Sunday, February 10, 2008

Other Significant AD 4th Department Decisions Issued February 8, 2008

1. People v Prior 2008 NY Slip Op 01189 [2/8/08]

Contrary to defendant's contention, County Court did not err in admitting evidence that defendant was on parole at the time of the crime, had stopped reporting to his parole officer and had violated parole by leaving New York State immediately thereafter. That evidence was relevant in establishing "defendant's consciousness of guilt, and the probative value of the evidence outweighed its prejudicial effect" (People v Topolski, 28 AD3d 1159, 1160, lv dismissed 6 NY3d 898, lv denied 7 NY3d 764, 795; see People v Wynder, 41 AD3d 209, lv denied 9 NY3d 884; People v Jones, 276 AD2d 292, lv denied 95 NY2d 965).

2. People v Foss 2008 NY Slip Op 01190 [2/8/08]

Where the defendant was convicted of two counts of sexual abuse in the first degree (Penal Law § 130.65 [3]) the Court held that
the imposition of consecutive sentences with respect to each count renders the sentence unduly harsh and severe, and we therefore modify the judgment as a matter of discretion in the interest of justice by directing that the sentences shall run concurrently with respect to each other (see CPL 470.15 [6] [b]; see generally People v Bailey, 17 AD3d 1022, 1023, lv denied 5 NY3d 803).

3. People v Quick 2008 NY Slip Op 01194 [2/8/08]
The People appeal from an order granting defendant's motion to dismiss the indictment pursuant to CPL 210.20 (1) (a) and 210.35 (4). We agree with the People that, because they provided defendant with the requisite notice that the matter was to be presented to a grand jury and defendant failed to notify them of his intent to testify (see CPL 190.50 [5] [a]), Supreme Court erred in granting the motion. Defendant, represented by an assigned attorney from the Public Defender's office, was arraigned on the underlying felony complaint on November 6, 2004. At that arraignment, defendant was furnished with a written notice of presentment to a Monroe County grand jury on November 9, 2004. On November 8, 2004, the Public Defender's office discovered a conflict of interest in its representation of defendant, and the following day another attorney was assigned to represent defendant. That attorney did not notify the People of defendant's intent to testify before the grand jury.
We conclude that defendant had sufficient time to consult with defense counsel prior to the filing of the indictment and, because neither defendant nor defense counsel notified the People that defendant intended to testify before the grand jury, defendant was not deprived of the right to testify (see People v Johnson, ___ AD3d ___ [Dec. 21, 2007]; see also People v Lyons, 40 AD3d 1121, 1122-1123, lv
denied 9 NY3d 878; cf. People v Evans, 79 NY2d 407, 415).

4. People v Arguinzoni 2008 NY Slip Op 01204 [2/8/08]
The court properly denied defendant's challenge for cause to a prospective juror based on the prospective juror's inability to read and write. The Judiciary Law requires in relevant part that a juror must "[b]e able to understand and communicate in the English language" (Judiciary Law § 510 [4]; see CPL 270.20 [1] [a]), but there is no requirement for reading and writing skills…Defendant further contends that the court erred in allowing other jurors to author notes for the prospective juror in question, who was designated as the jury foreperson pursuant to CPL 270.15 (3). We reject that contention. The record establishes that the notes were initialed by the foreperson, and it cannot be said that defendant was prejudiced by that procedure inasmuch as "the law recognizes no special function for a foreperson other than acting as the jury's spokesperson" (People v Burgess, 280 AD2d 264, 265, lv denied 96 NY2d 798).

5. People v Dean 2008 NY Slip Op 01209 [2/8/08]
[D]efendant [contention]... that he was denied effective assistance of counsel…does not survive his guilty plea or his waiver of the right to appeal because there was no showing " that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance' " (People v Leonard, 37 AD3d 1148, lv denied 8 NY3d 947).

6. People v Mc Cloud 2008 NY Slip Op 01213 [2/8/08]
The Court affirmed the dismissal of two murder charges on constitutional speedy trial grounds where
Defendant was arrested on February 6, 2002 and indicted on July 11, 2002 for a murder that occurred on December 29, 2001. On September 25, 2002, the only eyewitness who was able to identify defendant was murdered by a person known to be one of defendant's associates. On March 10, 2003, after a Geraci hearing, the court determined that the People failed to establish by clear and convincing evidence that defendant was "involved in procuring the witness's unavailability for live testimony" (People v Geraci, 85 NY2d 359, 368), and it therefore refused to permit the People to use the grand jury testimony of the witness in their case-in-chief against defendant. Although the court released defendant on his own recognizance at that time because the People advised the court that they were unable to proceed to trial, defendant was a furloughed prisoner at the time of his arrest in February 2002, and he therefore remained imprisoned on that unrelated charge. On August 12, 2003, the court denied defendant's motion to dismiss the indictment on speedy trial grounds. Defendant thereafter renewed his motion, and the court granted that motion on January 20, 2004, after the People again advised the court that they were unable to proceed to trial.

