Criminal Law – Page 229 – New York Appellate Digest

Appeals, Attorneys, Constitutional Law, Criminal Law

MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a two judge dissent, determined that missing the deadline for filing an application for leave to appeal to the Court of Appeals does not deprive defendant of his or her constitutional right to effective assistance of counsel or due process. Therefore the defendant is not entitled to a writ of error coram nobis or an exception to the time limits in Criminal Procedure Law 460.30:

In People v Andrews (23 NY3d 605, 616 [2014]), we held that counsel’s failure to file a timely criminal leave application (CLA) to this Court within the thirty-day statutory time frame provided by CPL 460.10 (5) (a), or move pursuant to CPL 460.30 within the one-year grace period for an extension to cure the error, does not deprive a defendant of a constitutional right to the effective assistance of counsel or due process under the Sixth and Fourteenth Amendments of the United States Constitution. In the absence of a constitutional violation, a defendant cannot resort to coram nobis to abrogate the one-year time limitation on the remedy provided in CPL 460.30 for the improper conduct of his or her attorney in failing to file a timely CLA. We left open the question of whether a more protective rule should be recognized under the New York State Constitution (id. at 616). Today, we hold the same rule applies under article I, section 6 of the New York State Constitution. Thus, defendant is not entitled to a writ of error coram nobis to bypass the limitation set by the legislature in CPL 460.30 in which to file a CLA seeking leave to appeal to this Court. * * *

Given our history paralleling our jurisprudence with that of the federal courts in affording defendants meaningful review on appeals, and without any reason to deviate from that tradition today, we hold that there is no state constitutional right to legal representation on an application for leave to appeal to this Court. People v Grimes, 2018 NY Slip Op 07038, CtApp 10-23-18

CRIMINAL LAW (MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/APPEALS (CRIMINAL LAW, MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/ATTORNEYS (CRIMINAL LAW, APPEALS, MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/RIGHT TO COUNSEL (APPEALS, MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/CONSTITUTIONAL LAW (CRIMINAL LAW, APPEALS, MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/CORAM NOBIS (MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/INEFFECTIVE ASSISTANCE (APPEALS, MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))

October 23, 2018

Appeals, Attorneys, Criminal Law, Mental Hygiene Law

THE DENIAL OF DEFENDANT’S PETITION FOR A DE NOVO JURY TRIAL TO DETERMINE WHETHER HE IS MENTALLY ILL IS APPEALABLE AS OF RIGHT AND THE PETITION SHOULD HAVE BEEN GRANTED, AN EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED AND DEFENSE COUNSEL’S STATEMENTS AND THE DEFENSE EXPERT’S TESTIMONY AT THE HEARING TO THE EFFECT DEFENDANT WAS MENTALLY ILL DID NOT CONSTITUTE A WAIVER OF THE DEFENDANT’S RIGHT TO A DE NOVO TRIAL (FIRST DEPT).

he First Department, reversing Supreme Court, determined defendant’s petition requesting a de novo jury trial on whether defendant is mentally ill should have been granted. The First Department held that the exception to the mootness doctrine applied to allow appeal, the denial of the petition was appealable as of right, and the remarks of defense counsel and the testimony of the defense expert at the hearing to the effect defendant is mentally ill did not waive defendant’s right to a trial de novo:

This case satisfies the exception to the mootness doctrine because there is “(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues” … . Commitment and retention proceedings generally involve orders of short duration, which typically evade review … . Moreover, the issue before us is substantial, as it requires us to decide whether statements by defendant’s counsel and his expert could operate to deprive a defendant of his statutory right to demand a jury trial de novo on the “basic liberty issue” of whether he can be confined … . …

… [T]there can be no serious dispute that the order of the motion court, which denied defendant the opportunity to present his case before a jury, as provided for under CPL 330.20(16), affected a substantial right. * * * Since the motion court’s order affected a substantial right of defendant, we hold that his appeal is properly before us as one taken as of right under CPLR 5701(a)(2)(v). * * *

Here, defendant timely expressed his dissatisfaction with a recommitment order that was based on a threshold finding that he had a mental illness. Once defendant met those core requirements, he was entitled to a de novo trial at which a jury would decide whether he was mentally ill based on the evidence then existing. Matter of New York State Off. of Mental Health v Marco G., 2018 NY Slip Op 06998, First Dept 10-18-18

