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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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Motion to Set Aside a Verdict Properly Denied When Based Upon an Error Not Preserved by Objection

The Second Department noted that a motion to set aside a verdict (Criminal Procedure Law 330.30) is properly denied when it is based upon an error that was not preserved by objection.  (The issue could be addressed by the appellate court in the interest of justice, but the exercise of interest of justice jurisdiction was declined here.) People v Clayborne, 2014 NY Slip OP 08659, 2nd Dept 12-10-14

 

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Verdict May Not Be Set Aside Pursuant to Criminal Procedure Law 330.30 On a (Waivable) Ground Not Preserved by Objection at Trial

The Second Department determined Supreme Court should not have set aside the verdict pursuant to a CPL 330.30 motion on a ground which was not preserved by an objection.  Supreme Court set aside the assault second conviction on the ground that the indictment, which charged assault first, was improperly amended during trial to assault second.  Because the defendant did not object to the amendment, the issue could not be the basis for setting aside the verdict pursuant to CPL 330.30:

In considering a motion to set aside or modify a verdict pursuant to CPL 330.30(1), a trial court may only consider questions of law, not fact … . Moreover, a trial court may only consider claims of legal error under CPL 330.30(1) where those claims are properly preserved for appellate review … .

Contrary to the Supreme Court’s determination, the alleged amendment of the indictment was not a nonwaivable defect, and the defendant was required to make a timely objection at trial to preserve, for the Supreme Court’s consideration, a claim pursuant to CPL 330.30(1) that the indictment was impermissibly amended … . As the defendant failed to object at trial, he “waived” any challenge to the reduction of the count alleging assault in the first degree …, and the Supreme Court was without authority to set aside the verdict on that ground … . People v Davidson, 2014 NY Slip Op 08346, 2nd Dept 11-26-14

 

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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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Insufficient Break Between Unwarned Statement and Subsequent Warned Statement—All Statements Suppressed/Appellate Court Cannot Consider Argument Not Raised by the People at Trial and Not Considered by the Trial Court

The Second Department, over a dissent, determined that there was not a sufficient break between the unwarned portion of defendant’s statement and the subsequent warned statements to remove the taint of the initial failure to give the Miranda warnings.  The court noted that it was precluded from considering any theory supporting the admissibility of subsequent warned statements because the theory was not presented to the trial court by the People and was not considered by the trial court:

“[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a single continuous chain of events, there is inadequate assurance that the Miranda warnings were effective in protecting a defendant’s rights, and the warned statement must also be suppressed” … . On this record …, it is clear that defendant’s two written statements, although produced after she had been Mirandized, were “part of a single continuous chain of events” that included the detective’s initial pre-warning inquiries and statement, defendant’s pre-warning acknowledgment that she knew why she had been brought in, and her pre-warning statement that she and the other alleged perpetrator had asked to use the victim’s phone outside the latter’s house. There was no time differential between the Miranda violation and the Mirandized interview that immediately followed, giving rise to the two written statements; the same police personnel were involved before and after the warnings; there was no change in the location or nature of the interrogation; and defendant had never indicated a willingness to speak to the police before the Miranda violation. Further, although the pre-warning exchange was very brief and did not include any admission by defendant of criminal conduct, her unwarned statements plainly tended to incriminate her by acknowledging that she knew something about the murder of an elderly woman and by placing herself at the scene of the crime with the victim and the other alleged perpetrator … .

Under the foregoing circumstances established by the record, it cannot be said that there was, between the Miranda violation and the making of the subsequent Mirandized written statements, such a “definite, pronounced break in the interrogation to dissipate the taint from the Miranda violation” … by “return[ing] [defendant], in effect, to the status of one who is not under the influence of questioning” … . * * *

We note that we are precluded from considering whether the break of at least 2 hours and 45 minutes between the completion of defendant’s second written statement and the commencement of her videotaped statement (which began with renewed Miranda warnings administered by the assistant district attorney) sufficed to attenuate any taint from the commencement of the questioning before she was initially Mirandized and, therefore, to render the videotaped statement admissible. The hearing court’s decision denying suppression did not consider any such theory, which had not been raised by the People in opposition to the motion seeking suppression of all three recorded statements. Accordingly, under CPL 470.15(1), we are without power to affirm on the ground that the videotaped statement was admissible and that its admission rendered harmless the error in admitting the written statements … . People v Daniel, 2014 NY Slip Op 07568, 1st Dept 11-6-14

 

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Where Deportation As a Result of a Guilty Plea Is Not Mentioned by the Court, Preservation of the Error Is Not Required

The Second Department noted that, where the court does not mention the prospect of deportation as a result of a guilty plea, the error need not be preserved and the defendant should be given the opportunity to demonstrate to the court the guilty plea would not have been entered if the possibility of deportation were known. People v Al-Mulwallad, 2014 NY Slip OP 07361, 2nd Dept 10-29-14

 

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Failure to Inform Defendant of Period of Post-Release Supervision Before Sentencing (Based On a Guilty Plea) Required Vacation of the Sentence, Even in the Absence of Preservation of the Error

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissent, determined the defendant’s guilty plea must be vacated because defendant wasn’t informed of the period of post-release supervision (PRS) until sentencing (in the absence of preservation of the error):

The primary issue presented by this appeal is whether defendant was required to preserve her claim that her plea was not knowingly and voluntarily entered where she first received notice of the imposition of a term of postrelease supervision (PRS) at sentencing, and submitted to sentencing with the PRS addition. We reverse, vacate the plea, and remit for further proceedings, holding that the court must notify defendant of a term of PRS sufficiently in advance of its imposition that defendant has the opportunity to object to the deficiency in the plea proceeding. In the absence of such an opportunity, preservation is unnecessary. * * *

We held in People v Catu that “[a] trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences” (4 NY3d 242, 244-245 [2005]). To meet due process requirements, a defendant “must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action” (id. at 245). Without such procedures, vacatur of the plea is required (id.). People v Turner, 2014 NY Slip Op 07200, CtApp 10-23-14 

 

Conviction on a Lesser Inclusory Count Can Not Stand Even In the Absence of Preservation

The Fourth Department determined defendant’s conviction of criminal possession of a controlled substance in the seventh degree could not stand because that charge was a lesser inclusory count of another count of which the defendant was convicted (criminal possession of a controlled substance in the fifth degree):

Although defendant failed to preserve this contention for our review, the People … correctly concede that “we may review the issue as a matter of law despite defendant’s failure to raise it in the trial court” … . People v Roberts, 2014 NY Slip Op 06707, 4th Dept 10-3-14

 

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Court’s Failure to Inquire to Ensure Guilty Plea Was Knowing and Voluntary Required Vacation of the Plea (In the Absence of Preservation)

The Fourth Department determined Supreme Court’s failure make an inquiry to determine whether defendant’s guilty plea was knowing and voluntary required reversal (in absence of preservation).  The defendant stated during the plea colloquy that the weapon he used was a BB gun, not a handgun.  Defense counsel explicitly waived any related affirmative defense:

At the outset of the plea colloquy, defense counsel stated that, although defendant told the police that he used a .45 caliber handgun in the robbery, the weapon he had used was actually a BB gun. Defense counsel further stated, however, that defendant would waive the affirmative defense set forth in Penal Law § 160.15 (4), which applies where the weapon used in the robbery “was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged.” During the ensuing plea colloquy, defendant stated that the gun he had used was a BB gun that looked like a revolver, not a .45 caliber handgun as he had told the police. At the end of the plea colloquy, defense counsel, in response to concerns expressed by the prosecutor, again stated that defendant was waiving the affirmative defense set forth in section 160.15 (4). The court then accepted defendant’s plea.

Although “no catechism is required in connection with the acceptance of a plea” …, it is well established that, “where the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea, . . . the trial court has a duty to inquire further to ensure that [the] defendant’s guilty plea is knowing and voluntary” … . “Where the court fails in this duty and accepts the plea without further inquiry, the defendant may challenge the sufficiency of the allocution on direct appeal,” despite having failed to make that challenge in a “postallocution motion” directed to the plea court … . People v Dukes, 2014 NY Slip Op 06454, 4th Dept 9-26-14

 

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Court’s Erroneous Jury Instruction Re: State’s Territorial Jurisdiction Over the Alleged Crime Was Not a Mode of Proceedings Error—Objection Is Required to Preserve the Issue for Appeal

The First Department determined that the court’s erroneous jury instruction concerning the state’s terretorial jurisdiction over the case, as opposed to whether the state actually had territorial jurisdiction, required preservation by objection:

The trial court instructed the jury that the prosecution was required to establish the State’s territorial jurisdiction by a preponderance of evidence. As the People concede, the charge was erroneous in this regard . On the contrary, the People were required to establish the State’s territorial jurisdiction by proof beyond a reasonable doubt (see People v McLaughlin, 80 NY2d at 470). Moreover, territorial jurisdiction is not waivable (id. at 471). Our analysis, however, does not end with a citation to McLaughlin. The issue before us involves the trial court’s charge on jurisdiction as opposed to jurisdiction itself. Although a challenge to a court’s territorial jurisdiction cannot be waived, a claim of error in a court’s instructions on the subject requires preservation by way of an appropriate objection at the court of first instance. Nonetheless, the requirement of preservation is subject to an exception that exists for “mode of proceedings” errors that consist of the most fundamental flaws implicating jurisdictional matters or constitutional rights that go to the very heart of the criminal justice process … . Defendant asserts that the mode of proceedings exception applies here. People v Carvajal (6 NY3d 305 [2005]), a case involving an interstate drug operation, is illustrative. In Carvajal, the Court noted that the defendant had “relinquished his opportunity to hold the People to their burden of proof, and did not preserve his current contention that the jury should have decided whether the People proved jurisdiction beyond a reasonable doubt” (id. at 311-312). Citing People v Greenberg (89 NY2d 553 [1997]), the Carvajal Court aptly observed that “a defendant’s failure to request a jury charge on territorial jurisdiction amounts to a waiver of a jury charge claim, that failure does not amount to waiver of the fundamental question whether – as a matter of law – this State has the power to hear the case” (id. at 312). In this case, it is undisputed that defendant did not object to the trial court’s erroneous charge on the burden of proof with respect to territorial jurisdiction. Guided by Carvajal, we find that defendant was required, but failed, to preserve his present challenge to the trial court’s charge on jurisdiction.  People v Polk, 2014 NY Slip Op 04561, 1st Dept 6-19-14

 

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