Saturday, February 03, 2007

AD4: Decision roundup (February 2, 2007)

The Fourth Department handed down decisions this past Friday, February 2, 2007. I've decided to change up my posting schedule; instead of stringing things out, I am going to start posting the highlights of the decision packet, all in one big blob. The plan is to start highlighting significant decisions from the other Departments of the Appellate Division as those decisions are handed down, as well. Hopefully, this will make this blog more timely and useful. So here are the decisions from the Fourth Department's February 2, 2007 packet, in no particular order.

Scuffle over gun resulting in fatal shooting is not depraved indifference murder

People v De Capua, 2007 NY Slip Op 00938 [available here]

While armed with a gun, the defendant started a fight in a bar; "a struggle over the gun ensued[,] [t]he two fell to the ground and the gun went off, resulting in the fatal gunshot wound to the victim." (De Capua, 2007 NY Slip Op 00938.) On those facts, the jury convicted the defendant of depraved indifference murder. The Fourth Department vacated the depraved indifference count and reduced defendant's conviction to manslaughter in the second degree. "We agree with defendant that 'there exists no valid line of reasoning that could support [the] jury's conclusion that defendant possessed the mental culpability required for depraved indifference murder.'" (Id. at __.) The Court reached this unpreserved issue in the interest of justice. (Id. at __.)

"I think I need a lawyer" is not unequivocal invocation of right to counsel

People v Porter, 2007 NY Slip Op 00918 [available here]

During his interview on suspicion of murder, defendant told his interrogators "I think I need an attorney." (Porter, 2007 NY Slip Op 00918.) The investigator stopped questioning the defendant long enough to confer with an Assistant District Attorney. The prosecutor told the investigator that the defendant did not unequivocally invoke his right to counsel; the investigator went back into the interview room, told the defendant that the the officer "was advised that defendant had not unequivocally invoked his right to counsel", and asked the defendant if he still wanted to talk to the police. The defendant agreed to keep talking, and ultimately confessed. (Id. at __.)

While the Court had little trouble finding that the defendant was in custody during the interview ("he was removed from the house where he was staying . . . escorted by eight police officers and was handcuffed in the house during the ride to the police station"), the majority went on to hold that the defendant's statement--"I think I need an attorney"--was not an unequivocal invocation of his right to counsel. (Id.)

Justice Gorski dissented, writing:

I conclude under the totality of the circumstances in this case 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. Defendant's consent to continue with the interrogation without counsel was obtained after an interrogating officer gave defendant an apparent legal opinion garnered from an assistant district attorney that defendant had not uttered the precise words to constitute unequivocal invocation of the right to counsel. In my view, the court erred in refusing to suppress the statement thereafter made by defendant to the police inasmuch as that statement was obtained in violation of his right to counsel and defendant could not have validly waived any rights in the absence of counsel.

(Id. at __ [GORSKI, J., dissenting].)

It is hard to disagree with Justice Gorski's dissent--the defendant was a lay person untrained in legal niceties. He requested a lawyer the way most non-lawyers would--"I think I need a lawyer". Rather than scrupulously honoring this request, the police consulted an on-site prosecutor in search of a loophole. Armed with the ADA's assurances that the defendant did not really ask for a lawyer, the investigator conveyed the prosecutor's opinion to the defendant. It is not hard to understand why the defendant agreed to keep talking--he tried to get an attorney, and was told he was not entitled to one. You expect this kind of thing from the police sometimes; but the prosecutor should have erred on the side of respecting the defendant's admittedly less-than-perfect assertion of his right to counsel. That the majority let the prosecutor and police off the hook and tacitly approved their sharp tactics is disappointing.

No reasonable expectation of privacy in public storage area

People v Pucci, 2007 NY Slip Op 00785 [available here]

Defendant argued on appeal that the trial court erred in denying his suppression motion without a hearing, or in the alternative that trial counsel was ineffective for failing to allege sufficient facts to raise an issue of fact requiring a hearing. The Fourth Department rejected both arguments; the motion papers failed to establish defendant's standing to contest the search, and the additional information defense counsel could have included in the motion papers to establish standing actually "confirmed that defendant lacked standing because he had no legitimate expectation of privacy in the storage area where the physical evidence was discovered by the police." (Pucci, 2007 NY Slip Op 00785.)

Evidence of subsequent drug purchase improper in robbery prosecution

People v Edsall, 2007 NY Slip Op 00832 [available here]

At his trial for robbery and evidence tampering, the People introduced evidence that defendant "attempted to purchase drugs approximately four months after the robbery." (Edsall, 2007 NY Slip Op 00832.) The Fourth Department held this was error because "there was no evidence that defendant's drug use on that date was connected to the acts alleged in the indictment." (Id.) No reversal, though; the Court found the error harmless.

Defendant not in custody when request for counsel made

People v Casey, 2007 NY Slip Op 00847 [available here]

During her interrogation in connection with arson and murder charges, defendant told police "I think I want to talk to a lawyer." (Casey, 2007 NY Slip Op 00847.) The Court held that, regardless of whether this was an unequivocal invocation of the right to counsel, defendant was not in custody when the statement was made--"Defendant complied with the request of the police to come to the police station, and she did so of her own accord and at a time of her own choosing. Furthermore, defendant was advised by the police at the outset that she was free to discontinue the interview and leave the police station at any time." (Id.)

Apparently, the defendant did subsequently terminate the interview by unequivocally requesting a lawyer. At trial, one of the police investigators testified that the interview ended when defendant asked for an attorney. While acknowledging that this testimony was improper, trial defense counsel did not object to the questioning (or the People's reference to the cop's testimony on summation) and the Court declined to reach the issue in the interest of justice. The Court further held that any error was harmless. (Id.) Defense counsel's failure to object to the improper testimony did not render his assistance ineffective. (Id.)

Mere presence at juvenile detention facility insufficient to establish fact of prior conviction for SORA classification purposes

People v Ross, 2007 NY Slip Op 00848 [available here]

Defendant was assessed five points under the "prior criminal history" category at his SORA reclassification hearing. The only evidence of this history was defendant's placement at a juvenile detention facility at the time the underlying sex crime was committed. The Fourth Department agreed this evidence was insufficient to establish a criminal conviction. "The People failed to specify the offense of which defendant was allegedly convicted or adjudicated, and, in fact, failed to submit any evidence in support of such a conviction or adjudication." (Ross, 2007 NY Slip Op 00848.) Full disclosure: I was Mr. Ross' attorney at the SORA reclassification hearing.

Fingerprint affidavits admissible at persistent sentencing hearing?

People v McCallie, 2007 NY Slip Op 00869 [available here]

In a strange decision, the Court rejected "defendant's contention that the court violated Crawford v Washington (541 US 36) when it admitted into evidence prior certificates of conviction and a certified fingerprint analysis during the CPL 400.16 hearing; those materials were admissible pursuant to CPL 60.60." (McCallie, 2007 NY Slip Op 00869.) The Fourth Department cites to People v Williams (30 AD3d 980) in support of its decision. However, the Fourth Department held in Williams that the fingerprint affidavit did violate Crawford and was not admissible at a persistent sentencing hearing. The analysis is pretty straightforward--section 400.16 provides that prior convictions must be proven by the rules of evidence applicable at trial, and Crawford applies at trial to exclude testimonial statements. To the extent CPL 60.60 provides otherwise and allows the admission of testimonial hearsay as long as it is certified, it runs afoul of the plain mandate of section 400.16 (and by statutory incorporation, Crawford). (See Williams, 30 AD3d at __.) I previously posted on Williams here.

What's even stranger is that the Fourth Department has previously cited to Williams to exclude fingerprint affidavits from recidivist sentencing hearings. (See People v Wright, 2006 NY Slip Op 08459 [subject of a previous post here.) I just do no see the basis for excluding fingerprint affidavits as testimonial hearsay in Williams and Wright, and allowing the fingerprint affidavit in McCallie. I was the appellate attorney in Williams, and the CPL 60.60 argument seemingly relied on in McCallie was raised in the People's brief in Williams. Why the Court would deviate from Williams, while citing to Williams for support, is somewhat baffling. I will pull the briefs in Mc Callie next week and try to figure out the Court's reasoning.

Despite no objection to the sentence below or on appeal, defendant's favorable concurrent sentence vacated

People v Davis, 2007 NY Slip Op 00929 [available here]

Proving once again that a criminal appeal is not a risk-free enterprise, the Fourth Department vacated defendant's sentence and remanded for resentencing where the trial court ordered defendant's five year determinate sentence to run concurrent to a 1 - 3 year sentence on a prior felony without setting out his reasons on the record. (Davis, 2007 NY Slip Op 00929.) The Fourth Department took this defendant-adverse action even thought the issue was not raised before the sentencing court and was not raised by any party on appeal. According to the Court, the sentencing court's failure to make a record of its reasons for running the sentence concurrent rendered the sentence "illegal", and illegal sentences cannot stand. But the Court acknowledged in the decision itself that the sentences could properly run concurrent if certain mitigating factors exist, and the problem below was that the sentencing court did not put those mitigating circumstances on the record. But if the People had objected to the imposition of the sentence on that ground, could not the Court have made the required record? And isn't the whole point of preservation to give the lower court a chance to get it right before an appellate court steps in and reverses? This was a pretty harsh move by the Fourth Department, and I'm not sure the Court's reasoning survives scrutiny.