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THE JUDGE WAS REQUIRED TO DETERMINE WHETHER DEFENDANT IS AN “ELIGIBLE YOUTH,” AND, IF SO WHETHER DEFENDANT SHOULD BE ADJUDICATED A YOUTHFUL OFFENDER; THE JUDGE WAS NOT AUTHORIZED TO ACCEPT A GUILTY PLEA TO SECOND DEGREE MURDER FROM THE JUVENILE DEFENDANT; THE WAIVER OF APPEAL WAS INVALID (SECOND DEPT).

The Second Department determined: (1) because defendant pled guilty to “armed felonies,” the judge was required to determine on the record whether defendant was an “eligible youth” and, if so, whether he should be afforded youthful offender status; (2) the judge was not authorized to accept a guilty plea for second degree murder from the juvenile defendant; and (3) the waiver of appeal was invalid:

… Supreme Court was required to determine on the record whether the defendant was an “eligible youth” (CPL 720.10[2][a][ii]), by considering the presence or absence of the factors set forth in CPL 720.10(3), and, if so, whether he should be afforded youthful offender status … . …

… Supreme Court was not authorized to accept a plea of guilty to count 3 [second degree murder]. As a juvenile offender, the defendant cannot be held criminally responsible for felony murder where the underlying felony, attempted robbery, is a crime for which he cannot be held criminally responsible (see CPL 1.20[42][2]; Penal Law § 30.00[2]; People v Stowe, 15 AD3d 597, 598; Matter of Tracy C., 186 AD2d 250, 251; People v Smith, 152 AD2d 56, 61). Accordingly, … the defendant’s plea of guilty to murder in the second degree … must be set aside … .

… Supreme Court’s oral colloquy and written appeal waiver mischaracterized the nature of the appeal waiver as an absolute bar to the taking of a direct appeal and a forfeiture of the attendant right to counsel and poor person relief … . People v Shelton, 2022 NY Slip Op 01050, Second Dept 2-16-22

 

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THE TRIAL JUDGE DID NOT MEANINGFULLY RESPOND TO A NOTE FROM THE JURY; RE-READING THE ORIGINAL INSTRUCTIONS WAS NOT SUFFICIENT; CONVICTION REVERSED, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department reversed the judgment of conviction and ordered a new trial because the trial judge did not meaningfully respond to a note from the jury. Under the facts here, re-reading the original instructions was not sufficient:

… [W]hen the jury was deliberating, the County Court failed to meaningfully respond to one of the jury’s notes. “Pursuant to CPL 310.30, the trial court has an obligation to meaningfully respond to all questions from the jury during deliberations” … . “Although simply rereading the original instructions may, under the appropriate circumstances, constitute a meaningful response” … , here, it was error for the court to respond to the jury’s last question about the elements of one of the charges by simply rereading its original instructions. The jury had previously sent a note about that charge demonstrating its initial confusion about that instruction … . The record reflects that defense counsel and the court perceived that, with respect to the jury note at issue, the jury may have been asking whether the defendant was required to know of the falsity of the information in the document that was alleged to contain false information at the time she submitted it to the Department of Health investigator. Notwithstanding its perception about the jury’s inquiry, the court did not seek any further clarification from the jury about that note. Under these circumstances, at a minimum, the court should have asked the jurors to again clarify their request … . People v Manzano, 2022 NY Slip Op 01040, Second Dept 2-16-22

 

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DEFENDANT’S STATEMENT “I WOULD LOVE TO GO PRO SE” WAS NOT A DEFINITIVE REQUEST TO REPRESENT HIMSELF AND THEREFORE THE STATEMENT DID NOT TRIGGER THE NEED FOR A SEARCHING INQUIRY BY THE JUDGE (CT APP).

The Court of Appeals, in a brief memorandum decision over an extensive two-judge dissent, determined defendant’s statement “I would love to go pro se” was not a definitive commitment to self-representation and therefore did not trigger an inquiry by the judge:

… [D]efendant did not clearly and unequivocally request to proceed pro se. During a colloquy with the trial court, defendant referenced the unsuccessful application to relieve his assigned counsel made at his prior appearance, and he renewed that application, claiming that counsel was “ineffective.” The court denied the application and rejected defendant’s renewed attempt to read aloud from what defendant had previously referred to as “my testimony.” Upon review of the record as a whole, defendant’s retort, “I would love to go pro se,” immediately after the court’s denial of his applications “d[id] not reflect a definitive commitment to self-representation” that would trigger a searching inquiry by the trial court … . People v Duarte, 2022 NY Slip Op 00960, Ct App 2-15-22

 

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THE SO-CALLED TWO-HOUR RULE, REQUIRING THE REQUEST FOR A DWI BREATH TEST BE MADE AND THE REFUSAL WARNINGS BE GIVEN WITHIN TWO HOURS OF ARREST, DOES NOT APPLY TO THE ADMINISTRATIVE LICENSE REVOCATION HEARINGS HELD BY THE DEPARTMENT OF MOTOR VEHICLES (DMV); THEREFORE THE FACT THAT THE PETITIONER WAS ASKED TO TAKE THE BREATH TEST AND WAS GIVEN THE REFUSAL WARNINGS THREE HOURS AFTER ARREST DID NOT PRECLUDE THE DMV FROM CONSIDERING PETITIONER’S TEST REFUSAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFore, over a dissenting opinion, determined the so-called two-hour rule does not apply to a driver’s license revocation administrative hearing after a DWI arrest. Within two hours of arrest the police can warn the driver that a refusal to submit to the blood-alcohol breath test is admissible at trial. If the request to submit to the test is made and the refusal warnings are given more than two hours after arrest, however, the refusal is not admissible at trial. Here the petitioner refused the DWI breath test three hours after arrest, after the refusal warnings were given. He argued the two-hour rule should apply and the refusal should not be considered at the Department of Motor Vehicle’s (DMV’s) administrative license revocation hearing:

Petitioner’s reliance on the statutory interpretation analysis in People v Odum [31 NY3d 344] as support for a motorist’s substantive right to refuse a chemical test without consequence is misplaced. Odum addressed the admissibility at trial of the results of a chemical test administered more than two hours after the defendant’s arrest, and whether the refusal warnings, including the inaccurate warning regarding the use of any refusal at a criminal trial, as given to him rendered his consent to the test involuntary. We emphasized that the 1973 statute authorizing the admissibility of evidence of a test refusal at a criminal trial was in derogation of common law and concluded as a result that the statutory provision authorizing such admission—Vehicle and Traffic Law § 1194 (2) (f)—had to be strictly construed to include the two-hour rule … . In stark contrast, the limitation on the scope of the revocation hearing in section 1194 (2) (c) is not in derogation of the common law and is a subsequently enacted provision that specifically governs the issues that may be considered at an administrative hearing … . Matter of Endara-Caicedo v Vehicles, 2022 NY Slip Op 00959, CtApp 2-15-22

 

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THE WAIVER OF APPEAL WAS INVALID; THE PLEA COURT CONFLATED THE RIGHT TO APPEAL WITH THE RIGHTS FORFEITED BY A GUILTY PLEA; CASE REMITTED TO THE APPELLATE DIVISION FOR CONSIDERATION OF THE SUPPRESSION CLAIM (CT APP).

The Court of Appeals, reversing the Appellate Division and remitting the case for consideration of the suppression claim, upon the People’s concession, determined the waiver of appeal was invalid:

… [O]rder reversed and case remitted to the Appellate Division, Second Department, for further proceedings. Under the totality of the circumstances and upon the People’s concession that the appeal waiver was invalid because the plea court conflated the right to appeal with those rights automatically forfeited by a guilty plea, defendant’s appeal waiver did not foreclose consideration of his suppression claim … . People v Johnson, 2022 NY Slip Op 00909, CtApp 2-10-22

 

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THE PEOPLE FOCUSED THEIR PROOF ON THE SEXUAL MOTIVATION FOR THE BURGLARY; ALTHOUGH BURGLARY SECOND IS A LESSER INCLUDED OFFENSE OF BURGLARY SECOND AS A SEXUALLY MOTIVATED OFFENSE, THE JURY SHOULD NOT HAVE BEEN CHARGED ON THE LESSER OFFENSE BECAUSE THE DEFENDANT HAD NO PRIOR NOTICE OF THAT POSSIBILITY (FIRST DEPT).

