Tuesday, May 22, 2007

AD2: Decisions for May 15, 2007

Post-release supervision not imposed at sentencing is not part of sentence

People v Howell, 2007 NY Slip Op 04318 [available here]

People v Royster, 2007 NY Slip Op 04325 [available here]

Perpetuating a split between the Appellate Division Departments, the Second Department refuses to vacate the defendant's guilty plea based on an illegal sentence. Although a period of postrelease supervision was mandatory given the crimes defendant pleaded guilty to, the lower court failed to include any period of postrelease supervision at sentencing. In the Fourth Department, this is grounds for reversal, whether the defendant raises the issue or not. (See People v Davis, 2007 NY Slip Op 00929.) In the Second Department, the defendant is not entitled to vacatur of his conviction. Here's the language from Howell:

Neither the transcript of the sentencing proceeding nor the Supreme Court's order of commitment contains any reference to the imposition of a period of post-release supervision. Therefore, the sentence actually imposed by the court never included, and does not now include, any period of post-release supervision.

Under these circumstances, the defendant received precisely the sentence for which he bargained, and thus he failed to articulate any reason for vacating his judgment of conviction, upon his plea of guilty, or modifying his sentence in any way.

(Howell, 2007 NY Slip Op 04318.)

It will be interesting to see if the Court of Appeals grants leave to resolve this split.

Evidence insufficient to establish defendant's signature on false affidavit

People v Feola, 2007 NY Slip Op 04310 [available here]

People v Hepp, 2007 NY Slip Op 04317 [available here]

The defendant in Feola was convicted of "making a punishable false statement," i.e. signing an affidavit or other such document that contains false statements. (Feola, 2007 NY Slip Op 04310.) At trial, the only evidence that defendant actually signed the affidavit at issue was the testimony of an Assistant District Attorney, who "sent the unsigned affidavit via facsimile to the police precinct to the attention of the codefendant . . . after a telephone conversation with the defendant . . . [a] signed affidavit purportedly bearing the defendant's signature was sent back to the ADA by facsimile under a cover sheet bearing the defendant's name." (Id. at __.) That was it. Given that the "People inexplicably failed to proffer any direct evidence that the affidavit bore the actual signature of the defendant", the Second Department held the defendant's conviction was not supported by legally sufficient evidence.

Defense counsel taking adverse position to client on 330.30 motion = ineffective assistance of counsel

People v Gruttadauria, 2007 NY Slip Op 04316 [available here]

After his conviction but before sentencing, the defendant "moved pro se to set aside the verdict pursuant to CPL 330.30, alleging . . . ineffective assistance of counsel." (Gruttadauria, 2007 NY Slip Op 04316.) Defense counsel "submitted an affidavit in opposition to the motion" to "explain[...] his performance on the record with references to matter dehors the record." (Id. at __.) While not expressing an opinion on the merits of the defendant's pro se 330.30, the Second Department held that the defendant was denied effective assistance of counsel on the 330.30 motion itself, and remanded for a 330.30 hearing with new counsel. "The defense counsel, by taking a position adverse to his client, deprived the defendant of effective assistance of counsel with respect to the motion to set aside the verdict pursuant to CPL 330.30." (Id. at __.)