Sunday, September 28, 2008

New Address for this Blog

Effective October 1, 2008, future postings for this blog will be at a new address:

Tuesday, September 16, 2008

What does CPL 190.50 mean when it requires that the DA accord a defendant a reasonable time to testify at the Grand Jury?

CPL 190.50(5)(a) requires that upon a request from a defendant to appear
before the grand jury, the district attorney must notify the defendant or
his attorney of the prospective or pending grand jury proceeding and must "
accord the defendant a reasonable time to exercise his right to appear as a
witness therein." In People v Shemesh ( __ NY3d __ [9/16/08]) the Court of Appeals affirmed a dismissal of an indictment, with leave to represent, because there was record support for the lower courts findings that the district attorney had failed to accord the defendant reasonable time to exercise his right to appear as a witness before the grand jury. The facts in Shemesh, which are set forth in the 3-2 decision of the Appellate Division, First Department at 2008 NY Slip Op 00208,51 AD3d 239, reveal that the district attorney had provided the defendant with 4 possible dates to testify, but that the defendant could not testify on any of those dates due to either a change in counsel (not for the purpose of being deliberately dilatory) or because it would conflict with his observance of a religious holiday. The trial court and the majority of the Appellate Division held that merely providing a defendant with four possible dates to testify was unreasonable where the defendant had timely communicated good reasons that he was unable to testify on those dates and that he was able to testify on a different date during the term of the grand jury. The Court of Appeals had previously held in People v Sawyer (96 NY2d 815, 816 [2001]) that the "concept of reasonableness is flexible and must be applied to the particular facts of a case known at the time." Applying Sawyer, the Appellate Division held that "[a] flexible application of the concept of reasonableness to the particular facts...cuts in favor of defendant..."

The affirmance of this holding by the Court of Appeals should provide
valuable support for attorneys seeking to challenge the limited times
offered by a district attorney to their clients to testify at the grand
jury as being unreasonable.

Saturday, July 05, 2008

Error to Permit Defendant to Be Cross-Examined Regarding Prior YO Adjudication

In People v Towsley, 2008 NY Slip Op 06054 [4th Dept 7/3/08] [here], the Fourth Department held that it was an abuse of discretion for the trial court to issue a Sandoval ruling permitting the defendant to be cross examined regarding a prior Youthful Offender adjudication. This error was deemed harmless; but this seems like a ruling to remember when you have a client who previously received YO status.

Reversal Due to Unpreserved Prosecutorial Misconduct

In People v Fredrick, 2008 NY Slip Op 06056 [4th Dept 7/3/08] [here] the Fourth Department not only reversed a conviction due to unobjected to prosecutorial misconduct, but in doing so the Court expressly refused to consider whether the misconduct contributed to the verdict. In reversing in the interest of justices, the Court wrote

as defendant correctly contends, the prosecutor improperly vouched for the credibility of the People's witnesses during both his opening and closing statements (see People v LaDolce, 196 AD2d 49, 57; see generally People v Bailey, 58 NY2d 272, 277-278). He also improperly elicited testimony from a police officer who vouched for the credibility of the confidential informant by testifying that the confidential informant had provided reliable information to the police in the past (see People v Slaughter, 189 AD2d 157, 160, lv denied 81 NY2d 1080). In addition, the prosecutor repeatedly elicited irrelevant and highly prejudicial testimony from several police officers concerning the percentages of convictions obtained by those officers in prior unrelated cases, referred to by the prosecutor as their "batting average[s]." That misconduct was compounded during summation when the prosecutor highlighted the "exemplary record" of the police officers and the confidential informant who testified for the prosecution by stating that they were "batting 100 percent[,] 85 percent, 90 percent" (see generally People v Ashwal, 39 NY2d 105, 109-110). Further, the prosecutor improperly elicited testimony establishing that defendant had been incarcerated since his arrest (see People v Paul, 229 AD2d 932, 933), as well as testimony on direct examination of the confidential informant that defendant had not made certain exculpatory statements to him while they were in jail following defendant's arrest (see generally People v Collins, 12 AD3d 33, 38-39).

It cannot be said that County Court "took appropriate action to dilute the effect of [the prosecutorial misconduct]" (People v Mott, 94 AD2d 415, 419), and we conclude that the misconduct "operated to deny . . . defendant his fundamental right to a fair trial" (People v Crimmins, 36 NY2d 230, 238). We therefore "must reverse the conviction and grant a new trial, . . . without regard to any evaluation as to whether the errors contributed to the defendant's conviction. The right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right" (id.).

Horseshoes, Hand Grenades, and Predicate Sentencing:

Besides the classic examples of horseshoes and hand grenades, compliance with the requirements for predicate sentencing is apparently another instance in which getting close is credited.

In People v Mateo, 2008 NY Slip Op 06087 [4th Dept 7/3/08](here] the Fourth Department considered the consequence of the failure of the People to file a
second felony offender statement as required by CPL 400.21 (2) following his retrial. The Court noted that
[t]he People filed a second felony offender statement at the first trial and defendant admitted his status as a second felony offender at that time and at sentencing following the retrial. We thus conclude that there was substantial compliance with the statute.
Thus, the People are required to have only substantial compliance with CPL 400.21 (2).

Wednesday, June 25, 2008

When Does a "Conviction" Occur?

by James Eckert

Many statutes impose harsher penalties on a defendant who commits a crime
after he has been "convicted" of another crime. For example, a UUMV
conviction after a prior is more serious, the second DWI is a felony and so
on. Today, in People v Montilla, the Court of Appeals held that a
defendant is convicted, at least for some purposes, the day he pleads

A judgment of conviction is based on the date sentence has been
imposed. However, in order to sustain a conviction under PL 265.02(1) - CPW3, instead of CPW4, the Court of Appeals ruled that "conviction" meant only that the defendant had pled guilty, not that there was a judgment of conviction.
Therefore, after the defendant pled guilty, but before he was sentenced, he
stood "convicted" of the crime he pled to and was therefore subject to
harsher penalties for possession of a weapon.

The Court did point out that recidivist statutes require the imposition of
sentence to constitute a prior conviction, so Montilla does not support a
felony DWI charge the day after the defendant pleads to, but is not
sentenced for, a DWI. However, expect that the statute will be applied to
any other use of the term "convicted" where it is not absolutely clear that
the statute is for recidivists.

Sunday, June 15, 2008

Court Divided As To What Consititutes Individualized Showing Needed To Require Defendant To Wear Physical Restraints At Trial

In People v Buchanan [4th Dept 6/6/08] (here) the Fourth Department unanimously held that the use of a stun belt that is not visible to the jury is subject to the same judicial scrutiny as other forms of physical restraint that are visible. Spefically, the Court held that the use of a stun belt that is not visible to the jury requires the court to make the same individualized security determination required for the use of physical restraints that are visible (see Deck v Missouri, 544 US 622, 632).

The Court,however, divided 3-2 as to what constitutes an individualized determination. The majority held that the requirement was satisfied where
the court stated that it had a policy to use restraints in "serious" cases and that it would comply with the recommendation of the Sheriff's deputy to use the restraint.

The dissenting Justices, in an opinion by Justice Fahey, strongly disagreed that the trial judge's reasoning constituted an individualized determination:
In this case, the court set forth on the record three reasons for the use of the stun belt. First, the court stated that it was its policy to place all defendants accused of a crime of a serious nature in either leg shackles or a stun belt during trial. Second, the court stated that the Sheriff's Department wanted defendant to wear the stun belt. Third, the court stated its belief that "an innocent man on trial for murder is more dangerous than a guilty one."
In point of fact, the court noted that defendant had "done [nothing] to warrant" the use of the stun belt, and the only reference to defendant's background was the court's acknowledgment that defendant had never caused any problems in the courtroom in his previous appearances before the court....
The court's blanket policy of placing all defendants in either leg shackles or a stun belt based on the nature of the crime charged is directly contrary to the requirement that there be a case by case determination by the court concerning the necessity for the use of restraints along with the requisite "close judicial scrutiny." The court's blanket policy directly violates the due process requirements for the use of visible restraints... The court should not relegate its duty to apply judicial scrutiny to the Sheriff's Department but, rather, it may consider the recommendation of the Sheriff's Department in making its determination (see generally People v Thomas, 125 AD2d 873, 874)...
Finally, the court's statement "that an innocent man on trial for murder is more dangerous than a guilty one" goes to the very heart of our concern with respect to the procedure used in determining whether the defendant in this case was required to wear a stun belt. The presumption of innocence must be maintained against all attempts to erode it, and courts must ensure that it is not undermined by a desire for convenience or the demands of bureaucratic policies. The presumption of innocence requires that a trial not only be fair, but that it also appears to be fair. The appearance of fairness requires that physical restraints, whether visible or not, be used only where there is an essential state interest. Nothing in the record before us indicates that there was any essential state interest considered in the context of this defendant.

Thursday, June 12, 2008

Reversal for Brady Violation Absent Specific Request for Information

In People v Hunter (6/12/08) a unanimous Court of Appeals held that in a sex case, where the defense was consent, it was a Brady violation requiring reversal for the prosecutor to withhold from the defense information that in another pending case the same complainant has accused a man of rape and his claim was that the sex had been consensual. The Court rejected the argument that the subsequent guilty plea by the defendant in the other case obviated the Brady violation. The Court held that the post-trial plea was irrelevant as to the People's duties pursuant to Brady at the time of trial and before. If the information known to the People when this case was tried was "favorable to the accused" and "material" within the meaning of Brady, defendant had a due process right to obtain it, and that right could not be nullified by post-trial events.

Further, the Court ruled that this information that, complainant had accused a second man of rape, as she had defendant; that her encounter with this other man, like her encounter with defendant, took place in the accused man's home; and that, according to that man, the complainant willingly had sex with him and then lied about it, would have been admissible at the defendant's trial during the cross-examination of the complainant.

Finally, and most unusually, despite there not being the specific request for such information (that is almost always required to find Brady violations), the Court concluded that under the facts of the case (in which the jury acquitted on some of the counts) that it was a reasonable probability that the verdict would have been different if the information had been disclosed, and that the information, therefore, was material.

Sunday, June 08, 2008

Cumulative Effect of Evidentiary Errors and Prosecutorial Misconduct Deprived Defendant of Fair Trial

What is rarer, reversal due to the admission of hearsay or reversal due to prosecutorial misconduct? How about reversal for unpreserved hearsay violations? Or reversal for unpreserved prosecutorial misconduct?

In People v Ballerstein 2008 NY Slip Op 05127 [4th Dept 6/6/08], a decision sure to be cited often, the Fourth Department held that, despite not being preserved for review, the cumulative effect of evidentiary errors and prosecutorial misconduct deprived the defendant of his right to a fair trial and required reversal. The Court explained "we are mindful of our overriding responsibility' to ensure that the cardinal right of a defendant to a fair trial' is respected in every instance" (People v Wlasiuk, 32 AD3d 674, 675, lv dismissed 7 NY3d 871, quoting People v Crimmins, 36 NY2d 230, 238).

Addressing first the cumulative effect of evidentiary errors, we agree with defendant that County Court erred in admitting hearsay, including excerpts from the victim's diary, testimony relating to the victim's menstruation, testimony from the ex-boyfriend of the victim's mother concerning a videotape that he never viewed, and testimony from various witnesses concerning the victim's allegations of sexual abuse. We note in particular that the court admitted in evidence the double hearsay testimony of the medical director of the Child Advocacy Center with respect to statements made by the victim to a nurse at the center when the medical director was not present, despite the fact that the court had granted defendant's motion in limine seeking to preclude that testimony. Moreover, all of the victim's statements made at the Child Advocacy Center were inadmissible because they were made during the course of a forensic examination and were not "relevant to diagnosis and treatment" [citations omitted]. The error in the admission of the victim's statements made at the Child Advocacy Center was compounded by the improper admission of the medical director's opinion testimony concerning the credibility of the victim's statements. The opinion testimony of the medical director improperly intruded upon the function of the jury to determine whether to credit the victim's statements (see People v Eberle, 265 AD2d 881, 882)...
With respect to the contention of defendant that he was denied a fair trial by prosecutorial misconduct, we agree with defendant that the prosecutor improperly appealed to the jurors' sympathies in his opening statement (see People v Brown, 26 AD3d 392, 393). In addition, he improperly vouched for the credibility of the victim (see id.; People v George, 249 AD2d 488, lv denied 92 NY2d 879), and he engaged in misconduct by commenting on the credibility of an individual whom he did not intend to call as a witness. Further, throughout the trial, the prosecutor asked leading questions that circumvented unfavorable rulings of the court and introduced evidence that the court had precluded him from presenting. Finally, in his closing statement, the prosecutor made several "irrelevant comments which [had] no bearing on any legitimate issue in the case" (People v Ashwal, 39 NY2d 105, 109) and, in stating that "[p]rosecutors seek justice and juries deliver it in cases such as these," he "exceed[ed] the bounds of legitimate advocacy" (People v Melendez, 11 AD3d 983, 984, lv denied 4 NY3d 888; see People v Benedetto, 294 AD2d 958, 959). Furthermore, the prosecutor impermissibly warned the jury not to "fall into the same trap the Department of Social Services has fallen into," whereby the victim "got lost in the system." "Such appeals to emotion tend to deflect the jurors' attention from issues of fact on the question of guilt or innocence" (People v Bowie, 200 AD2d 511, 513, lv denied 83 NY2d 869), and cause them instead to focus on protecting the victim and correcting an alleged error in the child protective system (see generally People v Ivey, 83 AD2d 788, 789). We can only conclude herein that the prosecutor's "inflammatory [comments had] a decided tendency to prejudice the jury against the defendant" (Ashwal, 39 NY2d at 110; see People v Carter, 31 AD3d 1167, 1169; People v Almethoky, 9 AD3d 882).

Another big win for Mary Davison.

Forfeiting Peremptory Challenges Used in a Discriminatory Manner is a Permissible Remedy for Batson Violations

The Court of Appeals, in People v Luciano, 2008 NY Slip Op 04898 [6/3/08] has held that forfeiture or permeptory challenges is a permissible remedy for attorneys who exercise peremtory challenges in violation of the constitiuion under Batson v Kentucky, 476 US 79 [1986] and its progeny. However, the Court noted

that the free exercise of peremptory challenges is a venerable trial tool that should be denied only in rare circumstances. In fashioning the proper remedy, a trial judge may consider, among other factors, whether the challenged juror is available to be reseated, whether the litigant appears to be engaging in a pattern of discrimination, and the number of peremptory challenges that remain to be exercised. While even a single instance of discriminatory conduct may warrant forfeiture, where the finding of discrimination is close, forfeiture may not be an appropriate remedy (citations omitted).

In Luciano the trial court's ruling that cousnel has forfeited permentory challenges was error and the defendat was entitled to a new trial

because the trial judge was under a misapprehension that the law required forfeiture and failed to exercise the requisite discretion. As the court stated, "The law is that if you exercise the strikes and you determine them to [have been made] on a[] discriminatory basis, you forfeit those rights." As a result, defense counsel exhausted his peremptory challenges before the completion of jury selection. This is reversible error, entitling defendant to a new trial. In so holding, we reach no conclusion as to whether there was indeed a Batson violation or whether forfeiture would have been a proper remedy had discretion been exercised.

Taking Keys to Car is a Seizure Even if Car Isn't Searched

In People v Colligan, 2008 NY Slip Op 05133 [4th Dept 6/6/2008] the Court held that it was error to deny a suppression motion where, prior to the issuance of a warrant to search a car, the police took the keys to the car from the defendant and sat out with the automobile. Since the hearing record did not show that probable cause existed as such time, this was unlawful in that

[a]lthough they did not search the automobile until the search warrant had been obtained, "there is no lesser invasion in the detention or holding of an automobile while a warrant [is] obtained than in an immediate entry of an automobile to search for contraband or evidence" (People v Singleteary, 35 NY2d 528, 533; see People v Brosnan, 32 NY2d 254, 259-260).

Murder Conviction Reversed Because of Discovery Violations

In People v Davis , 2008 NY Slip Op 05131 the Fourth Department reversed a murder conviction because it found that the prosecutor's repeated discovery violations and the court's denial of a brief adjournment to allow the defendant to review the materials when eventually provide prejudiced the defendant.

Here, despite defendant's demand therefor, the People failed until the day of jury election to disclose, inter alia,a 12-page firearm analysis with photographs from the Monroe County Public Safety Laboratory. The court denied defendant's request for a 48-hour adjournment to review the analysis and photographs.Following the testimony of the People's first witness, the prosecutor provided defense counsel with a report concerning blood recovered from the clothing of defendant and the victim. The court denied defendant's request for an adjournment for the remainder of the afternoon to review the report. On the second day of trial, the prosecutor disclosed to defendant a report from the Medical Examiner concerning blood collected the day after the victim's death. Defendant moved for a mistrial based on the late disclosure of evidence and, although the court referred to the conduct of the People as "very disturbing," it reserved decision on the motion. The following day, the court permitted the People to introduce five undisclosed autopsy photographs of the victim depicting the gunshot wounds to his body....We conclude under the circumstances of this case that the People's conduct resulted in substantial prejudice to defendant. Here, as noted, defendant presented a justification defense (see Penal Law § 35.15 [2] [a]), and we conclude that the autopsy photographs exhibiting gunshot entry points and trajectories, the firearm analysis, and the analysis of blood discovered on the clothing of defendant and the victim may have been relevant to demonstrate the distance from which the bullets were fired as well as their trajectory. Furthermore, the scientific evidence requested by defendant could have been used "to determine whether further inquiry would possibly lead to information favorable to defendant's case" (People v DaGata, 86 NY2d 40, 45). Although the "potential prejudice arising from noncompliance with the continuing duty of disclosure under CPL 240.20 could [have been] cured by the granting of a continuance" (People v Eleby, 137 AD2d 708, 709), here the court denied defendant's requests for even brief adjournments.

New York State Ignores All Four Appellate Divisions

I previously reported that the Appellate Division, Fourt Department, in People of State of New York ex rel. Lucas Foote v Piscotti, held that persons charged with violating the terms of post release supervision not imposed by judges are entitled to immediate release. In fact, the other three Appellate Divisions have all issued similar decisions (People ex rel Lewis Ward, __ AD3d __, 2008 WL 2051102 [1st Dept 5/1/08]; People ex rel Gerard v Kralik, 2008 NY Slip Op 04895 [2nd Dept 5/27/08]; Prendergast v NYS Dept of Corrections, __ AD3d __, 2008 WL 1902192 [3d Dept 5/1/08]).

Seems pretty clear. So what has our State done with the hundreds of persons currently being incarcerated in New York state based on violations of PRS not imposed by judges? They have sent memos to the judges about how they can get them re-sentenced, and have written to the inmates telling them they will be subject to re-sentencing, but have taken no steps to release these people being held without any valid commitment order or to inform them that they are being illegally detained and are entitled to release forthwith. The Attorney General has taken the position that even when the commitment do not show any judicially imposed sentence of PRS and when the only PRS was illegally imposed by DOCS the person should be held in custody because the commitment order may be incorrect.

Phrased differently, the Attorney General, without citing any authority, argues that, rather than being bound by the terms of commitment orders, DOCS is free to ignore them since they may be incorrect (sort of a presumption of irregularity). And the argument is that, based on this possibility, the person can be detained despite the absence of any commitment order justifying continued custody. In a different context, the Fourth Department held in People v Williams, 191 AD2d 989 [4th Dept 1993] “The police are not at liberty to arrest and hold a suspect while they search for evidence sufficient to justify their action [citations omitted].”

Sunday, June 01, 2008

Our Government is Incarcerating Many People Without Any Lawful Authority

The Executive branch of our government is knowingly incarcerating many people whom it knows it has no legal authority to incarcerate. It appears to be our government's policy that, although it is unlawful to incarcerate these individuals, the government will continue to keep them in custody unless and until each affected individual wins a habeas corpus proceeding resulting in a court order for his release. Nor has our government even notified the affected individuals that they are being held unlawfully. Such illegal incarcerations predicated on a wholesale disregard for the law by our government undermines the very authority of our government to expect people to follow its laws. It ought to be offensive to those who expect our government to be one of law. It also risks civil damages for illegal imprisonment based on this unlawful incarceration.

No, I am not referring to the Bush administration and Guantanamo. Rather, I am addressing the fact that a month after the New York Court of Appeals has expressly held that sentence of post release supervision [PRS]not imposed by judges are void and a week after the Appellate Division, Fourth Department held that consequently a person in custody for violating the terms of PRS not imposed by a judge is entitle to be discharged "from custody forthwith" neither the New York State Division of Parole nor the New York State Department of Corrections has taken steps to discharge from custody the many people currently incarcerated for violating the terms of PRS not imposed by a judge. Rather, all that New York is doing with respect to these unlawfully incarcerated individuals is taking steps to have them lawfully sentenced to PRS by judges. But, of course, even after these people are lawfully sentenced to PRS they cannot be lawfully incarcerated for conduct which predates the imposition by a judge of a sentence of PRS. So, these people are all entitled to immediate release. Yet, absent any lawful sentence or authority, New York continues to keep these people locked up.

If you are offended by our government's wholesale disregard of its laws, you might want to write to Brian Fischer, Commissioner, NYS Department of Correctional Services, Building 2,1220 Washington Ave, Albany, New York 12226-2050 and to George P. Alexander, Commissioner of the NYS Division of Parole,97 Central Avenue, Albany, NY 12206 urging that they follow the law and work to insure the immediate release of persons held in New York prisons for violating the terms of PRS which were not imposed by a judge.

Friday, May 23, 2008

One Cannot Be Incarcerated For Violating The Terms Of Post Release Supervision Not Imposed By A Judge

After the Court of Appeals held that post release supervision sentences added by the Department of Corrections or by court personnel, other than judges are not validly imposed, but that resentencing was available in such cases for a court to lawfully impose such a sentence (People v Sparber)the questioned remained whether persons charged with violating the terms of post release supervision not imposed by judges are entitled to immediate release. Today, in People of State of New York ex rel. Lucas Foote v Piscotti the
Fourth Department answered this question with a clear "yes."
Petitioner commenced this habeas corpus proceeding contending that the Department of Correctional Services (DOCS) lacked the authority to include a period of postrelease supervision in petitioner's sentence calculation because the sentencing court had not imposed a period of postrelease supervision. County Court erred in refusing to sustain the writ of habeas corpus based upon its conclusion that postrelease supervision was mandated by law and that nullification of postrelease supervision would render petitioner's sentence invalid. As the Court of Appeals has written, "[b]ecause CPL 380.20 and 380.40 collectively provide that only a judge may impose a [postrelease supervision] sentence, we conclude that DOCS may not do so" (Matter of Garner v New York State Dept. of Correctional Servs., ___ NY3d ___, ___ [Apr. 29, 2008]).

Thus, the Court ordered that Sheriff discharge petitioner from custody forthwith.

Wednesday, May 21, 2008

Recent Third Department Reversals, Modifications and Dissents

by Tim Davis, Esq.

People v Hackett, 47 AD3d 1122 (January 24, 2008)

Late one night, a State Trooper observed the defendant drive his vehicle over the fog line. The Trooper activated his emergency lights. After pulling over to the side of the road, the defendant leaned toward the passenger seat of his vehicle before the Trooper approached. The Trooper requested both license and registration, but defendant produced only the registration. Upon questioning defendant concerning his movement within the vehicle, defendant explained he was reaching for his cell phone, which he then showed to the Trooper.

The Trooper ordered defendant out, and decided to detain him for a traffic violation. The Trooper handcuffed defendant for safety reasons, and placed him in his patrol car while he ran a warrant check. He made no effort to determine whether defendant possessed a valid driver's license. Once a second Trooper arrived, the first went to defendant's vehicle, opened the passenger door and looked at the floor board. Seeing nothing, he bent down and shone his flashlight underneath the passenger seat, discovering a loaded handgun. A later search revealed a quantity of cocaine as well.

Indicted for two counts of Criminal Possession of a Controlled Substance in the Third Degree and three counts of Criminal Possession of a Weapon in the Third Degree, defendant moved to suppress the handgun and cocaine. The lower court relied on the minutes of the preliminary hearing - at which just the Trooper testified - and denied the request.

The Third Department, relying on People v Torres, 74 NY2d 224 [1989], held that the Trooper had no probable cause to return and search under the front passenger seat of defendant’s vehicle, when the defendant was secured and there was no imminent threat the Trooper’s safety. Although the defendant was driving erratically and disappeared from sight when he leaned toward the passenger seat, he explained this movement and produced his cell phone. Further, although the Trooper thought the defendant seemed nervous and repeatedly looked at his vehicle, this conduct was insufficient to justify a search. The search was unlawful because 1) there was no basis for the Trooper to believe a weapon was within the vehicle, and 2) no actual or specific danger threatened the safety of the officers.

People v Hasenflue, 48 AD3d 888 (February 21, 2008)

In March 2003, the defendant represented himself at trial, and was convicted of Attempted Aggravated Assault on a Police Officer, Reckless Endangerment in the First Degree and Aggravated Harassment in the Second Degree. He appealed, and argued that the court erred in proceeding to trial without completing a 730 exam, which was ordered by another judge at arraignment. Before trial, two psychologists attempted to examine the defendant, but made no determination as he refused to cooperate. In People v Hasenflue, 24 AD3d 1017, the Third Department held that the defendant was “deprived of his right to a full and fair determination of his mental capacity to stand trial,” and remitted the case for a reconstruction hearing.

Both counsel and the two psychologists who tried to interview defendant testified at the reconstruction hearing. The psychologists reviewed all the defendant’s psychiatric records and the court proceedings, leading them to opine that he was competent. Based upon this testimony, the court determined that the People established defendant’s competency to stand trial by a fair preponderance of the evidence.

The Third Department reversed, concluding it was not possible to determine defendant's competency given the lack of any contemporaneous psychiatric examinations/evaluations at the time of trial. While relevant to the ultimate issue, neither his observed demeanor at trial nor his self representation was sufficient to establish his competence.

People v Revette, 48 AD3d 886 (February 21, 2008)

Defendant was charged with setting two fires to the home of her ex-boyfriend, with whom she was involved in a custody dispute. She was convicted after trial of Arson in the Third Degree (two counts) and Burglary in the Third Degree (two counts).

Before trial, defendant sought dismissal of the indictment pursuant to CPL § 210.35(5), arguing that a grand juror was married to one of the three deputy sheriffs who investigated the fire and testified before the grand jury.

As a close relationship between a grand juror and a witness raises the risk of prejudice, the Third Department held that the prosecutor should have enquired whether the juror could fairly evaluate the evidence. Although the prosecutor asked the juror if she could remain impartial, he received an ambiguous response which he never asked her to clarify. This was significant as the number of jurors voting to indict was not recorded, and the testimony of the juror’s husband was important to the case.

People v Ramos, 48 AD3d 984 (February 28, 2008)

Defendant was convicted after trial of Burglary in the Second Degree and Criminal Mischief in the Third Degree. The court sentenced him to twelve years determinate on the burglary and four years determinate on the criminal mischief.

On appeal, defendant argued he should have been sentenced to an indeterminate term on the criminal mischief as it is a non-violent felony. The People conceded this was error. The Third Department vacated the sentence and remitted the case to the trial court.

People v Westerling, 48 AD3d 965 (February 28, 2008)

Defendant was charged with abducting and then raping his estranged girlfriend. He was convicted after trial of Rape in the First Degree, Criminal Sexual Act in the First Degree (two counts), Kidnaping in the Second Degree, Coercion in the First Degree, Criminal Use of a Firearm in the First Degree, Criminal Contempt in the First Degree (two counts) and Resisting Arrest.

The main issue on appeal was the trial court’s Molineux ruling permitting the People to introduce evidence of numerous domestic violence incidents between defendant and the complainant. In addition to a number of specific instances of violence, the trial court permitted the complainant to testify that defendant hit, bit or threw her approximately 100 times during their three-year relationship. The Third Department ruled it was improper for the court to allow her to testify to unparticularized acts occurring over such a lengthy period.

The potential prejudice of this testimony was exacerbated by the court’s failure to provide the jury with cautionary instructions regarding the limited purpose of this evidence. The court's final instructions were insufficient to cure this deficiency after the jury heard such evidence without any guidance as to its purpose.

People v Haddock
, 48 AD3d 969 (February 28, 2008)

Defendant was convicted after trial of failing to comply with SORA - failing to register on an annual basis, and failing to register within ten days of a change of address.
On appeal, defendant raised the trial court’s refusal to charge the jury that the People were required to prove he knowingly failed to comply with SORA's registration requirements.

Although Correction Law § 168-t contains no requirement of a culpable mental state, the Third Department held that the legislature did not intend to create a strict liability crime. The Court found support for this position in the Pattern Criminal Jury Instructions, which set forth knowledge as an element. Although the People's proof included ample evidence of defendant's knowledge, the Third Department held that the failure to provide such a charge could not be regarded as harmless error.

People v Karika, 48 AD3d 980 (February 28, 2008)

Defendant was charged with Criminal Sexual Act in the First Degree and Sexual Abuse in the First Degree.

During his preliminary instructions, the trial judge correctly advised the jury not to consider the sentence the defendant might receive if convicted, as that was a matter solely for the court to determine. However, immediately before making this statement, the court inexplicably related a recent out-of-court conversation in which someone asked what the court might do when a person commits the charged crime without really meaning to, or knowing the proscribed conduct is unlawful. The court replied: “[I]f a jury decides they are guilty, I give them an unconditional discharge or conditional discharge. It reflects itself in the sentence.”

Defense counsel did not immediately object to this statement, but during the charge conference asked for a curative instruction as the jury might believe the defendant in this case - if found guilty - could receive a conditional or unconditional discharge.
The Third Department first ruled that counsel preserved this challenge even though he waited until the charge conference to request a curative instruction. The issue was raised in time for the court to act.

The Court then reversed, finding that the trial judge basically told the jury the defendant could receive a conditional or unconditional discharge if he were convicted of Criminal Sexual Act in the First Degree. This may have led the jury “to a scrutiny of the evidence less close than that to which defendant was entitled”

Sunday, May 04, 2008

Post Release Supervision: What is the Remedy When Not Imposed By a Judge?

In People v Sparber, 2008 NY Slip Op 03946 [NY 4/29/2008], the Court of Appeals finally considered the remedy when sentencing courts fail to pronounce their Post Release Supervision [PRS] terms in accordance with Criminal Procedure Law sections 380.20 and 380.40 and more than a year has past.

The Second Circuit, in considering this issue, held in Earley v Murray (451 F3d 71 [2d Cir 2006]), which held that DOCS's administrative addition of a PRS term not pronounced by Supreme Court violated federal "due process guarantees" (id. at 76 n 1) and should therefore be excised from the petitioner's sentence on a motion for a writ of habeas corpus. The New York Court of Appeals agreed with the Second Circuit that only a judge, and not prison or court clerks can impose PRS. However, the Court disagreed as to the remedy and as to the effect of the one year limit on th eabilty of prosecutors to seek resentencing set forth in CPL 440.40 [1]. The Court explained

It is indisputable that the relief that defendants request — expungement of their PRS terms — would permit them to serve a sentence not in compliance with the statute. But defendants say that this result is required because the People failed to seek proper resentencing within one year from the date of their convictions and did not properly preserve their objection to defendant's expungement remedy before the trial court (see CPL 440.40 [1])[FN6]. Defendants are incorrect. The sole remedy for a procedural error such as this is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement (see People v Sturgis, 69 NY2d 816, 817-818 [1987] ["[A] sentence [that] violates the mandate of CPL 380.20 . . . must be vacated and the case remitted to the trial court for resentencing"]; see also People v Stroman, 36 NY2d 939, 940-941 [1975] [violation of CPL 380.40 requires reversal and remitter for resentencing]).[FN7]

In all five of these cases, there exists no procedural bar to allowing the sentencing [*9]court to correct its PRS error [FN8]. It is obvious that at the time of each defendant's sentencing, Supreme Court intended to impose a sentence in compliance with the provisions of Penal Law §§ 70.00 (6) and 70.45 (1) — one that consisted of a determinate sentence and a period of PRS. No record evidence rebuts that presumption. Thus, the failure to pronounce the required sentence amounts only to a procedural error, akin to a misstatement or clerical error, which the sentencing court could easily remedy (see People v DeValle, 94 NY2d 870, 871 [2000]; People v Wright, 56 NY2d 613, 614 [1982]; People v Minaya, 54 NY2d 360, 364-365 [1981]).

Two footnotes to ponder. First note 6:
Defendants could, of course, move "[a]t any time" for resentencing (CPL 440.20 [1]). Their failure to exercise that right does not entitle them to the remedy requested here. Further, a court's authority to correct its own errors at resentencing is not subject to the one-year time limit imposed on the People by CPL 440.40 (1) (see People v Wright, 56 NY2d 613, 615 [1982] ["(I)t is clear that CPL 440.40 is intended only as a limitation on the People with reference to an 'invalid [sentence] as a matter of law' not imposed by mistake"]).

This note raises at least three questions. First, how could a defense attorney ethically move to have his client's sentence increased? Second, why would she do so? Third, in the divide between invalid sentences and mistaken sentence, how can the failure to be impose a mandatory PRS not be classified as an invalid sentence subject to the one year limitation?

Then comes note 7:
Defendants assert that CPL 450.90 precludes us from remitting for resentencing because the People, having prevailed below, are not entitled to that affirmative relief from this Court. Defendants are mistaken. Rather than affirmative relief to the People, this Court is merely giving a more limited form of relief to defendants than they seek.

So when the defendant argues that the PRS sentence was unlawfully imposed by prison or court officials other than a judges and that he is not and cannot be now subject to PRS, ithe imposition of PRS is just a limited form of the relief that defendant wanted. Which defendant ever asked for or wanted PRS?

Saturday, May 03, 2008

Weapons and Assault Sentences to Run Concurrently

In People v Torres, 2008 NY Slip Op 03888 [4th Dept 4/25/2008], the Court agreed
with defendant...that County Court erred in directing that the sentence imposed on the count of criminal possession of a weapon shall run consecutively to the sentence imposed on each count of attempted assault and attempted aggravated assault. There is no evidence that defendant "possessed the pistol with a purpose unrelated to his intent to shoot [the officers]" (People v Hamilton, 4 NY3d 654, 658), and thus the sentence imposed on the count of criminal possession of a weapon in the second degree must run concurrently with the sentences imposed on those counts (see People v Manor, 38 AD3d 1257, 1259, lv denied 9 NY3d 847; People v Boyer, 31 AD3d 1136, 1139, lv denied 7 NY3d 865).

Robbery Conviction Reversed As Against Weight of Evidence

In <People v Newkirk, 2008 NY Slip Op 03879 [4th Dept 4/25/2008], the Court agreed
with defendant that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495). Although the weight of the evidence establishes that defendant and two accomplices went to the wholesale club with the intent to commit a larceny, it does not establish that defendant forcibly stole property (see generally id.).

The evidence presented at trial establishes that, upon entering the wholesale club, defendant and one of his accomplices saw a loss prevention employee, who was seated in a wheelchair at the entrance/exit. After entering the wholesale club, defendant and that accomplice each picked up two boxed computer monitors, intending to steal them. As they approached the exit, the accomplice ran out first, whereupon the employee attempted to grab one of the boxes, causing the wheelchair to spin. The employee then left his wheelchair and followed the accomplice on foot. Defendant remained in the wholesale club and, immediately after the contact between the accomplice and the employee, defendant discontinued his participation in the larceny by dropping the two boxed computer monitors that he was carrying. The accomplice, followed by the employee, continued out of the wholesale club to a vehicle where the second accomplice was waiting. When the two accomplices attempted to drive away in the vehicle, the accomplice who had been with defendant in the wholesale club punched the employee in the face, causing the employee physical injury. Defendant walked out of the store as the two accomplices drove away in the vehicle, and he offered aid to the employee before walking away. [*2]

The evidence weighs heavily in favor of a finding that defendant neither "forcibly [stole] property" (Penal Law § 160.10), nor "solicited, requested, commanded, importuned, or intentionally aided [the accomplice in the wholesale club] in the commission of the crime" (People v Carr-El, 287 AD2d 731, 733, affd 99 NY2d 546; see § 20.00; cf. People v Allah, 71 NY2d 830, 832; People v Harris, 19 AD3d 871, 873-874, lv denied 5 NY3d 806; People v Mejia, 297 AD2d 755, lv denied 99 NY2d 561). We thus conclude that the jury failed to give the evidence the weight it should be accorded on the issue whether defendant shared "the mental culpability necessary to commit the crime charged," i.e., the intent to commit a forcible theft (Carr-El, 287 AD2d at 733; see generally Bleakley, 69 NY2d at 495).

Defendant Needs to Object to Conflict of Interest

In People v Peterson, 2008 NY Slip Op 03822 [4th Dept 4/25/2008], the Court held that where a defendant contended that County Court failed to engage in a sufficient Gomberg inquiry when the court learned that defendant and a codefendant were represented by the same attorney (see People v Gomberg, 38 NY2d 307, 313-314) the "Defendant failed to preserve that contention for our review (see People v Woods, 6 AD3d 1126, 1127, lv denied 3 NY3d 683...." What duty does the Court have to point out the potential problem to the defendant?

Evidence of ABSENCE of Sexual Activity Barred by CPL 60.42

The Court in People v Bones, 2008 NY Slip Op 03788 [4th Dept 4/25/2008] held that
The court properly determined that CPL 60.42, which concerns the admissibility of evidence of a victim's past sexual activity, also concerns the admissibility of evidence of the absence of sexual activity on the part of the victim (see generally People v Williams, 81 NY2d 303, 311; People v Nemie, 87 Cal App 3d 926, 929).

Can Contrary Verdicts For Co-Defendants Be Repugnant?

Although the answer to the question posed by the caption is "yes," the Court in People v McLaurin, [4th Dept 4/25/2008]rejected a claim that that a verdict convicting a father of resisting arrest was repugnant to the jury's acquittal of the son on that charge, where they had the same defense - that the son was not present. The Court explained that

[A] conviction will be reversed [as repugnant] only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered" (People v Tucker, 55 NY2d 1, 7, rearg denied 55 NY2d 1039). That rule also applies when one codefendant is convicted of a crime while another is acquitted of the same crime (see generally People v Green, 71 NY2d 1006, 1008; People v Hampton, 61 NY2d 963, 964). With respect to the charge of resisting arrest against defendant's son, the jury's finding that the People failed to prove beyond a reasonable doubt that defendant's son "prevented or attempted to prevent a police officer from performing an authorized arrest of himself" did not negate any element of either the resisting arrest charge or obstructing governmental administration charge against defendant. Defendant further contends that the verdicts are repugnant because both he and his son relied upon the same defense at trial, i.e., that the son was never present, and the jury must have found that the son was not present in order to acquit him. We reject that contention inasmuch as it involves "an attempt to divine the jury's collective mental process of weighing the evidence," which is prohibited (Tucker, 55 NY2d at 4).

IAC Claims Need to be Preserved

The Court in People v Hall, 2008 NY Slip Op 03738 [4th Dept 4/25/2008], in rejecting a claim of ineffective assistance of counsel, held that

To the extent that the contention of defendant that he was denied effective assistance of counsel survives his plea of guilty (see People v Burke, 256 AD2d 1244, lv denied 93 NY2d 851), we note that defendant failed to preserve that contention for our review (see People v Tantao, 41 AD3d 1274; People v Fulford, 296 AD2d 661, 662).

Attack a Plea at Your Peril

In another reminder to counsel of the need to to be cautious in attacking a guilty plea, the Court, in People v Hinckley, 2008 NY Slip Op 03737 [4th Dept 4/25/08], in vacating one of two counts of a plea to CSCS in the third degree on finding that the defendant's "plea with respect to that count falls within the narrow exception to the preservation requirement (see Lopez, 71 NY2d at 666)" held that
In as much as defendant's plea was entered upon a negotiated agreement, we note that, in the event that defendant does not enter a plea of guilty to criminal possession of a controlled substance in the third degree upon remittal, the court "should entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety" (People v Irwin, 166 AD2d 924, 925; cf. People v Hall, ___ AD3d ___ [Apr. 25, 2008]).

Attenuation: White, Paulman and Chapple

In People v Parker, 2008 NY Slip Op 03906 [4th Dept 4/25/2008] the Court found that despite a a period of custodial interrogation without Miranda warnings, during which the defendant repeatedly made admissions, the post-Miranda statement was attenuated
The record establishes that, shortly after defendant was taken into police custody, he was questioned by a police officer and made admissions in response to those questions. Before he was transported to the police station, he reiterated those admissions to another officer. No Miranda warnings preceded those statements and, in the ensuing hour, defendant was transported to the police station. Miranda warnings were then administered, after which defendant gave the third statement that he seeks to suppress. Upon a review of the factors set forth in People v Paulman (5 NY3d 122, 130-131), including the time between the Miranda violation and the third statement, the change in location, the fact that "defendant exhibited a willingness to provide an explanation of his conduct and [the fact that], once at the police [station], he never expressed any reluctance to discuss the allegations" (id. at 131; see People v White, ___ NY3d ___ [Mar. 20, 2008]), we conclude that there was "such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning" (People v Chapple, 38 NY2d 112, 115).

Court Cites Decision in Douglas Warney's Appeal In Affirming Conviction Despite Challenges to Confession and Claims of Misconduct

In rejecting the Defendant's contention that he was deprived of a fair trial based on alleged misconduct by the prosecutor in cross-examining defendant's witnesses, the Court, in People v Alexander, 2008 NY Slip Op 04163 [4th Dept 5/2/2008] held that
Defendant's contention with respect to three of the allegedly improper questions is not preserved for our review inasmuch as defendant made only general objections to those questions (see generally People v Pierre, 300 AD2d 1070, lv denied 99 NY2d 631), and we decline to exercise our power to review defendant's contention concerning those three questions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We conclude that the court properly denied defendant's request for a mistrial based on two other allegedly improper questions. The court sustained defendant's objections to those questions and gave curative instructions with respect to them, and "the jury is presumed to have followed" those curative instructions (People v Duvall, 260 AD2d 183, 184, lv denied 93 NY2d 924; see also People v Davis, 58 NY2d 1102, 1103-1104). The remaining allegedly improper questions concern the prosecutor's cross-examination of defendant, and "[i]t does not appear on the record before us that the conduct of the prosecutor during [that] cross-examination . . . was intended merely to harass, annoy or humiliate defendant . . . Rather, it appears that the cross-examination was intended to place defendant in his proper setting and put the weight of his testimony and his credibility to a test, without which a jury cannot fairly appraise [the facts]" (People v Brent-Pridgen, 48 AD3d 1054, 1055 [internal quotation marks omitted]). Defendant failed to preserve for our review his further contention that he was [*3]deprived of a fair trial by prosecutorial misconduct during summation (see People v Smith, 32 AD3d 1291, 1292, lv denied 8 NY3d 849). In any event, "that . . . contention is without merit inasmuch as the prosecutor's comments were either a fair response to defense counsel's summation or were fair comment on the evidence" (People v Green, 48 AD3d 1245, 1245-1246; see People v Williams, 43 AD3d 1336; see generally People v Halm, 81 NY2d 819, 821).

In the same decision the Court rejected an attack on the voluntariness of the confession by citing People v Warney, 299 AD2d 956, 957, 2002 N.Y. Slip Op. 08487,
We reject the contention of defendant that the verdict is against the weight of the evidence (see generally id.). "Issues with respect to the credibility of prosecution witnesses concerning the voluntariness of the confession were for the jury to decide, and there is no basis in the record to disturb the jury's resolution of those issues' " (People v Warney, 299 AD2d 956, 957, lv denied 99 NY2d 633; see People v Sanchez, 267 AD2d 960, lv denied 94 NY2d 906).

Why does that case seem like an odd one to cite in rejecting a challenge to a confession? Perhaps because Douglas Warney's confession was the false product of police misconduct and, after his conviction was affirmed and after he spent 10 years in prison, DNA testing, resisted by the Monroe County District Attorney proved his innocence and the falsity of his confession. Also see this New York Times article.

In Mr. Alexander's case, the fact that he had been interrogated for 9 hours prior to giving a statement was not dispositive, since
the record establishes that there were several breaks in the interrogation during which defendant was left alone, and there is no indication that he sought to end the interrogation, or that he requested food or water, or to use the bathroom (see People v Whitten, 183 AD2d 865, lv denied 81 NY2d 849). The record further establishes that defendant was advised of his Miranda rights a second time and signed a written waiver immediately before signing the statement.

Claim of Right Defense Should Have Been Charged

In People v Ace,2008 NY Slip Op 04162 [4th Dept 5/2/08], the Court reversed a larceny conviction in the interest of justice, holding that County Court erred in failing to charge the jury that his claim of right was a defense to the count of grand larceny, where
Defendant testified at trial that he was instructed by one of the co-owners of the company that employed him to take the allegedly stolen rails to the scrap yard, and that testimony was corroborated in part by one of defendant's coworkers. Viewing the evidence in the light most favorable to defendant, as we must (see People v Banks, 76 NY2d 799, 800; People v Cunningham, 12 AD3d 1131, 1132, lv denied 4 NY3d 829, 5 NY3d 761), we conclude that there is a reasonable view of the evidence that would enable a jury to find that defendant took the rails under a claim of right (see generally People v Moscato, 251 AD2d 352, 352-353; People v Ricchiuti, 93 AD2d 842, 844).

Considering that the instruction was not requested by counsel, that is quite a win for Mary Davision.

"I Did This Before" Admissible as Res Gestae

In a prosecution for murder in the fist degree based on a murder committed during a rape (Penal Law § 125.27 [1] [a] [vii]), as well as two counts of rape in the first degree (§ 130.35 [1]), the Court in People v Owens [4th Dep 5/2/08], held that defendant's
contention that the court erred in permitting the victim who [*2]was the subject of the two rape counts to testify that during the course of the rape defendant stated, "I did this before. Sooner or later I'm going to get caught. I might as well face my consequences." The statement was properly admitted as part of the res gestae of the rape counts (see People v Lewis, 25 AD3d 824, 826, lv denied 7 NY3d 791, 796; PPeople v Ayala, 273 AD2d 40, lv denied 95 NY2d 863; People v Chavys, 263 AD2d 964, 965, lv denied 94 NY2d 821), and it constituted an admission with respect to those counts (see generally People v Geddes, ___ AD3d ___ [Mar. 14, 2008]; People v Figgins, 48 AD3d 1042). We note that the court properly instructed the jury to consider the testimony only with respect to the rape counts, and not the murder counts, thus limiting " the possibility of prejudice' " (People v Dozier, 32 AD3d 1346, 1347, lv dismissed 8 NY3d 880; see generally People v Dickson, 21 AD3d 646, 647).

When Can Multiple Acts Be Grouped Together in an Intentional or Depraved Assault Count?

Five months after oral argument, in People v Bauman [2008 NY Slip Op 04182](4th Dept 5/2/08] a divided Fourth Department issued a decision addressing the propriety of grouping multiple acts over an extend period of time in a single count charging intentional or depraved indifference assault.

The allegations are indisputably ugly. The People presented evidence that
defendants resided with the victim, who suffers from multiple sclerosis, and that over an eight-month period they allegedly struck the victim with, inter alia, their fists, a baseball bat and a hammer. That alleged conduct by defendants caused the victim to sustain various injuries, including a detached retina, fractured fingers, ribs and facial bones, and internal bleeding. The People also presented evidence that defendants allegedly burned the victim with a frying pan, scalded him with hot water, denied him food, locked him in a basement room for several hours at a time, and required him to sleep in the unheated basement on a plastic lawn chair. Emergency personnel who were called to the residence found the victim in the basement, near death.

The two co-defendants were each charged with both intentional and depraved indifference assault. Both counts listed numerous acts. The intentional assault count alleged that "[defendants] caused such injury . . . by means of a dangerous instrument, to wit: a baseball bat and/or a frying pan and/or a vacuum cleaner and/or a hammer." The depraved assault count alleged that

on or about and between August 1, 2004 and April 7, 2005, under circumstances evincing a depraved indifference to human life, recklessly engaged in a course of conduct which created a grave risk of death to another person . . . by striking said person about the head and body with fists and/or a baseball bat and/or a hammer; and/or burning said person with a frying pan; and/or scalding said person with hot water; and/or placing a vacuum cleaner hose on said person's genital area; and/or providing inappropriate and/or inadequate nutrition; and/or subjecting said person to inadequate and/or inappropriate living conditions; and/or failing to seek medical attention and thereby caused serious physical injury to [said person].

The trial court dismissed both counts of the indictment as duplicitous and the People appealed. In a signed opinion by Presiding Justice Scudder, the three justice majority affirmed.

With respect to the intentional assault the Court explained
Here, the alleged use by defendants of multiple dangerous instruments caused the victim to sustain multiple serious physical injuries, including second degree burns, fractured facial bones, fingers, and ribs, as well as internal bleeding. We thus conclude that count one charges more than one offense. It is of particular "significan[ce] that the charged conduct was not the product of one impulse,' permitting only one prosecution no matter how long the action may continue, but[, rather, the charged conduct was the product of] successive and distinguishable impulses, each able to support a separate charge" (People v Okafore, 72 NY2d 81, 87; cf. People v Hines, 39 AD3d 968, 969-970, lv denied 9 NY3d 876). Indeed, we note that a jury might find both that defendants committed the offense of intentional assault by burning the victim's arm with a hot frying pan and that they committed the offense of intentional assault by breaking the victim's fingers with a hammer. Thus, in the event of a conviction, "there is such a multiplicity of acts encompassed in [count one] as to make it virtually impossible to determine the particular act [or acts of intentional assault] as to which the jury reached a unanimous verdict" (Keindl, 68 NY2d at 421; cf. Hines, 39 AD3d at 969-970). "The [potential] prejudice to the defendant[s] is manifest" (Keindl, 68 NY2d at 421).

The dissenting judges agreed with this portion of the decision. It was the Court's holding regarding the depraved assault count that divided the Court. The majority held that
Although the alleged conduct in count two is not duplicitous with respect to the element of depraved indifference to human life, we nevertheless conclude that, as with count one, in the event of a conviction there "is such a multiplicity of acts . . . as to make it virtually impossible to determine the particular" conduct that allegedly created a grave risk of death or which serious injury was thereby caused, and thus whether the jury reached a unanimous verdict (Keindl, 68 NY2d at 421; cf. Hines, 39 AD3d at 969-970). A jury might find that the alleged aggregate conduct over the eight-month period created a grave risk of death, resulting in the serious physical injuries of lowered body temperature and unconsciousness of the victim, but it might [*3]also find that the alleged course of conduct of repeatedly beating the victim caused a grave risk of death resulting in the serious physical injuries of, inter alia, fractures and internal bleeding. Indeed, a jury might find on the alleged facts that defendants' ongoing conduct created a grave risk of death on several occasions over the eight-month period, each of which resulted in serious physical injury (see generally Penal Law § 120.10 [3]). By way of contrast, in the event that the same ongoing conduct alleged in count two had resulted in the death of the victim, the multiple acts would have caused a single result, i.e., death (see § 125.25 [2]; see generally People v Dickerson, 42 AD3d 228, 234-235, lv denied 9 NY3d 960). With respect to the offense of assault in the first degree, Penal Law § 120.10 (3) contemplates that the result of reckless conduct creating a grave risk of death is serious physical injury and, here, there are multiple serious physical injuries that were caused by the alleged acts over the eight-month period. Thus, because count two alleged "the commission of a particular offense[, i.e., depraved indifference assault,] occurring repeatedly during a designated period of time" (Keindl, 68 NY2d at 418), that count is duplicitous (see generally id. at 417-418).

By contrast, the two dissenting justices in an opinion by Justice Fahey, reasoned that
depraved indifference assault is akin to the crimes of endangering the welfare of a child or depraved indifference murder, because it is "a crime that by its nature may be committed either by one act or by multiple acts and readily permits characterization as a continuing offense over a period of time" (People v Keindl, 68 NY2d 410, 421; see People v Brammer, 189 AD2d 885, lv denied 81 NY2d 967).Based on our conclusion that depraved indifference assault is a continuing crime, we are then faced with the issue of duplicity.....The test for duplicity that has evolved is whether, under a particular count alleged to be duplicitous, a defendant can "be convicted of [any] of the crimes charged therein, should the district attorney elect to waive the other[s]" (People v Klipfel, 160 NY 371, 374; see Butler, 161 Misc 2d at 984).... Gravamen is the essence of a claim (see Black's Law Dictionary 721 [8th ed 2004]). Here, the gravamen of the act of depraved indifference assault is that the defendants acted with depraved indifference. The character of the act is defined by the ongoing abuse of the victim, which resulted in both serious physical injury and a grave risk of death. In view of our determination that depraved indifference assault is a continuing crime, we are compelled to conclude that there was only one occasion on which defendants' conduct resulted in serious physical injury and a grave risk of death, i.e., on April 7, 2005. We thus conclude that count two of the indictment is not duplicitous because it alleges a continuing offense with a series of serious physical injuries culminating in a grave risk of death on one occasion.

Finally, we note that, as the Court of Appeals stated in the context of depraved indifference murder, "a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim" is a prime example of depraved indifference (People v Suarez, 6 NY3d 202, 212). Such a course of conduct must necessarily involve multiple incidents. If one were to contend that the inclusion of multiple incidents renders a depraved indifference count duplicitous, then it would be impossible to prove an allegation of "a brutal and prolonged course of conduct" in support of a charge of depraved indifference. The allegations of depraved indifference assault in this case, if proven, establish the requisite shocking and callous conduct toward a particularly vulnerable victim over a prolonged period of time.

Wednesday, April 30, 2008

Selected Criminal and Family Law Decisions From the First Department

By Janet Somes:

From January & February, 2008


People v Stephens, 47 AD3d 586 (decided Jan. 31, 2008)
Lower court order of suppression of evidence reversed (ouch). Defendant was taking a walk in area where there had been some robberies. One hand was swinging while his other hand was still, near his waistband. Defendant “apparently noticed the officers” but kept looking straight ahead “as if he was very nervous or had seen a ghost”. When cops got out of car D ran and cops caught him, but not before he threw gun under a car (and some drugs too). Lower court’s finding that D’s behavior was innocuous, and reasonable suspicion lacking, was wrong, as First Dept explained that cop had suspicion that D carrying a gun based upon the way he was walking, and that suspicion was heightened when he ran away before cops could ask him questions.

People v Inglasis, 47 AD3d 593 (decided Jan. 31, 2008)
In burglary trial, it was not ineffective, or otherwise prejudicial for defense counsel to elicit from detective that he “believed” defendant had been arrested for prior robberies, given that the court immediately “struck” the testimony.

Matter of Elvin G., 47 AD3d 527 decided Jan. 29, 2008)
Search issue in JD proceeding. Lower court denied suppression without hearing on ground of factual inadequacies in allegations. Affirmed. Dean of school, responding to teacher reporting an electronic noise, possibly from a cell phone, had all students stand and started “checking” their pockets. D then took a hunting knife out of his pocket and held it in open view. First Department held there was not search, and even if there was, it was reasonably tailored to be least intrusive, most effective means of finding the offending cell phone. Only an issue of law here, which was resolvable on allegations, and no reason to remand for more proof as dissent would have done.
*DISSENT (2 judges): Was the Dean’s actions the least intrusive and most effective means? Send it back for a hearing on that issue. Also, court below failed to apply correct legal standard to this search. No showing that the suspected cell phone presented any kind of threat to safety or educational process, justifying a warrantless search. Also, family court found Dean’s actions necessary to restore order to classroom, but allegations suggested this was a substantial invasion not warranted by a ringing cell phone, which had stopped ringing by the time of the search. There were factual disputes to be resolved.

People v Packman, (January 29, 2008)
Denial of suppression reversed and indictment dismissed in well written decision. Police were looking to arrest driver of vehicle (not D) on forgery charges. They stopped car driven by suspected forger, and told passenger (D) to stay in car and keep hands in sight. D tried to exit vehicle and tried to walk away, but police stopped him. D then told to get out of car. D frisked and a small knife taken out of his pocket. Police asked for ID and D told them it was in his backpack. Police asked if they could open backpack it to get ID. A knife, which was the basis of the CPW conviction, was found in backpack. Not only was frisk illegal, but Court rejects theory that search of backpack was result of benign request and consent. People failed to meet their high burden to show consent was unequivocal product of an essentially free and unconstrained choice. People’s burden under these facts is “insuperable”.
*DISSENT: Consent valid, finding attenuation.

People v Rouse, 47 AD3d 637 (January 29, 2008)
Denial of 30.30 motion affirmed. Pre-trial readiness period of 30 days properly charged to Defendant as time without counsel, notwithstanding that the court had assigned counsel. Court assigned attorney who was in another court. There had been no request by counsel for an adjournment or consent to one. Since counsel had just been assigned and had no knowledge of the case, defendant was still without counsel within the meaning of the statute, according to the court. As to post-readiness delay, six weeks was reasonable for DA to respond to motions and provide Grand Jury minutes.

People v Harrison, 47 AD3d 541 (January 29, 2008)
Burglary third conviction affirmed. Although unpreserved, the issue of whether a van is a building is resolved against D, as the van at issue was an "inclosed motor truck," and it met the definition of a "building" under Penal Law § 140.00 (2) and § 140.20 .

People v Nunez, 47 AD3d 545 (January 29, 2008)
Order granting 30.30 dismissal affirmed. People’s statement of readiness as to challenged time period was equivocal, and held against them. DA told the court that they may not be ready on the trial date of April 17th because the DA may need to try another case that day, and suggested a date of May 2. The time between April 17 and May 2 goes against the DA.

People v Allen, 47 AD3d 543 (January 29, 2008)
CPL 440.30 (1-a) does not permit a D who has pled guilty to seek DNA testing.

People v Collado, 47 AD3d 547 (January 29, 2008)
Police had probable cause where unidentified complainant pointed out D and his companions as guys who tried to rob him. As police approached, men took “evasive” action and one (not D) pulled out “air gun” which resembled firearm. That provided probable cause to arrest and remove D to station. Although police could not find the unidentified complainant of alleged initial robbery, while at station D was conveniently identified by a witness of a different robbery, which resulted in present conviction. No one is bothered that the original unidentified complainant disappeared. Also, on PSR sentencing issue, resort to court documents (worksheet and commitment) will permit the imposition of a mandatory PRS period, where court failed to mention it during sentence (Okay, in light of the Court of Appeals decision in People v Sparber. __ NY3d __ (4/29/08) we know that this part of the decsion is wrong).

People v Holman, 46 AD3d 518 (January 24, 2008)
Court was within its discretion to permit juror to submit written questions for the witness, some of which it struck as improper, and others of which it permitted the witness to answer. Also, counsel consented to both procedure and specific questions asked, so current complaint regarding those issues was waived.

People v Davis, 47 AD3d 506 (January 22, 2008)
Refusal to charge lesser included robbery charge affirmed. Victim testified D displayed what appeared to be a firearm and there is no reason to selectively discredit this one portion of V’s testimony to charge down to a robbery third. Also, accomplice testified he heard D threaten to use gun.
*DISSENT: Jurors could have rejected accomplice’s testimony given the proof which showed no gun, and his failure to mention his current claim about D’s threat to use gun before.

People v Shemesh, (January 15, 2008)
Lower court correctly dismissed indictment (with leave to re-present) for failure to offer D a reasonable opportunity to testify before the GJ. Notice of D’s desire to testify clearly served, as was notice that he would not be able to testify during Passover dates. Although three dates were discussed for D to testify, DA eventually only offered a date when D was observing Passover. People had argued that (1) there is no valid religious reason he could not testify during Passover as attested to by a Rabbi, and (2) D did other things during that time which showed maybe he was not all that devout. First Dept would not even go there. Statutory right to testify conflicted with right to exercise religion, and D was diligent and persistent in trying to schedule a date that did not conflict.
*DISSENT: takes issue with majority’s conclusion that D did not testify on two days before Passover began due to no fault of his own.

People v Jean-Pierre, 47 AD3d 445 (January 10, 2008)
Lower court order of suppression of evidence reversed (ouch again). Arresting officer erroneously believed that a “03" sticker on D’s New Jersey License plate meant that the registration had expired in 2003. Upon stopping car, officer got a whiff of weed and saw some baggies of the stuff. His belief about the registration was reasonable, and it was a error of fact not law. Therefore he was justified in stopping the car.

People v Thomas, 47 AD3d 415 (January 3, 2008)
Conviction reversed and new trial granted. Retained counsel was properly relieved by court over D’s objection. But, court should have provided D a reasonable opportunity to retain new counsel, instead of assigning counsel chosen by the court. D made clear that if the court was going to relieve his first attorney, he wanted to hire a new one of his own choosing. Reversal would also be required by the trial court’s improvident exercise of discretion in refusing to order a CPL 730 examination as requested by new counsel. It had been over a year since the last one and there were strong indications a new exam was needed.

People v Mobley, 48 AD3d 374 (Feb 28, 2008)
Lower court order of suppression affirmed. Even though there was testimony that area was high crime area known for drugs and prostitution, there was no indication of such with regard to the lawfully parked car containing a female and male, which police approached, for no objective, credible reason, requesting information about the reason for their presence. Even if first inquiry justified, nothing about response served to elevate level of suspicion, there was no reason for second approach. Gun in plain view, seen during second approach, suppressed. Court did not buy DA’s argument that second approach was just a continuation of first approach.

People v Graham, 48 AD3d 265 (Feb 14, 2008)
Two counts reversed because court below erred in denying suppression of statements. D given Miranda by one cop, and 8 hours later he told a different cop he did not want to talk. Without re-administering Miranda, second cop told D there was evidence linking him to crime and D confessed. Questioning should have seized after D said he did not want to talk. Error harmless as to other counts.


Matter of Kalya, 47 AD3d 571 (decided Jan. 31, 2008)
Neglect (mental illness) determination affirmed. Mother’s behavior of poor impulse control and poor insight was found by the majority to constitute judgment so strongly impaired as to expose the child to risk of substantial harm as to sustain a finding of neglect. Mother’s mental health challenges included depression, inability to cope, tearfulness to the point of inability to communicate, and anger flare-ups. From the evidence doctors concluded a concomitant inability to care adequately for the child. These opinions and observations were based upon a one week period.
* DISSENT (2 judges). Of the two doctors who testified, neither had observed mother long enough to make mental illness diagnosis (2 hours by one, and 1 week following trauma of miscarriage by the other.) Evidence did not show anything more than a physically exhausted mother who had just suffered a miscarriage and had who momentarily “lost it”. Inadequate evidence of neglect due to mental illness. Also, there was a good reason for mother to become angry with the doctor - - he lied to her and tricked her into thinking she was being sent to a place for a “rest” due to exhaustion, only to learn she was being sent to hospital where she was held for evaluation. Second doctor diagnoses of depression was not shown to cause risk to child. Even if there was proof of mental illness, causal connection between condition and risk of harm not established as there needs to be a substantial probability of neglect resulting in risk to child.

Matter of Joshua R., 47 AD3d 465 (January 15, 2008)
Family Court ordered modified and finding of abuse and derivative abuse vacated (neglect and derivative neglect affirmed). After child refused to eat, father forced food in his mouth causing him to vomit, and slapped child causing a bloody nose and black eye. Neglect and derivative neglect (as to sister) were affirmed. Court noted that there was evidence that father did not believe his striking child was excessive, and the evidence did not support a finding that father inflicted an injury to child "which cause[d] or create[d] a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ" (Family Ct Act § 1012 [e] [I]).
*DISSENT: Other evidence shows father had uncontrolled anger and which creates a substantial risk of the requisite harm.

Matter of Jeffery C. (January 10, 2008)
Family Court adjudication of JD modified with PINS adjudication instead. Isolated incident was basis for the JD. The JD adjudication was not the least restrictive available alternative to meet needs of child and community.

Matter of Medina Armor S. (January 10, 2008)
Family Court termination of parental rights reversed, where court inappropriately found incarcerated father abandoned child. Father in prison on murder conviction, with earliest release date in 2016, and drug addicted mother’s whereabouts unknown. Agency took children to prison once to visit father 4 years before bringing termination petition. Petition alleged failure to communicate or visit for 6 months prior to time petition brought. Caseworker testified that she did not contact father directly, and that she did not know she could. (Family court schooled her on her obligation to communicate directly with incarcerated parent.) Evidence showed agency made no efforts to assist in communication. Right before petition filed, an inmate advocacy group contacted agency to arrange visit with father. “Although the court found respondent had abandoned the children, what it really did was take the easier route to termination of parental rights by improperly applying the ‘permanently neglected child’ element of ‘insubstantial contacts’ (Social Services Law § 384-b[7]) rather than the ‘abandoned’ child standard (§ 384-b[5])”, noting these subdivisions are designed to accomplish two different goals. No abandonment on these facts. Good decision.

Sunday, April 27, 2008

Some Recent Decisions From the Second Department

From Jim Eckert:

People v Russell , 47 AD3d 732 - Defendant, charged with CPW3, claimed temporary lawful possession. The court ruled that the trial court failed to make clear in the jury instructions that the People had to disprove this claim beyond a reasonable doubt, especially in light of the trial court’s failure to adequately marshal the evidence. Answering a jury question on the issue still failed because “the proper standard regarding the burden of proof was not clearly and unequivocally conveyed.” The court apparently went beyond the CJI as well. If the rule on appeal is that the People’s burden "must be clearly and unequivocally conveyed", it would represent a significant improvement over the typical standard, which is whether the charge, taken as a whole, conveys the right standard. The latter test frequently results in approval of a charge which contains contradictory statements of the law. If the trial court doesn't know the law, the jury is still presumed to divine the proper standard from a confused court if it's in the charge somewhere. You'd think that the law must be "must be clearly and unequivocally conveyed", until now you'd have been wrong. You may still be wrong.

People v Gonzalez , 47 AD3d 831 - Following a robbery, the victim gave a description which was at odds in some ways with the defendant’s characteristics. The defense attempted to introduce expert testimony, which was denied without a Frye hearing. The court, citing People v LeGrand (8 NY3d 449) reversed based on the trial court’s refusal to permit the introduction of expert testimony on the reliability of ID testimony.

People v Romeo , 47 AD3d 954 - D “killed [the victim]” in 1985. He agreed to surrender in 1987, but instead fled to Canada and “killed a New Brunswick constable”. He returned to the US and was arrested a few days later. DNA was taken, implicating D, and he was indicted the same month. The prosecution agreed to permit Canada to try the defendant first, and successfully opposed the defendant’s motion to be arraigned first. Speedy trial concerns were raised at this time, and the County Court judge who denied the defendant’s motion said the People would have to live with the risks they were taking. D was convicted in Canada, and the People made no effort to obtain his return. In 1999, the defendant moved to dismiss on constitutional and statutory speedy trial grounds; it was denied. The People successfully argued that the then-existing extradition treaty would have required that his Canadian sentence be commuted. The treaty was amended in 2003 and extradition was sought. In 2006 D pled to Man1 and 7-21 concurrent. He did not renew his speedy trial claim. The Second Departement ruled that his constitutional speedy trial claim was not barred because he had not abandoned it before it was decided - because it was denied in 1999. On the merits, the court held that, murder is serious, but a twelve year delay is extraordinary. That the People may have mistakenly believed that the defendant could be extradited once he was convicted in Canada “militate[s] in the People’s favor”, but not enough. Unspecified prejudice to the defendant was recited, so I am not sure if it’s the obvious, or something not mentioned. The charge was dismissed.

People v Berry , 2008 WL 803939 - Inferential bolstering lives! The People elicited testimony from a detective that a telephone/address book was recovered from one of two people who fled from the scene, and who the complainant said was not the perpetrator. The detective said he photocopied one page from this person’s phone book, and put out a “wanted card” for the defendant. “The plain implication of the detective’s testimony was that [the person with the phone book], who was not called as a witness at trial, accused the defendant of committing the instant offense (see People v Johnson , 7 AD3d 732 ...)”. The People also said, in opening, that this person knew who did the shooting and identified him to police. The defendant’s objection was poor, but the trial court’s ruling demonstrated that it confronted and resolved the issue. Because this implicated the defendant’s confrontation rights, and it was a single eyewitness case, conviction reversed.

Monday, April 07, 2008

AD 4th Dept: Selected Decisions of March 21, 2008

Reckless, But Not Depraved

In People v Bolling 2008 NY Slip Op 02654 (4th Dept 3/21/08), the Fourth Department, once again, has reduced a depraved murder conviction to that of reckless manslaughter. In this case, the Court held that the fatal shot to the decedent’s thigh
"does not warrant a finding that defendant's conduct demonstrated the utter disregard for the value of human life' necessary to support the conviction
of depraved indifference murder (People v Suarez, 6 NY3d 202, 214).”
Other cases in which the Court similarly held that the evidence was insufficient
to support a depraved murder conviction include People v De Capua, 37 AD3d
1189 (4th Dept 2007), People v Smothers, 41 AD3d 1271 (4th Dept 2007),People v Casper, 42 AD3d 879 4th Dept 2007) and People v Lawhorn, 21 AD3d 1289 (4th Dept 2005).

A General Objection Is Generally Insufficient

Reminding attorneys that a general objection is hardly any better than no
objection at all, the Court, in People v Mobley 2008 NY Slip Op 02663 (4th Dept 3/21/2008), held that

Because defendant made only a general objection to the testimony of a
police officer that there was "a point in time in [her] investigation
when [she] came up with the name of a suspect" and that the name of
the suspect was that of defendant, he also failed to preserve for our
review his contention that such testimony constituted inadmissible
inferential hearsay (see People v Piper, 21 AD3d 816, lv denied 5
NY3d 884; People v Pierre, 300 AD2d 1070, lv denied 99 NY2d 631).

Proof of Illegal Entry Insufficient to Establish Intent to Commit Larceny

In affirming a trial court’s pre-trial reduction of a burglary count to one
of criminal trespass, the Court, in People v Holmes 2008 NY Slip Op 02669
(4th Dept 3/21/2008), held that

The evidence before the grand jury, viewed in the light most
favorable to the prosecution (see People v Antonelli, 300 AD2d 312,
313, lv denied 99 NY2d 612, citing People v Manini, 79 NY2d 561), is
legally insufficient to support the burglary charge because the
indictment expressly set forth that defendant intended to commit a
larceny, and the People failed to present evidence from which the
grand jury could infer that he had that intent (see generally People
v Barnes
, 50 NY2d 375, 379). Although "it is not necessary for the
People in a burglary prosecution to demonstrate the exact crime which
defendant intended to commit while unlawfully in the building . . .,
the prosecution in this case expressly limited its theory to one of
larceny, and, having done so, . . . the prosecution [is held] to this
narrower theory alone" (id.).

Sunday, March 23, 2008

Insufficient Inquiry for a Valid Waiver of Appeal

People v Vega 2008 NY Slip Op 02250 (3/14/2008)

The Fourth Department holds that a single inquiry to a defendant which fails to make clear that the loss of the right to appeal is not an automatic consequence of a guilty plea is insufficient to demonstrate a knowing and intelligent waiver of appeal:

we agree with defendant that his waiver of the right to appeal is invalid (see generally People v Lopez, 6 NY3d 248, 256). Supreme Court did not ask defendant during the plea colloquy whether he agreed to waive his right to appeal, and the prosecutor's single inquiry of defendant whether he understood that he was waiving his right to appeal is insufficient to "establish that [he] understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" (id.; see People v Phillips, 28 AD3d 939, lv denied 7 NY3d 761; People v Brown, 296 AD2d 860, lv denied 98 NY2d 767).

Thursday, March 20, 2008

Unreasonable to Respond to Attack

People v Mcclellan 2008 NY Slip Op 02271 (3/14/2008)

In holding that the proof was sufficient for a jury to find justification disproved, the Court held that even if a 17 year old African-American, who was walking with four African-Americans companions in a predominately Caucasian neighborhood, when five Caucasian men yelled racial epithets and initiated a physical confrontation,

actually believed that deadly physical force was necessary," it nevertheless supports a finding that defendant's belief was not reasonable under the circumstances (People v Wesley, 76 NY2d 555, 559; see People v Butera, 23 AD3d 1066, 1068, lv denied 6 NY3d 774, 832).

Saturday, March 15, 2008

Failure to Raise Dispositive Statute of Limitations Defense Will Not Always Result in Finding of Ineffective Assistance of Counsel

In People v Wise 2008 NY Slip Op 02264 (3/14/2008), the Fourth Department has held that under the circumstances of the case (in which the People on appeal conceded that a conviction for one of the counts was time barred and the Appellate Division dismissed the count) the failure of counsel to raise a dispositive statute of limitations defense did not deny the defendant his right to effective assistance of counsel.

Defendant further contends that defense counsel should have sought dismissal of the count charging him with endangering the welfare of a child because that count was time-barred, and that as a result he was denied his right to effective assistance of counsel. As the People correctly concede, that count is governed by the two-year statute of limitations (see CPL 30.10 [2] [c]), and it should have been dismissed as time-barred (see People v Rogner, 265 AD2d 688). We therefore modify the judgment accordingly.

We further conclude under the circumstances of this case, however, that defendant was not thereby denied his right to effective assistance of counsel. "[T]he failure to raise a defense as clear-cut and completely dispositive as a statute of limitations . . ., in the absence of a reasonable explanation for it, is hard to reconcile with a defendant's constitutional right to the effective assistance of counsel" (People v Turner, 5 NY3d 476, 481). Nevertheless, we conclude that defense counsel's single omission did not "so seriously compromise[] [the] defendant's right to a fair trial [as to] qualify as ineffective representation" (see People v Hobot, 84 NY2d 1021, 1022; see generally People v Flores, 84 NY2d 184, 187-189). Contrary to defendant's contention, the incidents underlying the count of endangering the welfare of a child, although subject to a Ventimiglia hearing, would nevertheless have been admissible as probative of the sexual gratification element of the sexual abuse charges (see generally People v Ortiz, 16 AD3d 831, 833, lv denied 4 NY3d 889; People v Graves, 8 AD3d 1045, lv denied 3 NY3d 674; People v Evans, 259 AD2d 629, lv denied 93 NY2d 924), and we note that the count at issue is now being dismissed as time-barred.