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DEFENDANT WAS ACQUITTED OF MENACING AT THE FIRST TRIAL BUT THE EVIDENCE SUPPORTING THE MENACING CHARGES WAS ALLOWED IN THE SECOND TRIAL; THE COLLATERAL ESTOPPEL DOCTRINE PRECLUDED PRESENTATION OF THAT EVIDENCE IN THE SECOND TRIAL; NEW TRIAL ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s convictions and ordering a new trial, determined defendant’s acquittal of menacing in his first trial precluded evidence defendant displayed a firearm during a confrontation in the second trial:

At his second trial, the People were permitted to introduce in their case-in-chief, over defendant’s objection, the testimony of an eyewitness that, during a confrontation in a park that occurred prior to the shooting, defendant had pulled out a gun and waved it at the victim, and had cocked the gun and pointed it at the eyewitness. We agree with defendant that, under the circumstances here, the People were collaterally estopped by the earlier verdict from presenting evidence at defendant’s second trial concerning the alleged display of a gun during the earlier confrontation at the park … .

The doctrine of collateral estoppel “operates in a criminal prosecution to bar relitigation of issues necessarily resolved in defendant’s favor at an earlier trial” … . “[W]here the People have had a full and fair opportunity to contest issues, but have failed, it would be inequitable and harassive to again permit the prosecution to establish these same matters, as if the first trial had never taken place” … . Only those facts that were “necessarily decided” by a prior acquittal will have collateral estoppel effect in a subsequent prosecution … . Although it may “normally be impossible to ascertain the exact import of a verdict,” we are charged with giving “a practical, rational reading to the record of the first trial” to determine “whether a rational jury could have grounded its decision on an issue other than that which the defendant seeks to foreclose from consideration” … .

Here, the two menacing counts alleged that defendant intentionally placed or attempted to place another person in reasonable fear of physical injury, serious physical injury, or death by displaying what appeared to be a firearm, on the basis of his alleged actions at the park shortly before the murder. The eyewitness’s testimony at the first trial was the only evidence supporting the menacing counts. People v Moore, 2024 NY Slip Op 03941, Fourth Dept 7-26-24

Practice Point: Evidence supporting charges of which defendant was acquitted in the first trial cannot be presented in the second trial.

 

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THE STATUTE REQUIRING DEFENDANT TO REGISTER AS A SEXUALLY VIOLENT OFFENDER BASED ON AN OUT-OF-STATE CONVICTION FOR A NONVIOLENT OFFENSE IS UNCONSTITUTIONAL AS APPLIED TO DEFENDANT (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the statute which required designating defendant a sexually violent offender based upon an out-of-state conviction for a nonviolent offense was unconstitutional as applied to her:

In this proceeding under the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant appeals from an order insofar as it designated her a sexually violent offender. Defendant was previously convicted in North Carolina upon her guilty plea of sexual activity by a substitute parent under the theory of aiding and abetting, a felony offense (former NC Gen Stat § 14-27.7 [a]). The conviction required her to register as a sex offender in that state. After defendant moved to New York, the Board of Examiners of Sex Offenders (Board) determined that she was required to register as a sex offender in New York pursuant to Correction Law … .

… [T]he foreign registration clause of Correction Law § 168-a (3) (b) does not withstand constitutional scrutiny as applied to her. Initially, we agree with the People that, although a sexually violent offender designation affects a “liberty interest . . . [that] is substantial” … because it “imposes a stigma that broadly impacts a defendant’s life and ability to participate in society” … , “[t]he right not to have a misleading label attached to one’s serious crime is not fundamental in [the constitutional] sense” … . As a result, defendant’s “constitutional claims [are] subject to [*2]deferential rational basis review” … . That standard of review “is not a demanding” test, but rather “is the most relaxed and tolerant form of judicial scrutiny” … .

