The Indignant Indigent Returns

After a restful summer, the Indignant Indigent returns. The Appellate Division, Fourth Department will release new decisions on October 2nd and 9th, and readers can expect new content and analysis that day and on the days in between.

In the mean time, please read this excellent blog post by Donald Thompson of Easton, Thompson, Kasparek & Shiffrin in Rochester, New York. Thompson argues that a defendant has a right to testify before a grand jury that has not voted to indict him (even after the case has been certified) so long as the defendant requests the right to testify before the indictment is filed.

False Confessions Discussed on the Oprah Winfrey Show

Yesterday, Oprah Winfrey did an entire one hour show on the subject of false confessions. An article describing one of the false confessions can be found here. The website contains other information and interviews relevant to the topic, including video of a police interrogation of the then-14 year old Michael Crowe, a boy falsely accused of stabbing his 12-year-old sister. Part 1 of Oprah's interview with a young man who falsely confessed to killing his parents can be found here.

More Coverage of Judge's Approval of Taser Use to Procure DNA Sample

The Simple Justice Blog has a copy of Judge Sperrazza's decision in the DNA/Taser case.

Plus, the Niagara Gazette has further coverage of the Niagara County Judge's ruling which permitted the police to use a taser to compel a defendant to give a DNA sample.

Supreme Court Decides that Due Process Requires Recusal in Muli-Million Dollar Campaign Donation Case

Back in March, the Indignant Indigent wrote about a case coming up before the Supreme Court in which the justices would be faced with the question of whether a judge who had received a multi-million dollar campaign contribution from a litigant should recuse himself from a case brought by that litigant/donor. Yesterday, the Supreme Court decided the case and, in a 5-4 decision, determined that due process requires recusal given all the circumstances of the case.

SCOTUSblog wrote an excellent summary of the decision that is available here.

Failure to Move Against Search Warrant Not Ineffective Assistance of Counsel

In People v. Rockel Francis, the defendant was charged with the A-II felony Criminal Possession of a Controlled Substance in the Second Degree. The government's whole case, of course, was the drugs in Mr. Francis' possession. On appeal, the defendant argued that his trial attorney was ineffective for failing to challenge the search warrant permitting a search of his residence. The Fourth Department concluded that the search warrant described an ongoing drug operation, thus establishing the validity of the warrant. The court stated:

"There can be no denial of effective assistance of . . . counsel arising from [defense] counsel's failure to make a motion or argument that has little or no chance of success (People v Caban, 5 NY3d 143, 152, quoting People v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702)".

The opinion does not state three facts critical to the determination of whether a suppression motion would have been successful. What is present and undisputed in the defedant and government briefs to the court, is that the "ongoing drug operation" (a) was only known to be 17 days old, (b) the confidential informant (himself charged with cocaine possession and facing up to 25 years in jail) had only successfully bought cocaine from the location once, and (c) the day before the warrant was signed, the alleged dealer had told the informant that he did not have any cocaine and was therefore unable to complete a sale.

Speeding Driver Acted With Depraved Indifference

In People v. Michael Prindle, the defendant was driving his car at a high rate of speed (unspecified in the decision) on city streets and often drove in the opposing lane of traffic in an attempt to escape police pursuit. He was convicted of depraved indifference murder when his car struck another and killed an occupant. The Fourth Department determined that there was sufficient evidence of depraved indifference murder and affirmed the conviction. In so holding, the court said:

"Here, the evidence presented at trial established that, while attempting to escape from the police, defendant drove a van at a high rate of speed on city streets on a weekend afternoon, often traveling in the opposing lane of traffic. We thus conclude that the evidence establishes that defendant acted with depraved indifference, i.e., "a wanton indifference to human life or depravity of mind" (People v Gomez, 65 NY2d 9, 11; see People v Gonzalez, 288 AD2d 321, lv denied 97 NY2d 754; People v Williams, 184 AD2d 437, lv denied 80 NY2d 935)."

There are two interesting elements to this decision. First, the decision does not state whether Mr. Prindle killed the victim while driving in the opposing lane of traffic. Generally, just driving in the opposing lane of traffic does not evince unusual brutality, wickedness, or evil, mostly because it appears Mr. Prindle was hoping to avoid oncoming traffic and escape the police. Moreover, if he did not kill the victim while doing so, there is no causal link between the action and the result. A second, interrelated, point of interest is that the Fourth Department did not cite to Feingold or Jean-Baptiste in support of its conclusion that the defendant acted with depravity. Of course, since Register was overruled, depravity is no longer a factual circumstance (i.e. driving in the opposing lane of traffic), but rather it is a mental state. The court did not analyze how Mr. Prindle's actions evinced unusual brutality, wickedness, or evil in light of Mr. Prindle's obvious goal of evading the police. This quote from Suarez, is instructive on that point:

"Reckless homicide cannot be elevated into depraved indifference murder merely because the actions of the defendant created a risk of death, however grave or substantial that risk may have been. Otherwise, manslaughter in the second degree would routinely and automatically become depraved indifference murder inasmuch as the victim (who was, after all, killed) was necessarily exposed to a grave or substantial risk of death. The critical statutory language that separates second-degree manslaughter from depraved indifference murder is the defendant’s underlying depraved indifference. Circumstances evincing a depraved indifference to human life are not established by recklessness coupled only with actions that carry even an inevitable risk of death. "

(People v. Suarez, 6 NY3d 202, 213-214 [italics in original).

Taser Use Approved to Procure DNA Sample

The Buffalo News reports that Niagara County Court Judge Sara Sheldon Sperrazza ruled this week that it is permissible for the police to use a taser (administering a 50,000 volt electric shock) to procure a DNA sample from a suspect.

The court first ordered the defendant to provide an oral swab, which the defendant voluntarily agreed to do. However, the government sent the DNA sample to the wrong lab for analysis, and the sample was spoiled as a result. The government then gained a ex parte order for a second oral swab and sought the defendant's compliance in gaining the second DNA sample. When the defendant refused to comply at the jail, the police handcuffed the suspect, placed him on the ground, and administered the 50,000 volt shock. After he was Tasered and agreed to the give the sample, the police charged him with contempt of court for his refusal to comply with a lawful court order.

The judge refused to suppress the DNA sample and ruled that the police used a reasonable amount of force to carry out a lawful court order.

The Indignant Indigent will provide further updates on this case as it winds its way through the courts.

New York Times Coverage of Forensic Sciences

This week, The New York Times is running a series of articles regarding the ability of certain forensic sciences to make accurate conclusions. The Indignant Indigent has written in the past about two forensic sciences that are very important to criminal investigations, but often produce faulty or skewed results.

First, the Indignant Indigent has reported on the growing tide of skepticism regarding the field of firearm and toolmark identification. The New York Times covers the subject here. The article includes remarks from various scientists who conclude that firearm and toolmark examination has not been properly supported by independent scientific research and who further conclude that the field is lacking in statistical support for its most basic claims.

Second, the Indignant Indigent has reported on the various techniques used by law enforcement to extract confessions from criminal suspects (commonly known as the "Reid Technique"). The New York Times reports on new studies which call into question some of the Reid Techniques' basic assumptions. The article is available here.

The articles also contain an internet podcast of a discussion between experts in various forensic sciences.

Court of Appeals Refuses to Vacate Sentence After Catu Violation

In People v. Paul Boyd, the defendant pleaded guilty and only afterward was informed that post-release supervision ["PRS"] was "mandatory". Mr. Boyd was not informed of the required length of the PRS. Later, at sentencing, the judge altogether forgot to impose PRS. On appeal, the defendant sought to withdraw his plea under People v. Catu and People v. Louree.

One might expect an immediate reversal since this case appears to squarely fit within Catu's and Louree's framework. However, if anyone thought that, he would be wrong. In Boyd, the court analyzed the potential impact of Sparber and Garner on future Catu claims, questioned whether Penal Law § 70.85 was constitutional, and ultimately denied the requested relief, ordering the case for return to Supreme Court for litigation of the 70.85. The court said:

"This corrective action [vacatur of the plea] should not be entertained at this time because the constitutionality of this new provision and its applicability to this case have not been sufficiently developed for our review. Although a dissenting colleague believes that Penal Law § 70.85 is unconstitutional as applied to this case (see Pigott, J., dissenting op at 4), we recognize that the issue of whether the deficiency in the plea allocution can be rectified by granting defendant specific performance of the plea agreement—a determinate sentence without imposing a term of PRS—should be determined by Supreme Court in the first instance"

This is an interesting outcome given the fact that Catu is less than five years old and given the fact that the defendant never requested any relief under Sparber (i.e. re-sentencing). The court did not overrule Catu, but it clearly refused to apply the case when faced nearly identical circumstances. Judge Pigott recognized this anomaly in dissent and stated:

"our holdings in Catu and Van Deusen and more recently in Hill make clear that a defendant is entitled to vacatur of his plea when the court commits a Catu error. Although I dissented in Hill, we are bound by this recent precedent. "

Penal Law 70.85, designed to permit re-sentencing of almost every PRS mis-step, has thrown a monkey-wrench into the Court of Appeals' jurisprudence. Specifically, troublesome to the court is that portion of the statute which permits the court to impose a sentence that does not include PRS if the district attorney supports such a result. The court recognized that ultimately, the defendant's sentence could be one that does not include PRS, assuming the government agreed (as it appeared likely to do). Although neither the defendant nor the government sought re-setencing under this provision (or for any other reason), the court reversed and remanded "to give the People the opportunity to litigate their argument regarding the applicability of Penal Law § 70.85 and for defendant to assert any constitutional challenges to the operation of the statute".

It seems safe to say that the Court of Appeals is willing to hear constitutional challenges to the statute. Any takers?

Sentence Vacated For Failure to Conduct Outley Hearing

In People v. Daniel Davis, the defendant pleaded guilty and was given the standard warning that if he was re-arrested before his return for sentencing, his sentencing promise of probation would disappear in favor of a possible one year term of incarceration. Sure enough, the defendant was re-arrested before sentencing. The court imposed the one year sentence and refused defense counsel's request to "controvert the legality or reasonableness of the arrest". The Fourth Department vacated the sentence and returned the matter for an Outley hearing by stating in relevant part:

"Where, as here, 'an issue is raised concerning the validity of the post-plea charge or there is a denial of any involvement in the underlying crime, the court must conduct an inquiry at which the defendant has an opportunity to show that the arrest is without foundation' (Outley, 80 NY2d at 713). The mere fact that defendant was arrested, without more, is insufficient to justify an enhanced sentence based on a post-plea arrest (id.)"

Single Instance of Ineffectiveness Results in Reversal

A single instance of ineffectiveness on the part of trial counsel will result in reversal in only a limited number of circumstances. Defining what type of single error should result in reversal is an issue that appears to be still unresolved. For example, in People v. Turner (5 NY3d 476 [2005]), one of the more recent treatments of the subject, the Court of Appeals held that an attorney's failure to raise a valid statute of limitations defense constituted a single egregious instance of ineffectiveness. By contrast, in People v. Hobot (84 NY 2d 1020 [1995]), the court ruled that defense counsel’s single error in failing to review a medical document important to the impeachment of a prosecution witness did not rise to the level of a single instance of ineffectiveness required for reversal (see also, People v. Flores, 84 NY 2d 184 [1994]). After Turner, it remains unclear whether mathematical certainty of success is required to win on the "single egregious error" theory of ineffectiveness or whether some lesser quantum of likely success is required.

Although Turner would seem to suggest that mathematical certainty of success is required, the Fourth Department's decision in People v. Spartacus Brown suggests otherwise. In Brown, the Fourth Department reversed for a single instance of ineffectiveness when, in a prosecution for sexual abuse in the first degree, "defense counsel[] fail[ed] to object to the admission in evidence of the victim's medical records, which contained information concerning prior allegations of sexual abuse against defendant". This decision is, perhaps, further evidence that the Court of Appeals should clarify its application of the "single egregious error" theory.

Rape in the First Degree Deemed Inclusory Concurrent Count

In People v. Henry Scott, the Fourth Department reversed a conviction for Rape in the First Degree on the grounds that it was an inclusory concurrent count of Predatory Sexual Assault Against a Child. The Court explained that:

"the predatory sexual assault count charged rape in the first degree as one of its elements and, as charged in the indictment, the elements of the predatory sexual assault with respect to rape in the first degree are precisely those required for rape in the first degree under Penal Law § 130.35 (4). Thus, it was impossible for defendant to commit predatory sexual assault against a child without, by the same conduct, committing rape in the first degree..."

