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EMERGENCY DOCTRINE DID NOT JUSTIFY ENTRY INTO HOME, EXPLOSIVES, DRUGS, GUNS, FORGED CURRENCY SUPPRESSED.

The Second Department, reversing defendant’s conviction and dismissing the indictment, determined the emergency doctrine did not justify entrance into the home where hand grenades, guns, forged gun permits, explosives, marijuana and forged currency were seized. The police had responded to a silent alarm and found defendant working on a car outside the home. After questioning the defendant, the defendant unlocked to door of the home (to show the police he had keys to the home). When the defendant attempted to go inside and shut the door, the police pushed their way in and saw two hand grenades and a gun:

In the evaluation of whether a warrantless entry was justified under the “emergency doctrine,” the evidence must establish as a threshold matter that the police had “an objectively reasonable basis for believing that a person within [the house] is in need of immediate aid” … . Under the Fourth Amendment, the officers’ subjective belief is irrelevant: “[a]n action is reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify [the] action'” … .

Here, the evidence at the suppression hearing fell short of the required threshold showing because it did not establish that the circumstances known to the police when they entered the house supported an objectively reasonable belief that entry was needed to render emergency assistance to an injured occupant or to protect an occupant from imminent injury … . The police were responding, in the early afternoon, to the type of notification that, in their experience, was usually a false alarm, not an emergency. Indeed, the People agree that the triggering of the alarm did not in itself permit the police to enter the house under the emergency doctrine. When the police arrived, they found the defendant, a middle-aged man, openly working on a van in the driveway. He had a key to the house. He explained his connection to the house, and he gave the police his phone so his sister could corroborate what he said. Moreover, there was no sign of a break-in. Neither of the police officers testified that he had any inkling that there were guns and other weaponry in the house. Their testimony was about their concern for the possible safety of anyone who might be in the house. Nothing, however, supported an objectively reasonable belief that “there was an emergency at hand requiring the immediate assistance of the police in order to protect life or property” … . Indeed, the facts known to the officers fell far short of the circumstances under which the emergency doctrine has been held applicable … . Simply put, this warrantless entry under the emergency doctrine was “unreasonable” (US Const Amend IV), because no facts then known supported a reasonable belief of an emergency. People v Ringel, 2016 NY Slip Op 08887, 2nd Dept 12-28-16

 

CRIMINAL LAW (EMERGENCY DOCTRINE DID NOT JUSTIFY ENTRY INTO HOME, EXPLOSIVES, DRUGS, GUNS, FORGED CURRENCY SUPPRESSED)/EVIDENCE (EMERGENCY DOCTRINE DID NOT JUSTIFY ENTRY INTO HOME, EXPLOSIVES, DRUGS, GUNS, FORGED CURRENCY SUPPRESSED)/SUPPRESS, MOTION TO (EMERGENCY DOCTRINE DID NOT JUSTIFY ENTRY INTO HOME, EXPLOSIVES, DRUGS, GUNS, FORGED CURRENCY SUPPRESSED)/SEARCH AND SIEZURE (EMERGENCY DOCTRINE DID NOT JUSTIFY ENTRY INTO HOME, EXPLOSIVES, DRUGS, GUNS, FORGED CURRENCY SUPPRESSED)/EMERGENCY DOCTRINE (CRIMINAL LAW, EMERGENCY DOCTRINE DID NOT JUSTIFY ENTRY INTO HOME, EXPLOSIVES, DRUGS, GUNS, FORGED CURRENCY SUPPRESSED)

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PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL, DETAILED EXPLANATION OFFERED.

The Second Department reversed defendant’s conviction solely on the basis of prosecutorial misconduct. The court offered a detailed explanation of the misconduct:

“[I]n summing up to the jury, [the prosecutor] must stay within the four corners of the evidence’ and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused” … .

Here, during that summation, the prosecutor directly attacked defense counsel’s role and his integrity. Specifically, the prosecutor raised a hypothetical that bore no relation to the evidence in the case and then suggested what defense counsel would have argued with respect to that irrelevant hypothetical, in effect, implying that the defense arguments were the product of expediency. This tactic invited the jury to reject defense counsel’s argument not on the merits, but merely because it was raised by defense counsel. We strongly disapprove of this attack on the legitimacy of defense counsel’s role … . The prosecutor also improperly referenced facts not in evidence in order to call for speculation by the jury … and misstated critical testimony provided by a defense witness, alleging that certain facts were “undisputed” when in fact they were disputed … .

The prosecutor improperly appealed to the jury’s sympathy and generalized fear of crime by asserting that the defendant possessed a loaded gun while families and children from the “20 residential buildings” were “everywhere” having “cookouts” and celebrating the Fourth of July, and that because the various police officers “did their jobs,” “fortunately, nothing happened.” These comments implied to the jury that the defendant intended to commit crimes with which he was not charged … . Furthermore, immediately upon praising the police officers who “did their jobs,” the prosecutor turned to the jury and advised that “[n]ow it’s your turn to uphold your oaths as jurors and do your jobs” by finding the defendant guilty. This type of “safe streets” argument is inflammatory and has repeatedly been disapproved by the courts … .

The prosecutor also compared the defendant’s in-court demeanor and appearance to how he appeared on the night of his arrest in order to argue that the jury should not be fooled into considering him a “gentleman” … . The prosecutor went so far as to point to the defendant’s precinct photo and stated that his appearance there represented his “true colors.” People v Brisco, 2016 NY Slip Op 08878, 2nd Dept 12-28-16

 

CRIMINAL LAW (PROSECUTORIAL MISCONDUCT REQURED REVERSAL, DETAILED EXPLANATION OFFERED)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT REQURED REVERSAL, DETAILED EXPLANATION OFFERED)/PROSECUTORIAL MISCONDUCT (PROSECUTORIAL MISCONDUCT REQURED REVERSAL, DETAILED EXPLANATION OFFERED)

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INDICTMENT COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY.

The Fourth Department determined the trial testimony rendered a count of the indictment duplicitous and dismissed it:

We agree with defendant that the third count of the indictment, charging defendant with engaging in anal sexual contact with the complainant by forcible compulsion, was rendered duplicitous by the complainant’s testimony … . The complainant testified that the acts of anal sexual contact occurred “more than once” over the course of a two-hour incident, and, contrary to the People’s contention, such acts did not constitute a continuous offense … , but rather were separate and distinct offenses … . People v Cox, 2016 NY Slip Op 08661, 4th Dept 12-23-16

CRIMINAL LAW (INDICTMENT COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY)/INDICTMENTS (INDICTMENT COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY)/EVIDENCE (INDICTMENT COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY)/DUPLICITOUS (INDICTMENT COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY)/SEXUAL ACT (CRIMINAL LAW, (INDICTMENT COUNT CHARGING CRIMINAL SEXUAL ACT RENDERED DUPLICITOUS BY TRIAL TESTIMONY)

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DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL.

The Fourth Department, reversing defendant’s convictions for criminal possession of a weapon, determined: (1) defendant was deprived of her right to present a defense when the court precluded questions that could reveal the complainant’s motive to lie; (2) prosecutorial misconduct warranted reversal (considered in the interest of justice; (3) allowing the prosecutor to cross-examine defendant about her failure to turn herself in warranted reversal (considered in the interest of justice); and (4) allowing a witness to refer to defendant as a drug dealer warranted reversal (considered in the interest of justice). With respect to the right to present a defense, the court wrote:

… [W]e conclude that defendant was improperly precluded from establishing that the complainant was engaged in a criminal enterprise and regularly purchased crack cocaine—therefore having good reason to possess a gun as compared to defendant. More importantly, that evidence, if credited by the jury, would demonstrate that the complainant had every reason to fabricate the story that the gun belonged to defendant and not her … . In addition, we conclude that the proffered evidence was admissible to complete the narrative of events, i.e., to provide background information as to how and why the complainant allegedly confronted defendant, and to explain the aggressive nature of the confrontation … . Applying those principles here, we conclude that defendant was denied her constitutional right to present a defense … . People v Horton, 2016 NY Slip Op 08727, 4th Dept 12-23-16

CRIMINAL LAW (DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/DEFENSE, RIGHT TO PRESENT (CRIMINAL LAW, DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/PROSECUTORIAL MISCONDUCT (DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/EVIDENCE (CRIMINAL LAW, DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)

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FAILURE TO HOLD A SANDOVAL HEARING AND ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL.

The Fourth Department, reversing defendant’s conviction, determined the court’s failure to hold a Sandoval hearing concerning the admissibility of prior uncharged crimes or bad acts as impeachment evidence required reversal. Defendant was in fact cross-examined about prior bad acts strikingly similar to the charges against him. In addition, the trial court erred in allowing testimony of prior consistent statements by the complaining witness, i.e., “bolstering:”

The Criminal Procedure Law provides that, “[u]pon a request by a defendant, the prosecutor shall notify the defendant of all specific instances of a defendant’s prior uncharged criminal, vicious or immoral conduct of which the prosecutor has knowledge and which the prosecutor intends to use at trial for purposes of impeaching the credibility of the defendant” (CPL 240.43). Here, however, the prosecutor failed “to advise defendant before trial that he would be questioned on uncharged acts if he testified[,] and no pretrial inquiry or determination was made by the court . . . Because the court’s failure to conduct a proper pretrial inquiry may have affected defendant’s decision to testify at trial, the error cannot be deemed harmless” … . …

“The term bolstering’ is used to describe the presentation in evidence of a prior consistent statement—that is, a statement that a testifying witness has previously made out of court that is in substance the same as his or her in-court testimony” … . Although “[p]rior consistent statements will often be less prejudicial to the opposing party than other forms of hearsay, since by definition the maker of the statement has said the same thing in court that he said out of it” … , the Court of Appeals has warned that “the admission of prior consistent statements may, by simple force of repetition, give to a [factfinder] an exaggerated idea of the probative force of a party’s case” … . Contrary to the People’s sole contention, “[i]n light of the importance of the witnesses’ credibility in this case . . . , we cannot conclude that the court’s error is harmless” … . People v Memon, 2016 NY Slip Op 08653, 4th Dept 12-23-16

 

CRIMINAL LAW (FAILURE TO HOLD A SANDOVAL HEARING AND ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)/EVIDENCE (CRIMINAL LAW, FAILURE TO HOLD A SANDOVAL HEARING AND ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)/SANDOVAL HEARING (FAILURE TO HOLD A SANDOVAL HEARING AND ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)/PRIOR CRIMES AND BAD ACTS (FAILURE TO HOLD A SANDOVAL HEARING AND ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)/PRIOR CONSISTENT STATEMENTS (CRIMINAL LAW, BOLSTERING, ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)/HEARSAY (CRIMINAL LAW, BOLSTERING, ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)/EVIDENCE (CRIMINAL LAW, BOLSTERING, ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)/BOLSTERING (CRIMINAL LAW, ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)

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PROSPECTIVE JUROR WHOSE SON IS MARRIED TO THE DISTRICT ATTORNEY SHOULD HAVE BEEN EXCUSED FOR CAUSE, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED.

The Fourth Department, reversing defendant’s conviction, determined the for cause challenge to a juror whose son is married to the district attorneys daughter should have been granted. The court further determined that a defense witness’s testimony that the victim said she didn’t “think [defendant] did this” should have been allowed:

… [T]he prospective juror should have been excused from service for cause on the ground that he bears a “relationship to [the District Attorney] of such nature that it [was] likely to preclude him from rendering an impartial verdict” … . …

… [T]he court erred in excluding testimony from a defense witness that the victim had said that she did not “think [defendant] did this,” meaning that defendant did not commit the alleged crime. We conclude that, on cross-examination of the victim, defense counsel had laid an adequate foundation for the admission of that prior inconsistent statement by eliciting testimony that the victim had never discussed the matter with the defense witness and had never told the defense witness that the alleged occurrence “between [her] and [defendant] might not have happened” … . People v Collins, 2016 NY Slip Op 08645, 4th Dept 12-23-16

 

CRIMINAL LAW (PROSPECTIVE JUROR WHOSE SON IS MARRIED TO THE DISTRICT ATTORNEY SHOULD HAVE BEEN EXCUSED FOR CAUSE, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED)/JURORS (CRIMINAL LAW, PROSPECTIVE JUROR WHOSE SON IS MARRIED TO THE DISTRICT ATTORNEY SHOULD HAVE BEEN EXCUSED FOR CAUSE, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED)/EVIDENCE  (CRIMINAL LAW, PROSPECTIVE JUROR WHOSE SON IS MARRIED TO THE DISTRICT ATTORNEY SHOULD HAVE BEEN EXCUSED FOR CAUSE, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED)/PRIOR INCONSISTENT STATEMENT (CRIMINAL LAW, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED)/HEARSAY (CRIMINAL LAW, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED)

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ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL.

Although deemed harmless error, the Fourth Department determined defendant was denied his right to counsel when the court permitted him to decide whether to request a jury charge on a lesser included offense (despite defense counsel advice that he should not):

“It is well established that a defendant, having accepted the assistance of counsel, retains authority only over certain fundamental decisions regarding the case’ such as whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal’ “… . On the other hand, defense counsel has ultimate decision making authority over matters of strategy and trial tactics, such as whether to seek a jury charge on a lesser included offense … . Here, the court “made plain that [it] would be guided solely by defendant’s choice in the matter, despite the defense attorney’s clearly stated views and advice to the contrary,” and thus the court “denied [defendant] the expert judgment of counsel to which the Sixth Amendment entitles him” … . People v Henley, 2016 NY Slip Op 08729, 4th Dept 12-23-16

CRIMINAL LAW (ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)/ATTORNEYS (CRIMINAL LAW, ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)/RIGHT TO COUNSEL (ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)/LESSER INCLUDED OFFENSES (ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)/JURY INSTRUCTIONS (CRIMINAL LAW, ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)

JUROR NEVER STATED SHE COULD PUT ASIDE HER BIAS IN FAVOR OF POLICE OFFICERS, FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED.

The Fourth Department reversed defendant’s conviction because a juror who expressed doubt she could be fair because of her close ties to law enforcement never stated she could put aside her bias toward police officers:

Although the prospective juror responded affirmatively to the court’s question whether she could base her decision in the case on what she heard and saw in the courtroom and the general question whether she could be fair and impartial … , she did not provide an “unequivocal assurance that . . . [she could] set aside [her] bias” toward police officers who would testify at the trial … . People v Griffin, 2016 NY Slip Op 08701, 4th Dept 12-23-16

CRIMINAL LAW (JUROR NEVER STATED SHE COULD PUT ASIDE HER BIAS IN FAVOR OF POLICE OFFICERS, FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED)/JURORS (CRIMINAL LAW,  (JUROR NEVER STATED SHE COULD PUT ASIDE HER BIAS IN FAVOR OF POLICE OFFICERS, FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED)/FOR CAUSE CHALLENGE (CRIMINAL LAW, JURORS, JUROR NEVER STATED SHE COULD PUT ASIDE HER BIAS IN FAVOR OF POLICE OFFICERS, FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED)

FAILURE TO COMPLETELY EXPLAIN POTENTIAL SENTENCES AND THE DISCREPANCY BETWEEN THE WRITTEN PLEA AGREEMENT AND THE COURT’S EXPLANATION INVALIDATED THE GUILTY PLEA.

The Fourth Department granted defendant’s motion to withdraw his guilty plea based upon the sentencing court’s failure to completely explain the possible sentences and the discrepancy between the written plea agreement and the court’s oral explanation. The Fourth Department further found that the corrections made to the plea agreement one week after the guilty did not cure the problem. Defendant was not afforded the opportunity to withdraw his plea:

Here, although the court during defendant’s arraignment articulated the terms of a plea offer that included the alternative sentences defendant would receive if he was or was not successful in the Judicial Diversion Program, the court did not state those alternative sentences on the record during the plea colloquy. Specifically, although the court stated during the plea colloquy that defendant would receive a “cap of felony probation if successful[,]” the court did not articulate the sentence that defendant would receive if he was unsuccessful.

Furthermore, the Judicial Diversion Program Contract (Contract) signed by defendant on the date he pleaded guilty contradicts the terms of the plea agreement set forth in the transcript of defendant’s arraignment. …

The Contract was amended and re-signed by defendant one week after defendant’s guilty plea was taken, and the Court of Appeals has made clear that the court must inform the defendant of the direct consequences of a plea “[p]rior to accepting a guilty plea”… . People v Streber, 2016 NY Slip Op 08683, 4th Dept 12-23-16

CRIMINAL LAW (FAILURE TO COMPLETELY EXPLAIN POTENTIAL SENTENCES AND THE DISCREPANCY BETWEEN THE WRITTEN PLEA AGREEMENT AND THE COURT’S EXPLANATION INVALIDATED THE GUILTY PLEA)/GUILTY PLEA, MOTION TO WITHDRAW (FAILURE TO COMPLETELY EXPLAIN POTENTIAL SENTENCES AND THE DISCREPANCY BETWEEN THE WRITTEN PLEA AGREEMENT AND THE COURT’S EXPLANATION INVALIDATED THE GUILTY PLEA)/SENTENCING (FAILURE TO COMPLETELY EXPLAIN POTENTIAL SENTENCES AND THE DISCREPANCY BETWEEN THE WRITTEN PLEA AGREEMENT AND THE COURT’S EXPLANATION INVALIDATED THE GUILTY PLEA)

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DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA.

The Fourth Department determined a hearing on defendant’s motion to withdraw his guilty plea should have been held. Defendant was charged with assault. 22 days before the assault defendant had undergone brain surgery. In his motion to withdraw his plea, defendant alleged he was told by his attorney the neurosurgeon had refused to testify if a psychiatric defense was raised. However, the neurosurgeon provided an affidavit stating he never spoke to defendant’s attorney and never refused to testify:

It is well settled that the determination whether to grant a motion to withdraw a guilty plea is within the court’s discretion and that a defendant is entitled to an evidentiary hearing only in rare instances … . The denial of such a motion is not an abuse of discretion “unless there is some evidence of innocence, fraud, or mistake in inducing the plea” … . Here, if the allegations in defendant’s affidavit are true, then defendant’s plea was not voluntarily and intelligently entered inasmuch as it was based upon a mistaken belief that a psychiatric defense was unavailable … . We therefore conclude that defendant’s motion was not “patently insufficient on its face” … , and that the court abused its discretion in denying the motion without an evidentiary hearing … . Thus, we hold the case, reserve decision, and remit the matter to County Court for a hearing on defendant’s motion. People v Noce, 2016 NY Slip Op 08632, 4th Dept 12-23-16

CRIMINAL LAW (DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA)/GUILTY PLEA, MOTION TO WITHDRAW (DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA)

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