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Denial of Pistol Permit Application Was Based Upon a Misinterpretation of Penal Law 400.00

The Third Department determined County Court had based its denial of petitioner’s pistol permit application upon a misreading of Penal Law 400.00.  County Court interpreted the statute to mean that the prior revocation of a pistol permit for any reason rendered the petitioner ineligible.  However, the statute should have been interpreted to refer only to prior revocations pursuant to Criminal Procedure Law 530.14 and Family Court Act 842-a:

Respondent denied petitioner’s pistol permit application based upon Penal Law § 400.00 (1) (k) (formerly Penal Law § 400.00 [1] [e]), finding that petitioner was ineligible for a pistol permit because of the prior revocation of his permit. Penal Law § 400.00 (1) (k) provides that no permit may be issued to an individual “who has [] had a license revoked or who is [] under a suspension or ineligibility order issued pursuant to the provisions of [CPL] 530.14 . . . or [Family Ct Act § 842-a].” Respondent interpreted this statute as two separate clauses and automatically barred petitioner from being issued a permit because his license had previously been revoked, despite the fact that the revocation was unrelated to either CPL 530.14 or Family Ct Act § 842-a.

We agree with petitioner that this was erroneous, as our reading of the statute indicates that the bar to issuance of a pistol permit “applies only in conjunction with the application of the Criminal Procedure Law and Family Court Act sections cited therein, which deal with orders of protection, and provides that a person who has previously had a firearms license revoked pursuant to those sections is ineligible to hold such a license”… .  * * *

Although the revocation of petitioner’s pistol permit and the reasons therefor unquestionably could have some bearing on whether there is “good cause” to deny his current application (Penal Law § 400.00 [1] [n]), respondent’s denial of the application was based, not on a finding of “good cause” but, rather, upon respondent’s misinterpretation of Penal Law § 400 (1) (k). Matter of Gerard v Koweek, 2014 NY Slip Op 08084, 3rd Dept 11-20-14

 

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Cross-Examination of People’s Witness About Her Past Status as a Confidential Informant Properly Precluded—Status Ended a Year Before and Witness Had Legitimate Safety Concerns

The First Department determined the defense was properly precluded from cross-examination of one of the People’s witnesses about her past status as a confidential informant:

The witness’s service as an informant had concluded a year before the instant crime and did not involve defendant, the People demonstrated that the witness had legitimate safety concerns regarding disclosure of her status, and there was nothing in the circumstances of the case to raise a suspicion that her past informant status contributed to her becoming a prosecution witness in this case. People v Lopez, 2014 NY Slip Op 08117, 1st Dept 11-20-14

 

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Waiver of Right to Appeal Invalid Despite the Signing of a Written Waiver

The Second Department determined defendant’s waiver of his right to appeal was not valid because the right was not adequately explained and because there was no indication that the written waiver signed by the defendant was translated for him:

…[T]he record does not reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal … . The Supreme Court’s statements at the plea allocution improperly suggested that waiving the right to appeal was mandatory rather than a right which the defendant was being asked to voluntarily relinquish, and the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal … . Moreover, there is no indication in the record that the defendant understood the distinction between the right to appeal and other trial rights that are forfeited incident to a plea of guilty … . Although the defendant did sign a written waiver of his right to appeal, nothing in the record demonstrates that the document was translated for the defendant, who required the use of a Spanish language interpreter, before it was presented to him for signature … . In any event, the court’s terse colloquy at the plea allocution, which included the language suggesting that the waiver of the right to appeal was mandatory, failed to sufficiently advise the defendant of the nature of the right to appeal … . People v Guarchaj, 2014 NY Slip Op 08044, 2nd Dept 11-19-14

 

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Judge Effectively Rescinded the Initial Declaration of a Mistrial and Left the Decision Whether to Declare a Mistrial Up to the Defendant—Because the Defendant Ultimately Agreed to the Mistrial the Double Jeopardy Prohibition Was Not Triggered

The Court of Appeals determined that, although the trial judge initially declared a mistrial without defense counsel’s consent, the judge effectively rescinded the declaration by leaving it up to the defendant to decide whether a mistrial should be declared (defense counsel had objected to the way the judge was handling the trial).  Because the mistrial was ultimately agreed to by the defendant, a second trial was not precluded by the double jeopardy prohibition:

Until the jury is discharged, a court may rescind its previous declaration of mistrial (see People v Dawkins, 82 NY2d 226 [1993]). Defendant argues that in this case the trial judge never formally rescinded his initial mistrial ruling, and so whether or not she indicated her consent after that ruling is irrelevant. Certainly, the judge never expressly said “I rescind my order declaring a mistrial.” But we have never required any particular language to be used to retract a prior order. Here, the record makes clear that the trial judge was leaving the mistrial decision up to defendant. Because she decided to “go with a mistrial,” and thus consented to it, her double jeopardy claim fails. Matter of Gorman v Rice, 2014 NY Slip Op 07923, CtApp 11-18-14

 

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Evidence of Defendant’s Silence at the Time of Arrest Should Not Have Been Allowed—New Trial Ordered

