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THE COURT’S FAILURE TO SENTENCE DEFENDANT IN ACCORDANCE WITH THE PLEA AGREEMENT ON ONE INDICTMENT REQUIRED THAT THE DEFENDANT BE GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEAS TO THAT INDICTMENT AND ANOTHER INDICTMENT FROM WHICH NO APPEAL HAD BEEN TAKEN (SECOND DEPT).

The Second Department determined the failure to resentence defendant in accordance with the plea agreement required that the defendant be given the opportunity to withdraw his pleas, not only to the charges in indictment on which he was resentenced, but also the charges in prior indictment from which the defendant had not appealed:

Here, the defendant contends that both of the underlying judgments should be reversed and the underlying guilty pleas vacated on the ground that the County Court deviated from the terms of the plea agreement by imposing an aggregate term of seven years’ imprisonment instead of the aggregate term of five years’ imprisonment that it had promised the defendant when he agreed to plead guilty. To the extent that the defendant seeks vacatur of the underlying pleas and reversal of the underlying judgments due to an alleged violation of the plea agreement, such a contention is not reviewable on this appeal since the defendant has only appealed from the resentence … . …

… [T]he County Court erred in resentencing the defendant to a period of postrelease supervision on the conviction of criminal sale of a firearm in the third degree that exceeded the period of postrelease supervision that had been promised to the defendant in connection with the plea agreement, without first affording the defendant the opportunity to withdraw his plea of guilty to that count … . Furthermore, inasmuch as the defendant’s plea of guilty on [the prior indictment], and his plea of guilty to the charge of criminal sale of a controlled substance in the third degree under [the second indictment] were induced by the promise that the sentences on the two indictments would all run concurrently, the defendant must be afforded the opportunity to withdraw his pleas of guilty under both of the indictments, for all three convictions … . People v Robinson, 2018 NY Slip Op 02490, Second Dept 4-11-18

​CRIMINAL LAW (SENTENCING, THE COURT’S FAILURE TO SENTENCE DEFENDANT IN ACCORDANCE WITH THE PLEA AGREEMENT ON ONE INDICTMENT REQUIRED THAT THE DEFENDANT BE GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEAS TO THAT INDICTMENT AND ANOTHER INDICTMENT FROM WHICH NO APPEAL HAD BEEN TAKEN (SECOND DEPT))/PLEA AGREEMENTS  (SENTENCING, THE COURT’S FAILURE TO SENTENCE DEFENDANT IN ACCORDANCE WITH THE PLEA AGREEMENT ON ONE INDICTMENT REQUIRED THAT THE DEFENDANT BE GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEAS TO THAT INDICTMENT AND ANOTHER INDICTMENT FROM WHICH NO APPEAL HAD BEEN TAKEN (SECOND DEPT))/SENTENCING (PLEA AGREEMENTS,  (SENTENCING, THE COURT’S FAILURE TO SENTENCE DEFENDANT IN ACCORDANCE WITH THE PLEA AGREEMENT ON ONE INDICTMENT REQUIRED THAT THE DEFENDANT BE GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEAS TO THAT INDICTMENT AND ANOTHER INDICTMENT FROM WHICH NO APPEAL HAD BEEN TAKEN (SECOND DEPT))/GUILTY PLEAS, WITHDRAWAL OF  (THE COURT’S FAILURE TO SENTENCE DEFENDANT IN ACCORDANCE WITH THE PLEA AGREEMENT ON ONE INDICTMENT REQUIRED THAT THE DEFENDANT BE GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEAS TO THAT INDICTMENT AND ANOTHER INDICTMENT FROM WHICH NO APPEAL HAD BEEN TAKEN (SECOND DEPT))

DEFENDANT WAS ELIGIBLE FOR CONDITIONAL SEALING OF THE RECORDS OF DRUG-RELATED CONVICTIONS PURSUANT TO CPL 160.58 NOTWITHSTANDING THAT HE WAS ALSO CONVICTED OF DWAI WHICH IS NOT COVERED BY THE SEALING STATUTE, THE SHOCK INCARCERATION PROGRAM WHICH DEFENDANT COMPLETED MET THE JUDICIAL DIVERSION REQUIREMENTS OF THE SEALING STATUTE (SECOND DEPT).

The Second Department, reversing County Court, determined that defendant was eligible for conditional sealing of the record of his drug-related convictions pursuant to Criminal Procedure Law (CPL) 160.58. The fact that defendant was also convicted of Driving While Ability Impaired (DWAI), which is not an offense covered by CPL 160.58, did not preclude the sealing (as County Court had held). The Second Department rejected the argument that the shock incarceration program defendant completed was not the type of judicial diversion program contemplated by CPL 160.58:

We conclude, first, that the County Court erroneously interpreted CPL 160.58 as prohibiting sealing in light of the DWAI conviction. CPL 160.58 does not contain a “clearly expressed” limitation on a court’s authority to order sealing in cases in which a defendant pleads guilty to an accusatory instrument that contains an offense that does not qualify for sealing. Indeed, the fact that the statute refers to the sealing of an “offense” suggests that discrete offenses may be sealed even if an accusatory instrument to which a defendant pleaded guilty contained other offenses. Had the Legislature intended to limit the court’s authority as the County Court found, it could easily have specified that sealing was confined to cases in which a defendant was charged only with offenses defined in articles 220 and 221 of the Penal Law or a specified offense defined in CPL 410.91. Particularly in light of the expansive approach taken by the Court of Appeals in interpreting the DLRA [Drug Law Reform Act], the omission of a limitation on a court’s authority to seal qualifying drug offenses when coupled in an accusatory instrument with nonqualifying offenses should be interpreted as intentional … .

