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Elements of Florida “Theft” Statute and New York Larceny Statutes Are Different—Florida Conviction Cannot Serve as a Predicate Felony in New York

The Third Department, using its “interest of justice” review power, determined defendant’s Florida conviction could not serve as a predicate felony in New York because the relevant Florida statute included an element not included in the relevant New York statute:

Here, the information contained with the second felony offender notice indicates that, in 2001, defendant was convicted in Florida of a felony “theft” in the third degree (see Fla Stat Ann § 812.014). Under the applicable Florida penal statute, it is a crime to “knowingly obtain[] or use[], or endeavor[] to obtain or to use, the property of another with intent to, either temporarily or permanently . . . [d]eprive the other person of a right to the property or a benefit from the property . . . [or a]ppropriate the property to his or her own use or to the use of any person not entitled to the use of the property” (Fla Stat Ann § 812.014 [1] [a], [b] [emphasis added]). In comparison, New York’s larceny statutes do not contain analogous language with regard to mere temporary deprivations or appropriations (see Penal Law §§ 155.00 [3], [4]; 155.05 [1]…). Thus, the Florida crime undoubtedly contains an element that is not included in New York’s larceny offenses and, as a result, the Florida conviction is not sufficiently analogous to a New York felony to serve as a predicate felony for purposes of Penal Law § 70.06 … . People v Parker, 2014 NY Slip Op 07021, 3rd Dept 10-16-14

 

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People Did Not Meet Their Burden of Demonstrating Developmentally Disabled Respondent, Who Had Been In the Care and Custody of the OPWDD Since His Acquittal of a Criminal Charge By Reason of Mental Disease or Defect, Was “Mentally Ill”—Respondent’s Release Was Appropriate

Respondent is mildly developmentally disabled and was committed to the care and custody of the Office for People with Developmental Disabilities (OPWDD) after acquittal of a criminal charge by reason of mental disease or defect.  The Third Department determined Supreme Court properly ruled respondent could be released to a supervised intermediate care facility subject compliance with a service plan.  The court determined the People did not meet their burden of proving respondent met the relevant statutory definition of “mentally ill,” i.e., the definition which applies to the developmentally disabled:

If the court finds that a person committed pursuant to CPL 330.20 does not have a dangerous mental disorder but is mentally ill, that person must be confined in a nonsecure facility (see CPL 330.20 [12]…). If the court finds that the person is no longer mentally ill, it must release the person with an order of conditions (see CPL 330.20 [12]…). For purposes of CPL 330.20, a person with a developmental disability is considered “mentally ill” if he or she “is in need of care and treatment as a resident in the in-patient services of a developmental center or other residential facility for the . . . developmentally disabled under the jurisdiction of [OPWDD]” (CPL 330.20 [1] [d]). The DA had the burden to prove by a preponderance of the evidence that respondent met the statutory definition of a “mentally ill” person (see CPL 330.20 [12]…]). * * *

…[T]he statute provides a different definition of “mentally ill” for individuals who have developmental disabilities in addition to one or more diagnosed mental disorders (see CPL 330.20 [1] [d]). For those individuals with developmental disabilities, the statute does not require that their judgment be so impaired by a mental illness that they are “unable to understand the need for such care and treatment” (CPL 330.20 [1] [d]); this makes sense, as such inability could be related to developmental disabilities as opposed to mental illness. Even if that additional factor applied here, however, respondent acknowledged in his testimony that he needed constant supervision, indicating that he understood the need for care and treatment. While the DA’s expert disagreed that respondent had any such understanding, Supreme Court found respondent credible and did not rely on that expert’s testimony. Thus, even under the definition of mentally ill that applies to individuals without developmental disabilities, the DA did not meet his burden. Matter of Arto ZZ, 2014 NY Slip Op 07053, 3rd Dept 10-16-14

 

Resentencing Under Drug Law Reform Act Is Available to a Persistent Felony Offender As Long As the Offender Has Not Been Convicted of Any of the Serious Offenses Enumerated in Correction Law 803

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, resolved a conflict among the appellate division departments about the applicability of the Drug Law Reform Act (DLRA) to persistent felony offenders.  The court determined that the resentencing allowed by the DLRA for certain drug-related offenses is available to persistent felony offenders who have not been convicted of any of the serious crimes enumerated in Correction Law 803:

