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Reduced Sentences Pursuant to the Drug Law Reform Act Apply to Those on Parole As Well As Those Who Are Incarcerated

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a two-judge dissent, determined that the ability to apply for a reduced sentence for drug offenses pursuant to the Drug Law Reform Act applied to those on parole, as well as those who are incarcerated: “The issue presented by this appeal is whether the 2011 amendments to CPL 440.46 expanded the class of defendants eligible for resentencing under the Drug Law Reform Act to include those who are on parole at the time resentencing is sought. We left this question open in People v Paulin (17 NY3d 238, 243 [2011]) and People v Santiago (17 NY3d 246, 247 [2011]), and now hold that the amendments did expand eligibility to parolees …” . People v Brown, 2015 NY Slip Op 04163, CtApp 5-14-15

 

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Court Not Required to Obtain a New Risk Assessment Instrument After People Filed a Petition for an Upward Modification Based Upon a New Offense Committed In Violation of Defendant’s Probation

Re: the People’s petition for upward modification, the Second Department determined County Court was not required to obtain a new Risk Assessment Instrument (RAI) after the defendant committed a “new” sex crime in violation of his probation.  The petition for upward modification was properly sent to the Board of Examiners of Sex Offenders (Board) and the Board properly responded by letter:

Correction Law § 168-o specifies that, upon the receipt of such a petition, “the court shall forward a copy of the petition to the board and request an updated recommendation pertaining to the sex offender” (Correction Law § 168-o[4]). The County Court followed this procedure and received an “updated recommendation” from the Board, in the form of a letter. The RAI, an “objective assessment instrument” created by the Board to assess an offender’s “presumptive risk level” … was designed to assist the courts in reaching an initial SORA determination. Indeed, if a new RAI was completed upon the filing of the People’s petition, it would be almost identical to the initial RAI, in which 10 out of the 15 risk factors addressed the subject sex offense and crimes committed prior to that offense … . Thus, the County Court was not required to obtain a new RAI from the Board in considering the People’s petition for an upward modification pursuant to Correction Law § 168-o(3). People v Williams, 2015 NY Slip Op 04108, 2nd Dept 5-13-15

 

Court Could Not Promise a “Violent Felony Override” Allowing Defendant to Participate in Programs While Incarcerated—Only the DOCCS Can Determine Defendant’s Eligibility—Conviction by Guilty Plea Reversed

The Second Department determined the sentencing court had no authority to promise the defendant, as part of the plea bargain, a “violent felony override” which would allow the defendant to participate in a variety of programs while incarcerated. Where a defendant is statutorily qualified (as defendant was) it is up to the Department of Corrections and Community Supervision (DOCCS) to determine a defendant’s eligibility for the programs.  Therefore, defendant’s guilty plea was reversed because it was based in part on misinformation (not knowing and voluntary):

… [A] “violent felony override” is “an imprecise and potentially confusing term that is sometimes used to describe a document referred to in 7 NYCRR 1900.4(c)(1)(iii) that permits the Department of Corrections and Community Supervision (hereinafter DOCCS) to ascertain whether an inmate has met one of the threshold requirements to be eligible for a temporary release program despite conviction of a specified violent felony offense” (id.; see Correction Law § 851[2]; Executive Order [Spitzer] No. 9 [9 NYCRR 6.9]; Executive Order [A. Cuomo] No. 2 [9 NYCRR 8.2]; 7 NYCRR 1900.4[c][1][ii], [iii]; [2]). “Certain subdivisions of the specified violent felony offenses will not disqualify an inmate from eligibility for temporary release. The document provided for in 7 NYCRR 1900.4(c)(1)(iii) need only set forth the exact offense, including the section, and subdivision if any, of the crimes of which the inmate was convicted. When the document indicates that the inmate was convicted of a subdivision of one of the enumerated violent felony offenses that does not automatically disqualify the inmate from eligibility for temporary release, the inmate may use it to establish that he has met one of the threshold requirements for eligibility” … . The document itself does not qualify an inmate for eligibility for temporary release … “It is for DOCCS, and not the court or the district attorney, to determine whether conviction under a particular section and subdivision disqualifies an inmate from eligibility” (id.; see generally 7 NYCRR 1900.4). The issuance of the document specified in 7 NYCRR 1900.4(c)(1)(iii) is not discretionary, and a defendant is entitled to have the exact statutory provisions under which he or she was convicted specified in the sentence and commitment … .

As part of the plea agreement, the County Court promised the defendant that it would sign a “violent felony override,” which would make the defendant eligible for several programs in prison. Since the document specified in 7 NYCRR 1900.4(c)(1)(iii) does not, by itself, qualify an inmate for eligibility for temporary release, and eligibility for temporary release programs are determined by DOCCS, the court exceeded its authority by promising the defendant something that it had no authority to promise in exchange for the defendant’s plea of guilty. Under these circumstances, the defendant’s plea of guilty was not knowing, voluntary, and intelligent… . People v Ballato, 2015 NY Slip Op 04140, 2nd Dept 5-13-15

 

 

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Conviction In a Military Tribunal of “Assault with Intent to Commit Rape” Was Not a “Sex Offense” Under New York Law—However, the Conviction Could Be Considered Under the “Prior Criminal History” Risk Assessment Category

The Second Department determined that conviction of “assault with intent to commit rape” in a military tribunal should not have been as a “prior sex crime” to determine defendant’s risk level.  The offense did not qualify as a “sex offense” under New York law and did not include all the elements of any New York sex offense.  The conviction, however, could be considered as “a prior criminal history” in the risk assessment:

…[T]he military offense of which the defendant was convicted did not qualify as a “sex offense,” as defined in Correction Law § 168-a(2)(d)(ii) … . Furthermore, contrary to the People’s contention, the defendant’s military offense does not “include[ ] all of the essential elements” (Correction Law § 168-a[2][d][i]) of attempted rape in the first degree under New York law, and thus does not qualify as a “sex offense” on that basis.

Although the defendant’s prior military offense of assault with intent to commit rape [*2]does not qualify as a sex offense, it does evidence a prior criminal history, People v Lancaster, 2015 NY Slip Op 04106, 2nd Dept 5-13-15

 

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Counts Rendered Duplicitous by Trial Testimony/Prosecution Held to Erroneous Jury Charge to Which No Objection Was Made/Prosecutorial Misconduct Mandated a New Trial

The Second Department determined: (1) many counts of the indictment were rendered duplicitous because the complainant in this sex-offense case testified to more than one offense within the time-periods encompassed by indictment counts; (2) the prosecution must be held to the erroneous jury charge to which no objection was made (stating proof complainant was less than 14 was required when the statute says less than 15); (3) the prosecution did not prove complainant was less than 14—relevant counts dismissed; and (4) prosecutorial misconduct during summation (prosecutor acted as an unsworn witness, invited the jury to speculate, shifted the burden of proof, and made inflammatory remarks) mandated a new trial on the remaining counts:

Each count of an indictment may charge one offense only” (CPL 200.30[1]). A count in an indictment is void as duplicitous when that “single count charges more than one offense” … . Where, as here, the crime charged ” is completed by a discrete act, and where a count in the indictment is based on the repeated occurrence of that act over a course of time, the count includes more than a single offense and is duplicitous'” … . ” Even if a count is valid on its face, it is nonetheless duplicitous where the evidence presented . . . at trial makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict'” … . * * *

… [S]ince the People did not object to the erroneous jury charge, they were “bound to satisfy the heavier burden” … of proving, for counts 1 through 40, that the defendant engaged in sexual intercourse with a person less than 14 years old. Since the evidence demonstrated that the complainant was 14 years old during the time periods encompassed by counts 17 through 40 of the indictment, the People failed to satisfy this burden as to those counts. * * *

“[S]ummation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his [or her] command” … . Rather, “[t]here are certain well-defined limits” (id. at 109). Among other things, “[the prosecutor] must stay within the four corners of the evidence’ and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused” … . A prosecutor would be well-advised not to test these limits, both so as to stay within his or her proper truth-seeking role … and so as to avoid the waste of time and expense that occurs when a new trial must be conducted solely on the basis of summation misconduct. Here, the prosecutor surpassed the “well-defined limits” … .

