New York Law Review

Tag: Criminal Procedure Law

  • People v. Sharp, 2024 NY Slip Op 05132 (2024): Defendant’s Right to be Present at Sandoval Hearing

    People v. Sharp, 2024 NY Slip Op 05132 (2024)

    A defendant has a right to be present and meaningfully participate in a Sandoval hearing, and a violation of this right requires reversal and a new trial, even if a subsequent hearing occurs in the defendant’s presence if the defendant was denied the opportunity for meaningful participation.

    Summary

    The New York Court of Appeals reversed the defendant’s conviction, holding that the trial court violated the defendant’s right to be present during a Sandoval hearing. The trial court held an off-the-record conference on the prosecution’s motion to cross-examine the defendant on his prior criminal conduct without the defendant’s presence. While the court later announced its decision in court with the defendant present, the Court of Appeals found that this did not cure the initial error. The court reasoned that the defendant’s meaningful participation was necessary to point out factual errors, controvert the prosecutor’s assertions, and provide details about the underlying facts of prior convictions. The Court found that the defendant was deprived of this opportunity when the initial conference occurred in his absence and the subsequent proceeding did not afford him the opportunity to participate.

    Facts

    The defendant was charged with unlawful possession of a defaced firearm and a loaded firearm. The prosecution filed a Sandoval application to cross-examine the defendant about his prior convictions. The trial court held an in-camera, off-the-record conference on the Sandoval motion with the prosecution and defense counsel, but without the defendant. At a subsequent in-court appearance, the trial court announced its rulings on the Sandoval application. The defendant’s attorney indicated that he was standing by the discussion that occurred in chambers. The defendant was later found guilty at a bench trial. The Appellate Division affirmed the conviction, but the New York Court of Appeals reversed.

    Procedural History

    The trial court held an in-camera conference regarding the Sandoval motion, excluding the defendant. The trial court then announced its Sandoval rulings in open court, with the defendant present. The defendant was convicted in a bench trial. The Appellate Division affirmed the conviction, with one justice dissenting. The New York Court of Appeals reversed the Appellate Division’s decision, ordering a new trial.

    Issue(s)

    1. Whether the trial court violated the defendant’s right to be present during a material stage of the prosecution when it held a conference concerning the Sandoval application without him.

    2. Whether the subsequent proceedings cured the error of excluding the defendant from the initial Sandoval conference.

    Holding

    1. Yes, because the defendant has a right to be present during the Sandoval hearing.

    2. No, because the subsequent in-court appearance did not allow the defendant to meaningfully participate in determining the merits of the Sandoval motion.

    Court’s Reasoning

    The court relied on Criminal Procedure Law § 260.20, which states that a defendant must be present during the trial of an indictment. The court cited People v. Dokes, which held that a defendant has the right to be present at proceedings where the defendant has something valuable to contribute, including the substantive portion of a Sandoval hearing. The court reasoned that the defendant’s presence is crucial for pointing out errors in the criminal record, controverting the prosecutor’s assertions, and providing details about the underlying facts. The court held that the in-chambers conference was a material stage of the Sandoval hearing, and the defendant’s absence violated his right to be present.

    The court also held that the subsequent proceedings did not cure the error. The court emphasized that the defendant’s presence is not enough; the proceedings must afford the defendant a meaningful opportunity to participate. The court distinguished prior cases by noting that, in this case, the trial court did not ask the defendant if he wished to be heard, the court’s recitation of its rulings did not allow the defendant to meaningfully participate, and the defense counsel’s presence and comments did not satisfy the statute because it is the defendant’s right to be present.

    Practical Implications

    This case reinforces the importance of a defendant’s presence during Sandoval hearings, including any preliminary discussions about the application. Attorneys must ensure that their clients are present for all stages of these hearings and are given the opportunity to participate. Specifically, the defendant must be in a position to contribute to a discussion of their criminal history to ensure that the court’s determination is not based solely on the prosecutor’s view of the facts. Failure to do so could lead to the reversal of a conviction. This ruling has implications for how trial courts should handle Sandoval hearings, mandating the defendant’s presence at all stages where factual matters are discussed. It is incumbent on the trial judge to ensure that a defendant understands their rights, including the opportunity to be heard on the application, and to avoid simply reiterating rulings previously made in the defendant’s absence. Additionally, this case illustrates that mere notice of the application is not enough; actual participation is required. It is important to remember that even if defense counsel is present and active, the defendant’s individual presence is still crucial for the protection of their rights.

  • People v. Brown, 25 N.Y.3d 1039 (2015): Expanding Drug Law Reform Act Eligibility to Parolees

    People v. Brown, 25 N.Y.3d 1039 (2015)

    The 2011 amendments to CPL 440.46 expanded the class of defendants eligible for resentencing under the Drug Law Reform Act to include those who are on parole at the time resentencing is sought.

    Summary

    The New York Court of Appeals held that the 2011 amendments to CPL 440.46, which changed the wording from “custody of the department of correctional services” to “custody of the Department of Corrections and Community Supervision (DOCCS),” expanded the class of defendants eligible for resentencing under the Drug Law Reform Act (DLRA) to include parolees. The court reasoned that a parolee is in the legal custody of DOCCS, and therefore, fits the statutory definition of eligible individuals. The court affirmed the Appellate Division’s decision, emphasizing that the DLRA is a remedial statute that should be liberally construed to achieve its goals of correcting unduly harsh sentences. The dissenting judge argued the amendment was a technical change made in a budget bill that did not substantively change the law.

    Facts

    Jarrod Brown sold cocaine in 2001 and pleaded guilty to third-degree criminal sale of a controlled substance in 2002, receiving a 6-12 year sentence. He was released on parole on April 15, 2011. While on parole, he moved for resentencing under CPL 440.46. The People opposed, claiming ineligibility because he was not incarcerated. Brown contended eligibility based on the 2011 amendments to CPL 440.46, reflecting the merger of the Department of Correctional Services and the Division of Parole into DOCCS.

    Procedural History

    The Supreme Court granted Brown’s motion for resentencing on July 31, 2012. The Appellate Division unanimously affirmed, holding that the plain language of section 440.46, when read together with Executive Law section 259-i (2)(b), meant that non-incarcerated defendants on parole were in the “custody” of DOCCS and thus eligible for resentencing. The Court of Appeals granted the People leave to appeal, and affirmed the Appellate Division’s decision.

    Issue(s)

    1. Whether the 2011 amendments to CPL 440.46 expanded the class of defendants eligible for resentencing to include those on parole.

    Holding

    1. Yes, because the court held that the plain language of CPL 440.46, in conjunction with Executive Law § 259-i(2)(b), which states a parolee is in the “legal custody” of DOCCS, leads to the conclusion that a non-incarcerated parolee is eligible to apply for resentencing.

    Court’s Reasoning

    The court’s reasoning hinged on statutory interpretation, emphasizing the plain meaning of the language used in CPL 440.46(1), which encompassed “any person in the custody of [DOCCS].” The court cited Executive Law § 259-i(2)(b), which states that a parolee is in the “legal custody” of DOCCS. The court also referenced the legislative intent of the DLRA to grant relief from “inordinately harsh punishment for low level non-violent drug offenders.” The court argued that the 2011 amendments were not purely budgetary or technical changes, but emphasized a focus on reentry. The court also noted that remedial statutes, like the DLRA, should be interpreted broadly. The court noted that any ambiguity in CPL 440.46 should be read in favor of the applicant. The dissent argued the amendment was a technical change with no substantive effect.

    Practical Implications

    This case clarifies that individuals on parole are now eligible to apply for resentencing under CPL 440.46. Legal practitioners should consider this ruling when advising clients who were sentenced under the pre-2005 Rockefeller Drug Laws. Lawyers should determine if their clients are on parole and meet other requirements for resentencing applications. This decision impacts criminal defense attorneys dealing with drug-related sentencing issues. It also has implications for prosecutors and courts in evaluating the eligibility of defendants seeking resentencing under the DLRA. Furthermore, it affects the Department of Corrections and Community Supervision (DOCCS) as it processes and supervises resentenced individuals.

  • People v. Pagan, 19 N.Y.3d 365 (2012): Appealability of Probation Modification Orders

    People v. Pagan, 19 N.Y.3d 365 (2012)

    A direct appeal does not lie from an order modifying the conditions of a sentence of probation; the proper method for challenging such an order is a CPLR article 78 proceeding.

    Summary

    Defendant Pagan pleaded guilty to criminal possession of a weapon and received a sentence of jail time and probation. The Department of Probation later sought to modify the conditions of his probation to include warrantless home searches. The Supreme Court granted a modified request, allowing “knock and announce” searches. The Appellate Division affirmed. The Court of Appeals reversed, holding that the modification order was not directly appealable under the Criminal Procedure Law. The Court stated that judicial review must be sought via a CPLR article 78 proceeding, such as prohibition, to challenge the court’s power to modify the probation conditions.

    Facts

    Jorge Pagan pleaded guilty to one count of criminal possession of a weapon in the third degree. In June 2008, he was sentenced to six months in jail and five years of probation, pursuant to a plea agreement. More than three months later, the New York City Department of Probation applied to the court to enlarge the conditions of Pagan’s probation under CPL 410.20 to authorize searches of his home during his probationary term. Pagan opposed the application, arguing that the court lacked the authority to modify the conditions of probation to include warrantless home searches.

    Procedural History

    In January 2009, the Supreme Court granted the application, modifying the conditions of probation to permit the Department of Probation to conduct sporadic “knock and announce” searches of Pagan’s home at reasonable hours when he was present. Pagan appealed. The Appellate Division affirmed. A dissenting Justice granted Pagan leave to appeal to the Court of Appeals.

    Issue(s)

    Whether a defendant can appeal from an order modifying the conditions of a sentence of probation.

    Holding

    No, because no appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute, and CPL article 450 does not authorize a direct appeal from an order modifying probation conditions. However, judicial review may be sought in a CPLR article 78 proceeding.

    Court’s Reasoning

    The Court of Appeals began by emphasizing the principle that appeals in criminal proceedings are statutory creations, and absent specific authorization, no appeal lies. The Court analyzed CPL article 450, which governs the appealability of orders in criminal proceedings. CPL 450.10(2) allows a defendant to appeal from a “sentence,” as prescribed by CPL 450.30(1), which, in turn, allows appeals based on a sentence being “invalid as a matter of law” or “harsh or excessive.” However, CPL 450.30(3) specifies that an appeal from a sentence under CPL 450.10(2) can only be from the sentence originally imposed or from a resentence following an order vacating the original sentence.

    The Court reasoned that the January 2009 order modifying the conditions of Pagan’s probation did not fit either statutory category. It was not the sentence originally imposed, nor did the court vacate the original sentence and impose a resentence. Instead, the court altered the conditions of probation pursuant to CPL 410.20(1), which authorizes a court to “modify or enlarge the conditions of a sentence of probation.” Therefore, the modification order was not a “sentence” within the meaning of CPL 450.30(3), precluding a direct appeal. The Court stated, “[W]e cannot apply a more expansive interpretation just because we think it is a good idea, especially when an adequate legal remedy aside from a direct appeal [is] available.”

    The Court highlighted that Pagan could have brought a CPLR article 78 proceeding in the nature of prohibition to challenge the modification of the conditions of his sentence of probation on the ground that the court lacked the power to modify as it did. The Court directed the Appellate Division to dismiss the appeal, as neither the Appellate Division nor the Court of Appeals had jurisdiction to entertain it.

  • People v. Suber, 19 N.Y.3d 248 (2012): Corroboration Not Required for Information’s Facial Sufficiency

    People v. Suber, 19 N.Y.3d 248 (2012)

    A defendant’s admission need not be corroborated to satisfy the prima facie case requirement for an information.

    Summary

    The New York Court of Appeals held that an information charging a defendant with failing to register as a sex offender was facially sufficient, even though the defendant’s admission of moving to certain residences without notification was not corroborated. The Court reasoned that while CPL 60.50 requires corroboration for a conviction based on an admission, the statutes governing informations (CPL 100.40) do not explicitly mandate corroboration for an information to be facially valid. Therefore, the Appellate Term’s reversal of the defendant’s conviction was incorrect. The Court of Appeals reversed and reinstated the conviction.

    Facts

    Defendant Frank Suber, a registered sex offender, moved to two different addresses in Brooklyn in December 2005 and February 2006 without notifying the Division of Criminal Justice Services (DCJS) or verifying his address with local law enforcement, as required by Correction Law § 168-f. He eventually informed a police officer about his prior Brooklyn residences. Based on this admission, the People filed a misdemeanor information charging him with failing to register and verify his address.

    Procedural History

    In Criminal Court, the defendant challenged the facial sufficiency of the information, arguing that it lacked corroboration of his admissions. The Criminal Court found corroboration unnecessary and accepted his guilty plea. The Appellate Term reversed, holding that corroboration was required and the absence thereof rendered the information jurisdictionally insufficient. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a defendant’s admissions must be corroborated to satisfy the prima facie case requirement for an information.

    Holding

    No, because the Criminal Procedure Law does not explicitly require corroboration of a defendant’s admission to establish a prima facie case in an information.

    Court’s Reasoning

    The Court of Appeals reasoned that CPL 60.50, which requires corroboration for a conviction based solely on a confession or admission, does not apply to the facial sufficiency of charging instruments. The Court emphasized that while an information must establish a prima facie case with non-hearsay allegations, the relevant statute (CPL 100.40) does not expressly mandate corroboration of admissions. The Court distinguished the requirements for informations from those for indictments, where corroboration is explicitly required by CPL 70.10(1) and 190.65(1). The Court noted the legislative history, pointing out that the legislature removed the term “legally sufficient evidence” which incorporates a corroboration requirement, when drafting the information provision. The Court also stated, “Since clear and unequivocal statutory language is presumptively entitled to authoritative effect CPL 100.40 (1) does not mandate corroboration of an admission in an information.” The Court clarified that while corroboration is not required for the *information* to be valid, CPL 60.50 *does* require corroboration before a conviction can be obtained at trial based solely on the defendant’s admission. The dissenting opinion argued that the majority departed from precedent and that an information must contain allegations establishing a legally sufficient case, which includes corroboration of admissions. The majority addressed the dissent’s reliance on People v. Alejandro and Matter of Jahron S. by stating “To the extent that Alejandro and Jahron S. may have tended to equate a prima facie case for an information or a juvenile delinquency petition with legally sufficient evidence under CPL 70.10 (1), those portions of the writings were dicta and, as we now explain, are incompatible with the governing statutes.”

  • People v. Williams, 19 N.Y.3d 101 (2012): Post-Release Supervision as Part of Determinate Sentence for Order of Protection Duration

    People v. Williams, 19 N.Y.3d 101 (2012)

    For the purpose of determining the duration of an order of protection issued at sentencing, a “determinate sentence of imprisonment actually imposed” includes the mandatory period of post-release supervision (PRS).

    Summary

    The New York Court of Appeals addressed whether a determinate sentence of imprisonment includes the mandatory period of post-release supervision (PRS) when calculating the duration of an order of protection. The defendant argued that the order of protection’s expiration date should not include his PRS period. The Court of Appeals held that the term of PRS is part of the “determinate sentence of imprisonment actually imposed” as defined in CPL 530.13(4), and therefore the order of protection was correctly calculated to include the PRS period. This decision harmonizes the Criminal Procedure Law with the Penal Law’s inclusion of PRS as part of a determinate sentence.

    Facts

    Defendant pleaded guilty to first-degree assault. At the initial sentencing, the Supreme Court imposed a 13-year prison term and an order of protection effective for three years from the date of the maximum time of incarceration, resulting in an expiration date of May 22, 2022. The Supreme Court did not mention PRS during sentencing, but the commitment sheet indicated a three-year PRS term. On appeal, the Appellate Division vacated the PRS term because it was not part of the oral pronouncement of the sentence. Subsequently, the defendant moved to amend the order of protection, arguing that it should expire in 2019, three years after his calculated release date (accounting for jail time credit), not including the PRS period.

    Procedural History

    The Appellate Division modified the original judgment, vacating the three-year PRS term due to the sentencing court’s failure to pronounce it orally and remanding for resentencing. At resentencing, the Supreme Court orally sentenced the defendant to a three-year term of PRS and denied the defendant’s motion to amend the order of protection, agreeing with the People that the PRS extended the order’s duration. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the term “determinate sentence of imprisonment actually imposed” in former CPL 530.13(4) includes the mandatory period of post-release supervision (PRS) for purposes of calculating the duration of an order of protection issued at sentencing.

    Holding

    Yes, because the Penal Law defines a determinate sentence of imprisonment to include a period of post-release supervision (PRS) as part of the sentence.

    Court’s Reasoning

    The Court reasoned that while former CPL 530.13(4) did not explicitly reference PRS, the Penal Law, specifically sections 70.45(1) and 70.00(6), clearly states that a determinate sentence of imprisonment includes PRS. The Court emphasized that the language of these Penal Law sections is unambiguous: a determinate sentence necessarily includes PRS. To exclude PRS would contradict the Legislature’s intent. The Court noted, “If the Legislature intended PRS to be wholly distinct from a defendant’s determinate sentence, it would not have specified in former section 70.45 of the Penal Law that a “determinate sentence” encompassed PRS “as a part thereof.” Nor would the Legislature have described a “determinate sentence of imprisonment” to “include, as a part thereof, a period of [PRS]” in former section 70.00 (6).” The court also emphasized the importance of including PRS when calculating the maximum expiration date of the determinate sentence to account for potential conditional release and reincarceration during the PRS period. This interpretation harmonizes the statutes, giving effect to the Legislature’s intent to include PRS as an integral component of a determinate sentence.

  • People ex rel. McManus v. Horn, 18 N.Y.3d 660 (2012): Bail Statute Requires at Least Two Forms of Bail

    People ex rel. McManus v. Horn, 18 N.Y.3d 660 (2012)

    New York Criminal Procedure Law 520.10(2)(b) requires a court to designate at least two forms of bail, offered in the alternative, and prohibits a court from setting cash-only bail.

    Summary

    Shaun McManus was arrested for arson and related offenses while on parole. After violating an order of protection, bail was set at $20,000 cash only. McManus challenged this, arguing that CPL 520.10(2)(b) requires at least two forms of bail. The lower courts upheld the cash-only bail. The New York Court of Appeals reversed, holding that the statute mandates a court offer at least two alternative forms of bail, to ensure flexible options for pretrial detainees who are presumed innocent. The court reasoned that this interpretation aligns with the legislative intent to reform restrictive bail practices.

    Facts

    Shaun McManus was arrested for arson and related offenses against a victim while on parole. After initially posting bail, he violated an order of protection against the same victim by threatening him with weapons. At arraignment for the new charges, bail was set. Subsequently, McManus was indicted based on the initial incidents. The Supreme Court then ordered bail to be set at $20,000 “CASH ONLY.”

    Procedural History

    After the Supreme Court set bail at $20,000 cash only and denied a motion to increase it, McManus was unable to secure a bail bond. He sought alteration of the bail ruling, which was denied. McManus then commenced a CPLR article 70 proceeding for a writ of habeas corpus, arguing the cash-only bail was illegal. The Supreme Court dismissed the petition. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether CPL 520.10(2)(b) prohibits a court from designating only one form of bail, specifically cash only, or whether the statute allows a court the discretion to mandate a single form of bail.

    Holding

    Yes, CPL 520.10(2)(b) prohibits a court from fixing only one form of bail because the statute’s language and legislative purpose indicate that a defendant is entitled to at least two alternative choices for bail.

    Court’s Reasoning

    The Court of Appeals analyzed the language of CPL 520.10(2)(b), which refers to “any one of two or more of the forms” of bail. While acknowledging the District Attorney’s argument that the statute’s reference to a singular “form” of bail and the use of “may” could suggest judicial discretion to impose a single type of bail, the Court found McManus’s interpretation more consistent with the statute’s overall structure and legislative purpose.

    The Court reasoned that the inclusion of “may” in both subdivisions (2)(a) and (2)(b) was to allow the court discretion between two methods of fixing bail: setting an amount without specifying a form (allowing the accused to choose an unsecured bond) or specifying the forms of bail (requiring at least two options). The Court stated, “Providing flexible bail alternatives to pretrial detainees—who are presumptively innocent until proven guilty beyond a reasonable doubt—is consistent with the underlying purpose of article 520.”

    The Court highlighted the legislative intent behind CPL 520.10, which was to reform the restrictive bail scheme under the former Code of Criminal Procedure to improve pretrial release availability. The Court further explained that if a court believes a substantial personal undertaking is necessary, CPL 520.10(2)(b) allows the court to order a higher cash bail alongside another form of bail that is virtually indistinguishable. For example, the court could order a high cash bail along with a high partially-secured appearance bond requiring a 10% deposit.

    The Court also addressed the argument regarding cases where courts order $1 cash bail, explaining that this is done for the defendant’s benefit, allowing credit for time served. The Court concluded by stating, “For these reasons, we hold that CPL 520.10 (2) (b) prohibits a court from fixing only one form of bail.”

  • People v. Alonso, 16 N.Y.3d 581 (2011): Determining Appealability of Dismissal Based on Underlying Statutory Authority

    16 N.Y.3d 581 (2011)

    When determining whether the People can appeal the dismissal of an indictment, the Court of Appeals will look to the underlying statutory authority the trial court relied upon to dismiss the indictment, regardless of whether the trial court explicitly stated that authority.

    Summary

    In a Medicaid fraud case, the trial court dismissed the indictments with prejudice due to the People’s failure to disclose exculpatory evidence under Brady. The Appellate Division dismissed the People’s appeal, holding they lacked statutory authority to appeal a dismissal based on a discovery violation. The Court of Appeals reversed, finding the dismissal was ultimately based on CPL 210.20(1)(h), which allows dismissal for a legal impediment to conviction, and is appealable under CPL 450.20. This decision clarifies that the basis for dismissal, not the stated rationale, determines appealability.

    Facts

    Robert and Emilia Alonso were on trial for Medicaid fraud. During the trial, the Supreme Court determined that the People had failed to disclose exculpatory evidence, violating the defendants’ rights under Brady v. Maryland. The court found that the prejudice to the defendants was so significant that it could not be remedied by any means other than dismissing the indictments.

    Procedural History

    The Supreme Court dismissed the indictments with prejudice. The People appealed to the Appellate Division. The Appellate Division dismissed the appeal, holding that the People lacked statutory authority to appeal a dismissal based on a discovery violation. The People were granted leave to appeal to the Court of Appeals.

    Issue(s)

    Whether the People have a right to appeal the dismissal of indictments when the trial court dismisses the indictments as a remedy for a Brady violation discovered during trial.

    Holding

    Yes, because the Supreme Court’s power to dismiss the indictments emanated from CPL 210.20(1)(h), making the order appealable.

    Court’s Reasoning

    The Court of Appeals recognized that the People’s right to appeal a dismissal is governed by Criminal Procedure Law § 450.20, which specifies the types of dismissals that are appealable. While the trial court did not explicitly state the authority under which it dismissed the indictments, its actions were based on CPL 240.70. CPL 240.70 allows a court to take “any other appropriate action” in response to a discovery violation, but does not explicitly grant the power to dismiss an indictment. However, CPL 210.20(1)(h) allows a court to dismiss an indictment when “[t]here exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged.” The Court of Appeals reasoned that the trial court’s determination that the Brady violation made a fair trial impossible constituted a “legal impediment to conviction,” thus bringing the dismissal under the authority of CPL 210.20(1)(h). The Court emphasized that a trial court could not insulate its dismissal from appeal simply by claiming to rely on a non-appealable statutory provision. The dissent argued that because the Supreme Court dismissed the indictments pursuant to CPL 240.70, which is not specifically enumerated in section 450.20, the People had no right to appeal.

  • People v. Guerrero, 12 N.Y.3d 46 (2009): Mandatory Surcharge Need Not Be Orally Pronounced at Sentencing

    12 N.Y.3d 46 (2009)

    A mandatory surcharge and crime victim assistance fee, mandated by Penal Law § 60.35(1), are not part of a ‘sentence’ requiring a judge to pronounce them in the defendant’s presence during sentencing, as per CPL §§ 380.20 and 380.40.

    Summary

    Defendant Guerrero pleaded guilty to second-degree murder and was sentenced to 19 years to life. While the judge stated the agreed-upon sentence at the hearing, he did not mention the mandatory surcharge and crime victim assistance fee, though they were listed on sentencing documents. The New York Court of Appeals held that these assessments are not a part of the ‘sentence’ as defined by the Criminal Procedure Law (CPL). Therefore, the judge wasn’t required to pronounce them aloud during sentencing. The court reasoned the statute imposing these assessments describes them as distinct from any sentence, reinforcing their non-punitive, revenue-raising nature.

    Facts

    Felix Soriano Guerrero pleaded guilty to second-degree intentional murder. At his sentencing hearing, the judge confirmed the agreed-upon sentence of 19 years to life. However, the judge did not verbally mention the mandatory surcharge of $150 and a crime victim assistance fee of $2. These fees were included on the written sentencing documents signed by the clerk and the judge.

    Procedural History

    Guerrero appealed, arguing the surcharge and fee should have been pronounced in open court. The Appellate Division affirmed his conviction and sentence. The New York Court of Appeals granted leave to appeal to review the claim, ultimately affirming the Appellate Division’s order.

    Issue(s)

    Whether the mandatory surcharge and crime victim assistance fee mandated by Penal Law § 60.35(1) are part of a ‘sentence’ that must be pronounced by a judge in the defendant’s presence under CPL §§ 380.20 and 380.40.

    Holding

    No, because the mandatory surcharge and crime victim assistance fee are not considered part of the sentence itself, but rather are additional assessments levied at sentencing.

    Court’s Reasoning

    The Court of Appeals distinguished this case from People v. Sparber, where post-release supervision (PRS) was deemed an element of the sentence because the statute explicitly stated it was ‘a part thereof.’ Here, Penal Law § 60.35(1)(a) states the surcharge and fee are levied ‘in addition to any sentence required or permitted by law,’ indicating they are separate from the sentence itself. The Court also cited People v. Nieves, noting that orders of protection were not considered part of the sentence because the statute didn’t characterize them as such. The court reasoned that the legislative history of § 60.35 supports the view that the surcharge and fee were intended to raise revenue, not to be an additional punishment component. The court emphasized that the statute refers to a ‘surcharge’ or ‘fee,’ not a ‘penalty.’ Originally, the statute was titled ‘Mandatory penalty assessment,’ but the legislature changed it to ‘mandatory surcharge,’ eliminating the implication that it was punitive. The court quoted the legislative memo stating the change aimed to correct problems raised by attorneys and judges, clarifying implementation and minimizing confusion. In essence, the Court focused on the explicit language of the statute and its legislative intent to determine whether the surcharge and fee were integral to the sentence or merely ancillary financial obligations. They stated, “there shall be levied at sentencing a mandatory surcharge, sex offender registration fee, DNA databank fee and a crime victim assistance fee in addition to any sentence required or permitted by law (emphasis added), rather than as ‘a part’ of the sentence itself”.

  • People v. Sparber, 10 N.Y.3d 457 (2008): Consequences for Failure to Pronounce Post-Release Supervision at Sentencing

    10 N.Y.3d 457 (2008)

    When a sentencing court fails to pronounce a mandatory or discretionary term of post-release supervision (PRS) during sentencing, the proper remedy is to remit the case for resentencing so the court can properly pronounce the PRS term, rather than striking the PRS term altogether.

    Summary

    This case addresses the remedy when a sentencing court fails to pronounce a term of post-release supervision (PRS) as required by New York law. Several defendants argued that their PRS terms should be stricken because the sentencing courts did not orally pronounce them. The New York Court of Appeals held that the failure to pronounce the PRS term was a procedural error, but the correct remedy is resentencing to allow the court to properly pronounce the PRS term. Striking the PRS term would result in a sentence not contemplated by statute.

    Facts

    Five defendants were convicted of violent felonies. Under New York law, these convictions required a term of post-release supervision (PRS). In some cases, the PRS term was mandatory, while in others, the court had discretion to set the length of the PRS term within a statutory range. In all five cases, the sentencing courts failed to orally pronounce the PRS term during the sentencing hearing. In some cases, the PRS term was noted on court worksheets or commitment sheets, but not stated aloud in court. Defendant Sparber disavowed vacating his plea, seeking only to strike the PRS term.

    Procedural History

    In all five cases, the defendants appealed, arguing that the PRS term should be stricken from their sentences because it was not orally pronounced by the sentencing court. The Appellate Division rejected these arguments, holding that the PRS term was included by operation of law and that the clerk’s entry of the PRS term on the commitment sheet satisfied due process requirements. The Court of Appeals granted leave to appeal in all five cases.

    Issue(s)

    1. Whether a sentencing court’s failure to orally pronounce a term of post-release supervision (PRS) at the time of sentencing entitles the defendant to have the PRS term stricken from the sentence.

    2. Whether notation of the PRS term on court worksheets or commitment sheets, without oral pronouncement, constitutes a proper sentencing pronouncement.

    Holding

    1. No, because striking the PRS term would result in a sentence that does not comply with the statutory requirements for violent felony offenses.

    2. No, because sentencing is a uniquely judicial responsibility that must be carried out by the court in the defendant’s presence.

    Court’s Reasoning

    The Court of Appeals reasoned that Penal Law §§ 70.00(6) and 70.45(1) mandate a period of PRS for violent felony offenses, and CPL §§ 380.20 and 380.40 require the court to pronounce the sentence in the defendant’s presence. The court emphasized that sentencing is a judicial responsibility, not a clerical one, and that the PRS term must be orally pronounced to ensure transparency and allow the defendant to understand the full consequences of their conviction. The Court rejected the argument that notations on worksheets or commitment sheets could substitute for oral pronouncement. Citing People v. Sturgis, 69 N.Y.2d 816, 818 (1987), the court noted that where a sentence violates CPL 380.20, the proper remedy is vacatur of the sentence and remitter for resentencing.

    The Court stated, “These concerns are particularly acute where, as in the case of defendant Rodriguez, the PRS term may vary and must be set at the court’s discretion (see e.g. Penal Law § 70.45 [2] [b]-[f]). And, even in cases with mandatory PRS terms, the defendant still has a statutory right to hear the court’s pronouncement as to what the entire sentence encompasses, directly from the court.”

  • People v. Zimmerman, 9 N.Y.3d 421 (2007): Establishing County Jurisdiction Based on ‘Particular Effect’

    9 N.Y.3d 421 (2007)

    For a county to assert criminal jurisdiction over an offense based on its ‘particular effect’ under CPL 20.40(2)(c), the defendant must have intended or known that their actions would have a materially harmful impact on the governmental processes or community welfare of that specific county.

    Summary

    The New York Court of Appeals held that New York County lacked jurisdiction to prosecute James Zimmerman for perjury. Zimmerman, while testifying in Ohio as part of a New York Attorney General’s antitrust investigation, allegedly made false statements. The court reasoned that the evidence presented to the grand jury did not establish that Zimmerman intended or knew his statements would have a concrete and identifiable injury to either New York County’s governmental processes or its community welfare. This case highlights the difficulty in establishing county jurisdiction when the impact of an out-of-state action is primarily felt at the state level.

    Facts

    The New York Attorney General investigated Federated Department Stores and others for antitrust violations. James Zimmerman, Federated’s CEO, testified in Ohio during the investigation. The Attorney General’s office had agreed to examine Zimmerman in Cincinnati as an accommodation. Subsequently, Zimmerman was indicted in New York County for perjury based on his testimony. The indictment alleged that his perjury was intended to prevent a particular effect in New York County and State.

    Procedural History

    The Supreme Court dismissed the indictment, finding that Zimmerman’s acts had no ‘particular effect’ on New York County. The Appellate Division affirmed, holding that the evidence did not show that Zimmerman was aware his statements would have a deleterious effect on the governmental or judicial processes of New York County. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the evidence presented to the grand jury established that Zimmerman’s alleged perjury in Ohio had, or was likely to have, a particular effect upon New York County, such that New York County has jurisdiction to prosecute him for perjury under CPL 20.40(2)(c).

    Holding

    No, because the evidence presented to the grand jury did not establish that Zimmerman intended or knew that his alleged perjurious statements would have a concrete and identifiable injury to either New York County’s governmental processes or the welfare of the County’s community.

    Court’s Reasoning

    The Court of Appeals emphasized that for prosecutorial jurisdiction to lie in New York County, that county must suffer a particular effect as a result of the defendant’s alleged conduct. This requires a concrete and identifiable injury to either the county’s governmental processes or the welfare of the county’s community. The impact must be more than minor or incidental, harming the well-being of the community as a whole. The court found no evidence that Zimmerman intended or knew his actions would materially and harmfully affect New York County’s judicial processes. While Zimmerman’s perjury may have been designed to mislead the New York State Attorney General and frustrate his investigation, there was no evidence that Zimmerman’s conduct was intended to have, or was likely to have, any materially harmful impact on the governmental processes or community welfare of New York County specifically. The Court acknowledged a gap in the ‘particular effect’ venue statutory scheme, highlighting that while the State had jurisdiction, no county did. The Court noted, “[a]bsent [a] statutory exception, … the territorial unit for criminal prosecutions is [a] county”.