CA: no Wharton exception to 710.30 notice where "initial police viewing . . . was fleeting,unreliable and susceptible of misidentification"

People v Boyer, __ NY3d __, 2006 N.Y. Slip Op. 02290 [2006] [available here]

In the other criminal decision of note from the Court of Appeals this week, Hon. Chief Judge Kaye writes for the majority and refuses to exempt a showup identification procedure from the notice requirements of CPL 710.30 where the showup involved a police officer eyewitness and "the initial encounter . . .[was] at night, while defendant [was] stopped for a few seconds on a fire escape some 40-to-50 feet above the ground"; based on that brief encounter, the Court could "not conclude that the circumstances of [the officer's] initial viewing were such that, as a matter of law, the subsequent identification could not have been the product or undue suggestiveness." (People v Boyer, __ NY3d at __.)

The People in this case were asking the Court of Appeals to extend the Court's prior decision in People v Wharton (74 NY2d 921 [1989]), where the Court ruled that the identification of defendant by a trained undercover officer within moments of participating in a drug sale with defendant was not subject to the notice requirements of CPL 710.30 because there was virtually no chance of the identification being the product of undue suggestion. (See Wharton, 74 NY2d at 922-923.) The Court in Boyer refused to extend Wharton, instead clarifying that Wharton only applies "when the identifying officer's observation of the defendant is so clear that the identification could not be mistaken." (Boyer, __ NY3d at __.) As the Court explains, "the quality of the officer's initial viewing must be a critical factor in any Wharton-type analysis", and where the initial opportunity to observe is sketchy, the People must put the defense on notice of the identification procedure under 710.30 (and thereby give the defense an opportunity to request a Wade hearing to challenge the identification procedure). (Id. at __.)

Hon. Judge R.S. Smith dissented because (in his words) "I think that requiring a Wade hearing in cases like this one, where the chance that the hearing will lead to the suppression of evidence is vanishingly small, is a waste of time and puts an unjustified burden on the criminal justice system." (Id. at __.) Essentially, Judge Smith argues that, while police officers may conduct identification procedures in an unduly suggestive manner when dealing with civilians, in no case would an police officer due anything unduly suggestive when the showup identification procedure involved a fellow officer as the eyewitness. According to Judge Smith, "[t]he difference between police officers and civilians is significant here. An officer is much less likely than a civilian to be swayed by the assumption that a suspect who is in police custody must be guilty." (Id. at __.)

Nicole at Sui Generis has an extensive post on this decision here.

CA: "Affidavit of Regularity/Proof of Mailing" testimonial hearsay

People v Pacer, __ NY3d __ [available here]

The Court of Appeals handed down a decision today (written by Judge Rosenblatt) affirming the Fourth Department's application of Crawford v Washington to exclude as testimonial hearsay a simple DMV "affidavit of regularity/proof of mailing". I posted on the Fourth Department's decision in Pacer here. Given that the affidavit was "admittedly prepared at the People's request for use at trial", and that the affidavit was the only proof that defendant had been provided notice of his license suspension, Judge Rosenblatt found the affidavit inadmissible under Crawford; from the decision:

Faced with evidence of this type, defendants have no means of challenging the People's proof on a critical element. Without an opportunity to cross-examine the affiant, defendant had no chance to inquire about the basis for the affiant's 'information and belief' that the Department mailed the notice. Defendant had no chance to inquire whether the Department sometimes makes mistakes in mailing revocation notices; whether there were other drivers in the Department's database with the same name as defendant to whom the Department might have mailed the notice; to what address the affiant believed, based on her information, the Department had mailed the notice; whether the notice might have been returned undelivered; or whether the affiant could testify reliably about procedures as they existed 16 years in the past. In short, the lack of a live witness to confront eliminated defendant's opportunity to contest a decisive piece of evidence against him. This is exactly the evil the Confrontation Clause was designed to prevent.

(Id. at __.)

One other interesting note: Judge Rosenblatt notes in a footnote that "Defendant here has neither preserved nor argued any claim based on our State Constitution." (Id. at __.) Whether this is a subtle hint to criminal defense lawyers to start raising Crawford-like arguments based on the state constitution's confrontation clause is anyone's guess, although the only reason the issue would be reached under the state constitution is if the Court of Appeals was willing to provide more protections under the state confrontation clause than SCOTUS has done with Crawford under the federal constitution. Reaching the issue under the state constitution would allow the Court of Appeals to give "testimonial" a broader definition than the Supreme Court, and would also insulate New York somewhat from any subsequent Supreme Court cases that restrict the definition of testimonial (and thus the reach of Crawford).

