CA: plea record must reflect defendant "understood the distinction between the right to appeal and other trial rights"

People v Moyett, 2006 NY Slip Op 08643 [available here]

In a short decision driving home the holding of another recent decision, the Court of Appeals held in Moyett that a defendant's waiver of his right to appeal was not valid where the trial court simply told the defendant, "by pleading guilty you give up your right to appeal the conviction." (Moyett, 2006 NY Slip Op 08643.) This colloquy was insufficient to ensure that the defendant understood that the right to appeal is not simply extinguished upon a plea of guilty, but must be affirmatively waived. From the decision:

Based on this statement, defendant may have erroneously believed that the right to appeal is automatically extinguished upon entry of a guilty plea. Under these circumstances, and absent a written waiver of appeal or some indication in the record that defendant understood the distinction between the right to appeal and other trial rights forfeited incident to a guilty plea, there is inadequate assurance that defendant entered into a knowing, intelligent and voluntary waiver of appeal.

(Id [citations omitted].)

The Moyett decision does little more than apply the Court's recent decision in People v Lopez, where the Court clarified that a plea "record must establish that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty." (People v Lopez, 2006 NY Slip Op 01195.)

AD4: cop giving witness positive post-identification feedback after photo array is a viable Wade issue

People v Williams, 2006 NY Slip Op 08353 [available here]

In People v Williams, the Fourth Department reversed defendant's conviction and remanded for a Wade hearing where the People's 710.30 notice, while giving generic notice of a photo array identification procedure where the witness failed to pick out defendant, failed to disclose that the police detective administering the photo array informed the witness which photograph in the array was the defendant after the procedure was finished. Perhaps the most important part of the decision is the Fourth Department's characterization of the giving of this positive post-array feedback as "improper" police conduct that could potentially taint the reliability of subsequent in-court identification testimony. From the decision:

We agree with defendant that he is entitled to a Wade hearing and a new trial. Here, the People disclosed to defendant in their CPL 710.30 notice that the victim was shown a photo array on one occasion and failed to identify defendant in that array, and County Court refused to conduct a pretrial Wade hearing. At trial, however, the victim testified that she was shown a photo array a second time and, after she failed to identify defendant in that array, a detective informed her which photograph was that of defendant. The victim identified defendant as the perpetrator at trial. Because the People failed to disclose the detective's identification of defendant to the victim in their CPL 710.30 notice, defendant was denied the opportunity, before trial, to test the admissibility of the victim's identification testimony. "The main concern motivating [CPL 710.30] was the possibility, recognized in three [United States] Supreme Court decisions, that pretrial identification procedures could be so suggestive or misleading as to compromise a defendant's constitutional right to due process of law. The danger sought to be avoided is, and always has been, the risk of convicting the innocent through tainted identification procedures". It cannot be gainsaid that the act of the detective in informing the victim which photograph in the array was that of defendant constitutes a tainted identification procedure. We reach this issue as a matter of discretion in the interest of justice despite defendant's failure to seek a midtrial Wade hearing following the victim's testimony regarding the second photo array, particularly in view of the fact that defendant sought a pretrial Wade hearing, and we conclude that defendant is "entitled to a hearing concerning whether the improper [conduct of the detective] affect[ed] the reliability of the victim's in-court identification and render[ed] it inadmissible.' "

(People v Williams, 2006 NY Slip Op 08353 [citations omitted].)

I love this issue--the research is clear the giving a witness post-identification feedback after a photo array (i.e. telling the witness he or she picked the right guy) destroys the reliability of any subsequent identification, and the conduct at issue is completely gratuitous and easily avoided. I posted on the this topic at length here. This is a great issue for trial defense counsel, because police officers do not yet know that this is a live issue, and (if asked) will usually freely admit that they gave positive post-identification feedback.

CA: legal sufficiency arguments not preserved unless TOD renewed at close of all proof

People v Lane, 2006 NY Slip Op 08641 [available here]

Making explicit what was previously somewhat unclear, the Court of Appeals has held in People v Lane that a defendant's legal sufficiency arguments are not properly preserved for appellate review unless a motion for a trial order of dismissal is renewed at the close of all proof. Without much fanfare, the Court simply held,

After defendant presented his own evidence, he did not renew his earlier argument. Consequently, whether the trial evidence was sufficient to support each element of the crime is not a question of law that this Court may review.

(People v Lane, 2006 NY Slip Op 08641 [citations omitted].)

