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SCHOOL-GROUNDS RESTRICTION APPLIES ONLY TO OFFENDERS SERVING A SENTENCE FOR ONE OF THE OFFENSES ENUMERATED IN THE EXECUTIVE LAW AT THE TIME OF RELEASE, SINCE PETITIONER, WHO WAS A LEVEL THREE SEX OFFENDER, WAS SERVING A SENTENCE FOR BURGLARY AT THE TIME OF RELEASE, THE SCHOOL-GROUNDS RESTRICTION DID NOT APPLY TO HIM (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Aarons, disagreeing with the 4th Department, determined that the restriction in the Executive Law prohibiting a sex offender from living within 1000 feet of a school only applied if the sentence being served at the time of release on parole is for one of the offenses enumerated in the statute. Defendant had previously been convicted of a sex offense and had been adjudicated a level three sex offender. But the offense for which he was incarcerated at the time of his release (burglary) is not an enumerated offense:

… [T]he statute is unambiguous and interpret it in the manner advanced by him. In this regard, we read “such person” as plainly and unequivocally referring to “a person serving a sentence for an offense defined in [Penal Law articles 130, 135 or 263 or Penal Law § 255.25, § 255.26 or 255.27]” (Executive Law § 259-c [14]). We are unpersuaded by respondent’s contention that “such person” in Executive Law § 259-c (14) can be rationally read to refer only to “a person” or “a person serving a sentence” as stated in the beginning of the statute and without regard to that part of the statute specifying various offenses. Based on the foregoing, we find that the school-grounds restriction provided in Executive Law § 259-c (14) applies either to (1) an offender serving one of the enumerated offenses whose victim was under 18 years old, or (2) an offender serving one of the enumerated offenses who was designated a risk level three sex offender. Because petitioner was not serving a sentence for an offense delineated in Executive Law § 259-c (14), the statute does not apply to him. People v Superintendent, Woodbourne Corr. Facility, 2019 NY Slip Op 01267, Third Dept 2-21-19

 

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PEOPLE’S FAILURE TO PROCURE ANOTHER ACCUSATORY INSTRUMENT AFTER THE COURT REDUCED THE CHARGE RENDERED THE INDICTMENT JURISDICTIONALLY DEFECTIVE, REQUIRING DISMISSAL AFTER TRIAL DESPITE DEFENDANT’S FAILURE TO RAISE THE ISSUE AND THE PRESENTATION OF SUFFICIENT EVIDENCE OF THE REDUCED CHARGE (THIRD DEPT).

The Third Department, reversing the conviction and dismissing the indictment as jurisdictionally defective, determined that the People’s failed to file an instrument with the reduced charged ordered by the judge or seek permission to re-present the case to a grand jury. The fact that error was not raised by the defendant and the fact that the reduced charge was supported by sufficient evidence did not matter in the face of  the insufficient accusatory instrument:

“Where a court acts to reduce a charge contained in an indictment and the People fail within 30 days to take any action in response to this decision, the order directing the reduction shall take effect and the People are obligated, if they intend to pursue a prosecution, to either file an instrument containing the reduced charge or obtain permission to re-present the matter to a grand jury” … . Inasmuch as the People did nothing after County Court ordered a reduction in the remaining count, “the only charge that remained viable after the expiration of the [30-day] stay was the reduced count” of course of sexual conduct against a child in the first degree … . The People never filed a reduced indictment charging that offense, however, and County Court had no independent power to effectuate the reduction via an amendment to the original indictment … . “A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution,” and the People’s failure to file an indictment charging the reduced count precluded County Court from trying and convicting defendant on it … . People v Stone, 2019 NY Slip Op 01264, Third Dept 2-21-19

 

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DEFENSE COUNSEL’S INTRODUCING INTO EVIDENCE A SEARCH WARRANT APPLICATION WHICH IMPLICATED THE DEFENDANT IN CRIMES CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defense counsel’s placing in evidence a search warrant application which included prejudicial information about crimes involving the defendant amounted to ineffective assistance of counsel:

… [R]ather than a single error, we are confronted with a set of three closely-related errors at two stages of the trial: the failure to redact the irrelevant and prejudicial hearsay from the search warrant application before introducing it for the limited purpose of revealing [the applicant’s] errors; the failure to request a limiting instruction that would have advised the jury of that purpose; and the subsequent failure to object to the prosecutor’s repeated exhortations to the jury to rely on the application’s hearsay information as proof of defendant’s guilt. These errors, as well as the prejudicial testimony elicited from the detective, gain particular significance in the light of the close nature of the other evidence. The admissible proof that defendant constructively possessed the contraband and had the requisite intent to sell, although adequate to support the verdict, was not overwhelming. Further, the information in the application directly contradicted counsel’s theory of defense, which was that the girlfriend, and not defendant, possessed and sold the drugs found in the apartment. Thus, although counsel’s challenged conduct took place in the context of an otherwise effective performance, we find that the cumulative effect of his errors deprived defendant of a fair trial and requires reversal of the judgment … . People v Newman, 2019 NY Slip Op 01263, Third Dept 2-20-19

 

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IT WAS (HARMLESS) ERROR TO ADMIT TESTIMONY OF THE PEOPLE’S DNA EXPERT, THE TESTIMONIAL HEARSAY VIOLATED DEFENDANT’S RIGHT TO CONFRONTATION (SECOND DEPT).

The Second Department determined the testimony of the People’s DNA expert violated defendant’s right to confrontation. The error was deemed harmless however:

… [T]he Supreme Court should not have admitted, over the defendant’s objection, the testimony of the People’s DNA expert, as such testimony violated the defendant’s right to confrontation… . In order to satisfy the Confrontation Clause where the People seek to introduce testimonial DNA evidence, “an analyst who witnessed, performed or supervised the generation of defendant’s DNA profile, or who used his or her independent analysis on the raw data, as opposed to a testifying analyst functioning as a conduit for the conclusions of others, must be available to testify”… . Although the People’s expert testified that he conducted a “technical review” of the reports prepared by another criminalist whom he supervises, he did not establish that such review entailed using his own independent analysis on the raw data … .

Even so, the error in admitting the testimonial DNA evidence was harmless since the proof of the defendant’s guilt, without reference to the erroneously admitted DNA evidence, was overwhelming and there was no reasonable possibility that the Supreme Court would have acquitted the defendant had it not been for the error … . People v Dyson, 2019 NY Slip Op 01225, Second Dept 2-20-19

CRAWFORD, CROSS-EXAMINATION

 

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SORA COURT MAY HAVE OVERASSESSED THE RISK IN A STATUTORY RAPE CASE, MATTER REMITTED FOR PROPER APPLICATION OF THE CRITERIA ANNOUNCED BY THE COURT OF APPEALS IN PEOPLE V GILLOTTI (FIRST DEPT).

The First Department sent the matter back to the SORA court for further consideration of the request for a downward department where defendant was convicted of statutory rape:

In People v Gillotti (23 NY3d 841 [2014]), the Court of Appeals outlined a three-step process for determining whether to grant a defendant’s request for a downward departure. First, the hearing court is to determine whether alleged mitigating circumstances are “of a kind or degree not adequately taken into account by the guidelines”… . If so, the court applies a preponderance of the evidence standard (id. at 863) to determine whether the defendant has proven the existence of those circumstances … . Finally, if the first two steps are satisfied, the court must “exercise its discretion by weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants” a downward departure to avoid an overassessment of the defendant’s dangerousness and risk of sexual reoffense … .

While not entirely clear on this point, the decision of the hearing court in this case suggests that, in this case of statutory rape, the court considered itself bound, as a matter of law, to conclude that the various details of the offense urged as mitigating circumstances by defendant were adequately accounted for by the guidelines. Thus, the court appeared to consider itself unable to engage in the discretionary weighing prescribed in Gillotti’s third step. To the extent that the court acted based on this reasoning, it operated on an inaccurate premise that is contradicted by numerous cases that have granted downward departures in a similar context … , as well as the Guidelines themselves (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 9 [2006]).

“In cases of statutory rape, the Board has long recognized that strict application of the Guidelines may in some instances result in overassessment of the offender’s risk to public safety” … . Accordingly, the fact that in such a case the offender is not assessed any points for force or injury should not be the end of the discussion of whether to grant a downward departure. People v Soto, 2019 NY Slip Op 01184, First Dept 2-19-19

 

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POLICE OFFICER WAS PROPERLY ALLOWED TO IDENTIFY DEFENDANTS AS THE PERSONS DEPICTED IN VIDEOTAPES (FIRST DEPT).

The First Department noted that a police officer was properly allowed to identify defendants as persons depicted in videotapes:

The circumstances … warranted testimony by the officer identifying defendants as persons depicted in videotapes … . Notwithstanding the fact that defendants had not changed their appearance subsequent to having been videotaped, the testimony was permissible, because “[the] testimony served to aid the jury in making an independent assessment regarding whether the [men] in the [were] indeed the defendant[s]'”… . Furthermore, the circumstances suggested that the jury would be less able than the officer to determine whether the defendants were seen in the videotapes, given the poor quality of the surveillance tapes, which showed groups of young men, mostly from a distance, thus rendering his testimony appropriate … . The trial court instructed the jurors that the officer’s testimony concerning the identities of those seen on video was his opinion and that the ultimate identification determination belonged exclusively to the jury. Furthermore, none of the officer’s testimony violated the hearsay rule or defendants’ right of confrontation. People v Pinkston, 2019 NY Slip Op 01171, First Dept 2-19-19

 

WHERE A DEFENDANT HAS BEEN RESENTENCED BECAUSE THE ORIGINAL SENTENCE WAS ILLEGAL, THE DATE OF THE ORIGINAL SENTENCE CONTROLS FOR DETERMINATION OF PREDICATE FELONY STATUS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a three-judge dissent, reversing the Appellate Division, determined that, where a defendant has been resentenced because the original sentence was illegal, the date of the original sentence, not the subsequent resentence, controls for the purpose of determining predicate felony status:

… [D]efendant’s proffered interpretation of Penal Law § 70.06 is not supported by the plain language of that provision, its well-established legislative purpose, or our precedent. Therefore, because the original sentences on defendant’s 1989 convictions were imposed before commission of the present felony, the sequentiality requirement of the predicate felony statute was satisfied, and defendant was properly sentenced as a second felony offender. People v Thomas, 2019 NY Slip Op 01167, CtApp 2-19-19

 

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COURT RECORDS RELATED TO PROCEEDINGS FOR THE COMMITMENT AND RETENTION OF DANGEROUS MENTALLY ILL ACQUITTEES ARE NOT CLINICAL RECORDS AND THEREFORE ARE NOT SUBJECT TO THE AUTOMATIC SEALING REQUIREMENT IN THE MENTAL HYGIENE LAW (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined that the records of Criminal Procedure Law 330.20 proceedings related to the commitment and retention of insanity acquittees (suffering from a dangerous mental disorder) are not “clinical records” within the meaning of the Mental Hygiene Law and, therefore, are not subject to the automatic sealing requirement:

The plain text of Mental Hygiene Law § 33.13 … cuts against defendant’s interpretation that the term “clinical record” includes the entire record of court proceedings or dictates to a court how to manage its own records. * * *

Throughout our history, “the institutional value” of open judicial proceedings has fostered “an appearance of fairness” … and ensured “the public interest in having proceedings of courts of justice public, not secret, for the greater security thus given for the proper administration of justice” … . Interpreting Mental Hygiene Law § 33.13, despite the absence of any supporting statutory language, to provide a blanket sealing requirement of an entire court record that is automatically conferred disregards that tradition. In balancing the privacy rights of a defendant with the public’s right to know how dangerous mentally ill acquittees are managed by the courts, the legislature eschewed an automatic sealing requirement of the court record. We refuse to disturb that balance today. Here, defendant demanded an automatic seal in stark contrast to a case specific analysis that demands a court to find good cause sufficient to rebut the legislative presumption of public access for any sealing, in part or whole, upon due consideration of the competing and compelling interests of the public and the parties … . Matter of James Q. (Commissioner of the Off. for People with Dev. Disabilities), 2019 NY Slip Op 01166, CtApp 2-19-19

 

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FAILURE TO GRANT AN ADJOURNMENT TO ALLOW DEFENSE COUNSEL, WHO HAD BEEN ACTING IN A LIMITED ADVISORY CAPACITY, TO ADEQUATELY PREPARE FOR A SUPPRESSION HEARING DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL, NEW SUPPRESSION HEARING ORDERED, APPEAL HELD IN ABEYANCE (SECOND DEPT).

The Second Department held the appeal in abeyance to allow a new suppression hearing. defense counsel. Defense counsel was acting in a limited advisory capacity when he was asked by the judge to conduct the suppression hearing. Defendant asked for an adjournment to allow counsel to review the voluminous discovery materials, but the request was denied. The Second Department held that the denial of the adjournment deprived defendant of his right to counsel:

“[T]he right of a defendant to be represented by an attorney means more than just having a person with a law degree nominally represent him [or her] upon a trial and ask questions” … . “[T]he right to effective representation includes the right to assistance by an attorney who has taken the time to review and prepare both the law and the facts relevant to the defense and who is familiar with, and able to employ . . . basic principles of criminal law and procedure” … .

Here, the Supreme Court improvidently exercised its discretion in denying the defendant’s request for an adjournment to give his attorney more time to prepare for the suppression hearing. Prior to the hearing, counsel acted in the limited capacity of advisor since the defendant wished to proceed pro se. However, at the court’s urging, counsel agreed to represent the defendant at the suppression hearing but expressed his concern that he had not had an adequate opportunity to review voluminous discovery materials … . People v Costan, 2019 NY Slip Op 01089, Second Dept 2-13-19

 

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FAILURE TO IDENTIFY AN APPEALABLE ISSUE IN AN ANDERS BRIEF ARGUING THAT THERE ARE NO NONFRIVOLOUS ISSUES WARRANTING APPEAL DOES NOT NECESSARILY REQUIRE THE ASSIGNMENT OF NEW APPELLATE COUNSEL, HERE THE MISSING ISSUE WAS DEEMED INCONSEQUENTIAL AND THEREFORE THERE WAS NO NEED FOR ANOTHER ASSESSMENT BY ANOTHER ATTORNEY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, announced a new rule concerning when new counsel should be assigned because an Anders brief did not demonstrate the absence of any issues which could be raised on appeal. The defendant had pled guilty and received the agreed upon sentence, which was the minimum sentence allowed. The defendant had also waived his right to appeal. The Anders brief addressed the plea and sentence (finding no appealable issues) but did not address the waiver of appeal. The Second Department determined there was no need to assign new counsel to the appeal because whether the waiver of appeal was valid or not, the result would not be affected:

… [A]n Anders brief will not be deemed deficient under Step 1 of the Matter of Giovanni S. [89 AD3d at 252] analysis when assigned counsel fails to identify an issue, if it is demonstrable from the face of the brief that the missing issue would be inconsequential. We do not suggest that this new “Matter of Giovanni S.-Murray rule” be applied where any missing issue would not be inconsequential. Since the brief would be sufficient under these circumstances, the court would then proceed to Step 2 of the Matter of Giovanni S. analysis, which requires an independent review of the record to determine whether counsel’s assessment that there are no nonfrivolous issues for appeal is correct. This refinement safeguards the indelible right of a criminal defendant to a conscientious, effective, and zealous advocate that lies at the heart of Anders protection … . At the same time, it recognizes a measure of practicality, that congested courts operating under tight budgets, with limited personnel, and finite taxpayer money, not be required to engage in Sisyphean efforts that cannot, as a matter of law, lead anywhere. People v Murray, 2019 NY Slip Op 01101, Second Dept 2-13-19

 

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