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Defendant Would Not Admit to the Commission of Certain Elements of the Offense to Which He Pled Guilty—Vacation of Plea as Involuntary Was Required, Despite Lack of Preservation and a Waiver of Appeal

The Third Department determined defendant’s guilty plea must be vacated, despite a failure to preserve the error and a waiver of appeal. During the plea allocution, defendant denied elements of the offense to which he was pleading guilty (strangulation in the second degree). Defendant denied that the victim experienced a loss of consciousness or any injury, and denied he had the intent to impede the breathing of the victim.  The guilty plea, therefore, was not knowing, intelligent and voluntary (constituting an exception to the “preservation of error” requirement):

Although defendant’s challenge to the voluntariness of his plea survives his uncontested waiver of the right to appeal …, it is unpreserved for our review in the absence of an appropriate postallocution motion … . Upon reviewing the record, however, we are persuaded that the narrow exception to the preservation requirement has been triggered here, as defendant made numerous statements during the course of the plea colloquy that negated essential elements of the crime, thereby calling into question the voluntariness of his plea … . * * *

Simply put, defendant’s responses to the questions posed during the plea colloquy negated more than one element of the charged crime, thereby casting doubt upon his guilt. Inasmuch as further inquiry by County Court neither resolved that doubt nor otherwise established that the resulting plea was knowing, intelligent and voluntary … , it should not have been accepted by the court and must now be vacated … . People v Mcmillan, 2015 NY Slip Op 04680, 3rd Dept 6-4-15

 

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To Succeed In a Legal Malpractice Action Stemming from Representation in a Criminal Matter, the Plaintiff Must Have a Colorable Claim of Actual Innocence—Elements of Legal Malpractice in this Context Explained

The Second Department determined defendant-attorney’s motion for summary judgment dismissing the legal malpractice complaint should have been granted.  Plaintiff, when represented by defendant-attorney, was convicted of sex offenses. The conviction was overturned on “ineffective assistance of counsel” grounds.  Plaintiff was acquitted upon retrial. In the legal malpractice action, the plaintiff was unable to prove the element of causation.  Defendant-attorney demonstrated plaintiff’s conviction was not due solely to defendant-attorney’s conduct, but was based in part on plaintiff’s “guilt,” in that her children provided graphic testimony alleging sexual abuse. To succeed in a legal malpractice action stemming from a criminal matter, the plaintiff must at least have a colorable claim of actual innocence.  In addition, the nonpecuniary damages sought by the plaintiff (psychological injury due to her incarceration) are not recoverable in a legal malpractice action.  The Second Department explained the elements of legal malpractice in this context (stemming from representation in a criminal case):

To recover damages for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages … . Even where a plaintiff establishes that his or her attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by members of the legal profession, the plaintiff must still demonstrate causation … . “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” … . In the civil context, this Court has held that a plaintiff in a legal malpractice action “need prove only that the defendant-attorney’s negligence was a proximate cause of damages” … . However, in a legal malpractice action such as this one, arising from representation in a criminal matter, the “plaintiff must have at least a colorable claim of actual innocence” …, and the plaintiff ultimately bears the unique burden to plead and prove that his or her “conviction was due to the attorney’s actions alone and not due to some consequence of his [or her] guilt” … . ” To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements'” … . Dawson v Schoenberg, 2015 NY Slip Op 04603, 2nd Dept 6-3-15

 

Cumulative Effect of Several “Suggestive” Factors Rendered the Show-Up Identification Inadmissible

The First Department, in a full-fledged opinion by Justice Gische, over a dissent, determined the show-up identification of the defendants was unduly suggestive and should have been suppressed. While none of the “suggestive” factors alone would have been sufficient to invalidate the identification, the cumulative effect of all the factors rendered the identification inadmissible. The defendants were handcuffed and standing together in a well-lit garage, surrounded by police officers.  The driver of the police car carrying the complainant, who had been assaulted an hour before by “three or four black teens,” shown the car’s headlights and “takedown” lights on the defendants. The defendants, none of whom were “teens,” and one of whom was light-skinned, were covered in soot. The complainant looked at the defendants through the police car’s mesh divider and windshield.  In addition to noting there were no “exigent circumstances” mandating the show-up procedure, the court described the factors which cumulatively rendered the show-up inadmissble at trial as follows:

Here, the three suspects were standing side by side after the complainant had described her attack by multiple attackers. Defendants were flanked by as many as eight officers and, apart from the complainant, they were the only civilians present. Defendants were visibly restrained. This was obvious, not only from the fact that their hands were behind their backs, but also from the fact that defendant Santiago, who had visible physical injuries to his face indicative of a recent scuffle, was being physically restrained by one of the officers as the complainant made her identification. Defendants were covered in soot, such that it affected their appearance, particularly as to skin color. Previously, the complainant had described her assailants’ “black” skin color as a prominent identifying feature, along with their ages. As the complainant was driven from the precinct to the location of the showup identification, she was told that she would be looking at people, and that she should tell the officers if she had seen them before. When defendants were shown to the complainant, they were illuminated by the patrol car’s headlights and takedown flood lights, even though the garage lighting itself was good.

