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​ DEFENDANT WAS SENTENCED VIRTUALLY AND DID NOT WAIVE HIS RIGHT TO BE PRESENT; RESENTENCING ORDERED (FIRST DEPT).

The First Department determined defendant was entitled to be resentenced because the sentencing was virtual and defendant did not waive his right to be present:

… [D]efendant is entitled to be resentenced because he had a right to be personally present at his sentencing, and he did not expressly waive that right during the virtual proceeding (see CPL 380.40[1] …). People v Barksdale, 2023 NY Slip Op 02744, First Dept 5-18-23

Practice Point: For a virtual sentencing to be valid, the defendant must waive his right to be present.

 

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THE CONVICTION UPON WHICH DEFENDANT’S SECOND-FELONY-OFFENDER STATUS WAS BASED WAS MORE THAN 10 YEARS BEFORE THE CURRENT OFFENSE AND THE PEOPLE DID NOT DEMONSTRATE THAT ANY PORTION OF THE 10-YEAR PERIOD WAS TOLLED BY INCARCERATION; SENTENCE VACATED AND MATTER REMITTED FOR A HEARING AND RESENTENCING (THIRD DEPT). ​

The Third Department, vacating defendant’s sentence as a second felony offender and remitting the matter for a hearing. determined the People did not submit evidence demonstrating when defendant was incarcerated such that the 10-year look-back period for the prior felony conviction could be calculated. The court noted that the issue need not be preserved for appeal:

… [D]efendant contends that he was not properly sentenced as a second felony offender. … [D]efendant was not required to preserve such a claim where, as here, the purported illegality is plain “from the face of the appellate record” … . … [W]e agree with defendant that the record reflects that his April 11, 2011 sentence on his predicate felony conviction was imposed more than 10 years before the commission of the instant offense, which occurred on July 6, 2021 … , and the People failed to meet their burden of showing that the 10-year look-back period was tolled by any periods of incarceration … . At sentencing, defendant admitted to the prior offense, but the People’s predicate felony statement did not set forth defendant’s dates of incarceration … . Since the record fails to disclose the legality of sentencing defendant as a second felony offender, the matter must be remitted for a hearing on this issue and resentencing … . People v McCall, 2023 NY Slip Op 02719, Third Dept 5-18-23

Practice Point: Here the People’s failure to submit proof of defendant’s prior incarceration made it impossible to determine whether the 10-year look-back period for a prior felony was tolled. Defendant’s sentence as a second felony offender was vacated and the matter was remitted for a hearing and resentencing.

 

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THE EVIDENCE OF PHYSICAL INJURY WAS SUFFICIENT TO SUPPORT THE ASSAULT SECOND CONVICTION (CT APP).

The Court of Appeals, reversing the appellate division, determined the evidence was sufficient to support the conviction of assault second:

The victim testified that defendant delivered a very hard blow to his face, that he felt pain, and that he experienced bleeding and swelling. Hospital records describe the victim’s pain as “aching” and indicate he was directed to take over-the-counter painkillers. Viewing the evidence in the light most favorable to the People, it was sufficient to establish physical injury for the purposes of Penal Law § 120.05 (3) … . People v Wheeler, 2023 NY Slip Op 02736. CtApp 5-18-23

Practice Point: The Court of Appeals, reversing the appellate division, found the evidence of physical injury sufficient to support the assault second conviction.

 

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THE INDICTMENT COUNT CHARGING AGGRAVATED FAMILY OFFENSE DID NOT SPECIFY WHICH OF THE LISTED OFFENSES WAS THE BASIS OF THE CHARGE, RENDERING THE COUNT JURISDICTIONALLY DEFECTIVE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, determined the count of the indictment charging aggravated family offense (Penal Law 240.75) was jurisdictionally defective because it did not specify which of the offenses listed in the statute was the basis of the charge:

A defendant commits the crime of aggravated family offense pursuant to Penal Law § 240.75 when the defendant “commits a misdemeanor defined in subdivision two of this section as a specified offense and [the defendant] has been convicted of one or more specified offenses within the immediately preceding five years” (Penal Law § 240.75 [1]). Subdivision two of the statute contains 54 “specified offense[s],” 36 felonies and 18 misdemeanors … . To qualify as a specified offense, the defendant and the person against whom the offense was committed must be members of the same family or household as defined in CPL 530.11 (1) (see id. § 240.75 [2]) … . Thus, to commit the crime of aggravated family offense, a defendant must have been convicted of one or more of the specified offenses in subdivision two of the statute within the previous five years, the defendant must have currently committed one of the misdemeanor offenses listed in subdivision two, and both offenses must be committed against a member of the same family or household as the defendant.

Defendant contends that the failure to specify the current misdemeanor offense in the count of the indictment charging him with aggravated family offense rendered that count jurisdictionally defective … . We agree. People v Saenger, 2023 NY Slip Op 02735, CtApp 5-18-23

Practice Point: The aggravated family offense count did not specify the current misdemeanor offense on which the count was based, rendering the count jurisdictionally defective.

 

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THE DEFENDANT’S ACTIONS OBSERVED BY THE POLICE OFFICERS IN THIS STREET STOP DID NOT MEET THE “REASONABLE SUSPICION DEFENDANT HAD COMMITTED A CRIME OR WAS IN POSSESSION OF A WEAPON” STANDARD; THE FRISK WAS THEREFORE ILLEGAL AND THE SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED (CT APP).

The Court of Appeals, reversing the Appellate Division and dismissing the indictment, in a full-fledged opinion by Judge Wilson, and an extensive concurring opinion by Judge Rivera, determined the police did not have reasonable suspicion defendant had committed a crime or was in possession of a weapon at the time defendant was frisked. The drugs found on defendant’s person should have been suppressed:

Mr. Johnson’s [defendant’s] actions, as observed by Officer Pike, do not meet the minimum standard required to justify a stop and frisk under De Bour. Prior to the frisk, Officer Pike observed Mr. Johnson: (1) move from the driver’s seat to the passenger seat of his parked car; (2) move his upper torso back toward the driver’s seat; (3) pull up his pants and attempt to buckle his belt; and (4) appear nervous while being questioned. These circumstances do not support a reasonable view that Mr. Johnson was armed or that he had committed or was about to commit a crime. These actions “constituted [nothing] other than ‘innocuous behavior,’ sole reliance on which would impermissibly reduce the foundation for [this] intrusion to nothing but ‘whim or caprice’ ” … . People v Johnson, 2023 NY Slip Op 02734, CtApp 5-18-23

Practice Point: Here the Court of Appeals determined the defendant’s actions prior to the stop and frisk did not rise to the “reasonable suspicion” standard. The police observed defendant move to the passenger seat in his parked car, move his upper torso back toward the driver’s seat, pull up his pants and attempt to buckle his belt, and appear nervous when questioned. The stop and frisk was illegal and the seized drugs should have been suppressed.

 

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DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE TO A LEVEL ONE BECAUSE HE HAD BEEN AT LIBERTY FOR 17 YEARS WITHOUT REOFFENDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled a downward departure to level one because he had been at liberty for 17 years without reoffending:

In light of the purpose of SORA, which is to assess the risk that the offender poses while at liberty, lengthy periods during which the defendant has been at liberty after the offense are significant in determining the risk of reoffense and the danger posed in the event of reoffense … . Since these periods are not taken into account in the risk assessment instrument, they are a permissible ground for departure … . Here, the defendant was released from prison for the underlying sex offense in 2002. In the time between his release and the SORA hearing, which was held in 2019, the defendant was at liberty for approximately 17 years without reoffending. In light of the lengthy amount of time without reoffense, we designate the defendant a level one sex offender … . People v Gurley, 2023 NY Slip Op 02686, Second Dept 5-17-23

Practice Point: Here the defendant was entitled to a downward departure to a level one sex offender because he had been at liberty for 17 years without reoffending.