AD 4: Sexual Abuse in the First Degree not inclusory concurrent count of Sodomy in the First Degree

People v McLaurin, __ AD3d __ [available here]

In a bit of housekeeping, the Fourth Department holds in People v McLaurin that "sexual abuse in the first degree is not a lesser included offense of sodomy in the first degree . . . [r]ather, counts charging sexual abuse in the first degree and sodomy in the first degree are noninclusory concurrent counts 'and thus both charges and convictions can stand'." (People v McLaurin, __ AD3d at __.) The Court is not breaking any new ground here--the Court of Appeals confronted this issue over 15 years ago, and held in People v Ford that, since sexual abuse requires a showing of sexual contact for the purposes of sexual gratification, and it "is possible to commit the crime of sodomy without the actor having as a purpose the gratification of either party's sexual desire", the jury "could properly convict the defendant of both crimes based on the same conduct." (People v Ford, 76 NY2d 868, 870 [1990].)

So far, nothing notable--just the Fourth Department following clear Court of Appeals precedent. What makes this case interesting is the fact that as recently as 2001, and in spite of the clear Court of Appeals precedent in Ford, the Fourth Department dismissed a count of sexual abuse in the first degree as a lesser included offense of sodomy in the first degree because "[t]here was no evidence of separate acts of sexual abuse independent of the acts of sodomy." (People v Rising, 289 AD2d 1069, 1070 [4th Dept 2001].) Thus the Court in McLaurin had to clarify that, "[t]o the extent that our prior decisions in People v Rising and People v Morello hold otherwise, they are no longer to be followed. (McLaurin, __ AD3d at __.)

AD4: no right to confront "history and character" witnesses at persistent felony offender hearing

People v Redden, __ AD3 __ [4th Dept 2006] [available here]

In another decision touching on the application of Crawford v Washington, the Fourth Department holds in People v Redden that "hearsay evidence concerning defendant's uncharged criminal conduct was properly considered by the court in determining defendant's status as a persistent felony offender" because CPL 400.20[5] specifically allows "any relevant evidence, not legally privileged, regardless of admissibility under the exclusionary rules of evidence" to be considered at a PFO hearing. (Redden, __ AD3d at __; CPL 400.20[5].) Moreover, the Court essentially held that the Sixth Amendment confrontation rights apply only at trial, and a defendant "has no Sixth Amendment right to confront witnesses with respect to his history and character" at a PFO hearing. (Id. at __.)

Note that it is still an open question as to whether a defendant's Confrontation rights apply at that portion of a persistent felony offender hearing where the prosecutor has to establish the fact of a defendant's prior convictions. In that case, section 400.15[7][a] of the CPL sets forth the "[m]anner of conducting [the] hearing," and requires the People to prove the fact of a defendant's prior convictions beyond a reasonable doubt "by evidence admissible under the rules applicable to a trial of the issue of guilt." (CPL 400.15[7][a].) Since the Supreme Court's holding in Crawford v Washington is now a "rule applicable to a trial of the issue of guilt" in New York, it would seem that Crawford would apply to exclude testimonial hearsay unless the declarant is available for cross-examination or has previously been subject to cross.

And on a practical note: if you have a "loaded and operable .45 caliber semiautomatic weapon" in the backseat, it is probably not a good idea to drive your "substantially damaged vehicle in reverse and in the wrong direction on a one-way street". (Redden, __ AD3d at __.)

Speaking of Crawford, the United States Supreme Court heard arguments yesterday in two significant cases that should help clarify what statements are "testimonial" and thus fall within the holding of Crawford. Specifically, one case deals with the admission of 911 tapes, and the other with the admission of statements of the victim contained in a police report. The New York Times has an article on the arguments here. Professor Friedman at the Confrontation Blog argued on behalf of the defendant in the "police reports" case, and he has posted links to the Reply briefs filed in both cases (arguing that 911 calls and police reports containing victim statements are testimonial hearsay).

AD4: defendant denied fair trial where parole status put before jury and trial court refused to suppress pre-Miranda statements made during transport

People v Ramos, __ AD3d __ [4th Dept 2006] [available here]

In a rare substantive reversal based (at least in part) on an exercise of its "interest of justice" jurisdiction, the Fourth Department held in People v Ramos that a defendant was denied a fair trial "because Supreme Court allowed the People to elicit testimony indicating that defendant was on parole at the time of his arrest and because the court failed to suppress prearrest statements that he made while being transported in a police vehicle." (People v Ramos, __ AD3d at __.) The trial court's first error--allowing the prosecutor to put defendant's parole status before the jury--illustrates the useful point that a door is rarely open as widely as a trial court perceives it to be. In Ramos, the defendant's parole officer was also his arresting officer, and thus testified at trial. The defendant's mother testified in a manner that contradicted certain parts of the parole/arresting officer's testimony, and the trial court "ruled, sua sponte, that the testimony of defendant's mother opened the door to the introduction of testimony concerning defendant's status as a parolee." (Id. at __.) Exercising typical restraint, "the prosecutor referred on at least 10 occasions to the status of defendant as a parolee and the fact that the arresting officer was his parole officer." (Id. at __.) The Fourth Department held that the mother's testimony "in no way misled the jury with respect to the prior criminal history or current status of defendant" and therefore the door was not opened and it was a mistake for the trial court to allow the defendant's status as a parolee before the jury. (Id. at __.)

The Court then went on to reach defendant's unpreserved suppression issue in the interest of justice, holding defendant was in custody for Miranda purposes when "handcuffed and seated in the back of the police vehicle" and that the officer engaged in "interrogation" when he "confronted defendant with the fact that a gun had been found in a plastic bag in [defendant's] bedroom [...]." (Id. at __.) Since the custodial interrogation was not preceded by Miranda warnings, suppression was required. A nice decision by the Court, all the more so because of the Court's willingness to reach clear error in the interest of justice.

AD4: What not to say at sentencing (attorney edition)

People v Lawrence, __ AD3d __ [available here]

This is not what you want your attorney to say on your behalf at sentencing:

Yes. [Defendant], pursuant to a deal we made, was supposed to get a determinant [sic] sentence of four years but [he] failed to contact me, failed to appear in court and has failed to do any other of the responsibilities that you outlined for him back when we were in court back in March. And I have explained that to him several times. I could not reach [defendant]. And in my experience with [defendant], he has showed up in my office intoxicated, threatening me and my secretary. That is all I have, your Honor.

(People v Lawrence, __ AD3d at __.)

The Fourth Department vacated the sentence based on ineffective assistance of counsel at sentencing, noting that defense counsel "'essentially[] became a witness against [defendant] and took a position adverse to him,' thereby denying him effective assistance of counsel." (Id. at __.) With defense attorneys like this, who needs prosecutors?

AD4: Autopsy report "does not for the most part constitute testimonial evidence"

People v Bryant, __ AD3d __ [available here]

In a decision handed down today, the Fourth Department has ruled that an autopsy report is only to be considered "testimonial" hearsay to the extent the report contains "the opinions of the pathologist." (People v Bryant, __ AD3d __ [4th Dept 2006].) Otherwise, according to the Court, an "autopsy report . . .does not for the most part constitute testimonial evidence." (Id. at __.) I have previously posted on this case here. I cannot disagree strongly enough with the Fourth Department's analysis. There is simply no rational basis for distinguishing between the factual findings of a pathologist contained in an autopsy report and the pathologist's ultimate opinion concerning the cause and manner of death. In a murder case, the entire autopsy report--both the factual findings and the opinion content--is prepared with the reasonable expectation that the report will be used prosecutorially and will be available for use at a later trial. At a murder trial, the factual findings of an autopsy report--i.e. information about the type and extent of a victim's injuries--are relied on by the testifying medical examiner as a basis for any opinion testimony. It seems if the right of confrontation demands the opportunity to cross-examine a pathologist concerning the ultimate opinion as to the cause of death, the confrontation right must also provide the opportunity to test the factual underpinnings of that opinion by cross-examination. The distinction drawn by the Fourth Department seems rather arbitrary, and unfortunately the three sentences devoted to explaining the Court's reasoning do not provide much illumination.

It is also difficult to square the Fourth Department's decision with the recent Court of Appeals decision in People v Goldstein (__ NY3d __ [previously discussed here]). In Goldstein, the Court of Appeals found that statements made by witnesses to the People's expert psychiatrist were "testimonial" under Crawford because the witnesses "should reasonably have expected their statements to be used prosecutorially or to be available for use at a later trial." (People v Goldstein, __ NY3d __.) Certainly the Court of Appeals drew no distinction between purely fact-based statements and opinions--rather, the only relevant question is whether a witness should expect the statement to be used by the prosecution at a subsequent trial. Under that simple test, an autopsy report--both the factual portion and any opinion content--is testimonial. The Fourth Department's decision in Bryant does not address Goldstein or otherwise attempt to justify its reasoning.

The Fourth Department also found that statements made by the victim in response to police questioning and reduced to a written deposition by the interviewing police officer were not "testimonial" because "[t]hose statements were made by the victim outside the context of any 'structured police questioning', and thus those statements did not constitute testimonial evidence." (Bryant, __ AD3d at __ [quoting Crawford].) It is not clear how much more "structured" the questioning would have to be before the Fourth Department would hold such responses testimonial. But again the Court of Appeals' decision in Goldstein seems at odds with the Fourth Department's decision--a crime victim who is responding to questions from a police officer and who signs a deposition written out for her by the police officer based on her responses should "reasonably have expected their statements to be used prosecutorially." (Goldstein, __ NY3d at __.) Again, the Fourth Department's decision does not deal with Goldstein.

Also puzzling is the Fourth Department's holding in Bryant that a statement given by an assault victim, some 9 hours after the alleged assault and where it can be inferred that the victim was sleeping for all or most of that time, was nonetheless an "excited utterance" for hearsay purposes. (See Appellant's Brief (on file with the Fourth Department) at 18-22; Respondent's Brief at 22.) The test for an excited utterance is whether the statement is made "while the nervous excitement may be supposed to still dominate the reflective powers." (People v Brown, 70 NY2d 513, 518 [1987].) I would think the fact that the victim was able to fall asleep is evidence that whatever "nervous excitement" may have been caused by the assault had dissipated. The Fourth Department does not address the fact that the victim was asleep or that over 9 hours passed between the assault and the statement; nor does the Fourth Department discuss the Court of Appeal's recent holding that there is no "injury" or pain exception to the hearsay rule. (See People v Johnson, 1 NY3d 302, 307 [2003].)

A note on this blog.

You have probably noticed a periodic lull in posts around here, mainly between terms of the Fourth Department. I have decided to keep a narrow focus for this blog, and I usually post only about new decisions from the Fourth Department and the Court of Appeals. Thus, no new decisions, no new content. The Fourth Department is handing down decisions for its February term on St. Patrick's Day (Friday, March 17), and I anticipate some new Court of Appeals decisions between now and then.

CA: anonymous tip not describing criminal conduct insufficient to justify gunpoint seizure

People v Moore, __ NY3d __ [available here]

In a decision handed down this week, the Court of Appeals held that an anonymous tip reporting "a dispute involving a male Black with a gun, described as approximately 18 years of age, wearing a gray jacket and red hat" was insufficient to establish reasonable suspicion justifying a gun-point stop where the responding police observed only a black man wearing a grey jacket and red hat and did not observe any type of dispute. Sui Generis has a full post on the decision here.

Sorry for the lack of posts this week--I had three arguments on three consecutive days and was thus otherwise occupied. Regular posting to resume next week.

AD4: Leftovers (January 2006 term)

Here are the rest of the noteworthy decisions from the Fourth Department's January, 2006 term, in no particular order:

People v Dye, __ AD3d __ [available here]: in rape prosecution where the victim was a 12-year-old relative of defendant, "County Court did not commit reversible error in allowing the victim to testify that defendant's nickname was 'Bo Peep'."

People v Roberts, __ AD3d __ [available here]: Court declines to exercise its interest of justice jurisdiction to reach defendant's argument "that the verdict is repugnant insofar as the jury found him guilty of attempted murder but not guilty of assault in the first degree [...]."

People v Dandridge, __ AD3d __ [available here]: defendant did not object to trial court's failure to read the correct robbery jury charge, and the Court declines to hold the error implicated "the organization of the court or the mode of proceedings" and further declines to reach the issue in the interest of justice.

