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THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS) VIOLATED THE LESS IS MORE ACT (LIMA) BY FAILING TO HOLD A RECOGNIZANCE HEARING WITHIN 24 HOURS, AND FAILING TO HOLD A PRELIMINARY HEARING WITHIN FIVE DAYS OF THE EXECUTION OF THE PAROLE-VIOLATION WARRANT; HABEAS CORPUS PETITION PROPERLY GRANTED (FIRST DEPT).

The First Department, affirming the grant of the habeas corpus petition, in a full-fledged opinion by Justice Gonzalez, determined the Department of Corrections and Community Supervision’s (DOCCS’s) failure to hold a recognizance hearing on petitioner’s alleged violation of parole within 24 hours as required by the Less is More Act (LIMA) (Executive Law 259-i) violated due process:

LIMA’s plain language was abrogated when petitioner’s recognizance hearing was held five days after the execution of the warrant, instead of within the requisite 24 hours. This error was compounded when the preliminary hearing was held seven days after the execution of the warrant, instead of the requisite five days (Executive Law § 259-i[3][c][i][B]). The interpretation that DOCCS advances would bypass LIMA and effectively remove its statutory duty to ensure that recognizance hearings are timely held within 24 hours of the warrant execution … . Matter of People of the State of N.Y. v Annucci, 2024 NY Slip Op 01685, First Dept 3-26-24

Practice Point: The statutory requirement that a recognizance hearing must be held within 24 hours and a preliminary hearing must be held within five days of the execution of a parole-violation warrant is strictly enforced. Failure to comply with the statutory time-limits violates due process and warrant granting a habeas corpus petition.

 

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THE MAJORITY CONCLUDED THE TRIAL JUDGE PROPERLY HANDLED ALLEGATIONS OF RACIAL BIAS WHICH INVOLVED HALF THE JURORS IN THIS MURDER CASE; TWO JUSTICES DISSENTED (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the trial judge correctly and adequately handled allegations of racial bias among the jurors. The decision is detailed and comprehensive and cannot be fairly summarized here:

From the dissent:

We recognize that “a trial court’s investigation of juror misconduct or bias is a delicate and complex task” … . On this record, however, the disclosure of alleged racial bias harbored by approximately half of the members of the jury warranted, at the very least, a question posed to each of the members of the panel of whether they could perform their duties as jurors without bias or prejudice. We also conclude that, in its voir dire of juror No. 10, the court did not explore whether juror No. 10 harbored any racial prejudice toward Black people, a prerequisite to determining whether she, in fact, could be unequivocally fair and impartial in deliberations. Under these circumstances, the court should also have determined on the record “whether the juror’s statements created a substantial risk of prejudice to the rights of the defendant by coloring the views of the other jurors as well as her own” … . People v Wiggins, 2024 NY Slip Op 01659, Fourth Dept 3-22-24

Practice Pont: Here a juror alleged half the jurors exhibited racial bias. The majority held the judge properly handled the question and properly determined defendant would get a fair trial. There was a two-justice dissent which argued further questioning of the jurors was required.

 

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THE TRIAL TESTIMONY RENDERED THE COUNT DUPLICITOUS, NEW TRIAL REQUIRED (FOURTH DEPT).

The Fourth Department, reversing the conviction and ordering a new trial, determined the trial testimony rendered the count duplicitous:

“Even if a count facially charges one criminal act, that count is duplicitous if the evidence makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict” … . Here, count 2 of the indictment charged defendant with sexual abuse in the first degree regarding an alleged instance, occurring between July 2012 and January 2013, in which she subjected the victim to sexual contact when he was less than 11 years old. At trial, however, the victim testified to multiple acts of sexual contact during the relevant time frame, any one of which could serve as the sexual contact necessary to prove defendant’s guilt of count 2.

Because each act of alleged sexual contact constitutes “a separate and distinct offense” … , the victim’s testimony that numerous such acts occurred during the relevant time frame rendered count 2 of the indictment duplicitous. Indeed, ” ‘it is impossible to verify that each member of the jury convicted defendant for the same criminal act’ ” in connection with count 2 … . People v Zona, 2024 NY Slip Op 01652, Fourth Dept 3-22-24

Practice Point: If the indictment charges one incident during the described time-frame and the trial testimony reveals more than one incident, it is impossible to know whether the jury reached a unanimous verdict on any one incident.

 

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A SIROIS HEARING TO DETERMINE WHETHER WITNESSES ARE UNAVAILABLE TO TESTIFY BECAUSE OF INTIMIDATION IS A MATERIAL STAGE OF A TRIAL; DEFENDANT AND DEFENSE COUNSEL WERE EXCLUDED FROM THE HEARING; NEW TRIAL ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing the conviction and ordering a new trial, determined the judge should not have conducted the Sirois hearing, which is a material stage of a trial, in the absence of defendant and defense counsel. The hearing determined two witnesses were unavailable to testify because of intimidation. Defense counsel was allowed to submit questions to be posed during the hearing:

… [A] new trial is warranted with respect to the criminal possession of a weapon count because he was denied his right to be present at a material stage of the trial (… see generally CPL 260.20). During the suppression hearing, allegations were made that defendant, or people acting at his behest, had threatened two witnesses to the underlying incident about testifying against defendant. The People, therefore, requested a Sirois hearing and sought a determination that the witnesses had been made constructively unavailable to testify at trial by threats attributable to defendant, allowing them to introduce at trial statements made by the witnesses that would otherwise constitute inadmissible hearsay … . * * *

The court erred in conducting the Sirois hearing without defendant or defense counsel present. “[A] defendant’s absence at a Sirois hearing has a substantial effect on [their] ability to defend the charges against [them] and, thus, a Sirois hearing constitutes a material stage of the trial” … . A “[d]efendant [is] entitled to confront the witness[es] against [them] at [such a] hearing and also to be present so that [the defendant can] advise counsel of any errors or falsities in the witness[es]’ testimony which could have an impact on guilt or innocence” … . People v Steele, 2024 NY Slip Op 01642, Fourth Dept 3-22-24

Practice Point; Here defendant and defense counsel were excluded from the Sirois hearing which determined two prosecution witnesses were unavailable to testify because of intimidation. Because the hearing is a material stage of the trial, defendant must be present. Allowing defense counsel to submit written questions was insufficient. A new trial was required.

 

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DEFENDANT WAS NOT GIVEN PRIOR NOTICE OF THE JUDGE’S SUA SPONTE DECISION TO ASSESS 25 POINTS FOR A RISK FACTOR WHEN THE SORA BOARD SUGGESTED FIVE AND THE PEOPLE AGREED TO FIVE; NEW HEARING ORDERED (FOURTH DEPT).

The Fourth Department, vacating the SORA risk-level assessment and remitting the matter for a new hearing, determined the defendant did not have notice of the judge’s sua sponte assessment of 25 points for risk factor 2, when both the SORA Board and the People recommended a five point assessment:

… [T]he court assessed 25 points under risk factor 2 even though the Board had recommended that five points be assessed and the People requested five points. Although the court stated during an appearance prior to the SORA hearing that “it does appear that the upward modification [sic] that was requested [in writing] by the People may be warranted in regards to the sexual intercourse factor,” the court misapprehended the nature of the People’s request for an upward departure, which plainly was not based on a disagreement with the Board’s recommendation under risk factor 2. In any event, the court did not grant an upward departure; instead, after determining at the hearing that only five points should be assessed under risk factor 2, the court later assessed 25 points based on an indication in the case summary that defendant stated at sentencing on the qualifying offense that he had consensual sexual intercourse with the victim.