The prosecutor acted as an unsworn witness when, in response to defense counsel’s summation comments regarding the lack of corroborative medical evidence and the failure to call certain witnesses, the prosecutor told the jury that the uncalled witnesses had “nothing to offer” and that the medical records the prosecution failed to offer into evidence were “either irrelevant or cumulative” … . The prosecutor also improperly invited the jury to speculate as to certain matters, despite advance warning by the trial court not to engage in that line of comment … . Further, the prosecutor shifted the burden of proof by telling the jury, and repeatedly returning to this theme, that it had not “heard” any “compelling reason” for the complainant to lie, and by suggesting that the jury would have to convict the defendant if it did not “buy” the defendant’s explanation of certain evidence … . The prosecutor further improperly suggested that the jury would have to conclude that the complainant was “evil” in order to acquit the defendant … . The prosecutor repeatedly vouched for the complainant, while denigrating the defense and expressing his personal opinion as to the defendant’s lack of credibility … . Finally, the prosecutor made a number of inflammatory references to the defendant using the complainant as his “personal sex toy” … . People v Singh, 2015 NY Slip Op 04157, 2nd Dept 5-13-15

 

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Waiver of Appeal Encompasses Sentencing Court’s Denial of Youthful Offender Status

The Court of Appeals, over a two-judge dissent, determined a defendant who has waived his right to appeal may not (on appeal) raise the sentencing court’s denial of youthful offender status.  The Court of Appeals described the limited circumstances under which fundamental issues may be raised on appeal despite a waiver of appeal. Among them is the sentencing court’s failure to consider youthful offender status for an eligible defendant. However, if the sentencing court considered the issue, it is encompassed by the waiver:

“[G]enerally, an appeal waiver will encompass any issue that does not involve a right of constitutional dimension going to ‘the very heart of the process'” … . This Court has recognized that the right to a speedy trial, challenges to the legality of a court-imposed sentence, questions about a defendant’s competency to stand trial, and whether the waiver was obtained in a constitutionally acceptable manner cannot be foreclosed from appellate review … . * * *

It is well settled that once considered, a youthful offender adjudication is a matter left to the sound discretion of the sentencing court and therefore any review is limited (see CPL 720.20 [1] [a]). …”[W]hen a defendant enters into a guilty plea that includes a valid waiver of the right to appeal, that waiver includes any challenge to the severity of the sentence. By pleading guilty and waiving the right to appeal, a defendant has forgone review of the terms of the plea, including harshness or excessiveness of the sentence” … . To the extent defendant appeals the harshness of his sentence or the sentencing court’s exercise of discretion in denying youthful offender status, his appeal waiver forecloses the claim.

We therefore conclude that a valid waiver of the right to appeal, while not enforceable in the face of a failure to consider youthful offender treatment, forecloses appellate review of a sentencing court’s discretionary decision to deny youthful offender status once a court has considered such treatment. People v Pacherille, 2015 NY Slip Op 04027, CtApp 5-12-15

 

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Denial of Petitioner’s Application for Employment as a School-Bus Driver, Based Upon His Criminal Record, Was Not Arbitrary and Capricious Despite Petitioner’s Good Employment Record and His Obtaining a Certificate of Relief from Civil Disabilities

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a two-judge dissent, determined petitioner was properly precluded by the Department of Education (DOE) from employment as a school-bus driver, based upon his criminal record.  The offenses were committed when petitioner was in his 40’s and petitioner had had no further contact with the criminal justice system for 15 years.  Petitioner had obtained a certificate of relief from civil disabilities and had a good employment record, which included transporting children.  The Court of Appeals held that the DOE’s action was not arbitrary and capricious because the DOE considered all of the statutory factors in Corrections Law 752.  The Court of Appeals noted that obtaining a certificate of relief from civil disabilities establishes a presumption of rehabilitation, but the certificate does not establish a prima facie right to a license or employment:

The Correction Law sets out eight factors that a public agency or private employer must consider when deciding whether one of the § 752 exceptions applies:

“(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.