We further conclude that, contrary to the People’s contention, by successfully completing court-ordered Shock incarceration and further treatment during his period of PRS, the defendant successfully completed a “judicially sanctioned drug treatment program of similar duration, requirements and level of supervision” as judicial diversion and drug treatment alternative to prison. People v Parker, 2018 NY Slip Op 02487, Second Dept 4-11-18

​CRIMINAL LAW (SEALING OF RECORDS, DEFENDANT WAS ELIGIBLE FOR CONDITIONAL SEALING OF THE RECORDS OF DRUG-RELATED CONVICTIONS PURSUANT TO CPL 160.58 NOTWITHSTANDING THAT HE WAS ALSO CONVICTED OF DWAI WHICH IS NOT COVERED BY THE SEALING STATUTE, THE SHOCK INCARCERATION PROGRAM WHICH DEFENDANT COMPLETED MET THE JUDICIAL DIVERSION REQUIREMENTS OF THE SEALING STATUTE (SECOND DEPT))/CRIMINAL PROCEDURE LAW 160.58 (SEALING OF RECORDS, DEFENDANT WAS ELIGIBLE FOR CONDITIONAL SEALING OF THE RECORDS OF DRUG-RELATED CONVICTIONS PURSUANT TO CPL 160.58 NOTWITHSTANDING THAT HE WAS ALSO CONVICTED OF DWAI WHICH IS NOT COVERED BY THE SEALING STATUTE, THE SHOCK INCARCERATION PROGRAM WHICH DEFENDANT COMPLETED MET THE JUDICIAL DIVERSION REQUIREMENTS OF THE SEALING STATUTE (SECOND DEPT))/SEALING (CRIMINAL RECORDS, DEFENDANT WAS ELIGIBLE FOR CONDITIONAL SEALING OF THE RECORDS OF DRUG-RELATED CONVICTIONS PURSUANT TO CPL 160.58 NOTWITHSTANDING THAT HE WAS ALSO CONVICTED OF DWAI WHICH IS NOT COVERED BY THE SEALING STATUTE, THE SHOCK INCARCERATION PROGRAM WHICH DEFENDANT COMPLETED MET THE JUDICIAL DIVERSION REQUIREMENTS OF THE SEALING STATUTE (SECOND DEPT))/SHOCK INCARCERATION PROGRAM (SEALING OF CRIMINAL RECORDS, DEFENDANT WAS ELIGIBLE FOR CONDITIONAL SEALING OF THE RECORDS OF DRUG-RELATED CONVICTIONS PURSUANT TO CPL 160.58 NOTWITHSTANDING THAT HE WAS ALSO CONVICTED OF DWAI WHICH IS NOT COVERED BY THE SEALING STATUTE, THE SHOCK INCARCERATION PROGRAM WHICH DEFENDANT COMPLETED MET THE JUDICIAL DIVERSION REQUIREMENTS OF THE SEALING STATUTE (SECOND DEPT))/JUDICIAL DIVERSION PROGRAM (SEALING OF CRIMINAL RECORDS, SHOCK INCARCERATION PROGRAM, DEFENDANT WAS ELIGIBLE FOR CONDITIONAL SEALING OF THE RECORDS OF DRUG-RELATED CONVICTIONS PURSUANT TO CPL 160.58 NOTWITHSTANDING THAT HE WAS ALSO CONVICTED OF DWAI WHICH IS NOT COVERED BY THE SEALING STATUTE, THE SHOCK INCARCERATION PROGRAM WHICH DEFENDANT COMPLETED MET THE JUDICIAL DIVERSION REQUIREMENTS OF THE SEALING STATUTE (SECOND DEPT))

THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, ERROR HARMLESS HOWEVER (SECOND DEPT).

The Second Department determined Supreme Court should have instructed the jury on cross-racial identification, but further determined the error was harmless:

In People v Boone (30 NY3d 521, 535), the Court of Appeals held that where, as here, “a witness’s identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give, upon request, during final instructions, a jury charge on the cross-race effect, instructing (1) that the jury should consider whether there is a difference in race between the defendant and the witness who identified the defendant, and (2) that, if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race and (b) whether the difference in race affected the accuracy of the witness’s identification.”

