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Mitigating Factor (12 Years Since Release) Did Not Warrant Downward Departure in SORA Proceeding

he Second Department affirmed Supreme Court’s refusal to depart downward in a SORA proceeding, even though the fact that defendant had not been convicted of any sex offenses in the 12 years following his release from prison was a mitigating factor not taken into account by the risk assessment guidelines:

… [T]he defendant requested that the Supreme Court downwardly depart from his designation as a presumptive risk level two sex offender. In that respect, the defendant demonstrated, by a preponderance of the evidence, that he had not been convicted of any sex offenses in the 12 years following his release from prison, which is a mitigating factor not adequately taken into account by the SORA Risk Assessment Guidelines … . Nevertheless, in light of the grievous nature of the defendant’s offense and, thus, the danger he poses to society should he reoffend, the Supreme Court did not improvidently exercise its discretion in declining to downwardly depart from the presumptive risk level (…Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 2 [2006]). People v Rivera, 2013 NY Slip Op 05808, 2nd Dept 9-11-13

 

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Criteria for Downward Departure in SORA Proceeding Explained

The Second Department explained the criteria for a downward departure in a SORA proceeding:

A court has the discretion to downwardly depart from the presumptive risk level in a proceeding pursuant to SORA (see Correction Law article 6-C) only when the defendant makes a twofold showing … . The defendant must first identify, 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 [SORA] Guidelines” (…see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006 ed]). Next, the defendant must prove by a preponderance of the evidence the facts necessary to support the applicability of that mitigating factor … . In the absence of this twofold showing, the court lacks discretion to depart from the presumptive risk level … . Here, the defendant failed to make the requisite showings. Consequently, the Supreme Court did not have the discretion to depart from the presumptive risk level … . People v Ologbonjaiye, 2013 NY Slip Op 05807, 2nd Dept 9-11-13

 

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Criteria for Imposing Order of Protection for Longer than Two Years Based on Family Offense Involving Aggravating Circumstance (Use of Weapon Here) Explained

The Second Department, in a family offense proceeding involving the use of a weapon, explained the criteria for issuing an order of protection for a period longer than two years:

To issue an order of protection with a duration exceeding two years on the ground of aggravating circumstances, the Family Court must set forth “on the record and upon the order of protection” a finding of such aggravating circumstances as defined in Family Court Act § 827(a)(vii) (Family Ct Act § 842). The statutory definition of “aggravating circumstances” includes five distinct situations, set forth in the disjunctive: (1) “physical injury or serious physical injury to the petitioner caused by the respondent,” (2) “the use of a dangerous instrument against the petitioner by the respondent,” (3) “a history of repeated violations of prior orders of protection by the respondent,” (4) “prior convictions for crimes against the petitioner by the respondent,” “or” (5) “the exposure of any family or household member to physical injury by the respondent and like incidents, behaviors and occurrences which to the court constitute an immediate and ongoing danger to the petitioner, or any member of the petitioner’s family or household” (Family Ct Act § 827[a][vii]…),

A finding of aggravating circumstances under the fifth situation set forth in Family Ct Act § 827(a)(vii) must be supported by a finding of “an immediate and ongoing danger to the petitioner, or any member of the petitioner’s family or household” (Family Ct Act § 827[a][vii]; …). To the extent that certain language in Matter of Clarke-Golding v Golding (101 AD3d at 1118) might suggest that the “immediate and ongoing danger” requirement pertains to the other four situations enumerated in Family Court Act § 827(a)(vii) as well, it is not to be construed as such. Where the aggravating circumstances involve the use of a dangerous instrument (cf. Penal Law § 10.00[13]…), the “immediate and ongoing danger” requirement does not apply (Family Ct Act § 827[a][vii]… .  Matter of Kondor v Kondor, 2013 NY slip Op 05747, 2nd Dept 8-28-13

 

 

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Level One Request for Information Not Justified by “Drug-Prone” Area or Defendant’s “Flight”—Seized Handgun Should Have Been Suppressed

Over a dissent, the First Department determined the facts did not justify a level one stop of the defendant by the police inside a New York City Housing Authority building and, therefore, the motion to suppress the handgun found in defendant’s pocket should have been granted. The First Department explained that a defendant’s presence in a high-crime or drug-prone alone does not justify a police request for information:

The uniformed police officers entered the building to check on other officers stationed inside. As the officers made their way towards the lobby, they saw defendant descending the stairs. When defendant saw the officers, he froze, jerked back, began to retreat, then stopped and stood on the stairs. Based on defendant’s reaction, and given the drug-prone nature of the building, the officers “suspected [defendant of] trespassing,” and asked him to come down the stairs to “make sure if he lived in the building.”

Defendant initially told the officers that he lived there. However, when asked for identification, he began to stutter, and changed his story to say that he was visiting his girlfriend. Although defendant stated that he had his identification in his pocket, he began moving his hands “all over the place, especially around his chest area,” which the officers interpreted to be threatening and indicative of possession of a weapon. To “take control of the situation” before it could “get out of hand,” an officer grabbed defendant’s left arm and brought it behind defendant’s back, which caused defendant’s open jacket to open up further and reveal a silver pistol in the netted interior coat pocket. One officer removed the pistol from the pocket, and another handcuffed defendant. * * *

Presence in a high-crime or drug-prone location, without more, does not furnish an objective credible reason for the police to approach an individual and request information … . As we have observed, “[T]he reputation of a location, however notorious, does not provide a predicate for subversion of the Fourth Amendment” … .

