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Motion to Withdraw Plea Should Have Been Granted

In determining defendant’s motion to withdraw his plea (which had been based in part upon the disposition of another indictment subsequently dismissed) should have been granted, the Second Department wrote:

Defendant pleaded guilty as part of a joint disposition of this case and another case, upon which he would be receiving a concurrent sentence of one year. However, the other indictment was dismissed, with finality, before defendant’s sentencing. The court should have granted defendant’s plea withdrawal motion, made on the ground that the plea had been induced by a promise that was ultimately unfulfilled…. The record establishes that defendant’s plea was induced in large part by the court’s specific representation that defendant was resolving two pending prosecutions. “It simply cannot be said on this record that defendant . . . would have pleaded guilty absent this assurance” …. As the dismissal of the other indictment amounted to a fundamental change in a “condition that induced [defendant’s] admission of guilt” …, he was entitled to withdraw his plea ….  People v Bennett, 2013 NY Slip Op 04714, 1st Dept, 6-20-13

 

County Court Had Jurisdiction to Correct 1999 Sentence Which Did Not Include Period of Post-Release Supervision

The Third Department noted that County Court had jurisdiction to correct defendant’s 1999 sentence, which did not include post-release supervision:

Defendant’s contention that County Court lacked jurisdiction due to an alleged unreasonable delay in correcting the sentence is without merit.    A delay in resentencing pursuant to Correction Law § 601-d is “not jurisdictional in nature and do[es] not deprive the court of the authority to correct an illegal sentence and resentence a defendant to a term of incarceration that includes a period of postrelease supervision”… . Furthermore, because defendant had not completed serving his initial sentence, the sentence was still subject to correction without invoking the protection against double jeopardy… .  People v Siler, 105042, 3rd Dept, 6-20-13

 

Victim’s Mother Should Not Have Been Allowed to Speak at Sentencing Because Defendant Convicted Only of Possession of Weapon, Not the Killing of the Victim/Failure to Inform Defendant of Pending Criminal Charges Against Prosecution Witnesses Not Error

The Third Department vacated defendant’s sentence because the victim’s mother was allowed to speak at sentencing.  Defendant was convicted only of possession of a weapon and not the killing of the victim.  The Third Department also noted that the failure to inform the defendant of pending charges against three prosecution witnesses was not a Rosario violation and was not otherwise required under the facts:

…[W]e find that County  Court abused  its discretion in allowing [the victim’s] mother  to speak at the sentencing hearing. There is no victim of the crime upon which defendant was convicted, as criminal possession of a weapon in the third degree requires only the possession of a firearm by  a person previously convicted of a crime … . Here, defendant’s conviction upon this charge was supported by evidence wholly separate from the circumstances surrounding [the victim’s] death, as [a witness] testified that he had provided the handgun to defendant the day prior.It was thus error to allow the mother to give a statement in which she described defendant as a “killer” who “got away with murder.” Moreover, we find merit in defendant’s contention, though not preserved …, that despite promising it would not consider the mother’s statement in imposing sentence, County Court may have considered the homicide charges when it sentenced him to the statutory maximum prison sentence of 3½ to 7 years.    As defendant contends, from a review of the sentencing transcript, it appears that the court improperly attributed guilt for [the victim’s] death to him.  *  *  *

The People’s failure to inform defendant of criminal charges pending against three prosecution witnesses does not constitute a Rosario violation … .  We  further note that two of these individuals did not  testify at trial…, and  disclosure regarding the disorderly conduct charge against the third …was not statutorily required, as the People were unaware  of that recent charge at the time of trial (see CPL 240.45 [1] [c];…).    Contrary to defendant’s contention, it is not reasonable under the circumstances here presented to impute knowledge of that pending charge to the entire District Attorney’s office.  People v Sheppard, 103880/104958, 3rd Dept, 6-20-13

 

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Text Messages Authenticated Because They “Made No Sense” Unless Defendant Sent Them

The Second Department determined the content of text messages was admissible (i.e., authenticated) because the messages “made no sense” unless sent by the defendant:

…[T]he text messages from the defendant to the complainant were properly admitted into evidence. Since the content of the text messages “made no sense unless [they were] sent by defendant” …, the text messages themselves were sufficient to authenticate that they were sent by the defendant … .  People v Green, 2013 NY slip Op 04623, 2nd Dept, 6-19-13

 

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Anonymous 911 Call Admitted Under Excited Utterance and Present Sense Impression Hearsay Exceptions

The Second Department determined a 911 recording of an anonymous caller was admissible under the excited utterance and present sense impression exceptions to the hearsay rule and the admission of the recording did not violate defendant’s right to confrontation:

The recording satisfied the excited utterance exception to the hearsay rule, since it evidenced that the caller was under the influence of the excitement of the incident and lacked the reflective capacity essential for fabrication…. Contrary to the defendant’s contention, the recording was also properly admissible as a present sense impression, since the caller’s statements were sufficiently contemporaneous … and were corroborated by the evidence adduced at trial…. Additionally, the admission of the recording did not violate the defendant’s right to confrontation. The call was nontestimonial in nature, since its primary purpose was to obtain an emergency response to the shooting….  People v Dockery, 2013 NY Slip Op 04621, 2nd Dept, 6-19-13

 

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Error to Impeach Defendant Re: Failure to Offer Exculpatory Version to Police; Error to Comment on Defendant’s Post-Arrest Silence (Harmless However)

The First Department determined it was error for County Court to have allowed the prosecutor to impeach defendant with his failure to present to the police an exculpatory version of events and to allow the prosecutor to comment upon defendant’s post-arrest silence:

County Court erred in allowing the prosecution, over the defendant’s objection, to impeach the defendant’s testimony with his failure to come forward to the police with an exculpatory version of the events, and in allowing the People to comment upon the defendant’s post-arrest silence in summation ….  People v Copp, 2013 NY Slip Op 04619, 2nd Dept, 6-19-13

 

“Mere Nervousness” Does Not Justify Police Inquiry/ More than “Mere Nervousness” in this Case

In finding that the police inquiry was proper because it was prompted by more than merely the defendant’s nervousness (which would not have been sufficient for a suspicion of criminality), the First Department explained:

The Court of Appeals’ decision in People v Garcia (20 NY3d 317 [2012]) does not dictate a different result. In Garcia defendant’s vehicle was pulled over because of a defective brake light. Aside from the faulty light, there was no indication of criminality by the occupants of the car; they merely appeared nervous and acted “furtive[ly]” by “stiffen[ing] up and “looking behind” upon being pulled over (id. at 320). The Court of Appeals agreed with this Court that a defendant’s nervousness, without more, is not enough to give rise to a founded suspicion of criminality that allows for a common-law inquiry. Here, however, apart from seeming nervous, defendant was observed in a drug-prone neighborhood pulling what appeared to be an aluminum foil packet out of his pocket. The arresting officer suspected that the aluminum foil contained cocaine because cocaine is often packaged in that manner. And, unlike Garcia, where the alleged “furtive” behavior was consistent with nervousness over being pulled over, here, defendant’s attempt to block the … officers’ view of the shirt pocket in which he had placed the aluminum packet was consistent with someone in possession of a controlled substance attempting to avoid apprehension. These circumstances were sufficient to give the police the requisite founded suspicion to approach and question defendant.  People v Loretta, 2013 NY Slip Op 04562, 1st Dept, 6-18-13

STREET STOPS

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Irrelevant Information in Presentence Report Should Not Have Been Allowed In “Dangerous Sex Offender” Proceeding

In affirming a jury finding of mental abnormality and a finding that respondent was a dangerous sex offender requiring confinement, the First Department noted that the state’s expert should not have been allowed to testify about respondent’s admission in a presentence report that he was in the vicinity of a rape with which he was never charged:

The court erred in permitting the State expert to testify regarding respondent’s admission, in a presentence report, that he was in the vicinity when a rape, with which he was never charged, was committed. While this statement was sufficiently reliable to show that respondent was in the vicinity of the rape, it was not reliable for the purpose of showing that he committed the rape…. Nevertheless, this error was harmless given the expert’s reliance on two brutal sexual assaults to which respondent pleaded guilty and a third that he admitted committing, and given the court’s appropriate limiting instructions, which served to dispel any prejudice …. Matter of State of New York v Charada T, 2013 NY Slip Op 04548, 1st Dept, 6-18-13

 

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Improper to Characterize Trial as “Search for Truth”

The Fourth Department noted that the prosecutor’s characterization of the trial as “a search for the truth” was improper (but did not warrant reversal).  People v Ward, 758, 4th Dept, 6-14-13

 

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Statute of Limitations Tolled Until Defendant Identified by DNA; Police Had “Tacit Consent” to Enter Apartment

The Fourth Department determined the statute of limitations was tolled until defendant was identified through DNA collected in an unrelated conviction.  In addition, the Fourth Department determined the police had “tacit consent” to enter defendant’s apartment:

Here, “[t]he record supports the court’s determination that the identity of defendant as the sexual assailant, and thus his whereabouts, were not ascertainable by diligent efforts” before 2008, when the State DNA Indexing System matched the DNA profile from the semen found on the victim’s night shirt with DNA obtained from defendant in conjunction with an unrelated 2007 conviction … .  * * *

Even assuming, arguendo, that there was a warrantless arrest of defendant in his apartment, we note that it is well settled that “tacit consent by a person with apparent authority . . . [is] sufficient to obviate any possible violation of the Payton rule”…. Here, the People established that the police officers entered the apartment with the consent of defendant’s father…. Although “the police may not have received express permission to enter the premises, [the] gesture [of defendant’s father] of opening the door, leaving it wide open, and then walking  away from it could certainly be interpreted by the police to consist of tacit approval for them to enter”….  People v Sigl, 716, 4th Dept, 6-14-13

 

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