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DEFENSE DID NOT OPEN THE DOOR TO HEARSAY EVIDENCE OF A CODEFENDANT’S CONVICTION; CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED.

The First Department, reversing the defendants’ fraud-related convictions, determined (1) the defense did not “open the door” to the admission of hearsay evidence that a nontestifying codefendant (Solomon) pled guilty in a related matter, and (2) the criteria for the business records exception to the hearsay rule were not met:

… [T]he inquiry whether a defendant opened the door to the admission of otherwise inadmissible evidence “is twofold — whether and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression” … .  * * *

A party seeking to introduce evidence under the exception must demonstrate that “each participant in the chain producing the record, from the initial declarant to the final entrant, [was] acting within the course of regular business conduct” when the record was made … . We find that although bank personnel were acting under a business duty when the record was created, the record fails to demonstrate that Solomon was acting under such a duty when he supplied the information at issue. People v Schlesinger Elec. Contrs., Inc., 2016 NY Slip Op 06742, 1st Dept 10-13-16

 

CRIMINAL LAW (DEFENSE DID NOT OPEN THE DOOR TO HEARSAY EVIDENCE OF A CODEFENDANT’S CONVICTION; CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED)/EVIDENCE (CRIMINAL LAW, DEFENSE DID NOT OPEN THE DOOR TO HEARSAY EVIDENCE OF A CODEFENDANT’S CONVICTION; CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED)/HEARSAY (CRIMINAL LAW, DEFENSE DID NOT OPEN THE DOOR TO HEARSAY EVIDENCE OF A CODEFENDANT’S CONVICTION; CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED)/OPEN THE DOOR (CRIMINAL LAW, DEFENSE DID NOT OPEN THE DOOR TO HEARSAY EVIDENCE OF A CODEFENDANT’S CONVICTION; CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED)/BUSINESS RECORDS EXCEPTION TO HEARSAY RULE (CRIMINAL LAW, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED)

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DEFENDANT ENTITLED TO A HEARING RE: WHETHER HIS CONVICTION SHOULD BE VACATED; DEFENDANT SUFFICIENTLY ALLEGED HE WAS NOT ADVISED OF THE DEPORTATION CONSEQUENCES OF THE PLEA, AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN AWARE OF THE CONSEQUENCES.

The Second Department determined defendant was entitled to a hearing on his motion to vacate his conviction based upon ineffective assistance of counsel. Defendant sufficiently alleged he was misinformed about the deportation consequences of his guilty plea and he would not have pled guilty if he had known of those consequences:

Here, the defendant alleged in an affidavit that his attorney advised him that there would be no immigration consequences to his plea of guilty if he was sentenced to not more than one year in jail, and that immigration authorities would not seek him out in Massachusetts, where he resided, since his case was in New York. * * * … [A]lthough the defendant’s claim of misadvice was based solely on his own sworn allegations, the defendant explained his failure to submit an affirmation from his former attorney and it is unlikely, as the People suggest, that there were witnesses to counsel’s provision of confidential advice or any documents created reflecting the content of that advice * * *

… [T]he defendant averred that he had been a lawful permanent resident for 24 years, that he had a 7-year-old son, that his parents and four siblings all lived in the United States, and that he was employed at the same job for 10 years. Further, if sentenced as a first felony drug offender, as he was in connection with his plea of guilty, the defendant’s sentencing exposure was a maximum of 5½ years of imprisonment (see Penal Law § 70.70[2][a][ii]). In light of these circumstances, there is a question of fact as to whether it is reasonably probable that the defendant would not have pleaded guilty had he been correctly advised as to the deportation consequences of the plea … . People v Roberts, 2016 NY Slip Op 06729, 2nd Dept 10-12-16

CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING RE: WHETHER HIS CONVICTION SHOULD BE VACATED; DEFENDANT SUFFICIENTLY ALLEGED HE WAS NOT ADVISED OF THE DEPORTATION CONSEQUENCES OF THE PLEA, AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN AWARE OF THE CONSEQUENCES)/VACATE CONVICTION, MOTION TO (DEFENDANT ENTITLED TO A HEARING RE: WHETHER HIS CONVICTION SHOULD BE VACATED; DEFENDANT SUFFICIENTLY ALLEGED HE WAS NOT ADVISED OF THE DEPORTATION CONSEQUENCES OF THE PLEA, AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN AWARE OF THE CONSEQUENCES)/ATTORNEYS (INEFFECTIVE ASSISTANCE, DEFENDANT ENTITLED TO A HEARING RE: WHETHER HIS CONVICTION SHOULD BE VACATED; DEFENDANT SUFFICIENTLY ALLEGED HE WAS NOT ADVISED OF THE DEPORTATION CONSEQUENCES OF THE PLEA, AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN AWARE OF THE CONSEQUENCES)/INEFFECTIVE ASSISTANCE DEFENDANT ENTITLED TO A HEARING RE: WHETHER HIS CONVICTION SHOULD BE VACATED; DEFENDANT SUFFICIENTLY ALLEGED HE WAS NOT ADVISED OF THE DEPORTATION CONSEQUENCES OF THE PLEA, AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN AWARE OF THE CONSEQUENCES)/DEPORTATION (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING RE: WHETHER HIS CONVICTION SHOULD BE VACATED; DEFENDANT SUFFICIENTLY ALLEGED HE WAS NOT ADVISED OF THE DEPORTATION CONSEQUENCES OF THE PLEA, AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN AWARE OF THE CONSEQUENCES)

PENNSYLVANIA BURGLARY CONVICTION CANNOT SERVE AS A PREDICATE FELONY IN NEW YORK.

The Second Department determined a Pennsylvania burglary conviction could not serve as a predicate felony in New York because of the absence of the “knowingly” element:

… [T]here is no element in the Pennsylvania statute comparable to the element in the analogous New York statute that an intruder “knowingly” enter or remain unlawfully in the premises (Penal Law § 140.20). The absence of this scienter requirement from the Pennsylvania burglary statute renders improper the use of the Pennsylvania burglary conviction as the basis of the defendant’s predicate felony adjudication … . People v Flores, 2016 NY Slip Op 06723, 2nd Dept 10-12-16

CRIMINAL LAW (PENNSYLVANIA BURGLARY CONVICTION CANNOT SERVE AS A PREDICATE FELONY IN NEW YORK)/PREDICATE FELONY (PENNSYLVANIA BURGLARY CONVICTION CANNOT SERVE AS A PREDICATE FELONY IN NEW YORK)/SECOND FELONY OFFENDER (PENNSYLVANIA BURGLARY CONVICTION CANNOT SERVE AS A PREDICATE FELONY IN NEW YORK)

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CONVICTION BASED SOLELY ON DEFENDANT’S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE.

The Fourth Department determined defendant’s sexual abuse conviction, which was based solely on defendant’s confession, was against the weight of the evidence:

CPL 60.50 requires corroboration of such a confession: “A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.” Here, there is no such corroboration. The People assert that defendant’s confession “was sufficiently corroborated by the testimony of the child victim and her numerous hearsay disclosures solicited by the defense.” The record does not support that assertion, however, inasmuch as the victim never testified that she touched defendant’s penis with her hand, and there is no other evidence—hearsay or otherwise—independent of defendant’s confession to support defendant’s conviction of sexual abuse. Although it is well settled that “additional proof need not corroborate every detail of the confession,’ ” we conclude that defendant’s conviction of sexual abuse in the first degree was “based solely on [defendant’s] uncorroborated [confession]” … . Since there was “no corroborating proof of whatever weight,’ [count two of the indictment] must be dismissed” … . People v Maynard, 2016 NY Slip Op 06573, 4th Dept 10-7-16

CRIMINAL LAW (CONVICTION BASED SOLELY ON DEFENDANT’S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE)/EVIDENCE (CRIMINAL LAW, CONVICTION BASED SOLELY ON DEFENDANT’S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE)/CONFESSIONS (CONVICTION BASED SOLELY ON DEFENDANT’S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE

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DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE.

The Fourth Department reversed defendant’s conviction and ordered a new trial because of prosecutorial misconduct to which defense counsel did not object. The prosecutor grossly exaggerated the nature and importance of DNA evidence found on a weapon. Defense counsel’s failure to object constituted ineffective assistance:

At trial, the People presented testimony of a forensic expert to discuss DNA evidence collected from the gun, but the testimony was not conclusive. The expert testified that she analyzed the DNA mixture and determined that defendant was among 1 in 15 Americans who could not be excluded as a contributor. Nevertheless, on summation, the prosecutor grossly exaggerated the DNA evidence as “overwhelming” proof establishing defendant’s “guilt beyond all doubt” and posited: “If the defendant had not possessed the gun, wouldn’t science have excluded him?” In our view, the prosecutor’s flagrant distortion of the DNA evidence caused defendant such substantial prejudice that he was denied due process of law, particularly in light of the circumstantial nature of the People’s case … . In light of the foregoing, we agree with defendant’s related contention that he was denied effective assistance of counsel owing to defense counsel’s failure to object to the prosecutor’s misconduct during summation … . People v Rozier, 2016 NY Slip Op 06577, 4th Dept 10-7-16

CRIMINAL LAW (DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/EVIDENCE (CRIMINAL LAW, DNA, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/PROSECUTORIAL MISCONDUCT (DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/INEFFECTIVE ASSISTANCE (DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/DNA (CRIMINAL LAW, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)

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DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS.

The Fourth Department determined defendant was entitled to a hearing on her motion to vacate her conviction on ineffective assistance grounds. Defendant testified her husband’s neck was cut in a struggle for the knife her husband had used to attack her. The People apparently argued defendant’s wounds were self-inflicted. There was evidence of a wound behind defendant’s left armpit which could not have been self-inflicted. The Fourth Department held that defense counsel’s failure to show the jury the wound, failure to engage an expert concerning the wound, failure to examine defendant’s clothing and failure to show the clothing to the jury could amount to ineffective assistance of counsel because such evidence would demonstrate the wound behind the armpit was not surgical in origin (as was argued at trial). A hearing, therefore, should have been held:

Defendant … submitted an affirmation from her appellate counsel, who examined the shirts and asserted that, contrary to the testimony of the … prosecution witness, the holes in the shirts matched precisely the location of defendant’s alleged stab wound behind her left armpit. At oral argument of the motion, appellate counsel urged the court to examine the garments before ruling on the motion. The court declined to do so and denied defendant’s motion without a hearing.

We conclude that, if, as appellate counsel asserts, there are holes in the shirts defendant was wearing at the time of the altercation matching the wound behind her left armpit, in the absence of some strategic explanation, the failure of defendant’s trial attorney to examine that clothing, coupled with his failure to call a medical expert to discuss the wound and to show the wound to the jury, would have been so ” egregious and prejudicial’ ” as to deprive defendant of a fair trial … . Because defendant’s “submissions [thus] tend[ ] to substantiate all the essential facts’ necessary to support [her] claim of ineffective assistance of counsel” … , we conclude that the court should have held a hearing on the motion … . People v Smith, 2016 NY Slip Op 06565, 4th Dept 10-7-16

 

 

CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)/VACATE CONVICTION, MOTION TO (DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)/INEFFECTIVE ASSISTANCE (MOTION TO VACATE CONVICTION,DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)

STATUTORY NOTICE REQUIREMENTS FOR GRAND JURY PRESENTATION STRICTLY CONSTRUED AND ENFORCED, CONVICTION REVERSED FOR FAILURE TO NOTIFY DEFENDANT OF THE TIME AND PLACE OF THE PRESENTATION.

The Fourth Department, reversing defendant’s conviction, determined the People’s notice to defendant about the time and place the grand jury presentation would take place was deficient. The prosecutor told defense counsel the presentation would take place the next day:

Here, we conclude that, after receiving defendant’s March 1, 2013 request to appear before the grand jury, the People did not provide defendant with notice “of the time and place of the grand jury presentation” … , as is required by CPL 190.50 (5) (b), and we therefore reverse. We note that, on March 25, 2013, the People sent a letter to defense counsel stating that, “during the week of April 8, 2013, the Erie County Grand Jury will hear testimony concerning this matter. In accordance with CPL 190.50, should your client wish to testify, please clearly state so, in writing, no later than April 5, 2013, so that I can make the necessary arrangements to receive his testimony.” Although that letter would have been sufficient to satisfy the initial and separate requirement set forth in CPL 190.50 (5) (a) that the People notify defendant of his right to appear before the grand jury … , the letter did not satisfy the requirements of CPL 190.50 (5) (b) to inform defendant of the time and place of the grand jury presentation, which were triggered by defendant’s March 1, 2013 request to appear before the grand jury. It is of no moment that defendant did not respond to the People’s letter because nothing in CPL 190.50 requires a defendant to resubmit a valid notice pursuant to CPL 190.50 (5) (a) when he has already done so. We further note that the prosecutor’s oral statement to defense counsel on April 10, 2013 that “he will be presenting the matter to the Erie County Grand Jury the next day” was insufficient to satisfy the notice requirement inasmuch as it did not provide defendant with the requisite notice of the time and place of the grand jury presentation … . People v Moss, 2016 NY Slip Op 06587, 4th Dept 10-7-16

CRIMINAL LAW (STATUTORY NOTICE REQUIREMENTS FOR GRAND JURY PRESENTATION STRICTLY CONSTRUED AND ENFORCED, CONVICTION REVERSED FOR FAILURE TO NOTIFY DEFENDANT OF THE TIME AND PLACE OF THE PRESENTATION)/GRAND JURY (STATUTORY NOTICE REQUIREMENTS FOR GRAND JURY PRESENTATION STRICTLY CONSTRUED AND ENFORCED, CONVICTION REVERSED FOR FAILURE TO NOTIFY DEFENDANT OF THE TIME AND PLACE OF THE PRESENTATION)

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DEFENSE COUNSEL’S LETTER REQUESTING A PLEA-BARGAIN CONFERENCE WAS NOT A WAIVER OF DEFENDANT’S SPEEDY TRIAL RIGHTS.

The Fourth Department, reversing County Court, determined defendant’s motion to dismiss the marijuana-related indictments should have been granted on speedy trial grounds. The Fourth Department found that defense counsel’s letter asking for a discussion of a plea bargain could not be construed as a waiver of defendant’s speedy trial rights:

Defense counsel did not explicitly state or even suggest in his letter that he was waiving his client’s rights to a speedy trial under CPL 30.30; instead, counsel merely requested an opportunity to discuss a plea bargain before the District Attorney presented the case to the grand jury. In our view, that request does not constitute an explicit and “unambiguous” waiver of defendant’s speedy trial rights … , and we thus conclude that “the People failed to meet their burden of proving that the disputed . . . period was not chargeable to them” … . People v Leubner, 2016 NY Slip Op 06569, 4th Dept 10-7-16

CRIMINAL LAW (DEFENSE COUNSEL’S LETTER REQUESTING A PLEA-BARGAIN CONFERENCE WAS NOT A WAIVER OF DEFENDANT’S SPEEDY TRIAL RIGHTS)/SPEEDY TRIAL (DEFENSE COUNSEL’S LETTER REQUESTING A PLEA-BARGAIN CONFERENCE WAS NOT A WAIVER OF DEFENDANT’S SPEEDY TRIAL RIGHTS)

SIX YEAR DELAY IN BRINGING DEFENDANT TO TRIAL WAS NOT MOTIVATED BY THE PEOPLE’S ATTEMPT TO GAIN A TACTICAL ADVANTAGE; DISMISSAL ON SPEEDY TRIAL GROUNDS PROPERLY DENIED.

The First Department, over an extensive two-justice dissent, determined the trial court properly denied defendant’s motion to dismiss on speedy-trial grounds stemming from the six-year delay between the shooting and trial. The defendant and another man, Armstead, were charged in the shooting death of a bystander while intending to shoot another. The People wanted to convict Armstead before trying defendant in the hope Armstead would testify against defendant. Three trials of Armstead ended in at least a partial mistrial. Before the fourth trial, Armstead pled guilty to manslaughter. Over the course of the six years, delays were incurred, inter alia, because counsel were unavailable and because of damage caused by Hurricane Sandy:

The chronology of this case highlights some of the problems faced by the courts of this state in large metropolitan areas. These include overburdened courts, overcrowded jails, and overworked prosecutors and legal services defense counsel. Nevertheless, these issues must be considered in the context of this particular case as they affect, if at all, this particular defendant.

The dissent tends to minimize the defense side of the equation in determining the reason for the delay, choosing to focus on the prosecution’s attempt to get Armstead to testify against defendant as the main reason for the delay in bringing him to trial. While the attempt to get Armstead to testify against defendant certainly played an important role in the delay, it is not the only reason and ignores the many other causes for the delay.

The … chronology shows that much of the delay was occasioned by requests for adjournments by defendant and/or his codefendant for motion practice, change of counsel, discovery proceedings, unavailability of co-defendant’s counsel and the like. In the analogous CPL 30.30 situation, adjournments granted with a codefendant’s consent are not chargeable to the People … , and they should not be chargeable here. Despite the dissent’s conclusion to the contrary, the record supports the conclusion that these adjournments were not motivated by a goal on the part of the People to gain an unfair tactical advantage over defendant … . People v Wiggins, 2016 NY Slip Op 06538, 1st Dept 10-6-16

 

CRIMINAL LAW (SIX YEAR DELAY IN BRINGING DEFENDANT TO TRIAL WAS NOT MOTIVATED BY THE PEOPLE’S ATTEMPT TO GAIN A TACTICAL ADVANTAGE; DISMISSAL ON SPEEDY TRIAL GROUNDS PROPERLY DENIED)/SPEEDY TRIAL (SIX YEAR DELAY IN BRINGING DEFENDANT TO TRIAL WAS NOT MOTIVATED BY THE PEOPLE’S ATTEMPT TO GAIN A TACTICAL ADVANTAGE; DISMISSAL ON SPEEDY TRIAL GROUNDS PROPERLY DENIED)

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15-YEAR PERIOD DURING WHICH DEFENDANT DID NOT REOFFEND IS A GROUND FOR A DOWNWARD DEPARTURE IN SETTING THE SORA RISK LEVEL.

The Second Department determined defendant was entitled to a downward departure based upon a 15-year period during which defendant did not reoffend. Defendant’s SORA risk level was reduced from three to two:

In light of the purpose of SORA, which is to assess the risk that the offender poses while at liberty, lengthy periods during which the defendant has been at liberty after the offense are significant in determining the risk of reoffense and the danger posed in the event of reoffense …  . Since these periods are not taken into account in the risk assessment instrument (hereinafter the RAI), they are a permissible ground for departure … . Here, the defendant committed a sex offense in New Jersey in 1982. In the time between that crime and the SORA hearing, which was held in 2012, after the defendant returned to New York, he was incarcerated in New Jersey for approximately 15 years, and he was also at liberty for approximately the same amount of time without reoffending. In light of the lengthy amount of time without reoffense, we conclude that the RAI overstated the defendant’s risk of reoffense. People v Sotomayer, 2016 NY Slip Op 06482, 2nd Dept 10-5-16

CRIMINAL LAW (15-YEAR PERIOD DURING WHICH DEFENDANT DID NOT REOFFEND IS A GROUND FOR A DOWNWARD DEPARTURE IN SETTING THE SORA RISK LEVEL)/SEX OFFENDER REGISTRATION ACT (SORA) (15-YEAR PERIOD DURING WHICH DEFENDANT DID NOT REOFFEND IS A GROUND FOR A DOWNWARD DEPARTURE IN SETTING THE SORA RISK LEVEL)

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