 

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THE WITNESS’S TRIAL TESTIMONY THAT HE DID NOT SEE THE PERPETRATOR’S FACE AND DID NOT SEE THE DEFENDANT FIRE A GUN MERELY FAILED TO CORROBORATE OR BOLSTER THE PEOPLE’S CASE, IT DID NOT CONTRADICT OR DISPROVE ANY EVIDENCE; THEREFORE THE PROSECUTOR SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THE WITNESS (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the prosecutor should not have been allowed to impeach her own witness because the witness’s testimony merely failed to corroborate or bolster the People’s case, it did not contradict or disprove any evidence. The witness testified he did not see the perpetrator’s face and did not see defendant fire a gun:

” … [B]efore a party may impeach its own witness, the testimony on a ‘material fact’ must ‘tend[ ] to disprove the party’s position or affirmatively damage[ ] the party’s case'” … . “Trial testimony that the witness has no knowledge of or cannot recall a particular event, whether truthful or not, does not affirmatively damage the People’s case” … . People v Sams, 2023 NY Slip Op 02684, Second Dept 5-17-23

Practice Point: In order to impeach their own witness, the witness’s testimony must have contradicted or disproved the People’s case. Here the witness’s testimony that he did not see the perpetrator’s face and did not see the defendant fire a gun merely failed to corroborate or bolster the People’s case, it did not disprove or contradict any evidence. Even if the testimony was untrue, the People should not have been allowed to impeach their own witness.

 

A SENTENCE CANNOT BE ALTERED AFTER THE DEFENDANT HAS BEGUN SERVING IT; HERE THE AMENDED UNIFORM SENTENCE AND COMMITMENT FORM DID NOT MERELY CORRECT AN INADVERTENT MISTAKE, IT ALTERED THE SENTENCE AND WAS THEREFORE INVALID (SECOND DEPT). ​

The Second Department, reversing County Court, determined the amended uniform sentence and commitment form which was filed after defendant had begun serving his sentence was invalid. Defendant was originally sentenced for three felonies, two of which were to run consecutively with the third. By operation of law, the two which were to run consecutively with the third ran concurrently with each other. The amended uniform sentence and commitment form purported to have all three sentences run consecutively:

… [T]he defendant correctly contends that his legal sentence was improperly altered, in violation of CPL 430.10, by the amended uniform sentence and commitment form after he began serving his sentence. At sentencing, the County Court identified the sentences which were to run consecutively when it stated that, “[i]n other words, [the attempted murder count] and the [assault count] are to run consecutively to the [intentional murder count].” Contrary to the People’s contention, the court did not, at any point during the sentencing proceeding, specify how the attempted murder count and the assault count were to run with respect to each other. As a result, the sentences imposed on those counts run concurrently as a matter of law (see Penal Law § 70.25[1][a] …). Thus, the original uniform sentence and commitment form reflected the sentence unambiguously imposed by the court during the sentencing proceeding. The record does not indicate that the court misspoke or that its failure to specify that the terms of imprisonment imposed on the intentional murder, attempted murder and assault counts were all to run consecutively to each other was accidental. Therefore, the amended uniform sentence and commitment form effected an improper alteration of the defendant’s sentence in violation of CPL 430.10 … . People v Parsley, 2023 NY Slip Op 02683, Second Dept 5-17-23

Practice Point: Although a court may correct an inadvertent sentencing mistake, it cannot alter a sentence once defendant has begun serving it. Here there was no indication the original sentence, indicating the sentences for two of the three felonies were to run concurrently, was a mistake, so the amended sentence, indicating all three sentences were to run consecutively, was invalid.

 

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THE DEFENDANT ARGUED A 2022 US SUPREME COURT RULING FINDING NEW YORK’S FIREARM LICENSING REQUIREMENT UNCONSITUTIONAL RENDERED THE POSSESSION-OF-A-WEAPON STATUTE TO WHICH HE PLED GUILTY IN 2016 UNCONSTITUTIONAL; THE ISSUE WAS NOT PRESERVED BECAUSE IT WAS NOT RAISED IN THE TRIAL COURT IN 2016 (FIRST DEPT).

The First Department refused to consider a constitutional issue on appeal because the issue was not preserved. Defendant pled guilty in 2016. The defendant argued on appeal that a 2022 US Supreme Court ruling rendered the offense to which he pled guilty, Penal Law 265.03(3), unconstitutional. In order to preserve that issue for appeal, it must have been raised before the trial court in 2016. The US Supreme Court case, New York State Rifle & Pistol Assn., Inc. v Bruen, 142 S Ct 2111 [2022]), declared New York’s license requirement for carrying a loaded firearm in public unconstitutional. Defendant pled guilty to possessing a loaded weapon outside his home or business:

Defendant did not preserve his claim that Penal Law § 265.03(3) is unconstitutional in light of the United States Supreme Court’s decision in New York State Rifle & Pistol Assn., Inc. v Bruen …), or his related claim that the ineligibility of persons under 21 (such as himself at the time of the crime) to apply for licenses to carry firearms violates the Second Amendment. “This [preservation] requirement is no mere formalism, but ensures that the drastic step of striking duly enacted legislation will be taken not in a vacuum but only after the lower courts have had an opportunity to address the issue and the unconstitutionality of the challenged provision has been established” … .

“[D]efendant should not be permitted to avoid the consequences of the lack of preservation” on the ground that a constitutional challenge to Penal Law § 265.03(3) would have been futile … . Here, “[a]lthough [Bruen] had not yet been decided, and trial counsel may have reasonably declined to challenge the [constitutionality of Penal Law § 265.03 (3)], defendant had the same opportunity to advocate for a change in the law as [any other] litigant” … . Defendant is essentially making the argument that an “appellant should not be penalized for his failure to anticipate the shape of things to come,” but the Court of Appeals has expressly rejected that argument … . This preservation principle applies to constitutional claims … .

As an alternative holding, we find that on the present record, defendant has failed to establish that Penal Law § 265.03(3) is unconstitutional. People v Adames, 2023 NY Slip Op 02623, Fist Dept 5-16-23

Practice Point: Even if there has been no ruling on the constitutionality of a statute at the time the offense is before the trial court, in order to preserve the constitutional issue it must be raised in the trial court. Here defendant argued a 2022 US Supreme Court ruling finding New York’s firearm licensing requirement unconstitutional rendered the possession-of-a-weapon statute to which he pled guilty in 2016 unconstitutional. The First Department held the issue was not preserved because it was not raised in the trial court in 2016.

 

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THE DEFENDANT WAS ENTITLED TO A SIROIS HEARING ON WHETHER HE PROCURED THE VICTIM’S REFUSAL TO TESTIFY; CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the defendant was entitled to a Sirois hearing. The People argued the victim’s statement should be placed in evidence because the defendant had procured her silence at trial. But the evidence on the issue was conflicting, necessitating a hearing:

… “[D]efendant should have been afforded an opportunity to test the causal link between [the victim’s refusal to testify at trial and the jail calls], as [defendant] requested, at a separate hearing” … . Although the People contend that a hearing was not necessary because the jail calls “so overwhelming[ly]” establish that the victim’s silence was procured by defendant’s misconduct, “this conclusion . . . is not the test inasmuch as [this Court] cannot evaluate the record in its present state since no hearing was held” … . Moreover, although a defendant may waive a hearing … , that did not occur here. There is no evidence in the record that defendant agreed to forego a hearing or agreed to proceed without further inquiry. In fact, when Supreme Court ruled on the ultimate Sirois issue, rather than on whether the People had “allege[d] specific facts which demonstrate a distinct possibility that a criminal defendant has engaged in witness tampering” such that a hearing was required … , defendant’s trial counsel, the next day, prior to any opening statements, requested a hearing … . The court, however, refused this request, reiterating that it found that the People met their ultimate burden on their submissions. Given this, we find that Supreme Court erred by casting aside “the constitutionally guaranteed truth-testing devices of confrontation and cross-examination … . People v Robinson, 2023 NY Slip Op 02561, Second Dept 5-10-23

Practice Point: Where there is conflicting evidence about whether a defendant procured a witness’s refusal to testify, the judge should not rule on it without holding a hearing.

 

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