Here, defendant established that the People never disputed the nonviolent nature of the sex offense of which defendant was convicted in North Carolina and neither the Board nor the People requested that points be assessed under risk factor 1 for use of violence. Moreover, in support of their position that defendant be designated as a sexually violent offender, the People never argued that the sex offense was the statutory equivalent of a sexually violent offense in New York (see Correction Law § 168-a [3] [b]). In short, the sole reason put forward by the People for seeking the “sexually violent” designation was the operation of the challenged statute. People v Cromwell, 2024 NY Slip Op 03934, Fourth Dept 7-26-24

Practice Point: The Correction Law provision requiring a defendant to register as a sexually violent offender for an out-of-state conviction for a nonviolent offense is unconstitutional as applied.

 

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DEFENDANT WAS ERRONEOUSLY DENIED HIS RIGHT TO BE PRESENT AT THE SANDOVAL HEARING, NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s convictions and ordering a new trial, determined defendant was erroneously deprived of his right to be present for the Sandoval hearing:

Where a defendant is denied the right to be present during a Sandoval hearing, reversal of defendant’s conviction is required (… see … CPL 260.20), unless “defendant’s presence at the hearing would have been superfluous” … . Here, it cannot be said that defendant’s presence at the hearing would have been superfluous because the court’s ruling was a compromise and thus, it was not “wholly favorable to defendant” … . People v Anderson, 2024 NY Slip Op 04042, Fourth Dept 7-26-24

Practice Point: Defendant was erroneously denied his right to be present at the Sandoval hearing, new trial ordered.

 

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THE PEOPLE DID NOT DEMONSTRATE DUE DILIGENCE IN ASCERTAINING THE EXISTENCE OF A FORENSIC REPORT AND DISCIPLINARY RECORDS; TURNING THEM OVER UPON DISCOVERING THEM AND SUMBITTING A SUPPLEMENTAL CERTIFICATE OF COMPLIANCE (COC) DID NOT CURE THE OMISSION (FOURTH DEPT).

The Fourth Department determined the People did not meet their burden of demonstrating compliance with their discovery obligations before filing the Certificate of Compliance (COC):

… [W]e conclude that the People failed to meet their burden of establishing that they exercised due diligence and made reasonable inquiries prior to filing the July 2022 COC … . The People failed to put forward any evidence of their efforts “to ascertain the existence” of either the forensic report or the disciplinary records prior to filing the July 2022 COC (…CPL 245.50 [1]). Rather, the People’s submissions established that, after they became aware of the materials’ existence, they promptly provided them to defense counsel—an assertion that is undisputed. As the Court of Appeals stated in Bay, “post-filing disclosure and a supplemental COC cannot compensate for a failure to exercise diligence before the initial COC is filed” … . We note in particular that the forensic report was completed more than six months before, upon the case being assigned to a new prosecutor, it was discovered and provided …  . People v Baker, 2024 NY Slip Op 04006, Fourth Dept 7-26-24

Practice Point: The People must demonstrate due diligence in ascertaining the existence of discovery material. It is not enough to quickly turn them over upon becoming aware of their existence.

 

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DEFENDANT WAS NOT IN “CLOSE PROXIMITY” TO THE DRUGS WITHIN THE MEANING OF THE “ROOM” OR “DRUG FACTORY” PRESUMPTION; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s possession-of-drugs convictions and ordering a new trial, determined the “room” or “drug factory” presumption was not applicable:

… [S]ection 220.25 (2) provides that “[t]he presence of a narcotic drug . . . in open view in a room . . . under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found.” “Penal statutes ‘must be construed according to the fair import of their terms to promote justice and effect the objects of the law’ ” … . The drug factory presumption is “intended to allow police in the field to identify potentially culpable individuals involved in a drug business, under circumstances that demonstrate those individuals’ participation in a drug operation” … . According to its drafters, the presumption is “designed to remedy that situation wherein police execute a search warrant on a premises suspected of being a ‘drug factory,’ only to find dangerous drugs and/or drug paraphernalia scattered about the room. The occupants of such ‘factories,’ who moments before were diluting or packaging the drugs, usually proclaim their innocence and disclaim ownership of, or any connection with, the materials spread before them. Police, under such circumstances, are often uncertain as to whom to arrest. In addition, with the present burden of proof of knowing possession of dangerous drugs on the [P]eople, successful prosecution of persons other than the owner or lessee of such premises is extremely rare” … . …