… [U]nder the circumstances of the present case, the Supreme Court’s failure to give a cross-racial identification charge constituted harmless error. The defendant identified himself as the individual shown in a surveillance video taken inside a deli adjacent to the smoke shop approximately 40 minutes before the robbery. A surveillance video taken outside the deli at that time showed the individual on the sidewalk walking past the smoke shop and entering the deli. Additionally, the surveillance video taken outside the deli showed the same individual entering and exiting the smoke shop at the exact time of the robbery. Immediately after the crime, the complainant gave a very precise and detailed description of the defendant to a detective, which included a unique identifying characteristic, namely, a brown birthmark on the white of the defendant’s eye. During the arrest process of the defendant, the arresting detective immediately observed the distinctive marking on the defendant’s eye. Under the circumstances, the error in failing to administer the charge on cross-racial identification was harmless, as there was overwhelming evidence of the defendant’s guilt, and no significant probability that the defendant would have been acquitted if not for the error … . People v Bradley, 2018 NY Slip Op 02481, Second Dept 4-11-18

​CRIMINAL LAW (JURY INSTRUCTIONS, THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, ERROR HARMLESS HOWEVER (SECOND DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, ERROR HARMLESS HOWEVER (SECOND DEPT))/IDENTIFICATION (CRIMINAL LAW, JURY INSTRUCTIONS, THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, ERROR HARMLESS HOWEVER (SECOND DEPT))/CROSS-RACIAL IDENTIFICATION (CRIMINAL LAW, JURY INSTRUCTIONS, THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, ERROR HARMLESS HOWEVER (SECOND DEPT))

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR DECLINING THE COURT’S OFFER TO INSTRUCT THE JURY IT COULD DEVIATE FROM THE ACQUIT-FIRST RULE AFTER THE JURY INDICATED IT HAD DEADLOCKED ON THE TOP COUNT (FIRST DEPT).

The First Department determined defense counsel was not ineffective for turning down the court’s offer to instruct the jury that it need not adhere to the “acquit-first” rule. The jury had sent out two notes indicating deadlock on the top count (murder):

Defendant also argues that counsel was ineffective for failing to accept the court’s offer, prompted by the prosecutor’s suggestion, to deviate from the “acquit-first” rule … , and allow the jury, which had submitted two deadlock notes as to the top charge of murder in the second degree, to consider the lesser included count of manslaughter in the first degree without first reaching a not guilty verdict on the higher charge. We need not decide whether, as the People argue, counsel’s choice categorically cannot be deemed professionally unreasonable because the procedure the court made available was clearly contrary to New York law. Rather, we find that the choice counsel faced was quintessentially a judgment call, involving a significant measure of instinct and intuition, and therefore that the course chosen cannot be deemed to lack any objectively reasonable strategic basis. For example, counsel could reasonably have believed, as the court indicated it did, that there was some possibility of acquittal on all counts if the course of deliberations was not interrupted by an instruction authorizing departure from the acquit-first rule. In any event, defendant has likewise failed to establish ineffective assistance of counsel under either the state or federal standard. People v Tineo-Santos, 2018 NY Slip Op 02425, First Dept 4-10-18

​CRIMINAL LAW (ATTORNEYS, ACQUIT FIRST RULE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR DECLINING THE COURT’S OFFER TO INSTRUCT THE JURY IT COULD DEVIATE FROM THE ACQUIT-FIRST RULE AFTER THE JURY INDICATED IT HAD DEADLOCKED ON THE TOP COUNT (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, ACQUIT FIRST RULE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR DECLINING THE COURT’S OFFER TO INSTRUCT THE JURY IT COULD DEVIATE FROM THE ACQUIT-FIRST RULE AFTER THE JURY INDICATED IT HAD DEADLOCKED ON THE TOP COUNT (FIRST DEPT))/INEFFECTIVE ASSISTANCE  (ACQUIT FIRST RULE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR DECLINING THE COURT’S OFFER TO INSTRUCT THE JURY IT COULD DEVIATE FROM THE ACQUIT-FIRST RULE AFTER THE JURY INDICATED IT HAD DEADLOCKED ON THE TOP COUNT (FIRST DEPT))/ACQUIT FIRST RULE (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR DECLINING THE COURT’S OFFER TO INSTRUCT THE JURY IT COULD DEVIATE FROM THE ACQUIT-FIRST RULE AFTER THE JURY INDICATED IT HAD DEADLOCKED ON THE TOP COUNT (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, ACQUIT FIRST RULE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR DECLINING THE COURT’S OFFER TO INSTRUCT THE JURY IT COULD DEVIATE FROM THE ACQUIT-FIRST RULE AFTER THE JURY INDICATED IT HAD DEADLOCKED ON THE TOP COUNT (FIRST DEPT))

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FAILURE TO INSTRUCT THE JURY THAT WITNESSES WERE ACCOMPLICES AS A MATTER OF LAW REQUIRING CORROBORATION OF THEIR TESTIMONY WAS REVERSIBLE ERROR, DEFENSE COUNSEL’S FAILURE TO REQUEST THE INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE, ISSUE REACHED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, reversing defendant’s conviction in the interest of justice, determined the failure to instruct the jury witnesses were accomplices as a matter of law requiring corroboration of their testimony was reversible error, and defense counsel’s failure to request the instruction constituted ineffective assistance:

We conclude that the lack of an accomplice corroboration charge (see CPL 60.22) warrants a new trial, and we reach this unpreserved issue in the interest of justice. The People’s case against defendant was based almost entirely on the testimony of three witnesses, each of whom was either an accomplice as a matter of law or a person who could reasonably be viewed by the jury as an accomplice as a matter of fact… . While there was some nonaccomplice evidence, it was far from extensive … . In fact, one of the only other witnesses undermined the accomplice testimony by establishing that defendant was not initially identified as a perpetrator of the underlying assault.

