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DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should not have been denied without a hearing. The defendant submitted an affidavit from an alibi witness claiming that defendant was out-of-state at the time of the offense and further stating that she had so informed defense counsel. In denying the motion to vacate, Supreme Court noted that defendant did not submit an affidavit from defense counsel. The Fourth Department recognized  that obtaining such an affidavit is problematic where ineffective assistance is alleged:

“It is well established that the failure to investigate or call exculpatory witnesses may amount to ineffective assistance of counsel’ ” … . Contrary to the court’s determination, a “defendant’s failure to submit an affidavit from trial counsel is not fatal to [a CPL 440.10] motion” … . Where, as here, the defendant’s ” application is adverse and hostile to his [or her] trial attorney,’ it is wasteful and unnecessary’ to require the defendant to secure an affidavit from counsel, or to explain his [or her] failure to do so” … . Moreover, to be entitled to a hearing, a defendant is not required to submit with his or her motion evidence corroborating the alibi witness’s affidavit … . Although the lack of corroboration is a factor the court may consider at a hearing, it is not a basis for denying the motion summarily. People v Scott, 2020 NY Slip Op 01807, Fourth Dept 3-13-20

 

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FAMILY COURT DID NOT MAKE THE REQUISITE FINDINGS IN THIS CUSTODY MATTER WHERE A GRANDPARENT WAS SEEKING CUSTODY, MATTER REMITTED; ASSUMING FAMILY COURT’S ORDER WAS NOT FINAL, THE NOTICE OF APPEAL WAS DEEMED AN APPLICATION FOR LEAVE TO APPEAL; THE DISSENT ARGUED THE ORDER IS NOT APPEALABLE (FOURTH DEPT).

The Fourth Department, remitting the matter, over a dissent, determined Family Court should not have the requisite findings in this custody matter where a grandparent was seeking custody. Family Court had ordered the parties to stipulate to the custody arrangement noting that , if the parties do not agree, a hearing would be held. The dissent argued the order was not final and therefore was not appealable. The majority, assuming the order was not final, deemed the notice of appeal to be an application for leave to appeal:

With respect to the merits of the mother’s contentions regarding the court’s award of joint custody to the father and the maternal grandmother, we conclude that the court failed to set forth “those facts upon which the rights and liabilities of the parties depend” … , specifically its analysis of whether extraordinary circumstances existed to warrant an inquiry into whether an award of joint custody to the maternal grandmother was in the best interests of the child. ” It is well established that, as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances . . . The nonparent has the burden of proving that extraordinary circumstances exist, and until such circumstances are shown, the court does not reach the issue of the best interests of the child’ ” … . Thus, we agree with the mother that the court erred in not determining whether extraordinary circumstances existed before awarding joint custody to the maternal grandmother. The maternal grandmother here had the burden of establishing extraordinary circumstances, which remains the case “whether the nonparent is seeking sole custody or joint custody with one of the parents” … .

We conclude that ” [t]he absence of the required findings precludes proper appellate review’ ” … . Matter of Steeno v Szydlowski, 2020 NY Slip Op 01808, Fourth Dept 3-13-20

 

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THE POLICE OFFICER DID NOT HAVE A FOUNDED SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED THE DEFENDANT POINTED QUESTIONS IN THIS STREET STOP SCENARIO; THE SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the police officer did not have a founded suspicion of criminal activity at the time defendant was asked about the contents of a bag he was carrying. The defendant answered “weed,” was frisked, and a firearm was seized. The evidence should have been suppressed:

The evidence at the suppression hearing establishes that the arresting officer was on routine patrol in what he described as a high-crime area known to be an “open air drug market,” where there had also been numerous burglaries and robberies. That officer had been a member of the police force for only a few months, and he was under the supervision of a training officer. The arresting officer testified that he observed defendant walking on a sidewalk shortly after midnight on a chilly night, with temperatures near 40 degrees, and that defendant was wearing a mask that covered the lower part of his face. The officer had not received any reports of recent crimes in the area, was not responding to any call, and did not observe defendant engage in any illegal activity. The officer pulled his patrol vehicle in front of defendant’s path of travel, exited the patrol vehicle along with the training officer, approached defendant, and asked defendant why he was wearing a mask. Defendant replied that he was walking his dog, and the unchallenged evidence at the hearing establishes that he was indeed walking a dog. * * *

Based on the evidence at the suppression hearing, the People failed to meet their burden of establishing that the training officer had the requisite founded suspicion … . Thus, we conclude that the training officer’s inquiry and the subsequent frisk of defendant by the arresting officer was not a proper escalation of the level one encounter. …

We further conclude that the frisk of defendant and seizure of the gun was not justified “as having been in the interests of the officer[‘s] safety, since there was no testimony that the [arresting] officer[ ] believed defendant to be carrying a weapon . . . , and the People presented no other evidence establishing that the [arresting] officer had reason to fear for his safety” … . People v Wallace, 2020 NY Slip Op 01796, Fourth Dept 3-13-20

 

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DEFENDANT WAS ENTITLED TO SPECIFIC PERFORMANCE OF THE PLEA AGREEMENT; COUNTY COURT SHOULD NOT HAVE ORDERED RESTITUTION WHICH WAS NOT ADDRESSED IN THE AGREEMENT (FOURTH DEPT).

The Fourth Department, amending defendant’s sentence, determined restitution should not have been ordered because it was not addressed in the plea agreement:

Restitution was not part of the plea bargain, and thus the amended sentence exceeded the sentence promised in the plea bargain … . Defendant objected to County Court imposing restitution … , but the court rejected defendant’s request for specific performance of the plea agreement and instead offered defendant the opportunity to withdraw his plea, which defendant declined. As defendant contends and the People correctly concede, defendant was entitled to specific performance of the plea agreement because he “placed himself in a no-return’ position by carrying out his obligations under” the agreement here, and there was “no significant additional information bearing upon the appropriateness of the plea bargain” … . People v Rosa, 2020 NY Slip Op 01793, Fourth Dept 3-13-20

 

PENNSYLVANIA CRIME IS NOT THE EQUIVALENT OF A NEW YORK FELONY; DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER (FOURTH DEPT).

The Fourth Department, vacating the sentence, determined the Pennsylvania crime of receiving stolen property (a firearm) was not the equivalent of a New York felony. Therefore defendant should not have been sentenced as a second felony offender:

We agree with defendant and the People correctly concede that defendant was improperly sentenced as a second felony offender inasmuch as the predicate conviction, i.e., the Pennsylvania crime of receiving stolen property (a firearm) (18 Pa Cons Stat §§ 3903 [a] [3]; 3925) is not the equivalent of the New York felony of criminal possession of stolen property in the fourth degree … . Upon our review of Pennsylvania statutory and case law, the operability of a firearm is not an element of the Pennsylvania offense, whereas it is a required element of the New York offense … . People v Huntress, 2020 NY Slip Op 01778, Fourth Dept 3-13-20

 

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DEFENDANT WAS THREATENED WITH A HARSHER SENTENCE SHOULD SHE DECIDE TO GO TO TRIAL; PLEA VACATED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction by guilty plea, determined defendant was improperly threatened with a heavier sentence should she decide to go to trial:

At an appearance prior to the plea proceeding, the court stated that, if defendant decided to reject the plea offer and was convicted after trial, it intended to impose the maximum sentence on the top count and consecutive time on an unnamed additional count. At that same appearance, the court said that defendant and her codefendants, who were her sister and brother-in-law, would also be federally prosecuted and that “the evidence is overwhelming here.” It is well settled that “[a] defendant may not be induced to plead guilty by the threat of a heavier sentence if he [or she] decides to proceed to trial” … . Here, we agree with defendant that “the court’s statements do not amount to a description of the range of the potential sentences but, rather, they constitute impermissible coercion, rendering the plea involuntary and requiring its vacatur’ ” … . People v Shields, 2020 NY Slip Op 01767, Fourth Dept 3-13-20

 

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ALTHOUGH COUNTY COURT DID NOT ABUSE ITS DISCRETION, THE APPELLATE COURT EXERCISED ITS INTEREST OF JUSTICE JURISDICTION TO ADJUDICATE DEFENDANT A YOUTHFUL OFFENDER (FOURTH DEPT).

The Fourth Department, exercising its own interest of justice authority, determined defendant should be adjudicated a youthful offender, noting that County Court did not abuse its discretion:

… [D]efendant was 17 years old at the time of the crimes and had no prior criminal record, history of violence, or history of sex offending. Moreover, defendant has substantial cognitive limitations, learning disabilities, and other mental health issues, and he has accepted responsibility for his actions and expressed genuine remorse. Both the Probation Department and the reviewing psychologist recommended youthful offender treatment, and the record suggests that defendant might have the capacity for a productive and law-abiding future. The only factor weighing against affording defendant youthful offender treatment is the seriousness of the crimes.

On balance, although County Court did not abuse its discretion in denying defendant youthful offender status, we will exercise our discretion in the interest of justice to reverse the judgment, vacate the conviction, and adjudicate defendant a youthful offender … . People v Nicholas G., 2020 NY Slip Op 01828, Fourth Dept 3-13-20

 

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LABOR LAW 198-b, WHICH PROHIBITS AN EMPLOYER’S COLLECTING KICKBACKS FROM AN EMPLOYEE, DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST THE EMPLOYER (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined Labor Law 198-b, which essentially prohibits an employer from collecting kickbacks from and employee, did not create a private right of action:

Plaintiff, a former teacher at defendant Utica Academy of Science Charter School (UASCS), commenced this action seeking to recover damages based upon allegations that there in which plaintiff was required to provide donations to [defendant] High Way in the form of illegal kickbacks of his salary under threat of demotion or termination. In his third cause of action, plaintiff alleged that defendants’ conduct violated Labor Law § 198-b, and plaintiff sought damages arising from that violation pursuant to Labor Law § 198. …

Although we offer no opinion with respect to whether other provisions within article 6 of the Labor Law afford private rights of action, we agree with High Way that the legislature did not intend to create a private right of action for violations of Labor Law § 198-b … , inasmuch as ” [t]he [l]egislature specifically considered and expressly provided for enforcement mechanisms’ in the statute itself” … . Indeed, by its express terms, a violation of section 198-b constitutes a misdemeanor offense … . Konkur v Utica Academy of Science Charter Sch., 2020 NY Slip Op 01827, Fourth Dept 3-13-20

 

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DEFENDANT’S RIGHT TO COUNSEL ATTACHED AT THE PENNSYLVANIA ARRAIGNMENT; SUBSEQUENT QUESTIONING BY PENNSYLVANIA POLICE IN THE ABSENCE OF COUNSEL VIOLATED DEFENDANT’S RIGHT TO COUNSEL; NEW YORK POLICE DID NOT MAKE A REASONABLE INQUIRY INTO DEFENDANT’S REPRESENTATIONAL STATUS (FOURTH DEPT). ​

The Fourth Department, affirming the suppression of statements made by defendant, determined defendant had requested counsel at his arraignment in Pennsylvania and therefore subsequent questioning by Pennsylvania police about New York (Jamestown) offenses in the absence of counsel violated his right to counsel:

On March 28, 2017, defendant participated in a preliminary arraignment in Pennsylvania … , and the record supports the finding of County Court that defendant requested counsel during that proceeding. On April 4, 2017, members of the Jamestown Police Department traveled to Pennsylvania to interview defendant about the Jamestown arsons. Although the Jamestown police officers ultimately did not interview defendant themselves, they observed while Pennsylvania State Troopers interrogated defendant, in the absence of defense counsel, about the offenses allegedly committed in Pennsylvania. During that interrogation, the Pennsylvania State Troopers also questioned defendant about the New York offenses, and defendant made inculpatory statements about the Jamestown fires. * * *

…[E]even though the interview was carried out by Pennsylvania State Troopers, their interrogation is nevertheless subject to this state’s right to counsel jurisprudence inasmuch as they were agents of the Jamestown police officers … . ,,,

The Court of Appeals has held that “an officer who wishes to question a person in police custody about an unrelated matter must make a reasonable inquiry concerning the defendant’s representational status when the circumstances indicate that there is a probable likelihood that an attorney has entered the custodial matter, and the accused is actually represented on the custodial charge” … . Here, although the [Jamestown] captain asked whether defendant was represented by counsel, based on this record, we conclude that the captain’s inquiry was not reasonable inasmuch as he failed to ask whether defendant had requested counsel. People v Young, 2020 NY Slip Op 01825, Fourth Dept 3-13-20

 

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SUPREME COURT PROPERLY FOUND THAT THE OFFICER DID NOT HAVE SUFFICIENT GROUNDS TO STOP DEFENDANT ON THE STREET, DETAIN HIM, SEARCH HIS BAG AND TRANSPORT HIM TO THE BURGLARY SCENE FOR A SHOWUP IDENTIFICATION (FOURTH DEPT).

The Fourth Department affirmed Supreme Court’s ruling that the officer did not have a sufficient basis for detaining the defendant on the street, searching defendant’s bag and transporting defendant to the burglary scene:

The evidence at the suppression hearing established that the officer who initiated the encounter with defendant was responding to a radio dispatch of a burglary in progress. Because other officers were already at the scene of the burglary when he arrived, the officer canvassed the nearby area in his patrol car. Shortly thereafter, the officer noticed defendant three blocks from the burglary scene, walking alone and carrying a bag and a cell phone. The officer approached defendant, exited his vehicle, and asked defendant what he was doing, and defendant stated that he was looking through garbage cans. The officer then searched defendant’s bag in order to check for weapons and informed defendant that he was going to drive defendant back to the scene of the burglary in order to determine whether defendant was a suspect. The officer placed defendant in the back of the patrol car and drove him to the scene of the crime, where a showup identification was conducted and defendant was identified as the burglar and arrested. The evidence also established that, prior to beginning his shift on the day of the encounter, the officer received a “be on the lookout” (BOLO) photograph depicting defendant and reflecting that defendant may have been involved in a prior burglary.

Contrary to the People’s contention, we perceive no basis in the record for disturbing the court’s finding that the officer did not recognize defendant as the individual depicted in the BOLO until after he drove defendant to the scene of the burglary for the showup identification … .

Although the officer justified the search of defendant’s bag as a check for weapons, the record does not reflect that, at any time during the encounter, the officer “reasonably suspected that defendant was armed and posed a threat to [his] safety” … . Further, all the officer could definitively recall of the initial radio dispatch reporting the burglary in progress was that it described the suspect as a male, although the officer also testified that the dispatch might have identified the suspect as Hispanic and wearing a dark hooded sweatshirt. The vague description of the suspect provided by the radio dispatch, as recounted by the officer at the suppression hearing, did not provide the officer with the requisite reasonable suspicion to effect what was at least a forcible detention of defendant and to transport him to take part in a showup identification … . People v Nazario, 2020 NY Slip Op 00955, Fourth Dept 2-7-20

 

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