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.

AD3: Decisions for May 17, 2007

"The Third Department will never understand our love"

People v Sylvester, 2007 NY Slip Op 04189 [available here]

Ms. Sylvester "met and married" her husband while he was "incarcerated for a murder conviction [...]." (Sylvester, 2007 NY Slip Op 04189.) Perhaps frustrated by the excessive per-minute charges for prison telephone calls in New York, Ms. Sylvester mailed her husband "three cell phones, along with chargers and headsets, in a typewriter [...]." (Id. at __.) Upon being caught and arrested, Ms. Sylvester pleaded guilty to one count of attempted promoting prison contraband in the first degree, and was sentenced to probation. "One term of probation prohibited her from entering any state correctional facility." (Id. at __.)

On appeal, Ms. Slyvester argued her plea colloquy was not sufficient because she was charged "with unlawfully and knowingly introducing dangerous contraband into a detention facility," and she told the court during her plea, "'I didn't know it was dangerous contraband.'" (Id. at __.) Not enough to invalidate the plea, says the Third Department; the "knowing" element required that she knew she was sending cell phones into prison, and whether or not she realized that cell phones were "dangerous" for purposes of the statute was irrelevant. (Id. at __.)

Ms. Sylvester also objected to the condition of probation that prohibited her from entering any state prison (and thus preventing her from seeing her husband). The Court upheld the provision, and struck a paternal tone; while recognizing that the condition "will preclude her from visitation with her husband," the Court nevertheless held the provision was valid because the "defendant met and married him while he was incarcerated for a murder conviction and she had no involvement with the criminal justice system prior to his manipulation and negative influence." (Id. at __.)


Leaving store with stolen merchandise through "employees only" area sufficient for burglary conviction

People v Athanasatos, 2007 NY Slip Op 04190 [available here]

Mr. Athanasatos waited in the car while his buddy went into a Staples, filled a 41-quart trash can with inkjet cartridges, and left the store via an "employees only" area without paying for the merchandise. (Athanasatos, 2007 NY Slip Op 04190.) Both men were convicted of third-degree burglary. On appeal, Mr. Athanasatos argued that the burglary conviction was not supported by legally sufficient evidence, because the larceny was complete before his friend entered the employees only area of the store, and thus he could not have entered the restricted area with the intent to commit a crime. The Third Department disagreed, noting

that there is no indication that Dellisanti concealed, attempted to secret the stolen property or moved the property towards an exit while he was in the public area of the Staples store; rather, defendant asserts that the evidence showed that Dellisanti carried the items openly i.e., "in a manner . . . [that was] in accord with that of a prospective purchaser" until he entered the restricted area of the store. Under these circumstances, Dellisanti's possession was not inconsistent with the continued rights of the owner until he took the property from the general shopping area into the restricted area. Accordingly, in our view, there was a legally sufficient basis from which the jury could conclude that Dellisanti unlawfully entered the restricted area of the store with the contemporaneous intent to commit a larceny.

The Court also upheld the trial court's Molineux ruling that allowed questioning about an identical crime committed by the same two men a few days earlier at a different Staples store. The evidence was "properly admitted . . . as proof of a preconcerted common scheme or plan," and any error was harmless. (Id. at __.)


Stand by your man . . . or not

People v Lownes, 2007 NY Slip Op 04193 [available here]

In a textbook display of passive-aggression, Mr. Lownes' girlfriend called his parole officer and told him that "defendant would be traveling from his residence to another location in the City of Albany with a large amount of crack cocaine." (Lownes, 2007 NY Slip Op 04193.) Real nice. After a short surveillance, the police pulled over Mr. Lownes' vehicle, but, alas, no drugs were found. (Id. at __.) But since he was on parole, Mr. Lownes was detained for further questioning anyway.

Meanwhile, back at the apartment Mr. Lownes shared with his girlfriend, the girlfriend was signing a written consent giving police permission to search the apartment. This time, the police found "22 grams of crack and a digital scale [...]." (Id. at __.) The decision does not explain exactly how Mr. Lownes ticked off his girlfriend, but I'm guessing it was bad.

The Third Department upheld the trial court's refusal to suppress the crack and the scale. The defendant's detention "was rationally and reasonably related to the performance of the parole officer's duties", and "inasmuch as defendant's girlfriend consented in writing to the search of their apartment, the search was permissible." (Id. at __.) The lesson: treat your woman right, especially if she knows where you keep your drugs.

AD1: Decisions for May 15, 2007

Don't mess with a NYC cabbie

People v Ortiz, 2007 NY Slip Op 04183 [available here]

Mr. Ortiz stole a cab, and drove off with the cabbie still "hanging on to its outside." (Ortiz, 2007 NY Slip Op 04183.) "Defendant drove the cab into a bus shelter, a fence and a tree, and the evidence demonstrates that he did so in an attempt to dislodge the victim from the cab." (Id. at __.) Not that I know from experience, but I think a Rochester cabbie would have let go of the cab after being driven into one large inanimate object. Anyway, the First Department held this evidence was legally sufficient to establish that Mr. Ortiz intended to cause serious physical injury to the cabbie. (Id. at __.)

The Court did reduce Mr. Ortiz's conviction for first-degree perjury to third-degree perjury. While Mr. Ortiz lied to the grand jury about his name and address, he did not deny "his identity as the person who was arrested", and thus the information he lied about was "not material to the grand jury's investigation" and thus that element of first-degree perjury was lacking. (Id. at __.)


Trial court's denial of Rockefeller drug resentencing for kingpin within bounds of discretion

People v Salcedo, 2007 NY Slip Op 04170 [available here]

The Drug Law Reform Act allows persons convicted of certain drug offenses to petition for resentencing, and the "court should grant a resentencing application 'unless substantial justice dictates that the application be denied.'" (Salcedo, 2007 NY Slip Op 04170.) The lower court refused to grant Mr. Salcedo's resentencing petition, and the First Department affirmed. "Defendant, who was convicted of three counts of first-degree drug possession, was the head of a multi-million dollar international drug organization, and his evidence of rehabilitation while incarcerated was insignificant in light of the magnitude of his crime." (Id. at __.)

AD3: Decisions for May 10, 2007

Failure to turn over evidence of cooperation agreement and an informant's partial recantation of trial testimony does not require a new trial

People v Tucker, 2007 NY Slip Op 04000 [available here]

Mr. Tucker was convicted of murder in 1983 based in part on an informant's testimony. At trial, the informant denied he was testifying pursuant to a cooperation agreement with the prosecutor. In 2005, Mr. Tucker asked the trial court for a new trial, on the basis of newly discovered evidence and certain Rosario, Brady and Giglio violations that came to light only after trial.

Defendant's "newly discovered evidence" argument was based on a written statement obtained from the informant indicating that he had lied at trial and that he did, in fact, testify with the understanding that the prosecutor would offer him a reduced sentence on a pending charge. (Tucker, 2007 NY Slip Op 04000.) The Third Department agreed with the trial court that a new trial was not required based on this evidence alone, primarily because whatever promise was made to the informant was not kept by the prosecutor. "Although this record contains some evidence suggesting that a promise of no jail time was made for a then-pending burglary charge if he testified against defendant, [the informant] was sentenced to one year in jail well in advance of defendant's trial and made no mention of this guaranty during his testimony." (Id. at __.) In any event, any error was harmless given the other evidence of defendant's guilt. (Id. at __.)

The Rosario, Brady and Giglio violations were related, and all concerned documents tending to demonstrate the existence of a cooperation agreement. The most relevant was a letter the informant wrote to a judge, in which he "claim[ed] that, despite promised leniency, he was sentenced to a year in jail." (Id. at __.) Once again, no harm, no foul, says the Third Department. Evidence that a cooperation agreement existed could not have changed the verdict because, according to the Court, "the record demonstrates both that [the informant] did not receive the benefit of the cooperation agreement in exchange for his testimony and his trial attorney had been informed by the prosecution of the possible existence of cooperation agreements." (Id. at __.)

To the extent the facts below demonstrate that the cooperation agreement was breached by the People before Mr. Tucker's trial, and the informant understood that the People could not deliver on their "no jail time" promise, I supposed I can understand the Third Department's decision here. But it seems like the informant's letter would at least suggest that, whatever the actual reality of the situation, the informant thought the agreement was still in place at the time of trial testimony, and that he was upset when, in his view, the People did not hold up their end of the bargain by reducing his sentence. The fact that the informant was sentenced prior to giving his testimony at Tucker's trial and therefore the People would not be able to give the informant what he was promised for his testimony--i.e. no jail time--is not really dispositive. If the informant thought that the prosecutor was still going to somehow make good on the "no jail time" promise, then the cooperation agreement would still undermine his credibility as a witness, and it would be difficult to dismiss the failure to turn over evidence of the agreement as harmless error.


Security officers and sign-in sheet at building entrance, marked office door sufficient to establish area of burglary was not open to the public

People v Carter, 2007 NY Slip Op 03999 [available here]

Mr. Carter was caught going through an office worker's desk and bag; he fled, was caught, and charged with burglary. (Carter, 2007 NY Slip Op 03999.) On appeal, Carter argued that the office building was open to the public and lacked "conspicuous markers which indicate the private areas", and therefore he could not have entered or remained unlawfully (as required for a burglary conviction). (Id. at __.) Not so much, says the Third Department; the building had security officers and a sign-in sheet in the lobby, and the office where the burglary happened was clearly marked as an "CSEA Office." (Id. at __.) "This evidence, viewed in the light most favorable to the People, establishes that defendant entered and remained unlawfully in that part of the premises not open to the public." (Id. at __.)

AD2: Decisions for May 10, 2007

Exigency must justify "grab area" search even if incident to arrest

People v Hernandez, 2007 NY Slip Op 04143 [available here]

When he was arrested on suspicion of robbery, Mr. Hernandez was handcuffed and sitting in a chair. Mr. Hernandez's knapsack was on a table in front of him. The arresting officer searched the knapsack and found certain proceeds of the robbery. (Hernandez, 2007 NY Slip Op 04143.) The trial court refused to suppress, holding the search of the knapsack was incident to a lawful arrest and therefore the People did not need to prove exigence circumstances justified the search. The Second Department reversed, noting that "the Court of Appeals has explicitly stated that exigent circumstances are, indeed, a prerequisite to a search incident to arrest of a defendant's effects in the defendant's immediate control or 'grabbable area' [...]" (Id. at __.) Absent proof that the knapsack search was necessary to prevent the destruction of evidence or to protect the police and public, the "People failed in their burden . . . of establishing the reasonableness of the police conduct." (Id. at __.)


Trial court's refusal to allow evidence of complainant's HIV status is harmless error

People v Taylor, 2007 NY Slip Op 04149 [available here]

Police officers conducting an unrelated investigation heard a woman "crying, calling for help, and saying 'stop'" from an apartment. Upon entry, the officers

saw the victim hog-tied with an electrical cord and a shoelace, and the codefendant over her with a pillow in his hands. The defendant was by the door with money in his left hand. When he saw the police, he said, "oh, shit," and ducked behind the door. After a struggle, the defendant was arrested and eight dollar bills were recovered from under a chair behind the door. The officers testified that the victim appeared very scared, and was crying and asking for help.

(Taylor, 2007 NY Slip Op 04149.)

I think "oh shit" about covers it. The woman testified at trial, and claimed Mr. Taylor and another man entered her room while she was sleeping, "tied her up, placed a pillow over her head, and demanded money." (Id. at __.) Mr. Taylor and his co-defendant both testified and told a different story; both admitted that they tied up the woman, but they claimed it was for the purpose of "consensual bondage-style sexual intercourse [..]." (Id. at __.) According to the defendants' version, the woman started "screaming and crying and everything" because Mr. Taylor told his co-defendant that the victim was HIV positive. (Id. at __.)

The trial court refused to allow "the testimony concerning the victim's HIV status," instead limiting defense counsel to specifying the revelation of the victim's HIV status as a generic breach of confidence. Id. at __.) On appeal, Mr. Taylor argued the trial court's ruling deprived him of his right to present a defense because evidence of the victim's HIV status "was necessary to explain the victim's extreme emotion state when the police arrived, and to establish her bias, hostility, and motive to fabricate criminal charges out of what was in fact a consensual sexual encounter." (Id.)

While recognizing that the evidence of the HIV status would not be collateral because it "is directly probative on this issue of credibility," the Second Department declined to reverse. According to the Court, the victim's HIV status was properly excluded under New York's "rape shield" law, and even if the application of that statute served to violate Mr. Taylor's right to present a defense, any error was harmless. The "defendant was not precluded from presenting his defense to the jury that the victim's highly emotional state when the police entered was the product of her anger and outrage and the defendant's betrayal of a confidence . . . he was only precluded from presenting direct evidence as the exact nature of the confidence." (Taylor, 2007 NY Slip Op 04149.) Given the other evidence of defendant's guilt, the Court found "no reasonable possibility that the striking of testimony concerning the victim's HIV status contributed to the conviction." (Id. at __.)

I'm sure there is case law on this, but is a victim's HIV status properly covered by the rape shield law? Isn't it just as likely that the victim got HIV from a non-sexual source, i.e. a dirty needle, a blood transfusion, etc.? The fact that a person has HIV does not necessarily speak to that person's sexual history. If that direct link cannot be conclusively made, it seems the rape shield law should not come in to play.

Automobile drug possession presumption does not apply to marijuana

People v Gabbidon, 2007 NY Slip Op 04141 [available here]

Defendant was indicted for Criminal Possesion of Marijuana in the Fourth Degree. At the grand jury, the prosecutor "charged the grand jury that the statutory presumption of knowing possession of a controlled substance in an automobile, as set forth in Penal Law 220.25[1], was applicable to possession of marihuana." (Gabbidon, 2007 NY Slip Op 04141.) The trial court dismissed the indictment, and the Second Department affirmed. The presumption charged by the prosecutor to the grand jury "applies only to the presence of a controlled substance in an automobile", and the Penal Law "specifically excludes marihuana from the definition of controlled substance." (Id. at __.) Since the grand jury may well have relied on the presumption in charging Mr. Gabbidon with marijuana possession, the trial court "correctly dismissed the indictment." (Id. at __.)

AD1: Decisions for May 10, 2007

Postrelease supervision period reduced because sentencing judge promised the minimum but gave the max

People v Marrero, 2007 NY Slip Op 04038 [available here]

Defendant pleaded guilty to Criminal Possession of a Controlled Substance in the Fourth Degree. At sentencing, the court said it was imposing "the minimum period of post-release supervision permitted by law," which would be 1 1/2 years. (Marrero, 2007 NY Slip Op 04038.) The period actually imposed was two years. (Id. at __.) The People on appeal conceded that the period of postrelease supervision should be reduced to 1 1/2 years as per the sentencing judge's statement promising the minimum term. (Id.) The First Department accepted the People's concession and lopped off six months of the postrelease supervision. (Id.)

I always wanted to be a footnote.

I'm not sure what this says about the standards at the Harvard Law Review, but this blog was cited (with approval, I think) in the latest issue of that esteemed journal. (See 120 Harvard L. Rev. 1707, 1710 fn 30 [April 2007], available here.) The article summarizes the Second Circuit's recent decision in US v Feliz (467 F3d 227 [2d Cir. 2006]), and references my post discussing whether autopsy reports qualify as "testimonial" under Crawford v Washington (541 US 36). It is nice to know that, long after this blog has evaporated into the digital ether, some trace of the endeavor will be left, collecting dust on a law library shelf.

AD1: Decisions for May 8, 2007

Lots of small plastic bags in plain view = probable cause to search vehicle

People v Jackson, 2007 NY Slip Op 03964 [available here]

The police pulled over Mr. Jackson's car, and "observed in plain view a large quantity of small plastic bags [...]." (Jackson, 2007 NY Slip Op 03964.) Based on that information alone, the First Department held there was probable cause to search the car. The officer opined that the bags were "narcotics paraphernalia" based on "his experience and training" (of course), and that was enough to establish "probable cause to believe that the vehicle contain narcotics, thereby justifying a search under the automobile exception to the warrant requirement that resulted in the recovery of a handgun." (Id. at __.) Notice how the search turned up no narcotics.

Also note this is the same Court that just last week upheld a trial court's curtailment of a defense attorney's cross-examination of a narcotics officer concerning the relevance of certain evidence in a drug case because the officer's "subjective opinion" as to the nature of the drug evidence was "not relevant", and the trial court was correct when it "directed counsel to only ask questions that would elicit the facts of the case." (People v Cestalano, 2007 NY Slip Op 03782.) Yet in Jackson, the road patrol's officer opinion as to the significance of the little baggies was not only relevant, but alone sufficient to establish probable cause to search the car.

The lesson, as always: the First Department hates me.


Defendant not deprived of right to appear before grand jury where failure to appear was attributable to defense counsel's shenanigans

People v Watkins, 2007 NY Slip Op 03978 [available here]

After notifying the prosecutor that his client wished to testify before the grand jury, defense counsel essentially went into hiding, avoiding the prosecutor and refusing to confirm that the defendant would be appearing before the grand jury. Defendant claimed on appeal that he had been deprived of his right to testify before the grand jury. Nice try, says the First Department; the People made "considerable and repeated attempts to contact defense counsel" and postponed "the grand jury presentation on two occasions," and that was enough to "provide defendant with a reasonable and meaningful opportunity to testify before the grand jury." (Id. at __.) The Court condemned defense counsel's "deliberately dilatory and evasive conduct", calling it "nothing more than a blatant attempt to use the People's obligations under CPL 190.50 as an opportunity for gamesmanship, conduct of which we strongly disapprove." (Id. at __.) But, defense counsel was not ineffective. (Id. at __.)


Defense attorney's testimony contradicting defendant's alibi A-OK

People v McGraw, 2007 NY Slip Op 03988 [available here]

Before the defendant's case was presented to the grand jury, defense counsel made statements to the prosecutor ("with defendant's consent", according to the opinion) about the defendant's whereabouts at the time of the crime. (McGraw, 2007 NY Slip Op 03988.) The defendant changed his story at trial, providing a different alibi than the one first given by the defense attorney. The People called the defense attorney as a rebuttal witness to testify that he had previously given the prosecutor a different alibi than the one posited by the defendant at trial. The trial court allowed the testimony, over defendant's objection. (Id.)

Perfectly kosher, says the First Department. The original attorney was the defendant's agent, and therefore the statement could come in "as an admission against the party." (Id. at __.) While recognizing that the People cannot use a withdrawn alibi notice to impeach a defendant, the Court refused to characterize the original attorney's statement to the prosecutor (putting the People on notice that the defendant had an alibi) as an official alibi notice. "[T]here never was an alibi notice relating to the first alibi; instead, the first alibi was volunteered in an effort to forestall indictment." (Id. at __.) According to the Court, Defense counsel's statement was not given "as a form of disclosure mandated by CPL 250.20", and therefore "there was nothing to trigger the special protections against impeachment that apply when a defendant withdraws a mandated alibi notice." (Id.) A distinction without a meaningful difference, perhaps, but apparently enough for the First Department.

CA: Decisions for May 8, 2007

Sentences for two counts of "multiple" Murder in the First Degree must run concurrent

People v Rosas, 2007 NY Slip Op 03957 [available here]

Back in 1997, Mr. Rosas killed his ex-girlfriend and her husband. He was convicted of two counts of "multiple" Murder in the First Degree, under the theory that he intentionally killed both his ex-girlfriend and her husband, and that in doing so he intended to cause the death of his ex-girlfriend and intended to cause either death or serious physical injury to her husband (and vice versa for the second first-degree murder count). The trial court sentenced Mr. Rosas to consecutive terms of life without parole; the Appellate Division modified the sentences to run concurrent.

The Court of Appeals (in a majority decision written by Judge Ciparick) agreed with the Appellate Division and held that the sentences must run concurrent under Penal Law section 70.25 because the same act--the intentional murder of both victims--underpinned both counts of Murder in the First Degree. (Rosas, 2007 NY Slip Op 03957 at __.) Although each victim was killed by a separate gunshot, the actus reus contemplates the completed crime, and the crime of Murder in the First Degree was not complete until both victims were intentionally killed. "The two separate shots that caused the deaths of the victims here were one actus reus for the purposes of this sentencing statute and consistent with our long-settled interpretation of Penal Law section 70.25(2)." (Id. at __.)

Judge Graffeo dissented, and would have permitted the first-degree Murder sentences to run consecutive. "Each shooting was a separate act and each offense required the People to prove both shootings, i.e. each count required proof of more than one act. There was no single act or omission which in itself constituted one of the offenses. Because defendant's criminal conduct does not fall within either scenario addressed in Penal Law section 70.25(2), consecutive sentencing is not prohibited." (Id. [GRAFFEO, J., dissenting].)


Thanks for coming to Albany!

People v Person, 2007 NY Slip Op 03959 [available here]

The Court declines to decide Mr. Person's case on the merits and instead holds the issue is not preserved for the Court's review. For a Court that controls its own docket, an awful lot of criminal decisions have been tossed on preservation grounds this year. (See People v Miller, 2007 NY Slip Op 03595 [issue not preserved]; People v Gomcin, 2007 NY Slip Op 02590 [record support for lower court's determination]; People v Melendez, 2007 NY Slip Op 02438 [issue not preserved]; People v Dallas, 2007 NY Slip Op 02440 [record support for lower court's determination].)

AD2: Decisions for May 2, 2007

Murder conviction overturned based on prosecutor's misconduct

People v Bennett, 2007 NY Slip Op 03937 [available here]

Prior to trial, defense counsel asked the prosecutor to turn over a specific police report that memorialized the statement of a civilian witness (Ricky Davis). The prosecutor denied that Davis was going to testify, and therefore the police report was not Rosario material.

At the end of their case, the prosecutor called Ricky Davis to testify. Davis was allowed to testify (over objection) that the murder victim had identified the defendant as his killer before police arrived. (Bennett, 2007 NY Slip Op 03937.) The Second Department reversed based on the prosecutor's misconduct in a very strongly-worded decision, holding the prosecutor "ambushed the defense by his deception" and "capitaliz[ed] on these unfair tactics in summation." (Id.)

Denial of right to counsel may be raised for the first time on appeal

People v Wood, 2007 NY Slip Op 03955 [available here]

During his interrogation, Mr. Wood "told police 'I think I should get a lawyer'[...]." (Wood, 2007 NY Slip Op 03955.) Questioning continued, and Wood ultimately gave a videotaped statement. The Second Department held that the statement should have been suppressed, and that the error did not need to be preserved for appeal. "While this issue was not raised before the hearing court, the claimed deprivation of that constitutional right may be raised for the first time on appeal." (Id.)

While Mr. Wood dodged the preservation bullet--fatal to so many appeals--he was felled by another standby of appellate jurisprudence; the Court held the "error was harmless beyond a reasonable doubt in light of the overwhelming evidence of the defendant's guilt." (Id.)

CA: Decisions for May 1 & 3, 2007

Defendant's denial of guilt, challenge to time of arrest and reliability of witness sufficient to warrant probable cause hearing

People v Bryant, 2007 NY Slip Op 03791 [available here]

The trial court in Bryant denied the defendant's request for a probable cause hearing "on the ground that defendant failed to present sufficient information to obtain a hearing where defendant denied acting as the principal or accomplice, raised a question of fact regarding the time of his arrest and challenged the reliability of the alleged witness." (Bryant, 2007 NY Slip Op 03791 at __.) The Court of Appeals (in a unanimous decision by Judge Jones) reversed, noting that the defendant could not have been expected to be more precise in his pleadings when the People were not divulging much by way of discovery. "Here, defendant . . . lacked critical information only the People could provide--i.e., the factual predicate for his arrest. Because defendant lacked this information, he was not in a position to allege facts disputing the basis for his arrest. The People could not both refuse to disclose the informant's identity, or at least some facts showing a basis for the informant's knowledge the police relied upon to establish probable cause for the arrest, and insist the defendant's averments in his pleadings were insufficient to obtain a Mapp/Dunaway hearing." (Id. at __.) A very useful decision for the criminal defense bar.


Intoxication is not an affirmative defense to third-degree sodomy

People v Newton, 2007 NY Slip Op 03754 [available here]

The Court (in a unanimous decision by Judge Read)holds that intoxication is not an affirmative defense to sodomy in the third degree. To be guilty of sodomy in the third degree, a defendant must engage in a sex act with another person without consent. The statute makes the standard for determining "consent" an objective one; the question is whether "a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances." (Newton, 2007 NY Slip Op 03754 [quoting Penal Law 130.05[2][d].) The Court held that, "[b]ecause a defendant's subjective mental state is not an element of the crime of third-degree sodomy, evidence of intoxication at the time of the sexual act is irrelevant. Thus, the trial judge in this case properly declined to instruct the jury on intoxication with respect to the charge of this crime." (Newton, 2007 NY Slip Op 03754.)

I agree with that last bit; if there is no intentional mens rea, then a defendant is not entitled to have intoxication charged as an affirmative defense. But it seems to go a bit further than necessary to say that evidence of intoxication is "irrelevant" to the crime of third-degree sodomy. The standard is an objective one, but the issue of consent is viewed from the perspective of a "reasonable person in the actor's situation". If the defendant is intoxicated at the time of the incident, then it would seem the proper inquiry for the jury is whether a reasonable, intoxicated person would have understood the complainant's words and actions to indicate a lack of consent. While not technically an affirmative defense that needs to be charged to the jury, a defendant's intoxication is nevertheless a fact to be considered by the jury in determining guilt. So, again, perhaps saying evidence of intoxication is "irrelevant" takes things a little too far.


Bite my finger

People v Chiddick, 2007 NY Slip Op 03757 [available here]

Mr. Chiddick bit a man in the finger while attempting a burglary. "The bite caused [the man's] fingernail to crack and his finger to bleed." (Chiddick, 2007 NY Slip Op 03757.) The man testified that the bite caused him "moderate" pain. (Id.) A jury convicted Chiddick of second-degree Assault on the theory that the finger-bite caused "substantial pain." (Id. at __.) The Court of Appeals (in a unanimous decision written by Judge Smith) found the trial evidence sufficient to establish the "substantial pain" required. In doing so, the Court waters down the "substantial pain" standard significantly.

The pain must only be "more than slight or trivial," and "need not . . . be severe or intense to be substantial." (Id. at __.) Great weight was placed on an objective view of the injury. (Id. at __ ["Here, defendant broke Gentle's fingernail and caused him to bleed--an experience that would normally be expected to bring with it more than a little pain."].) Also relevant was the fact that the victim sought medical treatment ("an indication that his pain was significant"). (Id. at __.) The Court even goes so far as to consider the defendant's motive in inflicting the wound. (Id. ["Motive is relevant because an offender more interested in displaying hostility than in inflicting pain will often not inflict much of it."].)

A decision long on speculation, speaking what would "seem" unlikely, what would "normally be expected", etc. Such contortions necessary, it must be noted, because the victim's testimony established only a "moderate" degree of pain, and turning "moderate" into "substantial" takes a fair bit of doing.


Juror not "grossly unqualified" based on acquaintance with complainant

People v Dukes, 2007 NY Slip Op 03758 [available here]

The trial court erred in dismissing a sworn juror over the defendant's objection. "[A] Court may not dismiss a sworn juror unless it has determined that he or she is 'grossly unqualified to serve in the case'--that is, only 'when it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict.'" (Dukes, 2007 NY Slip Op 03758.) In Dukes, a juror revealed mid-trial that she knew the complainant, but assured the trial court that she was "100 percent sure" that she could be fair and impartial. The trial court replaced the juror with an alternative anyway, without first determining if she was grossly unqualified to serve. "On this record, the juror's dismissal was improper, and thus defendant is entitled to a new trial. The court failed to determine that juror number three was grossly unqualified--or indeed, unqualified at all." (Id. at __.)

UPDATE: Nicole over at Sui Generis tackles the remaining decision from the Court of Appeals' latest packet (People v Castillo, 2007 NY Slip Op 03795) here.

AD1: Decisions for May 1 & 3, 2007

Evidence of third-party fluid in rape victim's underwear properly excluded

People v Thomas, 2007 NY Slip Op 03775 [available here]

On trial for rape, Mr. Thomas offered evidence to show that "an amylase stain found on the victim's underwear contained DNA from an unidentified man other than defendant." (Thomas, 2007 NY Slip Op 03775.) The trial court refused to allow the evidence, and the First Department affirmed. The Court reasoned that since "it was undisputed that the victim's underwear had been removed prior to the sexual attack and that she never put it back on", Mr. Thomas could not have been the fluid donor and the evidence of third-party amylase was irrelevant. (Id. at __.) Since the third-party evidence had no probative value, the Supreme Court's decision in Holmes v South Carolina (547 US 319 [2006])--holding it was error for the trial court to preclude probative evidence a third-party culpability even in the face of overwhelming trial evidence of guilt--was not implicated.


Just the facts, officer (at least when defense counsel is doing the questioning)

People v Cestalano, 2007 NY Slip Op 03782 [available here]

Usually in a drug case, police officers are allowed to give an "expert" opinion on almost anything, be it the import of drug packaging, the significance of the recover of certain amounts and denominations of money--you name it, a narcotics officer can opine on the relative importance of most evidence in a drug case. This drives me nuts. So it warmed my heart to see the First Department hand down a decision curbing this "expert cop" free-for-all. "The officer's subjective opinions on the 'importance' of prerecorded buy money were not relevant and the court properly directed counsel to only ask questions that would elicit the facts of the case." (Cestalano, 2007 NY Slip Op 03782.)

Of course, the buy money in Cestalano was not recovered, and it was defense counsel who was questioning the narcotics officer about his opinion on the significance of the absence of the buy money. But I am sure the prosecutor would have been similarly constrained to eliciting "the facts of the case" from the narcotics officer on direct examination. And I am positive that the First Department would have reversed the defendant's conviction if the prosecutor had asked the officer to give his opinion about the relative importance of the evidence.

Umm . . .never mind. (People v Lopez, 288 AD2d 118, 119 [1st Dept 2001] ["The court properly exercised its discretion in admitting expert testimony on street-level narcotics transactions. The expert testimony was not based on speculation and was relevant to explain defendant's role in the transaction and the absence of drugs or pre-recorded buy money on defendant's person when arrested"]; See People v McNair, 26 AD3d 245 [1st Dept 2006] ["While the court should have provided limiting instructions at the time expert testimony was received regarding the practices of narcotics sellers, we find no basis for reversal"]; People v Rojas, 15 AD3d 211, 212 [1st Dept 2005] ["the court properly exercised its discretion in permitting the observing officer to give expert testimony concerning the roles of participants in street-level drug sales"].)

AD3: Decision for May 3, 2007

Evidence establishing "dangerous speeding" sufficient to sustain criminally negligent homicide conviction

People v Cabrera, 2007 NY Slip Op 03798 [available here]

Three passengers in Mr. Cabrera's car were killed when "defendant lost control of the vehicle while negotiating a curve and dip in the roadway at the bottom of a hill, partially cross into the left lane and then skidded off the road," striking a telephone pole and a tree. Mr. Cabrera was driving about 70 miles per hour in a 55 zone, and "there was a hazard sign with a recommended speed limit of 40 miles per hour" for the curve. (Cabrera, 2007 NY Slip Op 03798.) A jury convicted Mr. Cabrera of criminally negligent homicide.

On appeal, Mr. Cabrera argued that "evidence of this speed alone is not legally sufficient to sustain the charges of criminal negligent homicide . . . and that the record contains no further admissible evidence with respect to" that charge. (Id. at __.) While agreeing that proof of speed in excess of the posted limit, standing alone, would not be enough to establish criminally negligent homicide, the Third Department found the other proof at trial (i.e. crossing the center line, ignoring the hazard sign), in connection with the evidence establishing the speed of defendant's car at about 70 miles per hour at the time of the crash, was "sufficient to establish 'dangerous speeding' and to sustain defendant's convictions of criminally negligent homicide and assault." (Id.)