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DEFENDANT WAS CONVICTED OF CRIMINAL POSSESSION OF A WEAPON FIRST DEGREE, THE WEAPON BEING AN IMPROVISED EXPLOSIVE DEVICE (IED); THE ATTEMPTED CRIMINAL POSSESSION OF A WEAPON THIRD DEGREE COUNT IS AN INCLUSORY CONCURRENT COUNT WHICH MUST BE DISMISSED; COUNTY COURT IMPROPERLY RESENTENCED DEFENDANT IN HIS ABSENCE, REQUIRING VACATION OF THE SENTENCE (THIRD DEPT).

The Third Department determined (1) the attempted criminal possession of a weapon third degree must be dismissed as an inclusory concurrent count of criminal possession of a weapon first degree and (2) the judge’s resentencing the defendant on the attempted criminal possession of a weapon third conviction in defendant’s absence was improper and warranted vacation of the sentence. The defendant was convicted of possessing an improvised explosive device (IED), essentially a bomb:

A person is guilty of attempted criminal possession of a weapon in the third degree “when, with intent to commit a crime, he [or she] engages in conduct” wherein “[s]uch person possesses any explosive or incendiary bomb [or] bombshell” (Penal Law §§ 110.00, 265.02 [2]). The terms explosive substance, explosive and incendiary bomb are not defined in the Penal Law. Explosives are, however, defined in the Labor Law as “gunpowder, powders used for blasting, high explosives, blasting materials, detonating fuses, detonators, pyrotechnics and other detonating agents, fireworks and dangerous fireworks as defined in section 270.00 of the [P]enal [L]aw, smokeless powder and any chemical compound or any mechanical mixture containing any oxidizing and combustible units, or other ingredients in such proportions, quantities, or packing that ignition by fire, friction, concussion, percussion or detonation of any part thereof may cause and is intended to cause an explosion” (Labor Law § 451). The terms explosive or incendiary bomb were added to Penal Law § 265.02 (2) in 1970 to cover Molotov cocktails within the meaning of the statute … . We agree with defendant that it would be impossible to commit the greater crime — criminal possession of a weapon in the first degree — without concomitantly, by the same conduct, committing the lesser crime involving possession of an explosive, incendiary bomb or bombshell. Thus, the conviction for attempted criminal possession of a weapon in the third degree must be vacated and dismissed as an inclusory concurrent count … . People v Graham, 2024 NY Slip Op 03104, Third Dept 6-6-24

Practice Point: Here the attempted criminal possession of a weapon third degree was dismissed as an inclusory concurrent count of criminal possession of a weapon first degree.

Practice Point: Resentencing the defendant in defendant’s absence is a violation of defendant’s constitutional and statutory rights to be present and requires vacation of the sentence.

 

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DEFENDANT SUFFICIENTLY DEMONSTRATED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN SO INFORMED; REVERSED AND REMITTED FOR A HEARING ON THE MOTION TO VACATE THE GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (THIRD DEPT).

The Third Department, reversing County Court and ordering a hearing on defendant’s motion to vacate his guilty plea on ineffective assistance grounds, determined defendant, a citizen of Haiti, sufficiently demonstrated he had never been informed of the deportation consequences of the guilty plea and he would not have pled guilty if he had been so informed:

… [D]efendant proffered a sworn affidavit wherein he averred that counsel did not inquire as to whether defendant was a citizen, never discussed with defendant his immigration status nor did he advise defendant that he could be deported as a result of his guilty plea. Defendant also asserted that, during the plea proceeding, County Court never inquired about whether he was a United States citizen, his immigration status or advised that a conviction could result in deportation. This assertion is supported by the record, which reveals no mention of citizenship or deportation at any point during defendant’s plea or sentencing … . Defendant also averred that he moved to the United States approximately 20 years ago, when he was six years old, and that his entire family resides in this country … . Furthermore, defendant asserted that he would not have pleaded guilty and would have insisted on going to trial if he had been informed that this conviction could result in deportation … . Thus, defendant sufficiently alleged that counsel failed to provide him with any information regarding deportation consequences of his plea and that defendant was prejudiced because he would not have pleaded guilty had he been advised of these consequences, such that a hearing is warranted … . Indeed, given defendant’s affidavit as well as the record of the plea proceeding, there is a genuine concern that, as defendant asserts, he was never advised of the deportation consequences of his plea. Accordingly, this matter must be remitted to County Court for a hearing on defendant’s CPL 440.10 motion. People v Philippe, 2024 NY Slip Op 03105, Third Dept 6-6-24

Practice Point: The failure to inform a non-citizen defendant of the deportation consequences of a guilty plea can constitute ineffective assistance.

