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SORA Applies to Out of State Sex Offense

In affirming Supreme Court’s determination that petitioner (who pled nolo contendre to a sex offense in Florida and was registered as a sex offender in Florida) must register as a sex offender in New York (upon moving to New York), the Second Department wrote:

SORA provides that any “sex offender” must comply with its provisions (see Correction Law § 168-f). A “sex offender” is defined as “any person who is convicted” of a “sex offense” (Correction Law § 168-a[1], [2]). The definition of a “sex offense” with respect to an offense committed in another jurisdiction is “a conviction of [i] an offense in any other jurisdiction which includes all of the essential elements of any such crime” that constitutes a “sex offense” under SORA (Correction Law [*2]§ 168-a[2][d][i]). The statute also provides that a “sex offense” includes a “conviction of . . . [ii] a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred” (Correction Law § 168-a[2][d][ii]). Matter of Kasckarow v Board of Examiners of Sex Offenders of State of NY, 2013 Slip Op 03485, 2nd Dept, 5-15-13

 

 

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Arrest Based on Out of State Warrant Not Authorized​

In reversing the denial of suppression, reversing the conviction and dismissing the indictment, the Second Department explained that the arrest based on out of state warrant (for a violation of probation) was not authorized.  A local criminal court warrant was required:

The detective had no authority to arrest the defendant based on his information that there was an out-of-state violation of probation warrant, as the detective did not obtain a warrant from a local criminal court pursuant to CPL 570.32. While CPL 570.34 provides that a police officer may also arrest a person in this State without a warrant “upon reasonable information that the accused stands charged in the courts of another state with a crime punishable by death or imprisonment for a term exceeding one year”…, a violation of probation is not a “crime” … . People v Miranda-Hernandez, 2013 NY Slip Op 03346, 2nd Dept, 5-8-13

STREET STOPS, SUPPRESS

Trial Judge’s Violation of CPL 310.30 in Responding to Jury Note Constituted Reversible “Mode of Proceedings” Error

In reversing a conviction because the trial judge did not handle a jury note properly, in violation of CPL 310.30, the Second Department explained:

…[T]he court received a substantive jury note but did not set that note forth on the record and allow counsel a full opportunity to suggest an appropriate response. …[T]he court failed to fulfill its core responsibilities under CPL 310.30, thereby committing a mode of proceedings error that is exempt from the preservation requirements and requires reversal … . Accordingly, the judgment must be reversed, and a new trial ordered … . People v Howell, 2013 NY Slip Op 03342, 2nd Dept, 5-8-13

 

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Criteria for Downward Departure (SORA)​

The Second Department explained the two factors a defendant must demonstrate for a downward departure in a SORA proceeding:

First, a defendant must 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”…. Second, a defendant must prove by a preponderance of the evidence the facts necessary to support that mitigating factor …. In the absence of that twofold showing, the court lacks discretion to depart from the presumptive risk level …. People v Henry, 2013 NY Slip Op 03309, 2nd Dept, 5-8-13

 

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Sexual Assault by Son of Homeowners Not an Insured “Occurrence” Under Homeowners’ Insurance Policy

The Second Department determined a sexual assault allegedly perpetrated by the son of the homeowners was not an insured “occurrence” within the meaning of the homeowners’ insurance policy:

Here, Joseph M. allegedly was insured under a homeowner’s insurance policy issued by the plaintiff to his parents, which provided personal liability coverage for claims made against an insured for damages because of bodily injury caused by an “occurrence.” The policy defined the term “occurrence” as “an accident . . . which result[ed] in . . . bodily injury.”   The complaint in the underlying action alleged that the plaintiff in that action sustained bodily injury due to a sexual assault perpetrated by Joseph M. Since the bodily injuries allegedly sustained by the plaintiff in the underlying action were inherent in the conduct that Joseph M. allegedly engaged in, the alleged sexual assault cannot be construed as an accident within the definition of “occurrence” for which the plaintiff’s policy affords coverage … . State Farm Fire and Cas Co v Joseph M, 2013 NY Slip Op 03318, 2nd Dept, 5-8-13

 

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Defense Attorney’s Conflict of Interest Amounted to Ineffective Assistance

The Court of Appeals reversed the Appellate Division and granted defendant’s writ of coram nobis finding a conflict of interest on the part of defendant’s counsel, of which defendant was never made aware, amounted ineffective assistance.  Defendant’s appellate counsel had represented a co-defendant, Martin, who testified against the defendant at his trial.  During sentencing of Martin, counsel argued for leniency based upon his testifying against the defendant.  In appealing defendant’s conviction, counsel argued Martin was a liar and his testimony should be ignored.  The Court of Appeals wrote:

It is undisputed that appellate counsel represented defendant and his codefendant simultaneously, that appellate counsel argued at Martin’s sentencing hearing for leniency based on Martin’s trial testimony adverse to the defendant, and that defendant neither knew nor had the opportunity to waive any conflict arising from appellate counsel’s representation of defendant and Martin. Under these circumstances, an actual unwaived conflict existed.

An attorney may not simultaneously represent a criminal defendant and a codefendant or prosecution witness whose interests actually conflict unless the conflict is validly waived …. Simultaneous representation of two clients with conflicting interests means the lawyer “cannot give either client undivided loyalty” …. Counsel has the duty to inform the client and the court so that the court may ascertain the nature of the conflict and give the client an opportunity to waive it ….  People v Prescott, No 80, CtApp, 5-7-13

 

Superior Court Information Not Jurisdictionally Defective Because Different Victims Named

In reversing the Appellate Division, the Court of Appeals determined a Superior Court Information (SCI) was not jurisdictionally defective because it named victims not identified in the felony complaint.  The defendant-respondent was charged with grand larceny based on his use of two persons’ identities to procure mortgages to purchase two properties.  Those “identity theft” victims were named in the felony complaint. The victims named in the SCI, however, were the two banks which issued the mortgages. The Appellate Division held the SCI was jurisdictionally defective because it didn’t name the same victims as the felony complaint. The Court of Appeals, in an opinion by Judge Lippman, held the defect was not jurisdictional because it was clear the felony complaint and SCI charged the same offenses:

Here, the offense to which defendant pleaded guilty is the same offense for which he was charged in the felony complaint, and adding the names of the victims in the SCI did not render the offense a different one. Though the felony complaint did not name the banks that provided the loans, the complaint identified the specific properties in Queens and Brooklyn on which defendant took out mortgages in Hector Sandoval’s name. … There was nothing inappropriate about adding the names of the victims as it did not change the offense alleged. … [T]here was no factual discrepancy between the felony complaint and the second SCI; the crimes were simply portrayed from a different perspective.  People v Milton, No 75, CtApp, 5-7-13

 

Pre-Deliberations Note from Juror Did Not Raise Question Whether Juror Was “Grossly Unqualified;” No Hearing Necessary

The Court of Appeals, over a substantial dissent by Judge Lippman, determined that a note from a juror to the judge, prior to deliberations, did not raise the question whether the juror was “grossly unqualified” and therefore did not trigger the need for an in camera interview of the juror pursuant to People v Buford, 69 NY2d 290.  The note used the term “we” and raised the inference the jurors were engaging in premature deliberations about the need for additional evidence.  The Court of Appeals wrote:

Our intention in Buford was to create a framework by which trial courts could evaluate sworn jurors who, for some reason during the trial, may “‘possess[] a state of mind which would prevent the rendering of an impartial verdict'” …. Such scenarios include, but are not limited to, a juror’s bias against a particular race …, a juror’s intimate relationship with a prosecution witness …, or a juror’s conversation with a member of the defendant’s family seeking information about the defendant’s background ….

Here, there is no indication from the note’s use of the word “we” that the note-writing juror’s impartiality was in doubt or that the juror had committed any misconduct. The note’s contents were indicative of two possibilities: that there had been premature deliberations and/or the jury was requesting additional evidence after the parties had rested and the evidence had closed. …People v Mejias and Rodriguez, Nos 67, 68, CtApp 5-7-13

 

 

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Daily Incidents of Molestation, Spanning Years, Constituted “Separate Occurrences” Triggering a Deductible for Each Policy-Period

The main issue in this case was whether nearly daily incidents of sexual molestation of a minor by a priest in the Roman Catholic Diocese of Brooklyn, spanning six years, should be considered a single “occurrence” or separate “occurrences” within the meaning of the relevant insurance policies.  If considered separate occurrences, then the deductible for each policy-period in which each occurrence was deemed to have taken place would apply. If considered a single occurrence, then only one deductible would apply for all the policy-periods.  The Court of Appeals, in an opinion by Judge Rivera, determined the on-going sexual molestation should be considered separate occurrences for each policy-period, triggering multiple deductibles.  The Court of Appeals also found that the raising of the “separate occurrences” argument by the insurance company was not a disclaimer and therefore was not subject to the timeliness requirement for disclaimers in the Insurance Law. There was a concurring opinion by Judge Smith and a “concurring in part and dissenting in part” opinion by Judge Graffeo. Roman Catholic Diocese of Brooklyn v National Union Fire Insurance Company …, No 69, CtApp 5-7-13

 

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Motion to Set Aside Convictions Based On Newly Discovered Evidence Should Have Been Granted

The Fourth Department determined the trial court should have set aside defendant’s criminal contempt convictions pursuant to Criminal Procedure Law 330.30(3) based upon newly discovered evidence (phone records calling into question complainant’s trial testimony).  The Fourth Department wrote:

To set aside a verdict pursuant to CPL 330.30 (3), a defendant must prove 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 Madison, KA 11-00313, 389, 4th Dept, 5-3-13

 

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