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THE JUDGE DID NOT READ THE JURY NOTE IN ITS ENTIRETY TO THE PARTIES AND THE JUDGE’S PARAPHRASE OF THE CONTENTS OMITTED SIGNIFICANT ASPECTS OF IT; THE FACT THAT THE JURY ANNOUNCED IT HAD REACHED A VERDICT BEFORE THE NOTE WAS CALLED TO THE PARTIES’ ATTENTION DID NOT MATTER; THE MODE OF PROCEEDINGS ERROR REQUIRED REVERSAL (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined the judge’s failure to read the entire note from the jury to the parties was a mode of proceedings error. The fact that the jury announced it had reached a verdict before the note was read was not determinative:

The trial court’s failure to read to the parties the entirety of a note submitted just before the jury reached a verdict deprived counsel of meaningful notice (see CPL 310.30 … ). The note was not shown to counsel, and the court’s paraphrase omitted significant aspects of the jury’s requests, including a request for reinstruction on the count charging second-degree assault, which was the only count on which defendant was found guilty. The fact that the jury announced that it had reached a verdict before the note was read did not cure this mode of proceedings error … . People v Heyworth, 2022 NY Slip Op 06072, First Dept 10-27-22

Practice Point: Here the jury had announced it had reached a verdict before the jury note was called to the parties attention. The judge did not read the note to the parties in its entirety and the judge’s paraphrase of its contents omitted important aspects of it. This was deemed a mode of proceedings error requiring a new trial.

 

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A FINE NOT INCLUDED IN THE PLEA AGREEMENT SHOULD NOT HAVE BEEN IMPOSED (SECOND DEPT).

The Second Department, vacating the fine imposed at sentencing, determined the sentencing judge should not have imposed a fine that was not part of the plea agreement:

County Court improperly enhanced the defendant’s sentence by imposing a fine that was not part of the negotiated plea agreement … . Under the circumstances of this case, we find it appropriate to vacate so much of his sentence as imposed a fine, so as to conform the sentence imposed to the promise made to the defendant in exchange for his plea of guilty … . People v Ruiz, 2022 NY Slip Op 06016, Second Dept 10-26-22

Practice Point: Here the imposition of a fine at sentencing which was not contemplated by the plea agreement was deemed an improper enhancement of the sentence.

 

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THE SENTENCING JUDGE IMPROPERLY SPECULATED AND CONSIDERED UNCHARGED CRIMES; SENTENCE VACATED (SECOND DEPT). ​

The Second Department, vacating defendant’s sentence, determined the sentencing judge improperly speculated and considered uncharged crimes:

… [C]ertain remarks made by the County Court demonstrate that, in imposing sentence, it improperly speculated and considered that the defendant had committed additional similar crimes for which she had not been apprehended. Consequently, the defendant must be resentenced … . People v Jeffriesel, 2022 NY Slip Op 06012, Second Dept 10-2622

Practice Point: Here the judge’s remarks at sentencing revealed improper speculation and consideration of uncharged crimes. The sentence was vacated and resentencing ordered.

 

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THE CITY’S COMPLAINT ALLEGED A CAUSE OF ACTION FOR PUBLIC NUISANCE BASED UPON DEFENDANT’S SALE OF UNSTAMPED, UNTAXED CIGARETTES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff-city’s complaint stated a cause of action for public nuisance against defendant City Tobacco House for selling unstamped, untaxed cigarettes:

… [T]he complaint alleged that City Tobacco House was a commercial establishment where several violations of Tax Law § 1814(b) and Administrative Code § 11-4012(b) had occurred during the six-month period preceding the commencement of this action. On one occasion, law enforcement officers allegedly recovered 8.4 cartons of untaxed cigarettes at the subject premises, and one person was arrested and charged with violating Tax Law § 1814. On another occasion, 28 packs of untaxed cigarettes allegedly were recovered from the subject premises, and one person was arrested and charged with violating Tax Law § 1814. On two other occasions, an undercover police officer allegedly purchased one pack of untaxed cigarettes from an employee in the subject premises. On another occasion, the execution of a search warrant at the subject premises allegedly resulted in the seizure of 64 packs of untaxed cigarettes and the arrest of one person. * * *

The allegations of unlawful conduct … , along with the allegation in the complaint that City Tobacco House knowingly conducted or maintained the subject premises as a place where persons gathered for purposes of engaging in conduct that violated Tax Law § 1814 and Administrative Code § 11-4012(b), were sufficient to allege the commission of criminal nuisance in the second degree, as defined in Penal Law § 240.45. Thus, having alleged facts supporting the proposition that City Tobacco House was a place “wherein there is occurring a criminal nuisance as defined in section 240.45 of the penal law” (Administrative Code § 7-703[l]), the complaint validly alleged the existence of a public nuisance at the subject premises. City of New York v Land & Bldg. Known as 4802 4th Ave., 2022 NY Slip Op 05988, Second Dept 10-26-22

Practice Point: Here the city’s allegation defendant sold unstamped, untaxed cigarettes stated a cause of action for public nuisance.

