CA: statement made by assault victim in response to officer in "emergency" setting is not "testimonial" hearsay

People v Bradley, 2006 NY Slip Op 09501 [available here]

Responding to a 911 report of an assault, an officer arrived at "the door of an apartment and was met there by [the victim], who was visibly shaken, had blood on her face and clothing, was bleeding profusely from one hand, and walked with a noticeable limp." (Bradley, 2006 NY Slip Op 09501.) The officer "asked her what happened", and the victim told the officer that "her boyfriend threw her through a glass door." (Id.) The Court of Appeals held that the victim's response to the officer's question was not testimonial hearsay under Crawford v Washington and its more recent progeny because the "primary purpose of the interrogation [was] to enable police assistance to meet an ongoing emergency" and was not the product of a structured police questioning designed to generate evidence for a criminal prosecution. (Id., citing Davis v Washington, 126 S Ct 2266 [2006] [bracketed material in original].) After first discussing the Supreme Court's recent decision in Hammon (statements were considered "testimonial" when made by assault victim during detailed interview conducted after the crime was completed and the situation was secure) and Davis (statements made to 911 operator describing ongoing assault were not testimonial), the Court held that the statements at issue fell closer to the Davis "ongoing-emergency"-type scenario and were thus not testimonial:

The facts of this case are between those in Davis and Hammon: [the victim] was neither describing a present event as it occurred, nor responding to detailed questioning in a calm, secure setting. But under the test the Supreme Court stated in Davis, [the victim's] statement was clearly not testimonial. It was "made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation [was] to enable police assistance to meet an ongoing emergency."

When [the officer], responding to a 911 call, arrived at [the victim's] door and was met by an emotionally upset woman smeared with blood, his first concern could only be for her safety. His immediate task was to find out what had caused the injuries so that he could decide what, if any, action was necessary to prevent further harm. Asking [the victim] "what happened" was a normal and appropriate way to begin that task, and the officer promptly entered the apartment, as an officer dealing with an emergency would be expected to do.

(Id. at __.)

The Bradley decision is a relatively straight-forward application of the federal confrontation clause as re-interpreted by Crawford, Davis, and Hammond. Of particular interest is that the Bradley Court, while acknowledging that the appellant was basing his arguments on both the federal Constitution and the New York Constitution and its confrontation clause, also noted that appellant "does not suggest that the two be interpreted differently, and we therefore accept the holdings of Crawford and Davis as the basis for our decision under both Constitutions." (Id. at __.) It would be interesting to see what the Court of Appeals would do with an argument that the State Constitution affords greater protections under its Confrontation Clause than does the federal Constitution, and therefore the definition of "testimonial" should be broader under the State Constitution. The Court of Appeals might be tempted to set its own (broader) definition of "testimonial" as a practical matter, if for no other reason than to bring stability to this area of law and insulate the courts of New York from the periodic disruptive refinements of the "testimonial" standard that emanate from the United States Supreme Court.

AD4: restitution must be part of plea agreement

People v Kistner, 2006 NY Slip Op 08516 [available here]

People v Appleberry, 2006 NY Slip Op 08434 [available here]

If a defendant is sentenced to pay restitution that was not included as a term of his or her guilty plea, then the plea must be vacated and the matter remanded to give the defendant an opportunity to withdraw the plea. (See Kistner, 2006 NY Slip Op 08516; Appleberry, 2006 NY Slip Op 08434.) This issue survives a waiver of the right to appeal, and it remains one of the few issues that the Fourth Department will reliably reach in the interest of justice. (See id.)

AD4: defendant’s statement that he was acting “in self-defense” during plea colloquy required further inquiry

People v Ponder, 2006 NY Slip Op 08513 [available here]

During his colloquy upon a guilty plea to Assault in the First Degree, the defendant “stated that the victim, without any provocation by defendant, struck defendant in the head with a bottle and put him in a choke hold. Defendant stated that, ‘in self-defense,’ he pulled out a gun and fired, but stated that he did not intend to shoot the victim.” (Ponder, 2006 NY Slip Op 08513.) Although defendant did not make a motion to vacate his plea, the Fourth Department nevertheless reversed, agreeing that

this is one of those rare cases where preservation is not required because “the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea”. […] Defendant’s colloquy negated the essential element of intent and also raised the possibility of a justification defense. Thus, the court had a “duty to inquire further to ensure that defendant’s guilty plea [was] knowing and voluntary.”

(Id. at __.)

It is incredible that the trial court did not try to clean up this plea colloquy before accepting the guilty plea.

AD4: fingerprint affidavit not admissible at PVFO hearing

People v Wright, 2006 NY Slip Op 08459 [available here]

Applying People v Williams (see my previous post here) for the first time, the Fourth Department holds in Wright that “the court erred in admitting the affidavit of the People’s fingerprint expert at his persistent felony offender hearing.” (See Wright, 2006 NY Slip Op 08459, citing Crawford v Washington, 541 US 36, 51-52.) Unfortunately and also like in Williams, the court found that the remaining proof was sufficient to establish the defendant’s prior felony convictions. (Id.)

AD4: testimony that officer was disoriented, “saw stars” and was in “great pain” enough to establish physical injury element of assault conviction

People v Gerecke, 2006 NY Slip Op 08441 [available here]

The People can sustain a conviction for Assault in the Second Degree by establishing that the alleged assault victim suffered a “physical injury”; a “physical injury” is defined in part as an injury causing “substantial pain.” (See Gerecke, 2006 NY Slip Op 08441.) In Gerecke, the assault victim was a police officer, who testified that “upon being being struck in the head by defendant, he ‘[saw] stars’ and was temporarily disoriented . . . [h]e further testified that it was the hardest blow that he had ever sustained and that he was in great pain.” (Id.) This would seem fairly flimsy proof to sustain an assault conviction--appellate courts usually require a bit more to establish a physical injury. (See, e.g. People v Rodriguez, 158 AD2d 376 [1st Dept 1990].) But the Fourth Department held the cop’s testimony was sufficient:

We conclude that the jury was entitled to credit the testimony of the officer and thus to find that he suffered substantial pain. The failure of the officer to seek medical treatment or to take off any time from work is not dispositive in determining whether he sustained a physical injury, inasmuch as “pain is subjective and different persons tolerate it differently.”

(Id. [citations omitted].)

The Court did hold that defendant’s conviction for Obstructing Governmental Administration in the Second Degree was not supported by legally sufficient evidence, where the indictment and bill of particulars alleged that the defendant interfered with an officer attempting to arrest the defendant’s “son Brandon”, and the proof at trial established that the police were in fact trying to arrest someone other than Brandon when defendant interfered. (See id.)

AD4: failure to give "limiting instruction with respect to the statement of a nontestifying codefendant" is fundamental error requiring reversal

People v Pichardo, 2006 NY Slip Op 08390 [available here]

At his trial on drug charges, the People offered and the trial court received the statement of a non-testifying co-defendant as evidence against defendant. No limiting instruction was requested, and none was given. Characterizing the failure to give a limiting instruction in this situation as "fundamental error", the Fourth Department reversed even though the instruction was not requested at trial by the defendant. From the decision:

Reversal is required, however, because Supreme Court failed to give a limiting instruction with respect to the statement of a nontestifying codefendant. Even assuming, arguendo, that the statement was admissible, we note that, as the Supreme Court has written, "the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when . . . the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Although defendant did not request a limiting instruction, we conclude under the circumstances of this case that the failure to give such an instruction is a fundamental error that warrants reversal and a new trial.

(Pichardo, 2006 NY Slip Op 08390.)

From a Court usually as preservation-minded as the Fourth Department, it is nice to see a decision characterizing this error as fundamental and therefore not requiring preservation for review.

AD4: removing center console of vehicle does not "impair the structural integrity of vehicle" and is covered by general consent to search

People v Reed 2006 NY Slip Op 08588 [available here]

Over a year ago, the Court of Appeals held that a suspect's general consent to a police vehicle search did not cover police action that impaired the structural integrity of the vehicle. (See People v Gomez, 2005 NY Slip Op 07828 [general consent to search not broad enough to cover police destroying parts of car with a crowbar].) In Reed, the Fourth Department confronted a less egregious fact pattern--rather than destroying parts of the car, the police disassembled the center console of the car by removing some screws, and reassembled the console when the search was complete. The Fourth Department upheld the search on defendant's general consent; from the decision:

Here, defendant gave the police a broad consent to search his "1991 Toyota." Defendant was present during the search of the vehicle and did not object to the scope of the search, nor did the search impair the structural integrity of the vehicle. The record establishes that the police did not break the console in order to search beneath it and that the screws securing the center column, some of which were broken before the police removed them, were not the original screws from the factory where the vehicle was manufactured.

(Reed, 2006 NY Slip Op 08588.)

The Fourth Department has thus set up a distinction between physically "destroying" a car and simply disassembling (and then reassembling) it. I'm not sure this gets at the question, i.e. whether a defendant giving a general consent to search would expect the police to start disassembling his vehicle. Even if the police can and do put the car back together at the end of the search, how far can the police go on a general consent? Under the Fourth Department's reasoning in Reed, there does not seem to be any upper limit on the degree of disassembly covered by a general consent. As long as the police are careful not to break anything and the suspect does not object while the car is being taken apart, it seems under Reed the search would be valid.

