NEW YORK COURT OF APPEALS

No decisions reported.

APPELLATE DIVISION, FIRST DEPARTMENT

No reversals reported.

APPELLATE DIVISION, SECOND DEPARTMENT

July 5, 2023

CLICK TO READ People v. Jose M. Alvarenga, Docket # 2019-14108

https://www.nycourts.gov/courts/AD2/Handdowns/2023/Decisions/D72682.pdf

The Defendant appeals his conviction from Queens County of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree.  The judgment was based on a jury verdict, and a sentence had been imposed.

Jose M. Alvarenga, was convicted for his alleged involvement in the murder of Fernando Gonzalez Chavez, who was shot and killed in 2017. The key evidence against Alvarenga came from the testimony of a witness named Brenda Alvarado-Merino, who lived with Alvarenga and another individual named Roberto Abrego. All three individuals, including Chavez, were members of the same gang.

During the trial, Brenda testified that before the murder, Roberto had been in communication with another gang member over the phone. Roberto instructed Brenda to “get ready,” after which Brenda, Roberto, and Alvarenga left their residence together in a car and traveled to Queens. Brenda claimed that during the car ride, Alvarenga used a slang phrase that suggested he was going to kill someone. Upon their arrival in Queens, Alvarenga allegedly got out of the car, returned after a few minutes, and stated that he wasn’t sure if he had hit the victim. Brenda also stated that Alvarenga later made additional admissions about the killing.

However, there was no physical or eyewitness evidence directly connecting Alvarenga to the shooting. The main evidence against him was Brenda’s testimony about his alleged statements and actions before and after the murder. Additionally, the trial included the introduction of a cooperation agreement that Roberto had entered into, where he agreed to provide information concerning the shooting. Despite being a key witness, Roberto did not testify during the trial.

The appeal was based on claims of ineffective assistance of counsel. The defendant argued that his attorney made several errors during the trial that collectively deprived him of a fair trial. The errors included failing to object to the introduction of evidence related to Roberto’s guilty plea and cooperation agreement, failing to request proper jury instructions related to Brenda’s testimony as an accomplice, and failing to request a missing witness charge regarding Roberto’s absence as a witness.

The Second Department found that the cumulative effect of these errors undermined the defendant’s right to effective assistance of counsel. The court noted that the introduction of evidence related to Roberto’s guilty plea and cooperation agreement violated the defendant’s Sixth Amendment right to confront witnesses against him. Furthermore, the absence of proper accomplice-related jury instructions and the failure to request a missing witness charge also contributed to the ineffective assistance of counsel.

As a result, the court reversed the judgment and remanded the case to the Supreme Court, Queens County, for a new trial. The court also addressed some errors in the jury selection process during voir dire, instructing the trial court to avoid making certain statements to prospective jurors in any retrial.

CLICK TO READ People v. Pedro Mendez Ramos, Docket # 2021-01439

https://www.nycourts.gov/courts/AD2/Handdowns/2023/Decisions/D72712.pdf

The defendant appealed a judgment from the Supreme Court, Nassau County, convicting him of multiple charges including Assault in the First Degree, Gang Assault in the First Degree, Criminal Possession of a Weapon in the Third Degree, and Intimidating a Victim or Witness in the Third Degree.  The court modified the judgment by vacating some convictions and reducing the term of imprisonment for gang assault in the second degree. The court found the evidence sufficient to establish the defendant’s guilt beyond a reasonable doubt. However, it ruled that the trial court should have precluded a police detective’s testimony interpreting a video of the assault, as it improperly influenced the jury. The error was not deemed harmless for certain convictions, leading to their vacatur. The sentence for gang assault in the second degree was deemed excessive and was reduced. The case was remitted for a new trial on the vacated charges.

CLICK TO READ People v. Julio M. Pelaez, Docket # 2022-00786

https://www.nycourts.gov/courts/AD2/Handdowns/2023/Decisions/D72724.pdf

The defendant appealed a judgment from the County Court, Suffolk County, convicting him of Course of Sexual Conduct Against a Child in the First Degree, Endangering the Welfare of a Child, and Harassment in the First Degree. The court sentenced him to 25 years imprisonment, followed by 20 years of post-release supervision for the first charge, one year for the second, and 90 days for the third, with sentences to run concurrently. The defendant’s appeal also contested the denial of his motion to suppress his statements to law enforcement. The court modified the judgment, reducing the sentence for the first charge to 17 years imprisonment and 15 years of post-release supervision. The court affirmed the denial of the defendant’s motion to suppress his statements, stating that he had voluntarily waived his Miranda rights. The court also upheld the admission of evidence of the defendant’s physical abuse of the complainant and domestic violence against the complainant’s mother. The court found the evidence legally sufficient to establish the defendant’s guilt beyond a reasonable doubt and ruled that the defendant received effective assistance of counsel.

