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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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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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