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Jail Time Does Not Count Toward Subsequent Offense Until Previous Sentence Expired

Defendant was released on parole for a 2001 conviction.  While on parole he committed an offense and was jailed.  The Fourth Department determined that the time defendant was in jail must first be credited to the 2001 conviction.  Only after the 2001 sentence was completely served could any jail time be credited to the subsequent (2009) conviction:

Here, “[a]ny jail time served prior to the maximum expiration date of the [2001] sentence was properly credited toward that sentence until it expired on its own terms on [July 4, 2009] … .  “Thus, the [2009] sentence was properly credited only with jail time served after the expiration of the [2001] sentence” ….  In other words, “petitioner is not entitled to jail time credit against the [2009] sentence for the jail time that was credited against the [2001] sentence”… .  Matter of Grahm v Walsh, 811, 4th Dept 7-19-13

 

Defendant’s Wearing a Stun Belt During Trial Without Knowledge of Judge Did Not Constitute a “Mode of Proceedings” Error

The Fourth Department determined the defendant’s wearing of a “stun belt” during his trial (unbeknownst to the judge and to which no objection was made) did not constitute a mode of proceedings error.  The dissent argued to the contrary, characterizing the sheriff’s use of the stun belt without the court’s involvement as a usurpation of the power of the court:

County Court could not have granted defendant’s motion under CPL 440.10 (1) (f) unless the unauthorized use of the stun belt at trial constitutes a mode of proceedings error, in which case reversal would have been required on direct appeal if the use of the stun belt had been disclosed on the record … .

We respectfully disagree with our dissenting colleague that the improper use of the stun belt, i.e., at the direction of the Sheriff rather than the court, constitutes a mode of proceedings error.

Indeed, we note that a mode of proceedings error occurs “[w]here the procedure adopted by the court . . . is at a basic variance with the mandate of law” …, and that is not the case here.  We further note that in Buchanan the court deferred to the Sheriff, indeed delegated to the Sheriff, the determination whether defendant should wear the stun belt after the court acknowledged that defendant had done nothing to merit it (see Buchanan, 13 NY3d at 3), but the Court of Appeals did not find the error to be a mode of proceedings error.  Instead, the Court of Appeals simply ruled that the court failed to exercise its discretion… .  People v Schrock, 800, 4th Dept 7-19-13

 

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Improper Admission of Evidence of Similar (Pending) Criminal Charge under Molineux Required Reversal

The Fourth Department determined a new trial was required where the trial court allowed the prosecution to present evidence (in its direct case) of a pending attempted robbery charge under Molineux to prove identity.  The defendant was on trial for allegedly robbing a hotel clerk in Cayuga County and the Molineux evidence involved the attempted robbery of a hotel clerk in Onondaga County.  The Molineux evidence included the testimony of five witnesses and a video of the attempted robbery.  The Fourth Department wrote:

“Before admitting evidence of other crimes to establish identity, the Trial Judge must find that both modus operandi and defendant’s identity as the perpetrator of the other crimes are established by clear and convincing evidence” (Prince, Richardson on Evidence § 4–514 [Farrell 11th ed]…).  Here, the record establishes that the court ruled that the evidence of defendant’s identity with respect to the attempted robbery would be admissible as a matter of law, but did not determine the relevancy of the identification evidence of the attempted robbery, nor did it properly balance its prejudicial effect as against its probative value… .  Additionally, there is no indication in the record that the court found that the modus operandi and defendant’s identity as the perpetrator of the attempted robbery were established by clear and convincing evidence.  We thus conclude that the case before the jury became a prohibited “trial within a trial”… .  We further conclude that the evidence of the attempted robbery was “sufficiently prejudicial so as to deprive defendant of a fair trial”… .  People v Larkins, 756, 4th Dept 7-19-13

 

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In SORA Proceeding, Child Pornography Properly Considered Under Factor 7 (“Relationship Between Offender and Victim”)

In affirming a SORA determination, the Fourth Department noted that the 20 point assessment under risk factor 7 (entitled “Relationship Between Offender and Victim”), based upon the defendant’s pleading guilty to receiving child pornography (a federal statute), was appropriate:

