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FOR PURPOSES OF THE TEN-YEAR LOOK-BACK PERIOD FOR SECOND VIOLENT FELONY OFFENDER STATUS, THE DATE OF THE ORIGINAL SENTENCE TO PROBATION, NOT THE DATE OF THE SUBSEQUENT SENTENCE FOR VIOLATION OF PROBATION, CONTROLS.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, determined defendant should not have been sentenced as a second violent felony offender because the operative prior conviction occurred outside the 10-year look-back period. Defendant was convicted of assault and sentenced to probation in 1994. He subsequently violated probation and was sentenced to incarceration in 1995. The lower courts used the 1995 sentence, which was within the 10-year look-back. But the Court of Appeals determined the 1994 sentence controlled. The revocation of probation in 1995 did not annul the original 1994 sentence:

 

The People would have us believe that sentence was imposed with respect to the prior conviction twice — once, in 1994, when defendant was subject to a period of probation through the original sentence, and again in 1995, when defendant was subject to a period of incarceration through the resentence. To be sure, the period of probation was imposed as part of a revocable sentence (Penal Law § 60.01 [2] [a] [i]), which is a “tentative [punishment in] that it may be altered or revoked” (Penal Law § 60.01 [2] [b]). For all other purposes, however, a revocable sentence “shall be deemed to be a final judgment of conviction” (id.), and where “the part of the sentence that provides for probation is revoked, the court must sentence [a defendant] to imprisonment or to [a] sentence of imprisonment and probation” (Penal Law § 60.01 [4] [emphasis added]). The legislature’s reference to the revocation of the part of the sentence imposing probation suggests that the substitution of a different punishment — such as incarceration — for the probation a defendant has violated does not constitute a new sentence, but rather a replacement of the original, conditional penalty reflected in the sentence.

Put differently, to revoke a penalty of probation does not equate to annulling a sentence. People v Thompson, 2016 NY Slip Op 00997, CtApp 2-11-16

 

CRIMINAL LAW (SECOND VIOLENT FELONY OFFENDER, TEN-YEAR LOOK-BACK, DATE OF ORIGINAL SENTENCE TO PROBATION, NOT SUBSEQUENT SENTENCE FOR VIOLATION OF PROBATION, CONTROLS)/SENTENCING (SECOND VIOLENT FELONY OFFENDER, TEN-YEAR LOOK-BACK, DATE OF ORIGINAL SENTENCE TO PROBATION, NOT SUBSEQUENT SENTENCE FOR VIOLATION OF PROBATION, CONTROLS)/SECOND VIOLENT FELONY OFFENDER STATUS/(TEN-YEAR LOOK-BACK, DATE OF ORIGINAL SENTENCE TO PROBATION, NOT SUBSEQUENT SENTENCE FOR VIOLATION OF PROBATION, CONTROLS)

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TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT RELIEVED DEFENSE COUNSEL ON CONFLICT OF INTEREST GROUNDS BECAUSE A POTENTIAL WITNESS HAD BEEN REPRESENTED BY ANOTHER ATTORNEY IN THE SAME LARGE CRIMINAL DEFENDER ORGANIZATION.

The Court of Appeals, in a full-fledged opinion by Judge Stein, reversing the Appellate Division, determined the trial judge did not err by relieving defendant’s attorney, over defendant’s objection, on conflict of interest grounds.  The defense attorney, Fisher, worked for New York County Defender Services (NYCDS). Another NYCDS attorney had represented Stephens, who was involved in the same incident which led to the charges against the defendant. Fisher had no knowledge of the facts of Stephens’ case, but, before he learned of the conflict, Fisher had been looking for Stephens during his investigation as a possible witness. Fisher was instructed by his supervisors at NYCDS he could not question Stephens, call Stephens as a witness, or cross-examine Stephens if the People called him. The defendant told the trial judge he was willing to waive the conflict, because he wanted Fisher to act as his attorney, but he wanted to call Stephens as a witness. The trial judge determined the conflict warranted the assignment of new counsel:

 

… [T]he Appellate Division erred in holding that the trial court abused its discretion. Supreme Court appropriately balanced defendant’s countervailing rights, based on the information it had at the time, and reasonably concluded that Fisher could not effectively represent defendant due to NYCDS’s representation of Stephens and the duty of loyalty Fisher’s supervisors were asserting toward that former client. People v Watson, 2016 NY Slip Op 00998, CtApp 2-11-16

 

