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ALTHOUGH THE CRIME WITH WHICH DEFENDANT WAS CHARGED, ATTEMPTED DISSEMINATION OF INDECENT MATERIAL TO A MINOR FIRST DEGREE, CAN BE A FELONY SEX OFFENSE, THE ABSENCE OF STATUTORILY REQUIRED LANGUAGE IN THE ACCUSATORY INSTRUMENT PRECLUDED SENTENCING DEFENDANT AS A FELONY SEX OFFENDER (THIRD DEPT).

The Third Department determined the absence of statutorily-required language in the accusatory instrument precluded sentencing defendant as a felony sex offender:

Although a conviction of attempted dissemination of indecent material to a minor in the first degree (see Penal Law §§ 110.00, 235.22) can be considered a felony sex offense subject to sentencing in accordance with Penal Law § 70.80, the accusatory instrument must specify that the offense is charged “as a sexually motivated felony” (CPL 200.50 [4]; see Penal Law § 130.91 [2]). Here, the accusatory instrument did not contain the requisite language, nor did it make any reference to Penal Law § 130.91. As such, defendant was not subject to the sentencing provisions of Penal Law § 130.91, rendering the imposed sentence illegal. People v Lavelle, 2018 NY Slip Op 08378, Third Dept 12-6-18

CRIMINAL LAW (SENTENCING, ALTHOUGH THE CRIME WITH WHICH DEFENDANT WAS CHARGED, ATTEMPTED DISSEMINATION OF INDECENT MATERIAL TO A MINOR FIRST DEGREE, CAN BE A FELONY SEX OFFENSE, THE ABSENCE OF STATUTORILY REQUIRED LANGUAGE IN THE ACCUSATORY INSTRUMENT PRECLUDED SENTENCING DEFENDANT AS A FELONY SEX OFFENDER (THIRD DEPT))/SEX OFFENDERS (SENTENCING, ALTHOUGH THE CRIME WITH WHICH DEFENDANT WAS CHARGED, ATTEMPTED DISSEMINATION OF INDECENT MATERIAL TO A MINOR FIRST DEGREE, CAN BE A FELONY SEX OFFENSE, THE ABSENCE OF STATUTORILY REQUIRED LANGUAGE IN THE ACCUSATORY INSTRUMENT PRECLUDED SENTENCING DEFENDANT AS A FELONY SEX OFFENDER (THIRD DEPT))/DISSEMINATION OF INDECENT MATERIAL TO A MINOR (SENTENCING, ALTHOUGH THE CRIME WITH WHICH DEFENDANT WAS CHARGED, ATTEMPTED DISSEMINATION OF INDECENT MATERIAL TO A MINOR FIRST DEGREE, CAN BE A FELONY SEX OFFENSE, THE ABSENCE OF STATUTORILY REQUIRED LANGUAGE IN THE ACCUSATORY INSTRUMENT PRECLUDED SENTENCING DEFENDANT AS A FELONY SEX OFFENDER (THIRD DEPT))

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ALTHOUGH DEFENDANT THREATENED TO KILL A JUDGE THE EVIDENCE DID NOT SUPPORT THE TERRORISM CONVICTION, THERE WAS NO EVIDENCE THE THREAT WAS MADE TO INFLUENCE OR AFFECT THE POLICY OR CONDUCT OF A GOVERNMENTAL UNIT, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE REVIEW (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction under New York’s terrorism statute, applying a weight of the evidence review, determined that, although the defendant threatened to kill a judge in letters to his wife, there was no proof the threat was made to influence or affect the policy or conduct of a unit of government:

As relevant here, “[a] person is guilty of making a terroristic threat when[,] with intent to . . . influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination or kidnapping, he or she threatens to commit or cause to be committed a specified offense and thereby causes a reasonable expectation or fear of the imminent commission of such offense”… .

