DECISIONS OF THE WEEK ENDED JULY 24, 2020

| Jul 24, 2020 | Ed Sapone’s Decisions of the Week

This was an unusually busy week in CA2, with six precedential opinions in criminal cases. Most interesting among them was United States v. Solano, in which the Circuit reversed as plain error an instruction that threw defendant under the bus relative to his interest in the outcome of the case. The jury was told that defendant’s interest in the outcome of the case gave him a motive to testify falsely.

In the state courts, AD4 was also unusually busy with seven reversals.

Second Circuit

On Friday, in United States v. Trafficante, CA2 affirmed defendant’s WDNY conviction for cyberstalking and distribution of a controlled substance (an odd couple of charges). CA2 rejected defendant’s contention that the 48-month above-guidelines sentence was unreasonable, and that his challenge to a “notification of risk” supervised-release condition was moot, because WDNY’s standing order permissibly modified the condition that had been imposed.

Defendant repeatedly stalked and threatened his ex-girlfriend, a student at SUNY Geneseo. Defendant also mailed controlled substances, including cocaine and MDMA, to the victim without her knowledge (the odd couple of charges suddenly is less odd), after which he anonymously contacted university police to inform them of her possession of illegal narcotics. Defendant was arrested at his home, where law enforcement found a loaded AR-15 firearm, two airsoft rifles, ammunition, and shooting targets. Law enforcement also learned that defendant had engaged in similar threatening conduct toward another ex-girlfriend after their relationship ended.

Defendant pleaded guilty to a two-count information charging cyberstalking and distribution of cocaine. The parties stipulated in the plea agreement that the advisory Guidelines range was 30 to 37 months of imprisonment, based on an offense level of 19 and a criminal history category of I. Each party reserved the right to argue for a sentence outside the guidelines range and the right to relay to the court any information deemed relevant to a proper sentencing determination. At sentencing, the district court imposed an above-Guidelines sentence of 48 months, followed by a three-year term of supervised release. The district court described its sentence as both “a variance and also departure.” It stated that defendant’s extraordinary conduct warranted a variance as well as an increase in his criminal history category from I to III. The district court placed a number of conditions on defendant’s supervised release, including the once-standard risk condition that gave defendant’s Probation officer discretion both to determine whether he posed a risk to others and, if so, to require him to notify such persons about that risk.

On appeal, defendant argued that the district court erred when it increased his criminal history category from I to III based on related conduct and without adequate explanation, and that the risk condition was unlawful in light of CA2’s decision in United States v. Boles, 914 F.3d 95 (2019).

CA2 found that the district court’s variance from the Guidelines was not improper. The district court set forth its justification for a variance, explaining the factors to be considered under 18 U.S.C. § 3553(a) and concluding that this was an “atypical case” in which the conduct significantly differed from the norm such that the court could consider a variance. In particular, the district court relied on facts set forth in the PSR, to which defendant did not object. As the district court explained, the PSR explicitly described past criminal conduct in which defendant stalked a high school girlfriend and exhibited behavior substantially similar to the instant behavior, including posting her phone number to a prostitution website, sending her controlled substances without her knowledge and then notifying law enforcement, and hacking her social media accounts.

CA2 found that the court had adequately explained its reasons for the variance, including that the court emphasized the “horrendous” nature of the offense, and, in considering that the “[s]entence must reflect the seriousness of the offense,” explained that the offense was “about as serious as they get” and required “just punishment.” Further, the court detailed its view that the sentence should deter defendant as well as others from engaging in similar behavior, noting that defendant’s conduct continued “not for a day or two” but instead was “repeated, repeated conduct” that he chose not to stop.

Because the district court made it clear on the record and in the written statement of reasons that the above-Guidelines sentence was justified as both a variance and departure, CA2 found it unnecessary to address whether a departure was warranted pursuant to U.S.S.G. § 4A1.3 (criminal history category substantially under-represents seriousness of criminal history) and § 5K2.0 (outside heartland cases) of the guidelines.

CA2 found that the WDNY’s change to its standing order relating to risk conditions rendered the challenge moot, because it complied with Boles. Resentencing was not required because the standing order imposed no obligation on defendant. The standing order clarified that any obligation to notify at-risk individuals is wholly contingent on a subsequent determination by the district court that the supervisee poses a specific risk to such persons. Given the conditional nature of the revised condition, the standing order had no impact on defendant unless and until the district court made such a finding.

CA2’s decision can be found here.

On Monday, in United States v. Atilla, CA2 affirmed defendant’s SDNY convictions for conspiracy to defraud the U.S. Government, conspiracy to violate the International Emergency Economic Power Act (IEEPA), bank fraud, and money laundering in connection with a scheme to evade U.S. economic sanctions on Iran. Defendant was convicted after a jury trial before Judge Richard M. Berman.

CA2 rejected defendant’s contention, among others, that the court’s jury instructions relating to the IEEPA statute were erroneous.

Defendant is a Turkish national and former Deputy General Manager of Turkey’s state-owned bank, Türkiye Halk Bankaşi, A.S. (“Halkbank”). CA2 found that the evidence at trial established that defendant agreed with others to evade US economic sanctions against Iran by laundering out of Halkbank billions of dollars’ worth of Iranian oil proceeds. As Deputy General Manager of Halkbank, defendant oversaw the bank’s international corporate finance efforts and was responsible for the bank’s relationships with US correspondent banks, Iranian banks, and the Central Bank of Iran (CBI). At that time, Halkbank held accounts for the CBI and Iran’s government-owned petroleum company, the National Iranian Oil Company (NIOC). As part of the scheme, defendant worked with others to help Halkbank’s customers steer billions of dollars in financing to the Government of Iran by disguising NIOC’s oil funds as permissible private trade and humanitarian assistance. Defendant also repeatedly lied to senior U.S. Treasury Department officials to hide the scheme and to protect Halkbank from the imposition of U.S. sanctions.

Defendant’s principal contention on appeal was that the district court erroneously instructed the jury that it could “convict [him] of conspiring to violate [the] IEEPA based on the theory that he conspired to evade or avoid the imposition of secondary sanctions” – restrictions on accessing the US financial system imposed on foreigners whom the Secretary of the Treasury determines have done business with Iran. According to Atilla, the court’s instruction conflicted “with the longstanding position of the agency charged with sanctions administration, the plain language of [the] IEEPA and the regulatory provisions at issue, the presumption against extraterritoriality, the rule of lenity, and the Due Process Clause.” His core assertion was that “[t]he relevant provisions only forbid transactions that evade or avoid existing ‘prohibitions’ already imposed on a foreign financial institution’s ability to open or maintain U.S. accounts,” not “efforts to evade or avoid the imposition of secondary sanctions.”

CA2 agreed that the instruction was wrong. Based on their plain language, the IEEPA, the regulations, and the executive orders at issue do not make it unlawful for an individual to conspire to evade or avoid the prospective imposition of prohibitions. The government’s theory of liability rested on the premise that a person violates a “license, order, regulation, or prohibition issued under” the IEEPA by evading or avoiding the imposition of secondary sanctions. But the text of the relevant statutes, regulations, and executive orders does not prohibit conduct merely because it could provide a basis for prohibitions in the future.

But CA2 found the error harmless. There was “little doubt” that the jury necessarily found defendant guilty on a different properly instructed theory of liability, namely, that defendant conspired to violate IEEPA by exporting services (including the execution of US dollar transfers) from the US to Iran in violation of the Iranian Transactions and Sanctions Regulations.

CA2’s decision can be found here.

On Wednesday, in United States v. Diaz, CA2 affirmed defendant’s SDNY conviction, following a jury trial before Judge Valerie E. Caproni, for failing to register as a sex offender under SORNA. CA2 found that defendant could not collaterally attack his predicate conviction, and rejected defendant’s contention that the SORNA statute was unconstitutional.

Defendant, then a chief petty officer in the U.S. Navy, was convicted by court-martial of three counts of rape and two counts of indecent acts. He was sentenced to nine years of imprisonment and a dishonorable discharge. He pursued several challenges to his convictions, all unsuccessfully. Following his release from prison, defendant registered as a sex offender in New York. He thereafter moved from New York to New Jersey and Virginia but did not register in the latter two states. After he was indicted for failing to register, he moved to dismiss the indictment, arguing that his predicate sex-offender conviction was obtained in violation of the Constitution and that SORNA was unconstitutional. The district court denied the motion, and defendant was convicted after a jury trial.

CA2 agreed that defendant could not collaterally challenge the predicate conviction in a subsequent proceeding. SORNA is similar in structure to other statutes that the Supreme Court has held do not authorize collateral attacks of predicate convictions. See Custis v. United States, 511 U.S. 485, 497 (1994) (holding that defendant may not collaterally attack prior conviction used to enhance sentence under the Armed Career Criminal Act, because the statute does not explicitly permit such challenges); Lewis v. United States, 445 U.S. 55, 67 (1980) (finding that felon-in-possession statute did not permit defendant to contest felony conviction in subsequent firearms prosecution, because the statute “focus[es] not on reliability, but on the mere fact of conviction” as an element of the firearms offense). SORNA requires the fact of a sex offender conviction as an element of the registration offense, and lacks explicit terms authorizing a defendant to challenge the predicate conviction. Permitting him to attack his prior conviction would provide him an opportunity for judicial review not available to those who abide by SORNA’s requirements.

CA2 also rejected defendant’s contentions that SORNA violated the Eighth and Fifth Amendments. It did not impose upon defendant cruel and unusual punishment and did not violate double jeopardy on the grounds that it imposed a second punishment for the same criminal conduct. CA2 had held in Doe v. Pataki that the mandatory registration and notification requirements of New York State’s Sex Offender Registration Act, which are analogous to SORNA’s requirements, are non-punitive in purpose and effect. See 120 F.3d 1263, 1285 (2d Cir. 1997), as amended on denial of reh’g (Sept. 25, 1997) (rejecting the argument that the New York statute violates the Fifth Amendment’s Ex Post Facto Clause). The Supreme Court reached the same conclusion in its review of an Ex Post Facto challenge to Alaska’s Sex Offender Registration Act. See Smith v. Doe, 538 U.S. 84, 105 (2003). CA2’s precedent precludes the argument that sex offender registration and notification requirements are punitive, see Pataki, 120 F.3d at 1285, and the Supreme Court’s similar conclusion in Smith v. Doe foreclosed CA2’s ability to revisit the Pataki decision, 538 U.S. at 105.

CA2’s decision can be found here.

In United States v. Solano, CA2 reversed defendant’s EDNY attempted possession of cocaine with intent to distribute conviction, following a jury trial before Judge LaShann DeArcy Hall, agreeing with defendant that the court erred when it instructed that any witness with “an interest in the outcome” of the trial had “a motive . . . to testify falsely.”

Defendant testified on his own behalf and denied that he’d knowingly possessed or attempted to possess cocaine. Prior to the end of the trial, the district court informed the parties of the substantive aspects of its proposed instructions, and stated generally that it would “include a charge about the defendant testifying;” but there was no discussion of the content of that charge. Nor was there any discussion of language of a proposed charge that defendant had submitted before trial addressing his testimony.

On the final day of trial, without having given the parties the text of its planned procedural instructions, the court charged the jury in pertinent part as follows with respect to assessments of witness credibility:

[I]n evaluating the credibility of the witnesses, you should take into account evidence that the witness who testified may benefit in some[ ]way in the outcome of the case. Such an interest in the outcome creates a motive on the part of the witness to testify falsely, may sway the witness to testify in a way that advances his own interest. Therefore, if you find that any witness who’s [sic] testimony you are considering may have an interest in the outcome of this trial, then you should bear that factor in mind when evaluating the credibility of his or her testimony and accept it with great care.

On appeal, defendant contended, and CA2 agreed, that in the context of this trial, in which he testified, the court’s instructing the jury that “any witness who[] . . . ha[s] an interest in the outcome of this trial” has “a motive . . . to testify falsely” constituted plain error.

Based upon existing precedent—including, United States v. Gaines, 457 F.3d 238 (2d Cir. 2006); United States v. Brutus, 505 F.3d 80 (2d Cir. 2007); United States v. Mazza, 594 F. App’x 705 (2d Cir. 2014); and United States v. Mehta, 919 F.3d 175 (2d Cir. 2019)—CA2 found that the instruction, which indicated to the jury that defendant’s interest in the outcome gave him a motive to testify falsely was contrary to the presumption of innocence. District courts may not instruct juries that a testifying defendant’s personal interest in the outcome of a trial supplies a motive to lie.

Because the error was plain, centered squarely on the central issue in the case, which was a “serious” one, and affected the fairness, integrity, or public reputation of judicial proceedings, reversal was warranted.

CA2’s decision can be found here.

On Thursday, in United States v. Dussard, CA2 affirmed defendant’s SDNY conviction, following a guilty plea before Judge George B. Daniels, for conspiracy to commit Hobbs Act robbery, and possession of a firearm in furtherance of a narcotics conspiracy. CA2 rejected defendant’s contention, under the plain error standard, that he in fact pleaded guilty to possession of a firearm only in furtherance of a crime of violence; and that in light of the decisions in United States v. Davis, 139 S. Ct. 2319 (2019), and United States v. Barrett, 937 F.3d 126 (2d Cir. 2019), Hobbs Act conspiracy is not a § 924(c) predicate crime of violence.

CA2 found that the first two parts of plain-error analysis were “easily satisfied.” The government conceded, in light of Davis and Barrett, that defendant’s conviction on the basis of firearm possession during and in relation to a Hobbs Act conspiracy was error. Davis precluded a conclusion “that [a] Hobbs Act robbery conspiracy crime qualifies as a ‘ 924(c) crime of violence.” Barrett, 937 F.3d at 127. The fact that Davis had not been decided at the time defendant entered his plea was of no consequence; an error is “plain” within the meaning of Rule 52(b) if the error is established at the time of the appeal.

But CA2 found that the error did not affect defendant’s substantial rights. It concluded that defendant would have had little hope of being acquitted of a different count of the indictment, a drug-trafficking-conspiracy count, had he rejected the plea and gone to trial. The plea agreement as drafted avoided that exposure; and it could also have achieved the same result validly by making a simple reference to the narcotics conspiracy as a predicate drug trafficking crime in lieu of the reference to the Hobbs Act robbery conspiracy as a predicate crime of violence. The five-year mandatory minimum sentence provided in § 924(c)(1)(A)(i) applied to firearm possession “during and in relation to” either a “crime of violence or [a] drug trafficking crime” (emphasis added). The possession of a firearm in furtherance count of the Indictment alleged both of these predicates. The applicability of § 924(c)(1)(A)(i) “does not require the defendant to be convicted of (or even charged with) the predicate crime, so long as there is legally sufficient proof that the predicate crime was, in fact, committed.”

If defendant and the government had anticipated Davis making the predication on the Hobbs Act conspiracy invalid, they could have avoided the invalidity in defendant’s plea of guilty just by changing the two lines of the Agreement’s description that referred to a crime of violence and Hobbs Act conspiracy, to have that description refer instead to the allegation of firearm possession “during and in relation to a drug trafficking crime ….”

Because the error did not affect defendant’s substantial rights, it was not plain error.

