CA: anonymous tip not describing criminal conduct insufficient to justify gunpoint seizure

People v Moore, __ NY3d __ [available here]

In a decision handed down this week, the Court of Appeals held that an anonymous tip reporting "a dispute involving a male Black with a gun, described as approximately 18 years of age, wearing a gray jacket and red hat" was insufficient to establish reasonable suspicion justifying a gun-point stop where the responding police observed only a black man wearing a grey jacket and red hat and did not observe any type of dispute. Sui Generis has a full post on the decision here.

Sorry for the lack of posts this week--I had three arguments on three consecutive days and was thus otherwise occupied. Regular posting to resume next week.

AD4: Leftovers (January 2006 term)

Here are the rest of the noteworthy decisions from the Fourth Department's January, 2006 term, in no particular order:

People v Dye, __ AD3d __ [available here]: in rape prosecution where the victim was a 12-year-old relative of defendant, "County Court did not commit reversible error in allowing the victim to testify that defendant's nickname was 'Bo Peep'."

People v Roberts, __ AD3d __ [available here]: Court declines to exercise its interest of justice jurisdiction to reach defendant's argument "that the verdict is repugnant insofar as the jury found him guilty of attempted murder but not guilty of assault in the first degree [...]."

People v Dandridge, __ AD3d __ [available here]: defendant did not object to trial court's failure to read the correct robbery jury charge, and the Court declines to hold the error implicated "the organization of the court or the mode of proceedings" and further declines to reach the issue in the interest of justice.

People v Rossi, __ AD3d __ [available here]: "The promise of the officer to 'put in a good word' to the judge does not render defendant's statement involuntary because the promise 'did not create a substantial risk that the defendant might falsely incriminate himself.'"

People v Wurthmann, __ AD3d __ [available here]: "Contrary to defendant's contention, neither the interrogating officer's false statement to defendant that his fiancee was upset by his polygraph results nor the officer's promise to take defendant to see his fiancee after he told the officer what happened was 'so fundamentally unfair as to deny due process' or likely to induce a false confession."

People v Jefferson, __ AD3d __ [available here]: "Defendant failed to preserve for our review his contention that the admission of the [911 tape] violated his right to cross-examine and confront a witness against him, and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice."

People v Shank, __ AD3d __ [available here]: defendant's conviction for operation of a motor vehicle on a public highway while drink an alcoholic beverage not supported by legally sufficient evidence where "the officer testified that he observed an empty beer bottle in defendant's vehicle . . . there was no evidence that the bottle contained alcohol, nor was there evidence that defendant was drinking from the bottle while in the vehicle 'located upon [a] public highway [].'"

People v Carlton, __ AD3d __ [available here]: "[T]he summary denial of those parts of [defendant's] motion seeking suppression of the pistol and bullets and the items seized from his locker at work cannot be sustained . . . a suppression hearing is required to determine the disputed issue of whether the pistol and bullets were seized in plain view as part of the lawful search of defendant's premises . . . [and] a hearing is required to determine the further disputed issue of whether defendant consented to the search of that locker."

And the heartwarming decision of the month (as previously noted by Sui Generis here):

People v William S., __ AD3d __ [available here]: "Defendant was 16 years old at the time of the assault and had no prior criminal record. In addition, it appears from the record that the assault was precipitated by some racial name-calling by the victims and that defendant's older sisters were the primary perpetrators of the assault. We conclude that despite a difficult upbringing, defendant has the potential to lead a law-abiding life, and we deem it appropriate to modify the judgment as a matter of discretion in the interest of justice by adjudicating defendant a youthful offender." Kudos to the Court for taking a flyer on this kid.

Court of Appeals Overload!

The Court of Appeals handed down three more decisions today, all significant. This brings the total number of decisions handed down this week to six. Rather than string things out by posting about one decision a day, here are all five of the heretofore un-blogged about decisions, with a nutshell summary of the important holdings.

People v Lopez, __ NY3d __ [available here]

In a decision of impact for everyday appellate practitioners, the Court of Appeals (in a decision written by Chief Judge Kaye) holds that "when a defendant enters into a guilty plea that includes a valid waiver of the right to appeal, that waiver includes any challenge to the severity of the sentence. By pleading guilty and waiving the right to appeal, a defendant has foregone review of the terms of the plea, including harshness and excessiveness of the sentence." (People v Lopez, __ NY3d at __.) Given this holding, Judge Kaye stresses the care that must be taken in eliciting a waiver of the right to appeal:

Because only a few reviewable issues survive a valid appeal waiver, it is all the more important for trial courts to ensure that defendants understand what they are surrendering when they waive the right to appeal. Giving up the right to appeal is not a perfunctory step. [...] When a trial court characterizes an appeal as one of many rights automatically extinguished upon entry of a guilty plea, a reviewing court cannot be certain that the defendant comprehended the nature of the waiver of the appellate rights. The record must establish that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty . . . When a trial court inaccurately employs the language of forfeiture in a situation of waiver, it has mischaracterized the nature of the right a defendant was being asked to cede.