Practice Point: A non-citizen defendant who shows he was not informed of the deportation consequences of the guilty plea and sufficiently demonstrates he would not have pled guilty if he had been so informed is entitled to a hearing on his motion to vacate the guilty plea.

 

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A SANDOVAL RULING ADDRESSED THE ADMISSIBILITY OF LIMITED REFERENCE TO DEFENDANT’S PRIOR CONVICTION ON CROSS-EXAMINATION; AT THE TIME OF THE ALLEGED RAPE, THE DEFENDANT TOLD THE VICTIM HE HAD SPENT SEVERAL YEARS IN PRISON; WITHOUT SEEKING A PRIOR VENTIMIGLIA RULING, THE PEOPLE INFORMED THE JURY ABOUT DEFENDANT’S “YEARS IN PRISON” STATEMENT TO THE VICTIM IN THE OPENING; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, ordering a new trial, determined the prosecutor’s introduction of a statement defendant made to the victim about his prior incarceration warranted reversal of defendant’s rape conviction. The prosecutor had not sought a prior “Ventimiglia” ruling on the admissibility of the statement. The statement was the subject of a prior Sandoval ruling which allowed limited reference to the prior conviction in cross-examination of the defendant. The trial judge, after hearing argument on the “Ventimiglia” issue after the statement had been introduced, determined the statement would have been ruled admissible had a prior request for a ruling been made:

In ruling on the People’s proffer, County Court fashioned a Sandoval compromise that limited the scope of questioning to the existence of the conviction and when it occurred, with no information about “the title, the classification, the violent nature under the Penal Law [or] the sentence . .. as well as underlying facts, unless the defense were to open the door with regard to those issues.” In spite of that ruling, in their opening statement, the People stated that, during the encounter but prior to any sexual assault, defendant “disclosed something unexpected, something that jarred [the victim]”; specifically, that “he had spent several years in prison.” * * *

We find that the People’s introduction of the statement referencing defendant’s prior incarceration without first seeking an advanced Ventimiglia ruling was improper … . While County Court’s Sandoval compromise was limited to the introduction of such evidence on cross-examination, it directly addressed the proof at issue; specifically, the allowable reference to defendant’s prior conviction. To this point, the People’s contention that the evidence was not subject to a prior ruling as it was part of the criminal conduct itself runs contrary to the fact that the Sandoval proffer on this exact evidence before trial reflected that it was subject to a discretionary determination as to whether the probative value outweighed the risk for real prejudice. Thus, the People effectively deprived defendant of the benefit of such analysis prior to introduction of the evidence by circumventing the Sandoval ruling … . People v Osman, 2024 NY Slip Op 03106, Third Dept 6-6-24

Practice Point: Here, at the time of the alleged rape, defendant told the victim he had spent several years in prison. Although the People sought a Sandoval ruling on the admissibility of evidence of defendant’s prior conviction during defendant’s cross-examination, the People did not seek a “Ventimiglia” ruling on the admissibility of such evidence in its direct case. The People’s reference to defendant’s statement in their opening was deemed reversible error.

 

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THE TRIAL JUDGE DID NOT PROCEED TO STEP THREE OF THE BATSON ANALYSIS OF THE PEOPLE’S PEREMPTORY CHALLENGE TO A JUROR; MATTER REMITTED FOR THAT PURPOSE (THIRD DEPT).

The Third Department, remitting the matter for findings on the Batson analysis of the People’s peremptory challenge to a juror, determined the judge did not follow the three-step procedure mandated by Batson. Defense counsel met the criteria for the initial step by noting that the juror appeared to be the only person of Hispanic descent on the jury (both defendant and the victim were of Hispanic descent) and the prosecutor had not asked the juror a single question. The prosecutor met the criteria for the second step by arguing the juror was laughing and would not take the case seriously. It was up to the judge at that point to evaluate defense counsel’s argument that the prosecutor’s reason was pretextual. The matter was sent back for the judge’s ruling on step three:

This record confirms that the court made only a step one decision, and did not make any determination on the issue of pretext, implicit or otherwise … .

This is a critical error because “[a] trial court that resolves a Batson challenge without proceeding to [the] third step ‘falls short of [providing] a meaningful inquiry into the question of discrimination’ ” … .* * *

The trial court’s role in the analysis is particularly important where, as here, the race-neutral reasons proffered by the People were based upon the challenged juror’s demeanor — an issue that Supreme Court was in a unique position to verify and which is not clearly established in the appellate record … . Given the failure to abide by the Batson protocol, we withhold decision and remit this case to Supreme Court to enable the trial judge who presided over this matter to determine “whether the race-neutral reason proffered by [the People] was pretextual”  … . People v Cruz, 2024 NY Slip Op 03108, Third Dept 6-6-24

Practice Point: Here, the judge’s failure to make a finding whether the prosecutor’s reason for a peremptory juror-challenge was pretextual (the third step in the Batson protocol) resulted in remittal for that purpose.

 

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WHEN A PRIOR MOTION HAS BEEN DENIED ON PROCEDURAL GOUNDS “WITHOUT PREJUDICE TO RENEW,” THE MOTION FOR LEAVE TO RENEW THE PRIOR MOTION DOES NOT HAVE TO BE SUPPORTED BY REASONABLE JUSTIFICATION FOR PRESENTING NEW FACTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for leave to renew its prior motion should not have been denied. The judge had denied the prior motion on procedural grounds “without prejudice to renew:”

… Supreme Court improvidently exercised its discretion in denying, on procedural grounds, the plaintiff’s motion for leave to renew its prior motion pursuant to CPLR 5225 … . Since the court had denied the plaintiff’s prior motion without prejudice to renew, the plaintiff was not required to demonstrate a reasonable justification for its failure to present alleged new facts on the prior motion … . Key Growth Invest LP v 1499 Fulton Realty, LLC, 2024 NY Slip Op 03036, Second Dept 6-5-24

Practice Point: If a judge denies a motion on procedural grounds “without prejudice to renew,” the motion for leave to renew does not have to provide a reasonable justification for the presentation of new facts.

 

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SUA SPONTE DISMISSAL OF THE COMPLAINT WAS NOT SUPPORTED BY EXTRAORDINARY CIRCUMSTANCES (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined there were no extraordinary circumstances justifying a sua sponte dismissal of the complaint in this foreclosure action:

A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, the Supreme Court was not presented with any extraordinary circumstances warranting sua sponte dismissal of the complaint … . HSBC Bank USA, N.A. v Badalamenti, 2024 NY Slip Op 03034, Second Dept 6-5-24

Practice Point: A sua sponte dismissal of a complaint is rarely upheld on appeal.

 

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ABSENT MOTHER’S ADMISSION TO THE ALLEGED FAMILY OFFENSE OR CONSENT TO AN ORDER OF PROTECTION, THE COURT SHOULD NOT HAVE ISSUED A PERMANENT (TWO-YEAR) ORDER OF PROTECTION WITHOUT HOLDING A FACT-FINDING HEARING; MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Family Court and remitting the matter for fact-finding, determent the judge in this family offense proceeding should not have issued a permanent order of protection against mother without a fact-finding hearing. Unless a party admits the family offense or consents to an order of protection, the court may issue only a temporary order pending a fact-finding hearing:

… Family Court improperly issued an order of protection directing the mother, inter alia, to stay away from the father and the child for a period of two years, except for court-ordered parental access with the child. Upon expressing dissatisfaction with the mother’s behavior at the September 2023 conference, the court initially signaled an intent to issue a temporary order of protection. It then changed course and chose to issue an order of protection that it described as “permanent” and that would last “two years.” However, the court did so without holding a fact-finding hearing to determine whether the mother committed the family offenses alleged in the father’s petition. Nor did it obtain an admission from the mother that she committed such family offenses or secure her consent to the issuance of the order of protection. The court therefore failed “to observe the procedural steps set forth in Family Ct Act § 154-c(3)” before issuing that order … . … [S]ince a fact-finding hearing was not held and the court otherwise rendered its determination without receiving any evidence demonstrating that the mother committed the alleged family offenses, the record is not sufficient for this Court to render an independent determination on that question … . Matter of Acker v Teneyck, 2024 NY Slip Op 03043, Second Dept 6-5-24

Practice Point: Although a Family Court judge can issue a temporary order of protection during a family offense proceeding, the judge cannot issue a permanent order of protection unless the opposing party admits the family offense, consents to the order of protection, or the court holds a fact-finding hearing.

 

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THE ORDER IMPLEMENTING THE PLAINTIFFS’ PLAN FOR THE SEALING OF NYPD’S RECORDS OF FAVORABLY TERMINATED CRIMINAL PROCEEDINGS AMOUNTED TO A PERMANENT INJUNCTION WITHOUT A DETERMINATION ON THE MERITS; MATTER REMITTED (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Kern, over a dissenting opinion, determined the order by Supreme Court implementing plaintiffs’ plan for sealing the New York City Police Department’s (NYPD’s) records of criminal prosecutions which are favorably terminated amounted to a permanent injunction issued without a determination on the merits, either by way of a summary judgment motion or a trial:

The New York sealing statutes at issue here, enacted in 1976, require that upon the favorable termination of a criminal proceeding or a noncriminal conviction, unless the government demonstrates to the satisfaction of the court that the interests of justice require otherwise, “arrest information,” including photos, palm and fingerprints of arrestees, and official records and papers relating to an arrest or prosecution, will be “sealed and not made available” to any person or public or private agency, subject to six statutorily enumerated exceptions (Criminal Procedure Law §§ 160.50, 160.55 [Sealing Statutes]). * * *

We find that Supreme Court erred by prematurely issuing an overbroad permanent injunction without first making a final determination on the merits of the claim after a trial or summary judgment motion. Contrary to plaintiffs’ argument, the Implementing Order is a permanent injunction rather than a preliminary injunction. The purpose of a preliminary injunction “is not to determine the ultimate rights of the parties, but to maintain the status quo until there can be a full hearing on the merits” … . Conversely, a permanent injunction is a type of final judgment that is issued on the merits of the claims asserted … . R.C. v City of New York, 2024 NY Slip Op 03017, First Dept 6-4-24

Practice Point: An order which includes no indication it is temporary is a permanent, not a preliminary, injunction which should not issue without a determination on the merits by summary judgment motion or trial.

 

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SECOND DEPARTMENT TO JUDGES: DON’T DISMISS A COMPLAINT SUA SPONTE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Dillon, made the following point explicit: a sua sponte dismissal of a complaint is almost never appropriate and almost always will be reversed:

Sua sponte dismissals are not appealable as of right (see CPLR 5701[a][2] …). The reason is that such dismissals are not, by definition, the product of motions made on notice for that particular relief as otherwise statutorily required. Nevertheless, the Second Department has consistently recognized the gravity of sua sponte dismissals and the lack of opportunity for aggrieved parties to have been heard on the dispositive issue at the trial level. Those circumstances have caused the Second Department to typically grant discretionary applications for leave to appeal (see CPLR 5701[c]), or relatedly, to deem notices of appeal to be applications for leave to appeal, which have been liberally granted … . * * *

The importance that courts not dismiss actions sua sponte absent extraordinary circumstances is grounded in a fundamental concept that lawyers and judges know well—that due process requires parties to be given notice and an opportunity to be heard about litigation issues … . Courts are to be bastions of due process. It is not the role of the court, within the moat of that bastion, to seize upon an issue not raised by any party in a motion and to unilaterally dismiss an action on the basis of that discrete issue, without providing the party whose claim is dismissed so much as notice of the issue and an opportunity for all parties to be heard on it. The Court of Appeals has cautioned the judiciary that “[w]e are not in the business of blindsiding litigants, who expect us to decide [matters] on rationales advanced by the parties, not arguments their adversaries never made” … . Wells Fargo Bank, N.A. v Louis, 2024 NY Slip Op 02948, Second Dept 5-29-24

Practice Point: Judges should not dismiss complaints sua sponte because the parties are not given proper notice of the relevant issue and the parties do not have the opportunity to be heard on it.

 

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THE PLEA ALLOCUTION NEGATED ELEMENTS OF THE CRIME; APPEAL HEARD DESPITE FAILURE TO PRESERVE THE ISSUE BY MOVING TO WITHDRAW THE PLEA; GUILTY PLEA VACATED (SECOND DEPT). ​

The Second Department, vacating defendant’s guilty plea, determined the defendant’s factual recitation preceding the plea negated elements of the offense. The court heard the appeal despite a failure to preserve the error by moving to withdraw the plea:

Although the defendant failed to preserve for appellate review his contention concerning the factual recitation with respect to the charge of attempted burglary in the second degree, where, as here, the defendant’s factual recitation clearly casts significant doubt upon his guilt or otherwise calls into question the voluntariness of the plea, the defendant may challenge the sufficiency of the plea allocution on direct appeal despite the failure to move to withdraw his plea of guilty on that ground … .

The crime of attempted burglary in the second degree provides, in relevant part, that a person is guilty of that offense when, inter alia, he or she knowingly enters a dwelling unlawfully with the intent to commit a crime therein (Penal Law §§ 110.00, 140.25[2]). During his plea allocution, the defendant stated that he did not enter the home knowingly. Upon further questioning by the County Court, the defendant stated that he had “no intent” to commit the crime. The defendant’s factual recitation therefore negated an essential element of attempted burglary in the second degree, which was not corrected by further inquiry by the court, thereby calling into question the voluntariness of the defendant’s plea … . People v Martinez, 2024 NY Slip Op 02938, Second Dept 5-29-24

Practice Point: When the plea allocution negates elements of the crime and the judge does not inquire further, the question whether the plea was voluntary is raised.

Practice Point: When it is clear from the record that the plea allocution negated elements of the crime, the issue will be heard on direct appeal even if not preserved by a motion to withdraw the plea.

 

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