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DESPITE THE FAILURE TO RAISE THE ISSUE ON APPEAL, THE INCLUSORY CONCURRENT SECOND DEGREE MURDER COUNTS MUST BE DISMISSED BASED UPON THE FIRST DEGREE MURDER CONVICTION (THIRD DEPT).

The Third Department determined that defendant’s second degree murder counts were lesser inclusory counts of first degree murder. Therefore the second degree murder counts should have been dismissed upon the first degree murder conviction. The fact that this issue was not raised below or on appeal did not preclude dismissal by the appellate court:

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… [A]lthough not raised by either party, modification of the judgment is required. “With respect to inclusory concurrent counts, . . . [a] verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted” (CPL 300.40 [3] [b]). The two counts of murder in the second degree upon which defendant was convicted are inclusory concurrent counts of the count of murder in the first degree upon which he was also convicted … . Consequently, defendant’s convictions of murder in the second degree must be reversed and the respective counts of the indictment dismissed. People v Davis, 2017 NY Slip Op 08214, Third Dept 11-22-17

 

CRIMINAL LAW (DESPITE THE FAILURE TO RAISE THE ISSUE ON APPEAL, THE INCLUSORY CONCURRENT SECOND DEGREE MURDER COUNTS MUST BE DISMISSED BASED UPON THE FIRST DEGREE MURDER CONVICTION (THIRD DEPT))APPEALS (CRIMINAL LAW, DESPITE THE FAILURE TO RAISE THE ISSUE ON APPEAL, THE INCLUSORY CONCURRENT SECOND DEGREE MURDER COUNTS MUST BE DISMISSED BASED UPON THE FIRST DEGREE MURDER CONVICTION (THIRD DEPT))/INCLUSORY CONCURRENT COUNTS (CRIMINAL LAW, DESPITE THE FAILURE TO RAISE THE ISSUE ON APPEAL, THE INCLUSORY CONCURRENT SECOND DEGREE MURDER COUNTS MUST BE DISMISSED BASED UPON THE FIRST DEGREE MURDER CONVICTION (THIRD DEPT))

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DEFENDANT WAS TOLD HE COULD APPEAL THE DENIAL OF HIS SPEEDY TRIAL MOTION AFTER ENTERING A GUILTY PLEA, WRONG ADVICE WARRANTED VACATING THE PLEA (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined that wrong advice about his ability to appeal the denial of his speedy trial motion warranted reversal:

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A defendant who has entered a plea of guilty “forfeit[s] his [or her] right to claim that he [or she] was deprived of a speedy trial under CPL 30.30″… .However, where, as here, the assurance on which a defendant’s plea was predicated is ineffectual to preserve the right to appeal, he or she is entitled, if he or she wishes, to withdraw the plea of guilty … .

Here, it is clear from the record that the defendant pleaded guilty in reliance upon a promise from the Supreme Court that, upon his plea of guilty, he would retain the right to appeal the denial of his motion to dismiss the indictment pursuant to CPL 30.30. However, that promise could not be fulfilled …. Since the defendant is entitled to withdraw his plea of guilty … , the judgment of conviction must be reversed, his plea vacated, and the matter remitted … . People v Smith, 2017 NY Slip Op 08288, Second Dept 11-22-17

 

CRIMINAL LAW (GUILTY PLEAS, DEFENDANT WAS TOLD HE COULD APPEAL THE DENIAL OF HIS SPEEDY TRIAL MOTION AFTER ENTERING A GUILTY PLEA, WRONG ADVICE WARRANTED VACATING THE PLEA (SECOND DEPT))/APPEALS (CRIMINAL LAW, GUILTY PLEAS, DEFENDANT WAS TOLD HE COULD APPEAL THE DENIAL OF HIS SPEEDY TRIAL MOTION AFTER ENTERING A GUILTY PLEA, WRONG ADVICE WARRANTED VACATING THE PLEA (SECOND DEPT))/GUILTY PLEA, VACATION OF (APPEALS,  DEFENDANT WAS TOLD HE COULD APPEAL THE DENIAL OF HIS SPEEDY TRIAL MOTION AFTER ENTERING A GUILTY PLEA, WRONG ADVICE WARRANTED VACATING THE PLEA (SECOND DEPT))

OFFICER’S PURSUIT, FORCIBLE STOP, DETENTION AND ARREST OF FLEEING DEFENDANT NOT JUSTIFIED, MOTION TO SUPPRESS STATEMENTS AND ITEMS SEIZED IN SEARCHES PROPERLY GRANTED (THIRD DEPT).

The Third Department determined defendant’s motion to suppress statements and seized property (from the search of his person and home) based upon an unjustified street stop was properly granted. Fifteen minutes after receiving a report that the victim of a robbery had found his stolen car, Deputy Mauser drove around the block in the vicinity of the stolen car and saw defendant “walking pretty fast” “with a purpose.” When Mauser activated his lights and got out of his car, the defendant fled and Mauser followed, forcibly stopped, detained and arrested him:

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In arguing that Mauser had, at least, a founded suspicion of criminality, the People rely heavily on defendant’s geographic proximity to the stolen vehicle. However, time and again, courts have held that geographic location, without more, is insufficient to sustain a suspicion of criminality … . Although Mauser testified that he arrived in the area 13 to 14 minutes after receiving the dispatch, the record is devoid of any indication that Mauser possessed information — such as the precise time that the vehicle was reported as found or how long it had been there prior to the report — that could lead to the reasonable inference that the person or persons involved in the theft of the vehicle might still be in the area. Nor does the record establish that Mauser was acting on reliable information identifying or describing the person suspected to have stolen the vehicle … . Rather, Mauser solely relied on defendant’s location in relation to the area in which the vehicle was reportedly found and the fact that he was walking at a brisk pace at 2:53 a.m. on a cold winter day. Together, these facts were insufficient to form a founded suspicion of criminality, so as to justify the common-law right to inquire … .

In any event, even if Mauser’s initial encounter with defendant was considered to be a level one stop or if Mauser were found to have possessed a founded suspicion that criminality was afoot to justify a level two stop, defendant had the constitutional right to be let alone and, by disregarding Mauser’s directive to stop, defendant did not elevate the level of suspicion to a reasonable suspicion that a crime had been, was being or was about to be committed… . While “[f]light, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit” … , the requisite additional facts supporting criminality were lacking here … . Accordingly, Mauser’s pursuit and forcible stop and detention of defendant were improper, and County Court properly suppressed the physical evidence found on defendant’s person and in his home, as well as any statements he made to police … . People v Rose, 2017 NY Slip Op 08217, Third Dept 11-22-17

 

CRIMINAL LAW (STREET STOPS, OFFICER’S PURSUIT, FORCIBLE STOP, DETENTION AND ARREST OF FLEEING DEFENDANT NOT JUSTIFIED, MOTION TO SUPPRESS STATEMENTS AND ITEMS SEIZED IN SEARCHES PROPERLY GRANTED (THIRD DEPT))/STREET STOPS (CRIMINAL LAW, OFFICER’S PURSUIT, FORCIBLE STOP, DETENTION AND ARREST OF FLEEING DEFENDANT NOT JUSTIFIED, MOTION TO SUPPRESS STATEMENTS AND ITEMS SEIZED IN SEARCHES PROPERLY GRANTED (THIRD DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW, OFFICER’S PURSUIT, FORCIBLE STOP, DETENTION AND ARREST OF FLEEING DEFENDANT NOT JUSTIFIED, MOTION TO SUPPRESS STATEMENTS AND ITEMS SEIZED IN SEARCHES PROPERLY GRANTED (THIRD DEPT))’SEARCH AND SEIZURE (STREET STOPS, MOTION TO SUPPRESS, OFFICER’S PURSUIT, FORCIBLE STOP, DETENTION AND ARREST OF FLEEING DEFENDANT NOT JUSTIFIED, MOTION TO SUPPRESS STATEMENTS AND ITEMS SEIZED IN SEARCHES PROPERLY GRANTED (THIRD DEPT))

COUNTY COURT DID NOT HAVE STATUTORY AUTHORITY TO IMPOSE INCARCERATION FOR VIOLATION OF THE TERMS OF A CONDITIONAL DISCHARGE, DEFENDANT HAD COMPLETED HIS ONE YEAR DEFINITE SENTENCE OF INCARCERATION FOR FELONY DWI AND WAS IN THE CONSECUTIVE PERIOD OF CONDITIONAL DISCHARGE WHEN HE DROVE WITHOUT AN IGNITION INTERLOCK DEVICE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Aarons, reversing County Court, determined defendant, who had completed his one-year definite sentence for felony DWI, could not be sentenced to further incarceration for violating the terms of the conditional discharge by driving without an ignition interlock device:

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Defendant served the one-year jail term and … served it first. …[D]efendant did not serve part of his one-year sentence; rather, he completed the entirety of that definite sentence. Because of the statutory command of Penal Law § 60.21, the conditional discharge period had to run consecutively to the period of incarceration and, therefore, commenced upon his release from jail. It was during the time following defendant’s completion of the one-year definite sentence that he admittedly operated a vehicle without an ignition interlock device and violated the terms of the conditional discharge. The statutory framework governing sentencing does not cover these factual circumstances. The enactment of Penal Law § 60.21 spawned the type of sentence that was imposed upon defendant in 2013 for his DWI conviction — i.e., a definite term of incarceration with a period of conditional discharge to run consecutively. There were, however, no corresponding statutes or amendments to already existing statutes that delineated the type of sanctions that courts could impose in a case such as this one. * * *

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“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 as done by County Court and as advocated by the People. Accordingly, defendant’s sentence of 2 to 6 years followed by three years of conditional discharge must be vacated. People v Coon, 2017 NY Slip Op 08216, Third Dept 11-22-17

 

CRIMINAL LAW (COUNTY COURT DID NOT HAVE STATUTORY AUTHORITY TO IMPOSE INCARCERATION FOR VIOLATION OF THE TERMS OF A CONDITIONAL DISCHARGE, DEFENDANT HAD COMPLETED HIS ONE YEAR DEFINITE SENTENCE OF INCARCERATION FOR FELONY DWI AND WAS IN THE CONSECUTIVE PERIOD OF CONDITIONAL DISCHARGE WHEN HE DROVE WITHOUT AN IGNITION INTERLOCK DEVICE (THIRD DEPT))/SENTENCING (CRIMINAL LAW, COUNTY COURT DID NOT HAVE STATUTORY AUTHORITY TO IMPOSE INCARCERATION FOR VIOLATION OF THE TERMS OF A CONDITIONAL DISCHARGE, DEFENDANT HAD COMPLETED HIS ONE YEAR DEFINITE SENTENCE OF INCARCERATION FOR FELONY DWI AND WAS IN THE CONSECUTIVE PERIOD OF CONDITIONAL DISCHARGE WHEN HE DROVE WITHOUT AN IGNITION INTERLOCK DEVICE (THIRD DEPT))/CONDITIONAL DISCHARGE (CRIMINAL LAW, COUNTY COURT DID NOT HAVE STATUTORY AUTHORITY TO IMPOSE INCARCERATION FOR VIOLATION OF THE TERMS OF A CONDITIONAL DISCHARGE, DEFENDANT HAD COMPLETED HIS ONE YEAR DEFINITE SENTENCE OF INCARCERATION FOR FELONY DWI AND WAS IN THE CONSECUTIVE PERIOD OF CONDITIONAL DISCHARGE WHEN HE DROVE WITHOUT AN IGNITION INTERLOCK DEVICE (THIRD DEPT))

VIOLATION OF PROBATION PETITION FACIALLY INSUFFICIENT, TIME, PLACE AND MANNER OF ALLEGED VIOLATIONS NOT STATED (CT APP).

The Court of Appeals, reversing the appellate division, determined the violation of probation petition was insufficient on its face and should have been dismissed:

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County Court determined that defendant violated the terms of his probation, which prohibited him from associating with any convicted criminals, when on four occasions he picked up and walked the dog he once shared with his former intimate partner, who had a DWI misdemeanor conviction. The amended violation of probation petition, which listed four dates on which defendant allegedly “had contact with” a convicted criminal, but did not include any additional information, was facially insufficient as it did not comport with the statutory requirement of providing probationer with the time, place, and manner of the alleged violation (CPL 410.70). Here, the defect in the amended petition was not cured by defendant’s questions posed to the court at the prior arraignment, the substance of which indicated that he did not have notice of the manner in which he allegedly violated a condition of his probation. People v Kislowski, 2017 NY Slip Op 08169, CtApp 11-21-17

