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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)

THE TOTALITY OF THE RECORD INDICATED DEFENSE COUNSEL WAIVED THE SPEEDY TRIAL RULE, SUPREME COURT REVERSED.

The First Department, reversing Supreme Court, determined defense counsel waived the speedy trial (CPL 30.30) rule. In response to the prosecutor’s request that the waiver go back to the date of the arraignment, defense counsel stated a preference that the waiver start at the time of the agreement to it, but “if you insist” waiver from arraignment would be acceptable. Supreme Court reasoned that the phrase “if you insist” required further negotiation (which did not take place). The First Department held that, based on the totality of the record, defense counsel agreed to starting the waiver at the time of arraignment:

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In assessing whether time is properly excluded, a court should look to the totality of the record … . Here, based on a fair reading of the whole record, we conclude that defense counsel expressly waived inclusion of the 52-day period. Central to the court’s reasoning was that the prosecutor “did not insist’ or otherwise respond” after defense counsel wrote “I’d be inclined to waive from today, but if you insist on 1/24 that’s acceptable.” However, in this exchange, “insistence” was not an eventuality that had to be confirmed by further action of the prosecutor, but an already clearly stated position. The prosecutor had already, in her March 16 email, insisted on a waiver of “all 30.30 time,” extending back to the arraignment — requiring such a total waiver as a condition of negotiations. She had explained that if defendant were not willing to waive all 30.30 time, the case would be presented to the current grand jury.

The March 17 email repeated, even more explicitly, the prerequisite — to which defendant had already agreed — that defendant waive speedy trial time going back to January 24. There was no need for the People to again insist on this because they had unequivocally insisted on it from the beginning of the conversation. As a realistic matter, the question whether the People insisted on this was not an open one, and defense counsel did not treat it as unresolved. He “accept[ed]” the waiver running back to the time of arraignment and promised to call the prosecutor the following week to make arrangements for a “presentation to you.” People v Lewins, 2017 NY Slip Op 04908, 1st Dept 6-15-17

 

CRIMINAL LAW (THE TOTALITY OF THE RECORD INDICATED DEFENSE COUNSEL WAIVED THE SPEEDY TRIAL RULE, SUPREME COURT REVERSED)/SPEEDY TRIAL (WAIVER, THE TOTALITY OF THE RECORD INDICATED DEFENSE COUNSEL WAIVED THE SPEEDY TRIAL RULE, SUPREME COURT REVERSED)

MISDEMEANOR COMPLAINT DID NOT INCLUDE FACTS DEMONSTRATING THE ARREST OF DEFENDANT’S BROTHER WAS AUTHORIZED, THEREFORE THE COMPLAINT CHARGING DEFENDANT WITH RESISTING ARREST AND OBSTRUCTING GOVERNMENTAL ADMINISTRATION WAS JURISDICTIONALLY DEFECTIVE.

The First Department, over a dissent, determined the misdemeanor complaint charging resisting arrest and obstructing governmental administration was jurisdictionally defective. The complaint alleged defendant interfered in the arrest of her brother and then herself resisted arrest. But the complaint did not allege the basis for the arrest of defendant’s brother and therefore did not demonstrate the brother’s arrest was “authorized,” an essential element of the offense:

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The factual part of the complaint merely states that the officer was “attempting to effectuate the arrest of [defendant’s brother].” However, the complaint contains no factual allegations that would establish, if true, that the underlying arrest of defendant’s brother was authorized. Thus, the complaint fails to allege facts sufficient to establish all the essential elements of the crime of obstructing governmental administration in the second degree. Because the information fails to allege sufficient facts supporting the underlying obstructing governmental administration charge, it is also insufficient to allege that defendant’s arrest on that charge was “authorized,” as required by Penal Law § 205.30. Therefore, defendant is also entitled to dismissal of the resisting arrest charge … .

The dissent acknowledges that an element of the crime of obstructing governmental administration is that the underlying arrest was authorized, but nevertheless concludes that this essential element need not be alleged in the factual part of an information. This position, however, cannot be reconciled with the statutory requirement that an information contain “nonhearsay allegations [that] establish, if true, every element of the offense charged”… . People v Sumter, 2017 NY Slip Op 04897, 1st Dept 6-15-17

 

CRIMINAL LAW (MISDEMEANOR COMPLAINT DID NOT INCLUDE FACTS DEMONSTRATING THE ARREST WAS AUTHORIZED, THEREFORE THE COMPLAINT CHARGING RESISTING ARREST AND OBSTRUCTING GOVERNMENTAL ADMINISTRATION WAS JURISDICTIONALLY DEFECTIVE)/MISDEMEANOR COMPLAINT  (MISDEMEANOR COMPLAINT DID NOT INCLUDE FACTS DEMONSTRATING THE ARREST WAS AUTHORIZED, THEREFORE THE COMPLAINT CHARGING RESISTING ARREST AND OBSTRUCTING GOVERNMENTAL ADMINISTRATION WAS JURISDICTIONALLY DEFECTIVE)/JURISDICTION (CRIMINAL LAW, MISDEMEANOR COMPLAINT DID NOT INCLUDE FACTS DEMONSTRATING THE ARREST WAS AUTHORIZED, THEREFORE THE COMPLAINT CHARGING RESISTING ARREST AND OBSTRUCTING GOVERNMENTAL ADMINISTRATION WAS JURISDICTIONALLY DEFECTIVE)/RESISTING ARREST (MISDEMEANOR COMPLAINT DID NOT INCLUDE FACTS DEMONSTRATING THE ARREST WAS AUTHORIZED, THEREFORE THE COMPLAINT CHARGING RESISTING ARREST AND OBSTRUCTING GOVERNMENTAL ADMINISTRATION WAS JURISDICTIONALLY DEFECTIVE)/OBSTRUCTING GOVERNMENTAL ADMINISTRATION  (MISDEMEANOR COMPLAINT DID NOT INCLUDE FACTS DEMONSTRATING THE ARREST WAS AUTHORIZED, THEREFORE THE COMPLAINT CHARGING RESISTING ARREST AND OBSTRUCTING GOVERNMENTAL ADMINISTRATION WAS JURISDICTIONALLY DEFECTIVE)

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FAILURE TO DETERMINE WHETHER DEFENDANT RECEIVED NOTICE OF THE SORA HEARING REQUIRED REVERSAL.

The Second Department determine the steps taken to notify defendant of the SORA hearing were not adequate to ensure defendant was notified. Therefore defendant could not be deemed to have waived his presence at the hearing:

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” A sex offender facing risk level classification under [SORA] has a due process right to be present at the SORA hearing'” … . “[W]here there is a question as to whether the defendant’s failure to appear is deliberate, in order to establish a waiver, evidence must be presented that the defendant was advised of the hearing date, of his right to be present, and that the hearing would be conducted in his absence” … .

Here, when defense counsel and the People initially appeared for the hearing, and the defendant failed to appear, the Supreme Court, recognizing its duty to ensure that any waiver of the defendant’s right to be present was voluntary, adjourned the matter to permit defense counsel to send a notice to the defendant, by certified mail, return-receipt requested. Defense counsel sent the letter, but never received a return receipt from the post office or a response from the defendant, with whom he had never met or consulted. Defense counsel did not indicate any efforts he made to determine whether his letter had been delivered, such as, by contacting the post office. Further, there was no evidence in the record that notice was sent to the defendant by the court, but, even presuming such [*2]notice was sent, there was no evidence as to whether the notice was delivered or returned. Nor was there evidence regarding how the court or defense counsel obtained the address to which notices were sent. Thus, as defense counsel asserted, there was reason to believe that the defendant may not have received notice of the hearing. Indeed, even the court acknowledged that possibility.

Since the record failed to establish that the defendant voluntarily waived his right to be present at the SORA hearing, the order must be reversed, and the matter must be remitted to the Supreme Court, Queens County, for a new risk level assessment hearing and a new determination thereafter, to be preceded by notice to the defendant. People v Jenkins, 2017 NY Slip Op 04869, 2nd Dept 6-14-17

 

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, FAILURE TO DETERMINE WHETHER DEFENDANT RECEIVED NOTICE OF THE SORA HEARING REQUIRED REVERSAL)/SEX OFFENDER REGISTRATION ACT (SORA) ( FAILURE TO DETERMINE WHETHER DEFENDANT RECEIVED NOTICE OF THE SORA HEARING REQUIRED REVERSAL)

TRIAL COURT DID NOT ABUSE ITS DISCRETION IN NOT LETTING THE POSSESSION-OF-A-BB-GUN COUNT GO TO THE JURY BECAUSE THE COUNT COULD CONFUSE THE JURY AND LEAD TO A COMPROMISE VERDICT, DEFENDANT WAS CONVICTED OF POSSESSION OF A 9 MM HANDGUN. 

The First Department, in a full-fledged opinion by Justice Tom, over a two-justice dissenting opinion by Justice Acosta, determined the trial court properly dismissed the count of the indictment which charged possession of a BB gun. Defendant was charged with possession of the BB gun as well as possession of a 9 mm handgun. It was alleged defendant threw both under a car as the police approached. Defendant produced a declaration (against penal interest) by a non-testifying witness (Ramsanany) who claimed (in the declaration) the handgun was his. In rebuttal the People presented a detective (DeLoren) who testified Ramsanany, when confronted, admitted his declaration about owning the handgun was a lie. The dissent argued the BB gun count should have gone to the jury, as it was an integral part of the defense and would not have caused jury confusion. The trial court ruled that the BB gun count could confuse the jury and lead to a compromise verdict:

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FROM THE DISSENT:

I disagree with the majority’s position that submission of the air pistol count “could only confuse” the jury. Indeed, in allowing testimony about Ramsanany’s declaration that he, and not defendant, possessed the 9 millimeter Taurus pistol, the court necessarily found that it did not confuse the issues or mislead the jury  … .

In any event, under the circumstances, submission of the air pistol charge would not have distracted the jury or merely allowed it to reach a verdict based on mercy or compromise; rather, submission of the charge would have helped the jury arrive at a fair verdict if it had credited the defense, a defense supported by defendant’s and Gil’s testimony and Ramsanany’s declaration, as well as the lack of DNA or fingerprint evidence indicating which pistols were in defendant’s possession. Instead, because the court dismissed the air pistol count, the jury had no basis on which to convict defendant of possession of only the air pistol, and not the 9 millimeter Taurus pistol, even if it credited the defense, leaving the jury to convict defendant of a more serious offense or acquit him altogether. This was particularly troubling, given that Ramsanany did not testify at trial. Any claims by the prosecution that Ramsanany was coerced by defendant into assuming criminal responsibility for the air pistol could only have been explored through Detective DeLoren. It seems to me patently unfair to provide Ramsanany’s declaration and DeLoren’s rebuttal to the jury and then essentially tell the jury to forget about that testimony and focus only on the 9 millimeter Taurus pistol. People v Boyd, 2017 NY Slip Op 04809, 1st Dept 6-13-17

 

CRIMINAL LAW (TRIAL COURT DID NOT ABUSE ITS DISCRETION IN NOT LETTING THE POSSESSION-OF-A BB-GUN COUNT GO TO THE JURY BECAUSE THE COUNT COULD CONFUSE THE JURY AND LEAD TO A COMPROMISE VERDICT, DEFENDANT WAS CONVICTED OF POSSESSION OF A 9 MM HANDGUN)/JURY CONFUSION (CRIMINAL LAW, TRIAL COURT DID NOT ABUSE ITS DISCRETION IN NOT LETTING THE POSSESSION-OF-A BB-GUN COUNT GO TO THE JURY BECAUSE THE COUNT COULD CONFUSE THE JURY AND LEAD TO A COMPROMISE VERDICT, DEFENDANT WAS CONVICTED OF POSSESSION OF A 9 MM HANDGUN)/COMPROMISE VERDICT (CRIMINAL LAW, TRIAL COURT DID NOT ABUSE ITS DISCRETION IN NOT LETTING THE POSSESSION-OF-A BB-GUN COUNT GO TO THE JURY BECAUSE THE COUNT COULD CONFUSE THE JURY AND LEAD TO A COMPROMISE VERDICT, DEFENDANT WAS CONVICTED OF POSSESSION OF A 9 MM HANDGUN)

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED, EXTENSIVE DISSENT ARGUES NEWLY DISCOVERED THIRD-PARTY ADMISSIONS REQUIRE A NEW TRIAL.

The Fourth Department, over an extensive, comprehensive dissent, determined defendant’s motion to vacate his conviction was properly denied. The defendant was convicted of kidnapping a woman (Heidi) who has never been seen since. The dissent argued newly discovered evidence, third-party admissions, required a new trial. The decision is fact-based and cannot be fairly summarized here:

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FROM THE DISSENT (JUSTICE CENTRA):

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I respectfully dissent. I agree with the majority that County Court properly rejected that part of defendant’s motion alleging a Brady violation inasmuch as defendant did not meet his burden of establishing that the alleged Brady material was suppressed by the People. I further agree with the majority that the court properly precluded defendant from introducing certain evidence that did not involve third-party admissions. I also agree with the majority that defendant failed to establish his entitlement to relief through an actual innocence claim … . I agree with defendant, however, that he established his entitlement to a new trial based on newly discovered evidence. I would therefore reverse the order, grant the motion, vacate the judgment of conviction, and grant a new trial. * * *

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“When considering the reliability of a declaration, courts should . . . consider the circumstances of the statement, such as, among other things, the declarant’s motive in making the statement—i.e., whether the declarant exculpated a loved one or inculpated someone else, the declarant’s personality and mental state, and the internal consistency and coherence of the declaration’ ” … . Here, Steen, Breckenridge, and Wescott were not related to defendant and were not his friends, and thus had no reason to exonerate him or implicate themselves or their friends in Heidi’s disappearance. Wescott’s statement to Priest revealed that she did not like discussing what happened to Heidi, and she showed fear and reluctance to speak to the police about it. The third-party admissions were made to people they knew, not strangers, and were made to provide explanations, rather than mere theories, to the listener as to what actually happened to Heidi. The majority notes that many of the third-party admissions were inconsistent with each other. At first blush, that seems to be the case inasmuch as the statements were that Heidi’s body was cut up and buried in a cabin, or burned in a wood stove in the cabin, or placed in a van that was sent to Canada to be salvaged. It is certainly possible, however, that all three of those events could have occurred.

I therefore conclude that the testimony of Priest, Braley, and Combes, and the statement of Wescott, would be admissible at defendant’s trial, and that evidence would probably change the result of the trial … . People v Thibodeau, 2017 NY Slip Op 04577, 4th Dept 6-9-17

 

CRIMINAL LAW (VACATE CONVICTION, MOTION TO, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED, EXTENSIVE DISSENT ARGUES NEWLY DISCOVERED EVIDENCE REQUIRES A NEW TRIAL)/EVIDENCE (CRIMINAL LAW, NEWLY DISCOVERED EVIDENCE, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED, EXTENSIVE DISSENT ARGUES NEWLY DISCOVERED EVIDENCE REQUIRES A NEW TRIAL)/VACATE CONVICTION, MOTION TO (DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED, EXTENSIVE DISSENT ARGUES NEWLY DISCOVERED EVIDENCE REQUIRES A NEW TRIAL)/ADMISSIONS (CRIMINAL LAW, THIRD PARTY ADMISSIONS, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED, EXTENSIVE DISSENT ARGUES NEWLY DISCOVERED THIRD-PARTY ADMISSIONS, REQUIRE A NEW TRIAL)

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DEFENDANT’S STATEMENT THAT HE HAD A HANDGUN SHOULD HAVE BEEN SUPPRESSED, HOWEVER THE HANDGUN WOULD HAVE BEEN DISCOVERED ABSENT THE STATEMENT AND WAS ADMISSIBLE, THE SUPPRESSION ERROR THEREFORE COULD NOT HAVE AFFECTED DEFENDANT’S DECISION TO PLEAD GUILTY.

The Fourth Department, over a two-justice dissent, determined defendant’s statement should have been suppressed because he was in custody, not warned of his Miranda rights, and was asked questions designed to elicit an incriminating response. However, although the statement he had a firearm should have been suppressed, the firearm would have been discovered even if the statement had not been made (inevitable discovery doctrine). Therefore the firearm need not be suppressed. Even though the conviction was by guilty plea, the court determined the suppression error could not have affected the defendant’s decision to plead guilty and the conviction was affirmed:

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Here, defendant’s statement admitting his possession of the handgun was the tainted primary evidence arising from the unlawful pre-Miranda custodial interrogation and must be suppressed … ; however, the inevitable discovery doctrine applies to the handgun as secondary evidence arising therefrom … . We conclude that there was a ” very high degree of probability’ ” that the officers would have discovered the firearm, which was found inside the right leg of defendant’s pants during a lawful and routine search of defendant’s person prior to his attempted flight … .

Although defendant’s statement admitting to the possession of the firearm should have been suppressed, we conclude that the particular circumstances of this case permit the rare application of the harmless error rule to defendant’s guilty plea … . “[W]hen a conviction is based on a plea of guilty an appellate court will rarely, if ever, be able to determine whether an erroneous denial of a motion to suppress contributed to the defendant’s decision, unless at the time of the plea he states or reveals his reason for pleading guilty” … . “The … doctrine is not absolute, however, and [the Court of Appeals has] recognized that a guilty plea entered after an improper court ruling may be upheld if there is no reasonable possibility that the error contributed to the plea’ ” … . In our view, because the firearm was not suppressed and would have been admissible at trial, there is no reasonable possibility that the court’s error in failing to suppress defendant’s statement admitting possession of the firearm contributed to his decision to plead guilty … . People v Clanton, 2017 NY Slip Op 04579, 4th Dept 6-9-17

CRIMINAL LAW (DEFENDANT’S STATEMENT THAT HE HAD A HANDGUN SHOULD HAVE BEEN SUPPRESSED, HOWEVER THE HANDGUN WOULD HAVE BEEN DISCOVERED ABSENT THE STATEMENT AND WAS ADMISSIBLE, THE SUPPRESSION ERROR THEREFORE COULD NOT HAVE AFFECTED DEFENDANT’S DECISION TO PLEAD GUILTY)/EVIDENCE (SUPPRESSION, INEVITABLE DISCOVERY, (DEFENDANT’S STATEMENT THAT HE HAD A HANDGUN SHOULD HAVE BEEN SUPPRESSED, HOWEVER THE HANDGUN WOULD HAVE BEEN DISCOVERED ABSENT THE STATEMENT AND WAS ADMISSIBLE, THE SUPPRESSION ERROR THEREFORE COULD NOT HAVE AFFECTED DEFENDANT’S DECISION TO PLEAD GUILTY)/SUPPRESS, MOTION TO (DEFENDANT’S STATEMENT THAT HE HAD A HANDGUN SHOULD HAVE BEEN SUPPRESSED, HOWEVER THE HANDGUN WOULD HAVE BEEN DISCOVERED ABSENT THE STATEMENT AND WAS ADMISSIBLE, THE SUPPRESSION ERROR THEREFORE COULD NOT HAVE AFFECTED DEFENDANT’S DECISION TO PLEAD GUILTY)/SEARCH AND SEIZURE (INEVITABLE DISCOVERY, DEFENDANT’S STATEMENT THAT HE HAD A HANDGUN SHOULD HAVE BEEN SUPPRESSED, HOWEVER THE HANDGUN WOULD HAVE BEEN DISCOVERED ABSENT THE STATEMENT AND WAS ADMISSIBLE, THE SUPPRESSION ERROR THEREFORE COULD NOT HAVE AFFECTED DEFENDANT’S DECISION TO PLEAD GUILTY)/GUILTY PLEA (SUPPRESSION ERROR COULD NOT HAVE AFFECTED DECISION TO PLEAD GUILTY, CONVICTION AFFIRMED)/HARMLESS ERROR (GUILTY PLEA, SUPPRESSION ERROR COULD NOT HAVE AFFECTED DECISION TO PLEAD GUILTY, CONVICTION AFFIRMED)

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