AD4: more than mere residence required to prove defendant constructively possessed drugs found in roommate's dresser

People v Gautreauz-Perez, 2006 NY Slip Op 05519 [available here]

Defendant was charged with Criminal Possession of a Controlled Substance in the Third Degree after police found cocaine "in a closed dresser drawer" in her roommate's bedroom. She was convicted after trial; the Fourth Department reversed and held her conviction was not supported by legally sufficient evidence. From the decision:

The mere fact that defendant lived at the residence where the drugs were found is, without more, legally insufficient to establish that she exercised the requisite dominion and control over the drugs "by a sufficient level of control over the area in which the [drugs were] found". Indeed, the evidence at trial established that only male clothing and male shoes were found in the southeast bedroom and that a male roommate of defendant was involved in a drug deal previously observed by the officers while on surveillance.

(People v Gautreauz-Perez, 2006 NY Slip Op 05519.)

A reassuring case for anyone who is unwittingly sharing his or her apartment with a drug dealer.

AD4: "right to be left alone" alive and well in New York

People v Lobley, 2006 NY Slip Op 05444 [available here]

Police responded to a citizen complaint of drug dealing at a certain address in Buffalo, and saw defendant hanging out with a group of men on the stoop. One of the officers "made eye contact with defendant and asked him to 'stop', [and] defendant ran into the downstairs apartment of the residence." (People v Lobley, 2006 NY Slip Op 05444.) The police chased defendant and, after being let into the apartment by an unidentified woman, observed defendant with a gun inside the apartment. Not done yet, "Defendant threw the gun into the air and ran through the backyard." (Id. at __.) He was caught and arrested later. The trial court refused to suppress the gun, and the Fourth Department reversed. The People on appeal conceded that the police did not have the requisite "reasonable suspicion" to justify the initial chase of the defendant, but instead argued that "the illegal pursuit ended when the police reached the locked door and that, when the door was opened, the observation of the police of defendant holding a gun provided probable cause for his arrest." (Id. at __.) The AD4 rejected this bit of constructive legal time travel. After first noting that flight alone "or even in conjunction with equivocal circumstances" is insufficient to justify pursuit, the Court held,

When the officers first observed defendant, he was imply standing next to a group of men seated on the stoop, and '[d]efendant's later conduct cannot validate an encoutner that was not justified at its inception'. Indeed, "[i]f these circumstances could combine with flight to justify pursuit, then in essence the right to inquire would be tantamount to the right to seize, and there would, in fact, be no right "to be let alone."

(Id. at __.)

It is worth noting that the New York constitution does the heavy lifting here, as the U.S. Supreme Court has arguably held the mere fact of flight sufficient to justify police pursuit. (See Illinois v Wardlow, 528 US 119 [2000].)

Upon further review . . .

People v Linnan, 2006 NY Slip Op 05482 [available here

Back in November, 2005, the Fourth Department considered Paul Linnan’s appeal from his murder conviction. The transcripts from jury voir dire showed that a prospective juror indicated she would have a hard time remaining fair and impartial if forced to look at gruesome photographs. But instead of reversing Mr. Linnan’s conviction (based on the juror’s failure to give adequate unequivocal assurances of impartiality), the Fourth Department held decision and remanded to the trial court. Why? Because in their brief on appeal, “the People assert[ed] that the exchange attributed by the transcript to the prospective juror not challenged for cause ‘may well have’ involved the prospective juror challenged for cause, and that the prospective juror challenged for cause may thereby have rehabilitated herself as an impartial juror.” (People v Linnan, 23 AD2d 1013, 1013 [4th Dept 2005].) This seemed odd to me at the time.

So what happened on remand? The People “in effect conceded that the prospective juror challenged for cause was not the same prospective juror who made the expurgatory statements [...].” (People v Linnan, 2006 NY Slip Op 05482.) In other words, the People’s assertion in their first appellate brief was so much hog-wash, and the People conceded as much on remand. Meanwhile, Mr. Linnan’s reversal was delayed 8 months.

Save some for the rest of us

People v Carter, 2006 NY Slip Op 05448 [available here]

Even while waging an (ultimately) unsuccesful campaign for mayor of Rochester, defense attorney John Parrinello managed to get the Fourth Department to reverse his client's conviction for various counts of Sodomy--on four separate legal grounds. Way to hog the issues. The Fourth Department agreed with Mr. Parrinello that, 1) the trial court erred in refusing to allow Mr. Parrinello to present "testimony concerning the reputation of the victim" where a proper foundation was laid and Parrinello agreed "to limit his direct examination of the witnesses to the general reputation of the victim in the community for truth and veracity"; 2) the trial court "also committed reversible error in allowing the People to present the testimony of a witness concerning his sexual acts with defendant" where the sex acts were consensual; 3) the prosecutor engaged in misconduct during opening argument, summation and cross-examination of defense witnesses (i.e. continually referring to defendant as a dangerous sexual predator, among other things), and; 4) the search warrant was overbroad "because it allowed the police to obtain evidence not specifically connected to the alleged crimes related to the victim." (People v Carter, 2006 NY Slip Op 05448.)

Given the Fourth Department's multiple pro-defendant reversals in the June packet, and further given this case (that contains more grounds for substantive pro-defendant reversals than usually show up in a whole term's worth of decisions), I can only conclude that either, 1) the end is near, or 2) the Fourth Department will not reverse another conviction until April, 2010.

AD4: Crawford does not apply to suppression hearing

People v Brink, 2006 NY Slip Op 05428 [available here]

In a decision confirming what was already suspected, the Fourth Department held in People v Brink that the so-called "testimonial" rule of Crawford v Washington [541 US 36] is a trial right that does not apply at a pretrial suppression hearing. From the decision:

We reject the contention of defendant that Crawford v Washington applies to his pretrial suppression hearing and that reversal is required because his right of confrontation was violated at the hearing. As the Supreme Court has written, "[t]he right [of] confrontation is basically a trial right." Indeed, "the interests at stake in a suppression hearing are of a lesser magnitude than those in the criminal trial itself. At a suppression hearing, the [suppression] court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial."

(People v Brink, 2006 NY Slip Op 05428.)

Unlike the murkiness surrounding the definition of "testimonial", the Supreme Court has pretty consistently telegraphed that it will apply the Confrontation Clause formulation of Crawford only at trial. So the Fourth Department's decision refusing to apply Crawford at sentencing is no big surprise.

AD4: refusal to allow cross-examination concerning motive to fabricate rape allegations = denial of right to present a defense

People v Mc Farley, 2006 NY Slip Op 05447 [available here]

At his trial on allegations of raping a high school student, defendant Mc Farley attempted to elicit testimony that the complainant and her mom had a monetary motive for making the allegations, and that the complainant had commented to a friend (after watching the movie "Wild Things") that she would like to try falsely accusing somebody of rape. The trial court refused to allow defense counsel to explore these areas, and specifically restricted counsel's cross-examination accordingly. The Fourth Department reversed, holding that the trial court's ruling thwarted the defendant's right to present a defense. From the decision:

Defendant was entitled to explore his theory that the victim and her mother had a profit motive in accusing defendant of rape five months after the alleged rape occurred and his theory that the victim accused defendant of rape based on a movie she had seen.

[quotes from United States Supreme Court cases guaranteeing the right to present a defense and to cross-examine witnesses omitted]

Here, defendant sought to cross-examine a witness with respect to a statement by the victim's mother in which she had threatened to "sue." In addition, he sought to present testimony that the victim had watched the movie "Wild Things," which dealt with high school students who made false allegations of rape against a teacher, and that the victim had commented to a defense witness that she would like to "try it on somebody." "[E]xtrinsic proof tending to establish a reason to fabricate is never collateral," and the court erred in precluding defense counsel from presenting that proof.

(People v Mc Farley, cite.)

I'm sure there is a Denise Richards joke in here somewhere.

AD4: No cocaine, no arrest

People v Ortiz, 2006 NY Slip Op 05409 [available here]

The police stopped the vehicle driven by Mr. Ortiz after listening in on some phone calls where a sale of cocaine between Ortiz and a police informant was discussed. But despite this bit of intelligence, a search of Mr. Ortiz and his car turned up no cocaine. Undeterred, the police (there were five officers on the scene at this point) placed Mr. Ortiz in the back of a police cruiser and continued to question him. After some "accusatory" questioning, Mr. Ortiz consented to a search of his home (where cocaine was later found) and signed a statement admitting to possessing cocaine. The trial court refused to suppress the cocaine and the statement, and the Fourth Department reversed. From the AD4's opinion:

The record establishes that the police lacked probable cause for the roadside arrest inasmuch as the search of defendant's person and vehicle did not result in the recovery of any illegal substances or any other basis upon with to arrest defendant. [...] Indeed, we note that the People do not contend on appeal that the police had probable cause for a roadside arrest but, rather, they contend that the police arrested defendant only after drugs were found at his home following his consent to that search and defendant had signed a statement in which he admitted that he sold drugs. "The fact that the police were ultimately successful does not justify defendant's arrest. The police are not at liberty to arrest and hold a suspect while they search for evidence sufficient to justify their action."

(People v Ortiz, __ AD3d at __.)

A particularly nice aspect of this decision is that the Fourth Department found the defendant subject to a "roadside arrest" (i.e. in custody for purposes of triggering a full-blown probable cause analysis) when the defendant was placed in the back of the police cruiser at the scene. Notably, the Court went out of its way to note the defendant was not handcuffed and that he was "asked" (and not ordered) to "sit in the police vehicle." (Id. at __.) Nevertheless, the Court found defendant to be under de facto arrest at this point, and not subject to the amorphous, supposedly less onerous "investigatory detention" (justifiable on the less stringent showing of "reasonable suspicion"). Pegging the precise moment of de facto arrest is critical in this type of case, because only after a de facto arrest is shown is the probable cause requirement triggered. That the Fourth Department found a "roadside arrest" occurred even absent handcuffing or the use of coercion to get defendant into the police vehicle is encouraging.

Justice Pigott nominated to Court of Appeals

This past Friday, Governor Pataki announced his nomination to the Court of Appeals of Justice Eugene Pigott, Jr., currently presiding Justice of the Fourth Department. If confirmed, Justice Pigott will take the seat currently occupied by Judge G.B. Smith. The New York Law Journal has a nice article about the appointment here.

AD4: not all blue cars are created equal

People v Taylor, 2006 NY Slip Op 05429 [available here]

At about 10:30 p.m., a police radio call "reported that 'two male blacks' . . . had committed an armed robbery in the area of Conkey Avenue and were observed leaving the scene in a 'light blue Ford Contour'". (People v Taylor, cite.) About 2 1/2 hours later, police officers "observed a light blue Mercury Mystique containing two occupants at the intersection of Clifford Avenue and Conkey Avenue." (Id.) Although not able "to discern the race of the occupants", the police pulled over the Mystique with the stated intention to identify the occupants and question them about the robbery. (Id. at __.) The trial court upheld the stop, and the Fourth Department reversed; from the AD4 decision:

It is well settled that the police may stop a vehicle based upon a "reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime". [...] Here, the facts known to the police, along with any rational inferences to be drawn therefrom, were insufficient to establish reasonable suspicion that the driver or occupants of the vehicle had committed the robbery. Indeed, the stated purpose of the stop was to "identify the occupants of the vehicle" and to "ask them if they had possibly known anything" about the robbery, and we thus conclude that the stop was not based on the requisite reasonable suspicion.

(Id. at __ [citations omitted].)

As a someone who drives, I find it comforting that the Fourth Department has ruled that you cannot be stopped and questioned by the police for driving the same color car as a suspected criminal.

CA: trial court must charge jury that victim's prior threats may be used to determine initial aggressor

People v Petty, 2006 NY Slip Op 05232 [available here]

In an opinion that escaped my attention when it was handed down about a month ago, the Court of Appeals held that a trial court erred in failing to instruct the jury that a victim's prior threats could be considered by the jury not only in determining the reasonableness of defendant's conduct but also to determine whether the victim was the initial aggressor for justification purposes. Yes, I just started a post with a 66-word sentence.

The defendant in People v Petty shot his victim in the back of the neck. At trial, the defendant argued that his use of force was justified based on the victim's prior threats against defendant's life. Defense counsel asked that the jury be charged that these prior threats could be considered in determining whether the victim was the initial aggressor. The trial court refused to give the requested charge, and instructed the jury instead that the prior threats were relevant only in determining the reasonableness of defendant's use of force. From the Court's opinion:

Here, having instructed the jury on the use of Torrence's prior threats against defendant for the purpose of determining defendant's reasonableness, the trial court, based on this Court's long-standing precedent, should have also instructed the jury that, for its initial aggressor determination, it was permitted to use the prior threats that it heard throughout the trial.

(People v Petty, 2006 NY Slip Op 05232.)

Despite finding error, the Court declined to reverse defendant's conviction; the Court concluded that the People disproved the justification defense beyond a reasonable doubt and the charging error was therefore harmless. (Id. at __.)

Upcoming arguments at the Court of Appeals

Three cases out of the Fourth Department are currently pending argument before the Court of Appeals (Big Hat Tip to the fine folks at the Center for Appellate Litigation). Here they are, in no particular order:

People v Bolling: the issue in Bolling is whether a trial court is required to instruct the jurors that they must acquit defendant of all charges (including lesser-included offenses) if they find defendant justified as to a top count. Both the First and Second Departments require such a charge, and failure to give it is reversible error. In Bolling, the Fourth Department refused to reverse based on a trial court's failure to give the requested charge, and recognized the split thus created among the Appellate Division Departments. See my previous post on Bolling here. The case will be argued October 12, 2006. (Full disclosure: I am Mr. Bolling's attorney and will be arguing his case before the Appeals.)

People v Cagle: the defendant in Cagle was sentenced as a second felony offender based on the trial court's determination that he had been convicted of a prior felony within 10 years of the commission of the crime he was being sentenced on. In calculating the 10-year period, the trial court excluded time defendant spent on work release supervision, reasoning that "work release" was the equivalent of "incarceration" for purposes of tolling the 10-year time period. The Fourth Department, in a 3-2 decision, affirmed the trial court's decision and held that "the tolling provision applies to the period of time in which defendant was in the day-reporting work release program inasmuch as he remained under the control and custody of the Department of Correctional Services." (Cagle, 26 AD3d 735 [2006].) As the dissenters noted, the Second Department has held just the opposite, and the Justice Pine (one of the AD4 dissenters) granted leave to resolve the question. The case will be argued October 19, 2006.

People v Carter: the primary issue in Carter is whether the trial court erred in failing to charge depraved indifference Assault 1st and intentional Assault 2nd in the alternative. The Fourth Department found the issue to be unpreserved and declined to reach it in the interests of justice.

You can see the entire list of the upcoming Court of Appeals arguments over at the Center for Appellate Litigation.

AD4: Single gunshot to chest insufficient to establish "uncommon brutality" required for depraved indifference murder

People v Packer, 2006 NY Slip Op 05449 [available here]

Continuing on our "depraved indifference" theme, the Fourth Department reversed a defendant's depraved indifference murder conviction where the evidence established only that the defendant shot his victim once in the chest. The facts, as set forth in the Fourth Department's decision:

Without apparent explanation or provocation, defendant removed two pistols from a safe in his bedroom, held up one of the pistols and fired a single fatal shot at the victim. Defendant testified that he did not recall shooting the victim and had no reason to kill her.

(Packer, 2006 NY Slip Op 05449 at __.)

On those facts, the Fourth Department concluded "that 'defendant's conduct may have reflected recklessness but did not fall within the small, and finite, category of cases evidencing utter depravity, uncommon brutality and inhuman cruelty required for depraved indifference murder'." (Id. at __ [citing People v McPherson, 6 NY3d 202, 216.) Instead of dismissing the depraved indifference murder count outright, the Fourth Department took the increasingly favored remedial step of reducing defendant's conviction to manslaughter in the second degree (see my previous post on this trend here).

It is worth noting that the Fourth Department found this issue unpreserved because defendant's motion for a trial order of dismissal was not renewed at the close of all proof; the Fourth Department reads the Court of Appeals' decision in People v Hynes (97 NY2d 56) as requiring a defendant to make a TOD motion at the close of all proof to preserve a legal sufficiency argument for review. (Packer, 2006 NY Slip Op 05449 at __ ["Defendant failed to renew his motion to dismiss at the close of the People's case after presenting evidence and thus failed to preserve [his legal sufficiency arguments] for our review"].) The Fourth Department's reading of Hynes is by no means widely accepted, and the Second Department has specifically rejected AD4's reading of Hynes and held making a TOD motion at the close of the People's case is sufficient to preserve a legal sufficiency argument. (See< People v Soto, 8 AD3d 683 [2d Dept 2004].) The Court of Appeals may get around to resolving these conflicting interpretations of Hynes eventually, but until the Appeals rule on the issue it is clear the Fourth Department will continue to require defense counsel to renew his or her TOD at the close of all proof in order to preserve legal sufficiency issues for review. Mr. Packer got lucky; the Fourth Department decided to reach his legal sufficiency issue in the interest of justice.

CA: "depraved indifference" roundup

In the wake of last week's Feingold decision (overturning People v Register and holding that "depraved indifference" is a culpable mental state), the Court of Appeals did some housekeeping and decided three more cases dealing with "depraved indifference" issues. Here they are, in no particular order:

People v Mancini, __ NY3d __ [available here]

The facts of Mancini fall into the "you can't make this stuff" up category (i.e. death-by-toilet-lid); from the dissent:

According to defendant's trial testimony, after agreeing to a sexual encounter with a 75-year-old man for a specified sum of money and accompanying him to his home, the pair got into the shower. When the man told defendant that he would pay only half of the agreed-upon price, defendant refused to have sex with him. The man responded by grabbing defendant from behind, which led her to believe that she was about to be sexually assaulted. A struggle ensued.

Defendant testified that eventually she got out of the shower, picked up a toilet tank lid and swung the lid in the direction of the man, who had slipped and was now sitting in the tub, striking the lid on the side of the shower. Defendant claimed she swung the lid once more, hitting the man directly on the left side of his head. [...]

Notwithstanding the victim's shattered skull, profuse bleeding and motionless body, defendant told the jury that she "did not think he was hurt that bad", "thought he would need stitches but . . . [that] he would be okay" and that he would "eventually . . . get up and probably call the police himself" and that it was "only a flesh wound."

