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Taking a Position Adverse to Client’s Pro Se Motion to Withdraw a Guilty Plea Constitutes Ineffective Assistance of Counsel

The Third Department noted that counsel may not take a position adverse to the client’s pro se motion to withdraw a guilty plea.  To do so constitutes ineffective assistance of counsel:

We agree with defendant’s contention that he received ineffective assistance of counsel inasmuch as his new counsel took a position adverse to his with regard to the motion to withdraw his plea. “While defense counsel is not required to support a pro se motion to withdraw a guilty plea, counsel ‘may not take a position . . . that is adverse to the defendant'” … . Although defendant was properly permitted to obtain a new attorney, he was denied the effective assistance of counsel when such counsel “affirmatively undermined arguments [that defendant]; wished the court to review” … . Accordingly, the matter must be remitted for reconsideration of defendant’s motion, for which he must be represented by new counsel. People v Russ, 2014 NY Slip Op 04084, 3rd Dept 6-5-14

 

Nature of a Repugnant Verdict Explained—Here the Verdict Convicting Defendant of Criminal Possession of a Controlled Substance and Acquitting Defendant of Criminal Sale of a Controlled Substance Was Not Repugnant—The Proof at Trial Plays No Part in the Repugnancy Analysis

The Third Department determined County Court should not have determined a verdict was repugnant and sent the jury back for further deliberations.  The Third Department vacated the defendant's conviction on the relevant count.  In the course of the decision the Third Department explained the nature of a repugnant verdict, noting that the proof at trial plays no part in the analysis:

Contrary to defendant's assertion, the jury's initial verdict — convicting him of criminal possession of a controlled substance in the third degree and acquitting him of criminal sale of a controlled substance in the third degree — was not repugnant. “[A]; verdict as to a particular count shall be set aside [as repugnant]; only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury” … . In assessing a repugnancy claim, “we must review the elements of the offenses as charged to the jury without regard to the proof that was actually presented at trial. Thus, [i];f there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support. . . . In this context, the apparently illogical nature of the verdict — as opposed to its impossibility — is viewed as a mistake, compromise or the exercise of mercy by the jury, none of which undermine[s]; a verdict as a matter of law” … .

Here, upon reviewing the elements of the subject offenses, it is readily apparent that the jury's verdict was not repugnant. Criminal sale of a controlled substance in the third degree requires proof that the defendant knowingly and unlawfully sold a narcotic drug (see Penal Law § 220.39 [1]), whereas criminal possession of a controlled substance in the third degree requires only, insofar as is relevant here, that the defendant knowingly and unlawfully possessed a narcotic drug with intent to sell it (see Penal Law § 220.16 [1]). Notably, a “[d];efendant's acquittal on the [sale count]; does not negate the elements of the [possession count], for a person can possess and intend to sell a narcotic drug, but not actually accomplish a sale” … . Defendant's argument to the contrary is predicated upon the specific proof adduced at trial, which — the Court of Appeals has instructed — is to play no role in our analysis of a repugnancy claim … . As the jury's initial verdict was not repugnant, County Court should have denied defendant's motion, accepted the jury's verdict and adjourned the matter for sentencing. Instead, County Court implicitly granted defendant's motion, devised a special verdict sheet and directed the jury to resume deliberations. People v Kramer, 2014 NY Slip Op 04085, 3rd Dept 6-5-14

 

Parole Violators May Apply for Resentencing Under Drug Law Reform Act—County Court Properly Denied the Application Based Upon the Nature of Defendant’s Convictions and Serious Prison Infractions

In affirming County Court’s denial of defendant’s motion for resentencing under the Drug Law Reform Act, the Third Department noted that the fact that defendant violated parole did not prevent him from applying for resentencing:

