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COUNTY COURT PROPERLY RELIED ON THE RESULTS OF A HEARING BEFORE A JUDICIAL HEARING OFFICER TO DETERMINE AMOUNT OF RESTITUTION.

The Court of Appeals, in a full-fledged opinion by Judge Stein, held County Court properly relied upon the results of a hearing conducted by a judicial hearing officer (JHO) to determine the amount of restitution to be paid by the defendant. The defendant was given the opportunity to submit additional evidence to County Court:

While Penal Law § 60.27 (2) “emphatically advises that it is 'the court' . . . which is to conduct any hearing thought necessary for this purpose” … , the court is “not . . . restricted to reliance upon only competent evidence” (Kim, 91 NY2d at 411). Rather, CPL 400.30 “embodies a liberal evidentiary standard”… and provides that “[a]ny relevant evidence, not legally privileged, may be received regardless of its admissibility under the exclusionary rules of evidence” (CPL 400.30 [4] [emphasis added]). That is, even where “the record does not contain sufficient evidence to support such finding [of the actual amount of loss]” or the defendant has requested a hearing (Penal Law § 60.27 [2]), nothing in the statutory text requires a formal evidentiary hearing. Rather, as noted, this Court has characterized the hearing as “a reasonable opportunity [for the defendant] to contest the People's evidence or supply evidence on his [or her] own behalf”… . People v Connolly, 2016 NY Slip Op 03651, CtApp 5-10-16

CRIMINAL LAW (COUNTY COURT PROPERLY RELIED ON THE RESULTS OF A HEARING BEFORE A JUDICIAL HEARING OFFICER TO DETERMINE AMOUNT OF RESTITUTION)/RESTITUTION (CRIMINAL LAW, COUNTY COURT PROPERLY RELIED ON THE RESULTS OF A HEARING BEFORE A JUDICIAL HEARING OFFICER TO DETERMINE AMOUNT OF RESTITUTION)

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EVIDENCE SUPPORTING UPWARD DEPARTURE WAS SPECULATIVE AND DID NOT RISE TO THE LEVEL CLEAR AND CONVINCING.

The Fourth Department, over a two-justice dissent, determined the evidence was not sufficient to justify and upward departure from a Level Two to a Level Three sex offender. Defendant restricted the freedom of a child who subsequently was either released or escaped when her friend, who had escaped, called for her. Defendant was convicted of attempted kidnapping. County Court's upward departure was, in the opinion of the majority, based upon speculation about defendant's motives and intentions, which did not rise to the level of clear and convincing evidence of aggravating circumstances not taken into account by the risk assessment:

We agree with defendant that the court erred in granting the People's request for an upward departure from a presumptive level two risk to a level three risk based upon its assumption that the victim would have suffered greater harm had the other child not intervened and allowed the victim to escape. While it may be reasonable to assume that defendant had sinister intentions when he lured two young children into his home, such an assumption does not constitute the requisite “clear and convincing evidence that there exist aggravating circumstances of a kind or to a degree not adequately taken into account by the risk assessment guidelines”… . People v Baldwin, 2016 NY Slip Op 03609, 4th Dept 5-6-16

CRIMINAL LAW (SORA RISK ASSESSMENT, EVIDENCE SUPPORTING UPWARD DEPARTURE WAS SPECULATIVE AND DID NOT RISE TO THE LEVEL CLEAR AND CONVINCING)/SEX OFFENDER REGISTRATION ACT (EVIDENCE SUPPORTING UPWARD DEPARTURE WAS SPECULATIVE AND DID NOT RISE TO THE LEVEL CLEAR AND CONVINCING)/SORA (EVIDENCE SUPPORTING UPWARD DEPARTURE WAS SPECULATIVE AND DID NOT RISE TO THE LEVEL CLEAR AND CONVINCING)/UPWARD DEPARTURE (SORA, EVIDENCE SUPPORTING UPWARD DEPARTURE WAS SPECULATIVE AND DID NOT RISE TO THE LEVEL CLEAR AND CONVINCING)/EVIDENCE (SORA RISK ASSESSMENT, EVIDENCE SUPPORTING UPWARD DEPARTURE WAS SPECULATIVE AND DID NOT RISE TO THE LEVEL CLEAR AND CONVINCING)

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COURT FAILED TO MAKE A MINIMAL INQUIRY INTO DEFENDANT’S COMPLAINT ABOUT A CONFLICT OF INTEREST WITH DEFENSE COUNSEL, CONVICTION REVERSED.

