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A SEX OFFENDER MAY PETITION ANNUALLY FOR A MODIFICATION OF THE RISK LEVEL CLASSIFICATION; SUCH A PETITION IS NOT PRECLUDED BY PRIOR PETITIONS WITHIN A YEAR SEEKING OTHER RELIEF UNDER THE CORRECTION LAW (SECOND DEPT), ​

​The Second Department, reversing Supreme Court, noted that a sex offender can petition annually for a modification of the risk level classification, notwithstanding prior petitions within a year seeking other relief:

… [T]he petition … sought a downward modification of the defendant’s risk level classification. Pursuant to Correction Law § 168-o(2), any sex offender required to register or verify under SORA may petition annually for modification of his or her risk level classification … . As the defendant had not petitioned for a modification of his risk level classification within the prior year, he was not procedurally barred from seeking such relief in the instant petition. Therefore, upon receipt of the petition, the court should have followed the procedures set forth in Correction Law § 168-o(4) and conducted a hearing on the petition. People v Ghose, 2023 NY Slip Op 02021, Second Dept 4-19-23

Practice Point: A sex offender may petition annually for a modification of the risk level classification. Such a petition is not precluded by prior petitions within a year seeking other relief under the Correction Law.

 

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THE PROVISION OF MENTAL HYGIENE LAW SECTION 10 THAT ALLOWS A COURT TO DETERMINE WHETHER THERE IS PROBABLE CAUSE TO BELIEVE PETITIONER, WHO HAD BEEN RELEASED TO A STRICT AND INTENSIVE SUPERVISION AND TREATEMENT (SIST) REGIMEN, IS A DANGEROUS SEX OFFENDER REQUIRING CONFINEMENT IS NOT UNCONSTITUTIONAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this habeas corpus proceeding, determined the “provision of Mental Hygiene Law § 10.11(d)(4) that directs the court to determine whether there is probable cause to believe that a respondent in a proceeding pursuant to Mental Hygiene Law article 10 is a dangerous sex offender requiring confinement based upon a review of the allegations in a petition for confinement and any accompanying papers does not violate that respondent’s federal or state rights to due process.” The court further determined the issue raised here might recur so the appeal was not rendered moot by the petitioner’s release “to a regimen of strict and intensive supervision and treatment (… SIST):

Mental Hygiene Law § 10.11 permits the court to revoke a regimen of SIST upon a violation of SIST conditions and sets forth the required procedures for such a revocation … . The statute provides, as relevant here, that if a parole officer has “reasonable cause to believe” that a sex offender requiring SIST has violated a condition thereof, the offender can be taken into custody for five days for an evaluation by a psychiatric examiner, and the attorney general and the Mental Hygiene Legal Service (hereinafter MHLS) are to be promptly notified … . The attorney general may then file a petition for confinement within five days after the offender is taken into custody, which petition must be served promptly on MHLS, and counsel must be appointed for the offender … . If a petition for confinement is filed, “the court shall promptly review the petition and, based on the allegations in the petition and any accompanying papers, determine whether there is probable cause to believe that the [offender] is a dangerous sex offender requiring confinement” … . There is no provision permitting the offender an opportunity to be heard prior to the probable cause determination. Once the probable cause determination is made, the offender may be retained pending the conclusion of the proceeding … . “Within thirty days after a petition for confinement is filed . . . , the court shall conduct a hearing” to make a final determination, but the failure to commence the hearing within that time period does not result in dismissal of the petition or “affect the validity of the hearing or the determination” … . People ex rel. Neville v Toulon, 2023 NY Slip Op 02015, Second Dept 4-19-23

Practice Point; The provision of Mental Hygiene Law section 10 that allows a court to determine whether there is probable cause to believe petitioner, who had been released to a SIST regimen, is a dangerous sex offender requiring confinement is not unconstitutional.

Practice Point: Although at the time of this appeal in this habeas corpus proceeding petitioner had been released to a SIST regimen, the issue is likely to recur so the “exception to the mootness doctrine” doctrine was invoked.

 

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WHEN A JUVENILE PLEADS GUILTY TO AN OFFENSE FOR WHICH HE CANNOT BE HELD CRIMINALLY RESPONSIBLE, THE CONVICTION MUST BE VACATED AND DISMISSED (FIRST DEPT).

The First Department, vacating defendant’s conviction by guilty plea, determined that because defendant, a juvenile, cannot be held criminally responsible for the crime to which he pled guilty, the conviction must be vacated rather than sent to Family Court:

The People are correct that where a juvenile is charged with a crime for which he may not be criminally responsible, as well as others for which he may be criminally responsible, Supreme Court may assume jurisdiction over the case … . However, if convicted of a crime for which he cannot be criminally responsible, Supreme Court then “must order that the verdict be deemed vacated and replaced by a juvenile delinquency fact determination,” and remove the matter to Family Court … .

Here … defendant was convicted, by a plea of guilty to a crime to which he cannot be criminally responsible. This was not a case where a jury returned a verdict of guilty to the charge of criminal possession of a weapon in the second degree, thus requiring Supreme Court to transfer the case to Family Court for disposition … . Rather, the People specifically requested that in addition to the charge of attempted murder in the second degree, defendant enter a plea of guilty to the fifth count charging criminal possession of a weapon in the second degree, a crime for which the People now concede that defendant cannot be held criminally responsible. Given this, defendant’s conviction for criminal possession of a weapon in the second degree must be vacated and that charge dismissed. People v Raul A., 2023 NY Slip Op 01970, First Dept 4-18-23

Practice Point: If a juvenile goes to trial on offenses which include those for which a juvenile cannot be held criminally responsible, the court can assume jurisdiction over all the offenses. If convicted after trial of an offense for which a juvenile is not criminally responsible, the conviction is vacated and the matter is sent to Family Court for disposition. But if, as here, the conviction is by guilty plea it must be vacated and dismissed.

 

THE MURDER SECOND DEGREE COUNTS MUST BE DISMISSED AS INCLUSORY CONCURRENT COUNTS OF MURDER FIRST DEGREE (THIRD DEPT).

The Third Department determined the second degree murder counts must be dismissed as inclusory concurrent counts of defendant’s murder first degree convictions:

… [W]e agree with defendant’s contention that his convictions for second degree murder (counts 2 and 3) must be dismissed as inclusory concurrent counts of his convictions for murder in the first degree (counts 7, 8 and 9) (see CPL 300.40 [3] [b]). People v Burton, 2023 NY Slip Op 01919, Third Dept 4-13-23

Practice Point: Here the murder second degree convictions were reversed as inclusory concurrent counts of the murder first degree convictions.

 

THE SUPERIOR COURT INFORMATION (SCI) DID NOT AFFIRMATIVELY PLEAD THE EXCEPTION IN THE CRIMINAL MISCHIEF STATUTE; THEREFORE THE CRIMINAL MISCHIEF COUNT WAS JURISDICTIONALLY DEFECTIVE (THIRD DEPT).

The Third Department, reversing defendant’s criminal mischief conviction, determined the underlying statute includes an exception which must be affirmatively pleaded. The exception was not affirmatively pleaded in the Superior Court Information (SCI):

“In order to determine whether a statute defining a crime contains an exception that must be affirmatively pleaded as an element in the accusatory instrument or a proviso that need not be pleaded but may be raised by the accused as a bar to prosecution or a defense at trial, a court must look to the language of the statute itself” … . To that end, “legislative intent to create an exception that must be affirmatively pleaded has generally been found when the language of exclusion is contained entirely within a Penal Law provision” … . Penal Law § 145.05 (2) provides that “[a] person is guilty of criminal mischief in the third degree when, with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe that he or she has such right, he or she . . . damages property of another person in an amount exceeding [$250]” … . Inasmuch as the qualifying language is contained within the statute itself, we agree that such language constitutes an exception. Given that count 1 of the 2016 SCI did not allege that defendant had neither a right to cause the property damage at issue nor a reasonable ground to believe that she had such right, that count — charging defendant with criminal mischief in the third degree — is jurisdictionally defective … . People v West, 2023 NY Slip Op 01921, Third Dept 4-13-23

Practice Point: If a criminal statute includes language which is deemed an “exception,” the exception must be affirmatively pled. The failure to affirmatively plead an exception renders the count jurisdictionally defective.

 

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DEFENDANT’S ATTORNEY ESSENTIALLY FAILED TO TAKE ANY POSITION ON THE SORA RISK ASSESSMENT; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new SORA hearing, determined defendant did not receive effective assistance of counsel:

“A sex offender facing risk level classification under SORA has a right to the effective assistance of counsel” … . Here, the defendant’s counsel failed to provide “meaningful representation” … , as he “failed to litigate any aspect of the adjudication” … , essentially declining to take any position on the matter. People v Motta, 2023 NY Slip Op 01908, Second Dept, 4-12-23

Practice Point: A defense attorney who fails to take a position in the SORA risk-assessment proceedings does not provide effective assistance of counsel.

 

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DEFENDANT’S BURGLARY CONVICTION WAS BASED SOLELY ON A SODA CAN WITH HIS DNA ON IT; THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT). ​

The First Department determined the burglary conviction was against the weight of the evidence:

The verdict convicting defendant of a burglary of a doctor’s office that occurred in July 2015 was against the weight of the evidence … . Defendant was connected to this burglary solely through the presence of his DNA on an opened soda can in the reception area. The office manager’s testimony failed to address whether there was any innocent explanation for the presence of defendant, or of the soda can, at that location. … . People v Taylor, 2023 NY Slip Op 01848, First Dept 4-6-23

Practice Point: Defendant was convicted of the burglary of a doctor’s office based solely on the presence of a soda can with his DNA on it in the reception area. The testimony did not address whether there was an innocent explanation for the presence of the soda can. The conviction was against the weight of the evidence.

