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TERRORISM CONVICTION NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE, THERE WAS NO EVIDENCE DEFENDANT INTENDED TO INFLUENCE THE POLICY OR ACTIONS OF THE SHERIFF’S OFFICE WHEN HE SAID HE WAS GOING TO ‘COME BACK AND SHOOT THE PLACE DOWN’ (THIRD DEPT).

The Third Department, reversing defendant’s “terrorism” conviction after trial, determined there was legally insufficient evidence defendant intended to influence the policy or actions of a governmental body, here the Warren County Sheriff’s Office (WCSO). When defendant was told at the sheriff’s office that his certificate of disposition was insufficient and defendant’s property could not be returned to him, he allegedly said he would “come back and shoot the place down.” He was convicted of making a terroristic threat and sentenced to five years in prison:

… [T]he record contains no evidence of a necessary element of the crime of making a terroristic threat — that defendant intended to influence a policy of a governmental unit by intimidation or coercion, or that he intended to affect the conduct of a unit of government by murder, assassination or kidnapping. [The sheriff’s evidence custodian] testified that as defendant exited the lobby of the WCSO building, he was mumbling to himself and she “heard the word shoot.” She then asked defendant what he had said, and he replied by stating “come back and shoot the place down.” Defendant made no statement relating his threat to any policy of the WCSO or demanding that it take any specific action. People v Kaplan, 2019 NY Slip Op 00329, Third Dept 1-17-19

 

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THE THIRD DEPT EXERCISED ITS INTEREST OF JUSTICE JURISDICTION AND VACATED DEFENDANT’S PLEA BECAUSE HE WAS NOT ADEQUATELY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, exercising its interest of justice jurisdiction, over a two-justice dissent, determined defendant was not adequately informed of the rights he was giving up by pleading guilty:

Defendant contends that his plea was not knowing, voluntary and intelligent because County Court failed to advise him of the constitutional rights he was waiving by pleading guilty. Although defendant failed to preserve this contention for our review through an appropriate postallocution motion … , we nonetheless exercise our interest of justice jurisdiction to take corrective action and reverse the judgment … . …

… [D]uring the abbreviated plea colloquy, County Court briefly advised defendant that, if he were to plead guilty, he would be giving up his “right to a trial, . . . the right to testify at that trial, to call witnesses and to cross-examine the People’s witnesses.” Significantly, County Court did not advise defendant that he had a right to a jury trial or that he would be waiving the privilege against self-incrimination by entering a guilty plea … . Further, the court failed to obtain any assurance that defendant had discussed with counsel the trial-related rights that are automatically forfeited by pleading guilty or the constitutional implications of a guilty plea … .

From the dissent:

… .[W]e do not think that the unpreserved error cited by the majority, standing alone, necessitates this Court exercising its interest of justice jurisdiction to reverse the judgment of conviction as there is nothing compelling about this case that “cries out for fundamental justice beyond the confines of conventional considerations” … . People v Demkovich, 2019 NY Slip Op 00326, Third Dept 1-17-19

 

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THIRD DEPT DECLINED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO REVIEW WHETHER DEFENDANT WAS ADEQUATELY INFORMED OF THE RIGHTS SHE WAS GIVING UP BY PLEADING GUILTY, TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department, over a two-justice dissent, declined to exercise its interest of justice jurisdiction to review whether defendant was adequately informed of the rights she was giving up by pleading guilty:

… [W]e find that this is not a proper matter for the exercise of our interest of justice jurisdiction. Defendant has a lengthy criminal history and admitted at the time of the plea that she was guilty of possessing heroin with the intent to sell it. Defendant was represented by counsel and entered into a plea agreement with a favorable sentence. Although defendant later filed a motion to withdraw her plea, she elected to withdraw the motion after being granted an adjournment and conferring with counsel. Significantly, defendant has since served her negotiated sentence and been released from custody; however, if this conviction is reversed, defendant once again faces prosecution for the original charge, which, if convicted, carries a greater sentencing range … . …

From the dissent:

Our review of the plea colloquy reveals that County Court engaged in an extremely limited exchange with defendant, advising her only that, by pleading guilty, she would forever relinquish her “right to go to trial, the right to testify, to call witnesses, [and to] cross-examine the People’s witness[es].” Critically, there was no discussion of the privilege against self-incrimination, the right to be tried by a jury or whether defendant had conferred with counsel and understood the constitutional rights that she was automatically waiving by pleading guilty … . People v Glover, 2019 NY Slip Op 00325, Third Dept 1-17-19

 

DEFENDANT WAS REQUIRED TO WEAR AN ALCOHOL MONITORING DEVICE AS A CONDITION OF PROBATION BUT WAS UNABLE TO PAY FOR IT, THE PEOPLE DID NOT DEMONSTRATE DEFENDANT’S FAILURE TO PAY WAS WILLFUL, THEREFORE COUNTY COURT WAS OBLIGATED TO CONSIDER PUNISHMENT OTHER THAN INCARCERATION (THIRD DEPT).

The Third Department, reversing County Court, determined the People did not make a sufficient showing that defendant willfully failed to pay for the alcohol monitoring device (SCRAM bracelet). Wearing the bracelet, which cost $11 per day, was a requirement of defendant’s probation. County Court was obligated to consider punishment other than imprisonment because the evidence supported defendant’s inability to pay:

We agree with defendant that County Court erred in finding that the People established by a preponderance of the evidence that defendant violated the terms and conditions of his probation by willfully refusing to pay or failing to make sufficient good faith efforts to pay the cost of the SCRAM monitoring. …

… .[T]he record lacks a basis to substantiate a finding that defendant willfully refused to make the required payments. Moreover, the hearing testimony establishes that defendant made sufficient bona fide efforts to acquire the fiscal resources to pay the costs associated with SCRAM monitoring and that he could not do so as a result of his indigence, which resulted, at least in part, from the serious injuries that he sustained in August 2013. In our view, County Court was therefore required to “consider alternate measures of punishment other than imprisonment” and erred in failing to do so … . People v Hakes, 2019 NY Slip Op 00324, Third Dept 1-17-19

 

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CELL PHONE COMPANY WITNESS WAS NOT AN ENGINEER AND SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY AS AN EXPERT ABOUT HOW FAR DEFENDANT’S PHONE WAS FROM THE TOWER, POLICE OFFICER SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY ABOUT THE VICTIM’S IDENTIFICATION OF THE DEFENDANT, JUDGE SHOULD NOT HAVE MARSHALED THE EVIDENCE TO FAVOR THE PROSECUTION, THESE ERRORS, AS WELL AS ADDITIONAL JUDICIAL ERRORS, CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL (FIRST DEPT).

The First Department, reversing defendant’s conviction, described a number of errors which had the cumulative effect of depriving defendant of a fair trial. Those errors include: (1) the witness from the cell phone company was not an engineer and therefore could not provide competent expert opinion about where defendant’s cell phone was in relation to the cell phone tower which picked up the signal; (2) a police officer should not have been allowed to testify that the victim had twice identified the defendant by name; (3) the charge to the jury improperly marshaled the identification evidence in a light favorable to the prosecution; (4) the court should have given the missing witness jury instruction for two lead detectives who had interviewed the victim and a witness; and (5) the judge should not have referenced the defendant’s failure to testify (twice). With respect to the cell tower and identification evidence, the court wrote:

“[T]estimony on how cell phone towers operate must be offered by an expert witness” because an analysis of the possible ranges of cell phone towers and how they operate is beyond a juror’s day-to-day experience and knowledge … . [The witness] was not an engineer and was not qualified, without an engineering background, to reach further conclusions about why defendant’s cell phone hit the Starling Avenue tower, i.e. whether it was because it was closest or strongest … . …

The trial court also permitted a police officer to testify twice, over defense objection, that the victim had identified her attacker as “male Hispanic, bald, by the name of Jose Ortiz.” This too was error. “Testimony by one witness (e.g., a police officer) to a previous identification of the defendant by another witness (e.g., a victim) is inadmissible” … . People v Ortiz, 2019 NY Slip Op 00221, First Dept 1-15-19

 

THE BATSON RECONSTRUCTION HEARING, HELD AFTER THE MATTER WAS SENT BACK BECAUSE OF THE LACK OF AN ADEQUATE RECORD FOR APPEAL, WAS ITSELF DEFICIENT, THE ORIGINAL PROSECUTOR DID NOT TESTIFY AND THE NOTES OF THE ORIGINAL PROSECUTOR WERE NOT PROVIDED TO THE COURT, CONVICTIONS REVERSED AND INDICTMENT DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over two separate dissenting opinions, reversing the defendant’s convictions and dismissing the indictment, determined the Batson reconstruction hearing, held after the matter was sent back to the trial court because the record on appeal was not sufficient, did not demonstrate that the prosecution’s peremptory challenges to African-American-male venire persons were justified by nondiscriminatory reasons. The Batson reconstruction hearing was itself deficient because it was held with a different prosecutor and the original prosecutor’s notes were not provided, nor did the orignal prosecutor testify:

The purpose of a Batson reconstruction hearing is to attempt to recreate, after the fact, a record of the prosecutor’s proffered justifications for striking certain venire persons. At such a hearing, it is typical to rely on the contemporaneous notes of the prosecutor and to elicit testimony from him or her. The prosecutor testifies as a sworn witness, and is subject to cross-examination concerning the strike or strikes … .

“[T]here is no better evidence of a prosecutor’s intent than her notes from jury selection”… ; indeed, seminal opinions on Batson have referred to jury selection notes as evidence of prosecutorial bias (see e.g. Foster v Chatman, ___ US ___, 136 S Ct 1737, 1755 [2016]). In Foster, the prosecutor’s notes were not disclosed until post-conviction proceedings years later. The notes showed the letter “B” next to the names of the African American jurors and their names highlighted in green pen. Three decades after trial, the contents of the notes led the Supreme Court to reverse the defendant’s conviction.

No testimony or notes were offered at this Batson reconstruction hearing. The ADA who conducted the voir dire did not appear and his notes were never disclosed. The ADA at the reconstruction hearing could only speculate as to the motives of his colleague. This procedure was insufficient to satisfy the requirements of Batson. People v Watson, 2019 NY Slip Op 00217, First Dept 1-10-19

 

 

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FAILURE TO INSTRUCT THE JURY ON THE MEANING OF ‘DEPRIVE’ WITH RESPECT TO THE LARCENY ELEMENT OF ROBBERY REQUIRED REVERSAL OF DEFENDANT’S FELONY MURDER AND CRIMINAL POSSESSION OF A WEAPON CONVICTIONS (FIRST DEPT).

The First Department, reversing defendant’s felony murder and criminal possession of a weapon convictions, determined that the jury should have been instructed on the definition of “deprive” with respect to the larceny aspect of the underlying robbery:

In connection with the larceny element of attempted robbery, the offense underlying the felony murder charge, the court, upon defense counsel’s request, should have instructed the jury on the definition of “deprive” … . The failure to so charge the jury as requested constitutes reversible error, since such omission “could have misled the jury into thinking that any withholding, permanent or temporary, constituted larceny”… . Indeed, “the concepts of deprive’ and appropriate’ . . . are essential to a definition of larcenous intent’ and they connote a purpose . . . to exert permanent or virtually permanent use thereof'” … . It is the function of the jury to determine whether defendant intended to rob the victim and permanently keep the property taken from him. By failing to give the requested charge, the court usurped that function.

While there are some cases in which the court’s omission of the definition of a term or terms may constitute harmless error, under the facts of this case, the error was not harmless … . People v Ataroua, 2019 NY Slip Op 00197, First Dept 1-10-19

 

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NO EVIDENCE THE VICTIM, AS OPPOSED TO AN EYEWITNESS, SAW A FIREARM, ROBBERY FIRST CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s robbery first conviction, determined that, although a witness saw a firearm, the victim did not:

… [T]he evidence did not establish the element of display of what appeared to be a firearm … . The robbery was accomplished by assaulting the victim and taking his wallet. Although an eyewitness saw the display of what appeared to be a firearm, there was no evidence that the victim ever saw it … . People v Allende, 2019 NY Slip Op 00195, First Dept 1-10-19

 

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INSUFFICIENT EVIDENCE DEFENDANT SEX OFFENDER WAIVED HIS PRESENCE AT THE SORA RISK ASSESSMENT HEARING, ISSUE CONSIDERED IN THE INTEREST OF JUSTICE, NEW HEARING ORDERED (SECOND DEPT).

The Second Department, exercising its interest of justice appellate jurisdiction, determined the evidence that defendant waived his presence at the SORA risk assessment hearing was insufficient. A new hearing was ordered:

A sex offender facing risk level classification under SORA has a due process right to be present at the SORA hearing… . “To establish whether a defendant, by failing to appear at a SORA hearing, has waived the right to be present, evidence must be shown that the defendant was advised of the hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his or her absence” … . Reliable hearsay evidence, such as an affidavit, is admissible to establish waiver … . Here, the sole “evidence” that the defendant waived the right to be present was the statement by the court that it was informed off-the-record by the New York City Police Department Sex Offender Monitoring Unit that the defendant resided at an address in Manhattan and that notice of the hearing was sent to that address and not returned as undeliverable. There was no evidence, hearsay or otherwise, that the defendant expressed a desire to forgo his presence at the hearing … . The fact that defense counsel had “no evidence to indicate” that the defendant did not receive notice of the hearing was not sufficient to indicate a waiver. People v Barney, 2019 NY Slip Op 00153, Second Dept 1-9-19

 

BECAUSE THE INSTANT CONVICTION WAS FOR A CLASS A FELONY, SUPREME COURT WAS NOT AUTHORIZED TO SENTENCE DEFENDANT AS A SECOND FELONY OFFENDER (SECOND DEPT).

The Second Department, in affirming defendant’s conviction and sentence, noted that defendant should not have been sentenced as a second felony offender because the instant conviction was for a class A felony:

… [T]he Supreme Court was not authorized to adjudicate the defendant a second violent felony offender since the instant conviction was for a class A felony rather than a class B, C, D, or E felony (see Penal Law §§ 70.02[1]; 70.04[1][a]). Therefore, we vacate the defendant’s adjudication as a second violent felony offender. However, since the statutory sentencing parameters for a second violent felony offender do not include any specifications as to proper sentences for a class A felony because that crime is more serious than the crimes specified in those parameters, the error could not have affected the sentence imposed to the defendant’s detriment (see Penal Law § 70.04[1][a]… ). Therefore, the term of imprisonment imposed upon the defendant’s conviction of a class A felony should not be disturbed. People v Young, 2019 NY Slip Op 00152, Second Dept 1-9-19

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