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BECAUSE DEFENDANT’S 20-YEAR-OLD OUT-OF-STATE CONVICTION DID NOT INVOLVE A SEXUALLY VIOLENT OFFENSE, THE CORRECTION LAW WHICH REQUIRES THAT HE BE DESIGNATED A SEXUALLY VIOLENT OFFENDER IS UNCONSTITUTIONAL AS APPLIED TO HIM (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant should not have been designated a sexually violent offender based upon a 20-year-old out-of-state conviction of an offense which would not qualify as a sexually violent offense in New York:

There is no dispute that the crime of which defendant was convicted, sexual assault in violation of 18 Pa Cons Stat § 3124.1, does not include all of the essential elements of a sexually violent offense in New York enumerated in Correction Law § 168-a (3) (a), and therefore is not a sexually violent offense under the first disjunctive clause of Correction Law § 168-a (3) (b). Instead, after defendant moved to New York approximately 20 years after the sexual assault conviction was entered and the Board of Examiners of Sex Offenders determined that he was required to register as a sex offender in New York …, the People contended that County Court should designate him a sexually violent offender under the second disjunctive clause of Correction Law § 168-a (3) (b). That clause defines a sexually violent offense as including a “conviction of a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred.” The court designated defendant a sexually violent offender under the foreign registration clause.

… [W]e agree with defendant that the foreign registration clause of Correction Law § 168-a (3) (b) is unconstitutional, as applied to him, under the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. People v Zellefrow, 2024 NY Slip Op 03605, Fourth Dept 7-3-24

Practice Point: The Correction Law which requires a person convicted of a registrable offense in another state to be designated a sexually violent offender upon moving to New York is unconstitutional as applied to the defendant here, whose out-of-state conviction did not involve a sexually violent offense under New York law.​

 

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ALTHOUGH THE VICTIM, AFTER IDENTIFYING DEFENDANT IN A PHOTO ARRAY, ASKED TO SEE A SECOND PHOTO ARRAY, HER IDENTIFICATION OF THE DEFENDANT WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE; THERE WAS A STRONG DISSENT (FOURTH DEPT). ​

The Fourth Department, affirming defendant’s conviction, in a full-fledged opinion by Justice Greenwood, over a strong dissent, determined the one-witness identification of the defendant was not against the weight of the evidence. After identifying the defendant in a photo array the victim asked to see another photo array. In the second array she again picked out the defendant, but apparently she didn’t think she was identifying the same person. But she had in fact identified the same person from an older photograph:

In determining whether a verdict is against the weight of the evidence, we must first determine whether, “based on all the credible evidence[,] a different finding would not have been unreasonable” … . If so, “then [we] must, like the trier of fact below, ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” … . Weight of the evidence review is not an “open invitation” for an appellate court to substitute its judgment for that of the jury … . Rather, in reviewing the evidence, we “must give ‘[g]reat deference’ to the jury’s verdict . . . precisely because ‘[t]he memory, motive, mental capacity, accuracy of observation and statement, truthfulness and other tests of the reliability of witnesses can be passed upon with greater safety by those who see and hear than by those who simply read the printed narrative’ ” … . Stated another way, it is the “fact-finder[ ]” that has the “opportunity to view the witnesses, hear the testimony and observe demeanor” … , and “those who see and hear the witnesses can assess their credibility and reliability in a manner that is far superior to that of reviewing judges who must rely on the printed record” … .

Contrary to the conclusion of the dissent, the facts of this case do not warrant the substitution of our credibility determinations for those made by the jury …  We conclude that the second victim’s identification of defendant was not “incredible and unbelievable, that is, impossible of belief because it [was] manifestly untrue, physically impossible, contrary to experience, or self-contradictory” … . The issues of her identification of defendant and her credibility “were properly considered by the jury and there is no basis for disturbing its determinations” … . We note that the second victim “never wavered in her testimony regarding the events or her identification of defendant” … .People v Clark, 2024 NY Slip Op 03586, Fourth Dept 7-3-24

Practice Point: The criteria for a “weight of the evidence” appellate review is clearly illustrated here.

