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FAILURE TO REQUEST THAT THE JURY BE CHARGED ON A LESSER INCLUDED OFFENSE AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL, THE EVIDENCE OF THE CHARGED OFFENSE WAS WEAK, THE LESSER INCLUDED OFFENSE WAS PLAUSIBLE, AND THE SENTENCING DISPARITY WAS ENORMOUS (SECOND DEPT).

The Second Department determined defense counsel’s failure to ask that the jury be charged with the lesser included offense of trespass in this burglary prosecution constituted ineffective assistance. The court noted that, because defendant was a persistent violent felony offender he faced a minimum sentence of 16 to life on the burglary conviction, but a trespass conviction would entail only one year in jail. The evidence that defendant intended to steal something was weak, the mistaken-identification defense put forth by defense counsel was weak, so trespass would have been a viable alternative for the jury:

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In deciding whether to ask for submission of the lesser included offense, defense counsel was obligated to consider the possible consequences of that decision for his client. The defendant was a persistent violent felony offender who, upon his conviction of burglary in the second degree (see Penal Law § 70.02[1][b]), faced a minimum sentence of 16 years to life imprisonment… . By contrast, upon conviction of criminal trespass in the second degree, which, like the remaining charge, criminal mischief in the fourth degree, was a class A misdemeanor, the defendant faced a maximum of one year in jail. That is not to say that counsel would have been required to argue the lesser included offense in summation, but it was not reasonable for counsel to deprive the jury of the opportunity to consider it … . Given the weakness of the mistaken-identification defense, the plausibility of the lesser included offense, and the enormous sentencing disparity between a burglary conviction and a criminal trespass conviction, counsel’s failure to request submission of the lesser included offense cannot be considered part of a legitimate all-or-nothing strategy. Under the circumstances, counsel’s failure to request submission of the lesser included offense deprived the defendant of his right to meaningful representation … . People v Orama, 2018 NY Slip Op 00571, Second Dept 1-31-18

CRIMINAL LAW (ATTORNEYS, INEFFECTIVE ASSISTANCE, FAILURE TO REQUEST THAT THE JURY BE CHARGED ON A LESSER INCLUDED OFFENSE AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL, THE EVIDENCE OF THE CHARGED OFFENSE WAS WEAK, THE LESSER INCLUDED OFFENSE WAS PLAUSIBLE, AND THE SENTENCING DISPARITY WAS ENORMOUS (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, FAILURE TO REQUEST THAT THE JURY BE CHARGED ON A LESSER INCLUDED OFFENSE AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL, THE EVIDENCE OF THE CHARGED OFFENSE WAS WEAK, THE LESSER INCLUDED OFFENSE WAS PLAUSIBLE, AND THE SENTENCING DISPARITY WAS ENORMOUS (SECOND DEPT))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, FAILURE TO REQUEST THAT THE JURY BE CHARGED ON A LESSER INCLUDED OFFENSE AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL, THE EVIDENCE OF THE CHARGED OFFENSE WAS WEAK, THE LESSER INCLUDED OFFENSE WAS PLAUSIBLE, AND THE SENTENCING DISPARITY WAS ENORMOUS (SECOND DEPT))/LESSER INCLUDED OFFENSES (INEFFECTIVE ASSISTANCE, FAILURE TO REQUEST THAT THE JURY BE CHARGED ON A LESSER INCLUDED OFFENSE AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL, THE EVIDENCE OF THE CHARGED OFFENSE WAS WEAK, THE LESSER INCLUDED OFFENSE WAS PLAUSIBLE, AND THE SENTENCING DISPARITY WAS ENORMOUS (SECOND DEPT))

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DEFENDANT’S ATTEMPTED ASSAULT CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the attempted assault conviction was against the weight of the evidence:

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The only witness who identified the defendant prior to trial admitted to being intoxicated at the time of the stabbing incident. That witness failed to identify the defendant at trial. Although the People presented the testimony of three other witnesses who identified the defendant at the trial, those witnesses did not identify the defendant at any point prior to the trial, even though they were present at the scene of the crime when the defendant was apprehended and they appeared at a police precinct for questioning later that day. Two of the witnesses’ descriptions of the perpetrator’s clothing varied significantly from the clothing worn by the defendant upon his apprehension, which occurred within minutes of the incident. At the scene, those witnesses provided no further description of the defendant. Despite testimony that the victim began “gush[ing]” blood after he was stabbed during a physical struggle, the arresting officer did not remember having seen any blood on the defendant’s person or clothing when he was apprehended. That police officer testified that, after witnesses pointed to the perpetrator, he briefly “lost sight” of that person before apprehending the defendant. People v Serrano, 2018 NY Slip Op 00573, Second Dept 1-31-18

