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A Defendant’s Status as an Undocumented Alien Cannot Be the Sole Ground for Imposing Incarceration As Opposed to Probation

In a case of first impression, the Second Department, in a full-fledged opinion by Justice Dillon, determined that a defendant’s status as an undocumented alien cannot constitute the sole reason for a sentence of incarceration as opposed to probation. County Court reasoned that as soon as a sentence of probation was imposed upon an undocumented alien, the defendant would be in violation of probation by virtue of his/her undocumented status. Therefore, County Court concluded, a sentence of probation was not available to any undocumented alien. The Second Department disagreed, holding that a defendant’s status as an undocumented alien can be considered in determining the appropriate sentence, but it cannot be the sole ground for imposing a sentence of incarceration. To pre-determine that an undocumented alien is not eligible for probation violates due process and equal protection, constitutional rights which are afforded undocumented aliens:

… [W]e reach two conclusions. First, courts may appropriately consider a defendant’s undocumented immigration status in imposing criminal sentences. The decision to impose or not impose a sentence of probation may legitimately be affected by factors directly related to undocumented status. Those factors include, but are not necessarily limited to, the likelihood of the defendant’s deportation during the probationary period, the defendant’s history, if any, of repeated departures from and illegal reentries into the United States, the presence or absence of family in the United States, the defendant’s employment history, and the defendant’s legal employability. Second, it is impermissible for a sentencing court to refuse to consider a sentence of probation for an undocumented defendant solely on the basis of his or her immigration status. Doing so violates the Due Process and Equal Protection clauses of the Federal and New York constitutions by treating certain defendants differently from others based upon their undocumented presence in this state. In other words, a defendant’s undocumented immigration status may be a factor a court takes into account in determining whether to include probation as part of a sentence, but such status cannot be the sole factor a court relies upon in denying a probationary sentence and in imposing a term of imprisonment instead. People v Cesar, 2015 NY Slip Op 06252, 2nd Dept 7-22-15

 

Prosecutor’s Reasons for Challenging an Hispanic Juror Were Pretextual—New Trial Ordered

The Second Department determined the prosecutor’s proffered reason for challenging an Hispanic juror was pretextual and ordered a new trial. Two Hispanic jurors were challenged by the prosecutor. The prosecutor’s reason for challenging one of them was the juror’s alleged inability to understand questions. The Second Department determined there was no support for that reason in the record:

… [A] new trial is necessary because the prosecutor exercised one of her peremptory challenges in a discriminatory manner with respect to a Hispanic male prospective juror … . Under both state and federal law, the use of peremptory challenges in a racially discriminatory manner is prohibited … . Trial courts must follow a three-step protocol to determine whether a party has used its peremptory challenges in a racially discriminatory manner. First, the moving party contesting the peremptory challenges must allege sufficient facts to make a prima facie showing that the prospective jurors were challenged because of race … . Where the moving party makes such a prima facie showing, the burden shifts to the nonmoving party to offer a race-neutral reason for each of the disputed peremptory challenges … . If such reasons are offered, the burden shifts back to the moving party to demonstrate that the reasons, although facially neutral, are pretextual … . The third step requires the trial court to make an ultimate determination as to whether the proffered reasons are pretextual … . * * *

Contrary to the trial court’s determination, the facially race-neutral reason proffered by the prosecutor for exercising a peremptory challenge with respect to the Hispanic male prospective juror was pretextual. Although the prosecutor argued that this prospective juror had a difficult time understanding the trial court’s questions during voir dire, this claim is not borne out by the record. Rather, the record shows that the prospective juror was repeatedly asked the same question regarding his willingness to follow the law and assured the trial court more than once that he would follow the law as it was provided. While this prospective juror asked for one of the court’s questions to be repeated, and expressed that he did not understand compound questions when they were asked of him, never during the questioning by the trial court did he give a conflicting answer or state that he would not or could not follow the law. Indeed, any appearance of a lack of understanding on the part of this prospective juror is attributable to confusion caused by the manner in which the trial court intervened during the prosecutor’s questioning of the juror: while a question was pending before the juror, the court asked compound questions of him.

