By pleading guilty a defendant forfeits appellate review of a claim that his statutory right to a speedy trial pursuant to Criminal Procedure Law 30.30 was violated. However, a defendant’s constitutional speedy trial claim survives both a guilty plea and a waiver of the right to appeal. People v Franco, 2013 NY Slip Op 01570, 2009-10119, Ind No 10795/07, 2nd Dept. 3-13-13
A valid waiver of the right to appeal did not preclude defendant from challenging the severity of his sentence where the sentencing court did not inform the defendant of the maximum term of incarceration and there was no specific sentence promise at the time of the waiver. People vs Scott, 107, KA 11-01655 Fourth Dept. 2-8-13
The jury sent out a note asking “Is intent defined as premeditated desires or actions once engaged?” The trial judge responded to the question by reading an expanded definition of intent and explaining “intent does not require premeditation.” Defense counsel did not object to the way the judge handled the jury’s question. The First Department explained the statutory procedure for answering jury questions and held that the judge’s failure comply with CPL 310.30 by affording “counsel … the opportunity to suggest appropriate responses …,” was a reversible “mode of proceedings” error. People vs McGhee, 2010-05026, Ind. No. 2434/08 Second Dept. 2-6-13
Defendant went to trial before he pled guilty. On appeal he argued the court erred in admitting recorded conversations. The Fourth Department determined, by pleading guilty, the defendant forfeited his right to seek review of any nonjurisdictional defects in the proceedings, including issues arising from an audibility hearing and evidentiary rulings during trial. People vs Alvarado, 130, KA 11-02011 Fourth Dept. 2-1-13
The Second Department determined the trial judge committed reversible error when he answered a juror’s questions in the robing room outside the presence of the defendant, the lawyers and the other jurors. The questions included “when the defendant could be deemed to be responsible ‘by the law’ ….”. Because the questions were not “ministerial’ and related to “the substantive legal and factual issues of the trial…” the error affected the “organization of the court or the mode of proceedings prescribed by law.” Preservation is not required for such a “mode of proceedings” error. People v Rivera, 2009-11428, Ind. No. 9921/07 Second Dept. 1-23-13
The Third Department upheld the defendant’s rape conviction in a full-fledged opinion by Justice Spain. The case is interesting because it is a true “weight of the evidence” analysis where the appellate court conducted “a full review of the testimony adduced at trial,” acting in the role of a jury. There was a strong dissent which argued the conviction should be reversed because the trial judge did not turn over to the defense certain records concerning the complainant’s mental health after an in camera review. People v McCray, 103682 Third Dept 1-17-13
A waiver of the right to appeal is unenforceable where there is “no promise, plea agreement, reduced charge, or any other bargain or consideration given to the defendant in exchange for [her] plea…”. For that reason the Second Department determined defendant’s waiver of appeal was invalid and she could appeal her sentence. People v Brady-Laffer, 2011-11051, Ind. No. 1783-11 Second Dept. 1-16-13
Defendant’s claim that a DNA analyst’s expert testimony violated the Confrontation Clause because it was based on reports made by non-testifying witnesses was rejected, principally because the claim was deemed unpreserved. There is a substantive discussion of preservation requirements. The Court, however, noted that the Court of Appeals held a similar DNA report was nontestimonial for Confrontation Clause purposes. People v Rios, 7651, Ind. 1037/08 First Dept. 1-15-13.
Defendant’s right to appeal was not knowingly, voluntarily, and intelligently waived—it was not established that defendant was aware the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty. Defendant’s sentence was deemed excessive. The sentence was reduced in the interest of justice in light of defendant’s age, the mitigating facts of the case and defendant’s lack of a juvenile record (youthful offender). People v Maria M. 8726 Ind. 1563/10 First Dept. 1-3-13
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