(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.

(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his [or her] fitness or ability to perform one or more such duties or responsibilities.

(d) The time which has elapsed since the occurrence of the criminal offense or offenses.

(e) The age of the person at the time of occurrence of the criminal offense or offenses.

(f) The seriousness of the offense or offenses.

(g) Any information produced by the person, or produced on his [or her] behalf, in regard to his [or her] rehabilitation and good conduct.

(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.” (Correction Law § 753 [1].)

[The Court of Appeals has held] that “[a] failure to take into consideration each of these factors results in a failure to comply with the Correction Law’s mandatory directive” … . Matter of Dempsey v New York City Dept. of Educ., 2015 NY Slip Op 04028, CtApp 5-12-15

 

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Court Should Not Have Deferred, Over Defense Counsel’s Objection, to Defendant’s Request that the Jury Not Be Charged on a Lesser Included Offense—To Do So Denies Defendant His Right to the Expert Judgment of Counsel

The Fourth Department determined the court erred in deferring to the defendant’s request that the jury not be charged to consider a lesser included offense.  Defense counsel strongly objected to the defendant’s request and so informed the court.  The decision concerning whether to request a “lesser included” jury instruction is solely the province of defense counsel:

In Colville (20 NY3d at 23), the Court of Appeals held that “the decision whether to seek a jury charge on lesser-included offenses is a matter of strategy and tactics which ultimately rests with defense counsel.” In that case, the trial court agreed with defense counsel that a reasonable view of the evidence supported his request to submit two lesser included offenses to the jury (id.). Nevertheless, “contrary to defense counsel’s request and repeated statements that, in his professional judgment, the lesser-included offenses should be given to the jury, the judge did not do so because defendant objected” (id.). The jury convicted the defendant of murder, and the Court of Appeals reversed and ordered a new trial, concluding that, “[b]y deferring to defendant, the judge denied him the expert judgment of counsel to which the Sixth Amendment entitles him” (id. at 32). People v Brown, 2014 NY Slip Op 03374, 4th Dept 5-9-14

 

Resentencing Defendant to Original Sentence (Imposing No Post Release Supervision) Did Not Require Defendant’s Presence

The Fourth Department, over a dissent, determined defendant was properly sentenced even though he was not present at the resentencing.  The original sentence did not include a period of post release supervision [PRS].  The resentence also did not impose PRS.  Therefore, there was no error which adversely affected the defendant:

Defendant … contends that the court erred in conducting the resentence in his absence and without assigning counsel (see Correction Law § 601-d [4] [a]; CPL 380.40 [1]…). That contention is not properly before us because we may only “consider and determine any question of law or issue of fact involving error or defect . . . which may have adversely affected the appellant” (CPL 470.15 [1]). Here, the only issue presented at resentencing was whether the court would impose a period of PRS, and the District Attorney had already informed the court and defendant in writing that the People would consent to the reimposition of the original sentence, i.e., without a period of PRS. Inasmuch as the court reimposed that original sentence, “defendant was not adversely affected by any error, because the result, i.e., freedom from having to serve a term of PRS [with respect to this count of the indictment], was in his favor” … . People v Mills, 2014 NY Slip Op 03388, 4th Dept 5-9-14

 

Indictment Dismissed after Trial as Multiplicitous and Duplicitous/Grand Larceny Can Not Be Based Upon the Violation of a Regulation that Is Civil in Nature

The Fourth Department reversed defendant’s conviction and dismissed the indictment in a prosecution alleging public assistance fraud in the operation of a daycare home.  The indictment charged the defendant with grand larceny, falsifying business records and offering a false instrument for filing.  Essentially, the charges alleged the defendant billed for services provided by an unlicensed care-giver, and billed for services which were not provided.  The Fourth Department held that the entire indictment was rendered multiplicitous and duplicitous by the trial evidence.  In addition, the court determined that the grand larceny count could not be based upon the violation of a regulation requiring the presence of a licensed assistant.

With respect to multiplicity and duplicity, the court wrote:

Prosecutors and grand juries must steer between the evils known as duplicity’ and multiplicity.’ An indictment is duplicitous when a single count charges more than one offense . . . It is multiplicitous when a single offense is charged in more than one count . . . A duplicitous indictment may fail to give a defendant adequate notice and opportunity to defend; it may impair his [or her] ability to assert the protection against double jeopardy in a future case; and it may undermine the requirement of jury unanimity, for if jurors are considering separate crimes in a single count, some may find the defendant guilty of one, and some of the other. If an indictment is multiplicitous it creates the risk that a defendant will be punished for, or stigmatized with a conviction of, more crimes than he [or she] actually committed” … . An indictment that is not duplicitous on its face may be rendered so based upon the trial evidence … .

Here, the People correctly concede that counts 5 through 7, 9, 15 through 17, and 19 of the indictment are duplicitous and multiplicitous inasmuch as they are based on “distinct but not identifiable vouchers.” Those counts are all based on the same time period and the same vendor number and, according to the People, there is no way to identify which voucher refers to which count … .  …

With respect to the remaining counts of the indictment, we agree with defendant that counts 8, 10, 18, and 20 of the indictment were rendered duplicitous by the trial evidence.. . . As noted above, the People alleged that defendant submitted vouchers for monies to which she was not entitled because, at various dates and times, she (1) billed for hours when neither she nor her certified assistant were at the daycare, and (2) she billed for hours when the children were not at the daycare. There is no basis in the record to determine, with respect to each of those counts, whether the jury convicted defendant based upon the first act (billing for hours when the children were watched by uncertified assistants) or the second act (billing for hours when the children were not at daycare), or whether certain jurors convicted defendant upon the former and others upon the latter. Thus, “it is impossible to verify that each member of the jury convicted defendant for the same criminal act”… .

With respect to grand larceny based upon the violation of a regulation, the court wrote:

Count one of the indictment alleges that, between October 1, 2007 and July 30, 2008, defendant “stole property having a value in excess of [$3,000], to wit: a sum of money, belonging to [DSS].” Under Penal Law § 155.05 (1), “[a] person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself [or herself] or to a third person, he [or she] wrongfully takes, obtains or withholds such property from an owner thereof.” Larceny includes “obtaining property by false pretenses” (§ 155.05 [2] [a]). A defendant commits larceny by false pretenses when he or she “obtain[s] possession of money of another by means of an intentional false material statement about a past or presently existing fact upon which the victim relied in parting with the money” … .

Here, the People alleged that defendant committed larceny by false pretenses by charging for times when unlicensed assistants were watching the children in violation of OCFS regulations, and by billing for times when the children were not receiving daycare services. We question whether submitting vouchers for daycare services rendered by an uncertified assistant falls within the definition of larceny. OCFS’s regional manager testified that, although it is a “regulatory violation” for an uncertified assistant to watch children at a group day care, the regulations do not state that daycare providers are not permitted to bill for services rendered by an uncertified assistant. Indeed, the DSS special investigator referred to those hours as “billable” on his charts, although unauthorized by the regulations.

Even assuming, arguendo, that billing for services provided by an uncertified assistant constitutes a “wrongful[ ] tak[ing]” within the meaning of Penal Law § 155.05 (1), we note that “[c]onduct which is wrongful in the civil context is not necessarily wrongful’ within the meaning of the larceny statutes” … .  People v Casiano, 2014 NY Slip Op 03362, 4th Dept 5-9-14

 

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