The Drug Law Reform Act of 2009 (see L 2009, ch 56, § 1, hereinafter “2009 DLRA”) provides remedial resentencing to low-level non-violent felony drug offenders who meet various basic eligibility requirements (see CPL 440.46 [1]). The 2009 DLRA, however, denies resentencing to any offender who is serving a sentence for an “exclusion offense,” which is, among other things, an “offense for which a merit time allowance is not available pursuant to [Correction Law § 803 (1) (d) (ii)]” (CPL 440.46 [5]; CPL 440.46 [5] [a] [ii]). Correction Law § 803 (1) (d) (ii), in turn, makes a merit time allowance unavailable to an offender who is serving a sentence imposed for any of the violent or sexual crimes specifically enumerated in that statute, without regard to the offender's predicate sentencing status (see Correction Law § 803 [1] [d] [ii]). That statute also prevents any offender serving a sentence “authorized for an A-I felony offense” from receiving a merit time allowance (id.), thereby denying such an allowance to anyone who has been sentenced as a persistent felony offender (see Penal Law §§ 70.02 [2] [a]; 70.02 [3] [a] [i]; 70.10 [2]).

In interpreting the language of these interlocking statutes, the Departments of the Appellate Division are divided over the proper answer to the following question: does the DLRA resentencing exclusion apply to all offenders who are ineligible to receive a merit time allowance, including those who cannot receive those allowances solely by virtue of their recidivist sentencing adjudications; or, to the contrary, does it apply only to offenders who have been convicted of certain serious crimes that are specifically listed in Correction Law § 803 (1) (d) (ii) and eliminate the possibility of a merit time allowance regardless of an offender's recidivist sentencing adjudication? We hold that the exclusion applies only to offenders who have been convicted of one or more of the serious crimes that automatically render merit time allowances unavailable under Correction Law § 803 (1) (d) (ii), and that therefore an offender who has no such conviction may be resentenced, notwithstanding his or her adjudication as a persistent felony offender. People v Coleman, 2014 NY Slip Op 07010, CtApp 10-16-2014

 

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Speedy Trial Clock Starts On the Day the People’s Application for Leave to Appeal to the Court of Appeals Is Denied, Notwithstanding Adjournments Granted in the Lower Court

The Court of Appeals determined that the speedy trial clock started running when the People's application for leave to appeal to the Court of Appeals was denied.  The time attributable to the lower court's adjournment while the application to the Court of Appeals was pending should not have been excluded from the speedy trial calculation:

The parties do not dispute that under CPL 30.30 (5) (a) a new criminal action commenced when a Judge of this Court denied the People leave to appeal from the Appellate Term's order. The People point to the fact that, under the Criminal Procedure Law, “[i]n computing the time within which the people must be ready for trial . . . a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: . . . appeals; . . . and the period during which such matters are under consideration by the court” must be excluded (CPL 30.30 [4] [a] [emphasis added]).

The People contend therefore that the period from May 10, 2010 to August 23, 2010 is excludable, relying on People v Vukel (263 AD2d 416 [1st Dept 1999], lv denied 94 NY2d 830 [1999]), which held that when a trial court orders an adjournment for control purposes because of the pendency of a defendant's application for leave to appeal to this Court, the entire period of the adjournment is excludable under CPL 30.30 (4) (a), as time resulting from the appeal. In Vukel, the Appellate Division rejected the argument that the People have “an obligation to advance the case to an earlier date upon receiving the certificate denying leave” (id. at 417).

The mere lapse of time, following the date on which the order occasioning a retrial becomes final, does not in itself constitute a reasonable period of delay resulting from an appeal within the meaning of CPL 30.30 (4) (a). Otherwise, the People would be permitted to delay retrial for the duration of an adjournment in the trial court, no matter how lengthy, even after a Judge of our Court has denied leave to appeal, without consequence under CPL 30.30. Such a rule would be inconsistent with “the dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction” … . To the extent Vukel holds otherwise, it should not be followed. People v Wells, 2014 NY Slip Op 07012, CtApp 10-16-14

 

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Application of the Emergency Doctrine Presented a Mixed Question of Law and Fact which Could Not Be Reviewed by the Court of Appeals