 

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THE FACT THAT DEFENDANT DID NOT APPEAL HIS 2006 CONVICTION ON THE GROUND HE WAS NOT INFORMED OF THE PERIOD OF POSTRELEASE SUPERVISION DID NOT PREVENT DEFENDANT FROM RAISING THAT ISSUE TO CHALLENGE THE CONSTITUTIONALITY OF THE 2006 CONVICTION IN THE CONTEXT OF A PERSISTENT VIOLENT FELONY OFFENDER PROCEEDING (THIRD DEPT).

The Third Department, vacating defendant’s sentence as a persistent violent felony offender, determined the fact that defendant didn’t appeal his 2006 conviction on the ground he was not informed of the period of postrelease supervision did not prevent him from raising that issue to challenge use of the 2006 conviction in a persistent-felony-offender proceeding:

Defendant … challenged the constitutionality of the 2006 conviction, alleging that he was not informed during the plea allocution that his sentence would include a period of postrelease supervision … . The record reflects that Supreme Court and the People were under the impression that, because defendant had not raised that objection at his 2006 sentencing and had never appealed the 2006 judgment of conviction, such conviction remained unchallenged as of the hearing date and that, as a consequence, defendant’s sole recourse was to bring a motion under CPL article 440 seeking to vacate that conviction. Defendant was advised that, if the CPL article 440 motion was successful, he could then petition Supreme Court regarding his status as a persistent violent felony offender. The court then adjudicated defendant a persistent violent felony offender.

Significantly, “[n]otwithstanding his failure to appeal from the [2006] conviction, defendant had an independent statutory right to challenge its use as a predicate conviction on the ground it was unconstitutionally obtained” … . Under these circumstances, defendant was not afforded a sufficient opportunity to challenge the constitutionality of his 2006 conviction at the hearing. Accordingly, the sentence must be vacated and the matter remitted for a proper persistent felony offender hearing under CPL 400.16 and resentencing. People v Hoyt, 2022 NY Slip Op 05894, Third Dept 10-20-22

Practice Point: The fact that defendant did not appeal his 2006 conviction on the ground he was not informed of the period of postrelease supervision did not prevent defendant from challenging the use of the 2006 conviction in a persistent violent felony offender proceeding on that same ground.

 

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THERE WAS SUFFICIENT EVIDENCE, INCLUDING EXPERT EVIDENCE, OF DEFENDANT’S INTOXICATION TO RAISE A DOUBT WHETHER DEFENDANT FORMULATED THE INTENT TO COMMIT ASSAULT SECOND; THE REQUEST FOR THE INTOXICATION JURY CHARGE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, determined there was sufficient evidence of defendant’s intoxication to warrant the jury charge on intoxication. There was enough evidence of intoxication to support a doubt whether defendant was able to formulate the requisite intent to commit assault second:

“To warrant the submission of an intoxication charge to a jury, there must be sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis” … . When making the determination as to whether an intoxication charge is warranted, the evidence must be viewed “in the light most favorable to the defendant” … . “[A]lthough a relatively low threshold exists to demonstrate entitlement to an intoxication charge” … , “[e]vidence of intoxication, even under this standard, requires more than a bare assertion by a defendant that he [or she] was intoxicated” … . * * *

Here, in proving assault in the second degree, the People had the burden of establishing that defendant possessed the intent to “cause serious physical injury to another person” … . Although there was testimony that defendant was loud and obnoxious and was arguing with the bartender about the benefit poster just prior to the altercation, there was no testimony regarding interactions between the victim and defendant just prior to the altercation, which could have left a question in the jurors’ minds as to defendant’s intent and how things escalated as quickly as they did … . The testimony at trial regarding defendant entering the bar with a beer, consuming two more drinks prior to being refused service, coupled with the surveillance footage, established that the suspect consumed multiple alcoholic beverages within a short period of time prior to the assault … . Moreover … the surveillance footage revealed that someone looking strikingly similar to defendant consumed several alcoholic beverages hours before the assault and that, upon returning to the bar, exhibited markedly different behavior from earlier in the evening. Additionally, … the People’s expert witness testified that consumption of alcohol in excess can alter one’s personality, which supported his theory of voluntary intoxication. People v Adrian, 2022 NY Slip Op 05896, Third Dept 10-20-22

Practice Point: Here there was sufficient evidence, including expert evidence, of defendant’s intoxication to raise a doubt about whether defendant formulated the intent to commit assault second. Defendant’s request for the intoxication jury charge should have been granted.

 

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THE DEFENDANT WAS REPRESENTED AT TRIAL BUT REPRESENTED HIMSELF IN PRETRIAL PROCEEDINGS; THE JUDGE NEVER ADEQUATELY EXPLAINED THE RISKS OF REPRESENTING ONESELF OR THE DIFFERENCE BETWEEN AN ATTORNEY ACTING AS A “LEGAL ADVISOR” TO THE DEFENDANT AND AN ATTORNEY WHO “REPRESENTS” THE DEFENDANT; CONVICTION REVERSED AND MATTER REMITTED TO REPEAT PRETRIAL PROCEEDINGS (CT APP).

​The Court of Appeals, in a full-fledged opinion by Judge Troutman, reversing the appellate division, determined the judge never adequately explained to the defendant the risks associated with representing himself, and the judge did not explain the difference between an attorney who acts as a “legal advisor” to the defendant as opposed to an attorney who “represents” the defendant. Although the defendant was represented at trial, he was not represented during much of the pretrial proceedings. The matter was remitted to repeat the pretrial proceedings:

… [T]he court’s record exploration of the issue did not warn defendant of the risks of proceeding pro se or apprise him of the importance of a lawyer in the adversarial system, nor does the record as a whole demonstrate that defendant effectively waived his right to counsel. Initially, the court conducted no discussion whatsoever of these issues before stating that defendant was representing himself … . Although the court later told defendant that it was “not a great idea” to represent himself, that defendant was putting himself “in a very bad position,” and that a lawyer would have knowledge of criminal procedure that defendant did not, these brief, generalized warnings do not satisfy the requirement for a searching inquiry … . * * *

… [W]hen the court, in its discretion, permits standby counsel … , it should explain to the defendant the court’s rules regarding the role of a legal advisor or standby counsel and how that role differs from representation by an attorney. People v Baines, 2022 NY Slip Op 05919, CtApp 10-24-22

Practice Point: When a defendant seeks to represent himself, the judge must adequately explain the associated risks, as well as the difference between an attorney who acts as a “legal advisor” to the defendant and an attorney who “represents” the defendant. Here the defendant was represented at trial but not during some of the pretrial proceedings. The matter was remitted to repeat the pretrial proceedings.

 

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THE ALTERNATE JURORS WERE DISCHARGED JUST PRIOR TO THE LUNCH BREAK; A PROBLEM WITH A SITTING JUROR AROSE DURING THE BREAK AND THE JUROR WAS REMOVED; DELIBERATIONS HAD NOT YET BEGUN BUT THE ALTERNATE JURORS WERE NO LONGER AVAILABLE FOR SERVICE; THE JUDGE THEREFORE SHOULD NOT HAVE RECALLED ONE OF THE ALTERNATE JURORS; NEW TRIAL ORDERED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the appellate division and ordering a new trial, determined that once the alternate jurors were discharged they were not longer “available for service.” Therefore, the judge should not have seated one of the discharged alternate jurors after a trial juror was removed for alleged misconduct. The alternates were discharged just before the court broke for lunch. During the break, before deliberations had begun,  the problem with the sitting juror arose. The Court of Appeals noted that, had the judge waited to discharge the alternates until deliberations were about to begin, instead of before the lunch break, there would have been no need for a mistrial:

Prior to the start of deliberations in defendant’s trial, the court discharged the alternate jurors. A trial juror was subsequently challenged and ultimately removed for alleged misconduct, and the court recalled, questioned, and seated one of the discharged alternates. Seating of this discharged alternate juror was error. An alternate juror, once discharged, is no longer “available for service” as a replacement for a trial juror…. . * * *

… [W]hen the trial judge thanked the alternate jurors for their service and “excused [them] from this case,” the alternate jurors were discharged. At that point, the alternates “cease[d] to function” as jurors … and were no longer available for service under the statute. People v Murray, 2022 NY Slip Op 05916, CtApp 10-20-22

Practice Point: Once an alternate juror is discharged the alternate is no longer “available for service” and cannot be recalled even if deliberations have not yet begun.

 

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DESPITE THE DRIVER’S FAILURE TO USE A TURN SIGNAL AS THE JUSTIFICATION FOR THE TRAFFIC STOP, DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON THE GROUND THE STOP WAS ACTUALLY BASED UPON RACIAL PROFILING; IN THE FIRST DEPARTMENT THE “TURN SIGNAL” GROUND FOR THE STOP WOULD BE ENOUGH, EVEN IF THE STOP WAS ACTUALLY MOTIVATED BY DISCRIMINATION; NOT SO IN THE THIRD DEPARTMENT (THIRD DEPT).

The Third Department, reversing County Court, in a full-fledged opinion by Justice Lynch, disagreeing with the First Department, determined defendant was entitled to a hearing on his motion to vacate his conviction on the ground the traffic stop was motivated by racial profiling. The traffic stop was justified by the driver’s failure to use a turn signal. In the First Department, that is good enough, even if racial profiling was the real reason for the stop. Not so in the Third Department:

… [Defendant] asserted a violation of his constitutional rights … based on the allegedly discriminatory police stop. Defendant, who is black, supported this claim with sworn affidavits from himself and the vehicle’s driver. The driver — a white woman — averred in her affidavit that, during the police encounter, the investigator who initiated the stop chided her, saying “you stupid little white b****, you think this black guy cares about you, but he’s just using you to run drugs.” .* * *

… [W]e are mindful that both the majority and dissent in Robinson rejected as unworkable the “primary motivation” subjective test for a traffic stop (see People v Robinson, 97 NY2d at 353; id. at 371 …). We abide by that conclusion. Whether a traffic stop was premised on racial profiling must be assessed objectively with reference to the facts and circumstances of the encounter. Such considerations may include, for example, whether the arresting officers were involved in a plausible investigation prior to executing the vehicle stop. Also important — and certainly most relevant here — is consideration of the officers’ actions and comments during the encounter. …

Defendant [submitted] the sworn affidavit of the driver of the vehicle, who … recounted a highly concerning racist statement ostensibly made by the investigator conducting the stop. … [T]he People neither controverted the driver’s statement nor included an affidavit from the investigator doing so … . Having demonstrated his right to a hearing (see CPL 440.30 [5]), defendant bears the burden of proving his claims by a preponderance of the evidence … . In resolving the motion, the court should undertake an objective analysis of the facts and circumstances of the entire police encounter. People v Jones, 2022 NY Slip Op 05892, Third Dept 10-20-22

Practice Point: In the Third Department, even if there exists a valid reason for a vehicle stop, here the failure to use a turn signal, the stop may still be deemed invalid if it was motivated by racial profiling. In the First Department, the turn-signal violation would be enough, even if the actual motivation was discriminatory.

 

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DEFENSE COUNSEL WAITED UNTIL AFTER THE PROSECUTOR MADE SEVERAL ARGUABLY IMPROPER REMARKS IN SUMMATION BEFORE OBJECTING “TO ALL OF THIS;” THE OBJECTION WAS DEEMED UNTIMELY, VAGUE, AMBIGUOUS, GENERAL AND NONSPECIFIC; THEREFORE THE ISSUES RAISED BY THE PROSECUTOR’S REMARKS WERE NOT PRESERVED FOR APPEAL (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Dillon, over an extensive two-justice dissent, determined defense counsel did not make timely objections to remarks made by the prosecutor in summation. After several arguably improper comments by the prosecutor, defense counsel objected “to all of this.” The judge struck the only last of the prosecutor’s remarks. After the jury was charged and deliberating, defense counsel raised objections to several other remarks made by the prosecutor which were denied as untimely. The Second Department agreed the objections were not timely or specific and affirmed defendant’s conviction:

The objection of defense counsel most relevant to this appeal was to “all of this,” which was interposed only after the prosecutor likened a hypodermic needle to a dangerous instrument. The objection, as interposed, suffers from a number of problems in failing to preserve the issues now raised on appeal. First, the objection was vague and ambiguous. Second, it was untimely. Third, its language was general and nonspecific. The preservation rules … , requiring that objections be timely and specific rather than untimely and general, are basic, well-understood, and time-tested concepts, which should prompt no dispute in their application to this appellate record.

… The prosecutor had been speaking at some length, for a total of 28 uninterrupted sentences, before defense counsel interposed the objection at issue here. …

… As to [the] objection and its timing, the Supreme Court understandably treated it as applying to the last occurring statement of the prosecutor … . …

… For preservation, the defendant’s objection was … general, as it did not identify to the Supreme Court any particular argument or remark by the prosecutor or any specific basis. The basis for the objection was not explained, rendering the entire objection general and insufficient for preservation purposes … . …

Defense counsel initiated further colloquy with the Supreme Court about the subject objection after the jury had been charged and after the jury had begun its deliberations. By then, counsel’s objection was clearly untimely, as there was no longer an opportunity for the court to promptly make a curative ruling to the jury, had one even been indicated. People v Adorno, 2022 NY Slip Op 05856, Second Dept 10-19-22

Practice Point: The Second Department used this case to explain that, in order to preserve issues for appeal, objections must be timely and specific such that the trial court has the opportunity to address them. Here the prosecutor made several arguably improper remarks in summation before defense counsel objected “to all of this.” Defense counsel didn’t specify the nature of the objections until after the jury started deliberations. That was too late.

 

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