Wrong Advice and Lack of Support By Defense Counsel Leads to Ineffective Assistance of Counsel

In People v. Griffith (4th Dept. 11/9/2018), the Fourth Department found that the defendant had been denied effective assistance of counsel when his attorney refused to assist him in appealing his denied petition for a downward modification under the Sex Offender Registration Act (SORA). The defendant claimed in his petition that he was entitled to a downward modification of his previously-imposed classification as a level three risk pursuant to Correction Law §168-o(2). The court initially found that the defendant’s claim on appeal arises under CPLR 5701 not under Correction Law §168-o(2).

When the defendant moved forward with his petition, his assigned counsel wrote a letter to the court indicating that the petition was meritless and that he would not support the petition. Additionally, he advised the defendant to withdraw the petition so that defendant would not delay his right to file a new modification petition in two years. But the defendant’s counsel was wrong. Under Correction Law §168-o(2) a defendant may file a petition “no more than once annually.”

The Court concluded that by refusing to support the defendant’s petition and giving him incorrect advice, there was ineffective assistance of counsel because the defendant’s attorney essentially became a witness against the defendant and took a position adverse to him. (MK/LC)

Event Tickets Create a Legal Right Under New York Penal Law

In People v. Watts (Ct. App. 11/20/2018) (Fahey, J.), the Court of Appeals considered the issue of whether an event ticket, such as a concert or sporting event ticket, affects a legal right, interest, obligation, or status within the meaning of Penal Law § 170.10 (1). The Court held that it does.

Defendant Rodney Watts was indicted on multiple counts of Criminal Possession of a Forged Instrument 2º for selling counterfeit concert tickets. Watts moved to dismiss the indictment, contending that a counterfeit concert ticket falls outside of the Forgery 2º statute and, therefore, the Criminal Possession of a Forged Instrument 2º statute, because a concert ticket does not “affect a legal right, interest, obligation or status” under the statute. Additionally, Watts argued that the catchall clause of Penal Law § 170.10(1) must be read to contemplate only documents of the same character as a “deed, will, codicil, contract, assignment, commercial instrument, [or] credit card.” Watts argued that concert tickets are not any of these. The trial court denied Watts’ motion.

Watts was subsequently arrested and indicted again but this time for possession of counterfeit sporting event tickets. His motion to dismiss on the same grounds as before were similarly denied by the trial court. Watts eventually pled guilty to two counts of Criminal Possession of a Forged Instrument in the 2° in satisfaction of both indictments. Watts appealed his conviction arguing that the indictments were jurisdictionally defective, but the Appellate Division affirmed the conviction.

The defendant’s argument on appeal was that event tickets are revocable licenses and do not “affect a legal right, interest, obligation or status” under the statute. The Court agreed in part. Relying on prior case law, the Court stated that Watts was correct that an event ticket was a revocable license, but the nature of an event ticket could affect a legal right or legal status. An event ticket is a license, issued by the proprietor, as convenient evidence of the right of the holder to admission into the event.

Additionally, the Court based its reasoning on contracts law principles. The Court stated that under certain circumstances, a ticket holder can recover the price of an event ticket in an action for breach of contract. The purchase of an event ticket is a contract that binds the creator and if the holder of the ticket were to be wrongfully ejected or denied entry from the event, he or she would have a breach of contract claim against the licensor. Based on these principles the Court held that event tickets do create a legal right under the Penal Law as well. (MK/LC)

“Dangerous Contraband”: What is it?

In People v. Flagg (4th Dept. 11/16/2018), the Fourth Department considered a defendant’s appeal despite the lack of preservation and expounded upon what constitutes “dangerous contraband” in a prison.

At the lower court, the defendant was convicted  by a jury of Promoting Prison Contraband 1° and CPCS 7°. These convictions arose after correction officers obtained a disposable glove containing four Tramadol pills from the defendant’s possession, while he was incarcerated at a local jail.

For the crime of Promoting Prison Contraband 1º, the People were required to prove that the defendant was (1) confined in a detention facility, and (2) knowingly and unlawfully made, obtained, or possessed any “dangerous contraband.” Dangerous contraband is defined by the Penal Law as “contraband which is capable of such use as may endanger the safety or security of a detention facility or any person therein.” The test that the Court of Appeals developed in People v. Finley to determine whether a substance is dangerous is “whether its particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility’s institutional safety or security.”

On appeal, the defendant contended that there was legally insufficient evidence to establish that the Tramadol pills were “dangerous.” Although defense counsel moved for a dismissal, the Court noted that this was not enough to preserve the issue for review, but considered the defendant’s appeal in the interest of justice.

The People presented testimony from corrections officers that the pills were dangerous because inmates will fight over the drugs and inmates will also get high and try to fight the staff, or attack other inmates. Additionally, a Sheriff’s detective testified that if not prescribed to the person who was taking the pills, it could cause the person who ingested the pill’s death.

The Court found that this testimony was only discussing broad penological concerns and was speculative and conclusory. The evidence did not establish a substantial probability of a major threat to the facility, or death or serious injury. Specifically, the Court found that there was no specific evidence regarding the dosage of Tramadol or what it would do if ingested by an individual. Thus, the Court found that the People did not establish the “dangerousness” of the pills possessed by the defendant and therefore, the convicted should be reduced to Promoting Prison Contraband 2°.

Further, the Court noted that drugs in it of themselves are not inherently dangerous and the specific use and effects are necessary to show whether or not a drug is dangerous. The Court stated the determination of what types and quantities of drugs are considered dangerous is best left to the legislature. (JC)

Old Enough to Know Better, But Not Enough to Warrant a 35-Year Sentence

The Fourth Department in People v. Jones (4th Dept. 11/9/2018) considered whether it should, in its discretion, override the lower court’s decision on two matters: (1) whether the defendant should have been sentenced as a youth offender or as an adult, and (2) whether the sentence imposed was too harsh and excessive. The Court ultimately used its authority to amend the lower court’s decision on the second count in the “interest of justice.”

The defendant was convicted of Assault 1º and two counts of CPW 2º; he committed the crimes when he was 18 years old. Although 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.” Therefore, the only relevant mitigating factors related to a CPL 720.10(3), or “eligible youth,” inquiry revolve around the circumstances of the crime itself, such as “a lack of injury to others or evidence that the defendant did not display a weapon during the crime.” Here, the Fourth Department affirmed the lower court’s decision in trying the defendant as an adult rather than an eligible youth because he carried a loaded gun on several occasions and shot a gang member.

Although the Court decided that trying the defendant as an adult was just, it determined that the 35-year sentence imposed on the defendant was too harsh. As a matter of discretion in the interest of justice, the Fourth Department modified the defendant’s sentence to run for an aggregate term of 25 years. The Court contemplated multiple factors in deciding to reduce the sentence; the defendant’s lack of a criminal record, the fact that the victim was attempting to commit an armed robbery of the defendant’s gang members, and the fact that the People offered a plea constituting a 20-year sentence all contributed to the Court’s decision to impose a more lax sentence.

Two judges dissented to the second part of the majority’s opinion; they did not believe the Court should amend the sentence in any way. This decision was not necessary in the “interest of justice.” Although the dissent noted the defendant’s low intellect and rough childhood, it was of paramount significance that the defendant was a dangerous individual who was known to carry a loaded gun. Thus, he should be “locked up for a long time.”

State and Local Law Enforcement Prohibited from Making Civil Immigration Arrests

In People ex rel. Wells o/b/o Susai Francis v. DeMarco (2d Dept. 11/14/2018), the Second Department unanimously held that New York state and local law enforcement officers are not authorized under New York law to make arrests for civil immigration violations.

The factual background is somewhat complicated. The petitioner, Susai Francis, is an Indian citizen. He entered the United States via New York City in 1996 on a B2 visitor visa, which allowed him to remain in the United States for a period not to exceed six months. Francis did not leave the United States when the visa expired. Instead, he has remained on Long Island for more than two decades and has two children, one of whom is a citizen of the United States. On March 25, 2015, Francis was served with a notice to appear in Immigration Court, and he is currently the subject of removal proceedings.

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