… [T]he phrase “close proximity” in Penal Law § 220.25 (2) means “when the defendant is sufficiently near the drugs so as to evince defendant’s participation in an apparent drug sales operation, thus supporting a presumption of defendant’s knowing possession” … . “[T]he proximity determination requires careful consideration of the underlying facts related to defendant’s location on the premises” … . Thus, a defendant need not be apprehended within the same room as the drugs in order to satisfy the element of “close proximity” … , and the presumption applies to a defendant caught while trying to flee the premises upon the sudden entry by police … .  …

… [D]efendant was not apprehended in close proximity to the drugs as contemplated by the drug factory presumption, i.e., he was not “sufficiently near the drugs so as to evince defendant’s participation in an apparent drug sales operation, thus supporting a presumption of defendant’s knowing possession” … . Defendant was not apprehended in the room with the drugs, he was not apprehended fleeing from that room, and he was not apprehended within or outside of the home while attempting to hide from police. Thus, he was not apprehended under circumstances suggesting that he had, just “moments before,” been engaged in drug distillation or packaging … . People v Campbell, 2024 NY Slip Op 03995, Fourth Dept 7-26-24

Practice Point: Consult this decision for an explanation of the “room” or “drug factory” presumption re: the possession of drugs.​

 

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PRIMARILY BECAUSE OF CREDIBILITY ISSUES CONCERNING THE IDENTIFICATION OF THE DEFENDANT, THE SECOND DEPARTMENT REVERSED THE ROBBERY CONVICTION AS AGAINST THE WEIGHT OF THE EVIDENCE; THERE WAS A DISSENT (SECOND DEPT).

The Second Department, over a dissent, determined the defendant’s robbery conviction, which was based primarily on the complainant’s identification evidence, was against the weight of the evidence:

Here, an acquittal would not have been unreasonable since the defendant did not possess the complainant’s wallet, no physical evidence tied him to the scene of the theft or to the Lincoln in which the complainant had been abducted, and the clothing that the defendant was wearing did not match the description of the perpetrator’s clothing. Moreover, upon the exercise of our factual review power (see CPL 470.15[5]), we find that the rational inferences that can be drawn from the trial evidence do not support the convictions beyond a reasonable doubt. Initially, while the People speculate that the defendant could have put on the sweater at some time after he stole the complainant’s wallet, by the complainant’s version of events, the defendant was either engaged in a struggle with the complainant or under the constant watch of the complainant and his friend from the moment of the theft. Furthermore, the taxicab driver candidly admitted that he lost sight of the Lincoln and never saw it again, which cannot be reconciled with the complainant’s testimony that the two vehicles were “bumper to bumper” the entire time the taxicab followed the Lincoln.

The testimony of the complainant and his friend that they saw the defendant exiting the Lincoln cannot be credited.

The testimony of the complainant and his friend suffered other credibility issues. People v Delvalle, 2024 NY Slip Op 03896, Second Dept 7-24-24

Practice Point: Credibility issues can support the reversal of a conviction as against the weight of the evidence.

 

TWO DISSENTERS ARGUED DEFENDANT WAS ENTITLED TO RESENTENCING UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (THIRD DEPT).

The Third Department, over a two-justice dissent, determined County Court properly denied defendant’s request to be resentenced under the Domestic Violence Survivors Justice Act (DVSJA). Defendant pled guilty to manslaughter after her murder and assault convictions were vacated on appeal. She had been in an intimate relationship with the man she killed for a little more than a year:

From the dissent:

Pursuant to Penal Law § 60.12, a court may impose an alternative sentence under the DVSJA when a defendant has established by a preponderance of the evidence following a hearing that “(a) at the time of the instant offense, the defendant was a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of the same family or household as the defendant as such term is defined in [CPL 530.11 (1)]; (b) such abuse was a significant contributing factor to the defendant’s criminal behavior; [and] (c) having regard for the nature and circumstances of the crime and the history, character and condition of the defendant, that a sentence of imprisonment pursuant to [Penal Law §§ 70.00, 70.02, 70.06 or 70.71 (2) or (3)] would be unduly harsh” … . At such a hearing, “the court shall consider oral and written arguments, take testimony from witnesses offered by either party, and consider relevant evidence to assist in making its determination” … . “Reliable hearsay shall be admissible at such hearings” … . “The court may consider any fact or circumstances relevant to the imposition of a new sentence which are submitted by the applicant or the district attorney,” including “the institutional record of confinement of such person” … . “The court’s consideration of the institutional record of confinement of such applicant shall include, but not be limited to, such applicant’s participation in or willingness to participate in programming such as domestic violence, parenting and substance abuse treatment while incarcerated and such applicant’s disciplinary history” … . * * *

… [D]efendant explained that she and the victim had been in a relationship for a little [*8]over a year at the time of the subject incident. Around seven months into their relationship, the victim — who was 65 years old while defendant was 28 — became verbally, sexually and physically abusive. Defendant, who was financially dependent on the victim, detailed “almost daily” acts of violence perpetrated against her during their relationship, including threats to her life and instances in which the victim “slam[med] his fist into the side of [her]head,” “s[u]nk his nails into [her],” punched her, slapped her and scratched her. Defendant also testified that the victim bragged about having previously killed someone, sexually assaulted her while she was bound with a rope and drugged her with hallucinogens. In other statements contained in the record, defendant recounted the victim telling her: “I own you” and “If you leave, I’ll kill you.” He also attempted to control her weight and isolated her from friends and family, taking away her vehicle and phone and leaving her alone for “days on end” at the camp where they resided. She further explained that October 2013 — the month before the incident — was the worst month she had ever experienced in her entire relationship. As for defendant’s assertion that the victim isolated her, defendant’s mother confirmed that, for almost a year before the subject incident, there had been “no communication between [defendant] and her.”

Defendant also presented independent corroborative evidence in this regard … . * * *

A resentencing under CPL 440.47 is warranted. People v Angela VV., 2024 NY Slip Op 03851, Third Dept 7-18-24

​Practice Point: CPL 60.12 allows a reduced sentence for defendants who suffered domestic violence at the hands of the victim, criteria explained.

 

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THE TRAFFIC STOP WAS A PROPER EXERCISE OF THE POLICE “COMMUNITY CARETAKING FUNCTION;” BUT THERE WAS NO SHOWING THE SUBSEQUENT QUESTIONING WHICH LED TO DEFENDANT’S DWI ARREST WAS “COMMENSURATE WITH ANY PERCEIVED NEED FOR ASSISTANCE;” INDICTMENT DISMISSED (SECOND DEPT).

The Second Department, reversing County Court and dismissing the indictment, determined the statements made to police after a traffic stop, including his refusal to submit to a breath test, should have been suppressed. Defendant was behind the police car when he flashed his lights several times. The police pulled over but defendant just drove past them. The police then followed the defendant, pulled him over and asked why he flashed his lights and whether he was ok. Defendant’s response was not in the record. After it was clear defendant gave the police a phony birth date, he was asked to step out of the car. At that point the police suspected he was intoxicated:

… [T]he Constitution “is not a barrier to a police officer seeking to help someone in immediate danger” … . Deemed the “community caretaking function[ ]” by the United States Supreme Court … , this concept recognizes that police do not just fight crime, but “perform varied public service roles, including protecting citizens from harm” … . The police’s community caretaking function is “‘totally divorced from the detection, investigation, or acquisition of evidence’ of criminal conduct” … .

The Court of Appeals has determined that the police may stop an automobile in an exercise of their community caretaking function if two criteria are met. “First, the officers must point to specific, objective, and articulable facts that would lead a reasonable officer to conclude that an occupant of the vehicle is in need of assistance. Second, the police intrusion must be narrowly tailored to address the perceived need for assistance. Once assistance has been provided and the peril mitigated, or the perceived need for assistance has been dispelled, any further police action must be justified under the Fourth Amendment and Article I, section 12 of the State Constitution” … .