Moreover, the prosecutor’s failure to pursue questioning of this prospective juror, whom she purportedly believed could not follow the law, despite repeated assurances by the prospective juror to the contrary, also renders the basis for the challenge pretextual … . People v Fabregas, 2015 NY Slip Op 06253, 2nd Dept 7-22-15

 

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There Is No Legal or Constitutional Authority for a Pre-Execution Challenge to a Search Warrant—Facebook’s Attempt to Quash Search Warrants Seeking All the Information in 381 Subscribers’ Facebook Accounts Was Rejected

The First Department, in an extensive, full-fledged opinion by Justice Renwick, determined there was no statutory or constitutional authority for Facebook’s motion to quash 381 search warrants which sought all the data from the targets’ Facebook accounts and prohibited disclosure of the warrants to the targets. There is no authority allowing a pre-execution challenge to a search warrant. Facebook’s argument that their motion was analogous to a motion to quash a subpoena, the denial of which can be appealed, was rejected. Facebook’s argument that the bulk warrants were akin to subpoenas issued to Internet Service Providers, which can be challenged under the Federal Stored Communications Act (SCA), was rejected (after a full analysis):

We agree with Facebook that the bulk warrants at issue here are analogous to SCA section 2703(a) warrants to the extent they authorized the federal and state government to procure a warrant requiring a provider of electronic communication service to disclose electronic content in the provider’s electronic storage. However, contrary to Facebook’s allegations, 2703 subsection (d), which gives the ISP the right to object, applies only to court orders or subpoenas issued under subsections (b) or (c). The SCA specifically distinguishes these disclosure devices from warrants, which are governed by its subsection (a). While an order or subpoena obtained pursuant to (b) or (c) requires only that the government show “specific and articulable facts” that there are “reasonable grounds to believe” the information sought will be “relevant and material,” a warrant under subsection (a) requires the government to make the traditional and more stringent showing of “probable cause.” Here, a finding of probable cause was made by the reviewing judge, and thus the warrants are akin to SCA warrants, not SCA subpoenas or orders. Thus, Facebook’s argument that it has the right to contest the warrants based upon the SCA is contradicted by the express terms of the SCA. * * *

Our holding today does not mean that we do not appreciate Facebook’s concerns about the scope of the bulk warrants issued here or about the District Attorney’s alleged right to indefinitely retain the seized accounts of the uncharged Facebook users. Facebook users share more intimate personal information through their Facebook accounts than may be revealed through rummaging about one’s home. These bulk warrants demanded “all” communications in 24 broad categories from the 381 targeted accounts. Yet, of the 381 targeted Facebook user accounts only 62 were actually charged with any crime.

Judges, as guardians of our Constitution, play an indispensable role in protecting the rights and liberties of individuals entrenched in the Constitution. Charged with the indispensable responsibility of reviewing warrant applications, they protect the rights and interests of individuals by remaining mindful of the reasonableness embedded in the Fourth Amendment’s delicate balance. The procedural rules attendant to the Fourth Amendment’s warrant requirement both reasonably protect the innocent and permit investigation of suspected criminal conduct. A judge reviewing a warrant request must always balance the nature and quality of the intrusion on an individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. Further, this balance invokes carefully weighing the extent to which each level of intrusion in the execution of the warrant is needed. Each level of intrusion involves an implicit assertion by the government that the intrusion is “reasonable” to recover the evidence described in the warrant despite the compromise of the individual’s interests in privacy. Ultimately, to be fair and effective, the overall assessment of reasonableness requires the judge reviewing the warrant to carefully evaluate the need for each additional level of intrusion in the process of seizing evidence. 381 Search Warrants Directed to Facebook, Inc. v New York County Dist. Attorney’s Off., 2015 NY Slip Op 06201, 1st Dept 7-21-15

