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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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WHETHER DEFENDANT’S CONNECTICUT CONVICTION CAN SERVE AS A PREDICATE FOR SECOND FELONY OFFENDER STATUS CANNOT BE DETERMINED WITHOUT THE CONNECTICUT ACCUSATORY INSTRUMENT; THE UNPRESERVED ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE; MATTER REMITTED FOR A HEARING (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, ruled a hearing was required to determine whether defendant’s Connecticut conviction could serve as a predicate offense for second felony offender status. The issue was not preserved and was considered in the interest of justice:

Although the defendant did not preserve for appellate review the issue of whether he was properly sentenced as a second felony offender, we reach that issue in the exercise of our interest of justice jurisdiction. The defendant’s prior conviction in Connecticut was for larceny in the first degree under Connecticut General Statutes former § 53a-122(a). This statute defined grand larceny differently under several subdivisions, not all of which are felonies under New York law. To determine which subdivision applied to this defendant, the Supreme Court could have looked at the Connecticut accusatory instrument to determine the subdivision of the Connecticut statute under which the defendant was convicted … . However, the Connecticut accusatory instrument is not in the record.

Accordingly, in the interest of justice, we vacate the defendant’s adjudication as a second felony offender and the sentence imposed, and remit the matter to the Supreme Court, Queens County, for a second felony offender hearing and for resentencing thereafter. People v Robinson, 2022 NY Slip Op 03010, Second Dept 5-4-22

Practice Point: Here portions of the Connecticut larceny statute were equivalent to a New York felony and other portions were not. Therefore, whether the Connecticut conviction could serve as a predicate for second felony offender status cannot be determined without examining the Connecticut accusatory instrument. The issue was not preserved for appeal but was considered in the interest of justice. Matter remitted for a hearing.​

 

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DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BASED UPON A PRIOR FEDERAL DRUG CONSPIRACY CONVICTION; THE ISSUE FALLS WITHIN A NARROW EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT).

The Fourth Department determined defendant should not have been sentenced as a second felony offender based upon a prior federal drug conspiracy conviction:

… [T]his case “falls within the narrow exception to [the] preservation rule permitting appellate review when a sentence’s illegality is readily discernible from the . . . record” … . Here, the record establishes that the predicate felony was based on defendant’s previous conviction in federal court of conspiracy to possess with intent to distribute 500 grams or more of cocaine (21 USC § 846; see § 841 [a] [1]; [b]). However, “under New York’s ‘strict equivalency’ standard for convictions rendered in other jurisdictions, a federal conviction for conspiracy to commit a drug crime may not serve as a predicate felony for sentencing purposes” … . People v Lopez, 2022 NY Slip Op 02925, Fourth Dept 4-29-22

Practice Point: A defendant cannot be sentenced as a second felony offender based upon a prior federal drug conspiracy conviction. The issue fell within an exception to the preservation requirement.

 

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ALTHOUGH BAIL-SETTING IS NOT APPEALABLE, WHETHER THE BAIL-SETTING COURT COMPLIED WITH THE CONSTITUTIONAL OR STATUTORY STANDARDS INHIBITING EXCESSIVE BAIL IS A PROPER SUBJECT FOR A HABEAS CORPUS PETITION; HERE THE BAIL-SETTNG COURT DID NOT COMPLY WITH CPL 510.30; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter, determined that, although bail-setting is not appealable, the habeas corpus petition was the proper vehicle for a review of whether the constitutional or statutory standards inhibiting excessive bail were met. Here it was alleged the bail-setting court did not comply with CPL 510.30 by explaining its finding that remand was the least restrictive option:

… [A]fter considering all of the relevant factors under CPL 510.30 (1), the bail-setting court determined that remand was the least restrictive condition. We conclude that the bail-setting court failed to comply with the statutory mandate of CPL 510.10 (1) because it failed to “explain its choice of release, release with conditions, bail or remand on the record or in writing.” We therefore reverse the judgment, reinstate the petition, and grant the petition in part, and we remit the matter to the bail-setting court for further proceedings to satisfy the requirements of CPL 510.10 (1) … . People ex rel. Steinagle v Howard, 2022 NY Slip Op 02901, Fourth Dept 4-29-22

Practice Point: Although bail-setting is not appealable, a habeas corpus petition can be used to argue the bail-setting court did not comply with the constitutional or statutory standards inhibiting excessive bail. Here the court’s failure to explain its choice to remand the defendant violated CPL 510.30.

 

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A PROSECUTION WITNESS’S WRITTEN STATEMENT DID NOT MEET THE CRITERIA FOR PAST RECOLLECTION RECORDED AND SHOULD NOT HAVE BEEN ADMITTED; THE JUDGE’S USE OF THE PHRASE “POTENTIALLY AIDS” INSTEAD OF “INTENTIONALLY AIDS” IN THE ACCOMPLICE LIABILITY JURY INSTRUCTION PREJUDICED THE DEFENDANT; ALTHOUGH THE JURY INSTRUCTION ERROR WAS NOT PRESERVED, THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined: (1) a written statement by a prosecution witness should not have been admitted as “past recollection recorded;” and (2) the jury instruction on accomplice liability prejudiced defendant. The jury-instruction error was not preserved but was considered in the interest of justice:

“The foundational requirements for the admissibility of a past recollection recorded are: (1) the witness must have observed the matter recorded; (2) the recollection must have been fairly fresh at the time when it was recorded; (3) the witness must currently be able to testify that the record is a correct representation of his or her knowledge and recollection at the time it was made; and (4) the witness must lack sufficient present recollection of the information recorded”  … . ,,,

… [T]he prosecution witness in question did not testify that his written statement accurately represented his knowledge and recollection when made. To the contrary, the witness testified that the statement was not accurate when given because he was under the influence of narcotics at that time … . Moreover, because the statement was made more than six months after the alleged events recorded therein, the recollection was not “fairly fresh” when recorded … . …

Penal Law § 20.00 provides that a “person is criminally liable for [the conduct of another] when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct” ,,, . … [W]e conclude that the court’s use of the phrase “potentially aids” rather than “intentionally aids” significantly prejudiced defendant, who was alleged to have aided and abetted the principal by driving him to and from the crime scene…. . People v Gardner, 2022 NY Slip Op 02911, Fourth Dept 4-29-22

Practice Point: Here the written statement did not meet the criteria for admissibility as past recollection recorded. The witness testified the statement was not accurate when given because he was high and the statement was not “fresh” because it was made six months after the events described in it.

 

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