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Broken Sentence Promise Required Vacatur of the Guilty Plea

The Third Department determined defendant’s guilty plea was induced by County Court’s promise to impose a sentence of shock incarceration. At sentencing, County Court refused to order shock incarceration. Because the plea was induced by the broken promise, the plea was not knowing and voluntary. The fact that neither the People nor County Court could guarantee defendant’s participation in the shock incarceration program was deemed irrelevant:

We start with the principle that a trial court always “retains discretion in fixing an appropriate sentence up until the time of sentencing” … . However, when the court wishes to depart from a promised sentence, it must either honor the promise or give the defendant the opportunity to withdraw the guilty plea … . Accordingly, “[a] guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” … .

Here, prior to defendant’s guilty plea, County Court indicated its belief that defendant was eligible for shock incarceration and then unequivocally promised that it “would order him into it.” When defendant specifically asked if shock incarceration was guaranteed, the court stated that it “would order it absolutely” and that a failure on the part of prison authorities to admit him would “defy an order of the [c]ourt.” Furthermore, defense counsel stated that he was recommending that defendant accept the plea agreement “especially with a shock commitment.” Thus, regardless of the fact that “neither County Court nor the People possessed the authority to guarantee [defendant’s] participation” in the shock incarceration program … , the record reflects that defendant, in accepting the plea, relied upon County Court’s promise to do exactly that. Consequently, we find that defendant’s plea was not knowing, voluntary and intelligent, and that, because County Court’s promise to defendant cannot be honored as a matter of law, he is entitled to vacatur of his guilty plea … . People v Muhammad, 2015 NY Slip Op 07702, 3rd Dept 10-22-15

 

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“For Cause” Challenge to Juror Who Socialized with District Attorney Should Have Been Granted—Concept of “Implied Bias” Explained

The Third Department determined a new trial was necessary because of the denial of a “for cause” challenge to a juror who socialized with the district attorney (the case was tried by an assistant district attorney). The court explained the concept of “implied bias” which is not easily “cured:”

A statement by a potential juror suggesting a possible bias can be cured, and the juror not excused, if the juror “provide[s] ‘unequivocal assurance that [he or she] can set aside any bias and render an impartial verdict based on the evidence'” … . However, where, as here, the challenge for cause involves a juror’s relationship with a trial participant, a so-called “implied bias” may be implicated which “requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect [his or] her ability to be fair and impartial” … . Of course, “[n]ot all relationships . . . require disqualification . . . [and] [t]he frequency of contact and nature of the parties’ relationship are to be considered in determining whether disqualification is necessary” … . As a practical matter, “the trial court should lean toward disqualifying a prospective juror of dubious impartiality” … .

Here, during voir dire, juror no. 3372 stated that her family was “good friends” with the family of the District Attorney. She added that she socialized with the District Attorney, including having him and his wife as dinner guests at her home, and she and her husband had dined as guests at the District Attorney’s home. County Court nonetheless denied defendant’s challenge for cause as to such juror. People v Bedard, 2015 NY Slip Op 07703, 3rd Dept 10-22-15

 

Amendment of Decision and Order Dismissing Indictment Was Proper

The Second Department, over an extensive dissent, determined Supreme Court properly amended a decision and order which initially granted defendant’s motion to dismiss the indictment on “speedy trial” grounds. The amended decision and order, which was issued a day after the initial decision and order, denied the motion with respect to three counts:

A court possesses “inherent authority to rectify a prior error in dismissing an indictment” … , and “where there is a clearly erroneous dismissal of an indictment or count thereof, it is unreasonable to foreclose a court from reconsidering its previous determination” …, even in the absence of a formal motion for leave to reargue by the People … . Furthermore, under the facts of this case, there was no constitutional or statutory impediment to the court’s power to promptly modify its prior determination to dismiss the indictment and to thereby correct the previous error … .

Here, the Supreme Court recognized the error only one day after issuing the initial decision and order, well within the time period during which, for example, a motion for leave to reargue could have been made and before the People even had a reasonable opportunity to make such a motion. Moreover, while any present challenge to the court’s determination of the statutory speedy trial issue in the amended decision and order was forfeited by the defendant’s knowing, voluntary, and intelligent plea of guilty …, we note, in any event, that the error in initially dismissing counts seven, eight, and nine based on an alleged statutory speedy trial violation was clearly apparent from the documents in the court file. Accordingly, the prompt issuance of the amended decision and order correcting the prior mistake in this case was not improper or jurisdictionally defective. People v Francis, 2015 NY Slip Op 07679, 2nd Dept 10-21-15

 

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People v Peque, Which Requires that a Defendant Be Informed of the Immigration Consequences of a Guilty Plea, Is Not Applied Retroactively

The Second Department determined that People v Peque (22 NY3d 168), which requires that defendant’s be informed of the immigration consequences of a guilty plea, would not be applied retroactively:

The defendant’s conviction became final prior to People v Peque (22 NY3d 168), in which the Court of Appeals held that courts were required to advise defendants of the deportation consequences of a plea of guilty. The defendant contends that Peque should be applied retroactively. This contention is without merit.

Previously, in Padilla v Kentucky (559 US 356), the United States Supreme Court held that defense counsel were under a duty to advise noncitizen defendants of the deportation risks of their pleas of guilty. It is now settled that the Padilla decision does not apply retroactively in state court postconviction proceedings … . For the same reasons, we decline to give retroactive application to Peque, which, like Padilla, concerns the immigration consequences of a plea of guilty, and “rather than going to the heart of a reliable determination of guilt or innocence, instead concentrates on the defendant’s appreciation of the immigration consequences that may flow from an otherwise proper plea allocution” … . People v Pena, 2015 NY Slip Op 07685, 2nd Dept 10-21-15

 

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Jury Should Have Been Instructed on Intoxication Where an Element of Some of the Charged Offenses Could Have Been Negated by Defendant’s Intoxication

The Second Department determined defendant’s conviction on some of charged offenses must be reversed because the trial judge erroneously refused defendant’s request for a charge on intoxication. There was sufficient evidence to support the conclusion defendant was highly intoxicated when he broke into two apartments from which nothing was stolen, which may have negated the intent element of some of the charges:

Although intoxication is not a defense to a criminal offense, evidence of intoxication “may be offered by the defendant whenever it is relevant to negative an element of the crime charged” (Penal Law § 15.25). An intoxication charge should be issued when, viewing the evidence in a light most favorable to the defendant, there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to an element on that basis … . The evidence of intoxication in this case met this ” relatively low threshold'” … . Contrary to the People’s contention, the error was not harmless with respect to the defendant’s convictions of burglary in the second degree and criminal mischief in the fourth degree. In order for an error to be harmless, among other things, the proof of the defendant’s guilt must be overwhelming … . Here, the proof of the defendant’s intent as to the crimes of burglary in the second degree and criminal mischief in the fourth degree was not overwhelming … . People v Velez, 2015 NY Slip Op 07691, 2nd Dept 10-21-15

 

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Sexual Conduct That Does Not Rise to the Level of a SORA Sex Offense May Be Considered Under the “Number of Victims” Risk Factor

The Court of Appeals determined that the “number of victims” risk factor (risk factor 3) under the Sex Offender Registration Act (SORA) properly included “sexual conduct” that did not amount to SORA level sex offenses and which involved “webcam chats:”

Given that the Guidelines do not mention a SORA level offense in risk factor 3, but instead address the more general term, “sexual conduct,” we agree with the People that the conduct does not have to amount to a SORA level offense in order to be considered. Furthermore, the child can still be a victim under risk factor 3 even though the defendant and the child were not in the same room, but were communicating through a webcam … . People v Izzo, 2015 NY Slip Op 07576, CtApp 10-20-15

 

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Lobby of Public Housing Unit Is Not “Open to the Public” Within the Meaning of the Law of Trespass

The Court of Appeals determined the misdemeanor information charging defendant with criminal trespass second degree was sufficient. The defendant was in the lobby of a public housing unit where a “no trespassing” sign was posted. When asked, the defendant said he did not reside in the building and could not identify any resident who had invited him. The court explained the elements of all three degrees of trespass and found that the lobby of a public housing unit is not “open to the public” within the meaning of the law of trespass:

Contrary to defendant’s argument, the word “public” in the phrase “public housing” refers to ownership, not access. It is not the case that all property owned by the government is “open to the public.” Certain areas of publicly-owned buildings may be restricted from public use by a locked door or a front desk, much like the common areas of privately-owned buildings … . The presence of a “No Trespassing” sign may also indicate that the common area of a publicly-owned building is not open to the public. Accordingly, we agree with the Appellate Term that it is possible for a person to enter or remain in a publicly-owned dwelling without license or privilege to do so. People v Barnes, 2015 NY Slip Op 07577, CtApp 10-20-15

 

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Judicial Notice and Collateral Estoppel Re: Philippine Law and a Philippine Court Order Improperly Applied—Related Conspiracy Conviction Vacated/Emails and Newspaper Articles, Although Hearsay, Properly Admitted

The First Department, in a prosecution stemming from the failure to pay tax on the sale of a painting, determined Supreme Court improperly took judicial notice of the law of the Philippines and improperly applied the doctrine of collateral estoppel (based upon a Philippine court order). The painting once belonged to Imelda Marcos when she was the First Lady of the Philippines. Under Philippine law, the painting allegedly should have been forfeited to the people of the Philippines. Defendant (with others) completed the sale of the painting for $32 million. The First Department vacated the conspiracy conviction because of the misapplication of Philippine law, but affirmed the crIminal tax fraud and “filing a false instrument” convictions. In addition to discussing the misapplication of Philippine law and the doctrine of collateral estoppel, the First Department held that emails, although hearsay, were properly admitted to show conduct (not for the truth of the content) and newspaper articles, although hearsay, were properly admitted to show defendant knew the Philippine government was trying to recover the painting (state-of-mind exception):

The trial court erred in reading or paraphrasing approximately eight sentences from an order of the Supreme Court of the Republic of the Philippines in a proceeding commenced by the Republic against Imelda Marcos and others, where the Philippine court granted summary judgment in favor of the petition, and ordered that more than $658 million held mostly in Swiss bank accounts be forfeited to the Republic. Only one sentence read by the court to the jury purported to state the law of the Philippines, namely Philippine Republic Act No. 1379, which provides that any property acquired by a public official during his or her term of public service that is “manifestly out of proportion” to the official’s public salary and any other lawful income “shall be presumed prima facie to have been unlawfully acquired.” The remaining portions of the opinion read to the jury consisted of fact findings, and thus were not proper subjects of judicial notice pursuant to CPLR 4511(b) … .

The court implicitly applied collateral estoppel, which was inapplicable even under the standards governing civil cases, since defendant was not a party to the Philippine case and had no opportunity to litigate the issues therein; moreover, collateral estoppel should be applied with more caution in criminal cases than in civil … . The court further erred in paraphrasing the opinion without clarifying the rebuttable nature of the presumption under the Philippines law, and that error was compounded by the court’s ruling precluding defense counsel from addressing that point in summation. …

The court properly admitted emails exchanged between two of defendant’s alleged coconspirators, her nephews, under the coconspirator exception to the hearsay rule. Contrary to defendant’s argument, the People made a prima facie showing of conspiracy “without recourse to the declarations sought to be introduced” … . There was testimony indicating that one of defendant’s nephews extensively participated in the painting sale at issue, and defendant sent $100,000 of the proceeds to him. Defendant also sent $5 million of the proceeds to the other nephew. Although defendant notes that the court relied in part on the emails at issue, the messages were properly considered to demonstrate the nephews’ conduct, such as offering or arranging to offer certain prices and forwarding photographs of paintings to potential buyers, rather than for the truth of the messages … .

Under the state-of-mind exception to the hearsay rule …, the court properly admitted news articles and other documents, recovered in a search of defendant’s home, concerning the Philippine government’s efforts to recover artworks allegedly misappropriated by the Marcos administration. The circumstances warranted a reasonable inference that defendant was aware of these documents and their contents … , establishing her motive to conceal the sale of a painting allegedly given to her by the former First Lady. Thus, the evidence tended to rebut the defense argument that defendant’s failure to report her income from the sale on her tax returns was not necessarily intentional. People v Bautista, 2015 NY Slip Op 07589, 1st Dept 10-20-15

 

Conviction Based Upon Plea Where Defendant Was Not Advised of the Period of Postrelease Supervision Is Unconstitutional for Predicate Felony Purposes—Catu Applied Retroactively

The First Department determined a 2002 conviction based upon a (pre-Catu) plea during which defendant was not advised of the period of postrelease supervision is unconstitutional for predicate felony purposes:

CPL 400.15(7)(b) provides: “A previous conviction . . . which was obtained in violation of the rights of the defendant under the applicable provisions of the constitution of the United States must not be counted in determining whether the defendant has been subjected to a predicate felony conviction” … . Because a conviction obtained in violation of Catu implicates rights under the federal Constitution as well as the state constitution (see Catu, 4 NY3d at 245 …), the court properly granted defendant’s CPL 440.20 motion and vacated his sentence as a second violent felony offender on the ground that his 2002 conviction could not be counted as a predicate felony under CPL 400.15(7)(b).

The underlying conviction preceded the Catu decision. However, contrary to the People’s contention, we find that the rule of law announced in Catu applies retroactively to pre-Catu convictions … . People v Smith, 2015 NY Slip Op 07565, 1st Dept 10-15-15

 

Allegations Describing a “Gravity Knife” in Misdemeanor Complaint Were Sufficient

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined the misdemeanor complaint sufficiently alleged the defendant possessed a “gravity knife:”

Defendant argues that an accusatory instrument alleging possession of a gravity knife must expressly state that the knife locks by means of a device. We disagree. By stating that a knife, once opened, “locks automatically in place,” an accusatory instrument conveys to a defendant that his knife was observed (1) to lock in an open position, rather than merely having a bias towards remaining open, and (2) to lock by means of a built-in device, rather than manually. A mechanism that locks itself by means of such a device is naturally described as locking “automatically.” Indeed, many New York cases have treated locking “by means of a . . . device” (Penal Law § 265.00 as synonymous with “automatically” locking for these purposes … . Moreover, because of the use of the generic term “device” in the statute, there can be no requirement that an arresting officer specify any particular kind of mechanism on the knife that causes it to lock in place. People v Sans, 2015 NY Slip Op 07529, CtApp 10-15-15

 

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