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Trial Court’s Decision to Conduct Trial in Defendant’s Absence Without Consideration of the Factors Mandated for Consideration by the Court of Appeals Required Reversal

The Third Department reversed defendant’s conviction because the trial judge did not consider the appropriate factors before continuing with the trial without the defendant’s presence:

“A defendant’s right to be present in the courtroom during his or her trial is one of the most basic rights guaranteed by the Federal and New York Constitutions, and by statute” … . Even where, as here, “a defendant has waived the right to be present at trial by not appearing after being apprised of the right and the consequences of nonappearance, trial in absentia is not thereby automatically authorized”… . Rather, it must also appear from the record that the trial court considered “all appropriate factors” before proceeding in defendant’s absence, “including the possibility that defendant could be located within a reasonable period of time, the difficulty of rescheduling [the] trial and the chance that evidence will be lost or witnesses will disappear” … . As the Court of Appeals has instructed, “[i]n most cases the simple expedient of adjournment pending execution of a bench warrant could provide an alternative to trial in absentia unless, of course, the prosecution can demonstrate that such a course of action would be totally futile” … .

Here, the record fails to demonstrate that Supreme Court considered any of the appropriate factors. When defendant failed to appear on the morning that trial was scheduled to commence, defense counsel represented to the court that he had no information as to defendant’s whereabouts and requested an adjournment. Supreme Court declined to grant an adjournment, issued a bench warrant for defendant’s arrest and pronounced its decision to proceed immediately to trial. People v June, 105292, 3rd Dept 4-3-14 

 

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Appeals Not Pursued for a Decade or More Properly Dismissed

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined, with respect to three of four defendants, dismissal of the appeals was appropriate. The appeals were not pursued for more than a decade, in one case more than two decades, after the filing of the notices of appeal, and the excuses for inaction were found insufficient.  With respect to the fourth defendant, counsel had never reviewed the record. Therefore, defendant’s right to appellate counsel had not been honored. The matter was sent back for the appointment of appellate counsel and submissions, after which the motion to dismiss the appeal could be properly considered.  People v Perez, 2014 NY Slip Op 02326, CtApp 4-3-13

 

Two Dissenting Justices Found Defendant’s Sentence Excessive Under the Facts

The First Department, over a two-justice dissent, found that the defendant’s application for resentencing under the Drug Reform Act was properly denied.  The decision is notable for the dissents, which forcefully argued defendant’s sentence was harsh and excessive in light of all the facts. People v Lovett, 2014 NY Slip Op 02329, 1st Dept 4-3-14

 

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Defense Counsel Did Not Provide Effective Assistance

The First Department determined the defendant did not receive effective assistance of counsel.  Counsel did not object to inadmissible hearsay which corroborated the complainant’s testimony, counsel did not subpoena medical records or call a medical expert despite proof at the first trial the evidence of complainant’s injury was unsupported, and counsel did not impeach the complainant by confronting her with her prior inconsistent statements:

in a case that depended heavily on the credibility of the complainant, counsel failed to object to hearsay testimony indicating that several unnamed out-of-court declarants supported the complainant’s version of the incident. These bystander statements were not admissible under any theory, and we reject the People’s arguments to the contrary. These declarations did not qualify as excited utterances, and, under the circumstances of the case, they were not admissible as background information to complete the narrative and explain police actions. At a prior trial, at which defendant was represented by different counsel, and which ended in a hung jury, the content of these declarations was not placed in evidence.

We are unable to discern any strategic basis for counsel’s failure to object to this highly prejudicial hearsay evidence. Any benefit that defendant may have gained when his counsel attempted to suggest that a police witness fabricated the existence of the bystander declarations was clearly outweighed by the prejudicial effect of having the jury hear the declarations in the first place. Defendant had nothing to lose, and much to gain, by keeping the declarations completely out of the case. Furthermore, the trial record reveals that counsel was unaware, and apparently surprised, that the content of these declarations was not in evidence at the first trial. This tends to suggest that counsel’s failure to object had nothing to do with strategy. People v Ugweches, 2014 NY Slip Op 02333, 1st Dept 4-3-14

 

Denial of For Cause Juror Challenges Required Reversal

After determining one of the counts of the sex-offense indictment must be dismissed as duplicitous because more than one offense was alleged to have taken place during the  time period described in the count, the Third Department reversed defendant’s conviction finding that for cause challenges to jurors should have been granted:

It is well established that “a prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial” … . When a juror’s impartiality is in doubt, it is the court’s obligation to make further inquiries and to excuse the juror if the doubt is not fully dispelled … . In this respect, the court should err on the side of disqualification, as “the worst [it] will have done in most cases is to have replaced one impartial juror with another impartial juror” (…see CPL 270.20 [1] [b]; [2]…). Conversely, the denial of a challenge for cause to a biased juror calls fundamental fairness into question and “casts a doubt on the legitimacy of the verdict even before the trial begins” … .Here, one juror stated that his job experience as a correction officer “might” affect his ability to be impartial; when asked whether his employment would prevent him from applying “basic principles” granting certain rights to defendant, he responded, “It may.” A second juror said that her husband’s employment in law enforcement “could” cause her to give greater weight to a police officer’s testimony, and a third juror said that he could not “guarantee” that he would follow an instruction not to grant greater weight to such testimony. A fourth juror stated that her husband’s work as a sheriff’s deputy would”[p]ossibly” cause her to hesitate in providing defendant his constitutional protections; she further confirmed that she would be reluctant to apply the presumption of innocence. A fifth juror said that she believed that children who accused parents of sexual abuse could not lie, and a sixth juror agreed with other jurors that it was “highly unlikely” that a child would lie about this subject, and that it was probable that such a charge must be true because of its seriousness. Finally, a seventh juror expressed doubt when asked whether she would draw an adverse inference from a defendant’s choice not to testify, explaining that “it brings the question up why wouldn’t you[?]” Although she stated that she would follow the judge’s instructions in this regard, she added that she could not “control myself to take something that’s already in my mind away.” The prosecutor advised County Court that at least one of these jurors required rehabilitation because of such expressions of uncertainty, stating that “there should be inquiry from the court. “Nevertheless, the jurors were not questioned further, and none made “unequivocal assertion[s] of impartiality”… . People v Russell, 105083, 3rd Dept 4-3-14

 

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Failure to Challenge Conviction Rendered Invalid by Not Advising Defendant of the Period of Post Release Supervision [PRS] Constitutes Ineffective Assistance of Counsel

The First Department determined the defendant did not receive effective assistance of counsel when he was sentenced as a predicate felony offender.  Counsel failed to challenge a 2000 conviction upon a guilty plea which was invalid because defendant was not apprised of the period of post release supervision (PRS) which was subsequently imposed. The fact that the PRS was later removed from the sentence did not cure the error because the defendant had already served four years of PRS and had spent time in jail for a violation of supervision:

In connection with the 2000 conviction, Supreme Court, New York County added postrelease supervision to the sentence in 2009 to cure an unlawful administrative imposition of PRS … . In May, 2010 that court removed PRS from the sentence in accordance with People v Williams (14 NY3d 198 [2010]). Contrary to the People’s sole argument on appeal addressing the Catu issue [the initial failure to advise defendant of the period of post release supervision], the vacatur of defendant’s PRS could not cure the Catu error, or give defendant the benefit of his plea, since at the time of the vacatur he had already served four years of PRS, and had also spent time in jail in violation of that supervision. …

In connection with the instant CPL 440.20 motion [motion to vacate the sentence], the attorney who represented defendant at his 2010 persistent violent felony offender adjudication and sentencing acknowledged that he had no strategic reason for failing to challenge the 2000 conviction, and that he never inquired into whether defendant had been advised about PRS at his 2000 plea proceeding. He further affirmed that had he been aware that the conviction was obtained in violation of Catu, he would have in fact challenged its use to enhance defendant’s sentence in this case. Thus, this was not a case where an attorney may have reasonably believed that it would have been futile to raise a Catu issue regarding the constitutionality, for predicate felony purposes, of defendant’s 2000 conviction, or that the law was unclear on this issue… .  People v Fagan, 2014 NY Slip Op 02344, 1st Dept 4-3-14

 

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Downward Departure Warranted in SORA Proceeding Where Victim’s Lack of Consent Was Solely By Virtue of Age

The Second Department, over a dissent, determined the fact that the victim’s lack of consent to sexual intercourse was due solely to the inability to consent by virtue of age warranted a downward departure in a SORA proceeding. The court noted that, although the victim became pregnant, there was no evidence the defendant intended to make the victim pregnant, and the defendant pays child support and visits the child often:

…[T]he SORA Guidelines provide that “[a] court may choose to downwardly depart from the risk assessment in an appropriate case and in those instances where (i) the victim’s lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points [for sexual contact with the victim, risk factor 2] results in an over-assessment of the offender’s risk to public safety'” … . The evidence in this case proves the existence of the facts supporting this ground for departure.It is true, as our dissenting colleague points out, that there was an 11-year difference in age between the defendant and the victim, and that the victim became pregnant as a result of the defendant’s crime. We share our colleague’s concern about these facts and about the significance of the age differential … . Nevertheless, the purposes of the SORA Guidelines are to assess the risk that a sex offender will reoffend and the offender’s threat to public safety (see Correction Law § 168-l[5]). There is no evidence here that the defendant committed his crime with the intention that the victim become pregnant, so the fact that a pregnancy did result is irrelevant to the SORA risk level determination. Moreover, the evidence at the hearing demonstrated that the defendant pays child support to the victim. While, as our dissenting colleague points out, payment of child support is a legal obligation, it was undisputed at the hearing that the defendant not only pays child support, but that he also regularly travels a significant distance to visit the child. People v Marsh, 2014 NY Slip Op 02274, 2nd Dept 4-2-14

 

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Brutality of Offense Warranted an Upward Departure in SORA Proceeding

The Second Department determined the brutality involved in the offense warranted an upward departure:

…[I]n light of the extreme brutality and violence of the defendant’s conduct in his commission of the underlying crimes, which included holding the victim hostage in her home over the course of approximately 13 hours, repeatedly threatening to stab her with a knife and burn her to death with gasoline, raping her twice, locking her in a closet, choking and punching her, and engaging in a standoff with the police, the County Court properly determined that there were aggravating factors not adequately taken into account by the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary … . Upon making such a determination, the County Court providently exercised its discretion in granting the People’s application for an upward departure from a level two to a level three sex offender … . People v Soevyn, 2014 NY Slip Op 02275, 2nd Dept 4-2-14

 

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Dismissal of Indictment On Ground that Law Enforcement Personnel Improperly Issued a Subpoena for Defendant’s Financial Records Reversed/Defendant Did Not Have Standing to Challenge the Subpoena and Issuance of the Subpoena Did Not Violate Defendant’s Constitutional Rights

The Second Department determined that the trial court should not have dismissed an indictment in the interest of justice on the ground that law enforcement personnel improperly issued a subpoena to Citibank for defendant’s financial records.  The court noted that defendant did not have standing to challenge the subpoena because he did not have a proprietary interest in the records:

Even assuming, arguendo, that the subpoena was improperly issued, the defendant had no standing to challenge the validity of the subpoena … as he had no possessory or proprietary interest in the bank’s records … . Further, any impropriety in the issuance of the subpoena did not implicate the defendant’s constitutional rights … or federal statutory rights … . Since any misconduct on the part of law enforcement in issuing the subpoena did not implicate the defendant’s rights or interests, justice did not require dismissal of the subject counts of the indictment on the basis of any such misconduct. Further, for the reasons noted above, suppression of the Citibank records was not proper either as a sanction for alleged misconduct or for an alleged violation of the defendant’s Fourth Amendment rights… . People v Adeniran, 2014 NY Slip Op 02302, 2nd Dept 4-2-14

 

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Failure to Prove Shared Intent (Accessorial Liability) Required Dismissal of Robbery Counts Under a Weight of the Evidence Analysis

The Second Department, after a weight of the evidence review, determined there was insufficient proof defendant shared the intent to commit the robbery and dismissed the relevant counts of the indictment:

Here, the defendant was convicted of two counts of attempted robbery in the second degree under a theory of accessorial liability. “To sustain a conviction based upon accessorial liability, the evidence . . . must prove beyond a reasonable doubt that the accused acted with the mental culpability necessary to commit the crime charged and that, in furtherance thereof, he solicited, requested, commanded, importuned or intentionally aided the principal to commit such crime'” (…see Penal Law § 20.00…).Upon the exercise of our factual review power (see CPL 470.15), we determine, in the first instance, that acquittal of the charges of attempted robbery in the second degree would not have been unreasonable based upon the evidence presented and, moreover, that the jury failed to accord the evidence the weight it should have been accorded … . The evidence presented at trial did not establish, beyond a reasonable doubt, that the defendant shared the intent to commit robbery, or that he solicited, requested, commanded, importuned, or intentionally aided the principal in committing the offense of attempted robbery in the second degree. Accordingly, the convictions of attempted robbery in the second degree and the sentences imposed thereon must be vacated, and those counts of the indictment must be dismissed … . People v Marchena, 2014 NY Slip Op 02312, 2nd Dept 4-2-14

 

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