 

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WHEN DEFENDANT PLED GUILTY IN 2002 HE WAS NOT INFORMED OF THE PERIOD OF POST RELEASE SUPERVISION (PRS) AND HE DID NOT MOVE TO WITHDRAW THE PLEA IN 2010 WHEN PRS WAS ADDED TO HIS SENTENCE; DEFENDANT DID NOT WAIVE HIS RIGHT TO CONTEST THE CONSTITUTIONALITY OF THE 2002 CONVICTION RE: A PERSISTENT FELONY OFFENDER DESIGNATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant should have been allowed to contest the constitutionality of his 2002 conviction because he was not informed of the period of post release supervision (PRS) before he pled guilty. Defendant’s failure to move to withdraw the 2002 plea when he was resentenced in 2010 to add PRS to his sentence did not waive his right to claim prejudice in a challenge to the constitutionality of a predicate felony:

At the persistent violent felony offender proceeding in this case, defendant claimed that he would have gone to trial in the 2002 case had he known that PRS would ultimately be a consequence of his plea … . The sentencing court conducted a hearing on this claim, which included defendant’s testimony. After the hearing, the court expressly declined to rule on this claim of prejudice. Instead, the court ruled that defendant was barred from making such a challenge because he declined an opportunity to withdraw his 2002 plea when he was resentenced in 2010. However, that opportunity, offered when defendant had only weeks left to serve on the 8½ year sentence imposed in 2002, would not have provided a remedy for the constitutional defect that defendant is claiming, which is that he would not have pleaded guilty in 2002 had he known of the ultimate PRS component of his sentence. Accordingly, we find that defendant’s 2010 failure to withdraw the 2002 plea did not waive his right to claim prejudice in the context of a challenge to the constitutionality of a predicate felony, and we remand for a ruling on that claim. People v Graham, 2023 NY Slip Op 01852, First Dept 4-6-23

Practice Point: Defendant was not informed of the period of post release supervision (PRS) when he pled guilty in 2002 and did not move to withdraw his plea when PRS was added in 2010. Defendant did not waive his right to attack the constitutionality of the 2002 conviction in this persistent felony offender proceeding.

 

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BURGLARY AS A SEXUALLY MOTIVATED FELONY IS NOT AN ENUMERATED OFFENSE UNDER SORA, THEREFORE DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER; THE WAIVER OF APPEAL WAS INVALID (THIRD DEPT).

The Third Department determined defendant was not required to register as a sex offender because the offense to which he pled guilty, burglary as a sexually motivated felony, is not one of offenses to which SORA applies. In addition, the Third Department held defendant’s waiver of appeal was invalid:

… [W]e agree with the analysis of our colleagues in the First and Second Departments concluding that registerable offenses subject to SORA are, by application of the clear statutory text, limited to those crimes expressly identified as “[s]ex offense[s]” pursuant to Correction Law § 168-a (2) … . As burglary in the third degree as a sexually motivated felony is not among the offenses enumerated therein, we agree that defendant was improperly required to register as a sex offender pursuant to SORA … . …

During the plea colloquy, County Court did not explain that certain appellate rights would survive the waiver of appeal and instead improperly described the rights to be waived as encompassing “any argument” that defendant might take to a higher court … . The written waiver, in turn, states that “[i]t is [defendant’s] understanding and intention that [his] plea agreement and sentence will be a complete and final disposition of this case.” Although the written appeal waiver also includes qualifying language limiting its application “to all legal issues that can be waived under the law[,]” and the court confirmed that defendant had discussed the waiver with counsel … , we find that the “totality of the circumstances” presented here fails to confirm that defendant understood that some appellate review would survive the waiver … . People v Winter, 2023 NY Slip Op 01820, Third Dept 4-6-23

Practice Point: A defendant may not be required to register as a sex offender if convicted of a crime not listed in the Correction Law. Burglary as a sexually motivated felony is not listed.

Practice Point: The failure to inform the defendant that, despite the waiver of appeal, certain issues remain appealable, renders the waiver of appeal invalid.

 

THE RECORD DID NOT DEMONSTRATE THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT, A JURISDICTIONAL DEFECT (THIRD DEPT).

The Third Department, dismissing the superior court information, noted the record did not indicate the waiver of indictment was signed in open court, which is a jurisdictional defect:

A defendant “may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney” provided that “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 and contains a written waiver of indictment bearing the date of that appearance, which defendant and defense counsel acknowledged signing, 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 … , nor County Court’s undated order approving the waiver, indicates that the waiver was signed in open court … . In light of this jurisdictional defect, defendant’s guilty plea must be vacated and the superior court information must be dismissed …. People v Camlin, 2023 NY Slip Op 01821, Third Dept 4-6-23

Practice Point: If the record does indicate the waiver of indictment was signed in open court, the superior court information will be dismissed.

 

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