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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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No Probable Cause for Disorderly Conduct Arrest/Defendant Was Standing in Front of a Store with Three Others All of Whom Refused Police Officer’s Request to Move

The Court of Appeals determined the presence of three reputed gang members in front of a store, one of whom was partially blocking the door, was not enough to support a disorderly conduct charge.  Evidence seized as a result of arrest should therefore have been suppressed:

The applicable statute is Penal Law § 240.20 (6), which says:”A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:. . . .”6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse;”

We have made clear that evidence of actual or threatened public harm (“inconvenience, annoyance or alarm”) is a necessary element of a valid disorderly conduct charge … . Here, the evidence was insufficient to provide the arresting officer with probable cause to believe that defendant either intended to cause public inconvenience, annoyance or alarm or was reckless in creating a risk of those consequences. According to the officer’s testimony at the suppression hearing, defendant stood with three other young men, reputed to be gang members, on a street corner, and the four refused to move when asked to do so by the police. The only evidence of any possible impact on the public resulting from their presence was the officer’s testimony that one of defendant’s companions “was partially blocking” the entrance to a store by standing in front of it.  Defendant and the other two men were close to the door, but not in front of it. There is no evidence that anyone trying to enter or leave the store was actually obstructed. This was not sufficient to satisfy the public harm element of the statute.  People v Johnson, 2014 NY Slip Op 02217, CtApp 4-1-14

 

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Jury Should Have Been Instructed that It Could Determine Whether Witness Was an Accomplice and Assess the Witness’ Credibility Accordingly/Propriety of Jury Instruction Is Reviewable by the Court of Appeals as a Matter of Law

In a full-fledged opinion by Judge Rivera, over a dissent, the Court of Appeals determined the trial court committed reversible error by refusing defendant’s request for an “accomplice-in-fact” jury instruction.  The defendant’s conviction for manslaughter for participation in a beating death involving several assailants was based in large part upon the testimony of an eyewitness.  The Court of Appeals found that there was enough evidence of the eyewitness’ participation in the crime to warrant an instruction which would allow the jury to determine if the eyewitness was an accomplice and to assess the eyewitness’ credibility accordingly.  The Court explained the “accomplice as a matter of law” and “accomplice-in-fact” theories:

An accomplice is “a witness in a criminal action who, according to the evidence adduced in such action, may reasonably be considered to have participated in: (a) [t]he offense charged; or (b) [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged” (CPL 60.22 [2]). Under our criminal law, “[a] defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense” (CPL 60.22 [1]). Testimony of such a witness, marked by obvious self interest, carries the potential for falsification to avoid prosecution … . * * *

Where the court determines on the evidence that a witness comes within the meaning of CPL 60.22 (2), the witness is an accomplice as a matter of law, and the court must instruct the jury that the witness is an accomplice and subject to the statutory corroboration requirement … . * * * In a case where the court concludes that a factual dispute exists as to whether the witness is an accomplice under the statute, the factual question is left for the jury to resolve… . * * *

We have found a witness is an accomplice as a matter of law where, for example, the witness pleads guilty to aiding the defendant in the commission of the crime …, or otherwise confirms participation or assisting in the charged crime … .

In contrast, the witness may be found to be an accomplice in fact where there are factual disputes as to the witness’s participation or intent, such that “different inferences may reasonably be drawn” from the evidence as to the witness’s role as an accomplice … .  * * *  The propriety of a jury instruction is reviewable as a matter of law… .  People v Sage, 2014 NY Slip Op 02214, CtApp 4-1-14

 

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Defendant’s Flight in His Vehicle, Nearly Striking an Officer, Severed Any Connection with the Initial Detention and Evidence Discarded from the Vehicle Was Properly Seized

The Fourth Department determined an anonymous tip coupled with the police officer’s observations justified the officer’s request that defendant get out of his vehicle—a level three encounter.  Defendant’s subsequent flight in the vehicle, nearly striking an officer, severed any connection between the initial detention and the seizure of evidence discarded from the vehicle:

A police officer testified at the suppression hearing that he received an anonymous tip regarding drug activity taking place at a certain location. Upon proceeding to the location, the officer found defendant sitting in a parked vehicle, which was similar to the description of the vehicle given by the anonymous caller. As the officer spoke with defendant, he noticed what appeared to be a pile of cigar tobacco on the ground outside the vehicle, and the officer knew, based on his training and experience, that emptying a cigar was a common method of preparing a marihuana cigar, or a “blunt.” When the officer asked defendant to step out of the vehicle, defendant instead started the vehicle and sped off, almost striking another officer who was approaching the vehicle on foot. During the ensuing chase, defendant discarded a bag out of the passenger-side window. The bag was later recovered by the police and was found to contain a loaded weapon and marihuana.

The officer’s initial approach of defendant and request for identification was a permissible level one encounter under People v De Bour … . Although the officer’s request that defendant exit the parked vehicle elevated the situation to a level three encounter under De Bour …, we conclude that the officer had reasonable suspicion that defendant was engaged in illegal activity based on the anonymous tip and the officer’s observation of drug activity, i.e., the pile of cigar tobacco on the ground … . In any event, even assuming, arguendo, that defendant was unlawfully detained, we conclude that his criminal conduct in speeding off and almost striking the second officer—conduct for which defendant was convicted of reckless endangerment in the second degree—“severed any causal connection between the unlawful detention and the subsequently-acquired evidence” … . People v Wofford, 252, 4th Dept 3-28-14

 

Sentencing Court Must Make Finding Whether Eligible Youth Should Be Afforded Youthful Offender Status

The Fourth Department sent the case back for a determination whether defendant should be afforded youthful offender status, a finding which must be made for every eligible youth:

Defendant, an eligible youth, pleaded guilty pursuant to a plea bargain that included a promised sentence and a waiver of the right to appeal. There was no mention during the plea proceedings whether he would be afforded youthful offender treatment.

“Upon conviction of an eligible youth, the court must order a [presentence] investigation of the defendant. After receipt of a written report of the investigation and at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender” (CPL 720.20 [1]). A sentencing court must determine whether to grant youthful offender status to every defendant who is eligible for it because, inter alia, “[t]he judgment of a court as to which young people have a real likelihood of turning their lives around is just too valuable, both to the offender and to the community, to be sacrificed in plea bargaining” … . People v Scott, 293, 4th Dept 3-28-14

 

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Court Review of Sufficiency of Evidence Before a Grand Jury Explained

The Fourth Department determined the circumstantial evidence of constructive possession of a package containing drugs was legally sufficient to support the indictment.  The court explained how the sufficiency of evidence before a grand jury is analyzed:

On a motion to dismiss the indictment pursuant to CPL 210.20 (1) (b), “the inquiry of the reviewing court is limited to the legal sufficiency of the evidence; the court may not examine the adequacy of the proof to establish reasonable cause” … . The “reviewing court must consider ‘whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury’ ” … . In the context of grand jury proceedings, “legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt” … . Thus, we must determine “ ‘whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes,’ and whether ‘the [g]rand [j]ury could rationally have drawn the guilty inference’ ” … .  People v Forsythe, 359, 4th Dept 3-28-14

 

Response to Jury Note Without Notice to Defendant Required Reversal and a New Trial

Over a dissent, the Fourth Department determined the trial court committed a mode of proceedings error by responding to a jury request for exhibits without notice to the defendant:

CPL 310.20 (1) provides that, upon retiring to deliberate, the jurors may take with them “[a]ny exhibits received in evidence at the trial which the court, after according the parties an opportunity to be heard upon the matter, in its discretion permits them to take” (emphasis added). CPL 310.30 provides that, “[a]t any time during its deliberation, the jury may request the court for further instruction or information with respect to . . . the content or substance of any trial evidence . . . Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper” (emphasis added). Here, as part of its instructions to the jury, the court informed the jurors that “[e]xhibits that were received in evidence are available, upon your request, for your inspection and consideration.” The court, however, neither elicited on the record whether defendant, who proceeded pro se at trial, waived his right to be present when such a request was made nor informed defendant on the record that the exhibits would be given to the jury without reconvening. Prior to receiving the jury’s verdict, the court indicated that it had received a jury note “that has been marked as a Court Exhibit which was just the jury requesting certain items of evidence that had already been admitted and received in evidence, that they were provided with those items pursuant to discussions we had and what they were told before deliberations.” We note that those “discussions” do not appear to have been transcribed, and no agreement by defendant to forego the right to be present for the receipt of jury notes appears in the record before us. Inasmuch as the court failed to obtain defendant’s express agreement waiving his right to be present for the reading of the jury note at issue, we conclude that the court committed a mode of proceedings error when it provided exhibits to the jury in response to a jury note without notice to defendant, thereby requiring reversal of the judgment and a new trial … . People v Roberites, 164.1, 4th Dept 3-28-14

 

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Error to Allow Prosecutor to Elicit Testimony that Defendant Invoked His Right to Counsel

Although the error was deemed harmless, the Fourth Department noted that the prosecutor should not have been allowed to elicit testimony that defendant invoked his right to counsel:

We agree with defendant that County Court erred in allowing the People to elicit testimony that defendant invoked his right to counsel …, but we conclude that reversal is not required; the error is harmless beyond a reasonable doubt “inasmuch as there is no reasonable possibility that the error[] might have contributed to defendant’s conviction” … .  People v Daniels, 360, 4th Dept 3-28-14

 

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