AD3: Decisions for March 8 & 15, 2007

All's quiet in Albany. Two decision packets, one notable decision.

People v Mccloud, 2007 NY Slip Op 10991 [available here]

Defendant appealed from an Order served on him March 30, 2006. Instead of filing a regular notice of appeal, the defendant asked the Third Department directly for permission to appeal. This request was made on April 24, 2006, i.e. within the 30 day period to file a notice of appeal. (Mccloud, 2007 NY Slip Op 01991.) The Third Department denied his request "because he was entitled to take an appeal as a matter of right." (Id. at __.) But by now defendant's time to file a notice of appeal had expired, and his notice of appeal was not filed until May 15, 2006. The Third Department allowed the appeal; "[u]nder the unusual circumstances of this case, we will deem defendant's motion for leave to appeal as a notice of appeal." (Id. at __.)

AD2: Decisions for March 6 & 13, 2007

People v Lampon, 2007 NY Slip Op 02140 [available here]

The Second Department held the defendant's challenge to the sufficiency of the evidence to support his depraved indifference murder conviction was not properly preserved where trial defense counsel argued only that the count should be dismissed because "the defendant's conduct was not consistent with 'recklessness.'" (Lampon, 2007 NY Slip Op 02140.) "There was evidence of intoxication presented at trial which the jury could have found negated the defendant's intent to kill without negating the defendant's reckless state of mind." (Id. at __.) Trial defense counsel did not go on to argue that the defendant lacked the required "depraved indifference" mens rea, and the Second Department declined to reach the issue in the interest of justice. (Id. at __.)

People v Benson, 2007 NY Slip Op 01891 [available here]

People v Sebastian, 2007 NY Slip Op 01903 [available here]

The Second Department continues to give defendants specific performance of their plea terms; if no postrelease supervision is discussed at plea or sentencing, then the postrelease supervision is not part of the sentence and the defendant does not have to comply with it. (Benson, 2007 NY Slip Op 01891 ["Neither the sentencing minutes nor the court's order of commitment mentioned the imposition of any period of post-release supervision. Therefore, the sentence actually imposed by the court never included, and does not now include, any period of post-release supervision."].) The Fourth Department's decisions in this area are different; if postrelease supervision is mandatory, then failure to impose the postrelease supervision at sentencing renders the sentence illegal and the appellate court is bound to vacate the sentence and remand (even if none of the parties on appeal request such relief). (See, e.g., People v Davis, 2007 NY Slip Op 00929.)

People v John, 2007 NY Slip Op 01896 [available here]

The trial court should have reopened the suppression hearing where the officer testified at suppression that a skimask was found only after defendant was identified by an eyewitness, but at trial the witness testified that the officer showed her the skimask before she made the identification. (John, 2007 NY Slip Op 01896.) The fact that another judge presided over suppression did not make the suppression decision the "law of the case", and the hearing should have been reopened because the witness' trial testimony "directly implicated the hearing court's finding of probable cause, and raised more than a question of credibility." (Id. at __.)

AD1: Decisions for March 6, 8, 13 & 15, 2007

All is quiet down at the First Department. Four packets, two notable decisions. Here they are.

People v Wilder, 2007 NY Slip Op 02024 [available here]

After responding to a reported street fight, a police officer took one of the fight participants aside and had him drop the two black plastic bags he was holding. The officer then looked inside the bags. The First Department upheld the search; "[t]his minimal intrusion was not unlawful, but justified by the officer's founded fear that the bags may have contained a dangerous instrument." (Wilder, 2007 NY Slip Op 02024.)

People v Gatling, 2007 NY Slip Op 01811 [available here]

The Court held that a suspect was not under full de facto arrest despite "the fact that the police detained defendant at gunpoint and used handcuffs [...]." (Gatling, 2007 NY Slip Op 01811.) The stop was a so-called "investigative detention", and the use of guns and handcuffs was "fully justified . . . as a precautionary measure during the brief period in which the police awaited the arrival of the victim." (Id. at __) No discussion of whether a reasonable, innocent person would feel free to leave upon being handcuffed at gunpoint.

AD4: Decisions for March 16, 2007

Sorry for the brief hiatus. Occasionally, life and work demands intrude on my blogging time. I am going to go out of chronological order and post on the new Fourth Department decisions, with the intent to go back and post on the other Departments' decisions when time permits.

People v Stroman, 2007 NY Slip Op 02388 [available here]

The Fourth Department granted defendant's writ of error coram nobis based on appellate counsel's failure to "raise an issue on direct appeal that would have resulted in reversal, specifically, in failing to argue ineffective assistance of counsel." (Stroman, 2007 NY Slip Op 02388.)

People v Loper, 2007 NY Slip Op 02168 [available here]

The majority (in a memorandum opinion) ordered the defendant's sentences for Burglary in the Third Degree (Penal Law 140.20) and Unauthorized Use of a Vehicle in the First Degree (Penal Law 165.08) to run concurrent, apparently because an element of the latter crime is that the vehicle be taken "with the intent to use the same in the course of or the commission of" a felony, and therefore the Burglary 3rd was a necessary element of the Unauthorized Use of a Vehicle 1st. (Loper, 2007 NY Slip Op 02168.) Justices Scudder and Green dissented, noting that the actual commission of the underlying crime (here a Burglary 3rd) is not required to establish Unauthorized Use of a Vehicle 1st, but rather the "individual's intent to use the vehicle in such manner is all that is required." (Id. at __.)

People v McCullough, 2007 NY Slip Op 02184 [available here]

The Fourth Department reversed defendant's conviction in the interest of justice where a police witness bolstered the lineup identifications of the only two eyewitnesses to the bank robbery and "[t]he sole contested issue at trial was the identification of the perpetrator, and the evidence of identification is not overwhelming." (McCullough, 2007 NY Slip Op 02184.) I was the attorney on appeal for Mr. McCullough, and I was surprised by this decision because the main issue on appeal was ineffective assistance of counsel. Defense counsel fell asleep at key points of the trial, failed to request a Wade hearing to challenge the eyewitness identification evidence, and elicited damaging testimony from the People's witnesses during cross-examination. The unpreserved bolstering issue was a bit of an afterthought, both in the brief and at oral argument. I guess it never hurts to give the Court another hook to hang its hat on just in case there is reluctance to reverse on your main point.

People v May, 2007 NY Slip Op 02223 [available here]

The trial court erred in failing to charge the jury on the affirmative defense of entrapment. Defendant was a prisoner charged with Criminal Possession of a Weapon in the Third Degree. The weapons at issue were procured by the defendant after he agreed to round up illegal weapons for a correction officer in exchange for television privileges. Based on that evidence, entrapment should have been charged because the jury could have found that defendant was encouraged to possess the weapons and would not have possessed the weapons if not encouraged to do so by the correction officer. (May, 2007 NY Slip Op 02223.)

People v Austin, 2007 NY Slip Op 02224 [available here]

Police had reasonable suspicion justifying the pursuit of defendant where the defendant was one of many young men hanging out on "the porch of a house known to be occupied by elderly people", a "high traffic" of people came and went from the porch, one man in the group admitted to possessing marijuana upon questioning by the police, a bag of marijuana was "recovered", and defendant "fled the scene when the officer asked to speak with him [...]." (Austin, 2007 NY Slip Op 02224 at __.)

People v Manor, 2007 NY Slip Op 02239 [available here]

The Court held defendant's sentence for Criminal Possession of a Weapon in the Second Degree must run concurrent with the sentence on the murder conviction because there was no "evidence that defendant intended to use his weapon unlawfully against another apart from its use in the shooting [...]." (Manor, 2007 NY Slip Op 02239 at __.)

People v Chatman, 2007 NY Slip Op 02273 [available here]

The Fourth Deparmtent held the trial court should have suppressed defendant's statement. Although the facts are not recited in the court's opinion, I was Mr. Chatman's attorney on appeal and can fill in the blanks. The police tried to pull Mr. Chatman over for a seatbelt violation. A low-speed chase ensued. Mr. Chatman ditched the car and took off on foot, and was eventually brought to the ground and handcuffed by the police. The chasing officer immediately asked Mr. Chatman why he was running. I argued that Mr. Chatman was in custody (because he would not feel free to leave after being chased down, tackled and handcuffed), and the officer's question (essentially "why did you run?") was interrogation because it was an invitation to explain whatever criminal conduct prompted the flight and was thus likely to elicit an incriminating response. The Fourth Department agreed "that the court should have suppressed the statement", but found the error harmless. The Court also agreed that the trial court erred in refusing to charge the jury "with respect to the voluntariness of the statement", but found that error harmless, too.


People v Black, 2007 NY Slip Op 02274 [available here]

The Fourth Department reversed defendant's rape conviction and dismissed that count of the indictment where the indictment charged defendant with one act of rape on a certain date and the evidence at trial established two separate completed rapes happened that day. (Black, 2007 NY Slip Op 02274.) An interesting note here: the Fourth Department found the issue unpreserved, but reached it in the issue of justice. This is a subtle but important shift in the preservation requirements for an issue like this. Traditionally, the Fourth Department has not imposed a preservation requirement for this type of error. (See People v McNab, 167 AD2d 858.)

People v Lemon, 2007 NY Slip Op 02296 [available here]

The defendant's sentences for Robbery 1st must run concurrent to the murder sentences where "the act constituting each count of intentional murder, i.e. stabbing the victims, is the same act that caused the serious physical injury for purposes of each robbery conviction." (Lemon, 2007 NY Slip Op 02296.)

People v Lunetta, 2007 NY Slip Op 02304 [available here]

The Fourth Department found the evidence in support of defendant's conviction for Assault 2nd--that the victim had a bump on her head, a bruise on her arm and two swollen fingers--was legally insufficient. The evidence was "legally insufficient to establish that the victim suffered either 'impairment of [a] physical condition' or 'substantial pain.'" (Lunetta, 2007 NY Slip Op 02296.)

People v O'Neal, 2007 NY Slip Op 02305 [available here]

I have a soft spot for this case. I was the attorney for Mr. O'Neal on appeal, and I argued that the evidence was not sufficient to support my client's conviction for possessing an imitation controlled substance (i.e. fake crack) because, while the officer field tested the crack-like substance found in Mr. O'Neal's pocket and the results were negative, the negative results were not confirmed by a formal laboratory analysis. There is good case law that holds a positive field test, standing alone, is not sufficient to establish that drugs are real. My argument was that the same is true in reverse, i.e. a negative field test could not be enough to establish that my client had fake crack and not the real thing.

I think the Court might have agreed with me, except for the fact that a drug addict had sampled my client's wares immediately prior to my client's arrest, and in the addict's opinion the substance tasted like wax and was not real crack. The Fourth Department held that the combination of the addict's testimony and the negative field tests was enough to establish that the substance was fake crack. (O'Neal, 2007 NY Slip Op 02305.)

AD1: Decisions for March 1, 2007

Juror is not grossly unqualified to serve because her aunt lives in building where drug dealing happened

People v Devison, 2007 NY Slip Op 01771 [available here]

During defendant's trial on drug charges, a sworn juror revealed to the court that her aunt lived in the building where the drug dealing was alleged to have occurred. (Devison, 2007 NY Slip Op 01771.) Defense counsel asked that the juror be dismissed, arguing that the juror's aunt was a victim of the crime, and the facts gave rise to an implied bias. The trial court refused to dismiss the juror, and the First Department affirmed. "The juror did not have an implied bias based on this remote fact alone. She stated that she had not visited her aunt in a number of months, promised not to go to the building during the trial, and stated unequivocally that she had formed no opinion about the case based on her aunt's connection to the building." (Id. at __.) As to defendant's argument that the Aunt was a victim of the crime, the First Department rejected the argument in conclusory fashion; "the aunt was not a 'person allegedly injured by the crime charged' within the meaning of the statute." (Id. at __.)

AD3: Decisions for March 1, 2007

Rare reduction of sentence as harsh and excessive

People v Val, 2007 NY Slip Op 01631 [available here]

Defendant was convicted after trial of sexual abuse in the first degree. Although the Third Department found the jury's verdict was not against the weight of the evidence, the Court nevertheless reduced defendant's sentence from 7 to 5 years. "Defendant had no criminal record, was employed and was attempting to further his education. The jury rejected significant portions of the victim's testimony. The presentence investigation report indicates that the victim elected not to file an impact statement and the report characterized defendant as intelligent and motivated to succeed in life." (People v Val, 2007 NY Slip Op 01631.)

Defendant not entitled to DNA protocols, frequency tables as part of mandatory discovery.

People v Alvarez, 2007 NY Slip Op 01632 [available here]

Prior to trial, defendant made a discovery demand requesting (among other things) the frequency tables and testing protocols related to certain DNA testing. The Third Department held that those materials did not fall under the mandatory discovery provisions of CPL 240.20. From the decision:

Courts have held that CPL 240.20 (1) (c) requires the prosecution to disclose any notes or documents used in the preparation of reports or related to the specific tests of items in a defendant's case, but not the lab's generic DNA testing protocols or procedure manuals. The protocol utilized by the State Police lab to determine when its employees may designate a DNA profile as a match was not a document concerning the particular test performed at the request of the prosecutor, but instead applied to all DNA tests performed at the lab. While this protocol may have been discoverable by defendant on a motion properly made and supported with proof "that discovery with respect to such property is material to the preparation of his defense, and that the request is reasonable", defendant's request for this information was not supported with any affidavits establishing materiality or reasonableness. It is interesting that defendant did not object to the lack of foundation for the test results on any basis, defense counsel did not specifically question the People's expert regarding the lab's protocol on determining DNA profile matches and the calling of alleles at each locus, and the defense expert did not conduct independent testing, as he could have done, but instead ran the raw data through a gene profiling computer program which reviewed the data and called some of the prosecution's results into question. Under the circumstances, the prosecution provided all documents required to be disclosed under CPL 240.20 or which were constitutionally required.

(Alvarez, 2007 NY Slip Op 01632.)

Officer's general suspicion that suspect "was secreting something in his pants" justified strip search

People v Banks, 2007 NY Slip Op 01636 [available here]

Schenectady police officers stopped the defendant, and learned he had outstanding warrants from the town of Amsterdam. The Schenectady cops turned the defendant over to the Amsterdam police, and one of the Schenectady officers told the Amsterdam officers his "suspicion that defendant was secreting something in his pants [...]." (Banks, 2007 NY Slip Op 01636.) Once in the Amsterdam police car, "the Amsterdam police observed defendant . . . attempting to reach in his pants, causing the officer to conclude that the information from the Schenectady police was accurate and that defendant was attempting to remove something and secrete it in the police car." (Id. at __.) Once at the Amsterdam police station, defendant was strip searched. (Id. at __.) The cops testified at suppression that Amsterdam had "a policy of conducting strip searches of every arrestee remanded to the local correctional facility." (Id. at __.)

The Third Department upheld the strip search. While noting that a policy of strip-searching every arrestee is unconstitutional, the Court nevertheless concluded that "the Amsterdam police properly formed a reasonable suspicion that defendant had contraband on his person and that the strip search was therefore reasonable." (Id. at __.)

AD2: Decisions for February 27, 2007

Juror who has seen witness "numerous times" is grossly unqualified to serve; no inquiry necessary where defendant's family allege juror was sleeping

People v Lennon, 2007 NY Slip Op 01759 [available here]

After a witness testified for the prosecution, a juror informed the court that he had seen the witness "'down by the bay numerous times'" and had "conversed with him." (Lennon, 2007 NY Slip Op 01759.) When asked if his acquaintance with the witness would "influence his deliberations", the jury said "he did not 'know how to answer'." (Id. at __.) The trial court found the juror "grossly unqualified" to continue service under CPL 270.35 and removed him from the jury. The Second Department affirmed. "The trial court was justified in concluding the juror was 'grossly unqualified' to continue serving based on his relationship with the witness and his inability to state that he would not be influenced by the relationship." (Id. [citations omitted].) Hard to see how this squares with Buford, where the Court of Appeals held, "[i]n concluding that a juror is grossly unqualified, the court may not speculate as to possible partiality of the juror based on her equivocal responses. Instead, it must be convinced that the juror's knowledge will prevent her from rendering an impartial verdict." (People v Buford, 69 NY2d 290 [1987].)

The court replaced the juror with an alternate, at which point "members of the defendant's family reported that the alternate juror had been sleeping [...]." Rather than conduct an inquiry with the juror, the trial court "noted that it had a better view of the alternate than the defendant's family and that, inter alia, it believed that the alternate juror had not been sleeping." (Id.) Factual disputes resolved in favor of the person wearing the robe, I guess. Would it really have been that hard to call the alternate out and ask her if she dozed off? Not necessary, says the Second Department; "[a]s the court had the benefit of its own observations, further inquiry was not required." (Id.)

Defendant not entitled to vacatur of guilty plea on B violent felony where postrelease supervision not included as part of plea or sentence

People v Wilson, 2007 NY Slip Op 01765 [available here]

Defendant pleaded guilty to Assault in the First Degree (a B violent felony), and was promised a determinate 18 year sentence. Postrelease supervision was not a term of the plea, and no postrelease supervision was mentioned at sentencing nor included in the "court's order of commitment." (People v Wilson, 2007 NY Slip Op 01765 at __.) Since a term of postrelease supervision is mandatory upon a conviction for Assault 1st, defendant made a motion to vacate his plea based on an illegal sentence. The trial court denied the motion, and the Second Department affirmed. (Id. at __.) The Court reasoned that, since postrelease supervision was neither part of the plea nor the sentence imposed, "the sentence actually imposed by the court never included, and does not now include, any period of post-release supervision." (Id. at __.) And since "the defendant received precisely the sentence for which he bargained", the Court found no reason to vacate his plea. (Id at __.) In other words, defendant is entitled to specific performance on his bargain, even if the sentence he agreed to is illegal.

The Fourth Department probably would have reached a different result. (See, e.g., People v Davis, 2007 NY Slip Op 00929 ["Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand."] [bracketed material in original].)

AD1: Decisions for February 27, 2007

Lying to police, dropping keys = reasonable suspicion to justify detention

People v Padilla, 2007 NY Slip Op 01604 [available here]

At a community meeting, an elderly woman told a police officer about unspecified "suspicious activity" involving a "Hispanic man with a blue BMW" near a certain housing project. Padilla, 2007 NY Slip Op 01604.) About a week later, officers were patrolling near the housing project when they observed defendant pull up to the housing project in a blue BMW, enter the housing project, and exit about 10 minutes later. (Id. at __.) The officers approached the defendant "to inquire whether defendant had a lawful basis to be" in the housing project. (Id.) When asked where he was coming from, the defendant "stated that he was coming from up the block, which [the officer] knew to be a lie." (Id. at __.) While defendant was talking, he "extend[ed] his right hand and nonchalantly drop[ped] a key chain." (Id. at __.) The police pressed the issue, and defendant changed his story and said he had been "visiting a family in apartment 3B" of the housing project. (Id.)

At this point, the police detained the defendant and took him into the housing project "to verify defendant's account [...]." Long story short: the police noticed an "overpowering" smell of marijuana coming from the fourth floor, heard a generator running inside an apartment on the fourth floor, and used the defendant's key to let themselves into the apartment that had been converted to a marijuana greenhouse. (Id.)

Based on those facts, the trial court granted defense counsel's motion to suppress. The First Department reversed. The Court reasoned that the encounter was justified at its inception because the old lady's tip at the community meeting provided an objective and credible reason for approaching the defendant and asking general questions about "where he had come from [...]." (Id. at __.) "The encounter then appropriately progressed from a 'request for information' to a temporary detention" because the defendant lied about where he was coming from and dropped his keys. (Id. at __.) Once the defendant's key fit the door for the marijuana greenhouse, probable cause existed for arrest. (Id. at __.)

Yet another decision invoking the so-called "investigatory detention" automatically with absolutely no mention of the critical threshold inquiry--whether a reasonable, innocent person would have felt free to leave upon being "detained" by the police. If a reasonable, innocent person would not feel free to leave, the the "detention" is a full de facto arrest justifiable only on a showing of probable cause. The type of reasoning employed in Padilla waters down the protections of the Fourth Amendment, essentially setting up a "reasonable suspicion" standard for most detentions, with "probable cause" relegated to some exception to be claimed if the so-called "investigatory detention" crests some unspecified threshold of severity.

Potential juror's statement that she would do her best to overcome bias is a sufficiently unambiguous statement of impartiality

People v Ortiz, 2007 NY Slip Op 01605 [available here]

In a decision that gets to the right result while still managing to make terrible law, the First Department reversed defendant's conviction because a potential juror said during jury selection that would not be able to separately determine guilt on each of the several counts against defendant. Perfectly legitimate grounds for reversal; but it is what the First Department holds elsewhere in the opinion that is truly baffling.

Another potential juror was challenged for cause during jury selection. This juror, when asked "if she could assess defendant's guilt as to the various charges arising out of three separate incidents, ... stated, 'I would have a hard time not lumping everything together.'" (Ortiz, 2007 NY Slip Op 01605.) The judge asked her if she could use her "best efforts" to evaluate the proof, and the juror said "yes." (Id.)

Later, the same juror said she "might" give more credibility to police officers. (Id.) When defense counsel asked her if she could follow an instruction to treat police testimony the same as any other witness, "she responded, 'I will do my best.'" (Id. at __.)

While acknowledging that the trial court should strike a potential juror who fails to give unequivocal assurances of impartiality, the First Department held the trial court's refusal to grant defense counsel's challenge for cause was appropriate. Here's how the First Department framed and resolved the issue:

Where the prospective juror's assurance of impartiality is expressed in less than a definitive "yes" or "no" reply, service should not be permitted unless the juror's responses "taken in context and as a whole, were unequivocal." Here, venireperson Puder responded with an unequivocal "yes" when asked if she could use her best efforts to evaluate the three incidents individually and stated that she would do her best when asked if she would impartially evaluate testimony given by a police officer.

(Id. at __.)

This is just a ridiculous oversimplification. The standard is whether the juror gives an unequivocal assurance of impartiality. Giving a simple "yes" answer to a question phrased in ambiguous terms is not an unequivocal assurance. That is just what happened here; what exactly does it mean when a juror says she will do her best to overcome her stated bias? How good is her best? The judge's questioning here did absolutely nothing to clear up the ambiguity, but rather injected more uncertainty into the mix. The fact that her answer was a simple "yes" doesn't change the fact that the question itself was ambiguous. The First Department's reformulation of the Arnold standard to some simple "yes/no" requirement guts the standard.

Defense counsel's concession at suppression = ineffective assistance of counsel

People v Johnson, 2007 NY Slip Op 01606 [available here]

After a suppression hearing, defense counsel told the court (among other things), "'I don't believe in doing vain things and trying to ask a Judge to do something that I would not do. And I don't believe I have sustained, frankly, my burden to show the unlawful and unconstitutionality of the search. So I can't really argue.'" (People v Johnson, 2007 NY Slip Op 01606.) Quality advocacy, that. The First Department reversed on ineffective assistance of counsel grounds, noting the suppression record presented "colorable" issues and "we can discern no legitimate strategy or tactic which would have led counsel to simply concede all of the points raised." (Id.)