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Assignment of Counsel Required Before Determining Whether Appeal Should Be Dismissed as Untimely

The Court of Appeals determined the appellate division was required to assign counsel upon a showing of indigency before ruling on whether defendant’s first-tier appeal as of right should be dismissed for failure to meet the timeliness requirement in the 2nd Department’s rules:

In this case, the Appellate Division erroneously failed to assign counsel to represent defendant before dismissing his first-tier appeal as of right based on his failure to timely perfect it.  Notwithstanding the Appellate Division’s rule mandating automatic dismissal of an untimely perfected appeal (see 22 NYCRR 670.8 [f]), its decision to dismiss the appeal here remained a discretionary determination on the merits of a threshold issue on defendant’s first-tier And an appellate court had not yet passed on, nor had counsel presented, defendant’s appellate claims with respect to dismissal or any other matter, thus leaving defendant ill equipped to represent himself. Because the factors cited in Douglas [372 US 387], Halbert [545 US 605] and Taveras [463 F3d 141], are present in the instant case, the Appellate Division was required to assign defendant an attorney upon a showing of indigence in order to enable him to oppose the court’s motion to dismiss his first-tier appeal as of right, and the court’s failure to appoint counsel to represent defendant without considering his indigency or the merits of dismissal warrants reversal and reinstatement of defendant’s appeal.  Upon remittal to the Appellate Division, that court should decide whether defendant is indigent pursuant to CPLR 1101.  If defendant establishes his indigence, the court must assign counsel to litigate the dismissal motion, and the court should determine, in its discretion, whether dismissal is appropriate. appeal, rather than an automatic bar to appeal … . People v Kordish, 252, CtApp 10-17-2013

 

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Waiver of Appeal Not Effective

In finding the defendant did not effectively waive his right to appeal, the Second Department explained:

…[T]he record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal … . The defendant’s purported waiver of the right to appeal is unenforceable, as the record does not indicate that he had ” a full appreciation of the consequences'” of such waiver … . While the defendant signed a written waiver, a written waiver “is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right” … . Accordingly, in the absence of a knowing, voluntary, and intelligent waiver of the right to appeal, the defendant retained his right to challenge the denial of that branch of his omnibus motion which was to suppress identification testimony… . People v Crawford, 2013 NY Slip Op 06705, 2nd Dept 10-16-13

 

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Sexual Offense Convictions Reversed as Against the Weight of the Evidence—Too Many Inconsistencies and Contradictions in Proof

The Second Department reversed defendant’s convictions on sexual offenses as against the weight of the evidence:

The testimony of the prosecution’s witnesses failed to provide a credible foundation for the defendant’s convictions due to numerous inconsistencies and contradictions. * * *

…[T]the prosecution’s witnesses testified that the defendant and the mother separated in 2002, and, at the time, the defendant had already moved out of the home where the abuse allegedly took place. Thus, many of the alleged incidents of abuse took place after the defendant had moved out of the home and no longer had a key to it. From 2003 to 2005, a restraining order that the mother obtained against the defendant was in effect, and the mother confirmed that, during one period of time in 2004, the defendant conducted all of his visits with the children outside of the home. The testimony of the prosecution’s witnesses was generally inconsistent as to whether, during the other visits, the defendant stayed alone with the children in the mother’s home, or whether the grandmother or the mother was always present. In any event, although the younger stepdaughter alleged that the defendant molested her twice per week between 2000 and 2004, the trial testimony clearly established that the defendant’s access to the children was often limited after he moved out of the mother’s home in 2002.  People v McMitchell, 2013 NY Slip Op 06713, 2nd Dept 10-16-13

 

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Robbery Conviction Against Weight of Evidence—Hand In Pocket Not Evidence of Threat to Use Force

In reversing the defendant’s robbery conviction as against the weight of the evidence, the Second Department determined the fact that defendant’s hand was in his pocket did not support the “threat to use immediate physical force” element of the offense:

This Court has held that where an unarmed person “positions his hand in his pocket in a manner that is intended to convey to his victim the impression that he is holding a firearm,” that qualifies as displaying what appears to be a gun … . Since the defendant here admitted to knowingly entering the warehouse with the intent to commit a crime therein, the acquittal of burglary in the second degree could only be based upon the People’s failure to prove that the defendant displayed what appeared to be a firearm, or, in other words, upon the People’s failure to prove that the defendant positioned his hand in his pocket in a manner intended to convey to the complainants the impression that he was holding a gun.

