You are here: / Criminal Law

JUDGE MUST DECIDE WHETHER TO TREAT AN ELIGIBLE YOUTH AS A YOUTHFUL OFFENDER, EVEN WHEN THE DEFENDANT DOES NOT ASK THE JUDGE TO DO SO (CT APP)

The Court of Appeals, in a full-fledged opinion by Judge Smith, over a concurring opinion and a two-judge dissent, determined that a judge must consider whether an eligible youth should be treated as a youthful offender, even where the defendant makes no request to do so:

CPL 720.20 (1) says that, where a defendant is eligible to be treated as a youthful offender, the sentencing court “must” determine whether he or she is to be so treated. We hold that compliance with this statutory command cannot be dispensed with, even where defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to [*2]make such a request. In so holding, we overrule People v McGowen (42 NY2d 905 [1977]). * * *

We read the legislature’s use of the word “must” in this context to reflect a policy choice that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain. Ordinarily, of course, defendants may choose to give up their rights, even very important ones, and indeed are deemed to have done so if they do not timely assert them. But this right—not a right to receive youthful offender treatment, but to have a court decide whether such treatment is justified—is different. To disable a court from making that decision is effectively to hold that the defendant may not have the opportunity for a fresh start, without a criminal record, even if the judge would conclude that that opportunity is likely to turn the young offender into a law-abiding, productive member of society.

The judgment of a court as to which young people have a real likelihood of turning their lives around is just too valuable, both to the offender and to the community, to be sacrificed in plea bargaining. Of course there will be many cases in which the interests of the community demand that youthful offender treatment be denied, and that the young offender be sentenced like any other criminal; indeed, there will be cases in which that is obviously the right course—but the court must make the decision in every case. Where the court’s ruling is a foregone conclusion, no purpose is served by a plea bargain that takes the decision out of the court’s hands. People v Rudolph, 2013 NY Slip Op 04840 [21 NY3d 497], CtApp 6-27-13

 

 

, ,

Family Court Could Not Countermand County Court’s Order of Protection

The Third Department noted that Family Court can not countermand County Court’s order of protection stemming from the father’s assault of the mother.  Therefore, Family Court could not require the mother to facilitate the reading of the father’s letters to the child:

Family Court does not have jurisdiction to countermand the provisions  of a  criminal court  order  of protection ….  Considering that “an order of protection issued incident to a criminal proceeding is an ameliorative measure intended to safeguard the rights of victims”…, the criminal court order of protection would have to be modified, if deemed appropriate by County Court, before Family Court would be authorized to require the mother to accept, read or facilitate the reading of the father’s communications to the child.  Matter of Samantha WW v Gerald XX, 513853, 3rd Dept 6-27-13

 

Parole Board Could Require No-Contact-with-Wife for One Year as a Condition

In upholding the Board of Parole’s determination that, as a condition of release on parole, petitioner, who had attacked his wife in the past, must refrain from any contact with his wife for one year and complete a domestic violence offenders program, the Third Department wrote:

…[T]the Board is vested with discretion to determine the conditions upon which an inmate is released, and its decision in that regard is not subject to judicial review if made in accordance with the law (see Executive Law §§ 259-c [2]; 259-i [5];…). Petitioners argue that the conditions at issue are unlawful, arbitrary and capricious, in that they lack a sufficient factual basis in the record and improperly impair their fundamental right to maintain a marital relationship. We disagree. Parole conditions that  are  “rationally  related  to  the inmate’s criminal history, past conduct and  future chances of recidivism” are not arbitrary and capricious ….   Moreover, petitioner’s fundamental rights to associate and marry may be restricted by  parole  conditions  that  are  “reasonably  related  to legitimate  penological  interests” … .  George v NYS Department of Corrections …, 516126, 3rd Dept 6-27-13

 

, ,

Supreme Court Case Relied Upon to Vacate Convictions by Guilty Plea Where Defendant Not Informed of Possibility of Deportation Can Not Be Applied Retroactively

The First Department, in a full-fledged opinion by Justice Tom, reversed the sentencing court’s vacation of defendant’s conviction (by guilty plea).  The sentencing court had reversed the conviction on the ground defendant had not been informed of the risk of deportation based on the plea.  The sentencing court’s ruling was based upon the US Supreme Court’s ruling in Padilla v Kentucky, 559 US 356 (2010), which the sentencing court determined should be applied retroactively.  The First Department explained that Padilla should not be applied retroactively, overruling First Department and 3rd Department precedent:

Padilla has been accorded retroactive application by this Court …and the 3rd Department…. However, since Padilla “marks a break from both Federal and State law precedents . . . and fundamentally alters the Federal constitutional landscape, the principles of retroactivity developed by the Supreme Court in construing Federal constitutional law govern the disposition of this case” (People v Eastman, 85 NY2d 265, 275 [1995]).

The holding that Padilla announced new law, by which this Court is bound, dictates the conclusion that it has no retroactive application. As Eastman explains:  “Pursuant to Teague, new rules of constitutional criminal procedure are applied retrospectively in one of two situations: (1) where the new rule places certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to proscribe’ or (2) where the new rule alters a bedrock procedural element of criminal procedure which implicates the fundamental fairness and accuracy of the trial” (Eastman, 85 NY2d at 275, quoting Teague, 489 US at 311-312).

The rule announced in Padilla does neither, merely prescribing a duty imposed on counsel, and does not warrant retroactive application. Thus, defendant may not avail himself of the ruling… People v Verdejo, 2013 NY Slip Op 04913, 1st Dept 6-27-13

 

, ,

County Court’s Suppression of Statements and Fruits of Search Reversed

The Third Department reversed County Court’s suppression of defendant’s statements and County Court’s finding that defendant had not voluntarily consented to the search of his car (both based on the absence of Miranda warnings).   The Third Department determined a reasonable person innocent of a crime would still have felt he was free to leave (i.e., that he was not in custody) after his failure of field sobriety tests and a negative alcosensor test.  The Third Department further noted that the failure to provide Miranda warnings would not necessarily render a consent to search involuntary:

The court ….overlooked the settled proposition that “[a] temporary roadside detention pursuant to a routine traffic stop is not custodial within the meaning of Miranda” … .The facts here reveal a reasonable initial interrogation attendant to a roadside detention that was merely investigatory…. The Troopers’ inquiries, the mixed results of the field sobriety tests and a negative alcosensor test would not have caused a reasonable person innocent of any wrongdoing to believe that he or she was in custody….   In our view, the Troopers’ observations of defendant’s condition justified the further  detention  for the  limited  purpose  of  investigating whether  he  was  operating his motor  vehicle in an  impaired condition… .  People v Brown, 105134, 3rd Dept 6-27-13

 

,

Failure to Fully Inform About Postrelease Supervision Required Reversal

After noting that a waiver of appeal does not preclude a challenge to the voluntariness of a guilty plea, the Third Department reversed because the defendant was not fully informed about the promised duration or potential range of postrelease supervision:

Here, the record reflects, as the People concede, that while the plea agreement included a specific negotiated sentence and a mention of postrelease supervision, defendant was never advised by the court of either a promised specific duration or the potential range of the mandatory postrelease supervision component prior to sentencing. Accordingly, his decision to plead guilty was not a knowing, voluntary and intelligent one and, therefore, the judgment of conviction must be reversed… . People v Brown, 105107, 3rd Dept 6-27-13

 

,

Ineffective Assistance of Counsel Required Reversal

In reversing the defendant’s conviction, the Third Department determined the defendant did not receive effective assistance of counsel:

Here, defense counsel did not give an opening statement. The People produced five witnesses and, during their testimony, there were no objections despite some objectionable questions. The  People’s  exhibits  were  received  without  objection,  including one  after proof  was  closed. Cross-examination, when conducted, was cursory and elicited little information that  would  be  useful or pertinent to a defense strategy. No witnesses were called on behalf of defendant.    Defense counsel’s summation,  which  was  only four sentences, started with the unhelpful comment  that “the reason we are here today is because [defendant] was unable to successfully  enter  a  plea  of  guilty by  way  of  providing an adequate  colloquy,”  and  added  little else  other  than  the conclusory request  for “the  [c]ourt  to  consider  this matter simply in regard to whether  there is reasonable doubt.” With no opening statement, no witnesses called and a feckless summation, counsel’s strategy  of  defense  is not apparent. In  addition,  pretrial efforts to  suppress  or  limit evidence – such as defendant’s statement to police and evidence about  uncharged  conduct  –  were  not  pursued. People v Bush, 105005, 3rd Dept 6-25-13

 

,

Defendant’s Being in the “General Area” Where Was Weapon Was Found and Defendant’s DNA on the Weapon Was Not Enough to Support Possession Conviction

The Third Department reversed defendant’s conviction for criminal possession of a weapon as against the weight of the evidence.  The evidence demonstrated that the defendant was in the general area where the gun was found and the defendant could not be excluded from the mixed DNA found on the gun.  The court wrote:

No one saw defendant with the gun, he was just near where it was found and his DNA was on it. The officer testified that defendant was 20 to 30 feet past the house, whereas Fox [defendant’s companion] was off his bicycle and appeared to be doing something near the house. The officer further testified that he found the gun in front of that house, and vaguely stated that defendant  was  in “the general area” where the gun was found. This does not prove that defendant possessed the gun on Sheridan Avenue at that time. Based  on  the  testimony  of the  officer and  the  forensic scientist, it is possible that Fox – who  the officer had seen directly in front of the house – could have had the gun and left it on the ground at that time, and defendant’s DNA could have been there from handling  it previously (which  may  prove  that defendant handled the  gun at some  point, but not  at the date and time alleged in the  indictment) or through  secondary  transfer (i.e., if Fox  touched defendant  and  then  the  gun,  transferring some  of defendant’s DNA onto the gun). Because this scenario is equally likely to have occurred, we cannot say that the weight of the evidence supports the verdict finding defendant guilty  ….  People v Graham, 104177, 3rd Dept 6-27-13

 

County Court’s Jurisdiction Over Crimes Committed in Other Counties, Among Many Other Issues, Explained

In a full-fledged opinion by Justice Egan, the Third Department affirmed the conviction of the director of facilities for the Schenectady City School District for arson, criminal possession of a weapon, criminal mischief and other offenses.  Among the issues (all resolved against the defendant) addressed in substantive discussions: (1) whether Schenectady County Court had jurisdiction over the counts of the indictment which were alleged to have occurred in other counties; (2) whether the jurisdictional facts were sufficiently alleged and proven; (3) severance of counts; (4) suppression of evidence found in a briefcase in an area for which a search warrant had been issued; (5) whether questions amounted to impermissible interrogation; (6) the admission of Molineux evidence; (7) whether testimony relating to non-testifying chemist’s findings in a report was a Crawford violation (a violation of the right of confrontation); (8) and the admissibility of demonstrative evidence.  With respect to the jurisdiction issue, the court wrote:

…[I]n order for prosecutorial jurisdiction to lie in Schenectady County for the extraterritorial crimes, defendant’s conduct must have “had, or was likely to have, a particular effect upon [the] [C]ounty . . . or part thereof, and [have been] performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein” ….To that end criminal conduct has a “particular effect” upon a county when the consequences thereof “have a materially harmful impact upon the governmental processes or community welfare” of that county (CPL 20.10 [4]) such that the defendant’s out-of-county conduct “expose[s] a large number of county residents to a specific harm”… .In this regard, the injury alleged must  be  “concrete and  identifiable” and of the type that can be demonstrated by proof… .  The People bear the burden of proving  that venue is proper by a preponderance of the evidence, and whether the subject county has geographic jurisdiction over each of the charged offenses presents a factual issue for the jury to resolve … .  People v Raucci, 103996, 3rd Dept 6-27-13

 

Grand Jury Proceeding Not Tainted by Excused Juror’s Statements About Having Arrested and Having Been Threatened by Defendant

The Third Department reversed County Court’s dismissal of indictments based upon a finding the integrity of the grand jury had been impaired.  A potential grand juror was excluded after stating he had arrested the defendant at least once and the defendant had threatened his family.  The Third Department wrote:

The prosecutor immediately excused this juror and instructed the remaining grand jurors to disregard and ignore the comment and to base their deliberations solely on the evidence provided by the sworn witnesses. While County Court found the prosecutor’s efforts in that regard to be inadequate, “the grand jury is presumed to have followed the prosecutor’s curative instructions, dispelling any prejudice to [] defendant”….  Furthermore, given the strength of the evidence supporting the indictments, the grand juror’s comment lacked the potential to prejudice the grand jury’s ultimate decision….   Accordingly, dismissal of the indictments was unwarranted.  People v Farley, 103105, 3rd Dept 6-27-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy