When Does a "Conviction" Occur?

by James Eckert

Many statutes impose harsher penalties on a defendant who commits a crime
after he has been "convicted" of another crime. For example, a UUMV
conviction after a prior is more serious, the second DWI is a felony and so
on. Today, in People v Montilla, the Court of Appeals held that a
defendant is convicted, at least for some purposes, the day he pleads
guilty.

A judgment of conviction is based on the date sentence has been
imposed. However, in order to sustain a conviction under PL 265.02(1) - CPW3, instead of CPW4, the Court of Appeals ruled that "conviction" meant only that the defendant had pled guilty, not that there was a judgment of conviction.
Therefore, after the defendant pled guilty, but before he was sentenced, he
stood "convicted" of the crime he pled to and was therefore subject to
harsher penalties for possession of a weapon.

The Court did point out that recidivist statutes require the imposition of
sentence to constitute a prior conviction, so Montilla does not support a
felony DWI charge the day after the defendant pleads to, but is not
sentenced for, a DWI. However, expect that the statute will be applied to
any other use of the term "convicted" where it is not absolutely clear that
the statute is for recidivists.

Court Divided As To What Consititutes Individualized Showing Needed To Require Defendant To Wear Physical Restraints At Trial

In People v Buchanan [4th Dept 6/6/08] (here) the Fourth Department unanimously held that the use of a stun belt that is not visible to the jury is subject to the same judicial scrutiny as other forms of physical restraint that are visible. Spefically, the Court held that the use of a stun belt that is not visible to the jury requires the court to make the same individualized security determination required for the use of physical restraints that are visible (see Deck v Missouri, 544 US 622, 632).

The Court,however, divided 3-2 as to what constitutes an individualized determination. The majority held that the requirement was satisfied where

the court stated that it had a policy to use restraints in "serious" cases and that it would comply with the recommendation of the Sheriff's deputy to use the restraint.

The dissenting Justices, in an opinion by Justice Fahey, strongly disagreed that the trial judge's reasoning constituted an individualized determination:

In this case, the court set forth on the record three reasons for the use of the stun belt. First, the court stated that it was its policy to place all defendants accused of a crime of a serious nature in either leg shackles or a stun belt during trial. Second, the court stated that the Sheriff's Department wanted defendant to wear the stun belt. Third, the court stated its belief that "an innocent man on trial for murder is more dangerous than a guilty one."
In point of fact, the court noted that defendant had "done [nothing] to warrant" the use of the stun belt, and the only reference to defendant's background was the court's acknowledgment that defendant had never caused any problems in the courtroom in his previous appearances before the court....
The court's blanket policy of placing all defendants in either leg shackles or a stun belt based on the nature of the crime charged is directly contrary to the requirement that there be a case by case determination by the court concerning the necessity for the use of restraints along with the requisite "close judicial scrutiny." The court's blanket policy directly violates the due process requirements for the use of visible restraints... The court should not relegate its duty to apply judicial scrutiny to the Sheriff's Department but, rather, it may consider the recommendation of the Sheriff's Department in making its determination (see generally People v Thomas, 125 AD2d 873, 874)...
Finally, the court's statement "that an innocent man on trial for murder is more dangerous than a guilty one" goes to the very heart of our concern with respect to the procedure used in determining whether the defendant in this case was required to wear a stun belt. The presumption of innocence must be maintained against all attempts to erode it, and courts must ensure that it is not undermined by a desire for convenience or the demands of bureaucratic policies. The presumption of innocence requires that a trial not only be fair, but that it also appears to be fair. The appearance of fairness requires that physical restraints, whether visible or not, be used only where there is an essential state interest. Nothing in the record before us indicates that there was any essential state interest considered in the context of this defendant.

Reversal for Brady Violation Absent Specific Request for Information

In People v Hunter (6/12/08) a unanimous Court of Appeals held that in a sex case, where the defense was consent, it was a Brady violation requiring reversal for the prosecutor to withhold from the defense information that in another pending case the same complainant has accused a man of rape and his claim was that the sex had been consensual. The Court rejected the argument that the subsequent guilty plea by the defendant in the other case obviated the Brady violation. The Court held that the post-trial plea was irrelevant as to the People's duties pursuant to Brady at the time of trial and before. If the information known to the People when this case was tried was "favorable to the accused" and "material" within the meaning of Brady, defendant had a due process right to obtain it, and that right could not be nullified by post-trial events.

Further, the Court ruled that this information that, complainant had accused a second man of rape, as she had defendant; that her encounter with this other man, like her encounter with defendant, took place in the accused man's home; and that, according to that man, the complainant willingly had sex with him and then lied about it, would have been admissible at the defendant's trial during the cross-examination of the complainant.

Finally, and most unusually, despite there not being the specific request for such information (that is almost always required to find Brady violations), the Court concluded that under the facts of the case (in which the jury acquitted on some of the counts) that it was a reasonable probability that the verdict would have been different if the information had been disclosed, and that the information, therefore, was material.

Cumulative Effect of Evidentiary Errors and Prosecutorial Misconduct Deprived Defendant of Fair Trial

What is rarer, reversal due to the admission of hearsay or reversal due to prosecutorial misconduct? How about reversal for unpreserved hearsay violations? Or reversal for unpreserved prosecutorial misconduct?

In People v Ballerstein 2008 NY Slip Op 05127 [4th Dept 6/6/08], a decision sure to be cited often, the Fourth Department held that, despite not being preserved for review, the cumulative effect of evidentiary errors and prosecutorial misconduct deprived the defendant of his right to a fair trial and required reversal. The Court explained "we are mindful of our overriding responsibility' to ensure that the cardinal right of a defendant to a fair trial' is respected in every instance" (People v Wlasiuk, 32 AD3d 674, 675, lv dismissed 7 NY3d 871, quoting People v Crimmins, 36 NY2d 230, 238).

Addressing first the cumulative effect of evidentiary errors, we agree with defendant that County Court erred in admitting hearsay, including excerpts from the victim's diary, testimony relating to the victim's menstruation, testimony from the ex-boyfriend of the victim's mother concerning a videotape that he never viewed, and testimony from various witnesses concerning the victim's allegations of sexual abuse. We note in particular that the court admitted in evidence the double hearsay testimony of the medical director of the Child Advocacy Center with respect to statements made by the victim to a nurse at the center when the medical director was not present, despite the fact that the court had granted defendant's motion in limine seeking to preclude that testimony. Moreover, all of the victim's statements made at the Child Advocacy Center were inadmissible because they were made during the course of a forensic examination and were not "relevant to diagnosis and treatment" [citations omitted]. The error in the admission of the victim's statements made at the Child Advocacy Center was compounded by the improper admission of the medical director's opinion testimony concerning the credibility of the victim's statements. The opinion testimony of the medical director improperly intruded upon the function of the jury to determine whether to credit the victim's statements (see People v Eberle, 265 AD2d 881, 882)...
With respect to the contention of defendant that he was denied a fair trial by prosecutorial misconduct, we agree with defendant that the prosecutor improperly appealed to the jurors' sympathies in his opening statement (see People v Brown, 26 AD3d 392, 393). In addition, he improperly vouched for the credibility of the victim (see id.; People v George, 249 AD2d 488, lv denied 92 NY2d 879), and he engaged in misconduct by commenting on the credibility of an individual whom he did not intend to call as a witness. Further, throughout the trial, the prosecutor asked leading questions that circumvented unfavorable rulings of the court and introduced evidence that the court had precluded him from presenting. Finally, in his closing statement, the prosecutor made several "irrelevant comments which [had] no bearing on any legitimate issue in the case" (People v Ashwal, 39 NY2d 105, 109) and, in stating that "[p]rosecutors seek justice and juries deliver it in cases such as these," he "exceed[ed] the bounds of legitimate advocacy" (People v Melendez, 11 AD3d 983, 984, lv denied 4 NY3d 888; see People v Benedetto, 294 AD2d 958, 959). Furthermore, the prosecutor impermissibly warned the jury not to "fall into the same trap the Department of Social Services has fallen into," whereby the victim "got lost in the system." "Such appeals to emotion tend to deflect the jurors' attention from issues of fact on the question of guilt or innocence" (People v Bowie, 200 AD2d 511, 513, lv denied 83 NY2d 869), and cause them instead to focus on protecting the victim and correcting an alleged error in the child protective system (see generally People v Ivey, 83 AD2d 788, 789). We can only conclude herein that the prosecutor's "inflammatory [comments had] a decided tendency to prejudice the jury against the defendant" (Ashwal, 39 NY2d at 110; see People v Carter, 31 AD3d 1167, 1169; People v Almethoky, 9 AD3d 882).

Another big win for Mary Davison.

Forfeiting Peremptory Challenges Used in a Discriminatory Manner is a Permissible Remedy for Batson Violations

The Court of Appeals, in People v Luciano, 2008 NY Slip Op 04898 [6/3/08] has held that forfeiture or permeptory challenges is a permissible remedy for attorneys who exercise peremtory challenges in violation of the constitiuion under Batson v Kentucky, 476 US 79 [1986] and its progeny. However, the Court noted

that the free exercise of peremptory challenges is a venerable trial tool that should be denied only in rare circumstances. In fashioning the proper remedy, a trial judge may consider, among other factors, whether the challenged juror is available to be reseated, whether the litigant appears to be engaging in a pattern of discrimination, and the number of peremptory challenges that remain to be exercised. While even a single instance of discriminatory conduct may warrant forfeiture, where the finding of discrimination is close, forfeiture may not be an appropriate remedy (citations omitted).

In Luciano the trial court's ruling that cousnel has forfeited permentory challenges was error and the defendat was entitled to a new trial

because the trial judge was under a misapprehension that the law required forfeiture and failed to exercise the requisite discretion. As the court stated, "The law is that if you exercise the strikes and you determine them to [have been made] on a[] discriminatory basis, you forfeit those rights." As a result, defense counsel exhausted his peremptory challenges before the completion of jury selection. This is reversible error, entitling defendant to a new trial. In so holding, we reach no conclusion as to whether there was indeed a Batson violation or whether forfeiture would have been a proper remedy had discretion been exercised.

Taking Keys to Car is a Seizure Even if Car Isn't Searched

In People v Colligan, 2008 NY Slip Op 05133 [4th Dept 6/6/2008] the Court held that it was error to deny a suppression motion where, prior to the issuance of a warrant to search a car, the police took the keys to the car from the defendant and sat out with the automobile. Since the hearing record did not show that probable cause existed as such time, this was unlawful in that

[a]lthough they did not search the automobile until the search warrant had been obtained, "there is no lesser invasion in the detention or holding of an automobile while a warrant [is] obtained than in an immediate entry of an automobile to search for contraband or evidence" (People v Singleteary, 35 NY2d 528, 533; see People v Brosnan, 32 NY2d 254, 259-260).

Murder Conviction Reversed Because of Discovery Violations

In People v Davis , 2008 NY Slip Op 05131 the Fourth Department reversed a murder conviction because it found that the prosecutor's repeated discovery violations and the court's denial of a brief adjournment to allow the defendant to review the materials when eventually provide prejudiced the defendant.

Here, despite defendant's demand therefor, the People failed until the day of jury election to disclose, inter alia,a 12-page firearm analysis with photographs from the Monroe County Public Safety Laboratory. The court denied defendant's request for a 48-hour adjournment to review the analysis and photographs.Following the testimony of the People's first witness, the prosecutor provided defense counsel with a report concerning blood recovered from the clothing of defendant and the victim. The court denied defendant's request for an adjournment for the remainder of the afternoon to review the report. On the second day of trial, the prosecutor disclosed to defendant a report from the Medical Examiner concerning blood collected the day after the victim's death. Defendant moved for a mistrial based on the late disclosure of evidence and, although the court referred to the conduct of the People as "very disturbing," it reserved decision on the motion. The following day, the court permitted the People to introduce five undisclosed autopsy photographs of the victim depicting the gunshot wounds to his body....We conclude under the circumstances of this case that the People's conduct resulted in substantial prejudice to defendant. Here, as noted, defendant presented a justification defense (see Penal Law § 35.15 [2] [a]), and we conclude that the autopsy photographs exhibiting gunshot entry points and trajectories, the firearm analysis, and the analysis of blood discovered on the clothing of defendant and the victim may have been relevant to demonstrate the distance from which the bullets were fired as well as their trajectory. Furthermore, the scientific evidence requested by defendant could have been used "to determine whether further inquiry would possibly lead to information favorable to defendant's case" (People v DaGata, 86 NY2d 40, 45). Although the "potential prejudice arising from noncompliance with the continuing duty of disclosure under CPL 240.20 could [have been] cured by the granting of a continuance" (People v Eleby, 137 AD2d 708, 709), here the court denied defendant's requests for even brief adjournments.

New York State Ignores All Four Appellate Divisions

I previously reported that the Appellate Division, Fourt Department, in People of State of New York ex rel. Lucas Foote v Piscotti, held that persons charged with violating the terms of post release supervision not imposed by judges are entitled to immediate release. In fact, the other three Appellate Divisions have all issued similar decisions (People ex rel Lewis Ward, __ AD3d __, 2008 WL 2051102 [1st Dept 5/1/08]; People ex rel Gerard v Kralik, 2008 NY Slip Op 04895 [2nd Dept 5/27/08]; Prendergast v NYS Dept of Corrections, __ AD3d __, 2008 WL 1902192 [3d Dept 5/1/08]).

Seems pretty clear. So what has our State done with the hundreds of persons currently being incarcerated in New York state based on violations of PRS not imposed by judges? They have sent memos to the judges about how they can get them re-sentenced, and have written to the inmates telling them they will be subject to re-sentencing, but have taken no steps to release these people being held without any valid commitment order or to inform them that they are being illegally detained and are entitled to release forthwith. The Attorney General has taken the position that even when the commitment do not show any judicially imposed sentence of PRS and when the only PRS was illegally imposed by DOCS the person should be held in custody because the commitment order may be incorrect.

Phrased differently, the Attorney General, without citing any authority, argues that, rather than being bound by the terms of commitment orders, DOCS is free to ignore them since they may be incorrect (sort of a presumption of irregularity). And the argument is that, based on this possibility, the person can be detained despite the absence of any commitment order justifying continued custody. In a different context, the Fourth Department held in People v Williams, 191 AD2d 989 [4th Dept 1993] “The police are not at liberty to arrest and hold a suspect while they search for evidence sufficient to justify their action [citations omitted].”

Our Government is Incarcerating Many People Without Any Lawful Authority

The Executive branch of our government is knowingly incarcerating many people whom it knows it has no legal authority to incarcerate. It appears to be our government's policy that, although it is unlawful to incarcerate these individuals, the government will continue to keep them in custody unless and until each affected individual wins a habeas corpus proceeding resulting in a court order for his release. Nor has our government even notified the affected individuals that they are being held unlawfully. Such illegal incarcerations predicated on a wholesale disregard for the law by our government undermines the very authority of our government to expect people to follow its laws. It ought to be offensive to those who expect our government to be one of law. It also risks civil damages for illegal imprisonment based on this unlawful incarceration.

No, I am not referring to the Bush administration and Guantanamo. Rather, I am addressing the fact that a month after the New York Court of Appeals has expressly held that sentence of post release supervision [PRS]not imposed by judges are void and a week after the Appellate Division, Fourth Department held that consequently a person in custody for violating the terms of PRS not imposed by a judge is entitle to be discharged "from custody forthwith" neither the New York State Division of Parole nor the New York State Department of Corrections has taken steps to discharge from custody the many people currently incarcerated for violating the terms of PRS not imposed by a judge. Rather, all that New York is doing with respect to these unlawfully incarcerated individuals is taking steps to have them lawfully sentenced to PRS by judges. But, of course, even after these people are lawfully sentenced to PRS they cannot be lawfully incarcerated for conduct which predates the imposition by a judge of a sentence of PRS. So, these people are all entitled to immediate release. Yet, absent any lawful sentence or authority, New York continues to keep these people locked up.

If you are offended by our government's wholesale disregard of its laws, you might want to write to Brian Fischer, Commissioner, NYS Department of Correctional Services, Building 2,1220 Washington Ave, Albany, New York 12226-2050 and to George P. Alexander, Commissioner of the NYS Division of Parole,97 Central Avenue, Albany, NY 12206 urging that they follow the law and work to insure the immediate release of persons held in New York prisons for violating the terms of PRS which were not imposed by a judge.