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DEFENDANT DID NOT DEMONSTRATE CONVICTION OF THE B MISDEMEANORS WITH WHICH HE WAS CHARGED WOULD RESULT IN DEPORTATION; THEREFORE DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL (CT APP).

The Court of Appeals, over an extensive two-judge dissent, determined that the defendant did not demonstrate the misdemeanors with which he was charged triggered a right to a jury trial because conviction would result in deportation:

Defendant was originally charged with public lewdness, two counts of forcible touching, and two counts of sexual abuse in the third degree after police officers observed him masturbating on a subway platform and pressing himself against two women on a subway car. The People thereafter filed a prosecutor’s information reducing the two class A misdemeanor charges of forcible touching to attempted forcible touching, so that the top charges against defendant were Class B misdemeanors obviating his right to a jury trial under state statute … . After a bench trial, defendant was convicted of public lewdness and acquitted of all other charges. …

While the Appellate Term first improperly conducted the deportability analysis based only on the crime of conviction, that court went on to correctly analyze defendant’s deportability based on all the charges he faced (see Suazo, 32 NY3d at 508). It remained, however, “the defendant’s burden to overcome the presumption that the crime charged is petty and establish a Sixth Amendment right to a jury trial” (id. at 507). … [D]efendant’s conclusory allegation that he was deportable if convicted “on any of the charged B misdemeanors,” supported by a bare citation to 8 USC § 1227 (a) (2) (A) (ii), under which an alien is deportable if “convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct,” was insufficient to establish his right to a jury trial. People v Garcia, 2022 NY Slip Op 03359, CtApp 5-24-22

Practice Point: Generally B misdemeanors do not warrant a jury, as opposed to a bench, trial. However, if conviction will result in deportation, the defendant has a right to a jury trial. Here the Court of Appeals held the defendant did not demonstrate conviction of the B misdemeanors with which he was charged triggered deportation.

 

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THE NEW YORK CITY ADMINISTRATIVE CODE PROVISION WHICH PROHIBITS “COMPRESSION OF THE DIAPHRAGM” (BY KNEELING, SITTING OR STANDING ON A PERSON) WHEN EFFECTING AN ARREST IS NOT VOID FOR VAGUENESS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the NYC Administrative Code provision prohibiting and criminalizing the use of certain methods of restraint in effecting an arrest was not void for vagueness.

Plaintiffs challenge Administrative Code § 10-181 as unconstitutionally vague and preempted by New York State law. This provision, which became effective July 15, 2020, makes it a criminal misdemeanor to use certain methods of restraint “in the course of effecting or attempting to effect an arrest” (Administrative Code § 10-181[a]). Specifically, the statute prohibits “restrain[ing] an individual in a manner that restricts the flow of air or blood by compressing the windpipe or the carotid arteries on each side of the neck [the chokehold ban], or sitting, kneeling, or standing on the chest or back in a manner that compresses the diaphragm [the diaphragm compression ban]” ,,, , …

The only language plaintiffs take issue with is “in a manner that compresses the diaphragm.” But the meaning of this language, even if “imprecise” or “open-ended,” is sufficiently definite “when measured by common understanding and practices” … . Police officers — the targets of the law — can be (and are) trained on the location and function of the diaphragm. And even plaintiffs have no difficulty understanding the meaning of the word “compress[]” when used in the context of the accompanying chokehold ban, which they do not challenge. That it may not be the most accurate word, from a medical standpoint, to describe what happens to the diaphragm when someone sits, kneels, or stands on it does not mean that it is incapable of being understood. Police Benevolent Assn. of the City of N.Y., Inc. v City of New York, 2022 NY Slip Op 03329 First Dept 5-19-22

Practice Point: The NYC Administrative Code provision which prohibits and criminalizes “compressing the diaphragm” by sitting, kneeling or standing on a person when effecting an arrest is not void for vagueness.

 

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ALTHOUGH THE RELEVANT DECISION [PEOPLE VS RUDOLPH] CAME DOWN AFTER DEFENDANT WAS SENTENCED, THE DECISION CAME DOWN BEFORE DEFENDANT’S APPELLATE PROCESS WAS COMPLETE; THEREFORE DEFENDANT WAS ENTITLED TO CONSIDERATION WHETHER HE SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS; SENTENCE VACATED AND MATTER REMITTED FOR RESENTENCING (SECOND DEPT).

The Third Department, noting that the relevant law was announced after defendant’s sentencing but while the appeal was pending, determined County Court’s failure to consider whether defendant should be afforded youthful offender status required vacation of the sentence and remittal for resentencing:

There is no dispute that Rudolph [21 NY2d at 499], which was decided after defendant was sentenced but before the appellate process was complete, required County Court to make a determination as to whether defendant, as an eligible youth, should be adjudicated a youthful offender, notwithstanding that no request was made for such treatment (see CPL 720.20 [1] …). Whether to grant youthful offender status lies within the discretion of the sentencing court and cannot be dispensed with through the plea-bargaining process … . Although this Court is “vested with the broad, plenary power to modify a sentence in the interest of justice, . . . and, if warranted, exercise our power to adjudicate [a] defendant a youthful offender” … , we decline defendant’s invitation to do so here, in the complete absence of any consideration by the sentencing court, either summarily or otherwise, as to whether defendant should be adjudicated a youthful offender. As such, we deem it appropriate, under such circumstances, to remit the matter to permit County Court the opportunity to make the initial discretionary determination as to whether youthful offender status for defendant is warranted, after the parties fully set forth their positions for and against such treatment … . Without expressing any opinion as to whether youthful offender adjudication should be afforded defendant, in the event that County Court grants such status upon remittal, which would result in the court imposing a lower sentence than the parties negotiated[*2], the People must be given an opportunity to withdraw consent to the plea bargain … People v Simon, 2022 NY Slip Op 03277, Third Dept 5-19-22

Practice Point: Even if the requirement that youthful offender status be considered for all potentially eligible defendants was not in force when a defendant was sentenced, if the decision imposing the requirement (People vs Rudolph) came down before defendant’s appellate process was complete, defendant is entitled to resentencing applying the new law.

 

THE COURT OF APPEALS, WITHOUT EXPLANATION, REVERSED THE FOURTH DEPARTMENT WHICH HAD REVERSED DEFENDANT’S CONVICTION ON THE GROUND THE DEFENDANT WAS NOT PRESENT DURING A SIDEBAR CONFERENCE CONCERNING THE BIAS OF A PROSPECTIVE JUROR; THE MATTER WAS SENT BACK TO THE FOURTH DEPARTMENT FOR CONSIDERATION OF OTHER ISSUES AND FACTS RAISED IN THE APPEAL BUT NOT CONSIDERED BY THE FOURTH DEPARTMENT (CT APP).

The Court of Appeals, without explanation, reversed the Fourth Department which had reversed defendant’s conviction on the ground defendant was not present during a side bar conference concerning the bias of a prospective juror: People v McKenzie-Smith, 2022 NY Slip Op 03308, CtApp 5-19-22

From the Fourth Department Decision (Reversed Without Explanation by the Court of Appeals):

A … prospective juror was peremptorily excused by defendant’s counsel, however, and, during a sidebar conference at which defendant was not present, that juror was questioned “to search out [her] bias, hostility or predisposition to believe or discredit the testimony of potential witnesses” (Antommarchi, 80 NY2d at 250). Consequently, we conclude that, “absent a knowing and voluntary waiver by defendant of his right to be present at that sidebar conference, his conviction cannot stand” … . The only evidence in the record concerning a waiver consists of a conversation between the court, defendant’s counsel and codefendant’s counsel that occurred after the prospective juror was excused, in which codefendant’s counsel indicated that he had just discussed with codefendant the right to approach the bench during such conferences, and defendant’s counsel merely assented. Inasmuch as the discussion was vague and prospective, and there is no indication that defendant or defendant’s counsel were waiving defendant’s Antommarchi rights retrospectively, that conversation is insufficient to establish that defendant waived those rights concerning the questioning of the prospective juror at issue here. We therefore reverse the judgment of conviction and grant a new trial. People v Mckenzie-Smith, 2020 NY Slip Op 05653, Fourth Dept 10-9-20

Practice Point: The Fourth Department had reversed defendant’s conviction on the ground the defendant was not present at a sidebar conference when the bias of a prospective juror was discussed. Here the Court of Appeals reversed without explanation and sent the case back to the Fourth Department for consideration of other issues raised in the appeal.

