You are here: / Criminal Law

DEFENDANT’S OUT-OF-STATE CONVICTION DID NOT REQUIRE SUMMARY DENIAL OF DEFENDANT’S MOTION TO SEAL THE RECORDS OF HIS NEW YORK CONVICTION; HOWEVER, THE OUT-OF-STATE CONVICTION MUST BE PART OF THE ANALYSIS OF THE APPROPRIATENESS OF SEALING THE NEW YORK RECORDS; SUPREME COURT GRANTED THE MOTION WITHOUT CONSIDERING THE OUT-OF-STATE CONVICTION; MATTER REMITTED FOR A HEARING (SECOND DEPT).

​The Second Department, In a full-fledged opinion by Justice Connolly, reversing Supreme Court, determined that an out-of-state conviction should be considered where defendant seeks to seal the records of a New York conviction. Here Supreme Court had granted the motion to seal, finding that only New York convictions need be considered. The matter was remitted for a hearing in which the out-of-state conviction would be part of the analysis:

This appeal presents the question of whether CPL 160.59(3)(f) requires a court to summarily deny a defendant’s motion to seal an eligible offense where the defendant subsequently has been convicted of a crime under the laws of another state. We hold that CPL 160.59(3)(f) does not require summary denial under these circumstances. Instead, a defendant’s subsequent conviction under the laws of another state is a factor that the motion court should consider in its discretionary determination as to whether to seal the eligible offense … . * * *

… [A] hearing is … appropriate in this case. Although the defendant’s 2018 Virginia misdemeanor conviction was not a ground to summarily deny the defendant’s motion to seal, at the hearing, the parties may provide additional evidence related to that conviction, as well as any other evidence relevant to the determination of the defendant’s motion. Further, assuming that the defendant was in fact convicted of a misdemeanor in Virginia, the Supreme Court should consider that conviction and the nature and circumstances of the underlying conduct in making its discretionary determination as to whether to grant the defendant’s motion to seal. The court should also consider how the conviction reflects upon the defendant’s character under CPL 160.59(7)(d). In particular, we note that the defendant’s affidavit failed to disclose the existence of the 2018 Virginia misdemeanor conviction or explain the circumstances surrounding the conviction. Further, the affirmation of the defendant’s attorney affirmatively stated that the defendant had no contact with the criminal justice system since his 1990 New York conviction, which does not appear to be accurate. Upon remittal, the court should consider all of these circumstances, as well as the nonexhaustive list of factors in CPL 160.59(7), in its new determination of the defendant’s motion to seal. …

Although the Supreme Court properly determined that it was not required to summarily deny the defendant’s motion to seal his 1990 conviction for attempted grand larceny in the third degree pursuant to CPL 160.59(3)(f), as the People opposed the defendant’s motion to seal, the court was required to hold a hearing pursuant to CPL 160.59(6). People v Witherspoon, 2022 NY Slip Op 05866, Second Dept 10-19-22

Practice Point: A motion to seal the records of a New York conviction need not be summarily denied because of an out-of-state conviction. However, the out-of-state conviction must be considered as a factor in the analysis of the appropriateness of sealing the New York records.

 

, ,

THERE WERE DISPUTED FACTS CONCERNING WHETHER DEFENDANT BREACHED THE COOPERATION AGREEMENT; THE JUDGE SHOULD HAVE HELD A HEARING TO RESOLVE THE DISPUTED FACTS; DEFENDANT’S CONVICTION BY GUILTY PLEA REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction by guilty plea, determined the judge should not have determined defendant breached the cooperation agreement without a hearing. The prosecutor argued defendant breached the agreement by not providing information which defendant didn’t reveal until he was about to testify against a codefendant in accordance with the agreement. The defendant argued the information did not relate to the codefendant and he did not believe it was relevant at the time the cooperation agreement was created:

“[S]entencing is a critical stage of the criminal proceeding and . . . ‘the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause'” … . Generally, “a guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” … , but, where no promises are breached by the People and a defendant fails to abide by the terms of a cooperation agreement, a court is not obligated to permit a defendant to withdraw his plea … . Under the circumstances present here, these important issues have not been adequately resolved because the Supreme Court failed to hold a hearing or conduct a sufficient inquiry into whether the defendant violated the terms of the cooperation agreement … . …

This record reflects that the parties are sharply at odds as to whether there was a material breach of the cooperation agreement when the defendant provided additional information in response to new evidence shown to him during the codefendant’s trial … . The determination of this issue rests on nuanced considerations, including the defendant’s intent and the prosecutors’ interactions with the defendant while preparing for the codefendant’s trial. A hearing would have provided, among other things, an opportunity for the defendant to testify about the nature of the belatedly disclosed information, his reasons therefor, and his understanding of its importance to the case against the codefendant. People v Owensford, 2022 NY Slip Op 05716, Second Dept 10-12-22

Practice Point: Here there were nuanced disputed facts concerning whether defendant breached the cooperation agreement. The judge should have held a hearing to resolve the disputed facts. Conviction reversed and matter remitted.

