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NO EVIDENCE THREE WEAPONS IN A SAFE WERE POSSESSED BY THREE SEPARATE ACTS, SENTENCES SHOULD HAVE BEEN CONCURRENT, DECISIONS TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED (SECOND DEPT).

The Second Department determined there was no indication the three weapons in a safe were possessed by three separate acts. The sentences therefore should have been concurrent:

… [T]he defendant’s convictions of criminal possession of a weapon in the third degree … were based upon his act of constructively possessing three guns in a safe on December 2, 2009 … . Since these convictions were based upon the defendant’s constructive possession of guns in the same location at the same time, and there was no proof of any separate act by the defendant which constituted possession of one of the guns, as opposed to either of the other two guns, the convictions were based upon the same act, and the sentencing court was required to impose concurrent sentences … . … [T]he mere fact that the defendant possessed three guns does not prove three separate acts of possession, and, to the extent that our decisions in People v Horn (196 AD2d 886) and People v Negron (184 AD2d 532, 533) can be read to so hold, those cases should no longer be followed. In an analogous context, the Court of Appeals held, to the contrary, that a sentencing court was not authorized to impose consecutive sentences on a defendant’s convictions of three counts of possessing a sexual performance by a child, despite the defendant’s possession of separate images depicting child pornography, because the People failed to allege or adduce facts demonstrating separate acts of downloading the digital images (see People v Dean, 8 NY3d at 930-931). Similarly, possession of three guns without further proof of separate and distinct acts of possession cannot support consecutive sentences for three counts of criminal possession of a weapon in the third degree … . People v Smith, 2018 NY Slip Op 08695, Second Dept 12-19-18

SENTENCING

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THE PROOF REQUIREMENTS FOR DEPRAVED INDIFFERENCE MURDER CHANGED WHEN THE COURT OF APPEALS DECIDED PEOPLE V PAYNE, BEFORE DEFENDANT’S CONVICTION BECAME FINAL, SUPREME COURT SHOULD HAVE HEARD DEFENDANT’S MOTION TO VACATE THE CONVICTION AND SHOULD HAVE REVERSED THE DEPRAVED INDIFFERENCE MURDER CONVICTION AND DISMISSED THE COUNT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) the law on the proof requirements for depraved indifference murder changed when People v Payne (3 NY2d 266) was decided, not later when People v Feingold (7 NY3d 288) was decided; (2) defendant’s judgment of conviction did not become final until after People v Payne was decided; (3) therefore defendant’s motion to vacate his judgment of conviction should have been heard on the merits; and (4) the evidence of depraved indifference murder was not sufficient to support the verdict:

As noted, the motion court determined that the law regarding depraved indifference murder did not change until People v Feingold, and that the defendant is therefore not entitled to any benefit under the new law … . However, in People v Wilkens (126 AD3d 1293) and People v Baptiste (51 AD3d 184), the [3rd] and [4th] Departments of the Appellate Division each held that the law changed on October 19, 2004, when the Court of Appeals decided People v Payne. We agree with the [3rd] and [4th] Departments that People v Payne signaled the change in the law of depraved indifference murder. …

Under the unique circumstances of this case, where the cases here relied upon … had not yet been decided at the time that the direct appeal was perfected, we find that the failure to challenge the legal sufficiency of the evidence on direct appeal was justified. …

… [T]he trial evidence was not legally sufficient to support a verdict of guilt of depraved indifference murder … . People v Hernandez, 2018 NY Slip Op 08690, Second Dept 12-19-18

 

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CONSECUTIVE SENTENCES NOT SUPPORTED BY ALLEGATIONS OR PLEA ALLOCUTION, NO ALLEGATION THE THREE CRIMINAL POSSESSION OF A WEAPON COUNTS WERE SEPARATE ACTS (SECOND DEPT).

The Second Department determined consecutive sentences should not have been imposed for the three counts of criminal possession of a weapon to which defendant pled guilty. There were no allegations of three separate acts of possession:

Sentences imposed for two or more offenses may not run consecutively where, inter alia, “a single act constitutes two offenses” … . Conversely, consecutive sentences may be imposed when, among other things, “the facts demonstrate that the defendant’s acts underlying the crimes are separate and distinct” … . The People bear the burden of establishing the legality of consecutive sentencing … .

Here, no facts were alleged in the Superior Court Information or adduced at the defendant’s plea allocution which establish three separate acts of possession … . Accordingly, there was no basis for imposing consecutive sentences for three counts of criminal possession of a weapon in the third degree … . People v Bailey, 2018 NY Slip Op 08674, Second Dept 12-19-18

SENTENCING

COUNTY COURT SHOULD NOT HAVE IMPANELED AN ANONYMOUS JURY (CT APP).

The Court of Appeals affirmed the appellate division, holding that County Court should not have empaneled an anonymous jury:

The trial court committed reversible error by empaneling an anonymous jury. Assuming that trial courts may, under certain circumstances, anonymize jurors, here County Court acted without any factual predicate for the extraordinary procedure. Indeed, the trial court expressly based its decision to empanel an anonymous jury on anecdotal accounts from jurors in unrelated cases and, then, exacerbated the error by taking “no steps to lessen the potential prejudice” to defendants … . People v Flores, 2018 NY Slip Op 08540, CtApp 12-13-18

 

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A SENTENCING COURT MAY REQUIRE A DEFENDANT, AS A CONDITION OF PROBATION, TO PAY FOR ELECTRONIC MONITORING, IF A DEFENDANT CLAIMS AN INABILITY TO PAY, A HEARING MUST BE HELD TO DETERMINE WHETHER ANOTHER ALTERNATIVE TO INCARCERATION IS APPROPRIATE AND, IF NOT, THE DEFENDANT MAY BE SENTENCED TO PRISON (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a dissenting opinion, determined that the sentencing court, as a condition of probation, may require a defendant to pay for a Secure Continuous Remote Alcohol Monitoring (SCRAM) bracelet. Defendant, who had pled guilty to felony driving while intoxicated, made several monthly payments for the bracelet but then stopped paying and the monitoring company removed the bracelet. County Court then sentenced defendant to prison. The 3rd Department held that the sentence was illegal because the court cannot require a defendant to pay the cost of electronic monitoring:

Were we to hold that any monetary component of a condition that must be borne by a defendant per se invalidated said condition, sentencing courts would be divested of their broad authority to impose a myriad of probationary requirements, and consequently, would, in many instances, no longer view release into the community as a viable alternative to incarceration. In light of this, the requirement that defendant wear and pay for a SCRAM bracelet was well within County Court’s statutory authority under Penal Law § 65.10 (4).

This is not to say that requiring a defendant to wear and pay for an electronic monitoring device will always be reasonable. Courts cannot impose a condition of probation that includes costs a particular defendant cannot feasibly meet. Nor can courts incarcerate a defendant who has initially agreed to meet a condition requiring a payment, but who subsequently becomes unable to do so. * * *

… [I]f, at the imposition of the sentence or during the course of probation, a defendant asserts that they are unable to meet the financial obligations attendant to a certain condition, the sentencing court must hold a hearing on the matter … . The defendant must be given the opportunity to be heard in person, present witnesses, and offer documentary evidence establishing that they made sufficient bona fide efforts to pay … . If, after such inquiry, the sentencing court determines that the defendant has adequately demonstrated an inability to pay the costs associated with a particular condition despite bona fide efforts to do so, the court must attempt to fashion a reasonable alternative to incarceration … . Conversely, if the sentencing court determines, by a preponderance of the evidence … , that “a probationer has willfully refused to pay . . . when [that defendant] can pay, the [court] is justified in revoking probation and using imprisonment as an appropriate penalty for the offense” … . People v Hakes, 2018 NY Slip Op 08538, CtApp 12-13-18

 

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DEFENDANT CANNOT PLEAD GUILTY TO A VIOLATION OF A STATUTE WHICH HAD NOT BEEN ENACTED AT THE TIME OF THE OFFENSE, THE DEFECT IS JURISDICTIONAL AND SURVIVES A WAIVER OF APPEAL (THIRD DEPT).

The Third Department held that sexual abuse first degree charge in the superior court information (SCI) was based on a statute which had not yet been enacted at the time of the offense. The defect was jurisdictional and survived the waiver of appeal:

Initially, defendant contends that the waiver of indictment and the SCI are jurisdictionally defective with respect to the crime of sexual abuse in the first degree under Penal Law § 130.65 (4) because this provision of the Penal Law was not in effect in 2009 when the alleged criminal conduct occurred. Preliminarily, we note that defendant is not precluded by her unchallenged waiver of the right to appeal from raising this jurisdictional challenge … . The People concede that a jurisdictional defect exists inasmuch as the relevant Penal Law provision did not become effective until November 1, 2011 … , and a defendant may not be charged with a crime that does not exist at the time that the act was committed … . Consequently, defendant’s plea of guilty to sexual abuse in the first degree must be vacated and count 2 of the SCI charging her with this crime must be dismissed. People v Gannon, 2018 NY Slip Op 08582, Thrid Dept 12-13-18

 

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THE MURDER COUNT, WHICH SHOULD HAVE BEEN DISMISSED BECAUSE THE PEOPLE DID NOT SEEK PERMISSION TO RESUBMIT IT AFTER THE GRAND JURY DEADLOCKED ON THE CHARGE, DID NOT TAINT THE CONVICTION ON THE MANSLAUGHTER COUNT UNDER A SPILL-OVER ANALYSIS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a concurring opinion, reversing the appellate division, determined the murder count in the second indictment should have been dismissed because the People did not seek court permission to re-present it after the grand jury which issued the first indictment deadlocked on that charge. But the court further held the murder count, on which defendant was acquitted, did not taint the manslaughter conviction under a spill-over analysis. The manslaughter count was a valid count in the first indictment (both indictments were tried together):

The People’s failure to obtain court permission to resubmit a murder count to a new grand jury after the first grand jury deadlocked on that charge violated Criminal Procedure Law § 190.75 (3), and Supreme Court erred in denying defendant’s pretrial motion to dismiss the murder count in the second indictment on that ground.  * * *

Under the particular circumstances of this case, we conclude that defendant is not entitled to a new trial on the manslaughter count. The People assert that all of the evidence admitted to prove defendant’s guilt of murder in the second degree was also admissible to prove his guilt of manslaughter in the first degree, and defendant does not contend otherwise. … [T]he presence of the tainted murder count here did not result in the admission of any prejudicial evidence that the jury would have been unable to consider if the murder count had been dismissed … . People v Allen, 2018 NY Slip Op 08537, CtApp 12-13-18

 

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ABSENCE OF A SEXUAL RELATIONSHIP IS NOT NECESSARILY DETERMINATIVE IN AN ASSESSMENT OF WHETHER A PARTY IS A MEMBER OF A HOUSEHOLD FOR PURPOSES OF JURISDICTION OVER A FAMILY OFFENSE PROCEEDING, FAMILY COURT SHOULD NOT HAVE MADE A FINDING RESPONDENT WAS NOT A MEMBER OF THE HOUSEHOLD WITHOUT HOLDING A HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined that Family Court should not have found that respondent and petitioner did not have an intimate relationship without holding a hearing. Petitioner sought an order of protection against respondent. Under the Family Court Act the court has jurisdiction in a family offense proceeding only if the parties are deemed to have an intimate relationship. Family Court found that, because the relationship was not sexual, it did not constitute an intimate relationship. The Second Department noted that the existence of a sexual relationship is not necessarily determinative and sent the matter back for a hearing:

The Family Court is a court of limited subject matter jurisdiction and “cannot exercise powers beyond those granted to it by statute”… . Pursuant to Family Court Act § 812(1), the Family Court’s jurisdiction in family offense proceedings is limited to certain prescribed acts that occur “between spouses or former spouses, or between parent and child or between members of the same family or household” … .

Effective July 21, 2008 … , the Legislature expanded the definition of “members of the same family or household” to include, among others, “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” (Family Ct Act § 812[1][e] …). The Legislature also expressly excluded from the definition of “intimate relationship” a “casual acquaintance” and “ordinary fraternization between two individuals in business or social contexts”… . Beyond those delineated exclusions, the Legislature left it to the courts to determine on a case-by-case basis whether a particular relationship constitutes an “intimate relationship” within the meaning of Family Court Act § 812(1)(e). The Legislature provided that “[f]actors the court may consider in determining whether a relationship is an intimate relationship’ include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship”… . The determination of whether persons are or have been in an “intimate relationship” within the meaning of the statute may require a hearing … . Matter of Raigosa v Zafirakopoulos, 2018 NY Slip Op 08485, Second Dept 12-12-18

 

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WHETHER A JUVENILE’S STATEMENT TO THE POLICE WAS VOLUNTARILY GIVEN PRESENTED A MIXED QUESTION OF LAW AND FACT WHICH IS NOT REVIEWABLE BY THE COURT OF APPEALS, TWO DISSENTERS ARGUED JUVENILES SHOULD NOT BE INTERROGATED OUTSIDE THE PRESENCE OF THEIR ADULT LEGAL GUARDIANS (CT APP).

The Court of Appeals, over a two-judge dissent, determined the finding that a juvenile’s statement to police was voluntarily given presented a mixed question of law fact which is not reviewable by the Court of Appeals. The dissenters argued juveniles should not be interrogated outside the presence of their adult guardians. Matter of Luis P., 2018 NY Slip Op 08427, CtApp 12-11-18

 

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ALTHOUGH DEFENDANT WAS REQUIRED TO REGISTER AS A SEX OFFENDER IN VIRGINIA, THERE WAS NO SEX-RELATED ELEMENT IN THE VIRGINIA OFFENSE, DEFENDANT NEED NOT REGISTER AS A SEX OFFENDER IN NEW YORK (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a three-judge dissenting opinion, determined that defendant need not register as a sex offender in New York based upon a murder conviction in Virginia, even though Virginia law required such registration. There was no sex-related element in the offense. Defendant, in 1989, at age 19, murdered his half-sister because she was harassing him. At the time, he said he was “hearing voices telling him to kill people:”

Blind deference to another jurisdiction’s registry without asking, fundamentally, whether that jurisdiction considers its own registrant a sex offender would contravene the plain and limiting language of section 168-a (2) (d) (ii) and could subject an entire class of defendants with no relation to SORA’s purpose to its strict requirements. * * *

In concluding that SORA does not require defendant’s registration because Virginia does not consider defendant a sex offender, we reserve weightier issues of a foreign registry’s potential conflict with New York’s due process guarantees or public policy for another day. …

… Our holding today merely requires a court or the Board to determine—not based on “intuition,” but rather on the offense of conviction and its relation to the foreign registry statute—whether the out-of-state defendant is considered a sex offender before requiring registration under SORA. …

Defendant’s out-of-state felony conviction did not require him to “register as a sex offender” in Virginia under Correction Law § 168-a (2) (d) (ii) and, thus, he should not be required to register as a sex offender in New York. People v Diaz, 2018 NY Slip Op 08424, CtApp 12-11-18

 

 

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