COURT OF APPEALS

People v. Alexis Rodriguez, No. 59

Conviction affirmed, but interesting dissenting opinion by Judge Rivera about the undeveloped body of law in the State of New York regarding cooperation agreements and their standards of interpretation where a defendant claims neither to have intended nor understood the agreement to include the People’s demand for assistance with an unspecified criminal investigation or prosecution.

People v. Carlos Tapia, No. 19

A portion of a testifying witness’s prior grand jury testimony can be properly admitted as a past recollection recorded to supplement his trial testimony where the witness is available for cross-examination.

Very interesting dissent of Judge Wilson which cites the trial of Aaron Burr, who shot and killed Alexander Hamilton, and a decision of Chief Justice John Marshall who presided over the trial in 1807 regarding the importance of the right to confront witnesses.

FIRST DEPARTMENT

People v. Dwayne Gentles, Indictment # 1924-2013 (2019 NY Slip Op 02623)

Conviction after trial of overdriving, torturing, and injuring animals (Agriculture & Markets Law § 353) reversed and remanded for new trial.  Trial court’s jury instruction constructively amended the indictment giving the jury an alternative theory upon which to convict the Defendant.

SECOND DEPARTMENT

People v. Andre Floyd, Docket # 2014-02093

Conviction for Murder in the Second Degree, Attempted Murder in the Second Degree, Criminal Possession of a Weapon in the Second Degree, motion to suppress physical evidence granted and new trial ordered.  Police stop of vehicle based on an anonymous tip unjustified, tip insufficient to establish reasonable suspicion

People v. Daniel Brooks, Docket # 2014-09701

Finding of Violation of Probation reversed and dismissed, Defendant’s yelling at his probation officer that he would “blow her up” insufficient to establish that Defendant failed to lead a law-abiding life, a condition of probation.

People v. Jose Olivo, Docket # 2017-05023 and 2017-05024

Convictions in separate cases for Criminal Possession of Stolen Property in the Fourth Degree, Reckless Endangerment in the First Degree held in abeyance, court required to consider Defendant for Youthful Offender status.

People v. Naseer Mohamed, Docket # 2014-05045

Conviction upon guilty plea of Criminal Sale of a Controlled Substance in the Third Degree held in abeyance, court did not advise defendant that he could be deported as a consequence of guilty plea.

THIRD DEPARTMENT

People v. Danyel J. Titus, Docket # 109607 and People v. Danyel J. Titus, Docket # 109608

Conviction for Attempted Burglary in the Third Degree and violation of probation vacated, waiver of Indictment invalid, Superior Court Information did not include the date and approximate time of charged offense.

FOURTH DEPARTMENT

No decisions until April 26, 2019.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

United States v. Shondell Walker, Docket # 17-1896

Defendant pled guilty in October 2011 pursuant to a plea agreement in return for an estimated sentence of 108 to 135 months in prison. The District Court, at the Government’s request, then postponed Walker’s sentencing hearing while a trial proceeded against Walker’s co‐defendant. After that trial concluded, Walker’s sentencing hearing was held in May 2017. At the hearing, the Government asked for a significant sentence increase based in part on information that arose during the co‐defendant’s trial but which the Government knew about at the time it negotiated Walker’s plea agreement. The District Court accepted the Government’s new estimate and sentenced Walker to 360 months in prison.

Government breached plea agreement when the Government, based on information that it knew at the time of the plea, sought a substantially higher sentence than that estimated in Walker’s plea agreement.

Remanded for resentencing before different District Court Judge.