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THE ADMISSION ALLOCUTION IN THIS JUVENILE DELINQUENCY PROCEEDING, WHICH REQUIRES THAT THE JUDGE QUESTION THE JUVENILE AND A PARENT, FELL SHORT OF THE STATUTORY REQUIREMENTS IN THE FAMILY COURT ACT; PETITION DISMISSED (THIRD DEPT).

The Third Department, reversing respondent’s admission to criminal mischief in this juvenile delinquency proceeding, determined: (1) the validity of the admission was not moot despite the completion of the one-year placement, and the issue need to be preserved for review; and (2) the admission allocution was insufficient:

… [R]espondent’s argument that the plea allocution did not comply with Family Ct Act § 321.3 is not moot — despite the expiration of respondent’s placement — because the delinquency determination challenged herein “implicates possible collateral legal consequences” … .

… Family Court must “ascertain through allocution of the respondent and his [or her] parent or other person legally responsible for his [or her] care, if present, that (a) he [or she] committed the act or acts to which he [or she] is entering an admission, (b) he [or she] is voluntarily waiving his [or her] right to a fact-finding hearing, and (c) he [or she] is aware of the possible specific dispositional orders” (Family Ct Act § 321.3 [1]). Although respondent’s mother was present at the April 2021 allocution, Family Court only asked her whether she had sufficient time to speak to respondent about the proceedings….  The record reflects that the court failed to question respondent’s mother regarding the acts to which respondent admitted, his waiver of the fact-finding hearing or her awareness of the possible dispositional options. As a result, Family Court’s allocution fell short of the statutory mandate … . Matter of Christian VV. (Christian VV.), 2022 NY Slip Op 07275, Third Dept 12-22-22

Practice Point: The Family Court Act requires that the admission allocution in a juvenile delinquency proceeding involve both the juvenile and a parent. Here the allocution of respondent and his mother fell short of the statutory requirements and the juvenile delinquent petition was dismissed. Although the respondent had already completed his placement, the issue was not moot because of the possible collateral consequences of the delinquency determination.

 

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THE WAIVER OF APPEAL WAS INVALID; THE SUPPRESSION MOTION SHOULD NOT HAVE BEEN DENIED ON A GROUND NOT RAISED BY THE PEOPLE; AND AN APPELLATE COURT CAN NOT CONSIDER ARGUMENTS ON ISSUES NOT RULED ON BELOW (FIRST DEPT).

The First Department, reversing defendant’s conviction by guilty plea and the denial of defendant’s motion to suppress, over an extensive dissent, determined defendant’s waiver of appeal was invalid, the motion to suppress should not have been denied on a ground not raised by the parties, and the appellate court cannot rule on issues not decided below:

… [T]he court conflated defendant’s appellate and trial rights by asking the defendant “[i]s that what you wish to do to waive your right to appeal and your other rights . . . by pleading guilty[?]” Instead, the majority of the court’s colloquy of defendant’s appellate rights focused on sentencing, on which the court itself needed clarification, not in differentiating trial from appellate rights.

… [T]he court made other errors in its oral colloquy that further justify invalidating defendant’s waiver of his appellate rights. Specifically, the court failed to advise defendant of the nature of the right to appeal … , erroneously mischaracterized the finality of the waiver … , and failed to discuss the written waiver form with defendant … . The detailed written waiver that defendant executed with counsel cannot save the numerous errors in the court’s oral colloquy, as “‘a written waiver is not a complete substitute for an on-the-record explanation of the nature of the right to appeal'” … . * * *

… [A]bsent “on-the-record acknowledgements of [defendant’s clear] understanding” … of his appellate rights waiver, the presumption of defense counsel’s competent representation during the plea negotiations is simply insufficient to overcome the court’s deficient colloquy … . * * *

… [T]he People never disputed that defendant had standing to challenge the search warrant. Therefore, the court should not have denied the motion “based on a ground not raised by the People” … . … [T]he People’s current arguments on appeal are precluded by People v LaFontaine (92 NY2d 470, 474 [1998]) because the suppression court did not rule upon these issues, and this Court may not affirm on those alternative grounds … . People v Bonilla, 2022 NY Slip Op 07304, First Dept 12-22-22

Practice Point: Here the waiver of appeal was deemed invalid and there was an extensive dissent on that issue. The motion to suppress should not have been denied on a ground not raised by the People. An appellate court cannot consider issues not ruled on below.

 

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WHEN A DEFENDANT MUST BE RELEASED BECAUSE HE OR SHE IS NOT CHARGED WITH A BAIL-ELIGIBLE OFFENSE, A COMPETENCY EXAMINATION MUST BE CONDUCTED AS AN OUT-PATIENT OR IN A HOSPITAL; THE DEFENDANT CANNOT BE ORDERED TO JAIL PENDING THE EXAMINATION; THE HABEAS CORPUS PETITION WAS PROPERLY GRANTED; THE APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined defendant, who was not charged with a bail-eligible offense, could not be ordered to jail for a competency examination. Defendant must either be examined as an out-patient, or, upon a recommendation of a medical official, in a hospital. The writ of habeas corpus was properly granted and the appeal was heard as an exception to the mootness doctrine:

… [W]e conclude that Wei Li [defendant] was not “in custody” during his arraignment … because he was not charged with a qualifying offense under the bail laws and the court was required to order his release at arraignment (see CPL 510.10 [3]; 530.20 [1] [a]). As its plain text makes clear, subdivision (3) mandates the location for the examination as either (1) the place where the defendant is in custody at the time the court orders the examination, or (2) at a hospital facility, as might be necessary for an effective examination. The statute’s use of the phrase “in custody,” like the phrase “hospital confinement,” refers, as a practical matter, to where a defendant may be properly examined by psychiatric personnel. Thus, “in custody,” as used in subdivision (3), does not broadly refer to custodial control over a defendant at a courthouse. …

A court issuing an order for a competency examination [pursuant to CPL 730.20] (1) may direct an examination on an outpatient basis or, (2) upon a medical recommendation of the director, the court may, but need not, order hospital confinement until completion of the examination. People v Warden, Rikers Is., 2022 NY Slip Op 07093, CtApp 12-15-22

Practice Point: A defendant who is not charged with a bail-eligible offense cannot be ordered to jail pending a competency examination. The defendant must be examined as an out-patient or, upon the recommendation of a medical official, in a hospital.

 

THE DEFENDANT, THINKING THAT THE PERSON TRYING TO BREAK-IN WAS HER ESTRANGED HUSBAND WHO HAD BROKEN IN AND ATTACKED HER BEFORE, FIRED A SINGLE SHOT THROUGH THE METAL DOOR, KILLING THE VICTIM (WHO WAS NOT HER ESTRANGED HUSBAND); BECAUSE HER USE OF THE WEAPON WAS DEEMED DANGEROUS AND RECKLESS, DEFENDANT WAS NOT ENTITLED TO THE TEMPORARY AND LAWFUL USE OF A WEAPON JURY INSTRUCTION (CT APP).

The Court of Appeals, reversing the appellate division, determined the defendant was not entitled to the temporary and lawful possession of a weapon jury instruction in this murder case. Defendant thought the person trying to get into her house was her estranged husband who had broken in and attacked her before. She fired one shot through the metal door, killing the victim (who was not her estranged husband). Defendant was convicted of criminal possession of a weapon and acquitted of murder and tampering with evidence. The appellate division reversed, finding defendant was entitled to the temporary and lawful possession of a weapon instruction. The Court of Appeals reversed, finding that the jury instruction was not warranted:

A defendant is entitled to a jury charge on the defense of temporary and lawful possession when there is evidence presented at trial “‘showing a legal excuse for . . . possession as well as facts tending to establish that, once possession has been obtained, the weapon had not been used in a dangerous manner'” … . Here, defendant used the weapon in a dangerous manner … . Although no single fact is dispositive, she fired the gun blindly through a closed, windowless door, endangering anyone who might have been on the other side, striking and killing the victim, and creating a risk that the bullet would ricochet off the metal door and potentially injure her children.

Viewing the evidence adduced at trial in the light most favorable to defendant, as we must … , we conclude that “‘no reasonable view of the evidence would support a finding of the tendered defense'” of temporary and lawful possession and, thus, County Court was “‘under no obligation to submit the question to the jury'” … . Inasmuch as defendant’s actions were reckless and dangerous, she was not entitled to the temporary and lawful possession charge. People v Ruiz, 2022 NY Slip Op 07092, CtApp 12-15-22

Practice Point: Use of a weapon which is deemed dangerous and reckless, here shooting through a metal door, precludes instructing the jury on the temporary and lawful use of a weapon.

 

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PROBABLE CAUSE FOR SEARCH OF DEFENDANT’S VEHICLE UNDER THE AUTOMOBILE EXCEPTION WAS PROVIDED BY THE ODOR AND OBSERVATION OF MARIJUANA; SEIZURE OF A TRANSPARENT BAG OF PILLS WAS NOT JUSTIFIED BY THE PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREMENT BECAUSE IT WAS NOT IMMEDIATELY APPARENT THE PILLS WERE CONTRABAND AND THERE WAS NO MARIJUANA IN THE BAG (SECOND DEPT).