(Id. at __.)

Judge G.B. Smith dissented, and would have held that, because the Appellate Division's "interest of justice" jurisdiction is guaranteed by the New York Constitution, barring a defendant from "invoking the Appellate Division's interest-of-justice power to review and reduce sentences . . . is a divesture of the Appellate Division's power with regard to that defendant and a violation of article VI, section 4(k) of the New York State Constitution." (Id. at __.)

People v Miller, __ NY3d __ [available here]

In a decision written by Judge Rosenblatt, the Court of Appeals holds that Murder in the Second Degree is always an "inclusory concurrent count" of Murder in the First Degree, and therefore a defendant convicted of Murder in the First Degree is entitled to have any Murder in the Second Degree charges based on the same killing dismissed upon conviction of the Murder in the First Degree. As explained by Judge Rosenblatt, Murder in the First Degree is simply an intentional murder (i.e. a Murder in the Second Degree) plus an aggravating factor listed in the statute, and "it is impossible to commit intentional murder plus without at the same time committing intentional murder." (People v Miller, __ NY3d at __.)

People v DeCosta, __ NY3d __ [available here]

The Court of Appeals held the evidence was sufficient to support defendant's conviction for manslaughter in the second degree where defendant fled across a six-lane expressway and an officer was hit by a car and killed while giving chase. (See my previous post on this case here.)

People v Waldron, __ NY3d __ [available here]

The issue in Waldron was whether a certain chunk of time was chargeable to the People for speedy trial purposes. Defendant's attorney sent the prosecutor a letter asking the prosecutor to hold off presenting the case to the grand jury while plea negotiations continued, and the letter further stated "the defendant does hereby waive any speedy trial or other rights that he may have by your concurring in this request." (Waldron, __ NY3d at __.) However, defendant subsequently "sought and paid for the legal advice of another inmate", discharged his attorney, and brought his own speedy trial motion wherein he denied ever consenting to the waiver of his speedy trial rights. (Id. at __.) The Court of Appeals held "[o]n this record, where defendant's counsel explicitly waived speedy trial rights in order to complete ongoing plea negotiations, such time is excludable." (Id. at __.)

People v Burns, __ NY3d __ [available here.

The defendant in Burns was charged with murder after a shootout left the defendant injured and the victim killed. The defense argued that defendant was not the shooter, but rather he and the victim were both shot by the same "gang of Hispanic men." (Burns, __ NY3d at __.) A statement taken by the police from an identified witness "placed five armed Hispanic men a few New York City blocks away from the scene of the shootout on the same day at roughly the same time . . . [and] [a]fter declarant had walked about two blocks from the site of this encounter, he heard gunshots and sirens." (Id. at __.) The Court of Appeals found the trial court's exclusion of this statement on hearsay grounds did not violate defendant's constitutional right to present a defense because "the trial court offered defendant a 'so ordered' subpoena for declarant to testify and the opportunity to make an offer of proof." (Id. at __.)

CA: document kept in attorney's office can still be a "business record" under the Penal Law

People v Bloomfield, __ NY3d __ [available here]

The Court of Appeals handed down three criminal opinions yesterday. None are ground-breakers, but the most significant is People v Bloomfield, where the Court of Appeals considered whether there was enough evidence at trial "that fraudulent letters kept in the files of an enterprise's legal counsel, rather than at the company's headquarters, were 'business records' as defined by Penal Law section 175.00." (Bloomfield, __ NY 3d at __.) The trial court found the letters to be business records; a unanimous Appellate Division reversed, holding that because the letters were not found in the files or records of any of the enterprises involved but rather in the attorney's office, "they were not 'kept or maintained' by these" enterprises and thus not "business records". (People v Bloomfield, 15 AD3d 302, 304.) The Court of Appeals disagreed, and started its analysis by noting the Penal Law definition of a "business record", i.e. "any writing or article . . . maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity." (Bloomfield, __ NY3d at __.) Given that definition, Court of Appeals found, "contrary to the Appellate Division's holding, the actual location of the records is not dispositive as to whether the documents are business records under Penal Law section 175. Instead, location is merely a factor for the trier of fact to consider in determining whether the purpose of the records is to reflect or evidence the 'condition or activity' of the enterprise." (Id. at __.)