July 12, 2023

CLICK TO READ People v. Richard Cabassa, Docket # 2021-00090

https://www.nycourts.gov/courts/AD2/Handdowns/2023/Decisions/D72796.pdf

The defendant appealed his resentence from the Supreme Court, Queens County, for Promoting Prostitution in the Second Degree and Promoting Prostitution in the Third Degree.  The court resentenced him to concurrent indeterminate terms of imprisonment of 5 to 15 years and 2 1/3 to 7 years respectively. However, the resentence was modified to 4 to 12 years and 2 to 6 years respectively, in the interest of justice. The defendant’s prior federal conviction for unlawful possession of a firearm was not considered a felony in New York for enhanced sentencing. The court ruled that the original sentence was illegal and the Supreme Court was not bound by its limits. However, the resentence to a longer term was deemed an improvident exercise of discretion due to the lack of reasons cited and the non-violent nature of the defendant’s criminal record.

CLICK TO READ People v. Edward Keyes, Docket # 2022-04133

https://www.nycourts.gov/courts/AD2/Handdowns/2023/Decisions/D72344.pdf

The People appealed an order from the Supreme Court, Nassau County, dated April 21, 2022, which upheld a previous decision to grant the defendant’s motion to suppress his statements to law enforcement. This decision was a reversal of an earlier order from October 28, 2021, which had denied the defendant’s motion. Upon reargument, the court decided to reverse the April 21, 2022 order, stating that there was probable cause to arrest the defendant for Leaving the Scene of an Accident Without Reporting. Therefore, the court deemed that suppression of the defendant’s statements to law enforcement was unwarranted, and denied the defendant’s request for reargument.

CLICK TO READ People v. Kimiko Leonard, Docket # 2022-05301

https://www.nycourts.gov/courts/AD2/Handdowns/2023/Decisions/D72831.pdf

In this case, the People appealed from an order dated May 2, 2022, issued by the Supreme Court of Queens County and presided over by Justice Stephanie Zaro. This order had granted the defendant’s motion to dismiss the indictment against her based on her claim that her statutory right to a speedy trial, as per CPL § 30.30(1)(a), had been violated.

The Second Department reversed, denied the motion to dismiss, and reinstated the Indictment. 

On June 30, 2021, the defendant was arraigned as part of an indictment. The indictment included charges of conspiracy in the second degree and multiple counts of criminal sale of a controlled substance in the first degree. The defendant made a motion to dismiss the indictment against her on the grounds that her statutory right to a speedy trial, as outlined in CPL 30.30(1)(a), had been violated.

The People opposed this motion. They contended, among other points, that certain periods of time were excludable under CPL § 30.30(4)(g) and CPL § 30.30(4)(b), which would impact the calculation of the speedy trial time frame. Specifically, they argued that a 59-day period from August 20, 2021, to October 18, 2021, should be considered excludable under CPL 30.30(4)(g), and a 40-day period from January 14, 2022, to February 23, 2022, should be considered excludable under CPL 30.30(4)(b).

However, the Supreme Court, in an order dated May 2, 2022, granted the defendant’s motion to dismiss the indictment.

The Second Department held that the arguments presented by the People on this appeal were preserved for review. They noted that when a defendant is charged with a felony, the People are mandated to be prepared for trial within six months from the start of the criminal action. This timeframe is defined by CPL § 30.30(1)(a) and established legal precedents. If this readiness declaration is not met, the prosecution can be dismissed unless the People can demonstrate that certain periods of time should be excluded.

The People successfully contended that the 59-day period from August 20, 2021, to October 18, 2021, should be excluded from the speedy trial calculation under CPL § 30.30(4)(g). This exclusion was deemed appropriate due to the exceptional circumstances surrounding the voluminous discovery materials and the diligent efforts of the People in producing them. Additionally, the 40-day period from January 14, 2022, to February 23, 2022, was found excludable under CPL 30.30(4)(b) due to the nature of the adjournment, as recorded in the proceedings held on January 14, 2022.

Given that the total time chargeable to the People did not exceed 183 days, which aligned with the period prescribed by CPL § 30.30(1)(a), the Second Department reversed the Supreme Court’s order. They declared that the defendant’s motion to dismiss the indictment based on the violation of her statutory right to a speedy trial should be denied. Consequently, the indictment against the defendant was reinstated, and the case was remanded to the Supreme Court, Queens County, for further proceedings regarding the indictment.

CLICK TO READ People v. Quame Riley, Docket # 2022-04571

https://www.nycourts.gov/courts/AD2/Handdowns/2023/Decisions/D72813.pdf

The People appealed an order entered on April 15, 2022, by the County Court of Westchester County, presided over by Judge Anne E. Minihan. This order, in part, granted a component of the defendant’s omnibus motion that sought to suppress physical evidence.

The Second Department reversed the order in the part appealed from, based on legal grounds. As a result, the aspect of the defendant’s omnibus motion that aimed to suppress physical evidence was denied.

At a suppression hearing, the People presented testimony indicating that the defendant had been a passenger in a vehicle that had been pulled over for a traffic violation. Upon approaching the vehicle, which had all windows rolled down, the two police officers detected a strong odor of marijuana emanating from it. The driver of the car admitted to the presence of a bag containing marijuana in the back seat. Following this, the officers requested both the driver and the defendant to exit the vehicle. During a search, one of the officers found a firearm in the defendant’s jacket pocket.

Subsequently, the defendant faced a charge of criminal possession of a weapon in the second degree. He then moved, among other things, to suppress the physical evidence that had been obtained. The County Court conducted the suppression hearing and, in part, granted the defendant’s omnibus motion, leading to the suppression of the physical evidence.

When dealing with a motion to suppress physical evidence, the People are initially responsible for demonstrating the legality of police conduct. However, the ultimate burden of proving that the evidence should not be used against the defendant falls on the defendant. The credibility determinations made by the hearing court during this process hold significant weight and are generally upheld on appeal unless they are clearly unsupported by the record.

In this case, the defendant did not dispute the legality of the traffic stop itself but rather challenged the legality of the subsequent search conducted on his person.  (BIG MISTAKE). During the time frame relevant to this case (2020), the law stated that if a police officer qualified by training and experience detected the odor of marijuana emanating from a vehicle, that smell alone was sufficient to establish probable cause to search the vehicle and its occupants. Multiple legal precedents confirmed this principle (see People v Potter, 208 AD3d 802, 804; People v Henderson, 197 AD3d 663, 664; People v McLaren, 131 AD3d 548, 549; People v Chestnut, 43 AD2d 260, 261-262, aff’d 36 NY2d 971). Given that both officers involved in this case testified that they recognized the odor of marijuana based on their training and experience, the probable cause for searching the defendant’s person was established.

The County Court’s decision to rely on People v Reid (24 NY3d 615) as a basis for determining that the officers’ testimony failed to establish probable cause for the search was incorrect. People v Reid specifically dealt with the exception to the warrant requirement for searches incident to an arrest, which was not applicable in this case.

In light of the above analysis, the County Court’s decision to grant the defendant’s omnibus motion to suppress physical evidence was found to be in error.

APPELLATE DIVISION, THIRD DEPARTMENT

No reversals reported.

APPELLATE DIVISION FOURTH DEPARTMENT

July 6, 2023

CLICK TO READ People v. Gregory Ramos, Docket # KA 20-00081

https://www.nycourts.gov/courts/ad4/clerk/decisions/2023/0706T1500/PDF/0549.pdf

Defendant appealed a conviction after a jury trial for Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree.  The appeal resulted in a unanimous reversal of the judgment based on the facts. As a result, the indictment was dismissed, and the case was remitted to the Supreme Court, Erie County, for proceedings according to CPL 470.45.

The defendant’s conviction stemmed from his alleged involvement in a fatal shooting at a bar, based on a theory of accessorial liability. The evidence against the defendant included his presence with the actual shooter, the codefendant, near the scene of the crime in a white sedan, as well as video surveillance footage from the area. The defendant argued that the evidence presented was legally insufficient to support his conviction and that the verdict went against the weight of the evidence.

The court acknowledged that while the evidence was legally sufficient to establish the defendant’s shared intent and knowledge of the codefendant’s actions, it also recognized its unique factual review power to reassess the jury’s findings. The court noted that defendant’s presence at the crime scene, along with evidence of his assistance to the codefendant, was insufficient to prove defendant’s criminal liability without evidence that he was aware of the codefendant’s intent.

However, the court also considered the testimony of a jailhouse informant, who claimed that the defendant confessed to planning and participating in the shooting with the codefendant for retribution. The informant’s testimony contradicted the video evidence, and the court analyzed the credibility of this testimony. The court found that the informant’s account was inconsistent with the video evidence and that the timing of events in the video did not align with the informant’s narrative. Therefore, the court concluded that the informant’s testimony was not credible and that without this testimony, there was insufficient evidence to infer defendant’s shared intent or knowledge.

Ultimately, the court determined that the verdict was against the weight of the evidence. It found that there was no reasonable basis to conclude that the defendant shared the codefendant’s intent to cause harm or that he knew about the codefendant’s armed status. As a result, the court reversed the judgment, dismissed the indictment, and ordered the case to be remitted for further proceedings as per CPL § 470.45.

In light of this determination, the defendant’s remaining arguments were considered moot.

July 28, 2023

CLICK TO READ People v. Shawn Conway, Docket # KA 22-01491

https://www.nycourts.gov/courts/ad4/clerk/decisions/2023/0728T1500/PDF/0492.pdf

The People appeal a decision by the Chautauqua County Court, dated June 27, 2022, granting a portion of the defendant’s omnibus motion to suppress physical evidence seized under a search warrant. The order is reversed, the suppression of tangible evidence is denied, and the case is sent back to Chautauqua County Court for further proceedings.

The case revolves around the issuance of a search warrant based on information provided by a confidential informant (CI) regarding the defendant’s alleged involvement in drug-related activities. The police officer submitted a search warrant application to a town justice, detailing the CI’s claims that drugs and drug paraphernalia were present in a hotel room occupied by the defendant. The application also highlighted the CI’s reliability, citing past successful collaborations with the police that resulted in arrests and search warrants.

Upon review of the search warrant application, the County Court granted part of the defendant’s omnibus motion to suppress the evidence seized during the execution of the search warrant. The court ruled that while the CI’s basis of knowledge was established through observations of the hotel room, the veracity component was not met. The court held that the application lacked sufficient independent corroboration of the CI’s claims through police investigation and direct observations.

The People argue on appeal that the veracity component was satisfied, as the CI’s track record of reliability was demonstrated by previous successful collaborations leading to arrests and search warrants. The People assert that additional independent corroboration was not necessary in this case.

The Fourth Department agreed with the People’s argument, stating that the veracity component of the Aguilar-Spinelli test is concerned with the credibility and reliability of the informant. The court acknowledges that the investigator’s statement about the CI’s successful past collaborations is sufficient to establish reliability. It dismisses the defendant’s claim that the lack of specific details regarding prior arrests undermines the CI’s credibility.

The court emphasizes that search warrant applications should be evaluated based on common sense and not overly technical requirements. It underscores the importance of considering the informant’s track record when assessing reliability. Thus, the court concludes that the County Court’s decision to suppress the evidence was in error and reverses that decision.

The case is remitted to the Chautauqua County Court for further proceedings on the indictment. Additionally, the court suggests that upon remittal, the defendant should be allowed to renew their motion for a hearing to determine the existence of the CI.

CLICK TO READ People v. Shawn M. Thorpe, Docket # KA 21-00198

https://www.nycourts.gov/courts/ad4/clerk/decisions/2023/0728T1500/PDF/0119.pdf

In this case, the defendant appeals a judgment from the Oswego County Court convicting him of Aggravated Family Offense, Aggravated Harassment in the Second Degree, Burglary in the Third Degree, Grand Larceny in the Third Degree, and Grand Larceny in the Fourth Degree. The defendant argues various points on appeal, challenging the trial court’s decisions and the sufficiency of evidence.

The defendant’s first contention is that the trial court erred in denying the defense counsel’s request for a mental examination of the defendant under CPL § 730.30. This statute allows the court to order a competency examination if there are reasonable grounds to believe the defendant might be incapacitated. The court’s decision to order such an examination is discretionary and depends on the circumstances. In this case, the defendant’s behavior, including refusing to communicate with his attorney, prompted the request for a mental examination. The court denied the request, deeming the defendant’s behavior obstinance rather than incompetence. The appellate court agrees with the trial court’s decision, asserting that the court did not abuse its discretion in denying the request. The court had observed the defendant’s behavior and deemed him capable of understanding the proceedings and assisting in his own defense.

The defendant also challenges the trial court’s denial of defense counsel’s requests to be relieved from representing him. The appellate court states that this contention is not preserved for review since the defendant did not join in the requests. The court further concludes that even if the issue was preserved, the trial court did not abuse its discretion in denying the requests. The record did not establish the required “good cause for substitution.”

Another point of contention is the introduction of Molineux evidence by the prosecution, which related to prior incidents of domestic violence between the defendant and the victim. The court rejects the defendant’s contention, stating that the evidence was relevant to the nature of the relationship and the context of the charged conduct. The court found that the evidence’s probative value outweighed its potential prejudice to the defendant, as the court provided limiting instructions to the jury.

The defendant also argues that certain testimonies about additional prior bad acts deprived him of a fair trial. The court states that this contention is mostly unpreserved for review, and the court’s prompt curative and limiting instructions alleviated any potential prejudice.

The defendant challenges the legal sufficiency of evidence supporting the convictions of aggravated family offense and aggravated harassment in the second degree. The court agrees with the defendant’s contention and determines that the evidence of physical injury is insufficient to support the convictions for these offenses. For these offenses, physical injury is a key element, and the evidence presented did not establish that the victim suffered substantial pain or impairment of physical condition. Therefore, the court reverses the convictions for these offenses.

Regarding the remaining counts of burglary in the third degree, grand larceny in the fourth degree, and grand larceny in the third degree, the court finds that the verdict is not against the weight of the evidence. The court also dismisses the defendant’s claim of unduly harsh or severe sentencing.

CLICK TO READ People v. Pablo M. Santiago, Docket # KA 21-01759

https://www.nycourts.gov/courts/ad4/clerk/decisions/2023/0728T1500/PDF/0464.pdf

This is an appeal from a judgment rendered by the Ontario County Court on October 27, 2021. This judgment had resulted in the defendant’s conviction upon a jury verdict for charges of Driving While Ability Impaired and Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree.  The conviction was reversed and the Indictment dismissed with

The conviction had been based on the charges of driving while ability impaired, which was deemed a lesser included offense of driving while intoxicated, and aggravated unlicensed operation of a motor vehicle in the first degree. The underlying incident revolved around a traffic stop, during which the defendant was driving without a valid license. Notably, his seven-year-old son was present in the vehicle alongside open containers of alcoholic beverages. During this encounter, the defendant exhibited signs of being under the influence of alcohol and acknowledged consuming alcohol earlier that evening.

The defendant contended that the County Court erred by refusing to suppress the physical evidence that had resulted from the traffic stop and his subsequent arrest, but the Fourth Department affirmed the denial of suppression. 

However the Fourth Department agreed that the trial court should have challenged for cause Prospective Juror # 2.  During jury selection, Prospective Juror # 2 stated twice that the presence of a child in the vehicle could influence her ability to fairly and impartially evaluate the evidence.

The Fourth Department emphasized that the prospective juror’s prior indications of potential bias against the defendant or the nature of the case could not be rectified by a mere assertion of impartiality. Therefore, the court determined that the denial of the defendant’s challenge for cause constituted reversible error, especially considering that the defendant had used all his peremptory challenges during the process of jury selection.

CLICK TO READ People v. Joshua M. Sanford, Docket # KA 22-00354

https://www.nycourts.gov/courts/ad4/clerk/decisions/2023/0728T1500/PDF/0470.pdf

Defendant appeals from a conviction based upon his guilty plea to Criminal Contempt in the First Degree issued by the Steuben County Court on October 1, 2021.

The Fourth Department unanimously reversed the judgment in question. This reversal was executed both on legal grounds and as a matter of discretion, for the sake of justice. Consequently, the plea entered by the defendant was vacated, and the case was sent back to the Steuben County Court for additional proceedings related to the superior court information.

Defendant’s appeal revolved around the contention that the County Court had erred by accepting his Alford plea. This type of plea, established in North Carolina v Alford (400 US 25 [1970]), allows a defendant to plead guilty while maintaining their innocence, acknowledging that the evidence against them is strong enough to potentially result in a conviction. The defendant claimed that the record did not possess the required strong evidence of his actual guilt to support this type of plea.

However, since the defendant had not taken the step to move for withdrawing the plea or vacating the conviction on these grounds, he had not preserved this argument for review. Typically, this lack of preservation would prevent the argument from being considered on appeal. Furthermore, this case did not meet the limited exceptions to the preservation requirement. Despite this, the appellate court chose to exercise its authority and review the defendant’s unpreserved argument based on its discretion in the interest of justice, as allowed by CPL § 470.15 (3) (c).

During the plea allocution process, the defendant maintained that the evidence indicating he had physically struck the victim was insufficient. Specifically, he contested the element of physical contact required for criminal contempt in the first degree under Penal Law § 215.51 (b) (v). The court’s additional inquiries, however, failed to ascertain the strength of the evidence regarding this specific element of the crime.

As the record presented on appeal lacked the necessary strong evidence to support the defendant’s guilt of criminal contempt in the first degree, the appellate court concluded that the County Court had made an error in accepting the plea, in accordance with the principles established in Alford. Additionally, the court referenced People v Alexander (97 NY2d 482, 486 n 3 [2002]) to reinforce the conclusion. In light of these findings, the judgment of conviction was reversed, the plea was vacated, and the case was remanded back to the County Court for further proceedings regarding the superior court information.

CLICK TO READ People v. Jahhaile R. Reid, Docket # KA 20-00080

https://www.nycourts.gov/courts/ad4/clerk/decisions/2023/0728T1500/PDF/0469.pdf

Defendant appealed from a conviction after jury trial of Failure to Register or Verify Status as a Sex Offender.

The Fourth Department unanimously reversed the judgment and dismissed the Indictment

Defendant challenged the sufficiency of the evidence at trial.  This argument was based on the contention that the evidence diverged from the theory presented in the indictment.

The analysis of this case began with the consideration of the State constitutional provision that a person cannot be held accountable for a crime, including an infamous one, without being indicted by a grand jury. The Constitution further mandates that the accused should be informed of the nature and cause of the accusation. An indictment serves multiple purposes, including providing the defendant with fair notice of the accusations, preventing the prosecutor from altering charges at trial, and preventing double jeopardy.

When proof at trial differs from what is alleged in the indictment, it can compromise these functions of the indictment. If the proof is directed solely at a new theory rather than the theory charged in the indictment, the conviction can be deemed insufficient to support the charge. Variance between proof and indictment, where the proof exclusively supports a new theory, can result in reversal.

In this case, the defendant’s contention was that the evidence presented at trial did not align with the theory contained in the indictment. The indictment alleged that on or about December 10, 2018, the defendant failed to appear at the law enforcement agency within 20 days of the third anniversary of his initial registration and every three years thereafter to provide a current photograph, as required by the statute. The evidence did not support this theory, as it established that the defendant’s obligation was to appear every three years following his initial registration.

The Fourth Department agreed with the defendant’s argument. It emphasized that the indictment charged a discrete statutory violation in December 2018 and did not contain language suggesting a continuing offense. Since the statute defines the offense based on specific time periods, and the indictment specified a distinct failure to appear on or about December 10, 2018, the evidence presented at trial that indicated a violation in August 2016 and beyond was incongruent with the indictment’s language.

The court pointed out that such a variance between the proof and indictment could compromise the accused person’s right to fair notice and the Grand Jury’s authority to determine the charges. Consequently, the evidence was legally insufficient to sustain the defendant’s conviction, leading to the reversal of the judgment and the dismissal of the indictment.

CLICK TO READ People v. Gary Maull, Docket # KA 20-01608

https://www.nycourts.gov/courts/ad4/clerk/decisions/2023/0728T1500/PDF/0404.pdf

Defendant appealed, by permission, the summary denial of a CPL § 440.10 motion for post-conviction relief without a hearing.  The Fourth Department reversed and remanded for an evidentiary hearing. 

Defendant was originally convicted of Murder in the Second Degree after trial.  The victim had been killed by a gunshot to the head in August 2014, with DNA evidence linking the defendant and a co-defendant, Thomas Hall (referred to as Turtle), to the crime scene. The prosecution’s theory was that the defendant had shot the victim in retaliation for the victim’s alleged informants on the defendant.

At the time of the victim’s death, the defendant was already facing charges related to a burglary and assault case from June 2013. The defendant and his attorney had several phone calls while the defendant was held at Cattaraugus County Jail due to bail jumping charges. Unbeknownst to them, some of these calls were intercepted and eavesdropped on by the Cattaraugus County Sheriff’s Office, including a detective who was a lead investigator in the murder case. The detective created notes summarizing the intercepted calls, which discussed aspects of the murder case. The defendant was indicted in the murder case after these eavesdropping incidents.

The defendant moved to vacate the judgment pursuant to CPL § 440.10, alleging violations of his right to counsel due to the eavesdropping and ineffective assistance of counsel. The court initially denied the motion, claiming the defendant waived his right to a hearing. However, it was later determined that the defendant did not intentionally waive his right to a factfinding hearing on the motion.

The court’s summary denial of the motion was deemed an abuse of discretion. There was evidence to suggest that a factfinding hearing was needed to ascertain whether the eavesdropping had tainted the evidence presented at trial, as the detective involved in the eavesdropping played a significant role in the investigation and trial. Additionally, a hearing was necessary to address the defendant’s claim of ineffective assistance of counsel, as the evidence suggested that the defense counsel did not adequately respond to the eavesdropping revelations.

The  ruling was reversed, and it was instructed to conduct a factfinding hearing to address both the defendant’s right to counsel and ineffective assistance of counsel claims related to the eavesdropping.  The Fourth Department also noted that the Cattaraugus County District Attorney had failed to file a brief in opposition to the appeal, which was noted as dereliction of duty.

CLICK TO READ People v. Melvin Johnson, Docket # KA 22-01547

https://www.nycourts.gov/courts/ad4/clerk/decisions/2023/0728T1500/PDF/0577.pdf

Defendant appealed an order issued by the Onondaga County Court, entered on July 11, 2022. The order determined the defendant’s risk level under the Sex Offender Registration Act (SORA) to be Level Three Sex Offender.

The defendant claimed that the County Court had erred in analyzing his request for a downward departure from the presumptive level three risk. The defendant argued that given the circumstances, a departure was warranted.

Under SORA, the court must undergo a three-step analysis to determine whether a departure from the presumptive risk level is appropriate based on the offender’s guidelines factor score. The first step involves deciding if the alleged circumstances for departure are not adequately considered by the Guidelines. The second step requires assessing if there is enough evidence to support the alleged circumstances. If these two steps are satisfied, a departure can be considered in the third step, wherein the court exercises discretion to weigh aggravating and mitigating factors.

In this case, the County Court erred by not weighing the aggravating and mitigating factors properly in relation to a downward departure. Despite acknowledging the defendant’s mitigating circumstances, the court concluded that no circumstances would justify a departure due to the gravity of the underlying offense. However, this reasoning was incorrect. The court should have exercised its discretion by considering the totality of the circumstances to determine if a departure was warranted. Although the court’s error was recognized, the appellate court was able to review the defendant’s request without remitting it back to the lower court.

In reviewing the defendant’s request for a downward departure, it was determined that his performance in educational and vocational programs was adequately considered in his presumptive risk assessment. However, the defendant failed to prove that his response to sex offender treatment was exceptional, a factor that could support a departure. Nevertheless, considering the defendant’s mitigating circumstances, which included being a 62-year-old paraplegic with debilitating medical conditions, the appellate court found that his risk of reoffense was minimized. Given this mitigating factor and the gravity of the underlying offense, a downward departure to a level two risk was warranted. Thus, the order was modified to reflect this determination.

In conclusion, the defendant’s appeal against the order determining his risk level as a level three sex offender was successful. The court recognized the error in the lower court’s analysis and exercised its discretion to modify the order, designating the defendant as a level two risk under SORA.

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THIS EDITION’S SEARCH TERMS (TAGS)

Murder in the Second Degree, Criminal Possession of a Weapon in the Second Degree, ineffective assistance of counsel, Assault in the First Degree, Gang Assault in the First Degree, Criminal Possession of a Weapon in the Third Degree, and Intimidating a Victim or Witness in the Third Degree, insufficient evidence, Course of Sexual Conduct Against a Child in the First Degree, Endangering the Welfare of a Child, Harassment in the First Degree, suppression, Promoting Prostitution in the Second Degree, prior conviction, speedy trial, CPL 30.30, motion to dismiss, confidential informant, search warrant, Aggravated Family Offense, Aggravated Harassment in the Second Degree, Burglary in the Third Degree, Grand Larceny in the Third Degree, Molineux evidence, Driving While Ability Impaired, Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree, jury selection, Criminal Contempt in the First Degree, Failure to Register or Verify Status as a Sex Offender, SORA, 440 motion, post-conviction relief