CRIMINAL LAW (ATTORNEYS, CONFLICT OF INTEREST, POTENTIAL WITNESS HAD BEEN REPRESENTED BY ANOTHER ATTORNEY IN THE SAME LARGE CRIMINAL DEFENDER ORGANIZATION)/ATTORNEYS (ATTORNEYS, CONFLICT OF INTEREST, POTENTIAL WITNESS HAD BEEN REPRESENTED BY ANOTHER ATTORNEY IN THE SAME LARGE CRIMINAL DEFENDER ORGANIZATION)/CONFLICT OF INTEREST (ATTORNEYS, CONFLICT OF INTEREST, POTENTIAL WITNESS HAD BEEN REPRESENTED BY ANOTHER ATTORNEY IN THE SAME LARGE CRIMINAL DEFENDER ORGANIZATION)

DISCHARGE OF SWORN JUROR WITHOUT CONDUCTING AN APPROPRIATE INQUIRY AND WITHOUT SEEKING INPUT FROM COUNSEL WAS AN ABUSE OF DISCRETION, NEW TRIAL ORDERED.

The Second Department determined the court’s discharging a sworn juror without allowing counsel to be heard was an abuse of discretion requiring reversal and a new trial. The juror became upset when she learned the defendant was a relative of a person she sees every day. With counsel’s permission, the trial judge interviewed the juror alone. The judge discharged her without conducting a proper inquiry, without first explaining to counsel what was discussed and without hearing from both counsel on what should be done:

 

As a matter of procedure, the court, at a minimum, should have informed all parties of the substance of the in camera interview and provided each side with an opportunity to be heard before making its determination to discharge the sworn juror (… cf. CPL 270.35[2][b]). Contrary to the defendant’s contention, however, this procedural error, standing alone, was not inherently prejudicial … . Nevertheless, affording all sides an opportunity to be heard in this case might well have allowed counsel to oppose the court’s proposed disposition before it became a fait accompli. Further questioning of the juror might have revealed the underlying reasons for her uncertainty, thereby assisting the court in making an informed decision as to whether discharge of the juror was warranted.

Based on the Supreme Court’s very limited questioning of the subject juror, we find that the court improvidently exercised its discretion in discharging her. Assuming, as both parties contend, that the court’s authority to discharge the sworn juror must be considered under CPL 270.35 …, the court made little effort to ascertain whether the juror could, in fact, deliberate fairly and render an impartial verdict. In making such an important determination with respect to a sworn juror, “the court may not speculate as to possible partiality of the juror based on her equivocal responses. Instead, it must be convinced that the juror’s knowledge will prevent her from rendering an impartial verdict” … . People v Owens, 2016 NY Slip Op 00993, 2nd Dept 2-10-16

 

CRIMINAL LAW (DISCHARGE OF SWORN JUROR WITHOUT PROPER INQUIRY AND INPUT FROM COUNSEL WAS AN ABUSE OF DISCRETION, NEW TRIAL ORDERED)/JURORS (CRIMINAL LAW, DISCHARGE OF SWORN JUROR WITHOUT PROPER INQUIRY AND INPUT FROM COUNSEL WAS AN ABUSE OF DISCRETION, NEW TRIAL ORDERED)

SENTENCING YOUTHFUL OFFENDER TO CONSECUTIVE TERMS EXCEEDING FOUR YEARS WAS INCONSISTENT WITH THE CONCEPT OF YOUTHFUL OFFENDER TREATMENT.

The First Department determined that sentencing a youthful offender to consecutive sentences which exceeded four years was inconsistent with the underlying concept of youthful offender treatment:

 

By adjudicating defendant a youthful offender and sentencing him to a term of 1 to 4 years, to run consecutively to a sentence of one to three years on another YO adjudication, the court effectively imposed an aggregate term in excess of four years for two YO adjudications. The imposition of consecutive terms with an aggregate term of more than the normal YO maximum of four years “is inconsistent with the underlying concept of youthful offender treatment and it is unrealistic to conclude that one eligible for such treatment requires prolonged confinement to achieve the objectives of the legislation” … . People v Christopher P., 2016 NY Slip Op 00904, 1st Dept 2-9-11

 

CRIMINAL LAW (SENTENCING YOUTHFUL OFFENDER TO MORE THAN FOUR YEARS INCONSISTENT WITH PURPOSE OF YOUTHUL OFFENDER TREATMENT)/YOUTHFUL OFFENDER (SENTENCING YOUTHFUL OFFENDER TO MORE THAN FOUR YEARS INCONSISTENT WITH PURPOSE OF YOUTHUL OFFENDER TREATMENT)/SENTENCING (SENTENCING YOUTHFUL OFFENDER TO MORE THAN FOUR YEARS INCONSISTENT WITH PURPOSE OF YOUTHUL OFFENDER TREATMENT)

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STATEMENTS MADE AFTER ILLEGAL ARREST NOT SUPPRESSIBLE IF SUFFICIENTLY ATTENUATED.

in finding suppression of defendant’s statements was properly denied, the Fourth Department explained that an illegal arrest will not require the suppression of statements if the statements were “sufficiently attenuated” from the arrest:

 

… [E]ven assuming that defendant was illegally arrested, “defendant’s statements were sufficiently attenuated from the illegal arrest to be purged of the taint created by the illegality” … . “[A] confession that is made after an arrest without probable cause is not subject to suppression if the People adequately demonstrate that the inculpatory admission was attenuated’ from the improper detention; in other words, it was acquired by means sufficiently distinguishable from the arrest to be purged of the illegality’ ” … . In determining whether there has been attenuation, courts must consider “the temporal proximity of the arrest and the confession, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct” … .

Here, defendant was not interrogated until almost 2½ hours after his arrest … . He was given Miranda warnings prior to the interrogation, which is an “important” attenuation factor … . Before defendant was interrogated, a codefendant implicated defendant in at least one of the crimes, which constituted a significant intervening event and provided the police with probable cause … . People v Buchanan, 2016 NY Slip Op 00800, 4th Dept 2-5-16

 

CRIMINAL LAW (STATEMENTS AFTER ILLEGAL ARREST NOT SUPPRESSIBLE IF SUFFICIENTLY ATTENUATED)/EVIDENCE (STATEMENTS AFTER ILLEGAL ARREST NOT SUPPRESSIBLE IF SUFFICIENTLY ATTENUATED)/SUPPRESSION (STATEMENTS AFTER ILLEGAL ARREST NOT SUPPRESSIBLE IF SUFFICIENTLY ATTENUATED)

JURY INSTRUCTIONS ALLOWED CONSIDERATION OF A THEORY NOT ALLEGED IN THE INDICTMENT OR BILL OF PARTICULARS, CONVICTIONS REVERSED.

The Fourth Department reversed defendant’s conviction on several counts charging sexual offenses because the jury instructions allowed consideration of theories not alleged in the indictment or bill of particulars. Therefore it was not possible to determine whether an uncharged theory was a basis for the jury’s verdict:

 

Although defendant did not object to the court’s instructions and thus did not preserve his contention for our review, we conclude that “preservation is not required” …, inasmuch as “defendant has a fundamental and nonwaivable right to be tried only on the crimes charged,” as limited by either the bill of particulars or the indictment itself … . Where the court’s jury instruction on a particular count erroneously contains an additional theory that differs from the theory alleged in the indictment, as limited by the bill of particulars, and the evidence adduced at trial could have established either theory, reversal of the conviction on that count is required because there is a possibility that the jury could have convicted the defendant upon the uncharged theory … . Indeed, such an error cannot be deemed harmless because it is impossible for an appellate court reviewing a general verdict to ascertain on which theory the jury convicted the defendant or whether the jury was unanimous with respect to the theory actually charged in that count … . People v Graves, 2016 NY Slip Op 00853, 4th Dept 2-5-16

 

CRIMINAL LAW (JURY INSTRUCTIONS ALLOWED CONSIDERATION OF A THEORY NOT CHARGED, CONVICTIONS REVERSED)/JURY INSTRUCTIONS (INSTRUCTIONS ALLOWED CONSIDERATION OF A THEORY NOT CHARGED, CONVICTIONS REVERSED)

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HEARSAY EVIDENCE OF CHARGES OF WHICH SEX OFFENDER WAS ACQUITTED AND CHARGES WHICH WERE DISMISSED SHOULD NOT HAVE BEEN CONSIDERED, NEW TRIAL ORDERED.

The First Department determined respondent sex-offender was entitled to a new civil-commitment trial because the state’s expert relied on sex-offense charges of which respondent was acquitted and other sex-offense charges which were dismissed. The acquittal was completely off-limits. And no evidence to demonstrate respondent had committed the dismissed offenses was presented. The court noted that, in order to preserve a challenge to the sufficiency of the evidence in these Mental Hygiene Law proceedings, a motion for a directed verdict must be made at the close of the state’s proof:

 

Respondent failed to preserve his remaining claims that the trial evidence was legally insufficient to support the jury’s verdict. In order to challenge the sufficiency of the evidence on appeal, a party must first have moved for a directed verdict under CPLR 4401 … . Here, respondent never moved before the trial court for a directed verdict or otherwise challenged the legal sufficiency of the evidence. Thus, his claims are unpreserved for appellate review, and we decline to reach them.

… [T]he court erred in allowing the State’s experts, in explaining the basis for their opinions, to testify regarding two sets of sex offense charges against respondent that did not result in convictions (see Matter of State of New York v Floyd Y., 22 NY3d 95 [2013]). In Floyd Y., the Court held that hearsay basis evidence satisfies due process only if it is demonstrated to be reliable and its probative value outweighs its prejudicial effect (id. at 109). Here, one set of charges resulted in an acquittal, and so was categorically precluded from providing the basis for reliability (id. at 110). The second group of charges, which resulted in dismissal, also failed to meet the reliability threshold, because they were unaccompanied by indicia that respondent committed the charged acts notwithstanding the lack of a conviction (see id.). Accordingly, a new trial is required. Matter of State of New York v David S., 2016 NY Slip Op 00777, 1st Dept 2-4-16

 

MENTAL HYGIENE LAW (EVIDENCE OF CHARGES OF WHICH SEX OFFENDER WAS ACQUITTED AND CHARGES WHICH WERE DISMISSED SHOULD NOT HAVE BEEN CONSIDERED IN ARTICLE 10 TRIAL)/EVIDENCE (HEARSY EVIDENCE OF CHARGES OF WHICH SEX OFFENDER WAS ACQUITTED AND CHARGES WHICH WERE DISMISSED SHOULD NOT HAVE BEEN CONSIDERED IN ARTICLE 10 TRIAL)/APPEALS (TO PRESERVE CHALLENGE TO LEGAL SUFFICIENCY OF EVIDENCE IN A MENTAL HYGIENE LAW ARTICLE 10 SEX-OFFENDER CIVIL-COMMITMENT PROCEEDING, SEX OFFENDER MUST MOVE FOR A DIRECTED VERDICT)

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POLICE HAD NO REASON TO DETAIN DEFENDANT-PASSENGER AFTER TRAFFIC TICKET ISSUED TO DRIVER, STATEMENTS SHOULD HAVE BEEN SUPPRESSED; PROSECUTORIAL MISCONDUCT REQUIRED A NEW TRIAL AS WELL.

In reversing defendant’s conviction for criminal possession of a weapon, the Fourth Department determined a new trial was required because defendant’s statements should have been suppressed, and because of prosecutorial misconduct. Defendant was a passenger in a car which was stopped for having a suspended registration. After the driver was given a ticket, defendant asked if he could leave. He was told by the police he could not leave until an inventory search of the car was completed. Defendant’s statements were made subsequently. The Fourth Department held that, once the ticket was given to the driver, the police had no reason to detain defendant further. The Fourth Department addressed the prosecutorial misconduct in the interest of justice (despite the lack of preservation). With respect to prosecutorial misconduct, the court wrote:

 

During cross-examination, the prosecutor questioned the driver of the vehicle regarding an out-of-court conversation between them, asking her whether she came to his office and admitted that the defendant “[tried] to get [her] to come and take the blame for the gun.” After the witness denied for the second time that such a conversation had taken place, the prosecutor rhetorically asked, “[b]ut you were the one who was convicted of Scheme to Defraud, correct?” By challenging the witness with respect to the out-of-court conversation, the prosecutor both improperly interjected his personal opinion as to the truthfulness of the testimony and suggested to the jury that his own, unsworn version of events should be credited … .

In addition, instances of prosecutorial misconduct on summation deprived defendant of his right to a fair trial. The prosecutor improperly denigrated defendant’s case by referring to certain contentions as “[a]ll this nonsense,” made repeated non sequiturs distinguishing the case from the John F. Kennedy assassination, and asserted that the defense was “twisting things” and employing “tricks” … . The prosecutor compounded those statements by consistently commenting on witness credibility, calling the defense witnesses “a cast of characters,” “people com[ing] out of the woodwork,” and specifically referring to one witness as “a piece of work.” The prosecutor accused the defense witnesses of lying, and also argued that one could not believe a certain witness who had a lawyer advising her while testifying, stating that he “couldn’t tell if those were her words or her lawyer’s words when she was talking.” Not only did the prosecutor state his belief that witnesses had lied, he also alleged that the witnesses must have met secretly in order to plan and collude regarding their testimony. That was patently improper … .

In addition to criticizing defendant’s case and witnesses, the prosecutor also engaged in misconduct on summation by suggesting that an acquittal would require the jury to find a conspiracy by law enforcement … , by improperly suggesting that defendant bore a burden of proof … , and by misstating a key point of law regarding detention incident to a traffic stop… , People v Porter, 2016 NY Slip Op 00852, 4th Dept 2-5-16

CRIMINAL LAW (SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED, NO REASON TO DETAIN)/CRIMINAL LAW (PROSECUTORIAL MISCONDUCT REQUIRED NEW TRIAL)/EVIDENCE (SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED, NO REASON TO DETAIN)/SUPPRESSION (MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, NO REASON TO DETAIN)/ATTORNEYS (PROSECUTORIAL MISCONDUCT REQUIRED NEW TRIAL)/PROSECUTORIAL MISCONDUCT (NEW TRIAL ORDERED)

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RIGHT TO TESTIFY BEFORE A GRAND JURY IS NOT A RIGHT RESERVED TO A DEFENDANT, IT IS A STRATEGIC DECISION TO BE MADE BY COUNSEL.

The First Department, in affirming defendant’s conviction, noted that defendant was not deprived of a right to testify before the grand jury when his attorney, against defendant’s wishes, withdrew the notice of intent to testify. The right to testify before the grand jury is not among the rights reserved to a defendant:

 

The court properly denied defendant’s motion to dismiss the indictment, made on the ground that he was deprived of his right to testify before the grand jury when, against defendant’s wishes, his counsel withdrew defendant’s notice of intent to testify. We decline to revisit our prior holdings … that the right to testify before the grand jury is not among the rights reserved to a defendant, but is among the rights whose exercise is a strategic decision requiring “the expert judgment of counsel” … . People v Cintron, 2016 NY Slip Op 00618, 1st Dept 2-2-16

 

CRIMINAL LAW (RIGHT TO TESTIFY BEFORE GRAND JURY IS NOT RESERVED TO A DEFENDANT)/GRAND JURIES (RIGHT TO TESTIFY BEFORE GRAND JURY IS NOT RESERVED TO A DEFENDANT)/ATTORNEYS (CRIMINAL LAW, WHETHER TO TESTIFY BEFORE GRAND JURY IS A STRATEGIC DECISION TO BE MADE BY COUNSEL, NOT DEFENDANT)

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STATEMENT SHOULD NOT HAVE BEEN ADMITTED AS A PROMPT OUTCRY, CONVICTION REVERSED.

The First Department determined a text message sent by the 15-year-old victim of an alleged sexual assault should not have been admitted under the “prompt outcry” hearsay exception. Defendant’s conviction was reversed:

 

A complaint is timely for purposes of the prompt outcry exception if made “at the first suitable opportunity,” which is a “relative concept dependent on the facts” … .

While a significant delay in reporting does not necessarily preclude outcry evidence, especially where the victim is a child … , when the complainant is a teenager (or older), “the concept of promptness necessarily suggests an immediacy not ordinarily present when months go by” … . With respect to teenagers and adults rather than young children, a reporting delay of several months may be justified if there were “legally sufficient circumstances” that would excuse the victim’s delay, such as the victim being “under the control or threats of the defendant…or being among strangers and without others in whom [the victim] could confide” … .

Here … there is an absence of circumstances to bring this lengthy delay within the prompt outcry rule. While the evidence indicated that the complainant experienced confusion, shock, embarrassment, and fear of not being believed, as well as concern about her mother and grandmother’s reactions, there is no evidence that she was threatened by defendant or was under his control. Although the outcry occurred after defendant was incarcerated on a parole violation, the complainant made the disclosure at least a month after that circumstance occurred, and she did not testify that she delayed her disclosure based on a fear of retribution. People v Ortiz, 2016 NY Slip Op 00593, 1st Dept 1-28-16

CRIMINAL LAW (STATEMENT SHOULD NOT HAVE BEEN ADMITTED AS A PROMPT OUTCRY)/EVIDENCE (STATEMENT SHOULD NOT HAVE BEEN ADMITTED AS A PROMPT OUTCRY)/HEARSAY (STATEMENT SHOULD NOT HAVE BEEN ADMITTED AS A PROMPT OUTCRY)/PROMPT OUTCRY (STATEMENT SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE)

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