Monday, June 11, 2007

AD4: Decisions for June 8, 2007

Reckless shooting not uncommonly brutal enough to support depraved indifference murder conviction; applying standard of dismissal appropriate for prospective juror to sworn juror is reversible error

People v Gilmore, 2007 NY Slip Op 04908 [available here]

During the course of a botched robbery of a drug dealer, Mr. Gilmore shot the dealer once in the arm and once in the back. Eyewitnesses testified that the dealer was shot in the back while fleeing; Mr. Gilmore testified that the dealer drew his own gun, and Gilmore fired the fatal shots "backward in the victim's direction." (Gilmore, 2007 NY Slip Op 04908.) Under either view, a majority of the Court holds that the evidence was not sufficient to support a conviction for depraved indifference murder. "The one-on-one shooting was not 'marked by uncommon brutality', 'or any other hallmark of wanton recklessness necessary to demonstrate circumstances evincing a depraved indifference to human life.'" (Id. at __.)

The Court also reversed and remanded for a new trial on the remaining counts based on the trial court's error in handling the discharge of a sworn juror. After being sworn, a juror approached the court and informed them that "his brother was imprisoned on 'trumped-up charges.'" (Id. at __.) When asked if he could be fair and impartial, the juror repeatedly said, "I don't know." (Id. at __.) In discharging the sworn juror over defense counsel's objection, the trial court applied the standard for determining if a prospective juror should be struck, i.e. whether the juror can give unequivocal assurances of his ability to be fair and impartial. A majority of the Court reversed based on the trial court's failure to use the "grossly unqualified" standard applicable to the dismissal of a sworn juror. (Id. at __.)

Presiding Justice Scudder dissented on both scores. The presence of bystanders in the vicinity of the shooting was enough to elevate Mr. Gilmore's conduct from reckless to depraved, and regardless of the standard actually articulated by the trial judge, the record of the colloquy between the lower court and the sworn juror was sufficient to establish that the juror was, in fact, grossly unqualified to continue service and any error in applying the incorrect standard was essentially harmless. (Id. at __ [SCUDDER, J., dissenting.]

Since I was Mr. Gilmore's attorney on appeal and it is possible leave to appeal to the Court of Appeals will be granted, I will leave my comments on this case for another day.

One-on-one stabbing not depraved indifference murder

People v Smothers, 2007 NY Slip Op 05017 [available here]

Two girls vandalized the defendant's car. Perhaps overreacting, the defendant started chasing the girls with "a large kitchen knife." (Smothers, 2007 NY Slip Op 05017.) Somebody called out to the defendant to "watch her back", so the defendant "suddenly turned around and stabbed a third girl who had arrived with the other girls but who had taken no part in vandalizing her car." (Id. at __.) According to an eyewitness, the defendant struck "wildly with the knife." (Id. at __.) On those facts, the Fourth Department held that the evidence was not sufficient to support the defendant's conviction for depraved indifference murder. (Id. at __.) But since the evidence supported a finding of bare recklessness, the Court reduced the conviction to second-degree manslaughter. (Id. at __.)

Failure to advise client that he will be deported if he pleads guilty is not ineffective assistance of counsel

People v Johnson, 2007 NY Slip Op 05033 [available here]

Mr. Johnson made a 440.10 motion alleging that he was denied effective assistance of counsel when his attorney "erroneously advised him that his guilty plea would have no effect on his immigration status [...]." (Id. at __.) The Fourth Department found no evidence of an affirmative misstatement of law by the attorney. It was undisputed that defense counsel did not inform Mr. Johnson that his guilty plea would automatically result in his deportation, but that omission, standing alone, was not enough to establish ineffective assistance of counsel. "'Deportation is a collateral consequence of conviction because it is a result peculiar to the individual's personal circumstances and one not within the control of the court system', and the failure to advise a defendant of a collateral consequence of a guilty plea, as opposed to giving affirmative incorrect advice, does not constitute ineffective assistance of counsel." (Id. at __ [citations omitted].) True enough that deportation is a collateral consequence of the plea and therefore does not have to be mentioned by the court during the plea colloquy. But it is hard to imagine any cogent standard of practice that allows defense counsel to ignore what in many cases is the most significant consequence of a plea.

Ineffective assistance of counsel issue must be preserved by 440.10 motion where claimed deficiency is failure to seek suppression of critical evidence

People v Marcial, 2007 NY Slip Op 05069 [available here]

Mr. Marcial was charged with possessing drugs that were found in his pocket upon arrest. For reasons unknown, defense counsel below failed to make a motion to suppress the drugs. Not enough, standing alone, to establish ineffective assistance of counsel, says the Fourth Department. "[W]e note that it is troubling that defense counsel failed to seek to suppress the drugs found on defendant's person because a lack of physical evidence would have been defendant's only conceivable defense to that drug possession charge. Nevertheless, 'prudence dictates that the issue of ineffective assistance of counsel be raised in a posttrial application . . . where a thorough evaluation of each claim based on a complete record can be made.'" (Marcial, 2007 NY Slip Op 05069.)

Inclusory concurrent counts must be dismissed; no preservation required

People v Moore, 2007 NY Slip Op 04900 [available here]

The defendant was convicted and sentenced on three counts of first-degree sexual abuse and three counts of forcible touching based on the same underlying facts. The Fourth Department holds that the forcible touching counts are inclusory concurrent counts to the first-degree sexual abuse, and therefore the forcible touching counts "must be dismissed as a matter of law because 'a verdict of guilty upon the greater [count] is deemed a dismissal of every lesser [inclusory concurrent count].'" (Moore, 2007 NY Slip Op 04900 [brackets in original].) Previous decisions from the Fourth Department required preservation of this issue by a posttrial motion to vacate the inclusory concurrent counts, but the Court in Moore holds that preservation is not required and those cases "are no longer to be followed." (Id. at __.)

First-degree murder sentences imposed after lower court gave unconstitutional deadlock instruction must be vacated

People v Santiago, 2007 NY Slip Op 04913 [available here]

The defendant was sentenced upon his convictions for first-degree murder after the jury was given "the deadlock instruction contained in CPL 400.27[10]." (Santiago, 2007 NY Slip Op 04913.) The Court of Appeals has held that the deadlock instruction is unconstitutional because it could conceivably coerce jurors into voting for the death penalty. Since Mr. Santiago was sentenced after the jury was given the faulty deadlock instruction, the Fourth Department vacated the sentences imposed on the first-degree murder convictions and remanded for resentencing. (Id. at __.)

Bank robber fleeing into house upon (maybe) seeing cop = burglary

People v Porter, 2007 NY Slip Op 04923 [available here]

Defendant was convicted of burglary on the theory that, after robbing a bank, he entered a house while fleeing to evade a police officer. Thus, he entered the house with the intent to commit the crime of resisting arrest. (Porter, 2007 NY Slip Op 04923.) On appeal, defendant argued that the evidence was not sufficient to support the burglary conviction because the People failed to prove the he entered the house with the intent to commit the crime of resisting arrest. The Fourth Department rejected that argument. After robbing the bank, the defendant fled on foot, and after a time was spotted by a police officer. "The officer was in his vehicle approximately one block away from defendant, and he testified that defendant was running directly toward him when defendant turned abruptly into a house." (Id. at __.) From that evidence, "the jury could reasonably infer . . . that defendant observed the officer approximately one block away and that he therefore unlawfully entered the house with the intent to prevent or attempt to prevent the officer from effecting an authorized arrest." (Id. at __.)

Statement made to doctor in attempt to get phony prescription not covered by doctor-patient privilege

People v Georgetti, 2007 NY Slip Op 04945 [available here]

During his trial on charges of second-degree criminal possession of a forged instrument, both the defendant's doctor and his nurse were allowed to testify about defendant's attempts to obtain false prescriptions. Such testimony is not covered by the doctor-patient privilege, says the Fourth Department, because the privilege "'does not extend to information obtained outside the realms of medical diagnosis and treatment.'" (Georgetti, 2007 NY Slip Op 04945 [citations omitted].

Thursday, June 07, 2007

CA: existence of unsatisfied condition does not necessarily negate criminal conspiracy

People v Washington, 2007 NY Slip Op 04720 [available here]

While incarcerated, Mr. Washington entered into an agreement with a hitman (who was actually an undercover informer) to have one of his rivals killed. (Washington, 2007 NY Slip Op 04720.) Being somewhat short of funds due to his incarceration, Washington told the informer to hold off on executing the hit until Washington could get out of jail and raise the necessary cash. On appeal, Washington argued that the agreement to have the rival killed was contingent on an event that never happened (because Washington was arrested for conspiracy before he was released from jail), and the existence of an undischarged condition negated the conspiracy.