 

THE PEOPLE ARE NOT REQUIRED TO HAVE THEIR WITNESSES READY FOR TRIAL IN ORDER FOR A STATEMENT OF READINESS TO BE VALID; THE MOTION TO DISMISS THE INDICTMENT ON SPEEDY-TRIAL GROUNDS SHOULD NOT HAVE BEEN GRANTED; THE STATEMENTS OF READINESS WERE NOT ILLUSORY; THERE WAS A DISSENT (FOURTH DEPT).

The Fourth Department, reversing County Court’s speedy-trial dismissal of the indictment, over a dissent, determined County Court should not have deemed several of the prosecutor’s statements of readiness illusory because the witnesses were not ready for trial at the time the statements were made:

Prior to August 4, 2021, no adjournment was caused by the People’s failure to have their witnesses ready for trial. Rather, the matter was adjourned on those occasions due to other, older matters proceeding to trial before this case was reached. “The People are not required to contact their witnesses on every adjourned date . . . , nor do they have to be able to produce their witnesses instantaneously in order for a statement of readiness to be valid” … . To the contrary, ” ‘[p]ostreadiness delay may be charge[able] to the People when the delay is attributable to their inaction and directly implicates their ability to proceed to trial’ ” … . Here, although the time after the People withdrew their statement of readiness was properly charged to them, there was no prior delay attributable to the People’s inaction. Consequently, the prior statements of readiness were not illusory … . People v Hill, 2022 NY Slip Op 05626, Fourth Dept 10-7-22

Practice Point: Here the prosecutor acknowledged the trial witnesses had not be contacted at the time statements of readiness were made because other trials were scheduled before the trial in this case. No delay was attributable to the People’s inaction. Therefore the statements of readiness should not have been deemed illusory and the indictment should not have been dismissed on speedy-trial grounds.

 

,

A MOTION TO SET ASIDE A VERDICT PURSUANT TO CPL 330.30 (1) MUST BE BASED UPON MATTERS IN THE RECORD WHICH HAVE BEEN PRESERVED FOR APPEAL; A MOTION TO SET ASIDE A VERDICT PURSUANT TO CPL 330.30 (2) CAN BE BASED UPON JUROR MISCONDUCT OF WHICH THE DEFENDANT WAS NOT AWARE PRIOR TO THE VERDICT; BUT HERE THE DEFENSE WAS AWARE OF THE ALLEGED MISCONDUCT PRIOR TO THE VERDICT AND DID NOT OBJECT (FOURTH DEPT).

The Fourth Department explained that a motion to set aside a verdict pursuant to CPL 330.30 (1) or (2) cannot be based upon an issue the defense could have addressed (but did not) prior to the verdict. Although CPL 330.30 (2) allows a motion to set aside the verdict based upon juror conduct of which the defendant was not aware prior to the verdict, here the defense was aware of the alleged juror conduct:

” ‘A trial court’s authority to set aside a verdict under CPL 330.30 (1) is limited to grounds which, if raised on appeal, would require reversal as a matter of law . . . Accordingly, only a claim of error that is properly preserved for appellate review may serve as the basis to set aside the verdict’ ” … . Here, despite being afforded an opportunity to object or seek further relief when the court brought the issue to the parties’ attention during deliberations, defendant did not do so and thus failed to preserve his claim … .. The court therefore properly denied without a hearing the motion insofar as it was based on CPL 330.30 (1) because defendant’s unpreserved argument “did not furnish a proper predicate for setting aside the verdict” … .

