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APPELLANT, 16, IN THIS JUVENILE DELINQUENY PROCEEDING, WAS BEING INTERROGATED ABOUT A ROBBERY WHEN HE DRANK WATER FROM A DISPOSABLE CUP; THE INTERROGATING OFFICER SENT THE CUP FOR DNA ANALYSIS; THERE WAS NO INVESTIGATORY PURPOSE FOR THE DNA COLLECTION; APPELLANT’S MOTION TO EXPUNGE THE DNA EVIDENCE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mendez, over a dissent, reversing Family Court, determined appellant’s motion to expunge all DNA evidence collected from him in this juvenile delinquency proceeding should have been granted. When appellant,16, was being interrogated by the police about a robbery, he was given a disposable cup from which he drank water. The cup was then sent by the interrogating officer for DNA analysis. No DNA had been collected from the robbery scene, so there was no investigatory purpose for collection of appellant’s DNA:

A juvenile delinquency adjudication, just as a youthful offender adjudication, is not a criminal conviction and a juvenile delinquent should not be denominated a criminal by reason of such adjudication … . A juvenile delinquent is not and should not be afforded fewer adjudication protections than a youthful offender or an adult in the equivalent circumstances … . Family Court, therefore, has the discretion to order the expungement of appellant’s DNA and any other documents related to the testing of his DNA sample. * * *

It has not been established that appellant purposefully divested himself of the cup or his DNA, thereby relinquishing his expectation of privacy. Nor has it been established that he waived, impliedly or explicitly, his constitutional rights to that expectation. * * *

DNA evidence obtained after an arrest should be material and relevant and should have a link to the charges for which the individual is arrested. There must be an articulable basis to obtain this DNA evidence and a correlation to the investigation or prosecution of the charged offense. That articulable basis to obtain appellant’s DNA is lacking here. * * *

Under the totality of the circumstances, maintaining appellant’s DNA profile in OCME’s database in perpetuity is completely incompatible with the statutory goal and would result in a substantial injustice to the appellant. Matter of Francis O., 2022 NY Slip Op 03969, First Dept 6-16-22.

Practice Point: Here the appellant was 16 when he was interrogated by the police. He drank water from a paper cup. The interrogating officer sent the cup for DNA analysis. There was no investigative purpose for the DNA collection. The appellant did not abandon the cup and did not waive his privacy interest in it. His constitutional rights were therefore violated by the collection of his DNA and he was entitled to expungement of the DNA evidence.

 

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IN ORDER TO DIRECT A DEFENDANT TO INSTALL AN IGNITION INTERLOCK DEVICE, THE DEFENDANT MUST BE SENTENCED TO A PERIOD OF PROBATION OR A CONDITIONAL DISCHARGE (SECOND DEPT).

The Second Department, reversing County Court, determined defendant could not be directed to install an ignition interlock device in the absence of a sentence to probation or a conditional discharge. Matter remitted for resentencing:

Vehicle and Traffic Law § 1193(1)(b)(ii) provides that the court shall “sentence such person convicted of . . . a violation of [Vehicle and Traffic Law § 1192(2), (2-a), or (3)] to a term of probation or conditional discharge, as a condition of which it shall order such person to install and maintain, in accordance with the provisions of [Vehicle and Traffic Law § 1198], an ignition interlock device in any motor vehicle owned or operated by such person.”

In directing the defendant to install and maintain a functioning ignition interlock device, the County Court failed to also impose a sentence of probation or conditional discharge and therefore failed to comply with the requirements of the statute … . People v Dancy, 2022 NY Slip Op 03904, Second Dept 6-15-22

Practice Point: The Vehicle and Traffic Law requires that the direction to install an ignition interlock device be part of a sentence to a period of probation or a conditional discharge.

 

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MOTHER FAILED TO APPEAR IN THE PROCEEDING TO DETERMINE FATHER’S PETITION FOR MODIFICATION OF CUSTODY; THE PETITION WAS GRANTED; BUT NO EVIDENCE WAS PRESENTED ON WHETHER MODIFICATION WAS IN THE BEST INTERESTS OF THE CHILDREN; MOTHER’S MOTION TO VACATE THE ORDER GRANTING FATHER’S PETITION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined the judge should not have granted father’s petition for a modification of custody upon mother’s failure to appear. No evidence was taken on whether modification was in the best interests of the children. Mother’s motion to vacate the order should have been granted:

“A custody determination, whether made upon the default of a party or not, must always have a sound and substantial basis in the record” … .

… Family Court … granted the father’s oral application and modified the order of custody and visitation … , so as to grant the father relief which far exceeded that requested in his petition, without first receiving any testimony or other admissible evidence in the matter upon which it could determine whether modification was required to protect the best interests of the children. Under these circumstances, and in light of the policy favoring resolutions on the merits in child custody proceedings, the court improvidently exercised its discretion in denying the mother’s motion to vacate the final order of custody and visitation … . Matter of Hogan v Smith, 2022 NY Slip Op 03894, Second Dept 6-15-22

Practice Point: Even when mother fails to appear in the proceeding to determine father’s petition for modification of custody, the petition should not be granted in the absence of evidence modification in in the best interests of the children.

 

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AFTER THE TRIAL HAD BEGUN AND WITNESSES HAD TESTIFIED, THE JUDGE BECAME ILL AND SOUGHT A COVID TEST; AFTER THE NEGATIVE TEST-RESULT, THE JUDGE, SUA SPONTE, WITHOUT DEFENDANT’S CONSENT, DECLARED A MISTRIAL; THE JUDGE’S FAILURE TO CONSIDER A CONTINUANCE OR THE SUBSTITUTION OF ANOTHER JUDGE WAS AN ABUSE OF DISCRETION; THE DOUBLE-JEOPARDY PROHIBITION PRECLUDED RETRIAL (FOURTH DEPT).

The Fourth Department granted defendant’s petition for a writ of prohibition barring retrial on the ground of double jeopardy. A jury was selected and three witnesses had testified when the trial judge became ill and scheduled a COVID test (which came back negative). The judge ultimately, sua sponte, declared a mistrial without defendant’s consent. Because there were alternatives to a mistrial, a continuance, for example, the double-jeopardy prohibition precluded retrial:

… [T]here was no manifest necessity for the mistrial, and the court therefore abused its discretion in granting it sua sponte … . The record establishes that the court did not consider the alternatives to a mistrial, such as a continuance … or substitution of another judge … . “[I]f the judge acts so abruptly as to not permit consideration of the alternatives . . . or otherwise acts irrationally or irresponsibly . . . or solely for convenience of the court and jury . . . , retrial will be barred” … . “The court has the duty to consider alternatives to a mistrial and to obtain enough information so that it is clear that a mistrial is actually necessary” … . Matter of McNair v McNamara, 2022 NY Slip Op 03825, Fourth Dept 6-9-22

Practice Point: Here the judge became ill after the trial had begun and declared a mistrial without defendant’s consent and without considering a continuance or the substitution of another judge. There was no manifest necessity for the mistrial. The double-jeopardy prohibition therefore precluded retrial.

 

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AN INQUIRY MADE BY THE COURT CLERK OF PROSPECTIVE JURORS ABOUT WHETHER THEY COULD SERVE IN THIS SEXUAL-ASSAULT-OF-A-CHILD CASE DID NOT AMOUNT TO AN IMPROPER DELEGATION OF JUDICIAL AUTHORITY; THERE WAS NO MODE OF PROCEEDINGS ERROR (FIRST DEPT). ​

The First Department determined the judge did not improperly delegate judicial authority to the court clerk who made a preliminary inquiry of a group of prospective jurors:

Defendant was charged with committing sex crimes against his girlfriend’s six-year-old daughter. The evidence included two videos, taken with defendant’s phone, showing defendant having sexual intercourse with the child. On the first day of jury selection, to identify and dismiss prospective jurors who could not be fair and impartial in light of the nature of the charges and the graphic evidence, the court addressed the approximately 200 prospective jurors in groups of approximately 50. The court told each group about the charges and described the video evidence. All panelists who stated that they could not be fair and impartial in light of these circumstances were excused.