CRIMINAL LAW (CPL 330.20, MENTAL ILLNESS, THE DENIAL OF DEFENDANT’S PETITION FOR A DE NOVO JURY TRIAL TO DETERMINE WHETHER HE IS MENTALLY ILL IS APPEALABLE AS OF RIGHT AND THE PETITION SHOULD HAVE BEEN GRANTED, AN EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED AND DEFENSE COUNSEL’S STATEMENTS AND THE DEFENSE EXPERT’S TESTIMONY AT THE HEARING TO THE EFFECT DEFENDANT WAS MENTALLY ILL DID NOT CONSTITUTE A WAIVER OF THE DEFENDANT’S RIGHT TO A DE NOVO TRIAL (FIRST DEPT))/APPEALS (CRIMINAL LAW, MENTAL ILLNESS, THE DENIAL OF DEFENDANT’S PETITION FOR A DE NOVO JURY TRIAL TO DETERMINE WHETHER HE IS MENTALLY ILL IS APPEALABLE AS OF RIGHT AND THE PETITION SHOULD HAVE BEEN GRANTED, AN EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED AND DEFENSE COUNSEL’S STATEMENTS AND THE DEFENSE EXPERT’S TESTIMONY AT THE HEARING TO THE EFFECT DEFENDANT WAS MENTALLY ILL DID NOT CONSTITUTE A WAIVER OF THE DEFENDANT’S RIGHT TO A DE NOVO TRIAL (FIRST DEPT))/MENTAL HYGIENE LAW (CRIMINAL LAW, MENTAL ILLNESS, THE DENIAL OF DEFENDANT’S PETITION FOR A DE NOVO JURY TRIAL TO DETERMINE WHETHER HE IS MENTALLY ILL IS APPEALABLE AS OF RIGHT AND THE PETITION SHOULD HAVE BEEN GRANTED, AN EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED AND DEFENSE COUNSEL’S STATEMENTS AND THE DEFENSE EXPERT’S TESTIMONY AT THE HEARING TO THE EFFECT DEFENDANT WAS MENTALLY ILL DID NOT CONSTITUTE A WAIVER OF THE DEFENDANT’S RIGHT TO A DE NOVO TRIAL (FIRST DEPT))/MOOTNESS DOCTRINE (APPEALS, CRIMINAL LAW, CPL 330.20, MENTAL ILLNESS, THE DENIAL OF DEFENDANT’S PETITION FOR A DE NOVO JURY TRIAL TO DETERMINE WHETHER HE IS MENTALLY ILL IS APPEALABLE AS OF RIGHT AND THE PETITION SHOULD HAVE BEEN GRANTED, AN EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED AND DEFENSE COUNSEL’S STATEMENTS AND THE DEFENSE EXPERT’S TESTIMONY AT THE HEARING TO THE EFFECT DEFENDANT WAS MENTALLY ILL DID NOT CONSTITUTE A WAIVER OF THE DEFENDANT’S RIGHT TO A DE NOVO TRIAL (FIRST DEPT))

October 18, 2018

Criminal Law

NO EVIDENCE ROBBERY VICTIM SAW A FIREARM, ROBBERY FIRST CONVICTION VACATED (FIRST DEPT).

The First Department, reversing the robbery first conviction, over a partial dissent, determined that there was no evidence the victim saw a firearm:

… [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, 2018 NY Slip Op 06967, First Dept 10-18-18

CRIMINAL LAW (NO EVIDENCE ROBBERY VICTIM SAW A FIREARM, ROBBERY FIRST CONVICTION VACATED (FIRST DEPT))/ROBBERY (NO EVIDENCE ROBBERY VICTIM SAW A FIREARM, ROBBERY FIRST CONVICTION VACATED (FIRST DEPT))

October 18, 2018

Criminal Law, Sex Offender Registration Act (SORA)

PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined the People’s request for an upward departure in this SORA risk assessment proceeding should not have been granted:

An upward departure is permitted only if the court concludes, upon clear and convincing evidence, “that there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines” … . In determining whether an upward departure is permissible and, if permissible, appropriate, a SORA court must engage in a three-step inquiry. First, the court must determine whether the People have articulated, as a matter of law, a legitimate aggravating factor. Next, the court must determine whether the People have established, by clear and convincing evidence, the facts supporting the presence of that factor in the case before it. Upon the People’s satisfaction of these two requirements, an upward departure becomes discretionary. If, upon examining all of the circumstances relevant to the offender’s risk of reoffense and danger to the community, the court concludes that the presumptive risk level would result in an underassessment of the risk or danger of reoffense, it may upwardly depart … . If, however, the People do not satisfy the first two requirements, the court does not have the discretion to depart from the presumptive risk level… .

