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All But Rape First Charges Were Time-Barred—Different Statute of Limitations for Rape First

The Fourth Department determined all charges but the Rape in the First Degree charge had to be dismissed as time-barred.  A change in the statute of limitations for Rape First applied to all such charges not time-barred at the time of the statutory change:

In 2002, when the crimes were committed, the statute of limitations for the charged offenses was five years (see CPL 30.10 former [2] [b]).  Because he was not charged until more than seven years later, defendant raised a facially viable statute of limitations defense, and the burden thus shifted to the People to prove beyond a reasonable doubt that the statute of limitations was tolled or otherwise inapplicable  We conclude that the People satisfied their burden with respect to the charge of rape in the first degree.  As the People correctly contend, the legislature amended CPL 30.10 in 2006 so as to abolish the statute of limitations for four sex offenses, including rape in the first degree and criminal sexual act in the first degree (see L 2006, ch 3, § 1).  The amendment applied not only to crimes committed after its effective date of June 23, 2006, but also to offenses that were not yet time-barred (see L 2006, ch 3, § 5 [a]).  People v Burroughs, 690, 4th Dept 7-5-13

 

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Defendant Was Lawfully Seized by Police Under these Facts

The Fourth Department affirmed Supreme Court’s denial of defendant’s suppression motion, finding that the defendant was not unlawfully seized under the following facts:

At the suppression hearing, a police officer testified that he stopped defendant because defendant was riding the motorbike in the road without a helmet.  When the officer asked defendant whether he had any identification, defendant answered, “no,” and took a step back, whereupon the officer reached toward defendant in an attempt to frisk him.  Before the officer could detain him, however, defendant ran away and, during his flight, punched another officer who had joined in the pursuit. Defendant was soon apprehended and found to be in possession of a loaded firearm, 20 bags of marihuana, and more than $2,000 in cash. People v Bradley, 685, 4th Dept 7-5-13

STREET STOPS, SEARCH AND SEIZURE

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Officer Outside Village Limits Did Not Have Jurisdiction to Arrest for Traffic Offenses but Arrest for DWI Okay

The Fourth Department determined a police officer, who was outside his jurisdiction when he arrested the defendant for DWI and traffic offenses, did not have the authority to arrest for the “petty offenses” but did have the authority to arrest for DWI:

The authority of a police officer to arrest an individual for a “petty offense” is limited to circumstances in which the officer “has reasonable cause to believe that such person has committed such offense in his or her presence” (CPL 140.10 [1] [a]), and “only when .. . [s]uch offense was committed or believed by him or her to have been committed within the geographical area of such police officer’s employment or within one hundred yards of such geographical area” (CPL140.10 [2] [a]).  The term “petty offense” is defined as “a violation or a traffic infraction” (CPL 1.20 [39]). Here, the arresting officer is employed by the Village of Gowanda, and it is undisputed that the arrest did not take place within 100 yards of the village limits. Thus, we conclude that the officer exceeded his jurisdictional authority when he arrested defendant for committing the traffic infractions, and the court should have granted defendant’s motion insofar as it sought dismissal of those counts.

We further conclude, however, that the court properly refused to dismiss counts one and four of the indictment, charging defendant with felony driving while intoxicated and resisting arrest, respectively. Pursuant to CPL 140.10 (3), a police officer may arrest a person for a crime, as opposed to a petty offense, “whether or not such crime was committed within the geographical area of such police officer’s employment, and he or she may make such arrest within the state, regardless of the situs of the commission of the crime.”  People v Twoguns, 668, 4th Dept 7-5-13

 

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Motion to Vacate Conviction Based upon Co-Defendant’s Affidavit Stating Defendant Not Involved Denied

In affirming the denial of a 440 motion to vacate defendant’s conviction based upon a co-defendant’s affidavit stating the defendant was not involved in the crimes, the Fourth Department wrote:

It is well settled that on a motion to vacate a judgment of conviction based on newly discovered evidence, the movant must establish, inter alia, that “there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and[] (6) which does not merely impeach or contradict the record evidence” ….  People v Smith, 642, 4th Dept 7-5-13

 

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Evidence Insufficient to Support Criminal Contempt in the First Degree—No Evidence of Intent to Harass (Two Dissenting Justices)

The Fourth Department, over a dissent by two justices, determined the evidence was legally insufficient to support criminal contempt in the first degree:

Even assuming, arguendo, that the evidence is legally sufficient to establish that defendant repeatedly made telephone calls to his ex-girlfriend, we agree with him that the evidence is legally insufficient to establish that he intended by those calls to harass, annoy, threaten or alarm her, with no purpose of legitimate communication (see § 215.51 [b] [iv];….    Rather, the only inference to be drawn from the evidence is that defendant made the calls with the intent to discuss issues of child support and visitation, not to harass, annoy, threaten or alarm his ex-girlfriend. We therefore modify the judgment accordingly.  People v Webb, 619, 4th Dept 7-5-13

 

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440 Motion Seeking DNA Testing of Evidence Properly Denied

In affirming the denial of a 440 motion by a defendant convicted of murder seeking DNA testing of blood evidence, the Fourth Department wrote:

We conclude that the court properly denied that part of the motion seeking testing … “because defendant failed to establish that there was a reasonable probability that, had those items been tested and had the results been admitted at trial, the verdict would have been more favorable to defendant”… .  People v Swift, 617, 4th Dept 7-5-13

 

Sentence Deemed Unduly Harsh and Severe

The Fourth Department reduced defendant’s sentence for criminal possession of stolen property in the third degree from 2 to 7 years to 7 months.  The People conceded the original sentence was unduly harsh and severe.  People v Raszl, 596, 4th Dept 7-5-13

 

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Evidence Needed to Corroborate Accomplice Testimony and Evidence Admissible at Restitution Hearing Explained

In affirming the conviction, the Fourth Department explained the criteria for corroboration of accomplice testimony, and the admissible evidence in a restitution hearing:

“New York’s accomplice corroboration protection requires only enough nonaccomplice evidence to assure that the accomplices have offered credible probative evidence that connects the accomplice evidence to the defendant”…. Even the most “[s]eemingly insignificant matters may harmonize with the accomplice’s narrative so as to provide the necessary corroboration” (id. [internal quotation marks omitted]).    Here, defendant’s accomplice testified that he assisted defendant in burglarizing the victim’s home and stealing the victim’s car, and that testimony was corroborated by the testimony of other witnesses that defendant was seen driving the victim’s stolen car the day after the burglary.* * *

The victim testified at the restitution hearing and provided a detailed breakdown of the value of the stolen items as well as documents establishing the cost of replacing the ignition and locks on her vehicle, which was returned to her. In addition, the amount of restitution owed to the victim’s insurance company, which was financially harmed by reimbursing the victim for a portion of the cost of changing the ignition and locks on her vehicle, was supported by the claim it submitted to the Genesee County Probation Department. It is immaterial that an employee of the insurance company did not testify at the restitution hearing because “[a]ny relevant evidence, not legally privileged, may be received [at a restitution hearing] regardless of its admissibility under the exclusionary rules of evidence” (CPL 400.30 [4] …). People v Wilson, 275, 4th Dept 7-5-13

 

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Participation in Program Can Be Delayed Until Close to Release Date

In affirming Supreme Court, in the face to the inmate’s request that he be placed in the sex offender counseling and treatment program (SOCTP) in 2015, the Third Department determined  the inmate’s participation in the program could be delayed until 2023, 36 months before his conditional release date:

An inmate’s evaluation by a case review team  under  Mental  Hygiene  Law  §  10.05 is triggered by notice to the Office of Mental  Health that the inmate  is “nearing anticipated release,” which is to be provided at least 120 days prior to such  “anticipated release” (Mental Hygiene  Law  §  10.05 [b]). In accordance with the foregoing, DOCCS has developed guidelines for administering sex offender treatment programs throughout the state. The guidelines recognize the need to allocate limited resources and provide that inmates shall be placed in sex offender treatment programs “as they get closer to their release date.”  Matter of Wakefield, 515002, 3rd Dept 7-3-13

 

Parole Board Should Have Used Risk Assessment Instrument

The Third Department determined an inmate was entitled to a new hearing on his request for discretionary parole release because the Board did not use the required written procedure for risk assessment:

[The inmate argued] the Board improperly failed to utilize a “COMPAS Risk and Needs Assessment” instrument in connection with the relevant amendments to Executive Law § 259-c (4), which became effective October 1, 2011 (see L 2011, ch 62, § 49 [f]). Significantly, Executive Law § 259-c (4) requires that the Board “establish written procedures for its use in making parole decisions as required by law,” and the Board acknowledges  that the statute requires it to incorporate risk and needs principles into its decision-making process. According to the record, the Board was trained in the use of the COMPAS instrument prior to petitioner’s hearing. Moreover, the Board acknowledges that it has used the COMPAS instrument since February 2012 and will use it for petitioner’s next appearance. Under these circumstances, we find no justification for the Board’s failure to use the COMPAS instrument at petitioner’s October  2011  hearing. Matter of Garfield, 515986, 3rd Dept 7-3-13

 

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