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CRIMINAL LAW.

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DENIAL OF YOUTHFUL OFFENDER TREATMENT WAS NOT AN ABUSE OF DISCRETION, 35-YEAR SENTENCE WAS HARSH AND EXCESSIVE (FOURTH DEPT).

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The Fourth Department, over a two-justice dissent, determined that Supreme Court did not abuse its discretion when it declined to sentence youthful offender treatment. The majority deemed the 35 year sentence excessive and directed that the sentences be served concurrently. The dissenters argued that the sentences were not excessive:

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CPL 720.10 (3) provides that "a youth who has been convicted of an armed felony offense . . . is an eligible youth if the court determines that one or more of the following factors exist: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant's participation was relatively minor although not so minor as to constitute a defense to the prosecution." Contrary to defendant's contention, "traditional sentencing factors, such as the criminal's age, background and criminal history, are not appropriate to the mitigating circumstances analysis . . . Rather, the court must rely only on factors related to the defendant's conduct in committing the crime, such as a lack of injury to others or evidence that the defendant did not display a weapon during the crime"... , or other factors that are directly related to the crime of which defendant was convicted ... . Here, we perceive no basis to disturb the court's determination that defendant is not an eligible youth because, in the first crime of which he was convicted, "defendant carried a gun to an encounter with known gang members, displayed the gun, . . . and . . . fired a shot that struck one of the" gang members... , and he was again armed with a loaded weapon when he was arrested several weeks later. ...

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The victim in this case is a rival gang member who attempted to rob members of defendant's gang. Defendant arrived at the scene of the attempted robbery and shot at the victim, who was struck by a bullet but survived. Defendant obviously deserves a stern sentence but, in our view, 35 years is too severe. Indeed, the maximum punishment for intentional murder is 25 years to life ... . Defendant has no prior criminal record (he was adjudicated a youthful offender on a misdemeanor), he was only 18 years old when he committed the crimes, and the People offered him a 20-year sentence prior to trial as part of a plea bargain. Under the circumstances, and considering that the victim was attempting to commit an armed robbery when he was shot, we conclude that defendant's sentence is unduly harsh and severe. People v Jones, 2018 NY Slip Op 07556, Fourth Dept 11-9-18

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CRIMINAL LAW (DENIAL OF YOUTHFUL OFFENDER TREATMENT WAS NOT AN ABUSE OF DISCRETION, 35-YEAR SENTENCE WAS HARSH AND EXCESSIVE (FOURTH DEPT))/YOUTHFUL OFFENDER DENIAL OF YOUTHFUL OFFENDER TREATMENT WAS NOT AN ABUSE OF DISCRETION, 35-YEAR SENTENCE WAS HARSH AND EXCESSIVE (FOURTH DEPT))/SENTENCING (HARSH AND EXCESSIVE, DENIAL OF YOUTHFUL OFFENDER TREATMENT WAS NOT AN ABUSE OF DISCRETION, 35-YEAR SENTENCE WAS HARSH AND EXCESSIVE (FOURTH DEPT))/YOUTHFUL OFFENDER DENIAL OF YOUTHFUL OFFENDER TREATMENT WAS NOT AN ABUSE OF DISCRETION, 35-YEAR SENTENCE WAS HARSH AND EXCESSIVE (FOURTH DEPT))/HARSH AND EXCESSIVE SENTENCE (DENIAL OF YOUTHFUL OFFENDER TREATMENT WAS NOT AN ABUSE OF DISCRETION, 35-YEAR SENTENCE WAS HARSH AND EXCESSIVE (FOURTH DEPT))

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CRIMINAL LAW.

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PEOPLE DID NOT PROVIDE A SUFFICIENT RACE-NEUTRAL REASON FOR STRIKING AN AFRICAN-AMERICAN JUROR, CONVICTION REVERSED (FOURTH DEPT).

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The Fourth Department, reversing defendant's conviction, determined that the People did not provide a sufficient race-neutral reason for striking an African-American juror. The case had been remitted for a hearing on the issue:

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We agree with defendant that the People failed to meet their burden at step two of the Batson analysis to articulate a "race-neutral reason" for striking the prospective juror ... . On remittal, the prosecutor testified that he did not remember his reason for striking the prospective juror at issue, but stated that it had "nothing to do with race." The prosecutor testified that, instead, "there was something on [the prospective juror's] jury questionnaire . . . that [he] did not particularly like," which would have provided a basis for exercising a peremptory challenge if he "could not clarify [that] issue" during voir dire. The prosecutor, however, had no recollection of the subject prospective juror's actual questionnaire, which, apparently, was not preserved.

We conclude that the prosecutor's articulated reason for striking the only African-American prospective juror was insufficient to satisfy the People's burden. As noted, the prosecutor could not recall a specific reason for striking the prospective juror, but rather assured the court in a conclusory fashion that the challenge was not based on race and was based, instead, on "something" in the prospective juror's questionnaire. Thus, the prosecutor's explanation "amounted to little more than a denial of discriminatory purpose and a general assertion of good faith" ... . Where, as here, "the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, . . . precedents require that [defendant's] conviction be reversed" ... . People v Davis, 2018 NY Slip Op 07569, Fourth Dept 11-9-18

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CRIMINAL LAW (PEOPLE DID NOT PROVIDE A SUFFICIENT RACE-NEUTRAL REASON FOR STRIKING AN AFRICAN-AMERICAN JUROR, CONVICTION REVERSED (FOURTH DEPT))/JURORS (CRIMINAL LAW, PEOPLE DID NOT PROVIDE A SUFFICIENT RACE-NEUTRAL REASON FOR STRIKING AN AFRICAN-AMERICAN JUROR, CONVICTION REVERSED (FOURTH DEPT))/BATSON CHALLENGE (CRIMINAL LAW, JURORS, PEOPLE DID NOT PROVIDE A SUFFICIENT RACE-NEUTRAL REASON FOR STRIKING AN AFRICAN-AMERICAN JUROR, CONVICTION REVERSED (FOURTH DEPT))

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CRIMINAL LAW.

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DEFENDANT WAS NOT INFORMED OF THE POSTRELEASE SUPERVISION ASPECT OF HIS SENTENCE, PLEA VACATED (FOURTH DEPT).

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The Fourth Department vacated defendant's guilty plea because he was not informed of the postrelease supervision aspect of the sentence:

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On appeal from a judgment convicting him upon his plea of guilty of criminal sexual act in the first degree ..., defendant contends that reversal of the judgment and vacatur of the plea are required because County Court failed to advise him, at the time of the plea, of the period of postrelease supervision that would be imposed at sentencing. We agree ... . People v Hemingway, 2018 NY Slip Op 07587, Fourth Dept 11-9-18

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CRIMINAL LAW (DEFENDANT WAS NOT INFORMED OF THE POSTRELEASE SUPERVISION ASPECT OF HIS SENTENCE, PLEA VACATED (FOURTH DEPT))/SENTENCING (DEFENDANT WAS NOT INFORMED OF THE POSTRELEASE SUPERVISION ASPECT OF HIS SENTENCE, PLEA VACATED (FOURTH DEPT))/GUILTY PLEA  (DEFENDANT WAS NOT INFORMED OF THE POSTRELEASE SUPERVISION ASPECT OF HIS SENTENCE, PLEA VACATED (FOURTH DEPT))/POSTRELEASE SUPERVISION (DEFENDANT WAS NOT INFORMED OF THE POSTRELEASE SUPERVISION ASPECT OF HIS SENTENCE, PLEA VACATED (FOURTH DEPT))

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CRIMINAL LAW, APPEALS.

