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THE DEFENSE CHALLENGE TO A JUROR WHO EXPRESSED SERIOUS DOUBTS ABOUT BEING ABLE SERVE SHOULD HAVE BEEN GRANTED, DESPITE HER ULTIMATE STATEMENT SHE COULD DO WHAT IS NECESSARY TO SERVE; THE NEW CPL ARTICLE 245 DISCOVERY STATUTES IMPOSE NEW BURDENS ON THE PEOPLE ENCOMPASSING ROSARIO AND BRADY MATERIAL AND EXTENDING TO DOCUMENTS WHICH ARE NOT IN THE PEOPLE’S POSSESSION, EVEN WHERE THE DEFENSE CAN ACCESS THOSE DOCUMENTS (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction and ordering a new trial, offered important, substantial discussions of (1) how to handle a juror who expresses doubt about the ability to serve on the jury, and (2) the new, much broader and far-reaching disclosure requirements imposed upon the People by the CPL Article 245. The juror expressed doubt about her ability to serve because of her family obligations, her indecisiveness and her inability to follow the orders and instructions of the court. Ultimately when asked if she thought she could do what is necessary to be a juror, she said “yes.” The Fourth Department held the defense challenge to the juror should not have been denied. On the CPL Article 245 issue, the Fourth Department explained that the statute goes far beyond the old, pre-statute, criteria for turning over Rosario and Brady material, to include collecting and turning over discovery from agencies outside the prosecutor’s office, even if the defendant could gain access to those that discovery him or herself: The Fourth Department held the prosecutor committed numerous violations of CPL Article 245 and left it to the judge in the next trial to impose sanctions:

… [T]he prospective juror never stated, unequivocally or otherwise, that she would follow the court’s instructions and apply the law to the facts. Nor did she state that her child care concerns had been alleviated such that she could devote her undivided attention to the trial.

Just as a “general statement of impartiality that does not explicitly address the specific cause of the preexisting bias is not sufficient” … , a general statement from a prospective juror that they can do what it takes to be a juror is not sufficient to rehabilitate the prospective juror where, as here, the prospective juror had previously offered specific reasons for being unable to serve impartially. * * *

Although transcripts that are not in the People’s possession and control are not subject to Brady and Rosario disclosure requirements … , that fact is of no moment for purposes of CPL 245.20. Even where documents are “beyond the prosecutor’s control under Rosario and constructive possession under CPL 245.20 (2), the presumption of openness, … the duty to maintain the flow of information … , the continuing duty to disclose … , and, perhaps most importantly, the goals of article 245 require that when the prosecutor becomes aware [after making the requisite reasonable inquiries] that an agency outside their control holds information that relates to the subject matter of the case, best practice dictates that the People take steps . . . to obtain those records notwithstanding the fact [that] the information may be available to the defendant by equivalent process” … . People v Heverly, 2024 NY Slip Op 00524, Fourth Dept 2-2-24

Practice Point; A juror who expresses serious doubts about being able to serve, doubts which are not addressed by further questioning, should be excluded, even if the juror ultimately states he or she can do what is necessary to serve.

Practice Point: CPL Article 245 has drastically expanded the burden on the People to timely turn over discovery, including Rosario and Brady material and documents which are not in the People’s possession, even where the defense also has access to those documents. The is an important discussion of the new criminal discovery rules which should be required reading for defense counsel, prosecutors and judges.

 

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AN OFFICER’S OBSERVATION OF DEFENDANT’S CAR FOLLOWING ANOTHER CAR TOO CLOSELY (A TRAFFIC INFRACTION) PROVIDED PROBABLE CAUSE FOR A TRAFFIC STOP, EVEN IF THERE WERE OTHER MOTIVATIONS FOR THE STOP (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant’s motion to suppress in this traffic stop case should not have been granted. The traffic stop was based upon the deputy sheriff’s observation of defendant’s car less than one car length from the car in front while both cars were going 65 mph, which constitutes a traffic infraction (following too closely). The Fourth Department noted that a traffic infraction provides probable cause for traffic stop, even if the officer has another motive for the stop (apparently the case here):

The deputy, having personally observed defendant violate Vehicle and Traffic Law § 1129 (a), thus had probable cause to stop defendant’s vehicle … .

… [T]o the extent the court’s decision also found the stop unlawful on the basis that it was pretextual, that was error. It is well settled that ” ‘where a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation, a stop does not violate [the state or federal constitutions, and] . . . neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant’ ” … . In light of the deputy having personally observed defendant commit a traffic violation, the stop was properly based upon probable cause, and the deputy’s other motivations in stopping the vehicle, if any, were irrelevant to determining whether the stop was lawful … . People v Williams, 2024 NY Slip Op 00581, Fourth Dept 2-2-24

Practice Point: If a police officer observes a driver commit a traffic infraction (here following too closely), the officer has probable cause to stop the car, even if the officer has other motivations for the stop.

 

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ALLEGATIONS THAT RESPONDENT INSTALLED SOFTWARE ON PETITIONER’S COMPUTER ALLOWING RESPONDENT TO CONTROL THE COMPUTER REMOTELY, AND ALLEGATIONS RESPONDENT MADE PHONE CALLS TO PETITIONER INTENDED TO BE THREATENING, SUFFICIENTLY ALLEGED THE FAMILY OFFENSES OF HARASSMENT AND STALKING (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the petition sufficiently alleged harassment and stalking family offeses based upon allegations respondent, petitioner’s estranged husband, installed software on petitioner’s computer allowing him to control the computer remotely, and made phone calls to petitioner intended to be threatening:

… [P]etitioner alleged that respondent installed spyware on her Apple laptop computer and that petitioner first noticed in mid-April 2021 that her username had been changed to “Creep” and that all documents related to the divorce proceedings between the parties had been deleted. Petitioner further alleged that, after taking the laptop to a computer store to have the laptop reset, she noticed about a week later that the laptop began showing the matrimonial files, which then disappeared again. Petitioner alleged that respondent was again controlling her laptop remotely. Petitioner also alleged a series of other related incidents. For example, she noticed in late April 2021 that her iPhone password had changed; she received a “spoofed” text message in early May 2021 and she discovered about a day later that respondent had accessed her Dropbox account; and she received another alarming or annoying text message in mid-May 2021 that referred to respondent’s pet name for her. Petitioner thus alleged more than an isolated incident and, upon ” ‘[l]iberally construing the allegations of the [second] family offense petition and giving it the benefit of every possible favorable inference,’ ” we conclude that the second petition alleges acts that, if committed by respondent, would constitute the family offense of harassment in the second degree … . Matter of Dhir v Winslow, 2024 NY Slip Op 00531, Fourth Dept 2-2-24

Practice Point: Remotely controlling petitioner’s computer and making phone calls intended to be threatening may constitute the family offenses of harassment and stalking.

 

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THE JUDGE’S FAILURE TO READ THE NOTE FROM THE JURY VERBATIM WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL OF DEFENDANT’S MURDER CONVICTION (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder conviction, determined the judge committed a mode of proceedings error by paraphrasing the note from the jury instead of reading it verbatim:

The jury note … stated … “[w]e, the Jury, request: to hear the read-back of [a restaurant worker’s] cross-examination where she is asked how many times she had seen the defendant at the restaurant. She indicates that she had seen him 2 times while she was working at the counter, and multiple times while she was not at the counter but through the security camera play-back. We wish to hear this portion read back. We also request to hear the portion of the cross-examination where she is asked and answers when she identified [a shooter shown in the surveillance video] as the defendant to the police” … . The court did not read the note aloud verbatim and the record does not reflect that the court showed the note to the parties. Rather, the record reflects that the court addressed the note before counsel and the jury by stating, “the readback that you have requested of [the restaurant worker’s] cross-examination where she is asked how many times she had seen the defendant at the restaurant will now be read back for you along with the second portion of that which reads, ‘We also request to hear that portion of the cross-examination where she is asked and answers when she identified [the shooter] as the defendant to the police.’ We’ll read both those portions.” The court failed to read the second and third sentences contained within the jury note. We conclude that by improperly paraphrasing the jury note, the court failed to give meaningful notice of the note … . People v Crawford, 2024 NY Slip Op 00528, Fourth Dept 2-2-24

Practice Point: Here the judge’s failure to read the note from the jury verbatim was deemed a mode of proceedings error requiring reversal of a murder conviction.