AD4: defendant telling police he has "nothing to say" = invoking right to remain silent

People v Reid, 2006 NY Slip Op 08458 [available here]

Upon being Mirandized and asked if he would waive his rights and speak to police, the defendant in Reid said he had "nothing to say." (Reid, 2006 NY Slip Op 08458.) The police pressed on with questioning; the Fourth Department held that defendant's statement (that he had "nothing to say") was the equivalent of invoking his right to remain silent, and the police "failed to 'scrupulously honor []' defendant's right to remain silent" by continuing the interrogation. (Id.) The Fourth Department nevertheless found the error harmless.

AD4: phony spam emails are not "forged instruments" and a computer used to send spam is not a "forgery device"

People v Carmack, 2006 NY Slip Op 08490 [available here]

Taking New York's anti-forgery laws where they were never intended to go, a prosecutor in Erie County charged Mr. Carmack with Forgery in the Second Degree and Criminal Possession of a Forgery Device for sending "multiple emails for his computers [using] a computer program that made it appear that they were sent from the email address of another person or entity." (Carmack, 2006 NY Slip Op 08490.) The emails were pretty typical spam, described by the Court as "solicitations for computer programs, dietary supplements and other products [...]." (Id. at __.)

The Fourth Department rightfully reigned this charging practice in, holding that spam emails "do not constitute deeds, wills, codicils, contracts, assignments, commercial instruments or credit cards" and do not involve any "'legal right, interest, obligation or status'", and therefore do not fall within the statutory definition of a "forged instrument" necessary to sustain a conviction for Forgery in the Second Degree. (See id.; Penal Law 170.10[1].)

The Fourth Department likewise reversed defendant's conviction for Criminal Possession of a Forgery Device, nothing that a device must be "specifically designed for use in counterfeiting or otherwise forging written instruments" to qualify as a "forgery device", and that computers at issue, while capable of being used to generate forged documents, were not specifically designed for that purpose. (See Carmack, 2006 NY Slip Op 08490.)

AD4: massive overkill = intentional killing or no other

People v Rodriguez, 2006 NY Slip Op 08354 [available here]

The defendant in Rodriguez left very little to chance he set out to kill his victim--"the victim was shot twice in the head, stabbed six times in the neck, shoulder and abdomen, and struck 13 times in the head with a hammer, causing four skull fractures . . . after the shootings, stabbings, and beatings, the victim was left alone in a burning house." (Rodriguez, 2006 NY Slip Op 08354.) Given those facts, the Fourth Department had little trouble concluding that this was an intentional killing or no other, and that "County Court erred in submitting the depraved indifference murder count to the jury." (Id.)

CA: plea record must reflect defendant "understood the distinction between the right to appeal and other trial rights"

People v Moyett, 2006 NY Slip Op 08643 [available here]

In a short decision driving home the holding of another recent decision, the Court of Appeals held in Moyett that a defendant's waiver of his right to appeal was not valid where the trial court simply told the defendant, "by pleading guilty you give up your right to appeal the conviction." (Moyett, 2006 NY Slip Op 08643.) This colloquy was insufficient to ensure that the defendant understood that the right to appeal is not simply extinguished upon a plea of guilty, but must be affirmatively waived. From the decision:

Based on this statement, defendant may have erroneously believed that the right to appeal is automatically extinguished upon entry of a guilty plea. Under these circumstances, and absent a written waiver of appeal or some indication in the record that defendant understood the distinction between the right to appeal and other trial rights forfeited incident to a guilty plea, there is inadequate assurance that defendant entered into a knowing, intelligent and voluntary waiver of appeal.

(Id [citations omitted].)

The Moyett decision does little more than apply the Court's recent decision in People v Lopez, where the Court clarified that a plea "record must establish that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty." (People v Lopez, 2006 NY Slip Op 01195.)

AD4: cop giving witness positive post-identification feedback after photo array is a viable Wade issue

People v Williams, 2006 NY Slip Op 08353 [available here]

In People v Williams, the Fourth Department reversed defendant's conviction and remanded for a Wade hearing where the People's 710.30 notice, while giving generic notice of a photo array identification procedure where the witness failed to pick out defendant, failed to disclose that the police detective administering the photo array informed the witness which photograph in the array was the defendant after the procedure was finished. Perhaps the most important part of the decision is the Fourth Department's characterization of the giving of this positive post-array feedback as "improper" police conduct that could potentially taint the reliability of subsequent in-court identification testimony. From the decision:

We agree with defendant that he is entitled to a Wade hearing and a new trial. Here, the People disclosed to defendant in their CPL 710.30 notice that the victim was shown a photo array on one occasion and failed to identify defendant in that array, and County Court refused to conduct a pretrial Wade hearing. At trial, however, the victim testified that she was shown a photo array a second time and, after she failed to identify defendant in that array, a detective informed her which photograph was that of defendant. The victim identified defendant as the perpetrator at trial. Because the People failed to disclose the detective's identification of defendant to the victim in their CPL 710.30 notice, defendant was denied the opportunity, before trial, to test the admissibility of the victim's identification testimony. "The main concern motivating [CPL 710.30] was the possibility, recognized in three [United States] Supreme Court decisions, that pretrial identification procedures could be so suggestive or misleading as to compromise a defendant's constitutional right to due process of law. The danger sought to be avoided is, and always has been, the risk of convicting the innocent through tainted identification procedures". It cannot be gainsaid that the act of the detective in informing the victim which photograph in the array was that of defendant constitutes a tainted identification procedure. We reach this issue as a matter of discretion in the interest of justice despite defendant's failure to seek a midtrial Wade hearing following the victim's testimony regarding the second photo array, particularly in view of the fact that defendant sought a pretrial Wade hearing, and we conclude that defendant is "entitled to a hearing concerning whether the improper [conduct of the detective] affect[ed] the reliability of the victim's in-court identification and render[ed] it inadmissible.' "

(People v Williams, 2006 NY Slip Op 08353 [citations omitted].)

I love this issue--the research is clear the giving a witness post-identification feedback after a photo array (i.e. telling the witness he or she picked the right guy) destroys the reliability of any subsequent identification, and the conduct at issue is completely gratuitous and easily avoided. I posted on the this topic at length here. This is a great issue for trial defense counsel, because police officers do not yet know that this is a live issue, and (if asked) will usually freely admit that they gave positive post-identification feedback.

CA: legal sufficiency arguments not preserved unless TOD renewed at close of all proof

People v Lane, 2006 NY Slip Op 08641 [available here]

Making explicit what was previously somewhat unclear, the Court of Appeals has held in People v Lane that a defendant's legal sufficiency arguments are not properly preserved for appellate review unless a motion for a trial order of dismissal is renewed at the close of all proof. Without much fanfare, the Court simply held,

After defendant presented his own evidence, he did not renew his earlier argument. Consequently, whether the trial evidence was sufficient to support each element of the crime is not a question of law that this Court may review.

(People v Lane, 2006 NY Slip Op 08641 [citations omitted].)

The Court cited to its previous decisions in People v Hines and People v Payne, but neither of those decisions went as far as the Court does in Lane. In Hines, the Court held that the defendant could not argue on appeal that the People's evidence was insufficient to support a verdict where defendant put on proof after the People rested and filled in some gaps in the People's case. In that case, even though the TOD motion was made at the end of the People's case and not thereafter renewed, the reviewing appellate court was obligated to consider the sufficiency of all the evidence (defendant's included) and was not bound to put itself in the shoes of the trial court at the time it decided the TOD motion (i.e. with only the People's evidence to consider). (See Hines, 97 NY2d 56.) The Court's decision in Payne suggested that the issue in Hines was one of waiver, and not preservation--"[w]hen a trial court denies such a motion at the close of the People's case, a defendant who thereafter introduces proof waives the right to have the court consider the motion solely on the basis of the People's evidence." (Payne, 3 NY3d 266.) This is a big distinction--under the "waiver" reasoning of Payne, a defendant who made a TOD motion at the close of the People's case and did not renew after presenting evidence could still press his legal sufficiency arguments on appeal, but would have to base his arguments on the entirety of the proof. The Court's decision in Lane moves away from Payne and clarifies that a defendant who does not renew his TOD motion at the close of all proof is out of luck, and any legal sufficiency arguments are unpreserved for review. A harsh decision, but completely in character for an increasingly preservation-obsessed Court.

The Fourth Department has been interpreting Hines in this manner for some time now, so the moral for Fourth Department criminal defense practicioners is not new--make a specific TOD motion when the People rest and renew it at the close of all proof. (See, e.g., People v Carter, 2006 NY Slip Op 08552 [available here] ["Defendant failed to preserve for our review his contention that the conviction of criminal possession of a weapon is not supported by legally sufficient evidence inasmuch as he failed to make a sufficiently specific motion to dismiss, and he also failed to preserve his contention for our review inasmuch as he failed to renew his motion after presenting evidence."].)

AD4: a rare Batson reversal

People v Wilmot, 2006 NY Slip Op 08391 [available here]

In a rare reversal based on a Batson violation, the Fourth Department held in People v Wilmot that the prosecutor's race-neutral explanation for exercising a peremptory challenge on a black juror--that the jury was young and lacked "lifelong experience"--was "pretextual" where the prosecutor did not challenge other young jurors and where "age" had nothing to do with the case. From the decision:

Following defendant's Batson objection, the prosecutor explained that he was exercising the peremptory challenge because of the age and lack of "lifelong experience" of the juror. "[W]hile age is, facially, a race-neutral reason for a peremptory challenge to a juror, an explanation based upon age can become pretextual if it bears no relationship to the facts of the case . . ., or if other jurors of a similar age are not objected to on that ground." Here, the fact that the prospective juror at issue was 19 years old bore no relationship to the facts of the case. Further, the prosecutor did not exercise a peremptory challenge to exclude a 22-year-old white male prospective juror who had a similar background with respect to his education and living arrangement. We thus conclude that the prosecutor's explanation was pretextual, and we reverse the judgment of conviction and grant a new trial.

(People v Wilmot, 2006 NY Slip Op 08391 [citations omitted].)

This decision points up the importance of a thorough Batson challenge at the trial level--wherever possible, defense counsel should point out that the People's supposed "race neutral" explanation has not been consistently applied by the People.

CA: work release day reporting = "incarceration"

People v Cagle, 20906 NY Slip Op 08633 [available here]

The Court of Appeals holds today that the day reporting (or work release) portion of a defendant's sentence counts as "incarceration", and such periods count as part of the tolling period when calculating the 10 years between felony convictions for purposes of recidivist sentencing. (See People v Cagle, 2006 NY Slip Op 08633.) From the majority decision (written by Chief Judge Kaye):

An inmate in a day-reporting program, under the applicable statutes and regulations, enjoys "extended bounds of confinement." An approved inmate who has successfully participated in a work release program, completed furloughs to an approved residence and is either within six months of becoming eligible for parole or has one year or less to be served under his sentence, may be assigned from a work release facility to a residential treatment facility to participate in a program of continued employment. While residing at an approved residence, the inmate is required to report to the facility or other designated reporting location, to undergo frequent drug tests and, where appropriate, to participate in other rehabilitative programs.

Moreover, before acceptance into a day-reporting program, an inmate must sign both a memorandum of agreement and copy of the day-reporting rules. These documents specify that participation in the program "is a privilege which may be revoked at any time" and that the inmate "remain[s] in the custody of [DOCS]." The program imposes reporting duties and travel restrictions, including prior approval requirements for any method of transportation the inmate uses, for obtaining a driver's license and for having a motor vehicle. Permission is also required before participants take any medication (except in exigent circumstances), obtain a credit card or enter into a contract, and they must surrender the full amount of their employment earnings to the day reporting center for documentation and proper deductions. Thus, inmates in day-reporting programs are merely granted the revocable privilege of serving their sentences of imprisonment under less strict conditions of supervision than other prisoners under lock and key.

Focus on the plain purpose of Penal Law § 70.06 also leads us to reject defendant's argument. The statute is intended "to deter recidivism by enhancing the punishments of those who, having been convicted of felonies, violate the norms of civil society and commit felonies again." To avoid enhanced punishment, prior felons must demonstrate their ability to live within the norms of civil society for ten years. Plainly, time spent serving a sentence of imprisonment does not satisfy this requirement. That the Legislature has spoken in terms of time "incarcerated" does not compel us to limit the term to "behind bars." Rather, we conclude that defendant should be considered incarcerated until he completed his sentence of imprisonment for the prior crime and was released into parole.

(Id. at __.)

Judge Smith dissented, noting that "'incarcerated is not an ambiguous word. It means locked up in prison," and therefore defendants who participate in work release programs and do not commit new felonies while doing so should get credit towards the "ten year between felonies" time period. (Id. at __.)

The majority's opinion affirms the Fourth Department's earlier decision in the case (see my previous post here).

Justice Scudder named presiding justice of the Fourth Department

You can read the Governor's press release annoucing Justice Scudder's promotion here.

CA: Recent "depraved indifference" decisions not retroactive

Policano v Herbert, 2006 NY Slip Op 08284 [available here]

In response to certified questions from the Second Circuit, the Court of Appeals holds that the Court's recent "depraved indifference" decisions--severely narrowing those factual scenarios supporting a "depraved indifference" murder conviction and holding that "depraved indifference" is a culpable mental state--should not be applied retroactively. From the decision:

[W]e must weigh three factors to determine whether a new precedent operates retroactively: the purpose to be served by the new standard; the extent of the reliance by law enforcement authorities on the old standard; and the effect on the administration of justice of a retroactive application of the new standard. The second and third factors are, however, only given substantial weight "when the answer to the retroactivity question is not to be found in the purpose of the new rule itself." "Thus, where otherwise there could be a complete miscarriage of justice, current constitutional standards that go to the heart of a reliable determination of guilt or innocence have been substituted for those in effect at the time of trial."

This is not such a case. The purpose of our new interpretation of "under circumstances evincing a depraved indifference to human life" is to dispel the confusion between intentional and depraved indifference murder, and thus cut off the continuing improper expansion of depraved indifference murder. Moreover, in the words of the concurring judges in Suarez, the goal is to "make future homicide prosecutions more sustainable, increasing the likelihood that defendants who are proven beyond a reasonable doubt to have committed murder will be properly held to account for that crime." Further, "[d]efendants who commit[] vicious crimes but who may have been charged and convicted under the wrong section of the statute are not attractive candidates for collateral relief after their convictions have become final." In short, non-retroactivity poses no danger of a miscarriage of justice.

Finally, the other two Pepper factors strongly favor non-retroactivity. For two decades prosecutors relied on Register's objectively determined degree-of-risk formulation when making their charging decisions. In addition, retroactive application would potentially flood the criminal justice system with CPL 440.10 motions to vacate convictions of culpable intentional murderers who were properly charged and convicted of depraved indifference murder under the law as it existed at the time of their convictions.

(Policano, 2006 NY Slip Op 08284 [2006].)

New decisions from the Fourth Department tomorrow.

CA: City Court jury pools can be comprised of County residents

In re Oglesby v McKinney, 2006 NY Slip Op 08277 [available here]

City court defendants are not entitled to a jury made up solely of city residents; rather, "jurors for a criminal trial in a City Court may be selected from the residents of the county in which the city is located, including those who are not city residents." (Oglesby, 2006 NY Slip Op 08277.) So holds the Court of Appeals, in a decision affirming the Fourth Department (see my previous post here). The Court held that section 500 of the Judiciary Law "clearly does not command that all juries be selected county-wide, it seems to imply that selection from the county will be the norm, to which exceptions are possible." (Id.) The Court also noted that requiring City Court jury pools to be drawn solely from city residents would decrease the number of city residents available for felony jury pools in County Court--"[i]f all City Court jurors had to be Syracuse residents, the likely result would be to divert some Syracuse jurors from felony trial to misdemeanor trials in City Court--to the disappointment of those Syracuse defendants in felony cases who would prefer jurors from their home town." (Id.)

AD3: intoxication can negate "depraved indifference" mental state

People v Coon, 2006 NY Slip Op 07925 [3d Dept 2006] [available here]

Breaking with its prior precedent, the Court of Appeals recently held that "depraved indifference" is a culpable mental state. (See People v Feingold, 2006 NY Slip Op 05233 [previous post here].) In a decision handed down last week, the Third Department held that a necessary implication of the Court of Appeals' holding in Feingold is that intoxication can render a defendant incapable of forming the "depraved indifference" mens rea, and a defendant can now claim intoxication as a partial defense to crimes having "depraved indifference" as the culpable mental state. From the Third Department's decision:

After a nonjury trial, County Court's verdict included findings that defendant failed to prove the defense of mental disease or defect by a preponderance of the evidence, but that because of his voluntary use of crack cocaine, he suffered an atypical idiopathic reaction to the substance such that, at the time of the attack, he was experiencing cocaine intoxication delirium. As a result, County Court found that defendant was unable to form any specific criminal intent necessary to support either the intentional assault or criminal possession of a weapon charges. County Court also found that defendant's actions were reckless and that since voluntary intoxication does not negate recklessness, defendant was guilty of depraved indifference assault. [...]

[A]s defendant was too intoxicated to form a specific criminal intent, he also would be incapable of possessing the culpable mental state necessary to prove depraved indifference.

(Coon, 2006 NY Slip Op 07925.)

The Court also held that, given the nature of the assault (essentially a one-on-one stabbing), the evidence was insufficient to "establish [the] wanton cruelty, brutality or callousness" required for depraved indifference. (Id. at __.)

New decisions from the Fourth Department November 17, 2006.

2d Cir.: Autopsy report not "testimonial" under Crawford v Washington

US v Erbo, 2006 WL 3021118 [2d Cir 2006]

In a disappointing decision, the Second Circuit has held that autopsy reports are not "testimonial" statements within the meaning of Crawford v Washington because the reports can be classified as business records. The Second Circuit Blog has a full analysis of the decision here, and they were kind enough to quote from my previous post on this issue (available here). The language quoted from me by the Second Circuit Blog was taken from a brief where I argued this issue before the Fourth Department; the result in that case was similarly disappointing. (See People v Bryant, 27 AD3d 1124 [available here] [previous post here].)

When it decided People v Goldstein earlier this year, the New York Court of Appeals at least hinted that it would give "testimonial" a broader definition that would seemingly cover autopsy reports . (See People v Goldstein, 6 NY3d 119 [2005] [see my previous post on Goldstein here].) It might be a good idea to start preserving Crawford-type issues in State Constitutional terms, just in case the Court of Appeals decides to afford New York citizens greater protections under the State Confrontation Clause than the Second Circuit has read into the federal clause.

CA: Double jeopardy does not bar retrial where prosecutor's misconduct was not intended to provoke mistrial

In re Gorghan v Patricia DeAngelis, 2006 NY Slip Op 07516 [available here]

Even in cases of extreme and "deplorable" prosecutorial misconduct that results in reversal on appeal, a re-trial is not barred by double jeopardy unless it can be shown the prosecutor "deliberately intended to provoke a mistrial motion." So held the Court of Appeals last week in Gorghan v Patricia DeAngelis. I'm a little late on this one, but Nicole at Sui Generis has a breakdown of the decision here. I have always thought of this rule in terms of Madden football. Say you and your buddy are playing against each other in a game of Madden. The score is tied in the waning moments of the game. If while you are trying to kick the game winning field goal your buddy punches you in the face and causes you to miss, then that's the Gorghan case--your friend cheated, but he did it so he would have a chance to get the ball back and win a close game. The only fair thing to do in that case is to reset the game and play it again, with no punching involved. But what if you are beating your friend 42-0 in the last two minutes of the game, and your friend "accidentally" unplugs the Playstation? That's the Davis v Brown case (cited by the Court in Gorghan), and the proper remedy is to let the all-but-assured victory stand. The cheater does not get a second bite at the apple in that situation.

I can't believe Judge Kaye's decision didn't draw this analogy.

AD4: Legal sufficiency arguments still not preserved unless specific TOD made at end of all proof

People v Saxton, 2006 NY Slip Op 06972 [available here]

People v Smith, 2006 NY Slip Op 06979 [available here]

The Fourth Department continues to interpret People v Hines (97 NY2d 56) strictly, requiring defense counsel to not only make a specific motion for a trial order of dismissal at the end of the People's case, but also requiring that the motion be renewed at the close of all proof. Defense counsel in Saxton was doubly deficient, failing to make the specific argument advanced on appeal and failing to renew his TOD motion at the close of all proof. (Saxton, 2006 NY Slip Op 06972.) The Fourth Department ultimately reversed in Saxton, however, holding it was error for the trial court to summarily deny defense counsel's 330.30 motion where "[t]he sworn allegations in defendant's moving papers that defendant learned after the verdict was rendered that a juror had failed to disclose a past extramarital affair with a witness to the altercation between defendant and the victim required a hearing on the issue whether the juror's alleged misconduct prejudiced a substantial right of defendant." (Saxton, 2006 NY Slip Op 06972.)

AD4: Payroll documents improperly received as "business records", insufficient evidence to support welfare fraud conviction

People v Smith, 2006 NY Slip Op 06944 [available here]

In one of the few reversals from this packet, the Fourth Department reversed a defendant's conviction for welfare fraud based on an improperly admitted payroll document and a lack of evidence on the the amount of welfare benefits actually wrongfully received. A great result for Mr. Smith, no doubt, but the opinion is short on analysis and of thus of limited value as precedent. After stating the requirements for a business record (made in the regular course of business, it is the regular course of the business to make the record, and the record was made contemporaneous with the act), the Court simply concludes that "the People failed to establish both the second and third foundation requirements, and thus the payroll documents were improperly admitted." (People v Smith, 2006 NY Slip Op 06944.) The Court also dismissed certain counts of the indictment on legal sufficiency grounds, holding "the evidence is insufficient to establish the amount that defendant was paid by private employers while he received public assistance benefits, and thus the evidence is insufficient to establish the amount of benefits, if any, improperly received by defendant." (Id.)

AD4: Mere possession of defaced gun sufficient to prove defendant knew gun was defaced

People v Smith, 2006 NY Slip Op 07011 [available here]

To be guilty of Criminal Possession of a Weapon in the Third Degree ("CPW3") under subsection 3 of Penal Law 265.02, a defendant must possess the weapon with knowledge that "the weapon had been defaced." (Penal Law 265.02[3].) The Fourth Department held the defendant's mere possession of the visibly defaced gun was sufficient to establish that he knew it was defaced; from the decision:

[H]ere was no dispute that defendant possessed the defaced revolver on his person and that its condition was visible as he pointed it at the police officer in a shooter's stance. Photographs of the defaced revolver were admitted in evidence, and thus the jury was able to evaluate whether it was possible to possess the revolver without knowledge that its identifying features were illegible. "Generally, possession suffices to permit the inference that the possessor knows what he possesses, especially, but not exclusively, if it is in his [or her] hands". Moreover, "the recent and exclusive possession of the fruits of any crime warrants the inference of guilt, including . . . knowledgeable possession". "[I]t makes no significant difference . . . whether knowledge is presumed by statute or inferred by reasoning without the benefit of statutory presumption". Thus, we conclude that the People presented legally sufficient evidence that defendant knew that the revolver in his possession was defaced.

(Smith, 2006 NY Slip Op 07011.)

Yet another quasi-presumption that mere possession of a gun will give rise to in New York.

CA: Sandoval error subject to harmless error analysis

People v Grant, 2006 NY Slip Op 07394 [available here]

Where the "evidence of a defendant's guilt [is] overwhelming" and "there is nothing to which he could legitimately have testified that might have been believed by a jury", any Sandoval error will be considered harmless on appeal. So says the Court of Appeals in People v Grant,a decision handed down today. This is a continuation of the "really guilty man" flavor of harmless error analysis that started back in the Court's Wardlaw decision (holding denial of a defendant's right to counsel at suppression subject to harmless error analysis). In Grant, the Sandoval error could not have been more egregious; at defendant's trial for criminal contempt, the trial court ruled "that should defendant testify, the People would be permitted to impeach him by mention of his six prior criminal-contempt convictions." (Grant, 2006 NY Slip Op 07394.) Defense counsel then placed on the record that defendant would not be testifying because of the trial court's Sandoval ruling. The Court of Appeals agreed that the Sandoval ruling was erroneous, but found it to be harmless in this case. From the Court's decision:

We now hold explicitly [that] Sandoval error is properly subject to harmless-error analysis. At the outset, we note that although defendant claims that his constitutional right to testify in his own behalf was violated by the Court's Sandoval ruling, he never raised any constitutional claim before the trial court, thus failing to preserve this contention for our review. Accordingly, his current claim must be reviewed under the standard applicable to nonconstitutional harmless error. Under that standard, an error will be deemed harmless when the proof of guilt was overwhelming and there was no significant probability that the jury would have acquitted had the error not occurred. [...]

If, in a particular case, the factfinder is deprived of no significant material evidence, then the defendant has not been denied a fair trial and reversal of the conviction would serve no jurisprudential purpose. Assuming that the trial court here abused its discretion, we agree with the Appellate Division that any error was harmless, since defendant's decision not to testify did not deprive the jury of any 'critical information'. [...] The evidence of defendant's guilt was overwhelming. [...] Although defendant states in the abstract that he was "the sole source of his defense," he proffers no hint that he actually had any creditable defense, and offers no suggestion as to what it might have been. Plainly, on this record, there is nothing to which he could legitimately have testified that might have been believed by a jury.

(Id. at __.)

Judge R.S. Smith dissented, stating simply "I cannot accept the proposition that an error that prevented a defendant from telling his side of the story to a jury can ever be 'harmless.' [...] To hold that interference with the defendant's right to testify may be overlooked because of his failure to make a 'proffer' that the trial court finds 'creditable' is to sanction a trespass by the court on the jury's province that is not consistent with the way our system works." (Id. at __ [SMITH, J., dissenting].)

The upshot of this decision is that trial defense counsel must do at least two and preferably three things to even give his or her client a shot of obtaining meaningful appellate review of a trial court's Sandoval ruling: 1) put on the record that the defendant's decision not to testify was based on the trial court's Sandoval ruling, 2) make at least a limited proffer of defendant's testimony, and 3) put on the record that the trial court's Sandoval ruling is depriving defendant of his Constitutional right to present a defense and testify on his own behalf. That last one is critical, because it will (hopefully) trigger the stricter standard of harmless error review applicable to constitutional error (i.e. the reviewing court will have to find the Sandoval error harmless beyond a reasonable doubt).

And of course, in the Fourth Department a defendant must object to the trial court's "ultimate" Sandoval ruling to even preserve the issue for review in the first place. (See People v Mc Millon, 2006 NY Slip Op 06993 [available here].)

AD4: jury must be charged defendant has no duty to retreat if less-than-deadly force used in self-defense

People v Phillips, 2006 NY Slip Op 07051 [available here]

A defendant only has a duty to retreat to safety before acting in self-defense if he intends to use deadly physical force. If the self-defender just plans on defending with less than deadly physical force, he may do so even if capable of fleeing. In Phillips, the defendant was charged with assault, and argued that whatever injuries he inflicted were done in self-defense. The trial court charged the jury that defendant had a duty to retreat, and the Fourth Department reversed. "It is clear that the jury must determine whether a defendant could have retreated with complete safety only when a defendant uses deadly physical force . . . we conclude that the court's charge left the jury with no choice but to reject the justification defense, inasmuch as the evidence established that defendant did not retreat although he could have done so with complete safety." (Phillips, 2006 NY Slip Op 07051.)

Justice Centra named to AD4 bench

Governor Pataki designated Justice John V. Centra as a Justice of the Appellate Division, Fourth Department today. You can read the Governor's press release here. Also, the New York Law Journal is reporting here that Justice Scudder will likely be named Presiding Justice of the AD4 to replace Justice Pigott.

AD4: Officer bolstering is not bolstering if eyewitness is excited

People v Roseboro, 2006 NY Slip Op 06976 [available here]

It is well-settled that, as a general rule, a police officer is not allowed to bolster the identification testimony of an eyewitness. Thus, if an eyewitness testifies at trial to a positive identification of a defendant during a showup, the People are not allowed to call the police officer who conducted the showup to confirm that the eyewitness identified the suspect. It is bolstering, plain and simple.

In Roseboro, the police officer was allowed at trial to "confirm[...] the victim's identification of defendant at the hospital." (Roseboro, 2006 NY Slip Op 06976.) This is a classic bolstering issue. However, the Fourth Department affirmed defendant's conviction, finding the officer's testimony was admissible because the "identification by the victim was admissible under the excited utterance exception to the hearsay rule, i.e. it was 'made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication.'" (Id.) Fine, the eyewitnesses statement would come in over a hearsay objection. But that doesn't speak to the bolstering question--why is the cop allowed to confirm the eyewitness identification testimony, and how does the fact that the witness may have been excited when she made the identification figure in? The Fourth Department's decision is a non sequitor--the Court engages in a hearsay analysis to resolve a bolstering issue. I am at a loss to explain this one.

AD4: "second child sexual assault felony offender statement" timely in plea situation if it affords defendant opportunity to be heard

People v Armbruster, 2006 NY Slip Op 07055 [available here]

A relatively recent flavor of persistent felony sentencing is found in CPL 400.19[2], that allows harsher penalties for those defendants previously convicted of felony sexual assault against a child. Before seeking the harsher sentence, the People must file a statement "at any time before trial commences setting forth the date and placed of each [such] alleged predicate felony conviction . . . and a statement whether the defendant was eighteen years of age or older at the time of the commission of the predicate felony." (Armbruster, 2006 NY Slip Op 07055.) That's fine if you are standing trial for the present offense--but what if a defendant pleads guilty? The defendant in Armbruster argued that the statement must be filed before "the entry of a guilty plea." (Id.) The Fourth Department, while acknowledging that the statute did not provide for the guilty plea scenario, disagreed with defendant and instead concluded "that the CPL 400.19 statement is timely filed in the event that there is a guilty plea if it is filed within a sufficient time before the imposition of sentence to afford the defendant notice and an opportunity to be heard." (Id.) Even if the statement was required to be filed before entry of the guilty plea, the Fourth Department would have found the error harmless; importing reasoning employed to resolve this issue in more established recidivist sentence procedures, the Court held "'[w]here, as here, the statutory purposes for filing a predicate statement (i.e. [,] apprising the court of the prior conviction and affording defendant notice and an opportunity to be heard in connection with the predicate felony) are satisfied, strict compliance with [CPL 400.19] is not required.'" (Id. at __ [citations omitted].)

AD4: We know "custody" when we see it

In dealing with the legality of police-citizen encounters, it is critical to pinpoint the point of custody, i.e. the moment at which a reasonable, innocent person would no longer feel free to leave. The resolution of this "custody" question often resolves the legality of the police conduct--a whole slew of police actions and so-called "detentions" are permissible on less than probable cause so long as the suspect is not found to be in "custody" yet. Three decisions handed down by the Fourth Department this term highlight the contours of the Fourth Department's thinking on "custody" matters; the decisions are somewhat contradictory, but nonetheless provide useful guideposts.

People v Mc Clain, 2006 NY Slip Op 06947 [available here]

In People v Mc Clain, the defendant was seized by multiple police officers at gunpoint, handcuffed, frisked and transported back to the crime scene for a showup identification. (Mc Clain, NY Slip Op 06947.) The Fourth Department held that the police conduct amounted to a full arrest justifiable only on a showing of probable cause--"the actions of the police officers in drawing their guns, handcuffing and frisking defendant, and transporting defendant, while handcuffed, to the scene of the robbery amounted to an arrest of defendant." (Id.) This is a welcome decision from the AD4, because usually in a case where a defendant is detained (however forcefully) only briefly for purposes of conducting a showup identification, mid-level appellate courts will cite to the seminal Court of Appeals decision in People v Hicks and justify the so-called "temporary investigative detention" on a lesser showing of reasonable suspicion. Hey, wait a minute . . . that's exactly what the Fourth Department did in . . .

People v Wiley, 2006 NY Slip Op 07060 [available here]

. . . where the defendant was stopped on a public street, searched, handcuffed and locked in the back of a police cruiser without any explanation of why he was being detained. (Full disclosure: I was the attorney on appeal for Mr. Wiley.) The Fourth Department affirmed the trial court's denial of defense counsel's motion to suppress, holding "[t]he police had the requisite reasonable suspicion to stop and detain defendant for a showup identification procedure." (Wiley, 2006 NY Slip Op 07060.) From the decision:

[A]lthough the officer handcuffed defendant prior to transporting him to the crime scene for the showup identification procedure, defendant was not taken to the police station at that time, the conversation between defendant and the officer was congenial, and the crime scene was a short distance from the location where defendant was stopped by the officer. The record further establishes that defendant was not interrogated during the brief detention and, indeed, the officer stopped defendant from speaking to him, administered Miranda warnings and discontinued conversation with defendant until after the showup identification occurred. [...] Thus, we agree with the People that the police "diligently pursued a minimally intrusive means of investigation likely to confirm or dispel suspicion quickly, during which time it was necessary to detain the defendant."
(Id. at __.)

The only difference between Wiley and the facts of Mc Clain is that the officers drew their guns in Mc Clain. I have my doubts as to whether that should make a difference--it seems a reasonable, innocent person in Mr. Wiley's shoes would not have felt free to leave the officer's presence once he was stopped, frisked, searched, handcuffed, locked in the back of the police cruiser and transported without explanation. But even assuming a person would feel free to leave after being cuffed and locked in a police car, I gotta believe even the most naive person in the world would feel less-than-free if, during the course of casual conversation, the officer read Miranda warnings (i.e. the hallmark of an arrest to anyone who has watched any primetime cop show in the last 20 years). But I digress.

People v Dozier, 2006 NY Slip Op 07053 [available here]

From the other end of the "custody" spectrum comes Dozier. Unlike the defendants in Mc Clane and Wiley, Ms. Dozier was not plucked from a public street, was not subject to a frisk or search, and was not handcuffed. Rather, "[d]efendant willingly accompanied the police to the police station, she was not handcuffed, she was offered food and beverages, and she was not questioned in an accusatory fashion." (Dozier, 2006 NY Slip Op 07053.) On those facts, the Fourth Department had no trouble finding "a reasonable person innocent of any crime would not have believed that he or she was in custody, and thus warnings were not required." (Id. at __.)

AD4: Defendant must be allowed to withdraw entire plea if agreed sentence is illegal as to one count

People v Ciccarelli, 2006 NY Slip Op 06655 [available here].)

The defendant pled guilty back in 1989 to one count of Criminal Sale of a Controlled Substance in the First Degree (CSCS 1st) and one count of Attempted CSCS 1st. The parties to the plea were operating under the understanding that Attempted CSCS1st was a class A-II felony, and the agreed-upon sentence (4 years to life) reflected this erroneous understanding. Attempted CSCS 1st is actually an A-I felony, making the agreed-upon sentence illegal. Defendant made a 440 motion to withdraw his entire plea based on the illegal sentence; the 440 court only allowed him to withdraw his plea to the Attempted CSCS1st count, and let the plea and sentence on the other count stand. The Fourth Department reversed:

The court erred, however, in granting the motion only to the extent of vacating the sentence imposed on that count and permitting defendant to withdraw his plea of guilty on that count. "Where the plea bargain includes a sentence which is illegal because the minimum imposed is less than that required by law, . . . the proper remedy is to vacate the sentence and afford . . . defendant, having been denied the benefit of the bargain, the opportunity to withdraw the plea" . Further, "[i]nasmuch as the entire sentence is part and parcel of the plea bargain,' it must be vacated in its entirety regardless of whether portions of the sentence are legal".

(Ciccarelli, 2006 NY Slip Op 06655 [citations omitted].)

New decisions from the AD4 coming this afternoon.

AD4: Crawford v Washington not applicable at probation violation hearing

People v Brown, 2006 NY Slip Op 06706 [available here]

In another less-than-surprising decision, the Fourth Department confirms that the testimonial hearsay rule promulgated by the Supreme Court in Crawford v Washington (based on the Confrontation Clause) does not apply at any proceeding other than a full criminal trial; in this case a probation revocation hearing. (Brown, 2006 NY Slip Op 06706.) As I noted here, the Supreme Court telegraphed as much in Crawford.

If at first you don't succeed . . .

People v Rodriquez, 2006 NY Slip Op 06683 [available here]

On the day before he killed a woman, Mr. Rodriquez tried to purchase a rifle. Having failed to acquire the gun, defendant opted for a less conventional method of murder--he doused his victim in gasoline and fired a flare gun at her. (Rodriquez, 2006 NY Slip Op 06683.) The trial court allowed the evidence of the failed rifle purchase, and the Fourth Department affirmed because the "testimony concerning his failed attempt to purchase a rifle . . . provided necessary background information and completed the narrative of events." (Id.) Of course. Because if you did not know that defendant tried to buy a gun the day before, you might attribute innocent intent to defendant's attempt to light his gasoline-soaked victim on fire with a flare gun.

AD4: Police officer's creepy come-ons not misdemeanor stalking

People v Watson, 2006 NY Slip Op 06680 [available here

A police officer in Jamestown, New York was charged with multiple counts of Stalking in the Fourth Degree (a B misdemeanor) and Stalking in the Third Degree (an A misdemeanor) based on his aggressive perverted pursuit of at least three women. The B misdemeanor counts were based on the allegations of three women that the cop (among many other things) "exposed his genitals", made inappropriate phone calls, "would sit outside ... in his patrol vehicle and shine the vehicle's lights into her bedroom, and he would grab his genitals while asking her questions such as whether she had dreamed about him." (Watson, 2006 NY Slip Op 06680.) The trial court dismissed some of the B misdemeanor Stalking counts because the women testified that, while they were creeped out by defendant, they were never afraid for their physical safety. The Fourth Department affirmed, noting that a required element of Stalking in the Fourth Degree is that defendant "knew or should have known that his conduct was likely to cause reasonable fear of material harm to the physical health or safety of the women", and the women's testimony that they harbored no such fear precluded the charge. (Id.)

Similar reasoning underpinned the dismissal of the A misdemeanor stalking counts (also affirmed by the AD4). To sustain that charge, the People had to prove that defendant's conduct "was likely to cause such person to reasonably fear . . . the commission of a sex offense against . . .such person [...]." (Id..) Again, the defendants were weirded out by defendant's conduct, but all testified that they did not believe defendant would actually commit a sexual assault. Given that testimony, the Fourth Department held the trial court's dismissal of the A misdemeanor stalking charges was appropriate.

Pigott's Last Packet

Justice Pigott handed down his leftover decisions last Friday (presumably on his way out of town for Albany), a week ahead of the rest of the Court. I'll post on the significant criminal decisions from this last packet between now and Friday (when the rest of the decisions from a busy September term come down).

Small town "justice"

The New York Times has a fascinating series of articles up exploring the system of Town and Village Justice Courts in New York. You can read the whole thing here. In my hometown, the village Justice also ran the "Chuck Wagon" (a converted Winnebago serving hamburgers and hotdogs) at the County Fair.

UPDATE: Nicole at Sui Generis links to the same article and has her own Town Court war stories here.

UPDATE 2: Part two of the series is up here.

UPDATE 3: And Part three is here.

AD4: warrantless arrest for violation only appropriate where offense occurs within officer's presence

People v Solomon, 2006 NY Slip Op 05459 [available here]

A woman called 911 and told them that defendant would not leave her house. When the police responded, defendant was seen "leaving the caller's home." (People v Solomon, 2006 NY Slip Op 05459.) Defendant was chased down and arrested, and was eventually charged with harassment in the second degree (a violation). Citing CPL 140.10, the Fourth Department held that, because the alleged harassment did not occur in the presence of the arresting officer, the warrantless arrest was illegal and the evidence found subsequent to arrest should have been suppressed. (See id. [The police may arrest a person for a violation without a warrant when, inter alia, they have 'reasonable cause to believe that such person has committed such offense in [t]heir presence'. The warrantless arrest of defendant for a violation, i.e., harassment, that did not occur in the presence of the arresting officers was therefore illegal [...].")

AD4: legal sufficiency issue still not preserved if trial defense counsel fails to renew TOD

People v Adamus, 2006 NY Slip Op 05520 [available here]

Just a reminder: if you are a practicing criminal defense attorney in the Fourth Department, you must renew any motion for a trial order of dismissal at the close of all proof to preserve any legal sufficiency issues for appeal. (See People v Adamus, 2006 NY Slip Op 05520 ["By failing to renew his motion to dismiss the indictment at the close of the proof, defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction"].) Carry on.

AD4: more than mere residence required to prove defendant constructively possessed drugs found in roommate's dresser

People v Gautreauz-Perez, 2006 NY Slip Op 05519 [available here]

Defendant was charged with Criminal Possession of a Controlled Substance in the Third Degree after police found cocaine "in a closed dresser drawer" in her roommate's bedroom. She was convicted after trial; the Fourth Department reversed and held her conviction was not supported by legally sufficient evidence. From the decision:

The mere fact that defendant lived at the residence where the drugs were found is, without more, legally insufficient to establish that she exercised the requisite dominion and control over the drugs "by a sufficient level of control over the area in which the [drugs were] found". Indeed, the evidence at trial established that only male clothing and male shoes were found in the southeast bedroom and that a male roommate of defendant was involved in a drug deal previously observed by the officers while on surveillance.

(People v Gautreauz-Perez, 2006 NY Slip Op 05519.)

A reassuring case for anyone who is unwittingly sharing his or her apartment with a drug dealer.

AD4: "right to be left alone" alive and well in New York

People v Lobley, 2006 NY Slip Op 05444 [available here]

Police responded to a citizen complaint of drug dealing at a certain address in Buffalo, and saw defendant hanging out with a group of men on the stoop. One of the officers "made eye contact with defendant and asked him to 'stop', [and] defendant ran into the downstairs apartment of the residence." (People v Lobley, 2006 NY Slip Op 05444.) The police chased defendant and, after being let into the apartment by an unidentified woman, observed defendant with a gun inside the apartment. Not done yet, "Defendant threw the gun into the air and ran through the backyard." (Id. at __.) He was caught and arrested later. The trial court refused to suppress the gun, and the Fourth Department reversed. The People on appeal conceded that the police did not have the requisite "reasonable suspicion" to justify the initial chase of the defendant, but instead argued that "the illegal pursuit ended when the police reached the locked door and that, when the door was opened, the observation of the police of defendant holding a gun provided probable cause for his arrest." (Id. at __.) The AD4 rejected this bit of constructive legal time travel. After first noting that flight alone "or even in conjunction with equivocal circumstances" is insufficient to justify pursuit, the Court held,

When the officers first observed defendant, he was imply standing next to a group of men seated on the stoop, and '[d]efendant's later conduct cannot validate an encoutner that was not justified at its inception'. Indeed, "[i]f these circumstances could combine with flight to justify pursuit, then in essence the right to inquire would be tantamount to the right to seize, and there would, in fact, be no right "to be let alone."

(Id. at __.)

It is worth noting that the New York constitution does the heavy lifting here, as the U.S. Supreme Court has arguably held the mere fact of flight sufficient to justify police pursuit. (See Illinois v Wardlow, 528 US 119 [2000].)

Upon further review . . .

People v Linnan, 2006 NY Slip Op 05482 [available here

Back in November, 2005, the Fourth Department considered Paul Linnan’s appeal from his murder conviction. The transcripts from jury voir dire showed that a prospective juror indicated she would have a hard time remaining fair and impartial if forced to look at gruesome photographs. But instead of reversing Mr. Linnan’s conviction (based on the juror’s failure to give adequate unequivocal assurances of impartiality), the Fourth Department held decision and remanded to the trial court. Why? Because in their brief on appeal, “the People assert[ed] that the exchange attributed by the transcript to the prospective juror not challenged for cause ‘may well have’ involved the prospective juror challenged for cause, and that the prospective juror challenged for cause may thereby have rehabilitated herself as an impartial juror.” (People v Linnan, 23 AD2d 1013, 1013 [4th Dept 2005].) This seemed odd to me at the time.

So what happened on remand? The People “in effect conceded that the prospective juror challenged for cause was not the same prospective juror who made the expurgatory statements [...].” (People v Linnan, 2006 NY Slip Op 05482.) In other words, the People’s assertion in their first appellate brief was so much hog-wash, and the People conceded as much on remand. Meanwhile, Mr. Linnan’s reversal was delayed 8 months.

Save some for the rest of us

People v Carter, 2006 NY Slip Op 05448 [available here]

Even while waging an (ultimately) unsuccesful campaign for mayor of Rochester, defense attorney John Parrinello managed to get the Fourth Department to reverse his client's conviction for various counts of Sodomy--on four separate legal grounds. Way to hog the issues. The Fourth Department agreed with Mr. Parrinello that, 1) the trial court erred in refusing to allow Mr. Parrinello to present "testimony concerning the reputation of the victim" where a proper foundation was laid and Parrinello agreed "to limit his direct examination of the witnesses to the general reputation of the victim in the community for truth and veracity"; 2) the trial court "also committed reversible error in allowing the People to present the testimony of a witness concerning his sexual acts with defendant" where the sex acts were consensual; 3) the prosecutor engaged in misconduct during opening argument, summation and cross-examination of defense witnesses (i.e. continually referring to defendant as a dangerous sexual predator, among other things), and; 4) the search warrant was overbroad "because it allowed the police to obtain evidence not specifically connected to the alleged crimes related to the victim." (People v Carter, 2006 NY Slip Op 05448.)

Given the Fourth Department's multiple pro-defendant reversals in the June packet, and further given this case (that contains more grounds for substantive pro-defendant reversals than usually show up in a whole term's worth of decisions), I can only conclude that either, 1) the end is near, or 2) the Fourth Department will not reverse another conviction until April, 2010.

AD4: Crawford does not apply to suppression hearing

People v Brink, 2006 NY Slip Op 05428 [available here]

In a decision confirming what was already suspected, the Fourth Department held in People v Brink that the so-called "testimonial" rule of Crawford v Washington [541 US 36] is a trial right that does not apply at a pretrial suppression hearing. From the decision:

We reject the contention of defendant that Crawford v Washington applies to his pretrial suppression hearing and that reversal is required because his right of confrontation was violated at the hearing. As the Supreme Court has written, "[t]he right [of] confrontation is basically a trial right." Indeed, "the interests at stake in a suppression hearing are of a lesser magnitude than those in the criminal trial itself. At a suppression hearing, the [suppression] court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial."

(People v Brink, 2006 NY Slip Op 05428.)

Unlike the murkiness surrounding the definition of "testimonial", the Supreme Court has pretty consistently telegraphed that it will apply the Confrontation Clause formulation of Crawford only at trial. So the Fourth Department's decision refusing to apply Crawford at sentencing is no big surprise.

AD4: refusal to allow cross-examination concerning motive to fabricate rape allegations = denial of right to present a defense

People v Mc Farley, 2006 NY Slip Op 05447 [available here]

At his trial on allegations of raping a high school student, defendant Mc Farley attempted to elicit testimony that the complainant and her mom had a monetary motive for making the allegations, and that the complainant had commented to a friend (after watching the movie "Wild Things") that she would like to try falsely accusing somebody of rape. The trial court refused to allow defense counsel to explore these areas, and specifically restricted counsel's cross-examination accordingly. The Fourth Department reversed, holding that the trial court's ruling thwarted the defendant's right to present a defense. From the decision:

Defendant was entitled to explore his theory that the victim and her mother had a profit motive in accusing defendant of rape five months after the alleged rape occurred and his theory that the victim accused defendant of rape based on a movie she had seen.

[quotes from United States Supreme Court cases guaranteeing the right to present a defense and to cross-examine witnesses omitted]

Here, defendant sought to cross-examine a witness with respect to a statement by the victim's mother in which she had threatened to "sue." In addition, he sought to present testimony that the victim had watched the movie "Wild Things," which dealt with high school students who made false allegations of rape against a teacher, and that the victim had commented to a defense witness that she would like to "try it on somebody." "[E]xtrinsic proof tending to establish a reason to fabricate is never collateral," and the court erred in precluding defense counsel from presenting that proof.

(People v Mc Farley, cite.)

I'm sure there is a Denise Richards joke in here somewhere.

AD4: No cocaine, no arrest

People v Ortiz, 2006 NY Slip Op 05409 [available here]

The police stopped the vehicle driven by Mr. Ortiz after listening in on some phone calls where a sale of cocaine between Ortiz and a police informant was discussed. But despite this bit of intelligence, a search of Mr. Ortiz and his car turned up no cocaine. Undeterred, the police (there were five officers on the scene at this point) placed Mr. Ortiz in the back of a police cruiser and continued to question him. After some "accusatory" questioning, Mr. Ortiz consented to a search of his home (where cocaine was later found) and signed a statement admitting to possessing cocaine. The trial court refused to suppress the cocaine and the statement, and the Fourth Department reversed. From the AD4's opinion:

The record establishes that the police lacked probable cause for the roadside arrest inasmuch as the search of defendant's person and vehicle did not result in the recovery of any illegal substances or any other basis upon with to arrest defendant. [...] Indeed, we note that the People do not contend on appeal that the police had probable cause for a roadside arrest but, rather, they contend that the police arrested defendant only after drugs were found at his home following his consent to that search and defendant had signed a statement in which he admitted that he sold drugs. "The fact that the police were ultimately successful does not justify defendant's arrest. The police are not at liberty to arrest and hold a suspect while they search for evidence sufficient to justify their action."

(People v Ortiz, __ AD3d at __.)

A particularly nice aspect of this decision is that the Fourth Department found the defendant subject to a "roadside arrest" (i.e. in custody for purposes of triggering a full-blown probable cause analysis) when the defendant was placed in the back of the police cruiser at the scene. Notably, the Court went out of its way to note the defendant was not handcuffed and that he was "asked" (and not ordered) to "sit in the police vehicle." (Id. at __.) Nevertheless, the Court found defendant to be under de facto arrest at this point, and not subject to the amorphous, supposedly less onerous "investigatory detention" (justifiable on the less stringent showing of "reasonable suspicion"). Pegging the precise moment of de facto arrest is critical in this type of case, because only after a de facto arrest is shown is the probable cause requirement triggered. That the Fourth Department found a "roadside arrest" occurred even absent handcuffing or the use of coercion to get defendant into the police vehicle is encouraging.

Justice Pigott nominated to Court of Appeals

This past Friday, Governor Pataki announced his nomination to the Court of Appeals of Justice Eugene Pigott, Jr., currently presiding Justice of the Fourth Department. If confirmed, Justice Pigott will take the seat currently occupied by Judge G.B. Smith. The New York Law Journal has a nice article about the appointment here.

AD4: not all blue cars are created equal

People v Taylor, 2006 NY Slip Op 05429 [available here]

At about 10:30 p.m., a police radio call "reported that 'two male blacks' . . . had committed an armed robbery in the area of Conkey Avenue and were observed leaving the scene in a 'light blue Ford Contour'". (People v Taylor, cite.) About 2 1/2 hours later, police officers "observed a light blue Mercury Mystique containing two occupants at the intersection of Clifford Avenue and Conkey Avenue." (Id.) Although not able "to discern the race of the occupants", the police pulled over the Mystique with the stated intention to identify the occupants and question them about the robbery. (Id. at __.) The trial court upheld the stop, and the Fourth Department reversed; from the AD4 decision:

It is well settled that the police may stop a vehicle based upon a "reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime". [...] Here, the facts known to the police, along with any rational inferences to be drawn therefrom, were insufficient to establish reasonable suspicion that the driver or occupants of the vehicle had committed the robbery. Indeed, the stated purpose of the stop was to "identify the occupants of the vehicle" and to "ask them if they had possibly known anything" about the robbery, and we thus conclude that the stop was not based on the requisite reasonable suspicion.

(Id. at __ [citations omitted].)

As a someone who drives, I find it comforting that the Fourth Department has ruled that you cannot be stopped and questioned by the police for driving the same color car as a suspected criminal.

CA: trial court must charge jury that victim's prior threats may be used to determine initial aggressor

People v Petty, 2006 NY Slip Op 05232 [available here]

In an opinion that escaped my attention when it was handed down about a month ago, the Court of Appeals held that a trial court erred in failing to instruct the jury that a victim's prior threats could be considered by the jury not only in determining the reasonableness of defendant's conduct but also to determine whether the victim was the initial aggressor for justification purposes. Yes, I just started a post with a 66-word sentence.

The defendant in People v Petty shot his victim in the back of the neck. At trial, the defendant argued that his use of force was justified based on the victim's prior threats against defendant's life. Defense counsel asked that the jury be charged that these prior threats could be considered in determining whether the victim was the initial aggressor. The trial court refused to give the requested charge, and instructed the jury instead that the prior threats were relevant only in determining the reasonableness of defendant's use of force. From the Court's opinion:

Here, having instructed the jury on the use of Torrence's prior threats against defendant for the purpose of determining defendant's reasonableness, the trial court, based on this Court's long-standing precedent, should have also instructed the jury that, for its initial aggressor determination, it was permitted to use the prior threats that it heard throughout the trial.

(People v Petty, 2006 NY Slip Op 05232.)

Despite finding error, the Court declined to reverse defendant's conviction; the Court concluded that the People disproved the justification defense beyond a reasonable doubt and the charging error was therefore harmless. (Id. at __.)

Upcoming arguments at the Court of Appeals

Three cases out of the Fourth Department are currently pending argument before the Court of Appeals (Big Hat Tip to the fine folks at the Center for Appellate Litigation). Here they are, in no particular order:

People v Bolling: the issue in Bolling is whether a trial court is required to instruct the jurors that they must acquit defendant of all charges (including lesser-included offenses) if they find defendant justified as to a top count. Both the First and Second Departments require such a charge, and failure to give it is reversible error. In Bolling, the Fourth Department refused to reverse based on a trial court's failure to give the requested charge, and recognized the split thus created among the Appellate Division Departments. See my previous post on Bolling here. The case will be argued October 12, 2006. (Full disclosure: I am Mr. Bolling's attorney and will be arguing his case before the Appeals.)

People v Cagle: the defendant in Cagle was sentenced as a second felony offender based on the trial court's determination that he had been convicted of a prior felony within 10 years of the commission of the crime he was being sentenced on. In calculating the 10-year period, the trial court excluded time defendant spent on work release supervision, reasoning that "work release" was the equivalent of "incarceration" for purposes of tolling the 10-year time period. The Fourth Department, in a 3-2 decision, affirmed the trial court's decision and held that "the tolling provision applies to the period of time in which defendant was in the day-reporting work release program inasmuch as he remained under the control and custody of the Department of Correctional Services." (Cagle, 26 AD3d 735 [2006].) As the dissenters noted, the Second Department has held just the opposite, and the Justice Pine (one of the AD4 dissenters) granted leave to resolve the question. The case will be argued October 19, 2006.

People v Carter: the primary issue in Carter is whether the trial court erred in failing to charge depraved indifference Assault 1st and intentional Assault 2nd in the alternative. The Fourth Department found the issue to be unpreserved and declined to reach it in the interests of justice.

You can see the entire list of the upcoming Court of Appeals arguments over at the Center for Appellate Litigation.

AD4: Single gunshot to chest insufficient to establish "uncommon brutality" required for depraved indifference murder

People v Packer, 2006 NY Slip Op 05449 [available here]

Continuing on our "depraved indifference" theme, the Fourth Department reversed a defendant's depraved indifference murder conviction where the evidence established only that the defendant shot his victim once in the chest. The facts, as set forth in the Fourth Department's decision:

Without apparent explanation or provocation, defendant removed two pistols from a safe in his bedroom, held up one of the pistols and fired a single fatal shot at the victim. Defendant testified that he did not recall shooting the victim and had no reason to kill her.

(Packer, 2006 NY Slip Op 05449 at __.)

On those facts, the Fourth Department concluded "that 'defendant's conduct may have reflected recklessness but did not fall within the small, and finite, category of cases evidencing utter depravity, uncommon brutality and inhuman cruelty required for depraved indifference murder'." (Id. at __ [citing People v McPherson, 6 NY3d 202, 216.) Instead of dismissing the depraved indifference murder count outright, the Fourth Department took the increasingly favored remedial step of reducing defendant's conviction to manslaughter in the second degree (see my previous post on this trend here).

It is worth noting that the Fourth Department found this issue unpreserved because defendant's motion for a trial order of dismissal was not renewed at the close of all proof; the Fourth Department reads the Court of Appeals' decision in People v Hynes (97 NY2d 56) as requiring a defendant to make a TOD motion at the close of all proof to preserve a legal sufficiency argument for review. (Packer, 2006 NY Slip Op 05449 at __ ["Defendant failed to renew his motion to dismiss at the close of the People's case after presenting evidence and thus failed to preserve [his legal sufficiency arguments] for our review"].) The Fourth Department's reading of Hynes is by no means widely accepted, and the Second Department has specifically rejected AD4's reading of Hynes and held making a TOD motion at the close of the People's case is sufficient to preserve a legal sufficiency argument. (See< People v Soto, 8 AD3d 683 [2d Dept 2004].) The Court of Appeals may get around to resolving these conflicting interpretations of Hynes eventually, but until the Appeals rule on the issue it is clear the Fourth Department will continue to require defense counsel to renew his or her TOD at the close of all proof in order to preserve legal sufficiency issues for review. Mr. Packer got lucky; the Fourth Department decided to reach his legal sufficiency issue in the interest of justice.

CA: "depraved indifference" roundup

In the wake of last week's Feingold decision (overturning People v Register and holding that "depraved indifference" is a culpable mental state), the Court of Appeals did some housekeeping and decided three more cases dealing with "depraved indifference" issues. Here they are, in no particular order:

People v Mancini, __ NY3d __ [available here]

The facts of Mancini fall into the "you can't make this stuff" up category (i.e. death-by-toilet-lid); from the dissent:

According to defendant's trial testimony, after agreeing to a sexual encounter with a 75-year-old man for a specified sum of money and accompanying him to his home, the pair got into the shower. When the man told defendant that he would pay only half of the agreed-upon price, defendant refused to have sex with him. The man responded by grabbing defendant from behind, which led her to believe that she was about to be sexually assaulted. A struggle ensued.

Defendant testified that eventually she got out of the shower, picked up a toilet tank lid and swung the lid in the direction of the man, who had slipped and was now sitting in the tub, striking the lid on the side of the shower. Defendant claimed she swung the lid once more, hitting the man directly on the left side of his head. [...]

Notwithstanding the victim's shattered skull, profuse bleeding and motionless body, defendant told the jury that she "did not think he was hurt that bad", "thought he would need stitches but . . . [that] he would be okay" and that he would "eventually . . . get up and probably call the police himself" and that it was "only a flesh wound."

(Mancini, __ NY3d at __ [Monty Python reference added].)

On those facts, the majority held that "Defendant did not commit depraved indifference murder within the meaning of the statute." (Id. at __.) Judge Graffeo dissented, and would have held that defendant created a grave risk of death by her actions (i.e. bashing the old man in the head with the toilet tank lid) and elevated her score on the "depravity" scale by "abandon[ing] the victim and imped[ing] the possibility of assistance by locking the doors to the garage and bathroom." (Id. at __ [GRAFFEO, J., dissenting].) The majority counters this argument by noting that, if leaving a victim to die is treated as the elevating factor for depraved indifference murder, "[t]hat test would sweep in the vast number of homicides where the killers do not linger with their victims, awaiting aid." (Id. at __.)

People v Atkinson, __ NY3d __ [available here]

In a case interesting for the corrective action taken, the Court in Atkinson agreed that the evidence was insufficient to establish "depraved indifference" murder, but fell short of a straight dismissal. Rather, the Court held that "dismissal of the indictment is neither required nor warranted. The facts are sufficiently different from Payne to enable a jury to reasonably conclude that defendant's actions, although not depraved, were reckless. Among other evidence, testimony at trial could have led a rational jury to infer that the victim moved into a shot that was intended only to scare him." (Atkinson, __ NY3d at __.) Thus, the Court reduced defendant's conviction from "depraved indifference" murder to manslaughter in the second degree. (Id..)

This trend of reducing a depraved indifference murder conviction to manslaughter in the second degree (instead of dismissing the indictment completely and walking a defendant out of prison) has popped up in the Fourth Department. (See People v Packer, 2006 NY Slip Op 05449.) It is an interesting way to solve the counter-intuitive problem inherent in these depraved indifference cases going back to Gonzalez, i.e. completely dismissing a murder indictment where the evidence shows a manifest intent to kill. The first Court of Appeals cases on this issue focused on whether an act manifested such an obvious intent to kill that a conviction based on a lesser, reckless mental state could not be supported by the evidence. (See e.g., People v Gonzalez, 1 NY3d 464 [2004].) Since then, the focus of the Court of Appeals has shifted to the definition of "depravity"; and now that "depravity" is a mental state, it gives appellate courts cover to find conduct reckless but not depraved, and thus salvage a conviction for manslaughter in the second degree. I imagine this will become the favored remedy in cases where an appellate court finds insufficient evidence to support a depraved indifference murder conviction--grant meaningful relief in the form of a reduction to reckless manslaughter, but deny the windfall of a complete dismissal.

The Atkinson decision also held that a defendant does not forfeit "his right to challenge the sufficiency of his conviction for depraved indifference murder by requesting that the jury be charged on the lesser-included offense of manslaughter in the second degree [...]." (Id. at __.) A nice bit of law to have in one's pocket if presenting this issue to one of the preservation-obsessed Appellate Division Departments.

People v Swinton, __ NY3d __ [available here]

In a brief memorandum opinion, the Court reverses a defendant's conviction for assault in the first degree because "the evidence is legally insufficient to prove beyond a reasonable doubt that defendants acted with the culpable mental state of depraved indifference." (Swinton, __ NY3d at __.) Without a discussion of the facts, this case is of limited utility; but it is nonetheless nice to see the words "the culpable mental state of depraved indifference" in a post-Feingold decision and confirm that the Feingold decision was not just a prank pulled on New York's criminal defense bar.