 

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In Responding to Defendant’s Criticisms of Defense Counsel’s Actions, Defense Counsel Merely Explained His Actions and Did Not Take a Position Adverse to His Client’s—Therefore the Defendant Was Not Entitled to Withdraw His Plea on the Ground that He Was Denied Effective Assistance of Counsel

In affirming defendant’s conviction by guilty plea, the First Department determined that defense counsel, in responding to allegations about his performance made by the defendant, did not take a position adverse to his client’s. Rather, counsel merely explained the reasons for his actions and did not voice any opinion about the validity of defendant’s pro se motions. Therefore the defendant was not entitled to withdraw his plea on that ground:

“It is well settled that a defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea” … . “When certain actions or inaction on the part of defense counsel is challenged on the motion, it may very well be necessary for defense counsel to address the matter when asked to by the court. When doing so, defense counsel should be afforded the opportunity to explain his performance with respect to the plea, but may not take a position on the motion that is adverse to the defendant. At that point, a conflict of interest arises, and the court must assign a new attorney to represent the defendant on the motion.” … . * * *

Counsel’s statement that defendant might not understand that he still retained certain residual rights to appeal despite the waiver, and that his concerns might be mitigated if the court explained that to him, was not adverse to defendant’s position. It merely conveyed that if defendant was informed that his waiver did not bar an appeal of all issues, including the voluntariness of the plea, it might affect his view of the waiver. Counsel’s factual statement that the waiver was a condition of the People’s plea offer, which reduced defendant’s sentence and made him eligible for parole at an earlier date, and that he did not believe that there was a basis for a CPL 30.30 motion because all but one of the adjournments since he had taken over the case had been on consent due to plea negotiations, did not go beyond a mere explanation of his performance … . Counsel did not deny that he advised defendant to agree to the waiver or that he refused to make a CPL 30.30 motion. Nor did he refute any specific factual allegation raised by defendant with respect thereto or affirmatively state his belief that defendant had no legal basis for withdrawing his plea. People v Maxwell, 2015 NY Slip Op 06199, 1st Dept 7-21-15

 

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Defense Counsel’s Failure to Investigate the Victim’s Medical Condition (Which Would Have Allowed More Effective Cross-Examination of the People’s Expert and the Victim), Failure to Object to Testimony Which May Have Been More Prejudicial than Probative (and which Clearly Required a Jury Instruction Limiting Its Use), and Failure to Object to Improper Comments Made by the Prosecutor, Deprived Defendant of Effective Assistance of Counsel

In a sexual abuse case based entirely on the victim’s testimony (alleging anal intercourse), the Third Department determined defense counsel’s failure to investigate the nature of the victim’s bleeding disorder (which could have called into question the prosecution’s expert’s opinion that victims of sexual abuse, like the victim here, often show no signs of injury), the failure to object to the testimony of the defendant’s spouse alleging his preference for anal intercourse (the prejudicial effect may well have outweighed the probative value—at the very least a limiting instruction should have been requested as to the jury’s limited use of such evidence), and the failure to object to improper comments made by the prosecutor in summation (appealing to jurors’ sympathy, exhorting the jurors to fight for the victim), required reversal and a new trial:

Had counsel sought to inform himself about the victim’s VWD [bleeding disorder] diagnosis, he likely would have become aware of medical experts such as Howard Snyder, a board-certified doctor of emergency medicine who submitted an affidavit in support of defendant’s postconviction motion. Snyder averred that “[t]he presence of VWD [in the victim] would have made the presence of bruising or bleeding during forceful, non-consensual anal intercourse more likely than in [a] patient without VWD.”Undoubtedly, expert testimony similar to Snyder’s would have done much to increase the significance of the SANE [sexual assault nurse examiner] report’s lack of physical findings and would have provided a powerful basis for cross-examination to counter the damaging effects of the SANE’s opinion testimony.

Counsel’s failings were magnified by the fact that the People’s only direct evidence of defendant’s guilt was the victim’s testimony, making counsel’s efforts to undermine her credibility of paramount importance. Indeed, there were no other witnesses to the alleged sexual assaults and no DNA evidence was recovered. In similar situations, the Second Circuit, applying New York law, has repeatedly held that “when a defendant is accused of sexually abusing a child and the evidence is such that the case will turn on accepting one party’s word over the other’s, the need for defense counsel to, at a minimum, consult with an expert to become educated about the vagaries of abuse indicia is critical. The importance of consultation and pre-trial investigation is heightened where, as here, the physical evidence is less than conclusive and open to interpretation” (Eze v Senkowski, 321 F3d 110, 129 [2d Cir 2003] …). Thus, the record establishes that, without any justification, counsel prejudiced defendant by “s[itting] on his hands, confident that his client would be acquitted” rather than “consult[ing with] and be[ing] prepared to call an expert” … , whose testimony then would have been “available [to] assist[] the jury in its determination” … .

Counsel’s conduct further fell below our standard of meaningful representation because he failed to object to, and request a limiting instruction to guide the jury in assessing, the testimony of defendant’s former spouse regarding defendant’s sexual preferences. Counsel sat mute while the witness testified that, upon reading the victim’s statement to police, it struck her that it contained details “only someone who had been intimate with [defendant] would know,” including what she then proceeded to describe as defendant’s preference for anal intercourse during their consensual sexual relationship [. We do not think that counsel’s failure to object to this testimony can be excused on the ground that such an objection had “little or no chance of success” … . “Not all relevant evidence is admissible as of right. . . . Even where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side” … .

In our view, a legitimate question exists as to whether the prejudicial effect of the former spouse’s testimony regarding defendant’s sexual preferences substantially outweighed its probative value, especially considering that she testified that she and defendant had not been sexually active for several years prior to the alleged assaults on the victim. Supreme Court should have had the opportunity to consider this question and make an appropriate ruling in the exercise of its discretion. The court would have done so, but for counsel’s inexplicable failure to object. In the event that the court had determined this testimony to be admissible, counsel could then have requested a limiting instruction, as the lack thereof would “permit[] the jurors to perhaps consider [the former spouse’s statements] as proof of defendant’s propensity” to engage in the sexual acts charged here … . * * *

Finally, we note with disapproval certain remarks made by the prosecutor during summation, to which counsel did not object. The prosecutor improperly attempted to appeal to the jury’s sympathy by asking the jurors to consider how they would have felt if they “were in [the victim’s] shoes” … . The prosecutor also exhorted the jurors to advocate for the victim during deliberations by using the phrase “you fight for her” … . While counsel’s failure to object to these remarks does not, in and of itself, amount to ineffective assistance of counsel, it further illustrates counsel’s representation, the cumulative effect of which deprived defendant of meaningful representation, especially “where, as here, the determination of guilt . . . hinged on sharp issues of credibility” … . People v Cassala, 2015 NY Slip Op 06176, 3rd Dept 7-16-15

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Concurrent Inclusory Counts Dismissed and Sentences Vacated—Defense Counsel’s Failure to Request that the Greater and Lesser Counts Be Submitted to the Jury in the Alternative, Although a Clear-Cut Error, Did Not Deprive the Defendant of Meaningful Representation

The Third Department determined defendant was entitled to dismissal of the inclusory concurrent counts and the vacation of the sentences imposed thereon, but was not entitled to reversal based upon defense counsel’s failure to request the that the inclusory concurrent counts be presented to the jury in the alternative (conviction on the greater count is deemed a dismissal of every lesser count).  Although the omission was clear-cut error on defense counsel’s part, the error did not deprive defendant of effective assistance:

…. [T]he two counts of criminal possession of a controlled substance in the seventh degree are inclusory concurrent counts of criminal possession of a controlled substance in the third degree … . “When inclusory counts are submitted for consideration, they must be submitted in the alternative since a conviction on the greater count is deemed a dismissal of every lesser count” … . Therefore, defendant’s misdemeanor convictions of criminal possession of a controlled substance in the seventh degree must be reversed and the concurrent, one-year sentences vacated … .