The Court explained that
It is well established that, in determining whether a defendant has been denied his or her constitutional right to a speedy trial, "the trial court must engage in a sensitive weighing process of the diversified factors present in the particular case" (Taranovich, 37 NY2d at 445). Although the delay in prosecution here was the result of the murder of the eyewitness and defendant was not incarcerated solely on the basis of the murder charges (see generally id.), the court properly determined that the People were no closer to obtaining additional evidence in January 2004 than they had been in March 2003. The People asserted that they "might" be able to obtain information from defendant's associates concerning the motive of the murder of the eyewitness in order to establish defendant's involvement with that murder, thereby allowing them to use the grand jury testimony of the eyewitness in their case against defendant. Nevertheless, the court properly noted that the People thus far had been unable to obtain the cooperation of defendant's associates and that they were unable to demonstrate any further efforts to obtain that cooperation.

7. People v Riley 2008 NY Slip Op 01214 [2/8/08]
The court properly allowed the People to present evidence of uncharged sexual offenses against the victim in order to establish the element of forcible compulsion with respect to the count of rape in the first degree (see People v Gainey, 4 AD3d 851, lv denied 2 NY3d 799). The court also properly allowed defendant's wife to testify with respect to her observations of defendant's body. Those observations did not concern "knowledge derived from the observance of disclosive acts done in [her] presence or view" (People v Daghita, 299 NY 194, 199) but, rather, they were merely observations concerning defendant's physical characteristics (cf. id. at 198-199; People v Marinaccio, 15 AD2d 932, 933). Finally, the court did not err in allowing the People to cross-examine defendant on the issue whether he rented or purchased adult videos. Defendant opened the door to such questioning when he testified on direct examination that he once possessed an adult video given to him by a coworker (see generally People v Van Kuren, 1 AD3d 960, lv denied 1 NY3d 635), and the People merely sought to elicit testimony that defendant had a membership card for an X-rated video store.

8. People v O'Keefe 2008 NY Slip Op 01228 [2/8/08]
The record establishes that County Court did not advise defendant at the time of the plea proceeding that his sentence would include a mandatory period of postrelease supervision. As a result, defendant was unable "to knowingly, voluntarily and intelligently choose among alternative courses of action" (People v Catu, 4 NY3d 242, 245; see People v Minter, 42 AD3d 914), and his plea must be vacated.

9. People v Camelo 2008 NY Slip Op 01248 [2/8/08]
The burglary and petit larceny charges stem from defendant's entry into the apartment where defendant had been living with his girlfriend and their two children, and his removal therefrom …. [T]he verdict is against the weight of the evidence with respect to the count of petit larceny…. Although the weight of the evidence establishes that defendant removed some of his girlfriend's belongings from the apartment, it also establishes that he voluntarily returned those belongings to his girlfriend within a short time thereafter. Consequently, the evidence weighs heavily in favor of a finding that defendant did not intend to steal the property from his girlfriend within the meaning of Penal Law § 155.25,i.e., he did not intend "to withhold [the property] from [her] permanently" (§ 155.00 [3]; see § 155.05; see generally People v O'Reilly, 125 AD2d 979). We find that the jury "failed to give the evidence the weight it should be accorded" on the issue of defendant's intent to commit petit larceny (Bleakley, 69 NY2d at 495), and we therefore modify the judgment by reversing that part convicting defendant of petit larceny and dismissing count two of the indictment. In view of our reversal of that part of the judgment convicting defendant of petit larceny as against the weight of the evidence, and because there is no evidence that defendant intended to commit any other crime upon his entry into the apartment (cf. People v Lewis, 5 NY3d 546, 551-552), we further find that the burglary conviction is against the weight of the evidence (see generally People v Gaines, 74 NY2d 358, 362-363). We therefore further modify the judgment by reversing that part convicting defendant of burglary in the second degree and dismissing count one of the indictment.

Evidence of Common Scheme or Just Evidence of Propensity?

