Indignant Indigent

New Appellate Practice Blog by The Abbatoy Law Firm, PLLC

2011-07-26T14:50:00.003-04:00

Former Indignant Indigent blogger, David M. Abbatoy, Jr., Esq., has established The Abbatoy Law Firm, PLLC and concentrates his practice in New York appellate practice. The law firm's blog, The Update, can be found on the firm's website, www.abbatoy.com.

Feel free to contact David directly with any questions or comments (dma@abbatoy.com). Happy reading!

RocLaw

2011-02-10T17:19:00.000-05:00

Just a quick note here to let the readers of I.I. know that I have started a new blog, RocLaw, with a focus on civil and criminal practice in Rochester, New York. Now back to your regularly scheduled programming.

News Coverage of Persistent Felony Offender Decision

2010-04-01T10:43:00.003-04:00

The Second Circuit's decision yesterday in the persistent felony offender case is attracting much attention in the mainstream and legal media. Habeas Corpus Blog has a good roundup of the initial coverage.

Two Important Federal Decisions (PFO and IAC)

2010-03-31T14:33:00.005-04:00

For a variety of reasons, its been a while since the Indignant Indigent has posted. However, the Indignant Indigent just couldn't let the day go by without updating readers on two important federal decisions that will dramatically impact New York State criminal practice.

First, almost one year after the Court of Appeals last upheld New York's persistent felony offender statute, the Second Circuit has invalidated the statute. The 54 page decision can be found here. The Indignant Indigent's previous coverage of the issue can be found here and the Court of Appeals' most recent decision in Quinones can be found here. The most interesting part of the decision (as in any federal habe) is that the petitioners were only entitled to relief if the sentence was imposed in contravention of "clearly established" Supreme Court precedent. In theory at least, it raises the issue of whether New York defense attorneys should have raised the issue on behalf of their clients despite the fact that the Court of Appeals had decisively ruled on the subject. Naturally, an attorney is never required to make a frivolous motion, but is a motion frivolous if it is governed by "clearly established" precedent from the highest court in the land? That question is likely the next to be litigated.

And speaking of ineffective assistance of counsel, the Supreme Court ruled today that it is ineffective assistance of counsel for an attorney to advise her client regarding the immigration consequences of a plea. The Indignant Indigent maintains that it should be a standard part of any defense attorney's practice to ask every client at intake one simple question: "Where were you born?". Sometimes the answers are surprising and the answer to this question can help the attorney avoid a malpractice suit and help the client avoid deportation to Liberia, for example. (Note: the Indignant Indigent suggests "where were you born?" instead of "are you a citizen?" because some clients do not know, or are unwilling to reveal, their actual immigration status).

The Indignant Indigent Returns

2009-09-16T09:32:00.002-04:00

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

2009-06-09T15:32:00.002-04:00

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

2009-06-09T12:19:00.003-04:00

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

2009-06-09T11:28:00.005-04:00

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

2009-06-05T15:20:00.010-04:00

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

2009-06-05T15:19:00.009-04:00

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

2009-06-04T10:20:00.006-04:00

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

2009-05-12T10:58:00.006-04:00

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

2009-05-11T16:04:00.007-04:00

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

2009-05-11T15:39:00.002-04:00

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

2009-04-30T15:16:00.009-04:00

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

2009-04-30T12:04:00.004-04:00

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

2009-04-29T16:39:00.005-04:00

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

2009-04-29T16:17:00.005-04:00

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

2009-03-27T16:32:00.002-04:00

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

2009-03-20T17:09:00.016-04:00

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

2009-03-20T17:09:00.013-04:00

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

2009-03-20T16:57:00.003-04:00

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

2009-03-06T11:16:00.005-05:00

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

2009-03-04T12:03:00.002-05:00

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.

2009-02-27T12:34:00.004-05:00

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

2009-02-26T16:48:00.004-05:00

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

2009-02-25T12:10:00.009-05:00

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"

2009-02-25T12:09:00.006-05:00

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

2009-02-23T15:57:00.006-05:00

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

2009-02-23T15:39:00.003-05:00

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

2009-02-17T09:37:00.007-05:00

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

2009-02-17T09:36:00.020-05:00

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

2009-02-17T09:36:00.019-05:00

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

2009-02-17T09:36:00.018-05:00

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...

2009-02-12T17:32:00.004-05:00

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

2009-02-12T16:31:00.006-05:00

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

2009-02-12T15:03:00.011-05:00

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

2009-02-12T14:40:00.011-05:00

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

2009-02-09T09:26:00.002-05:00

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

2009-02-09T09:06:00.005-05:00

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

2009-02-09T08:35:00.003-05:00

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?

2009-01-30T17:31:00.007-05:00

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

2009-01-29T11:52:00.005-05:00

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.

New Address for this Blog

2008-09-28T13:29:00.004-04:00

Effective October 1, 2008, future postings for this blog will be at a new address:
http://newyorkcriminaldefense.blogspot.com/

What does CPL 190.50 mean when it requires that the DA accord a defendant a reasonable time to testify at the Grand Jury?

2008-09-16T19:52:00.002-04:00

CPL 190.50(5)(a) requires that upon a request from a defendant to appear
before the grand jury, the district attorney must notify the defendant or
his attorney of the prospective or pending grand jury proceeding and must "
accord the defendant a reasonable time to exercise his right to appear as a
witness therein." In People v Shemesh ( __ NY3d __ [9/16/08]) the Court of Appeals affirmed a dismissal of an indictment, with leave to represent, because there was record support for the lower courts findings that the district attorney had failed to accord the defendant reasonable time to exercise his right to appear as a witness before the grand jury. The facts in Shemesh, which are set forth in the 3-2 decision of the Appellate Division, First Department at 2008 NY Slip Op 00208,51 AD3d 239, reveal that the district attorney had provided the defendant with 4 possible dates to testify, but that the defendant could not testify on any of those dates due to either a change in counsel (not for the purpose of being deliberately dilatory) or because it would conflict with his observance of a religious holiday. The trial court and the majority of the Appellate Division held that merely providing a defendant with four possible dates to testify was unreasonable where the defendant had timely communicated good reasons that he was unable to testify on those dates and that he was able to testify on a different date during the term of the grand jury. The Court of Appeals had previously held in People v Sawyer (96 NY2d 815, 816 [2001]) that the "concept of reasonableness is flexible and must be applied to the particular facts of a case known at the time." Applying Sawyer, the Appellate Division held that "[a] flexible application of the concept of reasonableness to the particular facts...cuts in favor of defendant..."

The affirmance of this holding by the Court of Appeals should provide
valuable support for attorneys seeking to challenge the limited times
offered by a district attorney to their clients to testify at the grand
jury as being unreasonable.

Error to Permit Defendant to Be Cross-Examined Regarding Prior YO Adjudication

2008-07-05T16:47:00.005-04:00

In People v Towsley, 2008 NY Slip Op 06054 [4th Dept 7/3/08] [here], the Fourth Department held that it was an abuse of discretion for the trial court to issue a Sandoval ruling permitting the defendant to be cross examined regarding a prior Youthful Offender adjudication. This error was deemed harmless; but this seems like a ruling to remember when you have a client who previously received YO status.

Reversal Due to Unpreserved Prosecutorial Misconduct

2008-07-05T16:37:00.003-04:00

In People v Fredrick, 2008 NY Slip Op 06056 [4th Dept 7/3/08] [here] the Fourth Department not only reversed a conviction due to unobjected to prosecutorial misconduct, but in doing so the Court expressly refused to consider whether the misconduct contributed to the verdict. In reversing in the interest of justices, the Court wrote

as defendant correctly contends, the prosecutor improperly vouched for the credibility of the People's witnesses during both his opening and closing statements (see People v LaDolce, 196 AD2d 49, 57; see generally People v Bailey, 58 NY2d 272, 277-278). He also improperly elicited testimony from a police officer who vouched for the credibility of the confidential informant by testifying that the confidential informant had provided reliable information to the police in the past (see People v Slaughter, 189 AD2d 157, 160, lv denied 81 NY2d 1080). In addition, the prosecutor repeatedly elicited irrelevant and highly prejudicial testimony from several police officers concerning the percentages of convictions obtained by those officers in prior unrelated cases, referred to by the prosecutor as their "batting average[s]." That misconduct was compounded during summation when the prosecutor highlighted the "exemplary record" of the police officers and the confidential informant who testified for the prosecution by stating that they were "batting 100 percent[,] 85 percent, 90 percent" (see generally People v Ashwal, 39 NY2d 105, 109-110). Further, the prosecutor improperly elicited testimony establishing that defendant had been incarcerated since his arrest (see People v Paul, 229 AD2d 932, 933), as well as testimony on direct examination of the confidential informant that defendant had not made certain exculpatory statements to him while they were in jail following defendant's arrest (see generally People v Collins, 12 AD3d 33, 38-39).

It cannot be said that County Court "took appropriate action to dilute the effect of [the prosecutorial misconduct]" (People v Mott, 94 AD2d 415, 419), and we conclude that the misconduct "operated to deny . . . defendant his fundamental right to a fair trial" (People v Crimmins, 36 NY2d 230, 238). We therefore "must reverse the conviction and grant a new trial, . . . without regard to any evaluation as to whether the errors contributed to the defendant's conviction. The right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right" (id.).

Horseshoes, Hand Grenades, and Predicate Sentencing:

2008-07-05T16:06:00.006-04:00

Besides the classic examples of horseshoes and hand grenades, compliance with the requirements for predicate sentencing is apparently another instance in which getting close is credited.

In People v Mateo, 2008 NY Slip Op 06087 [4th Dept 7/3/08](here] the Fourth Department considered the consequence of the failure of the People to file a
second felony offender statement as required by CPL 400.21 (2) following his retrial. The Court noted that

[t]he People filed a second felony offender statement at the first trial and defendant admitted his status as a second felony offender at that time and at sentencing following the retrial. We thus conclude that there was substantial compliance with the statute.

Thus, the People are required to have only substantial compliance with CPL 400.21 (2).

When Does a "Conviction" Occur?

2008-06-25T20:31:00.003-04:00

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

2008-06-15T20:54:00.003-04:00

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

2008-06-12T21:38:00.007-04:00

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

2008-06-08T20:44:00.006-04:00

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

2008-06-08T19:42:00.002-04:00

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

2008-06-08T19:28:00.002-04:00

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

2008-06-08T19:16:00.003-04:00

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

2008-06-08T19:04:00.004-04:00

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

2008-06-01T19:21:00.007-04:00

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.

One Cannot Be Incarcerated For Violating The Terms Of Post Release Supervision Not Imposed By A Judge

2008-05-23T19:57:00.006-04:00

After the Court of Appeals held that post release supervision sentences added by the Department of Corrections or by court personnel, other than judges are not validly imposed, but that resentencing was available in such cases for a court to lawfully impose such a sentence (People v Sparber)the questioned remained whether persons charged with violating the terms of post release supervision not imposed by judges are entitled to immediate release. Today, in People of State of New York ex rel. Lucas Foote v Piscotti the

Fourth Department answered this question with a clear "yes."
Petitioner commenced this habeas corpus proceeding contending that the Department of Correctional Services (DOCS) lacked the authority to include a period of postrelease supervision in petitioner's sentence calculation because the sentencing court had not imposed a period of postrelease supervision. County Court erred in refusing to sustain the writ of habeas corpus based upon its conclusion that postrelease supervision was mandated by law and that nullification of postrelease supervision would render petitioner's sentence invalid. As the Court of Appeals has written, "[b]ecause CPL 380.20 and 380.40 collectively provide that only a judge may impose a [postrelease supervision] sentence, we conclude that DOCS may not do so" (Matter of Garner v New York State Dept. of Correctional Servs., ___ NY3d ___, ___ [Apr. 29, 2008]).

Thus, the Court ordered that Sheriff discharge petitioner from custody forthwith.

Recent Third Department Reversals, Modifications and Dissents

2008-05-21T18:54:00.002-04:00

by Tim Davis, Esq.

People v Hackett, 47 AD3d 1122 (January 24, 2008)

Late one night, a State Trooper observed the defendant drive his vehicle over the fog line. The Trooper activated his emergency lights. After pulling over to the side of the road, the defendant leaned toward the passenger seat of his vehicle before the Trooper approached. The Trooper requested both license and registration, but defendant produced only the registration. Upon questioning defendant concerning his movement within the vehicle, defendant explained he was reaching for his cell phone, which he then showed to the Trooper.

The Trooper ordered defendant out, and decided to detain him for a traffic violation. The Trooper handcuffed defendant for safety reasons, and placed him in his patrol car while he ran a warrant check. He made no effort to determine whether defendant possessed a valid driver's license. Once a second Trooper arrived, the first went to defendant's vehicle, opened the passenger door and looked at the floor board. Seeing nothing, he bent down and shone his flashlight underneath the passenger seat, discovering a loaded handgun. A later search revealed a quantity of cocaine as well.

Indicted for two counts of Criminal Possession of a Controlled Substance in the Third Degree and three counts of Criminal Possession of a Weapon in the Third Degree, defendant moved to suppress the handgun and cocaine. The lower court relied on the minutes of the preliminary hearing - at which just the Trooper testified - and denied the request.

The Third Department, relying on People v Torres, 74 NY2d 224 [1989], held that the Trooper had no probable cause to return and search under the front passenger seat of defendant’s vehicle, when the defendant was secured and there was no imminent threat the Trooper’s safety. Although the defendant was driving erratically and disappeared from sight when he leaned toward the passenger seat, he explained this movement and produced his cell phone. Further, although the Trooper thought the defendant seemed nervous and repeatedly looked at his vehicle, this conduct was insufficient to justify a search. The search was unlawful because 1) there was no basis for the Trooper to believe a weapon was within the vehicle, and 2) no actual or specific danger threatened the safety of the officers.

People v Hasenflue, 48 AD3d 888 (February 21, 2008)

In March 2003, the defendant represented himself at trial, and was convicted of Attempted Aggravated Assault on a Police Officer, Reckless Endangerment in the First Degree and Aggravated Harassment in the Second Degree. He appealed, and argued that the court erred in proceeding to trial without completing a 730 exam, which was ordered by another judge at arraignment. Before trial, two psychologists attempted to examine the defendant, but made no determination as he refused to cooperate. In People v Hasenflue, 24 AD3d 1017, the Third Department held that the defendant was “deprived of his right to a full and fair determination of his mental capacity to stand trial,” and remitted the case for a reconstruction hearing.

Both counsel and the two psychologists who tried to interview defendant testified at the reconstruction hearing. The psychologists reviewed all the defendant’s psychiatric records and the court proceedings, leading them to opine that he was competent. Based upon this testimony, the court determined that the People established defendant’s competency to stand trial by a fair preponderance of the evidence.

The Third Department reversed, concluding it was not possible to determine defendant's competency given the lack of any contemporaneous psychiatric examinations/evaluations at the time of trial. While relevant to the ultimate issue, neither his observed demeanor at trial nor his self representation was sufficient to establish his competence.

People v Revette, 48 AD3d 886 (February 21, 2008)

Defendant was charged with setting two fires to the home of her ex-boyfriend, with whom she was involved in a custody dispute. She was convicted after trial of Arson in the Third Degree (two counts) and Burglary in the Third Degree (two counts).

Before trial, defendant sought dismissal of the indictment pursuant to CPL § 210.35(5), arguing that a grand juror was married to one of the three deputy sheriffs who investigated the fire and testified before the grand jury.

As a close relationship between a grand juror and a witness raises the risk of prejudice, the Third Department held that the prosecutor should have enquired whether the juror could fairly evaluate the evidence. Although the prosecutor asked the juror if she could remain impartial, he received an ambiguous response which he never asked her to clarify. This was significant as the number of jurors voting to indict was not recorded, and the testimony of the juror’s husband was important to the case.

People v Ramos, 48 AD3d 984 (February 28, 2008)

Defendant was convicted after trial of Burglary in the Second Degree and Criminal Mischief in the Third Degree. The court sentenced him to twelve years determinate on the burglary and four years determinate on the criminal mischief.

On appeal, defendant argued he should have been sentenced to an indeterminate term on the criminal mischief as it is a non-violent felony. The People conceded this was error. The Third Department vacated the sentence and remitted the case to the trial court.

People v Westerling, 48 AD3d 965 (February 28, 2008)

Defendant was charged with abducting and then raping his estranged girlfriend. He was convicted after trial of Rape in the First Degree, Criminal Sexual Act in the First Degree (two counts), Kidnaping in the Second Degree, Coercion in the First Degree, Criminal Use of a Firearm in the First Degree, Criminal Contempt in the First Degree (two counts) and Resisting Arrest.

The main issue on appeal was the trial court’s Molineux ruling permitting the People to introduce evidence of numerous domestic violence incidents between defendant and the complainant. In addition to a number of specific instances of violence, the trial court permitted the complainant to testify that defendant hit, bit or threw her approximately 100 times during their three-year relationship. The Third Department ruled it was improper for the court to allow her to testify to unparticularized acts occurring over such a lengthy period.

The potential prejudice of this testimony was exacerbated by the court’s failure to provide the jury with cautionary instructions regarding the limited purpose of this evidence. The court's final instructions were insufficient to cure this deficiency after the jury heard such evidence without any guidance as to its purpose.

People v Haddock, 48 AD3d 969 (February 28, 2008)

Defendant was convicted after trial of failing to comply with SORA - failing to register on an annual basis, and failing to register within ten days of a change of address.
On appeal, defendant raised the trial court’s refusal to charge the jury that the People were required to prove he knowingly failed to comply with SORA's registration requirements.

Although Correction Law § 168-t contains no requirement of a culpable mental state, the Third Department held that the legislature did not intend to create a strict liability crime. The Court found support for this position in the Pattern Criminal Jury Instructions, which set forth knowledge as an element. Although the People's proof included ample evidence of defendant's knowledge, the Third Department held that the failure to provide such a charge could not be regarded as harmless error.

People v Karika, 48 AD3d 980 (February 28, 2008)

Defendant was charged with Criminal Sexual Act in the First Degree and Sexual Abuse in the First Degree.

During his preliminary instructions, the trial judge correctly advised the jury not to consider the sentence the defendant might receive if convicted, as that was a matter solely for the court to determine. However, immediately before making this statement, the court inexplicably related a recent out-of-court conversation in which someone asked what the court might do when a person commits the charged crime without really meaning to, or knowing the proscribed conduct is unlawful. The court replied: “[I]f a jury decides they are guilty, I give them an unconditional discharge or conditional discharge. It reflects itself in the sentence.”

Defense counsel did not immediately object to this statement, but during the charge conference asked for a curative instruction as the jury might believe the defendant in this case - if found guilty - could receive a conditional or unconditional discharge.
The Third Department first ruled that counsel preserved this challenge even though he waited until the charge conference to request a curative instruction. The issue was raised in time for the court to act.

The Court then reversed, finding that the trial judge basically told the jury the defendant could receive a conditional or unconditional discharge if he were convicted of Criminal Sexual Act in the First Degree. This may have led the jury “to a scrutiny of the evidence less close than that to which defendant was entitled”

Post Release Supervision: What is the Remedy When Not Imposed By a Judge?

2008-05-04T08:12:00.007-04:00

In People v Sparber, 2008 NY Slip Op 03946 [NY 4/29/2008], the Court of Appeals finally considered the remedy when sentencing courts fail to pronounce their Post Release Supervision [PRS] terms in accordance with Criminal Procedure Law sections 380.20 and 380.40 and more than a year has past.

The Second Circuit, in considering this issue, held in Earley v Murray (451 F3d 71 [2d Cir 2006]), which held that DOCS's administrative addition of a PRS term not pronounced by Supreme Court violated federal "due process guarantees" (id. at 76 n 1) and should therefore be excised from the petitioner's sentence on a motion for a writ of habeas corpus. The New York Court of Appeals agreed with the Second Circuit that only a judge, and not prison or court clerks can impose PRS. However, the Court disagreed as to the remedy and as to the effect of the one year limit on th eabilty of prosecutors to seek resentencing set forth in CPL 440.40 [1]. The Court explained

It is indisputable that the relief that defendants request — expungement of their PRS terms — would permit them to serve a sentence not in compliance with the statute. But defendants say that this result is required because the People failed to seek proper resentencing within one year from the date of their convictions and did not properly preserve their objection to defendant's expungement remedy before the trial court (see CPL 440.40 [1])[FN6]. Defendants are incorrect. The sole remedy for a procedural error such as this is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement (see People v Sturgis, 69 NY2d 816, 817-818 [1987] ["[A] sentence [that] violates the mandate of CPL 380.20 . . . must be vacated and the case remitted to the trial court for resentencing"]; see also People v Stroman, 36 NY2d 939, 940-941 [1975] [violation of CPL 380.40 requires reversal and remitter for resentencing]).[FN7]

In all five of these cases, there exists no procedural bar to allowing the sentencing [*9]court to correct its PRS error [FN8]. It is obvious that at the time of each defendant's sentencing, Supreme Court intended to impose a sentence in compliance with the provisions of Penal Law §§ 70.00 (6) and 70.45 (1) — one that consisted of a determinate sentence and a period of PRS. No record evidence rebuts that presumption. Thus, the failure to pronounce the required sentence amounts only to a procedural error, akin to a misstatement or clerical error, which the sentencing court could easily remedy (see People v DeValle, 94 NY2d 870, 871 [2000]; People v Wright, 56 NY2d 613, 614 [1982]; People v Minaya, 54 NY2d 360, 364-365 [1981]).

Two footnotes to ponder. First note 6:

Defendants could, of course, move "[a]t any time" for resentencing (CPL 440.20 [1]). Their failure to exercise that right does not entitle them to the remedy requested here. Further, a court's authority to correct its own errors at resentencing is not subject to the one-year time limit imposed on the People by CPL 440.40 (1) (see People v Wright, 56 NY2d 613, 615 [1982] ["(I)t is clear that CPL 440.40 is intended only as a limitation on the People with reference to an 'invalid [sentence] as a matter of law' not imposed by mistake"]).

This note raises at least three questions. First, how could a defense attorney ethically move to have his client's sentence increased? Second, why would she do so? Third, in the divide between invalid sentences and mistaken sentence, how can the failure to be impose a mandatory PRS not be classified as an invalid sentence subject to the one year limitation?

Then comes note 7:

Defendants assert that CPL 450.90 precludes us from remitting for resentencing because the People, having prevailed below, are not entitled to that affirmative relief from this Court. Defendants are mistaken. Rather than affirmative relief to the People, this Court is merely giving a more limited form of relief to defendants than they seek.

So when the defendant argues that the PRS sentence was unlawfully imposed by prison or court officials other than a judges and that he is not and cannot be now subject to PRS, ithe imposition of PRS is just a limited form of the relief that defendant wanted. Which defendant ever asked for or wanted PRS?

Weapons and Assault Sentences to Run Concurrently

2008-05-03T23:39:00.002-04:00

In People v Torres, 2008 NY Slip Op 03888 [4th Dept 4/25/2008], the Court agreed

with defendant...that County Court erred in directing that the sentence imposed on the count of criminal possession of a weapon shall run consecutively to the sentence imposed on each count of attempted assault and attempted aggravated assault. There is no evidence that defendant "possessed the pistol with a purpose unrelated to his intent to shoot [the officers]" (People v Hamilton, 4 NY3d 654, 658), and thus the sentence imposed on the count of criminal possession of a weapon in the second degree must run concurrently with the sentences imposed on those counts (see People v Manor, 38 AD3d 1257, 1259, lv denied 9 NY3d 847; People v Boyer, 31 AD3d 1136, 1139, lv denied 7 NY3d 865).

Robbery Conviction Reversed As Against Weight of Evidence

2008-05-03T23:31:00.003-04:00

In <People v Newkirk, 2008 NY Slip Op 03879 [4th Dept 4/25/2008], the Court agreed

with defendant that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495). Although the weight of the evidence establishes that defendant and two accomplices went to the wholesale club with the intent to commit a larceny, it does not establish that defendant forcibly stole property (see generally id.).

The evidence presented at trial establishes that, upon entering the wholesale club, defendant and one of his accomplices saw a loss prevention employee, who was seated in a wheelchair at the entrance/exit. After entering the wholesale club, defendant and that accomplice each picked up two boxed computer monitors, intending to steal them. As they approached the exit, the accomplice ran out first, whereupon the employee attempted to grab one of the boxes, causing the wheelchair to spin. The employee then left his wheelchair and followed the accomplice on foot. Defendant remained in the wholesale club and, immediately after the contact between the accomplice and the employee, defendant discontinued his participation in the larceny by dropping the two boxed computer monitors that he was carrying. The accomplice, followed by the employee, continued out of the wholesale club to a vehicle where the second accomplice was waiting. When the two accomplices attempted to drive away in the vehicle, the accomplice who had been with defendant in the wholesale club punched the employee in the face, causing the employee physical injury. Defendant walked out of the store as the two accomplices drove away in the vehicle, and he offered aid to the employee before walking away. [*2]

The evidence weighs heavily in favor of a finding that defendant neither "forcibly [stole] property" (Penal Law § 160.10), nor "solicited, requested, commanded, importuned, or intentionally aided [the accomplice in the wholesale club] in the commission of the crime" (People v Carr-El, 287 AD2d 731, 733, affd 99 NY2d 546; see § 20.00; cf. People v Allah, 71 NY2d 830, 832; People v Harris, 19 AD3d 871, 873-874, lv denied 5 NY3d 806; People v Mejia, 297 AD2d 755, lv denied 99 NY2d 561). We thus conclude that the jury failed to give the evidence the weight it should be accorded on the issue whether defendant shared "the mental culpability necessary to commit the crime charged," i.e., the intent to commit a forcible theft (Carr-El, 287 AD2d at 733; see generally Bleakley, 69 NY2d at 495).

Defendant Needs to Object to Conflict of Interest

2008-05-03T23:18:00.002-04:00

In People v Peterson, 2008 NY Slip Op 03822 [4th Dept 4/25/2008], the Court held that where a defendant contended that County Court failed to engage in a sufficient Gomberg inquiry when the court learned that defendant and a codefendant were represented by the same attorney (see People v Gomberg, 38 NY2d 307, 313-314) the "Defendant failed to preserve that contention for our review (see People v Woods, 6 AD3d 1126, 1127, lv denied 3 NY3d 683...." What duty does the Court have to point out the potential problem to the defendant?

Evidence of ABSENCE of Sexual Activity Barred by CPL 60.42

2008-05-03T19:57:00.002-04:00

The Court in People v Bones, 2008 NY Slip Op 03788 [4th Dept 4/25/2008] held that

The court properly determined that CPL 60.42, which concerns the admissibility of evidence of a victim's past sexual activity, also concerns the admissibility of evidence of the absence of sexual activity on the part of the victim (see generally People v Williams, 81 NY2d 303, 311; People v Nemie, 87 Cal App 3d 926, 929).

Can Contrary Verdicts For Co-Defendants Be Repugnant?

2008-05-03T19:48:00.004-04:00

Although the answer to the question posed by the caption is "yes," the Court in People v McLaurin, [4th Dept 4/25/2008]rejected a claim that that a verdict convicting a father of resisting arrest was repugnant to the jury's acquittal of the son on that charge, where they had the same defense - that the son was not present. The Court explained that

[A] conviction will be reversed [as repugnant] only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered" (People v Tucker, 55 NY2d 1, 7, rearg denied 55 NY2d 1039). That rule also applies when one codefendant is convicted of a crime while another is acquitted of the same crime (see generally People v Green, 71 NY2d 1006, 1008; People v Hampton, 61 NY2d 963, 964). With respect to the charge of resisting arrest against defendant's son, the jury's finding that the People failed to prove beyond a reasonable doubt that defendant's son "prevented or attempted to prevent a police officer from performing an authorized arrest of himself" did not negate any element of either the resisting arrest charge or obstructing governmental administration charge against defendant. Defendant further contends that the verdicts are repugnant because both he and his son relied upon the same defense at trial, i.e., that the son was never present, and the jury must have found that the son was not present in order to acquit him. We reject that contention inasmuch as it involves "an attempt to divine the jury's collective mental process of weighing the evidence," which is prohibited (Tucker, 55 NY2d at 4).

IAC Claims Need to be Preserved

2008-05-03T17:31:00.002-04:00

The Court in People v Hall, 2008 NY Slip Op 03738 [4th Dept 4/25/2008], in rejecting a claim of ineffective assistance of counsel, held that

To the extent that the contention of defendant that he was denied effective assistance of counsel survives his plea of guilty (see People v Burke, 256 AD2d 1244, lv denied 93 NY2d 851), we note that defendant failed to preserve that contention for our review (see People v Tantao, 41 AD3d 1274; People v Fulford, 296 AD2d 661, 662).

Attack a Plea at Your Peril

2008-05-03T17:19:00.003-04:00

In another reminder to counsel of the need to to be cautious in attacking a guilty plea, the Court, in People v Hinckley, 2008 NY Slip Op 03737 [4th Dept 4/25/08], in vacating one of two counts of a plea to CSCS in the third degree on finding that the defendant's "plea with respect to that count falls within the narrow exception to the preservation requirement (see Lopez, 71 NY2d at 666)" held that

In as much as defendant's plea was entered upon a negotiated agreement, we note that, in the event that defendant does not enter a plea of guilty to criminal possession of a controlled substance in the third degree upon remittal, the court "should entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety" (People v Irwin, 166 AD2d 924, 925; cf. People v Hall, ___ AD3d ___ [Apr. 25, 2008]).

Attenuation: White, Paulman and Chapple

2008-05-03T16:37:00.005-04:00

In People v Parker, 2008 NY Slip Op 03906 [4th Dept 4/25/2008] the Court found that despite a a period of custodial interrogation without Miranda warnings, during which the defendant repeatedly made admissions, the post-Miranda statement was attenuated

The record establishes that, shortly after defendant was taken into police custody, he was questioned by a police officer and made admissions in response to those questions. Before he was transported to the police station, he reiterated those admissions to another officer. No Miranda warnings preceded those statements and, in the ensuing hour, defendant was transported to the police station. Miranda warnings were then administered, after which defendant gave the third statement that he seeks to suppress. Upon a review of the factors set forth in People v Paulman (5 NY3d 122, 130-131), including the time between the Miranda violation and the third statement, the change in location, the fact that "defendant exhibited a willingness to provide an explanation of his conduct and [the fact that], once at the police [station], he never expressed any reluctance to discuss the allegations" (id. at 131; see People v White, ___ NY3d ___ [Mar. 20, 2008]), we conclude that there was "such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning" (People v Chapple, 38 NY2d 112, 115).

Court Cites Decision in Douglas Warney's Appeal In Affirming Conviction Despite Challenges to Confession and Claims of Misconduct

2008-05-03T15:22:00.014-04:00

In rejecting the Defendant's contention that he was deprived of a fair trial based on alleged misconduct by the prosecutor in cross-examining defendant's witnesses, the Court, in People v Alexander, 2008 NY Slip Op 04163 [4th Dept 5/2/2008] held that

Defendant's contention with respect to three of the allegedly improper questions is not preserved for our review inasmuch as defendant made only general objections to those questions (see generally People v Pierre, 300 AD2d 1070, lv denied 99 NY2d 631), and we decline to exercise our power to review defendant's contention concerning those three questions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We conclude that the court properly denied defendant's request for a mistrial based on two other allegedly improper questions. The court sustained defendant's objections to those questions and gave curative instructions with respect to them, and "the jury is presumed to have followed" those curative instructions (People v Duvall, 260 AD2d 183, 184, lv denied 93 NY2d 924; see also People v Davis, 58 NY2d 1102, 1103-1104). The remaining allegedly improper questions concern the prosecutor's cross-examination of defendant, and "[i]t does not appear on the record before us that the conduct of the prosecutor during [that] cross-examination . . . was intended merely to harass, annoy or humiliate defendant . . . Rather, it appears that the cross-examination was intended to place defendant in his proper setting and put the weight of his testimony and his credibility to a test, without which a jury cannot fairly appraise [the facts]" (People v Brent-Pridgen, 48 AD3d 1054, 1055 [internal quotation marks omitted]). Defendant failed to preserve for our review his further contention that he was [*3]deprived of a fair trial by prosecutorial misconduct during summation (see People v Smith, 32 AD3d 1291, 1292, lv denied 8 NY3d 849). In any event, "that . . . contention is without merit inasmuch as the prosecutor's comments were either a fair response to defense counsel's summation or were fair comment on the evidence" (People v Green, 48 AD3d 1245, 1245-1246; see People v Williams, 43 AD3d 1336; see generally People v Halm, 81 NY2d 819, 821).

In the same decision the Court rejected an attack on the voluntariness of the confession by citing People v Warney, 299 AD2d 956, 957, 2002 N.Y. Slip Op. 08487,

We reject the contention of defendant that the verdict is against the weight of the evidence (see generally id.). "Issues with respect to the credibility of prosecution witnesses concerning the voluntariness of the confession were for the jury to decide, and there is no basis in the record to disturb the jury's resolution of those issues' " (People v Warney, 299 AD2d 956, 957, lv denied 99 NY2d 633; see People v Sanchez, 267 AD2d 960, lv denied 94 NY2d 906).

Why does that case seem like an odd one to cite in rejecting a challenge to a confession? Perhaps because Douglas Warney's confession was the false product of police misconduct and, after his conviction was affirmed and after he spent 10 years in prison, DNA testing, resisted by the Monroe County District Attorney proved his innocence and the falsity of his confession. Also see this New York Times article.

In Mr. Alexander's case, the fact that he had been interrogated for 9 hours prior to giving a statement was not dispositive, since

the record establishes that there were several breaks in the interrogation during which defendant was left alone, and there is no indication that he sought to end the interrogation, or that he requested food or water, or to use the bathroom (see People v Whitten, 183 AD2d 865, lv denied 81 NY2d 849). The record further establishes that defendant was advised of his Miranda rights a second time and signed a written waiver immediately before signing the statement.

Claim of Right Defense Should Have Been Charged

2008-05-03T15:18:00.006-04:00

In People v Ace,2008 NY Slip Op 04162 [4th Dept 5/2/08], the Court reversed a larceny conviction in the interest of justice, holding that County Court erred in failing to charge the jury that his claim of right was a defense to the count of grand larceny, where

Defendant testified at trial that he was instructed by one of the co-owners of the company that employed him to take the allegedly stolen rails to the scrap yard, and that testimony was corroborated in part by one of defendant's coworkers. Viewing the evidence in the light most favorable to defendant, as we must (see People v Banks, 76 NY2d 799, 800; People v Cunningham, 12 AD3d 1131, 1132, lv denied 4 NY3d 829, 5 NY3d 761), we conclude that there is a reasonable view of the evidence that would enable a jury to find that defendant took the rails under a claim of right (see generally People v Moscato, 251 AD2d 352, 352-353; People v Ricchiuti, 93 AD2d 842, 844).

Considering that the instruction was not requested by counsel, that is quite a win for Mary Davision.

"I Did This Before" Admissible as Res Gestae

2008-05-03T14:15:00.004-04:00

In a prosecution for murder in the fist degree based on a murder committed during a rape (Penal Law § 125.27 [1] [a] [vii]), as well as two counts of rape in the first degree (§ 130.35 [1]), the Court in People v Owens [4th Dep 5/2/08], held that defendant's

contention that the court erred in permitting the victim who [*2]was the subject of the two rape counts to testify that during the course of the rape defendant stated, "I did this before. Sooner or later I'm going to get caught. I might as well face my consequences." The statement was properly admitted as part of the res gestae of the rape counts (see People v Lewis, 25 AD3d 824, 826, lv denied 7 NY3d 791, 796; PPeople v Ayala, 273 AD2d 40, lv denied 95 NY2d 863; People v Chavys, 263 AD2d 964, 965, lv denied 94 NY2d 821), and it constituted an admission with respect to those counts (see generally People v Geddes, ___ AD3d ___ [Mar. 14, 2008]; People v Figgins, 48 AD3d 1042). We note that the court properly instructed the jury to consider the testimony only with respect to the rape counts, and not the murder counts, thus limiting " the possibility of prejudice' " (People v Dozier, 32 AD3d 1346, 1347, lv dismissed 8 NY3d 880; see generally People v Dickson, 21 AD3d 646, 647).

When Can Multiple Acts Be Grouped Together in an Intentional or Depraved Assault Count?

2008-05-03T12:12:00.005-04:00

Five months after oral argument, in People v Bauman [2008 NY Slip Op 04182](4th Dept 5/2/08] a divided Fourth Department issued a decision addressing the propriety of grouping multiple acts over an extend period of time in a single count charging intentional or depraved indifference assault.

The allegations are indisputably ugly. The People presented evidence that

defendants resided with the victim, who suffers from multiple sclerosis, and that over an eight-month period they allegedly struck the victim with, inter alia, their fists, a baseball bat and a hammer. That alleged conduct by defendants caused the victim to sustain various injuries, including a detached retina, fractured fingers, ribs and facial bones, and internal bleeding. The People also presented evidence that defendants allegedly burned the victim with a frying pan, scalded him with hot water, denied him food, locked him in a basement room for several hours at a time, and required him to sleep in the unheated basement on a plastic lawn chair. Emergency personnel who were called to the residence found the victim in the basement, near death.

The two co-defendants were each charged with both intentional and depraved indifference assault. Both counts listed numerous acts. The intentional assault count alleged that "[defendants] caused such injury . . . by means of a dangerous instrument, to wit: a baseball bat and/or a frying pan and/or a vacuum cleaner and/or a hammer." The depraved assault count alleged that

on or about and between August 1, 2004 and April 7, 2005, under circumstances evincing a depraved indifference to human life, recklessly engaged in a course of conduct which created a grave risk of death to another person . . . by striking said person about the head and body with fists and/or a baseball bat and/or a hammer; and/or burning said person with a frying pan; and/or scalding said person with hot water; and/or placing a vacuum cleaner hose on said person's genital area; and/or providing inappropriate and/or inadequate nutrition; and/or subjecting said person to inadequate and/or inappropriate living conditions; and/or failing to seek medical attention and thereby caused serious physical injury to [said person].

The trial court dismissed both counts of the indictment as duplicitous and the People appealed. In a signed opinion by Presiding Justice Scudder, the three justice majority affirmed.

With respect to the intentional assault the Court explained

Here, the alleged use by defendants of multiple dangerous instruments caused the victim to sustain multiple serious physical injuries, including second degree burns, fractured facial bones, fingers, and ribs, as well as internal bleeding. We thus conclude that count one charges more than one offense. It is of particular "significan[ce] that the charged conduct was not the product of one impulse,' permitting only one prosecution no matter how long the action may continue, but[, rather, the charged conduct was the product of] successive and distinguishable impulses, each able to support a separate charge" (People v Okafore, 72 NY2d 81, 87; cf. People v Hines, 39 AD3d 968, 969-970, lv denied 9 NY3d 876). Indeed, we note that a jury might find both that defendants committed the offense of intentional assault by burning the victim's arm with a hot frying pan and that they committed the offense of intentional assault by breaking the victim's fingers with a hammer. Thus, in the event of a conviction, "there is such a multiplicity of acts encompassed in [count one] as to make it virtually impossible to determine the particular act [or acts of intentional assault] as to which the jury reached a unanimous verdict" (Keindl, 68 NY2d at 421; cf. Hines, 39 AD3d at 969-970). "The [potential] prejudice to the defendant[s] is manifest" (Keindl, 68 NY2d at 421).

The dissenting judges agreed with this portion of the decision. It was the Court's holding regarding the depraved assault count that divided the Court. The majority held that

Although the alleged conduct in count two is not duplicitous with respect to the element of depraved indifference to human life, we nevertheless conclude that, as with count one, in the event of a conviction there "is such a multiplicity of acts . . . as to make it virtually impossible to determine the particular" conduct that allegedly created a grave risk of death or which serious injury was thereby caused, and thus whether the jury reached a unanimous verdict (Keindl, 68 NY2d at 421; cf. Hines, 39 AD3d at 969-970). A jury might find that the alleged aggregate conduct over the eight-month period created a grave risk of death, resulting in the serious physical injuries of lowered body temperature and unconsciousness of the victim, but it might [*3]also find that the alleged course of conduct of repeatedly beating the victim caused a grave risk of death resulting in the serious physical injuries of, inter alia, fractures and internal bleeding. Indeed, a jury might find on the alleged facts that defendants' ongoing conduct created a grave risk of death on several occasions over the eight-month period, each of which resulted in serious physical injury (see generally Penal Law § 120.10 [3]). By way of contrast, in the event that the same ongoing conduct alleged in count two had resulted in the death of the victim, the multiple acts would have caused a single result, i.e., death (see § 125.25 [2]; see generally People v Dickerson, 42 AD3d 228, 234-235, lv denied 9 NY3d 960). With respect to the offense of assault in the first degree, Penal Law § 120.10 (3) contemplates that the result of reckless conduct creating a grave risk of death is serious physical injury and, here, there are multiple serious physical injuries that were caused by the alleged acts over the eight-month period. Thus, because count two alleged "the commission of a particular offense[, i.e., depraved indifference assault,] occurring repeatedly during a designated period of time" (Keindl, 68 NY2d at 418), that count is duplicitous (see generally id. at 417-418).

By contrast, the two dissenting justices in an opinion by Justice Fahey, reasoned that

depraved indifference assault is akin to the crimes of endangering the welfare of a child or depraved indifference murder, because it is "a crime that by its nature may be committed either by one act or by multiple acts and readily permits characterization as a continuing offense over a period of time" (People v Keindl, 68 NY2d 410, 421; see People v Brammer, 189 AD2d 885, lv denied 81 NY2d 967).Based on our conclusion that depraved indifference assault is a continuing crime, we are then faced with the issue of duplicity.....The test for duplicity that has evolved is whether, under a particular count alleged to be duplicitous, a defendant can "be convicted of [any] of the crimes charged therein, should the district attorney elect to waive the other[s]" (People v Klipfel, 160 NY 371, 374; see Butler, 161 Misc 2d at 984).... Gravamen is the essence of a claim (see Black's Law Dictionary 721 [8th ed 2004]). Here, the gravamen of the act of depraved indifference assault is that the defendants acted with depraved indifference. The character of the act is defined by the ongoing abuse of the victim, which resulted in both serious physical injury and a grave risk of death. In view of our determination that depraved indifference assault is a continuing crime, we are compelled to conclude that there was only one occasion on which defendants' conduct resulted in serious physical injury and a grave risk of death, i.e., on April 7, 2005. We thus conclude that count two of the indictment is not duplicitous because it alleges a continuing offense with a series of serious physical injuries culminating in a grave risk of death on one occasion.

Finally, we note that, as the Court of Appeals stated in the context of depraved indifference murder, "a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim" is a prime example of depraved indifference (People v Suarez, 6 NY3d 202, 212). Such a course of conduct must necessarily involve multiple incidents. If one were to contend that the inclusion of multiple incidents renders a depraved indifference count duplicitous, then it would be impossible to prove an allegation of "a brutal and prolonged course of conduct" in support of a charge of depraved indifference. The allegations of depraved indifference assault in this case, if proven, establish the requisite shocking and callous conduct toward a particularly vulnerable victim over a prolonged period of time.

Selected Criminal and Family Law Decisions From the First Department

2008-04-30T20:38:00.003-04:00

By Janet Somes:

From January & February, 2008

CRIMINAL LAW

People v Stephens, 47 AD3d 586 (decided Jan. 31, 2008)
Lower court order of suppression of evidence reversed (ouch). Defendant was taking a walk in area where there had been some robberies. One hand was swinging while his other hand was still, near his waistband. Defendant “apparently noticed the officers” but kept looking straight ahead “as if he was very nervous or had seen a ghost”. When cops got out of car D ran and cops caught him, but not before he threw gun under a car (and some drugs too). Lower court’s finding that D’s behavior was innocuous, and reasonable suspicion lacking, was wrong, as First Dept explained that cop had suspicion that D carrying a gun based upon the way he was walking, and that suspicion was heightened when he ran away before cops could ask him questions.

People v Inglasis, 47 AD3d 593 (decided Jan. 31, 2008)
In burglary trial, it was not ineffective, or otherwise prejudicial for defense counsel to elicit from detective that he “believed” defendant had been arrested for prior robberies, given that the court immediately “struck” the testimony.

Matter of Elvin G., 47 AD3d 527 decided Jan. 29, 2008)
Search issue in JD proceeding. Lower court denied suppression without hearing on ground of factual inadequacies in allegations. Affirmed. Dean of school, responding to teacher reporting an electronic noise, possibly from a cell phone, had all students stand and started “checking” their pockets. D then took a hunting knife out of his pocket and held it in open view. First Department held there was not search, and even if there was, it was reasonably tailored to be least intrusive, most effective means of finding the offending cell phone. Only an issue of law here, which was resolvable on allegations, and no reason to remand for more proof as dissent would have done.
*DISSENT (2 judges): Was the Dean’s actions the least intrusive and most effective means? Send it back for a hearing on that issue. Also, court below failed to apply correct legal standard to this search. No showing that the suspected cell phone presented any kind of threat to safety or educational process, justifying a warrantless search. Also, family court found Dean’s actions necessary to restore order to classroom, but allegations suggested this was a substantial invasion not warranted by a ringing cell phone, which had stopped ringing by the time of the search. There were factual disputes to be resolved.

People v Packman, (January 29, 2008)
Denial of suppression reversed and indictment dismissed in well written decision. Police were looking to arrest driver of vehicle (not D) on forgery charges. They stopped car driven by suspected forger, and told passenger (D) to stay in car and keep hands in sight. D tried to exit vehicle and tried to walk away, but police stopped him. D then told to get out of car. D frisked and a small knife taken out of his pocket. Police asked for ID and D told them it was in his backpack. Police asked if they could open backpack it to get ID. A knife, which was the basis of the CPW conviction, was found in backpack. Not only was frisk illegal, but Court rejects theory that search of backpack was result of benign request and consent. People failed to meet their high burden to show consent was unequivocal product of an essentially free and unconstrained choice. People’s burden under these facts is “insuperable”.
*DISSENT: Consent valid, finding attenuation.

People v Rouse, 47 AD3d 637 (January 29, 2008)
Denial of 30.30 motion affirmed. Pre-trial readiness period of 30 days properly charged to Defendant as time without counsel, notwithstanding that the court had assigned counsel. Court assigned attorney who was in another court. There had been no request by counsel for an adjournment or consent to one. Since counsel had just been assigned and had no knowledge of the case, defendant was still without counsel within the meaning of the statute, according to the court. As to post-readiness delay, six weeks was reasonable for DA to respond to motions and provide Grand Jury minutes.

People v Harrison, 47 AD3d 541 (January 29, 2008)
Burglary third conviction affirmed. Although unpreserved, the issue of whether a van is a building is resolved against D, as the van at issue was an "inclosed motor truck," and it met the definition of a "building" under Penal Law § 140.00 (2) and § 140.20 .

People v Nunez, 47 AD3d 545 (January 29, 2008)
Order granting 30.30 dismissal affirmed. People’s statement of readiness as to challenged time period was equivocal, and held against them. DA told the court that they may not be ready on the trial date of April 17th because the DA may need to try another case that day, and suggested a date of May 2. The time between April 17 and May 2 goes against the DA.

People v Allen, 47 AD3d 543 (January 29, 2008)
CPL 440.30 (1-a) does not permit a D who has pled guilty to seek DNA testing.

People v Collado, 47 AD3d 547 (January 29, 2008)
Police had probable cause where unidentified complainant pointed out D and his companions as guys who tried to rob him. As police approached, men took “evasive” action and one (not D) pulled out “air gun” which resembled firearm. That provided probable cause to arrest and remove D to station. Although police could not find the unidentified complainant of alleged initial robbery, while at station D was conveniently identified by a witness of a different robbery, which resulted in present conviction. No one is bothered that the original unidentified complainant disappeared. Also, on PSR sentencing issue, resort to court documents (worksheet and commitment) will permit the imposition of a mandatory PRS period, where court failed to mention it during sentence (Okay, in light of the Court of Appeals decision in People v Sparber. __ NY3d __ (4/29/08) we know that this part of the decsion is wrong).

People v Holman, 46 AD3d 518 (January 24, 2008)
Court was within its discretion to permit juror to submit written questions for the witness, some of which it struck as improper, and others of which it permitted the witness to answer. Also, counsel consented to both procedure and specific questions asked, so current complaint regarding those issues was waived.

People v Davis, 47 AD3d 506 (January 22, 2008)
Refusal to charge lesser included robbery charge affirmed. Victim testified D displayed what appeared to be a firearm and there is no reason to selectively discredit this one portion of V’s testimony to charge down to a robbery third. Also, accomplice testified he heard D threaten to use gun.
*DISSENT: Jurors could have rejected accomplice’s testimony given the proof which showed no gun, and his failure to mention his current claim about D’s threat to use gun before.

People v Shemesh, (January 15, 2008)
Lower court correctly dismissed indictment (with leave to re-present) for failure to offer D a reasonable opportunity to testify before the GJ. Notice of D’s desire to testify clearly served, as was notice that he would not be able to testify during Passover dates. Although three dates were discussed for D to testify, DA eventually only offered a date when D was observing Passover. People had argued that (1) there is no valid religious reason he could not testify during Passover as attested to by a Rabbi, and (2) D did other things during that time which showed maybe he was not all that devout. First Dept would not even go there. Statutory right to testify conflicted with right to exercise religion, and D was diligent and persistent in trying to schedule a date that did not conflict.
*DISSENT: takes issue with majority’s conclusion that D did not testify on two days before Passover began due to no fault of his own.

People v Jean-Pierre, 47 AD3d 445 (January 10, 2008)
Lower court order of suppression of evidence reversed (ouch again). Arresting officer erroneously believed that a “03" sticker on D’s New Jersey License plate meant that the registration had expired in 2003. Upon stopping car, officer got a whiff of weed and saw some baggies of the stuff. His belief about the registration was reasonable, and it was a error of fact not law. Therefore he was justified in stopping the car.

People v Thomas, 47 AD3d 415 (January 3, 2008)
Conviction reversed and new trial granted. Retained counsel was properly relieved by court over D’s objection. But, court should have provided D a reasonable opportunity to retain new counsel, instead of assigning counsel chosen by the court. D made clear that if the court was going to relieve his first attorney, he wanted to hire a new one of his own choosing. Reversal would also be required by the trial court’s improvident exercise of discretion in refusing to order a CPL 730 examination as requested by new counsel. It had been over a year since the last one and there were strong indications a new exam was needed.

People v Mobley, 48 AD3d 374 (Feb 28, 2008)
Lower court order of suppression affirmed. Even though there was testimony that area was high crime area known for drugs and prostitution, there was no indication of such with regard to the lawfully parked car containing a female and male, which police approached, for no objective, credible reason, requesting information about the reason for their presence. Even if first inquiry justified, nothing about response served to elevate level of suspicion, there was no reason for second approach. Gun in plain view, seen during second approach, suppressed. Court did not buy DA’s argument that second approach was just a continuation of first approach.

People v Graham, 48 AD3d 265 (Feb 14, 2008)
Two counts reversed because court below erred in denying suppression of statements. D given Miranda by one cop, and 8 hours later he told a different cop he did not want to talk. Without re-administering Miranda, second cop told D there was evidence linking him to crime and D confessed. Questioning should have seized after D said he did not want to talk. Error harmless as to other counts.

FAMILY LAW

Matter of Kalya, 47 AD3d 571 (decided Jan. 31, 2008)
Neglect (mental illness) determination affirmed. Mother’s behavior of poor impulse control and poor insight was found by the majority to constitute judgment so strongly impaired as to expose the child to risk of substantial harm as to sustain a finding of neglect. Mother’s mental health challenges included depression, inability to cope, tearfulness to the point of inability to communicate, and anger flare-ups. From the evidence doctors concluded a concomitant inability to care adequately for the child. These opinions and observations were based upon a one week period.
* DISSENT (2 judges). Of the two doctors who testified, neither had observed mother long enough to make mental illness diagnosis (2 hours by one, and 1 week following trauma of miscarriage by the other.) Evidence did not show anything more than a physically exhausted mother who had just suffered a miscarriage and had who momentarily “lost it”. Inadequate evidence of neglect due to mental illness. Also, there was a good reason for mother to become angry with the doctor - - he lied to her and tricked her into thinking she was being sent to a place for a “rest” due to exhaustion, only to learn she was being sent to hospital where she was held for evaluation. Second doctor diagnoses of depression was not shown to cause risk to child. Even if there was proof of mental illness, causal connection between condition and risk of harm not established as there needs to be a substantial probability of neglect resulting in risk to child.

Matter of Joshua R., 47 AD3d 465 (January 15, 2008)
Family Court ordered modified and finding of abuse and derivative abuse vacated (neglect and derivative neglect affirmed). After child refused to eat, father forced food in his mouth causing him to vomit, and slapped child causing a bloody nose and black eye. Neglect and derivative neglect (as to sister) were affirmed. Court noted that there was evidence that father did not believe his striking child was excessive, and the evidence did not support a finding that father inflicted an injury to child "which cause[d] or create[d] a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ" (Family Ct Act § 1012 [e] [I]).
*DISSENT: Other evidence shows father had uncontrolled anger and which creates a substantial risk of the requisite harm.

Matter of Jeffery C. (January 10, 2008)
Family Court adjudication of JD modified with PINS adjudication instead. Isolated incident was basis for the JD. The JD adjudication was not the least restrictive available alternative to meet needs of child and community.

Matter of Medina Armor S. (January 10, 2008)
Family Court termination of parental rights reversed, where court inappropriately found incarcerated father abandoned child. Father in prison on murder conviction, with earliest release date in 2016, and drug addicted mother’s whereabouts unknown. Agency took children to prison once to visit father 4 years before bringing termination petition. Petition alleged failure to communicate or visit for 6 months prior to time petition brought. Caseworker testified that she did not contact father directly, and that she did not know she could. (Family court schooled her on her obligation to communicate directly with incarcerated parent.) Evidence showed agency made no efforts to assist in communication. Right before petition filed, an inmate advocacy group contacted agency to arrange visit with father. “Although the court found respondent had abandoned the children, what it really did was take the easier route to termination of parental rights by improperly applying the ‘permanently neglected child’ element of ‘insubstantial contacts’ (Social Services Law § 384-b[7]) rather than the ‘abandoned’ child standard (§ 384-b[5])”, noting these subdivisions are designed to accomplish two different goals. No abandonment on these facts. Good decision.

Some Recent Decisions From the Second Department

2008-04-27T22:16:00.001-04:00

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.

AD 4th Dept: Selected Decisions of March 21, 2008

2008-04-07T18:54:00.003-04:00

Reckless, But Not Depraved

In People v Bolling 2008 NY Slip Op 02654 (4th Dept 3/21/08), the Fourth Department, once again, has reduced a depraved murder conviction to that of reckless manslaughter. In this case, the Court held that the fatal shot to the decedent’s thigh
"does not warrant a finding that defendant's conduct demonstrated the utter disregard for the value of human life' necessary to support the conviction
of depraved indifference murder (People v Suarez, 6 NY3d 202, 214).”
Other cases in which the Court similarly held that the evidence was insufficient
to support a depraved murder conviction include People v De Capua, 37 AD3d
1189 (4th Dept 2007), People v Smothers, 41 AD3d 1271 (4th Dept 2007),People v Casper, 42 AD3d 879 4th Dept 2007) and People v Lawhorn, 21 AD3d 1289 (4th Dept 2005).

A General Objection Is Generally Insufficient

Reminding attorneys that a general objection is hardly any better than no
objection at all, the Court, in People v Mobley 2008 NY Slip Op 02663 (4th Dept 3/21/2008), held that

Because defendant made only a general objection to the testimony of a
police officer that there was "a point in time in [her] investigation
when [she] came up with the name of a suspect" and that the name of
the suspect was that of defendant, he also failed to preserve for our
review his contention that such testimony constituted inadmissible
inferential hearsay (see People v Piper, 21 AD3d 816, lv denied 5
NY3d 884; People v Pierre, 300 AD2d 1070, lv denied 99 NY2d 631).

Proof of Illegal Entry Insufficient to Establish Intent to Commit Larceny

In affirming a trial court’s pre-trial reduction of a burglary count to one
of criminal trespass, the Court, in People v Holmes 2008 NY Slip Op 02669
(4th Dept 3/21/2008), held that

The evidence before the grand jury, viewed in the light most
favorable to the prosecution (see People v Antonelli, 300 AD2d 312,
313, lv denied 99 NY2d 612, citing People v Manini, 79 NY2d 561), is
legally insufficient to support the burglary charge because the
indictment expressly set forth that defendant intended to commit a
larceny, and the People failed to present evidence from which the
grand jury could infer that he had that intent (see generally People
v Barnes, 50 NY2d 375, 379). Although "it is not necessary for the
People in a burglary prosecution to demonstrate the exact crime which
defendant intended to commit while unlawfully in the building . . .,
the prosecution in this case expressly limited its theory to one of
larceny, and, having done so, . . . the prosecution [is held] to this
narrower theory alone" (id.).

Insufficient Inquiry for a Valid Waiver of Appeal

2008-03-23T17:45:00.002-04:00

People v Vega 2008 NY Slip Op 02250 (3/14/2008)

The Fourth Department holds that a single inquiry to a defendant which fails to make clear that the loss of the right to appeal is not an automatic consequence of a guilty plea is insufficient to demonstrate a knowing and intelligent waiver of appeal:

we agree with defendant that his waiver of the right to appeal is invalid (see generally People v Lopez, 6 NY3d 248, 256). Supreme Court did not ask defendant during the plea colloquy whether he agreed to waive his right to appeal, and the prosecutor's single inquiry of defendant whether he understood that he was waiving his right to appeal is insufficient to "establish that [he] understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" (id.; see People v Phillips, 28 AD3d 939, lv denied 7 NY3d 761; People v Brown, 296 AD2d 860, lv denied 98 NY2d 767).

Unreasonable to Respond to Attack

2008-03-20T19:39:00.001-04:00

People v Mcclellan 2008 NY Slip Op 02271 (3/14/2008)

In holding that the proof was sufficient for a jury to find justification disproved, the Court held that even if a 17 year old African-American, who was walking with four African-Americans companions in a predominately Caucasian neighborhood, when five Caucasian men yelled racial epithets and initiated a physical confrontation,

actually believed that deadly physical force was necessary," it nevertheless supports a finding that defendant's belief was not reasonable under the circumstances (People v Wesley, 76 NY2d 555, 559; see People v Butera, 23 AD3d 1066, 1068, lv denied 6 NY3d 774, 832).

Failure to Raise Dispositive Statute of Limitations Defense Will Not Always Result in Finding of Ineffective Assistance of Counsel

2008-03-15T15:54:00.004-04:00

In People v Wise 2008 NY Slip Op 02264 (3/14/2008), the Fourth Department has held that under the circumstances of the case (in which the People on appeal conceded that a conviction for one of the counts was time barred and the Appellate Division dismissed the count) the failure of counsel to raise a dispositive statute of limitations defense did not deny the defendant his right to effective assistance of counsel.

Defendant further contends that defense counsel should have sought dismissal of the count charging him with endangering the welfare of a child because that count was time-barred, and that as a result he was denied his right to effective assistance of counsel. As the People correctly concede, that count is governed by the two-year statute of limitations (see CPL 30.10 [2] [c]), and it should have been dismissed as time-barred (see People v Rogner, 265 AD2d 688). We therefore modify the judgment accordingly.

We further conclude under the circumstances of this case, however, that defendant was not thereby denied his right to effective assistance of counsel. "[T]he failure to raise a defense as clear-cut and completely dispositive as a statute of limitations . . ., in the absence of a reasonable explanation for it, is hard to reconcile with a defendant's constitutional right to the effective assistance of counsel" (People v Turner, 5 NY3d 476, 481). Nevertheless, we conclude that defense counsel's single omission did not "so seriously compromise[] [the] defendant's right to a fair trial [as to] qualify as ineffective representation" (see People v Hobot, 84 NY2d 1021, 1022; see generally People v Flores, 84 NY2d 184, 187-189). Contrary to defendant's contention, the incidents underlying the count of endangering the welfare of a child, although subject to a Ventimiglia hearing, would nevertheless have been admissible as probative of the sexual gratification element of the sexual abuse charges (see generally People v Ortiz, 16 AD3d 831, 833, lv denied 4 NY3d 889; People v Graves, 8 AD3d 1045, lv denied 3 NY3d 674; People v Evans, 259 AD2d 629, lv denied 93 NY2d 924), and we note that the count at issue is now being dismissed as time-barred.

Useful Molineux Holding

2008-03-15T15:31:00.002-04:00

People v Pittman 2008 NY Slip Op 02236 (3/14/2008)

In a case involving an attempted murder of a police officer, a divided Court issued an excellent Molineux holding. First the Court held that evidence of a prior possession of a weapon was not “‘sufficiently unique to be probative on the issue of identity’ (People v Beam, 57 NY2d 241, 252).” Next it held that the evidence was not probative on the issue of motive “inasmuch as there was no evidence from which the jury could infer that the 1998 incident provided the motive underlying the instant offenses (see generally People v Namer, 309 NY 458, 462). “

Then the Court held that

evidence of the 1998 incident should have been precluded insofar as it was used to prove intent because, assuming that the People established that defendant fired at the officer, "intent may be easily inferred from the commission of the act itself" (People v Alvino, 71 NY2d 233, 242; see also People v McKinney, 24 NY2d 180, 184-185).

Finally, and perhaps most importantly, the Court held that even

assuming, arguendo, that evidence of the 1998 incident is probative of some issue other than defendant's criminal propensity, we conclude that its potential for prejudice outweighed its probative value(see generally People v Hudy, 73 NY2d 40, 55; People v Santarelli, 49 NY2d 241, 250, rearg denied 49 NY2d 918). Indeed, we conclude that the evidence of the 1998 incident was, at best, "of slight value when compared to the possible prejudice to" defendant (People v Allweiss, 48 NY2d 40, 47), and the error in the admission of that evidence cannot be deemed harmless (see People v Kocyla, 167 AD2d 938, 939; see generally People v Crimmins, 36 NY2d 230, 241-242).

Justice Smith dissented. In part, she would have held that the facts of the earlier incident and the one at trial showed a sufficiently unique modus operandi that rendered this evidence probative on the issue of identity, and the identity of the perpetrator was at issue.

Requirements and Limits on Ordering of Restitution

2008-03-15T15:18:00.004-04:00

Two helpful decisions on restitition.

People v Maliszewski 2008 NY Slip Op 0223 (3/14/2008) is one decision with two good holdings regarding the imposition of restitution.

First, the Court held that

We agree with defendant that the court erred in enhancing his sentence of incarceration based upon his failure to pay restitution arising from previous convictions. "Restitution may be based only on the offense for which a defendant was convicted, as well as any other offense that is part of the same criminal transaction or that is contained in any other accusatory instrument disposed of by any plea of guilty' " (People v Visser, 256 AD2d 1106, 1107, quoting Penal Law § 60.27 [4] [a]; see People v Casiano, 8 AD3d 761, 762-763; People v Diola, 299 AD2d 962, lv denied 99 NY2d 581).

Then, the Court held

In addition, defendant did not admit the amount of the burglary victim's loss, and the record is insufficient to support the court's finding with respect to the amount of restitution for that loss. The court therefore erred in failing to conduct a hearing on the issue of restitution for the burglary victim's loss, pursuant to CPL 400.30 (see People v Dibble [appeal No. 2], 277 AD2d 969, 970)

.
In People v Braswell 2008 NY Slip Op 02255 (3/14/2008) the Court agreed with an unpreserved claim that that the court erred in imposing restitution inasmuch as it was not part of the plea agreement and, pursuant to its interest of justice discretion, concluded that the sentencing court should have afforded defendant the opportunity to withdraw his plea before ordering him to pay restitution.

Strict Construction of Requirement of Notice of Right To Testify at Grand Jury

2008-03-15T15:15:00.004-04:00

People v Pattison 2008 NY Slip Op 02230 (3/14/2008)

Defendant further contends that County Court erred in denying his motion to dismiss the indictment based on the violation of his right to testify before the grand jury without conducting a hearing. We agree with defendant that a hearing is required. It is undisputed that, pursuant to CPL 190.50 (5) (a), defendant's attorney served the People with written notice of defendant's intention to testify before the grand jury when the matter was presented. The record contains correspondence between the prosecutor and defense counsel concerning the possibility of a plea agreement prior to presentment. The prosecutor stated therein that the "grand jury will convene in the middle of January, 2003" and, in a subsequent letter, the prosecutor stated that the "grand jury will proceed as scheduled." We conclude that the court erred in determining that, based on those letters, defendant was provided with adequate notice of the time and place of the grand jury proceeding, sufficient to satisfy the statutory notice requirements. CPL 190.50 (5) (b) expressly provides that, "[u]pon service upon the district attorney of a notice requesting appearance before a grand jury . . ., the district attorney must . . . serve upon the applicant . . . a notice that he [or she] will be heard by the grand jury at a given time and place" (emphasis supplied). Contrary to the court's determination, those letters do not establish the People's compliance with the statute. Although the prosecutor may have provided oral notice of that information, there is no evidence in the record that the prosecutor in fact did so. We therefore hold the case, reserve decision and [*2]remit the matter to County Court for a reconstruction hearing to determine whether the People complied with CPL 190.50 (5) (b).

A Reminder of the Risks in Appeals from Guilty Pleas

2008-03-15T14:51:00.003-04:00

Two recent decisions from the Fourth Department remind us of the potential dangers in appeals form guilty pleas.

People v Hamilton 2008 NY Slip Op 02234 (4th Dept 3/14/2008)

The Fourth Department considered an unpreserved claim regarding an improperly imposed predicate sentence.

After some good language worth noting and citing in future briefs

that defendant's waiver of the right to appeal is invalid inasmuch as the court's minimal inquiry was "insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice' " (People v Brown, 296 AD2d 860, lv denied 98 NY2d 767)

the Court considered unpreserved claims that the defendant was improperly sentenced as a second violent felon. The good news is that

As the People correctly concede, defendant's contention has merit. The sentences for the prior convictions were beyond the 10-year time limit, and the court failed to make a finding that the tolling provision applied (see Penal Law § 70.04 [1] [b] [v]). In addition, the People failed to establish the periods during which defendant was incarcerated (see People v Gines, 284 AD2d 134), and the persistent violent felony offender information failed to list the applicable sentences for tolling purposes (see CPL 400.15 [2]; 400.16 [2]). Finally, we agree with defendant that the court failed to determine whether his convictions in other jurisdictions qualify as violent felony offenses under New York law (see generally People v Muniz, 74 NY2d 464, 467-470).

But the cautionary tale is in the relief granted

We therefore modify the judgment by vacating the sentence. We note that the sentence was imposed following defendant's plea of guilty to a superior court information upon a waiver of indictment, and the People conditioned their agreement to that waiver upon the court's imposition of the agreed-upon sentence. Thus, we remit the matter to County Court to resentence defendant or to "entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety" (People v Irwin, 166 AD2d 924, 925, citing People v Farrar, 52 NY2d 302, 307-308). Further, should the People be so disposed, they may withdraw their consent to the waiver of indictment (see CPL 195.10 [1] [c]; People v Terry, 152 AD2d 822, 823).

Hopefully, Mr. Hamilton was aware of this possibility.

Similar issue and holding in People v Williams 2008 NY Slip Op 02248
93/14/2008).

Sentences are Imposed by Judges and Not by DOCS

2008-03-09T20:50:00.007-04:00

Norm Effman lived an appellate attorney's dream. On the morning of February 20, 2008 he argued two cases challenging the authority of the Department of Corrections to add a term of post release supervision {PRS} to a sentence when the sentencing judge has not imposed PRS. That afternoon, the Fourth Department issued two decisions (People ex rel. Burch v Goord 2008 NY Slip Op 01445 and People ex rel. Eaddy v Goord 2008 NY Slip Op 01446 ), in which the Court, expressly disavowed to of its prior decisions,granted Norm's clients' their requested releife, and joined the Second Circuit in holind ghtat judges and judges alone, impose sentences:

Supreme Court relied in part on our decisions in People v Hollenbach (307 AD2d 776, lv denied 100 NY2d 642) and People v Crump (302 AD2d 901, lv denied 100 NY2d 537). We reverse, however, because we agree with the decision of the Second Circuit Court of Appeals that, in the event that a court does not impose a period of postrelease supervision as part of a defendant's sentence, the sentence has no postrelease supervision component (Earley v Murray, 451 F3d 71, 76, reh denied 462 F3d 147; see People ex rel. [*2]Gerard [Colarusso] v Kralik, 44 AD3d 804, 804-805; People v Martinez, 40 AD3d 1012; see generally Hill v United States ex rel. Wampler, 298 US 460, 464). As the Court of Appeals has stated, postrelease supervision is a "direct consequence of a criminal conviction" (People v Catu, 4 NY3d 242, 244; see People v Louree, 8 NY3d 541, 545), and we conclude that it therefore must be expressly imposed by the court (see Earley, 451 F3d at 76). To the extent that our prior decisions in Hollenbach and Crump hold otherwise, they are no longer to be followed (see People ex rel. Eaddy v Goord, ___ AD3d ___ [Feb. 20, 2008]).

People ex rel. Burch v Goord [2008 NY Slip Op 01445].

Recent Court of Appeals Decisions on Crawford v Washington (541 US 36 [2004])

2008-03-09T20:02:00.003-04:00

On February 19, 2008, the Court issued decisions in three cases with Crawford issues, two opinions regarding the application of Crawford. In so doing, the Court took a nuanced middle ground regarding the tests to be used in deciding whether evidence is testimonial and is, thus, subject to the confrontation requirements for testimonial evidence set forth in Crawford. The Court also seemed to rewrite a statute to mean what the Court believed the legislature would have intended it to mean, rather than what it actually says. That saves the trouble of the legislature having to actually amend the statute to avoid a perhaps unintended consequence of the statute as written. It also raises the question of why we pay legislators if judges can rewrite statutes.

First, in People v Rawlins and People v Meekins ( __ NY3d__. 2008 WL 423397, 2008 N.Y. Slip Op. 01420, 2/19/2008), the Court considered two categories of evidence upon which courts throughout the country are split as to how Crawford applies: DNA reports and , fingerprints, comparisons.

As the Court had previously done in People v Pacer [6 NY3d 504] the Court rejected the argument that there is a per se business records exception to Crawford, particularly given New York’s definition of the business exception as including police and governmental agencies.

Next the Court rejected the test for testimonial simply being the expectation of the declarant hat the statement would be used in court. Rather the New York Crawford test for testimonial has three primary factors:

we look not only to [1] the interrogator's primary purpose in questioning,
but also, [2] in declarant's view, to the purpose the statement was intended to serve, and to [3] the motivation for the statement.

Other courts have also considered these 3 factors:
1. Was the statement made in circumstances that suggest is likely future use to establish a fact at a criminal prosecution?
2. Was statement similar to that which witness would make on the stand
3. Was the statement made during an investigation and not an ongoing emergency

What happens when you apply the Court’s test?

Fingerprint comparison reports –
In People v Rawlins [37 AD3d 18] the 1st Dept had held that a fingerprint examiner's reports

qualified as nontestimonial business records, and thus did not violate defendant's right of confrontation.

(Rawlins, 37 AD3d 183 [1st Dept 2007]).

Of course, the Court of Appeals, in People v Pacer [6 NY3d 504], had held that the mere fact that a document is a "business record" does not answer the question of whether a document is "testimonial" under Crawford. But the First Department distinguished Pacer as follows:
Unlike the affidavit of mailing in People v Pacer, which the Court of Appeals found to be testimonial notwithstanding the business records exception contained in Crawford,
(1)

the fingerprint examination reports were not prepared for the specific purpose of litigation.

(2)

On the contrary, they were prepared in the regular course of an investigation in progress, at a time when defendant had not yet been arrested.

(3)

Moreover, the reports at issue were introduced through the testimony of a live witness subject to confrontation, albeit not the author of those particular reports.

The question as to whether there is a meaningful distinction between a report prepared for "the specific purpose of litigation" and one made during "an investigation in progress" was answered by the Court of Appeals, when it rejected this reasoning.

Rawlins was a prosecution for a series of burglaries, and the fingerprint examiner's report compared prints lifted at one of the crime scene to the defendant's known prints, and opined that the prints matched. The print comparison was requrested by the police. Regardless of whether the defendant was technically under arrest at that point, what other purpose would the fingerprint examiner's report serve other than to establish perpetrator's guilt at a subsequent trial?

Applying this logic, in Rawlins, the Court of Appeals held that fingerprint comparisons are testimonial and the fact that they are kept in the ordinary course of business of the police is irrelevant.

However, in this cases in which there was live testimony regarding fingerprint comparisons involving some of the other charged burglaries the error in the admission was held to be harmless.

Before discussing the Court's holding in Meekins decided in th same opiion with Rawlins it it worth mentioning the Court's other decision involving fingerprints and Crawford, decided the same day as Rawlins.

In People v Leon ( __ NY3d __, 2008 WL 420022, 2008 N.Y. Slip Op. 01421, 2/19/2008), the Court held that Crawford does not apply to the admission fo fingerprint comparisons at predicate sentencing procedures despite the language of CPL 400.15(7)(a) that the evidence at such hearing be subject to "the rules applicable to a trial of the issue of guilt." The Court explained that

[b]efore Crawford, there was little doubt that affidavits based on fingerprint comparisons were admissible at predicate sentencing hearings (see CPL 60.60[2]; CPLR 4520)...To agree with defendant's broad construction of section 400.15(7)(a) is to presume too much of the Legislature's intent, given the timing of the enactment of section 60.60(2). Testimonial hearsay under section 60.60(2) continued to be admitted after the passage of section 400.15, both at trial and at predicate felony hearings (although Crawford now places new restrictions at trial). Because, in our view, Crawford does not apply at sentencing proceedings, we decline to construe section 400.15 along with other hearsay statutes, which have always operated in tandem, in a way that yields unworkable results.

So, rather than hold that the statute must be interpreted to mean what its unambiguously language states and to suggest to the legislature that it might want to consder amending the provision to exclude fingerprint records at sentencing, the Court effectively held that we will just pretend the statute was written to mean what the legislature probably wanted it to say.

By the way the Fourth Department had applied the statute as written and held that fingerprint affidavits at predicate hearings are inadmissible under Crawford (see People v Williams [30 AD3d 980]). Oh well.

The other Crawford case decided by the Court of Appeals, in the same opinion as Rawlins, was People v Meekins ( __ NY3d__. 2008 WL 423397, 2008 N.Y. Slip Op. 01420, 2/19/2008), in which the Court held that DNA profiles, as opposed to DNA comparisons, are not testimonial. The Court explained

the testing and procedures employed in this case were "neither discretionary nor based on opinion" nor did they concern the exercise of fallible human judgment over questions of cause and effect. This is not to say that errors could not have been made in the testing procedure itself. But those errors, if any, are not the product of "testimony" as we understand that term. Because the Gene Screen technicians only contemporaneously recPeople v Williamsorded the procedures employed and "state[d] the results of a well-recognized scientific test" (id.) — for the purpose, we note, of permitting subsequent reviewers to verify their work — a supervising witness under oath familiar with the laboratory's requirements pursuant to rigid accreditation could illuminate on cross examination whether protocol was followed. Further, it is of no moment that the Gene Screen technicians knew or had every reason to know (because they were working on a rape kit) that their findings could generate results that could later be used at trial, nor that Gene Screen was performing work for law enforcement. Neither the prosecution nor law enforcement could have influenced the outcome; the government's involvement is inconsequential. Finally, the documents prepared by the Gene Screen technicians were not directly accusatory; none of them compared the DNA profile they generated to defendant's.

Thus, the Court distinguished between DNA comparisons and the testing which produces the DNA profiles. How persuasive is this reasoning? Why wouldn't errors in the preparation of the profile be testimonial and thus necessarily subject to confrontation. As the Court noted, this issue has divided Courts in other jurisdictions. But unless and until the United States Supreme Court holds otherwise, this is the law now in New York.

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

2008-02-10T19:33:00.000-05:00

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?

2008-02-10T19:27:00.000-05:00

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?

2008-02-10T19:19:00.000-05:00

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?

2008-02-10T19:14:00.000-05:00

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

2008-02-10T19:11:00.000-05:00

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

2008-02-10T19:04:00.000-05:00

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

2008-02-10T18:56:00.000-05:00

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?

2008-02-10T18:50:00.000-05:00

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.

AD 4th Department Decisions of February 1, 2008

2008-02-03T22:04:00.000-05:00

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.

AD4: Decisions issued December 21, 2007

2007-12-22T09:01:00.000-05:00

People v Gause [2007 NY Slip Op 10193] [available here]

Mr. Gause was charged with intentional and depraved indifference murder. County Court instructed the jury to consider either count first and, if it reached a verdict of guilty on that count, it was not to consider the remaining count. The jury considered [the depraved indifference count first, found defendant guilty, and did not reach the intentional murder count. Although the issue was not preserved, the Court exercised its interest of justice jurisdiction and held that the

defendant's conduct in repeatedly striking the victim's head with a metal pipe after the victim was shot in the head, neck and chest by an accomplice does not constitute a depraved indifference murder (see generally People v Suarez, 6 NY3d 202, 212-213; People v Payne, 3 NY3d 266, 271-272, rearg denied 3 NY3d 767; People v Dickerson, 42 AD3d 228).

However, the court ruled that

Because the jury never considered the intentional murder count, we agree with the People that double jeopardy does not preclude a new trial on that count (see People v Charles, 78 NY2d 1044, 1047; People v Hernandez, 41 AD3d 358, 360; People v Suarez, 40 AD3d 143, 145-[*2]149, lv dismissed 8 NY3d 991), and that a new trial on that count is the appropriate remedy in this case.

The Court also noted

that the certificate of conviction incorrectly reflects that defendant was acquitted of intentional murder in the second degree, and it must therefore be amended to reflect that the jury did not address that count....

People v Barry, [2007 NY Slip Op 10203] [available here]

Where the People presented evidence that defendant took the medication from the pharmacy over a period of 10 months for her personal use, to treat migraine headaches, and the issue in the case was whether these were separate petit larcenies or one ongoing scheme of grand larceny, it was error for the court to refuse to charge the jury that the People were required to prove that the defendant had a single, ongoing intent to steal the medication in order to find her guilty of grand larceny in the third degree.

Defendant is correct that, in order to find her guilty of separate acts of theft in a single count of grand larceny, the jury had to find that she had a "single intent, carried out in successive stages" (People v Rossi, 5 NY2d 396, 401; see People v Tighe, 2 AD3d 1364, 1365, lv denied 2 NY3d 747; People v Fayette, 239 AD2d 696, 697, lv denied 90 NY2d 904)... The court's failure to instruct the jury with respect to that distinction prevented the jury from properly evaluating the evidence.

People v Ellison, [2007 NY Slip Op 10204] [available here]

The fact that the police might possess a search warrant which, in fact authorizes the police to conduct a search of a particular apartment cannot render the search of that apartment lawful when none of the police conducting the search were aware of the content of the warrant.

[T]he court should have suppressed the physical evidence seized by the police during the search of his apartment, on the ground that the officers at the apartment began to search the premises without the requisite knowledge of the contents of the warrant (see People v Okun, 135 AD2d 1064, 1065-1066; People v Carson, 99 AD2d 664, 665). Although the officers were permitted to enter defendant's residence once they learned that the warrant was issued and was en route (see People v Mahoney, 58 NY2d 475, 479), here they exceeded their authority by beginning to search defendant's apartment before the undercover officer arrived at the apartment with the search warrant (see Carson, 99 AD2d at 665). Contrary to the People's contention, there is no evidence that the supervising sergeant was aware of the actual contents of the warrant after it was signed by the issuing judge. The fact that the judge signed the warrant as presented and placed no limitations on it cannot in hindsight be used to support the People's contention that the officers at defendant's apartment were aware of the contents of the warrant as issued by the judge. Further, the fact that the warrant may have been what the People characterize as 'a routine search warrant application" does not provide the police with the requisite knowledge of its contents in order to begin a search before having the warrant in hand.'

People v Mc Coy, [2007 NY Slip Op 10208][available here]

Despite a voluniminous motion setting forth data and expert statistical analysis, as well as anectotal affidvits of attorneys, showing that African Americans have been repeatedly and consistently significantly underrepresented in the jury poolin Monroe County the Court again rejected a contention of a defendant that the court erred in denying his motion to dismiss the jury pool on the ground that it did not reflect a fair cross section of the community on the ground that he had

failed to set forth sufficient facts demonstrating a systematic exclusion of African-Americans from the jury pool" (People v Owens, 39 AD3d 1260, 1260, lv denied 9 NY3d 849; see People v Cotton, 38 AD3d 1189, lv denied 8 NY3d 983.

It appears that the Court is applying a requirement that there be a showing of purposefulness or intent to under-represent African Americans.

People v Powless
[2007 NY Slip Op 10209], [available here]

The Court ruled for the defendant, and rejected the argument of the People based on People v Louree, 8 NY3d 541) in permitting a CPL 440 motion to vacate a plea due to failure of the court to advise that he was also being sentenced to post-release supervision.

County Court properly vacated the judgment on the ground that defendant was not advised before entering his plea that he would be subject to a five-year period of postrelease supervision (see § 70.45; People v Catu, 4 NY3d 242, 244-245). Contrary to the People's contention, defendant's motion is not barred by CPL 440.10 (2) (c) inasmuch as the court did not explicitly impose postrelease supervision at the time of sentencing, and defendant did not become aware of its imposition until after his direct appeal from the judgment of conviction was decided. Thus, defendant did not "unjustifiabl[y]" fail to raise the issue on his direct appeal (id.; cf. , 545-546).

the Court also refused to consider the People's contention, raised for the first time at oral argument of this appeal that it should apply the reasoning of the Second Circuit Court of Appeals in Earley v Murray (451 F3d 71, reh denied 462 F3d 147) to this case.

We do not address that contention, in the interest of fairness to defendant. That case was decided approximately six months before the People submitted their brief on appeal, which contained no reference to that case, nor did they submit a supplemental brief addressing the applicability of that case prior to oral argument of this appeal.

AD4: Decisions issued November 23, 2007

2007-11-25T17:46:00.000-05:00

People v Cruz, 2007 NY Slip Op 09282 [Available Here]

At defendant’s first trial, which ended in a mistrial, defense counsel unsuccessfully raised a Bruton violation objection (see Bruton v United States, 391 US 123, 135-137) to the admission of prejudicial statements by a non-testifying co-defendant. At defendant’s second trial these statements were admitted without objection. On appeal the defendant argued that it was error to allow the admission of these statements. The Court agreed and reversed on both Bruton and Crawford grounds, despite the absence of objection, as a matter of discretion in the interest of justice.

A defendant's right of confrontation is violated where the confession of a nontestifying codefendant that facially incriminates the defendant is introduced at their joint trial (see Bruton v United States, 391 US 123, 135-137; see also Richardson v Marsh, 481 US 200, 207). "When an extrajudicial statement by one defendant contains incriminating references to another defendant, admission of that statement upon their joint trial deprives the nonconfessing defendant of his right to confront the witness against him unless that witness also testified at the joint trial" (People v Wheeler, 62 NY2d 867, 869, citing Bruton, 391 US 123). "If the confession, however, can be effectively redacted so that the jury would not interpret its admissions as incriminating the nonconfessing defendant, it may be utilized at the joint trial" (id.). Here, although defendant was implicated by use of a neutral pronoun rather than by name, the evidence before the jury established that both victims saw three robbers and one of the victims identified the robbers by name. Under the circumstances, there is no possibility that the incriminating references "would not necessarily be viewed by the jury as referring to defendant" (id.).....
Defendant further contends that reversal is required based on a Crawford violation. We agree. The out-of-court statements of the codefendant were testimonial in nature, and they therefore were inadmissible because the codefendant was not unavailable and defendant had no prior opportunity to cross-examine him (see Davis v Washington, ___ US ___, ___, 126 S Ct 2266, 2273-2274; People v Kyser, 26 AD3d 839).

People v Johnson, 2007 NY Slip Op 09273 [Available Here]

In an apparent issue of first impression, the Court holds that children depicted in pornographic photographs which were downloaded by the defendant who pled guilty to Attempted Promotion of a Sexual Performance by a Child are victims for purposes of the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.) statute, even where the defendant otherwise has no contact with the children. The SORA statute itself does not define the term victim. Thus, the defendant could be assessed risk assessment points based on the age and his lack of relationship with the children depicted in the photographs.

People v Givans, 2007 NY Slip Op 09281 [Available Here]

First, the Court reversed and ordered a new trial on the conviction on counts of criminal possession of a controlled substance in the second degree and conspiracy in the second degree because of the failure to grant challenges for cause regarding prospective jurors who stated that they would favor law enforcement and did not subsequently give unequivocal assurances that they were able to reach a verdict based entirely upon the court's instructions on the law.

Then, the Court addressed defendant's remaining contentions in the interest of judicial economy, and held that there had been three evidentiary errors at the defendant’s trial

We agree with defendant that the court erred in admitting a text message from a cellular telephone in evidence, inasmuch as the People failed to establish that the text message was ever read by defendant, or even retrieved by him, and they failed to establish the authenticity or reliability of the text message (see People v Johnson, 250 AD2d 922, 928-929, affd 93 NY2d 254; see also Prince, Richardson on Evidence § 4-203 [Farrell 11th ed]).

Further, the court erred in permitting the jury to access the entire contents of the cellular telephone and to view materials that were not admitted in evidence at trial (see People v Vizzini, 183 AD2d 302, 307-308; cf. People v Stanley, 87 NY2d 1000).

Finally, the prejudicial effect of testimony concerning uncharged crimes committed by defendant, i.e., his past drug sales, as well as his alleged familiarity with task force vehicles and his alleged threat to kidnap and feed drugs to the District Attorney's children, far outweighed the probative value of that testimony, and the court therefore erred in admitting that testimony (see generally People v Alvino, 71 NY2d 233, 241-242; People v Ventimiglia, 52 NY2d 350, 359-360; People v Molineux, 168 NY 264, 291-294).

(Congratulations to Linda Campbell who argued this appeal and persuaded the Court to find four errors in one case.)

People v Collins, 2007 NY Slip Op 09289 [Available Here]

County Court advised the defendant that he was precluded from raising the defense of intoxication to a charge of depraved indifference murder. That was true under the existing law at the time of defendant’s guilty plea (see generally People v Register, 60 NY2d 270, 275-276, cert denied 466 US 953; People v Hilligas, 291 AD2d 926, lv denied 98 NY2d 651). However, the law has since changed (see generally People v Feingold, 7 NY3d 288, 294; People v Coon, 34 AD3d 869, 870).

On appeal, defendant contends that he will be deprived of due process if the Court did not apply the current law in reviewing the factual sufficiency of his plea allocution, in view of his presently viable defense of intoxication. Although acknowledging that the defendant is correct that he is entitled to the application of current principles of substantive law upon his direct appeal from the judgment of conviction (see generally Policano v Herbert, 7 NY3d 588, 603-604), the Court rejected that contention.

Nevertheless, even assuming, arguendo, that we agree with the Third Department that intoxication is a defense to depraved indifference murder (see Coon, 34 AD3d at 870), we conclude that reversal is not required. The challenge by defendant to the factual sufficiency of the plea allocution does not survive his valid waiver of the right to appeal (see People v Donahue, 21 AD3d 1359, lv denied 6 NY3d 775; People v Spivey, 9 AD3d 886, lv denied 3 NY3d 712; People v DeJesus, 248 AD2d 1023, lv denied 92 NY2d 878). In any event, defendant failed to preserve that challenge for our review by moving to withdraw his guilty plea or to vacate the judgment of conviction (see People v Emm, 23 AD3d 983, 984, lv denied 6 NY3d 775; People v Perry, 21 AD3d 1352, lv denied 5 NY3d 884; see generally People v Lopez, 71 NY2d 662, 665), and nothing in the plea allocution alerted the court that defendant had a viable defense of intoxication, thereby placing the court under a duty, prior to accepting the plea, of inquiring into whether defendant was fully aware of and voluntarily waiving any such defense (see Lopez, 71 NY2d at 666). Defendant likewise failed to preserve for our review his contention that his plea was not voluntarily, knowingly, and intelligently entered (see DeJesus, 248 AD2d 1023) and, in any event, that contention lacks merit.

Considering that the Court advised the defendant that intoxication is not a defense to the charge, it is hardly surprising that the plea allocution did not alert the court that defendant had a viable defense of intoxication. Rather, the Court's comments effectively dissuaded the making of any such record.

Disorderly Conduct requires more than a mere inconvenience of pedestrians

2007-11-23T14:08:00.000-05:00

From Jim Eckert:

The Court of Appeals ruled last week on the sufficiency of an information charging Disorderly Conduct (standing on the sidewalk) and resisting arrest.

In People v Jones, __ NY3d __ [11/20/17] the court reaffirmed that an information has to allege sufficient facts to make out a prima facie case. The allegation which was held to be insufficient was:

he observed defendant along with a number of other individuals standing around at the above location, to wit a public sidewalk, not moving, and that as a result of defendants' [sic] behavior, numerous pedestrians in the area had to walk around defendants [sic] . . . deponent directed defendant to move and defendant refused and as deponent attempted to stop defendant, defendant did run.

The Court explained why these factual allegations in the information do not meethe burden on the People to make out its prima facie case for the offense charged in the text of an Information (CPL 100.15 [3] and CPL 100.40 [1])

Nothing in the information indicates how defendant, when he stood in the middle of a sidewalk at 2:01 a.m., had the intent to or recklessly created a risk of causing "public inconvenience, annoyance or alarm." The conduct sought to be deterred under the statute is "considerably more serious than the apparently innocent" conduct of defendant here (People v Carcel, 3 NY2d 327, 331-332 [1957]). Something more than a mere inconvenience of pedestrians is required to support the charge ( id. at 332). Otherwise, any person who happens to stop on a sidewalk -- whether to greet another, to seek directions or simply to regain one's bearings -- would be subject to prosecution under this statute ( see People v Nixon, 248 NY 182, 185-188 [1928][Those congregating on the street display "atrociously bad manners" by "discommod[ing] some other persons" but such conduct alone does not necessarily give rise to disorderly conduct]). 22 Both Carcel and Nixon involved Penal Law § 722, the predecessor statute to Penal Law § 240.20, which provided in part that "[i]n cities of five hundred thousand inhabitants or over any person who, with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned . . . congregates with others on a public street and refuses to move on when ordered by the police" is guilty of disorderly conduct. Thus, as the information fails to set forth a prima facie case of disorderly conduct under Penal Law § 240.20 (5), the accusatory instrument is jurisdictionally defective and must be dismissed.

Also, since those allegations were insufficient, the charge of Resisting Arrest also had to be dismissed, since without sufficient facts for Disorderly Conduct, the information was also insufficient to show that the arrest was authorized.

As the information failed to allege sufficient facts to support the underlying disorderly conduct charge, those facts could not be deemed sufficient to allege that the arrest was "authorized" as required under Penal Law § 205.30.

I Think I Just Asked For An Attorney

2007-11-18T21:28:00.000-05:00

When a suspect being questioned tells the police that “I think I need an attorney” and the police officer writes in his notes that the suspect “asked for” a lawyer, there is no support for a holding that the request for counsel was equivocal. That apparently non-exceptional statement is the holding of the Court of Appeals in People v Porter, _ NY3d _ [11/15/07]. What makes it worth noting is that a divided Appellate Division, Fourth Department ruled otherwise (Here).

The majority’s description of the facts omitted any mention of the officer’s notes. By contrast, the dissenting opinion of Justice Gorski, not only mentioned the police officer's notes, but explained that they reflect his understanding of what the suspect’s statement - that he had "asked for" an attorney. Justice Gorski’s dissent also pointed out that “.. in advising defendant that his statement did not sufficiently invoke his right to counsel, the officer effectively dissuaded defendant from further efforts to invoke his right to counsel.”

It should be noted that the Court of Appeals did not hold that interrogation must cease every time a suspect being questioned by the police says “I think I need an attorney.” Rather, the Court held that

This is not to say that utterance of the words defendant used would unequivocally invoke the right to counsel in every instance. But on this record, where there were no additional facts upon which a contrary inference could be drawn, further inquiry by the police was not permitted.

More decisions from November 9, 2007

2007-11-13T19:46:00.000-05:00

People v Adams, 2007 NY Slip Op 08571 [4th Dept 11/09/07] - holding that

the court erred in increasing defendant's sentence from concurrent to consecutive terms after he refused to sign the no-contact order of protection. That "increase cannot be justified under sentencing procedures nor supported under the guise of punishment for contempt of court" (People v Culpepper, 33 NY2d 837, 838, cert denied 417 US 916).

However, this decision is also a reminder that a defendant who received an unlawfully low sentence might want to think twice before appealing:

we conclude that the sentence is illegal because it was not in compliance with Penal Law § 70.06 (4) (b). The court sentenced defendant to terms of 2 to 7 years on the burglary [*2]count and 1 to 4 years on the criminal contempt count but, pursuant to section 70.06 (4) (b), the minimum period of imprisonment for an indeterminate sentence must be one half of the maximum imposed (see generally People v Chappelle, 282 AD2d 834).

People v Huggins, 2007 NY Slip Op 08619 [4th Dept 11/9/07] -- pointing out a limit on waivers of appeal:

Defendant's further contention that the enhanced sentence is unduly harsh and severe also is not encompassed by the waiver of the right to appeal "because the court failed to advise defendant of the potential period of incarceration that could be imposed" for an enhanced sentence (People v Trisvan, 8 AD3d 1067, lv denied 3 NY3d 682; cf. People v Jackson, 34 AD3d 1318, lv denied 8 NY3d 923; see generally People v Lococo, 92 NY2d 825, 827).

People v Mills, 2007 NY Slip Op 08573 [4th Dept 11/09/07] -- reversing for failure to charge justification based on a choice of evils defense:

Defendant testified that he and another passenger in the vehicle were arguing and subsequently engaged in a fistfight outside the vehicle. When a group of men gathered around the fistfight, defendant became fearful that he would be attacked by the group, whereupon he entered the vehicle and drove from the scene. County Court erred in denying defendant's request for a justification charge. Considering the evidence in the light most favorable to defendant, we conclude that there is a reasonable view of the evidence that defendant's conduct was justified "[u]nder the choice of evils' theory of Penal Law § 35.05 (2)" as a means to avoid an imminent attack (People v Maher, 79 NY2d 978, 981; see People v Padgett, 60 NY2d 142, 145-146; People v Newman, 3 Misc 3d 361, 363).

Must IAC Claims Be Preserved?

2007-11-12T16:48:00.000-05:00

In People v Jones, (55 NY2d 771 [1981]), the Court of Appeals held that claims of ineffective assistance of counsel (IAC) may be raised for the first time on appeal. A contrary holding would penalize a defendant who received ineffective assistance for the failure of the deficient counsel to preserve the issue of ineffectiveness. Since few ineffective attorneys are likely to preserve the issue of their ineffectiveness, virtually all IAC claims (including those with merit) would be unpreserved and unreviewable. Subsequently, the Court in People v Angelakos (70 NY2d 670 [1987]), cited Jones in reviewing an unpreserved claim of IAC in an appeal from a guilty plea.

Recently, however, the Appellate Divsion, Fourth Department, has held in a series of cases, such as People v Barra (2007 NY Slip Op 08644 [11/9/07]) and People v Fairman (38 AD3d 1346, lv denied 9 NY3d 865 [2007]), that claims of IAC have not been preserved for review where the defendant did not move to withdraw the plea or admission or to vacate the judgments of conviction based on the alleged denial of effective assistance of counsel. These Fourth Deparment decisions do not cite Jones or Angelakos. One wonders whether the Fourth Department is applying this preservation requirement even where the defendant did not have access to different counsel until one was assigned for the appeal.

Appellate Review of Bargained for Sentences

2007-11-11T20:52:00.000-05:00

In its November decisions, the Appellate Division, Fourth Department twice (here and here) held that

Where, as here, a "defendant effects a plea bargain and receives the precise sentence that was promised, he should not later be heard to complain that he received what he bargained for" (People v Chambers, 123 AD2d 270, 270; see People v Dixon, 38 AD3d 1242).

Considering that the Court of Appeals in People v Thompson, 60 NY2d 513 [1983] has expressly held that the Appellate Divisions have the authority to review even bargained for sentences, one might be curious about the holdings in Chambers and Dixon.

In People v Chambers, the First Department actually reduced the bargained for sentence, holding that

Ordinarily, of course, where defendant effects a plea bargain and receives the precise sentence that was promised, he should not later be heard to complain that he received what he bargained for (People v. McCullers, 40 AD2d 796, 797, affd 33 NY2d 806). Here, however, there are special circumstances deserving of recognition.

Dixon is a Fourth Department decision citing Chambers and People v. McCullers, 40 A.D.2d 796 [1972] in which the First Department held that

...the defendant received no greater sentence than it was understood he would receive. He cannot now complain because a promise was kept.

Of course McCullers was rendered more than a decade before the Court of Appeals in Thompson, for the first time clearly held that appellants can raise such claims and that intermediate appellate courts in New York do have the authority to reduce bargained for sentences. The only other case cited in Dixon is People v Northrup, 23 AD3d 1102 [4th Dept 2005], another Fourth Department case which cited only Chambers and McCullers as support for this holding.

These decisions of the Fourth Department neither cite nor distinguish Thompson or People v Delgado, 80 NY2d 780 [1992](in which the Court of Appeals again confirmed the Appellate Divisions' authority to reduce bargained for sentences).

Here is what the Court wrote in Thompson

...the Legislature has adopted procedures at the intermediate appellate level, conferring different authority to reduce sentences on the Appellate Divisions than has been granted to the individual Trial Judges.....
The Legislature has also prescribed the corrective action the Appellate Division must take if it decides that a sentence legally imposed is excessive under the circumstances of a particular case....Thus the Appellate Division was not bound, as it assumed, to afford the People the option of withdrawing their consent to the plea once it concluded in the exercise of its discretion that the sentence imposed was excessive. Its first order, simply reducing the sentence to a lesser term, was in accord with the relevant statute. It was also consistent with the well-established practice. The power of the Appellate Division to reduce a sentence, which it finds unduly harsh or severe, in the interest of justice and impose a lesser one has long been recognized in this State. It was originally exercised as an inherent power (see, e.g., People v. Miles, 173 App.Div. 179, 183-184, 158 N.Y.S. 819) and was later codified in section 543 of the Code of Criminal Procedure. When the Legislature adopted the current CPL in 1971 it again expressly authorized the practice, without substantive change (CPL 470.15, subd. 6, par. [b]; 470.20, subd. 6). The defendant did not, as the People urge, lose his right to seek appellate review of his sentence by pleading guilty....If the exercise of this power frustrates the People's expectations in cases involving negotiated sentences it is not the result of any change in the law. The statute is clear on its face and has been uniformly, albeit rarely, employed in the past. It presents a risk, although a minimal one, which presumably is taken into account or discounted at the time of the plea negotiations.

It appears that the recent jurisprudence of the Appellate Division, Fourth Department is inconsistent with this holding. It further appears that no other Appellate Division has held since Delgado that a defendant may not complain on appeal about the fairness of a bargained for sentence. Thus, these decisions might present an issue meriting the granting of leave to appeal.