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JUROR DID NOT REVEAL DURING VOIR DIRE SHE HAD APPLIED FOR A JOB IN THE DISTRICT ATTORNEY’S OFFICE TWO DAYS BEFORE, DEFENDANT WAS DEPRIVED OF AN IMPARTIAL JURY, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, reversing Supreme Court, determined defendant’s motion to vacate his conviction should have been granted. After the trial the prosecutor informed the court that a juror in defendant’s trial had applied for a job at the district attorney’s office two days before jury selection but did not disclose the application during voir dire. Ultimately the juror was hired by the district attorney’s office. Although the juror had prior experience on the prosecution side, her position at the time of trial involved white collar criminal defense. Defense counsel stated at the hearing that the juror was chosen because of her criminal defense work and, had defense counsel been aware the juror had applied for work in the district attorney’s office, the juror would have been struck:

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Here, due to the juror’s concealment of material information regarding her job application, which also demonstrated a predisposition in favor of the prosecution, defendant was deprived of an impartial jury comprised of 12 jurors whom he had selected and approved through voir dire. In fact, defendant was tried by only 11 jurors whom he truly selected and approved; this violated his constitutional right to a jury of 12 of his own choice in a criminal case … . He was also deprived of exercising the various safeguards put into place by our legislature. As defense counsel testified, had the juror timely disclosed this information he would have moved to strike her for cause, and if unsuccessful would have exercised a peremptory challenge against her … While we recognize that there is no rule requiring automatic reversal in these situations … , since the verdict was not returned by a fair and impartial jury and we find the juror would have been subject to removal for cause, we agree with defendant that he was denied a fair trial on the ground that he was not tried by a jury of his own choice. We thus remand for a new trial. Critically, the juror remaining on the jury was prejudicial to defendant because he was ultimately convicted by the jury. People v Southall, 2017 NY Slip Op 08344, First Dept 11-28-17

 

CRIMINAL LAW (JUROR DID NOT REVEAL DURING VOIR DIRE SHE HAD APPLIED FOR A JOB IN THE DISTRICT ATTORNEY’S OFFICE TWO DAYS BEFORE, DEFENDANT WAS DEPRIVED OF AN IMPARTIAL JURY, NEW TRIAL ORDERED (FIRST DEPT))/JURIES (CRIMINAL LAW, JUROR DID NOT REVEAL DURING VOIR DIRE SHE HAD APPLIED FOR A JOB IN THE DISTRICT ATTORNEY’S OFFICE TWO DAYS BEFORE, DEFENDANT WAS DEPRIVED OF AN IMPARTIAL JURY, NEW TRIAL ORDERED (FIRST DEPT))

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ORDER THAT THE PATIENT INMATE SHOULD BE TREATED WITH A PARTICULAR DRUG FOR SCHIZOPHRENIA OVER HIS OBJECTION SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, ORDER ALLOWING ALTERNATIVE DRUGS, AND A NONDURATIONAL ORDER NOT SUPPORTED (SECOND DEPT).

The Second Department determined clear and convincing evidence supported the finding that the patient (Radcliffe M.) was unable to make treatment decisions for himself and that a particular medication for schizophrenia should be administered over the patient’s objection. However, the evidence did not support the findings that certain alternative drugs could be administered or that the order should be nondurational (no termination date):

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The State may administer a course of medical treatment against a patient’s will if it establishes, by clear and convincing evidence, that the patient lacks the capacity to make a reasoned decision with respect to proposed treatment … , and that “the proposed treatment is narrowly tailored to give substantive effect to the patient’s liberty interest, taking into consideration all relevant circumstances, including the patient’s best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatments”… . Whether a mentally ill patient has the capacity to make a reasoned decision with respect to treatment is a question of fact for the hearing court, the credibility findings of which are entitled to due deference… . Here, the petitioner established by clear and convincing evidence that Radcliffe M. lacks the capacity to make a reasoned decision with respect to continuing a course of treatment of Haldol Deconoate … . Further, the petitioner established by clear and convincing evidence that the proposed course of treatment with Haldol Deconoate was narrowly tailored to give substantive effect to Radcliffe M.’s liberty interest, taking into consideration all relevant circumstances, including his best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment, and any less intrusive alternative treatments … .