Moreover, we conclude that counsel’s admittedly nonstrategic failure to request the instruction constituted ineffective assistance under all the circumstances of the case … . People v Douglas, 2018 NY Slip Op 02397, First Dept 4-5-18

​CRIMINAL LAW (FAILURE TO INSTRUCT THE JURY THAT WITNESSES WERE ACCOMPLICES AS A MATTER OF LAW REQUIRING CORROBORATION OF THEIR TESTIMONY WAS REVERSIBLE ERROR, DEFENSE COUNSEL’S FAILURE TO REQUEST THE INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE, ISSUE REACHED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, ACCOMPLICES, FAILURE TO INSTRUCT THE JURY THAT WITNESSES WERE ACCOMPLICES AS A MATTER OF LAW REQUIRING CORROBORATION OF THEIR TESTIMONY WAS REVERSIBLE ERROR, DEFENSE COUNSEL’S FAILURE TO REQUEST THE INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE, ISSUE REACHED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT))/APPEALS (CRIMINAL LAW, INTEREST OF JUSTICE, FAILURE TO INSTRUCT THE JURY THAT WITNESSES WERE ACCOMPLICES AS A MATTER OF LAW REQUIRING CORROBORATION OF THEIR TESTIMONY WAS REVERSIBLE ERROR, DEFENSE COUNSEL’S FAILURE TO REQUEST THE INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE, ISSUE REACHED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, FAILURE TO INSTRUCT THE JURY THAT WITNESSES WERE ACCOMPLICES AS A MATTER OF LAW REQUIRING CORROBORATION OF THEIR TESTIMONY WAS REVERSIBLE ERROR, DEFENSE COUNSEL’S FAILURE TO REQUEST THE INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE, ISSUE REACHED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT))/INEFFECTIVE ASSISTANCE (FAILURE TO INSTRUCT THE JURY THAT WITNESSES WERE ACCOMPLICES AS A MATTER OF LAW REQUIRING CORROBORATION OF THEIR TESTIMONY WAS REVERSIBLE ERROR, DEFENSE COUNSEL’S FAILURE TO REQUEST THE INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE, ISSUE REACHED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT))/ACCOMPLICES (CRIMINAL LAW, EVIDENCE, FAILURE TO INSTRUCT THE JURY THAT WITNESSES WERE ACCOMPLICES AS A MATTER OF LAW REQUIRING CORROBORATION OF THEIR TESTIMONY WAS REVERSIBLE ERROR, DEFENSE COUNSEL’S FAILURE TO REQUEST THE INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE, ISSUE REACHED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, FAILURE TO INSTRUCT THE JURY THAT WITNESSES WERE ACCOMPLICES AS A MATTER OF LAW REQUIRING CORROBORATION OF THEIR TESTIMONY WAS REVERSIBLE ERROR, DEFENSE COUNSEL’S FAILURE TO REQUEST THE INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE, ISSUE REACHED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT))/CORROBORATION (CRIMINAL LAW, ACCOMPLICES, FAILURE TO INSTRUCT THE JURY THAT WITNESSES WERE ACCOMPLICES AS A MATTER OF LAW REQUIRING CORROBORATION OF THEIR TESTIMONY WAS REVERSIBLE ERROR, DEFENSE COUNSEL’S FAILURE TO REQUEST THE INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE, ISSUE REACHED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT))

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FAILURE TO INSTRUCT THE JURY THAT A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW REQUIRED REVERSAL (THIRD DEPT).

The Third Department, reversing defendant’s conviction in the interest of justice, determined the jury should have been instructed that a witness, Dozier, was an accomplice as a matter of law and his testimony therefore required corroboration:

… “[T]o be an accomplice for corroboration purposes, the witness must somehow be criminally implicated and potentially subject to prosecution for the conduct or factual transaction related to the crimes for which the defendant is on trial”… .

Here, Dozier’s unimpeached testimony established that he was at the second-floor apartment on the day in question to purchase crack cocaine … . He was arrested and charged, along with defendant and the remaining codefendants, with crimes stemming from his presence in the apartment on that date and thereafter pleaded guilty to criminal possession of a controlled substance in the third degree in exchange for his truthful testimony against defendant. Because Dozier “could have been (and was) charged with a crime ‘based upon the same or some of the same facts or conduct’ upon which the charges against defendant were based,” he was an accomplice as a matter of law … . County Court was therefore required to instruct the jury that Dozier was an accomplice as a matter of law and that defendant could not be convicted on Dozier’s testimony absent corroborative evidence (seeCPL 60.22 [1]). “Failure to so charge the jury was necessarily harmful error,” given that the case against defendant rested substantially — if not exclusively — upon the testimony of Dozier … . People v Pettus, 2018 NY Slip Op 02366, Third Dept 4-5-18

​CRIMINAL LAW (ACCOMPLICE, FAILURE TO INSTRUCT THE JURY THAT A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW REQUIRED REVERSAL (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, ACCOMPLICE, FAILURE TO INSTRUCT THE JURY THAT A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW REQUIRED REVERSAL (THIRD DEPT))/APPEALS (CRIMINAL LAW, INTEREST OF JUSTICE REVERSAL, FAILURE TO INSTRUCT THE JURY THAT A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW REQUIRED REVERSAL (THIRD DEPT))/INTEREST OF JUSTICE (APPEALS, CRIMINAL LAW, FAILURE TO INSTRUCT THE JURY THAT A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW REQUIRED REVERSAL (THIRD DEPT))/ACCOMPLICES (CRIMINAL LAW,  FAILURE TO INSTRUCT THE JURY THAT A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW REQUIRED REVERSAL (THIRD DEPT))/JURY INSTRUCTIONS, (CRIMINAL LAW, ACCOMPLICE, FAILURE TO INSTRUCT THE JURY THAT A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW REQUIRED REVERSAL (THIRD DEPT))/CORROBORATION (CRIMINAL LAW, ACCOMPLICES, FAILURE TO INSTRUCT THE JURY THAT A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW REQUIRED REVERSAL (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, ACCOMPLICE, FAILURE TO INSTRUCT THE JURY THAT A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW REQUIRED REVERSAL (THIRD DEPT))

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REVERSIBLE ERROR TO REFUSE TO ALLOW IN EVIDENCE THE DETECTIVE’S RECORDED STATEMENTS MADE TO DEFENDANT BEFORE THE MIRANDA WARNINGS AND HER CONFESSION, STATEMENTS WERE NOT OFFERED FOR THEIR TRUTH BUT RATHER TO SHOW DEFENDANT’S STATE OF MIND AND TO EXPLAIN WHY SHE CONFESSED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, reversing defendant’s conviction, determined the jury should have been allowed to hear and see the videotaped statements made by the detective to the defendant prior to the Miranda warnings and defendant’s confession to the possession of drugs found in her house. Defendant’s son had also been arrested and the detective told defendant her son was involved in a shooting and was going to prison. Defendant argued at trial that she falsely confessed to the possession of the drugs in an effort to protect her son:

… [T]he pre-Miranda portion of the recorded interview does not constitute impermissible hearsay. It consists of statements by the detective to defendant concerning her son’s gang membership, extensive criminal behavior and suspected involvement in the shooting that took place the night before. Defendant did not seek to introduce this portion of the recording to prove the truth of any of the statements made therein. Rather, she sought to put this evidence before the jury “to establish [her] state of mind upon hearing [them]” … .

Further, the substance of the pre-Miranda portion of the interrogation was relevant and material to the state of mind purposes for which defendant sought to offer it. It is beyond cavil that the circumstances surrounding the making of a confession, including the manner in which it was extracted, are relevant to the question of its voluntariness … . Thus, the statements and representations made by the detective during the pre-Miranda portion of the interrogation, and the environment in which they were uttered, had a bearing on whether defendant’s inculpatory statements were the product of a “‘free and unconstrained'” state of mind … . …

Under defendant’s theory of the case, the statements made by the detective during the pre-Miranda portion of the recording not only went to the voluntariness of her confession, but also established why she confessed falsely. Accordingly, County Court’s evidentiary rulings here excluded evidence directly relevant to a central issue in this case — defendant’s state of mind at the time that she confessed to possessing the drugs. People v Hall, 2018 NY Slip Op 02368, Third Dept 4-5-18

​CRIMINAL LAW (REVERSIBLE ERROR TO REFUSE TO ALLOW IN EVIDENCE THE DETECTIVE’S RECORDED STATEMENTS MADE TO DEFENDANT BEFORE THE MIRANDA WARNINGS AND HER CONFESSION, STATEMENTS WERE NOT OFFERED FOR THEIR TRUTH BUT RATHER TO SHOW DEFENDANT’S STATE OF MIND AND TO EXPLAIN WHY SHE CONFESSED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, REVERSIBLE ERROR TO REFUSE TO ALLOW IN EVIDENCE THE DETECTIVE’S RECORDED STATEMENTS MADE TO DEFENDANT BEFORE THE MIRANDA WARNINGS AND HER CONFESSION, STATEMENTS WERE NOT OFFERED FOR THEIR TRUTH BUT RATHER TO SHOW DEFENDANT’S STATE OF MIND AND TO EXPLAIN WHY SHE CONFESSED (THIRD DEPT))/HEARSAY (CRIMINAL LAW, REVERSIBLE ERROR TO REFUSE TO ALLOW IN EVIDENCE THE DETECTIVE’S RECORDED STATEMENTS MADE TO DEFENDANT BEFORE THE MIRANDA WARNINGS AND HER CONFESSION, STATEMENTS WERE NOT OFFERED FOR THEIR TRUTH BUT RATHER TO SHOW DEFENDANT’S STATE OF MIND AND TO EXPLAIN WHY SHE CONFESSED (THIRD DEPT))/CONFESSIONS (CRIMINAL LAW, REVERSIBLE ERROR TO REFUSE TO ALLOW IN EVIDENCE THE DETECTIVE’S RECORDED STATEMENTS MADE TO DEFENDANT BEFORE THE MIRANDA WARNINGS AND HER CONFESSION, STATEMENTS WERE NOT OFFERED FOR THEIR TRUTH BUT RATHER TO SHOW DEFENDANT’S STATE OF MIND AND TO EXPLAIN WHY SHE CONFESSED (THIRD DEPT))/STATE OF MIND (HEARSAY, CRIMINAL LAW, REVERSIBLE ERROR TO REFUSE TO ALLOW IN EVIDENCE THE DETECTIVE’S RECORDED STATEMENTS MADE TO DEFENDANT BEFORE THE MIRANDA WARNINGS AND HER CONFESSION, STATEMENTS WERE NOT OFFERED FOR THEIR TRUTH BUT RATHER TO SHOW DEFENDANT’S STATE OF MIND AND TO EXPLAIN WHY SHE CONFESSED (THIRD DEPT))

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VILLAGE CODE ENFORCEMENT OFFICER CHARGED WITH RECEIVING A BRIBE AND ENDANGERING THE PUBLIC HEALTH IN CONNECTION WITH THE DEMOLITION OF A BUILDING CONTAINING ASBESTOS, CHARGES SHOULD NOT HAVE BEEN DISMISSED IN THE INTEREST OF JUSTICE PURSUANT TO CPL 210.40 (THIRD DEPT).

The Third Department, reversing Supreme Court, determined Supreme Court abused its discretion in dismissing a case in the interest of justice pursuant to Criminal Procedure Law 210.40. Defendant, a village code enforcement officer, was charged (along with the village mayor) with receiving a bribe and endangering the public health (among several other charges) in connection with the demolition of a building containing asbestos without proper abatement and approval. The mayor had pled guilty to three misdemeanors:

… [O]ur review of the record discloses that some factors certainly militate in favor of defendant — his lack of a criminal record or history of misconduct and the fact that he was removed from his position as the Code Enforcement Officer for the Village. They are, however, not wholly dispositive in this case … . … [W]e find that the court improvidently exercised its discretion in granting defendant’s motion inasmuch as this case does not present “extraordinary and compelling circumstance[s] . . . which cry out for fundamental justice” … . …

We do not … share the court’s view that it was unclear from the record that there was no harm to the environment or to individuals in the vicinity of the demolished building … . The record evidence demonstrates that due to the demolition, the asbestos — a legislatively-recognized carcinogenic agent …  — became friable, meaning that it could crumble and create a dust. More to the point, the record evidence reveals that not only did the dust that was created as a consequence of the demolition lead to the stopping of nearby traffic, workers associated with the demolition were exposed to it. Indeed, one worker stated that, based on his experience as a contractor, he believed that asbestos was present. …

We also find that Supreme Court incorrectly assessed that dismissing the indictment would have a minimal impact upon the confidence of the public in the criminal justice system … inasmuch as permitting a public servant to elude prosecution for an alleged abuse of his or her position’s power cannot be said to foster public confidence … . …

We do not agree with Supreme Court that imposing an authorized sentence upon defendant “would serve absolutely no purpose” had he been tried and convicted of the charged crimes … . To the contrary, deterring individuals from committing a similar crime in the future is a goal served by sentencing a defendant who has been convicted of a crime … . People v Snowden, 2018 NY Slip Op 02369, Third Dept 4-5-18

​CRIMINAL LAW (INTEREST OF JUSTICE DISMISSAL, VILLAGE CODE ENFORCEMENT OFFICER CHARGED WITH RECEIVING A BRIBE AND ENDANGERING THE PUBLIC HEALTH IN CONNECTION WITH THE DEMOLITION OF A BUILDING CONTAINING ASBESTOS, CHARGES SHOULD NOT HAVE BEEN DISMISSED IN THE INTEREST OF JUSTICE PURSUANT TO CPL 210.40 (THIRD DEPT))/ENVIRONMENTAL LAW (CRIMINAL LAW, VILLAGE CODE ENFORCEMENT OFFICER CHARGED WITH RECEIVING A BRIBE AND ENDANGERING THE PUBLIC HEALTH IN CONNECTION WITH THE DEMOLITION OF A BUILDING CONTAINING ASBESTOS, CHARGES SHOULD NOT HAVE BEEN DISMISSED IN THE INTEREST OF JUSTICE PURSUANT TO CPL 210.40 (THIRD DEPT))/MUNICIPAL LAW (CRIMINAL LAW,  VILLAGE CODE ENFORCEMENT OFFICER CHARGED WITH RECEIVING A BRIBE AND ENDANGERING THE PUBLIC HEALTH IN CONNECTION WITH THE DEMOLITION OF A BUILDING CONTAINING ASBESTOS, CHARGES SHOULD NOT HAVE BEEN DISMISSED IN THE INTEREST OF JUSTICE PURSUANT TO CPL 210.40 (THIRD DEPT))/INTEREST OF JUSTICE (CRIMINAL LAW, VILLAGE CODE ENFORCEMENT OFFICER CHARGED WITH RECEIVING A BRIBE AND ENDANGERING THE PUBLIC HEALTH IN CONNECTION WITH THE DEMOLITION OF A BUILDING CONTAINING ASBESTOS, CHARGES SHOULD NOT HAVE BEEN DISMISSED IN THE INTEREST OF JUSTICE PURSUANT TO CPL 210.40 (THIRD DEPT))/CRIMINAL PROCEDURE LAW 240.10 (INTEREST OF JUSTICE DISMISSAL, VILLAGE CODE ENFORCEMENT OFFICER CHARGED WITH RECEIVING A BRIBE AND ENDANGERING THE PUBLIC HEALTH IN CONNECTION WITH THE DEMOLITION OF A BUILDING CONTAINING ASBESTOS, CHARGES SHOULD NOT HAVE BEEN DISMISSED IN THE INTEREST OF JUSTICE PURSUANT TO CPL 210.40 (THIRD DEPT))

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COUNTY COURT’S FAILURE TO MAKE A SEARCHING INQUIRY WHEN DEFENDANT INDICATED HE WISHED TO REPRESENT HIMSELF REQUIRED REVERSAL, DESPITE PRESENCE OF STANDBY COUNSEL (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the trial court failed to make a searching inquiry after defendant indicated he wished to represent himself. The trial was conducted with standby counsel:

County Court failed to conduct a sufficient searching inquiry on the record here. At arraignment, defendant unequivocally expressed his intention to forgo his right to counsel and to instead represent and defend himself. Despite defendant’s clear expression of intent from the earliest possible opportunity, County Court made no immediate attempt, either at arraignment or subsequent pretrial proceedings, to conduct the requisite searching inquiry on the record. It was not until the first day of trial that County Court made any attempt to fulfill its obligation to determine whether defendant had knowingly, voluntarily and intelligently waived his right to counsel. At that time, County Court asked defendant a series of relevant questions relating to his background and pedigree, as well as his physical, mental and emotional capacity to represent himself. However, County Court’s belated searching inquiry fell short; the court neither “tested defendant’s understanding of choosing self-representation,” nor warned of “the ‘risks inherent in proceeding pro se'” … . At no point in this record did the court address the dangers and disadvantages of self-representation or impress upon defendant the “singular importance” of being represented by counsel … . In contrast, at trial and prior to trial, County Court made various unwarranted laudatory comments about defendant’s aptitude for self-representation, thereby giving defendant the probable impression that his decision to proceed without counsel was in his best interest. In fact, at several points in the record, defendant undermined any conclusion that his waiver of the right to counsel was knowing, voluntary and intelligent by demonstrating a fundamental misunderstanding of the role of an attorney. For example, as a result of defendant’s uninformed decision, neither he nor his standby counsel attended jury selection. …

The absence of the requisite searching inquiry may be the inadvertent product of County Court’s familiarity with defendant. However, County Court’s history and prior dealings with defendant does not relieve it of its obligation to conduct — and create a record of — the required inquiry … , for this inquiry serves the vital purpose of ensuring that defendant knew “what [he was] doing” and made the choice to forgo counsel with his “‘eyes open'” … . Moreover, neither County Court’s statements regarding its prior experience with defendant, nor its laudatory comments regarding defendant’s prior pro se performance, provide a reliable basis upon which we can conclude that defendant’s waiver of the right to counsel was knowing, voluntary and intelligent … , particularly given defendant’s statement that he had never before represented himself at a trial. People v Myers, 2018 NY Slip Op 02361, Third Dept 4-5-18