A trial court is also authorized to set aside a verdict on the ground that “during the trial there occurred, out of the presence of the court, improper conduct by a juror, or improper conduct by another person in relation to a juror, which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict” (CPL 330.30 [2] …). Here, the record establishes that the alleged juror misconduct “was addressed by the court and counsel on the record at the time of trial” and that defendant thus “had knowledge of the matter prior to the verdict” … . We therefore conclude that the court properly denied without a hearing the motion insofar as it was based on CPL 330.30 (2) because “the juror misconduct alleged was known to . . . defendant and . . . defendant had the opportunity to act on the information but failed to do so prior to the verdict” … .People v Kenney, 2022 NY Slip Op 05645, Fourth Dept 10-7-22

Practice Point: A motion to set aside the verdict pursuant to CPL 330.30 (1) must be based upon preserved errors which could be raised on appeal. A motion to set aside the verdict pursuant to CPL 330.30 (2) may be based upon juror misconduct of which the defendant was not aware prior to the verdict. Here, however, the defense was aware of the conduct and did not object.

 

,

A MOTION TO SET ASIDE A JURY VERDICT PURSUANT TO CPL 330.30 (1) MUST BE BASED UPON MATTERS IN THE RECORD; I.E., ISSUES THAT CAN BE RAISED ON APPEAL; HERE THE MOTION WAS BASED ON MATTERS OUTSIDE THE RECORD AND SHOULD HAVE BEEN DENIED ON THAT GROUND (FOURTH DEPT).

The Fourth Department, reversing County Court’s granting of defendant’s CPL 330.30 (1) motion to set aside the jury verdict, determined the motion was improperly based upon matters outside the record. A CPL 330.30 (1) motion must be based upon issues which can be raised on appeal:

Pursuant to CPL 330.30 (1), following the issuance of a verdict and before sentencing a court may set aside a verdict on “[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.” Defendant’s motion to set aside the verdict pursuant to CPL 330.30 (1) was procedurally improper because it was “premised on matters outside the existing trial record, and CPL 330.30 (1) did not permit defendant[] to expand the record to include matters that did not ‘appear[ ] in the record’ prior to the filing of the motion[]” … . We therefore reverse the order, deny the motion, and reinstate the verdict inasmuch as defendant’s claim was not reviewable pursuant to CPL 330.30 (1) … . People v Allen, 2022 NY Slip Op 05647, Fourth Dept 10-7-22

Practice Point: A motion to set aside a jury verdict pursuant to CPL 330.30 (1) must be based upon matters which are in the record; i.e., issues which can be raised on appeal. Here the motion was based on matters outside the record and should have been denied on that ground.

 

,

THE DEFENDANT, WHO WAS BEING TREATED AT THE HOSPITAL, WAS IN CUSTODY AND HAD NOT BEEN INFORMED OF HIS MIRANDA RIGHTS; THE DEFENDANT CALLED A POLICE OFFICER OVER AND SAID “I’M BEAT UP;” THE OFFICER THEN ASKED “WHAT HAPPENED?”; DEFENDANT’S ANSWER WAS NOT SPONTANEOUS AND SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined statements made by the defendant to a police officer while he was being treated at the hospital should have been suppressed. Although the initial statement “I’m beat up” was spontaneous, the statements made after the police officer asked “what happened?” were not spontaneous and were made while the defendant was in custody:

… [I]t is undisputed that defendant was in police custody at the time he made the statements and that no one read defendant his Miranda warnings prior to defendant making the statements.

The officer testified at the suppression hearing that defendant “called [the officer] over” to his bed and said “I’m beat up,” after which the officer asked defendant “what happened.” Defendant then explained the circumstances surrounding how he allegedly came into possession of a weapon he was not legally authorized to possess. We conclude that defendant’s initial statement, “I’m beat up,” was not subject to suppression because it was ” ‘spontaneous and not the result of inducement, provocation, encouragement or acquiescence’ ” … . The court, however, erred in refusing to suppress the remainder of his statements, which were made in response to the officer’s question that was intended to elicit a response, and thus those statements cannot be said to have been “genuine[ly] spontane[ous],” i.e., they were not ” ‘spontaneous in the literal sense of that word as having been made without apparent external cause’ ” … . People v Corey, 2022 NY Slip Op 05646, Fourth Dept 10-7-22

Practice Point: Although defendant’s initial statement to the police office “I;m beat up” was spontaneous and not subject to suppression, defendant’s answer to the officer’s question “what happened?” was not spontaneous and should have been suppressed.

 

,

REFUSING TO SUBMIT TO A DWI BREATH TEST IS NOT AN OFFENSE (FOURTH DEPT).

The Fourth Department, reversing the conviction, noted that refusing to submit to a DWI field screening test (Alco-Sensor breath test) is not an offense:

We agree with defendant … that his “refusal to submit to a [field screening device] did not establish a cognizable offense” (People v Alim, 204 AD3d 1418, 1419 [4th Dept 2022]  … ; see People v Bembry, 199 AD3d 1340, 1342 [4th Dept 2021] …). We therefore modify the judgment by reversing that part convicting defendant of count seven of the indictment and dismissing that count. People v Shirley, 2022 NY Slip Op 05631, Fourth Dept 10-7-22

Practice Point: Refusing to submit to a DWI breath test is not an offense. The “conviction” was reversed that the indictment count was dismissed.

