The Fourth Department, reversing the conviction and dismissing the count, noted that refusing to take a DWI breath test is not an offense:
… [W]e note that defendant’s “refusal to submit to a breath test did not establish a cognizable offense” … . People v Alim, 2022 NY Slip Op 02671, Fourth Dept 4-22-22
Practice Point: Refusing to take a DWI breath test is not a crime.
The Fourth Department, vacating defendant’s sentence in the interest of justice, determined the defendant’s guilty plea was induced by the judge’s promise that defendant could appeal from all the court’s orders. In fact, however, by pleading guilty defendant could not appeal the order rejecting his argument that the first two counts of the indictment were duplicitous:
We agree … with defendant that his plea was not knowingly, voluntarily, and intelligently entered. Although defendant failed to preserve that contention for our review … , we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]). “A trial court is constitutionally required to ensure that a defendant, before entering a guilty plea, has a full understanding of what the plea entails and its consequences” … , and where “a guilty plea has been induced by an unfulfilled promise, the plea must be vacated or the promise must be honored” … . Here, the court repeatedly promised defendant, who was proceeding pro se, that he would retain the right to appeal from all of its orders. The court reiterated that promise during the plea colloquy and did not advise defendant that he was forfeiting any challenge by pleading guilty. We conclude, however, that “[b]y pleading guilty, defendant forfeited his . . . contention that the first two counts of the indictment were duplicitous” … . Consequently, “[i]nasmuch as the record establishes that defendant, in accepting the plea, relied on a promise of the court that could not, as a matter of law, be honored, defendant is entitled to vacatur of his guilty plea” … . People v Mothersell, 2022 NY Slip Op 02661, Fourth Dept 4-22-22
Practice Point: Here the defendant’s guilty plea was induced by the judge’s promise all the court’s orders could be appealed. In fact, the guilty plea precluded raising on appeal defendant’s contention two indictment counts were duplicitous. Even though the issue was not preserved for appeal, the Fourth Department vacated the guilty plea.
The Fourth Department determined the sentences for assault first and robbery first should not have been imposed consecutively:
… [T]he court erred in directing that the sentence on the count of assault in the first degree run consecutively to the sentence imposed on the count of robbery in the first degree because the robbery was the predicate felony for the felony assault (see Penal Law § 70.25 [2] …). Inasmuch as “[t]he felony upon which felony assault is predicated is a material element of that crime,” the sentence imposed on the count of assault in the first degree must run concurrently with the sentence imposed on the count of robbery in the first degree … . People v Brown, 2022 NY Slip Op 02655, Fourth Dept 4-22-22
Practice Point: When one felony (here robbery first) is a predicate felony for another (here assault first), the sentence for the two crimes must run concurrently.
The Fourth Department, reducing the defendant’s risk level from three to two, determined the People did not prove defendant engaged in a “continuous course of sexual misconduct” which requires that the acts be at least 24 hours apart:
The court erred … in assessing 20 points under risk factor 4 for having engaged in a continuous course of sexual misconduct. Points may be assessed under risk factor 4 if, as relevant here, the People establish by clear and convincing evidence that defendant engaged in “two or more acts of sexual contact, at least one of which is an act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, which acts are separated in time by at least 24 hours” … . Here, “[a]lthough the People presented evidence that defendant engaged in acts of sexual contact with the victim on more than one occasion, they failed to establish ‘when these acts occurred relative to each other’ ” … , and thus failed “to demonstrate that such instances were separated in time by at least 24 hours” … . People v Ellis, 2022 NY Slip Op 02654, Fourth Dept 4-22-22
Practice Point: A 20-point SORA assessment for a continuous course of sexual misconduct requires proof the acts took place at least 24 hours apart. Here there was no proof of when the acts occurred relative to each other, therefore the 20-point assessment was struck.
The Third Department, reversing defendant’s conviction and ordering a new trial, over a two-justice dissent, determined the justification-defense jury instruction should have been given in this assault case. The defendant punched a police officer after the defendant was sprayed in the face with pepper spray:
… [T]he People introduced into evidence a video recording of the assault, in which defendant can clearly be seen punching a police sergeant after defendant is sprayed in the face with pepper spray. Testimony revealed, and the video corroborated, that the pepper spray was deployed because defendant was refusing to take off his shoes and change into footwear provided by the jail so that an officer could finish searching him before bringing him into the jail. However, the video depicts a very brief time period between the initial directive for defendant to remove his footwear and the deployment of the pepper spray. Based on this fact, combined with other circumstances surrounding the incident, we find that there is a reasonable view of the evidence that the use of the pepper spray constituted excessive force in this scenario. People v Heiserman, 2022 NY Slip Op 02588, Third Dept 4-21-22
Practice Point: Here there was evidence that the police officer’s spraying defendant in the face with pepper spray constituted the use of excessive force. Defendant punched the police officer after the defendant was sprayed and was charged with assault. The failure to instruct the jury on the justification defense was reversible error. Two dissenters disagreed.
The Second Department, ordering a new trial, determined defense counsel’s for cause challenge to a juror who was an assistant district attorney in the office which was prosecuting the defendant should have been granted:
… [D]uring jury selection, the subject prospective juror informed the Supreme Court that she was presently working as an assistant district attorney, within the Queens County District Attorney’s Office, the same agency that was prosecuting the defendant, and that she was familiar with the prosecutor, the defense attorney, and the Justice. As the People correctly concede, the juror’s contemporaneous working relationship with the agency prosecuting the defendant required that juror’s dismissal for cause … . People v Cortes, 2022 NY Slip Op 02561, Second Dept 4-20-22
Practice Point: The for cause challenge to the prospective juror who was an assistant district attorney in the same office which was prosecuting the defendant should have been granted; new trial ordered.
The Third Department, over a dissent, determined that the People’s failure to turn over Brady material in this sexual-offense prosecution, which the defense received four days before trial pursuant to a subpoena, did not require reversal:
“‘[W]hile the People unquestionably have a duty to disclose exculpatory material in their control,’ a defendant’s constitutional right to a fair trial is not violated when, as here, he [or she] is given a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People’s witnesses or as evidence during his [or her] case” … .. Defendant, by way of a subpoena, received the records from the victim’s evaluation four days before trial. Defendant asserts that these records contain two pieces of allegedly exculpatory information. The first is that a physical examination of the victim, performed three months after the incident, was “normal” and did not reveal any corporeal injury. The second is that the victim, during an interview related to the physical examination, disclosed allegations of prior sexual abuse by two different individuals, which defendant asserts were fabricated.
From the dissent:
… [I]n my view, the withheld evidence was clearly material and defendant was prejudiced. As a result of the Brady violation, defendant was denied an opportunity to pursue other strategies with defense counsel. He was denied, among other things, the opportunity to investigate and interview other potential defense witnesses well in advance of trial, or to develop a more detailed argument on the issue of whether he could cross-examine the victim and call certain witnesses without running afoul of the Rape Shield Law (see CPL 60.42). With more time, he also could have called the examining physician or retained his own medical expert to review the records. Learning of the existence of potential witnesses such as the victim’s brother and the mother’s landlord a mere four days before trial provided defendant no opportunity to locate and interview these witnesses and possibly incorporate their testimony into his defense. Moreover, as County Court noted, defendant, under these circumstances, was under no obligation to seek an adjournment of the trial. People v Sherwood, 2022 NY Slip Op 02455, Third Dept 4-14-22
Practice Point: Although the Brady material was not provided until four days before trial pursuant to a defense subpoena, reversal was not required because the defense had a meaningful opportunity to use the material in the cross-examination of the People’s witnesses. The dissenter disagreed.
The Third Department, reversing (modifying) the protective order upon an expedited review (CPL 245.70), determined that defense counsel should have been provided with the People’s application to withhold certain discoverable materials from the defendant until a week before trial:
Inasmuch as the People offered no basis to withhold these materials from defense counsel and, in fact, pursuant to the proposed order submitted by the People, defense counsel would be permitted to access them as soon as County Court signed the order, the better practice would have been to permit defense counsel access to the application and materials prior to the hearing on the protective order so that counsel could participate in it to the fullest extent practicable. …
Defense counsel should, with the appropriate caveat not to disclose them to or discuss their contents with his client pending determination of the application, be permitted to view the application and the materials at issue and thereby meaningfully participate in the hearing before County Court in order to advocate on behalf of his client and assist in reaching an appropriate outcome. Accordingly, the instant application should be granted and the matter remitted for a new hearing following further disclosure to defense counsel. People v Escobales, 2022 NY Slip Op 02354, Third Dept 4-8-22
Practice Point: Here County Court should have disclosed to defense counsel the People’s application to withhold certain discoverable materials from the defendant until a week before trial. Without the application, defense counsel could not fully litigate the issues. (The People had no objection to disclosing the withheld materials to defense counsel as soon as the requested order of protection was signed.)
The Third Department noted that the judge who denied defendant’s second motion to set aside his sentence should not have precluded defendant from making “additional applications” without the permission of the court:
We … agree with defendant that County Court abused its discretion in ordering that prior court approval was required before any further motions were filed. Notably, the authority cited by County Court — 22 NYCRR part 130-1.1 — by its own terms applies to only civil actions or proceedings (see 22 NYCRR 130-1.1 [a]). Moreover, even if such authority does exist in a criminal action … , defendant has not engaged in sufficiently excessive, protracted and/or unwarranted litigation as to justify such action here. … . People v Maloy, 2022 NY Slip Op 02312, Third Dept 4-7-22
Practice Point: Here the court abused its discretion in prohibiting defendant, who had made two motions to set aside his sentence, from making additional motions without permission from the court. It is questionable whether a judge has that authority on the criminal, as opposed to civil, side.
The Second Department, vacating the sentence and dismissing the count, determined burglary second is a lesser included concurrent count of burglary first:
… [T]he defendant’s conviction of burglary in the second degree under Penal Law § 140.25(2), as well as the sentence imposed thereon, must be vacated and that count dismissed as a lesser included concurrent count of burglary in the first degree under Penal Law § 140.30(4) (see CPL 300.40[3][b] …). People v Joseph, 2022 NY Slip Op 02282, Second Dept 4-6-22
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