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THE JUDGE DID NOT INCLUDE FINDINGS OF FACT IN THE SORA RISK-ASSESSMENT ORDER; THE ATTORNEY GENERAL WAS NOT NOTIFIED OF DEFENDANT’S CONSTITUTIONAL ARGUMENTS; ORDER REVERSED (THIRD DEPT).

The Third Department, reversing County Court, determined County Court’s order failed to included the required findings of fact. In addition, the Attorney General should have been notified of defendant’s constitutional arguments:

County Court’s order failed to set forth its findings of fact and conclusions of law as required by Correction Law § 168-n (3). The March 2022 order states that at a hearing held on an unspecified date, the court “set out its findings of fact . . . which support the assignment of points for each risk factor.” No such findings are set forth in the order and, if placed on the record at the hearing, no hearing transcript is contained in the record. Absent any record findings of fact and conclusions of law by the court, this Court is precluded from conducting a meaningful appellate review of the assessment of points and defendant’s risk level classification. As such, the matter must be remitted … . Further, to the extent that defendant raises direct constitutional challenges to certain portions of Correction Law § 168, as set forth in his memorandum submitted to County Court, the record is devoid of any indication that the Attorney General was timely notified of such challenges or whether the court ruled on any of the issues raised. In view of the foregoing, County Court’s March 30, 2022 order is reversed and the matter remitted for further proceedings. People v Kelsey, 2023 NY Slip Op 06186, Third Dept 11-30-23

Practice Point: The Correction Law requires that an order in a SORA risk-level proceeding include findings of fact.

Practice Point: Where a defendant raises constitutional arguments in a SORA risk-level proceeding, the Attorney General must be notified.

 

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THE DENIAL OF PETITIONER-INMATE’S RIGHT TO CALL WITNESSES REQUIRED ANNULMENT OF ONE MISBEHAVIOR DETERMINATION AND EXPUNGEMENT OF ANOTHER (THIRD DEPT).

The Third Department annulled one misbehavior determination and expunged another because petitioner was denied his right to call witnesses:

… [The Hearing Officer improperly denied petitioner’s request to call as a witness one of the correction officers who was present during the search of petitioner’s cell and endorsed the second misbehavior report (see 7 NYCRR 254.5). Given the passage of time, respondent does not seek a rehearing and requests that the determination in relation to the second misbehavior report be annulled.

… [T]he determination in relation to the first misbehavior report must also be annulled on the ground that petitioner was improperly denied his right to call a witness. The record reflects that petitioner, who denied the assault and claimed he was being set up, requested to call as a witness the alleged victim of the assault. Although there was a discussion at the hearing that the alleged victim would have to agree to testify, there is no indication that the alleged victim refused to testify or that the Hearing Officer made any effort to procure him as a witness. “[W]here the record does not reflect any reason for the witness’ refusal to testify, or that any inquiry was made of him [or her] as to why he [or she] refused or that the [H]earing [O]fficer communicated with the witness to verify his [or her] refusal to testify, there has been a denial of the [incarcerated individual’s] right to call witnesses as provided in the regulations” (… see 7 NYCRR 254.5). As we view the unexplained outright denial of a witness commensurate to the denial of petitioner’s constitutional right to call witnesses, expungement rather than remittal for a new hearing is the appropriate remedy … . Matter of Diaz v Annucci, 2023 NY Slip Op 06187, Third Dept 11-30-23

Practice Point: In prison misbehavior proceedings the erroneous or unexplained denial of an inmate’s right to call witnesses is reversible error.

 

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THE MAJORITY AFFIRMED DEFENDANT’S CONVICTIONS FOR TWO SEPARATE MURDERS WHICH WERE TRIED TOGETHER; A TWO-JUSTICE DISSENT ARGUED THE TWO PROSECUTIONS SHOULD HAVE BEEN SEVERED BECAUSE OF THE WEAKNESS OF THE EVIDENCE AND THE PROBABILITY THE JURY WOULD NOT CONSIDER THE EVIDENCE OF EACH MURDER SEPARATELY (THIRD DEPT).