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DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BECAUSE THE PENNSYLVANIA BURGLARY WAS NOT THE EQUIVALENT OF A NEW YORK FELONY, ALTHOUGH THE ERROR WAS NOT PRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

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The Fourth Department determined, in the interest of justice, that defendant should not have been sentenced as a second felony offender based upon a Pennsylvania burglary conviction:

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... [T]he predicate conviction, i.e., the Pennsylvania crime of burglary (18 Pa Cons Stat § 3502), is not the equivalent of a New York felony. Although defendant failed to preserve that contention for our review ... , we exercise our power to address it as a matter of discretion in the interest of justice ... . Upon our review of Pennsylvania statutory and case law, "there is no element in the Pennsylvania statute comparable to the element in the analogous New York statute that an intruder knowingly' enter or remain unlawfully in the premises . . . [and t]he absence of this scienter requirement from the Pennsylvania burglary statute renders improper the use of the Pennsylvania burglary conviction as the basis of the defendant's predicate felony adjudication" ... . People v Funk, 2018 NY Slip Op 07558, Fourth Dept 11-9-18

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CRIMINAL LAW (SECOND FELONY OFFENDER, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BECAUSE THE PENNSYLVANIA BURGLARY WAS NOT THE EQUIVALENT OF A NEW YORK FELONY, ALTHOUGH THE ERROR WAS NOT PRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/APPEALS (CRIMINAL LAW, SECOND FELONY OFFENDER, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BECAUSE THE PENNSYLVANIA BURGLARY WAS NOT THE EQUIVALENT OF A NEW YORK FELONY, ALTHOUGH THE ERROR WAS NOT PRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/SENTENCING (SECOND FELONY OFFENDER, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BECAUSE THE PENNSYLVANIA BURGLARY WAS NOT THE EQUIVALENT OF A NEW YORK FELONY, ALTHOUGH THE ERROR WAS NOT PRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/SECOND FELONY OFFENDER (DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BECAUSE THE PENNSYLVANIA BURGLARY WAS NOT THE EQUIVALENT OF A NEW YORK FELONY, ALTHOUGH THE ERROR WAS NOT PRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT))

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CRIMINAL LAW, APPEALS.

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IN A CLOSE CASE THE SECOND DEPARTMENT HELD DEFENDANT VALIDLY WAIVED HIS RIGHT TO APPEAL, THE COMPREHENSIVE OPINIONS BY TWO CONCURRING JUSTICES AIM TO INSTRUCT TRIAL JUDGES ON THE REQUIREMENTS FOR A VALID WAIVER (SECOND DEPT).

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The Second Department, in a full-fledged opinion by Justice Leventhal, with a concurring opinion by Justice Scheinkman (joined by all of the justices), determined that defendant validly waived his right to appeal. The comprehensive opinions aim to instruct trial judges on what is required for a valid waiver:

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Although we hold that the defendant validly waived his right to appeal, precluding review of his contention that the sentence imposed was excessive, we take the opportunity to respectfully urge our trial courts to give greater attention to the colloquy used in taking a waiver of the right to appeal. * * *

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The defendant answered in the affirmative when the Supreme Court asked, "Do you understand that one of the terms of this plea agreement is that you will not exercise your right to appeal." The court's phrasing served to differentiate the rights the defendant gave up by pleading guilty from the right to appeal the defendant gave up as part of this plea agreement. The defendant also answered in the affirmative when the court later asked, "By waiving your right to appeal, you will be foreclosed forever from complaining about any errors that may have occurred in this proceeding. Do you realize that?" This question provided some explanation of the nature of the right to appeal and the consequences of waiving it, and was met with an affirmative response. Additionally, the defendant acknowledged signing the written waiver form, and answered that he discussed it with his attorney before he signed it, that he understood all those discussions, that he was satisfied with those discussions, and that he signed it of his own free will. Granted, whether the appeal waiver is valid in this case presents a very close question given, inter alia, that the on-the-record explanation of the nature of the right to appeal and the consequences of waiving it was terse and included no reference to a higher court or the Appellate Division; the defendant had a limited education, having stopped attending school in the eighth grade; and he had minimal prior experience with the criminal justice system, having been adjudicated a youthful offender but not having been convicted of a felony previously. Nonetheless, the record before us, consisting of the oral colloquy and the detailed written waiver, sufficiently demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal. People v Batista, 2018 NY Slip Op 07445, Second Dept 11-7-18

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CRIMINAL LAW (APPEALS, WAIVER, IN A CLOSE CASE THE SECOND DEPARTMENT HELD DEFENDANT VALIDLY WAIVED HIS RIGHT TO APPEAL, THE COMPREHENSIVE OPINIONS BY TWO CONCURRING JUSTICES AIM TO INSTRUCT TRIAL JUDGES ON THE REQUIREMENTS FOR A VALID WAIVER (SECOND DEPT))/APPEALS (CRIMINAL LAW, WAIVER, IN A CLOSE CASE THE SECOND DEPARTMENT HELD DEFENDANT VALIDLY WAIVED HIS RIGHT TO APPEAL, THE COMPREHENSIVE OPINIONS BY TWO CONCURRING JUSTICES AIM TO INSTRUCT TRIAL JUDGES ON THE REQUIREMENTS FOR A VALID WAIVER (SECOND DEPT))/WAIVER OF APPEAL (CRIMINAL LAW, IN A CLOSE CASE THE SECOND DEPARTMENT HELD DEFENDANT VALIDLY WAIVED HIS RIGHT TO APPEAL, THE COMPREHENSIVE OPINIONS BY TWO CONCURRING JUSTICES AIM TO INSTRUCT TRIAL JUDGES ON THE REQUIREMENTS FOR A VALID WAIVER (SECOND DEPT))

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CRIMINAL LAW, APPEALS.

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DEFENDANT'S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT).

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The Fourth Department, vacating defendant's guilty plea, determined defendant's statement during the plea allocution raised a viable affirmative defense which required further inquiry by the court. The error was considered on appeal under a rare exception to the preservation requirement:

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Although defendant's contention survives his valid waiver of the right to appeal ... , he failed to preserve that contention for our review inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction on that ground ... . This case nonetheless falls within the rare exception to the preservation requirement ... . Defendant made a statement during the plea allocution that raised a potentially viable affirmative defense pursuant to Penal Law § 130.10 (1), thereby "giving rise to a duty on the part of the court, before accepting the guilty plea, to ensure that defendant was aware of that defense and was knowingly and voluntarily waiving it" ... . We conclude that the court's inquiry here was insufficient to meet that obligation ... . People v Rosario, 2018 NY Slip Op 07564, Fourth Dept 11-9-18

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CRIMINAL LAW (DEFENDANT'S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))/APPEALS (PLEA ALLOCUTION, DEFENDANT'S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))/PLEA ALLOCUTION (DEFENDANT'S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))/GUILTY PLEA (DEFENDANT'S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))

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CRIMINAL LAW, ATTORNEYS, APPEALS, IMMIGRATION LAW.

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DEFENDANT'S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, THE PAPERS SUFFICIENTLY RAISED THE QUESTION WHETHER DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF THE PLEA AND WHETHER THAT FAILURE AMOUNTED TO INEFFECTIVE ASSISTANCE UNDER THE FEDERAL STANDARD, THE ARGUMENT THAT THE COURT FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES WAS REJECTED BECAUSE THERE WAS A SUFFICIENT RECORD TO HAVE RAISED THAT ARGUMENT ON APPEAL (SECOND DEPT).

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The Second Department, reversing Supreme Court, determined defendant's motion to vacate his conviction by guilty plea should not have been denied without a hearing. Defendant alleged he was incorrectly told by his attorney that he would not be deported as a result of the plea. Defendant's papers were sufficient to raise a question whether defendant was afforded effective assistance of counsel under the federal standard (which is explained in the decision). The court noted that the claim defendant was not informed of the risk of deportation at sentencing was properly rejected because there was a sufficient record to have raised that argument on appeal:

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Under the federal standard for asserting a claim of ineffective assistance of counsel, a defendant "must show that counsel's representation fell below an objective standard of reasonableness" and "that the deficient performance prejudiced the defense" ... . Although Padilla v Kentucky (559 US 356) is inapplicable to this case because the defendant's conviction became final before Padilla was decided  ... , even prior to Padilla, the Court of Appeals had held that "inaccurate advice about a guilty plea's immigration consequences" fell below an objective standard of reasonableness, so as to satisfy the first prong of the standard set forth in Strickland [466 US 668].

