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THIS FAMILY OFFENSE PROCEEDING WAS REMITTED TO FAMILY COURT; APPELLATE REVIEW WAS NOT POSSIBLE IN THE ABSENCE OF FINDINGS OF FACT ADDRESSING CONFLICTING EVIDENCE AND THE CREDIBILITY OF WITNESSES (SECOND DEPT).

The Second Department, remitting the matter to Family Court in this family offense proceeding, noted that appellate review was impossible without findings of fact:

The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court, and that court’s determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record … .

Effective appellate review requires that appropriate factual findings be made by the hearing court since it is the court best able to measure the credibility of the witnesses … . In granting or denying a petition for an order of protection, the Family Court must state the facts deemed essential to its determination (see CPLR 4213[b] … ). Remittal is not necessary, however, where the record is sufficient for this Court to conduct an independent review of the evidence … .

Here, the Family Court, which was presented with sharply conflicting accounts by the parties regarding their allegations, issued mutual orders of protection without setting forth any findings with respect to the credibility of the parties or the facts deemed essential to its determinations (see CPLR 4213[b]). Since the record presents factual issues, including questions of credibility, and in light of the conflicting allegations made by the parties against each other, resolution thereof is best left to the court of first instance … . Matter of Sealy v Peart, 2023 NY Slip Op 02128, Second Dept 4-26-23

Practice Point: Here in this family offense proceeding appellate review was not possible because the Family Court judge did not make any findings addressing conflicting evidence and the credibility of witnesses. The matter was remitted because the record was not sufficient for an independent review.

 

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BURGLARY AS A SEXUALLY MOTIVATED FELONY IS NOT A REGISTRABLE OFFENSE UNDER SORA; THE JUDGMENT REQUIRING DEFENDANT TO REGISTER AS A SEX OFFENDER VACATED (THIRD DEPT).

The Third Department determined burglary as a sexually motivated felony is not a registrable offense under SORA:

… [W]e agree with defendant, as well as the People’s concession, that burglary in the second degree as a sexually motivated felony is not a registerable offense under SORA because it is not expressly identified as a “[s]ex offense” pursuant to Correction Law § 168-a (2) (a) … .

… [T]he judgment is modified, on the law, by vacating the provisions thereof certifying defendant as a sex offender pursuant to the Sex Offender Registration Act and requiring him to register as a sex offender and pay the related sex offender registration fee … . People v Vakhoula, 2023 NY Slip Op 02034, Third Dept 4-20-23

Practice Point: Burglary as a sexually motivated felony is not a registrable offense under SORA. Conviction does not require registration as a sex offender.

 

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THE BRAKES FAILED ON A LIMOUSINE OWNED BY PETITIONER AND 20 PEOPLE DIED; PETITIONER PLED TO 20 COUNTS OF CRIMINALLY NEGLIGENT HOMICIDE AND, PURSUANT TO A PLEA AGREEMENT, WAS SENTENCED TO PROBATION AND COMMUNITY SERVICE; BECAUSE OF A TECHNICAL DEFECT IN THE SENTENCE, PETITIONER APPEARED FOR RESENTENCING BEFORE A DIFFERENT JUDGE WHO DECIDED TO IMPOSE PRISON TIME; PETITIONER WITHDREW HIS PLEA, THE MATTER WAS SET FOR TRIAL AND PETITIONER BROUGHT THIS ARTICLE 78 PROCEEDING TO REINSTATE THE ORIGINAL SENTENCE; THE PETITION WAS DENIED OVER A DISSENT (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Ceresia, over a dissent. denied the petition to reinstate the original sentence in the prosecution of the owner of a limousine service. The brakes failed on one of petitioner’s limousines and the driver, 17 passengers and two pedestrians were killed. Petitioner pled guilty to 20 counts of criminally negligent homicide and was sentenced to two years of interim probation, community service, followed by a period of probation. When it was discovered that the two-year interim probation was illegal, petitioner appeared before a different judge for resentencing, the respondent in this proceeding. The respondent refused to abide by the plea agreement and informed the petitioner he would impose a prison sentence. Petitioner withdrew his plea and the case was set down for trial. Petitioner then brought this Article 78 petition seeking a writ of mandamus, a writ of prohibition and specific performance of the plea agreement. In a complex ruling too detailed to fairly summarize here, the relief was denied. The dissenter argued petitioner was entitled to specific performance of the plea agreement:

