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THE PLEA ALLOCUTION RAISED THE POSSIBILITY OF DURESS AS AN AFFIRMATIVE DEFENSE; THE JUDGE MADE NO INQUIRY INTO THE VALIDITY OF PLEA; CONVICTION REVERSED DESPITE DEFENDANT’S FAILURE TO MOVE TO WITHDRAW THE PLEA (SECOND DEPT).

The Second Department, reversing defendant’s conviction by guilty plea, determined the plea allocution raised duress as a possible affirmative defense and the judge did not inquire into the validity of the plea. The issue was considered on appeal despite the failure to move to withdraw the plea:

To be valid, a plea of guilty must be entered voluntarily, knowingly, and intelligently … . Generally, a defendant must preserve for appellate review a challenge to the validity of a guilty plea … . When, however, a “defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea,” the court has a duty to inquire further to make sure that the defendant understands the nature of the charge and that the plea has been intelligently entered … . Where the court failed in its duty to inquire further, a defendant may raise a claim regarding the validity of the plea even without having moved to withdraw the plea … .

In this case, the defendant’s contention challenging the validity of his plea of guilty is unpreserved for appellate review since he did not move to withdraw his plea or otherwise raise that issue prior to the imposition of sentence … . However, the County Court’s failure to inquire into the validity of the plea after the defendant’s allocution raised the possibility of an affirmative defense based on duress (see Penal Law § 40.00) permits the defendant to challenge the sufficiency of the allocution on direct appeal, and requires reversal of the judgment of conviction … . People v Rodriguez, 2023 NY Slip Op 00678, Second Dept 2-8-23

Practice Point: Here the defendant’s allocution raised the possibility he had duress as an affirmative defense but the judge made no inquiry into the validity of the plea. Despite the defendant’s failure to preserve the error by moving to withdraw the plea, the appellate court reversed his conviction.

 

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AFTER COMPLAINING THAT A JUROR APPEARED TO BE SLEEPING AT TIMES, DEFENSE COUNSEL MADE A MOTION TO DISQUALIFY HIM; THE JUDGE DID NOT MAKE AN ADEQUATE INQUIRY BEFORE DENYING THE MOTION; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the judge did not make a sufficient inquiry of juror number 2 after complaints from defense counsel and the prosecutor that he appeared to be sleeping at times. The judge’s denial of the defense motion to disqualify the juror was therefore based on speculation:

The court never asked juror number two during any of the inquiries if he had fallen asleep or was sleepy. During the third inquiry, the court did not ask juror number two about defense counsel’s specific observations, including that juror number two had allegedly put his head back with his eyes closed and his mouth dropped. The court also failed to ask juror number two what he meant by his equivocal statement that he “[m]ore or less” understood the jury charge, or to ask if there were any specific portions of the jury charge that juror number two did not understand. Although the court did state at one point that “[w]e have not seen [juror number two] sleeping,” the statement, in context, indicates that the court was correcting defense counsel’s misstatement, rather than making its own observation. Likewise, a statement by a court officer that he had not observed juror number two sleeping was not determinative in this case because defense counsel’s assertion that the officer was seated behind juror number two was uncontradicted … . Since the court failed to ask during the third inquiry whether juror number two had fallen asleep during the jury charge, whether he had difficulty staying awake, or about any of defense counsel’s specific observations, its determination that juror number two was not grossly unqualified to serve was based on speculation … . People v Mentor, 2023 NY Slip Op 00677, Second Dept 2-8-23

Practice Point: When it appears a juror has been sleeping at times and a motion to disqualify the juror is made, the judge must make a sufficient inquiry before ruling on the motion. Here the denial of the motion to disqualify was not preceded by a sufficient inquiry and defendant’s conviction was reversed.

 

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THE JUDGE’S FAILURE TO INFORM DEFENDANT OF POSTRELEASE SUPERVISION RENDERED DEFENDANT’S ADMISSION TO A PROBATION VIOLATION INVALID; THE ISSUE WAS CONSIDERED ON APPEAL DESPITE THE ABSENCE OF A MOTION TO WITHDRAW THE ADMISSION (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the judge’s failure to inform defendant of postrelease supervision rendered the admission invalid. The issue may be raised on appeal despite the absence of a motion to withdraw the plea:

Defendant contends that his admission was not knowing, voluntary and intelligent because County Court failed to inform him at any time that he would be subject to postrelease supervision if the court sentenced him to prison. We agree. The People contend that defendant’s challenge to the voluntariness of his admission is not preserved for our review, inasmuch as he failed to move to withdraw his admission, but we reject that contention. Although defendant pleaded guilty to a probation violation, as opposed to a crime, “where a trial judge does not fulfill the obligation to advise a defendant of postrelease supervision during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a postallocution motion” … . People v Bell, 2023 NY Slip Op 00594, Fourth Dept 2-3-23

Practice Point: Here the judge did not inform the defendant of postrelease supervision before he admitted to a probation violation. The admission was reversed on appeal despite the absence of a motion to withdraw the admission.

 

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BASED ON THE PEOPLE’S THEORY, THE JURY SHOULD NOT HAVE BEEN INSTRUCTED POSSESSION OF A WEAPON IS PRESUMPTIVE EVIDENCE OF AN INTENT TO USE IT UNLAWFULLY AGAINST ANOTHER; DEFENDANT’S REQUEST TO CALL A WITNESS SHOULD NOT HAVE BEEN DENIED; DEFENDANT’S REQUEST FOR $1000 TO HIRE A PSYCHIATRIC EXPERT SHOULD NOT HAVE BEEN DENIED; NEW TRIAL ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction, determined the judge (1) should not have instructed the jury that possession of a weapon is presumptive evidence of an intent to use it unlawfully against another (2) should not have prevented defendant from calling as a witness a nurse practitioner who treated him at a psychiatric facility and (3) should have granted defendant’s request pursuant to the County Law for $1000 to hire a psychiatric expert:

County Court erred in charging the jury with respect to the presumption set forth in Penal Law § 265.15 (4) concerning the possession of weapons, i.e., that the possession by any person of any weapon is presumptive evidence of intent to use the same unlawfully against another. Pursuant to the statute, that presumption applies only where the defendant possesses the weapon in question (see Penal Law § 265.15 [4] …). Here, the People did not proceed on any theory that defendant had possession of the weapon at issue. … .

… [T]he court abused its discretion by precluding defendant from calling a proposed witness at trial, namely, a nurse practitioner who treated him at the Mohawk Valley Psychiatric Center prior to the incident, on the grounds that her testimony was not relevant and that defendant failed to give timely notice under CPL 250.10 (1) (c). It is well settled that “[a criminal] defendant has a fundamental right to call witnesses in his [or her] own behalf” … . Here, defendant established that the proposed witness would have provided relevant testimony with respect to his defense and also established good cause for the delay in the notice, and the People failed to establish any prejudice … .

“Pursuant to County Law § 722-c, upon a finding of necessity, a court shall authorize expert services on behalf of a defendant, and only in extraordinary circumstances may a court provide for compensation in excess of $1,000 per expert” … . Here, we conclude that the court abused its discretion by denying defendant’s application on the sole ground that defendant had a retained attorney … . People v Osman, 2023 NY Slip Op 00581, Fourth Dept 2-3-23

Practice Point: Based on the People’s theory the jury should not have been instructed that possession of weapon is presumptive evidence of an intent to use it unlawfully against another. The defendant’s request to call a witness who could offer relevant evidence should not have been denied where the delay in notification was explained and there was no prejudice. The defendant’s request pursuant to the County Law for $1000 to hire a psychiatric expert should have been granted.

 

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THE CORRECTION LAW REQUIRING A SEX OFFENDER TO VERIFY HIS OR HER ADDRESS EVERY NINETY DAYS IS VOID FOR VAGUENESS AS APPLIED TO HOMELESS SEX OFFENDERS (FIRST DEPT). ​

The First Department, vacating defendant’s guilty pleas, in a full-fledged opinion by Justice Renwick, determined the Correction-Law requirement that a sex offender verify his or her address every 90 days is void for vagueness as applied to homeless sex offenders:

… [T]he question is whether the reporting requirements of Correction Law § 168-f(3) provided sufficient notice to defendant of what conduct was mandated by the statute when he left his previous residence address, a homeless shelter, but possessed no new permanent or temporary residence with an address. According to its plain language, Correction Law § 168-f(3) mandates that offenders register a change of residence by providing a specific new “address.” The statute, however, contains no objective standard or guidelines that would put homeless sex offenders without an address on notice of what conduct is required of them. Under these circumstances, such transient offenders can only guess at what is meant by the requirement that they register their new “address.” Similarly, the change of address reporting requirement fails to provide even minimal guidelines for the registering authorities in these regards, thus encouraging arbitrary enforcement. People v Allen, 2023 NY Slip Op 00496, First Dept 2-2-23

Practice Point: The Correction Law requiring a sex offender to verify his or her address every ninety days is void for vagueness as applied to homeless sex offenders.

 

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DEFENSE COUNSEL MOVED TO SUPPRESS AN UNNOTICED EYEWITNESS IDENTIFICATION OF THE DEFENDANT AFTER BEING TOLD THE IDENTIFICATION WOULD BE PRECLUDED IF HE DID NOT MOVE TO SUPPRESS; DEFENSE COUNSEL INTRODUCED DEFENDANT’S MUG SHOT DESPITE THE SUPPRESSION OF THE PHOTO ID; DEFENSE COUNSEL DID NOT OBJECT TO A DETECTIVE’S IMPROPER IDENTIFICATION OF THE DEFENDANT IN A BLURRY VIDEO; THE MOTION TO VACATE DEFENDANT’S CONVICTION ON INEFFECTIVE ASSSISTANCE GROUNDS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should have been granted. Defense counsel moved to suppress an unnoticed eyewitness identification knowing that the evidence would have been precluded had he not moved to suppress. Defense counsel introduced the mug shot of the defendant, despite the suppression of the photo identification. Defense counsel did not object to the improper identification of the defendant in a blurry video by a detective:

The record does not support the hearing court’s determination that counsel’s waiver of preclusion of the unnoticed identification made by the sole eyewitness to the shooting was a legitimate trial strategy … . … [T]rial counsel initially did not appreciate that by moving to suppress the identification, he waived preclusion of the unnoticed identification under CPL 710.30(3). …

… [A]lthough the suppression hearing court had suppressed this witness’s photo identification of defendant, counsel nevertheless introduced at trial the mug shot shown to the witness. …

… [T]rial counsel did not object to a detective’s improper identification of defendant in a blurry video … . People v McCray, 2023 NY Slip Op 00502, First Dept 2-2-23

Practice Point: If the People do not provide timely notice of an identification of the defendant, the evidence will be precluded. If however a motion to suppress the identification is made, it will not be precluded. Here making the motion to suppress was deemed ineffective assistance.

Practice Point: Counsel was ineffective for introducing the mug shot of the defendant after the photo identification had been suppressed.

Practice Point: Counsel was ineffective for failing to object to a detective’s improper identification of the defendant in a blurry video.

 

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THE JUDGE’S LAW CLERK WHEN DEFENDANT’S MOTION TO VACATE HIS CONVICTION WAS MADE WAS THE DISTRICT ATTORNEY WHEN DEFENDANT WAS INDICTED AND PROSECUTED; THE APPEARANCE OF A CONFLICT OF INTEREST REQUIRED REVERSAL AND REMITTAL; ALTHOUGH THE ISSUE WAS NOT BEFORE COUNTY COURT, THE ISSUE WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing the denial of defendant’s motion to vacate his conviction, determined the fact that the judge’s law clerk was District Attorney at the time of defendant’s indictment and prosecution presented the appearance of a conflict of interest:

… [T]he law clerk here does not appear to have been directly involved in defendant’s case during her term as District Attorney, nor do the allegations contained within defendant’s CPL 440.10 motion implicate the law clerk’s conduct in her former capacity as District Attorney. That said, it has been observed that “[a] law clerk is probably the one participant in the judicial process whose duties and responsibilities are most intimately connected with the judge’s own exercise of the judicial function” … , and it is well settled that “[n]ot only must judges actually be neutral, they must appear so as well” … . Accordingly, it was an improvident exercise of County Court’s discretion to rule upon defendant’s CPL 440.10 motion under these circumstances … . People v Thornton, 2023 NY Slip Op 00460, Third Dept 2-2-23

Practice Point: Although the issue was not raised in County Court, the Third Department considered the issue in the interest of justice and reversed the denial of defendant’s motion to vacate his conviction because of the appearance of a conflict of interest. The judge’s law clerk was the District Attorney at the time defendant was indicted and prosecuted.

 

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THE MAJORITY HELD THE RECORD WAS SILENT ON WHETHER THE POLICE, WHO DID NOT APPLY FOR A NO-KNOCK WARRANT, ENTERED THE APARTMENT WITHOUT PROPER NOTICE TO THE OCCUPANTS AND THE ISSUE WAS NOT PRESERVED FOR APPEAL; THE DISSENT ARGUED THE ISSUE CAN BE ADDRESSED ON APPEAL UNDER INEFFECTIVE ASSISTANCE (FAILURE TO MOVE TO SUPPRESS), THE RECORD SUPPORTED AN UNAUTHORIZED NO-KNOCK ENTRY AND THE SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the issue whether the police did not give proper notice to the occupants prior to entering and searching premises was not preserved for appeal. The two dissenters argued the issue can be addressed by the appellate court under the ineffective-assistance argument (no motion to suppress based on failure to provide proper notice before entering) and the seized evidence should have been suppressed. The police did not apply for a no-knock warrant and, according to the dissent, entered the apartment using a battering ram before announcing their presence:

