AD4: trial court's failure to read jury's note into record reversible error

People v Martin, __ AD3d __ [available here]

A jury in a murder trial sent out three notes to the judge during deliberations. The first note--asking the trial judge to repeat the jury charge for all three counts of the indictment--was ignored by the trial judge, who did not read the contents of the note into the record and did not respond to the note. (People v Martin, __ AD3d at __.) The jury sent out another note later, seemingly requesting a readback of the jury charge for count one of the indictment; the trial court did not read the note verbatim into the record, but did try to respond to the note by rereading the charge for count one. (Id. at __.) While the jurors were in the courtroom for the readback, a juror requested a readback of the jury charge for count two of the indictment. (Id. at __.) The trial judge complied with the request and gave the readback. (Id. at __.) About 30 minutes later, the jury sent out another note seemingly asking the court to repeat the jury charge for count three of the indictment; the trial judge did not read the note into the record, but did give the charge for count three again.

A majority of the Fourth Department found the trial judge's failure to read any of the jury notes into the record and the failure to respond at all to the first note was a "mode of proceeding" error that required reversal without regard to preservation or harmless error. From the decision:

We agree with defendant that reversal is required based on Supreme Court's failure to read into the record the jury's first note requesting, inter alia, 'definitions of 3 counts' and the court's failure to respond to that request. We further agree with defendant that reversal is also required based on the court's failure to read into the record the jury's second note requesting, inter alia, 'First Count 3 points'. The court's attempt to interpret and paraphrase that note does not serve as a substitution for the requisite notice to defense counsel 'of the actual specific content of the jurors' request'. with respect to both notes, 'the court's error[s] in failing to disclose the contents of the note[s] had the effect of entirely preventing defense counsel from participating meaningfully in this critical stage of the trial and thus represented a significant departure from the organization of the court or the mode of proceedings prescribed by law'. Thus, those errors are 'not subject to the usual rules of preservation'. Nor are the errors here subject to harmless error analysis. The failure to disclose the exact content of the jury's substantive inquires was 'inherently prejudicial,' effectively depriving defendant of an opportunity to evaluate those inquiries and to propose responses.

(Id. at __.)

Justices Scudder and Kehoe dissented. Although the dissenters agreed that the trial court erred by not responding to the first note, they did not approach the issue as a "mode of proceeding" error and would have required a showing of prejudice. Since the court covered all of the information requested in the first note in response to later jury notes, "the court's errors were cured by the jury's two subsequent notes and on-the-record request for that same information, and by the court's prompt and 'meaningful' responses to those subsequent requests." (Id. at __.) As to the failure to read the jury notes into the record, the dissenters would have required preservation:

Although . . . apprised of the existence and substance of the notes, defense counsel never made a request on the record to view the notes, never complained on the record about the court's failure to read the notes into the record verbatim, never suggested responses to the notes on the record, and never complained on the record about the adequacy of the court's responses to the notes. "[D]efense counsel's failure to object at a time when the court could have corrected the alleged errors renders defendant's contention[s] unpreserved for our review."

(Id. at __ [citations omitted].)

Hard to fault the reasoning of either the majority or dissenters here--as is so often the case, the framing of the issue (i.e. whether the mistake is characterized as a "mode of proceeding" error or not) dictates the outcome.

AD4: Bruton and Crawford violations require reversal

People v Kyser, __ AD3d __ [available here]

The Fourth Department handed down an interesting decision this past Friday that highlights the interplay (overlap?) of two landmark United States Supreme Court decisions--People v Bruton (391 US 123) and People v Crawford (541 US 36). The facts are typical of a Bruton situation--the defendant was a passenger in a vehicle where drugs were found, and both defendant and the codefendant driver were charged with possessing the drugs and each gave a written statement claiming the other man possessed the drugs. The defendant passenger "moved to sever his trial from that of his codefendant based, inter alia, on the ground that an out-of-court statement made by his codefendant would implicate him and he would be unable to confront and cross-examine the codefendant." (People v Kyser, __ AD3d at __.) The trial court denied the motion, "and the statement of the codefendant that he possessed the cocaine was admitted in evidence at the joint trial." (Id. at __.) This was clear reversible error under Bruton, and the Fourth Department so held and reversed accordingly.

But the Fourth Department also went a step further and reached defendant's unpreserved argument based on Crawford v Washington. From the decision:

Defendant further contends that reversal is required based on a Crawford violation. Although defendant failed to preserve his contention for our review, we exercise our power to reach defendant's contention as a matter of discretion in the interest of justice, and we conclude that reversal is required on that ground as well. The out-of-court statement of a witness that is testimonial in nature is barred under the Confrontation Clause unless the witness is unavailable and defendant had a prior opportunity to cross-examine the witness. Here, the out-of-court statement of the codefendant that implicated defendant in the possession of the cocaine was testimonial in nature and was offered for the truth of the facts asserted therein, and thus the admission of that statement in evidence was in violation of the Confrontation Clause.

(Id. at __.)

The practical result of the reversal on the Crawford ground is that not only will the defendant's retrial be severed from that of his codefendant (the remedy under Bruton, but the codefendant's statement will not be admissible under any of the classic hearsay exceptions. This is an interesting decision not only for the unique Bruton--Crawford interplay, but also because it is nice to see the Fourth Department reaching an unpreserved Crawford issue in the interest of justice.

AD4: City Court defendants not entitled to jury panel comprised solely of city residents

In re Oglesby v McKinney, __ AD3d __ [available here]

A criminal defendant standing trial in Syracuse City Court was provided a panel of prospective jurors "comprised of eligible residents of Onondaga County." (In re Oglesby, __ AD3d at __.) The defendant moved to strike the panel, "contending that he was entitled to a panel drawn solely from available jurors residing in the City of Syracuse." (Id. at __.) Defendant relied on section 500 of the Judiciary Law, which provides a criminal defendant in New York with the "right to grand and petit juries selected at random from a fair cross-section of the community in the county or other governmental subdivision wherein the court convenes [...]." (Judiciary Law 500.) The City Court judge agreed and struck the panel. The Onondaga County District Attorney--apparently uncomfortable with the idea of trying a city court case in front of a jury selected solely from city residents--commenced an Article 78 proceeding in Supreme Court, "seeking to prohibit [the City Court judge] from enforcing his order [...]." (Id. at __.) The Supreme Court granted the writ, and the case came before the Fourth Department on the City Court Judge's appeal.

The Fourth Department (in a decision written by Justice Gorski) converted the Article 78 proceeding to a declaratory judgment action, and came down in favor of the District Attorney, essentially because of the "or" connector in section 500 of the Judiciary Law; from Justice Gorski's decision:

By its express terms, Judiciary Law section 500 permits, in the alternative, the random selection of jurors from "the county or other governmental subdivision wherein the court convenes", but the statute does not mandate the selection of jurors from one jurisdiction to the exclusion of the other. [...] There presently is no mandate in Judiciary Law section 500 that a county commissioner of jurors provide a defendant in a criminal action in city court with a panel of prospective jurors comprised solely of residents of the city. Legislative action would be required for the imposition of such a mandate.

(Id. at __.)

I'm not sure I agree with this decision, only because a fair reading of section 500 of the Judiciary Law seems to contemplate a court's jurisdiction fitting its prospective jury pool--residents of a Town are the proper pool for Town Court cases, city residents are the pool for City Court cases, and County and Supreme Courts draw from a county-wide pool. This would seem to me to be the only real way to make the "fair cross-section" language a reality. Nevertheless, Justice Gorski's decision is based on a tight reading of the statute and not necessarily unreasonable.

What bothers me more is the fact that the Onondaga County District Court felt compelled to file an Article 78 proceeding to prevent the jury from being comprised solely of Syracuse city residents, i.e. more minorities than would be present in jury pool drawn from the county. In other words, the Onondaga County District Attorney does not want minorities sitting as jurors, and was willing to engage in protracted litigation (on the public dime) to make sure there are as few minorities in the city court jury pool as possible. Regardless of the legal merits, why should the District Attorney care if a city court jury is actually made up of city residents?

AD4: felony complaint supported by unidentified "eyewitnesses" is facially insufficient, cannot be supplemented by in camera submissions

Fitzpatrick v Rosenthal, __ AD3d __ [available here]

A Syracuse man was arrested without a warrant and arraigned before the Syracuse City Court on five felony complaints drafted and affirmed by a police detective. The complaints state "that the sources of the affirming detective's information are 'eyewitness accounts'," and "[n]o witness statement or police report was attached to any of the felony complaints." (Fitzpatrick v Rosenthal, __ AD3d at __.) Defense counsel argued that the complaints were facially insufficient; the District Attorney disagreed but argued in the alternative that the City Court was "required by law to consider evidentiary material submitted ex parte by the People for in camera review" to determine sufficiency. (Id at __.) The City Court agreed with defense counsel and tossed the felony complaints as facially insufficient to confer jurisdiction on the court. (Id at __.) The People commenced an article 78 in Onondaga County Supreme Court to challenge the City Court's ruling, and the Supreme Court found the complaints facially sufficient and reinstated the felony complaints.

