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THE JUDGE FAILED TO INQUIRE FURTHER DURING THE PLEA ALLOCUTION WHEN DEFENDANT SAID HE DID NOT VIOLATE THE ORDER OF PROTECTION INTENTIONALLY; THERE IS NO NEED TO PRESERVE A DEFECTIVE-ALLOCUTION ERROR; CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of an aggravated family offense by guilty plea, determined the judge should have inquired further when defendant stated he did not intend to violate the order of protection when he sent a letter to the protected person. A defective allocution will be considered on appeal in the absence of preservation:

… [A]fter acknowledging his awareness of the valid and effective order of protection directing him to have no contact with the protected person, defendant stated that he “didn’t intentionally violate” the order of protection by sending the protected person a letter and instead asserted that any violation “was unintentional.” Following an off-the-record discussion between defendant and defense counsel, defendant admitted that sending the letter did, in fact, violate the order of protection, but the court did not inquire, and defendant never clarified, whether his conscious objective was to disobey the order of protection … . Contrary to the People’s assertion, which “conflates the culpable mental states for acts done ‘intentionally’ … and those done ‘knowingly’ … , this is not a case in which defendant’s “further statements removed any doubt regarding th[e requisite] intent” … . People v Vanwuyckhuyse, 2023 NY Slip Op 00754, Fourth Dept 2-10-23

Practice Point: The defendant said he did not intend to violate the order of protection during the plea allocution and the judge did not make the required inquiry. An allocution error need not be preserved for appeal by moving to withdraw the plea. The conviction was reversed.

 

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HERE IT WAS REVERSIBLE ERROR TO PLACE THE DEFENDANT IN HANDCUFFS, WITHOUT EXPLANATION, BEFORE THE JURY RETURNED TO ANNOUNCE THE VERDICT; AT THAT POINT THE DEFENDANT IS CONSIDERED INNOCENT AND RESTRAINING THE DEFENDANT WITHOUT EXPLANATION IS CONSTITUTIONALLY PROHIBITED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the defendant should not have been handcuffed when the jury returned to announce the verdict: At that point the defendant is considered innocent and the defendant may be prejudiced if the jury is polled. Here defense counsel expressly objected to the handcuffs on those grounds:

… [T]he reading of the verdict is an integral part of the guilt-determination phase. … “[A] verdict reported by the jury is not final unless properly recorded and accepted by the court” … . Indeed, in accordance with CPL 310.80, the trial court must order the jury to resume deliberations when polling elicits a negative answer from one or more jurors. As a consequence, until the jury returns to the courtroom, publicly announces the verdict and, if polled, confirms the verdict, there is no finding of guilt, defendant is still presumed innocent, and the constitutional prohibition on restraining a defendant without explanation remains in full force. People v Sanders, 2023 NY Slip Op 00692, CtApp 2-9-23

Practice Point: Restraining a defendant during the guilt-determination phase of the trial in unconstitutional unless adequately explained. A defendant is considered innocent until the verdict is announced and the jury is polled. In this case it was deemed reversible error to place the defendant in handcuffs, without explanation, over defense counsel’s objection, before the jury returned with the verdict.

 

 

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THE ATTORNEY GENERAL’S OFFICE WAS MONITORING A WIRETAP WHEN DEFENDANT WAS OVERHEARD IN A CALL WHICH HAD ORIGINATED FROM THE COUNTY JAIL; LOCAL POLICE WERE ALERTED TO THE CONVERSATION AND THE POLICE OBTAINED THE RECORDING FROM THE JAIL; ALTHOUGH THE JAIL RECORDING WAS NOT AN “INTERCEPTED CONVERSATION” WITHIN THE MEANING OF CPL 700.70, IT WAS EVIDENCE DERIVED FROM AN “INTERCEPTED CONVERSTION” TRIGGERING THE CPL 700.70 NOTICE REQUIREMENTS (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the appellate division, determined the failure to provide defendant with notice of a recorded phone conversation was improper. The Attorney General’s office was monitoring a wiretap in an unrelated case when defendant was overheard in a call originating from the county jail talking about a fatal hit-and-run accident. Local police were informed of the defendant’s conversation and they obtained a recording of it made by the county jail. The jail recording, which was introduced at trial, was not an “intercepted conversation” within the meaning of Criminal Procedure Law 700.70. But the conversation overheard pursuant to the wiretap which alerted the police to the jail conversation was an “intercepted conversation” which triggered the CPL 700.70 notice:

The People produced the recording … to defendant in discovery but did not furnish defendant with a copy of the wiretap warrant and underlying application within the fifteen-day period prescribed by CPL 700.70. Several months after defendant was arraigned, the People informed defendant by letter that the police were “alerted” to the call by the wiretap. Defendant moved to preclude the call from evidence on the grounds that the People failed to adhere to the CPL 700.70 notice procedure. * * *

The substance of the wiretap recording informed law enforcement that the same conversation had been recorded by [jail], leading the Syracuse Police directly to the recording that the People used as evidence at defendant’s trial. In listening to the wiretap, a detective heard incriminating statements about the hit-and-run, identified defendant as the declarant, and directed authorities to the [jail] recording. Clearly, the [jail] call is evidence derived from the wiretap. … [I]t is not certain that police investigating the hit-and-run would otherwise have discovered the call—indeed, the inmate who placed the call had no apparent connection to the hit-and-run incident. Because the wiretap was an “intercepted communication,” the People’s failure to timely furnish defendant with a copy of the eavesdropping warrant and underlying application precluded the admission of the wiretap recording and any evidence derived therefrom—namely, the jail recording—into evidence at trial … . People v Myers, 2023 NY Slip Op 00691, CtApp 2-9-23

Practice Point: Recorded jail conversations are not considered “intercepted conversations” triggering the notice requirements of CPL 700.70. But here the police were alerted to the jail conversation by monitoring a wiretap in an unrelated case. Therefore the jail’s recording of the conversation was evidence derived from an “intercepted conversation” triggering the CPL 700.70 notice requirements.

 

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THE ADMISSION OF AN UNNOTICED STATEMENT BY DEFENDANT WAS NOT HARMLESS ERROR; ALTHOUGH THE PEOPLE HAD DISCLOSED THE INTERVIEW IN WHICH THE STATEMENT WAS MADE, THEY DID NOT DISCLOSE THE SPECIFIC STATEMENT; THE DEFENDANT MOVED TO PRECLUDE THE STATEMENT AT TRIAL (FIRST DEPT).

The First Department, reversing defendant’s convictions, determined the evidence defendant knew the codefendant was armed and shared the codefendant’s intent to cause serious injury was legally insufficient. Although the robbery second conviction was based on legally sufficient evidence, an unnoticed statement was allowed in evidence at trial, a reversible error:

… [D]efendant is entitled to a new trial on the second-degree robbery count. The People should not have been permitted to submit evidence of defendant’s August 9, 2016 statement to a detective regarding defendant’s discussion with the victim about the value of the latter’s jewelry because this statement was not properly noticed pursuant to CPL 710.30(1)(a). Although the People disclosed the interview generally, they did not disclose this particular statement … . At a suppression hearing, defendant only moved to suppress other statements not at issue on appeal, and the statement at issue was first revealed during trial testimony, at which time defendant moved for preclusion on the ground of lack of notice. People v Weathers, 2023 NY Slip Op 00741, First Dept 2-9-23

Practice Point: If the People attempt to introduce a statement made by the defendant which was not provided in the CPL 710.30 notice, and no motion to suppress the statement had been made, introduction of the statement at trial must be precluded. In this case, it was not enough that the People disclosed the interview from which the statement was taken. No notice of the specific statement had been provided.

 

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THE PEOPLE DID NOT MEET THEIR “BURDEN OF GOING FORWARD” BY PRESENTING SUFFICIENT PROOF OF THE LEGALITY OF POLICE CONDUCT AT THE SUPPRESSION HEARING; THERE WAS NO EVIDENCE THE OFFICERS WHO ARRESTED DEFENDANT WERE MADE AWARE OF THE CO-DEFENDANT’S STATEMENT WHICH WAS THE BASIS OF THE ARREST; THE FACT THAT GAPS IN THE PEOPLE’S PROOF MAY HAVE BEEN FILLED IN BY THE DEFENDANT’S TESTIMONY AT THE HEARING DIDN’T CURE THE DEFICIENCY (FIRST DEPT).

The First Department, reversing defendant’s conviction and suppressing his postarrest statement, determined the People did not meet their “burden of coming forward” with proof of the legality of police conduct. The fact that some of the gaps in the proof might have been filled by the defendant’s testimony at the suppression hearing did not cure the defect:

The People failed to submit evidence sufficient to support the suppression court’s findings, thus failing to meet their burden of coming forward … . Although the officers who arrested defendant were not required to testify, the People’s initial evidentiary presentation, consisting of the testimony of the investigating detective, was insufficient to permit the inference that information constituting probable cause was transmitted by the detective to the officers effectuating the arrest of defendant, as required to meet the People’s prima facie burden of establishing the legality of the challenged police conduct and shift the burden of persuasion to defendant … . Although defendant testified after the People rested, we need not consider whether defendant’s testimony before the suppression court could have been used to remedy deficiencies in the People’s presentation. As the People repeatedly informed the court, they relied solely on the detective’s testimony to meet their burden. Further, the suppression court discredited defendant’s testimony as “unworthy of belief” and based its decision to deny defendant’s motion to suppress solely on the testimony of the detective, which it credited. People v Watkins, 2023 NY Slip Op 00742, First Dept 2-9-23

Practice Point: The People have a burden of proof at a suppression hearing called the “burden of going forward.” To meet the burden the People was demonstrate the legality of the police conduct. Here there was no evidence the officers who arrested the defendant were aware of the statement by the codefendant which was the basis for the arrest. Therefore defendant’s postarrest statement should have been suppressed.