While parole violators may indeed apply for resentencing, denial of such an application may be warranted if they “have shown by their conduct that they do not deserve relief from their sentences” … . Defendant has a violent criminal history and, indeed, his most recent criminal conviction and parole violation stem from his possession of a defaced and loaded handgun. The record further reveals that defendant has a lengthy record of serious prison disciplinary infractions, many of them involving violence. We thus find that, notwithstanding defendant’s positive programming achievements while incarcerated, “County Court properly exercised its discretion in finding that substantial justice would not be served by resentencing” him … . People v Allen, 2014 NY Slip Op 04087, 3rd Dept 6-5-14

 

Parole Conditions Did Not Require Parolee to Report Brief, Incidental Contact with Children to His Parole Officer—Parole Violation Determination Annulled

The Third Department annulled the finding that petitioner had violated his parole by not reporting brief contact with a child.  Petitioner was doing construction work when a coworker’s daughter emerged briefly approached petitioner and the coworker:

“It is well established that a parole revocation decision will be upheld so long as ‘the procedural requirements were followed and there is evidence which, if credited, would support such determination'” … . Notably, in order to warrant revocation, the alleged parole violation must be supported by a preponderance of the evidence (see Executive Law § 259-i [3]; [f]…), which we find lacking in the record before us. * * *

The parole conditions did not clearly require petitioner to report such an insignificant encounter to his parole officer, however, and petitioner testified that he did not know that he needed to do so. Further, while the coworker’s children were occasionally present during lunch breaks at the work site, they largely remained outside the eating area and there was no showing that petitioner had any contact with the children during such times. In view of this, petitioner’s parole conditions did not plainly require him to report such information to his parole officer. Accordingly, given the absence of probative evidence supporting the charge that petitioner failed to truthfully report his activities to his parole officer, the determination finding that he violated his parole in this regard must be annulled… . Matter of Peck v Evans, 2014 NY Slip Op 04107, 3rd Dept 6-5-14

 

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Prosecution by Misdemeanor Information Waived by Defense Counsel; Facts Alleged In Support of the Obstruction of Governmental Administration Charge Were Sufficient to Meet Requirements of a Misdemeanor Complaint

In a full-fledged opinion by Judge Rivera, over a dissent, the Court of Appeals determined the defendant had waived his right to be prosecuted by a misdemeanor information and the misdemeanor complaint to which he pled guilty sufficiently alleged the obstruction of governmental administration.  Defense counsel's statement “so waived” was deemed adequate to waive prosecution by information.  The misdemeanor complaint alleged that defendant stood behind a police vehicle after slamming the trunk shut. Those allegations were deemed sufficient to allege defendant intended to prevent the officer from patrolling the area. The dissent argued those factual allegations were insufficient to inform defendant of the nature of the charge:

“A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” … . Under the CPL, a court must use one of two instruments to take jurisdiction over a defendant accused of a misdemeanor: a misdemeanor complaint or a misdemeanor information. A misdemeanor complaint authorizes jurisdiction over an accused, and can commence a criminal action and allow the state to jail the defendant for up to five days, but it cannot serve as a basis for prosecution, unless the defendant waives prosecution by information (see CPL 100.10 [4]; 120.20 [1]; [a]; 170.65 [1], [3]; 170.70…). Concomitantly, unless waived, a valid information is a jurisdictional requirement for a misdemeanor prosecution (see CPL 100.10 [4]…).

A misdemeanor information must set forth “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof” … . We have called this “the prima facie case requirement” (Kalin, 12 NY3d at 229). An information serves the same role in a misdemeanor prosecution as a grand jury indictment does in a felony case: it ensures that a legally sufficient case can be made against the defendant … . A misdemeanor complaint, in comparison, need only set forth facts that establish reasonable cause to believe that the defendant committed the charged offense … .

