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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.

 

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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.

 

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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.

 

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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.

 

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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.

 

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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.

 

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APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO MAKE A MOTION ALERTING THE APPELLATE COURT TO A COURT OF APPEALS DECISION WHICH CAME DOWN AFTER THE BRIEFS WERE FILED BUT BEFORE THE APPELLATE RULING; MOTION FOR WRIT OF ERROR CORAM NOBIS GRANTED (FOURTH DEPT).

The Fourth Department granted the defendant’s motion for writ of error coram nobis on the ground appellate counsel was ineffective. Although the Court of Appeals decision mandating that sentencing judges consider youthful offender status came down after the briefs were filed, appellate counsel should have made a motion to raise the issue:

Defendant contends that he was denied effective assistance of appellate counsel because counsel failed to raise an issue on direct appeal, specifically, whether Supreme Court failed to determine whether defendant should be afforded youthful offender status. Upon our review of the motion papers and under the circumstances presented here, we conclude that appellate counsel’s representation was not constitutionally adequate. “As held by the Court of Appeals in People v Rudolph (21 NY3d 497, 501 [2013]), CPL 720.20 (1) requires ‘that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain’ ” …  Here, there is nothing in the record demonstrating that the court considered whether to adjudicate defendant a youthful offender, even though defendant, who was convicted of manslaughter in the first degree (Penal Law § 125.20 [1]) was presumably eligible … . Although the Court of Appeals decided Rudolph after appellate counsel filed the briefs on appeal and shortly before this Court affirmed defendant’s judgment on appeal, the standard of meaningful representation required appellate counsel to, after Rudolph was decided, seek to file an appropriate motion in this Court in order to raise the argument that Rudolph requires that the sentence must be vacated and the matter remitted for determination of defendant’s youthful offender status …  The order of July 5, 2013 is vacated and this Court will consider the appeal de novo … . Defendant is directed to file and serve his records and brief with this Court on or before January 23, 2023. People v Nathan, 2022 NY Slip Op 05479, Fourth Dept 9-30-22

Practice Point: A motion for writ of error coram nobis is a post-appeal tool for arguing appellate counsel was ineffective. Here a Court of Appeals decision requiring sentencing judges to consider youthful offender status even if not raised by the defendant came down after the briefs were filed but before the ruling. Appellate counsel was ineffective for failing to make a motion alerting the appellate court to the new law.

 

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THE JUDGE INCORRECTLY PARAPHRASED THE JURY NOTE; CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s condition, determined that the judge did not adequately inform counsel of the contents of a jury note:

The record reflects that the court received the note from the jury and properly marked it as a court exhibit. The jury note stated, in relevant part, “[p]lease go over manslaughter vs murder 2 elements of the charges from your instructions” … . The court did not read the note verbatim and the record does not reflect that the court showed the note to the parties. Rather, the record reflects that the court informed the parties that the jury wanted the court to “go over the instructions for manslaughter and [m]urder in the [s]econd [d]egree” … . We conclude that by improperly paraphrasing the jury note, the court failed to give meaningful notice of the note … . Contrary to the People’s contention, the difference between the content of the note and the court’s words altered the meaning of the jury’s request … . People v Zenon, 2022 NY Slip Op 05446, Fourth Dept 9-30-22

Practice Point: Here the judge paraphrased the jury note in a way which altered its meaning. Conviction reversed.

 

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DEFENSE COUNSEL MISTAKENLY FAILED TO NOTIFY THE PROSECUTION OF AN ALIBI WITNESS; DEFENSE COUNSEL ADMITTED HE HAD NO EXCUSE FOR HIS MISTAKE; BECAUSE THE FAILURE WAS NOT DELIBERATE AND WAS NOT AN ATTEMPT TO GAIN A TACTICAL ADVANTAGE, THE DEFENSE MOTION FOR PERMISSION TO SERVE A LATE NOTICE OF ALIBI SHOULD HAVE BEEN GRANTED (FOURTH DEPT),

The Fourth Department, reversing defendant’s conviction on the two relevant counts, determined defense counsel’s failure to timely notify the prosecution of an alibi witness was not deliberate and the defense motion to serve a late notice of alibi should have been granted:

… [O]n the day prior to jury selection, defendant filed a motion to permit the late service of a notice of alibi with respect to the first two counts of the indictment. In an affirmation in support of the motion, defense counsel explained that, just days after defendant’s arraignment on the indictment, defendant informed him of the existence of a potential alibi witness, and defense counsel’s investigator confirmed the alibi with the witness a week later. Defense counsel averred that, despite his awareness of that witness, he failed to notify the court and the prosecutor of the existence of the witness simply through his own negligence. Defense counsel had no objection to a brief adjournment for the People to investigate the alibi. Defense counsel’s averments and statements to the court established that his failure to comply with the time limits of CPL 250.20 was not willful or motivated by a desire to obtain a tactical advantage but simply a mistake … and, under these circumstances, defendant’s constitutional right to offer the testimony of the alibi witness outweighed any prejudice to the People or their interest in having the trial begin as scheduled … . The court therefore abused its discretion in precluding the testimony of the alibi witness (see Green, 70 AD3d at 45-46). The evidence against defendant was not overwhelming, and thus the harmless error doctrine is inapplicable here … . People v Thomas, 2022 NY Slip Op 05430, Fourth Dept 9-30-22

Practice Point: The failure to notify the prosecution of an alibi witness was an inadvertent mistake. The defense motion for permission to serve a late notice of alibi should have been granted. The denial of the motion denied defendant a fair trial.

 

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TINTED WINDOWS CONSTITUTED A VALID REASON FOR THE VEHICLE STOP; THE VALIDITY OF THE IMPOUNDMENT OF DEFENDANT’S VEHICLE AND THE INVENTORY SEARCH WERE NOT PRESERVED FOR APPEAL; THE DISSENT ARGUED THE TINTED-WINDOWS STOP, THE IMPOUNDMENT AND THE INVENTORY SEARCH WERE INVALID (SECOND DEPT).

The Second Department, over an extensive two-justice dissent, determined (1) the vehicle stop based upon tinted windows was valid, (2) the impoundment of defendant’s vehicle (defendant did not have a license); was proper, and (3) the inventory search of the vehicle was valid: Marijuana and and a firearm were found in the search of the vehicle:

… [W]indow tint violations are a recognized basis for stopping a motor vehicle. The legal test, according to the Court of Appeals, is whether the police officer reasonably believes the windows to be over-tinted in violation of Vehicle and Traffic Law § 375(12-a)(b) … . Officer Sepulveda’s testimony that he could not see into the defendant’s vehicle meets that test. …

The defendant’s contention on appeal that the impoundment and initial inventory search of the Nissan was unlawful was not raised before the Supreme Court and is therefore unpreserved for appellate review (see CPL 470.05[2] …), and we decline to reach that contention in the exercise of our interest of justice jurisdiction…. .

From the dissent:

I respectfully dissent in part and vote to reverse the judgment insofar as reviewed for several reasons. First, the People failed to establish a sufficient basis for the police stop of the defendant’s vehicle. Second, the People failed to establish the legality of the impoundment of the defendant’s vehicle. Third, the People failed to establish the validity of the purported inventory search of the defendant’s vehicle. People v Biggs, 2022 NY Slip Op 05328, Second Dept 9-28-22

Practice Point: Tinted windows is a valid reason for a vehicle stop. The extensive dissent in this case called into question the validity of the tinted-windows stop, the impoundment of the vehicle and the inventory search of the vehicle.

 

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