CRIMINAL LAW (EVIDENCE, DEFENDANT’S ATTEMPTED ASSAULT CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, DEFENDANT’S ATTEMPTED ASSAULT CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, DEFENDANT’S ATTEMPTED ASSAULT CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))

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ONCE THE LOCKS ON THE APARTMENT WERE CHANGED PURSUANT TO A LEGAL POSSESSION, DEFENDANT NO LONGER HAD A LEGITIMATE EXPECTATION OF PRIVACY IN HIS BEDROOM, DEFENDANT DID NOT DEMONSTRATE THE LEGAL POSSESSION WAS ILLEGAL, DEFENDANT DID NOT HAVE STANDING TO SEEK SUPPRESSION OF THE FIREARMS FOUND IN HIS BEDROOM (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Cohen, in a matter of first impression, determined the defendant did not have standing to move to suppress firearms found in his bedroom in an apartment. Defendant had been living with the family who leased the apartment. Based on failure to pay rent, the marshal changed the locks, leaving the possessions inside, thereby tendering “legal possession” of the apartment to the landlord. Answering a complaint of trespass, police officers entered the apartment and found one of the family members who had been renting it inside. The police searched the apartment and seized several handguns in defendant’s room. The defendant argued that the People did not demonstrate the eviction (legal possession) had been done legally, and therefore he had standing to move to suppress. But the Second Department noted that defendant, who had relied on the evidence presented by the People, did not demonstrate the eviction (legal possession) was illegal and therefore did not meet his burden of proof on that issue. The defendant also argued that he had an expectation of privacy in the bedroom at the time it was searched. But the Second Department determined once the legal possession was accomplished, defendant had no right to enter the apartment, and therefore had no expectation of privacy in his former bedroom:

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… [T]he defendant, to establish his standing, relied on the evidence presented by the People regarding the execution of the warrant of eviction…. [W]hile the defendant is correct that the “Marshal’s Legal Possession” letter did not establish that the legal possession had been obtained legally, it likewise did not establish that the legal possession had been obtained illegally.

… [T]he defendant failed to satisfy his burden of establishing that he had standing to challenge the search of his former bedroom and seizure of the guns and ammunition based upon the alleged illegality of the legal possession … . * * *

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Here, the legal possession gave the landlord the right to possess the apartment and remove the tenants and occupants. Although their belongings remained in the apartment, thereby necessarily creating a bailment, the tenants and occupants no longer had a legal right to possess or control the subject apartment, nor to enter or remain therein. Given that the defendant had no legal right to possess or control the subject apartment after the landlord was given legal possession thereof, any subjective expectation of privacy he manifested in the bedroom which he had occupied in the apartment was not objectively reasonable … . People v McCullum, 2018 NY Slip Op 00570, Second Dept 1-31-18

CRIMINAL LAW (SUPPRESSION, ONCE THE LOCKS ON THE APARTMENT WERE CHANGED PURSUANT TO A LEGAL POSSESSION, DEFENDANT NO LONGER HAD A LEGITIMATE EXPECTATION OF PRIVACY IN HIS BEDROOM, DEFENDANT DID NOT DEMONSTRATE THE LEGAL POSSESSION WAS ILLEGAL, DEFENDANT DID NOT HAVE STANDING TO SEEK SUPPRESSION OF THE FIREARMS FOUND IN HIS BEDROOM (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, ONCE THE LOCKS ON THE APARTMENT WERE CHANGED PURSUANT TO A LEGAL POSSESSION, DEFENDANT NO LONGER HAD A LEGITIMATE EXPECTATION OF PRIVACY IN HIS BEDROOM, DEFENDANT DID NOT DEMONSTRATE THE LEGAL POSSESSION WAS ILLEGAL, DEFENDANT DID NOT HAVE STANDING TO SEEK SUPPRESSION OF THE FIREARMS FOUND IN HIS BEDROOM (SECOND DEPT))/SEARCH AND SEIZURE (CRIMINAL LAW, SUPPRESSION, ONCE THE LOCKS ON THE APARTMENT WERE CHANGED PURSUANT TO A LEGAL POSSESSION, DEFENDANT NO LONGER HAD A LEGITIMATE EXPECTATION OF PRIVACY IN HIS BEDROOM, DEFENDANT DID NOT DEMONSTRATE THE LEGAL POSSESSION WAS ILLEGAL, DEFENDANT DID NOT HAVE STANDING TO SEEK SUPPRESSION OF THE FIREARMS FOUND IN HIS BEDROOM (SECOND DEPT))/STANDING (CRIMINAL LAW, SEARCH AND SEIZURE, SUPPRESSION, ONCE THE LOCKS ON THE APARTMENT WERE CHANGED PURSUANT TO A LEGAL POSSESSION, DEFENDANT NO LONGER HAD A LEGITIMATE EXPECTATION OF PRIVACY IN HIS BEDROOM, DEFENDANT DID NOT DEMONSTRATE THE LEGAL POSSESSION WAS ILLEGAL, DEFENDANT DID NOT HAVE STANDING TO SEEK SUPPRESSION OF THE FIREARMS FOUND IN HIS BEDROOM (SECOND DEPT))/LANDLORD-TENANT (LEGAL POSSESSION, CRIMINAL LAW, ONCE THE LOCKS ON THE APARTMENT WERE CHANGED PURSUANT TO A LEGAL POSSESSION, DEFENDANT NO LONGER HAD A LEGITIMATE EXPECTATION OF PRIVACY IN HIS BEDROOM, DEFENDANT DID NOT DEMONSTRATE THE LEGAL POSSESSION WAS ILLEGAL, DEFENDANT DID NOT HAVE STANDING TO SEEK SUPPRESSION OF THE FIREARMS FOUND IN HIS BEDROOM (SECOND DEPT))/LEGAL POSSESSION (LANDLORD-TENANT,  ONCE THE LOCKS ON THE APARTMENT WERE CHANGED PURSUANT TO A LEGAL POSSESSION, DEFENDANT NO LONGER HAD A LEGITIMATE EXPECTATION OF PRIVACY IN HIS BEDROOM, DEFENDANT DID NOT DEMONSTRATE THE LEGAL POSSESSION WAS ILLEGAL, DEFENDANT DID NOT HAVE STANDING TO SEEK SUPPRESSION OF THE FIREARMS FOUND IN HIS BEDROOM (SECOND DEPT))/EXPECTATION OF PRIVACY (CRIMINAL LAW, SEARCH AND SEIZURE, ONCE THE LOCKS ON THE APARTMENT WERE CHANGED PURSUANT TO A LEGAL POSSESSION, DEFENDANT NO LONGER HAD A LEGITIMATE EXPECTATION OF PRIVACY IN HIS BEDROOM, DEFENDANT DID NOT DEMONSTRATE THE LEGAL POSSESSION WAS ILLEGAL, DEFENDANT DID NOT HAVE STANDING TO SEEK SUPPRESSION OF THE FIREARMS FOUND IN HIS BEDROOM (SECOND DEPT))/EVICTION (CRIMINAL LAW, SEARCH AND SEIZURE, LEGAL POSSESSION, ONCE THE LOCKS ON THE APARTMENT WERE CHANGED PURSUANT TO A LEGAL POSSESSION, DEFENDANT NO LONGER HAD A LEGITIMATE EXPECTATION OF PRIVACY IN HIS BEDROOM, DEFENDANT DID NOT DEMONSTRATE THE LEGAL POSSESSION WAS ILLEGAL, DEFENDANT DID NOT HAVE STANDING TO SEEK SUPPRESSION OF THE FIREARMS FOUND IN HIS BEDROOM (SECOND DEPT))

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INTENT REQUIREMENT OF ATTEMPTED GRAND LARCENY DOES NOT ATTACH TO THE VALUE OF THE PROPERTY, GRAND LARCENY COUNTS SHOULD NOT HAVE BEEN DISMISSED OR REDUCED BASED ON THE GRAND JURY EVIDENCE WHICH DID NOT INCLUDE EVIDENCE OF THE INTENT TO STEAL PROPERTY OF A CERTAIN VALUE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the attempted grand larceny counts should not have been dismissed or reduced based upon the grand jury evidence. The defendant was attempting to remove mail from a mailbox in which envelopes containing money orders had been planted by the police. There was no evidence any of the envelopes defendant had removed contained the planted money orders. The motion court reduced the grand larceny counts because it could not be proven defendant intended to steal property of a certain value. The First Department held that the intent requirement does not attach to the value element of the offense:

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The court erred in dismissing one count of the indictment, and reducing another, on the ground that the People were required to present proof of intent with regard to the property value elements of attempted grand larceny in the third and fourth degrees. These elements are strict liability aggravating factors when the completed crimes are charged. While the Penal Law definitions of attempt (Penal Law § 110.00) and intentionally (Penal Law § 15.05[1]) may be susceptible to the interpretation accorded them by the motion court, any ambiguity has been resolved by the Court of Appeals’ holding in People v Miller (87 NY2d 211 [1995]), that a strict liability aggravating factor of a completed crime is not a “result” to which an intent requirement attaches when an attempt to commit the completed crime is charged. Accordingly, the mental culpability requirements for an attempt and a completed crime are identical… , and the court erred in finding that the attempted grand larceny charges required evidence of intent to steal property of a certain value. People v Deleon, 2018 NY Slip Op 00531,  First Dept 1-30-18

CRIMINAL LAW (INTENT REQUIREMENT OF ATTEMPTED GRAND LARCENY DOES NOT ATTACH TO THE VALUE OF THE PROPERTY, GRAND LARCENY COUNTS SHOULD NOT HAVE BEEN DISMISSED OR REDUCED BASED ON THE GRAND JURY EVIDENCE WHICH DID NOT INCLUDE EVIDENCE OF THE INTENT TO STEAL PROPERTY OF A CERTAIN VALUE (FIRST DEPT))/EVIDENCE (ATTEMPTED GRAND LARCENY, INTENT REQUIREMENT OF ATTEMPTED GRAND LARCENY DOES NOT ATTACH TO THE VALUE OF THE PROPERTY, GRAND LARCENY COUNTS SHOULD NOT HAVE BEEN DISMISSED OR REDUCED BASED ON THE GRAND JURY EVIDENCE WHICH DID NOT INCLUDE EVIDENCE OF THE INTENT TO STEAL PROPERTY OF A CERTAIN VALUE (FIRST DEPT))/GRAND LARCENY (ATTEMPTED GRAND LARCENY, INTENT REQUIREMENT OF ATTEMPTED GRAND LARCENY DOES NOT ATTACH TO THE VALUE OF THE PROPERTY, GRAND LARCENY COUNTS SHOULD NOT HAVE BEEN DISMISSED OR REDUCED BASED ON THE GRAND JURY EVIDENCE WHICH DID NOT INCLUDE EVIDENCE OF THE INTENT TO STEAL PROPERTY OF A CERTAIN VALUE (FIRST DEPT))/INTENT (CRIMINAL LAW, ATTEMPTED GRAND LARCENY, INTENT REQUIREMENT OF ATTEMPTED GRAND LARCENY DOES NOT ATTACH TO THE VALUE OF THE PROPERTY, GRAND LARCENY COUNTS SHOULD NOT HAVE BEEN DISMISSED OR REDUCED BASED ON THE GRAND JURY EVIDENCE WHICH DID NOT INCLUDE EVIDENCE OF THE INTENT TO STEAL PROPERTY OF A CERTAIN VALUE (FIRST DEPT))

POLICE OFFICER’S EXPECTATION THAT DEFENDANT WOULD BE ARRESTED DID NOT HAVE ANY BEARING ON WHETHER DEFENDANT WAS IN CUSTODY, MOTION TO SUPPRESS STATEMENT PROPERLY DENIED (FIRST DEPT).

