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THE PEOPLE DID NOT EXERCISE DUE DILIGENCE BEFORE STATING IN THE CERTIFICATE OF COMPLIANCE (COC) THAT COMPLAINANT DID NOT HAVE A CRIMINAL RECORD AND ANNOUNCING READINESS FOR TRIAL; IF DEFENSE COUNSEL KNEW OF COMPLAINANT’S CRIMINAL RECORD, THE DEFENSE WAS STATUTORILY REQUIRED TO ALERT THE PEOPLE TO THE DEFECT IN THE COC; MATTER REMITTED FOR DETERMINATION OF THE SPEEDY-TRIAL MOTION; EXTENSIVE TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the People, who initially erroneously asserted the complainant did not have a criminal record, did not comply with their discovery obligations and therefore the initial certificate of compliance (COC) and ready-for-trial announcement were illusory. The matter was sent back for the court to determine the motion to dismiss on speedy-trial grounds. On remittal County Court is to consider whether defense counsel met the statutory requirement that the defense alert the People to any defects in the COC of which defense counsel is aware. The two-justice dissent argued the People had exercised due diligence to determine whether the complainant had a criminal record and that, therefore, the initial COC indicating she had no convictions was not improper:

[The People’s] [r]eliance on the report provided by the OCSO [Ontario County Sheriff’s Office] may have been in good faith, but “while good faith is required, it is not sufficient standing alone and cannot cure a lack of diligence” … . The DA’s office, as a qualified agency entitled to access such information maintained pursuant to statute by DCJS [New York State Division of Criminal Justice Services], did not mention any pre-COC attempts to obtain the complainant’s criminal history record from DCJS (see Executive Law §§ 835 [9]; 837 [6]; 845-b), nor did the DA suggest that the People, prior to filing the initial COC, ever checked their own files to determine whether the complainant—their prime witness on whose testimony the success of the prosecution would depend—had a criminal history. Instead, the People relied entirely on a non-DCJS report provided by the OCSO that appeared to have been prepared by an unidentified third-party responsible for running background checks, and the People did not independently check the complainant’s repository to determine whether the complainant had a criminal history until prompted by defense counsel’s request for a judicial subpoena, at which point the People easily obtained and disclosed the complainant’s certificates of conviction … . Under these circumstances, we conclude that the People’s explanation for the discovery lapse was insufficient … .

… We … remit the matter to County Court to determine whether the People were ready within the requisite time period … , including the applicability and effect, if any, of defendant’s obligation under CPL 245.50 (4) (b)—which became effective during the pendency of the prosecution—to notify or alert the People to the extent he was aware of a potential defect or deficiency related to the COC, which awareness was a disputed issue before the court … . People v Mitchell, 2024 NY Slip Op 03256, Fourth Dept 6-14-24

Practice Point: The People must exercise due diligence in providing discovery. Here the failure to contact the NYS Division of Criminal Justice Services to determine whether the complainant had a criminal record rendered the ready-for-trial announcement illusory (the accompanying certificate of compliance erroneously stated the complainant had no prior convictions).

Practice Point: Defense counsel has a statutory duty to report to the People any defects in the certificate of compliance of which the defense is aware. Here it was alleged defense counsel knew of the complainant’s criminal record and did not alert the People. The court may consider the failure to notify the People of a defect in the certificate of compliance in determining a speedy-trial motion.

 

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ALTHOUGH FATHER FAILED TO COOPERATE WITH THE PLACEMENT OF HIS CHILDREN WHILE INCARCERATED; HE MADE SERIOUS EFFORTS TO RECONNECT WITH THE CHILDREN AFTER HIS RELEASE; FAMILY COURT SHOULD HAVE GRANTED A SUSPENDED JUDGMENT RATHER THAN PERMANENTLY TERMINATING HIS PARENTAL RIGHTS (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father, after his release from prison, made efforts to reconnect with his children which warranted a suspended judgment rather than permanent termination of his parental rights. While incarcerated father had not cooperated with efforts to place the children:

A suspended judgment “provides a brief grace period to give a parent found to have permanently neglected a child a second chance to prepare for reunification with the child” … . Notably, we may substitute our discretion for that of the trial court even in the absence of an abuse of discretion … , and here we conclude that a suspended judgment, rather than termination of parental rights, was in the children’s best interests … . At the time of the dispositional hearing—just two months after his release from prison—the father had found full-time employment, participated in weekly visitation with the children, had started communicating regularly with the children’s foster family regarding the children, and was in the process of finding housing and completing a mental health evaluation and parenting classes, while the children were reportedly happy to be visiting with the father regularly. “Given the child[ren]’s . . . young age, [the father’s] recommencement of regular visitation, . . . the sustained efforts on the part of [the father following his release from prison], and the Legislature’s express desire to return children to their natural parents whenever possible” … , we conclude that the father “should have been granted a ‘second chance’ in the form of a suspended judgment” … . Matter of Rodcliffe M., Jr. (Rodcliffe M., Sr.), 2024 NY Slip Op 03267, Fourth Dept 6-14-24

Practice Point: Family Court has the option of issuing a suspended judgment to give a parent a second chance to avoid termination of parental rights.

 

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DEFENDANT, PURSUANT TO CORRECTION LAW 168-A (3)(B), WAS DESIGNATED A “SEXUALLY VIOLENT OFFENDER” BASED SOLELY ON HIS OUT-OF-STATE CONVICTION OF A REGISTRABLE SEXUAL OFFENSE WHICH DID NOT INVOLVE VIOLENCE; THE CORRECTION LAW AS APPLIED TO DEFENDANT VIOLATED HIS RIGHT TO DUE PROCESS; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing County Court, over a concurrence and a two-justice dissent, determined designating defendant a “sexually violent offender” based solely upon an out-of-state conviction of a non-violent sexual offense violated defendant’s right to due process. The concurrence argued the Correction Law statute which allows such a “sexually violent offender” designation based on an out-of-state conviction is unconstitutional on its face:

We conclude that designating defendant as sexually violent merely because he had an out-of-state sex conviction requiring out-of-state registration, regardless of whether that underlying offense is violent—as is currently required by the text of Correction Law § 168-a (3) (b)—bears no rational relationship to the legitimate governmental interest of informing the public of threats posed by sex offenders. Indeed, the animating notification purpose of SORA presupposes that the information available to the public as a consequence of a SORA registration is accurate. Where, as here, an offender is designated a sexually violent offender merely because of an out-of-state conviction requiring out-of-state registration, the public is not accurately informed of the true risk posed by the offender. We further conclude that the designation of defendant as a sexually violent offender—augmenting defendant’s SORA registration period from a term of 20 years to his entire lifetime—merely because of the location of the registrable offense does not result in “a criminal designation that rationally fits [defendant’s] conduct and public safety risk” … . People v Malloy, 2024 NY Slip Op 03264, Fourth Dept 6-14-24

Practice Point: The Correction Law (section 168-a (3)(b)) pursuant to which defendant was designated a “sexually violent offender” based solely on an out-of-state registrable offense which did not involve violence was deemed to violate defendant’s right to due process of law.

 

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DEFENDANT WAIVED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY REFUSING TO ATTEND THE TRIAL AND DIRECTING DEFENSE COUNSEL NOT TO PARTICIPATE IN THE TRIAL; A TWO-JUSTICE DISSENT CONCLUDED DEFENSE COUNSEL’S FAILURE TO PARTICIPATE CONSTITUTED INEFFECTIVE ASSISTANCE (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, affirmed defendant’s conviction after he was tried in absentia. Defendant was properly denied a request for new counsel. Defendant then directed his attorney not to participate in the trial and defendant did not attend the trial. Defense counsel did not participate, except to make a motion for a trial order of dismissal outside the presence of the jury. The two-justice dissent would have reversed on ineffective assistance grounds, concluding that defense counsel should have participated in the trial, despite defendant’s directive:

Defendant contends that he was denied effective assistance of counsel. We reject that contention inasmuch as defendant waived the right to effective assistance of counsel by directing defense counsel not to participate in the proceedings … . * * * When the court had defendant brought into the courtroom and informed him that he had the right to be present for trial and participate in his defense, defendant again objected to the entire proceeding, reiterated that he had fired defense counsel, refused to answer the court’s questions, and renewed his request for substitute counsel. When the court responded that defendant would not receive another attorney but had the right to proceed pro se, defendant left the courtroom. Defense counsel subsequently informed the court that he intended to follow defendant’s directive not to participate in the proceedings. The trial was then held in defendant’s absence. Defense counsel was present but did not participate, except to move, outside the presence of the jury, for a trial order of dismissal.

We conclude that, under these circumstances, defendant waived his right to effective assistance of counsel … . Defendant’s “desire to prevent counsel’s participation, coupled with his adamant refusal to represent himself, translates into an intentional failure to avail himself of his constitutional right to a fair opportunity to defend against the State’s accusations” (id. [internal quotation marks omitted]), and he must therefore “accept the decision he knowingly, voluntarily and intelligently made, and the consequences of his intentional actions and choices” … . People v Lewis, 2024 NY Slip Op 03245. Fourth Dept 6-14-24

Practice Point: Defendant did not attend the trial and directed his attorney not to participate in the trial. Defense counsel did not participate. The majority held defendant had waived his right to effective assistance. A two-justice dissent argued defense counsel’s failure to participate constituted ineffective assistance and would have ordered a new trial.

 

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INCARCERATED FATHER SHOULD NOT HAVE BEEN AWARDED IN-PERSON VISITATION WITH HIS SON ONCE EVERY SIX MONTHS; FATHER HAD STABBED MOTHER WHILE SHE WAS HOLDING THE CHILD AND FATHER HAD HARASSED MOTHER DURING PERMITTED PHONE CALLS (FIRST DEPT).

The First Department, reversing Family Court, determined the award of in-person visitation by the child with the incarcerated father once every six months was not supported by the record:

Visitation with a noncustodial parent, including an incarcerated parent, is generally presumed to be in the best interests of the child … . However, that presumption is rebuttable, and “a demonstration that such visitation would be harmful to the child will justify denying such a request” … .

Here, the evidence was sufficient to overcome the presumption in favor of visitation. The father is incarcerated in connection with his conviction for robbing and stabbing the mother while she was holding their child in her arms. The record indicates that the father has been incarcerated for most of the child’s life and that the father has had no meaningful relationship with the child … . … [T]he now five-year-old child would have to travel several hours each way to visit the prison at which the father is incarcerated, and the child is not comfortable being in a car or being away from her mother for an extended period … .

… [M]other testified that the father has used his permitted phone-calls with the child to harass the mother, despite her order of protection against him … . The position advocated by the attorney for the child was also entitled to serious consideration and supports modification of the court’s order … . Matter of Leroy W. (Shanequa W.), 2024 NY Slip Op 03238, First Dept 6-13-24

Practice Point: Here the presumption incarcerated father was entitled to in-person visitation with his son was rebutted.

 

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UNDER THE CONSTITUTIONAL ERROR STANDARD, HEARSAY STATEMENTS ADMITTED IN THIS ATTEMPTED MURDER AND FIRST DEGREE ASSAULT TRIAL CONSTITUTED HARMLESS ERROR, CRITERIA EXPLAINED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the hearsay statements allowed in evidence in the attempted murder and assault first degree trial constituted harmless error:

Before this Court, the parties primarily focus on whether the erroneous admission of testimony reflecting the daughter’s statements was harmless. Applying the standard for constitutional errors, we conclude that it was. The evidence against defendant was overwhelming, particularly as it related to the critical issue of intent … .. Properly admitted evidence demonstrated that the victim and her daughter fled the home seeking help immediately after the attack; one of them called defendant the “culprit” as he attempted to flee; defendant had to be physically subdued by a bystander until his arrest; both women told several witnesses that defendant “stabbed” the victim; the weapon used was a large, sharp knife; medical records reflect that the victim reported to hospital staff that her husband had stabbed her; and those records, as well as a treating physician’s testimony, demonstrate that the victim sustained two serious knife wounds to the neck and chest, both over two inches in length and one of which was a direct stabbing so forceful that it fractured her breastbone. These facts leave no doubt that defendant acted with the intent to cause the victim serious physical injury. For that reason, the properly admitted evidence rendered the improper testimony recounting the daughter’s description of the attack redundant and therefore harmless, as “there is no reasonable possibility that the error might have contributed to defendant’s conviction” … .

The errors in admission of statements by the 911 caller and defendant’s son were also harmless and do not warrant a new trial. Because the statements supplied information properly provided to the jury through several testifying witnesses and the victim’s medical records, there is no “significant probability . . . that the jury would have acquitted the defendant had it not been for” their admission … . People v Vargas, 2024 NY Slip Op 03200, CtApp 6-13-24

Practice Point: Here the Court of Appeals applied the constitutional error standard and found the hearsay statements admitted at trial constituted harmless error because the evidence of guilt was overwhelming.

 

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DEFENDANT WAS CONVICTED OF CRIMINAL POSSESSION OF A WEAPON FIRST DEGREE, THE WEAPON BEING AN IMPROVISED EXPLOSIVE DEVICE (IED); THE ATTEMPTED CRIMINAL POSSESSION OF A WEAPON THIRD DEGREE COUNT IS AN INCLUSORY CONCURRENT COUNT WHICH MUST BE DISMISSED; COUNTY COURT IMPROPERLY RESENTENCED DEFENDANT IN HIS ABSENCE, REQUIRING VACATION OF THE SENTENCE (THIRD DEPT).

The Third Department determined (1) the attempted criminal possession of a weapon third degree must be dismissed as an inclusory concurrent count of criminal possession of a weapon first degree and (2) the judge’s resentencing the defendant on the attempted criminal possession of a weapon third conviction in defendant’s absence was improper and warranted vacation of the sentence. The defendant was convicted of possessing an improvised explosive device (IED), essentially a bomb:

A person is guilty of attempted criminal possession of a weapon in the third degree “when, with intent to commit a crime, he [or she] engages in conduct” wherein “[s]uch person possesses any explosive or incendiary bomb [or] bombshell” (Penal Law §§ 110.00, 265.02 [2]). The terms explosive substance, explosive and incendiary bomb are not defined in the Penal Law. Explosives are, however, defined in the Labor Law as “gunpowder, powders used for blasting, high explosives, blasting materials, detonating fuses, detonators, pyrotechnics and other detonating agents, fireworks and dangerous fireworks as defined in section 270.00 of the [P]enal [L]aw, smokeless powder and any chemical compound or any mechanical mixture containing any oxidizing and combustible units, or other ingredients in such proportions, quantities, or packing that ignition by fire, friction, concussion, percussion or detonation of any part thereof may cause and is intended to cause an explosion” (Labor Law § 451). The terms explosive or incendiary bomb were added to Penal Law § 265.02 (2) in 1970 to cover Molotov cocktails within the meaning of the statute … . We agree with defendant that it would be impossible to commit the greater crime — criminal possession of a weapon in the first degree — without concomitantly, by the same conduct, committing the lesser crime involving possession of an explosive, incendiary bomb or bombshell. Thus, the conviction for attempted criminal possession of a weapon in the third degree must be vacated and dismissed as an inclusory concurrent count … . People v Graham, 2024 NY Slip Op 03104, Third Dept 6-6-24

Practice Point: Here the attempted criminal possession of a weapon third degree was dismissed as an inclusory concurrent count of criminal possession of a weapon first degree.

Practice Point: Resentencing the defendant in defendant’s absence is a violation of defendant’s constitutional and statutory rights to be present and requires vacation of the sentence.

 

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DEFENDANT SUFFICIENTLY DEMONSTRATED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN SO INFORMED; REVERSED AND REMITTED FOR A HEARING ON THE MOTION TO VACATE THE GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (THIRD DEPT).

The Third Department, reversing County Court and ordering a hearing on defendant’s motion to vacate his guilty plea on ineffective assistance grounds, determined defendant, a citizen of Haiti, sufficiently demonstrated he had never been informed of the deportation consequences of the guilty plea and he would not have pled guilty if he had been so informed:

… [D]efendant proffered a sworn affidavit wherein he averred that counsel did not inquire as to whether defendant was a citizen, never discussed with defendant his immigration status nor did he advise defendant that he could be deported as a result of his guilty plea. Defendant also asserted that, during the plea proceeding, County Court never inquired about whether he was a United States citizen, his immigration status or advised that a conviction could result in deportation. This assertion is supported by the record, which reveals no mention of citizenship or deportation at any point during defendant’s plea or sentencing … . Defendant also averred that he moved to the United States approximately 20 years ago, when he was six years old, and that his entire family resides in this country … . Furthermore, defendant asserted that he would not have pleaded guilty and would have insisted on going to trial if he had been informed that this conviction could result in deportation … . Thus, defendant sufficiently alleged that counsel failed to provide him with any information regarding deportation consequences of his plea and that defendant was prejudiced because he would not have pleaded guilty had he been advised of these consequences, such that a hearing is warranted … . Indeed, given defendant’s affidavit as well as the record of the plea proceeding, there is a genuine concern that, as defendant asserts, he was never advised of the deportation consequences of his plea. Accordingly, this matter must be remitted to County Court for a hearing on defendant’s CPL 440.10 motion. People v Philippe, 2024 NY Slip Op 03105, Third Dept 6-6-24

Practice Point: The failure to inform a non-citizen defendant of the deportation consequences of a guilty plea can constitute ineffective assistance.

Practice Point: A non-citizen defendant who shows he was not informed of the deportation consequences of the guilty plea and sufficiently demonstrates he would not have pled guilty if he had been so informed is entitled to a hearing on his motion to vacate the guilty plea.

 

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A SANDOVAL RULING ADDRESSED THE ADMISSIBILITY OF LIMITED REFERENCE TO DEFENDANT’S PRIOR CONVICTION ON CROSS-EXAMINATION; AT THE TIME OF THE ALLEGED RAPE, THE DEFENDANT TOLD THE VICTIM HE HAD SPENT SEVERAL YEARS IN PRISON; WITHOUT SEEKING A PRIOR VENTIMIGLIA RULING, THE PEOPLE INFORMED THE JURY ABOUT DEFENDANT’S “YEARS IN PRISON” STATEMENT TO THE VICTIM IN THE OPENING; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, ordering a new trial, determined the prosecutor’s introduction of a statement defendant made to the victim about his prior incarceration warranted reversal of defendant’s rape conviction. The prosecutor had not sought a prior “Ventimiglia” ruling on the admissibility of the statement. The statement was the subject of a prior Sandoval ruling which allowed limited reference to the prior conviction in cross-examination of the defendant. The trial judge, after hearing argument on the “Ventimiglia” issue after the statement had been introduced, determined the statement would have been ruled admissible had a prior request for a ruling been made:

In ruling on the People’s proffer, County Court fashioned a Sandoval compromise that limited the scope of questioning to the existence of the conviction and when it occurred, with no information about “the title, the classification, the violent nature under the Penal Law [or] the sentence . .. as well as underlying facts, unless the defense were to open the door with regard to those issues.” In spite of that ruling, in their opening statement, the People stated that, during the encounter but prior to any sexual assault, defendant “disclosed something unexpected, something that jarred [the victim]”; specifically, that “he had spent several years in prison.” * * *

We find that the People’s introduction of the statement referencing defendant’s prior incarceration without first seeking an advanced Ventimiglia ruling was improper … . While County Court’s Sandoval compromise was limited to the introduction of such evidence on cross-examination, it directly addressed the proof at issue; specifically, the allowable reference to defendant’s prior conviction. To this point, the People’s contention that the evidence was not subject to a prior ruling as it was part of the criminal conduct itself runs contrary to the fact that the Sandoval proffer on this exact evidence before trial reflected that it was subject to a discretionary determination as to whether the probative value outweighed the risk for real prejudice. Thus, the People effectively deprived defendant of the benefit of such analysis prior to introduction of the evidence by circumventing the Sandoval ruling … . People v Osman, 2024 NY Slip Op 03106, Third Dept 6-6-24

Practice Point: Here, at the time of the alleged rape, defendant told the victim he had spent several years in prison. Although the People sought a Sandoval ruling on the admissibility of evidence of defendant’s prior conviction during defendant’s cross-examination, the People did not seek a “Ventimiglia” ruling on the admissibility of such evidence in its direct case. The People’s reference to defendant’s statement in their opening was deemed reversible error.

 

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THE TRIAL JUDGE DID NOT PROCEED TO STEP THREE OF THE BATSON ANALYSIS OF THE PEOPLE’S PEREMPTORY CHALLENGE TO A JUROR; MATTER REMITTED FOR THAT PURPOSE (THIRD DEPT).

The Third Department, remitting the matter for findings on the Batson analysis of the People’s peremptory challenge to a juror, determined the judge did not follow the three-step procedure mandated by Batson. Defense counsel met the criteria for the initial step by noting that the juror appeared to be the only person of Hispanic descent on the jury (both defendant and the victim were of Hispanic descent) and the prosecutor had not asked the juror a single question. The prosecutor met the criteria for the second step by arguing the juror was laughing and would not take the case seriously. It was up to the judge at that point to evaluate defense counsel’s argument that the prosecutor’s reason was pretextual. The matter was sent back for the judge’s ruling on step three:

This record confirms that the court made only a step one decision, and did not make any determination on the issue of pretext, implicit or otherwise … .

This is a critical error because “[a] trial court that resolves a Batson challenge without proceeding to [the] third step ‘falls short of [providing] a meaningful inquiry into the question of discrimination’ ” … .* * *

The trial court’s role in the analysis is particularly important where, as here, the race-neutral reasons proffered by the People were based upon the challenged juror’s demeanor — an issue that Supreme Court was in a unique position to verify and which is not clearly established in the appellate record … . Given the failure to abide by the Batson protocol, we withhold decision and remit this case to Supreme Court to enable the trial judge who presided over this matter to determine “whether the race-neutral reason proffered by [the People] was pretextual”  … . People v Cruz, 2024 NY Slip Op 03108, Third Dept 6-6-24

Practice Point: Here, the judge’s failure to make a finding whether the prosecutor’s reason for a peremptory juror-challenge was pretextual (the third step in the Batson protocol) resulted in remittal for that purpose.

 

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