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DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT).

The Third Department determined the state trooper properly stopped the defendant, which led to his arrest for DWI, because the defendant had his high beams on as he approached the trooper:

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Petitioner contends that the revocation of his driver’s license must be reversed because the trooper’s testimony at the revocation hearing was insufficient to establish that he violated Vehicle and Traffic Law § 375 (3), thereby rendering the traffic stop unlawful. We disagree. A police officer may lawfully execute a traffic stop of a vehicle when he or she has probable cause to believe that the driver of the vehicle has committed a violation of the Vehicle and Traffic Law … . Pursuant to Vehicle and Traffic Law § 375 (3), a driver shall operate his or her headlights in such a manner “that dazzling light does not interfere with the driver of [an] approaching vehicle.” To establish such a violation, it must be shown that the operator of the motor vehicle used his or her high beams within 500 feet of an approaching vehicle and that the use of such high beams interfered with the vision of that driver by “hampering or hindering [his or her] vision” … .

At the hearing, the trooper testified that he was traveling westbound … , when he observed petitioner’s vehicle approximately 500 feet away in the eastbound lane of travel with his high beams activated. The trooper testified that petitioner’s high beams caused “a glare to [his] vision” and affected his driving insofar as he had to “adjust [his] eyes.” In our view, such testimony sufficiently established that he had probable cause to believe that petitioner had committed a violation of the Vehicle and Traffic Law … and, together with the negative inference that the Appeals Board permissibly drew from petitioner’s failure to testify at the hearing … , we conclude that the determination was supported by substantial evidence … . Matter of Barr v New York State Dept. of Motor Vehicles, 2017 NY Slip Op 07664, Third Dept 11-2-17

 

CRIMINAL LAW (DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT))/VEHICLE AND TRAFFIC LAW (HIGH BEAMS, DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT))/TRAFFIC STOPS (DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT)/HIGH BEAMS (VEHICLE AND TRAFFIC LAW, DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT))/REVOCATION (DRIVER’S LICENSE, DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT))/DRIVER’S LICENSE (REVOCATION, DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT))REFUSAL (CHEMICAL TEST, DWI, DRIVER’S LICENSE REVOCATION, DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT))/DRIVING WHILE INTOXICATED (TRAFFIC STOP, REVOCATION HEARING, DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT))

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MOTION TO VACATE A CONVICTION CAN BE BASED UPON A SHOWING OF ACTUAL INNOCENCE, NOT SHOWN HERE (THIRD DEPT).

The Third Department determined defendant’s motion to vacate his conviction, in part on the ground of actual innocence, was properly denied. The court explained the standard of proof for actual innocence:

In People v Hamilton (115 AD3d 12 [2014]), the [2nd] Department determined that a claim of actual innocence must be established with clear and convincing evidence of “factual innocence, not mere legal insufficiency of evidence of guilt and must be based upon reliable evidence which was not presented at the trial” … . While we recognize that in People v Caldavado (26 NY3d 1034 [2015]) the Court of Appeals opted not to determine whether a freestanding claim of actual innocence is viable … , we concur with the analysis set forth in Hamilton and find that such a claim may be raised pursuant CPL 440.10 (1) (h) … . * * *

In our view, the evidence submitted at the hearing failed to establish by clear and convincing evidence that defendant did not murder the victims. Much of the evidence presented at the hearing was also presented to the jury, which considered and rejected defendant’s explanation, and the jury’s verdict was upheld on appeal … . At best, the additional evidence submitted in support of the motion to vacate arguably raised “[m]ere doubt as to the defendant’s guilt, or a preponderance of conflicting evidence as to the defendant’s guilt,” neither of which is sufficient to support a motion to vacate a judgment based on actual innocence … . People v Mosley, 2017 NY Slip Op 07648, Third Dept 11-2-17

