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No Reference to When Child-Pornography Images Downloaded/Therefore Consecutive Sentences Could Not Be Imposed

The Third Department determined that consecutive sentences could not be imposed for the downloading of child pornography without specific reference to the date and time of each download:

Consecutive sentences are authorized when “‘the facts demonstrate that the defendant’s acts underlying the crimes are separate and distinct'” … .  The determination as to whether defendant committed separate and distinct acts of possession turns upon when the images came into his possession … .  While the accusatory instrument and defendant’s plea allocution each specified the date and time upon which the images were retrieved from defendant’s computer, there was no information regarding defendant’s act of downloading the images.  Accordingly, consecutive sentences were not authorized in the absence of such information… . People v Pardy, 105529, 3rd Dept 1-30-14

 

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Court May Impliedly Vacate Note of Issue by Directing Discovery

Although the trial court did not impliedly vacate the note of issue in this case, the Third Department explained the criteria for such a vacation:

A court may be deemed to have vacated a note of issue sua sponte, even without explicitly stating so, if the court’s directives with respect to discovery “clearly evince its intent to do so and have the same practical effect”… . McDowell & Walder Inc v Micha…, 516375, 3rd Dept 1-23-14

 

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What To Do If the District Attorney Does Not Wish to Prosecute But the Judge Does

The Third Department determined a trial judge exceeded his powers when he ordered the prosecutor to produce witnesses at a suppression hearing.  The prosecutor did not wish to proceed with the case. The Third Department determined that the prosecutor could not be ordered to produce witnesses at the suppression hearing (the prosecutor’s tactic for dismissing the case) because the CPL did not require the prosecution to present such witnesses. The Third Department went on to suggest that, in this situation, a motion for “dismissal in the interest of justice” might be used, or the prosecutor could simply not present any inculpatory proof at trial:

A district attorney has “unfettered discretion to determine whether to prosecute a particular suspect” … .  Once prosecution of the case is pursued and pending, the district attorney remains “presumptively the best judge of whether a pending prosecution should be terminated” …; nonetheless, at such point dismissal cannot properly be done unilaterally on the sole whim of the district attorney … .  * * *  Unless the district attorney has engaged in egregious misconduct violative of the public interest, the limitation generally will not create difficulty in obtaining swift dismissal where a defendant also desires dismissal, since various procedures are available for disposing of a pending criminal case.

For example, a motion to dismiss in the interest of justice can be made (see CPL 170.40; see also CPL 210.40).  Such motion can be initiated by a defendant, a district attorney, or even by the court before which the case is pending * * *. Although there are statutory criteria that must also be addressed as part of a motion to dismiss in the interest of justice (see CPL 170.40 [1] [a]-[j]), the criteria include a catchall (see CPL 170.40 [1] [j]), and there is flexibility in the manner in which the criteria are weighed and applied … .  * * *

Another, but more time consuming, option is similar to the one ostensibly embarked upon by petitioner.   Consistent with the CPL, a district attorney can stipulate at a suppression hearing to the granting of a defendant’s motion (see CPL 710.60 [2] [b]).   Further, the failure at an eventual trial to produce any inculpatory proof would result in dismissal and, since reprosecution would then be precluded (see e.g. CPL 40.20, 40.30), the primary purpose for abolishing nolle prosequi would not be implicated … . Matter of Soares v Carter…, 517191, 3rd Dept 1-23-14

 

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Defendant Could Properly Subpoena Documents Which May Support a Motion to Dismiss the Indictment in the Interest of Justice/There Was Evidence of a Policy Not to Prosecute Native Americans for Tax Law Violations Relating to Cigarettes

In a case alleging (criminal) cigarette-related tax law violations, the Third Department affirmed Supreme Court’s denial of the state police’s and the tax department’s motions to quash subpoenas concerning a forbearance enforcement policy.  The defendant, who is Native American, alleged the tax department and the state police made a policy-decision not to prosecute Native Americans for tax law violations related to cigarettes manufactured by Native Americans.  The subpoenas were deemed relevant to a possible “interest of justice” dismissal of the indictment:

To be sure, the policy of the Department and the issues surrounding the Division’s actual enforcement of the Tax Law with respect to Native American manufactured cigarettes may very well be found insufficient to justify dismissal of the indictment in the interest of justice.  Yet, we simply cannot say that the testimony sought on those issues “is utterly irrelevant” to the question of whether defendant’s prosecution here would be unjust … .   Accordingly, Supreme Court properly denied the motions to quash the subpoenas. People v Laughing, NYS Dept of Taxation and Finance, 516567, 3rd Dept 1-16-14

 

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Religious Brochure Urging Confession (Given to Defendant by a Deputy Sheriff) Required Trial Court to Make Sure Defendant Understood His Right to Refrain from Testifying at Trial—Trial Court’s Colloquy with Defendant Deemed Sufficient

In a full-fledged opinion by Justice Peters affirming defendant’s conviction, the Third Department determined the trial judge had made an adequate inquiry to ensure that defendant understood his right to refrain from testifying at trial.  The inquiry was deemed necessary in this case because a deputy sheriff had given the defendant a religious brochure which stated that confession was the only way to avoid an “eternity in a prison called hell:”

… [A] criminal defendant has the right to testify in his or her own defense guaranteed by the Federal and State Constitutions … .  This fundamental “right to testify is ‘personal’ and . . . can be waived only by the defendant,” and any such waiver must be knowingly, voluntarily and intelligently made … .  To be sure, the “trial court does not have a general obligation to sua sponte ascertain if the defendant’s failure to testify was a voluntary and intelligent waiver of his [or her] right” … .  However, “in exceptional, narrowly defined circumstances, judicial interjection through a direct colloquy with the defendant may be required to ensure that the defendant’s right to testify is protected” … .

