Criminal Law Update June 2019

Criminal Law Update June 2019

Course #CRM0354 (Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Hybrid Accreditation for September 2, 2020, through December 31, 2021

This Course Is Appropriate for Experienced Attorneys

Areas of Professional Practice: 2 CLE Credit Hours

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 June 1, 2019 and June 30, 2019 which address issues in “Criminal Law.” Similar 1/2-to 1-hour 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.

The “Criminal Law” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly pamphlets which are accessed in the “Update Service.” The monthly pamphlets comprise the written materials for these monthly CLE courses. A link to the written materials for this course (“Criminal Law Update Pamphlet June 2019”) is provided below.

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” (the CLE Board requires that I collect and preserve the Evaluation Surveys). Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 2 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 June 2019”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

The media player for this course is at the bottom of the page.

Criminal Law Update Pamphlet June 2019

Criminal Law Update June 2019 Attorney Affirmation

Criminal Law Update June 2019 Evaluation Survey

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

APPEALS.

CONVICTION AFFIRMED, THREE-JUDGE DISSENT ARGUED THE APPELLATE DIVISION EXCEEDED ITS AUTHORITY BY AFFIRMING ON A SEARCH-RELATED GROUND THAT WAS NOT RULED ON BY SUPREME COURT (CT APP). 11

APPEALS.

APPEAL OF THE STATUTORY SPEEDY TRIAL ISSUE FORECLOSED BY THE GUILTY PLEA AND THE WAIVER OF APPEAL; THE STATEMENT-SUPPRESSION ISSUE FORECLOSED BY THE WAIVER OF APPEAL; THE CONSTITUTIONAL SPEEDY TRIAL ISSUE WAS ABANDONED (FOURTH DEPT). 11

APPEALS, LEGAL SUFFICIENCY, GRAND JURY.

COUNTY COURT’S DETERMINATION THE EVIDENCE BEFORE THE GRAND JURY WAS LEGALLY SUFFICIENT IS NOT REVIEWABLE AFTER A CONVICTION BASED UPON LEGALLY SUFFICIENT EVIDENCE (FOURTH DEPT). 12

ARREST, BENCH WARRANT, SPEEDY TRIAL.

THE FACT THAT THE BENCH WARRANT WAS BASED UPON A CHARGE FOR WHICH THE STATUTORY SPEEDY TRIAL PERIOD HAD EXPIRED DID NOT INVALIDATE THE EXECUTION OF THE WARRANT AND THE RESULTING ARREST FOR RESISTING ARREST (FOURTH DEPT). 12

ARTICLE 78, DIRECT APPEAL IS THE REMEDY.

COUNTY COURT DENIED PETITIONER’S MOTION TO DISMISS AN INDICTMENT ON THE GROUND THE PEOPLE HAD LEGALLY SUFFICIENT EVIDENCE TO SUPPORT THE INDICTMENT AT THE TIME HE PLED GUILTY TO A PRIOR INDICTMENT (CPL 40.40); PETITIONER’S REMEDY IS DIRECT APPEAL, NOT THE INSTANT ARTICLE 78 PETITION SEEKING PROHIBITION OR MANDAMUS (THIRD DEPT). 13

ATTORNEYS, CONFLICT OF INTEREST.

PUBLIC DEFENDER’S OFFICE REPRESENTED DEFENDANT AND THE CONFIDENTIAL INFORMANT, CONVICTION REVERSED (THIRD DEPT). 14

ATTORNEYS, RIGHT TO COUNSEL, STATEMENT.

DEFENDANT’S STATEMENT TO HIS MOTHER, ON THE PHONE, ABOUT NEEDING THE ASSISTANCE OF AN ATTORNEY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, ERROR WAS HARMLESS HOWEVER (SECOND DEPT). 14

ATTORNEYS, INEFFECTIVE ASSISTANCE, DEPORATION.

DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INFORM DEFENDANT THE AGGRAVATED FELONY TO WHICH DEFENDANT PLED GUILTY SUBJECTED HIM TO MANDATORY DEPORTATION, APPEAL HELD IN ABEYANCE TO ALLOW DEFENDANT TO MOVE TO VACATE HIS PLEA (FIRST DEPT). 15

ATTORNEYS, INEFFECTIVE ASSISTANCE, DNA.

THE RECORD WAS INSUFFICIENT TO ALLOW THE CONCLUSION THAT DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, A POST-TRIAL EVIDENTIARY PROCEEDING MIGHT ANSWER THE QUESTIONS LEFT OPEN BY THE TRIAL RECORD; ANY ERROR IN ADMITTING DNA EVIDENCE WHERE CONSENT, NOT IDENTITY, IS THE ISSUE IS HARMLESS (CT APP). 16

ATTORNEYS, INEFFECTIVE ASSISTANCE.

DEFENSE COUNSEL SUCCESSFULLY PURSUED A MISIDENTIFICATION DEFENSE THROUGHOUT THE TRIAL BUT CONCEDED THE ISSUE IN SUMMATION, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL; A WITNESS MAY IDENTIFY THE DEFENDANT AT TRIAL DESPITE A PROCEDURALLY-DEFECTIVE PRE-TRIAL IDENTIFICATION (SECOND DEPT). 17

ATTORNEYS, RIGHT TO COUNSEL, INEFFECTIVE ASSISTANCE.

DEFENDANT COMPLAINED THAT HIS ATTORNEY HAD NOT FILED OMNIBUS MOTIONS BUT DEFENSE COUNSEL SAID HE HAD FILED THEM AND THE COURT SAID IT HAD RECEIVED THEM; IN FACT, HOWEVER NO MOTIONS HAD BEEN FILED; DEFENDANT’S COMPLAINTS ABOUT HIS ASSIGNED COUNSEL WARRANTED FURTHER INQUIRY BY THE COURT; DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL, NEW TRIAL ORDERED (FOURTH DEPT). 18

ATTORNEYS, INEFFECTIVE ASSISTANCE, JUDGES.

THE JUDGE SHOULD HAVE ALLOWED DEFENDANT TO EXPLAIN HIS CLAIM THAT HE WAS RECEIVING INEFFECTIVE ASSISTANCE OF COUNSEL AND HIS REQUEST FOR NEW COUNSEL, PLEA VACATED (FOURTH DEPT). 19

ATTORNEYS, INEFFECTIVE ASSISTANCE.

THE COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER DEFENDANT WAS INFORMED BY DEFENSE COUNSEL OF A PLEA OFFER WHICH WAS MORE LENIENT THAN THE OFFER TO WHICH HE PLED (THIRD DEPT). 20

ATTORNEYS, CONFLICT OF INTEREST, INEFFECTIVE ASSISTANCE.

DEFENDANT WAS NOT ADEQUATELY INFORMED OF THE RISKS OF CONTINUING TO BE REPRESENTED BY DEFENSE COUNSEL IN THE PLEA PROCEEDINGS AFTER THE JUDGE AND DEFENSE COUNSEL WERE INFORMED DEFENSE COUNSEL’S FORMER AND CURRENT CLIENTS WOULD BE WITNESSES AT DEFENDANT’S TRIAL, DEFENDANT WAS THEREBY DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL (THIRD DEPT). 21

ATTORNEYS, PRO SE.

DEFENDANT’S REQUEST TO REPRESENT HIMSELF WAS PROPERLY DENIED AND THERE WAS SUPPORT IN THE RECORD FOR THE EXISTENCE OF PROBABLE CAUSE TO ARREST (CT APP). 21

ATTORNEYS, INTEGRITY OF GRAND JURY.

COUNTY COURT SHOULD NOT HAVE DETERMINED THE INTEGRITY OF THE GRAND JURY WAS COMPROMISED BY THE PROSECUTOR’S FAILURE TO INQUIRE FURTHER INTO THE POTENTIAL BIAS OF A GRAND JUROR, A TEACHER, WHO HAD TAUGHT THE DEFENDANT TEN YEARS BEFORE, INDICTMENT REINSTATED (THIRD DEPT). 22

ATTORNEYS, JURY NULLIFICATION, INEFFECTIVE ASSISTANCE.

IN THE FACE OF OVERWHELMING EVIDENCE, DEFENSE COUNSEL EFFECTIVELY CONCEDED GUILT AND URGED JURY NULLIFICATION ON THE BURGLARY CHARGE BECAUSE THERE WAS NO BREAK-IN AND THE STOLEN ITEMS WERE NOT WORTH MUCH, THE COURT OF APPEALS HELD THAT DEFENDANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL (CT APP). 23

ATTORNEYS , INEFFECTIVE ASSISTANCE, SPEEDY TRIAL.

DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, DEFENSE COUNSEL RELIED ON A CONSTITUTIONAL SPEEDY TRIAL ARGUMENT WHEN DEFENDANT WAS ENTITLED TO DISMISSAL OF THE INDICTMENT PURSUANT TO THE SPEEDY TRIAL STATUTE (FOURTH DEPT). 24

BRADY MATERIAL, SURVEILLANCE VIDEO.

SURVEILLANCE VIDEO CONSTITUTED BRADY MATERIAL WHICH COULD HAVE AFFECTED THE OUTCOME OF THE TRIAL, THE PROSECUTOR HAD SEEN THE VIDEO BUT TOLD THE JURY NO VIDEO EXISTED, CONVICTION REVERSED (CT APP). 25

BRADY MATERIAL.

ANY BRADY VIOLATIONS WERE NOT “MATERIAL” IN THAT THERE WAS NO REASONABLE POSSIBILITY THE EVIDENCE WOULD HAVE CHANGED THE JURY’S VERDICT, DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN GRANTED (CT APP). 26

CHARACTER EVIDENCE, NEGATIVE CHARACTER EVIDENCE.

THE NEGATIVE CHARACTER TESTIMONY WAS PROPERLY STRUCK, NOT BECAUSE SUCH EVIDENCE IS GENERALLY INADMISSIBLE, BUT BECAUSE THE WITNESS WAS ONLY FAMILIAR WITH THE DEFENDANT’S CHARACTER IN THE WORKPLACE, WHICH WAS NOT RELEVANT TO THE ALLEGED SEXUAL MISCONDUCT WITH A CHILD (SECOND DEPT). 27

CONSTRUCTIVE POSSESSION, NEW DEFINITION?.

DEFENDANT CONSTRUCTIVELY POSSESSED STOLEN PROPERTY FOUND IN THE BOILER ROOM OF A GARAGE WHERE DEFENDANT AND TWO OTHERS WERE HIDING FROM THE POLICE AFTER A MUGGING; VICTIM WAS PROPERLY ALLOWED TO IDENTIFY THE DEFENDANT IN COURT, DESPITE THE SUPPRESSION OF THE SHOWUP IDENTIFICATION (FIRST DEPT). 28

CORRECTION LAW, INTERNET IDENTIFIER, SEX OFFENDER.

A FACEBOOK ACCOUNT IS NOT AN ‘INTERNET IDENTIFIER’ WITHIN THE MEANING OF THE CORRECTION LAW, THEREFORE DEFENDANT SEX OFFENDER’S FAILURE TO DISCLOSE IT TO THE DIVISION OF CRIMINAL JUSTICE SERVICES IS NOT A CRIME (CT APP). 29

DOUBLE JEOPARDY.

BOTH THE FEDERAL AND STATE CONSTITUTIONS REQUIRE THE SAME BLOCKBURGER TEST FOR DOUBLE JEOPARDY (FOURTH DEPT). 29

DEPRAVED INDIFFERENCE, APPEALS.

2003 DEPRAVED INDIFFERENCE MURDER CONVICTION REVERSED, THE CASE WAS ON APPEAL WHEN THE COURT OF APPEALS DETERMINED AN INTENTIONAL MURDER OF A SINGLE VICTIM WITH A WEAPON DOES NOT MEET THE CRITERIA FOR DEPRAVED INDIFFERENCE MURDER (FOURTH DEPT). 30

FAMILY OFFENSES, APPEALS.

FAMILY OFFENSE OF HARASSMENT UPHELD, SEXUAL MISCONDUCT, ASSAULT SECOND AND CRIMINAL OBSTRUCTION OF BREATHING NOT SUPPORTED BY THE EVIDENCE (FIRST DEPT). 31

FAMILY OFFENSES, PETITION DEFICIENT.

THE FAMILY OFFENSE PETITION DID NOT ALLEGE ALL THE ELEMENTS OF HARASSMENT SECOND DEGREE AND WAS PROPERLY DISMISSED (FOURTH DEPT). 32

GRAND JURY TESTIMONY, INADMISSIBLE AT TRIAL, WITNESS CLAIMED LACK OF MEMORY.

IT WAS REVERSIBLE ERROR TO ADMIT A WITNESS’S GRAND JURY TESTIMONY, THE WITNESS’S CLAIM HE COULD NOT REMEMBER THE EVENTS WAS NOT SO DAMAGING TO THE PEOPLE’S CASE AS TO ALLOW THE GRAND JURY EVIDENCE FOR IMPEACHMENT PURPOSES (FIRST DEPT). 32

IDENTIFICATION, FAILURE TO IDENTIFY.

DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT HEARSAY EVIDENCE DEMONSTRATING ONE OF THE ROBBERY VICTIMS, WHO DID NOT TESTIFY, FAILED TO IDENTIFY THE DEFENDANT IN A LINEUP, CONVICTION REVERSED (FIRST DEPT). 33

IDENTIFICATION, TAINTED BY VIDEO SHOWN TO VICTIM.

THE ROBBERY VICTIM’S IDENTIFICATION OF DEFENDANT IN A PHOTO ARRAY AFTER THE POLICE HAD SHOWN THE ROBBERY VICTIM A CELL PHONE PHOTO DEPICTING THE DEFENDANT USING A TASER ON SOMEONE SHOULD HAVE BEEN SUPPRESSED, THE ROBBER HAD THREATENED THE VICTIM WITH A TASER (SECOND DEPT). 34

JURIES, HESITATION WHEN POLLED.

THE JUDGE PROPERLY HANDLED A JUROR’S HESITATION WHEN THE JURY WAS POLLED, THE JUROR WAS QUESTIONED BY THE JUDGE OUTSIDE THE PRESENCE OF THE JURY, THE JUDGE DETERMINED THE JUROR WAS NOT UNDER IMPROPER PRESSURE AND SENT THE JURY BACK FOR FURTHER DELIBERATIONS (SECOND DEPT). 35

JURY INSTRUCTIONS, LESSER INCLUDED OFFENSES.

ANY ERROR IN FAILING TO INSTRUCT THE JURY ON LESSER INCLUDED OFFENSES WAS HARMLESS BECAUSE DEFENDANT WAS CONVICTED OF THE TOP COUNT AND THE HIGHEST LESSER INCLUDED OFFENSE WAS AVAILABLE TO THE JURY (CT APP). 36

JURY INSTRUCTIONS, LESSER INCLUDED OFFENSES.

DENIAL OF THE REQUEST TO INSTRUCT THE JURY ON ASSAULT THIRD AS A LESSER INCLUDED OFFENSE AND THE ADMISSION OF THE 911 CALL AS AN EXCITED UTTERANCE WERE NOT REVERSIBLE ERRORS (CT APP). 36

JURY INSTRUCTIONS, LESSER INCLULDED OFFENSES.

REQUEST TO SUBMIT CPCS SEVENTH DEGREE TO THE JURY AS A LESSER INCLUDED OFFENSE OF CPCS FIFTH DEGREE SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED ON THAT COUNT (FOURTH DEPT). 37

JURY NOTES, NO RECORD OF DISCUSSION OF NOTE, ATTORNEY-CLINT PRIVILEGE, SENTENCING.

NO RECORD OF JUDGE’S DISCUSSION OF A JURY NOTE WITH COUNSEL, MURDER CONVICTION REVERSED; DEFENDANT AUTHORIZED HIS AGENT TO SHOW HIS LETTER TO HIS ATTORNEY TO A THIRD PARTY, NO ATTORNEY-CLIENT PRIVILEGE; SENTENCES CANNOT BE CONSECUTIVE FOR CRIMES WITH THE SAME ACTUS REUS (THIRD DEPT). 38

LEGAL SUFFICIENCY, CIRCUMSTANTIAL EIDENCE, CONSCIOUSNESS OF GUILT.

IN AN EXHAUSTIVE DECISION WHICH DISCUSSED ONLY THE CONVOLUTED FACTS OF THIS MURDER CASE, THE MAJORITY AFFIRMED THE CONVICTION, OVER A DISSENT WHICH CALLED INTO QUESTION THE IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER (FIRST DEPT). 39

LEGAL SUFFICIENCY, ACCUSATORY INSTRUMENT, DRIVING WHILE INTOXICATED.

THE FACTUAL ALLEGATIONS IN THIS COMMON LAW DRIVING WHILE INTOXICATED CASE WERE SUFFICIENT TO ALLEGE DEFENDANT WAS THE OPERATOR OF THE VEHICLE, APPELLATE TERM REVERSED (CT APP). 40

LEGAL SUFFICIENCY, SUBSTANCE NOT SHOWN TO BE COCAINE, GRAND JURY.

LEGALLY INSUFFICIENT EVIDENCE THAT THE SUBSTANCE REFERENCED IN THE GRAND JURY TESTIMONY WAS COCAINE, INDICTMENT PROPERLY DISMISSED (THIRD DEPT). 40

LEGAL SUFFICIENCY, SECOND INDICTMENT, GRAND JURY.

MATTER SENT BACK FOR A DETERMINATION WHETHER THE PEOPLE PRESENTED NEW EVIDENCE TO THE SECOND GRAND JURY AFTER A ‘NO BILL,’ THE PEOPLE WERE GRANTED PERMISSION TO RE-PRESENT ON THE GROUND THAT NEW EVIDENCE WAS AVAILABLE (FOURTH DEPT). 41

MISSING WITNESS, PEOPLE MUST SHOW TESTIMONY WOULD BE CUMULATIVE.

THE DEFENSE MADE A PRIMA FACIE SHOWING THAT THE MISSING WITNESS JURY INSTRUCTION WAS APPROPRIATE, THE TRIAL COURT IMPROPERLY PLACED THE BURDEN TO DEMONSTRATE THE WITNESS’S TESTIMONY WOULD NOT BE CUMULATIVE ON THE DEFENDANT, THE PEOPLE DID NOT MEET THEIR BURDEN TO DEMONSTRATE THE TESTIMONY WOULD BE CUMULATIVE (CT APP). 42

POLICE OFFICERS, ASSAULT OF POLICE OFFICER, LAWFUL DUTY ELEMENT NOT PROVEN.

THE PEOPLE DID NOT PROVE THE POLICE OFFICER DEFENDANT PUNCHED WAS ENGAGED IN A LAWFUL DUTY AT THE TIME OF THE ASSAULT, THE PEOPLE ARE HELD TO THE ‘HEAVIER BURDEN’ IN THE DEFINITION OF ‘LAWFUL DUTY’ PROVIDED TO THE JURY WITHOUT OBJECTION, DEFENDANT’S ASSAULT CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT). 43

PAROLE.

PAROLE BOARD MAY CONSIDER SUCH FACTORS AS REMORSE AND INSIGHT INTO THE OFFENSE, EVEN THOUGH THOSE FACTORS ARE NOT LISTED IN THE CONTROLLING STATUTE (THIRD DEPT). 44

PAROLE, INACCURATE INFORMATION ABOUT OFFENSES.

ADMINISTRATIVE APPEAL OF THE DENIAL OF DEFENDANT’S APPLICATION FOR PAROLE WAS TAINTED BY INACCURATE INFORMATION ABOUT THE OFFENSES COMMITTED BY DEFENDANT (THIRD DEPT). 44

PAROLE, BOARD CONSIDERED ALL RELEVANT FACTORS.

PETITIONER WAS 14 IN 1990 WHEN HE MURDERED A CLASSMATE AND THE CHILD SHE WAS BABYSITTING, THE PAROLE BOARD PROPERLY DENIED PAROLE FOR THE FIFTH TIME, THE RECORD DEMONSTRATES THE BOARD CONSIDERED ALL THE RELEVANT FACTORS AND DID NOT BASE THEIR DECISION SOLELY ON THE SERIOUSNESS OF THE OFFENSE (SECOND DEPT). 45

PROBATION, NOTIFICATION OF VIOLATIONS INSUFFICIENT, PROOF OF VIOLATION INSUFFICIENT.

DEFENDANT WAS NOT PROPERLY NOTIFIED OF THE ALLEGED VIOLATIONS OF PROBATION AND THE FINDING THAT DEFENDANT VIOLATED A CONDITION WAS NOT SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE (THIRD DEPT). 46

PROBATION, ILLEGAL CONDITIONS, APPEALS.

ARGUMENT THAT PROBATION CONDITIONS ARE ILLEGAL SURVIVES A WAIVER OF APPEAL AND THE FAILURE TO PRESERVE THE ERROR (FOURTH DEPT). 47

PSYCHIATRIC EVIDENCE, LATE NOTICE, JUDGES.

COUNTY COURT ABUSED ITS DISCRETION BY REFUSING TO ALLOW DEFENDANT TO SUBMIT A LATE NOTICE OF HIS INTENT TO PRESENT PSYCHIATRIC EVIDENCE, CONVICTION REVERSED (SECOND DEPT). 48

SEARCHES, HANDCUFFS, INCIDENT TO ARREST, EXIGENT CIRCUMSTANCES.

SEARCH OF A SUITCASE WAS A VALID SEARCH INCIDENT TO ARREST JUSTIFIED BY EXIGENT CIRCUMSTANCES, DESPITE THE FACT THAT DEFENDANT HAD BEEN HANDCUFFED AND WAS IN THE PRESENCE OF AS MANY AS EIGHT POLICE OFFICERS (FIRST DEPT). 49

SENTENCING, CONSECUTIVE.

THE FACTS SUPPORTED CONSECUTIVE SENTENCES FOR CRIMINAL POSSESSION OF A WEAPON AND MURDER, DEFENDANT WAS SEEN IN POSSESSION OF THE WEAPON SEVERAL MINUTES BEFORE THE DEFENDANT APPROACHED THE VICTIM (CT APP). 50

SENTENCING, RESTITUTION.

SENTENCING COURT MUST DIRECT THE MANNER IN WHICH RESTITUTION IS TO BE PAID, MATTER REMITTED, ISSUE SURVIVES A WAIVER OF APPEAL AND THE FAILURE TO PRESERVE THE ERROR (FOURTH DEPT). 50

SENTENCING, JUVENILE OFFENDERS.

RE: A JUVENILE OFFENDER, THE SURCHARGE AND CRIME VICTIM ASSISTANCE FEE SHOULD NOT HAVE BEEN ASSESSED, AND THE CONSECUTIVE 2 TO 6 SENTENCES ARE ILLEGAL (FOURTH DEPT). 51

SENTENCING, UNDULY HARSH OR SEVERE.

CONSECUTIVE SENTENCES FOR THE SALE OF SMALL AMOUNTS OF COCAINE UNDULY HARSH, CONCURRENT SENTENCES IMPOSED (FOURTH DEPT). 52

SENTENCING, IN ABSENTIA, JUDGES.

ALTHOUGH DEFENDANT WAS WARNED HE WOULD BE SENTENCED EVEN IF HE DIDN’T APPEAR AT SENTENCING, THE JUDGE SHOULD NOT HAVE SENTENCED DEFENDANT IN ABSENTIA WITHOUT FIRST INQUIRING INTO THE REASON AND WHETHER DEFENDANT COULD BE LOCATED (THIRD DEPT). 52

SENTENCING, RESTITUTION, PLEA AGREEMENT, RIGHT TO COUNSEL, GUILTY PLEAS, APPEALS.

RESTITUTION SHOULD NOT HAVE BEEN ORDERED BECAUSE IT WAS NOT PART OF THE PLEA AGREEMENT, THE ARGUMENT SURVIVES THE GUILTY PLEA AND THE WAIVER OF APPEAL; DEFENDANT’S CONTENTION HE WAS DEPRIVED OF HIS RIGHT TO COUNSEL DID NOT SURVIVE THE WAIVER OF APPEAL BECAUSE DEFENDANT DID NOT ASSERT THE DEPRIVATION INFECTED THE PLEA AGREEMENT OR THE VOLUNTARINESS OF THE PLEA (FOURTH DEPT). 53

SENTENCING, ILLEGAL, APPEALS.

IF A DEFENDANT IS NOT SENTENCED AS A PREDICATE FELON THE MINIMUM SENTENCE MUST BE ONE-THIRD OF THE MAXIMUM, NOT ONE-HALF AS IT WAS HERE, AN APPELLATE COURT CAN NOT LET AN ILLEGAL SENTENCE STAND (FOURTH DEPT). 54

SENTENCING, PARKER WARNINGS, ATTORNEYS, INEFFECTIVE ASSISTANCE.

THE PARKER WARNINGS DID NOT SPECIFICALLY WARN DEFENDANT HIS SENTENCE WOULD BE ENHANCED IF HE WERE ARRESTED BETWEEN THE PLEA AND SENTENCING, DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO CHALLENGE THE ENHANCED SENTENCE ON THAT GROUND, MATTER REMITTED FOR SENTENCING TO THE AGREED TERM OR FOR AN OPPORTUNITY FOR DEFENDANT TO WITHDRAW HIS PLEA (THIRD DEPT). 54

SENTENCING, JUDGES, GUILTY PLEAS, APPEALS.

DEFENDANT’S STATEMENTS AT SENTENCING RAISED THE INTOXICATION DEFENSE REQUIRING FURTHER INQUIRY BY THE COURT, ISSUE CONSIDERED AS AN EXCEPTION TO THE PRESERVATION REQUIREMENT, CONVICTION BY GUILTY PLEA REVERSED (THIRD DEPT). 55

SENTENCING, JUVENILE DELINQUENT.

13-YEAR-OLD WHO, AS A FIRST OFFENSE, PARTICIPATED IN AN ASSAULT (USING A MINI OR SOUVENIR BASEBALL BAT) OF A COUPLE BY HER FATHER AND HER FATHER’S GIRLFRIEND PROPERLY ADJUDICATED A JUVENILE DELINQUENT AND SENTENCED TO A 12-MONTH PERIOD OF PROBATION WITH MENTAL HEALTH SERVICES AND SCHOOL MONITORING, STRONG TWO-JUSTICE DISSENT (FIRST DEPT). 56

SENTENCING, YOUTHFUL OFFENDERS, JUDGES, APPEALS.

COURT MUST CONSIDER WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS, A VALID WAIVER OF APPEAL DOES NOT BAR RAISING THE ISSUE (SECOND DEPT). 57

SENTENCING, YOUTHFUL OFFENDERS, JUDGES.

THE SENTENCING COURT DID NOT FOLLOW THE CORRECT PROCEDURE FOR DETERMINING WHETHER DEFENDANT WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS; EVEN WHERE THE DEFENDANT COMMITTED AN ARMED FELONY, WHICH CAN DISQUALIFY A DEFENDANT FROM THE STATUS, THE STATUTORY FACTORS WHICH WOULD NONETHELESS ALLOW YOUTHFUL OFFENDER STATUS MUST BE CONSIDERED AND PLACED ON THE RECORD (THIRD DEPT). 58

SEX OFFENDER REGISTRATION ACT (SORA), DOWNWARD DEPARTURE, JUDGES.

DEFENDANT’S APPLICATION FOR A DOWNWARD DEPARTURE SHOULD HAVE BEEN CONSIDERED, INSTEAD THE APPLICATION WAS DISMISSED AS ‘PREMATURE,’ MATTER REMITTED (SECOND DEPT). 59

SIDEBAR, RIGHT TO BE PRESENT, THERAPY DOG SHOULD NOT ACCOMPANY WITNESS WHEN TESTIFYING.

DEFENDANT DID NOT WAIVE HIS RIGHT TO BE PRESENT AT A SIDEBAR DISCUSSION WITH A PROSPECTIVE JUROR; UPON RETRIAL AN ADULT WITNESS SHOULD NOT TESTIFY WHILE ACCOMPANIED BY A THERAPY DOG (FOURTH DEPT). 60

STATEMENTS IN CONTROLLED PHONE CALL, MIRANDA, CUSTODY.

STATEMENTS MADE BY DEFENDANT DURING A CONTROLLED PHONE CONVERSATION WITH THE MOTHER OF THE ALLEGED CHILD VICTIM SHOULD NOT HAVE BEEN SUPPRESSED; STATEMENTS MADE BY DEFENDANT IN A CLOSED ROOM AT THE SHERIFF’S OFFICE, WHERE DEFENDANT WAS INTERROGATED AND CONFRONTED WITH HIS INCULPATORY STATEMENTS, SHOULD NOT HAVE BEEN SUPPRESSED; ALTHOUGH DEFENDANT WAS INTERROGATED, HE WAS NOT IN CUSTODY (FOURTH DEPT). 61

STATEMENTS, CONSTRUCTIVE POSSESSION, ANSWER TO “WHERE DO YOU RESIDE” IS NOT PEDIGREE INFORMATION.

IN THIS CONSTRUCTIVE POSSESSION CASE, THE INVESTIGATOR’S ASKING DEFENDANT WHERE HE RESIDED WAS DESIGNED TO ELICIT AN INCRIMINATING RESPONSE, THEREFORE DEFENDANT’S RESPONSE WAS NOT PEDIGREE INFORMATION AND A CPL 710.30 NOTICE WAS REQUIRED, ADMISSION OF THE STATEMENT WAS HARMLESS ERROR HOWEVER (FOURTH DEPT). 62

STATEMENTS, HANDCUFFS, MIRANDA, CUSTODY.

ALTHOUGH THE DEFENDANT WAS HANDCUFFED AND SITTING ON THE BACKSEAT OF A POLICE CAR WHEN HE WAS ASKED QUESTIONS, INCLUDING WHETHER HE HAD BEEN DRINKING, BY THE OFFICER WHO MADE THE TRAFFIC STOP, THE DEFENDANT WAS NOT IN CUSTODY WHEN THE QUESTIONS WERE ASKED (FOURTH DEPT). 63

STATUTES, DEFINITION OF MOTOR VEHICLE. VEHICULAR MANSLAUGHTER.

ATV’S ARE NOT MOTOR VEHICLES WITHIN THE MEANING OF PENAL LAW 125.13 (1) (FIRST DEGREE VEHICULAR MANSLAUGHTER); CONCURRENT INCLUSORY COUNTS OF PENAL LAW 125.13 (3) DISMISSED (THIRD DEPT). 64

STREET STOPS, DE BOUR, BLOCKING VEHICLE.

BLOCKING THE CAR IN WHICH DEFENDANT WAS A PASSENGER WAS A JUSTIFIABLE LEVEL TWO INTRUSION, THE SUBSEQUENT LEVEL THREE INTRUSION WAS JUSTIFIED BY THE INFORMATION KNOWN TO THE POLICE AT THE TIME THE DEFENDANT STARTED TO GET OUT OF THE CAR AS THE POLICE APPROACHED (FOURTH DEPT). 65

STREET STOPS, DE BOUR, SEARCHES, MARIJUANA SMELL.

A FOUNDED SUSPICION OF CRIMINALITY WAS NOT A SUFFICIENT GROUND FOR A PAT SEARCH; HOWEVER THE SMELL OF MARIJUANA, ABOUT WHICH THE OFFICER TESTIFIED, WOULD JUSTIFY A SEARCH; BECAUSE THE SUPPRESSION COURT DID NOT RULE ON THE MARIJUANA-SMELL ISSUE, THE MATTER WAS REMITTED FOR A RULING (FOURTH DEPT). 66

SUFFICIENCY OF EVIDENCE, AGE AND TIME ELEMENTS.

PEOPLE FAILED TO PROVE THE VICTIM-AGE AND TIME-PERIOD ELEMENTS OF PREDATORY SEXUAL ASSAULT AGAINST A CHILD, CONVICTION REVERSED (FOURTH DEPT). 67

SUFFICIENCY OF EVIDENCE, AGE ELEMENT.

THE STATUTE WHICH CRIMINALIZES AN ASSAULT ON A PERSON 65 OR OLDER BY A PERSON MORE THAN TEN YEARS YOUNGER DOES NOT REQUIRE PROOF THE ASSAILANT KNEW THE AGE OF THE VICTIM (FOURTH DEPT). 68

SUPERIOR COURT INFORMATION, JURISDICTIONALLY DEFECTIVE.

SUPERIOR COURT INFORMATION IS JURISDICTIONALLY DEFECTIVE FOR FAILURE TO INCLUDE THE TIME OF THE OFFENSE, ISSUE NEED NOT BE PRESERVED (THIRD DEPT). 68

SUPERIOR COURT INFORMATION, JURISDICTIONALLY DEFECTIVE.

THE SUPERIOR COURT INFORMATION (SCI) DID NOT INCLUDE THE TIME OF THE OFFENSE AND WAS THEREFORE JURISDICTIONALLY DEFECTIVE (THIRD DEPT). 69

SUPERIOR COURT INFORMATION, INCORRECT DOCUMENT, JURISDICTIONALLY DEFECTIVE.

A SUPERIOR COURT INFORMATION (SCI) IS NOT AN APPROPRIATE CHARGING DOCUMENT AFTER AN INDICTMENT HAS COME DOWN; IN ADDITION THE SCI HERE WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE THE ORIGINAL CHARGE OR A LESSER INCLUDED OFFENSE (THIRD DEPT). 70

WITNESS INTIMIDATION, GRAND JURY TESTIMONY, HEARSAY ADMISSIBLE.

COUNTY COURT PROPERLY FOUND THAT DEFENDANT USED HIS RELATIONSHIP WITH A WITNESS TO PRESSURE HER NOT TO TESTIFY, THE WITNESS’S GRAND JURY TESTIMONY WAS PROPERLY ADMITTED IN EVIDENCE (FOURTH DEPT). 71