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INQUIRY INTO WAIVER OF INSANITY DEFENSE DEFICIENT.

The Third Department determined that the court’s inquiry into whether the defendant understood the affirmative defense (insanity) he waived by pleading guilty was insufficient:

Defense counsel advised County Court during the plea colloquy that there were significant issues regarding defendant’s mental state when he attacked the trooper and that, as a result, a psychiatrist had assessed whether defendant “was unable to form the intent necessary” to commit the charged offenses … . Defense counsel then represented that defendant had agreed to accept the proffered plea bargain because the psychiatrist opined that an insanity defense could properly be raised at trial, but that he would be unable to testify to a reasonable degree of medical certainty that defendant “did not understand the nature and consequences of his actions or that his conduct was wrong” (see Penal Law § 40.15). County Court’s response to those statements was limited to confirming that defendant had heard the representations of defense counsel, discussed those issues with him and believed that the plea agreement was “a fair resolution.” The Court of Appeals has made clear, however, that “question[s] to [a] defendant verifying that he [or she] discussed that defense with his [or her] attorney and opted not to assert it” are insufficient under these circumstances … . People v Green, 2016 NY Slip Op 05515, 3rd Dept 7-14-16

CRIMINAL LAW (INQUIRY INTO WAIVER OF INSANITY DEFENSE DEFICIENT)/WAIVER (CRIMINAL LAW, INQUIRY INTO WAIVER OF INSANITY DEFENSE DEFICIENT)/AFFIRMATIVE DEFENSE (CRIMINAL LAW, INQUIRY INTO WAIVER OF INSANITY DEFENSE DEFICIENT)/INSANITY DEFENSE (INQUIRY INTO WAIVER OF INSANITY DEFENSE DEFICIENT)

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POLICE OFFICER’S TESTIMONY INCREDIBLE AND UNSUPPORTED BY ANY EVIDENCE, CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE.

The Second Department reversed defendant’s conviction as against the weight of the evidence, essentially finding the police officer’s testimony incredible:

Here, an acquittal would not have been unreasonable, particularly in light of objective facts—including the arresting officer’s failure to record the arrest in his memo book, his failure to call in the arrest, his failure to voucher the bandanas or masks, and the loss of the case folder containing the original of the defendant’s written statement and signed Miranda waiver—all of which cast doubt on the arresting officer’s credibility … . Moreover, the defendant testified at trial to a completely different version of events, including that he and his companion were not wearing masks or bandanas and he did not possess a gun or any marihuana. The defendant’s credibility was supported by the testimony of three character witnesses regarding his propensity for truthfulness, and no evidence was elicited to undermine the defendant’s credibility. Notably, the defendant had no prior history of arrests and had been gainfully employed by the same employer for seven years. Further, the defendant’s companion, who also had no history of prior arrests and had been gainfully employed for six years, testified to the same version of events as the defendant. Upon the exercise of our factual review power (see CPL 470.15), we find that the rational inferences which can be drawn from the evidence presented at trial do not support the conviction beyond a reasonable doubt … . People v Oneill, 2016 NY Slip Op 05510, 2nd Dept 7-13-16

CRIMINAL LAW (POLICE OFFICER’S TESTIMONY INCREDIBLE AND UNSUPPORTED BY ANY EVIDENCE, CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE)/EVIDENCE (CRIMINAL LAW, POLICE OFFICER’S TESTIMONY INCREDIBLE AND UNSUPPORTED BY ANY EVIDENCE, CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE)/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, POLICE OFFICER’S TESTIMONY INCREDIBLE AND UNSUPPORTED BY ANY EVIDENCE, CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE

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SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED.

The Second Department determined the show up identification 30 minutes after the crime was not unduly suggestive and should not have been suppressed:

Here, the People met their initial burden of establishing that the showup identification procedure, which was conducted within approximately 30 minutes of the crime and within three or four blocks of the crime scene, was reasonable under the circumstances and lacked undue suggestiveness … . The defendants, in turn, failed to satisfy their ultimate burden of proving that the showup identification procedure was unduly suggestive and subject to suppression. Under the circumstances of this case, the mere presence of police, patrol cars, headlights, or other lighting at the scene of the identifications did not render the procedure unduly suggestive … . People v Huerta, 2016 NY Slip Op 05508, 2nd Dept 7-13-16

CRIMINAL LAW (SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED)/IDENTIFICATION (CRIMINAL LAW, SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED)/SHOWUP (CRIMINAL LAW, SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED)

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DEFENDANT NOT INFORMED OF DEPORTATION CONSEQUENCES OF HIS PLEA, MOTION TO VACATE CONVICTION FOR INEFFECTIVE ASSISTANCE SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction because he was not informed his guilty plea would result in deportation should have been granted on “ineffective assistance” grounds. Defendant did not perfect an appeal. However the motion to vacate was a valid vehicle because it depended in part on non-record matters:

Since the defendant’s claim that he was deprived of the effective assistance of counsel involves a mixed claim that depends, in part, upon matter that would not appear on the record had there been a direct appeal from the judgment, his claims were properly presented in a motion pursuant to CPL 440.10 … .

Under the circumstances of this case, we find that the defendant established that he was deprived of the effective assistance of counsel, in that there was no “strategic reason” … for his attorney’s failure to advocate for a sentence that would result in the same overall aggregate prison time for the defendant, but which would have resulted in no mandatory immigration consequences … . People v Moore, 2016 NY Slip Op 05509, 2nd Dept 7-13-16

 

CRIMINAL LAW (DEFENDANT NOT INFORMED OF DEPORTATION CONSEQUENCES OF HIS PLEA, MOTION TO VACATE CONVICTION FOR INEFFECTIVE ASSISTANCE SHOULD HAVE BEEN GRANTED)/INEFFECTIVE ASSISTANCE (DEFENDANT NOT INFORMED OF DEPORTATION CONSEQUENCES OF HIS PLEA, MOTION TO VACATE CONVICTION FOR INEFFECTIVE ASSISTANCE SHOULD HAVE BEEN GRANTED)/ATTORNEYS (CRIMINAL LAW, DEFENDANT NOT INFORMED OF DEPORTATION CONSEQUENCES OF HIS PLEA, MOTION TO VACATE CONVICTION FOR INEFFECTIVE ASSISTANCE SHOULD HAVE BEEN GRANTED

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RISK LEVEL REDUCED FROM THREE TO TWO; DEFENDANT AND VICTIM WERE CLOSE IN AGE AND THE LACK OF CONSENT WAS SOLELY BY VIRTUE OF THE VICTIM’S AGE.

The Fourth Department reduced defendant sex offender’s risk level from three to two, finding that the assessment of 25 points for sexual contact with the victim overassessed the defendant’s risk to public safety. Defendant and the victim were close in age and the victim’s lack of consent was solely due to her age:

In light of the totality of the circumstances, particularly the relatively slight age difference between defendant and the victim, as well as the undisputed evidence that the victim’s lack of consent was premised only on her inability to consent by virtue of her age, we conclude in the exercise of our own discretion that the assessment of 25 points under the second risk factor, for sexual contact with the victim, results in an overassessment of defendant’s risk to public safety … . People v George, 2016 NY Slip Op 05482, 4th Dept 7-8-16

CRIMINAL LAW (RISK LEVEL REDUCED FROM THREE TO TWO; DEFENDANT AND VICTIM WERE CLOSE IN AGE AND THE LACK OF CONSENT WAS SOLELY BY VIRTUE OF THE VICTIM’S AGE)/SEX OFFENDER REGISTRATION ACT (SORA) (RISK LEVEL REDUCED FROM THREE TO TWO; DEFENDANT AND VICTIM WERE CLOSE IN AGE AND THE LACK OF CONSENT WAS SOLELY BY VIRTUE OF THE VICTIM’S AGE)/SORA (RISK LEVEL REDUCED FROM THREE TO TWO; DEFENDANT AND VICTIM WERE CLOSE IN AGE AND THE LACK OF CONSENT WAS SOLELY BY VIRTUE OF THE VICTIM’S AGE)

DEFENDANT, DESPITE BEING IN CUSTODY AT THE TIME, VALIDLY CONSENTED TO THE SEARCH OF THE PREMISES AND A DUFFEL BAG FOUND IN A CLOSET.

The Fourth Department, over an extensive, two-justice dissent, determined defendant, when he was in custody, consented to the search of the premises and a duffel bag in a closet:

Testimony at the suppression hearing established that, although defendant was in custody at the time he gave consent, he cooperated with the police and assisted them in gaining entry by indicating which of his keys opened the front door … . Once inside the home, the police observed marihuana in plain view and immediately read defendant his Miranda rights. After defendant waived those rights, he voluntarily consented, both verbally and in writing, to a search of the premises.

We reject defendant’s further contention that any voluntary consent he may have given did not encompass a search of a duffel bag inside of his closet. “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of objective reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” … . Where an officer informs a suspect of the specific items the officer is searching for, ” [t]he scope of a search is generally defined by its expressed object’ ” … . Here, defendant responded affirmatively when the officer asked him whether he “could have permission to search both the room and the house for drugs or any other weapons or illegal contraband in the house.” Additionally, defendant signed a written consent that included the “premises” and his “personal property.” People v Freeman, 2016 NY Slip Op 05472, 4th Dept 7-8-16

 

CRIMINAL LAW (DEFENDANT, DESPITE BEING IN CUSTODY AT THE TIME, VALIDLY CONSENTED TO THE SEARCH OF THE PREMISES AND A DUFFEL BAG FOUND IN A CLOSET)/SEARCH (DEFENDANT, DESPITE BEING IN CUSTODY AT THE TIME, VALIDLY CONSENTED TO THE SEARCH OF THE PREMISES AND A DUFFEL BAG FOUND IN A CLOSET)/CONSENT SEARCH (DEFENDANT, DESPITE BEING IN CUSTODY AT THE TIME, VALIDLY CONSENTED TO THE SEARCH OF THE PREMISES AND A DUFFEL BAG FOUND IN A CLOSET)/SUPPRESSION (DEFENDANT, DESPITE BEING IN CUSTODY AT THE TIME, VALIDLY CONSENTED TO THE SEARCH OF THE PREMISES AND A DUFFEL BAG FOUND IN A CLOSET)

GEORGIA BURGLARY STATUTE DOES NOT INCLUDE A KNOWLEDGE ELEMENT WHICH IS INCLUDED IN THE NEW YORK BURGLARY STATUTE; THE GEORGIA STATUTE CANNOT, THEREFORE, SERVE AS A PREDICATE FELONY.

The Fourth Department, over an extensive dissent, reversing County Court, determined defendant’s Georgia burglary conviction could not serve as a predicate felony in New York. The corresponding New York burglary statute required that a defendant knowingly enter or remain in a building with the intent to commit a crime. The knowledge element was not part of the Georgia statute:

Defendant pleaded guilty to burglary in 1999, at which time the Georgia burglary statute provided that “[a] person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another” (Ga Code Ann former § 16-7-1 [a]). The equivalent New York burglary statute provides that “[a] person is guilty of burglary . . . when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when . . . [t]he building is a dwelling” (Penal Law § 140.25 [2] [emphasis added]). Thus, on its face, the Georgia statute is lacking an essential element—knowledge that the entry or decision to remain is unlawful. Because New York law requires proof of an element that Georgia law does not, defendant’s Georgia conviction cannot serve as a predicate … . People v Helms, 2016 NY Slip Op 05463, 4th Dept 7-8-16

CRIMINAL LAW (GEORGIA BURGLARY STATUTE DOES NOT INCLUDE A KNOWLEDGE ELEMENT WHICH IS INCLUDED IN THE NEW YORK BURGLARY STATUTE; THE GEORGIA STATUTE CANNOT, THEREFORE, SERVE AS A PREDICATE FELONY)/SENTENCING (PREDICATE FELONY, GEORGIA BURGLARY STATUTE DOES NOT INCLUDE A KNOWLEDGE ELEMENT WHICH IS INCLUDED IN THE NEW YORK BURGLARY STATUTE; THE GEORGIA STATUTE CANNOT, THEREFORE, SERVE AS A PREDICATE FELONY)/SECOND FELONY OFFENDER (GEORGIA BURGLARY STATUTE DOES NOT INCLUDE A KNOWLEDGE ELEMENT WHICH IS INCLUDED IN THE NEW YORK BURGLARY STATUTE; THE GEORGIA STATUTE CANNOT, THEREFORE, SERVE AS A PREDICATE FELONY)

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NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF ARRESTING OFFICER REVERSED.

The Third Department reversed, in the interest of justice, defendant’s conviction for assault of a police officer (Smith) because the officer did not have reasonable suspicion defendant had committed a crime at the time defendant was detained. Defendant was involved in an argument with someone when the police approached and did not answer the officer’s questions:

Viewing the evidence in the light most favorable to the People … , we find no valid line of reasoning and permissible inferences from which a rational jury could have concluded that Smith possessed the requisite reasonable suspicion of criminality necessary to forcibly detain defendant. As defendant’s subsequent conduct in assaulting Smith “cannot validate an encounter that was not justified at its inception” … , the evidence was legally insufficient to establish that Smith was injured while undertaking a lawful duty, and defendant’s conviction must be reversed … . People v Tucker, 2016 NY Slip Op 05400, 3rd Dept 7-7-16

CRIMINAL LAW (NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/EVIDENCE (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/REASONABLE SUSPICION (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/STREET STOPS  (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/SUPRESSION (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSUALT OF POLICE OFFICER REVERSED)/POLICE OFFICERS (NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSUALT OF A POLICE OFFICER REVERSED)/RESISTING ARREST (NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/EVIDENCE (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)

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EVIDENCE COLLECTED AFTER REQUEST FOR COUNSEL SHOULD HAVE BEEN SUPPRESSED, NEW TRIAL ORDERED.

The Third Department determined statements made by and evidence collected from defendant after his request for counsel should have been suppressed in this vehicular homicide case. A new trial was ordered;

The People further conceded at oral argument that defendant invoked his constitutional and limited statutory right to counsel in response to those warnings and that, under the circumstances of this case, valid grounds existed to suppress his post-invocation statements and evidence related to the DRE [drug recognition evaluation], second breathalyzer and blood tests … . The erroneous admission of this evidence is reviewed under the harmless error doctrine, and such an error is considered harmless “when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict” … . The admissible evidence at trial established that defendant took twice his prescribed dosage of Clonazepam the morning of the accident and that he failed field sobriety tests administered at the scene. Nevertheless, inasmuch as defendant’s inadmissible statements, the recording of the DRE test and the evidence of the inadmissible test results themselves may well have contributed to the conviction, it cannot be said that the erroneous admission of that evidence was harmless … . People v Green, 2016 NY Slip Op 05399, 3rd Dept 7-7-16

 

GENERAL CONSTRUCTION LAW EXTENDS THE SIX-MONTH SPEEDY TRIAL DEADLINE IF THE LAST DAY FALLS ON A SATURDAY, SUNDAY OR A HOLIDAY.

The Third Department, in a full-fledged opinion by Justice Garry, clarified the application of General Construction Law 25-a to the six-month speedy trial time limit for felonies:

At issue here is the deadline by which the People must declare readiness when a defendant is charged with a felony. It has also been held that for General Construction Law § 25-a to apply in any factual circumstance, “there must be an initially ascertainable certain day from which reckoning may be made” … . CPL 30.30 (1) (a) specifies such an ascertainable day — that is, the commencement of a criminal action — from which the six-month period within which the People are required to declare readiness for trial is to be computed. Thus, we find that when the last day of the six-month period specified by CPL 30.30 (1) (a) falls upon a Saturday, Sunday or legal holiday, the expiration of the period in which the People must declare readiness is extended to the next succeeding business day pursuant to General Construction Law § 25-a. Here, the People’s second declaration of readiness was made on the next succeeding business day following the legal holiday upon which the six-month period expired; it was therefore timely and effective, and dismissal of the indictment was not required. People v Mandela, 2016 NY Slip Op 05401, 3rd Dept 7-7-16

CRIMINAL LAW (GENERAL CONSTRUCTION LAW EXTENDS THE SIX-MONTH SPEEDY TRIAL DEADLINE IF THE LAST DAY FALLS ON A SATURDAY, SUNDAY OR A HOLIDAY)/SPEEDY TRIAL (GENERAL CONSTRUCTION LAW EXTENDS THE SIX-MONTH SPEEDY TRIAL DEADLINE IF THE LAST DAY FALLS ON A SATURDAY, SUNDAY OR A HOLIDAY)/GENERAL CONSTRUCTION LAW (SPEEDY TRIAL DEADLINE, GENERAL CONSTRUCTION LAW EXTENDS THE SIX-MONTH SPEEDY TRIAL DEADLINE IF THE LAST DAY FALLS ON A SATURDAY, SUNDAY OR A HOLIDAY)

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