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DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant’s statement during the plea allocution raised a viable affirmative defense which required further inquiry by the court. The error was considered on appeal under a rare exception to the preservation requirement:

Although defendant’s contention survives his valid waiver of the right to appeal … , he failed to preserve that contention for our review inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction on that ground … . This case nonetheless falls within the rare exception to the preservation requirement … . Defendant made a statement during the plea allocution that raised a potentially viable affirmative defense pursuant to Penal Law § 130.10 (1), thereby “giving rise to a duty on the part of the court, before accepting the guilty plea, to ensure that defendant was aware of that defense and was knowingly and voluntarily waiving it” … . We conclude that the court’s inquiry here was insufficient to meet that obligation … . People v Rosario, 2018 NY Slip Op 07564, Fourth Dept 11-9-18

CRIMINAL LAW (DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))/APPEALS (PLEA ALLOCUTION, DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))/PLEA ALLOCUTION (DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))/GUILTY PLEA (DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, THE PAPERS SUFFICIENTLY RAISED THE QUESTION WHETHER DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF THE PLEA AND WHETHER THAT FAILURE AMOUNTED TO INEFFECTIVE ASSISTANCE UNDER THE FEDERAL STANDARD, THE ARGUMENT THAT THE COURT FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES WAS REJECTED BECAUSE THERE WAS A SUFFICIENT RECORD TO HAVE RAISED THAT ARGUMENT ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction by guilty plea should not have been denied without a hearing. Defendant alleged he was incorrectly told by his attorney that he would not be deported as a result of the plea. Defendant’s papers were sufficient to raise a question whether defendant was afforded effective assistance of counsel under the federal standard (which is explained in the decision). The court noted that the claim defendant was not informed of the risk of deportation at sentencing was properly rejected because there was a sufficient record to have raised that argument on appeal:

Under the federal standard for asserting a claim of ineffective assistance of counsel, a defendant “must show that counsel’s representation fell below an objective standard of reasonableness” and “that the deficient performance prejudiced the defense” … . Although Padilla v Kentucky (559 US 356) is inapplicable to this case because the defendant’s conviction became final before Padilla was decided  … , even prior to Padilla, the Court of Appeals had held that “inaccurate advice about a guilty plea’s immigration consequences” fell below an objective standard of reasonableness, so as to satisfy the first prong of the standard set forth in Strickland [466 US 668].

Here, the defendant alleged that his counsel incorrectly advised him that he would not be subject to deportation as a consequence of his plea of guilty to reckless endangerment in the first degree. The defendant affirmed that he was initially offered a plea agreement that included a period of incarceration and carried the risk of deportation and, in consultation with his counsel, the defendant rejected that plea offer because of the deportation risks. It was only after a second plea offer was made, for a length of probation conditioned upon the successful completion of a program, along with the representation that such a plea would not result in the defendant’s deportation, that the defendant chose to plead guilty. …

In addition to demonstrating that defense counsel’s performance was deficient, a defendant making a federal constitutional claim must also show, in order to satisfy the second prong of the Strickland standard, that there was ” a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial'” … .

Here, the defendant’s affidavit raised sufficient questions of fact as to whether it was reasonably probable that he would not have pleaded guilty had he been correctly advised as to the deportation consequences of the plea, given the fact that the defendant had already once rejected a plea offer that was objectively favorable to him, in favor of going to trial, because of the risk of deportation, and based upon his specific affirmation that, had he known the risk of deportation, he would not have pleaded guilty … . People v Malik, 2018 NY Slip Op 07452, Second Dept 11-7-18

CRIMINAL LAW (DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, THE PAPERS SUFFICIENTLY RAISED THE QUESTION WHETHER DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF THE PLEA AND WHETHER THAT FAILURE AMOUNTED TO INEFFECTIVE ASSISTANCE UNDER THE FEDERAL STANDARD, THE ARGUMENT THAT THE COURT FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES WAS REJECTED BECAUSE THERE WAS A SUFFICIENT RECORD TO HAVE RAISED THAT ARGUMENT ON APPEAL (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, THE PAPERS SUFFICIENTLY RAISED THE QUESTION WHETHER DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF THE PLEA AND WHETHER THAT FAILURE AMOUNTED TO INEFFECTIVE ASSISTANCE UNDER THE FEDERAL STANDARD, THE ARGUMENT THAT THE COURT FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES WAS REJECTED BECAUSE THERE WAS A SUFFICIENT RECORD TO HAVE RAISED THAT ARGUMENT ON APPEAL (SECOND DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, THE PAPERS SUFFICIENTLY RAISED THE QUESTION WHETHER DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF THE PLEA AND WHETHER THAT FAILURE AMOUNTED TO INEFFECTIVE ASSISTANCE UNDER THE FEDERAL STANDARD, THE ARGUMENT THAT THE COURT FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES WAS REJECTED BECAUSE THERE WAS A SUFFICIENT RECORD TO HAVE RAISED THAT ARGUMENT ON APPEAL (SECOND DEPT))/IMMIGRATION LAW (CRIMINAL LAW, (DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, THE PAPERS SUFFICIENTLY RAISED THE QUESTION WHETHER DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF THE PLEA AND WHETHER THAT FAILURE AMOUNTED TO INEFFECTIVE ASSISTANCE UNDER THE FEDERAL STANDARD, THE ARGUMENT THAT THE COURT FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES WAS REJECTED BECAUSE THERE WAS A SUFFICIENT RECORD TO HAVE RAISED THAT ARGUMENT ON APPEAL (SECOND DEPT))/DEPORTATION (CRIMINAL LAW, (DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, THE PAPERS SUFFICIENTLY RAISED THE QUESTION WHETHER DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF THE PLEA AND WHETHER THAT FAILURE AMOUNTED TO INEFFECTIVE ASSISTANCE UNDER THE FEDERAL STANDARD, THE ARGUMENT THAT THE COURT FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES WAS REJECTED BECAUSE THERE WAS A SUFFICIENT RECORD TO HAVE RAISED THAT ARGUMENT ON APPEAL (SECOND DEPT))/VACATE CONVICTION, MOTION TO  (DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, THE PAPERS SUFFICIENTLY RAISED THE QUESTION WHETHER DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF THE PLEA AND WHETHER THAT FAILURE AMOUNTED TO INEFFECTIVE ASSISTANCE UNDER THE FEDERAL STANDARD, THE ARGUMENT THAT THE COURT FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES WAS REJECTED BECAUSE THERE WAS A SUFFICIENT RECORD TO HAVE RAISED THAT ARGUMENT ON APPEAL (SECOND DEPT))

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IN A CLOSE CASE THE SECOND DEPT HELD DEFENDANT VALIDLY WAIVED HIS RIGHT TO APPEAL, THE COMPREHENSIVE OPINIONS BY TWO CONCURRING JUSTICES AIM TO INSTRUCT TRIAL JUDGES ON THE REQUIREMENTS FOR A VALID WAIVER (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Leventhal, with a concurring opinion by Justice Scheinkman (joined by all of the justices), determined that defendant validly waived his right to appeal. The comprehensive opinions aim to instruct trial judges on what is required for a valid waiver:

Although we hold that the defendant validly waived his right to appeal, precluding review of his contention that the sentence imposed was excessive, we take the opportunity to respectfully urge our trial courts to give greater attention to the colloquy used in taking a waiver of the right to appeal. * * *

The defendant answered in the affirmative when the Supreme Court asked, “Do you understand that one of the terms of this plea agreement is that you will not exercise your right to appeal.” The court’s phrasing served to differentiate the rights the defendant gave up by pleading guilty from the right to appeal the defendant gave up as part of this plea agreement. The defendant also answered in the affirmative when the court later asked, “By waiving your right to appeal, you will be foreclosed forever from complaining about any errors that may have occurred in this proceeding. Do you realize that?” This question provided some explanation of the nature of the right to appeal and the consequences of waiving it, and was met with an affirmative response. Additionally, the defendant acknowledged signing the written waiver form, and answered that he discussed it with his attorney before he signed it, that he understood all those discussions, that he was satisfied with those discussions, and that he signed it of his own free will. Granted, whether the appeal waiver is valid in this case presents a very close question given, inter alia, that the on-the-record explanation of the nature of the right to appeal and the consequences of waiving it was terse and included no reference to a higher court or the Appellate Division; the defendant had a limited education, having stopped attending school in the eighth grade; and he had minimal prior experience with the criminal justice system, having been adjudicated a youthful offender but not having been convicted of a felony previously. Nonetheless, the record before us, consisting of the oral colloquy and the detailed written waiver, sufficiently demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal. People v Batista, 2018 NY Slip Op 07445, Second Dept 11-7-18

CRIMINAL LAW (APPEALS, WAIVER, IN A CLOSE CASE THE SECOND DEPARTMENT HELD DEFENDANT VALIDLY WAIVED HIS RIGHT TO APPEAL, THE COMPREHENSIVE OPINIONS BY TWO CONCURRING JUSTICES AIM TO INSTRUCT TRIAL JUDGES ON THE REQUIREMENTS FOR A VALID WAIVER (SECOND DEPT))/APPEALS (CRIMINAL LAW, WAIVER, IN A CLOSE CASE THE SECOND DEPARTMENT HELD DEFENDANT VALIDLY WAIVED HIS RIGHT TO APPEAL, THE COMPREHENSIVE OPINIONS BY TWO CONCURRING JUSTICES AIM TO INSTRUCT TRIAL JUDGES ON THE REQUIREMENTS FOR A VALID WAIVER (SECOND DEPT))/WAIVER OF APPEAL (CRIMINAL LAW, IN A CLOSE CASE THE SECOND DEPARTMENT HELD DEFENDANT VALIDLY WAIVED HIS RIGHT TO APPEAL, THE COMPREHENSIVE OPINIONS BY TWO CONCURRING JUSTICES AIM TO INSTRUCT TRIAL JUDGES ON THE REQUIREMENTS FOR A VALID WAIVER (SECOND DEPT))

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GUILTY PLEA VACATED IN THE INTEREST OF JUSTICE, NO SHOWING DEFENDANT UNDERSTOOD THE RIGHTS HE WAS WAIVING BY ENTERING THE PLEA (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, considering the validity of the plea in the interest of justice because the error was not preserved, determined there was no showing defendant understood the rights he was waiving by pleading guilty:

Defendant’s contention on appeal, however, is unpreserved for our review because, although defendant made a postplea motion to withdraw his guilty plea (see CPL 220.60 [3]), his motion was not premised upon the grounds now asserted — to wit, County Court’s alleged failure to adequately inform him of the constitutional rights that he was forfeiting by pleading guilty …  We nonetheless exercise our interest of justice jurisdiction to take corrective action and reverse the judgment (see CPL 470.15 [3] [c]…).

“When a defendant opts to plead guilty, he [or she] must waive certain constitutional rights — the privilege against self-incrimination and the rights to a jury trial and to be confronted by witnesses”… . “While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights” … . During the plea proceedings, County Court engaged in an abbreviated colloquy during which it made only a passing reference to certain rights that defendant was forfeiting by pleading guilty. Although defendant was advised of his right to a jury trial, the court did not mention the privilege against self-incrimination or the right to be confronted by witnesses… . The court also failed to establish adequately that defendant had consulted with his counsel specifically about his relinquishment of trial-related rights or the consequences of his guilty plea, “instead making a vague inquiry into whether defendant had spoken to defense counsel” …  about “the indictment, . . . the drug charge, and anything else that [was] important to [him]” … . With no affirmative showing on the record before us that defendant understood and voluntarily waived his constitutional rights at the time he entered his guilty plea, the plea was invalid and must be vacated … . People v Simon, 2018 NY Slip Op 07370, Third Dept 11-1-18

CRIMINAL LAW (GUILTY PLEA VACATED IN THE INTEREST OF JUSTICE, NO SHOWING DEFENDANT UNDERSTOOD THE RIGHTS HE WAS WAIVING BY ENTERING THE PLEA (THIRD DEPT))/APPEALS (CRIMINAL LAW, (GUILTY PLEA VACATED IN THE INTEREST OF JUSTICE, NO SHOWING DEFENDANT UNDERSTOOD THE RIGHTS HE WAS WAIVING BY ENTERING THE PLEA (THIRD DEPT))/GUILTY PLEA (GUILTY PLEA VACATED IN THE INTEREST OF JUSTICE, NO SHOWING DEFENDANT UNDERSTOOD THE RIGHTS HE WAS WAIVING BY ENTERING THE PLEA (THIRD DEPT))

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TRIAL TESTIMONY ALLEGING MULTIPLE INSTANCES OF SEXUAL INTERCOURSE IN THE SINGLE MONTH ENCOMPASSED BY THIRTY INDICTMENT COUNTS RENDERED THOSE COUNTS DUPLICITOUS REQUIRING DISMISSAL (SECOND DEPT).

The Second Department dismissed the counts of the sexual-offense indictment which were rendered duplicitous by the trial evidence. The counts alleging sexual intercourse with the complainant when she was 13 were not duplicitous on the face of the indictment, but the complainant testified sexual intercourse occurred at least 20 times during each month alleged in the relevant counts. The convictions for the counts where the complainant testified only one act occurred were upheld:

Counts 28 through 47 and counts 49 through 58 of the indictment are valid on their face. However, at trial, the complainant testified that when she was 13 years old, the then 26-year-old defendant had sexual intercourse with her and engaged in oral sex with her at least 20 times per month, i.e., at least 20 times during the one-month period encompassed by each of those counts. Thus, the complainant’s testimony demonstrated that each of those counts was premised upon multiple acts of rape and criminal sexual act, and they are, therefore, void for duplicitousness … . Accordingly, we vacate the convictions of rape in the second degree under counts 28 through 47 of the indictment and criminal sexual act in the second degree under counts 49 through 58 of the indictment, vacate the sentences imposed thereon, and dismiss those counts in the indictment.

The defendant was also charged under count 27 of the indictment with committing rape in the second degree (Penal Law § 130.30[1]) by, being 18 years old or more, engaging in an act of sexual intercourse with a person less than 15 years old between March 11, 2011, and March 31, 2011. Count 48 of the indictment charged the defendant with committing criminal sexual act in the second degree …  by, being 18 years old or more, engaging in oral sexual conduct with a person less than 15 years old between March 11, 2011, and March 31, 2011.

Where a crime, such as rape or criminal sexual act, “is made out by the commission of one act, that act must be the only offense alleged in the count” … . Contrary to the defendant’s contention, counts 27 and 48 of the indictment were not duplicitous on their face, since they each charged the defendant with a single act … . Further, since the complainant testified at trial that a single act of rape and a single oral sexual act occurred during the period of March 11, 2011, to March 31, 2011, acts which formed the basis of counts 27 and 48 of the indictment, these counts are not duplicitous … . People v Gerardi, 2018 NY Slip Op 07325, Second Dept 10-31-18

CRIMINAL LAW (EVIDENCE, TRIAL TESTIMONY ALLEGING MULTIPLE INSTANCES OF SEXUAL INTERCOURSE IN THE SINGLE MONTH ENCOMPASSED BY THIRTY INDICTMENT COUNTS RENDERED THOSE COUNTS DUPLICITOUS REQUIRING DISMISSAL (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, TRIAL TESTIMONY ALLEGING MULTIPLE INSTANCES OF SEXUAL INTERCOURSE IN THE SINGLE MONTH ENCOMPASSED BY THIRTY INDICTMENT COUNTS RENDERED THOSE COUNTS DUPLICITOUS REQUIRING DISMISSAL (SECOND DEPT))/INDICTMENTS (DUPLICITOUS,  TRIAL TESTIMONY ALLEGING MULTIPLE INSTANCES OF SEXUAL INTERCOURSE IN THE SINGLE MONTH ENCOMPASSED BY THIRTY INDICTMENT COUNTS RENDERED THOSE COUNTS DUPLICITOUS REQUIRING DISMISSAL (SECOND DEPT))/DUPLICITOUS INDICTMENTS (EVIDENCE, TRIAL TESTIMONY ALLEGING MULTIPLE INSTANCES OF SEXUAL INTERCOURSE IN THE SINGLE MONTH ENCOMPASSED BY THIRTY INDICTMENT COUNTS RENDERED THOSE COUNTS DUPLICITOUS REQUIRING DISMISSAL (SECOND DEPT))/RAPE (DUPLICITOUS INDICTMENT, TRIAL TESTIMONY ALLEGING MULTIPLE INSTANCES OF SEXUAL INTERCOURSE IN THE SINGLE MONTH ENCOMPASSED BY THIRTY INDICTMENT COUNTS RENDERED THOSE COUNTS DUPLICITOUS REQUIRING DISMISSAL (SECOND DEPT))

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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))

,

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))

, ,

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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