On appeal, the Fourth Department (in an opinion written by Justice Hurlbutt) agreed with the City Court and reversed. Justice Hurlbutt first recognized that a felony complaint is only sufficient to confer jurisdiction over defendant if "the allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument." (Id. at __ [quoting CPL 100.40[4].) Further, "[w]here a demonstration of probable or reasonable cause is based on hearsay information, New York courts apply the Aguilar-Spinelli test, requiring that the hearsay affiant establish 'that the informant had some basis for the knowledge . . transmitted . . . and that [the informant] was reliable.'" (Id. at __ [brackets in original].) From that starting point, Justice Hurlbutt had little problem finding that the felony complaints--that only set forth the conclusory basis of the detectives information as "eyewitness accounts"--failed to meet the Aguilar-Spinelli test. The detective's conclusory characterization of the informant as an "eyewitness" gave no indication of the basis of the informant's knowledge, and reliability was not shown because "[n]o information was furnished to the court concerning whether the 'eyewitness accounts' came from an anonymous or a paid informant, in which event an independent showing of reliability would have been required, or whether those accounts came from an identified citizen informant, in which event there would be no need to furnish further evidence of reliability." (Id. at __.)

Justice Hurlbutt also rejected the People's argument that the City Court judge was required to go beyond the face of the felony complaint and consider additional information in camera before passing on the sufficiency of the complaints, instead holding as follows:

Both the District Attorney and the courts . . . are bound by the constitutionally-based statutory requirement that reasonable cause must be demonstrated on the face of an accusatory instrument in order to confer jurisdiction of the criminal action and control over the liberty of an accused person. The District Attorney's brief on appeal notes that, on the arraignment of Madison before Judge Rosenthal, "the prosecutor offered to try to orally confirm that the eyewitness identified [Madison] and was in a position to observe Madison." Assuming, arguendo, that the "eyewitness" was an identified citizen who both personally observed the criminal conduct and either knew or had identified Madison, we conclude that reasonable cause would have been established if such information had been included in an amended, supplemental, or replacement felony complaint. That did not occur, however, and thus Judge Rosenthal was not only authorized to dismiss the felony complaints, but indeed properly did so.

(Id. at __.)

To recap: in order to be sufficient, a felony complaint must contain facts setting forth all the elements of the crime charged, and if hearsay is relied on to make out the factual elements, it must be hearsay that passes the Aguilar-Spinelli test; moreover, the information must be in the felony complaint itself or attached to the complaint, and a criminal court judge is not required or allowed to consider any additional in camera information. A nice common-sense decision that clarifies an everyday point of criminal practice.

AD4: "day-reporting work release" = "incarceration"

People v Cagle, __ AD3d __ [available here.]

For purposes of sentencing a defendant as a second felony offender, the sentence on the prior felony conviction must be imposed "not more than ten years before the commission of the [present] felony." (People v Cagle, __ AD3d at __, citing Penal Law 70.06[1][b][iv].) However, any time that a defendant spends "incarcerated" does not count for purposes of computing this 10-year timeframe. (Penal Law 70.06[1][b][v].) In a 3-2 decision, the Fourth Department has held that any time a defendant spends out of physical custody in a day reporting work release program nevertheless counts as "incarceration" for purposes of tolling the 10-year period. From the decision:

We conclude that the tolling provision applies to the period of time in which defendant was in the day-reporting work release program inasmuch as he remained under the control and custody of the Department of Correctional Services. Furthermore, the period of time in which defendant was in that program was credited toward his sentence of imprisonment. We thus conclude that the tolling provision applies thereto.

(Id. at __.)

Justices Martoche and Pine dissented:

We disagree with the majority and instead agree with the Second Department that the statute is unambiguous and applies only to a defendant who is physically incarcerated. [...] While we agree with the majority that defendant remained in the control and custody of the Department of Correctional Services, we conclude that such control and custody is not the equivalent of incarceration for purposes of the statute. A person who is incarcerated necessarily is in the control and custody of law enforcement officials, but a person who is in the control and custody of law enforcement officials is not necessarily incarcerated.

(Id. at __.)

The Cagle decision sets up a split with the Second Department over the correct definition of "incarceration" for recidivist sentencing purposes, making the issue seemingly ripe for the Court of Appeals.

AD4 strikes down "Rochester Initiative" roadblocks

People v Trotter, __ AD3d __ [available here]

The Fourth Department handed down decisions for its January term today. I am out of town and will not be able to post fully until Monday. It seems the most significant criminal decision is People v Trotter, where the Fourth Department affirmed the trial court's suppression of drugs found in a car stopped at a roadblock as part of the so-called "Rochester Initiative". The Initiative targeted the "crescent" section of Rochester. Roadblocks were part of a general crime suppression plan; as the Fourth Department notes in its decision, "During the two-month period of the Rochester Initiative, 46 checkpoints were conducted, all at night, all in the target area, and all by personnel from the three participating law enforcement agencies." (Trotter, __ AD3d at __.) The People argued the roadblocks were constitutional because regardless of the overarching purpose of the Initiative, the police running the checkpoints "were instructed and did engage in checking each vehicle stop for windshield stickers, driver's licenses and registrations." (Id. at __.) The Fourth Department disagreed and held the stops unconstitutional:

Were we to examine the checkpoint procedure independently of the underlying function of the task force, we would conclude that there would be no constitutional infirmity. The officers stopped every vehicle, whereupon they checked the windshield stickers, driver's licenses and registrations. According to the testimony at the suppression hearing, if all was in order, the officers sent the drivers "on their way." Standing alone, such a checkpoint would be a permissible routine highway safety-related stop under Edmond and Prouse. The checkpoint was not, however, conducted in isolation. Rather, the record establishes that the checkpoint was an inseparable part of the Rochester initiative, the purpose of which was to detect and deter violent crime and drug trafficking in the target area by the use of the checkpoint . . . [a]ccordingly, we conclude that the order suppressing the evidence at issue should be affirmed and the indictment dismissed.

The Fourth Department made the right call on this issue. If the People's argument was adopted, then any roadblock could be insulated from constitutional challenge as long as the police check registration stickers as part of the stop. Such an exception would swallow the general rule that a roadblock set up "to uncover evidence of ordinary criminal wrongdoing . . . contravenes the Fourth Amendment." (Id. at __.)

Regular posting to resume next week.

"Tainted Trials, Stolen Justice": a rare look at a flawed appellate court

The San Jose Mercury News has a sobering series of articles up under the title Tainted Trials, Stolen Justice." (Hat tip: Arbitrary and Capricious.) Of particular interest is the attention paid to the criminal appellate courts. From the first article in the series:

The 6th District Court of Appeal, the primary court of review for Santa Clara County cases, upheld verdicts in more than 100 cases even as it acknowledged errors had occurred. The appellate court simply concluded those errors made no difference in the outcome of the case. Sometimes those conclusions were appropriate, but a review of the appellate record and consultations with experts established that in more than 50 cases the court misstated facts, twisted logic and devised questionable rationales to dismiss the error.

In nearly all the cases, the 6th District designates its opinions as ``not to be published'' -- a distinction that means they are not to be cited as legal authority in subsequent cases, and thus have little relevance beyond the parties to a case. The Mercury News found that higher courts are extremely unlikely to review unpublished opinions, making the 6th District the final word on most criminal trials in Santa Clara County.

It is nice to see scrutiny given to every stage of the criminal process, and not just the trial itself. I do not think I have ever read another article even discussing the role of an intermediate criminal appellate court--yet the Mercury News article manages not only to shine a light on a dark area of the process, but it does so in a way that levels serious criticism in a fair manner. Well worth a read.

AD3: County Court's withholding of Sandoval ruling until after People's case reversible error

People v Cross, __ AD3d __ [3d Dept 2006] [available here]

In a decision handed down last Thursday, the Third Department held "that defendant is entitled to a new trial because County Court withheld its Sandoval determination until after the People had rested." (People v Cross, __ AD3d at __.) From the decision:

Here, despite defendant's pretrial motion and counsel's request for a ruling before opening statements, County Court did not address the Sandoval issue until after the People rested. By that time, defendant had presented an opening statement and cross-examined all of the prosecution witnesses, committing himself to a defense strategy that would appear to require defendant's testimony. After the court's Sandoval ruling, defendant declined to testify. Because the defense strategy may well have been different if the court had issued its Sandoval ruling before the trial began, we feel constrained to reverse and grant defendant a new trial.

(Id at __.)

I'm not sure how useful this decision will be--most trial courts rule on any Sandoval application before opening statements. But, not a bad arrow to have in your quiver if the situation calls for it. Also, the "defense strategy may well have been different" language could be useful for appellate defense attorneys who can raise a valid Sandoval issue but are faced with a harmless error problem.

Some other decisions of note from the Third Department's January 26 packet of decisions:

People v Jackson, __ AD3d __ [3d Dept 2006] [available here]

The defendant on direct appeal argued that his sentence was illegal because it was not "capped" pursuant to CPL section 70.30. The Court held that a direct appeal was not the proper vehicle for addressing the "cap" issue: "[t]he calculation of the aggregate sentence for consecutive sentences such as those involved here is generally done by the Department of Correctional Services, and any alleged error may be challenged in a proceeding pursuant to CPLR article 78." (Jackson, __ AD3d at __ [citations omitted].)

People v Blair, __ AD3d __ [3d Dept 2006] [available here]

The Court agreed with defendant that his kidnapping charges should have merged with the other charges: "[h]ere, defendant attempted to push the victim a very short distance and grabbed her legs, restraining her momentarily before she got away. The only evidence is that he assaulted her while he attempted to force her into the wooded area to kill her. Inasmuch as the abduction was both minimal and part of the assault and attempted murder, the merger doctrine applies and necessitates reversal of defendant's conviction of the crime of attempted kidnapping in the second degree." (Blair, __ AD3d at __.)

New Blawgs Added

Welcome to AlaskaBlawg, Blonde Justice, Gideon's Guardians, and Public Defense, all added today to the Blawgs list over to the left.

Local criminal defense attorney honored

Don Thompson, one of the best criminal defense attorneys in Rochester, will receive the Charles F. Crimi Memorial Award from the New York State Bar Association today for his superb work on behalf on indigent defendants. Don is featured prominently in a Democrat and Chronicle article about the NYSBA awards here. Some bits from the article:

Thompson's colleagues say they see similarities between him and Crimi, the late defense lawyer. Thompson, like Crimi, doesn't think the level of defense a person receives should be based on the resources he or she has.

"Don's one of those rare individuals that is committed not only to the practice of criminal law and the vigorous representation of his clients but the pursuit of the fundamental elements of justice, which the system is based on," said defense lawyer Lawrence Kasperek, who shares office space with Thompson in downtown Rochester.

"Those people are not only rare but they're vital to the proper function of the criminal justice system."

Thompson, 46, admits that he is fueled by an insistence that the criminal justice system can operate better.

"I believe that we potentially have the best system of justice that we could hope for, but you can't just sit back and hit the cruise control and expect it to work," he said. "It's my life so I'm kind of committed to being part of a system that I can be proud of."

In recent years, Thompson has worked with the New York City-based Innocence Project to try to secure genetic testing in cases in which he contends the wrong people may have been convicted. Those cases have triggered legal clashes with prosecutors, who often maintain that the evidence against the convicted is overwhelming.

"Probably one of the biggest compliments I've ever received, and it wasn't meant as a compliment, was (when) a district attorney characterized me as a 'true believer,'" Thompson said.

Doing indigent defense work is usually a thankless job, so it is nice to see Don--one of the true good guys of the local criminal bar--get some much deserved recognition. Congratulations!

The Supremes: Greatest Hits (vol. 2)

Crawford v Washington, 541 US 36 [2004] [available here]

An instant classic, Crawford v Washington has managed to flip everyday criminal trial and appellate practice in New York on its ear. I have posted more on Crawford than any other criminal decision in the nine months or so that this blog has been up and running, simply because the fallout from Crawford is so widespread. Previously settled trial practices are being questioned. Can the People in a murder trial simply have a substitute medical examiner opine as to manner and cause of death based on an autopsy report prepared by a non-testifying medical examiner, or is the autopsy report testimonial hearsay? Can the People play a 911 tape for the jury, or is the call testimonial hearsay? Does Crawford apply at recidivist sentencing hearings in New York? Is a simple "affidavit of mailing" testimonial hearsay? The Fourth Department says yes, but it is by no means clear that the U.S. Supreme Court would reach the same conclusion. What about breathalyzer calibration records?

All great questions, and all questions Justice Scalia deliberately left for another day by not setting forth a comprehensive definition of 'testimonial' in Crawford. The Court of Appeals has recently weighed in and defined "testimonial" very broadly--a nice development for New York criminal defendants. But we will just have to wait and see if the Supremes are as generous when they get around to deciding the issue.

The Supremes: Greatest Hits (vol. 1)

Gideon v Wainwright, 372 US 335 [1963] [available here]

To combat the usual lull in posts around here that happens between the Fourth Department's terms, I've decided to post periodically on important or historical criminal decisions (both New York and federal). I thought it appropriate to start with Gideon v Wainwright, the 1963 Supreme Court decision that established the right to counsel for poor people and led to the establishment of public defender offices to provide legal services for indigent defendants. The majority opinion eloquently sets forth the justification for extending the right to counsel to poor people:

[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crimes, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the wide-spread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

(Gideon v Wainwright, 372 US 335, 344 [1963].)

A post over at Arbitrary and Capricious got me thinking of Gideon today; check out Skelly's great post linking to an in-depth article giving a rare glimpse into the life of a newly minted assistant public defender (warts and all).

New decisions February 3

The Fourth Department will hand down decisions for cases argued during its January term on February 3. Until then, I hope to highlight some cases of interest from the other Appellate Divisions.

WDNY: Appellate counsel ineffective for failing to raise strongest issue on appeal

Mullins v Bennett, 00-CV-0136


In a decision filed today by Magistrate Judge Bianchini, the U.S. District Court for the Western District of New York granted petitioner's writ of habeus corpus based on ineffective assistance of appellate counsel, finding that "counsel overlooked the strongest state law argument that his client had in favor of barely colorable claims" and the Fourth Department engaged in an "unreasonable application" of the federal test for ineffective assistance of counsel in resolving "the deficient-performance aspect of Mullins' ineffective assistance of counsel claim against him." (Mullins v. Bennett, 00-CV-0136.)

On direct appeal at the Fourth Department, Mr. Mullin's appellate counsel raised three issues: first, that the trial court should have granted trial counsel's motion for severance; second, that the evidence was legally insufficient; and third, that the prosecutor's misconduct deprived Mr. Mullin of a fair trial. The Fourth Department affirmed Mr. Mullin's conviction, and the Court of Appeals denied leave. Mullins subsequently filed a writ of error corim nobis on the ground that his appellate counsel was ineffective for failing to raise a properly preserved Batson argument (the trial prosecutor struck the only black member of the jury venire and offered a flimsy race-neutral explanation). The Fourth Department denied the writ, and Mullins petitioned the Western District Court for a writ of habeus corpus.

The WDNY noted the standard to be applied when an ineffective assistance of appellate counsel claim is grounded on appellate counsel's failure to raise a specific issue on appeal: "Whether the neglected appellate issue is based on federal or state law, the burden rests on [the defendant] to show 'that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker.'" (Id.) The WDNY had no problem concluding that the issues raised by Mr. Mullin's appellate counsel on direct appeal were weak--the Court held it was "pointless for appellate counsel to have bothered raising the severance argument. The insufficiency-of-evidence and prosecutorial misconduct arguments were somewhat stronger than the severance argument, but that is not saying much." (Id.)

The part of the WDNY's decision that is interesting to me is the next part of the analysis, i.e. the Court's finding that Mr. Mullin's Batson claim would have had a "reasonable probability" of success before the Fourth Department and therefore Mr. Mullin was prejudiced by his appellate attorneys failure to raise the Batson issue on direct appeal. Don't get me wrong--I think Mr. Mullen's Batson argument is a strong one--the trial prosecutor struck the only black member of the jury venire because (and I'm paraphrasing) the prosector did not like social workers (and the venire member worked as a "food service supervisor . . . at a facility that provided mental health services") and the juror seemed "skittish". (Id.) However, the overall success rate for criminal defendants on direct appeal to the Fourth Department is dismal, clocking in at about 5% for substantive reversals (i.e. not technical errors or sentence reductions). So I think it is a touch optimistic to say that a criminal appellant raising a strong Batson argument (or any other argument) before the Fourth Department has a "reasonable probability" of success. Still and all, a good and welcome result for Mr. Mullins.

3rd Dept: photo array that "depicted [the bearded] defendant alongside five males whose facial hair appeared to be drawn in" NOT unduly suggestive

People v Colon, __ AD3d __ [available here]

The defendant in Colon sported "unusual facial hair." (People v Colon, __ AD 3d __, __ [3d Dept 2005].) So when it came time to construct a photographic array, the police put defendant's photo "alongside five males whose facial hair appeared to be drawn in." (Id.) The Third Department refused to find the array unduly suggestive, despite agreeing that "certain of the photographs could have been better altered." (Id. at __.) No word yet on whether budding police Rembrandts can legally pencil in black eyes, devil horns or cheek scars.

