Tuesday, December 13, 2011

Insufficient Factual Allegations Render Complaint Jurisdictionally Defective

We don't see misuse of NYCTA MetroCard charges very often, but the Court of Appeals decided such a case today in People v Hightower (#223 decided December 23, 2011). What makes the case applicable to us is that the defendant pled guilty to Petit Larceny, and a unanimous Court of Appeals dismissed the charges because the accusatory was jurisdictionally defective.

Hightower was charged with three charges, PL and two relating to the specific activity (swiping an unlimited MetroCard and accepting money for allowing another person to ride the subway). As I said, he pled to PL, so the fact that the other charges were perfectly well established by the accusatory was irrelevant. The prosecution claimed that Hightower had stolen the (unknown amount of) money which he obtained for use of the card. The Court of Appeals ruled that this money was never owned by the NYC Transit Authority. What is important for our purposes is not the discussion of when an agency becomes owner of the currency, but what failures in a misdemeanor accusatory will render it jurisdictionally defective.

"In People v Dreyden (15 NY3d 100, 103 [2010]), we recognized two broad categories of defects to be used as guideposts in determining whether an accusatory instrument is jurisdictionally flawed: "[t]he distinction between jurisdictional and nonjurisdictional defects 'is between defects implicating the integrity of the process . . . and less fundamental flaws, such as evidentiary or technical matters'" (quoting People v Hansen 95 NY2d 227, 231 [2000]) and we find that the violation of the reasonable cause requirement (as set forth in CPL 100.40 [4][b]) here falls into the first category.

In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged. Although the information in this case described the events with enough clarity to provide reasonable cause that defendant was engaged in the unlawful sale of NYCTA services and providing unlawful access to NYCTA services, we hold that it was jurisdictionally defective as to the crime of which defendant was actually convicted -- petit larceny."

100.40(4)(b) provides in turn "(b) The allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument."

Read together, these two provisions strike me as broad enough to be generally applicable to all failures of the accusatory to substantiate the charge against the defendant, except perhaps when the failure can be deemed "technical". My opinion: few things are going to be more technical than the issue of who owns the money a defendant collects for allowing someone to use his MetroCard. So if that's not technical, most of your cases will not be, either.

This is not a new rule of law, but it is a common occurrence, and so worth keeping in mind. This is especially true for two reasons. First, the defendant pled to PL, which normally vitiates any complaints about sufficiency, and the charges were nonetheless dismissed on appeal. That's a strong rule. Second, because the defendant had already served his time, the charges were dismissed outright. That's a pretty good result for reading the accusatory carefully.

Thursday, December 8, 2011

You Say Potato, I Say Potaaato, You Say Robbery in the First Degree, I Say Petit Larceny (Or Robbery in the Third Degree)

by
Jill Paperno
Special Assistant Monroe County Public Defender

1. When Is An Alleged Robbery Not A Robbery? (Was it a forcible stealing?)

Penal Law Section 160 defines robbery as "forcible stealing." The statute states "A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:
1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or 2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aides in the commission of the larceny.

we handle many cases in which a client steals items from a supermarket or store, and engages in a confrontation with security or the owner. Whether that confrontation makes the petit larceny a robbery depends on the particular facts of the case. If the defendant, with steaks tucked neatly wherever steaks may be tucked fights the officers, then there is a basis for a robbery charge. If, however, the defendant, hearing security officers' calls to stop, abandons the property and then fights off the officers, or they fall out before the confrontation, there is no robbery.

In People v. Nixon 156 AD2d 144 (First Dept. 1989) the First Department addressed this issue. Mr. Nixon, apparently smitten and broke, stole roses from a florist's stand. The florist pursued him and a physical confrontation involving the florist and a police officer followed. The roses were not found on Mr. Nixon after the confrontation. The First Department reduced Nixon's conviction from Robbery in the Third Degree to Petit Larceny, stating

"To sustain a conviction of robbery in the third degree, the prosecution must prove that the defendant used force in the commission of the theft (Penal Law § 160.05). More specifically, it must be shown not simply that the incident included the use of force, but that the defendant used or threatened 'the immediate use of physical force upon another person for the purpose of: 1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or 2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny' (Penal Law § 160.00; see also People v. Rudelt, 6 A.D.2d 640, 642, 179 N.Y.S.2d 916; People v. Chessman, 75 A.D.2d 187, 193–94, 429 N.Y.S.2d 224, appeal dismissed, 54 N.Y.2d 1016, 446 N.Y.S.2d 248, 430 N.E.2d 1301). The issue presented by the facts at bar is whether it was established that the defendant did, in fact, use physical force 'for the purpose of ... preventing or overcoming resistance ... to the retention [of the stolen property] immediately after the taking.' We do not think that it was.'"

In People v. Miller 217 AD2d 970 (Fourth Dept. 1995) (an appeal from one of my cases where the appellate attorney did way better than I did!) the Fourth Department recognized the requirement that the use of force be for the purpose of taking or retaining the property.

"In order to sustain a conviction for robbery in any degree, it must be shown that, in the course of committing a larceny, defendant used or threatened the immediate use of physical force upon another person for the purpose of either preventing or overcoming resistance to the taking of the property or the retention thereof or for the purpose of compelling the owner to deliver up the property' ( People v. Smith, 166 A.D.2d 879, 879–880, 560 N.Y.S.2d 718, lv. denied 77 N.Y.2d 882, 568 N.Y.S.2d 925, 571 N.E.2d 95, 78 N.Y.2d 927, 573 N.Y.S.2d 479, 577 N.E.2d 1071; see, Penal Law § 160.00). Thus, if the jury had rejected the prosecution's theory that defendant remained in possession of the stolen property (the meat) at the time that he threatened the use of physical force, the jury could not (emphasis added) have concluded that his 'conscious objective in threatening to use physical force was to prevent or overcome resistance to the retention of the property' ( People v. Kellam, 189 A.D.2d 1008, 1010, 592 N.Y.S.2d 864, citing People v. Nixon, 156 A.D.2d 144, 146, 548 N.Y.S.2d 194, appeal dismissed 76 N.Y.2d 870, 560 N.Y.S.2d 984, 561 N.E.2d 884)."

So when you have one of these cases, consider the statements of the security officers, owner or other witnesses, and whether they indicate the property was no longer on the defendant at the time the confrontation ensued.

2. Robbery in the First Degree - subdivisions 2, 3 and 4

Subdivision 2

While we're on the topic, when is a Robbery in the First Degree properly charged under 160.15(2) or (3) and (4) and what is the difference? Subdivision 2 is the charge that a person forcibly steals property and while doing so, he or another participant "is armed with a deadly weapon." Penal Law Section 10.00 (the definitions section), subdivision 12 defines "deadly weapon" as "any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles or metal knuckles." So if a defendant is alleged to have engaged in a robbery by either threatening or using a weapon that is not shown and not recovered, threatening or using a gun that is not discharged (to establish it is loaded) or threatening or using one of these other types of weapons, you should be able to challenge the indictment with respect to that charge.

Subdivision 3

The definition of robbery under subdivision 3 requires the defendant use or threaten the immediate use of a dangerous instrument. Immediate is the critical word there. In People v. Pena, the Court of Appeals stated, "Decisional law tells us that, though the statutory ground upon which the first degree robbery count was brought is not explicit in that regard (Penal Law, s 160.15, subd. 3), the jury was required to find that Turrell actually possessed a dangerous instrument at the time of the crime (see People v. Early, 59 A.D.2d 912, 399 N.Y.S.2d 145; People v. Briggs, 52 A.D.2d 1053, 384 N.Y.S.2d 894)." Thus, to be convicted of a charge of robbery requiring the use or threat of immediate use of a dangerous instrument, there must be proof beyond a reasonable doubt that the defendant actually possessed a dangerous instrument. (For the definition of dangerous instrument see Penal Law Section 10.00(13). The Court of Appeals, in People v. Grant 17 NY3d 613 clearly stated this past fall that a defendant's statement alone is insufficient to establish his or her possession of a dangerous instrument.

"We now hold, in accord with Appellate Division precedent, that a defendant's statement that he is in possession of a dangerous instrument, standing alone, does not supply sufficient proof to establish actual possession of a dangerous instrument at the time of the crime to support the charge of first-degree robbery. Rather, we conclude that this type of statement—whether in the form of a verbal threat or a handwritten note—only establishes the threat of physical force necessary to support the charge of third-degree robbery. Accordingly, the People must furnish additional proof, separate and apart from a defendant's statement, that would permit a rational fact finder to infer that a defendant was in actual possession of a dangerous instrument ( see Bello, 92 N.Y.2d at 526, 683 N.Y.S.2d 168, 705 N.E.2d 1209). To hold otherwise would blur the distinction created in the carefully calibrated statutory scheme between the lesser included offense of third-degree robbery, a class D non-violent felony ( see Penal Law § 160.05) and the aggravated charge of first-degree robbery, a class B violent felony ( see Penal Law §§ 160.15[3]; 70.02[1][a] ). Indeed, as we stated in Pena, it is the actual “ employment ” of a dangerous instrument that elevates the use or threat of physical force to first-degree robbery ( see 50 N.Y.2d at 408 n. 2, 429 N.Y.S.2d 410, 406 N.E.2d 1347 [emphasis in original] )."

So a defendant who provides a note to a bank teller indicating s/he has a weapon, but does not gesture or actually possess a weapon, may be guilty of Robbery in the Third Degree, but not Robbery in the First Degree.

