COURT OF APPEALS

CLICK TO READ People v. Zaquan Walley, No. 108

People’s appeal of an order from the Appellate Division that reversed a plea of guilty and dismissed a Superior Court Information on the grounds that the waiver of indictment was defective for failure to include the approximate time of the crime charged.  Order reversed, case remanded to the Appellate Division for consideration of other arguments raised on appeal but not decided upon.

The time of the incident is not an element of Criminal Possession of a Weapon in the Second Degree.  Here, the waiver of indictment form and the Superior Court Information did not specify the time of the alleged crime, but did specify the date.  Because the waiver of indictment did not omit jurisdictional information, it was valid and the Appellate Division should not have held that the waiver was invalid.

FIRST DEPARTMENT

No Reversals Reported

SECOND DEPARTMENT

CLICK TO READ People v. Markens Antoine, Docket # 2017-03402

Appeal of conviction after trial of Attempted Murder in the Second Degree, Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree, conviction reversed, remanded for new trial.

At trial, while the verdict was being read, when the jury foreperson announced guilty on the final charge, the clerk started to read back the verdict and Defendant disrupted the courtroom by yelling profanity and declaring his innocence.  The court immediately directed the court officers to remove Defendant from the courtroom, and when Defendant protested, the court repeated the order.  Defendant was removed and the jury was polled and the verdict entered.

The Second Department reversed, finding that the trial court’s failure to first issue a warning to Defendant prior to removing him from the courtroom violated his right to be present at a material stage of the trial – the reading of the verdict and polling of jurors.  The repeated orders to the court officers to remove Defendant from the courtroom did not count as a sufficient warning, especially because Defendant’s outburst was not violent and in nature and did not constitute an emergency.

New trial ordered.

Two judges dissented from this opinion.

THIRD DEPARTMENT

CLICK TO READ People v. Adam Hiedeman, Docket # 110843

Conviction after trial of Attempted Rape in the Second Degree, Attempted Criminal Sexual Act in the Second Degree, Attempted Endangering the Welfare of a Child reversed, Indictment dismissed.

State police on a joint Federal task force posted an advertisement on Craigslist’s personal ads, posing as a 41-year old man and his female friend looking for a mail to join them for some “some alternative/taboo fun.”  Defendant responded to the ad and engaged in a series of emails and text messages with police.  Eventually, the police wrote in a message that the male was the stepfather of a 14-year old girl, and arranged to meet Defendant.  During the meeting, Defendant was asked what he wanted to do, and he responded “I have no idea” and “I don’t know, whatever” several times.  At one point, Defendant attempted to leave before the 14-year old “girl” showed up, and at that point he was arrested.

At trial, Defendant testified that he believed the police were engaging in role play

The Third Department reversed the convictions as legally insufficient because the evidence did not establish that Defendant came “dangerously near” completing any of the offenses, and the People failed to establish that he intended to commit the offenses charged.  The act of driving to the agreed-upon location did not pass the stage of mere preparation and bring him dangerously close to committing the attempted crimes.

Indictment dismissed.

CLICK TO READ People v. Frank Drayton, Docket # 109111 &

People v. Frank Drayton, Docket # 109079 and 110646

Appeal of a conviction after trial of Robbery in the Second Degree, Conspiracy in the Fourth Degree, Resisting Arrest, Criminal Possession of Stolen Property in the Fifth Degree, and appeal of a denial of a motion for post-conviction relief under CPL § 440.10 without a hearing.

In 2016, a confidential informant was involved in a controlled buy for the purchase of drugs and a gun. At the controlled buy, Defendant and others threatened the CI if he did not give them money.  Defendant proceeded to trial on an alibi defense and was convicted.  At sentencing, the People sought to have him sentenced as a predicate felon, and Defendant unsuccessfully challenged the prior conviction.  After sentencing, Defendant filed a 440 motion, raising ineffective assistance of counsel based on counsel’s failure to investigate an alibi defense – specifically that counsel failed to interview witnesses at the restaurant where Defendant was at the time of the incident and failed to secure security video footage from the restaurant and video from the crime scene.  The trial court denied the motion without a hearing.

The Third Department reversed the sentence based on the finding that the prior conviction was invalid, and remanded the case for an evidentiary hearing on the 440 motion.

CLICK TO READ People v. Frank Drayton, Docket # 109111

Companion case, Defendant pled guilty to Criminal Sale of a Controlled Substance in the Third Degree after he waived indictment and his right to appeal on the promise that the People would recommend a 3.5 year sentence.  Defendant was sentenced to 9 years with permission to enter the Willard drug program.  He was paroled and later rearrested and violated on parole.

The Third Department reversed the conviction, finding that the trial court failed to advise Defendant of his rights to confront witnesses, remain silent, and did not ask him whether he had spoken with his lawyer about the rights he was waiving by pleading guilty.  Rather, the court merely asked him whether he had enough time to talk with his counsel about “the facts of [the] drug charges, going to trial, not going to trial[] and things like that” and “[his] jury trial rights, all [his] other rights.” In the absence of any affirmative showing that Defendant fully comprehended and voluntarily waived his constitutional rights, the plea was unknowing and involuntary.  Additionally, the court abused its authority by unilaterally changing the terms of the plea agreement.

CLICK TO READ People v. Matthew A. Lukosavich, Docket # 110170

Appeal of a conviction after jury trial of Grand Larceny in the Fourth Degree, reversed, new trial ordered.

The victim discovered her apartment had been burglarized and several items stolen.  She noticed that the same day, two acquaintances had deleted her from the social media accounts, and she tracked on of her stolen computer tablets to a town where the two men lived.  Police interviewed the two men, who confessed to burglarizing the apartment with Defendant, and they told police that the remainder of the stolen property was at Defendant’s home.  Police obtained a search warrant for Defendant’s home, and in the process of executing it, found the victim’s property in a wooded area near the house.

Three weeks prior to trial, Defendant filed a “Notice of Potential Alibi-type Witnesses” that listed his father and grandmother to testify as to Defendant’s whereabouts at the time of the burglary.  The People filed a motion to preclude, arguing the notice was untimely.  The next day, without giving the defense the opportunity to respond, the court granted the People’s motion to preclude.  Defendant moved for reconsideration arguing that the People suffered no prejudice because the father had already provide a statement to police as to Defendant’s whereabouts at the time of the burglary, but the motion was denied.

At trial, the two co-defendants testified against Defendant pursuant to a cooperation agreement.  Defendant did not present alibi testimony from the father pursuant to the order.

The Third Department reversed, finding that the court abused its discretion in precluding the father’s testimony.  Preclusion of a defense is a drastic remedy that should not be imposed without considering any lesser sanction.  Here, alibi testimony would have been important to Defendant’s defense because the People’s case was largely based on accomplice testimony and the People were already on notice as to what the father would have said.

New trial ordered.

FOURTH DEPARTMENT

CLICK TO READ People v. Mark A. Diroma, Docket # 16-01116

Conviction after trial of Tampering With a Witness in the Third Degree reversed, Indictment dismissed.

Although the evidence at trial established that Defendant assaulted the victim in violation of an Order of Protection and days later, left her voicemails threatening more violence if she pressed charges against him, the evidence was legally insufficient to establish Tampering with a Witness.  At the time of the incidents, the victim was not “about to be called as a witness in a criminal proceeding.”  Accordingly, the evidence was legally insufficient.

CLICK TO READ People v. Z.H., Docket # 18-01631

Appeal of a conviction upon a guilty plea to Assault in the Second Degree, conviction replaced with Youthful Offender treatment.

Defendant, a high school student, was threatened on social media by a classmate with violence, and avoided school before returning two days later.  When she went back to school, the classmate attacked her, and Defendant attempted to defend herself.  A substitute teacher intervened, and Defendant did not realize that he was a teacher trying to protect her, and pulled out a knife and mistakenly cut the teacher on the hand. 

There was extensive mitigation material submitted before sentencing, and Defendant even met with the teacher before pleading guilty for hours, and wrote a heartfelt, genuine apology.  The Department of Probation, the prosecutor, and the victim all recommended Youthful Offender treatment.  The court denied YO status, basing its determination on the fact that other charges were pending against Defendant at the time of the incident, and also considered whether she had received unduly favorable treatment as a result of her gender.

The Fourth Department exercised its discretion and adjudicated Z.H. a Youthful Offender noting the nine Cruickshank factors:

1. the gravity of the crime and manner in which it was committed,
2. mitigating circumstances,
3. defendant’s prior criminal record,
4. prior acts of violence,
5. recommendations in the presentence reports,
6. defendant’s reputation,
7. the level of cooperation with authorities,
8. defendant’s attitude toward society and respect for the law,
9. The prospects for rehabilitation and hope for a future constructive life

A GREAT read.

CLICK TO READ People v. Reggie Caswell, Docket # 13-01552

Appeal of a resentence, case remanded AGAIN for resentencing.

Defendant was denied his right to counsel when the court allowed him to represent himself at the resentencing without first ruling on Defendant’s multiple requests for assignment of counsel.  The absence of counsel prevented Defendant from adequately contesting his adjudication as a Second Felony Offender and arguing against the imposition of the maximum sentence.

Case remanded with instructions to afford Defendant the right to counsel before a new sentencing proceeding.

SECOND CIRCUIT

CLICK TO READ United States v. Marcus Snow, Docket # 19‐3115

Appeal of an Order denying a motion to reduce sentence pursuant to the First Step Act, order reversed, case remanded for reconsideration.

Defendant was convicted after a jury trial of Conspiracy to Possess with Intent to Distribute at least 50 Grams of Crack Cocaine in 2004.  He was originally sentenced to life imprisonment, but that was reduced to 30 years after the Sentencing Guidelines were retroactively amended.  In 2019, Defendant moved for a reduction of sentence pursuant to the First Step Act.  The District Court denied his motion, finding he was ineligible for relief because the First Step Act of 2019 and the Fair Sentencing Act of 2010 did not alter his Guidelines sentence.

The Second Circuit reversed, finding that Defendant is eligible for relief because a change in Guidelines range is not relevant to whether a defendant is eligible for a First Step Act resentencing.  Case remanded for a determination of the motion on the merits.

BONUS CASE OF THE WEEK

CLICK TO READ People v. Hiten Lakhani, Docket # 2019-1121 RO CR

John Ingrassia for the win AGAIN!

Appeal to the 9^th and 10^th Appellate Term from a conviction after a jury trial of Sexual Abuse in the Second Degree, conviction reversed, new trial ordered.

Defendant was charged with lifting up the shirt of the 14-year old complainant, touching her breasts, photographing himself doing so, and placing her hands on his body.  At trial, the defense called a forensic psychiatrist, and in rebuttal, the People presented the testimony of a licensed social worker who was qualified “to testify as an expert as to the issue of forensic interviewing and best practices,” which apparently included the topics of false memories and suggestibility. The People’s examination of this witness was limited to the aforementioned topics. However, on cross-examination, defendant’s trial attorney repeatedly asked the witness questions regarding scenarios similar to the facts at bar—concerning when a child makes an outcry of sexual abuse and then does not mention it again for several years, after which the parent repeatedly asks the child about it but the child does not want to talk about it—which brought up the topic of original trace memories.  This elicited testimony that bolstered the complainant’s testimony.

During cross-examination of the Defendant, the prosecutor repeatedly asked whether the complainant had lied and to explain why the complainant would have lied. However, at no time

during Defendant’s direct testimony did he state that the complainant had lied.  Defense counsel did not object.  On summation, the prosecutor argued that Defendant could not think of any reason why the complainant would have made up her allegations.  Again, Defendant’s trial attorney failed to object.

The Appellate Term held that this shifted the burden of proof, and defense counsel’s eliciting bolstering testimony from the People’s expert and counsel’s failure to object constituted ineffective assistance of counsel that was apparent from the record.