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 Possession with Intent to Distribute a Controlled Substance, Possession of a Firearm in Furtherance of a Drug Crime, Possession of a Firearm and Ammunition by a Convicted Felon, plain error, CPL § 30.30, grand jury, Level 2 Sex Offender, motion to set aside a sentence, 440 motion, ineffective assistance of counsel, Robbery in the First Degree, jury selection, Robbery in the Second Degree, Unlawful Fleeing a Police Officer in a Motor Vehicle in the Third Degree, Insurance Fraud in the Third Degree, Falsifying Business Records in the First Degree, Assault in the Second Degree, Obstructing Governmental Administration in the Second Degree, Driving While Intoxicated, territorial jurisdiction, Murder in the Second Degree, Burglary in the Second Degree, Tampering with Physical Evidence, Criminal Possession of a Weapon in the Second Degree, temporary lawful possession, 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

No reversals reported.

SECOND DEPARTMENT

CLICK TO READ People v. Khalfani Rose, Docket # 2017-10490

Appeal of conviction after jury trial of Criminal Possession of a Weapon in the Second Degree, Tampering with Physical Evidence reversed in part; Criminal Possession of a Weapon in the Second Degree reversed and dismissed.

Defendant saw the decedent arguing with Defendant’s brother while the decedent was armed with a gun. Defendant struggled with the decedent for control of the gun, and the decedent was shot in the process and died.  Defendant then took the gun, unloaded it, wrapped it in his bloodied shirt, and threw it in a garbage. It was never found.  At trial, Defendant was acquitted of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree under the theory that he intended to use the firearm unlawfully against another, but convicted of the other charges.

The Second Department ruled that the verdict for the remaining count of Criminal Possession of a Weapon in the Second Degree was against the weight of the evidence.  As reflected by the fact that the jury acquitted the defendant of the murder charge, based upon the defense of justification, the Defendant initially took possession of the gun with a valid legal excuse and there is no evidence that the Defendant retained the gun beyond opportunities to hand it over to the authorities.  The evidence indicated that the defendant retained the gun for a sufficient time to dispose of it. The fact that he disposed of the gun without turning it into the authorities did not convert his temporary and lawful possession of the gun into illegal possession.

However, getting rid of the shirt was Tampering with Physical Evidence.  But, that the evidence disposed of included a gun did not mean, a fortiori, that the Defendant also committed Criminal Possession of a Weapon in the Second Degree.

There was a dissenting opinion.

Reversed in part, affirmed in part.

CLICK TO READ People v. Rasheen Everett, Docket # 2013-11112

Appeal of a conviction after jury trial of Murder in the Second Degree, Burglary in the Second Degree, Tampering with Physical Evidence; conviction reversed, new trial ordered.

Here, the jury submitted a note requesting to view a specific portion of surveillance video taken from the victim’s building. The trial court failed to notify the parties regarding the existence of the note, failed to read the contents of the note into the record, and failed to respond to the note.

Because the trial court did not follow the mandatory procedures set forth in CPL 310.30 and People v O’Rama (78 NY2d 270), a new trial is required.

CLICK TO READ People v. Saeed Cousar, Docket # 2019-10562

Conviction upon guilty plea to Grand Larceny in the Fourth Degree; plea vacated, Indictment dismissed.

The Indictment alleged that Defendant used the personal identifying information of a Putnam County resident to electronically access a bank account and steal $9000.00.  This occurred while Defendant was in New Jersey.  Defendant moved to dismiss the Superseding Indictment for lack of territorial jurisdiction pursuant to CPL 20.20, and the motion was denied.

The Second Department reversed and dismissed the Indictment for lack of territorial jurisdiction.  Where New York’s territorial jurisdiction over an offense is in dispute, the People bear the burden of establishing jurisdiction under CPL 20.20 beyond a reasonable doubt.  Here, the People did not dispute the defendant’s claim that none of the elements of the alleged offense occurred in New York, and did not seek to establish, for instance, that the complainant’s bank account was located in New York.

