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CORRECTION LAW DOES NOT REQUIRE SEX OFFENDER TO DISCLOSE HIS OR HER USE OF FACEBOOK, IT IS ENOUGH THAT THE SEX OFFENDER DISCLOSE EMAIL ADDRESSES AND SCREEN NAMES (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, reversing defendant’s conviction, determined the indictment charging defendant sex offender with a violation of the Correction Law for failing to disclose his use of Facebook was jurisdictionally defective. Disclosure of his Facebook use is not required by the Correction Law and, therefore, failure to disclose is not a crime. Defendant had complied with the requirements of Correction Law §§ 168-f (4) and 168-a (18) by disclosing his email address and screen names:

… [W]e conclude that the social media website or application — be it Facebook or any other social networking website or application — does not constitute a “designation used for the purposes of chat, instant messaging, social networking or other similar [I]nternet communication” (Correction Law § 168-a [18]). An Internet identifier is not the social networking website or application itself; rather, it is how someone identifies himself or herself when accessing a social networking account, whether it be with an electronic mail address or some other name or title, such as a screen name or user name. Defendant’s failure to disclose his use of Facebook is not a crime, rendering the indictment jurisdictionally defective … . People v Ellis, 2018 NY Slip Op 03873, Third Dept 5-31-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), CORRECTION LAW DOES NOT REQUIRE SEX OFFENDER TO DISCLOSE HIS OR HER USE OF FACEBOOK, IT IS ENOUGH THAT THE SEX OFFENDER DISCLOSE EMAIL ADDRESSES AND SCREEN NAMES (THIRD DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (CORRECTION LAW DOES NOT REQUIRE SEX OFFENDER TO DISCLOSE HIS OR HER USE OF FACEBOOK, IT IS ENOUGH THAT THE SEX OFFENDER DISCLOSE EMAIL ADDRESSES AND SCREEN NAMES (THIRD DEPT))/CORRECTION LAW  (SEX OFFENDER REGISTRATION ACT (SORA), CORRECTION LAW DOES NOT REQUIRE SEX OFFENDER TO DISCLOSE HIS OR HER USE OF FACEBOOK, IT IS ENOUGH THAT THE SEX OFFENDER DISCLOSE EMAIL ADDRESSES AND SCREEN NAMES (THIRD DEPT))/FACEBOOK (SEX OFFENDER REGISTRATION ACT (SORA), CORRECTION LAW DOES NOT REQUIRE SEX OFFENDER TO DISCLOSE HIS OR HER USE OF FACEBOOK, IT IS ENOUGH THAT THE SEX OFFENDER DISCLOSE EMAIL ADDRESSES AND SCREEN NAMES (THIRD DEPT))/SOCIAL NETWORKING (SEX OFFENDER REGISTRATION ACT (SORA), CORRECTION LAW DOES NOT REQUIRE SEX OFFENDER TO DISCLOSE HIS OR HER USE OF FACEBOOK, IT IS ENOUGH THAT THE SEX OFFENDER DISCLOSE EMAIL ADDRESSES AND SCREEN NAMES (THIRD DEPT))

PAROLE BOARD PROPERLY CONSIDERED PETITIONER’S YOUTH AT THE TIME HE COMMITTED SERIOUS CRIMES, PAROLE PROPERLY DENIED (THIRD DEPT).

The Third Department, in a comprehensive decision, determined the parole board had properly considered petitioner’s youth at the time of the commission of the crimes and had properly denied parole. Petitioner was a few weeks from his eighteenth birthday when he committed the crimes and was 44 years old at his 2016 appearance before the parole board:

… [R]eview of the record leads us to the conclusion that the Board did consider the necessary statutory factors, as well as petitioner’s youth at the time of the crimes. Specifically, at the hearing, the Board explored the facts underlying petitioner’s crimes in detail and his insight into his crimes, as well as his release plans, prior criminal record, educational and institutional achievements, lengthy prison disciplinary record, sentencing minutes, COMPAS Risk and Needs Assessment instrument and numerous letters of support. Also, the hearing transcript demonstrates that petitioner’s youth at the time that he committed the crimes was adequately explored. * * *

A thorough review of the Board’s decision evinces that all necessary statutory factors, as well as petitioner’s youth and its attendant characteristics, were considered. Although the Board assigned greater weight to the seriousness of petitioner’s crimes, his history of violence, his failure to complete recommended programming and his lengthy prison disciplinary record, we find that the ultimate determination is rational and, therefore, we will not disturb it … . Matter of Allen v Stanford, 2018 NY Slip Op 03888, Third Dept 5-31-18

CRIMINAL LAW (PAROLE BOARD PROPERLY CONSIDERED PETITIONER’S YOUTH AT THE TIME HE COMMITTED SERIOUS CRIMES, PAROLE PROPERLY DENIED (THIRD DEPT))/PAROLE (PAROLE BOARD PROPERLY CONSIDERED PETITIONER’S YOUTH AT THE TIME HE COMMITTED SERIOUS CRIMES, PAROLE PROPERLY DENIED (THIRD DEPT))

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DENIAL OF A PETITION TO MODIFY A SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT IS APPEALABLE AS OF RIGHT, PETITION PROPERLY DENIED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Rivera, considering a question of first impression, determined a defendant can appeal, as of right, the denial of a petition to modify a Sex Offender Registration Act (SORA) risk classification. The Second Department further held that the petition was properly denied, in large part because defendant, who was 71 years old and in poor health, did not participate in any sex offender treatment programs and did not accept responsibility for his sex offenses:

… [N]othing in the language of Correction Law § 168-o(2) precludes this Court’s exercise of its broad authority and jurisdiction to entertain and decide the instant appeal. In the context of SORA, we have long recognized the significant impact upon the defendant’s liberty interest. Furthermore, we are cognizant of the ongoing responsibility and crucial importance in maintaining a balance between the procedural safeguards afforded to the defendant and the societal interests involved in protecting “the public from sex offenders” … . … [W]e hold that a sex offender may appeal from an order denying a petition for a downward modification of his risk level. People v Charles, 2018 NY Slip Op 03864, Second Dept 5-30-18

​CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), DENIAL OF A PETITION TO MODIFY A SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT IS APPEALABLE AS OF RIGHT, IN THIS CASE THE PETITION WAS PROPERLY DENIED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (APPEALS, DENIAL OF A PETITION TO MODIFY A SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT IS APPEALABLE AS OF RIGHT, IN THIS CASE THE PETITION WAS PROPERLY DENIED (SECOND DEPT))/APPEALS (CRIMINAL LAW, SEX OFFENDER REGISTRATION ACT (SORA), APPEALS, DENIAL OF A PETITION TO MODIFY A SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT IS APPEALABLE AS OF RIGHT, IN THIS CASE THE PETITION WAS PROPERLY DENIED (SECOND DEPT))

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COURT DID NOT CONDUCT SEARCHING INQUIRY INTO DEFENDANT’S REQUEST TO PROCEED PRO SE, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that the court’s inquiry into defendant’s request to proceed pro se was inadequate:

The knowing, voluntary, and intelligent waiver of the right to counsel by a defendant who seeks to proceed pro se requires a “searching inquiry” in which the court must communicate to the defendant both the “risks inherent in proceeding pro se” and “the singular importance of the lawyer in the adversarial system of adjudication” … . Neither a defendant’s expression of a strong desire to proceed pro se, nor elicitation of information demonstrating the defendant might be relatively capable of doing so, is a substitute for the two above-cited essential components of a searching inquiry, which were all but completely absent here. The relevant portion of the trial court’s colloquy with defendant on this subject was essentially limited to warning him that self-representation was a “big mistake” and that the court had seen many pro se defendants convicted after trial.

Even when the record is viewed as a whole, the required inquiry does not appear. Defendant had made several requests for self-representation before a calendar court. However, in each instance the court denied the request on the basis of its initial inquiry about defendant’s understanding of the charges, without reaching the stage of the required pro se inquiry at issue on appeal. People v Herbin, 2018 NY Slip Op 03811, First Dept 5-29-18

​CRIMINAL LAW (LESSER INCLUDED OFFENSES, PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))/LESSER INCLUDED OFFENSES (PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))/APPEALS (CRIMINAL LAW, LESSER INCLUDED OFFENSES, PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))

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PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT). ​

The First Department, reversing (modifying) defendant’s conviction of robbery second, determined Supreme Court should have submitted robbery third to the jury as a lesser included offense. But because the People agreed that the conviction could be reduced to robbery third a new trial was not necessary:

There was a reasonable view of the evidence supporting defendant’s request for submission of third-degree robbery as a lesser included offense, and we have considered and rejected the People’s argument that the issue is unpreserved. The appropriate remedy for this type of error would normally be a new trial. However, the People’s concession that, if we reach this error, the conviction should be reduced to third-degree robbery renders a new trial unnecessary because the modification provides defendant with a greater remedy than he would have received had the trial court submitted that charge to the jury … . People v Cabassa, 2018 NY Slip Op 03810, First Dept 5-29-18

​CRIMINAL LAW (LESSER INCLUDED OFFENSES, PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))/LESSER INCLUDED OFFENSES (PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))/APPEALS (CRIMINAL LAW, LESSER INCLUDED OFFENSES, PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))

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THE PEOPLE DID NOT PROVE AT THE SUPPRESSION HEARING THAT THE SEARCH OF DEFENDANT’S PERSON AFTER A STREET STOP WAS SUPPORTED BY PROBABLE CAUSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to suppress items taken from his person should have been granted because the sequence of events which would have legitimized the search was not proven at the hearing:

… [W]e agree with the People that the police had reasonable suspicion to detain defendant based on the detective’s report that he saw a possible drug transaction in which a Hispanic man later identified as defendant, who was wearing a black leather jacket, handed a bag containing two small white objects to another man before walking away, in close temporal and spatial proximity to defendant’s apprehension … . However, this information did not establish probable cause to arrest and search defendant. The detective did not testify that he observed anything that appeared to be money being exchanged or handled by either of the two men, that there was anything furtive about their behavior aside from the sheer brevity of their encounter, or that the area was particularly drug prone … .

When the detective recovered a bag containing drugs after the apparent buyer discarded it, this clearly raised the level of suspicion to probable cause. However, the nontestifying officers had detained defendant based only on the information known at the time of the initial radioed report. The People’s assertion that the search occurred after the testifying detective made a confirmatory identification of defendant is unsupported by the record. In fact, the detective could not specify when the search occurred, or when he learned about it, and the People did not call any witnesses to testify about the nature and timing of the search based on personal knowledge. People v Ayarde, 2018 NY Slip Op 03750, First Dept 5-24-18

​CRIMINAL LAW (STREET STOP, SEARCH, THE PEOPLE DID NOT PROVE AT THE SUPPRESSION HEARING THAT THE SEARCH OF DEFENDANT’S PERSON AFTER A STREET STOP WAS SUPPORTED BY PROBABLE CAUSE (FIRST DEPT))/STREET STOPS (SEARCH, SEARCH, THE PEOPLE DID NOT PROVE AT THE SUPPRESSION HEARING THAT THE SEARCH OF DEFENDANT’S PERSON AFTER A STREET STOP WAS SUPPORTED BY PROBABLE CAUSE (FIRST DEPT))/SEARCH AND SEIZURE (STREET STOPS, THE PEOPLE DID NOT PROVE AT THE SUPPRESSION HEARING THAT THE SEARCH OF DEFENDANT’S PERSON AFTER A STREET STOP WAS SUPPORTED BY PROBABLE CAUSE (FIRST DEPT))

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AFTER THE PEOPLE HAD EXERCISED THEIR PEREMPTORY CHALLENGES TO JURORS AND DEFENSE COUNSEL HAD BEGUN EXERCISING HER PEREMPTORY CHALLENGES, THE TRIAL COURT ALLOWED THE PEOPLE TO BELATEDLY MAKE A PEREMPTORY CHALLENGE, THAT WAS REVERSIBLE ERROR (FIRST DEPT).

The First Department determined it was reversible error to allow the People to belatedly exercise a peremptory challenge to a juror (Mrs. C) after the People had indicated the chosen jurors were acceptable and the defense attorney had started exercising her peremptory challenges:

“The right of peremptory challenge given to an accused person is a substantial right,” and the order in which peremptory challenges are made “is matter of substance” “intended for the benefit of the defendant”… . The statute governing the order for peremptory challenges is not a “mere rule of procedure,” but is “a right secured to the defendant” … . The requirement that the People make peremptory challenges first “is imperative,” and violation of that rule is “a substantial, and not a mere technical error” … . …

The People here had completed their peremptory challenges for the round, and expressly told the court that the remaining prospective jurors, including Ms. C., were acceptable. It was only while defense counsel was making her peremptory challenges that the People sought to belatedly challenge Ms. C. Under these circumstances, the court’s decision to allow the challenge and excuse the juror constitutes reversible error .. . Although the People contend that there was no bad faith in their belated request to exercise the peremptory challenge, CPL 270.15(2) does not contain an exception for good faith. Nor has the Court of Appeals recognized a good faith exception in its decisions strictly construing the statute. People v Robinson, 2018 NY Slip Op 03731, First Dept 5-24-18

​CRIMINAL LAW (JURORS, AFTER THE PEOPLE HAD EXERCISED THEIR PEREMPTORY CHALLENGES TO JURORS AND DEFENSE COUNSEL HAD BEGUN EXERCISING HER PEREMPTORY CHALLENGES, THE TRIAL COURT ALLOWED THE PEOPLE TO BELATEDLY MAKE A PEREMPTORY CHALLENGE, THAT WAS REVERSIBLE ERROR (FIRST DEPT))/JURORS (CRIMINAL LAW, AFTER THE PEOPLE HAD EXERCISED THEIR PEREMPTORY CHALLENGES TO JURORS AND DEFENSE COUNSEL HAD BEGUN EXERCISING HER PEREMPTORY CHALLENGES, THE TRIAL COURT ALLOWED THE PEOPLE TO BELATEDLY MAKE A PEREMPTORY CHALLENGE, THAT WAS REVERSIBLE ERROR (FIRST DEPT))/PEREMPTORY CHALLENGES (CRIMINAL LAW, JURORS, AFTER THE PEOPLE HAD EXERCISED THEIR PEREMPTORY CHALLENGES TO JURORS AND DEFENSE COUNSEL HAD BEGUN EXERCISING HER PEREMPTORY CHALLENGES, THE TRIAL COURT ALLOWED THE PEOPLE TO BELATEDLY MAKE A PEREMPTORY CHALLENGE, THAT WAS REVERSIBLE ERROR (FIRST DEPT))

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TRIAL COURT PROPERLY GAVE THE GALBO JURY INSTRUCTION RE DEFENDANT’S POSSESSION OF STOLEN PROPERTY IN THIS BURGLARY CASE (SECOND DEPT).

The Second Department determined the trial court properly gave the Galbo charge in this burglary case:

… Supreme Court [did not err] in giving the jury a Galbo charge (see People v Galbo, 218 NY 283) to the effect that the defendant’s guilt of burglary could be inferred from his recent, unexplained, and exclusive possession of the stolen items. The prosecution presented both circumstantial and direct evidence, including admissions made by the defendant during a series of telephone calls, that the defendant committed the burglary and possessed the items, and there was no reasonable view of the evidence whereby the jury could have found that the defendant unlawfully possessed the property without also finding that he committed the burglary … . People v Jones, 2018 NY Slip Op 03703, Second Dept 5-23-18

 

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ALTHOUGH THE PEOPLE MADE AN UNTIMELY MOTION FOR A BUCCAL SWAB FOR DNA TESTING, THE ERROR DID NOT REQUIRE REVERSAL (SECOND DEPT).

The Second Department determined the People’s motion to compel defendant to submit to a buccal swab for DNA testing was untimely under Criminal Procedure Law 240.90. But the admission of the evidence did not require reversal because the error did not implicate defendant’s constitutional rights. People v Cox, 2018 NY Slip Op 03698, Second Dept 5-23-18

​CRIMINAL LAW (ALTHOUGH THE PEOPLE MADE AN UNTIMELY MOTION FOR A BUCCAL SWAB FOR DNA TESTING, THE ERROR DID NOT REQUIRE REVERSAL (SECOND DEPT))/DNA (ALTHOUGH THE PEOPLE MADE AN UNTIMELY MOTION FOR A BUCCAL SWAB FOR DNA TESTING, THE ERROR DID NOT REQUIRE REVERSAL (SECOND DEPT))/BUCCAL SWAB (DNA, ALTHOUGH THE PEOPLE MADE AN UNTIMELY MOTION FOR A BUCCAL SWAB FOR DNA TESTING, THE ERROR DID NOT REQUIRE REVERSAL (SECOND DEPT))

NO INDICATION IN THE INDICTMENT OR THE ALLOCUTION THAT THE THREE ‘POSSESSION OF A SEXUAL PERFORMANCE BY A CHILD’ OFFENSES TOOK PLACE AT DIFFERENT TIMES OR LOCATIONS, CONSECUTIVE SENTENCES NOT AUTHORIZED (THIRD DEPT).

The Third Department determined, based upon the wording of the indictment, the defendant should not have been given consecutive sentences the three counts of possession of a sexual performance of a child. The indictment alleged the offenses occurred at the same time and place:

… [T]he imposition of consecutive sentences for possession of a sexual performance by a child convictions were not authorized because his conduct amounted to a single criminal act … . “It is well settled that sentences are authorized to be imposed consecutively if multiple offenses are committed through separate and distinct acts, even though they may be part of a single transaction”… . To justify consecutive sentences in this context, the People were required to establish, either through the indictment or the facts adduced during the allocution, that defendant came into possession of the images at separate and distinct times … . Here, the counts in the indictment to which defendant pleaded guilty contained identical language as to the time, date and place of possession. Inasmuch as neither the indictment nor the facts adduced during the allocution establish that the digital images came into defendant’s possession at separate and distinct times, consecutive sentences were not authorized … . People v Stein, 2018 NY Slip Op 03566, Third Dept 5-17-18

​CRIMINAL LAW (SENTENCING, NO INDICATION IN THE INDICTMENT OR THE ALLOCUTION THAT THE THREE ‘POSSESSION OF A SEXUAL PERFORMANCE BY A CHILD’ OFFENSES TOOK PLACE AT DIFFERENT TIME OR LOCATIONS, CONSECUTIVE SENTENCES NOT AUTHORIZED (THIRD DEPT))/SENTENCING (NO INDICATION IN THE INDICTMENT OR THE ALLOCUTION THAT THE THREE ‘POSSESSION OF A SEXUAL PERFORMANCE BY A CHILD’ OFFENSES TOOK PLACE AT DIFFERENT TIME OR LOCATIONS, CONSECUTIVE SENTENCES NOT AUTHORIZED (THIRD DEPT))

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