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Conviction Under Accomplice Liability Theory Reversed After a Weight of the Evidence Analysis

The Second Department reversed defendant’s conviction for criminal sale of a controlled substance under an accomplice liability theory, finding the conviction against the weight of the evidence. The officer who purchased the drugs assumed, based on circumstantial evidence, the drugs were supplied to the seller by the defendant (who was in a vehicle with the seller and a woman) but did not actually see any transaction between the defendant and the seller:

Although the officer testified that, based upon his training and experience as an undercover officer who had made over 500 buys, he believed that the codefendant received drugs from the defendant inside the vehicle, he admitted that he did not observe an exchange of money or drugs between the codefendant and the defendant. People v Curry, 2013 NY Slip Op 08455, 2nd Dept 12-18-13

 

 

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Abstention from Alcohol While Incarcerated and Exemplary Prison Record Did Not Warrant Downward Departure Re: Sex Offender Status/Basics of Sex Offender Registration Act (SORA) Proceedings Explained In Some Depth

The First Department affirmed the sex offender status determined by Supreme Court, rejecting the arguments that an exemplary prison record and abstention from alcohol during a long incarceration warranted a downward departure.  The court took the trouble to explain some of the basics of a Sex Offender Registration Act (SORA) determination:

In assessing a sex offender’s danger to the community, and therefore, its recommendation to the court hearing a SORA application, the Board of Examiners of Sex Offenders (BOSE) must consider 15 statutory factors, applying them in accordance with the Risk Assessment Guidelines developed to assess an individual applicant’s risk of a repeat offense (Correction Law § 168—l[5]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006]). The evaluation is made using a Risk Assessment Instrument (RAI), identifying each factor which, if applicable, is assigned a numerical value. If a particular factor is not applicable, it is assessed at zero. The values are then tallied, resulting in a recommended risk assessment which is considered as presumptively correct at the SORA hearing before the court … .

One of the factors BOSE considers is “whether the sex offender’s conduct was found to be characterized by repetitive and compulsive behavior, associated with drugs or alcohol” … (Correction Law § 168-1[5][a][ii]). The guidelines clarify that if the individual has a history of drug or alcohol abuse “or was abusing drugs and or alcohol at the time of the offense,” 15 points will be assessed in that category (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15). Pursuant to the guidelines, BOSE or the court may choose to score zero points in this category, if the drug and/or alcohol abuse is “in the distant past, but [the defendant’s] more recent history is one of prolonged abstinence” … .

Since defendant admittedly committed his crime while intoxicated, this alone supports the 15 point assessment made against him in this category … . Thus the issue turns on whether his prolonged abstinence from alcohol use, while incarcerated, provides a basis for a 15 point reduction in this category. We find that it does not.

We have consistently held that even when alcohol use in the commission of the crime is remote in time, and the defendant has abstained from alcohol use for a prolonged period while incarcerated, such remoteness and abstinence are unreliable predictors of the risk for re-offense post-release, or to the threat posed by the sex offender to public safety … .   * * *

The SORA court also providently exercised its discretion in denying defendant’s application for a discretionary downward departure to a level 2 based upon claims that he had an exemplary record while incarcerated, has shown remorse for his crime, and is now a productive member of society * * *.

We emphasize that a SORA risk-level determination is not an extended form of punishment for the sex crime committed, but a collateral consequence of the conviction intended to protect the public at large from the possibility of future crime … . A departure from a sex offender’s presumptive risk level is generally warranted only where “there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4…)… .  People v Watson, 2013 NY Slip Op 08379, 1st Dept 12-17-13

 

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Police Officers Properly Allowed to Testify About Victim’s Identification of Defendant Shortly After the Crime/Prior Consistent Statements Not Hearsay

In a full-fledged opinion by Judge Smith, over a dissent, the Court of Appeals determined that two police officers, as well as the victim, were properly allowed to testify about the victim’s identification of the defendant shortly after the crime, extending the rule announced by the Court of Appeals in People v Huertas (75 NY2d 487):

Velez [the victim] identified defendant at trial as one of the robbers and also testified, without objection, to a description he had given the police on the night of the crime of a black man “about 5’6, short hair, round face, thick eyebrows” and wearing a white shirt.  The description fits defendant, but in the video the man alleged to be defendant is wearing a blueish-gray shirt.  Velez testified that, before he saw the video, he realized that his description of the shirt was in error, and corrected it.

