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Persistent Felony Offender Statute Does Not Require Prior Felonies to be Equivalent to New York Felonies

The Fourth Department determined that the persistent felony offender statute did not require that the prior felonies taken into consideration for persistent felon status be equivalent to New York felonies:

The persistent felony offender statute … contains no language requiring that the underlying out-of-state conviction be for a crime that would constitute a felony in New York, i.e., “an offense for which a sentence to a term of imprisonment in excess of one year may be imposed” (Penal Law § 10.00 [5]), or that the elements of the foreign crime be equivalent to the elements of a New York crime (see § 70.10 [1] [b] [i]).  Rather, as noted by the Second Circuit in upholding the constitutionality of the persistent felony offender statute, “[s]ection 70.10 (1) (b) does not distinguish among felony convictions that arise under federal, New York State, or out-of-state law.  Thus, if the acts constitute a felony under federal or another state’s law, they will be deemed a felony for purposes of persistent offender status under [s]ection 70.10 even if there is no counterpart felony in New York law.  By contrast, under [s]ection 70.06 [the second felony offender statute], the underlying acts of a federal or out-of-state felony must be recognized as a felony in New York to qualify as a predicate felony” … .  People v Jones, 853, 4th Dept 9-27-13

 

Judge Properly Relied on Presentence Report to Refuse to Adjudicate Defendant a Youthful Offender

The Fourth Department determined that the trial judge’s refusal to adjudicate defendant a youthful offender, after a promise to do so, based upon information in the presentence report, constituted an adequate reason and explanation for the refusal:

“As a matter of law and strong public policy, a sentencing promise made in conjunction with a plea is conditioned upon ‘its being lawful and appropriate in light of the subsequent presentence report or information obtained from other reliable sources’ ” … .  Contrary to defendant’s contention, “the court’s reliance on the presentence report for its determination that defendant would not be afforded youthful offender status ‘constitutes an adequate explanation for the denial of defendant’s request for such status’ ” … . The presentence report “included mitigating and aggravating factors, [and therefore] adequately explained the court’s reasons for denying youthful offender status on the instant indictment” … .  People v Jamal H, 831, 4th Dept 9-27-13

 

Furtive Behavior Justified Pat Down Search

The Fourth Department determined the police properly searched (frisked) the defendant after a valid vehicle-stop based on his “furtive” behavior:

As defendant correctly concedes, the police officer lawfully stopped defendant’s vehicle because it had a broken taillight …, and defendant voluntarily exited the vehicle.  Given defendant’s furtive behavior before and after exiting his vehicle, including being “fidgety” and “evasive” when answering the police officer’s questions, turning the right side of his body away from the police officer, and placing his right hand in his jacket pocket, the police officer “reasonably suspected that defendant was armed and posed a threat to [his] safety” … .  “Based upon [his] reasonable belief that defendant was armed, the officer[] lawfully conducted [the] pat frisk” that resulted in the seizure of the gun … . People v Carter, 965, 4th Dept 9-27-13

 

Defendant Should Have Been Allowed to Testify Before the Grand Jury

The Fourth Department reversed the trial court and dismissed the indictment (without prejudice) because the defendant was deprived of his right to testify before the grand jury. The defendant gave notice of his intent to testify and appeared at the right time and place. The defendant signed a waiver of immunity but deleted three paragraphs from the document.  The Fourth Department determined the waiver was sufficient even with the deletions:

CPL 190.50 (5) provides that, if a defendant serves upon the People a notice of his intent to testify before the grand jury, appears at the appropriate time and place, and signs and submits to the grand jury “a waiver of immunity pursuant to [CPL] 190.45,” the defendant “must be permitted to testify before the grand jury” (CPL 190.50 [5] [b]; see CPL 190.50 [5] [a]).  In the event that the defendant complies with those procedures and is thereafter not permitted to testify, the appropriate remedy is dismissal of the indictment (see CPL 190.50 [5] [c]).  The parties do not dispute that defendant complied with the first two requirements of the statute. The only dispute is whether defendant signed “a waiver of immunity pursuant to section 190.45” (CPL 190.50 [5] [b]).  CPL 190.45 (1) provides that a waiver of immunity “is a written instrument” in which a person who is to testify before the grand jury stipulates that he or she “waives [the] privilege against self-incrimination and any possible or prospective immunity to which he [or she] would otherwise become entitled, pursuant to [CPL] 190.40, as a result of giving evidence in such proceeding.”  Here, the paragraphs in the waiver of immunity form that defendant left intact stated that defendant waived his privilege against self-incrimination and any immunity to which he would otherwise be entitled pursuant to CPL 190.40.  Thus, defendant signed a waiver of immunity form that complied with the requirements of CPL 190.45 (1) and was therefore required to be permitted to testify before the grand jury (see CPL 190.50 [5] [b]).  It is well settled that a defendant’s statutory right to testify before the grand jury “ ‘must be scrupulously protected’ ” … . People v Brumfield, 851, 4th Dept 9-27-13

 

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Criteria for Allowing Defendant to Proceed Pro Se Explained

In upholding the trial judge’s allowing defendant to proceed pro se, the Fourth Department explained the relevant criteria:

“A defendant in a criminal case may invoke the right to defend [pro se] provided:  (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” … .  “If a timely and unequivocal request has been asserted, then the trial court is obligated to conduct a ‘searching inquiry’ to ensure that the defendant’s waiver is knowing, intelligent, and voluntary”… . * * *

Before granting defendant’s request to proceed pro se, the court conducted the requisite searching inquiry, during which defendant stated, inter alia, that he had successfully represented himself at trial in a prior case.  From his initial appearance to his mid-trial request to proceed pro se, defendant expressed dissatisfaction with his assigned attorneys, against whom he had filed multiple complaints with the Attorney Grievance Committee, and he engaged in concerted efforts to assist in his defense.  The court “had numerous opportunities to see and hear . . . defendant firsthand, and, thus, had general knowledge of defendant’s age, literacy and familiarity with the criminal justice system” … .  In addition, the court fulfilled its obligation to ensure that defendant was “aware of the dangers and disadvantages of self-representation” … .  People v Chandler, 985, 4th Dept 9-27-13

 

Okay to Resentence to Determinate Sentence With No Postrelease Supervision Where Initial Sentence Omitted Reference to Postrelease Supervision

The Fourth Department determined defendant was properly resentenced to a determinate sentence without a period of post-release supervision as a remedy for the failure to inform the defendant of the post-release supervision the first time around:

…[T]he court properly resentenced defendant pursuant to Penal Law § 70.85 to the original sentence without imposing a period of PRS.  The statute permits the sentencing judge, with the consent of the People, to “re-impose the originally imposed determinate sentences of imprisonment without any term of post-release supervision.”  The statute was enacted to “avoid the need to vacate guilty pleas under … when defendants are not properly advised of mandatory terms of postrelease supervision” … .  Here, the People requested that the court resentence defendant pursuant to section 70.85, and the court granted that request.  The fact that defendant did not ask for resentencing is of no moment … People v Bennefield, 920, 4th Dept 9-27-13

 

No Requirement that Defendant Submit Affidavit in Support of Suppression Motion; No Requirement Defendant Deny Commission of Charged Offense to Warrant a Hearing on a Suppression Motion

Although the denial of defendant’s suppression motion was affirmed, the Fourth Department noted the trial court erred when it stated the suppression motion must be supported by an affidavit from the defendant and the defendant must deny participation in the alleged crime to warrant a hearing:

We agree with defendant that the court erred in ruling that defendant, in order to be entitled to a suppression hearing, was required to submit an affidavit in support of her motion.  As the Court of Appeals has stated, “suppression motions must be in writing, state the legal ground of the motion and ‘contain sworn allegations of fact,’ made by defendant or ‘another person’ ” … . .  A suppression motion may be based on factual allegations made upon information and belief by defense counsel, provided that, as here, the sources of the attorney’s information and the grounds of his or her belief are identified in the motion papers (see CPL 710.60 [1]).  The court also erred in suggesting that defendant was required to deny participation in the crime.  It is well settled that a defendant must either “deny participating in the transaction or suggest some other grounds for suppression” in order to warrant a suppression hearing… . People v Battle, 926, 4th Dept 9-27-13

