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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))

FAILURE TO ALLEGE AN OVERT ACT IN THE CONSPIRACY COUNT REQUIRED REVERSAL AND DISMISSAL OF THE COUNT AS JURISDICTIONALLY DEFECTIVE (THIRD DEPT).

The Third Department reversed defendant’s conviction for conspiracy because the indictment did not allege an overt act:

We find merit in defendant’s pro se contention that count 4 of the indictment, charging him with conspiracy in the second degree, must be dismissed. Pursuant to Penal Law § 105.20, “[a] person shall not be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy” … . Here, count 4 neither alleges that an overt act was committed nor includes factual allegations describing such an act. There is no assertion that defendant or the codefendants took any action beyond agreeing to “engage in or cause the performance of [conduct constituting a class A felony].” Moreover, the indictment’s reference to Penal Law § 150.15 does not incorporate an overt act allegation by reference, as the requirement is not found in that provision … . Accordingly, defendant’s conviction of conspiracy in the second degree under count 4 of the indictment must be reversed and the sentence imposed thereon vacated, and said count must be dismissed as jurisdictionally defective … . People v Pichardo, 2018 NY Slip Op 02365, Third Dept 4-5-18

​CRIMINAL LAW (CONSPIRACY, FAILURE TO ALLEGE AN OVERT ACT IN THE CONSPIRACY COUNT REQUIRED REVERSAL AND DISMISSAL OF THE COUNT AS JURISDICTIONALLY DEFECTIVE (THIRD DEPT))/CONSPIRACY (CRIMINAL LAW, OVERT ACT, FAILURE TO ALLEGE AN OVERT ACT IN THE CONSPIRACY COUNT REQUIRED REVERSAL AND DISMISSAL OF THE COUNT AS JURISDICTIONALLY DEFECTIVE (THIRD DEPT))/OVERT ACT (CRIMINAL LAW, CONSPIRACY, FAILURE TO ALLEGE AN OVERT ACT IN THE CONSPIRACY COUNT REQUIRED REVERSAL AND DISMISSAL OF THE COUNT AS JURISDICTIONALLY DEFECTIVE (THIRD DEPT))/INDICTMENTS (JURISDICTION DEFECT, FAILURE TO ALLEGE AN OVERT ACT IN THE CONSPIRACY COUNT REQUIRED REVERSAL AND DISMISSAL OF THE COUNT AS JURISDICTIONALLY DEFECTIVE (THIRD DEPT))

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ALLOWING DEFENDANT TO BE CROSS-EXAMINED ABOUT A PRIOR ROBBERY WHICH WAS THE SUBJECT OF A PENDING APPEAL WAS ERROR, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the trial court’s allowing Sandoval evidence of a prior robbery which was the subject of a pending appeal was error, and the error was not harmless under the facts:

We … reverse the judgment of conviction because of an erroneous Sandoval ruling made by the Supreme Court … . At trial, the court permitted the defendant to be cross-examined about a prior robbery conviction which, at that time, was the subject of a pending appeal … . However, the Court of Appeals has held, and the People concede, that defendants may not be examined “about the underlying facts of an unrelated criminal conviction on appeal, for the purpose of impeaching his credibility” …

Sandoval errors are subject to harmless error analyses … . Here, however, we cannot conclude that the evidence of guilt was overwhelming or that there was no reasonable possibility that the error might have contributed to the conviction … . People v Wahaab, 2018 NY Slip Op 02332, Second Dept 4-4-18