We recognize that some of these factors, either alone or even in combination do not necessarily make a showup identification unduly suggestive. A showup identification may be acceptable, even where a defendant is handcuffed and guarded by police officers when shown to the complainant … . Nor is the fact that remarks are made to a complainant before being taken to a lineup itself a basis for a prohibited showup identification … . This is because a person of ordinary intelligence would realize that the police are showing them someone suspected of having committed a crime … . Even shining lights on a suspect is not by itself unduly suggestive … . It is the cumulative effect of what otherwise might be individually permissible that makes this particular showup identification unduly suggestive. The showup was clearly beyond the high water mark set forth by the Court of Appeals… . People v Cruz, 2015 NY Slip Op 04597, 1st Dept 6-2-15

 

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“Preamble” Read to Defendant Before the Miranda Warnings Neutralized the Effect of the Warnings—Defendant’s Statement Should Have Been Suppressed

The Second Department determined defendant’s suppression motion should have been granted because the “preamble” read to him before he waived his right to remain silent neutralized the effect of the Miranda warnings. “Before the defendant was read his Miranda rights, the detective investigator said to him (1) “if you agree to speak with us, you may, if you wish, explain what you did and what occurred at that date, time, and place,” (2) “[i]f . . . you have an alibi . . . and you want to tell us where you were, we will ask that you please give us as much information as you can, including the names of any people you were with,” and (3) “[i]f you agree to speak to us and your version of the events of that day differs from what we have heard, you may, if you so choose, tell us your story.” Thus, a clear implication was conveyed to the defendant that he ought to speak to the detective investigator and the assistant district attorney present at the interview in order to set forth his version of events so that they could be investigated. As such, the preamble here … rendered the subsequent Miranda warnings inadequate and ineffective in advising the defendant of his rights …”. People v Rivera, 2015 NY Slip Op 04517, 2nd Dept 5-27-15

 

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Juvenile Delinquency Adjudication Should Not Have Been Considered in SORA Risk Assessment—Criteria for an Upward Departure Explained

The Second Department determined defendant’s juvenile delinquency adjudication should not have been considered in determining the defendant’s risk level. The court explained the proper procedure for considering an upward departure: … “[T]he County Court upwardly departed without following the required three analytical steps of determining, first, whether an aggravating factor exists as a matter of law, second, whether the People have adduced clear and convincing evidence of the facts in support of that aggravating factor, and third, whether, in the court’s discretion, the totality of the circumstances warrant the upward departure to avoid an under-assessment of the defendant’s dangerousness and risk of sexual recidivism …”. People v Ruland,  2015 NY Slip Op 04464, 2nd Dept 5-27-15

 

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Upward Departure Proper In Light of Felony Conviction Not Considered in the Risk Assessment–Criteria for Upward Departure Explained In Some Detail

The Second Department determined County Court properly departed (upward) from the presumptive risk level based upon a felony conviction which pre-dated the sexual offenses considered in the risk assessment. The Second Department explained in some detail the criteria for an upward departure:

A court is permitted to depart from the presumptive risk level if “special circumstances” warrant departure (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). An upward departure is permitted only if the court concludes “that there exists an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (id. at 4…). In determining whether an upward departure is permissible and, if permissible, appropriate, a SORA court must engage in a multi-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 existence of that aggravating 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 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 … . People v Williams, 2015 NY Slip Op 04465, 2nd Dept 5-27-15

 

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Promissory Note Reflecting a Loan to a Limited Liability Company Was Criminally Usurious As Well As Void Under the General Obligations Law—Provision Purporting to Reduce the Interest Rate to a Non-Usurious Rate If the Original Rate Were Found to be Usurious Did Not Save the Note

The Second Department determined a promissory note imposing an annual interest rate of more than 25% (60% here) was criminally usurious (Penal Law 190.40) and could not be saved by a provision purporting to reduce the interest rate to a non-usurious rate if the original rate were found to be usurious. The court noted that, although a limited liability company (the defendant here) cannot assert the defense of civil usury, a limited liability company can assert the defense of criminal usury.  In addition, the note was void under General Obligations Law 5-511 because the interest rate exceeded 16%. Fred Schutzman Co. v Park Slope Advanced Med., PLLC, 2015 NY Slip Op 04447, 2nd Dept 5-27-15

 

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Medical Examiner’s Testimony Did Not Rule Out the Possibility that Someone Other than the Defendant Contributed DNA to a Mixture from At Least Three Persons—Conviction Reversed as Against the Weight of the Evidence

The First Department, over a dissent, determined that defendant’s conviction of criminal possession of a weapon was against the weight of the evidence. The medical examiner testified there was a mixture of DNA from at least three persons found on the weapon and defendant “could” have been a contributor to that mixture. “In other words, the medical examiner could not rule out the reasonable possibility that another unrelated individual could match the DNA profile.”  The court explained its role in a “weight of the evidence,” as opposed to a “legal insufficiency,” analysis:

On this appeal, defendant does not ask us to reverse his convictions of criminal possession of a weapon in the second and third degrees on the ground that the trial evidence was legally insufficient to support such convictions. Instead, defendant argues that his convictions should be reversed because the jury’s verdict was against the weight of the evidence. An appellate court weighing the evidence “must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony'” … . “If based on all the credible evidence a different finding would not have been unreasonable” and if the “trier of fact has failed to give the evidence the weight it should be accorded, the appellate court may set aside the verdict” … . When an appellate court performs weight of the evidence review, it sits, in effect, as a “thirteenth juror” … .

