Friday, February 27, 2009

Weight of the Evidence Win... Almost.

In People v. Jones, the Third Department took the rare action of reversing a conviction on the grounds that the jury's verdict was against the weight of the evidence. The appellate court determined that the government failed to disprove the defendant's claim of justification. The court said:
"no evidence was presented to counter defendant's and Walker's testimony that Lamphear was the initial aggressor in this attack. In addition, it is uncontroverted that before defendant ever took out the knife, Lamphear had not only repeatedly threatened him, but physically assaulted him and Walker with his fist, and then attacked defendant with a wooden board striking him so hard that he fractured defendant's arm. Moreover, there is no evidence to support the conclusion that defendant had it in his power to retreat before being attacked by Lamphear and prior to his being struck repeatedly with the board. There is also no question that defendant struck Lamphear only once with the knife and that this occurred as defendant was fending off Lamphear's attack and attempting to safely leave the scene (see People v Richardson, 55 AD3d at 935; Matter of Ismael S., 213 AD2d at 169)."
Note the discussion of the defendant's lawful use of the knife. Be sure to read the very last paragraph where it is revealed that the appellate attorney failed to raise any issue arguing that the defendant's use of the knife was not unlawful. The appellate division did not reverse the weapons possession charge because:
"while the mere possession of a pocket knife is not a crime and is only transformed into criminal conduct upon a showing that the weapon was possessed "with intent to use the same unlawfully against another" (Penal Law § 265.01 [2]), we note that defendant has failed to present any specific arguments on this appeal challenging his conviction for criminal possession of a weapon in the fourth degree."

Thursday, February 26, 2009

Third Department: Insufficient Evidence of Intent to Sell Heroin

In People v. McCoy, decided February 26th, the Third Department determined that there was insufficient evidence that the defendant possessed heroin with the intent to sell it. The court said:
"the People presented no direct proof that defendant sold or attempted to sell heroin to any individual. [Officer] Gaulin did not testify to observing such a transaction, nor did [Eyewitness] David. And, notably, although David testified that she had observed a male standing outside the door for about half an hour and that she saw him speak to several people whom she described as behaving nervously, she was not able to describe the man at trial not even his race and she was unable to identify defendant as the man in question."
The court went on to say that intent to sell could not even be inferred from the circumstances presented at trial:
"Nor is there legally sufficient evidence from which to infer defendant's intent to sell heroin. At the time of his arrest, defendant was carrying no cash beyond a few coins (see People v Jones, 47 AD3d 961, 964 [2008], lvs denied 10 NY3d 808, 812 [2008]; People v Mendoza, 5 AD3d 810, 813-814 [2004], lv denied 3 NY3d 644 [2004]). No evidence was presented that he possessed a weapon or any paraphernalia commonly associated with the sale of drugs (see People v Jones, 47 AD3d at 964; People v Hawkins, 45 AD3d 989, 991 [2007], lv denied 9 NY3d 1034 [2008]; People v Barton, 13 AD3d 721, 723 [2004], lv denied 5 NY3d 785 [2005]; People v Tarver, 292 AD2d 110, 114 [2002], lv denied 98 NY2d 702 [2002]). And, significantly, no testimony established that the small quantity of heroin found in his possession was inconsistent with personal use (see People v Patchen, 46 AD3d 1112, 1113 [2007], lv denied 10 NY3d 814 [2008]; People v Barton, 13 AD3d at 723; People v Tarver, 292 AD2d at 114)."