​CRIMINAL LAW (ATTORNEYS, COUNTY COURT’S FAILURE TO MAKE A SEARCHING INQUIRY WHEN DEFENDANT INDICATED HE WISHED TO REPRESENT HIMSELF REQUIRED REVERSAL, DESPITE PRESENCE OF STANDBY COUNSEL (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, COUNTY COURT’S FAILURE TO MAKE A SEARCHING INQUIRY WHEN DEFENDANT INDICATED HE WISHED TO REPRESENT HIMSELF REQUIRED REVERSAL, DESPITE PRESENCE OF STANDBY COUNSEL (THIRD DEPT))/RIGHT TO COUNSEL (CRIMINAL LAW, COUNTY COURT’S FAILURE TO MAKE A SEARCHING INQUIRY WHEN DEFENDANT INDICATED HE WISHED TO REPRESENT HIMSELF REQUIRED REVERSAL, DESPITE PRESENCE OF STANDBY COUNSEL (THIRD DEPT))/WAIVER (RIGHT TO COUNSEL, CRIMINAL LAW, COUNTY COURT’S FAILURE TO MAKE A SEARCHING INQUIRY WHEN DEFENDANT INDICATED HE WISHED TO REPRESENT HIMSELF REQUIRED REVERSAL, DESPITE PRESENCE OF STANDBY COUNSEL (THIRD DEPT))/STANDBY COUNSEL (CRIMINAL LAW, COUNTY COURT’S FAILURE TO MAKE A SEARCHING INQUIRY WHEN DEFENDANT INDICATED HE WISHED TO REPRESENT HIMSELF REQUIRED REVERSAL, DESPITE PRESENCE OF STANDBY COUNSEL (THIRD DEPT))

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DEFENDANT’S STATEMENT AT SENTENCING THAT HE DIDN’T MEAN TO HURT THE VICTIM, RAISING THE POSSIBILITY OF THE JUSTIFICATION DEFENSE, REQUIRED FURTHER INQUIRY BY THE COURT, PLEA VACATED DESPITE FAILURE TO MAKE POSTALLOCUTION MOTION (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defendant’s statement at sentencing that he didn’t mean to hurt the victim required further inquiry by the court:

Although the record does not disclose that defendant made the appropriate postallocution motion required of him to adequately preserve this claim for our review … , we find that defendant made statements at sentencing that cast doubt upon his guilt and the voluntariness of his plea, thus triggering the narrow exception to the preservation requirement and imposing a duty upon County Court “to inquire further to ensure that defendant’s guilty plea [was] knowing and voluntary”… . A trial court “‘should conduct a hearing [or further inquiry] when at plea-taking or upon sentencing it appears the defendant misapprehends the nature of the charges or the consequences of [the] plea'”… . In addition, statements made by a defendant that negate an element of the crime to which a plea has been entered, raise the possibility of a justification defense or otherwise suggest an involuntary plea “require[s] the trial court to then conduct a further inquiry or give the defendant an opportunity to withdraw the plea” … .

At sentencing, defendant stated, “I was sorry that the person got hurt. I didn’t mean to hurt him. I was just trying to protect my family inside my home.” When confronted by County Court with the fact that he had allocuted during the plea colloquy that he intended to hurt the victim, defendant stated, “I was scared, so I intend[ed] to hurt him.” Without any further inquiry or discussion, County Court then proceeded to sentence defendant without providing him with an opportunity to withdraw his plea, notwithstanding his statements raising the possibility of a justification defense. People v Chin, 2018 NY Slip Op 02363, Third Dept 4-5-18

​CRIMINAL LAW (DEFENDANT’S STATEMENT AT SENTENCING THAT HE DIDN’T MEAN TO HURT THE VICTIM, RAISING THE POSSIBILITY OF THE JUSTIFICATION DEFENSE, REQUIRED FURTHER INQUIRY BY THE COURT, PLEA VACATED DESPITE FAILURE TO MAKE POSTALLOCUTION MOTION (THIRD DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT’S STATEMENT AT SENTENCING THAT HE DIDN’T MEAN TO HURT THE VICTIM, RAISING THE POSSIBILITY OF THE JUSTIFICATION DEFENSE, REQUIRED FURTHER INQUIRY BY THE COURT, PLEA VACATED DESPITE FAILURE TO MAKE POSTALLOCUTION MOTION (THIRD DEPT))/VACATE PLEA, MOTION TO (CRIMINAL LAW, APPEALS, DEFENDANT’S STATEMENT AT SENTENCING THAT HE DIDN’T MEAN TO HURT THE VICTIM, RAISING THE POSSIBILITY OF THE JUSTIFICATION DEFENSE, REQUIRED FURTHER INQUIRY BY THE COURT, PLEA VACATED DESPITE FAILURE TO MAKE POSTALLOCUTION MOTION (THIRD DEPT))/ALLOCUTION (CRIMINAL LAW, APPEALS, DEFENDANT’S STATEMENT AT SENTENCING THAT HE DIDN’T MEAN TO HURT THE VICTIM, RAISING THE POSSIBILITY OF THE JUSTIFICATION DEFENSE, REQUIRED FURTHER INQUIRY BY THE COURT, PLEA VACATED DESPITE FAILURE TO MAKE POSTALLOCUTION MOTION (THIRD DEPT))/JUSTIFICATION DEFENSE (CRIMINAL LAW, APPEALS, DEFENDANT’S STATEMENT AT SENTENCING THAT HE DIDN’T MEAN TO HURT THE VICTIM, RAISING THE POSSIBILITY OF THE JUSTIFICATION DEFENSE, REQUIRED FURTHER INQUIRY BY THE COURT, PLEA VACATED DESPITE FAILURE TO MAKE POSTALLOCUTION MOTION (THIRD DEPT))

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