AD4: Decisions for March 16, 2007

Sorry for the brief hiatus. Occasionally, life and work demands intrude on my blogging time. I am going to go out of chronological order and post on the new Fourth Department decisions, with the intent to go back and post on the other Departments' decisions when time permits.

People v Stroman, 2007 NY Slip Op 02388 [available here]

The Fourth Department granted defendant's writ of error coram nobis based on appellate counsel's failure to "raise an issue on direct appeal that would have resulted in reversal, specifically, in failing to argue ineffective assistance of counsel." (Stroman, 2007 NY Slip Op 02388.)

People v Loper, 2007 NY Slip Op 02168 [available here]

The majority (in a memorandum opinion) ordered the defendant's sentences for Burglary in the Third Degree (Penal Law 140.20) and Unauthorized Use of a Vehicle in the First Degree (Penal Law 165.08) to run concurrent, apparently because an element of the latter crime is that the vehicle be taken "with the intent to use the same in the course of or the commission of" a felony, and therefore the Burglary 3rd was a necessary element of the Unauthorized Use of a Vehicle 1st. (Loper, 2007 NY Slip Op 02168.) Justices Scudder and Green dissented, noting that the actual commission of the underlying crime (here a Burglary 3rd) is not required to establish Unauthorized Use of a Vehicle 1st, but rather the "individual's intent to use the vehicle in such manner is all that is required." (Id. at __.)

People v McCullough, 2007 NY Slip Op 02184 [available here]

The Fourth Department reversed defendant's conviction in the interest of justice where a police witness bolstered the lineup identifications of the only two eyewitnesses to the bank robbery and "[t]he sole contested issue at trial was the identification of the perpetrator, and the evidence of identification is not overwhelming." (McCullough, 2007 NY Slip Op 02184.) I was the attorney on appeal for Mr. McCullough, and I was surprised by this decision because the main issue on appeal was ineffective assistance of counsel. Defense counsel fell asleep at key points of the trial, failed to request a Wade hearing to challenge the eyewitness identification evidence, and elicited damaging testimony from the People's witnesses during cross-examination. The unpreserved bolstering issue was a bit of an afterthought, both in the brief and at oral argument. I guess it never hurts to give the Court another hook to hang its hat on just in case there is reluctance to reverse on your main point.

People v May, 2007 NY Slip Op 02223 [available here]

The trial court erred in failing to charge the jury on the affirmative defense of entrapment. Defendant was a prisoner charged with Criminal Possession of a Weapon in the Third Degree. The weapons at issue were procured by the defendant after he agreed to round up illegal weapons for a correction officer in exchange for television privileges. Based on that evidence, entrapment should have been charged because the jury could have found that defendant was encouraged to possess the weapons and would not have possessed the weapons if not encouraged to do so by the correction officer. (May, 2007 NY Slip Op 02223.)

People v Austin, 2007 NY Slip Op 02224 [available here]

Police had reasonable suspicion justifying the pursuit of defendant where the defendant was one of many young men hanging out on "the porch of a house known to be occupied by elderly people", a "high traffic" of people came and went from the porch, one man in the group admitted to possessing marijuana upon questioning by the police, a bag of marijuana was "recovered", and defendant "fled the scene when the officer asked to speak with him [...]." (Austin, 2007 NY Slip Op 02224 at __.)

People v Manor, 2007 NY Slip Op 02239 [available here]

The Court held defendant's sentence for Criminal Possession of a Weapon in the Second Degree must run concurrent with the sentence on the murder conviction because there was no "evidence that defendant intended to use his weapon unlawfully against another apart from its use in the shooting [...]." (Manor, 2007 NY Slip Op 02239 at __.)

People v Chatman, 2007 NY Slip Op 02273 [available here]

The Fourth Deparmtent held the trial court should have suppressed defendant's statement. Although the facts are not recited in the court's opinion, I was Mr. Chatman's attorney on appeal and can fill in the blanks. The police tried to pull Mr. Chatman over for a seatbelt violation. A low-speed chase ensued. Mr. Chatman ditched the car and took off on foot, and was eventually brought to the ground and handcuffed by the police. The chasing officer immediately asked Mr. Chatman why he was running. I argued that Mr. Chatman was in custody (because he would not feel free to leave after being chased down, tackled and handcuffed), and the officer's question (essentially "why did you run?") was interrogation because it was an invitation to explain whatever criminal conduct prompted the flight and was thus likely to elicit an incriminating response. The Fourth Department agreed "that the court should have suppressed the statement", but found the error harmless. The Court also agreed that the trial court erred in refusing to charge the jury "with respect to the voluntariness of the statement", but found that error harmless, too.


People v Black, 2007 NY Slip Op 02274 [available here]

The Fourth Department reversed defendant's rape conviction and dismissed that count of the indictment where the indictment charged defendant with one act of rape on a certain date and the evidence at trial established two separate completed rapes happened that day. (Black, 2007 NY Slip Op 02274.) An interesting note here: the Fourth Department found the issue unpreserved, but reached it in the issue of justice. This is a subtle but important shift in the preservation requirements for an issue like this. Traditionally, the Fourth Department has not imposed a preservation requirement for this type of error. (See People v McNab, 167 AD2d 858.)

People v Lemon, 2007 NY Slip Op 02296 [available here]

The defendant's sentences for Robbery 1st must run concurrent to the murder sentences where "the act constituting each count of intentional murder, i.e. stabbing the victims, is the same act that caused the serious physical injury for purposes of each robbery conviction." (Lemon, 2007 NY Slip Op 02296.)

People v Lunetta, 2007 NY Slip Op 02304 [available here]

The Fourth Department found the evidence in support of defendant's conviction for Assault 2nd--that the victim had a bump on her head, a bruise on her arm and two swollen fingers--was legally insufficient. The evidence was "legally insufficient to establish that the victim suffered either 'impairment of [a] physical condition' or 'substantial pain.'" (Lunetta, 2007 NY Slip Op 02296.)

People v O'Neal, 2007 NY Slip Op 02305 [available here]

I have a soft spot for this case. I was the attorney for Mr. O'Neal on appeal, and I argued that the evidence was not sufficient to support my client's conviction for possessing an imitation controlled substance (i.e. fake crack) because, while the officer field tested the crack-like substance found in Mr. O'Neal's pocket and the results were negative, the negative results were not confirmed by a formal laboratory analysis. There is good case law that holds a positive field test, standing alone, is not sufficient to establish that drugs are real. My argument was that the same is true in reverse, i.e. a negative field test could not be enough to establish that my client had fake crack and not the real thing.

I think the Court might have agreed with me, except for the fact that a drug addict had sampled my client's wares immediately prior to my client's arrest, and in the addict's opinion the substance tasted like wax and was not real crack. The Fourth Department held that the combination of the addict's testimony and the negative field tests was enough to establish that the substance was fake crack. (O'Neal, 2007 NY Slip Op 02305.)