With respect to …the 20 points assessed under risk factor 7, we note that the underlying conviction was a federal offense to which defendant pleaded guilty to receiving child pornography (18 USC 2252 [a] [2]).  Although the Court of Appeals has stated that “[i]t does not seem that factor 7 was written with possessors of child pornography in mind” …, the Court of Appeals determined that points were properly assessed under risk factor 7 in a case where the defendant was convicted of possessing child pornography….  Consequently, we conclude that the court here properly assessed points under risk factor 7. People v Noyes, 687, 4th Dept 7-19-13

 

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Judge’s Refusal to Allow Defendant to Call Inmate Witness Required Reversal

The Fourth Department reversed defendant’s conviction because the trial court refused defendant’s request to present an inmate witness who might have supported defendant’s version of events:

CPL 630.10 provides for the attendance of an inmate witness in a criminal action or proceeding upon a demonstration of “reasonable cause to believe that such person possesses information material” to such proceeding.  Here, defendant made the requisite showing under that statute, and the court abused its discretion in refusing to order the production of the subject inmate witness whose testimony defendant sought to present at trial… .  There is no dispute that the proposed inmate witness spoke to the driver of the vehicle in which defendant was a passenger just before defendant’s arrest.  The proposed witness was at a distance of between 20 feet and 20 yards from the vehicle at the time of defendant’s arrest.  Moreover, we note that there was no fingerprint evidence in this case, which involved a top count of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]), and the issue of defendant’s guilt turned largely on the testimony of two police detectives.  We cannot countenance the court’s refusal to allow defendant to present the testimony of a witness who might have supported defendant’s version of events.  People v Baxter, 599, 4th Dept 7-19-13

 

Repugnant Verdict Required Reversal

The Fourth Department, over a dissent, reversed defendant’s conviction of manslaughter in the first degree as a hate crime as inconsistent with defendant’s acquittal of manslaughter in the first degree (without the hate crime element).  The Fourth Department wrote:

“A verdict is inconsistent or repugnant . . . where the defendant is convicted of an offense containing an essential element that the jury has found the defendant did not commit” … .  “A verdict shall be set aside as repugnant only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury” …, “without regard to the accuracy of those instructions” … .  “The underlying purpose of this rule is to ensure that an individual is not convicted of ‘a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all’ ” ….

By acquitting defendant of manslaughter in the first degree, the jury necessarily found that the People failed to prove beyond a reasonable doubt at least one element of manslaughter in the first degree.  To find defendant guilty of manslaughter in the first degree as a hate crime, however, the jury must have found that the People proved beyond a reasonable doubt all of the elements of manslaughter in the first degree, plus the added element that defendant selected the victim due to his sexual orientation.  It therefore follows that the verdict is inconsistent.  People v DeLee, 419, 4th Dept 7-19-13

 

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Application for Certification as NYC School Bus Driver Should Have Been Denied Because of Past Drug Convictions

The First Department, over a dissent, reversed Supreme Court’s order that petitioner, who had been convicted of two drug offenses (felonies) in the past, be certified as a NYC Department of Education school bus driver.  The First Department explained the relevant criteria as follows:

Where the applicant seeks employment with the New York City Department of Education, the School Chancellor’s regulations apply and Regulation C-105 establishes procedures to be followed …for background investigations of pedagogical and administrative applicants. Regulation C-105 incorporates by reference article 23-A of the Correction Law. Correction Law § 752 (et seq.) prohibits unfair discrimination against a person previously convicted of a crime “unless: (1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or (2) the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals.” Correction Law § 753(a) – (h), which set forth eight factors a public agency must consider in connection with an application for a license, include the person’s duties and responsibilities, the bearing, if any, the criminal offense(s) will have on the person’s “fitness or ability” to perform his or her duties, the time that has elapsed since the occurrence of the crime(s), the seriousness of the crime, information about the applicant’s reputation, etc., and the legitimate interest of the agency in protecting the safety and welfare of specific individuals or the general public. Regulation C-105 provides further that in reviewing the record of an applicant who has a prior criminal conviction, DOE is particularly concerned with offenses, among others, that involve the possession, distribution or selling of controlled substances.

The Chancellor’s Regulation, like the Corrections Law, provides that where the applicant has a certificate of relief from disabilities, that certificate “shall” also be considered (Correction Law § 753[3]). The certificate, however, only creates a “presumption of rehabilitation” with respect to the crime the individual was convicted of, it does not create a prima facie entitlement to the license the person is applying for… .  Matter of Dempsey v NYC Dept of Educ, 2013 NY Slip Op 05289, 1st Dept 7-16-13

 

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Waiver of Appeal Invalid; Counsel Did Not Take Position Adverse to Client Re: Pro Se Motion

In affirming the conviction, the Third Department determined the waiver of appeal (re; the harshness of the sentence) was not valid and defendant’s counsel had not take a position adverse to the defendant with respect to defendant’s pro se motion to withdraw his guilty plea. Although defense counsel responded negatively when the court asked if counsel knew of any legal basis for defendant’s motion, the Third Department explained that counsel was unaware of the contents of the motion at the time the court asked about it:

County Court failed to adequately distinguish the right to appeal from  those rights that are automatically forfeited upon  a guilty plea, thus rendering defendant’s appeal waiver invalid…. Moreover, no mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal his conviction that he was  also waiving his right to appeal the harshness of his sentence …. Nor do we  find that the deficiencies in the allocution are cured by defendant’s written appeal waiver…  * * *

…[D]efense counsel’s negative  response  to County  Court’s inquiry  at the outset of the hearing as to whether  “there [was] any  legal basis in [counsel’s] knowledge to allow [defendant] to withdraw his plea of guilty” was clearly not an opinion on the merits of defendant’s pro se motion – which counsel had not yet reviewed – and, thus, counsel did not thereby take a position adverse to that of his client or affirmatively undermine  the arguments  that defendant sought to present to the court… .  People v Pimentel, 104070, 3rd Dept 7-11-13

 

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Prosecutor Need Not Accept Defendant’s Stipulation in Lieu of DNA Test

The Second Department affirmed Supreme Court’s denial of an Article 78 petition seeking prohibition with respect to an order that petitioner allow a buccal swab for DNA testing.  The petitioner argued that his offer to stipulate his DNA matched the DNA on two firearms should preclude the test. The Second Department held that a prosecutor was under no obligation to accept the offer to stipulate:

“[A] court order to obtain a [bodily] sample of a suspect may issue provided the People establish (1) probable cause to believe the suspect has committed the crime, (2) a clear indication’ that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable”…. “In addition, the issuing court must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect’s constitutional right to be free from bodily intrusion on the other” …. Here, the petitioner … contends that the People’s motion should have been denied on the ground that his offer to stipulate that his DNA matched the DNA recovered from the two firearms at issue provided a less intrusive method of obtaining the evidence. However, the law is manifestly clear that the People are under no obligation to accept an offer by a defendant to stipulate to a fact or to an element of a charged crime …, and “the decision as to whether to decline or accept such a stipulation lies wholly within the prosecutor’s discretion”…. Accordingly, since the petitioner has failed to demonstrate a clear legal right to the extraordinary remedy of prohibition, his petition is denied … .  Matter of Johnson v Shillingford, 2013 NY slip Op 05212, 2nd Dept 7-10-13

 

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Therapeutic Dog Allowed In Court to Support Alleged Child Victim of Sexual Offenses During Trial Testimony

The Second Department, in a full-fledged opinion by Justice Sgroi, determined that the “courts of this State should permit the presence of a therapeutic ‘comfort dog’ in a trial setting when the court determines that the animal may provide emotional support for a testifying crime victim.”  The defendant was charged with predatory sexual assault against a child.  The alleged victim was his daughter who 15 years old at the time of trial.  It was alleged that the victim twice became pregnant by the defendant and the defendant arranged for abortions in both instances.  The Second Department found support for its determination in Executive Law section 642-a (procedures making the judicial process less threatening to child victims).  The Second Department rejected defendant’s arguments that the presence of the dog violated his right to due process of law and right of confrontation.  People v Tohom, 2013 NY Slip Op 05234, 2nd Dept 7-10-13

 

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