2d Cir.: Autopsy report not "testimonial" under Crawford v Washington

US v Erbo, 2006 WL 3021118 [2d Cir 2006]

In a disappointing decision, the Second Circuit has held that autopsy reports are not "testimonial" statements within the meaning of Crawford v Washington because the reports can be classified as business records. The Second Circuit Blog has a full analysis of the decision here, and they were kind enough to quote from my previous post on this issue (available here). The language quoted from me by the Second Circuit Blog was taken from a brief where I argued this issue before the Fourth Department; the result in that case was similarly disappointing. (See People v Bryant, 27 AD3d 1124 [available here] [previous post here].)

When it decided People v Goldstein earlier this year, the New York Court of Appeals at least hinted that it would give "testimonial" a broader definition that would seemingly cover autopsy reports . (See People v Goldstein, 6 NY3d 119 [2005] [see my previous post on Goldstein here].) It might be a good idea to start preserving Crawford-type issues in State Constitutional terms, just in case the Court of Appeals decides to afford New York citizens greater protections under the State Confrontation Clause than the Second Circuit has read into the federal clause.

CA: Double jeopardy does not bar retrial where prosecutor's misconduct was not intended to provoke mistrial

In re Gorghan v Patricia DeAngelis, 2006 NY Slip Op 07516 [available here]

Even in cases of extreme and "deplorable" prosecutorial misconduct that results in reversal on appeal, a re-trial is not barred by double jeopardy unless it can be shown the prosecutor "deliberately intended to provoke a mistrial motion." So held the Court of Appeals last week in Gorghan v Patricia DeAngelis. I'm a little late on this one, but Nicole at Sui Generis has a breakdown of the decision here. I have always thought of this rule in terms of Madden football. Say you and your buddy are playing against each other in a game of Madden. The score is tied in the waning moments of the game. If while you are trying to kick the game winning field goal your buddy punches you in the face and causes you to miss, then that's the Gorghan case--your friend cheated, but he did it so he would have a chance to get the ball back and win a close game. The only fair thing to do in that case is to reset the game and play it again, with no punching involved. But what if you are beating your friend 42-0 in the last two minutes of the game, and your friend "accidentally" unplugs the Playstation? That's the Davis v Brown case (cited by the Court in Gorghan), and the proper remedy is to let the all-but-assured victory stand. The cheater does not get a second bite at the apple in that situation.

I can't believe Judge Kaye's decision didn't draw this analogy.

AD4: Legal sufficiency arguments still not preserved unless specific TOD made at end of all proof

People v Saxton, 2006 NY Slip Op 06972 [available here]

People v Smith, 2006 NY Slip Op 06979 [available here]

The Fourth Department continues to interpret People v Hines (97 NY2d 56) strictly, requiring defense counsel to not only make a specific motion for a trial order of dismissal at the end of the People's case, but also requiring that the motion be renewed at the close of all proof. Defense counsel in Saxton was doubly deficient, failing to make the specific argument advanced on appeal and failing to renew his TOD motion at the close of all proof. (Saxton, 2006 NY Slip Op 06972.) The Fourth Department ultimately reversed in Saxton, however, holding it was error for the trial court to summarily deny defense counsel's 330.30 motion where "[t]he sworn allegations in defendant's moving papers that defendant learned after the verdict was rendered that a juror had failed to disclose a past extramarital affair with a witness to the altercation between defendant and the victim required a hearing on the issue whether the juror's alleged misconduct prejudiced a substantial right of defendant." (Saxton, 2006 NY Slip Op 06972.)

AD4: Payroll documents improperly received as "business records", insufficient evidence to support welfare fraud conviction

People v Smith, 2006 NY Slip Op 06944 [available here]

In one of the few reversals from this packet, the Fourth Department reversed a defendant's conviction for welfare fraud based on an improperly admitted payroll document and a lack of evidence on the the amount of welfare benefits actually wrongfully received. A great result for Mr. Smith, no doubt, but the opinion is short on analysis and of thus of limited value as precedent. After stating the requirements for a business record (made in the regular course of business, it is the regular course of the business to make the record, and the record was made contemporaneous with the act), the Court simply concludes that "the People failed to establish both the second and third foundation requirements, and thus the payroll documents were improperly admitted." (People v Smith, 2006 NY Slip Op 06944.) The Court also dismissed certain counts of the indictment on legal sufficiency grounds, holding "the evidence is insufficient to establish the amount that defendant was paid by private employers while he received public assistance benefits, and thus the evidence is insufficient to establish the amount of benefits, if any, improperly received by defendant." (Id.)