The definition of "business records" discussed in Bloomfield--i.e. defining the term for purposes of attaching criminal liability for such crimes as falsifying business records under the Penal Law--should not be confused with the definition of a "business record" for evidentiary purposes under CPLR 4518.

CA: Right to counsel that attached in 1998 does not preclude defendant from waiving counsel in 2001

People v Bongarzone-Suarrcy, __ NY3d __ [available here]

The Court of Appeals held, in a decision handed down this past Thursday, that a defendant's right to counsel that attached in 1998 (when the defendant was first questioned about a murder) "did not prevent defendant from waiving counsel and speaking to police in 2001", where the "police who questioned defendant in 2001 neither knew, nor reasonably should have known, of the attorney's entry" in 1998. (People v Bongarzone-Suarrcy, __ NY3d at __.) Nicole at Sui Generis has a full review of the decision here.

AD4: trial court's failure to read jury's note into record reversible error

People v Martin, __ AD3d __ [available here]

A jury in a murder trial sent out three notes to the judge during deliberations. The first note--asking the trial judge to repeat the jury charge for all three counts of the indictment--was ignored by the trial judge, who did not read the contents of the note into the record and did not respond to the note. (People v Martin, __ AD3d at __.) The jury sent out another note later, seemingly requesting a readback of the jury charge for count one of the indictment; the trial court did not read the note verbatim into the record, but did try to respond to the note by rereading the charge for count one. (Id. at __.) While the jurors were in the courtroom for the readback, a juror requested a readback of the jury charge for count two of the indictment. (Id. at __.) The trial judge complied with the request and gave the readback. (Id. at __.) About 30 minutes later, the jury sent out another note seemingly asking the court to repeat the jury charge for count three of the indictment; the trial judge did not read the note into the record, but did give the charge for count three again.

A majority of the Fourth Department found the trial judge's failure to read any of the jury notes into the record and the failure to respond at all to the first note was a "mode of proceeding" error that required reversal without regard to preservation or harmless error. From the decision:

We agree with defendant that reversal is required based on Supreme Court's failure to read into the record the jury's first note requesting, inter alia, 'definitions of 3 counts' and the court's failure to respond to that request. We further agree with defendant that reversal is also required based on the court's failure to read into the record the jury's second note requesting, inter alia, 'First Count 3 points'. The court's attempt to interpret and paraphrase that note does not serve as a substitution for the requisite notice to defense counsel 'of the actual specific content of the jurors' request'. with respect to both notes, 'the court's error[s] in failing to disclose the contents of the note[s] had the effect of entirely preventing defense counsel from participating meaningfully in this critical stage of the trial and thus represented a significant departure from the organization of the court or the mode of proceedings prescribed by law'. Thus, those errors are 'not subject to the usual rules of preservation'. Nor are the errors here subject to harmless error analysis. The failure to disclose the exact content of the jury's substantive inquires was 'inherently prejudicial,' effectively depriving defendant of an opportunity to evaluate those inquiries and to propose responses.

(Id. at __.)

Justices Scudder and Kehoe dissented. Although the dissenters agreed that the trial court erred by not responding to the first note, they did not approach the issue as a "mode of proceeding" error and would have required a showing of prejudice. Since the court covered all of the information requested in the first note in response to later jury notes, "the court's errors were cured by the jury's two subsequent notes and on-the-record request for that same information, and by the court's prompt and 'meaningful' responses to those subsequent requests." (Id. at __.) As to the failure to read the jury notes into the record, the dissenters would have required preservation:

Although . . . apprised of the existence and substance of the notes, defense counsel never made a request on the record to view the notes, never complained on the record about the court's failure to read the notes into the record verbatim, never suggested responses to the notes on the record, and never complained on the record about the adequacy of the court's responses to the notes. "[D]efense counsel's failure to object at a time when the court could have corrected the alleged errors renders defendant's contention[s] unpreserved for our review."

(Id. at __ [citations omitted].)

Hard to fault the reasoning of either the majority or dissenters here--as is so often the case, the framing of the issue (i.e. whether the mistake is characterized as a "mode of proceeding" error or not) dictates the outcome.

AD4: Bruton and Crawford violations require reversal

People v Kyser, __ AD3d __ [available here]

The Fourth Department handed down an interesting decision this past Friday that highlights the interplay (overlap?) of two landmark United States Supreme Court decisions--People v Bruton (391 US 123) and People v Crawford (541 US 36). The facts are typical of a Bruton situation--the defendant was a passenger in a vehicle where drugs were found, and both defendant and the codefendant driver were charged with possessing the drugs and each gave a written statement claiming the other man possessed the drugs. The defendant passenger "moved to sever his trial from that of his codefendant based, inter alia, on the ground that an out-of-court statement made by his codefendant would implicate him and he would be unable to confront and cross-examine the codefendant." (People v Kyser, __ AD3d at __.) The trial court denied the motion, "and the statement of the codefendant that he possessed the cocaine was admitted in evidence at the joint trial." (Id. at __.) This was clear reversible error under Bruton, and the Fourth Department so held and reversed accordingly.

But the Fourth Department also went a step further and reached defendant's unpreserved argument based on Crawford v Washington. From the decision:

Defendant further contends that reversal is required based on a Crawford violation. Although defendant failed to preserve his contention for our review, we exercise our power to reach defendant's contention as a matter of discretion in the interest of justice, and we conclude that reversal is required on that ground as well. The out-of-court statement of a witness that is testimonial in nature is barred under the Confrontation Clause unless the witness is unavailable and defendant had a prior opportunity to cross-examine the witness. Here, the out-of-court statement of the codefendant that implicated defendant in the possession of the cocaine was testimonial in nature and was offered for the truth of the facts asserted therein, and thus the admission of that statement in evidence was in violation of the Confrontation Clause.

(Id. at __.)

The practical result of the reversal on the Crawford ground is that not only will the defendant's retrial be severed from that of his codefendant (the remedy under Bruton, but the codefendant's statement will not be admissible under any of the classic hearsay exceptions. This is an interesting decision not only for the unique Bruton--Crawford interplay, but also because it is nice to see the Fourth Department reaching an unpreserved Crawford issue in the interest of justice.

AD4: City Court defendants not entitled to jury panel comprised solely of city residents

In re Oglesby v McKinney, __ AD3d __ [available here]

A criminal defendant standing trial in Syracuse City Court was provided a panel of prospective jurors "comprised of eligible residents of Onondaga County." (In re Oglesby, __ AD3d at __.) The defendant moved to strike the panel, "contending that he was entitled to a panel drawn solely from available jurors residing in the City of Syracuse." (Id. at __.) Defendant relied on section 500 of the Judiciary Law, which provides a criminal defendant in New York with the "right to grand and petit juries selected at random from a fair cross-section of the community in the county or other governmental subdivision wherein the court convenes [...]." (Judiciary Law 500.) The City Court judge agreed and struck the panel. The Onondaga County District Attorney--apparently uncomfortable with the idea of trying a city court case in front of a jury selected solely from city residents--commenced an Article 78 proceeding in Supreme Court, "seeking to prohibit [the City Court judge] from enforcing his order [...]." (Id. at __.) The Supreme Court granted the writ, and the case came before the Fourth Department on the City Court Judge's appeal.

The Fourth Department (in a decision written by Justice Gorski) converted the Article 78 proceeding to a declaratory judgment action, and came down in favor of the District Attorney, essentially because of the "or" connector in section 500 of the Judiciary Law; from Justice Gorski's decision:

By its express terms, Judiciary Law section 500 permits, in the alternative, the random selection of jurors from "the county or other governmental subdivision wherein the court convenes", but the statute does not mandate the selection of jurors from one jurisdiction to the exclusion of the other. [...] There presently is no mandate in Judiciary Law section 500 that a county commissioner of jurors provide a defendant in a criminal action in city court with a panel of prospective jurors comprised solely of residents of the city. Legislative action would be required for the imposition of such a mandate.

(Id. at __.)

I'm not sure I agree with this decision, only because a fair reading of section 500 of the Judiciary Law seems to contemplate a court's jurisdiction fitting its prospective jury pool--residents of a Town are the proper pool for Town Court cases, city residents are the pool for City Court cases, and County and Supreme Courts draw from a county-wide pool. This would seem to me to be the only real way to make the "fair cross-section" language a reality. Nevertheless, Justice Gorski's decision is based on a tight reading of the statute and not necessarily unreasonable.

What bothers me more is the fact that the Onondaga County District Court felt compelled to file an Article 78 proceeding to prevent the jury from being comprised solely of Syracuse city residents, i.e. more minorities than would be present in jury pool drawn from the county. In other words, the Onondaga County District Attorney does not want minorities sitting as jurors, and was willing to engage in protracted litigation (on the public dime) to make sure there are as few minorities in the city court jury pool as possible. Regardless of the legal merits, why should the District Attorney care if a city court jury is actually made up of city residents?

AD4: felony complaint supported by unidentified "eyewitnesses" is facially insufficient, cannot be supplemented by in camera submissions

Fitzpatrick v Rosenthal, __ AD3d __ [available here]

A Syracuse man was arrested without a warrant and arraigned before the Syracuse City Court on five felony complaints drafted and affirmed by a police detective. The complaints state "that the sources of the affirming detective's information are 'eyewitness accounts'," and "[n]o witness statement or police report was attached to any of the felony complaints." (Fitzpatrick v Rosenthal, __ AD3d at __.) Defense counsel argued that the complaints were facially insufficient; the District Attorney disagreed but argued in the alternative that the City Court was "required by law to consider evidentiary material submitted ex parte by the People for in camera review" to determine sufficiency. (Id at __.) The City Court agreed with defense counsel and tossed the felony complaints as facially insufficient to confer jurisdiction on the court. (Id at __.) The People commenced an article 78 in Onondaga County Supreme Court to challenge the City Court's ruling, and the Supreme Court found the complaints facially sufficient and reinstated the felony complaints.

On appeal, the Fourth Department (in an opinion written by Justice Hurlbutt) agreed with the City Court and reversed. Justice Hurlbutt first recognized that a felony complaint is only sufficient to confer jurisdiction over defendant if "the allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument." (Id. at __ [quoting CPL 100.40[4].) Further, "[w]here a demonstration of probable or reasonable cause is based on hearsay information, New York courts apply the Aguilar-Spinelli test, requiring that the hearsay affiant establish 'that the informant had some basis for the knowledge . . transmitted . . . and that [the informant] was reliable.'" (Id. at __ [brackets in original].) From that starting point, Justice Hurlbutt had little problem finding that the felony complaints--that only set forth the conclusory basis of the detectives information as "eyewitness accounts"--failed to meet the Aguilar-Spinelli test. The detective's conclusory characterization of the informant as an "eyewitness" gave no indication of the basis of the informant's knowledge, and reliability was not shown because "[n]o information was furnished to the court concerning whether the 'eyewitness accounts' came from an anonymous or a paid informant, in which event an independent showing of reliability would have been required, or whether those accounts came from an identified citizen informant, in which event there would be no need to furnish further evidence of reliability." (Id. at __.)

Justice Hurlbutt also rejected the People's argument that the City Court judge was required to go beyond the face of the felony complaint and consider additional information in camera before passing on the sufficiency of the complaints, instead holding as follows:

Both the District Attorney and the courts . . . are bound by the constitutionally-based statutory requirement that reasonable cause must be demonstrated on the face of an accusatory instrument in order to confer jurisdiction of the criminal action and control over the liberty of an accused person. The District Attorney's brief on appeal notes that, on the arraignment of Madison before Judge Rosenthal, "the prosecutor offered to try to orally confirm that the eyewitness identified [Madison] and was in a position to observe Madison." Assuming, arguendo, that the "eyewitness" was an identified citizen who both personally observed the criminal conduct and either knew or had identified Madison, we conclude that reasonable cause would have been established if such information had been included in an amended, supplemental, or replacement felony complaint. That did not occur, however, and thus Judge Rosenthal was not only authorized to dismiss the felony complaints, but indeed properly did so.

(Id. at __.)

To recap: in order to be sufficient, a felony complaint must contain facts setting forth all the elements of the crime charged, and if hearsay is relied on to make out the factual elements, it must be hearsay that passes the Aguilar-Spinelli test; moreover, the information must be in the felony complaint itself or attached to the complaint, and a criminal court judge is not required or allowed to consider any additional in camera information. A nice common-sense decision that clarifies an everyday point of criminal practice.

AD4: "day-reporting work release" = "incarceration"

People v Cagle, __ AD3d __ [available here.]

For purposes of sentencing a defendant as a second felony offender, the sentence on the prior felony conviction must be imposed "not more than ten years before the commission of the [present] felony." (People v Cagle, __ AD3d at __, citing Penal Law 70.06[1][b][iv].) However, any time that a defendant spends "incarcerated" does not count for purposes of computing this 10-year timeframe. (Penal Law 70.06[1][b][v].) In a 3-2 decision, the Fourth Department has held that any time a defendant spends out of physical custody in a day reporting work release program nevertheless counts as "incarceration" for purposes of tolling the 10-year period. From the decision:

We conclude 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. Furthermore, the period of time in which defendant was in that program was credited toward his sentence of imprisonment. We thus conclude that the tolling provision applies thereto.

(Id. at __.)

Justices Martoche and Pine dissented:

We disagree with the majority and instead agree with the Second Department that the statute is unambiguous and applies only to a defendant who is physically incarcerated. [...] While we agree with the majority that defendant remained in the control and custody of the Department of Correctional Services, we conclude that such control and custody is not the equivalent of incarceration for purposes of the statute. A person who is incarcerated necessarily is in the control and custody of law enforcement officials, but a person who is in the control and custody of law enforcement officials is not necessarily incarcerated.

(Id. at __.)

The Cagle decision sets up a split with the Second Department over the correct definition of "incarceration" for recidivist sentencing purposes, making the issue seemingly ripe for the Court of Appeals.

AD4 strikes down "Rochester Initiative" roadblocks

People v Trotter, __ AD3d __ [available here]

The Fourth Department handed down decisions for its January term today. I am out of town and will not be able to post fully until Monday. It seems the most significant criminal decision is People v Trotter, where the Fourth Department affirmed the trial court's suppression of drugs found in a car stopped at a roadblock as part of the so-called "Rochester Initiative". The Initiative targeted the "crescent" section of Rochester. Roadblocks were part of a general crime suppression plan; as the Fourth Department notes in its decision, "During the two-month period of the Rochester Initiative, 46 checkpoints were conducted, all at night, all in the target area, and all by personnel from the three participating law enforcement agencies." (Trotter, __ AD3d at __.) The People argued the roadblocks were constitutional because regardless of the overarching purpose of the Initiative, the police running the checkpoints "were instructed and did engage in checking each vehicle stop for windshield stickers, driver's licenses and registrations." (Id. at __.) The Fourth Department disagreed and held the stops unconstitutional:

Were we to examine the checkpoint procedure independently of the underlying function of the task force, we would conclude that there would be no constitutional infirmity. The officers stopped every vehicle, whereupon they checked the windshield stickers, driver's licenses and registrations. According to the testimony at the suppression hearing, if all was in order, the officers sent the drivers "on their way." Standing alone, such a checkpoint would be a permissible routine highway safety-related stop under Edmond and Prouse. The checkpoint was not, however, conducted in isolation. Rather, the record establishes that the checkpoint was an inseparable part of the Rochester initiative, the purpose of which was to detect and deter violent crime and drug trafficking in the target area by the use of the checkpoint . . . [a]ccordingly, we conclude that the order suppressing the evidence at issue should be affirmed and the indictment dismissed.

The Fourth Department made the right call on this issue. If the People's argument was adopted, then any roadblock could be insulated from constitutional challenge as long as the police check registration stickers as part of the stop. Such an exception would swallow the general rule that a roadblock set up "to uncover evidence of ordinary criminal wrongdoing . . . contravenes the Fourth Amendment." (Id. at __.)

Regular posting to resume next week.

"Tainted Trials, Stolen Justice": a rare look at a flawed appellate court

The San Jose Mercury News has a sobering series of articles up under the title Tainted Trials, Stolen Justice." (Hat tip: Arbitrary and Capricious.) Of particular interest is the attention paid to the criminal appellate courts. From the first article in the series:

The 6th District Court of Appeal, the primary court of review for Santa Clara County cases, upheld verdicts in more than 100 cases even as it acknowledged errors had occurred. The appellate court simply concluded those errors made no difference in the outcome of the case. Sometimes those conclusions were appropriate, but a review of the appellate record and consultations with experts established that in more than 50 cases the court misstated facts, twisted logic and devised questionable rationales to dismiss the error.

In nearly all the cases, the 6th District designates its opinions as ``not to be published'' -- a distinction that means they are not to be cited as legal authority in subsequent cases, and thus have little relevance beyond the parties to a case. The Mercury News found that higher courts are extremely unlikely to review unpublished opinions, making the 6th District the final word on most criminal trials in Santa Clara County.

It is nice to see scrutiny given to every stage of the criminal process, and not just the trial itself. I do not think I have ever read another article even discussing the role of an intermediate criminal appellate court--yet the Mercury News article manages not only to shine a light on a dark area of the process, but it does so in a way that levels serious criticism in a fair manner. Well worth a read.

AD3: County Court's withholding of Sandoval ruling until after People's case reversible error

People v Cross, __ AD3d __ [3d Dept 2006] [available here]

In a decision handed down last Thursday, the Third Department held "that defendant is entitled to a new trial because County Court withheld its Sandoval determination until after the People had rested." (People v Cross, __ AD3d at __.) From the decision:

Here, despite defendant's pretrial motion and counsel's request for a ruling before opening statements, County Court did not address the Sandoval issue until after the People rested. By that time, defendant had presented an opening statement and cross-examined all of the prosecution witnesses, committing himself to a defense strategy that would appear to require defendant's testimony. After the court's Sandoval ruling, defendant declined to testify. Because the defense strategy may well have been different if the court had issued its Sandoval ruling before the trial began, we feel constrained to reverse and grant defendant a new trial.

