CA: 1,000 words are worth a picture

People v Kozlow, 2007 NY Slip Op 03592 [available here]

The defendant in Kozlow was convicted of disseminating indecent materials to minors in the first degree. To be guilty under the statute, a defendant must disseminate indecent materials to a minor and use the communication to convince the minor to engage in sexual contact with the defendant. (Kozlow, 2007 NY Slip Op 03592.) To fall within the statute, the electronic communication must "depict" nudity or sexual conduct. (Id. at __.)

The defendant in Kozlow sent emails to an investigator posing as a minor. The emails described, in writing, various sexual acts. (Id. at __.) No pictures were sent. On appeal, the defendant argued that, since the emails did not include pictures, the messages did not "depict" sexual acts. The Court of Appeals (in a majority opinion by Judge Pigott) disagreed. While noting that the word "depict" has its origins in a Latin word meaning "to paint", and that one definition is "to represent in a picture", "the word 'depict' also has a standard sense of 'to represent or portray in words' and it has been used in that manner since the colonial era." (Id. at __.) "Defendant's argument . . . that the Legislature was seeking to criminalize the luring of a child into a sexual encounter by transmission of visual images, while leaving a loophole allowing a predator to lure a child into sex through transmission of words alone, falls of its own weight." (Id. at __.)

Justice Smith dissented, and would have interpreted "depicts" in its common, narrow sense; "to represent by a picture." (Kozlow, 2007 NY Slip Op 03592 [SMITH, J., dissenting].)

AD4: Decisions for April 20, 2007

People v Garrison, 2007 NY Slip Op 03367 [available here]

A majority of the Court voted to reverse Mr. Garrison's conviction for depraved indifference murder in the interest of justice, noting "the trial evidence establishes defendant's use of a weapon with a 'manifest intent to kill' the victim, thus negating the essential elements of recklessness and depraved indifference and rendering the evidence legally insufficient to support a conviction of depraved indifference murder." (Garrison, 2007 NY Slip Op 03367 at __.)

Justices Smith and Lunn dissented. First, they would not have reached the issue in the interest of justice. Second, they would have found the evidence legally sufficient to sustain Mr. Garrison's depraved indifference murder conviction. The dissent notes "[t]here is no indication that defendant had any animosity toward decedent" (except the fact that defendant shot decedent in the head from point-blank range) and "[w]ithout provocation, defendant raised a gun, which discharged, and the projectile struck decedent in the head." (Id. at __.) "In addition, in light of the confined quarters in the foyer and the number of people there, it was unquestionably reckless to brandish a loaded weapon." (Id. at __.) On that last score, the dissenters are arguably correct; as to all of the other people in the room, defendant acted recklessly. As to the guy he shot point blank in the head, it is hard to see how defendant acted other than intentionally. A strange dissent.


People v Martinez, 2007 NY Slip Op 03383 [available here]

Mr. Martinez was "forcibly detained" because he matched the description of a robber, he was 1 1/2 blocks from the robbery scene, and he "was sweating and breathing hard." (Martinez, 2007 NY Slip Op 03383.) A roll of coins was found in defendant's pocket, and he later gave a statement to the police. (Id. at __.) The trial court refused to suppress the coins and the statement, reasoning that they "were the products of a lawful arrest." (Id. at __.) The Fourth Department took the unusual step of substituting its own judgment in place of the lower court's, and concluded that defendant was not under arrest but rather "forcibly detained." According to the Court, the police "had reasonable suspicion to believe that he was involved in the robbery and thus were entitled to detain him for purposes of a showup identification procedure." (Id. at __.)

This is a dangerous (but all-too-common) shortcut in the Court's Fourth Amendment analysis. The police are only entitled to "detain" someone for purposes of a showup if the detention is substantially less intrusive than full custody. The test for custody is whether a reasonable, innocent person in defendant's position would feel free to leave. In this case, defendant was handcuffed even after the police determined that he was not armed, and there is not indication from the decision that the defendant was anything less than cooperative or that the police explained that they were detaining him for purposes of conducting a quick showup identification. Given that, it would seem a reasonable, innocent person in the defendant's position, i.e. a person who is presumably cooperating, is not armed, did not attempt to flee, and who is nevertheless handcuffed and locked in the back of the police cruiser without explanation, would not feel free to leave. (See e.g. People v Hicks, 68 NYd 234 [1986].) The Fourth Department does not even mention the test for custody, and instead collapses the analysis down to reductive algebra; if the defendant is ultimately detained only briefly and a showup is conducted, any detention--no matter how intrusive--will be consistent with the Fourth Amendment.

People v Jones, 2007 NY Slip Op 03391 [available here]

The defendant in Jones was stopped based on a "noise ordinance" violation. As the officer reviewed the defendant's license and registration, the officer "observed defendant reach toward the passenger side of the vehicle, and they feared that defendant was retrieving or concealing a weapon." (Jones, 2007 NY Slip Op 03391.) The police took Jones out of the vehicle, and proceeded to toss his car; the officers searched not only the front passenger area (i.e. the area where Jones was grabbing for what the police thought might be a weapon), but also the back seat. The police found nothing in the front seat, but found a scale with some crack residue on it in the back seat.

The Fourth Department held that the officer's search exceeded the justification that existed. "Under those circumstances, the police were justified in conducting a limited search of those parts of the vehicle in which they had observed defendant's furtive movements, i.e., the front passenger area and center console. The search should have ended, however, when the police found no weapon or contraband in the front passenger area and center console." (Id. at __.)

People v Martin, 2007 NY Slip Op 03444 [available here]

Then 17-year old Jovan Martin asked to speak to his grandmother while being interrogated by a Rochester police investigator. The investigator told Mr. Martin that he could speak with his grandmother when the interrogation was over. On appeal, Mr. Martin argued that the police were not at liberty to ignore his request to contact his family, and by doing so the police deliberately cut off the avenue by which Mr. Martin was most likely to obtain counsel. The Fourth Department affirmed, holding that because Mr. Martin was legally an adult he had no right to have police present, and that suppression is only required if "the isolation result from official deception or trickery." (Martin, 2007 NY Slip Op 03444.) The Court is wrong on both scores.

The first part of the Court's analysis misses the point; Mr. Martin was not arguing that he had the constitutional right to have grandma ride shotgun for the interrogation. Rather, Mr. Martin's argument was based on the premise (expressly embraced by the Court of Appeals) that a youthful suspect's request to contact family is the equivalent of a request for an attorney because a young person will view his family as the best way to go about securing counsel. (See Bevilaqua, 45 NY2d 508, 513 [1978].)

The second part of the Court's analysis--grafting on some requirement of chicanery by the police--imports caselaw that is only applicable to a very different factual scenario. If the defendant does not request to speak with his family, but the family shows up anyway and requests to see the defendant, the police are under no obligation to cease questioning if the defendant is legally an adult. (People v Lewis, 277 AD2d 1010 [4th Dept 2000].) However, if the police lie to the family members--by telling them the police don't have the defendant in custody, or sending the family to a different precinct--then suppression is appropriate even if the defendant never asks to consult with his family. (See Page, 225 AD2d at 833; Salaam, 83 NY2d at 55.)

The facts of Martin are very different; the suspect himself asked to call his family. The Court of Appeals has been quite clear that the police are not at liberty to simply ignore a youthful suspect's request to contact family. (See Bevilacqua, 45 NY2d at 513 [suppressing then 18-year-old's statement where defendant requested to contact his mother during interrogation and that request was denied].) The Fourth Department ignores Bevilacqua, and instead imports a requirement from Salaam and Page--requiring some sort of trickery where it is the family trying to contact the suspect--and clumsily applies it to a factual scenario it was never intended to cover.

People v Owens, 2007 NY Slip Op 03500 [available here]

At defendant's hearing to determine if he was a persistent violent felony offender, a fingerprint examiner testified that he compared defendant's known prints to those on file with NYSDOCs and the prints matched. The fingerprint examiner took notes while conducting the comparison, but threw them in the trash before testifying. The trial court imposed no sanction, and the Fourth Department reversed. "Here, the notes were the only written record of the 10 points of similarity between the various sets of fingerprints and were the only means by which defendant could effectively cross-examine the fingerprint examiner. Defendant thus was prejudiced by the destruction of the notes, and the court erred in failing to impose any sanction." (Owens, 2007 NY Slip Op 03500.)

CA: Decisions for April 3, 2007

People v Havrish, 2007 NY Slip Op 02787 [available here]

Pursuant to an order of protection, the defendant in Havrish was required to surrender his firearms to police. (Havrish, 2007 NY Slip Op 02787.) Defendant complied with the order and turned over his guns; one of the handguns was not licensed, and defendant was ultimately charged with criminal possession of a weapon in the fourth degree. (Id. at __.)

The defendant argued that his Fifth Amendment right against self-incrimination covered the act of turning over the weapons, and the Court of Appeals (in a decisions written by Judge Graffeo) agreed. While acknowledging that "a person can be forced to produce real or physical evidence without offending the privilege against self-incrimination," the Court nonetheless held that in Havrish's case "the very act of production ha[d] communicative or testimonial aspects." (Id. at __.) "The statements defendant made — advising police that he owned a revolver and indicating where it was — went no further than what a person complying with such an order would have been expected to communicate. They were therefore central to and part of the act of production. And that act was the exclusive source of evidence the People relied on in pursuing the prosecution for criminal possession of a weapon." (Id. at __.)

CA: Decisions for March 27 & 29, 2007

People v LeGrand, 2007 NY Slip Op 02588 [available here]

The Court holds that the trial court's refusal to allow the defense to put on an expert witness to testify about the reliability of eyewitness identification was an abuse of discretion where the "case turned solely on the accuracy of the witnesses' identification." (LeGrand, 2007 NY Slip Op 02588.) If there is other corroborating evidence beyond the eyewitness testimony, then a defendant is probably out of luck. "In the event that sufficient corroborating evidence is found to exist, an exercise of discretion excluding eyewitness expert testimony would not be fatal to a jury verdict convicting defendant." (Id. at __.) Not sure how this squares with Holmes v South Carolina, 2006 WL 1131853 ["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.'"].)

People v Rowland, 2007 NY Slip Op 02630 [available here]

It is well-settled that a defendant is "entitled to withdraw his guilty plea where the plea had been induced by a promise that the defendant's prison sentence would be concurrent with his sentence on a previous conviction and where, because the previous conviction was overturned, the promise could not be kept." (People v Rowland, 2007 NY Slip Op 02630 [available here].) Usually, the prior sentence is longer than the guilty plea sentence, and the reason the defendant pleads guilty is because the promise of a concurrent sentence means no additional jail time. But what if the guilty plea sentence is the longer of the two? Not dispositive, says the Court of Appeals; "the rule of Pichardo applies even where the second sentence is longer, and thus the promise of concurrent sentencing does not mean that no additional time will result from the guilty plea." (Id.) "The critical question is whether the removal or reduction of the pre-existing sentence nullified a benefit that was expressly promised and was a material inducement to the guilty plea . . . here, we cannot say defendant would have accepted the plea bargain in the murder case had it not been for his two-to-four-year sentence in the stolen property case, now reduced to a year." (Id. at __.)

Judge Graffeo dissented, reasoning that the Pichardo should not apply because "there is ample record support for the conclusion that defendant would have accepted the plea offer even if he had not been previously convicted of criminal possession of stolen property." (Id. at __ [GRAFFEO, J., dissenting.)

AD3: Decisions for March 8 & 15, 2007

All's quiet in Albany. Two decision packets, one notable decision.

People v Mccloud, 2007 NY Slip Op 10991 [available here]

Defendant appealed from an Order served on him March 30, 2006. Instead of filing a regular notice of appeal, the defendant asked the Third Department directly for permission to appeal. This request was made on April 24, 2006, i.e. within the 30 day period to file a notice of appeal. (Mccloud, 2007 NY Slip Op 01991.) The Third Department denied his request "because he was entitled to take an appeal as a matter of right." (Id. at __.) But by now defendant's time to file a notice of appeal had expired, and his notice of appeal was not filed until May 15, 2006. The Third Department allowed the appeal; "[u]nder the unusual circumstances of this case, we will deem defendant's motion for leave to appeal as a notice of appeal." (Id. at __.)

AD2: Decisions for March 6 & 13, 2007

People v Lampon, 2007 NY Slip Op 02140 [available here]

The Second Department held the defendant's challenge to the sufficiency of the evidence to support his depraved indifference murder conviction was not properly preserved where trial defense counsel argued only that the count should be dismissed because "the defendant's conduct was not consistent with 'recklessness.'" (Lampon, 2007 NY Slip Op 02140.) "There was evidence of intoxication presented at trial which the jury could have found negated the defendant's intent to kill without negating the defendant's reckless state of mind." (Id. at __.) Trial defense counsel did not go on to argue that the defendant lacked the required "depraved indifference" mens rea, and the Second Department declined to reach the issue in the interest of justice. (Id. at __.)

People v Benson, 2007 NY Slip Op 01891 [available here]

People v Sebastian, 2007 NY Slip Op 01903 [available here]

The Second Department continues to give defendants specific performance of their plea terms; if no postrelease supervision is discussed at plea or sentencing, then the postrelease supervision is not part of the sentence and the defendant does not have to comply with it. (Benson, 2007 NY Slip Op 01891 ["Neither the sentencing minutes nor the court's order of commitment mentioned the imposition of any period of post-release supervision. Therefore, the sentence actually imposed by the court never included, and does not now include, any period of post-release supervision."].) The Fourth Department's decisions in this area are different; if postrelease supervision is mandatory, then failure to impose the postrelease supervision at sentencing renders the sentence illegal and the appellate court is bound to vacate the sentence and remand (even if none of the parties on appeal request such relief). (See, e.g., People v Davis, 2007 NY Slip Op 00929.)

People v John, 2007 NY Slip Op 01896 [available here]

The trial court should have reopened the suppression hearing where the officer testified at suppression that a skimask was found only after defendant was identified by an eyewitness, but at trial the witness testified that the officer showed her the skimask before she made the identification. (John, 2007 NY Slip Op 01896.) The fact that another judge presided over suppression did not make the suppression decision the "law of the case", and the hearing should have been reopened because the witness' trial testimony "directly implicated the hearing court's finding of probable cause, and raised more than a question of credibility." (Id. at __.)

AD1: Decisions for March 6, 8, 13 & 15, 2007

All is quiet down at the First Department. Four packets, two notable decisions. Here they are.

People v Wilder, 2007 NY Slip Op 02024 [available here]

After responding to a reported street fight, a police officer took one of the fight participants aside and had him drop the two black plastic bags he was holding. The officer then looked inside the bags. The First Department upheld the search; "[t]his minimal intrusion was not unlawful, but justified by the officer's founded fear that the bags may have contained a dangerous instrument." (Wilder, 2007 NY Slip Op 02024.)

People v Gatling, 2007 NY Slip Op 01811 [available here]

The Court held that a suspect was not under full de facto arrest despite "the fact that the police detained defendant at gunpoint and used handcuffs [...]." (Gatling, 2007 NY Slip Op 01811.) The stop was a so-called "investigative detention", and the use of guns and handcuffs was "fully justified . . . as a precautionary measure during the brief period in which the police awaited the arrival of the victim." (Id. at __) No discussion of whether a reasonable, innocent person would feel free to leave upon being handcuffed at gunpoint.

AD4: Decisions for March 16, 2007

Sorry for the brief hiatus. Occasionally, life and work demands intrude on my blogging time. I am going to go out of chronological order and post on the new Fourth Department decisions, with the intent to go back and post on the other Departments' decisions when time permits.

People v Stroman, 2007 NY Slip Op 02388 [available here]

The Fourth Department granted defendant's writ of error coram nobis based on appellate counsel's failure to "raise an issue on direct appeal that would have resulted in reversal, specifically, in failing to argue ineffective assistance of counsel." (Stroman, 2007 NY Slip Op 02388.)

People v Loper, 2007 NY Slip Op 02168 [available here]

The majority (in a memorandum opinion) ordered the defendant's sentences for Burglary in the Third Degree (Penal Law 140.20) and Unauthorized Use of a Vehicle in the First Degree (Penal Law 165.08) to run concurrent, apparently because an element of the latter crime is that the vehicle be taken "with the intent to use the same in the course of or the commission of" a felony, and therefore the Burglary 3rd was a necessary element of the Unauthorized Use of a Vehicle 1st. (Loper, 2007 NY Slip Op 02168.) Justices Scudder and Green dissented, noting that the actual commission of the underlying crime (here a Burglary 3rd) is not required to establish Unauthorized Use of a Vehicle 1st, but rather the "individual's intent to use the vehicle in such manner is all that is required." (Id. at __.)

People v McCullough, 2007 NY Slip Op 02184 [available here]

The Fourth Department reversed defendant's conviction in the interest of justice where a police witness bolstered the lineup identifications of the only two eyewitnesses to the bank robbery and "[t]he sole contested issue at trial was the identification of the perpetrator, and the evidence of identification is not overwhelming." (McCullough, 2007 NY Slip Op 02184.) I was the attorney on appeal for Mr. McCullough, and I was surprised by this decision because the main issue on appeal was ineffective assistance of counsel. Defense counsel fell asleep at key points of the trial, failed to request a Wade hearing to challenge the eyewitness identification evidence, and elicited damaging testimony from the People's witnesses during cross-examination. The unpreserved bolstering issue was a bit of an afterthought, both in the brief and at oral argument. I guess it never hurts to give the Court another hook to hang its hat on just in case there is reluctance to reverse on your main point.

People v May, 2007 NY Slip Op 02223 [available here]

The trial court erred in failing to charge the jury on the affirmative defense of entrapment. Defendant was a prisoner charged with Criminal Possession of a Weapon in the Third Degree. The weapons at issue were procured by the defendant after he agreed to round up illegal weapons for a correction officer in exchange for television privileges. Based on that evidence, entrapment should have been charged because the jury could have found that defendant was encouraged to possess the weapons and would not have possessed the weapons if not encouraged to do so by the correction officer. (May, 2007 NY Slip Op 02223.)

People v Austin, 2007 NY Slip Op 02224 [available here]

Police had reasonable suspicion justifying the pursuit of defendant where the defendant was one of many young men hanging out on "the porch of a house known to be occupied by elderly people", a "high traffic" of people came and went from the porch, one man in the group admitted to possessing marijuana upon questioning by the police, a bag of marijuana was "recovered", and defendant "fled the scene when the officer asked to speak with him [...]." (Austin, 2007 NY Slip Op 02224 at __.)

People v Manor, 2007 NY Slip Op 02239 [available here]

The Court held defendant's sentence for Criminal Possession of a Weapon in the Second Degree must run concurrent with the sentence on the murder conviction because there was no "evidence that defendant intended to use his weapon unlawfully against another apart from its use in the shooting [...]." (Manor, 2007 NY Slip Op 02239 at __.)

People v Chatman, 2007 NY Slip Op 02273 [available here]

The Fourth Deparmtent held the trial court should have suppressed defendant's statement. Although the facts are not recited in the court's opinion, I was Mr. Chatman's attorney on appeal and can fill in the blanks. The police tried to pull Mr. Chatman over for a seatbelt violation. A low-speed chase ensued. Mr. Chatman ditched the car and took off on foot, and was eventually brought to the ground and handcuffed by the police. The chasing officer immediately asked Mr. Chatman why he was running. I argued that Mr. Chatman was in custody (because he would not feel free to leave after being chased down, tackled and handcuffed), and the officer's question (essentially "why did you run?") was interrogation because it was an invitation to explain whatever criminal conduct prompted the flight and was thus likely to elicit an incriminating response. The Fourth Department agreed "that the court should have suppressed the statement", but found the error harmless. The Court also agreed that the trial court erred in refusing to charge the jury "with respect to the voluntariness of the statement", but found that error harmless, too.


People v Black, 2007 NY Slip Op 02274 [available here]

The Fourth Department reversed defendant's rape conviction and dismissed that count of the indictment where the indictment charged defendant with one act of rape on a certain date and the evidence at trial established two separate completed rapes happened that day. (Black, 2007 NY Slip Op 02274.) An interesting note here: the Fourth Department found the issue unpreserved, but reached it in the issue of justice. This is a subtle but important shift in the preservation requirements for an issue like this. Traditionally, the Fourth Department has not imposed a preservation requirement for this type of error. (See People v McNab, 167 AD2d 858.)

People v Lemon, 2007 NY Slip Op 02296 [available here]

The defendant's sentences for Robbery 1st must run concurrent to the murder sentences where "the act constituting each count of intentional murder, i.e. stabbing the victims, is the same act that caused the serious physical injury for purposes of each robbery conviction." (Lemon, 2007 NY Slip Op 02296.)

People v Lunetta, 2007 NY Slip Op 02304 [available here]

The Fourth Department found the evidence in support of defendant's conviction for Assault 2nd--that the victim had a bump on her head, a bruise on her arm and two swollen fingers--was legally insufficient. The evidence was "legally insufficient to establish that the victim suffered either 'impairment of [a] physical condition' or 'substantial pain.'" (Lunetta, 2007 NY Slip Op 02296.)

People v O'Neal, 2007 NY Slip Op 02305 [available here]

I have a soft spot for this case. I was the attorney for Mr. O'Neal on appeal, and I argued that the evidence was not sufficient to support my client's conviction for possessing an imitation controlled substance (i.e. fake crack) because, while the officer field tested the crack-like substance found in Mr. O'Neal's pocket and the results were negative, the negative results were not confirmed by a formal laboratory analysis. There is good case law that holds a positive field test, standing alone, is not sufficient to establish that drugs are real. My argument was that the same is true in reverse, i.e. a negative field test could not be enough to establish that my client had fake crack and not the real thing.

I think the Court might have agreed with me, except for the fact that a drug addict had sampled my client's wares immediately prior to my client's arrest, and in the addict's opinion the substance tasted like wax and was not real crack. The Fourth Department held that the combination of the addict's testimony and the negative field tests was enough to establish that the substance was fake crack. (O'Neal, 2007 NY Slip Op 02305.)

AD1: Decisions for March 1, 2007

Juror is not grossly unqualified to serve because her aunt lives in building where drug dealing happened

People v Devison, 2007 NY Slip Op 01771 [available here]

During defendant's trial on drug charges, a sworn juror revealed to the court that her aunt lived in the building where the drug dealing was alleged to have occurred. (Devison, 2007 NY Slip Op 01771.) Defense counsel asked that the juror be dismissed, arguing that the juror's aunt was a victim of the crime, and the facts gave rise to an implied bias. The trial court refused to dismiss the juror, and the First Department affirmed. "The juror did not have an implied bias based on this remote fact alone. She stated that she had not visited her aunt in a number of months, promised not to go to the building during the trial, and stated unequivocally that she had formed no opinion about the case based on her aunt's connection to the building." (Id. at __.) As to defendant's argument that the Aunt was a victim of the crime, the First Department rejected the argument in conclusory fashion; "the aunt was not a 'person allegedly injured by the crime charged' within the meaning of the statute." (Id. at __.)

AD3: Decisions for March 1, 2007

Rare reduction of sentence as harsh and excessive

People v Val, 2007 NY Slip Op 01631 [available here]

Defendant was convicted after trial of sexual abuse in the first degree. Although the Third Department found the jury's verdict was not against the weight of the evidence, the Court nevertheless reduced defendant's sentence from 7 to 5 years. "Defendant had no criminal record, was employed and was attempting to further his education. The jury rejected significant portions of the victim's testimony. The presentence investigation report indicates that the victim elected not to file an impact statement and the report characterized defendant as intelligent and motivated to succeed in life." (People v Val, 2007 NY Slip Op 01631.)

Defendant not entitled to DNA protocols, frequency tables as part of mandatory discovery.

People v Alvarez, 2007 NY Slip Op 01632 [available here]

Prior to trial, defendant made a discovery demand requesting (among other things) the frequency tables and testing protocols related to certain DNA testing. The Third Department held that those materials did not fall under the mandatory discovery provisions of CPL 240.20. From the decision:

Courts have held that CPL 240.20 (1) (c) requires the prosecution to disclose any notes or documents used in the preparation of reports or related to the specific tests of items in a defendant's case, but not the lab's generic DNA testing protocols or procedure manuals. The protocol utilized by the State Police lab to determine when its employees may designate a DNA profile as a match was not a document concerning the particular test performed at the request of the prosecutor, but instead applied to all DNA tests performed at the lab. While this protocol may have been discoverable by defendant on a motion properly made and supported with proof "that discovery with respect to such property is material to the preparation of his defense, and that the request is reasonable", defendant's request for this information was not supported with any affidavits establishing materiality or reasonableness. It is interesting that defendant did not object to the lack of foundation for the test results on any basis, defense counsel did not specifically question the People's expert regarding the lab's protocol on determining DNA profile matches and the calling of alleles at each locus, and the defense expert did not conduct independent testing, as he could have done, but instead ran the raw data through a gene profiling computer program which reviewed the data and called some of the prosecution's results into question. Under the circumstances, the prosecution provided all documents required to be disclosed under CPL 240.20 or which were constitutionally required.

(Alvarez, 2007 NY Slip Op 01632.)

Officer's general suspicion that suspect "was secreting something in his pants" justified strip search

People v Banks, 2007 NY Slip Op 01636 [available here]

Schenectady police officers stopped the defendant, and learned he had outstanding warrants from the town of Amsterdam. The Schenectady cops turned the defendant over to the Amsterdam police, and one of the Schenectady officers told the Amsterdam officers his "suspicion that defendant was secreting something in his pants [...]." (Banks, 2007 NY Slip Op 01636.) Once in the Amsterdam police car, "the Amsterdam police observed defendant . . . attempting to reach in his pants, causing the officer to conclude that the information from the Schenectady police was accurate and that defendant was attempting to remove something and secrete it in the police car." (Id. at __.) Once at the Amsterdam police station, defendant was strip searched. (Id. at __.) The cops testified at suppression that Amsterdam had "a policy of conducting strip searches of every arrestee remanded to the local correctional facility." (Id. at __.)

The Third Department upheld the strip search. While noting that a policy of strip-searching every arrestee is unconstitutional, the Court nevertheless concluded that "the Amsterdam police properly formed a reasonable suspicion that defendant had contraband on his person and that the strip search was therefore reasonable." (Id. at __.)

AD2: Decisions for February 27, 2007

Juror who has seen witness "numerous times" is grossly unqualified to serve; no inquiry necessary where defendant's family allege juror was sleeping

People v Lennon, 2007 NY Slip Op 01759 [available here]

After a witness testified for the prosecution, a juror informed the court that he had seen the witness "'down by the bay numerous times'" and had "conversed with him." (Lennon, 2007 NY Slip Op 01759.) When asked if his acquaintance with the witness would "influence his deliberations", the jury said "he did not 'know how to answer'." (Id. at __.) The trial court found the juror "grossly unqualified" to continue service under CPL 270.35 and removed him from the jury. The Second Department affirmed. "The trial court was justified in concluding the juror was 'grossly unqualified' to continue serving based on his relationship with the witness and his inability to state that he would not be influenced by the relationship." (Id. [citations omitted].) Hard to see how this squares with Buford, where the Court of Appeals held, "[i]n concluding that a juror is grossly unqualified, the court may not speculate as to possible partiality of the juror based on her equivocal responses. Instead, it must be convinced that the juror's knowledge will prevent her from rendering an impartial verdict." (People v Buford, 69 NY2d 290 [1987].)

The court replaced the juror with an alternate, at which point "members of the defendant's family reported that the alternate juror had been sleeping [...]." Rather than conduct an inquiry with the juror, the trial court "noted that it had a better view of the alternate than the defendant's family and that, inter alia, it believed that the alternate juror had not been sleeping." (Id.) Factual disputes resolved in favor of the person wearing the robe, I guess. Would it really have been that hard to call the alternate out and ask her if she dozed off? Not necessary, says the Second Department; "[a]s the court had the benefit of its own observations, further inquiry was not required." (Id.)

Defendant not entitled to vacatur of guilty plea on B violent felony where postrelease supervision not included as part of plea or sentence

People v Wilson, 2007 NY Slip Op 01765 [available here]

Defendant pleaded guilty to Assault in the First Degree (a B violent felony), and was promised a determinate 18 year sentence. Postrelease supervision was not a term of the plea, and no postrelease supervision was mentioned at sentencing nor included in the "court's order of commitment." (People v Wilson, 2007 NY Slip Op 01765 at __.) Since a term of postrelease supervision is mandatory upon a conviction for Assault 1st, defendant made a motion to vacate his plea based on an illegal sentence. The trial court denied the motion, and the Second Department affirmed. (Id. at __.) The Court reasoned that, since postrelease supervision was neither part of the plea nor the sentence imposed, "the sentence actually imposed by the court never included, and does not now include, any period of post-release supervision." (Id. at __.) And since "the defendant received precisely the sentence for which he bargained", the Court found no reason to vacate his plea. (Id at __.) In other words, defendant is entitled to specific performance on his bargain, even if the sentence he agreed to is illegal.

The Fourth Department probably would have reached a different result. (See, e.g., People v Davis, 2007 NY Slip Op 00929 ["Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand."] [bracketed material in original].)

AD1: Decisions for February 27, 2007

Lying to police, dropping keys = reasonable suspicion to justify detention

People v Padilla, 2007 NY Slip Op 01604 [available here]

At a community meeting, an elderly woman told a police officer about unspecified "suspicious activity" involving a "Hispanic man with a blue BMW" near a certain housing project. Padilla, 2007 NY Slip Op 01604.) About a week later, officers were patrolling near the housing project when they observed defendant pull up to the housing project in a blue BMW, enter the housing project, and exit about 10 minutes later. (Id. at __.) The officers approached the defendant "to inquire whether defendant had a lawful basis to be" in the housing project. (Id.) When asked where he was coming from, the defendant "stated that he was coming from up the block, which [the officer] knew to be a lie." (Id. at __.) While defendant was talking, he "extend[ed] his right hand and nonchalantly drop[ped] a key chain." (Id. at __.) The police pressed the issue, and defendant changed his story and said he had been "visiting a family in apartment 3B" of the housing project. (Id.)

At this point, the police detained the defendant and took him into the housing project "to verify defendant's account [...]." Long story short: the police noticed an "overpowering" smell of marijuana coming from the fourth floor, heard a generator running inside an apartment on the fourth floor, and used the defendant's key to let themselves into the apartment that had been converted to a marijuana greenhouse. (Id.)

Based on those facts, the trial court granted defense counsel's motion to suppress. The First Department reversed. The Court reasoned that the encounter was justified at its inception because the old lady's tip at the community meeting provided an objective and credible reason for approaching the defendant and asking general questions about "where he had come from [...]." (Id. at __.) "The encounter then appropriately progressed from a 'request for information' to a temporary detention" because the defendant lied about where he was coming from and dropped his keys. (Id. at __.) Once the defendant's key fit the door for the marijuana greenhouse, probable cause existed for arrest. (Id. at __.)

Yet another decision invoking the so-called "investigatory detention" automatically with absolutely no mention of the critical threshold inquiry--whether a reasonable, innocent person would have felt free to leave upon being "detained" by the police. If a reasonable, innocent person would not feel free to leave, the the "detention" is a full de facto arrest justifiable only on a showing of probable cause. The type of reasoning employed in Padilla waters down the protections of the Fourth Amendment, essentially setting up a "reasonable suspicion" standard for most detentions, with "probable cause" relegated to some exception to be claimed if the so-called "investigatory detention" crests some unspecified threshold of severity.

Potential juror's statement that she would do her best to overcome bias is a sufficiently unambiguous statement of impartiality

People v Ortiz, 2007 NY Slip Op 01605 [available here]

In a decision that gets to the right result while still managing to make terrible law, the First Department reversed defendant's conviction because a potential juror said during jury selection that would not be able to separately determine guilt on each of the several counts against defendant. Perfectly legitimate grounds for reversal; but it is what the First Department holds elsewhere in the opinion that is truly baffling.

Another potential juror was challenged for cause during jury selection. This juror, when asked "if she could assess defendant's guilt as to the various charges arising out of three separate incidents, ... stated, 'I would have a hard time not lumping everything together.'" (Ortiz, 2007 NY Slip Op 01605.) The judge asked her if she could use her "best efforts" to evaluate the proof, and the juror said "yes." (Id.)

Later, the same juror said she "might" give more credibility to police officers. (Id.) When defense counsel asked her if she could follow an instruction to treat police testimony the same as any other witness, "she responded, 'I will do my best.'" (Id. at __.)

While acknowledging that the trial court should strike a potential juror who fails to give unequivocal assurances of impartiality, the First Department held the trial court's refusal to grant defense counsel's challenge for cause was appropriate. Here's how the First Department framed and resolved the issue:

Where the prospective juror's assurance of impartiality is expressed in less than a definitive "yes" or "no" reply, service should not be permitted unless the juror's responses "taken in context and as a whole, were unequivocal." Here, venireperson Puder responded with an unequivocal "yes" when asked if she could use her best efforts to evaluate the three incidents individually and stated that she would do her best when asked if she would impartially evaluate testimony given by a police officer.

(Id. at __.)

This is just a ridiculous oversimplification. The standard is whether the juror gives an unequivocal assurance of impartiality. Giving a simple "yes" answer to a question phrased in ambiguous terms is not an unequivocal assurance. That is just what happened here; what exactly does it mean when a juror says she will do her best to overcome her stated bias? How good is her best? The judge's questioning here did absolutely nothing to clear up the ambiguity, but rather injected more uncertainty into the mix. The fact that her answer was a simple "yes" doesn't change the fact that the question itself was ambiguous. The First Department's reformulation of the Arnold standard to some simple "yes/no" requirement guts the standard.

Defense counsel's concession at suppression = ineffective assistance of counsel

People v Johnson, 2007 NY Slip Op 01606 [available here]

After a suppression hearing, defense counsel told the court (among other things), "'I don't believe in doing vain things and trying to ask a Judge to do something that I would not do. And I don't believe I have sustained, frankly, my burden to show the unlawful and unconstitutionality of the search. So I can't really argue.'" (People v Johnson, 2007 NY Slip Op 01606.) Quality advocacy, that. The First Department reversed on ineffective assistance of counsel grounds, noting the suppression record presented "colorable" issues and "we can discern no legitimate strategy or tactic which would have led counsel to simply concede all of the points raised." (Id.)

AD3: Decisions for February 22, 2007

Single gunshot into darkened room = depraved indifference to human life

People v Golden, 2007 NY Slip Op 01427 [available here]

The defendant in Golden "pulled out a revolver and began waving it around" before chasing a man into an apartment. "At the door of [the] apartment, defendant fired a single shot into the apartment. The bullet struck [the victim] in the abdomen and became lodged in her spine." (Golden, 2007 NY Slip Op 01427.) Defendant was convicted of Assault in the First Degree under a "depraved indifference" theory. On appeal, defendant argued that the evidence was not legally sufficient to establish the necessary "depraved indifference" to human life; the Third Department disagreed and affirmed. "Surely a jury was entitled to find that defendant's firing of a weapon into a darkened apartment where he should have perceived that one or more inhabitants were present was reckless conduct, and the jury likewise could infer from the evidence that defendant acted with 'an utter disregard for the value of human life [acting] not because [he intended] harm, but because [he] simply [didn't] care whether grievous harm [resulted] or not.'" (Id., citing People v Suarez, 6 NY3d 202, 214.) This decision is similar to the First Department's recent decision in People v Fields [post here].

Defendant must make motion to withdraw plea to preserve challenge to validity of appeal waiver

People v Sullivan, 2007 NY Slip Op 01428 [available here]

On appeal, the defendant challenged the validity of his waiver of right to appeal executed as part of a plea deal. The Third Department found the issue unpreserved because defendant "never raised this precise issue in a motion to withdraw his plea or to vacate the judgment of conviction." (Sullivan, 2007 NY Slip Op 01428.) The First Department recently overruled its own precedent and reached just the opposite conclusion on this issue. (See People v Hoover, 2007 NY Slip Op 01395 [previous post here].)

AD1: Decisions for February 22, 2007

Robbery victim's responses to police questioning after suspect has already fled qualifies as "excited utterance"; not testimonial

People v Smith, 2007 NY Slip Op 01467 [available here]

Police responded to a reported robbery and questioned the victim, who told them certain specifics about the robbery. The defendant challenged the victim's statement to the police as hearsay subject to no exception, and also argued on appeal that the statement was inadmissible testimonial hearsay under Crawford v Washington. The First Department did not bite on either argument. On the hearsay issue, the Court held the trial court "properly admitted as excited utterances the nontestifying victim's statements to the responding police officer . . . upon his arrival at the scene, describing the theft and informing the officer that the perpetrator had displayed a knife, as well as his statement, moments later, as to the perpetrator's flight." (Smith, 2007 NY Slip Op 01467.) Remember, this is the same Court that decided last week that the statement of a man who had just been shot in the gut was not an excited utterance. (previous post available here.)

As to the Crawford issue, the Court held that the statement was not testimonial in nature, but rather made to assist the police "'to meet an ongoing emergency' that had not abated. The ongoing emergency consisted of the immediate flight on an armed and dangerous person from the scene and his possible continuing presence nearby." (Id. at __, citing Davis v Washington, 126 S Ct 2266 [2006].)

Defense counsel's statement to court that client would perjure himself if he testified did not render assistance ineffective

People v Kolon, 2007 NY Slip Op 01472 [available here]

On appeal, defendant argued "that he was prejudiced when, in counsel's efforts to be relieved, counsel revealed to the ultimate fact-finder that his client would commit perjury if he testified, and that his client was eager to plead guilty to a lesser charge." (Kolon, 2007 NY Slip Op 01472.) Not ineffective assistance, said the First Department--defendant did not actually testify, and "the judge, in this nonjury trial, is presumed to have disregarded prejudicial matter." (Id. at __.)

Cop's testimony that he had met defendant several times, knew him by name, and knew where he lived properly admitted

People v Vega, 2007 NY Slip Op 01488 [available here]

In a drug case, the trial court allowed evidence that "the observing officer had met defendant on several undescribed prior occasions, knew him by name and had been to his apartment." (Vega, 2007 NY Slip Op 01488.) Despite the obvious prejudice of letting the jury know that the cops are on a first-name basis with the defendant, the Court held the trial court acted properly in admitting the evidence. "In addition to being highly probative of the officer's ability to identify defendant, an issue which defendant extensively pursued on cross-examination, this evidence also explained some of the unusual facts in this case." (Id. at __.)

AD2: Decisions for February 20, 2007

Single shot thru curtained window = depraved indifference murder

People v Fields, 2007 NY Slip Op 01584 [available here]

Breaking somewhat from the recent trend from the Court of Appeals, the Second Department upheld defendant's depraved indifference murder conviction based on a single shot fired through a "curtained window." (Fields, 2007 NY Slip Op 01584.) The Court held "the firing of a single shot through a doorway window, knowing that there were three people moving about on the other side of that doorway, was clearly reckless conducted which evinced a depraved indifference to human life. Indeed, the defendant had to have been aware that his actions could result in death to another person even if he could not be sure who the victim might be." (Id.)

Police following a running suspect is not pursuit; suspect running near crime scene with his hand on his waist established reasonable suspicion

People v Shankle, 2007 NY Slip Op 01598 [available here]

Police received a broadcast report of a shooting, and started toward the scene. About 2 1/2 blocks away, the officers saw "the defendant running from the direction of the reported shooting with his hand on his waist." (Shankle, 2007 NY Slip Op 01598.) One of the officers "stepped out and followed the defendant on foot, with his shield out but his gun not drawn. When he got to within 10 to 15 feet from the defendant, [the officer] stated: '[P]olice, don't move.'" (Id. at __.) Defendant then menaced the officer with a BB gun. (Id.) The Second Department held that the officer's "conduct before the defendant pointed the BB gun at him did not constitute pursuit or a seizure requiring reasonable suspicion." (Id.) Just so we're clear, a police officer pursuing a suspect is not "pursuit". The Court continued, "In any event, [the officer's] receipt of a radio report that a man had been shot about two and a half blocks away, together with his observation of the defendant running from that direction with his hand on his waist, were sufficient to support . . . a reasonable suspicion." (Id. at __.) So if you go jogging near probable crime scenes, keep your hands away from your waist.

AD1: no motion to withdraw plea necessary to challenge validity of appeal waiver

People v Hoover, 2007 NY Slip Op 01395 [available here]

Overruling its prior precedent, the First Department held in People v Hoover that a defendant no longer needs to make a motion to withdraw his or her plea to preserve the validity of an appeal waiver as an issue on appeal. "A defendant who has pleaded guilty and simultaneously waived the right to appeal cannot be asked, as a condition to an appellate challenge to the waiver of appeal, to move to withdraw the plea of guilty, with which, except for an otherwise preserved appellate issue, he/she may be satisfied." (Hoover, 2007 NY Slip Op 01395.) Reaching the merits, the Court found the defendant's appeal waiver invalid; the waiver, "consisting of the answer 'yes' to the question, 'You are also waiving your right to appeal this plea and sentence. Do you understand all that?" is invalid and unenforceable." (Id. at __.)

A quiet packet of decisions for the First Department; Hoover was the only significant decision handed down February 20, 2007.

CA: erroneous admission of evidence that defendant raped the babysitter before raping the victim is harmless error

People v Jackson, 2007 NY Slip Op 01424 [available here]

In an unsigned memorandum opinion, the Court of Appeals held that any error the trial court made by allowing evidence that the defendant raped the complainant's babysitter before he raped the complainant was harmless error. (Jackson, 2007 NY Slip Op 01424.) Judge Smith concurred and wrote separately; the facts, from his opinion:

Defendant was charged with the forcible and statutory rape of a 14-year-old girl. He had been staying as a guest in the apartment of the girl's family. A young woman who also lived in the apartment, the baby-sitter for the younger child, was allowed to testify that, shortly before the event on which the prosecution was based, defendant had raped her, and had remarked while doing so "that [the 14-year-old] was lucky I was there, because if I wasn't there, it would be her."

(Jackson at __ [SMITH, J., concurring].)

The majority refused to consider whether the trial court erred in admitting evidence of the prior rape as Molineux evidence, rather holding rather curtly that "[a]ssuming that it was error to admit both the statement and the uncharged criminal conduct, the error was harmless." (Id. at __.) You would think the evidence against defendant must have been overwhelming even without the arguably erroneous Molineux evidence for such damning evidence to be harmless; you would be wrong. The victim testified and recounted the rape, and there was evidence of a prompt outcry by the victim the morning after the rape. (Id. at __.) That was basically it--there was no physical evidence of the rape, and the victim was sketchy as to the dates the rape took place. (Id. at __.) Given the state of the proof, it is hard to see how the challenged evidence--that defendant raped the babysitter, too--could not have tipped the jury in favor of conviction. Yet the majority held just that; the verdict would have been the same even without evidence of the prior rape, and therefore any error was harmless. (Id. at __.)

(Here we will take a brief pause while I reconcile myself to the fact that every error in every case I have scheduled for argument in the next six months or so would be held harmless under the Jackson majority's unnecessarily strict interpretation of the harmless error doctrine. *Sigh*.)

Judge Smith concurred because he would not have found the error harmless, but rather would have held the evidence of the prior rape was (barely) proper under Molineux. Judge Smith argued (and I agree) that the defendant's statement made during the rape of the babysitter was "an expression of desire . . . to commit the very crime for which he was on trial" and thus admissible. (Id. at __ [SMITH, J., concurring].) While noting that the uncharged act--the rape of the babysitter--would ordinarily be barred under Molineux, it was properly admitted in this case to give context to the defendant's statement. (Id. at __.)

Judge Pigott dissented, and got it exactly right in my view--the trial court "could have fashioned a remedy that would have permitted the witness to testify to the alleged statement separately and apart from the alleged sexual assault." (Id. at __ [PIGOTT, J., dissenting.) Thus, there was no need to put the extremely inflammatory evidence of the prior babysitter rape before the jury, it was error to do so, and "[t]his critical error deprived defendant of a fair trial, and could hardly be considered 'harmless beyond a reasonable doubt.'" (Id. at __.)

AD1: prior "conviction" for CPW3 purposes measured from time of plea or verdict

People v Montilla, 2007 NY Slip Op 01367 [available here]

To be guilty of Criminal Possession of a Weapon in the Third Degree ("CPW3") under Penal Law section 265.02[1], the defendant must have "been previously convicted of any crime." (CPL 265.02[1].) In Montilla, the defendant pleaded guilty to a crime, and while awaiting sentence on the guilty plea was arrested for possessing a gun. The People charged defendant with CPW3, and argued that the defendant's guilty plea counted as a prior conviction even though sentence had not yet been imposed. (Montilla, 2007 NY Slip Op 01367.) The First Department agreed, noting the CPL "expressly provides that a 'conviction' occurs at the time of a plea or verdict of guilty, unlike a 'judgment,' which consists of a conviction and the sentence imposed thereon." (Id.)

There were no other decisions of note from the First Department's February 15 packet.

CA: 710.30 does not require notice of photo array

People v Grajales, 2007 NY Slip Op 01385 [available here]

Section 710.30 of the Criminal Procedure Law requires the People to give notice of any pretrial identification procedure "'intended to be offered' at trial." (Grajales, 2007 NY Slip Op 01385.) If the People do not intend to offer evidence of a certain identification procedure at trial, then no notice is required, even if a subsequent identification procedure is going to be offered against defendant. So holds the Court of Appeals in Grajales. In Grajales, the victim of a robbery was shown a photo array, and identified the defendant as the robber. About a week later, the victim saw defendant on the street and called the police. "When the police arrived, the victim pointed out defendant as one of the men who had robbed him." (Id.) The People gave notice under 710.30 of the "on-the-street point out", but not the identification from the photo array. (Id. at __.) Completely kosher, says the majority: "CPL 710.30[1][b] . . . only mandates preclusion in the absence of timely notice 'specifying' the pretrial identification evidence 'intended to be offered' at trial. Because evidence of a witness's pretrial photographic identification of an accused is not admissible in the prosecution's case in chief, the People could not intend to offer it trial, and therefore the CPL 710.30[1][b] notice was adequate." (Id. at __.)

Judge Ciparick dissented, and would have interpreted section 710.30 more broadly to require the People to give notice of any identification procedure that could potentially have tainted the witness's in-court identification. The dissent argues the majority's "interpretation also leaves open the possibility that notice of other suggestive identification procedures will not be provided to the defendant so long as the People do not intend to introduce them at trial. Such a stunning result is clearly contrary to the spirit and purpose of CPL 710.30." (Id. at __ [CIPARICK, J., dissenting].)

The majority agrees with the dissent that "the customary and better practice is to give defendant notice of all prior police-arranged identifications made by a witness from whom they intend to elicit in-court identification testimony." (Id. at __.) But absent a tweak of the statute by the Legislature, the majority is "unwilling to read the statute more expansively than the Legislature has chosen to write it, especially when the remedy is preclusion." (Id.)

CA: the People have the burden of establishing both the amount of loss and any offsets at restitution hearing

People v Tzitzikalakis, 2007 NY Slip Op 01335 [available here]

Defendant in Tzitzikalakis ran a contracting company that ripped off the city of New York by performing construction work and submitting inflated invoices. Defendant was convicted of grand larceny, and ordered to pay restitution to the city. At the restitution hearing, the hearing court required the People to establish only the face amount of some of the phony invoices paid, leaving it to the defendant to put in proof on any offsets (i.e. the value of the work defendant actually completed under the contract). From the majority opinion:

At a restitution hearing, the People bear the burden of proving the victim's out-of-pocket loss--the amount necessary to make the victim whole--by a preponderance of the evidence. To meet that burden, the People must show both components of the restitution equation, the amount taken minus the benefit conferred. To hold otherwise would contravene both the words and the intent of the statute, "to prevent the victim from enjoying an unjust enrichment, and the defendant from suffering under an unduly harsh and unreasonable restitution order."

(Tzitzikalakis, 2007 NY Slip Op 01335.)

The Court called on the legislature to modify the restitution statute to give "hearing courts the discretion to place the burden of proving assets on the party best suited to do so [...]." (Id.)

Justice Smith dissented. While agreeing that the People had "the initial burden of producing evidence and the burden of persuasion . . . on the issue to be decided at the hearing, the amount of the out-of-pocket loss", Justice Smith argued that once the People established a prima facie loss it was incumbent on the defendant to bear the burden of producing evidence on any offsets. (Id, SMITH, J., dissenting.)

This case also saw the battle of the evidence treatises--the majority cite to Richardson in support of its holding, with the dissent calling in Fisch.