The Third Department determined the failure of County Court to set forth the manner and time of the payment of restitution required that the restitution order be vacated and the matter remitted to correct the omissions. Peoplev Durham, 105027, 3rd Dept 10-17-13
The Third Department determined defendant’s guilty plea was invalid (based on the allocution) and vacated it in the absence of a motion to withdraw the plea or vacate the judgment of conviction:
As the record before us does not indicate that defendant ever actually entered a guilty plea pursuant to the plea agreement, we reverse. While defense counsel indicated that it was defendant’s “intent[]” to do so, after County Court had recited the terms of the plea agreement, which defendant indicated he had “heard,” defendant never actually admitted his guilt in any manner and did not enter a valid plea. The plea allocution simply does not reflect that defendant “understood the nature of the charge against him . . . and voluntarily entered into such plea” .. . Further, while defendant “was not required to recite the elements of his crime or engage in a factual exposition,” County Court did not pose any questions, read the count of the indictment, or explain the crime (or its elements) to which he was entering a plea, so as to “establish the elements of the crime” … ; nor did defendant provide “unequivocal . . . responses” or “indicate[] that he was entering the plea because he was, in fact, guilty” … .
While defendant did not move to withdraw the plea (and we have no indication on this record that defendant moved to vacate the judgment of conviction) so as to preserve his challenge to the factual sufficiency of the plea allocution … , we find it appropriate to exercise our interest of justice jurisdiction and reverse given, in part, that defense counsel may have been dissuaded from making such a motion by County Court’s advisement to defendant during the plea colloquy that if he violated the conditions of his release he “will not be permitted to withdraw [his] plea of guilty.” Thus, we find that the plea was invalid. People v Beniquez, 104692, 3rd Dept 10-17-13
In reversing County Court and dismissing the indictment on speedy trial grounds, the Third Department noted there was no evidence the defense agreed to an adjournment during the period another criminal proceeding against the defendant was ongoing:
There is no support in the record for the People’s unsubstantiated claim that “it was agreed and understood” that defendant consented to an adjournment or waiver from March 27, 2009 until July 17, 2009. “Adjournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay” … . “While a defendant may waive rights under CPL 30.30, the record here contains no evidence of any waiver, written or oral,” and the Court of Appeals has made clear that “prosecutors would be well advised to obtain unambiguous written waivers in situations like these” … . As the People failed to meet their burden of proving that the disputed 112-day period was not chargeable to them …, the People did not establish that they were ready for trial within the statutory six-month period (see CPL 30.30 [1] [a]). Therefore, defendant was entitled to dismissal of the indictment pursuant to CPL 30.30. People v Smith, 104091, 3rd Dept 10-17-13
The Third Department determined the People failed to prove that the cocaine seized from the defendant at the police station after his arrest was not the product of the earlier illegal arrest of the defendant (fruit of the poisonous tree). At the Dunaway hearing, the People presented no witnesses concerning the seizure at the police station. County Court’s finding that the “attenuation” doctrine supported the legitimacy of the seizure at the station was therefore not supported by the record:
Under well-established exclusionary rule principles, where police have engaged in unlawful activity – here, by arresting defendant without probable cause – evidence which is a result of the “exploitation of that illegality” is subject to suppression as the “fruit of the poisonous tree” unless one of the recognized exceptions to the exclusionary rule is applicable … . The exception at issue here, as specifically decided by County Court thereby preserving the issue for appeal (see CPL 470.05 [2]…), is attenuation, that is, whether the production of the cocaine evidence during defendant’s illegal detention resulted from the exploitation of that illegality, directly or derivatively … . The focus of the attenuation exception is “on the presence or absence of ‘free will’ or voluntariness regarding a defendant’s . . . acts which follow illegal police conduct; thus, the attenuation inquiry resolves whether the causal connection between the police misconduct and the later discovery of the challenged evidence is so far removed as to dissipate the taint” … . “That determination requires consideration of the temporal proximity of the arrest and [acquisition of evidence] . . ., the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct” … .
