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TWO OF THE COUNTS TO WHICH DEFENDANT PLED GUILTY WERE NOT SUPPORTED BY THE FACTS ALLEGED, THE ISSUE WAS NOT RAISED ON APPEAL, THEREFORE THE MOTION TO VACATE THE CONVICTION WAS PROCEDURALLY BARRED, STRONG DISSENT.

The Second Department, over a dissent, determined defendant’s motion to vacate his conviction on ineffective assistance grounds was properly denied because the issue could have been appealed. Defendant pled guilty to three counts charging robbery second. However the underlying factual allegations for two of the counts only supported robbery third. Defendant was sentenced to consecutive five year terms of imprisonment, one for each robbery second count. The issue was not raised on appeal and a writ of error coram nobis was denied:

FROM THE DISSENT:

I understand that we are constrained by CPL 440.10(2)(2), which provides that a court must deny a motion to vacate a judgment of conviction where the ground or issue raised upon the motion could have been raised on a direct appeal from the judgment of conviction and the defendant unjustifiably failed to do so … . Here, the defendant, although represented by appellate counsel, failed to raise, on his direct appeal, the meritorious issues he now raises on his CPL 440.10 motion … . The defendant filed an application for a writ of error coram nobis, claiming that his appellate counsel was ineffective for failing to raise these issues. However, that application was summarily denied … . Under these unique circumstances, where the defendant has no other apparent avenue of relief in the New York State court system, it would be fundamentally unfair and unjust to apply the procedural bar set forth in CPL 440.10 to his claims.

Accordingly, while I understand the reasoning the majority applies in reaching its determination, I cannot join it, and must respectfully dissent. People v McKenzie, 2017 NY Slip Op 05243, 2nd Dept 6-28-17

 

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THE SEARCH WAS NOT INCIDENT TO ARREST AS THE SUPPRESSION COURT RULED, CASE REMITTED FOR CONSIDERATION OF AN ALTERNATE GROUND FOR A VALID SEARCH WHICH WAS ARGUED BUT NOT RULED UPON BELOW. ​

The First Department determined the seizure of a knife from the defendant was not the result of a valid search incident to arrest. Because the People also argued the seizure was justified for officer safety, but the suppression court did not rule on that issue, the matter was remitted:

Although the record supports a finding that the officer had probable cause to arrest defendant for assault based on reliable information from the assault victim, the People failed to meet their burden … of demonstrating that the officer intended to arrest defendant for the assault at the time he recovered the knife … . The officer’s testimony, viewed as a whole, indicates that, when he noticed the knife upon approaching defendant and retrieved it from defendant’s pocket, the officer’s intent was to inquire about the assault in order to verify that defendant was indeed the man who had assaulted the victim. Further, it was not until after the officer had retrieved the knife and confirmed that it was a gravity knife that he asked about the assault.

The People argue, in the alternative, as they did at the hearing, that the officer’s act of taking the knife from defendant’s pocket, where the handle of the knife and its clip were in plain view, was permissible as a self-protective minimal intrusion … . . However, as the hearing court did not rule on this issue in denying the suppression motion, and therefore did not rule adversely against defendant on this point, we may not reach it on this appeal … . People v Simmons, 2017 NY Slip Op 05179, 1st Dept 6-27-17

 

DEFENDANT DID NOT DEMONSTRATE HE WOULD NOT HAVE PLED GUILTY HAD THE COURT WARNED HIM OF THE DEPORTATION CONSEQUENCES OF THE PLEA.

The First Department determined defendant did not meet his burden of proof on his claim that he would not have pled guilty the court’s failure to warn him of the deportation consequences of the plea:

By pleading guilty, defendant received a lenient disposition, which included a sentence of probation if he complied with all plea conditions. Defendant faced extensive prison terms if convicted after trial of the crimes that led to his 2002 and 2005 pleas, and acquittal of any of those crimes was unlikely. One of the two drug sales involved in the case resulting in the 2002 plea carried a potential life sentence, and the strength of the People’s case regarding those sales was apparent from the felony complaint. The facts set forth in the complaint supported a compelling inference that, in both instances, defendant was a participant in a drug-selling operation. A defense that, on two separate days, defendant did nothing more than innocently direct the undercover buyer to a source of drugs offered little hope of success. Defendant failed to demonstrate that he had significant ties to the United States. The evidence showed that he had a daughter in the Dominican Republic, but no family in the United States, at the time of his 2002 plea. Defendant’s claim of an impending marriage to a United States citizen was undermined by the fact that he did not marry that person, despite ample opportunity to do so long before being incarcerated and deported.

Accordingly, we conclude that defendant failed to establish that he was prejudiced by the court’s failure to warn him of the immigration consequences of his plea at the 2002 proceeding, or by any misleading immigration-related remarks by his counsel at the 2005 proceeding, where defendant again received a lenient disposition involving yet another serious drug charge. People v Corporan, 2017 NY Slip Op 05178, 1st Dept 6-27-17

 

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BAIL BONDSMAN IS NOT ENTITLED TO KEEP THE PREMIUM POSTED TO UNDERWRITE A BAIL BOND IF BAIL IS SUBSEQUENTLY DISAPPROVED AND THE ARRESTEE IS NOT RELEASED.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined the defendant bail bondsman, Judelson, who agreed to underwrite a $2 million bail bond in return for a premium of $120,560, could not keep the premium when bail was disapproved and the arrestee, Bogoraz, was not released. The bond was posted, but bail was disapproved at the subsequent hearing:

The question before us ultimately turns on when a “premium” is earned. The use of the word “premium” in [Insurance Law] section 6804 (a) is significant because that term connotes a consideration paid to an insurer for assuming a risk … . Risk, when used “with reference to insurance, describes the liability assumed as specified on the face of the policy” … . Notably, in 1997, when the legislature amended section 6804 to increase premium rates to sureties, the sponsor justified the change as providing “an incentive to assume more risk by bonding agents” … .

When does a bail bond surety incur risk? In our view, the risk associated with the bail bond is that the principal admitted on bail will fail to appear and the bail bond will be forfeited … . If the posted collateral does not cover the bail bond, the surety may suffer a financial loss. The surety does not incur this risk when the principal is not released and so has no opportunity to jump bail … . While the surety assumes a binding obligation to pay the bail upon posting the bail bond, no risk attaches from this obligation alone. Risk is triggered only when the court takes additional steps following the posting — approving the bail bond and issuing a certificate authorizing the principal’s release … . When a hearing is ordered under CPL 520.30, the court approves or disapproves the bail bond after the hearing … . If the court disapproves the bail bond, the surety never runs the risk it contracted to insure. Gevorkyan v Judelson, 2017 NY Slip Op 05176, CtApp 6-27-17

 

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PHOTOGRAPH TAKEN FROM A WEBSITE NOT SUFFICIENTLY CONNECTED TO THE DEFENDANT, CONVICTION REVERSED.

The Court of Appeals, in a full-fledged opinion by Judge Stein, with a concurring opinion by Judge Rivera, reversing the Appellate Division, determined that a photograph taken from a website, allegedly depicting the defendant with a handgun similar to the handgun used in the robbery, was not adequately authenticated. The conviction was reversed. The evidence tying the defendant to the website was not strong enough. There was no showing defendant controlled the website, or that others did not have access to the website:

… [T]he evidence presented here of defendant’s connection to the website or the particular profile was exceedingly sparse … . For example, notably absent was any evidence regarding whether defendant was known to use an account on the website in question, whether he had ever communicated with anyone through the account, or whether the account could be traced to electronic devices owned by him. Nor did the People proffer any evidence indicating whether the account was password protected or accessible by others, whether non-account holders could post pictures to the account, or whether the website permitted defendant to remove pictures from his account if he objected to what was depicted therein. Without suggesting that all of the foregoing information would be required or sufficient in each case, or that different information might not be relevant in others, we are convinced that the authentication requirement cannot be satisfied solely by proof that defendant’s surname and picture appears on the profile page. Thus, even if we were to accept that the photograph could be authenticated through proof that the website on which it was found was attributable to defendant, the People’s proffered authentication evidence failed to actually demonstrate that defendant was aware of — let alone exercised dominion or control over — the profile page in question … . …

In sum, the People failed to demonstrate that the photograph was a fair and accurate representation of that which it purported to depict. Nor — assuming adoption of the test urged by the People (or some variation thereof) — did the People present sufficient evidence to establish that the website belonged to, and was controlled by, defendant. People v Price, 2017 NY Slip Op 05174, CtApp 6-27-17

 

JUROR WHO ASKED TO BE EXCUSED AFTER FOUR DAYS OF DELIBERATIONS BECAUSE SHE COULD NOT SEPARATE HER EMOTIONS FROM HER ANALYSIS OF THE FACTS SHOULD HAVE BEEN EXCUSED AS GROSSLY UNQUALIFIED.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, reversing the appellate division, determined a juror who asked to be excused after four days of deliberations should have been discharged as “grossly unqualified.” The alternate jurors had been excused. The juror repeatedly told the judge she could not separate her emotions from her analysis of the facts. The defendant was charged with stabbing the victim 38 times:

Pursuant to CPL 270.35 (1), “[i]f at any time after the trial jury has been sworn and before the rendition of its verdict . . . the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case . . . the court must discharge such juror. . . . If no alternate juror is available, the court must declare a mistrial.”

As explained in People v Buford, a juror is grossly unqualified “only ‘when it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict'” (69 NY2d at 298 … ). * * *

…[ T]he record reveals that it was obvious the juror possessed a state of mind preventing her from rendering an impartial verdict and thus, she was “grossly unqualified to serve.” The juror declared forthrightly that she could not separate her emotions from her ability to deliberate and was incapable of fulfilling her sworn duty to reach a verdict based solely on the evidence presented at trial and the law. Compelling the juror to resume deliberations could not cure the fundamental problem with her state of mind. The trial court’s implicit conclusion that the juror did not “possess[] a state of mind which would prevent the rendering of an impartial verdict” (Buford, 69 NY2d at 298 …) was erroneous. People v Spencer, 2017 NY Slip Op 05118, CtApp 6-22-17

CRIMINAL LAW (JUROR WHO ASKED TO BE EXCUSED AFTER FOUR DAYS OF DELIBERATIONS BECAUSE SHE COULD NOT SEPARATE HER EMOTIONS FROM HER ANALYSIS OF THE FACTS SHOULD HAVE BEEN EXCUSED AS GROSSLY UNQUALIFIED)/JURORS (CRIMINAL, GROSSLY UNQUALIFIED, JUROR WHO ASKED TO BE EXCUSED AFTER FOUR DAYS OF DELIBERATIONS BECAUSE SHE COULD NOT SEPARATE HER EMOTIONS FROM HER ANALYSIS OF THE FACTS SHOULD HAVE BEEN EXCUSED AS GROSSLY UNQUALIFIED)/GROSSLY UNQUALIFIED (JURORS, CRIMINAL LAW, JUROR WHO ASKED TO BE EXCUSED AFTER FOUR DAYS OF DELIBERATIONS BECAUSE SHE COULD NOT SEPARATE HER EMOTIONS FROM HER ANALYSIS OF THE FACTS SHOULD HAVE BEEN EXCUSED AS GROSSLY UNQUALIFIED)

(1) SENTENCING COURT’S RELIANCE ON A CONFIDENTIAL DOCUMENT IN A PRE-SENTENCE REPORT, AND FAILURE TO INFORM THE DEFENDANT OF THE NATURE OF THE DOCUMENT, VIOLATED DUE PROCESS, (2) SENTENCING COURTS ARE NOT REQUIRED TO PUT THE REASONS FOR DENIAL OF YOUTHFUL OFFENDER STATUS ON THE RECORD.

The Court of Appeals, in a full-fledged opinion by Judge Stein, reversing the appellate division, determined (1) a sentencing judge need not put on the record the reasons for the denial of youthful offender status and (2) the sentencing court’s failure to inform defendant of the nature of a “confidential” document included in the pre-sentence report and relied upon by the sentencing judge violated defendant’s due process rights:

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In its current form, CPL 390.50 — which is entitled “Confidentiality of pre-sentence reports and memoranda” — declares that while PSIs are presumptively confidential, disclosure to the parties is required for sentencing purposes. * * *

