Criminal Law Update February 2019

Criminal Law Update February 2019

Course #CRM0339 (Transitional and Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Hybrid Accreditation for February 27, 2020, through February 26, 2021

This Course Is Appropriate for Newly Admitted and/or Experienced Attorneys

Areas of Professional Practice: 0.5 CLE Credit Hour

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

This course organizes summaries of decisions by the New York State appellate courts (Appellate Division and Court of Appeals) released between February 1, 2019 and February 28, 2019 which address issues in “Criminal Law.” Similar CLE courses are continuously being submitted for approval to the NYS CLE Board for each month from January 2019 to the present, to provide readers with CLE credit simply for keeping up to date with the latest appellate decisions.  Each monthly CLE course will be posted on the New York Appellate Digest website as it is approved by the NYS CLE Board.

The “Criminal Law” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly “Update Pamphlets” which are accessed in the “Update Service.” The monthly “Update Pamphlets” posted in the “Update Service” comprise the written materials for each of these monthly 1/2-to-1-credit-hour CLE courses.

As you listen to the course, you will hear a verification code. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification code, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey.” Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will then email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 0.5 credit-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the links below for the written materials (“Criminal Law Update Pamphlet February 2019”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

Criminal Law Update Pamphlet February 2019

Criminal Law Update February 2019 Attorney Affirmation

Criminal Law Update February 2019 Evaluation Form

Topics Covered in the “Criminal Law Update February 2019” Course Are Described Below (the podcast does not address every case in the written materials); Page Numbers Refer to the Written Materials, i.e., the “Criminal Law Update Pamphlet February 2019”

APPEALS, ATTORNEYS.

FAILURE TO IDENTIFY AN APPEALABLE ISSUE IN AN ANDERS BRIEF ARGUING THAT THERE ARE NO NONFRIVOLOUS ISSUES WARRANTING APPEAL DOES NOT NECESSARILY REQUIRE THE ASSIGNMENT OF NEW APPELLATE COUNSEL, HERE THE MISSING ISSUE WAS DEEMED INCONSEQUENTIAL AND THEREFORE THERE WAS NO NEED FOR ANOTHER ASSESSMENT BY ANOTHER ATTORNEY (SECOND DEPT). 5

ATTORNEYS, MISTRIAL.

WHETHER TO MOVE FOR A MISTRIAL IS A DECISION FOR DEFENSE COUNSEL, NOT DEFENDANT, THE JUDGE’S ALLOWING DEFENDANT TO DECIDE VIOLATED THE SIXTH AMENDMENT RIGHT TO COUNSEL (FOURTH DEPT). 6

ATTORNEYS, INEFFECTIVE ASSISTANCE.

DEFENSE COUNSEL’S INTRODUCING INTO EVIDENCE A SEARCH WARRANT APPLICATION WHICH IMPLICATED THE DEFENDANT IN CRIMES CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL (THIRD DEPT). 6

ATTORNEYS, JUDGES.

FAILURE TO GRANT AN ADJOURNMENT TO ALLOW DEFENSE COUNSEL, WHO HAD BEEN ACTING IN A LIMITED ADVISORY CAPACITY, TO ADEQUATELY PREPARE FOR A SUPPRESSION HEARING DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL, NEW SUPPRESSION HEARING ORDERED, APPEAL HELD IN ABEYANCE (SECOND DEPT). 7

CONTEMPT.

MOTION TO PURGE THE CONTEMPT ORDER REGARDING THE REMOVAL OF SOLID WASTE THAT HAD BEEN DUMPED ON A FIELD BY DEFENDANTS SHOULD HAVE BEEN GRANTED AND THE INCARCERATED DEFENDANT SHOULD BE RELEASED (THIRD DEPT). 8

GUILTY PLEAS, DEPORTATION, JUDGES.

DEFENDANT WAS NOT INFORMED OF THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MATTER REMITTED TO ALLOW A MOTION TO VACATE THE PLEA (SECOND DEPT). 9

IDENTIFICATION, HEARSAY.

DETECTIVE’S TESTIMONY DEMONSTRATED THE WITNESS’S IDENTIFICATION OF DEFENDANT WAS CONFIRMATORY, HEARSAY IS ADMISSIBLE AT A RODRIGUEZ HEARING (FIRST DEPT). 9

IDENTIFICATION.

POLICE OFFICER WAS PROPERLY ALLOWED TO IDENTIFY DEFENDANTS AS THE PERSONS DEPICTED IN VIDEOTAPES (FIRST DEPT). 10

INDICTMENTS, JURISDICTIONALLY DEFECTIVE.

PEOPLE’S FAILURE TO PROCURE ANOTHER ACCUSATORY INSTRUMENT AFTER THE COURT REDUCED THE CHARGE RENDERED THE INDICTMENT JURISDICTIONALLY DEFECTIVE, REQUIRING DISMISSAL AFTER TRIAL DESPITE DEFENDANT’S FAILURE TO RAISE THE ISSUE AND THE PRESENTATION OF SUFFICIENT EVIDENCE OF THE REDUCED CHARGE (THIRD DEPT). 11

JAIL PHONE CALLS. 12

MONITORING AND RECORDING PHONE CALLS MADE BY PRETRIAL DETAINEES WHO ARE NOTIFIED THE CALLS ARE MONITORED AND RECORDED DOES NOT VIOLATE THE FOURTH AMENDMENT, THE RECORDINGS MAY BE SHARED WITH LAW ENFORCEMENT AND PROSECUTORS WITHOUT A WARRANT (CT APP). 12

JURY INSRUCTIONS, JUSTIFICATION DEFENSE.

TRIAL COURT FAILED TO INSTRUCT THE JURY THAT FINDING DEFENDANT NOT GUILTY OF THE TOP COUNT BASED ON THE JUSTIFICATION DEFENSE PRECLUDED CONSIDERATION OF THE LESSER COUNTS, NEW TRIAL REQUIRED (SECOND DEPT). 13

JURY INSTRUCTIONS, ACCESSORIAL LIABILITY, PHOTOGRAPHS.

PHOTOGRAPH OF DEFENDANT WITH A WEAPON PROPERLY ADMITTED DESPITE THE ABSENCE OF EVIDENCE THE DEPICTED WEAPON WAS USED IN THE CHARGED OFFENSE, JURY WAS PROPERLY INSTRUCTED ON ACCESSORIAL LIABILITY DESPITE THE ABSENCE OF AN ALLEGATION OF ACCESSORIAL LIABILITY IN THE INDICTMENT AND DESPITE THE PEOPLE’S THEORY THAT DEFENDANT WAS THE SHOOTER (FIRST DEPT). 14

JURY INSTRUCTIONS, ADVERSE INFERENCE.

DEFENDANT ENTITLED TO PERMISSIVE ADVERSE INFERENCE JURY INSTRUCTION BASED UPON THE PEOPLE’S LOSS OR DESTRUCTION OF EVIDENCE REQUESTED BY THE DEFENDANT (SECOND DEPT). 15

JURY INSTRUCTIONS, JUSTIFICATION DEFENSE.

DEFENDANT WAS ENTITLED TO A JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE IN THIS ASSAULT CASE, EVEN THOUGH THE DEFENDANT DENIED ASSAULTING THE VICTIM AT TRIAL (FOURTH DEPT). 16

JURY INSTRUCTIONS, LESSER INCLUDED OFFENSES.

THE JURY SHOULD HAVE BEEN INSTRUCTED NOT TO CONSIDER LESSER INCLUDED OFFENSES IF THEY FOUND DEFENDANT NOT GUILTY OF THE HIGHER OFFENSE ON THE BASIS OF JUSTIFICATION, NEW TRIAL ORDERED (SECOND DEPT). 17

JURY INSTRUCTIONS, LESSER INCLUDED OFFENSES, ASSAULT 3RD.

TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURY ON ASSAULT THIRD AS A LESSER INCLUDED OFFENSE, TWO-JUSTICE DISSENT (FOURTH DEPT). 17

JURY SELECTION, BATSON.

PROSECUTION’S REVERSE-BATSON CHALLENGE TO PEREMPTORY JUROR CHALLENGES BY THE DEFENSE SHOULD NOT HAVE BEEN GRANTED, CONVICTION REVERSED (FIRST DEPT). 18

JUVENILE DELINQUENCY, JUDGES.

FAMILY COURT ABUSED ITS DISCRETION BY DENYING THE APPLICATION FOR AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL IN THIS JUVENILE DELINQUENCY PROCEEDING (SECOND DEPT). 18

MENTAL HYGIENE LAW, SEALING.

COURT RECORDS RELATED TO PROCEEDINGS FOR THE COMMITMENT AND RETENTION OF DANGEROUS MENTALLY ILL ACQUITTEES ARE NOT CLINICAL RECORDS AND THEREFORE ARE NOT SUBJECT TO THE AUTOMATIC SEALING REQUIREMENT IN THE MENTAL HYGIENE LAW (CT APP). 19

MERGER, KIDNAPPING.

DEFENDANT’S KIDNAPPING CONVICTIONS VACATED PURSUANT TO THE DOCTRINE OF MERGER, DEFENDANT WAS ALSO CONVICTED OF MURDER, BURGLARY AND ROBBERY, APPEAL CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT). 20

ORDERS OF PROTECTION.

ORDER OF PROTECTION ISSUED IN THE CRIMINAL PROCEEDING PROHIBITING CONTACT BETWEEN FATHER AND DAUGHTER SHOULD BE SUBJECT TO ANY SUBSEQUENT CUSTODY OR VISITATION ORDERS BY FAMILY OR SUPREME COURT (FOURTH DEPT). 21

SENTENCING, ATTORNEYS, JUDGES, APPEALS.

WAIVER OF APPEAL DID NOT PRECLUDE CONSIDERATION OF AN ISSUE WHICH AROSE AFTER THE WAIVER, AT SENTENCING ALL WERE UNDER THE MISCONCEPTION DEFENDANT WAS A SECOND FELONY OFFENDER, SENTENCING JUDGE HAD SINCE BECOME THE PUBLIC DEFENDER, THE PUBLIC DEFENDER’S OFFICE COULD NOT, THEREFORE, REPRESENT DEFENDANT (THIRD DEPT). 21

SENTENCING, PREDICATE FELONY STATUS.

WHERE A DEFENDANT HAS BEEN RESENTENCED BECAUSE THE ORIGINAL SENTENCE WAS ILLEGAL, THE DATE OF THE ORIGINAL SENTENCE CONTROLS FOR DETERMINATION OF PREDICATE FELONY STATUS (CT APP). 22

SEX OFFENDER REGISTRATION ACT (SORA).

NO SHOWING THAT POST TRAUMATIC STRESS DISORDER OR A TRAUMATIC BRAIN INJURY INCREASED THE RISK OF REOFFENSE, APPELLATE DIVISION EXERCISED ITS OWN DISCRETION AND REDUCED DEFENDANT’S RISK LEVEL FROM TWO TO ONE (FOURTH DEPT). 23

SEX OFFENDER REGISTRATION ACT (SORA).

SCHOOL-GROUNDS RESTRICTION APPLIES ONLY TO OFFENDERS SERVING A SENTENCE FOR ONE OF THE OFFENSES ENUMERATED IN THE EXECUTIVE LAW AT THE TIME OF RELEASE, SINCE PETITIONER, WHO WAS A LEVEL THREE SEX OFFENDER, WAS SERVING A SENTENCE FOR BURGLARY AT THE TIME OF RELEASE, THE SCHOOL-GROUNDS RESTRICTION DID NOT APPLY TO HIM (THIRD DEPT). 24

SEX OFFENDER REGISTRATION ACT (SORA), STATUORY RAPE.

SORA COURT MAY HAVE OVERASSESSED THE RISK IN A STATUTORY RAPE CASE, MATTER REMITTED FOR PROPER APPLICATION OF THE CRITERIA ANNOUNCED BY THE COURT OF APPEALS IN PEOPLE V GILLOTTI (FIRST DEPT). 25

STATUTES, ADMINISTRATIVE CODE, AMMUNITION.

THE EXCLUSIONARY LANGUAGE IN THE NYC ADMINISTRATIVE CODE PROVISION WHICH CRIMINALIZES POSSESSION OF AMMUNITION IS AN EXCEPTION THAT MUST BE AFFIRMATIVELY PLED, CONVICTION REVERSED (FIRST DEPT). 26

TESTIMONIAL HEARSAY, DNA.

IT WAS (HARMLESS) ERROR TO ADMIT TESTIMONY OF THE PEOPLE’S DNA EXPERT, THE TESTIMONIAL HEARSAY VIOLATED DEFENDANT’S RIGHT TO CONFRONTATION (SECOND DEPT). 27

WAIVER OF INDICTMENT, JURISDICTIONALLY DEFECTIVE.

THE WAIVER OF INDICTMENT WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE THE APPROXIMATE TIME AND PLACE OF THE OFFENSES, THIS IS A MODE OF PROCEEDINGS ERROR, PLEA TO THE SUPERIOR COURT INFORMATION VACATED (FOURTH DEPT). 27

YOUTHFUL OFFENDERS, JUDGES.

DENIAL OF YOUTHFUL OFFENDER STATUS WAS AN ABUSE OF DISCRETION (SECOND DEPT). 28

YOUTHFUL OFFENDERS, JUDGES.

SENTENCING COURT MUST CONSIDER YOUTHFUL OFFENDER STATUS EVEN WHERE IT IS NOT REQUESTED OR WHERE DEFENDANT AGREES TO FORGO IT AS PART OF A PLEA BARGAIN (SECOND DEPT). 29