The Second Department, reversing defendant’s conviction stemming from a transparent plastic bag of pills seized from defendant’s vehicle after a traffic stop. determined the seizure of the pills was not justified by the plain view exception to the warrant requirement. The court noted that the Penal Law statute prohibiting a probable-cause finding based solely on the odor of marijuana is not applied retroactively and therefore the marijuana odor and the observation of the marijuana provided probable cause for a search pursuant to the automobile exception to the warrant requirement here:

The plain view doctrine is not applicable where the object must be moved or manipulated before its illegality can be determined … . The movement or manipulation of an object from its original state in a manner that goes beyond the objectives of the original search constitutes an independent search or seizure … . Such a search or seizure may not be upheld without proof that the officer who moved or manipulated the object had probable cause to believe that the object was evidence or contraband at the time that it was moved or manipulated … .

Here, Cruz [the officer] testified that he did not know what the pills in the ziploc bag were when he seized them. * * *

Since it was obvious that the transparent ziploc bag seized by Cruz did not contain marihuana, and since it was not immediately apparent that the ziploc bag contained any other type of contraband, there was no justification for seizing the bag … . People v Rodriguez, 2022 NY Slip Op 07080, Second Dept 12-14-22

Practice Point: The Penal Law statute prohibiting a probable-cause finding based solely on the odor of marijuana is not applied retroactively.

Practice Point: If an object, i.e., a transparent plastic bag of pills, must be manipulated before it can be determined to be contraband, seizure under the plain view exception is not justified. Here the odor and observation of marijuana provided probable cause for the search of the vehicle, and containers within the vehicle, for marijuana. Because the transparent bag of pills did not contain marijuana, the plain view exception did not apply.

 

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IF A DEFENDANT IS CONVICTED OF A FELONY IN A FOREIGN JURISDICTION WHICH REQUIRES THE DEFENDANT TO REGISTER AS A SEX OFFENDER, THE DEFENDANT WILL BE DESIGNATED A SEXUALLY VIOLENT OFFENDER IN NEW YORK EVEN IF THE FOREIGN FELONY DID NOT INVOLVE VIOLENCE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a dissent, determined a defendant who has been convicted in a foreign jurisdiction of a felony for which the defendant was required to register as a sex offender must be designated a sexually violent offender in New York, even if the foreign offense did not involve violence:

The statutory language is clear and unambiguous: “a felony in any other jurisdiction for which the offender is required to register as a sex offender” therein is, under subdivision (3), a “sexually violent offense” … . “As a general rule, unambiguous language of a statute is alone determinative” … . * * *

Defendant—and the many learned judges, lawyers, and legal scholars—may well be correct that subdivision (3) (b)’s foreign jurisdiction clause contains a legislative drafting error, but that does not give the courts license to ignore it. Courts must not “legislate under the guise of interpretation” … . If we were to take it upon ourselves to delete subdivision (3) (b)’s foreign registration clause as the Committee suggested the legislature should do, we would be impinging on the province of the legislature … . Thus, we are constrained to construe subdivision (3) (b)’s foreign registration clause according to its plain language. If the legislature did err, we unequivocally call upon it to remedy that error … . People v Talluto, 2022 NY Slip Op 07025, CtApp 12-13-22

Practice Point: If a defendant has been convicted of a felony in another state which requires the defendant to register as a sex offender in that state, the defendant will be designated a sexually violent offender in New York, even if the out-of-state conviction did not involve violence.

 

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THE USE OF PEPPER SPRAY BY JAIL PERSONNEL (AFTER A WARNING) WHEN DEFENDANT REFUSED TO TAKE OFF HIS SHOES WAS NOT “EXCESSIVE FORCE;” THEREFORE DEFENDANT, WHO ASSAULTED THE OFFICER FIVE SECONDS AFTER HE WAS SPRAYED, WAS NOT ENTITLED TO A JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE IN HIS ASSAULT TRIAL (CT APP). ​

The Court of Appeals, reversing the appellate division, determined there was no reasonable view of the evidence which would support a jury instruction on the justification defense. At the jail, the defendant was ordered to take off his shoes. When he refused, after being warned, he was sprayed in the face with pepper spray. Five seconds after he was sprayed, defendant charged the officer and punched him in the head:

The Appellate Division concluded that, viewing the evidence in the light most favorable to defendant, there was a “reasonable view of the evidence that the use of the pepper spray constituted excessive force in this scenario” … . …

… [T]here is no reasonable view of the evidence that the sergeant’s use of pepper spray was excessive or otherwise unlawful. The trial evidence was that defendant was given a lawful command to remove his footwear, that he was given that verbal command several times yet persisted in his refusal, and that he was specifically warned that he would be pepper sprayed if he did not comply. The officers further testified that the use of pepper spray was considered a “minimal” use of force compared to using “hands on” force to remove the footwear. People v Heiserman, 2022 NY Slip Op 07024, CtApp 12-12-22

Practice Point: Jail personnel ordered defendant to take off his shoes. He refused and continued to refuse after he was warned he would be pepper-sprayed. Hw assaulted the officer five seconds after being sprayed. The Court of Appeals, reversing the appellate division, determined the use of pepper spray was not excessive force and the defendant was not entitled to a jury instruction on the justification defense.

 

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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.

 

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