Insufficient Inquiry for a Valid Waiver of Appeal

People v Vega 2008 NY Slip Op 02250 (3/14/2008)

The Fourth Department holds that a single inquiry to a defendant which fails to make clear that the loss of the right to appeal is not an automatic consequence of a guilty plea is insufficient to demonstrate a knowing and intelligent waiver of appeal:

we agree with defendant that his waiver of the right to appeal is invalid (see generally People v Lopez, 6 NY3d 248, 256). Supreme Court did not ask defendant during the plea colloquy whether he agreed to waive his right to appeal, and the prosecutor's single inquiry of defendant whether he understood that he was waiving his right to appeal is insufficient to "establish that [he] understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" (id.; see People v Phillips, 28 AD3d 939, lv denied 7 NY3d 761; People v Brown, 296 AD2d 860, lv denied 98 NY2d 767).

Unreasonable to Respond to Attack

People v Mcclellan 2008 NY Slip Op 02271 (3/14/2008)

In holding that the proof was sufficient for a jury to find justification disproved, the Court held that even if a 17 year old African-American, who was walking with four African-Americans companions in a predominately Caucasian neighborhood, when five Caucasian men yelled racial epithets and initiated a physical confrontation,

actually believed that deadly physical force was necessary," it nevertheless supports a finding that defendant's belief was not reasonable under the circumstances (People v Wesley, 76 NY2d 555, 559; see People v Butera, 23 AD3d 1066, 1068, lv denied 6 NY3d 774, 832).

Failure to Raise Dispositive Statute of Limitations Defense Will Not Always Result in Finding of Ineffective Assistance of Counsel

In People v Wise 2008 NY Slip Op 02264 (3/14/2008), the Fourth Department has held that under the circumstances of the case (in which the People on appeal conceded that a conviction for one of the counts was time barred and the Appellate Division dismissed the count) the failure of counsel to raise a dispositive statute of limitations defense did not deny the defendant his right to effective assistance of counsel.

Defendant further contends that defense counsel should have sought dismissal of the count charging him with endangering the welfare of a child because that count was time-barred, and that as a result he was denied his right to effective assistance of counsel. As the People correctly concede, that count is governed by the two-year statute of limitations (see CPL 30.10 [2] [c]), and it should have been dismissed as time-barred (see People v Rogner, 265 AD2d 688). We therefore modify the judgment accordingly.

We further conclude under the circumstances of this case, however, that defendant was not thereby denied his right to effective assistance of counsel. "[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). Nevertheless, we conclude that defense counsel's single omission did not "so seriously compromise[] [the] defendant's right to a fair trial [as to] qualify as ineffective representation" (see People v Hobot, 84 NY2d 1021, 1022; see generally People v Flores, 84 NY2d 184, 187-189). Contrary to defendant's contention, the incidents underlying the count of endangering the welfare of a child, although subject to a Ventimiglia hearing, would nevertheless have been admissible as probative of the sexual gratification element of the sexual abuse charges (see generally People v Ortiz, 16 AD3d 831, 833, lv denied 4 NY3d 889; People v Graves, 8 AD3d 1045, lv denied 3 NY3d 674; People v Evans, 259 AD2d 629, lv denied 93 NY2d 924), and we note that the count at issue is now being dismissed as time-barred.

Useful Molineux Holding

People v Pittman 2008 NY Slip Op 02236 (3/14/2008)

In a case involving an attempted murder of a police officer, a divided Court issued an excellent Molineux holding. First the Court held that evidence of a prior possession of a weapon was not “‘sufficiently unique to be probative on the issue of identity’ (People v Beam, 57 NY2d 241, 252).” Next it held that the evidence was not probative on the issue of motive “inasmuch as there was no evidence from which the jury could infer that the 1998 incident provided the motive underlying the instant offenses (see generally People v Namer, 309 NY 458, 462). “

Then the Court held that

evidence of the 1998 incident should have been precluded insofar as it was used to prove intent because, assuming that the People established that defendant fired at the officer, "intent may be easily inferred from the commission of the act itself" (People v Alvino, 71 NY2d 233, 242; see also People v McKinney, 24 NY2d 180, 184-185).

Finally, and perhaps most importantly, the Court held that even

assuming, arguendo, that evidence of the 1998 incident is probative of some issue other than defendant's criminal propensity, we conclude that its potential for prejudice outweighed its probative value(see generally People v Hudy, 73 NY2d 40, 55; People v Santarelli, 49 NY2d 241, 250, rearg denied 49 NY2d 918). Indeed, we conclude that the evidence of the 1998 incident was, at best, "of slight value when compared to the possible prejudice to" defendant (People v Allweiss, 48 NY2d 40, 47), and the error in the admission of that evidence cannot be deemed harmless (see People v Kocyla, 167 AD2d 938, 939; see generally People v Crimmins, 36 NY2d 230, 241-242).

Justice Smith dissented. In part, she would have held that the facts of the earlier incident and the one at trial showed a sufficiently unique modus operandi that rendered this evidence probative on the issue of identity, and the identity of the perpetrator was at issue.

Requirements and Limits on Ordering of Restitution

Two helpful decisions on restitition.

People v Maliszewski 2008 NY Slip Op 0223 (3/14/2008) is one decision with two good holdings regarding the imposition of restitution.

First, the Court held that

We agree with defendant that the court erred in enhancing his sentence of incarceration based upon his failure to pay restitution arising from previous convictions. "Restitution may be based only on the offense for which a defendant was convicted, as well as any other offense that is part of the same criminal transaction or that is contained in any other accusatory instrument disposed of by any plea of guilty' " (People v Visser, 256 AD2d 1106, 1107, quoting Penal Law § 60.27 [4] [a]; see People v Casiano, 8 AD3d 761, 762-763; People v Diola, 299 AD2d 962, lv denied 99 NY2d 581).

Then, the Court held

In addition, defendant did not admit the amount of the burglary victim's loss, and the record is insufficient to support the court's finding with respect to the amount of restitution for that loss. The court therefore erred in failing to conduct a hearing on the issue of restitution for the burglary victim's loss, pursuant to CPL 400.30 (see People v Dibble [appeal No. 2], 277 AD2d 969, 970)

.
In People v Braswell 2008 NY Slip Op 02255 (3/14/2008) the Court agreed with an unpreserved claim that that the court erred in imposing restitution inasmuch as it was not part of the plea agreement and, pursuant to its interest of justice discretion, concluded that the sentencing court should have afforded defendant the opportunity to withdraw his plea before ordering him to pay restitution.

Strict Construction of Requirement of Notice of Right To Testify at Grand Jury

People v Pattison 2008 NY Slip Op 02230 (3/14/2008)

Defendant further contends that County Court erred in denying his motion to dismiss the indictment based on the violation of his right to testify before the grand jury without conducting a hearing. We agree with defendant that a hearing is required. It is undisputed that, pursuant to CPL 190.50 (5) (a), defendant's attorney served the People with written notice of defendant's intention to testify before the grand jury when the matter was presented. The record contains correspondence between the prosecutor and defense counsel concerning the possibility of a plea agreement prior to presentment. The prosecutor stated therein that the "grand jury will convene in the middle of January, 2003" and, in a subsequent letter, the prosecutor stated that the "grand jury will proceed as scheduled." We conclude that the court erred in determining that, based on those letters, defendant was provided with adequate notice of the time and place of the grand jury proceeding, sufficient to satisfy the statutory notice requirements. CPL 190.50 (5) (b) expressly provides that, "[u]pon service upon the district attorney of a notice requesting appearance before a grand jury . . ., the district attorney must . . . serve upon the applicant . . . a notice that he [or she] will be heard by the grand jury at a given time and place" (emphasis supplied). Contrary to the court's determination, those letters do not establish the People's compliance with the statute. Although the prosecutor may have provided oral notice of that information, there is no evidence in the record that the prosecutor in fact did so. We therefore hold the case, reserve decision and [*2]remit the matter to County Court for a reconstruction hearing to determine whether the People complied with CPL 190.50 (5) (b).

A Reminder of the Risks in Appeals from Guilty Pleas

Two recent decisions from the Fourth Department remind us of the potential dangers in appeals form guilty pleas.


People v Hamilton 2008 NY Slip Op 02234 (4th Dept 3/14/2008)

The Fourth Department considered an unpreserved claim regarding an improperly imposed predicate sentence.

After some good language worth noting and citing in future briefs

that defendant's waiver of the right to appeal is invalid inasmuch as the court's minimal inquiry was "insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice' " (People v Brown, 296 AD2d 860, lv denied 98 NY2d 767)

the Court considered unpreserved claims that the defendant was improperly sentenced as a second violent felon. The good news is that

As the People correctly concede, defendant's contention has merit. The sentences for the prior convictions were beyond the 10-year time limit, and the court failed to make a finding that the tolling provision applied (see Penal Law § 70.04 [1] [b] [v]). In addition, the People failed to establish the periods during which defendant was incarcerated (see People v Gines, 284 AD2d 134), and the persistent violent felony offender information failed to list the applicable sentences for tolling purposes (see CPL 400.15 [2]; 400.16 [2]). Finally, we agree with defendant that the court failed to determine whether his convictions in other jurisdictions qualify as violent felony offenses under New York law (see generally People v Muniz, 74 NY2d 464, 467-470).

But the cautionary tale is in the relief granted

We therefore modify the judgment by vacating the sentence. We note that the sentence was imposed following defendant's plea of guilty to a superior court information upon a waiver of indictment, and the People conditioned their agreement to that waiver upon the court's imposition of the agreed-upon sentence. Thus, we remit the matter to County Court to resentence defendant or to "entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety" (People v Irwin, 166 AD2d 924, 925, citing People v Farrar, 52 NY2d 302, 307-308). Further, should the People be so disposed, they may withdraw their consent to the waiver of indictment (see CPL 195.10 [1] [c]; People v Terry, 152 AD2d 822, 823).

Hopefully, Mr. Hamilton was aware of this possibility.


Similar issue and holding in People v Williams 2008 NY Slip Op 02248
93/14/2008).

Sentences are Imposed by Judges and Not by DOCS

Norm Effman lived an appellate attorney's dream. On the morning of February 20, 2008 he argued two cases challenging the authority of the Department of Corrections to add a term of post release supervision {PRS} to a sentence when the sentencing judge has not imposed PRS. That afternoon, the Fourth Department issued two decisions (People ex rel. Burch v Goord 2008 NY Slip Op 01445 and People ex rel. Eaddy v Goord 2008 NY Slip Op 01446 ), in which the Court, expressly disavowed to of its prior decisions,granted Norm's clients' their requested releife, and joined the Second Circuit in holind ghtat judges and judges alone, impose sentences:

Supreme Court relied in part on our decisions in People v Hollenbach (307 AD2d 776, lv denied 100 NY2d 642) and People v Crump (302 AD2d 901, lv denied 100 NY2d 537). We reverse, however, because we agree with the decision of the Second Circuit Court of Appeals that, in the event that a court does not impose a period of postrelease supervision as part of a defendant's sentence, the sentence has no postrelease supervision component (Earley v Murray, 451 F3d 71, 76, reh denied 462 F3d 147; see People ex rel. [*2]Gerard [Colarusso] v Kralik, 44 AD3d 804, 804-805; People v Martinez, 40 AD3d 1012; see generally Hill v United States ex rel. Wampler, 298 US 460, 464). As the Court of Appeals has stated, postrelease supervision is a "direct consequence of a criminal conviction" (People v Catu, 4 NY3d 242, 244; see People v Louree, 8 NY3d 541, 545), and we conclude that it therefore must be expressly imposed by the court (see Earley, 451 F3d at 76). To the extent that our prior decisions in Hollenbach and Crump hold otherwise, they are no longer to be followed (see People ex rel. Eaddy v Goord, ___ AD3d ___ [Feb. 20, 2008]).

People ex rel. Burch v Goord [2008 NY Slip Op 01445].

Recent Court of Appeals Decisions on Crawford v Washington (541 US 36 [2004])

On February 19, 2008, the Court issued decisions in three cases with Crawford issues, two opinions regarding the application of Crawford. In so doing, the Court took a nuanced middle ground regarding the tests to be used in deciding whether evidence is testimonial and is, thus, subject to the confrontation requirements for testimonial evidence set forth in Crawford. The Court also seemed to rewrite a statute to mean what the Court believed the legislature would have intended it to mean, rather than what it actually says. That saves the trouble of the legislature having to actually amend the statute to avoid a perhaps unintended consequence of the statute as written. It also raises the question of why we pay legislators if judges can rewrite statutes.

First, in People v Rawlins and People v Meekins ( __ NY3d__. 2008 WL 423397, 2008 N.Y. Slip Op. 01420, 2/19/2008), the Court considered two categories of evidence upon which courts throughout the country are split as to how Crawford applies: DNA reports and , fingerprints, comparisons.

As the Court had previously done in People v Pacer [6 NY3d 504] the Court rejected the argument that there is a per se business records exception to Crawford, particularly given New York’s definition of the business exception as including police and governmental agencies.

Next the Court rejected the test for testimonial simply being the expectation of the declarant hat the statement would be used in court. Rather the New York Crawford test for testimonial has three primary factors:

we look not only to [1] the interrogator's primary purpose in questioning,
but also, [2] in declarant's view, to the purpose the statement was intended to serve, and to [3] the motivation for the statement.

Other courts have also considered these 3 factors:
1. Was the statement made in circumstances that suggest is likely future use to establish a fact at a criminal prosecution?
2. Was statement similar to that which witness would make on the stand
3. Was the statement made during an investigation and not an ongoing emergency

What happens when you apply the Court’s test?

Fingerprint comparison reports –
In People v Rawlins [37 AD3d 18] the 1st Dept had held that a fingerprint examiner's reports

qualified as nontestimonial business records, and thus did not violate defendant's right of confrontation.

(Rawlins, 37 AD3d 183 [1st Dept 2007]).

Of course, the Court of Appeals, in People v Pacer [6 NY3d 504], had held that the mere fact that a document is a "business record" does not answer the question of whether a document is "testimonial" under Crawford. But the First Department distinguished Pacer as follows:
Unlike the affidavit of mailing in People v Pacer, which the Court of Appeals found to be testimonial notwithstanding the business records exception contained in Crawford,
(1)

the fingerprint examination reports were not prepared for the specific purpose of litigation.

(2)

On the contrary, they were prepared in the regular course of an investigation in progress, at a time when defendant had not yet been arrested.

(3)

Moreover, the reports at issue were introduced through the testimony of a live witness subject to confrontation, albeit not the author of those particular reports.

The question as to whether there is a meaningful distinction between a report prepared for "the specific purpose of litigation" and one made during "an investigation in progress" was answered by the Court of Appeals, when it rejected this reasoning.

Rawlins was a prosecution for a series of burglaries, and the fingerprint examiner's report compared prints lifted at one of the crime scene to the defendant's known prints, and opined that the prints matched. The print comparison was requrested by the police. Regardless of whether the defendant was technically under arrest at that point, what other purpose would the fingerprint examiner's report serve other than to establish perpetrator's guilt at a subsequent trial?

Applying this logic, in Rawlins, the Court of Appeals held that fingerprint comparisons are testimonial and the fact that they are kept in the ordinary course of business of the police is irrelevant.

However, in this cases in which there was live testimony regarding fingerprint comparisons involving some of the other charged burglaries the error in the admission was held to be harmless.

Before discussing the Court's holding in Meekins decided in th same opiion with Rawlins it it worth mentioning the Court's other decision involving fingerprints and Crawford, decided the same day as Rawlins.

In People v Leon ( __ NY3d __, 2008 WL 420022, 2008 N.Y. Slip Op. 01421, 2/19/2008), the Court held that Crawford does not apply to the admission fo fingerprint comparisons at predicate sentencing procedures despite the language of CPL 400.15(7)(a) that the evidence at such hearing be subject to "the rules applicable to a trial of the issue of guilt." The Court explained that

[b]efore Crawford, there was little doubt that affidavits based on fingerprint comparisons were admissible at predicate sentencing hearings (see CPL 60.60[2]; CPLR 4520)...To agree with defendant's broad construction of section 400.15(7)(a) is to presume too much of the Legislature's intent, given the timing of the enactment of section 60.60(2). Testimonial hearsay under section 60.60(2) continued to be admitted after the passage of section 400.15, both at trial and at predicate felony hearings (although Crawford now places new restrictions at trial). Because, in our view, Crawford does not apply at sentencing proceedings, we decline to construe section 400.15 along with other hearsay statutes, which have always operated in tandem, in a way that yields unworkable results.

So, rather than hold that the statute must be interpreted to mean what its unambiguously language states and to suggest to the legislature that it might want to consder amending the provision to exclude fingerprint records at sentencing, the Court effectively held that we will just pretend the statute was written to mean what the legislature probably wanted it to say.

By the way the Fourth Department had applied the statute as written and held that fingerprint affidavits at predicate hearings are inadmissible under Crawford (see People v Williams [30 AD3d 980]). Oh well.

The other Crawford case decided by the Court of Appeals, in the same opinion as Rawlins, was People v Meekins ( __ NY3d__. 2008 WL 423397, 2008 N.Y. Slip Op. 01420, 2/19/2008), in which the Court held that DNA profiles, as opposed to DNA comparisons, are not testimonial. The Court explained

the testing and procedures employed in this case were "neither discretionary nor based on opinion" nor did they concern the exercise of fallible human judgment over questions of cause and effect. This is not to say that errors could not have been made in the testing procedure itself. But those errors, if any, are not the product of "testimony" as we understand that term. Because the Gene Screen technicians only contemporaneously recPeople v Williamsorded the procedures employed and "state[d] the results of a well-recognized scientific test" (id.) — for the purpose, we note, of permitting subsequent reviewers to verify their work — a supervising witness under oath familiar with the laboratory's requirements pursuant to rigid accreditation could illuminate on cross examination whether protocol was followed. Further, it is of no moment that the Gene Screen technicians knew or had every reason to know (because they were working on a rape kit) that their findings could generate results that could later be used at trial, nor that Gene Screen was performing work for law enforcement. Neither the prosecution nor law enforcement could have influenced the outcome; the government's involvement is inconsequential. Finally, the documents prepared by the Gene Screen technicians were not directly accusatory; none of them compared the DNA profile they generated to defendant's.

Thus, the Court distinguished between DNA comparisons and the testing which produces the DNA profiles. How persuasive is this reasoning? Why wouldn't errors in the preparation of the profile be testimonial and thus necessarily subject to confrontation. As the Court noted, this issue has divided Courts in other jurisdictions. But unless and until the United States Supreme Court holds otherwise, this is the law now in New York.