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… [I]f a court decides that it is essential to keep confidential any portion of a document that might reveal its source, the court should, at the very least, disclose the nature of the document or redacted portion thereof — to the extent possible without intruding on any necessary confidentiality — and should set forth on the record the basis for such determination. Alternatively, where possible, the court may choose not to rely on the document, and clearly so state on the record. Here, the court failed to explain the nature of the document or the reason for its confidentiality. …

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As a result of the court’s failure to comply with its statutory obligation under CPL 390.50, defendant was deprived of the ability to respond to information that the court reviewed when imposing sentence, thus implicating his due process rights. Additionally, under the circumstances here, the appellate courts were unable to adequately review the sentencing court’s denial of disclosure. Accordingly, the order of the Appellate Division should be reversed and the case remitted to County Court for further proceedings in accordance with this opinion. People v Minemier, 2017 NY Slip Op 05120, CtApp 6-22-17

 

CRIMINAL LAW (PRE-SENTENCE REPORTS, SENTENCING COURT’S RELIANCE ON A CONFIDENTIAL DOCUMENT IN A PRE-SENTENCE REPORT, AND FAILURE TO INFORM THE DEFENDANT OF THE NATURE OF THE DOCUMENT, VIOLATED DUE PROCESS)/CRIMINAL LAW (YOUTHFUL OFFENDERS, SENTENCING COURTS ARE NOT REQUIRED TO PUT THE REASONS FOR DENIAL OF YOUTHFUL OFFENDER STATUS ON THE RECORD)/PRE-SENTENCE REPORTS (PRE-SENTENCE REPORTS, SENTENCING COURT’S RELIANCE ON A CONFIDENTIAL DOCUMENT IN A PRE-SENTENCE REPORT, AND FAILURE TO INFORM THE DEFENDANT OF THE NATURE OF THE DOCUMENT, VIOLATED DUE PROCESS)/YOUTHFUL OFFENDERS (SENTENCING COURTS ARE NOT REQUIRED TO PUT THE REASONS FOR DENIAL OF YOUTHFUL OFFENDER STATUS ON THE RECORD)

PROPER PROCEDURE FOR DETERMINING YOUTHFUL OFFENDER STATUS NOT FOLLOWED, CASE REMITTED.

The Court of Appeals, reversing the appellate division, held Supreme Court did not follow the proper procedure for making an on-the-record determination of youthful offender eligibility and remitted the matter:

We agree with defendant’s contention that the trial court failed to make an on-the-record determination as to whether defendant was eligible for a youthful offender adjudication by first “considering the presence or absence of the factors set forth in CPL 720.10 (3)” … . People v Lofton, 2017 NY Slip Op 05119, CtApp 6-22-17

CRIMINAL LAW (YOUTHFUL OFFENDER, PROPER PROCEDURE FOR DETERMINING YOUTHFUL OFFENDER STATUS NOT FOLLOWED, CASE REMITTED)/YOUTHFUL OFFENDER (CRIMINAL LAW,  PROPER PROCEDURE FOR DETERMINING YOUTHFUL OFFENDER STATUS NOT FOLLOWED, CASE REMITTED)

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DEFENDANT EXPRESSLY DENIED THE INTENT ELEMENT OF UNLAWFUL POSSESSION OF A WEAPON DURING THE PLEA COLLOQUY, THE JUDGE DID NOT ADEQUATELY ADDRESS THE ISSUE, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ERROR.

The First Department, reversing defendant’s conviction by guilty plea, in the absence of preservation of the error, determined the plea colloquy negated an essential element of the crime. Unlawful possession of a weapon requires an intent to use the weapon unlawfully. Although such intent can be presumed, here defendant expressly negated it:

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This is a “rare case” where the preservation requirement for challenges to guilty pleas does not apply because “defendant’s factual recitation negate[d] an essential element of the crime pleaded to” and the court “accept[ed] the plea without making further inquiry to ensure that defendant underst[ood] the nature of the charge and that the plea [was] intelligently entered” .. . The crime of attempted possession of a weapon in the second degree requires that a defendant intend to use the weapon unlawfully against another. However, during the plea colloquy, defendant explicitly, repeatedly and consistently denied any intent to use the weapon against anyone, lawfully or otherwise, at the time the police recovered it or at any other time. The court asked followup questions, but they were ineffectual because defendant’s responses only reconfirmed that he expressly denied having the requisite intent. Although an express admission of unlawful intent may not have been necessary in the first place, particularly because such intent is presumed (see Penal Law § 265.15[4]), defendant expressly negated that intent. People v Medina-Feliz, 2017 NY Slip Op 05053, 1st Dept 6-20-17

CRIMINAL LAW (GUILTY PLEA, DEFENDANT EXPRESSLY DENIED THE INTENT ELEMENT OF UNLAWFUL POSSESSION OF A WEAPON DURING THE PLEA COLLOQUY, THE JUDGE DID NOT ADEQUATELY ADDRESS THE ISSUE, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ERROR)/APPEALS, (CRIMINAL LAW, GUILTY PLEA, DEFENDANT EXPRESSLY DENIED THE INTENT ELEMENT OF UNLAWFUL POSSESSION OF A WEAPON DURING THE PLEA COLLOQUY, THE JUDGE DID NOT ADEQUATELY ADDRESS THE ISSUE, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ERROR)/GUILTY PLEA (DEFENDANT EXPRESSLY DENIED THE INTENT ELEMENT OF UNLAWFUL POSSESSION OF A WEAPON DURING THE PLEA COLLOQUY, THE JUDGE DID NOT ADEQUATELY ADDRESS THE ISSUE, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ERROR)/WEAPON POSSESSION (UNLAWFUL POSSESSION OF A WEAPON REQUIRES AN INTENT TO USE THE WEAPON UNLAWFULLY, EXPRESS DENIAL OF THAT ELEMENT REQUIRED REVERSAL OF GUILTY PLEA)

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PROSECUTOR ADMONISHED FOR MISCONDUCT, CONVICTION AFFIRMED BECAUSE THE JURY WAS PROPERLY INSTRUCTED AND THE EVIDENCE OF GUILT WAS OVERWHELMING.

The Fourth Department did not reverse defendant’s conviction because of prosecutorial misconduct, but took the opportunity to admonish the prosecutor responsible for it, noting that several past reversals were based on that same prosecutor’s misconduct. The court determined the fact that the trial judge sustained objections to the misconduct and properly instructed the jury, together with the overwhelming evidence of guilt, allowed the conviction to stand:

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The People correctly concede that the prosecutor improperly appealed to the sympathy of the jury … . The People also correctly concede that the prosecutor improperly implied that a potential adolescent witness did not testify because he felt “guilt” about defendant’s actions; County Court, however, properly sustained defense counsel’s objection to the prosecutor’s statement and gave a curative instruction, which the jury is presumed to have followed … . Thus, with respect to that instance of misconduct, we conclude that any prejudice was alleviated … . The People also correctly concede that the prosecutor denigrated defense counsel by stating that he intentionally attempted to confuse an adolescent prosecution witness. We further conclude that, in an attempt to discredit the testimony of an adolescent defense witness, the prosecutor misstated the evidence with respect to whether the witness had spoken with defendant regarding the allegations against him. Although the prosecutor properly responded to defense counsel’s remarks during summation attacking the credibility of the victim … , she also improperly vouched for the credibility of the victim’s testimony … . Furthermore, the prosecutor improperly acted as an unsworn expert by describing defendant’s behavior towards the victim as “classic grooming behavior,” and as an unsworn witness with respect to reasons why the victim delayed in reporting what had occurred … . People v Flowers, 2017 NY Slip Op 04990, 4th Dept 6-16-17

CRIMINAL LAW (PROSECUTORIAL MISCONDUCT, PROSECUTOR ADMONISHED FOR MISCONDUCT, CONVICTION AFFIRMED BECAUSE THE JURY WAS PROPERLY INSTRUCTED AND THE EVIDENCE OF GUILT WAS OVERWHELMING)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, PROSECUTOR ADMONISHED FOR MISCONDUCT, CONVICTION AFFIRMED BECAUSE THE JURY WAS PROPERLY INSTRUCTED AND THE EVIDENCE OF GUILT WAS OVERWHELMING)/PROSECUTORIAL MISCONDUCT (PROSECUTOR ADMONISHED FOR MISCONDUCT, CONVICTION AFFIRMED BECAUSE THE JURY WAS PROPERLY INSTRUCTED AND THE EVIDENCE OF GUILT WAS OVERWHELMING)

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