The Court of Appeals (in a unanimous decision by Judge Ciparick) rejected that argument. While acknowledging a split among the federal circuit courts on the correct analysis to apply--the First and Eighth Circuits "have adopted the approach that an agreement with a condition will be effective only if the defendant subjectively believes the condition is likely to be fulfilled," while the Fifth, Seventh and Eleventh Circuits "hold[...] that conditions to an agreement are largely irrelevant, unless the conditions are so unlikely to be met that the agreement is illusory"--the Court does not choose a side. (Id. at __.) Even under the First and Eighth Circuit's somewhat stricter analysis, Mr. Washington would have subjectively believed that he would eventually be released from jail and thereby satisfy the condition, and the deal was otherwise specific enough to satisfy the requirements of a criminal conspiracy. (Id. at __.)

Wednesday, June 06, 2007

CA: 7-month time frame for criminal act specified in accusatory instrument not specific enough to provide defendant with sufficient notice

People v Sedlock, 2007 NY Slip Op 04683 [available here]

The defendant, a Boy Scout master, was accused of forcibly touching one of his 17 year-old scouts once during a time period "from December 2002 through June 2003." (Sedlock, 2007 NY Slip Op 04683.) Defense counsel requested a bill of particulars to narrow that time frame down a bit; the People responded by reiterating that one act of forcible touching occurred "between December of 2002 and June 2003." (Id. at __.) The trial court denied defense counsel's motion to dismiss the accusatory instrument on the grounds that it "did not properly give him notice of the charge so that he could adequately prepare a defense." (Id. at __.) The Court of Appeals reversed in a unanimous decision by Judge Ciparick. From the decision:

[W]e conclude that the People failed to meet their duty to delineate a sufficiently narrow time frame for the alleged act. Notably, the complainant here was 16 or 17 years old at the time of the forcible touching, and, by all accounts, intelligent. Exact dates for incidents that occurred years before were provided, yet the People failed to specify a more precise time frame for the conduct at issue, or to demonstrate that they were unable to do so. Under these circumstances, seven months cannot be deemed reasonable when weighed against the imperative notice rights of the defendant. The People had ample opportunity to correct this deficiency in their response to the bill of particulars but failed to do so, and thus defendant's motion to dismiss the information should have been granted.

(Id. at __.)

This is the right call. Prosecutors are sometimes allowed to allege criminal conduct occurred over broad swaths of time when, by reason of the age of the victim or the passage of time or both, the exact date of the crime cannot be pinned down with any precision. But this should be the exception, used sparingly and only when absolutely necessary. An intelligent 17-year-old is able to give specific information that a 4 year old cannot, and it should be incumbent on the prosecutor to thoroughly investigate a 17-year-old's allegations and nail the date of the crime down with some specificity before prosecuting the case.

Tuesday, June 05, 2007

CA: defendant entitled to take plea back if postrelease supervision not part of plea colloquy

People v Louree, 2007 NY Slip Op 04679 [available here]

A defendant must be informed that his sentence will include a term of postrelease supervision before he pleads guilty, and a defendant who is not so informed is entitled to vacatur of his guilty plea. The defendant does not have to show that he would not have pleaded guilty if he knew about the postrelease supervision component of the sentence,and the issue does not have to be preserved for appellate review by a motion to withdraw the guilty plea. So says the Court of Appeals today, in a majority decision by Judge Read. (See Louree, 2007 NY Slip Op 04679.) Judge Pigott dissented, and would have required the defendant to object to the imposition of the postrelease supervision at sentencing to preserve the issue for review. (See id. at __ [Pigott, J., dissenting].)

AD2: Decisions for May 22, 2007

Lengthy prior criminal history, poor prison disciplinary record and subsequent murder conviction = no DLRA resentencing

People v Vega, 2007 NY Slip Op 04521 [available here]

Mr. Vega petitioned to be resentenced under the Drug Law Reform Act (DLRA). The lower court declined to resentence Mr. Vega, and the Second Department affirmed. "The defendant is a second felony offender with a prior criminal history dating back to 1988, including convictions of other controlled substance offenses, and he was subsequently convicted of murder in the second degree. Moreover, his prison disciplinary record was poor. Under the circumstances, substantial justice dictated that the motion be denied." (Vega, 2007 NY Slip Op 04521.)

No postrelease supervision? No problem.

People v Martinez, 2007 NY Slip Op 04512 [available here]

On his plea of guilty to Robbery in the First Degree, Mr. Martinez was sentenced as a second felony offender to an eight year determinate prison term. Although a term of postrelease supervision is a required part of the sentence for first-degree robbery, no mention of a postrelease supervision term was mentioned at sentencing, and postrelease supervision was not included in the court's order of commitment. (Martinez, 2007 NY Slip Op 04512.) On appeal, Mr. Martinez argued that his sentence was illegal, and that he was entitled to withdraw his plea. The Second Department disagreed, holding "the sentence actually imposed by the court never included, and does not now include, any period of postrelease supervision . . . [i]nasmuch as the defendant received precisely the sentence for which he bargained, he has failed to articulate any reason for vacating his judgment of conviction pursuant to CPL 440.10(1)(h), and we therefore affirm the denial of his motion." (Id. at )__.) As I have mentioned before here and here, the Fourth Department would have vacated the sentence as illegal, whether the defendant requested it or not.

Leaving the scene of an accident does not require proof of culpable mental state

People v Toussaint, 2007 NY Slip Op 04517 [available here]

On appeal, Mr. Toussaint argued that his conviction for leaving the scene of an accident should be reversed because the court failed "to instruct the jury that the defendant could only be found guilty if he had intentionally left the scene of the accident." (Toussaint, 2007 NY Slip Op 04517.) The Second Department affirmed. While the statute "requires proof that the defendant knew or had cause to know 'that a personal injury has been caused by his culpability or by accident,' the statute 'does not require the People to establish that the defendant acted with any culpable mental state as to [the element of] leaving the scene of the accident.'" (Id. at __ [citations omitted, brackets in original].)

Monday, June 04, 2007

AD1: Decisions for May 24, 2007

Criminally negligent assault conviction based on driving on sidewalk, driving the wrong way up a one-way street, hanging on to the victim from a moving car and steering with the same hand that is holding a loaded handgun is against the weight of the evidence

People v Conway, 2007 NY Slip Op 04400 [available here]

While on patrol in the Bronx, officer Mark Conway observed a young man walking down the street. For reasons not explained in the decision on appeal, Conway believed the young man was carrying a gun. (Conway, 2007 NY Slip Op 04400.) A pursuit followed, during which Conway drove up on a sidewalk, drove the wrong way down a one-way street, and grabbed the fleeing suspect from a moving car while driving and holding his service revolver with the same hand. Conway's gun went off during the chase, and the young suspect was severely injured. No gun was recovered from the suspect. (Id. at __.)

Conway was convicted after a bench trial of misdemeanor criminally negligent assault. The First Department reversed his conviction, finding the evidence legally insufficient to establish criminal negligence. The Court of Appeals reversed, finding a reasonable view of the evidence supported the conviction. The Court of Appeals remanded the case back down to the First Department to conduct a weight of the evidence review. (Id. at __.) The First Department again reversed the conviction, finding that the trial judge's verdict was against the weight of the evidence. From the majority decision:

Despite some current equivocation by the People, it was previously uncontradicted that the stop, itself, was proper, and it follows that Conway acted within the bounds of the law when he chased an escaping suspect. Moreover, the essential facts of that chase, as narrated by Conway, are not disputed (except by Dantae Johnson, the complainant) and are even supported by portions of the People's evidence. [...]

Finally, a criminal negligence analysis, in determining reasonableness and gross deviation, ultimately turns on the particular circumstances under which the accused acts. The particular facts of this case as previously noted, and which remain unchanged, warrant the finding that, weighing all the competing inferences, Conway did not act unreasonably under the circumstances.

(Id. at __.)

Justice Williams dissented in unusually strong terms, going so far as to state, "[t]his case presents a perfect example of why police misconduct is such a persistent, endemic problem in this city and country; it is condoned in high places." (Id. at __ [SMITH, J., dissenting].)