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APPELLATE COURT EXERCISED ITS POWER TO REDUCE A SENTENCE EVEN THOUGH THE SENTENCING COURT DID NOT ABUSE ITS DISCRETION, NOTING EXTRAORDINARY CIRCUMSTANCES (THIRD DEPT).

The Third Department exercised its power to reduce a sentence in the absence of an abuse of discretion by the sentencing judge. In the midst of difficult divorce proceedings defendant deposited a check made out to her and her husband. The evidence demonstrated the husband’s signature was forged and defendant was convicted of criminal possession of a forged instrument. The Third Department did not explain the extraordinary circumstances but deemed the four-month sentence inappropriate and imposed a time-served sentence of 13 days:

“Ordinarily, we refrain from exercising our power to modify a sentence unless the sentencing court abused its discretion or extraordinary circumstances exist warranting such a modification” … . In our view, the circumstances surrounding the commission of the crime and defendant herself are extraordinary and warrant the exercise of that power. Defendant has already served 13 days in jail and, as a matter of discretion in the interest of justice, we reduce the jail component of her sentence to time served … . People v Gretzinger, 2018 NY Slip Op 05716, Third Dept 8-9-18

CRIMINAL LAW (SENTENCING, APPELLATE COURT EXERCISED ITS POWER TO REDUCE A SENTENCE EVEN THOUGH THE SENTENCING COURT DID NOT ABUSE ITS DISCRETION, NOTING EXTRAORDINARY CIRCUMSTANCES (THIRD DEPT))/SENTENCING (APPELLATE COURT EXERCISED ITS POWER TO REDUCE A SENTENCE EVEN THOUGH THE SENTENCING COURT DID NOT ABUSE ITS DISCRETION, NOTING EXTRAORDINARY CIRCUMSTANCES (THIRD DEPT))/APPEALS (CRIMINAL LAW, SENTENCING, APPELLATE COURT EXERCISED ITS POWER TO REDUCE A SENTENCE EVEN THOUGH THE SENTENCING COURT DID NOT ABUSE ITS DISCRETION, NOTING EXTRAORDINARY CIRCUMSTANCES (THIRD DEPT))

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DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT).

The Third Department determined defense counsel was ineffective in failing to request a Frye hearing concerning a computer program, the TrueAllele Caaswork system, used to interpret mixed DNA samples. The appeal was held in abeyance and the matter remitted for the hearing:

​Defendant asserts that his trial counsel should have challenged, by way of a Frye hearing, the reliability of the TrueAllele Casework system, the proprietary “computer program that use[d] mathematics and statistics to interpret” the electronic data generated from the DNA mixtures taken from the lavender gloves and determine the statistical probability of a match between defendant’s DNA and that found on the inside of the gloves. A Frye hearing ascertains the reliability of “novel scientific evidence” by determining “whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally”… . At the time of defendant’s pretrial proceedings in 2014, there were no reported trial court or appellate court decisions in this state establishing that the reliability of the TrueAllele Casework system had been assessed through a Frye hearing or that any court in the state had otherwise accepted expert testimony regarding that proprietary computer program… . Given these circumstances, we do not find that it would have been futile for defense counsel to have requested a Frye hearing to challenge the reliability of the TrueAllele Casework system or that such an application would have had little or no likelihood of success … . People v Wilson, 2018 NY Slip Op 05715, Third Dept 8-9-18

CRIMINAL LAW (DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/APPEALS (CRIMINAL LAW, DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/DNA (CRIMINAL LAW, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/FRYE HEARING (CRIMINAL LAW, DNA, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/TRUEALLELE CASEWORK SYSTEM (CRIMINAL LAW, DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/INEFFECTIVE ASSISTANCE (DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/APPEALS (CRIMINAL LAW, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))

COURT SHOULD HAVE INQUIRED FURTHER WHEN DEFENDANT INDICATED IN HIS PLEA COLLOQUY THAT HE ACTED IN SELF-DEFENSE, CONVICTION BY GUILTY PLEA REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction by guilty plea, determined that the court should have inquired further when defendant indicated in the plea colloquy that he acted in self-defense:

The defendant pleaded guilty to assault in the second degree and assault in the third degree. During the plea proceeding, however, he insisted that the complainant had pulled a gun on him, and that he had attacked the complainant in self-defense. The County Court did not ask the defendant any questions about a possible justification defense.

When a “defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea,” the court has a duty to inquire further in order to make sure that the defendant understands the nature of the charge and that the plea has been intelligently entered… . This includes situations where the defendant’s allocution suggests the existence of a possible defense … . Where the court failed in its duty to inquire further, a defendant may raise a claim regarding the validity of the plea even without having moved to withdraw the plea … .

In this case, as the defendant contends and the People correctly concede, the County Court’s failure to inquire into the validity of the plea after the defendant’s allocution raised the possibility of a justification defense requires reversal of the judgment of conviction … . People v Williams, 2018 NY Slip Op 05711, Second Dept 8-8-18

CRIMINAL LAW (COURT SHOULD HAVE INQUIRED FURTHER WHEN DEFENDANT INDICATED IN HIS PLEA COLLOQUY THAT HE ACTED IN SELF-DEFENSE, CONVICTION BY GUILTY PLEA REVERSED (SECOND DEPT))/PLEA COLLOQUY  (COURT SHOULD HAVE INQUIRED FURTHER WHEN DEFENDANT INDICATED IN HIS PLEA COLLOQUY THAT HE ACTED IN SELF-DEFENSE, CONVICTION BY GUILTY PLEA REVERSED (SECOND DEPT))/GUILTY PLEA (COURT SHOULD HAVE INQUIRED FURTHER WHEN DEFENDANT INDICATED IN HIS PLEA COLLOQUY THAT HE ACTED IN SELF-DEFENSE, CONVICTION BY GUILTY PLEA REVERSED (SECOND DEPT))

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CONVICTION OF ENDANGERING THE WELFARE OF A CHILD SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE ACQUITTALS ON THE REMAINING 27 COUNTS OF CRIMINAL SEXUAL ACT, COURT CANNOT CONSIDER DEFENDANT’S ALTERNATIVE ARGUMENT FOR AFFIRMANCE ON AN APPEAL BROUGHT BY THE PEOPLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s conviction of endangering the welfare of a child should not have been set aside based upon his acquittal on all 27 counts of criminal sexual act involving a 10-year-old child. Because the appeal was brought by the People, the court was statutorily prohibited from considering defendant’s argument that the indictment was jurisdictionally defective:

The Court of Appeals has held that a factual inconsistency in the verdict does not render “the record evidence legally insufficient to support the conviction” … . “Where a jury verdict is not repugnant, it is imprudent to speculate concerning the factual determinations that underlay the verdict because what might appear to be an irrational verdict may actually constitute a jury’s permissible exercise of mercy or leniency” … . Thus, in this case, the acquittals of the criminal sexual act and sexual abuse counts did not render the evidence legally insufficient to support the conviction of endangering the welfare of a child … .

Although the Court of Appeals has noted that reviewing courts may consider jury acquittals “in some instances on legal issues such as the sufficiency of the evidence or errors in the admissibility of evidence” … , such consideration is appropriate to the extent that the acquittal provides information about the basis of, or the theory underlying, the jury’s finding of guilt on another count … . With this understanding of the basis or theory of the conviction on that other count, the court may then determine whether there was legally sufficient evidence to support that conviction … . That determination is based on an independent review of the evidence presented at trial, and is not controlled by the jury’s acquittal on the other charge … . People v Sturges, 2018 NY Slip Op 05703, Second Dept 8-8-18

CRIMINAL LAW (CONVICTION OF ENDANGERING THE WELFARE OF A CHILD SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE ACQUITTALS ON THE REMAINING 27 COUNTS OF CRIMINAL SEXUAL ACT, COURT CANNOT CONSIDER DEFENDANT’S ALTERNATIVE ARGUMENT FOR AFFIRMANCE ON AN APPEAL BROUGHT BY THE PEOPLE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, CONVICTION OF ENDANGERING THE WELFARE OF A CHILD SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE ACQUITTALS ON THE REMAINING 27 COUNTS OF CRIMINAL SEXUAL ACT, COURT CANNOT CONSIDER DEFENDANT’S ALTERNATIVE ARGUMENT FOR AFFIRMANCE ON AN APPEAL BROUGHT BY THE PEOPLE (SECOND DEPT))/ENDANGERING THE WELFARE OF A CHILD (CONVICTION OF ENDANGERING THE WELFARE OF A CHILD SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE ACQUITTALS ON THE REMAINING 27 COUNTS OF CRIMINAL SEXUAL ACT, COURT CANNOT CONSIDER DEFENDANT’S ALTERNATIVE ARGUMENT FOR AFFIRMANCE ON AN APPEAL BROUGHT BY THE PEOPLE (SECOND DEPT))/APPEALS (CRIMINAL LAW, PEOPLE’S APPEAL, COURT CANNOT CONSIDER DEFENDANT’S ALTERNATIVE ARGUMENT FOR AFFIRMANCE ON AN APPEAL BROUGHT BY THE PEOPLE (SECOND DEPT)

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EVIDENCE DEFENDANT HAD PREVIOUSLY BEEN CONVICTED OF STEALING A CAR SHOULD NOT HAVE BEEN ADMITTED TO SHOW KNOWLEDGE AND INTENT IN THIS CAR THEFT CASE, KNOWLEDGE AND INTENT CAN BE INFERRED FROM THE ACT, ERROR HARMLESS HOWEVER (SECOND DEPT).

The Second Department noted that evidence of a prior conviction of criminal possession of stolen property (a car) should not have been admitted as Molineux evidence to show knowledge and intent in this prosecution for the same genre of offense. Knowledge and intent can be inferred from possession of the car, which was taken by force. There error was deemed harmless however:

The Supreme Court should not have admitted, over objection, evidence of the defendant’s 2009 conviction for criminal possession of stolen property, including the underlying fact that the stolen property was a motor vehicle, to demonstrate knowledge and intent to steal the vehicle … . Here, the defendant’s knowledge and intent could easily be inferred from his possession of the subject vehicle, which was procured by force. “Generally, [e]vidence of prior criminal acts to prove intent will often be unnecessary, and therefore should be precluded even though marginally relevant, where intent may be easily inferred from the commission of the act itself'” … . However, as there was overwhelming evidence of the defendant’s guilt, which included his statements to law enforcement authorities and the fact that he and his companion assumed possession of the vehicle, and no significant probability that the error contributed to the defendant’s conviction, the error was harmless … . People v Sands, 2018 NY Slip Op 05701, Second Dept 8-8-18

CRIMINAL LAW (EVIDENCE, MOLINEUX, EVIDENCE DEFENDANT HAD PREVIOUSLY BEEN CONVICTED OF STEALING A CAR SHOULD NOT HAVE BEEN ADMITTED TO SHOW KNOWLEDGE AND INTENT IN THIS CAR THEFT CASE, KNOWLEDGE AND INTENT CAN BE INFERRED FROM THE ACT, ERROR HARMLESS HOWEVER (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, MOLINEUX,  EVIDENCE DEFENDANT HAD PREVIOUSLY BEEN CONVICTED OF STEALING A CAR SHOULD NOT HAVE BEEN ADMITTED TO SHOW KNOWLEDGE AND INTENT IN THIS CAR THEFT CASE, KNOWLEDGE AND INTENT CAN BE INFERRED FROM THE ACT, ERROR HARMLESS HOWEVER (SECOND DEPT))/MOLINEUX (CRIMINAL LAW, EVIDENCE DEFENDANT HAD PREVIOUSLY BEEN CONVICTED OF STEALING A CAR SHOULD NOT HAVE BEEN ADMITTED TO SHOW KNOWLEDGE AND INTENT IN THIS CAR THEFT CASE, KNOWLEDGE AND INTENT CAN BE INFERRED FROM THE ACT, ERROR HARMLESS HOWEVER (SECOND DEPT))

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NO PRIVATE RIGHT OF ACTION FOR NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION AGAINST THE BOARD OF PAROLE (THIRD DEPT).

The Third Department determined the claimant, an inmate, did not have a private right of action for negligent performance of a governmental function against the Board of Parole. Claimant alleged the board did not comply with the Executive Law by promulgating certain written procedures for assessing an inmate’s eligibility for parole:

Inasmuch as Executive Law article 12-B, which sets forth the procedures governing parole, does not expressly authorize a private right of action for claimant to recover civil damages for a violation of its provisions, recovery may only be obtained if a private right of action may be implied … . “One may be fairly implied when (1) [claimant] is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme” … . “If one of these prerequisites is lacking, the claim will fail” … .

