You are here: / Criminal Law

Presumption in Favor of Resentencing (re: the New Scheme for Drug Offenses) Not Rebutted—Supreme Court Should Not Have Denied Motion for Resentencing

The Second Department determined the factors relied upon by the resentencing court were not sufficient to overcome the presumption in favor of resentencing under Criminal Procedure Law 440.46:

The Supreme Court improvidently exercised its discretion in denying the defendant’s motion to be resentenced pursuant to CPL 440.46. Although resentencing is not mandatory, there is a statutory presumption in favor of resentencing (see L 2004, ch 738, § 23; CPL 440.46[3]…). Under the circumstances of this case, the factors relied upon by the Supreme Court in denying the motion–the defendant’s criminal history, disciplinary infractions, and parole violations–are insufficient to overcome the statutory presumption. The defendant served more than 14 years in prison for a low-level drug crime committed when he was 19 years old. The defendant’s criminal history included only larcenous and low-level drug crimes, all committed before he was 20 years old. While the defendant violated his parole by failing to abide by certain parole rules, including, inter alia, by breaking curfew and by traveling to Georgia to be reunited with his family, he has never committed another crime or had a positive drug test. Under all of the circumstances presented here, “the presumption that the defendant is entitled to benefit from the reforms enacted by the Legislature based upon its judgment that the prior sentencing scheme for drug offenses like that committed by the defendant was excessively harsh, has not been rebutted”… . People v Simmons, 2013 NY Slip Op 08103, 2nd Dept 12-4-13

 

,

Evidence Relevant to a Reason to Fabricate is Never Collateral

The Third Department noted that the trial court erred (harmless) when it prohibited defendant from questioning witnesses against him (Corsi and Beebe) about grievances and a lawsuit defendant had filed.  Evidence of a witness’ reason to fabricate should not have been excluded as collateral:

…County Court improperly denied his motion requesting permission to question Corsi and Beebe about prior notices of discipline, grievances filed by defendant and defendant’s pending federal lawsuit … .  The court concluded that the issues were collateral and would be precluded unless the door were opened by a witness’s testimony reflecting bias or hostility toward defendant.  While “trial courts have broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters,” “extrinsic proof tending to establish a reason to fabricate is never collateral and may not be excluded on that ground”… .  People v Hughes, 105838, 3rd Dept 11-27-13

 

County Court Should Have Ordered a Hearing Re: Defendant’s 440 Motion to Vacate His Conviction—There Was Evidence Outside the Record that Required Development—Defendant Suffered from a Mental Illness and Was Taking Medications which May Have Affected His Judgment at the Time of the Plea Proceedings

The Third Department determined County Court erred when it did not order a hearing to determine defendant’s CPL 440.10 motion to vacate his conviction (by guilty plea).  The motion, as well as other evidence in the record (i.e., the presentence report), indicated defendant suffered from a mental illness and was taking medications that may have clouded his judgment when the guilty plea was entered:

Defendant presented further evidence of his mental illness and use of psychotropic medications upon his CPL 440.10 motion. In his own affidavit, defendant recounted experiencing extreme anxiety leading to his hospitalization, and stated that the medications he was taking made him feel intoxicated and in a haze during the plea and sentencing proceedings.  He also submitted the affidavit of a forensic nurse consultant, who indicated that the side effects of the medications that defendant was taking included drowsiness, dizziness, fatigue and abnormal thinking, and noted that Zoloft was not recommended for individuals with bipolar disorder.  The nurse opined that the combination and quantity of medications that defendant was taking at the time of his plea and sentencing “most certainly” would have affected his cognitive ability to understand the proceedings.