(Mancini, __ NY3d at __ [Monty Python reference added].)

On those facts, the majority held that "Defendant did not commit depraved indifference murder within the meaning of the statute." (Id. at __.) Judge Graffeo dissented, and would have held that defendant created a grave risk of death by her actions (i.e. bashing the old man in the head with the toilet tank lid) and elevated her score on the "depravity" scale by "abandon[ing] the victim and imped[ing] the possibility of assistance by locking the doors to the garage and bathroom." (Id. at __ [GRAFFEO, J., dissenting].) The majority counters this argument by noting that, if leaving a victim to die is treated as the elevating factor for depraved indifference murder, "[t]hat test would sweep in the vast number of homicides where the killers do not linger with their victims, awaiting aid." (Id. at __.)

People v Atkinson, __ NY3d __ [available here]

In a case interesting for the corrective action taken, the Court in Atkinson agreed that the evidence was insufficient to establish "depraved indifference" murder, but fell short of a straight dismissal. Rather, the Court held that "dismissal of the indictment is neither required nor warranted. The facts are sufficiently different from Payne to enable a jury to reasonably conclude that defendant's actions, although not depraved, were reckless. Among other evidence, testimony at trial could have led a rational jury to infer that the victim moved into a shot that was intended only to scare him." (Atkinson, __ NY3d at __.) Thus, the Court reduced defendant's conviction from "depraved indifference" murder to manslaughter in the second degree. (Id..)

This trend of reducing a depraved indifference murder conviction to manslaughter in the second degree (instead of dismissing the indictment completely and walking a defendant out of prison) has popped up in the Fourth Department. (See People v Packer, 2006 NY Slip Op 05449.) It is an interesting way to solve the counter-intuitive problem inherent in these depraved indifference cases going back to Gonzalez, i.e. completely dismissing a murder indictment where the evidence shows a manifest intent to kill. The first Court of Appeals cases on this issue focused on whether an act manifested such an obvious intent to kill that a conviction based on a lesser, reckless mental state could not be supported by the evidence. (See e.g., People v Gonzalez, 1 NY3d 464 [2004].) Since then, the focus of the Court of Appeals has shifted to the definition of "depravity"; and now that "depravity" is a mental state, it gives appellate courts cover to find conduct reckless but not depraved, and thus salvage a conviction for manslaughter in the second degree. I imagine this will become the favored remedy in cases where an appellate court finds insufficient evidence to support a depraved indifference murder conviction--grant meaningful relief in the form of a reduction to reckless manslaughter, but deny the windfall of a complete dismissal.

The Atkinson decision also held that a defendant does not forfeit "his right to challenge the sufficiency of his conviction for depraved indifference murder by requesting that the jury be charged on the lesser-included offense of manslaughter in the second degree [...]." (Id. at __.) A nice bit of law to have in one's pocket if presenting this issue to one of the preservation-obsessed Appellate Division Departments.

People v Swinton, __ NY3d __ [available here]

In a brief memorandum opinion, the Court reverses a defendant's conviction for assault in the first degree because "the evidence is legally insufficient to prove beyond a reasonable doubt that defendants acted with the culpable mental state of depraved indifference." (Swinton, __ NY3d at __.) Without a discussion of the facts, this case is of limited utility; but it is nonetheless nice to see the words "the culpable mental state of depraved indifference" in a post-Feingold decision and confirm that the Feingold decision was not just a prank pulled on New York's criminal defense bar.

Scheduling note

Despite the glut of new cases from the Court of Appeals and Fourth Department yet to be blogged, posting will be light over the next week or so. Regular posting will resume after that.

AD4 Decision Day (June 2006 term)

The Fourth Department handed down decisions from its June, 2006 term today. Usually, the June term is fairly quiet, because the Court does not hear oral argument and thus the only cases decided are those that are marked "submitted", i.e. no oral argument is requested. Usually, an attorney will only submit a case if the issues are not likely to succeed. However, the Court must have had an inordinate amount of cases held over from other terms, because this is truly an unbelievable packet for criminal defendants. In Monroe County alone, 7 of the 11 criminal decisions were substantive pro-defendant reversals or modifications. That clocks out to an incredible 64 percent reversal rate in Monroe County for the June term. The usual reversal rate hovers between 5-10 percent. Needless to say, there are a lot of cases worthy of comment that I will get to in the coming weeks. For tonight, I'll leave you with . . .

People v Simmons, __ AD3d __ [available here]

In a truly tragic case, appellant Leroy Simmons was convicted of criminally negligent homicide when his car slid through a slippery intersection and struck a woman carrying her infant child. Although the woman wasn't injured, her baby was thrown from her arms and died. The facts (from the Court's decision):

The evidence presented at trial, viewed in the light most favorable to the People, establishes that defendant was driving his vehicle at a rate slightly above the usual speed limit of 30 miles per hour and that, due to road work, 15 miles per hour speed limit signs were posted. The evidence further establishes that defendant belatedly realized that the two victims, a woman and her infant, were in the intersection and that his attempts to stop his vehicle prior to reaching the intersection were futile because the road recently had been resurfaced, resulting in oil and loose gravel on the road. Defendant thus failed to stop at the stop sign, skidded through the intersection and struck the victims, fatally injuring the infant.

(Simmons, __ AD3d at __.)

On those facts, the Court reversed Simmons' conviction for criminally negligent homicide (in the interest of justice, no less), finding that "the evidence is legally insufficient to establish that defendants' acts were 'a gross deviation from the standard of care that a reasonable person would observe' under the circumstances." (Id. at __.) The Court concluded that, while Mr. Simmons' actions "'may well constitute civil negligence . . . the [evidence is legally insufficient to] establish criminal negligence'". (Id. at __ [brackets and emphasis in original].)

Justice Martoche dissented, and would not have reached the unpreserved issue in the interest of justice (and in any event would have found "a valid line of reasoning and permissible inferences" to support the jury's verdict). (Id. at __ [MARTOCHE, J., dissenting].)

CA overturns Register, holds "depraved indifference to human life is a culpable mental state"

People v Feingold, __ NY3d __ [available here]

Under section 125.25[2] of the Penal Law, a person is guilty of depraved indifference murder if, "when . . . [u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." (Penal Law 125.25[2].) Over 20 years ago, the Court of Appeals held that the "under circumstances evincing a depraved indifference to human life" language did not set up an additional mens rea requirement beyond the recklessness expressly stated in the statute; as stated by the Register Court:

This additional requirement refers to neither the mens rea nor the actus reus. If it states an element of the crime at all, it is not an element in the traditional sense but rather a definition of the factual setting in which the risk creating conduct must occur . . . the present statute defines the crime by reference to the circumstances under which it occurs and expressly states that recklessness is the element of mental culpability required. The concept of depraved indifference was retained in the new statute not to function as a mens rea element, but to objectively define the circumstances which must exist to elevate a homicide from manslaughter to murder.

(People v Register, 60 NY2d 270, 277-278 [1983].)

Over the last few years, a majority of the Court of Appeals has fundamentally changed the way the depraved indifference murder statute is applied in practice, culminating in last year's per curiam opinion in People v Suarez that strictly limited the factual scenarios that could support a depraved indifference murder conviction. (See my previous posts on Suarez here and here.) The Court's previous decision in People v Register was the last depraved indifference precedent to escape assault--until today.

By a 4-3 vote, the Court overturned Register today, instead "explicitly" holding "what the Court in Suarez stopped short of saying: depraved indifference to human life is a culpable mental state." (Feingold, __ NY3d at __.) The majority (in a decision written by Hon. G.B. Smith) reasoned that this conclusion was "implicit" in the recent cases overturning depraved indifference murder convictions where a manifestly intentional act was committed or where the necessary wantonness or cruelty was lacking. From the majority decision:

Here, the trial Judge said he would have acquitted defendant of first degree reckless endangerment (fn1) but felt himself prohibited by Register from doing so. [...] Given the trial judge's findings, we cannot affirm the conviction because we cannot conceive that a person may be guilty of a depraved indifference crime without being depravedly indifferent. When a jury (or here, the court at a bench trial) pointedly says that defendant was not depravedly indifferent, it is not our place to say that he was. [...]

We regard this as a juridical imperative, much the same as in any analogous situation. A person accused of stealing may be guilty of larceny, but a guilty verdict may not stand if the jury finds in a special verdict that the defendant did not intend to take anything. So, too, a person may not be said to have acted with the mens rea of depraved indifference when the jury (or court as fact-finder) tells us that he was not depravedly indifferent.

(Id. at __ [footnote added].)

Judge Ciparick dissented, arguing that "nothing is our precedents requires the imposition of a separate culpable mental state--mens rea--to the element of depraved indifference to human life. [...] There is no need that a defendant subjectively harbor a 'wicked' or 'evil' mind, as now required by the majority." (Id. at __, CIPARICK, J., dissenting.)

While concurring in Judge Ciparick's dissent, Chief Judge Kaye dissented separately to protest the majority's "retreat from a core holding of Register--that the requirement that a defendant act 'under circumstances evincing a depraved indifference to human life' does not constitute a mental state." (Id. at __, KAYE, C.J., dissenting.) From Chief Judge Kaye's dissent:

The majority would limit th[e] level of disregard for the lives or safety of others to circumstances where the defendant consciously has in mind the likelihood of injury to innocent persons and nevertheless deliberately chooses to proceed with the dangerous course of conduct.

While I agree that depraved indifference includes these situations, I fail to understand why it must be restricted to such cases. In my view, "utter indifference" to human life easily covers instances in which a person undertaking a mortal act fails to consider the potential impact on his or her neighbors. Indeed, the failure to be at all concerned with the lives of others is the very epitome of depraved indifference, regardless of whether such utter indifference arises from a malicious wickedness toward humanity or, as here, a complete unmindfulness of one's fellows born of total self-absorption.

(Id. at __.)

Finally, Judge Graffeo dissented separately to note that the majority's decision is at odds "with the language of the reckless endangerment statute [and] the prior rationale of this Court." (Id. at __ [GRAFFEO, J., dissenting].)

n.1: This underlying charge in Feingold was reckless endangerment in the first degree, "which provides that a person violates the statute 'when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person.'" (Feingold, __ NY3d at __.) The defendant here escaped a depraved indifference charge by sheer luck; although he tried to commit suicide by turning on gas in his apartment and then zonking out on tranquilizers, nobody was killed when his apartment exploded several hours later.

AD4 restricts police officer "expert" testimony

People v Dixon, 815 NYS2d 848 [available here]

Jeremy Dixon was arrested for selling drugs when a narcotics officer saw him exchange an unidentified object for another unidentified object in a drug prone neighborhood. When searched, $52 was found in Mr. Dixon's pocket. At trial, the arresting officer gave his "expert" opinion that the possession of $52 is consistent with an intent to sell drugs. The officer also repeatedly characterized the observed exchange as a "hand-to-hand drug transaction". The Fourth Department found error on both scores (albeit briefly): "We agree with defendant, however, that the court erred in admitting the opinion tesitmony of a police officer that a hand-to-hand drug transaction had occurred and that defendant's possession of $52 was consistent with the sale of drugs." (Dixon, 815 NYS2d at 848.) Nothing too earth shattering here, but it is nice to see the Fourth Department set some limits on this type of "expert" cop testimony.

The more interesting issue on appeal was whether an exchange of one unidentified object for another unidentified object in a drug-prone neighborhood was sufficient to support probable cause for arrest. The Fourth Department rejected appellant's argument that something more was required, but did so without any analysis. (Dixon, 815 NYS2d at 848.)

Not the result Appellant was looking for

People v Thigpen, __ AD3d __ [available here]

Criminal defendants are allowed to appeal once as a matter of right--for the most part, if you got a conviction, you get an appeal. However, it is not always a good idea to avail oneself of that right. The Fourth Department's decision in People v Thigpen illustrates the point. The substantive issues raised by Mr. Thigpen's counsel on appeal were weak, and the Fourth Department rejected them in a few paragraphs. The real kick in the stomach for Mr. Thigpen comes in the last paragraph of the decision:

Finally, we conclude that the sentence of 3 1/2 to 7 years imprisonment is illegal inasmuch as defendant was sentenced as a second felony offender on two class B drug felonies, which in 2003 required a minimum indeterminate sentence of 4 1/2 to 9 years. "Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand". We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing.

(People v Thigpen, __ AD3d __.)

Ouch. I guarantee Mr. Thigpen did not expect to come out of his appeal with a longer sentence that he had going in.

AD4: refusal to allow defense to present evidence that placed defendant away from scene of shooting requires reversal

People v Collins, __ AD3d __ [available here]

Defendant Collins was charged with Criminal Possession of a Weapon in the Second Degree and Reckless Endangerment in the First Degree in connection with a shooting that occurred on the sidewalk in front of a bar. In their Bill of Particulars, the People described the place of the shooting as "in the vicinity of 2261 Fillmore Avenue", the address of the bar. Collins wanted to put on proof that he was inside the bar at the time the shots were fired outside on the street, and thus could not have been the one firing the shots. The trial court would not let the evidence in because the defendant had not previously filed an alibi notice, and the Fourth Department held this was error requiring reversal.

First, the Fourth Department rejected the People's argument that the proposed evidence constituted an "alibi"; as the Court noted, the People drafted their bill of particulars very broadly (as prosecutors are wont to do), and it came back to bite them. The People described the location of the crime as "in the vicinity of 2261 Fillmore Avenue," and the Fourth Department had no problem finding that "the proposed evidence did not establish an alibi because he was in fact 'in the vicinity of 2261 Fillmore Avenue," and thus a notice of alibi was not required." (Collins, __ AD3d at __.)

The Court went on to hold that, even if a notice had been required, the inquiry is not finished. There is no "gotcha" type, technical game to be played when a defendant's constitutional right to present a defense is concerned. Even if evidence can be truly characterized as "alibi" evidence and the statutorily required notice is required, a trial court must still "balance 'the fundamental character of the defendant's right to offer the testimony of witnesses in his favor [pursuant to US Constitution Amendment VI against] . . . the interest in the fair and efficient administration of justice'." (Collins, quoting Taylor v Illinois, 484 US 400, 414-415.)

AD4: preservation not required for argument based on trial court's failure to advise defendant of postrelease supervision at time of plea

People v Simpson, __ AD3d __ [available here]

During a plea colloquy, the trial court must inform a defendant of the "direct consequences" of a plea. A term of postrelease supervision is "a direct consequence of a criminal conviction", and failure of the "trial court to advise of postrelease supervision requires reversal of the conviction." (People Catu, 4 NY3d 242, 244-245 [2005].) Thus, if a defendant is not informed on the record of postrelease supervision, the plea must be vacated. The somewhat open question has always been whether the issue needs to be preserved, i.e. does a defendant have to make a 440 motion to vacate his plea or otherwise protest the trial court's failure to include the postrelease supervision on the record before challenging the plea on appeal? The Court of Appeals decision in Catu certainly suggests that preservation is not required, unequivocally holding that "the failure of a court to advise of postrelease supervision requires reversal of conviction." (Catu, 4 NY3d at 245.) The Fourth Department expressly decided the question in the Simpson decision handed down last Friday, and confirmed the implication of Catu; from the decision:

Defendant contends that his plea was not knowingly and voluntarily entered because County Court failed to advise him of the mandatory period of postrelease supervision at the time of the plea orat the sentencing proceeding and he had no notice of the mandatory period of postrelease supervision inasmuch as the court did not impose a period of postrelease supervision at sentencing (cf. People v Vance, 27 AD3d 1015). We agree. "[T]he failure of a court to advise of postrelease supervision requires reversal of the conviction" (People v Catu, 4 NY3d 242, 245). To the extent that prior decisions of this Court would require preservation of defendant's contention (see e.g. People v Pan Zhi Feng, 15 AD3d 862, lv denied 5 NY3d 809, 812; People v Roddy, 295 AD2d 965), those decisions are no longer to be followed.

(Simpson, __ AD3d at __.)

This decision clears up what was sometimes a problem for defendants trying to raise this issue. If a defendant argued on a 440 motion to the trial court that the postrelease supervision was not on the record, the trial court could duck the issue by claiming the argument could be raised on direct appeal. If a defendant decided to raise the issue for the first time on direct appeal, the Fourth Department would sometimes hold a 440 motion was necessary to preserve the issue. It was the classic "go ask your father/go ask your mother" situation. The Simpson decision eliminates this problem and brings some clarity to a previously murky area of law.

Note, though, that the Court goes out of its way to note that the postrelease supervision was not mentioned at the plea colloquy and not imposed at sentencing. (Id.) This could be significant. I have seen cases where the postrelease supervision is not part of the plea colloquy, but is mentioned by the judge at sentencing (i.e. "I hereby sentence you to X number of years to be followed by 5 years postrelease supervision"). In that case, I could see the Fourth
Department requiring some sort of objection at sentencing to preserve the issue for review.

CA: trial court's failure to submit CPW3 reviewable, but not an abuse of discretion

People v Leon, __ NY3d __ [available here]

Rolando Leon was "involved in a dispute with another drug dealer, Hattie Dukes." (Leon, _ NY3d at __.) Apparently not one to reason with his adversaries, Leon "got a gun from under his mattress, went to where Dukes and his girlfriend were quarelling, and killed Dukes by shooting her in the face." (Id. at __.) Leon claimed self-defense; the jury believed him and acquitted Leon of murder. However, the jury did convict Leon of Criminal Possession of a Weapon (CPW) in the Second Degree. Leon had been charged by indictment with both CPW2 and CPW3; the Court notes the difference:

The People charged defendant with second-degree criminal possession on the theory that he possessed a loaded firearm "with intent to use the same unlawfully against another". The indictment also contained a charge of criminal possession of a weapon in the third degree, which is committed by possessing a loaded firearm anywhere except in one's home or place of business.

(Id. at __.)

Defense counsel asked that both CPW2 and CPW3 be submitted to the jury; the trial court refused. Since CPW3 is not a lesser-included offense of CPW2, the Court of Appeals reviewed the trial court's refusal to submit the count for an abuse of discretion. From the decision:

The problem in this case exists because criminal possession of a weapon in the third degree is not a "lesser included offense" of criminal possession of a weapon in the second degree. Rather, the two are "non-inclusory concurrent counts" (see CPL Ÿ 300.30 [3], [4]); it is possible to commit the greater offense without committing the lesser one. Second-degree criminal possession, in the form of possession of a loaded firearm with intent to use it unlawfully against another, can be committed anywhere, but possession of a loaded firearm constitutes the third-degree crime charged here only when it does not occur in the defendant's home or place of business. [...]

If the crime defendant asked to have submitted to the jury had been a lesser included offense, the court would have been required to grant his request "if there [was] a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater" (CPL 300.50 [1]; see CPL Ÿ 300.50 [2]). But because the two offenses are non-inclusory, the submission of the less serious count, even if there was evidence to support it, was not mandatory. [...] [W]hether to submit it was a matter for the trial court's discretion under CPL ß 300.40 (3) and (4). "With respect to non-inclusory concurrent counts, the court may in its discretion submit one or more or all thereof" (CPL Ÿ 300.40 [3] [a]).[...]

(Id. at __.)

The Court found the trial court did not abuse its discretion, since the idea that the defendant could have simply possessed the gun with no unlawful purpose (and therefore been guilty of CPW3 instead of CPW2) was "farfetched" and a defendant is not entitled to submit a lesser crime to the jury in hopes of jury nullification. (Id. at __.)

The Court also rejected the People's argument that "a discretionary ruling in their favor cannot be challenged," holding that the CPL section cited by the People in support of their argument was not applicable "to already discretionary rulings like the one at issue in this case." (Id. at __.)

More over the next few days on the new decisions handed down by the Fourth Department last Friday.

AD4: testimonial hearsay not admissable at persistent violent felony offender hearing

People v Williams, __ AD3d __ [available here]

Deciding an issue of first impression in New York, the Fourth Department holds in a decision handed down today that the "testimonial" hearsay rule promulgated in Crawford v Washington applies at persistent violent felony offender hearings in New York to exclude testimonial hearsay absent an opportunity to cross-examine the declarants. I have discussed this previously open question here.

At issue in Williams was "an affidavit of the Criminal History Bureau" submitted by the People at defendant's persistent violent felony offender hearing to prove up the fact of the requisite prior convictions. As described by the Court, the affidavit

referred to four fingerprint cards of "Michael Williams" that were obtained in connection with the present felony and three earlier felonies that occurred in 1977, 1980 and 1995. The director asserted in his affidavit that the fingerprint cards were compared and that "staff determined" that the fingerprints on those cards were the fingerprints of the same Michael C. Williams who was before the court at sentencing.

(Williams, __ AD3d at __.)

Although noting that the right on confrontation is a trial right that does not usually apply at sentencing, the Fourth Department nevertheless concluded that New York's recidivist sentencing statute specifically makes the right of confrontation (and by extension the rule set forth in Crawford v Washington) applicable at a persistent felony offender hearing and the fingerprint affidavit should have been excluded. From the decision:

We conclude . . . that the affidavit of the director of the Criminal History Bureau is not admissible under New York law, even in a sentencing proceeding. [...]

[T]he director's affidavit was testimonial in nature, and the "'testimonial' statements [in the adffidavit were] not previously subjected to cross-examination [and thus were] inadmissible against [this] criminal defendant". At a hearing to determine whether a defendant is a persistent felony offender, "[t]he burden of proof is upon the people and a finding that the defendant has been subjected to a predicate violent felony conviction must be based upon proof beyond a reasonable doubt by evidence admissible under the rules applicable to a trial of the issue of guilt." (CPL 400.15[7][a]; see CPL 400.16[2].) Here, the affidavit of the director would not be admissible at trial, and thus cannot constitute the requisite proof.

(Id. at __ [citations omitted].)

This is a welcome result--given the enormous stakes involved in persistent felony hearings (potentially enhancing a defendant's sentence to 25 years to life), it makes sense that defendants should enjoy the same evidentiary protections at a persistent felony offender hearing that they would at trial. The legislature necessarily intended that this should be so when it specified in section 400.15[7][a] of the CPL that the prior felonies must be proved by "evidence admissible under the rules of evidence applicable to a trial of the issue of guilt." (CPL 400.15[7][a].) Today's decision in Williams vindicates that intent.

AD4: Alford plea does not warrant point assessment for "failing to take responsibility" at SORA classification

People v Gonzalez, __ AD3d __ [available here]

Remember back in this post when I explained how the sex offender classification system in New York is points based, and if certain facts are present points are assessed? Under one of those categories, a defendant is given ten points if he does not accept responsibility for his actions. In Gonzalez, the defendant was assessed points under this category because his sex crime conviction was based on an Alford plea (where the defendant does not admit guilt or wrongdoing, but agrees to plead guilty to a crime [sometimes called a "no contest" plea]) to sex abuse in the first degree. The Fourth Department held that a defendant's Alford plea , "without more, does not warrant the board's assessment of 10 points for the purported failure of defendant to accept responsibility for his conduct [...]." (People v Gonzalez, __ AD3d at __.) The Court also noted that the points for being "armed with a dangerous instrument" (an element of sex abuse first) could not be given solely based on the guilty plea, because the Alford plea colloquy contain no admissions of facts. (See id.)

The only other decision worth noting from the Fourth Department's April term is People v Robinson, if only for the study in human persistence it provides. The facts were explained by the Court:

The first transaction involved the stabbing of a victim; the second involved tampering with a witness to the stabbing; the third involved tampering with the same witness on a different occasion and attempting to bribe him; and the fourth involved the shooting and attempted murder of the stabbing victim the day before trial on the stabbing incident was scheduled to begin.

(People v Robinson, __ AD3d at __.)

If at first you don't succeed, I guess. The legal question was a bit of a letdown; while noting that defendants generally have the right to be present "during Ventimiglia hearings or sidebar conferences", the "defendant's right to be present was not violated in this case because the only issue discussed was whether the testimony was more prejudicial than probative, and thus there was no potential for meaningful participation on defendant's part." (Id. at __.)

CA:"trial court did not abuse its discretion by calling 44 people for simultaneous voir dire questioning"

People v Serrano, __ NY3d __ [available here]

Apparently wanting to limit the number of rounds required to complete jury selection, the trial court in Serrano "called 44 individuals for simultaneous questioning, placing twelve in the jury box and the others in four front rows of the courtroom." (Serrano, __ NY3d at __.) Defense counsel objected, "stating that he would have difficulty conducting an effective voir dire since many prospective jurors sat behind him." (Id. at __.) Noting that the relevant statute only provides that "not less than twelve" prospective jurors are to be called at a time, the Court held:

Tellingly, the legislature set no upper limit for the number of prospective jurors, thus allowing judges discretion to make their courtrooms, and voir dire, more efficient. Defendant has not demonstrated that he could not conduct a voir dire by the trial court's decision to expand the jury box. During voir dire, counsel expressed no inability to observe, hear or assess the demeanor and qualifications of, or exercise challenges against, any prospective jurors. There was also no evidence of prejudice on the record at the end of voir dire. We therefore conclude that there was no abuse of discretion [...]

(Id at __.)

Nothing groundbreaking here, but lets hope trial courts don't get wind of it and start doing voir dire in one pass.

CA: Navy court martial conviction for "indecent assault" not classifiable sex offense under NY SORA

People v Kennedy, __ NY3d __ [available here]

This time last year, the Fourth Department held that a Navy court martial conviction for "indecent assault" was a classifiable offense under the section of New York's SORA law defining a SORA-eligible sex crime to include "a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred." (People v Kennedy, 20 AD3d 137, ___ [4th Dept 2005].) The Fourth Department noted that the certain Navy regulations require the Navy to notify state and local law enforcement of an offender's Navy sex crime convictions and to further provide information to the offender concerning any registration requirements. (Id. at __.) This was the equivalent of "registering" in the "jurisdiction in which the conviction occurred" for purposes of the SORA statute and thus (according to the Fourth Department) a person convicted of "indecent assault" by a Navy court martial was required to register as a sex offender in New York. See my previous post on Kennedy here.

The Court of Appeals reversed the Fourth Department on this issue in a decision handed down today. From Judge Rosenblatt's majority opinion:

County Court's determination fails because the second element of section 168-a(2)(d)(ii) requires that the conviction result in the offender's obligation to register in the "other jurisdiction,", i.e. where defendant was convicted--here, the United States Navy. The People argue that Secretary of the Navy Instruction 5800.14 obligates defendant to register with the Navy. It does not. This "Instruction" is a notification order directed to "all Ships and Stations"; by its own terms, it places responsibility to provide notification not on the offender but on the Assistant Secretary of the Navy for Manpower and Reserve Affairs, the Navy Personnel Command, the Commandant of the Marine Corps, the "Convening Authority or Convening Authority's Designee" for each court-martial, the Naval Criminal Investigative Service and the Judge Advocate General of the Navy.

The People have presented no evidence of any kind suggesting that naval sex offenders must register with the Navy or have any ongoing obligation to keep the Navy informed of their whereabouts once they leave the service. Furthermore, the People have presented no evidence that the Navy or Department of Defense maintains any registry or equivalent database; if there is no registry, there can be no registration and no registrants. Because the People have not shown that defendant ever had any obligation to register with the other jurisdiction, they have not met the second statutory requirement for registration in New York.

(People v Kennedy, __ NY3d at __.)

Judge Graffeo concurred separately "to highlight the need for legislative reconsideration." (Id. at __.)

I do not have a whole lot to say about Kennedy that I didn't say when the Fourth Department first decided the case last year (see my previous post here).

The Fourth Department will hand down decisions from its May, 2006 term this Friday. I will post on the few leftover decisions from the Court's April term between now and then.

AD4: "prior criminal history" for purposes of SORA classification = prior to date of commission of underlying sex crime

People v Milks, __ AD3d __ [available here]

In New York, all sex offenders are classified on a scale of "1" to "3", with "3" being reserved for those offenders most likely to reoffend (and thus subject to the most onerous post-release reporting requirements). The appropriate classification is determine using a point assessment system. When a sex offender is released from prison, a hearing is held and certain points are assessed for different categories. If force was used in the commission of the sex crime, a certain number of points are added; if there were multiple victims, some more points are tacked on, and so on.

One of the point categories used to classify sex offenders is based on an offender's "prior . . . criminal history" not involving sex crimes or felonies; if an offender has a prior criminal history, five extra points are added to the assessment. Since sex offenders are not classified until they get out of prison on the underlying sex offense, there can be quite a lag between the commission of the underlying sex crime and the SORA classification hearing. Plus, all sex offenders in New York were recently reclassified as a result of the lawsuit in Doe v Pataki, and some of those offenders had been out of prison for years before being reclassified for SORA. So the question for purposes of assessing points for "prior . . . criminal history" was, "prior" to what? Prior to the conviction for the underlying sex crime, or prior to the SORA classification hearing?

The Fourth Department answered that question in People v Milks, and held that the category for "prior . . . criminal history" means "prior" to the underlying sex conviction. From the decision:

With respect to risk factor nine, the SORA Risk Assessment Guidelines and Commentary (Nov. 1997) provides that a sex offender's 'concurrent or subsequent criminal history is not covered by this category, [although] it may be the basis for an upward departure if it provides reason to believe that the offender poses an increased risk to public safety'. Here, defendant was convicted of the underlying sex crime in 1991 and released from prison in 1997, but the 'criminal history' considered by the court under risk factor nine concerned acts committed in 1999 and a conviction entered in 2000. The record thus does not contain the requisite clear and convincing evidence supporting the assessment of five points under risk factor nine [...].

(Milks, __ AD3d at __.)

This issue came up a lot during the SORA reclassification hearings pursuant to Doe v Pataki, so it is nice to see the Fourth Department clarifying the issue.

AD4: defendant not deprived of fair trial by improper tactics from "derisive and sarcastic" prosecutor

People v Williams, __ AD3d __ [available here]

The prosecutor at Mr. Williams' murder trial was "derisive and sarcastic", accusing a main defense witness of smoking crack and asking that same witness to apologize "to the victim's wife for lacking 'the courage to stand up and tell [the] jury the truth.'" (Williams, __ AD3d at __ [GORSKI & GREEN, Js, dissenting).) During summation, the prosecutor personally opined on the credibility of the witnesses ("I wouldn't believe [that witness] if she told me I had a gray pinstripe suit on") and "accused defendant, the final witness to testify at trial, of tailoring his testimony to the evidence presented, and the prosecutor invited the jury to 'assume [defendant's] right. Let's--let's go to Disney World for a minute.'" (Id.)

On appeal, Mr. Williams argued that the prosecutor's misconduct deprived him of his right to a fair trial and reversal was necessary. A majority of the Fourth Department disagreed, noting "that certain of the prosecutor's comments during cross-examination of a defense witness were improper," but the misconduct was not "so egregious as to deprive defendant of a fair trial." (Williams, __ AD3d at __.) As to the misconduct during summation, the majority concluded "the prosecutor's comments . . . were fair comment on the evidence," and in any event were "alleviated" by the trial court's charge that the summations of counsel were not evidence. (Id. at __.)

Justices Gorski and Green dissented, and would have reversed. From the dissent:

Although we recognize that reversal 'is an ill-suited remedy for prosecutorial misconduct', reversal for prosecutorial misconduct is nevertheless warranted when the prosecutor's conduct is so egregious that the defendant was deprived of his or her right to a fair trial. [...]

Here, the evidence of defendant's guilt is not overwhelming and, as we previously noted, the outcome of the case was dependent solely on the credibility of the witnesses. It is our conclusion that the prosecutor's cross-examination of the defense witness as set forth herein, in conjunction with the prosecutor's improper comments on summation regarding that witness as well as the alibi witnesses, could have 'tip[ped] the scales'' against defendant.

(Williams, __ AD3d at __ [GORSKI & GREEN, Js, dissenting].)

More on the leftovers from the Fourth Department's April term over the next few days.

CA: juror's "unsettling gaze", like of detective stories and resemblance to African-American judge sufficiently race-neutral reason for peremptory

People v Wells, __ NY3d __ [available here]

During jury selection for Mr. Wells' murder trial, the prosecutor exercised a peremptory challenge against an African-American woman. Defense counsel raised a Batson challenge (for the basics of Batson, go here and scroll down). The prosecutor's response is set out in the Court's majority decision (written by Judge Graffeo):

When asked by the trial court to provide race-neutral reasons for the removal of this woman, the prosecutor stated that the prospective juror had held her hand over her mouth when answering questions, which indicated to the prosecutor that the jury 'had something to hide.' The prosecutor also claimed that the jury had 'an unsettling gaze' that was 'difficult to deal with,' and remarked that the juror reminded her of a particular New York City judge.

(Wells, __ NY3d at __.)

The trial court found the prosecutor's explanation race neutral, and denied defense counsel's Batson challenge. The Appeals affirmed; from the majority opinion:

The prosecutor's reasons for exercising the peremptory challenge focused on the juror's demeanor (placing her hand over her mouth and having an "unsettling gaze") and fondness for detective stories (which might cause her to have certain expectations about the trial evidence). Furthermore, the prosecutor's reference to a particular judge, although in 'poor taste' as noted by the Appellate Division, was not facially race-based. Because the People's burden "is met by offering any facially neutral reason for the challenge--even if that reason is ill-founded--so long as the reason does not violate equal protection", and the trial court's findings are entitled to deference, we cannot say that the prosecutor's justifications for the use of the peremptory challenge were inadequate.

(Id. at __.)

Judge G.B. Smith concurred, and would have affirmed defendant's conviction only because trial defense counsel "fail[ed] to make an objection that the reason proffered by the prosecution was not clearly race/gender-neutral [and] failed to preserve this argument for appellate review." (Id. at __ [G.B. SMITH, J., dissenting].) From the concurrence:

[A]fter a defendant makes out a prima facie case of discrimination in the selection of jurors under Batson, the prosecution's explanation for the peremptory challenge must be unequivocally race/gender-neutral and related to the particular case to be tried. [...] Because one of the prosecutor's reasons for exercising a peremptory strike against this prospective juror was not unequivocally race/gender-neutral, I disagree with the above-mentioned conclusions reached by this Court and the Appellate Division. [...]

The prosecutor's statement regarding how the prospective juror reminded her of a named Supreme Court Justice, who is also an African-American woman, and how this made the prosecutor "anxious in a sort of [] emotional way," raised issues that should have been pursued during the voir dire. Not only is this statement insulting and irrational, it is wholly ambiguous. The proffered reason, on its face, is neither clearly race/gender-neutral, nor clearly race/gender-based, i.e., there is no indication from the prosecutor's explanation as to what about the prospective juror reminded the prosecutor of the name Supreme Court Justice.

(Id.)

Since at least one of the reasons given by the prosecutor was arguably based on gender or race, the trial court should have either clarified the prosecutor's statement or upheld the Batson challenge. (Id.)

This case also dealt with the issue of duplicity as it relates to a charge of Attempted Murder. In a nutshell: defendant took potshots at two cops and was indicted on one count of Attempted Murder in the Second Degree. On appeal, defendant argued that the one count of the indictment actually alleged two crimes because there were two potential and intended victims. Since actual death is not an element of Attempted Murder 2nd, Judge Graffeo (I think correctly) held that the charge was not duplicitous because the indictment "charged a single crime based on a single incident--engaging in conduct (the shooting at Detectives Molina and Weston) that tended to effect the crime of murder while acting with the intent to cause the death of a police officer or another person." (Id at __.) Nicole at Sui Generis has her own thoughts on Wells here.

Rochester man free after 10 years in prison, DNA proves innocence

From an article in today's Rochester Democrat and Chronicle:

State Supreme Court justice Thomas Van Strydonck today freed an AIDS-stricken man who has been imprisoned a decade for a murder prosecutors now say he did not commit.

Recent DNA testing showed that Douglas Warney, 44, is innocent of the 1996 slaying of civil rights activist William Beason, prosecutors acknowledged in state Supreme Court today.

Warney was convicted in 1997 of the slaying. The case against him was largely based on a confession he gave in 1996. His lawyers contended that the admission was riddled with errors, and were the rambling of a man with an IQ of 68 who suffered from AIDS-related dementia.

The confession did contain some facts consistent with the crime scene, and defense lawyers now argue that police must have given those facts to Warney then included them in the confession. Warney did know Beason and may have been familiar with Beason's city home, according to trial testimony.

The New York Times also is running an article on Mr. Warney's case here. The Monroe County District Attorney (Michael Green) has fought the DNA testing for the last two years. The Fourth Department affirmed Mr. Warney's conviction back in 2002 (People v Warney, 249 AD2d 956 [4th Dept 2002]).

CA: trial prosecutor's flagrant Brady violation entitles People to another bite at the apple

People v Williams, __ NY3d __
[available here]

Defendant Ronald Williams was arrested for selling and possessing drugs, and prior to his trial he moved to suppress "prerecorded buy money and other evidence taken from him when he was arrested, claiming that the arrest was without probable cause." (People v Williams, __ NY3d __.) The People called only one witness at the suppression hearing--Detective Anthony Gordon. Gordon testified that he saw defendant exchange money with a man then under surveillance for dealing drugs. (Id at __.) At the time of Gordon's testimony, the prosecutor knew that Gordon was under investigation for perjury, with allegations that in another drug case Gordon "had admitted to an assistant district attorney that he did not see the defendant in that case remove a bag that contained crack from a stairway in a building in East Harlem even though he testified before a grand jury that he had." (Id. at __ [G.B. SMITH, J., dissenting.) The prosecutor did not inform the court of the perjury investigation; instead, the "People called no other witnesses, and relied on Gordon's testimony in opposing the suppression motion. The court denied the motion." (Id. at __.)

After the People rested their case at trial, defense counsel "asked that Gordon be made available as a defense witness," and it was at this point, for the first time, that the People told the Court about the perjury investigation involving Gordon. (Id at __.) Defense counsel immediately asked that the pretrial suppression motion be granted based on the failure of the prosecutor to disclose that the only witness at suppression was being investigated for perjury; the court chose a somewhat different remedy:

Instead, the court conducted a new hearing, at which it received Gordon's pre-trial hearing testimony; a stipulation that Gordon would take the Fifth Amendment if questioned about the perjury investigation or the facts underlying it; and stipulations reflecting some discrepancies between Gordon's hearing testimony and the testimony he gave as a defense witness at trail. The Court also invited the parties to call other witnesses; the People accepted the invitation and called Washington, who described essentially the same series of events that Gordon had.

(Id. at __.)

Judge R.S. Smith wrote the four Judge majority, and affirmed the defendant's conviction. Despite recognizing that the misconduct of the prosecutor was "serious" and concluding that "[t]here was no excuse for the People's failure to make the hearing judge aware of the perjury investigation of Gordon . . . at the same time that the People were asking the hearing judge to rely on Gordon's testimony to deny suppression", the majority concluded the trial court's chose of remedy was not an abuse of discretion. In so holding, the majority struck a familiar refrain:

[N]ot every significant misjudgment by the prosecution entitles the defendant to a windfall. [...] Indeed, the record strongly indicates not only that there was probable cause to arrest defendant but that, whether or not Gordon was in general a reliable witness, his account of the events leading to the arrest was largely true. [...] The Brady rule exists to prevent miscarriages of justice; the remedy defendant seeks here might well have created one.

(Id. at __.)

Or stated another way: because there was probable cause for defendant's arrest (and overwhelming evidence of his guilt), the defendant should not be entitled to any relief that is going to result in the suppression of the evidence found pursuant to the arrest, even where deliberate prosecutorial misconduct is involved. He did it, after all.

Judge G.B. Smith wrote for the three dissenting Judges:

At a Mapp hearing to suppress physical evidence, the prosecution permitted a police officer to testify without revealing that the officer was under investigation for perjury. Moreover, the testimony of that officer before the grand jury was false and his truthful testimony would not have established probable cause for an arrest. The failure of the prosecution to reveal Brady material should have led to the suppression of evidence taken from defendant at the time of his arrest. No reopened or new suppression hearing should have been permitted. [...]

Suppression is warranted because of the untimely disclosure alone, regardless of the offer and acceptance of a re-opened suppression hearing. The prejudice to defendant could not be undone, especially give that Sergeant Washington had already testified at trial to the events of April 12, 2001, and a re-opened suppression hearing would merely give him the opportunity to reiterate his previous testimony. [...]

Previously, this court has denied the prosecution a second bite at the apple when all the evidence was available at the time of the first hearing, and defendant would be prejudiced if the prosecution were allowed a second attempt at trial or a pre-trial proceeding. The prosecution is afforded only one 'full and fair opportunity' to present the evidence against defendant. Thus, if defendant is allowed nothing more than a de novo suppression hearing, the prosecution is given a second bite at the apple, which only further prejudices the defendant and rewards the prosecution for its failure to disclose material information.

(Id. at __ [G.B. SMITH, J., dissenting].)

The majority and dissent highlight two different notions of "justice" found in criminal law. The majority's decision focuses the narrow "justice" of the specific case; did the defendant do it? If yes, then justice is served by a result that protects the guilty verdict. The dissent's decision, on the other hand, is concerned with systemic justice--was the system fair? If not, then the outcome for the individual defendant does not matter, because it was not the product of a just system.

The Court of Appeals seems to be tracking towards the majority's view--a very results-oriented, individual "justice" approach, where the factual guilt of the defendant is the overwhelming consideration and almost any error along the way will be excused. This can only be bad for the systemic integrity of the criminal justice system, because any number of errors and procedural injustices are excused (and therefore encouraged to repeat) to preserve an end-result (guilt) that the reviewing Judges believe appropriate.

The nice thing about the dissent's approach is that, by insisting on procedural integrity, most of the time individual justice will be done, too. The occasional case like Williams--where if the dissenters had carried the day a drug dealer would walk free to reinforce the integrity of the system by punishing the prosecution for its deliberate misconduct--is the price of having a system that takes its procedural fairness seriously. This seems to be a price appellate courts in this state are less and less willing to pay.

CA: trial court can tell a jury to disregard "eyewitness identification" expert witness and not risk reversal

People v Drake, __ NY3d __ [available here]

Earlier this week, the Court handed down two decisions dealing with issues surrounding witnesses who testify as experts on eyewitness identification. I previously posted about People v Young here. The other decision is People v Drake. Unlike in Young, the trial court in Drake actually allowed the "testimony of . . . an expert in the reliability of eyewitness identification testimony." (Drake, __ NY3d at __.) The issue in Drake was not the propriety of allowing the testimony--the Court noted that "courts are encouraged" to admit such testimony "in appropriate cases"--but instead whether a rather bizarre jury instruction given over objection required reversal. The majority's decision (written by Chief Judge Kaye) describes the charge: "At the conclusion of the case, the court, over defendant's objection, charged the jury that the testimony [of the expert] 'may not be used to discredit or accredit the reliability of eyewitness testimony in general or in this case.'" (Id. at __.) Essentially, after allowing the expert to testify, the trial court instructed the jury to ignore the testimony. The majority concedes this was error:

Read in isolation, the sentence instructing that [the expert's] testimony could not be used 'to discredit or accredit the reliability of eyewitness testimony in general or in this case' was incorrect. Indeed, it might be taken to mean that the expert testimony the court had admitted could not in the end by considered for any purpose at all. [...]

Where there has been expert testimony on the reliability of eyewitness identifications, jurors must, if they choose to accept that testimony, be permitted to apply the identified psychological factors to the facts of the case before them in deciding whether they are convinced beyond a reasonable doubt as to the accuracy of the proffered identifications.

(Id. at __.)

Rather than reverse, however, the majority takes a step back and concludes "the charge as a whole did not communicate to the jurors that they should disregard the testimony" of the expert. (Id. at __.)

Judge G.B. Smith dissented; from his opinion:

In this case where two out of the eleven eyewitnesses identified defendant as the assailant and where three eyewitnesses unequivocally stated that defendant was not the attacker, the trial court's charge that the jury could not use the testimony of an eyewitness identification expert to reach its verdict was both an error of law and prejudicial. [...]

[This Court is] concerned with whether the correct instructions predominated. In this matter, they did not. Although the trial judge stated, prior to the incorrect instruction, that an expert's testimony can be weighed for credibility like any other witness, the incorrect statement regarding accrediting and discrediting other witnesses erased and outweighed everything that came before.

Not a great week for defendants. In fact, two more decisions were handed down by the Appeals today, and both set pro-prosecution precedent (one dealing with a Batson violation, one with Brady). More on those cases and the rest of the noteworthy decisions from the Fourth Department's April term over the next few days.

CA: trial court's refusal to allow defense expert witness to testify about problems with eyewitness testimony not an abuse of discretion

People v Young, __ NY3d __ [available here]

In one of two decisions handed down today dealing with issues concerning expert testimony offered on the issue of eyewitness identification, Judge R.S. Smith writes for the majority of the Court of Appeals in People v Young, and the Court holds it was not an abuse of discretion for a trial court to refuse "to allow an expert to testify about factors that affect the reliability of eyewitness identifications." (Young, __ NY3d at __.) From Judge R.S. Smith's opinion:

The harder question is whether the trial court abused its discretion in excluding [the expert's] testimony. In People v Lee (96 NY2d 157 [2001]) (decided after the trial court's ruling in this case), we held that the decision to admit or exclude evidence of this sort is a discretionary one. We said that although 'jurors may be familiar from their own experience with factors relevant to the reliability of eyewitness observation and identification, it cannot be said that psychological studies regarding the accuracy of an identification are within the ken of the typical juror'. Thus, there are cases in which testimony like [the expert's] may be admitted, in the exercise of the court's discretion; and indeed, there are cases in which it would be an abuse of discretion to exclude such evidence. This case is undoubtedly in the former category--the trial court here might well have admitted [the expert's] testimony--but we conclude that it is not in the latter; the trial court's ruling was within the bounds of its discretion.

(Id>. at __.)

The Court went on to conclude that, while the expert's testimony would "have been valuable to a juror in this case in assessing [the eyewitness's] testimony", the trial court properly excluded the evidence because the eyewitness's testimony was corroborated by other evidence of the defendant's guilt. Again from the majority's decision:

[I]f this case turned entirely on an uncorroborated eyewitness identification, it might well have been an abuse of discretion to deny the jury the benefit of [the expert's] opinions. The corroborating evidence, however, significantly diminishes the importance of the proffered expert testimony in this case [...]. Here, stolen property was found in possession of two of defendant's acquaintances; neither of them could have been the robber, since both were women; and one of them pointed to defendant as the person from whom she got the property. It was reasonable, under the circumstances, for the trial court to conclude that [the eyewitnesses] identification was quite unlikely to be mistaken, and that [the expert's] testimony would be an unnecessary distraction for the jury.

(Id. at __.)

I can buy this reasoning for a "harmless error" type analysis--if the proof of defendant's guilt is overwhelming, then any error in admitting the proposed expert testimony could be dismissed as harmless. But it seems odd that the admissibility of the evidence should turn on the strength of the People's proof. Indeed, the United States Supreme Court just handed down a decision finding fault with this type of reasoning as violating a defendant's right to present a defense. (See Holmes v South Carolina, 2006 WL 1131853 [available here] ["The point is that, by evaluating the strength of only one party's evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt. [...] It follows that the rule applied in this case . . . violates a criminal defendant's right to have 'a meaningful opportunity to present a complete defense.'"].) It is hard to square today's decision from the Court of Appeals with Holmes, because the Young decision seems to make the admissibility of otherwise relevant defense testimony dependent on the trial court's assessment of the strength of the People's case, and under Holmes this violates defendant's right to present a defense.

The Court's decision today in Young is a troubling continuation of the reasoning first set forth in the Court of Appeal's recent decision in People v Wardlaw, where the Court held the denial of a defendant's right to counsel at a suppression hearing could be dismissed as harmless because the proof of defendant's guilt was overwhelming and the jury's verdict would have been no different had the suppression hearing been successful (see my previous post on Wardlaw here). The upshot of this type of reasoning is that really, really, really guilty defendants have less protections because . . . well, they are so damn guilty that no mistakes in the process could possibly effect the outcome. This type of reasoning can't possibly be good for the integrity of the criminal justice system.

Judge G.B. Smith dissented in Young, noting "The majority's ruling misses the opportunity to hold that here, as a matter of law, where eyewitness identification is attenuated and possibly tainted, and corroborating evidence is weak, courts should allow expert testimony concerning eyewitness identification." (Young, __ NY3d at __.)

The Court of Appeals also handed down a related decision today, also dealing with issues concerning expert testimony related to eyewitness identification. More on that decision tomorrow.

AD4: insufficient foundation for expert junky testimony

People v Freeman, __ AD3d __ [available here]

The defendant in People v Freeman was charged with possessing 18 baggies of crack with the intent to sell. At trial, the People offered the testimony of the arresting sergeant, who opined that the amount of drugs possessed and the manner of packaging was inconsistent with personal use (and therefore the drugs must have been possessed with the intent to sell). (Freeman, __ AD3d at __.) To counter this testimony, the defendant tried to call a reformed drug addict, who prior to becoming a drug counselor was an active crack addict for 15 years, who would opine that drug users often buy in bulk and the possession of 18 nickel bags of crack can be consistent with personal use. Prior to allowing the testimony, the trial court asked for an offer of proof; here's what defense counsel placed on the record:

[The witness], to my understanding and knowledge is a reformed drug addict. He has been clean now for approximately six years to my understanding. Before that he was addicted to cocaine and other drugs for approximately 15 years; pretty much has had a general knowledge as to drug trafficking out on the street; how drugs were packaged, how drugs were purchased, that people on or with a cocaine addiction would purchase in quantity for their own personal use as opposed to because they wanted to sell, and given [the sergeant] being allowed to offer his opinion in support of the 1st count of the indictment, it would basically be our intention to have [the proposed witness] offset that with his own personal knowledge of drug trafficking here in the Rochester area.

(Respondent's brief at 6.)

The trial court did not allow the defense to call the reformed drug addict. As an aside, drug addicts are allowed to give expert opinion testimony in drug cases in New York; just this packet, the Fourth Department handed down a decision reaffirming that, "'In situations where the illegal substance is not available for analysis, drug users who can demonstrate a knowledge of the narcotic are competent to testify. It is for the jury to determine the weight to be given the testimony.'" (Fulton, __ AD3d at __ [quoting People v Christopher, 161 AD2d 896, 897].)

On appeal, the Fourth Department did not rule out the possibility that drug addicts could give opinion testimony on the "personal use" question in drug cases; however, the Court did find defense counsel's offer of proof lacking in Freeman. From the decision:

We conclude that defendant failed to present a sufficient foundation for the testimony of that witness with respect to the knowledge, training and reliability of the witness concerning the issues of personal use and packaging for sale. Defendant failed to provide any information with respect to the extent of the proposed witness's drug counseling and, indeed, defense counsel conceded that the proposed witness had no training or eduction in the area of drug counseling. In addition, defendant failed to present a sufficient foundation establishing that the proposed witness was "qualified to speak from actual experience, from observation or from study."

(Id. at __.)

It is true that defense counsel's offer of proof in this case painted in broad strokes--but if being a crack addict for 15 years does not give you the "actual experience" to opine as to whether a certain amount of cocaine is consistent with personal use or not, what does? And how detailed does a defendant have to get? And at what point does requiring a detailed offer of proof deprive a defendant of his constitutional right to present evidence in his defense?

CA: defendant does not have to admit "possessing" drugs to establish standing to challenge police search

People v Burton, __ NY3d __ [available here]

Mr. Burton was walking down the street when he was stopped and searched by a police officer. One bag of crack was found in Mr. Burton's pocket, and he was arrested. Mr. Burton's attorney made a motion to suppress the drugs, alleging "that defendant was walking alone on the street when he was stopped and searched 'for no apparent lawful reason'", and that the arresting officer noted on the felony complaint that one bag of crack was "recovered . . . from the defendant's person." (Burton, __ NY3d at __.) The People at trial opposed, "arguing that defendant lacked standing to ask for suppression because he did not expressly acknowledge that he had, in fact, personally possessed the cocaine that was recovered from his person, and his reliance on the police officer's allegation in the felony complaint was inadequate to confer standing." (Id..) The trial court agreed, and denied the motion without a hearing. (Id..)

In a decision handed down today, the Court of Appeals held "that the statements in defendant's motion papers that he was stopped and searched by the police without legal justification, and that the police claimed to have discovered drugs on defendant during the search, were sufficient to satisfy the factual allegation requirement of CPL 710.60[1] and thereby establish standing to seek suppression." (People v Burton, __ NY3d at __.) Judge Graffeo wrote for the unanimous Court. The Court made clear that evidence generated by law enforcement could be relied on by a defendant to establish standing to challenge a search:

[W]e have repeatedly observed that, in assessing the adequacy of a motion to suppress tangible evidence, a defendant is entitled to rely on the People's proof to demonstrate standing. The necessary allegations of fact may be gleaned in part from statements made by law enforcement officials in an accusatory instrument or from testimonial statements elicited by the prosecution. Our decisions further point out that witnesses for the People--including police officers--are among '[]other person[s]' (CPL 710.60[1]) whose factual assertions may be used in a motion to suppress. Based on this case law, defendant could meet his evidentiary burden by supplementing the averments made in his motion to dismiss with the police officer's statement that the drugs were recovered from defendant's person. Defendant was therefore not required to personally admit possession of the contraband in order to comply with the factual pleading requirement of 710.60.

(Id. at __.)

The Court further distinguished a "buy and bust" scenario from "a search based on the furtive behavior of a person". Where a defendant is arrested for buying drugs from an undercover officer, the defendant has to actually "'deny participating in the transaction or suggest some other grounds for suppression" to obtain a hearing. (Id..) But as the Court notes,

where probable cause for a search is premised on the furtive behavior of a person, we have observed that an accused can 'raise a factual issue simply by alleging that he or she was standing on the street doing nothing wrong when the police approached and searched' and discovered contraband in the process. A claim of this nature questions whether police action was legally authorized at its inception, and in this situation a hearing is required to determine, as a factual matter, whether the defendant engaged in suspicious or unlawful conduct giving rise to probable cause justifying a search.

(Id..)

Not a particularly groundbreaking decision, but a nice clarification of the factual assertions necessary to obtain a probable cause hearing in New York.