Here, the defendant alleged that his counsel incorrectly advised him that he would not be subject to deportation as a consequence of his plea of guilty to reckless endangerment in the first degree. The defendant affirmed that he was initially offered a plea agreement that included a period of incarceration and carried the risk of deportation and, in consultation with his counsel, the defendant rejected that plea offer because of the deportation risks. It was only after a second plea offer was made, for a length of probation conditioned upon the successful completion of a program, along with the representation that such a plea would not result in the defendant's deportation, that the defendant chose to plead guilty. ...

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In addition to demonstrating that defense counsel's performance was deficient, a defendant making a federal constitutional claim must also show, in order to satisfy the second prong of the Strickland standard, that there was " a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial'" ... .

Here, the defendant's affidavit raised sufficient questions of fact as to whether it was reasonably probable that he would not have pleaded guilty had he been correctly advised as to the deportation consequences of the plea, given the fact that the defendant had already once rejected a plea offer that was objectively favorable to him, in favor of going to trial, because of the risk of deportation, and based upon his specific affirmation that, had he known the risk of deportation, he would not have pleaded guilty ... . People v Malik, 2018 NY Slip Op 07452, Second Dept 11-7-18

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CRIMINAL LAW (DEFENDANT'S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, THE PAPERS SUFFICIENTLY RAISED THE QUESTION WHETHER DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF THE PLEA AND WHETHER THAT FAILURE AMOUNTED TO INEFFECTIVE ASSISTANCE UNDER THE FEDERAL STANDARD, THE ARGUMENT THAT THE COURT FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES WAS REJECTED BECAUSE THERE WAS A SUFFICIENT RECORD TO HAVE RAISED THAT ARGUMENT ON APPEAL (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT'S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, THE PAPERS SUFFICIENTLY RAISED THE QUESTION WHETHER DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF THE PLEA AND WHETHER THAT FAILURE AMOUNTED TO INEFFECTIVE ASSISTANCE UNDER THE FEDERAL STANDARD, THE ARGUMENT THAT THE COURT FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES WAS REJECTED BECAUSE THERE WAS A SUFFICIENT RECORD TO HAVE RAISED THAT ARGUMENT ON APPEAL (SECOND DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT'S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, THE PAPERS SUFFICIENTLY RAISED THE QUESTION WHETHER DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF THE PLEA AND WHETHER THAT FAILURE AMOUNTED TO INEFFECTIVE ASSISTANCE UNDER THE FEDERAL STANDARD, THE ARGUMENT THAT THE COURT FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES WAS REJECTED BECAUSE THERE WAS A SUFFICIENT RECORD TO HAVE RAISED THAT ARGUMENT ON APPEAL (SECOND DEPT))/IMMIGRATION LAW (CRIMINAL LAW, (DEFENDANT'S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, THE PAPERS SUFFICIENTLY RAISED THE QUESTION WHETHER DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF THE PLEA AND WHETHER THAT FAILURE AMOUNTED TO INEFFECTIVE ASSISTANCE UNDER THE FEDERAL STANDARD, THE ARGUMENT THAT THE COURT FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES WAS REJECTED BECAUSE THERE WAS A SUFFICIENT RECORD TO HAVE RAISED THAT ARGUMENT ON APPEAL (SECOND DEPT))/DEPORTATION (CRIMINAL LAW, (DEFENDANT'S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, THE PAPERS SUFFICIENTLY RAISED THE QUESTION WHETHER DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF THE PLEA AND WHETHER THAT FAILURE AMOUNTED TO INEFFECTIVE ASSISTANCE UNDER THE FEDERAL STANDARD, THE ARGUMENT THAT THE COURT FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES WAS REJECTED BECAUSE THERE WAS A SUFFICIENT RECORD TO HAVE RAISED THAT ARGUMENT ON APPEAL (SECOND DEPT))/VACATE CONVICTION, MOTION TO  (DEFENDANT'S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, THE PAPERS SUFFICIENTLY RAISED THE QUESTION WHETHER DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF THE PLEA AND WHETHER THAT FAILURE AMOUNTED TO INEFFECTIVE ASSISTANCE UNDER THE FEDERAL STANDARD, THE ARGUMENT THAT THE COURT FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES WAS REJECTED BECAUSE THERE WAS A SUFFICIENT RECORD TO HAVE RAISED THAT ARGUMENT ON APPEAL (SECOND DEPT))

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CRIMINAL LAW, EVIDENCE.

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AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN'S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT).

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The Fourth Department determined the vehicle stop could not be justified on the ground that the stop was made by a peace officer, and also could not be justified on the ground the stop was a citizen's arrest. Therefore the motion to suppress the firearm found in the car was properly granted. The vehicle stop was made by an agent with the US Customs and Border Protection Air and Marine Operations after the agent became concerned about the driver's dangerous operation. The agent called the Buffalo Police Department and pulled the car over using his truck's emergency lights. A police officer arrived and the officer and the agent approached the car together:

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In concluding that the agent unlawfully stopped the vehicle, the [motion] court determined that the agent had the powers of a peace officer, but that the traffic stop could not be justified on that basis because the agent was not acting pursuant to his special duties or within his geographical area of employment. The court also determined that the traffic stop could not be justified as a valid citizen's arrest because the agent, who had the powers of a peace officer, activated the emergency lights and approached the stopped vehicle with the BPD officer and therefore acted under color of law and with the accouterments of official authority rather than as a private citizen. ...

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A private person, however, is not authorized to display such emergency lights from his or her private vehicle... . Moreover, a private person may not falsely express by words or actions that he or she is acting with approval or authority of a public agency or department with the intent to induce another to submit to such pretended official authority or to otherwise cause another to act in reliance upon that pretense ... . Thus, the agent was not lawfully acting merely as a private person effectuating a citizen's arrest when he activated emergency lights that were affixed to his truck by virtue of his position in law enforcement. ...

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Even if a violation of the citizen's arrest statute is not necessarily a violation of a constitutional right, we conclude that adherence to the requirements of the statute implicates the constitutional right to be free from unreasonable searches and seizures ... by precluding a person who "act[ed] under color of law and with all the accouterments of official authority" from justifying an unlawful search or seizure as a citizen's arrest ... , and that suppression is warranted where, as here, the purported private person is cloaked with official authority and acts with the participation and knowledge of the police in furtherance of a law enforcement objective ... . People v Page, 2018 NY Slip Op 07552, Fourth Dept 11-9-18

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CRIMINAL LAW (SUPPRESSION, PEACE OFFICER, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN'S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN'S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/PEACE OFFICER (VEHICLE STOP, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN'S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/CITIZEN'S ARREST (VEHICLE STOP, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN'S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/VEHICLE STOPS (PEACE OFFICER, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN'S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/TRAFFIC STOPS (PEACE OFFICER, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN'S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/STREET STOPS (PEACE OFFICER, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN'S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))

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CRIMINAL LAW, EVIDENCE.

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POLICE OFFICER'S SENDING A TEXT TO DEFENDANT'S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT'S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT'S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT).