Sample photo array:

Upcoming Court of Appeals arguments

The Court of Appeals has many interesting criminal cases on its January calendar (you can read the case summaries for all of the January arguments here. Only one--People v DaCosta comes out of the Fourth Department. The defendant in DaCosta was convicted of manslaughter in the second degree for recklessly causing the death of a Buffalo city police officer. Essentially, the officer was killed while pursuing defendant in a footchase across a busy expressway--according to the summary, the officer "chased after DaCosta, who was running alongside the six-lane Kensington Expressway. DaCosta crossed the expressway, vaulting over a six-foot chain link fence in the median. Officer McClellan followed him safely across the three outbound lanes of the expressway, but when the officer tried to get over the median fence, he fell into the inbound lanes and was struck and killed by a morning commuter." The Fourth Department affirmed the conviction, finding that DaCosta's conduct was reckless and "set in motion and legally caused the death of the officer." The issue for the Court of Appeals is whether DaCosta's conviction for reckless manslaughter was supported by legally sufficient evidence. DeCosta argues that the so-called "triggering cause" of the officer's death--i.e. jumping off of an unstable six-foot high fence--was neither foreseen nor foreseeable. The People argue that the ultimate harm--i.e. the office getting hit by a car--was a completely forseeable outcome of DaCosta's flight and his choice "of a dangerous route believing or hoping that it was likely to either stop or slow the pursuit."

I think DaCosta has a tough argument to make here--it sounds like this is a case primarily about proximate cause. There does not seem to be any question that DaCosta engaged in the necessary risk creation--he knew he was being chased by police, and he deliberately ran across a busy expressway in order to avoid capture. That conduct almost certainly creates a substantial risk of death to those officers chasing him, and DaCosta disregarded that risk by continuing to flee thru traffic. The real question is whether that recklessness was the legal cause of the officer's death. It has admittedly been awhile since 1L torts class, but my understanding is that the precise manner of death does not have to be foreseen--it is enough that the outcome itself is foreseeable. In this case, the risk created by DaCosta's conduct is that an officer would get hit by a car and die, and that is precisely what happened. There is no disconnect between the risk created and the outcome. Add to that the procedural hole DaCosta starts in--since he is making a legal sufficiency argument, the evidence will be viewed in a light most favorable to the People--and DaCosta would seem to have an uphill battle ahead of him. That said, it will be interesting to see how the Court comes out on this one.

The other case being argued before the Appeals in January that caught my interest is People v Burns. The question in Burns is whether a validly executed waiver of right to appeal precludes an appellant from arguing that his sentence was harsh and excessive before the Appellate Division. The appellants are arguing that "the waiver does not divest the Appellate Division of its constitutional power to reduce a 'rare' or 'extraordinary' or 'grossly excessive' sentence in the interest of justice." Not a terribly sexy issue, but it is one of enormous practical significance for everyday appellate practitioners (especially assigned counsel). Often, the only viable issue on a plea appeal is that a sentence is harsh and excessive, and as it stands the Appellate Divisions are refusing to entertain a harsh and excessive argument if defendant executed a valid waiver of right to appeal.

"Good, you picked out the right guy"

I'm preparing for an upcoming oral argument where my main point is that the police irrevocably tainted an eyewitness identification by telling the eyewitness (immediately after she tentatively identified my client from a photographic array) that she had in fact picked the right guy . This police practice actually has a name--positive postidentification feedback. Researchers have conducted studies that show giving positive postidentification feedback (i.e. witnesses are told after picking a suspect out of a lineup or array that they have indeed correctly identified the suspect) can have a profound adverse impact on the reliability of an eyewitness's subsequent identification of a suspect. Articles by the leading researcher into the effects of positive postidentification feedback can be found here. The reason I like this issue so much is that the conduct at issue--a police officer telling an eyewitness that he or she has identified the correct suspect--is completely gratuitous and serves only to reduce the reliability of any subsequent identification. I have posted an excerpt from my appellate brief below that summarizes the research and sets up the argument that an eyewitness who has been tainted by positive postidentification feedback should be precluded from making an identification at trial.

____________________

Traditionally, courts have focused on the way a lineup is constructed and conducted to determine if an eyewitness' identification of a suspect is tainted by undue suggestion. For example, it is by now well-settled that a photographic array or live lineup must be conducted in a manner that is fair and not unduly suggestive. (Simmons v US, 390 US 377, 384 [1968]; Wade, 388 US at 228-229; Point I, supra.) However, there is a growing body of empirical research that suggests the police conduct immediately after a pretrial identification can have a profound adverse impact on the reliability of an eyewitness' subsequent identification of a suspect.

Specifically, a 1998 study by researchers at the Iowa State University suggests that "giving feedback to eyewitnesses can result in their recalling that they were more confident in the identification than they really were at the time." (Wells & Bradfield, "Good, You Identified the Suspect": Feedback to Eyewitnesses Distorts Their Reports o the Witnessing Experience, 83 J App Psych 360, 360 [1998].) The researchers described the experiment as follows:

Research participants were shown a grainy security camera video from a Target Store in which a man is shown entering the store. They were told to notice the man as they would be asked questions about him later. After viewing the brief video, they were informed of the fact that the man murdered a security guard moments later. Participants did not see the murder itself on the video. They were then asked to identify the gunman from a photospread. The photospread was the same one used in the actual criminal case, except that we removed the gunman's photo. As shown in prior research, absence of the actual target from a lineup or a photospread leads to a high rate of misidentification, especially when eyewitnesses are not specifically warned that the actual culprit might not be in the lineup. In fact, our procedure was successful in getting every participant to make a false identification. Following the false identification, the experimenter gave confirming feedback ("Good. You identified the actual suspect."), disconfirming feedback ("Actually, the suspect was number ___î), or no feedback. A short time later, the participant-eyewitnesses were asked a number of questions, including how certain they were at the time of their identification decision, how good of a view they got of the gunman's face, how long it took them to identify the gunman from the photospread, and so on.

(Id. at 363.)

The results of the experiment were clear; as explained by the researchers,

This work demonstrates that a casual comment from a lineup administrator following eyewitnesses' identifications can have dramatic effects on their reconstructions of the witnessing and identification experience. A confirming-feedback remark not only inflates eyewitnesses' recollections of how confident they were at the time, it also leads them to report that they had a better view of the culprit, that they could make out details of the face, that they were able to easily and quickly pick him out of a lineup, that his face just "popped out" to them, that their memorial image of the gunman is particularly clear, and that they are more adept at recognizing faces of strangers. These effects were very robust, with effect sizes that exceed what are normally considered large effects in psychology.

(Id. at 374 [emphasis added].)

As the Iowa researchers noted, the practical implications of their findings are profound. "These findings mean that extramemorial factors, having nothing to do with the actual quality of their view or the uncertainty that they actually felt at the time, can distort the eyewitnesses" judgments. This, in turn, means that criteria used to evaluate identification evidence (e.g., the Biggers criteria of certainty, opportunity to view) can actually be driven by the behavior of the agent administering the lineup, in particular the agent's decision regarding whether to give feedback to the eyewitness or not." (Id. at 367.)

This experiment has been repeated numerous times with the same result. (Bradfield, Wells & Olson, The Damaging Effect of Confirming Feedback on the Relation Between Eyewitness Certainty and Identification Accuracy, 87 J App Psych 112 [2002]; Wells, Olson & Charman, Distorted Retrospective Eyewitness Reports as Functions of Feedback and Delay, 9 J Exp Psych 42 [2003]; Semmler, Brewer & Wells, Effects of Postidentification Feedback on Eyewitness Identification and Nonidentification Confidence, 89 J App Psych 334 [2004]; see also, Doyle, Stories of Eyewitness Error, 27 Nov Champ 24 [2003].) Thus it seems clear from the research that positive post-identification feedback essentially destroys whatever reliability an eyewitness's identification may have had, causing even a witness who made a patently false identification believe strongly that the identification was correct, and to exaggerate his or her ability to observe the suspect. "[T]he sensory traces left in memory are, just like blood, drug or semen evidence, subject to contamination. The crucial differences in the memory trace evidence are that if the memory trace is contaminated, there is no uncontaminated sample of the trace left to test, and the contamination may never be proved or disproved by further testing." (Doyle, 27 Nov Champ at 27.)

As caustic an effect as positive post-identification feedback has, it is also a completely unnecessary phenomenon. Unlike some factors that can effect the reliability of an in-court identification, positive post-identification feedback is entirely within the control of the police and thus utterly avoidable:

[p]ostidentification feedback is under the control of the justice system because it is usually given by the person who administers the lineup. That person, usually a detective, knows who the suspect is and, therefore, can give a witness information about the "accuracy" of his or her identification.

(Bradfield, Wells & Olson, The Damaging Effect of Confirming Feedback on the Relation Between Eyewitness Certainty and Identification Accuracy, 87 J App Psych 112, 113 [2002].)

The harmful effect of the type of distortion produced by positive post-identification feedback cannot be overstated. Jurors believe eyewitnesses who are confident in their identification. (Wells, 83 J App Psych at 361 ["There is good empirical evidence to indicate that the confidence with which eyewitnesses give identification testimony is the most important single quality of testimony in terms of whether participant-jurors will believe that the eyewitness correctly identified the actual perpetrator"].) But as the research shows, an eyewitness's confidence has little or nothing to do with the actual accuracy of his or her identification where an investigator immediately confirms the witness's identification of the suspect from a lineup or photographic array. Thus, the police inflate the eyewitness's confidence by confirming an identification, and jurors believe the eyewitness at trial based on that false confidence.

What not to say at sentencing

People v Thomas, __ AD3d ___ [3d Dept 2005]

The defendant in Thomas was sentenced as a persistent felony offender to 25 years to life for throwing a cup of his own waste at a correction officer; according to the decision, as the correction officer passed defendant's cell, "a cup of liquid flew out from the cell and hit him on the right side of his body. Purportedly, defendant stated, 'There, take that.' The substance was later determined to be a combination of urine and fecal matter." (People v Thomas, __ AD3d __.) Gross and not even remotely hygienic--but 25 to life? Well, the Court points out in a footnote some comments made by defendant at sentencing:

At sentencing, defendant stated, 'If I had to do it again, I would do it all over again. He is lucky that I couldn't get to his ass where I could shove a shank in his f**ing neck.'

(Id. [asterisks in original].)

Proving once again that a defendant's right to address the sentencing court is not all it is cracked up to be.

New Year's Housekeeping

I have added some new Blawgs over to the left for the New Year--welcome to Appellate Law & Practice, Second Circuit Blog, Second Opinions (all three useful even to those criminal appellate lawyers representing clients primarily before state appellate courts [because with the dismal success rate for criminal defendants before New York appellate courts, it does not hurt to raise federal issues that can be pursued after state remedies have been exhausted]), New York Civil Law (because you never know when an Article 78 or other civil remedy will be necessary) and Defensology. Also, thanks to Crimlaw and Sui Generis for generously linking to posts here at I.I. (and driving up traffic!). Happy New Year!

Final unofficial stats: Fourth Department 2005

Here are my unofficial 2005 stats for the Fourth Department:

Total criminal cases decided: 577
Total reversals/modifications: 58

On the face of it, the Fourth Department reversed or modified about 10% of the criminal convictions reviewed, which is right around the historic average for the Court. However, 5 of those 58 reversals were People's appeals, 2 were modifications of orders of protection that can hardly be characterized as substantive reversals, and 17 were sentence modifications (some more significant than others). When those cases are removed, the actual number of substantive, pro-defendant reversals drops to 38 for the year--or about 5% of the total criminal cases heard.

Unofficial stats: November/December 2005 term

Here are my unofficial stats for the Fourth Department's November/December 2005 term:

Total criminal cases decided: 84
Total reversals/modifications: 4

Of those four reversals, one was a People's appeal. A tough term to be a criminal defendant.

I will have the complete unofficial year-end stats for the Fourth Department tomorrow.

Leftovers (November/December term)

Here are the rest of the noteworthy decisions from the Fourth Department's November/December 2005 term (such as they are):

People v Vigliotti, __ AD3d __ (available here): Defendant's attorney was found guilty of federal crimes and disbarred subsequent to representing defendant at murder trial. It was also revealed during disciplinary action that the attorney was addicted to cocaine and alcohol during time he was representing defendant. Defendant made a 440 motion arguing that "he was denied effective assistance of counsel because defense counsel had a substance abuse addiction and was involved in criminal activity at the time he was representing defendant." (People v Vigliotti, __ AD3d at __.) The trial court denied the 440 motion without a hearing, and the Fourth Department affirmed because defendant "failed to allege any facts linking the problems of defense counsel to his representation of defendant." (Id.)

People v Harrison, __ AD3d __ (available here) & People v Haberer, __ AD3d __ (available here): sounding a familiar refrain, the Fourth Department finds the defendant's legal sufficiency arguments unpreserved because trial defense counsel failed to renew his motion after presenting evidence."

People v Little, __ AD3d __ (available here): finding Sandoval issue only partially preserved because "[a]lthough defendant contends that the court's Sandoval ruling constitutes an abuse of discretion, he objected to the court's ultimate Sandoval ruling only with respect to the ruling on a misdemeanor sexual abuse conviction, and thus only that part of his contention is preserved for our review." See my previous post on this issue here.

People v Vega, __ AD3d __ (available here): holding that defendant's waiver of right to appeal "encompasses the contention of defendant that the Rockefeller Drug Law Reform Act, enacted after he was sentenced, violates his right to equal protection of the law because it allows persons convicted of class A-I drug felonies to petition for resentencing pursuant to the Act's sentencing scheme but does not afford the same relief to persons, including defendant, who were convicted of class A-II drug felonies."

People v Taylor, __ AD3d __ (available here): emergency exception to warrant requirement found applicable where "[i]n responding to a telephone call from a relative informing the police that defendant's father was not answering telephone calls or responding to letters or knocking on his door for a period of several weeks, a police officer detected a 'strong aroma' emanating from an open window, and he believed the odor to be that of a decaying body." I have not read the cases the Fourth Department cites to for this broad reading of the emergency exception, but the fact that a person is missing for weeks and the responding officer can smell the decomposing body would seem to lead to the unremarkable conclusion that time is not really of the essence anymore.


People v McClain, __ AD3d __ (available here): SCI held jurisdictionally defective "to the extent that it charges attempted robbery in the third degree, which under the circumstances was not properly joinable with the assault charges on which defendant was held for action of the grand jury;" the Court further noted that the issue did not need to be preserved and was not encompassed by defendant's waiver of right to appeal.

People v Rodriguez, __ AD3d __ (available here): trial court erred "in permitting the prosecutor to impeach his own witnesses because the trial testimony of those witnesses did not tend to disprove the People's position with respect to a material fact or affirmatively damage the People's case," but error harmless.

Fourth Department splits with First and Second Departments over correct "justification" charge in murder cases with manslaughter lessers

People v Bolling, __ AD3d __ [available here]

At the end of Brandon Bolling's murder trial, the trial court "submitted the two counts of murder followed by the lesser includes charges of manslaughter in the first and second degrees, and then gave an appropriate charge on the defense of justification, instructing the jury to acquit defendant of any charge it found he committed if the People failed to disprove justification beyond a reasonable doubt." (People v Bolling, __ AD3d __, ___ [4th Dept 2005].) The trial court did not further instruct the jury "that, if it found that defendant's conduct was justified with respect to the first count of the indictment, it should cease deliberating and should not consider the second count or any lesser included counts." (Id.) On appeal, defendant argued that the failure to give this further charge--that once justification was found on a top charge, the jury must acquit on all lesser counts and stop deliberating--was error requiring reversal. The Fourth Department disagreed and affirmed, explaining only that "the court's charge was a correct statement of the law when viewed in its entirety and adequately conveyed to the jury 'the correct principles of law to be applied to the case.'" (Id [citations omitted].)

As noted by the Fourth Department in its decision, the First and Second Departments have reached the opposite conclusion on this issue. Just this past year, the Second Department in People v Feuer noted:

This Court has repeatedly held that the error committed by the trial court in failing to instruct the jurors that if they found the defendant not guilty of a greater charge on the basis of justification, they were not to consider any lesser counts, is of such nature and degree so as to constitute reversible error. Our precedent in this regard is sound and ineluctable.

(People v Feuer, 11 AD3d 633, 634 [2d Dept 2004].)

The reason for reversing in cases where the jury was not expressly told that a finding of justification on a top charge precludes a finding of guilty on a lesser charge is simple: if the jury finds defendant's actions were justified, the defense does not simply knock out an element or negate intent, but rather renders the conduct entirely lawful. Thus, where no specific charge is given, "there is no way of knowing whether the acquittal of the two murder counts was based on a finding of justification, so as to require acquittal of the two manslaughter counts as well, [and] the judgment must be reversed and the indictment dismissed [...]." (People v Roberts, 280 AD2d 415, 416 [1st Dept 2001].)

The reasoning of the First and Second Departments seems sound, and the Fourth Department's decision in Bolling does not attempt to address the reasoning adopted by the decisions from the First and Second Departments, and instead simply states that "we decline to follow them." (Bolling, __ AD3d at ___.) Whatever the Fourth Department's reasoning, the split between the Fourth Department and the First and Second Departments on this issue could not be more clear; hopefully the Court of Appeals will grant leave and settle the matter.

I Give You . . .

the two substantive pro-defendant reversals from the Fourth Department's latest term.

People v Skardinski, __ AD3d __ [available here]
People v Fagan, __ AD3d __ [available here]

Each opinion reaches a good result, but neither breaks any new ground. In People v Skardinski, the Fourth Department found the DWI defendant's purported "consent" to a blood test was not voluntary where, 1) she was very badly injured from the accident, 2) she was receiving copious amounts of morphine, 3) the State Trooper lied to her about the consequences of withholding consent, and 4) "defendant signed the consent for at an irregular angle across the title of the document rather than on the designated signature line." (People v Skardinski, __ AD3d at __.) The Fourth Department's opinion comes to the unremarkable conclusion that any consent obtained from a severely injured, drugged up defendant who has been lied to by the police is not voluntary. The only question raised by this opinion is how the trial court found consent on those facts in the first place.

The other term's reversal is People v Fagan, where the Fourth Department reversed because "County Court erred in refusing to charge the jury on the justifiable use of deadly physical force to prevent or terminate a burglary." (People v Fagan, __ AD3d ___.) The facts of Fagan read like a real-life match of paper-rocks-scissors:

When viewed in a light most favorable to defendant, the evidence herein establishes that the victim threatened to kill defendant and then chased defendant into defendant's house while carrying a hatchet. When the victim fell once inside the house and dropped the hatchet, defendant picked up the hatchet. The victim ran outside and then reentered the house, swinging a two-by-four at defendant.

(Id. at __.)

On those facts, the Court concluded "that there is a reasonable view of the evidence that the victim entered and reamained inside defendant's house with the intent to commit a crime, i.e. an assault. The victim's 'violent conduct and numerous threats to kill defendant . . . support the reasonableness of defendant's belief that deadly physical force was necessary to prevent or terminate a burglary.' The court thus erred in failing to instruct the jury on the justifiable use of deadly physical force to prevent or terminate a burglary." (Id..) The lesson of Fagan is a practicle one: a machete will beat a two-by-four every time.

Decision Day (November/December 2005 Term)

The Fourth Department handed down decisions for the November/December 2005 term today. No standout opinions (although I guess defense attorneys should not complain after the two great Court of Appeals decisions handed down this week). For tonight, I will highlight People v Fuqua, a case that should serve as a cautionary tale to would-be criminals about the care and thought that needs to go into picking a proper street name--preferable one that will not come back to haunt you. The issue in Fuqua was whether the police officer had reasonable suspicion to believe Mr. Fuqua was armed sufficient to justify the pat-down search for weapons that led to the discovery of drugs. The Court had no problem in finding such reasonable suspicion existed, in part because the "defendant's street name, "Blaze Off", related to defendant's propensity to use guns." (People v Fuqua, __ AD3d __ [available here].) For those defense attorneys employing a holistic approach to criminal defense work, perhaps it is worth considering advising your clients of the benefits of a wussy street name (perhaps Fuzzy or Cuddles). Sure, such a moniker does not exactly inspire fear; but neither does it give a police officer reason to believe you are carrying.

More on the other notable decisions from this terms packet (along with more on the two great Court of Appeals decisions decided this week) over the next few days.

People v Suarez: First Thoughts

It is beyond clear that the Court of Appeal's per curiam opinion in Suarez is meant to be a practical guide to trial courts dealing with the difficult issues raised by the Court's prior decisions in Gonzalez, Hines, and Payne. In a nutshell: the Court holds that "depraved indifference" murder and intentional murder should almost never be submitted together to the jury--and in a case where the indictment charges both intentional and "depraved indifference" murder, the trial court should dismiss one of counts before giving the case to the jury. From the opinion:

When depraved indifference murder is properly understood, 'twin-count' indictments--charging both intentional homicide and depraved indifference murder--should be rare. Twin-count submissions to a jury, even rarer. For by the time the proof has been presented, it should be obvious in most cases whether or not the evidence establishes 'an intentional [killing] or no other'. Thus, where twin-count indictments are lodged, trial courts should presume 'that the defendant's conduct falls within only one category of murder and, unless compelling evidence is presented to the contrary, dismiss the count that is least appropriate to the facts.'

(People v Suarez, __ NY3d at __.)

Indeed, for purposes of a single-victim homicide (i.e. excluding the "shooting/driving/throwing a grenade into a crowd" scenario),the Court has limited the proper scope of "depraved indifference" murder to two rare factual situations:

[D]epraved indifference murder can also be found in certain unintentional killings involving only a single individual. These limited cases are those in which--although the intent to kill is absent--the defendant's utter depravity in causing the victim's death warrants punishment in excess of that available for manslaughter. [...]

Two fact patterns have recurred over the past four decades of experience under the Revised Penal Law. First, when the defendant intends neither to seriously injure, nor to kill, but nevertheless abandons a helpless and vulnerable victims in circumstances where the victim is highly likely to die, the defendant's utter callousness to the victim's moral plight--arising from a situation created by the defendant--properly establishes depraved indifference murder. [...] Second, . . . the crime is . . . established when a defendant--acting with a conscious objective not to kill but to harm--engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim.

(Id. at __.)

I would guess the Court's per curiam opinion will have its (apparently) intended effect of dramatically reducing the charging of "depraved indifference" murder to a rare subclass of murder, and thereby avoid entirely the thorny issues that arise when the jury convicts a defendant of depraved indifference murder where the evidence shows a manifest intent to kill. Of course, the Court is also (quite legitimately) attempting to spare itself the unpleasant task of reversing those "depraved indifference" convictions, and opening the prison gates on intentional killers because prosecutors and trial courts want to have their cake and eat it, too.

One quick nit to pick from the decision: in discussing the difference between "depraved indifference" murder and manslaughter in the first degree, the Court notes:

[S]omeone who intends to cause serious physical injury does not commit depraved indifference murder because the intended victim dies. By definition, "serious physical injury" includes injury "which creates a substantial risk of death, or which causes death". Thus, one who acts with the conscious intent to cause serious physical injury, and who succeeds in doing so, is guilty only of manslaughter in the first degree. Otherwise, every intentional manslaughter would also establish depraved indifference murder--a result plainly at odds with the discrete classification set forth in the statute.

(Id. at ___.)

I strongly disagree with that bolded bit. In fact, it does not take much imagination to think of a fact scenario where a person can intend to cause serious physical injury and ultimately cause death, but not create and disregard a grave risk of death in doing so. For example: suppose Victim owes substantial gambling debts to Defendant. Defendant cuts off Victim's thumb to encourage payment. Unbeknowst to Defendant, Victim has no clotting agents in his blood, and bleeds to death before treatment can be rendered. In that scenario, a conviction for first degree manslaughter is clearly made out: Defendant intended to cause serious physical injury (cutting off the thumb), and death resulted. However, it does not follow that "depraved indifference" murder is made out, because the harm inflicted did not create a grave risk of death, and Defendant did not ignore any such risk by cutting the thumb off.

But the flip-side is also true--in certain situations, a conviction for manslaughter in the first degree and a conviction for depraved indifference murder can be completely consistent. The reason is simple: a person can act with a different mental state for different results. For example: say our Victim owes gambling debts, but this time Defendant cuts off Victim's leg and leaves him bleeding on a busy street corner. Victim dies as a result of his wounds. The Defendant testifies that he had no intent to kill, because then he would never collect his debt. Assume the jury believes Defendant. In that case, a conviction for manslaughter in the first degree is clearly made out: Defendant intended to cause serious physical injury, and death resulted. I would also argue that a conviction for depraved indifference murder is made out, because Defendant, while not intending to cause death, arguably created a grave risk of death by cutting off Victim's leg, and ignored that risk in going ahead with the amputation. I would argue both counts are consistent, both could be submitted to the jury, and the jury could convict on both: as to the outcome of serious physical injury, Defendant acted intentionally; as to the outcome of death, Defendant acted recklessly (by creating the grave risk of death and ignoring it) under circumstances evincing a depraved indifference to human life.

I understand what the Court of Appeals is doing--they are clarifying a messy area of the law and providing (hopefully) clear guidelines for trial courts to follow. However, I think the Court's conclusory holding that every time a defendant intends to cause serious physical injury and death results he "is guilty only of manslaughter in the first degree" ignores that a defendant can have separate, distinct mental states for different distinct results.

Moreover, this distinction between manslaughter in the first degree and "depraved indifference" murder may lead to some counter-intuitive outcomes. Take a fact scenario similar to the one encountered in People v Kibbe (35 NY2d 407). The Court in Suarez held out the facts of Kibbe as the quintessential "depraved indifference" murder; as the Court notes, the defendants in Kibbe "robbed an intoxicated victim and forced him out of a car on the side of a dark, remote, snowy road, partially dressed and without shoes in subfreezing temperatures, where he was struck by a passing truck and killed." (Suarez, __ NY3d at ___.) Fair enough. But change the facts a little, and assume the intoxicated victim was robbed, intentionally stabbed in the thigh and then dumped on the side of the road in subfreezing temperatures, and the victim died of blood loss (with death's arrival hastened by exposure). By the majority's logic in Suarez, this fact pattern can only support a conviction for manslaughter in the first degree (because defendant intentionally inflicted a serious physical injury [the stab wound to the thigh] and death resulted). But this is counter-intuitive, because if the defendant been less evil and not stabbed the victim in the leg before dumping him, then he would be subject to the much more severe criminal sanction of a "depraved indifference" murder conviction. I think this is unnecessarily rigid--why not hold instead that a conviction for manslaughter in the first degree does not necessarily preclude a conviction for "depraved indifference" murder because the relevant mens reas are not mutually exclusive (i.e. two different mens reas for two different results [intentionally causing serious physical injury, recklessly causing death])?

Perhaps this is why the three-judge concurrence notes that "law school hypotheticals are not the stuff of day-to-day criminal courts." (Id. at __.) More on the concurring opinions and Judge Graffeo's dissent soon.

BREAKING: Court of Appeals hands down important "depraved indifference murder" decision

People v Suarez & People v McPherson __ NY3d __ (available here.)


The Court of Appeals has just handed down a lengthy, in-depth per curiam opinion further dealing with the difference between "depraved indifference" murder in the second degree, "intentional" murder in the second degree, manslaughter in the first degree and manslaughter in the second degree. (See my previous posts on this topic here, here, and here.) This joint appeal involved two defendants who were convicted of "depraved indifference" murder for stabbing their victims to death. The per curiam opinion reverses both convictions, and further clarifies that "depraved indifference" murder is not properly charged in the majority of cases; from the opinion:

The proliferation of the use of depraved indifference murder as a fallback theory under which to charge intentional killers reflects a fundamental misunderstanding of the depraved murder statute . . . depraved indifference murder properly applies to only a small, and finite, category of cases where the conduct is at least as morally reprehensible as intentional murder.

(People v Suarez, __ NY3d at __.)

The per curiam goes on to distinguish (at great length) depraved indifference murder from intentional murder and both degrees of manslaughter. Obviously, I will have much more to say about this opinion after a chance to fully digest it. The most interesting bits come from the three-judge concurrence of Judge G.B. Smith, Judge R.S. Smith and Judge Rosenblatt, who "would take a step beyond the per curiam opinion and say what the Court stops short of saying: that Register and Sanchez should be explicitly overruled." (Id. at __.) Judge Read also writes separately to concur, and Judge Graffeo concurs in one case and dissents in the other.

All in all, a monster decision in what was already an eventful week for the Court of Appeals (see my previous post on Goldstein here.)

Plus, the Fourth Department hands down decisions from its November/December term today.

Court of Appeals: Psychiatrist's trial testimony about what non-testifying third-parties told her prior to trial "testimonial" under Crawford

People v Goldstein, __ NY3d __ [available here]

The Court of Appeals today handed down an opinion defining for the first time in New York the reach of the Supreme Court's recent decision in Crawford v Washington. The Supreme Court in Crawford left open the most important question--what consitutes a "testimonial" statement? Importantly for criminal defendants, the Appeals (with Judge R.S. Smith writing for the majority) set forth a broad definition of "testimonial", holding that the statements of certain non-testifying third-parties made to the People's retained psychiatrist before trial were testimonial because "we infer that [the third-parties] knew they were responding to questions from an agent of the State engaged in trial preparation. None of them was making 'a casual remark to an acquaintance'; all of them should reasonably have expected their statements 'to be used prosecutorially' or 'to be available for use at a later trial.'" (People v Goldstein, __ NY3d __ [2005].) The Court went on to note "[r]esponses to questions asked in interviews that were part of the prosecution's trial preparation are 'formal' in much the same sense as 'depositions' and other materials that the Supreme Court identified as testimonial . . . Nor do we think the difference between an expert retained by the State and a 'government officer' is of consitutional significance here." (Id.) The Court reversed because the psychiatrist was able to repeat what she was told by these third-party witnesses at trial without those third-parties being available for cross-examination. (Id.)

This is a great opinion that reasonably defines "testimonial" in a broad sense, and should cover most statements by witnesses to police officers during a criminal investigation, autopsy reports (see my previous post on this open question here), and any number of other statements made under express questioning by law enforcement agents.

Judge Read dissented, but only because she would have found the error
harmless. (Id.)

The Goldstein opinion also calls into question Justice Fisher's recent decision in Green v DeMarco (posted about here), where he found DWI certification records not testimonial. Certainly, whatever else the Albany techs servicing the breathalyzers knew or thought about the nature of their calibration work, they should have reasonably known that the calibration records they generated would be used to prosecute DWI defendants. It does not seem to be possible to square Justice Fisher's decision in DeMarco with today's Court of Appeals decision in Goldstein.

Court of Appeals: Representation by "impostor" posing as attorney subject to showing of prejudice if co-counsel duly admitted

People v Jacobs, 2005 WL 3452323, 2005 NY Slip Op 09574 [available here]

When James Jacobs stood trial under a 10 count indictment for robbery, assault and "related charges", he (quite reasonably) thought that both of the lawyers defending him were duly licensed attorneys. Turns out, one of his attorneys--the one who gave the opening statement, put on the defense witnesses, made the motion for a trial order of dismissal, and lodged various objections during the course of the trial--was not actually a lawyer, but rather a "law school graduate who has passed the bar but [wa]s masquerading as a duly licensed attorney". (People v Jacobs, __ NY3d __ [G.B. SMITH, J., dissenting].) Although the Court of Appeals has previously "held that when 'a defendant in a criminal proceeding has unwittingly represented by a layman masquerading as an attorney but in fact not licensed to practice law, his conviction must be set aside without regard to whether he was individually prejudiced by such representation" (Jacobs, __ NY3d at ___, quoting People v Felder47 NY2d 287, 291 [1979]), Chief Judge Kaye's majority opinion in Jacobs draws a distinction with this prior precedent and affirms Mr. Jacobs' conviction:

A defendant is entitled to the effective assistance of counsel. And because counsel 'can mean nothing less than a licensed attorney at law', a defendant who is represented only by a layperson has been completely deprived of counsel and is entitled to per se reversal of a resulting conviction. But when, as here, a defendant has been at all times represented by an admitted attorney, mere participation of a non-lawyer in the defense does not, without more, mandate reversal.

Rather, because the active participation of a licensed attorney throughout a defendant's trial should generally suffice to ensure that the defendant's rights are protected, a conviction should not be reversed in the absence of a showing of prejudice.

(Jacobs, __ NY3d at __. [citations omitted].)

Judge G.B. Smith dissented. While his dissenting opinion agrees for the most part with the majority's legal guideposts (i.e. that per se reversal is only appropriate in instances of total deprivation of counsel), he argues that the fact that an unlicensed layperson was solely responsible for representing defendant at key stages of the proceeding--including at opening statements, during the defense case, and while arguing for a trial order of dismissal--the deprivation of defendant's right to counsel was complete for those stages. From the dissent:

[A]t a bare minimum, the right to counsel means the right of a defendant to be represented by a licensed attorney at law during all phases of the criminal proceeding. Here, defendant was not afforded such protection during his opening statement and the presentation of his case. [...]

Because this case involves the absolute deprivation of counsel during those portions of the trial handled by an imposter, not representation, related to those portions of the trial conducted by a duly licensed counsel, that may or may not have been effective and meaningful, the Felder rule, that defendant is not required to demonstrate that he was prejudiced in terms of his representation, applies.

(Jacobs, __ NY3d at __ [G.B. SMITH, J., dissenting].)

If the licensed attorney in Jacobs was the supervisor of the unlicensed attorney, I would be comfortable with the majority's opinion, because under those facts one could be reasonably assured that the non-licensed impostor's actions at trial were being monitored (and presumably subject to the pre-approval of) a licensed attorney. But this was not the case in Jacobs--the licensed attorney and the non-licensed imposter were colleagues who split up the trial duties as a matter of efficiency, and no supervisory relationship existed. (Jacobs, __ NY3d at __.) Thus, one of the factual planks of the majority's reasoning--that "the active participation of a licensed attorney throughout a defendant's trial should generally suffice to ensure that the defendant's rights are protected"--does not really support the weight put upon it by the majority. For all we (or the Court) know, the licensed co-counsel was doing the crossword while the imposter was opening; or perhaps the only attorney at the defense table was putting the finishing touches on her closing argument while the imposter was making the motion for a trial order of dismissal.

That said, surely the factual scenario giving rise to the Jacobs decision is a rare one, so the majority's opinion should not have much fallout.

Nicole over at Sui Generis has her own take on Jacobs here. Sui Generis has also been added to the Blawgs list over at the left.

Just in time for the holidays . . .

People v Hendrie, __ AD3d __ [3d Dept 2005] [available here.]

Nothing puts you in the holiday spirit quite like the following fact pattern from a recent Third Department decision:

On the evening in question, defendant went to the residence of his former girlfriend, Helen LaPorte, ostensibly to deliver a Christmas gift for the LaPorte children. Upon arrival, however, defendant withdrew a sawed-off shotgun from the Christmas package, forced his way into the residence and thereafter shot and killed [his ex-girlfriend's new boyfriend].

(People v Hendrie, __ AD3d __.)

Well, I guess the holidays can be pretty stressful. Beyond the festive facts, the Court in Hendrie held that the mildly retarded defendant with an IQ of 55 was nevertheless competent to knowingly, voluntarily and intelligently waive his Miranda rights. From the decision:

Defendant's contention is that, as a result of his being mildly mentally retarded, he was incapable of fully comprehending his constitutional rights to remain silent and to the assistance of counsel. In support of this contention, defendant presented the testimony of a psychologist who . . .concluded that the defendant's IQ test score of 55 placed him at the low end of the mild mental retardation range. This expert witness further testified, as relevant hereto, that defendant lacked the capacity to understand the concepts embodied in the Miranda warnings given to him by the police.

Subnormal intelligence, in and of itself, does not require suppression of statements where it is established that a defendant had the ability to understand the basic concepts of the right to remain silent, the right to the assistance of counsel and the fact that any statement could be used against him or her. In our view, the record lacks any indicia that defendant failed to sufficiently comprehend the warnings . . . [t]he prosecution witnesses established that defendant was composed and relaxed and responded to questions in a normal and appropriate manner, at no time exhibiting any uncertainty or confusion.

(Hendrie, __ AD3d at __ [emphasis added].)

This is a troubling decision. The Third Department recognized in the decision that it was the People's burden to establish the defendant understood his rights, but the Court then treats the "lack of indicia" in the record that defendant did not understand the rights as sufficient to establish that he must have understood them. This is circular, and allows the People to establish understanding by negative inference. Further, it is hard to see how the defendant being "composed and relaxed" gives any inference of competence to understand the Miranda warnings. And how an "absence of indicia" and calm demeanor can somehow overcome an expert psychologist's opinion that the defendant was not able (by reason of mental retardation) to understand the warnings is beyond me.

Surprise decisions

People v Rucinski, 2005 NY Slip Op 09437 [available here]

Green v DeMarco, __ Misc 3d ___ [available here]

The Fourth Department is not handing down decisions from the November/December term until December 22. But Christmas came early for one appellant, as the Court posted one new decision a week or two early and reversed a defendant's conviction for Assault in the Second Degree (hat tip: Sui Generis). In People v Rucinksi, the assault second was charged under the section of the penal law that elevates the degree of assault if physical injury is inflicted "in the course of and in furtherance of the commission . . . of a felony", because defendant caused physical injury as a result of driving while intoxicated. The People argued that the felony DWI could serve as the underlying "felony" for purposes of charging assault in the second degree; the Fourth Department disagreed and held the Legislature has already "created a statutory framework for vehicular assaults and the heightened risks posed by intoxicated drivers [...], thereby rendering reliance upon general assault statutes inappropriate in cases involving vehicular assaults. [...] We thus conclude that a felony DWI may not serve as the underlying felony for assault in the second degree [...]." (People v Rucinski, 2005 WL 3313144.) This decision is a welcome and logical extension of the Fourth Department's prior decision in People v Snow, where the Court reached the same conclusion as to charging the similar provision for assault in the first degree. (See People v Snow, 138 AD2d 217.)

Today's other significant decision (Green v DeMarco) comes not from the Fourth Department, but from Supreme Court Justice Kenneth Fisher, who handed down a decision in an article 78 proceeding filed by the Monroe County District Attorney that alleged a Town Court judge's ruling that two "certification" documents offered in support of DWI prosecutions to establish that the breathalyzer was working correctly were testimonial hearsay and thus inadmissible absent an opportunity to cross-examine the lab techs from Albany who prepared the certifications. Got all that? This decision is thoughtful and well-written, and requires more attention than I have the energy or time to give it tonight. The nutshell for now: Justice Fisher disagreed with the Town Court, and held that the type of certifications at issue had "primary business purposes", were not "accusatory statements", and did not otherwise "implicate the core concerns of the Confrontation Clause as interpreted by Crawford." (Green v DeMarco, cite.) Besides the obvious Crawford issues raised by this decision, another is raised: can a Supreme Court Justice essentially sit as an appellate judge and second-guess a Town Court judge on an evidentiary issue that would otherwise not be appealable by the People? Is this a proper use of an article 78 proceeding? I do not know the answer, but will post at more length on this issue and the more obvious Crawford issues over the next few days.

Court of Appeals: Leftovers

People v Green, __ NY3d __, 2005 WL 3091106

In a somewhat counter-intuitive decision, the Court of Appeals holds in People v Green that, while a defendant may have a perfectly viable defense to a criminal charge, he is not necessarily entitled to have the jury instructed on that defense. Mr. Green was arrested and charged with robbery for forcibly taking a CD player from a man named Pabon--"Defendant snatched the player out of Pabon's hand, walked away and allegedly began listening to the 'Busta Rhymes' CD in the disc player." (People v Green, 2005 WL 3091106.) Mr. Green claimed the disc player and Busta CD was actually his, and had been taken from him earlier that day. As the Court notes in its decision, this can be a valid defense to robbery--"because the prosecution must prove beyond a reasonable doubt that the defendant intended to take property from someone with a superior right to possession, a good-faith but mistaken claim of right might defeat a robbery prosecution." (Id.) However, the error claimed on appeal was not that the trial court thwarted defendant's attempt to make out this defense; it was that the trial court erred in refusing to specifically charge the jury that defendant's good-faith belief that the CD player was his could be a defense to the robbery. The Court of Appeals held that the defendant was not entitled to an instruction:

[S]imply because a jury might be convinced by a claim-of-right argument, it does not follow that a claim-of-right charge, derived from a statutory defense limited to certain types of larceny, is also available to defendants in robbery prosecutions. Such an instruction by the court, over and above an instruction on the element of intent, unquestionably aids the defendant by underscoring one aspect of proof, or lack of proof. The Legislature did not provide that additional assistance where the defendant employs physical force.

(Id. [emphasis in original])

The Court notes the policy issue involved--"a claim-of-right charge in the robbery context encourages forcible self-help in pursuing property"--and that very practical consideration no doubt played a part in the outcome. (Id.) However, it leaves similarly-situated defendants in the somewhat awkward position of having a complete defense recognized by the Court of Appeals, but no way to specifically inform the jury of this defense. (Id. [leaving defendants "free to make the argument to the jury" but entitled to no charge].) Regardless of the policy involved, this seems a bit odd.

People v Carvajal, __ NY3d __, 2005 WL 3108185

As noted previously, this decision is a monster--a 17 page majority opinion followed by 23 pages of dissent. The majority's holding in a nutshell--a New York conviction for constructive possession of drugs can stand even though neither the defendant nor the drugs were in New York at the time of arrest, where the defendant engaged in conduct in New York sufficient to establish a conspiracy to possess the out-of-state drugs, because CPL 20.20[1][c] allows for "jurisdiction over an offense . . . based on a conspiracy occurring in New York to commit that offense." (People v Carvajal, 2005 WL 3108185.) The dissent argued that "the Constitution of the State of New and the laws of the State of New York do not permit a person to be found guilty of criminal possession of a controlled substance on a theory of constructive possession rather than actual possession where both the substance and the defendant are in California [...]." (Id.)

Police officer's subjective intent relevant for Miranda "interrogation" analysis?

People v Decker, 2005 NY Slip Op 08569, 2005 WL 3022014 [available here]

In a drug prosecution alleging that defendant was in constructive possession of certain drugs found in his apartment, the police asked defendant "which key on the key ring opened the door to defendant's apartment." (People v Decker, 2005 WL 3022014.) The Fourth Department in People v Decker held that this express questioning about the keys was not interrogation under a Miranda analysis because "[t]hat question was not designed to invoke an incriminating response." (Id.) This focus on "question design", i.e. what the officer subjectively believed about the purpose of the question, seems at odds with clear Court of Appeals precedent. In fact, it is hard to see how the Court of Appeals could be any more clear on this score:

What constitutes 'interrogation' of a suspect . . . is determined not by the subjective intent of the police, but by whether an objective observer with the same knowledge concerning the subject as the police had would conclude that the remark or conduct of the police was reasonably likely to elicit a response.

(People v Ferro, 63 NY2d 316, 319 [1984].)

It will be interesting to see if the Court of Appeals grants leave to review whether the Fourth Department has strayed too far in Decker, or whether the seeming irreconcilable holdings of Decker and Ferro are chalked up to loose language.

Unofficial stats (October 2005 term) and Best of the Rest

Here are my unofficial stats for the Fourth Department's October 2005 term:

Total criminal decisions: 91
Reversals / modifications / remands: 8

A busy term, and just a click fewer reversals than normal. Here are the other notable decisions from the term:

People v Brown: depraved indifference murder conviction supported by legally sufficient evidence where the "People presented evidence establishing that the bullet responsible for the victim's fatal injuries took a highly unusual route, entering the chest cavity of the victim through the forearm."

People v Narrod: trial court erred in allowing an "arson investigator to testify that he had ruled out accidental causes of the fire" because "the expert's testimony improperly invaded the jury's province." No reversal, though; the Court held the error harmless.

People v Albanna: trial court erred by refusing to charge Assault in the second degree as lesser included offense of Assault in the first degree.

People v Coleman: illegal to sentence defendant as persistent violent felony offender on Robbery 3rd conviction because "the crime of robbery in the third degree is not a violent offense."

People v Fortner & People v Semple: waiver of right to appeal does not encompass challenge to enhanced sentence where "defendant was not informed at the time of the plea that he must return for sentencing in order to avoid the imposition of an enhanced sentence."

People v Garrett: error to run definite sentence consecutive to indeterminate sentence.

People v Caito (or, note my exception, yet again): "Defendant failed to object to the court's ultimate Sandoval ruling and thus failed to preserve for our review his contention that the ruling constitutes an abuse of discretion."

I'll deal with the leftovers from the past month's Court of Appeals decisions over the next few days.