Reversed and dismissed.

CLICK TO READ People v. Walter Wentland, Sr., Docket # 2020-00784 and 2020-00866

Appeal of a conviction upon a guilty plea to Attempted Assault in the Second Degree, Obstructing Governmental Administration in the Second Degree; guilty plea vacated, case remanded.

Defendant arrived at the scene of a car accident involving his son, who was allegedly driving while intoxicated.  When Defendant arrived at the scene, he was forcibly stopped and injured by police officers.  He was charged with Assault in the Second Degree and Obstructing Governmental Administration in the Second Degree, and the son was charged with Obstructing Governmental Administration in the Second Degree and Driving While Intoxicated in the same Indictment.

At the arraignment, one attorney appeared on behalf of both father and son because they were “united in interest.”  At a joint plea hearing, counsel advised the court that his clients were “a bit confused” as to the terms of the plea offer:  son would plead to one count of Driving While Intoxicated, and father would plead to the felony and misdemeanor, complete 1 year of probation, and then be permitted to withdraw his felony plea and receive a conditional discharge on the misdemeanor.  In his pre-sentence interview with Probation, Defendant maintained his innocence and told Probation he had to plead guilty to help his son.

Defendant, represented by new counsel, later moved to vacate the plea.  In that motion, Defendant alleged that during consultation with counsel about the plea, he stated he did not want to plead guilty but was told that if he did not, then the People would withdraw their offer to the son because it was a “package deal.”  Defendant also stated in his motion that he was innocent but reluctantly accepted the offer to benefit his son after the lawyer emphasized the benefit to the son.  Defendant argued he was coerced into taking the plea because he was told his son would likely face jail time if he did not plead guilty.  The court denied the motion.

The Second Department reversed, finding that the record demonstrates that the plea was motivated by coercive circumstances.  Additionally, the Defendant was deprived of conflict-free representation.

THIRD DEPARTMENT

No reversals reported.

FOURTH DEPARTMENT

CLICK TO READ People v. Tung Nguyen, Docket # 14-01895

Appeal of a guilty plea to Aggravated Driving While Intoxicated, Driving While Intoxicated, Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree, Reckless Endangerment in the First Degree, Resisting Arrest, Leaving the Scene of a Property Damage Incident Without Reporting; plea vacated.

Defendant was advised of the fine and mandatory conditional discharge for the first time immediately prior to sentencing, when the prosecutor stated that Defendant would be required to pay “all mandatory fines [and] surcharges” and that the period of incarceration “would be followed by a conditional discharge for the ignition interlock to be enforced.”

Normally, preservation by a pre-sentence motion to withdraw a guilty plea is required.  However, in this case, preservation was not required because Defendant did not have sufficient knowledge of the terms of the plea at the plea allocution and, when later advised, did not have sufficient opportunity to move to withdraw his plea.

CLICK TO READ People v. Christina Murray, Docket # 17-00108

Appeal of a conviction after jury trial of Insurance Fraud in the Third Degree, Falsifying Business Records in the First Degree; conviction reversed, new trial ordered.

At trial, the court permitted an arson investigator to testify that he concluded that a fire had been set intentionally.  This testimony was irrelevant to prove any of the essential elements of the crimes charged.  The expert’s testimony was only relevant to establish what property was lost in the fire, because Defendant claimed that a number of expensive electronics were damaged.  The issue was not whether the fire was set intentionally or not, the issue was whether Defendant actually owned the property she claimed was lost in the fire.

The investigator’s conclusion was highly prejudicial because it allowed the jury to speculate that Defendant burned the house down with all of her possessions inside of it in order to collect the insurance money, which, if true, would be conclusive of her alleged intent to defraud. That prejudice was compounded by the limiting instructions that the court provided to the jury after

opening statements. Moreover, the prejudice to Defendant was also compounded by the court’s failure to issue appropriate limiting instructions when the evidence in question was admitted and during the final charge to the jury.

