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Case Remitted for Determination Whether Defendant Should Be Adjudicated a Youthful Offender/Record Insufficient to Determine Whether Court Erred In Not Disclosing to the Defendant the Written Submissions of the Victims Which Were Reviewed by the Court–Case Remitted to Make an Adequate Record for Review

The Fourth Department determined County Court erred in failing to determine whether defendant should be adjudicated a youthful offender.  The Fourth Department further determined the record was not sufficient for consideration of defendant’s argument County Court erred when it refused to allow defendant to see the written submissions to the judge made by the victims. The case was remitted for consideration of whether the defendant should be adjudicated a youthful offender and to create a record of the written submissions and the reasons defendant was refused access to them.  People v Minemier, 2015 NY Slip Op 00171, 4th Dept 1-2-15

 

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Defendant’s Attorney Not Ineffective for Failing to Make a Motion to Suppress—Nature of a Motion Which, If Not Made, Would Constitute Ineffective Assistance Addressed by the Majority and the Dissent

The Fourth Department, over a two-justice dissent, determined that defendant’s attorney was not ineffective for failure to move to suppress a few of the items of stolen property seized after a traffic stop.  The majority and the dissent disagreed about whether the appeal questioned the validity of the traffic stop or the arrest after the stop.  The dissent felt that a motion to suppress all of the evidence based upon the arguable invalidity of the vehicle stop should have been made. The majority felt that the validity of the stop had not been questioned on appeal. The majority noted that, because the defendant testified, even if the evidence had been suppressed, the defendant could have been impeached with the suppressed evidence. The most useful discussion in the decision concerns the general nature of a motion which, if not made, would constitute ineffective assistance:

We respectfully disagree with our dissenting colleagues that the threshold standard to be applied in determining whether an attorney was ineffective for failing to file a particular motion is “whether the motion at issue had more than little or no chance of success.” It is true, as the dissent points out, that the Court of Appeals has repeatedly stated that “[t]here can be no denial of effective assistance of trial counsel arising from counsel’s failure to make a motion or argument that has little or no chance of success’ ” … . By so stating, however, the Court was not articulating the standard for what does constitute ineffective assistance of counsel; instead, the Court was explaining what does not constitute ineffective assistance of counsel. As noted, the Court has made clear in other cases that the standard to be applied is whether defense counsel failed to file a “colorable” motion and, if so, whether counsel had a strategic or legitimate reason for failing to do so … . Although neither the Court of Appeals nor the Appellate Division has defined “colorable” in this context, the term is elsewhere defined as “appearing to be true, valid, or right” (Black’s Law Dictionary 301 [9th ed 2009]). Federal courts have described a colorable claim as one that has ” a fair probability or a likelihood, but not a certitude, of success on the merits’ ” … . Here, for the reasons previously stated, we do not believe that a motion to suppress evidence as the product of an unlawful arrest would likely have been granted. People v Carver, 2015 NY Slip Op 00046, 4th Dept 1-2-15

 

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Insufficient Evidence Defendant Shared the Intent of the Seller of Heroin—Conviction Under an “Acting in Concert” or “Accomplice” Theory Reversed

Using its “interests of justice” jurisdiction over an unpreserved error, the Fourth Department determined the evidence was insufficient to support defendant’s conviction under an “acting in concert” or “accomplice” theory.  There was insufficient evidence the defendant shared the intent to sell heroin:

“To establish an acting-in-concert theory in the context of a drug sale, the People must prove not only that the defendant shared the requisite mens rea for the underlying crime but also that defendant, in furtherance of the crime, solicited, requested, commanded, importuned or intentionally aided the principal in the commission of the crime . . . The key to our analysis is whether a defendant intentionally and directly assisted in achieving the ultimate goal of the enterprise–—the illegal sale of a narcotic drug” … .

We conclude that the evidence is legally insufficient to establish that defendant acted in concert with the codefendant to sell heroin to the buyer inasmuch as he did nothing “more than simply direct the [buyer] to a location where [she] could purchase [heroin]” … . “While this evidence certainly demonstrated that the defendant was able to identify a local purveyor of narcotics, it did not show . . . that he shared the seller’s intent to bring the transaction about . . . [Indeed], by merely responding to the [buyer’s] inquiry as to who had drugs for sale, the defendant did nothing to solicit or request, much less demand[,] importune[, or assist in] the illicit sale” … . We therefore reverse the judgment of conviction and dismiss the indictment. People v Davila, 2015 NY Slip Op 00016, 4th Dept 1-2-15

 

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Failure to Move to Withdraw Plea, and Thereby Preserve the Issue for Appeal, Did Not Prohibit Appeal Here—Defendant Was Wrongly Informed by the Court and Counsel that the Denial of His Speedy Trial Motion Would Be Appealable After the Plea

The Third Department reversed Supreme Court and vacated defendant's guilty plea because defendant was wrongly informed by the court and counsel that his statutory speedy trial issue would survive the guilty plea (for appeal).  Under the circumstances, the court determined the failure to preserve the error by moving to withdraw the plea did not prohibit the appeal:

The People concede that an essential term of the plea bargain was the parties' understanding that defendant would retain the right to appeal the denial of his motion to dismiss on speedy trial grounds. Defendant was thereafter sentenced … . Defendant now appeals, arguing that his plea was involuntarily entered because his counsel and County Court erroneously informed him that a statutory CPL 30.30 claim would survive a plea of guilty.

Initially, we consider whether defendant was required to preserve this claim by appropriate postallocution motion (see CPL 220.60 [3]; 440.10). While a challenge to the validity of a guilty plea is generally not preserved for appellate review unless it was first raised in the trial court …, the Court of Appeals has recognized that “where a defendant has no practical ability to object to an error in a plea allocution which is clear from the face of the record, preservation is not required” … . Here a CPL 440.10 motion was unavailable because the error is clear from the face of the record; similarly a CPL 220.60 (3) motion was practically unavailable because “'defendant [could] hardly be expected to move to withdraw his plea on a ground of which he ha[d] no knowledge'” … . Inasmuch as defendant–due to the inaccurate advice of his counsel and the trial court–did not know during the plea and sentencing proceedings that his statutory speedy trial claim would be forfeited as a direct consequence of his plea …, preservation was not required … . Moreover, under these circumstances, we agree with defendant that his guilty plea was not knowing, intelligent and voluntary and, accordingly, we reverse and vacate the plea … . People v Williams, 2014 NY Slip Op 09067, 3rd Dept 12-31-14


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Overruling Long-Standing Precedent, The Court of Appeals Determined It Has the Power to Review the Summary Denial of a 440 Motion for Abuse of Discretion/The Trial Court Abused Its Discretion in this Case/The Matter Was Sent Back for a Hearing

The Court of Appeals, in a full-fledged opinion by Judge Pigott, overruling long-standing precedent, held that the Court of Appeals has the power to review the summary denial of a motion to vacate a conviction based upon newly discovered evidence [Criminal Procedure Law (CPL) 440.10(1)(g)]. The defendant had already completed his sentence for rape when he had trial evidence—hairs and fingernail scrapings—subjected to DNA analysis.  The DNA results excluded the defendant.  The trial court summarily denied the motion to vacate and the Appellate Division affirmed.  The Court of Appeals reversed and sent the matter back for a hearing:

…[T]his Court is empowered to conduct a review of the lower courts’ summary denial of a defendant’s CPL 440.10 (1) (g) motion, and to determine whether that denial constituted an abuse of discretion as a matter of law without running afoul of the jurisdictional limitations set forth in NY Constitution, article VI, § 3 (a). Although we are prohibited from weighing facts and evidence in noncapital cases, we are not precluded from exercising our “power to determine whether in a particular judgmental and factual setting there has been an abuse of discretion as a matter of law” because, in so doing, we are not “passing on facts as such, but rather considering them to the extent that they are a foundation for the application of law” … . * * *

On this record, there is a dispute between defendant and the People concerning the reliability of the mtDNA testing, what the results of such testing actually mean and the weight to be given those results in light of the eyewitness identification. As such, defendant should have been afforded a hearing so he could have at the very least an opportunity of “proving by a preponderance of the evidence every fact essential to support [his] motion” (CPL 440.30 [6]), including his assertion that had such DNA evidence been presented at trial, he would have received a more favorable verdict. We reach this conclusion not by weighing the facts or the inferences drawn therefrom, but by examining the parties’ submissions and concluding that the People failed to counter defendant’s prima facie showing that he was entitled to a hearing. Not every CPL 440.10 motion brought by a defendant will warrant a hearing, nor will every summary denial of such a motion constitute an abuse of discretion, but where, as here, there is significant DNA evidence favorable to the defendant and the People proffer no admissible evidence in opposition to that evidence, defendant is, at the very least, entitled to a hearing on his motion. People v Jones, 2014 NY Slip Op 08760, CtApp 12-16-14

 

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Defendant’s “Agency” Defense to a Drug Sale Addressed Under a “Weight of the Evidence” Review (Defense Was Disproved Beyond a Reasonable Doubt)

The Third Department noted that, although the defendant did not preserve his claim his conviction was not supported by legally sufficient evidence, an appellate court will review whether a conviction is supported by proof beyond a reasonable doubt under a “weight of the evidence” review.  The Third Department then went on to find the defendant’s agency defense had been disproved by the People beyond a reasonable doubt.  The court explained the agency defense:

To the extent that defendant contends that the underlying conviction is not supported by legally sufficient evidence, we note that defendant’s generalized motion to dismiss at the close of the People’s case was insufficient to preserve his present claim, i.e., that the People failed to disprove his agency defense beyond a reasonable doubt … . Additionally, defendant, who testified upon his own behalf, failed to renew this motion at the close of all proof; accordingly, defendant’s challenge to the legal sufficiency of the evidence is not preserved for our review … . “That said, our weight of the evidence [analysis] necessarily involves an evaluation of whether all elements of the charged crime[s] were proven beyond a reasonable doubt at trial” … .

Insofar as is relevant here, “[a] person is guilty of criminal sale of a controlled substance in the third degree when he or she knowingly and unlawfully sells . . . a narcotic drug” (Penal Law § 220.39 [1]). Defendant does not dispute that he sold a narcotic drug, i.e., cocaine, to the undercover deputy on the dates in question, but contends that he acted solely as the deputy’s agent in this regard and, at best, is guilty of criminal possession of a controlled substance … . Under the agency doctrine, a person who procures drugs solely as the agent of a buyer is not guilty of either criminal sale or of possession with the intent to sell … . “[W]hether the defendant was a seller, or merely a purchaser doing a favor for a friend, is generally a factual question for the [factfinder] to resolve on the circumstances of the particular case” … . Such a determination, in turn, may hinge upon a number of factors, including “the nature and extent of the relationship between the defendant and the buyer, whether it was the buyer or the defendant who suggested the purchase, whether the defendant has had other drug dealings with this or other buyers or sellers and, of course, whether the defendant profited, or stood to profit, from the transaction” … . Notably, profit does not necessarily equate with pecuniary gain; indeed, this Court has recognized that a defendant may stand to benefit from the underlying sale when such transaction was undertaken in the hopes of receiving either assistance in getting a job … in exchange for obtaining the requested drugs. People v Robinson, 2014 NY Slip Op 08672, 3rd Dept 12-11-14

 

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Indictment Rendered Duplicitous By Trial Evidence Is Not a Mode of Proceedings Error—The Error Must Therefore Be Preserved by an Objection to Be Raised on Appeal

Resolving a split among the appellate division departments, the Court of Appeals determined that an indictment rendered duplicitous by the trial evidence is not a “mode of proceedings” error and the error must therefore be preserved in order to raise it on appeal. The indictment charged one count of attempted murder.  But the evidence presented two different occurrences to which the single count could apply:

The [1st] and [2nd] Departments have held that where it is claimed that the trial evidence has rendered a count duplicitous, the issue must be preserved for review … . The [4th] Department, however, has held that duplicity created by trial evidence violates a defendant’s right to be tried and convicted only of the crimes and theories charged in the indictment, which is a fundamental and non-waivable right, and that such error also violates a defendant’s right under CPL 310.80 to a unanimous verdict, and that preservation is unnecessary … .

As we held in People v Alvarez (20 NY3d 75, 81 [2012], cert denied — US &mdash, 133 S Ct 1736 [2013]), in relation to the constitutional right to a public trial, “preservation of public trial claims is still required. Bringing a public trial violation to a judge’s attention in the first instance will ensure the timely opportunity to correct such errors” … . Therefore, defendant’s argument that he need not preserve an issue that has constitutional significance is unconvincing.

Any uncertainty could have easily been remedied with an objection during opening statements, the witness testimony, or to the jury charge. Requiring preservation will prevent unnecessary surprise after the conduct of a complete trial. Accordingly, we hold that issues of non-facial duplicity, like those of facial duplicity, must be preserved for appellate review. People v Allen, 2014 NY Slip Op 08222, CtApp 11-25-14

 

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The Failure of the Record to Indicate Whether Notes from the Jury Were Properly Addressed by the Court Constitutes a “Mode of Proceedings” Error

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a partial dissent, determined the failure of the record to indicate whether notes from the jury were properly addressed by the court (pursuant to People v O’Rama, 88 NY2d 270) constituted “mode of proceedings” errors requiring reversal in the absence of preservation:

Although not every violation of CPL 310.30 is immune from normal preservation principles …, a failure to apprise counsel about the specific contents of a substantive note from a deliberating jury violates the fundamental tenants of CPL 310.30 and qualifies as a mode of proceedings error … . The record therefore must indicate compliance with adequate procedures under O’Rama because reviewing courts “cannot assume” that the proper procedure was utilized when the record is devoid of information as to how jury notes were handled … . The “presumption of regularity” … cannot salvage an … error of this nature … . People v Silva, 2014 NY Slip Op 08215, CtApp 11-24-14

 

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Waiver of Right to Appeal Invalid Despite the Signing of a Written Waiver

The Second Department determined defendant’s waiver of his right to appeal was not valid because the right was not adequately explained and because there was no indication that the written waiver signed by the defendant was translated for him:

…[T]he record does not reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal … . The Supreme Court’s statements at the plea allocution improperly suggested that waiving the right to appeal was mandatory rather than a right which the defendant was being asked to voluntarily relinquish, and the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal … . Moreover, there is no indication in the record that the defendant understood the distinction between the right to appeal and other trial rights that are forfeited incident to a plea of guilty … . Although the defendant did sign a written waiver of his right to appeal, nothing in the record demonstrates that the document was translated for the defendant, who required the use of a Spanish language interpreter, before it was presented to him for signature … . In any event, the court’s terse colloquy at the plea allocution, which included the language suggesting that the waiver of the right to appeal was mandatory, failed to sufficiently advise the defendant of the nature of the right to appeal … . People v Guarchaj, 2014 NY Slip Op 08044, 2nd Dept 11-19-14

 

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Defendant Who Pled Guilty Without Counsel and Who Was Not Advised of His Right to Appeal May Raise a “Deprivation of the Right to Counsel” Claim In a Motion to Vacate the Judgment of Conviction, Even Though the Issue Could Have Been Raised on Direct Appeal (No Appeal Was Perfected)

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined the defendant should be allowed to raise the argument that he was deprived of his right to counsel in a motion to vacate the judgment of conviction pursuant to Criminal Procedure Law (CPL) 440.10, even though the issue could have been raised on direct appeal.  The defendant had appeared pro se, had pled guilty and did not appeal.  The judge did not advise the defendant of his right to appeal:

It is correct as a general matter that, when the record is sufficient to permit review of an issue on direct appeal, a defendant who either has not appealed his conviction or, having appealed, has failed to raise that issue is barred from later asserting it as a basis for post-conviction relief … .  * * *

But there is an obvious risk of unfairness in applying this procedural bar where the ground that the defendant seeks to raise is that he was deprived of his right to counsel. If he was indeed deprived of that right, that very deprivation may well have led him either not to appeal or not to have presented the issue to an appellate court. A defendant who has wrongly been deprived of a lawyer can hardly be blamed for failing to follow customary legal procedures. * * *

We conclude, in short, that defendant was not barred from raising his right to counsel claim in a CPL 440 motion. We express no opinion on the merits of the claim.  People v Grubstein, 2014 NY Slip Op 07924, CtApp 11-18-14

 

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