 

CRIMINAL LAW (VIOLATION OF PROBATION PETITION FACIALLY INSUFFICIENT, TIME, PLACE AND MANNER OF ALLEGED VIOLATIONS NOT STATED (CT APP))/VIOLATION OF PROBATION  (VIOLATION OF PROBATION PETITION FACIALLY INSUFFICIENT, TIME, PLACE AND MANNER OF ALLEGED VIOLATIONS NOT STATED (CT APP))/PROBATION (CRIMINAL LAW, VIOLATION OF PROBATION PETITION FACIALLY INSUFFICIENT, TIME, PLACE AND MANNER OF ALLEGED VIOLATIONS NOT STATED (CT APP))

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IN DENYING DEFENDANT’S MOTIONS FOR FRYE HEARINGS, THE TRIAL COURT PROPERLY RELIED ON THE RESULTS OF FRYE HEARINGS IN OTHER COURTS OF COORDINATE JURISDICTION CONCERNING LCN AND FST DNA TESTING (FIRST DEPT).

The First Department noted that the trial court’s denial of a Frye hearing about DNA testing was properly denied based upon the results of an eight-month long Frye hearing on the same issues in a court of coordinate jurisdiction:

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The motion court’s pretrial ruling … denying defendant’s motion to exclude, or alternatively to conduct a Frye … hearing on, expert testimony relating to high sensitivity, or low copy number (LCN) DNA testing, was a provident exercise of discretion. At the time that the motion court’s ruling was made, a court of coordinate jurisdiction, following an eight-month Frye hearing, had issued a decision holding that LCN DNA testing was “generally accepted as reliable in the forensic scientific community” and “not a novel scientific procedure” … . “A court need not hold a Frye hearing where it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony” … . …

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Likewise, the trial court’s denial of defendant’s renewed motion for a Frye hearing … , which motion was recast to include evidence relating to both LCN DNA testing and a then-recently issued FST DNA testing report, was a provident exercise of discretion. The trial court’s ruling was consistent with prior determinations of courts of coordinate jurisdiction that these procedures were not novel scientific techniques and were generally accepted by the relevant scientific community … . People v Gonzalez, 2017 NY Slip Op 08191, First Dept 11-21-17

 

CRIMINAL LAW (EVIDENCE, FRYE HEARINGS, DNA TESTING, IN DENYING DEFENDANT’S MOTIONS FOR FRYE HEARINGS, THE TRIAL COURT PROPERLY RELIED ON THE RESULTS OF FRYE HEARINGS IN OTHER COURTS OF COORDINATE JURISDICTION CONCERNING LCN AND FST DNA TESTING (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, FRYE HEARINGS, DNA TESTING, IN DENYING DEFENDANT’S MOTIONS FOR FRYE HEARINGS, THE TRIAL COURT PROPERLY RELIED ON THE RESULTS OF FRYE HEARINGS IN OTHER COURTS OF COORDINATE JURISDICTION CONCERNING LCN AND FST DNA TESTING (FIRST DEPT))/FRYE HEARINGS (CRIMINAL LAW DNA TESTING, IN DENYING DEFENDANT’S MOTIONS FOR FRYE HEARINGS, THE TRIAL COURT PROPERLY RELIED ON THE RESULTS OF FRYE HEARINGS IN OTHER COURTS OF COORDINATE JURISDICTION CONCERNING LCN AND FST DNA TESTING (FIRST DEPT))/DNA (CRIMINAL LAW, FRYE HEARINGS, IN DENYING DEFENDANT’S MOTIONS FOR FRYE HEARINGS, THE TRIAL COURT PROPERLY RELIED ON THE RESULTS OF FRYE HEARINGS IN OTHER COURTS OF COORDINATE JURISDICTION CONCERNING LCN AND FST DNA TESTING (FIRST DEPT))

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DEFENDANT WAS TOLD HE COULD APPEAL THE DENIAL OF HIS SPEEDY TRIAL MOTION AFTER ENTERING A GUILTY PLEA, WRONG ADVICE WARRANTED VACATING THE PLEA DESPITE FAILURE TO PRESERVE THE ARGUMENT (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined the wrong advice about whether defendant could appeal after pleading guilty warranted reversal, despite the failure to preserved the error. Defendant was told he could appeal the denial of his speedy trial motion:

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A defendant forfeits his right to appellate review of a CPL 30.30 motion upon a guilty plea … . However, here, the record is clear that the court misadvised defendant that he could pursue his 30.30 claim on appeal of a guilty plea … . Neither the defense counsel nor the prosecutor corrected the court’s misadvice. Moreover, defendant accepted a lengthier sentence, and declined to replead to a different offense with a shorter prison sentence, based on this misstatement that his 30.30 claim could be raised on appeal. Under the totality of these circumstances, defendant’s plea is vacated and the matter remanded … . As defendant had no practical ability to object to the error because he was sentenced on the date the misstatement occurred, … , he was not required to preserve his argument. People v Sanchez, 2017 NY Slip Op 08193, First Dept 11-21-17

 

CRIMINAL LAW (DEFENDANT WAS TOLD HE COULD APPEAL THE DENIAL OF HIS SPEEDY TRIAL MOTION AFTER ENTERING A GUILTY PLEA, WRONG ADVICE WARRANTED VACATING THE PLEA DESPITE FAILURE TO PRESERVE THE ARGUMENT (FIRST DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT WAS TOLD HE COULD APPEAL THE DENIAL OF HIS SPEEDY TRIAL MOTION AFTER ENTERING A GUILTY PLEA, WRONG ADVICE WARRANTED VACATING THE PLEA DESPITE FAILURE TO PRESERVE THE ARGUMENT (FIRST DEPT))/GUILTY PLEA, VACATION OF (DEFENDANT WAS TOLD HE COULD APPEAL THE DENIAL OF HIS SPEEDY TRIAL MOTION AFTER ENTERING A GUILTY PLEA, WRONG ADVICE WARRANTED VACATING THE PLEA DESPITE FAILURE TO PRESERVE THE ARGUMENT (FIRST DEPT))

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FAILURE TO INSTRUCT THE JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE REMAINING CHARGES IS REVERSIBLE ERROR, DESPITE THE FAILURE TO PRESERVE THE ERROR (FIRST DEPT).

The First Department, reversing defendant’s conviction, noted the jury should have been informed that an acquittal on the top count (second degree murder) based on the justification defense required an acquittal on the remaining charges. The defendant was convicted of manslaughter. Although the error was not preserved for appeal, the court exercised its interest of justice jurisdiction:

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As in cases such as People v Velez (131 AD3d 129 [1st Dept 2015]), the court’s charge failed to convey that an acquittal on the top count of second-degree murder based on a finding of justification would preclude consideration of the remaining charges. We find that this error was not harmless and warrants reversal in the interest of justice … . People v Santiago, 2017 NY Slip Op 08190, First Dept 11-21-17

 

CRIMINAL LAW (FAILURE TO INSTRUCT THE JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE REMAINING CHARGES IS REVERSIBLE ERROR, DESPITE THE FAILURE TO PRESERVE THE ERROR (FIRST DEPT))/APPEALS (CRIMINAL LAW, FAILURE TO INSTRUCT THE JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE REMAINING CHARGES IS REVERSIBLE ERROR, DESPITE THE FAILURE TO PRESERVE THE ERROR (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, JUSTIFICATION DEFENSE, FAILURE TO INSTRUCT THE JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE REMAINING CHARGES IS REVERSIBLE ERROR, DESPITE THE FAILURE TO PRESERVE THE ERROR (FIRST DEPT))/JUSTIFICATION DEFENSE (CRIMINAL LAW, JURY INSTRUCTIONS, FAILURE TO INSTRUCT THE JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE REMAINING CHARGES IS REVERSIBLE ERROR, DESPITE THE FAILURE TO PRESERVE THE ERROR (FIRST DEPT))

TRIAL JUDGE DID NOT INQUIRE INTO DEFENDANT’S SERIOUS REQUEST FOR ANOTHER ATTORNEY, CONVICTION REVERSED AND NEW TRIAL ORDERED (CT APP).

The Court of Appeals reversed defendant’s conviction and ordered a new trial because the trial judge did not conduct a sufficient inquiry into defendant’s request for another attorney:

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We agree with defendant that the trial court failed to adequately inquire into his “seemingly serious request[]” to substitute counsel … . Defendant’s request was supported by “specific factual allegations of ‘serious complaints about counsel'” … , and a “minimal inquiry” into “the nature of the disagreement or its potential for resolution” was warranted … . Accordingly, the trial court abused its discretion by failing to conduct such an inquiry. People v Smith, 2017 NY Slip Op 08165, CtApp 11-21-17

Similar issue and result in People v Dodson, 2017 NY Slip Op 08171, CtApp 11-21-17

CRIMINAL LAW (ATTORNEYS, TRIAL JUDGE DID NOT INQUIRE INTO DEFENDANT’S SERIOUS REQUEST FOR ANOTHER ATTORNEY, CONVICTION REVERSED AND NEW TRIAL ORDERED (CT APP))/ATTORNEYS (CRIMINAL LAW,  TRIAL JUDGE DID NOT INQUIRE INTO DEFENDANT’S SERIOUS REQUEST FOR ANOTHER ATTORNEY, CONVICTION REVERSED AND NEW TRIAL ORDERED (CT APP))

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GEORGIA BURGLARY STATUTE WAS EQUIVALENT TO A NEW YORK VIOLENT FELONY DESPITE THE ABSENCE OF AN EXPLICIT INTENT ELEMENT BECAUSE THE LESSER INCLUDED OFFENSE OF CRIMINAL TRESPASS INCLUDED A KNOWINGLY ELEMENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the appellate division, over a two-judge concurring opinion, determined a Georgia burglary statute was equivalent to a New York violent felony and therefore defendant was properly sentenced as and second violent felony offender. The Georgia statute does not explicitly include intent as an element. However, a lesser included offense (the Georgia criminal trespass statute) in the Georgia includes a “knowingly” element:

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Under Georgia statutory law, “[a] crime is included in another crime” … — i.e., a crime is a lesser included offense of another crime — when, among other things, “[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged” … . …

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Georgia statutory law further provides that “[a] person commits the offense of criminal trespass when he or she knowingly and without authority . . . [e]nters upon the land or premises of another person . . . for an unlawful purpose” … . Georgia case law, in turn, provides that criminal trespass is (and was at the time defendant violated the subject Georgia statute) a lesser included offense of burglary … . Inasmuch as the “lesser” Georgia crime of criminal trespass contains a “knowingly” mens rea … , the “entry” component of the “greater” Georgia burglary statute in question … necessarily must have a culpable mental state of at least “knowingly.” In other words, the mental state for the greater crime logically cannot be less than the mental state for the lesser crime and, for the foregoing reasons, we conclude that the Georgia crime corresponds to a New York violent felony … . People v Helms, 2017 NY Slip Op 08160, CtApp 11-20-17

 

CRIMINAL LAW (GEORGIA BURGLARY STATUTE WAS EQUIVALENT TO A NEW YORK VIOLENT FELONY DESPITE THE ABSENCE OF AN EXPLICIT INTENT ELEMENT BECAUSE THE LESSER INCLUDED OFFENSE OF CRIMINAL TRESPASS INCLUDED A KNOWINGLY ELEMENT (CT APP))/SENTENCING (SECOND VIOLENT FELONY OFFENDER, GEORGIA BURGLARY STATUTE WAS EQUIVALENT TO A NEW YORK VIOLENT FELONY DESPITE THE ABSENCE OF AN EXPLICIT INTENT ELEMENT BECAUSE THE LESSER INCLUDED OFFENSE OF CRIMINAL TRESPASS INCLUDED A KNOWINGLY ELEMENT (CT APP))/SECOND VIOLENT FELONY OFFENDER (SENTENCING, GEORGIA BURGLARY STATUTE WAS EQUIVALENT TO A NEW YORK VIOLENT FELONY DESPITE THE ABSENCE OF AN EXPLICIT INTENT ELEMENT BECAUSE THE LESSER INCLUDED OFFENSE OF CRIMINAL TRESPASS INCLUDED A KNOWINGLY ELEMENT (CT APP))/

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