Appellate Report

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As no objection or motion to withdraw the plea, CPL 220.60(3), was lodged, any argument that the plea was involuntary was unpreserved. See, People v. Williams, 27 NY3d 212, 221-222 (2016). Not properly preserving issues breeds speculation at the appellate level. See, fn 4 (discussing same). The illegal sentence exception to the preservation rule, People v. Samms, 95 NY2d 52, 56 (2000), was inapplicable. If there are other issues outside of the record… you guessed it… the defendant needs to file a CPL 440 motion.

In dissent, Judge Rivera opined dismissal was the proper remedy, as the defendant did all that was asked of him to secure this bargained-for-sentence. No penological purpose is served by merely remitting the matter. Indeed, Mr. Bush had no practical opportunity to object, as he was only informed within minutes of the lower court imposing a harsher term, i.e., a oneyear conditional discharge. At sentencing, the court stated, “I’m glad you did the [CS], and I’m glad the case is over.” The error was not clear from the record and did not constitute sufficient notice. The court must advise defendants of direct consequences of the plea, including the sentence. See generally, People v. Harnett, 167 NY3d 200, 205 (2011). The defendant’s due process rights were violated, as he was unaware at the time of his plea of the additional conditional discharge term to be imposed at sentencing. See generally, Catu, 4 NY3d at 245 (addressing PRS requirement). The integrity of the system is threatened when the government reneges on a plea bargain, which is essentially a contract. Our system relies on what the parties and the court “understand and state” on the record.

April 21, 2022

People v. Carman

38 NY3d 972

This is a 5 to 2 memorandum, affirming the AD. Without deciding whether the right to meaningful and effective assistance of counsel applies in SORA (Correction Law article 6-C) proceedings in general, the majority concluded the defendant failed to establish he was deprived of this right. People v. Benevento, 91 NY2d 708, 712 (1998). Judges Rivera and Wilson dissented for the reasons set out in the AD’s dissent. See, People v. Carman, 194 AD3d 760, 763-767 (2d Dep’t 2021) (Barros, J., dissenting) (describing how assigned counsel failed to even request a downward departure during the SORA proceedings).

April 26, 2022

People v. Easley

38 NY3d 1010

This is a 4 to 3 memorandum, with Judge Rivera authoring the dissent, joined by Judges Wilson and Troutman. The AD is affirmed. The trial court abused its discretion by admitting Forensic Statistical Tool (“FST”) low copy number (“LCN”) DNA evidence without conducting a Frye hearing. See, People v. Foster-Bey, 35 NY3d 959 (2020); People v. Williams, 35 NY3d 24 (2020). FST is a DNA analysis method developed by the NYC Office of Chief Medical Examiner (“OCME”). The People’s proof was overwhelming, however, making the error harmless. People v. Crimmins, 36 NY2d 230, 241242 (1975).

In dissent, Judge Rivera opined the circumstantial evidence purportedly establishing the defendant’s guilt was far from overwhelming. The defendant was convicted of CPW regarding a gun found between boxes on a deli store shelf during an attack on defendant by several unidentified individuals. But the prosecution carries a heavy burden in establishing constructive possession. Here, no one witnessed the defendant possess the gun. There were, however, three DNA contributors on the trigger of the gun, including the defendant. Still, there was no blood or fingerprint related testimony. Nor did the defendant make any admissions. The store surveillance video merely showed the defendant to be in the physical proximity of the gun, along with numerous other individuals in this chaotic and violent episode.

People v. Dawson

38 NY3d 1055

This is a brief 5 to 2 memorandum, affirming the AD. Judge Wilson authored an extensive dissent, joined by Judge Rivera. While a defendant in custody who unequivocally requests an attorney may only waive that right in the presence of counsel, the majority deemed the issue here a mixed question of law and fact. At bar, there was record support for the lower court’s denial of defendant’s suppression motion.

The dissent, however, saw it differently. As Judge Wilson observed, the 19-yearold defendant was brought to the police station in handcuffs and had his cell phone confiscated. His leg was shackled to a chair. He waited in isolation for two hours before a detective entered the small interrogation room to inform the defendant of why he was there.

A verbatim account from the video-taped interrogation was provided by the dissent, including the Mirandized defendant asking the police for his phone back so he could contact his attorney. As counsel’s number was in his phone, the defendant specifically requested the opportunity

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