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THE TRIAL JUDGE TOOK ON THE APPEARANCE OF AN ADVOCATE FOR THE PROSECUTION IN QUESTIONING WITNESSES; ROBBERY CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s robbery conviction and ordering a new trial, determined the trial judge acted as an advocate for the prosecution when questioning witnesses. The issue was not preserved but the Second Department exercised its interest of justice jurisdiction:

“[A] trial judge is permitted to question witnesses to clarify testimony and to facilitate the progress of the trial, and, if necessary, to develop factual information,” so long as the judge does not take on the function or appearance of an advocate … . Here, the Supreme Court engaged in its own lines of inquiry, which detailed the nature of the surveillance equipment tracking the defendant, elicited a detailed description of the perpetrator and the bags he was carrying, and what the perpetrator was observed doing on the video surveillance camera, asked leading questions as to what the guard saw and heard as the perpetrator left the store and triggered the store alarm, and noted that when the guard approached the perpetrator and asked for the merchandise back, the guard even said, “please,” but the perpetrator still refused to return the items.

The Supreme Court also repeated the perpetrator’s allegedly threatening language, “[K]eep going or watch what’s going to happen to you,” and noted that it looked like the perpetrator was reaching for something and the guard did not want to find out what it was. During the direct examination of the arresting officer, the court elicited the fact that the officer observed a duffel bag containing the stolen property on the subway platform next to the defendant.

Viewing the record as a whole, the Supreme Court took on the function and appearance of an advocate, at times even engaging in a running commentary on the testimony against the defendant. The court’s conduct left the impression that its opinion favored the credibility of the People’s witnesses and the merits of the People’s case … . People v Pulliam, 2023 NY Slip Op 03482, Second Dept 6-28-23

Practice Point: A trial judge can ask questions of witnesses but cannot take on the appearance of an advocate for the prosecution.

 

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THE WASHINGTON DC ATTEMPT TO COMMIT ROBBERY CONVICTION COULD NOT BE THE BASIS OF A SECOND FELONY OFFENDER ADJUDICATION IN NEW YORK (SECOND DEPT).

​The Second Department, reversing (modifying) Supreme Court, determined a Washington DC offense could not be the basis of a second felony offender adjudication. Although the issue was not preserved, the court exercised its interest of justice jurisdiction:

… [T]he defendant’s conviction of attempt to commit robbery in Washington, D.C., cannot be used as a predicate felony in New York (see People v Jurgins, 26 NY3d 607, 614-615; see also Penal Law §§ 70.06[1][b][i]; 160.00, 110.00; DC Code §§ 22-2801, 22-2802). Accordingly, we modify the judgment by vacating the defendant’s adjudication as a second felony offender and the sentence imposed thereon, and we remit the matter … for resentencing. People v Blaker, 2023 NY Slip Op 03472, Second Dept 6-28-23

Practice Point: The Washington DC attempt to commit robbery conviction could not be the basis for a second felony offender adjudication in New York.

 

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THE STATUTE PROHIBITING SEX OFFENDERS FROM BEING WITHIN 1000 FEET OF SCHOOL GROUNDS AS APPLIED TO SEX OFFENDERS CONVICTED BEFORE THE STATUTE WENT INTO EFFECT DOES NOT VIOLATE THE EX POST FACTO CLAUSE; HERE PETITIONER WAS INCARCERATED PAST HIS PAROLE DATE BECAUSE HOUSING WHICH COMPLIED WITH THE SCHOOL GROUNDS LAW COULD NOT BE FOUND (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Singas, three judges dissenting, determined the statute (Executive Law 259-c [14]) prohibiting sex offenders from being within 1000 feet of school grounds as applied to sex offenders who were convicted before the statute went into effect does not violate the Ex Post Facto Clause of the US Constitution. Here the application of the statute resulted in petitioner remaining incarcerated past his parole release date because housing which met the school-grounds requirement could not be found:

The United States Constitution’s Ex Post Facto Clause prohibits states from “retroactively alter[ing] the definition of crimes or increas[ing] the punishment for criminal acts” … . The ex post facto prohibition “applies only to penal statutes” and “where the challenged statute does not seek to impose a punishment, it does not run afoul of the Ex Post Facto Clause” … . * * *

We are unable to conclude from this record that prolonged incarceration is a common result of Executive Law § 259-c (14), rather than an idiosyncratic effect, and the Supreme Court has “expressly disapproved of evaluating the civil nature of [a statute] by reference to the effect that [statute] has on a single individual” … . Petitioner has failed to meet the heavy burden of demonstrating, by the clearest proof, that the effects of Executive Law § 259-c (14) are “so punitive . . . as to negate [the legislature’s] intention to deem it civil” … . People ex rel. Rivera v Superintendent, Woodbourne Corr. Facility, 2023 NY Slip Op 03299, CtApp 6-15-23

Practice Point: Here petitioner remained incarcerated past his parole release date because housing which complied with the school-grounds statute (prohibiting sex offenders from being within 1000 feet of school grounds) could not be found. Even though petitioner was convicted before the school-grounds statute was enacted, the majority concluded the statute does not violate the Ex Post Facto Clause. There were three dissenting judges.

