The Third Department found the error harmless, but it noted that, even in a nonjury trial, the defendant should not be in shackles in the courtroom unless reasons for the restraint are put on the record:
Even in a nonjury trial, a defendant should not remain restrained in the courtroom unless the trial court sets forth particularized reasons for such restraint on the record … . People v Whitehead, 2014 NY Slip Op 05213, 3rd Dept 7-10-14
The Third Department described the types of fundamental errors which survive a guilty plea. The prosecutor’s alleged failure to inform the grand jury of defendant’s request to call witnesses in not one of them:
By his plea of guilty, defendant forfeited this argument. “As a rule, a defendant who in open court admits guilt of an offense charged may not later seek review of claims relating to the deprivation of rights that took place before the plea was entered” … . As relevant here, a claim “that the District Attorney did not inform the grand jury of defendant’s request to call witnesses to testify on his behalf as required by CPL 190.50 (6) . . . does not activate a question of jurisdiction or constitute a constitutional defect and, thus, does not survive a guilty plea” … . People v McCommons, 2014 NY Slip Op 05215, 3rd Dept 7-10-14
The Second Department determined the “physical injury” element of robbery in the second degree had not been proven:
“Physical injury” is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). The subject complainant testified that he sustained an injury to his left ring finger after he was attacked from behind and fell to the ground. The complainant went to the hospital after the incident, where his bruised finger was bandaged and placed in a splint, but X rays revealed no broken bones and there was no evidence presented that he was prescribed pain medication. A “bruise” was still present four years after the incident, but the complainant only testified generally that he felt pain on his hand and arms immediately after the incident, and he did not testify that the injury limited or diminished his ability to use his finger for any length of time. Under these circumstances, there was insufficient evidence from which a jury could infer that the complainant suffered substantial pain or impairment of physical condition … . People v Boney, 2014 NY Slip Op 05197, 2nd Dept 7-9-14
The Second Department determined that an off-duty corrections officer (Maldonado) was not acting within the scope of his employment when he shot and killed a man:
“Under the doctrine of respondeat superior, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment” … . “An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his [or her] employer, or if his [or her] act may be reasonably said to be necessary or incidental to such employment” … . However, an employer may not be held vicariously liable for its employee’s alleged tortious conduct if, at the time of the underlying incident, the employee was acting solely for personal motives unrelated to the furtherance of the employer’s business … .
Here, the claimant’s decedent was shot by an off-duty New York State Corrections Officer, Emilio Maldonado, after a dispute. The record showed, inter alia, that Maldonado was assaulted by the claimant’s decedent and his brother following a traffic dispute. At the time of the incident, Maldonado was driving his personal vehicle, and was accompanied by family members. He was carrying his own privately-owned weapon as well as a badge. * * *
Although Maldonado testified in a related criminal action that he intended or planned to “cuff” and detain the assailants, it is undisputed that he never took any affirmative steps toward effecting a detention. In particular, he did not order the assailants to halt, and he did not physically attempt to handcuff or detain them. It is also undisputed that after the shooting, Maldonado did not attempt to detain the fleeing assailants. Under these circumstances, the claimant failed to raise a triable issue of fact as to whether Maldonado acted within the scope of his official duties… . Wood v State of New York, 2014 NY Slip Op 05173, 7-9-14
The Fourth Department noted that Supreme Court had the discretion to order an informal psychological assessment in response to defense counsel’s request for an examination pursuant to Criminal Procedure Law Article 730 to determine whether defendant was competent to stand trial:
…[D]efendant contends that Supreme Court erred in failing to follow the requirements of CPL article 730 to determine whether he was competent to stand trial at the time his case was presented to the grand jury (see CPL 730.30 [1]). We reject that contention. The record establishes that the court granted defense counsel’s request for a “forensic examination” of defendant by ordering only an informal psychological examination and not by issuing an order of examination pursuant to CPL article 730. We conclude that “[t]he decision of the court to order an informal psychological examination was within its discretion . . . and did not automatically require the court to issue an order of examination or otherwise comply with CPL article 730′ “… . People v Castro, 2014 NY Slip Op 05102, 4th Dept 7-3-14
The Fourth Department determined that counts of an indictment should have been dismissed as inclusory concurrent counts:
We agree with defendant … that the fourth and sixth counts of the indictment, each charging him with assault in the first degree, must be reversed and dismissed pursuant to CPL 300.30 (4) as inclusory concurrent counts of counts five and seven, each charging him with assault in the first degree as a sexually motivated felony. We therefore modify the judgment accordingly. CPL 300.30 (4) provides in pertinent part that “[c]oncurrent counts are inclusory’ when the offense charged in one is greater than any of those charged in the others and when the latter are all lesser offenses included within the greater.” A crime is a lesser included offense of another where “it is theoretically impossible to commit the greater crime without at the same time committing the lesser . . . [, as] determined by a comparative examination of the statutes defining the two crimes, in the abstract” … . Here, “defendant could only commit the sexually motivated felon[ies] if it was proven that he had committed the underlying [assaults] and that the [assaults were] committed for his own sexual gratification” … . Thus, the underlying assault counts charging assault in the first degree should have been dismissed as inclusory concurrent counts of the counts charging assault in the first degree as a sexually motivated felony upon defendant’s conviction of the latter crime… . People v Dallas, 2014 NY Slip Op 05083, 4th Dept 7-3-14
