Jurisdictional defect that could have been raised on direct appeal cannot be raised by 440.10 motion
People v Cuardado, 2007 NY Slip Op 01197 [available here]
The defendant in Cuardado waived indictment and agreed to plead guilty to a Superiour Court Information (SCI) charging him with Assault in the First Degree. (Cuardado, 2007 NY Slip Op 01197.) The waiver of indictment failed "to adhere to the statutory requirements", presenting a jurisdictional defect. On direct appeal, however, defendant argued only that his sentence was harsh and excessive, and did not raise the jurisdictional defect. Defendant waited 11 years to raise the jurisdictional issue by way of a 440.10 motion to vacate his guilty plea. (Id. at __.)
Of course, CPL 440.10[2] mandates that a court "must" deny a 440.10 motion if the issue could have been raised on direct appeal. The First Department holds in Cuardado that this rule applies to jurisdictional defects--if the defect could have been raised on direct appeal, a 440.10 motion seeking vacatur of a conviction on jurisdictional grounds must be denied. (Id. at __.)
Presiding Justice Andrias filed a lengthy dissent, arguing that the jurisdictional defect is nonwaivable and the Legislature cannot impose "procedural barriers to a defendant asserting such non-waivable right." (Id. [ANDRIAS, P.J., dissenting.)
Defendant pinned to the ground and handcuffed is not under de facto arrest
People v Medina, 2007 NY Slip Op 01210 [available here]
Upholding what the Court calls a "lawful investigatory detention", the First Department in Medina holds that a defendant's "detention was not transformed into an arrest when the police ordered defendant out of his vehicle, placed him on the ground in handcuffs, and held (sic) for approximately 30 minutes, since all of these police actions were justified by the particular exigencies involved in the investigation." (Medina, 2007 NY Slip Op 01210.) The Court does not explain what those "particular exigencies" might be. The Court also does not explain why it fails to mention to the test for whether someone is under full de facto arrest for purposes of triggering a probable cause analysis--whether a reasonable, innocent person in defendant's position would have felt free to leave. (See People v Hicks, 68 NY2d 234.) Indeed, it is hard to see how a person taken to the ground and handcuffed would have felt free to leave, but Medina continues a trend in the Appellate Divisions of upholding truly restrictive measures as so-called "investigatory detentions" based on reasonable suspicion. The result is a further eroding of Fourth Amendment protections for New York citizens.
Gunshot victim's statement made in ambulance neither "dying declaration" nor "excited utterance"
People v Figueroa, 2007 NY Slip Op 01216 [available here]
During his murder trial, defendant wanted to offer evidence that "while en route to the hospital the deceased said to the officer, 'I don't know who did this to me. I don't know nothing.'" (Figueroa, 2007 NY Slip Op 01216.) While acknowledging that "the deceased made a remark to a witness immediately after the shooting that might be viewed as suggesting a sense of impending death," the First Department refused to characterized the statement as a dying declaration because "at the time the statement was made, the condition of the deceased, who sustained a gunshot wound to his abdomen, appeared to have stabilized." (Id.) Fair enough. But the Court went further, holding that the statement did not qualify as an excited utterance because the "record indicates that the statement was the product of 'studied reflection.'" (Id.) Now, the decision does not go into details, so maybe the gunshot victim had a certain Zen mindset that allowed him to transcend the anxiety one would naturally feel upon being gutshot. But I have a sneaking suspicion that the holding in this case might have been different if, instead of saying he didn't know who shot him, the victim had said "Figueroa did it." (People v Sykes, 26 AD3d 203 [1st Dept 2006]; People v Bryant, 8 AD3d 151 [1st Dept 2004].)