 

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THE STATUTE PROHIBITING SEX OFFENDERS ON PAROLE FROM BEING WITHIN 1000 FEET OF SCHOOL GROUNDS APPLIES TO YOUTHFUL OFFENDERS (CT APP). ​

The Court of Appeals, reversing the appellate division, in a full-fledged opinion by Judge Halligan, determined the statute prohibiting a sex offender on parole from being within 1000 feet of school grounds applies to youthful offenders:

The Sexual Assault Reform Act (SARA) imposes a mandatory restriction prohibiting a person who is “serving a sentence” for an enumerated offense against a minor victim and is released on parole from coming within 1,000 feet of school grounds (see Executive Law § 259-c [14] …). The question presented in this appeal is whether that restriction applies to youthful offenders. We hold that it does.

Petitioner pleaded guilty to the attempted second-degree rape of a 13-year-old victim … . Petitioner was 18 years old at the time of the offense and was adjudicated a youthful offender … . He was initially sentenced to a 10-year period of probation, but after violating the terms of his probation, he was resentenced to an indeterminate term of imprisonment. The Board of Parole granted petitioner an open date (that is, the earliest possible release date) of August 2018, subject to numerous conditions of release. As relevant here, petitioner was required to abide by SARA’s school grounds condition and thus would not be released until he identified a SARA-compliant residence. Unable to obtain suitable housing, petitioner remained imprisoned. * * *

The purpose of the school grounds condition is to bar offenders who pose the “highest risk to children” from entering school grounds … . Certainly, someone accorded youthful offender status can fall into this category. While we appreciate that the consequences of imposing the school grounds condition may be severe, the legislature has authorized the imposition of other long-term consequences, such as a lengthy probationary term, on youthful offenders … . And once the youthful offender serves their sentence, the school grounds condition is lifted and the youthful offender will receive the “fresh start” provided to them by statute … . People v Superintendent, Livingston Corr. Facility, 2023 NY Slip Op 03298, CtApp 6-15-23

Practice Point: The statute prohibiting sex offenders on parole from being within 1000 feet of school grounds applies to youthful offenders.

 

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DEFENDANT’S POSITIVE PERFORMANCE IN THE PRISON SEX OFFENDER TREATMENT AND EDUCATIONAL PROGRAMS, GIVEN THE SERIOUSNESS OF HIS OFFENSES, DID NOT WARRANT A DOWNWARD DEPARTURE FROM LEVEL THREE TO LEVEL TWO; TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, affirming the appellate division, over a two-justice dissent, determined defendant’s request for a downward departure in this SORA risk-level proceeding (level three to level two) was properly denied:

In 1988, defendant was convicted after trial of four counts of first-degree rape and four counts of first-degree sodomy, among other crimes, for raping or sexually assaulting five women in their homes at knifepoint during burglaries that occurred over the course of a year. In anticipation of defendant’s conditional release from imprisonment in 2020, the Board of Examiners of Sex Offenders assessed defendant 155 points on the risk assessment instrument (RAI), presumptively designating him a level three sexually violent offender for purposes of the Sex Offender Registration Act (SORA).

Defendant did not dispute the accuracy of the Board’s point assessment, but he requested that the court depart downward to risk level two. To that end, defendant argued that he did not present a high risk of sexual reoffense, as evidenced by his positive performance in sex offender treatment and educational programs while incarcerated (including obtaining his general equivalency diploma and college-level education credits), limited history of disciplinary infractions, age at time of release (51 years old), familial support, and his scores on two alternative risk assessment instruments. Defendant also asserted that he would be subject to supervision regardless of his risk designation as part of the terms of his conditional release, and that a level three designation would make it more difficult for him to locate housing. People v Anthony, 2023 NY Slip Op 03303, CtApp 6-15-23

Practice Point: Here defendant’s age (51) and positive performance in the prison sex offender treatment and educational programs, given the seriousness of his offenses, did not warrant a SORA risk-level downward departure from level three to level two. There was a strong two-judge dissent.

 

THE INCLUSORY CONCURRENT COUNTS MUST BE DISMISSED AND THE RELATED SENTENCES VACATED (THIRD DEPT).

The Third Department determined the inclusory concurrent counts must dismissed and the related sentences vacated:

Modification of the judgment is required due to defendant’s conviction of inclusory concurrent charges. ” ‘With respect to inclusory concurrent counts, a verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted’ ” (… CPL 300.40 [3] [b]). We agree with defendant, and the People correctly concede, that criminal sexual act in the first degree (two counts) must be reversed and dismissed as inclusory concurrent counts of predatory sexual assault against a child … . Defendant’s contention that incest in the third degree must be dismissed as an inclusory concurrent count of incest in the first degree is moot, as this Court has now dismissed the latter count. People v Sharlow, 2023 NY Slip Op 03260, Third Dept 6-15-23

Practice Point: Where a defendant is convicted of inclusory concurrent counts, those counts must be dismissed and the related sentences vacated.

 

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ONCE THE APPELLATE DIVISION DETERMINED A SORA RISK FACTOR DID NOT APPLY, BRINGING DEFENDANT’S RISK ASSESSMENT FROM A LEVEL THREE TO A LEVEL TWO, THE APPELLATE COURT HAD THE AUTHORITY TO REMIT THE MATTER TO COUNTY COURT TO CONSIDER, FOR THE FIRST TIME, WHETHER AN UPWARD DEPARTURE WAS WARRANTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a dissenting opinion, determined that the appellate division appropriately remitted the matter to County Court after the appellate court reduced the risk assessment by 10 points because the People conceded the absence of forcible compulsion. Eliminating that 10 point assessment resulted in reducing defendant from a level three offender to a level two offender. The remittal was for the purpose of allowing County Court to consider an upward departure, which the court did not consider because defendant had been deemed a presumptive level three offender at the time of the SORA hearing:

Here, the People prevailed before the SORA court on their requested allocation of points under the RAI [risk assessment instrument] and risk level. When the Appellate Division reversed on the allocation of points and the risk level dropped accordingly, it remitted to allow the SORA court to consider a departure request for the first time. Defendant and our dissenting colleague object, contending that because this upward departure request was not made during the original SORA proceeding, the SORA court made no ruling “adverse” to the People, and the Appellate Division therefore could not “review” this “unpreserved” departure question and order remittal upon reversal. But this argument confuses the question of whether remittal was appropriate corrective action with a question of preservation … . This is not a case in which a party failed to present an issue to the SORA court and then asked the Appellate Division to nonetheless resolve that same question; the Appellate Division did not rule on the merits of the departure but remitted it for the SORA court to do so in the first instance … . * * *

Curbing the Appellate Division’s power to remit for consideration of departure requests when it disagrees with the hearing court’s point assessment and changes an offender’s presumptive risk level would undermine SORA’s objective and unduly constrain the Appellate Division’s authority to order appropriate remedial action.  People v Weber, 2023 NY Slip Op 03301, CtApp 6-15-23

Practice Point: Here in this SORA risk level proceeding, the appellate division appropriately remitted the matter to County Court to determine whether an upward departure was warranted. The appellate division had found a risk factor did not apply, reducing defendant’s risk level from three to two. County Court had not considered an upward departure in the original SORA proceeding because defendant’s presumptive risk level was already level three.

 

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EVEN THOUGH THE SORA RISK LEVEL CAME OUT THE SAME (115 POINTS), THE JUDGE SHOULD NOT HAVE FIRST REMOVED 15 POINTS WHICH WERE BASED ON AN INAPPLICABLE RISK FACTOR AND THEN ADDED 15 POINTS BASED ON A RISK FACTOR NOT INCLUDED IN THE RISK ASSESSMENT; THAT CONSTITUTED AN UPWARD DEPARTURE WITHOUT NOTICE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, with a three-judge concurrence, reversing the appellate division, determined the judge in the SORA risk-level proceeding should not have departed from the presumptive risk level based on an issue of which the defendant was not given 10 days notice. The risk assessment included 15 points for refusing sex offender treatment but it was clear defendant did not refuse treatment. Rather, he was prohibited from receiving the treatment because of his prison disciplinary history. The judge agreed the 15 points for refusing treatment should be removed, but then added 15 points based on the defendant’s disciplinary record, a risk factor which was not included in the Board’s risk assessment:

