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Enhanced Sentencing for Second Child Sexual Assault Felony Offenders Is Required by Penal Law 70.07; Language in Criminal Procedure Law 400.19 Can Not Be Interpreted to Mean the People Can Decide Not to Seek the Enhanced Sentence

The Court of Appeals, in a full-fledged opinion by Judge Rivera, in affirming defendant’s conviction and sentencing, discussed ineffective assistance, prosecutorial misconduct, and statutory interpretation issues. The ineffective assistance and prosecutorial misconduct discussions are fact-specific and not summarized here. With respect to the statutory interpretation issue, the defendant argued he should not have been sentenced as a second child sexual assault felony offender because the People were required to file a predicate statement (notifying him an enhanced sentence would be sought) prior to trial and did not do so. The court determined the statutory language indicating the predicate statement “may” be filed any time before trial (in Criminal Procedure Law [CPL] 400.19) did not preclude the People from filing the statement after trial started, and did not indicate the People had the discretion not to seek an enhanced sentence:

The explicit language in section one [of Penal Law 70.07] states that a person convicted of a felony offense for sexual assault against a child, who has a predicate felony conviction for child sexual assault, “must be sentenced” in accordance with Penal Law § 70.07 sentencing provisions. The applicable time for invoking the procedures contained in CPL 400.19 does not change the import of the mandatory language in Penal Law § 70.07, which subjects this category of offenders to legislatively promulgated enhanced sentences. Furthermore, the specific language in CPL 400.19 (2) upon which defendant relies merely permits filing of the statement before commencement of a trial. It does not prohibit filing afterwards, and before sentencing. As courts have concluded, “may” does not mean “must” … . Notwithstanding defendant’s requests that we read the statute otherwise, this Court is without authority to read mandatory language into a statute where it is otherwise absent … . People v Wragg, 2015 NY Slip Op 08453, CtApp 11-19-15

 

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Petitioner, Who Was Required to Work in the “Work Experience Program [WEP]” to Receive Public Assistance, Was an “Employee” Entitled to Minimum Wage Under the Fair Labor Standards Act (FLSA)

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over an extensive dissenting opinion by Judge Abdus-Salaam (in which Judge Pigott concurred), determined petitioner, who received public assistance from New York City and was therefore required to work 35 hours per week in the Work Experience Program (WEP), was an “employee” entitled to the minimum wage under the Fair Labor Standards Act (FLSA). Petitioner, after completing the WEP, won $10,000 in the state lottery. Under the lottery rules, the state sought one-half of the lottery proceeds as reimbursement for the public assistance paid to petitioner. Petitioner argued that the reimbursement reduced the amount the state paid him for his WEP work below the minimum wage required by the FLSA. The Court of Appeals agreed with petitioner’s argument. The bulk of the opinion and the dissent dealt with the propriety of finding petitioner was an “employee” entitled to the minimum wage protections of the FLSA:

… [W]e must apply the economic reality test and, under that test, the City should be considered Carver’s employer. The City had the power to hire and fire WEP workers, in that it was the City’s responsibility to assign public assistance recipients to a WEP agency and the City could dismiss workers from WEP based upon their performance. Additionally, the City and its WEP agencies supervise and control the work schedule of the workers. Furthermore, the City and its agencies, such as HRA, maintain the employment records of the WEP workers. While the Social Services Law, not the WEP agencies or the City, determines the rate and method of payment of WEP workers, that is simply one factor. The economic reality test “encompasses the totality of the circumstances” … . Matter of Carver v State of New York, 2015 NY Slip Op 08451, CtApp 11-19-15

 

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Courts Have the Power to Exclude Evidence Admitted by Stipulation; Trial Judge’s Refusal to Exclude the Evidence, Under the Facts, Was Not an Abuse of Discretion

In a conspiracy prosecution arising from a scheme to defraud mortgage lenders, the Court of Appeals determined the trial judge properly refused to exclude documentary evidence, and testimony concerning the evidence, which, although inadmissible, was admitted by stipulation and was not objected to until the day after the testimony. The court noted that the trial judge, in the exercise of discretion, had the power to exclude the evidence, despite the stipulation.  But because the admitted evidence did not raise a constitutional (confrontation) issue, was not highly prejudicial, and was not the subject of a timely objection, the trial judge did not abuse his discretion in this case:

Although courts are ordinarily bound to enforce party stipulations … , where a party has in the interests of judicial economy stipulated to the admission of voluminous materials and there are among them scattered items, both prejudicial and ordinarily inadmissible that may reasonably have escaped counsel’s attention, there is no rule preventing an exercise of judicial discretion to relieve the party, at least in part, from the stipulation, particularly where doing so would not significantly prejudice the other side. The trial court here did not take a contrary view in declining to redact the record as defendant requested. It ruled as it did not because it understood the parties’ stipulation categorically to preclude relief of the sort sought, but because significant unobjected-to testimony had already been received … . While the court might have exercised its discretion differently, its decision not to revisit the issue of the notation’s admissibility, cannot under the circumstances be characterized as an abuse of discretion, as would be necessary for it to qualify as a predicate for relief in this Court … . Although the stipulation was not irreversibly binding, it was at least presumptively enforceable and defendant offered no plausible excuse for failing earlier to seek an exception from its coverage. Assuming that the disputed notation might have reasonably escaped notice before trial — and that is at best questionable — it was prominently referenced in [the related] testimony, but even then elicited no contemporaneous protest.

This moreover was not a situation in which the receipt of an extrajudicial statement resulted in a denial of the constitutional right of confrontation. The notation was not testimonial hearsay … ; at worst its admission ran counter to evidentiary rules of nonconstitutional provenance and was, in light of other evidence in the case received without even belated objection, practically redundant. Indeed, a different exercise of discretion by the trial court to exclude the note and redact record references to it, would not have materially altered the evidentiary equation. People v Gary, 2015 NY Slip Op 08368, CtApp 11-18-15

 

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Evidence of Prior Violent Act by Defendant Properly Admitted to Refute “Extreme Emotional Disturbance” Affirmative Defense

The Court of Appeals, in a full-fledged opinion by Judge Stein, in a murder case, determined that evidence of a prior violent act committed by the defendant was properly admitted to rebut defendant’s “extreme emotional disturbance” defense. Defendant presented expert testimony alleging he suffered from post-traumatic stress disorder (PTSD) stemming from a stabbing attack. The defendant argued that his reaction to seeing his friend attacked, intensified by the PTSD, was the reason he fired his gun at a group of people, killing one of them. The defense argued that, prior to the stabbing which triggered the PTSD, defendant was a non-violent person. The evidence of the pre-PTSD violent act by defendant was properly admitted to call into question the “PTSD” defense. A violent incident which occurred after the charged offense, however, should not have been admitted:

Where …. evidence of a defendant’s bad acts or uncharged crimes is “relevant to some material fact in the case, other than the defendant’s propensity to commit the crime charged, it is not to be excluded merely because it shows that the defendant had committed other crimes” … .

Evidence of uncharged criminal conduct or bad acts that are probative of a defendant’s state of mind may be admissible if the defendant “opens the door” to such evidence by putting in issue his state of mind at the time of the commission of the charged crime by, for example, raising an extreme emotional disturbance or insanity defense … . Nevertheless, such a defense opens the door to the People’s rebuttal evidence “only to the extent that [the proffered] evidence has a natural tendency to disprove [the defendant’s] specific claim” … . That is, evidence of uncharged crimes or bad acts is admissible to rebut an extreme emotional disturbance defense where the evidence has “some ‘logical relationship’ to, and a ‘direct bearing upon,’ the People’s effort to disprove” the defense, and the probative value of the evidence outweighs its prejudicial effect … .  Although the balancing of probative value against potential prejudice is a matter that lies within the trial court’s discretion …, “the threshold question of identifying a material issue to which the evidence is relevant poses a question of law” … .

… The crux of the defense was that defendant, a previously nonviolent person, was suffering from PTSD as a result of the 2005 stabbing incident and that his actions in firing into the group on the street were attributable to his PTSD. By raising this defense and presenting the testimony of [two witnesses] — both of whom testified regarding defendant’s personality and behavior before the 2005 stabbing as compared with his behavior after that event — defendant “necessarily put[] in issue some aspects of his character and personal history” … . The prosecutor’s inquiries pertaining to the 2002 incident were “directly relevant to the question of defendant’s reaction patterns” because it was an instance in which “defendant had resorted to violence in the face of relatively mild provocation” before the 2005 stabbing occurred … . This altercation “ha[d] a logical and natural tendency to disprove [defendant’s] specific claim” that he was an otherwise peaceful person who reacted with violence only because his PTSD was triggered by the circumstances in which the shooting took place … . In other words, it tended to refute the subjective element of defendant’s defense, i.e. that he actually acted under the influence of PTSD. Moreover, the court’s decision to allow this incident to be explored on cross-examination, rather than through the testimony of a rebuttal witness, was not improper under the facts presented here. People v Israel, 2015 NY Slip Op 08370, CtApp 11-18-15

 

 

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Defendant’s Statement Was Circumstantial Evidence of the Taking Element of Grand Larceny Because an Innocent Inference from the Statement Was Possible; Video Surveillance Was Direct Evidence of the Taking Element Despite Defendant’s “Innocent” Explanation of His Actions

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined video surveillance showing defendant first hiding and then rifling through the victim's purse was direct, not circumstantial, evidence of the taking element of grand larceny (despite the defendant's non-criminal explanation of his actions). The court also determined the defendant's statement “I don't have it, but I can get it” (made when asked about the purse) was circumstantial evidence of the taking element because an innocent explanation for having the purse could be inferred from the statement. Because both direct and circumstantial evidence of grand larceny was presented, the circumstantial-evidence jury instruction was not required:

It is well settled that a trial court must grant a defendant's request for a circumstantial evidence charge when the proof of the defendant's guilt rests solely on circumstantial evidence … . By contrast, where there is both direct and circumstantial evidence of the defendant's guilt, such a charge need not be given … .

We agree with defendant that his statement to the prosecution witness that he did not have the purse but could get it was not direct evidence of his guilt. A defendant's statement is direct evidence only “if it constitutes 'a relevant admission of guilt' ” … . * * *

Here, defendant's statement — that he did not have the purse but could get it — was not a direct admission of his guilt of larceny. Rather, defendant's statement was also consistent with an inference that although he did not steal the purse, he knew where the purse was located and thought he could obtain it. Inasmuch as his statement merely included inculpatory facts from which the jury may or may not have inferred guilt, his statement was circumstantial rather than direct evidence … .

We agree with the People, however, that the surveillance video constituted direct evidence of defendant's guilt of larceny. The “taking” element of larceny “is satisfied by a showing that the thief exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner's continued rights” … . People v Hardy, 2015 NY Slip Op 08369, CtApp 11-18-15


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Failure to Read Jury Notes to Counsel Before Calling in the Jury Was Not a Mode of Proceedings Error—The Error, Therefore, Must Be Preserved by Objection

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a dissenting opinion by Judge Lippman in which Judge Rivera concurred, determined the trial judge’s failure to read jury notes to counsel and seek their input before calling in the jury was not a mode of proceedings error. Therefore, absent objection, the error was not preserved:

CPL 310.30 requires a trial court to provide “notice to both the people and counsel for the defendant” of a substantive jury inquiry. In O’Rama, we held that the statute requires the court’s notice to counsel to be “meaningful,” and we clarified that this “means notice of the actual specific content of the jurors’ request” (O’Rama, 78 NY2d at 277). This is because “counsel cannot participate effectively or adequately protect the defendant’s rights if this specific information is not given” (id.). We further held that, “in most cases,” meaningful notice is best satisfied by adhering to the procedure outlined in United States v Ronder (639 F2d 931, 934 [2d Cir 1981]), which procedure is now commonly known as the O’Rama procedure:

“Under this procedure, jurors’ inquiries must generally be submitted in writing, since . . . written communications are the surest method for affording the court and counsel an adequate opportunity to confer. Further, whenever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel. Such a step would ensure a clear and complete record, thereby facilitating adequate and fair appellate review. After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses. As the court noted in Ronder (supra, at 934), the trial court should ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to the potentially harmful information. Finally, when the jury is returned to the courtroom, the communication should be read in open court so that the individual jurors can correct any inaccuracies in the transcription of the inquiry and, in cases where the communication was sent by an individual juror, the rest of the jury panel can appreciate the purpose of the court’s response and the context in which it is being made” (O’Rama, 78 NY2d at 277-278). * * *

Where, as here, counsel has meaningful notice of a substantive jury note because the court has read the precise content of the note into the record in the presence of counsel, defendant, and the jury, the court’s failure to discuss the note with counsel before recalling the jury is not a mode of proceedings error. Counsel is required to object to the court’s procedure to preserve any such error for appellate review. …  “We have acknowledged that some departures from O’Rama procedures are subject to our rules of preservation, such as where the court reads the entire content of the note verbatim in open court prior to responding to the jury” (Walston, 23 NY3d at 989 [emphasis added] [internal quotation marks omitted]). People v Nealon, 2015 NY Slip Op 07781, CtApp 10-27-15

 

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The Unaccepted Offer of a Key to Defendant’s Apartment Made to the 10-Year-Old Victim Was Sufficient to Support the Attempted Kidnapping Charge/Twenty-Year-Old Child Molestation Conviction Properly Admitted to Show Defendant’s Intent Re: Kidnapping

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a cogent dissenting opinion by Judge Pigott, determined evidence of a prior sex crime against a child was admissible in an attempted kidnapping prosecution, and further determined the evidence of attempted kidnapping was sufficient. Twenty years earlier, the defendant had been convicted of molesting his step-daughter. Apparently there was a pattern of behavior with his step-daughter which included dressing up (costume) and inviting her to go places with him. That pattern was being repeated with the 10-year-old victim in the instant case. Defendant at one point showed up at the victim’s door dressed up in a costume. Defendant repeatedly asked the victim to go with him for ice cream or to a movie. Defendant offered the key to his apartment to the victim (which she refused). It was that offer (of a key) which formed the basis of the attempted kidnapping charge. The defendant’s conviction for molesting his step-daughter was allowed in evidence to show the defendant’s intent re: kidnapping. The People and the defendant presented expert testimony about defendant’s behavior pattern with his step-daughter and the current victim:

In its written decision and order, the trial court held that the evidence presented by the People demonstrated “more than criminal propensity, but . . . an actual link between the two offenses.” The court noted that the victims of the two offenses “so closely resemble[d] each other . . . as to be virtual twins,” and that “[c]ertain distinctive patterns of behavior employed by the Defendant on each occasion match to an extraordinary degree.” Moreover, the court concluded that the expert testimony at the Ventimiglia hearing demonstrated that “[d]efendant was not merely re-offending, but in fact suffered from a fixated fantasy” and had “transferred his fixation and fantasy from victim number one to victim number two and [was] now re-living the previous sexual encounter.” Based on that expert testimony, the court concluded that “the Defendant’s fixation with the first victim is proof of his intent with regard to the second.” The court stated that it was aware of the potential for prejudice, but was “satisfied that, with careful limitations and adequate caution to the jury, some facts from the earlier case can be utilized to show a unique connection between the two offenses” and that expert testimony would help a jury “to understand what factors should be considered, or discounted, in assessing those facts and that connection.” Under the circumstances presented here, we cannot say that the trial court abused its discretion as a matter of law in admitting evidence of defendant’s prior conviction. * * *

With respect to proof of defendant’s intent, as noted, the People were required to prove that defendant intended to prevent the victim’s liberation by secreting or holding her in a place where she was not likely to be found (see Penal Law §§ 135.00 [2] [a]; 135.20). Defendant’s intent may be inferred from his actions and the surrounding circumstances … . This Court has recognized that “circumstantial evidence of intent is often essential to prosecution for an attempted crime because . . . such evidence may be the only way of proving intent in the typical case of criminal attempt” … . People v Denson, 2015 NY Slip Op 07779, CtApp 10-27-15

 

Court’s Unjustifiably Narrow Interpretation of Jury’s Request for Evidence Required Reversal

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, with a concurring memorandum by Judge Rivera, determined the trial judge’s narrow reading of a request for evidence of the benefits two prosecution witnesses received in return for their testimony required reversal. There was essentially no evidence other than the testimony of the two witnesses pointing to defendant as the shooter. A written cooperation agreement with one of the two witnesses outlined some of the benefits accorded him. However, there was also trial testimony in which both witnesses testified about other benefits received in exchange for testimony. The jury requested to “see” the evidence of the benefits. The court read the request narrowly to refer only to the written cooperation agreement and gave the jury the impression only the cooperation agreement was in evidence. The Court of Appeals held that the jury note should have been read as a request for all the evidence of benefits accorded the witnesses and the failure to provide all the requested evidence was reversible error:

CPL 310.30 provides that, “[u]pon such request” for evidence or legal instruction from a deliberating jury, “the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper” (CPL 310.30). Similarly, absent a withdrawal of the jury’s inquiry or similar circumstances, common-law principles of procedural fairness generally require the court to furnish the jury with information requested during its deliberations, and the court has significant discretion in determining the proper scope and nature of the response … . Thus, regardless of whether the issue is framed under CPL 310.30 or common-law rules governing jury deliberations, where, as here, the defendant has preserved for our review a specific objection to the contents of the trial court’s response to a jury note, we must determine whether the trial court acted within the bounds of its discretion in fashioning an answer to the jury’s inquiry … . In determining whether the trial court abused its discretion and committed reversible error, “[t]he factors to be evaluated are the form of the jury’s question, which may have to be clarified before it can be answered, the particular issue of which inquiry is made, the [information] actually given and the presence or absence of prejudice to the defendant” … .

In this case, an evaluation of those factors demonstrates that the trial court abused its discretion by declining to provide the jurors with information that they plainly wanted and incorrectly characterizing the state of the evidence on the subject of their inquiry.  People v Taylor, 2015 NY Slip Op 07782, CtApp 10-27-15

 

Proper “Initial Aggressor” Jury Instruction Where Defendant Intervenes In an On-Going Fight Explained

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined a flawed “initial aggressor” jury instruction (an exception to the justification defense) required reversal. The defendant alleged that he intervened in an on-going fight on behalf of his brother who was being beaten with a hammer by the victim. The court described how the “initial aggressor” exception to the justification defense should be explained to the jury where a defendant intervenes in an on-going fight. Essentially, if the intervenor knowingly intervenes on behalf of the initial aggressor, the defense is not available. However, if the intervenor had nothing to do with starting the fight and had no reason to know who started the fight, the justification defense is available:

… [T]he standard charge [initial aggressor jury instruction] is misleading unless a supplemental charge is given on the meaning of “initial aggressor” in the defense-of-another scenario … . Thus, the jury should have been charged that, in the context of this case, the initial aggressor rule means — in sum and substance — that if defendant, as “the intervenor[,] somehow initiated or participated in the initiation of the original struggle or reasonably should have known that [his brother, as] the person being defended[,] initiated the original conflict, then justification is not a defense . . . If [defendant] had nothing to do with [the] original conflict and had no reason to know who initiated the first conflict, then the defense is available” … People v Walker, 2015 NY Slip Op 07784, CtApp 10-27-15

 

Absent a Clear Due Process Violation, the Correct Remedy for Failure to Explain Why a Witness Requested by the Inmate Did Not Testify (a Rule Violation) Is a New Hearing, Not Expungement

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that, under the facts, the correct remedy for the failure to call a witness requested by the inmate at a disciplinary hearing was a new hearing, not expungement. The court explained the due process requirements in this context, and the requirements of the Department of Correctional and Community Services’ (DOCCS’) rules, which go beyond the due process requirements. Under the rules, if a requested witness in not called, the inmate must be given a written explanation for the witness’ absence. Due process does not require the prison officials to explain why a witness did not appear. Here, because, under the facts, there was a clear rule violation, but no clear due process violation, a new hearing, not expungement, was appropriate:

Petitioner was charged in a misbehavior report for violating prison disciplinary rules while an inmate at Attica Correctional Facility. At the Tier III disciplinary hearing, petitioner pleaded not guilty to all charges and requested several witnesses be called, including another inmate, T. However, T refused to testify, stating on his inmate witness refusal form that “I was never at Upstate ever. I came here from Attica!” Petitioner asked the hearing officer to re-contact T because his response indicated that he was confused about the location of the incident, which had occurred at Attica. The hearing officer agreed to have T re-interviewed. However, when the hearing reconvened T did not testify and the hearing officer did not state whether T had been re-contacted, and, if so, what he had said regarding the request to testify. The hearing officer, thereafter, found petitioner guilty of all charges, and respondent, the then Commissioner of the Department of Corrections and Community Supervision (DOCCS), administratively affirmed this disposition … . * * *

The United States Supreme Court in Wolff v McDonell , 418 US 539 (1974) held that inmates retain rights under the Federal Due Process Clause and are entitled to the minimum requirements for procedural due process, although those rights are subject to restrictions due to the nature of incarceration (id. at 556-58). Those minimal due process requirements include an inmate’s right in a disciplinary proceeding to call witnesses in the inmate’s defense, so long as “permitting [the inmate] to do so will not be unduly hazardous to institutional safety or correctional goals” (id. at 566). While noting its usefulness, the Supreme Court did not require that prison officials “state [their] reason for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases” (id. ).

The right to call witnesses is codified in DOCCS regulations, which also provide additional protections above and beyond those minimum requirements for procedural due process recognized by the United States Supreme Court (see 7 NYCRR 254.5). For example, and as relevant to this appeal, section 254.5(a) states that an inmate may call a witness if the testimony is “material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals. If permission to call a witness is denied, the hearing officer shall give the inmate a written statement stating the reasons for the denial, including the specific threat to institutional safety or correctional goals presented.” Matter of Texeira v Fischer, 2015 NY Slip Op 07783, CtApp 10-27-15

 

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