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JUDGE SHOULD HAVE INQUIRED INTO DEFENDANT’S REQUEST FOR NEW COUNSEL AFTER LEARNING DEFENDANT HAD FILED A GRIEVANCE, NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined County Court should have inquired into defendant’s request for new counsel after learning defendant had filed a grievance against his attorney:

Defendant contends that County Court erred in denying his request to substitute his second assigned attorney and, at a minimum, should have conducted a more detailed inquiry with respect to his complaints about counsel’s performance.

” [A]lthough there is no rule requiring that a defendant who has filed a grievance against his attorney be assigned new counsel, [a] court [is] required to make an inquiry to determine whether defense counsel [can] continue to represent defendant in light of the grievance’ ” … . Here, we agree with defendant that the court should have “made at least some minimal inquiry in light of defense counsel’s statement that the defendant had filed a grievance against him,” in order to determine whether defense counsel was properly able to continue to represent defendant … . We thus conclude that the court thereby violated defendant’s right to counsel and that defendant is entitled to a new trial … , prior to which he should be given the opportunity to retain counsel or be assigned new counsel if appropriate. People v Hardy, 2018 NY Slip Op 01837, Fourth Dept 3-16-16

CRIMINAL LAW (ATTORNEYS, JUDGE SHOULD HAVE INQUIRED INTO DEFENDANT’S REQUEST FOR NEW COUNSEL AFTER LEARNING DEFENDANT HAD FILED A GRIEVANCE, NEW TRIAL ORDERED (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, JUDGE SHOULD HAVE INQUIRED INTO DEFENDANT’S REQUEST FOR NEW COUNSEL AFTER LEARNING DEFENDANT HAD FILED A GRIEVANCE, NEW TRIAL ORDERED (FOURTH DEPT))

INDICTMENT DID NOT PROVIDE SUFFICIENT NOTICE OF THE TIME PERIODS IN TWO COUNTS, MOTION FOR A TRIAL ORDER OF DISMISSAL OF THOSE TWO COUNTS SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant’s motion for a trial order of dismissal on two counts of the indictment should have been granted because the indictment did not notify defendant of the time periods of the alleged offenses:

… County Court erred in denying his motion for a trial order of dismissal with respect to counts one and two of the indictment, both charging him with use of a child in a sexual performance, on the ground that the indictment failed to provide defendant with sufficient notice of the time periods during which he allegedly committed those acts … . People v Carrigan, 2018 NY Slip Op 01733, Fourth Dept 3-16-18

CRIMINAL LAW (NOTICE, INDICTMENT DID NOT PROVIDE SUFFICIENT NOTICE OF THE TIME PERIODS IN TWO COUNTS, MOTION FOR A TRIAL ORDER OF DISMISSAL OF THOSE TWO COUNTS SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/INDICTMENTS (NOTICE, INDICTMENT DID NOT PROVIDE SUFFICIENT NOTICE OF THE TIME PERIODS IN TWO COUNTS, MOTION FOR A TRIAL ORDER OF DISMISSAL OF THOSE TWO COUNTS SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/NOTICE (CRIMINAL LAW, INDICTMENT DID NOT PROVIDE SUFFICIENT NOTICE OF THE TIME PERIODS IN TWO COUNTS, MOTION FOR A TRIAL ORDER OF DISMISSAL OF THOSE TWO COUNTS SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/TIME PERIODS (CRIMINAL LAW, INDICTMENTS, NOTICE, INDICTMENT DID NOT PROVIDE SUFFICIENT NOTICE OF THE TIME PERIODS IN TWO COUNTS, MOTION FOR A TRIAL ORDER OF DISMISSAL OF THOSE TWO COUNTS SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

UNDULY HARSH AND SEVERE SENTENCE OF PERSISTENT VIOLENT FELONY OFFENDER (FOURTH DEPT).

