Criminal Law Update September 2020

Criminal Law Update September 2020

(Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

This Course Is Appropriate for 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 September 1, 2020 and September 30, 2020 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 September 2020”) 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 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 September 2020”), 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 September 2020

Criminal Law Update September 2020 Attorney Affirmation

Criminal Law Update September 2020 Evaluation Survey

Topics Covered in the “Criminal Law Update September 2020” 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 September 2020”

APPEAL, WAIVER OF.

THE WAIVER OF APPEAL WAS NOT KNOWINGLY AND VOLUNTARILY EXECUTED; NO MENTION OF THE WAIVER WAS MADE UNTIL AFTER THE GUILTY PLEA AND THE EXPLANATION OF THE RIGHTS AT STAKE WAS INSUFFICIENT (SECOND DEPT). 4

AUTHENTICATION.

ALTHOUGH HARMLESS, IT WAS ERROR TO ADMIT THE CONTENT OF SOCIAL MEDIA ACCOUNTS WITHOUT AUTHENTICATING THE ACCOUNTS, PHOTOGRAPHS AND STATEMENTS (SECOND DEPT). 4

CONSTRUCTIVE POSSESSION.

INSUFFICIENT EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED WEAPONS FOUND IN A LOCKED ROOM BELONGING TO DEFENDANT’S DECEASED BROTHER; WEAPONS POSSESSION CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT). 5

DISCLOSURE.

SOME RESTRICTIONS ON DISCLOSURE SHOULD HAVE BEEN IMPOSED BY COUNTY COURT (SECOND DEPT). 6

DISCLOSURE.

SUPREME COURT SHOULD NOT HAVE REQUIRED DEFENSE COUNSEL TO SEEK COURT APPROVAL BEFORE ALLOWING INVESTIGATORS OR OTHER EMPLOYEES ACCESS TO RECORDINGS (SECOND DEPT). 6

GUILTY PLEAS, ATTORNEYS, SENTENCING.

ONCE SUPREME COURT FOUND DEFENDANT’S COUNSEL INEFFECTIVE IT WAS REQUIRED TO VACATE THE CONVICTION; DEFENDANT MOVED TO VACATE HIS CONVICTION BECAUSE HE REJECTED A PLEA OFFER WITHOUT BEING INFORMED HE COULD BE SUBJECT TO LIFE IN PRISON AS A PERSISTENT FELONY OFFENDER AFTER TRIAL; SUPREME COURT SHOULD NOT HAVE REINSTATED THE ORIGINAL SENTENCE AFTER FINDING DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE (SECOND DEPT). 7

GUILTY PLEAS.

SUPREME COURT SHOULD HAVE ENSURED DEFENDANT WAS KNOWINGLY AND INTELLIGENTLY WAIVING THE INTOXICATION DEFENSE BEFORE ACCEPTING DEFENDANT’S GUILTY PLEA; IN THE PLEA COLLOQUY DEFENDANT TOLD THE COURT HE WAS DRUNK AND DIDN’T KNOW WHAT HE WAS DOING (FIRST DEPT). 8

INDICTMENTS, MULTIPLICITY, INCLUSORY CONCURRENT COUNTS.

THREE OF THE FOUR VEHICULAR HOMICIDE COUNTS WERE MULTIPLICITOUS EVEN THOUGH THEY INVOLVED DIFFERENT SUBDIVISIONS OF VEHICLE AND TRAFFIC LAW 1192; THE DWI AND DWAI COUNTS WERE INCLUSORY CONCURRENT COUNTS OF VEHICULAR HOMICIDE SECOND DEGREE (SECOND DEPT). 9

JURY INSTRUCTIONS, ATTORNEYS, APPEALS.

BECAUSE THE TRIAL JUDGE OMITTED A PORTION OF THE BURGLARY JURY INSTRUCTIONS AND THE PEOPLE DID NOT OBJECT, THE PEOPLE ARE HELD TO THE PROOF REQUIRED BY THE INCOMPLETE INSTRUCTIONS; THE BURGLARY CONVICTION WAS THEREFORE AGAINST THE WEIGHT OF THE EVIDENCE; DEFENSE COUNSEL’S FAILURE TO MAKE A SPEEDY TRIAL MOTION DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE BECAUSE THE ISSUE WAS NOT CLEAR-CUT AND DISPOSITIVE (SECOND DEPT). 10

MENTAL HYGIENE LAW.

ALTHOUGH KERRY K WAS ORDERED RELEASED UNDER STRICT AND INTENSIVE SUPERVISION AND TREATMENT PURSUANT TO THE FIRST MENTAL HYGIENE LAW CIVIL COMMITMENT TRIAL, AFTER KERRY K’S SUCCESSFUL APPEAL HE WAS PROPERLY ORDERED RE-CONFINED PENDING THE SECOND TRIAL (SECOND DEPT). 11

SENTENCING, DEPORTATION.

THE APPELLATE COURT, OVER A TWO-JUSTICE DISSENT, REFUSED TO LOWER DEFENDANT’S SENTENCE BY ONE DAY TO AVOID DEPORTATION (SECOND DEPT). 12

SENTENCING.

THE FEDERAL FELONY DID NOT QUALIFY AS A NEW YORK PREDICATE FELONY, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER (SECOND DEPT). 13

SENTENCING.

THE SENTENCES FOR ASSAULT AND POSSESSION OF A WEAPON SHOULD NOT HAVE BEEN IMPOSED CONSECUTIVELY (SECOND DEPT). 13

SEX OFFENDER REGISTRATION ACT (SORA).

AN AUTOMATIC OVERRIDE ALLOWING A LEVEL THREE RISK ASSESSMENT WAS PROPERLY APPLIED TO A PSYCHOLOGICAL ABNORMALITY NOT SPECIFICALLY MENTIONED IN THE SORA RISK LEVEL GUIDELINES (SECOND DEPT). 14

TRAFFIC STOPS.

AN INDICATION THE DEFENDANT’S VEHICLE HAD BEEN IMPOUNDED, REVEALED WHEN THE TROOPER RAN THE PLATES, DID NOT SUPPORT THE TRAFFIC STOP; THE WEAPON AND DRUGS FOUND IN THE VEHICLE SHOULD HAVE BEEN SUPPRESSED; APPELLATE DIVISION REVERSED (CT APP). 15

VACATE CONVICTION.

DEFENDANT’S MOTION TO VACATE HIS 1999 MURDER CONVICTION BASED UPON THE PROSECUTION’S FAILURE TO TURN OVER BRADY MATERIAL PROPERLY GRANTED (SECOND DEPT). 16

VACATE CONVICTION.

DEFENDANT’S MOTION TO VACATE HIS CONVICTION OF A 1996 MURDER BASED UPON NEWLY DISCOVERED EVIDENCE OF THIRD-PARTY CULPABILITY PROPERLY GRANTED (SECOND DEPT). 17

WITNESSES, PRECLUSION OF.

DEFENDANT WAS NOT ACTING IN BAD FAITH IN SEEKING THE TESTIMONY OF CERTAIN WITNESSES; THE TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED; CONVICTIONS REVERSED (SECOND DEPT). 18