 

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THE PROSECUTOR WHO ARGUED DEFENDANT’S APPEAL WAS A CLERK FOR THE TRIAL JUDGE; PRIOR DECISION AFFIRMING THE CONVICTION VACATED AND CASE REMITTED FOR THE APPOINTMENT OF A SPECIAL PROSECUTOR (THIRD DEPT) ​

The Third Department, vacating its prior affirmance of defendant’s conviction, determined a special prosecutor should be appointed for the appeal because the appeal was handled by a prosecutor who had been the trial judge’s law clerk:

… [T]he Chief Assistant District Attorney (hereinafter ADA) who argued the appeal on behalf of the People was the confidential law clerk to the trial judge who presided over this matter and served in this capacity at the time of the underlying trial. … [D]efendant moved to vacate our prior determination and sought the appointment of a special prosecutor, arguing that the ADA had a conflict of interest under Rule 1.12 of the Rules of Professional Conduct (22 NYCRR 1200.0) disqualifying her from representing the People on appeal … . The ADA maintained that she did not have a conflict of interest because she was not “personally and substantially” involved in this matter as the trial judge’s law clerk, revealing that her involvement consisted of drafting County Court’s decision and order on defendant’s omnibus motion as well as the decision and order on the prosecutor’s motion for consolidation of the separate indictments filed against defendant and the codefendant … . We have determined that the ADA’s involvement in this matter as the trial judge’s law clerk was personal and substantial … . Moreover, defendant did not provide written informed consent waiving the conflict and the required screening procedures were clearly not undertaken “to prevent the flow of information about the matter between the personally disqualified lawyer and the others in the [District Attorney’s office]” … . … [T]he decision on appeal is being withheld and the matter remitted to County Court for the expeditious appointment of a special prosecutor … . People v Butts, 2024 NY Slip Op 03567, Third Dept 7-3-24

Practice Point: If the prosecutor handling the appeal was a clerk for the trial judge at the time of defendant’s trial, there is a conflict requiring the appointment of a special prosecutor for the appeal. Here the decision affirming the conviction was vacated and the matter was remitted for the appointment of a special prosecutor.

 

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LEVEL ONE SEX OFFENDERS MUST REGISTER UNDER SORA FOR 20 YEARS; LOW RISK-LEVEL SEX OFFENDERS WHO WERE REGISTERED IN ANOTHER STATE AND WHO RELOCATE TO NEW YORK ARE NOT ENTITLED TO CREDIT FOR THE TIME THEY WERE REGISTERED OUT-OF-STATE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over two dissenting opinions (three judges), determined sex offenders registered in other states who are designated level-one risks upon relocating to New York are not entitled to credit for the time they were registered in another state:

Generally, those convicted of sex offenses in other states must register under the Sex Offender Registration Act ([SORA] …) upon relocating to New York … . While the statute requires some sex offenders to register for life … , those in the lowest risk category register for a term of 20 years … . The issue here is whether the statute entitles sex offenders who are classified in that lowest risk category upon relocating to New York to credit for their time registered as sex offenders under the laws of other states. We hold that it does not … .

Defendant in each of these appeals was convicted in another state of an offense that required him to register as a sex offender under the laws of that state. Some years later, each defendant relocated to New York and was required to register as a level-one risk under SORA. Neither is designated a sexual predator, sexually violent offender, or predicate sex offender. During the risk level determination hearings under Correction Law § 168-k (2), each defendant requested that Supreme Court order him registered nunc pro tunc to the date when he registered as a sex offender in the state where he was convicted of his sex offense, in effect giving him credit for the time registered in the foreign jurisdiction against the 20-year registration period. * * *

We recognize that the statute, as written, may lead to unfair results in some circumstances. For example, an offender with a minimal risk of reoffense who has spent substantial time compliant with an effectively administered out-of-state registry scheme without having reoffended would seem to deserve credit for that time as a matter of policy. Moreover, the diversion of public resources and attention towards offenders such as these arguably undermines the state’s effort to protect the public against genuinely dangerous offenders. On the other hand, not all state registry schemes are necessarily created equal, for example, in terms of supervision and registration requirements, and there is no specific mechanism under SORA for a court to determine whether a foreign state’s administration of its registry is as exacting as New York’s or the extent to which a particular offender complied with his obligations under that state’s statute and remained free of reoffense. People v Corr, 2024 NY Slip Op 03379, CtApp 6-20-24

Practice Point: Low risk-level sex offenders who relocate to New York are not entitled to credit for the time they were registered out-of-state. They must remain registered in New York for twenty years.

 

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THE “ESSENTIAL ELEMENTS” TEST SHOULD BE USED TO DETERMINE WHETHER AN OUT-OF-STATE NON-SEXUAL CONVICTION CAN BE USED TO ASSESS RISK-LEVEL POINTS UNDER SORA (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, determined the “essential elements” test must be used to determine whether a defendant should be assessed risk-level points for non-sexual offenses committed out-of-state. Defendant relocated to New York and was subject to a SORA risk-level assessment based upon a Washington child molestation conviction. Defendant had been convicted of driving while intoxicated in Texas for driving in circles in a grassy area in a park. New York’s DWI statutes do not criminalize such off-road driving. Therefore the Texas conviction should not have been used to assess risk-level points under SORA: In addition the commission of the Washington child molestation offense predated a Washington DWI conviction. Therefore the Washington DWI should not have been used to calculate the risk-level because it was not part of defendant’s “prior criminal history:”

Pursuant to the essential elements test, a court must “compare the elements of the foreign offense with the analogous New York offense to identify points of overlap” and, “where the offenses overlap but the foreign offense also criminalizes conduct not covered under the New York offense, the [court] must review the conduct underlying the foreign conviction to determine if that conduct is, in fact, within the scope of the New York offense” … . … This Court and the other Departments previously have deemed it appropriate to utilize the essential elements test to determine whether a foreign conviction falls within the scope of a New York offense to assess points under any category of risk factor 9 … .. Such application ensures that courts properly assess “prior crimes” and accurately determine a sex offender’s risk level in accordance with acts that the Legislature has deemed apt to criminalize (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 6 [2006]). Consequently, to the extent that we have not expressly held that the essential elements test should be utilized to determine whether a foreign conviction supports the assessment of any points under risk factor 9, we hold so now. People v Pardee, 2024 NY Slip Op 03360, Third Dept 6-20-24

Practice Point: Here the Third Department expressly adopted the “essential elements” test for determining whether an out-of-state DWI can be used to assess risk-level points under SORA. The elements of the Texas DWI statute are different from the elements of New York’s DWI statutes. Defendant’s driving in circles on a grassy area of a park would not constitute DWI in New York. Therefore the Texas conviction should not have been used to assess points.

 

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ALTHOUGH RESPONDENT SEX OFFENDER VIOLATED RULES IMPOSED BY THE “STRICT AND INTENSIVE SUPERVISION” (SIST) REGIMEN, HE DID NOT EXHIBIT ANY DANGEROUS SEXUAL BEHAVIOR; THEREFORE RESPONDENT SHOULD NOT HAVE BEEN CONFINED AND SHOULD BE RELEASED AND MANAGED UNDER “SIST” (FIRST DEPT).

The First Department, reversing Supreme Court, determined that, although respondent sex offender violated some of the rules associated with his released into the community, the violations were not related to sexual behavior. Therefore respondent should not be confined and should be released to the community and managed under SIST (strict and intensive supervision):

It is undisputed that, during the relevant period, respondent made no sexual threats, did not approach any treatment staff in a sexual manner, and did not express any sexual impulses or urges. We agree with our sister department that “in the absence of evidence of sexually inappropriate conduct while on SIST, it becomes incumbent on the State to demonstrate a persuasive link between a nonsexual SIST violation and the offender’s ability to control his sexual behavior” … . “A mere tendency to engage in risky or socially undesirable conduct — even if that conduct provides an opportunity for, or increases the likelihood of, sexual offending — is quintessentially insufficient to establish ‘inability’ under the Michael M. formulation” (George N., 160 AD3d at 31 …). Finally, a respondent’s mere struggling with sexual urges is insufficient to show inability to control … . Matter of State of New York v Anthony R., 2024 NY Slip Op 03392, First Dept 6-20-24

Practice Point: A sexual offender who has not exhibited any dangerous sexual behavior under SIST should be released and management under SIST should be continued. Confinement is not justified by non-sexual SIST violations.

 

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THE STATUTE REQUIRING THE PEOPLE TO FILE A CERTIFICATE OF COMPLIANCE WITH THEIR DISCOVERY OBLIGATIONS IN ORDER TO BE READY FOR TRIAL WENT INTO EFFECT ON JANUARY 1, 2020; REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD A VALID READY-FOR-TRIAL ANNOUNCEMENT MADE PRIOR TO JANUARY 1, 2020, WAS NOT AFFECTED BY THE NEW STATUTE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Singas, over a concurring opinion and a dissenting opinion, determined the new statutory discovery obligations imposed upon the People, effective January 1, 2020, did not affect a valid ready-for-trial announcement made prior to January 1, 2020. The Appellate Division held the new statute required the People to file a Certificate of Compliance to be ready for trial and the failure to do so mandated dismissal on speedy-trial grounds:

On January 1, 2020, amendments to New York’s discovery (CPL art 245) and statutory speedy trial (CPL 30.30) rules went into effect, and the old discovery rules (CPL former art 240) were repealed … . On January 27, the first day of trial, defendant moved to dismiss the indictment on statutory speedy trial grounds, arguing that the People had become unready for trial when the amendments came into effect and had failed to file a certificate of compliance with the new discovery rules (COC) as required by the amendments and announce their readiness before their statutory speedy trial time expired. * * *

There is no evidence, in the plain language of the amendments or the legislative history, that the legislature intended to—or did—revert the People to a state of unreadiness on January 1, 2020. Rather, the amendments specifically tie the COC requirement to the People’s ability to state ready and be deemed ready. Because the legislature established the COC requirement as a condition precedent to declaring ready for trial and did not indicate an intent to undo the People’s prior readiness statements, there is no basis to apply that requirement prospectively to a case such as the present one where the People were in a trial-ready posture when it went into effect. In other words, the People are not required to fulfill a prerequisite to declaring trial readiness when they have already validly declared ready for trial. Accordingly, the only way to apply the COC requirement to this case would be to wholesale invalidate the People’s pre-2020 readiness statement—not to render the People unready as of January 1, 2020. Because the language of the amendments does not “expressly or by necessary implication require” this plainly retroactive application, we cannot conclude that the legislature intended for the COC requirement to apply in this manner … . Consequently, the People are not chargeable for any delay after January 1, 2020, and thus remained within the applicable 181-day statutory speedy trial limit … . People v King, 2024 NY Slip Op 03322, CtApp 6-18-24

Practice Point: Here the People made a valid ready-for-trial announcement before the new discovery statute went into effect on January 1, 2020. The trial started on January 27, 2021, and the defense moved to dismiss on speedy trial grounds because the People never filed a certificate of compliance, a new statutory requirement for readiness for trial. The Appellate Division dismissed the case on that ground. The Court of Appeals reversed, finding the pre-January 1, 2020, ready-for-trial announcement was unaffected by the new statutory requirements.

 

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THE TRIAL COURT PROPERLY RULED THE PEOPLE PROVIDED RACE-NEUTRAL REASONS FOR STRIKING TWO BLACK JURORS; THE TRIAL COURT PROPERLY RULED THE HANDCUFFED DEFENDANT’S SHOW-UP IDENTIFICATION PROCEDURE WAS PROPER (CT APP).

The Court of Appeals, affirming the trial court’s Batson and suppression rulings, in a full-fledged opinion by Judge Cannataro, over a three-judge dissenting opinion, determined the trial court’s rulings (1) the People demonstrated race-neutral reasons for striking two Black jurors and (2) the show-up identification of the defendant, who was handcuffed, was proper:

Overall, C.C.’s responses gave rise to a reasonable inference that: (1) he viewed the arrest of his cousin for marijuana possession as a crime against his cousin; (2) he viewed the arrest of his cousin as a “raid” by police; and (3) his negative feelings towards police could affect his view of police witnesses in the case, regardless of any contradictory assurances he might have given. These inferences are patently reasonable and the trial court’s determination that the non-discriminatory reasons offered by the People in support of their peremptory strike of C.C. were credible and non-pretextual finds ample support in the record … . * * *

The People expressed concern that K.C.’s job duties would cause her to be inappropriately sympathetic to defendant. K.C.’s job involved determining whether juvenile offenders would be entitled to intake diversion, or face prosecution, and she was previously employed as a caseworker. We have previously recognized that a party may permissibly strike a juror “who works in a certain field . . . because that party believes—for reasons unrelated to the facts of the case—that such individual may have a more sympathetic attitude or view toward the opposing party” … . * * *

Although this Court has stated that a showup procedure in which a suspect is handcuffed and in the presence of police is “suggestive and not preferred” and “presses judicial tolerance to its limits” … , we have concluded that, such a showup is “reasonable under the circumstances” when it is conducted in close geographic and temporal proximity to the crime … . When a showup is done as part of “one unbroken chain of events—crime, escape, pursuit, apprehension and identifications” such a procedure is acceptable … . As we have recognized, ” ‘prompt showup identifications by witnesses following a defendant’s arrest at or near the crime scene have been generally allowed” ,,, . Moreover, “[w]hether a crime scene showup is unduly suggestive is a mixed question of law and fact. Thus, if record evidence supports the determination below, this Court’s review is at an end” …. . People v Wright, 2024 NY Slip Op 03320, CtApp 6-18-24

Practice Point: A show-up identification procedure in close geographical and temporal proximity to the crime can be proper, even when the defendant is handcuffed.

 

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AFTER A VALID TRAFFIC STOP, DEFENDANT WAS DETAINED WHILE HIS PAROLE OFFICER WAS CALLED TO THE SCENE; DEFENDANT’S CAR WAS THEN SEARCHED AND HEROIN WAS FOUND; THE MATTER WAS REMITTED TO DETERMINE WHETHER DEFENDANT WAS PROPERLY DETAINED UNDER THE “REASONABLE SUSPICION” STANDARD, NOT THE “RIGHT TO INQUIRE” STANDARD APPLIED BY THE SUPPRESSION COURT (CT APP). ​

The Court of Appeals, remitting the case for a determination of the suppression motion under the “reasonable suspicion” standard, in a full-fledged opinion by Judge Cannataro, over an extensive dissenting opinion, determined there was a question whether the defendant was illegally detained after a valid traffic stop to allow investigation of a possible parole violation. The parole officer was called to the scene, the defendant’s car was searched, and heroin was found:

The proper standard for detaining an individual beyond “the time reasonably required” to complete a traffic stop is reasonable suspicion … . Given that a traffic stop is a “limited seizure” of the occupants of a vehicle, “[f]or a traffic stop to pass constitutional muster, the officer’s action in stopping the vehicle must be justified at its inception and the seizure must be reasonably related in scope, including its length, to the circumstances which justified the detention in the first instance” … . A “continued involuntary detention of [a] defendant . . . constitute[s] a seizure in violation of their constitutional rights, unless circumstances coming to [the officer’s] attention following the initial stop furnishe[s] . . . reasonable suspicion that they were engaged in criminal activity” … . Likewise, the United States Supreme Court has held that “[a] seizure justified only by a police-observed traffic violation . . . become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission of issuing a ticket for the violation” … . In this vein, although that “mission” encompasses ” ‘ordinary inquiries incident to [the traffic] stop,’ ” it does not include additional measures designed to detect evidence of criminality … . Thus, an otherwise lawful traffic stop may not be prolonged “absent the reasonable suspicion ordinarily demanded to justify detaining an individual” … .

… [T]here is record support for the affirmed finding that the traffic stop was justified at its inception, based upon the police officer’s observation that defendant committed a traffic infraction … . However, the courts below evaluated whether the traffic stop was prolonged beyond the time reasonably required for its completion under the founded suspicion standard applicable to the common law right to inquire … , a lesser standard than the reasonable suspicion necessary to prolong a traffic stop. As a result, remittal is necessary to allow for consideration of this issue under the proper standard. People v Thomas, 2024 NY Slip Op 03319, CtApp 6-18-24

Practice Point: After a valid traffic stop, the question whether defendant was properly detained to allow inquiry into suspected crimes unrelated to the traffic infraction is analyzed under the “reasonable suspicion” standard, not the lesser “right to inquire” standard.

 

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ALTHOUGH THE NOTICE OF THE INTENT TO PRESENT PSYCHIATRIC EVIDENCE DEMONSTRATING DEFENDANT’S LACK OF CAPACITY TO COMMIT ARSON WAS “1400 DAYS LATE,” THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO ACCEPT THE LATE NOTICE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a three-judge dissent, determined the trial court abused its discretion in refusing to accept late notice of the intent to present psychiatric evidence as a defense to the arson charge. The defendant had been evaluated and treated for mental illness since childhood. When a new attorney was assigned to the defense, the notice of the intent to present psychiatric evidence was served “1400 days late.” The defense sought to introduce expert testimony to demonstrate defendant did not have the capacity to commit arson at the time of the offense:

We … hold that the trial court’s application of CPL 250.10 precluding Mr. Sidbury’s [defendant’s] psychiatric defense was an abuse of discretion. We have been clear that the governing principle animating CPL 250.10 is “procedural fairness and orderliness” with the intention of “eliminating the element of surprise” for the prosecution … . The statute formulates a procedure for defendants to serve notice of their intent to present psychiatric evidence that is “prepared and presented manageably and efficiently,” such that it allows for “proper notification, adversarial examination, and preclusion when appropriate” … . * * *

Although the statute provides for service of the notice within 30 days of the defendant’s not-guilty plea, the court has discretion to permit service of a late notice “[i]n the interest of justice and for good cause shown” … . Late notice is permissible “at any time prior to the close of evidence”—including after trial has commenced  … .

The decision to permit late notice is within the discretion of the trial court … . That discretion, however, is “not absolute,” because “[e]xclusion of relevant and probative testimony as a sanction for a defendant’s failure to comply with a statutory notice requirement implicates a defendant’s constitutional right to present witnesses in [their] own defense” … . Instead, the trial court must “weigh [the defendant’s constitutional] right against the resultant prejudice to the People from the belated notice” … . People v Sidbury, 2024 NY Slip Op 03318, CtApp 6-18-24

Practice Point: Although service of notice of intent to present psychiatric evidence as a defense should be made within 30 days of the not-guilty plea, the court has the discretion to accept late notice at any time prior to the close of evidence (because the constitutional right to present a defense is at stake).

 

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