In this case, the People failed at the hearing to identify “an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines” … . Specifically, the defendant’s abuse of trust within a family relationship is already adequately accounted for by the Guidelines … . People v Mota, 2018 NY Slip Op 06950, Second Dept 10-18-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA) PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

October 17, 2018

Criminal Law, Family Law, Immigration Law, Social Services Law

ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Rivera, over an extensive dissent, determined that an adjudicated juvenile delinquent was not eligible for special immigrant juvenile status (SIJS):

On the instant appeal, this Court is presented with the issue of whether the Family Court properly denied the renewed motion of Keanu S. (hereinafter the child) for the issuance of an order declaring that he is dependent on the Family Court and making specific findings so as to enable him to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J). Specifically, the Family Court rejected the child’s contention that he was dependent upon a juvenile court, within the meaning of 8 USC § 1101(a)(27)(J)(i), by virtue of his placement in the custody of the Commissioner of Social Services of the City of New York following his adjudication as a juvenile delinquent. … [W]e agree with the Family Court’s determination and conclude that such a placement does not satisfy the requirement of dependency under the statute. * * *

We hold that the child herein is not an intended beneficiary of the SIJS provisions. He was not placed in the custody of the Commissioner of Social Services due to his status as an abused, neglected, or abandoned child. Instead, he was placed in the custody of the Commissioner of Social Services after committing acts which, if committed by an adult, would have constituted serious crimes. His violent acts and misconduct have resulted in painful and terrible consequences to his victims. In fact, even while under probation, his encounters with the law persisted. In effect, the child attempts to utilize his wrongdoings and the resultant juvenile delinquency adjudication as a conduit or a vehicle to meet the dependency requirement for SIJS. Such a determination is in conflict with the primary intent of Congress in enacting the SIJS scheme, namely, to protect abused, neglected, and abandoned immigrant children. We cannot fathom that Congress envisioned, intended, or proposed that a child could satisfy this requirement by committing acts which, if committed by adults, would constitute crimes, so as to warrant a court’s involvement or the legal commitment to an individual appointed by a state or juvenile court. Matter of Keanu S., 2018 NY Slip Op 06918, Second Dept 10-17-18

FAMILY LAW (ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/CRIMINAL LAW (FAMILY LAW, ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/JUVENILE DELINQUENT (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))

October 17, 2018

Attorneys, Criminal Law

DEFENDANT’S REQUEST TO REPRESENT HIMSELF, MADE AFTER ELEVEN JURORS HAD BEEN SELECTED, WAS PROPERLY REJECTED AS UNTIMELY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a three-judge dissent, determined defendant's request to represent himself after 11 jurors had been selected was properly rejected as untimely:

… [P]rior to opening statements, but after 11 jurors were selected and sworn, defendant sought to invoke his right to proceed pro se. As set forth in the seminal case of People v McIntyre, there is a three-prong analysis to determine when a defendant in a criminal case may invoke this right: “(1) the request [must be] unequivocal and timely asserted, (2) there [must have] been a knowing and intelligent waiver of the right to counsel, and (3) the defendant [must] not engage[] in conduct which would prevent the fair and orderly exposition of the issues” (36 NY2d 10, 17 [1974]). This appeal relates to the first prong — specifically, we must consider whether defendant's request was untimely as a matter of law because it was made after commencement of the trial. We hold that, in conformity with the statutory scheme set forth in the Criminal Procedure Law, the jury trial has commenced when jury selection begins. Accordingly, the trial court's determination that defendant's request to proceed pro se, made near the conclusion of jury selection, was untimely was not error. * * *

… [A]a request to represent oneself in a criminal trial is timely where the application to proceed pro se is made before the trial commences. The Criminal Procedure Law defines the commencement of trial as the beginning of jury selection. Where 11 jurors had been selected and sworn as trial jurors before defendant's request to proceed pro se was made, defendant's request was untimely. As a result, there was no legal error in the trial court's determination that the request to represent himself was untimely and in its denial of such request without further inquiry. People v Crespo, 2018 NY Slip Op 06849, CtApp 10-16-18

CRIMINAL LAW (DEFENDANT'S REQUEST TO REPRESENT HIMSELF, MADE AFTER ELEVEN JURORS HAD BEEN SELECTED, WAS PROPERLY REJECTED AS UNTIMELY (CT APP))/ATTORNEYS (CRIMINAL LAW, DEFENDANT'S REQUEST TO REPRESENT HIMSELF, MADE AFTER ELEVEN JURORS HAD BEEN SELECTED, WAS PROPERLY REJECTED AS UNTIMELY (CT APP))/PRO SE (CRIMINAL LAW, DEFENDANT'S REQUEST TO REPRESENT HIMSELF, MADE AFTER ELEVEN JURORS HAD BEEN SELECTED, WAS PROPERLY REJECTED AS UNTIMELY (CT APP))

October 16, 2018

Criminal Law, Employment Law, Municipal Law, Unemployment Insurance

CLAIMANT’S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined the fact that the claimant was terminated from her employment as a city tax assessor because of two drunk-driving-related crimes did not preclude her from eligibility for unemployment insurance, The drunk driving incidents had nothing to do with her job and there was evidence she could have continued doing her job even though her license had been suspended for 90 days:

The disciplinary determination was founded, in part, upon claimant's two convictions for driving while under the influence of alcohol and her resulting license suspension. Whether this amounted to disqualifying misconduct posed a factual question for the Board, “and not every mistake, exercise of poor judgment or discharge for cause will rise to the level of misconduct” … . …

The drunk driving incidents did not occur while claimant was working. Notably, possession of a valid driver's license was not listed among the qualifications necessary to hold the position of Sole Assessor and claimant testified that she was not advised that this was a requirement … . Claimant was not incarcerated as a result of her convictions and she testified that she was ready and able to fulfill her job duties notwithstanding the suspension of her driver's license … . Moreover, while claimant acknowledged that she occasionally did site visits, she testified that she could perform her duties while her license was temporarily suspended given that much of the data needed to compute the assessments had already been compiled and she could obtain a lot of the information online. Matter of Stack (City of Glens Falls–Commissioner of Labor), 2018 NY Slip Op 06840, Third Dept 10-11-18

UNEMPLOYMENT INSURANCE (CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/EMPLOYMENT LAW (CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/MUNICIPAL LAW (CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/CRIMINAL LAW (UNEMPLOYMENT INSURANCE, CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))

October 11, 2018

Criminal Law

ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH PATRONIZING A PROSTITUTE WAS NOT JURISDICTIONALLY DEFECTIVE BECAUSE A CLINICAL PHRASE WAS USED TO DESCRIBE SEXUAL ACTIVITY (CT APP).

The Court of Appeals, reversing the appellate term, determined that the accusatory instrument charging defendant with patronizing a prostitute was not jurisdictionally defective:

Giving the allegations “a fair and not overly restrictive or technical reading” … , and “drawing reasonable inferences from all the facts set forth in the accusatory instrument” … , the accusatory instrument contains sufficient facts to demonstrate “reasonable cause” to believe (CPL 100.40[4][b]) that defendant was guilty of patronizing a prostitute in the third degree (see Penal Law § 130.00[10]). The factual allegations that defendant requested “manual stimulation” from a woman on a street corner, for a specific sum of money, at 2:25 a.m., supplied “defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy”… . Defendant’s argument that “manual stimulation” could be indicative of nonsexual conduct ignores the inferences of sexual activity to be drawn from the factual context in which the statement was alleged to have been made—a late night solicitation of a physical personal service from an individual on a public street, in exchange for a sum of money. Any assertion that defendant was referring to a nonsexual activity “was a matter to be raised as an evidentiary defense not by insistence that this information was jurisdictionally defective” … . The fact that the instrument used a clinical phrase for the sexual activity alleged does not render the instrument jurisdictionally defective. People v Drelich, 2018 NY Slip Op 06785, CtApp 10-11-18

CRIMINAL LAW (ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH PATRONIZING A PROSTITUTE WAS NOT JURISDICTIONALLY DEFECTIVE BECAUSE A CLINICAL PHRASE WAS USED TO DESCRIBE SEXUAL ACTIVITY (CT APP))/PATRONIZING A PROSTITUTE (CRIMINAL LAW, ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH PATRONIZING A PROSTITUTE WAS NOT JURISDICTIONALLY DEFECTIVE BECAUSE A CLINICAL PHRASE WAS USED TO DESCRIBE SEXUAL ACTIVITY (CT APP))/ACCUSATORY INSTRUMENT (CRIMINAL LAW, ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH PATRONIZING A PROSTITUTE WAS NOT JURISDICTIONALLY DEFECTIVE BECAUSE A CLINICAL PHRASE WAS USED TO DESCRIBE SEXUAL ACTIVITY (CT APP))

October 11, 2018

Criminal Law, Family Law

THE CRIMINAL LAW DEFINITION OF SERIOUS PHYSICAL INJURY IS NOT THE STANDARD FOR ABUSE IN FAMILY COURT, THE STANDARD IS ‘CREATING A SUBSTANTIAL RISK OF SERIOUS INJURY’ (SECOND DEPT).

The Second Department, reversing Family Court, found that the child, Talia, was abused. Family Court had determined that Talia was not abused because her injuries did not meet the definition of serious physical injury as defined in the Penal Law. The Family Court Act criteria is “creating a substantial risk of serious injury:”

We agree with the Family Court's finding that Talia's injuries were “clearly inflicted and not accidental.” However, we disagree with the court's finding that Talia was not abused based on its determination that she had not sustained a serious physical injury as defined in Penal Law § 10.00(10). Although the definition of “abuse” under Family Court Act § 1012 is similar to the definition of “serious physical injury” under the Penal Law, the definitions are not identical. The Penal Law defines “serious physical injury” as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss of impairment of the function of any bodily organ” (Penal Law § 10.00[10]). However, under the Family Court Act, a “child need not sustain a serious injury for a finding of abuse as long as the evidence demonstrates that the parent sufficiently endangered the child by creating a substantial risk of serious injury” … .

Here, the fracture to Talia's humerus required her arm to be immobilized for more than two weeks, which is sufficient to establish a protracted impairment of health … . In addition, the medical testimony revealed that this injury caused Talia pain and discomfort, and could take months to heal. Furthermore, there was a concern that there could be loss of function and loss of growth potential. Although this was unlikely in Talia's case, since her fracture was not completely displaced, the conduct of the mother, the father, and the maternal grandmother still created a substantial risk that such injury could have occurred … . Matter of Jonah B. (Ferida B.), 2018 NY Slip Op 06735, Second Dept 10-10-18

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October 10, 2018

Appeals, Criminal Law

THE CONTENTION DEFENDANT WAS ILLEGALLY SENTENCED SURVIVES A WAIVER OF APPEAL AND WILL BE HEARD IN THE INTEREST OF JUSTICE, THE PEOPLE DID NOT SHOW THE EQUIVALENCY OF THE CALIFORNIA ROBBERY CONVICTION, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND VIOLENT FELONY OFFENDER (SECOND DEPT).

The Second Department, remitting the matter for resentencing, determined defendant should not have been sentenced as a second violent felony offender because the People did not demonstrate the equivalency of the California robbery statute. The court noted that illegal sentence would survive a waiver of appeal and the issue would be reached in the interest of justice:

Penal Law § 70.04 requires the imposition of enhanced sentences for those found to be predicate violent felons … . “Subdivision (1)(b)(i) of that section provides, in pertinent part, that a prior out-of-state conviction qualifies as a predicate violent felony conviction if it involved all of the essential elements of any [violent] felony for which a sentence to a term of imprisonment in excess of one year . . . was authorized and is authorized in this state'”… .

In this context, the Court of Appeals has “applied a strict equivalency standard that examines the elements of the foreign conviction to determine whether the crime corresponds to a New York [violent] felony, usually without reference to the facts giving rise to that conviction” … . “As a general rule, this inquiry is limited to a comparison of the crimes' elements as they are respectively defined in the foreign and New York penal statutes” … . However, “the strict equivalency test [also] allows a reviewing court to examine . . . any foreign statute or case law that informs the interpretation of a foreign code breached by the defendant” … .

The People have the burden of establishing that the defendant was convicted of an offense in a foreign jurisdiction that is equivalent to a violent felony in New York … . “When a statute-to-statute comparison reveals differences in the elements such that it is possible to violate the foreign statute without engaging in conduct that is a [violent] felony in New York, the foreign statute may not serve as a predicate” … .

Here, the People failed to satisfy their burden of establishing that the defendant was convicted of an offense in a foreign jurisdiction that is equivalent to a violent felony in New York …. The People failed to demonstrate that the California offense of robbery in the first degree … is equivalent to a New York criminal offense designated as a violent felony … . People v Salako, 2018 NY Slip Op 06770, Second Dept 10-10-18

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