AD4: Mere possession of defaced gun sufficient to prove defendant knew gun was defaced

People v Smith, 2006 NY Slip Op 07011 [available here]

To be guilty of Criminal Possession of a Weapon in the Third Degree ("CPW3") under subsection 3 of Penal Law 265.02, a defendant must possess the weapon with knowledge that "the weapon had been defaced." (Penal Law 265.02[3].) The Fourth Department held the defendant's mere possession of the visibly defaced gun was sufficient to establish that he knew it was defaced; from the decision:

[H]ere was no dispute that defendant possessed the defaced revolver on his person and that its condition was visible as he pointed it at the police officer in a shooter's stance. Photographs of the defaced revolver were admitted in evidence, and thus the jury was able to evaluate whether it was possible to possess the revolver without knowledge that its identifying features were illegible. "Generally, possession suffices to permit the inference that the possessor knows what he possesses, especially, but not exclusively, if it is in his [or her] hands". Moreover, "the recent and exclusive possession of the fruits of any crime warrants the inference of guilt, including . . . knowledgeable possession". "[I]t makes no significant difference . . . whether knowledge is presumed by statute or inferred by reasoning without the benefit of statutory presumption". Thus, we conclude that the People presented legally sufficient evidence that defendant knew that the revolver in his possession was defaced.

(Smith, 2006 NY Slip Op 07011.)

Yet another quasi-presumption that mere possession of a gun will give rise to in New York.

CA: Sandoval error subject to harmless error analysis

People v Grant, 2006 NY Slip Op 07394 [available here]

Where the "evidence of a defendant's guilt [is] overwhelming" and "there is nothing to which he could legitimately have testified that might have been believed by a jury", any Sandoval error will be considered harmless on appeal. So says the Court of Appeals in People v Grant,a decision handed down today. This is a continuation of the "really guilty man" flavor of harmless error analysis that started back in the Court's Wardlaw decision (holding denial of a defendant's right to counsel at suppression subject to harmless error analysis). In Grant, the Sandoval error could not have been more egregious; at defendant's trial for criminal contempt, the trial court ruled "that should defendant testify, the People would be permitted to impeach him by mention of his six prior criminal-contempt convictions." (Grant, 2006 NY Slip Op 07394.) Defense counsel then placed on the record that defendant would not be testifying because of the trial court's Sandoval ruling. The Court of Appeals agreed that the Sandoval ruling was erroneous, but found it to be harmless in this case. From the Court's decision:

We now hold explicitly [that] Sandoval error is properly subject to harmless-error analysis. At the outset, we note that although defendant claims that his constitutional right to testify in his own behalf was violated by the Court's Sandoval ruling, he never raised any constitutional claim before the trial court, thus failing to preserve this contention for our review. Accordingly, his current claim must be reviewed under the standard applicable to nonconstitutional harmless error. Under that standard, an error will be deemed harmless when the proof of guilt was overwhelming and there was no significant probability that the jury would have acquitted had the error not occurred. [...]

If, in a particular case, the factfinder is deprived of no significant material evidence, then the defendant has not been denied a fair trial and reversal of the conviction would serve no jurisprudential purpose. Assuming that the trial court here abused its discretion, we agree with the Appellate Division that any error was harmless, since defendant's decision not to testify did not deprive the jury of any 'critical information'. [...] The evidence of defendant's guilt was overwhelming. [...] Although defendant states in the abstract that he was "the sole source of his defense," he proffers no hint that he actually had any creditable defense, and offers no suggestion as to what it might have been. Plainly, on this record, there is nothing to which he could legitimately have testified that might have been believed by a jury.

(Id. at __.)

Judge R.S. Smith dissented, stating simply "I cannot accept the proposition that an error that prevented a defendant from telling his side of the story to a jury can ever be 'harmless.' [...] To hold that interference with the defendant's right to testify may be overlooked because of his failure to make a 'proffer' that the trial court finds 'creditable' is to sanction a trespass by the court on the jury's province that is not consistent with the way our system works." (Id. at __ [SMITH, J., dissenting].)