New Link Regarding Challenges to Firearm Examiner's Testimony

The Indignant Indigent has added two news link to the "Resources" toolbar at the right entitled "Challenging Firearms Examiners" (two parts). The links lead to two articles by Professor Adina Schwartz of the John Jay College of Criminal Justice that appeared last year in the New York State Defender's Association publication, The Champion. In the articles, Professor Schwartz points out the weaknesses inherent to any firearms examiner's testimony and provides scientific evidence to support the position that no firearms examiner can reliably testify that he has found the one-and-only weapon that discharged a particular bullet or shell casing. The articles should be required reading for any attorney before cross-examining a firearms expert. You can also find the articles here and here.

It should also be known that three recent federal cases highlight the problems inherent in firearms identification and suggest that such testimony is vulnerable to legal challenges despite its having been long accepted in evidence, often without much debate (see US v. Glynn, 578 F Supp 2d 567 [SDNY 2008]; US v Montiero, 407 F Supp 2d 351, 355 [Dist Mass 2006]; and US v Green, 405 F Supp 2d 104).

Rare Reversal for Prosecutorial Misconduct

On April 24, 2009, the Fourth Department took the rare step of reversing a conviction on the grounds of partially unpreserved instances of prosecutorial misconduct. In People v. Kevin R. Morrice, "the prosecutor asked the witness if she was 'getting anything in return for [her] cooperation of telling the truth,' and she responded '[n]ot at all.' In fact, that witness was an accomplice and had received transactional immunity in exchange for her testimony before the grand jury (see CPL 50.10 [1]; 190.40 [2]). The prosecutor had an obligation to correct the misstatement of that witness but failed to do so." Then, "he compounded his misconduct in failing to correct the misstatement by telling the jury during summation that the witness was 'getting nothing out of having testified in this case'."

Later, "[t]he prosecutor also engaged in misconduct when he [twice] questioned a police detective on direct examination with respect to defendant's invocation of the right to counsel."

To make matters worse, "[t]he prosecutor further engaged in misconduct when he asked a defense witness on cross-examination whether she had ever been arrested for a crime", and then scolded the witness for only answering regarding whether she had ever been convicted of a crime.

As if this was not enough, "[t]he prosecutor also engaged in misconduct when he questioned that witness concerning whether her boyfriend was currently incarcerated, and he exceeded the bounds of legitimate advocacy during summation by characterizing defendant as a liar (see People v Fiori, 262 AD2d 1081; People v Bonilla, 170 AD2d 945, lv denied 77 NY2d 904)."

The court noted that although reversal is not the desired remedy for prosecutorial misconduct, "it is nevertheless mandated when the conduct of the prosecutor has caused such substantial prejudice to the defendant that he [or she] has been denied due process of law".

More posts to come over the next two days.

Conviction Reversed for Two Miranda Violations

In People v. Patrick Bungo, the defendant was arrested by his parole officer for having violated the terms of an order of protection issued in favor of his ex-wife. The police locked Mr. Bungo in the backseat of a police car with two other officers and inquired regarding his alleged contact with the ex-wife. The next day, the same parole officer confronted Mr. Bungo in the local jail regarding the incident. On both occassions, the defendant made incriminating statements without having been given Miranda warnings.

In reversing Mr. Bungo's conviction on Miranda grounds, the Fourth Department ruled:

" The first statement was made by defendant after he had been arrested and was in custody but before he had received his Miranda warnings, and the statement was made in response to questions that were " likely to elicit an incriminating response' " (People v Wearen, 19 AD3d 1133, 1134, lv denied 5 NY3d 834; see People v Evans, 294 AD2d 918, 919, lv dismissed 98 NY2d 768; People v Rifkin, 289 AD2d 262, lv denied 97 NY2d 759). The second statement was made at the Monroe County jail, before any Miranda warnings had been administered. The record establishes that it also was the result of custodial interrogation inasmuch as it "involve[d] the kind of inherently coercive atmosphere with which Miranda was most concerned" (People v Alls, 83 NY2d 94, 99, cert denied 511 US 1090; see People v Vila, 208 AD2d 781, lv denied 85 NY2d 867; People v Connor, 157 AD2d 739, lv denied 76 NY2d 732)."

Not an Abuse of Discretion to Deny Request for Adjournment

In People v. James Comfort, the Fourth Department affirmed the defendant's conviction and rejected his claim that he was denied due process and his right to a fair trial following the trial court's repeated denial of requests for adjournments. The Fourth Department noted that:

"The court granted defendant's "demand[]" for a new attorney approximately two weeks before trial was scheduled to commence, and defense counsel accepted the assignment with knowledge of the time constraints. We thus conclude that the court did not abuse its discretion in refusing to grant the requested adjournments (see People v Arroyave, 49 NY2d 264, 272; People v Povio, 284 AD2d 1011, lv denied 96 NY2d 923)."

The court's decision raises an interesting (and possibly leave-worthy) issue of whether the Fourth Department can properly analyze such a request, couched in due process terms, under the "abuse of discretion" standard. In People v. Foy (32 NY 2d 473 [1973]), the Court of Appeals stated that

“recent decisions of this Court reflect a more liberal policy in favor of granting a short adjournment... when the delay is requested in order to insure [sic] a fundamental right”.

There appears to be some dispute, even in other departments, over how or when this limitation on typically broad judicial discretion should apply.

Insufficent Evidence of Filing a False Instrument

In People v. Alexis Oberlander, the Fourth Department determined that there was legally insufficient evidence of filing a false instrument in the first degree. The government's allegation was that Ms. Oberlander defrauded county welfare services by failing to note on her application for DSS that she shared her home with another adult. The court noted that:

"Two prosecution witnesses who were frequent visitors at defendant's residence, including one who stayed at defendant's residence for a few months, testified that Banks lived at defendant's residence, and defendant's landlord testified that he believed that Banks lived at the residence. The basis for the testimony of those prosecution witnesses, however, was only that they often observed Banks at defendant's residence. The People failed to present other evidence to support the conclusion of those witnesses that Banks lived at defendant's residence, e.g., evidence that Banks received his mail at the residence, performed household chores, or paid household bills (cf. People v Hure, 16 AD3d 774, 775, lv denied 4 NY3d 854; Stumbrice, 194 AD2d at 933). "

The court further noted that the defendant's evidence contradicted the government's position:

"although Banks was often at her residence and slept there 2 to 3 nights per week, he did not live there and spent the remainder of the time at another woman's home or at the homes of his family members. Three other defense witnesses who were often at defendant's residence testified that Banks was frequently at the residence but that they did not observe any of his personal effects there, nor did they have any knowledge that he lived there. A fourth defense witness testified that she rarely saw Banks at defendant's residence and had no knowledge that he lived with defendant."

The court also reversed and granted a new trial on the one remaining count on the grounds that the trial court refused to grant a short adjournment to accommodate a defense witness.

Judge's Promise of Harsher Sentence After Trial Coerced Plea

In People v. Gunther Flinn, the defendant pleaded guilty to attempted murder in the second degree. During his plea, the judge said that if Mr. Flinn was convicted after trial, he would a be treated "very differently as far as the sentence is concerned" if he exercised his right to a trial and that his sentence after trial would be "nothing like the sentence that [he] would get if [he] stood up and accepted [his] responsibility." The judge further said that after trial Mr. Flinn would be sentenced to "substantially longer than" the sentence he would receive after a plea.

Although Mr. Flinn did not seek to withdraw his plea before the lower court, the Fourth Department addressed the issue of his entitlement to withdrawal in the interests of justice and vacated the plea by stating:

"the court's statements do not amount to a description of the range of the potential sentences but, rather, they constitute impermissible coercion, "rendering the plea involuntary and requiring its vacatur" (People v Fanini, 222 AD2d 1111; see People v Stevens, 298 AD2d 267, 268, lv dismissed 99 NY2d 585; People v Wilson, 245 AD2d 161, 163, lv denied 91 NY2d 946)."

New Link Regarding DOJ Standards for Eyewitness Identification Procedures

The Indignant Indigent has added a new link in the "Resources" tool bar to the right. The link is to the Department of Justice's 1999 guidebook for law enforcement on the use of pre-trial identification procedures. The 55 page publication proposes protocols for law enforcement when speaking to eyewitnesses. The publication implicitly and explicitly acknowledges that even subtly improper identification procedures can result in skewed eyewitness memory.

A Discussion On Fundamental Fairness

It is worth reading yesterday's oral argument at the Supreme Court in the case of Caperton v. AT Massey Coal Company. At issue is whether a West Virginia appellate court judge should have recused himself after having received $3 million in campaign contributions from one of the parties. The case involves an intricate discussion of basic concepts of fundamental fairness and the impact of the election process on outcomes in litigation. Moreover, the case was expertly argued by two exceptional attorneys, Theodore B. Olson and Andrew L. Frey.

Weight of the Evidence Win... Almost.

In People v. Jones, the Third Department took the rare action of reversing a conviction on the grounds that the jury's verdict was against the weight of the evidence. The appellate court determined that the government failed to disprove the defendant's claim of justification. The court said:

"no evidence was presented to counter defendant's and Walker's testimony that Lamphear was the initial aggressor in this attack. In addition, it is uncontroverted that before defendant ever took out the knife, Lamphear had not only repeatedly threatened him, but physically assaulted him and Walker with his fist, and then attacked defendant with a wooden board striking him so hard that he fractured defendant's arm. Moreover, there is no evidence to support the conclusion that defendant had it in his power to retreat before being attacked by Lamphear and prior to his being struck repeatedly with the board. There is also no question that defendant struck Lamphear only once with the knife and that this occurred as defendant was fending off Lamphear's attack and attempting to safely leave the scene (see People v Richardson, 55 AD3d at 935; Matter of Ismael S., 213 AD2d at 169)."

Note the discussion of the defendant's lawful use of the knife. Be sure to read the very last paragraph where it is revealed that the appellate attorney failed to raise any issue arguing that the defendant's use of the knife was not unlawful. The appellate division did not reverse the weapons possession charge because:

"while the mere possession of a pocket knife is not a crime and is only transformed into criminal conduct upon a showing that the weapon was possessed "with intent to use the same unlawfully against another" (Penal Law § 265.01 [2]), we note that defendant has failed to present any specific arguments on this appeal challenging his conviction for criminal possession of a weapon in the fourth degree."

Third Department: Insufficient Evidence of Intent to Sell Heroin

In People v. McCoy, decided February 26th, the Third Department determined that there was insufficient evidence that the defendant possessed heroin with the intent to sell it. The court said:

"the People presented no direct proof that defendant sold or attempted to sell heroin to any individual. [Officer] Gaulin did not testify to observing such a transaction, nor did [Eyewitness] David. And, notably, although David testified that she had observed a male standing outside the door for about half an hour and that she saw him speak to several people whom she described as behaving nervously, she was not able to describe the man at trial not even his race and she was unable to identify defendant as the man in question."

The court went on to say that intent to sell could not even be inferred from the circumstances presented at trial:

"Nor is there legally sufficient evidence from which to infer defendant's intent to sell heroin. At the time of his arrest, defendant was carrying no cash beyond a few coins (see People v Jones, 47 AD3d 961, 964 [2008], lvs denied 10 NY3d 808, 812 [2008]; People v Mendoza, 5 AD3d 810, 813-814 [2004], lv denied 3 NY3d 644 [2004]). No evidence was presented that he possessed a weapon or any paraphernalia commonly associated with the sale of drugs (see People v Jones, 47 AD3d at 964; People v Hawkins, 45 AD3d 989, 991 [2007], lv denied 9 NY3d 1034 [2008]; People v Barton, 13 AD3d 721, 723 [2004], lv denied 5 NY3d 785 [2005]; People v Tarver, 292 AD2d 110, 114 [2002], lv denied 98 NY2d 702 [2002]). And, significantly, no testimony established that the small quantity of heroin found in his possession was inconsistent with personal use (see People v Patchen, 46 AD3d 1112, 1113 [2007], lv denied 10 NY3d 814 [2008]; People v Barton, 13 AD3d at 723; People v Tarver, 292 AD2d at 114)."

Court of Appeals Upholds Persistent Felony Offender Statute... Again

On February 24, in People v. Quinones, the Court of Appeals reaffirmed its previous holdings that the state's discretionary persistent felony offender [PFO] statute does not violate Apprendi v. New Jersey (530 US 466 [2000]). In Apprendi, the court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt" (Apprendi, 530 US at 490). New York has a two-step PFO statute, Penal Law 70.10, wherein the court must first determine whether the defendant had been previously convicted of two or more felonies. Then, the court must determine whether "the history and character of the defendant and the nature of the circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public" (70.10[2]). Although it would appear that the second prong authorizes a sentence enhancement made by a judge regarding facts other than those found by the trial jury, the Court of Appeals disagreed and held:

"Taking the foregoing into account, defendant's argument that the higher persistent felony offender range cannot be imposed without judicially-found facts regarding the "nature and circumstances" of defendant's criminal conduct and defendant's "history and character" misses the point. Unlike the sentencing schemes in Apprendi, Ring, Blakely, Booker and Cunningham, all of which effectively provided for judicial factfinding of an element(s) of an offense as a prerequisite to enhancing a sentence beyond the relevant sentencing range, the New York sentencing scheme, after a defendant is deemed eligible to be sentenced as a persistent felony offender, requires that the sentencing court make a qualitative judgment about, among other things, the defendant's criminal history and the circumstances surrounding a particular offense in order to determine whether an enhanced sentence, under the statutorily prescribed sentencing range, is warranted. Stated differently, New York's sentencing scheme, by requiring that sentencing courts consider defendant's "history and character" and the "nature and circumstances" of defendant's conduct in deciding where, within a range, to impose an enhanced sentence, sets the parameters for the performance of one of the sentencing court's most traditional and basic functions, i.e., the exercise of sentencing discretion."

The Supreme Court of the United States has denied cert following the two previous times the Court of Appeals upheld the statute (see People v. Rosen, 96 NY 2d 329 [2001], cert denied, 534 US 899 [2001]; People v. Rivera, 5 NY 3d 61 [2005], cert denied, 546 US 984 [2005]).

Mandatory Surcharge Not Part of a Defendant's "Sentence"

In People v. Guerrero, the defendant was sentenced without the judge ever having mentioned that he was required to pay the mandatory surcharges and fees that typically accompany a criminal conviction in New York State. At the Court of Appeals, he challenged whether the Court of Appeals' prior decision in People v. Sparber would permit collection of those fees when the judge's sentence did not include any mention of the surcharge and fee. In Sparber, the court ruled that the trial court must pronounce a sentence of post-release supervision in order for it to become part of a defendant's legal sentence (even if the term of PRS was otherwise required by statute).

The rule in Sparber does not apply in Guerrero, however, because:

"We now hold that the mandatory surcharge and crime victim assistance fee mandated by Penal Law § 60.35 (1) are not a part of a sentence within the meaning of sections 380.20 and 380.40 of the CPL; therefore, a judge need not pronounce them in a defendant's presence during sentencing".

The Court further explained:

"the statute's nomenclature reinforces its non-punitive nature: the assessments imposed by section 60.35 (1) are called a "surcharge" or a "fee," not a "penalty." Indeed, when first enacted in 1982, Penal Law § 60.35 was entitled "Mandatory penalty assessment required in certain cases" (emphasis added). The very next year, the Legislature changed every statutory reference to "penalty assessment" in Penal Law § 60.35 and CPL 420.35 to "mandatory surcharge" (see L 1983, ch 15, §§ 2 and 3 [emphasis added]). A "surcharge" is generally defined as "an additional tax, cost, or impost" (see Merriam-Webster's Collegiate Dictionary 1185 [10th ed 1996])."

This raises the question of whether a defendant can have his probation or parole revoked for failing to pay these fees since, as Guerrero explains, they are not penal in nature and are not intended to be punitive. (Special thanks to Second Assistant Public Defender Jill Paperno for bringing this case and its applicability in post-conviction proceedings to the Indignant Indigent's attention).

New Link Regarding Police Interrogation Practices

Please note that the Indignant Indigent has posted a new link in the "Resources" tool bar to the right. The new link is to the homepage of John E. Reid & Associates. John Reid is perhaps better known as the author of Criminal Interrogations and Confessions, the publication that serves as The Bible for police interrogations. The book is discussed at length in the landmark case of Miranda v. Arizona (384 US 436 [1966]), especially in footnote #9.

Professor Reid periodically updates his webpage with new tips for investigators. You can find the tips by looking under the "Educational Information" tab and selecting "Investigator Tip". Professor Reid explores such topics as "Are you a good listener?", "Electronically Recorded Confessions", and "Do you invite people to lie to you?". There are literally dozens of tips for interrogators on the webpage, all in searchable format. The Indignant Indigent believes Professor Reid's book and these tips should be required reading for any criminal practitioner litigating a confession case.

State Supreme Court Justice Resigns

A Supreme Court Justice in Buffalo resigned this past weekend for his involvement in a scheme to cover up a local attorney's DWI. The Buffalo News reported the judge's resignation together with the details of the attorney's and her doctor's attempts to cover up the DWI.

COA: Evidence Suppressed After Police Exceed Scope of Investigatory Detention

In People v. Ricky Ryan, the police learned that there had been an early-morning carjacking, and based upon the descriptions and circumstances, suspected Mr. Ryan. Five hours after the carjacking, the police approached Mr. Ryan, asked him to be seated in the backseat of a police car, photographed him, and held him while the victim of the car-jacking viewed the photo. The entire process took 13 minutes, and Mr. Ryan was never informed that he was free to leave or that he would be free to leave in the immediate future. The police further told Mr. Ryan that he was being held while the police were speaking to another potential witness. Mr. Ryan later confessed to the carjacking.

Judge Ciparick, writing for a unanimous court, reversed the conviction and stated in relevant part:

"Proper administration of the photo array did not require defendant's presence and, in fact, the police officer did not even know that the non-victim witness had become available to view the photo array when defendant's detention began. Nor were there any other exigencies that might have permitted holding defendant while the photo array was conducted (cf. People v Allen, 73 NY2d 378, 379-380 [1989]; People v Behrmann, 264 AD2d 682, 682 [1st Dept 1999]). Thus, the only permissible inference that can be drawn is that this detention was undertaken simply to make it convenient for the police to arrest defendant if a positive identification subsequently occurred (see People v Robinson, 282 AD2d 75, 81 [1st Dept 2001] ["What the police did here, as a practical matter, was to place defendant under arrest in order to obtain sufficient evidence to arrest him"]). Accordingly, we conclude that, on the facts present here, defendant's detention exceeded the scope permitted under Hicks and that the photographs obtained during that detention must be suppressed."

The court suppressed the photographs, but remanded the case for an attentuation hearing regarding Mr. Ryan's statements.

Fourth Deparment Splits on Whether Child-Victim's Testimony Was Corroborated

The defendant in People v. Shannon Kolupa appealed from his conviction for criminal sexual act in the first degree (Penal Law § 130.50 [3]) and attempted rape in the first degree(Penal Law 10.00, 130.35 [3]) on the grounds that the seven-year-old victim's testimony was not sufficiently corroborated. The Fourth Department disagreed and said:

"Contrary to defendant's contention, the unsworn testimony of the seven-year-old victim was sufficiently corroborated by evidence of defendant's opportunity, the testimony concerning defendant's statements to the police and the testimony of other witnesses (see generally People v Groff, 71 NY2d 101, 109-110). "Strict corroboration of every material element of the charged crime is not required, as the purpose of corroboration is to ensure the trustworthiness of the unsworn testimony rather than [to] prove the charge itself" (People v Petrie, 3 AD3d 665, 667; see Groff, 71 NY2d at 108-110)."

Two dissenters would have reversed for lack of corroboration and noted that:

"the two physicians who examined the victim testified that they found nothing of significance in their examination of the victim's genitals. Although the testimony concerning defendant's statements to the police established that defendant admitted that he exposed himself to the victim, there was no evidence that defendant admitted that he committed any other physical acts with respect to the victim. We thus conclude that defendant's testimony tended to prove only the material facts of the lesser crimes of which defendant was convicted, attempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65 [3]) and endangering the welfare of a child (§ 260.10 [1]), but failed to prove the material facts of the remaining crimes".

Reasonable View of Evidence That Defendant Took Title Under Claim of Right

In People v. Michael Baroody, the Fourth Department ruled that there was a reasonable view of the evidence that the defendant in this petit larceny prosecution took possession of the allegedly stolen items under a "claim of right". The facts supporting the charge were as follows:

"Defendant testified at trial that the owner of the auto shop had informed defendant that those tires had been "laying around [and] were not wanted."Defendant's testimony was supported by the testimony of a customer of the auto shop, who heard the owner tell defendant that items left at the shop for a period exceeding 30 days became the property of the auto shop, as well as by the testimony of State Police investigators to whom defendant related that he had been told by the owner of the auto shop that the tires were not wanted."

Second Department Dismisses Charges on 30.30 Grounds

In People v. Stephen Price, the Second Department dismissed an indictment for the class E felony of attempted disseminating indecent material to a minor in the first degree (see Penal Law §§ 235.22, 110.05[6]). The government commenced prosecution in February of 2006. While the case was pending, the Second Department decided People v Kozlow (31 AD3d 788, revd 8 NY3d 554), wherein the court determined under circumstances similar to Mr. Price's case that evidence of disseminating indecent material to a minor in the first degree was legally insufficient where the defendant's internet communications with an undercover police officer whom he believed to be a minor did not contain any visual sexual images. After Kozlow, the district attorney viewed Kozlow as an impediment to further prosecution and took no further action on Mr. Price's case, but never moved to dismiss the charges. In April of 2007, the Court of Appeals reversed the Kozlow decision, and the government finally arraigned Mr. Price in June of 2007, 16 months after it had filed the felony complaint. Supreme Court granted Mr. Price's 30.30 motion, and the appellate division affirmed by stating:

"we note that the prosecution never sought any continuance as referenced in CPL 30.30(4)(g). Moreover, while the examples of exceptional circumstances set forth in that section are not exclusive, the statute clearly contemplates situations in which a district attorney encounters difficulty in obtaining evidence or in otherwise preparing for trial in the particular case before the court (see generally People v Washington, 43 NY2d 772; People v Robinson, 47 AD3d 847; People v Williams, 244 AD2d 587). Furthermore, although the Penal Law excludes reasonable periods of delay caused by appeals which involve the particular defendant who is being prosecuted (see CPL 30.30[4][a]), it does not similarly provide for an exclusion of time during the pendency of an appeal in an unrelated matter which merely involves similar legal issues (see People v Cortes, 80 NY2d 201, 211-212). To find otherwise would be to permit the People to charge a defendant with a crime and then hold the matter open indefinitely on the ground that a potentially relevant issue in another case before a different court might influence the open matter. Such an approach finds no support either in the language of the statute or in the cases interpreting it, and is antithetical to the very purpose of the speedy trial rule itself. "

As an aside, Note that Mr. Kozlow was disbarred from practice as an attorney before his case even made it to the Appellate Division.

Be Careful What You Ask For...

United States v. Beltran, out of the Ninth Circuit, serves as an important cautionary tale for appellate practitioners. The defendant(s) were lucky enough to have received sentences five years less than the statutory minimum, only to have their appellate attorneys argue that the sentences were excessive. Its worth a read to see how, or if, the Ninth Circuit rescued the defendants from their attorneys' request.

Here's the best quote from the decision:

"[t]he odd posture of Jose's appeal brings to mind Oscar Wilde's oft-noted adage: 'When the gods wish to punish us, they answer our prayers'".

Reversal for Un-Mirandized Questioning

In People v. Phillip Flowers, the defendant was arrested for Criminal Possession of a Controlled Substance in the Third Degree (subdivision 12) while the police were executing a search warrant upon his home. Without any Miranda warnings, the arresting officer asked the defendant how much money cash he had in his pockets. The defendant replied that he had $600. The Fourth Department rejected the government's argument that the officer made the inquiry for "routine processing purposes". The court held that the question was designed to elicit incriminating information. It held in relevant part:

"we note that "the People may not rely on the pedigree exception if the question[], though facially appropriate, [is] likely to elicit incriminating admissions because of the circumstances of the particular case" (Rodney, 85 NY2d at 293; see Pennsylvania v Muniz, 496 US 582, 602 n 14). Here, the narcotics officer testified at the suppression hearing that he questioned defendant for the purpose of completing a form that was required in the event of "an arrest for narcotics" (emphasis added). Cash indisputably plays a significant role as circumstantial evidence in narcotics cases (see e.g. People v Sykes, 47 AD3d 501, lv denied 10 NY3d 817; People v Gadsden, 192 AD2d 1103, lv denied 82 NY2d 718; People v Orta, 184 AD2d 1052, 1054-1055), however, and we conclude that "an objective observer with the same knowledge concerning the suspect as the police had would conclude that the [question of the narcotics officer concerning the ownership of cash found in the kitchen during the execution of the search warrant] was reasonably likely to elicit [an incriminating] response" (People v Ferro, 63 NY2d 316, 319, cert denied 472 US 1007; see People v Marrow, 301 AD2d 673, 675-676)."

Defendant Failed to Demonstrate He Was Prejudiced by Poor Translation at Trial

In People v. Singleton, the defendant was charged with robbery and burglary in the first degree. The victim only spoke an East Indian dialect called Gujarati. The interpreters used for Mr. Singleton's trial were not able to properly translate the testimony into English. Although the appellate division did not recount the first two interpreters' errors in its decision, the facts are available in the appellant's brief (all briefs are on file at the appellate division library). For example, the interpreters made the following errors:

• speaking when the witness had said nothing;
  
• listening while the attorneys spoke but not interpreting for the witness;
• engaged in un-translated discussions with the witnesses;
• summarizing testimony rather than precisely translating.

Moreover, the each interpreter had only a crude grasp of English. For example, when explaining his abilities, the first interpreter said "It’s not to have to wait a long time so, you know, I can translate... Few words and then I will be able to start, continue to doing that." When the court asked the interpreter what language he was interpreting, the interpreter gave his name. The interpreter admitted that he may have made errors in translation during testimony, including some that were apparent from the record. The interpreters' performance seem to violate most established standards of ethics for interpreters. On this record, the appellate division held that:

"We conclude that the court did not err in refusing to strike the testimony of the victim in question based upon the alleged inaccuracies in the second interpreter's translation. Although defendant established that there were some errors in that translation, he failed to establish that he "was prejudiced by those errors" (People v Dat Pham, 283 AD2d 952, lv denied 96 NY2d 900; see People v Restivo, 226 AD2d 1106, 1107, lv denied 88 NY2d 883). In any event, the record establishes that any errors were corrected either through objections made by defense counsel that were sustained by the court, or through defense counsel's cross-examination of the victim using the third and fourth interpreters (see Restivo, 226 AD2d at 1107)."

This case presents an interesting contrast to People v. Romeo, discussed below, wherein the court concluded that it was "highly likely" that the defendant was prejudiced by an extraordinary delay in proceeding to trial. It would seem to be exceedingly difficult for any attorney not fluent in Gujarati to explain exactly how a client was prejudiced by a poor interpretation. The Indignant Indigent believes that it is good practice for defense attorneys who find themselves in such a situation to insist on the record that it is impossible to know what sorts of prejudice have accrued to the defendant (in addition to arguing whatever prejudice can be gleaned from the poor interpretation).

Copy and paste this post here to have it translated into Gujarati.

Murder Charge Dismissed on Speedy Trial Grounds

On February 11, 2009, the Court of Appeals decided People v. Anthony Romeo. In 1985, Mr. Romeo was linked via DNA evidence to a murder in Suffolk County. He was scheduled to turn himself in to police, but instead fled to Canada where he killed a Canadian constable. Mr. Romeo then returned to the United States where he was finally apprehended. Suffolk County officials took custody and indicted Mr. Romeo for the murder. In the meantime, Canadian officials also initiated proceedings and asked for extradition. The Suffolk County DA chose to defer prosecution. Mr. Romeo was returned to Canada over his many requests for arraignment on the Suffolk County charges. He was convicted in Canada, but Suffolk County never pursued its charges. Twelve years later, Mr. Romeo asked for the charges to be dismissed on speedy trial grounds.

The Court of Appeals analyzed the five Taranovich factors and agreed with the appellate division that Mr. Romeo's right to a speedy trial was violated (People v. Taranovich, 37 NY 2d 442). The five factors are:

"(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charges; (4) any extended period of pretrial incarceration; and (5) any impairment of defendant's defense (see Taranovich, 37 NY2d at 445)".

Naturally, the application of the factors is highly case-specific, and it is worth reading the court's analysis on this issue, especially some helpful citations regarding whether the delay was "extraordinary" as a matter of law. Most noteworthy, however, was its discussion of the fifth factor which generally asks whether the defendant was prejudiced by the delay. On this subject, the court held:

"Here, it is highly likely that the defense was "impaired" (see Hooey, 393 US at 374) by defendant's incarceration for many years in a foreign prison where it would have been difficult for him to participate in his own defense, confer with counsel and contact witnesses. Defendant claims that he had psychiatric problems and might have presented a defense based on a lack of criminal responsibility by reason of mental disease or defect. This type of defense would have required defendant to establish his mental incapacity at the time of the offense. The ability to do this was clearly hampered by his incarceration abroad. "

Court Must Explain Waiver of Right to Appeal

In People v. Farrow, the Fourth Department reaffirmed that a defendant cannot waive his right to have a waiver of the right to appeal explained on the record. Moreover, the court re-stated its position that the judge accepting the plea and waiver has an independent duty to ensure that the defendant understands the waiver. The court said:

"It cannot be gainsaid that it is the responsibility of the court to ensure that "a defendant's understanding of the terms and conditions of a plea agreement is evident on the face of the record" (Lopez, 6 NY3d at 256; see Callahan, 80 NY2d at 283). Defendant's purported waiver cannot relieve the court of its responsibility."

Rap Music and Consciousness of Guilt

In People v. Wallace, the defendant was convicted of murder in the second degree. At issue was whether the government could appropriately enter into evidence testimony that the defendant listened to the rap song "How I Could Just Kill a Man" (by Rage Against the Machine or Cypress Hill -- his favorite song) two or three times shortly after the murder occurred. The Fourth Department held that the evidence was permissible and, while noting the traditionally low value of consciousness of guilt evidence, held that:

"Here, the evidence presented at trial established that defendant played a cassette tape of his favorite rap song, entitled "How I Could Just Kill a Man," two or three times over the course of two five-minute car rides shortly after the homicide. The lyrics of the song describe a murder occurring under similar circumstances as those present in the instant case... The rap song here, however, was not admitted in evidence merely for the purpose of establishing that defendant generally enjoyed rap music. Instead, the People sought to shed light on the circumstances under which defendant listened to the song, and thus the rap song was properly admitted as evidence of defendant's consciousness of guilt".

You can find the lyrics of the song here. The Fourth Department did not describe what sets this particular rap song apart from any other rap song which generally glorifies violence. The song does not seem to describe a particularly unique MO.

As an aside, one must wonder whether we would have the same result if the defendant had listened to "How I Could Just Kill a Man" by Charlotte Sometimes.

Further Definition of Appropriate Notice Pursuant to People v. Sedlock

In an on-going effort to further define what constitutes a sufficiently narrow time-frame in an indictment for sex offenses (or other course-of-conduct crimes), the Fourth Department decided People v. Rodney Adams. In Adams, the court held that a two or three month time-frame was permissible by stating:

"the time frames set forth in the indictment, i.e., June 1, 2003 through September 30, 2003 and September 1, 2003 through November 25, 2003, were " sufficiently specific' in view of the nature of the offense and the age of the victim" (People v Dickens, 48 AD3d 1034, 1035, lv denied 10 NY3d 958)."

This hearkens back to to the language of People v. Sedlock which dismissed an indictment for failure to narrow an allegation that sexual misconduct took place over the course of seven months. Given the age (17) and normal intelligence of the victim, the allegations should have been more specific. In so holding, the Court of Appeals said:

"Exact dates for incidents that occurred years before were provided, yet the People failed to specify a more precise time frame for the conduct at issue, or to demonstrate that they were unable to do so. Under these circumstances, seven months cannot be deemed reasonable when weighed against the imperative notice rights of the defendant."

Note the language stating that the government failed to demonstrate it was unable to delineate a more narrow time frame. The Indignant Indigent believes that this is in invitation for defense practitioners to ask for a hearing anytime the government claims that it cannot more narrowly state the time frame of a given offense. This hearing would test the victim's capacity to remember dates and events surrounding the allegations and would give the court the opportunity to evaluate whether the victim has the capacity to more specifically delineate the allegations.

Does Consumption of Alcohol Before Driving Constitute Depravity?

On January 29, 2009, the Second Department decided People v. Valenica, a case with potentially great impact upon whether prosecutors can validly charge defendants with depraved indifference assaults (or homicides) when the defendant injures or kills another motorist while intoxicated.

On the date in question, Mr. Valenica drank alcohol at a friend's house and on his way home ended up driving his car northbound in the southbound lane at speeds in excess of 60 mph. After almost four miles, Valencia struck two other cars head-on causing serious injuries to the other passengers. His BAC was .21. The government charged Mr. Valencia with Assault in the First Degree (Penal Law 120.10[3][depraved indifference assault]).

At trial, the government argued that Mr. Valencia acted with depraved indifference by consuming large amounts of alcohol knowing that he would be driving later. Mr. Valencia argued that these facts did not constitute sufficient evidence of the mental state of depravity. The Second Department agreed and ruled:

"we find unpersuasive the prosecution's contention that the mens rea component of depraved indifference assault may be satisfied by considering the defendant's state of mind at a point much earlier in time than the accident, when the defendant allegedly made a conscious decision to consume an excessive amount of alcohol with the awareness that he subsequently would be operating a motor vehicle. Assuming arguendo that the evidence would support such a finding, and that such a state of mind would otherwise satisfy the culpable mental state of depraved indifference to human life, we conclude that the defendant's state of mind at the time he consumed the alcohol was too temporally remote from his operation of the vehicle to support a conviction for depraved indifference assault in this case".

There was one dissenter who argued that:

"While a defendant's mens rea is typically present at the time of the actus reus, the physical component of the crime (see e.g. People v Rosas, 8 NY3d 493, 499), the mens rea and actus reus in depraved indifference circumstances need not necessarily be simultaneous (see generally People v Kibbe, 35 NY2d 407; People v Galle, 77 NY2d 953 [criminally negligent homicide]). Therefore, viewing the evidence in the light most favorable to the People, as we must (see People v Contes, 60 NY2d 620, 624), the evidence presented at trial is legally sufficient to sustain the defendant's conviction of assault in the first degree based on depraved indifference to human life (see Penal Law § 120.10[3]). The evidence was sufficient to prove the defendant's culpable mental state at the time of his excessive drinking."

Given the presence of the dissenter, Indignant Indigent predicts this will not be the last we hear of Mr. Valencia.

Lastly, as a point of cultural interest, 60 Minutes produced a piece a few months ago on Nassau County District Attorney Kathleen Rice's push to charge all DWI-related deaths as depraved indifference murders. You can read Bob Simon's article here and also view the interview with Nassau County District Attorney Kathleen Rice. And if you've read this far, you should also take a look at Kathleen Rice's re-election homepage which, naturally, advances her position that DWI-related deaths are actually murders.

New Indignant Indigent Blogger

The Indignant Indigent blog is back online. Beginning immediately, Assistant Monroe County Public Defender David Abbatoy will take over blogging duties for this website. Mr. Abbatoy works in the Public Defender's Appeals Bureau and has briefed approximately 100 appellate cases, including cases before the Fourth Department and Court of Appeals. The Indignant Indigent will continue its focus on analysis of recent Fourth Department and Court of Appeals decisions, and will also begin to highlight notable decisions from the other appellate departments.

The site's former blogger, Brian Shiffrin, has become a member of the law firm of Easton, Thompson, Kasperek, and Shiffrin, and currently maintains the excellent "New York Criminal Defense Blog" available here.