AD4 restricts police officer "expert" testimony

People v Dixon, 815 NYS2d 848 [available here]

Jeremy Dixon was arrested for selling drugs when a narcotics officer saw him exchange an unidentified object for another unidentified object in a drug prone neighborhood. When searched, $52 was found in Mr. Dixon's pocket. At trial, the arresting officer gave his "expert" opinion that the possession of $52 is consistent with an intent to sell drugs. The officer also repeatedly characterized the observed exchange as a "hand-to-hand drug transaction". The Fourth Department found error on both scores (albeit briefly): "We agree with defendant, however, that the court erred in admitting the opinion tesitmony of a police officer that a hand-to-hand drug transaction had occurred and that defendant's possession of $52 was consistent with the sale of drugs." (Dixon, 815 NYS2d at 848.) Nothing too earth shattering here, but it is nice to see the Fourth Department set some limits on this type of "expert" cop testimony.

The more interesting issue on appeal was whether an exchange of one unidentified object for another unidentified object in a drug-prone neighborhood was sufficient to support probable cause for arrest. The Fourth Department rejected appellant's argument that something more was required, but did so without any analysis. (Dixon, 815 NYS2d at 848.)

Not the result Appellant was looking for

People v Thigpen, __ AD3d __ [available here]

Criminal defendants are allowed to appeal once as a matter of right--for the most part, if you got a conviction, you get an appeal. However, it is not always a good idea to avail oneself of that right. The Fourth Department's decision in People v Thigpen illustrates the point. The substantive issues raised by Mr. Thigpen's counsel on appeal were weak, and the Fourth Department rejected them in a few paragraphs. The real kick in the stomach for Mr. Thigpen comes in the last paragraph of the decision:

Finally, we conclude that the sentence of 3 1/2 to 7 years imprisonment is illegal inasmuch as defendant was sentenced as a second felony offender on two class B drug felonies, which in 2003 required a minimum indeterminate sentence of 4 1/2 to 9 years. "Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand". We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing.

(People v Thigpen, __ AD3d __.)

Ouch. I guarantee Mr. Thigpen did not expect to come out of his appeal with a longer sentence that he had going in.

AD4: refusal to allow defense to present evidence that placed defendant away from scene of shooting requires reversal

People v Collins, __ AD3d __ [available here]

Defendant Collins was charged with Criminal Possession of a Weapon in the Second Degree and Reckless Endangerment in the First Degree in connection with a shooting that occurred on the sidewalk in front of a bar. In their Bill of Particulars, the People described the place of the shooting as "in the vicinity of 2261 Fillmore Avenue", the address of the bar. Collins wanted to put on proof that he was inside the bar at the time the shots were fired outside on the street, and thus could not have been the one firing the shots. The trial court would not let the evidence in because the defendant had not previously filed an alibi notice, and the Fourth Department held this was error requiring reversal.

First, the Fourth Department rejected the People's argument that the proposed evidence constituted an "alibi"; as the Court noted, the People drafted their bill of particulars very broadly (as prosecutors are wont to do), and it came back to bite them. The People described the location of the crime as "in the vicinity of 2261 Fillmore Avenue," and the Fourth Department had no problem finding that "the proposed evidence did not establish an alibi because he was in fact 'in the vicinity of 2261 Fillmore Avenue," and thus a notice of alibi was not required." (Collins, __ AD3d at __.)

The Court went on to hold that, even if a notice had been required, the inquiry is not finished. There is no "gotcha" type, technical game to be played when a defendant's constitutional right to present a defense is concerned. Even if evidence can be truly characterized as "alibi" evidence and the statutorily required notice is required, a trial court must still "balance 'the fundamental character of the defendant's right to offer the testimony of witnesses in his favor [pursuant to US Constitution Amendment VI against] . . . the interest in the fair and efficient administration of justice'." (Collins, quoting Taylor v Illinois, 484 US 400, 414-415.)

AD4: preservation not required for argument based on trial court's failure to advise defendant of postrelease supervision at time of plea

People v Simpson, __ AD3d __ [available here]

During a plea colloquy, the trial court must inform a defendant of the "direct consequences" of a plea. A term of postrelease supervision is "a direct consequence of a criminal conviction", and failure of the "trial court to advise of postrelease supervision requires reversal of the conviction." (People Catu, 4 NY3d 242, 244-245 [2005].) Thus, if a defendant is not informed on the record of postrelease supervision, the plea must be vacated. The somewhat open question has always been whether the issue needs to be preserved, i.e. does a defendant have to make a 440 motion to vacate his plea or otherwise protest the trial court's failure to include the postrelease supervision on the record before challenging the plea on appeal? The Court of Appeals decision in Catu certainly suggests that preservation is not required, unequivocally holding that "the failure of a court to advise of postrelease supervision requires reversal of conviction." (Catu, 4 NY3d at 245.) The Fourth Department expressly decided the question in the Simpson decision handed down last Friday, and confirmed the implication of Catu; from the decision:

Defendant contends that his plea was not knowingly and voluntarily entered because County Court failed to advise him of the mandatory period of postrelease supervision at the time of the plea orat the sentencing proceeding and he had no notice of the mandatory period of postrelease supervision inasmuch as the court did not impose a period of postrelease supervision at sentencing (cf. People v Vance, 27 AD3d 1015). We agree. "[T]he failure of a court to advise of postrelease supervision requires reversal of the conviction" (People v Catu, 4 NY3d 242, 245). To the extent that prior decisions of this Court would require preservation of defendant's contention (see e.g. People v Pan Zhi Feng, 15 AD3d 862, lv denied 5 NY3d 809, 812; People v Roddy, 295 AD2d 965), those decisions are no longer to be followed.

(Simpson, __ AD3d at __.)

This decision clears up what was sometimes a problem for defendants trying to raise this issue. If a defendant argued on a 440 motion to the trial court that the postrelease supervision was not on the record, the trial court could duck the issue by claiming the argument could be raised on direct appeal. If a defendant decided to raise the issue for the first time on direct appeal, the Fourth Department would sometimes hold a 440 motion was necessary to preserve the issue. It was the classic "go ask your father/go ask your mother" situation. The Simpson decision eliminates this problem and brings some clarity to a previously murky area of law.

Note, though, that the Court goes out of its way to note that the postrelease supervision was not mentioned at the plea colloquy and not imposed at sentencing. (Id.) This could be significant. I have seen cases where the postrelease supervision is not part of the plea colloquy, but is mentioned by the judge at sentencing (i.e. "I hereby sentence you to X number of years to be followed by 5 years postrelease supervision"). In that case, I could see the Fourth
Department requiring some sort of objection at sentencing to preserve the issue for review.

CA: trial court's failure to submit CPW3 reviewable, but not an abuse of discretion

People v Leon, __ NY3d __ [available here]

Rolando Leon was "involved in a dispute with another drug dealer, Hattie Dukes." (Leon, _ NY3d at __.) Apparently not one to reason with his adversaries, Leon "got a gun from under his mattress, went to where Dukes and his girlfriend were quarelling, and killed Dukes by shooting her in the face." (Id. at __.) Leon claimed self-defense; the jury believed him and acquitted Leon of murder. However, the jury did convict Leon of Criminal Possession of a Weapon (CPW) in the Second Degree. Leon had been charged by indictment with both CPW2 and CPW3; the Court notes the difference:

The People charged defendant with second-degree criminal possession on the theory that he possessed a loaded firearm "with intent to use the same unlawfully against another". The indictment also contained a charge of criminal possession of a weapon in the third degree, which is committed by possessing a loaded firearm anywhere except in one's home or place of business.

(Id. at __.)

Defense counsel asked that both CPW2 and CPW3 be submitted to the jury; the trial court refused. Since CPW3 is not a lesser-included offense of CPW2, the Court of Appeals reviewed the trial court's refusal to submit the count for an abuse of discretion. From the decision:

The problem in this case exists because criminal possession of a weapon in the third degree is not a "lesser included offense" of criminal possession of a weapon in the second degree. Rather, the two are "non-inclusory concurrent counts" (see CPL Ÿ 300.30 [3], [4]); it is possible to commit the greater offense without committing the lesser one. Second-degree criminal possession, in the form of possession of a loaded firearm with intent to use it unlawfully against another, can be committed anywhere, but possession of a loaded firearm constitutes the third-degree crime charged here only when it does not occur in the defendant's home or place of business. [...]

If the crime defendant asked to have submitted to the jury had been a lesser included offense, the court would have been required to grant his request "if there [was] a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater" (CPL 300.50 [1]; see CPL Ÿ 300.50 [2]). But because the two offenses are non-inclusory, the submission of the less serious count, even if there was evidence to support it, was not mandatory. [...] [W]hether to submit it was a matter for the trial court's discretion under CPL ß 300.40 (3) and (4). "With respect to non-inclusory concurrent counts, the court may in its discretion submit one or more or all thereof" (CPL Ÿ 300.40 [3] [a]).[...]

(Id. at __.)

The Court found the trial court did not abuse its discretion, since the idea that the defendant could have simply possessed the gun with no unlawful purpose (and therefore been guilty of CPW3 instead of CPW2) was "farfetched" and a defendant is not entitled to submit a lesser crime to the jury in hopes of jury nullification. (Id. at __.)

The Court also rejected the People's argument that "a discretionary ruling in their favor cannot be challenged," holding that the CPL section cited by the People in support of their argument was not applicable "to already discretionary rulings like the one at issue in this case." (Id. at __.)

More over the next few days on the new decisions handed down by the Fourth Department last Friday.

AD4: testimonial hearsay not admissable at persistent violent felony offender hearing

People v Williams, __ AD3d __ [available here]

Deciding an issue of first impression in New York, the Fourth Department holds in a decision handed down today that the "testimonial" hearsay rule promulgated in Crawford v Washington applies at persistent violent felony offender hearings in New York to exclude testimonial hearsay absent an opportunity to cross-examine the declarants. I have discussed this previously open question here.

At issue in Williams was "an affidavit of the Criminal History Bureau" submitted by the People at defendant's persistent violent felony offender hearing to prove up the fact of the requisite prior convictions. As described by the Court, the affidavit

referred to four fingerprint cards of "Michael Williams" that were obtained in connection with the present felony and three earlier felonies that occurred in 1977, 1980 and 1995. The director asserted in his affidavit that the fingerprint cards were compared and that "staff determined" that the fingerprints on those cards were the fingerprints of the same Michael C. Williams who was before the court at sentencing.

(Williams, __ AD3d at __.)

Although noting that the right on confrontation is a trial right that does not usually apply at sentencing, the Fourth Department nevertheless concluded that New York's recidivist sentencing statute specifically makes the right of confrontation (and by extension the rule set forth in Crawford v Washington) applicable at a persistent felony offender hearing and the fingerprint affidavit should have been excluded. From the decision:

We conclude . . . that the affidavit of the director of the Criminal History Bureau is not admissible under New York law, even in a sentencing proceeding. [...]

[T]he director's affidavit was testimonial in nature, and the "'testimonial' statements [in the adffidavit were] not previously subjected to cross-examination [and thus were] inadmissible against [this] criminal defendant". At a hearing to determine whether a defendant is a persistent felony offender, "[t]he burden of proof is upon the people and a finding that the defendant has been subjected to a predicate violent felony conviction must be based upon proof beyond a reasonable doubt by evidence admissible under the rules applicable to a trial of the issue of guilt." (CPL 400.15[7][a]; see CPL 400.16[2].) Here, the affidavit of the director would not be admissible at trial, and thus cannot constitute the requisite proof.

(Id. at __ [citations omitted].)

This is a welcome result--given the enormous stakes involved in persistent felony hearings (potentially enhancing a defendant's sentence to 25 years to life), it makes sense that defendants should enjoy the same evidentiary protections at a persistent felony offender hearing that they would at trial. The legislature necessarily intended that this should be so when it specified in section 400.15[7][a] of the CPL that the prior felonies must be proved by "evidence admissible under the rules of evidence applicable to a trial of the issue of guilt." (CPL 400.15[7][a].) Today's decision in Williams vindicates that intent.

AD4: Alford plea does not warrant point assessment for "failing to take responsibility" at SORA classification

People v Gonzalez, __ AD3d __ [available here]

Remember back in this post when I explained how the sex offender classification system in New York is points based, and if certain facts are present points are assessed? Under one of those categories, a defendant is given ten points if he does not accept responsibility for his actions. In Gonzalez, the defendant was assessed points under this category because his sex crime conviction was based on an Alford plea (where the defendant does not admit guilt or wrongdoing, but agrees to plead guilty to a crime [sometimes called a "no contest" plea]) to sex abuse in the first degree. The Fourth Department held that a defendant's Alford plea , "without more, does not warrant the board's assessment of 10 points for the purported failure of defendant to accept responsibility for his conduct [...]." (People v Gonzalez, __ AD3d at __.) The Court also noted that the points for being "armed with a dangerous instrument" (an element of sex abuse first) could not be given solely based on the guilty plea, because the Alford plea colloquy contain no admissions of facts. (See id.)

The only other decision worth noting from the Fourth Department's April term is People v Robinson, if only for the study in human persistence it provides. The facts were explained by the Court:

The first transaction involved the stabbing of a victim; the second involved tampering with a witness to the stabbing; the third involved tampering with the same witness on a different occasion and attempting to bribe him; and the fourth involved the shooting and attempted murder of the stabbing victim the day before trial on the stabbing incident was scheduled to begin.

(People v Robinson, __ AD3d at __.)

If at first you don't succeed, I guess. The legal question was a bit of a letdown; while noting that defendants generally have the right to be present "during Ventimiglia hearings or sidebar conferences", the "defendant's right to be present was not violated in this case because the only issue discussed was whether the testimony was more prejudicial than probative, and thus there was no potential for meaningful participation on defendant's part." (Id. at __.)

CA:"trial court did not abuse its discretion by calling 44 people for simultaneous voir dire questioning"

People v Serrano, __ NY3d __ [available here]

Apparently wanting to limit the number of rounds required to complete jury selection, the trial court in Serrano "called 44 individuals for simultaneous questioning, placing twelve in the jury box and the others in four front rows of the courtroom." (Serrano, __ NY3d at __.) Defense counsel objected, "stating that he would have difficulty conducting an effective voir dire since many prospective jurors sat behind him." (Id. at __.) Noting that the relevant statute only provides that "not less than twelve" prospective jurors are to be called at a time, the Court held:

Tellingly, the legislature set no upper limit for the number of prospective jurors, thus allowing judges discretion to make their courtrooms, and voir dire, more efficient. Defendant has not demonstrated that he could not conduct a voir dire by the trial court's decision to expand the jury box. During voir dire, counsel expressed no inability to observe, hear or assess the demeanor and qualifications of, or exercise challenges against, any prospective jurors. There was also no evidence of prejudice on the record at the end of voir dire. We therefore conclude that there was no abuse of discretion [...]

(Id at __.)

Nothing groundbreaking here, but lets hope trial courts don't get wind of it and start doing voir dire in one pass.

CA: Navy court martial conviction for "indecent assault" not classifiable sex offense under NY SORA

People v Kennedy, __ NY3d __ [available here]

This time last year, the Fourth Department held that a Navy court martial conviction for "indecent assault" was a classifiable offense under the section of New York's SORA law defining a SORA-eligible sex crime to include "a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred." (People v Kennedy, 20 AD3d 137, ___ [4th Dept 2005].) The Fourth Department noted that the certain Navy regulations require the Navy to notify state and local law enforcement of an offender's Navy sex crime convictions and to further provide information to the offender concerning any registration requirements. (Id. at __.) This was the equivalent of "registering" in the "jurisdiction in which the conviction occurred" for purposes of the SORA statute and thus (according to the Fourth Department) a person convicted of "indecent assault" by a Navy court martial was required to register as a sex offender in New York. See my previous post on Kennedy here.

The Court of Appeals reversed the Fourth Department on this issue in a decision handed down today. From Judge Rosenblatt's majority opinion:

County Court's determination fails because the second element of section 168-a(2)(d)(ii) requires that the conviction result in the offender's obligation to register in the "other jurisdiction,", i.e. where defendant was convicted--here, the United States Navy. The People argue that Secretary of the Navy Instruction 5800.14 obligates defendant to register with the Navy. It does not. This "Instruction" is a notification order directed to "all Ships and Stations"; by its own terms, it places responsibility to provide notification not on the offender but on the Assistant Secretary of the Navy for Manpower and Reserve Affairs, the Navy Personnel Command, the Commandant of the Marine Corps, the "Convening Authority or Convening Authority's Designee" for each court-martial, the Naval Criminal Investigative Service and the Judge Advocate General of the Navy.

The People have presented no evidence of any kind suggesting that naval sex offenders must register with the Navy or have any ongoing obligation to keep the Navy informed of their whereabouts once they leave the service. Furthermore, the People have presented no evidence that the Navy or Department of Defense maintains any registry or equivalent database; if there is no registry, there can be no registration and no registrants. Because the People have not shown that defendant ever had any obligation to register with the other jurisdiction, they have not met the second statutory requirement for registration in New York.

(People v Kennedy, __ NY3d at __.)

Judge Graffeo concurred separately "to highlight the need for legislative reconsideration." (Id. at __.)

I do not have a whole lot to say about Kennedy that I didn't say when the Fourth Department first decided the case last year (see my previous post here).

The Fourth Department will hand down decisions from its May, 2006 term this Friday. I will post on the few leftover decisions from the Court's April term between now and then.