CRIMINAL LAW (MOTION TO VACATE A CONVICTION CAN BE BASED UPON A SHOWING OF ACTUAL INNOCENCE, NOT SHOWN HERE (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, VACATE CONVICTION, ACTUAL INNOCENCE, MOTION TO VACATE A CONVICTION CAN BE BASED UPON A SHOWING OF ACTUAL INNOCENCE, NOT SHOWN HERE (THIRD DEPT))/VACATE CONVICTION, MOTION TO (ACTUAL INNOCENCE, MOTION TO VACATE A CONVICTION CAN BE BASED UPON A SHOWING OF ACTUAL INNOCENCE, NOT SHOWN HERE (THIRD DEPT))/ACTUAL INNOCENCE (CRIMINAL LAW, VACATE CONVICTION, MOTION TO VACATE A CONVICTION CAN BE BASED UPON A SHOWING OF ACTUAL INNOCENCE, NOT SHOWN HERE (THIRD DEPT))

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ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Taylor, over a dissent, reversing County Court, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should have been granted. Even though some of the ineffective assistance claims could be determined from the original record (and therefore should have been raised on appeal), because some of the claims could not be determined from the record, the court could consider all the ineffective assistance issues:

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… [W]e do not find that all of the alleged failures on the part of trial counsel involve matters adequately reflected in the record that could have been raised upon direct appeal. Defendant’s argument that trial counsel was ineffective for failing to impeach the cabdriver “is dependent upon [a] statement[] to the police that [is] outside the record” and, therefore, was properly raised in the context of the instant CPL 440.10 motion … . Defendant also faults trial counsel for failing to request that the crime of assault in the third degree … be submitted to the jury as a lesser included offense of assault in the second degree … . While it is apparent from the face of the record that counsel did not request submission of assault in the third degree as a lesser included offense, it is axiomatic that “the decision to request or consent to the submission of a lesser included offense is often based on strategic considerations, taking into account a myriad of factors, including the strength of the People’s case” … . Because defendant’s complaint about counsel in this regard is predicated on counsel’s strategy, or lack thereof, which is not discernable from the face of the record, we likewise find that this claim of ineffectiveness may properly be advanced by way of a CPL 440.10 motion … .

The two other allegations of ineffectiveness raised on the motion — that counsel failed to object to County Court’s Allen charge and failed to sufficiently articulate and support a request for an instruction on the defense of justification under Penal Law § 35.05 — are, as defendant concedes, based on matters that appear on the face of the record. Yet, relying on People v Maxwell (89 AD3d 1108 [2d Dept 2011]), defendant claims that these record-based allegations of ineffectiveness may appropriately be considered together with his nonrecord-based allegations in the context of this CPL 440.10 motion, thereby permitting review of his claim of ineffective assistance in its entirety. … [W]e agree. People v Taylor, 2017 NY Slip Op 07649, Third Dept 11-2-17

CRIMINAL LAW (MOTION TO VACATE CONVICTION, ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT))/VACATE CONVICTION, MOTION TO (INEFFECTIVE ASSISTANCE, ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, MOTION TO VACATE CONVICTION, ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT))/INEFFECTIVE ASSISTANCE (MOTION TO VACATE CONVICTION, ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT))

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EXCESSIVE INTERVENTION IN THE QUESTIONING OF DEFENDANT AND WITNESSES BY THE TRIAL JUDGE REQUIRED A NEW TRIAL, DEFENDANT SHOULD NOT HAVE BEEN QUESTIONED ABOUT HIS BEING INCARCERATED DURING THE TRIAL (SECOND DEPT).

The Second Department reversed defendant’s conviction in this murder case because the trial judge took over the questioning of one of the complaining witness and intervened in the questioning of the defendant. The court noted the prosecutor should not have questioned the defendant about his being incarcerated during the trial:

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During the course of the trial, the Supreme Court repeatedly and prejudicially questioned the defendant, who testified in his own behalf, and also extensively intervened in the questioning of prosecution witnesses. Although defense counsel did not specifically object to the court’s questioning of the witnesses … .

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While trial judges play a vital role in “clarifying confusing testimony and facilitating the orderly and expeditious progress of the trial,” their power to examine witnesses “is one that should be exercised sparingly” … . Indeed, such power “carries with it so many risks of unfairness that it should be a rare instance when the court rather than counsel examines a witness” … .

