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EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined (1) defendant should have been allowed to present expert evidence of the cross-race effect on the ability of a witness to identify a defendant, and (2) the request to instruct the jury on the cross-race effect should have been granted. The First Department further held that the new (2017) cross-racial identification rule should be applied cases like this one, where the rule was announced while the direct appeal was pending:

The court should have permitted defendant to introduce expert testimony to the effect that witnesses are less likely to accurately identify persons of other racial groups than persons of their own race … . The case turned on the accuracy of the victim’s cross-racial identification of defendant, and there was no corroborating evidence connecting defendant to the crime. Furthermore, the circumstances surrounding the identification did not render it so reliable as to justify precluding expert testimony. The expert testimony produced during the Frye hearing sufficiently established that the cross-race effect has been generally accepted in the relevant scientific community. The People do not dispute that this phenomenon applies to identifications of certain racial groups. Moreover it can be deduced from the expert testimony that the cross-race effect applies to all racial groups.

The court should also have granted defendant’s explicit request for a jury instruction on cross-racial identification. Initially, we reject the People’s argument that defendant failed to preserve this issue.

People v Boone (30 NY3d 521, 535-536 [2017]), which requires that a jury charge on the cross-race effect be given on request, should be applied retroactively to cases pending on direct appeal. Boone plainly announces a new rule, and that rule is plainly based on state rather than federal law. Accordingly, its application to cases pending on appeal is not automatic, but depends on a balancing of the three factors set forth in the Mitchell-Pepper test … .

As to the first factor (the purpose of the rule), “standards that go to the heart of a reliable determination of guilt or innocence will be applied retroactively, but decisions which are only collateral to or relatively far removed from the fact-finding process at trial apply prospectively only” … . Here, cross-racial identification instructions go to the fact-finding process, and are essential to a reliable determination of guilt or innocence… . Thus, the first factor favors retroactive application.

As to the second factor (extent of reliance on the old rule), the People cite a number of cases showing that courts have relied on the pre-Boone rule in declining to give a charge on cross-racial identification, in the exercise of discretion. This favors prospective application of the rule, but we do not find that it outweighs the other factors.

As to the third factor (effect on the administration of justice of retroactive application), retroactive application of Boone would not significantly affect the administration of justice. A limited number of cases turn on the accuracy of single-witness, cross-racial identifications, and the particular evidence could render a failure to give a cross-racial identification charge harmless. Moreover, the rule in Boone is expressly limited to cases where the charge has been requested … , and the fact that Boone had not yet been decided at the time of a particular trial would not provide an exemption from the requirement of a timely request … . Thus, contrary to the People’s contention, it is unlikely that retroactive application of Boone would result in wholesale reversals and burden trial courts with unnecessary retrials … . People v Crovador, 2018 NY Slip Op 07273, First Dept 10-30-18

CRIMINAL LAW (EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, IDENTIFICATION, EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT))/EXPERT EVIDENCE (CRIMINAL LAW, IDENTIFICATION, EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT))/IDENTIFICATION (CRIMINAL LAW, EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT))/CROSS-RACIAL IDENTIFICATION (CRIMINAL LAW, EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT))/APPEALS (CRIMINAL LAW, RETROACTIVE APPLICATION OF NEW RULING, (EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT))/RETROACTIVE APPLICATION (CRIMINAL LAW, APPEALS, EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT))

FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the for cause challenge to a juror should have been granted:

The court improvidently exercised its discretion in denying defendant’s challenge for cause to a prospective juror who repeatedly expressed a predisposition to credit police testimony, and a belief that innocent defendants would testify on their own behalf, since the totality of his responses established that he would be unable to put aside his inclinations and be fair and impartial … . At no point did the panelist give an unequivocal assurance that he would put aside his beliefs and concerns and render an impartial verdict … . People v Brith, 2018 NY Slip Op 07250, First Dept 10-30-18

CRIMINAL LAW (FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (FIRST DEPT))/JURORS (CRIMINAL LAW, (FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (FIRST DEPT))/FOR CAUSE CHALLENGE (CRIMINAL LAW, (FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (FIRST DEPT))

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PETITIONER ENTITLED TO A FRYE HEARING TO DETERMINE THE EFFICACY OF AN ‘OTHER SPECIFIED PARAPHILIC DISORDER’ (OSPD) DIAGNOSIS IN THIS DANGEROUS SEX OFFENDER CIVIL CONFINEMENT HEARING (THIRD DEPT).

The Third Department determined petitioner sex offender was entitled to a Frye hearing to determine the efficacy of an “other specified paraphilic disorder” (OSPD) diagnosis:

… OSPD (nonconsent) is the primary diagnosis upon which respondent relied to demonstrate that petitioner suffered from a mental abnormality under Mental Hygiene Law article 10. Citing the lack of specific diagnostic criteria, petitioner contends that this diagnosis is “junk science” that has not gained general acceptance in the scientific community and, therefore, cannot support a finding of mental abnormality. In support of his application for a Frye hearing, petitioner submitted, among other things, Singer’s affidavit, scientific literature in the form of professional articles discussing the controversial nature of PNOS (nonconsent) — the predecessor diagnosis of OSPD (nonconsent) — and questioning its general acceptance in the relevant scientific community, as well as various trial court decisions that, following Frye hearings, have concluded that OSPD (nonconsent) is not a generally accepted diagnosis within the relevant psychiatric and psychological communities. In opposition, respondent tendered an attorney’s affidavit and three trial court decisions — two of which concluded that no Frye hearing was necessary — but no scientific literature or professional affidavits. Although we recognize that OSPD is a defined and recognized diagnosis in the Fifth Edition of the American Psychological Association’s Diagnostic and Statistical Manual of Mental Disorders (hereinafter DSM) and that the Court of Appeals has recognized that PNOS — OSPD’s predecessor diagnosis — is sufficient to support a finding of mental abnormality (see State of New York v Shannon S., 20 NY3d 99, 107 [2012], cert denied 568 US 1216 [2013]), we note that Shannon S. did not determine the issue presently before us, i.e., whether the OSPD (nonconsent) diagnosis has received general acceptance in the psychiatric and psychological communities … . * * *

… [G]iven the controversial nature of the OSPD (nonconsent) diagnosis, on the record before us, we conclude that Supreme Court’s denial of petitioner’s application for a Frye hearing was improper. Accordingly, we remit this matter to Supreme Court to conduct a Frye hearing, addressing the question of whether the diagnosis of OSPD (nonconsent) has achieved general acceptance in the psychiatric and psychological communities … . Matter of Miguel II. v State of New York, 2018 NY Slip Op 07210, Third Dept 10-25-18

MENTAL HYGIENE LAW (SEX OFFENDERS, CIVIL CONFINEMENT, PETITIONER ENTITLED TO A FRYE HEARING TO DETERMINE THE EFFICACY OF AN ‘OTHER SPECIFIED PARAPHILIC DISORDER’ (OSPD) DIAGNOSIS IN THIS DANGEROUS SEX OFFENDER CIVIL CONFINEMENT HEARING (THIRD DEPT))/CRIMINAL LAW (MENTAL HYGIENE LAW, SEX OFFENDERS, PETITIONER ENTITLED TO A FRYE HEARING TO DETERMINE THE EFFICACY OF AN ‘OTHER SPECIFIED PARAPHILIC DISORDER’ (OSPD) DIAGNOSIS IN THIS DANGEROUS SEX OFFENDER CIVIL CONFINEMENT HEARING (THIRD DEPT))/EVIDENCE (MENTAL HYGIENE LAW, SEX OFFENDERS, PETITIONER ENTITLED TO A FRYE HEARING TO DETERMINE THE EFFICACY OF AN ‘OTHER SPECIFIED PARAPHILIC DISORDER’ (OSPD) DIAGNOSIS IN THIS DANGEROUS SEX OFFENDER CIVIL CONFINEMENT HEARING (THIRD DEPT))/FRYE HEARING (MENTAL HYGIENE LAW, SEX OFFENDERS, PETITIONER ENTITLED TO A FRYE HEARING TO DETERMINE THE EFFICACY OF AN ‘OTHER SPECIFIED PARAPHILIC DISORDER’ (OSPD) DIAGNOSIS IN THIS DANGEROUS SEX OFFENDER CIVIL CONFINEMENT HEARING (THIRD DEPT))

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WARRANTLESS ENTRY INTO DEFENDANT’S APARTMENT WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction which stemmed from a violation of an order of protection, determined that the emergency exception to the warrant requirement did not apply and her motion to suppress should have been granted. The order of protection directed defendant to stay away from Thomas Collins. The police officer, Carmichael, after entering defendant’s apartment without permission, found Collins hiding there:

We conclude that Carmichael’s testimony established that there was not an objectively reasonable basis for him to believe that there was an ongoing emergency in defendant’s apartment that required immediate assistance to protect life or property. Carmichael was aware that defendant was no longer incarcerated. There was no evidence that defendant’s apartment had been forcibly entered, nor was there any other indication of an ongoing crime or emergency. The low, muffled sound that he heard and the faint light that was seen through the window were consistent with an occupant watching television, a reasonable activity at that hour of night. Moreover, Carmichael’s testimony further established that the police may have been motivated to search defendant’s apartment by the possibility of locating Collins there and arresting him. Carmichael confirmed that he was aware that there was an outstanding warrant for Collins’ arrest. The police had been advised that Collins had been seen in the vicinity of defendant’s apartment during the evening in question, and they considered the possibility that he was at her apartment in violation of the order of protection. After Carmichael handcuffed defendant, he reported by radio to the other officers on the scene that he had detained the “female subject,” and, when he located Collins, he stated that he had detained “that other subject.”

Further, even had Carmichael’s initial entry been lawful, his subsequent search of defendant’s apartment was not. A protective sweep is justified only when the police “have articulable facts upon which to believe that there is a person present who may pose a danger to those on the scene” … . Upon entry, Carmichael found that the apartment was occupied by defendant — known by him to be the tenant entitled to occupy the apartment — who told him that she was watching television, denied that anyone else was present and made no request for assistance. Thus, the facts known to Carmichael did not reasonably support the belief that there was any danger to himself or to defendant. People v Sears, 2018 NY Slip Op 07197, Third Dept 10-25-18

CRIMINAL LAW (WARRANTLESS ENTRY INTO DEFENDANT’S APARTMENT WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, WARRANTLESS ENTRY INTO DEFENDANT’S APARTMENT WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT))/EMERGENCY EXCEPTION TO WARRANT REQUIREMENT (WARRANTLESS ENTRY INTO DEFENDANT’S APARTMENT WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT))/SUPPRESS, MOTION TO, (WARRANTLESS ENTRY INTO DEFENDANT’S APARTMENT WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT))

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PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT’S CONVICTION (THIRD DEPT).

The Third Department, reversing defendant’s assault and criminal possession of a weapon convictions, determined that the People did not disprove the justification defense in this nonjury trial:

At sentencing, County Court stated that it rejected defendant’s justification defense because it found that defense to be inconsistent with the multiple wounds on the victim’s face, neck and body. However, “independently assess[ing] all of the proof” and considering the correctness of the court’s factual determinations in the role of a second factfinder, as we must, we do not agree that these injuries are inconsistent with defendant’s assertion that he had to swing the knife repeatedly to defend himself, as the victim continued to attack and punch him … . More significantly, the severity of the victim’s injuries does not provide the missing proof that defendant could have retreated with complete safety before he used deadly physical force or even during the knife fight, when he and the victim both testified that the victim continued to throw punches. It was the People’s burden to prove “to the same degree as any element of the crime charged” that defendant’s actions were not justified … . Exercising our factual review power and viewing the evidence in a neutral light, we find that the People did not do so … . People v Hernandez, 2018 NY Slip Op 07196, Second Dept 10-24-18

CRIMINAL LAW (PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT’S CONVICTION (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, JUSTIFICATION, PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT’S CONVICTION (THIRD DEPT))/JUSTIFICATION (CRIMINAL LAW, EOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT’S CONVICTION (THIRD DEPT))/APPEALS (CRIMINAL LAW, NONJURY TRIAL, PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT’S CONVICTION (THIRD DEPT))

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DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT).

The Second Department determined there defendant was not given the opportunity to be heard on whether he should be designated a sexual predator and deleted the designation:

… [T]he Supreme Court erred in, sua sponte, designating the defendant a sexual predator. Neither the Board of Examiners of Sex Offenders nor the People had recommended such a designation, and the defendant was never afforded an opportunity to be heard on the issue of whether he should be so designated (see Correction Law § 168-n[3]…). Accordingly, we modify the order so as to delete the provision thereof designating the defendant a sexual predator. People v Medina, 2018 NY Slip Op 07162, Second Dept 10-24-18

CRIMINAL LAW (DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT))/SEXUAL PREDATOR (DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT))

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IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction for aggravated unlicensed operation of a motor vehicle, determined that the testimony of a supervisor from the NYS Department of Motor Vehicles (DMV), alleging that notice of the revocation of defendant’s license was mailed to defendant, violated defendant’s right to confront the witnesses against him because the testimony was not based upon first hand knowledge:

To establish that the defendant operated a motor vehicle while knowing that his license was suspended or revoked, the People presented the testimony of a supervisor of the New York State Department of Motor Vehicles (hereinafter the DMV), who testified about the DMV’s process of mailing notices of revocation and/or suspension. The DMV supervisor testified that an order of suspension was mailed to the defendant in 1999, and she read into the record an affidavit, sworn to in 2012, which detailed the procedures related to mailing these notices and also stated, “upon information and belief,” that the notice was in fact mailed to the defendant in 1999. However, the DMV supervisor herself admittedly had no personal knowledge of the mailing to the defendant, and the People did not produce the original 1999 affidavit of mailing.

