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SUPREME COURT DID NOT MAKE THE REQUIRED FINDINGS RE: WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS; MATTER REMITTED (SECOND DEPT).

​The Second Department determined Supreme Court did not make the required findings re: whether defendant should be afforded youthful offender status and remitted the matter:

CPL 720.20(1) requires “that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain” … . With regard to the defendant’s conviction of criminal possession of a weapon in the second degree …, which, contrary to the defendant’s contention, is an armed felony (see CPL 1.20[41]; Penal Law §§ 70.02[1][b]; 265.03[3] …), the People concede that the Supreme Court improperly failed to determine on the record whether the defendant was an “eligible youth” (CPL 720.10[2], [3]) and, if so, whether he should be afforded youthful offender treatment … . With regard to the defendant’s conviction of resisting arrest …, the defendant contends, and the People concede, that the court also failed to determine whether he should be afforded youthful offender status (see CPL 720.20[1]). The parties are correct that the record does not demonstrate that the court made either of these required determinations … . People v Hunter, 2022 NY Slip Op 01320, Second Dept 3-2-22

 

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THE PEOPLE DID NOT MEET THEIR BURDEN TO SHOW THE LEGALITY OF THE SEIZURE OF DEFENDANT’S CLOTHES BY A DETECTIVE AT THE HOSPITAL WHERE DEFENDANT WAS BEING TREATED FOR A GUNSHOT WOUND; THE CLOTHES AND THE DNA EVIDENCE TAKEN FROM THE CLOTHES SHOULD HAVE BEEN SUPPRESSED; THE ERROR WAS HARMLESS HOWEVER (SECOND DEPT).

The Second Department determined the defendant’s clothes seized at the hospital where defendant was being treated for a gunshot wound should have been suppressed. The error was deemed harmless however:

The defendant had a legitimate expectation of privacy in his clothing, and the fact that the police perceived the defendant as a victim rather than a suspect at the time his clothing was seized did not strip the defendant of his Fourth Amendment protection … . Moreover, the People failed to establish that the testifying detective knew that the clothes would have covered the part of the defendant’s body where he was shot, as the detective admitted that he did not know what type of clothing was in the bag that was seized … . The People also failed to establish any exigent circumstances to justify seizure of the clothing, as they provided no evidence that the clothing was in danger of being removed or destroyed … . Accordingly, the seizure of the defendant’s clothing at the hospital was illegal, and the DNA evidence obtained from the items seized should not have been admitted into evidence at trial … . People v Gough, 2022 NY Slip Op 01317, Second Dept 3-2-22

 

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THE CONSENT-TO-SEARCH PROBATION CONDITION WAS NOT INDIVIDUALLY TAILORED TO THE OFFENSE AND SHOULD NOT HAVE BEEN IMPOSED; IT WAS NOT NECESSARY TO PRESERVE THE ERROR FOR APPEAL AND APPEAL WAS NOT PROHIBITED BY THE DEFENDANT’S WAIVER OF HIS RIGHT TO APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was no justification for the “consent-to-search” probation condition. Defendant stole a cab driver’s cell phone and pled guilty to attempted assault. The court noted it was not necessary to preserve the error for appeal and appeal was not prohibited by the waiver of appeal:

The probation department [requested] that as a condition of probation, the defendant be required to consent to a search by a probation officer of his person, vehicle, and place of abode, and the seizure of any illegal drugs, drug paraphernalia, gun/firearm or other weapon, or other contraband found (Condition No. 28). At sentencing, the Supreme Court imposed the consent to search condition of probation. On appeal, the defendant argues that this condition of his probation was improperly imposed.

The defendant correctly argues, and the People do not dispute, that this issue was not required to be preserved for appellate review, and that appellate review is not precluded by his waiver of the right to appeal … .

… [T]he defendant was a first-time offender and was not armed with a weapon at the time he committed the offense. While the defendant told the probation department that he was under the influence of alcohol at the time of the offense, he was not assessed as being in need of alcohol or substance abuse treatment. Under the circumstances, the consent to search condition of probation was improperly imposed because it was not individually tailored in relation to the offense, and was not, therefore, reasonably related to the defendant’s rehabilitation, or necessary to ensure that the defendant will lead a law abiding life … . People v Dranchuk, 2022 NY Slip Op 01312, Second Dept 3-2-22

 

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A SEX OFFENDER CERTIFICATION IS NOT PART OF A DEFENDANT’S SENTENCE; THEREFORE THE CERTIFICATION CANNOT BE SET ASIDE PURSUANT TO A MOTION TO SET ASIDE THE SENTENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s certification as a sex offender was not part of his sentence. Therefore the certification could not be set aside pursuant to CPL 440.20:

Prior to the defendant’s release from prison, the defendant moved, inter alia, pursuant to CPL 440.20 to vacate his certification as a sex offender on the ground that his certification was unlawful because the crime he was convicted of was not a sex offense or a sexually violent offense under Correction Law § 168-a. The Supreme Court granted that branch of the defendant’s motion and set aside so much of the sentence as certified the defendant as a sex offender and required him to pay a sex offender registration fee. The court then resentenced the defendant to the originally-imposed term of imprisonment and post-release supervision. The People appeal.