(Id at __.)

I'm not sure how useful this decision will be--most trial courts rule on any Sandoval application before opening statements. But, not a bad arrow to have in your quiver if the situation calls for it. Also, the "defense strategy may well have been different" language could be useful for appellate defense attorneys who can raise a valid Sandoval issue but are faced with a harmless error problem.

Some other decisions of note from the Third Department's January 26 packet of decisions:

People v Jackson, __ AD3d __ [3d Dept 2006] [available here]

The defendant on direct appeal argued that his sentence was illegal because it was not "capped" pursuant to CPL section 70.30. The Court held that a direct appeal was not the proper vehicle for addressing the "cap" issue: "[t]he calculation of the aggregate sentence for consecutive sentences such as those involved here is generally done by the Department of Correctional Services, and any alleged error may be challenged in a proceeding pursuant to CPLR article 78." (Jackson, __ AD3d at __ [citations omitted].)

People v Blair, __ AD3d __ [3d Dept 2006] [available here]

The Court agreed with defendant that his kidnapping charges should have merged with the other charges: "[h]ere, defendant attempted to push the victim a very short distance and grabbed her legs, restraining her momentarily before she got away. The only evidence is that he assaulted her while he attempted to force her into the wooded area to kill her. Inasmuch as the abduction was both minimal and part of the assault and attempted murder, the merger doctrine applies and necessitates reversal of defendant's conviction of the crime of attempted kidnapping in the second degree." (Blair, __ AD3d at __.)

New Blawgs Added

Welcome to AlaskaBlawg, Blonde Justice, Gideon's Guardians, and Public Defense, all added today to the Blawgs list over to the left.

Local criminal defense attorney honored

Don Thompson, one of the best criminal defense attorneys in Rochester, will receive the Charles F. Crimi Memorial Award from the New York State Bar Association today for his superb work on behalf on indigent defendants. Don is featured prominently in a Democrat and Chronicle article about the NYSBA awards here. Some bits from the article:

Thompson's colleagues say they see similarities between him and Crimi, the late defense lawyer. Thompson, like Crimi, doesn't think the level of defense a person receives should be based on the resources he or she has.

"Don's one of those rare individuals that is committed not only to the practice of criminal law and the vigorous representation of his clients but the pursuit of the fundamental elements of justice, which the system is based on," said defense lawyer Lawrence Kasperek, who shares office space with Thompson in downtown Rochester.

"Those people are not only rare but they're vital to the proper function of the criminal justice system."

Thompson, 46, admits that he is fueled by an insistence that the criminal justice system can operate better.

"I believe that we potentially have the best system of justice that we could hope for, but you can't just sit back and hit the cruise control and expect it to work," he said. "It's my life so I'm kind of committed to being part of a system that I can be proud of."

In recent years, Thompson has worked with the New York City-based Innocence Project to try to secure genetic testing in cases in which he contends the wrong people may have been convicted. Those cases have triggered legal clashes with prosecutors, who often maintain that the evidence against the convicted is overwhelming.

"Probably one of the biggest compliments I've ever received, and it wasn't meant as a compliment, was (when) a district attorney characterized me as a 'true believer,'" Thompson said.

Doing indigent defense work is usually a thankless job, so it is nice to see Don--one of the true good guys of the local criminal bar--get some much deserved recognition. Congratulations!

The Supremes: Greatest Hits (vol. 2)

Crawford v Washington, 541 US 36 [2004] [available here]

An instant classic, Crawford v Washington has managed to flip everyday criminal trial and appellate practice in New York on its ear. I have posted more on Crawford than any other criminal decision in the nine months or so that this blog has been up and running, simply because the fallout from Crawford is so widespread. Previously settled trial practices are being questioned. Can the People in a murder trial simply have a substitute medical examiner opine as to manner and cause of death based on an autopsy report prepared by a non-testifying medical examiner, or is the autopsy report testimonial hearsay? Can the People play a 911 tape for the jury, or is the call testimonial hearsay? Does Crawford apply at recidivist sentencing hearings in New York? Is a simple "affidavit of mailing" testimonial hearsay? The Fourth Department says yes, but it is by no means clear that the U.S. Supreme Court would reach the same conclusion. What about breathalyzer calibration records?

All great questions, and all questions Justice Scalia deliberately left for another day by not setting forth a comprehensive definition of 'testimonial' in Crawford. The Court of Appeals has recently weighed in and defined "testimonial" very broadly--a nice development for New York criminal defendants. But we will just have to wait and see if the Supremes are as generous when they get around to deciding the issue.

The Supremes: Greatest Hits (vol. 1)

Gideon v Wainwright, 372 US 335 [1963] [available here]

To combat the usual lull in posts around here that happens between the Fourth Department's terms, I've decided to post periodically on important or historical criminal decisions (both New York and federal). I thought it appropriate to start with Gideon v Wainwright, the 1963 Supreme Court decision that established the right to counsel for poor people and led to the establishment of public defender offices to provide legal services for indigent defendants. The majority opinion eloquently sets forth the justification for extending the right to counsel to poor people:

[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crimes, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the wide-spread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

(Gideon v Wainwright, 372 US 335, 344 [1963].)

A post over at Arbitrary and Capricious got me thinking of Gideon today; check out Skelly's great post linking to an in-depth article giving a rare glimpse into the life of a newly minted assistant public defender (warts and all).

New decisions February 3

The Fourth Department will hand down decisions for cases argued during its January term on February 3. Until then, I hope to highlight some cases of interest from the other Appellate Divisions.

WDNY: Appellate counsel ineffective for failing to raise strongest issue on appeal

Mullins v Bennett, 00-CV-0136


In a decision filed today by Magistrate Judge Bianchini, the U.S. District Court for the Western District of New York granted petitioner's writ of habeus corpus based on ineffective assistance of appellate counsel, finding that "counsel overlooked the strongest state law argument that his client had in favor of barely colorable claims" and the Fourth Department engaged in an "unreasonable application" of the federal test for ineffective assistance of counsel in resolving "the deficient-performance aspect of Mullins' ineffective assistance of counsel claim against him." (Mullins v. Bennett, 00-CV-0136.)

On direct appeal at the Fourth Department, Mr. Mullin's appellate counsel raised three issues: first, that the trial court should have granted trial counsel's motion for severance; second, that the evidence was legally insufficient; and third, that the prosecutor's misconduct deprived Mr. Mullin of a fair trial. The Fourth Department affirmed Mr. Mullin's conviction, and the Court of Appeals denied leave. Mullins subsequently filed a writ of error corim nobis on the ground that his appellate counsel was ineffective for failing to raise a properly preserved Batson argument (the trial prosecutor struck the only black member of the jury venire and offered a flimsy race-neutral explanation). The Fourth Department denied the writ, and Mullins petitioned the Western District Court for a writ of habeus corpus.

The WDNY noted the standard to be applied when an ineffective assistance of appellate counsel claim is grounded on appellate counsel's failure to raise a specific issue on appeal: "Whether the neglected appellate issue is based on federal or state law, the burden rests on [the defendant] to show 'that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker.'" (Id.) The WDNY had no problem concluding that the issues raised by Mr. Mullin's appellate counsel on direct appeal were weak--the Court held it was "pointless for appellate counsel to have bothered raising the severance argument. The insufficiency-of-evidence and prosecutorial misconduct arguments were somewhat stronger than the severance argument, but that is not saying much." (Id.)

The part of the WDNY's decision that is interesting to me is the next part of the analysis, i.e. the Court's finding that Mr. Mullin's Batson claim would have had a "reasonable probability" of success before the Fourth Department and therefore Mr. Mullin was prejudiced by his appellate attorneys failure to raise the Batson issue on direct appeal. Don't get me wrong--I think Mr. Mullen's Batson argument is a strong one--the trial prosecutor struck the only black member of the jury venire because (and I'm paraphrasing) the prosector did not like social workers (and the venire member worked as a "food service supervisor . . . at a facility that provided mental health services") and the juror seemed "skittish". (Id.) However, the overall success rate for criminal defendants on direct appeal to the Fourth Department is dismal, clocking in at about 5% for substantive reversals (i.e. not technical errors or sentence reductions). So I think it is a touch optimistic to say that a criminal appellant raising a strong Batson argument (or any other argument) before the Fourth Department has a "reasonable probability" of success. Still and all, a good and welcome result for Mr. Mullins.

3rd Dept: photo array that "depicted [the bearded] defendant alongside five males whose facial hair appeared to be drawn in" NOT unduly suggestive

People v Colon, __ AD3d __ [available here]

The defendant in Colon sported "unusual facial hair." (People v Colon, __ AD 3d __, __ [3d Dept 2005].) So when it came time to construct a photographic array, the police put defendant's photo "alongside five males whose facial hair appeared to be drawn in." (Id.) The Third Department refused to find the array unduly suggestive, despite agreeing that "certain of the photographs could have been better altered." (Id. at __.) No word yet on whether budding police Rembrandts can legally pencil in black eyes, devil horns or cheek scars.

Sample photo array: