Ed Sapone’s DECISIONS OF THE WEEK -July 5, 2019

by | Jul 5, 2019 | Ed Sapone’s Decisions of the Week

With the Supreme Court and the New York Court of Appeals having decided all pending appeals until the fall, this was a relatively quiet holiday week. The NY appellate divisions, however, reversed or remanded a decent number of cases in favor of appellate defendants.

Second Circuit

On Tuesday, in United States v. Brennan, the Circuit, decided an interlocutory appeal of an order committing defendant to the custody of the Attorney General for psychiatric treatment and evaluation. The Circuit affirmed the WDNY’s order, finding that, even though a court-ordered psychiatric evaluation found that defendant was not competent to stand trial and his disorder was degenerative and unlikely to improve even with treatment, it was up to the district court, not a forensic psychologist, to determine whether defendant would regain competency in the foreseeable future.

Defendant is required to register as a sex offender for life following his 2014 conviction for lewd molestation of an elderly or disabled person in the third degree. Defendant, who is homeless and mentally ill, was found on a sidewalk outside a strip mall disoriented and covered in excrement. When a check by the police revealed that he was required to register as a sex offender but had failed to do so, he was charged with failing to register. Defendant’s federal defender reported that defendant’s mental limitations prohibited him from assisting in his own defense. The district court ordered a competency evaluation as well as an evaluation of whether defendant was insane at the time of the offense.

The appointed forensic psychologist found that defendant was incompetent, and that his mental defect had impaired his ability to appreciate the wrongfulness of his charged conduct. The psychologist also concluded that defendant’s prognosis was poor, his disorder was degenerative, and that it was “highly unlikely” that medication would improve his functioning.

The magistrate determined that defendant was not competent to stand trial and that 18 U.S.C. § 4241(d) mandated that he commit defendant to the custody of the Attorney General

to determine his future competency to stand trial. The magistrate ordered defendant committed “for such a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future the defendant will attain the capacity to permit the proceedings to go forward.” Defendant appealed the magistrate’s order to the district judge, who affirmed the order, concluding that while “the evidence in this case does suggest a relatively low probability that Defendant can be restored to competency,” the court was nonetheless compelled under 18 U.S.C. § 4241(d) to commit Brennan to the custody of the Attorney General. The district court did not set a firm outer limit on the length of commitment.

The Circuit affirmed. Before a defendant can be considered permanently incompetent, a court must determine “whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the [criminal] proceedings to go forward” following a mandatory commitment as outlined in 18 U.S.C. § 4241(d). Neither the magistrate judge nor the district court made such a finding here. Only after the mandatory competency evaluation takes place may the district court determine that defendant’s mental condition has not so improved as to permit the proceedings to go forward. The commitment order allows for a more thorough evaluation of defendant’s ability to regain competency than the preliminary examination. Because the commitment period is limited to a “reasonable period of time … necessary” to evaluate future competency, it meets constitutional standards.

The Circuit’s decision can be found here.

On Wednesday, in United States v. Carrasco, in a summary order, the Circuit remanded defendant’s EDNY conviction before Judge Joseph F. Bianco, for willfully signing a false tax return under penalty of perjury, concluding that defendant was entitled to an opportunity to establish that his counsel was ineffective because he failed to warn him that a guilty plea would subject him to mandatory deportation.

Both defendant and counsel submitted affidavits stating that counsel did not inform defendant that his conviction would subject him to mandatory deportation. Strickland/Padilla requires not merely a showing of inadequate advice, but a reasonable probability that, had defendant been adequately advised, he would not have pleaded guilty. Defendant pointed to his own and counsel’s affidavits stating that defendant was “particularly concerned” about the effect of his plea on his immigration status, and his history in the United States, including his family circumstances and gainful employment. The Circuit remanded for an evidentiary hearing .

The Circuit’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Dimon, AD2 reversed defendant’s Suffolk County criminal mischief conviction, finding that county court should have afforded defendant a hearing to resolve the question of whether she violated the terms of her plea agreement.

Defendant pleaded guilty in exchange for a promise that she would be placed in a Mental Health Court program. If defendant successfully completed the program, her convictions would be reduced to a disorderly conduct, and she would be sentenced to a conditional discharge. She was warned that, if she failed to complete the program, she would be sentenced to a one-year term of imprisonment. At the sentencing, the court sentenced defendant to one year based on the prosecutor’s representation that the defendant had not completed the program. AD2 found that the court erred by failing to conduct an adequate inquiry into whether defendant had violated the plea agreement, i.e., whether she’d completed the program.

AD2’s decision can be found here.

In People v. Wright, AD2 reversed defendant’s Dutchess County conviction for failure to register as a sex offender. AD2 found that his guilty plea was invalid because his factual allocution during the plea proceeding negated an essential element of the offense charged, which cast significant doubt upon his guilt. The defendant stated that he provided DOCCS with the address of a homeless shelter that he was using, but acknowledged that there were some nights when he could not stay in the shelter. He explained “sometimes if you don’t get there in time all the beds are taken, so sometimes you get turned away.” On those days, the defendant asserted, he stayed at a friend’s house instead. These statements tended to demonstrate that the defendant had not improperly failed to notify DOCCS that he’d changed his address.

AD2’s decision can be found here.

Appellate Division, Third Department

On Wednesday, in People v. Daniels, AD3 reversed defendant’s Schenectady County first-degree assault conviction in the interest of justice, extending AD1’s Velez rule (131 A.D.3d 129) that, when a court instructs on justification, it is error if it fails to also instruct that if the jury finds defendant not guilty of a greater charge on the basis of justification, it must not consider any lesser counts to which the justification defense applies. Here, the jury acquitted of attempted murder, but the court did not instruct the jury that, if it acquitted because it found defendant justified, it was not to consider the assault charge. We have previously reported on the multiple reversals in the First and Second Departments on this issue. Because those rulings have all been in the interest of justice, following jury instructions to which counsel failed to object, they are unreviewable by the Court of Appeals.

AD3’s decision can be found here.

In People v. Johnson, AD3 remanded defendant’s Sullivan County predatory sexual assault against a child conviction, finding that an evidentiary hearing was needed to resolve the question of whether the court had complied with its obligations under O’Rama relating to its obligations to relay the contents of jury notes to counsel before answering them to the jury. Because the record did not establish whether a note found in the court file had ever been received by the court before the jury reached a verdict, a hearing was needed to “assess the circumstances pertaining to the events at trial during the jury’s deliberations and the acceptance of its verdict, including the transmission, receipt, marking and communication to the court of all three notes.”

AD3’s decision can be found here.

In People v. Saxe, AD3 reversed defendant’s Cortland County criminal sexual act in the first degree conviction. AD3 found that it was error to allow the People to introduce evidence during their case-in-chief of defendant’s alleged prior sexual contact with two female relatives. The prior victims’ testimony was not necessary to “complete the narrative as to how and why” the current victim’s disclosure occurred, and was not sufficiently similar (modus operandi or common scheme or plan) to the incident underlying the current charges to be admissible under Molineaux.

AD3’s decision can be found here.

Appellate Division, Fourth Department

On Friday, in People v. Richardson, AD4 modified defendant’s Monroe County first degree robbery and burglary convictions by vacating that part of the sentence that imposed restitution, because the plea bargain did not include restitution, and the court erred by imposing it without first affording defendant the opportunity to withdraw his guilty plea.

AD4’s decision can be found here.

In People v. Massey, AD4 held defendant’s Erie County second-degree murder conviction in abeyance, and remitted to supreme court for it to render a decision on defendant’s Dunaway motion. In a pro se supplemental brief, defendant contended that the court erred in refusing to suppress the statements in question because they were the fruit of an illegal arrest. At the start of the suppression hearing, the court had directed the prosecution to conduct a combined Huntley and Dunaway hearing, and the prosecutor introduced evidence concerning the circumstances under which defendant was taken into custody. Although the court refused to suppress defendant’s statements, the court did not

address the legality of defendant’s detention or arrest. Without a ruling, AD4 was jurisdictionally precluded from assessing the legality of the detention or arrest.

AD4’s decision can be found here.

In People v. Bloodworth, AD4 reversed defendant’s Onondaga County first-degree robbery conviction, finding that defendant was denied his right to effective assistance of counsel because counsel failed to adequately assert a meritorious CPL § 30.30 claim. Although defense counsel made a speedy trial claim, there was no strategic or legitimate explanation for defense counsel’s failure to alert the court that it had inaccurately calculated that only five months and seven days had passed between the commencement of the action and the People’s statement of readiness when, in actuality, more than six months had elapsed. Defendant’s guilty plea was tainted by IAC and that IAC claim survived the guilty plea.

AD4’s decision can be found here.

In People v. Thomas, AD4 held defendant’s Niagara County weapons possession conviction in abeyance, and remanded for county court to resolve defendant’s motion to dismiss the indictment on the grounds that the grand jury proceedings were defective.

In a prior appeal, AD4 held that an enhanced sentence had been improperly imposed and vacated the sentence and remitted the matter to County Court to impose the promised sentence or to afford defendant the opportunity to withdraw his guilty plea. Defendant withdrew his plea and moved to dismiss the indictment on the ground that the grand jury proceedings were defective. He argued that certain instructions “should be given careful consideration,” including burden of proof, legally sufficient evidence, reasonable cause and the term “possess.” Because the record contained nothing showing how that motion was resolved, AD4 remitted for county court to decided the motion.

AD4’s decision can be found here.

Ninth Circuit

The Ninth Circuit published an interesting decision that finally put to rest a long-standing dispute in a remote suburb of Seattle.

The City of Everett, Washington had complained for years that a local coffee chain should be required to put some clothes on its female baristas who served its patrons in bikini bathing suits and other skimpy clothing. After the good folk of Everett had created enough of a stir, the City finally passed local ordinances that required a dress code and expanded a lewdness statute.

The case landed in the U.S. District Court where the coffee chain owner and the baristas raised First and Fourteenth Amendment claims and argued that the women were promoting female empowerment and a confident body image. The City argued that the dress code led to prostitution and subjected the baristas to victimization by patrons.

The District Court sided with the baristas and issued an injunction against the City, finding that the dress code ordinance is vague: Regarding a woman’s clothing, how little is too little?

The Circuit vacated the injunction and remanded the case, shooting down the District Court’s vagueness finding and concluding that the baristas’ manner of dress was not “sufficiently communicative to merit First Amendment protection.”

Federal appeals court rules against ‘bikini baristas’ Read in CNN: https://apple.news/AUWH6DG23T56bI9-uep1WuQ