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PROMOTING PROSTITUTION CONVICTIONS REVERSED BECAUSE THE PROMOTING PROSTITUTION COUNTS ARE INCLUSORY CONCURRENT COUNTS OF SEX TRAFFICKING (FOURTH DEPT). ​

The Fourth Department dismissed the “promoting prostitution” counts of the indictment as inclusory concurrent counts of sex trafficking:

We note … that count 15 of the indictment, charging defendant with promoting prostitution in the second degree (Penal Law § 230.30 [1]), is an inclusory concurrent count of sex trafficking as charged in counts 12, 13, and 14 (§ 230.34 [5] [a], [c], [h]; see generally CPL 1.20 [37]; 300.30 [4]). Similarly, count 24 of the indictment, charging defendant with promoting prostitution in the second degree, is an inclusory concurrent count of sex trafficking as charged in counts 21, 22, and 23. We therefore conclude that counts 15 and 24 must be dismissed as a matter of law because defendant was found guilty of counts 12 through 14 and 21 through 23, and “a verdict of guilty upon the greater [counts] is deemed a dismissal of every lesser [inclusory concurrent count]” … . People v Spencer, 2024 NY Slip Op 01448, Fourth Dept 3-15-25

Practice Point: If a defendant is convicted of sex trafficking and promoting prostitution, the promoting prostitution convictions must be reversed as inclusory concurrent counts of sex trafficking.

 

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BURGLARY SECOND DEGREE AS A SEXUALLY MOTIVATED FELONY IS NOT A REGISTRABLE OFFENSE UNDER SORA; DEFENDANT’S SEX OFFENDER ADJUDICATION VACATED (FIRST DEPT).

The First Department, vacating defendant’s sex offender adjudication, noted that burglary second degree as a sexually motivated felony is not a registrable sex offense on SORA:

As the People concede, burglary in the second degree as a sexually motivated felony is not a registrable sex offense under Sora (see People v Conyers, 212 AD3d 417, 418 [1st Dept 2023], lv denied 39 NY3d 1110 [2023]; People v Simmons, 203 AD3d 106, 111-112 [1st Dept 2022], lv denied 38 NY3d 1035 [2022]). We therefore modify the judgment as indicated. People v Burgos, 2024 NY Slip Op 01255, First Dept 3-7-24

Practice Point: Burglary second as a sexually motivated felony is not a registrable offense under SORA.

 

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FAMILY COURT DID NOT HAVE SUBJECT MATTER JURISDICTION IN THIS FAMILY OFFENSE CASE BECAUSE THE APPELLANT DID NOT HAVE AN “INTIMATE RELATIONSHIP” WITH THE SUBJECT CHILDREN WITHIN THE MEANING OF FAMILY COURT ACT 812 (SECOND DEPT).

The Second Department, reversing Family Court, determined the court did not have subject matter jurisdiction in this family offense case because the appellant did not have an “intimate relationship” with the subject children within the meaning of Family Court Act 812:

The “Family Court is a court of limited jurisdiction, constrained to exercise only those powers granted to it by the State Constitution or by statute” … . Pursuant to Family Court Act § 812(1), the Family Court’s jurisdiction in family offense proceedings is limited to certain prescribed acts that occur “between spouses or former spouses, or between parent and child or between members of the same family or household” … . “[M]embers of the same family or household” include, among others, “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … . “Expressly excluded from the ambit of ‘intimate relationship’ are ‘casual acquaintance[s]’ and ‘ordinary fraternization between two individuals in business or social contexts'” … . “Beyond those delineated exclusions, what qualifies as an intimate relationship within the meaning of Family Court Act § 812(1)(e) is determined on a case-by-case basis, and the factors a court may consider include ‘the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship'” … .

Here, the appellant and the subject children have no direct relationship, and the appellant was only connected to the subject children through her children, who were the half-siblings of three of the subject children. The appellant and the subject children do not reside together and there was no evidence that they have any direct interaction with each other. Accordingly, there is no “intimate relationship” between the appellant and the subject children within the meaning of Family Court Act § 812(1)(e) … . Matter of Watson v Brown, 2024 NY Slip Op 01191, Second Dept 3-6-24

Practice Point: In order for Family Court to have subject matter jurisdiction over a family offense proceeding, the respondent must have an “intimate relationship” with the victims within the meaning of Family Court Act 812. The criteria for an “intimate relationship,” which was absent here, are explained in some detail.

 

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THE RECORD WAS NOT SUFFICIENT TO CONCLUDE APPELLANT IN THIS FAMILY OFFENSE PROCEEDING VALIDLY WAIVED HIS RIGHT TO COUNSEL; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Family Court in this family offense proceeding, determined the record was insufficient to conclude the appellant had validly waived his right to counsel:

A party in a Family Court Act article 8 proceeding has the right to be represented by counsel (see Family Ct Act § 262[a][ii] …). That party, however, may waive the right to counsel, provided that the waiver is knowing, voluntary, and intelligent … . To ensure a valid waiver, the court must conduct a “searching inquiry” of that party … . While there is no rigid formula to be followed in such an inquiry, and the approach is a flexible one … , the record must demonstrate that the party “‘was aware of the dangers and disadvantages of proceeding without counsel'” … .

Here, the record is inadequate to demonstrate that the appellant validly waived his right to counsel … . The deprivation of a party’s right to counsel guaranteed by Family Court Act § 262 requires reversal without regard to the merits of the unrepresented party’s position … . Matter of Mendez-Emmanuel v Emmanuel, 2024 NY Slip Op 01180, Second Dept 3-6-24

Practice Point: In a family offense proceeding the respondent has a right to counsel. If the record doesn’t demonstrate a valid waiver of the right to counsel, a new hearing will be ordered.

 

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THE SORA RISK-LEVEL ASSESSMENT PROCEEDINGS MUST BE CONDUCTED 30 DAYS BEFORE DEFENDANT’S RELEASE FROM CONFINEMENT, REGARDLESS WHETHER THE STATE IS CONSIDERING OR IS IN THE PROCESS OF INSTITUTING CIVIL COMMITMENT PROCEEDINGS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Curran, over a comprehensive two-judge dissenting opinion by Judge Wilson, determined that the sex offender risk-level assessment proceedings must be held 30 days prior to a defendant’s release from confinement, regardless whether the state is considering instituting, or already has instituted, proceedings to civilly commit the defendant pursuant to the Sex Offender Management and Treatment Act (SORA):

The Sex Offender Registration Act (SORA) (Correction Law § 168 et seq.) provides that a sex offender “shall” be classified into one of three risk level categories “[30] days prior to discharge, parole or release” (Correction Law § 168-n [2]). The central question presented by these appeals is whether, for purposes of SORA, this deadline is properly measured from the date an offender is released from confinement by the Department of Corrections and Community Supervision (DOCCS), despite pending or contemplated proceedings to civilly commit the offender under the Sex Offender Management and Treatment Act (SOMTA) (Mental Hygiene Law § 10.01 et seq.). We hold that, under a plain reading of SORA, the 30-day deadline for conducting a risk level classification hearing must be measured from an offender’s release by DOCCS upon the completion of a prison sentence, irrespective of whether the state is considering instituting, or has already instituted, proceedings under SOMTA. We further hold that offenders are not denied due process by having a SORA hearing at a time when they may be civilly committed under SOMTA. People v Boone, 2024 NY Slip Op 00928, CtApp 2-22-24

Practice Point: SORA risk-level-assessment proceedings are to be held 30 days prior to defendant’s release from confinement and cannot be delayed because the state is considering or has instituted proceedings for civil commitment.

 

ALTHOUGH DEFENDANT WAS CHARGED WITH BURGLARY AS A SEXUALLY MOTIVATED FELONY, WHICH REQUIRES PROOF THE CRIME WAS MOTIVATED BY SEXUAL GRATIFICATION, THE PEOPLE WERE ENTITLED TO A JURY INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF BURGLARY SECOND, WHICH NEED NOT BE MOTIVATED BY SEXUAL GRATIFICATION (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the People were entitled to a jury instruction on the lesser included offense (burglary second degree) where the indictment charged burglary second degree as a sexually motivated offense. Defense counsel objected arguing defendant was not given notice of the need to defend against a burglary charge which did not include the “sexual gratification” element. The Appellate Division agreed with defense counsel’s argument, but the Court of Appeals rejected it, noting that a burglary could be motivated by “sexual harassment” but not by “sexual gratification:”

Defendant confronted, assaulted, and groped several women outside of a New York University dormitory, including grabbing a student by the throat and sexually assaulting her. The students managed to run from defendant and into their dormitory. Shortly thereafter, defendant entered the dormitory and had an altercation with the building’s security guard who tried to block his way, but defendant pushed through the turnstiles that separated the dormitory’s public lobby from the elevator bank that led to the private residences. The security guard was able to return defendant to the lobby, where defendant continued to harass students until police arrived and arrested him. * * *

… [C]harging burglary as a sexually motivated felony does not … limit the People to proving that a defendant intended to commit what is traditionally considered a “sex crime” when he or she entered the dwelling. … [T]he People must prove that, regardless of the crime the defendant intended to commit inside the dwelling, the burglary was motivated in substantial part by personal sexual gratification. For example, the People may charge a sexually motivated burglary based on a theory that the defendant intended to commit larceny once inside of a dwelling, but still maintain the motivation for the burglary was sexual gratification.

…[T]he inverse is also possible: the People may argue that the intended crime was obviously sexual in nature, but the jury may find that, although the defendant entered or remained in the dwelling intending to commit that crime, the motivation was something other than sexual gratification. In that situation … the proof may be insufficient to convict defendant of the sexually motivated felony but sufficient as to the lesser included offense of burglary in the second degree. People v Seignious, 2024 NY Slip Op 00927, CtApp 2-22-24

Practice Point: Although it may be possible for defense counsel to ask for a more limited jury instruction, here the People, who had charged defendant with burglary second degree as a sexually motivated felony (with a sexual-gratification element), were entitled to a jury instruction on the the lesser included offense of burglary second degree (with no sexual-gratification element).

 

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EVEN WHERE IT IS POSSIBLE DEFENDANT LACKS THE CAPACITY TO UNDERSTAND THE SORA RISK-LEVEL PROCEEDINGS, THE RISK-LEVEL ASSESSMENT CAN BE MADE WITHOUT AN INDEPENDANT ASSESSMENT OF DEFENDANT’S MENTAL CAPACITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannaturo, over a two-judge dissenting opinion by Judge Rivera, and a dissent by Judge Halligan, determined the SORA risk-level proceedings can proceed without an assessment of the defendant’s mental health, even where, as here, there is a possibility defendant make lack the capacity to fully comprehend the risk-level proceedings:

The Sex Offender Registration Act (SORA) requires that every person convicted of a sex offense be given a risk-level classification corresponding to their assessed likelihood of recidivism and potential danger to the community. This risk level, in turn, determines the scope of information available to the public concerning the offender. To protect against erroneous classification, judicial determination of an offender’s risk level can occur only after the offender has been provided notice, counsel, disclosure of relevant information, and an opportunity to object and present evidence at a hearing, at which the People must prove the appropriateness of the classification by clear and convincing evidence. An offender’s risk level is also subject to re-evaluation on an annual basis.

The primary question on this appeal is whether due process precludes a court from determining a sex offender’s risk level when there is a possibility that the offender—although represented by counsel and provided the other protections listed above—may lack capacity to fully comprehend risk-level assessment proceedings. We hold that the many safeguards already provided under SORA minimize the risk of inaccurate risk-level classification and adequately balance the competing private and State interests in these civil proceedings. People v Watts, 2024 NY Slip Op 00926, CtApp 2-22-24

Practice Point: The safeguards in place for SORA-risk-level-assessment proceedings are sufficient to protect the rights of a defendant who may lack the capacity to comprehend the proceedings. There is no need for an independent assessment of defendant’s mental capacity before making the risk-level assessment.

 

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PETITIONER’S FOIL REQUEST FOR DOCUMENTS AND EVIDENCE RELATING TO HIS MURDER CONVICTION SHOULD NOT HAVE BEEN DENIED ON THE GROUND RESPONDING TO THE REQUEST WOULD INTERFERE WITH PETITIONER’S HABEAS CORPUS PROCEEDINGS IN FEDERAL COURT; THE FEDERAL COURT HAD ISSUED A STAY-IN-ABEYANCE ORDER TO ALLOW PETITIONER TO EXHAUST HIS STATE REMEDIES (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wan, addressing a matter of first impression, determined petitioner’s FOIL request for documents and evidence related to his murder prosecution should not have been denied on the ground that granting the request would interfere with petitioner’s pending habeas corpus proceedings in federal court. The federal court issued a stay-and-abeyance order in the habeas corpus action to allow petitioner to exhaust his state remedies. Because the stay-and-abeyance order is in effect, the Second Department held that responding to the FOIL request would not interfere with the habeas corpus proceedings and the petition to compel production of the requested records should have been granted:

On July 12, 2020, the petitioner made a request to the Kings County District Attorney (hereinafter the District Attorney), pursuant to the Freedom of Information Law …, for “any and all material” related to the matter of People v Sarkodie, Indictment No. 2544/13, “including, but not limited to, any and all recordings, whether video or audio, DD-5’s, medical reports, witness statements, police memo books, crime scene investigative reports, evidence vouchers, and ballistics reports.” … On December 13, 2020, the petitioner’s counsel filed a second habeas corpus petition in the EDNY, which was consolidated with the petitioner’s pro se habeas petition In the federal habeas proceeding, the petitioner alleged both exhausted and unexhausted state law claims.

By order dated December 23, 2020 (hereinafter the stay-and-abeyance order), the EDNY acknowledged that the federal habeas proceeding “contains unexhausted claims that are not plainly meritless.” Accordingly, the EDNY “f[ound] a stay to be appropriate and h[eld] the Petition [*2]in abeyance” to allow the petitioner to “exhaust his unexhausted claims and perfect the petition … .  * * *

… [T]he District Attorney failed to establish that the records sought were exempt from disclosure pursuant to Public Officers Law § 87(2)(e)(i), since the District Attorney failed to establish that disclosure would interfere with the pending federal habeas proceeding … . Matter of Sarkodie v Kings County Dist. Attorney, 2024 NY Slip Op 00908, Second Dept 2-21-24

Practice Point: A FOIL request for documents and evidence related to defendant’s murder conviction should not have been denied on the ground that responding to the request would interfere with petitioner’s habeas corpus proceedings in federal court  The federal court had issued a stay-and-abeyance order to allow petitioner to exhaust his state remedies. Therefore, the petition to compel production of the sought documents and evidence should have been granted.

 

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WHERE MODIFICATION OF A SECURING ORDER (RELEASE ON BAIL) IS NOT BASED UPON RISK OF FLIGHT, BUT RATHER IS BASED UPON THE COMMISSION OF FELONIES WHILE RELEASED ON BAIL, A FULL EVIDENTIARY HEARING MUST BE HELD, OR, IN THE ALTERNATIVE, THE PEOPLE CAN SUBMIT TRANSCRIPTS OF GRAND JURY TESTIMONY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, clarified the appropriate procedures for modifying a securing order when a defendant who has been released on bail is alleged to have committed other crimes:

While out on bail after his arrest for a felony, defendant was arrested three times for additional violent felonies. The court modified his securing order by remanding defendant. This appeal concerns the overlap between statutory provisions governing modifications to securing orders under these circumstances. We now hold that, where otherwise applicable, courts may modify a securing order when a defendant is charged with additional class A or violent felonies pursuant to either CPL 530.60 (1) or 530.60 (2) (a), but that, where the Court proceeds under CPL 530.60 (1), the record must reflect that the decision was based on the risk of flight factors and criteria in CPL 510.30. Where, as here, the record does not demonstrate that the court’s decision was based on defendant’s increased risk of flight, it will be assumed that the court proceeded pursuant to CPL 530.60 (2) (a) and a failure to follow the procedural requirements of CPL 530.60 (2) (c) will be considered error. * * *

Where a court modifies a securing order on [a]reasonable cause finding, and so determines that a defendant poses a danger to the community, the court must ensure that the procedural requirements of subdivision (2) (c) are followed (see e.g. People ex rel. Ryan v Warden, 113 AD2d 116, 117 [1st Dept 1985] [subdivision (2) (c) hearing required where “(p)etitioner’s remand without bail was, concededly, based solely upon his arrest for a new charge as provided for in CPL 530.60 (2) (a) and not on any finding that there was a likelihood he might not return to court (under) CPL 530.60 (1)”]). These prerequisites—a hearing with relevant, admissible evidence and the cross-examination of witnesses, or the submission of grand jury testimony transcripts—are designed to provide the court with a basis for a reasonable cause determination and to ensure that a defendant receives due process. While the procedural prerequisites provide for a more formal hearing with witness testimony, they also provide the People with the option, as they did upon remittal here, to submit transcripts of grand jury testimony—a streamlined approach that may provide the support needed for a reasonable cause finding. People ex rel. Rankin v Brann, 2024 NY Slip Op 00850, CtApp 2-20-24

Practice Point: Before bail is revoked because the defendant is alleged to have committed felonies while released on bail, a full evidentiary hearing must be held to flesh out the alleged crimes, or the People may submit transcripts of grand jury testimony. The mere allegation that defendant committed additional crimes while on bail is not enough.

 

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THE JURY NOTE REQUESTED THE “DEFINITIONS” OF THE CHARGED OFFENSES; DEFENSE COUNSEL ASKED THE JUDGE TO ALSO REREAD THE JUSTIFICATION INSTRUCTION IN THIS MURDER CASE; THE JUDGE REFUSED; BECAUSE THE JURY’S NOTE WAS SPECIFIC AND DID NOT REQUEST THE JUSTIFICATION INSTRUCTION, THE JUDGE PROPERLY DENIED DEFENSE COUNSEL’S REQUEST (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, with a concurrence, affirming defendant’s convictions in this murder, attempted murder and assault case, determined the judge did not err by denying defense counsel’s request to reread the justification jury instruction after the jury sent out a note asking for the definitions of the charged offenses. The jury asked for “[a]ll definitions discussed: Murder II, Manslaughter I, Depraved Murder II, etc.,” Because the request was deemed specific the justification instruction was not reread because the jury didn’t request it:

… “[T]he form of the jury’s” note indicated a request that the jury be recharged on the elements of the crimes … . The jury note asked for “all definitions” contained in the charges: the jury did not simply ask for “all definitions” to be read back but instead chose to limit which “definitions” it sought by providing an exemplary list containing the first three of the ten criminal offenses on which the trial court had originally instructed the jury and ending the list with “etc.” The usage of “etc.” in this context corroborates this interpretation of the note because et cetera at the end of a list signals “others especially of the same kind” … . That the jury did not seek further instruction or clarification after the recharge also supports our conclusion that the trial court correctly interpreted the jury note and responded meaningfully and with the complete information sought … . People v Aguilar, 2024 NY Slip Op 00849, CtApp 2-20-24

Practice Point: A judge must respond “meaningfully” to a jury note. Here the note requested definitions of the charged crimes. The judge properly denied defense counsel’s request to reread the justification instruction because the jury’s not was specific and did not mention justification.

 

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