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IN THIS TRAFFIC ACCIDENT CASE, EVIDENCE DEFENDANT FAILED TO SEE THE CAR HE COLLIDED WITH AND FAILED TO TIMELY BRAKE IS NOT LEGALLY SUFFICIENT FOR A CRIMINALLLY NEGLIGENT HOMICIDE CONVICTION; THE LEGAL INSUFFICIENCY ARGUMENT WAS PRESERVED BY A MOTION TO DISMISS BROUGHT AT THE CLOSE OF THE PEOPLE’S CASE AND RULED ON AFTER THE DEFENDANT’S CASE; THE “LEGALLY INSUFFICIENT” VERSUS “AGAINST THE WEIGHT OF THE EVIDENCE” STANDARDS EXPLAINED (THIRD DEPT).

The Third Department, reversing defendant’s criminally negligent homicide conviction in this traffic accident case, determined the evidence was legally insufficient. The Third Department noted the issue was preserved by a written motion to dismiss submitted at the close of the People’s case and ruled upon after the close of defendant’s case. The Third Department also compared the criteria for a motion to dismiss for legal insufficiency and a determination a conviction is against the weight of the evidence. The trial evidence demonstrated only that defendant was inattentive when he rounded a turn and struck the back of the victim’s car as it was waiting to make a turn while travelling about 45 mph. That was not enough to demonstrate criminal negligence:

Defendant preserved the claim of legal insufficiency when County Court reserved upon a written motion to dismiss presented at the close of the People’s case and ultimately denied the motion at the close of defendant’s case … .

A review of legal sufficiency requires this Court to “view the facts in the light most favorable to the People and examine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” … . Whereas, a review of whether a verdict is against the weight of the evidence requires the court to “view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence” … . * * *

“The unexplained failure of a driver to see the vehicle with which he subsequently collided does not, without more, support a conviction for the felony of criminally negligent homicide” … . Here, the People argue that a failure to brake — for what is alleged to be a period of 10 to 18 seconds — constitutes criminal negligence. But even taking the facts in the light most favorable to the People, a failure to brake, without more, does not constitute criminal negligence … . People v Munise, 2023 NY Slip Op 06562, Third Dept 12-21-23

Practice Point: Here the victim died after a rear-end collision. Proof that defendant failed to see the victim’s car and failed to timely brake does not support a criminally negligence homicide conviction.

Practice Point: Making a motion to dismiss at the close of the People’s case which is ruled on after the defendant’s case preserves the legal insufficiency argument for appeal.

Practice Point: The decision includes a comparison of the “legal insufficiency” and “against the weight of the evidence” analytical criteria.

 

A DEFENDANT CHARGED WITH A CLASS A FELONY CANNOT WAIVE INDICTMENT AND PLEAD TO A SUPERIOR COURT INFORMATION PURSUANT TO CPL 195.10 (THIRD DEPT).

The Third Department, reversing County Court, vacating defendant’s guilty plea and dismissing the superior court information, determined defendant was not eligible to waive the indictment and plead to a superior court information because the controlling statute does not apply to A felonies. Defendant was charged with an A-II felony:

Defendant’s primary contention is that the waiver of indictment and SCI were jurisdictionally defective … . CPL 195.10 provides, in relevant part, that “[a] defendant may waive indictment and consent to be prosecuted by [SCI] when . . . the defendant is not charged with a class A felony punishable by death or life imprisonment” (CPL 195.10 [1] [b]). To this end, the Court of Appeals has held that “when an accused is held for [g]rand [j]ury action upon a felony complaint that charges a class A felony, . . . a waiver of indictment with respect to that felony complaint is unauthorized” … . Here, defendant was held for grand jury action upon a felony complaint charging him with predatory sexual assault against a child, a class A-II felony that is punishable by an indeterminate sentence with a mandatory maximum term of life imprisonment … . Defendant’s waiver of indictment encompassed this charge and, thus, was expressly prohibited under CPL 195.10 and is invalid, “render[ing] the resulting procedure employed to procure defendant’s guilty plea unauthorized” … . People v Smith, 2023 NY Slip Op 06563, Third Dept 12-21-23

Practice Point: Defendants charged with a class A felony are not eligible, pursuant to CPL 195.10, to waive indictment and plead to a superior court information.

 

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DEFENDANT IN THIS MANSLAUGHTER CASE WAS ENTITLED TO A REDUCED SENTENCE UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA); TWO DISSENTERS ARGUED DEFENDANT’S SENTENCE WAS NOT UNDULY HARSH (THIRD DEPT).

The Third Department, reversing County Court, over a two-justice dissent, determined defendant was entitled to resentencing in this manslaughter case under the Domestic Violence Survivors Justice Act (DVSJA). The dissenters agreed that defendant met the DVSJA criteria for a reduced sentence, but argued the sentence that was imposed was not unduly harsh:

… [W]e disagree with County Court’s determination that defendant’s abuse was anything less than “substantial,” as defendant’s own account of the specific acts of violence, which is largely corroborated by various witnesses in the record, and the injuries suffered as well as the psychological abuse that came alongside such violence was sufficient to fall under the ambit of the DVSJA. Although the court accurately concluded that the relationship between defendant and the victim was mutually abusive, that does not foreclose a determination that defendant was a victim of abuse … . Moreover, such conduct is readily explained in Lesswing’s [the forensic psychologist’s] report as typical of those persons suffering from battered person syndrome, particularly in the case of defendant who had a lengthy history of exposure to domestic violence over the course of her life … . People v Brenda WW., 2023 NY Slip Op 06564, Third Dept 12-21-23

Practice Point: Here in this manslaughter case  the defendant met the criteria for a reduced sentence under the Domestic Violence Survivors Justice Act (DVSJA). Two dissenters agreed that defendant met the criteria but argued the imposed sentence was not unduly harsh.

 

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A CANINE SNIFF FOR DRUGS IS A SEARCH; ALTHOUGH THE APPELLATE DIVISION HAD ALSO RULED THE CANINE SNIFF WAS A SEARCH, THE APPELLATE DIVISION WENT ON TO APPLY THE “REASONABLE SUSPICION” STANDARD AND FOUND THAT STANDARD HAD BEEN MET BY THE FACTS; THE COURT OF APPEALS DETERMINED THE APPELLATE DIVISION DID NOT HAVE THE AUTHORITY TO RULE ADVERSELY TO THE DEFENDANT ON THE STANDARD BECAUSE COUNTY COURT HAD NOT RULED ON THAT ISSUE (COUNTY COURT HELD THE SNIFF WAS NOT A SEARCH); THE MATTER WAS SENT BACK TO COUNTY COURT FOR RULINGS ON THE STANDARD FOR A SNIFF SEARCH (CT APP). ​

The Court of Appeals, in a comprehensive opinion by Judge Cannataro, determined that a canine sniff of a person to detect drugs is a search. The Fourth Department had reversed County Court and held that the canine sniff constituted a search. But the Fourth Department went on to apply the “reasonable suspicion” standard to whether the search was justified and found that standard had been met by the facts. Because County Count had not ruled on the correct standard for a sniff-search (County Court held the sniff was not a search), the Fourth Department did not have the authority rule against the defendant on that issue. The matter was sent back to County Court for rulings on what the correct standard is and whether that standard was met by the events preceding the sniff-search in this case:

… [W]e conclude that the canine sniff of defendant’s person qualified as a search under the Fourth Amendment. * * *

The second question presented by this appeal is whether the Appellate Division could decide that a canine sniff search of a person requires reasonable suspicion and was justified in this case. We conclude that the Appellate Division lacked jurisdiction to resolve those issues because County Court did not decide them adversely to defendant (see LaFontaine, 92 NY2d at 473-474). * * *

County Court held that the canine sniff of defendant’s person did not qualify as a search. The court did not decide the standard that would govern if the canine sniff did so qualify, much less whether that standard was met. Those questions present “separate” and “analytically distinct” issues from the threshold question of whether the sniff implicated constitutional protections or prohibitions … . The Appellate Division therefore erred in deciding those questions adversely to defendant…. . People v Butler, 2023 NY Slip Op 06468, CtApp 12-19-23

Practice Point: A canine sniff for drugs on a person is a search. The correct standard justifying such a search has not been determined.

Practice Point: If an issue has not been addressed by the lower court, the appellate court is powerless to rule adversely to the defendant on that issue. Here County Court had held that a canine sniff is not a search and therefore never ruled on the correct standard for such a search. The Appellate Division (which reversed County Court on whether the sniff is a search) could not decide what the correct standard for the search was and then rule that the standard had been met, because that ruling was adverse to the defendant. The matter was sent back to the County Court for a ruling.

 

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HERE THE LEVEL-THREE STOP AND FRISK FOR A SUSPECTED FIREARM WAS VALID; CRITERIA EXPLAINED (FIRST DEPT).

The First Department, affirming the denial of defendant’s suppression motion, explained the criteria for a level-three stop and frisk for a suspected firearm:

In assessing the propriety of a level-three stop and frisk of a defendant for a suspected firearm the court must consider three factors: First, whether there was proof of a describable object or of describable conduct that provides a reasonable basis for the police offer’s belief that the defendant had a gun in his possession … .

A stop and frisk for a firearm is justifiable in cases where the officer identifies the outline of a pistol in the defendant’s pocket … . Here, the officer described in detail the distinct pistol shape of the bulge in defendant’s jeans pocket, including the orientation of the barrel and pistol grip, that he observed over the course of approximately a minute. Pursuant to the first Prochilo factor, these observations constituted proof of a “describable object” that “provide[d] a reasonable basis for the police officer’s belief that the defendant had a gun in his possession,” justifying the officer’s immediate frisk of defendant’s pocket (Prochilo, 41 NY2d at 761).

The second Prochilo factor is whether the manner of the officer’s approach to the defendant and the seizure of the gun was reasonable under the circumstances (41 NY2d at 761). Following the observation of a gun-shaped bulge in a defendant’s pocket, an officer is generally justified in conducting a minimally invasive pat-down of the bulge to confirm that it is indeed a firearm … . Here, after observing the pistol-shaped bulge in defendant’s right rear jeans pocket, the officer conducted a pat-down of the bulge and confirmed that it was a gun. … Upon confirming that the object was a firearm, the officer had probable cause to effectuate an arrest and reasonably tackled defendant to the ground. People v Bowman, 2023 NY Slip Op 06494, First Dept 12-19-23

Practice Point: This decision explains the criteria for a valid level-three stop and frisk for a suspected firearm.

 

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THE PEOPLE DID NOT EXERCISE DUE DILIGENCE IN PROVIDING DISCOVERY; THE CERTIFICATE OF COMPLIANCE WAS INVALID AND DID NOT STOP THE SPEEDY-TRIAL CLOCK (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, determined the People did not exercise due diligence in providing discovery to the defense. Therefore the certificate of compliance (COC) was invalid and did not stop the speedy trial clock. The prosecution was time-barred:

In 2019, the New York State Legislature enacted sweeping reforms that expanded and restructured disclosure obligations in criminal cases, effective at the start of 2020 (see L 2019, ch 59, § 1, pt LLL). This appeal concerns a new requirement set forth in CPL article 245 that the People file a certificate of compliance (COC) with their statutory disclosure obligations (see CPL 245.50 [1], [3]). * * *

Due diligence is a mixed question of fact and law, and thus we consider whether the fact finder’s conclusions are supported by the record … . Viewed under the proper legal standard, there is no record support for the conclusion of the courts below that prior to filing the initial COC, the People exercised due diligence and made reasonable inquiries to identify mandatory discovery items relating to this case.

The belated disclosure here consisted of routinely produced disclosure materials—the creation of at least one of which was mandated by law … . The absence of such significant items of disclosure was readily noticed by the defense, which then brought it to the attention of the People and the court. The prosecution had two opportunities to establish that they had exercised due diligence, but failed to do so. At the appearance on May 26th, in which defense counsel first called attention to the missing items, the prosecutor simply asserted that he had “checked” without any elaboration as to what efforts were made to verify whether there was any outstanding discovery or whether the disclosure requested by the defense—which was in the possession of the People (see CPL 245.20 [2])—actually existed. The prosecutor speculated that such disclosure items did not exist and had not been created, and otherwise stated in a cursory fashion that all discovery had been turned over. When the parties appeared on July 6th following Bay’s CPL 30.30 motion, the People again made no mention of any efforts taken to ascertain the existence of discovery materials before the COC was filed, nor did they explain why some discovery was initially missing or how it came into their possession. People v Bay, 2023 NY Slip Op 06407, CtApp 12-14-23

Practice Point: Here the People did not exercise due diligence in complying with their discovery obligations. Therefore the certificate of compliance (COC) was invalid and did not stop the speedy trial clock. If the People can demonstrate they exercised due diligence in providing discovery, the COC will not be deemed improper.

 

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HERE A WITNESS TO THE SHOOTING IDENTIFIED THE DEFENDANT AS THE SHOOTER FOR THE FIRST TIME AT TRIAL; UNDER THE FACTS, THE DEFENDANT WAS NOT PREJUDICED; THE COURT OFFERED GUIDANCE ON HOW TO HANDLE OR AVOID THE SITUATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a comprehensive dissenting opinion, affirming the Appellate Division, determined defendant was not prejudiced by a witness to the shooting who identified him as the shooter for the first-time at trial. The opinion takes note of the suggestiveness of a first-time identification at trial and offers instructions on how the situation should be handled and/or avoided. Here, however, the the defendant was aware of the witness and did not request any identification procedures, surveillance video captured both the shooter and the victim, the victim knew the shooter, and the victim identified the shooter. The court noted that any error was clearly harmless:

Concerning identifications made at trial, this Court and many others have recognized the inherent suggestiveness of the traditional in-court identification procedure, with a single defendant sitting at a table with defense counsel … . As with an unduly suggestive pretrial identification, it will often be immediately clear to the witness who the accused defendant is, especially if the witness has a rudimentary knowledge of courtroom seating arrangements. The principal danger is that, faced with the pressures of testifying at trial, the witness will identify the defendant as the perpetrator simply because the defendant is sitting in the appropriate spot, and not because the witness recognizes the defendant as the same person that they observed during the crime. Inasmuch as the traditional courtroom seating arrangement may itself suggest to the witness who should be identified, trial courts must be vigilant to ensure that where a witness has not previously identified the defendant in a properly conducted pretrial identification procedure such as a photo array or lineup, the suggestiveness of a first-time, in-court identification procedure does not create an unreasonable danger of a mistaken identification. People v Perdue, 2023 NY Slip Op 06404, CtApp 12-14-23

Practice Point: Here, under the unique facts of the case, defendant was not prejudiced by allowing a witness to identify him as the shooter for the first time at trial. The court offered guidance on how the situation should be handled and/or avoided.

 

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HERE THERE WAS NO INDICATION THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT, A JURISDICTIONAL DEFECT (THIRD DEPT). ​

The Third Department, dismissing the superior court information, determined the waiver of indictment was invalid because there was not evidence it was signed in open court:

A defendant “may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney,” and “such waiver shall be evidenced by written instrument signed by the defendant in open court in the presence of his or her counsel” … . Although the record reflects that defendant orally agreed to waive indictment in open court on November 19, 2020, the written waiver of indictment, which defendant and defense counsel acknowledged signing, is dated November 17, 2020, and the minutes do not demonstrate that defendant signed the waiver in open court, as constitutionally mandated. “Compliance with this unequivocal dictate is indispensable to a knowing and intelligent waiver and the failure to adhere to this strict procedure is a jurisdictional defect which survives a guilty plea and appeal waiver and need not be preserved for review by a motion to withdraw the plea” … . “Moreover, neither the written waiver of indictment, to which the District Attorney executed consent on [October 14, 2020], nor County Court’s undated order approving the waiver, indicates that the waiver was signed in open court” on November 19, 2020 … . “In light of this jurisdictional defect, defendant’s guilty plea must be vacated and the superior court information must be dismissed” … . People v Berry, 2023 NY Slip Op 06410, Third Dept 12-14-23

Practice Point: Here the waiver of indictment was deemed invalid because there was no indication the waiver was signed in open court, which is a jurisdictional defect. The superior court information was therefore dismissed.

 

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THE JUDGE, SUA SPONTE, DECIDED TO ENHANCE DEFENDANT’S AGREED-UPON SENTENCE BASED UPON HER RESPONSES TO QUESTIONS POSED BY PROBATION FOR THE PRESENTENCE REPORT; THE PROSECUTOR DID NOT ASK FOR THE ENHANCED SENTENCE; THE DEFENSE WAS NOT GIVEN AN OPPORTUNITY TO ADDRESS THE ISSUE, THEREBY DEPRIVING DEFENDANT OF DUE PROCESS (THIRD DEPT).

The Third Department, vacating defendant’s sentence, over a dissent, determined that the defense was not given an opportunity to address the sentencing judge’s sua sponte decision to enhance the agreed-upon sentence based on defendant’s responses to questions posed by probation for the presentence report. The prosecutor did not see any conflict between defendant’s plea allocution and her responses in the report and did not call for an enhanced sentence: So the defense was taken by surprise.. Defense counsel requested a hearing but the request was denied:

After the parties had an opportunity to state their arguments, the court engaged in a lengthy colloquy before … stating that it disagreed with the People’s conclusion that there was no violation of the plea agreement and determining that it would enhance defendant’s sentence to the maximum allowable term of imprisonment. It was at this point that defendant first had any indication that she was facing a potential sentencing enhancement and, in response, defense counsel immediately requested a hearing, which County Court summarily denied.… .In effect, that determination precluded defendant and her counsel an opportunity to refute the accuracy of the officer’s statements in the PSR that were relied upon by the court in finding that she had violated a condition of her plea by failing to answer the probation officer’s questions truthfully … . Moreover, County Court made no further inquiry as to whether defendant understood the questions asked during her Probation Department interview and whether she had answered them untruthfully or contrary to her statements at her plea proceedings … .

While a hearing is not necessarily required in all instances, the circumstances before us warranted some form of inquiry before County Court could impose an enhanced sentence … . People v Dibble, 2023 NY Slip Op 06411, Third Dept 12-14-23

Practice Point: When the judge, sua sponte, decided to enhance defendant’s agreed-upon sentence because of defendant’s responses to questions posed by probation for the presentence report, defense counsel immediately requested a hearing to address the issue (which had not been raised by the prosecution). The request was denied. The Third Department agreed that a hearing was required in this case and vacated the sentence.

 

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THE DRIVER’S LICENSE SUSPENSION REFORM ACT (DLSRA), WHICH ELIMINATED LICENSE SUSPENSIONS FOR FAILURE TO PAY A FINE, DOES NOT VACATE UNLICENSED-OPERATION CONVICTIONS BASED UPON THE FAILURE TO PAY A FINE AND DOES NOT APPLY RETROACTIVELY; THE APPEAL WAIVER HERE WAS INVALID BECAUSE IT SUGGESTED DEFENDANT COULD NOT FILE A NOTICE OF APPEAL (FIRST DEPT).

The First Department, affirming defendant’s unlicensed operation of a vehicle conviction, in a full-fledged opinion by Justice Webber, determined the Driver’s License Suspension Reform Act (DLSRA) did not vacate defendant’s conviction. The DLSRA eliminated the failure to pay a fine as a basis for suspension of a driver’s license and does not apply retroactively. Defendants’ waiver of appeal was deemed invalid because the written waiver indicated a notice of appeal could not be filed:

… [T]he written waiver of appeal contained language … suggesting that the defendant was barred from even filing a notice of appeal … . The People contend that because they did not enforce the language stating that defendant’s appeal would be deemed a motion to vacate, the oral colloquy at the sentencing hearing cures the defect in the written waiver or otherwise renders defendant’s waiver valid. This contention is without merit … . …

The DLSRA amended Vehicle and Traffic Law § 510(4-a) to remove the failure to pay a fine as a basis for the suspension of a driver’s license … . The Legislative intent was to lift suspensions of licenses and lessen the financial burdens on the defendants by structuring an affordable installment payment plan … .

Nothing in the statutory language, which is the “clearest indicator of legislative intent” suggests that there was any intent to authorize the vacatur of convictions under Vehicle and Traffic Law § 511 that arose from license suspensions predicated on failures to pay a fine … . People v Castro, 2023 NY Slip Op 06452, First Dept 12-14-23

Practice Point: The Driver’s License Suspension Reform Act (DLSRA) does not vacate unlicensed-operation convictions stemming from a failure to pay a fine and does not apply retroactively.

Practice Point: A written waiver of appeal which indicates a notice of appeal cannot be filed is invalid.

 

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