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EVEN WHERE A SENTENCE HAS BEEN AGREED TO BY THE DEFENDANT AS PART OF A PLEA BARGAIN, AN INTERMEDIATE APPELLATE COURT IS OBLIGATED TO CONSIDER WHETHER THE SENTENCE IS UNDULY HARSH OR SEVERE, SEPARATE AND APART FROM WHETHER THE SENTENCE IS LEGAL (CT APP).

The Court of Appeals, in two concurring opinions, determined the matter should be sent back to the Appellate Term for consideration of defendant’s argument his plea-bargained sentence (a $500 fine) was unduly harsh or severe. An appellate court’s power to reduce an unduly harsh or severe sentence can be applied, even when the sentence was part of a plea bargain:

The Appellate Term concluded that there was “no basis for reducing the fine” … . Although the Court was not required to go further and set forth the basis for its conclusion (see CPL 470.25 [1] …), here, it did so, reasoning that “[d]efendant received the precise sentence for which he had bargained, which was within the permissible statutory range” …  . In other words, the sentence was legal and bargained-for. Certainly, the Appellate Term cannot be faulted for considering and addressing the legality of the sentence because the intermediate appellate courts “cannot allow an illegal sentence to stand” … . However, the legality of the sentence was irrelevant to the entirely separate issue of whether it was unduly harsh or severe … , and it was improper for the Appellate Term to treat the bargained-for nature of defendant’s sentence as dispositive of his challenge to the severity of the sentence. People v Ba, 2023 NY Slip Op 01468, CtApp 3-21-23

Practice Point: An intermediate appellate court is constrained to consider whether a sentence is unduly harsh or severe, even where the sentence was agreed to by the defendant as part of a plea bargain.

 

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THE THIRD DEPARTMENT HAS BEEN APPLYING THE WRONG STANDARD TO THE REDUCTION OF A SENTENCE IN THE INTEREST OF JUSTICE FOR DECADES; HOWEVER, BECAUSE THE THIRD DEPARTMENT HAS RECENTLY STOPPED APPLYING THE WRONG STANDARD, THIS APPEAL IS MOOT (CT APP),

The Court of Appeals determined the sentencing issue raised by the defendant (Baldwin) was moot. Judge Wilson, in a concurring opinion, explained that the standard applied by the Third Department for reduction of a sentence in the interest of justice is incorrect:

The question presented on this appeal is whether, for the past several decades, the Third Department has imposed an erroneous legal standard on criminal defendants seeking a reduction of their sentences in the interest of justice. Mr. Baldwin points to countless Third Department cases, including his own, in which the Third Department employed a test requiring a showing of extraordinary circumstances or abuse of discretion for it to exercise its interest of justice jurisdiction to modify a sentence. Relying on the statutory language empowering the Appellate Division to reduce “unduly harsh or severe” sentences in the interest of justice (CPL 470.15 [6] [b]), Mr. Baldwin contends that the Third Department’s test constitutes an incorrect legal standard.

Mr. Baldwin argues that the Third Department’s requirement that a defendant show a clear abuse of discretion or extraordinary circumstances is contrary to both our case law and the practices of the other Appellate Division departments. In People v Delgado, we emphasized that the Appellate Division’s “broad, plenary power to modify a sentence may be exercised, if the interest of justice warrants, without deference to the sentencing court” (80 NY2d 780, 780 [1992]). Mr. Baldwin contends that the Third Department’s standard is an outlier: it is used by no other department, and has been expressly rejected by the Fourth Department (see eg People v Thomas, 194 AD3d 1405, 1406 [4th Dept 2021] [“We are compelled to emphasize once again that, contrary to the People’s assertion, a criminal defendant need not show extraordinary circumstances or an abuse of discretion by the sentencing court in order to obtain a sentence reduction under CPL 470.15 (6) (b)”] [internal quotations omitted]).

Here, however, as Mr. Baldwin himself points out, the issue is not likely to recur. The Third Department, to its great credit, apparently noticed the pendency of this appeal and the issue it raised, after which it corrected its longstanding use of the wrong standard, making repetition of the error unlikely … . People v Baldwin, 2023 NY Slip Op 01467, CtApp 3-21-23

Practice Point: The Third Department had been using the wrong standard for the reduction of a sentence in the interest of justice for decades but has recently corrected the problem, rendering this appeal moot.

 

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FLIGHT ALONE DID NOT JUSTIFY THE PURSUIT AND SEARCH OF DEFENDANT IN A STREET STOP (FOURTH DEPT).

The Fourth Department determined that a .22 caliber magazine found in defendant’s pocket in a street stop should have been suppressed. Although the defendant fled, that alone was not enough to justify the search and seizure:

… [T]he police witness testified that he received a report that two black males wearing dark clothing had fled the scene of an armed robbery. Soon after receiving the report, while driving in the vicinity of the incident, the officer observed two individuals in dark clothing, who fled as soon as the officer stopped his vehicle. The officer could not determine the gender or race of the individuals as he approached because they were facing away from him. Assuming, arguendo, that police lawfully approached defendant and the second individual to request information about the robbery … , we conclude that the subsequent pursuit of defendant was unlawful. The officer’s testimony did not establish that he determined that the individuals matched the sex or race of the robbery suspects before he undertook pursuit, and the evidence was therefore insufficient to demonstrate that the officer had ” ‘a reasonable suspicion that defendant ha[d] committed or [was] about to commit a crime’ ” … . Although defendant ran from the officer, “[f]light alone is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry” … . People v Austin, 2023 NY Slip Op 01442, Fourth Dept 3-17-23

Practice Point: The flight of someone approached by the police on the street, standing alone, is not enough to justify a pursuit, seizure and search of the person.

 

DEFENDANT WAS CONVICTED OF GRAND LARCENY BASED UPON OVERCHARGING HER EMPLOYER; THE RESTITUTION SHOULD NOT HAVE INCLUDED THE LABOR COSTS INCURRED BY THE EMPLOYER FOR INVESTIGATING THE CRIME OR THE TRAVEL COSTS FOR WITNESSES TO TESTIFY AT TRIAL; THE FOURTH DEPARTMENT REFUSED TO FOLLOW A THIRD DEPARTMENT DECISION RE: TRAVEL EXPENSES AND LOST WORK ASSOCIATED WITH TESTIFYING AT TRIAL (FOURTH DEPT).

The Fourth Department determined restitution in this grand larceny case should not include the victim’s (HomeCare”s) labor costs associated with investigating the defendant’s theft or the travel expense of witnesses who testified at trial:

Defendant was charged with grand larceny … after HomeCare conducted an audit of her time sheets and mileage vouchers and determined that she had received more than $14,000 in overpayments during the course of her employment as a registered nurse. …  … County Court … determined that HomeCare and its insurance carrier were entitled to restitution in the amount of $24,469.10 …: $14,207.67 for overpayments made to defendant in wages and mileage reimbursements … , $9,658.02 to HomeCare for labor costs incurred with respect to its employees who investigated defendant’s crime and appeared at her trial; and $603.41 to HomeCare for mileage, meal and hotel expenses incurred by its employees who appeared at trial.

We conclude that the labor costs allegedly incurred by HomeCare for employees who investigated the crime are not “actual out-of-pocket” losses within the meaning of Penal Law § 60.27. … With respect to the travel expenses incurred by HomeCare employees who appeared at defendant’s trial, we note that … section 60.27 does not impose a duty on the defendant to pay for the costs associated therewith inasmuch as such expenses are not directly caused by the defendant’s crime. …

The People rely on People v Denno (56 AD3d 902, 903-904 …), where the Third Department determined that the sentencing court did not improvidently exercise its discretion when it ordered that the defendant pay reparations to the victim’s mother to cover the expenses of traveling by airplane from Florida to New York to speak at sentencing, and to cover the lost wages caused by missing four days of work. … [W]e do not follow Denno because we do not read Penal Law § 60.27 as requiring a criminal defendant to pay for expenses incurred by the victim to testify at trial or investigatory costs incurred by the victim. People v Case, 2023 NY Slip Op 01438, Fourth Dept 3-17-23

Practice Point: Here the defendant was convicted of grand larceny for overcharging her employer. The restitution should not have included the employer’s labor costs associated with investigating the crime or the travel expenses for witnesses who testified at trial. Re: the costs incurred by witnesses who testified at trial, the Fourth Department refused to follow the Third Department.

 

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THE EVIDENCE OF “PHYSICAL INJURY” IN THIS ASSAULT SECOND PROSECUTION WAS LEGALLY INSUFFICIENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s second degree assault conviction, determined the physical-injury element of the offense was not supported by legally sufficient evidence:

… [T]he evidence of the injury inflicted here, viewed objectively, established only that the correction officer sustained slight scraping and scratching, perhaps some bruising, minor swelling in the wrist, a small laceration, and abrasions or redness, without any bleeding … . Indeed, although medical staff at the correctional facility purportedly noted bruising on the correction officer’s forearm, no bruising is apparent in the photographs taken shortly after the incident, and the photographs otherwise depict only minimal redness on the correction officer’s arm and hand, a minuscule nick on the knuckle of his index finger, and a slight scratch along his arm … . People v Dowdell, 2023 NY Slip Op 01432, Fourth Dept 3-17-23

Practice Point: Here the evidence of “physical injury” was deemed legally insufficient to support the assault second conviction. The decision analyzes all of the relevant aspects of “physical injury” including pain.

 

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IF A PREMATURE CERTIFICATE OF COMPLIANCE WITH DISCOVERY OBLIGATIONS WAS NOT FILED IN GOOD FAITH, THE STATEMENT OF READINESS FOR TRIAL IS ILLUSORY; MATTER REMITTED FOR A DETERMINATION WHETHER THE CERTIFICATE WAS FILED IN GOOD FAITH; THE JUDGE CONSIDERED ONLY WHETHER DEFENDANT WAS PREJUDICED BY THE POST-CERTIFICATE PRODUCTION OF DISCOVERY (FOURTH DEPT). ​

The Fourth Department, remitting the matter, found the judge applied the wrong criteria for determining whether the People’s premature filling of the certificate of compliance with discovery obligations (CPL 245.50) rendered the ready-for-trial announcement illusory:

… [T]he criminal action was commenced on June 9, 2021 (see CPL 1.20 [17]). The People filed their certificate of compliance and statement of readiness on August 6, 2021. On February 12, 2022, defendant moved to dismiss the indictment on speedy trial grounds, arguing that the People’s failure to provide all of the discovery required by CPL 245.20 rendered the certificate of compliance improper and the statement of readiness illusory. Defendant argued that the People should be charged with the entire eight month period and that the indictment should be dismissed (see CPL 30.30 [1] [a]). The court denied defendant’s motion, concluding that the People’s certificate of compliance was proper because defendant had not been prejudiced by the People’s belated disclosure of certain required discovery and that the statement of readiness therefore was not illusory.

… [T]he court’s use of a prejudice-only standard for evaluating the propriety of the certificate of compliance was error because the clear and unambiguous terms of CPL 245.50 establish that a certificate of compliance is proper where its filing is “in good faith and reasonable under the circumstances” … . On a CPL 30.30 motion, the question is not whether defendant was prejudiced by an improper certificate of compliance … . … In light of the court’s failure to consider whether the People’s certificate of compliance was filed in “good faith and reasonable under the circumstances” despite the belated discovery, we hold the case, reserve decision, and remit the matter to Supreme Court to determine whether the People’s certificate of compliance was proper under the terms of CPL 245.50 and thus whether the statement of readiness was valid. People v Gaskin, 2023 NY Slip Op 01415, Fourth Dept 3-17-23

Practice Point: If the People file a certificate of compliance with discovery obligations before discovery is complete the readiness-for-trial statement may be rendered illusory. The judge must determine whether the certificate was filed in good faith, not whether defendant was prejudiced by the post-certificate discovery.