 

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THE PLEA ALLOCUTION RAISED THE POSSIBILITY OF DURESS AS AN AFFIRMATIVE DEFENSE; THE JUDGE MADE NO INQUIRY INTO THE VALIDITY OF PLEA; CONVICTION REVERSED DESPITE DEFENDANT’S FAILURE TO MOVE TO WITHDRAW THE PLEA (SECOND DEPT).

The Second Department, reversing defendant’s conviction by guilty plea, determined the plea allocution raised duress as a possible affirmative defense and the judge did not inquire into the validity of the plea. The issue was considered on appeal despite the failure to move to withdraw the plea:

To be valid, a plea of guilty must be entered voluntarily, knowingly, and intelligently … . Generally, a defendant must preserve for appellate review a challenge to the validity of a guilty plea … . When, however, a “defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea,” the court has a duty to inquire further to make sure that the defendant understands the nature of the charge and that the plea has been intelligently entered … . Where the court failed in its duty to inquire further, a defendant may raise a claim regarding the validity of the plea even without having moved to withdraw the plea … .

In this case, the defendant’s contention challenging the validity of his plea of guilty is unpreserved for appellate review since he did not move to withdraw his plea or otherwise raise that issue prior to the imposition of sentence … . However, the County Court’s failure to inquire into the validity of the plea after the defendant’s allocution raised the possibility of an affirmative defense based on duress (see Penal Law § 40.00) permits the defendant to challenge the sufficiency of the allocution on direct appeal, and requires reversal of the judgment of conviction … . People v Rodriguez, 2023 NY Slip Op 00678, Second Dept 2-8-23

Practice Point: Here the defendant’s allocution raised the possibility he had duress as an affirmative defense but the judge made no inquiry into the validity of the plea. Despite the defendant’s failure to preserve the error by moving to withdraw the plea, the appellate court reversed his conviction.

 

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AFTER COMPLAINING THAT A JUROR APPEARED TO BE SLEEPING AT TIMES, DEFENSE COUNSEL MADE A MOTION TO DISQUALIFY HIM; THE JUDGE DID NOT MAKE AN ADEQUATE INQUIRY BEFORE DENYING THE MOTION; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the judge did not make a sufficient inquiry of juror number 2 after complaints from defense counsel and the prosecutor that he appeared to be sleeping at times. The judge’s denial of the defense motion to disqualify the juror was therefore based on speculation:

The court never asked juror number two during any of the inquiries if he had fallen asleep or was sleepy. During the third inquiry, the court did not ask juror number two about defense counsel’s specific observations, including that juror number two had allegedly put his head back with his eyes closed and his mouth dropped. The court also failed to ask juror number two what he meant by his equivocal statement that he “[m]ore or less” understood the jury charge, or to ask if there were any specific portions of the jury charge that juror number two did not understand. Although the court did state at one point that “[w]e have not seen [juror number two] sleeping,” the statement, in context, indicates that the court was correcting defense counsel’s misstatement, rather than making its own observation. Likewise, a statement by a court officer that he had not observed juror number two sleeping was not determinative in this case because defense counsel’s assertion that the officer was seated behind juror number two was uncontradicted … . Since the court failed to ask during the third inquiry whether juror number two had fallen asleep during the jury charge, whether he had difficulty staying awake, or about any of defense counsel’s specific observations, its determination that juror number two was not grossly unqualified to serve was based on speculation … . People v Mentor, 2023 NY Slip Op 00677, Second Dept 2-8-23

Practice Point: When it appears a juror has been sleeping at times and a motion to disqualify the juror is made, the judge must make a sufficient inquiry before ruling on the motion. Here the denial of the motion to disqualify was not preceded by a sufficient inquiry and defendant’s conviction was reversed.

 

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THE JUDGE’S FAILURE TO INFORM DEFENDANT OF POSTRELEASE SUPERVISION RENDERED DEFENDANT’S ADMISSION TO A PROBATION VIOLATION INVALID; THE ISSUE WAS CONSIDERED ON APPEAL DESPITE THE ABSENCE OF A MOTION TO WITHDRAW THE ADMISSION (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the judge’s failure to inform defendant of postrelease supervision rendered the admission invalid. The issue may be raised on appeal despite the absence of a motion to withdraw the plea:

Defendant contends that his admission was not knowing, voluntary and intelligent because County Court failed to inform him at any time that he would be subject to postrelease supervision if the court sentenced him to prison. We agree. The People contend that defendant’s challenge to the voluntariness of his admission is not preserved for our review, inasmuch as he failed to move to withdraw his admission, but we reject that contention. Although defendant pleaded guilty to a probation violation, as opposed to a crime, “where a trial judge does not fulfill the obligation to advise a defendant of postrelease supervision during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a postallocution motion” … . People v Bell, 2023 NY Slip Op 00594, Fourth Dept 2-3-23

Practice Point: Here the judge did not inform the defendant of postrelease supervision before he admitted to a probation violation. The admission was reversed on appeal despite the absence of a motion to withdraw the admission.

 

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BASED ON THE PEOPLE’S THEORY, THE JURY SHOULD NOT HAVE BEEN INSTRUCTED POSSESSION OF A WEAPON IS PRESUMPTIVE EVIDENCE OF AN INTENT TO USE IT UNLAWFULLY AGAINST ANOTHER; DEFENDANT’S REQUEST TO CALL A WITNESS SHOULD NOT HAVE BEEN DENIED; DEFENDANT’S REQUEST FOR $1000 TO HIRE A PSYCHIATRIC EXPERT SHOULD NOT HAVE BEEN DENIED; NEW TRIAL ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction, determined the judge (1) should not have instructed the jury that possession of a weapon is presumptive evidence of an intent to use it unlawfully against another (2) should not have prevented defendant from calling as a witness a nurse practitioner who treated him at a psychiatric facility and (3) should have granted defendant’s request pursuant to the County Law for $1000 to hire a psychiatric expert:

County Court erred in charging the jury with respect to the presumption set forth in Penal Law § 265.15 (4) concerning the possession of weapons, i.e., that the possession by any person of any weapon is presumptive evidence of intent to use the same unlawfully against another. Pursuant to the statute, that presumption applies only where the defendant possesses the weapon in question (see Penal Law § 265.15 [4] …). Here, the People did not proceed on any theory that defendant had possession of the weapon at issue. … .

… [T]he court abused its discretion by precluding defendant from calling a proposed witness at trial, namely, a nurse practitioner who treated him at the Mohawk Valley Psychiatric Center prior to the incident, on the grounds that her testimony was not relevant and that defendant failed to give timely notice under CPL 250.10 (1) (c). It is well settled that “[a criminal] defendant has a fundamental right to call witnesses in his [or her] own behalf” … . Here, defendant established that the proposed witness would have provided relevant testimony with respect to his defense and also established good cause for the delay in the notice, and the People failed to establish any prejudice … .

“Pursuant to County Law § 722-c, upon a finding of necessity, a court shall authorize expert services on behalf of a defendant, and only in extraordinary circumstances may a court provide for compensation in excess of $1,000 per expert” … . Here, we conclude that the court abused its discretion by denying defendant’s application on the sole ground that defendant had a retained attorney … . People v Osman, 2023 NY Slip Op 00581, Fourth Dept 2-3-23

Practice Point: Based on the People’s theory the jury should not have been instructed that possession of weapon is presumptive evidence of an intent to use it unlawfully against another. The defendant’s request to call a witness who could offer relevant evidence should not have been denied where the delay in notification was explained and there was no prejudice. The defendant’s request pursuant to the County Law for $1000 to hire a psychiatric expert should have been granted.

 

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THE CORRECTION LAW REQUIRING A SEX OFFENDER TO VERIFY HIS OR HER ADDRESS EVERY NINETY DAYS IS VOID FOR VAGUENESS AS APPLIED TO HOMELESS SEX OFFENDERS (FIRST DEPT). ​

The First Department, vacating defendant’s guilty pleas, in a full-fledged opinion by Justice Renwick, determined the Correction-Law requirement that a sex offender verify his or her address every 90 days is void for vagueness as applied to homeless sex offenders:

… [T]he question is whether the reporting requirements of Correction Law § 168-f(3) provided sufficient notice to defendant of what conduct was mandated by the statute when he left his previous residence address, a homeless shelter, but possessed no new permanent or temporary residence with an address. According to its plain language, Correction Law § 168-f(3) mandates that offenders register a change of residence by providing a specific new “address.” The statute, however, contains no objective standard or guidelines that would put homeless sex offenders without an address on notice of what conduct is required of them. Under these circumstances, such transient offenders can only guess at what is meant by the requirement that they register their new “address.” Similarly, the change of address reporting requirement fails to provide even minimal guidelines for the registering authorities in these regards, thus encouraging arbitrary enforcement. People v Allen, 2023 NY Slip Op 00496, First Dept 2-2-23

Practice Point: The Correction Law requiring a sex offender to verify his or her address every ninety days is void for vagueness as applied to homeless sex offenders.

 

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