We agree with the Court of Claims that a private action may not be fairly implied here. The Legislature provides recourse under CPLR article 78 for inmates to address perceived instances where the Board did not satisfy its statutory obligations in making parole release determinations… . As the Legislature has established procedures for review of parole release decisions, “it is fair to infer that had it intended to create a private right of action . . ., it would have specifically done so” … . Accordingly, permitting a private action here would be inconsistent with the legislative scheme … . Franza v State of New York, 2018 NY Slip Op 05641, Third Dept 8-2-18

CRIMINAL LAW  NO PRIVATE RIGHT OF ACTION FOR NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION AGAINST THE BOARD OF PAROLE (THIRD DEPT))/ADMINISTRATIVE LAW (CRIMINAL LAW, PAROLE, NO PRIVATE RIGHT OF ACTION FOR NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION AGAINST THE BOARD OF PAROLE (THIRD DEPT))/COURT OF CLAIMS (PAROLE, NO PRIVATE RIGHT OF ACTION FOR NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION AGAINST THE BOARD OF PAROLE (THIRD DEPT))/PAROLE (NO PRIVATE RIGHT OF ACTION FOR NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION AGAINST THE BOARD OF PAROLE (THIRD DEPT))/NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION  NO PRIVATE RIGHT OF ACTION FOR NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION AGAINST THE BOARD OF PAROLE (THIRD DEPT))

POSSESSION OF A WEAPON IN THE THIRD DEGREE IS NOT AN ARMED FELONY, DEFENDANT THEREFORE WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS WITHOUT ANY FINDING OF MITIGATION (SECOND DEPT).

The Second Department determined the sentencing court erred when it found that defendant was not eligible for youthful offender status. Criminal possession of a weapon in the third degree is not an armed felony:

The Supreme Court denied the defendant’s application for youthful offender status based upon its mistaken belief that he had been convicted of an armed felony, which required the court to find either mitigating circumstances that bear directly upon the manner in which the crime was committed or that the defendant was only a minor participant in the crime … . The People correctly concede that the court erred in finding that the defendant had been convicted of an armed felony, since criminal possession of a weapon in the third degree pursuant to Penal Law 265.02(7) does not require proof that the firearm was loaded… . Thus, the defendant was eligible for youthful offender treatment without any finding of mitigation (see CPL 720.10[2]). Accordingly, we remit the matter to the Supreme Court …, for a new determination of the defendant’s application for youthful offender status and resentencing thereafter. People v Loney, 2018 NY Slip Op 05606, Second Dept 8-1-18

CRIMINAL LAW (YOUTHFUL OFFENDER, POSSESSION OF A WEAPON IN THE THIRD DEGREE IS NOT AN ARMED FELONY, DEFENDANT THEREFORE WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS WITHOUT ANY FINDING OF MITIGATION (SECOND DEPT))/YOUTHFUL OFFENDER (POSSESSION OF A WEAPON IN THE THIRD DEGREE IS NOT AN ARMED FELONY, DEFENDANT THEREFORE WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS WITHOUT ANY FINDING OF MITIGATION (SECOND DEPT))/ARMED FELONY (YOUTHFUL OFFENDER, POSSESSION OF A WEAPON IN THE THIRD DEGREE IS NOT AN ARMED FELONY, DEFENDANT THEREFORE WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS WITHOUT ANY FINDING OF MITIGATION (SECOND DEPT))/CRIMINAL POSSESSION OF A WEAPON IN THE THIRD DEGREE  (YOUTHFUL OFFENDER, POSSESSION OF A WEAPON IN THE THIRD DEGREE IS NOT AN ARMED FELONY, DEFENDANT THEREFORE WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS WITHOUT ANY FINDING OF MITIGATION (SECOND DEPT))

NO EVIDENCE POSSESSION OF A WEAPON AND SHOOTING THE VICTIM WERE SEPARATE AND DISTINCT, SENTENCES SHOULD HAVE BEEN CONCURRENT (SECOND DEPT).

The Second Department determined the criminal possession of a weapon in the second degree was separate and distinct from the shooting of the victim. Therefore the sentences for possession of a weapon and murder should not run consecutively:

… [T]he sentence imposed on the conviction of criminal possession of a weapon in the second degree should not run consecutively to the sentence imposed on the conviction of murder in the second degree. “No evidence was adduced at trial to establish that the defendant’s possession of a gun was separate and distinct from his shooting of the victim” … . People v Ross, 2018 NY Slip Op 05610, Second Dept 8-1-18

CRIMINAL LAW (SENTENCING, NO EVIDENCE POSSESSION OF A WEAPON AND SHOOTING THE VICTIM WERE SEPARATE AND DISTINCT, SENTENCES SHOULD HAVE BEEN CONCURRENT (SECOND DEPT))/SENTENCING (NO EVIDENCE POSSESSION OF A WEAPON AND SHOOTING THE VICTIM WERE SEPARATE AND DISTINCT, SENTENCES SHOULD HAVE BEEN CONCURRENT (SECOND DEPT))/CRIMINAL POSSESSION OF A WEAPON  (SENTENCING, NO EVIDENCE POSSESSION OF A WEAPON AND SHOOTING THE VICTIM WERE SEPARATE AND DISTINCT, SENTENCES SHOULD HAVE BEEN CONCURRENT (SECOND DEPT))

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(HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY THE PERSON DEPICTED IN A VIDEO WAS THE DEFENDANT (SECOND DEPT).