We agree with defendant that the verdict was against the weight of the evidence … . The evidence failed to connect defendant with a pistol that had been discarded during a shooting incident. People v Graham, 2015 NY Slip Op 04401, 1st Dept 5-26-15

 

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Insanity Acquittee Not Entitled to Blanket Sealing of Record of a Recommitment Proceeding But Is Entitled to Sealing of His Clinical Record

The Third Department determined respondent, who is subject to Criminal Procedure Law 330.20 based on his acquittal of criminal charges by reason of mental disease or defect, was not entitled to a blanket sealing of the record of a recommitment proceeding pursuant to Mental Hygiene Law 9.31 (F), but was entitled to the sealing of his clinical record pursuant to Mental Hygiene Law 33.13:

Here, respondent was subject to CPL 330.20 based upon his acquittal of criminal charges by reason of mental disease or defect. A lack of responsibility for criminal conduct by reason of mental disease or defect is an affirmative defense that a defendant must raise and prove by a preponderance of the evidence (see Penal Law §§ 25.00 [2]; 40.15). By avoiding criminal penalties and becoming subject to CPL 330.20, “this places insanity acquittees in a significantly different posture than involuntarily committed civil patients” …, and “rational differences between procedures for commitment and release applicable to defendants found not responsible and persons involuntarily committed under the Mental Hygiene Law are justifiable” … . In light of this distinction, we agree with Supreme Court that the blanket sealing of the record that is specifically applicable to the involuntarily admission of civil patients under Mental Hygiene Law § 9.31 (f) is not applicable to respondent … .

We reach a different conclusion, however, regarding defendant’s clinical record. Pursuant to Mental Hygiene Law § 33.13, a clinical record for each patient or client shall be kept containing “information on all matters relating to the admission, legal status, care, and treatment of the patient or client and shall include all pertinent documents relating to the patient or client” (Mental Hygiene Law § 33.13 [a]) and “such information about patients or clients . . . shall not be a public record,” subject to certain exceptions (Mental Hygiene Law § 33.13 [c]). Although Supreme Court ruled that respondent’s clinical treatment records, related hospital records and unrelated medical records must be sealed, it is unclear if other information intended to be included in his clinical record under Mental Hygiene Law § 33.13 (a) would be made public. In our view, respondent is entitled to the full protection of Mental Hygiene Law § 33.13, and all information contained in his clinical record, as defined in Mental Hygiene Law § 33.13 (a), shall not be made public, subject to the statutory exceptions (see Mental Hygiene Law § 33.13 [c]). Matter of John Z. (John Z.), 2015 NY Slip Op 04361, 3rd Dept 5-21-15

 

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Despite the Fact that Defendant Entered Guilty Pleas in Two Counties, Only One SORA Disposition for the “Current Offenses” (Which Included the Offenses from Both Counties) Can Be Held

The Defendant was convicted (by guilty pleas) of sex offenses committed in two counties.  The two district attorney offices coordinated the defendant’s sentences to run concurrently.  Prior to defendant’s release a SORA hearing was held in one of the two counties, taking into account all of the offenses to which defendant pled guilty.  When defendant was notified the second county had scheduled a SORA hearing he filed a motion to dismiss the second proceeding, arguing it was unauthorized by SORA and barred by the doctrine of res judicata.  The Second Department agreed and dismissed the second proceeding.  The decision includes a substantive discussion of statutory interpretation and the purposes and application of the Sex Offender Registration Act:

…[T]he defendant pleaded guilty to charges contained in accusatory instruments filed in two different counties, two in Queens County and one in Richmond County. Nonetheless,… all of those offenses constituted “Current Offenses” for the purpose of determining the defendant’s risk level pursuant to SORA and, indeed, were considered as such by the Board of Examiners of Sex Offenders and the Supreme Court, Richmond County, in conducting their SORA assessment.

The only reasonable interpretation of the statute and Guidelines, and the one that most effectuates SORA’s purpose, is that only one SORA “disposition” may be made per “Current Offense,” or group of “Current Offenses.” Once a court has rendered “an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based” and submitted such order to the Division (Correction Law § 168-d[3]), the Division has all the information it needs to create a file for the defendant and add it to the registry (see Correction Law § 168-b[1]). In this case, once the Division received the SORA order from Richmond County, it had the information it needed to serve SORA’s goal of “protect[ing] the public from” this particular sex offender … . People v Cook, 2015 NY Slip Op 04295, 2nd Dept 5-20-15

 

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