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Exclusive Access Not Required for Constructive Possession

The Third Department determined the proof of constructive possession of a weapon was sufficient.  The gun was found in a boot outside the door to the apartment where defendant lived.  He had been seen entering the building with a gun. The court noted that exclusive access to the area where contraband is found is not required to sustain a finding of constructive possession:

Constructive possession can be established by evidence that the defendant had dominion and control over the weapon or the area in which it was found … . Exclusive access, however, is not required to sustain a finding of constructive possession … . Here, the People established that defendant resided in the first-floor apartment with his girlfriend and their young son, and the loaded handgun was found in a man’s boot located in a hallway leading to that apartment among shoes belonging to defendant’s girlfriend and his son. The only other tenant in the building was an elderly woman who lived on the second floor. Although defendant denied ownership of the boots, he admitted that he kept some of his belongings in the hallway, and the People established the presence of his DNA on the weapon. The rational inferences to be drawn from this evidence are sufficient to support the conclusion that defendant exercised dominion and control over the weapon and the area in which it was found … . People v Bellamy, 2014 NY Slip Op 04262, 3rd Dept 6-12-14

 

Defendant Did Not Make a Sufficient Showing to Justify Severance of Counts (Counts Related to Different Victims of Sexual Abuse)—-Nor Did the Defendant Make a Sufficient Showing to Justify a “Taint” Hearing (to Explore whether Allegations by a Child Were the Result of Suggestive Questioning)

The Third Department determined the defendant’s motion to sever the counts of the indictment, which involved different child victims of sexual abuse, was properly denied.  The court further determined the defendant’s motion for a taint hearing (to explore whether a child-victim’s allegations were the result of suggestive questioning) was properly denied:

Although charges arising out of different criminal transactions are properly joinable where, as here, “such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law” (CPL 200.20 [2] [c]…), a court nonetheless may — “in the interest of justice and for good cause shown” — exercise its discretion and order that such offenses be tried separately (CPL 200.20 [3]…). Good cause, in turn, may be established by demonstrating, among other things, that there is “[s]ubstantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense” (CPL 200.20 [3] [a]…). Simply put, defendant failed to make such a showing here. * * *

Notwithstanding the absence of “express statutory authority for a hearing to determine whether the testimony of [a] child witness[] has been tainted by suggestive interviewing techniques,” a court nonetheless may — “[u]pon a proper showing” by the defendant — direct that a pretrial taint hearing be held … . Noticeably absent from defendant’s motion papers was any indication that victim B’s mother engaged in leading or otherwise suggestive questioning of victim B regarding any inappropriate contact that she may have had with defendant. Moreover, “any suggestibility, the manner of questioning and its effects on [victim B’s] testimony could be, and was, addressed on cross-examination of [victim B and her mother]” at trial… . People v Milford, 2014 NY Slip Op 04278, 3rd Dept 6=12=14

 

Motion to Withdraw Guilty Plea Should Not Have Been Denied Without a Hearing

The Third Department determined County Court abused its discretion by denying defendant’s motion to withdraw her guilty plea without a hearing.  The court was aware defendant was under medication which was affecting her ability to think at the time she entered the plea:

…[A]n evidentiary hearing is … required upon a motion to withdraw a guilty plea “[w];here the record raises legitimate questions as to whether the plea was knowingly, intelligently and voluntarily entered into” … . County Court was well aware that defendant was being medicated for longstanding mental health issues, and was further on painkillers due to a recent injury. When she appeared before County Court …, defendant stated that her psychological issues were “out of control” and that she could not think. She further advised County Court that the painkillers she was taking left her unable to attend to her personal needs without assistance. County Court then adjourned the case pending trial, only to have defendant reappear a short time later and plead guilty. People v Bass, 2014 NY Slip Op 04079, 3rd Dept 6-5-14

 

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In the Absence of a Colloquy Conducted by the Court, the Circumstances Indicated that Mother Knowingly, Intelligently and Voluntarily Waiver Her Right to Counsel In a Custody Proceeding

In the course of a decision affirming Family Court’s finding that a change of circumstances warranted modification of the custody arrangement, the Third Department determined the mother had knowingly, intelligently and voluntarily waived her right to counsel.  In the absence of a colloquy conducted by the court, the Third Department found that the relevant circumstances indicated the waiver was valid:

“[A]; party is entitled to self-representation once the court determines that the decision to do so is knowingly, intelligently and voluntarily made. Although it is preferable that the court’s determination be made following an appropriate colloquy with the party on the record, it may also be made upon an examination of all the potential relevant circumstances” .. . Here, at the initial court appearance on April 8, 2011, the mother was represented by an attorney, whom she states was assigned. By the next court date, July 15, 2011, she had terminated the services of the assigned attorney and appeared with a substituted retained attorney. At the next appearance, the father told the court that he was switching attorneys and, at the ensuing appearance on August 10, 2011, the mother informed the court that she wanted to terminate the services of her retained attorney. Her attorney was present and, after confirming that the mother had discussed such action with the attorney, the court permitted the attorney to withdraw.

Noting the multiple adjournments and delays that had occurred by such time, many caused by the switching of attorneys by both parties, the mother was admonished to obtain substitute counsel before the next court date. Over a month later, on September 14, 2011, the mother appeared and stated that she had not been able to retain a new attorney and was involved in a dispute with her former retained attorney about fees. The court stated that it would grant yet another adjournment, but that a trial date would be set with no more adjournments permitted, and the court also reminded the mother that she could apply for assigned counsel. The mother next appeared on November 30, 2011, stating that she was representing herself and that she was ready to proceed with the hearing. The mother had already appeared and prepared documents in many of the proceedings pertaining to the child without an attorney and, among other things, she had obtained subpoenas for several witnesses prior to the hearing. Under all the circumstances, we are satisfied that the record sufficiently reflects that the mother waived her statutory right to counsel knowingly, intelligently and voluntarily… . Matter of Joshua UU v Martha VV, 2014 NY Slip Op 04089, 3rd Dept 6-5-14

 

Nature of a Repugnant Verdict Explained—Here the Verdict Convicting Defendant of Criminal Possession of a Controlled Substance and Acquitting Defendant of Criminal Sale of a Controlled Substance Was Not Repugnant—The Proof at Trial Plays No Part in the Repugnancy Analysis

The Third Department determined County Court should not have determined a verdict was repugnant and sent the jury back for further deliberations.  The Third Department vacated the defendant's conviction on the relevant count.  In the course of the decision the Third Department explained the nature of a repugnant verdict, noting that the proof at trial plays no part in the analysis:

Contrary to defendant's assertion, the jury's initial verdict — convicting him of criminal possession of a controlled substance in the third degree and acquitting him of criminal sale of a controlled substance in the third degree — was not repugnant. “[A]; verdict as to a particular count shall be set aside [as repugnant]; only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury” … . In assessing a repugnancy claim, “we must review the elements of the offenses as charged to the jury without regard to the proof that was actually presented at trial. Thus, [i];f there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support. . . . In this context, the apparently illogical nature of the verdict — as opposed to its impossibility — is viewed as a mistake, compromise or the exercise of mercy by the jury, none of which undermine[s]; a verdict as a matter of law” … .

Here, upon reviewing the elements of the subject offenses, it is readily apparent that the jury's verdict was not repugnant. Criminal sale of a controlled substance in the third degree requires proof that the defendant knowingly and unlawfully sold a narcotic drug (see Penal Law § 220.39 [1]), whereas criminal possession of a controlled substance in the third degree requires only, insofar as is relevant here, that the defendant knowingly and unlawfully possessed a narcotic drug with intent to sell it (see Penal Law § 220.16 [1]). Notably, a “[d];efendant's acquittal on the [sale count]; does not negate the elements of the [possession count], for a person can possess and intend to sell a narcotic drug, but not actually accomplish a sale” … . Defendant's argument to the contrary is predicated upon the specific proof adduced at trial, which — the Court of Appeals has instructed — is to play no role in our analysis of a repugnancy claim … . As the jury's initial verdict was not repugnant, County Court should have denied defendant's motion, accepted the jury's verdict and adjourned the matter for sentencing. Instead, County Court implicitly granted defendant's motion, devised a special verdict sheet and directed the jury to resume deliberations. People v Kramer, 2014 NY Slip Op 04085, 3rd Dept 6-5-14

 

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Taking a Position Adverse to Client’s Pro Se Motion to Withdraw a Guilty Plea Constitutes Ineffective Assistance of Counsel

The Third Department noted that counsel may not take a position adverse to the client’s pro se motion to withdraw a guilty plea.  To do so constitutes ineffective assistance of counsel:

We agree with defendant’s contention that he received ineffective assistance of counsel inasmuch as his new counsel took a position adverse to his with regard to the motion to withdraw his plea. “While defense counsel is not required to support a pro se motion to withdraw a guilty plea, counsel ‘may not take a position . . . that is adverse to the defendant'” … . Although defendant was properly permitted to obtain a new attorney, he was denied the effective assistance of counsel when such counsel “affirmatively undermined arguments [that defendant]; wished the court to review” … . Accordingly, the matter must be remitted for reconsideration of defendant’s motion, for which he must be represented by new counsel. People v Russ, 2014 NY Slip Op 04084, 3rd Dept 6-5-14

 

Parole Violators May Apply for Resentencing Under Drug Law Reform Act—County Court Properly Denied the Application Based Upon the Nature of Defendant’s Convictions and Serious Prison Infractions

In affirming County Court’s denial of defendant’s motion for resentencing under the Drug Law Reform Act, the Third Department noted that the fact that defendant violated parole did not prevent him from applying for resentencing:

While parole violators may indeed apply for resentencing, denial of such an application may be warranted if they “have shown by their conduct that they do not deserve relief from their sentences” … . Defendant has a violent criminal history and, indeed, his most recent criminal conviction and parole violation stem from his possession of a defaced and loaded handgun. The record further reveals that defendant has a lengthy record of serious prison disciplinary infractions, many of them involving violence. We thus find that, notwithstanding defendant’s positive programming achievements while incarcerated, “County Court properly exercised its discretion in finding that substantial justice would not be served by resentencing” him … . People v Allen, 2014 NY Slip Op 04087, 3rd Dept 6-5-14

 

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Court Is Not Required to Notify Defendant of His Right to Contest the Constitutionality of His Prior Conviction Before Sentencing Defendant as a Second Felony Offender

The Third Department noted that the sentencing court was not required to notify defendant of his right to contest the constitutionality of his prior conviction before sentencing defendant as a second felony offender:

” ‘County Court was not obligated to expressly advise defendant of his right to contest the constitutionality of the prior conviction'” … . Here, the record reveals that defendant was provided with the prior felony information before sentencing and, while represented by counsel during sentencing, declined to deny or controvert any of the allegations in the information. Accordingly, County Court substantially complied with the requirements of CPL 400.21 (3), and defendant was properly sentenced as a second felony offender … . People v Wilkins, 2014 NY Slip Op 04083, 3rd Dept 6-5-14

 

Petitioner Not Given Adequate Employee Assistance—Determination Annulled—New Hearing Ordered

The Third Department determined the petitioner was entitled to a new hearing because a report he requested was never provided to him, and no explanation for the failure to provide the report was made:

…[W]e agree with petitioner’s contention that he was denied adequate employee assistance. Specifically, the record reflects that petitioner’s assistance form requested the “injury report,” but the record does not reveal that petitioner was either provided with the report or informed that it did not exist. While the Hearing Officer noted petitioner’s request at the hearing and advised petitioner that he would check into this, no further mention of this issue was made. Under these circumstances, we cannot say on this record that such omission did not prejudice petitioner’s defense, and the determination must be annulled … . Matter of Rupnarine v Prack, 2014 NY Slip Op 04093, 3rd Dept 6-5-14

 

Mother’s Consent to Adoption Not Required

The Third Department determined mother’s consent to adoption was not required due to her failure to seek treatment for drug and alcohol problems and lack of contact with the child:

“Consent to adoption is not required of a parent who ‘evinces an intent to forego his or her parental or custodial rights and obligations as manifested by his or her failure for a period of six months to visit the child and communicate with the child or person having legal custody of the child, although able to do so'” … . “Once the petitioner makes such a showing by clear and convincing evidence, the burden shifts to the parent to demonstrate sufficient contact or an inability to engage in such contact”… . * * *

The record not only reflects that the mother failed to demonstrate an acceptable reason for the absence of contact or communication for over six months, but also that the impediments contributing to such absence of contact resulted from the mother’s own acts and lack of effort … . Matter of Lori QQ, 2014 NY Slip Op 04105, 3rd Dept 6-5-14

 

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