CLICK TO READ People v. Emilio Padilla, Docket # 18-00710

Appeal of a conviction after jury trial of Robbery in the Second Degree, Unlawful Fleeing a Police Officer in a Motor Vehicle in the Third Degree; conviction reversed, new trial ordered.

The trial court erred in denying Defendant’s challenges for cause to two prospective jurors whose statements during voir dire cast serious doubt on their ability to be impartial During jury selection, defense counsel questioned prospective jurors as to their ability to separately consider the four incidents to which the counts of the indictments related. In particular, defense counsel questioned each juror as to whether he or understanding that the prosecution had to prove each individual incident beyond a reasonable doubt, as well as whether they could set aside any preconceived notions and consider each incident individually. Two prospective jurors indicated that they were not sure if they could consider each incident separately, even after being questioned repeatedly.

Because Defendant exercised peremptory challenges with respect to the prospective jurors and exhausted all of his peremptory challenges before the completion of jury selection, the denial of his challenges for cause constitutes reversible error.

New trial ordered.

CLICK TO READ People v. Emilio Padilla, Docket # 18-00712

Same as above, except this appeal applies to his conviction for Attempted Robbery in the Second Degree.

Double winner.

CLICK TO READ People v. William Reed, Docket # 18-01451

Appeal of an order denying a motion pursuant to CPL 440.10 to vacate the judgment convicting Defendant upon a jury verdict of Robbery in the First Degree.  Order reversed, remanded for an evidentiary hearing.

Defendant moved for post-conviction relief, alleging his trial counsel was ineffective for failing to make a sufficient motion to dismiss the indictment based on the alleged violation of Defendant’s statutory right to a speedy trial under CPL 30.30(1)(a).  In his motion, Defendant argued that more than 6 months of chargeable time elapsed on his Indictment and made specific allegations regarding the CPL 30.30 calculation.  On their face, the allegations appeared correct.

Because a failure of counsel to assert a meritorious speedy trial claim is, by itself, a sufficiently egregious error to render a defendant’s representation ineffective, a hearing was required to evaluate Defendant’s claim.

CLICK TO READ People v. Demetrien Bell-Brady, Docket # 19-02076

Appeal of an order denying Defendant’s motion to set aside a sentence pursuant to CPL 440.20.  Order reversed, case remanded.

The trial court denied the motion without considering the merits based upon its determination that defendant had the opportunity to challenge the legality of the sentence on his direct appeal, which was then pending, and that the facts and information relevant to the issue were available on direct appeal.

This was error.  The procedural bar set forth in CPL 440.10 (2) (b) applies only to motions  made pursuant to section 440.10, and defendant’s motion was made pursuant to section 440.20.

That procedural bar basically means you cannot use a 440.10 motion to challenge rulings that could have, and should have, been made on direct appeal.  Nor can you use a 440.10 motion to relitigate issues that were already decided on direct appeal.

Here, the ground raised in the motion to set aside the sentence was that that Defendant was improperly sentenced as a second felony offender because his prior federal conviction of bank robbery is not equivalent to any felony in New York.  That issue was not previously decided because on his direct appeal, the Fourth Department held the claim was not preserved.

Case remanded.

CLICK TO READ People v. James C. Huntley, Docket # 20-00154

Appeal of a SORA determination that Defendant is a Level 2 Sex Offender.  Order reversed.

Defendant was not represented by counsel at his SORA hearing.  Defendant’s waiver of his right to counsel was invalid.  The court failed to conduct the necessary searching inquiry and, instead, relied upon Defendant’s notation on the form notice he received about his SORA classification proceeding that he did “not wish to have counsel appointed.”

Order reversed, new hearing ordered.

SECOND CIRCUIT

CLICK TO READ United States v. Emmanuel Philippe, Docket # 18-3745

Appeal of a convicted after trial of Possession with Intent to Distribute a Controlled Substance, Possession of a Firearm in Furtherance of a Drug Crime, Possession of a Firearm and Ammunition by a Convicted Felon.