 

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HERE SCREENSHOTS OF TEXT MESSAGES WHICH HAD BEEN DELETED FROM THE VICTIM’S PHONE WERE SUFFICIENTLY AUTHENTICATED TO BE ADMISSIBLE, EVEN IF THE BEST EVIDENCE RULE APPLIED; THE MESSAGES OF A SEXUAL NATURE ALLEGEDLY WERE SENT BY THE DEFENDANT, A VOLLEY BALL COACH, TO THE VICTIM, A 15-YEAR-OLD PLAYER ON THE TEAM (CT APP). ​

The Court of Appeals, reversing the Appellate Division, determined the trial court did not abuse its discretion by admitting in evidence screen shots of text messages of a sexual nature allegedly sent by the defendant, a high-school volley ball coach, to the 15-year-old victim, a player on the team. The victim had deleted the messages, but her boyfriend had taken screenshots of some of the messages and those screenshots were allowed in evidence. On appeal the Second Department reversed the conviction on the ground that the screenshots had not been properly authenticated:

“[T]echnologically generated documentation [is] ordinarily admissible under standard evidentiary rubrics” and “this type of ruling may be disturbed by this Court only when no legal foundation has been proffered or when an abuse of discretion as a matter of law is demonstrated” … . This Court recently held that for digital photographs, like traditional photographs, “the proper foundation [may] be established through testimony that the photograph accurately represents the subject matter depicted” … . We reiterated that “[r]arely is it required that the identity and accuracy of a photograph be proved by the photographer” … . which would be the boyfriend here. Rather, “any person having the requisite knowledge of the facts may verify” the photograph “or an expert may testify that the photograph has not been altered” … .

Here, the testimony of the victim—a participant in and witness to the conversations with defendant—sufficed to authenticate the screenshots. She testified that all of the screenshots offered by the People fairly and accurately represented text messages sent to and from defendant’s phone. The boyfriend also identified the screenshots as the same ones he took from the victim’s phone on November 7. Telephone records of the call detail information for defendant’s subscriber number corroborated that defendant sent the victim numerous text messages during the relevant time period. Moreover, even if we were to credit defendant’s argument that the best evidence rule applies in this context, the court did not abuse its discretion in admitting the screenshots. People v Rodriguez, 2022 NY Slip Op 03307, CtApp 5-19-22

Practice Point: Text messages of a sexual nature were allegedly sent by the defendant, a volley ball coach, to a 15-year-old player on the team. The original messages were deleted, but the victim’s boyfriend had taken screenshots of some of the messages. The screenshots were deemed authenticated and admitted by the trial court. The Second Department reversed, applying the best evidence rule. The Court of Appeals reversed the Second Department, finding that, even if the best evidence rule applied, the trial court did not abuse its discretion by finding the screenshots had been sufficiently authenticated.

 

BECAUSE DEFENDANT OBJECTED TO THE AMOUNT OF RESTITUTION A HEARING TO DETERMINE THE AMOUNT SHOULD HAVE BEEN HELD (SECOND DEPT).

The Second Department, reversing County Court, determined, because the defendant objected to the restitution-amount, a hearing to determine the amount was required:

“‘Before a defendant may be directed to pay restitution a hearing must be held if either: (1) the defendant objects to the amount of restitution and the record is insufficient to establish the proper amount; or (2) the defendant requests a hearing'” … .

Here, the defendant objected to the amount of restitution payable to the complainant, and the record was insufficient to establish the value of damages to the complainant’s property in the amount of $7,630 … . People v Jensen, 2022 NY Slip Op 03250, Second Dept 5-18-22

Practice Point: Where a defendant objects to the amount of restitution and the record is insufficient to establish the proper amount, a hearing must be held.

 

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DESPITE THE STRENGTH OF THE EVIDENCE AGAINST HIM, DEFENDANT DEMONSTRATED A DECISION TO GO TO TRIAL WOULD HAVE BEEN RATIONALE BECAUSE OF HIS FAMILY OBLIGATIONS; DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS; DEFENDANT ALLEGED HIS ATTORNEY MISADVISED HIM ON THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant should have been afforded a hearing on his motion to vacate his conviction on ineffective assistance grounds. Defendant alleged he was misadvised of the deportation consequence of his guilty plea.

… [N]either the fact that the defendant had previously been convicted of an offense that may subject him to removal, nor the seemingly strong evidence against him with respect to the instant offense, nor the favorable plea bargain he received, necessarily requires a finding that the defendant was not prejudiced by his counsel’s alleged misadvice … . The defendant’s averments, including that he has resided in the United States since he was 10 years old, that he is married to his spouse with whom he has two minor children, that his spouse is unable to work due to a medical condition, that he is gainfully employed, and that he is the sole source of financial support to his family, sufficiently alleged that a decision to reject the plea offer would have been rational … . People v Samaroo, 2022 NY Slip Op 03128, Second Dept 5-11-22

Practice Point: Even if the evidence of defendant’s commission of the crime is strong, a defendant may demonstrate a decision to go to trial, rather than accept a plea offer, would have been rationale based upon family obligations. Here defendant, who is a legal resident and has lived in the US since he was ten, has two minor children, is employed, and his wife can’t work because of medical problems. Defendant brought a motion to vacate his conviction (by guilty plea) on the ground his attorney did not inform him of the deportation consequences of the plea. Defendant was entitled to a hearing on his motion.

 

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PETITIONERS. RELATIVES OF PERSONS IN THE NYS DNA DATABASE, HAD STANDING TO CHALLENGE THE RESPONDENTS’ REGULATIONS ALLOWING THE RELEASE OF “FAMILIAL DNA MATCH” INFORMATION LINKING DNA FROM A CRIME SCENE TO A FAMILY, NOT AN INDIVIDUAL; THE REGULATIONS WERE BASED ON SOCIAL POLICY AND THEREFORE EXCEEDED THE REGULATORY POWERS OF THE RESPONDENT AGENCIES; TWO-JUSTICE DISSENT ARGUED THE PETITIONERS DID NOT HAVE STANDING TO CHALLENGE THE REGULATIONS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, reversing Supreme Court, over a full-fledged two-justice dissenting opinion, determined the respondent agencies exceeded their regulatory powers when they authorized the release of so-called “familial DNA” information to be used as a possible lead for identifying the perpetrator of a crime. In the absence of a DNA “match” or a “partial match” a “familial match” may indicate the perpetrator has a familial relationship with someone in the DNA database. A crucial threshold question was whether the petitioners, relatives of persons whose genetic profiles are in the New York State DNA database, had standing to contest the familial DNA regulations. The dissenters argued the petitioners did not have standing. The majority concluded the basis for the familial DNA regulations was primarily social policy, and therefore the regulations were legislative, rather than administrative, in nature:

Each petitioner’s brother has genetic information stored in the DNA databank. Neither petitioner has been asked or mandated to provide DNA for comparison. Because they are law abiding citizens, neither petitioner knows if they have been targeted for investigation as a result of a familial DNA search, but they harbor great concern and anxiety that they might be investigated for no other reason than that they share family genetics with a convicted criminal … . * * *

We are not required to determine whether respondents made a good or beneficial policy decision. The fact that the decisions respondents made are by their very nature policy driven, greatly favors a conclusion that they were made in excess of respondents’ authority. Matter of Stevens v New York State Div. of Criminal Justice Servs., 2022 NY Slip Op 03062, First Dept 5-5-22

Practice Point: Relatives of persons in the NYS DNA database had standing to challenge the regulations issued by the respondent agencies allowing the release of “familial DNA match” information linking DNA from a crime scene to a family, not an individual.

Practice Point: The “familial DNA match” regulations were deemed to be rooted in social policy, which is the realm of the legislature, and therefore the promulgation of the regulations exceeded the agencies’ powers.

 

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AT THE TIME DEFENDANT COMMITTED THE OFFENSE IN 2007, IT WAS NOT A REGISTRABLE OFFENSE UNDER THE SEX OFFENDER REGISTRATION ACT; THEREFORE DEFENDANT’S MOTION TO SEAL THE RECORD SHOULD NOT HAVE BEEN SUMMARILY DENIED; MATTER REMITTED FOR A HEARING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the crime for which defendant was convicted, at the time of its commission in 2007, was not a registrable offense under the Sex Offender Registration Act (SORA). Therefore defendant’s motion to seal the record should not have been summarily denied. The matter was remitted for a hearing:

… [A]t the time of the defendant’s conviction for attempted promoting prostitution in the third degree (Penal Law §§ 110.00, 230.25), the definition of “sex offense” in Correction Law § 168-a(2) did not include convictions of an attempt to commit Penal Law § 230.25 … . Further, the defendant has never been required to register under SORA for this conviction. Accordingly, under the plain language of the statute, the defendant has not been not [sic] convicted of “an offense for which registration as a sex offender is required pursuant to article six-C of the correction law” (CPL 160.59[1][a] …). Thus, the Supreme Court should not have determined that the defendant’s conviction falls into the category of excluded offenses … . Likewise, although CPL 160.59(3)(a) provides that the reviewing court must summarily deny the defendant’s application when, inter alia, “the defendant is required to register as a sex offender pursuant to article six-C of the correction law,” here, the defendant is not required to do so.

As the defendant’s motion was not subject to mandatory denial under CPL 160.59(3) and the district attorney opposed the defendant’s motion, a hearing on the defendant’s motion was required … . People v Miranda, 2022 NY Slip Op 03009, Second Dept 5-4-22

Practice Point: If an offense is now a registrable offense pursuant to the Sex Offender Registration Act, but was not a registrable offense when committed (here in 2007), a defendant’s motion to seal the record cannot be summarily denied. The motion may still be denied after a hearing, however.

 

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SEX OFFENDER CERTIFICATION IS NOT PART OF A SENTENCE AND THEREFORE IS NOT COVERED BY THE UNLAWFUL-SENTENCE EXCEPTION TO THE PRESERVATION REQUIREMENT; THEREFORE THE UNPRESERVED ISSUE COULD NOT BE CONSIDERED BY THE COURT OF APPEALS; HOWEVER, UPON REMITTAL, THE ISSUE CAN BE (AND WAS) CONSIDERED AT THE APPELLATE DIVISION LEVEL IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, upon remittal from the Court of Appeals, adhered to its prior decision finding defendant’s certification as a sex offender unlawful. The Court of Appeals ruled that sex-offender certification is not part of a sentence and therefore is not covered by an exception to the preservation requirement. But, because the Appellate Division, unlike the Court of Appeals, has “interest-of-justice” jurisdiction, the prior decision was upheld in the interest of justice by the Second Department, despite the lack of preservation:

In an opinion dated November 23, 2021, the Court of Appeals concluded that sex offender certification is not part of a defendant’s sentence, and thus, a contention regarding sex offender certification does not fall within the exception to the preservation rule for challenges to unlawful sentences … . However, the Court of Appeals noted that although it does not have interest-of-justice jurisdiction to review unpreserved issues, the “Appellate Division may have authority to take corrective action in the interest of justice based upon defendant’s unpreserved challenge to the legality of his certification as a sex offender” … . Accordingly, the Court of Appeals remitted the matter to this Court for further proceedings … .

We now reach the defendant’s unpreserved contention in the exercise of our interest of justice jurisdiction (see CPL 470.15[3][c]; [6][a]). For the reasons stated in our prior opinion and order, the defendant’s certification as a sex offender was unlawful … .People v Buyund, 2022 NY Slip Op 03004, Second Dept 5-4-22

Practice Point: The Court of Appeals does not have interest-of-justice jurisdiction and therefore cannot consider appellate issues that are not preserved. The Appellate Division, however, can invoke interest-of-justice jurisdiction to consider unpreserved appellate issues.

 

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