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AFTER A VALID TRAFFIC STOP BASED ON THE LICENSE PLATES NOT MATCHING THE VEHICLE, DEFENDANT PRESENTED HIS TEMPORARY REGISTRATION AND EXPLAINED THE PLATES HAD BEEN TRANSFERRED FROM A DIFFERENT VEHICLE; AT THAT POINT THE AUTHORIZATION TO DETAIN DEFENDANT CEASED; THE SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT). ​

The Fourth Department, reversing defendant possession of a controlled substance conviction and dismissing the indictment, determined the police, after making a valid traffic stop of defendant’s vehicle, did not have the authority to detain him after he presented his temporary registration and explained that the license plates had been transferred from another vehicle:

… [T]he justification for the officer’s initial detention ceased once defendant showed the officer the temporary registration that had been issued for the vehicle and explained that the license plates on the vehicle had recently been transferred from another vehicle … .. We further conclude that the record does not support the court’s determination that the circumstances following the initial stop provided the officer with probable cause to believe that defendant was violating Vehicle and Traffic Law § 507 (2) … . Indeed, the record does not support the court’s finding that, when defendant produced a learner’s permit upon being asked to produce his driver’s license, the officer asked defendant to exit the vehicle due to the lack of a valid driver’s license. Thus, inasmuch as “the initial justification for seizing and detaining defendant . . . was exhausted” at the time of defendant’s removal from the vehicle, the evidence seized during the ensuing search of defendant’s person, as well as the statements that he made to the police thereafter, should have been suppressed … .People v Betsey-Jones, 2022 NY Slip Op 01924, Fourth Dept 3-18-22

Practice Point: Here the police stopped defendant because the license plates did not match the color and make of defendant’s vehicle in the DMV database. Once the the defendant showed the officer his temporary registration and explained the license plates had been transferred from a different vehicle, the justification for the detention of the defendant ceased. Any statements made and evidence seized after that point should have been suppressed.

 

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THERE WAS NO PROOF DEFENDANT EXERCISED DOMINION AND CONTROL OVER THE AREA WHERE THE DRUGS WERE FOUND; DEFENDANT’S MERE PRESENCE IN THE VICINITY OF THE DRUGS DID NOT PROVE HIS POSSESSION OF THE DRUGS (FOURTH DEPT).

The Fourth Department, reversing defendant’s possession of a controlled substance conviction and dismissing the indictment, determined defendant’s constructive possession of the drugs was not demonstrated. There was no proof defendant exercised dominion and control over the area in which the drugs were found, as opposed to merely being present in the vicinity of the drugs:

Where there is no evidence that the defendant actually possessed the controlled substance, the People are required to establish that the defendant “exercised ‘dominion or control’ over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized” … . The People may establish constructive possession by circumstantial evidence … , but a defendant’s mere presence in the area in which contraband is discovered is insufficient to establish constructive possession … . People v Mighty, 2022 NY Slip Op 01923, Fourth Dept 3-18-18

Practice Point: If a defendant does not physically possess the drugs, to prove constructive possession, the People must demonstrate the defendant exercised dominion and control over the area where the drugs were found, perhaps by proving defendant resided there, for example.

 

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THE JUDGE’S FAILURE TO PRONOUNCE THE DEFINITE TERM COMPONENT OF DEFENDANT’S SENTENCE REQUIRED VACATION OF THE SENTENCE AND REMITTAL FOR RESENTENCING; THE ISSUE SURVIVES A WAIVER OF APPEAL (FOURTH DEPT).

The Fourth Department, vacating defendant’s sentence and remitting for resentencing, determined the definite term component of the sentence was not pronounced by the court:

CPL 380.20 provides that a court “must pronounce sentence in every case where a conviction is entered.” That statutory requirement is “unyielding” … . A violation of CPL 380.20 “may be addressed on direct appeal notwithstanding [any] valid waiver of the right to appeal or the defendant’s failure to preserve the issue for appellate review” … . “When the sentencing court fails to orally pronounce a component of the sentence, the sentence must be vacated and the matter remitted for resentencing in compliance with the statutory scheme” … .

Here, although the certificate of conviction states that defendant was sentenced to a split sentence of a definite term of time served in jail and five years of probation, which is consistent with the sentencing promise made during the plea proceeding, the court failed to orally pronounce during the sentencing proceeding the definite term component of defendant’s sentence as required by CPL 380.20 … . People v Adams, 2022 NY Slip Op 01921, Fourth Dept 3-18-22

Practice Point: Every component of a sentence must be “pronounced” by the judge in open court or the sentence will be vacated.

 

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IN RESPONSE TO A BATSON INQUIRY, THE PROSECUTOR’S REASON FOR STRIKING THE PROSPECTIVE JUROR IN FACT RELATED TO ANOTHER PROSPECTIVE JUROR FOR WHOM DEFENDANT HAD EXERCISED A PEREMPTORY CHALLENGE; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s convictions and ordering a new trial, determined that, in response to a Batson inquiry, the prosecutor’s reason for striking the prospective juror did not, in fact, relate to the correct prospective juror. Rather, the prosecutor’s reason related to another prospective juror for whom the defendant had exercised a peremptory challenge:

… [T]he prosecutor stated that the reason that he exercised a peremptory challenge on the prospective juror at issue was due to “her answer as to why she wanted to sit on the jury.” Specifically, the prosecutor explained that the prospective juror expressed an “odd interest in the defendant’s right to remain silent, right to testify,” and that “[t]he way she answered the question . . . was very strange.” However, … the statements the prosecutor attributed to the prospective juror at issue were, in fact, made by a prospective juror upon whom defendant exercised a peremptory strike. Because “a proffered race-neutral reason cannot withstand a Batson objection where it is based on a statement that the prospective juror did not in fact make” … , “an equal protection violation was established” … .People v Douglas, 2022 NY Slip Op 01919, Fourth Dept 3-18-22

Practice Point: If, pursuant to a Batson inquiry, the prosecutor refers to answers given by the wrong prospective juror, a new trial will be ordered.

 

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THE CRITERIA FOR IMPOSING THE MAXIMUM RESTITUTION SURCHARGE OF 10% WERE NOT MET (FOURTH DEPT).

The Fourth Department, reversing (modifying) County Court, determined the criteria for imposing the maximum restitution surcharge of 10% were not met:

… [T]he judgment … is … modified as a matter of discretion in the interest of justice by reducing the surcharge to 5% of the amount of restitution … . * * *

… [T]he court erred in imposing the 10% surcharge because there was no ” ‘filing of an affidavit of the official or organization designated pursuant to [CPL 420.10 (8)] demonstrating that the actual cost of the collection and administration of restitution . . . in [this] particular case exceeds five percent of the entire amount of the payment or the amount actually collected’ ” … . People v Webber, 2022 NY Slip Op 01904, Fourth Dept 3-18-22

Practice Point: Before the maximum restitution surcharge of 10% can be imposed, an affidavit must be filed demonstrating the actual cost of collection.

 

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THE POLICE MISTAKENLY BELIEVED THE MAN IN A MOTEL ROOM (DEFENDANT) WAS A SUSPECT IN A SHOOTING; AN INFORMANT HAD TOLD THE POLICE THE MAN IN THE ROOM WAS FROM ROCHESTER, HIS NICKNAME WAS “JAY” AND HE “HAD A WARRANT;” WHEN THE MAN LEFT THE ROOM, THE POLICE STOPPED HIS TAXI; THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE STOP (FOURTH DEPT).

The Fourth Department, reversing the denial of defendant’s suppression motion and dismissing the indictment, determined the People did not demonstrate the legality of the defective’s order to stop the taxi in which defendant was a passenger. An informant told the police a man in a motel room was from Rochester, his nickname was “Jay,” and he “had a warrant.” The detective believed the man in the motel room was a suspect in a shooting which occurred a month before. Surveillance was set up and the detective was told a man had left the room and gotten into a taxi. The defective, who did not see the man leave the room, ordered the stop of the taxi: It turned out that defendant was not the shooting suspect. He was charged with possession of a controlled substance:

At the suppression hearing, a police detective testified that he directed the stop of the taxi based on a belief that defendant was in fact a different man whom authorities had identified as a suspect in a shooting that had occurred over a month earlier. …

The detective conceded that he had never seen a still photo of the suspect, that the video of the shooting that he did view lacked detail, and that he was unaware of whether the suspect’s actual height, weight, skin tone, or other specific discernable characteristic were on the arrest warrant for the shooting suspect. Further, the informant never identified the man in the motel room as the shooter, and the vague description given, i.e., that the man was from Rochester, that his nickname was the ubiquitous “Jay,” and that he “had a warrant”, is too generalized to support the reasonable suspicion required for the officers’ stop of the taxi … . … This is also not a case in which the “proximity of the defendant to the site of the crime[ and] the brief period of time between the crime and the discovery of the defendant near the location of the crime” added to the totality of circumstances supporting the detective’s reasonable suspicion … . People v Singleton, 2022 NY Slip Op 01893, Fourth Dept 3-18-22

Practice Point: The police mistakenly thought the man in a motel room (defendant) was a shooting suspect based upon vague and general allegations made by an informant. When he left the motel room, the defendant’s taxi was stopped and he was subsequently charged with possession of a controlled substance. The People did not demonstrate the legality of the stop.

 

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DEFENDANT’S WAIVER OF APPEAL WAS NOT VALID; THE COURT’S TERSE INQUIRY ABOUT THE APPEAL WAIVER WAS NOT CURED BY DEFENDANT’S EXECUTION OF A MORE DETAILED WRITTEN WAIVER AFTER SHE WAS SENTENCED AND MORE THAN A YEAR AFTER THE PLEA (THIRD DEPT).

The Third Department affirmed defendant’s conviction but noted that the waiver of appeal was not valid:

The record reflects that County Court failed to explain the separate and distinct nature of the appeal waiver to defendant, and the court’s terse inquiry, wherein defendant was asked, “Do you understand that as part of this disposition, you’re agreeing to waive your right to appeal” and that “normally . . . you have the right to appeal your plea and your sentence,” was insufficient to ensure that defendant appreciated the nature and consequences of the rights that she was relinquishing … . Further, despite defendant’s execution of a more detailed written waiver, such was executed after she was sentenced and more than a year after the plea was entered … .. Under these circumstances, we find that defendant did not knowingly and intelligently waive her right to appeal … . People v Crispell, 2022 NY Slip Op 01843, Third Dept 3-17-22

Practice Point: The court did not explain the separate and distinct nature of an appeal waiver, as opposed to the waiver of the right to a trial. The inadequacy of the court’s explanation was not cured by the more detailed written waiver which was executed after defendant was sentenced and more than a year after the plea.

 

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THE CRIMINAL PROCEDURE LAW SPELLS OUT THE ONLY GROUNDS FOR APPEAL IN A CRIMINAL PROCEEDING; NO APPEAL LIES FROM THE DENIAL OF A MOTION TO CORRECT, AMEND OR SETTLE THE SENTENCING TRANSCRIPT; AND NO APPEAL LIES FROM ADDING A MANDATORY SURCHARGE, WHICH IS NOT PART OF A SENTENCE (THIRD DEPT).

The Third Department determined no appeal lies from an order denying defendant’s motion to correct, amend or settle the sentencing transcript or from an order adding the mandatory surcharge:

As a general rule, “no appeal lies from a determination made in a criminal proceeding unless one is provided by the CPL, [which] exclusively provides for rights to appeal in criminal matters” … .A defendant’s right to appeal to this Court in a criminal case is “strictly limited to those authorized by statute” … . The … order denying defendant’s motion to correct, amend or settle the sentencing transcript and the uniform sentence and commitment form and adding the mandatory surcharge does not fit within the statutory authorization for appeals by a defendant as of right to this Court (see CPL 450.10 …). Defendant’s reliance on case law involving the correction of trial records on direct appeals from judgments of conviction is misplaced, given that this appeal is not from the judgment of conviction, which was previously affirmed on appeal (303 AD2d at 830).

With regard to the mandatory surcharge, although it should be “levied at sentencing” (Penal Law § 60.35 [1] [a]), it is not part of the sentence that must be pronounced at the sentencing proceeding … . As such, that part of County Court’s order amending the uniform sentence and commitment form by adding the mandatory surcharge did not constitute the imposition of a sentence or a modification of the sentence so as to authorize defendant’s appeal therefrom (see CPL 450.10). People v Johnson, 2022 NY Slip Op 01844, Third Dept 3-17-22

Practice Point: The Criminal Procedure Law lays out all the allowed grounds for appeal in a criminal case. The denial of a motion to correct, amend or settle a sentencing transcript is not appealable. The adding of a mandatory surcharge is not part of a sentence and therefore is not appealable.

 

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ALTHOUGH DEFENDANT’S ATTORNEY WAS SUSPENDED BY THE SECOND CIRCUIT BEFORE DEFENDANT’S TRIAL AND SUSPENDED IN NEW YORK JUST AFTER DEFENDANT’S TRIAL, DEFENDANT’S DEPRIVATION-OF-HIS-RIGHT-TO-COUNSEL AND INEFFECTIVE-ASSISTANCE ARGUMENTS WERE REJECTED; THE ATTORNEY WAS NOT OBLIGATED TO INFORM DEFENDANT OF HIS SUSPENSION OR THE PENDING SUSPENSION PROCEEDINGS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutmam, affirmed defendant’s conviction. The court noted: (1) defendant’s attorney had been suspended by the Second Circuit before defendant’s trial; (2) defendant’s attorney was still licensed in New York at the time of the defendant’s trial and conviction; (3) defendant’s attorney was suspended in New York two weeks after defendant’s conviction; (4) the New York suspension was made “retroactive” to the date of the Second Circuit suspension (before defendant’s trial); (5) the attorney was not obligated to inform defendant of the suspension by the Second Circuit; and (6) the failure to inform defendant was considered pursuant to defendant’s ineffective-assistance argument on appeal. Defendant’s motion to vacate his conviction and his appeal were deemed properly rejected by the lower courts:

… [T]he imposition of reciprocal discipline is not a foregone conclusion, nor is the nature or length of any reciprocal discipline imposed certain. Defendant’s proposed rule would deprive attorneys of the due process to which they are entitled in pending reciprocal disciplinary proceedings. * * *

No statute, court order, or New York Rule of Professional Conduct affirmatively required [defendant’s attorney] to disclose the Second Circuit’s suspension or the pending reciprocal disciplinary proceedings in New York to defendant.  * * *

We decline to create a bright-line rule invariably requiring attorneys to affirmatively disclose the imposition of foreign discipline or pending reciprocal discipline proceedings to their clients in every case, where no court order or ethical rule requires such disclosure. …

Instead, we conclude that an attorney’s failure to disclose the imposition of foreign discipline and pending reciprocal disciplinary proceedings can adequately be assessed in the context of an ineffective assistance of counsel claim … . People v Burgos, 2022 NY Slip Op 01868, Ct App 3-17-22

Practice Point: There is no statute or rule which requires an attorney to disclose to his or her client a suspension from practice in a foreign jurisdiction or ongoing suspension proceedings in New York State.

 

THE DEFENDANT WAS NOT PRODUCED FOR SENTENCING; HIS RIGHT TO BE PRESENT AT SENTENCING WAS THEREFORE VIOLATED, REQUIRING REMITTAL FOR RESENTENCING (SECOND DEPT).

The Second Department, remitting the matter for resentencing, noted that defendant was deprived of his right to be personally present at his sentencing:

A defendant has a fundamental right to be “personally present at the time sentence is pronounced” … . Here, the defendant was not produced at sentencing on the convictions of assault in the first degree and criminal possession of a weapon in the fourth degree, and the record is devoid of any indication that he expressly waived his right to be present (see CPL 380.40[2] …). … Supreme Court’s failure to have the defendant produced at the sentencing proceeding … violated the defendant’s fundamental right to be present at the time of sentence…. People v Umar, 2022 NY Slip Op 01818, Second Dept 3-16-22

Practice Point: A defendant has a fundamental right to be personally present at sentencing. Violation of that right requires remittal and resentencing.

 

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