CA: statement made by assault victim in response to officer in "emergency" setting is not "testimonial" hearsay

People v Bradley, 2006 NY Slip Op 09501 [available here]

Responding to a 911 report of an assault, an officer arrived at "the door of an apartment and was met there by [the victim], who was visibly shaken, had blood on her face and clothing, was bleeding profusely from one hand, and walked with a noticeable limp." (Bradley, 2006 NY Slip Op 09501.) The officer "asked her what happened", and the victim told the officer that "her boyfriend threw her through a glass door." (Id.) The Court of Appeals held that the victim's response to the officer's question was not testimonial hearsay under Crawford v Washington and its more recent progeny because the "primary purpose of the interrogation [was] to enable police assistance to meet an ongoing emergency" and was not the product of a structured police questioning designed to generate evidence for a criminal prosecution. (Id., citing Davis v Washington, 126 S Ct 2266 [2006] [bracketed material in original].) After first discussing the Supreme Court's recent decision in Hammon (statements were considered "testimonial" when made by assault victim during detailed interview conducted after the crime was completed and the situation was secure) and Davis (statements made to 911 operator describing ongoing assault were not testimonial), the Court held that the statements at issue fell closer to the Davis "ongoing-emergency"-type scenario and were thus not testimonial:

The facts of this case are between those in Davis and Hammon: [the victim] was neither describing a present event as it occurred, nor responding to detailed questioning in a calm, secure setting. But under the test the Supreme Court stated in Davis, [the victim's] statement was clearly not testimonial. It was "made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation [was] to enable police assistance to meet an ongoing emergency."

When [the officer], responding to a 911 call, arrived at [the victim's] door and was met by an emotionally upset woman smeared with blood, his first concern could only be for her safety. His immediate task was to find out what had caused the injuries so that he could decide what, if any, action was necessary to prevent further harm. Asking [the victim] "what happened" was a normal and appropriate way to begin that task, and the officer promptly entered the apartment, as an officer dealing with an emergency would be expected to do.

(Id. at __.)

The Bradley decision is a relatively straight-forward application of the federal confrontation clause as re-interpreted by Crawford, Davis, and Hammond. Of particular interest is that the Bradley Court, while acknowledging that the appellant was basing his arguments on both the federal Constitution and the New York Constitution and its confrontation clause, also noted that appellant "does not suggest that the two be interpreted differently, and we therefore accept the holdings of Crawford and Davis as the basis for our decision under both Constitutions." (Id. at __.) It would be interesting to see what the Court of Appeals would do with an argument that the State Constitution affords greater protections under its Confrontation Clause than does the federal Constitution, and therefore the definition of "testimonial" should be broader under the State Constitution. The Court of Appeals might be tempted to set its own (broader) definition of "testimonial" as a practical matter, if for no other reason than to bring stability to this area of law and insulate the courts of New York from the periodic disruptive refinements of the "testimonial" standard that emanate from the United States Supreme Court.

AD4: restitution must be part of plea agreement

People v Kistner, 2006 NY Slip Op 08516 [available here]

People v Appleberry, 2006 NY Slip Op 08434 [available here]

If a defendant is sentenced to pay restitution that was not included as a term of his or her guilty plea, then the plea must be vacated and the matter remanded to give the defendant an opportunity to withdraw the plea. (See Kistner, 2006 NY Slip Op 08516; Appleberry, 2006 NY Slip Op 08434.) This issue survives a waiver of the right to appeal, and it remains one of the few issues that the Fourth Department will reliably reach in the interest of justice. (See id.)

AD4: defendant’s statement that he was acting “in self-defense” during plea colloquy required further inquiry

People v Ponder, 2006 NY Slip Op 08513 [available here]

During his colloquy upon a guilty plea to Assault in the First Degree, the defendant “stated that the victim, without any provocation by defendant, struck defendant in the head with a bottle and put him in a choke hold. Defendant stated that, ‘in self-defense,’ he pulled out a gun and fired, but stated that he did not intend to shoot the victim.” (Ponder, 2006 NY Slip Op 08513.) Although defendant did not make a motion to vacate his plea, the Fourth Department nevertheless reversed, agreeing that

this is one of those rare cases where preservation is not required because “the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea”. […] Defendant’s colloquy negated the essential element of intent and also raised the possibility of a justification defense. Thus, the court had a “duty to inquire further to ensure that defendant’s guilty plea [was] knowing and voluntary.”

(Id. at __.)

It is incredible that the trial court did not try to clean up this plea colloquy before accepting the guilty plea.

AD4: fingerprint affidavit not admissible at PVFO hearing

People v Wright, 2006 NY Slip Op 08459 [available here]

Applying People v Williams (see my previous post here) for the first time, the Fourth Department holds in Wright that “the court erred in admitting the affidavit of the People’s fingerprint expert at his persistent felony offender hearing.” (See Wright, 2006 NY Slip Op 08459, citing Crawford v Washington, 541 US 36, 51-52.) Unfortunately and also like in Williams, the court found that the remaining proof was sufficient to establish the defendant’s prior felony convictions. (Id.)

AD4: testimony that officer was disoriented, “saw stars” and was in “great pain” enough to establish physical injury element of assault conviction

People v Gerecke, 2006 NY Slip Op 08441 [available here]

The People can sustain a conviction for Assault in the Second Degree by establishing that the alleged assault victim suffered a “physical injury”; a “physical injury” is defined in part as an injury causing “substantial pain.” (See Gerecke, 2006 NY Slip Op 08441.) In Gerecke, the assault victim was a police officer, who testified that “upon being being struck in the head by defendant, he ‘[saw] stars’ and was temporarily disoriented . . . [h]e further testified that it was the hardest blow that he had ever sustained and that he was in great pain.” (Id.) This would seem fairly flimsy proof to sustain an assault conviction--appellate courts usually require a bit more to establish a physical injury. (See, e.g. People v Rodriguez, 158 AD2d 376 [1st Dept 1990].) But the Fourth Department held the cop’s testimony was sufficient:

We conclude that the jury was entitled to credit the testimony of the officer and thus to find that he suffered substantial pain. The failure of the officer to seek medical treatment or to take off any time from work is not dispositive in determining whether he sustained a physical injury, inasmuch as “pain is subjective and different persons tolerate it differently.”

(Id. [citations omitted].)

The Court did hold that defendant’s conviction for Obstructing Governmental Administration in the Second Degree was not supported by legally sufficient evidence, where the indictment and bill of particulars alleged that the defendant interfered with an officer attempting to arrest the defendant’s “son Brandon”, and the proof at trial established that the police were in fact trying to arrest someone other than Brandon when defendant interfered. (See id.)

AD4: failure to give "limiting instruction with respect to the statement of a nontestifying codefendant" is fundamental error requiring reversal

People v Pichardo, 2006 NY Slip Op 08390 [available here]

At his trial on drug charges, the People offered and the trial court received the statement of a non-testifying co-defendant as evidence against defendant. No limiting instruction was requested, and none was given. Characterizing the failure to give a limiting instruction in this situation as "fundamental error", the Fourth Department reversed even though the instruction was not requested at trial by the defendant. From the decision:

Reversal is required, however, because Supreme Court failed to give a limiting instruction with respect to the statement of a nontestifying codefendant. Even assuming, arguendo, that the statement was admissible, we note that, as the Supreme Court has written, "the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when . . . the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Although defendant did not request a limiting instruction, we conclude under the circumstances of this case that the failure to give such an instruction is a fundamental error that warrants reversal and a new trial.

(Pichardo, 2006 NY Slip Op 08390.)

From a Court usually as preservation-minded as the Fourth Department, it is nice to see a decision characterizing this error as fundamental and therefore not requiring preservation for review.

