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

1. People v Prior 2008 NY Slip Op 01189 [2/8/08]

Contrary to defendant's contention, County Court did not err in admitting evidence that defendant was on parole at the time of the crime, had stopped reporting to his parole officer and had violated parole by leaving New York State immediately thereafter. That evidence was relevant in establishing "defendant's consciousness of guilt, and the probative value of the evidence outweighed its prejudicial effect" (People v Topolski, 28 AD3d 1159, 1160, lv dismissed 6 NY3d 898, lv denied 7 NY3d 764, 795; see People v Wynder, 41 AD3d 209, lv denied 9 NY3d 884; People v Jones, 276 AD2d 292, lv denied 95 NY2d 965).

2. People v Foss 2008 NY Slip Op 01190 [2/8/08]

Where the defendant was convicted of two counts of sexual abuse in the first degree (Penal Law § 130.65 [3]) the Court held that

the imposition of consecutive sentences with respect to each count renders the sentence unduly harsh and severe, and we therefore modify the judgment as a matter of discretion in the interest of justice by directing that the sentences shall run concurrently with respect to each other (see CPL 470.15 [6] [b]; see generally People v Bailey, 17 AD3d 1022, 1023, lv denied 5 NY3d 803).

3. People v Quick 2008 NY Slip Op 01194 [2/8/08]

The People appeal from an order granting defendant's motion to dismiss the indictment pursuant to CPL 210.20 (1) (a) and 210.35 (4). We agree with the People that, because they provided defendant with the requisite notice that the matter was to be presented to a grand jury and defendant failed to notify them of his intent to testify (see CPL 190.50 [5] [a]), Supreme Court erred in granting the motion. Defendant, represented by an assigned attorney from the Public Defender's office, was arraigned on the underlying felony complaint on November 6, 2004. At that arraignment, defendant was furnished with a written notice of presentment to a Monroe County grand jury on November 9, 2004. On November 8, 2004, the Public Defender's office discovered a conflict of interest in its representation of defendant, and the following day another attorney was assigned to represent defendant. That attorney did not notify the People of defendant's intent to testify before the grand jury.
We conclude that defendant had sufficient time to consult with defense counsel prior to the filing of the indictment and, because neither defendant nor defense counsel notified the People that defendant intended to testify before the grand jury, defendant was not deprived of the right to testify (see People v Johnson, ___ AD3d ___ [Dec. 21, 2007]; see also People v Lyons, 40 AD3d 1121, 1122-1123, lv
denied 9 NY3d 878; cf. People v Evans, 79 NY2d 407, 415).

4. People v Arguinzoni 2008 NY Slip Op 01204 [2/8/08]

The court properly denied defendant's challenge for cause to a prospective juror based on the prospective juror's inability to read and write. The Judiciary Law requires in relevant part that a juror must "[b]e able to understand and communicate in the English language" (Judiciary Law § 510 [4]; see CPL 270.20 [1] [a]), but there is no requirement for reading and writing skills…Defendant further contends that the court erred in allowing other jurors to author notes for the prospective juror in question, who was designated as the jury foreperson pursuant to CPL 270.15 (3). We reject that contention. The record establishes that the notes were initialed by the foreperson, and it cannot be said that defendant was prejudiced by that procedure inasmuch as "the law recognizes no special function for a foreperson other than acting as the jury's spokesperson" (People v Burgess, 280 AD2d 264, 265, lv denied 96 NY2d 798).

5. People v Dean 2008 NY Slip Op 01209 [2/8/08]

[D]efendant [contention]... that he was denied effective assistance of counsel…does not survive his guilty plea or his waiver of the right to appeal because there was no showing " that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance' " (People v Leonard, 37 AD3d 1148, lv denied 8 NY3d 947).

6. People v Mc Cloud 2008 NY Slip Op 01213 [2/8/08]
The Court affirmed the dismissal of two murder charges on constitutional speedy trial grounds where

Defendant was arrested on February 6, 2002 and indicted on July 11, 2002 for a murder that occurred on December 29, 2001. On September 25, 2002, the only eyewitness who was able to identify defendant was murdered by a person known to be one of defendant's associates. On March 10, 2003, after a Geraci hearing, the court determined that the People failed to establish by clear and convincing evidence that defendant was "involved in procuring the witness's unavailability for live testimony" (People v Geraci, 85 NY2d 359, 368), and it therefore refused to permit the People to use the grand jury testimony of the witness in their case-in-chief against defendant. Although the court released defendant on his own recognizance at that time because the People advised the court that they were unable to proceed to trial, defendant was a furloughed prisoner at the time of his arrest in February 2002, and he therefore remained imprisoned on that unrelated charge. On August 12, 2003, the court denied defendant's motion to dismiss the indictment on speedy trial grounds. Defendant thereafter renewed his motion, and the court granted that motion on January 20, 2004, after the People again advised the court that they were unable to proceed to trial.

The Court explained that

It is well established that, in determining whether a defendant has been denied his or her constitutional right to a speedy trial, "the trial court must engage in a sensitive weighing process of the diversified factors present in the particular case" (Taranovich, 37 NY2d at 445). Although the delay in prosecution here was the result of the murder of the eyewitness and defendant was not incarcerated solely on the basis of the murder charges (see generally id.), the court properly determined that the People were no closer to obtaining additional evidence in January 2004 than they had been in March 2003. The People asserted that they "might" be able to obtain information from defendant's associates concerning the motive of the murder of the eyewitness in order to establish defendant's involvement with that murder, thereby allowing them to use the grand jury testimony of the eyewitness in their case against defendant. Nevertheless, the court properly noted that the People thus far had been unable to obtain the cooperation of defendant's associates and that they were unable to demonstrate any further efforts to obtain that cooperation.

7. People v Riley 2008 NY Slip Op 01214 [2/8/08]

The court properly allowed the People to present evidence of uncharged sexual offenses against the victim in order to establish the element of forcible compulsion with respect to the count of rape in the first degree (see People v Gainey, 4 AD3d 851, lv denied 2 NY3d 799). The court also properly allowed defendant's wife to testify with respect to her observations of defendant's body. Those observations did not concern "knowledge derived from the observance of disclosive acts done in [her] presence or view" (People v Daghita, 299 NY 194, 199) but, rather, they were merely observations concerning defendant's physical characteristics (cf. id. at 198-199; People v Marinaccio, 15 AD2d 932, 933). Finally, the court did not err in allowing the People to cross-examine defendant on the issue whether he rented or purchased adult videos. Defendant opened the door to such questioning when he testified on direct examination that he once possessed an adult video given to him by a coworker (see generally People v Van Kuren, 1 AD3d 960, lv denied 1 NY3d 635), and the People merely sought to elicit testimony that defendant had a membership card for an X-rated video store.

