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JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE AUTOMOBILE PRESUMPTION OF POSSESSION OF A WEAPON, THE WEAPON WAS SEEN IN THE POSSESSION OF A PASSENGER IN THE CAR (SECOND DEPT).

The Second Department, reversing defendant’s possession of a weapon convictions, determined the jury should not have been instructed on the automobile presumption of possession of a weapon. The weapon was seen in the possession of a passenger:

Both police officers who pursued the vehicle being driven by the defendant testified that the gun was seen solely in the physical possession of the other occupant of the vehicle who threw it out the rear passenger side window. This clear-cut evidence that the gun was observed exclusively in the possession of an identified occupant of the vehicle renders the automobile presumption inapplicable and it was error for the court to have charged that presumption … . The error in giving the charge was not harmless since it is impossible to determine whether the guilty verdict was based on this improper jury charge rather than the proper charges pertaining to the People’s alternative theories of constructive possession and acting in concert … . Accordingly, we must vacate the defendant’s convictions of criminal possession of a weapon in the second degree and the sentences imposed thereon and order a new trial on those counts of the indictment. People v Drayton-Archer, 2018 NY Slip Op 01934, Second Dept 3-21-18

CRIMINAL LAW (JURY INSTRUCTIONS, AUTOMOBILE PRESUMPTION, JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE AUTOMOBILE PRESUMPTION OF POSSESSION OF A WEAPON, THE WEAPON WAS SEEN IN THE POSSESSION OF A PASSENGER IN THE CAR (SECOND DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, AUTOMOBILE PRESUMPTION, JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE AUTOMOBILE PRESUMPTION OF POSSESSION OF A WEAPON, THE WEAPON WAS SEEN IN THE POSSESSION OF A PASSENGER IN THE CAR (SECOND DEPT))/AUTOMOBILE PRESUMPTION (CRIMINAL LAW, POSSESSION OF A WEAPON, JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE AUTOMOBILE PRESUMPTION OF POSSESSION OF A WEAPON, THE WEAPON WAS SEEN IN THE POSSESSION OF A PASSENGER IN THE CAR (SECOND DEPT))/WEAPON, POSSESSION OF (AUTOMOBILE PRESUMPTION, JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE AUTOMOBILE PRESUMPTION OF POSSESSION OF A WEAPON, THE WEAPON WAS SEEN IN THE POSSESSION OF A PASSENGER IN THE CAR (SECOND DEPT))/AUTOMOBILE PRESUMPTION (POSSESSION OF A WEAPON,  JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE AUTOMOBILE PRESUMPTION OF POSSESSION OF A WEAPON, THE WEAPON WAS SEEN IN THE POSSESSION OF A PASSENGER IN THE CAR (SECOND DEPT))

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TRIAL JUDGE SHOULD HAVE ALLOWED DEFENSE COUNSEL TO REOPEN THE PROOF AFTER A VIDEO PLAYED DURING SUMMATION DEMONSTRATED THE ALLEGED VICTIM HAD NOT TESTIFIED TRUTHFULLY, DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO VIEW THE ENTIRE VIDEO PRIOR TO TRIAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined: (1) the court erred when ii refused to reopen the proof after a video played for the first time during summation demonstrated defendant’s estranged wife, the alleged victim, had apparently not testified truthfully; and (2) defense counsel was ineffective for failing to view the entire video before trial. The video was from a convenience store. The estranged wife testified that the defendant fired shots at her as she was driving two minutes after leaving the convenience store. She testified she was driving a green Lexus with one child when the shots were fired. The video apparently showed her leaving the convenience store in a blue-gray Nissan with two children:

… [T]he decision to permit a party to reopen the case, at least prior to its submission to the jury, lies within the discretion of the trial court … . A trial court’s discretion to preclude evidence is nonetheless “circumscribed by the defendant’s constitutional rights to present a defense and confront his [or her] accusers” … , because “[a] defendant always has the constitutional right to present a complete defense”… and “to put before a jury evidence that might influence the determination of guilt” … . …

Here, defendant’s arguments in support of his motion to reopen the proof implicated the constitutional aspects of his contention raised on appeal, i.e., that reopening the proof was necessary to afford him a fair trial and his right to present a defense to the allegations upon which he was being prosecuted. To the extent that defendant did not preserve the constitutional aspects of his contention for our review by failing to raise them sufficiently before the trial court … , we exercise our power to review those aspects of his contention as a matter of discretion in the interest of justice … . People v Owens, 2018 NY Slip Op 01712, Fourth Dept 3-16-18

CRIMINAL LAW (TRIAL JUDGE SHOULD HAVE ALLOWED DEFENSE COUNSEL TO REOPEN THE PROOF AFTER A VIDEO PLAYED DURING SUMMATION DEMONSTRATED THE ALLEGED VICTIM HAD NOT TESTIFIED TRUTHFULLY, DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO VIEW THE ENTIRE VIDEO PRIOR TO TRIAL (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, REOPEN PROOF, TRIAL JUDGE SHOULD HAVE ALLOWED DEFENSE COUNSEL TO REOPEN THE PROOF AFTER A VIDEO PLAYED DURING SUMMATION DEMONSTRATED THE ALLEGED VICTIM HAD NOT TESTIFIED TRUTHFULLY, DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO VIEW THE ENTIRE VIDEO PRIOR TO TRIAL (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, (TRIAL JUDGE SHOULD HAVE ALLOWED DEFENSE COUNSEL TO REOPEN THE PROOF AFTER A VIDEO PLAYED DURING SUMMATION DEMONSTRATED THE ALLEGED VICTIM HAD NOT TESTIFIED TRUTHFULLY, DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO VIEW THE ENTIRE VIDEO PRIOR TO TRIAL (FOURTH DEPT))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, TRIAL JUDGE SHOULD HAVE ALLOWED DEFENSE COUNSEL TO REOPEN THE PROOF AFTER A VIDEO PLAYED DURING SUMMATION DEMONSTRATED THE ALLEGED VICTIM HAD NOT TESTIFIED TRUTHFULLY, DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO VIEW THE ENTIRE VIDEO PRIOR TO TRIAL (FOURTH DEPT))/TRIALS (CRIMINAL LAW, REOPEN PROOF, TRIAL JUDGE SHOULD HAVE ALLOWED DEFENSE COUNSEL TO REOPEN THE PROOF AFTER A VIDEO PLAYED DURING SUMMATION DEMONSTRATED THE ALLEGED VICTIM HAD NOT TESTIFIED TRUTHFULLY, DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO VIEW THE ENTIRE VIDEO PRIOR TO TRIAL (FOURTH DEPT))

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EXPERT EVIDENCE ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) WAS IMPROPERLY ADMITTED TO SHOW THE VICTIM WAS ABUSED, CONVICTIONS REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction in the interest of justice, determined the expert evidence on child sexual abuse accommodation syndrome (CSAAS) was improperly admitted to prove the crime took place, depriving defendant of a fair trial:

… [W]e acknowledge that expert testimony concerning CSAAS and similar psychological syndromes has long been admissible to explain the behavior of a victim that might be puzzling to a jury … . Here, however, the expert witness did not confine her testimony to “educat[ing] the jury on a scientifically recognized pattern of secrecy, helplessness, entrapment [and] accommodation’ experienced by a child victim” … . Instead, the expert explained “grooming” and other behaviors associated with perpetrators of child sexual abuse. Her detailed description of a typical perpetrator’s modus operandi, moreover, closely tracked the victim’s testimony concerning defendant’s conduct, and the prosecutor on summation urged the jury to conclude that defendant’s interactions with the victim fit the description of a typical perpetrator’s conduct as described by the expert. In sum, that part of the testimony of the expert describing the conduct of a typical perpetrator was not directed at explaining the victim’s behavior. Rather, it was presented “for the purpose of proving that the [victim] was sexually abused” … , which purpose was reinforced by the prosecutor’s summation. People v Ruiz, 2018 NY Slip Op 01722, Fourth Dept 3-16-18

CRIMINAL LAW (EXPERT EVIDENCE ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) WAS IMPROPERLY ADMITTED TO SHOW THE VICTIM WAS ABUSED, CONVICTIONS REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, EXPERT EVIDENCE ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) WAS IMPROPERLY ADMITTED TO SHOW THE VICTIM WAS ABUSED, CONVICTIONS REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/APPEALS (CRIMINAL LAW, EXPERT EVIDENCE ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) WAS IMPROPERLY ADMITTED TO SHOW THE VICTIM WAS ABUSED, CONVICTIONS REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) (EXPERT EVIDENCE ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) WAS IMPROPERLY ADMITTED TO SHOW THE VICTIM WAS ABUSED, CONVICTIONS REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/EXPERT OPINION (CRIMINAL LAW, (EXPERT EVIDENCE ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) WAS IMPROPERLY ADMITTED TO SHOW THE VICTIM WAS ABUSED, CONVICTIONS REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))

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DEFENDANT HAD STANDING TO CONTEST THE SEARCH, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant had standing to contest the search which turned up the weapon defendant was charged with possessing:

“[A] defendant seeking to suppress evidence, on the basis that it was obtained by means of an illegal search, must allege standing to challenge the search and, if the allegation is disputed, must establish standing” … . To establish standing, the defendant must demonstrate that he or she has a legitimate expectation of privacy in the place searched … . A defendant has no expectation of privacy in a home where he or she is merely a casual visitor with tenuous ties to it… . In such cases, the defendant does not have standing to challenge the legality of the search of the home… .

According to the unrefuted testimony at the suppression hearing of defendant’s brother and sister-in-law, the lessors of the home, defendant resided there until two months prior to the incident. Nevertheless, defendant maintained the address associated with the home as his permanent mailing address, and, although he removed much of his property, he continued to keep clothes there. He returned frequently to care for his nieces and nephews, and he was entrusted with the home when his brother and sister-in-law were away. Defendant was at the home often and slept there overnight between 5 and 12 times per month. Thus, we conclude that defendant’s “connection with the premises was substantially greater than that of a casual visitor, and . . . that . . . defendant had a reasonable expectation of privacy in the home” … .

Inasmuch as “our review is limited to the issues determined by the court”… , and the court failed to determine whether one of the lessors of the home consented to the search, we continue to hold the case and reserve decision, and we remit the matter to Supreme Court to determine that issue. People v Sweat, 2018 NY Slip Op 01786, Fourth Dept 3-16-18

CRIMINAL LAW (DEFENDANT HAD STANDING TO CONTEST THE SEARCH, MATTER REMITTED (FOURTH DEPT))/SUPPRESSION (CRIMINAL LAW, EVIDENCE, DEFENDANT HAD STANDING TO CONTEST THE SEARCH, MATTER REMITTED (FOURTH DEPT))/SEARCH AND SEIZURE (CRIMINAL LAW, SUPPRESSION, DEFENDANT HAD STANDING TO CONTEST THE SEARCH, MATTER REMITTED (FOURTH DEPT))/STANDING (CRIMINAL LAW, SEARCH AND SEIZURE, SUPPRESSION, DEFENDANT HAD STANDING TO CONTEST THE SEARCH, MATTER REMITTED (FOURTH DEPT))

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LEGALLY INSUFFICIENT EVIDENCE THAT DEFENDANT WAS THE SHOOTER IN THIS HOME INVASION CASE, FIRST DEGREE MURDER CONVICTION REDUCED TO SECOND DEGREE MURDER (FOURTH DEPT).

The Fourth Department, reducing defendant’s conviction from first degree to second degree murder, over a two-justice dissent, determined there was legally insufficient evidence that the defendant shot the victim in this home invasion case:

To support a conviction of murder in the first degree under Penal Law § 125.27 (1) (a) (vii), the People were required to establish beyond a reasonable doubt that defendant intentionally caused the victim’s death during the commission of a crime enumerated in the statute, such as a robbery or burglary in the first degree. A conviction under subparagraph (vii) cannot be based on accomplice liability under section 20.00, “unless the defendant’s criminal liability . . . is based upon the defendant having commanded another person to cause the death of the victim or intended victim” … . Here, the jury was never presented with the command theory of liability, but was instead expressly instructed in response to a jury note that, to convict defendant of murder in the first degree, it would have to determine that defendant “pulled the trigger himself.”

Viewing the evidence in the light most favorable to the People, we conclude that no rational trier of fact could have found beyond a reasonable doubt that defendant shot the victim… . Here, the evidence established that defendant’s girlfriend was also inside the victim’s house with defendant at the time when the victim is believed to have been shot, but the People presented no evidence whatsoever with respect to the series of events inside the home or with respect to who ultimately “pulled the trigger” against the victim. People v Henry, 2018 NY Slip Op 01833, Fourth Dept 3-16-18

CRIMINAL LAW (LEGALLY INSUFFICIENT EVIDENCE THAT DEFENDANT WAS THE SHOOTER IN THIS HOME INVASION CASE, FIRST DEGREE MURDER CONVICTION REDUCED TO SECOND DEGREE MURDER (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, LEGALLY INSUFFICIENT EVIDENCE THAT DEFENDANT WAS THE SHOOTER IN THIS HOME INVASION CASE, FIRST DEGREE MURDER CONVICTION REDUCED TO SECOND DEGREE MURDER (FOURTH DEPT))

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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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