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Two-Hour Interval Did Not Return Defendant to Status of One Who Was Not Under the Influence of Unwarned Questioning—Subsequent Mirandized Statement Should Have Been Suppressed—Harmless Error Here However

The Second Department determined the two-hour interval between defendant’s unwarned statement and a mirandized statement did not save the mirandized statement from suppression. During the unwarned statement defendant agreed to make a subsequent videotaped statement (which was mirandized). During the two hours between the unwarned statement and the videotaped statement defendant the defendant was never returned to the status of one who was not under questioning. The error here (admitting the videotaped statement) was, however, deemed harmless:

“[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a single continuous chain of events’, there is inadequate assurance that the Miranda warnings were effective in protecting a defendant’s rights, and the warned statement must also be suppressed” … . In determining whether a subsequent statement made after Miranda warnings were given was part of a “single continuous chain of events,” the court considers various factors including “whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether, prior to the Miranda violation, defendant had indicated a willingness to speak to police” … . The purpose of the inquiry is to determine whether there was a “definite, pronounced break in questioning sufficient to return the defendant to the status of one who is not under the influence of questioning” … .

Here, the statement made by the defendant during the pre-9 a.m. questioning, which the Supreme Court suppressed, and the second videotaped statement were part of a single continuous chain of events inasmuch as during the pre-9 a.m. questioning, Detective Rodriguez asked the defendant to make a further videotaped statement when he interrogated the defendant in violation of his constitutional rights. Therefore, during the two-hour break, the defendant was never returned to the status of one who was not under the influence of questioning …, but was anticipating the arrival of the Assistant District Attorney to continue the interrogation. Moreover, Detective Rodriguez, who elicited the 10-to-15 minute statement the defendant made during the pre-9 a.m. questioning without having been again given his Miranda warnings, was present during the subsequent videotaped interrogation, and both interrogations were conducted in the same interview room … . Considering these factors and the nature and extent of the Miranda violation, we cannot conclude that there was a definite, pronounced break between the defendant’s first and second videotaped statements sufficient to return the defendant to the status of one who was not under the influence of questioning … . People v Rodriguez, 2015 NY Slip Op 07520, 2nd Dept 10-14-15

 

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Upward Departure from Level One to Three Not Warranted by the Evidence

The Second Department reversed the SORA court, finding that the People did not prove by clear and convincing evidence an upward departure from the presumptive risk level was warranted. The upward departure was erroneously based upon defendant’s psychiatric history, the place of the offense (a group home), a parole violation ten years before the sex offense and two older bench warrants. The court explained the “upward departure” analytical criteria and reduced the defendant’s risk level from three (the highest) to one (the lowest):

Once the presumptive risk level has been established at a risk level hearing, the court is permitted to depart from it if “special circumstances” warrant a departure … . An upward departure is permitted only if the court concludes, upon clear and convincing evidence, “that there exists an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] [G]uidelines” … . In determining whether an upward departure is permissible and, if permissible, appropriate, the court must engage in a three-step inquiry. First, the court must determine whether the People have articulated, as a matter of law, a legitimate aggravating factor. Next, the court must determine whether the People have established, by clear and convincing evidence, the facts supporting the presence of that factor in the case before it. Upon the People’s satisfaction of these two requirements, an upward departure becomes discretionary. If, upon examining all of the circumstances relevant to the offender’s risk of reoffense and danger to the community, the court concludes that the presumptive risk level would result in an underassessment of the risk or danger of reoffense, it may upwardly depart from that risk level … . If, however, the People do not satisfy the first two requirements, the court does not have the discretion to depart from the presumptive risk level … .

Here, the People did not meet their burden at the hearing. The People contended that the defendant’s psychiatric history and the fact that the defendant’s sex offense was committed in a group home constituted aggravating factors not adequately taken into account by the SORA Guidelines. The People failed to prove by clear and convincing evidence that the defendant’s psychiatric history was related to his risk of reoffense … . Additionally, they failed to establish, as a matter of law, that the particular setting of the defendant’s crime was an aggravating factor not taken into account under the Guidelines … . Finally, as the defendant contends, the court erred in sua sponte basing its decision to depart from the presumptive risk level on his parole violation occurring 10 years before he committed the sex offense and on two bench warrants, issued 14 and 18 years before he committed the sex offense. Those grounds for departure had never been raised, and the defendant was never afforded an opportunity to be heard on the issue of whether they were proper grounds for departure … . In any event, it was not established by clear and convincing evidence that those circumstances were relevant to the defendant’s risk of reoffense … . People v Manougian, 2015 NY Slip Op 07484, 2nd Dept 10-14-15

 

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Guilty Plea to Possession of a Weapon Charge in One County Precluded Prosecution for the Same Offense in Another County (Double Jeopardy)

The Fourth Department determined charges stemming from the possession of a weapon in two counties triggered the protection against double jeopardy:

Defendant was convicted, following a jury trial, of reckless endangerment in the first degree (Penal Law § 120.25) and criminal possession of a weapon in the second degree (§ 265.03 [3]). The charges arose from an incident in which defendant discharged a firearm into the bedroom window of an occupied, residential home in Oswego County during the early morning hours of March 5, 2012. Defendant was apprehended by the police later that day at a motel in Onondaga County, where a handgun was found in his vehicle. Prior to his trial in Oswego County Court, defendant was charged with and pleaded guilty to, in Onondaga County Court, criminal possession of a weapon in the second degree for the handgun recovered from his vehicle. * * *

It is well settled that a defendant has “the right not to be punished more than once for the same crime” … . “When successive prosecutions are involved, the guarantee serves a constitutional policy of finality for the defendant’s benefit . . . and protects the accused from attempts to secure additional punishment after a prior conviction and sentence” … . This case presents a prototypical instance of a constitutional double jeopardy violation inasmuch as defendant was prosecuted and convicted of a crime in Oswego County to which he had pleaded guilty in Onondaga County. In both instances, the charge was the same: criminal possession of a weapon in the second degree pursuant to Penal Law § 265.03 (3).

We reject the People’s contention that double jeopardy did not attach because defendant was convicted in Oswego County before he was sentenced on his guilty plea in Onondaga County. “[T]ermination of a criminal action by entry of a guilty plea constitutes a previous prosecution for double jeopardy purposes” … . People v Gardner, 2015 NY Slip Op 07363, 4th Dept 10-9-15

 

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Failure to Advise Non-Citizen Defendant of Deportation Consequences of Plea Required Remittal

The Fourth Department noted that the court’s failure to advise the non-citizen defendant of the deportation consequences of his guilty plea required that the case be remitted to afford the defendant the opportunity to move to vacate his plea:

We agree with defendant, a noncitizen, that County Court failed to advise him of the deportation consequences of his felony plea, as required by People v Peque (22 NY3d 168). We therefore hold the case, reserve decision and remit the matter to County Court to afford defendant the opportunity to move to vacate his plea based upon a showing that there is a “reasonable probability” that he would not have pleaded guilty had he known that he faced the risk of being deported as a result of the plea (id. at 176…). People v Traverso, 2015 NY Slip Op 07376, 4th Dept 10-9-15

 

Failure to Warn Defendant that Failure to Appear Would Result in a Harsher Sentence Required Vacation of the Harsher Sentence

The Fourth Department vacated defendant’s enhanced sentence because defendant was not warned that his failure to appear at sentencing would result in a harsher sentence. The matter was remitted for imposition of the bargained-for sentence or the opportunity to withdraw the plea:

“Although defendant failed to preserve his contention for our review by objecting to the enhanced sentence or by moving to withdraw his plea or to vacate the judgment of conviction …, we nevertheless exercise our power to review defendant’s contention as a matter of discretion in the interest of justice” … . We agree with defendant that the court erred in imposing an enhanced sentence inasmuch as it did not advise defendant at the time of his plea that “a harsher sentence than he bargained for could be imposed if [he] failed to appear at sentencing” … . We therefore modify the judgment by vacating the sentence, and we remit the matter to Supreme Court to impose the promised sentence or to afford defendant the opportunity to withdraw his plea … . People v Donald, 2015 NY Slip Op 07399, 4th Dept 10-9-15

 

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Allegations In Motion to Suppress Insufficient to Warrant Hearing

In concluding a suppression hearing (re: statements by the defendant) was properly denied, the Fourth Department explained the relevant analytical criteria:

It is well settled that ” [h]earings are not automatic or generally available for the asking by boilerplate allegations’ ” … . Here, “[t]he allegations in defendant’s moving papers, when considered in the context of the detailed information provided to defendant, were insufficient to create a factual dispute requiring such a hearing . . . Defendant . . . did not address the specific allegations set forth in the felony complaint” and the other discovery materials provided to him …, which included the relevant grand jury testimony of the witness. Thus, the court properly denied the motion without conducting a hearing based on the insufficiency of the allegations and, under the circumstances of this case … . People v Mitchell, 2015 NY Slip Op 07411, 4th Dept 10-9-15

 

Motion Papers Sufficient to Warrant a Probable Cause Hearing, Criteria Described

The Fourth Department, reversing Supreme Court, determined defendant’s motion papers were sufficient to warrant a probable cause hearing. No affidavit from the defendant is required. The Fourth Department explained the analytical criteria:

As the People correctly concede, the court erred in determining that defendant was not entitled to a hearing because his motion papers did not include an affidavit from defendant (see CPL 710.60 [1]…). The court also erred in determining that the factual assertions contained in defendant’s moving papers were insufficient to warrant a hearing.

In determining whether a hearing is required pursuant to CPL 710.60, “the sufficiency of defendant’s factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant’s access to information” … . Here, considering defendant’s limited access to information regarding the basis for the actions of the arresting officers, he “could do little more than dispute the circumstances surrounding his arrest . . . [D]efendant’s lack of access to information precluded more specific factual allegations and created factual disputes, the resolution of which required a hearing” … . People v Jones, 2015 NY Slip Op 07392, 4th Dept 10-9-15

 

Exclusion of Defendant’s Brother from the Courtroom Based Upon the Fear of a Testifying Witness Was Proper, Despite Lack of Express Findings by Trial Judge

The First Department determined the exclusion of a single spectator (defendant’s brother) during the testimony of a witness was proper, despite the absence of express findings by the trial judge. The witness expressed her fear of defendant’s brother. The court explained the analytical criteria:

The People established an overriding interest that warranted a courtroom closure that was limited to the exclusion of a single spectator during the testimony of a single witness … . Contrary to defendant’s arguments, the witness articulated a specific fear of testifying in the presence of defendant’s brother, and we find that this fear justified the limited closure … . The trial court was in the best position to determine whether the witness’ expression of fear rose to a level justifying the closure. We note that the court was aware of the brother’s approach to a different witness. Although “a timely objection . . . would have permitted the court to rectify the situation instantly by making express findings” …, defendant made no such objection, and thus did not preserve his complaint that the court failed to set forth express findings of fact to justify the exclusion of defendant’s brother. Accordingly, we decline to review this claim in the interest of justice. As an alternative holding, we find that the court’s ruling “implicitly adopted the People’s particularized showing” and was “specific enough that a reviewing court can determine whether the closure order was properly entered” .. . People v Williams, 2015 NY Slip Op 07335, 1st Dept 10-8-15

 

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Defendant’s Nodding In Agreement With a Statement Made by a Nontestifying Codefendant Properly Admitted as an Adoptive Admission

In finding that a prosecution witness was properly allowed to testify about a nontestifying codefendant’s statement and defendant’s nodding  in agreement. The defendant’s nodding was deemed an “adoptive admission:”

[Defendant’s] rights to due process and a fair trial, and his right of confrontation were not violated when Supreme Court allowed a prosecution witness to testify that defendant nodded in agreement to a statement made by a nontestifying codefendant. Defendant’s nonverbal response was admissible as an adoptive admission (… People v Lourido, 70 NY2d 428, 433), and the court properly instructed the jury in accordance with Lourido that the codefendant’s statements were being admitted solely to establish defendant’s “reaction . . . to that statement . . . [and] not for the truth of the statement” made by the codefendant … . People v Nafi, 2015 NY Slip Op 07132, 4th Dept 10-2-15

 

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Absence of Corroboration of Confession to Attempted Robbery Required Dismissal of Attempted Robbery Count—However Dismissal of the First Degree Murder and Felony Murder Counts, Both of Which Were Based Upon the Attempted Robbery, Was Not Required—The Death Itself Provided the Requisite Corroboration

The Fourth Department, in a detailed decision addressing several substantive issues not summarized here, found there was no proof of the attempted robbery count except defendant’s confession. The absence of corroboration required reversal of the attempted robbery count. However, with respect to the first degree murder and felony murder counts (for which attempted robbery was the underlying felony) the death itself provided sufficient corroboration:

“A person may not be convicted of any offense solely upon evidence of a confession or admission made by him [or her] without additional proof that the offense charged has been committed” (CPL 60.50…). With respect to the counts of murder in the first degree and felony murder, it is well settled that “CPL 60.50 does not require corroboration of defendant’s confession to the underlying predicate felony” to sustain a conviction of murder in the first degree or felony murder, when the charge is based on a murder committed in the course of and in furtherance of one of many enumerated felonies … . “The effect of the confession corroboration statute is to require proof of the corpus delicti” … . With felony murder and murder in the first degree, the corpus delicti is a death resulting from someone’s criminality, i.e., a death that did not occur by suicide, disease or accident … . The fact that the victim was found dead as the result of a gunshot wound is sufficient corroboration … .

The same analysis does not apply to the underlying felony itself. Where, as here, there is no corroboration of a defendant’s confession with respect to the underlying felony, that count of the indictment charging the defendant with the underlying felony must be dismissed … . People v Harper, 2015 NY Slip Op 07064, 4th Dept 10-2-15

 

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