Although postjudgment motions may often be determined upon the record and submissions, a hearing is required where facts outside the record are material and would entitle a defendant to relief (see CPL 440.30 [5]…). Here, the proof reveals that defendant suffers from a mental illness and was taking psychotropic medications, and further development of the record is required to determine the extent to which his mental capacity was impaired and whether this rendered him unable to enter a knowing, voluntary and intelligent guilty plea.  A hearing on defendant’s CPL 440.10 motion is the appropriate vehicle for collecting further evidence on this issue and determining whether defendant’s guilty plea should be vacated as a result … .  Accordingly, we find that County Court erred in denying defendant’s CPL 440.10 motion without a hearing, and conclude that this matter must be remitted to County Court for this purpose. People v Hennessey, 105342, 3rd Dept  11-27-13

 

,

The Prosecutor’s Summation Was Filled With Impermissible Statements and Suggestions, Requiring Reversal of Defendant’s Conviction

The Third Department reversed defendant’s conviction because of the prosecutor’s impermissible statements in summation. The prosecutor vouched for his witnesses, suggested that in order to believe the defendant the jury would have to believe there was a conspiracy to convict him, involving the trial judge, and effectively shifted the burden of proof to the defendant:

During the course of his summation, the prosecutor, among other things, repeatedly vouched for the credibility of the People’s witnesses (“He’s telling the truth”).  Such comments clearly are impermissible … .  We reach a similar conclusion regarding the prosecutor’s statement that if the jury was inclined to believe defendant, he had “a bridge in Brooklyn [to] sell” as well … .  These errors were compounded by the prosecutor’s completely speculative comment that “the only reason that [defendant] wasn’t involved in the other robbery that [Young] and [Ervin] committed” not long after the attack upon the victim “was because he couldn’t be there with them” – suggesting that had defendant not been in custody at the time that the subsequent robbery was committed, he would have participated in that crime as well.  Although the prosecutor’s comment in this regard undeniably was improper …, it paled in comparison to his statement that, in order to believe defendant’s version of events, the jury had to accept that there was a far-reaching conspiracy to convict defendant — one that included the trial judge.  Specifically, the prosecutor stated, “[H]ere’s what you’ll have to find to find that the defendant is not guilty.  This is what you have to believe.  You have to believe there was a conspiracy against [defendant,] that every single one of the witnesses that came in here went over there, put their hand on the Bible, swore to tell the truth, and then lied and made up a story, and that the detectives from the Albany Police Department . . . got together and risked their entire careers and got together with . . . Ervin and . . . Young to frame [defendant].  Then they got me involved to continue prosecuting the case, and then they got Judge Herrick and Judge Breslin to go along with these cooperation agreements and allowed them to come in here and lie.”

The problem with the foregoing statement is three-fold. First, the comment made by the prosecutor relative to what the jury would need to believe in order to find that defendant was not guilty arguably shifted the burden of proof from the People to defendant.  Additionally, the prosecutor’s reference to a conspiracy in no way constitutes fair comment upon the evidence adduced.  Although defendant indeed testified that Young and Ervin were not being truthful, he never suggested that the People’s witnesses, among others, were engaged in a conspiracy to wrongfully convict him, and there is nothing in the record to support such a claim.  Finally, there is no question that one of the jury’s key roles in a criminal trial is to assess the credibility of the witnesses who testify on behalf of the People and, in those instances where the defendant takes the stand or otherwise presents witnesses in support of his or her defense, to weigh the credibility of the People’s witnesses vis-a-vis the defendant’s witnesses.  Such a “credibility contest” is entirely permissible, and there is nothing inherently prejudicial about that evaluative process.  Here, however, the prosecutor’s commentary set up a far different credibility contest by suggesting to the jury that it could believe defendant only if it also believed that the trial judge, among others, had permitted the People’s witnesses to lie to the jury and/or otherwise engaged in some form of misconduct.  Simply put, the prosecutor’s conduct in pitting defendant against the very judge who had presided over the course of the trial was inexcusable and, despite defense counsel’s prompt objection and County Court’s appropriate curative instruction, the prejudicial impact of that conduct cannot be ignored. People v Forbes, 104771, 3rd Dept 11-27-13

PROSECUTORIAL MISCONDUCT

 

 

Defendant Should Have Been Advised of His Right to Be Heard in Resentencing Proceeding Pursuant to CPL 440.46

The Second Department determined the failure to inform defendant of his right to be heard in a resentencing proceeding pursuant to CPL 440.46 required a remittance:

The statutory procedures governing the determination of a motion for resentencing pursuant to CPL 440.46 provide, in pertinent part, that “[t]he court shall offer an opportunity for a hearing and bring the applicant before it” (L 2004, ch 738, § 23; see CPL 440.46[3]…). The defendant’s presence is not required for the court’s threshold determination of the purely legal issue of whether the defendant meets the statutory eligibility requirements for relief pursuant to CPL 440.46 …, but the defendant is entitled to appear before the court and to be given an opportunity to be heard with respect to the merits of the resentencing motion … .

Here, the defendant was not brought before the Supreme Court prior to the court’s determination that, although he met the statutory eligibility requirements, substantial justice dictated that his motion for resentencing should be denied. There is nothing in the record to indicate that the defendant was ever advised of his statutory right to be brought before the court, or that he knowingly, intentionally, and voluntarily chose to relinquish that right … .The Supreme Court therefore failed to comply with the statutory mandate… .  People v Duke, 2013 NY Slip Op 07983, 2nd Dept 11-27-13

 

, ,

Double Hearsay in Presentence Report Did Not Render the Information Unreliable Re: a SORA Sex Offender Proceeding

The Second Department determined that the presence of double hearsay in a presentence report did not render the information unreliable such that it could not be considered in a SORA proceeding to determine the level of a sex offender:

“In assessing points, evidence may be derived from the defendant’s admissions, the victim’s statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders . . . or any other reliable source, including reliable hearsay” … . Here, as the People correctly point out, the presentence report prepared by the Department of Probation, the felony complaint sworn to and signed by the arresting officer, and the arrest report constituted “reliable hearsay” (Correction Law § 168-n[3]) and provided clear and convincing evidence that the defendant was armed with a dangerous instrument during the commission of the rape … . Contrary to the defendant’s contention, the fact that certain statements contained in these documents constituted “double hearsay” did not necessarily render them unreliable for purposes of a SORA hearing … . Moreover, even though certain proof may not have been admissible at the criminal trial, the Legislature did not limit the types of materials admissible in a SORA proceeding to what would be admissible at a civil or criminal trial… . People v Dash, 2013 NY Slip Op 07948, 2nd Dept 11-27-13

 

, ,

Count (on which Jury Could Not Reach a Verdict) Dismissed Before “Entry of Sentence” on the Remaining Count Can Be Reprosecuted after Appeal

The First Department determined the defendant could be retried on an attempted rape charge which was dismissed upon a motion by the prosecution after the jury was unable to reach a verdict on that count.  The defendant was convicted of the assault count.  The assault conviction was reversed on appeal and a new trial was ordered. The question before the court was whether, upon re-trial, the dismissed attempted rape count could be re-tried as well:

Upon remand, Supreme Court properly determined that the People were permitted to reprosecute the attempted rape charge, because that count of the indictment was deemed reinstated pursuant to CPL 470.55(1). Although the statute provides that a count is not deemed reinstated if it was dismissed on a “post-judgment order” (CPL 470.55[1][b]), the dismissal of the attempted rape charge occurred between the oral imposition of sentence and the entry of judgment … . There is nothing in the record to indicate that, before dismissing the count at issue, the court had done anything that could be construed as entry of a judgment. Since a judgment “is comprised of a conviction and the sentence imposed thereon and is completed by imposition and entry of the sentence” (CPL 1.20 [15][emphasis added]), “post-judgment” can only mean after entry.

Double jeopardy concerns did not bar retrying defendant on the attempted rape count. The first jury never returned any verdict on that count. Furthermore, defendant had no legitimate expectation that the dismissal of that count was final and irrevocable As noted, the statute provides that a reversal granting a new trial would automatically reinstate any counts dismissed under the circumstances presented here. Moreover, the record establishes that when the People moved to dismiss, they were engaging in the common practice of dismissing a charge as sufficiently covered by a conviction on another charge, an exercise of prosecutorial discretion that was frustrated by the reversal of the conviction. Defendant had no legitimate expectation that in the event of a reversal he would receive the windfall of having the dismissed charge stay dismissed.  People v Thomas, 2013 NY Slip Op 07833, 1st Dept 11-26-13

 

Defendant’s Placement of a Bag in the Engine Compartment Deemed Inconsistent with An Innocent Explanation

The First Department determined the observations made by the officer, including the placement of a bag under the hood of the car, provided reasonable suspicion of criminal activity (justifying the stop):

At a drug-prone intersection, experienced narcotics officers saw an illegally parked car, in which defendant and his passenger were making movements suggesting that something was being transferred. They then saw defendant close a clear plastic bag with his mouth, get out of the car while holding the bag, open the hood of the car, reach into the engine area and return to the car without the bag. Based on those observations, the police had reasonable suspicion that defendant had engaged in criminal activity, most likely a drug transaction … . In particular, it was highly suspicious for defendant to apparently secrete a bag under the hood of the car. This behavior was inconsistent with innocent explanations, such as repairing the car. Accordingly, the police conducted a lawful stop for the purpose of investigating criminal activity, and they properly detained and questioned defendant and the passenger.  People v Smalls, 20134 NY Slip Op 07866, 1st Dept 11-26-13

STREET STOPS, DE BOUR

 

Reopening of Suppression Hearing to Address Deficiency in People’s Case (Pointed Out by the Defense in Post-Hearing Papers) Okay (But See People v Kevin W, 187, Ct App 11-21-13)

The First Department determined the suppression court properly allowed the suppression hearing to be reopened to address a deficiency in the People’s case:

The court providently exercised its discretion in reopening the suppression hearing, after both sides had rested and submitted legal arguments but before any decision on the merits had been made, to allow the People’s witness to provide additional testimony establishing the legality of the police conduct … . “A request to present additional evidence in this type of situation should be addressed to the court’s discretionary power to alter the order of proof within a proceeding …, rather than being governed by the restrictions on rehearings set forth in People v Havelka (45 NY2d 636 [1978])” (id. at 481).

Defendant argues that since the reopening came after defense counsel had pointed out a deficiency in the People’s case, there was a heightened risk of tailored testimony. However, “one of the purposes of requiring timely and specific motions and objections, a requirement applicable to suppression hearings, is to provide the opportunity for cure … . It would be illogical to require a defendant, for preservation purposes, to point out a deficiency at a time when it can be corrected, but then preclude the People from correcting the deficiency. In Whipple, the Court of Appeals disapproved of such a notion, which it described as “a sort of gotcha’ principle of law” (97 NY2d at 7).  People v McCorkle, 2013 NY Slip Op 07835, 1st Dept. 11-26-13

 

,

A Sex Offender Cannot Be Confined to a Treatment Facility as Part of “Strict and Intensive Supervision” under Article 10

The Court of Appeals, in a full-fledged opinion by Judge Rivera (over a dissent), determined that, pursuant to Article 10 of the Mental Hygiene Law, a sex offender could either be confined or placed under strict and intensive supervision (SIST), not both.  Here the hearing court determined the People did not meet their burden demonstrating the offender (Nelson D) should be confined, but included confinement in a treatment facility (Valley Ridge) as part of strict and intensive supervision:

We conclude that article 10 provides for only two dispositional outcomes, confinement or an outpatient SIST regime. Therefore, we agree with Nelson D. that, absent a finding of the type of condition that statutorily subjects him to confinement, his placement at Valley Ridge constitutes involuntary confinement, in violation of the plain language of Mental Hygiene Law article 10.  We also agree that involuntary commitment, as part of a SIST plan, deprives Nelson D. of the statutorily proscribed procedures mandated for confinement under article 10. Matter the State of New York v Nelson D, 194, CtApp 11-26-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy