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WAIVER OF APPEAL INVALID AND GUILTY PLEA VACATED BECAUSE DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POST-RELEASE SUPERVISION (FOURTH DEPT). ​

The Fourth Department, vacating defendant's guilty plea, determine defendant's waiver of appeal was invalid and defendant was not informed of the period of post-release supervision:

We agree with defendant that his purported waiver of the right to appeal is invalid. “County Court failed to obtain a knowing and voluntary waiver of the right to appeal at the time of the plea” … . Moreover, “the written waiver of the right to appeal that [defendant] signed as part of the treatment court contract,' [a day] after he pleaded guilty, does not constitute a valid waiver of the right to appeal” …

Furthermore, we agree with defendant that the court failed to fulfill its obligation to advise him, at the time of the plea, that the sentences imposed upon his conviction of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree would include periods of postrelease supervision … . People v Teta, 2018 NY Slip Op 06674, Fourth Dept 10-5-18

CRIMINAL LAW (WAIVER OF APPEAL INVALID AND GUILTY PLEA VACATED BECAUSE DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POST-RELEASE SUPERVISION (FOURTH DEPT))/APPEALS (CRIMINAL LAW, WAIVER OF APPEAL INVALID AND GUILTY PLEA VACATED BECAUSE DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POST-RELEASE SUPERVISION (FOURTH DEPT))/POST-RELEASE SUPERVISION (CRIMINAL LAW, WAIVER OF APPEAL INVALID AND GUILTY PLEA VACATED BECAUSE DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POST-RELEASE SUPERVISION (FOURTH DEPT))/GUILTY PLEA, VACATION OF (CRIMINAL LAW, WAIVER OF APPEAL INVALID AND GUILTY PLEA VACATED BECAUSE DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POST-RELEASE SUPERVISION (FOURTH DEPT))

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INSUFFICIENT EVIDENCE DEFENDANT AND VICTIM WERE STRANGERS, RISK ASSESSMENT REDUCED BY 20 POINTS MAKING DEFENDANT A PRESUMPTIVE LEVEL ONE SEX OFFENDER (FOURTH DEPT).

The Fourth Department determined there was insufficient evidence the defendant and the 16-year-old victim and the 24-year-old were strangers. The risk assessment was therefore reduced by 20 points:

We agree with defendant that Supreme Court erred in assessing him 20 points under risk factor 7, which applies when, insofar as relevant here, the offender's conduct ” was directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization' “… . The 24-year-old defendant and the 16-year-old victim met while working at a local Red Cross; the two exchanged contact information and, months later, communicated through social media and by telephone before any sexual contact occurred. Under these circumstances, the People failed to establish by clear and convincing evidence that defendant and the victim were strangers at the time of the crime … . Moreover, the People “presented no evidence that defendant . . . targeted the victim for the primary purpose of victimizing her” … .

Without the 20 points assessed under risk factor 7, defendant is a presumptive level one sex offender … . People v Perez, 2018 NY Slip Op 06666, Fourth Dept 10-5-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, INSUFFICIENT EVIDENCE DEFENDANT AND VICTIM WERE STRANGERS, RISK ASSESSMENT REDUCED BY 20 POINTS MAKING DEFENDANT A PRESUMPTIVE LEVEL ONE SEX OFFENDER (FOURTH DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (INSUFFICIENT EVIDENCE DEFENDANT AND VICTIM WERE STRANGERS, RISK ASSESSMENT REDUCED BY 20 POINTS MAKING DEFENDANT A PRESUMPTIVE LEVEL ONE SEX OFFENDER (FOURTH DEPT))

SUPERIOR COURT INFORMATION WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE A CRIME CHARGED IN THE FELONY COMPLAINT OR A LESSER INCLUDED OFFENSE (FOURTH DEPT).

The Fourth Department, reversing defendant's conviction by guilty plea, determined that the superior court information was jurisdictionally defective:

A defendant may waive indictment and consent to be prosecuted by a superior court information (see CPL 195.20…). As relevant here, “[t]he offenses named [in a superior court information] may include any offense for which the defendant was held for action of a grand jury”… , i.e., “the same crime as [charged in] the felony complaint or a lesser included offense of that crime”… . Inasmuch as attempted kidnapping in the second degree is not a crime charged in the felony complaint or a lesser included offense, the superior court information is jurisdictionally defective. “That defect does not require preservation, and it survives defendant's waiver of the right to appeal and his guilty plea”… . People v Bennett, 2018 NY Slip Op 06663. Fourth Dept 10-5-18

CRIMINAL LAW (SUPERIOR COURT INFORMATION WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE A CRIME CHARGED IN THE FELONY COMPLAINT OR A LESSER INCLUDED OFFENSE (FOURTH DEPT))/SUPERIOR COURT INFORMATION (SUPERIOR COURT INFORMATION WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE A CRIME CHARGED IN THE FELONY COMPLAINT OR A LESSER INCLUDED OFFENSE (FOURTH DEPT))

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THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER’S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT).

The Fourth Department determined there is no mechanism in the Criminal Procedure Law for a nonparty to intervene in a criminal case. Here a reporter sought information about the jurors who were deliberating a murder case. The court further found that the requirements for a CPLR 1013, 1014 motion to intervene were not met here:

… [I]t is well established that “[t]he Criminal Procedure Law provides no mechanism for a nonparty to intervene or be joined in a criminal case” … . Moreover, even assuming, arguendo, that the mechanism for intervening in an action set forth in the Civil Practice Law and Rules authorizes such an intervention in a criminal case (see CPLR 1013), we note that there is a statutory requirement that “[a] motion to intervene shall be accompanied by a proposed pleading setting forth the claim or defense for which intervention is sought” (CPLR 1014), and thus the court here would have “had no power to grant . . . leave to intervene” without a proposed pleading from the intervenors … . Consequently, in each appeal we must vacate the order [which denied the motion to intervene on other grounds] and dismiss the appeal. People v Conley, 2018 NY Slip Op 06647, Fourth Dept 10-5-18

CRIMINAL LAW (MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/CIVIL PROCEDURE (MOTION TO INTEREVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/CPLR 1013, 1014  (MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/INTERVENE, MOTION TO (THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/REPORTERS (CRIMINAL LAW, MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))NEWSPAPERS (CRIMINAL LAW, MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/PRESS (CRIMINAL LAW, MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/MEDIA (CRIMINAL LAW, MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))

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DEFENDANT’S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT’S TREATMENT-CIVIL CONFINEMENT (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Tom, determined defendant did not receive effective assistance of counsel when counsel conceded that defendant had a dangerous mental disorder requiring civil confinement. There was no strategic justification for waiving a CPL 330.20 hearing to determine which treatment/confinement track was appropriate for defendant:

… [A]fter a court accepts a not responsible plea, it must issue an examination order for the defendant to be examined by two qualified psychiatric examiners (CPL 330.20[2]), who must submit to the court a report of their findings and evaluation regarding defendant's mental condition (CPL 330.20[5]).

Critical to this procedure is the requirement that the court conduct an initial hearing within 10 days after receipt of the psychiatric examination reports, in order to classify the defendant as “track one,” “track two,” or “track three” based on the defendant's mental condition (CPL 330.20[6]…).

The track is significant because it determines the level of the defendant's confinement and treatment. Track one is based on a finding of “dangerous mental disorder,” meaning that the defendant suffers from a “mental illness,” and that “because of such condition he currently constitutes a physical danger to himself or others” (CPL 330.20[1][c]; see Mental Hygiene Law § 1.03[20] [defining “mental illness”]). Track two is based on a finding of “mentally ill,” without a dangerous mental disorder (CPL 330.20[1][d]). Track three is based on a finding of not mentally ill (CPL 330.20[7]).

“The track designation places more dangerous acquittees under the purview of the Criminal Procedure Law, while less dangerous, though still mentally ill, acquittees are committed to the custody of the Commissioner of Mental Health and come under the supervision of the Mental Hygiene Law”… . Thus, track designation is “vitally important in determining the level of judicial and prosecutorial involvement in future decisions about an acquittee's confinement, transfer and release” … . People v Darryl T., 2018 NY Slip Op 06634, First Dept 10-4-18

CRIMINAL LAW (DANGEROUS MENTAL DISORDER, CIVIL CONFINEMENT, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/DANGEROUS MENTAL DISORDER (CRIMINAL LAW, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/MENTAL HYGIENE LAW (CRIMINAL LAW, DANGEROUS MENTAL DISORDER, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/CRIMINAL PROCEDURE LAW 330.20  (DANGEROUS MENTAL DISORDER, CIVIL CONFINEMENT, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DANGEROUS MENTAL DISORDER, CIVIL CONFINEMENT, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/INEFFECTIVE ASSISTANCE OF COUNSEL (DANGEROUS MENTAL DISORDER, CIVIL CONFINEMENT, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT (DANGEROUS MENTAL DISORDER, CIVIL CONFINEMENT, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))

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MOTION TO SET ASIDE THE CONVICTION PROPERLY DENIED, EVIDENCE IN AN UNSWORN PRESENTENCE REPORT DID NOT MEET THE STATUTORY CRITERIA FOR THE MOTION (SECOND DEPT).

The Second Department determined defendant's motion to set aside his conviction was properly denied. The defendant argued that the complainant's version of events as stated in the presentence report was newly discovered evidence because it differed from the complainant's trial testimony. The court held that the unsworn presentence report did not meet the statutory requirements for a motion to set aside a conviction:

The “power to grant a new trial on the ground of newly discovered evidence is of statutory origin and strict compliance with the statute is necessary” … . In support of the defendant's motion, he submitted his attorney's affirmation, to which the attorney attached a copy of the presentence report. However, the presentence report did not satisfy the requirement that the defendant submit sworn allegations in support of his motion (see CPL 330.40[2][a]).

A presentence report does not contain sworn allegations. Indeed, probation officers are directed, in preparing their report, to include “an analysis of as much of the information gathered in the investigation as the agency that conducted the investigation deems relevant to the question of sentence” (CPL 390.30[3][a]). It is not mandated, nor expected, that a presentence report include a verbatim account of the complainant's words. Indeed, some presentence reports do not contain victim impact statements. The presentence report is not sworn to by the probation officer who prepares the report. Accordingly, while a presentence report is deemed generally reliable for sentencing purposes, its information “need not always be credited” and at best constitutes “reliable hearsay” … .

Since the “moving papers [did] not contain sworn allegations of all facts essential to support the motion,” the Supreme Court was able to make its determination on the basis of the motion papers and, thus, did not err in failing to hold a hearing … . People v Windsor, 2018 NY Slip Op 06576, Second Dept 10-3-18

CRIMINAL LAW (MOTION TO SET ASIDE THE CONVICTION PROPERLY DENIED, EVIDENCE IN AN UNSWORN PRESENTENCE REPORT DID NOT MEET THE STATUTORY CRITERIA FOR THE MOTION (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, MOTION TO SET ASIDE THE CONVICTION PROPERLY DENIED, EVIDENCE IN AN UNSWORN PRESENTENCE REPORT DID NOT MEET THE STATUTORY CRITERIA FOR THE MOTION (SECOND DEPT))

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DEFENDANT IMPROPERLY SENTENCED AS A SECOND FELONY OFFENDER, ISSUE REVIEWED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined defendant was improperly sentenced as a second felony offender. The issue was not preserved but was reviewed in the interest of justice:

The predicate felony statement filed by the People did not set forth the dates of the defendant’s incarceration since the commission of his prior felony in 1996, as required by CPL 400.21(2). Consequently, the People failed to establish a sufficient tolling period to qualify the defendant’s 1996 conviction as a predicate felony under Penal Law § 70.06(1)(b)(iv) and (v) … . People v Spencer, 2018 NY Slip Op 06574, Second Dept 10-3-18

CRIMINAL LAW (DEFENDANT IMPROPERLY SENTENCED AS A SECOND FELONY OFFENDER, ISSUE REVIEWED IN THE INTEREST OF JUSTICE (SECOND DEPT))/SENTENCING  (DEFENDANT IMPROPERLY SENTENCED AS A SECOND FELONY OFFENDER, ISSUE REVIEWED IN THE INTEREST OF JUSTICE (SECOND DEPT))/SECOND FELONY OFFENDER  (DEFENDANT IMPROPERLY SENTENCED AS A SECOND FELONY OFFENDER, ISSUE REVIEWED IN THE INTEREST OF JUSTICE (SECOND DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT IMPROPERLY SENTENCED AS A SECOND FELONY OFFENDER, ISSUE REVIEWED IN THE INTEREST OF JUSTICE (SECOND DEPT))

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JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT’S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT).

The Second Department, reversing defendant's conviction, determined the jury should have been instructed on a lesser included offense, evidence of defendant's pretrial silence should not have been admitted, and there was misconduct on the part of the prosecutor. The prosecutorial misconduct issues were not preserved, but the issues were reviewed in the interest of justice. The prosecutorial misconduct alone justified reversal:

… [C]riminally negligent homicide, in addition to manslaughter in the second degree, is a lesser included offense of manslaughter in the first degree … , and, viewing the evidence in the light most favorable to the defendant, should have been charged. Had the jury credited the defendant's account of the incident, it reasonably could have concluded that the defendant did not intend to cause serious physical injury and that he failed to perceive that his conduct created a substantial and unjustifiable risk that death would occur … . …

… [T]the defendant correctly contends that the trial court erred in permitting the prosecutor to question him about his post-arrest silence, because, although the defendant initially responded to certain questions asked by the police, he effectively invoked his right to remain silent and offered no information regarding the essential facts of his involvement in the crime … . …

The defendant's contention that he was denied a fair trial due to the prosecutor's improper comments during summation is, for the most part, unpreserved for our review (see CPL 470.05[2]). However, we reach the issue as a matter of discretion in the interest of justice … . The prosecutor engaged in misconduct throughout his summation, inter alia, by continuously referring to the defendant as a liar, misstating evidence, denigrating the defense, shifting the burden of proof, attempting to arouse the sympathies of the jurors, and vouching for his witnesses' credibility … . The cumulative effect of the prosecutor's improper comments deprived the defendant of a fair trial … . People v Flores, 2018 NY Slip Op 06557, Second Dept 10-3-18

CRIMINAL LAW (JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT))/APPEALS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT))/LESSER INCLUDED OFFENSES (JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT))/PROSECUTORIAL MISCONDUCT  (JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT))/INTEREST OF JUSTICE (CRIMINAL LAW, APPEALS, JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT))

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CRITERIA FOR ADMISSION OF EVIDENCE OF UNCHARGED CRIMES AND BAD ACTS EXPLAINED, EVIDENCE OF PRIOR DOMESTIC ABUSE PROPERLY ADMITTED IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT).

The Second Department determined evidence of prior domestic abuse was properly admitted in this criminal contempt proceeding. The court explained the criteria for the admission of evidence of uncharged crimes and bad acts (Molineux evidence):

“[E]vidence of a defendant's uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate the defendant's propensity to commit the crime charged” … . Even where there is a proper nonpropensity purpose, “the decision whether to admit evidence of defendant's prior bad acts rests upon the trial court's discretionary balancing of probative value and unfair prejudice” … . Thus, “[a]dmissibility of evidence under these principles is determined by reference to a two-part inquiry . . . The first level of this inquiry requires the proponent of the evidence, as a threshold matter, to identify some issue, other than mere criminal propensity, to which the evidence is relevant . . . Once such a showing is made, the court must go on to weigh the evidence's probative worth against its potential for mischief to determine whether it should ultimately be placed before the fact finder. This weighing process is discretionary, but the threshold problem of identifying a specific issue, other than propensity, to which the evidence pertains poses a question of law”… .

Contrary to the defendant's contention, the County Court did conduct the requisite “two-part inquiry.” The court determined that evidence of the defendant's prior acts of abuse against the complainant were admissible “as relevant background material regarding the defendant's relationship with the complainant, to explain the issuance of a temporary order of protection, and as evidence of the defendant's motive and intent in the commission of the charged crimes” … . The court then concluded that the probative value of the evidence outweighed any prejudice to the defendant …. Furthermore, the court gave the jury appropriate limiting instructions, to which defense counsel did not object, as to the limited purpose for which that evidence was received … . People v Bittrolff, 2018 NY Slip Op 06551, Second Dept 10-3-18

CRIMINAL LAW (EVIDENCE, CRITERIA FOR ADMISSION OF EVIDENCE OF UNCHARGED CRIMES AND BAD ACTS EXPLAINED, EVIDENCE OF PRIOR DOMESTIC ABUSE PROPERLY ADMITTED IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, CRITERIA FOR ADMISSION OF EVIDENCE OF UNCHARGED CRIMES AND BAD ACTS EXPLAINED, EVIDENCE OF PRIOR DOMESTIC ABUSE PROPERLY ADMITTED IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT)/MOLINEUX (CRIMINAL LAW, CRITERIA FOR ADMISSION OF EVIDENCE OF UNCHARGED CRIMES AND BAD ACTS EXPLAINED, EVIDENCE OF PRIOR DOMESTIC ABUSE PROPERLY ADMITTED IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT))/UNCHARGED CRIMES AND BAD ACTS (CRIMINAL LAW, EVIDENCE, CRITERIA FOR ADMISSION OF EVIDENCE OF UNCHARGED CRIMES AND BAD ACTS EXPLAINED, EVIDENCE OF PRIOR DOMESTIC ABUSE PROPERLY ADMITTED IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT))

SENTENCING JUDGE INDICATED HE WAS BOUND BY AN AGREEMENT WITH THE PEOPLE CONCERNING DEFENDANT’S SENTENCE, HOWEVER, A SENTENCING JUDGE HAS DISCRETION IN SENTENCING, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT).

The Fourth Department, vacating defendant's sentence, determined it appeared the sentencing judge mistakenly believed he was bound by his agreement with the People to impose a particular sentence:

County Court initially imposed a one-year term of interim probation. The court informed defendant that, if he complied with the terms of interim probation, the court would impose a five-year term of probation. Defendant, however, repeatedly violated those terms. At sentencing, the court stated that “the only way” it could secure defendant a plea bargain involving probation was to help negotiate a plea agreement with “specific terms,” including a “severe sanction” in the event that he violated the terms of interim probation. The court then stated that it had to “keep [its] word,” presumably to the People, because otherwise it would be unable to secure the “same opportunity for another defendant who is in a similar situation.” The court further stated that it was “compelled” to impose an indeterminate term of incarceration of 2⅓ to 7 years, which is the maximum legal sentence (see Penal Law § 70.00 [2] [d]; [3] [b]).

Defendant contends that the court failed to exercise its discretion at sentencing. We agree. “[T]he sentencing decision is a matter committed to the exercise of the court's discretion . . . made only after careful consideration of all facts available at the time of sentencing”… . “The determination of an appropriate sentence requires the exercise of discretion after due consideration given to, among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence” … . Here, the court indicated that it was bound by its agreement with the People to impose a particular sentence … . People v Dupont, 2018 NY Slip Op 06392, Fourth Dept 9-28-18

CRIMINAL LAW (SENTENCING JUDGE INDICATED HE WAS BOUND BY AN AGREEMENT WITH THE PEOPLE CONCERNING DEFENDANT'S SENTENCE, HOWEVER, A SENTENCING JUDGE HAS DISCRETION IN SENTENCING, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT))/JUDGES (CRIMINAL LAW, SENTENCING JUDGE INDICATED HE WAS BOUND BY AN AGREEMENT WITH THE PEOPLE CONCERNING DEFENDANT'S SENTENCE, HOWEVER, A SENTENCING JUDGE HAS DISCRETION IN SENTENCING, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT))/SENTENCING (CRIMINAL LAW, SENTENCING JUDGE INDICATED HE WAS BOUND BY AN AGREEMENT WITH THE PEOPLE CONCERNING DEFENDANT'S SENTENCE, HOWEVER, A SENTENCING JUDGE HAS DISCRETION IN SENTENCING, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT))

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