You are here: / 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).

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:

​

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:

​

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:

​

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))

, ,

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:

​

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))

,

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:

​

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))

,

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:

​

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))

, ,

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:

​

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))

, ,

ENTIRE JURY PANEL SHOULD NOT HAVE BEEN DISMISSED BASED UPON AN INTERACTION BETWEEN ONE POTENTIAL JUROR AND DEFENDANT’S BROTHER, DNA EVIDENCE SHOULD NOT HAVE BEEN ADMITTED THROUGH A WITNESS THAT HAD NO CONNECTION WITH THE TESTING (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the entire first jury panel should not have been dismissed because of an interaction between one of the potential jurors and defendant’s brother. The decision dealt substantively with several other issues: (1) affirming the denial of defendant’s speedy trial motion; (2) finding the prosecution’s failure to produce the Miranda card was not a Rosario violation and an adverse inference jury charge was an appropriate sanction; and (3) finding that the DNA evidence introduced by a witness who did not participate in the testing procedures violated defendant’s right to confront the witnesses against him:

​

The Supreme Court granted the prosecutor’s application to dismiss the entire jury panel, concluding that the defendant’s brother had potentially tainted the entire panel. Significantly, the court did not first conduct an inquiry of the potential jurors as to what they had seen and as to whether they could remain impartial. Where, as here, a jury panel is “properly drawn and sworn to answer questions truthfully, there must be legal cause or a peremptory challenge to exclude a [prospective] juror” … . By dismissing the entire jury panel without questioning the ability of the individual prospective jurors to be fair and impartial … , the court deprived the defendant of a jury chosen “at random from a fair cross-section of the community” … .

​

… [T]he DNA profiles and reports produced from the testing of evidence recovered from the decedent’s home, including the defendant’s clothing, are testimonial, because such profiles and reports “were generated in aid of a police investigation of a particular defendant charged by an accusatory instrument and created for the purpose of substantively proving the guilt of [that] defendant,” and because all of the documents in the file of the Office of the Chief Medical Examiner refer to the defendant by name and label him a “suspect” … . … [T]he admission of such evidence violated the defendant’s confrontation right, because it was admitted upon the testimony of an analyst who did not perform, witness, or supervise the generation of the defendant’s DNA profile, or perform an independent analysis on the raw data … . People v Metellus, 2018 NY Slip Op 00312, Second Dept 1-17-18

 CRIMINAL LAW (ENTIRE JURY PANEL SHOULD NOT HAVE BEEN DISMISSED BASED UPON AN INTERACTION BETWEEN ONE POTENTIAL JUROR AND DEFENDANT’S BROTHER, DNA EVIDENCE SHOULD NOT HAVE BEEN ADMITTED THROUGH A WITNESS THAT HAD NO CONNECTION WITH THE TESTING (SECOND DEPT))/JURORS (CRIMINAL LAW, ENTIRE JURY PANEL SHOULD NOT HAVE BEEN DISMISSED BASED UPON AN INTERACTION BETWEEN ONE POTENTIAL JUROR AND DEFENDANT’S BROTHER, DNA EVIDENCE SHOULD NOT HAVE BEEN ADMITTED THROUGH A WITNESS THAT HAD NO CONNECTION WITH THE TESTING (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, DNA EVIDENCE SHOULD NOT HAVE BEEN ADMITTED THROUGH A WITNESS THAT HAD NO CONNECTION WITH THE TESTING (SECOND DEPT))/DNA (CRIMINAL LAW, DNA EVIDENCE SHOULD NOT HAVE BEEN ADMITTED THROUGH A WITNESS THAT HAD NO CONNECTION WITH THE TESTING (SECOND DEPT))/CONFRONTATION, RIGHT TO (CRIMINAL LAW, DNA EVIDENCE SHOULD NOT HAVE BEEN ADMITTED THROUGH A WITNESS THAT HAD NO CONNECTION WITH THE TESTING (SECOND DEPT))/CONSTITUTIONAL LAW (RIGHT TO CONFRONTATION, DNA EVIDENCE SHOULD NOT HAVE BEEN ADMITTED THROUGH A WITNESS THAT HAD NO CONNECTION WITH THE TESTING (SECOND DEPT))

, ,

COUNTY COURT SHOULD NOT HAVE THREATENED DEFENDANT WITH THE MAXIMUM SENTENCE SHOULD SHE GO TO TRIAL, PLEA VACATED, APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO RAISE ISSUE ON APPEAL, APPLICATION FOR WRIT OF CORAM NOBIS GRANTED (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea on a writ of coram nobis, determined County Court should not have threatened defendant with the maximum sentence should she go to trial and defendant’s former appellate counsel was ineffective for failing to bring that issue up on appeal:

​

During discussions regarding the People’s plea offer, the court initially advised the defendant that she faced a “total maximum [of] 60 years in state prison.” Although the court acknowledged that a “cumulative sentencing statute . . . would reduce that to probably between 30 and 40,” it later advised the defendant that “[i]f you are facing 60 years in state prison with all these counts of assault on a seven month old child then you need to discuss that offer very carefully with [defense counsel] and follow his advice.” After defense counsel advised the court that the defendant did not accept the People’s plea offer, the court told the defendant, “[t]hat’s fine. That’s what we do here. We do trials. A case like this I would almost rather have a trial than have a plea bargaining. If this is all true there is no [sentence] short of the maximum that’s appropriate that’s the problem with the case. If it isn’t true then the jury will so decide. That’s not up to me.” Later that afternoon, the defendant accepted the People’s plea offer … .