The First Department determined defendant was not in custody at the time he made statements, despite the presence of several police officers and one officer’s expectation that defendant would be arrested. Therefore defendant’s motion to suppress the statements was properly denied:

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Although several officers were present, they did not have their guns drawn, did not handcuff or restrain defendant in any way, and did not otherwise create a coercive or police-dominated atmosphere … . A reasonable innocent person in defendant’s position would not have thought that he was in custody … , but rather “that the police were still in the process of gathering information about the alleged incident prior to taking any action” … . The officer’s expectation that defendant would be arrested, based on the victim’s complaint, was not conveyed to defendant. “A policeman’s unarticulated plan has no bearing on the question whether a suspect was in custody’ at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation” … . People v Clarke, 2018 NY Slip Op 00472, First Dept 1-25-18

CRIMINAL LAW (CUSTODY, SUPPRESSION OF STATEMENT, POLICE OFFICER’S EXPECTATION THAT DEFENDANT WOULD BE ARRESTED DID NOT HAVE ANY BEARING ON WHETHER DEFENDANT WAS IN CUSTODY, MOTION TO SUPPRESS STATEMENT PROPERLY DENIED (FIRST DEPT))/CUSTODY (CRIMINAL LAW, SUPPRESSION OF STATEMENT, POLICE OFFICER’S EXPECTATION THAT DEFENDANT WOULD BE ARRESTED DID NOT HAVE ANY BEARING ON WHETHER DEFENDANT WAS IN CUSTODY, MOTION TO SUPPRESS STATEMENT PROPERLY DENIED (FIRST DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW, STATEMENT, CUSTODY, POLICE OFFICER’S EXPECTATION THAT DEFENDANT WOULD BE ARRESTED DID NOT HAVE ANY BEARING ON WHETHER DEFENDANT WAS IN CUSTODY, MOTION TO SUPPRESS STATEMENT PROPERLY DENIED (FIRST DEPT))

YOUTHFUL OFFENDER DETERMINATION MUST BE MADE IN EVERY CASE WHERE DEFENDANT IS ELIGIBLE, CARE REMITTED FOR THAT DETERMINATION (SECOND DEPT).

The Second Department noted that the sentencing court did not make a youthful offender determination, which must be made in every case where a defendant is eligible. The matter was remitted for the determination:

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CPL 720.20(1) requires a court to make a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it … . Here, as the People correctly concede, the record does not demonstrate that the Supreme Court made such a determination. Accordingly, we vacate the sentence imposed, and remit the matter to the Supreme Court, Kings County, for resentencing after making this determination … . We express no opinion as to whether the court should afford youthful offender status to the defendant. People v Keizer, 2018 NY Slip Op 00438, Second Dept 1-24-18

CRIMINAL LAW (YOUTHFUL OFFENDER DETERMINATION MUST BE MADE IN EVERY CASE WHERE DEFENDANT IS ELIGIBLE, CARE REMITTED FOR THAT DETERMINATION (SECOND DEPT))/YOUTHFUL OFFENDER (CRIMINAL LAW, YOUTHFUL OFFENDER DETERMINATION MUST BE MADE IN EVERY CASE WHERE DEFENDANT IS ELIGIBLE, CARE REMITTED FOR THAT DETERMINATION (SECOND DEPT))/SENTENCING (CRIMINAL LAW, (YOUTHFUL OFFENDER DETERMINATION MUST BE MADE IN EVERY CASE WHERE DEFENDANT IS ELIGIBLE, CARE REMITTED FOR THAT DETERMINATION (SECOND DEPT))

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DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, reversing defendant’s conviction, determined defendant should have been allowed to present reverse Molineux evidence (evidence that defendant did not commit other robberies committed close in time to the charged robberies with a similar modus operandi) as well as a fingerprint card which would show the absence of a blemish on defendant’s palm which was described by one of the robbery victims. Defendant was denied his right to present a defense. With regard to the reverse Molineux evidence, the court wrote:

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Given defendant’s right to use reverse Molineux evidence, defense counsel sought to introduce two categories of evidence. First, counsel wanted to introduce the surveillance videos from the three robberies for which defendant was not on trial to show that he was not depicted in them: the jury was entitled to make its own assessment that the person sitting before them in the courtroom did not match the person shown in the three videos. There was no evidentiary rule that would have excluded the surveillance videos.

Second, defense counsel sought to introduce evidence that three witnesses from uncharged robberies had viewed lineups in which defendant participated, but had not identified him as the man who had robbed them. Had defense counsel presented the failure-to-identify testimony directly through each eyewitness, no evidentiary bar could have been raised: each eyewitness would have been qualified to say that he or she had viewed defendant in a lineup and that defendant was not the man who had robbed him or her. Had defense counsel been unable to find each of the eyewitnesses, or been otherwise unavailable to testify, and had instead sought only to introduce one or more of the failures to identify through the detective who had supervised the lineup, the detective’s testimony would have been hearsay. Counsel could have overcome the hearsay objection by showing that the identifications were admissible on constitutional grounds because they were reliable … . People v Montgomery, 2018 NY Slip Op 00351, First Dept 1-18-18

CRIMINAL LAW (EVIDENCE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT))/MOLINEUX (CRIMINAL LAW, EVIDENCE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT))/REVERSE MOLINEUX (CRIMINAL LAW, EVIDENCE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT))/THIRD PARTY CULPABILITY (CRIMINAL LAW, EVIDENCE,  DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT))/CONSTITUTIONAL LAW (CRIMINAL LAW, RIGHT TO PRESENT A DEFENSE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT))/DEFENSE, RIGHT TO PRESENT (CRIMINAL LAW, CONSTITUTIONAL LAW, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT))

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FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT).

The Third Department noted that a federal drug conspiracy conviction cannot be used as a predicate felony for a second felony offender adjudication and remitted for resentencing. The defendant had pled guilty to attempted criminal sale of a controlled substance and was sentenced to probation. When he violated the terms of probation he was sentenced to prison as a second felony offender. The Third Department noted that an illegal sentence issue need not be preserved for appeal by objection:

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Defendant … contends that his federal drug conspiracy conviction does not qualify as a predicate New York felony and, therefore, it cannot serve as a basis for his second felony drug offender adjudication. Although this claim is being raised for the first time on appeal, we find that the claim “falls within the narrow exception to our preservation rule permitting appellate review when a sentence’s illegality is readily discernible from the . . . record”… . In the special information charging a predicate offense, the People alleged that defendant was previously convicted in the US District Court for the Northern District of New York of conspiracy to distribute marihuana (21 USC §§ 841, 846). However, the Court of Appeals has determined that, “under New York’s ‘strict equivalency’ standard for convictions rendered in other jurisdictions, a federal conviction for conspiracy to commit a drug crime may not serve as a predicate felony for sentencing purposes” … . We therefore vacate the sentence and remit the matter to County Court for resentencing … . People v Sumter, 2018 NY Slip Op 00354, Third Dept 1-18-17

 

CRIMINAL LAW (PREDICATE FELONY, SENTENCING, FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION (THIRD DEPT))/SENTENCING (FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT))/PREDICATE FELONY (FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT))/SECOND FELONY OFFENDER (FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT))/FEDERAL DRUG CONSPIRACY (PREDICATE FELONY, FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT))/APPEALS (CRIMINAL LAW, ILLEGAL SENTENCE, (PREDICATE FELONY, FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT))

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JUVENILE DELINQUENCY PETITION JURISDICTIONALLY DEFECTIVE, PETITION ALLEGING UNLAWFUL POSSESSION OF A WEAPON DISMISSED (SECOND DEPT).

The Second Department, reversing Family Court, determined the juvenile delinquency petition was jurisdictionally defective and dismissed it:

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For the petition, or a count thereof, to be sufficient on its face, the factual part of the petition or of any supporting depositions must set forth sworn, nonhearsay allegations sufficient to establish, if true, every element of each crime charged and the alleged delinquent’s commission thereof … . Such allegations must be set forth in the petition and/or the supporting depositions … . The failure to comply with this requirement constitutes a nonwaivable jurisdictional defect that deprives the court of subject matter jurisdiction to entertain the petition or count … . Here, neither the petition nor the supporting deposition provided sworn, nonhearsay allegations as to the appellant’s age, which is an element of the crime of unlawful possession of weapons by persons under 16 … . Matter of Ricki I., 2018 NY Slip Op 00291, Second Dept 1-17-18

FAMILY LAW (JUVENILE DELINQUENCY PETITION JURISDICTIONALLY DEFECTIVE, PETITION ALLEGING UNLAWFUL POSSESSION OF A WEAPON DISMISSED (SECOND DEPT))/JUVENILE DELINQUENCY (FAMILY LAW, JUVENILE DELINQUENCY PETITION JURISDICTIONALLY DEFECTIVE, PETITION ALLEGING UNLAWFUL POSSESSION OF A WEAPON DISMISSED (SECOND DEPT))/CRIMINAL LAW (JUVENILE DELINQUENCY PETITION JURISDICTIONALLY DEFECTIVE, PETITION ALLEGING UNLAWFUL POSSESSION OF A WEAPON DISMISSED (SECOND DEPT))/WEAPON, UNLAWFUL POSSESSION (FAMILY LAW, JUVENILE DELINQUENCY PETITION JURISDICTIONALLY DEFECTIVE, PETITION ALLEGING UNLAWFUL POSSESSION OF A WEAPON DISMISSED (SECOND DEPT))

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UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE SECOND DEPT DETERMINED DEFENDANT PROVED HE WAS NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, applying a weight of the evidence analysis, determined the defendant had demonstrated he was not responsible for the criminal acts by reason mental disease or defect. Both the defense and the prosecution presented expert opinion evidence on the “not responsible by reason of mental disease or defect” affirmative defense. The Second Department found that the defense expert, who was experienced in forensic examinations (the prosecution expert was not) proved the affirmative defense by a preponderance of the evidence:

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In conducting our weight of the evidence review where a defendant relies solely upon the affirmative defense of mental disease or defect, we first determine whether a finding of not responsible by reason of mental disease or defect would have been reasonable. If we answer that question in the affirmative, then we must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence, and evaluate the strength of such conclusions in order to decide whether the defendant met his burden of proving the affirmative defense of mental disease or defect by the preponderance of evidence … .

Given the conflicting expert opinions, as well as the witness testimony and psychiatric records, a finding of not responsible by reason of mental disease or defect would have been reasonable. Weighing the opinion of the defense expert, who was an experienced forensic psychiatrist, against the opinion of the prosecution expert, a clinical neuropsychologist with limited experience in forensics, the defense expert’s opinion was more convincing, and entitled to more weight. The defense expert’s opinion better accounted for the witnesses’ testimony regarding their observations of the defendant’s increasingly bizarre behavior and onset of mental illness which began to exhibit itself just weeks before the incident, and continued during and after the incident until the defendant was hospitalized for psychiatric treatment. The defense expert’s opinion was further corroborated by the defendant’s subsequent psychiatric diagnosis and history. People v Hernandez-Beltre, 2018 NY Slip Op 00307, Second Dept 1-17-18

CRIMINAL LAW (EVIDENCE, MENTAL DISEASE OR DEFECT, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE SECOND DEPARTMENT DETERMINED DEFENDANT PROVED HE WAS NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, CONVICTION REVERSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW,  MENTAL DISEASE OR DEFECT, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE SECOND DEPARTMENT DETERMINED DEFENDANT PROVED HE WAS NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, CONVICTION REVERSED (SECOND DEPT))/EXPERT OPINION (CRIMINAL LAW, MENTAL DISEASE OR DEFECT, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE SECOND DEPARTMENT DETERMINED DEFENDANT PROVED HE WAS NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, CONVICTION REVERSED (SECOND DEPT))/MENTAL DISEASE OR DEFECT (CRIMINAL LAW, AFFIRMATIVE DEFENSE, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE SECOND DEPARTMENT DETERMINED DEFENDANT PROVED HE WAS NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, CONVICTION REVERSED (SECOND DEPT))/AFFIRMATIVE DEFENSE (CRIMINAL LAW, MENTAL DISEASE OR DEFECT, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE SECOND DEPARTMENT DETERMINED DEFENDANT PROVED HE WAS NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, CONVICTION REVERSED (SECOND DEPT))/APPEALS (CRIMINAL LAW, WEIGHT OF THE EVIDENCE, MENTAL DISEASE OR DEFECT, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE SECOND DEPARTMENT DETERMINED DEFENDANT PROVED HE WAS NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, CONVICTION REVERSED (SECOND DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, MENTAL DISEASE OR DEFECT, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE SECOND DEPARTMENT DETERMINED DEFENDANT PROVED HE WAS NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, CONVICTION REVERSED (SECOND DEPT))

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