In a reminder that there are real risks to appealing when a defendant received a sentence less than the law requires, the Fourth Department in People v Allen, 2008 NY Slip Op 10267 [12/21/08] held that the sentence was unlawfully short and remitted the case for resentencing. Of note, this issue was not raised by the parties:

We further conclude, however, that the sentence imposed on the count of criminal possession of a controlled substance in the fourth degree is illegal and cannot stand. We note that, because the sentence is illegal, we reach this issue despite defendant's failure to raise it either at the time of sentencing or on appeal (see People v Adams, 45 AD3d 1346; People v Martinez, 213 AD2d 1072). Pursuant to Penal Law § 70.70 (3) (b), the sentence imposed for a second felony drug offender convicted of, inter alia, a class C felony offense must include a period of not less than 1½ or more than 3 years of postrelease supervision. Although criminal possession of a controlled substance in the fourth degree is a class C felony and defendant was a second felony drug offender, County Court failed to include a period of postrelease supervision in sentencing defendant on that count. We therefore modify the judgment by vacating the sentence imposed for criminal possession of a controlled substance in the fourth degree, and we remit the matter to County Court for resentencing on count three of the indictment (see People v Sparber, 10 NY3d 457, 469). Inasmuch as the plea agreement provided in relevant part that [*2]defendant would be sentenced to a three-year period of postrelease supervision, defendant need not be afforded the opportunity to withdraw her plea of guilty prior to resentencing (cf. People v Waggoner, 53 AD3d 1143).

In a reminder that there are real risks to appealing when a defendant received a sentence less than the law requires, the Fourth Department in People v Allen, 2008 NY Slip Op 10267 [12/21/08] held that the sentence was unlawfully short and remitted the case for resentencing. Of note, this issue was not raised by the parties:

We further conclude, however, that the sentence imposed on the count of criminal possession of a controlled substance in the fourth degree is illegal and cannot stand. We note that, because the sentence is illegal, we reach this issue despite defendant's failure to raise it either at the time of sentencing or on appeal (see People v Adams, 45 AD3d 1346; People v Martinez, 213 AD2d 1072). Pursuant to Penal Law § 70.70 (3) (b), the sentence imposed for a second felony drug offender convicted of, inter alia, a class C felony offense must include a period of not less than 1½ or more than 3 years of postrelease supervision. Although criminal possession of a controlled substance in the fourth degree is a class C felony and defendant was a second felony drug offender, County Court failed to include a period of postrelease supervision in sentencing defendant on that count. We therefore modify the judgment by vacating the sentence imposed for criminal possession of a controlled substance in the fourth degree, and we remit the matter to County Court for resentencing on count three of the indictment (see People v Sparber, 10 NY3d 457, 469). Inasmuch as the plea agreement provided in relevant part that [*2]defendant would be sentenced to a three-year period of postrelease supervision, defendant need not be afforded the opportunity to withdraw her plea of guilty prior to resentencing (cf. People v Waggoner, 53 AD3d 1143).

In 2001, the New York Court of Appeals, in People v Hines, 97 NY2d 56 (2001), held that where a motion for a trial order of dismissal at the end of the People's case is denied and the defendant then presents proof, waives the claim that the proof presented by the People was insufficient, and instead a trial order of dismissal motion must be made and based on all of the proof presented, including that presented by the defendant. The Court held that by choosing to put on evidence, defendant waived his right to have only the People's evidence examined for legal sufficiency, and could not avoid the adverse evidence elicited during the defendant's case on his subsequent motion. The Court explained that "we have held that 'a defendant who does not rest after the court fails to grant a motion to dismiss at the close of the People's case, proceeds with the risk that he will inadvertently supply a deficiency in the people's case.' Thus, a defendant who presents evidence after a court has declined to grant a trial motion to dismiss made at the close of the People's case waives subsequent review of that determination. Consistent with the overall truth-seeking function of a jury trial, the rationale underlying this rule is that a reviewing court should not disturb a guilty verdict by reversing a judgment based on insufficient evidence without taking into account all of the evidence the jury considered in reaching that verdict, including proof adduced by the defense." People v Hines, 97 NY2d at 61.

Subsequently, as discussed in detail here, the Court of Appeals, relying on Hines has held in People v Lane, 7 NY3d 888, that a defendant's legal sufficiency arguments are not properly preserved for appellate review unless a motion for a trial order of dismissal is renewed at the close of all proof:

After defendant presented his own evidence, he did not renew his earlier argument. Consequently, whether the trial evidence was sufficient to support each element of the crime is not a question of law that this Court may review

.
Thus, the law in New York is clear. In order to preserve for review a claim of legally insufficient proof, counsel must not only make a specific T.O.D. motion at the conclusion of the People's case, but must renew that motion after presenting any proof, even proof irrelevant to the insufficiency.

So what if counsel, recognizing that the proof was insufficient, makes a T.O.D. motion at the close of the People's proof specifying the insufficiency, but fails to renew the motion after the presenting some proof. Is such an error, which results in a client's conviction upon legally insufficient proof being beyond review as a matter of law, ineffective assistance of counsel? Surely there can be no strategic reason for such error. And the catastrophic result of the error is the difference between a conviction and dismissal of the charge. The circumstances when a single error can result is a finding of ineffective assistance of counsel was considered by the Court of Appeals in People v Turner, 5 NY3d 476 (discussed here).

Very rarely, a single lapse by otherwise competent counsel compels the conclusion that a defendant was deprived of his constitutional right to effective legal representation. This is such a rare case, in which both defendant's trial and appellate lawyers failed to perceive that a statute of limitations defense would have prevented their client's manslaughter conviction....[T]he failure to raise a defense as clear-cut and completely dispositive as a statute of limitations . . ., in the absence of a reasonable explanation for it, is hard to reconcile with a defendant's constitutional right to the effective assistance of counsel.

(People v Turner, 5 NY3d 476, 481).

So is the failure to renew a legally correct T.O.D. motion the type of dispositive single error which constitutes ineffective assistance of counsel? The Fourth Department, has at least twice, rejected such claims.
As previously discussed (here), in September, in People v Wright (2007 NYSlipOp 07167) (here), in which the defendant contended that the evidence was legally insufficient to support the crime of depraved indifference murder because the People failed to establish the uncommon brutality and utter wantonness required for that crime, the Court held that

By failing to renew his motion to dismiss after presenting evidence, defendant failed to preserve that contention for our review (see People v Lane, 7 NY3d 888, 889; see also People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678).

In People v Agee, 2008 NY Slip Op 10387 [4th Dept 12/31/08] the Court rejected a claim that the failure to renew a T.O.D. motion based on the proof being legally insufficient to establish depraved assault was ineffective assistance of counsel, explaining that

viewing defense counsel's representation as a whole, we conclude that defendant received effective assistance of counsel (see People v Stultz, 2 NY3d 277, rearg denied 3 NY3d 702; People v Baldi, 54 NY2d 137, 147).

The Court of Appeals holding in Turner is neither discussed nor even cited.
Thus, Mr.Agee will serve a long prison sentence for a crime not proved. Wonder what he thinks of his trial counsel.

In 2001, the New York Court of Appeals, in People v Hines, 97 NY2d 56 (2001), held that where a motion for a trial order of dismissal at the end of the People's case is denied and the defendant then presents proof, waives the claim that the proof presented by the People was insufficient, and instead a trial order of dismissal motion must be made and based on all of the proof presented, including that presented by the defendant. The Court held that by choosing to put on evidence, defendant waived his right to have only the People's evidence examined for legal sufficiency, and could not avoid the adverse evidence elicited during the defendant's case on his subsequent motion. The Court explained that "we have held that 'a defendant who does not rest after the court fails to grant a motion to dismiss at the close of the People's case, proceeds with the risk that he will inadvertently supply a deficiency in the people's case.' Thus, a defendant who presents evidence after a court has declined to grant a trial motion to dismiss made at the close of the People's case waives subsequent review of that determination. Consistent with the overall truth-seeking function of a jury trial, the rationale underlying this rule is that a reviewing court should not disturb a guilty verdict by reversing a judgment based on insufficient evidence without taking into account all of the evidence the jury considered in reaching that verdict, including proof adduced by the defense." People v Hines, 97 NY2d at 61.

Subsequently, as discussed in detail here, the Court of Appeals, relying on Hines has held in People v Lane, 7 NY3d 888, that a defendant's legal sufficiency arguments are not properly preserved for appellate review unless a motion for a trial order of dismissal is renewed at the close of all proof:

After defendant presented his own evidence, he did not renew his earlier argument. Consequently, whether the trial evidence was sufficient to support each element of the crime is not a question of law that this Court may review

.
Thus, the law in New York is clear. In order to preserve for review a claim of legally insufficient proof, counsel must not only make a specific T.O.D. motion at the conclusion of the People's case, but must renew that motion after presenting any proof, even proof irrelevant to the insufficiency.

So what if counsel, recognizing that the proof was insufficient, makes a T.O.D. motion at the close of the People's proof specifying the insufficiency, but fails to renew the motion after the presenting some proof. Is such an error, which results in a client's conviction upon legally insufficient proof being beyond review as a matter of law, ineffective assistance of counsel? Surely there can be no strategic reason for such error. And the catastrophic result of the error is the difference between a conviction and dismissal of the charge. The circumstances when a single error can result is a finding of ineffective assistance of counsel was considered by the Court of Appeals in People v Turner, 5 NY3d 476 (discussed here).

Very rarely, a single lapse by otherwise competent counsel compels the conclusion that a defendant was deprived of his constitutional right to effective legal representation. This is such a rare case, in which both defendant's trial and appellate lawyers failed to perceive that a statute of limitations defense would have prevented their client's manslaughter conviction....[T]he failure to raise a defense as clear-cut and completely dispositive as a statute of limitations . . ., in the absence of a reasonable explanation for it, is hard to reconcile with a defendant's constitutional right to the effective assistance of counsel.

(People v Turner, 5 NY3d 476, 481).

So is the failure to renew a legally correct T.O.D. motion the type of dispositive single error which constitutes ineffective assistance of counsel? The Fourth Department, has at least twice, rejected such claims.
As previously discussed (here), in September, in People v Wright (2007 NYSlipOp 07167) (here), in which the defendant contended that the evidence was legally insufficient to support the crime of depraved indifference murder because the People failed to establish the uncommon brutality and utter wantonness required for that crime, the Court held that

By failing to renew his motion to dismiss after presenting evidence, defendant failed to preserve that contention for our review (see People v Lane, 7 NY3d 888, 889; see also People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678).

In People v Agee, 2008 NY Slip Op 10387 [4th Dept 12/31/08] the Court rejected a claim that the failure to renew a T.O.D. motion based on the proof being legally insufficient to establish depraved assault was ineffective assistance of counsel, explaining that

viewing defense counsel's representation as a whole, we conclude that defendant received effective assistance of counsel (see People v Stultz, 2 NY3d 277, rearg denied 3 NY3d 702; People v Baldi, 54 NY2d 137, 147).

The Court of Appeals holding in Turner is neither discussed nor even cited.
Thus, Mr.Agee will serve a long prison sentence for a crime not proved. Wonder what he thinks of his trial counsel.

Sometimes there are collateral consequences to restrictive rulings of a local court judge at a preliminary hearing limiting the scope of cross-examination of prosecution witnesses. In People v Harvey, 2008 NY Slip Op 10329 [4th Dept 12/31/08] the Fourth Department reversed defendant's convictions for criminal possession of a weapon in the second degree (Penal Law § 265.03 [former (2)]) and reckless endangerment in the first degree (§ 120.25) because

the court erred in admitting in evidence the preliminary hearing testimony of the victim. Although the People demonstrated due diligence in attempting to locate the victim for trial (see People v Arroyo, 54 NY2d 567, 571, cert denied 456 US 979), the court unduly restricted defense counsel's cross-examination of the victim at the preliminary hearing, and thus the admission in evidence of the preliminary hearing testimony deprived defendant of his right of confrontation (see People v Simmons, 36 NY2d 126, 130-131).

Sometimes there are collateral consequences to restrictive rulings of a local court judge at a preliminary hearing limiting the scope of cross-examination of prosecution witnesses. In People v Harvey, 2008 NY Slip Op 10329 [4th Dept 12/31/08] the Fourth Department reversed defendant's convictions for criminal possession of a weapon in the second degree (Penal Law § 265.03 [former (2)]) and reckless endangerment in the first degree (§ 120.25) because

the court erred in admitting in evidence the preliminary hearing testimony of the victim. Although the People demonstrated due diligence in attempting to locate the victim for trial (see People v Arroyo, 54 NY2d 567, 571, cert denied 456 US 979), the court unduly restricted defense counsel's cross-examination of the victim at the preliminary hearing, and thus the admission in evidence of the preliminary hearing testimony deprived defendant of his right of confrontation (see People v Simmons, 36 NY2d 126, 130-131).

This week, in People v Bennett (2008 NY Slip Op 09811 [2d Dept 12/09/08]), the Second Department overturned a rape conviction when the second-grade victim could only give a nine-month window for the date of the incident. The Court explained that while

a per se (nine-month) bar does not apply, a significantly lengthy period is a factor to be considered, with "proportionally heightened scrutiny" given to whether the People's inability to provide more precise times can be justified as against the important notice rights of the defendant (People v Sedlock, 8 NY3d at 539; People v Watt, 81 NY2d 772, 775).

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

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