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Increasing Defendant’s Risk Level Based Upon His Mental Retardation Was an Abuse of Discretion

In a risk assessment proceeding pursuant to the Sex Offender Registration Act (SORA), the First Department determined Supreme Court should not have increased defendant’s risk level from a presumptive level two to level three based upon his mental retardation. The court explained that there had been no “clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior: “

The court erred in finding that defendant’s mental retardation warranted an upward departure to level three. The essence of the court’s reasoning was that defendant lacked the ability to appreciate the inappropriateness of his actions, or could not control his impulsive behavior. A departure from the presumptive risk level is warranted “where there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” … . The guidelines clearly provide for an automatic override to a presumptive level three designation where there has been a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior. Here, no such clinical assessment has been made, and thus an upward departure on this basis was improper… . People v McKelvin, 2015 NY Slip Op 02914, 1st Dept 4-7-15

 

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Misrepresentations About Expunged Drug-Related Offenses on Student’s Law School Admission Application Supported the Rescinding of the Student’s Admission After Completion of Three Semesters

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined a law school did not act arbitrarily and capriciously when it determined a student had made misrepresentations about (expunged) criminal offenses in his admission-application and rescinded his admission after three semesters of study:

Courts have a “restricted role” in reviewing determinations of colleges and universities … . A determination will not be disturbed unless a school acts arbitrarily and not in the exercise of its honest discretion, it fails to abide by its own rules … or imposes a penalty so excessive that it shocks one’s sense of fairness … . None of those factors is present here.

The law school’s treatment of [the student] was rational insofar as it was not wholly inconsistent with the school’s approach to rescission of admission in general. The law school states that while it routinely receives, and often grants, requests from enrolled students to amend the criminal history sections of their applications, such amendments usually involve minor offenses such as open container or traffic violations, or small quantity marijuana possession. Amendments are by no means guaranteed – -the law school states that on at least two occasions, when the information contained in the subsequent disclosure would have prevented the individual from being considered for admission, the students’ admission was rescinded.

The law school avers that it has an unwritten policy of not admitting people who sell drugs and that if [the student] had disclosed on his application that his arrest was for the distribution of LSD to an undercover officer and possession with intent to distribute, his application would have been denied during the initial screening process. The school explains that it generally distinguishes between applicants with a history of personal drug use, and those with a history of drug dealing – – the former can be accepted under certain circumstances, but the latter are not. Matter of Powers v St. John’s Univ. Sch. of Law, 2015 NY Slip Op 02799, CtApp 4-2-15

 

 

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Denial of Application for Renewal of General Contractor’s Registration Based Upon a Conviction Which Preceded a Prior Renewal Was Arbitrary and Capricious

The First Department determined the denial of petitioner’s application for renewal of his general contractor’s registration, based upon a conviction which preceded a prior renewal, was arbitrary and capricious.  The court noted that the presumption derived from petitioner’s certificate of relief from disabilities was not rebutted:

Respondent’s determination lacked a rational basis (see CPLR 7803[3]…). Respondent arbitrarily concluded that petitioner’s prior conviction for filing false documents bore a direct relationship to the duties and responsibilities attendant to the general contractor registration, the license for which he sought renewal (see Correction Law §§ 752[1], 750[3]…). * * *

Respondent’s failure to rebut the presumption of rehabilitation deriving from petitioner’s certificate of relief from disabilities also renders its determination arbitrary and capricious … . Matter of Jakubiak v New York City Dept. of Bldgs., 2015 NY Slip Op 02858, 1st Dept 4-2-15

 

Conviction Based Upon a Plea Allocution In Which Defendant Was Not Informed of the Period of Post-Release Supervision Can Not Be Used as a Predicate Violent Felony for Purposes of Sentencing as a Persistent Violent Felony Offender

The Third Department determined a conviction based upon a plea allocution in which defendant was not informed of the period of post-release supervision (PRS) could not serve as a predicate felony for sentencing as persistent violent felony offender:

Defendant challenges the use of his 1999 conviction as a predicate violent felony, asserting that at the time of his plea to that charge he was not informed that the resulting sentence would include a mandatory period of postrelease supervision (hereinafter PRS). “Notwithstanding his failure to appeal from the [1999] conviction, defendant had an independent statutory right to challenge its use as a predicate conviction on the ground it was unconstitutionally obtained” … . It is well established that a court must advise a defendant of the direct consequences of a plea prior to sentencing, specifically including the existence and duration of any PRS requirement … .

Here, the transcript of defendant’s 1999 plea allocution reveals that he was not advised that his plea would result in a mandatory period of PRS. Rather, defendant was first informed about the PRS through the court’s pronouncement of his sentence. Defendant made comments expressing his surprise as to the PRS immediately thereafter, but he was not afforded an opportunity to withdraw his plea, either during his original sentencing or when he was later resentenced to adjust the duration of the PRS to conform with the requirements of Penal Law § 70.45. Given the apparent infirmities in defendant’s 1999 plea allocution, we find that County Court erred in accepting the resulting conviction as a predicate violent felony for the purpose of sentencing defendant as a persistent violent felony offender … . People v Brewington, 2015 NY Slip Op 02805, 3rd Dept 4-2-15

 

Juror Had Personal/Professional Relationships with Two Prosecution Witnesses—For Cause Challenge Should Have Been Granted

The Third Department determined the defendant’s conviction must be reversed because a juror had personal/professional relationships with two of the prosecution witnesses and defendant’s for cause challenge to the juror was denied:

A juror whose relationship with a potential witness is so close “that it is likely to preclude him [or her] from rendering an impartial verdict” (CPL 270.20 [1] [c]) must be excused even if the juror states that he or she can be impartial, because “the risk of prejudice arising out of the close relationship . . . [is] so great that recital of an oath of impartiality could not convincingly dispel the taint” … . In determining whether a relationship is so close as to require disqualification, a court should consider factors “such as the frequency, recency or currency of the contact, whether it was direct contact, . . . the nature of the relationship as personal and/or professional . . . [and] any facet of the relationship likely to preclude the prospective juror from being impartial” … . As to the first witness, a former working relationship, without more, will not necessarily give rise to implied bias requiring disqualification … . Here, however, the juror described the relationship as more than merely professional; he stated that he knew the witness well, had discussed many subjects with him, had strong feelings about him and tended to believe him, and he volunteered that he was concerned as to whether the relationship would affect his judgment. The juror’s longstanding social relationship with the second witness was sufficiently close that the witness was aware that the juror had been called to jury duty on the case he had investigated, and sufficiently current that the juror and witness had spoken only a few days before the trial. Thus, this relationship, like that with the first witness, “was far more than a ‘nodding acquaintance'” … . Failure to excuse the juror could have “create[d] the perception that the accused might not receive a fair trial before an impartial finder of fact” … . Accordingly, based upon these two relationships, defendant’s challenge for cause should have been granted. People v Hamilton, 2015 NY Slip Op 02804, 3rd Dept 4-2-15

 

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Defense Counsel Took a Position Adverse to the Defendant’s—Sentence Vacated

The Third Department determined the defendant’s sentence must be vacated because defense counsel took a position adverse to the defendant re: the defendant’s motion to withdraw his plea:

“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”… . While defense counsel need not support a pro se motion to withdraw a plea, counsel may not become a witness against his or her client …, make remarks that “affirmatively undermine” a defendant’s arguments …, or otherwise “take a position that is adverse to the defendant” … . Here, when asked to respond to defendant’s pro se motion, counsel advised that, in his opinion, “[County] Court thoroughly explained everything to him . . ., [defendant had] no questions concerning the plea” and that there was no way that he could see that defendant “pleaded without knowing what he was pleading to.” In our view, because counsel’s opinion was adverse to defendant, a conflict of interest arose and County Court should have assigned a new attorney to represent defendant … . People v Prater,2015 NY Slip Op 02806, 3rd Dept 4-2-15

 

Jury Instruction Reversed Burden of Proof—New Trial Ordered

The Third Department determined defendant’s conviction must be reversed because the trial court’s instruction to the jury reversed the burden of proof.  The defendant was accused of killing a pit bull in violation of Agriculture and Markets Law  353(a)(1):

….[D]efendant contends that County Court erred in rendering a supplemental jury instruction that effectively shifted the burden of proof to defendant to prove his own innocence. While defendant failed to preserve this issue through an appropriate objection, given the nature of the challenged instruction, we exercise our interest of justice jurisdiction to take corrective action … . Without question, the People bear the burden of proving a defendant’s guilt beyond a reasonable doubt, and County Court so charged the jury twice before giving the instruction at issue. After receiving a further note from the jury requesting definitions for certain terms, including “depraved” and “sadistic,” the court determined that it would “be beneficial . . . to once again go over the definition of aggravated cruelty.” In doing so, however, the court advised the jury: “Thus, if you find beyond a reasonable doubt that the defendant did not engage in conduct which caused the animal extreme pain or which was not done or carried out in an especially depraved or sadistic manner, you must find the defendant not guilty.” This charge impermissibly shifted the burden of proof by suggesting that defendant needed to prove his innocence beyond a reasonable doubt. Compounding the problem, the charge was rendered shortly before the jury rendered the guilty verdict. In our view, this was a fundamental error, requiring the reversal of the judgment and a new trial … . People v Facey, 2015 NY Slip Op 02810, 3rd Dept 4-2-15

 

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Forcing Defendant to Go to Trial When His Expert on the Intoxication Defense Was Not Available Rendered Defendant’s Guilty Plea Involuntary and Coerced

The Third Department vacated defendant’s plea, finding that it was involuntary and coerced.  Defendant admitted shooting and killing his brother, but it was clear that defendant was highly intoxicated at the time of the offense.  County Court set the matter down for trial at a time the defendant’s expert on the intoxication defense was not available, after the court concluded there was no merit to the defense. During the plea colloquy the defendant answered “to the best of my recollection” when asked whether he had caused the death of his brother. Under these circumstances the waiver of appeal and the failure to preserve the error did not preclude review:

…[D]efendant’s challenge to the voluntariness of his plea survives his uncontested waiver of the right to appeal but is unpreserved for our review in the absence of a motion to withdraw his plea … . That said, we nonetheless are persuaded that the narrow exception to the preservation requirement was triggered here, as defendant’s qualified response — “[t]o the best of my recollection” — to County Court’s key question during the course of the plea allocution cast doubt upon his guilt and/or otherwise called into question the voluntariness of his plea, thereby obligating County Court to undertake further inquiry prior to accepting defendant’s plea … — particularly in view of the transcripts of the 911 call, wherein defendant clearly indicated that he had been drinking on the day of the shooting, and defendant’s Town Court arraignment, wherein the Town Judge expressed concerns regarding defendant’s ability to understand the charges against him due to his apparent level of intoxication. We also find merit to defendant’s claim that his plea was coerced. As noted previously, defendant entered his plea of guilty in response to the prospect of proceeding to trial within a matter of days and without an expert witness, and such plea was entered on the heels of County Court’s questionable, pretrial analysis as to the viability of defendant’s asserted intoxication defense. Under these circumstances, we are unable to conclude that defendant’s guilty plea was knowing, intelligent and voluntary. People v Lang, 2015 NY Slip Op 02809, 3rd Dept 4-2-15

 

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Ex Parte Interview of Important Prosecution Witness Re: the Witness’ Health, Addictions and Ability to Testify Violated Defendants’ Right to Confrontation and Right to Counsel

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissent, determined that the court’s conducting an ex parte interview of a main prosecution witness concerning the witness’ health, addictions and his related ability to testify violated the defendants’ right to confrontation and right to counsel:

Absent a substantial justification, courts must not examine witnesses about nonministerial matters in camera without counsel present or ex parte (see … People v Goggins, 34 NY2d 163, 173 [1974]). “[A]n in-camera examination of the witnesses, that is ex parte or without the parties represented would, in our view, arguably trifle with the constitutional right to confrontation and the right to counsel” (Goggins, 34 NY2d at 169). A “defendant’s right to the full benefit of the adversary system should not be denied, nor qualified by impairing his right by interposing the ‘neutral’ Judge to assess whether the disclosure is relevant or material” (id.). Goggins concerned a defendant’s right to disclosure of an informant’s identity, and this Court held that where the information “relates to a substantive issue in the case, the disclosure should not be ex parte or without either party present even if in camera” (id. at 173). * * *

The denial of the right to counsel at trial “is of constitutional dimension” and is not subject to harmless error analysis … . Courts should not delve into questions of prejudice when assistance of counsel is involved … . As this Court recognized, “[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial” … . And as this Court held in Hodge, a quantification of what impeachment material defense counsel might have obtained at the proceeding cannot be dispositive …, as harmless error does not apply in right-to-counsel cases … .

Here, the in camera proceeding clearly involved substantive issues as opposed to ministerial matters and there was no justification for excluding defense counsel. Because the discussion involved important issues for trial that might have affected a “substantial right” of a party, defense counsels’ presence was required… . People v Carr, 2015 NY Slip Op 02798, CtApp 4-2-15

 

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Conditions of Probation Which Allowed Release of Defendant’s Pre-Sentence Investigation Report Illegal

The Third Department, in a full-fledged opinion by Justice Devine, determined two provisions of defendant’s sentence to probation which purported to allow release of defendant’s Pre-Sentence Investigation report (PSI) were illegal and must be vacated.  The court noted that the illegality of a sentence which is apparent from the record survives a waiver of appeal and the absence of an objection:

CPL 390.50 (1) provides that a PSI “is confidential and may not be made available to any person or public or private agency except where specifically required or permitted by statute or upon specific authorization of the court” (emphasis added). The court that is referenced in CPL 390.50 (1) is the sentencing court … . While the People argue that the challenged conditions constitute specific authorization of disclosure by the sentencing court, condition 17, on its face, is a blanket delegation to the Probation Department to authorize disclosure of the PSI to treatment providers if the department deems the request appropriate. In our view, such a general authorization of disclosure by the Probation Department is contrary to both the statutory mandate of specific authorization and this Court’s direction that only the sentencing court can grant that authorization.

Moreover, the requirement in condition 32 that defendant consent to disclosure of the PSI is similarly contrary to law. Under CPL 390.50, criminal defendants themselves are not entitled to their PSI in collateral proceedings, absent statutory authority, except under limited conditions, i.e., upon a proper factual showing of need … . Even when a defendant has demonstrated a need for disclosure, he or she is never “automatically entitled to an unredacted copy of [the PSI]” … . Rather, in light of the requirement of specific authorization and given the sentencing court’s discretion to except portions of a PSI from disclosure, the court must make a determination whether redaction is appropriate … . That is, under the statute, a defendant cannot demand or “consent” to release of the entire, unredacted PSI — only the sentencing court can permit the release of the PSI after the party requesting it has shown that the information cannot be obtained in any other way, and only after the court has considered whether redaction is necessary. People v Fishel, 2015 NY Slip Op 02808, 3rd Dept 4-2-15

 

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