Some Recent Decisions From the Second Department

From Jim Eckert:

People v Russell , 47 AD3d 732 - Defendant, charged with CPW3, claimed temporary lawful possession. The court ruled that the trial court failed to make clear in the jury instructions that the People had to disprove this claim beyond a reasonable doubt, especially in light of the trial court’s failure to adequately marshal the evidence. Answering a jury question on the issue still failed because “the proper standard regarding the burden of proof was not clearly and unequivocally conveyed.” The court apparently went beyond the CJI as well. If the rule on appeal is that the People’s burden "must be clearly and unequivocally conveyed", it would represent a significant improvement over the typical standard, which is whether the charge, taken as a whole, conveys the right standard. The latter test frequently results in approval of a charge which contains contradictory statements of the law. If the trial court doesn't know the law, the jury is still presumed to divine the proper standard from a confused court if it's in the charge somewhere. You'd think that the law must be "must be clearly and unequivocally conveyed", until now you'd have been wrong. You may still be wrong.

People v Gonzalez , 47 AD3d 831 - Following a robbery, the victim gave a description which was at odds in some ways with the defendant’s characteristics. The defense attempted to introduce expert testimony, which was denied without a Frye hearing. The court, citing People v LeGrand (8 NY3d 449) reversed based on the trial court’s refusal to permit the introduction of expert testimony on the reliability of ID testimony.

People v Romeo , 47 AD3d 954 - D “killed [the victim]” in 1985. He agreed to surrender in 1987, but instead fled to Canada and “killed a New Brunswick constable”. He returned to the US and was arrested a few days later. DNA was taken, implicating D, and he was indicted the same month. The prosecution agreed to permit Canada to try the defendant first, and successfully opposed the defendant’s motion to be arraigned first. Speedy trial concerns were raised at this time, and the County Court judge who denied the defendant’s motion said the People would have to live with the risks they were taking. D was convicted in Canada, and the People made no effort to obtain his return. In 1999, the defendant moved to dismiss on constitutional and statutory speedy trial grounds; it was denied. The People successfully argued that the then-existing extradition treaty would have required that his Canadian sentence be commuted. The treaty was amended in 2003 and extradition was sought. In 2006 D pled to Man1 and 7-21 concurrent. He did not renew his speedy trial claim. The Second Departement ruled that his constitutional speedy trial claim was not barred because he had not abandoned it before it was decided - because it was denied in 1999. On the merits, the court held that, murder is serious, but a twelve year delay is extraordinary. That the People may have mistakenly believed that the defendant could be extradited once he was convicted in Canada “militate[s] in the People’s favor”, but not enough. Unspecified prejudice to the defendant was recited, so I am not sure if it’s the obvious, or something not mentioned. The charge was dismissed.

People v Berry , 2008 WL 803939 - Inferential bolstering lives! The People elicited testimony from a detective that a telephone/address book was recovered from one of two people who fled from the scene, and who the complainant said was not the perpetrator. The detective said he photocopied one page from this person’s phone book, and put out a “wanted card” for the defendant. “The plain implication of the detective’s testimony was that [the person with the phone book], who was not called as a witness at trial, accused the defendant of committing the instant offense (see People v Johnson , 7 AD3d 732 ...)”. The People also said, in opening, that this person knew who did the shooting and identified him to police. The defendant’s objection was poor, but the trial court’s ruling demonstrated that it confronted and resolved the issue. Because this implicated the defendant’s confrontation rights, and it was a single eyewitness case, conviction reversed.