Two police officers also testified, over objection, that Velez had given a description on the night of the crime. The officers’ accounts of the description were brief, and consistent with Velez’s.  One said that Velez had described a man “between 5’6 to 5’7 in height wearing shorts and . . . a white T-shirt.”  The other said only that Velez had described “a short black male, dark skinned.” * * *

Huertas involved a … prior consistent statement: a witness’s description, given shortly after the crime, of the person who committed it.  Huertas held testimony about a description to be admissible not under any exception to the hearsay rule, but because the testimony is not hearsay at all. It is admitted not for the truth or accuracy of the prior description, but as “evidence that assists the jury in evaluating the witness’s opportunity to observe at the time of the crime, and the reliability of her memory at the time of the corporeal identification” (Huertas, 75 NY2d at 493).  * * *

The issue here is whether the rule of Huertas, like CPL 60.30’s hearsay exception for prior eyewitness identifications, is limited to a witness’s account of his or her own previous statement.  We see nothing to justify such a limitation.  A statement that is not hearsay when the declarant testifies to it does not become hearsay when someone else does so. People v Smith, 226, CtApp 12-17-13

 

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Defense Counsel Should Have Been Allowed to Refresh Witness’s Recollection With a Prior Statement/Conviction Reversed

In a full-fledged opinion by Judge Smith, the Court of Appeals reversed defendant’s conviction because the trial judge refused to permit defense counsel to refresh a witness’s recollection with the witness’s prior statement.  Defendant had the victim in a headlock during a fight. The victim subsequently died.  A central issue at trial was how long defendant held the victim in a headlock.  One witness (Flynn) gave a statement indicating the headlock lasted 6 to 10 seconds.  The People did not call her.  The defense called her and she testified the headlock could have lasted “a minute or so.”  Defense counsel then attempted to refresh her recollection with her prior statement.  The trial court didn’t allow it, saying the witness had “given no indication she needs her memory refreshed:”

When a witness, describing an incident more than a year in the past, says that it “could have” lasted “a minute or so,” and adds “I don’t know,” the inference that her recollection could benefit from being refreshed is a compelling one.  More fundamentally, it was simply unfair to let the jury hear the “a minute or so” testimony -testimony damaging to the defense, from a defense witness’s own lips — while allowing the defense to make no use at all of an earlier, much more favorable, answer to the same question.  The trial court suggested to defense counsel that this was “an effort to impeach your own witness,” but counsel had not yet got to the point of impeachment; she only wanted to refresh the witness’s recollection.  And in any event, technical limitations on the impeachment of witnesses must sometimes give way, in a criminal case, to a defendant’s right to a fair trial (Chambers v Mississippi, 410 US 284 [1973]). People v Oddone, 236, CtApp 12-12-13

 

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Penal Law 70.85, Which Allows Resentencing without a Period of Post-Release Supervision to Remedy a Defective Sentence, Is Constitutional

In a full-fledged opinion by Judge Rivera, the Court of Appeals determined Penal Law 70.85 is constitutional.  Section 70.85 allows the resentencing of a defendant who was not informed about post-release supervision to a sentence that does not include post-release supervision.  The statute was enacted to provide a remedy, other than vacation of the guilty plea, when a plea was entered in the absence of an explanation of the post-release supervision part of the sentence:

By now it is well established that the State Constitution requires a trial court to ensure that a defendant has a “full understanding of what the plea connotes and its consequences” … .  A guilty plea made without notification from the court about the direct consequence of a PRS term violates the Constitution because it could not have been “a voluntary and intelligent choice among the alternative courses of action”… . * * *

Mindful of the constitutional rights at issue…, we find that section 70.85 is a constitutionally permissible legislative remedy for the defectiveness of the plea.  Defendant’s plea was knowing and voluntary because the Legislature has changed the sentencing laws governing pleas vulnerable to …challenge.  Section 70.85 ensures that defendant, who is no longer subject to PRS, pleaded guilty with the requisite awareness of the direct consequences of his plea.  People v Pignataro, 213, CtApp 12-12-13

 

Resentencing to a Sentence Technically Different from the Sentence Agreed to in a Plea Bargain Okay—Resentence Comported With Defendant’s Reasonable Expectations

In a full-fledged opinion by Judge Read, over a dissent, the Court of Appeals determined the defendant was properly resentenced even though the sentence imposed was technically different from the sentence agreed to in the plea bargain.  The defendant had agreed to a sentence of 25 years and five years for the two crimes, with the sentencing court retaining the option to sentence consecutively, which it did.  It turned out that the five-year sentence was illegal (it had to be a minimum of ten). The defendant was resentenced to the two crimes, but this time concurrently.  Effectively, therefore, the defendant’s original sentence was 30 years, but he was resentenced to 25:

“[A] guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” … .  “The choice rests in the discretion of the sentencing court” and “there is no indicated preference for one course over the other” … .

The sentencing court may have good reason to reject a defendant’s request to withdraw his plea.  Where, as here, years have gone by since the original plea, it may be difficult for the People to locate witnesses, obtain their renewed cooperation and proceed to trial on the “then stale indictment[]” … .  Under these circumstances, allowing a defendant to withdraw his plea would give him “more than he was entitled” to under the bargain he struck … .  Thus, the People “can hold a defendant to an agreed sentence rather than allow vacation of the plea when it would otherwise be prejudiced” … .

Moreover, specific performance of a plea bargain does not foreclose “technical divergence from the precise terms of the plea agreement” so long as the defendant’s reasonable expectations are met … .  * * *

Thus, if the originally promised sentence cannot be imposed in strict compliance with the plea agreement, the sentencing court may impose another lawful sentence that comports with the defendant’s legitimate expectations.  Again, “the reasonable understanding and expectations of the parties, rather than technical distinctions in semantics, control the question of whether a particular sentence imposed violates a plea agreement”… .  People v Collier, 228, CtApp 12-12-13

 

 

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No Preservation Required to Review Validity of Guilty Plea and Immediate Sentencing In Absence of the Waiver of the Rights to a Jury Trial, to Confront Witnesses and to Avoid Self-Incrimination

In a full-fledged opinion by Judge Graffeo, the Court of Appeals reversed two convictions because the defendant entered a guilty plea and was immediately sentenced without any discussion of the “Boykin” rights waived by the plea (trial by jury, confront accusers, avoid self-incrimination). The court determined that, under the facts, it was not possible or practical to preserve the error by motion:

…[I]n Lopez we carved out a narrow exception to the preservation requirement for the “rare case” in which “the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea” (Lopez, 71 NY2d at 666).  We also recognized a limited exception in Louree, concluding that a defendant can raise a …claim on direct appeal because of “the actual or practical unavailability of either a motion to withdraw the plea” or a “motion to vacate the judgment of conviction” (Louree, 8 NY3d at 546; …).

Here, whether we characterize these cases as falling within the Lopez/Louree exception or treat defendant’s claims as implicating rights of a constitutional dimension directed to the heart of the proceedings — i.e., a mode of proceedings error for which preservation is not required — defendant’s Boykin claims are reviewable on direct appeal. People v Tyrell, 230, 231, CtApp 12-12-13

 

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Hearing Required to Determine If Criminal Investigation of Defense Counsel Affected the Conduct of the Defense (Re: CPL 440.10 Motion to Vacate the Conviction)

The Court of Appeals determined defendant was entitled to a hearing on his motion to vacate his conviction.  Defendant’s attorney was the subject of a criminal investigation by the district attorney’s office during defendant’s trial.  The investigation of the attorney was not related to the charges against the defendant.  Therefore an automatic reversal was not required.  A hearing was necessary to determine if the conduct of the defense was affected by a conflict of interest (the district attorney’s investigation of defendant’s lawyer):

We reject defendant’s request to require automatic reversal anytime the defense attorney is under investigation or being prosecuted by the same district attorney’s office that is trying his client.  Indeed, in People v Konstantinides (14 NY3d 1, 13 [2009]), we declined to adopt such a per se rule in a case where a defense attorney was accused of criminal misconduct (witness tampering, bribery and suborning perjury) in relation to a witness in his client’s case.  An actual conflict would exist where a defense attorney was implicated in the crimes for which his client stood trial, but that was not the situation in Konstantinides and is certainly not the case here.  Accordingly, to obtain relief, defendant must demonstrate at a hearing on his 440.10 application that “the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation” … .  People v Payton, 232, CtApp 12-12-13

 

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Defendant Understood the Reference to the “Appellate Division” Was a Reference to a Higher Court—Waiver of Appeal Was Therefore Valid

The Second Department, over a dissent, determined that the defendant’s waiver of appeal was knowingly, voluntarily and intelligently made.  The defendant was asked by the prosecutor if he understood he was waiving the right to appeal his conviction and sentence to “the Appellate Division, Second Department.”  Because the defendant was 27 years old, had prior contact with the criminal justice system, had filed a notice of appeal pro se, and had requested appellate counsel, the court concluded the defendant understood the reference to the “appellate division” was a reference to a higher court. People v Sanders, 2013 NY Slip Op 08276, 2nd Dept 12-11-13

 

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Witness’s Hearsay Statement Should Have Been Admitted as a Statement Against Penal Interest/No Need for Declarant to Be Aware of Specific Violation of Law

In a full-fledged opinion by Justice Acosta, over a dissent, the First Department determined a (hearsay) statement by a witness indicating she (not the defendant) was driving when the property-damage accident occurred should have been admitted as a statement against penal interest.  The central question was whether the declarant was aware she was admitting to a violation of law when the statement was made:

The decision whether to admit a declaration against penal interest as an exception to the hearsay rule requires, among other factors, that the declarant be aware at the time of its making that the statement was contrary to his or her penal interest. The issue in this case is whether a statement in which an individual admits to conduct constituting an offense is a statement against penal interest, where the individual believes that the conduct may be illegal but does not know whether it is or not. It arose in the context of a DWI case where the defense was that defendant, who was intoxicated, was not the driver of the car, but a passenger. Specifically, the driver, a 19-year-old woman with no prior criminal history and only a learner’s permit, who met defendant approximately eight hours earlier, made a statement to a defense investigator indicating that she, and not defendant, was driving defendant’s car at the time it collided with a parked car, but refused to testify at trial on Fifth Amendment grounds. We find that the statement was a declaration against penal interest notwithstanding that some of the witness’s apprehension in making the statement was based on her fear that her parents would learn of her involvement with defendant or that, as the court noted, her exposure to criminal liability was relatively minor. The court therefore erred in keeping the statement out. * * *

…[W]e hold that regardless of whether [the witness] was specifically aware that the conduct she admitted constituted a violation of Vehicle and Traffic Law § 600, which prohibits an operator of a motor vehicle who causes property damage from leaving the scene, or whether she was specifically aware that she faced a penalty of up to 15 days’ imprisonment and a fine for that offense, the evidence established that her statement satisfied this hearsay exception. Her expressions, at the time of or immediately after her statement, of apprehension that she could get in trouble for her conduct, including repeated inquiries about consulting with a lawyer, sufficed to satisfy the requirement that “the declarant must be aware at the time of its making that the statement was contrary to his [or her] penal interest”… . People v Soto, 2013 NY Slip Op 08217, 1st Dept 12-10-13

 

 

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