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Court Should Not Have Precluded Expert Evidence About the Quality of Representation Received by Indigent Defendants

The Third Department determined Supreme Court (acting as the trier of fact) should not have precluded the presentation of expert evidence in a case concerning the quality of legal services received by indigent criminal defendants:

Under familiar rules, expert opinions are admissible on subjects involving professional or scientific knowledge or skill not within the range of ordinary training or intelligence” of the trier of fact … . “[T]his principle applies to testimony regarding both ‘the ultimate questions and those of lesser significance'” … . Notably, expert testimony is “appropriate to clarify a wide range of issues calling for the application of accepted professional standards” … .

Here, the experts possess the requisite skill, training, education, knowledge and/or experience to qualify as experts on the operation of indigent defense systems and the evaluation of such systems in light of prevailing professional standards … . * * *

At its core, this litigation is about system-wide conditions relating to and affecting the delivery of public defense — such as caseloads, funding and oversight, among others — and whether these conditions in the defendant counties are such that “the basic constitutional mandate for the provision of counsel to indigent defendants at all critical stages is at risk of being left unmet” … . By virtue of their extensive experience, the experts possess specialized knowledge with respect to the operation of public defense systems, the professional standards applicable to such systems, and the impact of systemic shortcomings on the provision of counsel to indigent criminal defendants at all critical stages. Such particularized knowledge is, manifestly, beyond that of a typical Supreme Court Justice, whose experience is oft confined to case-by-case determinations … . Hurrell-Harring v State of New York 2014 NY Slip Op 05010, 3rd Dept 7-3-14

 

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Flawed Appraisals Would Not Allow a Determination of the Highest and Best Use of the Taken Land

The Third Department determined the appraisal reports submitted for both side were flawed such that the highest and best use of the taken land could not be determined.  The matter was sent back to the Court of Claims.  The court explained the operative principles:

When private property is appropriated for public use, just compensation must be paid, which requires that the owner be placed in the financial position that he or she would have occupied had the property not been taken … . Upon a partial taking of real property, an owner is not only entitled to the value of the land taken — i.e., direct damages — but also to consequential damages, which consist of the diminution in value of the owner’s remaining land as a result of the taking or the use of the property taken … . Damages must be measured based upon the fair market value of the property as if it were being put to its highest and best use on the date of the appropriation, whether or not the property was being used in such manner at that time … . Matter of State of New York…, 2014 NY Slip Op 05002, 3rd Dept 7-3-14

 

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Prosecutor’s Remarks In Summation Required Reversal

The Third Department determined the prosecutor’s remarks in summation required reversal:

Counsel is afforded wide latitude in advocating for his or her case during summation, but “[t]here are certain well-defined limits” that may not be exceeded … . Here, the prosecutor strayed beyond those parameters by, among other things, repeatedly making remarks that impermissibly shifted the burden of proof from the People to defendant … . He described defense counsel’s summation as “throwing mud,” which he characterized as something done by people who “don’t have a reasonable excuse as to crimes that they’ve committed” — thus not only denigrating the theory of defense, but suggesting that it was defendant’s affirmative burden to present such an excuse. He then averred that nothing in the trial record established that defendant had not committed the alleged acts. * * * He stated that, in order to find defendant not guilty, jurors would have to believe that police officers were engaged in a scheme whereby they staged audio recordings of the controlled buys and planted evidence on defendant to frame him, referencing a comedy skit in which police purportedly got away with mistreating people “by sprinkling drugs on them.” * * *

The prosecutor also repeatedly and improperly expressed his personal opinion in an effort to vouch for the credibility of witnesses …. . When discussing a forensic chemist’s testimony that the substances allegedly sold and possessed by defendant were heroin, the prosecutor stated that the issue was “done” and that it was “a closed case.” He repeatedly described his witnesses as honest or declared that they had told the truth. He told the jury to take the male CI’s word for what had happened during one of the controlled buys, adding that he “believe[d] that [the male CI] was more than credible.”* * *  People v Casanova, 2014 NY Slip Op 04978, 3rd Dept 7-3-14

 

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Conditioning Plea Offer Upon Withdrawal of a Constitutional Speedy Trial Motion Is an Inherently Coercive Mode of Proceedings Error

The Third Department determined that the People’s conditioning of a plea bargain on the defendant’s withdrawal of his constitutional speedy trial motion was a mode of proceedings error requiring reversal:

…[T]he Court of Appeals has recently cited to People v Blakley (34 NY2d at 315) as an example of the “mode of proceedings” exception to the preservation rule (People v Hanley, 20 NY3d 601, 604, 605 n 2 [2013]). In that case, the Court held that conditioning a plea on a waiver of a constitutional speedy trial claim is “inherently coercive” (People v Blakley, 34 NY2d at 313). The narrow mode of proceedings exception speaks to fundamental flaws that implicate “rights of a constitutional dimension that go to the very heart of the process” … . Where, as in Blakley, the People condition a plea offer on the defendant’s waiver of his or her constitutional speedy trial claim, the integrity of the judicial process has been undermined … .

Here, the People expressly conditioned the plea offer on defendant’s withdrawal of his constitutional speedy trial motion, while the hearing on this issue was still pending. To make matters worse, the offer was set to expire as soon as the hearing resumed … . This is the type of prosecutorial bartering expressly prohibited as “inherently coercive” in People v Blakley (34 NY2d at 313). A trial court has a core obligation to recognize and prevent such an unfair tactic, but here the court simply reiterated the impermissible condition of the plea and waiver … . People v Wright, 2014 NY Slip Op 04976, 3rd Dept 7-3-14

 

County Court Should Have Afforded Defendant Opportunity to Withdraw His Plea Before Imposing an Enhanced Sentence Based Upon Post-Plea Events

The Third Department determined County Court should not have imposed an enhanced sentenced based upon post-plea events without affording the defendant the opportunity to withdraw his plea:

A sentencing court may not impose an enhanced sentence unless it has informed the defendant of specific conditions that the defendant must abide by or risk such enhancement, or give the defendant an opportunity to withdraw his or her plea before the enhanced sentence is imposed … . Here, County Court enhanced defendant’s sentence due to defendant’s arrest while on release pending sentencing. However, the record reflects that defendant was never warned that County Court would not be bound by its sentencing commitment if he were arrested while out on release … . Consequently, County Court erred in imposing an enhanced sentence without first providing defendant an opportunity to withdraw his plea… . People v Tole, 2014 NY Slip Op 04980, 3rd Dept 7-3-14

 

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Court Erred In Failing to Hold a Restitution Hearing—No Support In Record for Amount Imposed

The Third Department determined County Court erred by imposing $100,000 restitution without a hearing.  The People had determined the $100,000 figure was excessive and had requested restitution in the approximate amount of $32,000:

….[W]e agree with defendant that County Court erred in ordering restitution in the amount of $100,000 without a hearing. By statute, when a court requires restitution, it must make a finding as to the actual amount of loss and, “[i]f the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing” (Penal Law § 60.27 [2]…). Defendant sufficiently preserved this challenge to the increased amount of restitution, in that defense counsel and the People questioned it at sentencing … . Upon review, we find that there is no evidence in the record to support the court’s imposition of $100,000 in restitution. To the contrary, at sentencing the People characterized such figure as “excessive,” stated that they “lacked sufficient documentation and proof” to support that amount, and proffered evidence supporting restitution in the amount of $32,240, a figure to which the victim, the court and defendant had all agreed. Further, there are statutory limits on the amount of restitution, which may be exceeded, as relevant here, provided “‘the amount in excess [is] limited to the return of the victim’s property, including money, or the equivalent value thereof'” … . Accordingly, the matter must be remitted for a restitution hearing or a redetermination of restitution consistent with the plea agreement. Given that “[a] sentencing court may not impose a more severe sentence than one bargained for without providing [the] defendant the opportunity to withdraw his [or her] plea” …, under the circumstances here, upon remittal, defendant must be afforded an opportunity to withdraw his guilty plea if a hearing is held and the amount of restitution imposed exceeds the originally agreed upon amount, i.e., $32,240. People v Pleasant, 2014 NY Slip Op 04981, 3rd Dept 7-3-14

 

People v Rudolph (Requiring Sentencing Court to Consider Youthful Offender Status for All Eligible Defendants) Applied Retroactively to 2008 Conviction (on Direct Appeal)

The Third Department determined the ruling in People v Rudolph (21 NY3d 497 [2013]), requiring that courts always consider youthful offender status for eligible defendants, applied retroactively to a 2008 conviction by guilty plea in which the defendant agreed he would not receive youthful offender status:

In People v Rudolph (supra), the Court of Appeals, overruling precedent, held that the statutory command in CPL 720.20 (1) that the sentencing court address youthful offender status when a defendant is eligible for such status “cannot be dispensed with, even where defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request” (id. at 499). When addressing such status, the sentencing court should set forth factors considered in its determination …, particularly when denying youthful offender status … .

The People * * * assert that, since the sentence was consistent with prevailing precedent when imposed …., the holding in Rudolph should not be applied retroactively. However, notwithstanding the lengthy delay in perfecting this appeal, this case is before us on direct appeal — not a collateral attack — and the law as it now exists controls… . People v Calkins, 2014 NY Slip Op 04977, 3rd Dept 7-3-14

 

Denial of For Cause Challenge to Juror Required Reversal

The Third Department determined the trial court erred in denying defendant’s “for cause” challenge to a juror:

“Prospective jurors who make statements that cast serious doubt on their ability to render an impartial verdict, and who have given less-than-unequivocal assurances of impartiality, must be excused” … . Here, during jury selection, juror No. 153 stated that he was “very uncomfortable” about the alleged use of a firearm during the commission of the charged crimes. When asked by defense counsel if his stated discomfort was something that would affect his ability to keep an open mind, juror No. 153 responded, “It might. I can’t say for sure what it is, but it’s a concern to me.”

After questioning of this panel had concluded, and out of the presence of the prospective jurors, defense counsel challenged juror No. 153 for cause. County Court, stating that defense counsel failed to ask any follow-up questions of juror No. 153 at the time the juror made the subject statements in order to make out an appropriate foundation for cause, denied the challenge. Having heard the statements by juror No. 153, County Court should have either granted the challenge for cause or conducted a further inquiry of that juror and obtained express, unequivocal assurances on the record of his impartiality … . People v Young, 2014 NY Slip Op 04975, 3rd Dept 7-3-14

 

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Sex Offender May Not Avoid Civil Commitment Proceeding by Renouncing Citizenship and Leaving the Country

The Third Department determined the respondent in a Mental Hygiene Law 10.06 proceeding (called a SOMTA proceeding) to determine whether he, as a sex offender, should be committed to a secure mental health treatment facility, could not defeat the proceeding by renouncing his citizenship and leaving the country:

It is well established that “Congress has broad authority to set the conditions and procedures that an individual must satisfy in order to renounce his [or her] citizenship” … . In accord with its authority, Congress enacted 8 USC § 1481, which, in relevant part, provides that “[a] person who is a national of the United States whether by birth or naturalization, shall lose his [or her] nationality by voluntarily performing [certain enumerated] acts with the intention of relinquishing United States nationality” … . A citizen seeking to renounce his or her nationality must make an application therefor and, generally, must be outside the United States to do so … . To this end, respondent argues that the SOMTA petition must be dismissed so that he may be released from DOCCS’s custody in order to leave the United States and return to Israel, where he will effectuate his expatriation… .

We flatly reject this argument, which presupposes, among other things, that respondent would actually exit this country if he were released from custod. Even if he did leave, the state is not required to bear the risk that petitioner — an experienced international fugitive — would not return to New York thereafter. In any event, at this juncture, respondent remains a United States citizen confined in New York who is a sex offender alleged to have a mental abnormality and in need of civil management, and petitioner continues to have a legitimate interest in protecting society from the risks he poses… . Matter of State of New York v Horowitz, 2014 NY Slip Op 05001, 3rd Dept 7-3-14

 

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Hearsay Evidence of Another’s Admission to the Crime Warranted a Hearing Pursuant to Defendant’s Motion to Set Aside the Conviction

The Third Department determined newly discovered evidence, including hearsay evidence of the admission of another (Melton) to the commission of the crime, warranted a hearing pursuant to the defendant’s motion to set aside his conviction:

“[A] defendant has a fundamental right to offer into evidence the admission of another to the crime with which he or she is charged” … . “Depriving a defendant of the opportunity to offer into evidence another person’s admission to the crime with which he or she has been charged, even though that admission may only be offered as a hearsay statement, may deny a defendant his or her fundamental right to present a defense” … . The People’s claims regarding Melton’s unwillingness to testify were themselves hearsay, and simply created issues of fact as to whether he was available and, if not, whether his posttrial statements were admissible as declarations against his penal interest … . A statement is admissible under this hearsay exception if (1) the declarant is unavailable because of death, absence or a refusal to testify on constitutional grounds, (2) the declarant knew when making the declaration that it was contrary to his or her penal interest, (3) he or she had competent knowledge of the facts, and (4) other independent evidence supports the reliability and trustworthiness of the declaration … . Where, as here, the statement at issue tends to exculpate a criminal defendant, a more lenient standard of reliability is applied than to inculpatory statements; an exculpatory declaration is admissible if competent independent evidence “establishes a reasonable possibility that the statement might be true” .. . .  People v Sheppard, 2014 NY Slip Op 04982, 3rd Dept 7-3-14

 

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