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Where a Witness Is Incarcerated Pursuant to the Judiciary Law, After A Finding the Witness is In Contempt, and the Incarceration Is Not Specifically Imposed for a Definite Period As Punishment, But Rather Is Imposed to Induce the Witness to Obey the Court’s Order, the Contempt Finding is Civil in Nature—Double Jeopardy Will Not Bar Prosecution of the Witness for Criminal Contempt Under the Penal Law

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the contempt finding and incarceration of the defendant (under the Judiciary Law) following the defendant's refusal to testify at his brother's trial was civil, not criminal, in nature.  Therefore, the prohibition against double jeopardy did not bar the prosecution from charging the defendant with criminal contempt (under the Penal Law),  The Judiciary Law allows a finding of civil or criminal contempt.  Where, as here, a defendant is incarcerated in the hope that the incarceration will induce the defendant to follow the court's order (in this case the order to testify under immunity), but no period of incarceration is specifically designated and imposed as a punishment for failure to obey the court's order, the proceedings are civil in nature.

…”'[I]t is not the fact of punishment, but rather its character and purpose, that often serve to distinguish civil from criminal contempt” (… . Where a defendant is held in contempt for the remedial purpose of compelling compliance, imprisonment continues until such time as the contemnor acquiesces or is no longer able to do so … . Once the contemnor agrees, there is no remedial purpose to be served by continued confinement. The contemnor, therefore, holds “the keys of their prison in their own pockets” … .

In contrast, where a contemnor is sentenced to imprisonment for a definite period which cannot be affected — that is, ended —by the contemnor's compliance with the law, then the contempt is not remedial but punitive. As the Supreme Court has stated, “[i]f the sentence is limited to imprisonment for a definite period, the defendant is furnished no key, and [the defendant] cannot shorten the term by promising not to repeat the offense” … . * * *

For a court to summarily punish contempt, our Judiciary Law requires issuance of an order “stating the facts which constitute the offense” and “plainly and specifically prescribing the punishment to be inflicted” (Judiciary Law § 755 [emphasis added]). Notably absent from County Court's order of contempt here is a plain and specific statement of the punishment to be imposed upon defendant. The record reveals that the court issued a mandate of commitment and that defendant was confined pursuant to that mandate; no where does the record indicate the precise term of commitment. * * *

In cases where a court invokes its contempt power to coerce a defendant's obedience, the best practice would be for the court to state on the record that defendant may purge the contempt through compliance with the law. However, based on the record before us, it is clear that County Court did not summarily adjudicate defendant in criminal contempt or impose a definite sentence of punishment in accordance with the Judiciary Law. Therefore, defendant's conditional imprisonment was for the remedial purpose of compelling defendant's testimony, and as a consequence defendant's subsequent prosecution for contempt was not barred by double jeopardy. People v Sweat, 2014 NY Slip Op 07292, CtApp 10-28-14

 

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Civil Commitment of Two Sex Offenders Reversed—In One Case the Proof the Offender Had “Serious Difficulty In Controlling” His Sexual Conduct Within the Meaning of Article 10 of the Mental Hygiene Law Was Legally Insufficient—In the Other Case, Proof the Offender Suffered from Anti-Social Personality Disorder (ASPC) Alone Did Not Meet the Definition of “Mental Abnormality” in Article 10 of the Mental Hygiene Law

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a partial dissent, reversed the civil commitment of two sex offenders, finding the proof required by Article 10 of the Mental Hygiene Law lacking. In the case of Kenneth T, the state claimed Kenneth suffered from “paraphilia not otherwise specified” (paraphilia NOS) and “antisocial personality disorder” (ASPD).  In the case of Donald DD, the state claimed Donald suffered from ASPD alone.  The Court of Appeals, with respect to Kenneth T, seriously questioned, but did not decide, whether the proof of paraphilia NOS and ASPD sufficiently demonstrated a “mental abnormality” under Article 10 of the Mental Hygiene Law.  The court suggested that a Frye hearing to test the scientific soundness of the opinion evidence in this regard would be a good idea. Sidestepping that issue on stare decisis grounds, the court reversed Kenneth's civil commitment because the proof Kenneth had “serious difficulty in controlling” his sexual conduct within the meaning of section 10.03 (i) was not clear and convincing.  With respect to Donald DD, the court unambiguously ruled that proof of ASPD alone is never sufficient proof of a mental abnormality within the meaning of section 10.03 (i):

