APPEAL APPLIED (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined: (1) the plea was not voluntary because defendant was given the wrong information about the possible maximum sentence if he went to trial; and (2) the error is an exception to the preservation requirement for appeal because defendant could not have known of the error at the time of the plea:

The Court of Appeals … has carved out an exception to the preservation doctrine “because of the actual or practical unavailability of either a motion to withdraw the plea’ or a motion to vacate the judgment of conviction,'” in certain instances, reasoning that ” a defendant can hardly be expected to move to withdraw his plea on a ground of which he has no knowledge'” … . Moreover, the defendant’s contention that his plea of guilty was not knowing, voluntary, and intelligent survives his valid appeal waiver … . …

Here, the defendant’s plea was not made knowingly, voluntarily, and intelligently. The record demonstrates that the defendant was not presented with legitimate alternatives about the maximum sentence he faced in the event he chose to reject the People’s plea offer and was convicted after trial. … On this record, given the difference between the incorrect maximum aggregate sentence of 3 to 5 years that defense counsel communicated to the defendant, the actual maximum aggregate sentence of 2 to 4 years, and the bargained-for sentence of 1½ to 3 years, the threat of a higher sentence rendered the defendant’s plea involuntary … . People v Keller, 2019 NY Slip Op 00620, Second Dept 1-30-19

 

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UNWARNED STATEMENTS MADE DURING CUSTODIAL INTERROGATION AND STATEMENTS MADE IN THE ABSENCE OF COUNSEL SHOULD HAVE BEEN SUPPRESSED, DEFENSE COUNSEL’S FAILURE TO OBJECT CONSTITUTED INEFFECTIVE ASSISTANCE, SOME UNPRESERVED APPELLATE ISSUES CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, over a partial dissent, reversed defendant’s bribery and falsely reporting an incident convictions, in the interest of justice, and ordered a new trial. The facts are too complex to fairly summarize here. Defendant was accused of assault by her husband. The police called her to the station where she was interviewed. After she was told she would be placed under arrest she allegedly offered sex and money to the interviewing officer (Officer Persaud) to make the charges go away. The officer wore a wire to record further conversations about the bribery. After defendant was arraigned and represented by counsel, defendant was again interviewed in the back of a police car (by Sargeant Klein and her partner) concerning the alleged bribery. That conversation was also recorded. Statements made during custodial interrogation that were not preceded by Miranda warnings and statements made to police officers in the absence of counsel should not have been admitted. Defense counsel was ineffective for failing to object:

Officer Persaud should have known that in telling the defendant that she needed to come to the precinct station house in connection with his investigation into the allegations her husband had made against her, allegations about which she had already been told she would be arrested, placing her in an interview room, and then confronting her with the allegations and the evidence against her, including the existence of the order of protection, he was reasonably likely to elicit from the defendant an incriminating response … . * * *

… [T]the defendant’s alleged bribery of Officer Persaud and her allegedly false reporting of his sexual misconduct during that same encounter were “so inextricably interwoven in terms of both their temporal proximity and factual interrelationship” as to render unavoidable the conclusion that any interrogation concerning the allegedly false report would inevitably elicit incriminating responses regarding the matter in which there had been an entry of counsel… . Furthermore, the police were aware that the defendant was actually represented by an attorney and the interrogation actually entailed an infringement of her constitutional right to counsel by impermissible questioning on the represented crimes … . * * *

… [T]he defendant demonstrated the absence of “a reasonable and legitimate strategy under the circumstances and evidence presented” … for defense counsel’s stipulation to admission of a recording of the entire interview between the defendant and Sergeant Klein and her partner, and his failure to object to Sergeant Klein’s testimony recounting the same interview, or Officer Persaud’s testimony in which he recounted numerous statements made by the defendant, of which the People failed to provide notice as required by CPL 710.30(1)(a). People v Stephans, 2019 NY Slip Op 00473, Second Dept 1-23-19

INEFFECTIVE ASSISTANCE, RIGHT TO COUNSEL

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THE WAIVER OF APPEAL WAS INVALID, THE STATUTORY REQUIREMENTS FOR THE ORDER OF PROTECTION ISSUED AT SENTENCING WERE NOT MET (SECOND DEPT).

The Second Department, vacating an order of protection issued at sentencing and affirming the conviction, determined defendant’s waiver of his right to appeal was invalid:

… [T]he record does not demonstrate that the defendant understood the nature of the right to appeal and the consequences of waiving it … . The Supreme Court did not provide the defendant with an adequate explanation of the nature of the right to appeal or the consequences of waiving that right … . The court’s explanation was little more than a tautology: “[Y]ou have given up your right to appeal. Which means there will be no appeal with regards to anything in your case, and the only exception to that would be an illegal sentence or some constitutional issue. But basically you have given up your right to appeal. Do you understand?” … . Furthermore, the court’s statements at the plea allocution suggested that waiving the right to appeal was mandatory rather than a right which the defendant was being asked to voluntarily relinquish, and the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal… .

Although the record on appeal reflects that the defendant signed a written appeal waiver form, a written waiver “is not a complete substitute for an on-the-record explanation of the nature of the right to appeal” … . * * *

… [T]the Supreme Court failed to state on the record the reasons for issuing the order of protection at the time of sentencing …  Furthermore, … the court failed to fix the duration of the order of protection … . Under these circumstances, we vacate the order of protection issued at the time of sentencing … . People v Moncrieft, 2019 NY Slip Op 00466, Second Dept 1-23-19

 

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BASED ON THE SUBMITTED EVIDENCE OF THIRD PARTY CULPABILITY IN THIS RAPE AND MURDER CASE, DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE THE JUDGMENT OF CONVICTION (SECOND DEPT).

The Second Department determined defendant was entitled to a hearing on his motion to vacate his murder conviction. The defendant and his codefendant, DiPippo, were convicted of the 1995 rape and murder of a 12-year-old girl. At DiPippo’s third trial DiPippo was allowed to present evidence of third culpability. The third party, Gombert, had allegedly confessed to a fellow inmate. After DiPippo’s acquittal, defendant moved to vacate his conviction based upon the newly discovered evidence of third party culpability. The motion was denied without a hearing. The matter was remitted for a hearing:

The court which entered a judgment of conviction may, on motion of the defendant, vacate the judgment on the ground that “[n]ew evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence”… .

“Once the parties have filed papers and all documentary evidence or information has been submitted, the court is obligated to consider the submitted material for the purpose of ascertaining whether the motion is determinable without a hearing to resolve questions of fact'”… . “[W]hether a defendant is entitled to a hearing on a CPL 440.10 motion is a discretionary determination” … .

Under the circumstances of this case, the County Court improvidently exercised its discretion in denying, without conducting an evidentiary hearing, the defendant’s motion pursuant to CPL 440.10 to vacate his judgment of conviction. In view of the parties’ submissions, particularly the third-party culpability evidence relating to Gombert, a hearing is necessary to promote justice … . Following a full evidentiary hearing, the court will be in a position to “make its final decision based upon the likely cumulative effect of the new evidence had it been presented at trial” … . People v Krivak, 2019 NY Slip Op 00464, Second Dept 1-23-19

 

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PROVIDING ILLEGAL HIV MEDICATIONS TO A PHARMACY FOR RESALE: (1) DID NOT CONSTITUTE GRAND LARCENY BECAUSE THE AGENT OF THE PHARMACY TO WHOM THE DRUGS WERE PROVIDED KNEW THE DRUGS WERE ILLEGAL AND THAT KNOWLEDGE IS IMPUTED TO THE CORPORATION; AND (2) DID NOT CONSTITUTE CRIMINAL DIVERSION OF PRESCRIPTION DRUGS BECAUSE THE DRUGS WERE PROVIDED TO A CORPORATION, NOT TO A PERSON WHO HAD NO MEDICAL NEED FOR THEM. AN UNSEALED COMPILATION OF WIRETAP RECORDINGS CONSTRUCTED FROM SEALED ORIGINALS WAS ADMISSIBLE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Sgroi, reversing defendant’s grand larceny and criminal diversion of prescription medications convictions, determined that: (1) the knowledge of the agent of the pharmacy to whom the illegal HIV drugs were provided must be imputed to the corporation, therefore the corporation was deemed to know it was receiving and selling illegal drugs; (2) the statute prohibiting criminal diversion of prescription drugs is aimed at street sales of prescription drugs to those who have no medical need for them, therefore the statute does not apply to supplying illegal drugs to a pharmacy for resale; (3) the moneylaundering convictions and related sentences should be affirmed; and (4) a compilation of wiretap recordings, although not sealed, was made from properly sealed recordings and was properly authenticated, therefore the compilation was admissible:

… [T]here is no statutory requirement that a properly authenticated composite recording be compared against the sealed original recording. Three simultaneous original recordings of the intercepted communications were created in this case. The composite recording was compared against an original version of the recordings, and [a witness] testified that the composite recording was a true and accurate reflection of the content of the original. ,,, [A] sealed version of the original recording existed to deter alteration of, and permit challenge to, the composite, thus satisfying the statute. * * *

[Re; Grand Larceny:] The People’s theory in this case was that the defendant … wrongfully took money from [the pharmacy] by falsely representing that the medications they were selling were lawful to sell, transfer, and dispense. The defendant argues … that the People failed to prove that such a false representation of past or existing fact was made to [the pharmacy] because [the agent] , a high managerial employee of [the pharmacy], knew that the medications were not lawful to sell, transfer, and dispense, and thus, [the pharmacy], by imputation, also knew this fact. We agree. * * *

[Re: Criminal Diversion of Prescription Medications Penal Law § 178.25:] The defendant does not challenge the People’s premises that (1) the medications had left the legitimate stream of commerce rendered them “adulterated,” and (2) one cannot have a “medical need” for adulterated medications, as the term “medical need” is used in the statute. Thus, we do not address the validity of these premises. However, the defendant challenges the applicability of this statute to his alleged conduct on the basis that, by its terms, the statute cannot apply to a transfer of prescription medications to a corporation, as opposed to a person capable of having medical needs. Again, we agree. People v Gross, 2019 NY Slip Op 00461, Second Dept 1-23-19

 

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OFFICER DID NOT HAVE PROBABLE CAUSE TO SEARCH THE VAN AFTER HE LEARNED THAT DEFENDANT, WHO WAS SITTING IN THE PASSENGER SEAT, WAS SMOKING A CIGAR, NOT MARIJUANA, SUPREME COURT’S SUA SPONTE FINDING THAT DEFENDANT DID NOT HAVE STANDING TO CONTEST THE SEARCH WAS ERROR, THERE WAS UNCONTRADICTED EVIDENCE THE VAN WAS DEFENDANT’S WORK VEHICLE (SECOND DEPT).

The Second Department, reversing defendant’s possession of a weapon conviction and dismissing the indictment, determined that the police officer did not have probable cause to search the van where the weapon was found. The defendant was sitting in the passenger seat smoking a cigar when the officer approached and removed him from the van, apparently because the officer thought defendant was smoking marijuana. At the time the officer searched the van, he know defendant was smoking a cigar. Although defendant was sitting in the passenger seat, there was no evidence to contradict his claim that the van was his work vehicle. Contrary to Supreme Court’s contrary finding (made sua sponte), the defendant had standing to contest the search:

The officer testified that he removed the defendant from the minivan and frisked him out of a fear for the officer’s own safety; no weapon was recovered. The officer further testified that, at that time, he realized that the two men were smoking cigars, not marijuana. Nevertheless, the officer went around the minivan to the driver’s side and opened the sliding door on that side, whereupon he observed a firearm sticking out of a bag behind the driver’s seat.

We disagree with the hearing court’s determination, sua sponte, that the defendant lacked standing to challenge the search of the minivan. The defendant, who had told the police at the police station that the minivan was his work van, had standing to challenge the search. Although the defendant had been sitting in the front passenger seat of the minivan, no evidence was presented to contradict his statements that it was his work van. The defendant’s statements were sufficient to establish that he exercised sufficient dominion and control over the minivan to demonstrate his own legitimate expectation of privacy therein… .

“[A]bsent probable cause, it is unlawful for a police officer to invade the interior of a stopped vehicle once the suspects have been removed and patted down without incident, as any immediate threat to the officers’ safety has consequently been eliminated” … . Contrary to the People’s contention, under the circumstances here, where the defendant already had been removed from the minivan and no one else was in the minivan, the police lacked probable cause to conduct a warrantless search by opening the sliding door of the minivan, and the weapon found as a result of the unlawful search should have been suppressed … . People v Dessasau, 2019 NY Slip Op 00456, Second Dept 1-23-19

 

DEFENDANT SHOULD NOT HAVE BEEN ARRAIGNED ON A SPECIAL INFORMATION CONCERNING A PRIOR CONVICTION PRIOR TO JURY SELECTION, THE STATUTE REQUIRES ARRAIGNMENT AFTER JURY SELECTION, THE ERROR WAS DEEMED HARMLESS HOWEVER (FIRST DEPT).

The First Department, over a dissent, determined defendant should not have been arraigned on a special information pursuant to Criminal Procedure Law 200,60 before jury selection. The procedure avoids the presentation of proof of a prior conviction at trial. The error was deemed harmless by the majority. The dissent argued the error was not harmless and would have ordered a new trial:

A court cannot disregard plain statutory language simply because it concludes that an alternate procedure would be consonant with the policy underlying the statute. Courts do not possess the power to ignore the legislature … . It may well be that the legislature’s general purpose in enacting CPL 200.60 was to avoid the prejudicial effect of having the prior offense proven before the jury. However, such a purpose does not support reading the timing requirement out of the statute. Allowing a defendant to wait until after the commencement of the trial ensures that he will have as much information as possible when forced to make the choice of admitting his prior conviction and relieving the People of its burden to prove it beyond a reasonable doubt; or denying the conviction and allowing the jury to learn about it. …

Despite the court’s error, however, we are obliged to affirm because defendant has not shown any prejudice arising from the fact that he was required to decide whether to contest the prior conviction earlier than necessary. Defendant does not assert that he would have contested the conviction if he had been asked after jury selection. Thus, defendant’s claims of prejudice are speculative. People v Alston, 2019 NY Slip Op 00410, First Dept 1-22-19

 

PRIOR FLORIDA CONVICTION WAS NOT THE EQUIVALENT OF A NEW YORK FELONY, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER (FIRST DEPT).

The First Department determined defendant should not have been sentenced as a second felony offender because the prior Florida conviction was not the equivalent of a New York felony. The defendant was convicted of attempted murder and attempted robbery:

The knowledge element of the Florida statute at the time of defendant’s Florida offense was that a defendant “knew of the illicit nature of the items in his possession” … . This was broader than the knowledge requirement under Penal Law § 220.16, which demands proof of “knowledge that the item at issue was, in fact, the controlled substance the defendant is charged with selling or possessing” … . Contrary to the trial court’s analysis, the dispositive difference between the knowledge requirements of the Florida and New York statutes was in place at the time of defendant’s 1998 Florida conviction. Florida’s alteration of its knowledge requirement in 2002 (see Fla Stat Ann § 893.101) has no bearing on our analysis. People v Muhammad, 2019 NY Slip Op 00386, First Dept 1-22-19

 

APPELLATE DIVISION REDUCED DEFENDANT’S SENTENCE USING ITS PLENARY POWER, DESPITE THE FACTS THAT (1) THE SENTENCE WAS WITHIN PERMISSIBLE LIMITS, (2) THE SENTENCING COURT DID NOT ABUSE ITS DISCRETION, AND (3) DEFENDANT HAD AN EXTENSIVE CRIMINAL HISTORY (FIRST DEPT).

The First Department, over a dissent, exercised its power to modify an unduly harsh or severe sentence that is within the permissible range. Defendant, who was homeless, attempted to buy toothpaste with a counterfeit $20 bill. The sentence was reduced from 4 to 8 years to 3 to 6 years:

The Appellate Division has “broad plenary power to modify a sentence that is unduly harsh or severe under the circumstances, even though the sentence may be within the permissible statutory range” … . A trial court need not abuse its discretion for the Appellate Division to substitute its own discretion … . We may “reduce a sentence in the interests of justice, taking into account factors such as defendant’s age, physical and mental health, and remorse” … .

The immediate object of defendant’s crime was to purchase basic human necessities, including food and toothpaste. In consideration of the fact that he was a 53 year-old, unemployed homeless man, with longstanding medical and substance abuse issues, a reduction of his sentence to 3 to 6 years is appropriate.

Defendant’s extensive criminal history does not preclude a determination that his sentence is excessive … . People v Mitchell, 2019 NY Slip Op 00371, First Dept 1-22-19

 

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ALTHOUGH THERE WAS PROBABLE CAUSE TO ARREST PLAINTIFF ON A SUBWAY FOR A TRANSIT VIOLATION, THE CONCURRENCE CALLED INTO QUESTION THE ‘TRANSIT DATABASE’ WHICH PROBABLY INCLUDES PERSONS WHOSE CRIMINAL CHARGES WERE SEALED AND DISMISSED, THE DATABASE DOES NOT PROVIDE A DISTINCT BASIS FOR ARREST (FIRST DEPT).

The First Department, over a concurrence, determined that there was probable cause to arrest the plaintiff based on the transit offense of passing between two subway cars on a moving train. Because there was probable cause, the majority did not reach the issue of the fairness or constitutionality of a so-called “transit database” which encompasses so-called “transit recidivists.” The concurrence made it clear that plaintiff’s designation as a “transit recidivist” did not provide the police with a separate basis to arrest plaintiff:

From the concurrence:

It must be said that plaintiff’s designation as a transit recidivist did not give the officers a separate basis to arrest plaintiff … . The definition of “transit recidivist” at the time of plaintiff’s arrest encompassed not only persons convicted of crimes, but those with prior arrests in the transit system or prior felony arrests within New York City … . This overbroad classification subverted the presumption of innocence and likely violated state sealing laws. …

… [T]he database was likely contaminated by sealed arrests and summons histories and, as such, ran afoul of provisions of the Criminal Procedure Law that require that the records of any criminal prosecution terminating in a person’s favor or by way of noncriminal conviction be sealed …  Statistics … indicate that in 2016 alone, over 50% of all criminal cases arraigned in New York City Criminal Court were terminated in favor of the accused, and accordingly entitled to sealing … . From 2007 through 2015 an average of 23% of all criminal summonses were dismissed for facial insufficiency … . Unless otherwise permitted by law, no one, including a private or public agency, can access a sealed record, except with a court order upon a showing that justice so requires.

The presence of arrest and summons data in the database also undercut the presumption of innocence insofar as persons were threatened with punishment on account of allegations that may have been unsubstantiated or dismissed.

…[T]his is not the first NYPD database to have included unlawfully broad data. NYPD previously recorded the name of every individual stopped and frisked as recently as 2010, until forced by a federal lawsuit to discontinue the practice.

Finally, there is little doubt that the “transit recidivist” database had a disproportionately negative effect on black and Hispanic communities, perpetuating this City’s history of overpolicing communities of color. Vargas v City of New York, 2019 NY Slip Op 00370, First Dept 1-22-19

 

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