Because defendant did not have notice that the court was considering a sua sponte assessment of additional points under risk factor 2, we “reverse the order, vacate defendant’s risk level determination, and remit the matter to [Supreme] Court for a new risk level determination, and a new hearing if necessary, in compliance with Correction Law § 168-n (3) and defendant’s due process rights” … . People v Acosta, 2024 NY Slip Op 01626, Fourth Dept 3-22-24

Practice Point: The judge in a SORA risk-level hearing cannot, sua sponte, increase the number of points assessed for a risk factor without prior notice to the defendant. Notice that the People will seek an upward departure does not constitute notice of increased points for a specific risk factor.

Similar issue and result where the People did not give notice of their intent to request a 10 point assessment for risk factor 12. People v Lostumbo, 2024 NY Slip Op 01639, Fourth Dept 3-22-24

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CONSULT THIS OPINION FOR IN-DEPTH DISCUSSIONS OF WHEN POSTREADINESS DELAY SHOULD BE ATTRIBUTED TO THE PEOPLE; THE DISSENT ARGUED THIS RULING UPENDS DECADES OF PRECEDENT BY ATTRIBUTING A DELAY ATTRIBUTABLE TO THE COURT TO THE PEOPLE, RESULTING IN A SPEEDY-TRIAL VIOLATION (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over an extensive three-judge dissenting opinion, reversed defendant’s misdemeanor (reckless driving) conviction on speedy-trial grounds. The majority and dissenting opinions are comprehensive and cannot be fairly summarized here. The opinions should be consulted for in depth discussions of how postreadiness delays should be calculated. The dissent argued that decades of precedent have been upended by the majority’s ruling because postreadiness delay which was attributable to the court (the People asked for a 12-day adjournment and the court imposed a 43-day adjournment) was attributed to the People:

Here … the People filed an off-calendar statement of readiness, were not ready on three successive trial dates, and failed to provide any explanation despite the court’s invitation to do so, and despite the opportunity to provide an explanation in their opposition to [defendant’s] 30.30 motion. Indeed, even in their papers to this Court, the People offered no explanation for any of the times they were not ready on a previously scheduled trial date to which they had assented. Surely that conduct does not serve the legislature’s intended purpose of “discourag[ing] prosecutorial inaction” … . Instead, the People’s conduct fits squarely within our dissenting colleagues understanding of postreadiness delays—they are “charged to the People only when the delay is attributable to their inaction and directly implicates their ability to proceed to trial” … .

From the dissent:

The majority’s opinion upends [the] common-sense understanding that courts and parties have relied on for decades by attributing the court’s postreadiness delay to the People. Applied here, this new rule means the People are held responsible for 43 days of postreadiness delay when they requested only a 12-day adjournment and the additional 31 days were undisputedly caused by court—all because the prosecutor appearing did not know the underlying reason for the People’s 12-day adjournment request. People v Labate, 2024 NY Slip Op 01582, CtApp 3-21-24

Practice Point: This opinion should be consulted for in-depth discussions of when postreadiness delay is attributed to the People. The dissent argued decades of precedent have been upended by this ruling because postreadiness delay which should have been attributed to the court was attributed to the People, resulting in a speedy-trial violation.

 

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EVIDENCE THE DEFENDANT ACTED OUT OF ANGER WAS NOT INCOMPATIBLE WITH THE FINDNG THAT DEFENDANT “RELISHED” THE INFLICTION OF EXTREME PAIN WITHIN THE MEANING OF THE FIRST DEGREE MURDER STATUTE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Garcia, affirming defendant’s first degree murder conviction, determined the evidence demonstrated defendant “relished” the infliction of extreme pain within the meaning of the first degree murder statute. The defendant argued the evidence demonstrated he acted out of anger, and did not demonstrate he relished or enjoyed inflicting pain. But the Court of Appeals found proof of both anger and enjoyment, noting that the two emotions are not mutually exclusive:

We reject defendant’s argument that he acted only out of anger or a desire to get information from the victim. … [W]here the requisite motivation is at least a “substantial factor” in the murder, the statute is satisfied, even if the defendant “may have had mixed motives” … . Certainly, the goal of extracting information is not incompatible with relishing the infliction of extreme pain, and proof that a defendant acted out of anger in harming the victim does not preclude the jury from finding that defendant took pleasure in doing so. Here, defendant is heard on the recording continuing to attack the victim even after stating that her response was “good enough.” On this record, there was sufficient evidence for the jury to find that while defendant may have also acted in anger or sought information from the victim, taking pleasure in inflicting extreme pain upon her was a substantial motivation. People v Bohn, 2024 NY Slip Op 01500, Ct App 3-19-24

Practice Point: Here the defendant argued his actions which resulted in the death of the victim were motivated solely by anger, and that there was no proof he “relished” the infliction of extreme pain as required by the first degree murder statute. The Court of Appeals held that the two emotional states, anger and relishing or enjoying the infliction of pain, are not mutually exclusive.

 

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THE APPELLATE DIVISION’S VACATION OF DEFENDANT’S FIRST DEGREE MURDER CONVICTION WAS AFFIRMED; THE PEOPLE DID NOT PROVE THE “RELISHING THE INFLICTION OF EXTREME PAIN” ELEMENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over two concurring opinions, affirmed the appellate division’s vacation of the defendant’s first degree murder conviction. The appellate division concluded two elements of first degree murder had not been proven: (1) a “course of conduct” which inflicted extreme physical pain; and (2) defendant’s “relishing” the infliction of extreme physical pain upon the victim. The majority agreed with the People that the “course of conduct” element had been proven. But the majority agreed with the appellate division that the “relishing the infliction of extreme pain” element was not proven. The victim was attacked and stabbed multiple times by a group of gang members, including defendant. Defendant inflicted the fatal stab wound to the victim’s neck which caused him to bleed to death. The stab wounds inflicted by others in the gang were deemed “superficial:”

A rational jury could have concluded that [the victim’s] other wounds, inflicted pursuant to a course of conduct during which [the victim] was dragged from the store to the street, and then while on the ground subjected to several stab wounds of varying degrees from multiple assailants, caused him extreme physical pain before his death. * * *

The People’s evidence with respect to this mens rea element consisted of testimony that, shortly after attacking [the victim], defendant stated in a boastful tone that [the victim] was “not gonna eat for a good long time because [defendant] hit him in the neck.” The People also presented evidence that defendant sought out [gang]  leadership after the attack to claim responsibility for stabbing [the victim] in the neck.

This evidence demonstrates, at most, that defendant took pride in having killed [the victim], not that he took pleasure in causing [the victim] extreme physical pain before his death. The statute is clear that the defendant must relish or take pleasure in inflicting extreme physical pain, not simply in killing the victim … . People v Estrella, 2024 NY Slip Op 01499, CtApp 3-19-24

Practice Point: The “course of conduct” to inflict extreme pain and the “relishing” the infliction of extreme pain elements of first degree murder explained and debated. Here the “relishing” element was not proven.

 

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IT WAS NOT CLEAR FROM THE RECORD WHETHER THE JUDGE IMPROPERLY DEEMED YOUTHFUL OFFENDER STATUS TO HAVE BEEN WAIVED BY THE PLEA, OR WHETHER THE JUDGE REJECTED YOUTHFUL OFFENDER STATUS AFTER CONSIDERING IT AS REQUIRED; MATTER REMITTED (FIRST DEPT).

The First Department, remanding the matter for consideration of youthful offender status, determined it was not clear from the record whether the judge improperly denied youthful offender status because it has been waived by the plea or whether youthful offender status had been considered and rejected:

Although the court stated at sentencing that it would not grant defendant youthful offender status with regard to Indictment Nos. 3801/16 and 583/17, “there is nothing in the record to indicate that it actually independently considered youthful offender treatment,” as required by CPL 720.20(1) and People v Rudolph (21 NY3d 497 [2013]), “instead of denying such treatment because it was not part of the plea agreement” … . While a court need not set forth its reasons for denying youthful offender treatment … , it is still required to “clarify expressly whether it had ‘actually consider[ed] youthful offender treatment’ or whether it had improperly ‘ruled it out on the ground that it had been waived as part of defendant’s negotiated plea'” … . Because the court did not satisfy this obligation, we remand the matter for a determination of whether defendant should be afforded youthful offender treatment as to the promoting prison contraband and attempted criminal sale of a controlled substance convictions. People v J.G., 2024 NY Slip Op 01520, First Dept 3-19-24

Practice Point: In rejecting youthful offender status, the judge need not give the reasons but the record must reflect the judge considered the issue and did not improperly consider it waived by the plea.

 

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UNDER THE CIRCUMSTANCES, THE PETITIONER’S REQUEST TO CONTINUE THE TRIAL WITH ELEVEN JURORS SHOULD HAVE BEEN GRANTED; IN ADDITION IT WAS AN ABUSE OF DISCRETION TO DECLARE A MISTRIAL ON ALL COUNTS WITHOUT INQUIRING WHETHER A VERDICT HAD BEEN REACHED ON ANY OF THE COUNTS; RETRIAL OF THIS MURDER CASE PROHIBITED ON DOUBLE JEOPARDY GROUNDS; WRIT OF PROHIBITION GRANTED (FOURTH DEPT).

The Fourth Department, granting petitioner’s request for a writ of prohibition, determined retrial of this murder case was prohibited on double jeopardy grounds. Apparently one juror (juror number five) had done independent research on the charge of murder in the second degree and jurors had complained about racial tension in the jury room, implicating the same juror. There was an indication that jurors had agreed on verdicts for five of six charges. Petitioner asked to continue the trial with 11 jurors, which requires the judge’s consent. The judge denied the request. Defense counsel asked that the jury be polled on the counts for which verdicts had apparently been reached. The judge refused the request and declared a mistrial:

… [T]he People have not met their burden of demonstrating that the declaration of a mistrial was manifestly necessary. Assuming, arguendo, that juror number five was grossly unqualified to continue serving, we conclude that the court abused its discretion in declaring a mistrial without considering other alternatives. Petitioner expressed his desire to waive trial by a jury of 12 individuals and proceed with the remaining 11 jurors, an option that has been endorsed by the Court of Appeals “if circumstances arise that warrant such a request” … . Although the court has discretion to deny a request to proceed with 11 jurors—as the court did here—that discretion is limited … . The record here is devoid of evidence that petitioner’s request was not tendered in good faith, that the request was ” ‘a stratagem to procure an otherwise impermissible procedural advantage’ ” … , or that deliberation with 11 jurors could not “produce a fair verdict” … . 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, “it was an abuse of discretion to have declared a mistrial on all of the counts in the indictment without inquiring whether a decision had been reached on any of the charges” … . Although there was not “overwhelming evidence” that a partial verdict had been reached … , the jury’s note asking for guidance on next steps “[i]f we have a decision on five counts but not on one of them” presented more than a mere inference that the jury may have reached a partial verdict, and the subsequent communications with the jury did not indicate otherwise … . Under these circumstances, the court was required to make an inquiry “as to whether a verdict had been reached on any of the counts . . . before declaring a mistrial over the petitioner’s objection” … .

On this record, “[n]either physical impossibility to proceed nor manifest necessity to declare a mistrial as to the entire indictment has been demonstrated” … because the court failed “to obtain enough information” whether a mistrial was actually necessary as to all counts … . Matter of Shipmon v Moran, 2024 NY Slip Op 01424, Fourth Dept 3-15-24

Practice Point: Under these facts, it was an abuse of discretion to deny petitioner’s request to continue the trial with 11 jurors. Retrial prohibited on double jeopardy grounds.

Practice Point: Under these facts, it was an abuse of discretion to fail to inquire whether the jury had reached a verdict on any counts. Retrial prohibited on double jeopardy grounds.

 

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