Friday, December 12, 2008

Rape Conviction Overturned for Lack of Specificity

This week, in People v Bennett (2008 NY Slip Op 09811 [2d Dept 12/09/08]), the Second Department overturned a rape conviction when the second-grade victim could only give a nine-month window for the date of the incident. The Court explained that while
a per se (nine-month) bar does not apply, a significantly lengthy period is a factor to be considered, with "proportionally heightened scrutiny" given to whether the People's inability to provide more precise times can be justified as against the important notice rights of the defendant (People v Sedlock, 8 NY3d at 539; People v Watt, 81 NY2d 772, 775).

At trial, the victim testified that the two incidents occurred about two weeks apart when she was in the middle of second grade. The first incident occurred when her mother was at the grocery store with the victim's brother. The second incident occurred when the mother took the brother to the doctor. The People should have inquired as to when the mother took the victim's brother to the doctor and/or should have sought to obtain the brother's medical records to narrow the time frame of the crimes as alleged. The defendant's ability to prepare a defense was further stymied by the fact that the victim testified that the incidents occurred in the middle of her second grade school year, which would have been during the winter, but the amended bill of particulars provided that the incidents occurred when the weather was warm. Under these circumstances, when the time period charged, namely seven months, approaches the nine-month period found to be per se unreasonable in People v Beauchamp (74 NY2d 639; see People v Sedlock, 8 NY3d at 538), the People are subjected to "proportionally heightened scrutiny" as to whether their inability to provide more precise times is justified (id at 539). There is no indication that the People inquired of the mother or of the doctor of the victim's brother regarding as to when the brother was treated.

As Assistant Monroe County Public Defender David Abbatoy (who brought Bennett to our attention) has noted, Bennett and the cases cited within make clear that the judge should not simply rely on the prosecutor's representations regarding the victim's intelligence,etc. The government should demonstrate its inability at a hearing. The judge should then make an independent determination as to whether more precise notice is required based on the complainant's age, etc. This should occur at a hearing with sworn testimony from the complainant. Perhaps we can call it a "Sedlock Hearing."

Sunday, December 7, 2008

Second Circuit Recognizes Importance of Defendants' Right To Examine Prosecution Witness's Racism

In two cases, the Second Circuit Court of Appeals issued rulings emphasizing the rights of defendants to cross-examine prosecution witnesses regarding evidence of their racial or ethnic bias.In Brinson v Walker (--- F.3d ----, 2008 WL 4890153 [2nd Cir 11/13/08])the court granted habeas corpus relief and vacated a New York state robbery conviction whee the New York trial judge precluded the black defendant from presenting evidence (both through cross examination and by extrinsic evidence) that the complainant harbored strong racial bias towards blacks. The Court first reviewed the evidentiary right to present evidence or bias and concluded that
where the racial bias sought to be exposed is of sufficient intensity that it is reasonably likely to result in the falsification of the witness's testimony against the accused, a preclusion of cross-examination on the ground that racial bias is general and not specifically directed against the defendant is an unreasonable application of Supreme Court decisional law.

Applying the five factor test set forth by the Supreme Court in Delaware v. Van Arsdall 475 U.S. 673 the Court ruled that the error was not harmless, given the critical role of the complainant's testimony and the absence of other means to establish this bias.

Similarly, in U.S. v. Figueroa --- F.3d ----, 2008 WL 4911158 [2nd Cir 11/18/08], the Court held that an Hispanic defendant's constitutional right to confrontation was violated when the federal district court judge precluded cross-examination of a prosecution witness about the witness's swastika tattoos. The Court explained a person choosing to have swastika tattoos tends to suggest that the person holds racial, religious, or ethnic biases and this evidence of bias is relevant and admissible under Federal Rule of Evidence 402. However, given the other evidence of guilt, the Court found this erroneous violation of the right to confrontation to be harmless beyond a reasonable doubt.

Tuesday, December 2, 2008

Molineux and Multiple Count Prosecutions

In People v Giles (2008 NY Slip Op 09433 [12/2/08]), the Court of Appeals issued an important decision regarding the application of Molineux. Specifically the Court held that even when evidence of other crimes may be relevant and admissible to some charged counts, the trial court in admitting such evidence is required to give that limiting instructions advising the jury that while the evidence may be relevant to some charges, it must not be considered regarding the other counts.

While the Court approved introduction of detailed evidence regarding how stolen property the defendant possessed came to be stolen, it disapproved the use of such evidence to show that unrelated activity was an attempted burglary. In reversing some counts, the court found that possession of the proceeds of prior burglaries "has no bearing other than to show that defendant is of a criminal bent or character and thus likely to have committed the crime charged" with regard to a currently charged attempted burglary. Thus, the Court held that the trial court
erred by failing to issue a limiting instruction to cure the potential
prejudicial effect of the evidence regarding the uncharged burglaries on the attempted burglary and possession of burglar's tools counts. Supreme Court should have advised the jury that it could consider the evidence for the possession of stolen property counts, but that it could not consider the prior burglaries with respect to the attempted burglary and possession of burglar's tools counts.

The Court also arguably acknowledged, sub silentio, that the viability of
the persistent felony statute is uncertain (it declined to reach the
issue), even though the Court of Appeals has consistently upheld the
statute against Apprendi (Apprendi v New Jersey, 530 US 466 [2000) claims
(see People v Rivera, 5 NY3d 61 [2005]. The post-Rivera decision of the
United States Supreme Court in Cunningham v California, 549 US 270 [2007] suggests that Rivera might not be the last word on the constitutionality of the New York persistent sentencing law.

Tuesday, November 25, 2008

Preservation of Error, Sandoval, and T.O.D. Motions

In People v Hawkins (2008 NY Slip Op 09254 [11/25/08]) the Court of Appeals provided counsel with further guidance as to what is required to preserve errors for review as a matter of law. Unfortunately, as detailed below, the Court's decision appears to raise as many questions as it answers.

The statutory requirements of preservation of error are set forth in Criminal Procedure Law (CPL) 470.05[2], which provides in relevant part:

For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when . . . a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.

CPL 470.05 was changed to its current form to do away with overly technical preservation requirements that served to bar appellate courts from hearing substantive issues. (See Practice Commentary to CPL 470.05 [1994 Main Volume] ["The last sentence, moreover, dispenses with the necessity of any specific protest where a ruling or instruction is sought and not given as requested. In short, a defendant who, for example, fruitlessly requests the court to instruct the jury to disregard a certain item of evidence has, by the very request, adequately raised a question of law for appeals purposes regardless of whether he subsequently registers an exception or other protest to the court's failure to give the instruction."].)

Thus, one might reasonably have thought that there is no longer a preservation requirement in New York law that an attorney take exception upon the denial of requested relief. One would be wrong. Despite counsel having requested in pre-trial motions that the People be prohibited from cross-examining defendant regarding prior convictions and bad acts, the Court of Appeals ruled in Hawkins that "defendant's Sandoval objection is unpreserved, as defendant made no objection to the court's ruling." This ruling permitted the People to cross-examine Mr. Hawkins with respect to the existence, but not the underlying facts, of two of his four prior burglary convictions. Counsel did not take exception to this ruling which was different than the relief he had requested.

The Hawkins Court neither cited CPL 470.05 nor explained how to reconcile this holding with that statute. It is now clear than an exception is required for preservation for review of a so-called Sandoval compromise ruling, even when that was not the relief requested by counsel.

The Sandoval ruling was not the primary preservation issue before the Court in Hawkins. Rather as previously discussed here the issues that divided the Fourth Department in Hawkins was what language is required, pursuant to People v Gray (86 NY2d 10), in a T.O.D. motion to raise and preserve a claim that the People's proof was legally insufficient.

The Court held that when Hawkins' counsel objected that the People "failed to prove that Mr. Hawkins acted with Depraved Indifference Murder,"
that motion did little more than argue that the People failed to prove the essential elements of depraved indifference murder. The objection could have been directed at either the reckless mens rea element, or at the objective circumstances evincing a wanton, depraved indifference to human life, and did not alert the trial court to the argument now being advanced: that defendant acted intentionally, not recklessly, in killing the victim. Defendant did not preserve that legal question for our review.

If the proof was legally insufficient and Gray clearly requires more than what was done, was counsel ineffective for not preserving the issue? Clearly there could be no tactical nor strategic reason for such failure.

Tuesday, November 18, 2008

SORA Risk Assessment Guidelines Strictly Construed

In People v Aldrich (2008 NY Slip Op 08916 [4th Dept 11/14/08])the Court lowered a defendant;s risk level upon concluding that the lower court had incorrectly assessed 30 points. First, the Court held "that the court erred in assessing 25 points for attempted sexual intercourse because there was no evidence of actual sexual intercourse between defendant and the victim as required to assess points under the category of 'Sexual contact with victim.'" Additionally, it was error for the court to assess 5 points under the category of "Release with supervision" where the defendant was released into the community under the supervision of "a probation or parole officer who oversees a sex offender caseload or who otherwise specializes in the management of such offenders" should not be assessed any points for release under supervision.

When Can A One On One Killing Support A Depraved Indifference Murder Conviction?

The Court of Appeals has held that "[a] defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances" (People v Suarez, 6 NY3d 202, 212. But what those circumstances areremains unclear.

In People v Lagasse (2008 NY Slip Op 08799 [4th Dept 11/14/08]) the Court held that the evidence was legally insufficient to prove depraved indifference murder in a case involving a one on one beating where the decedent was left beaten, but alive and then died. As explained below, the Court found that the facts were consistent with intentional conduct, and, thus, inconsistent with depraved murder.

The forensic pathologist testified that the 61-year-old victim died from a subdural hematoma and brain injuries caused by blunt-force trauma that was consistent with being struck by fists. Defendant testified at trial that he had punched the victim in the head several times following an argument over the victim's sexual abuse of defendant 30 years earlier, but defendant further testified that, by the time he left the victim's house, he and the victim had reconciled and the victim was "fine." The evidence presented by the People at trial establishes that a struggle had occurred, there were blood spatters in the bathroom and a significant pool of blood on the kitchen floor, and the police found the victim's body face down in a small pool of blood on the living room floor, between the couch and a coffee table. We conclude that the evidence does not support the conclusion that the victim's death was caused by abandoning a helpless and vulnerable individual in circumstances in which he or she is likely to die (citations omitted), nor was there evidence of "torture or a brutal, prolonged . . . course of conduct against a particularly vulnerable victim" (citations omitted). "Whether he intended to kill [the victim] or merely to cause [him] serious injury——and either of these findings, supported by sufficient evidence, might have been properly made by the jury——defendant's actions in no way reflected a depraved indifference to [the victim's] fate" (People v Suarez, 6 NY3d at 216).

On the same day, in People v Jeffries (2008 NY Slip Op 08799 [4th Dept 11/14/08]) a different panel of the Fourth Department (with two of the same judges) held that proof that a defendant lifted a baby and threw her head first into the floor of the porch, causing severe head injuries that resulted in the child's death is legally sufficient to support the conviction for depraved murder. The Court rejected Jeffries' argument that the evidence establishes his manifest intent to kill or to cause serious physical injury and thus fails to establish the culpable mental state for depraved indifference murder. "Rather, the evidence establishes that defendant acted in a fit of rage directed at the child's mother, and the jury could have reasonably inferred that, when he threw the child, 'defendant consciously disregarded the risk of serious injury or death to the child, i.e., that he acted recklessly' (People v Jamison, 45 AD3d 1438, 1439, lv denied 10 NY3d 766)".

Thus the Court held that throwing a baby to the ground, causing massive and fatal injuries, is consistent with reckless conduct, but beating an adult and leaving him injured and bleeding is not.

When Is a Win Not a Win?

In People v Backus (2008 NY Slip Op 08772 [4th Dept 11/14/2008)] the defendant won on his claim that the consecutive sentence imposed was illegal. However, a panel of the Fourth Department divided 3-2 as to the appropriate remedy, with the majority holding that on remitter of the matter to County Court to resentence defendant the court should "entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety." Not so good for Mr. Backus.

Specifically, Backus appealed from a judgment convicting him, upon his plea of guilty, of two counts of vehicular assault in the second degree (Penal Law § 120.03 [1]) and one count of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), and sentencing him to two one-year concurrent definite terms for vehicular assault, and a one-year definite term for driving while intoxicated, to be served consecutively. Since the offense of driving while intoxicated is a material element of the offense of vehicular assault in the second degree and thus the sentence was illegal insofar as County Court imposed consecutive sentences. As set forth below the two dissenting Justices would have corrected the illegality by ordering the sentences to run concurrently:

As noted by the majority, the sentence in this case was imposed pursuant to a plea agreement, but we have in the past modified a judgment on the ground that the bargained-for sentence was illegal because consecutive sentences were not permissible and have directed that the sentences run concurrently (see People v Taylor, 197 AD2d 858). There is no sentence that the court could impose here that would result in the bargained-for sentence, i.e., two one-year definite terms of imprisonment. Defendant has already served a one-year definite term and, "when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced" (CPL 430.10). Although it is implicit in CPL 430.10 that a court has the power to correct an illegal sentence even if the defendant has begun serving it, a court may not alter a sentence that "is in accordance with law" once it is being served (id.; see People v Carpenter, 19 AD3d 730, 732, lv denied 5 NY3d 804). In our view, the illegality of the sentence was in directing the one-year definite sentence for driving while intoxicated to run consecutively to the one-year concurrent definite sentences for vehicular assault (see People v Davis, 12 AD3d 237, 238). That defect is corrected by directing that the sentences run concurrently (see id.).

Disclosure After Two Years Is Not A Prompt Outcry

What constitutes a prompt outcry permitting the admission of hearsayis a relative concept dependent on the facts. In People v Workman (2008 NY Slip Op 08801 [4th Dept 11/18/08]) the Court held that the trial court erred in admitting in evidence the testimony of the boyfriend of the victim concerning her disclosure of the sexual abuse two years after the last incident of abuse. The court admitted the testimony as a prompt outcry, inasmuch as "evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place" (People v McDaniel, 81 NY2d 10, 16). The Court held that
the victim's disclosure in this case was not prompt. As noted, the victim made the disclosure two years after the last incident of abuse, and the record establishes that she had been living away from defendant for a period of time before making the disclosure and had not received any threats that prevented her from disclosing the abuse.

This erroneous admission was held to be harmless because his testimony mirrored evidence [that was] disclosed to the jury without objection.

On a brighter note for Mr. Workman, the Court, sua sponte, as a matter of discretion in the interest of justice, concluded that the evidence was legally insufficient to support the conviction of course of sexual conduct against a child in the first degree under Penal Law § 130.75 (1) (a). That Penal Law section requires evidence that, over at least a three-month period, defendant engaged "in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child [*2]less than eleven years old . . . ." The Court explained that there was no evidence that defendant engaged in any act other than forcible touching before the victim was 11 years old and that the conviction on that count, thus, must be reversed.

Monday, November 17, 2008

Vindictiveness In Sentencing After Retrial

In People v Young(94 NY2d 171) the defendant had originally received an aggregate sentence of 45 years to life, including a sentence of 2-4 years on a count of criminal possession of stolen property. On retrial he was acquitted of a all counts other than the stolen property charge for which he was sentenced, as a persistent felon, to 25 years to life. This increase from 2-4 years to 25 years to life was held not to be presumptively vindictive.

The Young Court held that in determining whether the presumption of vindictiveness applies to a sentence imposed after a retrial,where a defendant receives a lesser over-all sentence following retrial, but a greater sentence on an individual count
the presumption arises only if the circumstances evince a reasonable likelihood that the greater sentence on the individual count was the result of vindictiveness (citations omitted). While trial courts in New York are required to impose discrete sentences for each individual count (see, CPL 380.20), we cannot ignore the reality that, in cases involving multiple counts, trial courts may view the individual sentences as part of an integrated whole. A trial court fashions its sentence on a “delicate balancing” of factors, including the defendant's background, criminal history and prospects for rehabilitation, in order to achieve a sentence that is appropriate both for the defendant and for the specific crimes of which the defendant was convicted(Citation omitted. Where, as here, a trial court adjusts the original sentence after retrial in order to reflect that balance, a presumption of vindictiveness will not arise.

Citing Young, the Appellate Division, Fourth Department, in People v Rogers (2008 NY Slip Op 08827 [4th Dept 11/14/08], found that the presumption of vindictiveness applied under facts very similar to those in Young.

Following his first trial, Mr. Rogers was sentenced to a determinate term of imprisonment of 20 years on the robbery count and an indeterminate term of imprisonment of 20 years to life on the murder count, but he was sentenced to a determinate term of imprisonment of 25 years on the robbery count following the retrial. The Court held that
"The threshold issue in evaluating whether a resentence is vindictive is whether the resentence is more severe than that originally imposed" (People v Cahill, 46 AD3d 1455, 1456; see generally People v Young, 94 NY2d 171, 176-177, rearg denied 94 NY2d 876; People v Van Pelt, 76 NY2d 156, 159-160), and a determinate sentence of 25 years is of course more severe than one of 20 years. Other factors that give rise to a presumption of vindictiveness are that the court imposed a greater sentence following the retrial despite the absence of any new information concerning defendant (see Van Pelt, 76 NY2d at 161), and, although defendant was acquitted of the murder count, the court stated at sentencing that it "felt constrained to impose the sentence because a death was involved." We further conclude that "[t]he record is devoid of any objective information sufficient to rebut the presumption of vindictiveness that arose from the court's imposition of a sentence greater than that imposed after the initial conviction" (People v Jenkins, 38 AD3d 566, 567-568, lv denied 8 NY3d 986).

It is difficult to discern which facts distinguish Rogers from Young.

Saturday, October 25, 2008

What Must Be Shown For A Defendant To Be Entitled To Specific Performance Of A Plea Agreement?

In People v Jenkins (2008 NY Slip Op 07992 [10/23/08]) the Court of Appeals considered who has to prove what in order for a defendant to be entitled to specific compliance of a plea agreement. Specifically who has has the burden of proof of compliance or non-compliance and what does that burden entail? Under what circumstances can a court add additional terms to a plea agreement? By a 6-1 vote, the Court upheld the addition of a term to the plea agreement in a case in which dissenting Judge Pigott writes that
the People did not contest defendant's claim that he was entitled to have the charges dismissed, let alone establish that he was not, nor did the court make such a finding. Indeed, the People never even argued in Supreme Court, the Appellate Division or to this Court that, as of October 2001, defendant had not complied with the terms and conditions of the plea agreement. Rather, the People have consistently argued that Supreme Court properly exercised its discretion in requiring defendant to participate in further services.

Mr. Jenkins pleaded guilty to a drug charge pursuant to a plea agreement permitting him to avoid incarceration upon (1) completing an 18- to 24-month residential drug treatment program at Veritas Therapeutic Community, a Drug Treatment Alternative to Prison (DTAP) program, and completing its aftercare or live-out treatment; (2) completing vocational training including obtaining a General Equivalency Diploma (GED); (3) securing full-time employment and (4) finding "suitable" housing. The plea agreement additionally required defendant to make every court appearance and not be rearrested. The agremtn was that the prosecutor would join in an application for dismissal of the charge upon Jenkins' complettion of these conditions.
Veritas provided regular updates to the court, culminating in letter, two years after the plea, in which Veritas wrote to the court that defendant has completed the two drug treatments programs, has obtained employment. But Vertias also wrote that Jenkins has "unresolved family issues" that would create further problems, if not addressed.
Jenkins moved for dismissal of the charges, alleging compliance with the conditions. The People did not join in, saying that they had not received documentary proof regarding the educational and employment conditions and requested an adjournment to provide the defendant time to submit documentation. The dissent points out that
the court conducted no inquiry and, presumably, made no determination as to whether defendant had, in fact, met all of the conditions of the plea agreement. Significantly, the People made no claim that defendant had not successfully completed the program. Rather, the People requested two to three weeks to respond and sought defendant's cooperation in providing certain documents. The court held an off-the-record discussion at the bench. What exactly was said during this discussion is unknown, but it caused defense counsel to withdraw the motion. What is known is that the parties talked about the "unresolved family issues" identified in the October 11th Veritas letter and that the court adjourned the matter to look into getting defendant "some other support services." Defendant voiced his objection stating, among other things, that he "completed everything there is to complete in this program.

The majority of the Court holds that having withdrawn the motion
Under these circumstances, where defendant had failed to provide satisfactory proof that he completed all of the conditions of his agreement, the People were entitled to an adjournment and not required to join in the motion to dismiss. Neither was Supreme Court compelled to "turn a blind eye" and dismiss this case in the furtherance of justice. To be sure, Supreme Court could not pass favorably on defendant's Clayton motion without evidentiary support demonstrating that he had complied with the terms of the agreement as CPL 210.40 requires the court to articulate on which factors it relies in dismissing an indictment. Affording the trial court this discretion does not, as the dissent maintains, improperly shift the burden of proof from the People to defendant.

By contrast, Judge Pigott, in dissent writes that
Clearly, it was Supreme Court's duty to make sufficient inquiry, at the time of the motion, as to whether defendant had complied with the terms of the plea agreement. I disagree with the majority that defendant's failure to provide documentation regarding the successful completion of the program excused such inquiry by the court; to so hold improperly shifts the burden of proof from the People to the defendant to prove his compliance with the plea agreement- something we have never done. But even assuming the burden was on the defendant, the facts found in this record seem to support his claim. The Court had in its possession monthly progress reports from Veritas, as well as the October 11th letter, indicating that defendant had successfully completed the program: a determination that Veritas was to make under the plea agreement. What remained for the court to determine was whether OSN had approved of his housing and whether defendant had committed any new crimes. The October 11th Veritas letter confirmed that defendant had been residing with his family. OSN never objected to defendant's housing nor his compliance with any of the other terms of the plea agreement during his ]treatment. Indeed, OSN only objected to his housing on October 23, 2001, two weeks after the return date, and the objection was conditional, i.e. defendant had to find another residence if his girlfriend did not attend treatment meetings.
Further, in my view, while well intentioned, Supreme Court erred in adjourning the matter to determine whether family counseling was needed for defendant, and also erred in imposing family counseling as a condition.

Wednesday, October 22, 2008

Challenge to Facial Sufficiency of Accusatory Instrument Not Forfeited By Guilty Plea

In People v Lucas (2008 NY Slip Op 07948 [10/21/08]) the Court of Appeals rejected a broad reading of its holding in People v Cahill (2 NY3d 14 [2003], in which the Court had held that it was impermissible double counting to use the intent to kill to transform the criminal trespass into a burglary in the first degree and to then use the burglary in the first degree to elevate a murder in the second degree to a murder in the first degree. In Lucas the defendant argued that under Cahill the same killing during an abduction could not be the basis of a kidnapping in the first degree charge and a murder in the first charge based on a murder in furtherance of in the course of a kidnapping in the first degree. The Court rejected this argument, holding that
The problem in Cahill was the double counting of one criminal intent. We said that Cahill's "conviction cannot stand because the burglary carried no intent other than to commit the murder" (id. at 62 [emphasis added]). We explained that, in defining first degree murder — a crime which could make a defendant eligible for the death penalty — the Legislature required murder and "[a]n additional aggravating factor — murder 'plus'" (id. at 64). But where "the very same mens rea — the intent to kill" was used to define both the murder and the aggravating factor, the legislative goal of "narrowing rather than expanding the class of defendants eligible for the death penalty" had not been achieved (id. at 64-65). The gist of Cahill is that where only one criminal intent, the intent to kill, is shown, defendant's crime has not been "aggravated" to first degree murder.

That is not true here. Here, the murder defendant committed and the predicate crime that serves as an aggravation arise from two distinct intents — the intent to kill the victim and the intent to abduct him. The intent to abduct aggravated the crime of murder, and defendant is thus a member of that class of murderers whose crime is significantly worse than ordinary murder — "murder plus." It is of no moment that a factual circumstance other than defendant's intent — in this case, the victim's death — is an element of both the murder and the predicate felony. Cahill is satisfied by the showing of a second criminal intent.

Perhaps of more general interest, and certainly of greater help to defendants, is that the Court reaffirmed that an attack of the facial sufficiency of an accusatory instrument survives a guilty plea. Here, Mr. Lucas argued that the facts stated in the indictment do not constitute the crime of first degree murder. The Court held that
This argument attacks the facial sufficiency of the accusatory instrument, and so is not forfeited by defendant's guilty plea (People v Taylor, 65 NY2d 1, 5 [1985])...

Friday, October 17, 2008

Important Decision Regarding Subpoenas and Privilege in Criminal Cases

In a lengthy opinion, the Court of Appeals in People v Kozlowski, 2008 NY Slip Op 07759 [10/16/08], upheld the larceny (and related) convictions of the former CEO Kozlowski and CFO Swartz of Tyco and the fines of $35 and $70 million imposed on Swartz and Kozlowski, respectively. Although this decision rejected the defendants' arguments for a reversal and/or vacateur of the fines, it is likely to be cited more frequently by defendants than by prosecutors.

First, the decision contains a very helpful analysis of the standard for enforcing a third-party subpoena duces tecum which was set forth nearly 30 years ago in People v Gissendanner (48 NY2d 543, 550 [1979]). Under Gissendanner, defendants must proffer a good-faith factual predicate sufficient for a court to draw an inference that specifically identified materials are reasonably likely to contain information that has the potential to be both relevant and exculpatory.

What constitutes a sufficient showing under Gissendanner is often in dispute. In this case, the Court made clear that the standard is not to be set too high. In Kozlowski the the People's case centered on the charge that defendants' bonuses were not approved by Tyco's Compensation Committee or the Board of Directors. Defendants maintained that the bonuses were properly approved through the efforts of either of two directors. Among other things, their subpoena seeks specifically identified statements made by the director-witnesses regarding key issues in this case, including, most notably, "Compensation Events."

The Court held that "Although defendants have certainly not made a robust showing under Gissendanner, we disagree with the People's contention that defendants were simply fishing for "general credibility" evidence." The Court's anaylsis, set forth here, is worth keeping in hand, when a prosecutor claims that the defendant has failed to prove what a requested document actually states:

In meeting the burden for production, defendants need not — and indeed could not — show that director-witness statements are "actually" relevant and exculpatory (see Gissendanner, 48 NY2d at 550. Gissendanner does mandate, however, that they point to specific facts demonstrating a reasonable likelihood that such material may be disclosed and that they are not engaged in a fishing expedition. In applying this standard, we must give due regard to the accused's right to a fair trial (Ritchie, 480 US at 56; Nixon, 418 US at 711).
Here, defendants were not engaged in "general discovery," regarding the director-witness statements. Instead, they identified the specific director-interview notes and memorandum that they sought by referring Supreme Court to Tyco's privilege log. Defendants pointed to undisputed facts, arguing that after the directors were made aware of at least some of defendants' questionable activities through the Boies Schiller investigation, they continued to permit Swartz to exercise substantial authority as the CFO of Tyco until September 11, 2002 — the day before he was indicted — and voted to pay him $50 million in severance just one day after the last of the relevant director interviews. On the basis of these facts, defendants asserted that the "director witnesses . . . did not believe Swartz had engaged in any wrongful conduct and only 'changed their tune' after the District Attorney obtained an indictment."

So how did the defendants lose if they met their burden under Gissendanner? The Court held that there was another hurdle which was not met -- the documents were privileged as trial preparation materials (which may be disclosed "only upon a showing that the party seeking discovery has a substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means") (CPLR 3101 [c], [d] [2]). The Court held that

Although we agree with defendants that the director-witness statements are trial preparation materials and not absolutely privileged, enforcement of their subpoena was directed to the trial court's discretion (citations omitted). In making its discretionary determination that defendants did not establish an inability to "obtain the substantial equivalent" of the facts contained in the director witness interview notes without "undue hardship" (see CPLR 3101 [d] [2], Weinstein-Korn-Miller, NY Civ Prac § 3101.55), Supreme Court relied upon defendants' failure to "explain[] why the defense could not have sought to conduct its own interviews of these witnesses at an earlier time." We cannot say that this conclusion represents an abuse of the trial court's discretion. Defendants made no effort to show any "undue hardship" that would have prevented them from securing their own "substantial[ly] equivalent" interviews with the director-witnesses (see CPLR 3101 [d] [2]). As Tyco pointed out in its reply submission on its motion to quash, defendants "have access to the same witnesses as Tyco does."...(see Hickman v Taylor, 329 US 495, 513 [1947] [production of attorney's account of witness statements is justified only in "rare" cases and is not appropriate when potential for "direct interviews with witnesses themselves" is possible]

The Court also rejected the argument that the privilege of specific requested documents covering trial preparation materials had been waived by the disclosure of other historical privileged documents created earlier.

The Court did not address whether and when the constitutional right to a fair trial limits a trial court’s discretion to apply a statutory privilege so as to preclude a defendant from receiving otherwise subpoenable materials (see, e.g. Davis v Alaska, 415 US 308 [1974]; People v Davis, 86 AD2d 856 [1982]).

Although this decision hurt Swartz and Kozlowski, it is likely to be helpful to more defendants than prosecutors, since it is more common for defense attorneys to attempt to assert the privilege, than prosecutors.

Friday, October 10, 2008

Rochester Curfew Ordinance Invalid

By a 3-2 vote , the Fourth Department in Anonymous v City of Rochester (2008 NY Slip Op 07724 [10/1008]) held that the Rochester Ordinance which imposed a curfew on persons under seventeen and subjected them to arrest for violation of the curfew conflicted with both New York statutes and the constitution and is, thus, invalid. (Great job by Michael Burger and David Ahl working pro bono).

Attorneys representing person who were stopped pursuant to the curfew ordinance and then charged with other crimes, have a basis to challenge the arrests and the acquisition of evidence regarding the other crimes.

Child Sexual Abuse Accomodation Syndrome Testimony Admissible Without Frye Hearing

In People v Bassett (2008 NY Slip Op 07729 [10/3/08]) the Fourth Department held that there was no error in allowing the People to present the testimony of a witness concerning child sexual abuse accommodation syndrome (CSAAS) without first conducting a Frye hearing.
With respect to the merits of defendant's contention that a Frye hearing was required, it is well settled that expert testimony concerning CSAAS is admissible to assist the jury in understanding the unusual conduct of victims of child sexual abuse provided that, as here, the testimony is general in nature and does "not attempt to impermissibly prove that the charged crimes occurred" (People v Carroll, 95 NY2d 375, 387; see People v Gillard, 7 AD3d 540, lv denied 3 NY3d 659; People v Doherty, 305 AD2d 867, 868, lv denied 100 NY2d 580; People v Miles, 294 AD2d 930, lv denied 98 NY2d 678), and a "Frye hearing was unnecessary [in this case] because the expert's testimony did not involve novel scientific evidence" (People v Middlebrooks, 300 AD2d 1142, 1143, lv denied 99 NY2d 630).

Perhaps a reader can inform us how CSAAS became so clearly established that admissibility of testimony about is beyond question. Where are the peer reviewed studies?
The Court also rejected defendant's contention that defense counsel was ineffective in failing to conduct an adequate cross-examination of the People's expert witness and to challenge his qualifications or familiarity with CSAAS.

What Constitutes an Unequivocal Assertion of the Right to Counsel?

In New York the unequivocal assertion of the right to counsel acts to preclude any further questioning unless there is a waiver of the right to silence in the presence of counsel. But what constitutes such an unequivocal assertion? That was the issue in People v Edwards (2008 NY Slip Op 07474 [10/3/08]. When two detectives sought to speak to Mr. Edwards he informed them that his union representative and a friend who is a Sheriff's Deputy advised him not to speak to the police. When the police responded that those people were not attorneys, Mr. Edwards replied that he did not have an attorney and could not afford one. Was that his way of saying that he wanted an attorney and was relying on his friends who most knew the law solely because he could not afford one? The trial court said no, and the Fourth Department held that the record supports the court's determination (the Court wrote that on this issue one should see generally People v Glover, 87 NY2d 838; People v Fridman, 71 NY2d 845; People v Hicks, 69 NY2d 969, rearg denied 70 NY2d 796; People v Dehmler, 188 AD2d 1056, lv denied 81 NY2d 1013).
The Court did not cite People v Porter (9 NY3d 966 [2007]), in which the Court of Appeals, last year, overturned the Appellate Division, Fourth Department's decision, on whether the circumstances established an unequivocal invocation of the defendant's right to counsel. The Court in Porter emphasized that in deciding on whether request is unequivocal, the court should look at the clear meaning of the statement and held that the defendant's words "I think I need an attorney", coupled with an interviewing officer's notation that defendant was "asking for an attorney" demonstrated an unequivocal invocation of defendant's right to counsel.
The Edwards decision does not explain why the statments of Mr. Edwards fell short of the standard applied in Porter.

Check the Certificate of Conviction -- It is Often Wrong

Since Corrections officials must follow the terms of a certificate of conviction, it is critical that appeals attorneys review the certificate of conviction and determine if it accurately reflects the appellant's convictions and sentences. In October, 2008 the Fourth Department noted errors in the certificates of conviction in seven different cases.
In People v Wynn (2008 NY Slip Op 07432 [10/3/08]) the certificate had the wrong predicate status.
In People v Switzer (2008 NY Slip Op 07452 [10/3/08]) the certificate of conviction provided
that a term of imprisonment of 1½ to 4½ years was imposed on that count, which is a legal sentence, but the sentencing minutes establish that the court imposed a term of imprisonment of 1½ to 4 years, which is an illegal sentence.
The certificate also incorrectly stated that the conviction followed a jury trial. The case was remanded for re-sentencing.
In People v Sweney (2008 NY Slip Op 07393 [4th Dept]) the certificate named the wrong judge.
In People v Mosley (2008 NY Slip Op 07423 [10/3/08]) the certificate incorrectly listed the consecutive sentences imposed.
In both People v Martin (2008 NY Slip Op 07281 [10/3/08]) and People v Dickerson(2008 NY Slip Op 07310 [10/3/08]) the certificate inaccurately reflected the length of the sentence imposed.
Finally, in People v Bassett (2008 NY Slip Op 07729 [10/3/08]) the certificate listed a higher level offense than that for which the defendant had been convicted.
It is clear that the Court pays attention to certificates of conviction. Counsel should do no less.

An Issue Likely to Result in Appellate Relief, Even When Unpreserved

One issue that the Fourth Department has repeatedly reversed on, even when unreserved is the erroneous setting of the expiration date of an order of protection. For example, in February 2008, we noted that the Court in People v Smith (2008 NY Slip Op 00904 [4th Dept 2008)held that
[W]e agree with defendant that the court erred in calculating the expiration date of the order of protection without taking into account the jail time credit to which she is entitled (see People v Clinkscales, 35 AD3d 1266, 1267; People v Hare, 27 AD3d 1171, 1172, lv denied 6 NY3d 892, 894, 898). Although defendant failed to preserve that contention for our review, we exercise our power to review that contention as a matter of discretion in the interest of justice (see People v Fomby, 42 AD3d 894, 895; People v Valdez, 41 AD3d 1255, lv denied 9 NY3d 882).

Last week, in People v Cambridge (2008 NY Slip Op 07435 [10/3/08]) the Court went a step further and corrected such an unpreserved error, in the interest of justice, depsite there being a valid waiver of appeal.

Monday, October 6, 2008

Permissible To HaveTestimony That Jailhouse Informant's Cooperation Agreement Required Truthful Testimony

In People v Santana (2008 NY Slip Op 07377 [4th Dept 10/308]), the Court held that there was no error in permitting the attorney for a jailhouse informant to testify that pursuant to to the his cooperation agreement, the informant was required "to provide truthful cooperation" at defendant's trial in order to receive a downward departure of his federal sentence. The Court explained that since the informant had not yet testified, his attorney could not and, indeed, did not offer any opinion whether the informant had provided such truthful cooperation. Thus,
the attorney did not implicitly testify concerning the informant's credibility in violation of the Confrontation Clause or the advocate-witness rule (cf. United States v Roberts, 618 F2d 530), nor did her testimony usurp the jury's function to assess the informant's credibility (see People v Hayes, 226 AD2d 1055, 1056 lv denied 88 NY2d 936).

Further, the Court held that since defendant raised the issue of the informant's motive for testifying and his credibility, "the People were properly permitted to elicit the bolstering aspect of the cooperation agreement, i.e., the promise by the [informant] to testify truthfully" (Hayes, 226 AD2d at 1055; see People v Poppo, 292 AD2d 859, 860, lv denied 98 NY2d 679).

When it Comes to Instructions on the Right Not To Testify, Timing Is Everything

In People v Mcknight (2008 NY Slip Op 07355 [4th Dept 10/3/08]) the Court rejected the contention that reversal was warranted because the court failed to instruct the jury at the outset of the trial that defendant had a constitutional right not to testify.

Although defense counsel requested that instruction (see CPL 300.10 [2]), he did so after the People's opening statement and thus the request was untimely (see CPL 270.40). In denying the request, the court stated that it would give the instruction at the conclusion of the case, if requested to do so, and we conclude that "the court's decision to wait until after summations to deliver the instruction was not erroneous" (People v Rescigno, 152 AD2d 853, 854, lv denied 74 NY2d 851; see also People v La Mountain, 155 AD2d 717, 720, lv denied 75 NY2d 814; cf. People v Jeffries, 129 AD2d 962).

When Waiver of Appeal Does Not Encompass Sentencing Issue

Generally, the valid waiver by defendant of the right to appeal encompasses his challenges to the severity of the sentence (see People v Hidalgo, 91 NY2d 733, 737). There is an exception to this general rule. In People v Tolliver (2008 NY Slip Op 07341 [4th Dept 10/3/08]), the Court reaffirmed that even a valid waiver of the right to appeal does not encompass defendant's challenge to the severity of the sentence where the defendant waived his right to appeal before Supreme Court advised him of the maximum sentence that could be imposed (see People v Mingo, 38 AD3d 1270, 1271; see generally People v Lococo, 92 NY2d 825, 827).

Hearing Ordered on Claim of Ineffective Assistance of Counsel

In People v Wosu (2008 NY Slip Op 07292 [4th Dept 10/3/08],by a 3-2 vote, the Fourth Department held that it was error for a court to deny a 440.10 motion based on a claim of ineffective assistance of counsel (IAC). Since counsel framed the claim exclusively in therms of the United States Constitution that Copurt applied the federal test for IAC set forth in Strickland v Washington (466 US 668); see People v McDonald, 1 NY3d 109, 114-115).

On appeal Ms. Wosu relied on the decision of the Second Circuit with respect to a codefendant's application for a writ of habeas corpus based on ineffective assistance of counsel (Eze v Senkowski, 321 F3d 110). According to defendant, she and her two codefendants presented a unified defense at trial, and thus the same deficiencies in the representation of the attorney for the codefendant who sought a writ of habeas corpus were also present in the representation of defendant's trial attorney.

The dissent rejected the relevance of the holding in the co-defendant's case because Ms. Wosu's attorney presented an alibi defense. Thus, the dissenting justices reason, the deficiencies int he co-defendant's attack on the credibility of the complainant was less relevant.

Crawford Motions: Damned If You and Damned If You Don't

Assigned appellate counsel, who upon a review of the record conclude that there are no non-frivolous issues, may move to be relieved of the assignment (People v Crawford, 71 AD2d 38). In federal court this is known as an Anders brief (Anders v California, 386 US 738). However counsel must be very careful to file such a motion only if there are, in fact no frivolous issues. And even if there are such issues there are difficult issues that can arise in the decsion to file or not file such a motion.

First, the filing of such a motion, if warranted, may not only result in the attorney being relieved of the assignment, but also in the client's conviction being affirmed (see, e.g., People v Hill, 2008 NY Slip Op 07546 [4th Dept 10/3/08]). Thus, such a motion, in which defense counsel details why there are no issues to be raised on appeal from the conviction or sentence is the functional equivalent of a prosecutor's appellant's brief.

If that doesn't dissuade a defense attorney form filing such a motion, there is always the potential embarrassment of the court granting the motion, but then reassigning the appeal to another attorney because the first attorney failed to recognize that there non-frivolous issues that could be raised in the case. That happened in three cases in the most recent packet of Fourth Department decisions (People v Shampine (2008 NY Slip Op 07551 [4th Dept 10/3/08]; People v Spencer, 2008 NY Slip Op 07552 [4th Dept 10/3/08]; People v Spencer, 2008 NY Slip Op 07553 [4th Dept 10/3/08]).

Thus, for example, in People v Shampine (2008 NY Slip Op 07551 [4th Dept 10/3/08], the Court wrote

Upon a review of the record, we conclude that a nonfrivolous issue exists as to whether County Court erred in denying defendant's request for a downward departure from his presumptive risk level. Therefore, we relieve counsel of her assignment and assign new counsel to brief this issue, as well as any other issues that counsel's review of the record may disclose.

It is clear that these motions are filed at your peril and your client's peril.

But what do you do when the only non-frivolous issue is one that could hurt your client? For example, what if the sentence imposed was unlawfully short? Does an attorney have to file a brief challenging the sentence as unlawful? (See, People v Ammons (41 AD3d 1325)).

What if the client entered a plea to a lesser offense and already served the entire sentence and you see a possible issue regarding the plea? If you raise the issue regarding the plea and win your client faces the potential of a more serious conviction and more time. What if you are unable to get a response from your client as to what to do?

The Second Circuit provides one answer. In United States v. Ibrahim (62 F.3d 72 [2d Cir. 1995]) the Court held that where the defendant has not requested that appellate counsel challenge the validity of a plea and has not made such a challenge in a pro se brief, cousnel can file an Anders brief which should either state that counsel believes that defendant would run unacceptable risk of adverse consequences in challenging the validity of the plea or discuss why there are no non-frivolous issues regarding the validity of the plea.

The Fourth Department has no clear holding guiding counsel. But the Spencer decisions cited above suggest that in the Fourth Department counsel canot file an Anders or Crawford motion is such a circumstance. In both of those cases the defendant has pled to a lesser offense and served his sentence of imprisonment. So counsel filed a Crawford motion rather than risking the client getting convicted of a more serious offense and receiving more time. In both cases the Court held that
The record establishes that defendant moved prior to sentencing to withdraw his plea. The facts raise the issue of whether the court abused its discretion in denying defendant's motion. Therefore, we relieve counsel of his assignment and assign new counsel to brief this issue

Thus, unlike the Second Circuit, it appears that the Fourth Department wants assigned counsel to raise such an issue.

Thursday, September 25, 2008

What does CPL 190.50 mean when it requires that the DA accord a defendant a reasonable time to testify at the Grand Jury?

CPL 190.50(5)(a) requires that upon a request from a defendant to appear
before the grand jury, the district attorney must notify the defendant or
his attorney of the prospective or pending grand jury proceeding and must "
accord the defendant a reasonable time to exercise his right to appear as a
witness therein." In People v Shemesh ( __ NY3d __ [9/16/08]) the Court of Appeals affirmed a dismissal of an indictment, with leave to represent, because there was record support for the lower courts findings that the district attorney had failed to accord the defendant reasonable time to exercise his right to appear as a witness before the grand jury. The facts in Shemesh, which are set forth in the 3-2 decision of the Appellate Division, First Department at 2008 NY Slip Op 00208,51 AD3d 239, reveal that the district attorney had provided the defendant with 4 possible dates to testify, but that the defendant could not testify on any of those dates due to either a change in counsel (not for the purpose of being deliberately dilatory) or because it would conflict with his observance of a religious holiday. The trial court and the majority of the Appellate Division held that merely providing a defendant with four possible dates to testify was unreasonable where the defendant had timely communicated good reasons that he was unable to testify on those dates and that he was able to testify on a different date during the term of the grand jury. The Court of Appeals had previously held in People v Sawyer (96 NY2d 815, 816 [2001]) that the "concept of reasonableness is flexible and must be applied to the particular facts of a case known at the time." Applying Sawyer, the Appellate Division held that "[a] flexible application of the concept of reasonableness to the particular facts...cuts in favor of defendant..."

The affirmance of this holding by the Court of Appeals should provide
valuable support for attorneys seeking to challenge the limited times
offered by a district attorney to their clients to testify at the grand
jury as being unreasonable.

Error to Permit Defendant to Be Cross-Examined Regarding Prior YO Adjudication

In People v Towsley, 2008 NY Slip Op 06054 [4th Dept 7/3/08] [here], the Fourth Department held that it was an abuse of discretion for the trial court to issue a Sandoval ruling permitting the defendant to be cross examined regarding a prior Youthful Offender adjudication. This error was deemed harmless; but this seems like a ruling to remember when you have a client who previously received YO status.

Horseshoes, Hand Grenades, and Predicate Sentencing:

Besides the classic examples of horseshoes and hand grenades, compliance with the requirements for predicate sentencing is apparently another instance in which getting close is credited.

In People v Mateo, 2008 NY Slip Op 06087 [4th Dept 7/3/08](here] the Fourth Department considered the consequence of the failure of the People to file a
second felony offender statement as required by CPL 400.21 (2) following his retrial. The Court noted that
[t]he People filed a second felony offender statement at the first trial and defendant admitted his status as a second felony offender at that time and at sentencing following the retrial. We thus conclude that there was substantial compliance with the statute.
Thus, the People are required to have only substantial compliance with CPL 400.21 (2).

Wednesday, September 24, 2008

Reversal Due to Unpreserved Prosecutorial Misconduct

In People v Fredrick, 2008 NY Slip Op 06056 [4th Dept 7/3/08] [here] the Fourth Department not only reversed a conviction due to unobjected to prosecutorial misconduct, but in doing so the Court expressly refused to consider whether the misconduct contributed to the verdict. In reversing in the interest of justices, the Court wrote

as defendant correctly contends, the prosecutor improperly vouched for the credibility of the People's witnesses during both his opening and closing statements (see People v LaDolce, 196 AD2d 49, 57; see generally People v Bailey, 58 NY2d 272, 277-278). He also improperly elicited testimony from a police officer who vouched for the credibility of the confidential informant by testifying that the confidential informant had provided reliable information to the police in the past (see People v Slaughter, 189 AD2d 157, 160, lv denied 81 NY2d 1080). In addition, the prosecutor repeatedly elicited irrelevant and highly prejudicial testimony from several police officers concerning the percentages of convictions obtained by those officers in prior unrelated cases, referred to by the prosecutor as their "batting average[s]." That misconduct was compounded during summation when the prosecutor highlighted the "exemplary record" of the police officers and the confidential informant who testified for the prosecution by stating that they were "batting 100 percent[,] 85 percent, 90 percent" (see generally People v Ashwal, 39 NY2d 105, 109-110). Further, the prosecutor improperly elicited testimony establishing that defendant had been incarcerated since his arrest (see People v Paul, 229 AD2d 932, 933), as well as testimony on direct examination of the confidential informant that defendant had not made certain exculpatory statements to him while they were in jail following defendant's arrest (see generally People v Collins, 12 AD3d 33, 38-39).

It cannot be said that County Court "took appropriate action to dilute the effect of [the prosecutorial misconduct]" (People v Mott, 94 AD2d 415, 419), and we conclude that the misconduct "operated to deny . . . defendant his fundamental right to a fair trial" (People v Crimmins, 36 NY2d 230, 238). We therefore "must reverse the conviction and grant a new trial, . . . without regard to any evaluation as to whether the errors contributed to the defendant's conviction. The right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right" (id.).

Horseshoes, Hand Grenades, and Predicate Sentencing:

Besides the classic examples of horseshoes and hand grenades, compliance with the requirements for predicate sentencing is apparently another instance in which getting close is credited.

In People v Mateo, 2008 NY Slip Op 06087 [4th Dept 7/3/08](here] the Fourth Department considered the consequence of the failure of the People to file a
second felony offender statement as required by CPL 400.21 (2) following his retrial. The Court noted that
[t]he People filed a second felony offender statement at the first trial and defendant admitted his status as a second felony offender at that time and at sentencing following the retrial. We thus conclude that there was substantial compliance with the statute.
Thus, the People are required to have only substantial compliance with CPL 400.21 (2).

When Does a "Conviction" Occur?

by James Eckert

Many statutes impose harsher penalties on a defendant who commits a crime
after he has been "convicted" of another crime. For example, a UUMV
conviction after a prior is more serious, the second DWI is a felony and so
on. Today, in People v Montilla, the Court of Appeals held that a
defendant is convicted, at least for some purposes, the day he pleads

A judgment of conviction is based on the date sentence has been
imposed. However, in order to sustain a conviction under PL 265.02(1) - CPW3, instead of CPW4, the Court of Appeals ruled that "conviction" meant only that the defendant had pled guilty, not that there was a judgment of conviction.
Therefore, after the defendant pled guilty, but before he was sentenced, he
stood "convicted" of the crime he pled to and was therefore subject to
harsher penalties for possession of a weapon.

The Court did point out that recidivist statutes require the imposition of
sentence to constitute a prior conviction, so Montilla does not support a
felony DWI charge the day after the defendant pleads to, but is not
sentenced for, a DWI. However, expect that the statute will be applied to
any other use of the term "convicted" where it is not absolutely clear that
the statute is for recidivists.

Court Divided As To What Consititutes Individualized Showing Needed To Require Defendant To Wear Physical Restraints At Trial

In People v Buchanan [4th Dept 6/6/08] (here) the Fourth Department unanimously held that the use of a stun belt that is not visible to the jury is subject to the same judicial scrutiny as other forms of physical restraint that are visible. Spefically, the Court held that the use of a stun belt that is not visible to the jury requires the court to make the same individualized security determination required for the use of physical restraints that are visible (see Deck v Missouri, 544 US 622, 632).

The Court,however, divided 3-2 as to what constitutes an individualized determination. The majority held that the requirement was satisfied where
the court stated that it had a policy to use restraints in "serious" cases and that it would comply with the recommendation of the Sheriff's deputy to use the restraint.

The dissenting Justices, in an opinion by Justice Fahey, strongly disagreed that the trial judge's reasoning constituted an individualized determination:
In this case, the court set forth on the record three reasons for the use of the stun belt. First, the court stated that it was its policy to place all defendants accused of a crime of a serious nature in either leg shackles or a stun belt during trial. Second, the court stated that the Sheriff's Department wanted defendant to wear the stun belt. Third, the court stated its belief that "an innocent man on trial for murder is more dangerous than a guilty one."
In point of fact, the court noted that defendant had "done [nothing] to warrant" the use of the stun belt, and the only reference to defendant's background was the court's acknowledgment that defendant had never caused any problems in the courtroom in his previous appearances before the court....
The court's blanket policy of placing all defendants in either leg shackles or a stun belt based on the nature of the crime charged is directly contrary to the requirement that there be a case by case determination by the court concerning the necessity for the use of restraints along with the requisite "close judicial scrutiny." The court's blanket policy directly violates the due process requirements for the use of visible restraints... The court should not relegate its duty to apply judicial scrutiny to the Sheriff's Department but, rather, it may consider the recommendation of the Sheriff's Department in making its determination (see generally People v Thomas, 125 AD2d 873, 874)...
Finally, the court's statement "that an innocent man on trial for murder is more dangerous than a guilty one" goes to the very heart of our concern with respect to the procedure used in determining whether the defendant in this case was required to wear a stun belt. The presumption of innocence must be maintained against all attempts to erode it, and courts must ensure that it is not undermined by a desire for convenience or the demands of bureaucratic policies. The presumption of innocence requires that a trial not only be fair, but that it also appears to be fair. The appearance of fairness requires that physical restraints, whether visible or not, be used only where there is an essential state interest. Nothing in the record before us indicates that there was any essential state interest considered in the context of this defendant.

Reversal for Brady Violation Absent Specific Request for Information

n People v Hunter (6/12/08) a unanimous Court of Appeals held that in a sex case, where the defense was consent, it was a Brady violation requiring reversal for the prosecutor to withhold from the defense information that in another pending case the same complainant has accused a man of rape and his claim was that the sex had been consensual. The Court rejected the argument that the subsequent guilty plea by the defendant in the other case obviated the Brady violation. The Court held that the post-trial plea was irrelevant as to the People's duties pursuant to Brady at the time of trial and before. If the information known to the People when this case was tried was "favorable to the accused" and "material" within the meaning of Brady, defendant had a due process right to obtain it, and that right could not be nullified by post-trial events.

Further, the Court ruled that this information that, complainant had accused a second man of rape, as she had defendant; that her encounter with this other man, like her encounter with defendant, took place in the accused man's home; and that, according to that man, the complainant willingly had sex with him and then lied about it, would have been admissible at the defendant's trial during the cross-examination of the complainant.

Finally, and most unusually, despite there not being the specific request for such information (that is almost always required to find Brady violations), the Court concluded that under the facts of the case (in which the jury acquitted on some of the counts) that it was a reasonable probability that the verdict would have been different if the information had been disclosed, and that the information, therefore, was material.

Cumulative Effect of Evidentiary Errors and Prosecutorial Misconduct Deprived Defendant of Fair Trial

What is rarer, reversal due to the admission of hearsay or reversal due to prosecutorial misconduct? How about reversal for unpreserved hearsay violations? Or reversal for unpreserved prosecutorial misconduct?

In People v Ballerstein 2008 NY Slip Op 05127 [4th Dept 6/6/08], a decision sure to be cited often, the Fourth Department held that, despite not being preserved for review, the cumulative effect of evidentiary errors and prosecutorial misconduct deprived the defendant of his right to a fair trial and required reversal. The Court explained "we are mindful of our overriding responsibility' to ensure that the cardinal right of a defendant to a fair trial' is respected in every instance" (People v Wlasiuk, 32 AD3d 674, 675, lv dismissed 7 NY3d 871, quoting People v Crimmins, 36 NY2d 230, 238).

Addressing first the cumulative effect of evidentiary errors, we agree with defendant that County Court erred in admitting hearsay, including excerpts from the victim's diary, testimony relating to the victim's menstruation, testimony from the ex-boyfriend of the victim's mother concerning a videotape that he never viewed, and testimony from various witnesses concerning the victim's allegations of sexual abuse. We note in particular that the court admitted in evidence the double hearsay testimony of the medical director of the Child Advocacy Center with respect to statements made by the victim to a nurse at the center when the medical director was not present, despite the fact that the court had granted defendant's motion in limine seeking to preclude that testimony. Moreover, all of the victim's statements made at the Child Advocacy Center were inadmissible because they were made during the course of a forensic examination and were not "relevant to diagnosis and treatment" [citations omitted]. The error in the admission of the victim's statements made at the Child Advocacy Center was compounded by the improper admission of the medical director's opinion testimony concerning the credibility of the victim's statements. The opinion testimony of the medical director improperly intruded upon the function of the jury to determine whether to credit the victim's statements (see People v Eberle, 265 AD2d 881, 882)...
With respect to the contention of defendant that he was denied a fair trial by prosecutorial misconduct, we agree with defendant that the prosecutor improperly appealed to the jurors' sympathies in his opening statement (see People v Brown, 26 AD3d 392, 393). In addition, he improperly vouched for the credibility of the victim (see id.; People v George, 249 AD2d 488, lv denied 92 NY2d 879), and he engaged in misconduct by commenting on the credibility of an individual whom he did not intend to call as a witness. Further, throughout the trial, the prosecutor asked leading questions that circumvented unfavorable rulings of the court and introduced evidence that the court had precluded him from presenting. Finally, in his closing statement, the prosecutor made several "irrelevant comments which [had] no bearing on any legitimate issue in the case" (People v Ashwal, 39 NY2d 105, 109) and, in stating that "[p]rosecutors seek justice and juries deliver it in cases such as these," he "exceed[ed] the bounds of legitimate advocacy" (People v Melendez, 11 AD3d 983, 984, lv denied 4 NY3d 888; see People v Benedetto, 294 AD2d 958, 959). Furthermore, the prosecutor impermissibly warned the jury not to "fall into the same trap the Department of Social Services has fallen into," whereby the victim "got lost in the system." "Such appeals to emotion tend to deflect the jurors' attention from issues of fact on the question of guilt or innocence" (People v Bowie, 200 AD2d 511, 513, lv denied 83 NY2d 869), and cause them instead to focus on protecting the victim and correcting an alleged error in the child protective system (see generally People v Ivey, 83 AD2d 788, 789). We can only conclude herein that the prosecutor's "inflammatory [comments had] a decided tendency to prejudice the jury against the defendant" (Ashwal, 39 NY2d at 110; see People v Carter, 31 AD3d 1167, 1169; People v Almethoky, 9 AD3d 882).

Another big win for Mary Davison.

Forfeiting Peremptory Challenges Used in a Discriminatory Manner is a Permissible Remedy for Batson Violations

The Court of Appeals, in People v Luciano, 2008 NY Slip Op 04898 [6/3/08] has held that forfeiture or permeptory challenges is a permissible remedy for attorneys who exercise peremtory challenges in violation of the constitiuion under Batson v Kentucky, 476 US 79 [1986] and its progeny. However, the Court noted

that the free exercise of peremptory challenges is a venerable trial tool that should be denied only in rare circumstances. In fashioning the proper remedy, a trial judge may consider, among other factors, whether the challenged juror is available to be reseated, whether the litigant appears to be engaging in a pattern of discrimination, and the number of peremptory challenges that remain to be exercised. While even a single instance of discriminatory conduct may warrant forfeiture, where the finding of discrimination is close, forfeiture may not be an appropriate remedy (citations omitted).

In Luciano the trial court's ruling that cousnel has forfeited permentory challenges was error and the defendat was entitled to a new trial

because the trial judge was under a misapprehension that the law required forfeiture and failed to exercise the requisite discretion. As the court stated, "The law is that if you exercise the strikes and you determine them to [have been made] on a[] discriminatory basis, you forfeit those rights." As a result, defense counsel exhausted his peremptory challenges before the completion of jury selection. This is reversible error, entitling defendant to a new trial. In so holding, we reach no conclusion as to whether there was indeed a Batson violation or whether forfeiture would have been a proper remedy had discretion been exercised.

Taking Keys to Car is a Seizure Even if Car Isn't Searched

In People v Colligan, 2008 NY Slip Op 05133 [4th Dept 6/6/2008] the Court held that it was error to deny a suppression motion where, prior to the issuance of a warrant to search a car, the police took the keys to the car from the defendant and sat out with the automobile. Since the hearing record did not show that probable cause existed as such time, this was unlawful in that

[a]lthough they did not search the automobile until the search warrant had been obtained, "there is no lesser invasion in the detention or holding of an automobile while a warrant [is] obtained than in an immediate entry of an automobile to search for contraband or evidence" (People v Singleteary, 35 NY2d 528, 533; see People v Brosnan, 32 NY2d 254, 259-260).

New York State Ignores All Four Appellate Divisions

I previously reported that the Appellate Division, Fourt Department, in People of State of New York ex rel. Lucas Foote v Piscotti, held that persons charged with violating the terms of post release supervision not imposed by judges are entitled to immediate release. In fact, the other three Appellate Divisions have all issued similar decisions (People ex rel Lewis Ward, __ AD3d __, 2008 WL 2051102 [1st Dept 5/1/08]; People ex rel Gerard v Kralik, 2008 NY Slip Op 04895 [2nd Dept 5/27/08]; Prendergast v NYS Dept of Corrections, __ AD3d __, 2008 WL 1902192 [3d Dept 5/1/08]).

Seems pretty clear. So what has our State done with the hundreds of persons currently being incarcerated in New York state based on violations of PRS not imposed by judges? They have sent memos to the judges about how they can get them re-sentenced, and have written to the inmates telling them they will be subject to re-sentencing, but have taken no steps to release these people being held without any valid commitment order or to inform them that they are being illegally detained and are entitled to release forthwith. The Attorney General has taken the position that even when the commitment do not show any judicially imposed sentence of PRS and when the only PRS was illegally imposed by DOCS the person should be held in custody because the commitment order may be incorrect.

Phrased differently, the Attorney General, without citing any authority, argues that, rather than being bound by the terms of commitment orders, DOCS is free to ignore them since they may be incorrect (sort of a presumption of irregularity). And the argument is that, based on this possibility, the person can be detained despite the absence of any commitment order justifying continued custody. In a different context, the Fourth Department held in People v Williams, 191 AD2d 989 [4th Dept 1993] “The police are not at liberty to arrest and hold a suspect while they search for evidence sufficient to justify their action [citations omitted].”

Our Government is Incarcerating Many People Without Any Lawful Authority

The Executive branch of our government is knowingly incarcerating many people whom it knows it has no legal authority to incarcerate. It appears to be our government's policy that, although it is unlawful to incarcerate these individuals, the government will continue to keep them in custody unless and until each affected individual wins a habeas corpus proceeding resulting in a court order for his release. Nor has our government even notified the affected individuals that they are being held unlawfully. Such illegal incarcerations predicated on a wholesale disregard for the law by our government undermines the very authority of our government to expect people to follow its laws. It ought to be offensive to those who expect our government to be one of law. It also risks civil damages for illegal imprisonment based on this unlawful incarceration.

No, I am not referring to the Bush administration and Guantanamo. Rather, I am addressing the fact that a month after the New York Court of Appeals has expressly held that sentence of post release supervision [PRS]not imposed by judges are void and a week after the Appellate Division, Fourth Department held that consequently a person in custody for violating the terms of PRS not imposed by a judge is entitle to be discharged "from custody forthwith" neither the New York State Division of Parole nor the New York State Department of Corrections has taken steps to discharge from custody the many people currently incarcerated for violating the terms of PRS not imposed by a judge. Rather, all that New York is doing with respect to these unlawfully incarcerated individuals is taking steps to have them lawfully sentenced to PRS by judges. But, of course, even after these people are lawfully sentenced to PRS they cannot be lawfully incarcerated for conduct which predates the imposition by a judge of a sentence of PRS. So, these people are all entitled to immediate release. Yet, absent any lawful sentence or authority, New York continues to keep these people locked up.

If you are offended by our government's wholesale disregard of its laws, you might want to write to Brian Fischer, Commissioner, NYS Department of Correctional Services, Building 2,1220 Washington Ave, Albany, New York 12226-2050 and to George P. Alexander, Commissioner of the NYS Division of Parole,97 Central Avenue, Albany, NY 12206 urging that they follow the law and work to insure the immediate release of persons held in New York prisons for violating the terms of PRS which were not imposed by a judge.

One Cannot Be Incarcerated For Violating The Terms Of Post Release Supervision Not Imposed By A Judge

After the Court of Appeals held that post release supervision sentences added by the Department of Corrections or by court personnel, other than judges are not validly imposed, but that resentencing was available in such cases for a court to lawfully impose such a sentence (People v Sparber)the questioned remained whether persons charged with violating the terms of post release supervision not imposed by judges are entitled to immediate release. Today, in People of State of New York ex rel. Lucas Foote v Piscotti the
Fourth Department answered this question with a clear "yes."
Petitioner commenced this habeas corpus proceeding contending that the Department of Correctional Services (DOCS) lacked the authority to include a period of postrelease supervision in petitioner's sentence calculation because the sentencing court had not imposed a period of postrelease supervision. County Court erred in refusing to sustain the writ of habeas corpus based upon its conclusion that postrelease supervision was mandated by law and that nullification of postrelease supervision would render petitioner's sentence invalid. As the Court of Appeals has written, "[b]ecause CPL 380.20 and 380.40 collectively provide that only a judge may impose a [postrelease supervision] sentence, we conclude that DOCS may not do so" (Matter of Garner v New York State Dept. of Correctional Servs., ___ NY3d ___, ___ [Apr. 29, 2008]).

Thus, the Court ordered that Sheriff discharge petitioner from custody forthwith.

Recent Third Department Reversals, Modifications and Dissents

by Tim Davis, Esq.

People v Hackett, 47 AD3d 1122 (January 24, 2008)

Late one night, a State Trooper observed the defendant drive his vehicle over the fog line. The Trooper activated his emergency lights. After pulling over to the side of the road, the defendant leaned toward the passenger seat of his vehicle before the Trooper approached. The Trooper requested both license and registration, but defendant produced only the registration. Upon questioning defendant concerning his movement within the vehicle, defendant explained he was reaching for his cell phone, which he then showed to the Trooper.

The Trooper ordered defendant out, and decided to detain him for a traffic violation. The Trooper handcuffed defendant for safety reasons, and placed him in his patrol car while he ran a warrant check. He made no effort to determine whether defendant possessed a valid driver's license. Once a second Trooper arrived, the first went to defendant's vehicle, opened the passenger door and looked at the floor board. Seeing nothing, he bent down and shone his flashlight underneath the passenger seat, discovering a loaded handgun. A later search revealed a quantity of cocaine as well.

Indicted for two counts of Criminal Possession of a Controlled Substance in the Third Degree and three counts of Criminal Possession of a Weapon in the Third Degree, defendant moved to suppress the handgun and cocaine. The lower court relied on the minutes of the preliminary hearing - at which just the Trooper testified - and denied the request.

The Third Department, relying on People v Torres, 74 NY2d 224 [1989], held that the Trooper had no probable cause to return and search under the front passenger seat of defendant’s vehicle, when the defendant was secured and there was no imminent threat the Trooper’s safety. Although the defendant was driving erratically and disappeared from sight when he leaned toward the passenger seat, he explained this movement and produced his cell phone. Further, although the Trooper thought the defendant seemed nervous and repeatedly looked at his vehicle, this conduct was insufficient to justify a search. The search was unlawful because 1) there was no basis for the Trooper to believe a weapon was within the vehicle, and 2) no actual or specific danger threatened the safety of the officers.

People v Hasenflue, 48 AD3d 888 (February 21, 2008)

In March 2003, the defendant represented himself at trial, and was convicted of Attempted Aggravated Assault on a Police Officer, Reckless Endangerment in the First Degree and Aggravated Harassment in the Second Degree. He appealed, and argued that the court erred in proceeding to trial without completing a 730 exam, which was ordered by another judge at arraignment. Before trial, two psychologists attempted to examine the defendant, but made no determination as he refused to cooperate. In People v Hasenflue, 24 AD3d 1017, the Third Department held that the defendant was “deprived of his right to a full and fair determination of his mental capacity to stand trial,” and remitted the case for a reconstruction hearing.

Both counsel and the two psychologists who tried to interview defendant testified at the reconstruction hearing. The psychologists reviewed all the defendant’s psychiatric records and the court proceedings, leading them to opine that he was competent. Based upon this testimony, the court determined that the People established defendant’s competency to stand trial by a fair preponderance of the evidence.

The Third Department reversed, concluding it was not possible to determine defendant's competency given the lack of any contemporaneous psychiatric examinations/evaluations at the time of trial. While relevant to the ultimate issue, neither his observed demeanor at trial nor his self representation was sufficient to establish his competence.

People v Revette, 48 AD3d 886 (February 21, 2008)

Defendant was charged with setting two fires to the home of her ex-boyfriend, with whom she was involved in a custody dispute. She was convicted after trial of Arson in the Third Degree (two counts) and Burglary in the Third Degree (two counts).

Before trial, defendant sought dismissal of the indictment pursuant to CPL § 210.35(5), arguing that a grand juror was married to one of the three deputy sheriffs who investigated the fire and testified before the grand jury.

As a close relationship between a grand juror and a witness raises the risk of prejudice, the Third Department held that the prosecutor should have enquired whether the juror could fairly evaluate the evidence. Although the prosecutor asked the juror if she could remain impartial, he received an ambiguous response which he never asked her to clarify. This was significant as the number of jurors voting to indict was not recorded, and the testimony of the juror’s husband was important to the case.

People v Ramos, 48 AD3d 984 (February 28, 2008)

Defendant was convicted after trial of Burglary in the Second Degree and Criminal Mischief in the Third Degree. The court sentenced him to twelve years determinate on the burglary and four years determinate on the criminal mischief.

On appeal, defendant argued he should have been sentenced to an indeterminate term on the criminal mischief as it is a non-violent felony. The People conceded this was error. The Third Department vacated the sentence and remitted the case to the trial court.

People v Westerling, 48 AD3d 965 (February 28, 2008)

Defendant was charged with abducting and then raping his estranged girlfriend. He was convicted after trial of Rape in the First Degree, Criminal Sexual Act in the First Degree (two counts), Kidnaping in the Second Degree, Coercion in the First Degree, Criminal Use of a Firearm in the First Degree, Criminal Contempt in the First Degree (two counts) and Resisting Arrest.

The main issue on appeal was the trial court’s Molineux ruling permitting the People to introduce evidence of numerous domestic violence incidents between defendant and the complainant. In addition to a number of specific instances of violence, the trial court permitted the complainant to testify that defendant hit, bit or threw her approximately 100 times during their three-year relationship. The Third Department ruled it was improper for the court to allow her to testify to unparticularized acts occurring over such a lengthy period.

The potential prejudice of this testimony was exacerbated by the court’s failure to provide the jury with cautionary instructions regarding the limited purpose of this evidence. The court's final instructions were insufficient to cure this deficiency after the jury heard such evidence without any guidance as to its purpose.

People v Haddock
, 48 AD3d 969 (February 28, 2008)

Defendant was convicted after trial of failing to comply with SORA - failing to register on an annual basis, and failing to register within ten days of a change of address.
On appeal, defendant raised the trial court’s refusal to charge the jury that the People were required to prove he knowingly failed to comply with SORA's registration requirements.

Although Correction Law § 168-t contains no requirement of a culpable mental state, the Third Department held that the legislature did not intend to create a strict liability crime. The Court found support for this position in the Pattern Criminal Jury Instructions, which set forth knowledge as an element. Although the People's proof included ample evidence of defendant's knowledge, the Third Department held that the failure to provide such a charge could not be regarded as harmless error.

People v Karika, 48 AD3d 980 (February 28, 2008)

Defendant was charged with Criminal Sexual Act in the First Degree and Sexual Abuse in the First Degree.

During his preliminary instructions, the trial judge correctly advised the jury not to consider the sentence the defendant might receive if convicted, as that was a matter solely for the court to determine. However, immediately before making this statement, the court inexplicably related a recent out-of-court conversation in which someone asked what the court might do when a person commits the charged crime without really meaning to, or knowing the proscribed conduct is unlawful. The court replied: “[I]f a jury decides they are guilty, I give them an unconditional discharge or conditional discharge. It reflects itself in the sentence.”

Defense counsel did not immediately object to this statement, but during the charge conference asked for a curative instruction as the jury might believe the defendant in this case - if found guilty - could receive a conditional or unconditional discharge.
The Third Department first ruled that counsel preserved this challenge even though he waited until the charge conference to request a curative instruction. The issue was raised in time for the court to act.

The Court then reversed, finding that the trial judge basically told the jury the defendant could receive a conditional or unconditional discharge if he were convicted of Criminal Sexual Act in the First Degree. This may have led the jury “to a scrutiny of the evidence less close than that to which defendant was entitled”

Post Release Supervision: What is the Remedy When Not Imposed By a Judge?

In People v Sparber, 2008 NY Slip Op 03946 [NY 4/29/2008], the Court of Appeals finally considered the remedy when sentencing courts fail to pronounce their Post Release Supervision [PRS] terms in accordance with Criminal Procedure Law sections 380.20 and 380.40 and more than a year has past.

The Second Circuit, in considering this issue, held in Earley v Murray (451 F3d 71 [2d Cir 2006]), which held that DOCS's administrative addition of a PRS term not pronounced by Supreme Court violated federal "due process guarantees" (id. at 76 n 1) and should therefore be excised from the petitioner's sentence on a motion for a writ of habeas corpus. The New York Court of Appeals agreed with the Second Circuit that only a judge, and not prison or court clerks can impose PRS. However, the Court disagreed as to the remedy and as to the effect of the one year limit on th eabilty of prosecutors to seek resentencing set forth in CPL 440.40 [1]. The Court explained

It is indisputable that the relief that defendants request — expungement of their PRS terms — would permit them to serve a sentence not in compliance with the statute. But defendants say that this result is required because the People failed to seek proper resentencing within one year from the date of their convictions and did not properly preserve their objection to defendant's expungement remedy before the trial court (see CPL 440.40 [1])[FN6]. Defendants are incorrect. The sole remedy for a procedural error such as this is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement (see People v Sturgis, 69 NY2d 816, 817-818 [1987] ["[A] sentence [that] violates the mandate of CPL 380.20 . . . must be vacated and the case remitted to the trial court for resentencing"]; see also People v Stroman, 36 NY2d 939, 940-941 [1975] [violation of CPL 380.40 requires reversal and remitter for resentencing]).[FN7]

In all five of these cases, there exists no procedural bar to allowing the sentencing [*9]court to correct its PRS error [FN8]. It is obvious that at the time of each defendant's sentencing, Supreme Court intended to impose a sentence in compliance with the provisions of Penal Law §§ 70.00 (6) and 70.45 (1) — one that consisted of a determinate sentence and a period of PRS. No record evidence rebuts that presumption. Thus, the failure to pronounce the required sentence amounts only to a procedural error, akin to a misstatement or clerical error, which the sentencing court could easily remedy (see People v DeValle, 94 NY2d 870, 871 [2000]; People v Wright, 56 NY2d 613, 614 [1982]; People v Minaya, 54 NY2d 360, 364-365 [1981]).

Two footnotes to ponder. First note 6:
Defendants could, of course, move "[a]t any time" for resentencing (CPL 440.20 [1]). Their failure to exercise that right does not entitle them to the remedy requested here. Further, a court's authority to correct its own errors at resentencing is not subject to the one-year time limit imposed on the People by CPL 440.40 (1) (see People v Wright, 56 NY2d 613, 615 [1982] ["(I)t is clear that CPL 440.40 is intended only as a limitation on the People with reference to an 'invalid [sentence] as a matter of law' not imposed by mistake"]).

This note raises at least three questions. First, how could a defense attorney ethically move to have his client's sentence increased? Second, why would she do so? Third, in the divide between invalid sentences and mistaken sentence, how can the failure to be impose a mandatory PRS not be classified as an invalid sentence subject to the one year limitation?

Then comes note 7:
Defendants assert that CPL 450.90 precludes us from remitting for resentencing because the People, having prevailed below, are not entitled to that affirmative relief from this Court. Defendants are mistaken. Rather than affirmative relief to the People, this Court is merely giving a more limited form of relief to defendants than they seek.

So when the defendant argues that the PRS sentence was unlawfully imposed by prison or court officials other than a judges and that he is not and cannot be now subject to PRS, ithe imposition of PRS is just a limited form of the relief that defendant wanted. Which defendant ever asked for or wanted PRS?