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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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“Evidentiary Fact” Resolved In Favor of Defendant by a Jury In the First Trial May Not Be Contradicted by Evidence Presented in the Second Trial

In a full-fledged opinion by Judge Smith, over a dissent, the Court of Appeals determined the doctrine of collateral estoppel prohibited the introduction of evidence a firearm was displayed in the course of a robbery.  In the first trial, the defendant was acquitted of First Degree Robbery (which requires display of a firearm) and convicted of Second Degree Robbery (display of a weapon is not an element of Second Degree Robbery). The conviction was reversed on appeal.  In the second trial (for Second Degree Robbery only), the People presented evidence a weapon was displayed.  The court found the People were collaterally estopped from presenting evidence of the display of a weapon in the second trial:

This case is controlled by our holding in People v Acevedo (69 NY2d 478, 480 [1987]) that “the doctrine of collateral estoppel can be applied to issues of ‘evidentiary’ fact.”  As we explained in Acevedo, in the analysis of collateral estoppel issues, facts essential to the second judgment are considered “ultimate” facts; other facts are only “evidentiary” (id. at 480 n 1).  Under Acevedo, when an issue of evidentiary fact has been resolved in a defendant’s favor by a jury, the People may not, at a later trial, present evidence that contradicts the first jury’s finding.  People v O’Toole, 233, CtApp 12-10-13

 

Possession of a Controlled Substance May Be Proved Circumstantially/Permissible Inference that Possessors Know What They Possess

The Court of Appeals determined the accusatory instrument charging attempted criminal possession of a controlled substance was sufficient.  The police officer observed defendant drop a glass pipe which contained cocaine “residue.” The court noted that “possession of a controlled substance ‘may be proven circumstantially,’ and ‘possession suffices to permit the inference that possessors know what they possess.’ ”  People v Jennings, 256, CtApp 12-10-13

 

 

“Strangulation” Conviction Affirmed

In a full-fledged opinion by Justice Garry, the Third Department affirmed defendant’s conviction for strangulation in the second degree (as well as assault in the third degree).  The victim of domestic abuse alleged the defendant choked her with one hand and shoved a piece of pizza in her face with the other.  The court explained the statutory strangulation offenses as follows:

In 2010, the Legislature enacted several criminal statutes to address choking, strangling, and other forms of intentional interference with a victim’s breathing or circulation (see Penal Law art 121; William C. Donnino, Practice Commentaries McKinney’s Cons Laws of NY, Book 39, Penal Law § 121.11, 2013 Pocket Part at 38).  At the time of enactment, the Legislature stated that domestic abusers use strangulation as “a form of power and control [that] has a devastating psychological effect on victims and a potentially fatal outcome” (Senate Mem in Support, Bill Jacket, L 2010, ch 405, 2010 McKinney’s Session Laws of NY at 1977) and noted that strangulation can be challenging to prosecute as it may not cause obvious injuries, thus allowing the crime to go unpunished (see Assembly Mem in Support, Bill Jacket, L 2010, ch 405).  In the statutory scheme, the severity of the offense is measured by the degree of the consequent harm.  A person commits the misdemeanor of criminal obstruction of breathing or blood circulation when, “with intent to impede the normal breathing or circulation of the blood of another person, he or she a. applies pressure on the throat or neck of such person; or b. blocks the nose or mouth of such person,” with no resulting injury (Penal Law § 121.11).  Such acts resulting in “stupor, loss of consciousness for any period of time, or any other physical injury or impairment” constitute the felony of strangulation in the second degree (Penal Law § 121.12); strangulation in the first degree involves “serious physical injury” (Penal Law § 121.13).  People v Carte, 105808, 3rd Dept 12-5-13

 

One Party’s Video-Recording of Consensual Sexual Activity Without the Other Party’s Knowledge and Consent Violates the Unlawful Surveillance Statute

In a full-fledged opinion by Justice Stein, the Third Department affirmed defendant’s conviction for violating New York’s Unlawful Surveillance statute (Penal Law 250.45).  This “first impression” case involved the defendant’s recording of his sexual activities with two women without the women’s knowledge or consent. The statute was found to apply to the video recording of consensual sexual activity by one of the parties involved in that activity.  Defendant was sentenced to a term in prison.  The relevant portions of the statute at issue provide:

“A person is guilty of unlawful surveillance in the second degree when:

1.         For his or her own, or another person’s amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs . . . an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent; or

2.         For his or her own, or another person’s sexual arousal or sexual gratification, he or she intentionally uses or installs . . . an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent; or

3.         (a) For no legitimate purpose, he or she intentionally uses or installs . . . an imaging device to surreptitiously view, broadcast or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a motel, hotel or inn, without such person’s knowledge or consent” (Penal Law § 250.45 [1], [2], [3] [a]).  People v Puznarksi, 105460, 3rd Dept 12-5-13

 

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