Wednesday, February 25, 2009

Court of Appeals Upholds Persistent Felony Offender Statute... Again

On February 24, in People v. Quinones, the Court of Appeals reaffirmed its previous holdings that the state's discretionary persistent felony offender [PFO] statute does not violate Apprendi v. New Jersey (530 US 466 [2000]). In Apprendi, the court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt" (Apprendi, 530 US at 490). New York has a two-step PFO statute, Penal Law 70.10, wherein the court must first determine whether the defendant had been previously convicted of two or more felonies. Then, the court must determine whether "the history and character of the defendant and the nature of the circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public" (70.10[2]). Although it would appear that the second prong authorizes a sentence enhancement made by a judge regarding facts other than those found by the trial jury, the Court of Appeals disagreed and held:
"Taking the foregoing into account, defendant's argument that the higher persistent felony offender range cannot be imposed without judicially-found facts regarding the "nature and circumstances" of defendant's criminal conduct and defendant's "history and character" misses the point. Unlike the sentencing schemes in Apprendi, Ring, Blakely, Booker and Cunningham, all of which effectively provided for judicial factfinding of an element(s) of an offense as a prerequisite to enhancing a sentence beyond the relevant sentencing range, the New York sentencing scheme, after a defendant is deemed eligible to be sentenced as a persistent felony offender, requires that the sentencing court make a qualitative judgment about, among other things, the defendant's criminal history and the circumstances surrounding a particular offense in order to determine whether an enhanced sentence, under the statutorily prescribed sentencing range, is warranted. Stated differently, New York's sentencing scheme, by requiring that sentencing courts consider defendant's "history and character" and the "nature and circumstances" of defendant's conduct in deciding where, within a range, to impose an enhanced sentence, sets the parameters for the performance of one of the sentencing court's most traditional and basic functions, i.e., the exercise of sentencing discretion."
The Supreme Court of the United States has denied cert following the two previous times the Court of Appeals upheld the statute (see People v. Rosen, 96 NY 2d 329 [2001], cert denied, 534 US 899 [2001]; People v. Rivera, 5 NY 3d 61 [2005], cert denied, 546 US 984 [2005]).

Mandatory Surcharge Not Part of a Defendant's "Sentence"

In People v. Guerrero, the defendant was sentenced without the judge ever having mentioned that he was required to pay the mandatory surcharges and fees that typically accompany a criminal conviction in New York State. At the Court of Appeals, he challenged whether the Court of Appeals' prior decision in People v. Sparber would permit collection of those fees when the judge's sentence did not include any mention of the surcharge and fee. In Sparber, the court ruled that the trial court must pronounce a sentence of post-release supervision in order for it to become part of a defendant's legal sentence (even if the term of PRS was otherwise required by statute).

The rule in Sparber does not apply in Guerrero, however, because:
"We now hold that the mandatory surcharge and crime victim assistance fee mandated by Penal Law § 60.35 (1) are not a part of a sentence within the meaning of sections 380.20 and 380.40 of the CPL; therefore, a judge need not pronounce them in a defendant's presence during sentencing".
The Court further explained:
"the statute's nomenclature reinforces its non-punitive nature: the assessments imposed by section 60.35 (1) are called a "surcharge" or a "fee," not a "penalty." Indeed, when first enacted in 1982, Penal Law § 60.35 was entitled "Mandatory penalty assessment required in certain cases" (emphasis added). The very next year, the Legislature changed every statutory reference to "penalty assessment" in Penal Law § 60.35 and CPL 420.35 to "mandatory surcharge" (see L 1983, ch 15, §§ 2 and 3 [emphasis added]). A "surcharge" is generally defined as "an additional tax, cost, or impost" (see Merriam-Webster's Collegiate Dictionary 1185 [10th ed 1996])."
This raises the question of whether a defendant can have his probation or parole revoked for failing to pay these fees since, as Guerrero explains, they are not penal in nature and are not intended to be punitive. (Special thanks to Second Assistant Public Defender Jill Paperno for bringing this case and its applicability in post-conviction proceedings to the Indignant Indigent's attention).

Monday, February 23, 2009

New Link Regarding Police Interrogation Practices

Please note that the Indignant Indigent has posted a new link in the "Resources" tool bar to the right. The new link is to the homepage of John E. Reid & Associates. John Reid is perhaps better known as the author of Criminal Interrogations and Confessions, the publication that serves as The Bible for police interrogations. The book is discussed at length in the landmark case of Miranda v. Arizona (384 US 436 [1966]), especially in footnote #9.

Professor Reid periodically updates his webpage with new tips for investigators. You can find the tips by looking under the "Educational Information" tab and selecting "Investigator Tip". Professor Reid explores such topics as "
Are you a good listener?", "Electronically Recorded Confessions", and "Do you invite people to lie to you?". There are literally dozens of tips for interrogators on the webpage, all in searchable format. The Indignant Indigent believes Professor Reid's book and these tips should be required reading for any criminal practitioner litigating a confession case.

