AD4: preservation not required for argument based on trial court's failure to advise defendant of postrelease supervision at time of plea

People v Simpson, __ AD3d __ [available here]

During a plea colloquy, the trial court must inform a defendant of the "direct consequences" of a plea. A term of postrelease supervision is "a direct consequence of a criminal conviction", and failure of the "trial court to advise of postrelease supervision requires reversal of the conviction." (People Catu, 4 NY3d 242, 244-245 [2005].) Thus, if a defendant is not informed on the record of postrelease supervision, the plea must be vacated. The somewhat open question has always been whether the issue needs to be preserved, i.e. does a defendant have to make a 440 motion to vacate his plea or otherwise protest the trial court's failure to include the postrelease supervision on the record before challenging the plea on appeal? The Court of Appeals decision in Catu certainly suggests that preservation is not required, unequivocally holding that "the failure of a court to advise of postrelease supervision requires reversal of conviction." (Catu, 4 NY3d at 245.) The Fourth Department expressly decided the question in the Simpson decision handed down last Friday, and confirmed the implication of Catu; from the decision:

Defendant contends that his plea was not knowingly and voluntarily entered because County Court failed to advise him of the mandatory period of postrelease supervision at the time of the plea orat the sentencing proceeding and he had no notice of the mandatory period of postrelease supervision inasmuch as the court did not impose a period of postrelease supervision at sentencing (cf. People v Vance, 27 AD3d 1015). We agree. "[T]he failure of a court to advise of postrelease supervision requires reversal of the conviction" (People v Catu, 4 NY3d 242, 245). To the extent that prior decisions of this Court would require preservation of defendant's contention (see e.g. People v Pan Zhi Feng, 15 AD3d 862, lv denied 5 NY3d 809, 812; People v Roddy, 295 AD2d 965), those decisions are no longer to be followed.

(Simpson, __ AD3d at __.)

This decision clears up what was sometimes a problem for defendants trying to raise this issue. If a defendant argued on a 440 motion to the trial court that the postrelease supervision was not on the record, the trial court could duck the issue by claiming the argument could be raised on direct appeal. If a defendant decided to raise the issue for the first time on direct appeal, the Fourth Department would sometimes hold a 440 motion was necessary to preserve the issue. It was the classic "go ask your father/go ask your mother" situation. The Simpson decision eliminates this problem and brings some clarity to a previously murky area of law.

Note, though, that the Court goes out of its way to note that the postrelease supervision was not mentioned at the plea colloquy and not imposed at sentencing. (Id.) This could be significant. I have seen cases where the postrelease supervision is not part of the plea colloquy, but is mentioned by the judge at sentencing (i.e. "I hereby sentence you to X number of years to be followed by 5 years postrelease supervision"). In that case, I could see the Fourth
Department requiring some sort of objection at sentencing to preserve the issue for review.

CA: trial court's failure to submit CPW3 reviewable, but not an abuse of discretion

People v Leon, __ NY3d __ [available here]

Rolando Leon was "involved in a dispute with another drug dealer, Hattie Dukes." (Leon, _ NY3d at __.) Apparently not one to reason with his adversaries, Leon "got a gun from under his mattress, went to where Dukes and his girlfriend were quarelling, and killed Dukes by shooting her in the face." (Id. at __.) Leon claimed self-defense; the jury believed him and acquitted Leon of murder. However, the jury did convict Leon of Criminal Possession of a Weapon (CPW) in the Second Degree. Leon had been charged by indictment with both CPW2 and CPW3; the Court notes the difference:

The People charged defendant with second-degree criminal possession on the theory that he possessed a loaded firearm "with intent to use the same unlawfully against another". The indictment also contained a charge of criminal possession of a weapon in the third degree, which is committed by possessing a loaded firearm anywhere except in one's home or place of business.

(Id. at __.)

Defense counsel asked that both CPW2 and CPW3 be submitted to the jury; the trial court refused. Since CPW3 is not a lesser-included offense of CPW2, the Court of Appeals reviewed the trial court's refusal to submit the count for an abuse of discretion. From the decision:

The problem in this case exists because criminal possession of a weapon in the third degree is not a "lesser included offense" of criminal possession of a weapon in the second degree. Rather, the two are "non-inclusory concurrent counts" (see CPL Ÿ 300.30 [3], [4]); it is possible to commit the greater offense without committing the lesser one. Second-degree criminal possession, in the form of possession of a loaded firearm with intent to use it unlawfully against another, can be committed anywhere, but possession of a loaded firearm constitutes the third-degree crime charged here only when it does not occur in the defendant's home or place of business. [...]

If the crime defendant asked to have submitted to the jury had been a lesser included offense, the court would have been required to grant his request "if there [was] a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater" (CPL 300.50 [1]; see CPL Ÿ 300.50 [2]). But because the two offenses are non-inclusory, the submission of the less serious count, even if there was evidence to support it, was not mandatory. [...] [W]hether to submit it was a matter for the trial court's discretion under CPL ß 300.40 (3) and (4). "With respect to non-inclusory concurrent counts, the court may in its discretion submit one or more or all thereof" (CPL Ÿ 300.40 [3] [a]).[...]

(Id. at __.)

The Court found the trial court did not abuse its discretion, since the idea that the defendant could have simply possessed the gun with no unlawful purpose (and therefore been guilty of CPW3 instead of CPW2) was "farfetched" and a defendant is not entitled to submit a lesser crime to the jury in hopes of jury nullification. (Id. at __.)

The Court also rejected the People's argument that "a discretionary ruling in their favor cannot be challenged," holding that the CPL section cited by the People in support of their argument was not applicable "to already discretionary rulings like the one at issue in this case." (Id. at __.)

More over the next few days on the new decisions handed down by the Fourth Department last Friday.

AD4: testimonial hearsay not admissable at persistent violent felony offender hearing

People v Williams, __ AD3d __ [available here]

Deciding an issue of first impression in New York, the Fourth Department holds in a decision handed down today that the "testimonial" hearsay rule promulgated in Crawford v Washington applies at persistent violent felony offender hearings in New York to exclude testimonial hearsay absent an opportunity to cross-examine the declarants. I have discussed this previously open question here.

At issue in Williams was "an affidavit of the Criminal History Bureau" submitted by the People at defendant's persistent violent felony offender hearing to prove up the fact of the requisite prior convictions. As described by the Court, the affidavit

referred to four fingerprint cards of "Michael Williams" that were obtained in connection with the present felony and three earlier felonies that occurred in 1977, 1980 and 1995. The director asserted in his affidavit that the fingerprint cards were compared and that "staff determined" that the fingerprints on those cards were the fingerprints of the same Michael C. Williams who was before the court at sentencing.

(Williams, __ AD3d at __.)

Although noting that the right on confrontation is a trial right that does not usually apply at sentencing, the Fourth Department nevertheless concluded that New York's recidivist sentencing statute specifically makes the right of confrontation (and by extension the rule set forth in Crawford v Washington) applicable at a persistent felony offender hearing and the fingerprint affidavit should have been excluded. From the decision:

We conclude . . . that the affidavit of the director of the Criminal History Bureau is not admissible under New York law, even in a sentencing proceeding. [...]

[T]he director's affidavit was testimonial in nature, and the "'testimonial' statements [in the adffidavit were] not previously subjected to cross-examination [and thus were] inadmissible against [this] criminal defendant". At a hearing to determine whether a defendant is a persistent felony offender, "[t]he burden of proof is upon the people and a finding that the defendant has been subjected to a predicate violent felony conviction must be based upon proof beyond a reasonable doubt by evidence admissible under the rules applicable to a trial of the issue of guilt." (CPL 400.15[7][a]; see CPL 400.16[2].) Here, the affidavit of the director would not be admissible at trial, and thus cannot constitute the requisite proof.

(Id. at __ [citations omitted].)

This is a welcome result--given the enormous stakes involved in persistent felony hearings (potentially enhancing a defendant's sentence to 25 years to life), it makes sense that defendants should enjoy the same evidentiary protections at a persistent felony offender hearing that they would at trial. The legislature necessarily intended that this should be so when it specified in section 400.15[7][a] of the CPL that the prior felonies must be proved by "evidence admissible under the rules of evidence applicable to a trial of the issue of guilt." (CPL 400.15[7][a].) Today's decision in Williams vindicates that intent.

AD4: Alford plea does not warrant point assessment for "failing to take responsibility" at SORA classification

People v Gonzalez, __ AD3d __ [available here]

Remember back in this post when I explained how the sex offender classification system in New York is points based, and if certain facts are present points are assessed? Under one of those categories, a defendant is given ten points if he does not accept responsibility for his actions. In Gonzalez, the defendant was assessed points under this category because his sex crime conviction was based on an Alford plea (where the defendant does not admit guilt or wrongdoing, but agrees to plead guilty to a crime [sometimes called a "no contest" plea]) to sex abuse in the first degree. The Fourth Department held that a defendant's Alford plea , "without more, does not warrant the board's assessment of 10 points for the purported failure of defendant to accept responsibility for his conduct [...]." (People v Gonzalez, __ AD3d at __.) The Court also noted that the points for being "armed with a dangerous instrument" (an element of sex abuse first) could not be given solely based on the guilty plea, because the Alford plea colloquy contain no admissions of facts. (See id.)

The only other decision worth noting from the Fourth Department's April term is People v Robinson, if only for the study in human persistence it provides. The facts were explained by the Court:

The first transaction involved the stabbing of a victim; the second involved tampering with a witness to the stabbing; the third involved tampering with the same witness on a different occasion and attempting to bribe him; and the fourth involved the shooting and attempted murder of the stabbing victim the day before trial on the stabbing incident was scheduled to begin.

(People v Robinson, __ AD3d at __.)

If at first you don't succeed, I guess. The legal question was a bit of a letdown; while noting that defendants generally have the right to be present "during Ventimiglia hearings or sidebar conferences", the "defendant's right to be present was not violated in this case because the only issue discussed was whether the testimony was more prejudicial than probative, and thus there was no potential for meaningful participation on defendant's part." (Id. at __.)

CA:"trial court did not abuse its discretion by calling 44 people for simultaneous voir dire questioning"

People v Serrano, __ NY3d __ [available here]

Apparently wanting to limit the number of rounds required to complete jury selection, the trial court in Serrano "called 44 individuals for simultaneous questioning, placing twelve in the jury box and the others in four front rows of the courtroom." (Serrano, __ NY3d at __.) Defense counsel objected, "stating that he would have difficulty conducting an effective voir dire since many prospective jurors sat behind him." (Id. at __.) Noting that the relevant statute only provides that "not less than twelve" prospective jurors are to be called at a time, the Court held:

Tellingly, the legislature set no upper limit for the number of prospective jurors, thus allowing judges discretion to make their courtrooms, and voir dire, more efficient. Defendant has not demonstrated that he could not conduct a voir dire by the trial court's decision to expand the jury box. During voir dire, counsel expressed no inability to observe, hear or assess the demeanor and qualifications of, or exercise challenges against, any prospective jurors. There was also no evidence of prejudice on the record at the end of voir dire. We therefore conclude that there was no abuse of discretion [...]

(Id at __.)

Nothing groundbreaking here, but lets hope trial courts don't get wind of it and start doing voir dire in one pass.

CA: Navy court martial conviction for "indecent assault" not classifiable sex offense under NY SORA

People v Kennedy, __ NY3d __ [available here]

This time last year, the Fourth Department held that a Navy court martial conviction for "indecent assault" was a classifiable offense under the section of New York's SORA law defining a SORA-eligible sex crime to include "a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred." (People v Kennedy, 20 AD3d 137, ___ [4th Dept 2005].) The Fourth Department noted that the certain Navy regulations require the Navy to notify state and local law enforcement of an offender's Navy sex crime convictions and to further provide information to the offender concerning any registration requirements. (Id. at __.) This was the equivalent of "registering" in the "jurisdiction in which the conviction occurred" for purposes of the SORA statute and thus (according to the Fourth Department) a person convicted of "indecent assault" by a Navy court martial was required to register as a sex offender in New York. See my previous post on Kennedy here.

The Court of Appeals reversed the Fourth Department on this issue in a decision handed down today. From Judge Rosenblatt's majority opinion:

County Court's determination fails because the second element of section 168-a(2)(d)(ii) requires that the conviction result in the offender's obligation to register in the "other jurisdiction,", i.e. where defendant was convicted--here, the United States Navy. The People argue that Secretary of the Navy Instruction 5800.14 obligates defendant to register with the Navy. It does not. This "Instruction" is a notification order directed to "all Ships and Stations"; by its own terms, it places responsibility to provide notification not on the offender but on the Assistant Secretary of the Navy for Manpower and Reserve Affairs, the Navy Personnel Command, the Commandant of the Marine Corps, the "Convening Authority or Convening Authority's Designee" for each court-martial, the Naval Criminal Investigative Service and the Judge Advocate General of the Navy.