When jury selection continued two days later, 92 panelists remained. Because of the size of the group, they were placed in an assembly room down the hall from the courtroom and in the courtroom next door. The court informed the parties that some of the remaining panelists had approached court officers, stating that they had “thought about it” and now believed they could not serve as jurors. The court proposed sending the court clerk to each of the rooms where the jurors were waiting “to ask generally the question of since Tuesday is there anybody who in thinking about the judge’s questions believe they can’t serve on the case.” Any prospective jurors who answered in the affirmative would be brought into the courtroom for further questioning by the court. Defense counsel consented to this procedure.

Upon returning to the courtroom, the clerk reported that there were 10 prospective jurors who had “an issue.” The 10 panelists were brought to the courtroom, where the court inquired whether, based on “the nature of the case [and] the kind of evidence you will be seeing during the course of this trial,” the panelists now thought they could not be fair and impartial. People v Ocampo, 2022 NY Slip Op 03803, First Dept 6-9-22

Practice Point: Here defense counsel consented to the court clerk’s asking prospective jurors whether they could serve in this sexual-assault-of-a-child case. The inquiry was not an improper delegation of judicial authority. There was no mode of proceedings error (which would have required reversal on appeal even though the issue was not preserved).

 

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FATHER’S PETITION FOR A MODIFICATION OF CUSTODY SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the court should have held a hearing on father’s petition for a modification of custody:

… [T]he father alleged … that, since the prior order, he has relocated to a small, quiet apartment but now has a lengthy commute each way to exercise his parenting time, the child wishes to spend more time with him and the prior order provides him with a limited amount of a parenting time when considering the progress he has made to care for the child. Family Court sua sponte dismissed the father’s petition without prejudice, finding that the father failed to allege a sufficient change in circumstances. The father appeals.

Family Court erred in dismissing the petition without holding a hearing. “A parent seeking to modify a prior order of custody and visitation is required to demonstrate that a change in circumstances has occurred since entry thereof that then warrants the court engaging in an analysis as to the best interests of the child” … . “While not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing” … , “[g]enerally, where a facially sufficient petition has been filed, modification of a Family Ct Act article 6 custody order requires a full and comprehensive hearing at which a parent is to be afforded a full and fair opportunity to be heard” … . Matter of Neil VV. v Joanne WW., 2022 NY Slip Op 03557, Third Dept 6-2-22

Practice Point: Where, as here, a facially sufficient petition for a modification of custody had been filed, petitioner is entitled to a hearing.

 

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DEFENDANT’S PLEA COLLOQUY NEGATED AN ESSENTIAL ELEMENT (JURAT) OF HIS PERJURY CONVICTIONS; PLEA VACATED (THIRD DEPT).

The Third Department, vacating the plea to perjury, determined defendant’s plea colloquy negated an essential element of the crime:

… [W]e conclude that defendant is entitled to challenge the plea because he made statements during the colloquy that negated an essential element of the crime … . “A person is guilty of perjury in the third degree when he [or she] swears falsely” … . “A person ‘swears falsely’ when he [or she] intentionally makes a false statement which he [or she] does not believe to be true . . . under oath in a subscribed written instrument” … . An “‘[o]ath’ includes an affirmation and every other mode authorized by law of attesting to the truth of that which is stated” … . The document in question was captioned as an “Affidavit of Financial Information.” The preamble begins with the representation that defendant, “being duly sworn, deposes and says the following under penalty of perjury.” The following statement is included above defendant’s signature: “I have carefully read the foregoing statements contained in this Affidavit of Financial Information. They are true and correct.” The document includes defendant’s signature and a jurat completed by defendant’s attorney in July 2017 … . The same is true for the amended affidavit signed in August 2017.

During the plea allocution, defendant explained that he received the affidavit from his attorney by e-mail “and then [he] filled it out on e-mail as well and sent it right back to him.” No statement was made that the attorney actually administered an oath to defendant before he signed the affidavits. Given defendant’s limited explanation of the affidavit sequence, County Court was obligated to further inquire as to the oath element before accepting the plea … . People v Marone, 2022 NY Slip Op 03543, Third Dept 6-2-22

Practice Point: Here the defendant’s plea colloquy negated an essential element of the crime. The judge should have inquired further before accepting the plea. Plea vacated.