State Supreme Court Justice Resigns

A Supreme Court Justice in Buffalo resigned this past weekend for his involvement in a scheme to cover up a local attorney's DWI. The Buffalo News reported the judge's resignation together with the details of the attorney's and her doctor's attempts to cover up the DWI.

Tuesday, February 17, 2009

COA: Evidence Suppressed After Police Exceed Scope of Investigatory Detention

In People v. Ricky Ryan, the police learned that there had been an early-morning carjacking, and based upon the descriptions and circumstances, suspected Mr. Ryan. Five hours after the carjacking, the police approached Mr. Ryan, asked him to be seated in the backseat of a police car, photographed him, and held him while the victim of the car-jacking viewed the photo. The entire process took 13 minutes, and Mr. Ryan was never informed that he was free to leave or that he would be free to leave in the immediate future. The police further told Mr. Ryan that he was being held while the police were speaking to another potential witness. Mr. Ryan later confessed to the carjacking.

Judge Ciparick, writing for a unanimous court, reversed the conviction and stated in relevant part:
"Proper administration of the photo array did not require defendant's presence and, in fact, the police officer did not even know that the non-victim witness had become available to view the photo array when defendant's detention began. Nor were there any other exigencies that might have permitted holding defendant while the photo array was conducted (cf. People v Allen, 73 NY2d 378, 379-380 [1989]; People v Behrmann, 264 AD2d 682, 682 [1st Dept 1999]). Thus, the only permissible inference that can be drawn is that this detention was undertaken simply to make it convenient for the police to arrest defendant if a positive identification subsequently occurred (see People v Robinson, 282 AD2d 75, 81 [1st Dept 2001] ["What the police did here, as a practical matter, was to place defendant under arrest in order to obtain sufficient evidence to arrest him"]). Accordingly, we conclude that, on the facts present here, defendant's detention exceeded the scope permitted under Hicks and that the photographs obtained during that detention must be suppressed."
The court suppressed the photographs, but remanded the case for an attentuation hearing regarding Mr. Ryan's statements.

Fourth Deparment Splits on Whether Child-Victim's Testimony Was Corroborated

The defendant in People v. Shannon Kolupa appealed from his conviction for criminal sexual act in the first degree (Penal Law § 130.50 [3]) and attempted rape in the first degree(Penal Law 10.00, 130.35 [3]) on the grounds that the seven-year-old victim's testimony was not sufficiently corroborated. The Fourth Department disagreed and said:
"Contrary to defendant's contention, the unsworn testimony of the seven-year-old victim was sufficiently corroborated by evidence of defendant's opportunity, the testimony concerning defendant's statements to the police and the testimony of other witnesses (see generally People v Groff, 71 NY2d 101, 109-110). "Strict corroboration of every material element of the charged crime is not required, as the purpose of corroboration is to ensure the trustworthiness of the unsworn testimony rather than [to] prove the charge itself" (People v Petrie, 3 AD3d 665, 667; see Groff, 71 NY2d at 108-110)."
Two dissenters would have reversed for lack of corroboration and noted that:
"the two physicians who examined the victim testified that they found nothing of significance in their examination of the victim's genitals. Although the testimony concerning defendant's statements to the police established that defendant admitted that he exposed himself to the victim, there was no evidence that defendant admitted that he committed any other physical acts with respect to the victim. We thus conclude that defendant's testimony tended to prove only the material facts of the lesser crimes of which defendant was convicted, attempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65 [3]) and endangering the welfare of a child (§ 260.10 [1]), but failed to prove the material facts of the remaining crimes".

Reasonable View of Evidence That Defendant Took Title Under Claim of Right

In People v. Michael Baroody, the Fourth Department ruled that there was a reasonable view of the evidence that the defendant in this petit larceny prosecution took possession of the allegedly stolen items under a "claim of right". The facts supporting the charge were as follows:
"Defendant testified at trial that the owner of the auto shop had informed defendant that those tires had been "laying around [and] were not wanted."Defendant's testimony was supported by the testimony of a customer of the auto shop, who heard the owner tell defendant that items left at the shop for a period exceeding 30 days became the property of the auto shop, as well as by the testimony of State Police investigators to whom defendant related that he had been told by the owner of the auto shop that the tires were not wanted."

Second Department Dismisses Charges on 30.30 Grounds

In People v. Stephen Price, the Second Department dismissed an indictment for the class E felony of attempted disseminating indecent material to a minor in the first degree (see Penal Law §§ 235.22, 110.05[6]). The government commenced prosecution in February of 2006. While the case was pending, the Second Department decided People v Kozlow (31 AD3d 788, revd 8 NY3d 554), wherein the court determined under circumstances similar to Mr. Price's case that evidence of disseminating indecent material to a minor in the first degree was legally insufficient where the defendant's internet communications with an undercover police officer whom he believed to be a minor did not contain any visual sexual images. After Kozlow, the district attorney viewed Kozlow as an impediment to further prosecution and took no further action on Mr. Price's case, but never moved to dismiss the charges. In April of 2007, the Court of Appeals reversed the Kozlow decision, and the government finally arraigned Mr. Price in June of 2007, 16 months after it had filed the felony complaint. Supreme Court granted Mr. Price's 30.30 motion, and the appellate division affirmed by stating:
"we note that the prosecution never sought any continuance as referenced in CPL 30.30(4)(g). Moreover, while the examples of exceptional circumstances set forth in that section are not exclusive, the statute clearly contemplates situations in which a district attorney encounters difficulty in obtaining evidence or in otherwise preparing for trial in the particular case before the court (see generally People v Washington, 43 NY2d 772; People v Robinson, 47 AD3d 847; People v Williams, 244 AD2d 587). Furthermore, although the Penal Law excludes reasonable periods of delay caused by appeals which involve the particular defendant who is being prosecuted (see CPL 30.30[4][a]), it does not similarly provide for an exclusion of time during the pendency of an appeal in an unrelated matter which merely involves similar legal issues (see People v Cortes, 80 NY2d 201, 211-212). To find otherwise would be to permit the People to charge a defendant with a crime and then hold the matter open indefinitely on the ground that a potentially relevant issue in another case before a different court might influence the open matter. Such an approach finds no support either in the language of the statute or in the cases interpreting it, and is antithetical to the very purpose of the speedy trial rule itself. "
As an aside, Note that Mr. Kozlow was disbarred from practice as an attorney before his case even made it to the Appellate Division.

Thursday, February 12, 2009

Be Careful What You Ask For...

United States v. Beltran, out of the Ninth Circuit, serves as an important cautionary tale for appellate practitioners. The defendant(s) were lucky enough to have received sentences five years less than the statutory minimum, only to have their appellate attorneys argue that the sentences were excessive. Its worth a read to see how, or if, the Ninth Circuit rescued the defendants from their attorneys' request.

Here's the best quote from the decision:
"[t]he odd posture of Jose's appeal brings to mind Oscar Wilde's oft-noted adage: 'When the gods wish to punish us, they answer our prayers'".

Reversal for Un-Mirandized Questioning

In People v. Phillip Flowers, the defendant was arrested for Criminal Possession of a Controlled Substance in the Third Degree (subdivision 12) while the police were executing a search warrant upon his home. Without any Miranda warnings, the arresting officer asked the defendant how much money cash he had in his pockets. The defendant replied that he had $600. The Fourth Department rejected the government's argument that the officer made the inquiry for "routine processing purposes". The court held that the question was designed to elicit incriminating information. It held in relevant part:
"we note that "the People may not rely on the pedigree exception if the question[], though facially appropriate, [is] likely to elicit incriminating admissions because of the circumstances of the particular case" (Rodney, 85 NY2d at 293; see Pennsylvania v Muniz, 496 US 582, 602 n 14). Here, the narcotics officer testified at the suppression hearing that he questioned defendant for the purpose of completing a form that was required in the event of "an arrest for narcotics" (emphasis added). Cash indisputably plays a significant role as circumstantial evidence in narcotics cases (see e.g. People v Sykes, 47 AD3d 501, lv denied 10 NY3d 817; People v Gadsden, 192 AD2d 1103, lv denied 82 NY2d 718; People v Orta, 184 AD2d 1052, 1054-1055), however, and we conclude that "an objective observer with the same knowledge concerning the suspect as the police had would conclude that the [question of the narcotics officer concerning the ownership of cash found in the kitchen during the execution of the search warrant] was reasonably likely to elicit [an incriminating] response" (People v Ferro, 63 NY2d 316, 319, cert denied 472 US 1007; see People v Marrow, 301 AD2d 673, 675-676)."

Defendant Failed to Demonstrate He Was Prejudiced by Poor Translation at Trial

In People v. Singleton, the defendant was charged with robbery and burglary in the first degree. The victim only spoke an East Indian dialect called Gujarati. The interpreters used for Mr. Singleton's trial were not able to properly translate the testimony into English. Although the appellate division did not recount the first two interpreters' errors in its decision, the facts are available in the appellant's brief (all briefs are on file at the appellate division library). For example, the interpreters made the following errors:
  • speaking when the witness had said nothing;
  • listening while the attorneys spoke but not interpreting for the witness;
  • engaged in un-translated discussions with the witnesses;
  • summarizing testimony rather than precisely translating.
Moreover, the each interpreter had only a crude grasp of English. For example, when explaining his abilities, the first interpreter said "It’s not to have to wait a long time so, you know, I can translate... Few words and then I will be able to start, continue to doing that." When the court asked the interpreter what language he was interpreting, the interpreter gave his name. The interpreter admitted that he may have made errors in translation during testimony, including some that were apparent from the record. The interpreters' performance seem to violate most established standards of ethics for interpreters. On this record, the appellate division held that:
"We conclude that the court did not err in refusing to strike the testimony of the victim in question based upon the alleged inaccuracies in the second interpreter's translation. Although defendant established that there were some errors in that translation, he failed to establish that he "was prejudiced by those errors" (People v Dat Pham, 283 AD2d 952, lv denied 96 NY2d 900; see People v Restivo, 226 AD2d 1106, 1107, lv denied 88 NY2d 883). In any event, the record establishes that any errors were corrected either through objections made by defense counsel that were sustained by the court, or through defense counsel's cross-examination of the victim using the third and fourth interpreters (see Restivo, 226 AD2d at 1107)."
This case presents an interesting contrast to People v. Romeo, discussed below, wherein the court concluded that it was "highly likely" that the defendant was prejudiced by an extraordinary delay in proceeding to trial. It would seem to be exceedingly difficult for any attorney not fluent in Gujarati to explain exactly how a client was prejudiced by a poor interpretation. The Indignant Indigent believes that it is good practice for defense attorneys who find themselves in such a situation to insist on the record that it is impossible to know what sorts of prejudice have accrued to the defendant (in addition to arguing whatever prejudice can be gleaned from the poor interpretation).

Copy and paste this post here to have it translated into Gujarati.

Murder Charge Dismissed on Speedy Trial Grounds

On February 11, 2009, the Court of Appeals decided People v. Anthony Romeo. In 1985, Mr. Romeo was linked via DNA evidence to a murder in Suffolk County. He was scheduled to turn himself in to police, but instead fled to Canada where he killed a Canadian constable. Mr. Romeo then returned to the United States where he was finally apprehended. Suffolk County officials took custody and indicted Mr. Romeo for the murder. In the meantime, Canadian officials also initiated proceedings and asked for extradition. The Suffolk County DA chose to defer prosecution. Mr. Romeo was returned to Canada over his many requests for arraignment on the Suffolk County charges. He was convicted in Canada, but Suffolk County never pursued its charges. Twelve years later, Mr. Romeo asked for the charges to be dismissed on speedy trial grounds.

The Court of Appeals analyzed the five Taranovich factors and agreed with the appellate division that Mr. Romeo's right to a speedy trial was violated (People v. Taranovich, 37 NY 2d 442). The five factors are:
"(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charges; (4) any extended period of pretrial incarceration; and (5) any impairment of defendant's defense (see Taranovich, 37 NY2d at 445)".
Naturally, the application of the factors is highly case-specific, and it is worth reading the court's analysis on this issue, especially some helpful citations regarding whether the delay was "extraordinary" as a matter of law. Most noteworthy, however, was its discussion of the fifth factor which generally asks whether the defendant was prejudiced by the delay. On this subject, the court held:
"Here, it is highly likely that the defense was "impaired" (see Hooey, 393 US at 374) by defendant's incarceration for many years in a foreign prison where it would have been difficult for him to participate in his own defense, confer with counsel and contact witnesses. Defendant claims that he had psychiatric problems and might have presented a defense based on a lack of criminal responsibility by reason of mental disease or defect. This type of defense would have required defendant to establish his mental incapacity at the time of the offense. The ability to do this was clearly hampered by his incarceration abroad. "

Monday, February 09, 2009

Court Must Explain Waiver of Right to Appeal

In People v. Farrow, the Fourth Department reaffirmed that a defendant cannot waive his right to have a waiver of the right to appeal explained on the record. Moreover, the court re-stated its position that the judge accepting the plea and waiver has an independent duty to ensure that the defendant understands the waiver. The court said:
"It cannot be gainsaid that it is the responsibility of the court to ensure that "a defendant's understanding of the terms and conditions of a plea agreement is evident on the face of the record" (Lopez, 6 NY3d at 256; see Callahan, 80 NY2d at 283). Defendant's purported waiver cannot relieve the court of its responsibility."

Rap Music and Consciousness of Guilt

In People v. Wallace, the defendant was convicted of murder in the second degree. At issue was whether the government could appropriately enter into evidence testimony that the defendant listened to the rap song "How I Could Just Kill a Man" (by Rage Against the Machine or Cypress Hill -- his favorite song) two or three times shortly after the murder occurred. The Fourth Department held that the evidence was permissible and, while noting the traditionally low value of consciousness of guilt evidence, held that:
"Here, the evidence presented at trial established that defendant played a cassette tape of his favorite rap song, entitled "How I Could Just Kill a Man," two or three times over the course of two five-minute car rides shortly after the homicide. The lyrics of the song describe a murder occurring under similar circumstances as those present in the instant case... The rap song here, however, was not admitted in evidence merely for the purpose of establishing that defendant generally enjoyed rap music. Instead, the People sought to shed light on the circumstances under which defendant listened to the song, and thus the rap song was properly admitted as evidence of defendant's consciousness of guilt".
You can find the lyrics of the song here. The Fourth Department did not describe what sets this particular rap song apart from any other rap song which generally glorifies violence. The song does not seem to describe a particularly unique MO.

As an aside, one must wonder whether we would have the same result if the defendant had listened to "How I Could Just Kill a Man" by Charlotte Sometimes.

Further Definition of Appropriate Notice Pursuant to People v. Sedlock

In an on-going effort to further define what constitutes a sufficiently narrow time-frame in an indictment for sex offenses (or other course-of-conduct crimes), the Fourth Department decided People v. Rodney Adams. In Adams, the court held that a two or three month time-frame was permissible by stating:
"the time frames set forth in the indictment, i.e., June 1, 2003 through September 30, 2003 and September 1, 2003 through November 25, 2003, were " sufficiently specific' in view of the nature of the offense and the age of the victim" (People v Dickens, 48 AD3d 1034, 1035, lv denied 10 NY3d 958)."
This hearkens back to to the language of People v. Sedlock which dismissed an indictment for failure to narrow an allegation that sexual misconduct took place over the course of seven months. Given the age (17) and normal intelligence of the victim, the allegations should have been more specific. In so holding, the Court of Appeals said:
"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."
Note the language stating that the government failed to demonstrate it was unable to delineate a more narrow time frame. The Indignant Indigent believes that this is in invitation for defense practitioners to ask for a hearing anytime the government claims that it cannot more narrowly state the time frame of a given offense. This hearing would test the victim's capacity to remember dates and events surrounding the allegations and would give the court the opportunity to evaluate whether the victim has the capacity to more specifically delineate the allegations.