The Court of Appeals determined that the application of the “emergency doctrine” to justify the warrantless search for and seizure of a weapon was a mixed question of law and fact which was not reviewable by the Court of Appeals.  The police responded to a call indicating the defendant had shot himself in the hand.  After the defendant had been frisked and while he his wound was being treated, police officers searched the backyard and found a weapon. The appellate division held that the search was justified by the officers' concern that the children in the house might come across the weapon.  The dissenting judge granted leave to appeal.  The Court of Appeals explained when a mixed question of law and fact is beyond that court's review:

Application of the “emergency doctrine” involves a mixed question of law and fact that is beyond this Court's review so long as there is record support for the findings of the courts below … . The Appellate Division majority and dissent both applied the test set forth in People v Mitchell (39 NY2d 173, 177-178 [1976], cert denied 426 US 953 [1976]) and reached conflicting conclusions as to when the emergency ceased. Because there is record support for the majority's conclusion that the search was lawful under the emergency exception, “'any further review is beyond this Court's jurisdiction'” … . People v Rossi, 2014 NY Slip Op 07006, CtApp 10-16-14

 

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Videotaped Interview Indicated Defendant Did Not Understand His Right to Counsel—The Videotaped Statement, As Well As the Prior Oral and Written Statements, Should Have Been Suppressed

The First Department determined the People did not meet their burden of demonstrating the defendant understood his Miranda rights at the time he waived them.  After waiving his rights and making an oral and written statement, the defendant spoke with the Assistant District Attorney (ADA).  During that conversation, which was videotaped, the defendant gave responses which indicated he did not understand he had the right to talk to his own attorney before speaking with the ADA.  The court determined that the videotaped statement, as well as the prior oral and written statements, should have been suppressed:

…[I]t is not clear that this 18-year-old defendant with no prior criminal history, who could not read or write, ever understood his right to counsel nor the consequences of waiver. The evidence shows that defendant responded “yes” to questions when asked if he understood his rights. Then, immediately afterwards, defendant expressed confusion in understanding his right to counsel. As such, the People failed to present evidence that established defendant sufficiently understood the immediate import of the Miranda warnings. Moreover, ADA Elliot’s explanations failed to clarify for defendant the concept of his right to counsel. Thus, given defendant’s age, illiteracy, unfamiliarity with the criminal justice system, and statements expressing confusion about his Miranda rights, it is evident that the People failed to establish a knowing and intelligent waiver of Miranda rights … . People v Adames, 2014 NY Slip Op 07063, 1st Dept 10-16-14

 

Conspiracy Indictment Which Does Not Charge an Overt Act is Jurisdictionally Defective

The Third Department reversed defendant’s conviction and dismissed a conspiracy indictment as jurisdictionally defective because the indictment failed to charge the commission of an overt act in furtherance of the conspiracy:

In early October 2010, defendant — then serving a sentence in the Otsego County jail on a contempt conviction stemming from various violations of an order of protection in favor of his ex-girlfriend, Jeanette Hamm — allegedly told a fellow prisoner that he desired to have Hamm murdered. Defendant’s block-mate discussed the matter with prison officials, and the Otsego County Sheriff’s Department began an investigation. As part of the investigation, an undercover police officer posing as a potential assassin talked with defendant on the phone and met with him at the jail. Defendant was arrested shortly thereafter and charged by indictment with the crime of conspiracy in the second degree. * * *

As the People concede, the indictment is jurisdictionally defective and must be dismissed inasmuch as it failed to charge the commission of an overt act in furtherance of the conspiracy as required by Penal Law § 105.20 … . People v Grays, 2014 NY Slip Op 07017, 3rd Dept 10-16-14

 

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Assignment of New Counsel and Adjournment of Trial Over Defendant’s Objection Was Proper—Defense Counsel Had Represented the Confidential Informant in the Past—District Attorney Objected to Preclusion of Confidential Informant’s Testimony as a Solution

The Third Department determined the trial court did not abuse its discretion when it ordered, over defendant’s objection, the assignment of new counsel because of a conflict of interest.  Assigned counsel had represented the confidential informant (CI).  The court was faced with either assigning new counsel or ruling that the CI could not testify:

County Court did not abuse its discretion in substituting assigned counsel against defendant’s wishes … . A criminal defendant’s right to counsel of his or her choice is not absolute and may properly be circumscribed where defense counsel’s continued representation of the defendant would present a conflict of interest … . Here, upon learning of the CI’s identity,[FN2] defendant’s original assigned attorney informed the court that he possessed confidential information from his prior representation of the CI that would affect his ability to cross-examine that witness, thereby establishing the existence of an actual conflict of interest … . Faced with “the dilemma of having to choose between undesirable alternatives” in addressing the conflict …, County Court’s decision to assign new counsel and adjourn the trial rather than preclude the testimony of the CI altogether constituted a proper exercise of its broad discretion under the circumstances presented … . People v Robinson, 2014 NY Slip Op 07018, 3rd Dept 10-16-14

 

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Spontaneous Statements Made After Request for Counsel Properly Admitted—911 Call Properly Admitted as an Excited Utterance

The Third Department determined statements made spontaneously to the police after the defendant requested counsel were properly admitted and a 911 call made by the burglary victim was properly admitted as an excited utterance:

As defendant requested counsel after being advised of his Miranda rights at the police station, any further police questioning was precluded … . However, “[n]otwithstanding this rule, statements made by a defendant who has invoked the right to counsel may nevertheless be admissible at trial if they were made spontaneously ” … . Here, we agree with County Court that the People established beyond a reasonable doubt that, following his request for counsel, defendant’s statements were not “the result of express questioning or its functional equivalent” … . That is, his statements to that point were “neither induced, provoked nor encouraged by the actions of the police officers” in simply bringing the girlfriend into the booking room, an action consistent with their routine procedure … . * * *

Next, defendant argues that County Court erred in admitting into evidence a redacted recording of the victim’s 911 call as an excited utterance, because her call was made after she had time for reflection. “An out-of-court statement is properly admissible under the excited utterance [hearsay] exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication” … . “Among the factors to be considered in determining whether . . . a statement is admissible [are] the nature of the startling event[,] the amount of time which has elapsed between the [startling] occurrence and the statement[,] and the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth” …, although “the time for reflection is not measured in minutes or seconds, but rather is measured by facts” … .

Here, the victim testified that, although she had followed defendant’s car and had spoken with him, it was only after she returned home that she discovered that her home had been broken into and her television was missing, and she called 911 “right away.” In the 911 call, the obviously distressed victim exclaimed, “I was just robbed,” and explained her contact with defendant. As County Court correctly found, being the victim of a burglary is “a startling event” and the victim’s call was made “under the stress and excitement of a startling event and [was] not the product of any reflection and possible fabrication” … . People v Haskins, 2014 NY Slip Op 07019, 3rd Dept 10-16-14

 

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Search of Home for Weapon Not Justified by Exigent Circumstances

The Court of Appeals, in a full-fledged opinion by Judge Pigott, reversed the appellate division, finding that exigent circumstances did not justify the search for and seizure of weapon after the suspects and all members of the household were in one room of the home under police supervision.  The police responded to gunfire, saw one of the suspects with a firearm, and used force to gain entry to the apartment into which the suspects fled:

“[S]ubject only to carefully drawn and narrow exceptions, a warrantless search of an individual's home is per se unreasonable and hence unconstitutional” … . One exception, commonly referred to as the “exigent circumstances” exception, dictates that police may act without a warrant where they possess probable cause to search but “urgent events make it impossible to obtain a warrant in sufficient time to preserve evidence or contraband threatened with removal or destruction” … . Even in such cases, however, “the scope of the conduct thus sanctioned is strictly limited by the necessities of the circumstances in which it arises” … . The People have the burden of establishing that the exigencies of the situation justified the warrantless search … .

In this instance, the People failed to meet that burden. There is no record support for the Appellate Division's conclusion that exigent circumstances justified the search of the closed box. The search was unreasonable as a matter of law because, by the time Officer Brennan opened the box, any urgency justifying the warrantless search had abated. The officers had handcuffed the men and removed them to the living room where they (and the two women) remained under police supervision. At the time Officer Brennan searched the box and discovered the gun, the police “were in complete control of the house” and “[a]ll occupants were out of commission” … . At that point, contrary to the People's contention, there was no danger that defendant would dispose of or destroy the weapon …nor was there any danger to the public or the police … .  Absent the presence of any other exception to the warrant requirement, such as a search incident to arrest or the gun being in plain view … the police were required to obtain a warrant prior to searching the box. People v Jenkins, 2014 NY Slip Op 07007, CtApp 10-16-14

 

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