AD4: Decisions issued December 21, 2007

People v Gause [2007 NY Slip Op 10193] [available here]

Mr. Gause was charged with intentional and depraved indifference murder. County Court instructed the jury to consider either count first and, if it reached a verdict of guilty on that count, it was not to consider the remaining count. The jury considered [the depraved indifference count first, found defendant guilty, and did not reach the intentional murder count. Although the issue was not preserved, the Court exercised its interest of justice jurisdiction and held that the

defendant's conduct in repeatedly striking the victim's head with a metal pipe after the victim was shot in the head, neck and chest by an accomplice does not constitute a depraved indifference murder (see generally People v Suarez, 6 NY3d 202, 212-213; People v Payne, 3 NY3d 266, 271-272, rearg denied 3 NY3d 767; People v Dickerson, 42 AD3d 228).

However, the court ruled that

Because the jury never considered the intentional murder count, we agree with the People that double jeopardy does not preclude a new trial on that count (see People v Charles, 78 NY2d 1044, 1047; People v Hernandez, 41 AD3d 358, 360; People v Suarez, 40 AD3d 143, 145-[*2]149, lv dismissed 8 NY3d 991), and that a new trial on that count is the appropriate remedy in this case.

The Court also noted

that the certificate of conviction incorrectly reflects that defendant was acquitted of intentional murder in the second degree, and it must therefore be amended to reflect that the jury did not address that count....

People v Barry, [2007 NY Slip Op 10203] [available here]

Where the People presented evidence that defendant took the medication from the pharmacy over a period of 10 months for her personal use, to treat migraine headaches, and the issue in the case was whether these were separate petit larcenies or one ongoing scheme of grand larceny, it was error for the court to refuse to charge the jury that the People were required to prove that the defendant had a single, ongoing intent to steal the medication in order to find her guilty of grand larceny in the third degree.

Defendant is correct that, in order to find her guilty of separate acts of theft in a single count of grand larceny, the jury had to find that she had a "single intent, carried out in successive stages" (People v Rossi, 5 NY2d 396, 401; see People v Tighe, 2 AD3d 1364, 1365, lv denied 2 NY3d 747; People v Fayette, 239 AD2d 696, 697, lv denied 90 NY2d 904)... The court's failure to instruct the jury with respect to that distinction prevented the jury from properly evaluating the evidence.

People v Ellison, [2007 NY Slip Op 10204] [available here]

The fact that the police might possess a search warrant which, in fact authorizes the police to conduct a search of a particular apartment cannot render the search of that apartment lawful when none of the police conducting the search were aware of the content of the warrant.

[T]he court should have suppressed the physical evidence seized by the police during the search of his apartment, on the ground that the officers at the apartment began to search the premises without the requisite knowledge of the contents of the warrant (see People v Okun, 135 AD2d 1064, 1065-1066; People v Carson, 99 AD2d 664, 665). Although the officers were permitted to enter defendant's residence once they learned that the warrant was issued and was en route (see People v Mahoney, 58 NY2d 475, 479), here they exceeded their authority by beginning to search defendant's apartment before the undercover officer arrived at the apartment with the search warrant (see Carson, 99 AD2d at 665). Contrary to the People's contention, there is no evidence that the supervising sergeant was aware of the actual contents of the warrant after it was signed by the issuing judge. The fact that the judge signed the warrant as presented and placed no limitations on it cannot in hindsight be used to support the People's contention that the officers at defendant's apartment were aware of the contents of the warrant as issued by the judge. Further, the fact that the warrant may have been what the People characterize as 'a routine search warrant application" does not provide the police with the requisite knowledge of its contents in order to begin a search before having the warrant in hand.'

People v Mc Coy, [2007 NY Slip Op 10208][available here]

Despite a voluniminous motion setting forth data and expert statistical analysis, as well as anectotal affidvits of attorneys, showing that African Americans have been repeatedly and consistently significantly underrepresented in the jury poolin Monroe County the Court again rejected a contention of a defendant that the court erred in denying his motion to dismiss the jury pool on the ground that it did not reflect a fair cross section of the community on the ground that he had

failed to set forth sufficient facts demonstrating a systematic exclusion of African-Americans from the jury pool" (People v Owens, 39 AD3d 1260, 1260, lv denied 9 NY3d 849; see People v Cotton, 38 AD3d 1189, lv denied 8 NY3d 983.

It appears that the Court is applying a requirement that there be a showing of purposefulness or intent to under-represent African Americans.

People v Powless
[2007 NY Slip Op 10209], [available here]

The Court ruled for the defendant, and rejected the argument of the People based on People v Louree, 8 NY3d 541) in permitting a CPL 440 motion to vacate a plea due to failure of the court to advise that he was also being sentenced to post-release supervision.

County Court properly vacated the judgment on the ground that defendant was not advised before entering his plea that he would be subject to a five-year period of postrelease supervision (see § 70.45; People v Catu, 4 NY3d 242, 244-245). Contrary to the People's contention, defendant's motion is not barred by CPL 440.10 (2) (c) inasmuch as the court did not explicitly impose postrelease supervision at the time of sentencing, and defendant did not become aware of its imposition until after his direct appeal from the judgment of conviction was decided. Thus, defendant did not "unjustifiabl[y]" fail to raise the issue on his direct appeal (id.; cf. , 545-546).

the Court also refused to consider the People's contention, raised for the first time at oral argument of this appeal that it should apply the reasoning of the Second Circuit Court of Appeals in Earley v Murray (451 F3d 71, reh denied 462 F3d 147) to this case.

We do not address that contention, in the interest of fairness to defendant. That case was decided approximately six months before the People submitted their brief on appeal, which contained no reference to that case, nor did they submit a supplemental brief addressing the applicability of that case prior to oral argument of this appeal.

AD4: Decisions issued November 23, 2007

People v Cruz, 2007 NY Slip Op 09282 [Available Here]

At defendant’s first trial, which ended in a mistrial, defense counsel unsuccessfully raised a Bruton violation objection (see Bruton v United States, 391 US 123, 135-137) to the admission of prejudicial statements by a non-testifying co-defendant. At defendant’s second trial these statements were admitted without objection. On appeal the defendant argued that it was error to allow the admission of these statements. The Court agreed and reversed on both Bruton and Crawford grounds, despite the absence of objection, as a matter of discretion in the interest of justice.

A defendant's right of confrontation is violated where the confession of a nontestifying codefendant that facially incriminates the defendant is introduced at their joint trial (see Bruton v United States, 391 US 123, 135-137; see also Richardson v Marsh, 481 US 200, 207). "When an extrajudicial statement by one defendant contains incriminating references to another defendant, admission of that statement upon their joint trial deprives the nonconfessing defendant of his right to confront the witness against him unless that witness also testified at the joint trial" (People v Wheeler, 62 NY2d 867, 869, citing Bruton, 391 US 123). "If the confession, however, can be effectively redacted so that the jury would not interpret its admissions as incriminating the nonconfessing defendant, it may be utilized at the joint trial" (id.). Here, although defendant was implicated by use of a neutral pronoun rather than by name, the evidence before the jury established that both victims saw three robbers and one of the victims identified the robbers by name. Under the circumstances, there is no possibility that the incriminating references "would not necessarily be viewed by the jury as referring to defendant" (id.).....
Defendant further contends that reversal is required based on a Crawford violation. We agree. The out-of-court statements of the codefendant were testimonial in nature, and they therefore were inadmissible because the codefendant was not unavailable and defendant had no prior opportunity to cross-examine him (see Davis v Washington, ___ US ___, ___, 126 S Ct 2266, 2273-2274; People v Kyser, 26 AD3d 839).

People v Johnson, 2007 NY Slip Op 09273 [Available Here]

In an apparent issue of first impression, the Court holds that children depicted in pornographic photographs which were downloaded by the defendant who pled guilty to Attempted Promotion of a Sexual Performance by a Child are victims for purposes of the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.) statute, even where the defendant otherwise has no contact with the children. The SORA statute itself does not define the term victim. Thus, the defendant could be assessed risk assessment points based on the age and his lack of relationship with the children depicted in the photographs.

People v Givans, 2007 NY Slip Op 09281 [Available Here]

First, the Court reversed and ordered a new trial on the conviction on counts of criminal possession of a controlled substance in the second degree and conspiracy in the second degree because of the failure to grant challenges for cause regarding prospective jurors who stated that they would favor law enforcement and did not subsequently give unequivocal assurances that they were able to reach a verdict based entirely upon the court's instructions on the law.

Then, the Court addressed defendant's remaining contentions in the interest of judicial economy, and held that there had been three evidentiary errors at the defendant’s trial

We agree with defendant that the court erred in admitting a text message from a cellular telephone in evidence, inasmuch as the People failed to establish that the text message was ever read by defendant, or even retrieved by him, and they failed to establish the authenticity or reliability of the text message (see People v Johnson, 250 AD2d 922, 928-929, affd 93 NY2d 254; see also Prince, Richardson on Evidence § 4-203 [Farrell 11th ed]).

Further, the court erred in permitting the jury to access the entire contents of the cellular telephone and to view materials that were not admitted in evidence at trial (see People v Vizzini, 183 AD2d 302, 307-308; cf. People v Stanley, 87 NY2d 1000).

Finally, the prejudicial effect of testimony concerning uncharged crimes committed by defendant, i.e., his past drug sales, as well as his alleged familiarity with task force vehicles and his alleged threat to kidnap and feed drugs to the District Attorney's children, far outweighed the probative value of that testimony, and the court therefore erred in admitting that testimony (see generally People v Alvino, 71 NY2d 233, 241-242; People v Ventimiglia, 52 NY2d 350, 359-360; People v Molineux, 168 NY 264, 291-294).

(Congratulations to Linda Campbell who argued this appeal and persuaded the Court to find four errors in one case.)

People v Collins, 2007 NY Slip Op 09289 [Available Here]

County Court advised the defendant that he was precluded from raising the defense of intoxication to a charge of depraved indifference murder. That was true under the existing law at the time of defendant’s guilty plea (see generally People v Register, 60 NY2d 270, 275-276, cert denied 466 US 953; People v Hilligas, 291 AD2d 926, lv denied 98 NY2d 651). However, the law has since changed (see generally People v Feingold, 7 NY3d 288, 294; People v Coon, 34 AD3d 869, 870).

On appeal, defendant contends that he will be deprived of due process if the Court did not apply the current law in reviewing the factual sufficiency of his plea allocution, in view of his presently viable defense of intoxication. Although acknowledging that the defendant is correct that he is entitled to the application of current principles of substantive law upon his direct appeal from the judgment of conviction (see generally Policano v Herbert, 7 NY3d 588, 603-604), the Court rejected that contention.

Nevertheless, even assuming, arguendo, that we agree with the Third Department that intoxication is a defense to depraved indifference murder (see Coon, 34 AD3d at 870), we conclude that reversal is not required. The challenge by defendant to the factual sufficiency of the plea allocution does not survive his valid waiver of the right to appeal (see People v Donahue, 21 AD3d 1359, lv denied 6 NY3d 775; People v Spivey, 9 AD3d 886, lv denied 3 NY3d 712; People v DeJesus, 248 AD2d 1023, lv denied 92 NY2d 878). In any event, defendant failed to preserve that challenge for our review by moving to withdraw his guilty plea or to vacate the judgment of conviction (see People v Emm, 23 AD3d 983, 984, lv denied 6 NY3d 775; People v Perry, 21 AD3d 1352, lv denied 5 NY3d 884; see generally People v Lopez, 71 NY2d 662, 665), and nothing in the plea allocution alerted the court that defendant had a viable defense of intoxication, thereby placing the court under a duty, prior to accepting the plea, of inquiring into whether defendant was fully aware of and voluntarily waiving any such defense (see Lopez, 71 NY2d at 666). Defendant likewise failed to preserve for our review his contention that his plea was not voluntarily, knowingly, and intelligently entered (see DeJesus, 248 AD2d 1023) and, in any event, that contention lacks merit.

Considering that the Court advised the defendant that intoxication is not a defense to the charge, it is hardly surprising that the plea allocution did not alert the court that defendant had a viable defense of intoxication. Rather, the Court's comments effectively dissuaded the making of any such record.

Disorderly Conduct requires more than a mere inconvenience of pedestrians

From Jim Eckert:

The Court of Appeals ruled last week on the sufficiency of an information charging Disorderly Conduct (standing on the sidewalk) and resisting arrest.

In People v Jones, __ NY3d __ [11/20/17] the court reaffirmed that an information has to allege sufficient facts to make out a prima facie case. The allegation which was held to be insufficient was:

he observed defendant along with a number of other individuals standing around at the above location, to wit a public sidewalk, not moving, and that as a result of defendants' [sic] behavior, numerous pedestrians in the area had to walk around defendants [sic] . . . deponent directed defendant to move and defendant refused and as deponent attempted to stop defendant, defendant did run.

The Court explained why these factual allegations in the information do not meethe burden on the People to make out its prima facie case for the offense charged in the text of an Information (CPL 100.15 [3] and CPL 100.40 [1])

Nothing in the information indicates how defendant, when he stood in the middle of a sidewalk at 2:01 a.m., had the intent to or recklessly created a risk of causing "public inconvenience, annoyance or alarm." The conduct sought to be deterred under the statute is "considerably more serious than the apparently innocent" conduct of defendant here (People v Carcel, 3 NY2d 327, 331-332 [1957]). Something more than a mere inconvenience of pedestrians is required to support the charge ( id. at 332). Otherwise, any person who happens to stop on a sidewalk -- whether to greet another, to seek directions or simply to regain one's bearings -- would be subject to prosecution under this statute ( see People v Nixon, 248 NY 182, 185-188 [1928][Those congregating on the street display "atrociously bad manners" by "discommod[ing] some other persons" but such conduct alone does not necessarily give rise to disorderly conduct]). 22 Both Carcel and Nixon involved Penal Law § 722, the predecessor statute to Penal Law § 240.20, which provided in part that "[i]n cities of five hundred thousand inhabitants or over any person who, with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned . . . congregates with others on a public street and refuses to move on when ordered by the police" is guilty of disorderly conduct. Thus, as the information fails to set forth a prima facie case of disorderly conduct under Penal Law § 240.20 (5), the accusatory instrument is jurisdictionally defective and must be dismissed.

Also, since those allegations were insufficient, the charge of Resisting Arrest also had to be dismissed, since without sufficient facts for Disorderly Conduct, the information was also insufficient to show that the arrest was authorized.

As the information failed to allege sufficient facts to support the underlying disorderly conduct charge, those facts could not be deemed sufficient to allege that the arrest was "authorized" as required under Penal Law § 205.30.

.

I Think I Just Asked For An Attorney

When a suspect being questioned tells the police that “I think I need an attorney” and the police officer writes in his notes that the suspect “asked for” a lawyer, there is no support for a holding that the request for counsel was equivocal. That apparently non-exceptional statement is the holding of the Court of Appeals in People v Porter, _ NY3d _ [11/15/07]. What makes it worth noting is that a divided Appellate Division, Fourth Department ruled otherwise (Here).

The majority’s description of the facts omitted any mention of the officer’s notes. By contrast, the dissenting opinion of Justice Gorski, not only mentioned the police officer's notes, but explained that they reflect his understanding of what the suspect’s statement - that he had "asked for" an attorney. Justice Gorski’s dissent also pointed out that “.. in advising defendant that his statement did not sufficiently invoke his right to counsel, the officer effectively dissuaded defendant from further efforts to invoke his right to counsel.”

It should be noted that the Court of Appeals did not hold that interrogation must cease every time a suspect being questioned by the police says “I think I need an attorney.” Rather, the Court held that

This is not to say that utterance of the words defendant used would unequivocally invoke the right to counsel in every instance. But on this record, where there were no additional facts upon which a contrary inference could be drawn, further inquiry by the police was not permitted.

More decisions from November 9, 2007

People v Adams, 2007 NY Slip Op 08571 [4th Dept 11/09/07] - holding that

the court erred in increasing defendant's sentence from concurrent to consecutive terms after he refused to sign the no-contact order of protection. That "increase cannot be justified under sentencing procedures nor supported under the guise of punishment for contempt of court" (People v Culpepper, 33 NY2d 837, 838, cert denied 417 US 916).

However, this decision is also a reminder that a defendant who received an unlawfully low sentence might want to think twice before appealing:

we conclude that the sentence is illegal because it was not in compliance with Penal Law § 70.06 (4) (b). The court sentenced defendant to terms of 2 to 7 years on the burglary [*2]count and 1 to 4 years on the criminal contempt count but, pursuant to section 70.06 (4) (b), the minimum period of imprisonment for an indeterminate sentence must be one half of the maximum imposed (see generally People v Chappelle, 282 AD2d 834).

People v Huggins, 2007 NY Slip Op 08619 [4th Dept 11/9/07] -- pointing out a limit on waivers of appeal:

Defendant's further contention that the enhanced sentence is unduly harsh and severe also is not encompassed by the waiver of the right to appeal "because the court failed to advise defendant of the potential period of incarceration that could be imposed" for an enhanced sentence (People v Trisvan, 8 AD3d 1067, lv denied 3 NY3d 682; cf. People v Jackson, 34 AD3d 1318, lv denied 8 NY3d 923; see generally People v Lococo, 92 NY2d 825, 827).

People v Mills, 2007 NY Slip Op 08573 [4th Dept 11/09/07] -- reversing for failure to charge justification based on a choice of evils defense:

Defendant testified that he and another passenger in the vehicle were arguing and subsequently engaged in a fistfight outside the vehicle. When a group of men gathered around the fistfight, defendant became fearful that he would be attacked by the group, whereupon he entered the vehicle and drove from the scene. County Court erred in denying defendant's request for a justification charge. Considering the evidence in the light most favorable to defendant, we conclude that there is a reasonable view of the evidence that defendant's conduct was justified "[u]nder the choice of evils' theory of Penal Law § 35.05 (2)" as a means to avoid an imminent attack (People v Maher, 79 NY2d 978, 981; see People v Padgett, 60 NY2d 142, 145-146; People v Newman, 3 Misc 3d 361, 363).

Must IAC Claims Be Preserved?

In People v Jones, (55 NY2d 771 [1981]), the Court of Appeals held that claims of ineffective assistance of counsel (IAC) may be raised for the first time on appeal. A contrary holding would penalize a defendant who received ineffective assistance for the failure of the deficient counsel to preserve the issue of ineffectiveness. Since few ineffective attorneys are likely to preserve the issue of their ineffectiveness, virtually all IAC claims (including those with merit) would be unpreserved and unreviewable. Subsequently, the Court in People v Angelakos (70 NY2d 670 [1987]), cited Jones in reviewing an unpreserved claim of IAC in an appeal from a guilty plea.

Recently, however, the Appellate Divsion, Fourth Department, has held in a series of cases, such as People v Barra (2007 NY Slip Op 08644 [11/9/07]) and People v Fairman (38 AD3d 1346, lv denied 9 NY3d 865 [2007]), that claims of IAC have not been preserved for review where the defendant did not move to withdraw the plea or admission or to vacate the judgments of conviction based on the alleged denial of effective assistance of counsel. These Fourth Deparment decisions do not cite Jones or Angelakos. One wonders whether the Fourth Department is applying this preservation requirement even where the defendant did not have access to different counsel until one was assigned for the appeal.

Appellate Review of Bargained for Sentences

In its November decisions, the Appellate Division, Fourth Department twice (here and here) held that

Where, as here, a "defendant effects a plea bargain and receives the precise sentence that was promised, he should not later be heard to complain that he received what he bargained for" (People v Chambers, 123 AD2d 270, 270; see People v Dixon, 38 AD3d 1242).

Considering that the Court of Appeals in People v Thompson, 60 NY2d 513 [1983] has expressly held that the Appellate Divisions have the authority to review even bargained for sentences, one might be curious about the holdings in Chambers and Dixon.

In People v Chambers, the First Department actually reduced the bargained for sentence, holding that

Ordinarily, of course, where defendant effects a plea bargain and receives the precise sentence that was promised, he should not later be heard to complain that he received what he bargained for (People v. McCullers, 40 AD2d 796, 797, affd 33 NY2d 806). Here, however, there are special circumstances deserving of recognition.

Dixon is a Fourth Department decision citing Chambers and People v. McCullers, 40 A.D.2d 796 [1972] in which the First Department held that

...the defendant received no greater sentence than it was understood he would receive. He cannot now complain because a promise was kept.

Of course McCullers was rendered more than a decade before the Court of Appeals in Thompson, for the first time clearly held that appellants can raise such claims and that intermediate appellate courts in New York do have the authority to reduce bargained for sentences. The only other case cited in Dixon is People v Northrup, 23 AD3d 1102 [4th Dept 2005], another Fourth Department case which cited only Chambers and McCullers as support for this holding.

These decisions of the Fourth Department neither cite nor distinguish Thompson or People v Delgado, 80 NY2d 780 [1992](in which the Court of Appeals again confirmed the Appellate Divisions' authority to reduce bargained for sentences).

Here is what the Court wrote in Thompson

...the Legislature has adopted procedures at the intermediate appellate level, conferring different authority to reduce sentences on the Appellate Divisions than has been granted to the individual Trial Judges.....
The Legislature has also prescribed the corrective action the Appellate Division must take if it decides that a sentence legally imposed is excessive under the circumstances of a particular case....Thus the Appellate Division was not bound, as it assumed, to afford the People the option of withdrawing their consent to the plea once it concluded in the exercise of its discretion that the sentence imposed was excessive. Its first order, simply reducing the sentence to a lesser term, was in accord with the relevant statute. It was also consistent with the well-established practice. The power of the Appellate Division to reduce a sentence, which it finds unduly harsh or severe, in the interest of justice and impose a lesser one has long been recognized in this State. It was originally exercised as an inherent power (see, e.g., People v. Miles, 173 App.Div. 179, 183-184, 158 N.Y.S. 819) and was later codified in section 543 of the Code of Criminal Procedure. When the Legislature adopted the current CPL in 1971 it again expressly authorized the practice, without substantive change (CPL 470.15, subd. 6, par. [b]; 470.20, subd. 6). The defendant did not, as the People urge, lose his right to seek appellate review of his sentence by pleading guilty....If the exercise of this power frustrates the People's expectations in cases involving negotiated sentences it is not the result of any change in the law. The statute is clear on its face and has been uniformly, albeit rarely, employed in the past. It presents a risk, although a minimal one, which presumably is taken into account or discounted at the time of the plea negotiations.

It appears that the recent jurisprudence of the Appellate Division, Fourth Department is inconsistent with this holding. It further appears that no other Appellate Division has held since Delgado that a defendant may not complain on appeal about the fairness of a bargained for sentence. Thus, these decisions might present an issue meriting the granting of leave to appeal.

Ed Nowak -- Appellate Superstar

Its been two week since Ed Nowak has announced his plans to retire after serving thirty years as the Monroe County Public Defender. Since then numerous people have expressed to me their appreciation of Ed's impressive accomplishments as Public Defender. Many have referenced Ed's ability to attract and keep highly qualified attorneys and support staff dedicated to providing high quality representation to our clients. Others have focused their comments on Ed's contributions, both on a local and state level, to achieving a just criminal justice system . Still others have mentioned how they have come to depend on Ed and his lectures on the decisions of the Court of Appeals as as a key way of keeping informed of developments in New York law. All of these accolades are obviously well deserved. Yet, I think that there is one aspect of Ed's achievements as a Public Defender that has received insufficient attention -- Ed's remarkable achievements as an appellate advocate.

Ed was 29 years old and already the Monroe County Public Defender when he argued and won Dunaway v New York, 442 US 200 [1979]. To appreciate how big a victory that was, one needs to realize that not only had had the New York Court of Appeals held in People v Morales,42 NY 2d 129 [1977] that only reasonable suspicion was needed to hold someone for questioning , but the Appellate Division, Fourth Department had already held in Dunaway that, even if his detention was unlawful, Mr. Dunaway's statement was attenuated from any such illegality. Ed persuaded the Supreme Court that there is a higher standard to be met before a person can be detained for purposes of questioning. Justice Brennan's decision in Dunaway already been cited more than 6300 times.

At age 33, Ed argued and won People v Parker, 57 NY2d 136 [1982], getting the Court to vacate Ms. Parker's conviction because she had not been told of the consequences of her failure to appear at her trial. Ed had argued for and achieved more than a reversal for Ms. Parker. Instead of simply arguing that she had not knowingly waived her right to be present at trial, Ed sought and obtained a ruling that in order for any defendant's absence from trial to be found to be knowing, intelligent, and voluntary, defendants first must be warned as to what would occur if they fail to appear. On the long drive back from Albany and that oral argument, the young attorney in the car with Ed, having witnessed the tough questioning which Ed had just endured, suggested that perhaps Ed should have taken the more moderate approach and just sought a narrow win. I guess I was wrong.

So by age 33, Ed was responsible for Dunaway hearings and Parker warnings.

By the way, Ed was also the winning attorney in People v Brooks, 75 NY2d 898 [1990], in which the Court held that even when "Parker warnings" are given, it is error to proceed in abstentia without there being a a record and determination establishing that the defendant's absence was deliberate.

Even when Ed failed to obtain reversal of his client's convictions, his work made a huge impact on the development of law. For example, in People v Lipsky, 57 NY2d 560 [1982] the Court of Appeals ruled against Ed and reinstated the murder conviction of his client Leonard Lipsky. this was a case in which there was no body and Mr. Lipsky's statement was the primary, if not exclusive, evidence of death. The Court of Appeals held that Mr. Lipsky's confession was sufficiently corroborated despite the fact that body of victim was never found and there was no direct evidence, other than confession, that defendant caused the victim's death, since there was circumstantial evidence calculated to suggest that victim was dead and implicating defendant as the criminal agency, the key to which was furnished by defendant's confession. After losing at the Court of Appeals Ed got the Appellate Division, Fourth Department, on further appeal, to reverse the conviction of the ground that the corroboration of the confession was insufficient under the instruction given to the jury. (Murder prosecution and convictions when there is no body are still subject to the peril (and embarrassment) that someone might see the supposed decedent alive after the time of the supposed homicide. See last week's headline).

But the loss which bothered Ed the most (other than the many losses by Notre Dame) was the 4-3 decision of the Court in People v Register, 60 NY2d 270 [1983] that "depraved indifference" is neither a mens rea nor an actus rea. For more than twenty years Ed would complain how the Register decision made deprave murder such a standardless, amorphous concept that it violated due process. Of course, our office raised that argument unsuccessfully in People v Johnson, 87 N.Y.2d 357 [1996]. But finally, in 2003, in People v. Feingold, 7 N.Y.3d 288 [2003], the Court recognized that it had erred in Register and that, as Ed had argued, depraved indifference to human life is a culpable mental state. Having that loss corrected and undone, I guess Ed feels he is now free to retire.

I could go on, but I think the point is clear. Ed's contributions as an appellate attorney are as impressive as his many other achievements.

It's ineffective to not raise claims of ineffective assistance of counsel

At a recent CLE on Appellate Ethics the question was raised as to whether it was a good use of appellate counsel’s time to raise claims of ineffective assistance of counsel (IAC), given the small number of reversals on that ground. I resisted the temptation to answer that, using that logic and given the small percentage of reversals on any issue, perhaps it is a waste of time for an attorney to work on all but a few criminal appeals. But I was glad for the question, because it insured that I would give adequate time to addressing why IAC is perhaps the most important issue to raise when there is a non-frivolous basis for believing trial counsel was ineffective.

First, we owe it to our clients. Courts have repeatedly recognized that the right to counsel is the perhaps the most fundamental of all of the rights of a defendant in a criminal case since it is through the right to counsel that other rights are protected. Further, courts recognize that the right to counsel means the right to effective assistance of counsel, since otherwise it is not a meaningful right at all. A defendant who received IAC, not only is deprived of the right to counsel, but of the protection of his other rights, as well. It is the essential function of appellate counsel to point out the deprivation of a client’s rights, particularly a deprivation which transforms the process into one with a veneer of protections though counsel. If you don’t care enough about your clients to point out when they received IAC in the lower court, find other work. Besides, your chance of reversal on other grounds appears to increase when a strong issue of IAC is raised even when that issue is not the basis of reversal (or even mentioned in the decision). Even an unpreserved bolstering issue raised in point 2 can be a basis for reversal when the first point is a strong IAC point (See, e.g. People v McCullough, 38 AD3d 1203 [4th Dept 2007].

Second, we owe it to our profession. If we silently tolerate lawyering that you wouldn’t wish on the guy who burglarized your house, the standards as to what is acceptable for our profession will either drop to or remain (depending on one’s perspective) at the constitutionally required minimum. We should expect more of ourselves than that very low – there might well have been some strategic basis for the action/inaction which severely damaged the client’s case – standard. One key way of pushing defense attorneys to do things as basic as renewing TOD motions (as required by the Court of Appeals since 2001, for legal sufficiency claims to be reviewable as a matter of law, yet this term like almost every term the Fourth Department has refused to review claims of legally insufficiency due to counsel's failure to renew -- see, here and here), is to keep on pointing out how inexcusable it is for attorneys to fail to know the relevant law and to display an understanding of what evidence will help or hurt their clients.

Third, we owe it ourselves. Courts have granted writs of error coram nobis based on the ineffective assistance of appellate counsel who have failed to raise the issue of IAC of trial counsel (See, e.g, People v Johnson, 43 AD3d 1453 [4th Dept 2007]. An easy way to avoid this embarrassment is to raise the issue when presented.

Fourth, we owe it to the appellate courts. If the issue of IAC is not presented with the brief marshaling the facts and arguments in support of the claim, the appellate court cannot be fairly expected to reach out and reverse on the issue. Nor can the court be expected to develop an understanding of the quality of counsel offered by a particular attorney who repeatedly engages in substandard work, unless appellate briefs point out the cases in which counsel provided lousy representation.

Finally, if we don’t raise the issue of IAC we will not experience the satisfaction that Eric, the former author of this blog must be feeling tonight, having won a reversal on IAC grounds in People v Rivera, 2007 NY Slip Op 08488 [4th Dept 11/09/07].

The basis of reversal? A prospective juror told the court that she was "embarrassed to really say it, but [she had] trouble with the intent to sell" and, for defendant's "sake, [she] probably wouldn't be able to go in with an open mind."

In response to a question by County Court whether she "would have difficulty setting aside that feeling," the prospective juror responded "Uh-huh." The court thereafter asked whether either the prosecutor or defense counsel objected to excusing the prospective juror, and defense counsel indicated that he had a problem excusing her at that point. Defense counsel then reminded the prospective juror that the court had instructed the prospective jurors that, if a vote with respect to defendant's guilt were to be taken at that time, the jury would have to find defendant not guilty because no evidence had been presented. When asked whether she would have difficulty "rendering that verdict now if asked to do so," the prospective juror responded "I don't know." Defense counsel stated that, if there was no evidence, "[y]ou can't find him guilty of anything. Is that okay?" The prospective juror then responded "Um-hum."The prosecutor challenged the prospective juror for cause, despite his belief that she would be "beneficial" to his case. Defense counsel stated that there "might be a question" with respect to the prospective juror but he believed that, when questioning her, "she indicated pretty clearly that she would decide the case on the evidence." The court stated to defense counsel, "She seemed to indicate that she has a problem with the intent to sell drugs." The court then asked defense counsel, "[it] doesn't bother you?" and defense counsel responded in the negative.

The Court concluded that

Although defense counsel's decision not to consent to the removal of the prospective juror from the panel for cause may have been one of strategy ... we conclude that any such strategy "fell short of an objective standard of reasonableness" (People v Turner, 5 NY3d 476,485 [2005]), and we thus conclude that defendant was denied a fair trial.

Listen to the Police

From Jim Eckert:

At pretrial suppression hearings, the hearing court will often rule that
the arresting officer's opinion whether he arrested the defendant is
irrelevant, since objective facts, not the officer's subjective belief,
controls when an arrest occurs. Also, because the answer is usually
beneficial to the defense, and we can't have that. I always thought it was
relevant, because the officer's intent could be expected to affect how he
dealt with an individual, and therefore valid circumstantial evidence if
nothing else - relevance is a very low threshold.

In any event, a Court of Appeals case issued in a Family Court proceeding
lends support to the relevance of the officer's subjective belief that he had arrested the defendant:

In the Matter of Victor M., A Person Alleged to be a Juvenile Delinquent

Finally, the presentment agency argues before us that Officer Recio's detention of Victor was not an arrest, but only a stop based on a reasonable suspicion that Victor was trespassing or loitering (see People v Hicks, 68 NY2d 234, 238-239 [1986]; People v DeBour, 40 NY2d 210, 223 [1976]). The flaws in this argument are many. Officer Recio testified to an "arrest," not a temporary detention. Temporary detentions are authorized by statute only for felonies and misdemeanors, not violations (CPL 140.50 [1]). A temporary detention justifies only a frisk, not a full-fledged search (DeBour, 40 NY2d at 223). And finally, assuming that transporting a suspect to the station house in handcuffs could ever be found to be only a temporary detention under DeBour and Hicks, even a temporary detention is unlawful if it is not reasonable under the circumstances. Here, nothing in the record shows that it was reasonable for Officer Recio to take Victor to the station house, instead of going with him to his apartment to get his identification.

The court's phrasing ("testified to an 'arrest'"), and use of quotation
marks around the term "arrest", lead one to believe that the Court is
relying on the officer's testimony (i.e. his subjective belief) that he
arrested the juvenile. Since it was an important part of a decision of the
Court of Appeals, one would think it would be fair to argue that whether a police officer believes he arrested the defendant or not meets the test of mere
relevance.

September Term Roundup

There were only two reversals in criminal appeals this term, People v Rodriguez (2007 NY Slip Op 07123)(Here, discussed previously) and People v Jones 2007 NY Slip Op 07249)(Here), in which after a remand for the trial court to make fact finding on whether the search was consensual, the Court that

the People did not meet their burden of demonstrating the legality of the police conduct, and thus the court suppressed the tangible evidence seized pursuant to the purportedly consensual search of the vehicle. We reject the People's contention that the court erred in its determination. In reviewing suppression issues, great weight is accorded to the determination of the court "with its peculiar advantages of having seen and heard the witnesses" (People v Prochilo, 41 NY2d 759, 761; see People v Williams, 202 AD2d 976, lv denied 83 NY2d 916). Here, the court's factual findings are supported by the evidence and should not be disturbed (see generally People v Miller, 244 AD2d 828).

The Court thus reversed the conviction.

Some other decisions which caught my eye, include

People v Adams (2007 NY Slip Op 07237)(Here) an appeal from an arson conviction in which the defendant urged

that the expert testimony of the arson investigator at trial improperly invaded the jury's province. Although we agree with defendant that County Court erred in allowing the arson investigator to testify that the fire was intentionally set, we conclude that the error is harmless.

People v Bryant (2007 NY Slip Op 07182)(Here)in which the Court held that despite the victim testifying at trial that one of the police officers who showed her a photo array pointed to one of the photographs and said, "[I]sn't that the guy in one of those pictures" it was not error for the court to deny defense motion to reopen the Wade hearing. The Court explained

In denying defendant's motion, the court stated that the victim "seemed somewhat confused" during her testimony and ruled that it would allow defense counsel to point out the identification issue to the jury during summation. The court also permitted defense counsel to cross-examine the police officers involved in the identification procedure, and both officers denied directing the victim to select a particular photograph. We therefore conclude that the court did not abuse its discretion in denying defendant's motion to reopen the Wade hearing
Thus, a defendant cannot call the victim as a witness at the pre-trial Wade hearing and cannot get the hearing reopened when the victim finally testifies at trial and gives describes a suggestive procedure..

On a more pleasant note, People v Agha (2007 NY Slip Op 07187)(Here remanded a case for resentencing, because it was confident that the sentencing court's claim that it had not considered impermissible information in imposing sentence was accurate.

At sentencing, County Court referred to a prior conviction of defendant's brother for a similar crime. The court indicated that, in the prior case and the instant case, defendant's brother had come to the defense of defendant. Defendant objected on the ground that he was not charged in the prior case involving his brother. Although the court stated that it would not draw an adverse inference against defendant based on the prior case, we conclude on the record before us that the court may in fact have relied upon information that was inaccurate in sentencing defendant (see People v Gardner, 28 AD3d 1221, 1223, lv denied 7 NY3d 812).