 

, ,

THE JUDGE DENIED DEFENDANT’S REQUEST FOR NEW COUNSEL WITHOUT INQUIRING ABOUT THE REASON FOR THE REQUEST; CONVICTION REVERSED (FIRST DEPT). ​

The First Department, reversing defendant’s conviction, determined the judge should have allowed the defendant to explain the reason he was requesting new counsel:

Defendant is entitled to a new trial because the court denied his request for new counsel without making any inquiry, and without giving defendant any opportunity to explain the basis for his request (see People v McCummings, 124 AD3d 502, 502-03 [1st Dept 2015]; People v Rodriguez, 46 AD3d 396 [1st Dept 2007], lv denied 10 NY3d 844 [2007]). People v Resheroop, 2022 NY Slip Op 05606, First Dept 10-6-22

Practice Point: Here the defendant asked for new counsel and the judge denied the request without asking for its basis. The appellate court reversed the conviction and ordered a new trial.

 

, ,

THE AMOUNT OF RESTITUTION IS PART OF THE SENTENCE AND MUST BE PRONOUNCED AT SENTENCING; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL AND SURVIVES A WAIVER OF APPEAL (SECOND DEPT).

The Second Department determined the judge’s failure to pronounce the amount of restitution at sentencing required vacating the imposition of restitution and remitting the matter for further proceedings. The issue does not need to be preserved for appeal and is not precluded by a waiver of appeal:

“CPL 380.20 and 380.40(1) collectively require that courts ‘must pronounce sentence in every case where a conviction is entered’ and that—subject to limited exceptions not relevant here—'[t]he defendant must be personally present at the time sentence is pronounced'” … . “Restitution is a component of the sentence to which CPL 380.20 and 380.40(1) apply” … . A violation of CPL 380.20 or 380.40(1) “may be addressed on direct appeal notwithstanding a valid waiver of the right to appeal or the defendant’s failure to preserve the issue for appellate review” … .

Here, it is undisputed that the precise dollar amount of restitution was not pronounced by the County Court at the time of sentencing, or at any other point on the record. “The County Court should have, but failed to, fix the amount and terms of restitution at the time it pronounced the sentence[s] of which restitution was to be a part” … . People v Long, 2022 NY Slip Op 05545, Second Dept 10-5-22

Practice Point: Restitution is part of the sentence and must be pronounced at sentencing. The issue need not be preserved for appeal and survives a waiver of appeal.

 

,

DEFENDANT MOVED TO VACATE HIS CONVICTION BY GUILTY PLEA ON THE GROUND HE WAS NOT AWARE HE COULD PERMANENTLY LOSE HIS DRIVER LICENSE BASED ON THE PLEA; THE MOTION SHOULD NOT HAVE BEEN GRANTED; POST-REVOCATION RELICENSING IS OUTSIDE OF THE COURTS’ CONTROL (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction by guilty plea should not have been granted. Defendant argued he would not have pled guilty had he realized he could permanently lose his driver license. The regulation which allowed permanent revocation of defendant’s license did not exist at the time of the plea:

The subject regulations that led to the denial of the defendant’s application to restore his driver license did not exist at the time he pleaded guilty, and the defendant failed to identify any conduct that occurred during the plea proceedings that constituted a violation of his due process rights … . “The defendant’s grievance lies with the enactment and enforcement of the new regulation, not the manner of his conviction” … .

… [T]he loss of a driver license is a collateral consequence of a plea of guilty and is not a consequence within the control of the court system … . The Supreme Court had no duty to inform the defendant of this consequence during the plea colloquy … . As the Court of Appeals stated in Matter of Acevedo v New York State Dept. of Motor Vehs. (29 NY3d at 220), “the Commissioner [of the DMV] will have exclusive authority over post-revocation relicensing, and . . . those relicensing determinations will be discretionary.” People v DiTore, 2022 NY Slip Op 05541, Second Dept 10-5-22

Practice Point: Courts have no control over post-revocation relicensing. The Department of Motor Vehicles has exclusive jurisdiction over relicensing. Here defendant’s motion to vacate his conviction by guilty plea on the ground he was not aware he could permanently lose his driver license should not have been granted.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy