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TAKING A WOMAN’S DOG FOR A WALK WAS A VIOLATION OF PROBATION, THE WOMAN HAD A MISDEMEANOR DWI CONVICTION, THEREFORE THE PROBATIONER ASSOCIATED WITH A CONVICTED CRIMINAL.

The Third Department, over a two-justice dissent, determined the probation violation petition gave sufficient notice of the charges and a woman (Nichols) who had been convicted of misdemeanor DWI was a “convicted criminal” within the meaning of a condition of probation (prohibiting association with convicted criminals). The court held that it was not necessary to prove petitioner knew of the DWI conviction. The probationer apparently went to the Nichol’s apartment for the purpose of taking a dog for a walk. The dissent argued that simply taking a dog for a walk  was not “contact” or “association” with a convicted criminal:

Special condition No. 17 required defendant to refrain from associating with “convicted criminals” — as opposed to “known criminals.” Accordingly, defendant cannot avoid a violation of the subject condition simply by claiming either that he did not know that a particular individual had been convicted of a crime or that he believed that said individual was guilty of only a traffic violation. …

With respect to the issue of whether defendant “associate[d]” with Nichols within the meaning of special condition No. 17, the testimony at the hearing further demonstrated that, on approximately four occasions … , defendant called either Nichols or her daughter and thereafter went to Nichols’ apartment for the purpose of picking up and walking the dog that defendant and Nichols once shared. Notably, Nichols confirmed that she spoke with defendant, with whom she remained friends, on the telephone to make arrangements regarding the dog and testified that she personally exchanged the dog with defendant “[a]bout four times,” stating, “I would hand him the dog and he would take the dog and go down the street.” People v Kislowski, 2016 NY Slip Op 08261, 3rd Dept 12-8-16

 

CRIMINAL LAW (TAKING A WOMAN’S DOG FOR A WALK WAS A VIOLATION OF PROBATION, THE WOMAN HAD A MISDEMEANOR DWI CONVICTION, THEREFORE THE PROBATIONER ASSOCIATED WITH A CONVICTED CRIMINAL)/EVIDENCE (CRIMINAL LAW, TAKING A WOMAN’S DOG FOR A WALK WAS A VIOLATION OF PROBATION, THE WOMAN HAD A MISDEMEANOR DWI CONVICTION, THEREFORE THE PROBATIONER ASSOCIATED WITH A CONVICTED CRIMINAL)/PROBATION (VIOLATION, TAKING A WOMAN’S DOG FOR A WALK WAS A VIOLATION OF PROBATION, THE WOMAN HAD A MISDEMEANOR DWI CONVICTION, THEREFORE THE PROBATIONER ASSOCIATED WITH A CONVICTED CRIMINAL)

FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, TRIAL JUDGE DID NOT MAKE A SUFFICIENT INQUIRY WHEN THE JUROR EXPRESSED DOUBT SHE COULD BE FAIR.

The First Department, over a two-justice dissent, determined defense counsel’s “for cause” challenge to a juror (Ms. J) should have been granted. Two of the juror’s siblings had been the victims of serious crimes. Although the juror, at one point, indicated she could be fair, she subsequently expressed doubt and the trial judge did not make any further inquiry at that point:

 

While it is true that the trial judge in this case asked Ms. J. on October 5, 2011 whether the crimes suffered by her siblings would affect her ability to be fair, the judge did not repeat this inquiry the next day when Ms. J. repeated her belief that her siblings’ experience might affect her ability to be fair. Defense counsel’s general inquiry into whether Ms. J. would have difficulty returning a not guilty verdict if she had a reasonable doubt was insufficient to elicit an unequivocal assurance of her impartiality, as this questioning failed to confront the very issue she had raised: that her siblings’ experiences would affect her, thus making it less likely that she might have any reasonable doubt. Just as defense counsel’s venire-wide inquiry in Arnold did not directly address a prospective juror’s personal bias, in this case, defense counsel’s general inquiry about reasonable doubt did not directly address the concerns of bias raised by Ms. J. on October 6, 2011.

…[W]e [also] find that the totality of Ms. J.’s responses did not indicate that she could set aside what happened to her brother and sister. People v Small, 2016 NY Slip Op 08293, 1st Dept 12-8-16

 

CRIMINAL LAW (FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, TRIAL JUDGE DID NOT MAKE A SUFFICIENT INQUIRY WHEN THE JUROR EXPRESSED DOUBT SHE COULD BE FAIR)/JURORS (CRIMINAL, FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, TRIAL JUDGE DID NOT MAKE A SUFFICIENT INQUIRY WHEN THE JUROR EXPRESSED DOUBT SHE COULD BE FAIR)

 

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PEOPLE DID NOT DEMONSTRATE DEFENDANT WAS AWARE OF THE VICTIM’S AGE, FACTOR 7 SHOULD NOT HAVE BEEN APPLIED TO THE RISK ASSESSMENT.

