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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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THE POLICE HAD ENOUGH CAUSE FOR A LEVEL TWO INQUIRY BUT DID NOT HAVE REASONABLE SUSPICION OF CRIMINAL ACTIVITY AT THE TIME DEFENDANT WAS STOPPED, FRISKED AND BROUGHT TO THE GROUND (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the police did not have reasonable suspicion defendant was involved in a crime at the time defendant was stopped, grabbed and brought to the ground. The police were aware there had been 10 robberies in the area where the victims were punched or struck with objects. The arresting officer saw two men, including the defendant, holding onto a third man on a bicycle. When the men saw the police, one man ran and the man on the bicycle left the scene. Defendant began walking. The police stopped defendant with the police car. The officer touched what he thought was a gun in defendant’s pocket and then brought defendant to the ground. At the station the defendant stated the gun belonged to one of the other men and he had prevented a shooting: The gun and the statement should have been suppressed:

Officer Garcia did not have the requisite reasonable suspicion to detain and frisk the defendant. The unusual interaction that Officer Garcia described regarding the man on the bicycle, coupled with reports and “intel” as to robberies in the area, may have provided circumstances giving rise to a founded suspicion that criminal activity was afoot—i.e., level two under De Bour. Thus, Officer Garcia would have had a right of inquiry that permitted him to approach the defendant. However, rather than conducting meaningful inquiry to further his investigation, after the police vehicle stopped in front of the defendant, Officer Garcia exited the vehicle and immediately grabbed the defendant and touched his right rear pants pocket. People v Hernandez, 2024 NY Slip Op 00196, Second Dept 1-17-24

Practice Point: The case illustrates the difference between the police having enough information to approach a defendant on the street to make an inquiry, and having reasonable suspicion of criminal activity. Here the police had sufficient cause to inquire further, but not to stop and frisk.

 

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THE DRUGS IN DEFENDANT’S CAR MAY NOT HAVE BEEN IN “PLAIN VIEW” IF THE POLICE HAD NOT ILLEGALLY DETAINED DEFENDANT OUTSIDE THE CAR BEFORE LOOKING INSIDE THE CAR; SUPPRESSION GRANTED AND INDICTMENT DISMISSED; THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, reversing the Appellate Division and dismissing the indictment, over a three-judge dissent, determined defendant’s motion to suppress evidence seized from his car should have been granted. The proof at the suppression hearing demonstrated the police observed innocent behavior in a parking lot which which was interpreted to be a drug transaction. As an officer approached, defendant got out of his car and walked toward the officer. The officer frisked the defendant and had him stand at the back of the car. The officer then looked in the car and saw cocaine on the seat. The car was then searched. The Fourth Department, over a two-judge dissent, held that the cocaine was in plain view and would have been seen had the officer simply walked up to the car without detaining the defendant. But the Court of Appeals held that the “plain view” exception to the warrant requirement only applies if the police are acting lawfully at the time the observation was made. Here the police had illegally detained defendant before the observation:

The Appellate Division reasoned that, even if [Officer] Young had not detained defendant, he could have observed the contraband in plain view simply by walking up to the driver’s seat and looking into the vehicle … . However, this conclusion is unsupported because, had the officers not unlawfully detained defendant behind the car, defendant could have walked back, opened the car door and sat on the driver’s seat—actions that, contrary to the dissent’s unsupported assertions … , would have blocked Young’s view of the contraband….  Therefore, the prosecution failed to meet its burden to establish at the suppression hearing that the unlawful detention of defendant was not the reason that Young had an “unobstructed view of the driver’s seat” … . People v Messano, 2024 NY Slip Op 00097, CtApp 1-11-24

Practice Point: The “plain view” exception to the warrant requirement only applies if the police are acting lawfully at the time the observation is made—not the case here.

 

​ALL AGREED A MULTIPLICITOUS COUNT SHOULD BE DISMISSED; THE CONCURRENCE ARGUED THE PROSECUTION HERE WAS UNNECESSARY AND A RESTORATIVE-JUSTICE APPROACH WOULD HAVE BEEN BEST (CT APP).

The Court of Appeals dismissed a multiplicitous count of the indictment. The concurrence by Judge Wilson argued that the underlying prosecution would have been better replaced by a restorative-justice approach. The grand larceny and perjury charges stemmed from what all parties agreed was a “dumb argument” on the street:

A multiplicitous indictment “creates the risk that a defendant will be punished for, or stigmatized with a conviction of, more crimes than [they] actually committed” … . Even when the multiplicitous convictions do not increase the defendant’s sentence, the stigma of impermissible convictions endures and must be remedied. Thus, when a defendant is convicted of multiplicitous charges, the proper remedy is vacatur of all but one of the multiplicitous convictions and dismissal of those counts of the indictment, regardless of whether that corrective action has any effect on the defendant’s sentence. Here, there is no dispute regarding the Appellate Division’s conclusion that the two counts of perjury of which defendant was ultimately convicted were multiplicitous. As the People concede, the proper remedy is therefore dismissal of one of the convictions. People v Greene, 2024 NY Slip Op 00096, CtApp 1-11-24

Practice Point: It is entirely proper to dismiss a multiplicitous indictment-count after trial.

Practice Point: Here Judge Wilson, in a concurrence, argued that this prosecution, which arose from a “dumb argument” on the street, was unnecessary. The case should have been handled with a restorative-justice approach.

 

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THE PROSECUTOR’S REASONS FOR STRIKING THREE BLACK PROSPECTIVE JURORS WERE EITHER NOT RELEVANT TO THE CASE OR INACCURATE AND WERE DEEMED PRETEXTUAL; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the prosecutor’s reasons for striking three Black prospective jurors were pretextual. The proffered reasons were deemed irrelevant and/or inaccurate. The court also noted that the prosecutor improperly told the jury the defendant was guilty:

Supreme Court improperly determined that the facially race-neutral reasons proffered by the prosecutor during step two were not pretextual. With respect to prospective juror no. 6, the prosecutor stated that since this prospective juror “lives on church property,” there were concerns “as to religious reasons, sympathy reasons.” However, during voir dire, this prospective juror was never questioned concerning her religious affiliation, or whether her living situation would make her more sympathetic to the defendant … . …

… “[T]he prosecutor did not offer any explanation for how [two of the] juror[s’] employment [situations] [working with mentally ill people] related to the factual circumstances of the case or the qualifications of the juror[s] to serve” … . People v Vera, 2023 NY Slip Op 06758, Second Dept 12-27-23

Practice Point: Here the prosecutor’s reasons for striking three Black prospective jurors were not relevant to the facts of the case and/or were inaccurate. The Second Department deemed the reasons pretextual and ordered a new trial.

 

THE FEDERAL CRIME WHICH WAS USED TO ENHANCE DEFENDANT’S SENTENCE WAS NOT A FELONY IN NEW YORK; DEFENDANT’S SECOND FELONY ADJUDICATION VACATED (SECOND DEPT).

The Second Department, vacating defendant’s second felony offender adjudication, noted that federal conviction did not constitute a felony in New York for the purpose of enhanced sentencing:

… [T]he defendant was improperly adjudicated as a second felony offender based on his federal conviction of assault with a dangerous weapon in aid of racketeering, because that predicate crime does not require actual injury as one of its elements (see 18 USC § 1959[a][3]) and, thus, does not constitute a felony in New York for the purpose of enhanced sentencing … . People v Odom, 2023 NY Slip Op 06756, Second Dept 12-27-23

Practice Point: If a federal crime does not meet the definition of a felony in New York it cannot be used to enhance defendant’s sentence. Here the federal crime did not include actual injury as one of its elements and therefore did not constitute a felony in New York. Defendant’s second felony offender adjudication was vacated.

 

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IN THIS STREET STOP CASE, THE POLICE OFFICER’S CLAIM TO HAVE SEEN THE OUTLINE OF A GUN UNDER DEFENDANT’S SWEAT PANTS WAS DEEMED INCREDIBLE AS A MATTER OF LAW; THE PEOPLE THEREFORE DID NOT MEET THEIR “BURDEN OF GOING FORWARD” AT THE SUPPRESSION HEARING; THE GUN SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, reversing defendant’s possession-of-a-weapon conviction, determined the People did not meet their burden of going forward at the suppression hearing because the police officer’s (Desposito’s) testimony was not credible. The court went on to say that, even if Desposito’s testimony were true, the evidence did not provide reasonable suspicion for the street stop. Defendant was walking on the sidewalk. Desposito was in a moving car. Desposito claimed he saw the outline of a gun under defendant’s sweat pants and told defendant to stop. Defendant ran, was captured, and a gun was found. Because Desposito was in a moving car and his view of defendant was obscured by parked cars and another pedestrian, the court found his testimony insufficient to meet the “going forward” burden of proof:

… [T]he People failed to establish the legality of the police conduct in the first instance, as Desposito’s testimony was incredible as a matter of law and patently tailored to meet constitutional objections … . Desposito’s testimony that he was able to observe an “L-shaped object” beneath the defendant’s sweatpants as the police vehicle drove past the defendant strains credulity and defies common sense … . …

… [E]ven if Desposito’s testimony is credited as true, his observations did not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion necessary to lawfully pursue the defendant, even when coupled with the defendant’s flight … . People v Leon, 2023 NY Slip Op 06754, Second Dept 12-27-23

Practice Point: If a police officer’s suppression-hearing testimony attempting to demonstrate reasonable suspicion for a street stop is incredible as a matter of law, the People fail to meet their “burden of going forward” and the motion to suppress must be granted.

 

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DEFENDANT’S MOTION PAPERS AND EXHIBITS RAISED A QUESTION OF FACT ABOUT WHETHER HE WOULD HAVE PLED GUILTY IF HE WERE AWARE HE COULD BE DEPORTED BASED ON THE PLEA; THEREFORE THE JUDGE SHOULD NOT HAVE DENIED THE MOTION WITHOUT HOLDING A HEARING (SECOND DEPT).

The Second Department, remitting the matter, determined the judge should not have denied defendant’s motion to vacate his plea without holding a hearing. Defendant alleged he would not have pled guilty if he had been informed of the deportation consequences:

According to the defendant’s motion and exhibits, he allegedly immigrated to the United States at approximately 17 years of age, resided here for approximately 26 years, was employed in the United States, and had two children here. Under the circumstances of this case, the defendant’s allegations in his motion that he would not have pleaded guilty and would instead have gone to trial had the court warned him of the possibility of deportation, were sufficient to raise an issue of fact in that regard … . Therefore, the County Court erred in deciding the defendant’s motion to vacate his plea without a hearing. People v Hernandez, 2023 NY Slip Op 06752, Second Dept 12-27-23

Practice Point: If a defendant, in a motion to vacate his plea, raises a question of fact about whether he would have pled guilty if he had know he could be deported, the judge should not deny the motion without holding a hearing.

 

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