AD4: trial court's failure to grant defendant short adjournment to produce alibi witness is reversible error

The Fourth Department handed down decisions for it's April term today, with some interesting criminal decisions in the mix. Starting the review of the April packet is . . .

People v Walker, __ AD3d __ [available here]

The trial court in Walker refused to grant the defendant a short adjournment to produce an alibi witness when his intended alibi witness became unavailable at the last minute due to a serious illness that required hospitalization. The Fourth Department, after noting that the "'more liberal policy in favor of granting a short adjournment . . . when the delay is requested in order to insure a fundamental right', e.g., the request for an adjournment to produce an alibi witness", held "that the court abused its discretion in denying his request for a 45-minute adjournment." (Walker, __ AD3d at __.) From the decision:

[T]here is no evidence of dilatory conduct on the part of defendant. The record establishes that the alibi witness subpoenaed by defendant was seriously ill and that defense counsel requested the adjournment in order to present the alibi testimony of that witness's son. In addition, there is no indication in the record that the proposed alibi testimony would be cumulative to other evidence presented inasmuch as no other alibi testimony had been presented concerning defendant's precise whereabouts at the time of the shooting. Because the proposed testimony of the alibi witness was pivotal with respect to the issue of defendant's guilt, we conclude that defendant was denied the fundamental right to defend himself.

(Id. at __.)

Justices Kehoe and Hayes dissented, arguing that "defendant utterly failed in our view to meet his burden of establishing his entitlement to an adjournment" in part because "[d]efense counsel made no offer of proof demonstrating that the son's proposed testimony would be 'material and favorable to the defense.'" (Id. at __.)

AD4: Leftovers (March, 2006 term)

New decisions tomorrow, so it is time to clean up the last few cases of significance handed down by the Fourth Department last term.

People v Long, __ AD3d __ [available here]

During a traffic stop, the stopping officer "placed defendant in the back of the patrol car" and then "asked him whether there was anything in the vehicle he should know about" prior to giving Miranda warnings. (Long, __ AD3d at __.) Clearly not familiar with the "anything you say will be used against you" part of Miranda, defendant told the officer there was a gun in the car. (Id. at __.) The trial court suppressed the un-Mirandized statement, and the Fourth Department affirmed, holding:

Contrary to the contention of the People, the record supports Supreme Court's determination that defendant was in police custody when the officer asked defendant the question concerning the contents of his vehicle. 'In deciding whether a defendant was in custody at the time a statement was given, the test is not what the subjective beliefs of the defendant were, but instead what a reasonable person, innocent of any crime, would have thought if they were in defendant's position.' The officer testified that defendant was placed in the back of the patrol car, albeit without handcuffs, and could not exit the patrol car. He further testified that defendant was not free to leave and that a traffic stop for the purpose of issuing a citation is 'technically an arrest.' We thus conclude that the court properly suppressed defendant's initial statement to the officer concerning the gun in the driver's door on the ground that defendant was in custody when he made the statement and had neither received nor waived his Miranda rights, and we further conclude that the court properly suppressed defendant's subsequent statements as the direct consequence of that initial statement.

(Id. at __.)

Just a friendly reminder--you get no bonus points with the police by telling them where the contraband is hidden.

People v Boyd, __ AD3d __ [available here]

In this decision, AD4 holds "that County Court erred in admitting evidence that dynamite was found in the trunk of defendant's vehicle. The potential for prejudice with respect to that evidence greatly outweighed any probative value." (Boyd, __ AD3d at __.) Fine so far, but then the Court goes on to dismiss the error as harmless. (Boyd, __ AD3d at __.) So the evidence wrongly admitted below was unbelievably prejudicial . . . but could not have had an effect on the jury's verdict? Even accounting for different legal standards (probative/prejudicial balancing for admission of the evidence versus whether the error had an effect on the verdict), this seems inconsistent.

People v Hibbard, __ AD3d __ [available here]

At sentencing, the lower court "stated on the record that it was increasing defendant's sentence based upon political remarks made by defendant." (Hibbard, __ AD3d at __.) Sadly, the decision does not set forth the substance of the remarks. The Fourth Department exercised its interest of justice jurisdiction to reach the issue and vacate the sentence, noting that "a 'sentence based to any degree on activity or beliefs protected by the first amendment is constitutionally invalid'." (Id. at __, citing US v Lemon, 723 F2d 922, 938.)

AD4: Cocaine secreted in zippered compartment of shaving bag not in "plain view"

People v James, __ NYS2d __ [available here]

During a warrant execution, a police officer observed "glassine baggies protruding from an open compartment of a shaving bag on a dresser." (James, __ NYS2d at __.) The shaving bag also had a zippered compartment that the officer proceeded to open, finding a "large quantity of crack cocaine". (Id. at __.) The trial court refused to suppress the cocaine, reasoning that the glassine baggies sticking out of the bag were in plain view and therefore the police were justified in inferring "'that the closed portion of the bag was a storage area for narcotics or more packaging material.'" (Id. at __.)

The Fourth Department reversed and stated the (seemingly) obvious: "the cocaine secreted in the zippered compartment of the shaving bag was not in plain view." (James, __ NYS2d at __.) Since the police deliberately unzipped the bag looking for contraband, "the discovery of the cocaine by unzipping the closed compartment was not 'inadvertent rather than anticipated'" and the drugs should have been suppressed. (Id. at __.) This is a common sense decision--while the "plain view" doctrine justifies seizing contraband the police are actually capable of seeing, it cannot be extended to justify further searching in hopes of finding items that are not in plain view (but are in proximity to visible contraband).

AD4: SORA "case summary" standing alone sufficient to establish facts relied on for classification

The Fourth Department is handing down decisions from its April term this Friday. Between now and then, I'll be posting on some leftovers from the Court's March term.

People v McDaniel, 810 NYS2d 723 [available here]

The Court in McDaniel upheld the defendant's designation as a level 3 sex offender based in part on facts contained in a "case summary". These summaries are generated by the prison facility and contain information about the crime of conviction. The facts of the crime are most often set forth in a very conclusory manner, and it is my understanding that the case summaries are used at a facility as a kind of overview for an inmate's file. The case summaries are not signed and do not indicate who the author is, making them a particularly smelly kind of hearsay (because even if a defendant wanted to, there is no way to cross-examine the "declarant" (i.e. the person who wrote the case summary in the first place) about the accuracy of the facts contained in the summary).

Nevertheless, the Fourth Department in McDaniel held that the number of defendant's victims (one of the point assessment categories for a SORA classification) was sufficiently established by bare reliance on the case summary. (See McDaniel, 810 NYS2d at 723 ["Contrary to defendant's further contention, 'the facts contained in the case summary, which were not in dispute and upon which the court relied, provided the required evidentiary support' to establish the number of victims."].) This is a disappointing result, but not necessarily a surprising one; the safeguards at SORA classification hearings are not on par with a criminal proceeding, and sex offenders are not exactly the most sympathetic bunch. Still and all, these case summaries are a fairly flimsy reed upon which to balance the weight of a level 3 SORA classification.

CA: harmless error analysis applicable to denial of right to counsel at suppression hearing

People v Wardlaw, __ NY3d __ [available here]

The Court of Appeals (in a decision by R.S. Smith)has affirmed the Fourth Department on another important issue of first impression today, holding in People v Wardlaw that the deprivation of right to counsel at a suppression hearing is subject to harmless error analysis. I have posted on the Fourth Department's decision in this case here,here, and here. The Court of Appeals' majority opinion adopts the reasoning of the Fourth Department in whole--even if the statements challenged at the suppression hearing had been suppressed, the remaining proof of defendant's guilt was overwhelming and therefore the outcome could not have been different if Wardlaw had a lawyer at his suppression hearing. (See Wardlaw, __ NY3d at __ ["it is clear beyond reasonable doubt that any new trial would have the same result, even if defendant's statements were excluded from evidence . . .[t]hus a new hearing would serve no purpose."].) Therefore, the error can be dismissed as harmless.

The dissenters argue that the most palpably guilty defendants are the ones who most need the assistance of an attorney, and the denial of such assistance should not be dismissed later as harmless because a defendant is very, very guilty. From Judge Ciparick's dissent (joined by Chief Judge Kaye and Judge G.B. Smith):

It is a sad day when the Court of Appeals deviates from its heretofore robust protection of the right to counsel as conceived under the State's Constitution solely because of the proof of guilt and the heinousness of the crimes alleged. Contrary to our jurisprudence, the majority has focused on indicia of "overwhelming" evidence of guilt in order to apply harmless error when a defendant was deprived of the right to counsel at a critical stage of the proceeding--a pre-trial suppression hearing.

A defendant has a constitutionally protected right to counsel at a pre-trial suppression hearing equal to that at trial. Deprivation of that right was never before today subject to a harmless error analysis in this State. Indeed, this Court's long-established jurisprudence has repeatedly recognized the fundamental importance of legal representation to protect the balance between an accused and the prosecutorial power of the State. Were the defendant deprived of counsel at trial itself, however overwhelming the proof of guilt--DNA evidence, confession, eyewitnesses--surely no one would argue that he was not entitled to a new trial. This is not because a new trial is necessary to establish guilt, but rather because the courts must protect the fairness and integrity of our criminal justice system.

(Id at __.)

The majority answers the dissenters by noting "defendants statements, though not confessions, are significant evidence of his guilt; but that guilt was proved conclusively anyway by the DNA. When a man's semen is found in a nine-year-old girl's vagina, the evidence that he raped her is, as the Appellate Division said, 'truly overwhelming.'" (Id at __.) True enough; but is it not also true that the man whose sperm is found in the nine-year-old's vagina the man who most needs an attorney?