The Supreme Court should not have permitted this testimony, as it violated the defendant’s right of confrontation (see CPLR 4518[a]; CPL 60.10;… ) The defendant was never given the opportunity to cross-examine a DMV employee who was directly involved in sending out suspension notices and who had personal knowledge of defendant’s driving record. The DMV supervisor’s testimony was improperly allowed to establish an essential element of the crime. The court, in permitting this testimony, failed to ensure that the defendant’s Sixth Amendment right of confrontation was protected … . People v Stokeling, 2018 NY Slip Op 07158, Second Dept 10-24-18

CRIMINAL LAW (IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT)/HEARSAY (CRIMINAL LAW, IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))/HEARSAY (CRIMINAL LAW, IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))/BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (CRIMINAL LAW, IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))/VEHICLE AND TRAFFIC LAW  (IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))

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DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s convictions for two separate robberies which were tried together, determined that one of the lineup identification procedures violated defendant’s right to counsel. The detective who conducted the lineup was aware defendant had an attorney but did not notify the attorney of the impending lineup:

The detective who conducted the lineup violated the defendant’s right to counsel by failing to notify counsel of the lineup and afford counsel a reasonable opportunity to attend. As a general rule, a defendant does not have the right to counsel at a preaccusatory, investigatory lineup … . There are two exceptions. The first is when a defendant is actually represented by an attorney in the matter under investigation. That occurs when the defendant is, in fact, represented in the matter, and the police know, or can be charged with knowledge of that representation … . The second is when a defendant who is already in custody and represented by an attorney in an unrelated case invokes the right by requesting his or her attorney. In either case, “[o]nce the right to counsel has been triggered, the police may not proceed with the lineup without at least apprising the defendant’s lawyer of the situation and affording the lawyer a reasonable opportunity to appear. A specific request that the lineup not proceed until counsel is so notified need not be made” … .

… [T]he paramount consideration is whether there is a reasonable possibility that the jury’s decision to convict on the tainted counts influenced its verdict of guilt on the remaining counts in a meaningful way … . Here, we cannot conclude from the evidence presented that there was no such reasonable possibility. People v Johnson, 2018 NY Slip Op 07147, Second Dept 10-24-18

CRIMINAL LAW (LINEUPS, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, LINEUPS, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, LINEUPS, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))/RIGHT TO COUNSEL (LINEUPS, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))/LINEUPS (RIGHT TO COUNSEL, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))

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DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT).

The First Department determined that defendant should be given the opportunity to move to vacate his guilty plea on ineffective assistance grounds. Although deportation was mandatory, defendant was told only that he may be deported:

Defendant was deprived of effective assistance of counsel when his counsel failed to advise him that his guilty plea to an aggravated felony would result in mandatory deportation, and instead merely advised him that his plea would have “immigration consequences,” would “impact his ability to stay in the country” and “will probably very well end up with [defendant] being deported from this country” … .

Defendant should be afforded the opportunity to move to vacate his plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea … , and we hold this appeal in abeyance for that purpose. People v Johnson, 2018 NY Slip Op 07072, First Dept 10-23-18

CRIMINAL LAW (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/INEFFECTIVE ASSISTANCE (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/IMMIGRATION (CRIMINAL LAW, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/GUILTY PLEA, MOTION TO VACATE (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/DEPORTATION (CRIMINAL LAW, ATTORNEYS, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))

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DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT).

The First Department determined defendant should be given the opportunity to move to vacate his guilty plea on ineffective assistance grounds because he was not adequately warned of the deportation consequences:

Defendant was deprived of effective assistance when his counsel failed to advise him that his guilty plea to an aggravated felony would result in mandatory deportation, and instead merely advised him that deportation was a possibility … .

Defendant should be afforded the opportunity to move to vacate his plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea (see id.), and we hold the appeal in abeyance for that purpose. People v Rodriguez, 2018 NY Slip Op 07061, First Dept 10-23-18

CRIMINAL LAW (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/INEFFECTIVE ASSISTANCE (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/IMMIGRATION (CRIMINAL LAW, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/GUILTY PLEA, MOTION TO VACATE (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/DEPORTATION (CRIMINAL LAW, ATTORNEYS, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))

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