AD4: defense counsel must (still) make specific TOD and renew it at the close of all proof to preserve sufficiency arguments on appeal

People v Skupien, 2006 NY Slip Op 09890 [available here]

People v Picente, 2006 NY Slip Op 09806 [available here]

Once again driving home what should (by now) be a settled matter of practice for New York criminal defense attorneys, the Fourth Department twice this term found legal sufficiency arguments unpreserved for review based on defense counsel's failure to make a specific motion for a trial order of dismissal and/or failing to renew that motion at the close of all proof. (See Picente, 2006 NY Slip Op 09806 [legal sufficiency argument not preserved where defense counsel's TOD motion "did not seek dismissal of the counts at issue on [the] ground" advanced on appeal]; Skupien, 2006 NY Slip Op 09890 ["Defendant failed to specify the basis for seeking dismissal of the remaining counts and therefore failed to preserve for our review his contention that the evidence is legally insufficient with respect to those counts"].)

AD4: defense counsel taking adverse position to client at sentencing = ineffective assistance of counsel

People v Hunter, 2006 NY Slip Op 09835 [available here]

In this short decision, the Fourth Department reserved decision and sent the matter back down for assignment of new counsel where trial defense counsel took a position adverse to his client's motion to take back his plea. At sentencing, the defendant told the court that "defense counsel had induced him to plead guilty by informing him that a suppression hearing could be conducted after the plea was entered." (Hunter, 2006 NY Slip Op 09835.) Defense counsel denied telling his client any such thing. The Fourth Department held that defense counsel was not at liberty to act as a witness against his client, and therefore the court "should have assigned a different attorney before determining defendant's motion." (Id. at __.)

AD4: Wade hearing necessary where showup conducted after fleeting initial encounter

People v Terborg, 2006 NY Slip Op 09750 [available here]

In a decision applying the recent Court of Appeals decision in People v Boyer, the Fourth Department reversed defendant's conviction based on the trial court's refusal to conduct a Wade hearing to test a police officer's identification of the defendant during a showup. The initial police viewing was "fleeting, unreliable and susceptible of misidentification", and therefore the narrow "confirmatory identification exemption" for police officer showups did not apply. (Terborg, 2006 NY Slip Op 09750.)

The Fourth Department also reversed defendant's conviction for criminal mischief as against the weight of the evidence becuase "the jury failed to give the evidence the weight it should be accorded on the issue of defendant's intent. Although defendant may have acted recklessly with respect to the result, i.e. the damage to the victim's car, the evidence weighs heavily in favor of a finding that defendand did not specificallly intend to damage the car." (Id. at __.)

AD4: sentencing court's statement that it was "bound" by People's sentencing recommendation = failure to exercise discretion

People v Dowdell, 2006 NY Slip Op 09911 [available here]

Upon defendant's plea of guilty, the People agreed to recommend a sentence of less than 5 to 15 years to the court if defendant cooperated. Apparently, the defendant did not cooperate, and the District Attorney did not make the sentencing recommendation. Based on the District Attorney's refusal to recommend a sentence less than 5 to 15 years, the sentencing court "indicated that it was bound to impose the sentence of 5 to 15 years", i.e. the sentencing court did not think it was allowed to impose a lesser sentence because the People did not ask for one. The Fourth Department reversed, noting that the sentencing decision is within the "'court's discretion . . . made only after careful consideration of all facts available at the time of sentencing.'" (Dowdell, 2006 NY Slip Op 09911.) Abdicating that discretion to the District Attorney is reversible error.

AD4: upward departure in SORA classification cannot be based on factors already counted in RAI

People v Perkins, 2006 NY Slip Op 09748 [available here]

People v Foley (no, not THAT Foley), 2006 NY Slip Op 09853 [available here]

In two cases handed down last term, the Fourth Department held that an upward departure in a SORA classification proceeding cannot be based on factors taken into consideration elsewhere in the Risk Assessment Instrument ("RAI"). Basically, a sex offender is assessed points based on different factors that could indicated a risk of reoffending--if an offender's victims are children under a certain age, he or she gets assessed points; if an offender used force, he or she gets points, etc. One of the "risk factors" contained in the RAI is the offender's use of drugs or alcohol (i.e. he or she gets assessed points if there is a history of drug or alcohol abuse). Once all of the factors in the RAI are considered, the points are tallied up, and the total points dictate what category the offender falls into. In some cases, the court can impose an "upward departure" if the offender's RAI score is low but there is nevertheless a high risk of reoffense based on factors the RAI does not consider.

The court's discretion to impose an "upward departure" is not unlimited, however. In Perkins, the assessing court imposed on upward departure from a level two (the offender level indicated by the point total from the RAI) to a level three based on the offender's history of mental health issues and drug use. The Fourth Department found this to be error--"The court's reliance on defendant's history of drug and alcohol abuse to justify the upward departure from the presumptive risk level was improper because defendant's history of substance abuse was already taken into account when defendant was assessed maximum points for that history in the risk assessment instrument." (Perkins, 2006 NY Slip Op 09748.)

The Court reached a similar conclusion in People v Foley, although the Court did not indicate what specific factors were used for the upward departure that had already been counted in the RAI. "Here, the only factors cited by the Board and the court in justifying a departure from the presumptive risk level are factors for which defendant was assessed points in the RAI." (Foley, 2006 NY Slip Op 09853.)

AD4: 911 report of car alarm and "argument" does not establish "emergency" situation justifying warrantless search

People v Fravel, 2006 NY Slip Op 09725 [available here]

At about 4 a.m., police arrived at a parking lot in response to a 911 report "that a car alarm was sounding and that men were arguing next to a truck [...]." (Fravel, 2006 NY Slip Op 09725.) No car alarm was sounding, and nobody was near the truck. The police looked in the bed of the pickup truck and saw a laptop computer, a notebook, a "utility bill" and a "cloth case". (Id.) The items were removed from the truck and taken back to the police station, where numerous forged documents were found in the cloth case. (Id. at __.) The trial court refused to suppress the forged documents, instead holding that the police were responding to an "emergency situation" that justified the seizure of the items from the pickup truck without probable cause. The Fourth Department reversed, holding that "there is no indication in the record that the police officers who responded to the 911 call perceived the requisite threat to life or property. Because the People failed to meet their burden of justifying the warrantless search based on their contention that there was 'an emergency at hand', the court erred in refusing to suppress the physical evidence seized during the warrantless search of the pickup truck." (Id. at __.)

AD4: defense counsel not entitled to a one-day adjournment to prepare summation

People v Martin, 2006 NY Slip Op 09769 [available here]

After the proofs closed on his client's trial on various counts of burglary, rape and sex abuse, defense counsel asked for a one-day adjournment to prepare his summation. Any regular defense practitioner can tell you how that went over--the request was denied, and defense counsel was told to prepare his summation over lunch. Defendant on appeal argued that the trial court abused its discretion in failing to grant the adjournment. The Fourth Department disagreed, noting that the trial court told defense counsel the day before to be prepared to sum up the next "afternoon", "and the record establishes that the court nevertheless adjourned the proceedings for an additional one-hour period after a nearly two-hour recess in order to permit defense counsel to complete his summation." (Martin, 2006 NY Slip Op 09769 [available here].)

AD4: prosecutor's failure to turn over Brady material requires reversal

People v Harris, 2006 NY Slip Op 09787 [available here]

In a decision short on facts, the Fourth Department reversed Mr. Harris' robbery and attempted murder convictions based on the trial prosecutor's Brady violation. The decision only describes the violation as a failure to turn over "exculpatory material obtain by an investigator for the Monroe County District Attorney." (Harris, 2006 NY Slip Op 09787.) The decision does not describe the nature of the material withheld, but the briefs filed by the appellant and respondent at the Fourth Department fill in some of the blanks. Essentially, the shooting victim told his mother that "June" shot him, and mom testified to that effect at trial. In a surprise move, the People then called the victim's girlfriend, who testified that Mr. Harris was a classmate at Franklin High School, and that she knew him as "June." Thus, the girlfriend's testimony provided a critical link between the mom's testimony (that her son said "June" shot him) and Mr. Harris (who the girlfriend knew as "June" from their time together at Franklin High School).

Turns out, the District Attorney's office sent an investigator to Franklin High to interview the guards there in an attempt to confirm the girlfriend's story. The investigator wrote up a report detailing the results of the investigation--the guard interviewed stated flatly that Mr. Harris was never a student at Franklin, was never in the building, and was not one of the "Junes" who attended Franklin High School. The report was never turned over by the trial prosecutor (then Assistant District Attorney Clifford Owens). The existence of the investigator's report was not discovered until defense investigators interviewed the guard after the jury's guilty verdict.

AD4: error to discharge potential juror without giving defense counsel a chance to voir dire

People v Habte, 2006 NY Slip Op 09790 [available here]

Under questioning by the prosecutor, a potential juror "appeared to indicate that he could not convict upon the testimony of one witness, even if that witness was credible, stating, 'We're supposed to take everything into consideration.'" (Habte, 2006 NY Slip Op 09790.) The trial court immediately discharged the juror for cause, without first giving defense counsel a chance to question the juror. The Fourth Department, while noting that "the trial court has broad discretion to control and restrict the scope of voir dire examination", nevertheless reversed Mr. Habte's conviction based on the trial court's failure to allow defense counsel an opportunity to rehabilitate the potential juror. "[A]ny restrictions imposed on voir dire must afford defense counsel a fair opportunity to question prospective jurors about relevant matters. In our view, the response of the potential juror did not establish that he was incapable of being fair and impartial and defense counsel was thus denied the opportunity to question the potential juror about relevant matters." (Id. [citations omitted].)

Return to sender

People v Gandy, 2006 NY Slip Op 09740 [available here]

In this short decision, the Fourth Department held that the lower court's determination that the defendant posed a high risk of reoffending and that he was a "threat to the public safety" was correct (and therefore an upward departure to a level three SORA risk classification was justified) where the defendant sexually abused a child over a two year period and "while in prison, defendant was disciplined for attempting to mail his semen to an unknown recipient." (Gandy, 2006 NY Slip Op 09740.)

AD4: permission to "check" or "look" into vehicle does not equal consent to full vehicle search

People v Hall, 2006 NY Slip Op 09751 [available here]

After being pulled over by the police, Mr. Hall was asked if the officers "could check the vehicle or look in the vehicle." (Hall, 2006 NY Slip Op 09751.) Hall agreed, and the police officers fully searched the car and found a gun in the trunk. (Id.) The trial court suppressed the gun, and the Fourth Department affirmed. The Court held, "the People established only that the officers asked defendant if they could check the vehicle or look in the vehicle. Consent to check or look in a vehicle is not consent to search it." (Id.)

CA: defendant's direct requests to proceed pro se, both orally and in writing, were "equivocal"

People v Gillian, 2006 NY Slip Op 09662 [available here]

Prior to his trial on drug charges, defendant Dennis Gillian asked the court to discharge his assigned attorney because of an alleged conflict of interest. The motion was denied. A month later, Gillian again "advised the court that he wanted to proceed pro se because assigned counsel had 'done nothing' for him and had failed to make certain motions." (Gillian, 2006 NY Slip Op 09662.) The trial court again denied the application. "Two days later, defendant once again moved in writing for reassignment of counsel or, in the alternative, the opportunity to proceed pro se, citing assigned counsel's 'incompetence' and purported retaliatory conduct against defendant for requesting new counsel." (Id.) Two weeks later, a new attorney was assigned to represent Mr. Gillian after the prosecutor conceded that his original assigned attorney had a conflict of interest. (Id.) Turns out the new attorney had a conflict as well; a third attorney was assigned, and this one was just right. Gillian voiced no objection to the final attorney appointed.

At issue before the Court of Appeals was whether reversal was required based on the trial court's denial of Mr. Gillian's request to proceed pro se. The Appellate Division affirmed the conviction because, while the request to proceed pro se was unequivocal, Gillian "abandoned his request to represent himself" by proceeding to trial with the third assigned attorney. (Id. at __.) The Court of Appeals (in a majority decision written by Judge Pigott) affirmed as well, but went further to hold that "defendant's request to represent himself was not clear and unequivocal." (Id. at __.) By the majority's thinking, Gillian's request to proceed pro se was a fall-back position; what Gillian really wanted was a new attorney, as evidence by the fact that his protests stopped once he received an attorney to his liking. Given that his request to proceed pro se was only made once his request for new counsel was originally denied, the majority reasoned that the request to proceed pro se was equivocal. (Id. at __.) Absent an unequivocal request to proceed pro se, the trial court could not be faulted for denying the request.

Justice Smith concurred, but would have affirmed for the reasons settled on at the Appellate Division, i.e. Gillian's request to proceed pro se was unequivocal and should have been granted, but any error was cured by the ultimate appointment of an attorney that met Mr. Gillian's approval. As Justice Smith noted, "If, having obtained the remedy he originally preferred, defendant still wanted to represent himself, he should have said so." (Id. at __ [SMITH, J., concurring].)

Nicole at Sui Generis has a lengthy post on this decision here.

As a side note, Indignant Indigent has been nominated for numerous 2006 Public Defender Blogger Awards over at Public Defender Stuff. Vote early and often (or just check out some of the great blogs that have also been nominated)!

CA: Rochester "aggressive panhandling" law does not violate free speech

People v Barton, 2006 NY Slip Op 09499 [available here]

Back in 2004, the Rochester City Council approved a municipal code provision that made it a crime to engage in "aggressive" panhandling, defined as standing "on a sidewalk or alongside a roadway" and soliciting from "any occupant of a motor vehicle [...]." (Barton, 2006 NY Slip Op 09499.) The term "solicit" was defined broadly, and included "the spoken, written or printed word or such other acts or bodily gestures as are conducted in furtherance of the purposes of immediately obtaining money or any other thing of value." (Id.)

The code provision was challenged as a violation of constitutionally protected free speech. It was argued that the provision was overbroad because, on its face, the provision would apply not only to aggressive bums but to volunteers soliciting charitable donations and the like. The Court of Appeals disagreed, and instead held that the code provision passed constitutional muster because it was "narrowly tailored" to address a "significant" problem (i.e. "individuals seeking handouts from occupants of motor vehicles on a public thoroughfare or place, thereby creating a hazard and slowing or snarling traffic"), and the restriction left "open ample alternative avenues to communicate any message of indigency or need through begging." (Id.)