8. People v O'Keefe 2008 NY Slip Op 01228 [2/8/08]

The record establishes that County Court did not advise defendant at the time of the plea proceeding that his sentence would include a mandatory period of postrelease supervision. As a result, defendant was unable "to knowingly, voluntarily and intelligently choose among alternative courses of action" (People v Catu, 4 NY3d 242, 245; see People v Minter, 42 AD3d 914), and his plea must be vacated.

9. People v Camelo 2008 NY Slip Op 01248 [2/8/08]

The burglary and petit larceny charges stem from defendant's entry into the apartment where defendant had been living with his girlfriend and their two children, and his removal therefrom …. [T]he verdict is against the weight of the evidence with respect to the count of petit larceny…. Although the weight of the evidence establishes that defendant removed some of his girlfriend's belongings from the apartment, it also establishes that he voluntarily returned those belongings to his girlfriend within a short time thereafter. Consequently, the evidence weighs heavily in favor of a finding that defendant did not intend to steal the property from his girlfriend within the meaning of Penal Law § 155.25,i.e., he did not intend "to withhold [the property] from [her] permanently" (§ 155.00 [3]; see § 155.05; see generally People v O'Reilly, 125 AD2d 979). We find that the jury "failed to give the evidence the weight it should be accorded" on the issue of defendant's intent to commit petit larceny (Bleakley, 69 NY2d at 495), and we therefore modify the judgment by reversing that part convicting defendant of petit larceny and dismissing count two of the indictment. In view of our reversal of that part of the judgment convicting defendant of petit larceny as against the weight of the evidence, and because there is no evidence that defendant intended to commit any other crime upon his entry into the apartment (cf. People v Lewis, 5 NY3d 546, 551-552), we further find that the burglary conviction is against the weight of the evidence (see generally People v Gaines, 74 NY2d 358, 362-363). We therefore further modify the judgment by reversing that part convicting defendant of burglary in the second degree and dismissing count one of the indictment.

Evidence of Common Scheme or Just Evidence of Propensity?

The Court divided as to whether, in a sex crime case, the People should be allowed to present testimony that the defendant committed similar acts with the victim in another county during the same time frame as that alleged in the case at bar. In People v Leeson 2008 NY Slip Op 01243 [2/8/08], County Court admitted extensive testimony from the victim, her brother, and her mother concerning two incidents, occurring in "late August, early September," in which defendant took the victim and her brother to a house and office in Penn Yan, Yates County, to help clean it, and there "some of the same things happen[ed in Penn Yan] as happened on the side of the road near [the victim's] mom's house[]" in Ontario County
The majority held that admission was proper in a case in which

the People's theory was that defendant planned to place the victim in secluded locations in which she was alone with him for the purpose of engaging in sexual activity with her. We thus agree with the court that evidence that he did so on two occasions in addition to those charged in the indictment herein was admissible to establish the common scheme or plan. In any event, we conclude that the evidence also was admissible to complete the narrative of the events charged in the indictment (see People v Till, 87 NY2d 835, 837; People v Gines, 36 NY2d 932, 932-933; People v Jones, 27 AD3d 1161, lv denied 7 NY3d 849), and to provide necessary background information (see People v Conrow, 13 AD3d 1116, lv denied 4 NY3d 829; People v Tarver, 2 AD3d 968). Finally, the probative value of that evidence outweighed any prejudicial impact (see generally Allweiss, 48 NY2d at 47).

By contrast, the two Justices who dissented found that this evidence was solely relevant as to propensity and, thus inadmissible:

We cannot endorse the majority's reliance on the common scheme or plan exception to the general rule excluding evidence of uncharged crimes. A defendant charged with sex crimes would rarely, if indeed ever, engage in such conduct in a public venue but, rather, the defendant would likely choose a secluded location for the purpose of engaging in illicit sexual activity. We therefore cannot agree that the evidence of the two uncharged incidents was admissible to establish that defendant had a common scheme or plan. We also cannot agree with the majority that the evidence of those uncharged crimes was "admissible to complete the narrative of events charged in the indictment . . . and to provide necessary background information," presumably with respect to defendant's relationship with the victim. Addressing first the statement of the majority with respect to "necessary background information," we conclude that, based on the respective ages of the victim and defendant, no specific intent on the part of defendant was necessary to commit the crimes for which defendant was indicted in Ontario County (see Penal Law former § 130.45 [1]; § 130.60 [2]; see generally Lewis, 69 NY2d at 327). We note in any event that the incidents in Yates County occurred either at the same time or after the charged crimes and thus, could not temporally serve to provide background information for defendant's indicted crimes.

Can a Seizure Lawfully be Based on the Officer’s Mistakes as to the Law?

In People v Estrella 2008 NY Slip Op 01239 [2/8/08] the Court divided as to whether the stop of a vehicle with Georgia license plates was lawful where the window tint rendered them less transparent than required pursuant to a Georgia statue which had already been declared unconstitutional. In part the disagreement is over whether the police need to know whether the driver was a Georgia resident and, thus, not subject to New York’s tint rule. The majority held that

We cannot agree with the dissent that the officer who stopped defendant's vehicle knew at the time of the stop that "defendant's vehicle was registered in Georgia and that defendant was a Georgia resident" and thus that, pursuant to Vehicle and Traffic Law § 250 (1), defendant was exempt from the requirements of section 375 (12-a) (b) (4). Section 250 (1) provides in relevant part that the owner of a vehicle that is in compliance with the registration and equipment requirements of the state in which the owner resides is exempt from provisions of the Vehicle and Traffic Law pertaining to registration and equipment. The exemption is applicable, however, only if the state in which the owner resides grants "like exemptions" to residents of New York State (id.). The record of the suppression hearing establishes that, at the time of the stop, the officer did not know whether defendant was the owner of the vehicle, whether the vehicle was properly registered in Georgia, or whether the light transmittance complied with Georgia law (see id.). Rather, the officer knew only that the vehicle was operated on a public highway with a rear window that appeared to be tinted with a material having a light transmittance of less than 70%. We therefore conclude that the officer who stopped the vehicle had the requisite probable cause to believe that a violation of Vehicle and Traffic Law § 375 (12-a) (b) (4) had occurred (see People v Robinson, 97 NY2d 341, 349-350; People v McKane, 267 AD2d 253, lv denied 94 NY2d 921, 922). The stop itself was necessary to obtain the information whether section 250 (1) was applicable and thus whether defendant was exempt from the requirements of section 375 (12-a) (b) (4). Also contrary to the view of the dissent, it is unreasonable to require that police officers be familiar with the equipment requirement laws of every state, and presumably other countries, in order to effectuate a proper stop for a violation of New York State law.

By contrast, the two dissenting Justice reasoned that

New York motor vehicle equipment provisions, however, do not apply to motor vehicles owned by nonresidents of New York, provided that the owner is in compliance with the equipment provisions of the law of the state of his or her residence (see Vehicle and Traffic Law § 250 [1]). Here, the police officer who stopped defendant's vehicle knew only that defendant's vehicle was registered in Georgia and that defendant was a Georgia resident. Thus, Georgia law applied with respect to the tinted rear window on defendant's vehicle, and there was no window tint law in effect when defendant's vehicle was stopped. The window tint statute in Georgia had been declared unconstitutional by the Supreme Court of Georgia (see Ciak v State, 278 GA 27, 28-29, 597 SE2d 392, 394) several months before the defendant's vehicle was stopped, and a new window tint statute was not enacted in Georgia until nearly a year after the prior statute was declared unconstitutional (see Ga L 2005, Act 67). Thus, contrary to the view of the majority, we conclude that the police did not have probable cause to believe that defendant had committed a traffic infraction. While it is true that the officers were unaware that Georgia's window tint statute had been declared unconstitutional, that mistake of law, as opposed to a mistake of fact, cannot justify the stop of a vehicle and the ensuing search and subsequent seizure of evidence therefrom (see People v Smith, 1 AD3d 965; Matter of Byer v Jackson, 241 AD2d 943, 944-945). Further, we discern no valid public policy reason for not requiring police officers to familiarize themselves with the motor vehicle equipment laws of other states if they stop such vehicles solely on the basis of a purported equipment violation. Motor vehicle stops constitute "at least a limited seizure subject to constitutional limitations" (People v John BB., 56 NY2d 482, 487, cert denied 459 US 1010) and, in our view, where a stop is predicated on a traffic infraction, police officers must be charged with the objective standard of knowing whether such an infraction occurred (see generally Robinson, 97 NY2d at 349-350).

Perhaps it should be pointed out that the Court of Appeals has interpreted New York law as providing defendant’s with only a limited mistake of law defense and held in People v Marrero (69 NY2d 382) that the defense of mistake of law was not available to federal corrections officer, who was arrested in social club for possession of loaded .38 caliber automatic pistol and who claimed he mistakenly believed he was entitled pursuant to statute to carry handgun without permit as peace officer.

Insufficient Specificity of Insufficiency of Proof?

Ever since the Court in People v Gray (86 NY2d 10) made clear that a general motion for a trial order of dismissal (T.O.D.) which fails to specify the alleged insufficiency of proof does not preserve the claim that the proof was insufficient counsel and courts have struggled with the questions as what wording is needed in a T.O.D. motion. In depraved murder cases in which the defendant claims that the evidence shows intentional conduct and is, thus, insufficient as to reckless or depraved indifference, the question is what language is required in a T.O.D. motion to raise and preserve the claim.

In People v Hawkins 2008 NY Slip Op 01238 [2/8/08] the Court divided over whether a T.O.D motion was sufficiently specific to preserve the legal insufficiency where the proof was that the defendant acted intentionally, and not recklessly, in killing the decedent.

The majority held that

Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction of depraved indifference murder on the ground that the evidence established an intentional murder and no other crime. In support of his motion for a trial order of dismissal of that count at the close of the People's case, defendant contended "that the People . . . failed to prove a prima facie case of [d]epraved [i]ndifference [m]urder" and that, "[n]ot only [did] they fail to prove a prima facie case that [defendant] was the perpetrator of the homicide[,] . . . they failed to prove that [defendant] acted with [d]epraved [i]ndifference." It is well established that, "even where a motion to dismiss for insufficient evidence [is] made, the preservation requirement compels that the argument be specifically directed' at the alleged error" (People v Gray, 86 NY2d 10, 19, citing People v Cona, 49 NY2d 26, 33 n 2; see also People v Montes, 225 AD2d 1052, lv denied 88 NY2d 882). It is unclear whether defendant's motion for a trial order of dismissal was directed at the alleged legal insufficiency of the evidence of recklessness or at the depraved indifference factual setting in which the murder took place. In either event, defendant failed to preserve for our review his present contention that the evidence is legally insufficient to support the conviction of depraved indifference murder.

By contrast, the two dissenting Justices would have held the motion sufficient to preserve the issue because

in addition to raising the general ground that the People failed to prove "a prima facie case of depraved indifference murder," defendant moved for a trial order of dismissal on the grounds that the People failed to prove that he was the perpetrator of the murder and failed to prove that the perpetrator "acted with [d]epraved [i]ndifference." It of course is assumed that Supreme Court was aware of the elements of depraved indifference murder and thus would have recognized that the motion was addressed to the legal insufficiency of the evidence with respect to the state of mind and nature of the conduct of the perpetrator. Thus, in our view, defendant satisfied the requirement set forth by the Court of Appeals in People v Gray (86 NY2d 10, 19), i.e., that his argument be "specifically directed' at the alleged error," thereby bringing to the attention of the court his contention that the People failed to prove essential elements of the crime of depraved indifference murder (see id.; cf. Finger, 95 NY2d at 895; People v Acevedo, 44 AD3d 168, 172, lv denied 9 NY3d 1004).

Retained Counsel Cannot Withdraw Simply Because He Hasn’t Been Paid

People v Woodring 2008 NY Slip Op 01234 [2/8/08]

Contrary to defendant's contention, the court did not improvidently exercise its discretion in denying trial counsel's motion to withdraw as defendant's attorney. In support of the motion to withdraw, defendant's attorney stated that defendant had not been returning his telephone calls and had refused to accept several plea offers, and he stated that defendant's family had "exhausted" their financial resources and could no longer afford to pay him. Defendant stated in response that he wanted his attorney to continue to represent him and that he "somehow" would find the money to pay him. The failure to return telephone calls does not warrant withdrawal from representation because that failure does not by itself "render[] it unreasonably difficult for the lawyer to carry out employment effectively" (Code of Professional Responsibility DR 2-110 [c] [1] [iv] [22 NYCRR 1200.15 (c) (1) (iv)]), and it is beyond dispute that an attorney is not entitled to withdraw as counsel based on the decision of a defendant to exercise his or her right to trial. Finally, the alleged inability to pay for trial counsel's services does not entitle trial counsel to withdraw as defendant's attorney, particularly in view of the statement of defendant that he would somehow find more money in order to pay his attorney. On the record before us, we conclude that the court properly "balance[d] the need for the expeditious and orderly administration of justice against the legitimate concerns of counsel" (People v Xadi Fen, 192 Misc 2d 788, 790; see generally DR 2-110 [c] [22 NYCRR 1200.15 (c)]).

The Right To Present Evidence Of Threats By Complainant Is Limited

In People v Valentine 2008 NY Slip Op 01231 [2/8/08] the Court affirmed holdings restricting the ability of a defendant to have a jury consider evidence of the complainant’s hostility towards the defendant

We reject the contention of defendant that the court violated his constitutional right of confrontation by refusing to admit in evidence a tape recording of threats made against him by his ex-wife. "[T]he extent to which an examination may be pursued for the purpose of proving the hostility of a witness is within the discretion of the court" (People v Sutherland, 280 AD2d 622, 623, lv denied 96 NY2d 835; see also People v Jones, 37 AD3d 1111, lv denied 8 NY3d 986). "If bias or interest has been fully explored through other means . . ., or the precluded area involved cumulative matter already presented . . ., there generally has been no infringement of the right of confrontation" (People v Chin, 67 NY2d 22, 29; see People v Corby, 6 NY3d 231, 235-236) and, here, the court afforded defendant a sufficient opportunity to establish the hostility of the witness. Contrary to the further contention of defendant, the court properly permitted his ex-wife to testify concerning their marital discord to explain or clarify issues brought out on cross-examination (see generally People v Mateo, 2 NY3d 383,425, cert denied 542 US 946).

The Initial Aggressor and the Justified Use of Deadly Physical Force

There may be circumstances in which a defendant is the initial aggressor and can still justifiably respond with deadly physical force.

In People v Mc Williams 2008 NY Slip Op 01229 [2/8/08] the Court that

…[W]here there is a reasonable view of the evidence that the defendant initiates nondeadly offensive force and is met with deadly physical force, the defendant may be justified in the use of defensive deadly physical force and that, in such cases, the term initial aggressor is properly defined as the first person in the encounter to use deadly physical force (see e.g. People v Daniel, 35 AD3d 877, 878, lv denied 8 NY3d 945; People v Walker, 285 AD2d 364, lv denied 97 NY2d 643; People v Mickens, 219 AD2d 543, lv denied 87 NY2d 904).

Despite this holding, which appears to differ for the CJI charge on justification, the held that

We nevertheless conclude that, despite the absence of the word "deadly" from that part of the court's charge defining the term initial aggressor, the court's justification charge adequately conveyed to the jury that defendant could be justified in the use of deadly physical force to defend himself against deadly physical force initiated by the victim. Thus, the justification charge, viewed in its entirety, was "a correct statement of the law" (People v Coleman, 70 NY2d 817, 819; see People v Melendez, 11 AD3d 983, 983-984, lv denied 4 NY3d 888; see generally People v Ladd, 89 NY2d 893, 895; People v McDaniels, 19 AD3d 1071, lv denied 5 NY3d 830).

Is People v Ventimiglia Still the Controlling Law?

In a number of recent decisions the Fourth Department has approved the admission of uncharged crime evidence despite the failure of the People to first obtain a pretrial Ventimiglia (52 NY2d 350) ruling. Most recently, in People v Maclean, 2008 NY Slip Op 01188 [4th Dept 2/1/08] the Court held that

We reject the contention of defendant that he was deprived of a fair trial when the court allowed the People to elicit evidence concerning uncharged crimes without first obtaining a Ventimiglia ruling. The court has discretion to admit evidence despite the failure of the People to provide advance notice of their intent to present such evidence (see People v McLeod, 279 AD2d 372, lv denied 96 NY2d 921; see generally People v Robinson, 28 AD3d 1126, 1128, lv denied 7 NY3d 794), particularly where the defendant was aware of the evidence (see Robinson, 28 AD3d at 1128; People v Himko, 239 AD2d 661, 662, lv denied 90 NY2d 906).

In Robinson (28 AD3d 1126 [4/28/06]), the Court held that

Defendant has failed to establish that he was prejudiced by the fact that the Ventimiglia evidence was deemed admissible as a result of an offer of proof made to the court during the sidebar conference at trial. "A defendant is not entitled to have such a [Ventimiglia] hearing conducted before trial" (People v Torres, 300 AD2d 46, 46 [2002], lv [*2]denied 99 NY2d 633 [2003]) and, furthermore, an offer of proof is acceptable where, as here, the defendant is aware of the proposed testimony (see People v Himko, 239 AD2d 661, 662 [1997], lv denied 90 NY2d 906 [1997]; see also People v Glass, 259 AD2d 989, 990 [1999], lv denied 93 NY2d 924 [1999]).

See also the decision of the Court in People v Small 2008 NY Slip Op 00855 [2/1/08)

The Maclean decision does not make clear whether there was ever a ruling on the admissibility of the evidence of uncharged crimes – either at a pre-trial hearing or in an offer of proof during the trial. Obviously, the content of defense counsel’s voir dire, opening statement, and questions to witnesses is impacted by counsel’s understanding as to the evidence which will be admitted at trial. Apparently, the Fourth Department no longer believes that there is a requirement that the People give pre-trial notice of intent to elicit such evidence. Notably, none of the decisions the Court cites in support of its holding are from the Court of Appeals. One would think that a relaxation or outright rejection of a requirement that the admissibility of evidence of uncharged crimes be determined pre-trial is a matter of statewide significance which the Court of Appeals should want to consider.

AD 4th Department Decisions of February 1, 2008

People v Whyte 2008 NY Slip Op 00740

Contrary to the contention of defendant, County Court properly refused to suppress evidence allegedly obtained as a result of a violation of his physician-patient privilege. Indeed, "even if there was a violation of the physician-patient privilege, the suppression of the evidence found as a result is not required" (People v Greene, 9 NY3d 277, 280). The court also properly refused to suppress statements that defendant made during a telephone conversation with the victim's mother that was recorded by the police. The statements were not obtained in violation of defendant's right to counsel because no formal proceedings had been commenced against defendant when the conversation was recorded, and it cannot be said that the matter had otherwise progressed from an investigatory to an accusatory stage (see People v Samuels, 49 NY2d 218, 221; see generally Kirby v Illinois, 406 US 682, 688-690; People v West, 81 NY2d 370, 373). In addition, the statements were not obtained in violation of defendant's right against self-incrimination despite the failure of the victim's mother to inform defendant that the police were recording the conversation (see People v Lee, 277 AD2d 1006, 1007, lv denied 96 NY2d 785; People v Williams, 242 AD2d 867, lv denied 91 NY2d 899).

People v Figgins 2008 NY Slip Op 00742

We reject the contention of defendant that his statutory and constitutional rights to a jury pool representing a fair cross section of the community were violated. "Defendant's motion papers failed to set forth sufficient facts demonstrating a systematic exclusion of African-Americans from the jury pool" (People v Cotton, 38 AD3d 1189, lv denied 8 NY3d 983; see People v Owens, 39 AD3d 1260, 1260-1261, lv denied 9 NY3d 849). Defendant offered no evidence indicating that the disproportionately lower percentage of African-Americans in the jury pool was attributable to some aspect of the process used to fill jury pools in Monroe County.

Also, in a burglary case the Court held that it was proper to allow

the People to introduce in evidence his admission that he used crack cocaine inasmuch as that admission was relevant to the issue of motive (see People v Tutt, 305 AD2d 987, lv denied 100 NY2d 588; see generally People v Ventimiglia, 52 NY2d 350, 359; People v Molineux, 168 NY 264, 293-294).

People v Torres 2008 NY Slip Op 00743

County Court erred in imposing a five-year period of postrelease supervision for a class D violent felony offense (see § 70.02 [former (1) (c)]; § 70.45 [former (2)]; People v Clinkscales, 35 AD3d 1266). Inasmuch as the record does not indicate whether the court intended to impose the maximum period of postrelease supervision, we modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing (see People v Bowden, 15 AD3d 884, lv denied 4 NY3d 851, 5 NY3d 786; cf. People v Roman, 43 AD3d 1282; People v Keith, 26 AD3d 879, lv denied 6 NY3d 835).

People v Morrison 2008 NY Slip Op 00744

We agree with defendant that defense counsel should not have questioned him concerning the underlying charges of his 1988 conviction when County Court's Sandoval ruling precluded the People from doing so and that defense counsel should have objected when the prosecutor questioned defendant in violation of the court's Sandoval ruling. We note, however, that defendant's answer to the prosecutor's question was non-responsive and that the prosecutor immediately moved on to a different line of questioning. We thus conclude that defense counsel's errors were not so egregious and prejudicial that they deprived defendant of his right to a fair trial.

People v Lundy 2008 NY Slip Op 00746

Contrary to the further contention of defendant, the court properly refused to order the People to provide the criminal history reports of certain prosecution witnesses inasmuch as the record establishes that the People were unaware of the criminal histories of those witnesses and thus were not required to furnish such reports (see CPL 240.45 [1] [b]; Defendant failed to preserve for our review his contention that the People failed to disclose alleged Brady material (see People v Little, 23 AD3d 1117, 1118, lv denied 6 NY3d 777; People v Martinez, 298 AD2d 897, 898, lv denied 98 NY2d 769, cert denied 538 US 963, reh denied 539 US 911) and, in any event, that contention lacks merit. The information at issue, i.e., the fact that a witness was testifying pursuant to a material witness order, does not constitute Brady material because it is not exculpatory (see generally People v Arhin, 203 AD2d 62, 63, lv denied 83 NY2d 908).

People v Nicol 2008 NY Slip Op 00777 and People v Reese 2008 NY Slip Op 00803
Defendants appeal from a new sentence pursuant to the 2005 Drug Law Reform Act ([DLRA-2] L 2005, ch 643, § 1) granted upon their applications to be resentenced upon his 2004 conviction of criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [former (1)]). Defendants’ contentions are the same as those raised by the defendant in People v Williams (45 AD3d 1377) and, for reasons stated in our decision in that case, we reverse the sentence and remit the matter to County Court to determine defendant's application in compliance with DLRA-2.

In People v Williams (45 AD3d 1377) the Court held that

the court erred in failing to comply with DLRA-2 because it failed to set forth written findings of fact and the reasons for its determination to impose a determinate term of 13 1/2 years imprisonment and a five-year period of postrelease supervision (see L 2005, ch 643, § 1). In addition, we conclude that the court erred in stating that the original sentence would stand before affording defendant an opportunity to exercise his right to appeal and to withdraw his application following that appeal (see id.).

People v Tabor 2008 NY Slip Op 00836

We agree with defendant that County Court erred in summarily denying his request to proceed pro se. "A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues" (People v McIntyre, 36 NY2d 10, 17; see People v D'Antuono, 263 AD2d 968, 969). In determining that a defendant is acting knowingly and voluntarily, the court must "ensure that the defendant . . . is aware of the disadvantages and risks of waiving his right to counsel" (People v Schoolfield, 196 AD2d 111, 115, lv dismissed 83 NY2d 858, lv denied 83 NY2d 915). Here, the record establishes that all three prongs of the test in McIntyre were met (see People v Ward, 205 AD2d 876, 877, lv denied 84 NY2d 873; cf. People v Lott, 23 AD3d 1088, 1089; see generally People v Arroyo, 98 NY2d 101, 103-104).

People v Delarosa 2008 NY Slip Op 00840

We agree with defendant that, by pleading guilty, he did not forfeit his contention that the People failed to disclose exculpatory evidence prior to the entry of his Alford plea (see generally People v Hansen, 95 NY2d 227, 230-231). " [T]he law . . . appears to be settled . . . [that] Brady material must be disclosed in time for its effective use at trial . . . or at a plea proceeding' " (People v Reese, 23 AD3d 1034, 1036, lv denied 6 NY3d 779, quoting United States v Coppa, 267 F3d 132, 135 [emphasis omitted]), and it would undermine Brady's disclosure requirements if a defendant were deemed to have waived a Brady issue by entering an Alford plea without the knowledge that the People possessed exculpatory evidence. Nevertheless, we conclude that there was no Brady violation based on the prosecutor's failure to provide defendant with the written statement of a witness inasmuch as it was duplicative of comments made by the witness during a 911 call that was recorded and disclosed to defendant before he entered his plea. "Brady does not . . . require prosecutors to supply a defendant with evidence when the defendant knew of, or should reasonably have known of, the evidence and its exculpatory nature" (People v Doshi, 93 NY2d 499, 506; see People v LaValle, 3 NY3d 88, 110; People v Terry, 19 AD3d 1039, 1040, lv denied 5 NY3d 833).

People v Canales 2008 NY Slip Op 00850

We reject the...contention of defendant in support of his motion that he was entitled to withdraw the plea because he was unaware of the immigration consequences of his plea at the time he entered the plea. We reject that contention as well, inasmuch as the immigration consequences of a plea do "not affect the voluntariness of the plea or warrant its vacatur" (People v Klein, 11 AD3d 959, 959). Finally, defendant contends that he was denied effective assistance of counsel based on the failure of his two attorneys to advise him of the immigration consequences of the plea. To the extent that the contention of defendant survives his plea of guilty (see People v Burke, 256 AD2d 1244, lv denied 93 NY2d 851), we conclude that it lacks merit (see People v Ford, 86 NY2d 397, 405).

People v Small 2008 NY Slip Op 00855

County Court properly permitted the People to present Molineux evidence to rebut defendant's agency defense (see People v Ortiz, 259 AD2d 979, 980, lv denied 93 NY2d 1024). Contrary to the contention of defendant, he was not entitled to notice of the People's intention to present such evidence or to a pretrial hearing on the admissibility of such evidence (see People v Torres, 300 AD2d 46, lv denied 99 NY2d 633).

In a reminder to trial counsel of the need to preserve Crawford - confrontation claims that Court held that

Although we agree with defendant that the court erred in admitting in evidence a laboratory report relating to a prior conviction inasmuch as the People failed to establish a proper foundation for the admission of that report (see Matter of Samuel A., 63 AD2d 585), we conclude that the error is harmless (see People v Crimmins, 36 NY2d 230, 241-242). Defendant failed to preserve for our review his further contention that the admission of the laboratory report in evidence violated his constitutional right to confront witnesses against him (see CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

People v Ortiz and Vega 2008 NY Slip Op 00858

County Court had ordered that the charges in an indictment against two defendants be reduced. Neither defendant submitted in briefs in response to the People’s successful appeal of this order. It is difficult enough to win with an attorney. Who dropped the ball?

People v Davis 2008 NY Slip Op 00866

...[C}ontrary to defendant's contention, the showup identification procedure, which was conducted in geographic and temporal proximity to the crime, was not unduly suggestive (see People v Ortiz, 90 NY2d 533, 537; People v Duuvon, 77 NY2d 541, 544). The fact that defendant was removed from a police car does not render the showup identification procedure unduly suggestive (see People v Ponder, 19 AD3d 1041, 1043, lv denied 5 NY3d 809), nor does the fact that he was in handcuffs and was standing next to two police officers render it unduly suggestive (see People v Delarosa, 28 AD3d 1186, 1187, lv denied 7 NY3d 811).

With misidentification being the single greatest cause of wrongful convictions (add cite) one wonders what factors would render showups unduly suggestive.

People v Christopher T. 2008 NY Slip Op 00875

A challenge to the legality of a sentence is not precluded by a defendant's waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10; People v Coleman, 23 AD3d 1033), and we reach the issue despite defendant's failure to raise it at sentencing or on appeal inasmuch as "we cannot allow an [illegal] sentence to stand" (People v Davis, 37 AD3d 1179, 1180, lv denied 8 NY3d 983 [internal quotation marks omitted]). "Where an eligible youth is convicted of two or more crimes set forth in separate counts of an accusatory instrument . . ., the court must not find him a youthful offender with respect to any such conviction . . . unless it finds him a youthful offender with respect to all such convictions" (CPL 720.20 [2]; see People v Huther, 78 AD2d 1011). Here, defendant was convicted of "two or more crimes set forth in separate counts of an accusatory instrument" (CPL 720.20 [2]) and, thus, upon adjudicating him a youthful offender with respect to robbery in the first degree under count one of the superior court information, the court was required to adjudicate him a youthful offender with respect to the remaining counts (see Huther, 78 AD2d at 1011). Moreover, having adjudicated defendant a youthful offender, the court "was without authority to impose consecutive sentences in excess of four years" (People v Ralph W.C., 21 AD3d 904, 905; see Penal Law § 60.02 [2]; People v Simmons, 188 AD2d 668, 669, lv denied 81 NY2d 893). We therefore reverse the judgment and modify the adjudication accordingly.

People v Smith 2008 NY Slip Op 00904

An issue likely to result in appellate relief, even when unpreserved:

[W]e agree with defendant that the court erred in calculating the expiration date of the order of protection without taking into account the jail time credit to which she is entitled (see People v Clinkscales, 35 AD3d 1266, 1267; People v Hare, 27 AD3d 1171, 1172, lv denied 6 NY3d 892, 894, 898). Although defendant failed to preserve that contention for our review, we exercise our power to review that contention as a matter of discretion in the interest of justice (see People v Fomby, 42 AD3d 894, 895; People v Valdez, 41 AD3d 1255, lv denied 9 NY3d 882).

People v Lavilla 2008 NY Slip Op 00930

Defendant moved pursuant to CPL 440.20 (1) to set aside the postrelease supervision part of his sentence as illegally imposed or, in the alternative, for an order setting forth that his sentence does not include a period of postrelease supervision. As limited by his brief, defendant appeals from that part of the order denying his alternative request for relief. We affirm. Pursuant to CPL 440.20 (1), a court in which the judgment of conviction was entered may set aside the sentence on specified grounds and, if defendant had sought to set aside his sentence or withdraw his plea, we would be compelled to permit him to do so (see People v Hill, 9 NY3d 189). Defendant has disavowed his prior request to set aside his sentence, however, and challenges only Supreme Court's refusal to issue an order setting forth that the sentence does not include a period of postrelease supervision. The statute does not authorize the court to issue such an order (see CPL 440.20 [1]), and we thus conclude that the court properly refused to grant that relief.

People v Aaron V. 2008 NY Slip Op 00931

A count dismissed based on an issue raised only in an appellant's pro se supplemental brief.

We agree with the contention of defendant in his pro se supplemental brief that the court erred in failing to grant that part of his omnibus motion seeking to dismiss the third count of the indictment, charging him with sexual abuse in the third degree, on the ground that it was facially defective. "The indictment must set forth a time interval that reasonably serves the function of protecting defendant's constitutional right to be informed of the nature and cause of the [*2]accusation" (People v Risolo, 261 AD2d 921, 921 [internal quotation marks omitted]) and, here, the 12-month period set forth in that count was unreasonable (see People v Beauchamp, 74 NY2d 639, 641; People v Keindl, 68 NY2d 410, 419, rearg denied 69 NY2d 823; see also People v Sedlock, 8 NY3d 535, 539-540), in view of the fact that the victim was 13 or 14 years old during that time period and thus was capable "of discerning, if not exact dates, at least seasons, school holidays, birthdays, or other events which could establish a frame of reference to assist [her] in narrowing the time spans alleged" (Keindl, 68 NY2d at 420). Contrary to the further contention of defendant in his pro se supplemental brief, however, the 4½;-month time period set forth in the first count, charging him with rape in the first degree, was not excessive, in view of the nature of the offense and the age of the victim.

AD4: Decisions issued December 21, 2007

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

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

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

However, the court ruled that

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

The Court also noted

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

AD4: Decisions issued November 23, 2007

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Disorderly Conduct requires more than a mere inconvenience of pedestrians

From Jim Eckert:

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

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

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

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

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

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

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

.

I Think I Just Asked For An Attorney

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

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

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

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

More decisions from November 9, 2007

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

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

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

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

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

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

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

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

Must IAC Claims Be Preserved?

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

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

Appellate Review of Bargained for Sentences

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

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

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

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

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

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

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

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

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

Here is what the Court wrote in Thompson

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

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

Ed Nowak -- Appellate Superstar

Its been two week since Ed Nowak has announced his plans to retire after serving thirty years as the Monroe County Public Defender. Since then numerous people have expressed to me their appreciation of Ed's impressive accomplishments as Public Defender. Many have referenced Ed's ability to attract and keep highly qualified attorneys and support staff dedicated to providing high quality representation to our clients. Others have focused their comments on Ed's contributions, both on a local and state level, to achieving a just criminal justice system . Still others have mentioned how they have come to depend on Ed and his lectures on the decisions of the Court of Appeals as as a key way of keeping informed of developments in New York law. All of these accolades are obviously well deserved. Yet, I think that there is one aspect of Ed's achievements as a Public Defender that has received insufficient attention -- Ed's remarkable achievements as an appellate advocate.

Ed was 29 years old and already the Monroe County Public Defender when he argued and won Dunaway v New York, 442 US 200 [1979]. To appreciate how big a victory that was, one needs to realize that not only had had the New York Court of Appeals held in People v Morales,42 NY 2d 129 [1977] that only reasonable suspicion was needed to hold someone for questioning , but the Appellate Division, Fourth Department had already held in Dunaway that, even if his detention was unlawful, Mr. Dunaway's statement was attenuated from any such illegality. Ed persuaded the Supreme Court that there is a higher standard to be met before a person can be detained for purposes of questioning. Justice Brennan's decision in Dunaway already been cited more than 6300 times.

At age 33, Ed argued and won People v Parker, 57 NY2d 136 [1982], getting the Court to vacate Ms. Parker's conviction because she had not been told of the consequences of her failure to appear at her trial. Ed had argued for and achieved more than a reversal for Ms. Parker. Instead of simply arguing that she had not knowingly waived her right to be present at trial, Ed sought and obtained a ruling that in order for any defendant's absence from trial to be found to be knowing, intelligent, and voluntary, defendants first must be warned as to what would occur if they fail to appear. On the long drive back from Albany and that oral argument, the young attorney in the car with Ed, having witnessed the tough questioning which Ed had just endured, suggested that perhaps Ed should have taken the more moderate approach and just sought a narrow win. I guess I was wrong.

So by age 33, Ed was responsible for Dunaway hearings and Parker warnings.

By the way, Ed was also the winning attorney in People v Brooks, 75 NY2d 898 [1990], in which the Court held that even when "Parker warnings" are given, it is error to proceed in abstentia without there being a a record and determination establishing that the defendant's absence was deliberate.

Even when Ed failed to obtain reversal of his client's convictions, his work made a huge impact on the development of law. For example, in People v Lipsky, 57 NY2d 560 [1982] the Court of Appeals ruled against Ed and reinstated the murder conviction of his client Leonard Lipsky. this was a case in which there was no body and Mr. Lipsky's statement was the primary, if not exclusive, evidence of death. The Court of Appeals held that Mr. Lipsky's confession was sufficiently corroborated despite the fact that body of victim was never found and there was no direct evidence, other than confession, that defendant caused the victim's death, since there was circumstantial evidence calculated to suggest that victim was dead and implicating defendant as the criminal agency, the key to which was furnished by defendant's confession. After losing at the Court of Appeals Ed got the Appellate Division, Fourth Department, on further appeal, to reverse the conviction of the ground that the corroboration of the confession was insufficient under the instruction given to the jury. (Murder prosecution and convictions when there is no body are still subject to the peril (and embarrassment) that someone might see the supposed decedent alive after the time of the supposed homicide. See last week's headline).

But the loss which bothered Ed the most (other than the many losses by Notre Dame) was the 4-3 decision of the Court in People v Register, 60 NY2d 270 [1983] that "depraved indifference" is neither a mens rea nor an actus rea. For more than twenty years Ed would complain how the Register decision made deprave murder such a standardless, amorphous concept that it violated due process. Of course, our office raised that argument unsuccessfully in People v Johnson, 87 N.Y.2d 357 [1996]. But finally, in 2003, in People v. Feingold, 7 N.Y.3d 288 [2003], the Court recognized that it had erred in Register and that, as Ed had argued, depraved indifference to human life is a culpable mental state. Having that loss corrected and undone, I guess Ed feels he is now free to retire.

I could go on, but I think the point is clear. Ed's contributions as an appellate attorney are as impressive as his many other achievements.

It's ineffective to not raise claims of ineffective assistance of counsel

At a recent CLE on Appellate Ethics the question was raised as to whether it was a good use of appellate counsel’s time to raise claims of ineffective assistance of counsel (IAC), given the small number of reversals on that ground. I resisted the temptation to answer that, using that logic and given the small percentage of reversals on any issue, perhaps it is a waste of time for an attorney to work on all but a few criminal appeals. But I was glad for the question, because it insured that I would give adequate time to addressing why IAC is perhaps the most important issue to raise when there is a non-frivolous basis for believing trial counsel was ineffective.

First, we owe it to our clients. Courts have repeatedly recognized that the right to counsel is the perhaps the most fundamental of all of the rights of a defendant in a criminal case since it is through the right to counsel that other rights are protected. Further, courts recognize that the right to counsel means the right to effective assistance of counsel, since otherwise it is not a meaningful right at all. A defendant who received IAC, not only is deprived of the right to counsel, but of the protection of his other rights, as well. It is the essential function of appellate counsel to point out the deprivation of a client’s rights, particularly a deprivation which transforms the process into one with a veneer of protections though counsel. If you don’t care enough about your clients to point out when they received IAC in the lower court, find other work. Besides, your chance of reversal on other grounds appears to increase when a strong issue of IAC is raised even when that issue is not the basis of reversal (or even mentioned in the decision). Even an unpreserved bolstering issue raised in point 2 can be a basis for reversal when the first point is a strong IAC point (See, e.g. People v McCullough, 38 AD3d 1203 [4th Dept 2007].

Second, we owe it to our profession. If we silently tolerate lawyering that you wouldn’t wish on the guy who burglarized your house, the standards as to what is acceptable for our profession will either drop to or remain (depending on one’s perspective) at the constitutionally required minimum. We should expect more of ourselves than that very low – there might well have been some strategic basis for the action/inaction which severely damaged the client’s case – standard. One key way of pushing defense attorneys to do things as basic as renewing TOD motions (as required by the Court of Appeals since 2001, for legal sufficiency claims to be reviewable as a matter of law, yet this term like almost every term the Fourth Department has refused to review claims of legally insufficiency due to counsel's failure to renew -- see, here and here), is to keep on pointing out how inexcusable it is for attorneys to fail to know the relevant law and to display an understanding of what evidence will help or hurt their clients.

Third, we owe it ourselves. Courts have granted writs of error coram nobis based on the ineffective assistance of appellate counsel who have failed to raise the issue of IAC of trial counsel (See, e.g, People v Johnson, 43 AD3d 1453 [4th Dept 2007]. An easy way to avoid this embarrassment is to raise the issue when presented.

Fourth, we owe it to the appellate courts. If the issue of IAC is not presented with the brief marshaling the facts and arguments in support of the claim, the appellate court cannot be fairly expected to reach out and reverse on the issue. Nor can the court be expected to develop an understanding of the quality of counsel offered by a particular attorney who repeatedly engages in substandard work, unless appellate briefs point out the cases in which counsel provided lousy representation.

Finally, if we don’t raise the issue of IAC we will not experience the satisfaction that Eric, the former author of this blog must be feeling tonight, having won a reversal on IAC grounds in People v Rivera, 2007 NY Slip Op 08488 [4th Dept 11/09/07].

The basis of reversal? A prospective juror told the court that she was "embarrassed to really say it, but [she had] trouble with the intent to sell" and, for defendant's "sake, [she] probably wouldn't be able to go in with an open mind."

In response to a question by County Court whether she "would have difficulty setting aside that feeling," the prospective juror responded "Uh-huh." The court thereafter asked whether either the prosecutor or defense counsel objected to excusing the prospective juror, and defense counsel indicated that he had a problem excusing her at that point. Defense counsel then reminded the prospective juror that the court had instructed the prospective jurors that, if a vote with respect to defendant's guilt were to be taken at that time, the jury would have to find defendant not guilty because no evidence had been presented. When asked whether she would have difficulty "rendering that verdict now if asked to do so," the prospective juror responded "I don't know." Defense counsel stated that, if there was no evidence, "[y]ou can't find him guilty of anything. Is that okay?" The prospective juror then responded "Um-hum."The prosecutor challenged the prospective juror for cause, despite his belief that she would be "beneficial" to his case. Defense counsel stated that there "might be a question" with respect to the prospective juror but he believed that, when questioning her, "she indicated pretty clearly that she would decide the case on the evidence." The court stated to defense counsel, "She seemed to indicate that she has a problem with the intent to sell drugs." The court then asked defense counsel, "[it] doesn't bother you?" and defense counsel responded in the negative.

The Court concluded that

Although defense counsel's decision not to consent to the removal of the prospective juror from the panel for cause may have been one of strategy ... we conclude that any such strategy "fell short of an objective standard of reasonableness" (People v Turner, 5 NY3d 476,485 [2005]), and we thus conclude that defendant was denied a fair trial.

Listen to the Police

From Jim Eckert:

At pretrial suppression hearings, the hearing court will often rule that
the arresting officer's opinion whether he arrested the defendant is
irrelevant, since objective facts, not the officer's subjective belief,
controls when an arrest occurs. Also, because the answer is usually
beneficial to the defense, and we can't have that. I always thought it was
relevant, because the officer's intent could be expected to affect how he
dealt with an individual, and therefore valid circumstantial evidence if
nothing else - relevance is a very low threshold.

In any event, a Court of Appeals case issued in a Family Court proceeding
lends support to the relevance of the officer's subjective belief that he had arrested the defendant:

In the Matter of Victor M., A Person Alleged to be a Juvenile Delinquent

Finally, the presentment agency argues before us that Officer Recio's detention of Victor was not an arrest, but only a stop based on a reasonable suspicion that Victor was trespassing or loitering (see People v Hicks, 68 NY2d 234, 238-239 [1986]; People v DeBour, 40 NY2d 210, 223 [1976]). The flaws in this argument are many. Officer Recio testified to an "arrest," not a temporary detention. Temporary detentions are authorized by statute only for felonies and misdemeanors, not violations (CPL 140.50 [1]). A temporary detention justifies only a frisk, not a full-fledged search (DeBour, 40 NY2d at 223). And finally, assuming that transporting a suspect to the station house in handcuffs could ever be found to be only a temporary detention under DeBour and Hicks, even a temporary detention is unlawful if it is not reasonable under the circumstances. Here, nothing in the record shows that it was reasonable for Officer Recio to take Victor to the station house, instead of going with him to his apartment to get his identification.

The court's phrasing ("testified to an 'arrest'"), and use of quotation
marks around the term "arrest", lead one to believe that the Court is
relying on the officer's testimony (i.e. his subjective belief) that he
arrested the juvenile. Since it was an important part of a decision of the
Court of Appeals, one would think it would be fair to argue that whether a police officer believes he arrested the defendant or not meets the test of mere
relevance.

September Term Roundup

There were only two reversals in criminal appeals this term, People v Rodriguez (2007 NY Slip Op 07123)(Here, discussed previously) and People v Jones 2007 NY Slip Op 07249)(Here), in which after a remand for the trial court to make fact finding on whether the search was consensual, the Court that

the People did not meet their burden of demonstrating the legality of the police conduct, and thus the court suppressed the tangible evidence seized pursuant to the purportedly consensual search of the vehicle. We reject the People's contention that the court erred in its determination. In reviewing suppression issues, great weight is accorded to the determination of the court "with its peculiar advantages of having seen and heard the witnesses" (People v Prochilo, 41 NY2d 759, 761; see People v Williams, 202 AD2d 976, lv denied 83 NY2d 916). Here, the court's factual findings are supported by the evidence and should not be disturbed (see generally People v Miller, 244 AD2d 828).

The Court thus reversed the conviction.

Some other decisions which caught my eye, include

People v Adams (2007 NY Slip Op 07237)(Here) an appeal from an arson conviction in which the defendant urged

that the expert testimony of the arson investigator at trial improperly invaded the jury's province. Although we agree with defendant that County Court erred in allowing the arson investigator to testify that the fire was intentionally set, we conclude that the error is harmless.

People v Bryant (2007 NY Slip Op 07182)(Here)in which the Court held that despite the victim testifying at trial that one of the police officers who showed her a photo array pointed to one of the photographs and said, "[I]sn't that the guy in one of those pictures" it was not error for the court to deny defense motion to reopen the Wade hearing. The Court explained

In denying defendant's motion, the court stated that the victim "seemed somewhat confused" during her testimony and ruled that it would allow defense counsel to point out the identification issue to the jury during summation. The court also permitted defense counsel to cross-examine the police officers involved in the identification procedure, and both officers denied directing the victim to select a particular photograph. We therefore conclude that the court did not abuse its discretion in denying defendant's motion to reopen the Wade hearing
Thus, a defendant cannot call the victim as a witness at the pre-trial Wade hearing and cannot get the hearing reopened when the victim finally testifies at trial and gives describes a suggestive procedure..

On a more pleasant note, People v Agha (2007 NY Slip Op 07187)(Here remanded a case for resentencing, because it was confident that the sentencing court's claim that it had not considered impermissible information in imposing sentence was accurate.

At sentencing, County Court referred to a prior conviction of defendant's brother for a similar crime. The court indicated that, in the prior case and the instant case, defendant's brother had come to the defense of defendant. Defendant objected on the ground that he was not charged in the prior case involving his brother. Although the court stated that it would not draw an adverse inference against defendant based on the prior case, we conclude on the record before us that the court may in fact have relied upon information that was inaccurate in sentencing defendant (see People v Gardner, 28 AD3d 1221, 1223, lv denied 7 NY3d 812).

Judge Smith dissented.

In People v Vasquez (2007 NY Slip Op 07168) (Here), after again holding that

[b]y failing to object to County Court's ultimate Sandoval ruling, defendant failed to preserve for our review his contention that the court abused its discretion in ruling that the People could cross-examine him with respect to a previous conviction of rape

the Court reduced Mr. Vasquez's sentence to 7½; to 15 years explaining

in view of the circumstances of this case, including the small quantity of cocaine possessed and sold by defendant, we conclude that the sentences imposed for the criminal sale of a controlled substance in the third degree and each count of criminal possession of a controlled substance in the third degree are unduly harsh and severe.

The decision does not set forth the circumstances nor the quantity of cocaine involved.

Similarly, in People v Miller (2007 NY Slip Op 07121) (Here), the Court lowered the SORA risk level, where

The point total on the risk assessment instrument prepared by the Board of Examiners of Sex Offenders (Board) presumptively classified defendant as a level one risk, and the Board did not recommend an upward departure from that risk level. We conclude on the record before us that County Court erred in granting the People's request for an upward departure from defendant's presumptive risk level to a level three risk. "The People failed to demonstrate by clear and convincing evidence the existence of an aggravating factor of a kind or to a degree not otherwise adequately taken into account by the guidelines that would warrant such an upward departure" (People v Fuller, 37 AD3d 689; see People v Burgos, 39 AD3d 520).