In today’s New York Criminal Caselaw Roundup we’ll be discussing the latest in developments of New York criminal law, criminal appeals, and post-conviction relief.

Cases that we’ll cover include Illegal sentence, Grand Larceny in the Fourth Degree, drug program, Superior Court Information, Petit Larceny, Burglary in the Second Degree, Sexually Motivated Felony, Sexual Abuse in the First Degree, juror misconduct, illegal sentence, and more.

The New York Criminal Caselaw Roundup is a blog and video podcast by criminal defense and appeals lawyers Jason L. Russo and Steven J. Gaitman summarizing the latest developments in criminal law, criminal appeals, and post-conviction relief in the State of New York.  Each week we digest the latest reversed convictions throughout the New York Appellate Divisions and the New York Court of Appeals, as well as the United States Court of Appeals and the United States Supreme Court.

This is a FREE service designed to give you the cutting edge of developments in New York criminal law, appeals, and post-conviction relief.

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COURT OF APPEALS

No decisions reported

FIRST DEPARTMENT

CLICK TO READ People v. Clayton Alvarez, Docket # 2018-4474 (2021 NY Slip Op 00092)

Appeal of conviction after trial of Burglary in the Second Degree as a Sexually Motivated Felony, Sexual Abuse in the First Degree, reversed and remanded for a new trial.

During deliberations, juror who was a retired detective opined on the feasibility of DNA and fingerprint extraction, the likelihood that tests were conducted and evidence was suppressed regarding a set of keys that were in evidence, and the probability that defendant was lying based on his speech patterns and body language. These opinions, which were communicated to and apparently influenced the jury, were within the scope of the juror’s specialized expertise and were explicitly offered on the basis thereof, and at least some of these opinions concerned material issues, including defendant’s credibility and whether he entered the victim’s apartment by mistake

Because the juror acted as an unsworn expert witness, Defendant is entitled to a new trial.

Additionally, evidence that Defendant accessed a pornography website on his phone shortly committing the charged offense should have been excluded at trial as improper propensity evidence. This evidence was not admissible to establish defendant’s intent in sexually abusing the victim, which could be readily inferred from the charged conduct itself.  While it may have been admissible to establish Defendant’s intent in entering the victim’s apartment, its probative value was outweighed by its prejudice, and the admission of this evidence was not harmless.

New trial ordered.

SECOND DEPARTMENT

No reversals reported.

THIRD DEPARTMENT

CLICK TO READ People v. Christopher Miller, Docket # 110769

Guilty plea to two counts of Grand Larceny in the Fourth Degree affirmed, but sentences vacated.

Defendant waived Indictment and agreed to be prosecuted pursuant to a Superior Court Information under a plea agreement.  The agreement specified that he would enter the plea and participate in a drug treatment program.  If he was successful, he would be permitted to withdraw his plea and enter pleas to misdemeanor Petit Larceny and receive sentences of time served and a Conditional Discharge, if unsuccessful, he could receive consecutive prison terms of 2-4 years on each offense.  Defendant was represented by the Public Defender’s Office.

The County Court judge who accepted the plea left the bench and became the Public Defender prior to Defendant’s sentencing.

After he violated the terms of the drug program, Defendant then agreed to admit to the violation and receive consecutive sentences of 1.5 – 3 years, and waive his right to appeal.  He was still represented by the Public Defender’s Office. 

Under recent Third Department precedent, reversal and remittal for resentencing is required in light of People v Sumter (169 AD3d 1275 [2019]).

FOURTH DEPARTMENT

No reversals reported.

SECOND CIRCUIT

CLICK TO READ United States v. Donque Tyrell, Docket # 18-3029

Appeal of a conviction after trial of racketeering conspiracy in violation of 18 U.S.C. § 1962(d); murder in aid of racketeering, and aiding and abetting the same, in violation of 18 U.S.C. §§ 1959(a)(1) and 2; conspiracy to distribute and possess with intent to distribute narcotics in violation of 21 U.S.C. § 846; distribution of narcotics within one thousand feet of playgrounds and schools, in violation of 21 U.S.C. §§ 846 and 860; and three counts of firearms offenses in violation of 18 U.S.C. § 924(c).  The Government concedes the District Court erred in its sentencing calculations regarding the drug convictions.  Defendant was convicted only of distributing and conspiring to distribute less than 50 kilograms of marijuana on the two narcotics counts, which carry maximum sentences of five and ten years’ imprisonment, respectively. The District Court imposed illegal sentences of 25 years on each.  Those sentences were vacated and the case was remanded for resentencing on those counts only.

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