 

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Imposition of Harsher Sentence After Appeal Was Vindictive

The Fourth Department determined the resentencing of defendant after appeal to a more severe sentence than was first imposed was vindictive and imposed the original sentence. The court wrote:

“In order to ensure that defendants are not being penalized for exercising their right to appeal, ‘a presumption of [institutional] vindictiveness generally arises when defendants who have won appellate reversals are given greater sentences . . . than were imposed after their initial convictions’ ” … .  “The threshold issue in evaluating whether a resentence is vindictive is whether the resentence is more severe than that originally imposed” … .  In order to justify an increased sentence, a court must set forth its reasons, and “ ‘[t]hose reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding’ ” … . * * * In our view, “[t]he record is devoid of any objective information sufficient to rebut the presumption of vindictiveness that arose from the court’s imposition of a sentence greater than that imposed after the initial conviction”… . People v Rhodes, 847, 4th Dept 9-27-13

 

Sentencing Court Could Amend Restitution Amount But First Must Give Defendant Opportunity to Withdraw Guilty Plea

The Third Department determined County Court had the authority to amend the amount of restitution initially ordered at sentencing.  However, the change required giving the defendant the right to withdraw the guilty plea:

Notably, “in the normal course of events, the People must ‘advise the court at or before the time of sentencing that the victim seeks restitution . . . and the amount of restitution . . . sought’ (Penal Law § 60.27 [1]), and the trial court must determine the amount of restitution at the time of sentencing” … .  Nevertheless, “the court’s continuing jurisdiction to impose restitution has been recognized where the claim for restitution is raised at or prior to sentencing and the modification or correction of the sentence occurs within a reasonable time thereafter” … .

Here, we do not find the delay between defendant’s September 2009 sentencing and the modification of the restitution order in September 2010 following a hearing unreasonable given the various factors presented by this case … .  “Nonetheless, [a] sentencing court may not impose a more severe sentence than one bargained for without providing [the] defendant the opportunity to withdraw his [or her] plea” … .  Thus, in light of the fact that the amended restitution amount unquestionably exceeds the total amount to which defendant agreed at the time of her plea and she seeks, among other things, vacatur of that plea herein, we deem it appropriate to remit the matter for the purpose of allowing defendant the opportunity to either accept the enhanced restitution amount or withdraw her plea… . People v Mahar, 103960, 3rd Dept 9-26-13

 

Concurrent, Not Consecutive, Sentences Should Have Been Imposed Where “Actus Reus” Was a Single, Inseparable Act

The Second Department corrected a sentence which illegally imposed consecutive, as opposed to concurrent, terms of imprisonment.  The defendant lured a 16 year-old girl to his apartment where they had consensual sex.  Then defendant then allowed the co-defendants to go into the bedroom where they had sex with her.  The court explained:

The imposition of consecutive sentences on the convictions of rape in the first degree, criminal sexual act in the first degree, and sexual abuse in the first degree, was illegal, except with respect to the sentence imposed on the conviction of criminal sexual act in the first degree under count 11. “Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand” … . Moreover, “a defendant may not waive the right to challenge the legality of a sentence” … .

Section 70.25 of the Penal Law provides that “[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences . . . must run concurrently” (Penal Law § 70.25[2]). “Under either of those circumstances, the court has no discretion; concurrent sentences are mandated” … . In determining whether two crimes were separate and distinct for the purposes of imposing consecutive or concurrent sentences, “it is the acts of the defendant that control” … . When the actus reus, or the ” wrongful deed that comprises the physical components of a crime'” …, is a “single inseparable act” that violates more than one statute, single punishment must be imposed … .

Here, the actus reus committed by the defendant in concert with each codefendant was “a single, inseparable act” …. With respect to each codefendant, the defendant’s actus reus violated more than one statute due solely to the acts committed by the codefendant after the defendant had already completed his role. Each actus reus of the defendant “warrants [only] a single punishment” ….  People v Singh, 2013 NY Slip Op 06033, 2nd Dept 9-25-13

 

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