 

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THE JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION IN THIS CRIMIINAL POSSESSION OF A WEAPON PROSECUTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and ordering a new trial, determined the jury should not have been instructed on constructive possession in this criminal possession of a weapon prosecution:

… [W]e agree with defendant that the court erred in instructing the jury on constructive possession because there is no view of the evidence from which a jury could have concluded that defendant constructively possessed the handgun on the night in question—i.e., that he exercised dominion or control over the handgun by a sufficient level of control over the area where it was recovered … . We further conclude that the error is not harmless inasmuch as we cannot determine whether the jury’s general verdict was based upon defendant’s actual possession of the handgun or his constructive possession of it … . People v Ross, 2023 NY Slip Op 01381, Fourth Dept 3-17-23

Practice Point: Here is was deemed reversible error to instruct the jury on construction possession of a weapon because there was no evidence defendant exercised control over the area where the weapon was found.

 

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THE PEOPLE DID NOT DEMONSTRATE THE OFFICERS WHO MADE THE TRAFFIC STOP HAD THE TRAINING AND QUALIFICATIONS TO MAKE A VISUAL ESTIMATE OF THE SPEED OF A VEHICLE; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT),

The Fourth Department, granting the suppression motion and dismissing the indictment, over a dissent, determined the People did not demonstrate the legality of the traffic stop. Two police officers testified the stop was based on a visual estimate of the vehicle’s speed, 40 to 45 miles per hour in a 30 mph zone. But neither officer had any training in making visual speed estimates:

It is undisputed that the officers did not use radar at any point, nor did they pace the vehicle—i.e., follow it at a consistent distance—to confirm their visual estimates before initiating the stop. When questioned regarding their training to visually estimate a vehicle’s speed without pacing, one officer stated that he did not recall receiving such training, and the other testified that he did not believe such training existed. On further questioning, one of the officers testified that he had experience visually estimating speed due to the amount of time he spent on the road as a patrol officer, but failed to provide a reasoned explanation of how the time he spent driving on city streets enabled him to acquire the ability to visually estimate speed.

… [T]he People failed to establish the officers’ training and qualifications to support their visual estimates of the speed of the vehicle in which defendant was a passenger … . … [I]nasmuch as the People failed to meet their burden of showing the legality of the police conduct in stopping the vehicle in which defendant was a passenger in the first instance, we conclude that the court erred in refusing to suppress the physical evidence seized as a result of the traffic stop. People v Suttles, 2023 NY Slip Op 01380, Fourth Dept 3-17-23

Practice Point: Here the traffic stop was based on the officers’ visual estimate of speed (40 to 45 mph in a 30 mph zone). At the suppression hearing no evidence of the officers’ training or qualifications re: a visual speed estimate was presented. The People, therefore, did not prove the legality of the traffic stop.

 

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HERE THE DEFENDANT CLAIMED HE ACTED IN SELF-DEFENSE WHEN HE STABBED THE VICTIM WITH A PEN KNIFE; THE DEFENDANT SOUGHT TO INTRODUCE EVIDENCE OF THE VICTIM’S PRIOR VIOLENT ACTS IN SUPPORT OF THE JUSTIFICATION DEFENSE; THE TRIAL JUDGE INSTRUCTED THE JURY ON THE JUSTIFICATION DEFENSE BUT DID NOT ALLOW EVIDENCE OF THE VICTIM’S PRIOR VIOLENT ACTS TO BE CONSIDERED ON THAT ISSUE; THE COURT OF APPEALS AFFIRMED, UPHOLDING THE RULE THAT THE VICTIM’S PRIOR VIOLENT ACTS ARE NOT ADMISSIBLE PROOF OF JUSTIFICATION UNLESS THE DEFENDANT WAS AWARE OF THE PRIOR VIOLENT ACTS AT THE TIME OF THE INCIDENT (CT APP).

The Court of Appeals, over a two-judge dissenting opinion, affirming defendant’s conviction, determined the rule that evidence of a victim’s prior violent acts should not be admitted in support of the justification defense unless defendant was aware of those prior violent acts at the time of the incident. Here there was evidence the victim had four youthful offender adjudications in which the victim acted violently. The defendant stabbed the victim with a pen knife and claimed the victim was attacking him with a broken beer bottle. The trial judge instructed the jury on the justification defense:

Defendant stabbed the victim in the chest with a small knife, causing life-threatening injuries. At trial, the court determined that defendant was entitled to raise a justification defense. Defendant sought to introduce evidence of the specific violent conduct underlying four of the victim’s prior youthful offender adjudications to prove that the victim was the initial aggressor with respect to deadly physical force … . Supreme Court, in accordance with Miller, prohibited the jury from considering that evidence for that purpose. The Appellate Division affirmed … .

“Youthful Offender status provides youth four key benefits: relief from [a] record of a criminal conviction, reduced sentences, privacy from public release of the youth’s name pending the Youthful Offender determination on misdemeanor offenses only, and confidentiality of the Youthful Offender record” (Report of the Governor’s Commission on Youth, Public Safety, and Justice 135 [2014]). Youthful offender designations are given to those who have “a real likelihood of turning their lives around,” and the protection gives these individuals “the opportunity for a fresh start, without a criminal record” … . Given these policy concerns, we see no reason to revisit the Miller rule in this case. People v Guerra, 2023 NY Slip Op 01352, CtApp 3-16-23

Practice Point: Where the defendant raised the justification defense, proof of prior violent acts by the victim is not admissible unless the defendant was aware of them at the time of the incident (not the case here).

 

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THE UNEXPLAINED DELAY OF 38 MONTHS IN SEEKING A WARRANT FOR A DNA SAMPLE FROM THE DEFENDANT, WHO HAD BEEN IDENTIFIED AS THE RAPIST BY THE COMPLAINANT RIGHT AWAY, VIOLATED DEFENDANT’S RIGHT TO A SPEEDY TRIAL; CONVICTION REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a dissenting opinion, reversing the Appellate Division, determined that the inexplicable delay in seeking a DNA sample from the defendant in this rape case violated defendant’s right to a speedy trial. The complainant reported the rape right away and named the defendant as the perpetrator. The defendant denied having sex with the complainant and refused to voluntarily provide a DNA sample. 38 months later the People applied for and were granted a warrant for the DNA sample. Defendant was convicted after a trial. The majority opinion went through the Taranovich (37 NY2d 442) pre-indictment-delay factors:

“Generally when there has been a protracted delay, certainly over a period of years, the burden is on the prosecution to establish good cause” … . It has not established good faith in this case. Here, 24 months are wholly unexplained by the record or any of the People’s papers in this matter and 7 months at a point late in the timeline are flimsily justified as necessary to decide the case required DNA evidence and then figure out how to get DNA evidence from defendant. The People’s own submissions demonstrate the emptiness of the claim that the police and the People did not know how to obtain defendant’s DNA and could not have figured it out sooner: not only did the assigned ADA obtain guidance on the warrant process in November of 2010—two years before the People filed their ultimately successful warrant application—but the investigator who eventually prepared the warrant application managed to figure out the procedure in part of a day. Indeed, our own case law dating back to at least 1982 provides the needed guidance on how to address this routine legal matter … . People v Regan, 2023 NY Slip Op 01353, CtApp 3-16-23

Practice Point: Although much longer pre-indictment delays have been excused, here the unexplained 38-month delay in applying for a warrant for a DNA sample from the defendant, who had been identified right away as the rapist by the complainant, violated defendant’s right to a speedy trial requiring reversal of the rape conviction.

 

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