 

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THE JUDGE’S LAW CLERK WAS THE DISTRICT ATTORNEY WHO PROSECUTED DEFENDANT; THE JUDGE SHOULD NOT HAVE DECIDED DEFENDANT’S MOTION TO VACATE HIS CONVICTION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant’s motion to vacate his conviction should not have been considered by the judge whose law clerk was the District Attorney at the time of defendant’s conviction:

As one of the grounds raised in his CPL article 440 motion, defendant argued that he was deprived of his right to appear before the grand jury due to the actions of the District Attorney. The parties do not dispute that, at the time that defendant’s CPL article 440 motion was decided, the judge’s law clerk was the former District Attorney who had prosecuted defendant. That said, defendant contends that the judge should have recused himself from deciding defendant’s motion. We agree. “Not only must judges actually be neutral, they must appear so as well” … . In view of the law clerk’s direct involvement in defendant’s case during her tenure as the District Attorney and the allegations made in the CPL article 440 motion about her conduct while she was prosecuting him, as well as taking into account the need to maintain the appearance of impartiality, it was an improvident exercise of discretion for the judge to decide defendant’s motion … . People v Roshia, 2022 NY Slip Op 03546, Third Dept 6-2-22

Practice Point: The judge should not have decided defendant’s motion to vacate his conviction because the judge’s law clerk was the DA who prosecuted defendant.

 

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THE JURY WAS NOT INSTRUCTED TO STOP DELIBERATIONS IF IT FOUND THE JUSTIFICATION DEFENSE APPLIED TO THE TOP COUNT (MURDER); DEFENDANT’S MANSLAUGHTER CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THE ISSUE WAS NOT PRESERVED) (THIRD DEPT).

The Third Department, reversing defendant’s manslaughter conviction in the interest of justice, determined the jury instruction on the justification defense was flawed. The instruction did not explain that if the justification defense was the basis for acquittal on the top count (murder here) the jury must not consider the lesser counts:

… Supreme Court inadequately charged the jury regarding his justification defense. Although this issue is unpreserved inasmuch as defendant failed to raise it during the charge conference and did not object to the final charge … , we nevertheless find it appropriate to exercise our interest of justice jurisdiction to take corrective action and reverse defendant’s conviction … .

Where … a defendant raises a claim of self-defense, the trial court commits reversible error if it fails to “instruct the jury that, if it finds the defendant not guilty of a greater charge on the basis of justification, it is not to consider any lesser counts” … . This error was compounded by the verdict sheet, which directed the jury to consider manslaughter in the first degree if the jury found defendant not guilty of murder in the second degree; the verdict sheet did not contain a qualifier if the acquittal of murder was based on the defense of justification … . Even though … “the jury may have acquitted on the top charge[] without relying on defendant’s justification defense, it is nevertheless impossible to discern whether acquittal of the top count[] was based on the jury’s finding of justification so as to mandate acquittal on the lesser count[] to which justification also applied” … .People v Harris, 2022 NY Slip Op 03548, Third Dept 6-2-22

Practice Point: If the justification defense is to be considered by the jury, the jury must be instructed to stop any further deliberations (re: the lesser counts) if the justification defense is deemed to apply to the top count. Here the issue was not preserved by an objection to the jury instruction, but the Third Department reversed in the interest of justice.

 

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THE SENTENCING JUDGE DID NOT SEPARATELY PRONOUNCE A SENTENCE FOR EACH CONVICTION; MATTER REMITTED (THIRD DEPT).

The Third Department, remitting the matter for resentencing, noted the sentencing judge did not pronounce sentence separately for the two counts:

… [W]e are …  obliged to remit for resentencing. The sentencing transcript reflects that County Court imposed a single sentence upon defendant and “failed to pronounce sentence separately on each of the two counts [of] which [she was convicted], as required by CPL 380.20” … . As a result, the matter must be remitted so that County Court can pronounce sentence on each count … . People v Robbins, 2022 NY Slip Op 03549, Third Dept 6-2-22

Practice Point: A sentencing judge must pronounce a sentence separately for each conviction.

 

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