We believe that such colloquy was critically necessary here.  The privilege against self-incrimination – and, by extension, the decision whether to waive that privilege and testify – “is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion'” … .  But here the deputy’s actions in foisting the religious tract upon defendant constituted an effort by law enforcement to “interfere[] with the free and unhampered decision of [defendant] to testify” … .  Moreover, looking at “factors beyond the government’s control to determine whether [defendant’s] decision not to testify resulted from the government’s conduct,” defendant allegedly knew “chapter and verse” the biblical quotations in the tract, making defense counsel concerned that he was peculiarly susceptible to the exhortation made… . People v Robles, 105103, 3rd Dept 1-16-14

 

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In Order for Family Court to Review a Support Magistrate’s Order, Specific Objections Must Have Been Made to Preserve the Issues Raised in Family Court

The Third Department determined that Family Court’s order must be vacated because it was based upon issues not raised in objections to the Support Magistrate’s order.  Because Family Court acts as an appellate court with respect to orders by the Support Magistrate, any errors must be preserved by objections:

…”[A]n order from a Support Magistrate is final and Family Court’s review under Family Ct Act § 439 (e) is tantamount to appellate review and requires specific objections for issues to be preserved” … .  The issues noted by the court were not included in the father’s objections …. Matter of Porter v D’Amano. 516522, 3rd Dept 1-9-14

 

Waiver of Indictment and Guilty Plea Invalid—Superior Court Information Charged a Greater Offense than that Charged in the Original Misdemeanor Information

The Third Department determined defendant’s conviction must be reversed because the superior court information to which defendant pled guilty charged a greater offense (conspiracy fourth degree) than was charged in the misdemeanor complaint (criminal solicitation fourth degree).  In addition, because the defendant’s guilty plea to another offense (criminal sexual act first degree) was induced by the court’s promise of a lesser sentence to run concurrently with the overturned conspiracy sentence, the sexual act plea must be vacated.  With respect to the invalid superior court information, the court wrote:

In New York, felony charges must be prosecuted by indictment, unless a defendant “held for the action of a grand jury upon a charge for such an offense, other than one punishable by death or life imprisonment, with the consent of the district attorney, . . . waive[s] indictment by a grand jury and consent[s] to be prosecuted on an information filed by the district attorney” (NY Const, art I, § 6; see CPL 195.10 [1]).  Where an indictment waiver has been secured, however, the People may not charge in a superior court information a “‘greater offense[], which [has] additional aggravating elements'” … .  This is precisely what occurred here.  The misdemeanor complaint charged defendant with criminal solicitation in the fourth degree and the superior court information impermissibly charged the greater offense of conspiracy in the fourth degree.  Inasmuch as the improper inclusion of a greater offense is a jurisdictional infirmity …, notwithstanding defendant’s appeal waiver and plea, we must reverse his conviction of conspiracy in the fourth degree and dismiss the superior court information… . People v Price, 2014 NY Slip Op 00140 [113 AD3d 883] 3rd Dept 1-9-14

 

Post-Readiness Delay Ran Out Speedy Trial Clock

The Third Department determined defendant’s indictment must be dismissed because of the People’s post-readiness delay.  There were seven days left on the speedy trial clock when the People obtained a superseding indictment. The People requested an adjournment.  The record did not demonstrate the length of the requested adjournment, so the People were charged with the actual length of the adjournment, which was more than seven days:

…[W]here the People have requested an adjournment, “it is the People’s burden to ensure, in the first instance, that the record of the proceedings at which the adjournment was actually granted is sufficiently clear to enable the court considering the subsequent CPL 30.30 motion to make an informed decision as to whether the People should be charged” … .  The People failed to discharge that burden here.  The calendar call at which the adjournment was granted was not transcribed and, although the People are only chargeable with the length of the adjournment actually requested … – as opposed to the length of the adjournment ultimately granted – the record does not establish the length of the adjournment requested by the People. Accordingly, we have no choice but to charge the People with the entire 21 days occasioned by the adjournment, which brings them beyond the seven days remaining on the speedy trial clock… . People v Miller, 104500, 3rd Dept 1-9-14

 

Proof of Indemnification Agreement Insufficient

The Third Department determined the employer did not demonstrate that the contractor hired by the employer had agreed to indemnify the employer for damages related to the injury of the contractor’s employee:

Workers’ Compensation Law § 11 precludes third-party indemnification claims against employers unless the claim is “based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the . . . person asserting the cause of action for the type of loss suffered” … . “When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed” … .  “Whether the parties did in fact have such an agreement involves a two-part inquiry.  First, we consider whether the parties entered into a written contract containing an indemnity provision applicable to the site or job where the injury giving rise to the indemnity claim took place. Second, if so, we examine whether the indemnity provision was sufficiently particular to meet the requirements of [Workers’ Compensation Law §] 11… . Trombley v Socha…, 516943, 3rd Dept 1-9-14

 

Question of Fact Whether Wife of Decedent Had Abandoned Decedent

The Third Department determined that a question of fact had been raised about whether decedent’s wife had abandoned decedent such that she should be disqualified as surviving spouse:

A person may be disqualified from inheriting from his or her deceased spouse where the surviving “spouse abandoned the deceased spouse, and such abandonment continued until the time of death” (EPTL 5-1.2 [a] [5]).  The party asserting abandonment bears the burden of establishing that the surviving spouse departed from the marital abode and that such departure was both “unjustified and without the consent of the other spouse” ,,, .  In determining whether one spouse has abandoned the other, a court employs the same standards as are applied in the context of an action for a separation or divorce based on abandonment … . Matter of Yengle…, 516840, 3rd Dept 1-9-14

 

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