Here, the Supreme Court effectively took over the direct examination of one of the complaining witnesses at key moments in her testimony where she was describing how the defendant shot the victim … . Moreover, in its extensive questioning of the defendant, the court repeatedly highlighted apparent inconsistencies in the defendant’s testimony. Viewing the record as a whole, the court assumed the appearance, if not the function, of an advocate at the trial by its extensive examination of certain witnesses … . Accordingly, we must remit the matter to the Supreme Court, Kings County, for a new trial.

As a new trial must be ordered, we note that it was improper for the prosecutor to elicit from the defendant the fact that he was incarcerated pending trial … , as no legitimate State interest was served by disclosing that information under the circumstances of this case … . People v Estevez, 2017 NY Slip Op 07615, Second Dept 11-1-17

 

CRIMINAL LAW (EXCESSIVE INTERVENTION IN THE QUESTIONING OF DEFENDANT AND WITNESSES BY THE TRIAL JUDGE REQUIRED A NEW TRIAL, DEFENDANT SHOULD NOT HAVE BEEN QUESTIONED ABOUT HIS BEING INCARCERATED DURING THE TRIAL (SECOND DEPT))/JUDGES (CRIMINAL LAW, EXCESSIVE INTERVENTION IN THE QUESTIONING OF DEFENDANT AND WITNESSES BY THE TRIAL JUDGE REQUIRED A NEW TRIAL, DEFENDANT SHOULD NOT HAVE BEEN QUESTIONED ABOUT HIS BEING INCARCERATED DURING THE TRIAL (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, EXCESSIVE INTERVENTION IN THE QUESTIONING OF DEFENDANT AND WITNESSES BY THE TRIAL JUDGE REQUIRED A NEW TRIAL, DEFENDANT SHOULD NOT HAVE BEEN QUESTIONED ABOUT HIS BEING INCARCERATED DURING THE TRIAL (SECOND DEPT))

HOT PURSUIT JUSTIFIED WARRANTLESS ARREST IN DEFENDANT’S HOME (SECOND DEPT).

The Second Department determined defendant’s motion to suppress his statements based upon his warrantless arrest in the garage of his home was properly denied. Defendant had failed to stop, led the arresting officer on a high speed chase, and hid in the rafters of his garage:

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… [T]he People established that the detective’s entry was justified by the doctrine of hot pursuit. “[S]ubject only to carefully drawn and narrow exceptions, a warrantless search of an individual’s home is per se unreasonable and hence unconstitutional” … . However, “exigent circumstances or a true hot pursuit’ may justify a warrantless entry”… . “[A] criminal suspect may not thwart an otherwise proper arrest which has been set in motion in a public place by retreating into his residence”… . Here, the exigent circumstances justifying the hot pursuit of the defendant into his garage included the defendant’s observed erratic and dangerous driving, the crashing and abandoning of his vehicle, and the police officers’ peaceful entry through the open door of the garage … . People v Caputo, 2017 NY Slip Op 07614, Second Dept 11-1-17

 

CRIMINAL LAW (HOT PURSUIT JUSTIFIED WARRANTLESS ARREST IN DEFENDANT’S HOME (SECOND DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW, HOT PURSUIT JUSTIFIED WARRANTLESS ARREST IN DEFENDANT’S HOME (SECOND DEPT))/WARRANTLESS ARREST (HOT PURSUIT JUSTIFIED WARRANTLESS ARREST IN DEFENDANT’S HOME (SECOND DEPT))/PAYTON RULE (WARRANTLESS ARREST, HOT PURSUIT JUSTIFIED WARRANTLESS ARREST IN DEFENDANT’S HOME (SECOND DEPT))/HOT PURSUIT (WARRENTLESS ARREST, HOT PURSUIT JUSTIFIED WARRANTLESS ARREST IN DEFENDANT’S HOME (SECOND DEPT)

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WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT).