We are not persuaded, however, that defense counsel’s failure to request an alternative charge on these counts “elevates this case to the level of one of those rare cases where a single lapse can constitute ineffective assistance of counsel” … . Although counsel erred on a clear-cut issue …, such an error must be viewed in the context of the entire representation, particularly in light of the other charges that defendant faced. Most importantly here, counsel’s error appears to arise from his failure to properly consider the misdemeanor charges of criminal possession of a controlled substance in the seventh degree. While defendant was certainly entitled to representation on those charges, defendant had previously been convicted of a felony drug offense and faced felony charges of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. Given the vastly disparate potential outcomes related to the felony and misdemeanor offenses with which defendant was charged, particularly in light of his prior felony drug conviction …, and absent any proof that counsel’s failure was greater than that of failing to properly attend to the misdemeanor charges, we do not find that defendant was deprived of meaningful representation … . People v Vanguilder, 2015 NY Slip Op 06175, 3rd Dept 7-16-15

 

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Failure to Instruct the Jury on the Justification Defense Required Reversal and a New Trial/Referring to the Defendant as a Liar, Vouching for the People’s Case, and Asking the Jury to Draw Inferences Not Based Upon the Evidence Constitutes Prosecutorial Misconduct

The Second Department determined defendant was entitled to a new trial because his request for a jury instruction on the justification defense should not have been denied.  There was evidence the victim was in defendant’s home and was attempting to beat and rob the defendant at the time the victim was stabbed. That evidence was sufficient to require submission of the justification defense to the jury. Although the error was not preserved for appeal, the Second Department also noted that the prosecutor improperly characterized the defendant as a liar, vouched for the strength of the People’s case, and asked the jury to draw inferences which were not based upon evidence. With respect to the justification defense, the court explained:

” A trial court must charge the jury with respect to the defense of justification whenever, viewing the record in the light most favorable to the defendant, there is any reasonable view of the evidence which would permit the jury to conclude that the defendant’s conduct was justified'” … . Here, there was a reasonable view of the evidence to support the defendant’s request for a justification charge pursuant to Penal Law § 35.15(2)(b). Viewing the evidence in the light most favorable to the defendant, the jury reasonably could have concluded that the defendant reasonably believed that the use of deadly force was necessary to prevent the victim from robbing him (see Penal Law § 35.15[2][b]…). Contrary to the People’s contention, it would not have been irrational for the jury to credit the defendant’s account of the incident … . Accordingly, the Supreme Court erred in denying the defendant’s request for a justification charge pursuant to Penal Law § 35.15(2)(b). The error in failing to give the requested justification charge was not harmless, as it cannot be said that there was no significant probability that the verdict would have been different absent this error … . People v Irving, 2015 NY Slip Op 06167, 2nd Dept 7-15-15

 

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Failure to Pay Wages In Violation of Labor Law 191 (1)(a) is a Class A Misdemeanor—Therefore Defendant Was Properly Sentenced to a Period of Incarceration Followed by a Period of Probation—The Statute Authorizes Incarceration or a Fine—Because the Defendant Was Incarcerated, the Fine Must Be Vacated

The Second Department determined defendant was properly incarcerated for 60 days and sentenced to a period of probation for failure to pay wages in violation of Labor Law 191(1)(a), which in a Class A misdemeanor.  However, the statute allows for incarceration or a fine.  Because defendant had served 60 days, the imposition of the $5000 fine was vacated:

Contrary to the defendant’s contention, the County Court was permitted to sentence him to a period of probation. A conviction of failure to pay wages in violation of Labor Law § 191(1)(a), which is defined as a misdemeanor punishable by a fine or imprisonment, is a class A misdemeanor (Labor Law § 198-a[1]; see Penal Law § 55.10[2][b]) and, therefore, a crime (see Penal Law § 10.00[6]). Thus, a court may sentence a defendant to a period of probation for the crime of failure to pay wages (see Penal Law § 65.00[1][a]), and the imposition of a period of probation in addition to a 60-day term of incarceration was authorized here (see Penal Law § 60.01[2][d]…).

However, the County Court improperly imposed a $5,000 fine on the defendant. By its terms, Labor Law § 198-a(1) provides for punishment by a fine or imprisonment, but not both a fine and imprisonment, for a first conviction. As the defendant has already served his 60-day term of incarceration, the provision of the sentence imposing a $5,000 fine on the defendant must be vacated. People v DiSalvo, 2015 NY Slip Op 06164, 2nd Dept 7-15-15

 

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Pre-“Padilla” Statement by Counsel that Defendant’s Plea to an “Aggravated Felony” Would Not Result in Deportation Justified a Hearing on Defendant’s Motion to Vacate Her Conviction

The Third Department determined defendant was entitled to a hearing on her motion to vacate her conviction.  Defendant alleged she was erroneously told by her attorney (pre “Padilla”) her conviction (for an “aggravated felony”) would not cause her to be deported:

… [D]efendant’s … claim that counsel affirmatively misinformed her about the plea’s deportation consequences is not dependent upon Padilla; rather, it rests upon established law at the time of her plea that defense counsel’s affirmative misrepresentation to a noncitizen regarding the deportation consequences of a contemplated guilty plea constitutes deficient performance so as to satisfy the first prong of an ineffective assistance of counsel claim … .

In her affidavit in support of the motion, defendant alleged that her counsel advised her that, although immigration authorities would be notified about her guilty plea, “he did not think anything further would happen.” In fact, the crime of rape in the third degree constitutes an “aggravated felony” that results in mandatory deportation (see 8 USC § 1101 [a] [43] [a]; § 1227 [a] [2] [A] [iii]; § 1229b [a] [3]…). Defendant further averred that, had counsel informed her that she was certain to be deported as a result of her guilty plea, she would not have pleaded guilty and would have gone to trial. As defendant sufficiently alleged that counsel provided incorrect information concerning the deportation consequences that would result from her guilty plea and that she was prejudiced as a result thereof, she was entitled to a hearing on this aspect of her CPL 440.10 motion … . People v Ricketts-simpson, 2015 NY Slip Op 05975, 3rd Dept 7-9-15

 

Judge’s Flawed Question During Plea Colloquy Required Vacation of the Plea

The Third Department determined County Court’s equating a lack of consent (re: sexual abuse) with the “forcible compulsion” element of the offense required vacation of the plea:

In response to the court’s questioning, defendant admitted that he had subjected the victim to sexual contact by “grabb[ing] her breasts.” County Court then inquired of defendant, “did you do that by forcible compulsion, in other words, without her consent or without her authority?” Forcible compulsion, however, is defined as compelling another “by either [] use of physical force; or [] a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person” (Penal Law § 130.00 [8]). Defendant answered in the affirmative, and County Court accepted his guilty plea without conducting any further inquiry into the facts or readdressing the element of forcible compulsion.

By equating forcible compulsion with lack of consent, County Court misdefined an essential element of the crime to which defendant was pleading. While defendant was not required to recite facts establishing every element of the crime … , we cannot countenance a conviction that rests upon a misconception of the key element of forcible compulsion … . Because the record fails to establish that defendant understood the nature of the charge or that his guilty plea was knowingly and intelligently entered, his plea must be vacated and the matter remitted to County Court … . People v Marrero, 2015 NY Slip Op 05974, 3rd Dept 7-9-15

 

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