Nor does an individual’s desire to avoid contact with police—even in a high-crime neighborhood–constitute an objective credible reason for making a level one inquiry… .  People v Johnson, 2013 NY Slip Op 05723, 1st Dept 8-27-13

 

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Defendant Denied Constitutional Right to Present a Defense—Evidence Victim Identified Another as the Perpetrator Wrongly Excluded

In a full-fledged opinion by Justice Miller reversing defendant’s conviction, the Second Department determined defendant had been deprived of his constitutional right to present a defense.  The primary problem identified by the Second Department (among many others not mentioned here but worth reading about) was the preclusion of evidence that the victim had repeatedly identified someone other than the defendant as the perpetrator of the crime.  Two crucial pieces of such evidence, an entry in the victim’s diary and a statement made to a third party by the victim, were hearsay.  The court found that the People’s hearsay objection was waived because it wasn’t raised before the appeal. Concerning the failure to allow evidence of the victim’s identification of another as the perpetrator, the Second Department wrote:

“Before permitting evidence that another individual committed the crime for which a defendant is on trial, the court is required to determine if the evidence is relevant and probative of a fact at issue in the case, and further that it is not based upon suspicion or surmise” … . “Then, the court must balance the probative value of the evidence against the prejudicial effect to the People and may, in an exercise of its discretion, exclude relevant evidence that will cause undue prejudice, delay the trial, or confuse or mislead the jury” … . Although a trial court has “broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters” …, “the trial court’s discretion in this area is circumscribed by the defendant’s constitutional rights to present a defense and confront his accusers” … .

Here, the evidence that the victim identified Uppal as the perpetrator was exculpatory evidence that was directly relevant to the fundamental issue in this case—the identity of the attacker. Furthermore, such evidence of third-party culpability, coming from the victim of the crime herself, cannot be properly characterized as “rest[ing] on mere suspicion or surmise”… People v Thompson, 2013 NY Slip Op 05707, 2nd Dept 8-21-13

 

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Writ of Prohibition Granted to Prevent Trial Judge from Precluding Testimony of Complainant—Complainant Would Not Release His Psychiatric Records

The First Department granted a writ of prohibition to prevent a trial judge from precluding the testimony of the complainant in a robbery case. The judge had precluded the testimony after the complainant refused to sign a HIPAA form to release his psychiatric records.  The complainant had acknowledged that he received psychiatric treatment and that he had auditory and visual hallucinations which were controlled by medication.  The First Department wrote:

An article 78 proceeding seeking relief in the nature of a writ of prohibition is an extraordinary remedy and is available to prevent a court from exceeding its authorized powers in a proceeding over which it has jurisdiction … . “The writ does not lie as a means of seeking a collateral review of an error of law, no matter how egregious that error might be . . . but only where the very jurisdiction and power of the court are in issue” … . Here, the court had no authority to issue this preclusion order since the records were neither discoverable nor Brady material … . It is undisputed that the People did not have the complainant’s records and did not know where he had been treated … . The People had no affirmative duty to ascertain the extent of the complainant’s psychiatric history or obtain his records … . The People advised the defense of the information they had regarding the complainant’s diagnosis and also apprised the defense of the complainant’s statements regarding his hallucinations. Therefore, no claim can be made that the People concealed any information from the court or the defense.  Matter of Johnson v Sackett, 2013 NY Slip Op 05663, 1st Dept 8-20-13

 

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Uniform Act to Secure Attendance of Witnesses from Without the State in Criminal Cases Allowed Colorado Court to Subpoena a Reporter for Purposes of Testifying About Her Confidential Sources in a Matter Related to the Aurora Movie-Theater Shootings

In a full-fledged opinion by Justice Clark, over a two-justice dissent in an opinion by Justice Saxe, the First Department determined a reporter could be compelled to testify, under Criminal Procedure Law section 640.10, in a Colorado proceeding which sought to identify law enforcement personnel who leaked information to the press.  The relevant facts are laid out in the dissenting opinion.  The petitioner in the case is James Holmes, the accused shooter in the Aurora, Colorado, movie theater massacre. The respondent is a reporter who interviewed two law-enforcement persons about the contents of a package allegedly sent by James Holmes to his treating psychiatrist.  A Colorado court issued a subpoena to the reporter.  Supreme Court enforced the subpoena under the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10).  Because the reporter has already appeared in Colorado, the controversy is moot.  But the First Department determined the exception to the mootness doctrine should be applied (important issue likely to recur, etc.). The reporter’s testimony about her confidential sources is protected in New York under Civil Rights Law section 79-h (b). But Colorado’s privilege statute is much weaker. The majority determined the privilege issue was irrelevant to the enforcement of the subpoena.  The dissent argued that the reporter would suffer “undue hardship” within the meaning of the statute if she were forced to reveal her confidential sources (because her livelihood depended on witness-confidentiality).  The majority wrote:

Petitioner furnished the court with a certificate issued, pursuant to the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10), by the Araphoe County District Court Judge, and demonstrated that respondent’s testimony was “material and necessary” …, and that she would not suffer undue hardship because petitioner would pay the costs of her travel and accommodations … . …

The narrow issue before the Supreme Court was whether respondent should be compelled to testify, and privilege and admissibility are irrelevant for this determination … . Respondent is entitled to assert whatever privileges she deems appropriate before the Colorado District Court. Compelling respondent to testify is distinguishable from compelling her to divulge the identity of her sources.  Matter of Holmes v Winter, 2013 NY Slip Op 05666, First Dept 8-20-13

 

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In Sex-Offense Trial, Discovery of the Victim’s Psychiatric Records Properly Denied and Cross-Examination About Psychiatric History Properly Prohibited

In a sexual-offense case, the Fourth Department affirmed the trial court’s refusal to allow the defense access to the victim’s psychiatric records and the court’s preculsion of cross-examination of the victim about her psychiatric history:

Mental health records are discoverable “where a defendant can demonstrate a good faith basis for believing that the records contain ‘data relevant and material to the determination of guilt or innocence,’ a decision which will rest ‘largely on the exercise of a sound discretion by the trial court’ ”… ..  Here, the court reviewed the records in camera before ruling that defendant was not entitled to any portion of that victim’s mental health counseling records, and the court did not abuse its discretion in reaching that conclusion.

We reject defendant’s further contention that the court abused its discretion by precluding cross-examination of the same victim regarding her psychiatric history.  “A defendant has a constitutional right to confront the witnesses against him through cross-examination.  With respect to the psychiatric condition of a witness, ‘the defense is entitled to show that the witness’s capacity to perceive and recall events was impaired by that condition’ ”… .  Here, defendant was permitted to question that victim about any medications that she was presently taking and whether those medications impaired her memory or affected her testimony.  However, defendant failed to show that her psychiatric history “would bear upon her credibility or otherwise be relevant”  … .  People v Tirado, 486, 4th Dept 8-15-13

 

Failure to Include Restitution in Plea Negotiations Precluded Imposing Restitution at Sentencing

The Second Department vacated defendant’s sentence because, although restitution was not part of the plea promise, restitution was imposed at sentencing:

At the sentencing proceeding, the defendant did not have a sufficient opportunity to object to the imposition of restitution. The court made a brief reference to “RJOs,” apparently referring to restitution judgment orders. After pronouncing the sentence, the court stated: “With respect to any and all surcharges, given the fact there’s significant restitution judgment order obligations here, I’m going to waive the surcharges.” Under these circumstances, the defendant’s contention will be addressed on the merits … .

Although a court is free to reserve the right to order restitution as part of a plea bargain, the plea minutes in this case do not indicate that the pleas of guilty were negotiated with terms that included restitution … . At sentencing, the defendant should have been “given an opportunity either to withdraw his plea[s] or to accept the enhanced sentence[s] that included both restitution and a prison sentence” …, or for the court to impose the sentences agreed upon at the plea proceedings. People v Pettress, 2013 NY Slip Op 05645, 2nd Dept 8-14-13

 

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Child Properly Found to Be a Vulnerable Witness and Properly Allowed to Testify Outside the Presence of the Defendant in a Sexual -Offense Trial

In a full-fledged opinion by Justice Hinds-Radix, the Second Department determined the seven-year-old witness (who was the alleged victim of sexual offenses by the defendant) was properly declared a vulnerable witness pursuant to CPL 65.20 and was properly allowed to testify outside the presence of the defendant over closed circuit television.

…[W]e find that the Supreme Court properly declared the child to be a vulnerable witness. Since the child was seven years old at the time of the trial, she was “particularly young” …. Further, the defendant occupied a position of authority, since he was the child’s great uncle by marriage, the child regarded him as a family member …, he was responsible for the care of the child at the time the crime occurred, and he had frequent contact with her …. Thus, two of the factors set forth in CPL 65.20(10) were established by clear and convincing evidence … . It is also clear from the record that the emotional trauma the child experienced when she attempted to testify in open court about the crime substantially impaired her ability to communicate with the jury. Under all of the circumstances, the Supreme Court’s determination that the child was a vulnerable witness is supported by clear and convincing evidence in the record … .

Furthermore, the child was properly permitted to testify outside of the physical presence of the defendant. The Supreme Court’s observations of the child when she was questioned in the courtroom, and the hearing testimony of the social worker, provided clear and convincing evidence that the cause of the child’s severe emotional upset was the defendant’s presence in the room …. Accordingly, the record supports the requisite specific finding that placing the defendant and the child in the same room during the testimony of the child would contribute to the likelihood that the child would suffer “severe mental or emotional harm” (CPL 65.20[11]).  People v Beltran, 2013 NY Slip Op 05638, 2nd Dept 8-14-13

 

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