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ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Taylor, over a dissent, reversing County Court, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should have been granted. Even though some of the ineffective assistance claims could be determined from the original record (and therefore should have been raised on appeal), because some of the claims could not be determined from the record, the court could consider all the ineffective assistance issues:

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… [W]e do not find that all of the alleged failures on the part of trial counsel involve matters adequately reflected in the record that could have been raised upon direct appeal. Defendant’s argument that trial counsel was ineffective for failing to impeach the cabdriver “is dependent upon [a] statement[] to the police that [is] outside the record” and, therefore, was properly raised in the context of the instant CPL 440.10 motion … . Defendant also faults trial counsel for failing to request that the crime of assault in the third degree … be submitted to the jury as a lesser included offense of assault in the second degree … . While it is apparent from the face of the record that counsel did not request submission of assault in the third degree as a lesser included offense, it is axiomatic that “the decision to request or consent to the submission of a lesser included offense is often based on strategic considerations, taking into account a myriad of factors, including the strength of the People’s case” … . Because defendant’s complaint about counsel in this regard is predicated on counsel’s strategy, or lack thereof, which is not discernable from the face of the record, we likewise find that this claim of ineffectiveness may properly be advanced by way of a CPL 440.10 motion … .

The two other allegations of ineffectiveness raised on the motion — that counsel failed to object to County Court’s Allen charge and failed to sufficiently articulate and support a request for an instruction on the defense of justification under Penal Law § 35.05 — are, as defendant concedes, based on matters that appear on the face of the record. Yet, relying on People v Maxwell (89 AD3d 1108 [2d Dept 2011]), defendant claims that these record-based allegations of ineffectiveness may appropriately be considered together with his nonrecord-based allegations in the context of this CPL 440.10 motion, thereby permitting review of his claim of ineffective assistance in its entirety. … [W]e agree. People v Taylor, 2017 NY Slip Op 07649, Third Dept 11-2-17

CRIMINAL LAW (MOTION TO VACATE CONVICTION, ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT))/VACATE CONVICTION, MOTION TO (INEFFECTIVE ASSISTANCE, ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, MOTION TO VACATE CONVICTION, ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT))/INEFFECTIVE ASSISTANCE (MOTION TO VACATE CONVICTION, ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT))

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ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT).

The Third Department determined the fact that defendant was not required to register as a sex offender under the law of Washington state did not affect the requirement that he register in New York. The Full Faith and Credit Clause was not implicated:

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Defendant argues that requiring him to register in New York when a Washington court order relieved him of the obligation to register in that state violates the Full Faith and Credit Clause (see US Const, art IV, § 1). However, this clause is designed “to avoid conflicts between [s]tates in adjudicating the same matters” … and “is not implicated where the issue decided by a court in [another] state is different from the issue being decided by a New York court” … . Here, Washington and New York have each separately adjudicated the risks posed by defendant to their respective citizens, and each state has imposed sex offender registration requirements pursuant to the governing sex offender registration laws in each state and, accordingly, neither state has adjudicated the “same matter” in violation of the Full Faith and Credit Clause .., .

… [F]ull faith and credit principles do not require New York to assign an offender the same risk level as that imposed by the jurisdiction where the conviction occurred … . …

… [Because] each state is assessing the risks posed to its own citizens and vulnerable populations and applying its own registration laws, the courts are not adjudicating the “same matters” in violation of the Full Faith and Credit Clause … . People v Hlatky, 2017 NY Slip Op 06693, Third Dept 9-28-17

 

CRIMINAL LAW (ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT))/SEX OFFENDER REGISTRATION ACT (SORA)  (ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT)/CONSTITUTIONAL LAW (FULL FAITH AND CREDIT CLAUSE, ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT))/FULL FAITH AND CREDIT CLAUSE (SEX OFFENDER REGISTRATION ACT, ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT))

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RELIABILITY OF CONFIDENTIAL INFORMANT NOT INDEPENDENTLY ASSESSED BY HEARING OFFICER, DETERMINATION ANNULLED AND EXPUNGED (THIRD DEPT).

The Third Department determined the disciplinary determination must be annulled and expunged because the hearing officer did not independently assess the credibility of an informant:

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“A disciplinary determination may be based upon hearsay confidential information provided that it is sufficiently detailed and probative for the Hearing Officer to make an independent assessment of the informant’s reliability”… . Here, the Hearing Officer, without informing petitioner, interviewed the correction officer who investigated the incident and authored the misbehavior report about the information obtained from the confidential informant. Although the correction officer attested to the informant’s past reliability, the substance of the information gleaned from the informant was too vague and insufficiently detailed to allow the Hearing Officer to independently assess the reliability or credibility of the informant … . Because the confidential information was instrumental in finding petitioner guilty of the charges, the determination is not supported by substantial evidence and must be annulled … . Matter of Fields v Annucci, 2017 NY Slip Op 06697, Third Dept 9-28-17

 

DISCIPLINARY HEARINGS (INMATES) (RELIABILITY OF CONFIDENTIAL INFORMANT NOT INDEPENDENTLY ASSESSED BY HEARING OFFICER, DETERMINATION ANNULLED AND EXPUNGED (THIRD DEPT))/EVIDENCE (DISCIPLINARY HEARINGS, INMATES, RELIABILITY OF CONFIDENTIAL INFORMANT NOT INDEPENDENTLY ASSESSED BY HEARING OFFICER, DETERMINATION ANNULLED AND EXPUNGED (THIRD DEPT))

HEARING OFFICER DID NOT PROVIDE PETITIONER WITH WRITTEN NOTICE OF HER DENIAL OF PETITIONER’S REQUEST THAT A WITNESS TESTIFY, PETITIONER ENTITLED TO A NEW HEARING (THIRD DEPT).

Third Department determined petitioner was entitled to a new hearing because the hearing officer failed to provide him with written notice of her denial of the inmate’s request that a witness testify:

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At the start of the hearing, petitioner indicated three times that he wanted to call inmate X as a witness, and also informed the Hearing Officer that he wished to call six inmates who were housed in his dorm. The Hearing Officer adjourned the hearing to interview the inmates requested and, when the hearing resumed, she informed petitioner that the six inmates housed in his dorm had refused to testify, briefly mentioning the various reasons given and that they had signed refusal forms. The Hearing Officer, however, did not mention whether she had also spoken to inmate X and, if so, what he had said regarding his prior agreement to testify. No other reference was made to inmate X at the hearing and the hearing thereafter concluded without inmate X’s testimony.

Despite the fact that the hearing transcript is devoid of any indication of the Hearing Officer’s efforts to obtain inmate X’s testimony, the record contains a refusal form completed by the Hearing Officer indicating that she personally interviewed inmate X during the pendency of the hearing and that he refused to testify because he did not “want to be involved.” This record evidence establishes the Hearing Officer’s personal efforts to secure inmate X’s testimony and ascertain a sufficient reason for his refusal … . It is equally apparent that the Hearing Officer effectively made a determination to deny petitioner’s request to call this witness for this reason. However, we find that her failure to provide any written notice to petitioner concerning her effective denial of his request amounts to a regulatory violation requiring the matter to be remitted for a new hearing … . Matter of Blades v Annucci, 2017 NY Slip Op 06581, Third Dept 9-21-17

 

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER DID NOT PROVIDE PETITIONER WITH WRITTEN NOTICE OF HER DENIAL OF PETITIONER’S REQUEST THAT A WITNESS TESTIFY, PETITIONER ENTITLED TO A NEW HEARING (THIRD DEPT))

HABEAS CORPUS IS NOT A VEHICLE FOR RELIEF FOR ISSUES WHICH COULD HAVE BEEN RAISED ON APPEAL AND IS NOT AVAILABLE UNTIL A PRISONER IS ENTITLED TO IMMEDIATE RELEASE (THIRD DEPT).

The Third Department noted that habeas corpus is not a vehicle for relief for issues which could have been raised on appeal and is not available until the maximum sentence has been served (must be entitled to immediate release):

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Supreme Court properly dismissed the petition, as “habeas corpus relief is not an appropriate remedy for resolving claims that could have been or that were raised on direct appeal or in a postconviction motion” … . Petitioner’s contentions regarding his sentence were or could have been raised on his direct appeal and in his CPL article 440 motions to vacate the judgment and sentence … . In addition, even if petitioner’s claims were determined to have merit and his sentences were to run concurrently, he would not be entitled to immediate release from prison and, consequently, habeas relief is not appropriate … . To that end, it is the expiration of the maximum sentence, and not the conditional release date, that is required to establish entitlement to release in a habeas corpus proceeding, and petitioner has not yet reached the maximum expiration of his sentences even if they were concurrent … . People v D’Amico, 2017 NY Slip Op 06574, Third Dept 9-21-17

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Similar issue and result in People v Kirkpatrick, 2017 NY Slip Op 06578, Third Dept 9-21-17

 

CRIMINAL LAW (HABEAS CORPUS IS NOT A VEHICLE FOR RELIEF FOR ISSUES WHICH COULD HAVE BEEN RAISED ON APPEAL AND IS NOT AVAILABLE UNTIL A PRISONER IS ENTITLED TO IMMEDIATE RELEASE (THIRD DEPT))/HABEAS CORPUS (HABEAS CORPUS IS NOT A VEHICLE FOR RELIEF FOR ISSUES WHICH COULD HAVE BEEN RAISED ON APPEAL AND IS NOT AVAILABLE UNTIL A PRISONER IS ENTITLED TO IMMEDIATE RELEASE (THIRD DEPT))

FINDING THAT CLAIMANT WAS CAPABLE OF PERFORMING LIGHT WORK WAS NOT SUPPORTED BY THE EVIDENCE, MATTER REMITTED (THIRD DEPT).

The Third Department determined the evidence did not support the Workers’ Compensation Law Judge’s (WCLF’s) conclusion that the claimant was capable of performing light work. The matter was remitted:

… [N]one of the physicians who treated claimant’s physical injuries rated him as having the functional ability to perform light work. To the contrary, they rated him as being able to perform less than sedentary work or sedentary work … . The WCLJ, who was not a medical doctor, appears to have undertaken his own independent analysis of the medical evidence in concluding that claimant was capable of performing light work. Inasmuch as this was a significant factor that was considered in determining claimant’s loss of wage-earning capacity, the WCLJ’s finding that claimant sustained a 60% loss of wage-earning capacity, adopted by the Board, is not supported by substantial evidence in the record … . Accordingly, the matter must be remitted for further proceedings to ascertain claimant’s loss of wage-earning capacity in accordance with the 2012 Guidelines. Matter of Golovashchenko v Asar Intl. Corp., 2017 NY Slip Op 06500, Third Dept 9-14-17

WORKERS’ COMPENSATION LAW (FINDING THAT CLAIMANT WAS CAPABLE OF PERFORMING LIGHT WORK WAS NOT SUPPORTED BY THE EVIDENCE, MATTER REMITTED (THIRD DEPT))

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FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT).

The Third Department determined the failure to file a predicate felony statement required resentencing, despite the failure to preserve the issue by an appropriate motion:

Defendant contends, among other things, that the resentence is invalid because a predicate felony statement was not filed in accordance with CPL 400.21 (2) before he was sentenced as a second felony drug offender … . Although this claim has not been preserved for our review due to defendant’s failure to make an appropriate motion … , under the particular circumstances presented, we exercise our discretion in the interest of justice to take corrective action … . The People concede and the record reveals that a predicate felony statement was never filed as is required by CPL 400.21 (2). In addition, there is no indication that defendant had notice that he would be sentenced as a second felony drug offender when he admitted to the probation violations or at resentencing. Consequently, defendant did not have an opportunity to contest his prior convictions. In view of this, the resentence must be vacated and the matter remitted to County Court for resentencing … . People v Fenner, 2017 NY Slip Op 06483, Third Dept 9-14-17

CRIMINAL LAW (FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, PREDICATE FELONY, SENTENCING, FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT))/APPEALS (CRIMINAL LAW, PREDICATE FELONY STATEMENT, PRESERVATION, FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT))/SENTENCING (PREDICATE FELONY STATEMENT, FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT))/PREDICATE FELONY STATEMENT (FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT))

PETITIONERS HAD CAPACITY AND STANDING TO BRING AN ACTION SEEKING A DECLARATION RESPONDENTS VIOLATED THE ELECTION LAW AND COMPELLING REMEDIAL ACTION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined petitioners did not have the authority under the Election Law to force a respondent to refund a $200,000 contribution to an election committee, but did have capacity and standing to bring an action seeking a declaration respondents violated the Election Law and compelling a respondent to amend its registration documents:

Contrary to Supreme Court’s conclusion, petitioners do not wholly lack the authority to commence this proceeding/action. A party lacks the authority to sue where he or she is without both capacity and standing to sue … . “Capacity to sue is a threshold matter allied with, but conceptually distinct from, the question of standing” …  Capacity “concerns a litigant’s power to appear and bring its grievance before the court” …  and may, in some circumstances, be granted by statute … . In contrast, “[s]tanding involves a determination of whether the party seeking relief has a sufficiently cognizable stake in the outcome so as to cast . . . the dispute in a form traditionally capable of judicial resolution” … . The concept of standing “is, at its foundation, aimed at advancing the judiciary’s self-imposed policy of restraint, which precludes the issuance of advisory opinions” … .

… [P]etitioners — five qualified voters who reside within … the 9th Assembly District — have been statutorily afforded a private right of action to seek a declaration that [responent] violated the Election Law and to compel [responents] to comply with the Election Law . Thus, petitioners have both capacity and standing to seek such relief. * * *

… Election Law § 14-126 (2) [does not] completely extinguish[] the private right of action granted in Election Law § 16-114 (3) so as to deprive petitioners of the authority to seek an order declaring that [respondent] violated Election Law § 14-107-a and compelling [respondent] to amend its registration documents. Matter of Lauder v Pellegrino, 2017 NY Slip Op 06337, Third Dept 8-24-17

 

ELECTION LAW (PETITIONERS HAD CAPACITY AND STANDING TO BRING AN ACTION SEEKING A DECLARATION RESPONDENTS’ VIOLATED THE ELECTION LAW AND COMPELLING REMEDIAL ACTION (THIRD DEPT))

PRINTED NAMES ARE NOT THE EQUIVALENT OF SIGNATURES, CERTIFICATES OF SUBSTITUTION DEEMED INVALID (THIRD DEPT).

The Third Department determined the certificates of substitution designating candidates in a primary election were invalid. The problem was with the section which begins “We, the undersigned, hereby affirm that we constituted a majority of the vacancy committee referred to in the above certificate and that the statements in such certificate are true.” “Below this statement, the majority of the Committee members were required to sign their names before a notary public, but their names were instead printed … , followed by the signature and stamp of the notary public next to the jurat:”

The printed names of the Committee members here were not the equivalent of signatures establishing that they were attesting to the truth of the information contained in the certificates or that they constituted a majority of the Committee. Such deficiency was not a mere error in form … ; indeed, its practical effect was as though the affidavit explicitly required by statute was never filed. Moreover, the deficiency was not cured by the other sections of the certificates because even though the members’ signatures appeared in the first section, their signatures were not notarized and they did not attest to the accuracy of the information contained therein or represent that they constituted a majority of the Committee … . Notwithstanding respondents’ contention that the preprinted form provided by the Board is confusing, this does not relieve the Committee of its obligation to comply with the statutory requirements … . Accordingly, we conclude that Supreme Court properly invalidated the certificates of substitution for failure to comply with the requirements of Election Law § 6-148 (4). Matter of Harder v Kuhn, 2017 NY Slip Op 06338, Third Dept 8-23-17

ELECTION LAW (PRINTED NAMES ARE NOT THE EQUIVALENT OF SIGNATURES, CERTIFICATES OF SUBSTITUTION DEEMED INVALID (THIRD DEPT))/SIGNATURES (ELECTION LAW, PRINTED NAMES ARE NOT THE EQUIVALENT OF SIGNATURES, CERTIFICATES OF SUBSTITUTION DEEMED INVALID (THIRD DEPT))/CERTIFICATES OF SUBSTITUTION (ELECTION LAW, PRINTED NAMES ARE NOT THE EQUIVALENT OF SIGNATURES, CERTIFICATES OF SUBSTITUTION DEEMED INVALID (THIRD DEPT))

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RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, over a two-justice dissent, determined that the record of a retention hearing for an insanity acquittee need not be sealed:

Mental Hygiene Law § 33.13 does not, as respondent contends, require that the record of his retention proceeding be sealed. …

Respondent accepted a plea of not responsible by reason of mental disease or defect and, therefore, “avoid[ed] criminal penalties and . . . [became] subject to the CPL 330.20 scheme” … . As the Court of Appeals has consistently recognized, “[t]his places insanity acquittees in a significantly different posture than involuntarily committed civil patients” and, thus, justifies “rational differences between procedures for commitment and release applicable to defendants found not responsible and persons involuntarily committed under the Mental Hygiene Law” … . The distinction between an insanity acquittee, as we have here, and an involuntarily committed civil patient is apparent by the Legislature’s enactment of a separate statutory scheme — CPL 330.20 — to address the commitment and retention procedures for persons found not responsible for their crimes by reason of mental disease or defect. The detailed statutory framework of CPL 330.20 does not include a provision that requires, or even contemplates, the sealing of these commitment and retention proceedings. Nor does the relevant legislative history indicate that the Legislature intended for these proceedings — which arise only after a criminal defendant affirmatively places his or her mental competency in issue — to be sealed from the public … . Matter of James Q., 2017 NY Slip Op 06222, 3rd Dept 8-17-17

 

MENTAL HYGIENE LAW (CRIMINAL LAW, RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT))/CRIMINAL LAW (INSANITY ACQUITTEE, RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT)/INSANITY ACQUITTEE  (CRIMINAL LAW, RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT))/RETENTION HEARING (INSANITY ACQUITTEE, (CRIMINAL LAW, RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT))

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