The Court of Appeals, in a brief memorandum decision, affirmed the Appellate Division’s reversal of defendant’s conviction due to ineffective assistance of counsel, noting counsel’s failure to invoke the court’s prior preclusion order and the presentation of an alibi defense for the wrong day. Judge Pigott wrote a long and detailed dissent. People v Jarvis, 2015 NY Slip Op 02869, CtApp 4-7-15
The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a partial dissent, resolved a split among the departments and determined a defendant cannot be convicted of both intentional murder and depraved indifference murder where there is a single victim. It was alleged that the defendant fired his weapon at one person, but killed an uninvolved bystander who was several buildings away. The trial judge submitted both the intentional and depraved indifference murder theories to the jury in the conjunctive (not in the alternative). Defendant was convicted of both offenses. The Court of Appeals’ analysis turned on “transferred intent.” Conviction under New York’s “transferred intent” theory requires the jury to conclude the defendant acted intentionally. Intentional murder, even where “transferred intent” is involved, is incompatible with depraved indifference murder, which is, by definition, not intentional. Where there is a single victim, only one or the other mental state can apply, not both. The Court of Appeals further determined the trial court erred when it allowed in evidence the grand jury testimony of a witness who refused to testify, purportedly out of fear. There was not sufficient evidence connecting the defendant to any actions or words aimed at instilling fear in the witness. A new trial was ordered for the intentional, depraved indifference and attempted murder counts:
The purpose of the transferred intent theory is “to ensure that a person will be prosecuted for the crime [that person] intended to commit even when, because of bad aim or some other ‘lucky mistake,’ the intended target was not the actual victim” … . Given this stated goal, the Court has cautioned that transferred intent “should not be employed to ‘multiply criminal liability, but to prevent a defendant who has committed all the elements of a crime (albeit not upon the same victim) from escaping responsibility for that crime” … . Hence, it should be applied where a defendant “could not be convicted of the crime because the mental and physical elements do not concur as to either the intended or actual victim” … .
… Whether based on the defendant’s conscious objective towards the intended victim, or on a transferred intent theory directed at a different, and actual, victim, defendant’s conviction depends on a jury finding that defendant harbored the requisite intentional mental state. Defendant cannot then also be guilty of the same murder premised on a depraved state of mind.
That the People had at their disposal two bases by which to establish the requisite state of mind — transferred intent and depraved indifference — does not permit the People to seek multiple convictions for the one murder for which the defendant was charged, prosecuted and tried. To hold otherwise is contrary to “the basic principle that a defendant should not be convicted and punished more than once for conduct which, although constituting only one prohibited act, may because of statutory definition, be theorized as constituting separate criminal acts” … . Under New York law, defendant is held accountable for the murder he committed, even if it was not the one he set out to complete (Penal Law 125.25 [1]). People v Dubarry, 2015 NY Slip Op 02865, CtApp 4-7-15
The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissent, determined that a police officer’s objectively reasonable mistake about the law will not invalidate a stop based upon that mistake. Here the defendant was stopped by the police after she rolled through a stop sign at the exit of a supermarket parking lot. The defendant was ultimately arrested and charged with driving while intoxicated. It turned out that the stop sign, although regulation size and color, was not registered with the town and was therefore not “legally authorized.” The local court dismissed the charges, finding the initial vehicle stop, based upon a mistake of law, improper. The Court of Appeals reversed, holding the mistake of law was “objectively reasonable.” The court noted that a police officer cannot be expected to know the location of every “unregistered” stop sign in his/her jurisdiction. The court made it clear, in deciding whether the actions taken by the police were objectively reasonable, there should be no distinction between mistakes of fact and mistakes of law:
…[W]e look to the reasonableness of the officer’s belief that defendant violated the Vehicle and Traffic Law, without drawing any distinction between mistakes of fact and mistakes of law. * * * … [W]e are not saying that it would have been objectively reasonable for the arresting officer to have claimed ignorance of the requirement in Vehicle and Traffic Law § 1100 (b) that a stop sign in a parking lot be registered to be valid. We are saying that the stop was nonetheless constitutionally justified because the officer was not chargeable with knowing each and every stop sign that was registered under the Newark Village Code. People v Guthrie, 2015 NY Slip Op 02867, CtApp 4-7-15
The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a defendant who has been deemed unfit to proceed to trial following a psychiatric examination cannot be subjected to a parole violation hearing. The defendant, who was on lifetime parole for murder and had been committed to the custody of the Office of Mental Health (OMH), assaulted a fellow patient. After a psychiatric examination, the defendant was deemed unfit to proceed to trial on charges stemming from the assault. Thereafter the Department of Corrections and Community Services (DOCCS) brought parole revocation proceedings against the defendant. The defendant was transferred to the custody of DOCCS and, after a hearing, his parole was revoked and he was incarcerated. The Appellate Division (reversing Supreme Court) granted the defendant’s petition to annul the parole revocation, and returned the defendant to parole. The Court of Appeals affirmed, holding that subjecting the defendant to the parole revocation hearing, after defendant had been deemed mentally incompetent, violated defendant’s right to due process. The Court of Appeals noted that its ruling may result in the release of persons found unfit for trial, something only the legislature can remedy:
It is, of course, well established — as a matter of common law and also of due process — that “a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial” … . The State contends that parole revocation proceedings do not raise the same concerns because parole revocation is not part of a criminal prosecution.
It is true that parole revocation deprives an individual only of “a restricted form of liberty” and thus implicates “some form of due process [but] not the full panoply of rights due a defendant in a criminal proceeding” … . Just as due process requires us to safeguard the liberty of parolees, we must also recognize the state’s strong interest in effectively managing parolees without unduly burdensome procedural restraints … . However, in balancing these competing interests, we conclude that several of the reasons underlying the bar against prosecuting a mentally incompetent defendant apply also to parole revocation hearings. Clearly salient are constitutional concerns about the fundamental fairness of a proceeding in which a defendant who is unable to make decisions about his defense may be returned to prison. But foremost is the concern already mentioned, about the accuracy of the proceedings. An incompetent parolee is not in a position to exercise rights, such as the right to testify and the opportunity to confront adverse witnesses (see 9 NYCRR 8005.18 [b] [2], [4]), that are directly related to ensuring the accuracy of fact-finding. It is true, as the State emphasizes, that the parolee is guaranteed a right to representation by counsel at the revocation hearing. But representation is not enough. A parolee must be able to provide the factual underpinnings of the presentation.
We conclude, therefore, that holding a parole revocation hearing after a court has deemed the parolee to be mentally incompetent violates the due process provision in our State Constitution… . Matter of Lopez v Evans, 2015 NY Slip Op 02868, CtApp 4-7-15
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
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
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
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
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
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
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