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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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BECAUSE THE COURT DID NOT IMPOSE CONDITIONS ON THE PLEAS AND SENTENCING COMMITMENTS, THE SENTENCE SHOULD NOT HAVE BEEN ENHANCED BASED ON THE PURPORTED VIOLATIONS OF CERTAIN CONDITIONS, INCLUDING THE DEFENDANT’S FAILURE TO APPEAR AT SENTENCING, ALTHOUGH THE ISSUE WAS NOT PRESERVED, THE APPELLATE COURT CONSIDERED IT IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department determined the sentencing court should not have imposed an enhanced sentence (consecutive instead of concurrent) because defendant did not appear at sentencing because the court had not imposed his appearance as a condition for the pleas and sentencing commitments. Although the issue was not preserved, the court considered the appeal in the interest of justice:

The defendant entered pleas of guilty under three separate indictments. He was promised that the sentences imposed would run concurrently. The defendant did not appear in court on the scheduled sentencing date. Subsequently, in rendering the judgments of conviction, the Supreme Court directed, inter alia, the sentence imposed on the second judgment to run consecutively to the sentence imposed on the first judgment.  …

… [W]e exercise our interest of justice jurisdiction to vacate the sentences. Since the record does not establish that the Supreme Court imposed as a condition on the pleas and sentencing commitments that the defendant return on the scheduled sentencing date, the court should not have imposed enhanced sentences based on the defendant’s violation of this purported condition … . To the extent that the court also based its imposition of enhanced sentences on the defendant having violated certain other purported conditions, it likewise erred, since it had not imposed these conditions on the pleas and sentencing commitments. People v Andre, 2019 NY Slip Op 00136, Second Dept 1-9-19

 

COURT NEVER RULED ON WHETHER THE PROSECUTOR’S INITIAL REASON FOR EXCLUDING AN AFRICAN-AMERICAN POTENTIAL JUROR WAS A CREDIBLE RACE-NEUTRAL REASON, THE REASONS OFFERED AFTER THE JUROR WAS QUESTIONED FURTHER SHOULD NOT HAVE BEEN CONSIDERED, NEW TRIAL ORDERED (SECOND DEPT

The Second Department, reversing defendant’s conviction, determined the trial court did not handle the Batson challenge to the prosecutor’s striking an African American juror correctly. When asked about her reasons, the prosecutor said the potential juror was too young to sit on a murder trial. Upon further questioning the potential juror had difficulty understanding and answering questions. But the court never ruled whether the prosecutor’s initial reason for excluding the potential juror, his youth, was a credible race-neutral explanation:

New York courts apply the three-step test of Batson v Kentucky (476 US 79) to determine whether a party has used peremptory challenges to exclude potential jurors for an impermissible discriminatory reason… . “The first step requires that the moving party make a prima facie showing of discrimination in the exercise of peremptory challenges; the second step shifts the burden to the nonmoving party to provide race-neutral reasons for each juror being challenged; and the third step requires the court to make a factual determination as to whether the race-neutral reasons are merely a pretext for discrimination” … .

… [T]he Supreme Court failed in its duty to determine whether the prosecutor’s race-neutral explanations were credible (see … United States v Taylor, 636 F3d 901, 905 [7th Cir] [“when ruling on a Batson challenge, the trial court should consider only the reasons initially given to support the challenged strike, not additional reasons offered after the fact”]). People v Alexander, 2019 NY Slip Op 00135, Second Dept 1-9-19

 

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ALLOCUTION CAST DOUBT ABOUT GUILT IN THIS JUVENILE DELINQUENCY PROCEEDING, AN EXCEPTION TO THE PRESERVATION REQUIREMENT FOR APPEAL (SECOND DEPT).

The Second Department, reversing Family Court, determined that the plea allocution was defective in this juvenile delinquency proceeding. The allocution did not support the elements of the charged offense (grand larceny fourth degree if committed by an adult) and the juvenile’s foster care planner was not questioned about the offense, a defect which cannot be waived. Although no motion to withdraw was made, the allocution cast significant doubt about guilt which constitutes an exception to the the preservation requirement for appeal:

The appellant did not move to withdraw his admission on the grounds raised on appeal … . However, this is one of the ” rare case[s] . . . where the [appellant’s] recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the [appellant’s] guilt,’ [which] fall[s] into the narrow exception to the preservation requirement”… . In addition, the appellant was not required to preserve his contention that the Family Court erred in failing to obtain an allocution from the foster care case planner, since the statutory requirement of such an allocution may not be waived … . * * *

The Family Court did not elicit any additional details concerning the incident in order to clarify how the appellant came to be in possession of the $5 such that it could be concluded that he took it from the boy’s person within the meaning of Penal Law § 155.30(5). Thus, the court “did not elicit a sufficient factual basis to support [the appellant’s] admission'” … .

In addition, the appellant’s admission was defective since his foster care case planner was present, but the Family Court failed to ascertain through allocution of the foster care case planner, as a person legally responsible for the appellant’s care, “that (a) [the appellant] committed the act or acts to which he [was] entering an admission, (b) he [was] voluntarily waiving his right to a fact-finding hearing, and (c) he [was] aware of the possible specific dispositional orders” … . Matter of Richard S., 2019 NY Slip Op 00130, Second Dept 1-9-19

 

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DEFENDANT WAS CONVICTED OF 37 COUNTS OF SEXUAL OFFENSES, THE TESTIMONY AT TRIAL RENDERED 26 COUNTS DUPLICITOUS REQUIRING REVERSAL (THIRD DEPT).

The Third Department determined that 26 of the 37 sexual offense counts on which defendant was convicted must be reversed because they were rendered duplicitous by the trial testimony:

An indictment count is duplicitous when it charges more than one crime that is completed by a discrete act in the same count … . “Even if a count is valid on its face, it is nonetheless duplicitous where the evidence presented to the grand jury or at trial ‘makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict'” … . Thus, when “the trial testimony provides evidence of repeated acts that cannot be individually related to specific counts in the indictment, the prohibition against duplicitousness has been violated”  … . …

For example, counts 1 and 2 of the indictment used identical language to charge defendant with predatory sexual assault against a child on the ground that he committed the crime of criminal sexual assault in the first degree against victim 1 during the summer of 2006 … . Victim 1 testified that, during the summer of 2006 when he was 12 years old, defendant put his mouth on victim 1’s penis “[a]t least two times.” Likewise, counts 5 and 6 charged defendant with criminal sexual act in the second degree consisting of oral sexual conduct with victim 1 during the summer of 2007, counts 7 and 8 charged defendant with the commission of the same crime during the summer of 2008, counts 9 through 12 charged defendant with the commission of two counts of criminal sexual act in the third degree in each of the summers of 2009 and 2010, and count 13 charged defendant with the commission of sexual abuse in the second degree during the summer of 2006. Victim 1 testified that the charged conduct occurred at least twice during each of the specified time periods. He provided no further specifics about the frequency or timing of any particular act, and the prosecutor did not seek to distinguish among them by, for example, drawing victim 1’s attention to the first incident in one of the specified time periods and then asking him to describe that particular event … .  Likewise, the jury was given no instructions that distinguished between the counts pertaining to any of the time periods in a way that would have permitted it to relate each of the counts to a specific act … . People v Madsen, 2019 NY Slip Op 00003, Third Dept 1-3-19

 

THE MAJORITY CONCLUDED COMMUNITY OPPOSITION TO PETITIONER’S RELEASE ON PAROLE WAS PROPERLY CONSIDERED BY THE BOARD OF PAROLE AND UPHELD THE DENIAL OF PAROLE, TWO-JUSTICE DISSENT ARGUED COMMUNITY OPPOSITION IS NOT INCLUDED IN THE STATUTORY FACTORS TO BE CONSIDERED BY THE BOARD (THIRD DEPT).

The Third Department, over a two-justice dissent, determined that petitioner’s request to be released on parole was properly denied. The majority held that community opposition to release is a factor to be considered. The dissenters argued that community opposition is not included in the statutory factors to be considered:

By statutorily protecting the confidentiality of those members of the community — in addition to the crime victim or victim’s representative — who choose to express their opinion, either for or against, an inmate’s bid to obtain parole release, the Legislature demonstrated a clear intent that such opinions are a factor that may be considered by respondent in rendering its ultimate parole release decision. Significantly, such statements and opinions are germane to respondent’s determination as to whether an inmate will live and remain at liberty without violating the law, whether such release is compatible with the welfare of society and whether an inmate’s release will deprecate the seriousness of the underlying crime as to undermine respect for the law — statutory factors that respondent must consider in rendering its parole release determinations (see Executive Law § 259-i [2] [c] [A] …).

From the Dissent: Respondent based its denial of petitioner’s parole, in part, on “consistent community opposition” — an element that is not among the factors that the Legislature directed respondent to consider in making parole release determinations (see Executive Law § 259-i [2] [c] [A]). Although the majority’s approach may have some practical appeal, we are bound by the governing law. It is well established that respondent may not rely upon factors outside the scope of Executive Law § 259-i in making decisions concerning parole release … . Matter of Applewhite v New York State Bd. of Parole, 2018 NY Slip Op 08989, Third Dept 12-27-18

 

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