CA2’s decision can be found here.

In United States v. Purcell, CA2 affirmed in part, and reversed in part, defendant’s SDNY convictions, following a jury trial before Judge Denise L. Cote, arising out of defendant’s operation of a prostitution business, and the 216-month sentence imposed. CA2 rejected defendant’s claim that his Facebook account had been searched in violation of the Fourth Amendment, but agreed with defendant that there was insufficient evidence of venue in SDNY to support his conviction for enticement to engage in unlawful sexual activity.

Defendant oversaw and operated a commercial sex business through which he recruited women from across the U.S. to work as prostitutes. Defendant contacted women, many of whom he did not know, and some of whom did not have prior experience with prostitution, through private messages on Facebook, Instagram, and dating applications such as Tinder. He requested their phone numbers and sometimes identified himself as a “pimp.” He also contacted women who were already working as prostitutes. He found them on Backpage, a website that advertises commercial sex to potential customers, and attempted to persuade those women to “choose up”—a term in the commercial sex industry for a prostitute’s selection of a pimp—with him. To help recruitment, defendant represented to some women that he would buy them houses or apartments if they worked for him. In other cases, he represented to women that by working for him they could make as much as $100,000 in less than one year.

At trial, the government relied extensively on evidence that had been seized from defendant’s Facebook account pursuant to warrants obtained by the New York County District Attorney’s Office. On appeal, defendant challenged two of those warrants on the grounds that they were insufficiently particularized. Addressing the most defective of the warrants, CA2 agreed that it was constitutionally defective, because it did not even specify the offense for which probable cause existed. CA2 nonetheless concluded that suppression was not warranted because the officers executing it had acted in good faith. The warrant’s clear facial defect—its omission of the specific offense for which probable cause existed—did not appear to have given rise to a less particularized search and seizure of evidence, CA2 held. The warrant set forth both the location to be searched and the items to be seized, leaving Facebook without room to exercise discretion in collecting responsive material. Because the warrant called for Facebook to turn over specified information without first culling the information itself, the scope of Facebook’s “search” and its identification of the items to be seized were not tethered to its cognizance of the suspected criminal conduct. The DANY obtained the same data from the Facebook account that it would have obtained if the warrant had complied with the Fourth Amendment’s particularity requirement by specifying the relevant offense.

CA2 held that, under the unusual circumstances presented by this warrant, neither the officers who “executed” the warrant by serving it on Facebook, nor the Facebook employees who searched the company’s digital files to identify, collect, and provide to the authorities the specified components of defendant’s account, had any particular reason to consult the warrant to notice whether it did or did not identify the crimes expected to be evidenced by the account. The warrant’s omission of that specification did not broaden or otherwise affect the scope of the search and seizure. In this context, the structure of the warrant rendered the specification of the suspected offense, while constitutionally indispensable, functionally unnecessary.

CA2, therefore, found that the good-faith exception applied.

CA2 agreed with defendant that there was improper venue as to one of the counts. Venue is proper only where the acts constituting the offense—the crime’s ‘essential conduct elements’—took place.” For the crime of enticement, venue lies both where the defendant enticed or attempted to entice the victim and where the objective of the enticement—in this case, the victim’s interstate travel for purposes of engaging in prostitution—ttranspired.

CA2 concluded that no reasonable jury could find, based on a preponderance of the evidence presented at trial, that defendant committed within SDNY any conduct essential to the offense of enticing any of the victims named in Count One to engage in prostitution, nor that any of the victims engaged in sex work or interstate travel for purposes of prostitution in that district (or even were recruited to do so in that district) as a result of defendant’s enticements.

CA2’s decision can be found here.

In United States v. Peralta, in a summary order, CA2 vacated the NDNY order that denied the government’s motion to remand defendant pending his sentencing, finding that the district court did not identify what “exceptional reasons” justified defendant’s release.

Defendant was convicted, following a jury trial, of conspiring to distribute and possess with intent to distribute a controlled substance, and possessing with intent to distribute 28 grams or more of cocaine base. Defendant was subject to detention under § 3143(a)(2), because he was convicted at trial of two offenses “for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act.” Section 3143(a)(2) requires the district court to order a defendant detained pending sentencing unless the judge finds: (1) a substantial likelihood that a motion for acquittal or a new trial will be granted, or (2) the government has recommended that no sentence be imposed, and the judge finds by clear and convincing evidence that the person is not likely to flee or pose a danger.

Where those limited conditions have not been met, a defendant “may nevertheless be released if (1) the district court finds that the conditions of release set forth in § 3143(a)(1) have been met, and (2) ‘it is clearly shown that there are exceptional reasons why [the defendant’s] detention would not be appropriate.'” “Exceptional reasons” exist under the second prong where there is “a unique combination of circumstances giving rise to situations that are out of the ordinary.”

Defendant argued on appeal only that his release was justified for exceptional reasons. Because the district court failed to make any findings on the record that would justify a finding of exceptional reasons, CA2 remanded for the district court to either explain what exceptional reasons existed or remand defendant pending sentencing.

You may recall the NYCBA CLE webinar of April 27, 2020, SDNY & EDNY Bail Applications During the Coronavirus Pandemic: Where Do We Stand As May Approaches?, in which we discussed utilizing the coronavirus pandemic as an exceptional reason under § 3143(a)(1).

CA2’s decision can be found here.

Appellate Division, Fourth Department

Last Friday, in People v. Snow, AD4 reversed defendant’s Monroe County third-degree robbery conviction, agreeing with defendant that Supreme Court erred by precluding him from calling a witness in his defense.

Defendant was charged with bank robbery. He sought to call a witness whose testimony related to the content of the note defendant presented to a bank employee. He specifically sought to establish that the note he presented contained language that did not threaten the immediate use of force, contrary to the testimony of the bank employee who received it. Although a threat of immediate use of force may be implicit and does not require the use of any specific words, the use of threatening language is a factor for the jury to consider when determining whether the defendant presented such a threat. Because the content of the note was relevant to whether defendant, either explicitly or implicitly, threatened the use of force, AD4 concluded that the proposed testimony pertained to a non-collateral issue and that the court should have allowed the proposed witness to testify.

AD4’s decision can be found here.

In People v. Mineccia, AD4 reversed the order of the Monroe County Court that had denied defendant’s CPL 440.10 motion to vacate his possession of a controlled substance conviction, finding that defendant’s waiver of his right to a jury trial which was made when he was the only participant in the waiver proceeding who was ignorant of the fact that his former prosecutor had become the trial judge’s court attorney, was not tendered “knowingly and understandingly” and was not “based on an intelligent, informed judgment.”

Unbeknownst to defendant, the prosecutor who appeared for more than six months on the People’s behalf during the preliminary proceedings in this case was subsequently appointed to serve as the trial court’s law clerk. When the law clerk brought that conflict to the trial court’s attention, the trial court screened the law clerk off from any participation in this case. When defendant sought to waive his right to a jury trial and to be tried by the court alone, however, the trial court failed to inform defendant that its law clerk had previously prosecuted defendant in this case. Although defense counsel was aware of the law clerk’s prior role as prosecutor, defense counsel failed to inform defendant of that fact. Defense counsel subsequently admitted that, had he recalled the fact that the prosecutor had become the trial court’s law clerk, he would have advised defendant to retain his right to a jury trial. Defendant testified at the post-trial hearing that he would not have waived his right to a jury trial had he been aware of the fact that his former prosecutor was now serving as the trial court’s law clerk.

AD4’s decision can be found here.

In People v. Hernandez, AD4 reversed defendant’s Monroe County attempted burglary conviction and vacated his guilty plea, finding that, during the plea, defendant’s factual recitation negated an element of the crime.

Defendant negated the “intent to commit a crime therein” element of burglary because his factual recitation contradicted any allegation that “he intended to commit a crime in the apartment other than his trespass.”

Criminal trespass in the second degree cannot, itself, be used as the sole predicate crime in the intent to commit a crime therein’ element of burglary. Rather than address this failing, the lower court stated, “I just want to make sure . . . [that] you still accept [the plea deal], because you have an absolute right to go to trial . . . I think you understand . . . [t]hat your defense of you going to the bathroom may be a difficult sell to a jury.”

AD4 found that, because that minimal inquiry by the court did not clarify the nature of the crime to ensure that the plea was intelligently entered, the court erred in accepting the guilty plea.

AD4’s decision can be found here.

In People v. Romeiser, AD4 reversed defendant’s Ontario County third-degree assault conviction, finding, without addressing any specific facts, that the evidence was not legally sufficient to show that defendant had acted recklessly, i.e., that she had perceived a substantial and unjustifiable risk of injury and that her conscious disregard of that risk constituted a gross deviation from the standard of conduct that a reasonable person would observe in that situation. Even though unpreserved, AD4 reached the sufficiency issue in the interest of justice.

AD4’s decision can be found here.

In People v. Cobb, AD4 reversed defendant’s Cayuga County promoting prison contraband conviction, finding that County Court erroneously denied a defense challenge for cause to a prospective juror.

The prospective juror gave “some indication of bias” by stating that her friendship with a prosecution witness “might” “affect [her] ability to be fair and impartial in this case” and that serving as a juror “might be awkward” in light of that friendship. The prospective juror did not give an unequivocal assurance of impartiality by stating, during follow-up questioning, that she would not feel compelled to “answer” to the witness for her verdict.

AD4 found that, a person could be unable to judge a case impartially while simultaneously being confident that he or she would not have to answer for the verdict to any other person. The prospective juror’s assurances that she would not feel compelled to answer to the witness for her verdict did not constitute the unequivocal assurance of impartiality required by law.

AD4’s decision can be found here.

This Friday, in People v. Watkins, AD4 vacated the sentence imposed following defendant’s Onondaga County conviction for rape in the first degree, finding that the persistent violent felony offender statement filed by the People was inadequate, because it did not allege tolling.

Penal Law 70.08 requires that, for enhanced sentences for persistent violent felony offenders, the prior convictions must have been no more than 10 years before the commission of the felony for which defendant stands convicted. In calculating that ten-year period, time spent incarcerated is excluded.

Here, because the predicate convictions occurred more than ten years before the charged offense, the People were required to establish tolling, by detailing the date of commencement and the date of termination as well as the place of imprisonment for each period of incarceration to be used for tolling of the ten-year limitation. Because they failed to do so, resentencing was required.

In People v. Lashley, the Court of Appeals is considering the question of whether the People’s failure to allege tolling in a predicate felony statement is an issue that must be preserved by timely objection. AD1 found that preservation was unnecessary. 178 AD3d 506. It is unclear from AD4’s decision whether Watkins’ counsel objected, or not.

AD4’s decision can be found here.

In People v. Hunt, AD4 reversed defendant’s Erie County second-degree weapon possession conviction, agreeing with defendant that the verdict was against the weight of the evidence.

The gun was recovered from a car in which defendant was a backseat passenger, inside a duffle bag, inside the trunk, at a border crossing. The People did not rely on the automobile presumption. It was undisputed that the driver owned the vehicle and that the duffle bag belonged to him as well. The People relied on evidence that defendant’s DNA profile matched that of the major contributor to DNA found on the handgun and that the driver was excluded as a contributor thereto. AD4 found that, although an inference could be made from that evidence that defendant had physically possessed the gun at some point in time, that evidence alone did not establish that defendant actually possessed the handgun on the date and at the time alleged in the indictment.

AD4’s decision can be found here.

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