I've added five new blawgs over to the left: A Public Defender, Arbitrary & Capricious, Crimlaw, CrimProf Blog, and Fourth Amendment. The Fourth Department's next term is not until September, but I will try to post fresh content periodically during the remaining summer months.
Monday, July 11, 2005
June 2005 Term: Unofficial Stats
Here are my unofficial stats for the Fourth Department's June 2005 term, based on the cases posted on the Court's website:
Total criminal cases decided: 44
Reversals or modifications: 6
Of those six reversals, one was a People's appeal. (See People v Forsythe[County Court erred in finding insufficient evidence before grand jury to support indictment].) Here are the other reversals of note:
People v Santiago: Fourth Department reduced Defendant's SORA risk classification reduced in the interest of justice from "3" to "2", where defendant's lone sex crime conviction was a Rape 3rd, and the "record establishes . . . that the victim willingly engaged in sexual activity with defendant at a time when she was only a few months from the age of 17."
People v Vogel: finding, as a matter of discretion and in the interest of justice, that defendant's sentence would be vacated and the matter remanded for resentencing where the People agreed not to make a sentencing recommendation and "they failed to honor that agreement at the time of sentencing." Judge Scudder dissented, arguing that 1) defendant's waiver of the right to appeal encompassed the issue raised by defendant, 2) the issue was not preserved, and he would not reach it in the interest of justice, and 3) the prosecutor's promise not to make a sentence recommendation was made in a letter conveying the plea offer, and was not subsequently put on the record, and thus was not part of the plea agreement.
People v Goodwill: defendant allowed to withdraw his guilty plea where the lower court did not advise the defendant "of the mandatory period of postrelease supervision, which is 'a direct consequence of his conviction.'"
The only other decision from the June packet deserving mention is People v Young. Defendant's robbery and burglary convictions had previously been reversed on the ground that defendant had been selected as the result of an unduly suggestive lineup procedure, and the matter was remanded for a hearing to determine if the eyewitness had an independent basis for her identification of defendant. On remand, the lower court determined that such an independent basis existed, and a majority of the Fourth Department agreed, finding "that, although defendant's face was partially covered, she had a clear view of defendant's eyes in well-lit conditions for approximately 5 to 7 minutes and that she studied his face in an effort to determine whether he was someone she knew." (Young at 1.)
Judges Hurlbutt and Gorski dissented, arguing that the People failed their burden to prove an independent basis by, 1) the suspects face was mostly covered during the incident, 2) the witness could not even help the police construct a composite sketch of the suspect immediately after the incident, 3) the witness could not pick defendant out of a photo array conducted a month after the incident. (Young at 1-2.) Based on these facts, the dissenters would have found that "the inability of the victim to assist the police in constructing a composite of the intruder and her inability to select defendant from a photo array prior to the lineup identification procedure strongly suggest that her alleged independent 'recollection' of defendant was irrevocably tainted by her having viewed defendant in the lineup and having heard him speak. We therefore must conclude that any in-court identification testimony by the victim 'would be derived from exploitation of the illegal arrest'". (Id.
The majority's opinion in Young reaffirms how weak eyewitness identification issues have become for criminal defendants. Even if an identification procedure is conducted that is clearly suggestive and thereby taints an eyewitness' in-court identification of a defendant, almost anything qualifies as an "independent basis" for the identification sufficient to render the unduly suggestive procedure supposedly 'harmless.'
Tuesday, July 05, 2005
In my haste to get a jump on the 4th of July holiday weekend, I forgot that the Fourth Department was handing down decisions for the June term last Friday. The Fourth does not hear oral argument for the June term, so all cases must be submitted and usually there aren't too many cases of significance in the packet. Nonetheless, I'll review the criminal cases in the next day or so and highlight anything interesting.
For Miranda taint, "single continuous chain of events" gets a whole lot shorter: Court of Appeals guts Chapple/Bethea
People v Paulman, 2005 NY Slip Op 05452
The United States Supreme Court has held that in most cases Miranda warnings alone are sufficient to dispel the taint of a prior unwarned statement. (People v Paulman, 2005 NY Slip Op 05452.) New York does not follow the Supremes on this issue. Interpreting the New York constitution, the Court of Appeals has long held that the right to remain silent "would have little deterrent effect if the police know that they can as part of a continuous chain of events question a suspect in custody without warning, provided only they thereafter question him or her again after warnings have been given." (People v Bethea, 67 NY2d 364, 366 .) In New York, Miranda warnings must "precede the subjection of a defendant to questioning. Later is too late, unless there is such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning." (People v Chapple, 38 NY2d 112, 115 .)
Although the Court of Appeals stopped short of overturning Bethea and adopting the Supreme Court's position on this issue, this past Wednesday's opinion in People v Paulman weakens the Chapple/Bethea doctrine substantially. Defendant in Paulman was taken to the police station and was asked to write out a statement, without first being Mirandized. He finished giving the first written statement at about 3:30 a.m. At 4:00 a.m., defendant was taken to an office in the same barracks and given his Miranda warnings, and then gave another written statement. The Court of Appeals affirmed the Appellate Division's holding that the first, un-Mirandized statement should have been suppressed, but found that "there was a sufficiently 'definite, pronounced break in the interrogation' to dissipate the taint from the Miranda violation . . . [and] the Mirandized statement is admissible at trial despite the prior, unwarned statement." (Paulman at 20.) The Court noted the general factors usually considered to determine if there is a sufficient break in interrogation:
to determine whether there is a "single continuous chain of events" under Chapple, New York courts have considered a number of factors, including the time differential between the Miranda violation and subsequent admission; whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether, prior to the Miranda violation, defendant had indicated a willingness to speak to police. No one fact is determinative and each case must be viewed on its unique facts.
(Paulman at 20.)
Paulman is such a significant decision not because it sets out new Chapple factors, but rather in the way the Court applies the factors. The Paulman Court found 30 minutes a sufficient lapse to dispel the taint of the first un-warned statement; the Fourth Department has previously found an interval of almost twice as long insufficient to attenuate subsequent statements. (People v Jordan, 190 AD2d 990, 991 [4th Dept 1993].) Another factor cited by the Paulman Court was that the two interviews "took place in different locations"--this is technically true, but the "different location" was an office in the same police station where the initial un-warned statement was given. Again, the Fourth Department has previously found a subsequent statement not sufficiently attenuated from the first where the original un-Mirandized statement was given at the crime scene and the subsequent statement was taken at the police station (see Jordan, supra), and I am aware of no case where a "different location" for purposes of a Chapple analysis was down the hall from the location where the original, un-warned statement was given.
The Court of Appeals also seemed to give great weight to the fact that the two "methods of eliciting information" were different between the un-warned statement and the subsequent interview, holding "a reasonable suspect in defendant's position would have perceived a marked change in the tenor of his engagement with police." (Paulman at 21.) This has never before been the standard to determine if a sufficient break has occurred to find subsequent Miranda warnings have dispelled the taint of the original un-warned statement. Chapple requires "such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning." (Chapple, 38 NY2d 112, 115 .) It is hard to see how a marked increase in the intensity of questioning can count as a "pronounced break" in the interrogation.
Indeed, Paulman seems to stretch Chapple/Bethea almost to the breaking point. It is hard to escape the conclusion that the Court of Appeals is retreating from the state constitutional protections against self-incrimination found in Chapple/Bethea, interpreting their previous precedents in such a way as to read out any meaningful safeguards.