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The Fourth Department determined the ruling by the US Supreme Court in Riley v California (124 S Ct 2473) did not provide grounds for defendant's second and untimely motion to suppress evidence seized from a search of his cell phone pursuant to a warrant. Before applying for the warrant, at the time of arrest, a police officer sent a text to a phone number used in communications between the victim and defendant and noted that a text message arrived on defendant's phone shortly thereafter. The Fourth Department held that sending the text and observing the arrival of a text did not violate Riley:

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The Riley Court determined that "officers must generally secure a warrant before conducting [a search of data stored in a cell phone]" ... . Here, the search warrant application for defendant's phone indicates, among other things, that, after defendant's arrest and the recovery of a cell phone from him during a search incident to the arrest, the applicant officer sent a text message to the phone number that had been used during earlier communications between the victim and defendant, and the officer noted that the phone recovered from defendant upon his arrest signaled the arrival of a new text message moments later. Contrary to defendant's contention, however, nothing in the warrant application supports the inference that the police opened or manipulated the phone to get inside to retrieve data prior to obtaining the search warrant. Although Riley prohibits warrantless searches of cell phones incident to a defendant's arrest, Riley does not prohibit officers from sending text messages to a defendant, making observations of a defendant's cell phone, or even manipulating the phone to some extent upon a defendant's arrest ...  Indeed, Riley provides that the search incident to arrest exception to the warrant requirement entitles law enforcement officers to "examine the physical aspects of the phone" after it has been seized ... . Inasmuch as the information included in the warrant application is not suggestive of a warrantless search of the phone, we conclude that the Supreme Court's decision in Riley did not provide good cause for defendant's untimely second suppression motion. Thus, the motion was properly denied ... 

Moreover, even if the officer's actions in sending a confirmatory text message to defendant's phone did constitute an unlawful search under Riley, we nevertheless conclude that the validity of the warrant to search defendant's phone was not vitiated. The police did not use the alleged illegal search " to assure themselves that there [was] cause to obtain a warrant' in the first instance" ... , and the remaining factual allegations in the warrant application provided probable cause to search the cell phone that was recovered from defendant at the time of his arrest. People v Hackett, 2018 NY Slip Op 07557, Fourth Dept 11-9-18

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CRIMINAL LAW (POLICE OFFICER'S SENDING A TEXT TO DEFENDANT'S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT'S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT'S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, CELL PHONES, POLICE OFFICER'S SENDING A TEXT TO DEFENDANT'S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT'S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT'S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/SUPPRESSION (CELL PHONES, POLICE OFFICER'S SENDING A TEXT TO DEFENDANT'S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT'S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT'S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/SEARCH AND SEIZURE (CELL PHONES, POLICE OFFICER'S SENDING A TEXT TO DEFENDANT'S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT'S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT'S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/CELL PHONES (CRIMINAL LAW, SEARCH AND SEIZURE, POLICE OFFICER'S SENDING A TEXT TO DEFENDANT'S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT'S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT'S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))

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CRIMINAL LAW, SEX OFFENDER REGISTRATION ACT (SORA), ATTORNEYS, APPEALS, CORRECTION LAW.

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DEFENSE COUNSEL WROTE A LETTER TO THE COURT STATING THAT DEFENDANT'S PETITION FOR A DOWNWARD MODIFICATION OF HIS SORA RISK LEVEL LACKED MERIT, WHICH CONSTITUTED INEFFECTIVE ASSISTANCE, APPEAL OF THE DENIAL OF THE PETITION IS PURSUANT TO CPLR 5701, NOT CPL 450.10, THE CORRECTION LAW ALLOWS SUCH A PETITION ONCE A YEAR (FOURTH DEPT).

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The Fourth Department, reversing County Court, determined that defendant was entitled to a hearing on his petition seeking a downward modification of his level three Sex Offender Registration Act (SORA) status because defense counsel wrote a letter to the court stating the petition did not have merit. Defendant was not afforded effective assistance of counsel. The Fourth Department noted that an appeal from the denial of a modification petition is pursuant to CPLR 5701, not CPL 450.10:

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We agree with defendant that he was denied effective assistance of counsel, and we therefore reverse the order, reinstate the petition, and remit the matter to County Court for a new hearing on the petition. Defendant contended in the petition, among other things, that he was entitled to a downward modification of his risk level classification. His assigned counsel, however, wrote a letter to the court indicating that the petition lacked merit, counsel would not support the petition, and he had advised defendant to withdraw the petition so that defendant would not needlessly delay his right to file a new modification petition in two years. We conclude that defense counsel "essentially[] became a witness against [defendant] and took a position adverse to him," which denied defendant effective assistance of counsel ... . In addition, a defendant may commence a Correction Law § 168-o (2) proceeding no more than once annually ... , thus defense counsel's advice was incorrect as well as adverse to defendant's position. People v Griffith, 2018 NY Slip Op 07579, Fourth Dept 11-9-18

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CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, DEFENSE COUNSEL WROTE A LETTER TO THE COURT STATING THAT DEFENDANT'S PETITION FOR A DOWNWARD MODIFICATION OF HIS SORA RISK LEVEL LACKED MERIT, WHICH CONSTITUTED INEFFECTIVE ASSISTANCE, APPEAL OF THE DENIAL OF THE PETITION IS PURSUANT TO CPLR 5701, NOT CPL 450.10, THE CORRECTION LAW ALLOWS SUCH A PETITION ONCE A YEAR (FOURTH DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENSE COUNSEL WROTE A LETTER TO THE COURT STATING THAT DEFENDANT'S PETITION FOR A DOWNWARD MODIFICATION OF HIS SORA RISK LEVEL LACKED MERIT, WHICH CONSTITUTED INEFFECTIVE ASSISTANCE, APPEAL OF THE DENIAL OF THE PETITION IS PURSUANT TO CPLR 5701, NOT CPL 450.10, THE CORRECTION LAW ALLOWS SUCH A PETITION ONCE A YEAR (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL WROTE A LETTER TO THE COURT STATING THAT DEFENDANT'S PETITION FOR A DOWNWARD MODIFICATION OF HIS SORA RISK LEVEL LACKED MERIT, WHICH CONSTITUTED INEFFECTIVE ASSISTANCE, APPEAL OF THE DENIAL OF THE PETITION IS PURSUANT TO CPLR 5701, NOT CPL 450.10, THE CORRECTION LAW ALLOWS SUCH A PETITION ONCE A YEAR (FOURTH DEPT))/INEFFECTIVE ASSISTANCE (SEX OFFENDER REGISTRATION ACT, DEFENSE COUNSEL WROTE A LETTER TO THE COURT STATING THAT DEFENDANT'S PETITION FOR A DOWNWARD MODIFICATION OF HIS SORA RISK LEVEL LACKED MERIT, WHICH CONSTITUTED INEFFECTIVE ASSISTANCE, APPEAL OF THE DENIAL OF THE PETITION IS PURSUANT TO CPLR 5701, NOT CPL 450.10, THE CORRECTION LAW ALLOWS SUCH A PETITION ONCE A YEAR (FOURTH DEPT))/APPEALS (SEX OFFENDER REGISTRATION ACT, DEFENSE COUNSEL WROTE A LETTER TO THE COURT STATING THAT DEFENDANT'S PETITION FOR A DOWNWARD MODIFICATION OF HIS SORA RISK LEVEL LACKED MERIT, WHICH CONSTITUTED INEFFECTIVE ASSISTANCE, APPEAL OF THE DENIAL OF THE PETITION IS PURSUANT TO CPLR 5701, NOT CPL 450.10, THE CORRECTION LAW ALLOWS SUCH A PETITION ONCE A YEAR (FOURTH DEPT))/CORRECTION LAW (SEX OFFENDER REGISTRATION ACT, DEFENSE COUNSEL WROTE A LETTER TO THE COURT STATING THAT DEFENDANT'S PETITION FOR A DOWNWARD MODIFICATION OF HIS SORA RISK LEVEL LACKED MERIT, WHICH CONSTITUTED INEFFECTIVE ASSISTANCE, APPEAL OF THE DENIAL OF THE PETITION IS PURSUANT TO CPLR 5701, NOT CPL 450.10, THE CORRECTION LAW ALLOWS SUCH A PETITION ONCE A YEAR (FOURTH DEPT))

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