Mandamus to compel is an extraordinary remedy, commanding “an officer or body to perform a specified ministerial act that is required by law to be performed. It does not lie to enforce a duty that is discretionary” … . * * *

“… [I]mposing a criminal sentence is never ministerial” … . * * *

… [A] review of the merits leads us to conclude that the issuance of a writ [of prohibition] is unwarranted … . A “defendant [is not] entitled to specific performance of [a] plea bargain unless he [or she has] been placed in a ‘no-return position’ in reliance on the plea agreement” … . Matter of Hussain v Lynch, 2023 NY Slip Op 02049, Third Dept 4-20-23

Practice Point: This opinion should be consulted for the criteria for a writ of mandamus versus a writ of prohibition in the context of requiring a judge to abide by a plea agreement.

 

A SUPERIOR COURT INFORMATION (SCI) FILED AFTER INDICTMENT IS A NULLITY (CT APP).

​The Court of Appeals noted that a superior court information (SCI) filed after indictment is a nullity:

A defendant may waive their constitutional right to grand jury presentment and indictment and proceed by SCI in accordance with the strict technical requirements of CPL 195.10 (2). Here, the SCI was filed after the grand jury indicted defendant and thus the SCI failed to comply with the statutory prerequisites. Accordingly, the SCI is a nullity and was properly dismissed (see CPL 195.10 [2] …). People v Solomon, 2023 NY Slip Op 02030, CtApp 4-20-23

Practice Point: A superior court information (SCI) filed after indictment is a nullity.

 

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TEXT EXCHANGES WITH AND PHOTOGRAPHS OF THE RAPE AND SEXUAL-ABUSE VICTIM DELETED BY DEFENDANT FROM HIS CELL PHONE AND SUBSEQUENTLY RECOVERED DO NOT CONSTITUTE “NEWLY DISCOVERED” EVIDENCE WHICH WILL SUPPORT A MOTION TO VACATE THE CONVICTION (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge dissent, determined defendant’s motion to vacate his conviction based on newly discovered evidence was properly denied without a hearing. Defendant was convicted of multiple counts of rape and sexual abuse of the fifteen-year-old victim. The newly discovered evidence was deleted by the defendant and subsequently recovered on defendant’s cell phone:

… [T]he evidence proffered is far from newly discovered—it is evidence the defendant knew about, was involved in the creation of, and believed he destroyed well before trial in an effort to conceal criminal activity. As defendant affirmed, he “deleted the photographs and/or text messages because [he] did not want anyone to see them.” This is unsurprising given that the material, including nude photographs he took of the victim, was compelling evidence of his sexual contact with a minor. Defendant cannot now claim that because certain “technology” was not available to recover the incriminating texts and photographs that he attempted to destroy, that material, now recovered, somehow qualifies as “newly discovered evidence.”

Nor has defendant met CPL 440.10 (g)’s due diligence prong, which requires that defendant show that the evidence could not have been produced at the trial even with due diligence on the part of defendant. Nowhere in defendant’s conclusory submissions is there any showing that the evidence was inaccessible before trial, or any indication that defendant tried to obtain it. People v Hartle, 2023 NY Slip Op 02029, CtApp 4-20-23

Practice Point: Text messages and photos of the sexual abuse and rape victim deleted from defendant’s cell phone and subsequently recovered cannot be deemed “newly discovered” evidence which will support a motion to vacate the conviction.

 

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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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