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THE APPELLATE DIVISION AFFIRMED DEFENDANT’S CONVICTION BY GUILTY PLEA AFTER A FLAWED SPEEDY-TRIAL ANALYSIS OF THE EIGHT-YEAR PRE-INDICTMENT DELAY; THE COURT OF APPEALS REVERSED, EXPLAINED THE FLAWS AND REMITTED THE MATTER FOR A NEW ANALYSIS (CT APP). ​

The Court of Appeals, reversing the appellate division’s affirmance of defendant’s (Johnson’s) conviction by guilty plea and remitting the matter for another analysis, in a full-fledged opinion by Judge Wilson, determined the appellate division did not properly apply the “Taranovich” criteria to the eight-year pre-indictment delay in this rape/sexual abuse case.

In People v Taranovich, we established the following five factors for assessing speedy trial claims: (1) the extent of the delay; (2) the reasons for the delay; (3) the nature of the underlying charge; (4) whether there has been an extended period of pretrial incarceration; and (5) whether there is any indication that the defense has been impaired by reason of the delay … . Although this case concerns pre-indictment delay and is analyzed as a due process claim, we nevertheless apply the test established in Taranovich … . …

The Appellate Division “assume[d], arguendo, that the People failed to establish ‘good cause’ for the ‘protracted’ preindictment delay” … . However, some examination of the reason for the delay is required. Instead of attempting to evaluate the good faith reasons for the various periods of delay, the Appellate Division’s conclusion that the second factor favored Mr. Johnson is based upon an assumption for the sake of argument. …

Turning to the third factor, the “nature” of the underlying crime can refer to both its severity and, relatedly, the complexity and challenges of investigating the crime and gathering evidence to support a prosecution … . … Here, the Appellate Division held that its assumption that the People lacked good cause compelled the result that the “third factor[ ] favors[s] the defendant.” The crime here—the sexual assault of a minor found unresponsive on a city street—is quite serious. The nature of the crime here is directly related to the issues of complexity and may, therefore, account for some of the delay: the victim’s severe intoxication and lack of memory of the assault rendered her unable to identify her attacker. It is not clear on what basis the court concluded that its assumption of lack of good faith led to the conclusion that the third factor favored Mr. Johnson, but that conclusion, apparently based solely on that assumption with no analysis of the relevant concerns, is not supportable. …

In analyzing factor five, the Appellate Division held that because Mr. Johnson pled guilty only to rape in the second degree … , which depends solely on the age difference between the defendant and the victim, “the preindictment delay could not have ‘impaired’ defendant’s ability to defend himself on the charge of which he was convicted” … . This was error. When an indictment contains multiple counts, if delay impacts the defendant’s ability to defend one count, it may weaken that defendant’s position in plea bargaining, potentially adversely impacting the resulting plea … . Thus, the appellate court must consider prejudice measured against all counts pending when the dismissal motion is made, not merely against the crime of conviction. People v Johnson, 2022 NY Slip Op 06537, CtApp 11-17-22

Practice Point: Here the defendant pled guilty after an eight-year pre-indictment delay and the appellate division affirmed. The Court of Appeals reversed, finding the appellate division’s application of the “Taranovich” framework for determining whether a defendant’s constitutional right to a speedy trial has been violated seriously flawed. The Court of Appeals explained the flaws and remitted the matter to the appellate division for another speedy-trial analysis. The Court of Appeals noted that, where a defendant is charged with multiple counts, whether the delay impaired the defense must take into account all the charged counts, not just the count to which defendant pled guilty.

 

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THE SUPERIOR COURT INFORMATION (SCI) DID NOT INCLUDE AN OFFENSE CHARGED IN THE FELONY COMPLAINT OR A LESSER INCLUDED OFFENSE; THE SCI WAS THEREFORE JURISDICTIONALLY DEFECTIVE; THE ERROR NEED NOT BE PRESERVED FOR APPEAL (SECOND DEPT).

​The Second Department, reversing defendant’s conviction and vacating the plea, determined the superior court information (SCI) was jurisdictionally defective because it did not include an offense charged in the felony complaint or a lesser included offense of an offense charged in the felony complaint:

The defendant was charged, by felony complaint, with one count of course of sexual conduct against a child in the first degree under Penal Law § 130.75(1)(b), and one count of endangering the welfare of a child under Penal Law § 260.10(1). He waived indictment by a grand jury and entered a plea of guilty under a superior court information to one count of course of sexual conduct against a child in the second degree under Penal Law § 130.80(1)(a). …

The single count in the superior court information was not an “offense for which the defendant [had been] held for action of a grand jury” (CPL 195.20), in that it was not an offense charged in the felony complaint or a lesser included offense of an offense charged in the felony complaint … . Thus, the superior court information was jurisdictionally defective. This defect survives the defendant’s failure to raise this claim in the Supreme Court, his plea of guilty, and his waiver of the right to appeal … . People v Mendoza, 2022 NY Slip Op 06499, Second Dept 11-16-22

Practice Point: A superior court information (SCI) which does not include an offense charged in the felony complaint or a lesser included offense is jurisdictionally defective and the error need not be preserved for appeal.

 

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BG, AN ADOLESCENT OFFENDER (AO) WITHIN THE MEANING OF THE “RAISE THE AGE ACT,” ASSAULTED A MAN AND THREW HIM ON THE SUBWAY TRACKS; A BYSTANDER JUMPED DOWN TO HELP THE ASSAULT VICTIM; THE BYSTANDER WAS KILLED BY A SUBWAY TRAIN WHICH STOPPED BEFORE REACHING THE ASSAULT VICTIM; THE JUDGE RULED THE MATTER SHOULD BE TRANSFERRED TO FAMILY COURT; THE PEOPLE SOUGHT A WRIT OF PROHIBITION WHICH WAS DENIED (FIRST DEPT).

The First Department denied the People’s request for a writ of prohibition to prevent respondent judge from sending a criminal case involving an adolescent offender (AO) to Family Court pursuant to the “Raise the Age Law.” In criminal matters involving AO’s the Raise the Age Law allows judges to decide whether the matter should heard in Family Court. Here BG, the AO, assaulted the victim  in a subway station and threw the victim on the tracks. A bystander jumped down to try to help the victim. The train was able to stop before reaching the assault victim, but the bystander who tried to help the victim was killed by the train:

Justice Semaj rejected the People’s argument that BG engaged in “heinous” conduct by pushing the surviving victim onto the tracks and leaving him there unconscious, observing that this argument was “rebutted by the video footage offered by the People,” which showed that the surviving victim “was conscious at the time he was pushed on to the tracks and even if he became unconscious once on the tracks, [BG] and another young person are seen going into the tracks and seemingly moving [him], possibly inadvertently, but . . . out of harm’s way.” The court further noted that Hueston [the bystander] chose to jump onto the train tracks, and that BG left after he “was told to leave by [Hueston].” … . * * *

“A writ of prohibition against a judge may be issued only when a court acts or threatens to act without jurisdiction in a matter of which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction” … . “Prohibition cannot be used merely to correct errors of law, however egregious and however unreviewable” … . The Court of Appeals has stressed that, in the context of criminal proceedings, the writ should be issued “only when a court exceeds its jurisdiction or authorized power in such a manner as to implicate the legality of the entire proceeding, as for example, the prosecution of a crime committed beyond the county’s geographic jurisdiction” … . “Although the distinction between legal errors and actions in excess of power is not always easily made, abuses of power may be identified by their impact upon the entire proceeding as distinguished from an error in a proceeding itself” … . Matter of Clark v Boyle, 2022 NY Slip Op 06316, First Dept 11-10-22

Practice Point: Pursuant to the “Raise the Age Law” criminal cases involving adolescent offenders (AO’s) are reviewed by a judge who can chose to have the case heard in Family Court. The AO in this case assaulted a man and threw him onto subway tracks. The man survived but a bystander who tried to help him was killed by the train. The People sought a writ of prohibition to prevent the transfer to Family Court. The First Department laid out the strict criteria for a writ of prohibition and denied it.

