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FOR CAUSE CHALLENGE TO JUROR, BASED UPON IMPLIED BIAS, SHOULD HAVE BEEN GRANTED, JUROR’S LIFE WAS SAVED BY THE TRAUMA SURGEON WHO TESTIFIED ABOUT THE VICTIM’S WOUNDS, MULTIPLE STAB WOUNDS DID NOT SUPPORT LESSER INCLUDED OFFENSE OF RECKLESS ASSAULT (FOURTH DEPT).

The Fourth Department reversed defendant's conviction finding that the for cause challenge to a juror should have been granted. The trauma surgeon who testified about the wounds suffered by the victim had been the trauma surgeon who saved the juror's life. Because there will be a new trial, the Fourth Department ruled the evidence (multiple stab wounds) did not support charging the jury with the lesser included offense of reckless assault:

A prospective juror may be challenged for cause on, inter alia, the ground that he or she has some relationship to a prospective witness at trial of a nature that “is likely to preclude [the prospective juror] from rendering an impartial verdict”… . Such a relationship gives rise to what is known as “an implied bias' . . . that requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect her ability to be fair and impartial”… , and “cannot be cured with an expurgatory oath” … . Not every potential juror-witness relationship necessitates disqualification, but courts are “advised . . . to exercise caution in these situations by leaning toward disqualifying a prospective juror of dubious impartiality' “… . Relevant factors for the court to consider in determining whether disqualification is necessary include the nature of the relationship and the frequency of contact … . The denial of a challenge for cause has been upheld where the relationship at issue arose in a professional context and “was distant in time and limited in nature” … . Conversely, the Court of Appeals has required disqualification where the relationship was “essentially professional” but “also somewhat intimate” .

We conclude that the juror's testimony indicated a likelihood that her relationship to the surgeon was of a nature that would preclude her from rendering an impartial verdict. The juror was in the hospital for an extended period of time suffering from an unspecified trauma. During that time, the surgeon was primarily responsible for the juror's care, and they had contact on at least a daily basis. Most significantly, the juror was convinced that the surgeon had saved her life. Thus, although the relationship arose in a professional context, it was, at least from the juror's perspective, something more than a mere professional relationship. People v Farley, 2018 NY Slip Op 06380, Fourth Dept 9028-18

CRIMINAL LAW (FOR CAUSE CHALLENGE TO JUROR, BASED UPON IMPLIED BIAS, SHOULD HAVE BEEN GRANTED, JUROR'S LIFE WAS SAVED BY THE TRAUMA SURGEON WHO TESTIFIED ABOUT THE VICTIM'S WOUNDS, MULTIPLE STAB WOUNDS DID NOT SUPPORT LESSER INCLUDED OFFENSE OF RECKLESS ASSAULT (FOURTH DEPT)}/JURORS (CRIMINAL LAW, FOR CAUSE CHALLENGE TO JUROR, BASED UPON IMPLIED BIAS, SHOULD HAVE BEEN GRANTED, JUROR'S LIFE WAS SAVED BY THE TRAUMA SURGEON WHO TESTIFIED ABOUT THE VICTIM'S WOUNDS, MULTIPLE STAB WOUNDS DID NOT SUPPORT LESSER INCLUDED OFFENSE OF RECKLESS ASSAULT (FOURTH DEPT)}/FOR CAUSE CHALLENGE (CRIMINAL LAW, FOR CAUSE CHALLENGE TO JUROR, BASED UPON IMPLIED BIAS, SHOULD HAVE BEEN GRANTED, JUROR'S LIFE WAS SAVED BY THE TRAUMA SURGEON WHO TESTIFIED ABOUT THE VICTIM'S WOUNDS, MULTIPLE STAB WOUNDS DID NOT SUPPORT LESSER INCLUDED OFFENSE OF RECKLESS ASSAULT (FOURTH DEPT)}/ASSAULT (CRIMINAL LAW, FOR CAUSE CHALLENGE TO JUROR, BASED UPON IMPLIED BIAS, SHOULD HAVE BEEN GRANTED, JUROR'S LIFE WAS SAVED BY THE TRAUMA SURGEON WHO TESTIFIED ABOUT THE VICTIM'S WOUNDS, MULTIPLE STAB WOUNDS DID NOT SUPPORT LESSER INCLUDED OFFENSE OF RECKLESS ASSAULT (FOURTH DEPT))

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TRIAL JUDGE’S HANDLING OF JURY NOTES CONSTITUTED A MODE OF PROCEEDINGS ERROR, REVERSAL REQUIRED DESPITE FAILURE TO PRESERVE THE ERROR (SECOND DEPT).

The Second Department, reversing defendant's conviction, determined the trial judge committed a mode of proceedings error in dealing with jury notes. Therefore reversal was required despite the failure to preserve the error:

The defendant correctly contends that the Supreme Court's handling of two jury notes failed to comply with CPL 310.30, in accordance with the procedure outlined in People v O'Rama (78 NY2d 270). “[W]henever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel”… . ” After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses. The court should then ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to any potentially harmful information. Once the jury is returned to the courtroom, the communication should be read in open court'” … . “Where a trial court fails to provide counsel with meaningful notice of the precise content of a substantive juror inquiry, a mode of proceedings error occurs, and reversal is therefore required even in the absence of an objection'” … .

Here, the subject jury notes requested “material evidence” and “Ms. Bernard Testimony read back.” The Supreme Court did not read the contents of either note into the record, but rather apprised counsel of the contents of the notes in general terms. The court then convened the jury, and the testimony of the specified witness was read back.

Although the defendant failed to object to the manner in which the Supreme Court handled these notes, under the circumstances of this case, the court violated People v O'Rama and committed a mode of proceedings error, obviating the need for preservation, by failing to provide the defendant with notice of the “precise contents” of the notes prior to giving its responses … . The jury's requests for “material evidence” and a readback of witness testimony were not mere ministerial inquiries, but rather substantive jury notes, the precise contents of which the court was required to disclose … . Accordingly, the court's failure to provide counsel with meaningful notice of either of these substantive jury notes requires reversal of the judgment and a new trial. People v Wood, 2018 NY Slip Op 06277. Second Dept 9-26-18

CRIMINAL LAW (TRIAL JUDGE'S HANDLING OF JURY NOTES CONSTITUTED A MODE OF PROCEEDINGS ERROR, REVERSAL REQUIRED DESPITE FAILURE TO PRESERVE THE ERROR (SECOND DEPT))/APPEALS (CRIMINAL LAW, TRIAL JUDGE'S HANDLING OF JURY NOTES CONSTITUTED A MODE OF PROCEEDINGS ERROR, REVERSAL REQUIRED DESPITE FAILURE TO PRESERVE THE ERROR (SECOND DEPT))/JURY NOTES (TRIAL JUDGE'S HANDLING OF JURY NOTES CONSTITUTED A MODE OF PROCEEDINGS ERROR, REVERSAL REQUIRED DESPITE FAILURE TO PRESERVE THE ERROR (SECOND DEPT))/MODE OF PROCEEDINGS ERROR (TRIAL JUDGE'S HANDLING OF JURY NOTES CONSTITUTED A MODE OF PROCEEDINGS ERROR, REVERSAL REQUIRED DESPITE FAILURE TO PRESERVE THE ERROR (SECOND DEPT))

INDICTMENT CHARGING CRIMINAL POSSESSION OF A WEAPON WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT ALLEGE THE POSSESSION WAS OUTSIDE DEFENDANT’S HOME OR BUSINESS (SECOND DEPT).

The Second Department, reversing defendant's conviction, determined the indictment was jurisdictionally defective. The indictment charged criminal possession  of a weapon but did not allege the possession was outside the defendant's home or business:

The defendant's conviction of criminal possession of a weapon in the second degree under Penal Law § 265.03 must be vacated. Penal Law § 265.03(3) exempts from criminal liability under that subdivision a person's possession of a loaded firearm when such possession takes place in the person's home or place of business. In this case, the indictment charging a violation of Penal Law § 265.03(3) failed to allege that the defendant's possession of the subject weapon was outside of his home or place of business… . As correctly conceded by the People, this omission rendered that count of the indictment jurisdictionally defective, which is a type of defect that is not waivable … . People v Tromp, 2018 NY Slip Op 06275, Second Dept 9-26-18

CRIMINAL LAW (INDICTMENT CHARGING CRIMINAL POSSESSION OF A WEAPON WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT ALLEGE THE POSSESSION WAS OUTSIDE DEFENDANT'S HOME OR BUSINESS (SECOND DEPT))/INDICTMENTS  (INDICTMENT CHARGING CRIMINAL POSSESSION OF A WEAPON WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT ALLEGE THE POSSESSION WAS OUTSIDE DEFENDANT'S HOME OR BUSINESS (SECOND DEPT))/WEAPON, CRIMINAL POSSESSION (INDICTMENT CHARGING CRIMINAL POSSESSION OF A WEAPON WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT ALLEGE THE POSSESSION WAS OUTSIDE DEFENDANT'S HOME OR BUSINESS (SECOND DEPT))

HABEAS CORPUS PETITIONS STEMMING FROM THE DENIAL OF BAIL IN AN ATTEMPTED MURDER CASE PROPERLY DENIED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, determined the two habeas corpus petitions, stemming from the denial of bail in an attempted murder case, were properly denied. The petitioner was charged with the attempted murder of her husband. It was petitioner's cousin who actually attacked petitioner's husband. The cousin had been convicted after trial before the judge who twice denied petitioner's bail applications, resulting in the two habeas corpus petition's before the First Department:

… [W]e find that the habeas court in the first proceeding correctly found that Justice Farber did not abuse his discretion in denying petitioner's initial bail application. The denial of bail was amply supported by the seriousness of the charges including attempted murder, the potential sentence of at least 5 years and up to 25 years in prison for the class B violent felonies of attempted murder in the second degree or first-degree burglary … , as well as the strength of the evidence. Notably, Justice Farber had just presided over Nolan's trial for carrying out the plot allegedly orchestrated by petitioner … .

To the extent [petitioner] argues that the court improperly focused on the seriousness of the charges and the sentencing exposure to the exclusion of other factors, the court's failure to explicitly address each statutory factor or every specific argument raised by the parties on the record does not establish that the court abused its discretion. The court implicitly based its ruling on all of the parties' arguments … . * * *

“Petitioner's position, if accepted, would mandate that bail be granted in every case in which the accused has the financial resources to offer private security and monitoring, thereby depriving the court of its discretion to grant or deny bail on consideration of the factors enumerated in CPL 510.30(2)(a). While petitioner claims that her security package is foolproof and trumps all other factors, the fact remains that no ad hoc arrangement based on keeping a defendant in her private home under the watch of a security firm that she hired could be as secure as remand” … . Matter of State of NY ex rel. Fischetti v Brann, 2018 NY Slip Op 06220, First Dept 9-25-18

CRIMINAL LAW (HABEAS CORPUS PETITIONS STEMMING FROM THE DENIAL OF BAIL IN AN ATTEMPTED MURDER CASE PROPERLY DENIED (FIRST DEPT))/HABEAS CORPUS (HABEAS CORPUS PETITIONS STEMMING FROM THE DENIAL OF BAIL IN AN ATTEMPTED MURDER CASE PROPERLY DENIED (FIRST DEPT))/BAIL  (HABEAS CORPUS PETITIONS STEMMING FROM THE DENIAL OF BAIL IN AN ATTEMPTED MURDER CASE PROPERLY DENIED (FIRST DEPT))

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2015 MOTION TO REINSTATE THE APPEAL OF A 1986 CONVICTION DENIED (FIRST DEPT).

The First Department determined defendant's appeal should be dismissed because more than 30 had passed between his conviction and the motion to reinstate the appeal. The defendant had absconded from his 1986 trial and then served a long sentence in North Carolina:

In 1984 defendant absconded during trial, and was tried and convicted in absentia. His attorney filed a notice of appeal, but defendant did nothing to perfect his appeal, which was dismissed in 1998, on the People's motion, for failure to prosecute.

Meanwhile, in 1986, defendant was convicted of serious charges in North Carolina, and he served a lengthy sentence there. Commencing in 2003, nearly 20 years after his conviction, when the New York Department of Correctional Services lodged a detainer in North Carolina based on the instant conviction, defendant filed various pro se motions in connection with his New York conviction. However, defendant did not move to reinstate his appeal until 2015, more than 30 years after his conviction. …

The People seek to dismiss defendant's appeal based on the “failure of timely prosecution or perfection thereof” pursuant to CPL 470.60(1). Where an absconding defendant's appeal remains pending for a long time, whether the appeal should be ultimately be permitted to proceed is “subject to the broad discretion of the Appellate Division” … . In exercising its discretion, this Court may consider factors including whether defendant's flight caused “a significant interference with the operation of [the] appellate process”; whether defendant's absence “so delayed the administration of justice that the People would be prejudiced in locating witnesses and presenting evidence at any retrial should the defendant be successful on appeal”; the length of the defendant's absence; whether the defendant “voluntarily surrendered”; and the merits of the appeal … . People v Williams, 2018 NY Slip Op 06182, First Dept 9-25-18

CRIMINAL LAW (APPEALS, 2015 MOTION TO REINSTATE THE APPEAL OF A 1986 CONVICTION DENIED (FIRST DEPT))/APPEALS (CRIMINAL LAW, 2015 MOTION TO REINSTATE THE APPEAL OF A 1986 CONVICTION DENIED (FIRST DEPT))

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DETECTIVE’S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant's conviction, determined the detective's testimony that the complainant picked the defendant out of a lineup constituted inadmissible bolstering. The issue was reviewed in the interest of justice (error not preserved);

The defendant has not preserved for appellate review his contention that the prosecutor improperly elicited testimony from a detective stating that he arrested the defendant after the defendant was identified in a lineup by the complainant. However, we nevertheless review this contention in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a]…). The detective's testimony implicitly bolstered the complainant's testimony by providing official confirmation of the complainant's identification of the defendant … . A violation of the rule against bolstering may not be overlooked except where the evidence of identity is so strong that there is no serious issue upon that point … . Here, the evidence that the defendant committed the crime was not so overwhelming as to render the error harmless. This error was compounded by improper comments made during the People's summation regarding the complainant's identification of the defendant as the robber. People v Ramirez, 2018 NY Slip Op 06120, Second Dept 9-19-18

CRIMINAL LAW (DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/APPEALS (CRIMINAL LAW, DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/LINEUPS (CRIMINAL LAW, DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/BOLSTERING (CRIMINAL LAW, LINEUPS, DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/PROSECUTORIAL MISCONDUCT (DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))

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SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT’S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT).

The Second Department determined defendant juvenile offender could not move to suppress his presentence report in subsequent Department of Homeland Security proceedings:

The defendant, an immigrant from Bangladesh, was adjudicated a youthful offender. After completing his sentence, the defendant was detained by the United States Department of Homeland Security (hereinafter the DHS), which, in reliance on the defendant's presentence report, argued that the defendant should be denied a bond due to his youthful offender adjudication. Thereafter, the defendant moved before the Supreme Court in the subject criminal proceeding pursuant to CPLR 3103 for a protective order “enjoining the [DHS's] use” of his presentence report, arguing that it is a confidential record under CPL 720.35(2), which the DHS had improperly obtained. In an order dated June 6, 2017, the Supreme Court denied the defendant's motion. The defendant appeals.

CPLR 3103 ” confers broad discretion upon a court to fashion appropriate remedies' to prevent the abuse of disclosure devices” … . Pursuant to CPLR 3103(c), “[i]f any disclosure under this article has been improperly or irregularly obtained so that a substantial right of a party is prejudiced, the court, on motion, may make an appropriate order, including an order that the information be suppressed” … . Here, since the DHS did not obtain the presentence report in the course of any disclosure process under CPLR Article 31, there is no basis for the issuance of a protective order pursuant to CPLR 3103(c). Moreover, since “[c]ontrol over immigration and naturalization is entrusted exclusively to the Federal Government, and a State has no power to interfere” … , the Supreme Court lacked the power to suppress the presentence report in immigration proceedings. People v Saqline K., 2018 NY Slip Op 06115, Second Dept 9-19-18

CRIMINAL LAW (SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT'S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT))/IMMIGRATION LAW (SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT'S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT))/EVIDENCE (IMMIGRATION LAW, SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT'S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT))CIVIL PROCEDURE (IMMIGRATION LAW, (SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT'S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT))PRESENTENCE REPORT (IMMIGRATION LAW, SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT'S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT))

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STREET STOP NOT JUSTIFIED UNDER DE BOUR ANALYSIS, SEIZED FIREARM AND STATEMENT SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, with a concurring memorandum, determined that defendant's motion to suppress the evidence seized from his person and his statement should have been granted in this street stop case. The majority reversed under a DeBour analysis. The concurring memorandum, although agreeing with the DeBour analysis, would have reversed because the People did not demonstrate the legality of the police conduct at the suppression hearing:

This encounter began as a level two intrusion, with the officer, while seated in the vehicle, stating “police” and asking the defendant to stop, then exiting his vehicle, walking onto the sidewalk, again stating “police” and asking the defendant to stop. Thereafter, the officer's pursuit of the defendant, by getting “closer to the defendant picking up with his pace,” constituted a level three intrusion under De Bour, requiring a reasonable suspicion that the defendant was involved in a felony or misdemeanor … . However, the circumstances, such as that the defendant had a nondescript bulge in his right jacket pocket, was leaning to the right side, and walked away from the officer without complying with the officer's requests for him to stop, did not support a reasonable suspicion of particularized criminal action. After all, “a bulging jacket pocket is hardly indicative of criminality. As [the Court of Appeals has] recognized, a pocket bulge, unlike a waistband bulge, could be caused by any number of innocuous objects'” (People v Holmes, 81 NY2d at 1058, quoting People v De Bour, 40 NY2d at 221), and “an individual has a right to be let alone' and refuse to respond to police inquiry” … . Since this level three intrusion was not justified, it cannot be validated by the officer's subsequent observation of the firearm … .

Moreover, under the circumstances of this case, the defendant's subsequent statement to law enforcement officers must be suppressed as the product of the unlawful police conduct … . People v Jones, 2018 NY Slip Op 06114, Second Dept 9-19-18

CRIMINAL LAW (STREET STOP NOT JUSTIFIED UNDER DE BOUR ANALYSIS, SEIZED FIREARM AND STATEMENT SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, STREET STOP NOT JUSTIFIED UNDER DE BOUR ANALYSIS, SEIZED FIREARM AND STATEMENT SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/SEARCH AND SEIZURE  (STREET STOP NOT JUSTIFIED UNDER DE BOUR ANALYSIS, SEIZED FIREARM AND STATEMENT SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/STREET STOPS (STREET STOP NOT JUSTIFIED UNDER DE BOUR ANALYSIS, SEIZED FIREARM AND STATEMENT SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/SUPPRESS, MOTION TO   (STREET STOP NOT JUSTIFIED UNDER DE BOUR ANALYSIS, SEIZED FIREARM AND STATEMENT SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/DE BOUR (STREET STOP NOT JUSTIFIED UNDER DE BOUR ANALYSIS, SEIZED FIREARM AND STATEMENT SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))

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DEFENSE ATTORNEY TOOK A POSITION ADVERSE TO DEFENDANT STATING THERE WAS NO BASIS FOR DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR CONSIDERATION OF THE MOTION WITH NEW DEFENSE COUNSEL (SECOND DEPT).

The Second Department remitted the matter for consideration of defendant's pro se motion to withdraw his guilty plea. His attorney told the judge there was no basis for the motion which adversely affected defendant's right to counsel:

…[T]he defendant pleaded guilty to tampering with physical evidence. Thereafter, he moved pro se to withdraw his plea of guilty. When the matter came on for sentencing, the defendant advised the County Court that he wanted to withdraw his plea. His attorney stated that there was no basis for the defendant to withdraw his plea, and the court proceeded to impose sentence. The defendant's right to counsel was adversely affected when his attorney took a position adverse to that of the defendant. The court should have appointed new counsel to represent the defendant with respect to the motion to withdraw his plea of guilty … . People v Falls, 2018 NY Slip Op 06110, Second Dept 9-19-18

CRIMINAL LAW (DEFENSE ATTORNEY TOOK A POSITION ADVERSE TO DEFENDANT STATING THERE WAS NO BASIS FOR DEFENDANT'S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR CONSIDERATION OF THE MOTION WITH NEW DEFENSE COUNSEL (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE ATTORNEY TOOK A POSITION ADVERSE TO DEFENDANT STATING THERE WAS NO BASIS FOR DEFENDANT'S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR CONSIDERATION OF THE MOTION WITH NEW DEFENSE COUNSEL (SECOND DEPT))/RIGHT TO COUNSEL  (DEFENSE ATTORNEY TOOK A POSITION ADVERSE TO DEFENDANT STATING THERE WAS NO BASIS FOR DEFENDANT'S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR CONSIDERATION OF THE MOTION WITH NEW DEFENSE COUNSEL (SECOND DEPT))

SENTENCING JUDGE MAY HAVE MISTAKENLY BELIEVED THE MINIMUM PERIOD OF POST RELEASE SUPERVISION (PRS) WAS FIVE YEARS WHEN IT ACTUALLY WAS TWO AND A HALF YEARS, MATTER SENT BACK FOR RESENTENCING (FIRST DEPT).

The First Department, over a dissent, sent the case back for resentencing because it appeared the sentencing judge was under the misimpression the minimum period of post release supervision (PRS) was five years, when the minimum was two and a half years:

At the time of defendant's plea, the court, counsel, and the prosecution believed defendant was a predicate felony offender. The plea offer contained the mandatory five-year term of PRS for a second felony offender convicted of a first violent felony offense (see Penal Law §§ 70.00[6], 70.45[2][f]). At sentencing, however, when defense counsel stated that defendant was not, in fact, a predicate felon, the sentencing court asked whether defendant's status as a first felony offender “change[d] our circumstances.” Defense counsel responded, “I think the minimum is still three and a half.” The court later asked, “Is there any reason that I should not impose the sentence of three-and- one-half years plus five years of post-release supervision?” Defense counsel replied, “Even if it was not quote unquote agreed upon, that would have been the best Your Honor could have given.” As indicated, the defense counsel's statement was correct as to the prison term, but not as to the period of PRS. People v Holmes, 2018 NY Slip Op 06055, First Dept 9-13-18

CRIMINAL LAW (SENTENCING JUDGE MAY HAVE MISTAKENLY BELIEVED THE MINIMUM PERIOD OF POST RELEASE SUPERVISION (PRS) WAS FIVE YEARS WHEN IT ACTUALLY WAS TWO AND A HALF YEARS, MATTER SENT BACK FOR RESENTENCING (FIRST DEPT))/POST RELEASE SUPERVISION (PRS)  (SENTENCING JUDGE MAY HAVE MISTAKENLY BELIEVED THE MINIMUM PERIOD OF POST RELEASE SUPERVISION (PRS) WAS FIVE YEARS WHEN IT ACTUALLY WAS TWO AND A HALF YEARS, MATTER SENT BACK FOR RESENTENCING (FIRST DEPT))

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