Category Archives: App. Div. 2d Dept.

Court must conduct a sufficient inquiry before enhancing a sentence for plea violation

The Second Department in People v. Zobe (2d Dept. 3/15/11), explained the procedure that must be followed before a defendant's sentence can be enhanced for violating a  condition of his plea agreement before sentencing.

The Defendant pleded guilty to Insurance Fraud 3º. As part of his plea agreement the Defendant stated he understood: (1) he must answer all questions asked by the Department of Probation truthfully and be consistent with the answers he gave during the plea colloquy; and (2) if the first condition is violated his sentence would be enhanced up to the maximum allowed.  The County Court, Westchester County, enhanced the Defendant's sentence after the Court found he violated his plea agreement when he was untruthful with the probation department.

After the Defendant was arrested for insurance fraud, he alleged the police beat him and handcuffed him to a chair.  Zobe later sued Yonkers Police Department. The Defendant made several statements to his probation officer about the alleged beating, including "all a false arrest." However, the Defendant never denied committing the insurance fraud. The County Court concluded the statements to his probation officer violated his plea agreement and enhanced his sentence. 

The Second Department reversed the County Court because the lower court failed to conduct a sufficient inquiry as to whether or not the Defendant violated a condition of his plea agreement. As part of that inquiry the Defendant should have been given an opportunity to present evidence that his later statements to his probation officer did not contradict the earlier statements he made in court.  (MK/LC)

Failure to advise of consequences of PRS violation

We all know that postrelease supervision (PRS) is a direct, not collateral, consequence of a conviction and, therefore, courts must advise a defendant that there will be a term of PRS before he or she pleads guilty.  But does that rule extend to advising a defendant that violating a PRS condition could lead to a prison sentence?  The Second Department recently said "no" in People v. Monk (2d Dept. 3/15/2011).  Prior to Monk, both the First and Third Departments had said that the consequences of violating a PRS term are collateral and need not be told to a pleading defendant.

The consequneces of violating a term of PRS are individual to the defendant and discretionary with the Parole Board.  Thus, the Second Department held, what happens after a PRS violation is collateral and does not affect the voluntariness of the plea.

This result makes sense, since the ramifications of violating the conditions of postrelease supervision are subject to the discretion of the Board of Parole, rendering them, by nature, merely collateral to pleas and sentences. Specifically, alleged violations of the conditions of postrelease supervision are heard and determined by the Board of Parole, and, upon determining that there is probable cause to believe that a defendant has violated such a condition, the Board of Parole must conduct a revocation hearing (see Penal Law § 70.45[4]; Executive Law § 259-i[3]). If the presiding officer at that hearing is satisfied, by a preponderance of the evidence, that the defendant has violated one or more conditions of postrelease supervision, the presiding officer then determines the remedy that is to be imposed upon the defendant (see Executive Law § 259-i[3][f][x]). The remedies that may be imposed are, as relevant here, a restoration of the defendant to supervision; or, as an alternative to reincarceration, the placement of the defendant in a parole transition facility for not more than 180 days with subsequent restoration to supervision; or directing the defendant's reincarceration for up to the balance of the remaining period of postrelease supervision, not to exceed five years (id.).

Thus, the consequences that arise from violating conditions of postrelease supervision are within the discretion of the Board of Parole, and are therefore collateral to the judgment of conviction. Accordingly, there is no requirement that a trial court must specifically advise a defendant of the consequences of violating conditions of postrelease supervision, in order for the defendant's guilty plea to be knowingly and voluntarily entered.



Reversal for prosecutorial misconduct

The cumulative effect of improper comments by a prosecutor in summation can lead to reversal in the interest of justice, even though the claim was only partially preserved.  In People v. Spann (2d Dept. 3/15/2011), the Defendant was charged with CPW 2º after an officer noticed a gun during a traffic stop.  The court pointed to the following errors during the prosecutor's summation:

  • Arguing that the Defendant's nervousness was consciousness of guilt and that the Defendant's contention that this was due to a medical contention was a "smokescreen" and "smoke and mirrors."
  • Informing the jury that the only way it could find reasonable doubt was if it believed the Defendant.
  • Repeatedly arguing that the gun was found under the front passenger seat when the testimony only established that it was under the "front seat."

Interestingly, the Second Department's opinion did not address harmless error.  (LC)

AD2 issues two reversals for IAC

In two recent decisions, the Second Department reversed the convictions, finding trial counsel provided ineffective assistance of counsel.

In the first, People v Bodden (2d Dept. 3/1/2011), a case out of Queens County, the Defendnat was charged with CPW 2º and related counts.  The court found that the cumulative effect of counsel's errors deprived the Defendant of a fair trial.  They included:

  • counsel's statements during jury selection distanced himself from his client;
  • failure to cross-examine witnesses effectively;
  • use of "an anachronistic and potentially offensive term to describe the race of one of the persons allegedly present at the time that the defendant was arrested";
  • failure to inspect photographs before they were admitted into evidence, even though he had not seen them before;
  • two improper offers to stipulate: (1) that a fact witness was an expert witness; and (2) to another witness' entire testimony, even though he did not know what the witness would say;
  • frequent interruptions;
  • failure to ask the Defendant's mother, during her testimony, about the alleged crime, even though she was present;
  • untimely request for a missing witness charge;
  • during closing argument, "although he made some cursory observations about the People's evidence, he focused much of his presentation on the role of a jury in a democracy"; and
  • failure to object to improper arguments by the prosecutor in summation.

In the second case, People v. DiPippo (2d Dept. 3/1/2011), a murder prosecution out of Putnam County, the court found that defense counsel had a conflict of interest arising out of the representation of a former client, who was also a suspect in the homicide.  The Appellate Division found that there was insufficient evidence that trial counsel investigated the evidence against the former client, disclosed the former representation to his present client, or that he tried to get evidence of photographs implicating the former client into evidence.  Based on these findings, as well as a lengthy hypothetical posed to trial counsel and his response, the Second Department wrote, "[w]e need not defer to the Supreme Court's determination finding trial counsel credible."  The court ultimately concluded, "[C]ontrary to the Supreme Court's determination, trial counsel's actions did not unambiguously demonstrate that he 'perceived no conflict of interest and was unaffected by any sense of loyalty to [the former client].'" (LC)

Burglary and the house under foreclosure

One of the elements of Burglary is the unlawfulness of the entry.  In People v. Klem (2d Dept. 1/25/2011), the Defendant was accused of entering an abandoned building that had been foreclosed.  Although there was a judgment of foreclosure and an order of sale, the complainant still had a property interest in the premises until the property was actually sold.  Therefore, there was legally sufficient evidence on this element when the complainant testified that she did not consent to the Defendant's entry.  

Nevertheless, the conviction was reversed.

As relevant to that charge, the defendant sought to call a witness who allegedly would have testified that, on the day of the incident, a hot water heater was taken from her property, and that her property abutted property owned by the employer of one of the codefendants. This testimony was relevant to the theory of defense, which was that the hot water heater that was seen in the defendants' possession by the People's witnesses had not been taken from the building on the complainant's property, and also would have served to impeach the credibility of the People's principal witnesses on the material issues of whether the defendants entered the complainant's building, and whether they did so with the intent of committing a crime therein.