The Second Department determined it was (harmless) error to allow a detective to identify the person depicted in a video as the defendant:

Generally, “lay witnesses must testify only to the facts and not to their opinions and conclusions drawn from the facts,” as it is the jury’s province “to draw the appropriate inferences arising from the facts” … . While, under the proper circumstances, the court has the discretion to allow a lay witness to express his or her opinion that an individual depicted in a surveillance video is the defendant … , here, there was no basis for concluding that the police detective was more likely than the jury to correctly determine whether the defendant was depicted in the video …. The detective had arrested the defendant more than two weeks after the crime, and, at that time, briefly interviewed the defendant. “There was no evidence that [the] defendant had changed his appearance prior to trial, and the record is devoid of any other circumstances suggesting that the jury—which had ample opportunity to view [the] defendant—would be any less able than the detective to determine whether [the] defendant was, in fact, the individual depicted in the video” … . People v Reddick, 2018 NY Slip Op 05608, Second Dept 8-1-18

CRIMINAL LAW (IDENTIFICATION, (HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY THE PERSON DEPICTED IN A VIDEO WAS THE DEFENDANT (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY THE PERSON DEPICTED IN A VIDEO WAS THE DEFENDANT (SECOND DEPT))/VIDEO (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY THE PERSON DEPICTED IN A VIDEO WAS THE DEFENDANT (SECOND DEPT))/IDENTIFICATION (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY THE PERSON DEPICTED IN A VIDEO WAS THE DEFENDANT (SECOND DEPT))

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DEFENDANT NOT GIVEN THE OPPORTUNITY TO EXPLAIN HIS REQUEST TO WITHDRAW HIS GUILTY PLEA, DEFENSE COUNSEL INDICATED THERE WAS NO REASON FOR THE WITHDRAWAL, MATTER REMITTED FOR CONSIDERATION OF THE REQUEST WITH NEW COUNSEL (SECOND DEPT).

The Second Department determined defendant should have been given an opportunity to explain the reasons for his request to withdraw his plea and defense counsel should not have indicated he did not believe there was a basis for the request. Matter was remitted for consideration of the request with new counsel:

“The nature and extent of the fact-finding procedures prerequisite to the disposition of [motions to withdraw a plea of guilty] rest largely in the discretion of the Judge to whom the motion is made” … . While in “rare instance[s]” a defendant will be entitled to an evidentiary hearing, often “a limited interrogation by the court will suffice” … , and when a motion “is patently insufficient on its face, a court may simply deny the motion without making any inquiry” … . Nevertheless, “[t]he defendant should be afforded reasonable opportunity to present his contentions and the court should [*2]be enabled to make an informed determination” … .

Moreover, “a defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea” … . Counsel “takes a position adverse to his client,” depriving him or her of meaningful representation, “when stating that the defendant’s motion lacks merit” … . People v Caputo, 2018 NY Slip Op 05481, Second Dept 7-25-18

CRIMINAL LAW (DEFENDANT NOT GIVEN THE OPPORTUNITY TO EXPLAIN HIS REQUEST TO WITHDRAW HIS GUILTY PLEA, DEFENSE COUNSEL INDICATED THERE WAS NO REASON FOR THE WITHDRAWAL, MATTER REMITTED FOR CONSIDERATION OF THE REQUEST WITH NEW COUNSEL (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENDANT NOT GIVEN THE OPPORTUNITY TO EXPLAIN HIS REQUEST TO WITHDRAW HIS GUILTY PLEA, DEFENSE COUNSEL INDICATED THERE WAS NO REASON FOR THE WITHDRAWAL, MATTER REMITTED FOR CONSIDERATION OF THE REQUEST WITH NEW COUNSEL (SECOND DEPT))/PLEA, WITHDRAWAL OF  (DEFENDANT NOT GIVEN THE OPPORTUNITY TO EXPLAIN HIS REQUEST TO WITHDRAW HIS GUILTY PLEA, DEFENSE COUNSEL INDICATED THERE WAS NO REASON FOR THE WITHDRAWAL, MATTER REMITTED FOR CONSIDERATION OF THE REQUEST WITH NEW COUNSEL (SECOND DEPT))

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