… [T]he record is silent as to what the police said or did prior to effectuating entry into the apartment. Thus, without resort to inappropriate speculation, it simply cannot be concluded from the record before us that the police failed to knock and announce their presence before forcefully entering the apartment. * * *

From the dissent:

In our view, the record confirms, by the police officers’ own trial testimony, that they did not provide any advance notice prior to entering the apartment where defendant was ultimately apprehended. The record shows that members of the involved emergency response team (hereinafter ERT) entered the apartment through a rear door into a kitchen area that led to a living room. When asked how the door was opened, Jason Blowers — a police officer with the City of Johnstown Police Department — explained that “the breacher opened the door, the mechanical breach . . . . He hit the door with a ram.” Sergeant Michael Pendrick, the first member of the ERT to enter the apartment, confirmed as much, testifying: “[a]s we approached the rear apartment door . . . another officer had breached the door, the door popped open.” People v Hayward, 2023 NY Slip Op 00461, Third Dept 2-2-23

Practice Point: The majority found the record silent on whether the police, who did not apply for a no-knock warrant, entered the apartment without giving proper notice to the occupants and held the issue was not preserved for appeal. The two-justice dissent argued the issue could be addressed on appeal as ineffective-assistance (failure to move to suppress) and the evidence demonstrated the police entered with a battering ram before announcing their presence.

 

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DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE TO LEVEL ONE; THE PRIOR RAPE (THE JUSTIFICATION FOR COUNTY COURT’S LEVEL THREE DESIGNATION) STEMMED FROM AN ONGOING RELATIONSHIP WITH THE VICTIM WHO WAS UNABLE TO CONSENT SOLELY BECAUSE OF HER AGE (SECOND DEPT).

The Second Department, reversing County Court, determined defendant was entitled to a downward departure to a level one sex offender designation. County Court had designated defendant a lever three offender because of a prior rape-third conviction. The rape-third conviction was based solely on the victim’s inability to consent due to her age. The defendant and the victim had been in a long-term relationship:

… [T]he unusual circumstances established by the defendant … are not accounted for by the Guidelines and tend to demonstrate a lower likelihood of reoffense and danger to the community. With respect to the first felony conviction serving as a predicate for the override, rape in the third degree, the People acknowledged that the victim’s lack of consent was solely by reason of inability to consent because of her age. Further, the record reflects that conduct underlying this crime was an ongoing relationship between the defendant and the victim. During this relationship, a video depicting sexual conduct between the defendant and the victim was taken. This video, depicting the same conduct for which the defendant was convicted of rape in the third degree and designated a level one sex offender, was discovered by a probation officer approximately a year later, and served as the basis for the defendant’s second sex-related felony conviction, possessing a sexual performance by a child. People v Hernandez, 2023 NY Slip Op 00451, Second Dept 2-1-23

Practice Point: Here defendant was entitled to a downward departure to a level one sex offender designation. The rape which County Court relied on for a level three designation stemmed from an ongoing relationship with the victim who was unable to consent solely because of her age.

 

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A PRESENTENCE REPORT MUST BE CREATED FOR EACH OFFENSE; HERE THE JUDGE USED A PRESENTENCE REPORT PREPARED FOR A DIFFERENT UNRELATED OFFENSE; THE SENTENCE WAS ILLEGALLY IMPOSED (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined the sentencing court should not have used a presentence report created for an earlier, unrelated offense. A unique presentence report for each offense is mandatory:

CPL 390.20 provides that “[i]n any case where a person is convicted of a felony, the court must order a pre-sentence investigation of the defendant and it may not pronounce sentence until it has received a written report of such investigation” (CPL 390.20[1]). This statutory language is mandatory … and a sentencing court’s failure to obtain a presentence report renders the sentence imposed invalid as a matter of law … .

Here, the County Court sentenced the defendant on the murder conviction without ordering or receiving a presentence report relating to the murder conviction. Instead, the court relied on a presentence report prepared in connection with the defendant’s conviction of attempted criminal possession of a controlled substance in the third degree, the facts and circumstances of which were not related to the facts and circumstances of the murder conviction. … [T]his did not satisfy the requirements of CPL 390.20, and therefore the sentence was illegally imposed. People v Shearer, 2023 NY Slip Op 00445, Second Dept 2-1-23

Practice Point: A judge cannot use a presentence report prepared for one offense in a sentencing for a different, unrelated offense.

 

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