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Sentences for Underlying Felony and Bail Jumping Must Be Consecutive Absent Mitigating Factors that Bear Directly on the Manner the Crime Was Committed

In finding the sentencing court used the wrong “mitigating” factors to determine whether the sentence for bail jumping could run concurrently with the sentence for the underlying felony, the Third Department wrote:

Penal Law § 70.25 (2-c) restricts a court’s sentencing discretion when a person who is convicted of bail jumping in the second  degree  also is convicted of the underlying felony in connection with which he or she had been released on bail. Specifically, if indeterminate sentences are imposed upon both the bail jumping charge and the underlying felony, the bail jumping sentence must run consecutively to the other sentence unless the court “finds mitigating circumstances that bear directly upon the manner in which the crime was committed” (Penal Law § 70.25 [2-c]…).  Here, County Court sought to justify concurrent sentences based upon “the severe penalties, fines, restrictions and state prison sentence [defendant was] earning by [his] antisocial behavior of drinking and driving and failing to come to court, and because [he had pleaded] guilty . . . and waived appeal in another county.” However, these factors have no bearing upon the manner in which the crime was committed … and, therefore, do not support imposing concurrent sentences in this case.  People v Harrison, 105176, 3rd Dept 4-18-22

 

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Inmate Should Not Have Been Required to Document His Native American Ancestry In Order to Practice His Religion

In annulling a determination by the Central Office Review Committee (CORC) that the petitioner (an inmate) must document his Native American ancestry before he will be allowed to practice his religion, the Third Department wrote:

It has been recognized that correction officials may impose restrictions on the religious practices of inmates provided that such restrictions are reasonably related to legitimate penological interests … .Respondents candidly concede, and we agree, that CORC failed to articulate or otherwise identify any legitimate penological interest reasonably served by the documentation requirement. Consequently, we conclude that the determinations at issue are arbitrary, capricious and  without a rational basis… .  Matter of Santiago, 514317, 3rd Dept, 4-18-13

 

 

 

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Breath Test Results Suppressed Because Defendant Not Informed Her Attorney Had Appeared in the Case Prior to the Test

In a full-fledged opinion by Justice Leventhal, the Second Department affirmed the suppression of a chemical breath-test because the police did not inform the defendant her attorney had appeared in the case before the test was administered.  As Justice Leventhal described the “right to counsel” issue and holding:

This case calls upon us to address a matter of first impression involving the right to counsel under the New York Constitution (see NY Const, art I, § 6), where the defendant consented to a chemical breath test to determine her blood alcohol content (hereinafter BAC), but, prior to the commencement of the test, the police made no effort to inform the defendant that her attorney had appeared in the matter. … [W]e hold that where, as here, the police are aware that an attorney has appeared in a case before the chemical breath test begins, they must make reasonable efforts to inform the motorist of counsel’s appearance if such notification will not substantially interfere with the timely administration of the test. Since the People failed to establish that notifying the defendant of her attorney’s appearance would, in fact, have interfered with the timely administration of the chemical breath test, we conclude that the Supreme Court properly granted that branch of her omnibus motion which was to suppress the results of that test. People v Washington, 2013 NY Slip Op 02600, 2011-07259, Ind No 2510/10, 2nd Dept, 4-17-13

SUPPRESS

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Motion for SORA Downward Departure Requires Hearing​

The Second Department reversed the motion court because a motion for a downward departure (SORA) pursuant to Correction Law 168-o(2) requires a hearing:

By notice of motion dated September 21, 2010, the defendant moved pursuant to Correction Law § 168-o(2) for a downward modification of his risk level classification under the Sex Offender Registration Act (Correction Law article 6-C). The Supreme Court denied the defendant’s motion without holding a hearing. Because the requisite procedures set forth in Correction Law § 168-o were not followed, we reverse.  As the People correctly concede, the Supreme Court failed to conduct a hearing on the defendant’s motion, as it was required to do pursuant to Correction Law § 168-o(4) …. Accordingly, the matter must be remitted to the Supreme Court, Suffolk County, for a hearing and, thereafter, a new determination of the defendant’s motion. People v Runko, 2013 NY Slip Op 02555, 2012-07328, 2nd Dept, 4-17-13

 

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Court’s Explanation of Lien Law Presumption (Where Money Held In Trust by Contractor and Allegedly Misused Can Be Deemed Larceny) Was Determined to Impermissibly Switch the Burden of Proof to the Defendant​

In reversing a larceny conviction, the Second Department explained that allowing the jury to consider the Lien Law presumption (where use of funds held in trust for purposes other than those of the trust can constitute larceny) as mandatory, rather than permissive, shifted the burden of proof to the defendant:

Pursuant to Lien Law article 3-A, a contractor who receives funds under a contract for the improvement of real property must hold the funds as a trustee, and if the contractor applies trust funds for any purpose other than the purposes of the trust and fails to pay a trust claim within 31 days of the time it is due, he or she may be guilty of larceny (see Lien Law §§ 70, 71, 79-a[1][b]…). The trial court instructed the jury, in accordance with Lien Law § 79-a(3), that “[f]ailure of the trustee to keep books and records required by this section shall be presumptive evidence that the trustee has applied . . . trust funds . . . for purposes other than a purpose of the trust.” Like all statutory presumptions in New York, the presumption in Lien Law § 79-a(3) is permissive … . The trial court’s failure to instruct the jury that the presumption “was permissive, or to emphasize that, despite the presumption, the same burden of proof remained with the People, was bound to result in misleading the . . . jurors into believing that the presumption is conclusive and binding upon them'” …. Such a mandatory presumption is unconstitutional, as it relieves the People of their burden of proving every element of the crime and undermines the jury’s ” responsibility at trial, based on evidence adduced by the [People], to find the ultimate facts beyond a reasonable doubt'” .. . People v Cioffi, 2013 NY Slip Op 02588, 2012-00966, 2013-03689, Ind No 11-00174, 2nd Dept, 4-17-13

 

Trial Court’s Batson Ruling Re: Pretextual Reasons for Exclusion of White Jurors Upheld

In upholding the trial court’s ruling that the proffered reasons for the exclusion of certain white jurors were pretextual, the Second Department wrote:

In Batson v Kentucky (476 US 79, 94-98), the United States Supreme Court formulated a three-step test to assess whether peremptory challenges have been used to exclude potential jurors on the basis of race, gender, or other protected categories …. In step one, the moving party must make a prima facie case of purposeful discrimination by “showing that the facts and circumstances of the voir dire raise an inference that the other party excused one or more jurors for an impermissible reason” … . If the moving party makes a prima facie showing, the inquiry proceeds to step two, and the burden shifts to the adversary to provide a facially neutral explanation for the challenge. If the nonmoving party “offers facially neutral reasons supporting the challenge, the inference of discrimination is overcome” … . Once facially neutral reasons are provided, the inquiry proceeds to step three, and the burden shifts back to the moving party to prove purposeful discrimination, and ” the trial court must determine whether the proffered reasons are pretextual'” …, including whether the reasons apply to the facts of the case, and whether the reasons were applied to only a particular class of jurors and not to others … . Here, the trial court’s determination that the proffered reasons for challenging certain white jurors were pretextual is entitled to great deference on appeal and is supported by the record… . People v Carrington, 2013 NY Slip Op 02587, 2006-09951, Ind No 369/05, 2nd Dept 4-17-13

 

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Criteria for Downward Departure from SORA Presumptive Risk Level

The Second Department described the criteria for a downward departure from the SORA presumptive risk level as follows: 

A court has the discretion to downwardly depart from the presumptive risk level in a proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA) only after a defendant makes a twofold showing. 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 the applicability of that mitigating factor … . In the absence of that twofold showing, the court lacks discretion to depart from the presumptive risk level … .  People v Arroyo, 2013 NY Slip Op 02553, 2010-10108, 2nd Dept, 4-17-13

 

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In a Prohibition Proceeding Brought Under Article 78, Trial Judge’s Mistrial Order Deemed Improper, Retrial Precluded​

After a juror was discharged for misconduct, the People stated they did not want to go forward with the jury deliberations.  The defense, however, wanted to continue to verdict with the remaining 11 jurors.  The trial court ordered a mistrial.  The defendant brought an Article 78 proceeding seeking to prohibit a second trial on double jeopardy grounds.  The Second Department, after determining the four-month statute of limitations did not apply, granted the petition, finding the trial judge should not have ordered a mistrial over the defense objection:

Here, the People have not met their burden of demonstrating that the declaration of a mistrial was manifestly necessary. While it is undisputed that juror number 11 was grossly unqualified to continue serving, the court abused its discretion in declaring a mistrial without considering other alternatives. The defendant specifically indicated his desire to waive trial by a jury of 12 persons and proceed with the remaining 11 jurors, an option that has been endorsed by the Court of Appeals …. Under the circumstances presented, as urged by defense counsel, it would have been appropriate to poll the remainder of the jurors to ascertain whether they could render an impartial verdict …. Moreover, as the improper information imparted to the jurors did not significantly prejudice the People, the court should have considered whether a specific curative instruction could have clarified what constituted “evidence” and whether such an instruction could have cured the impropriety …. Accordingly, there is an insufficient basis in the record for the declaration of a mistrial, and thus retrial is precluded. Matter of Smith v Brown, 2013 NY Slip Op 02584, 2013-00751, 2nd Dept, 4-17-13

 

Hearing Required for Motion for Resentencing

The Second Department explained the hearing requirement of Criminal Procedure Law 440.46 (re: a motion for resentencing) as follows:

CPL 440.46(3), provides, in pertinent part, that “[t]he provisions of section twenty three of chapter seven hundred thirty eight of the laws of two thousand four shall govern the proceedings on and determination of a motion brought pursuant to this section.” Section 23 of chapter 738 of the Laws of 2004 states, in pertinent part: “The court shall offer an opportunity for a hearing and bring the applicant before it. The court may also conduct a hearing, if necessary, to determine . . . any controverted issue of fact relevant to the issue of sentencing.” The defendant’s presence is not required where the court determines as a matter of law that a defendant is not entitled to relief pursuant to CPL 440.46 …. However, here, the People conceded that the defendant met the statutory requirements for relief pursuant to CPL 440.46, and the question before the court was whether substantial justice dictated that the motion should be denied. Thus, the defendant is entitled to appear before the court and to be given an opportunity to be heard .. . Since the defendant was not brought before the court, and there is no indication that he knowingly, intentionally, and voluntarily relinquished that right …, the order appealed from must be reversed, and the matter remitted to the County Court, Suffolk County, for a new determination of the defendant’s motion, to be made after affording him an opportunity to appear before the court, and, if necessary, conducting a hearing … . People v Allen, 2013 NY slip Op 02586, 2011-11680, Ind No 1087/98, 2nd Dept 4-17-13

 

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Conduct in Prison Justified Upward Departure (SORA)

The Third Department upheld the SORA court’s upward departure from the SORA guidelines based upon the defendant’s exhibitionist sexual conduct in prison.  The Third Department wrote:

Even if, under factor 13, defendant had been assessed the full 20 points for unsatisfactory conduct while confined “with sexual misconduct” (for a total of 55 points, still a presumptive level I), as he urges should have occurred instead of an upward departure, this factor still would not adequately take into consideration the public nature of this conduct and the use of children’s images  to facilitate his arousal. People v Walker, 513776, 3rd Dept, 4-11-13

 

 

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