The Court of Appeals reversed defendant’s conviction and ordered a new trial because evidence of defendant’s silence at the time of arrest was erroneously allowed:

Absent “unusual circumstances,” evidence of a defendant’s silence at the time of arrest is generally inadmissible under common-law evidentiary principles … . And the use for impeachment purposes of a defendant’s silence after receiving Miranda warnings has been deemed impermissible as a matter of due process … . Under the circumstances presented, we conclude that defendant did not open the door to evidence of his post-Miranda silence and, therefore, Supreme Court erred in permitting its introduction at trial. Nor can the error be viewed as harmless in this case.  People v Hill, 2014 NY Slip OP 07925, CtApp 11-18-14

 

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Defendant Who Pled Guilty Without Counsel and Who Was Not Advised of His Right to Appeal May Raise a “Deprivation of the Right to Counsel” Claim In a Motion to Vacate the Judgment of Conviction, Even Though the Issue Could Have Been Raised on Direct Appeal (No Appeal Was Perfected)

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined the defendant should be allowed to raise the argument that he was deprived of his right to counsel in a motion to vacate the judgment of conviction pursuant to Criminal Procedure Law (CPL) 440.10, even though the issue could have been raised on direct appeal.  The defendant had appeared pro se, had pled guilty and did not appeal.  The judge did not advise the defendant of his right to appeal:

It is correct as a general matter that, when the record is sufficient to permit review of an issue on direct appeal, a defendant who either has not appealed his conviction or, having appealed, has failed to raise that issue is barred from later asserting it as a basis for post-conviction relief … .  * * *

But there is an obvious risk of unfairness in applying this procedural bar where the ground that the defendant seeks to raise is that he was deprived of his right to counsel. If he was indeed deprived of that right, that very deprivation may well have led him either not to appeal or not to have presented the issue to an appellate court. A defendant who has wrongly been deprived of a lawyer can hardly be blamed for failing to follow customary legal procedures. * * *

We conclude, in short, that defendant was not barred from raising his right to counsel claim in a CPL 440 motion. We express no opinion on the merits of the claim.  People v Grubstein, 2014 NY Slip Op 07924, CtApp 11-18-14

 

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Waiver of Appeal Invalid/The Way Defendant Was Holding a Cigarette Justified the Vehicle Stop/No Probable Cause for Warrantless Search of Trunk of Defendant’s Car

The First Department determined (1) the waiver of appeal, which included a signed written waiver, was not valid; (2) the stop of defendant’s vehicle, the removal of the occupants, and the search of the interior of the car was justified by the police officer’s belief defendant was smoking a marijuana cigarette held between his thumb and index finger and the observation of an empty glassine envelope; and (3) the warrantless search of the trunk where ecstasy was found was not justified by probable cause:

A waiver of the right to appeal is not effective unless it is apparent from the record that it was made knowingly, intelligently and voluntarily … . For a waiver to be effective, the record must demonstrate that the defendant has a full appreciation of the consequences of the waiver …, including an understanding “that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty … .

Here, the court never adequately explained the nature of the waiver, the rights the defendant would be waiving or that the right to appeal was separate and distinct from the rights automatically forfeited upon a plea of guilty. Accordingly, the waiver was invalid and unenforceable … . The written waiver signed by defendant was no substitute for an on-the-record explanation of the nature of the right to appeal … . In addition, the court’s statement that defendant was “going to be required” to waive his right to appeal could have misled him into believing that he had no choice but to do so … . * * *

…Officer Rivera, an experienced policeman who had participated in approximately 30 arrests involving marijuana, testified to the court’s satisfaction that, in his opinion and experience, the manner in which defendant was handling the cigarette indicated that it was a marijuana cigarette. “[M]uch weight must be accorded the determination of the suppression court with its peculiar advantages of having seen and heard the witnesses” … . That Rivera was not “certain” that defendant was smoking marijuana is of no moment, since “[t]he standard for [a forcible stop is] merely reasonable suspicion, not absolute certainty or even probable cause” … .

Defendant effectively concedes that the police were entitled to search in the area of the car where Officer Rivera claims to have smelled marijuana, but not anywhere else, and certainly not in the trunk. This, he argues, is because any grounds the police may have had to believe that the trunk contained drugs were belied by the lack of evidence that they existed anywhere else in the car.

Indeed, there was scant evidence of drugs in the car. After approaching the car, Rivera never saw the marijuana cigarette that he claimed he saw when he drove past defendant’s car, and he was equivocal about whether he smelled burning or unburnt marijuana. Further, the glassine envelope that Officer Ali uncovered was empty, and it was not until later that day, after defendant and his companions were arrested, that Rivera concluded that it contained marijuana. Rivera also conceded that defendant did not appear to be under the influence.  * * * Accordingly, we find that the police lacked probable cause to search the trunk, and that the Ecstasy found there should have been suppressed.  People v Ramos, 2014 NY Slip Op 07931, 1st Dept 11-18-14

 

Reversible Error to Deny Defendant’s Request for a Jury Instruction on the Terretorial Jurisdiction Requirement

The First Department, in a full-fledged opinion by Justice Richter, determined that the trial court’s failure, at the defendant’s request, to instruct the jury on the terretorial jurisdiction requirement (pursuant to Criminal Procedure Law (CPL) 20.20, an element of the charged offense must have been committed within New York State) was reversible error.  It was alleged that defendant, who worked in New York for a Danish company, essentially wrote checks from the company account to himself.  The defense requested a jury instruction on the requisites for the terretorial jurisdiction of a New York court over the alleged crime and the People did not oppose the request.  The First Department explained that, like a jury instruction on the requisites of venue, a jury instruction on the requisites of jurisdiction should be given upon request:

When a defendant requests the court to instruct the jury on venue, it is error to deny the request even if the People’s proof as to venue may be uncontradicted … . Thus, “when requested to submit the issue to the jury it is doubtful whether it would ever be proper for the court to deny the request and decide the issue as a matter of law on the theory that the People have met their burden by uncontradicted proof” … . These principles apply equally to the issue of territorial jurisdiction, which has a higher burden of proof and which “goes to the very essence of the State’s power to prosecute” … . * * *

Under [CPL 20.20] … “a person may be convicted . . . of an offense . . . committed . . . by his [or her] own conduct . . . when . . . [c]onduct occurred within this state sufficient to establish . . . [a]n element of such offense.” The CJI charge on territorial jurisdiction mirrors the statutory language, and further requires the jury to determine jurisdiction before they begin deliberations on whether the People have proven the defendant guilty of the charged crime. * * * … [T]he purpose of the jurisdiction charge is to focus the jury on this question, and the standard charge on the elements of the crime does not advise the jury that they must decide the threshold jurisdictional issue before deciding anything else. Accordingly, defendant’s conviction should be reversed and the matter remanded for a new trial. People v Thomas, 2014 NY Slip Op 07965, 1st Dept 11-18-14

 

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Petition by the District Attorney Against the Sentencing Judge Seeking Vacation of the Sentence Imposed, Because the District Attorney Did Not Agree to It, Dismissed—Granting the Petition Would Direct the Judge to Violate Criminal Procedure law 220.10(4) and Would Violate the Defendant’s Protection Against Double Jeopardy

The Fourth Department dismissed a petition brought against a judge by a district attorney seeking the vacation of a plea on the ground that the district attorney did not agree to it.  The district attorney argued he had agreed to a six-year sentence, not the five-year sentence imposed by the judge:

The extraordinary remedy of mandamus ” is never granted for the purpose of compelling the performance of an unlawful act’ ” …, and the Court of Appeals has repeatedly held that, after the entry of judgment and the commencement of sentence, courts have no statutory or inherent authority to vacate, over a defendant’s objection, a plea taken in contravention of CPL 220.10 or related statutory provisions … . Indeed, absent extrinsic fraud, “[i]n no instance ha[s the Court of Appeals] recognized a court’s inherent [or statutory] power to vacate a plea and sentence over defendant’s objection where the error goes beyond mere clerical error apparent on the face of the record and where the proceeding has terminated by the entry of judgment” … . Thus, mandamus does not lie here because we cannot compel respondent to exceed his statutory and inherent authority by directing him to vacate a plea taken in violation of CPL 220.10 (4) (a) after the commencement of sentence.

Furthermore, “restor[ing] the matter to its pre-plea status,” as petitioner seeks, would violate defendant’s constitutional protections against double jeopardy … . Contrary to petitioner’s contention, CPL 40.30 (3) “does not aid the analysis of the double jeopardy issue” … . The Court of Appeals has held that a plea taken without the People’s consent is not a nullity for purposes of that provision … .

Apart from the legal infirmities of petitioner’s position, we further conclude that the record does not factually support that position. Specifically, the record belies petitioner’s contention that his consent to defendant’s plea was conditioned on the imposition of a determinate, six-year term of imprisonment. Matter of Budelmann v Leone, 2014 NY Slip Op 07797, 4th Dept 11-14-14

 

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Statements Made by Defendant to Physician In Presence of Police Investigator Not Privileged

The Fourth Department determined the physician-patient privilege did not protect statements made by the defendant to the doctor while a police investigator was in the room:

We reject defendant’s contention that Supreme Court erred in allowing a medical professional to testify to statements defendant made to her while being examined at the hospital after his arrest. Defendant contends that his statements were subject to the physician-patient privilege despite the presence of a police investigator in the examination room because he was in custody and was not able to tell the investigator to leave the room. The physician-patient privilege, which is “entirely a creature of statute” .., is set forth in CPLR 4504 (a), and is applicable to criminal proceedings by virtue of CPL 60.10 … . In determining whether the physician-patient privilege applies, we must consider “whether in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential” … . Here, we conclude that defendant did not meet his burden of establishing that the privilege applied … , because there was no showing that he intended that his statements be confidential. Defendant was aware of the investigator’s presence, but he did not ask to speak with the medical professional privately. Additionally, defendant made numerous statements to others that were similar to the statements he made to the medical professional, both before and after making them to her. People v Hartle, 2014 NY Slip Op 07812, 4th Dept 11-14-14

 

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