Judge Smith dissented.

In People v Vasquez (2007 NY Slip Op 07168) (Here), after again holding that

[b]y failing to object to County Court's ultimate Sandoval ruling, defendant failed to preserve for our review his contention that the court abused its discretion in ruling that the People could cross-examine him with respect to a previous conviction of rape

the Court reduced Mr. Vasquez's sentence to 7½; to 15 years explaining

in view of the circumstances of this case, including the small quantity of cocaine possessed and sold by defendant, we conclude that the sentences imposed for the criminal sale of a controlled substance in the third degree and each count of criminal possession of a controlled substance in the third degree are unduly harsh and severe.

The decision does not set forth the circumstances nor the quantity of cocaine involved.

Similarly, in People v Miller (2007 NY Slip Op 07121) (Here), the Court lowered the SORA risk level, where

The point total on the risk assessment instrument prepared by the Board of Examiners of Sex Offenders (Board) presumptively classified defendant as a level one risk, and the Board did not recommend an upward departure from that risk level. We conclude on the record before us that County Court erred in granting the People's request for an upward departure from defendant's presumptive risk level to a level three risk. "The People failed to demonstrate by clear and convincing evidence the existence of an aggravating factor of a kind or to a degree not otherwise adequately taken into account by the guidelines that would warrant such an upward departure" (People v Fuller, 37 AD3d 689; see People v Burgos, 39 AD3d 520).

Renewal Required

The need to renew previously made requests has been in the news recently with lots of reminders that if you don't a request to be on the "Do Not Call Registry" you can expect a bunch of unwanted phone calls ( Example). And for years New York courts have been reminding us, in not quite so friendly a fashion, 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, including the defendant's (Here).

The impact of this requirement to renew TOD motions if the defense puts on any proof was highlighted again by two decisions of the Appellate Division, Fourth Department issued on September 28th.

In People v Rodriguez (2007 NY Slip Op 07123)(Here) a depraved murder conviction was reversed and indictment dismissed where the Court held

that there is no valid line of reasoning and permissible inferences that could have led the jury to conclude that his conduct was reckless rather than intentional, particularly in view of the number and severity of the wounds inflicted on the victim

In Rodriguez, the evidence at trial

included forensic testimony establishing that defendant stabbed the victim eight times and that four stab wounds punctured her lungs and two struck her heart.

By contrast, in People v Wright (2007 NYSlipOp 07167)(Here), in which the defendant contended
that the evidence was legally insufficient to support the crime of depraved indifference murder because the People failed to establish the uncommon brutality and utter wantonness required for that crime, the Court held that

By failing to renew his motion to dismiss after presenting evidence, defendant failed to preserve that contention for our review (see People v Lane, 7 NY3d 888, 889; see also People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678).

That was the same type of claim that the Court reversed on in People v Casper (Here) last term.

As to the claim that there could be no trial strategy justifying the defense counsel's ignoring the long established requirements of Hines, the Court wrote

We reject the contention of defendant that defense counsel's failure to renew his dismissal motion after he presented evidence amounted to ineffective assistance of counsel.

No authority for no kids

Three years ago there was world wide media coverage of a decision by a Family Court judge in upstate New York which ordered that a woman with a history of drug abuse not have have any more children (Example: here ).

The actual language of the order was that the woman

shall not get pregnant again until and unless she has actually obtained custody and care of [all her children].

This do not procreate order was unprecedented in New York and had been issued without any notice to the parties. Yesterday, in an appeal briefed and argued by Eric, the founder of this blog, the Appellate Divison, Fourth Department reversed.(Available here ).

After holding that the court had erred in refusing to hold a hearing on before imposing such an unprecendented condition, the Court ruled that the Family Court, which

possesses only the power which is explicitly conferred on it by statute

had no authority to impose the "no pregnancy" condition.

The Court did not reach the constitutional grounds for the appeal.

The reversal is getting almost as wide a play as the original decision (example).

Oh

In People v Rivera, 2007 NY Slip Op 06583,the Court of Appeals had an opportunity to provide courts and practitioners guidance as to the circumstances when a prospective juror's use of the words “try” and “believe,” in response to being questioned about whether he could be fair, is so equivocal that a for cause challenge must be granted. Perhaps the best measure of how difficult it has been for lower courts to apply the Court of Appeals prior holdings on this issue are the three lengthy opinions authored by the First Department panel that heard this case (People v Rivera, 33 AD3d 303 [1st Dept 2006] [here].

So what did the Court hold?

The trial court did not err as a matter of law in denying defendant's for-cause challenge to prospective juror R.P. (see People v Arnold, 96 NY2d 358,362-363 [2001]; People v Johnson, 94 NY2d 600, 610-614 [2000] [available [here]).

People v Rivera, 200 NY Slip Op 06583 [here].

Just so it is clear, that was the Court's entire discussion of this issue. Hope that clears things up. (But didn't the Court hold in Arnold that similar language was too equivocal?)

Under New Management

I am leaving the Monroe County Public Defender's Office at the end of the month. I'll be joining these guys, doing mostly civil litigation. Since I will not be practicing much criminal law, I have decided to hand the reigns of this blog over to Brian Shiffrin. He is the First Assistant Public Defender here in Monroe County, and he has also been my supervisor during the entire time this blog has been up. I think it might be the first time in the history of blogging that a boss has taken over the blog of an employee. Brian brings enormous experience and talent to the table; it has been a great experience learning from him the past several years, and I am extremely happy that he has agreed to take over the day-to-day posting responsibilities here at Indignant Indigent. This blog is in very good hands going forward.

Lightning Round

Time to clear the hopper before I shut this thing down for the summer. Here are brief summaries of the most recent decisions from the Court of Appeals and the Fourth Department. Regular posting will resume when decisions start coming down again in the fall.

COURT OF APPEALS:

People v Nieves-Andino, 2007 NY Slip Op 05584 [available here]

Writing for the majority, Justice Pigott holds that a shooting victim's response to police questioning at the scene of the shooting was not testimonial because, although the assailant had fled the scene, "the circumstances of the police officer's questioning of the victim . . . objectively indicate[d] that the officer reasonably assumed an ongoing emergency and acted with the primary purpose of preventing further harm." (Nieves-Andino, 2007 NY Slip Op 05584.) Justice Jones concurred and would have held that the statements were testimonial because the shooting was over, the shooter had fled, and the police had downshifted into "investigation" mode by the time the challenged statement was elicited, but any error was harmless. (Id at __ [Jones, J., dissenting].)

People v Lito, 2007 NY Slip Op 05582 [available here].)

The definition of "intoxication" for purposes of section 1192[3] of the VTL "refer[s] to a disordered state of mind caused by alcohol, not by drugs." (Lito, 2007 NY Slip Op 05582.)

People v Bratton, 2007 NY Slip Op 05135 [available here]

Parole officers do not have the power to make warrantless arrests for parole violations "even if committed in their presence. A member of the Board or a designated officer of the Division must issue a warrant." (Bratton, 2007 NY Slip Op 05135.)


FOURTH DEPARTMENT

People v Casper, 2007 NY Slip Op 05851 [available here]

Evidence that "defendant caused the death of his wife by causing or allowing the van in which she was a passenger to go over a cliff" was not uncommonly brutal enough to sustain a conviction for depraved indifference murder. (Casper, 2007 NY Slip Op 05851.)

People v Extale, 2007 NY Slip Op 05855 [available here]

The Court reversed Mr. Extale's convictions for first-degree Assault and first-degree vehicular assault because the jury's verdict convicting on both counts was inconsistent. "Assault in the first degree requires a finding that defendant acted intentionally, while vehicular assault in the first degree requires a finding that defendant was criminally negligent. [...] It cannot be said that defendant simultaneously intended to cause serious physical injury to the police officer while failing to perceive a substantial and unjustifiable risk of serious injury to the police officer." (Extale, 2007 NY Slip Op 05855.)

People v Minter, 2007 NY Slip Op 05866 [available here]

The defendant's motion to vacate his plea should have been granted because the trial court "failed to advise defendant at the time of the plea that his sentence would include a mandatory period of postrelease supervision." (Minter, 2007 NY Slip Op 05866.)

People v Finley, 2007 NY Slip Op 05868 [available here]

Defendant was convicted of possessing "dangerous" contraband in prison. The "dangerous" contraband was one marijuana cigarette that the inmate tossed to the ground when confronted by a guard. While acknowledging that marijuana is not necessarily "dangerous" contraband, the Court held that the defendant made the marijuana dangerous by throwing it to the ground. Seriously. From the opinion:

A Deputy Inspector General for the Department of Corrections testified that defendant's possession of marihuana endangered the safety of the correctional facility because, by throwing the marihuana on the ground, defendant created a heightened risk that another inmate would attempt to grab the marihuana and that the correction officer would then have to chase after the other inmate. In addition, the correction officer had to turn his back and walk away from defendant in order to retrieve the marihuana that was thrown on the ground, thus creating a heightened risk of injury to the officer. Moreover, by focusing his attention on defendant and the marihuana, the officer was no longer able to supervise the inmates on his block.

(Finley, 2007 NY Slip Op 05868.)

Of course, none of that stuff actually happened. Is the fact that the defendant dropped his marijuana cigarette instead of putting it in his pocket really the elevating factor here worthy of extra punishment for possessing "dangerous" contraband? Seriously, this is where the Court is drawing the line? Oy.

People v Syrell, 2007 NY Slip Op 05903 [available here]

The trial court erred in imposing an enhanced sentence in defendant's absence without first inquiring "into the possibility of locating defendant within a reasonable period of time [...]." (Syrell, 2007 NY Slip Op 05903.)

People v Clark, 2007 NY Slip Op 05920 [available here]

The trial court's failure to "set forth any basis for its Sandoval ruling" leads the Fourth Department to conclude "that the court abdicated its responsibility to balance the Sandoval factors and determine that the probative value of the evidence outweighed the potential prejudice to defendant." (Clark, 2007 NY Slip Op 05920.) Harmless, though. (See id.)

AD4: Decisions for June 8, 2007

Reckless shooting not uncommonly brutal enough to support depraved indifference murder conviction; applying standard of dismissal appropriate for prospective juror to sworn juror is reversible error

People v Gilmore, 2007 NY Slip Op 04908 [available here]

During the course of a botched robbery of a drug dealer, Mr. Gilmore shot the dealer once in the arm and once in the back. Eyewitnesses testified that the dealer was shot in the back while fleeing; Mr. Gilmore testified that the dealer drew his own gun, and Gilmore fired the fatal shots "backward in the victim's direction." (Gilmore, 2007 NY Slip Op 04908.) Under either view, a majority of the Court holds that the evidence was not sufficient to support a conviction for depraved indifference murder. "The one-on-one shooting was not 'marked by uncommon brutality', 'or any other hallmark of wanton recklessness necessary to demonstrate circumstances evincing a depraved indifference to human life.'" (Id. at __.)

The Court also reversed and remanded for a new trial on the remaining counts based on the trial court's error in handling the discharge of a sworn juror. After being sworn, a juror approached the court and informed them that "his brother was imprisoned on 'trumped-up charges.'" (Id. at __.) When asked if he could be fair and impartial, the juror repeatedly said, "I don't know." (Id. at __.) In discharging the sworn juror over defense counsel's objection, the trial court applied the standard for determining if a prospective juror should be struck, i.e. whether the juror can give unequivocal assurances of his ability to be fair and impartial. A majority of the Court reversed based on the trial court's failure to use the "grossly unqualified" standard applicable to the dismissal of a sworn juror. (Id. at __.)

Presiding Justice Scudder dissented on both scores. The presence of bystanders in the vicinity of the shooting was enough to elevate Mr. Gilmore's conduct from reckless to depraved, and regardless of the standard actually articulated by the trial judge, the record of the colloquy between the lower court and the sworn juror was sufficient to establish that the juror was, in fact, grossly unqualified to continue service and any error in applying the incorrect standard was essentially harmless. (Id. at __ [SCUDDER, J., dissenting.]

Since I was Mr. Gilmore's attorney on appeal and it is possible leave to appeal to the Court of Appeals will be granted, I will leave my comments on this case for another day.


One-on-one stabbing not depraved indifference murder

People v Smothers, 2007 NY Slip Op 05017 [available here]

Two girls vandalized the defendant's car. Perhaps overreacting, the defendant started chasing the girls with "a large kitchen knife." (Smothers, 2007 NY Slip Op 05017.) Somebody called out to the defendant to "watch her back", so the defendant "suddenly turned around and stabbed a third girl who had arrived with the other girls but who had taken no part in vandalizing her car." (Id. at __.) According to an eyewitness, the defendant struck "wildly with the knife." (Id. at __.) On those facts, the Fourth Department held that the evidence was not sufficient to support the defendant's conviction for depraved indifference murder. (Id. at __.) But since the evidence supported a finding of bare recklessness, the Court reduced the conviction to second-degree manslaughter. (Id. at __.)


Failure to advise client that he will be deported if he pleads guilty is not ineffective assistance of counsel

People v Johnson, 2007 NY Slip Op 05033 [available here]

Mr. Johnson made a 440.10 motion alleging that he was denied effective assistance of counsel when his attorney "erroneously advised him that his guilty plea would have no effect on his immigration status [...]." (Id. at __.) The Fourth Department found no evidence of an affirmative misstatement of law by the attorney. It was undisputed that defense counsel did not inform Mr. Johnson that his guilty plea would automatically result in his deportation, but that omission, standing alone, was not enough to establish ineffective assistance of counsel. "'Deportation is a collateral consequence of conviction because it is a result peculiar to the individual's personal circumstances and one not within the control of the court system', and the failure to advise a defendant of a collateral consequence of a guilty plea, as opposed to giving affirmative incorrect advice, does not constitute ineffective assistance of counsel." (Id. at __ [citations omitted].) True enough that deportation is a collateral consequence of the plea and therefore does not have to be mentioned by the court during the plea colloquy. But it is hard to imagine any cogent standard of practice that allows defense counsel to ignore what in many cases is the most significant consequence of a plea.


Ineffective assistance of counsel issue must be preserved by 440.10 motion where claimed deficiency is failure to seek suppression of critical evidence

People v Marcial, 2007 NY Slip Op 05069 [available here]

Mr. Marcial was charged with possessing drugs that were found in his pocket upon arrest. For reasons unknown, defense counsel below failed to make a motion to suppress the drugs. Not enough, standing alone, to establish ineffective assistance of counsel, says the Fourth Department. "[W]e note that it is troubling that defense counsel failed to seek to suppress the drugs found on defendant's person because a lack of physical evidence would have been defendant's only conceivable defense to that drug possession charge. Nevertheless, 'prudence dictates that the issue of ineffective assistance of counsel be raised in a posttrial application . . . where a thorough evaluation of each claim based on a complete record can be made.'" (Marcial, 2007 NY Slip Op 05069.)


Inclusory concurrent counts must be dismissed; no preservation required

People v Moore, 2007 NY Slip Op 04900 [available here]

The defendant was convicted and sentenced on three counts of first-degree sexual abuse and three counts of forcible touching based on the same underlying facts. The Fourth Department holds that the forcible touching counts are inclusory concurrent counts to the first-degree sexual abuse, and therefore the forcible touching counts "must be dismissed as a matter of law because 'a verdict of guilty upon the greater [count] is deemed a dismissal of every lesser [inclusory concurrent count].'" (Moore, 2007 NY Slip Op 04900 [brackets in original].) Previous decisions from the Fourth Department required preservation of this issue by a posttrial motion to vacate the inclusory concurrent counts, but the Court in Moore holds that preservation is not required and those cases "are no longer to be followed." (Id. at __.)


First-degree murder sentences imposed after lower court gave unconstitutional deadlock instruction must be vacated

People v Santiago, 2007 NY Slip Op 04913 [available here]

The defendant was sentenced upon his convictions for first-degree murder after the jury was given "the deadlock instruction contained in CPL 400.27[10]." (Santiago, 2007 NY Slip Op 04913.) The Court of Appeals has held that the deadlock instruction is unconstitutional because it could conceivably coerce jurors into voting for the death penalty. Since Mr. Santiago was sentenced after the jury was given the faulty deadlock instruction, the Fourth Department vacated the sentences imposed on the first-degree murder convictions and remanded for resentencing. (Id. at __.)


Bank robber fleeing into house upon (maybe) seeing cop = burglary

People v Porter, 2007 NY Slip Op 04923 [available here]

Defendant was convicted of burglary on the theory that, after robbing a bank, he entered a house while fleeing to evade a police officer. Thus, he entered the house with the intent to commit the crime of resisting arrest. (Porter, 2007 NY Slip Op 04923.) On appeal, defendant argued that the evidence was not sufficient to support the burglary conviction because the People failed to prove the he entered the house with the intent to commit the crime of resisting arrest. The Fourth Department rejected that argument. After robbing the bank, the defendant fled on foot, and after a time was spotted by a police officer. "The officer was in his vehicle approximately one block away from defendant, and he testified that defendant was running directly toward him when defendant turned abruptly into a house." (Id. at __.) From that evidence, "the jury could reasonably infer . . . that defendant observed the officer approximately one block away and that he therefore unlawfully entered the house with the intent to prevent or attempt to prevent the officer from effecting an authorized arrest." (Id. at __.)


Statement made to doctor in attempt to get phony prescription not covered by doctor-patient privilege

People v Georgetti, 2007 NY Slip Op 04945 [available here]

During his trial on charges of second-degree criminal possession of a forged instrument, both the defendant's doctor and his nurse were allowed to testify about defendant's attempts to obtain false prescriptions. Such testimony is not covered by the doctor-patient privilege, says the Fourth Department, because the privilege "'does not extend to information obtained outside the realms of medical diagnosis and treatment.'" (Georgetti, 2007 NY Slip Op 04945 [citations omitted].

CA: existence of unsatisfied condition does not necessarily negate criminal conspiracy

People v Washington, 2007 NY Slip Op 04720 [available here]

While incarcerated, Mr. Washington entered into an agreement with a hitman (who was actually an undercover informer) to have one of his rivals killed. (Washington, 2007 NY Slip Op 04720.) Being somewhat short of funds due to his incarceration, Washington told the informer to hold off on executing the hit until Washington could get out of jail and raise the necessary cash. On appeal, Washington argued that the agreement to have the rival killed was contingent on an event that never happened (because Washington was arrested for conspiracy before he was released from jail), and the existence of an undischarged condition negated the conspiracy.

The Court of Appeals (in a unanimous decision by Judge Ciparick) rejected that argument. While acknowledging a split among the federal circuit courts on the correct analysis to apply--the First and Eighth Circuits "have adopted the approach that an agreement with a condition will be effective only if the defendant subjectively believes the condition is likely to be fulfilled," while the Fifth, Seventh and Eleventh Circuits "hold[...] that conditions to an agreement are largely irrelevant, unless the conditions are so unlikely to be met that the agreement is illusory"--the Court does not choose a side. (Id. at __.) Even under the First and Eighth Circuit's somewhat stricter analysis, Mr. Washington would have subjectively believed that he would eventually be released from jail and thereby satisfy the condition, and the deal was otherwise specific enough to satisfy the requirements of a criminal conspiracy. (Id. at __.)

CA: 7-month time frame for criminal act specified in accusatory instrument not specific enough to provide defendant with sufficient notice

People v Sedlock, 2007 NY Slip Op 04683 [available here]

The defendant, a Boy Scout master, was accused of forcibly touching one of his 17 year-old scouts once during a time period "from December 2002 through June 2003." (Sedlock, 2007 NY Slip Op 04683.) Defense counsel requested a bill of particulars to narrow that time frame down a bit; the People responded by reiterating that one act of forcible touching occurred "between December of 2002 and June 2003." (Id. at __.) The trial court denied defense counsel's motion to dismiss the accusatory instrument on the grounds that it "did not properly give him notice of the charge so that he could adequately prepare a defense." (Id. at __.) The Court of Appeals reversed in a unanimous decision by Judge Ciparick. From the decision:

[W]e conclude that the People failed to meet their duty to delineate a sufficiently narrow time frame for the alleged act. Notably, the complainant here was 16 or 17 years old at the time of the forcible touching, and, by all accounts, intelligent. Exact dates for incidents that occurred years before were provided, yet the People failed to specify a more precise time frame for the conduct at issue, or to demonstrate that they were unable to do so. Under these circumstances, seven months cannot be deemed reasonable when weighed against the imperative notice rights of the defendant. The People had ample opportunity to correct this deficiency in their response to the bill of particulars but failed to do so, and thus defendant's motion to dismiss the information should have been granted.

(Id. at __.)

This is the right call. Prosecutors are sometimes allowed to allege criminal conduct occurred over broad swaths of time when, by reason of the age of the victim or the passage of time or both, the exact date of the crime cannot be pinned down with any precision. But this should be the exception, used sparingly and only when absolutely necessary. An intelligent 17-year-old is able to give specific information that a 4 year old cannot, and it should be incumbent on the prosecutor to thoroughly investigate a 17-year-old's allegations and nail the date of the crime down with some specificity before prosecuting the case.

CA: defendant entitled to take plea back if postrelease supervision not part of plea colloquy

People v Louree, 2007 NY Slip Op 04679 [available here]

A defendant must be informed that his sentence will include a term of postrelease supervision before he pleads guilty, and a defendant who is not so informed is entitled to vacatur of his guilty plea. The defendant does not have to show that he would not have pleaded guilty if he knew about the postrelease supervision component of the sentence,and the issue does not have to be preserved for appellate review by a motion to withdraw the guilty plea. So says the Court of Appeals today, in a majority decision by Judge Read. (See Louree, 2007 NY Slip Op 04679.) Judge Pigott dissented, and would have required the defendant to object to the imposition of the postrelease supervision at sentencing to preserve the issue for review. (See id. at __ [Pigott, J., dissenting].)

AD2: Decisions for May 22, 2007

Lengthy prior criminal history, poor prison disciplinary record and subsequent murder conviction = no DLRA resentencing

People v Vega, 2007 NY Slip Op 04521 [available here]

Mr. Vega petitioned to be resentenced under the Drug Law Reform Act (DLRA). The lower court declined to resentence Mr. Vega, and the Second Department affirmed. "The defendant is a second felony offender with a prior criminal history dating back to 1988, including convictions of other controlled substance offenses, and he was subsequently convicted of murder in the second degree. Moreover, his prison disciplinary record was poor. Under the circumstances, substantial justice dictated that the motion be denied." (Vega, 2007 NY Slip Op 04521.)


No postrelease supervision? No problem.

People v Martinez, 2007 NY Slip Op 04512 [available here]

On his plea of guilty to Robbery in the First Degree, Mr. Martinez was sentenced as a second felony offender to an eight year determinate prison term. Although a term of postrelease supervision is a required part of the sentence for first-degree robbery, no mention of a postrelease supervision term was mentioned at sentencing, and postrelease supervision was not included in the court's order of commitment. (Martinez, 2007 NY Slip Op 04512.) On appeal, Mr. Martinez argued that his sentence was illegal, and that he was entitled to withdraw his plea. The Second Department disagreed, holding "the sentence actually imposed by the court never included, and does not now include, any period of postrelease supervision . . . [i]nasmuch as the defendant received precisely the sentence for which he bargained, he has failed to articulate any reason for vacating his judgment of conviction pursuant to CPL 440.10(1)(h), and we therefore affirm the denial of his motion." (Id. at )__.) As I have mentioned before here and here, the Fourth Department would have vacated the sentence as illegal, whether the defendant requested it or not.

Leaving the scene of an accident does not require proof of culpable mental state

People v Toussaint, 2007 NY Slip Op 04517 [available here]

On appeal, Mr. Toussaint argued that his conviction for leaving the scene of an accident should be reversed because the court failed "to instruct the jury that the defendant could only be found guilty if he had intentionally left the scene of the accident." (Toussaint, 2007 NY Slip Op 04517.) The Second Department affirmed. While the statute "requires proof that the defendant knew or had cause to know 'that a personal injury has been caused by his culpability or by accident,' the statute 'does not require the People to establish that the defendant acted with any culpable mental state as to [the element of] leaving the scene of the accident.'" (Id. at __ [citations omitted, brackets in original].)

AD1: Decisions for May 24, 2007

Criminally negligent assault conviction based on driving on sidewalk, driving the wrong way up a one-way street, hanging on to the victim from a moving car and steering with the same hand that is holding a loaded handgun is against the weight of the evidence

People v Conway, 2007 NY Slip Op 04400 [available here]

While on patrol in the Bronx, officer Mark Conway observed a young man walking down the street. For reasons not explained in the decision on appeal, Conway believed the young man was carrying a gun. (Conway, 2007 NY Slip Op 04400.) A pursuit followed, during which Conway drove up on a sidewalk, drove the wrong way down a one-way street, and grabbed the fleeing suspect from a moving car while driving and holding his service revolver with the same hand. Conway's gun went off during the chase, and the young suspect was severely injured. No gun was recovered from the suspect. (Id. at __.)

Conway was convicted after a bench trial of misdemeanor criminally negligent assault. The First Department reversed his conviction, finding the evidence legally insufficient to establish criminal negligence. The Court of Appeals reversed, finding a reasonable view of the evidence supported the conviction. The Court of Appeals remanded the case back down to the First Department to conduct a weight of the evidence review. (Id. at __.) The First Department again reversed the conviction, finding that the trial judge's verdict was against the weight of the evidence. From the majority decision:

Despite some current equivocation by the People, it was previously uncontradicted that the stop, itself, was proper, and it follows that Conway acted within the bounds of the law when he chased an escaping suspect. Moreover, the essential facts of that chase, as narrated by Conway, are not disputed (except by Dantae Johnson, the complainant) and are even supported by portions of the People's evidence. [...]

Finally, a criminal negligence analysis, in determining reasonableness and gross deviation, ultimately turns on the particular circumstances under which the accused acts. The particular facts of this case as previously noted, and which remain unchanged, warrant the finding that, weighing all the competing inferences, Conway did not act unreasonably under the circumstances.

(Id. at __.)

Justice Williams dissented in unusually strong terms, going so far as to state, "[t]his case presents a perfect example of why police misconduct is such a persistent, endemic problem in this city and country; it is condoned in high places." (Id. at __ [SMITH, J., dissenting].)

AD3: "Wildly shooting toward several people" = pre-Suarez depraved indifference murder

People v Carter, 2007 NY Slip Op 04372 [available here]

After having words with the victim in a bar, the defendant waited for the bar to close and, as the victim left the bar, "defendant pulled a gun from his waist and began shooting." (Carter, 2007 NY Slip Op 04372.) Four shots hit the victim, causing his death. Mr. Carter was charged with both intentional and depraved indifference murder; the jury acquitted on the intentional count, and instead convicted Mr. Carter of depraved indifference murder.

On appeal, Carter argued that his conviction was either not supported by legally sufficient evidence, or was against the weight of the evidence. The Third Department held the legal sufficiency argument was not preserved for review by a specific motion for a trial order of dismissal, and the Court refused to reach the issue in the interest of justice. (Id. at __.) The Court did reach the weight issue, but found "the evidence supports the juyr's conclusion that defendant . . . acted with depraved indifference murder." (Id. at __.) Two other people were close to the shooting victim when the shots were fired, eight shots were fired and only four hit the victim, and one or two of the shots the hit the victim did so "after ricocheting off of the ground or another surface." (Id. at __.) Those facts supported the jury's verdict; from the decision:

The jury could have concluded that defendant remained outside because he was waiting for his friend in the bar or hoped to get back inside to drink more, and that he had the gun in his waistband before he entered the bar or his friend handed it to him immediately prior to the shooting incident. The fact that most of his shots missed or were not direct hits could imply that his wild shooting was intended as a warning or show of bravado, not to inflict harm. Defendant's reckless shooting placed not only Young, but three other individuals in peril of being shot. Weighing the relative strength of conflicting inferences that may be drawn from the conflicting testimony, defendant's conduct could be considered wanton, deficient in moral sense and demonstrating an attitude of utter disregard for human life, as charged by Supreme Court, such that the jury's verdict was not against the weight of the evidence.

(Id. at __.)

Although not a great decision, Carter should have a limited impact. The Court's analysis is a weight of the evidence review based on the elements of depraved indifference murder as that crime was charged to the jury in Carter, i.e. the pre-Suarez understanding that treated the "depraved indifference" component of the crime as a set of objective facts and not as a culpable mental state. If the legal sufficiency argument had been preserved, the Court would have been bound to apply the post-Suarez standard and the result would probably have been different.

There were no other decisions of note from the Third Department's latest packet. The First Department released decisions on May 22 & 24, with only one noteworthy decision (People v Stapkowitz, 2007 NY Slip Op 04342 [available here]. New York Legal Update summarizes that case here.

AD2: Decisions for May 15, 2007

Post-release supervision not imposed at sentencing is not part of sentence

People v Howell, 2007 NY Slip Op 04318 [available here]

People v Royster, 2007 NY Slip Op 04325 [available here]

Perpetuating a split between the Appellate Division Departments, the Second Department refuses to vacate the defendant's guilty plea based on an illegal sentence. Although a period of postrelease supervision was mandatory given the crimes defendant pleaded guilty to, the lower court failed to include any period of postrelease supervision at sentencing. In the Fourth Department, this is grounds for reversal, whether the defendant raises the issue or not. (See People v Davis, 2007 NY Slip Op 00929.) In the Second Department, the defendant is not entitled to vacatur of his conviction. Here's the language from Howell:

Neither the transcript of the sentencing proceeding nor the Supreme Court's order of commitment contains any reference to the imposition of a period of post-release supervision. Therefore, the sentence actually imposed by the court never included, and does not now include, any period of post-release supervision.

Under these circumstances, the defendant received precisely the sentence for which he bargained, and thus he failed to articulate any reason for vacating his judgment of conviction, upon his plea of guilty, or modifying his sentence in any way.

(Howell, 2007 NY Slip Op 04318.)

It will be interesting to see if the Court of Appeals grants leave to resolve this split.



Evidence insufficient to establish defendant's signature on false affidavit

People v Feola, 2007 NY Slip Op 04310 [available here]

People v Hepp, 2007 NY Slip Op 04317 [available here]

The defendant in Feola was convicted of "making a punishable false statement," i.e. signing an affidavit or other such document that contains false statements. (Feola, 2007 NY Slip Op 04310.) At trial, the only evidence that defendant actually signed the affidavit at issue was the testimony of an Assistant District Attorney, who "sent the unsigned affidavit via facsimile to the police precinct to the attention of the codefendant . . . after a telephone conversation with the defendant . . . [a] signed affidavit purportedly bearing the defendant's signature was sent back to the ADA by facsimile under a cover sheet bearing the defendant's name." (Id. at __.) That was it. Given that the "People inexplicably failed to proffer any direct evidence that the affidavit bore the actual signature of the defendant", the Second Department held the defendant's conviction was not supported by legally sufficient evidence.



Defense counsel taking adverse position to client on 330.30 motion = ineffective assistance of counsel

People v Gruttadauria, 2007 NY Slip Op 04316 [available here]

After his conviction but before sentencing, the defendant "moved pro se to set aside the verdict pursuant to CPL 330.30, alleging . . . ineffective assistance of counsel." (Gruttadauria, 2007 NY Slip Op 04316.) Defense counsel "submitted an affidavit in opposition to the motion" to "explain[...] his performance on the record with references to matter dehors the record." (Id. at __.) While not expressing an opinion on the merits of the defendant's pro se 330.30, the Second Department held that the defendant was denied effective assistance of counsel on the 330.30 motion itself, and remanded for a 330.30 hearing with new counsel. "The defense counsel, by taking a position adverse to his client, deprived the defendant of effective assistance of counsel with respect to the motion to set aside the verdict pursuant to CPL 330.30." (Id. at __.)

AD1: Decisions for May 17, 2007

Prosecutor not required to disclose newly discovered evidence after guilty plea

People v Ortega, 2007 NY Slip Op 04220 [available here]

Mr. Ortega pleaded guilty to first-degree criminal possession of a controlled substance back in 1993, after a suppression hearing that challenged the arresting officers' assertions that the drugs he was alleged to have possessed were observed in plain view during a traffic stop. Sentence was not imposed on the guilty plea until 2002 because Mr. Ortega absconded. In 1994, "the officers who testified at the hearing were implicated in an investigation of corruption . . . [o]ne officer was convicted of perjury, and the other dismissed from the Police Department for making false statements." (Ortega, 2007 NY Slip Op 04220.)

Defense counsel made a 440.10 motion to vacate his conviction, arguing that the prosecutor should have informed Mr. Ortega of the corruption probe involving the officers in his case as Brady material and/or as "newly discovered evidence" under CPL 440.10. (Id. at __.) The First Department disagreed on both scores.

As to the Brady violation, the Court noted that the perjury and corruption allegations against the officers did not come to light until after Mr. Ortega took his guilty plea, and thus the "information regarding the misconduct of these officers . . . was not in the People's actual or constructive possession until after defendant's guilty plea (and after his originally scheduled sentence, which was postponed only because he absconded)." (Id. at __.) The Court noted that the prosecutor's Brady obligations might have survived the defendant's conviction if the disputed evidence "tend[ed] to exonerate the defendant" and if the defendant had "contested his guilt at a trial", but that no such obligation extends beyond conviction if the "case involves the prosecution's post-conviction acquisition of impeachment material, relating to a Fourth Amendment issue, where a defendant chose not to litigate his guilt and does not contest it on appeal." (Id. at __.)

This is a bit silly. After conviction but before the defendant was sentenced, the People became aware of evidence that, if introduced at the suppression hearing, may well have resulted in the suppression of the drugs Mr. Ortega was alleged to have possessed. But because the evidence at issue did not totally "exonerate" the defendant (it only gutted the credibility of the police officers upon whose words the entire suppression finding rested), and because Mr. Ortega did not take his case to trial, his guilty plea must stand. Really? Why not apply a standard more familiar to a traditional Brady analysis--if there is a reasonable possibility that the evidence at issue would have 1) effected the defendant's decision to plead guilty, or 2) resulted in a different outcome at the suppression hearing, then the People must disclose it. Why introduce elements in the context of a Brady violation after a guilty plea--i.e. a showing of actual innocence and a requirement that defendant protest his innocence at trial--that are not required to establish a Brady violation after trial?

The Court also rejected Ortega's "newly discovered evidence" argument, holding that CPL 440.10[g] (allowing the trial court to grant a new trial based on newly discovered evidence) "applies only to convictions after trial." (Id. at __.) And a writ of error coram nobis is not available, because such a writ only "survive[d] the enactment of the Criminal Procedure Law with respect to matters that statute does not address" and, according to the Court, "the power to set aside a judgment on the basis of newly discovered evidence has been codified." (Id. at __.) So the First Department, in the same paragraph, holds, 1) that section 440.10 of the CPL does not apply to situations where new evidence is discovered after a guilty plea and the defendant wants his plea back on that basis, and 2) the writ of error coram nobis is not available to Mr. Ortega (who wants to set aside his guilty plea based on newly discovered evidence) because section 440.10 of the CPL already addresses this issue. (Id. at __.) Heads I win, tails you lose.


Trial courts should err on side of granting a suppression hearing "despite a perceived pleading deficiency"

People v Rivera, 2007 NY Slip Op 04238 [available here]

In his motion to suppress drugs and money found after his arrest, the defendant essentially denied being involved in the drug sale and likewise denied acting suspiciously. The trial court refused to have a hearing, holding that defendant's general denial was not enough to create a factual dispute. The First Department reversed, noting that "defendant's denial that he was participating in a drug transaction, which alleged event was the only basis for the probable cause to arrest and search him and the car he was sitting in at the time, was clearly sufficient to warrant a hearing on his motion." (Rivera, 2007 NY Slip Op 04238.) The Court then took the unusual step of admonishing trial courts to err on the side of granting a suppression hearing. "Moreover, while technically not part of the test for determining the sufficiency of a defendant's factual allegations, given that CPL 710.60[3] merely permits, but does not mandate summary denial, the interest of judicial economy militates in favor of the court's conducting a hearing on the suppression motion in the exercise of its discretion despite a perceived pleading deficiency." (Id. at __.) A very useful decision.