… [C]ritically missing is evidence demonstrating that defendant intended to influence a policy of a governmental unit by intimidation or coercion or affect the conduct of a governmental unit — a necessary element of the crime of making a terroristic threat … . …

… [T]he letters here do not indicate that defendant, by threatening violent acts, intended to influence the judge’s policy or conduct. Indeed, the record reflects that, in the time between when the two letters were written, defendant was granted visitation by the subject judge. In our view, they reflect defendant’s vented anger towards those individuals involved in his Family Court proceedings … . … [V]iewing the evidence in a neutral light, it cannot be concluded that defendant intended by his actions to influence a governmental policy or affect a governmental unit and, therefore, the verdict finding defendant guilty of making a terroristic threat is against the weight of the evidence … . People v Richardson, 2018 NY Slip Op 08368, Thirid Dept 12-6-18

CRIMINAL LAW (ALTHOUGH DEFENDANT THREATENED TO KILL A JUDGE THE EVIDENCE DID NOT SUPPORT THE TERRORISM CONVICTION, THERE WAS NO EVIDENCE THE THREAT WAS MADE TO INFLUENCE OR AFFECT THE POLICY OR CONDUCT OF A GOVERNMENTAL UNIT, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE REVIEW (THIRD DEPT))/APPEALS (CRIMINAL LAW, ALTHOUGH DEFENDANT THREATENED TO KILL A JUDGE THE EVIDENCE DID NOT SUPPORT THE TERRORISM CONVICTION, THERE WAS NO EVIDENCE THE THREAT WAS MADE TO INFLUENCE OR AFFECT THE POLICY OR CONDUCT OF A GOVERNMENTAL UNIT, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE REVIEW (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, TERRORISM, ALTHOUGH DEFENDANT THREATENED TO KILL A JUDGE THE EVIDENCE DID NOT SUPPORT THE TERRORISM CONVICTION, THERE WAS NO EVIDENCE THE THREAT WAS MADE TO INFLUENCE OR AFFECT THE POLICY OR CONDUCT OF A GOVERNMENTAL UNIT, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE REVIEW (THIRD DEPT))/TERRORISM (CRIMINAL LAW, EVIDENCE ALTHOUGH DEFENDANT THREATENED TO KILL A JUDGE THE EVIDENCE DID NOT SUPPORT THE TERRORISM CONVICTION, THERE WAS NO EVIDENCE THE THREAT WAS MADE TO INFLUENCE OR AFFECT THE POLICY OR CONDUCT OF A GOVERNMENTAL UNIT, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE REVIEW (THIRD DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, TERRORISM, ALTHOUGH DEFENDANT THREATENED TO KILL A JUDGE THE EVIDENCE DID NOT SUPPORT THE TERRORISM CONVICTION, THERE WAS NO EVIDENCE THE THREAT WAS MADE TO INFLUENCE OR AFFECT THE POLICY OR CONDUCT OF A GOVERNMENTAL UNIT, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE REVIEW (THIRD DEPT))/JUDGES (CRIMINAL LAW, APPEALS, TERRORISM, ALTHOUGH DEFENDANT THREATENED TO KILL A JUDGE THE EVIDENCE DID NOT SUPPORT THE TERRORISM CONVICTION, THERE WAS NO EVIDENCE THE THREAT WAS MADE TO INFLUENCE OR AFFECT THE POLICY OR CONDUCT OF A GOVERNMENTAL UNIT, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE REVIEW (THIRD DEPT))

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ANONYMOUS 911 CALL DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION BECAUSE THE INFORMATION WAS NONTESTIMONIAL IN THAT IT DID NOT IDENTIFY THE DEFENDANT BUT MERELY ALERTED THE POLICE TO A BURGLARY IN PROGRESS (SECOND DEPT).

The Second Department noted that the anonymous 911 was properly admitted into evidence, in part, because the call was nontestimonial:

We agree with the Supreme Court’s determination to admit into evidence at the trial a recording of a 911 emergency telephone call made by an unidentified caller. The recording was admissible under the present sense impression exception to the hearsay rule  … . Moreover, the admission of the recording did not violate the defendant’s right of confrontation. Since the primary purpose of the statements by the unidentified caller was to obtain an emergency response to a burglary in progress, the statements were not testimonial in nature … . People v Torres, 2018 NY Slip Op 08337, Second Dept 12-5-18

CRIMINAL LAW (EVIDENCE, ANONYMOUS 911 CALL DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION BECAUSE THE INFORMATION WAS NONTESTIMONIAL IN THAT IT DID NOT IDENTIFY THE DEFENDANT BUT MERELY ALERTED THE POLICE TO A BURGLARY IN PROGRESS (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, ANONYMOUS 911 CALL DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION BECAUSE THE INFORMATION WAS NONTESTIMONIAL IN THAT IT DID NOT IDENTIFY THE DEFENDANT BUT MERELY ALERTED THE POLICE TO A BURGLARY IN PROGRESS (SECOND DEPT))/CONFRONTATION, RIGHT OF (CRIMINAL LAW, ANONYMOUS 911 CALL DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION BECAUSE THE INFORMATION WAS NONTESTIMONIAL IN THAT IT DID NOT IDENTIFY THE DEFENDANT BUT MERELY ALERTED THE POLICE TO A BURGLARY IN PROGRESS (SECOND DEPT))/TESTIMONIAL HEARSAY (CRIMINAL LAW, ANONYMOUS 911 CALL DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION BECAUSE THE INFORMATION WAS NONTESTIMONIAL IN THAT IT DID NOT IDENTIFY THE DEFENDANT BUT MERELY ALERTED THE POLICE TO A BURGLARY IN PROGRESS (SECOND DEPT))

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DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE COUNSEL TOLD THE COURT HE DID NOT WANT ANY PART OF DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT).

The Second Department determined defendant was denied his right to counsel when defense counsel told the court he did not want to be a party to defendant’s motion to withdraw his guilty plea:

The defendant stated that he wished to withdraw his plea of guilty on the grounds that he was innocent and that he was coerced into pleading guilty. His attorney stated that he did not want to be a party to the motion. His attorney further stated: “I fought long and hard to get this. I thought we had this.” The court advised the defendant not to say anything further, and noted that the defendant could be charged with perjury. The court denied the defendant’s motion, and imposed sentence.

The defendant’s right to counsel was adversely affected when his attorney took a position adverse to the defendant with respect to his motion to withdraw his plea of guilty… . The Supreme Court should have assigned a different attorney to represent the defendant before it determined the defendant’s motion … . We further note that, in advising the defendant not to say anything further because he could be charged with perjury, the court deprived the defendant of the opportunity to present his contentions … . People v Sarner, 2018 NY Slip Op 08335, Second Dept 12-5-18

CRIMINAL LAW (RIGHT TO COUNSEL, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE COUNSEL TOLD THE COURT HE DID NOT WANT ANY PART OF DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, RIGHT TO COUNSEL, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE COUNSEL TOLD THE COURT HE DID NOT WANT ANY PART OF DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT))/RIGHT TO COUNSEL (CRIMINAL LAW,  DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE COUNSEL TOLD THE COURT HE DID NOT WANT ANY PART OF DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT))

THE 2015 COURT OF APPEALS DECISION WHICH PROHIBITED INSTRUCTING A JURY THAT IT COULD FIND A DEFENDANT GUILTY OF BOTH DEPRAVED INDIFFERENCE MURDER AND INTENTIONAL (TRANSFERRED INTENT) MURDER OF A SINGLE VICTIM SHOULD NOT BE APPLIED RETROACTIVELY (SECOND DEPT).

The Second Department determined that a 2015 Court of Appeals decision holding that a jury cannot be instructed that it could find defendant guilty of both depraved indifference murder and intentional murder of a single victim should not be applied retroactively. Defendant was shooting at another when he struck and killed his accomplice:

In People v Dubarry (25 NY3d at 165), the Court of Appeals addressed “the novel question” of whether the defendant could be subject to multiple liability for a single homicide based on a theory of transferred intent. “The transferred intent theory, codified under Penal Law § 125.25(1), provides that where the resulting death is of a third person who was not the defendant’s intended victim, the defendant may nonetheless be held to the same level of criminal liability as if the intended victim were killed'” … . The Court in Dubarry concluded that the defendant “cannot be convicted of depraved indifference murder and intentional murder on a transferred intent theory in a case involving the death of the same person,” and, “[t]herefore, the trial court erroneously submitted to the jury both charges in the conjunctive rather than in the alternative” … . * * *

