Ed Sapone’s DECISIONS OF THE WEEK -June 20, 2019

| Jun 20, 2019 | Ed Sapone’s Decisions of the Week

Decisions of the Week Ended June 20, 2019

There were no dispositive decisions in criminal cases from the Circuit this week. The Supreme Court continued to resolve the remaining cases on its 2018 docket. There were a number of interesting New York State appellate reversals this week, particularly from the upstate departments.

Supreme Court of the United States

On Monday, in Gamble v. United States, in a 7-3 decision and majority opinion authored by Justice Alito, the Court affirmed the decision of the Eleventh Circuit. SCOTUS declined to overturn longstanding double jeopardy precedent allowing, under the dual-sovereignty doctrine, separate prosecutions of criminal conduct by both state and federal authorities.

Defendant was charged by Alabama authorities for unlawfully possessing a loaded 9-mm handgun. Because defendant had suffered a robbery conviction, his possession violated Alabama law forbidding possession of a firearm by those previously convicted of a crime of violence. Defendant thereafter pleaded guilty to the state offense. After he was convicted in state court, federal prosecutors indicted him for the same instance of possession under a federal law that forbid those convicted of “a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition.” 18 U. S. C. §922(g)(1).

Defendant moved to dismiss the federal charge on the ground that it was the “same offense” as the one at issue in his state conviction and therefore subjected him to double jeopardy. The court denied the motion, defendant pleaded guilty, and the Eleventh Circuit affirmed.

The Supreme Court declined to revisit longstanding double jeopardy law. As Alito described it, the “separate sovereigns” doctrine is not an exception to the double jeopardy clause, but part of the clause itself. The Clause bars successive prosecutions for the same offense, not for the same conduct. Because the state and federal prosecutions were by two “sovereigns” there were two laws or offenses, and not double jeopardy violation.

The Court’s decision can be found here.

On Thursday, in Gundy v. United States, in a 5-3 decision and majority opinion authored by Justice Elena Kagan, the Court affirmed the decision of the Second Circuit, ruling that Congress did not violate the nondelegation provisions of Article I of the Constitution when it gave the authority to the Attorney General to issue sex offender registration rules for those offenders that had committed their offenses before SORNA was enacted.

The Sex Offender Registration and Notification Act (SORNA) requires a broad range of sex offenders to register and imposes criminal penalties for non-compliance. 34 U. S. C. §§20913(b), (d). Subsection (b) sets out the general rule that an offender must register “before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement.” The Act states that, for individuals convicted of a sex offense before SORNA’s enactment, the Attorney General “shall have the authority” to “specify the applicability” of SORNA’s registration requirements and “to prescribe rules for [their] registration.” §20913(d). Under that delegated authority, the Attorney General issued a rule specifying that SORNA’s registration requirements apply in full to pre-Act offenders.

Defendant, a pre-Act offender, was convicted of failing to register. Both the District Court and the Second Circuit rejected his claim that Congress unconstitutionally delegated legislative power when it authorized the Attorney General to “specify the applicability” of SORNA’s registration requirements to pre-Act offenders.

The Supreme Court agreed.

A delegation of authority is constitutional so long as Congress sets out an intelligible principle to guide the delegee’s exercise of authority. The authority §20913(d) confers, according to the Court, as compared to the delegations it has upheld, is “distinctly small bore.” As Kagan explained, “[i]f SORNA’s delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.”

The Court’s decision can be found here.

Appellate Division, First Department

On Thursday, in People v. Disla, AD1 held defendant’s appeal of his NY County third-degree narcotics possession conviction in abeyance and remanded for a hearing to assess whether his lawyer’s bad advice about the immigration consequences of his conviction, an aggravated felony under federal immigration law mandating his deportation, affected his decision to plead guilty. AD1 found that no CPL § 440.10 motion was necessary because the record of the guilty plea was sufficient to demonstrate the bad advice.

AD1’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Jones, AD2 reversed and dismissed one of defendant’s two Kings County first-degree robbery convictions, and one of three second-degree robbery convictions, finding that supreme court erroneously failed to suppress a complainant’s identification of defendant in a cell phone video as unduly suggestive.

Following an alleged robbery outside of an apartment building, in which the robber had threatened the complainant with a taser, the building’s landlord recovered a cell phone found in front of the building. The detective showed complainant a video saved to the cell phone, which showed a man tasing someone sleeping on a staircase. The complainant identified the man using the taser as the man who had robbed him. Using facial recognition software, defendant was matched to the video. Detectives then created a photo array including a picture of defendant that had been created using the video. Complainant identified defendant in the array, and later in a lineup as the man who robbed him.

Supreme court denied defendant’s motion to suppress any evidence that complainant had identified him from the video on the grounds that it was not the product of a police-arranged identification procedure.

AD2 disagreed.

The procedure employed by the detective in showing complainant the cell phone videos was a police-arranged identification procedure, and the People failed to meet their initial burden of establishing the reasonableness of the police conduct and the lack of any undue suggestiveness created by the video identification procedure. By showing complainant the cell phone and telling him that the phone was recovered from the scene of the robbery, the detective suggested that the phone may belong to one of the perpetrators of the robbery. One of the videos portrayed an individual using a taser on someone else, which was similar to complainant’s description of the circumstances of the robbery.

AD2’s decision can be found here.

In People v. Truluck, AD2 reversed one of defendant’s two second-degree assault convictions concluding that the evidence was insufficient to show that the police officer that defendant was alleged to have assaulted was engaged in a lawful duty within the meaning of Penal Law § 120.05(3) when defendant was alleged to have assaulted her. Officers had testified that defendant, unprovoked, had punched the officer in the face. Because the evidence did not establish that the officer was intending or attempting to arrest defendant when defendant struck her, and the court had instructed that an officer is performing a lawful duty when they perform an arrest having reasonable cause to believe that the person committed a crime, the evidence was insufficient to show that the officer was performing a lawful duty when defendant hit her.

AD2’s decision can be found here.

Appellate Division, Third Department

On Thursday, in People v. Johnson, AD3 reversed defendant’s Cortland County VOP, agreeing with defendant that it was improper because (1) the allegation that she had violated probation was based on violations that were never enumerated in a written report, and (2) the fact that defendant had been arrested while on probation was insufficient to show that she had committed the acts underlying those arrests.

AD3’s decision can be found here.

In People v. Henry, AD3 reversed defendant’s Warren County second-degree murder conviction for an O’Rama error. During deliberations, the jury sent a note to the court that stated: “Repeat

Count 1 Murder 2nd in whole [and] Define ‘In concernt [sic] with.'” The entire record regarding the jury note consists of the court stating that the note had been marked as a court exhibit and, after informing the jury that it had received the note, the court then stating that “[t]he lawyers and I just discussed it. We decided it was a pretty simple note. You’d like me to repeat the instructions on Count 1, that’s Murder in the Second on a whole, that would include the affirmative defense. Also define what it means to be acting in concert with. So I’ll read that part too.”

Because the record contained no specific indication that the court provided counsel with the precise content of the note before it delivered its response to the jury, and the note was not read verbatim on the record before the response was given, AD3 reversed. The record failed to establish that counsel in fact had the opportunity to participate in the formulation of the court’s response to the jury’s substantive inquiry.

While AD3 reversed defendant’s murder conviction, it did not reverse the related first-degree robbery and burglary counts, for which defendant had been sentenced as a persistent violent felony offender to terms of 25 years to life, because the O’Rama error was limited to a jury note concerning the murder charge.

AD3’s decision can be found here.

Appellate Division, Fourth Department

On Friday, in People v. Geddis, AD4 reversed defendant’s Cattaraugus County second-degree assault and unlawful imprisonment convictions, finding that defendant’s right to be present during questioning of prospective jurors regarding “bias, hostility, or predisposition to believe or discredit the testimony of potential witnesses” was violated.

During a break in jury selection, a prospective juror stayed behind in the courtroom. Defendant was not present when this prospective juror advised the court and the attorneys that she was not sure if she fully responded to one of the earlier questions. The court asked defense counsel if he wanted his client present, and counsel stated that he was “okay with it” and that defendant was in the bathroom. The prospective juror then advised the court and the attorneys that her son was a convicted felon. Shortly thereafter, defense counsel struck this juror with a peremptory challenge. The juror’s information was relevant to a question asked earlier during voir dire: “Have any of you or anyone close to you been a victim of a crime, a witness to a crime, been accused of a crime, or participated in any way in a criminal proceeding?” Because defendant was not present for the prospective juror’s answer, and defendant had not personally waived his right to be present, the denial of his presence was reversible error.

AD4’s decision can be found here.

In People v. Parris, AD4 reversed defendant’s Monroe County second-degree murder conviction, finding that the evidence was insufficient to support the depraved indifference murder charge because the defendant’s conscious objective was to cause the victim’s death and was not a reckless act.

AD4’s decision can be found here.

In People v. Partridge, AD4 reversed defendant’s Onondaga County predatory sexual assault against a child conviction, because the crime of predatory sexual assault against a child became effective June 23, 2006, and, as supplemented by the bill of particulars, the indictment alleged that the offense occurred at defendant’s various residences between October 20, 2001 and October 19, 2007, which was the day before the victim turned 13 years old. Given the effective date of the statute, the time period in which it was alleged that defendant committed a course of sexual conduct against a child in the first degree was narrowed for the jury’s consideration to having occurred between June 23, 2006 and October 19, 2007.

AD4 found that, no rational person could conclude that the trial evidence was legally sufficient to establish that defendant committed predatory sexual assault against a child during the aforementioned time frame.

AD4’s decision can be found here.

Warm regards,

Edward V. Sapone

Sapone & Petrillo, LLP One Penn Plaza/ 53rd Floor/ 23rd Floor New York, NY 10038

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www.saponepetrillo.com

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