While a defendant’s certification as a sex offender under SORA is part of the judgment of conviction … , “SORA certification is not part of a sentence” … . Thus, the relief sought by the defendant was not available to him under CPL 440.20(1), which only authorizes a motion to set aside a sentence … . People v David, 2022 NY Slip Op 01310, Second Dept 3-2-22

 

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CONFLICTING ACCOUNTS OF WHAT THE POLICE OFFICERS SAW WHEN THEY APPROACHED THE VAN IN WHICH DEFENDANT WAS A PASSENGER FAILED TO DEMONSTRATE PROBABLE CAUSE FOR THE SEARCH OF THE VAN; THE WEAPON SEIZED FROM THE VAN SHOULD HAVE BEEN SUPPRESSED; DEFENDANT’S POSSESSION OF A WEAPON CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing the possession of a weapon conviction, determined defendant’s motion to suppress a handgun found in a van in which defendant was a passenger should have been granted. Inconsistencies in the police officer’s accounts of what the officers saw when they approached the van rendered the People’s proof at the suppression hearing insufficient to demonstrate a lawful search incident to arrest:

The Supreme Court credited the accounts of both Ramos and Pimentel and concluded that what Pimentel testified that he had observed gave the officers probable cause to search the minivan for a gun … . However, the officers’ versions of events sharply conflicted with each other as to where the defendant was sitting in the minivan, and what he was doing, when the officers arrived at the minivan’s front windows. According to Ramos, the defendant was sitting in the front passenger seat, while Pimentel claimed that the defendant was sitting in the middle row, and attempting to conceal a gun in a bag at his feet. Ramos, though, did not see a gun, furtive movements, or a bag. It seems improbable that, if the defendant did what Pimentel said he did, Ramos could somehow have failed to notice it.

Ramos’s and Pimentel’s accounts both could not have been true, since both officers acknowledged that they approached the minivan simultaneously and reached the front seats at the same time. People v Austin, 2022 NY Slip Op 01306, Second Dept 3-2-22

 

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ALLOWING THE PEOPLE’S INVESTIGATOR TO GO INTO THE JURY ROOM DURING DELIBERATIONS TO SHOW THE JURORS HOW TO OPERATE A DIGITAL RECORDER WAS A MODE OF PROCEEDINGS ERROR THAT REQUIRED REVERSAL, DESPITE THE DEFENDANT’S CONSENT TO THE PROCEDURE (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, determined the People’s investigator should not have been allowed to go into the jury room during deliberations to show the jurors how to operate a digital recorder. Although the defendant consented to the procedure, the Third Department decided the error was a “mode of proceedings” error which did not require preservation:

Pursuant to CPL 310.10 (1), a deliberating jury must be “under the supervision of a court officer” or “an appropriate public servant” and, “[e]xcept when so authorized by the court or when performing administerial duties with respect to the jurors, such court officer[] or public servant[] . . . may not speak to or communicate with [the jurors] or permit any other person to do so” … . Certainly, the People’s investigator cannot be said to be an appropriate public servant to interact with the jury in the deliberation room. Also troubling is the lack of a record of what occurred while the investigator was in the deliberation room. Indeed, the “right to a trial by jury in criminal cases is ‘fundamental to the American scheme of justice’ and essential to a fair trial. At the heart of this right is the need to ensure that jury deliberations are conducted in secret, and not influenced or intruded upon by outside factors” … . Given that the procedure that occurred here, allowing a representative of the People to interfere in the jury’s secret deliberations, goes “to the essential validity of the process and [is] so fundamental that the entire trial is irreparably tainted”… , we must reverse and remit for a new trial.  People v Jones, 2022 NY Slip Op 01069, Third Dept 2-17-22

 

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DEFENDANT SHOULD NOT HAVE BEEN RESENTENCED ON THE ORIGINAL CHARGE PURSUANT TO CPL 420.10 FOR FAILURE TO PAY RESTITUTION; THE JUDGE DID NOT MAKE THE STATUTORILY REQUIRED FINDINGS FOR RESENTENCING UNDER THAT STATUTE; RESENTENCE VACATED (THIRD DEPT).

The Third Department, reversing County Court, vacated defendant’s resentence. Once a defendant is sentenced, the court no longer has jurisdiction over the matter. Here, after it was determined defendant had willfully failed to pay the ordered restitution, defendant was resentenced to prison on the original conviction. By statute a defendant may be resentenced for failure pay restitution, but only after the court makes a finding the defendant is unable to pay due to indigency. No such finding was made here:

CPL 420.10 (3) provides that, when a court imposes restitution as part of a defendant’s sentence, the court can imprison the defendant if he or she fails to pay restitution; such provision authorizing imprisonment for failure to pay restitution can be set forth at the time of sentencing or may be added “at any later date while the . . . restitution . . . or any part thereof remains unpaid” (CPL 420.10 [3]). Although County Court therefore retained jurisdiction under the auspices of this statute, it erred in resentencing defendant pursuant to CPL 420.10 (5). As relevant here, CPL 420.10 (5) provides that, “[i]n any case where the defendant is unable to pay a fine, restitution or reparation imposed by the court, he [or she] may at any time apply to the court for resentence.” Resentencing is authorized “if the court is satisfied that the defendant is unable to pay the fine, restitution or reparation” (CPL 420.10 [5]). Here, there was no finding by the court that defendant was unable to pay the restitution due to indigency … . … [W]e refuse to equate defendant’s acceptance of the global agreement [agreeing to 81/2 to 25 years in prison including time served] with the application necessary to resentence him under CPL 420.10 (5) … . County Court could have sentenced defendant to a year in prison for his failure to pay under CPL 420.10 (3) and (4), but it did not. As it erred in utilizing CPL 420.10 (5), the resentence must be vacated. People v Marone, 2022 NY Slip Op 01070, Third Dept 2-17-22

 

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THE 3RD DEPARTMENT, JOINING THE 2ND, HOLDS THAT A DEFENDANT HAS A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT A SORA RISK-LEVEL PROCEEDING, DESPITE ITS CIVIL NATURE; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE; THE JUDGE DID NOT MAKE THE REQUIRED FINDINGS OF FACT AND CONCLUSIONS OF LAW (THIRD DEPT).

The Third Department, reversing County Court, in a full-fledged opinion by Justice Garry, determined: (1) defendant was entitled to and did not receive effective assistance of counsel at the SORA risk-level proceeding (which is civil in nature). despite his decision not to appear; and (2) the SORA judge did not make the required findings of fact and conclusions of law, requiring remittal:

Despite SORA proceedings being civil in nature, not criminal … , we now join the Second Department in explicitly holding that SORA defendants have the right to the effective assistance of counsel, pursuant to the Due Process Clauses contained in the 14th Amendment of the US Constitution and article I, § 6 of the NY Constitution, because the statutory right to counsel in such proceedings (see Correction Law § 168-n [3]) would otherwise be rendered meaningless, and because SORA determinations affect a defendant’s liberty interest … .

… Although defendant waived his right to be present at the SORA hearing, he did not waive his right to contest the Board’s risk level recommendation or the People’s arguments and proof … . Counsel — who acknowledged at the hearing that he had “had no contact” with defendant — made no arguments, essentially agreed to the Board’s recommendation, and failed to require the People to admit any proof at the hearing or County Court to provide any reasoning for its determination. … The record … reveals that counsel, who did not communicate with his client at all and “failed to litigate any aspect of the adjudication,” did not provide effective representation … . As defendant was deprived of the effective assistance of counsel, upon remittal he is entitled to a new hearing with different assigned counsel. People v VonRapacki, 2022 NY Slip Op 01071, Third Dept 2-17-22

 

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COUNTY COURT DID NOT MAKE THE REQUIRED FINDINGS OF FACT FOR DEFENDANT’S REQUEST FOR A DOWNWARD DEPARTURE IN THIS SORA RISK LEVEL PROCEEDING; ORDER REVERSED AND MATTER REMITTED (THIRD DEPT).

The Third Department, reversing County Court, determined County Court failed to make the required findings of fact for defendant’s request for a downward departure:

Defendant … argues that County Court erred in denying his request for a downward departure. Although the court did expressly deny this request in the order, it did not detail the factual findings in support of its conclusion. Thus, we are unable to ascertain the court’s reasoning for denying defendant’s request. Consequently, we reverse and remit for County Court to set forth its findings of fact for denying [*2]defendant’s request for a downward departure as required … . People v Harvey, 2022 NY Slip Op 01073, Third Dept 2-17-22

 

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DEFENDANT MADE GOOD FAITH EFFORTS TO COMPLY WITH THE TERMS OF HER PLEA AGREEMENT; SENTENCE REDUCED AND CONVICTION MODIFIED IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, reducing defendant’s sentence and modifying her conviction in the interest of justice, determined defendant had made good faith efforts to complete the anger-management program that was part of her plea agreement:

… [D]efendant entered into a plea agreement whereby she would plead guilty to second-degree assault, third-degree assault and endangering the welfare of a child, and the case would be adjourned for one year to allow her to complete a 12-week anger management program. If defendant completed the program, complied with an order of protection and had no new arrests, the People would allow her to withdraw her guilty plea to second-degree assault, and she would be sentenced to conditional discharges on the two misdemeanor convictions. Despite defendant’s diligent, repeated efforts to complete an anger management program, legitimate issues such as her inability to arrange childcare for her two young children after her 75-year-old grandmother, who had been caring for the children while defendant attended the sessions, broke her hip, prevented her from attending all the sessions. She enrolled in the program three times, each time beginning from the start, but could not complete the 12 weeks. At the time of sentencing, she had found, enrolled in and almost completed a different program close to her home with a schedule that allowed her to work and pick up her children after school. Although she did not complete the anger management program, defendant satisfied the remaining terms of the plea agreement. Under these circumstances, in the interests of justice we accordingly reduce the conviction and modify the sentence … . People v Perez, 2022 NY Slip Op 01104, Second Dept 2-17-22

 

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