The upshot of this decision is that trial defense counsel must do at least two and preferably three things to even give his or her client a shot of obtaining meaningful appellate review of a trial court's Sandoval ruling: 1) put on the record that the defendant's decision not to testify was based on the trial court's Sandoval ruling, 2) make at least a limited proffer of defendant's testimony, and 3) put on the record that the trial court's Sandoval ruling is depriving defendant of his Constitutional right to present a defense and testify on his own behalf. That last one is critical, because it will (hopefully) trigger the stricter standard of harmless error review applicable to constitutional error (i.e. the reviewing court will have to find the Sandoval error harmless beyond a reasonable doubt).

And of course, in the Fourth Department a defendant must object to the trial court's "ultimate" Sandoval ruling to even preserve the issue for review in the first place. (See People v Mc Millon, 2006 NY Slip Op 06993 [available here].)

AD4: jury must be charged defendant has no duty to retreat if less-than-deadly force used in self-defense

People v Phillips, 2006 NY Slip Op 07051 [available here]

A defendant only has a duty to retreat to safety before acting in self-defense if he intends to use deadly physical force. If the self-defender just plans on defending with less than deadly physical force, he may do so even if capable of fleeing. In Phillips, the defendant was charged with assault, and argued that whatever injuries he inflicted were done in self-defense. The trial court charged the jury that defendant had a duty to retreat, and the Fourth Department reversed. "It is clear that the jury must determine whether a defendant could have retreated with complete safety only when a defendant uses deadly physical force . . . we conclude that the court's charge left the jury with no choice but to reject the justification defense, inasmuch as the evidence established that defendant did not retreat although he could have done so with complete safety." (Phillips, 2006 NY Slip Op 07051.)

Justice Centra named to AD4 bench

Governor Pataki designated Justice John V. Centra as a Justice of the Appellate Division, Fourth Department today. You can read the Governor's press release here. Also, the New York Law Journal is reporting here that Justice Scudder will likely be named Presiding Justice of the AD4 to replace Justice Pigott.

AD4: Officer bolstering is not bolstering if eyewitness is excited

People v Roseboro, 2006 NY Slip Op 06976 [available here]

It is well-settled that, as a general rule, a police officer is not allowed to bolster the identification testimony of an eyewitness. Thus, if an eyewitness testifies at trial to a positive identification of a defendant during a showup, the People are not allowed to call the police officer who conducted the showup to confirm that the eyewitness identified the suspect. It is bolstering, plain and simple.

In Roseboro, the police officer was allowed at trial to "confirm[...] the victim's identification of defendant at the hospital." (Roseboro, 2006 NY Slip Op 06976.) This is a classic bolstering issue. However, the Fourth Department affirmed defendant's conviction, finding the officer's testimony was admissible because the "identification by the victim was admissible under the excited utterance exception to the hearsay rule, i.e. it was 'made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication.'" (Id.) Fine, the eyewitnesses statement would come in over a hearsay objection. But that doesn't speak to the bolstering question--why is the cop allowed to confirm the eyewitness identification testimony, and how does the fact that the witness may have been excited when she made the identification figure in? The Fourth Department's decision is a non sequitor--the Court engages in a hearsay analysis to resolve a bolstering issue. I am at a loss to explain this one.

AD4: "second child sexual assault felony offender statement" timely in plea situation if it affords defendant opportunity to be heard

People v Armbruster, 2006 NY Slip Op 07055 [available here]

A relatively recent flavor of persistent felony sentencing is found in CPL 400.19[2], that allows harsher penalties for those defendants previously convicted of felony sexual assault against a child. Before seeking the harsher sentence, the People must file a statement "at any time before trial commences setting forth the date and placed of each [such] alleged predicate felony conviction . . . and a statement whether the defendant was eighteen years of age or older at the time of the commission of the predicate felony." (Armbruster, 2006 NY Slip Op 07055.) That's fine if you are standing trial for the present offense--but what if a defendant pleads guilty? The defendant in Armbruster argued that the statement must be filed before "the entry of a guilty plea." (Id.) The Fourth Department, while acknowledging that the statute did not provide for the guilty plea scenario, disagreed with defendant and instead concluded "that the CPL 400.19 statement is timely filed in the event that there is a guilty plea if it is filed within a sufficient time before the imposition of sentence to afford the defendant notice and an opportunity to be heard." (Id.) Even if the statement was required to be filed before entry of the guilty plea, the Fourth Department would have found the error harmless; importing reasoning employed to resolve this issue in more established recidivist sentence procedures, the Court held "'[w]here, as here, the statutory purposes for filing a predicate statement (i.e. [,] apprising the court of the prior conviction and affording defendant notice and an opportunity to be heard in connection with the predicate felony) are satisfied, strict compliance with [CPL 400.19] is not required.'" (Id. at __ [citations omitted].)