The Fourth Department reversed defendant's conviction because the trial judge did not make an adequate inquiry into defendant's complaint about a conflict of interest with defense counsel:

… [T]he court violated [defendant's] right to counsel when it failed to conduct a sufficient inquiry into his complaint regarding a conflict of interest with defense counsel. Prior to commencement of a scheduled suppression hearing, defense counsel informed the court that, based on recent discussions, defendant wanted to request new counsel, and that there had been a breakdown in communication between defense counsel and defendant regarding the issues that they needed to address. Defendant subsequently confirmed that he was requesting new assigned counsel and informed the court that he had filed a grievance against defense counsel resulting in a conflict of interest. '[A]lthough there is no rule requiring that a defendant who has filed a grievance against his attorney be assigned new counsel, [a] court [is] required to make an inquiry to determine whether defense counsel [can] continue to represent defendant in light of the grievance” … . Moreover, “where potential conflict is acknowledged by counsel's admission of a breakdown in trust and communication, the trial court is obligated to make a minimal inquiry” … . People v Tucker, 2016 NY Slip Op 03637, 4th Dept 5-6-16

CRIMINAL LAW (COURT FAILED TO MAKE A MINIMAL INQUIRY INTO DEFENDANT'S COMPLAINT ABOUT A CONFLICT OF INTEREST WITH DEFENSE COUNSEL, CONVICTION REVERSED)/ATTORNEYS (CRIMINAL LAW, COURT FAILED TO MAKE A MINIMAL INQUIRY INTO DEFENDANT'S COMPLAINT ABOUT A CONFLICT OF INTEREST WITH DEFENSE COUNSEL, CONVICTION REVERSED)

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT SUFFICIENTLY ALLEGED HIS COUNSEL PROVIDED WRONG INFORMATION ABOUT THE POSSIBILITY OF DEPORTATION.

The Fourth Department determined defendant's motion to vacate his conviction by guilty plea should not have been denied without a hearing. Defendant alleged his attorney wrongly told him there was no possibility defendant would be deported based upon the conviction:

In support of his motion, defendant, who is not a United States citizen, submitted an affidavit in which he asserted that his attorney advised him prior to the plea that “there is no way in the world” that he would be deported as a result of his plea because he was being sentenced to less than five years in prison. Defendant further asserted that he would not have pleaded guilty had he been properly advised of the deportation consequences of the plea. According to defendant, he was deported to Jamaica after serving his term of imprisonment.

As the Court of Appeals has held, an affirmative misstatement of the law regarding the deportation consequences of a plea may provide a basis for vacatur of the plea if it can be shown that the defendant was thereby prejudiced, i.e., there is a reasonable probability that the defendant would not otherwise have pleaded guilty … . Here, we conclude that defendant's sworn assertions, if true, entitle him to relief and, because it cannot be said that his assertions are incredible as a matter of law, a hearing is required. We reject the People's contention that the court properly denied the motion because defendant failed to submit an affidavit from his former attorney corroborating his claim … . Where, as here, defendant's “application is adverse and hostile to his trial attorney,” it “is wasteful and unnecessary” to require the defendant to secure an affidavit from counsel, or to explain his failure to do so … . Moreover, contrary to the People's further contention, defendant's assertion that he would not have pleaded guilty if he had been properly advised regarding deportation is sufficient to raise an issue of fact whether he was prejudiced by counsel's alleged error … . People v Bennett, 2016 NY Slip Op 03608, 4th Dept 5-6-16

CRIMINAL LAW (MOTION TO VACATE CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT SUFFICIENTLY ALLEGED HIS COUNSEL PROVIDED WRONG INFORMATION ABOUT THE POSSIBILITY OF DEPORTATION)/VACATE CONVICTION, MOTION TO (MOTION TO VACATE CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT SUFFICIENTLY ALLEGED HIS COUNSEL PROVIDED WRONG INFORMATION ABOUT THE POSSIBILITY OF DEPORTATION)

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AMOUNT OF HEROIN ALLEGED TO HAVE BEEN SOLD NOT PROVEN, STATUTORY SALE AND RELATED CONSPIRACY COUNTS DISMISSED.

The Third Department reversed defendant's conviction of the statutory sale of more than one-half ounce of heroin and the related conspiracy conviction (the remaining 15 counts were not reversed). The court determined the evidence of the amount of heroin sold was equivocal:

A statutory sale may be proven by evidence of an offer or agreement to sell drugs, but “the weight of the material must be independently shown” … . Here, no narcotics were recovered by the police, and the proof of the weight of heroin that defendant agreed to procure for [codefendant] Cochran was equivocal; while the amount of 16 grams was discussed, Cochran also stated that he might purchase “something like that” or, because he had limited funds and other expenses, might “get something lower.” As the People correctly argue, the full amount of transferred narcotics need not always be recovered to satisfy the weight requirement when a sale is based upon an offer or an agreement; nevertheless, there must be some form of independent evidence from which the total weight can be extrapolated … . As there was none here, defendant's conviction for criminal sale of a controlled substance in the second degree is reversed and the corresponding count of the indictment dismissed … . People v Wright, 2016 NY Slip Op 03550, 3rd Dept 5-5-15

CRIMINAL LAW (AMOUNT OF HEROIN ALLEGED TO HAVE BEEN SOLD NOT PROVEN, STATUTORY SALE AND RELATED CONSPIRACY COUNTS DISMISSED)/STATUTORY SALE (CRIMINAL LAW, AMOUNT OF HEROIN ALLEGED TO HAVE BEEN SOLD NOT PROVEN, STATUTORY SALE AND RELATED CONSPIRACY COUNTS DISMISSED)/WEIGHT OF DRUGS (AMOUNT OF HEROIN ALLEGED TO HAVE BEEN SOLD NOT PROVEN, STATUTORY SALE AND RELATED CONSPIRACY COUNTS DISMISSED)

FAILURE TO READ JURY NOTE VERBATIM WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL.

The Third Department determined the trial judge made a mode of proceedings error by failing to read to the parties, verbatim, a note from the jury:

… [W]e conclude that County Court committed a mode of proceedings error for which no objection was necessary … . The court had an affirmative obligation to read exhibit No. 5 verbatim so that the parties had the opportunity to accurately analyze the jury's question and frame intelligent suggestions for the court's response … . The record is devoid of any information as to whether defendant knew about the portion of exhibit No. 5 stating “# 8G 4NG.” The ambiguity of the notation is also of concern to this Court.

Although the parties requested that the court inquire as to whether the jury had reached a verdict and whether it was “complete,” we cannot speculate as to what defendant knew about exhibit No. 5 … . Furthermore, “we cannot assume that the omission was remedied at an off-the-record conference” … . Accordingly, as County Court committed a mode of proceedings error as to exhibit No. 5, we must remit for a new trial on counts 1 through 9 of the consolidated indictment. People v Victor, 2016 NY Slip Op 03551, 3rd Dept 5-5-16

CRIMINAL LAW (FAILURE TO READ JURY NOTE VERBATIM WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL)/JURIES (CRIMINAL LAW, FAILURE TO READ JURY NOTE VERBATIM WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL)

POLICE DID NOT NOTICE SIGNS OF INTOXICATION UNTIL AFTER DEFENDANT WAS STOPPED AND SEIZED, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.

The First Department determined defendant’s motion to suppress evidence of his intoxication should have been granted. The police did not notice signs of intoxication until after defendant was stopped and seized:

The officers’ testimony indicated that they did not perceive signs that defendant had committed the crime of operating a motor vehicle while under the influence of alcohol until after defendant was seized while walking away from the officers and then turned toward them. Thus, the officers’ observations did not provide reasonable suspicion to stop defendant, in the absence of “a particularized and objective basis for suspecting the particular person stopped of criminal activity” … . People v Coronado, 2016 NY Slip Op 03601, 1st Dept 5-5-16

 

CRIMINAL LAW (POLICE DID NOT NOTICE SIGNS OF INTOXICATION UNTIL AFTER DEFENDANT WAS STOPPED AND SEIZED, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)/SUPPRESSION (POLICE DID NOT NOTICE SIGNS OF INTOXICATION UNTIL AFTER DEFENDANT WAS STOPPED AND SEIZED, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)/STREET STOPS (POLICE DID NOT NOTICE SIGNS OF INTOXICATION UNTIL AFTER DEFENDANT WAS STOPPED AND SEIZED, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)

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APPEALS AS OF RIGHT MAY NOT BE DISMISSED BASED UPON THE DEPORTATION OF APPELLANT; PERMISSIVE APPEALS, HOWEVER, ARE SUBJECT TO DISCRETIONARY DISMISSAL ON THAT GROUND.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a partial dissent, determined appeals as of right, irrespective of the issues raised, should not be dismissed because the appellant has been deported. Permissive appeals, such as an appeal of the denial of a motion to vacate a conviction, are, however, subject to discretionary dismissal because the appellant has been deported:

… [W]e conclude that this Court’s holding in Ventura [17 NY3d 675] prohibits an intermediate appellate court from exercising its discretion to dismiss a pending direct appeal on the ground that the defendant has been involuntarily deported, regardless of the appellate contentions raised by the defendant. …

We reach a different conclusion with respect to [a] pending permissive appeal. Our holding in Ventura was based upon a criminal defendant’s fundamental right to a direct appeal granted by CPL 450.10. That statute has no application, however, in the context of permissive appeals. Rather, CPL 450.15 governs an appeal from an order denying a CPL 440.10 motion to vacate a judgment, and provides that a certificate granting leave to appeal must be obtained pursuant to CPL 460.15 (see CPL 450.15 [1]). In Ventura, this Court spoke of a criminal defendant’s “absolute right,” “statutory right,” “fundamental right,” and “basic entitlement” to appellate consideration of a direct appeal … . A defendant has no such fundamental right or basic entitlement to appeal where the defendant must seek permission to appeal to the intermediate appellate court pursuant to CPL 450.15. …