The Fourth Department determined defendant’s sentence was unduly harsh and severe. The defendant, a persistent violent felony offender, was convicted of criminal possession of a weapon and sentenced to 25 years to life:

The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the second degree. * * *

… [T]he sentence imposed, an indeterminate term of imprisonment of 25 years to life as a persistent violent felony offender, is unduly harsh and severe. Defendant did not fire or even directly possess the weapon, and there is no evidence that he knew that his codefendant intended to use it unlawfully. Although defendant has multiple prior felony convictions, several of which are for weapon offenses, he has no history of violence on his record, and his conduct in this case does not in our view warrant the maximum sentence permitted by law. We therefore modify the judgment as a matter of discretion in the interest of justice by reducing the sentence to an indeterminate term of imprisonment of 16 years to life … . People v Ray, 2018 NY Slip Op 01796, Fourth Dept 3-16-18

CRIMINAL LAW (UNDULY HARSH AND SEVERE SENTENCE OF PERSISTENT VIOLENT FELONY OFFENDER (FOURTH DEPT))/SENTENCING (CRIMINAL LAW, UNDULY HARSH AND SEVERE SENTENCE OF PERSISTENT VIOLENT FELONY OFFENDER (FOURTH DEPT))/HARSH AND SEVERE SENTENCE  (UNDULY HARSH AND SEVERE SENTENCE OF PERSISTENT VIOLENT FELONY OFFENDER (FOURTH DEPT))/SENTENCING (CRIMINAL LAW, UNDULY HARSH AND SEVERE SENTENCE OF PERSISTENT VIOLENT FELONY OFFENDER (FOURTH DEPT))

DEFENDANT WAS NOT INCLUDED IN THE SANDOVAL CONFERENCE, NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department reversed defendant’s conviction and ordered a new trial because defendant was not included in the Sandoval conference (re: whether defendant could be cross-examined about prior convictions):

Defendant appeals from a judgment convicting him after a jury trial of, inter alia, burglary in the second degree … . As the People correctly concede, reversal is required. The record establishes that defendant was excluded from Supreme Court’s Sandoval conference …  and, because “[t]he court’s Sandoval ruling in this case was not wholly favorable to defendant, . . . it cannot be said that defendant’s presence at the hearing would have been superfluous’ ” … . People v Cooper, 2018 NY Slip Op 01823, Fourth Dept 3-16-18

CRIMINAL LAW (DEFENDANT WAS NOT INCLUDED IN THE SANDOVAL CONFERENCE, NEW TRIAL ORDERED (FOURTH DEPT))/SANDOVAL CONFERENCE (CRIMINAL LAW, DEFENDANT WAS NOT INCLUDED IN THE SANDOVAL CONFERENCE, NEW TRIAL ORDERED (FOURTH DEPT))/PRESENCE OF DEFENDANT (CRIMINAL LAW, PRESENCE OF DEFENDANT AT MATERIAL STAGES, DEFENDANT WAS NOT INCLUDED IN THE SANDOVAL CONFERENCE, NEW TRIAL ORDERED (FOURTH DEPT))

UNDER THE LAW AT THE TIME OF THE OFFENSE, DEFENDANT COULD NOT BE SENTENCED TO ADDITIONAL INCARCERATION FOR A VIOLATION OF HIS CONDITIONAL DISCHARGE IN THIS DRIVING WHILE INTOXICATED CASE (THIRD DEPT).

The Third Department determined, under law at the time of the offense, defendant should not have been sentenced to additional incarceration for a violation of his conditional discharge in this driving while intoxicated case:

After he served his jail term, a declaration of delinquency was filed in 2015, claiming that he violated his conditional discharge by operating a vehicle without an ignition interlock device. In 2016, defendant admitted to violating the terms of his conditional discharge, and County Court revoked the conditional discharge and sentenced him to an additional aggregate prison term of 1 to 3 years, to be followed by three years of conditional discharge. Defendant appeals.

The People concede, and we agree, that pursuant to our recent decision in People v Coon (156 AD3d 105 [2017]), the sentence of imprisonment imposed upon defendant’s violation of the terms of his conditional discharge must be vacated. “A defendant must be sentenced according to the law as it existed at the time that he or she committed the offense and, at the time defendant operated a vehicle without an ignition interlock device, the applicable law did not allow for the imposition of an additional period of imprisonment” … . People v Arvidson, 2018 NY Slip Op 01682, Third Dept 3-15-18

CRIMINAL LAW (DWI, UNDER THE LAW AT THE TIME OF THE OFFENSE, DEFENDANT COULD NOT BE SENTENCED TO ADDITIONAL INCARCERATION FOR A VIOLATION OF HIS CONDITIONAL DISCHARGE IN THIS DRIVING WHILE INTOXICATED CASE (THIRD DEPT))/DRIVING WHILE INTOXICATED (VIOLATION OF CONDITIONAL DISCHARGE, UNDER THE LAW AT THE TIME OF THE OFFENSE, DEFENDANT COULD NOT BE SENTENCED TO ADDITIONAL INCARCERATION FOR A VIOLATION OF HIS CONDITIONAL DISCHARGE IN THIS DRIVING WHILE INTOXICATED CASE (THIRD DEPT))/SENTENCING (DWI, VIOLATION OF CONDITIONAL DISCHARGE,  UNDER THE LAW AT THE TIME OF THE OFFENSE, DEFENDANT COULD NOT BE SENTENCED TO ADDITIONAL INCARCERATION FOR A VIOLATION OF HIS CONDITIONAL DISCHARGE IN THIS DRIVING WHILE INTOXICATED CASE (THIRD DEPT))/CONDITIONAL DISCHARGE, VIOLATION OF (DWI, UNDER THE LAW AT THE TIME OF THE OFFENSE, DEFENDANT COULD NOT BE SENTENCED TO ADDITIONAL INCARCERATION FOR A VIOLATION OF HIS CONDITIONAL DISCHARGE IN THIS DRIVING WHILE INTOXICATED CASE (THIRD DEPT))

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DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, remitted the matter for a new SORA hearing because the court cut off the defendant’s testimony and arguments in support of a downward departure:

“A court determining a defendant’s risk level under the Sex Offender Registration Act (hereinafter SORA) may not downwardly depart from the presumptive risk level unless the defendant first identifies and proves by a preponderance of the evidence the facts in support of a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines'” … .

In this case, during the SORA hearing, the Supreme Court improperly, sua sponte, curtailed the defendant’s testimony and arguments in support of, inter alia, his request for a downward departure. People v Williams, 2018 NY Slip Op 01629, Second Dept 3-14-18

CRIMINAL LAW (SORA, DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT))/JUDGES (CRIMINAL LAW, SORA, DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT))

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DEFENDANT WAS NOT APPRISED OF THE DEPORTATION CONSEQUENCES OF HIS PLEAS, MATTER REMITTED FOR OPPORTUNITY TO MOVE TO VACATE THE PLEAS (SECOND DEPT).

The Second Department determined defendant was not warned of the deportation consequences of his guilty pleas. The matter was remitted to give the defendant the opportunity to move to vacate the pleas:

Here, the record does not demonstrate that the Supreme Court apprised the defendant of the possibility of deportation as a consequence of the defendant’s pleas. Accordingly, we remit the matter to the Supreme Court, Kings County, to afford the defendant an opportunity to move to vacate his pleas, and for a report by the Supreme Court thereafter. Any such motion shall be made by the defendant within 60 days after the date of this decision and order … , and, upon such motion, the defendant will have the burden of establishing that there is a “reasonable probability” that he would not have pleaded guilty had the court advised him of the possibility of deportation… . In its report to this Court, the Supreme Court shall state whether the defendant moved to vacate his pleas of guilty, and if so, shall set forth its finding as to whether the defendant made the requisite showing or failed to make the requisite showing … . People v Cole, 2018 NY Slip Op 01612, Second Dept 3-14-18