The Second Department, reversing Supreme Court, determined the People did not demonstrate the defendant was aware of the victim’s age when establishing the relationship for sexual purposes. The victim indicated she was 18 in her online profile:

… [I]n enacting SORA, the Legislature expressly stated that it was especially concerned with “predatory acts”: “[t]he legislature finds that the danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, and . . . the protection of the public from these offenders, is of paramount concern or interest to the government” … . This language convinces us that “for the primary purpose of victimization,” as used in risk factor 7 and relevant to this case, requires proof that the defendant knew when establishing or promoting the relationship for sexual purposes that the victim was underage. In cases where the SORA offense is a crime because of the victim’s age, risk factor 7 does not apply to offenders who may have established the relationship for sexual purposes, but without having reason to know the victim’s age at that time … . People v Jordan, 2016 NY Slip Op 08212, 2nd Dept 12-7-16

 

CRIMINAL LAW (SORA, PEOPLE DID NOT DEMONSTRATE DEFENDANT WAS AWARE OF THE VICTIM’S AGE, FACTOR 7 SHOULD NOT HAVE BEEN APPLIED TO THE RISK ASSESSMENT)/EVIDENCE (CRIMINAL LAW, SORA, PEOPLE DID NOT DEMONSTRATE DEFENDANT WAS AWARE OF THE VICTIM’S AGE, FACTOR 7 SHOULD NOT HAVE BEEN APPLIED TO THE RISK ASSESSMENT)/SEX OFFENDER REGISTRATION ACT (SORA) (PEOPLE DID NOT DEMONSTRATE DEFENDANT WAS AWARE OF THE VICTIM’S AGE, FACTOR 7 SHOULD NOT HAVE BEEN APPLIED TO THE RISK ASSESSMENT)

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GRAND JURY TESTIMONY IS PROPERLY CONSIDERED IN A SORA RISK-LEVEL PROCEEDING.

The Second Department determined the SORA court properly considered grand jury testimony in assessing the risk level:

The defendant argues that the People’s disclosure of grand jury minutes in this case violated CPL 190.25(4), citing Matter of District Attorney of Suffolk County (58 NY2d 436, 444, 446), which ruled that grand jury minutes cannot be disclosed in a civil proceeding without a demonstration of a “compelling and particularized need” and that it is “impossible” to make a case without the grand jury minutes. However, this argument has been uniformly rejected by the courts … . Correction Law § 168-n(3) states that the court in a SORA proceeding “shall review any victim’s statement,” which includes a victim’s testimony before the grand jury … . Grand jury testimony constitutes reliable hearsay that is sufficient for SORA purposes … . Where grand jury testimony is “undermined by other more compelling evidence,” it need not be credited unless corroborated by other evidence … . However, in this case, no conflicting evidence was submitted. People v Harmon, 2016 NY Slip Op 08210, 2nd Dept 12-7-16

 

CRIMINAL LAW (GRAND JURY TESTIMONY IS PROPERLY CONSIDERED IN A SORA RISK-LEVEL PROCEEDING)/EVIDENCE (SORA PROCEEDING, GRAND JURY TESTIMONY IS PROPERLY CONSIDERED IN A SORA RISK-LEVEL PROCEEDING)/SEX OFFENDER REGISTRAION ACT (SORA) (GRAND JURY TESTIMONY IS PROPERLY CONSIDERED IN A SORA RISK-LEVEL PROCEEDING)/GRAND JURY TESTIMONY (SORA PROCEEDING, GRAND JURY TESTIMONY IS PROPERLY CONSIDERED IN A SORA RISK-LEVEL PROCEEDING)

GUILTY PLEA INDUCED BY AN UNFULFILLED PROMISE VACATED.

The Second Department vacated defendant’s conviction because the guilty plea was induced by an unfulfilled promise:

In June 2013, the defendant pleaded guilty to attempted assault in the second degree and assault in the third degree. Pursuant to the plea agreement, the defendant was advised that if he failed to complete a Mental Health Court program, the court would sentence him to a term of imprisonment on his plea of guilty to attempted assault in the second degree, and that his plea of guilty to assault in the third degree would be vacated. The defendant did not successfully complete the program. At sentencing, however, instead of vacating the defendant’s plea of guilty to assault in the third degree, the County Court sentenced the defendant to a term of imprisonment upon that plea, to run concurrently with the term of imprisonment imposed on his conviction of attempted assault in the second degree.