AD4: removing center console of vehicle does not "impair the structural integrity of vehicle" and is covered by general consent to search

People v Reed 2006 NY Slip Op 08588 [available here]

Over a year ago, the Court of Appeals held that a suspect's general consent to a police vehicle search did not cover police action that impaired the structural integrity of the vehicle. (See People v Gomez, 2005 NY Slip Op 07828 [general consent to search not broad enough to cover police destroying parts of car with a crowbar].) In Reed, the Fourth Department confronted a less egregious fact pattern--rather than destroying parts of the car, the police disassembled the center console of the car by removing some screws, and reassembled the console when the search was complete. The Fourth Department upheld the search on defendant's general consent; from the decision:

Here, defendant gave the police a broad consent to search his "1991 Toyota." Defendant was present during the search of the vehicle and did not object to the scope of the search, nor did the search impair the structural integrity of the vehicle. The record establishes that the police did not break the console in order to search beneath it and that the screws securing the center column, some of which were broken before the police removed them, were not the original screws from the factory where the vehicle was manufactured.

(Reed, 2006 NY Slip Op 08588.)

The Fourth Department has thus set up a distinction between physically "destroying" a car and simply disassembling (and then reassembling) it. I'm not sure this gets at the question, i.e. whether a defendant giving a general consent to search would expect the police to start disassembling his vehicle. Even if the police can and do put the car back together at the end of the search, how far can the police go on a general consent? Under the Fourth Department's reasoning in Reed, there does not seem to be any upper limit on the degree of disassembly covered by a general consent. As long as the police are careful not to break anything and the suspect does not object while the car is being taken apart, it seems under Reed the search would be valid.

AD4: defendant telling police he has "nothing to say" = invoking right to remain silent

People v Reid, 2006 NY Slip Op 08458 [available here]

Upon being Mirandized and asked if he would waive his rights and speak to police, the defendant in Reid said he had "nothing to say." (Reid, 2006 NY Slip Op 08458.) The police pressed on with questioning; the Fourth Department held that defendant's statement (that he had "nothing to say") was the equivalent of invoking his right to remain silent, and the police "failed to 'scrupulously honor []' defendant's right to remain silent" by continuing the interrogation. (Id.) The Fourth Department nevertheless found the error harmless.

AD4: phony spam emails are not "forged instruments" and a computer used to send spam is not a "forgery device"

People v Carmack, 2006 NY Slip Op 08490 [available here]

Taking New York's anti-forgery laws where they were never intended to go, a prosecutor in Erie County charged Mr. Carmack with Forgery in the Second Degree and Criminal Possession of a Forgery Device for sending "multiple emails for his computers [using] a computer program that made it appear that they were sent from the email address of another person or entity." (Carmack, 2006 NY Slip Op 08490.) The emails were pretty typical spam, described by the Court as "solicitations for computer programs, dietary supplements and other products [...]." (Id. at __.)

The Fourth Department rightfully reigned this charging practice in, holding that spam emails "do not constitute deeds, wills, codicils, contracts, assignments, commercial instruments or credit cards" and do not involve any "'legal right, interest, obligation or status'", and therefore do not fall within the statutory definition of a "forged instrument" necessary to sustain a conviction for Forgery in the Second Degree. (See id.; Penal Law 170.10[1].)

The Fourth Department likewise reversed defendant's conviction for Criminal Possession of a Forgery Device, nothing that a device must be "specifically designed for use in counterfeiting or otherwise forging written instruments" to qualify as a "forgery device", and that computers at issue, while capable of being used to generate forged documents, were not specifically designed for that purpose. (See Carmack, 2006 NY Slip Op 08490.)

AD4: massive overkill = intentional killing or no other

People v Rodriguez, 2006 NY Slip Op 08354 [available here]

The defendant in Rodriguez left very little to chance he set out to kill his victim--"the victim was shot twice in the head, stabbed six times in the neck, shoulder and abdomen, and struck 13 times in the head with a hammer, causing four skull fractures . . . after the shootings, stabbings, and beatings, the victim was left alone in a burning house." (Rodriguez, 2006 NY Slip Op 08354.) Given those facts, the Fourth Department had little trouble concluding that this was an intentional killing or no other, and that "County Court erred in submitting the depraved indifference murder count to the jury." (Id.)