The First Department, dismissing the burglary second count, determined the People’s request to instruct the jury on burglary second as a lesser included offense of burglary second as a sexually motivated offense should not have been granted. Although burglary second is a lesser included offense of burglary second as a sexually motivated offense, the People’s case focused only on the sexual motivation. Defendant therefore did not have notice the jury would consider burglary second:

… [T]he court improperly charged the lesser-included offense because the People, through the way they presented their case, deprived defendant of notice of the possibility that the jury would be asked to consider a lesser-included. In People v Barnes (50 NY2d 375 [1980]), the Court of Appeals observed that, where the People in a burglary case limit to a particular crime the act that the defendant intended to commit while unlawfully in a building, “the court is obliged to hold the prosecution to this narrower theory alone” … . * * *

In opposing defendant’s pretrial motion to sever certain charges in the indictment from the others, the People focused exclusively on defendant’s sexual harassment of the complainant, and on his grabbing the arm and pulling the shirt of another woman he encountered in the dorm. In making an application for the admission of certain Molineux evidence, the prosecutor focused only on the theory that defendant entered the dorm to satisfy his own sexual urges. And, in his opening statement, the prosecutor stated that defendant “knowingly and unlawfully entered the private area of a dorm to do exactly what he had been doing minutes prior — to grab, to grope and to harass the young women who lived there.” Further, the prosecutor downplayed the behavior defendant displayed towards some men he saw in the lobby of the dorm, stating that “the evidence will show that he was substantially motivated by his desire to abuse women when he passed that turnstile and unlawfully entered the private area of the dorm.” People v Seignious, 2022 NY Slip Op 00948, First Dept 2-10-22

 

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DEPRAVED INDIFFERENCE MURDER CONVICTION AFFIRMED; DURING A POLICE CHASE, DEFENDANT DROVE THE WRONG WAY ON A HIGHWAY AND CRASHED HEAD-ON INTO AN ONCOMING CAR (FIRST DEPT).

The First Department determined the evidence supported defendant’s depraved indifference murder conviction stemming from his driving the wrong way on a highway and crashing into an oncoming car during a police chase:

While fleeing from the police, defendant drove 14 blocks against oncoming traffic on the West Side Highway, a major roadway, despite openings in the median between the north and southbound lanes, while running several red lights and driving onto the curb and sidewalk. Additionally, defendant did not avail himself of parking lots and driveways on the west side of the Highway, where he could have pulled off to avoid any collision with an oncoming vehicle. Heading north, the Highway merges into, and becomes, the Henry Hudson Parkway at the intersection of 57th Street. Instead of utilizing the last available opportunity to turn into the north bound lanes, defendant made the decision to continue driving in the wrong direction and entered onto the Parkway. It is unrefuted that the Parkway had no breaks in the median through which he could return to the northbound lanes and that oncoming cars were going even faster there than on the Highway because the speed limit increased from 35 mph to 50 mph. After he got on the Parkway, defendant remained in the lane immediately to the left of the concrete barrier separating the northbound and southbound lanes, made no effort to change lanes or to swerve to avoid oncoming vehicles and made no effort to stop or slow down, despite the fact that he was now on a parkway. He continued driving this way on the Parkway for seven blocks at which time he collided, head-on, with a vehicle driving in the proper direction in the southbound lane. People v Herrera, 2022 NY Slip Op 00949, First Dept 2-10-22

 

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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS; DEFENDANT AVERRED HIS ATTORNEY DIDN’T REQUEST THE SEARCH WARRANT DOCUMENTS, DIDN’T MAKE A SUPPRESSION MOTION, AND DIDN’T INFORM HIM THAT THE LEGALITY OF THE SEARCH WARRANTS COULD BE CONTESTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to vacate his conviction on the ground of ineffective assistance of counsel. Defendant alleged his attorney did not “request and review the search warrant affidavits, move to controvert the search warrants, or advise him before he pleaded guilty that challenging the legality of the search warrants was an option:”