“[A] guilty plea induced by an unfulfilled promise either must be vacated or the promise honored”… .  People v Rohan, 2016 NY Slip Op 08251, 2nd Dept 12-7-16

 

CRIMINAL LAW (GUILTY PLEA INDUCED BY AN UNFULFILLED PROMISE VACATED)/SENTENCING (GUILTY PLEA INDUCED BY AN UNFULFILLED PROMISE VACATED)

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THE DECISION TO CALL OR NOT CALL A WITNESS IS ENTIRELY THE PROVINCE OF DEFENSE COUNSEL, WHETHER OR NOT THE DEFENDANT AGREES.

The First Department determined defendant was not deprived of his right to call his codefendant as a witness. Although he strongly expressed his wish to do so, defense counsel properly exercised professional judgment in deciding against calling the witness:

“If defense counsel solely defers to a defendant, without exercising his or her professional judgment, on a decision that is for the attorney, not the accused, to make because it is not fundamental, the defendant is deprived of the expert judgment of counsel to which the Sixth Amendment entitles him or her” … . Whether to call a witness is a strategic decision to be made by defense counsel … . Moreover, counsel had a sound reason for not calling the codefendant, who, in his plea allocution, had implicated defendant in the drug sale. To the extent defendant is claiming ineffective assistance of counsel, that claim is likewise without merit … . People v Sheard, 2016 NY Slip Op 08186, 1st Dept 12-6-16

 

CRIMINAL LAW (THE DECISION TO CALL OR NOT CALL A WITNESS IS ENTIRELY THE PROVINCE OF DEFENSE COUNSEL, WHETHER OR NOT THE DEFENDANT AGREES)/ATTORNEYS (CRIMINAL, THE DECISION TO CALL OR NOT CALL A WITNESS IS ENTIRELY THE PROVINCE OF DEFENSE COUNSEL, WHETHER OR NOT THE DEFENDANT AGREES)

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DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, HE ADEQUATELY ALLEGED DEFENSE COUNSEL GAVE HIM WRONG INFORMATION ABOUT THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA VERSUS A CONVICTION AFTER TRIAL.

The First Department determined defendant was entitled to hearing on his motion to vacate the judgment of conviction. Defendant alleged he was erroneously told he would not be deported if he pled guilty to a drug sale, but could be deported if convicted after trial:

This case presents factual issues requiring a hearing into whether defendant was deprived of effective assistance of counsel under People v McDonald (1 NY3d 109 [2003]) by way of erroneous and prejudicial immigration advice. Defendant alleges that his attorney erroneously advised him that if he pleaded guilty to a drug sale count with a sentence of probation, he would not be subject to deportation, but if he refused the plea offer, proceeded to trial and lost, he would go to prison and then be deported. Defendant’s claim is corroborated, to some extent, by statements made to present counsel by the attorney who represented defendant at the time of the plea … . The standard “no other promises” disclaimer in defendant’s plea allocution does not, as a matter of law, defeat his claim of erroneous legal advice. This case warrants a hearing at which defendant may establish the advice he actually received regarding the deportation consequences of his plea. …

This case also warrants a hearing on the prejudice prong of defendant’s claim. Defendant made a sufficient showing to raise an issue of fact as to whether he could have rationally rejected the plea offer under all the circumstances of the case, including the serious consequences of deportation and his incentive to remain in the United States … . Further, defendant sufficiently alleges that if immigration consequences had been factored into the plea bargaining process, counsel might have been able to negotiate a different plea agreement that would not have resulted in automatic deportation. People v Santos, 2016 NY Slip Op 08169, 1st Dept 12-6-16

 

CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, HE ADEQUATELY ALLEGED DEFENSE COUNSEL GAVE HIM WRONG INFORMATION ABOUT THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA VERSUS A CONVICTION AFTER TRIAL)/ATTORNEYS (INEFFECTIVE ASSISTANCE, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, HE ADEQUATELY ALLEGED DEFENSE COUNSEL GAVE HIM WRONG INFORMATION ABOUT THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA VERSUS A CONVICTION AFTER TRIAL)/INEFFECTICE ASSISTANCE (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, HE ADEQUATELY ALLEGED DEFENSE COUNSEL GAVE HIM WRONG INFORMATION ABOUT THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA VERSUS A CONVICTION AFTER TRIAL)/VACATE CONVICTION, MOTION TO (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, HE ADEQUATELY ALLEGED DEFENSE COUNSEL GAVE HIM WRONG INFORMATION ABOUT THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA VERSUS A CONVICTION AFTER TRIAL)

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MURDER CONVICTION REVERSED, AGAINST THE WEIGHT OF THE EVIDENCE.

The Third Department reversed defendant’s murder conviction, finding it against the weight of the evidence. The victim, who died from blunt force trauma to the abdomen, was defendant’s two-year-old son. The forensic evidence placed the time of the injury during a period when defendant was not home. Contradictions in witness testimony rendered it too weak to support the conviction. The Third Department went through the trial evidence in detail. The evidence cannot be fairly summarized here. People v Taft, 2016 NY Slip Op 08123, 3rd Dept 12-1-16

CRIMINAL LAW (MURDER CONVICTION REVERSED, AGAINST THE WEIGHT OF THE EVIDENCE)/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, MURDER CONVICTION REVERSED, AGAINST THE WEIGHT OF THE EVIDENCE)/APPEALS (CRIMINAL LAW, MURDER CONVICTION REVERSED, AGAINST THE WEIGHT OF THE EVIDENCE)

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DEFENSE COUNSEL INEFFECTIVE FOR FAILURE TO MOVE TO SEVER AT TRIAL AFTER AN ANTAGONISTIC DEFENSE WAS PURSUED BY THE CO-DEFENDANT.

The Second Department, reversing the conviction, determined the defense attorney’s failure to move to sever the defendant’s trial from the co-defendant’s and request a missing witness charge constituted ineffective assistance. The need for severance became apparent during the trial when counsel for the co-defendant pursued a defense antagonistic to that of the defendant. The court noted the motion for severance can be made any time before the end of the trial when the defendant could not previously have been aware of the basis for it:

Where a defendant claims prejudice as a result of a joint trial because his defense is antagonistic to that of a codefendant, “severance is not required solely because of hostility between the parties, differences in their trial strategies or inconsistencies in their defenses” … . However, “severance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant’s guilt” … . Thus, severance should be granted where the defenses are not only antagonistic, but also mutually exclusive and irreconcilable … . Although a severance motion must generally be made before the commencement of trial … , CPL 255.20(3) permits a pretrial motion to be made and decided “at any time before the end of trial” when “the defendant could not, with due diligence, have been previously aware” of the basis for the motion. CPL 255.20(3) further provides that the court may, “in the interest of justice, and for good cause shown,” entertain and dispose of a pretrial motion “at any time before sentence.” People v Davydov, 2016 NY Slip Op 08090, 2nd Dept 11-30-16

CRIMINAL LAW (DEFENSE COUNSEL INEFFECTIVE FOR FAILURE TO MOVE TO SEVER AT TRIAL AFTER AN ANTAGONISTIC DEFENSE WAS PURSUED BY THE CO-DEFENDANT)/ATTORNEYS (CRIMINAL, DEFENSE COUNSEL INEFFECTIVE FOR FAILURE TO MOVE TO SEVER AT TRIAL AFTER AN ANTAGONISTIC DEFENSE WAS PURSUED BY THE CO-DEFENDANT)/INEFFECTIVE ASSISTANCE (DEFENSE COUNSEL INEFFECTIVE FOR FAILURE TO MOVE TO SEVER AT TRIAL AFTER AN ANTAGONISTIC DEFENSE WAS PURSUED BY THE CO-DEFENDANT)/SEVERANCE, MOTION FOR (DEFENSE COUNSEL INEFFECTIVE FOR FAILURE TO MOVE TO SEVER AT TRIAL AFTER AN ANTAGONISTIC DEFENSE WAS PURSUED BY THE CO-DEFENDANT)

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CIVIL MATTER PROPERLY STAYED UNTIL RELATED CRIMINAL MATTER RESOLVED, DISCRETIONARY CRITERIA EXPLAINED.

The Second Department determined Supreme Court properly stayed a civil matter after the defendant was indicted in a related criminal matter and indicated he would invoke his Fifth Amendment right to remain silent if the civil matter went forward:

A motion pursuant to CPLR 2201 to stay a civil action pending resolution of a related criminal action is directed to the sound discretion of the trial court … . “Factors to consider include avoiding the risk of inconsistent adjudications, [duplication] of proof and potential waste of judicial resources. A compelling factor is a situation where a defendant will invoke his or her constitutional right against self incrimination” … . “Although the pendency of a criminal proceeding does not give rise to an absolute right under the United States or New York State Constitutions to a stay of a related civil proceeding . . . there is no question but that the court may exercise its discretion to stay proceedings in a civil action until a related criminal dispute is resolved” … .

Here, this action and the criminal proceeding against Samuel arise from the same facts. While a stay may cause inconvenience and delay to the plaintiffs, the failure to grant the stay would cause Samuel to “suffer the severe prejudice of being deprived of a defense” … . Moreover, a prior determination in the criminal proceeding could have collateral estoppel effect in this action, thereby simplifying the issues … . Mook v Homesafe Am., Inc., 2016 NY Slip Op 08054, 2nd Dept 11-30-16

 

CIVIL PROCEDURE (CIVIL MATTER PROPERLY STAYED UNTIL RELATED CRIMINAL MATTER RESOLVED)/CRIMINAL LAW (CIVIL MATTER PROPERLY STAYED UNTIL RELATED CRIMINAL MATTER RESOLVED)

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