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Enhanced Sentencing for Second Child Sexual Assault Felony Offenders Is Required by Penal Law 70.07; Language in Criminal Procedure Law 400.19 Can Not Be Interpreted to Mean the People Can Decide Not to Seek the Enhanced Sentence

The Court of Appeals, in a full-fledged opinion by Judge Rivera, in affirming defendant’s conviction and sentencing, discussed ineffective assistance, prosecutorial misconduct, and statutory interpretation issues. The ineffective assistance and prosecutorial misconduct discussions are fact-specific and not summarized here. With respect to the statutory interpretation issue, the defendant argued he should not have been sentenced as a second child sexual assault felony offender because the People were required to file a predicate statement (notifying him an enhanced sentence would be sought) prior to trial and did not do so. The court determined the statutory language indicating the predicate statement “may” be filed any time before trial (in Criminal Procedure Law [CPL] 400.19) did not preclude the People from filing the statement after trial started, and did not indicate the People had the discretion not to seek an enhanced sentence:

The explicit language in section one [of Penal Law 70.07] states that a person convicted of a felony offense for sexual assault against a child, who has a predicate felony conviction for child sexual assault, “must be sentenced” in accordance with Penal Law § 70.07 sentencing provisions. The applicable time for invoking the procedures contained in CPL 400.19 does not change the import of the mandatory language in Penal Law § 70.07, which subjects this category of offenders to legislatively promulgated enhanced sentences. Furthermore, the specific language in CPL 400.19 (2) upon which defendant relies merely permits filing of the statement before commencement of a trial. It does not prohibit filing afterwards, and before sentencing. As courts have concluded, “may” does not mean “must” … . Notwithstanding defendant’s requests that we read the statute otherwise, this Court is without authority to read mandatory language into a statute where it is otherwise absent … . People v Wragg, 2015 NY Slip Op 08453, CtApp 11-19-15

 

Where Defendant Was Released on a Writ of Habeas Corpus, the Relevant Period of Incarceration Can Not Be Excluded from the Ten-Year Second Violent Felony Offender Calculation; Without That Exclusion, Defendant Could Not Be Sentenced as a Second Felon

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined (1) Criminal Procedure Law (CPL) 120.90, requiring a quick arraignment after arrest, only applies where the defendant is arrested by police officers (here corrections officers told defendant of his arrest); (2) CPL 190.50, requiring notice of a grand jury presentation, does not apply where defendant has not been arraigned in a local court; and (3) the 442 days defendant was incarcerated for a parole violation could not be excluded from the ten-year “second violent felony offender” calculation because he was released from that incarceration on a writ of habeas corpus. Without that 442-day exclusion, defendant’s prior conviction was older than ten years and he could not be sentenced as a second felon:

A defendant who stands convicted of a violent felony may be adjudicated a second violent felony offender if he was previously convicted of a violent felony within ten years of the current offense (see Penal Law § 70.04[1][b][iv]). “[A]ny period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony” is excluded from the ten-year calculation (Penal Law § 70.04[1][b][v]). * * *

Although the habeas court did not vacate defendant’s conviction for a parole violation, it did grant his immediate release from confinement after determining that “the evidence did not support” defendant’s incarceration. A person “illegally imprisoned or otherwise restrained in his liberty . . . may petition without notice for a writ of habeas corpus to inquire into the cause of such detention and for deliverance” (CPLR 7002[a]). If a judge considering the habeas petition determines that a person has been unlawfully detained, he “shall . . . issue a writ of habeas corpus for the relief of that person” (id.). That the habeas court in this case granted defendant’s immediate release based on a lack of evidence indicates that defendant was “imprisoned without reason” from 1992-1993. People v Small, 2015 NY Slip Op 08457, CtApp 11-19-15

 

Presumption of Vindictive Sentencing Did Not Apply Here Where Defendant Rejected a Plea Offer with a Sentence of Ten Years Probation and, After Trial, Was Sentenced to 10 to 20 Years in Prison

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissent, determined defendant was not entitled to the presumption of vindictive sentencing. Defendant, in this rape case, was offered a plea to a D felony and 10 years probation. The defendant went to trial and was sentenced to 10 to 20 years in prison. The court explained that the presumption of vindictive sentencing, which has been applied to sentencing upon retrial after a successful appeal, did not apply in this case:

“[C]riminal defendants should not be penalized for exercising their right to appeal” … . After a new trial, the sentencing court must give affirmative reasons “concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding” to justify a higher sentence … . * * *

By contrast, the same policy concerns are not implicated when a defendant rejects a plea offer, proceeds to trial for the first time, and is given a harsher sentence than the plea offer.

“Given that the quid pro quo of the bargaining process will almost necessarily involve offers to moderate sentences that ordinarily would be greater, it is also to be anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea” (People v Pena , 50 NY2d 400, 412 … ). In Pena , this Court concluded that the defendant was not punished by the imposition of the lawful, but greater, sentence received after rejecting a lenient plea offer and proceeding to trial.

Here, after hearing the court’s warning that he would not receive such leniency should he be found guilty, defendant rejected the plea offer and proceeded to trial. Supreme Court imposed a lawful sentence, based upon defendant’s remorseless statement at the sentencing hearing, the heinous nature of the crimes, and the victim’s sentencing statement. Furthermore, the plea offer would have required defendant to plead guilty to a class D felony, whereas defendant was convicted after trial of a class B violent felony offense for which the court could not have legally imposed the probationary sentence offered with respect to the plea. Defendant’s rejection of the plea offer also required the victim to testify about the sexual abuse at trial, a factor this Court has recognized as a legitimate basis for the imposition of a more severe sentence after trial than that which the defendant would have received upon a plea of guilty … . Had the presumption of vindictiveness applied to this case, these would constitute legitimate and reasoned bases for the more severe sentence imposed … . People v Martinez, 2015 NY Slip Op 08456, CtApp 11-19-15

 

Evidence Supported Conviction of Police Officer for Divulging an Eavesdropping Warrant

The First Department determined the evidence supported the conviction of a police officer for divulging the existence of an eavesdropping warrant. The warrant was issued in connection with an investigation of corrupt police officers. Defendant warned police officers about the warrant and cautioned them to be careful on the phone:

Penal Law § 250.20 states as follows: “A person is guilty of divulging an eavesdropping warrant when, possessing information concerning the existence or content of an eavesdropping warrant . . . , he discloses such information to another person . . .” The trial court, prior to rendering its verdict, explained that “knowledge, actual knowledge, is required[,]” and rejected the People’s argument that mere rumor would be enough to satisfy the requirements for the divulging count. On appeal, viewing the evidence in the light most favorable to the People, the evidence was sufficient for the trial court to conclude that defendant divulged information concerning the existence and content of an eavesdropping warrant … , and we see no reason to set the verdict aside as against the weight of the evidence … . People v Cobb, 2015 NY Slip Op 08498, 1st Dept 11-19-15

 

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Defendant’s Statement Was Circumstantial Evidence of the Taking Element of Grand Larceny Because an Innocent Inference from the Statement Was Possible; Video Surveillance Was Direct Evidence of the Taking Element Despite Defendant’s “Innocent” Explanation of His Actions

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined video surveillance showing defendant first hiding and then rifling through the victim's purse was direct, not circumstantial, evidence of the taking element of grand larceny (despite the defendant's non-criminal explanation of his actions). The court also determined the defendant's statement “I don't have it, but I can get it” (made when asked about the purse) was circumstantial evidence of the taking element because an innocent explanation for having the purse could be inferred from the statement. Because both direct and circumstantial evidence of grand larceny was presented, the circumstantial-evidence jury instruction was not required:

It is well settled that a trial court must grant a defendant's request for a circumstantial evidence charge when the proof of the defendant's guilt rests solely on circumstantial evidence … . By contrast, where there is both direct and circumstantial evidence of the defendant's guilt, such a charge need not be given … .

We agree with defendant that his statement to the prosecution witness that he did not have the purse but could get it was not direct evidence of his guilt. A defendant's statement is direct evidence only “if it constitutes 'a relevant admission of guilt' ” … . * * *

Here, defendant's statement — that he did not have the purse but could get it — was not a direct admission of his guilt of larceny. Rather, defendant's statement was also consistent with an inference that although he did not steal the purse, he knew where the purse was located and thought he could obtain it. Inasmuch as his statement merely included inculpatory facts from which the jury may or may not have inferred guilt, his statement was circumstantial rather than direct evidence … .

We agree with the People, however, that the surveillance video constituted direct evidence of defendant's guilt of larceny. The “taking” element of larceny “is satisfied by a showing that the thief exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner's continued rights” … . People v Hardy, 2015 NY Slip Op 08369, CtApp 11-18-15


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Statements Made by Defendant Indicating He Was On a First Name Basis with Police Officers and that He Had Been in Jail Should Not Have Been Admitted Because the Statements Were Not Relevant to a Material Issue in the Case, The Error Was Harmless However

Although the error was deemed harmless, the Second Department determined statements made by the defendant indicating he was on a first name basis with police officers and mentioning he had been in jail should not have been admitted in evidence:

Evidence of prior crimes or bad acts is not admissible to show a defendant’s predisposition to criminal conduct … . Such evidence, however, is admissible when it is relevant to a material issue in the case, and the probative value of the evidence outweighs the potential prejudice to the defendant … . We agree with the defendant that the County Court erred in allowing these statements to be admitted into evidence, as the prosecutor failed to establish that any of the comments were relevant to a material issue in the case … . People v McPhillips, 2015 NY Slip Op 08440, 2nd Dept 11-18-15

 

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Courts Have the Power to Exclude Evidence Admitted by Stipulation; Trial Judge’s Refusal to Exclude the Evidence, Under the Facts, Was Not an Abuse of Discretion

In a conspiracy prosecution arising from a scheme to defraud mortgage lenders, the Court of Appeals determined the trial judge properly refused to exclude documentary evidence, and testimony concerning the evidence, which, although inadmissible, was admitted by stipulation and was not objected to until the day after the testimony. The court noted that the trial judge, in the exercise of discretion, had the power to exclude the evidence, despite the stipulation.  But because the admitted evidence did not raise a constitutional (confrontation) issue, was not highly prejudicial, and was not the subject of a timely objection, the trial judge did not abuse his discretion in this case:

Although courts are ordinarily bound to enforce party stipulations … , where a party has in the interests of judicial economy stipulated to the admission of voluminous materials and there are among them scattered items, both prejudicial and ordinarily inadmissible that may reasonably have escaped counsel’s attention, there is no rule preventing an exercise of judicial discretion to relieve the party, at least in part, from the stipulation, particularly where doing so would not significantly prejudice the other side. The trial court here did not take a contrary view in declining to redact the record as defendant requested. It ruled as it did not because it understood the parties’ stipulation categorically to preclude relief of the sort sought, but because significant unobjected-to testimony had already been received … . While the court might have exercised its discretion differently, its decision not to revisit the issue of the notation’s admissibility, cannot under the circumstances be characterized as an abuse of discretion, as would be necessary for it to qualify as a predicate for relief in this Court … . Although the stipulation was not irreversibly binding, it was at least presumptively enforceable and defendant offered no plausible excuse for failing earlier to seek an exception from its coverage. Assuming that the disputed notation might have reasonably escaped notice before trial — and that is at best questionable — it was prominently referenced in [the related] testimony, but even then elicited no contemporaneous protest.

This moreover was not a situation in which the receipt of an extrajudicial statement resulted in a denial of the constitutional right of confrontation. The notation was not testimonial hearsay … ; at worst its admission ran counter to evidentiary rules of nonconstitutional provenance and was, in light of other evidence in the case received without even belated objection, practically redundant. Indeed, a different exercise of discretion by the trial court to exclude the note and redact record references to it, would not have materially altered the evidentiary equation. People v Gary, 2015 NY Slip Op 08368, CtApp 11-18-15

 

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Evidence of Prior Violent Act by Defendant Properly Admitted to Refute “Extreme Emotional Disturbance” Affirmative Defense

The Court of Appeals, in a full-fledged opinion by Judge Stein, in a murder case, determined that evidence of a prior violent act committed by the defendant was properly admitted to rebut defendant’s “extreme emotional disturbance” defense. Defendant presented expert testimony alleging he suffered from post-traumatic stress disorder (PTSD) stemming from a stabbing attack. The defendant argued that his reaction to seeing his friend attacked, intensified by the PTSD, was the reason he fired his gun at a group of people, killing one of them. The defense argued that, prior to the stabbing which triggered the PTSD, defendant was a non-violent person. The evidence of the pre-PTSD violent act by defendant was properly admitted to call into question the “PTSD” defense. A violent incident which occurred after the charged offense, however, should not have been admitted:

Where …. evidence of a defendant’s bad acts or uncharged crimes is “relevant to some material fact in the case, other than the defendant’s propensity to commit the crime charged, it is not to be excluded merely because it shows that the defendant had committed other crimes” … .

Evidence of uncharged criminal conduct or bad acts that are probative of a defendant’s state of mind may be admissible if the defendant “opens the door” to such evidence by putting in issue his state of mind at the time of the commission of the charged crime by, for example, raising an extreme emotional disturbance or insanity defense … . Nevertheless, such a defense opens the door to the People’s rebuttal evidence “only to the extent that [the proffered] evidence has a natural tendency to disprove [the defendant’s] specific claim” … . That is, evidence of uncharged crimes or bad acts is admissible to rebut an extreme emotional disturbance defense where the evidence has “some ‘logical relationship’ to, and a ‘direct bearing upon,’ the People’s effort to disprove” the defense, and the probative value of the evidence outweighs its prejudicial effect … .  Although the balancing of probative value against potential prejudice is a matter that lies within the trial court’s discretion …, “the threshold question of identifying a material issue to which the evidence is relevant poses a question of law” … .

… The crux of the defense was that defendant, a previously nonviolent person, was suffering from PTSD as a result of the 2005 stabbing incident and that his actions in firing into the group on the street were attributable to his PTSD. By raising this defense and presenting the testimony of [two witnesses] — both of whom testified regarding defendant’s personality and behavior before the 2005 stabbing as compared with his behavior after that event — defendant “necessarily put[] in issue some aspects of his character and personal history” … . The prosecutor’s inquiries pertaining to the 2002 incident were “directly relevant to the question of defendant’s reaction patterns” because it was an instance in which “defendant had resorted to violence in the face of relatively mild provocation” before the 2005 stabbing occurred … . This altercation “ha[d] a logical and natural tendency to disprove [defendant’s] specific claim” that he was an otherwise peaceful person who reacted with violence only because his PTSD was triggered by the circumstances in which the shooting took place … . In other words, it tended to refute the subjective element of defendant’s defense, i.e. that he actually acted under the influence of PTSD. Moreover, the court’s decision to allow this incident to be explored on cross-examination, rather than through the testimony of a rebuttal witness, was not improper under the facts presented here. People v Israel, 2015 NY Slip Op 08370, CtApp 11-18-15

 

 

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Evidence of Constructive Possession of Contraband Insufficient, Convictions Reversed

The defendant was convicted of possession of marijuana and weapons found in a bedroom of an apartment in which defendant and several others were present. The Second Department determined there was insufficient evidence that defendant constructively possessed the contraband and reversed:

The element of constructive possession may be established, inter alia, where it is shown that the defendant exercised ” dominion or control'” over the property by exercising a sufficient level of control over the place where the contraband is found or over the person from whom the contraband is seized … . “Constructive possession may be established by direct evidence or by circumstantial evidence with inferences drawn from the facts presented in the case” … . “Where . . . the prosecution relies wholly upon circumstantial evidence to establish the guilt of the accused, the circumstances must be satisfactorily established and must be of such a character as, if true, to exclude to a moral certainty every other hypothesis except that of the accused’s guilt” … .

Viewing the evidence in the light most favorable to the People …, it was legally insufficient to establish the possession elements of the weapons possession and marijuana possession counts, as charged here. Although the defendant was present in the apartment when the search warrant was executed, “it is settled that one’s mere presence in an apartment or house where contraband is found does not constitute sufficient basis for a finding of constructive possession” … . There was no evidence specifically connecting the defendant to the bedroom where the contraband was found, or otherwise connecting the defendant to the contraband. Under these specific circumstances, the People failed to prove that the defendant exercised dominion and control over the contraband, and therefore failed to prove the possession element of the counts as charged … . People v Brown, 2015 NY Slip Op 08428. 2nd Dept 11-18-15

 

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Inaccurate Advice About the Deportation Consequences of a Guilty Plea Constitutes Ineffective Assistance; Defendant Entitled to a Hearing on His Motion to Vacate His Conviction in this Pre-Padilla Case

The Second Department determined defendant was entitled to a hearing on his motion to vacate his conviction (by guilty plea) in this pre-Padilla case. Defendant alleged he was told deportation was not likely, or was a “possibility,” when, in fact, deportation was mandatory. That allegation, plus an assertion he would have negotiated a different plea which did not require deportation had he known the actual consequences of his plea, was sufficient to warrant a hearing:

In Padilla v Kentucky (559 US 356), the United States Supreme Court ruled that the Sixth Amendment to the United States Constitution requires criminal defense counsel to advise their noncitizen clients about the risk of deportation arising from a guilty plea. However, that decision is not applied retroactively to state court postconviction proceedings … . Since the defendant’s judgment of conviction became final when his time to take an appeal expired—long before Padilla was decided in 2010—Padilla is not applicable here. Therefore, “counsel’s failure to warn a defendant that a guilty plea might lead to removal from the United States” …  does not, in this case, amount to ineffective assistance of counsel.

However, “inaccurate advice about a guilty plea’s immigration consequences constitute[s]” ineffective assistance of counsel … . People v Pinto, 2015 NY Slip Op 08441, 2nd Dept 11-18-15

 

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