People v Rossi, __ AD3d __ [available here]: "The promise of the officer to 'put in a good word' to the judge does not render defendant's statement involuntary because the promise 'did not create a substantial risk that the defendant might falsely incriminate himself.'"

People v Wurthmann, __ AD3d __ [available here]: "Contrary to defendant's contention, neither the interrogating officer's false statement to defendant that his fiancee was upset by his polygraph results nor the officer's promise to take defendant to see his fiancee after he told the officer what happened was 'so fundamentally unfair as to deny due process' or likely to induce a false confession."

People v Jefferson, __ AD3d __ [available here]: "Defendant failed to preserve for our review his contention that the admission of the [911 tape] violated his right to cross-examine and confront a witness against him, and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice."

People v Shank, __ AD3d __ [available here]: defendant's conviction for operation of a motor vehicle on a public highway while drink an alcoholic beverage not supported by legally sufficient evidence where "the officer testified that he observed an empty beer bottle in defendant's vehicle . . . there was no evidence that the bottle contained alcohol, nor was there evidence that defendant was drinking from the bottle while in the vehicle 'located upon [a] public highway [].'"

People v Carlton, __ AD3d __ [available here]: "[T]he summary denial of those parts of [defendant's] motion seeking suppression of the pistol and bullets and the items seized from his locker at work cannot be sustained . . . a suppression hearing is required to determine the disputed issue of whether the pistol and bullets were seized in plain view as part of the lawful search of defendant's premises . . . [and] a hearing is required to determine the further disputed issue of whether defendant consented to the search of that locker."

And the heartwarming decision of the month (as previously noted by Sui Generis here):

People v William S., __ AD3d __ [available here]: "Defendant was 16 years old at the time of the assault and had no prior criminal record. In addition, it appears from the record that the assault was precipitated by some racial name-calling by the victims and that defendant's older sisters were the primary perpetrators of the assault. We conclude that despite a difficult upbringing, defendant has the potential to lead a law-abiding life, and we deem it appropriate to modify the judgment as a matter of discretion in the interest of justice by adjudicating defendant a youthful offender." Kudos to the Court for taking a flyer on this kid.

Court of Appeals Overload!

The Court of Appeals handed down three more decisions today, all significant. This brings the total number of decisions handed down this week to six. Rather than string things out by posting about one decision a day, here are all five of the heretofore un-blogged about decisions, with a nutshell summary of the important holdings.

People v Lopez, __ NY3d __ [available here]

In a decision of impact for everyday appellate practitioners, the Court of Appeals (in a decision written by Chief Judge Kaye) holds that "when a defendant enters into a guilty plea that includes a valid waiver of the right to appeal, that waiver includes any challenge to the severity of the sentence. By pleading guilty and waiving the right to appeal, a defendant has foregone review of the terms of the plea, including harshness and excessiveness of the sentence." (People v Lopez, __ NY3d at __.) Given this holding, Judge Kaye stresses the care that must be taken in eliciting a waiver of the right to appeal:

Because only a few reviewable issues survive a valid appeal waiver, it is all the more important for trial courts to ensure that defendants understand what they are surrendering when they waive the right to appeal. Giving up the right to appeal is not a perfunctory step. [...] When a trial court characterizes an appeal as one of many rights automatically extinguished upon entry of a guilty plea, a reviewing court cannot be certain that the defendant comprehended the nature of the waiver of the appellate rights. The record must establish that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty . . . When a trial court inaccurately employs the language of forfeiture in a situation of waiver, it has mischaracterized the nature of the right a defendant was being asked to cede.

(Id. at __.)

Judge G.B. Smith dissented, and would have held that, because the Appellate Division's "interest of justice" jurisdiction is guaranteed by the New York Constitution, barring a defendant from "invoking the Appellate Division's interest-of-justice power to review and reduce sentences . . . is a divesture of the Appellate Division's power with regard to that defendant and a violation of article VI, section 4(k) of the New York State Constitution." (Id. at __.)

People v Miller, __ NY3d __ [available here]

In a decision written by Judge Rosenblatt, the Court of Appeals holds that Murder in the Second Degree is always an "inclusory concurrent count" of Murder in the First Degree, and therefore a defendant convicted of Murder in the First Degree is entitled to have any Murder in the Second Degree charges based on the same killing dismissed upon conviction of the Murder in the First Degree. As explained by Judge Rosenblatt, Murder in the First Degree is simply an intentional murder (i.e. a Murder in the Second Degree) plus an aggravating factor listed in the statute, and "it is impossible to commit intentional murder plus without at the same time committing intentional murder." (People v Miller, __ NY3d at __.)

People v DeCosta, __ NY3d __ [available here]

The Court of Appeals held the evidence was sufficient to support defendant's conviction for manslaughter in the second degree where defendant fled across a six-lane expressway and an officer was hit by a car and killed while giving chase. (See my previous post on this case here.)

People v Waldron, __ NY3d __ [available here]

The issue in Waldron was whether a certain chunk of time was chargeable to the People for speedy trial purposes. Defendant's attorney sent the prosecutor a letter asking the prosecutor to hold off presenting the case to the grand jury while plea negotiations continued, and the letter further stated "the defendant does hereby waive any speedy trial or other rights that he may have by your concurring in this request." (Waldron, __ NY3d at __.) However, defendant subsequently "sought and paid for the legal advice of another inmate", discharged his attorney, and brought his own speedy trial motion wherein he denied ever consenting to the waiver of his speedy trial rights. (Id. at __.) The Court of Appeals held "[o]n this record, where defendant's counsel explicitly waived speedy trial rights in order to complete ongoing plea negotiations, such time is excludable." (Id. at __.)

People v Burns, __ NY3d __ [available here.

The defendant in Burns was charged with murder after a shootout left the defendant injured and the victim killed. The defense argued that defendant was not the shooter, but rather he and the victim were both shot by the same "gang of Hispanic men." (Burns, __ NY3d at __.) A statement taken by the police from an identified witness "placed five armed Hispanic men a few New York City blocks away from the scene of the shootout on the same day at roughly the same time . . . [and] [a]fter declarant had walked about two blocks from the site of this encounter, he heard gunshots and sirens." (Id. at __.) The Court of Appeals found the trial court's exclusion of this statement on hearsay grounds did not violate defendant's constitutional right to present a defense because "the trial court offered defendant a 'so ordered' subpoena for declarant to testify and the opportunity to make an offer of proof." (Id. at __.)

CA: document kept in attorney's office can still be a "business record" under the Penal Law

People v Bloomfield, __ NY3d __ [available here]

The Court of Appeals handed down three criminal opinions yesterday. None are ground-breakers, but the most significant is People v Bloomfield, where the Court of Appeals considered whether there was enough evidence at trial "that fraudulent letters kept in the files of an enterprise's legal counsel, rather than at the company's headquarters, were 'business records' as defined by Penal Law section 175.00." (Bloomfield, __ NY 3d at __.) The trial court found the letters to be business records; a unanimous Appellate Division reversed, holding that because the letters were not found in the files or records of any of the enterprises involved but rather in the attorney's office, "they were not 'kept or maintained' by these" enterprises and thus not "business records". (People v Bloomfield, 15 AD3d 302, 304.) The Court of Appeals disagreed, and started its analysis by noting the Penal Law definition of a "business record", i.e. "any writing or article . . . maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity." (Bloomfield, __ NY3d at __.) Given that definition, Court of Appeals found, "contrary to the Appellate Division's holding, the actual location of the records is not dispositive as to whether the documents are business records under Penal Law section 175. Instead, location is merely a factor for the trier of fact to consider in determining whether the purpose of the records is to reflect or evidence the 'condition or activity' of the enterprise." (Id. at __.)

The definition of "business records" discussed in Bloomfield--i.e. defining the term for purposes of attaching criminal liability for such crimes as falsifying business records under the Penal Law--should not be confused with the definition of a "business record" for evidentiary purposes under CPLR 4518.

CA: Right to counsel that attached in 1998 does not preclude defendant from waiving counsel in 2001

People v Bongarzone-Suarrcy, __ NY3d __ [available here]

The Court of Appeals held, in a decision handed down this past Thursday, that a defendant's right to counsel that attached in 1998 (when the defendant was first questioned about a murder) "did not prevent defendant from waiving counsel and speaking to police in 2001", where the "police who questioned defendant in 2001 neither knew, nor reasonably should have known, of the attorney's entry" in 1998. (People v Bongarzone-Suarrcy, __ NY3d at __.) Nicole at Sui Generis has a full review of the decision here.

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.