The trial court’s factual finding that the defendant did not display what appeared to be a firearm is supported by the record. The trial court, however, failed to give that finding the proper weight with respect to the crime of robbery in the third degree … . If the People failed to prove that the defendant displayed what appeared to be a firearm by holding his hand in his pocket, then there was no basis on which the trial court could conclude that the defendant’s conduct of holding his hand in his pocket constituted a threat to use immediate physical force upon the complainants in order to overcome their resistance. Accordingly, the verdict of guilt with respect to robbery in the third degree was against the weight of the evidence, and we vacate that conviction and the sentence imposed thereon… .  People v Johnson, 2013 NY Slip Op 06709, 2nd Dept 10-16-13

 

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In SORA Proceeding, Offender Did Not Provide Sufficient Proof of Exceptional Response to Treatment

The Second Department noted that while an offender’s response to treatment can be a mitigating factor supporting a downward departure in a SORA proceeding, there was insufficient evidence of an exceptional response to treatment in this case:

A downward departure from a sex offender’s presumptive risk level generally is only warranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the Sex Offender Registration Act (hereinafter SORA) Guidelines … . A defendant seeking a downward departure has the initial burden of “(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” … .

Here, the defendant identified an appropriate mitigating factor that could provide a basis for a discretionary downward departure (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]… .). In this regard, the SORA Guidelines recognize that “[a]n offender’s response to treatment, if exceptional, can be the basis for a downward departure” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]…). However, the defendant failed to establish, by a preponderance of the evidence, the facts in support of its existence… . People v Guzman, 2013 NY Slip Op 06671, 2nd Dept 10-16-13

 

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Uncharged Crime Evidence (911 Call) Admissible to Explain Aggressive Actions of Police

In a full-fledged opinion by Judge Abdus-Salaam, over a dissent, the Court of Appeals determined it was not an abuse of discretion to allow in evidence a 911 call, which could have been interpreted to have implicated defendant in an uncharged robbery, to explain the aggressive actions of the police when they stopped and seized the defendant, who was convicted of a weapon-possession charge:

Determining whether the probity of such evidence exceeds the prejudice to the defendant “is a delicate business,” and as in almost every case involving Molineux or Molineux-type evidence, there is the risk “that uncharged crime testimony may improperly divert the jury from the case at hand or introduce more prejudice than evidentiary value” … .  Yet this case-specific, discretionary exercise remains within the sound province of the trial court …, which is in the best position to evaluate the evidence … .  Thus, the trial court’s decision to admit the evidence may not be disturbed simply because a contrary determination could have been made or would have been reasonable.  Rather, it must constitute an abuse of discretion as a matter of law … .

On this record, we cannot say that the admission of the 911 evidence was an abuse of discretion.  The trial court reasonably determined that, given the aggressive nature of the police confrontation with defendant and the attendant risk of improper speculation by the jury, the 911 evidence was necessary to provide background information explaining the police actions, and that its probative value outweighed the potential prejudice to defendant … .  Defendant claims that the 911 evidence had no probative value because he admitted to possessing the gun and agreed not to challenge the propriety of the police stop.  But the 911 evidence was probative of all of the police conduct in this case, not just the stop itself.  The police behaved aggressively after the stop and before they discovered the gun by singling out defendant, grabbing him, and forcing him up against their patrol car.  By specifying why the officers stopped defendant in the first instance, the 911 evidence allowed the jury to put this conduct in the proper context.

The evidence was also probative of the officers’ credibility, which was a central issue for the jury to resolve on the resisting arrest charge ….  The People had the burden of proving every element of the resisting arrest charge …, and meeting that burden depended largely on the jury’s evaluation of the officers’ testimony and, particularly, the weight the jury accorded it in relation to contrary testimony proffered by defendant … .  Although the officers admitted to grabbing defendant, pushing him against the car, and tackling him when he tried to escape, defendant testified that the officers hit him several times in the head and face, that he never tried to escape, and that the officers’ violent acts were essentially unprovoked.  There was also contrary testimony about how the officers recovered the gun, which direction defendant was walking when he was stopped, and whether he was alone or with two black men as described in the radio run.  The 911 evidence better enabled the jury to resolve these discrepancies and assess the credibility of the officers’ testimony.  Without a complete picture of the events preceding the encounter, the jury would have had little reason not to fault the officers for being overly aggressive and to discredit their testimony as untruthful.

Any potential for prejudice here was offset by the trial court’s four strong limiting instructions, which emphasized that the 911 evidence “was not to be considered proof of the uncharged crime” … .  People v Morris, 147, CtApp 10-15-13

 

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SORA Determination Made at Sentencing (Which Included Incarceration) Invalid

The Second Department reversed Supreme Court’s SORA determination because the court failed to follow the procedure required for an incarcerated defendant.  The SORA determination was made at sentencing:

In this case, the Supreme Court sentenced the defendant to a nine-month term of incarceration without any probation supervision. The court conducted the risk assessment hearing and made its risk level determination immediately after sentencing, using a risk level assessment instrument prepared by the District Attorney’s office. This violated SORA and deprived the defendant of his right to due process … . Pursuant to the SORA statutory scheme, a risk level determination should not have been made until 30 days before his release from custody (see Correction Law § 168-n[2]… ). The court’s determination should have been preceded by the Board’s risk level recommendation, and the defendant should have been notified of the opportunity to submit to the Board any information that he believed was relevant for its review (see Correction Law § 168-n[2], [3]). Under the circumstances presented here, the fact that the defendant did not explicitly object to this procedure does not indicate that he knowingly and intelligently waived these statutory and due process rights or failed to preserve the issue for appellate review … . Moreover, while Correction Law § 168-l(8) provides that, notwithstanding the Board’s failure to act, a court may still make a determination regarding a sex offender’s risk level, “this must be read as applying only where the Board had the opportunity to make a recommendation in the first instance” … . Here, the Board had no such opportunity, since the risk level determination was erroneously made immediately after the defendant was sentenced. As a result, “the Supreme Court was without a statutorily-authorized basis for making a risk level determination”… .  People v Game, 2013 NY Slip Op 06670, 2nd Dept 10-16-13

 

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Failure to Allow Hearsay Admissible as Statement Against Penal Interest Required Reversal

In a weapon-possession case, the Court of Appeals, over a dissent, reversed the appellate division and held the defendant should have been allowed to call an attorney to testify that a (separately tried and acquitted) co-defendant told the attorney the weapon at issue was hers.  The court found the attorney’s testimony was admissible under the statement-against-penal-interest exception to the hearsay rule:

The declaration against penal interest exception to the hearsay rule “recognizes the general reliability of such statements . . . because normally people do not make statements damaging to themselves unless they are true” … .  The exception has four components:    (1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction or refusal to testify on constitutional grounds; (2) the declarant must be aware at the time the statement is made that it is contrary to penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient proof independent of the utterance to assure its reliability … .  The fourth factor is the “most important” aspect of the exception … .  Assuming that the other elements are satisfied, such statements can be admissible if there is “a reasonable possibility that the statement might be true” … .

We conclude that the courts below erred by focusing on the inconsistency between the … codefendant’s trial testimony and her pretrial statement to [the] lawyer. Knowledge that a declaration is against penal interests must be assessed “at the time” it was made …, and later recantations generally affect the weight and credibility that a fact-finder should ascribe to the statement.  Applying this legal standard, there was adequate evidence to establish admissibility under the particular facts of this case:  the handgun was found in a handbag located in the rear of the automobile directly adjacent to the … codefendant; she was the only woman in the vehicle; and the circumstances under which the utterance was declared make it clear that the statement was against her interests.  Contrary to the dissent’s contention, there was also sufficient proof that the woman was not available to testify.  Finally, the exclusion of the statement cannot be deemed harmless because the People’s case was not overwhelming.  Defendants are therefore entitled to a new trial.  People v Shabazz, 150, CtApp 10-15-13

 

Out of State Conviction of then 15-Year-Old Could Not Serve as Basis for Second Felony Offender Sentence

The Court of Appeals determined that the defendant’s Pennsylvania conviction for third degree murder (when the defendant was 15) could not serve as the basis for a second felony offender sentence.  In so finding, the court noted that the error did not need to be preserved for the Court of Appeals to reach it:

As an initial matter, we conclude that this case falls within the narrow exception to our preservation rule permitting appellate review when a sentence’s illegality is readily discernible from the trial record … . * * *

Penal Law § 30.00 (1) specifies that a person must be at least 16 years old to be criminally responsible for his conduct.  Penal Law § 30.00 (2) lists crimes that are exceptions to this age requirement, but second-degree manslaughter is not among them.  So assuming as we must for purposes of this appeal that third-degree murder in Pennsylvania is equivalent to second degree manslaughter in New York, defendant’s Pennsylvania conviction was not a predicate felony conviction within the meaning of Penal Law § 70.06 (b) (i) because he could not even have been prosecuted for second-degree manslaughter in New York at the age of 15.  People v Santiago, 159, CtApp 10-15-13

 

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Trial Judge’s Participation in Readbacks Not Mode of Proceedings Error

In a full-fledged opinion by Judge Read, the Court of Appeals determined the trial judge’s participation in the readbacks of testimony requested by the jury did not amount to a mode of proceedings error.

…[T]he two jury notes — requests for readbacks of two witnesses’ testimony — were disclosed in their entirety in open court before the trial judge responded to them. And the judge explained exactly how he was going to conduct the readbacks.  If defense counsel considered the judge’s intended approach prejudicial, he certainly had an opportunity to ask him to alter course, and it behooved him to do so… . * * *

…[W]e agree with the [2nd] Department that, as a general matter, a trial judge should shun engaging in readbacks of testimony.  In the usual case, it is easy enough for a judge to assign this task to non-judicial court personnel and thereby avoid any risk of creating a misperception in the minds of the jurors.

In a case where a trial judge nonetheless elects to participate in a readback (certainly, nothing in CPL 310.30 prohibits it), any error is not of the mode of proceedings variety.  “Not every procedural misstep in a criminal case is a mode of proceedings error”; rather, this narrow exception to the preservation rule is “reserved for the most fundamental flaws,” such as shifting the burden of proof from prosecution to the defense, or delegating a trial judge’s function to a law secretary… . People v Alcide, 143, CtApp 10-10-13

 

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