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Inadequate Waiver of the Right to Appeal Required Vacation of Guilty Plea, Despite Lack of Preservation of the Error

The Third Department determined defendant’s waiver of his right to appeal was invalid and his guilty plea must therefore be vacated (in the interest of justice), despite the failure to preserve the error:

Defendant argues that his plea was invalid because County Court failed to advise him of the rights that he would be waiving by pleading guilty, including “the privilege against self-incrimination and the rights to a jury trial and to be confronted by witnesses” … . This argument is unpreserved given defendant’s failure to advance it in his motion to withdraw his plea … . While it is somewhat unclear as to the precise characterization of this type of error … , it is undoubtedly one serious enough to warrant reversal in the interest of justice … . …

… [A] trial court is neither required “to specifically enumerate all the rights to which the defendant was entitled [or] to elicit . . . detailed waivers before accepting [a] guilty plea” …, nor engage in “a uniform mandatory catechism of pleading defendants” … . There must, however, “be ‘an affirmative showing on the record’ that the defendant waived his [or her] constitutional rights” … . County Court made no effort to explain the rights that defendant was giving up by pleading guilty, making nothing more than a passing reference to them when asking if defendant had “any questions.” County Court further failed to establish that “defendant consulted with his attorney about the constitutional consequences of a guilty plea,” instead making a vague inquiry into whether defendant had spoken to defense counsel regarding “the plea bargain” and “the case”… . People v Klinger, 2015 NY Slip Op 04682, 3rd Dept 6-4-15

 

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Medical Examiner’s Testimony Did Not Rule Out the Possibility that Someone Other than the Defendant Contributed DNA to a Mixture from At Least Three Persons—Conviction Reversed as Against the Weight of the Evidence

The First Department, over a dissent, determined that defendant’s conviction of criminal possession of a weapon was against the weight of the evidence. The medical examiner testified there was a mixture of DNA from at least three persons found on the weapon and defendant “could” have been a contributor to that mixture. “In other words, the medical examiner could not rule out the reasonable possibility that another unrelated individual could match the DNA profile.”  The court explained its role in a “weight of the evidence,” as opposed to a “legal insufficiency,” analysis:

On this appeal, defendant does not ask us to reverse his convictions of criminal possession of a weapon in the second and third degrees on the ground that the trial evidence was legally insufficient to support such convictions. Instead, defendant argues that his convictions should be reversed because the jury’s verdict was against the weight of the evidence. An appellate court weighing the evidence “must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony'” … . “If based on all the credible evidence a different finding would not have been unreasonable” and if the “trier of fact has failed to give the evidence the weight it should be accorded, the appellate court may set aside the verdict” … . When an appellate court performs weight of the evidence review, it sits, in effect, as a “thirteenth juror” … .

We agree with defendant that the verdict was against the weight of the evidence … . The evidence failed to connect defendant with a pistol that had been discarded during a shooting incident. People v Graham, 2015 NY Slip Op 04401, 1st Dept 5-26-15

 

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Intent to Rob Sufficiently Proven by Circumstantial Evidence

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined there was sufficient evidence to support the attempted robbery conviction.  Defendant, when the business was closed, was dressed in dark clothes, wearing a mask, and carrying a handgun (BB gun) while pounding on the door of the business asking to enter.  The defendant never was allowed inside and ran when the police arrived.  The defendant argued there was no evidence he intended to commit robbery, as opposed to some other crime.  The Court of Appeals found the circumstantial evidence of an intent to commit robbery sufficient:

…[H]ere there was evidence that defendant, who was unknown to any of the employees present that morning, and had no apparent business at Wendy’s, nevertheless showed up masked and armed, carrying a backpack, seeking entry at 6:30 am through a locked rear door not used by the public, with an escape vehicle conveniently parked nearby. This fit the pattern common to an early morning robbery of a commercial establishment and was sufficient to support the inference that defendant intended to steal. People v Lamont, 2015 NY Slip Op 04165, CtApp 5-14-15

 

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Waiver of Appeal Encompasses Sentencing Court’s Denial of Youthful Offender Status

The Court of Appeals, over a two-judge dissent, determined a defendant who has waived his right to appeal may not (on appeal) raise the sentencing court’s denial of youthful offender status.  The Court of Appeals described the limited circumstances under which fundamental issues may be raised on appeal despite a waiver of appeal. Among them is the sentencing court’s failure to consider youthful offender status for an eligible defendant. However, if the sentencing court considered the issue, it is encompassed by the waiver:

“[G]enerally, an appeal waiver will encompass any issue that does not involve a right of constitutional dimension going to ‘the very heart of the process'” … . This Court has recognized that the right to a speedy trial, challenges to the legality of a court-imposed sentence, questions about a defendant’s competency to stand trial, and whether the waiver was obtained in a constitutionally acceptable manner cannot be foreclosed from appellate review … . * * *

It is well settled that once considered, a youthful offender adjudication is a matter left to the sound discretion of the sentencing court and therefore any review is limited (see CPL 720.20 [1] [a]). …”[W]hen a defendant enters into a guilty plea that includes a valid waiver of the right to appeal, that waiver includes any challenge to the severity of the sentence. By pleading guilty and waiving the right to appeal, a defendant has forgone review of the terms of the plea, including harshness or excessiveness of the sentence” … . To the extent defendant appeals the harshness of his sentence or the sentencing court’s exercise of discretion in denying youthful offender status, his appeal waiver forecloses the claim.

We therefore conclude that a valid waiver of the right to appeal, while not enforceable in the face of a failure to consider youthful offender treatment, forecloses appellate review of a sentencing court’s discretionary decision to deny youthful offender status once a court has considered such treatment. People v Pacherille, 2015 NY Slip Op 04027, CtApp 5-12-15

 

Police Officer’s Convictions for “Criminal Diversion” (Obtaining Another’s Prescription Medication), and “Official Misconduct” Not Supported by Legally Sufficient Evidence

The Third Department reversed defendant’s convictions for criminal diversion and official misconduct because the offenses were not supported by legally sufficient evidence.  The defendant, a police officer, was accused of obtaining someone’s prescription drugs in exchange for something of pecuniary value (criminal diversion).  She was also accused of flashing her badge to a pharmacist and asking the pharmacist to hurry up with a prescription drug (official misconduct).  The Third Department determined the “criminal diversion” charge was not supported by evidence the drug involved (a muscle relaxant) was a “prescription medication.”  And, in the absence of evidence the defendant knew that flashing her badge constituted an unauthorized exercise of her official functions, there was not sufficient evidence to support the “official misconduct” charge. People v Barnes, 2014 NY Slip Op 03310, 3rd Dept 5-8-14

 

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Proof Requirements for Criminal Enterprise Explained/Sufficiency of Evidence and Weight of Evidence Review Criteria Explained

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, determined the Appellate Division had applied the wrong legal standards to its “sufficiency of evidence” and “weight of the evidence” review of defendants’ enterprise corruption convictions.   The Appellate Division concluded “the People failed to introduce any evidence of a leadership structure, overall planning of the criminal enterprise, or any communication between [the defendants] and any of the … employees in furtherance of the criminal enterprise.”  The alleged criminal enterprise was a company, in which the defendants were principals, which did construction testing (concrete and steel, for example).  It was alleged that the company routinely issued fraudulent certifications and test results indicating the construction materials (used at hundreds of construction sites) complied with the requirements of the city administrative code. The Court of Appeals determined that the structure of the company constituted “evidence of a leadership structure” and communication among the defendants and the company employees (regarding the issuance of fraudulent test results) could be easily inferred from the facts. The Appellate Division had vacated the enterprise corruption convictions.  The Court of Appeals sent the case back to the Appellate Division for a “weight of the evidence” review of the enterprise corruption proof under the correct legal standards.  (The Court of Appeals cannot do a “weight of the evidence” review.)

Sufficiency and weight review are distinct concepts. To determine whether a verdict was based on sufficient proof, a court must “marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained [their] burden of proof” … . Evidence of guilt is legally sufficient if the facts, viewed in the light most favorable to the People, provide a valid line of reasoning and permissible inferences from which the finder of fact could have rationally concluded that the elements of the crime were established beyond a reasonable doubt … .

A legally sufficient verdict, however, may be against the weight of the evidence … . Unlike a sufficiency analysis, weight of the evidence review requires an intermediate appellate court to act, in effect, as a second jury … by rendering its own determination of the facts as proven at trial … .  People v Kancharla, 2014 NY Slip Op 03295, CtApp 5-8-14

 

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Incorrect Information About Sentencing Provided to the Defendant by the Court and Counsel Warranted Vacating the Plea In the Absence of Preservation

The Fourth Department concluded that wrong information provided to the defendant about sentencing required vacation of the plea, in the absence of preservation by a motion to withdraw the plea.  The defendant was wrongly told by the court and counsel that his sentences on the instant offense and an unrelated offense would necessarily run consecutively. Because there was no way to expect defendant to know the information was incorrect, the error need not be preserved by a motion to withdraw the plea.  Because the plea was based upon complete confusion by all concerned, the plea was vacated:

We agree with defendant, however, that his plea should be vacated on the ground that it was not voluntarily, knowingly or intelligently entered based on the mistaken understanding of the legally required sentence shared by County Court and counsel. Although defendant failed to preserve his contention for our review …, we conclude that the narrow exception to the preservation requirement applies … . Here, it is clear from the face of the record that the prosecutor incorrectly stated that the sentence on the instant conviction must run consecutively to the sentence imposed on an unrelated conviction, when in fact that was not the case because the instant offense occurred prior to the unrelated conviction (see generally Penal Law § 70.25). It is equally clear that this error was not corrected by defense counsel or the trial court. Thus, preservation was not required “[i]nasmuch as defendant—due to the inaccurate advice of his counsel and the trial court—did not know during the plea . . . proceedings” that consecutive sentences were not required by law … . ” [D]efendant [could] hardly be expected to move to withdraw his plea on a ground of which he ha[d] no knowledge’ ” … . Even assuming, arguendo, that the narrow exception to the preservation requirement is inapplicable, we would nevertheless exercise our power to address defendant’s contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).

On the merits, we conclude that defendant’s plea should be vacated because “[i]t is impossible to have confidence, on a record like this, that defendant had a clear understanding of what he was doing when he entered his plea,” based on the prosecutor’s erroneous statement that [*2]consecutive sentences were required and the failure of the court or defense counsel to correct that error. We “cannot countenance a conviction that seems to be based on complete confusion by all concerned” … . People v Brooks, 2015 NY Slip Op 03969, 4th Dept 5-8-15

 

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Court of Appeals Can Not Hear the Appeal of an Issue Not Preserved by Objection

The Court of Appeals could not hear the defendant’s appeal because the issue was not preserved by an objection or by an express decision on the question by the trial court. “The issue argued on this appeal is whether the police were required to again read defendant his Miranda rights when they interviewed him a second time, at his request and in the presence of counsel. In particular, defendant contends that the courts below erred in determining that the presence of counsel obviated the need for police to advise him of his right to remain silent during the second interview. Defendant, however, did not make this argument in his motion papers to the trial court or at the suppression hearing. Moreover, while a general objection — such as that contained in defendant’s omnibus motion — is sufficient to preserve an issue for our review when the trial court “expressly decided the question raised on appeal” …, here, Supreme Court did not expressly decide the issue of whether the police were required to advise defendant of his right to remain silent under the circumstances presented by the second interview.” People v Graham, 2015 NY Slip Op 03767, CtApp 5-7-15

 

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Murder Conviction Against the Weight of the Evidence—Strangulation Was the Result of an Attempt to Increase Sexual Pleasure—No Intent to Kill

The Second Department determined that defendant’s conviction for intentional murder was against the weight of the evidence.  The victim died of strangulation, but the defendant’s actions were motivated by the desire to increase sexual pleasure, not by an intent to kill.  People v Davis, 2014 NY Slip Op 03277, 2nd Dept 5-7-14

 

Accepting a Verdict Before Responding to Jury Requests for Further Instructions and a Readback of Testimony Was a Mode of Proceedings Error Requiring a New Trial

The Fourth Department, over a dissent, determined the trial court’s acceptance of a verdict before addressing jury notes requesting further instructions on the law and a readback of testimony constituted a mode of proceedings error requiring reversal and a new trial:

…”[T]here are few moments in a criminal trial more critical to its outcome than when the court responds to a deliberating jury’s request for clarification of the law or further guidance on the process of deliberations” … . The jury may have resolved the factual issue regarding whether the eyewitness testified that she saw defendant leave the scene without further instruction assistance from the court …. However, the request for a readback of the instruction on reasonable doubt, the determination of which is the crux of a jury’s function, and for a readback of the instruction regarding “the importance a single witness in a case versus multiple witnesses,” “demonstrates the confusion and doubt that existed in the minds of the jury with respect to . . . crucial issue[s] . . . The jury is entitled to the guidance of the court and may not be relegated to its own unfettered course of procedure” … . We therefore conclude that the court’s failure to respond to the jury’s notes seeking clarification of those instructions before the verdict was accepted “seriously prejudiced” defendant … . People v Mack, 2014 NY Slip Op 03075, 4th Dept 5-2-14

 

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