The Court cited to its previous decisions in People v Hines and People v Payne, but neither of those decisions went as far as the Court does in Lane. In Hines, the Court held that the defendant could not argue on appeal that the People's evidence was insufficient to support a verdict where defendant put on proof after the People rested and filled in some gaps in the People's case. In that case, even though the TOD motion was made at the end of the People's case and not thereafter renewed, the reviewing appellate court was obligated to consider the sufficiency of all the evidence (defendant's included) and was not bound to put itself in the shoes of the trial court at the time it decided the TOD motion (i.e. with only the People's evidence to consider). (See Hines, 97 NY2d 56.) The Court's decision in Payne suggested that the issue in Hines was one of waiver, and not preservation--"[w]hen a trial court denies such a motion at the close of the People's case, a defendant who thereafter introduces proof waives the right to have the court consider the motion solely on the basis of the People's evidence." (Payne, 3 NY3d 266.) This is a big distinction--under the "waiver" reasoning of Payne, a defendant who made a TOD motion at the close of the People's case and did not renew after presenting evidence could still press his legal sufficiency arguments on appeal, but would have to base his arguments on the entirety of the proof. The Court's decision in Lane moves away from Payne and clarifies that a defendant who does not renew his TOD motion at the close of all proof is out of luck, and any legal sufficiency arguments are unpreserved for review. A harsh decision, but completely in character for an increasingly preservation-obsessed Court.

The Fourth Department has been interpreting Hines in this manner for some time now, so the moral for Fourth Department criminal defense practicioners is not new--make a specific TOD motion when the People rest and renew it at the close of all proof. (See, e.g., People v Carter, 2006 NY Slip Op 08552 [available here] ["Defendant failed to preserve for our review his contention that the conviction of criminal possession of a weapon is not supported by legally sufficient evidence inasmuch as he failed to make a sufficiently specific motion to dismiss, and he also failed to preserve his contention for our review inasmuch as he failed to renew his motion after presenting evidence."].)

AD4: a rare Batson reversal

People v Wilmot, 2006 NY Slip Op 08391 [available here]

In a rare reversal based on a Batson violation, the Fourth Department held in People v Wilmot that the prosecutor's race-neutral explanation for exercising a peremptory challenge on a black juror--that the jury was young and lacked "lifelong experience"--was "pretextual" where the prosecutor did not challenge other young jurors and where "age" had nothing to do with the case. From the decision:

Following defendant's Batson objection, the prosecutor explained that he was exercising the peremptory challenge because of the age and lack of "lifelong experience" of the juror. "[W]hile age is, facially, a race-neutral reason for a peremptory challenge to a juror, an explanation based upon age can become pretextual if it bears no relationship to the facts of the case . . ., or if other jurors of a similar age are not objected to on that ground." Here, the fact that the prospective juror at issue was 19 years old bore no relationship to the facts of the case. Further, the prosecutor did not exercise a peremptory challenge to exclude a 22-year-old white male prospective juror who had a similar background with respect to his education and living arrangement. We thus conclude that the prosecutor's explanation was pretextual, and we reverse the judgment of conviction and grant a new trial.

(People v Wilmot, 2006 NY Slip Op 08391 [citations omitted].)

This decision points up the importance of a thorough Batson challenge at the trial level--wherever possible, defense counsel should point out that the People's supposed "race neutral" explanation has not been consistently applied by the People.

CA: work release day reporting = "incarceration"

People v Cagle, 20906 NY Slip Op 08633 [available here]

The Court of Appeals holds today that the day reporting (or work release) portion of a defendant's sentence counts as "incarceration", and such periods count as part of the tolling period when calculating the 10 years between felony convictions for purposes of recidivist sentencing. (See People v Cagle, 2006 NY Slip Op 08633.) From the majority decision (written by Chief Judge Kaye):

An inmate in a day-reporting program, under the applicable statutes and regulations, enjoys "extended bounds of confinement." An approved inmate who has successfully participated in a work release program, completed furloughs to an approved residence and is either within six months of becoming eligible for parole or has one year or less to be served under his sentence, may be assigned from a work release facility to a residential treatment facility to participate in a program of continued employment. While residing at an approved residence, the inmate is required to report to the facility or other designated reporting location, to undergo frequent drug tests and, where appropriate, to participate in other rehabilitative programs.

Moreover, before acceptance into a day-reporting program, an inmate must sign both a memorandum of agreement and copy of the day-reporting rules. These documents specify that participation in the program "is a privilege which may be revoked at any time" and that the inmate "remain[s] in the custody of [DOCS]." The program imposes reporting duties and travel restrictions, including prior approval requirements for any method of transportation the inmate uses, for obtaining a driver's license and for having a motor vehicle. Permission is also required before participants take any medication (except in exigent circumstances), obtain a credit card or enter into a contract, and they must surrender the full amount of their employment earnings to the day reporting center for documentation and proper deductions. Thus, inmates in day-reporting programs are merely granted the revocable privilege of serving their sentences of imprisonment under less strict conditions of supervision than other prisoners under lock and key.

Focus on the plain purpose of Penal Law § 70.06 also leads us to reject defendant's argument. The statute is intended "to deter recidivism by enhancing the punishments of those who, having been convicted of felonies, violate the norms of civil society and commit felonies again." To avoid enhanced punishment, prior felons must demonstrate their ability to live within the norms of civil society for ten years. Plainly, time spent serving a sentence of imprisonment does not satisfy this requirement. That the Legislature has spoken in terms of time "incarcerated" does not compel us to limit the term to "behind bars." Rather, we conclude that defendant should be considered incarcerated until he completed his sentence of imprisonment for the prior crime and was released into parole.

(Id. at __.)

Judge Smith dissented, noting that "'incarcerated is not an ambiguous word. It means locked up in prison," and therefore defendants who participate in work release programs and do not commit new felonies while doing so should get credit towards the "ten year between felonies" time period. (Id. at __.)

The majority's opinion affirms the Fourth Department's earlier decision in the case (see my previous post here).

Justice Scudder named presiding justice of the Fourth Department

You can read the Governor's press release annoucing Justice Scudder's promotion here.

CA: Recent "depraved indifference" decisions not retroactive

Policano v Herbert, 2006 NY Slip Op 08284 [available here]

In response to certified questions from the Second Circuit, the Court of Appeals holds that the Court's recent "depraved indifference" decisions--severely narrowing those factual scenarios supporting a "depraved indifference" murder conviction and holding that "depraved indifference" is a culpable mental state--should not be applied retroactively. From the decision:

[W]e must weigh three factors to determine whether a new precedent operates retroactively: the purpose to be served by the new standard; the extent of the reliance by law enforcement authorities on the old standard; and the effect on the administration of justice of a retroactive application of the new standard. The second and third factors are, however, only given substantial weight "when the answer to the retroactivity question is not to be found in the purpose of the new rule itself." "Thus, where otherwise there could be a complete miscarriage of justice, current constitutional standards that go to the heart of a reliable determination of guilt or innocence have been substituted for those in effect at the time of trial."

This is not such a case. The purpose of our new interpretation of "under circumstances evincing a depraved indifference to human life" is to dispel the confusion between intentional and depraved indifference murder, and thus cut off the continuing improper expansion of depraved indifference murder. Moreover, in the words of the concurring judges in Suarez, the goal is to "make future homicide prosecutions more sustainable, increasing the likelihood that defendants who are proven beyond a reasonable doubt to have committed murder will be properly held to account for that crime." Further, "[d]efendants who commit[] vicious crimes but who may have been charged and convicted under the wrong section of the statute are not attractive candidates for collateral relief after their convictions have become final." In short, non-retroactivity poses no danger of a miscarriage of justice.

Finally, the other two Pepper factors strongly favor non-retroactivity. For two decades prosecutors relied on Register's objectively determined degree-of-risk formulation when making their charging decisions. In addition, retroactive application would potentially flood the criminal justice system with CPL 440.10 motions to vacate convictions of culpable intentional murderers who were properly charged and convicted of depraved indifference murder under the law as it existed at the time of their convictions.

(Policano, 2006 NY Slip Op 08284 [2006].)

New decisions from the Fourth Department tomorrow.

CA: City Court jury pools can be comprised of County residents

In re Oglesby v McKinney, 2006 NY Slip Op 08277 [available here]

City court defendants are not entitled to a jury made up solely of city residents; rather, "jurors for a criminal trial in a City Court may be selected from the residents of the county in which the city is located, including those who are not city residents." (Oglesby, 2006 NY Slip Op 08277.) So holds the Court of Appeals, in a decision affirming the Fourth Department (see my previous post here). The Court held that section 500 of the Judiciary Law "clearly does not command that all juries be selected county-wide, it seems to imply that selection from the county will be the norm, to which exceptions are possible." (Id.) The Court also noted that requiring City Court jury pools to be drawn solely from city residents would decrease the number of city residents available for felony jury pools in County Court--"[i]f all City Court jurors had to be Syracuse residents, the likely result would be to divert some Syracuse jurors from felony trial to misdemeanor trials in City Court--to the disappointment of those Syracuse defendants in felony cases who would prefer jurors from their home town." (Id.)

AD3: intoxication can negate "depraved indifference" mental state

People v Coon, 2006 NY Slip Op 07925 [3d Dept 2006] [available here]

Breaking with its prior precedent, the Court of Appeals recently held that "depraved indifference" is a culpable mental state. (See People v Feingold, 2006 NY Slip Op 05233 [previous post here].) In a decision handed down last week, the Third Department held that a necessary implication of the Court of Appeals' holding in Feingold is that intoxication can render a defendant incapable of forming the "depraved indifference" mens rea, and a defendant can now claim intoxication as a partial defense to crimes having "depraved indifference" as the culpable mental state. From the Third Department's decision:

After a nonjury trial, County Court's verdict included findings that defendant failed to prove the defense of mental disease or defect by a preponderance of the evidence, but that because of his voluntary use of crack cocaine, he suffered an atypical idiopathic reaction to the substance such that, at the time of the attack, he was experiencing cocaine intoxication delirium. As a result, County Court found that defendant was unable to form any specific criminal intent necessary to support either the intentional assault or criminal possession of a weapon charges. County Court also found that defendant's actions were reckless and that since voluntary intoxication does not negate recklessness, defendant was guilty of depraved indifference assault. [...]

[A]s defendant was too intoxicated to form a specific criminal intent, he also would be incapable of possessing the culpable mental state necessary to prove depraved indifference.

(Coon, 2006 NY Slip Op 07925.)

The Court also held that, given the nature of the assault (essentially a one-on-one stabbing), the evidence was insufficient to "establish [the] wanton cruelty, brutality or callousness" required for depraved indifference. (Id. at __.)

New decisions from the Fourth Department November 17, 2006.