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].