Defense counsel’s “investigation of the law, the facts, and the issues that are relevant to the case” is “[e]ssential to any representation, and to the attorney’s consideration of the best course of action on behalf of the client” … . Accordingly, a defendant’s right to representation entitles him or her “‘to have counsel conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself [or herself] time for reflection and preparation for trial'” … . Here, the defendant’s averments in his affidavit, along with other evidence submitted in support of his motion, were sufficient to warrant a hearing on the issue of whether his former counsel was ineffective for failing to conduct an appropriate investigation to determine whether pretrial motions concerning the search warrants should be made, and failing to advise him of potential challenges to the legality of the search warrants before he pleaded guilty to possession counts predicated on physical evidence recovered pursuant to the warrants … . People v Tindley, 2022 NY Slip Op 00886, Second Dept 2-9-22

 

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A PHOTOGRAPH DOWNLOADED FROM FACEBOOK ALLEGEDLY SHOWING DEFENDANT WEARING CLOTHES SIMILAR TO THE CLOTHES WORN BY THE PERPETRATOR SHOULD NOT HAVE BEEN ADMIITTED IN EVIDENCE; THE PHOTOGRAPH WAS NOT AUTHENTICATED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined that a photograph downloaded from Facebook allegedly showing the defendant wearing clothes similar to those worn by the perpetrator was not authenticated and should not have been admitted in evidence:

In order to admit a photograph into evidence, it must be authenticated by proof that it is genuine and that it has not been tampered with … . Here, the People failed to properly authenticate the photograph. The People’s only authentication evidence consisted of the testimony of a police witness who searched for the Facebook profile 1½ years after the crime. They did not proffer any evidence or testimony demonstrating that the photograph was “a fair and accurate representation of the scene depicted or that it was unaltered” … . To the contrary, the police witness testified that he did not know whether the photograph had been altered. Furthermore, the People did not present any evidence “to establish that the web page belonged to, and was controlled by, [the] defendant” or any evidence as to when the photograph was created or posted … .

… “[A]dmission of the photograph here lacked a proper foundation and, as such, constituted error as a matter of law” … . People v Mayo, 2022 NY Slip Op 00881, Second Dept 2-9-22

 

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THE SENTENCING COURT SHOULD NOT HAVE ENHANCED DEFENDANT’S SENTENCE BASED ON A POSITIVE DRUG TEST; DEFENDANT DID NOT VIOLATE ANY OF THE TERMS OF THE PLEA AGREEMENT AS IT WAS DESCRIBED ON THE RECORD BY THE COURT; DEFENDANT SUCCESSFULLY COMPLETED THE RESIDENTIAL DRUG TREATMENT PROGRAM, WHICH IS WHAT THE PLEA AGREEMENT CALLED FOR (SECOND DEPT).

The Second Department determined Supreme Court should not have imposed an enhanced sentence because there was no showing that defendant had violated any condition of the plea agreement:

It was undisputed that the defendant successfully completed the 90-day in-patient residential program, which was the only specific program identified by the court at the plea proceeding. Indeed, the court’s actual instruction to the defendant at the plea proceeding was to “complete the . . . residential program.” The court did not indicate at the plea proceeding that the defendant would be subject to continuous and open-ended treatment, or that a single positive drug test at any time would constitute a violation of the plea agreement. While the court referenced “the conditions of the program” at the beginning of the plea proceeding, there was no subsequent reference in the record to these conditions, and no allegation that the defendant breached any of them. Although the court could have directed the defendant to successfully engage in ongoing treatment up until the date of the sentence, it did not explicitly impose such a condition here … . The court “never stated” that the defendant was required to continue his treatment beyond the residential program identified on the record … , and “only the failure to comply with explicit conditions can form the basis of a violation” … . People v Martinez, 2022 NY Slip Op 00880, Second Dept 2-9-22

 

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