The Fourth Department determined the denial of youthful offender status was not appealable as it was encompassed by the waiver of appeal. The Fourth Department further determined the purported waiver of defendant’s Fourth Amendment rights as a condition of probation was not valid because there was no relationship between the waiver and the sexual-abuse offense to which defendant pled guilty. The invalid conditions allowed searches of his person, home and personal property, breath, blood and urine testing, and prohibited use or possession of alcohol:

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Defendant … contends that various conditions of his probation are not authorized by Penal Law § 65.10. We agree with defendant that his contention is not precluded by the waiver of the right to appeal and does not require preservation inasmuch as his challenges to those conditions implicate the legality of the sentence … . We agree with defendant that the document he signed requiring him to consent to waive his Fourth Amendment right protecting him from unreasonable searches and seizures of his person, home, and personal property, and to submit to chemical tests of his breath, blood, or urine, is not enforceable because it was not related to the probationary goal of rehabilitation … . The waiver and consent to search was ostensibly based on defendant’s acknowledgment that his criminal behavior was related to drug/alcohol abuse, but in fact there was no evidence that defendant was under the influence of alcohol or drugs when he committed the offense or had a history of drug or alcohol abuse … . For similar reasons, we agree with defendant that special condition nine of the conditions of probation, which required him to abstain from the use or possession of alcoholic beverages and to submit to appropriate alcohol testing, is also not enforceable and must be stricken. People v Saraceni, 2017 NY Slip Op 06732, Fourth Dept 9-29-17

CRIMINAL LAW (WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))/APPEALS (CRIMINAL LAW, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))/CONSTITUTIONAL LAW (PROBATION CONDITIONS, WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID (FOURTH DEPT))/SEARCH AND SEIZURE (PROBATION CONDITIONS, WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID (FOURTH DEPT))/PROBATION (WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))/WAIVER OF APPEAL (WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))/SEXUAL ABUSE (PROBATION CONDITIONS, WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))

DEFENDANT SUFFICIENTLY RAISED THE FIRST STEP OF A BATSON CHALLENGE TO A PEREMPTORY CHALLENGE EXERCISED BY THE PEOPLE, BUT THE NEXT STEPS IN THE BATSON PROCEDURE WERE NOT TAKEN, ALTHOUGH DEFENDANT WAS CONVICTED AFTER A JURY TRIAL, THE MATTER WAS REMITTED TO COMPLETE THE BATSON PROCEDURE (FOURTH DEPT). 

The Fourth Department determined defendant had adequately raised a Batson challenge to the prosecutor’s removal of a juror. Because the next steps in the Batson procedure were not taken the case was remitted for that purpose (after a jury trial and conviction):

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We agree with defendant that he met his initial burden on his Batson application by demonstrating that the prosecution exercised a peremptory challenge to remove a member of a cognizable racial group from the venire, “and that there exist facts and other relevant circumstances sufficient to raise an inference that the prosecution used its peremptory challenge[] to exclude [that] potential juror[] because of [her] race”… . We note that “the first-step burden in a Batson challenge is not intended to be onerous” … , and that the initial burden is met when ” the totality of the relevant facts gives rise to an inference of discriminatory purpose’ ” … . Here, defendant is African-American, and the first prospective juror to be peremptorily challenged by the People was the only African-American on the panel. Neither the People nor defendant asked any questions of the prospective juror at issue during voir dire, and County Court’s general questioning of the panel raised no issues that would distinguish her from the other prospective jurors. Inasmuch as there is a basis in the record to infer that the People exercised the peremptory challenge in a discriminatory manner, the burden shifted to the People to articulate a nondiscriminatory reason for striking the juror, and the court then should have determined whether the proffered reason was pretextual … . We therefore hold the case, reserve decision, and remit the matter to County Court for that purpose … . People v Davis, 2017 NY Slip Op 06790, Fourth Dept 9-29-17

CRIMINAL LAW (DEFENDANT SUFFICIENTLY RAISED THE FIRST STEP OF A BATSON CHALLENGE TO A PEREMPTORY CHALLENGE EXERCISED BY THE PEOPLE, BUT THE NEXT STEPS IN THE BATSON PROCEDURE WERE NOT TAKEN, ALTHOUGH DEFENDANT WAS CONVICTED AFTER A JURY TRIAL, THE MATTER WAS REMITTED TO COMPLETE THE BATSON PROCEDURE (FOURTH DEPT))/JURORS (CRIMINAL LAW, DEFENDANT SUFFICIENTLY RAISED THE FIRST STEP OF A BATSON CHALLENGE TO A PEREMPTORY CHALLENGE EXERCISED BY THE PEOPLE, BUT THE NEXT STEPS IN THE BATSON PROCEDURE WERE NOT TAKEN, ALTHOUGH DEFENDANT WAS CONVICTED AFTER A JURY TRIAL, THE MATTER WAS REMITTED TO COMPLETE THE BATSON PROCEDURE (FOURTH DEPT))/BATSON PROCEDURE (JURORS, DEFENDANT SUFFICIENTLY RAISED THE FIRST STEP OF A BATSON CHALLENGE TO A PEREMPTORY CHALLENGE EXERCISED BY THE PEOPLE, BUT THE NEXT STEPS IN THE BATSON PROCEDURE WERE NOT TAKEN, ALTHOUGH DEFENDANT WAS CONVICTED AFTER A JURY TRIAL, THE MATTER WAS REMITTED TO COMPLETE THE BATSON PROCEDURE (FOURTH DEPT))

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DEFENDANT SAID HE WOULD NOT GO TO THE POLICE STATION WITHOUT A PARENT OR AN ATTORNEY, THAT CONSTITUTED AN ASSERTION OF HIS RIGHT TO COUNSEL, SUBSEQUENT STATEMENT SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant had asserted his right to counsel by saying he would not go to the police station without a parent or an attorney. Therefore the motion to suppress the subsequent statement should have been granted. Before the defendant went to the station, the police, at defendant’s request, took the defendant to see a man defendant described as like a father to him. The man accompanied the police and defendant to the station and spoke with the defendant before the defendant waived his rights a made a statement:

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In People v Stroh (48 NY2d 1000, 1001), the defendant told the police that “he would like to have either an attorney or a priest to talk to, to have present.’ ” The Court held that, “[b]y making this request, [the defendant] asserted his right to counsel” (id.). We see no relevant distinction in the facts presented in this case, and we are therefore constrained to conclude that the statements made by defendant to the detective at the police station must be suppressed because defendant asserted his right to counsel. …

We conclude that the court’s error is not harmless inasmuch as there is a “reasonable possibility that the error might have contributed to defendant’s conviction” … . We therefore grant that part of the omnibus motion seeking to suppress the statements made by defendant at the police station … , and we grant a new trial … . People v Lewis, 2017 NY Slip Op 06776, Fourth Dept 9-29-17

 

CRIMINAL LAW (DEFENDANT SAID HE WOULD NOT GO TO THE POLICE STATION WITHOUT A PARENT OR AN ATTORNEY, THAT CONSTITUTED AN ASSERTION OF HIS RIGHT TO COUNSEL, SUBSEQUENT STATEMENT SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENDANT SAID HE WOULD NOT GO TO THE POLICE STATION WITHOUT A PARENT OR AN ATTORNEY, THAT CONSTITUTED AN ASSERTION OF HIS RIGHT TO COUNSEL, SUBSEQUENT STATEMENT SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, DEFENDANT SAID HE WOULD NOT GO TO THE POLICE STATION WITHOUT A PARENT OR AN ATTORNEY, THAT CONSTITUTED AN ASSERTION OF HIS RIGHT TO COUNSEL, SUBSEQUENT STATEMENT SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/SUPPRESSION (CRIMINAL LAW, STATEMENT, DEFENDANT SAID HE WOULD NOT GO TO THE POLICE STATION WITHOUT A PARENT OR AN ATTORNEY, THAT CONSTITUTED AN ASSERTION OF HIS RIGHT TO COUNSEL, SUBSEQUENT STATEMENT SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/RIGHT TO COUNSEL (CRIMINAL LAW, SUPPRESSION, DEFENDANT SAID HE WOULD NOT GO TO THE POLICE STATION WITHOUT A PARENT OR AN ATTORNEY, THAT CONSTITUTED AN ASSERTION OF HIS RIGHT TO COUNSEL, SUBSEQUENT STATEMENT SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))

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ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT).

