CAL in the Courts

The postings below present recent noteworthy CAL court appearances and case outcomes. Please use the Contact Us inquiry form if you'd like further information about any of these cases.

Convictions Reversed, Evidence Suppressed, and a New Trial Ordered in CAL Client’s Case

On December 5, the Appellate Term, First Department, reversed J.W.’s convictions for third-degree sexual abuse and forcible touching, suppressed unconstitutionally obtained evidence, and remanded J.W.’s case for a new trial. Before J.W.’s trial, the trial court held that he was subjected to an unduly suggestive show-up procedure near the scene of the alleged crimes. Then, exclusively on the hearsay testimony of a responding officer, the trial court held that, despite the unduly suggestive show-up procedure, the complainant had a basis for identifying J.W. in court. The complainant did not testify at the pre-trial hearing to establish that basis, however. This was reversible error.

In addition, the Appellate Term held that the police unconstitutionally trespassed into J.W.’s apartment, where the police stepped across his threshold without a warrant, invitation, or exigent circumstances, and then began questioning him. The Appellate Term suppressed all of the statements J.W. made in his apartment as fruits of that unconstitutional trespass. Scott H. Henney represented J.W. on appeal.
NYCA Expands Right to Jury Trial for Immigrants Charged with Misdemeanors
In People v. Suazo, the Court of Appeals held that a noncitizen defendant who demonstrates that a charged crime carries the potential penalty of deportation is entitled to a jury trial even if the potential incarceratory sentence is less than six months, the presumptive dividing line between serious and petty offenses under the Sixth Amendment. New York City defendants, unlike those in the rest of the State (and much of the country), are not statutorily entitled to jury trials if they are charged with nothing more serious than class-B misdemeanors. CPL 340.40(1). The Sixth Amendment right to a jury trial does not automatically attach to those charged with class-B misdemeanors, because the maximum Penal Law sentence is 90 days’ incarceration. Under the Sixth Amendment, crimes with a maximum sentence of six months or less are presumptively not entitled to a jury trial. CAL argued, and the Court agreed, that the crimes for which Mr. Suazo was charged—class-B misdemeanors—were nonetheless serious within the meaning of the Sixth Amendment because they might cause him to be deported: defendant “met his burden of establishing that the crimes carry an additional penalty beyond incarceration—namely, deportation—which he contends is a sufficiently severe penalty to rebut the presumption that the crimes are petty for Sixth Amendment purposes. 
AD1 Remits for Hearing on Counsel's on the Record Misadvice

After finding that counsel’s on-the-record immigration advice was mistaken, the Appellate Division, First Department remitted G.J.’s case to trial court for a prejudice hearing to determine whether his plea should be withdrawn. During the plea colloquy, defense counsel reported to the court that he had told G.J. that G.J. would “probably very well end up being deported” if he pleaded guilty. Building on a line of cases pioneered by CAL, the court held that, because G.J. was preparing to plead guilty to a crime that would result in mandatory deportation, counsel’s advice that deportation was merely probable was a misrepresentation of G.J.’s plea’s legal consequences. G.J. was represented by Scott Henney during oral argument. Samuel Steinbock-Pratt authored the appellant’s brief.

Conviction Vacated in Buy-and-Bust Case
Our client, G.H. was convicted after trial of criminal sale of a controlled substance in the third degree following a buy-and-bust operation.  G.H., who testified at trial, maintained that he had not intended to sell drugs to the undercover but planned to share them with him.  The undercover then grabbed the drugs and threw money in G.H.’s direction.  Our office’s investigation revealed that the officers on the team involved in G.H.’s arrest had more than 40 civil suits alleging misconduct filed against them, none of which were disclosed as Brady material.  In response to a C.P.L. 440.10 motion asserting a Brady violation, the District Attorney’s Office conceded that they knew about 17 of those lawsuits.  Finding these civil suits to be favorable material suppressed by the prosecutor, the Supreme Court, New York County granted the motion and vacated G.H.’s conviction.  Alexandra Mitter and David Bernstein represented G.H.
Client with Sexual Offender Status has Risk Level Reduced
Mr. O. was convicted of a sexual offense as a young teenager in the mid-1980s, and when the Sex Offender Registration Act came into effect in 1996 he was given the highest registration level.  In the years since, however, he conquered his long-term drug addiction, married, and maintained steady housing and family support.  He has remained free of any arrests for the past decade, and has not committed a sexual offense in the 33 years since his original arrest.  Mr. O. was also diagnosed with a degenerative disease, which made the requirement shared by all Level 3 registrants to report to an office in downtown Manhattan every 90 days particularly onerous.  With the considered consent of the Bronx District Attorney’s Office, Mr. O’s level was reduced all the way to the lowest level, Level 1, to reflect his extremely low likelihood of committing a sexual offense. Mr. O. was represented by Molly Schindler.
Criminal Mischief and Graffiti Charges Dismissed in Full
After CAL client C.M. argued to the Appellate Term, First Department, that the plea court never advised her of the rights she would be relinquishing by pleading guilty to fourth-degree criminal mischief, the court reversed her conviction on September 14, 2018. Ms. M had been accused of scrawling a phrase in Sharpie on a traffic barricade, and the court agreed that no penological purpose would be served by remanding the case for a new trial. Instead, it dismissed the accusatory instrument, which charged criminal mischief and making graffiti, in full. Kate Skolnick represented C.M.
Client Granted Peque Hearing
On June 14, 2018, the Appellate Division, First Department remanded our client R.D.’s case for a hearing to afford him the opportunity to move to vacate his plea pursuant to People v. Peque, 22 N.Y.3d 168 (2013).  The Appellate Division held that the trial court had failed to provide the proper warning pursuant to Peque because at the plea proceeding the court only asked counsel whether counsel had discussed the immigration consequences with his client and counsel responded with incorrect advice.  The Appellate Division held that R.D. is entitled to the opportunity to demonstrate prejudice resulting from this failure.  R.D. is represented by Allison Kahl.
Client's Conviction Vacated Based on Immigration Misadvice
On May 18, 2018, the Supreme Court, Bronx County, vacated our client E.G.’s conviction, finding that he was deprived of his right to constitutionally effective representation.  After E.G. was arrested and incarcerated at Rikers Island for 42 months awaiting trial, he agreed to plead guilty to second-degree assault because his attorney assured him that the promised 364-day sentence might give him a basis to defend himself from deportation because he was a lawful permanent resident.  This was clearly expressed and repeatedly referenced throughout the plea proceeding.  Unfortunately, counsel was wrong and the plea subjected E.G. to mandatory deportation.  The Supreme Court vacated the conviction and ordered that the case be restored to the court’s calendar for new proceedings.  E.G. was represented by David Bernstein.
AD1 Unanimously Reverses Conviction and Dismisses Indictment
On May 10, 2018, the Appellate Division, First Department unanimously reversed our client M.V.'s conviction and dismissed the indictment against him. The court held that criminal contempt for violating a stay-away order repeatedly, over nearly two months, could not be charged as a single crime. Each violation was a distinct crime and had to be charged separately. The indictment's defect was apparent "in the language of the indictment itself, and it did not depend on the trial evidence or the court's charge." M.V. was represented by Scott Henney and Matthew Bova.
Appellate Division Rules That Expectation of Privacy Extends to Public Restrooms
On May 10, 2018, the Appellate Division, First Department held that our client T.V. had a reasonable expectation of privacy in a public single-use restroom, such that police officers needed probable cause to justify their entry into the restroom. The suppression court had ruled both that no expectation of privacy existed because T.V. had left the door unlocked, and that the officers could enter the restroom without probable cause. The First Department rejected this conclusion, explaining that the unlocked door did not forfeit the expectation of privacy that T.V. created by shutting the restroom door. Since the lower court did not reach probable cause in denying suppression, the First Department held the appeal in abeyance and remitted the case to the lower court for a determination on that issue. T.V. was represented by Jacqueline Meese-Martinez.