​… [T]he People failed to establish … that the police intrusion in this matter was narrowly tailored to address the perceived need for assistance. Upon permissibly stopping the defendant’s vehicle, [Officer} Pavinski appropriately asked the defendant why he had flashed his lights and whether everything was okay. However, there is no evidence as to the defendant’s response to this inquiry. Without such evidence, and in light of [Officer} Spilotros’s testimony that the defendant did not appear to be in distress, the People have not demonstrated that the continued questioning of the defendant was an intrusion “commensurate with [any] perceived need for assistance” … . … [T]here is nothing in the record indicating that the officers had suspicions that the defendant was intoxicated until after they determined that he had lied about his birth date and asked him to exit the vehicle. People v Serrano, 2024 NY Slip Op 03833, Second Dept 7-17-24

Practice Point: The police can stop a vehicle if they believe the driver may be in distress (community caretaking function). But the subsequent questioning of the driver must address the perceived need for assistance and should stop once it is determined no assistance is required.

 

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IT WAS REVERSIBLE ERROR TO EMPANEL AN ANONYMOUS JURY; ALTHOUGH THE ERROR WAS NOT PRESERVED, NEW TRIAL GRANTED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing defendant’s assault-related convictions and ordering a new trial, determined it was error to empanel an anonymous jury:

… [C]onsistent with our recent holding in People v Heidrich (226 AD3d 1096 [3d Dept 2024]), we find merit to defendant’s contention that County Court’s empaneling of an anonymous jury in his case was in error. We again note that the practice of empaneling an anonymous jury contains no statutory justification, as CPL 270.15 (1-a) merely permits the withholding of residential or business addresses of prospective jurors upon a showing of good cause … . While the Court of Appeals has not explicitly sanctioned the practice, it has suggested that, at the very least, “doing so is error where no ‘factual predicate for the extraordinary procedure’ has been shown” … . To that end, the People concede, and we agree, that the record contains no factual support for utilizing an anonymous jury in this case. Instead, the People focus their arguments on defendant’s failure to preserve the issue by consenting to the practice, alongside the contention that the error was, in any event, harmless. On the latter point, we need only note that we recently rejected the applicability of a harmless error analysis to this manner of error … . As to preservation, although defendant concedes his failure to object during pretrial proceedings, he asks that we take corrective action in the interest of justice (see CPL 470.15 [6] [a] …) Considering the totality of circumstances, including the potential effect on the fairness of trial that flows from the decision to utilize an anonymous jury without any justification … , we find such action is appropriate. We therefore exercise our interest of justice jurisdiction and grant defendant a new trial. People v Tenace, 2024 NY Slip Op 03784, Third Dept 7-11-24

Practice Point: Absent factual support for the procedure in the record, it is reversible error to empanel an anonymous jury.​

 

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HERE THE APPELLATE DIVISION, IN THE INTEREST OF JUSTICE, ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER (FOURTH DEPT).

The Fourth Department, reversing County Court, over a two-justice dissent, determined defendant should have been sentenced as a youthful offender for his role in a robbery::

… [T]he factors weighing against affording defendant youthful offender treatment are the seriousness of the offense, defendant’s alleged gang affiliation, and defendant’s failure to complete interim probation … . However, defendant was 15 years old at the time of the crime and had no prior criminal record. He accepted responsibility for his actions and cooperated with both police on the date of the incident and probation during his presentence report interview. According to his probation officer, although he had not yet begun substance abuse treatment in the extremely short period of time between his release from custody and his remand, he “report[ed] as directed, and ha[d] not secured any new charges.” Probation described defendant as “[m]otivated to avoid further difficulties” and his prognosis for lawful behavior as “guarded.” Indeed, probation asked that defendant’s “sentencing be adjourned for sixty days to allow . . . defendant the opportunity to be placed on electronic monitoring through Probation.” In addition, despite the senseless nature of this incident, defendant did not use a weapon, there is no allegation that this crime was gang-related, defendant was the youngest participant in the crime by approximately three years, and it was clearly an unplanned, spur-of-the-moment decision for which youthful offender adjudication is meant … . People v Davonte S.B., 2024 NY Slip Op 03635, Fourth Dept 7-3-24

Practice Point: The Appellate Division has the power to review the record and adjudicate a defendant a youthful offender in the interest of justice.

 

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