​CRIMINAL LAW (ALLOWING DEFENDANT TO BE CROSS-EXAMINED ABOUT A PRIOR ROBBERY WHICH WAS THE SUBJECT OF A PENDING APPEAL WAS ERROR, NEW TRIAL ORDERED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, SANDOVAL, ALLOWING DEFENDANT TO BE CROSS-EXAMINED ABOUT A PRIOR ROBBERY WHICH WAS THE SUBJECT OF A PENDING APPEAL WAS ERROR, NEW TRIAL ORDERED (SECOND DEPT))/SANDOVAL (CRIMINAL LAW, EVIDENCE, ALLOWING DEFENDANT TO BE CROSS-EXAMINED ABOUT A PRIOR ROBBERY WHICH WAS THE SUBJECT OF A PENDING APPEAL WAS ERROR, NEW TRIAL ORDERED (SECOND DEPT))/APPEALS (CRIMINAL LAW, SANDOVAL, ALLOWING DEFENDANT TO BE CROSS-EXAMINED ABOUT A PRIOR ROBBERY WHICH WAS THE SUBJECT OF A PENDING APPEAL WAS ERROR, NEW TRIAL ORDERED (SECOND DEPT))

,

DEFENDANT HAD PLED GUILTY IN ANOTHER COUNTY TO POSSESSION OF THE SAME WEAPON USED IN THE INSTANT ROBBERY, CONVICTION VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY, EVIDENCE OF THE PRIOR CONVICTION PROPERLY ADMITTED UNDER MOLINEUX (SECOND DEPT).

The Second Department determined defendant’s conviction for possession of a weapon violated the protection against double jeopardy. Defendant had pled guilty to possession of the same weapon in a different county. However, proof the conviction was admissible in the trial under Molineux criteria:

Prior to the defendant’s trial in this case, the defendant pleaded guilty in Nassau County to possessing the same gun that was used in the instant robbery. There was no evidence offered at trial to show that the defendant’s possession of the gun was not continuous. Thus, the defendant’s possession of the same gun on December 14, 2011, in Kings County in connection with the instant robbery, and on December 20, 2011, in Nassau County, constituted a single offense for which he could be prosecuted only once … . …

… [T]he Supreme Court properly admitted evidence of the defendant’s conviction in Nassau County … , the underlying facts of that conviction, including that the gun was recovered during a car stop in Nassau County … , and ballistics evidence showing that the loaded gun recovered from defendant’s car … , was the same gun used in the instant robbery committed in Kings County … . Evidence of the defendant’s conviction in Nassau County of criminal possession of a weapon in the fourth degree was probative of the defendant’s intent to commit the instant robbery in the complainant’s home, was inextricably interwoven with the instant robbery, and was necessary to complete the narrative of events leading to the defendant’s arrest in the instant robbery case … . In addition, the probative value of this evidence outweighed the risk of prejudice to the defendant … , and the court’s limiting instruction to the jury served to alleviate any prejudice resulting from the admission of the evidence … . People v Wright, 2018 NY Slip Op 02347, Second Dept 4-4-18

​CRIMINAL LAW (DEFENDANT HAD PLED GUILTY IN ANOTHER COUNTY TO POSSESSION OF THE SAME WEAPON USED IN THE INSTANT ROBBERY, CONVICTION VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY, EVIDENCE OF THE PRIOR CONVICTION PROPERLY ADMITTED UNDER MOLINEUX (SECOND DEPT))/DOUBLE JEOPARDY (DEFENDANT HAD PLED GUILTY IN ANOTHER COUNTY TO POSSESSION OF THE SAME WEAPON USED IN THE INSTANT ROBBERY, CONVICTION VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY, EVIDENCE OF THE PRIOR CONVICTION PROPERLY ADMITTED UNDER MOLINEUX (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, DEFENDANT HAD PLED GUILTY IN ANOTHER COUNTY TO POSSESSION OF THE SAME WEAPON USED IN THE INSTANT ROBBERY, CONVICTION VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY, EVIDENCE OF THE PRIOR CONVICTION PROPERLY ADMITTED UNDER MOLINEUX (SECOND DEPT))/MOLINEUX (CRIMINAL LAW, EVIDENCE, DEFENDANT HAD PLED GUILTY IN ANOTHER COUNTY TO POSSESSION OF THE SAME WEAPON USED IN THE INSTANT ROBBERY, CONVICTION VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY, EVIDENCE OF THE PRIOR CONVICTION PROPERLY ADMITTED UNDER MOLINEUX (SECOND DEPT))

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