Final unofficial stats: Fourth Department 2005

Here are my unofficial 2005 stats for the Fourth Department:

Total criminal cases decided: 577
Total reversals/modifications: 58

On the face of it, the Fourth Department reversed or modified about 10% of the criminal convictions reviewed, which is right around the historic average for the Court. However, 5 of those 58 reversals were People's appeals, 2 were modifications of orders of protection that can hardly be characterized as substantive reversals, and 17 were sentence modifications (some more significant than others). When those cases are removed, the actual number of substantive, pro-defendant reversals drops to 38 for the year--or about 5% of the total criminal cases heard.

Unofficial stats: November/December 2005 term

Here are my unofficial stats for the Fourth Department's November/December 2005 term:

Total criminal cases decided: 84
Total reversals/modifications: 4

Of those four reversals, one was a People's appeal. A tough term to be a criminal defendant.

I will have the complete unofficial year-end stats for the Fourth Department tomorrow.

Leftovers (November/December term)

Here are the rest of the noteworthy decisions from the Fourth Department's November/December 2005 term (such as they are):

People v Vigliotti, __ AD3d __ (available here): Defendant's attorney was found guilty of federal crimes and disbarred subsequent to representing defendant at murder trial. It was also revealed during disciplinary action that the attorney was addicted to cocaine and alcohol during time he was representing defendant. Defendant made a 440 motion arguing that "he was denied effective assistance of counsel because defense counsel had a substance abuse addiction and was involved in criminal activity at the time he was representing defendant." (People v Vigliotti, __ AD3d at __.) The trial court denied the 440 motion without a hearing, and the Fourth Department affirmed because defendant "failed to allege any facts linking the problems of defense counsel to his representation of defendant." (Id.)

People v Harrison, __ AD3d __ (available here) & People v Haberer, __ AD3d __ (available here): sounding a familiar refrain, the Fourth Department finds the defendant's legal sufficiency arguments unpreserved because trial defense counsel failed to renew his motion after presenting evidence."

People v Little, __ AD3d __ (available here): finding Sandoval issue only partially preserved because "[a]lthough defendant contends that the court's Sandoval ruling constitutes an abuse of discretion, he objected to the court's ultimate Sandoval ruling only with respect to the ruling on a misdemeanor sexual abuse conviction, and thus only that part of his contention is preserved for our review." See my previous post on this issue here.

People v Vega, __ AD3d __ (available here): holding that defendant's waiver of right to appeal "encompasses the contention of defendant that the Rockefeller Drug Law Reform Act, enacted after he was sentenced, violates his right to equal protection of the law because it allows persons convicted of class A-I drug felonies to petition for resentencing pursuant to the Act's sentencing scheme but does not afford the same relief to persons, including defendant, who were convicted of class A-II drug felonies."

People v Taylor, __ AD3d __ (available here): emergency exception to warrant requirement found applicable where "[i]n responding to a telephone call from a relative informing the police that defendant's father was not answering telephone calls or responding to letters or knocking on his door for a period of several weeks, a police officer detected a 'strong aroma' emanating from an open window, and he believed the odor to be that of a decaying body." I have not read the cases the Fourth Department cites to for this broad reading of the emergency exception, but the fact that a person is missing for weeks and the responding officer can smell the decomposing body would seem to lead to the unremarkable conclusion that time is not really of the essence anymore.


People v McClain, __ AD3d __ (available here): SCI held jurisdictionally defective "to the extent that it charges attempted robbery in the third degree, which under the circumstances was not properly joinable with the assault charges on which defendant was held for action of the grand jury;" the Court further noted that the issue did not need to be preserved and was not encompassed by defendant's waiver of right to appeal.

People v Rodriguez, __ AD3d __ (available here): trial court erred "in permitting the prosecutor to impeach his own witnesses because the trial testimony of those witnesses did not tend to disprove the People's position with respect to a material fact or affirmatively damage the People's case," but error harmless.

Fourth Department splits with First and Second Departments over correct "justification" charge in murder cases with manslaughter lessers

People v Bolling, __ AD3d __ [available here]

At the end of Brandon Bolling's murder trial, the trial court "submitted the two counts of murder followed by the lesser includes charges of manslaughter in the first and second degrees, and then gave an appropriate charge on the defense of justification, instructing the jury to acquit defendant of any charge it found he committed if the People failed to disprove justification beyond a reasonable doubt." (People v Bolling, __ AD3d __, ___ [4th Dept 2005].) The trial court did not further instruct the jury "that, if it found that defendant's conduct was justified with respect to the first count of the indictment, it should cease deliberating and should not consider the second count or any lesser included counts." (Id.) On appeal, defendant argued that the failure to give this further charge--that once justification was found on a top charge, the jury must acquit on all lesser counts and stop deliberating--was error requiring reversal. The Fourth Department disagreed and affirmed, explaining only that "the court's charge was a correct statement of the law when viewed in its entirety and adequately conveyed to the jury 'the correct principles of law to be applied to the case.'" (Id [citations omitted].)

As noted by the Fourth Department in its decision, the First and Second Departments have reached the opposite conclusion on this issue. Just this past year, the Second Department in People v Feuer noted:

This Court has repeatedly held that the error committed by the trial court in failing to instruct the jurors that if they found the defendant not guilty of a greater charge on the basis of justification, they were not to consider any lesser counts, is of such nature and degree so as to constitute reversible error. Our precedent in this regard is sound and ineluctable.

(People v Feuer, 11 AD3d 633, 634 [2d Dept 2004].)

The reason for reversing in cases where the jury was not expressly told that a finding of justification on a top charge precludes a finding of guilty on a lesser charge is simple: if the jury finds defendant's actions were justified, the defense does not simply knock out an element or negate intent, but rather renders the conduct entirely lawful. Thus, where no specific charge is given, "there is no way of knowing whether the acquittal of the two murder counts was based on a finding of justification, so as to require acquittal of the two manslaughter counts as well, [and] the judgment must be reversed and the indictment dismissed [...]." (People v Roberts, 280 AD2d 415, 416 [1st Dept 2001].)

The reasoning of the First and Second Departments seems sound, and the Fourth Department's decision in Bolling does not attempt to address the reasoning adopted by the decisions from the First and Second Departments, and instead simply states that "we decline to follow them." (Bolling, __ AD3d at ___.) Whatever the Fourth Department's reasoning, the split between the Fourth Department and the First and Second Departments on this issue could not be more clear; hopefully the Court of Appeals will grant leave and settle the matter.

I Give You . . .

the two substantive pro-defendant reversals from the Fourth Department's latest term.

People v Skardinski, __ AD3d __ [available here]
People v Fagan, __ AD3d __ [available here]

Each opinion reaches a good result, but neither breaks any new ground. In People v Skardinski, the Fourth Department found the DWI defendant's purported "consent" to a blood test was not voluntary where, 1) she was very badly injured from the accident, 2) she was receiving copious amounts of morphine, 3) the State Trooper lied to her about the consequences of withholding consent, and 4) "defendant signed the consent for at an irregular angle across the title of the document rather than on the designated signature line." (People v Skardinski, __ AD3d at __.) The Fourth Department's opinion comes to the unremarkable conclusion that any consent obtained from a severely injured, drugged up defendant who has been lied to by the police is not voluntary. The only question raised by this opinion is how the trial court found consent on those facts in the first place.

The other term's reversal is People v Fagan, where the Fourth Department reversed because "County Court erred in refusing to charge the jury on the justifiable use of deadly physical force to prevent or terminate a burglary." (People v Fagan, __ AD3d ___.) The facts of Fagan read like a real-life match of paper-rocks-scissors:

When viewed in a light most favorable to defendant, the evidence herein establishes that the victim threatened to kill defendant and then chased defendant into defendant's house while carrying a hatchet. When the victim fell once inside the house and dropped the hatchet, defendant picked up the hatchet. The victim ran outside and then reentered the house, swinging a two-by-four at defendant.

(Id. at __.)

On those facts, the Court concluded "that there is a reasonable view of the evidence that the victim entered and reamained inside defendant's house with the intent to commit a crime, i.e. an assault. The victim's 'violent conduct and numerous threats to kill defendant . . . support the reasonableness of defendant's belief that deadly physical force was necessary to prevent or terminate a burglary.' The court thus erred in failing to instruct the jury on the justifiable use of deadly physical force to prevent or terminate a burglary." (Id..) The lesson of Fagan is a practicle one: a machete will beat a two-by-four every time.

Decision Day (November/December 2005 Term)

The Fourth Department handed down decisions for the November/December 2005 term today. No standout opinions (although I guess defense attorneys should not complain after the two great Court of Appeals decisions handed down this week). For tonight, I will highlight People v Fuqua, a case that should serve as a cautionary tale to would-be criminals about the care and thought that needs to go into picking a proper street name--preferable one that will not come back to haunt you. The issue in Fuqua was whether the police officer had reasonable suspicion to believe Mr. Fuqua was armed sufficient to justify the pat-down search for weapons that led to the discovery of drugs. The Court had no problem in finding such reasonable suspicion existed, in part because the "defendant's street name, "Blaze Off", related to defendant's propensity to use guns." (People v Fuqua, __ AD3d __ [available here].) For those defense attorneys employing a holistic approach to criminal defense work, perhaps it is worth considering advising your clients of the benefits of a wussy street name (perhaps Fuzzy or Cuddles). Sure, such a moniker does not exactly inspire fear; but neither does it give a police officer reason to believe you are carrying.

More on the other notable decisions from this terms packet (along with more on the two great Court of Appeals decisions decided this week) over the next few days.

People v Suarez: First Thoughts

It is beyond clear that the Court of Appeal's per curiam opinion in Suarez is meant to be a practical guide to trial courts dealing with the difficult issues raised by the Court's prior decisions in Gonzalez, Hines, and Payne. In a nutshell: the Court holds that "depraved indifference" murder and intentional murder should almost never be submitted together to the jury--and in a case where the indictment charges both intentional and "depraved indifference" murder, the trial court should dismiss one of counts before giving the case to the jury. From the opinion:

When depraved indifference murder is properly understood, 'twin-count' indictments--charging both intentional homicide and depraved indifference murder--should be rare. Twin-count submissions to a jury, even rarer. For by the time the proof has been presented, it should be obvious in most cases whether or not the evidence establishes 'an intentional [killing] or no other'. Thus, where twin-count indictments are lodged, trial courts should presume 'that the defendant's conduct falls within only one category of murder and, unless compelling evidence is presented to the contrary, dismiss the count that is least appropriate to the facts.'

(People v Suarez, __ NY3d at __.)

Indeed, for purposes of a single-victim homicide (i.e. excluding the "shooting/driving/throwing a grenade into a crowd" scenario),the Court has limited the proper scope of "depraved indifference" murder to two rare factual situations:

[D]epraved indifference murder can also be found in certain unintentional killings involving only a single individual. These limited cases are those in which--although the intent to kill is absent--the defendant's utter depravity in causing the victim's death warrants punishment in excess of that available for manslaughter. [...]

Two fact patterns have recurred over the past four decades of experience under the Revised Penal Law. First, when the defendant intends neither to seriously injure, nor to kill, but nevertheless abandons a helpless and vulnerable victims in circumstances where the victim is highly likely to die, the defendant's utter callousness to the victim's moral plight--arising from a situation created by the defendant--properly establishes depraved indifference murder. [...] Second, . . . the crime is . . . established when a defendant--acting with a conscious objective not to kill but to harm--engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim.

(Id. at __.)

I would guess the Court's per curiam opinion will have its (apparently) intended effect of dramatically reducing the charging of "depraved indifference" murder to a rare subclass of murder, and thereby avoid entirely the thorny issues that arise when the jury convicts a defendant of depraved indifference murder where the evidence shows a manifest intent to kill. Of course, the Court is also (quite legitimately) attempting to spare itself the unpleasant task of reversing those "depraved indifference" convictions, and opening the prison gates on intentional killers because prosecutors and trial courts want to have their cake and eat it, too.

One quick nit to pick from the decision: in discussing the difference between "depraved indifference" murder and manslaughter in the first degree, the Court notes:

[S]omeone who intends to cause serious physical injury does not commit depraved indifference murder because the intended victim dies. By definition, "serious physical injury" includes injury "which creates a substantial risk of death, or which causes death". Thus, one who acts with the conscious intent to cause serious physical injury, and who succeeds in doing so, is guilty only of manslaughter in the first degree. Otherwise, every intentional manslaughter would also establish depraved indifference murder--a result plainly at odds with the discrete classification set forth in the statute.

(Id. at ___.)

I strongly disagree with that bolded bit. In fact, it does not take much imagination to think of a fact scenario where a person can intend to cause serious physical injury and ultimately cause death, but not create and disregard a grave risk of death in doing so. For example: suppose Victim owes substantial gambling debts to Defendant. Defendant cuts off Victim's thumb to encourage payment. Unbeknowst to Defendant, Victim has no clotting agents in his blood, and bleeds to death before treatment can be rendered. In that scenario, a conviction for first degree manslaughter is clearly made out: Defendant intended to cause serious physical injury (cutting off the thumb), and death resulted. However, it does not follow that "depraved indifference" murder is made out, because the harm inflicted did not create a grave risk of death, and Defendant did not ignore any such risk by cutting the thumb off.

But the flip-side is also true--in certain situations, a conviction for manslaughter in the first degree and a conviction for depraved indifference murder can be completely consistent. The reason is simple: a person can act with a different mental state for different results. For example: say our Victim owes gambling debts, but this time Defendant cuts off Victim's leg and leaves him bleeding on a busy street corner. Victim dies as a result of his wounds. The Defendant testifies that he had no intent to kill, because then he would never collect his debt. Assume the jury believes Defendant. In that case, a conviction for manslaughter in the first degree is clearly made out: Defendant intended to cause serious physical injury, and death resulted. I would also argue that a conviction for depraved indifference murder is made out, because Defendant, while not intending to cause death, arguably created a grave risk of death by cutting off Victim's leg, and ignored that risk in going ahead with the amputation. I would argue both counts are consistent, both could be submitted to the jury, and the jury could convict on both: as to the outcome of serious physical injury, Defendant acted intentionally; as to the outcome of death, Defendant acted recklessly (by creating the grave risk of death and ignoring it) under circumstances evincing a depraved indifference to human life.

I understand what the Court of Appeals is doing--they are clarifying a messy area of the law and providing (hopefully) clear guidelines for trial courts to follow. However, I think the Court's conclusory holding that every time a defendant intends to cause serious physical injury and death results he "is guilty only of manslaughter in the first degree" ignores that a defendant can have separate, distinct mental states for different distinct results.

Moreover, this distinction between manslaughter in the first degree and "depraved indifference" murder may lead to some counter-intuitive outcomes. Take a fact scenario similar to the one encountered in People v Kibbe (35 NY2d 407). The Court in Suarez held out the facts of Kibbe as the quintessential "depraved indifference" murder; as the Court notes, the defendants in Kibbe "robbed an intoxicated victim and forced him out of a car on the side of a dark, remote, snowy road, partially dressed and without shoes in subfreezing temperatures, where he was struck by a passing truck and killed." (Suarez, __ NY3d at ___.) Fair enough. But change the facts a little, and assume the intoxicated victim was robbed, intentionally stabbed in the thigh and then dumped on the side of the road in subfreezing temperatures, and the victim died of blood loss (with death's arrival hastened by exposure). By the majority's logic in Suarez, this fact pattern can only support a conviction for manslaughter in the first degree (because defendant intentionally inflicted a serious physical injury [the stab wound to the thigh] and death resulted). But this is counter-intuitive, because if the defendant been less evil and not stabbed the victim in the leg before dumping him, then he would be subject to the much more severe criminal sanction of a "depraved indifference" murder conviction. I think this is unnecessarily rigid--why not hold instead that a conviction for manslaughter in the first degree does not necessarily preclude a conviction for "depraved indifference" murder because the relevant mens reas are not mutually exclusive (i.e. two different mens reas for two different results [intentionally causing serious physical injury, recklessly causing death])?

Perhaps this is why the three-judge concurrence notes that "law school hypotheticals are not the stuff of day-to-day criminal courts." (Id. at __.) More on the concurring opinions and Judge Graffeo's dissent soon.

BREAKING: Court of Appeals hands down important "depraved indifference murder" decision

People v Suarez & People v McPherson __ NY3d __ (available here.)


The Court of Appeals has just handed down a lengthy, in-depth per curiam opinion further dealing with the difference between "depraved indifference" murder in the second degree, "intentional" murder in the second degree, manslaughter in the first degree and manslaughter in the second degree. (See my previous posts on this topic here, here, and here.) This joint appeal involved two defendants who were convicted of "depraved indifference" murder for stabbing their victims to death. The per curiam opinion reverses both convictions, and further clarifies that "depraved indifference" murder is not properly charged in the majority of cases; from the opinion:

The proliferation of the use of depraved indifference murder as a fallback theory under which to charge intentional killers reflects a fundamental misunderstanding of the depraved murder statute . . . depraved indifference murder properly applies to only a small, and finite, category of cases where the conduct is at least as morally reprehensible as intentional murder.

(People v Suarez, __ NY3d at __.)

The per curiam goes on to distinguish (at great length) depraved indifference murder from intentional murder and both degrees of manslaughter. Obviously, I will have much more to say about this opinion after a chance to fully digest it. The most interesting bits come from the three-judge concurrence of Judge G.B. Smith, Judge R.S. Smith and Judge Rosenblatt, who "would take a step beyond the per curiam opinion and say what the Court stops short of saying: that Register and Sanchez should be explicitly overruled." (Id. at __.) Judge Read also writes separately to concur, and Judge Graffeo concurs in one case and dissents in the other.

All in all, a monster decision in what was already an eventful week for the Court of Appeals (see my previous post on Goldstein here.)

Plus, the Fourth Department hands down decisions from its November/December term today.

Court of Appeals: Psychiatrist's trial testimony about what non-testifying third-parties told her prior to trial "testimonial" under Crawford

People v Goldstein, __ NY3d __ [available here]

The Court of Appeals today handed down an opinion defining for the first time in New York the reach of the Supreme Court's recent decision in Crawford v Washington. The Supreme Court in Crawford left open the most important question--what consitutes a "testimonial" statement? Importantly for criminal defendants, the Appeals (with Judge R.S. Smith writing for the majority) set forth a broad definition of "testimonial", holding that the statements of certain non-testifying third-parties made to the People's retained psychiatrist before trial were testimonial because "we infer that [the third-parties] knew they were responding to questions from an agent of the State engaged in trial preparation. None of them was making 'a casual remark to an acquaintance'; all of them should reasonably have expected their statements 'to be used prosecutorially' or 'to be available for use at a later trial.'" (People v Goldstein, __ NY3d __ [2005].) The Court went on to note "[r]esponses to questions asked in interviews that were part of the prosecution's trial preparation are 'formal' in much the same sense as 'depositions' and other materials that the Supreme Court identified as testimonial . . . Nor do we think the difference between an expert retained by the State and a 'government officer' is of consitutional significance here." (Id.) The Court reversed because the psychiatrist was able to repeat what she was told by these third-party witnesses at trial without those third-parties being available for cross-examination. (Id.)

This is a great opinion that reasonably defines "testimonial" in a broad sense, and should cover most statements by witnesses to police officers during a criminal investigation, autopsy reports (see my previous post on this open question here), and any number of other statements made under express questioning by law enforcement agents.

Judge Read dissented, but only because she would have found the error
harmless. (Id.)

The Goldstein opinion also calls into question Justice Fisher's recent decision in Green v DeMarco (posted about here), where he found DWI certification records not testimonial. Certainly, whatever else the Albany techs servicing the breathalyzers knew or thought about the nature of their calibration work, they should have reasonably known that the calibration records they generated would be used to prosecute DWI defendants. It does not seem to be possible to square Justice Fisher's decision in DeMarco with today's Court of Appeals decision in Goldstein.

Court of Appeals: Representation by "impostor" posing as attorney subject to showing of prejudice if co-counsel duly admitted

People v Jacobs, 2005 WL 3452323, 2005 NY Slip Op 09574 [available here]

When James Jacobs stood trial under a 10 count indictment for robbery, assault and "related charges", he (quite reasonably) thought that both of the lawyers defending him were duly licensed attorneys. Turns out, one of his attorneys--the one who gave the opening statement, put on the defense witnesses, made the motion for a trial order of dismissal, and lodged various objections during the course of the trial--was not actually a lawyer, but rather a "law school graduate who has passed the bar but [wa]s masquerading as a duly licensed attorney". (People v Jacobs, __ NY3d __ [G.B. SMITH, J., dissenting].) Although the Court of Appeals has previously "held that when 'a defendant in a criminal proceeding has unwittingly represented by a layman masquerading as an attorney but in fact not licensed to practice law, his conviction must be set aside without regard to whether he was individually prejudiced by such representation" (Jacobs, __ NY3d at ___, quoting People v Felder47 NY2d 287, 291 [1979]), Chief Judge Kaye's majority opinion in Jacobs draws a distinction with this prior precedent and affirms Mr. Jacobs' conviction:

A defendant is entitled to the effective assistance of counsel. And because counsel 'can mean nothing less than a licensed attorney at law', a defendant who is represented only by a layperson has been completely deprived of counsel and is entitled to per se reversal of a resulting conviction. But when, as here, a defendant has been at all times represented by an admitted attorney, mere participation of a non-lawyer in the defense does not, without more, mandate reversal.

Rather, because the active participation of a licensed attorney throughout a defendant's trial should generally suffice to ensure that the defendant's rights are protected, a conviction should not be reversed in the absence of a showing of prejudice.

(Jacobs, __ NY3d at __. [citations omitted].)

Judge G.B. Smith dissented. While his dissenting opinion agrees for the most part with the majority's legal guideposts (i.e. that per se reversal is only appropriate in instances of total deprivation of counsel), he argues that the fact that an unlicensed layperson was solely responsible for representing defendant at key stages of the proceeding--including at opening statements, during the defense case, and while arguing for a trial order of dismissal--the deprivation of defendant's right to counsel was complete for those stages. From the dissent:

[A]t a bare minimum, the right to counsel means the right of a defendant to be represented by a licensed attorney at law during all phases of the criminal proceeding. Here, defendant was not afforded such protection during his opening statement and the presentation of his case. [...]

Because this case involves the absolute deprivation of counsel during those portions of the trial handled by an imposter, not representation, related to those portions of the trial conducted by a duly licensed counsel, that may or may not have been effective and meaningful, the Felder rule, that defendant is not required to demonstrate that he was prejudiced in terms of his representation, applies.

(Jacobs, __ NY3d at __ [G.B. SMITH, J., dissenting].)

If the licensed attorney in Jacobs was the supervisor of the unlicensed attorney, I would be comfortable with the majority's opinion, because under those facts one could be reasonably assured that the non-licensed impostor's actions at trial were being monitored (and presumably subject to the pre-approval of) a licensed attorney. But this was not the case in Jacobs--the licensed attorney and the non-licensed imposter were colleagues who split up the trial duties as a matter of efficiency, and no supervisory relationship existed. (Jacobs, __ NY3d at __.) Thus, one of the factual planks of the majority's reasoning--that "the active participation of a licensed attorney throughout a defendant's trial should generally suffice to ensure that the defendant's rights are protected"--does not really support the weight put upon it by the majority. For all we (or the Court) know, the licensed co-counsel was doing the crossword while the imposter was opening; or perhaps the only attorney at the defense table was putting the finishing touches on her closing argument while the imposter was making the motion for a trial order of dismissal.

That said, surely the factual scenario giving rise to the Jacobs decision is a rare one, so the majority's opinion should not have much fallout.

Nicole over at Sui Generis has her own take on Jacobs here. Sui Generis has also been added to the Blawgs list over at the left.

Just in time for the holidays . . .

People v Hendrie, __ AD3d __ [3d Dept 2005] [available here.]

Nothing puts you in the holiday spirit quite like the following fact pattern from a recent Third Department decision:

On the evening in question, defendant went to the residence of his former girlfriend, Helen LaPorte, ostensibly to deliver a Christmas gift for the LaPorte children. Upon arrival, however, defendant withdrew a sawed-off shotgun from the Christmas package, forced his way into the residence and thereafter shot and killed [his ex-girlfriend's new boyfriend].

(People v Hendrie, __ AD3d __.)

Well, I guess the holidays can be pretty stressful. Beyond the festive facts, the Court in Hendrie held that the mildly retarded defendant with an IQ of 55 was nevertheless competent to knowingly, voluntarily and intelligently waive his Miranda rights. From the decision:

Defendant's contention is that, as a result of his being mildly mentally retarded, he was incapable of fully comprehending his constitutional rights to remain silent and to the assistance of counsel. In support of this contention, defendant presented the testimony of a psychologist who . . .concluded that the defendant's IQ test score of 55 placed him at the low end of the mild mental retardation range. This expert witness further testified, as relevant hereto, that defendant lacked the capacity to understand the concepts embodied in the Miranda warnings given to him by the police.

Subnormal intelligence, in and of itself, does not require suppression of statements where it is established that a defendant had the ability to understand the basic concepts of the right to remain silent, the right to the assistance of counsel and the fact that any statement could be used against him or her. In our view, the record lacks any indicia that defendant failed to sufficiently comprehend the warnings . . . [t]he prosecution witnesses established that defendant was composed and relaxed and responded to questions in a normal and appropriate manner, at no time exhibiting any uncertainty or confusion.

(Hendrie, __ AD3d at __ [emphasis added].)

This is a troubling decision. The Third Department recognized in the decision that it was the People's burden to establish the defendant understood his rights, but the Court then treats the "lack of indicia" in the record that defendant did not understand the rights as sufficient to establish that he must have understood them. This is circular, and allows the People to establish understanding by negative inference. Further, it is hard to see how the defendant being "composed and relaxed" gives any inference of competence to understand the Miranda warnings. And how an "absence of indicia" and calm demeanor can somehow overcome an expert psychologist's opinion that the defendant was not able (by reason of mental retardation) to understand the warnings is beyond me.

Surprise decisions

People v Rucinski, 2005 NY Slip Op 09437 [available here]

Green v DeMarco, __ Misc 3d ___ [available here]

The Fourth Department is not handing down decisions from the November/December term until December 22. But Christmas came early for one appellant, as the Court posted one new decision a week or two early and reversed a defendant's conviction for Assault in the Second Degree (hat tip: Sui Generis). In People v Rucinksi, the assault second was charged under the section of the penal law that elevates the degree of assault if physical injury is inflicted "in the course of and in furtherance of the commission . . . of a felony", because defendant caused physical injury as a result of driving while intoxicated. The People argued that the felony DWI could serve as the underlying "felony" for purposes of charging assault in the second degree; the Fourth Department disagreed and held the Legislature has already "created a statutory framework for vehicular assaults and the heightened risks posed by intoxicated drivers [...], thereby rendering reliance upon general assault statutes inappropriate in cases involving vehicular assaults. [...] We thus conclude that a felony DWI may not serve as the underlying felony for assault in the second degree [...]." (People v Rucinski, 2005 WL 3313144.) This decision is a welcome and logical extension of the Fourth Department's prior decision in People v Snow, where the Court reached the same conclusion as to charging the similar provision for assault in the first degree. (See People v Snow, 138 AD2d 217.)

Today's other significant decision (Green v DeMarco) comes not from the Fourth Department, but from Supreme Court Justice Kenneth Fisher, who handed down a decision in an article 78 proceeding filed by the Monroe County District Attorney that alleged a Town Court judge's ruling that two "certification" documents offered in support of DWI prosecutions to establish that the breathalyzer was working correctly were testimonial hearsay and thus inadmissible absent an opportunity to cross-examine the lab techs from Albany who prepared the certifications. Got all that? This decision is thoughtful and well-written, and requires more attention than I have the energy or time to give it tonight. The nutshell for now: Justice Fisher disagreed with the Town Court, and held that the type of certifications at issue had "primary business purposes", were not "accusatory statements", and did not otherwise "implicate the core concerns of the Confrontation Clause as interpreted by Crawford." (Green v DeMarco, cite.) Besides the obvious Crawford issues raised by this decision, another is raised: can a Supreme Court Justice essentially sit as an appellate judge and second-guess a Town Court judge on an evidentiary issue that would otherwise not be appealable by the People? Is this a proper use of an article 78 proceeding? I do not know the answer, but will post at more length on this issue and the more obvious Crawford issues over the next few days.

Court of Appeals: Leftovers

People v Green, __ NY3d __, 2005 WL 3091106

In a somewhat counter-intuitive decision, the Court of Appeals holds in People v Green that, while a defendant may have a perfectly viable defense to a criminal charge, he is not necessarily entitled to have the jury instructed on that defense. Mr. Green was arrested and charged with robbery for forcibly taking a CD player from a man named Pabon--"Defendant snatched the player out of Pabon's hand, walked away and allegedly began listening to the 'Busta Rhymes' CD in the disc player." (People v Green, 2005 WL 3091106.) Mr. Green claimed the disc player and Busta CD was actually his, and had been taken from him earlier that day. As the Court notes in its decision, this can be a valid defense to robbery--"because the prosecution must prove beyond a reasonable doubt that the defendant intended to take property from someone with a superior right to possession, a good-faith but mistaken claim of right might defeat a robbery prosecution." (Id.) However, the error claimed on appeal was not that the trial court thwarted defendant's attempt to make out this defense; it was that the trial court erred in refusing to specifically charge the jury that defendant's good-faith belief that the CD player was his could be a defense to the robbery. The Court of Appeals held that the defendant was not entitled to an instruction:

[S]imply because a jury might be convinced by a claim-of-right argument, it does not follow that a claim-of-right charge, derived from a statutory defense limited to certain types of larceny, is also available to defendants in robbery prosecutions. Such an instruction by the court, over and above an instruction on the element of intent, unquestionably aids the defendant by underscoring one aspect of proof, or lack of proof. The Legislature did not provide that additional assistance where the defendant employs physical force.

(Id. [emphasis in original])

The Court notes the policy issue involved--"a claim-of-right charge in the robbery context encourages forcible self-help in pursuing property"--and that very practical consideration no doubt played a part in the outcome. (Id.) However, it leaves similarly-situated defendants in the somewhat awkward position of having a complete defense recognized by the Court of Appeals, but no way to specifically inform the jury of this defense. (Id. [leaving defendants "free to make the argument to the jury" but entitled to no charge].) Regardless of the policy involved, this seems a bit odd.

People v Carvajal, __ NY3d __, 2005 WL 3108185

As noted previously, this decision is a monster--a 17 page majority opinion followed by 23 pages of dissent. The majority's holding in a nutshell--a New York conviction for constructive possession of drugs can stand even though neither the defendant nor the drugs were in New York at the time of arrest, where the defendant engaged in conduct in New York sufficient to establish a conspiracy to possess the out-of-state drugs, because CPL 20.20[1][c] allows for "jurisdiction over an offense . . . based on a conspiracy occurring in New York to commit that offense." (People v Carvajal, 2005 WL 3108185.) The dissent argued that "the Constitution of the State of New and the laws of the State of New York do not permit a person to be found guilty of criminal possession of a controlled substance on a theory of constructive possession rather than actual possession where both the substance and the defendant are in California [...]." (Id.)

Police officer's subjective intent relevant for Miranda "interrogation" analysis?

People v Decker, 2005 NY Slip Op 08569, 2005 WL 3022014 [available here]

In a drug prosecution alleging that defendant was in constructive possession of certain drugs found in his apartment, the police asked defendant "which key on the key ring opened the door to defendant's apartment." (People v Decker, 2005 WL 3022014.) The Fourth Department in People v Decker held that this express questioning about the keys was not interrogation under a Miranda analysis because "[t]hat question was not designed to invoke an incriminating response." (Id.) This focus on "question design", i.e. what the officer subjectively believed about the purpose of the question, seems at odds with clear Court of Appeals precedent. In fact, it is hard to see how the Court of Appeals could be any more clear on this score:

What constitutes 'interrogation' of a suspect . . . is determined not by the subjective intent of the police, but by whether an objective observer with the same knowledge concerning the subject as the police had would conclude that the remark or conduct of the police was reasonably likely to elicit a response.

(People v Ferro, 63 NY2d 316, 319 [1984].)

It will be interesting to see if the Court of Appeals grants leave to review whether the Fourth Department has strayed too far in Decker, or whether the seeming irreconcilable holdings of Decker and Ferro are chalked up to loose language.

Unofficial stats (October 2005 term) and Best of the Rest

Here are my unofficial stats for the Fourth Department's October 2005 term:

Total criminal decisions: 91
Reversals / modifications / remands: 8

A busy term, and just a click fewer reversals than normal. Here are the other notable decisions from the term:

People v Brown: depraved indifference murder conviction supported by legally sufficient evidence where the "People presented evidence establishing that the bullet responsible for the victim's fatal injuries took a highly unusual route, entering the chest cavity of the victim through the forearm."

People v Narrod: trial court erred in allowing an "arson investigator to testify that he had ruled out accidental causes of the fire" because "the expert's testimony improperly invaded the jury's province." No reversal, though; the Court held the error harmless.

People v Albanna: trial court erred by refusing to charge Assault in the second degree as lesser included offense of Assault in the first degree.

People v Coleman: illegal to sentence defendant as persistent violent felony offender on Robbery 3rd conviction because "the crime of robbery in the third degree is not a violent offense."

People v Fortner & People v Semple: waiver of right to appeal does not encompass challenge to enhanced sentence where "defendant was not informed at the time of the plea that he must return for sentencing in order to avoid the imposition of an enhanced sentence."

People v Garrett: error to run definite sentence consecutive to indeterminate sentence.

People v Caito (or, note my exception, yet again): "Defendant failed to object to the court's ultimate Sandoval ruling and thus failed to preserve for our review his contention that the ruling constitutes an abuse of discretion."

I'll deal with the leftovers from the past month's Court of Appeals decisions over the next few days.

Court of Appeals: "straight line" method used to determine distance from school for purposes of drug prosecution

People v Robbins, ___ NY3d ___, 2005 WL 3108205

See what happens when you take a few days off for the holiday? Not only do I still have a leftover Court of Appeals decision from the November 21, 2005 packet to blog about, but the Appeals handed down two more significant criminal decisions the next day, November 22. One of those two new decisions, People v Carvajal, is a true monster involving a coast-to-coast drug conspiracy and a thorny multi-state "constructive possession" issue. For tonight, I will post on the simpler of the two decisions, People v Robbins (available here).

First, some brief background. New York (like most states) punishes those who sell drugs on or near school grounds more harshly than other dealers. In order to fall under the reach of the enhanced statute, the drugs must be sold within 1000 feet of a school zone. The question arises: how do you measure the 1000 feet? As the crow flies, or as the junky walks? The Appeals resolved that question in People v Robbins. Simple answer: the distance is measured by the "straight-line" method, or as the crow flies. From the opinion:

[T]he intent of the statute was to circumscribe a fixed geographical area, without regard to whether that area might contain obstacles around which people might have to detour. [...] Defendant's contrary reading would introduce uncertainty and open the statute to a charge of vagueness. Plainly, guilt under the statute cannot depend on whether a particular building in a person's path to a school happens to be open to the public or locked at the time of a drug sale. At a minimum, '[r]equiring speculation about pedestrian routes would create uncertainty in a statute which was meant to establish clear lines of demarcation.'"

People v Robinson, 2005 WL 3108205.)

No surprise here: given the choice between an interpretation of the statute that was unworkable (using the so-called "pedestrian method" to measure the distance) and one that provides concrete guidance (the "straight line" method), the Court of Appeals chose the workable solution. I would add more, but I'm a little late on this one, and the Volokh and Crimlaw are all over it (here and here).

Court of Appeals: 'intent to commit a crime therein' element of burglary not satisfied solely by intent to violate an order of protection

People v Lewis, ___ NY3d ___ [available here]

The Court of Appeals handed down two criminal decisions today, and each is interesting both for the majority holdings and for the lengthy dissents. For today, I'll deal with People v Lewis, which involved the interplay between the crimes of burglary (entering a dwelling with the intent to commit a crime therein) and criminal contempt (violating the terms of a valid order of protection). The background facts of Lewis are more than a little sad, but also completely typical:

Defendant was arrested three times in 2001 following incidents at complainant's apartment. In January 2001, he was arrested for damaging her property, and the Criminal Court of the City of New York issued an order of protection requiring him to stay away from her and from her home until April 25, 2004. Nevertheless, she allowed defendant to move into her apartment, in February 2001, after he lost his job.

In the early hours of July 24, 2001, defendant and complainant got into an argument at her apartment and defendant struck her over the head with a plate. She was taken to the hospital and received six stitches. Defendant was again arrested. On July 30, 2001, Criminal Court issued another order of protection. Again, she allowed defendant back into her apartment a few days after he got out of jail.

(People v Lewis, __ NY3d ___ [2005].)

After another falling out where defendant was ordered out of the victim's apartment, the defendant broke into the apartment. The Court picks up the narrative thread:

In the early hours of August 20, 2001, complainant returned to her apartment and found defendant there. She told him to get out and, when he refused and began swearing at her, she went downstairs to call the police from a pay phone. Defendant kicked her and continued to swear at her as she went down the steps. [...] Police arrested defendant a third time. With respect to the last incident, defendant was charged with burglary in the second degree and criminal contempt in the second degree.

(Id. at __.)

Defense counsel asked that the jury be charged that "the 'intent to commit a crime therein' element of burglary could be satisfied only if it were proven that, at the time of entry, defendant intended to commit some crime in addition to unlawful entry." (Id.at __.) The trial court refused to give the charge.

During deliberations, the jurors sent out a note asking "about the relevance of defendant's criminal contempt to the 'intent to commit a crime therein' element of burglary." (Id. at __.) Defense counsel suggested the trial court tell the jury "'if it is your general question as to whether . . . the crime constitut[ing] contempt can be the basis for a burglary charge, the answer is yes.'" (Id at __.) The trial court gave the charge as requested by defense counsel, and the jury "quickly reached a verdict finding defendant guilty of second-degree burglary." (Id at __.)

Defendant raised two arguments before the Appeals: 1) that the trial court should not have instructed the jury that the crime of "criminal contempt" could be the sole crime defendant intended to commit upon entry for purposes of establishing burglary in the second degree, and 2) the evidence was legally insufficient to support the burglary in the second degree conviction. In answering the second argument, the Court noted "[u]nlawful entry cannot itself be used as the sole predicate crime in the 'intent to commit a crime therein' element of burglary. If that were not the case, every violation of a do-not-enter provision of an order of protection would become a burglary the instant defendant knowingly entered upon the banned premises." (Id.)

Good for defendant so far--if the "criminal contempt" cannot be the "sole predicate crime" for purposes of establishing the "intent to commit a crime therein" element of burglary, then the trial court's supplemental charge to the jury instructing them in a manner exactly inapposite to the Court's holding (i.e. that the criminal contempt could be the only crime defendant intending to commit when he entered the complainant's apartment) was reversible error. Not quite, says the majority: true enough, the charge was an erroneous statement of law--but it was a mis-statement that defense counsel articulated and suggested the trial court use. Therefore, any issue the defendant may have had about the propriety of the charge was waived. (Id. ("defense counsel's formulation of the supplementary instruction went far beyond mere failure to protest and constitutes a forfeiture. Indeed, the court fully adopted the defendant's language. He cannot now be hear to complain [...].")

Judge R.S. Smith dissented, and would have reversed based on the supplemental jury charge. In Judge Smith's view, "Defendant asked for a correct instruction to the effect that the People must show more than unlawful entry. The trial court refused the instruction, and later, in response to a question, told the jury the exact opposite. I do not believe defendant forfeited appellate review of this error, and I therefore dissent." (Id. at __.) From the dissent:

A waiver or forfeiture may occur when a defendant requests or endorses a ruling of which he later complains. The reason for this rule is that a defendant should not be able to obtain a reversal based on an error for which he was responsible. But defendant did not lead the trial court into error here--the court had already stated unequivocally its mistaken understanding of the law, and the defendant's attempt to talk the court out of it had already failed. Thus the governing rule here is the one the majority states, but does not apply: 'an attorney need not repeatedly protest a court's clear ruling.'

Of course it would have been a good idea for defendant's counsel, in his comment on how to respond to the jury note, to err on the side of caution by restating the position he had already argued. [...] But if he had taken this more prudent course, defense counsel would only have been reciting what everyone in the courtroom knew and the record made clear already. I cannot join the majority in holding that he forfeited his client's right by failing to perform this ritual.

(Id at __.)

The substantive holding of Lewis is a good one--a defendant cannot be convicted for burglary in the second degree if the only crime he intended to commit by entering a building is violating an order of protection not to go in that building. But the procedural holding of the majority--that review of the "jury charge" issue was waived because, after requesting the proper charge and being denied, defense counsel tried to make the best of a bad ruling and suggested language for the court to use in giving the erroneous charge--is a continuation of the trend of requiring strict and exacting preservation of issues for appellate review. The dissent may not think that such "rituals" are necessary--but given the majority's holding in Lewis, it is clear that the ritual must be followed if defense counsel wants to be sure of preserving an issue for review.

Appellate prosecutor's assertion that stenographic record "may well" be wrong sufficient to raise factual dispute requiring remand for hearing?

People v Linnan, 2005 NY Slip Op 08380, 2005 WL 3017743 [available here]

In another decision dealing with jury selection error, the Fourth Department in People v Linnan remanded the case to the trial court to determine if a juror who had expressed doubt about her ability to be fair and impartial was sufficiently rehabilitated later in the voir dire process. The interesting thing about Linnan is not the underlying legal issue; as I've noted before, a trial court's refusal to strike a juror for cause who has made statements raising a doubt as to her ability to be fair and impartial and who gives less than unequivocal assurances about her ability to be fair and impartial is a frequent ground for reversal. Rather, Linnan is strange because it appears from the decision that the stenographic record from the lower court establishes that the the juror in question did not give any type of expurgatory oath, i.e. the juror made statements casting doubt on her ability to be fair and impartial and never subsequently gave unequivocal assurances of such an ability. From the Court's decision:

The transcript of voir dire establishes that, when defense counsel asked the prospective juror in question whether she could be 'objective' after viewing graphic photographs of the victim, she responded, 'Not being subjected to that, maybe. I'm not certain how I would respond.' Defense counsel then asked her, 'Are you saying [that] if you did look at the pictures, you can't say whether you would be fair and impartial after looking at them?' She responded, 'That's correct.' Seeking clarification, defense counsel asked, 'Based on the graphic nature, not necessarily on what [the People might prove or fail to prove]?" The prospective juror responded, 'Right.'

On its face, the record discloses no follow-up questioning of that prospective juror and, indeed, it appears from the record that defense counsel immediately turned his attention to another prospective juror who was not subsequently challenged for cause and who said she thought she could 'maintain [her] objectivity' even after viewing 'real graphic photographs'.

(People v Linnan, 2005 WL 3017743 [brackets in original].)

Case closed, right? The juror said she could not be fair and impartial, and the stenographic record reveals that juror never later said she could be fair and impartial in spite of her misgivings. Conviction reversed. Right?

Well, not quite. In their brief, the People "assert[ed] that the exchange attributed by the transcript to the prospective juror not challenged for cause 'may well have' involved the prospective juror challenged for cause, and that the prospective juror challenged for cause may thereby have rehabilitated herself as an impartial juror." (Id.) If the People had any kind of proof or could point to any ambiguity from the trial record to support that bald assertion, the Court did not mention it in the decision. So what we are left with is a transcript that is clear that the juror in question never gave the required unequivocal assurances, and a prosecutor who asserts in an appellate brief that maybe the stenographic record is wrong. That can't possibly be enough to raise a legitimate "factual dispute" that would require a remand for a hearing instead of a straight reversal, can it? Ummm . . . from the Court's decision:

Given the factual dispute concerning which prospective juror engaged in the subsequent exchange with defense counsel, we are unable to determine whether the prospective juror challenged for cause, despite having 'cast serious doubt on [her] ability to render a fair verdict under the proper legal standards', thereafter gave the requisite unequivocal assurances that her prior state of mind would not influence her verdict and that she could be fair and impartial. We therefore hold the case, reserve decision and remit the matter to County Court for a reconstruction hearing to determine which prospective juror made the expurgatory statements.

(Id. at __.)

So even if the record is relatively clear, a "factual dispute" can apparently be created by a prosecutor's conclusory assertions contained in a legal brief that the record might not really say what it appears to say.

Court of Appeals: one big mistake can ineffective assistance of counsel make

People v Turner, ___ NY3d ____ [available here]

Reversals based on ineffective assistance of trial counsel are exceedingly rare, and require an extraordinary showing of incompetence on the part of trial counsel. Ordinarily, the totality of the circumstances control--if on the whole, trial counsel did not stink up the joint too bad, mistakes made along the way will be overlooked and not constitute ineffective assistance. (See People v Benevento, 91 NY2d 708, 712 [1998] [Constitution "guarantees the accused a fair trial, not necessarily a perfect one"].) So it was a bit of a surprise to read the opening paragraph of a decision handed down today by the Court of Appeals:

Very rarely, a single lapse by otherwise competent counsel compels the conclusion that a defendant was deprived of his constitutional right to effective legal representation. This is such a rare case, in which both defendant's trial and appellate lawyers failed to perceive that a statute of limitations defense would have prevented their client's manslaughter conviction.

(Turner, ___ NY3d at ___ [emphasis added].)

What makes the Turner decision so remarkable is that this is a reversal based on ineffective assistance of counsel, once removed--the Court held "appellate counsel was ineffective for failing to argue that trial counsel was ineffective." (Id.) From the Court's decision:

A reasonable defense lawyer at the time of defendant's trial might have doubted that the statute of limitations argument was a clear winner--but no reasonable defense lawyer could have found it so weak as to be not worth raising. Yet defendant's trial counsel did not raise it. Trial counsel's error should have been apparent to any reasonable appellate counsel, and should have prompted that counsel to make an ineffective assistance argument.

Really, there are two important parts of the Turner decision. First, the idea that one glaring error in an otherwise competent defense can give rise to a valid ineffective assistance argument is a welcome loosening of New York's caselaw in this area. Second, the Court also holds that a single error by appellate counsel--failing to recognize and raise an ineffective assistance argument--can itself constitute ineffective assistance of appellate counsel; this is likewise breaking somewhat new ground in the ineffective assistance area. Both of these parts of Turner put some teeth back into the ineffective assistance caselaw, and could potentially give future defendants one more bite at the apple (i.e. reversal might be possible even where 1) trial counsel fails to recognize a major substantive error at trial, and 2) appellate counsel fails to recognize that trial counsel's failure gives rise to a meritorious appellate issue).

Only time will tell if Turner actually has an impact on the number of "ineffective assistance" reversals. Indeed, the decision takes great pains to point out, again and again, what a "rare" factual scenario Turner presents, and in the course of the decision points out the fairly egregrious mistakes defense counsel can make in isolation and fail to crest the high threshold for "ineffective assistance" relief:

[W]e reaffirm today, that such errors as overlooking a useful piece of evidence, or failing to take maximum advantage of a Rosario violation, do not in themselves render counsel constitutionally ineffective where his or her overall performance is adequate.

So Turner leaves the bar for ineffective claims fairly high--trial and appellate counsel still have to completely miss a "clear cut and potentially dispositive" issue. (Turner, __ NY3d at ___.) However, any decision that could potentially put some bite back into the "ineffective assistance" caselaw is a welcome and unexpected development.

Fourth Department receptive to "rolling start" argument for Miranda violation?

People v Caballero, 2005 WL 3018031, 2005 NY Slip Op 08393

A suspect in a sexual abuse investigation was taken into custody and transported to police headquarters, where he was deposited in an "interview" room to await questioning. Two police investigators started talking with the suspect at 12:20 p.m. Miranda warnings were not given until 12:55 p.m. One of the interrogators later explained at the suppression hearing that the point of the pre-Miranda "general conversation" was "just to let [the suspect] get comfortable with me and comfortable with [the other investigator], . . . so he knew that both of us were decent-type guys, low key. You know what I mean? Just general easy conversation." (People v Caballero, Appellant's Brief at 10.) After Miranda warnings, the suspect gave a written statement implicating himself, and was convicted after trial of the alleged counts of sex abuse.

On appeal (People v Caballero, 2005 WL 3018031 [available here]), it was argued that the 35 minutes ofpre-Miranda conversation amounted to interrogation, and should have been preceded by Miranda warnings. As appellant explained, "the type of 'rolling start' employed by the Investigators, in which Mr. Caballero was softened up for further questioning with pre-Miranda tactics designed to get Mr. Caballero to let his guard down and speak freely with the investigators, was a 'technique of persuasion' amounting to interrogation." (Id. [citing Rhode Island v Innis, 446 US 291,299 [1980].)

While the Fourth Department did not reverse on this issue, its decision in Caballero is notable for what is does not say--the Court disposed of the issue outlined above by holding "[d]efendant failed to preserve for our review his contention that his pre-Miranda conversation with the police constituted custodial interrogation by failing to raise that specific contention in his motion papers or at the hearing. We decline to exercise our review that contention as a matter of discretion in the interest of justice." (People v Caballero, 2005 WL 301803].) That's it. Conspicuously absent is the next sentence that often follows the Court's observation that an issue is not preserved, i.e. "If we were to reach this issue, we would find it without merit," or some such language. The absence of that next sentence in Caballero suggests that, if the issue is properly preserved, the Court may very well find that the type of "rolling start" to interrogation employed by the investigators in Caballero is interrogation and must be preceded by Miranda warnings. Indeed, the Justices seemed legitimately interested in the issue at oral argument and seemed troubled by the idea that police officers can engage in "rapport building" for an extensive amount of time prior to giving Miranda warnings and then shift to questions about a specific crime.

This issue is potentially a good one for defendants if for no other reason that the tactic at issue--police making "general easy conversation" with a suspect before giving Miranda warnings--is so common. Assuming the appropriate facts are present (i.e. police chatting up a suspect prior to Miranda warnings), criminal defense trial attorneys would do well to add this argument to their suppression motion papers.

"Drugs in a room" presumption not triggered where drugs found at bottom of stairs leading to apartment

People v Edwards, 2005 NY Slip Op 08571, 2005 WL 3022096

Under Penal Law section 220.25, "the presence of a controlled substance 'in open view in a room, other than a public place,' is presumptive evidence of knowing possession thereof by any person in 'close proximity to such controlled substance at the time such controlled substance was found.'" (People v Edwards, 2005 NY Slip Op 08571, 2005 WL 3022096 [available here].) Essentially, if there are many people in an apartment, and there is a big pile of cocaine on the table in plain view, and the cops bust in, everyone in the room is presumed to have possessed the cocaine. The question confronted in Edwards deals with the scope of the "drugs in a room" presumption; the facts are briefly stated in the Court's opinion:

Here, the police executed a search warrant in an upstairs apartment where defendant was found. After using a battering ram to access the locked door from the porch to the stairway leading to the apartment, the police observed a baggie containing a white rock-like substance on the first step of the stairway. [...] The police entered the apartment through an open door at the top of the stairway and found defendant and three children in the rear of the apartment.

(Id.)
On those facts, the Fourth Department (reasonably enough) found the "drugs in a room" presumption inapplicable: "on these facts, the controlled substance was not 'in open view in a room' and that, in any event, defendant not in 'close proximity to such controlled substance at the time such controlled substance was found.'" (Id.) The Court went further, and found the error in charging the jury on the "drugs in a room" presumption could not be harmless because "there is no way to discern whether the jury's verdict 'was predicated on the illegally charged presumption or on a finding of constructive possession irrespective of the presumption.'" (Id.)

It warms my heart when an appeals court gets it right on facts like this; not unlike the recent Court of Appeals case in People v Gomez that held a suspect's consent to search his car did not imply consent to destroy the car with a crowbar (post here), the result in Edwards comports with logic and common sense, so much so that one wonders how the trial court got it wrong in the first place.

Pretrial denial of right to counsel still subject to harmless error analysis

People v Lott, 2005 NY Slip Op 08490, 2005 WL 3020529

On the heels of People v Wardlaw, the Fourth Department this term reasserted the holding that the denial of a defendant's right to counsel at suppression is subject to constitutional harmless error analysis. You can read my previous posts on Wardlaw here, here and here. In a nutshell: in Wardlaw, the Fourth Department held (for the first time in New York) that the denial of a defendant's right to counsel could be subject to harmless error analysis if the deprivation occurred at a pretrial stage. The Court of Appeals had previously given some hints of tracking in that direction, but had never gone as far as the Fourth did in Wardlaw. The Court of Appeals has granted leave to hear Wardlaw, so we will see soon enough if the Appeals agree with Wardlaw, but in the meantime the Fourth Department, by this term's decision in People v Lott shows no sign of retreating.

Mr. Lott ended up luckier than Mr. Wardlaw--the Court in Lott held, after applying the harmless error analysis, that the deprivation of Mr. Lott's right to counsel was not harmless because the defendant (while unrepresented) filed a notice of alibi that was at odds with the proof at trial. This was enough for the Court to conclude the deprivation of Mr. Lott's right to counsel was not harmless: "the defense was impaired to a significant extent by the pretrial denial of the right to counsel, particularly as a result of defendant's service of the pro se notice of alibi. We thus conclude that there is a reasonable possibility that the error contributed to defendant's conviction." (People v Lott, 2005 WL 3020529.)

The Lott decision illustrates why the Fourth Department's rule in Wardlaw is such a potentially damaging one--it comes dangerously close to establishing a counter-intuitive standard, i.e. if the defendant is overwhelmingly guilty, the trial court may deny that defendant an attorney at any pretrial stage and have the error be excused as harmless. But are not the most palpably guilty those who most need an attorney? There is a reason that some fundamental rights have been traditionally pushed beyond the reach of the harmless error doctrine. But as long as Wardlaw stands, the right to counsel (at least at a pretrial stage) will not be protected.

Decision Day: October, 2005 Term

There are some interesting decisions in the Fourth Department's October, 2005 packet. I am still sifting through the opinions, and will post on the more interesting ones over the next few days. But for tonight, rest assured that the trend of reversals based on error during jury selection continues this term with People v Harris (KA 03-00404,[available here). In Harris, a prospective juror "indicated that her assessment of defendant's guilt would be influenced by the number of complainants, thus raising an issue concerning her ability to be fair and impartial." (Id.) At that point, it was "necessary to obtain her unequivocal assurance that her prior state of mind would not influence the verdict and that she would render an impartial verdict based solely on the evidence." (Id.) The prospective juror never gave such an assurance, and therefore the Court held "the denial of defendant's challenge for cause thus constitutes reversible error inasmuch as defendant had exhausted all of his peremptory challenges before the completion of jury selection." (Id.)

Another interesting wrinkle from Harris--the Court also reversed "based on the court's improper curtailment of defense counsel's questioning of prospective jurors with respect to their ability to follow the court's instructions on the limited use of Molineux evidence." (Id.) This is surprising, only because, as the Court notes, a trial court enjoys "broad discretion in controlling and restricting the scope of voir dire," and appellate courts usually do not second-guess an exercise of discretion. (Id.) That the Fourth Department saw fit in this case to set an outer boundary on a trial judge's discretion during voir dire is a welcome development.

Court of Appeals: 'expurgatory oath' sufficient to cure potential juror's previous ambiguous statements on ability to be fair and impartial

People v Shulman, 2005 NY Slip Op 07827

The other decision of note handed down this week by the Court of Appeals is People v Shulman (2005 WL 2759199, 2005 NY Slip Op 07827 [available here]). The opinion (authored by Judge Read) is a big'un, as is to be expected in a death-penalty case. Besides being notable for one of the truly gruesome recitations of fact to be found in a published criminal decision (severed limbs figure prominently), the opinion does not break much new legal ground. In fact, beyond clarifying the first-degree "similar fashion" murder statute, the most interesting aspect of the opinion deals with Arnold-type jury selection issues.

Defendant argued on appeal that two prospective jurors should have been struck for cause because their responses during voir dire raised a doubt as to their ability to be fair and impartial. The first potential juror (a former correction's officer) wrote in his jury questionnaire that "life without parole" meant "'3 hots and a cot, free medical, $50[,]000 a year wasted." The second potential juror "answered questions probing her ability to put her opinion [regarding defendant's guilt] aside by stating that 'I think I can' or that she would 'try.'" (People v Shulman, 2005 WL 2759199 at *__ [2005].) Both jurors subsequently recited the 'expurgatory oath', i.e. each juror "assured the trial court and the parties that [they] could be impartial." (Id.) This was enough for the Judge Read and the unanimous Court:

As we have noted, words like 'think or try' are 'not . . . talismanic word[s] that automatically make[] a statement equivocal. [The juror's] other answers dispelled any doubt about her ability to deliberate impartially. [...] In light of that response as well as her many other assurances of impartiality, the trial court had ample basis for rejecting defendant's for cause challenge to [the juror].

(Id.)

Again, this opinion does not break any new ground, but it does reinforce an important concept for trial defense attorneys to keep in mind during jury voir dire--often, it is a juror's final statement on his or her ability to be impartial that controls. No matter how much a juror equivocates, an appellate court is probably not going to disturb a trial judge's denial of a 'for cause' challenge if the potential juror finishes her colloquy by agreeing that she can be fair and impartial. Prosecutors and trial judges are increasingly savvy on this score (perhaps because the Fourth Department continues to hand down reversals based on failure to elicit an unequivocal assurance that a juror can be fair and impartial (see my previous posts here and here.), and I think it is almost inevitable that this 'fertile ground' for reversal will eventually dry up.

Court of Appeals: consent to "search" car does not equal consent to "destroy car with crowbar"

People v Gomez, 2005 WL 2759218, 2005 NY Slip Op 07828

In a decision handed down yesterday, the Court of Appeals holds that a police officer may not "conduct a destructive search of an automobile based on a suspect's general consent to search." (People v Gomez, 2005 WL 2759218, 2005 NY Slip Op 07828 [available here].) The police in Gomez pulled over defendant because his car had an excessive amount of window tinting. After stopping the car, the officers asked defendant if they could search the car; defendant said sure (apparently forgetting that he was in the process of transporting 1 1/2 pounds of cocaine). The Court described the search:

[The officer] immediately went to the rear seat, unlocked it and pulled it back. He observed gray 'non-factory' carpet in the location above the area where he earlier spotted fresh undercoating. He then pulled up the glued carpeting and discovered a cut in the floorboard. [The officer] used his pocket knife to twist open the sheet metal. After struggling to reach what he thought was a plastic bag, [the Officer] returned to his cruiser and retrieved a crowbar, which he used to pry open part of the gas tank. The officers ultimately recovered seven bags of cocaine weighing approximately 1 1/2 pounds from the compartment found in the gas tank.

(Id.)

After noting the Supreme Court's standard for "'measuring the scope of a suspect's consent under the Fourth Amendment'"--i.e. "what would the typical reasonable person have understood by the exchange between the officer and the suspect," (See Florida v Jimeno, 500 US 248, 251 [1991]), the Court of Appeals found that the officers' actions in Gomez exceeded defendant's consent as a matter of law:

In the absence of other circumstances indicating that defendant authorized the actions taken by police, a general consent to search alone cannot justify a seizure that impairs the structural integrity of a vehicle or that results in the vehicle being returned in a materially different manner than it was found. A reasonable person would not have understood the officer's request to search to include prying open a hole in the floorboard and gas tank with a crowbar. Here, the officer clearly crossed the line when he took his action without first obtaining defendant's specific consent.

(Id.)

This is a welcome, common-sense outcome--it seems relatively obvious that a motorist who gives the police consent to search his vehicle does not imply consent to the police ripping apart his car with a crowbar.

However, Judge Read dissents, and takes the majority for task for setting out a "bright line" rule--according to Judge Read, "the majority is just wrong to conclude that, as a matter of Fourth Amendment principles, a search resulting in 'damage' is per se outside the scope of a general consent." (Id.) Judge Read would shift the focus, "[s]o, just as 'it was objectively reasonable for the police to conclude' in Jimeno that they had consent to search any containers in the car 'which might bear drugs', it was objectively reasonable in this case for [the officer] to believe that he had permission to search any area of defendant's car in which narcotics might be secreted." (Id.)

The dissent's logic can be taken to some absurd extremes--what if the officer thought the cocaine might be in the tires? Could he slash the tires based on a defendant's general consent to search? Can officers cut through upholstery if they believe the drugs might be secreted in the car's seat cushions? Drugs can be hidden anywhere in a car--under the dissent's logic, it would apparently be acceptable for the police, acting under a general consent to search, to disassemble the entire car and leave it up on blocks on the side of the road when the search was done. The dissent doesn't answer such hypotheticals, but it does raise the specter of 9/11, arguing that the majority's standard will "hamstring police officers who reasonably suspect that a vehicle contains a hidden compartment--an alteration with few, if any, innocent purposes--which might conceal far more lethal cargo than narcotics." (Id., citing the 9/11 Commission Report.)

For its part, the majority counters that "[W]e cannot agree with the dissent that Fourth Amendment jurisprudence must strive to avoid rules." (Id.)

Unofficial stats: September 2005 term.

Here are my unofficial stats for the September 2005 term, based on the criminal decisions posted at the Fourth Department's web site:

Total criminal decisions: 77

Reversals / Modifications: 11

I've collected the noteworthy reversals from the September term in a previous post (available here.)

The October term of Court is underway, with decisions for the October term coming down November 10, 2005.

Best of the Rest (September 2005 term)

As previously noted, the September term of the Fourth Department was not a great one for criminal decisions. Here are the best of the rest, in no particular order:

People v Rodriguez (or, note my exception, again): the Fourth refused to reach the merits of defendant's Sandoval issue because "[b]y failing to object to the court's ultimate Sandoval ruling, defendant failed to preserve for our review his contention that the ruling constitutes an abuse of discretion." (People v Rodriguez, 2005 WL 2404602, 2005 NY Slip Op 07179 [decision available here].) I think this "ultimate objection" requirement is unnecessary for preservation, and revives in fact if not in verbiage the old technical "exception" requirement for preservation. Alas, the Fourth Department still does not agree. See my previous post on the subject here.

People v Mayo: defendant's guilty plea to SCI vacated because "[w]here, as here, a defendant is charged with a class A felony, the defendant cannot validly waive indictment or consent to be prosecuted by a superior court information." (People v Mayo, 2005 WL 2404043, 2005 NY Slip Op 07082 [decision available here].)

People v Chambers: duration of an order of protection improper because the trial court "failed to take into account the jail time credit to which he was entitled." (People v Chambers, 801 NYS2d 171 [decision available here].) The issue was not preserved, but the Fourth Department reached it in the interests of justice.

People v Davis: a rare reduction of defendant's sentence as harsh and excessive. (See People v Davis, 2005 WL 2404142, 2005 NY Slip Op 07110 [decision available here].)

People v Cooke & People v Robinson: vacating defendants' sentences in the interest of justice: "because restitution was not part of the plea agreement, the court should have afforded defendant the opportunity to withdraw his plea before ordering him to pay restitution." (People v Robinson, 2005 WL 2404422, 2005 NY Slip Op 07136 [decision available here].)

The decision in People v Kilgore deserves somewhat lengthier treatment. The majority reversed defendant's drug possession conviction, finding that defendant's "motion to suppress physical evidence by the police following a warrantless entry into his apartment" should have been granted because "exigent circumstances" did not exist to justify the warrantless entry. (See People v Kilgore, 2005 WL 2403327, 2005 NY Slip Op 07019 [decision available here].) The Court set out the relevant factors to consider:

'Although not to be taken as a rigid formula, the following factors should be considered in determining whether exigent circumstances exist: (1) the gravity or violent nature of the offense; (2) whether there is a reason to believe the suspect is armed; (3) whether there is a clear showing of probable cause; (4) whether there is a strong reason to believe the subject is in the premises being entered; (5) the likelihood the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry.'

(Id [citing the relevant factors from People v Burr, 124 AD2d 5.].)

The majority found no exigent circumstances existed because "[a]lthough the alleged victim herein reported to the police that she had been raped, there was no indication that defendant was armed. Additionally, the alleged victim told the police that she left defendant's apartment after defendant had fallen asleep, and thus there was no suggestion that defendant would have escaped if not swiftly apprehended." (Id.)

Justice Hayes dissented, and would have applied the Burrfactors differently in finding exigent circumstances existed; from the dissent:

A violent offense had been reported, i.e., a rape, and the police had probable cause to believe that defendant had committed the offense. The police had 'strong reason to believe' that defendant was inside the apartment, based on the statement of the victim that her attacker was asleep when she left the apartment and the sounds heard by one of the officers coming from inside the apartment. Although there was no specific evidence that defendant would attempt to escape, 'there [also] is no indication that he was not seeking to escape.' The police entered the apartment peacefully through the apartment door, which was left ajar. Thus, in my view, the court properly refused to suppress the physical evidence seized from defendant's apartment.

(Id. at ___ [HAYES, J., dissenting].)

It is hard to fault either the majority or dissent--each picked those Burr factors that supported their respective outcomes and downplayed the others. My hunch is that the fact that this was a drug possession conviction--and not a conviction for the reported rape--made the difference for the majority.

Court of Appeals to review whether deprivation of right to counsel at suppression subject to harmless error analysis

The Court of Appeals has granted leave to review the Fourth Department's decision in People v Wardlaw (18 AD3d 106), where the Fourth Department held that deprivation of a defendant's right to counsel at a suppression hearing was subject to harmless error analysis. At the time the decision was handed down, I noted that it seemed the Fourth Department was getting a little ahead of itself, because the Court of Appeals had previously ruled that deprivation of the right to counsel was fundamental error not subject to harmless error analysis regardless of when the deprivation occurs. See my previous posts on Wardlaw here and here. I am glad to see the Court of Appeals has decided to take a look at the issue.

The Court of Appeals will also review the Fourth Department's decision in People v Pacer (796 NYS2d 787), where the Fourth found that an affidavit of mailing was "testimonial" under Crawford v Washington and thus not admissible unless the declarant is subject to cross-examination. See my previous post on Pacer here.

Jeffrey Fisher outline for Crawford.

Jeffrey Fisher (the attorney who briefed and argued Crawford v Washington [previous Crawford-related posts here, here, here, and here,]) has a periodically-updated outline of post-Crawford developments. You can get the outline here. Very useful. I've added a permanent link to the outline over to the left. (Hat tip: Confrontation Blog.)

This term's Arnold reversal

People v Mateo, 2005 NY Slip Op 07170

What would a term of the Fourth Department be without an Arnold-based reversal for error during jury selection? This packet the honor goes to People v Mateo (2005 WL 2404586, 2005 NY Slip Op 07170 [decision available here]) where "County Court erred in denying [defendant's] challenge for cause to a prospective juror who gave equivocal answers during voir dire and thus failed to establish her ability to be impartial." (Mateo, 2005 WL 2404586, *1.) The facts, from the decision:

When asked whether the fact that her husband was a correction officer and her son a police officer would impair her ability to be fair, she replied that she 'would hope not,' and she acknowledged that there was a possibility that she would tend to credit the testimony of correction officers over that of other witnesses. In addition, she stated that it would be 'difficult' for her to be fair and the only 'thing [she] could say [she'd] try to be fair.' Moreover, the prospective juror was twice asked whether she would feel comfortable being judged by someone with her mindset before she gave an affirmative response to that question.

(Id. [brackets in original].)

Given those facts, the Fourth reversed: "[t]he statements of the prospective juror 'raise[d] a serious doubt regarding [her] ability to be impartial,' which mandated that she be excused unless she 'state[d] unequivocally on the record that . . . she [could] be fair and impartial', and she did not do so." (Id. [brackets in original] [citations omitted].)

The Court of Appeals decision in Arnold (followed by the Fourth Department in Mateo) is a criminal appellate lawyer's best friend. The rule of Arnold is simple: "Prospective jurors who make statements that cause serious doubt on their ability to render an impartial verdict, and who have given less-than-equivocal assurances of impartiality, must be excused." (People v Arnold, 96 NY2d 358, 363 [2001] [decision available here].) If a juror falls short of giving unequivocal assurances--saying "I think so" or "I hope so" when asked if he or she can be impartial, for example--the challenge for cause must be granted, or reversal is required, without resort to any kind of harmless error analysis. Most trial judges are aware of Arnold by now, so the era of numerous Arnold reversals may well come to an end in the near future. But for now, jury selection/Arnold issues remain the only reliably successful issues for New York criminal defendants.

Of course, an Arnold issue must be preserved by defense counsel exhausting all peremptory challenges. (See e.g., People v Jones, 11 AD3d 902, 903 [4th Dept 2004].)

Another "depraved" decision

People v Baker, 2005 NY Slip Op 07226

In another decision dealing with the border between "intentional" and "depraved indifference" murder in the wake of Gonzalez and Payne, the Fourth Department affirmed defendant's "depraved indifference" murder conviction in People v Baker, finding that there was a reasonable view of the evidence to conclude that defendant recklessly caused the victim's death by shooting him in the chest. (See People v Baker, 2005 WL 2404847, 2005 NY Slip Op 07226 [decision available here].)

The facts, as summarized in the Court's opinion:

The record establishes that defendant approached the two victims and shot the first victim in the chest, which eventually caused the death of that victim, and defendant then shot the second victim. The first victim ran after being shot, but defendant did not follow him. Instead, defendant approached the second victim, stood over him, and continued to shoot him from inches away, pulling the trigger of his weapon while aiming it at the second victim even after there was no remaining ammunition.

(Id.)

Given those facts, the Court held that "a rational jury could have had a reasonable doubt with respect to whether defendant's acts were 'specifically designed to cause the death of the [first] victim.'" (Id.) I'll buy that--it seems from the facts that the second victim was the real target of defendant's aggression, and the first victim was shot so defendant could get to the second victim. But acknowledging that defendant may not have intended to kill the first victim does not necessarily establish that defendant acted "recklessly" in shooting the first victim--indeed, from the facts of the decision it seems as if defendant intentionally shot the first victim in order to get to the second victim. In that case, manslaughter in the first degree would seem to be a proper conviction--defendant intended to cause the first victim serious physical injury by shooting him in the chest, and the victim ultimately died--but is the reckless mens rea required for "depraved indifference" murder established?

The Fourth Department obviously thought so in Baker, although in another decision from this packet dealing with the same issue, the Court found legally insufficient facts to support a defendant's "depraved indifference" murder conviction where defendant stabbed his victim once in the chest. (See People v Lawhorn, 2005 WL 2403844, 2005 NY Slip Op 07058 [available here].) See my previous posts on Lawhorn here and here. Perhaps the fact that there was more than one victim in Baker and only one victim in Lawhorn was a factor in the Fourth Department's distinction between the two cases. (See Lawhorn [stressing that a "'one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder'" [citations omitted].) But certainly some tension exists between the Lawhorn and Baker decisions (i.e. one shot in the chest can support finding of "reckless" killing [Baker] but one stab wound in chest cannot support "reckless" killing [Lawhorn]). Perhaps that is why Justice Pine wrote a separate concurring opinion in Baker that would have affirmed the depraved indifference conviction on the much more narrow preservation ground. (See Baker, 2005 NY Slip Op 07226.) The implication of Justice Pine's concurrence is that she would not have found the evidence legally sufficient to support the depraved indifference count (presumably reasoning that, if a single stab wound to the chest was sufficient to rule out a depraved indifference murder conviction under Lawhorn, a single gunshot to the chest should likewise render Baker's depraved indifference murder conviction infirm), but would not have reached the issue because it was not preserved for review.

For what it's worth, I think the facts of Baker could support both a conviction for manslaughter in the first degree and depraved indifference murder--defendant could have intended to cause serious physical injury to the victim (thus satisfying the mens rea requirement for manslaughter 1st) and simultaneously been aware of and ignored that by shooting the victim he was creating a substantial and unjustified risk of death (thus satisfying the mens rea requirement for depraved indifference murder). In fact, I had an argument with my co-workers on this point for the better part of two hours this morning. I will post at length soon why I think I am right. But for now, the arguably inconsistent results from the Fourth Department in Lawhorn and Baker illustrate how the Appellate Divisions are struggling to set the boundaries between "depraved indifference" and "intentional" murder after Gonzalez and Payne.