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DEFENDANT, WHO WAS 19 WHEN ARRSTED FOR HAVING CHILD PORNOGRAPHY ON HIS PHONE, AND WHO HAD NEVER COMMITTED ANY OTHER OFFENSES, WAS ENTITLED TO A DOWNWARD DEPARTURE TO SORA RISK-LEVEL ONE; COUNTY COURT APPLIED THE WRONG EVIDENTIARY STANDARD (FOURTH DEPT).

The Fourth Department, reversing County Court, determined (1) County Court erred when it applied the “clear and convincing” evidentiary standard, as opposed to the “preponderance of the evidence” standard to the SORA risk assessment proceeding, and (2) defendant in this child pornography case was entitled to a downward departure to level one. Defendant, who was 19, had child pornography on his phone but had never committed a sexual offense or any other crime. He was sentenced to probation. He was assessed 90 points (level two) by the People (including 30 points for three or more victims [risk factor 3] and 20 points because the victims were strangers [risk factor 7]).

As the Court of Appeals has stated, “in deciding a child pornography offender’s application for a downward departure, a SORA court should, in the exercise of its discretion, give particularly strong consideration to the possibility that adjudicating the offender in accordance with the guidelines point score and without departing downward might lead to an excessive level of registration” … . “The departure process is the best way to avoid potentially ‘anomalous results’ for some child pornography offenders that ‘the authors of the Guidelines may not have intended or foreseen’ ” … .

Here, defendant established by a preponderance of the evidence that there are mitigating factors “not otherwise adequately taken into account by the guidelines” …  The mitigating factors include the fact that defendant was assessed points under risk factors 3 and 7, without which he would have scored as a level one risk. Further, weighing the mitigating factors against any aggravating factors, we conclude that the totality of the circumstances warrants a downward departure to risk level one to avoid an over-assessment of “defendant’s dangerousness and risk of sexual recidivism” … . People v Stagles, 2023 NY Slip Op 06613, Fourth Dept 12-22-23

Practice Point: The correct evidentiary standard for a SORA risk-level assessment is “preponderance of the evidence.”

Practice Point: For offenders convicted of possession of child pornography, who are assessed SORA risk-level points for “three of more victims” and “strangers as victims” based solely on the images, may be entitled to a downward departure.

 

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THE CONTEMPT AND GAG ORDERS ISSUED IN THIS TRIAL WHERE FORMER PRESIDENT TRUMP IS THE DEFENDANT ARE NOT APPROPRIATELY CHALLENGED BY A DEMAND FOR A WRIT OF PROHIBITION OR AN ARTICLE 78 REVIEW; MOTIONS TO VACATE THE ORDERS SHOULD BE MADE; ANY DENIAL OF THE MOTIONS COULD THEN BE APPEALED (FIRST DEPT).

The First Department determined demand for a writ of prohibition (CPLR 7803(2)) and an article 78 review (CPLR 7801(2)) of Contempt Orders and Gag Orders issued by the judge in this trial (where former President Donald Trump is the defendant) were not the proper procedural vehicles. The proper procedure would be to move the vacate the orders and then appeal the denial of the motion:

In determining whether to exercise the court’s discretion and grant a writ of prohibition, several factors are to be considered, including “the gravity of the harm which would be caused by an excess of power” and “whether the excess of power can be adequately corrected on appeal or by other ordinary proceedings at law or in equity” … . Here, the gravity of potential harm is small, given that the Gag Order is narrow, limited to prohibiting solely statements regarding the court’s staff … . Further, while the Gag Order and Contempt Orders were not issued pursuant to formal motion practice, they are reviewable through the ordinary appellate process (see CPLR 5701[a][3] …). For these reasons, a writ of prohibition is not the proper vehicle for challenging the Gag Order and Contempt Orders.

As to the first cause of action, CPLR 7801(2) clarifies that article 78 review is not permitted in a civil or criminal action where it can be reviewed by other means, “unless it is an order summarily punishing a contempt committed in the presence of the court” (CPLR 7801[2]). The Contempt Orders here were not issued “summarily,” nor was the contempt “committed in the presence of the court.” To the extent there may have been appealable issues with respect to any of the procedures the court implemented in imposing the financial sanctions, the proper method of review would be to move to vacate the Contempt Orders, and then to take an appeal from the denial of those motions. Matter of Trump v Engoron, 2023 NY Slip Op 06461, First Dept 12-14-23

Practice Point: The contempt and gag orders issued in this trial of former president Donald Trump cannot be challenged by a demand for a writ of prohibition or an Article 78 review. The proper procedure is to move to vacate the orders and appeal any denial.

 

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THE PEOPLE DID NOT EXERCISE DUE DILIGENCE IN PROVIDING DISCOVERY; THE CERTIFICATE OF COMPLIANCE WAS INVALID AND DID NOT STOP THE SPEEDY-TRIAL CLOCK (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, determined the People did not exercise due diligence in providing discovery to the defense. Therefore the certificate of compliance (COC) was invalid and did not stop the speedy trial clock. The prosecution was time-barred:

In 2019, the New York State Legislature enacted sweeping reforms that expanded and restructured disclosure obligations in criminal cases, effective at the start of 2020 (see L 2019, ch 59, § 1, pt LLL). This appeal concerns a new requirement set forth in CPL article 245 that the People file a certificate of compliance (COC) with their statutory disclosure obligations (see CPL 245.50 [1], [3]). * * *

Due diligence is a mixed question of fact and law, and thus we consider whether the fact finder’s conclusions are supported by the record … . Viewed under the proper legal standard, there is no record support for the conclusion of the courts below that prior to filing the initial COC, the People exercised due diligence and made reasonable inquiries to identify mandatory discovery items relating to this case.

The belated disclosure here consisted of routinely produced disclosure materials—the creation of at least one of which was mandated by law … . The absence of such significant items of disclosure was readily noticed by the defense, which then brought it to the attention of the People and the court. The prosecution had two opportunities to establish that they had exercised due diligence, but failed to do so. At the appearance on May 26th, in which defense counsel first called attention to the missing items, the prosecutor simply asserted that he had “checked” without any elaboration as to what efforts were made to verify whether there was any outstanding discovery or whether the disclosure requested by the defense—which was in the possession of the People (see CPL 245.20 [2])—actually existed. The prosecutor speculated that such disclosure items did not exist and had not been created, and otherwise stated in a cursory fashion that all discovery had been turned over. When the parties appeared on July 6th following Bay’s CPL 30.30 motion, the People again made no mention of any efforts taken to ascertain the existence of discovery materials before the COC was filed, nor did they explain why some discovery was initially missing or how it came into their possession. People v Bay, 2023 NY Slip Op 06407, CtApp 12-14-23

Practice Point: Here the People did not exercise due diligence in complying with their discovery obligations. Therefore the certificate of compliance (COC) was invalid and did not stop the speedy trial clock. If the People can demonstrate they exercised due diligence in providing discovery, the COC will not be deemed improper.

 

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HERE A WITNESS TO THE SHOOTING IDENTIFIED THE DEFENDANT AS THE SHOOTER FOR THE FIRST TIME AT TRIAL; UNDER THE FACTS, THE DEFENDANT WAS NOT PREJUDICED; THE COURT OFFERED GUIDANCE ON HOW TO HANDLE OR AVOID THE SITUATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a comprehensive dissenting opinion, affirming the Appellate Division, determined defendant was not prejudiced by a witness to the shooting who identified him as the shooter for the first-time at trial. The opinion takes note of the suggestiveness of a first-time identification at trial and offers instructions on how the situation should be handled and/or avoided. Here, however, the the defendant was aware of the witness and did not request any identification procedures, surveillance video captured both the shooter and the victim, the victim knew the shooter, and the victim identified the shooter. The court noted that any error was clearly harmless:

Concerning identifications made at trial, this Court and many others have recognized the inherent suggestiveness of the traditional in-court identification procedure, with a single defendant sitting at a table with defense counsel … . As with an unduly suggestive pretrial identification, it will often be immediately clear to the witness who the accused defendant is, especially if the witness has a rudimentary knowledge of courtroom seating arrangements. The principal danger is that, faced with the pressures of testifying at trial, the witness will identify the defendant as the perpetrator simply because the defendant is sitting in the appropriate spot, and not because the witness recognizes the defendant as the same person that they observed during the crime. Inasmuch as the traditional courtroom seating arrangement may itself suggest to the witness who should be identified, trial courts must be vigilant to ensure that where a witness has not previously identified the defendant in a properly conducted pretrial identification procedure such as a photo array or lineup, the suggestiveness of a first-time, in-court identification procedure does not create an unreasonable danger of a mistaken identification. People v Perdue, 2023 NY Slip Op 06404, CtApp 12-14-23

Practice Point: Here, under the unique facts of the case, defendant was not prejudiced by allowing a witness to identify him as the shooter for the first time at trial. The court offered guidance on how the situation should be handled and/or avoided.

 

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HERE THERE WAS NO INDICATION THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT, A JURISDICTIONAL DEFECT (THIRD DEPT). ​

The Third Department, dismissing the superior court information, determined the waiver of indictment was invalid because there was not evidence it was signed in open court:

A defendant “may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney,” and “such waiver shall be evidenced by written instrument signed by the defendant in open court in the presence of his or her counsel” … . Although the record reflects that defendant orally agreed to waive indictment in open court on November 19, 2020, the written waiver of indictment, which defendant and defense counsel acknowledged signing, is dated November 17, 2020, and the minutes do not demonstrate that defendant signed the waiver in open court, as constitutionally mandated. “Compliance with this unequivocal dictate is indispensable to a knowing and intelligent waiver and the failure to adhere to this strict procedure is a jurisdictional defect which survives a guilty plea and appeal waiver and need not be preserved for review by a motion to withdraw the plea” … . “Moreover, neither the written waiver of indictment, to which the District Attorney executed consent on [October 14, 2020], nor County Court’s undated order approving the waiver, indicates that the waiver was signed in open court” on November 19, 2020 … . “In light of this jurisdictional defect, defendant’s guilty plea must be vacated and the superior court information must be dismissed” … . People v Berry, 2023 NY Slip Op 06410, Third Dept 12-14-23

Practice Point: Here the waiver of indictment was deemed invalid because there was no indication the waiver was signed in open court, which is a jurisdictional defect. The superior court information was therefore dismissed.

 

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THE JUDGE, SUA SPONTE, DECIDED TO ENHANCE DEFENDANT’S AGREED-UPON SENTENCE BASED UPON HER RESPONSES TO QUESTIONS POSED BY PROBATION FOR THE PRESENTENCE REPORT; THE PROSECUTOR DID NOT ASK FOR THE ENHANCED SENTENCE; THE DEFENSE WAS NOT GIVEN AN OPPORTUNITY TO ADDRESS THE ISSUE, THEREBY DEPRIVING DEFENDANT OF DUE PROCESS (THIRD DEPT).

The Third Department, vacating defendant’s sentence, over a dissent, determined that the defense was not given an opportunity to address the sentencing judge’s sua sponte decision to enhance the agreed-upon sentence based on defendant’s responses to questions posed by probation for the presentence report. The prosecutor did not see any conflict between defendant’s plea allocution and her responses in the report and did not call for an enhanced sentence: So the defense was taken by surprise.. Defense counsel requested a hearing but the request was denied:

After the parties had an opportunity to state their arguments, the court engaged in a lengthy colloquy before … stating that it disagreed with the People’s conclusion that there was no violation of the plea agreement and determining that it would enhance defendant’s sentence to the maximum allowable term of imprisonment. It was at this point that defendant first had any indication that she was facing a potential sentencing enhancement and, in response, defense counsel immediately requested a hearing, which County Court summarily denied.… .In effect, that determination precluded defendant and her counsel an opportunity to refute the accuracy of the officer’s statements in the PSR that were relied upon by the court in finding that she had violated a condition of her plea by failing to answer the probation officer’s questions truthfully … . Moreover, County Court made no further inquiry as to whether defendant understood the questions asked during her Probation Department interview and whether she had answered them untruthfully or contrary to her statements at her plea proceedings … .

While a hearing is not necessarily required in all instances, the circumstances before us warranted some form of inquiry before County Court could impose an enhanced sentence … . People v Dibble, 2023 NY Slip Op 06411, Third Dept 12-14-23

Practice Point: When the judge, sua sponte, decided to enhance defendant’s agreed-upon sentence because of defendant’s responses to questions posed by probation for the presentence report, defense counsel immediately requested a hearing to address the issue (which had not been raised by the prosecution). The request was denied. The Third Department agreed that a hearing was required in this case and vacated the sentence.

 

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DEFENDANT PRESENTED SUFFICIENT SPECIFIC FACTS TO REBUT THE PRESUMPTION OF PROPER SERVICE OF THE SUMMONS AND COMPLAINT; A HEARING SHOULD HAVE BEEN HELD (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant Bloom was entitled to a hearing on whether she was served with the summons and complaint:

Here, the affidavit of the plaintiff’s process server indicated that the process server served Bloom at an address on Avenue W in Brooklyn (hereinafter the Avenue W address) by delivering a copy of the summons and complaint upon a cotenant, who was a person of suitable age and discretion, on May 4, 2019, and mailing a copy of the summons and complaint to Bloom at the Avenue W address on May 6, 2019. However, Bloom’s submission of a sworn statement in which she denied that she resided at the Avenue W address, and a copy of her driver license, which listed a different address as her residence at the time that service upon her was allegedly effectuated, contained specific facts to rebut the statements in the process server’s affidavit … . Therefore, the presumption of proper service upon Bloom was rebutted and the Supreme Court should have held a hearing to determine whether Bloom was properly served pursuant to CPLR 308(2) … . Garrick v Charles, 2023 NY Slip Op 06353, Second Dept 12-13-23

Practice Point: Here defendant presented specific facts sufficient to rebut the presumption of proper services of process. A hearing should have been ordered.

 

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DEFENDANT’S MOTION TO RENEW A MOTION FOR MORE TIME TO CONDUCT AN IME SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the motion to renew should have been granted and defendant should have been granted more time to conduct an independent medical examination (IME) of plaintiff:

“A motion for leave to renew or reargue is addressed to the sound discretion of the Supreme Court” … . A motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (CPLR 2221[d][2]). A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” … and “shall contain reasonable justification for the failure to present such facts on the prior motion” … . “A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought” … . …

The Supreme Court improvidently exercised its discretion in denying, without prejudice, that branch of the defendant’s motion which was for leave to renew. The defendant presented new facts and a reasonable justification for failing to present such facts on the prior motion, and demonstrated that the new evidence would have changed the prior determination … . Moreover, the papers submitted by the defendant in support of the motion, as supplemented by the papers submitted by the plaintiff, which expressly incorporated the plaintiff’s prior opposition, were sufficient to determine the motion …. Fulcher v Empire State Grand Council Ancient & Accepted Scottish Rite Masons, Inc., 2023 NY Slip Op 06352, Second Dept 12-13-24

Practice Point: The motion to renew presented new facts and a reasonable justification for failing to present those facts in the prior motion. The motion should have been granted.

 

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THE RECORD DOES NOT DEMONSTRATE DEFENDANT WAS AWARE HE COULD BE DEPORTED BASED UPON HIS GUILTY PLEAS, A VIOLATION OF DUE PROCESS; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL; MATTER REMITTED TO ALLOW DEFENDANT TO MOVE TO VACATE THE GUILTY PLEAS (SECOND DEPT).

The Second Department, remitting the matter, determined defendant was not warned about the possibility of deportation based upon his guilty pleas. The matter was sent back to allow defendant to move to vacate the pleas:

The defendant’s contention that his due process rights were violated due to the Supreme Court’s failure to warn him that his pleas could subject him to deportation is excepted from the requirement of preservation because the record does not demonstrate that the defendant was aware that he could be deported as a consequence of his pleas of guilty … . Indeed, here, the record shows that the court failed to address the possibility of deportation as a consequence of the defendant’s pleas of guilty … .

… [W]e remit the matters to the Supreme Court … to afford the defendant an opportunity to move to vacate his pleas of guilty and for a report by the Supreme Court thereafter … . Upon such motion, the defendant will have the burden of establishing that there is a “reasonable probability” that he would not have pleaded guilty had the court warned him of the possibility of deportation … . In its report to this Court, the Supreme Court shall set forth whether the defendant moved to vacate his pleas of guilty and, if so, its determination as to whether the defendant made the requisite showing or failed to make the requisite showing … . People v Jean, 2023 NY Slip Op 06380, Second Dept 12-13-23

Practice Point: If the record does not demonstrate a defendant was aware of the deportation consequences of a guilty plea, the matter will be remitted to give the defendant the opportunity to move to vacate the plea. The issue need not be preserved for appeal.

 

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THE PATIENT IN A PSYCHIATRIC FACILITY DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVE HER RIGHT TO COUNSEL IN THIS PROCEEDING TO PROVIDE TREATMENT WITHOUT HER CONSENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Susan K., a psychiatric patient, did not voluntarily waiver her right to counsel in this proceeding to provide treatment without her consent:

… [T]he petitioner commenced this proceeding for permission to administer electro-convulsive therapy and various proposed psychotropic drugs to Susan K., a patient at a psychiatric facility, without her consent. Following a hearing, at which the Supreme Court permitted Susan K. to proceed pro se, the court issued an order authorizing the petitioner to administer the proposed course of treatment over Susan K.’s objection. Susan K. appeals. * * *

Supreme Court did not discuss with Susan K. the dangers and disadvantages of proceeding pro se, did not apprise Susan K. “of the ‘importance of the lawyer in the adversarial system of adjudication,'” and did not elicit an acknowledgment that Susan K. understood the perils of self-representation … . Because the court failed to conduct a sufficiently searching inquiry of Susan K. to ensure that her waiver of the right to counsel was made knowingly, intelligently, and voluntarily, we must reverse the order and remit the matter to the Supreme Court … for a new hearing and a new determination after proper advisements and inquiry into Susan K.’s understanding of the consequences of self-representation. Matter of Susan K. (Hamilton), 2023 NY Slip Op 06369, Second Dept 12-13-23

Practice Point: Here a psychiatric patient represented herself in a proceeding seeking to provide treatment without her consent. The judge did not make sure the patient understood the dangers of self-representation. Matter remitted.

 

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