​

“In order to be valid, a plea of guilty must be entered voluntarily, knowingly, and intelligently”… . Although a court may properly comment during plea negotiations regarding a defendant’s sentencing exposure upon conviction after trial, it may not explicitly threaten to sentence a defendant to the maximum term upon conviction after trial … . Under the circumstances of this case, former appellate counsel was ineffective in failing to raise the issue that the defendant’s plea of guilty was coerced by the County Court’s comments … . Since the court’s remarks were impermissibly coercive, the defendant was entitled to vacatur of her plea of guilty. People v Sanabria, 2018 NY Slip Op 00316, Second Dept 1-17-18

CRIMINAL LAW (COUNTY COURT SHOULD NOT HAVE THREATENED DEFENDANT WITH THE MAXIMUM SENTENCE SHOULD SHE GO TO TRIAL, PLEA VACATED, APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO RAISE ISSUE ON APPEAL, APPLICATION FOR WRIT OF CORAM NOBIS GRANTED (SECOND DEPT))/GUILTY PLEA (VACATED, COUNTY COURT SHOULD NOT HAVE THREATENED DEFENDANT WITH THE MAXIMUM SENTENCE SHOULD SHE GO TO TRIAL, PLEA VACATED, APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO RAISE ISSUE ON APPEAL, APPLICATION FOR WRIT OF CORAM NOBIS GRANTED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, COUNTY COURT SHOULD NOT HAVE THREATENED DEFENDANT WITH THE MAXIMUM SENTENCE SHOULD SHE GO TO TRIAL, PLEA VACATED, APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO RAISE ISSUE ON APPEAL, APPLICATION FOR WRIT OF CORAM NOBIS GRANTED (SECOND DEPT))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, ATTORNEYS, APPEALS, COUNTY COURT SHOULD NOT HAVE THREATENED DEFENDANT WITH THE MAXIMUM SENTENCE SHOULD SHE GO TO TRIAL, PLEA VACATED, APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO RAISE ISSUE ON APPEAL, APPLICATION FOR WRIT OF CORAM NOBIS GRANTED (SECOND DEPT))/APPEALS (CRIMINAL LAW, WRIT OF CORAM NOBIS, INEFFECTIVE ASSISTANCE, COUNTY COURT SHOULD NOT HAVE THREATENED DEFENDANT WITH THE MAXIMUM SENTENCE SHOULD SHE GO TO TRIAL, PLEA VACATED, APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO RAISE ISSUE ON APPEAL, APPLICATION FOR WRIT OF CORAM NOBIS GRANTED (SECOND DEPT))/CORAM NOBIS, WRIT OF (CRIMINAL LAW, APPEALS, INEFFECTIVE ASSISTANCE, COUNTY COURT SHOULD NOT HAVE THREATENED DEFENDANT WITH THE MAXIMUM SENTENCE SHOULD SHE GO TO TRIAL, PLEA VACATED, APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO RAISE ISSUE ON APPEAL, APPLICATION FOR WRIT OF CORAM NOBIS GRANTED (SECOND DEPT))

, ,

APPEAL OF SORA RISK ASSESSMENT NOT PROPERLY BEFORE THE APPELLATE DIVISION, COUNTY COURT NEVER ISSUED THE REQUIRED ORDER (THIRD DEPT).

The Third Department determined the appeal of the SORA risk assessment was not properly before it because County Court never issued the required order:

​

County Court, in a bench decision, adopted the People’s arguments regarding both the override and the assessment of additional points, denied defendant’s request for a downward departure and classified defendant as a risk level three sex offender. …

​

County Court is statutorily required to “render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based” … . The resulting order “must be in writing”…  and, further, must be “entered and filed in the office of the clerk of the court where the action is triable”… . The record before this Court does not reflect that County Court issued a written order or that any such order subsequently was entered and filed. Although County Court indicated that its bench decision would “serve[] as the order of the [c]ourt,” a bench decision is neither a substitute for the required written order nor an appealable paper … . Notably, neither the transcript of the court’s bench decision nor the standard form designating defendant’s risk level classification, the latter of which County Court signed and dated, contains the “so ordered” language required “so as to constitute an appealable order” … . Absent evidence of the required written order, this appeal is not properly before us and must be dismissed … . People v Scott, 2018 NY Slip Op 00203, Third Dept 1-11-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), APPEAL OF SORA RISK ASSESSMENT NOT PROPERLY BEFORE THE APPELLATE DIVISION, COUNTY COURT NEVER ISSUED THE REQUIRED ORDER (THIRD DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (APPEAL OF SORA RISK ASSESSMENT NOT PROPERLY BEFORE THE APPELLATE DIVISION, COUNTY COURT NEVER ISSUED THE REQUIRED ORDER (THIRD DEPT))/APPEALS (CRIMINAL LAW, SEX OFFENDER REGISTRATION ACT (SORA), APPEAL OF SORA RISK ASSESSMENT NOT PROPERLY BEFORE THE APPELLATE DIVISION, COUNTY COURT NEVER ISSUED THE REQUIRED ORDER (THIRD DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy