Tuesday, February 17, 2009

Important Case on Requirement that Court Inform Defendant of Mandatory Consecutive Nature of Sentence

In People v Morbillo(2008 NY Slip Op 09102, 56 AD3d 694 [2d Dept 11/18/08]) the Second Department considered the consequence of the failure of a superior court, during the plea proceedings, to advise the defendant that his sentence would run consecutively to the undischarged sentence on his prior conviction.

The Court held that since, pursuant to Penal Law § 70.25 [2-a], the consecutive sentence was a direct consequence of the plea, the court's failure to advise the defendant at the time of the plea that his sentence would run consecutively to the undischarged sentence on his prior conviction prevented his plea from being knowing, voluntary, and intelligent (see People v Hill,9 NY3d 189, 191 [2007], cert denied 553 US —, 128 S Ct 2430 [2008]; People v Loree, 8 NY3d 541, 545 [2007]; People v Catu, 4 NY3d 242, 245 [2005]).
Consequently, the Court reversed the judgment, vacated the plea, and remitted the matter to the County Court "for a new plea proceeding in which it shall advise the defendant that, should he elect to plead guilty, his sentence would run consecutively to the undischarged sentence on his prior conviction."

In Morbillo this issue apparently was preserved by the defendant's objection to the imposition of the consecutive sentence. Significantly, the Court of Appeals in People v Loree (8 NY3d at 545-546). has expressly held that errors of this type need not be preserved for review.
Specifically, in Loree, the Court concluded that when a defendant is not informed of postrelease supervision until sentencing, a postallocution motion is not required because "a defendant can hardly be expected to move to withdraw his plea on a ground of which he has no knowledge" (id. at 546). Hence, the Court this type of error to be similar to the rare cases in which "a defendant's factual recitation negates an essential element of the crime pleaded to" – evincing that the plea is not intelligently entered – "and the trial court fails in
its duty to make further inquiry and instead accepts the plea" (id. at 545; see People v Lopez, 71 NY2d 662, 666 [1988]). In so holding, the Court expressly relied upon "the actual or practical unavailability" of the postallocution procedural devices when a defendant is not made aware of additional term of the sentence, not mentioned at the plea, until sentencing, i.e., a motion to withdraw a plea may be made only "before the imposition of sentence" (CPL 220.60 [3]) and CPL article 440 motions are not available because any omission would be clear from the face of the record (see CPL 440.10 [2]). People v Louree, 8 NY3d at 546.

Considering the frequency in which courts neglect to inform defendants of the mandatory nature of a sentence and the absence of a preservation requirement, this is an issue which appellate counsel should put on their checklist. Indeed, for appellate attorneys, who since People v Dokes (79 NY2d 656 [1992]), have been searching for another recurring issue in which reversal can be obtained despite the lack of preservation by trial court counsel, Morbillo issue might be the most significant case in quite a while. A note of caution is due. Please be very careful before making any argument that would result in a reversal of a conviction resulting from a guilty plea, since the defendant then faces the original charges and the potential for a far worse outcome.

(Thanks to Drew DuBrin for bringing Morbillo to my attention).

Sunday, February 15, 2009

Fourth Department Splits on Sufficiency of Corroboration of Unsworn Testimony of Complainant

In People v People v Kolupa (2009 NY Slip Op 01039 [4th Dept 2/11/09]) the court split 3-2 as to whether there was sufficient corroboration of the testimony of the 7 year old complainant regarding a rape charge. More importantly, it appears that that the Court split as to what type of corroboration is required.

The majority held that the unsworn testimony of the seven-year-old victim was sufficiently corroborated by evidence of defendant's opportunity, the testimony concerning defendant's statements to the police and the testimony of other witnesses. The majority held that "[s]trict corroboration of every material element of the charged crime is not required, as the purpose of corroboration is to ensure the trustworthiness of the unsworn testimony rather than [to] prove the charge itself" (People v Petrie, 3 AD3d 665, 667; see Groff, 71 NY2d at 108-110).

By contrast, the dissenting justices emphasized that the "corroboration standard . . . requires proof of circumstances tending to prove the material facts of the crime and tending to connect the defendant to that crime" (People v Guerra, 178 AD2d 434, 434-435; see generally People v Groff, 71 NY2d 101, 109). The dissenting justices then pointed out that the two physicians who examined the victim testified that they found nothing of significance in their examination of the victim's genitals. The dissenting justices, concluded, that "[a]lthough the testimony concerning defendant's statements to the police established that defendant admitted that he exposed himself to the victim, there was no evidence that defendant admitted that he committed any other physical acts with respect to the victim."

Evidence Supported an Instruction on a Claim of Right Defense

In People v Baroody (2009 NY Slip Op 01020 [4th Dept 2/11/09]) the Fourth Department reversed a larceny conviction upon a finding that the trial court erred in failing to instruct the jury on a claim of right defense.

The evidence was that the defendant had instructed an auto shop employee to install two tires owned by Seneca County on defendant's personal vehicle. Defendant testified at trial that the owner of the auto shop had informed defendant that those tires had been "laying around [and] were not wanted." Defendant's testimony was supported by the testimony of a customer of the auto shop, who heard the owner tell defendant that items left at the shop for a period exceeding 30 days became the property of the auto shop, as well as by the testimony of State Police investigators to whom defendant related that he had been told by the owner of the auto shop that the tires were not wanted.

Viewing the evidence in the light most favorable to defendant, the Court concluded that the claim of right charge was warranted because "there is a reasonable view of the evidence to support a finding that defendant took possession of the tires under a claim of right.

One wonders if the owner of the auto shop informed all of his customers that the tires were deemed abandoned by the County and, thus, available, to be installed for free on their vehicle, or only told the defendant, a Seneca County Deputy Sheriff.

Questions to Arrestee During Execution of Search Warrant Required Miranda Warnings

In People v Flowers (2009 NY Slip Op 01044 [4th Dept 2/11/09]) , the defendant was arrested for Criminal Possession of a Controlled Substance in the Third Degree (subdivision 12) while the police were executing a search warrant upon his home. Without any Miranda warnings, the arresting officer asked the defendant how much money cash he had in his pockets. The defendant replied that he had $600.

Then, the officer twice asked the the defendant if he was the owner of $60 found in the kitchen of the residence that was the subject of the search warrant. Both times the defendant denied ownership of the $60. According to the testimony of the narcotics officer at the suppression hearing, however, defendant also stated that "the only thing that was his was that weed" and that he "just sold weed." At the time of those statements, defendant was handcuffed and had not been advised of his Miranda rights.

The Fourth Department rejected the government's argument that the officer made the inquiry for "routine processing purposes."

we note that "the People may not rely on the pedigree exception if the question[], though facially appropriate, [is] likely to elicit incriminating admissions because of the circumstances of the particular case" (citations omitted). Here, the narcotics officer testified at the suppression hearing that he questioned defendant for the purpose of completing a form that was required in the event of "an arrest for narcotics" (emphasis added). Cash indisputably plays a significant role as circumstantial evidence in narcotics cases (citations omitted), however, and we conclude that 'an objective observer with the same knowledge concerning the suspect as the police had would conclude that the [question of the narcotics officer concerning the ownership of cash found in the kitchen during the execution of the search warrant] was reasonably likely to elicit [an incriminating] response' (People v Ferro, 63 NY2d 316, 319, cert denied 472 US 1007; see People v Marrow, 301 AD2d 673, 675-676).

Police Lacked Authority to Detain a Suspect While Conducting a Photo Array Elsewhere

In People v Ryan (__ NY3d __, 2009 NY Slip Op 01068 [2/12/09]) the Court of Appeals resolved a tension that has existed in the law between two lines of decisions from the Court of Appeals as to the authority of the police to detain a suspect while investigating a crime.

Although it is clear that police may not forcibly seize a person without probable cause (to support an arrest) or reasonable suspicion (to support a forcible stop); the fruits of an unlawful seizure must be suppressed. ( People v DeBour , 40 NY2d 210, 223 [1976]; People v Hollman , 79 NY2d [1992]), it has been unclear how that general rule is to be applied when the police wish to determine if they can develop evidence regarding a suspect.

Two decisions -- People v Battaglia (56 NY2d 558 [1982], reversing on dissent of Hancock, Jr., J. at 82 AD2d 389) and People v Hicks (68 NY2d 234 [1986]) - - have appeared to be in conflict.

In Battaglia, police detained the defendant for a very brief time, while they went to the nearby site of an activated burglar alarm to see whether there had been a burglary, a means of investigation that did not require detention of defendant, who had been handcuffed, patted down and placed in a police car. This Court reversed on the dissenting opinion below, which noted that although the officer had reasonable suspicion to believe defendant committed a burglary, and that while "[o]ne can sympathize with [the officer's] desire to hold defendant until evidence establishing probable cause could be found," such practical considerations do not override the right to be free from unreasonable searches and seizures (People v Battaglia, 82 AD2d at 396 [ Hancock, Jr., J ., dissenting ], rev'd on dissent 56 NY2d 558). In Hicks, the brief detention of defendant, who was not handcuffed and was told of the limited purpose of his detention - - namely, that he was being taken to the crime scene for a showup identification procedure less than a minute away - - and that he would be released if not identified, was found lawful under the circumstances of that case, as "police pursued a minimally intrusive means of investigation likely to confirm or dispel suspicion quickly, during which time it was necessary to detain the defendant" (Hicks, 68 NY2d at 242 [citation omitted]).

In Ryan the Court considered whether a suspect's 13 minute detention in a police car without probable cause can be justified under Hicks, when the purpose of the detention was to allow the suspect to remain in police custody while a police in another location conducted a photo array with a with a witness to the crime. The Court distinguished Hicks and held that the 13 minutes detention was unlawful:

Hicks allowed a brief investigatory detention so that victims of a recent robbery could participate in a showup (see id. at 237). There, the efficacy of the prompt showup procedure depended on the defendant's and witnesses' simultaneous presence (see id. at 242). But no similar special law enforcement need justifying defendant's detention was shown here. Proper administration of the photo array did not require defendant's presence and, in fact, the police officer did not even know that the non-victim witness had become available to view the photo array when defendant's detention began. Nor were there any other exigencies that might have permitted holding defendant while the photo array was conducted...Thus, the only permissible inference that can be drawn is that this detention was undertaken simply to make it convenient for the police to arrest defendant if a positive identification subsequently occurred (see People v Robinson, 282 AD2d 75, 81 [1st Dept 2001] ["What the police did here, as a practical matter, was to place defendant under arrest in order to obtain sufficient evidence to arrest him"]).

Thus, the Court has limited the application of Hicks to show up identifications and not off site photo arrays.

Monday, February 9, 2009

Prosecutors Must Give a Grand Jury Clear Instructions

Perhaps a DA may get a Grand Jury to indict a ham sandwich, but only after clearly instructing the Grand Jury as to the law. In Matter of Second Report of Seneca County Special Grand Jury of Jan. 2007 (2009 NY Slip Op 00921 [4th Dept 2/6/09])the Court held that the failure of the prosecutor to provide a Grand Jury with clear and correct instructions on the law, rendered invalid he Grand Jury's action. The Court held that

It is "incumbent upon the prosecutor to instruct the Grand Jury regarding the duties and responsibilities of the public servant who is the target of the probe" (Morgenthau v Cuttita, 233 AD2d 111, 113, lv denied 89 NY2d 1042; see Matter of Grand Jury of Onondaga County [appeal No. 1], 101 AD2d 1023). Here, we agree with appellant that the special prosecutor's instructions concerning appellant's duties were vague and inadequate. "Without a [clear and adequate charge] as to . . . [appellant's] duties, it was not only impossible for the Grand Jury to determine that [appellant] was guilty of misconduct, nonfeasance or neglect, but impermissible as well, for it allowed the Grand Jury to simply substitute its judgment for that of [appellant]" (Matter of June 1982 Grand Jury of Supreme Ct. of Rensselaer County, 98 AD2d 284, 285; see Matter of Reports of Grand Jury of County of Montgomery Impaneled on Apr. 30, 1979, 100 AD2d 692). Indeed, we agree with appellant that the conclusions of the grand jury with respect to the alleged violation of those duties were in fact contradictory to the special prosecutor's instructions concerning appellant's duties.

Sunday, February 8, 2009

Name That Tune

In People v Wallace (2009 NY Slip Op 00915 [4th Dept 2/6/09]) the Court concluded that the defendant's playing a cassette recording of a song was admissible as evidence of defendant's consciousness of guilt.

Although "evidence of consciousness of guilt . . . has limited probative value . . ., its probative weight is highly dependent upon the facts of each particular case" (People v Cintron, 95 NY2d 329, 332-333). Here, the evidence presented at trial established that defendant played a cassette tape of his favorite rap song, entitled "How I Could Just Kill a Man," two or three times over the course of two five-minute car rides shortly after the homicide. The lyrics of the song describe a murder occurring under similar circumstances as those present in the instant case. We agree with defendant insofar as he contends that owning a cassette tape of rap music in general, or of any rap song in particular, is not relevant to the murder charge (see generally United States v McCrea, 583 F2d 1083, 1086). The rap song here, however, was not admitted in evidence merely for the purpose of establishing that defendant generally enjoyed rap music. Instead, the People sought to shed light on the circumstances under which defendant listened to the song, and thus the rap song was properly admitted as evidence of defendant's consciousness of guilt (see generally Cintron, 95 NY2d at 332).

Juror's Communication of Expert Opinion to Other Jurors is Improper

In People v Scerbo (2009 NY Slip Op 00913 [4th Dept 2/6/09]), the Court held that where two jurors improperly communicated their expert opinion to the other jurors who relied on such information in voting to convict, the trial court was correct in vacating the conviction. The trial court
properly instructed the jurors that they should use their common sense, knowledge, and experience in evaluating the evidence but that, if a juror possessed special expertise related to a material issue in the case, the juror could not rely on that special expertise "to inject into your deliberations either a fact that is not in evidence or inferable from the evidence, or an opinion that could not be drawn from the evidence by a person without that special expertise." Despite that instruction, the evidence at the post-trial hearing on defendant's CPL 330.30 motion established that two jurors, both of whom were educators, informed the other jurors that teachers are trained or informed never to touch students. That information is not within the common understanding of the average juror, and the issue whether it was appropriate for defendant to allow his female students to sit on his lap during class was a material issue in the case. Indeed, the record establishes that at least one juror was swayed by the opinions of the two jurors in voting to convict defendant. As the court concluded in granting defendant's motion, once a juror was 'convinced that defendant knowingly violated some professional ethic by allowing students to sit on his lap, [the juror] was then able to make the next logical step of concluding that he did so only for the purpose of committing the crimes under consideration.'

One May Not Waive the Presentence Report Prior to the Impositon of a Sentence of Imprisonment

In People v Shapard (2009 NY Slip Op 00903 [4th Dept 2/6/09]) the Court held that a defendant may not waive his right to a presentence report prior to the imposition of a sentence of imprisonment.

We agree with defendant that his waiver of the presentence report should not have been given effect pursuant to CPL 390.20 (4) (a). Such a waiver is not authorized where, as here, "an indeterminate or determinate sentence of imprisonment is to be imposed" (id.). Defendant pleaded guilty to a class D felony and agreed that he was properly classified as a persistent violent felony offender. Supreme Court therefore was required to impose a term of imprisonment upon that conviction (Penal Law § 70.08 [3] [c]; § 120.05 [7]), and thus was also required to order a presentence report prior to imposing the bargained-for sentence (see generally People v Selikoff, 35 NY2d 227, 238, cert denied 419 US 1122; Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 390.20). We therefore modify the judgment by vacating the sentence, and we remit the matter to Supreme Court for resentencing in compliance with CPL 390.20 (1).

Two Reasons Why Appellate Attorneys Fear a Failure to Identify a Valid Issue

Appellate attorneys recognize that the most critical portion of the job is issue identification. That is because generally, an appellate court is not going to grant relief not requested. So appellate attorneys are understandably afraid that a missed issue will result in a client failing to obtain relief to which he is entitled. But they also fear the embarrassment that they will miss an issue and the Court will find it and grant relief sua sponte. That is what happened in both People v Bunnell (2009 NY Slip Op 00752 [4th Dept 2/6/09]) and People v Erb (2009 NY Slip Op 00881 [4th Dept 2/6/09])

In Bunnell the Court vacated the restitution order, on the basis of an error neither objected to at the trial court, nor raised on appeal. The Court explained

A restitution hearing was conducted by County Court's court attorney, after which the court attorney prepared a preliminary fact-finding report. The court affirmed the report and ordered defendant to pay $8,883.99 in restitution, plus a 5% surcharge. We conclude that the court erred in delegating its responsibility to conduct the restitution hearing to its court attorney. We reach this issue sua sponte, as a matter of discretion in the interest of justice (citations omitted). Penal Law § 60.27 (2) provides that, upon the defendant's request, "the court must conduct a hearing" with respect to the amount of restitution in accordance with the procedures set forth in CPL 400.30. CPL 400.30 does not contain a provision permitting the court to delegate its responsibility to conduct the hearing to its court attorney or to any other factfinder. We therefore modify the judgment by vacating the amount of restitution ordered, and we remit the matter to County Court for a new hearing to determine the amount of restitution in compliance
with Penal Law § 60.27.


In Erb the Court held, sua sponte, that that absent a waiver of the right to a hearing, it was error for a court to raises a defendant's SORA risk level without a hearing.

Although the total risk factor score on the risk assessment instrument (RAI) prepared by the Board of Examiners of Sex Offenders (Board) resulted in the presumptive classification of defendant as a level one risk, County Court agreed with the Board's recommendation that an upward departure from defendant's presumptive risk level was warranted based on aggravating factors not taken into account by the RAI. Although defendant has not raised the issue, we conclude that his right to due process was violated based on the failure of the court to conduct a hearing before making its determination of defendant's risk level, as expressly required by Correction Law § 168-n (6). " [T]he due process protections required for a risk level classification proceeding are not as extensive as those required in a plenary criminal or civil trial' " (People v Brooks, 308 AD2d 99, 105, lv denied 1 NY3d 502, quoting Doe v Pataki, 3 F Supp 2d 456, 470). Nevertheless, although defendant waived his right to appear in person and to submit materials, there is no indication in the record before us that he waived his right to a hearing (see generally People v Costas, 46 AD3d 475, lv denied 10 NY3d 716). Indeed, Correction Law § 168-n (6) requires that, "[i]f a sex offender, having been given notice . . . of the determination proceeding in accordance with this section, fails to appear at this proceeding, without sufficient excuse, the court shall conduct the hearing" and make its determination. It does not provide that the failure to appear constitutes a waiver of the right to a hearing. We therefore reverse the order and remit the matter to County Court for a hearing and new risk level determination in compliance with Correction Law § 168-n.

When Did the Fourth Department Last Expressly Acknowledge Its Authority to Reduce Negotiated Sentences?

In People v Farrow, __AD3d , 2009 NY Slip Op 00737 [4th Dept 2/6/09], the Fourth Department’s decision raises questions as to how it envisions the scope of its powers to modify a negotiated sentence.

After holding that the defendant’s one sentence written waiver of appeal was invalid and that in any event that a valid waiver of the right to appeal would not encompass defendant's challenge to the severity of the sentence in this case inasmuch as the court failed to ]advise defendant of the sentencing possibilities , the Court held that “Nevertheless, we reject defendant's challenge to the severity of the sentence. "Defendant was sentenced in accordance with the plea bargain and should be bound by its terms" (People v McGovern, 265 AD2d 881, lv denied 94 NY2d 882). “

This decision makes no mention of the court decisions, including that of the Court of Appeals, which make clear that the broad, plenary power of the Appellate Division, includes the power to reduce a sentence even if the sentence imposed pursuant to a negotiated plea bargain. People v Delgado, 80 NY2d 780,783 (1992); People v Thompson, 91 AD2d 672 (2nd Dept. 1982), modified 60 NY2d 513 (1983); People v Suitte, 90 AD2d 80 (2nd Dept. 1982).

Perhaps one might think that these decisions were discussed and distinguished in McGovern, the decision quoted in Farrow. But McGovern, an earlier Fourth Department decision never cited nor distinguished these cases. Rather it merely quotes People v Zelke (203 AD2d 909), an earlier Fourth Department decision, which merely quoted People v Felman (141 AD2d 889) a decision of the Third Department which pre-dated the Court of Appeal decision in Delgado.

The Fourth Department last cited Delgado as a basis for reducing a negotiated sentence in 1996 in People v Sanchez (225 AD2d 1085 [4th Dept 1996]), in which the Court reduced a negotiated sentence from 8 1/3 year to life to 3 years to life. Since then the Court has never cited nor discussed Delgado in deciding whether it could or should reduce a negotiated sentence. This failure to expressly acknowledge the scope of its authoity to reduce negotiated sentences creates a questions as to whether the language of Farrow that defendant should be bound by the terms of his plea bargain represents an application of the Court’s discretion, as set forth in Delgado, or of a rejection of the very option of challenging a negotiated sentence on appeal?