Stats & Case Summaries - Fourth Department Decisions Released on May 2, 2014

Criminal Case Summaries:

·       People v Aung (KA 12-01740) – 4AD reverses D’s guilty plea to attempted strangulation in the second degree. The superior court information to which D pled was jurisdictionally defective, because the two counts it contained were not contained in the felony complaint, nor were they lesser included offenses of the charges in the felony complaint. The defect in the SCI did not require preservation, and survived D’s waiver of the right to appeal and his plea of guilty.

·       People v Becoats (KA 13-00671) – 4AD reverses the lower court’s denial of D’s CPL 440 motion, and remits for a hearing on the motion. D alleged that his trial attorney was ineffective because he failed to take adequate steps to secure the appearance of a federal prisoner to testify at his trial. The lower court agreed that there was no strategic basis for counsel’s failure. 4AD explains that a hearing is required because there is a question of fact regarding whether counsel’s error prejudiced D’s right to a fair trial. 4AD also finds that, in light of the statements by the federal prisoner that exculpated D, a hearing is also required to assess the credibility of D’s codefendant who, in a recent plea colloquy, stated that D was not involved in the subject crime.

·       People v Mack (KA 09-01764) – 4AD reverses D’s conviction because the lower court failed to respond to a jury note before it accepted the jury’s verdict. The court gave counsel notice of three separate notes and indicated how it would respond, but the jury indicated it reached a verdict before the court responded. 4AD explains that the jury might have resolved the factual issue that was the subject of one of the notes, but D was “seriously prejudiced” by the lower court’s failure to answer the note that asked the court to repeat legal instructions. The court’s failure to respond constituted a mode of proceedings error that did not require objection.

Justice Lindley dissented, concluding that the jury impliedly rescinded its questions by reaching a verdict before the court responded to its notes. Justice Lindley also argues that the issue is not preserved, because defense counsel was in a position to object to the court’s failure to answer the jury’s questions before taking the verdict.

·       People v Middlebrooks (KA 12-00342) – 4AD finds that remittal is not required due to the lower court’s failure to determine whether D should be adjudicated a youthful offender. D was convicted of robbery in the first degree, an “armed felony”, and was eligible for youthful offender treatment only if mitigating circumstances were present, or D was only a minor participant in the crime. 4AD explains that D offered no evidence of mitigating circumstances or his relatively minor participation in the crime. 4AD thus concludes that D was not eligible for youthful offender treatment, and the lower court was not required to make a determination as to whether he should be afforded such treatment. Note: A split regarding this issue appears to be forming in the Appellate Divisions (compare People v Flores, __ AD3d __ 2014 NY Slip Op 2884 [1st Dept 2014] with People v Woullard, __ AD3d __, 2014 NY Slip Op 1637 [3d Dept 2014]).