The Court of Appeals has repeatedly held that a prospective juror with actual bias, such as an opinion that the defendant is guilty, is qualified to serve on a jury as long as gives an unequivocal assurance she can be fair and impartial (People v Nicholas, 98 NY2d 749, 751 [2002]; People v Arnold, 96 NY2d 358, 362 [2001]; People v Johnson, 94 NY2d 600, 614 [2000]).

The rule is different with respect to a prospective juror who is said to have an “implied bias” based on a preexisting relationship with a potential witness that “is likely to preclude her from rendering an impartial verdict. ” Unlike actual bias, implied bias, requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect her ability to be fair and impartial (see e.g. People v Branch, 46 NY2d 645, 650 [1979]; People v Rentz, 67 NY2d 829, 831 [1986]). And such bias, whether acknowledged by the declarant or not, cannot be cured with an expurgatory oath.

In People v Furey, __NY3d__, 2011 NY Slip Op 09000 (12/15/11) , the Court of Appeals again applied this rule and reversed a conviction where a challenge for cause was denied with respect to a prospective juror with implied bias. In Furey, after noting that not all relationships qualify for this implied bias rule and that the “frequency of contact and nature of the parties' relationship are to be considered in determining whether disqualification is necessary” the Court held that it was an abuse of discretion to deny a challenge for cause where the prospective juror’s husband was a police captain who has assigned the detective who investigated the case and

she knew eight of the witnesses (seven police officers and an assistant district attorney) who were to testify at trial — more than half of the People's potential witnesses — and had frequent professional and social relationships with at least two of the police officers. Although [the prospective juror] offered unequivocal assurances of impartiality, those declarations were ineffective in a case like this because there was a considerable risk that she could unwittingly give undue credence to the witnesses she knew and her service would give rise to the perception that defendant did not receive a fair trial.

The Court of Appeals has repeatedly held that a prospective juror with actual bias, such as an opinion that the defendant is guilty, is qualified to serve on a jury as long as gives an unequivocal assurance she can be fair and impartial (People v Nicholas, 98 NY2d 749, 751 [2002]; People v Arnold, 96 NY2d 358, 362 [2001]; People v Johnson, 94 NY2d 600, 614 [2000]).

The rule is different with respect to a prospective juror who is said to have an “implied bias” based on a preexisting relationship with a potential witness that “is likely to preclude her from rendering an impartial verdict. ” Unlike actual bias, implied bias, requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect her ability to be fair and impartial (see e.g. People v Branch, 46 NY2d 645, 650 [1979]; People v Rentz, 67 NY2d 829, 831 [1986]). And such bias, whether acknowledged by the declarant or not, cannot be cured with an expurgatory oath.

In People v Furey, __NY3d__, 2011 NY Slip Op 09000 (12/15/11) , the Court of Appeals again applied this rule and reversed a conviction where a challenge for cause was denied with respect to a prospective juror with implied bias. In Furey, after noting that not all relationships qualify for this implied bias rule and that the “frequency of contact and nature of the parties' relationship are to be considered in determining whether disqualification is necessary” the Court held that it was an abuse of discretion to deny a challenge for cause where the prospective juror’s husband was a police captain who has assigned the detective who investigated the case and

she knew eight of the witnesses (seven police officers and an assistant district attorney) who were to testify at trial — more than half of the People's potential witnesses — and had frequent professional and social relationships with at least two of the police officers. Although [the prospective juror] offered unequivocal assurances of impartiality, those declarations were ineffective in a case like this because there was a considerable risk that she could unwittingly give undue credence to the witnesses she knew and her service would give rise to the perception that defendant did not receive a fair trial.

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.

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.

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.

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.

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]).