Where an intermediate appellate court has permissive jurisdiction over a pending appeal, the intermediate appellate court retains its discretion to dismiss the pending permissive appeal due to the defendant’s involuntary deportation. People v Harrison, 2016 NY Slip Op 03547, CtApp 5-5-16

CRIMINAL LAW (APPEALS AS OF RIGHT MAY NOT BE DISMISSED BASED UPON THE DEPORTATION OF APPELLANT; PERMISSIVE APPEALS, HOWEVER, ARE SUBJECT TO DISCRETIONARY DISMISSAL ON THAT GROUND)/APPEALS (CRIMINAL, APPEALS AS OF RIGHT MAY NOT BE DISMISSED BASED UPON THE DEPORTATION OF APPELLANT; PERMISSIVE APPEALS, HOWEVER, ARE SUBJECT TO DISCRETIONARY DISMISSAL ON THAT GROUND)/IMMIGRATION (CRIMINAL LAW, APPEALS AS OF RIGHT MAY NOT BE DISMISSED BASED UPON THE DEPORTATION OF APPELLANT; PERMISSIVE APPEALS, HOWEVER, ARE SUBJECT TO DISCRETIONARY DISMISSAL ON THAT GROUND)/DEPORTATION (CRIMINAL LAW, APPEALS AS OF RIGHT MAY NOT BE DISMISSED BASED UPON THE DEPORTATION OF APPELLANT; PERMISSIVE APPEALS, HOWEVER, ARE SUBJECT TO DISCRETIONARY DISMISSAL ON THAT GROUND)

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EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED.

The Second Department determined the trial evidence supported defendant's request for a jury instruction of the justification defense. A new trial was ordered:

Here, based upon the testimony of the People's witnesses, there was a reasonable view of the evidence that would permit the jury to conclude that the defendant reasonably believed that the use of deadly force was necessary to prevent Jimmy [the victim] from using deadly force against the defendant or his friend, Ranjit … . There was testimony that, immediately before he was stabbed, Jimmy was belligerent and wielded a knife inside the defendant's home, and that he had threatened Ranjit's life. Significantly, Ranjit and another witness described Jimmy as the initial aggressor … . Moreover, this incident occurred in the defendant's dwelling and, thus, to the extent that he believed that Jimmy was about to use deadly physical force against him, he was under no duty to retreat … . People v Singh, 2016 NY Slip Op 03537, 2nd Dept 5-4-16

CRIMINAL LAW (EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)/EVIDENCE (CRIMINAL LAW, EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)/JUSTIFICATION DEFENSE (CRIMINAL LAW, EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)

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PROVIDING AN UNREDACTED STATEMENT TO THE JURY BY MISTAKE DEPRIVED DEFENDANT OF A FAIR TRIAL AND REQUIRED REVERSAL.

The Second Department determined providing the unredacted statement to the jury by mistake deprived defendant of a fair trial, without regard to whether the mistake contributed to defendant's conviction:

CPL 310.20(1) provides, “[u]pon retiring to deliberate, the jurors may take with them: . . . Any exhibits received in evidence at the trial which the court, after according the parties an opportunity to be heard upon the matter, in its discretion permits them to take.” Here, the defendant's written statement was admitted into evidence at trial, but the parties agreed to redact the statement so as to omit a portion of it indicating, in part, that the defendant's girlfriend “attempted to say I [the defendant] raped her [the defendant's girlfriend].” The parties further agreed that they would return to court before the jury received that exhibit. The redacted portion of the statement was unrelated to the robbery for which the defendant was standing trial. However, in violation of CPL 310.20(1) and the parties' express agreement, the defendant's statement was mistakenly provided to the jury, without the attorneys having been notified first, and without the statement having been fully redacted … . Instead of granting the defense attorney's motion for a mistrial, as it should have done in view of the highly prejudicial nature of the redacted portion of the statement, the Supreme Court gave an instruction regarding the statement that was ineffectual in curing the prejudice. “The right to a fair trial is self-standing,” and where error operates to deprive the defendant of a fair trial, an appellate court “must reverse the conviction and grant a new trial, quite without regard to any evaluation as to whether the errors contributed to the defendant's conviction” … . People v Reid, 2016 NY Slip Op 03535, 2nd Dept 5-4-16

CRIMINAL LAW (PROVIDING AN UNREDACTED STATEMENT TO THE JURY BY MISTAKE DEPRIVED DEFENDANT OF A FAIR TRIAL AND REQUIRED REVERSAL)/EVIDENCE (CRIMINAL LAW, PROVIDING AN UNREDACTED STATEMENT TO THE JURY BY MISTAKE DEPRIVED DEFENDANT OF A FAIR TRIAL AND REQUIRED REVERSAL)

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