The Court divided as to whether, in a sex crime case, the People should be allowed to present testimony that the defendant committed similar acts with the victim in another county during the same time frame as that alleged in the case at bar. In People v Leeson 2008 NY Slip Op 01243 [2/8/08], County Court admitted extensive testimony from the victim, her brother, and her mother concerning two incidents, occurring in "late August, early September," in which defendant took the victim and her brother to a house and office in Penn Yan, Yates County, to help clean it, and there "some of the same things happen[ed in Penn Yan] as happened on the side of the road near [the victim's] mom's house[]" in Ontario County
The majority held that admission was proper in a case in which
the People's theory was that defendant planned to place the victim in secluded locations in which she was alone with him for the purpose of engaging in sexual activity with her. We thus agree with the court that evidence that he did so on two occasions in addition to those charged in the indictment herein was admissible to establish the common scheme or plan. In any event, we conclude that the evidence also was admissible to complete the narrative of the events charged in the indictment (see People v Till, 87 NY2d 835, 837; People v Gines, 36 NY2d 932, 932-933; People v Jones, 27 AD3d 1161, lv denied 7 NY3d 849), and to provide necessary background information (see People v Conrow, 13 AD3d 1116, lv denied 4 NY3d 829; People v Tarver, 2 AD3d 968). Finally, the probative value of that evidence outweighed any prejudicial impact (see generally Allweiss, 48 NY2d at 47).
By contrast, the two Justices who dissented found that this evidence was solely relevant as to propensity and, thus inadmissible:
We cannot endorse the majority's reliance on the common scheme or plan exception to the general rule excluding evidence of uncharged crimes. A defendant charged with sex crimes would rarely, if indeed ever, engage in such conduct in a public venue but, rather, the defendant would likely choose a secluded location for the purpose of engaging in illicit sexual activity. We therefore cannot agree that the evidence of the two uncharged incidents was admissible to establish that defendant had a common scheme or plan. We also cannot agree with the majority that the evidence of those uncharged crimes was "admissible to complete the narrative of events charged in the indictment . . . and to provide necessary background information," presumably with respect to defendant's relationship with the victim. Addressing first the statement of the majority with respect to "necessary background information," we conclude that, based on the respective ages of the victim and defendant, no specific intent on the part of defendant was necessary to commit the crimes for which defendant was indicted in Ontario County (see Penal Law former § 130.45 [1]; § 130.60 [2]; see generally Lewis, 69 NY2d at 327). We note in any event that the incidents in Yates County occurred either at the same time or after the charged crimes and thus, could not temporally serve to provide background information for defendant's indicted crimes.

Can a Seizure Lawfully be Based on the Officer’s Mistakes as to the Law?

In People v Estrella 2008 NY Slip Op 01239 [2/8/08] the Court divided as to whether the stop of a vehicle with Georgia license plates was lawful where the window tint rendered them less transparent than required pursuant to a Georgia statue which had already been declared unconstitutional. In part the disagreement is over whether the police need to know whether the driver was a Georgia resident and, thus, not subject to New York’s tint rule. The majority held that
We cannot agree with the dissent that the officer who stopped defendant's vehicle knew at the time of the stop that "defendant's vehicle was registered in Georgia and that defendant was a Georgia resident" and thus that, pursuant to Vehicle and Traffic Law § 250 (1), defendant was exempt from the requirements of section 375 (12-a) (b) (4). Section 250 (1) provides in relevant part that the owner of a vehicle that is in compliance with the registration and equipment requirements of the state in which the owner resides is exempt from provisions of the Vehicle and Traffic Law pertaining to registration and equipment. The exemption is applicable, however, only if the state in which the owner resides grants "like exemptions" to residents of New York State (id.). The record of the suppression hearing establishes that, at the time of the stop, the officer did not know whether defendant was the owner of the vehicle, whether the vehicle was properly registered in Georgia, or whether the light transmittance complied with Georgia law (see id.). Rather, the officer knew only that the vehicle was operated on a public highway with a rear window that appeared to be tinted with a material having a light transmittance of less than 70%. We therefore conclude that the officer who stopped the vehicle had the requisite probable cause to believe that a violation of Vehicle and Traffic Law § 375 (12-a) (b) (4) had occurred (see People v Robinson, 97 NY2d 341, 349-350; People v McKane, 267 AD2d 253, lv denied 94 NY2d 921, 922). The stop itself was necessary to obtain the information whether section 250 (1) was applicable and thus whether defendant was exempt from the requirements of section 375 (12-a) (b) (4). Also contrary to the view of the dissent, it is unreasonable to require that police officers be familiar with the equipment requirement laws of every state, and presumably other countries, in order to effectuate a proper stop for a violation of New York State law.

By contrast, the two dissenting Justice reasoned that
New York motor vehicle equipment provisions, however, do not apply to motor vehicles owned by nonresidents of New York, provided that the owner is in compliance with the equipment provisions of the law of the state of his or her residence (see Vehicle and Traffic Law § 250 [1]). Here, the police officer who stopped defendant's vehicle knew only that defendant's vehicle was registered in Georgia and that defendant was a Georgia resident. Thus, Georgia law applied with respect to the tinted rear window on defendant's vehicle, and there was no window tint law in effect when defendant's vehicle was stopped. The window tint statute in Georgia had been declared unconstitutional by the Supreme Court of Georgia (see Ciak v State, 278 GA 27, 28-29, 597 SE2d 392, 394) several months before the defendant's vehicle was stopped, and a new window tint statute was not enacted in Georgia until nearly a year after the prior statute was declared unconstitutional (see Ga L 2005, Act 67). Thus, contrary to the view of the majority, we conclude that the police did not have probable cause to believe that defendant had committed a traffic infraction. While it is true that the officers were unaware that Georgia's window tint statute had been declared unconstitutional, that mistake of law, as opposed to a mistake of fact, cannot justify the stop of a vehicle and the ensuing search and subsequent seizure of evidence therefrom (see People v Smith, 1 AD3d 965; Matter of Byer v Jackson, 241 AD2d 943, 944-945). Further, we discern no valid public policy reason for not requiring police officers to familiarize themselves with the motor vehicle equipment laws of other states if they stop such vehicles solely on the basis of a purported equipment violation. Motor vehicle stops constitute "at least a limited seizure subject to constitutional limitations" (People v John BB., 56 NY2d 482, 487, cert denied 459 US 1010) and, in our view, where a stop is predicated on a traffic infraction, police officers must be charged with the objective standard of knowing whether such an infraction occurred (see generally Robinson, 97 NY2d at 349-350).

Perhaps it should be pointed out that the Court of Appeals has interpreted New York law as providing defendant’s with only a limited mistake of law defense and held in People v Marrero (69 NY2d 382) that the defense of mistake of law was not available to federal corrections officer, who was arrested in social club for possession of loaded .38 caliber automatic pistol and who claimed he mistakenly believed he was entitled pursuant to statute to carry handgun without permit as peace officer.

Insufficient Specificity of Insufficiency of Proof?

Ever since the Court in People v Gray (86 NY2d 10) made clear that a general motion for a trial order of dismissal (T.O.D.) which fails to specify the alleged insufficiency of proof does not preserve the claim that the proof was insufficient counsel and courts have struggled with the questions as what wording is needed in a T.O.D. motion. In depraved murder cases in which the defendant claims that the evidence shows intentional conduct and is, thus, insufficient as to reckless or depraved indifference, the question is what language is required in a T.O.D. motion to raise and preserve the claim.

In People v Hawkins 2008 NY Slip Op 01238 [2/8/08] the Court divided over whether a T.O.D motion was sufficiently specific to preserve the legal insufficiency where the proof was that the defendant acted intentionally, and not recklessly, in killing the decedent.

The majority held that
Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction of depraved indifference murder on the ground that the evidence established an intentional murder and no other crime. In support of his motion for a trial order of dismissal of that count at the close of the People's case, defendant contended "that the People . . . failed to prove a prima facie case of [d]epraved [i]ndifference [m]urder" and that, "[n]ot only [did] they fail to prove a prima facie case that [defendant] was the perpetrator of the homicide[,] . . . they failed to prove that [defendant] acted with [d]epraved [i]ndifference." It is well established that, "even where a motion to dismiss for insufficient evidence [is] made, the preservation requirement compels that the argument be specifically directed' at the alleged error" (People v Gray, 86 NY2d 10, 19, citing People v Cona, 49 NY2d 26, 33 n 2; see also People v Montes, 225 AD2d 1052, lv denied 88 NY2d 882). It is unclear whether defendant's motion for a trial order of dismissal was directed at the alleged legal insufficiency of the evidence of recklessness or at the depraved indifference factual setting in which the murder took place. In either event, defendant failed to preserve for our review his present contention that the evidence is legally insufficient to support the conviction of depraved indifference murder.

By contrast, the two dissenting Justices would have held the motion sufficient to preserve the issue because
in addition to raising the general ground that the People failed to prove "a prima facie case of depraved indifference murder," defendant moved for a trial order of dismissal on the grounds that the People failed to prove that he was the perpetrator of the murder and failed to prove that the perpetrator "acted with [d]epraved [i]ndifference." It of course is assumed that Supreme Court was aware of the elements of depraved indifference murder and thus would have recognized that the motion was addressed to the legal insufficiency of the evidence with respect to the state of mind and nature of the conduct of the perpetrator. Thus, in our view, defendant satisfied the requirement set forth by the Court of Appeals in People v Gray (86 NY2d 10, 19), i.e., that his argument be "specifically directed' at the alleged error," thereby bringing to the attention of the court his contention that the People failed to prove essential elements of the crime of depraved indifference murder (see id.; cf. Finger, 95 NY2d at 895; People v Acevedo, 44 AD3d 168, 172, lv denied 9 NY3d 1004).

Retained Counsel Cannot Withdraw Simply Because He Hasn’t Been Paid

People v Woodring 2008 NY Slip Op 01234 [2/8/08]
Contrary to defendant's contention, the court did not improvidently exercise its discretion in denying trial counsel's motion to withdraw as defendant's attorney. In support of the motion to withdraw, defendant's attorney stated that defendant had not been returning his telephone calls and had refused to accept several plea offers, and he stated that defendant's family had "exhausted" their financial resources and could no longer afford to pay him. Defendant stated in response that he wanted his attorney to continue to represent him and that he "somehow" would find the money to pay him. The failure to return telephone calls does not warrant withdrawal from representation because that failure does not by itself "render[] it unreasonably difficult for the lawyer to carry out employment effectively" (Code of Professional Responsibility DR 2-110 [c] [1] [iv] [22 NYCRR 1200.15 (c) (1) (iv)]), and it is beyond dispute that an attorney is not entitled to withdraw as counsel based on the decision of a defendant to exercise his or her right to trial. Finally, the alleged inability to pay for trial counsel's services does not entitle trial counsel to withdraw as defendant's attorney, particularly in view of the statement of defendant that he would somehow find more money in order to pay his attorney. On the record before us, we conclude that the court properly "balance[d] the need for the expeditious and orderly administration of justice against the legitimate concerns of counsel" (People v Xadi Fen, 192 Misc 2d 788, 790; see generally DR 2-110 [c] [22 NYCRR 1200.15 (c)]).

The Right To Present Evidence Of Threats By Complainant Is Limited

In People v Valentine 2008 NY Slip Op 01231 [2/8/08] the Court affirmed holdings restricting the ability of a defendant to have a jury consider evidence of the complainant’s hostility towards the defendant

We reject the contention of defendant that the court violated his constitutional right of confrontation by refusing to admit in evidence a tape recording of threats made against him by his ex-wife. "[T]he extent to which an examination may be pursued for the purpose of proving the hostility of a witness is within the discretion of the court" (People v Sutherland, 280 AD2d 622, 623, lv denied 96 NY2d 835; see also People v Jones, 37 AD3d 1111, lv denied 8 NY3d 986). "If bias or interest has been fully explored through other means . . ., or the precluded area involved cumulative matter already presented . . ., there generally has been no infringement of the right of confrontation" (People v Chin, 67 NY2d 22, 29; see People v Corby, 6 NY3d 231, 235-236) and, here, the court afforded defendant a sufficient opportunity to establish the hostility of the witness. Contrary to the further contention of defendant, the court properly permitted his ex-wife to testify concerning their marital discord to explain or clarify issues brought out on cross-examination (see generally People v Mateo, 2 NY3d 383,425, cert denied 542 US 946).

The Initial Aggressor and the Justified Use of Deadly Physical Force

There may be circumstances in which a defendant is the initial aggressor and can still justifiably respond with deadly physical force.

In People v Mc Williams 2008 NY Slip Op 01229 [2/8/08] the Court that
…[W]here there is a reasonable view of the evidence that the defendant initiates nondeadly offensive force and is met with deadly physical force, the defendant may be justified in the use of defensive deadly physical force and that, in such cases, the term initial aggressor is properly defined as the first person in the encounter to use deadly physical force (see e.g. People v Daniel, 35 AD3d 877, 878, lv denied 8 NY3d 945; People v Walker, 285 AD2d 364, lv denied 97 NY2d 643; People v Mickens, 219 AD2d 543, lv denied 87 NY2d 904).

Despite this holding, which appears to differ for the CJI charge on justification, the held that
We nevertheless conclude that, despite the absence of the word "deadly" from that part of the court's charge defining the term initial aggressor, the court's justification charge adequately conveyed to the jury that defendant could be justified in the use of deadly physical force to defend himself against deadly physical force initiated by the victim. Thus, the justification charge, viewed in its entirety, was "a correct statement of the law" (People v Coleman, 70 NY2d 817, 819; see People v Melendez, 11 AD3d 983, 983-984, lv denied 4 NY3d 888; see generally People v Ladd, 89 NY2d 893, 895; People v McDaniels, 19 AD3d 1071, lv denied 5 NY3d 830).

Is People v Ventimiglia Still the Controlling Law?

In a number of recent decisions the Fourth Department has approved the admission of uncharged crime evidence despite the failure of the People to first obtain a pretrial Ventimiglia (52 NY2d 350) ruling. Most recently, in People v Maclean, 2008 NY Slip Op 01188 [4th Dept 2/1/08] the Court held that

We reject the contention of defendant that he was deprived of a fair trial when the court allowed the People to elicit evidence concerning uncharged crimes without first obtaining a Ventimiglia ruling. The court has discretion to admit evidence despite the failure of the People to provide advance notice of their intent to present such evidence (see People v McLeod, 279 AD2d 372, lv denied 96 NY2d 921; see generally People v Robinson, 28 AD3d 1126, 1128, lv denied 7 NY3d 794), particularly where the defendant was aware of the evidence (see Robinson, 28 AD3d at 1128; People v Himko, 239 AD2d 661, 662, lv denied 90 NY2d 906).

In Robinson (28 AD3d 1126 [4/28/06]), the Court held that

Defendant has failed to establish that he was prejudiced by the fact that the Ventimiglia evidence was deemed admissible as a result of an offer of proof made to the court during the sidebar conference at trial. "A defendant is not entitled to have such a [Ventimiglia] hearing conducted before trial" (People v Torres, 300 AD2d 46, 46 [2002], lv [*2]denied 99 NY2d 633 [2003]) and, furthermore, an offer of proof is acceptable where, as here, the defendant is aware of the proposed testimony (see People v Himko, 239 AD2d 661, 662 [1997], lv denied 90 NY2d 906 [1997]; see also People v Glass, 259 AD2d 989, 990 [1999], lv denied 93 NY2d 924 [1999]).
See also the decision of the Court in People v Small 2008 NY Slip Op 00855 [2/1/08)

The Maclean decision does not make clear whether there was ever a ruling on the admissibility of the evidence of uncharged crimes – either at a pre-trial hearing or in an offer of proof during the trial. Obviously, the content of defense counsel’s voir dire, opening statement, and questions to witnesses is impacted by counsel’s understanding as to the evidence which will be admitted at trial. Apparently, the Fourth Department no longer believes that there is a requirement that the People give pre-trial notice of intent to elicit such evidence. Notably, none of the decisions the Court cites in support of its holding are from the Court of Appeals. One would think that a relaxation or outright rejection of a requirement that the admissibility of evidence of uncharged crimes be determined pre-trial is a matter of statewide significance which the Court of Appeals should want to consider.

Sunday, February 03, 2008

AD 4th Department Decisions of February 1, 2008

People v Whyte 2008 NY Slip Op 00740

Contrary to the contention of defendant, County Court properly refused to suppress evidence allegedly obtained as a result of a violation of his physician-patient privilege. Indeed, "even if there was a violation of the physician-patient privilege, the suppression of the evidence found as a result is not required" (People v Greene, 9 NY3d 277, 280). The court also properly refused to suppress statements that defendant made during a telephone conversation with the victim's mother that was recorded by the police. The statements were not obtained in violation of defendant's right to counsel because no formal proceedings had been commenced against defendant when the conversation was recorded, and it cannot be said that the matter had otherwise progressed from an investigatory to an accusatory stage (see People v Samuels, 49 NY2d 218, 221; see generally Kirby v Illinois, 406 US 682, 688-690; People v West, 81 NY2d 370, 373). In addition, the statements were not obtained in violation of defendant's right against self-incrimination despite the failure of the victim's mother to inform defendant that the police were recording the conversation (see People v Lee, 277 AD2d 1006, 1007, lv denied 96 NY2d 785; People v Williams, 242 AD2d 867, lv denied 91 NY2d 899).

People v Figgins 2008 NY Slip Op 00742

We reject the contention of defendant that his statutory and constitutional rights to a jury pool representing a fair cross section of the community were violated. "Defendant's motion papers failed to set forth sufficient facts demonstrating a systematic exclusion of African-Americans from the jury pool" (People v Cotton, 38 AD3d 1189, lv denied 8 NY3d 983; see People v Owens, 39 AD3d 1260, 1260-1261, lv denied 9 NY3d 849). Defendant offered no evidence indicating that the disproportionately lower percentage of African-Americans in the jury pool was attributable to some aspect of the process used to fill jury pools in Monroe County.

Also, in a burglary case the Court held that it was proper to allow

the People to introduce in evidence his admission that he used crack cocaine inasmuch as that admission was relevant to the issue of motive (see People v Tutt, 305 AD2d 987, lv denied 100 NY2d 588; see generally People v Ventimiglia, 52 NY2d 350, 359; People v Molineux, 168 NY 264, 293-294).

People v Torres 2008 NY Slip Op 00743
County Court erred in imposing a five-year period of postrelease supervision for a class D violent felony offense (see § 70.02 [former (1) (c)]; § 70.45 [former (2)]; People v Clinkscales, 35 AD3d 1266). Inasmuch as the record does not indicate whether the court intended to impose the maximum period of postrelease supervision, we modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing (see People v Bowden, 15 AD3d 884, lv denied 4 NY3d 851, 5 NY3d 786; cf. People v Roman, 43 AD3d 1282; People v Keith, 26 AD3d 879, lv denied 6 NY3d 835).

People v Morrison 2008 NY Slip Op 00744
We agree with defendant that defense counsel should not have questioned him concerning the underlying charges of his 1988 conviction when County Court's Sandoval ruling precluded the People from doing so and that defense counsel should have objected when the prosecutor questioned defendant in violation of the court's Sandoval ruling. We note, however, that defendant's answer to the prosecutor's question was non-responsive and that the prosecutor immediately moved on to a different line of questioning. We thus conclude that defense counsel's errors were not so egregious and prejudicial that they deprived defendant of his right to a fair trial.

People v Lundy 2008 NY Slip Op 00746
Contrary to the further contention of defendant, the court properly refused to order the People to provide the criminal history reports of certain prosecution witnesses inasmuch as the record establishes that the People were unaware of the criminal histories of those witnesses and thus were not required to furnish such reports (see CPL 240.45 [1] [b]; Defendant failed to preserve for our review his contention that the People failed to disclose alleged Brady material (see People v Little, 23 AD3d 1117, 1118, lv denied 6 NY3d 777; People v Martinez, 298 AD2d 897, 898, lv denied 98 NY2d 769, cert denied 538 US 963, reh denied 539 US 911) and, in any event, that contention lacks merit. The information at issue, i.e., the fact that a witness was testifying pursuant to a material witness order, does not constitute Brady material because it is not exculpatory (see generally People v Arhin, 203 AD2d 62, 63, lv denied 83 NY2d 908).

People v Nicol 2008 NY Slip Op 00777 and People v Reese 2008 NY Slip Op 00803
Defendants appeal from a new sentence pursuant to the 2005 Drug Law Reform Act ([DLRA-2] L 2005, ch 643, § 1) granted upon their applications to be resentenced upon his 2004 conviction of criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [former (1)]). Defendants’ contentions are the same as those raised by the defendant in People v Williams (45 AD3d 1377) and, for reasons stated in our decision in that case, we reverse the sentence and remit the matter to County Court to determine defendant's application in compliance with DLRA-2.

In People v Williams (45 AD3d 1377) the Court held that
the court erred in failing to comply with DLRA-2 because it failed to set forth written findings of fact and the reasons for its determination to impose a determinate term of 13 1/2 years imprisonment and a five-year period of postrelease supervision (see L 2005, ch 643, § 1). In addition, we conclude that the court erred in stating that the original sentence would stand before affording defendant an opportunity to exercise his right to appeal and to withdraw his application following that appeal (see id.).

People v Tabor 2008 NY Slip Op 00836
We agree with defendant that County Court erred in summarily denying his request to proceed pro se. "A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues" (People v McIntyre, 36 NY2d 10, 17; see People v D'Antuono, 263 AD2d 968, 969). In determining that a defendant is acting knowingly and voluntarily, the court must "ensure that the defendant . . . is aware of the disadvantages and risks of waiving his right to counsel" (People v Schoolfield, 196 AD2d 111, 115, lv dismissed 83 NY2d 858, lv denied 83 NY2d 915). Here, the record establishes that all three prongs of the test in McIntyre were met (see People v Ward, 205 AD2d 876, 877, lv denied 84 NY2d 873; cf. People v Lott, 23 AD3d 1088, 1089; see generally People v Arroyo, 98 NY2d 101, 103-104).

People v Delarosa 2008 NY Slip Op 00840
We agree with defendant that, by pleading guilty, he did not forfeit his contention that the People failed to disclose exculpatory evidence prior to the entry of his Alford plea (see generally People v Hansen, 95 NY2d 227, 230-231). " [T]he law . . . appears to be settled . . . [that] Brady material must be disclosed in time for its effective use at trial . . . or at a plea proceeding' " (People v Reese, 23 AD3d 1034, 1036, lv denied 6 NY3d 779, quoting United States v Coppa, 267 F3d 132, 135 [emphasis omitted]), and it would undermine Brady's disclosure requirements if a defendant were deemed to have waived a Brady issue by entering an Alford plea without the knowledge that the People possessed exculpatory evidence. Nevertheless, we conclude that there was no Brady violation based on the prosecutor's failure to provide defendant with the written statement of a witness inasmuch as it was duplicative of comments made by the witness during a 911 call that was recorded and disclosed to defendant before he entered his plea. "Brady does not . . . require prosecutors to supply a defendant with evidence when the defendant knew of, or should reasonably have known of, the evidence and its exculpatory nature" (People v Doshi, 93 NY2d 499, 506; see People v LaValle, 3 NY3d 88, 110; People v Terry, 19 AD3d 1039, 1040, lv denied 5 NY3d 833).

People v Canales 2008 NY Slip Op 00850
We reject the...contention of defendant in support of his motion that he was entitled to withdraw the plea because he was unaware of the immigration consequences of his plea at the time he entered the plea. We reject that contention as well, inasmuch as the immigration consequences of a plea do "not affect the voluntariness of the plea or warrant its vacatur" (People v Klein, 11 AD3d 959, 959). Finally, defendant contends that he was denied effective assistance of counsel based on the failure of his two attorneys to advise him of the immigration consequences of the plea. To the extent that the contention of defendant survives his plea of guilty (see People v Burke, 256 AD2d 1244, lv denied 93 NY2d 851), we conclude that it lacks merit (see People v Ford, 86 NY2d 397, 405).

People v Small 2008 NY Slip Op 00855
County Court properly permitted the People to present Molineux evidence to rebut defendant's agency defense (see People v Ortiz, 259 AD2d 979, 980, lv denied 93 NY2d 1024). Contrary to the contention of defendant, he was not entitled to notice of the People's intention to present such evidence or to a pretrial hearing on the admissibility of such evidence (see People v Torres, 300 AD2d 46, lv denied 99 NY2d 633).

In a reminder to trial counsel of the need to preserve Crawford - confrontation claims that Court held that
Although we agree with defendant that the court erred in admitting in evidence a laboratory report relating to a prior conviction inasmuch as the People failed to establish a proper foundation for the admission of that report (see Matter of Samuel A., 63 AD2d 585), we conclude that the error is harmless (see People v Crimmins, 36 NY2d 230, 241-242). Defendant failed to preserve for our review his further contention that the admission of the laboratory report in evidence violated his constitutional right to confront witnesses against him (see CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

People v Ortiz and Vega 2008 NY Slip Op 00858

County Court had ordered that the charges in an indictment against two defendants be reduced. Neither defendant submitted in briefs in response to the People’s successful appeal of this order. It is difficult enough to win with an attorney. Who dropped the ball?

People v Davis 2008 NY Slip Op 00866
...[C}ontrary to defendant's contention, the showup identification procedure, which was conducted in geographic and temporal proximity to the crime, was not unduly suggestive (see People v Ortiz, 90 NY2d 533, 537; People v Duuvon, 77 NY2d 541, 544). The fact that defendant was removed from a police car does not render the showup identification procedure unduly suggestive (see People v Ponder, 19 AD3d 1041, 1043, lv denied 5 NY3d 809), nor does the fact that he was in handcuffs and was standing next to two police officers render it unduly suggestive (see People v Delarosa, 28 AD3d 1186, 1187, lv denied 7 NY3d 811).

With misidentification being the single greatest cause of wrongful convictions (add cite) one wonders what factors would render showups unduly suggestive.

People v Christopher T. 2008 NY Slip Op 00875
A challenge to the legality of a sentence is not precluded by a defendant's waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10; People v Coleman, 23 AD3d 1033), and we reach the issue despite defendant's failure to raise it at sentencing or on appeal inasmuch as "we cannot allow an [illegal] sentence to stand" (People v Davis, 37 AD3d 1179, 1180, lv denied 8 NY3d 983 [internal quotation marks omitted]). "Where an eligible youth is convicted of two or more crimes set forth in separate counts of an accusatory instrument . . ., the court must not find him a youthful offender with respect to any such conviction . . . unless it finds him a youthful offender with respect to all such convictions" (CPL 720.20 [2]; see People v Huther, 78 AD2d 1011). Here, defendant was convicted of "two or more crimes set forth in separate counts of an accusatory instrument" (CPL 720.20 [2]) and, thus, upon adjudicating him a youthful offender with respect to robbery in the first degree under count one of the superior court information, the court was required to adjudicate him a youthful offender with respect to the remaining counts (see Huther, 78 AD2d at 1011). Moreover, having adjudicated defendant a youthful offender, the court "was without authority to impose consecutive sentences in excess of four years" (People v Ralph W.C., 21 AD3d 904, 905; see Penal Law § 60.02 [2]; People v Simmons, 188 AD2d 668, 669, lv denied 81 NY2d 893). We therefore reverse the judgment and modify the adjudication accordingly.

People v Smith 2008 NY Slip Op 00904

An issue likely to result in appellate relief, even when unpreserved:
[W]e agree with defendant that the court erred in calculating the expiration date of the order of protection without taking into account the jail time credit to which she is entitled (see People v Clinkscales, 35 AD3d 1266, 1267; People v Hare, 27 AD3d 1171, 1172, lv denied 6 NY3d 892, 894, 898). Although defendant failed to preserve that contention for our review, we exercise our power to review that contention as a matter of discretion in the interest of justice (see People v Fomby, 42 AD3d 894, 895; People v Valdez, 41 AD3d 1255, lv denied 9 NY3d 882).

People v Lavilla 2008 NY Slip Op 00930
Defendant moved pursuant to CPL 440.20 (1) to set aside the postrelease supervision part of his sentence as illegally imposed or, in the alternative, for an order setting forth that his sentence does not include a period of postrelease supervision. As limited by his brief, defendant appeals from that part of the order denying his alternative request for relief. We affirm. Pursuant to CPL 440.20 (1), a court in which the judgment of conviction was entered may set aside the sentence on specified grounds and, if defendant had sought to set aside his sentence or withdraw his plea, we would be compelled to permit him to do so (see People v Hill, 9 NY3d 189). Defendant has disavowed his prior request to set aside his sentence, however, and challenges only Supreme Court's refusal to issue an order setting forth that the sentence does not include a period of postrelease supervision. The statute does not authorize the court to issue such an order (see CPL 440.20 [1]), and we thus conclude that the court properly refused to grant that relief.

People v Aaron V. 2008 NY Slip Op 00931

A count dismissed based on an issue raised only in an appellant's pro se supplemental brief.

We agree with the contention of defendant in his pro se supplemental brief that the court erred in failing to grant that part of his omnibus motion seeking to dismiss the third count of the indictment, charging him with sexual abuse in the third degree, on the ground that it was facially defective. "The indictment must set forth a time interval that reasonably serves the function of protecting defendant's constitutional right to be informed of the nature and cause of the [*2]accusation" (People v Risolo, 261 AD2d 921, 921 [internal quotation marks omitted]) and, here, the 12-month period set forth in that count was unreasonable (see People v Beauchamp, 74 NY2d 639, 641; People v Keindl, 68 NY2d 410, 419, rearg denied 69 NY2d 823; see also People v Sedlock, 8 NY3d 535, 539-540), in view of the fact that the victim was 13 or 14 years old during that time period and thus was capable "of discerning, if not exact dates, at least seasons, school holidays, birthdays, or other events which could establish a frame of reference to assist [her] in narrowing the time spans alleged" (Keindl, 68 NY2d at 420). Contrary to the further contention of defendant in his pro se supplemental brief, however, the 4½;-month time period set forth in the first count, charging him with rape in the first degree, was not excessive, in view of the nature of the offense and the age of the victim.