Subdivision 4

Subdivision 4 requires that the defendant "display what appears to be a pistol, revolver (or other type of gun listed in the statute). The gun does not have to be operational, or even a real gun for a defendant to be charged with Robbery in the First Degree under this statute. In fact, the defendant may be holding his hand in his jacket in order to be charged under this statute. It is an affirmative defense that the gun is not "a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged." Thus, if your client is charged under this statute and the gun is inoperable, or a BB gun, there is insufficient proof of Robbery in the First Degree. But there is proof of Robbery in the Second Degree, 160.10(2)(b). There are the rare cases where you hope your client is caught with the gun, because if the gun is not found, and you do not have another defense, you may have to prove the affirmative defense to get the lesser charge.

Wednesday, December 7, 2011

Consecutive Sentences on Misdeameanors - Statutory Limitations on the Use of Probation to Extend the Sentence

by
Janet C. Somes
Assistant Monroe County Public Defender

Jim's Eckert recently posted a column on consecutive sentences on misdemeanors (see). This post addresses an additional aspect of that issue

Sometimes courts try to extend a person's liability as far out as possible, and use probation on the second offense to do so by imposing a maximum sentence of a year or six months on one crime and imposing a probationary sentence on another. It is important for attorneys (and judges) to know that, in fact, it is impermissible to impose a probation sentence, where the court has imposed another sentence of over 60 days. In other words, a court may not use probation as a rider to extend a person's exposure where it is also imposing a sentence of more than 60 days.

Penal Law § 60.01(2)(d) provides that “[i]n any case where the court imposes a sentence of imprisonment not in excess of sixty days, for a misdemeanor . . . it may also impose a sentence of probation . . .” Even where sentences are imposed upon separate charges or counts, the provisions of Penal Law 60.01 (2)(d) apply to prohibit the imposition of a sentence of probation as to one charge, where a sentence of imprisonment in excess of the limits set forth therein (60 days for a misdemeanor) have been imposed on another charge (see People v Cerilli, 80 NY2d 1016 [1992][sentencing court’s imposition of probation, along with a term of incarceration on a separate charge in excess of that permitted under PL 60.01 (2)(d), prohibited]; People v Curkendall, 141 AD2d 891 [3d Dept 1988] [imposing sentence in excess of 60 days for misdemeanor and five year probation for felony did not comply with statutory proscriptions for sentencing on more than one crime]; People v Singh, 213 AD2d 568 [2d Dept 1995][impermissible to impose sentence of probation on one felony count and a sentence of imprisonment in excess of six months on another felony count - - appellate court vacated “split” and imposed the definite sentence only]; People v Bucci, 122 AD2d 562 [4th Dept 1986][sentencing defendant to intermittent incarceration in excess of four months on one charge, and probation on the other, prohibited]; People v McIntyre,135 AD2d 920 [3d Dept 1987] [sentencing defendant to incarceration in excess of six months for one felony count and probation on the other, prohibited]; People v Edwards, 108 AD2d 686 [2d Dept 1985] [sentencing defendant to incarceration in excess of 60 days for misdemeanor, and probation, prohibited]).

This prohibition applies even where crimes are unrelated, non-transactional and ordered to run concurrent or consecutive. The reason a court may not impose a concurrent sentence of probation on a defendant who is also sentenced to imprisonment on another charge is because probation is inappropriate for a defendant who is incarcerated as the basic purpose of probation is to provide supervision for an offender without removing him from the community (Cerilli, 80 NY2d 1016). And, a court may not impose a sentence of probation in any case, where a defendant has an undischarged sentence of incarceration of more than one year on a previous crime (Penal Law § 65.00 [1][b][iv]).

Friday, December 2, 2011

Consecutive Sentences on Misdemeanors

by

James Eckert
Assistant Monroe County Public Defemder

I previously dealt with consecutive sentences, which are not permitted where a single act or omission represents two separate crimes, or where one offense also represents a material element of another Penal Law Section 70.25(2). In either case, the sentences on two such offenses must be concurrent. The only exception, permitting consecutive sentences, is for wearing a soft body vest under PL 270.20.

There is a broader prohibition in the case of misdemeanors, however. Penal Law 70.25(3) provides that where "consecutive definite sentences of imprisonment are not prohibited by subdivision two of this section [the rules mentioned above] and are imposed on a person for offenses which were committed as parts of a single incident or transaction, the aggregate terms of such sentences should not exceed one year."

"In any event, even assuming that consecutive definite sentences were authorized, such sentences could not total more than one year under Penal Law § 70.25(3). That statute provides that the aggregate of the terms of such sentences shall not exceed one year if the crimes were committed as parts of a “single incident or transaction”. The Legislature's use of that language, as well as the structure of the statute itself, makes it clear that “incident or transaction” is a broader concept than “act or omission” (see, Penal Law § 70.25[2], [3]; People v. Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 472 N.E.2d 29; cf., CPL 40.10[2] ). Regardless of whether defendant's crimes stem from distinct “acts”, they were not committed during separate “incidents or transactions” (compare, People v. Booth, 119 A.D.2d 758, 759, 501 N.Y.S.2d 166 with People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). There was only one foray onto the college campus, and only one encounter with the purveyor of stolen goods. Defendant's acquiescence in the court's erroneous assertion that there were “two crimes” or “events” does not waive the protection of Penal Law § 70.25(3) (People v. Lopez, supra; People v. Judkins, supra; People v. Pellegriti, supra ). Therefore, we modify the judgment by providing that the sentences run concurrently."

People v. Taylor, 197 A.D.2d 858, 859 (1993).

Even where there is an agreed-upon sentence which violates this subdivision, the illegal sentence is not enforceable:

"Defendant was convicted, upon a plea of guilty, of criminal trespass, second degree (Penal Law, § 140.15) and resisting arrest (Penal Law, § 205.30). He was sentenced to a one year term on each charge, to be served consecutively. The People claim that the sentence was a result of a plea bargain and that defendant waived his rights under the Penal Law (§ 70.25, subd. 3). While the offenses were not committed through a single act or omission and one offense does not constitute a material element of the other (Penal Law, § 70.25, subd. 2), they did arise from a single incident. Therefore, imposition of consecutive definite sentences aggregating more than one year was improper (Penal Law, § 70.25, subd. 3; People v. Silvagnio, 79 A.D.2d 1112, 435 N.Y.S.2d 866; People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). The waiver argument is without merit because the court does not have authority to enlarge its statutory sentencing power (People v. Selikoff, 35 N.Y.2d 227, 238, 360 N.Y.S.2d 623, 318 N.E.2d 784; People v. Lopez, 28 N.Y.2d 148, 320 N.Y.S.2d 235, 269 N.E.2d 28).
Accordingly we modify the sentence for resisting *951 arrest by directing that it run concurrently with the sentence for criminal trespass, second degree. Judgment unanimously modified on the law and as modified affirmed."

Sunday, November 20, 2011

Due Process and SORA Risk Level Assesment

In People v Hackett (2011 NY Slip Op 08061 [4th Dept 11/10/11]), the Appellate Division, Fourth Department, vacated defendant's risk level determination, and remitted the matter to County Court for a new risk level determination, where the assessment was based, in part, on factors that had neither been selected on the risk assessment instrument nor raised by the People at the hearing. The Court held that
the court violated his due process rights by sua sponte assessing those additional points. The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment (see § 168-n [3]; People v David W., 95 NY2d 130, 136-140). Here, neither risk factor was originally selected on the RAI or raised by the People at the SORA hearing, and defendant learned of the assessment of the additional points for the first time when the court issued its decision (cf. People v Wheeler, 59 AD3d 1007, lv denied 12 NY3d 711).

An Idea That Might Get Prosecutors To Stop Asking Defendants If The Prosecution Witnesses Lied

Parents and teachers know you're more likely to achieve desired behaviors if there are consequences for disobedience. Appellate courts, when dealing with improper conduct by prosecutors, seem unaware of this simple rule. So they repeatedly criticize prosecutorial misconduct in appellate decisions which affirm the conviction. Then they wonder why trial attorneys persist in the behavior which resulted in the conviction and then the affirmance. For example, in People v Washington (2011 NY Slip Op 08404 [4th Dept [11/18/11]), the Court wrote that

Defendant contends that he was denied a fair trial based on the prosecutor's improper questions on cross-examination concerning whether the prosecution witnesses were lying or were liars. That contention is not preserved for our review inasmuch as defendant failed to object to those questions (see CPL 470.05 [2]), and we decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We note, however, that such questions were improper (see People v Paul, 229 AD2d 932; People v Paul, 212 AD2d 1020, 1021, lv denied 85 NY2d 912; People v Edwards, 167 AD2d 864, lv denied 77 NY2d 877). As this Court stated over 20 years ago, "[o]n numerous occasions, we have forcefully condemned prosecutorial cross-examination which compels a defendant to state that witnesses lied in their testimony" (People v Eldridge, 151 AD2d 966, 966, lv denied 74 NY2d 808). Unfortunately, we find it necessary once again to forcefully condemn such improper conduct by the prosecutor.

Perhaps if the Court, confronted by persistent misconduct, exercised its interest of justice jurisdiction and reversed, trial prosecutors would get the message and finally stop asking these improper questions. And if that seems too much, maybe the Court could deter the misconduct by simply naming in its decision the trial prosecutor who engaged in misconduct. The current practice of affirming while noting that the unnamed prosecutor acted improperly is a demonstrated failure at impacting behavior.

Are Calibration and Simulator Solution Certificates Used in Verifying the Accuracy of the Breathalyzer Test Testimonial?

In Melendez-Diaz v Massachusetts (129 S.Ct. 2527 [2009]), the Supreme Court held that it violate the right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of a person who performed the test subject to confrontation. Thus, the admission at trial of three sworn “certificates of analysis” or affidavits showing the results of the forensic analysis performed on samples of the seized white powder was reversible error where the analyst did not testify. The Court rejected the ideas that the right to confrontation only applied when the evidence accused someone of a crime or didn’t apply to scientific tests, noting that crime labs have provided unreliable evidence in the past, and said that confrontation would help find the truth.

This year, in Bullcoming v New Mexico (564 U.S. __,131 S.Ct. 2705 [2011]), the Court held that under the confrontation clause “the accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”

In People v Pealer (2011 NY Slip Op 08397 [4th Dept 11/18/11]) considered whether these holding apply to the calibration and simulator solution certificates used in verifying the accuracy of the breathalyzer test. The problems with the reliability and accuracy of such certificates was revealed in a 1987 Pennsylvania audit report (http://www.ridl.us/phpBB2/viewtopic.php?f=1&t=294). The Fourth Department rejected the contention that these documents were testimonial subject to the right to confrontation, holding that

the statements contained in the breath test documents are not accusatory in the sense that they do not establish an element of the crimes. Indeed, standing alone, the documents shed no light on defendant's guilt or innocence. The only relevant fact established by the documents is that the breath test instrument was functioning properly. The functionality of the machine, however, neither directly establishes an element of the crimes charged nor inculpates any particular individual. Thus, the government employees who prepared the records were “not defendant's accuser[s]' in any but the most attenuated sense”, and the breath test documents were properly admitted in evidence over defendant's objection based on the Confrontation Clause (internal citations omitted).

It should be noted that some local courts have held otherwise (People v Carreira, 27 Misc3d [Watertown City Ct 2010]; People v. Heyanka, 25 Misc3d 978 [Dist Ct Suffolk Co 2009]).

Thursday, November 10, 2011

Fourth Department - In SORA Hearing, Addition of Points Sua Sponte Violates Due Process

While the remedy was merely remand for a new hearing, this decision could prove important if it stops a court from assessing points at the SORA hearing. It's also an important reminder that SORA is a contested process where the People bear the burden.

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1236 KA 11-00285

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V
PATRICK HACKETT, DEFENDANT-APPELLANT.

WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (NORMAN P. EFFMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM OF COUNSEL), FOR RESPONDENT.

Appeal from an order of the Cattaraugus County Court (Larry M. Himelein, J.), dated January 25, 2010. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Cattaraugus County Court for further proceedings in accordance with the following Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.), defendant contends that County Court miscalculated his total risk factor score in the risk assessment instrument (RAI), and thus mistakenly determined that he was presumptively a level three risk based on that score. We agree with defendant. In fact, pursuant to the correct total risk factor score in the RAI, defendant is presumptively classified as a level two risk. We note, however, that the court also sua sponte assessed additional points under risk factor 3 (Number of Victims) and risk factor 4 (Duration of Offense Conduct with Victim) in the RAI, which then rendered defendant a presumptive level three risk. We further agree with defendant that the court violated his due process rights by sua sponte assessing those additional points. The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment (see § 168-n [3]; People v David W., 95 NY2d 130, 136-140). Here, neither risk factor was originally selected on the RAI or raised by the People at the SORA hearing, and defendant learned of the assessment of the additional points for the first time when the court issued its decision (cf. People v Wheeler, 59 AD3d 1007, lv denied 12 NY3d 711). We therefore reverse the order, vacate defendant’s risk level determination, and remit the matter to County Court for a new risk level determination, and a new hearing if necessary, in compliance with Correction Law §168-n (3) and defendant’s due process rights.

Decided November 10, 2011

Tuesday, October 25, 2011

Involuntary Deportation Is Not A Basis For Dismissal Of An Appeal To The Appellate Division

In People v Ventura (2011 NY Slip Op 07475 [10/25/11]) the Court of Appeals held that it is an abuse of discretion for intermediate appellate courts to dismiss an appeal because of the involuntary deportation of the appellant. The Court explained that
courts have been inclined to dismiss appeals pursued by physically absent defendants because they voluntarily absconded, forfeiting their right to appeal. This Court has previously reasoned that "it [is] essential to any step, on behalf of a person charged with a felony after indictment found, that he should be in custody; either actual . . . or constructive" as "the whole theory of criminal proceedings is based upon the idea of the defendant being in the power, and under the control of the court, in his person" (People v Genet, 59 NY 80, 81 [1874]). Accordingly, dismissals have been predicated primarily on a policy-based rationale that courts should not aid in the deliberate evasion of justice through continued consideration of appeals...Here, this policy concern is not present. {Appellant;s] were involuntarily removed from the country and their extrication lacked the scornful or contemptuous traits that compel courts to dismiss appeals filed by those who elude criminal proceedings. Rather, they, and other similarly situated defendants, have a greater need to avail themselves of the appellate process in light of the tremendous ramifications of deportation...The invariable importance of the fundamental right to an appeal, as well as the distinct role assumed by the Appellate Divisions within New York's hierarchy of appellate review (see NY Const Art. 6, § 5; see e.g., CPLR 5501 [c]), makes access to intermediate appellate courts imperative...
Finally, in our view, the perceived inability to obey the mandate of the court is not implicated here. In other jurisdictions, defendants who continue prosecution of their appeals through representation of counsel are not deemed unavailable to obey the mandate of the court (see People v Puluc-Sique, 182 Cal App 4th 894, 899 [Ct App 2010]). Moreover, disposition of the discrete appellate issues would result in either an affirmance or outright dismissal of the convictions; neither outcome would require the continued legal participation of defendants.

Thursday, October 20, 2011

Sealed Records Cannot Be Obtained Solely For Use In Pending Criminal Proceedings

The sealing requirement of CPL 160.50 "was designed to lessen the adverse consequences of unsuccessful criminal prosecutions by limiting access to official records and papers in criminal proceedings which terminate in favor of the accused" http://www.blogger.com/img/blank.gif(Matter of Harper v Angiolillo, 89 NY2d 761, 766 [1997. The limited exceptions to the sealing requirement are to be strictly construed in accordance with this purpose.

In Matter of Albany County Dist. Attorney's Off. v William T. (2011 NY Slip Op 07339 [3d Dept 10/20/11]) the Appellate Division, Third Department reversed a County Court order which granted an ex parte application, made on behalf of the prosecutor and police department involved in a pending out of state prosecution, to unseal the records from a dismissed and sealed prior case for use in the pending criminal proceedings. The Court explained that

petitioner relied upon an exception that permits a law enforcement agency to obtain the release of sealed records if "justice requires that such records be made available to it" (CPL 160.50 [1] [d] [ii]). The Court of Appeals has clarified, however, that "[t]he statute's . . . primary focus is the unsealing of records for investigatory purposes" and, as such, the exception is analogous to other investigatory tools employed to uncover criminal conduct "prior to commencement of a criminal proceeding" (Matter of Katherine B. v Cataldo, 5 NY3d at 205 [emphasis added]). Apart from a "singular circumstance" not present here, the exception does not apply to a prosecutor — such as the Pennsylvania district attorney prosecuting respondent's case — seeking sealed records "after commencement of a criminal proceeding" (id.; see Matter of Akieba Mc., 72 AD3d 689, 690 [2010]; Preiser, 2005 Supp Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 160.50, 2011 Supp Pamphlet, at 125-126). A Pennsylvania police department also sought the records, but there is no indication that its "investigation" was in any way separate — at the time of the request — from the pending prosecution. Indeed, the only reasons given for seeking the records were for their admission at trial, as well as to assist in respondent's sentencing and evaluation for sex offender registration purposes.

Saying "I Have A Gun" Does Not Prove That One Has A Gun

by
James Eckert, Assistant Monroe County Public Defender

Is a note saying "gimme all your money, I have a gun" legally sufficient to prove robbery while in actual possession of a firearm readily capable of causing death or other serious physical injury?

That is the question considered by the the Court of Appeals in, People v Grant (_NY3d_ [10/20/11) at (see). Grant dealt with a reduction based on Grand Jury minutes, wherein the only proof of the existence of a gun and its capacity to cause serious physical injury or death was a note threatening the bank teller, saying that the defendant had a gun and if she didn't give him the money he'd shoot. We're not talking trial proof. Four judges of the Court of Appeals held that a note saying the defendant had a gun was not prima facie evidence of the actual existence and possession of a gun readily capable of shooting anyone.
First degree robbery, subdivision three, requires that defendant "actually possessed a dangerous instrument at the time of the crime". PL 160.15(3) reads "uses or threatens the immediate use of a dangerous instrument". It is subdivision four which allows a robbery conviction for possession of a finger, if that finger "appears to be a pistol, revolver ...". Subdivision three has been held to require an actually existing weapon (People v Pena, 50 NY2d 400 [1980]). In Pena, defendant had a paper bag over his hand and threatened to shoot. When apprehended shortly after, Pena had the bag, which contained a knife. The Court of Appeals ruled that under subdivision three "it was the employment of such an instrumentality that was significant" (Pena, footnote 2). The Court held that the proof showed that Pena had a knife at the time of the robbery and that he used that knife to threaten the victim. Apparently, nobody understood how knives worked back in 1980.

Nonetheless, as the majority noted in Grant, all four departments interpreted Pena to mean that a defendant, under 160.15(3), had to actually possess an actual weapon. A mere threat to harm someone with a weapon is not sufficient. Thus, the defendant's statement that he has a gun, without other proof of actual possession, is insufficient to prove the existence of such a gun. "Absent some other corroboration that defendant actually possessed a dangerous instrument" the grand jury could not rationally have drawn the guilty inference. The dissenters were prepared to hold that actual possession was not required, except the prosecution abandoned that position on appeal! Nonetheless, the dissent would have held that defendant's "admission" (I'd call it a mere claim coupled with ample incentive to lie) was sufficient to prove the fact admitted. Further, the dissent would have held that the defendant's threat to shoot was sufficient proof of operability which would have, if unexplained and uncontradicted, permitted a jury to convict (effectively shifting the burden to the defense). The dissent was willing to admit that some threats could be too vague to sustain the grand jury, much less a conviction (e.g. "if you don't keep your dogs quiet I'm going to destroy the earth" might be insufficient to prove possession of a fully operational Death Star).

The Grant decision has application beyond robbery first under subdivision three. If the defendant's admission of a fact is, without more, insufficient proof of that fact even at Grand Jury, then we should be looking for and challenging the absence of corroboration in other areas.

Thursday, October 13, 2011

Weight Of Evidence Review Must Be Manifest In Appellate Division Decision

When an appellant urges that the weight of the credible evidence does not support the conviction, the decision of the intermediate appellate court must reflect that the court exercised its authority, sitting like a thirteenth juror, to assess http://www.blogger.com/img/blank.gifwhether the evidence supports the conviction. Thus, in People v Brown (2011 NY Slip Op 07146 [10/13/11]), where the order of that Appellate Division manifested a lack of application of that review power, the Court of Appeals reversed a conviction and remitted for a proper assessment of the weight of the evidence

Monday, October 10, 2011

Double Jeopardy and the Princess Bride

Among the many important life lessons set forth in The Princess Bride is the distinction between dead and mostly dead:
Miracle Max: It just so happens that your friend here is only mostly dead. There's a big difference between mostly dead and all dead. Mostly dead is slightly alive. With all dead, well, with all dead there's usually only one thing you can do.
Inigo Montoya: What's that?
Miracle Max: Go through his clothes and look for loose change.

As the decision of the Appellate Division, Fourth Department, in People v Sanders (2011 NY Slip Op 07100 [4th Dept 10/7/11]) shows, that distinction parallels the distinction between a void conviction and a voidable one. One is as though it never was. And the other, invalidly obtained is still slightly alive.

In Sanders, the Court considered the application of the double jeopardy protections to a voidable conviction. Upon Mr. Sanders' convictions for Criminally Negligent Homicide and Assault the People sought persistent felony offender status for defendant based, in part, on his 2003 assault conviction. Sanders opposed persistent felony offender status on grounds that his 2003 guilty plea was to a charge not contained in the felony complaint and not a lesser included offense, and that his right to be indicted by a grand jury had thus been violated . The court agreed with defendant, finding "that the [*2]defendant's conviction . . . in 2003 was jurisdictionally defective and a nullity and cannot be counted in determining that he is a persistent felony offender" (People v Sanders, 24 Misc 3d 1232[A], 2009 NY Slip Op 51693[U], *2).

While the 2003 conviction was jurisdictionally defective and voidable, Sanders never moved to vacate it. Despite the fact that the 2003 conviction had never been vacated, the People proceeded to present evidence of the assault upon that conviction was based to a grand jury and obtained an indictment charging Sanders with assault in the first degree based upon the same incident for which he had pleaded guilty to assault in the second degree in 2003. The County Court granted Sanders' motion to dismiss on double jeopardy grounds, since the 2003 conviction had not been vacated. The People appealed and the Appellate Division, Fourth Department affirmed even though the 2003 conviction was based on a jurisdictionally defective SCI. Relying on Matter of Campbell v Pesce (60 NY2d 165), the Court held that
Although the constitutional Double Jeopardy Clauses do not bar a second prosecution where the prior judgment of conviction has been vacated upon the defendant's motion or appeal because of an error in the proceedings (see Lockhart v Nelson, 488 US 33, 38; United States v Tateo, 377 US 463, 465-467), the 2003 judgment of conviction has never been vacated. The judgment of conviction is still on defendant's criminal record and would presumably remain on his record even if he were convicted in the instant prosecution. We do not see how there can be two separate convictions on defendant's record for the same offense without implicating the constitutional prohibition against double jeopardy.

Friday, September 30, 2011

Just Because Parker Warnings Were Given Doesn't Mean Trial Can Proceed In Absentia

In reversing a conviction after a trial held in absentia, the Fourth Department, in People v Houghtaling (4th Dept 9/30/11), explained

that County Court erred in conducting the trial in his absence. Even assuming, arguendo, that the court advised defendant of the scheduled trial date and warned him that the trial would proceed in his absence if he failed to appear (see generally People v Parker, 57 NY2d 136, 141), we conclude that the court failed to inquire into defendant’s absence and to recite “on the record the facts and reasons it relied upon in determining that defendant’s absence was deliberate” (People v Brooks, 75 NY2d 898, 899, mot to amend remittitur granted 76 NY2d 746; see People v Dugan, 210 AD2d 971, 972, lv denied 85 NY2d 972).

One Can't Waive Indictment After Being Indicted

In People v Spencer (4th Dept 9/30/11) the Appellate Division, Fourth Department, reversed a conviction and vacated a Superior Court Information (SCI) where the defendant pled guilty pursuant to a SCI after he was indicted for a crime arising from the same incident. As the Court explained the
waiver of indictment was invalid inasmuch as there is no evidence in the record before us that a local criminal court held him over for the action of a grand jury on the charges in the superior court information (SCI). Defendant is correct that his contention “is a jurisdictional one which survives his appeal waiver and guilty plea”
(People v Dennis, 66 AD3d 1058, 1058; see People v Boston, 75 NY2d 585, 589 n), and we agree with defendant that his contention has merit. As the record establishes, at the time defendant waived indictment and consented to be prosecuted by an SCI, he had already been indicted on the burglary charges, which arose from the same incident. Consequently, we agree with defendant that, “[g]iven the objective and the plain language of CPL 195.10 (2) (b), the conclusion is inescapable that waiver cannot be accomplished after indictment, as was the case here, even where it is the defendant who orchestrates the scenario” (Boston, 75 NY2d at 589). We therefore reverse the judgment in appeal No. 2, vacate the sentence imposed, and dismiss the SCI.

Frank Sterling and the Denial of a Motion for DNA Testing

In an earlier post today, I wrote about Mark Christie pled guilty this week to the murder for which an innocent man, Frank Sterling, had served 18 years in prison, prior to his exoneration (see). As I discussed, one of the many reasons it took so long to establish Frank Sterling's actual innocence is that the trial court denied a motion pursuant to CPL 440.30(1-a), for DNA testing. Then, compounding the problem, the Appellate Division, Fourth Department affirmed this ruling (37 AD3d 1158[4th Dept 2007]), denying the innocent Mr. Sterling access to the evidence which, when eventually obtained, helped prove his innocence.

So it was kind of shocking to see that in People v Woodrich (4th dept 9/30/11) the Appellate Division, Fourth Department, cited its decision in Sterling as the authority for rejection another inmates' motion for DNA testing:
County Court properly denied the motion “because defendant failed to establish that there was a reasonable probability that, had those items been tested [further] and had the results been admitted at trial, the verdict would have been more favorable to defendant” (People v Sterling, 37 AD3d 1158).

Leave To Appeal Generally Required to Challenge Restitution Order

The Appellate Division, Fourth Department, in People v LaVilla (4th Dept 8/30/11) has again held that an exception to the general rule that cannot be appealed as of right is when the restitution hearing was bifurcated from sentencing:

“[a]s a general rule, a defendant may not appeal as of right from a restitution order in a criminal case . . . Here, however, [County C]ourt bifurcated the sentencing proceeding by severing the issue of restitution for a separate hearing, and thus ‘defendant may properly appeal as of right from both the judgment of conviction . . . and the sentence as amended . . ., directing payment of restitution . . ., [with] no need to seek leave to appeal from [the] order of restitution’ ” (People v Brusie, 70 AD3d 1395, 1396).

Wrongful Convictions and the Exclusion of Expert Testimony on False Confessions

The headline in today's Rochester Democrat and Chronicle was that Mark Christie had pled guilty to the 1988 murder of Viola Manville. This plea follows the April 28, 2010 vacateur of the 1992 Monroe County murder conviction of Frank Sterling for that very murder. (For a detailed account of the Frank Sterling case, see).

As was the case with such other wrongful conviction exonerations in which the Fourth Department had affirmed the wrongful convictions, such as that of Freddie Peacock, Douglas Warney, and Betty Tyson, the primary evidence against Mr. Sterling was a false confession.

Additionally, since 1992 there was evidence that Mark Christie had accurately confessed to the murder for which Mr. Sterling was charged. And yet after Mr. Sterling was convicted, the court refused to even hold a hearing on a 330 motion based on the evidence of Mr. Christie's admissions. And then the Appellate Division, Fourth Department affirmed the conviction (209 AD2d 1006 [4th Dept 1994]), rejecting arguments that the confession was unreliable and that a hearing should have been ordered.

When more witnesses came forward with evidence that Christie had committed the murder a 440 motion was filed and denied. Again, the Appellate Division, Fourth Department affirmed the ruling denying the innocent Mr. Sterling a new trial (267 AD2d 1053 [4th Dept 1999]).

Mr. Sterling then moved, pursuant to CPL 440.30(1-a, for DNA testing. This motion was denied (6 Misc3d 712 [Mon Co 2004]), on a finding that "the defendant has failed to demonstrate that a reasonable probability exists that a more favorable outcome at trial would have been forthcoming had the results of any DNA testing of the http://www.blogger.com/img/blank.gifaforementioned items been introduced at his trial." The Appellate Division, Fourth Department affirmed the ruling denying the innocent Mr. Sterling access to the evidence which would eventually help prove his innocence (37 AD3d 1158[4th Dept 2007]).

Ultimately, despite these court rulings, testing was done and Mr. Sterling's innocence was established. The courts' reliance on a false confession after a twelve hour interrogation, of which only 20 minutes were recorded, led to the repeated affirmance of a wrongful conviction. As a result, Mr. Sterling was in prison for 18 years for murder he did not commit.

False confessions are present in about a quarter of the wrongful convictions exonerated by DNA evidence (see). Clearly, not just juries, but appellate courts, have difficulty recognizing and distinguishing false confessions from reliable one. Yet, in People v Walker (4th Dept 9/30/11)) the Court held that a trial court

did not err in refusing defendant’s request to allow defendant to present the testimony of a false confessions expert. It is well established that the admissibility of expert testimony is addressed primarily to the sound discretion of the trial court (see People v Cronin, 60 NY2d 430, 433), and here we conclude that the court properly determined that the expert did not possess a professional or technical knowledge that was beyond the ken of the average juror (see People v Hicks, 2 NY3d 75).

By not requiring the admission of such testimony or the giving of an adverse inference instruction regarding the failure to record interrogations (see) the Court is insuring that future juries will credit statements obtained after unrecorded interrogations in future cases, sometimes from innocent defendants..

Wednesday, September 21, 2011

New Website and Online Forum for Rochester Area Criminal Defense Attorneys

The Monroe County Public Defender's Office has introduced a new website (see) which, in part, contains links to some of that office's excellent training materials (see) and to numerous helpful articles on aspects of New York criminal law authored by Jim Eckert (see), a frequent contributor to this blog.Additionally, the website is a portal to the "Defender Discussion Forum".

The forum, is a bulletin board that will allow defense attorneys (criminal and family court) to post topics on issues of concern to the defense community, seek advice on any issues they may have, or help other attorneys with advice on problems or issues. In addition to an area where defense attorneys can assist one another in resolving issues or addressing common concerns, the forum will be a place for posting helpful information such as CLE materials for CLEs conducted by the Monroe County Public Defender's Office.The forum contains multiple subject areas (moderated by experienced attorneys) relevant to representing persons in the criminal and family courts of Monroe County.

The forum is not a listserv. In order for an attorney to see the posts on the forum, read responses, download documents, or post to the forum one must sign-on to the forum. Posts will not be automatically emailed to particpants unless one chooses that as an option. (To have posts emailed to you automatically, you must "subscribe" to the sub-forum in which you wish to receive posts by email. To do this, go to the Forum, select a sub-forum [e.g., "Discovery"] you would like to subscribe to and look in the lower right hand side of the forum page, just above "Jump to box" and click "Subscribe Forum". If you ever want to stop getting the emails, go back and click "unsubscribe forum".)

In order to have access to the Defender Discussion Forum, one must first register for a name and password. If you are a defense attorney who practices in the criminal courts and/or family courts of the greater Rochester area you are welcome to join. To register, please go to the Monroe County Public Defender website here.Click on "Legal Information" and "Defender Discussion Forum". You will then be taken to a sign-on screen where you can begin the registration process. You will be asked to supply a username, password, and email address. Once you have registered, you may be contacted by the board administrator, prior to your registration being approved, for additional information to confirm that you are a member of the assigned counsel program (criminal or family court), an employee of an institutional defender office, or an attorney in private practice who represents persons in the criminal and/or family courts in the greater Rochester area. This information will not be shared with anyone. (Should you have any problems registering with the Forum, please feel free to contact our Forum administrator, Jim Eckert at jeckert@monroecounty.gov.

Please keep in mind that although registration will be limited to defense attorneys who represent clients in criminal court or family court, the Public Defender's office cannot control how information posted to the forum is disseminated. Thus, anything one posts to the forum is not "private". Also, the forum is for a discussion of issues, so please refrain from personal attacks on judges, other attorneys, or litigants, or expressing views on a subject not directly related to defense work.

Caveat:The Defender Discussion Forum is provided as a service to the defense community. The information contained on the forum is provided as a service to the defense bar, and does not constitute legal advice. Although the goal is to provide quality information, the Monroe County Public Defender make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in the forum. As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for your own research. Therefore, Monroe County and the Monroe County Public Defender Office expressly denies liability and undertakes no responsibility for the reliance on, or consequences of, using information or services found in the forum.

Friday, September 16, 2011

Leave Applications Must Raise All Federal Issues Raised on Appeal

Appellate attorneys in drafting an application for leave to appeal the New York Court of Appeals want to highlight the issue or issues most likely to be deemed worth y of the attention of that Court. As former Clerk of the Court, Stuart Cohen explained the issues most likely to warrant a grant of leave toappeal are:
1. Those on which the judicial departments of the Appellate Divisionhave split;2. Those presenting questions of widespread, statewide impact or offirst impression;3. Those involving recent U. S Supreme Court decisions and how theyare to be applied in New York (e.g., should New York adopt a differentrule under the State Constitution, under which it may give greater rights than those given under the Federal Constitution);4. Those possibly determined erroneously in a published writing at the intermediate appellate court, which may mislead other courts, the bar and the public;5. Those involving construction of new statutory schemes.
Thus, those are the types of issues that should be emphasized in drafting a leave application. But it is poor lawyering and harmful to one's clients to only include such issues in the application. Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.Interpreting this exhaustion requirement, the United States Supreme Court in O’Sullivan v Boerckel (526 U.S. 838 [1999]) held that a prisoner who fails to present his claims in a petition for discretionary review to a state court of last resort has not properly presented his claims to the state courts. Thus, to insure that all federal issues raised on appeal can be considered in a federal habeas proceeding counsel must include them in the leave application. In Harris v Fischer (I2d Cir 9/9/110 (see) the Court of Appeals for the Second Circuit reviewed a District Court (Telesca,J.) holding that the petitioner had procedurally defaulted his claim because he insufficiently alerted the Court of Appeals to the claim in his letter application. In finding that the District Court had erred the Court explained
We have previously held that if a defendant's leave application presents his claims in such a way that "eliminate[s] issues as to which review had been expressly requested," Morgan v. Bennett, 204 F.3d 360, 371 (2d Cir.), cert. denied, 531 U.S. 819 (2000), those issues are procedurally defaulted and cannot be asserted in a subsequent federal habeas petition. On the other hand, if a defendant's leave application "clearly state[s] that he [is] pressing all of the claims raised in [an] attached [Appellate Division] brief," the Court of Appeals is considered to have been fairly apprised of all of those claims. Jordan v. Lefevre, 206 F.3d 196, 199 (2d Cir. 2000). We have found such a clear statement within a leave application that briefly but "expressly `request[ed] this Court to consider and review all issues outlined in defendant-appellant's [attached] brief.'" Morgan, 204 F.3d at 370-71 (citing defendant's letter application).In this case, Harris's leave application to the New York State Court of Appeals discussed only his Brady and fair-trial claims in detail, but concluded with a request that "this Court consider and review all issues outlined in appellant's [Appellate Division] brief." (Appellant App. 135). Although Harris had discussed one section of the brief at length in his letter, he unambiguously stated that he wished to press "all" of the issues he had presented to the Fourth Department, including his affirmative defense claim.

Thursday, September 8, 2011

Some More Thoughts on Alibi Cases

Jill Paperno's post on alibi cases (see), has provoked these additional thoughts about the subject by two of her colleagues at he Monroe County Public Defender's Office:

Comments on SOME THOUGHTS ON ALIBI CASES
By David Juergens
Assistant Monroe County Public Defender

CPL 250.20 (1) requires the People to serve their demand for notice of alibi “not more than twenty days after arraignment.” Often, the People attempt to satisfy this statutory requirement by adding a boilerplate paragraph to their CPL 710 notice (attached to the indictment).
A defense attorney may wish to challenge the facial sufficiency of the People’s demand for notice of alibi, arguing that the People’s “demand” is defective on its face for lack of specificity. Typically, no date, time or place for the alleged crime(s) will be set forth in the “demand” paragraph itself. Therefore, to the extent that the indictment itself also lacks specificity as to date, time or place, the People have failed to provide facts that are essential for the establishment of an alibi defense (i.e., “that at the time of the commission of the crime charged [the defendant] was at some place or places other than the scene of the crime” (CPL 250.20 [1]).
If the People supply the missing information in a Bill of Particulars, you can argue that the People must nevertheless renew their demand for notice of alibi (which triggers a new eight-day service period for the defense). If the Bill of Particulars is served more than twenty days after arraignment, the demand for notice of alibi (even if renewed) is untimely. Whenever the People argue for strict compliance with the requirements of CPL 250.20, it should be argued, if possible, that the People themselves did not comply with the statute. Stated simply, boilerplate demands are insufficient to trigger the defendant’s statutory obligation to provide the People with a list of alibi witnesses.
The lack of specificity problem becomes even more acute where the defendant would admit to being at the crime scene at some point during the date(s) alleged in the indictment. For example, where the People specify the date, but not the time for an alleged crime, and the defendant undoubtedly was present at the scene of the crime on the same date, the defendant is not in a position to serve a specific “notice of alibi’ in response to the People’s vague demand. If the defendant was present at the scene of the crime during the only time period specified by the prosecution (a certain date), he cannot be expected to file a “notice of alibi.”

By James Eckert
Assistant Monroe County Public Defender

If the prosecution was permitted to demand an alibi for all the time covered by their non-specific allegations, they would benefit from their own vagueness. On the other hand, if the defendant were excused from serving a notice of alibi if he was at the scene of the crime during some part of the DA's vast time period, then the incentives would be properly balanced, it seems to me. If you want a notice of alibi for when something took place, tell us when it took place. You can't say "March, 2007" and expect the defendant to account for his whereabouts for the entire month, and then preclude him from putting on alibi evidence for a specific date and time during March when that date and time become important.
If the prosecution cannot specify when their crime took place, they have to take the bad with the good. If a defendant was present at the scene of the crime during any part of the People's allegation, then I think he ought to be relieved from serving a notice of alibi (serving a notice is much safer, I'd make this argument when you find yourself in extremis).

Wednesday, September 7, 2011

SOME THOUGHTS ON ALIBI CASES

by
Jill Paperno
Second Assistant Monroe County Publiv Defender

Every now and then, we as defense attorneys are confronted with the possibility, and perhaps the necessity, of introducing evidence of alibi (at the time of the commission of the crime charged the defendant was at some place or places other than the scene of the crime). For most of us, our initial inclination is to run for cover. But in that rare case where alibi is the defense of choice, defense counsel has to know the law, investigate and prepare well. (Wait- isn’t that what we’re supposed to do in all cases?)

FIRST – WHAT TO DO WHEN THE INFORMATION IS PRESENTED TO YOU

If you are informed by your client or other people – perhaps family members or friends – that your client could not have been present at the time of the incident because he or she was some other place, think like a cop or prosecutor – what are the holes in the story? Are there things that don’t make sense? Can you prove the alibi?

In this age of technology, you may be able to prove an alibi with documents generated as a result of purchases, travel or even internet usage. (Uh-oh – make sure you are not generating other charges.) Or you may be able to obtain video recordings from cameras monitoring businesses or even street corners. For much of this kind of proof, time is of the essence. So if you learn of a possible alibi, get an investigator and get moving. Begin to accumulate any evidence there may be – receipts, travel documents, etc. When you acquire the documents, make sure you preserve them in a way that you can retrieve them later for trial, and establish a chain of custody.

TO TELL OR NOT TO TELL?

Do you let the prosecutor know of your alibi early in the case before it is statutorily required? It depends on the quality of the alibi, the prosecutor, and the policies of the prosecutor’s office. Although CPL 250.20 requires notice to the prosecutor within eight days of the receipt of a prosecutor’s demand for notice of alibi (and this will be discussed further below), what do you do if you know you have an alibi before indictment? The 250.20 requirement does not come into play until there is an indictment. So you have to judge whether you are likely to head off the moving train by presenting the information to the prosecutor, or if you will just be giving away your defense before you have your witnesses prepared to deal with prosecutor witnesses.
In a case I recently handled, I presented the information to the prosecutor within three days of the arraignment of my client in City Court on a felony complaint. Unfortunately, that meant nothing in terms of getting the prosecution to question the quality of the proof in the case.

GRAND JURY?

Although you may choose to request that the alibi witnesses be heard by the grand jury, consider this option carefully. If the prosecutor is unlikely to seek dismissal based on an alibi, will that influence how the grand jury hears the witnesses? Will presentation of the witnesses create inconsistencies for use by the prosecutor later in the case, even if the witnesses are telling the truth?

250.20 AND THE STATUTORY PERIOD

You are required to serve notice after indictment, within eight days of when you receive a request for notice from the prosecution. Take a look at the 710.30 notice that comes attached to indictments – at least in Monroe County- even when there are no statements or ID witnesses. Guess what – there’s a request for notice of alibi! So it is likely that you are going to receive the request, at least on a felony charge, at the arraignment on the felony.

But what if you do not know whether you have an alibi defense at that stage – perhaps you are still investigating, or perhaps you do not learn of it until later in the case? The statute provides a court with discretion to extend the period for alibi notice. I will sometimes advise a court that I am exploring a defense and ask for an extension of time. (But rarely, since it’s rare that I would consider such a defense.)

In People v. Mensche, 276 AD2d 834, the Fourth Department stated:

Although the trial court has the discretion to extend the period in which the defendant must file and serve his notice of alibi, an application for such an extension may be denied where the defendant does not appropriately demonstrate good cause for the delay ( see, People v. Fax, 232 A.D.2d 734, 736, 665 N.Y.S.2d 684, lv. denied 89 N.Y.2d 942, 655 N.Y.S.2d 893, 678 N.E.2d 506; People v. Davis, 193 A.D.2d 885, 886-887, 597 N.Y.S.2d 780, lv. denied 82 N.Y.2d 716, 602 N.Y.S.2d 813, 622 N.E.2d 314). Although the late entry of defense counsel into the case may provide the required reasonable excuse for delay in service of the notice of alibi ( see, People v. Davis, supra ), here, the tardiness of the notice of alibi prejudiced the People's ability to adequately investigate defendant's claims prior to trial. Further, the tardiness of the service of the notice of alibi was not cured when defendant renewed his application to present the alibi witnesses based upon his contention that the People had, in fact, interviewed those witnesses, since County Court properly found the notice facially inadequate because it failed to advise the People of the places at which defendant claimed to be at the time of the commission of the crimes, hampering the People's opportunity to thoroughly investigate defendant's claim. Accordingly, County Court's denial of defendant's application to present alibi witnesses was not an abuse of discretion.


If the prosecutor somehow does not serve you with a request pursuant to CPL 250.20(1), it seems there is no obligation to notify. But I’ve never had a felony case without a request, and I’m not sure of how confident I would be that a trial judge would find the lack of request precluded an obligation on my part. Tricky question.


If you fail to serve the notice within the statutory period, argue to the Court that your client has a right to present a defense as protected by the New York State and United States Constitutions, as well as rights to due process and a fair trial also protected by the Constitutions. You may lose, but there are times that the constitutional rights will trump statutory requirements (though not always). See, e.g. Davis v. Alaska, 415 US 308.

If the prosecution intends to offer rebuttal witnesses, it must serve you with notice (CPL 250.20(2). But they get up to ten days before trial. The statute contains a continuing obligation to provide additional witnesses (CPL 250.20[3]).

If you are serving a 250.20 notice, consider what you are statutorily required to offer in the notice. You must include the place or places the defendant claims to have been at the time, and the names, residential addresses, places of employment and those addresses for all witnesses. Strangely, you do not have to include phone numbers. Or e-mail addresses. Or what your client was doing at the time.

DAWSON

In People v. Dawson 50 NY2d 311 the Court of Appeals found that there was no per se due process prohibition against questioning alibi witnesses as to why they did not come forward earlier. The Court set forth a foundation that could be used by the prosecutor prior to questioning the witnesses, stating, in footnote 4,

In most cases, the District Attorney may lay a “proper foundation” for this type of cross-examination by first demonstrating that the witness was aware of the nature of the charges pending against the defendant, had reason to recognize that he possessed exculpatory information, had a reasonable motive for acting to exonerate the defendant and, finally, was familiar with the means to make such information available to law enforcement authorities.

But the Court also recognized that there are times a witness may choose not to come forward to inform the police of an alibi. One of those times may be if defense counsel advises them not to. So consider whether, if you are aware of the witnesses within a short time of the offense, you want your witnesses coming forward early in the case. If you advise them not to, argue that the prosecutor should not be permitted to question them about not coming forward, citing Dawson. If your witnesses have not come forward early in the case for other reasons, consider whether, under Dawson, those reasons should bar questioning about failure to come forward.

You should be aware that if the witnesses did not come forward early in the case, and the prosecution is permitted to question on it, or the Dawson considerations lead the Court to believe it’s fair to instruct on it, the alibi instruction does contain a paragraph that permits a jury to draw a negative inference.


WITNESSES WHO DO COME FORWARD

Occasionally, witnesses do come forward to the police, and if your client has still been charged, either they were deemed incredible by the police, or the police just didn’t care enough to consider whether what they had to say was the truth.

If the prosecutor gets to ask about failure to promptly come forward, shouldn’t we be able to establish that the witnesses did come forward? If you believe you may face objections about hearsay and bolstering if you try to elicit the prompt disclosure of the alibi to authorities, consider making an argument that due process, as protected by the New York State and United States Constitutions, entitles you to present this evidence. Here’s the argument you may want to include in any moving papers:

The defense will be presenting alibi evidence in Mr. Smith’s case. On (date), the date that Mr. Smith was arrested, Investigator Jones took Mr. Smith’s statement, in which Mr. Smith stated he was in (location) at the time of the crime. He told the investigator who he was with. The investigator failed to follow up on the information.

As this Court is aware, if an alibi witness fails to come forward prior to trial, or early in a case, under some circumstances a jury is read a jury instruction which permits an adverse inference, stating when applicable, “You may, however, consider the witness’ failure to come forward with such information earlier than he/she did only insofar as that failure is inconsistent with his/her alibi testimony at this trial, and casts doubt upon the truthfulness of that testimony.” The instruction cites to People v. Dawson, 50 NY2d 311. In Dawson, the Court recognized that “the failure to speak up at a time when it would be natural to do so might well cast doubt upon the veracity of the witness’s exculpatory statements at trial. In effect, in these situations, the witness’ previous silence is a form of conduct that may be analogized to a ‘prior inconsistent statement’ by the witness. As has been observed by one noted commentator, ‘(a) failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the nonexistence of the fact…There may be explanations, indicating that the person had in truth no belief of that tenor; but the conduct is ‘prima facie’ an inconsistency’ (cite omitted). And, of course, it is well established that an inconsistency in a witness’ prior conduct or statements maybe used as a means of impeaching his testimony at trial (cite omitted).”

It is defendant’s contention that if the prosecution may elicit testimony in alibi cases concerning witnesses who have not come forward, and an adverse inference is permitted when there is a failure of the witness to come forward early in the case (and the foundational requirements of Dawson have been met), then Mr. Smith’s due process rights as protected by the New York State and United States constitutions require that the defense be permitted to introduce testimony that the alibi information was provided on the date of defendant’s arrest by (the witness), and was available to the police from that date on. In other words, if it may be held against a defendant if an alibi witness does not come forward early, then it should be permissible for the defense to introduce testimony that a witness did.

If the prosecutor does not call the witnesses and give the defendant an opportunity to establish that the witnesses were available and that they attempted to “come forward” on the first date they learned of Mr. Smith’s charges –the date of his arrest, then the jury may be left with the questions anticipated by the Court in Dawson - why would his then-girlfriend not come forward? Is there something unbelievable about this account? Whether or not the jury is given an instruction about failure to come forward, the natural inclination to speculate about a failure to come forward when it would have been natural to do so might operate against Mr. Smith.

The right to introduce evidence of a witness coming forward in order to dispel jury speculation is permitted the prosecution under other circumstances. In sex offense cases, a prosecutor is permitted to introduce evidence of prompt complaint. One of the reasons prompt outcry is permitted was noted by the Court of Appeals in People v. McDaniel 81 NY2d 10. The Court stated, “(t)he contemporary rationale for permitting prompt outcry evidence is that some jurors would inevitably doubt the veracity of a victim who failed to promptly complain of a sexual assault, such conduct being “natural” for an “outraged female (cites omitted).” Although recent studies have suggested that it may not be unusual for a rape victim to withhold complaint ( cites omitted ), the admissibility of prompt outcry remains viable because ‘our judicial process cannot remove from every juror all subtle biases or illogical views of the world. The fresh-complaint rule responds to those jurors on their own terms.’ ( cite omitted.)” 81 NY 2d at 16-17.

Thus, both McDaniel and Dawson recognize the potential harm that may arise from jury speculation about a lack of evidence on a topic in which witnesses might be expected to behave differently. Defendant respectfully submits that pursuant to his rights to Due Process as protected by the New York State and United States Constitutions, he is entitled to elicit testimony that the witness provided alibi information to the police on the date Mr. Smith was arrested, and that witness information was made available to the police on that date, but was not investigated.

THE ALIBI INSTRUCTION

The current alibi instruction is found on the Office of Court Administration website (as are the other jury charges generally used by trial judges). http://www.nycourts.gov/cji/

As with all jury instructions, you should read them well before your trial. It seems to me that the current jury instruction does not necessarily comport with the requirement of People v. Victor, 62 NY2d 374, which requires that the trial court unequivocally instruct the jury that the alibi must be disproven beyond a reasonable doubt. (How awesome is that?) But the current instruction does not require that language. At least one person agrees with me that the instruction does not comport with Victor, as that issue was raised (and lost by the defense) before the Court of Appeals this year in People v. Melendez 16 NY3d 869. The Court found that the objection to the instruction was not preserved. The Court also pointed out that the instruction had recently been changed, so it seems this may be a basis to either get the instruction or to preserve an issue for appeal.

ALIBI AND IDENTIFICATION

In an alibi case, you are also challenging the identification of your client. All of the issues that come into play in an ID case are therefore present in the alibi trial. Make sure you are familiar with the current state of the law on identification, as well as issues relating to how ID procedures are conducted, experts on ID, and the expanded identification jury charge contained on the jury charge website. (Consider looking at the recent New Jersey case, State v. Larry Robinson, decided by the New Jersey Supreme Court on August 24th, as well as the New York State Justice Task Force report, “Recommendations for Improving Eyewitness Identifications”. (Consider asking for an ID charge before the witnesses testify, or perhaps a cross-racial ID charge before they testify and at the end of the case.)

Wednesday, August 24, 2011

Court of Appeals to Determine Whether the Defendant or the Attorney Decides to Have the Jury Consider a Lesser Included Offense

As detailed in a post last Fall (see) in People v Colville (79 AD3d 189 [2nd Dept 2010]) the Second Department, without reaching a decision on the issue, engaged in detailed review of the arguments as to whether the decision to submit a lesser included offense is a fundamental one that must be made by the defendant or is a strategic one that can be made by counsel. The Colville court noted that courts have split on this issue, which has not yet been addressed by the New York Court of Appeals. That might be changing as Judge Read has granted the appellant in Colville leave to appeal to the Court if Appeals. Hopefully, this means that New York attorneys might soon obtain an answer to this important and recurring question.

Sunday, August 21, 2011

A Few Thoughts on Sentencing

by
Jill Paperno
Second Assistant Monroe County Public Defender

Plea and sentence negotiations are a part of our practice that requires social skills, strategy, and yes, a knowledge of the sentencing laws. If a client is facing a much higher sentence, maybe the deal on the table is a good one. But if they're not, it may not be. Very often DAs and judges are not familiar with the details of the sentencing laws and might, out of lack of familiarity, misstate the sentence exposure your client faces. We have to know what the possible sentences are in a case before we walk into the conference. But unfortunately, the sentencing statutes are dense and poorly written. But we still have to know them. There are some common errors defense attorneys make that I'd like to address broadly. Remember - it's always important to read the applicable statutes - after all these years all the experienced attorneys I know review them time and time again. And for some of these statutes, the practice commentaries and cases interpreting the statutes are a must-read as well.

Persistent offender statutes
Prosecutors often enjoy raising the specter of persistent felony sentencing if a defendant does not accept a lousy offer.

There are two kinds of persistent felony sentencing statutes - the persistent felony offender statute and the persistent violent felony offender statute. Each one elevates the minimum sentence a defendant may receive, and makes the maximum sentence life. But there are important distinctions between the two.

Persistent violent felony offender

Penal Law Section 70.08 addresses persistent violent felony offender sentencing. The procedure a court must use in determining whether a defendant should be subjected to such sentencing is contained in CPL 400.16. Generally speaking, a person who has been convicted of a violent felony offense or predatory sex offense and has two prior violent felonies for two separate convictions within a ten year period (not counting time spent incarcerated) is a persistent violent felony offender. If a court makes the determination a person is a PVFO then persistent violent felony offender sentencing is mandatory. The second predicate offense must be committed after the first felony offense for a person to be found to be a PVFO. It is NOT required that a person serve two prior state sentences. Each prior violent felony must be within ten years of the current felony, but the ten years is tolled during periods of incarceration. (See, e.g. People v. Ogarra, 757 NYS2d 683.)

So some of the important things to know about PVFO sentencing are that the crimes must be sequential, the sentence is mandatory if applicable, and there is a ten year period within which the two prior violent felonies must have occurred.

Persistent felony offender

Penal Law Section 70.10 addresses persistent felony offender sentencing. Notably, that statute does not require that the two prior felonies occur within a specified period. It does, however, require that the felonies be sequential and that the defendant served a state prison bid on at least two prior felony convictions (by requiring the sentence for each conviction be in excess of one year or death under Penal Law 70.10(1)(b)(i)) (Death? Then isn't persistent a bit of overkill, if you'll pardon the pun?) Persistent felony offender sentencing is within the discretion of the judge, and may be based on factors other than simply prior sentences. Therefore, it has been challenged as unconstitutional (but found constitutional by the NYCA and Second Circuit) and may yet be reviewed by the Supreme Court. The procedure used to determine whether a defendant is a persistent felony offender is contained in CPL Section 400.20.

With any kind of predicate sentence, out of state charges may be considered to be felonies, but you actually have to analyze whether they constitute felonies under New York law, first by looking at the face of the statute, and sometimes by looking at the accusatory. (For example, in some states, breaking into a car may be considered a burglary. Not a felony in New York even if a person did state time in the other state, and even if it was your car. Thus, not a predicate felony for sentencing purposes.) See 70.04(1)(b)(i) and 70.06(1)(b)(i) for the requirements for out of state felonies, as well as cases interpreting that statute.

So some of the most important things to know about PFO sentencing are that the crimes must be sequential, the sentence is NOT mandatory if applicable, there is no statutory period in which the two felonies must have occurred, but each must have resulted in a sentence of state prison (70.10[1][b][i]).

So if the judge or prosecutor is threatening persistent sentencing, make sure you have reviewed your client's record and determined whether it supports that sentence.

Mandatory consecutive

Penal Law Section 70.25 governs when sentences must be concurrent or consecutive. Importantly, although a defendant may be a second felony offender, that does not automatically mean that s/he is required to serve consecutive time. The specific circumstances that require consecutive time are contained within the statute. They include when a person is sentenced as a predicate or persistent felony offender (but do not apply to all predicates/persistents - read the statute) and are on parole (which is described as an "undischarged sentence of imprisonment imposed prior to the date on which the present crime was committed"), defendants charged with escape, bail jumping, VFOs while released on pending felonies, etc.

Prior violent felonies

Keep in mind that certain E felonies charged as attempts to commit D felonies may not be prior violent felonies. See Penal Law Section 70.02(d).

The Government’s Knowing Use of False Testimony And its Failure to Investigate its Witnesses

by
Mark D. Hosken, Supervisory Assistant Federal Public Defender.
Western District of New York

What should happen when the government knowingly introduces a witness’ false testimony in a trial. That question was recently before the Seventh Circuit in United States v. Freeman, No. 09-4043, ___ F.3d ___ (7th Cir. June 17, 2011). There, the panel affirmed the District Court’s order granting the defendant a new trial. While taking place in the Seventh Circuit, the panel’s holding serves as a reminder as to what defense counsel should do if you are faced with the government introducing testimony known to be false.

In Freeman, an individual charged in a multi-defendant drug conspiracy decides to cooperate, and testifies before the grand jury. He told the grand jury that he participated in the drug conspiracy by mixing and bagging up the drugs for one of the other defendants, and explains how the other defendants fit into the operation. He chronicles his meetings with the defendants and the occasions when he witnessed them together. He testifies to a specific time frame (2003) when he saw all of the defendants at a specific location known as the “penthouse.” That testimony was not true. It was undisputed that one of the defendants, Brian Wilbourn, was incarcerated during a three and a half year period (between 2002 and 2005) when the witness claimed he was present while the defendants were bagging drugs at a specific location.

Defense counsel reviews the witness’ grand jury testimony while preparing for trial. He notifies the government that his client could not have been seen with the other defendants as the witness claimed because his client was incarcerated. As the Seventh Circuit panel noted, “the government plowed ahead and still had [its witness] testify. It solicited testimony about Wilbourn’s presence at the penthouse; it even encouraged [its witness]to specifically detail Wilbourn’s participation in [the] operation there. . . . What’s more, when Wilbourn’s attorney began cross-examining [the witness] about the impossibility of Wilbourn being at the penthouse, the prosecutor objected, stating in the presence of the jury, ‘Objection. That’s not true.’” Freeman, 2011 WL 2417091, at *2-3.

Near the end of the trial the government stipulated that that Wilbourn was in prison from April 2002 until September 2005. Twelve days after the government’s witness testified, the stipulation was read to the jury. Notwithstanding the stipulation, the government relied on its witness’ testimony during its closing argument. According to the government, its witness did not lie during his testimony. Rather, the government argued that he was just imprecise or mildly mistaken about the dates on which some events occurred.

The District Court sustained several defense objections, and informed the government that its argument was both inaccurate and an attempt to bolster its witness’ testimony. The District Court later determined that this constituted prosecutorial misconduct. The defendants were ultimately found guilty of the conspiracy charge. However, the defendants moved for a new trial on the ground that the false testimony of the government’s witness violated their due process rights. The District Court agreed.

In Freeman, 2011 WL 2417091, a 7th Circuit panel affirmed the district court’s grant of a new trial. Relying on the Supreme Court’s holdings in Napue v. Illinois, 360 U.S. 264 (1959), United States v. Bagley, 473 U.S. 667 (1984), and United States v. Agurs, 427 U.S. 97 (1976), the panel upheld the district court’s determination that there was a reasonable likelihood that the false testimony could have affected the jury’s judgment and that if not for the improprieties, the defendants would have been acquitted.

More importantly, the panel extended the government’s duty beyond merely determining the accuracy of its claims. Now, the government must not forgo its duty to investigate its witnesses.
The government’s duty to assure the accuracy of its representations has been well stated many times before. . . . This means that when the government learns that part of its case may be inaccurate, it must investigate. . . . It cannot simply ignore evidence that its witness is lying. . . . Here, the government abdicated its responsibility by failing to investigate and determine whether (the defendant) could have been (where the witness) claimed he was.

2011 WL 2417091 *5. (internal cites omitted).

In United States v. Agurs, 427 U.S. 97 (1976), the Supreme Court explained that the rule of Brady v. Maryland, 373 U.S. 83 (1963), applied in different situations. The first being those instances when the prosecution knew or should have known about perjured testimony. These situations are fundamentally unfair. Convictions obtained therein must be set aside. This requires a finding that there existed a reasonable likelihood that the false testimony could have affected the jury’s judgment. Agurs, 427 U.S. at 103.

The Second Circuit has applied the Agurs analysis to set aside convictions when the government’s witnesses have presented perjured testimony. See, United States v. Mele, 462 F.2d 918 (2d Cir. 1972) (the government’s deceit including untruthful testimony, deliberate excisions from reports, preparation of false reports and repeated misrepresentations required a new trial); Perkins v. LeFevre, 691 F.2d 616 (2d Cir. 1982) (the prosecution’s failure to provide the witness’ rap sheet to the defense after the witness denied any convictions which were recorded on his criminal history resulted in the granting of a writ of habeas corpus.); United States v. Wallach, 935 F.2d 445 (2d Cir. 1991) (the perjury of the government’s witness required a reversal of the convictions when the government in redirect and in closing argument made much of the witness’ motive for telling the truth.); United States v. Vozzella, 124 F.3d 389 (2d Cir. 1997) (the government’s use of business record evidence that it knew contained fictitious entries, and according to its author were false in their entirety, required reversal when the government conducted no further inquiry into the veracity of the records.); Jenkins v. Artuz, 294 F.3d 284 (2d Cir. 2002) (the prosecutor’s failure to correct the record in spite of the witness’ false testimony and her argument in summation relying on that false testimony was sufficient basis to grant a writ of habeas corpus); and Drake v. Portuondo, 553 F.3d 230 (2d Cir. 2009) (the prosecutor knowingly elicited false statements from a witness and did not correct the record when the witness testified falsely about conversations he had with the prosecutor - this was sufficient to grant a writ of habeas corpus.).

The importance of the Freeman decision is the imposition of a duty on the prosecutor to investigate his/her witnesses. The government’s counsel may no longer contend “I didn’t know,” or “the witness was simply mistaken,” or “the defense attorney had a sufficient opportunity to cross examine the witness.” Defense counsel should put the government on notice of a witness’ perjury, record proper objections, and challenge the government’s failure to correct the record. Building on the Supreme Court decisions and adding the direction in Freeman, counsel should argue the government’s failure to fully investigate its witnesses is a sufficient basis to set aside a conviction, obtain a new trial or otherwise secure a dismissal in the appropriate criminal prosecution.

Thursday, August 11, 2011

Some Thoughts on Felony Sentencing in New York

Jill Paperno
Second Assistant Monroe County Public Defender

Plea and sentence negotiations are a part of our practice that requires social skills, strategy, and yes, a knowledge of the sentencing laws. If a client is facing a much higher sentence, maybe the deal on the table is a good one. But if they're not, it may not be. Very often DAs and judges are not familiar with the details of the sentencing laws and might, out of lack of familiarity, misstate the sentence exposure your client faces. We have to know what the possible sentences are in a case before we walk into the conference. But unfortunately, the sentencing statutes are dense and poorly written. But we still have to know them. There are some common errors defense attorneys make that I'd like to address broadly. Remember - it's always important to read the applicable statutes - after all these years all the experienced attorneys I know review them time and time again. And for some of these statutes, the practice commentaries and cases interpreting the statutes are a must-read as well.

Persistent offender statutes
Prosecutors often enjoy raising the specter of persistent felony sentencing if a defendant does not accept a lousy offer.

There are two kinds of persistent felony sentencing statutes - the persistent felony offender statute and the persistent violent felony offender statute. Each one elevates the minimum sentence a defendant may receive, and makes the maximum sentence life. But there are important distinctions between the two.

Persistent violent felony offender

Penal Law Section 70.08 addresses persistent violent felony offender sentencing. The procedure a court must use in determining whether a defendant should be subjected to such sentencing is contained in CPL 400.16. Generally speaking, a person who has been convicted of a violent felony offense or predatory sex offense and has two prior violent felonies for two separate convictions within a ten year period (not counting time spent incarcerated) is a persistent violent felony offender. If a court makes the determination a person is a PVFO then persistent violent felony offender sentencing is mandatory. The second predicate offense must be committed after the first felony offense for a person to be found to be a PVFO. It is NOT required that a person serve two prior state sentences. Each prior violent felony must be within ten years of the current felony, but the ten years is tolled during periods of incarceration. (See, e.g. People v. Ogarra, 757 NYS2d 683.)

So some of the important things to know about PVFO sentencing are that the crimes must be sequential, the sentence is mandatory if applicable, and there is a ten year period within which the two prior violent felonies must have occurred.

Persistent felony offender

Penal Law Section 70.10 addresses persistent felony offender sentencing. Notably, that statute does not require that the two prior felonies occur within a specified period. It does, however, require that the felonies be sequential and that the defendant served a state prison bid on at least two prior felony convictions (by requiring the sentence for each conviction be in excess of one year or death under Penal Law 70.10(1)(b)(i)) (Death? Then isn't persistent a bit of overkill, if you'll pardon the pun?) Persistent felony offender sentencing is within the discretion of the judge, and may be based on factors other than simply prior sentences. Therefore, it has been challenged as unconstitutional (but found constitutional by the NYCA and Second Circuit) and may yet be reviewed by the Supreme Court (the cert. petition in People v Battles is pending) The procedure used to determine whether a defendant is a persistent felony offender is contained in CPL Section 400.20.

With any kind of predicate sentence, out of state charges may be considered to be felonies, but you actually have to analyze whether they constitute felonies under New York law, first by looking at the face of the statute, and sometimes by looking at the accusatory. (For example, in some states, breaking into a car may be considered a burglary. Not a felony in New York even if a person did state time in the other state, and even if it was your car. Thus, not a predicate felony for sentencing purposes.) See 70.04(1)(b)(i) and 70.06(1)(b)(i) for the requirements for out of state felonies, as well as cases interpreting that statute.

So some of the most important things to know about PFO sentencing are that the crimes must be sequential, the sentence is NOT mandatory if applicable, there is no statutory period in which the two felonies must have occurred, but each must have resulted in a sentence of state prison (70.10[1][b][i]).

So if the judge or prosecutor is threatening persistent sentencing, make sure you have reviewed your client's record and determined whether it supports that sentence.

Mandatory consecutive

Penal Law Section 70.25 governs when sentences must be concurrent or consecutive. Importantly, although a defendant may be a second felony offender, that does not automatically mean that s/he is required to serve consecutive time. The specific circumstances that require consecutive time are contained within the statute. They include when a person is sentenced as a predicate or persistent felony offender (but do not apply to all predicates/persistents - read the statute) and are on parole (which is described as an "undischarged sentence of imprisonment imposed prior to the date on which the present crime was committed"), defendants charged with escape, bail jumping, VFOs while released on pending felonies, etc.

Prior violent felonies

Keep in mind that certain E felonies charged as attempts to commit D felonies may not be prior violent felonies. See Penal Law Section 70.02(d).