AD4: We know "custody" when we see it

In dealing with the legality of police-citizen encounters, it is critical to pinpoint the point of custody, i.e. the moment at which a reasonable, innocent person would no longer feel free to leave. The resolution of this "custody" question often resolves the legality of the police conduct--a whole slew of police actions and so-called "detentions" are permissible on less than probable cause so long as the suspect is not found to be in "custody" yet. Three decisions handed down by the Fourth Department this term highlight the contours of the Fourth Department's thinking on "custody" matters; the decisions are somewhat contradictory, but nonetheless provide useful guideposts.

People v Mc Clain, 2006 NY Slip Op 06947 [available here]

In People v Mc Clain, the defendant was seized by multiple police officers at gunpoint, handcuffed, frisked and transported back to the crime scene for a showup identification. (Mc Clain, NY Slip Op 06947.) The Fourth Department held that the police conduct amounted to a full arrest justifiable only on a showing of probable cause--"the actions of the police officers in drawing their guns, handcuffing and frisking defendant, and transporting defendant, while handcuffed, to the scene of the robbery amounted to an arrest of defendant." (Id.) This is a welcome decision from the AD4, because usually in a case where a defendant is detained (however forcefully) only briefly for purposes of conducting a showup identification, mid-level appellate courts will cite to the seminal Court of Appeals decision in People v Hicks and justify the so-called "temporary investigative detention" on a lesser showing of reasonable suspicion. Hey, wait a minute . . . that's exactly what the Fourth Department did in . . .

People v Wiley, 2006 NY Slip Op 07060 [available here]

. . . where the defendant was stopped on a public street, searched, handcuffed and locked in the back of a police cruiser without any explanation of why he was being detained. (Full disclosure: I was the attorney on appeal for Mr. Wiley.) The Fourth Department affirmed the trial court's denial of defense counsel's motion to suppress, holding "[t]he police had the requisite reasonable suspicion to stop and detain defendant for a showup identification procedure." (Wiley, 2006 NY Slip Op 07060.) From the decision:

[A]lthough the officer handcuffed defendant prior to transporting him to the crime scene for the showup identification procedure, defendant was not taken to the police station at that time, the conversation between defendant and the officer was congenial, and the crime scene was a short distance from the location where defendant was stopped by the officer. The record further establishes that defendant was not interrogated during the brief detention and, indeed, the officer stopped defendant from speaking to him, administered Miranda warnings and discontinued conversation with defendant until after the showup identification occurred. [...] Thus, we agree with the People that the police "diligently pursued a minimally intrusive means of investigation likely to confirm or dispel suspicion quickly, during which time it was necessary to detain the defendant."
(Id. at __.)

The only difference between Wiley and the facts of Mc Clain is that the officers drew their guns in Mc Clain. I have my doubts as to whether that should make a difference--it seems a reasonable, innocent person in Mr. Wiley's shoes would not have felt free to leave the officer's presence once he was stopped, frisked, searched, handcuffed, locked in the back of the police cruiser and transported without explanation. But even assuming a person would feel free to leave after being cuffed and locked in a police car, I gotta believe even the most naive person in the world would feel less-than-free if, during the course of casual conversation, the officer read Miranda warnings (i.e. the hallmark of an arrest to anyone who has watched any primetime cop show in the last 20 years). But I digress.

People v Dozier, 2006 NY Slip Op 07053 [available here]

From the other end of the "custody" spectrum comes Dozier. Unlike the defendants in Mc Clane and Wiley, Ms. Dozier was not plucked from a public street, was not subject to a frisk or search, and was not handcuffed. Rather, "[d]efendant willingly accompanied the police to the police station, she was not handcuffed, she was offered food and beverages, and she was not questioned in an accusatory fashion." (Dozier, 2006 NY Slip Op 07053.) On those facts, the Fourth Department had no trouble finding "a reasonable person innocent of any crime would not have believed that he or she was in custody, and thus warnings were not required." (Id. at __.)