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However, the petitioner failed to offer any testimony or evidence at the hearing with respect to the additional medications included in the order as “Reasonable Alternatives” … . …

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A nondurational order is appropriate where it is established that treatment will allow the patient to become stabilized and restore the patient’s ability to make reasoned decisions regarding the management of his or her mental illness … . In such circumstances, “the order’s forcefulness will end as soon as [the patient] is no longer so incapacitated” … . The petitioner failed to establish that Radcliffe M.’s ability to make reasoned decisions regarding his own treatment will be restored with treatment and that a nondurational order would therefore be appropriate … . Matter of Radcliffe M., 2017 NY Slip Op 08270, Second Dept 11-22-17

 

MENTAL HYGIENE LAW (ORDER THAT THE PATIENT INMATE SHOULD BE TREATED WITH A PARTICULAR DRUG FOR SCHIZOPHRENIA OVER HIS OBJECTION SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, ORDER ALLOWING ALTERNATIVE DRUGS, AND A NONDURATIONAL ORDER NOT SUPPORTED (SECOND DEPT))/SCHIZOPHRENIA (MENTAL HYGIENE LAW, CRIMINAL LAW, ORDER THAT THE PATIENT INMATE SHOULD BE TREATED WITH A PARTICULAR DRUG FOR SCHIZOPHRENIA OVER HIS OBJECTION SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, ORDER ALLOWING ALTERNATIVE DRUGS, AND A NONDURATIONAL ORDER NOT SUPPORTED (SECOND DEPT))/CRIMINAL LAW (INMATES, ORDER THAT THE PATIENT INMATE SHOULD BE TREATED WITH A PARTICULAR DRUG FOR SCHIZOPHRENIA OVER HIS OBJECTION SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, ORDER ALLOWING ALTERNATIVE DRUGS, AND A NONDURATIONAL ORDER NOT SUPPORTED (SECOND DEPT))/INMATES (MENTAL HYGIENE LAW, ORDER THAT THE PATIENT INMATE SHOULD BE TREATED WITH A PARTICULAR DRUG FOR SCHIZOPHRENIA OVER HIS OBJECTION SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, ORDER ALLOWING ALTERNATIVE DRUGS, AND A NONDURATIONAL ORDER NOT SUPPORTED (SECOND DEPT))

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FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT).

The Second Department, reversing Family Court, found that the charged family offenses of aggravated harassment and assault third were not supported by proof of physical injury:

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… [T]he petitioner failed to establish by a fair preponderance of the evidence that the appellant committed the family offenses of aggravated harassment and assault in the third degree. Both of those family offenses require proof of physical injury, which is defined as “impairment of physical condition or substantial pain” … . Contrary to the Family Court’s determination, the evidence presented at the fact-finding hearing failed to adequately demonstrate that the petitioner suffered a physical injury as a result of the conduct alleged in the petition … . Since the court’s factual determinations were not supported by the record, we vacate the finding that the appellant committed the family offenses of aggravated harassment and assault in the third degree … .. Inasmuch as the petitioner has not raised any alternative grounds for affirmance of the order of protection … , under the circumstances, we reverse the order of protection, deny the family offense petition, and dismiss the proceeding … . Matter of Stanislaus v Stanislaus, 2017 NY Slip Op 08274, Second Dept 11-22-17

 

FAMILY LAW (FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT))/CRIMINAL LAW (FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT))/AGGRAVATED HARASSMENT  (FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT))/ASSAULT THIRD DEGREE  (FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT))/FAMILY OFFENSES (FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT))

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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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