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NO APPEAL LIES FROM COUNTY COURT’S DISMISSAL WITHOUT PREJUDICE OF DEFENDANT’S APPLICATION FOR RESENTENCING UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA). ​

The Third Department, in a full-fledged opinion by Justice Powers, affirming County Court, determined no appeal lies from the dismissal-without-prejudice of defendant’s application for resentencing under the Domestic Violence Survivors Justice Act (DVSJA):

… [County Court] dismissed the application without prejudice finding that, although she met the step one eligibility criteria for an alternative sentence, “there [was] no [corroborating] evidence nor even allegations presented that [d]efendant was, at the time of the offense, a victim of domestic violence subjected to substantial abuse inflicted by a member of her family or household” as required by CPL 440.47 (2) (c) … . * * *

Where, as here, the Legislature specifically provides for appealability of certain orders but not others, “an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” … . “[S]ince the Legislature failed to provide for an appeal from the [dismissal] of an application for resentencing pursuant to [Penal Law § 60.12 and CPL 440.47 (2) (c)], no appeal was intended” … . “Where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” … . Here, the Legislature intended a different result as to the appealability of orders dismissing without prejudice under step one or step two and an order denying an application on the merits after a hearing under step three, and this Court must give effect to that intention … . Had an appeal from a dismissal without prejudice been intended under step one or step two of the DVSJA, “the [L]egislature could easily have so stated” … . Rather, the language utilized by the Legislature — specifically that dismissal is without prejudice — mandates that the appropriate remedy in this situation is for a defendant to file a new application satisfying the evidentiary requirements of CPL 440.47. Thus, as “[a]ppeals in criminal cases are strictly limited to those authorized by statute,” this appeal is not properly before this Court and must be dismissed … . People v Melissa OO., 2024 NY Slip Op 05920, Third Dept 11-27-24

Practice Point: Criminal appeals are creatures of statutes. Here the DVSJA did not provide for an appeal of the dismissal-without-prejudice of defendant’s application for resentencing. County Court dismissed the application because defendant did not submit evidence she was a victim of domestic abuse.​

 

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THE CRITERIA FOR ALLOWING EXPERT TESTIMONY ON WITNESS-IDENTIFICATION OF A DEFENDANT CLARIFIED; WHETHER TO ALLOW SUCH EVIDENCE DOES NOT TURN ON THE EXISTENCE OR THE STRENGTH OF CORROBORATING EVIDENCE; HERE EXPERT TESTIMONY ON CROSS-RACIAL IDENTIFICATION WAS PROPERLY ALLOWED (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive dissent, affirming defendant’s conviction, clarified the criteria for admitting expert testimony on witness identification of a defendant. Here limited expert testimony was allowed on cross-racial identification:

Questions of the admissibility and scope of expert testimony concerning the factors that affect the reliability of eyewitness identifications in a particular case are addressed to the trial court’s sound discretion … . Courts deciding those questions apply traditional evidentiary principles … , which require the courts to weigh the testimony’s probative value against its prospect of causing undue prejudice to the opposing party, confusing the issues, misleading the jury, or unduly delaying trial … .

On an application to admit expert testimony of this sort, the trial court may need to determine whether the expert testimony is beyond the ken of the average juror or generally accepted in the scientific community … . Indeed, in Abney, we reversed and ordered a new trial where the trial court abused its discretion in denying an application to present expert testimony on several factors, concluding that the court should have held a Frye hearing to resolve the issue of general acceptance … . While general acceptance may be established at a Frye hearing, a hearing is not necessary in all cases … . General acceptance may be established through legal precedent … . Where the defendant fails to demonstrate that a topic of the proffered expert testimony is generally accepted in the relevant scientific community, the trial court should exclude or limit the testimony as appropriate … .

Courts must not decide whether evidence is admissible based solely on the existence or strength of corroborating evidence … . Nor should courts require adequate corroborating evidence as a prerequisite to weighing other considerations pertinent to admissibility … . Rather, courts should be guided by “whether the proffered expert testimony ‘would aid a lay jury in reaching a verdict’ ” … . People v Vaughn, 2024 NY Slip Op 05874, CtApp 111-26-24

Practice Point: Whether to allow expert testimony on witness-identification of a defendant does not turn on the existence or strength of corroborating evidence.

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MISDEMEANOR CONVICTIONS WHICH DID NOT INVOLVE VIOLENCE OR SEXUAL CONDUCT WERE PROPERLY CONSIDERED BY COUNTY COURT IN DENYING DEFENDANT’S REQUEST FOR A SORA RISK-LEVEL REDUCTION TO LEVEL ONE, DESPITE THE BOARD OF EXAMINERS OF SEX OFFENDERS’ STATEMENT IT “WOULD NOT OPPOSE” A LEVEL ONE RISK ASSESSMENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive three-judge dissent, determined County Court properly reduced defendant’s SORA risk-level from three to two, and properly refused to reduce the risk-level to one. The Court of Appeals concluded the 2003 misdemeanor convictions, which did not involve violence or sexual conduct, were properly considered by County Court in denying the level one assessment:

Defendant served 21 years in prison. At first, he denied responsibility for his criminal conduct and refused to participate in sex offender treatment, but he eventually took responsibility and enrolled in treatment, which he completed. Defendant was released to parole in 1998, and the sentencing court determined him to be a level three risk pursuant to SORA. … In 2003, while still on parole, defendant was convicted of two misdemeanors: attempted auto stripping and attempted possession of burglary tools. He has no other convictions since his 1998 release.

In 2021, defendant petitioned under Correction Law § 168-o (2) to modify his risk level classification to level one. Defendant argued that he posed a low risk of reoffense based on his engagement in one-on-one outpatient sex offender treatment from 1998 to 2008; his steady full-time employment, including his current job, which he had held for 17 years; his stable and loving relationship with his wife, whom he met in 2008; his role as stepfather to his wife’s daughter; and his age of 66 years. Defendant also noted that he had fully complied with his SORA obligations since his release 23 years earlier and, aside from his 2003 misdemeanor conviction, had not reoffended. He submitted letters of support from his counselor, wife, and stepdaughter. In addition, he submitted the report of an expert psychologist who examined him and concluded that his risk of reoffense was low, and that requiring him to register at risk level three was no longer necessary for purposes of public safety. At the court’s request … , the Board submitted an “updated recommendation” stating that it “would not oppose” defendant’s request for a modification to level one. * * *

[The] evidence included the nature of the underlying offense, which defendant committed while on parole for a prior sex crime, defendant’s prior offenses, and defendant’s 2003 misdemeanor conviction of crimes committed while on parole for the underlying offense, for which he received a parole violation. Although the misdemeanors appear to have involved no violence or sexual component, we cannot conclude that the court’s consideration of that factor, along with all the other factors, constitutes an abuse of discretion as a matter of law. * * *

… [T]he question is whether his more recent criminal conduct bears on the risk of his committing future sex offenses. Under the dissent’s proposed rule, the SORA court would be prohibited from considering that defendant violated the law and his parole [in 2003] when he was caught with burglary tools after being convicted of raping a young woman during the course of a burglary also committed while defendant was on parole … . We decline to endorse that untenable result. People v Shader, 2024 NY Slip Op 05873, CtApp 11-26-24

Practice Point: Here the Board of Examiners of Sex Offenders (Board) did not oppose a defendant’s request for a risk-level reduction to level one. The Court of Appeals upheld County Court’s level-two designation, which was based in part of two misdemeanor convictions of nonviolent offenses which did not involve sexual conduct. There was an extensive dissent.

 

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THE CASEWORKER WAS PART OF THE CRIMINAL INVESTIGATION IN THIS “COURSE OF SEXUAL CONDUCT WITH A CHILD” PROSECUTION; THE PEOPLE WERE THEREFORE DEEMED TO HAVE HAD CONTROL OVER OR TO HAVE BEEN IN POSSESSION OF THE CASWORKER’S NOTES; THE NOTES INCLUDED BRADY MATERIAL WHICH SHOULD HAVE BEEN TURNED OVER TO THE DEFENSE BEFORE TRIAL; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s “course of sexual conduct with a child” conviction and ordering a new trial, determined that the caseworker’s notes taken during an interview of the child constituted Brady material which should have been turned over to the defendant before trial. The caseworker was part of the criminal investigation. Therefore the notes were deemed to have been under the People’s control or in the People’s possession. There was a notation by the caseworker to the effect the victim “was acting normal and as if nothing happened…”.:

“[W]hether knowledge of a government official or employee may be imputed to the People . . . turn[s] on whether participation in the criminal probe was an ancillary law enforcement task” and, thus, “while social workers are generally not agents of the police, in situations where they engage in a joint venture with police agencies to collaborate on child abuse or sexual abuse investigations, share information and a common purpose, and have a cooperative working arrangement with police, an agency relationship may exist such that the social workers’ knowledge is imputed to the People” … . * * *

The People’s provision of this material after the close of all proof deprived defendant of “a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People’s witnesses or as evidence during his case” … . People v Baez, 2024 NY Slip Op 05844, Third Dept 11-21-24

Practice Point: When a caseworker is part of a criminal investigation, the caseworker’s notes taken when interviewing a child victim are deemed to be under the control of or possessed by the People, such that any Brady material in the notes must be turned over to the defense prior to trial.

 

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THERE WAS NO PROOF THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT IN THE PRESENCE OF COUNSEL; GUILTY PLEA VACATED AND SUPERIOR COURT INFORMATION DISMISSED (THIRD DEPT).

The Third Department, vacating the guilty plea and dismissing the superior court information, determined the record did not demonstrate the defendant signed the waiver of appeal in open court in the presence of counsel:

… [T]he plea minutes are silent as to when the undated waiver was executed by defendant, and during the colloquy County Court referred to defendant as having “signed” the waiver in the past tense … . Neither the waiver nor the plea colloquy confirms that defendant signed the written waiver in the presence of counsel. Further, although County Court indicated in the undated order approving the waiver that it was generally satisfied that the requirements of CPL 195.10 and 195.20 had been met, nothing in the order explicitly confirms “that the waiver was signed in open court” in the presence of counsel . Thus, … the record does not reflect that defendant’s waiver of indictment passes constitutional and statutory muster, and it follows that defendant’s guilty plea must be vacated and the underlying SCI dismissed … . People v Trapani, 2024 NY Slip Op 05846, Third Dept 11-21-24

Practice Point: When a defendant waives his right to an indictment and agrees to plead to a superior court information, the record must reflect the waiver was made in open court and in the presence of counsel. Absent proof of those statutory and constitutional requirements the waiver is invalid.

Similar issue and result in People v Rupp, 2024 NY Slip Op 05845, Third Dept 11-21-24.

 

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THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO DETERMINE RESTITUTION TO THE PROSECUTOR, MATTER REMITTED FOR A HEARING (THIRD DEPT).

The Third Department, remitting the matter for a restitution hearing despite defendant’s failure to preserve the error, determined the record was insufficient to support the ordered restitution. The judge merely accepted the People’s restitution order, thereby improperly delegating the court’s role to the prosecutor:

… [I]t appears County Court impermissibly delegated its authority to the People to determine the amount of restitution owed and that said amount has no factual predicate in the record before us. “Whenever the court requires restitution . . . to be made, the court must make a finding as to the dollar amount of the fruits of the offense and the actual out-of-pocket loss to the victim[s] caused by the offense. In making this finding, the court must consider any victim impact statement provided to the court. If the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing upon the issue” (Penal Law § 60.27 [2] …). At the time of sentencing, the People noted that they had submitted a restitution order for the court to sign[*2]. Seemingly reading from that order, the court ordered defendant to pay restitution in the amount of $773, plus a five percent surcharge in the amount of $38.65, for a total sum of $811.65. The restitution order provided to this Court is not accompanied by any documentation, and neither the presentence report nor the victims’ impact statements at sentencing addressed pecuniary losses. Although defendant’s failure to object at the time of sentencing renders his restitution arguments unpreserved … , as the record before us does not include any proof to substantiate the amount of restitution ordered, we find it appropriate to exercise our discretion in the interest of justice and remit for the sole purpose of a restitution hearing … . People v Lester, 2024 NY Slip Op 05848, Third Dept 11-21-24

Practice Point: It is the judge, not the prosecutor, who makes a restitution determination, which must be supported by the record.

 

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THE PEOPLE’S FAILURE TO FILE A SECOND FELONY OFFENDER STATEMENT RENDERED THE SENTENCE INVALID AS A MATTER OF LAW (THIRD DEPT).

The Third Department, vacating defendant’s sentence, noted that, absent defendant’s consent, the People’s failure to file a second felony offender statement rendered the sentence invalid as a matter of law:

… [D]efendant first argues that Supreme Court sentenced him illegally as a second felony offender. Although the People note that defendant’s argument is unpreserved, they concede that they neglected to file a second felony offender statement prior to sentencing (see CPL 400.21 [2]). “While we have previously held that substantial compliance with this statute is adequate when the defendant admits the prior felony and that errors or omissions in the statement may be waived by an admission by the defendant, we have also held that compliance with the statute is mandatory and that complete failure to file a second felony offender statement prior to sentencing renders the sentence invalid as a matter of law” … . Accordingly, we vacate the sentence imposed and remit the matter to Supreme Court for the filing of a predicate felony offender statement and resentencing in accordance with the law. People v Kane, 2024 NY Slip Op 05850, Third Dept 11-21-24

Practice Point: Where a defendant does not admit the prior felony, the People’s failure to file a second felony offender statement invalidates the sentence.

 

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ALTHOUGH THE JUVENILE DELINQUENCY PETITION WAS PROPERLY DISMISSED BECAUSE THERE WAS NO NONHEARSAY EVIDENCE OF THE IDENTITY OF THE ASSAILANT, IT WAS AN ABUSE OF DISCRETION TO DISMISS THE PETITION WITH PREJUDICE (THIRD DEPT). ​

The Third Department, reversing (modifying) Family Court, agreed the hearsay evidence identifying respondent as the assailant was not sufficient to support the juvenile delinquency petition, the petition should not have been dismissed with prejudice:

… Family Court abused its discretion in dismissing the petition with prejudice. “Where a petition is dismissed as jurisdictionally defective, dismissal is generally without prejudice, and the presentment agency’s proper recourse is to refile the petition” … . The court indicated that the error here was “egregious” because there were no nonhearsay allegations identifying respondent as the individual who committed the charged crime, and that this error could not be remedied by allowing for petitioner to refile. Although this error could not have been remedied by amendment of the petition (see Family Ct Act § 311.5 [2] [b]), it could have been remedied by refiling. Specifically, upon refiling there could be clarification from the deputy as to the specifics of the investigation including, as is relevant here, how the video of the incident was acquired and what that video depicted, based upon the deputy’s personal knowledge after review of the video. This is not a case where the presenting agency will necessarily be unable to establish respondent’s identity … and, therefore, the petition should have been dismissed without prejudice to allow for refiling … . Matter of Savannah F., 2024 NY Slip Op 05860, Third Dept 11-21-24

Practice Point: There was no nonhearsay proof the respondent was the assailant in this juvenile delinquency proceeding. But the petition should not have been dismissed with prejudice because the presenting agency may be able to provide sufficient proof of the identity of the assailant upon refiling.

 

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DEFENDANT’S STATEMENT WAS SUPPRESSED ON APPEAL, BUT THE FOURTH DEPARTMENT HELD THE ERROR WAS HARMLESS; THE COURT OF APPEALS DETERMINED THE FOURTH DEPARTMENT’S HARMLESS-ERROR FINDING WAS NOT SUPPORTED BY THE RECORD (CT APP).

The Court of Appeals, reversing the Fourth Department, in a full-fledged opinion by Judge Garcia, determined the Fourth Department should not have concluded the failure to suppress defendant’s statement was harmless error. Defendant pled guilty with the intention of appealing the denial of his suppression motion:

… [T]he Appellate Division held that defendant’s statement should have been suppressed, but that, because the gun would still have been admissible at trial, the error was harmless as there was no reasonable possibility that it contributed to defendant’s decision to plead guilty. On this record, however, we cannot say with certainty that the erroneous ruling played no part in that decision, and therefore we reverse. * * *

The record here is ambiguous at best as to defendant’s motivation in pleading guilty. Although defendant asserted during the plea colloquy that he was “pleading guilty because it’s a good deal,” he may only have believed that “in the face of all the evidence” admissible at the time, including his highly incriminating post-arrest statement “you saw what I had on me” … . Moreover, when entering his plea, defendant affirmatively sought assurances from the court that he could appeal the suppression determination, indicating the importance he placed on that adverse ruling …. . The People’s argument that defendant may only have been concerned with the court’s suppression of the physical evidence is speculative and insufficient to overcome the high bar for establishing defendant’s independent motivation for the plea. On this record, we cannot say that defendant’s decision to plead guilty was unaffected by the court’s erroneous suppression ruling, and therefore his guilty plea must be vacated. People v Robles, 2024 NY Slip Op 05819, CtApp 11-21-24

Practice Point: Consult this opinion for insight into the difficulty in applying a harmless-error analysis to a guilty plea.

 

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THE TRIAL JUDGE ERRED IN FAILING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE TO THE MURDER CHARGE; THAT FAILURE ALSO MAY HAVE TAINTED THE CRIMINAL-POSSESSION-OF-A-WEAPON CONVICTION, WHICH REQUIRES THE INTENT TO USE THE WEAPON UNLAWFULLY (CT APP). ​

The Court of Appeals, reversing defendant’s murder and criminal possession of a weapon convictions, in a full-fledged opinion by Judge Garcia, determined the judge erred by failing to instruct the jury on the justification defense. The victim threatened defendant with a razor just before shooting. The Court of Appeals noted that if the shooting was justified the “intent to use the weapon unlawfully” element of criminal possession of a weapon may not have been proven:

Defendant was charged with criminal possession of a weapon in the second degree, requiring the People to prove that he possessed the gun with the intent to use it unlawfully against another person … . The model Criminal Jury Instruction provides that “a person acts with intent to use a loaded firearm unlawfully . . . when his . . . conscious . . . purpose is to use that loaded firearm unlawfully against another, and that intent need only exist at the very moment that a person engages in an unlawful use of the firearm against another” … . But if the jury in this case was properly instructed on justification, it might have concluded that defendant acted lawfully when he shot and killed the victim in self-defense. If so, then the jury might have also concluded that defendant lacked the requisite intent (to use unlawfully) for the possession charge … . In other words, it is possible the jury here relied solely on evidence of the potentially justified shooting in finding defendant guilty of possession of the weapon with the intent to use it unlawfully.

To be clear, a jury finding of justification as to the use of a firearm does not preclude that jury from finding that the defendant nevertheless possessed the weapon with intent to use it unlawfully … . But with respect to the possessory offense, the jury must be instructed that, while justification is not a defense to that crime, in the event the jury finds that the shooting was justified, that lawful use of the weapon cannot be considered as proof of the unlawful intent element of the possession charge. For example, the jury’s intent determination may rest on defendant’s conduct “during the continuum of time that he possessed it prior to the shooting” … . People v Castillo, 2024 NY Slip Op 05817, CtApp 11-21-24

Practice Point: If a defendant is charged with murder and criminal possession of a weapon and is entitled to a jury instruction on the the justification defense, the jury should be instructed that it cannot find the defendant possessed the weapon with the intent to use it unlawfully solely on the basis of the shooting, if the shooting is deemed justified.

 

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