A defendant may knowingly and intelligently waive prosecution by misdemeanor information, as demonstrated by an affirmative act … . When the defendant waives prosecution by information, he or she declines the protection of the statute, and the accusatory instrument must only satisfy the reasonable cause requirement (see CPL 170.65 [1], [3]…). People v Dumay, 2014 NY Slip Op 04038, CtApp 6-5-14

 

Error in Grand Jury Presentation Did Not Raise a Question of Prejudice Sufficient to Justify Dismissal of the Indictment

The Court of Appeals determined the grand jury proceedings were not rendered invalid by the presentation of the videotaped testimony of the child-victim who had not been administered an oath.  After realizing the oath had been omitted, the prosecutor presented the testimony to the grand jury again, this time preceded by the oath.  The Court of Appeals found the defendant had not established the possibility of prejudice:

The People do not dispute that an oath should have been administered to Jane during the first testimonial recording (see e.g. CPL 60.20 [2]; CPL 190.32 [5]…). On these facts, however, the error does not meet the “very precise and very high” statutory standard of impairment for grand jury proceedings … . The lack of an oath was not the product of a nefarious design to deliberately cause unfairness to defendant. Rather, it was an oversight that the People sought to correct by securing judicial permission to record a second interview in which Jane swore to be honest and verified the truth of her prior statements. The grand jury then watched the second video and was instructed that the recording was made because Jane had not taken an oath during her first examination. Based on these circumstances, defendant has not established a possibility of prejudice justifying the exceptional remedy of dismissal of the indictment… .  People v Wisdom, 2014 NY Slip Op 04040, CtApp 6-5-14

 

Plea to a Lesser Offense Need Not Be Supported by Facts Admitted in a Plea Allocution—Court’s Unnecessary Attempt to Have Defendant Admit to Facts in Support of All of the Elements of the Lesser Offense Required Vacation of the Plea

The Court of Appeals determined defendant's guilty plea was tainted by the court's and counsel's confusion about the allocution which was required.  The defendant was charged with rape by forcible compulsion (first degree) and pled guilty to a lesser rape offense–i.e., sexual intercourse with a person incapable of consent by reason of being mentally incapacitated.  The lower court and counsel, according to the court of appeals, were under the misimpression that the plea allocution must included factual allegations supporting every element of the lesser offense:

Where a defendant enters a negotiated plea to a lesser crime than one with which he is charged, no factual basis for the plea is required (People v Clairborne, 29 NY2d 950, 951 [1972]…). Indeed, under such circumstances defendants can even plead guilty to crimes that do not exist (People v Foster, 19 NY2d 150, 153 [1967]; [plea to attempt to commit a crime of which intent is not an element]).

It seems, however, that at the time of defendant's plea counsel and the court were unaware of the rule of Clairborne, and thought it necessary to find a basis in fact for the plea. The court led defendant through an allocution in which he admitted that he encountered the victim when she was “too drunk to really make a decision about whether she did or did not want to have sex”; that he knew that “she was mentally incapacitated apparently from drinking”; and that he “went ahead and had sexual intercourse with her anyway.” The allocution provided no support for the idea that the victim was mentally incapacitated as the Penal Law defines that term. * * *

We conclude that we must reverse and vacate the plea. Although the entire allocution was unnecessary, and although even if it were necessary we would not require that it prove every element of the crime charged …, we simply cannot countenance a conviction that seems to be based on complete confusion by all concerned … . People v Johnson, 2014 NY Slip Op 04039, CtApp 6-5-14

 

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Where There Is Evidence, Other than or in Addition to a Chemical Test, of a Blood Alcohol Content, the Jury Can Be Instructed that It May Base Its Verdict on Its Own Finding Re: Blood Alcohol Content

The Court of Appeals determined defendant was not entitled to a jury instruction that a “blood alcohol content of less that .08 is prima facie evidence defendant was not intoxicated” on the basis of her expert's testimony that her blood alcohol content was below .08 at the time she was driving (her subsequent blood alcohol test result was .09).  However, the Court of Appeals explained the defendant could have requested a jury instruction which would allow the jury to find she was not intoxicated if the jury first made the finding her blood alcohol level was below .08:

Since the evidence of her BAC that defendant presented here was not determined by a chemical test but was contained in the opinion of a defense expert, that evidence did not have the “prima facie” effect specified by the statute and defendant was not entitled to the charge she sought.

…It should not be thought, however, that the BAC thresholds specified in Vehicle and Traffic Law § 1195 (2)(A) must be entirely omitted from a jury charge in a common law DWI case or in a driving while ability impaired (DWAI) case brought under Vehicle and Traffic Law § 1192 (1) (“No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol”). It is obvious from Vehicle and Traffic Law §§ 1192 (2) and 1195 (2) that the Legislature has made judgments about the significance of certain statistical thresholds — i.e., that a BAC of .08% or more justifies an inference of intoxication; that a BAC below .08% justifies an inference of non-intoxication; that a BAC above .07% justifies an inference of impairment; and that a BAC equal to or less than .05% justifies an inference that the driver was neither intoxicated nor impaired in her ability to drive. There is no reason why juries should remain unaware of these legislative judgments.

Thus, in this case Town Court should, if it had been requested to do so, have charged the jury in words or substance: If you find that there was less than .08 of one percent by weight of alcohol in defendant's blood while she was operating the motor vehicle, you may, but are not required to, find that she was not in an intoxicated condition. Similarly, in a DWAI case where the defendant proffers evidence other than chemical tests of a BAC at or below .05%, it would be proper to charge: If you find that there was .05 of one percent or less by weight of alcohol in the defendant's blood while she was operating a motor vehicle, you may, but are not required to, find that her ability to operate the motor vehicle was not impaired by the consumption of alcohol. And the People are entitled to a corresponding charge when they rely on evidence other than chemical tests to show that a defendant's BAC was above .08% in a DWI case, or above .07% in a DWAI case.  People v Fratangelo, 2014 NY Slip Op 04041, CtApp 6-5-14

 

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Given the Surrounding Circumstances, the Allegation that the Juvenile Was in Possession of a Machete Was Sufficient to Allege the Juvenile Was in Possession of a “Dangerous Knife” within the Meaning of the Penal Law

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined a juvenile delinquency petition which alleged the juvenile was in possession of a machete sufficiently alleged the statutory element of possession of a “dangerous knife:”

The statute does not define the term “dangerous knife.” In Matter of Jamie D. (59 NY2d 589 [1983]), however, this Court held that the term, as used in the statute, “connotes a knife which may be characterized as a weapon” (id. at 592). We explained that certain knives may fall within the scope of the statute based solely on the knife's particular characteristics. For instance,”a bayonet, a stiletto, or a dagger” would come within the meaning of “dangerous knife” because those instruments are “primarily intended for use as a weapon” (id. at 592-93).

We also explained that other knives, which are designed and primarily intended for use as “utilitarian utensils,” may also come within the statutory language in at least two ways (id. at 593). First, a knife may be converted into a weapon, and second, “the circumstances of its possession, although there has been no modification of the implement, may permit a finding that [*4]on the occasion of its possession it was essentially a weapon rather than a utensil” (id. at 593).

A “machete” is generally defined as “a large, heavy knife that is used for cutting plants and as a weapon” (http://www.merriam-webster.com/dictionary/machete). While a machete has utilitarian purposes, under the circumstances of this case, it would be unreasonable to infer from the statement supporting the petition that respondent was using the machete for cutting plants. Rather, the arresting officer's description of the “machete”, with its 14-inch blade, being carried by respondent late at night on a street in Brooklyn, adequately states “circumstances of . . . possession” (Jamie D. at 593) that support the charge that defendant was carrying a weapon. Matter of Antwaine T, 2014 NY Slip Op 04042, CtApp 6-5-14

 

Court Must Make a Youthful Offender Determination Even When Defendant Waives It

The First Department noted that the sentencing court must consider youthful offender treatment for every eligible youth even where the defendant waives the youthful offender determination as part of a negotiated plea:

…[T]he Court of Appeals in People v Rudolph (21 NY3d 497 [2013]) that CPL 720.20(1) requires “that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain” requires a new sentencing proceeding. Although defendant pleaded guilty to an armed felony, he was potentially eligible under CPL 720.10(3), and he was thus entitled to a determination … . This issue survives defendant’s waiver of his right to appeal … . People v Malcolm, 2014 NY Slip Op 04050, 1st Dept 6-5-14

 

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