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UPON REMITTAL AFTER THE INITIAL PERSISTENT FELONY OFFENSE SENTENCE WAS OVERTURNED, THE SENTENCING COURT PROPERLY RELIED ON ADDITIONAL INFORMATION TO AGAIN SENTENCE DEFENDANT AS A PERSISTENT FELONY OFFENDER (CT APP).

The Court of Appeal, reversing the Appellate Division, over an extensive dissent, determined the sentencing court, upon remittal after the initial persistent violent felony offender sentence was overturned on appeal, properly relied on additional information to again sentence defendant as a persistent violent felony offender:

Upon the appeal from defendant’s judgment of conviction and original sentence as a persistent violent felony offender in 2013, the People conceded that defendant’s prior incarceration dates did not provide sufficient tolling to qualify his 1987 conviction as a requisite predicate offense … . …

On remittal, Supreme Court resentenced defendant as a persistent violent felony offender, relying on supplemental evidence of defendant’s prior incarceration brought to the court’s attention in connection with collateral motion practice. Defendant appealed, and the Appellate Division, with one Justice dissenting, vacated defendant’s resentence and remitted for a second time. …

At the time of resentencing, Supreme Court was on notice of the supplemental evidence of defendant’s prior incarceration, which conclusively demonstrates that defendant is, in fact, a persistent violent felony offender. … [T]he Appellate Division did not limit its remittal …. … Supreme Court was not precluded from imposing the statutorily required sentence based on the evidence before it, particularly given that court’s “inherent authority to correct illegal sentences” … . People v Kaval, 2022 NY Slip Op 07022, CtApp 12-13-22

Practice Point: Here the appellate division overturned defendant’s sentence as a persistent felony offender because sufficient tolling of the ten-year lookback due to defendant’s incarceration was not demonstrated. The appellate division did not limit its remittal. Therefore, on remittal the sentencing court properly relied upon additional information about defendant’s incarceration which tolled the ten-year lookback and sentenced defendant again as a persistent felony offender.

 

THE DEFENDANT POLICE OFFICER’S THREATS MADE TO HIS FORMER GIRLFRIEND WERE NOT MERELY ANGRY WORDS; THE EVIDENCE SUPPORTED DEFENDANT’S HARASSMENT CONVICTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing the Appellate Term, determined the police officer’s harassment conviction should stand:

During defendant’s phone call with D.D., he accused D.D. and her husband of extorting him. He also made several threats, first that her children would get a bullet in their heads, then that he would firebomb her home, and finally that he would kill the entire family. Contrary to the Appellate Term’s conclusion, a rational factfinder could have determined that this was not a mere outburst, but escalating threats of deadly violence targeted at D.D. and her family. The angry tone of the call, defendant’s use of profanities to refer to D.D. and her children, and the fact that defendant threatened to use deadly violence all support a finding that the statements were not said in jest. Indeed, the morning after this call defendant admitted to his captain that he said something he should not have—to the effect that he was going to shoot D.D.’s children in the head.

A rational factfinder could have concluded that defendant’s statements were not just a rant or mere angry words said by someone in an intimate personal relationship gone bad, but rather serious threats of specific ways he would kill D.D. and her family: firebombing the home and shooting the children in the head. Defendant also communicated a motive for his threats: his alleged belief that D.D. had extorted him, and, as he had previously claimed, that she had cheated on him. The threats on the call were specific and unequivocal—the type of statements that a reasonable person in D.D.’s position, knowing that defendant was an armed police officer who was trained in the use of deadly force and who believed her to be unfaithful and an extortionist, would commonly understand as words describing intended violent action and not a crude outburst, puffery, or bluffs. People v Lagano, 2022 NY Slip Op 07021, CtApp 12-13-22

Practice Point: Here the line between a mere angry outburst and harassment was crossed by defendant police officer’s threats to kill his ex-girlfriend and her children.

 

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THE PROOF THE VICTIM SUFFERED “SERIOUS OR PROTRACTED DISFIGUREMENT” IN THIS ASSAULT FIRST CASE WAS INSUFFICIENT; CONVICTION REDUCED TO ATTEMPTED ASSAULT FIRST (FIRST DEPT).

The First Department, reversing defendant’s assault first conviction and reducing it to attempted assault first, determined the People did not prove the scar on the victim’s cheek met the definition of “serious and protracted disfigurement.” The People introduced two photos of the scar and the doctor who treated the injury testified. The victim did not testify:

Defendant’s convictions were not supported by legally sufficient evidence because the People failed to prove that the victim suffered serious and permanent disfigurement, which was the basis of both counts (see Penal Law §§ 120.10[1], [2]). The People relied solely on two photos of the victim depicting a scar on his cheek, and the scar was briefly described by the doctor who treated the victim on the day of the slashing. Despite the scar’s prominent location, neither the photos nor the doctor’s testimony warrant an inference that the scar rendered the victim’s appearance “distressing or objectionable” to a reasonable observer … . The victim did not testify, so the jury had no opportunity to observe the actual scar and evaluate whether it was seriously disfiguring, nor was any other evidence adduced regarding the scar’s effects on the victim’s appearance, health, and life … . People v McBride, 2022 NY Slip Op 07034, First Dept 12-13-22

Practice Point: Here defendant was charged with assault first for causing “serious and protracted disfigurement” to the victim. Although two photos of the scar were introduced in evidence and the treating doctor testified, the victim did not testify. It appears that the jury’s inability to see the victim at the time of trial rendered the proof legally insufficient.

 

THE FELONY WHICH WAS THE BASIS FOR DEFENDANT’S SECOND FELONY OFFENDER STATUS DID NOT MEET THE CRITERIA FOR A PREDICATE FELONY (THIRD DEPT). ​

The Third Department, reversing County Court, determined the felony which was the basis of defendant’s second felony offender status did not meet the criteria for a predicate felony:

In order for a prior conviction to constitute a predicate felony, the “sequentiality requirement” must be satisfied, which means “that the ‘sentence upon such prior conviction must have been imposed before commission of the present felony'” … . Defendant was sentenced on the predicate felony forming the basis for her second felony status on the same day that she was sentenced on the instant offense. As such, that felony offense — referenced in the predicate felony information as an August 27, 2020 conviction for criminal sale of a controlled substance in the fifth degree — could not be used to meet the requirements for sentencing defendant as a second felony offender on the instant offense. People v Hayes, 2022 NY Slip Op 06965, Third Dept 12-8-22

Practice Point: In order to meet the criteria for a predicate felony re: second felony offender status, the sentence for the prior conviction must have been imposed before the instant felony was committed.

 

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DEFENSE COUNSEL DID NOT WAIVE HIS CLIENT’S RIGHT TO HAVE HIM ATTEND THE LINEUP IDENTIFICATION BY SENDING HIS PARALEGAL, WHO WAS TURNED AWAY; DEFENSE COUNSEL SHOULD HAVE BEEN TOLD HIS PRESENCE WAS REQUIRED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined defense counsel did not waive his client’s right to have his attorney attend the lineup identification procedure by sending his paralegal. The paralegal was turned away:

Defendant was deprived of his right to have counsel present at a … postindictment lineup. It is undisputed that defendant had a right to counsel at this lineup, which was conducted at a time when he already had representation. Although defendant’s counsel was notified of the lineup and did not attend, a paralegal employed by counsel attempted to attend the lineup but was turned away by the police.

The attorney did not waive his client’s right to counsel at the lineup by failing to appear. The police should have briefly paused this nonexigent, postindictment lineup, conducted long after the crime … , in order to advise the attorney he needed to attend personally, or to have the paralegal so advise counsel. People v Bennett, 2022 NY Slip Op 07007, First Dept 12-8-22

Practice Point; Defense counsel sent his paralegal to attend his client’s lineup, but the police sent the paralegal away. The police should have informed counsel his presence was required before going ahead with the lineup. Counsel’s failure to attend did not waive his client’s right to have his attorney present.

 

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IN REVIEWING THE GRAND JURY MINUTES, COUNTY COURT SHOULD NOT HAVE DISMISSED THE CONCURRENT INCLUSORY COUNTS; RATHER THOSE COUNTS SHOULD BE SENT TO THE JURY IN THE ALTERNATIVE (THIRD DEPT).

​The Third Department, reversing County Court and reinstating three counts of the indictment, determined that inclusory concurrent counts in an indictment should not be dismissed prior to trial:

… [T]he parties entered a stipulation in lieu of motions authorizing County Court to review the grand jury minutes to determine whether there was legally sufficient evidence, adequate instructions or any defects in the proceedings. The court thereafter dismissed those counts charging criminal sexual act in the first degree as inclusory concurrent counts of the predatory sexual assault counts pursuant to CPL 300.30 (4), occasioning this appeal by the People.

“In assessing whether dismissal of an indictment is warranted under CPL 210.20 (1) (b), a reviewing court must assess whether the People presented legally sufficient evidence to establish the offense or offenses charged” … .. Although asked to review the indictment to ensure that the evidence submitted to the grand jury was legally sufficient, the court dismissed the counts at issue as inclusory. Even if certain counts charged in the indictment are inclusory concurrent counts, that does not require dismissal of those counts prior to trial or, upon trial, bar the submission of both the greater and the lesser counts to the jury for consideration. Rather, “[w]hen inclusory counts are submitted for consideration, they must be submitted in the alternative since a conviction on the greater count is deemed a dismissal of every lesser count” … . People v Provost, 2022 NY Slip Op 06966, Third Dept 12-8-22

Practice Point: Conclusory concurrent counts should be allowed to go to the jury in the alternative.

 

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DEFENDANT IN THIS SORA RISK-ASSESSMENT PROCEEDING REQUESTED A DOWNWARD DEPARTURE WHICH WAS NOT ADDRESSED BY COUNTY COURT; THE ORDER WAS REVERSED AND THE MATTER SENT BACK FOR THE RELEVANT FINDINGS OF FACT AND CONCLUSIONS OF LAW (THIRD DEPT). ​

The Third Department, reversing County Court, determined defendant’s request for a downward departure in the SORA risk-assessment proceeding was not addressed by the court. The matter was sent back for the relevant findings of fact and conclusions of law:

County Court failed to address his request for a downward departure. We agree and, inasmuch as County Court did not set forth on the record any findings or conclusions on the request, we are unable to assess the court’s reasoning for the implicit denial thereof. “Consequently, we reverse and remit so that County Court may determine whether or not to order a departure from the presumptive risk level indicated by the offender’s guidelines factor score and to set forth its findings of fact and conclusions of law as required” … . People v Howland, 2022 NY Slip Op 06967, Third Dept 12-8-22

Practice Point: In a SORA risk-assessment proceeding, if the defendant requests a downward departure, the court must address the request and make the relevant findings of fact and conclusions of law.

 

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DEFENDANT’S TESTIMONY ABOUT HIS FELONY CONVICTIONS DID NOT OPEN THE DOOR TO A MODIFICATION OF THE COURT’S SANDOVAL RULING TO ALLOW QUESTIONING ABOUT THE FACTS UNDERLYING THE CONVICTIONS; CONVICTION REVERSED (FIRST DEPT). ​

The First Department, reversing defendant’s conviction, determined the court should not have modified its original Sandoval ruling. The initial Sandoval ruling allowed defendant to be questioned about the number of felony conviction on his record but not about any of the underlying facts. When defendant was on the stand the court allowed the prosecutor to ask about the underlying facts:

On direct examination, when asked if he had ever been convicted of a crime in New York, defendant answered, “[y]es.” When asked,”[d]o you know how many,” he testified, “[a]pproximately maybe two or three felonies. Maybe four or five misdemeanors.”

On cross-examination, when the prosecutor asked defendant if he had been convicted of three felonies, defendant replied, “I guess so.” In response to the prosecutor’s next question, defendant said he was not sure how many felony convictions he had. The court then modified its Sandoval ruling and permitted the People to exceed the scope of the initial Sandoval ruling by inquiring about the underlying facts of those felony convictions, which included drug and theft-related crimes.

Defendant’s trial testimony did not open the door to a prejudicial modification of the court’s Sandoval ruling. Defendant was entitled to rely on the trial court’s original Sandoval ruling as a matter of “plain fairness” … .

None of defendant’s responses on direct or cross-examination were so incorrect or misleading as to permit the court’s modification … . People v Henderson, 2022 NY Slip Op 07009, First Dept 12-8-22

Practice Point: The court’s initial Sandoval ruling allowed defendant to be about the number of felony convictions on his record. When the defendant was on the stand, the judge modified the Sandoval ruling to allow questioning about the underlying facts. There was nothing about the defendant’s testimony which justified the Sandoval modification and defendant’s conviction was reversed.

 

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BEFORE SENTENCING DEFENDANT AS A SECOND VIOLENT FELONY OFFENDER, THE COURT DID NOT MAKE A FINDING WHETHER THE TEN-YEAR LOOK-BACK FOR ANY PREDICATE VIOLENT FELONY WAS TOLLED BY A PERIOD OF INCARCERATION; THE ISSUE SURVIVES A WAIVER OF APPEAL AND WAS PROPERLY RAISED FOR THE FIRST TIME ON APPEAL; MATTER REMITTED FOR RESENTENCING (THIRD DEPT). ​

The Third Department, remitting the matter for resentencing, determined the court did not make a finding about whether the 10-year look-back for a predicate violent felony was tolled by periods of incarceration. The issue survives a waiver of appeal and, because the issue is clear from the record, was properly raised for the first time on appeal:

To qualify as a predicate violent felony, the sentence for the prior violent felony “must have been imposed not more than [10] years before commission of the felony of which the defendant presently stands convicted” (Penal Law § 70.04 [1] [b] [iv]). “In calculating this 10-year look-back period, ‘any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such 10-year period shall be extended by a period or periods equal to the time served under such incarceration'” … .

The instant offense occurred on March 3, 2018. Prior to sentencing, the People filed a predicate statement indicating that defendant had previously been convicted of a violent felony in 2004 … . The People also submitted a presentence report which demonstrated that defendant was convicted of additional felonies in 2010 and 2014, but — as the People concede — neither the predicate statement nor the presentence report established the time periods during which defendant was incarcerated during the time between the two violent felonies in order to toll the 10-year look-back period … . People v Faulkner, 2022 NY Slip Op 06957, Third Dept 12-8-22

Practice Point: Before sentencing defendant as a second violent felony offender, the sentencing court did not make a finding whether the ten-year look-back for a predicate violent felony was tolled by a period of incarceration. The issue survives a waiver of appeal and was properly raised for the first time on appeal. The matter was remitted for resentencing.

 

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THE EVIDENCE AT THE HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION DID NOT SUPPORT THE ALLEGATION DEFENDANT’S FRIEND PAID DEFENDANT’S LEGAL FEES CREATING A CONFLICT OF INTEREST FOR DEFENDANT’S ATTORNEY (FIRST DEPT).

The First Department determined Supreme Court properly denied defendant’s motion to vacate his conviction on the ground his attorney had a conflict of interest which deprived him of effective assistance of counsel. The case had gone to the Court of Appeals which held the defendant was entitled to a hearing on the motion:

The record supports the hearing court’s factual determination that defendant’s friend Salaam, whom his counsel represented on an unrelated criminal case, and who had initially been a suspect in the murder of which defendant was convicted, did not pay defendant’s legal fees. At the hearing, defendant did not meet his burden of proving the necessary facts by a preponderance of the evidence … . The hearing evidence showed that Salaam physically handed cash to defendant’s attorney for his retainer and for much of the balance of the fee, but that there was no proof as to the ultimate source of the cash. Counsel credibly testified that he viewed Salaam as his contact person and believed that the legal fees were being collectively raised by a group of defendant’s friends and relatives, including Salaam. The court’s finding was also supported by defendant’s recorded calls made while incarcerated, and the fact that Salaam always delivered cash to the attorney while accompanied by other friends of defendant. The evidence also shows that defendant chose and hired the attorney. People v Brown, 2022 NY Slip Op 06889, First Dept 12-6-22

Practice Point: Defendant alleged his friend paid his legal fees. Defendant’s friend had been represented in another criminal matter by defendant’s attorney and was a suspect in the murder of which defendant was convicted. The evidence at the hearing on defendant’s motion to vacate his conviction did not support the allegation defendant’s friend was the source of the funds paid to defendant’s attorney. Therefore defendant’s argument he was deprived of effective assistance because of his attorney’s conflict of interest was not supported by the evidence.

 

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