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Failure to Include Restitution in Plea Agreement Required that the Sentencing Court Give the Defendant the Opportunity to Withdraw Her Plea Before Including Restitution in the Sentence

The Second Department determined County Court erred when it, in the absence of a prior agreement, imposed restitution as part of defendant’s sentence without giving the defendant the opportunity to withdraw her plea:

Although a court is free to reserve the right to order restitution as part of a plea agreement, the County Court did not do so here. Instead, at the very end of the sentencing proceeding, after imposing the agreed-upon terms, the court briefly turned to other matters prior to stating that it was also signing restitution judgment orders.

The defendant contends, among other things, that, before adding restitution to the sentence, the County Court should first have given her the option to withdraw her plea of guilty or to accept a sentence including restitution. Preliminarily, we note that, in light of the fact that the court did not give the defendant a sufficient opportunity to withdraw her plea of guilty before imposing restitution, the defendant’s claim is not subject to the preservation requirement … . Moreover, we agree with the defendant that the County Court erred … . People v Molinaro, 2015 NY Slip Op 01820, 2nd Dept 3-4-15

 

DLRA Provision Terminating Sentences After Three Years of Unrevoked Parole Did Not Apply to Non-Drug Related Offense by “Merger”

The Second Department, in a full-fledged opinion by Justice Rivera, determined that the provision of the Drug Law Reform Act (DLRA) [Executive Law former 259-j (3-a)] which allowed the termination of sentences for enumerated drug crimes after three years of unrevoked parole did not apply (under a merger theory) to a non-drug conspiracy offense where the maximum sentence for the conspiracy had not expired at the time the three-year-unrevoked-parole mark for the drug offenses had been reached:

The application of Executive Law former § 259-j(3-a) to this petitioner did not squarely fit within the express purpose of the 2004 DLRA. The 2004 DLRA was intended to grant specific relief to a clearly identified and circumscribed class, namely, “low level non-violent drug offenders” … . A “manager of a drug ring” cannot be deemed to be the low level offender contemplated by the statute. Further, it is unreasonable to perceive someone convicted of conspiracy to murder as “nonviolent.”

Notwithstanding the foregoing, the petitioner seeks more than the benefit heretofore conferred upon him by the 2004 DLRA and Executive Law former § 259-j(3-a). He seeks, in effect, to bootstrap the sentence imposed on the conspiracy conviction to the sentences imposed on the drug-related convictions in an attempt to discharge the remaining term thereof. However, this attempt must fail for the following reasons.

First, Executive Law former § 259-j(3-a) applies only to the specific drug-related felony offenses set forth in articles 220 and 221 of the Penal Law (see Correction Law § 205[4]). That statute cannot be reasonably construed to terminate the petitioner’s sentence on the conspiracy conviction, a non-drug-related conviction. The outcome sought by the petitioner is contrary to established precedent. Courts applying the DLRA are “not given the discretion to fashion new sentences or add terms of imprisonment, but are constrained to make an existing sentence determinate in the manner dictated by the DLRA” … .

Second, we disagree with the petitioner’s reading of Penal Law § 70.30(1) … . * * * The express language of Penal Law § 70.30(1) states that the maximum terms shall “be satisfied by discharge of the term which has the longest unexpired time to run.” … [A]t the time that [petitioner] became eligible for relief under Executive Law former § 259-j(3-a), none of the terms had expired or been discharged. The application of Executive Law former § 259-j(3-a) operated to effectively shorten the maximum term of his drug-related sentences (i.e., life) to the approximately 16 years that the petitioner served. Thus, upon the application of the early-termination provision under Executive Law former § 259-j(3-a), the maximum term of his sentence on the conspiracy conviction, which was 25 years, had the longest unexpired time to run (see Penal Law § 70.30[1][a]). People ex rel. Baez v Superintendent, Queensboro Corr. Facility, 2015 NY Slip Op 01827, 2nd Dept 3-4-15

 

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People’s Failure to Provide Timely Notice of the Intent to Present Witnesses to Rebut the Testimony of Defendant’s Alibi Witness Required Reversal

The Second Department reversed defendant’s conviction because the prosecutor failed to show good cause for her failure to provide timely notice of rebuttal witnesses.  Defendant had provided a “notice of alibi.”  Defendant’s alibi witness was his girlfriend, who testified defendant was home with her at the time of the offense.  The prosecutor did not provide reciprocal notice of rebuttal witnesses who would testify that cell phone records demonstrated defendant was not at home with his girlfriend at the time of the offense.  In spite of the lack of timely notice, the trial court allowed the rebuttal testimony after an adjournment:

CPL 250.20(1) provides, among other things, that within eight days of service of a demand by the People, a defendant “must” serve upon the People a “notice of alibi,” and that “[f]or good cause shown, the court may extend the period for service of the notice.” The reciprocal provision, CPL 250.20(2), provides, among other things, that “[w]ithin a reasonable time after receipt of the defendant’s witness list but not later than ten days before trial,” the People “must” serve and file a list of the witnesses the People propose to offer in rebuttal to discredit the defendant’s alibi at the trial, and that “[f]or good cause shown, the court may extend the period for service” of the People’s witness list.

CPL 250.20(3) provides that if the defendant calls an alibi witness at trial without having first served the requisite notice pursuant to CPL 250.20(1), the court “may exclude any testimony of such witness,” or “may in its discretion receive such testimony, but before doing so, it must, upon application” of the People, “grant an adjournment not in excess of three days” (CPL 250.20[3]). CPL 250.20(4) provides that the provisions of subdivision (3) “shall reciprocally apply” when the People seek to offer alibi rebuttal witnesses without having given the requisite notice pursuant to CPL 250.20(2).

Here, the People contend, in effect, that, unlike CPL 250.20(2), which requires the People to show “good cause” for an extension of time to serve the list of alibi rebuttal witnesses, CPL 250.20(3) and (4) do not require such a showing for the court to exercise its discretion in receiving such testimony absent any compliance with the notice requirement. We disagree … . A construction of the statute which requires good cause to be shown before trial, but not during trial, when late notice would be most prejudicial, is both contrary to the plain meaning of the statute, as well as contrary to the intent of the Legislature in amending the statute to comply with the Due Process Clause … . To hold otherwise would mean that CPL 250.20(3) and (4) completely eviscerate the timeliness of notice requirements of CPL 250.20(1) and (2). People v Crevelle, 2015 NY Slip Op 01661, 2nd Dept 2-25-15

 

ess Required Reversal

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Insufficient Foundation for Introduction of Grand Jury Testimony as Past Recollection Recorded—No Showing Recollection Was “Fairly Fresh” and Accurate at the Time of the Grand Jury Appearance

The First Department, in a full-fledged opinion by Justice Andrias (disagreeing at length with the rationale of the concurring opinion), reversed defendant’s perjury conviction because a witness’ (Woods’) grand jury testimony was wrongly admitted under the past recollection recorded hearsay exception.  Woods testified and remained available to testify when the hearsay exception was invoked.  Woods claimed that he did not know whether he had actual knowledge of past events or whether his memory stemmed from the many “prep” discussions he had had with the prosecutor over a six-year period. There was a six-year gap between the underlying events and Woods’ grand jury appearance. The First Department determined the prosecutor did not lay a sufficient foundation for admission of the grand jury testimony in that it was not shown that Woods’ recollection was “fairly fresh” at the time of the grand jury testimony:

Although there is no rigid rule as to how soon after the event the statement must have been made …, here the assurance of the accuracy of the recordation and its trustworthiness are diminished by the six- year gap between the underlying events, which concluded in 2000, and Woods’s grand jury testimony in 2006 * * * .

The People argue that Woods’s testimony is admissible despite the six-year gap because the trial court found that he was “feigning a lack of memory.” However, even if Woods’s lack of memory demonstrates that he was unable or unwilling to testify, it does not abrogate the People’s obligation to satisfy the foundational requirement that the recollection was fairly fresh when [*5]recorded or adopted.

Nor was Woods able to “presently testify that the record correctly represented his knowledge and recollection when made” … . Although Woods testified that he believed his grand jury testimony was truthful and accurate, he also testified that “[a]s I sit here right now, I can’t tell you if everything that’s in that Grand Jury that I said was … accurate”; that although he “wanted to be accurate” and “wouldn’t testify untruthfully,” he could not swear that “what’s in the … Grand Jury … was exactly what happened,” and that he could not “remember [if] … what I was talking to was my clear recollection or … was resulting from [my prep sessions] with people.” Thus, Woods’s testimony reflects that although he would not have purposefully lied to the grand jury, he could not presently state that his testimony accurately reflected his own recollection of the events in question at the time that he testified before it … . People V DiTommaso, 2015 NY Slip Op 01592, 1st Dept 2-14-15

 

Failure to Make a Finding of Necessity Re: Restraining Defendant at Trial with a Stun Belt Is Not a Mode of Proceedings Error—Error Must Be Preserved by Objection (No Objection Here)

The Court of Appeals determined that the trial court’s failure to make a finding of necessity re: the defendant’s wearing a stun belt (a restraint device) at trial was not a mode of proceedings error.  Therefore the error must be preserved by objection.  Here the defendant consented to the restraint.  People v Cooke, 2015 NY Slip Op 01557, CtApp 2-24-15

 

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Bare Allegation in an Attorney Affidavit that, Upon Information and Belief, the Deputies Lacked Probable Cause to Arrest Defendant, Not Enough to Justify a Hearing on a Suppression Motion

In finding defendant’s motion to suppress was properly denied without a hearing, the Third Department explained what is required to warrant a hearing:

“A motion seeking suppression of evidence ‘must state the ground or grounds of the motion and must contain sworn allegations of fact . . . supporting such grounds'” … . A hearing in this regard is neither “automatic [n]or generally available [simply] for the asking” … and, except in circumstances not present here (see CPL 710.60 [3] [b]; 710.20 [3], [6]), the trial court “may summarily deny the motion if the papers do not allege a legal basis for suppression or if the factual allegations do not as a matter of law support any alleged ground” … . Here, in support of her suppression motion, defendant tendered the affidavit of her attorney, who merely asserted — upon information and belief — that the deputies in question lacked probable cause to arrest defendant. This “bare allegation of a lack of probable cause, without any factual support, was insufficient to require a hearing” … . People v Briskin, 2015 NY Slip Op 01493, 3rd Dept 2-19-15

 

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Appellant Entitled to a Hearing on His Motion to Vacate His Conviction—Questions of Fact Whether Witness Testimony Was Induced by Threats and/or Promises Not Disclosed to the Defense at Trial

The Third Department determined appellant, who had been convicted of second degree murder, was entitled to a hearing re: a potential Brady violation.  Appellant was an inmate at the time of the incident and the witnesses to the incident were other inmates Appellant, in a motion to vacate the conviction, presented affidavits from witnesses to the incident who averred they were threatened or offered promises by prison personnel in exchange for their testimony.  The court noted there was a question of fact whether the prosecution could be held responsible for the actions of prison personnel (relevant information may have been outside the control of the prosecution):

…[D]efendant was entitled to a hearing on his motion. Due process requires that the People disclose to the defendant any evidence in their possession that is “material to guilt or punishment” … . The People must disclose evidence relating to a witness’s credibility, including “the ‘existence of an agreement between the prosecution and a witness, made to induce the testimony of the witness'” … . “To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material” … . When a specific request has been made for the evidence that was withheld, “the materiality element is established provided there exists a ‘reasonable possibility’ that it would have changed the result of the proceedings” … . People v Lewis, 2015 NY Slip Op 01492, 3rd Dept 2-19-15

 

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Under the Criteria Recently Announced by the Court of Appeals, the Proof Was Not Sufficient to Justify Placing the Respondent Under Strict and Intensive Supervision in the Community

The First Department, in a full-fledged opinion by Justice Renwick, applied the criteria recently announced by the Court of Appeals and determined the state had not presented sufficient proof to justify placing the respondent, a sex offender who had served 33 years in prison, under strict and intensive supervision (SIST) in the community.  The opinion is very detailed and defies summary.  Some of the main points follow:

The State of New York brought this Mental Hygiene Law (MHL) article 10 proceeding seeking civil commitment of respondent as a dangerous sex offender. This proceeding, however, preceded the recent pronouncement by the Court of Appeals in Matter of State of New York v Donald DD. (24 NY3d 174 [2014]). In Donald DD., the Court of Appeals limited the evidence that can be used to civilly commit a convicted sex offender, and clarified that a sex offender cannot be subject to civil commitment solely because the individual is diagnosed as suffering from an abnormality that predisposes him to commit sexual offenses. In so doing, the Court of Appeals clarifies the line between civil commitment and penal commitment. In this case, we heed this clarification by dismissing this MHL article 10 proceeding on the ground that the State has failed to establish by clear and convincing evidence that respondent has or will have serious difficulty controlling his behavior. * * *

…[T]he jury found that respondent suffers from a mental abnormality qualifying him for civil management under MHL article 10. Following a dispositional hearing where the State experts and respondent testified, Supreme Court found that respondent is not a dangerous sex offender in need of confinement, and ordered instead that he submit to strict and intensive supervision and treatment (SIST) in the community. * * *

…[T]he statute requires that all offenders subject to civil management, including SIST, must be found to have a mental abnormality as a threshold qualification. MHL § 10.03(i) defines a mental abnormality as “a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct.”

Article 10 authorizes civil confinement only of those sex offenders whose “mental abnormality” involves such a strong disposition to commit sexual misconduct and an inability to control behavior that the person is dangerous to society (MHL §§ 10.03[e], 10.07[f]). MHL article 10, as written, is also designed to provide courts with a mechanism for deciding whether the mental condition of a sex offender suffering from a mental abnormality is so extreme that the more restrictive alternative of confinement is warranted or whether, on the other hand, the least restrictive option, namely SIST, is permitted (see MHL § 10.07[f]).

…[I]n Donald DD. …, the Court of Appeals clarified that the State must prove, separate from a finding of mental abnormality required for civil commitment, that the defendant has serious difficulty controlling his behavior. Specifically, the State must demonstrate that as a result of the “serious mental illness, abnormality or disorder,” a person also would have serious difficulty controlling his behavior if released (24 NY3d at 187, 189).  Matter of State of New York v Frank P, 2015 NY Slip Op 01551, 1st Dept 2-19-15

 

munity

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Defendant’s Having Unprotected Sex with Partner After Defendant’s HIV-Positive Diagnosis Did Not Constitute “Depraved Indifference”

The Court of Appeals determined that the “depraved indifference” standard in the first degree reckless endangerment statute was not met by the facts.  Defendant had (consensual) unprotected sex with his partner after the defendant was diagnosed as HIV positive.  The defendant’s partner was subsequently diagnosed as HIV positive:

Depraved indifference is a culpable mental state which means the same thing in the murder and reckless endangerment statutes … . As we explained in People v Suarez (6 NY3d 202, 212 [2005]), “[a] defendant may be convicted of [a depraved indifference crime] when but a single person is endangered in only a few rare circumstances”; specifically, where the defendant exhibits “wanton cruelty, brutality or callousness directed against a particularly vulnerable victim, combined with utter indifference to the life or safety of the helpless target of the perpetrator’s inexcusable acts” (id. at 213). Here, there is no evidence that defendant exposed the victim to the risk of HIV infection out of any malevolent desire for the victim to contract the virus, or that he was utterly indifferent to the victim’s fate .. . People v Williams, 2015 NY Slip Op 01485, CtApp 2-19-15

 

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Criteria for a Valid Warrantless Search of a Home Pursuant to the Emergency Exception Described—The Court Noted that One of the Criteria, i.e., that the Police Not Be Primarily Motivated by Intent to Arrest and Seize Evidence, No Longer Applies to Claims Under the US Constitution and May Only Apply to Claims Under the New York Constitution

In affirming County Court’s denial of defendant’s suppression motion, the Second Department explained the application of the emergency exception to the warrant requirement.  The court noted that there is now a question whether one of the criteria for a valid warrantless search pursuant to the emergency exception, i.e., that the police are not primarily motivated by the intent to arrest and seize evidence, no longer applies under the Fourth Amendment to the US Constitution, and may only apply to claims under the New York Constitution:

“[Al]though warrantless entries into a home are presumptively unreasonable'” …, a warrantless search and seizure in a protected area may be lawful, under some circumstances, pursuant to the emergency doctrine (see People v Mitchell, 39 NY2d 173, 177-178…). The exception applies where the police (1) have “reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property,” (2) are “not . . . primarily motivated by intent to arrest and seize evidence,” and (3) have a “reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched” (People v Mitchell, 39 NY2d at 177-178…).

The United States Supreme Court has held that the subjective intent of the police is not relevant in determining the reasonableness of police conduct under the Fourth Amendment to the United States Constitution (see Brigham City v Stuart, 547 US 398, 403). Consequently, the second prong of Mitchell is now relevant, if at all, only to claims raised under the New York Constitution (see NY Const, art I, § 12). We need not determine in this case whether the second prong of Mitchell is still viable under the New York Constitution … , because we conclude that the actions of the police officers were permissible under both Brigham City and Mitchell … . People v Loucks, 2015 NY Slip Op 01471, 2nd Dept 2-18-15

 

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