 

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A WITNESS WHO WOULD HAVE TESTIFIED THE COMPLAINANT IN THIS SEXUAL ABUSE PROSECUTION HAD OFFERED TO GIVE FALSE TESTIMONY ABOUT THE WITNESS’S BOYFRIEND SHOULD HAVE BEEN ALLOWED TO TESTIFY (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction in this sexual abuse prosecution, determined a witness who would have testified about the complainant’s offer to give false testimony about the witness’s boyfriend should have been allowed to testify:

County Court erred in precluding him from calling a witness who would testify that the complainant offered to make a false allegation of abuse against the witness’s boyfriend. “Questioning concerning prior false allegations of rape or sexual abuse is not always precluded . . . , and the determination whether to allow such questioning rests within the discretion of the trial court” … . Evidence of a complainant’s prior false allegations of rape or sexual abuse is admissible to impeach the complainant’s credibility where a “defendant establishe[s] that the [prior] allegation may have been false[, and] . . . that the particulars of the complaints, the circumstances or manner of the alleged assaults, or the currency of the complaints were such as to suggest a pattern casting substantial doubt on the validity of the charges made by the complainant” … . Here, based on the proffer made at trial, defendant’s proposed witness would have testified that the complainant offered to knowingly make a false allegation against the witness’s boyfriend and that this conduct took place around the same time as the first incident alleged against defendant and just months before the second such incident. Further, per defense counsel’s proffer, the nature and circumstances of the allegations against defendant and the offered allegation against the witness’s boyfriend were sufficiently similar to “suggest a pattern casting substantial doubt on the validity of the charges” … . People v Andrews, 2022 NY Slip Op 06366, Fourth Dept 11-10-22

Practice Point: A witness who would have testified the complainant in this sexual abuse prosecution offered to give false testimony against her boyfriend should have been allowed to testify. Evidence of a complainant’s prior false allegations of sexual abuse can be admissible to impeach the complainant under certain circumstances (present here).

 

UNAUTHORIZED USE OF A VEHICLE THIRD DEGRESS IS A LESSER INCLUSORY COUNT OF GRAND LARCENY FOURTH DEGREE (FOURTH DEPT).

The Fourth Department determined the unauthorized use of a vehicle third degree count should nave been dismissed as a lesser inclusory count of grand larceny fourth degree:

… [T]he part of the judgment convicting defendant of unauthorized use of a vehicle in the third degree must be reversed and count two of the indictment dismissed because that offense is a lesser inclusory concurrent count of count one, grand larceny in the fourth degree … . People v Mitchell, 2022 NY Slip Op 06359, Fourth Dept 11-10-22

Practice Point: Unauthorized use of a vehicle third degree is a lesser inclusory count of grand larceny fourth degree.

 

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DEFENSE COUNSEL STATED DEFENDANT’S PRO SE MOTION TO WITHDRAW THE PLEA WAS WITHOUT MERIT; DEFENSE COUNSEL AND THE COURT INCORRECTLY TOLD THE DEFENDANT THE ISSUES RAISED IN THE MOTION TO WITHDRAW HAD BEEN DECIDED IN A PRIOR APPEAL: DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE (FOURTH DEPT).

The Fourth Department, remitting the matter to determined defendant’s pro se motion to withdraw his plea, determined defendant did not receive effective assistance of counsel. Counsel stated the pro se motion did not have merit, taking a position adverse to the client’s position. In addition, defense counsel and the court incorrectly told defendant that the issues raised in defendant’s motion to withdraw the plea had been determined in a prior appeal:

When defense counsel takes a position adverse to his or her client, “a conflict of interest arises, and the court must assign a new attorney to represent the defendant on the motion” … .

Here, by stating that there were no grounds for defendant’s pro se motion, defense counsel essentially said that it lacked merit, which constitutes taking a position adverse to defendant … .

It appears from the record that defense counsel advised defendant that the issues raised by defendant in his pro se motion to withdraw his plea had already been decided against him in the prior appeal. The court agreed with defense counsel’s interpretation of our ruling. Both defense counsel and the court were incorrect. People v Hemingway, 2022 NY Slip Op 06356, Fourth Dept 11-10-22

Practice Point: If defense counsel takes a position adverse to defendant’s position, the defendant has not received effective assistance and is entitled to new counsel. Here defense counsel stated defendant’s pro se motion to withdraw the plea was without merit. The matter was remitted for assignment of new counsel and consideration of defendant’s motion.

 

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DEFENDANT PLED GUILTY TO DWI AND THE JUDGE REVOKED HIS DRIVERS LICENSE FOR ONE YEAR; THE DMV SUBSEQUENTLY DENIED DEFENDANT’S APPLICATION TO REINSTATE HIS LICENSE; DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON THE GROUND HE WAS NOT AWARE HE COULD PERMANENTLY LOSE HIS LICENSE SHOULD HAVE BEEN DENIED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, in a comprehensive decision worth consulting, determined defendant’s motion to vacate his DWI conviction should not have been granted: Defendant pled guilty and Supreme Court revoked his driving license for one year. When defendant applied to reinstate his drivers license he was notified by the Department of Motor Vehicles (DMV) that, based on his prior DWI-related convictions or incidents, his application had been denied. Defendant brought a  motion to vacate his conviction, arguing that his guilty plea was not knowing and voluntary because the plea was based on his understanding he would lose his license for one year. Supreme Court granted the motion and the People appealed:

The Supreme Court erred in granting the defendant’s motion to vacate the judgment of conviction on the ground that his plea of guilty was not entered knowingly, voluntarily, and intelligently. The subject regulation that led to the denial of the defendant’s application for relicensing did not exist at the time he entered his plea of guilty, and it would have been impossible for the court to inform the defendant of consequences flowing therefrom … . “‘The defendant’s grievance lies with the enactment and enforcement of the new regulation, not the manner of his conviction'” … .

To the extent that the potentially permanent license revocation authorized under the subject regulation is a consequence of the defendant’s instant plea of guilty at all (see People v Avital, 64 Misc 3d 483, 485 [Town of East Fishkill Just Ct, Dutchess County] [denial of relicensing under 15 NYCRR 136.5 results not from any particular conviction, but from the applicant’s “complete driving history”]), it is, as the defendant acknowledges, a collateral consequence of his plea … . * * *

… [A] consequence of a conviction must represent an exceptionally severe liberty deprivation [i.e., deportation] in order to fall within the narrow category of collateral consequences of which a defendant must be advised at the time of entering the plea. … [W]e cannot conclude that the permanent loss of a driver license fits into that category. People v Maggio, 2022 NY Slip Op 06262, Second Dept 11-9-22

Practice Point: Defendant pled guilty to DWI knowing his license would be revoked by the court for one year. His application to reinstate his license was subsequently denied by the DMV. The fact that defendant’s license could be revoked permanently by the DMV was a collateral consequence of the plea which did not affect the voluntariness of the plea. A defendant need not be aware of a collateral consequence to render a plea voluntary. The rare exception is a collateral consequence which affects a liberty interest, deportation for example.

 

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AN APPELLATE COURT MAY CONSIDER A SUPPRESSION RULING GROUNDED ON A THEORY NOT RELIED UPON OR ARGUED BY THE PARTIES AS LONG AS THE RULING IS BASED UPON THE EVIDENCE AND IS FULLY LAID OUT AND EXPLAINED BY THE MOTION COURT; HERE THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT DID NOT APPLY AND THE EVIDENCE SEIZED FROM DEFENDANT’S VEHICLE SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Chambers, determined: (1) the appellate court can consider an appeal of a suppression ruling which was not based on a theory argued by the parties below, but which was based upon the hearing evidence and fully laid out and explained by the motion court; and (2) the automobile exception to the warrant requirement did not apply and the evidence seized from defendant’s vehicle should have been suppressed:

The narrow reading of Tates [189 AD3d 1088] advocated by the People is consistent with the approach taken by the Appellate Division, Fourth Department, and the Appellate Division, First Department, in comparable cases involving the suppression court’s application of the automobile exception to the warrant requirement …  The general rule articulated in these cases is that the suppression court is “entitled to consider legal justifications that were supported by the evidence, even if they were not raised explicitly by the People” … . * * *

“[A]bsent probable cause, it is unlawful for a police officer to invade the interior of a stopped vehicle once the suspects have been removed and patted down without incident, as any immediate threat to the officers’ safety has consequently been eliminated” … . Pursuant to the automobile exception to the warrant requirement, a warrantless search of a vehicle is permitted when the police have probable cause to believe the vehicle contains contraband, a weapon, or evidence of a crime … .

