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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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FAILURE TO PROVIDE DEFENDANT WITH A STATEMENT OF CONVICTION REQUIRED VACATION OF HIS SENTENCE AS A SECOND FELONY OFFENDER IN THE INTEREST OF JUSTICE.

The Fourth Department determined defendant was not accorded the opportunity to contest the constitutionality of a prior conviction. Therefore the sentence as a second felony offender was vacated even though the error was not preserved for review (interest of justice). Defendant was not provided with a statement of conviction. The fact that the prior conviction was an element of the charged offense in a special information did not obviate the need for a statement of conviction:

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…[D]defendant contends that the People failed to comply with the procedural requirements of CPL 400.15 in seeking to have him sentenced as a second violent felony offender inasmuch as they did not file a predicate felony offender statement as required by CPL 400.15 (2). Although that contention is not preserved for our review… , we nonetheless exercise our discretion to review it as a matter of discretion in the interest of justice … . Contrary to the assertion of the prosecutor at sentencing, “the need for a predicate felony offender statement was not obviated by defendant’s pretrial admission to a special information setting forth his prior felony conviction as an element of a count charging criminal possession of a weapon. The special information did not permit defendant to raise constitutional challenges to his prior conviction, as he had the right to do before being sentenced as a second felony offender” … . We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for the filing of a predicate felony offender statement pursuant to CPL 400.15 and resentencing. People v Edwards, 2017 NY Slip Op 04983, 4th Dept 6-16-17

CRIMINAL LAW (SENTENCING, SECOND FELONY OFFENDER, FAILURE TO PROVIDE DEFENDANT WITH A STATEMENT OF CONVICTION REQUIRED VACATION OF HIS SENTENCE AS A SECOND FELONY OFFENDER)/STATEMENT OF CONVICTION (SECOND FELONY OFFENDER, FAILURE TO PROVIDE DEFENDANT WITH A STATEMENT OF CONVICTION REQUIRED VACATION OF HIS SENTENCE AS A SECOND FELONY OFFENDER)/SECOND FELONY OFFENDER (SENTENCING, FAILURE TO PROVIDE DEFENDANT WITH A STATEMENT OF CONVICTION REQUIRED VACATION OF HIS SENTENCE AS A SECOND FELONY OFFENDER)/APPEALS (CRIMINAL LAW, INTEREST OF JUSTICE, FAILURE TO PROVIDE DEFENDANT WITH A STATEMENT OF CONVICTION REQUIRED VACATION OF HIS SENTENCE AS A SECOND FELONY OFFENDER)

DEFENDANT, WHO HAD BEEN RETAINED AFTER A PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, SHOULD NOT HAVE BEEN SUMMARILY RELEASED BY COUNTY COURT WITHOUT A HEARING.

The Fourth Department, reversing County Court, determined defendant, who had been retained after he had been indicted for assault and entered a plea of not responsible by reason of mental disease or defect, should not have been released without a hearing:

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Although originally determined to suffer from a “dangerous mental disorder,” defendant progressed in treatment to the point where he was transferred to a nonsecure psychiatric facility. Petitioner nevertheless contends that defendant remains “[m]entally ill” and in need of “care and treatment as a patient, in the in-patient services of a psychiatric center under the jurisdiction of the state office of mental health” (CPL 330.20 [1] [d]). As a result, petitioner commenced this proceeding seeking a “[s]ubsequent retention order” (CPL 330.20 [1] [i]). In support of the application, petitioner submitted, inter alia, an appropriate affidavit from a psychiatric examiner in accordance with CPL 330.20 (20). Defendant demanded a hearing pursuant to CPL 330.20 (9), but he did not submit any affidavits in opposition to the application. * * *

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Before issuing a release order, the court must conduct a hearing to “determine the defendant’s present mental condition” (CPL 330.20 [12]). Here, the undisputed submissions before the court in support of petitioner’s application for a subsequent retention order demonstrated that defendant remained “mentally ill” as defined in CPL 330.20 (1) (d) and in need of in-patient treatment. Nonetheless, without taking any testimony or receiving any evidence, the court issued a release order. That, itself, was error. Moreover, before issuing a release order, the court must “find[] that the defendant does not have a dangerous mental disorder and is not mentally ill” (CPL 330.20 [12]; … ). Here, we agree with petitioner that the court further erred in failing to make any finding on that issue. Guttmacher v S.J., 2017 NY Slip Op 04968, 4th Dept 6-16-17

 

CRIMINAL LAW (MENTAL DISEASE OR DEFECT, DEFENDANT, WHO HAD BEEN RETAINED AFTER A PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, SHOULD NOT HAVE BEEN SUMMARILY RELEASED BY COUNTY COURT WITHOUT A HEARING)/MENTAL DISEASE OR DEFECT (CRIMINAL LAW, DEFENDANT, WHO HAD BEEN RETAINED AFTER A PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, SHOULD NOT HAVE BEEN SUMMARILY RELEASED BY COUNTY COURT WITHOUT A HEARING)

FAILURE TO PROVIDE MEANINGFUL NOTICE OF A JURY NOTE REQUIRED REVERSAL.

The Fourth Department determined the judge’s failure to provide meaningful notice of a jury note, which was sent out just before a note stating the jury had reached a verdict, was a mode of proceedings error requiring reversal:

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… [T]he record fails to reflect that the court provided defense counsel with meaningful notice of a substantive jury note … Thus, a mode of proceedings error occurred, requiring reversal … . The record reflects that, during a period of approximately 30 minutes when the court had excused counsel, the jury sent three notes, which the court properly marked as court exhibits. The last note stated that the jury had reached a verdict; a prior note, however, stated “we the jury request a copy of the wording of the law.” Inasmuch as the court would have been prohibited from providing the jury with either a copy of the statute, or a copy of its jury instructions, without the consent of defendant … . we reject the contention of the People that the note was ministerial, and not substantive … . People v Holloman, 2017 NY Slip Op 05015, 4th Dept 6-16-17

CRIMINAL LAW (JURY NOTES, FAILURE TO PROVIDE MEANINGFUL NOTICE OF A JURY NOTE REQUIRED REVERSAL)/JURY NOTES (CRIMINAL LAW, FAILURE TO PROVIDE MEANINGFUL NOTICE OF A JURY NOTE REQUIRED REVERSAL)

COUNTY COURT FAILED TO MAKE A YOUTHFUL OFFENDER DETERMINATION, CASE REMITTED.

The Fourth Department noted that County Court did not make a determination on the record whether defendant was a youthful offender, which is mandatory. The case was remitted for that purpose:

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We agree with defendant, however, that the court erred in failing to determine whether he should be afforded youthful offender status … . Defendant was convicted of a sex offense enumerated in CPL 720.10 (2) (a) (iii), and the court therefore was required ” to determine on the record whether . . . defendant is an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10 (3)’ ” … . Because the court failed to make such a determination, we hold the case, reserve decision, and remit the matter to County Court to make and state for the record “a determination of whether defendant is a youthful offender” … . People v Wilson, 2017 NY Slip Op 04985, 4th Dept 6-16-17

CRIMINAL LAW (YOUTHFUL OFFENDER, COUNTY COURT FAILED TO MAKE A YOUTHFUL OFFENDER DETERMINATION, CASE REMITTED)/YOUTHFUL OFFENDER (CRIMINAL LAW,  COUNTY COURT FAILED TO MAKE A YOUTHFUL OFFENDER DETERMINATION, CASE REMITTED)

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