We do not decide on this occasion from what sources sufficient evidence of a serious difficulty controlling sex-offending conduct may arise, but they cannot consist of such meager material as that a sex offender did not make efforts to avoid arrest and reincarceration. A detailed psychological portrait of a sex offender would doubtless allow an expert to determine the level of control the offender has over his sexual conduct. However, … testimony that Kenneth T. lacked “internal controls such as a conscience that might curb his impulses” is not a basis from which serious difficulty in controlling sexual conduct may be rationally inferred. * * *

Donald DD.'s appeal presents us with an opportunity to decide a question left open in Matter of State of New York v John S. (23 NY3d 326 [2014]), namely whether a civil commitment under Mental Hygiene Law article 10 may be based solely on a diagnosis of ASPD, together with evidence of sexual crimes … . We hold that it cannot. Matter of State of New York v Donald DD, 2014 NY Slip Op 07295, CtApp 10-28-14

 

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Failure to Inform Defendant of Period of Post-Release Supervision Before Sentencing (Based On a Guilty Plea) Required Vacation of the Sentence, Even in the Absence of Preservation of the Error

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissent, determined the defendant’s guilty plea must be vacated because defendant wasn’t informed of the period of post-release supervision (PRS) until sentencing (in the absence of preservation of the error):

The primary issue presented by this appeal is whether defendant was required to preserve her claim that her plea was not knowingly and voluntarily entered where she first received notice of the imposition of a term of postrelease supervision (PRS) at sentencing, and submitted to sentencing with the PRS addition. We reverse, vacate the plea, and remit for further proceedings, holding that the court must notify defendant of a term of PRS sufficiently in advance of its imposition that defendant has the opportunity to object to the deficiency in the plea proceeding. In the absence of such an opportunity, preservation is unnecessary. * * *

We held in People v Catu that “[a] trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences” (4 NY3d 242, 244-245 [2005]). To meet due process requirements, a defendant “must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action” (id. at 245). Without such procedures, vacatur of the plea is required (id.). People v Turner, 2014 NY Slip Op 07200, CtApp 10-23-14 

 

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“Drug Factory” Presumption re: Possession of Drugs to Which the Defendant Is In “Close Proximity” Does Not Apply to A Defendant Who Is Arrested Outside the Building Where the Drugs Are Located and Who Was Not Trying to Escape/Where a Jury Is Instructed It Can Consider Two Different Theories of Possession, and One of Those Theories Should Not Have Been Available for the Jury’s Consideration, the Relevant Convictions Must Be Reversed—the Jury Could Have Based Its Verdict on the Erroneously-Charged Theory

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that the trial judge should not have allowed the jury to consider whether the defendant, who was arrested outside the apartment, was in “close proxity” to the cocaine in the apartment.  Penal Law 220.25(2) creates a presumption that persons in “close proximity” to drugs that are being mixed or packaged possesses those drugs (the so-called “drug factory” presumption). The trial judge also instructed the jury they could consider whether the defendant constructively possessed the drugs by virtue of his control over the area where the drugs were found.  Because it can not be determined whether the jury based its verdict on the erroneous “drug factory” charge or the correct “constructive possession” charge, the relevant convictions were reversed and a new trial ordered.  The Court of Appeals went through all the scenarios which have been held to constitute “close proximity” to drugs and concluded that where a defendant is outside the structure where the drugs are located and is not in the process of fleeing, the “drug factory” presumption does not apply:

…[T]he presumption may apply even in cases where a defendant has exited the premises, when the defendant is caught in immediate flight, or apprehended fleeing the premises “upon the sudden appearance of the police” … . We need not determine on this appeal how far from the premises defendant may be apprehended and still be subject to the presumption. We note, however, that the boundary in these cases is not limitless. Suffice it to say, that each incremental enlargement of the distance between the defendant and the premises where the drugs are found tests the underlying justification of the presumption, and makes it susceptible to challenge. …

Applying these principles to the record before us, we conclude that defendant was not in close proximity to the drugs when they were found within the meaning of section 220.25(2). He was not in the room where the drugs were found, in an adjacent room within the same apartment, or in a “closet, bathroom or other convenient recess[].” Nor was he found immediately outside the premises while trying to escape.  People v Kims, 2014 NY Slip Op 07196, CtApp 10-23-14

 

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Prior Consistent Statements by the Complainant in a Sexual Abuse Case Were Not Admitted for the Truth of the Matter Asserted, But Rather Were Properly Admitted to Explain How the Investigative Process Began

The Court of Appeals, in a full-fledged opinion by Judge Read, over a concurrence disagreeing with majority's reasoning and a two-judge dissent, determined that prior consistent statements by the complainant in a sexual-abuse case were properly admitted.  The Court of Appeals concluded the statements did not constitute bolstering, were not introduced for the truth of the matter asserted, and were admissible to show how the investigative process into complainant's allegations began:

In the challenged testimony, complainant's half-brother and mother did not recite any details of the sexual abuse to which complainant later testified in court — indeed, they could not have done so because she supplied them with no information beyond a bare allegation. They did, however, describe complainant's appearance: according to her half-brother, complainant “hesitated” and, after telling him that she had performed oral sex, was reluctant to speak further; according to complainant's mother, when pushed by her half-brother to “tell mom what you just told me,” complainant stood mute with her fist in her mouth, causing her mother to think at first that she had injured her hand. Finally, the witnesses explained what actions complainant's disclosure prompted them to take: the half-brother pressed complainant to repeat the allegation to their mother, and, when she was unwilling, told their mother himself; complainant's mother immediately shared the allegation with a trusted sister of defendant's and a friend, which led to the investigation resulting in the charge against defendant.

New York courts have routinely recognized that “nonspecific testimony about [a] child-victim's reports of sexual abuse [do] not constitute improper bolstering [because] offered for the relevant, nonhearsay purpose of explaining the investigative process and completing the narrative of events leading to the defendant's arrest” … . Here, the objected-to testimony fulfilled these legitimate nonhearsay purposes.  People v Ludwig, 2014 NY Slip Op 07201, CtApp 10-23-14

The Court of Appeals addressed the same issue and came to the same result in another case. People v Cullen, 2014 NY Slip Op 07202, CtApp 10-23-14

 

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Heroin Upon Which Defendant Overdosed in His Cell Constituted “Dangerous Contraband”—Conviction for Promoting Prison Contraband in the First Degree Was Not Against the Weight of the Evidence

The Third Department determined defendant’s conviction for promoting prison contraband in the first degree was supported by the evidence.  The contraband, heroin, was “dangerous” with the meaning of the statute because it endangered the safety of the defendant, who overdosed on the drug in his cell:

As noted by County Court, contraband will be considered dangerous under the statutory definition as long as it endangers the safety of “any person” (Penal Law § 205.00 [4]). Inasmuch as the heroin possessed by defendant clearly endangered his own safety, and he freely admitted that he used it to harm himself, there was legally sufficient evidence from which the jury could reasonably conclude that it constituted dangerous contraband and we do not find that the verdict was against the weight of the evidence… . People v Verley, 2014 NY Slip Op 07208, 3rd Dept 10-23-14

 

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Where Jail Time Is Contemplated as Punishment for Disobeying an Order of Protection, the Standard of Proof for Willful Contempt is “Beyond a Reasonable Doubt”

The Third Department, in a full-fledged opinion by Justice Lahtinen, determined that the “beyond a reasonable doubt” standard applied in a contempt proceeding where jail time was imposed as a punishment for disobeying an order of protection.  The court held the proof met the standard, but sentenced the respondent to time-served (11 days):

Case law has not been consistent regarding the level of proof when considering an alleged willful violation of a protective order … . This inconsistency may be due in part to the statutory silence as to the quantum of proof (see Family Ct Act § 846-a [stating that the court must be satisfied by “competent proof”]), as well as the fact that, like other statutes implicating contempt, a Family Ct Act article 8 proceeding can involve civil contempt, criminal contempt or both. Criminal and civil contempt have different levels of proof as “criminal contempt must be proven beyond a reasonable doubt,” whereas “civil contempt . . . must be proven by clear and convincing evidence” … .

Where, as here, a person who has violated an order of protection is incarcerated as a punitive remedy for a definite period — with no avenue to shorten the term by acts that extinguish the contempt — then that aspect of the Family Ct Act article 8 proceeding “is one involving criminal contempt [and] [t]he standard of proof that must be met to establish that the individual willfully violated the court’s order is beyond a reasonable doubt” … . Matter of Stuart LL v Aimee KL, 2014 NY Slip Op 07222, 3rd Dept 10-23-14

 

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Elements of Malicious Prosecution and Abuse of Process Explained

In reversing the pre-answer dismissal of a malicious prosecution cause of action and affirming the dismissal on an abuse of process cause of action, the Third Department explained the elements of both:

…[W]e conclude that Supreme Court erred in dismissing plaintiff’s malicious prosecution cause of action. The elements of such a claim are “(1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice” … . As is particularly relevant here, “[i]n order for a civilian complainant to be considered to have initiated a criminal proceeding, ‘it must be shown that [the complainant] played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act'” … .  * * *

With respect to the abuse of process claim, the three essential elements are “(1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective” … . In general, such a claim “will only lie for improperly using process after it is issued” …, and a malicious motive alone is insufficient to give rise to a cause of action to recover for abuse of process … . Here, plaintiff’s allegations in the complaint pertaining to this cause of action, even construed liberally, fail to allege that defendant actually used process improperly — either the order of protection or the arrest warrant — “in a manner inconsistent with the purpose for which it was designed” … . Place v Ciccotelli, 2014 NY Slip Op 07237, 3rd Dept 10-23-14

 

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Defendant’s Request for New Assigned Counsel Was Not Supported by Sufficient Facts to Warrant Inquiry by the Court

In finding defendant’s request for new assigned counsel was properly denied, the Second Department explained the relevant analytical criteria:

A defendant may be entitled to new assigned counsel upon a showing of good cause, such as a conflict of interest or other irreconcilable conflict with counsel … . “Whether counsel is substituted is within the discretion and responsibility’ of the trial judge, and a court’s duty to consider such a motion is invoked only where a defendant makes a seemingly serious request[ ]'” … . Where a seemingly serious request is made, the trial court is obligated to conduct at least a “minimal inquiry” to determine the nature of the conflict and a possible resolution … .

In People v Porto, the Court of Appeals delineated the threshold necessary to require a court to make further inquiry, to wit, a defendant’s request to substitute counsel must contain “specific factual allegations of serious complaints about counsel'” … . Here, no serious complaint about counsel was raised by the defendant … . Instead, the defendant, who already had at least one prior change of counsel, stated that he wanted new counsel because he didn’t “want [his current counsel] anymore. First and foremost [he is] not helping me at all. I don’t see myself even surviving the jungle right here with him even representing me.” The defendant further stated, “I don’t want to proceed with him. And I’m going to tell you, I’m not a lawyer or nothing like that. But I think I can do better than him.” The defendant’s bare assertions did not suggest the serious possibility of a genuine conflict of interest or other impediment to the defendant’s representation by assigned counsel, and did not create a duty of inquiry on the part of the trial court … . Under these circumstances, the trial court providently exercised its discretion in denying the defendant’s request … . People v Ward, 2014 NY Slip Op 07193, 2nd Dept 10-22-14

 

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Defendant Was Apparently Erroneously Sentenced to Five Years When the Correct Sentence Was 15 Years—Pursuant to a Resettlement of the Sentencing Transcript Two Months After Defendant’s Release, He Was Resentenced to 15 Years—Because Defendant Had a Legitimate Expectation of Finality Re: the Five-Year Sentence, the Resentence Violated the Double Jeopardy Clause

The Second Department determined defendant’s resentencing violated the Double Jeopardy clause.  Defendant had been erroneously sentenced to five years for criminal possession of a weapon when the sentence apparently should have been 15 years.  After defendant’s successful habeas corpus action, his assault conviction was vacated and he was released from prison, having served 8 years.  Two months after his release, pursuant to a resettlement proceeding to correct an error in the sentencing transcript, the defendant was resentenced to 15 years and reincarcerated:

Courts possess “the inherent power to correct their records, where the correction relates to mistakes, or errors, which may be termed clerical in their nature, or where it is made in order to conform the record to the truth” … . This inherent authority extends to circumstances “where it clearly appears that a mistake or error occurred at the time a sentence was imposed” … . However, as with resentencing, an order correcting an error in a transcript of a sentencing proceeding is subject to a temporal limitation imposed by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution … .

The Double Jeopardy Clause prevents a sentence from being increased once a defendant has a legitimate expectation of finality of the sentence … . “[A] legitimate expectation of finality turns on the completion of a sentence” … . Here, the resettlement of the sentencing transcript almost three years after the sentence was purportedly satisfied, and more than two months after the defendant’s release from prison in purported full satisfaction of that sentence, violated the constitutional prohibition on subjecting a criminal defendant to double jeopardy. For more than seven years after the sentence was imposed, the People represented to the defendant, and to State and federal courts, that the transcript accurately reflected a five-year sentence. Accordingly, upon his release from prison, the defendant had served out his sentence “as reasonably understood by all the parties” … . He thus acquired a legitimate expectation of finality with respect to the sentence, and the later resettlement of the transcript of the sentencing proceeding violated his rights under the Double Jeopardy Clause … . People v Langston, 2014 NY Slip Op 07182, 2nd Dept 10-22-14

 

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