Here, “the circumstances known to the police at the time of the search did not rise to the level of probable cause” … . People v Marcial, 2022 NY Slip Op 06142, Second Dept 11-2-22

Practice Point: An appellate court may consider a suppression court’s ruling which is grounded upon a theory (here the automobile exception to the warrant requirement) not raised or argued by the parties, as long as the ruling is based upon the evidence and is fully laid out and explained by the motion court.

Practice Point: Here the automobile exception to the warrant requirement did not apply and the evidence seized from defendant’s vehicle should have been suppressed.

 

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THE CONTENTION DEFENDANT WAS ILLEGALLY SENTENCED AS A SECOND VIOLENT FELONY OFFENDER NEED NOT BE PRESERVED FOR APPEAL; DEFENDANT COMMITTED THE INSTANT OFFENSE BEFORE HE WAS SENTENCED ON THE PRIOR VIOLENT FELONY CONVICTION; SECOND VIOLENT FELONY OFFENDER ADJUDICATION VACATED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, noted that the contention defendant was illegally sentenced as a second violent felony offender need not be preserved for appeal:

As the People properly concede, the defendant’s contention that he was illegally sentenced as a second violent felony offender is not subject to the preservation rule … . Here, the defendant was illegally sentenced as a second violent felony offender since he committed the instant offense before he was sentenced on the prior violent felony conviction … . Thus, the prior violent felony conviction cannot serve as a predicate violent felony offense for sentencing purposes (see Penal Law § 70.04[1][b][ii]). People v Lynch, 2022 NY Slip Op 06141, Second Dept 11-2-22

Practice Point: Here the defendant committed the instant offense before he was sentenced on the prior violent felony. Therefore he should not have been adjudicated a second violent felony offender. The issue need not be preserved for appeal.

 

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THE SUPERIOR COURT INFORMATION (SCI) DID NOT CHARGE DEFENDANT WITH CREATING AND FAILING TO REGISTER AN INTERNET IDENTIFIER, WHICH IS A VIOLATION OF THE CORRECTION LAW; INSTEAD, THE SCI CHARGED DEFENDANT WITH FAILURE TO REGISTER A FACEBOOK ACCOUNT, WHICH DOES NOT VIOLATE THE CORRECTION LAW (THIRD DEPT).

The Third Department, reversing defendant’s conviction and dismissing the superior court information (SCI) determined that the SCI did not charge defendant with an violation of Correction Law section 168-a (18). The statute requires a sex offender to register the creation of an “Internet identifier.” But the SCI charged defendant with creating a Facebook account, which is not prohibited:

… [T]he SCI did not charge defendant with failing to register or report a change in an Internet identifier; instead, defendant was solely charged with failing to report a change in Internet status in violation of Correction Law § 168-f (4). Even assuming, without deciding, that the generalized language employed — failing to report a change in Internet status — coupled with the statutory reference otherwise would be sufficient to allege the material elements of the crime charged … , such reference was effectively negated “by the inclusion of conduct that [did] not constitute the crime charged” … — namely, “establishing a Facebook account.”

The governing statutes were written, and have been interpreted, narrowly. It has been clearly established “that the existence of a Facebook account — as opposed to the Internet identifiers a sex offender may use to access Facebook or interact with other users on Facebook — need not be disclosed to DCJS [Division of Criminal Justice Services] pursuant to Correction Law § 168-f (4)” … . Hence, the mere fact that defendant established a Facebook account was not an occurrence that defendant was required to report to DCJS, and his failure to do so did not constitute a violation of Correction Law § 168-f (4) … . * * *

… [T]he People did not charge defendant with failing to register an Internet identifier; they charged him with failing to report a change in Internet status, i.e., “establishing a Facebook account.” Stated differently, instead of “correctly alleg[ing] that the omission constituting the offense was [defendant’s] failure to register an Internet identifier used by him to access and identify himself on the Facebook account that he created and maintained, [the SCI] improperly premise[d] the charge on his failure to register the Facebook account itself” … . People v Ferretti, 2022 NY Slip Op 06030, Third Dept 10-27-22

Practice Point: Here the superior court information (SCI) did not charge defendant with an offense. If the SCI had charged defendant with failing to register an Internet identifier, the SCI would have charged an offense. Bu the SCI only charged defendant with failing to register a Facebook account, which is not an offense.

 

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