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In People v. Patrick Bungo, the defendant was arrested by his parole officer for having violated the terms of an order of protection issued in favor of his ex-wife. The police locked Mr. Bungo in the backseat of a police car with two other officers and inquired regarding his alleged contact with the ex-wife. The next day, the same parole officer confronted Mr. Bungo in the local jail regarding the incident. On both occassions, the defendant made incriminating statements without having been given Miranda warnings. In reversing Mr. Bungo's conviction on Miranda grounds, the Fourth Department ruled: " The first statement was made by defendant after he had been arrested and was in custody but before he had received his Miranda warnings, and the statement was made in response to questions that were " likely to elicit an incriminating response' " (People v Wearen, 19 AD3d 1133, 1134, lv denied 5 NY3d 834; see People v Evans, 294 AD2d 918, 919, lv dismissed 98 NY2d 768; People v Rifkin, 289 AD2d 262, lv denied 97 NY2d 759). The second statement was made at the Monroe County jail, before any Miranda warnings had been administered. The record establishes that it also was the result of custodial interrogation inasmuch as it "involve[d] the kind of inherently coercive atmosphere with which Miranda was most concerned" (People v Alls, 83 NY2d 94, 99, cert denied 511 US 1090; see People v Vila, 208 AD2d 781, lv denied 85 NY2d 867; People v Connor, 157 AD2d 739, lv denied 76 NY2d 732)."
In People v. James Comfort, the Fourth Department affirmed the defendant's conviction and rejected his claim that he was denied due process and his right to a fair trial following the trial court's repeated denial of requests for adjournments. The Fourth Department noted that: "The court granted defendant's "demand[]" for a new attorney approximately two weeks before trial was scheduled to commence, and defense counsel accepted the assignment with knowledge of the time constraints. We thus conclude that the court did not abuse its discretion in refusing to grant the requested adjournments (see People v Arroyave, 49 NY2d 264, 272; People v Povio, 284 AD2d 1011, lv denied 96 NY2d 923)."
The court's decision raises an interesting (and possibly leave-worthy) issue of whether the Fourth Department can properly analyze such a request, couched in due process terms, under the "abuse of discretion" standard. In People v. Foy (32 NY 2d 473 [1973]), the Court of Appeals stated that “recent decisions of this Court reflect a more liberal policy in favor of granting a short adjournment... when the delay is requested in order to insure [sic] a fundamental right”.
There appears to be some dispute, even in other departments, over how or when this limitation on typically broad judicial discretion should apply.
In People v. Alexis Oberlander, the Fourth Department determined that there was legally insufficient evidence of filing a false instrument in the first degree. The government's allegation was that Ms. Oberlander defrauded county welfare services by failing to note on her application for DSS that she shared her home with another adult. The court noted that: "Two prosecution witnesses who were frequent visitors at defendant's residence, including one who stayed at defendant's residence for a few months, testified that Banks lived at defendant's residence, and defendant's landlord testified that he believed that Banks lived at the residence. The basis for the testimony of those prosecution witnesses, however, was only that they often observed Banks at defendant's residence. The People failed to present other evidence to support the conclusion of those witnesses that Banks lived at defendant's residence, e.g., evidence that Banks received his mail at the residence, performed household chores, or paid household bills (cf. People v Hure, 16 AD3d 774, 775, lv denied 4 NY3d 854; Stumbrice, 194 AD2d at 933). "
The court further noted that the defendant's evidence contradicted the government's position: "although Banks was often at her residence and slept there 2 to 3 nights per week, he did not live there and spent the remainder of the time at another woman's home or at the homes of his family members. Three other defense witnesses who were often at defendant's residence testified that Banks was frequently at the residence but that they did not observe any of his personal effects there, nor did they have any knowledge that he lived there. A fourth defense witness testified that she rarely saw Banks at defendant's residence and had no knowledge that he lived with defendant."
The court also reversed and granted a new trial on the one remaining count on the grounds that the trial court refused to grant a short adjournment to accommodate a defense witness.
In People v. Gunther Flinn, the defendant pleaded guilty to attempted murder in the second degree. During his plea, the judge said that if Mr. Flinn was convicted after trial, he would a be treated "very differently as far as the sentence is concerned" if he exercised his right to a trial and that his sentence after trial would be "nothing like the sentence that [he] would get if [he] stood up and accepted [his] responsibility." The judge further said that after trial Mr. Flinn would be sentenced to "substantially longer than" the sentence he would receive after a plea. Although Mr. Flinn did not seek to withdraw his plea before the lower court, the Fourth Department addressed the issue of his entitlement to withdrawal in the interests of justice and vacated the plea by stating: "the court's statements do not amount to a description of the range of the potential sentences but, rather, they constitute impermissible coercion, "rendering the plea involuntary and requiring its vacatur" (People v Fanini, 222 AD2d 1111; see People v Stevens, 298 AD2d 267, 268, lv dismissed 99 NY2d 585; People v Wilson, 245 AD2d 161, 163, lv denied 91 NY2d 946)."
The Indignant Indigent has added a new link in the "Resources" tool bar to the right. The link is to the Department of Justice's 1999 guidebook for law enforcement on the use of pre-trial identification procedures. The 55 page publication proposes protocols for law enforcement when speaking to eyewitnesses. The publication implicitly and explicitly acknowledges that even subtly improper identification procedures can result in skewed eyewitness memory.
It is worth reading yesterday's oral argument at the Supreme Court in the case of Caperton v. AT Massey Coal Company. At issue is whether a West Virginia appellate court judge should have recused himself after having received $3 million in campaign contributions from one of the parties. The case involves an intricate discussion of basic concepts of fundamental fairness and the impact of the election process on outcomes in litigation. Moreover, the case was expertly argued by two exceptional attorneys, Theodore B. Olson and Andrew L. Frey.
