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THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS) DID NOT ADEQUATELY EXPLAIN THE STATUTORY FACTORS SUPPORTING ITS DENIAL OF PETITIONER’S REQUEST FOR A CERTIFICATE OF GOOD STANDING, WHICH WOULD ALLOW THE FORMER INMATE TO WORK AS A SCHOOL BUS DRIVER; THEREFORE THE DENIAL WAS ARBITRARY; MATTER REMITTED FOR FURTHER PROCEEDINGS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the Department of Corrections and Community Supervision’s (DOCCS’s) denial of petitioner’s application for a certificate of good conduct (CGC) was not supported by the agency’s cursory rulings, rendering the denial arbitrary and requiring remittal for further proceedings. Petitioner, a former inmate with a sexual-offense conviction, sought the certificate of good standing in order to work as a school bus driver:

… [T]he challenged determination is a form letter with blanks to be filled in, and the Assistant Commissioner made no effort to explain his reasoning beyond checking a box next to a sentence stating that petitioner’s application was being denied because “[t]he relief to be granted by the [CGC] is inconsistent with public interest.” There is no question that such a “cursory letter decision,” which mentions only one of the statutory factors set forth in Correction Law § 703-b and offers no discussion of the “grounds for the denial[,] precludes meaningful review of the rationality of the decision” … .

… Correction Law article 23 requires more than a naked reliance on the crime of conviction, and the Assistant Commissioner’s affidavit … reflects that DOCCS “failed to comply with the statute and acted in an arbitrary manner” … . Although the record contains other information regarding the circumstances of petitioner’s conviction and his subsequent history that might render the denial of his application rational, a “court is powerless to sanction the determination by substituting what it deems a more appropriate or proper basis” … . Matter of Streety v Annucci, 2022 NY Slip Op 02170, Third Dept 3-31-22

​Practice Point: If an administrative agency issues a ruling which does adequately explain the statutory factors upon which the ruling is based, making a review of the bases of the ruling impossible, the ruling may be characterized as “arbitrary” and annulled.

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THE HOSPITAL FROM WHICH LAPTOPS WERE STOLEN WAS NOT A “DWELLING” WITHIN THE MEANING OF THE BURGLARY STATUTE (FIRST DEPT).

The First Department, reversing two of defendant’s burglary convictions, determined the hospital from which laptops were stolen was not a “dwelling” as that term is used in the burglary statutes:

Defendant’s convictions under counts three and four of the indictment, regarding the 2017 thefts of laptop computers from the Physicians & Surgeons Building at Columbia University Medical Center, were not supported by legally sufficient evidence of the “dwelling” element of burglary in the second degree (see Penal Law § 140.00[3]). There was no evidence that patients stayed overnight in this building. The People’s reliance on Penal Law § 140.00(2) is unavailing, because no “unit” within the building is a dwelling. Although the building was part of a large campus covering several blocks, there was insufficient evidence that this building provided defendant with ready access via connecting elevators, stairwells, or corridors to other buildings, where hospital patients stayed overnight and which was, in any event, at a considerable distance … . People v Brown, 2022 NY Slip Op 02205, First Dept 3-31-22

​Practice Point: Here a hospital from which laptops had been stolen was not a “dwelling” as that term is used in the burglary statutes.

 

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THE JUDGE SHOULD HAVE INQUIRED FURTHER WHEN A PROSPECTIVE JUROR SAID TRAVEL PLANS PROHIBITED HER FROM SERVING BEYOND THE PROJECTED LAST DAY OF THE TRIAL, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the judge should have inquired further when a prospective juror said travel plans prohibited her from serving beyond the projected last day of the trial:

During jury selection, the court advised the panel that the trial could last until April 17, 2018. The panelist at issue stated that she “absolutely” could not serve on April 18, because she had irrevocable travel plans for that day. When defense counsel said that “we are starting to get closer to the 16th, 17th,” and asked whether she “may not be able to give [her] best attention” if “we started moving in that direction,” the panelist said, “Yes.” Counsel challenged this panelist for cause because of the concern that she would have difficulty focusing on the trial due to her travel constraints. In the alternative, counsel sought to question this panelist further. The court denied the challenge because it believed that the trial “should never even get that close.” Defendant was compelled to exercise his final peremptory challenge against this panelist. The court should have granted defendant’s request for further inquiry to determine her ability to serve … . Given that her travel plans precluded her from serving a single day beyond the court’s estimated outer limit for the trial, the panelist gave the impression that she would have difficulty focusing on the trial, as she stated, and that, if selected, she might have been biased in favor of reaching a verdict quickly … . People v Bowman, 2022 NY Slip Op 02208, First Dept 3-31-22

Practice Point: Here a prospective juror had firm travel plans and therefore could not serve beyond the projected last day of the trial. The judge should have inquired further when defense counsel suggested she may have difficulty focusing on the trial. The juror may have been biased in favor of a quick verdict. Defense counsel used a peremptory challenge; new trial ordered.

 

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THE SIX-YEAR DELAY, DURING WHICH DEFENDANT WAS INCARCERATED, DEPRIVED DEFENDANT OF HIS RIGHT TO A SPEEDY TRIAL; THE MURDER AND ASSAULT CONVICTIONS AFTER TRIAL REVERSED (FIRST DEPT).

The First Department, reversing defendant’s murder and assault convictions after trial, determined defendant have been deprived of his right to a speedy. It was presumed that the delay of six years, during which defendant was incarcerated, prejudiced the defense. The prosecution failed to demonstrate good cause for the delay:

“Where there has been extended delay, it is the People’s burden to establish good cause” … . Following defendant’s January 2011 arraignment, this case was reassigned to successive Assistant District Attorneys. After the case was assigned to the third and final prosecutor in mid-2014, he waited about one year before seeking to obtain a DNA sample from defendant to be compared with DNA recovered from a plastic cup found outside the garage in which the shootings occurred during a party. That motion was denied because there was no nexus between the cup and the shootings, and because defendant’s admitted attendance at the party was undisputed. The People argue that their delay was justified by the reluctance of a retired detective to testify; they cite a note from the detective’s doctor stating that he was medically unfit to be cross-examined and argue that the detective was a necessary witness because he conducted the lineup in which the surviving victim identified defendant as the assailant. However, this detective ultimately did not testify at the suppression hearing or trial, and the suppression court credited the hearing testimony of the surviving victim, who knew defendant, and denied the motion to suppress the identification based on that testimony. Moreover, it is undisputed that the retired detective was not needed to introduce defendant’s statements, which were introduced through another detective at trial. People v McDonald, 2022 NY Slip Op 02099, First Dept 3-29-22

Practice Point: Here the defendant’s murder and assault convictions after trial were reversed because defendant was deprived of his right to a speedy trial. Defendant was incarcerated during the six-year delay, which raised the presumption the defense was prejudiced by the delay. In addition the People were not able to show a good cause for the delay. The People claimed a detective’s poor health precluded him from testifying, but the detective’s testimony was not necessary.

 

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IN THIS SEX-OFFENSE CASE, THE SENTENCING JUDGE VIOLATED THE CRIMINAL PROCEDURE LAW BY REFUSING TO DISCLOSE THE VICTIM IMPACT STATEMENT TO THE DEFENDANT WITHOUT PLACING THE REASONS FOR NONDISCLOSURE ON THE RECORD; THE ISSUE SURVIVED THE WAIVER OF APPEAL (THIRD DEPT).

The Third Department, vacating defendant’s sentence and remitting for resentencing before a different judge, determined the sentencing judge who reviewed the victim impact statement in this sexual-offense case, and who granted the victim’s request to keep the victim impact statement confidential, violated CPL 390.50, which requires the judge to state the reasons, on the record, for not disclosing a victim impact statement to the defendant. The issue survived defendant’s waiver of appeal:

… [W]e find that defendant’s CPL 390.50 (2) (a) argument must survive the waiver of appeal as the Legislature has, without qualification or restriction, expressly mandated that “[t]he action of the court excepting information from disclosure shall be subject to appellate review” (CPL 390.50 [2] [a]), and courts “may not create a limitation that the Legislature did not enact” … . …

… [T]he record before us does not reflect any ruling by County Court with respect to the victim’s request to except her statement from disclosure. We therefore must conclude that the court failed to set forth “the reasons for its action” on the record, in violation of CPL 390.50 (2) (a) … . The record also does not reflect that any consideration was given to redacting the victim’s statement, leaving defendant wholly “unable to verify the accuracy of the information [therein] or meaningfully respond to it,” in further contravention of the statute … . What is clear, however, is that defendant never had the opportunity to review the victim’s statement and that County Court heavily relied upon it in fashioning its sentence. People v Ortiz, 2022 NY Slip Op 02041, Third Dept 3-24-22

Practice Point: If a sentencing judge wishes to withhold a victim impact statement from the defendant, the reasons for nondisclosure must be placed on the record (CPL 390.50). This issue survives a waiver of appeal.

 

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THE INDICTMENT CHARGED DEFENDANT WITH ASSAULT SECOND AND ATTEMPTED ASSAULT SECOND BUT DID NOT ALLEGE THE USE OF A DEADLY WEAPON OR A DANGEROUS INSTRUMENT; THE PEOPLE’S THEORY AT TRIAL WAS DEFENDANT USED A PVC PIPE AS A DEADLY WEAPON OR A DANGEROUS INSTRUMENT; BUT, TO CORRECT THE FLAWED INDICTMENT, THE JUDGE, A DAY BEFORE THE END OF THE TRIAL, AMENDED THE INDICTMENT TO CHARGE ASSAULT THIRD AND ATTEMPTED ASSUALT THIRD; THE AMENDMENT PREJUDICED THE DEFENDANT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, vacating defendant’s conviction with leave to resubmit, determined the indictment should not have been amended at the end of the trial to charge defendant with assault third and attempted assault third, instead of assault second and attempted assault second as originally charged in the indictment. The indictment did not allege the use of a deadly weapon or dangerous instrument. The last minute amendment was an effort to correct that charging flaw. However the People’s theory, before the grand jury and at trial, was defendant used a PVC pipe as a deadly weapon or a dangerous instrument. But, because of the amendment, the jury was not asked to consider the deadly weapon or dangerous instrument element:

An indictment may be amended to correct “matters of form, time, place, names of persons and the like” (CPL 200.70[1]). An amendment must not “change the theory or theories of the prosecution as reflected in the evidence before the grand jury . . . or otherwise tend to prejudice the defendant on the merits” (CPL 200.70[1]). …

… [N]otice could not have been given, because the indictment’s deficiency was not discovered until one day before the trial concluded. This unorthodox correction is not the kind of procedure sanctioned under CPL 200.70 or 300.50. The amendment was therefore not a mere correction of a “misnomer” of the offense in the accusatory clauses of the indictment … . …

… [D]efendant was prejudiced by the amendment. The People’s theory before the grand jury was that Bari’s injuries were caused by the use of a dangerous instrument, i.e., the bike rental sign. The prosecutor in her opening statement made references to the bike rental sign. She did so in her summation even after the court deleted the original second-degree hate crimes and replaced them with third-degree hate crimes. Further, on the People’s case, the prosecutor elicited testimony from Bari to support this theory. Thus, the People tried the case from inception to conclusion, and defendant mounted a defense, on the theory that a deadly weapon or a dangerous instrument was used in the commission of the hate crimes. On the last day of the trial, however, the court amended the indictment and charged the jury with variations of third-degree assault, which do not require proof of the existence of a deadly weapon or a dangerous instrument. Thus, after hearing evidence of a dangerous instrument throughout the trial, the jury received instructions that did not require it to find that the People had proven the existence of a dangerous instrument beyond a reasonable doubt to convict defendant of the third-degree hate crimes or the third-degree assault. This result was an impermissible change in the theory of the prosecution. People v Winston, 2022 NY Slip Op 02080, First Dept 3-24-22

Practice Point: Here the indictment was flawed because it charged assault second but did not allege use of a deadly weapon or a dangerous instrument. The People’s theory at trial was that defendant used a PVC pipe as a deadly weapon or a dangerous instrument. A day before the end of the trial, the judge amended the indictment to charge assault third. The amendment was improper and prejudiced the defendant.

 

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BRADY MATERIAL WAS WITHHELD, CROSS-EXAMINATION ABOUT A COMPLAINANT’S INCONSISTENT STATEMENTS WAS NOT ALLOWED; THE INQUIRY AFTER A POLLED JUROR INDICATED SHE MAY NOT HAVE AGREED WITH THE VERDICT WAS INSUFFICIENT (SECOND DEPT).

The Second Department, vacating the assault second conviction and dismissing the count, and reversing the gang assault and assault first convictions, determined: (1) Brady material was withheld by redacting the name of a 911 caller who indicated defendant was not involved in the assault; (2) cross-examination of a police officer about a discrepancy between a complainant’s testimony and a statement attributed to the complainant in a police report should have been allowed; and (3) the judge should have inquired further after a juror indicated she “was not sure” about some of the convictions when the jury was polled:

While the contents of the 911 call may have provided some clues as to the identity of the caller, the defendant should not be forced to guess as to the identity of this caller. In addition, we are satisfied that there was a reasonable possibility that disclosure of the caller’s identity and contact information would have led to evidence that would have changed the result of the proceedings … . …

… [T]he court erred in precluding defense counsel from questioning the police witness about the contents of the report and the alleged prior inconsistent statement of complainant one …  . …

… [W]hen the jury was polled and asked if the verdict was theirs, juror number nine stated, “Um, I’m not sure, with some, but most of them, yes.” Although the Supreme Court thereafter inquired of juror number nine if the verdict announced to the court was her own, it did so by asking her “is that a yes or a no” in the presence of the remaining jurors, despite evidence before the court suggesting that juror number nine may have succumbed to pressure to vote with the majority even though she did not agree with the verdict as to certain counts. The court’s inquiry was therefore not sufficient … . People v Ramunni, 2022 NY Slip Op 02022, Second Dept 3-23-22

Practice Point: Here Brady material, the identity of a 911 caller, was withheld, cross-examination about inconsistent statements attributed to a complainant was not allowed, and a juror who, when polled, said she may not have agreed with verdict was not sufficiently questioned by the judge. One count of the indictment was dismissed, and a new trial was ordered on the gang assault and assault first counts.

 

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DEFENDANT WAS DEPRIVED OF HIS RIGHT TO CONFRONT A WITNESS AGAINST HIM AND WAS PENALIZED FOR REJECTING THE JUDGE’S PLEA OFFER AND GOING TO TRIAL; THE ISSUES WERE NOT PRESERVED BUT WERE CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, vacating one conviction and reducing the sentence for another, exercising its interest of justice jurisdiction over the unpreserved errors, determined defendant had been deprived of his right to confront a witness against him and the judge imposed a harsher sentence because defendant exercised his right to a trial:

… [T]he defendant was not afforded the opportunity to cross-examine a DMV employee who was directly involved in sending out the suspension notices or who had personal familiarity with the mailing practices of the DMV’s central mail room or with the defendant’s driving record … . Thus, the testimony of the DMV employee was improperly admitted in order to establish an essential element of the crime of aggravated unlicensed operation of a motor vehicle in the third degree in violation of the defendant’s right of confrontation … . …

… [P]rior to trial, the Supreme Court made its own plea offer to the defendant of an aggregate term of 1½ years of imprisonment to be followed by a period of 2 years of postrelease supervision in full satisfaction of the 16-count indictment … .The court … stated to the defendant: “You should understand the way I operate is as follows: Before trial with me you get mercy; after trial you get justice” … . The defendant declined the plea offer and proceeded to trial, after which he was acquitted of the top counts of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. The court then sentenced the defendant on the conviction of criminal possession of a controlled substance in the fourth degree to a term of 5 years of imprisonment to be followed by a period of postrelease supervision of 2 years. People v Ellerbee, 2022 NY Slip Op 02016, Second Dept 3-23-22

Practice Point: Here the DMV employee who had personal knowledge of the mailing of the license suspension notice to defendant and the defendant’s driving record apparently was not called as a witness. Therefore defendant was deprived of his right to confront the witness about an essential element of the offense. In addition, the judge imposed a much harsher sentence than that offered as part of a plea bargain. The judge thereby penalized the defendant because he chose to go the trial. Both of these errors were not preserved for appeal but were considered in the interest of justice.

 

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THE SEXUAL ASSAULT REFORM ACT (SARA), PROHIIBITING CERTAIN SEX OFFENDERS FROM RESIDING WITHIN 1000 FEET OF A SCHOOL, APPLIES TO SEX OFFENDERS WHO ARE UNDER POSTRELEASE SUPERVISION (PRS); THE DISSENT ARGUED SARA, BY ITS TERMS, APPLIES ONLY TO THOSE ON PAROLE OR CONDITIONALLY RELEASED (CT APP).

The Court of Appeals, over an extensive two-judge dissent, determined the residency requirement of the Sexual Assault Reform Act (SARA) is a mandatory condition of postrelease supervision (PRS) for sex offenders subject to SARA. The dissent argued the applicable statutes do not mention postrelease supervision (PRS) and, by their terms, apply only to defendants who are on parole or conditionally released:

In 1998, the legislature enacted the Sentencing Reform Act, amending the Penal Law to largely “abolish parole” for most felony offenses, including serious sexual offenses, and institute determinate terms of imprisonment to be followed by periods of postrelease supervision … . …[T]the legislature added Penal Law § 70.45 (3)—entitled “[c]onditions of post-release supervision”—which provides that the Board of Parole “shall establish and impose conditions of post-release supervision in the same manner and to the same extent as it may establish and impose conditions in accordance with the executive law upon persons who are granted parole or conditional release.” Further, Penal Law § 70.40 was amended to add references to postrelease supervision; namely Penal Law § 70.40 (1) (b) provides that “conditions of release including those governing postrelease supervision, shall be such as may be imposed by the [Parole Board] in accordance with the provisions of the executive law.” … . …

The SARA residency restriction bars offenders convicted of certain sex offenses from residing within 1,000 feet of a school (see Executive Law § 259-c [14] …). Specifically, it provides that, when certain offenders are “released on parole or conditionally released pursuant to subdivision one or two of this section,” the Parole Board “shall require, as a mandatory condition of such release, that such sentenced offender shall refrain from knowingly entering into or upon any school grounds … . …

Penal Law §§ 70.45 (3) and 70.40 (1) (b), when read together with SARA, mandate that the SARA residency restriction be applied equally to offenders released on parole, conditional release, or subject to a period of postrelease supervision. Matter of Alvarez v Annucci, 2022 NY Slip Op 01957 Ct App 3-22-22

Practice Point: The Court of Appeals rejected the argument that the Sexual Assault Reform Act (SARA), which prohibits certain sex offenders from residing within 1000 feet of a school, does not apply to those under postrelease supervision (PRS).

 

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DEFENDANT, AT THE TIME OF THE PLEA, AGREED TO A SENTENCE OF 20 DAYS OF COMMUNITY SERVICE; AT SENTENCING, AFTER DEFENDANT HAD COMPLETED THE COMMUNITY SERVICE, THE PROSECUTOR AND DEFENSE COUNSEL ACKNOWLEDGED THAT THE BARGAINED-FOR SENTENCE WAS A ONE-YEAR CONDITIONAL DISCHARGE; ON APPEAL DEFENDANT ARGUED HE NEVER AGREED TO THE CONDITIONAL DISCHARGE AND HIS GUILTY PLEA WAS THEREFORE NOT VOLUNTARY; THE MAJORITY HELD THE ISSUE WAS NOT PRESERVED FOR APPEAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DeFiore, over an extensive three-judge dissent, determined defendant’s argument that his plea was invalid because he was not informed that a one-year conditional discharge (CD) would be imposed, was not preserved for appeal. Defendant argued only the community-service sentence was agreed to at the time of the plea and the subsequent imposition of the conditional discharge rendered the plea involuntary:

Defendant challenges the voluntariness of his guilty plea, asserting that the court in its plea colloquy failed to advise him that the 20 days of community service to be imposed would be a condition of a sentence of a one-year conditional discharge. At the outset of the sentencing proceeding, the defense counsel and prosecutor affirmatively acknowledged to the court that the bargained-for sentence to be imposed was a conditional discharge. Prior to imposition of that sentence, defendant who had the practical ability to do so, failed to protest or otherwise seek to withdraw his guilty plea. As a result, defendant’s claim that the court’s imposition of an alleged new sentence rendered his guilty plea involuntary is unpreserved for our review. * * *

From the dissent:

Defendant … pleaded guilty to a reduced charge in exchange for a noncarceral sentence of 20 days of community service, along with a mandatory surcharge and temporary suspension of his driver’s license. When defendant appeared after completing his community service and without further criminal incident, the sentencing should have been in accord with the prosecutor and defendant’s agreement. Instead, the court imposed additional year-long conditions that were not agreed to and never mentioned during the plea colloquy or prior to sentencing. As a consequence, defendant’s plea is invalid … . People v Bush, 2022 NY Slip Op 01956, Ct App 3-22-22

Practice Point: Here defense counsel, at the outset of sentencing, acknowledged that the bargained-for sentence was a one-year conditional discharge. On appeal, the defendant argued that, at the time of the plea, he agreed only to a sentence of 20 days of community service, rendering his guilty plea involuntary. The majority held the issue was not preserved for appeal because defendant was alerted to the conditional-discharge sentence at the time of sentencing and did not move to withdraw his plea. The three-judge dissent agreed with defendant’s argument that his plea was involuntary.

 

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