The Second Circuit held that the District Court erred in failing to instruct the jury that the Government was required to prove that Defendant knew that he was a convicted felon and therefore ineligible to legally possess a firearm or ammunition under the recent case Rehaif v. United States, 139 S. Ct. 2191 (2019).  The Second Circuit held that because Defendant did not preserve this issue at trial, plain error review applied.  However, it was plain error for the District Court to fail to so instruct the jury as to that element.

The key in this case is that in Defendant’s prior conviction, he was not sentenced to more than 1 year imprisonment – he was sentenced to time served.  Had he been sentenced to more than 1 year imprisonment, Defendant would have been aware that he was a felon, and any error would have been harmless.  There is also no evidence in the record that Philippe was necessarily informed or aware of the fact that he had been convicted of a “crime punishable by imprisonment for a term exceeding one year.

The firearm possession count was reversed, and a new trial ordered on that count only.

BONUS CASES

CLICK TO READ People v. Gerald E. Mosley, Docket # CR-009512-20KN (2021 NY Slip Op 50063(U))

Motion to dismiss pursuant to CPL § 30.30, motion granted.  Defendant was charged with Class A misdemeanors Petit Larceny, Penal Law § 155.25, Criminal Possession of Stolen Property in the Fifth Degree, Penal Law § 165.40, Attempted Assault in the Third Degree, Penal Law § 110/120.00(1), Menacing in the Third Degree, Penal Law § 120.15, Harassment in the Second Degree, Penal Law § 240.26(1).  The case started in 2020, after new legislation took effect imposing additional discovery requirements on the People before they could be deemed ready for trial pursuant to CPL § 30.30.

The Court rejected the People’s argument that the 35 days for the People to provide discovery under CPL § 245.10(1)(a)(ii) was excludable time under CPL § 30.30. The People failed to convert the misdemeanor complaint to an information by filing supporting depositions.  The People could not be ready for trial until they had converted all charges of the misdemeanor complaint to an information.  However, this matter was commenced and adjourned during the period at which CPL § 30.30 was suspended by various Executive Orders, therefore, this entire period is excluded.

Executive Order 202.67 ended the suspension of CPL § 30.30 on October 4, 2020. Because the People never converted the complaint to an information, 30.30 time began to accrue and more than 90 days elapsed.

Motion granted, case dismissed.

CLICK TO READ People v. Rockeem McMillian, Docket # CR-015946-20BX (2021 NY Slip Op 21016)

This case presents two questions:  (1)  whether the requirement of the recently-enacted criminal justice legislation that the People disclose to a defendant any statements he made to law enforcement at least 48 hours before he testifies in the grand jury, (see CPL 245.10[1][c]), is satisfied by the disclosure of the “sum and substance” of the statement rather than the full statement itself. This court holds that it is not.

The second question presented is, where a defendant has timely indicated his intention to testify before the grand jury, yet the prosecution does not disclose to him his videotaped statement that it has in its possession, and as a result of this failure defendant’s grand jury testimony is delayed, must the defendant be released from custody pursuant to CPL 180.80. This court holds that in such a situation he must be so released.

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Possession with Intent to Distribute a Controlled Substance, Possession of a Firearm in Furtherance of a Drug Crime, Possession of a Firearm and Ammunition by a Convicted Felon, plain error, CPL § 30.30, grand jury, Level 2 Sex Offender, motion to set aside a sentence, 440 motion, ineffective assistance of counsel, Robbery in the First Degree, jury selection, Robbery in the Second Degree, Unlawful Fleeing a Police Officer in a Motor Vehicle in the Third Degree, Insurance Fraud in the Third Degree, Falsifying Business Records in the First Degree, Assault in the Second Degree, Obstructing Governmental Administration in the Second Degree, Driving While Intoxicated, territorial jurisdiction, Murder in the Second Degree, Burglary in the Second Degree, Tampering with Physical Evidence, Criminal Possession of a Weapon in the Second Degree, temporary lawful possession,