… Dubarry established new precedent and constitutes a new rule of law. Consequently, retroactivity analysis is required under this State’s rules … . “Whether a new rule of New York State law is to be given retroactive effect requires an evaluation of three factors: (1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect on the administration of justice of retroactive application”… . “The second and third factors are, however, only given substantial weight when the answer to the retroactivity question is not to be found in the purpose of the new rule itself'” … . …

As to the first factor, the Court of Appeals in Dubarry clarified the proper application of the transferred intent theory, which should be employed, not to multiply criminal liability, “but to prevent a defendant who has committed all the elements of a crime (albeit not upon the same victim) from escaping responsibility for that crime” … . The Court’s purpose was to dispel confusion concerning the application of the separate mens rea of intent and depraved indifference to the same outcome … , and, similar to Policano, to make future homicide prosecutions more sustainable. Furthermore … , “nonretroactivity poses no danger of a miscarriage of justice” … . The other two Pepper factors also weigh in favor of nonretroactivity. … [T]hree of the departments of the Appellate Division permitted the submission of both intentional (transferred intent) and depraved indifference crimes in the conjunctive. Moreover, “[a]ffording retroactivity to [the] defendant would mean that every defendant to whose case it was relevant, no matter how remote in time and merit, would become [a] beneficiary'” … . People v Drayton, 2018 NY Slip Op 08323, Second Dept 12-5-18

CRIMINAL LAW (THE 2015 COURT OF APPEALS DECISION WHICH PROHIBITED INSTRUCTING A JURY THAT IT COULD FIND A DEFENDANT GUILTY OF BOTH DEPRAVED INDIFFERENCE MURDER AND INTENTIONAL (TRANSFERRED INTENT) MURDER OF A SINGLE VICTIM SHOULD NOT BE APPLIED RETROACTIVELY (SECOND DEPT))/DEPRAVED INDIFFERENCE MURDER (THE 2015 COURT OF APPEALS DECISION WHICH PROHIBITED INSTRUCTING A JURY THAT IT COULD FIND A DEFENDANT GUILTY OF BOTH DEPRAVED INDIFFERENCE MURDER AND INTENTIONAL (TRANSFERRED INTENT) MURDER OF A SINGLE VICTIM SHOULD NOT BE APPLIED RETROACTIVELY (SECOND DEPT))/TRANSFERRED INTENT  (THE 2015 COURT OF APPEALS DECISION WHICH PROHIBITED INSTRUCTING A JURY THAT IT COULD FIND A DEFENDANT GUILTY OF BOTH DEPRAVED INDIFFERENCE MURDER AND INTENTIONAL (TRANSFERRED INTENT) MURDER OF A SINGLE VICTIM SHOULD NOT BE APPLIED RETROACTIVELY (SECOND DEPT))

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DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that defense counsel was ineffective for failing to request a jury instruction on petit larceny as a lesser included offense of robbery. The defense theory was that defendant did not use violence to take $20.00 from the victim but rather used trickery, claiming the victim had broken defendant’s liquor bottle. Defense counsel requested a jury charge on fraudulent accosting, which is not a lesser included offense of robbery:

… [P]etit larceny, which is defined as “steal[ing] property,” qualifies in the abstract as a lesser included offense of robbery in the third degree, which is defined as “forcibly steal[ing] property” … . There is no separate crime of petit larceny “by false pretenses,” and the fact that a nonforcible taking is committed by fraud does not disqualify it as a lesser included offense of robbery.

It is clear that defense counsel’s failure to seek a petit larceny charge was not strategic. The defense strategy was to concede that a nonforcible theft occurred and seek a misdemeanor conviction. There is no merit to the People’s suggestion that counsel may have had a strategic reason for requesting fraudulent accosting but not petit larceny.

We also find that counsel’s failure to request a petit larceny charge was prejudicial. There was plainly a reasonable view of the evidence to support petit larceny. Furthermore, the evidence that the theft was forcible rather than a scam was not so overwhelming as to render a request for petit larceny futile. The victims were tourists who returned to their home country and did not testify, and the sole eyewitness’s ability to establish the element of force was in question. People v Jones, 2018 NY Slip Op 08356, First Dept 12-4-18

CRIMINAL LAW (DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/INEFFECTIVE ASSISTANCE  (DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, LESSER INCLUDED OFFENSES, DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/LESSER INCLUDED OFFENSES (DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/ROBBERY (LESSER INCLUDED OFFENSE, DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/PETIT LARCENY (LESSER INCLUDED OFFENSE, DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))

28 MONTH DELAY DID NOT DEPRIVE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL, DELAY ATTRIBUTED TO PROSECUTION, HOWEVER, WAS CRITICIZED (FIRST DEPT).

The First Department, over a concurring decision, determined that the 28-month delay in prosecution did not rise to the level of a denial of defendant’s constitutional right to a speedy trial. The concurrence agreed but took pains to note that much of the delay attributable to the prosecution was inexcusable:

While the 28—month delay was substantial, it was attributable to both the prosecution and the defense. While most adjournments were either on consent or were otherwise satisfactorily explained, the People failed to provide an adequate reason for their delay in responding to defendant’s motion to compel production of certain medical records and in producing the records. Nevertheless, the charges were very serious and, although defendant was incarcerated the entire time, he has not demonstrated how his defense was impaired by the delay. This is not a case where the delay, and in particular the portion attributable to the People, was so egregious as to warrant dismissal regardless of prejudice … . People v Desselle, 2018 NY Slip Op 08252, First Dept 12-4-18

CRIMINAL LAW (SPEEDY TRIAL, 28 MONTH DELAY DID NOT DEPRIVE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL, DELAY ATTRIBUTED TO PROSECUTION, HOWEVER, WAS CRITICIZED (FIRST DEPT))/SPEEDY TRIAL (28 MONTH DELAY DID NOT DEPRIVE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL, DELAY ATTRIBUTED TO PROSECUTION, HOWEVER, WAS CRITICIZED (FIRST DEPT))

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RESPONDENT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL IN THIS FAMILY OFFENSE PROCEEDING, DEFENSE COUNSEL DID ALMOST NOTHING TO ASSIST HIS CLIENT, FINDINGS AND ORDER OF PROTECTION REVERSED (THIRD DEPT). ​

The Third Department, reversing Family Court, determined that respondent did not receive effective assistance of counsel in this family offense proceeding:

Petitioner filed a family offense petition alleging that respondent harassed and stalked her. …

Viewing the record in its entirety, we agree with respondent’s argument that he was denied meaningful representation … .. Before the hearing, counsel did not engage in any discovery. At the hearing, counsel did not present an opening or closing statement. Nor did counsel object when Family Court questioned petitioner — who appeared pro se — and admittedly assisted her in establishing a foundation for two of her three photographic exhibits. Counsel asked questions of petitioner regarding those exhibits on voir dire, but objected to admission of only one of them, did not request that the court disregard petitioner’s handwritten notes on the exhibits, and did not object to the many hearsay statements made by petitioner. Counsel declined to cross-examine petitioner, at which point the court stated that she had established a prima facie case and did not need to call any further witnesses. Even though respondent had stated — while not under oath — that one of the photographs was taken when the parties were out together, rather than while petitioner was unaware of his presence, counsel did not call respondent or any other witnesses to testify. In short, counsel did almost nothing to assist his client. Matter of Wood v Rebich, 2018 NY Slip Op 08213, Third Dept 11-29-18

FAMILY LAW (ATTORNEYS, RESPONDENT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL IN THIS FAMILY OFFENSE PROCEEDING, DEFENSE COUNSEL DID ALMOST NOTHING TO ASSIST HIS CLIENT, FINDINGS AND ORDER OF PROTECTION REVERSED (THIRD DEPT))/ATTORNEYS (FAMILY LAW, RESPONDENT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL IN THIS FAMILY OFFENSE PROCEEDING, DEFENSE COUNSEL DID ALMOST NOTHING TO ASSIST HIS CLIENT, FINDINGS AND ORDER OF PROTECTION REVERSED (THIRD DEPT))/FAMILY OFFENSE (ATTORNEYS, RESPONDENT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL IN THIS FAMILY OFFENSE PROCEEDING, DEFENSE COUNSEL DID ALMOST NOTHING TO ASSIST HIS CLIENT, FINDINGS AND ORDER OF PROTECTION REVERSED (THIRD DEPT))/CRIMINAL LAW (FAMILY LAW, FAMILY OFFENSE, CRIMINAL LAW, RESPONDENT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL IN THIS FAMILY OFFENSE PROCEEDING, DEFENSE COUNSEL DID ALMOST NOTHING TO ASSIST HIS CLIENT, FINDINGS AND ORDER OF PROTECTION REVERSED (THIRD DEPT))/INEFFECTIVE ASSISTANCE (FAMILY LAW, RESPONDENT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL IN THIS FAMILY OFFENSE PROCEEDING, DEFENSE COUNSEL DID ALMOST NOTHING TO ASSIST HIS CLIENT, FINDINGS AND ORDER OF PROTECTION REVERSED (THIRD DEPT))

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DEFENSE COUNSEL APOLOGIZED TO COUNTY COURT AND INDICATED DEFENSE COUNSEL’S BEHAVIOR MAY HAVE CAUSED THE PEOPLE TO HAVE WITHDRAWN A MORE FAVORABLE PLEA OFFER, COUNTY COURT SHOULD HAVE ASSIGNED SUBSTITUTE COUNSEL AND SHOULD HAVE CONDUCTED AN INQUIRY TO DETERMINE WHETHER THE PEOPLE SHOULD BE COMPELLED TO REOFFER THE PRIOR PLEA DEAL (THIRD DEPT).

The Third Department, reversing County Court, determined County Court should have inquired into defense counsel’s apology for his behavior which may have caused the People to withdraw a more favorable plea offer:

County Court failed to take appropriate action in response to defense counsel’s disclosures. Initially, County Court failed to recognize that defense counsel’s statements disqualified him from continuing to represent defendant, particularly if defense counsel were required to provide testimony regarding the events that allegedly took place on the preceding Friday… . Accordingly, when presented with defense counsel’s statements, County Court should have immediately explained the situation to defendant and adjourned the matter to allow for the substitution of counsel.

Following substitution of counsel, County Court should have conducted a hearing to determine whether defendant received the ineffective assistance of counsel during the plea negotiation process and, thus, was entitled to an order directing the People to reoffer the more favorable plea offer that was allegedly available on the preceding Friday… . County Court, however, failed to appreciate that, if defendant made the requisite showing at that hearing, it could in its discretion direct the People to reoffer the prior, more favorable plea, if it was in fact made… . Indeed, a court may direct the People to reoffer a prior, more favorable plea offer on ineffective assistance of counsel grounds only if a defendant demonstrates (1) the existence of a prior, more favorable plea offer, (2) a reasonable probability that, but for defense counsel’s conduct, he or she would have accepted the prior plea offer, (3) a reasonable probability that the agreement would have been presented to and accepted by the court and (4) that the conviction and/or sentence under the terms of the plea offer would have been less severe than the conviction and sentence ultimately imposed … . County Court did not afford defendant the opportunity to make this showing here. Rather, it repeatedly misinformed defendant that it could not direct the People to reoffer the prior plea offer and that defendant could either take a new plea offer or go to trial. It is under these circumstances that defendant accepted the later plea offer and entered the underlying guilty plea. Therefore, we reverse the judgment of conviction and remit the matter for substitution of defense counsel and further proceedings. People v McGee, 2018 NY Slip Op 08203, Third Dept 11-29-18

CRIMINAL LAW (DEFENSE COUNSEL APOLOGIZED TO COUNTY COURT AND INDICATED DEFENSE COUNSEL’S BEHAVIOR MAY HAVE CAUSED THE PEOPLE TO HAVE WITHDRAWN A MORE FAVORABLE PLEA OFFER, COUNTY COURT SHOULD HAVE ASSIGNED SUBSTITUTE COUNSEL AND SHOULD HAVE CONDUCTED AN INQUIRY TO DETERMINE WHETHER THE PEOPLE SHOULD BE COMPELLED TO REOFFER THE PRIOR PLEA DEAL (THIRD DEPT))/PLEA OFFERS (CRIMINAL LAW, DEFENSE COUNSEL APOLOGIZED TO COUNTY COURT AND INDICATED DEFENSE COUNSEL’S BEHAVIOR MAY HAVE CAUSED THE PEOPLE TO HAVE WITHDRAWN A MORE FAVORABLE PLEA OFFER, COUNTY COURT SHOULD HAVE ASSIGNED SUBSTITUTE COUNSEL AND SHOULD HAVE CONDUCTED AN INQUIRY TO DETERMINE WHETHER THE PEOPLE SHOULD BE COMPELLED TO REOFFER THE PRIOR PLEA DEAL (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL APOLOGIZED TO COUNTY COURT AND INDICATED DEFENSE COUNSEL’S BEHAVIOR MAY HAVE CAUSED THE PEOPLE TO HAVE WITHDRAWN A MORE FAVORABLE PLEA OFFER, COUNTY COURT SHOULD HAVE ASSIGNED SUBSTITUTE COUNSEL AND SHOULD HAVE CONDUCTED AN INQUIRY TO DETERMINE WHETHER THE PEOPLE SHOULD BE COMPELLED TO REOFFER THE PRIOR PLEA DEAL (THIRD DEPT))

NEW JERSEY FORGED INSTRUMENT CONVICTION WAS NOT THE EQUIVALENT OF A NEW YORK FELONY AND SHOULD NOT HAVE BEEN THE BASIS OF SECOND FELONY OFFENDER STATUS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, ordering the resentencing of defendant, determined the defendant’s prior New Jersey forged instrument conviction was not the equivalent of a New York felony and therefore could not be the basis of second felony offender status:

The first mens rea element of both New York and New Jersey’s crime of uttering a forged instrument are the same: that the defendant had knowledge that the subject instrument was forged. However, the second mens rea element of the New Jersey crime of uttering a forged instrument is broader than the second mens rea element of the New York crime of uttering a forged instrument. Because the New Jersey statute uses the disjunctive “or,” the second mens rea element of the NJ crime of uttering a forged instrument can be satisfied in two different ways: that one who utters a forged instrument must act either with the intent to defraud (purpose to defraud or injure anyone) or with the knowledge that one is facilitating a fraud. By contrast, the second mens rea element of the New York crime of uttering a forged instrument can be satisfied only one way: that the person who utters a forged instrument acted with the “intent to defraud.” Since the New Jersey statute punishes a broader range of mental states than its New York counterpart, it fails New York’s strict equivalency test … . People v Allison, 2018 NY Slip Op 08194, First Dept 11-29-18

CRIMINAL LAW (NEW JERSEY FORGED INSTRUMENT CONVICTION WAS NOT THE EQUIVALENT OF A NEW YORK FELONY AND SHOULD NOT HAVE BEEN THE BASIS OF SECOND FELONY OFFENDER STATUS (FIRST DEPT))/SENTENCING (NEW JERSEY FORGED INSTRUMENT CONVICTION WAS NOT THE EQUIVALENT OF A NEW YORK FELONY AND SHOULD NOT HAVE BEEN THE BASIS OF SECOND FELONY OFFENDER STATUS (FIRST DEPT))/SECOND FELONY OFFENDER  (NEW JERSEY FORGED INSTRUMENT CONVICTION WAS NOT THE EQUIVALENT OF A NEW YORK FELONY AND SHOULD NOT HAVE BEEN THE BASIS OF SECOND FELONY OFFENDER STATUS (FIRST DEPT))

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