 

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DEFENDANT’S INNOCENT TEMPORARY POSSESSION OF A WEAPON WAS THE RESULT OF HIS DISARMING A MAN WHO WAS ASSAULTING THE MAN’S WIFE; THE POSSESSION-OF-A-WEAPON CONVICTION REVERSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mendez, over a two-justice dissenting opinion, determined defendant’s temporary possession of a weapon was not “criminal.” Defendant took the weapon from his friend, Moscoso, who was assaulting his (Moscoso’s) wife in an effort to protect her:

… [T]he evidence established that defendant’s possession of the weapon after disarming Moscoso was incidental, temporary, and lawful, and that he did not use the weapon in a dangerous manner. The trial court instructed the jury on “temporary and lawful possession of a weapon” by giving the charge as it appears in the Criminal Jury Instructions … which states in relevant part:

“A person has innocent possession of a weapon when that person comes into possession of the weapon in an excusable manner, and maintains possession, or intends to maintain possession, of the weapon only long enough to dispose of it safely.”

The charge does not define “safely.” Instead, it provides a list of non-dispositive factors for the jury to consider — essentially an “amalgam of elements” — with only some relating to how the defendant disposed of the weapon, suggesting that trial courts should expand on or alter the charge where necessary to fit the facts of the case … . People v Ramirez, 2024 NY Slip Op 00390, First Dept 1-30-24

Practice Point: This case has everything you could ever need to know about innocent temporary possession of a weapon.

 

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THE PROSECUTOR AND THE JUDGE AGREED DEFENDANT’S ALFORD PLEA WOULD BE PREMISED ON HIS ABILITY TO APPEAL A GRAND-JURY EVIDENCE ISSUE; THE THIRD DEPARTMENT HELD SUCH CONDITIONAL PLEAS ARE GENERALLY NOT ACCEPTED IN NEW YORK; MATTER SENT BACK TO ALLOW DEFENDANT TO MOVE TO WITHDRAW HIS PLEA (THIRD DEPT). ​

The Third Department, sending the matter back for a motion to withdraw the plea (if defendant so chooses), determined County Court’s telling the defendant he could appeal his claim that the grand jury was tainted by inadmissible hearsay was erroneous. Defendant, with the judge’s and prosecutor’s permission, decided to enter an Alford plea based on the understanding he could appeal the grand-jury-evidence issue. But the Third Department held that such conditional pleas are generally not accepted in New York and sent the matter back to allow defendant to withdraw the plea:

“As a rule, a defendant who in open court admits guilt of an offense charged may not later seek review of claims relating to the deprivation of rights that took place before the plea was entered,” such as evidentiary or technical defects. Although defendant, the People and the court all agreed that defendant’s Alford plea would be premised on the preservation of his right to raise these issues on appeal, conditional pleas such as this are generally not accepted in this state … , and the contentions he sought to preserve do not fall within the “extremely limited group of issues [that] survive[ ] the entry of a guilty plea” … . In this respect, we cannot overlook defendant’s assertion that his decision to enter an Alford plea was predicated on County Court granting the People’s motion to preclude his defenses and the corresponding promise that he could challenge that determination on appeal. Accordingly, as defendant is no longer receiving the full extent of his bargain, we remit the matter for County Court to allow defendant to withdraw his plea, should he elect to pursue that course … . People v Hafer, 2024 NY Slip Op 00341, Third Dept 1-25-23

Practice Point: Here defendant’s Alford plea, with the permission of the judge and prosecutor, was conditioned on his being able to appeal a Grand Jury evidence issue. The Third Department held that such conditional pleas are generally not accepted in New York. Defendant was allowed to move to withdraw his plea if he so chooses.

 

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DEFENDANT SHOULD NOT HAVE BEEN DENIED ACCESS TO COMPLAINANT’S MENTAL HEALTH RECORDS AND SHOULD NOT HAVE BEEN PREVENTED FROM CROSS-EXAMINING COMPLAINANT ABOUT HER MENTAL HEALTH; CONVICTION REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction in this sex offense trial, determined defendant should not have been denied access to the complainant’s mental  health records and should not been prevented from cross-examining the complainant about her mental health:

… County Court erred in denying the defendant any access to the complainant’s mental health records … . Further, while the scope of cross-examination generally rests within the trial court’s discretion … , here, the court improvidently exercised its discretion in sustaining the People’s objections to the cross-examination of the complainant with respect to her mental health, particularly since the People’s case primarily rested upon the complainant’s eyewitness testimony … . Moreover, these errors cannot be deemed harmless since the evidence of the defendant’s guilt, without reference to the errors, was not overwhelming, and it cannot be said that there is no reasonable possibility that the jury would have acquitted the defendant had it not been for the errors … . People v Nagle, 2024 NY Slip Op 00329, Second Dept 1-24-24

Practice Point: Defendant’s conviction rested on the testimony of the complainant in this sex offense trial. Defendant should not have been denied access to complainant’s mental health records and should not have been prevented from cross-examining complainant about her mental health. New trial ordered.

 

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​ ALTHOUGH DEFENDANT ENTERED A PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, THE JUDGE SHOULD NOT HAVE COMMITED DEFENDANT TO SIX MONTHS IN A SECURE FACILITY PURSUANT TO CPL 330.20(6) WITHOUT HOLDING A HEARING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant, who entered a plea of not responsible by reason of mental disease or defect, should not have been committed to a secure facility pursuant to CPL 330.20(6) based on a finding defendant suffers from a dangerous mental condition or is mentally ill without first holding a hearing:

The Supreme Court committed reversible error by issuing a commitment order without conducting an initial hearing pursuant to CPL 330.20(6) … . The court’s obligation to provide the initial hearing pursuant to CPL 330.20(6) is mandatory … . At the initial hearing “the People must prove by a preponderance of the evidence that the defendant either suffers from a dangerous mental disorder or is mentally ill” … . Here, the court improperly made a finding that the defendant suffers from a dangerous mental disorder and committed him to a secure facility for six months without first conducting a mandatory hearing pursuant to CPL 330.20(6) and, thus, deprived the defendant of an opportunity to cross-examine the psychiatric examiners and to present his own testimony … . People v Anthony N., 2024 NY Slip Op 00328, Second Dept 1-24-24

Practice Point: Before a defendant can be committed to a secure facility for six months based upon a finding defendant suffers from a dangerous mental disorder or is mentally ill, the court must conduct a hearing.

 

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DEFENDANT CANNOT APPEAL THE DENIAL OF HIS MOTION TO DISMISS THE SORA RISK-LEVEL PROCEEDING; HE MUST FIRST BE ADJUDICATED BY THE SORA COURT AND MAY SUBSEQUENTLY APPEAL REQUESTING AN ANNULMENT (FIRST DEPT). ​

The First Department, in full-fledged opinion by Judge Pitt-Burke, determined the defendant could not appeal an interlocutory order which denied his motion to dismiss the SORA proceeding. Defendant had been convicted of a federal offense and argued the Penal Law did not criminalize the use of morphed images which did not depict actual sexual conduct by a child. The First Department held the defendant must go through with the SORA hearing and subsequently make this argument on appeal:

By its plain language, Correction Law § 168-n (3) only permits an appeal “as of right” from the SORA court’s risk level determination order. To find otherwise would be to ignore the legislative intent of the statutory language … . Namely, the procedural safeguards afforded to defendant in Correction Law § 168-n (3) require the SORA court to conduct a risk assessment hearing before it renders an order requiring him to register as a sex offender in New York and assigns him a risk level designation. Until a hearing is held and a determination made, the defendant’s liberty interest as related to the SORA proceeding has not yet been adjudicated (see Correction Law § 168-n [3]). …

Under to CPLR 5701 (a) (2) (v), “[a]n appeal may be taken to the appellate division as of right . . . from an order . . . where the motion it decided was made upon notice and it . . . affects a substantial right.” Even assuming defendant’s interpretation of Correction Law § 168-n (3) is correct, the interlocutory order appealed from does not require defendant to register as a sex offender. In fact, the very procedural safeguards noted above prevent the SORA court from issuing such an order without a hearing. People v Lewis, 2024 NY Slip Op 00248, First Dept 1-18-24

Practice Point: Defendant could not appeal the denial of his motion to dismiss the SORA risk-level proceeding before it was conducted. Defendant contended the federal offense of which he was convicted involved morphed images that did not depict actual sexual conduct by a child, a circumstance, he argued, not covered by the New York Penal Law.

 

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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS GUILTY PLEA; DEFENDANT WAS TOLD BY DEFENSE COUNSEL THAT DEPORTATION BASED ON THE PLEA WAS POSSIBLE, BUT HE WAS NOT TOLD IT WAS MANDATORY; DEFENDANT DEMONSTRATED HE MAY HAVE DECIDED TO GO TO TRIAL IF HE HAD BEEN AWARE OF THE MANDATORY DEPORTATION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his guilty plea. Although the court and defense counsel warned defendant he may be subject to deportation based upon his guilty plea, defendant was not told by counsel that deportation would be mandatory. Defendant was entitled to a hearing on whether he was afforded effective assistance of counsel:

During the plea colloquy, County Court — after prompting by the People — advised defendant that his plea to a felony “may result in [his] deportation” and, at the time of sentencing, defense counsel acknowledged that defendant “took a plea with the understanding that there might be some [i]mmigration issues.” Similarly, defendant averred in support of his CPL 440.10 motion that defense counsel “said that there was only a possibility that [he] could be deported,” and that neither County Court nor defense counsel ever told him “that [he] would be deported if [he] plead[ed] guilty.” These advisements were erroneous, and, as … defense counsel readily could have ascertained — simply from a reading of the relevant statutes — …defendant’s plea to criminal possession of a controlled substance in the third degree rendered deportation presumptively mandatory … and rendered defendant ineligible for cancellation of an order of removal … . “Where, as here, defense counsel gives incorrect advice regarding the immigration consequences of a guilty plea, that constitutes ineffective assistance under the first prong of Strickland” [466 US 668] … .

With respect to the issue of prejudice, defendant averred that he came to the United States as an asylee in 2000 and, in 2006, his status was adjusted to lawful permanent resident. According to defendant, he elected to plead guilty because counsel advised him “that it was the only way to avoid going to jail for a prolonged period of time, and because [counsel] said [he] would have a chance to prevail if [i]mmigration tried to deport [him].” Had he been aware that “criminal [possession] of a controlled substance in the third degree was a mandatory deportable crime,” defendant averred, “[he] would not have plead[ed] guilty and [would have] insisted on going to trial.” These averments, coupled with the fact that, at the time of his arrest, defendant had been residing in Schenectady County for eight years, was self-employed as a mechanic and, together with his long-term partner, was the parent of triplets, raise “a question of fact as to whether it was reasonably probable that [he] would not have entered a plea of guilty if he had been correctly advised of the deportation consequences of the plea” … . “As defendant sufficiently alleged that counsel provided incorrect information concerning the deportation consequences that would result from [his] guilty plea and that [he] was prejudiced as a result thereof, [he] was entitled to a hearing on . . . [his] CPL 440.10 motion” … . People v Marcellus, 2024 NY Slip Op 00209, Third Dept 1-18-24

Practice Point: Informing a defendant that he may be deported based upon his guilty plea when deportation is mandatory constitutes ineffective assistance of counsel.

 

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