AD2: Decisions for March 6 & 13, 2007

People v Lampon, 2007 NY Slip Op 02140 [available here]

The Second Department held the defendant's challenge to the sufficiency of the evidence to support his depraved indifference murder conviction was not properly preserved where trial defense counsel argued only that the count should be dismissed because "the defendant's conduct was not consistent with 'recklessness.'" (Lampon, 2007 NY Slip Op 02140.) "There was evidence of intoxication presented at trial which the jury could have found negated the defendant's intent to kill without negating the defendant's reckless state of mind." (Id. at __.) Trial defense counsel did not go on to argue that the defendant lacked the required "depraved indifference" mens rea, and the Second Department declined to reach the issue in the interest of justice. (Id. at __.)

People v Benson, 2007 NY Slip Op 01891 [available here]

People v Sebastian, 2007 NY Slip Op 01903 [available here]

The Second Department continues to give defendants specific performance of their plea terms; if no postrelease supervision is discussed at plea or sentencing, then the postrelease supervision is not part of the sentence and the defendant does not have to comply with it. (Benson, 2007 NY Slip Op 01891 ["Neither the sentencing minutes nor the court's order of commitment mentioned the imposition of any 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."].) The Fourth Department's decisions in this area are different; if postrelease supervision is mandatory, then failure to impose the postrelease supervision at sentencing renders the sentence illegal and the appellate court is bound to vacate the sentence and remand (even if none of the parties on appeal request such relief). (See, e.g., People v Davis, 2007 NY Slip Op 00929.)

People v John, 2007 NY Slip Op 01896 [available here]

The trial court should have reopened the suppression hearing where the officer testified at suppression that a skimask was found only after defendant was identified by an eyewitness, but at trial the witness testified that the officer showed her the skimask before she made the identification. (John, 2007 NY Slip Op 01896.) The fact that another judge presided over suppression did not make the suppression decision the "law of the case", and the hearing should have been reopened because the witness' trial testimony "directly implicated the hearing court's finding of probable cause, and raised more than a question of credibility." (Id. at __.)