The Third Department determined the fact that defendant was not required to register as a sex offender under the law of Washington state did not affect the requirement that he register in New York. The Full Faith and Credit Clause was not implicated:

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Defendant argues that requiring him to register in New York when a Washington court order relieved him of the obligation to register in that state violates the Full Faith and Credit Clause (see US Const, art IV, § 1). However, this clause is designed “to avoid conflicts between [s]tates in adjudicating the same matters” … and “is not implicated where the issue decided by a court in [another] state is different from the issue being decided by a New York court” … . Here, Washington and New York have each separately adjudicated the risks posed by defendant to their respective citizens, and each state has imposed sex offender registration requirements pursuant to the governing sex offender registration laws in each state and, accordingly, neither state has adjudicated the “same matter” in violation of the Full Faith and Credit Clause .., .

… [F]ull faith and credit principles do not require New York to assign an offender the same risk level as that imposed by the jurisdiction where the conviction occurred … . …

… [Because] each state is assessing the risks posed to its own citizens and vulnerable populations and applying its own registration laws, the courts are not adjudicating the “same matters” in violation of the Full Faith and Credit Clause … . People v Hlatky, 2017 NY Slip Op 06693, Third Dept 9-28-17

 

CRIMINAL LAW (ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT))/SEX OFFENDER REGISTRATION ACT (SORA)  (ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT)/CONSTITUTIONAL LAW (FULL FAITH AND CREDIT CLAUSE, ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT))/FULL FAITH AND CREDIT CLAUSE (SEX OFFENDER REGISTRATION ACT, ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT))

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DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCE OF HIS GUILTY PLEA, DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE, GUILTY PLEA SHOULD HAVE BEEN VACATED (SECOND DEPT).

The Second Department, in a substantive decision, determined defendant’s motion to vacate his guilty plea on ineffective assistance grounds should have been granted. Defendant was not informed by his attorney that the plea would trigger mandatory deportation:

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… [D]efense counsel incorrectly advised the defendant that his plea of guilty to grand larceny in the second degree would preserve his eligibility to apply for a cancellation of removal, when, in fact, his conviction constituted an aggravated felony, rendering him mandatorily deportable and ineligible for cancellation of removal … . Courts have recognized the significance to a defendant, in pleading guilty, of a possibility of discretionary relief from removal … . The lack of such a possibility here was “succinct, clear, and explicit” and could have been determined simply from reading the text of the statute … . Thus, counsel had a duty to give correct advice as to the immigration consequences of the plea … . Counsel failed to do so, instead misadvising the defendant that there was a possibility of receiving a cancellation of removal. * * *

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Given the circumstances here, including the defendant’s focus on the immigration consequences of his plea, his large incentive to negotiate a plea which did not render him mandatorily deportable without eligibility for relief, the possibility of offering the People such a plea with the same sentence or even a longer aggregate sentence, and the fact that the prosecutor was unconcerned with the immigration consequences of the plea, the defendant established a reasonable probability that he could have negotiated a plea agreement that did not impose mandatory deportation without eligibility for relief … . Thus, the defendant established the requisite prejudice from counsel’s misadvice under Strickland, and further that counsel’s error was “egregious and prejudicial” such that it denied him meaningful representation under the New York Constitution … . People v Abdallah, 2017 NY Slip Op 06657, Second Dept 9-27-17

 

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, DEPORTATION, DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCE OF HIS GUILTY PLEA, DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE, GUILTY PLEA SHOULD HAVE BEEN VACATED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEPORTATION, DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCE OF HIS GUILTY PLEA, DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE, GUILTY PLEA SHOULD HAVE BEEN VACATED (SECOND DEPT))/INEFFECTIVE ASSISTANCE (DEPORTATION,  DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCE OF HIS GUILTY PLEA, DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE, GUILTY PLEA SHOULD HAVE BEEN VACATED (SECOND DEPT))/DEPORTATION (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCE OF HIS GUILTY PLEA, DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE, GUILTY PLEA SHOULD HAVE BEEN VACATED (SECOND DEPT))

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