CRIMINAL LAW (DEFENDANT WAS NOT APPRISED OF THE DEPORTATION CONSEQUENCES OF HIS PLEAS, MATTER REMITTED FOR OPPORTUNITY TO MOVE TO VACATE THE PLEAS (SECOND DEPT))/DEPORTATION (CRIMINAL LAW, DEFENDANT WAS NOT APPRISED OF THE DEPORTATION CONSEQUENCES OF HIS PLEAS, MATTER REMITTED FOR OPPORTUNITY TO MOVE TO VACATE THE PLEAS (SECOND DEPT))

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NO EVIDENCE OF THREATENED USE OF A DANGEROUS INSTRUMENT, ROBBERY FIRST CONVICTION NOT SUPPORTED, COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENSE COUNSEL’S REQUEST TO WITHDRAW, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, over a dissent, determined the evidence was insufficient to support the robbery first degree charge (no evidence of threat with a dangerous instrument) and the trial court should have conducted an inquiry into defense counsel’s request to withdraw:

Indisputably, the “gun” was plastic and did not work, and there was no evidence that it could potentially harm someone… . Similarly, while there was testimony that one of the men entering the motel room was holding the tire checker, there was no evidence that any individual brandished the tire checker in a threatening manner… . … [T]here is no question that one of the individuals possessed a dangerous instrument. What was missing was any evidence that there was any verbal threat of immediate use of the instrument or that it was “employ[ed]” in any way … . * * *

… [D]efendant’s right to counsel was not adequately protected. County Court’s determination focused on the inconveniences that would result if counsel were substituted and the trial were delayed one month, as well as defendant’s propensity to complain. But it was trial counsel, not defendant, complaining that the relationship had broken down, and the request was not made on the eve of trial. While we are not suggesting that a request made by counsel warrants heightened inquiry, “a conflict of interest or other irreconcilable conflict with counsel” may constitute good cause for substitution… , and there was no inquiry here to assess the gravity of counsel’s concerns in this regard. The motion raised specific examples to support trial counsel’s claim that there was “an irretrievable breakdown” in the relationship with defendant. As such, the court should have first questioned both defendant and trial counsel about “the nature of the disagreement or its potential for resolution” prior to denying the motion … . Absent such a “minimal inquiry,” we are compelled to reverse the judgment of conviction … . People v Matthews, 2018 NY Slip Op 01499, Second Dept 3-8-18

CRIMINAL LAW (EVIDENCE, ATTORNEYS, NO EVIDENCE OF THREATENED USE OF A DANGEROUS INSTRUMENT, ROBBERY FIRST CONVICTION NOT SUPPORTED, COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENSE COUNSEL’S REQUEST TO WITHDRAW, CONVICTION REVERSED (THIRD DEPT))/ROBBERY (DANGEROUS INSTRUMENT, NO EVIDENCE OF THREATENED USE OF A DANGEROUS INSTRUMENT, ROBBERY FIRST CONVICTION NOT SUPPORTED (THIRD DEPT))/EVIDENCE (ROBBERY, DANGEROUS INSTRUMENT, NO EVIDENCE OF THREATENED USE OF A DANGEROUS INSTRUMENT, ROBBERY FIRST CONVICTION NOT SUPPORTED (THIRD DEPT))/DANGEROUS INSTRUMENT (ROBBERY, NO EVIDENCE OF THREATENED USE OF A DANGEROUS INSTRUMENT, ROBBERY FIRST CONVICTION NOT SUPPORTED (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENSE COUNSEL’S REQUEST TO WITHDRAW, CONVICTION REVERSED (THIRD DEPT))/RIGHT TO COUNSEL  (CRIMINAL LAW, COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENSE COUNSEL’S REQUEST TO WITHDRAW, CONVICTION REVERSED (THIRD DEPT))/WITHDRAW (CRIMINAL LAW, DEFENSE COUNSEL, COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENSE COUNSEL’S REQUEST TO WITHDRAW, CONVICTION REVERSED (THIRD DEPT))

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DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT).

The Second Department, over a dissent, determined defendant’s motion to suppress his statement and a buccal swab should have granted but the error was harmless. The dissent argued the error was not harmless. The court noted that a violation of the right to counsel can be raised on appeal even when the error was not preserved:

… [A] recording of the defendant’s custodial statement to the police, which was entered into evidence at the hearing, shows that during the interview the defendant twice stated, “I think I need a lawyer.” The defendant’s statements constituted an unequivocal invocation of the right to counsel, and after those statements, the police continued their questioning of the defendant and took no steps to comply with the defendant’s unequivocal request for counsel. Therefore, the remainder of the defendant’s statement after that point, as well as the buccal swab that he provided to the police after that point, should have been suppressed from evidence … . People v Bethea, 2018 NY Slip Op 01474, Second Dept 3-7-18

CRIMINAL LAW (DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, RIGHT TO COUNSEL, DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION,  DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/APPEALS (CRIMINAL LAW, RIGHT TO COUNSEL, DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/RIGHT TO COUNSEL (DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/SUPPRESSION (CRIMINAL LAW, EVIDENCE, DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/BUCCAL SWAB (CRIMINAL LAW, SUPPRESSION, DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))

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UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, DEFENDANT PROVED THE AFFIRMATIVE DEFENSE OF MENTAL DISEASE OR DEFECT, MURDER CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction after a weight of the evidence analysis, over a dissent, determined that defendant had proved the affirmative defense of mental disease or defect by the preponderance of the evidence:

… [W]e conclude that the jury was not justified in finding that the preponderance of the evidence failed to establish that the defendant lacked the substantial capacity to know or appreciate that his conduct was wrong at the time that he possessed the loaded firearm and shot Wright. The undisputed trial evidence established that at the relevant time, the defendant was suffering from auditory hallucinations, paranoia, and “incorrect perceptions” of reality. The opinion of the People’s expert psychologist that the defendant did not suffer a schizoaffective disorder, notwithstanding such a diagnosis by the defendant’s treating psychiatrists over the past three years, was conclusory. Moreover, the psychologist’s alternative theory that the defendant’s hallucinations were due to his use of PCP were purely speculative and without adequate evidentiary support. The psychologist’s conclusion that the defendant was motivated by revenge against a person he mistakenly perceived to have stolen his shorts was also speculative and contrary to the credible evidence presented. We accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor … , and weigh conflicting expert evidence … . However, on this record, the rational inferences which can be drawn from the evidence presented at trial do not support the conviction. People v Spratley, 2018 NY Slip Op 01488, Second Dept 3-7-18

CRIMINAL LAW (MENTAL DISEASE OR DEFECT, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, DEFENDANT PROVED THE AFFIRMATIVE DEFENSE OF MENTAL DISEASE OR DEFECT, MURDER CONVICTION REVERSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, MENTAL DISEASE OR DEFECT, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, DEFENDANT PROVED THE AFFIRMATIVE DEFENSE OF MENTAL DISEASE OR DEFECT, MURDER CONVICTION REVERSED (SECOND DEPT))/APPEALS (CRIMINAL LAW, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, DEFENDANT PROVED THE AFFIRMATIVE DEFENSE OF MENTAL DISEASE OR DEFECT, MURDER CONVICTION REVERSED (SECOND DEPT)/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, DEFENDANT PROVED THE AFFIRMATIVE DEFENSE OF MENTAL DISEASE OR DEFECT, MURDER CONVICTION REVERSED (SECOND DEPT))/MENTAL DISEASE OR DEFECT (CRIMINAL LAW, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, DEFENDANT PROVED THE AFFIRMATIVE DEFENSE OF MENTAL DISEASE OR DEFECT, MURDER CONVICTION REVERSED (SECOND DEPT))

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