The Third Department affirmed defendant’s convictions over a two-justice dissent arguing that the two charged murders should have been tried separately:

Defendant argued that the People had joined “two underwhelming cases” in hopes that the jury would be more likely to convict a “common suspect.” In opposing the motion, the People argued that the counts in the indictment were properly joinable pursuant to CPL 200.20 (2) (c) and, among other things, the People planned to call two incarcerated individuals who were housed with defendant and to whom defendant made certain admissions. At trial, both of the incarcerated individuals and the medical examiner, among others, provided testimony relevant to each of the two victims. Defendant’s motion was facially devoid of any good cause showing. * * *

From the dissent:

… [T]he People chiefly relied on circumstantial evidence, the proof linking defendant to either murder is not overwhelming, the two incidents that form the basis of these charges took place 2½ years apart and there was no unique modus operandi to link the commission of the crimes to defendant … . Further, a review of the record demonstrates that the quantum of evidence relating to each incident was not substantially similar but, rather, proof relating to the second murder is significantly more abundant in quantity and significant in scope. Despite County Court’s instruction to the jury to consider the evidence separately, there was a substantial likelihood that the jury “aggregate[d] the evidence relating to each incident” … , as it is much more likely that the jury would focus on the abhorrent common nature of the crimes than to focus on the fundamental differences of proof … . People v Mero, 2023 NY Slip Op 06000, Third Dept 11-22-23

 

IF THE PEOPLE WERE AWARE OF DEFENDANT’S LOCATION OUT-OF-STATE AND DID NOT EXERCISE “DUE DILIGENCE” IN SECURING HER RETURN TO NEW YORK THE SPEEDY TRIAL CLOCK WOULD NOT STOP RUNNING BASED SOLELY ON HER ABSENCE; HEARING REQUIRED (THIRD DEPT).

The Third Department, reversing County Court, determined defendant had raised questions of fact whether the People were aware of her location in Virginia between her indictment in 2013 and her return to New York in 2018. County Court, therefore, should have held a hearing on her “speedy trial” motion to dismiss. If the People were aware of her location, and did not exercise “due diligence” to secure her presence in New York, the speedy trial clock would not have been stopped based solely on defendant’s absence from the state:

“Having charged defendant with a felony, the People were required to be ready for trial within six months of the filing of the first accusatory instrument, here the felony complaint[s]” issued on September 3, 2013 … . As defendant consistently asserted her speedy trial rights, and the People did not announce readiness for trial until October 3, 2018, it was incumbent upon the People “to show that any delay beyond the statutory maximum should be excluded” … . The People primarily attempted to do so by relying upon CPL 30.30 (4) (c) (i), which renders “the period of delay resulting from [defendant’s] absence or unavailability” excludable, arguing that defendant had absconded after the shooting and remained unavailable until her arrest on August 30, 2018. Absence in that context means that the defendant’s “location is unknown and he [or she] is attempting to avoid apprehension or prosecution, or his [or her] location cannot be determined by due diligence,” while unavailability occurs “whenever [the defendant’s] location is known but his [or her] presence for trial cannot be obtained by due diligence” … . Notably, “[a]bsent a demonstration of ‘prosecutorial diligence in locating the defendant and/or securing his [or her] presence,’ the mere fact that the defendant was in another jurisdiction when the action was commenced does not entitle the People to exclude the time” … . People v Pittman, 2023 NY Slip Op 06001, Third Dept 11-22-23

Practice Point: The defendant presented documentary evidence demonstrating the People were aware of her location out-of-state and did not exercise “due diligence” in securing her return to the state for five years. She was entitled to a hearing on her “speedy trial” motion to dismiss.

 

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ALTHOUGH DEFENDANT WAS IN A PRISON AS A VISITOR WHEN THERE WAS A CANINE ALERT TO DRUGS ON HER PERSON, THE CIRCUMSTANCES WERE SUCH THAT ANY QUESTIONING SHOULD HAVE BEEN PRECEDED BY THE MIRANDA WARNINGS; A REASONABLE PERSON WOULD NOT HAVE FELT FREE TO LEAVE; BECAUSE THEY WERE CLOSE IN TIME, BOTH HER ORAL STATEMENT AND HER POST-MIRANDA WRITTEN STATEMENT SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT). ​

The Third Department, reversing County Court, determined the defendant, who, as a visitor in a prison, was taken aside by an investigator after a canine alert to the presence of drugs on her person, was subjected to “custodial interrogation” requiring suppression of her admission to having drugs and her subsequent written statement:

… [W]hen the canine alerted, the metal door that defendant had just passed through was closed and could only be opened by a security officer. In view of this particular setting, a reasonable person innocent of wrongdoing would not have felt that he or she was free to leave.

… [T]aking into account that the investigator took defendant aside because a canine had just alerted, as well as the purpose of having a canine at a security checkpoint, the investigator’s inquiry of defendant as to why she thought the canine alerted was not merely investigatory or a request for pedigree information. Rather, it was accusatory and designed to elicit an incriminating response. Under these particular circumstances, defendant made the initial oral statements in a custodial setting, thereby requiring Miranda warnings. In the absence of such warnings, the initial oral statements should have been suppressed … .

As to the written statement, it was given after Miranda warnings were issued. To that end, “where 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” … . The record reveals that defendant was interviewed by the same person and in the same room, that she gave her written statement almost immediately after the investigator’s initial inquiry as to why she thought the canine alerted and that the whole process took less than 30 minutes without any breaks. Accordingly, the written statement should have been suppressed as being tainted by the improper questioning by the investigator … . People v Kelly, 2023 NY Slip Op 06003, Third Dept 11-22-23

Practice Point: Although not always the case re: a visitor in a prison, here the circumstances warranted finding that defendant was “in custody” when she was asked a question by a prison investigator after a canine alert to drugs on her person. Because the question preceded the Miranda warnings, her statement should have been suppressed.

Practice Point: Here defendant’s post-Miranda written statement, made 30 minutes after her unwarned oral statement, should have been suppressed.

 

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THE CONCLUSIONS OF THE PEOPLE’S ACCIDENT-RECONSTRUCTION EXPERT (WHO WAS NOT CALLED TO TESTIFY AT TRIAL) WOULD HAVE HAD AN IMPACT ON THE CONCLUSIONS DRAWN BY THE DEFENSE ACCIDENT-RECONSTRUCTION EXPERT; WITHHOLDING THE EVIDENCE FROM THE DEFENSE WAS A BRADY VIOLATION REQUIRING REVERSAL AND A NEW TRIAL (THIRD DEPT).

The Third Department, reversing defendant’s vehicular homicide and manslaughter convictions and ordering a new trial, determined expert opinion evidence constituted Brady material which was wrongfully withheld from the defense. The People’s accident-reconstruction expert in question, who did not testify at the trial, was named Pinzer. The defense accident-reconstruction expert, named Silver, testified in the CPL 440 hearing that his opinion would have been influenced by Pinzer’s findings. The driver lost control of the car which flipped several times. The defendant survived and the other occupant was ejected from the car and died. The withheld expert evidence called into question various aspects of law enforcement’s investigation of the accident, the speed of the car at the time of the accident, for example:

Silver … testif[ied] at the hearing that, although knowledge of [Pinzer’s conclusions] would not have changed his ultimate conclusion as to who was operating the vehicle, it did have a direct and significant impact on his methodology and findings. For example, had he known that the data was corrupted, he would have performed his analysis differently and explained to the jury why law enforcement’s data was unreliable; he would have also been able to rebut any challenge to his credibility for the use of multiple formulas and his own data. He also averred that, in light of the new information regarding the data, his trial testimony as to the vehicle’s speed prior to the accident — 55 to 65 miles per hour — was overstated. * * *

… [I]n view of the character of the withheld information here, the misleading disclosure that was made, the manner in which the prosecutor elected to act on Silver’s testimony of defendant’s innocence and the circumstantial nature of this case, we agree with defendant that Pinzer’s opinion … must be considered favorable to the defense. * * *

… Pinzer was an arm of the prosecution, acting on the government’s behalf, and the People had a duty to learn of his opinion, which “directly relates to the prosecution or investigation of . . . defendant’s case” … . * * *

… [T]here was no reasonable possibility that the People’s failure to disclose Pinzer’s opinion did not impact the verdict … . The prosecutor’s cross-examination of Silver and his statements in summation — which sought to both bolster the legitimacy of police work that he should have known was faulty and impugn the credibility of Silver for not exclusively relying upon same — “compounded the prejudice” to defendant … . People v Hoffman, 2023 NY Slip Op 06004, Third Dept 11-22-23

Practice Point: Here, in this vehicular homicide case, the People did not disclose the conclusions reached by their accident-reconstruction expert, who was not called to testify at trial. The defense accident-reconstruction expert would have changed some of his conclusions had he been aware of the People’s expert’s analyses. Withholding the People’s expert’s findings from the defense was a Brady violation requiring reversal and a new trial.

 

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A POOR-QUALITY VIDEO SHOWED THE SHOOTING AND THE SHOOTER GETTING INTO THE DRIVER’S SEAT OF THE CAR WHICH WAS STOPPED AFTER A CHASE; THERE WAS NO EVIDENCE ANY OF THE OCCUPANTS GOT OUT OF THE DRIVER SIDE OF THE CAR; TWO OF THE OCCUPANTS HAD CLOTHES SIMILAR TO THOSE WORN BY THE SHOOTER; DEFENDANT’S CONVICTION WAS SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE; BUT DEFENDANT’S CONVICTION WAS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT),

The Third Department, reversing defendant’s manslaughter conviction, determined the verdict was not supported by the weight of the evidence. The shooting was captured on a video and showed the shooter getting into the driver’s seat of a vehicle which drove off. After a chase the vehicle was stopped and three persons got out of the car. There was no evidence anyone got out of the car on the driver’s side. The defendant was found by the police lying in the grass near the car. Two of the people who got out of the car were dressed in clothes similar to those seen in the poor-quality video of the shooting:

“[A]s an implicit but necessary element of each and every crime, the People must prove beyond a reasonable doubt the identity of the defendant as the person who committed the crime” … . Viewing the evidence in a neutral light, the People failed to prove beyond a reasonable doubt that defendant was the shooter. The conviction must therefore be reversed as the verdict is against the weight of the evidence … . People v Jones, 2023 NY Slip Op 06007, Third Dept 11-22-23

Practice Point: This decision demonstrates the difference between “legally sufficient evidence,” which will get by a motion for a trial order of dismissal, and a “weight of the evidence” analysis which results in reversal despite the presence of “legally sufficient evidence.” Two occupants of the car which was involved in the shooting had clothes similar to the clothes worn by the shooter as seen in a poor quality video. Although the driver was the shooter, there was no evidence anyone got out of the driver’s side of the car after it was stopped. The People therefore did not prove the identity of the shooter beyond a reasonable doubt. The conviction was supported by “legally sufficient evidence.” But the conviction was reversed as “against the weight of the evidence.”

 

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COUNTY COURT DID NOT CORRECTLY APPLY THE CRITERIA OF THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) WHEN CONSIDERING DEFENDANT’S MOTION FOR RESENTENCING; THE THIRD DEPARTMENT DETERMINED DEFENDANT WAS ENTITLED TO A MORE LENIENT SENTENCE UNDER THE ACT AND RESENTENCED HER TO TIME SERVED (THIRD DEPT).

The Third Department, reversing County Court and resentencing defendant to time served, determined County Court did not comply with the criteria of the Domestic Violence Survivors Justice Act (DVSJA) when considering defendant’s motion for resentencing under the act. Defendant had been convicted of killing her paramour and was sentenced to ten years in prison:

The DVSJA, in recognition of the profound and pervasive trauma suffered by victims of substantial abuse, permits courts to impose more lenient sentences in certain cases where a victim of domestic violence commits crimes against his or her abuser or as a result of that abuse … . * * *

… [T]he court misapplied the language of Penal Law § 60.12 (1) (a) by requiring that the abuse occur “at the time of the instant offense.” Indeed, such temporal argument would inherently invoke the defenses of duress or justification, however, the legislative history makes it clear that the DVSJA was enacted to address shortfalls in each of those defenses, “as victims of abuse may not be psychologically or socially capable of invoking such defenses at the time of their trials, due to their victimization and its impact on them” … . * * *

… County Court found that the abuse suffered by defendant “was a factor” in her commission of the crime, but failed to conclude as to whether it was a “significant contributing factor” as is required under the statute. Moreover, the court did not articulate a factual basis for its finding in this regard. * * *

… [T]he DVSJA, Penal Law § 60.12 (1) (c) expressly provides that a determination as to whether a standard sentence would be “unduly harsh” is to be made in consideration of the “the nature and circumstances of the crime and the history, character and condition of the defendant.” Although the court’s written decision notes defendant’s age, lack of criminal history and the fact that she is the mother of two children, no discussion is devoted to these circumstances or what weight they should be afforded in considering her resentencing application. People v Liz L., 2023 NY Slip Op 06008, Third Dept 11-22-23

Practice Point: The criteria for resentencing under the Domestic Violence Survivors Justice Act (DVSJA) discussed in some detail.

 

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THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO SCHEDULE VISITATION (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined the judge should not have delegated the court’s authority to schedule visitation:

… Family Court improperly granted the grandfather and the father of the older child sole authority to determine the dates for at least four consecutive days of visitation in the months of July and August. Allowing the grandfather and the father of the older child to determine periods of summer visitation for the children without the agreement of the mother, the custodial parent, constitutes “an improper delegation of authority” … . In view of the sparse state of the record, as well as the passage of time since the entry of the orders on appeal, we remit solely for the purpose of Family Court setting a schedule for the summer visitation. Matter of Daniel RR. v Heather RR., 2023 NY Slip Op 06011, Third Dept 11-22-23

Practice Point: Here the court should not have delegated the authority to schedule visitation to grandfather and father without the agreement of mother, the custodial parent.

 

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THE CLAIM OF SEXUAL ABUSE UNDER THE CHILD VICTIMS ACT MET THE PLEADING CRITERIA OF THE COURT OF CLAIMS ACT; THE FOUR-YEAR TIME FRAME WAS SUFFICIENTLY PRECISE; THE FACTS ALLEGED SUFFICIENTLY STATED THE NATURE OF THE DEFENDANT’S NEGLIGENCE (THIRD DEPT).

The Third Department, reversing the Court of Claims, in a full-fledged opinion by Justice Mackey, determined claimant sufficiently stated a sexual-abuse claim under the Child Victims Act:

The reality is that “in matters of sexual abuse involving minors, as recounted by survivors years after the fact, dates and times are sometimes approximate and incapable of calendrical exactitude” … .Where sexual abuse is alleged to have occurred several decades ago “when the claimant was a child, it is not reasonable to expect the claimant to be able to provide exact dates when each instance of abuse occurred, nor is it required” … . Under the particular circumstances of the case before us, where the events are alleged to have occurred several decades ago, when claimant was a child, we conclude that the four-year time frame pleaded is sufficient … . Accordingly, the Court of Claims should not have granted defendant’s motion to dismiss on the ground that the claim failed to adequately state the time when the claim arose.

Also, contrary to defendant’s contention, claimant sufficiently states the nature of his claim. He alleges that between 1986 and 1990, when he was a minor, he was raped and sexually abused by numerous men in multiple incidents while he was lawfully at the premises; that the abuse was perpetrated “by both employees of [defendant] as well as members of the general public”; that the “majority of these incidents occurred at the premises, more specifically in the bathrooms, stairwells, tunnels, boiler room, and Kitty Carlisle Hart Theater”; that many of the perpetrators “were agents, servants and/or employees of [defendant]”; and that “[t]hese men were known among the community and the children as a sexual predator [sic] yet allowed unfettered access to children.” Claimant also alleges that abusers used their positions of power and authority provided by defendant “to be able to sexually abuse [him] and other boys” and that their abuse “was open and obvious.” Claimant further asserts that defendant negligently retained an abuser “in his position as teacher, coach, and counselor,” despite notice of his propensities, thereby allowing his abuse of claimant and other boys to continue. We conclude that these allegations are sufficient to provide defendant with “an indication of the manner in which . . . claimant was injured and how [defendant] was negligent” … , and thus “defendant cannot reasonably assert that it is unaware of the nature of the claim” … . Because the claim is sufficiently detailed to allow defendant “to investigate the claim and to reasonably infer the basis for its alleged liability” … , it satisfies the nature of the claim requirement of Court of Claims Act § 11 (b). Wright v State of New York, 2023 NY Slip Op 06013, Third Dept 11-22-23

Practice Point: The allegations of sexual abuse within a four-year time frame met the pleading criteria of Court of Claims Act section 11 (b) in that the allegations were sufficiently detailed to determine the nature of the claim and to allow investigation of the claim.

 

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