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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

 

 

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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