The Third Department determined newly discovered evidence, including hearsay evidence of the admission of another (Melton) to the commission of the crime, warranted a hearing pursuant to the defendant’s motion to set aside his conviction:
“[A] defendant has a fundamental right to offer into evidence the admission of another to the crime with which he or she is charged” … . “Depriving a defendant of the opportunity to offer into evidence another person’s admission to the crime with which he or she has been charged, even though that admission may only be offered as a hearsay statement, may deny a defendant his or her fundamental right to present a defense” … . The People’s claims regarding Melton’s unwillingness to testify were themselves hearsay, and simply created issues of fact as to whether he was available and, if not, whether his posttrial statements were admissible as declarations against his penal interest … . A statement is admissible under this hearsay exception if (1) the declarant is unavailable because of death, absence or a refusal to testify on constitutional grounds, (2) the declarant knew when making the declaration that it was contrary to his or her penal interest, (3) he or she had competent knowledge of the facts, and (4) other independent evidence supports the reliability and trustworthiness of the declaration … . Where, as here, the statement at issue tends to exculpate a criminal defendant, a more lenient standard of reliability is applied than to inculpatory statements; an exculpatory declaration is admissible if competent independent evidence “establishes a reasonable possibility that the statement might be true” .. . . People v Sheppard, 2014 NY Slip Op 04982, 3rd Dept 7-3-14
The Third Department determined the respondent in a Mental Hygiene Law 10.06 proceeding (called a SOMTA proceeding) to determine whether he, as a sex offender, should be committed to a secure mental health treatment facility, could not defeat the proceeding by renouncing his citizenship and leaving the country:
It is well established that “Congress has broad authority to set the conditions and procedures that an individual must satisfy in order to renounce his [or her] citizenship” … . In accord with its authority, Congress enacted 8 USC § 1481, which, in relevant part, provides that “[a] person who is a national of the United States whether by birth or naturalization, shall lose his [or her] nationality by voluntarily performing [certain enumerated] acts with the intention of relinquishing United States nationality” … . A citizen seeking to renounce his or her nationality must make an application therefor and, generally, must be outside the United States to do so … . To this end, respondent argues that the SOMTA petition must be dismissed so that he may be released from DOCCS’s custody in order to leave the United States and return to Israel, where he will effectuate his expatriation… .
We flatly reject this argument, which presupposes, among other things, that respondent would actually exit this country if he were released from custod. Even if he did leave, the state is not required to bear the risk that petitioner an experienced international fugitive would not return to New York thereafter. In any event, at this juncture, respondent remains a United States citizen confined in New York who is a sex offender alleged to have a mental abnormality and in need of civil management, and petitioner continues to have a legitimate interest in protecting society from the risks he poses… . Matter of State of New York v Horowitz, 2014 NY Slip Op 05001, 3rd Dept 7-3-14
The Third Department determined County Court should not have imposed an enhanced sentenced based upon post-plea events without affording the defendant the opportunity to withdraw his plea:
A sentencing court may not impose an enhanced sentence unless it has informed the defendant of specific conditions that the defendant must abide by or risk such enhancement, or give the defendant an opportunity to withdraw his or her plea before the enhanced sentence is imposed … . Here, County Court enhanced defendant’s sentence due to defendant’s arrest while on release pending sentencing. However, the record reflects that defendant was never warned that County Court would not be bound by its sentencing commitment if he were arrested while out on release … . Consequently, County Court erred in imposing an enhanced sentence without first providing defendant an opportunity to withdraw his plea… . People v Tole, 2014 NY Slip Op 04980, 3rd Dept 7-3-14
The Third Department determined County Court erred by imposing $100,000 restitution without a hearing. The People had determined the $100,000 figure was excessive and had requested restitution in the approximate amount of $32,000:
….[W]e agree with defendant that County Court erred in ordering restitution in the amount of $100,000 without a hearing. By statute, when a court requires restitution, it must make a finding as to the actual amount of loss and, “[i]f the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing” (Penal Law § 60.27 [2]…). Defendant sufficiently preserved this challenge to the increased amount of restitution, in that defense counsel and the People questioned it at sentencing … . Upon review, we find that there is no evidence in the record to support the court’s imposition of $100,000 in restitution. To the contrary, at sentencing the People characterized such figure as “excessive,” stated that they “lacked sufficient documentation and proof” to support that amount, and proffered evidence supporting restitution in the amount of $32,240, a figure to which the victim, the court and defendant had all agreed. Further, there are statutory limits on the amount of restitution, which may be exceeded, as relevant here, provided “‘the amount in excess [is] limited to the return of the victim’s property, including money, or the equivalent value thereof'” … . Accordingly, the matter must be remitted for a restitution hearing or a redetermination of restitution consistent with the plea agreement. Given that “[a] sentencing court may not impose a more severe sentence than one bargained for without providing [the] defendant the opportunity to withdraw his [or her] plea” …, under the circumstances here, upon remittal, defendant must be afforded an opportunity to withdraw his guilty plea if a hearing is held and the amount of restitution imposed exceeds the originally agreed upon amount, i.e., $32,240. People v Pleasant, 2014 NY Slip Op 04981, 3rd Dept 7-3-14
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