Given the complete lack of testimony at the Dunaway hearing regarding the post-illegal-arrest incident at the police station – including any intervening circumstances – in which cocaine evidence was reportedly seized from defendant’s person, we find that the People failed to satisfy their burden of proving the applicability of the attenuation exception. That is, the People did not prove that the evidence was not acquired by exploiting the illegal arrest but, rather, came about by means “sufficiently distinguishable from [the illegality] to be purged of illegality” … . Thus, County Court’s finding of attenuation is not supported by the hearing record. People v Small, 103485, 3rd Dept 10-17-13
In a full-fledged opinion by Judge Graffeo, the Court of Appeals affirmed the denial of motions to suppress certain statements made by the defendant to the police and to a friend in the presence of the police under the emergency doctrine. [The concurring judge felt the emergency was over when defendant spoke to his friend and his prior request for counsel rendered those statements suppressible. The majority held that the conversation with the friend was not police interrogation because there was no police involvement and the conversation was not a ploy by the police to elicit information from the defendant.] When the police encountered the defendant his clothes had wet blood on them and blood was found in defendant’s vehicle. The emergency doctrine applied because the police were justified in questioning the defendant to determine if someone was injured and needed help:
As a general rule, a person who is in custody cannot be questioned without first receiving Miranda warnings or after the right to counsel attaches … . There are exceptions to these principles, one of which is referred to as the “emergency doctrine” … . It recognizes that the Constitution “is not a barrier to a police officer seeking to help someone in immediate danger” …, thereby excusing or justifying otherwise impermissible police conduct that is an objectively reasonable response to an apparently exigent situation … . We have explained that the exception is comprised of three elements: (1) the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property and this belief must be grounded in empirical facts; (2) the search must not be primarily motivated by an intent to arrest and seize evidence; and (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched … . People v Doll, 141, CtApp 10-17-13
The Court of Appeals affirmed defendant’s rape conviction finding that defendant presented insufficient evidence to warrant a jury charge on the intoxication defense:
Although intoxication is not a defense to a criminal offense, a defendant may offer evidence of intoxication whenever relevant to negate an element of the charged crime (see Penal Law § 15.25). An intoxication charge should be issued when, viewing the evidence in a light most favorable to defendant …, “there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to [an] element . . . on that basis” … . In order to meet this “relatively low threshold,” defendant must present evidence “tending to corroborate his claim of intoxication, such as the number of drinks, the period of time between consumption and the event at issue, whether he consumed alcohol on an empty stomach, whether his drinks were high in alcoholic content, and the specific impact of the alcohol upon his behavior or mental state” … .
Here, the evidence was insufficient to allow a reasonable juror to harbor a doubt concerning the element of intent on the basis of intoxication. Defendant’s bare assertions concerning his intoxication were, by themselves, insufficient … . Nor did his statement to police and the victim’s testimony that she smelled alcohol on his breath corroborate defendant’s claim. While he may, indeed, have consumed alcohol prior to the events leading up to the crimes alleged, the evidence established that defendant’s conduct was purposeful. He cut a hole in a screen to gain entry, instructed the victim to be quiet, threw a blanket over her head, and stole her cell phone so she could not call the police. Given this evidence, the court correctly ruled an intoxication charge was not warranted. People v Beaty, 148, CtApp 10-17-13
In a full-fledged opinion by Judge Pigott (over a substantial partial dissent which dealt with defense counsel’s antagonistic behavior toward the judge and degrading comments about the defendant), the Court of Appeals determined the trial judge, who had represented the defendant in the past on an unrelated matter (about which the judge had no specific memory), properly denied defendant’s recusal request which alleged bias on the judge’s part:
Unless disqualification is required under Judiciary Law § 14, a judge’s decision on a recusal motion is one of discretion … . “This discretionary decision is within the personal conscience of the court when the alleged appearance of impropriety arises from inappropriate awareness of nonjuridical data” … . We have held that for any alleged bias and prejudice to be disqualifying it “must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case” … . People v Glynn, 155, CtApp 10-17-13
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
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
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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