APPEALS-CRIMINAL

 

FAILURE TO INFORM DEFENDANT OF HIS RIGHT TO COUNSEL FOR AN APPEAL TAKEN BY THE PEOPLE DEPRIVES DEFENDANT OF THAT RIGHT

 

"The ultimate duty of informing the defendant of his right to have counsel on appeal rests with the State."

 

Failure to Inform Defendant of His Right to Counsel for an Appeal Taken by the People Deprived Defendant of that Right

 

The Second Department determined that a defendant must be informed of his right to counsel on an appeal taken by the People:

 

A defendant has important interests at stake on an appeal by the People, and is thus entitled to certain protections, including "the right to appellate counsel of defendant's choice and the right to seek appointment of counsel upon proof of indigency" ... . "The ultimate duty of informing the defendant of his right to have counsel on appeal rests with the State" ... and, absent record evidence that the defendant was informed of the right to counsel and waived that right, the Appellate Division should not proceed to consider and decide an appeal by the People ... . Since there is no such record evidence in this case, we agree with the defendant's contention that he was deprived of his constitutional right to counsel on the People's appeal to this Court ... . Accordingly, we assign counsel to represent the defendant on the People's appeal ..., and will consider and decide the remainder of the application upon the submission of all briefs. People v Clemente, 2015 NY Slip Op 01287, 2nd Dept 2-11-15

 

 

 

HOW TO INTERPRET A PLURALITY OPINION BY THE COURT OF APPEALS

 

"Following analogous precedent pertaining to plurality opinions by the United States Supreme Court, we apply the narrower approach of Judge Graffeo, which leaves intact well- settled law that a post-certificate assertion that the People are not ready does not, by itself, vitiate the previously filed certificate of readiness ...".

 

 

Even Though the People Indicated They Were Not Ready for Trial After Filing a Certificate of Readiness, the Presumption the Statement of Readiness Was Accurate and Truthful When Made Was Not Rebutted/How to Interpret a Plurality Opinion by the Court of Appeals Explained

 

The First Department determined the People's off-calendar statement of readiness was not illusory and, therefore, the defendant's speedy-trial motion was properly denied. The First Department explained how it interpreted the Court of Appeals decision in People v Sibbles, 22 NY3d 1174, which included two three-judge concurrences, one by Judge Lippman and one by Judge Graffeo:

 

The three judge concurrence by Chief Judge Lippman "would hold that, if challenged, the People must demonstrate that some exceptional fact or circumstance arose after their declaration of readiness so as to render them presently not ready for trial" at the next court appearance after filing the certificate (22 NY3d at 1178). Chief Judge Lippman found that the People's desire to strengthen their case did not satisfy this requirement.

 

The three judge concurrence by Judge Graffeo "would decide th[e] case on a narrower basis" (22 NY3d at 1179). While recognizing established precedent that the requirement of actual readiness under CPL 30.30 "will be met unless there is proof that the readiness statement did not accurately reflect the People's position'"(id. at 1180, quoting People v Carter, 91 NY2d 795, 799 [1998]) and that "there is a presumption that a statement of readiness is truthful and accurate" (22 NY3d at 1180), Judge Graffeo found the statement of readiness "illusory" because "[t]he People initially declared that they were ready for trial on February 22 but within days sought copies of the injured officer's medical records," admitted at the next calendar call that they "were not in fact ready to proceed because they were continuing their investigation" and that they "needed to examine the medical records to decide if they would pursue introduction of the records into evidence at trial", and then "gave no explanation for the change in circumstances between the initial statement of readiness and the[ir] subsequent admission that the[y] ... were not ready to proceed without the medical records" (22 NY3d at 1181).

 

Following analogous precedent pertaining to plurality opinions by the United States Supreme Court, we apply the narrower approach of Judge Graffeo, which leaves intact well- settled law that a post-certificate assertion that the People are not ready does not, by itself, vitiate the previously filed certificate of readiness ... . * * *

 

[Here], unlike, Sibblies, there is no "proof that the readiness statement did not accurately reflect the People's position," so as to render the prior statement of readiness illusory (Sibblies, 22 NY3d at 1180 ...). Rather, defense counsel merely speculated that the certificate of readiness was illusory because the People announced that they were not ready at the next court appearance after it was filed, which is insufficient to rebut the presumption that the certificate of readiness was accurate and truthful ... . People v Brown, 2015 NY Slip Op 02042, 1st Dept 3-17-15

 

 

MIXED QUESTIONS OF LAW AND FACT CANNOT BE REVIEWED BY THE COURT OF APPEALS---WHETHER THERE EXISTED REASONABLE SUSPICION TO STOP AND DETAIN IS SUCH A MIXED QUESTION

 

"Whether the circumstances of a particular case rise to the level of reasonable suspicion presents a mixed question of law and fact ... . Because the Appellate Division's reversals were thus not 'on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal' (CPL 450.90 [2] [a]), these appeals are not authorized to be taken."

 

 

Whether Arresting Officers Had Reasonable Suspicion to Stop and Detain Is a Mixed Question of Law and Fact Which Cannot Be Reviewed by the Court of Appeals

 

The Court of Appeals, over a strong dissent, determined it did not have jurisdiction to consider whether the police had reasonable suspicion to justify the stop and detention of the defendant, a mixed question of law and fact:

 

Whether the circumstances of a particular case rise to the level of reasonable suspicion presents a mixed question of law and fact ... . Because the Appellate Division's reversals were thus not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal" (CPL 450.90 [2] [a]), these appeals are not authorized to be taken.

 

While acknowledging that "determinations as to reasonable suspicion typically present a mixed question of law and fact," the dissent cites People v McRay (51 NY2d 594 [1980]) for the proposition that these cases instead involve a straight-up question of law — namely, "the minimum showing necessary to establish reasonable suspicion" ... . In McRay, though, the Appellate Division reversed the suppression court on the ground that the People's proof was insufficient as a matter of law to support probable cause to arrest (id. at 605). When we disagreed and reversed, we therefore remitted to the Appellate Division for factual review, emphasizing that an inference of probable cause was permitted, but not required, on the facts established (id. at 605, 606). Here, by contrast, the Appellate Division reversed the suppression court because, when exercising its independent fact-finding powers, it drew a different inference from the established facts, thus deciding a mixed question of law and fact. The dissenting Judge strongly disagrees with the Appellate Division. But the views of individual Judges of this Court on the merits of defendants' suppression motions are beside the point because the Criminal Procedure Law simply does not vest us with jurisdiction to entertain these appeals... . People v Brown, 2015 NY Slip Op 02552, CtApp 3-26-15

 

 

INVALID WAIVERS OF APPEAL

 

"...[T]he waiver of the right to appeal is invalid inasmuch as there is no indication in the record that defendant understood that the waiver of the right to appeal was separate and distinct from those rights automatically forfeited upon a plea of guilty ...". 

 

 

Appeal Waiver Invalid/Court Erroneously Told Defendant His Request for a Hearing on the Persistent Violent Felony Offender Tolling Calculations Violated the Plea Agreement---Matter Remitted for a Hearing

 

The Fourth Department determined defendant's waiver of appeal was invalid and defendant was entitled to a hearing on the time-calculations associated with the "persistent violent felony offender" status.  The ten-year period between the current felony and the prior felony is tolled by any periods of incarceration.  Defendant objected to the tolling calculations made by County Court. County Court effectively coerced defendant to agree to its tolling calculations by erroneously telling defendant his request for a hearing violated the plea agreement:

 

...[T]he waiver of the right to appeal is invalid inasmuch as there is no indication in the record that defendant understood that the waiver of the right to appeal was separate and distinct from those rights automatically forfeited upon a plea of guilty ... . We further agree with defendant that this case should be remitted for a hearing on the issue whether he is a persistent violent felony offender. A persistent violent felony offender is one who is convicted of a violent felony offense after having previously been subjected to two or more predicate violent felony convictions (see § 70.08 [1] [a]). The sentence upon the predicate violent felony convictions "must have been imposed not more than ten years before commission of the felony of which the defendant presently stands convicted" (§ 70.04 [1] [b] [iv]). However, "[i]n calculating the ten year period . . . , any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such incarceration" (§ 70.04 [1] [b] [v]).

 

Here, defendant admitted that he was convicted of two prior violent felonies, but objected to the tolling periods that were computed by County Court pursuant to Penal Law § 70.04 (1) (b) (v) and requested a hearing. After some discussion with the court, defendant conceded that the court's computations were correct, essentially waiving the necessity for a hearing. ...[H]is waiver of the hearing was not effective because it was the product of impermissible coercion by the court. The court indicated that it could consider defendant's request for a hearing to be a violation of the plea agreement, but that was not accurate. "While [the court] did advise defendant during the plea hearing that he was going to be sentenced as a [persistent violent] felony offender, it never specifically instructed him that admitting such [persistent violent] felony offender status was a condition of the plea agreement and that his failure to do so would result in a more severe sentence" ... . People v Vanhooser, 2015 NY Slip Op 02640, 4th Dept 3-27-15

 

 

FAILURE TO ADMINISTER THE "OATH OF TRUTHFULNESS" TO POTENTIAL JURORS IS A FUNDAMENTAL ERROR BUT NOT A "MODE OF PROCEEDINGS" ERROR---THEREFORE IT IS NOT APPEALABLE UNLESS PRESERVED BY OBJECTION

 

Although a "Fundamental" Error Requiring Reversal If Preserved, Failure to Administer the Oath of Truthfulness to Potential Jurors is Not a "Mode of Proceedings" Error

 

The Third Department determined that defendant was not entitled to reversal based on the trial judge's failure to administer the oath of truthfulness to potential jurors (Criminal Procedure Law 270.15(1)(a))  because the error, although fundamental, was not preserved for appeal by objection. It was not a "mode of proceedings" error (which would not need to be preserved by objection to require reversal). Had the error been preserved, reversal would have been mandatory. People v Chancey, 2015 NY Slip Op 03197, 3rd Dept 4-16-15