The People have presented no evidence of any kind suggesting that naval sex offenders must register with the Navy or have any ongoing obligation to keep the Navy informed of their whereabouts once they leave the service. Furthermore, the People have presented no evidence that the Navy or Department of Defense maintains any registry or equivalent database; if there is no registry, there can be no registration and no registrants. Because the People have not shown that defendant ever had any obligation to register with the other jurisdiction, they have not met the second statutory requirement for registration in New York.

(People v Kennedy, __ NY3d at __.)

Judge Graffeo concurred separately "to highlight the need for legislative reconsideration." (Id. at __.)

I do not have a whole lot to say about Kennedy that I didn't say when the Fourth Department first decided the case last year (see my previous post here).

The Fourth Department will hand down decisions from its May, 2006 term this Friday. I will post on the few leftover decisions from the Court's April term between now and then.

AD4: "prior criminal history" for purposes of SORA classification = prior to date of commission of underlying sex crime

People v Milks, __ AD3d __ [available here]

In New York, all sex offenders are classified on a scale of "1" to "3", with "3" being reserved for those offenders most likely to reoffend (and thus subject to the most onerous post-release reporting requirements). The appropriate classification is determine using a point assessment system. When a sex offender is released from prison, a hearing is held and certain points are assessed for different categories. If force was used in the commission of the sex crime, a certain number of points are added; if there were multiple victims, some more points are tacked on, and so on.

One of the point categories used to classify sex offenders is based on an offender's "prior . . . criminal history" not involving sex crimes or felonies; if an offender has a prior criminal history, five extra points are added to the assessment. Since sex offenders are not classified until they get out of prison on the underlying sex offense, there can be quite a lag between the commission of the underlying sex crime and the SORA classification hearing. Plus, all sex offenders in New York were recently reclassified as a result of the lawsuit in Doe v Pataki, and some of those offenders had been out of prison for years before being reclassified for SORA. So the question for purposes of assessing points for "prior . . . criminal history" was, "prior" to what? Prior to the conviction for the underlying sex crime, or prior to the SORA classification hearing?

The Fourth Department answered that question in People v Milks, and held that the category for "prior . . . criminal history" means "prior" to the underlying sex conviction. From the decision:

With respect to risk factor nine, the SORA Risk Assessment Guidelines and Commentary (Nov. 1997) provides that a sex offender's 'concurrent or subsequent criminal history is not covered by this category, [although] it may be the basis for an upward departure if it provides reason to believe that the offender poses an increased risk to public safety'. Here, defendant was convicted of the underlying sex crime in 1991 and released from prison in 1997, but the 'criminal history' considered by the court under risk factor nine concerned acts committed in 1999 and a conviction entered in 2000. The record thus does not contain the requisite clear and convincing evidence supporting the assessment of five points under risk factor nine [...].

(Milks, __ AD3d at __.)

This issue came up a lot during the SORA reclassification hearings pursuant to Doe v Pataki, so it is nice to see the Fourth Department clarifying the issue.

AD4: defendant not deprived of fair trial by improper tactics from "derisive and sarcastic" prosecutor

People v Williams, __ AD3d __ [available here]

The prosecutor at Mr. Williams' murder trial was "derisive and sarcastic", accusing a main defense witness of smoking crack and asking that same witness to apologize "to the victim's wife for lacking 'the courage to stand up and tell [the] jury the truth.'" (Williams, __ AD3d at __ [GORSKI & GREEN, Js, dissenting).) During summation, the prosecutor personally opined on the credibility of the witnesses ("I wouldn't believe [that witness] if she told me I had a gray pinstripe suit on") and "accused defendant, the final witness to testify at trial, of tailoring his testimony to the evidence presented, and the prosecutor invited the jury to 'assume [defendant's] right. Let's--let's go to Disney World for a minute.'" (Id.)

On appeal, Mr. Williams argued that the prosecutor's misconduct deprived him of his right to a fair trial and reversal was necessary. A majority of the Fourth Department disagreed, noting "that certain of the prosecutor's comments during cross-examination of a defense witness were improper," but the misconduct was not "so egregious as to deprive defendant of a fair trial." (Williams, __ AD3d at __.) As to the misconduct during summation, the majority concluded "the prosecutor's comments . . . were fair comment on the evidence," and in any event were "alleviated" by the trial court's charge that the summations of counsel were not evidence. (Id. at __.)

Justices Gorski and Green dissented, and would have reversed. From the dissent:

Although we recognize that reversal 'is an ill-suited remedy for prosecutorial misconduct', reversal for prosecutorial misconduct is nevertheless warranted when the prosecutor's conduct is so egregious that the defendant was deprived of his or her right to a fair trial. [...]

Here, the evidence of defendant's guilt is not overwhelming and, as we previously noted, the outcome of the case was dependent solely on the credibility of the witnesses. It is our conclusion that the prosecutor's cross-examination of the defense witness as set forth herein, in conjunction with the prosecutor's improper comments on summation regarding that witness as well as the alibi witnesses, could have 'tip[ped] the scales'' against defendant.

(Williams, __ AD3d at __ [GORSKI & GREEN, Js, dissenting].)

More on the leftovers from the Fourth Department's April term over the next few days.

CA: juror's "unsettling gaze", like of detective stories and resemblance to African-American judge sufficiently race-neutral reason for peremptory

People v Wells, __ NY3d __ [available here]

During jury selection for Mr. Wells' murder trial, the prosecutor exercised a peremptory challenge against an African-American woman. Defense counsel raised a Batson challenge (for the basics of Batson, go here and scroll down). The prosecutor's response is set out in the Court's majority decision (written by Judge Graffeo):

When asked by the trial court to provide race-neutral reasons for the removal of this woman, the prosecutor stated that the prospective juror had held her hand over her mouth when answering questions, which indicated to the prosecutor that the jury 'had something to hide.' The prosecutor also claimed that the jury had 'an unsettling gaze' that was 'difficult to deal with,' and remarked that the juror reminded her of a particular New York City judge.

(Wells, __ NY3d at __.)

The trial court found the prosecutor's explanation race neutral, and denied defense counsel's Batson challenge. The Appeals affirmed; from the majority opinion:

The prosecutor's reasons for exercising the peremptory challenge focused on the juror's demeanor (placing her hand over her mouth and having an "unsettling gaze") and fondness for detective stories (which might cause her to have certain expectations about the trial evidence). Furthermore, the prosecutor's reference to a particular judge, although in 'poor taste' as noted by the Appellate Division, was not facially race-based. Because the People's burden "is met by offering any facially neutral reason for the challenge--even if that reason is ill-founded--so long as the reason does not violate equal protection", and the trial court's findings are entitled to deference, we cannot say that the prosecutor's justifications for the use of the peremptory challenge were inadequate.

(Id. at __.)

Judge G.B. Smith concurred, and would have affirmed defendant's conviction only because trial defense counsel "fail[ed] to make an objection that the reason proffered by the prosecution was not clearly race/gender-neutral [and] failed to preserve this argument for appellate review." (Id. at __ [G.B. SMITH, J., dissenting].) From the concurrence:

[A]fter a defendant makes out a prima facie case of discrimination in the selection of jurors under Batson, the prosecution's explanation for the peremptory challenge must be unequivocally race/gender-neutral and related to the particular case to be tried. [...] Because one of the prosecutor's reasons for exercising a peremptory strike against this prospective juror was not unequivocally race/gender-neutral, I disagree with the above-mentioned conclusions reached by this Court and the Appellate Division. [...]

The prosecutor's statement regarding how the prospective juror reminded her of a named Supreme Court Justice, who is also an African-American woman, and how this made the prosecutor "anxious in a sort of [] emotional way," raised issues that should have been pursued during the voir dire. Not only is this statement insulting and irrational, it is wholly ambiguous. The proffered reason, on its face, is neither clearly race/gender-neutral, nor clearly race/gender-based, i.e., there is no indication from the prosecutor's explanation as to what about the prospective juror reminded the prosecutor of the name Supreme Court Justice.

(Id.)

Since at least one of the reasons given by the prosecutor was arguably based on gender or race, the trial court should have either clarified the prosecutor's statement or upheld the Batson challenge. (Id.)

This case also dealt with the issue of duplicity as it relates to a charge of Attempted Murder. In a nutshell: defendant took potshots at two cops and was indicted on one count of Attempted Murder in the Second Degree. On appeal, defendant argued that the one count of the indictment actually alleged two crimes because there were two potential and intended victims. Since actual death is not an element of Attempted Murder 2nd, Judge Graffeo (I think correctly) held that the charge was not duplicitous because the indictment "charged a single crime based on a single incident--engaging in conduct (the shooting at Detectives Molina and Weston) that tended to effect the crime of murder while acting with the intent to cause the death of a police officer or another person." (Id at __.) Nicole at Sui Generis has her own thoughts on Wells here.

Rochester man free after 10 years in prison, DNA proves innocence

From an article in today's Rochester Democrat and Chronicle:

State Supreme Court justice Thomas Van Strydonck today freed an AIDS-stricken man who has been imprisoned a decade for a murder prosecutors now say he did not commit.

Recent DNA testing showed that Douglas Warney, 44, is innocent of the 1996 slaying of civil rights activist William Beason, prosecutors acknowledged in state Supreme Court today.

Warney was convicted in 1997 of the slaying. The case against him was largely based on a confession he gave in 1996. His lawyers contended that the admission was riddled with errors, and were the rambling of a man with an IQ of 68 who suffered from AIDS-related dementia.

The confession did contain some facts consistent with the crime scene, and defense lawyers now argue that police must have given those facts to Warney then included them in the confession. Warney did know Beason and may have been familiar with Beason's city home, according to trial testimony.

The New York Times also is running an article on Mr. Warney's case here. The Monroe County District Attorney (Michael Green) has fought the DNA testing for the last two years. The Fourth Department affirmed Mr. Warney's conviction back in 2002 (People v Warney, 249 AD2d 956 [4th Dept 2002]).

CA: trial prosecutor's flagrant Brady violation entitles People to another bite at the apple

People v Williams, __ NY3d __
[available here]

Defendant Ronald Williams was arrested for selling and possessing drugs, and prior to his trial he moved to suppress "prerecorded buy money and other evidence taken from him when he was arrested, claiming that the arrest was without probable cause." (People v Williams, __ NY3d __.) The People called only one witness at the suppression hearing--Detective Anthony Gordon. Gordon testified that he saw defendant exchange money with a man then under surveillance for dealing drugs. (Id at __.) At the time of Gordon's testimony, the prosecutor knew that Gordon was under investigation for perjury, with allegations that in another drug case Gordon "had admitted to an assistant district attorney that he did not see the defendant in that case remove a bag that contained crack from a stairway in a building in East Harlem even though he testified before a grand jury that he had." (Id. at __ [G.B. SMITH, J., dissenting.) The prosecutor did not inform the court of the perjury investigation; instead, the "People called no other witnesses, and relied on Gordon's testimony in opposing the suppression motion. The court denied the motion." (Id. at __.)

After the People rested their case at trial, defense counsel "asked that Gordon be made available as a defense witness," and it was at this point, for the first time, that the People told the Court about the perjury investigation involving Gordon. (Id at __.) Defense counsel immediately asked that the pretrial suppression motion be granted based on the failure of the prosecutor to disclose that the only witness at suppression was being investigated for perjury; the court chose a somewhat different remedy:

Instead, the court conducted a new hearing, at which it received Gordon's pre-trial hearing testimony; a stipulation that Gordon would take the Fifth Amendment if questioned about the perjury investigation or the facts underlying it; and stipulations reflecting some discrepancies between Gordon's hearing testimony and the testimony he gave as a defense witness at trail. The Court also invited the parties to call other witnesses; the People accepted the invitation and called Washington, who described essentially the same series of events that Gordon had.

(Id. at __.)

Judge R.S. Smith wrote the four Judge majority, and affirmed the defendant's conviction. Despite recognizing that the misconduct of the prosecutor was "serious" and concluding that "[t]here was no excuse for the People's failure to make the hearing judge aware of the perjury investigation of Gordon . . . at the same time that the People were asking the hearing judge to rely on Gordon's testimony to deny suppression", the majority concluded the trial court's chose of remedy was not an abuse of discretion. In so holding, the majority struck a familiar refrain:

[N]ot every significant misjudgment by the prosecution entitles the defendant to a windfall. [...] Indeed, the record strongly indicates not only that there was probable cause to arrest defendant but that, whether or not Gordon was in general a reliable witness, his account of the events leading to the arrest was largely true. [...] The Brady rule exists to prevent miscarriages of justice; the remedy defendant seeks here might well have created one.

(Id. at __.)

Or stated another way: because there was probable cause for defendant's arrest (and overwhelming evidence of his guilt), the defendant should not be entitled to any relief that is going to result in the suppression of the evidence found pursuant to the arrest, even where deliberate prosecutorial misconduct is involved. He did it, after all.

Judge G.B. Smith wrote for the three dissenting Judges:

At a Mapp hearing to suppress physical evidence, the prosecution permitted a police officer to testify without revealing that the officer was under investigation for perjury. Moreover, the testimony of that officer before the grand jury was false and his truthful testimony would not have established probable cause for an arrest. The failure of the prosecution to reveal Brady material should have led to the suppression of evidence taken from defendant at the time of his arrest. No reopened or new suppression hearing should have been permitted. [...]

Suppression is warranted because of the untimely disclosure alone, regardless of the offer and acceptance of a re-opened suppression hearing. The prejudice to defendant could not be undone, especially give that Sergeant Washington had already testified at trial to the events of April 12, 2001, and a re-opened suppression hearing would merely give him the opportunity to reiterate his previous testimony. [...]

Previously, this court has denied the prosecution a second bite at the apple when all the evidence was available at the time of the first hearing, and defendant would be prejudiced if the prosecution were allowed a second attempt at trial or a pre-trial proceeding. The prosecution is afforded only one 'full and fair opportunity' to present the evidence against defendant. Thus, if defendant is allowed nothing more than a de novo suppression hearing, the prosecution is given a second bite at the apple, which only further prejudices the defendant and rewards the prosecution for its failure to disclose material information.

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

The majority and dissent highlight two different notions of "justice" found in criminal law. The majority's decision focuses the narrow "justice" of the specific case; did the defendant do it? If yes, then justice is served by a result that protects the guilty verdict. The dissent's decision, on the other hand, is concerned with systemic justice--was the system fair? If not, then the outcome for the individual defendant does not matter, because it was not the product of a just system.

The Court of Appeals seems to be tracking towards the majority's view--a very results-oriented, individual "justice" approach, where the factual guilt of the defendant is the overwhelming consideration and almost any error along the way will be excused. This can only be bad for the systemic integrity of the criminal justice system, because any number of errors and procedural injustices are excused (and therefore encouraged to repeat) to preserve an end-result (guilt) that the reviewing Judges believe appropriate.

The nice thing about the dissent's approach is that, by insisting on procedural integrity, most of the time individual justice will be done, too. The occasional case like Williams--where if the dissenters had carried the day a drug dealer would walk free to reinforce the integrity of the system by punishing the prosecution for its deliberate misconduct--is the price of having a system that takes its procedural fairness seriously. This seems to be a price appellate courts in this state are less and less willing to pay.

CA: trial court can tell a jury to disregard "eyewitness identification" expert witness and not risk reversal

People v Drake, __ NY3d __ [available here]

Earlier this week, the Court handed down two decisions dealing with issues surrounding witnesses who testify as experts on eyewitness identification. I previously posted about People v Young here. The other decision is People v Drake. Unlike in Young, the trial court in Drake actually allowed the "testimony of . . . an expert in the reliability of eyewitness identification testimony." (Drake, __ NY3d at __.) The issue in Drake was not the propriety of allowing the testimony--the Court noted that "courts are encouraged" to admit such testimony "in appropriate cases"--but instead whether a rather bizarre jury instruction given over objection required reversal. The majority's decision (written by Chief Judge Kaye) describes the charge: "At the conclusion of the case, the court, over defendant's objection, charged the jury that the testimony [of the expert] 'may not be used to discredit or accredit the reliability of eyewitness testimony in general or in this case.'" (Id. at __.) Essentially, after allowing the expert to testify, the trial court instructed the jury to ignore the testimony. The majority concedes this was error:

Read in isolation, the sentence instructing that [the expert's] testimony could not be used 'to discredit or accredit the reliability of eyewitness testimony in general or in this case' was incorrect. Indeed, it might be taken to mean that the expert testimony the court had admitted could not in the end by considered for any purpose at all. [...]

Where there has been expert testimony on the reliability of eyewitness identifications, jurors must, if they choose to accept that testimony, be permitted to apply the identified psychological factors to the facts of the case before them in deciding whether they are convinced beyond a reasonable doubt as to the accuracy of the proffered identifications.

(Id. at __.)

Rather than reverse, however, the majority takes a step back and concludes "the charge as a whole did not communicate to the jurors that they should disregard the testimony" of the expert. (Id. at __.)

Judge G.B. Smith dissented; from his opinion:

In this case where two out of the eleven eyewitnesses identified defendant as the assailant and where three eyewitnesses unequivocally stated that defendant was not the attacker, the trial court's charge that the jury could not use the testimony of an eyewitness identification expert to reach its verdict was both an error of law and prejudicial. [...]

[This Court is] concerned with whether the correct instructions predominated. In this matter, they did not. Although the trial judge stated, prior to the incorrect instruction, that an expert's testimony can be weighed for credibility like any other witness, the incorrect statement regarding accrediting and discrediting other witnesses erased and outweighed everything that came before.

Not a great week for defendants. In fact, two more decisions were handed down by the Appeals today, and both set pro-prosecution precedent (one dealing with a Batson violation, one with Brady). More on those cases and the rest of the noteworthy decisions from the Fourth Department's April term over the next few days.

CA: trial court's refusal to allow defense expert witness to testify about problems with eyewitness testimony not an abuse of discretion

People v Young, __ NY3d __ [available here]

In one of two decisions handed down today dealing with issues concerning expert testimony offered on the issue of eyewitness identification, Judge R.S. Smith writes for the majority of the Court of Appeals in People v Young, and the Court holds it was not an abuse of discretion for a trial court to refuse "to allow an expert to testify about factors that affect the reliability of eyewitness identifications." (Young, __ NY3d at __.) From Judge R.S. Smith's opinion:

The harder question is whether the trial court abused its discretion in excluding [the expert's] testimony. In People v Lee (96 NY2d 157 [2001]) (decided after the trial court's ruling in this case), we held that the decision to admit or exclude evidence of this sort is a discretionary one. We said that although 'jurors may be familiar from their own experience with factors relevant to the reliability of eyewitness observation and identification, it cannot be said that psychological studies regarding the accuracy of an identification are within the ken of the typical juror'. Thus, there are cases in which testimony like [the expert's] may be admitted, in the exercise of the court's discretion; and indeed, there are cases in which it would be an abuse of discretion to exclude such evidence. This case is undoubtedly in the former category--the trial court here might well have admitted [the expert's] testimony--but we conclude that it is not in the latter; the trial court's ruling was within the bounds of its discretion.

(Id>. at __.)

The Court went on to conclude that, while the expert's testimony would "have been valuable to a juror in this case in assessing [the eyewitness's] testimony", the trial court properly excluded the evidence because the eyewitness's testimony was corroborated by other evidence of the defendant's guilt. Again from the majority's decision:

[I]f this case turned entirely on an uncorroborated eyewitness identification, it might well have been an abuse of discretion to deny the jury the benefit of [the expert's] opinions. The corroborating evidence, however, significantly diminishes the importance of the proffered expert testimony in this case [...]. Here, stolen property was found in possession of two of defendant's acquaintances; neither of them could have been the robber, since both were women; and one of them pointed to defendant as the person from whom she got the property. It was reasonable, under the circumstances, for the trial court to conclude that [the eyewitnesses] identification was quite unlikely to be mistaken, and that [the expert's] testimony would be an unnecessary distraction for the jury.

(Id. at __.)

I can buy this reasoning for a "harmless error" type analysis--if the proof of defendant's guilt is overwhelming, then any error in admitting the proposed expert testimony could be dismissed as harmless. But it seems odd that the admissibility of the evidence should turn on the strength of the People's proof. Indeed, the United States Supreme Court just handed down a decision finding fault with this type of reasoning as violating a defendant's right to present a defense. (See Holmes v South Carolina, 2006 WL 1131853 [available here] ["The point is that, by evaluating the strength of only one party's evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt. [...] It follows that the rule applied in this case . . . violates a criminal defendant's right to have 'a meaningful opportunity to present a complete defense.'"].) It is hard to square today's decision from the Court of Appeals with Holmes, because the Young decision seems to make the admissibility of otherwise relevant defense testimony dependent on the trial court's assessment of the strength of the People's case, and under Holmes this violates defendant's right to present a defense.

The Court's decision today in Young is a troubling continuation of the reasoning first set forth in the Court of Appeal's recent decision in People v Wardlaw, where the Court held the denial of a defendant's right to counsel at a suppression hearing could be dismissed as harmless because the proof of defendant's guilt was overwhelming and the jury's verdict would have been no different had the suppression hearing been successful (see my previous post on Wardlaw here). The upshot of this type of reasoning is that really, really, really guilty defendants have less protections because . . . well, they are so damn guilty that no mistakes in the process could possibly effect the outcome. This type of reasoning can't possibly be good for the integrity of the criminal justice system.

Judge G.B. Smith dissented in Young, noting "The majority's ruling misses the opportunity to hold that here, as a matter of law, where eyewitness identification is attenuated and possibly tainted, and corroborating evidence is weak, courts should allow expert testimony concerning eyewitness identification." (Young, __ NY3d at __.)

The Court of Appeals also handed down a related decision today, also dealing with issues concerning expert testimony related to eyewitness identification. More on that decision tomorrow.

AD4: insufficient foundation for expert junky testimony

People v Freeman, __ AD3d __ [available here]

The defendant in People v Freeman was charged with possessing 18 baggies of crack with the intent to sell. At trial, the People offered the testimony of the arresting sergeant, who opined that the amount of drugs possessed and the manner of packaging was inconsistent with personal use (and therefore the drugs must have been possessed with the intent to sell). (Freeman, __ AD3d at __.) To counter this testimony, the defendant tried to call a reformed drug addict, who prior to becoming a drug counselor was an active crack addict for 15 years, who would opine that drug users often buy in bulk and the possession of 18 nickel bags of crack can be consistent with personal use. Prior to allowing the testimony, the trial court asked for an offer of proof; here's what defense counsel placed on the record:

[The witness], to my understanding and knowledge is a reformed drug addict. He has been clean now for approximately six years to my understanding. Before that he was addicted to cocaine and other drugs for approximately 15 years; pretty much has had a general knowledge as to drug trafficking out on the street; how drugs were packaged, how drugs were purchased, that people on or with a cocaine addiction would purchase in quantity for their own personal use as opposed to because they wanted to sell, and given [the sergeant] being allowed to offer his opinion in support of the 1st count of the indictment, it would basically be our intention to have [the proposed witness] offset that with his own personal knowledge of drug trafficking here in the Rochester area.

(Respondent's brief at 6.)

The trial court did not allow the defense to call the reformed drug addict. As an aside, drug addicts are allowed to give expert opinion testimony in drug cases in New York; just this packet, the Fourth Department handed down a decision reaffirming that, "'In situations where the illegal substance is not available for analysis, drug users who can demonstrate a knowledge of the narcotic are competent to testify. It is for the jury to determine the weight to be given the testimony.'" (Fulton, __ AD3d at __ [quoting People v Christopher, 161 AD2d 896, 897].)

On appeal, the Fourth Department did not rule out the possibility that drug addicts could give opinion testimony on the "personal use" question in drug cases; however, the Court did find defense counsel's offer of proof lacking in Freeman. From the decision:

We conclude that defendant failed to present a sufficient foundation for the testimony of that witness with respect to the knowledge, training and reliability of the witness concerning the issues of personal use and packaging for sale. Defendant failed to provide any information with respect to the extent of the proposed witness's drug counseling and, indeed, defense counsel conceded that the proposed witness had no training or eduction in the area of drug counseling. In addition, defendant failed to present a sufficient foundation establishing that the proposed witness was "qualified to speak from actual experience, from observation or from study."

(Id. at __.)

It is true that defense counsel's offer of proof in this case painted in broad strokes--but if being a crack addict for 15 years does not give you the "actual experience" to opine as to whether a certain amount of cocaine is consistent with personal use or not, what does? And how detailed does a defendant have to get? And at what point does requiring a detailed offer of proof deprive a defendant of his constitutional right to present evidence in his defense?

CA: defendant does not have to admit "possessing" drugs to establish standing to challenge police search

People v Burton, __ NY3d __ [available here]

Mr. Burton was walking down the street when he was stopped and searched by a police officer. One bag of crack was found in Mr. Burton's pocket, and he was arrested. Mr. Burton's attorney made a motion to suppress the drugs, alleging "that defendant was walking alone on the street when he was stopped and searched 'for no apparent lawful reason'", and that the arresting officer noted on the felony complaint that one bag of crack was "recovered . . . from the defendant's person." (Burton, __ NY3d at __.) The People at trial opposed, "arguing that defendant lacked standing to ask for suppression because he did not expressly acknowledge that he had, in fact, personally possessed the cocaine that was recovered from his person, and his reliance on the police officer's allegation in the felony complaint was inadequate to confer standing." (Id..) The trial court agreed, and denied the motion without a hearing. (Id..)

In a decision handed down today, the Court of Appeals held "that the statements in defendant's motion papers that he was stopped and searched by the police without legal justification, and that the police claimed to have discovered drugs on defendant during the search, were sufficient to satisfy the factual allegation requirement of CPL 710.60[1] and thereby establish standing to seek suppression." (People v Burton, __ NY3d at __.) Judge Graffeo wrote for the unanimous Court. The Court made clear that evidence generated by law enforcement could be relied on by a defendant to establish standing to challenge a search:

[W]e have repeatedly observed that, in assessing the adequacy of a motion to suppress tangible evidence, a defendant is entitled to rely on the People's proof to demonstrate standing. The necessary allegations of fact may be gleaned in part from statements made by law enforcement officials in an accusatory instrument or from testimonial statements elicited by the prosecution. Our decisions further point out that witnesses for the People--including police officers--are among '[]other person[s]' (CPL 710.60[1]) whose factual assertions may be used in a motion to suppress. Based on this case law, defendant could meet his evidentiary burden by supplementing the averments made in his motion to dismiss with the police officer's statement that the drugs were recovered from defendant's person. Defendant was therefore not required to personally admit possession of the contraband in order to comply with the factual pleading requirement of 710.60.

(Id. at __.)

The Court further distinguished a "buy and bust" scenario from "a search based on the furtive behavior of a person". Where a defendant is arrested for buying drugs from an undercover officer, the defendant has to actually "'deny participating in the transaction or suggest some other grounds for suppression" to obtain a hearing. (Id..) But as the Court notes,

where probable cause for a search is premised on the furtive behavior of a person, we have observed that an accused can 'raise a factual issue simply by alleging that he or she was standing on the street doing nothing wrong when the police approached and searched' and discovered contraband in the process. A claim of this nature questions whether police action was legally authorized at its inception, and in this situation a hearing is required to determine, as a factual matter, whether the defendant engaged in suspicious or unlawful conduct giving rise to probable cause justifying a search.

(Id..)

Not a particularly groundbreaking decision, but a nice clarification of the factual assertions necessary to obtain a probable cause hearing in New York.

AD4: trial court's failure to grant defendant short adjournment to produce alibi witness is reversible error

The Fourth Department handed down decisions for it's April term today, with some interesting criminal decisions in the mix. Starting the review of the April packet is . . .

People v Walker, __ AD3d __ [available here]

The trial court in Walker refused to grant the defendant a short adjournment to produce an alibi witness when his intended alibi witness became unavailable at the last minute due to a serious illness that required hospitalization. The Fourth Department, after noting that the "'more liberal policy in favor of granting a short adjournment . . . when the delay is requested in order to insure a fundamental right', e.g., the request for an adjournment to produce an alibi witness", held "that the court abused its discretion in denying his request for a 45-minute adjournment." (Walker, __ AD3d at __.) From the decision:

[T]here is no evidence of dilatory conduct on the part of defendant. The record establishes that the alibi witness subpoenaed by defendant was seriously ill and that defense counsel requested the adjournment in order to present the alibi testimony of that witness's son. In addition, there is no indication in the record that the proposed alibi testimony would be cumulative to other evidence presented inasmuch as no other alibi testimony had been presented concerning defendant's precise whereabouts at the time of the shooting. Because the proposed testimony of the alibi witness was pivotal with respect to the issue of defendant's guilt, we conclude that defendant was denied the fundamental right to defend himself.

(Id. at __.)

Justices Kehoe and Hayes dissented, arguing that "defendant utterly failed in our view to meet his burden of establishing his entitlement to an adjournment" in part because "[d]efense counsel made no offer of proof demonstrating that the son's proposed testimony would be 'material and favorable to the defense.'" (Id. at __.)

AD4: Leftovers (March, 2006 term)

New decisions tomorrow, so it is time to clean up the last few cases of significance handed down by the Fourth Department last term.

People v Long, __ AD3d __ [available here]

During a traffic stop, the stopping officer "placed defendant in the back of the patrol car" and then "asked him whether there was anything in the vehicle he should know about" prior to giving Miranda warnings. (Long, __ AD3d at __.) Clearly not familiar with the "anything you say will be used against you" part of Miranda, defendant told the officer there was a gun in the car. (Id. at __.) The trial court suppressed the un-Mirandized statement, and the Fourth Department affirmed, holding:

Contrary to the contention of the People, the record supports Supreme Court's determination that defendant was in police custody when the officer asked defendant the question concerning the contents of his vehicle. 'In deciding whether a defendant was in custody at the time a statement was given, the test is not what the subjective beliefs of the defendant were, but instead what a reasonable person, innocent of any crime, would have thought if they were in defendant's position.' The officer testified that defendant was placed in the back of the patrol car, albeit without handcuffs, and could not exit the patrol car. He further testified that defendant was not free to leave and that a traffic stop for the purpose of issuing a citation is 'technically an arrest.' We thus conclude that the court properly suppressed defendant's initial statement to the officer concerning the gun in the driver's door on the ground that defendant was in custody when he made the statement and had neither received nor waived his Miranda rights, and we further conclude that the court properly suppressed defendant's subsequent statements as the direct consequence of that initial statement.

(Id. at __.)

Just a friendly reminder--you get no bonus points with the police by telling them where the contraband is hidden.

People v Boyd, __ AD3d __ [available here]

In this decision, AD4 holds "that County Court erred in admitting evidence that dynamite was found in the trunk of defendant's vehicle. The potential for prejudice with respect to that evidence greatly outweighed any probative value." (Boyd, __ AD3d at __.) Fine so far, but then the Court goes on to dismiss the error as harmless. (Boyd, __ AD3d at __.) So the evidence wrongly admitted below was unbelievably prejudicial . . . but could not have had an effect on the jury's verdict? Even accounting for different legal standards (probative/prejudicial balancing for admission of the evidence versus whether the error had an effect on the verdict), this seems inconsistent.

People v Hibbard, __ AD3d __ [available here]

At sentencing, the lower court "stated on the record that it was increasing defendant's sentence based upon political remarks made by defendant." (Hibbard, __ AD3d at __.) Sadly, the decision does not set forth the substance of the remarks. The Fourth Department exercised its interest of justice jurisdiction to reach the issue and vacate the sentence, noting that "a 'sentence based to any degree on activity or beliefs protected by the first amendment is constitutionally invalid'." (Id. at __, citing US v Lemon, 723 F2d 922, 938.)

AD4: Cocaine secreted in zippered compartment of shaving bag not in "plain view"

People v James, __ NYS2d __ [available here]

During a warrant execution, a police officer observed "glassine baggies protruding from an open compartment of a shaving bag on a dresser." (James, __ NYS2d at __.) The shaving bag also had a zippered compartment that the officer proceeded to open, finding a "large quantity of crack cocaine". (Id. at __.) The trial court refused to suppress the cocaine, reasoning that the glassine baggies sticking out of the bag were in plain view and therefore the police were justified in inferring "'that the closed portion of the bag was a storage area for narcotics or more packaging material.'" (Id. at __.)

The Fourth Department reversed and stated the (seemingly) obvious: "the cocaine secreted in the zippered compartment of the shaving bag was not in plain view." (James, __ NYS2d at __.) Since the police deliberately unzipped the bag looking for contraband, "the discovery of the cocaine by unzipping the closed compartment was not 'inadvertent rather than anticipated'" and the drugs should have been suppressed. (Id. at __.) This is a common sense decision--while the "plain view" doctrine justifies seizing contraband the police are actually capable of seeing, it cannot be extended to justify further searching in hopes of finding items that are not in plain view (but are in proximity to visible contraband).

AD4: SORA "case summary" standing alone sufficient to establish facts relied on for classification

The Fourth Department is handing down decisions from its April term this Friday. Between now and then, I'll be posting on some leftovers from the Court's March term.

People v McDaniel, 810 NYS2d 723 [available here]

The Court in McDaniel upheld the defendant's designation as a level 3 sex offender based in part on facts contained in a "case summary". These summaries are generated by the prison facility and contain information about the crime of conviction. The facts of the crime are most often set forth in a very conclusory manner, and it is my understanding that the case summaries are used at a facility as a kind of overview for an inmate's file. The case summaries are not signed and do not indicate who the author is, making them a particularly smelly kind of hearsay (because even if a defendant wanted to, there is no way to cross-examine the "declarant" (i.e. the person who wrote the case summary in the first place) about the accuracy of the facts contained in the summary).

Nevertheless, the Fourth Department in McDaniel held that the number of defendant's victims (one of the point assessment categories for a SORA classification) was sufficiently established by bare reliance on the case summary. (See McDaniel, 810 NYS2d at 723 ["Contrary to defendant's further contention, 'the facts contained in the case summary, which were not in dispute and upon which the court relied, provided the required evidentiary support' to establish the number of victims."].) This is a disappointing result, but not necessarily a surprising one; the safeguards at SORA classification hearings are not on par with a criminal proceeding, and sex offenders are not exactly the most sympathetic bunch. Still and all, these case summaries are a fairly flimsy reed upon which to balance the weight of a level 3 SORA classification.

CA: harmless error analysis applicable to denial of right to counsel at suppression hearing

People v Wardlaw, __ NY3d __ [available here]

The Court of Appeals (in a decision by R.S. Smith)has affirmed the Fourth Department on another important issue of first impression today, holding in People v Wardlaw that the deprivation of right to counsel at a suppression hearing is subject to harmless error analysis. I have posted on the Fourth Department's decision in this case here,here, and here. The Court of Appeals' majority opinion adopts the reasoning of the Fourth Department in whole--even if the statements challenged at the suppression hearing had been suppressed, the remaining proof of defendant's guilt was overwhelming and therefore the outcome could not have been different if Wardlaw had a lawyer at his suppression hearing. (See Wardlaw, __ NY3d at __ ["it is clear beyond reasonable doubt that any new trial would have the same result, even if defendant's statements were excluded from evidence . . .[t]hus a new hearing would serve no purpose."].) Therefore, the error can be dismissed as harmless.

The dissenters argue that the most palpably guilty defendants are the ones who most need the assistance of an attorney, and the denial of such assistance should not be dismissed later as harmless because a defendant is very, very guilty. From Judge Ciparick's dissent (joined by Chief Judge Kaye and Judge G.B. Smith):

It is a sad day when the Court of Appeals deviates from its heretofore robust protection of the right to counsel as conceived under the State's Constitution solely because of the proof of guilt and the heinousness of the crimes alleged. Contrary to our jurisprudence, the majority has focused on indicia of "overwhelming" evidence of guilt in order to apply harmless error when a defendant was deprived of the right to counsel at a critical stage of the proceeding--a pre-trial suppression hearing.

A defendant has a constitutionally protected right to counsel at a pre-trial suppression hearing equal to that at trial. Deprivation of that right was never before today subject to a harmless error analysis in this State. Indeed, this Court's long-established jurisprudence has repeatedly recognized the fundamental importance of legal representation to protect the balance between an accused and the prosecutorial power of the State. Were the defendant deprived of counsel at trial itself, however overwhelming the proof of guilt--DNA evidence, confession, eyewitnesses--surely no one would argue that he was not entitled to a new trial. This is not because a new trial is necessary to establish guilt, but rather because the courts must protect the fairness and integrity of our criminal justice system.

(Id at __.)

The majority answers the dissenters by noting "defendants statements, though not confessions, are significant evidence of his guilt; but that guilt was proved conclusively anyway by the DNA. When a man's semen is found in a nine-year-old girl's vagina, the evidence that he raped her is, as the Appellate Division said, 'truly overwhelming.'" (Id at __.) True enough; but is it not also true that the man whose sperm is found in the nine-year-old's vagina the man who most needs an attorney?