Here, the proceeding failed to comport with due process because defendant was provided no notice or meaningful opportunity to be heard in response to the District Attorney’s request for an upward departure first interposed during the SORA hearing in response to the court’s invitation. The Board recommended the court classify defendant as a level three offender based on his risk factor score of 115 points and did not recommend an upward departure or that the court consider defendant’s disciplinary history for purposes aside from a factor 13 point allocation. Although the District Attorney agreed with the Board that defendant should be classified as a level three risk, the District Attorney reached that conclusion not on the total point assessment contained in the RAI but rather on an independent basis that defendant’s disciplinary history was sufficiently egregious to warrant an upward departure. Once the District Attorney announced its deviation from the reasons supporting the Board’s proposed risk level classification, defendant was entitled to a sufficient opportunity to consider and muster evidence in opposition to the request for an upward departure. The record shows that the court decided the issue without an adjournment, without allowing defendant to present rebuttal arguments or collect additional evidence, and without any input from defense counsel. The court erred by proceeding in this manner.  People v Worley, 2023 NY Slip Op 03300, CtApp 6-15-23

Practice Point: Even where the total number of SORA risk level points remains unchanged from that recommended by the Board, the judge cannot remove one inapplicable risk factor and then add a risk factor not recommended by the Board without affording defendant 10 days notice and an opportunity to be heard.

 

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FAILURE TO INFORM THE DEFENDANT OF THE PERIOD OF POSTRELEASE SUPERVISION TO BE IMPOSED OR THE MAXIMUM POTENTIAL PERIOD OF POSTRELEASE SUPERVISION RENDERED THE GUILTY PLEA INVALID (SECOND DEPT). ​

The Second Department, vacating defendant’s guilty plea, determined the failure to inform defendant of the details of postrelease supervision rendered the plea invalid:

… [A]t the plea proceeding, the County Court mentioned that the sentence would include postrelease supervision, but did not specify the period of postrelease supervision to be imposed, nor did the court indicate the maximum potential duration of postrelease supervision that may be imposed. As the People concede, the court’s failure to so advise the defendant prevented his plea from being knowing, voluntary, and intelligent … . People v Pryor, 2023 NY Slip Op 03241, Second Dept 6-14-23

Practice Point: A guilty plea is not knowing, voluntary and intelligent unless the defendant is informed of the specific period of postrelease supervision and the maximum potential period of postrelease supervision. It is not enough simply to mention that postrelease supervision will be imposed.

 

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DEFENDANT WAS WEARING A STUN BELT DURING THE TRIAL WITHOUT THE JUDGE’S OR PROSECUTOR’S KNOWLEDGE; THE MAJORITY HELD THIS WAS NOT A MODE OF PROCEEDINGS ERROR; A TWO-JUDGE DISSENT DISAGREED (CT APP).

The Court of Appeals, over a two-judge dissent, determined the fact that defendant was wearing a stun belt without the knowledge of the judge or the prosecutor was not a mode of proceedings error. However questions remain about whether defendant received effective assistance of counsel (failure to object) remain and a hearing on the motion to vacate the conviction on that ground is required. The dissent argued the stun-belt-error constituted a mode of proceedings error requiring reversal:

It is undisputed that sheriff officials required defendant to wear a stun belt at trial, that neither the People nor the trial court were aware of that fact, and that defendant failed to preserve any argument concerning the stun belt. Because the trial court did not articulate a particularized need for defendant to wear a stun belt, the use of that restraint was error … . The courts below thus did not abuse their discretion by summarily denying the portion of defendant’s CPL 440.10 motion based on his unpreserved assertion of a Buchanan [13 NY3d 1] error, which could have been raised before the trial court.

The courts below erred by summarily denying the portion of defendant’s motion concerning his ineffective assistance of counsel claim. Given the conceded Buchanan violation, factual issues exist concerning trial counsel’s effectiveness. For instance, County Court should determine if counsel had a legitimate explanation for declining to object. There has been no hearing concerning whether defendant voiced his concerns about wearing the stun belt to his trial attorney as he contends … . Further, defendant submitted evidence in support of his motion which raises factual questions as to whether he consented to wearing the stun belt at trial … . Defendant’s ineffective assistance claim should be decided under the applicable standard … on a full record following a hearing … . People v Bradford, 2023 NY Slip Op 03187, CtApp 6-13-23

Practice Point: Before a defendant is required to wear a stun belt during trial, the judge must explain the reasons on the record. Here neither the judge nor the prosecutor was aware defendant was wearing a stun belt. The majority determined the belt did not constitute a mode of proceedings error. The two-judge dissent disagreed.

 

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