AD3: Decisions for May 17, 2007

"The Third Department will never understand our love"

People v Sylvester, 2007 NY Slip Op 04189 [available here]

Ms. Sylvester "met and married" her husband while he was "incarcerated for a murder conviction [...]." (Sylvester, 2007 NY Slip Op 04189.) Perhaps frustrated by the excessive per-minute charges for prison telephone calls in New York, Ms. Sylvester mailed her husband "three cell phones, along with chargers and headsets, in a typewriter [...]." (Id. at __.) Upon being caught and arrested, Ms. Sylvester pleaded guilty to one count of attempted promoting prison contraband in the first degree, and was sentenced to probation. "One term of probation prohibited her from entering any state correctional facility." (Id. at __.)

On appeal, Ms. Slyvester argued her plea colloquy was not sufficient because she was charged "with unlawfully and knowingly introducing dangerous contraband into a detention facility," and she told the court during her plea, "'I didn't know it was dangerous contraband.'" (Id. at __.) Not enough to invalidate the plea, says the Third Department; the "knowing" element required that she knew she was sending cell phones into prison, and whether or not she realized that cell phones were "dangerous" for purposes of the statute was irrelevant. (Id. at __.)

Ms. Sylvester also objected to the condition of probation that prohibited her from entering any state prison (and thus preventing her from seeing her husband). The Court upheld the provision, and struck a paternal tone; while recognizing that the condition "will preclude her from visitation with her husband," the Court nevertheless held the provision was valid because the "defendant met and married him while he was incarcerated for a murder conviction and she had no involvement with the criminal justice system prior to his manipulation and negative influence." (Id. at __.)


Leaving store with stolen merchandise through "employees only" area sufficient for burglary conviction

People v Athanasatos, 2007 NY Slip Op 04190 [available here]

Mr. Athanasatos waited in the car while his buddy went into a Staples, filled a 41-quart trash can with inkjet cartridges, and left the store via an "employees only" area without paying for the merchandise. (Athanasatos, 2007 NY Slip Op 04190.) Both men were convicted of third-degree burglary. On appeal, Mr. Athanasatos argued that the burglary conviction was not supported by legally sufficient evidence, because the larceny was complete before his friend entered the employees only area of the store, and thus he could not have entered the restricted area with the intent to commit a crime. The Third Department disagreed, noting

that there is no indication that Dellisanti concealed, attempted to secret the stolen property or moved the property towards an exit while he was in the public area of the Staples store; rather, defendant asserts that the evidence showed that Dellisanti carried the items openly i.e., "in a manner . . . [that was] in accord with that of a prospective purchaser" until he entered the restricted area of the store. Under these circumstances, Dellisanti's possession was not inconsistent with the continued rights of the owner until he took the property from the general shopping area into the restricted area. Accordingly, in our view, there was a legally sufficient basis from which the jury could conclude that Dellisanti unlawfully entered the restricted area of the store with the contemporaneous intent to commit a larceny.

The Court also upheld the trial court's Molineux ruling that allowed questioning about an identical crime committed by the same two men a few days earlier at a different Staples store. The evidence was "properly admitted . . . as proof of a preconcerted common scheme or plan," and any error was harmless. (Id. at __.)


Stand by your man . . . or not

People v Lownes, 2007 NY Slip Op 04193 [available here]

In a textbook display of passive-aggression, Mr. Lownes' girlfriend called his parole officer and told him that "defendant would be traveling from his residence to another location in the City of Albany with a large amount of crack cocaine." (Lownes, 2007 NY Slip Op 04193.) Real nice. After a short surveillance, the police pulled over Mr. Lownes' vehicle, but, alas, no drugs were found. (Id. at __.) But since he was on parole, Mr. Lownes was detained for further questioning anyway.

Meanwhile, back at the apartment Mr. Lownes shared with his girlfriend, the girlfriend was signing a written consent giving police permission to search the apartment. This time, the police found "22 grams of crack and a digital scale [...]." (Id. at __.) The decision does not explain exactly how Mr. Lownes ticked off his girlfriend, but I'm guessing it was bad.

The Third Department upheld the trial court's refusal to suppress the crack and the scale. The defendant's detention "was rationally and reasonably related to the performance of the parole officer's duties", and "inasmuch as defendant's girlfriend consented in writing to the search of their apartment, the search was permissible." (Id. at __.) The lesson: treat your woman right, especially if she knows where you keep your drugs.

AD1: Decisions for May 15, 2007

Don't mess with a NYC cabbie

People v Ortiz, 2007 NY Slip Op 04183 [available here]

Mr. Ortiz stole a cab, and drove off with the cabbie still "hanging on to its outside." (Ortiz, 2007 NY Slip Op 04183.) "Defendant drove the cab into a bus shelter, a fence and a tree, and the evidence demonstrates that he did so in an attempt to dislodge the victim from the cab." (Id. at __.) Not that I know from experience, but I think a Rochester cabbie would have let go of the cab after being driven into one large inanimate object. Anyway, the First Department held this evidence was legally sufficient to establish that Mr. Ortiz intended to cause serious physical injury to the cabbie. (Id. at __.)

The Court did reduce Mr. Ortiz's conviction for first-degree perjury to third-degree perjury. While Mr. Ortiz lied to the grand jury about his name and address, he did not deny "his identity as the person who was arrested", and thus the information he lied about was "not material to the grand jury's investigation" and thus that element of first-degree perjury was lacking. (Id. at __.)


Trial court's denial of Rockefeller drug resentencing for kingpin within bounds of discretion

People v Salcedo, 2007 NY Slip Op 04170 [available here]

The Drug Law Reform Act allows persons convicted of certain drug offenses to petition for resentencing, and the "court should grant a resentencing application 'unless substantial justice dictates that the application be denied.'" (Salcedo, 2007 NY Slip Op 04170.) The lower court refused to grant Mr. Salcedo's resentencing petition, and the First Department affirmed. "Defendant, who was convicted of three counts of first-degree drug possession, was the head of a multi-million dollar international drug organization, and his evidence of rehabilitation while incarcerated was insignificant in light of the magnitude of his crime." (Id. at __.)

AD3: Decisions for May 10, 2007

Failure to turn over evidence of cooperation agreement and an informant's partial recantation of trial testimony does not require a new trial

People v Tucker, 2007 NY Slip Op 04000 [available here]

Mr. Tucker was convicted of murder in 1983 based in part on an informant's testimony. At trial, the informant denied he was testifying pursuant to a cooperation agreement with the prosecutor. In 2005, Mr. Tucker asked the trial court for a new trial, on the basis of newly discovered evidence and certain Rosario, Brady and Giglio violations that came to light only after trial.

Defendant's "newly discovered evidence" argument was based on a written statement obtained from the informant indicating that he had lied at trial and that he did, in fact, testify with the understanding that the prosecutor would offer him a reduced sentence on a pending charge. (Tucker, 2007 NY Slip Op 04000.) The Third Department agreed with the trial court that a new trial was not required based on this evidence alone, primarily because whatever promise was made to the informant was not kept by the prosecutor. "Although this record contains some evidence suggesting that a promise of no jail time was made for a then-pending burglary charge if he testified against defendant, [the informant] was sentenced to one year in jail well in advance of defendant's trial and made no mention of this guaranty during his testimony." (Id. at __.) In any event, any error was harmless given the other evidence of defendant's guilt. (Id. at __.)

The Rosario, Brady and Giglio violations were related, and all concerned documents tending to demonstrate the existence of a cooperation agreement. The most relevant was a letter the informant wrote to a judge, in which he "claim[ed] that, despite promised leniency, he was sentenced to a year in jail." (Id. at __.) Once again, no harm, no foul, says the Third Department. Evidence that a cooperation agreement existed could not have changed the verdict because, according to the Court, "the record demonstrates both that [the informant] did not receive the benefit of the cooperation agreement in exchange for his testimony and his trial attorney had been informed by the prosecution of the possible existence of cooperation agreements." (Id. at __.)

To the extent the facts below demonstrate that the cooperation agreement was breached by the People before Mr. Tucker's trial, and the informant understood that the People could not deliver on their "no jail time" promise, I supposed I can understand the Third Department's decision here. But it seems like the informant's letter would at least suggest that, whatever the actual reality of the situation, the informant thought the agreement was still in place at the time of trial testimony, and that he was upset when, in his view, the People did not hold up their end of the bargain by reducing his sentence. The fact that the informant was sentenced prior to giving his testimony at Tucker's trial and therefore the People would not be able to give the informant what he was promised for his testimony--i.e. no jail time--is not really dispositive. If the informant thought that the prosecutor was still going to somehow make good on the "no jail time" promise, then the cooperation agreement would still undermine his credibility as a witness, and it would be difficult to dismiss the failure to turn over evidence of the agreement as harmless error.


Security officers and sign-in sheet at building entrance, marked office door sufficient to establish area of burglary was not open to the public

People v Carter, 2007 NY Slip Op 03999 [available here]

Mr. Carter was caught going through an office worker's desk and bag; he fled, was caught, and charged with burglary. (Carter, 2007 NY Slip Op 03999.) On appeal, Carter argued that the office building was open to the public and lacked "conspicuous markers which indicate the private areas", and therefore he could not have entered or remained unlawfully (as required for a burglary conviction). (Id. at __.) Not so much, says the Third Department; the building had security officers and a sign-in sheet in the lobby, and the office where the burglary happened was clearly marked as an "CSEA Office." (Id. at __.) "This evidence, viewed in the light most favorable to the People, establishes that defendant entered and remained unlawfully in that part of the premises not open to the public." (Id. at __.)

AD2: Decisions for May 10, 2007

Exigency must justify "grab area" search even if incident to arrest

People v Hernandez, 2007 NY Slip Op 04143 [available here]

When he was arrested on suspicion of robbery, Mr. Hernandez was handcuffed and sitting in a chair. Mr. Hernandez's knapsack was on a table in front of him. The arresting officer searched the knapsack and found certain proceeds of the robbery. (Hernandez, 2007 NY Slip Op 04143.) The trial court refused to suppress, holding the search of the knapsack was incident to a lawful arrest and therefore the People did not need to prove exigence circumstances justified the search. The Second Department reversed, noting that "the Court of Appeals has explicitly stated that exigent circumstances are, indeed, a prerequisite to a search incident to arrest of a defendant's effects in the defendant's immediate control or 'grabbable area' [...]" (Id. at __.) Absent proof that the knapsack search was necessary to prevent the destruction of evidence or to protect the police and public, the "People failed in their burden . . . of establishing the reasonableness of the police conduct." (Id. at __.)


Trial court's refusal to allow evidence of complainant's HIV status is harmless error

People v Taylor, 2007 NY Slip Op 04149 [available here]

Police officers conducting an unrelated investigation heard a woman "crying, calling for help, and saying 'stop'" from an apartment. Upon entry, the officers

saw the victim hog-tied with an electrical cord and a shoelace, and the codefendant over her with a pillow in his hands. The defendant was by the door with money in his left hand. When he saw the police, he said, "oh, shit," and ducked behind the door. After a struggle, the defendant was arrested and eight dollar bills were recovered from under a chair behind the door. The officers testified that the victim appeared very scared, and was crying and asking for help.

(Taylor, 2007 NY Slip Op 04149.)

I think "oh shit" about covers it. The woman testified at trial, and claimed Mr. Taylor and another man entered her room while she was sleeping, "tied her up, placed a pillow over her head, and demanded money." (Id. at __.) Mr. Taylor and his co-defendant both testified and told a different story; both admitted that they tied up the woman, but they claimed it was for the purpose of "consensual bondage-style sexual intercourse [..]." (Id. at __.) According to the defendants' version, the woman started "screaming and crying and everything" because Mr. Taylor told his co-defendant that the victim was HIV positive. (Id. at __.)

The trial court refused to allow "the testimony concerning the victim's HIV status," instead limiting defense counsel to specifying the revelation of the victim's HIV status as a generic breach of confidence. Id. at __.) On appeal, Mr. Taylor argued the trial court's ruling deprived him of his right to present a defense because evidence of the victim's HIV status "was necessary to explain the victim's extreme emotion state when the police arrived, and to establish her bias, hostility, and motive to fabricate criminal charges out of what was in fact a consensual sexual encounter." (Id.)

While recognizing that the evidence of the HIV status would not be collateral because it "is directly probative on this issue of credibility," the Second Department declined to reverse. According to the Court, the victim's HIV status was properly excluded under New York's "rape shield" law, and even if the application of that statute served to violate Mr. Taylor's right to present a defense, any error was harmless. The "defendant was not precluded from presenting his defense to the jury that the victim's highly emotional state when the police entered was the product of her anger and outrage and the defendant's betrayal of a confidence . . . he was only precluded from presenting direct evidence as the exact nature of the confidence." (Taylor, 2007 NY Slip Op 04149.) Given the other evidence of defendant's guilt, the Court found "no reasonable possibility that the striking of testimony concerning the victim's HIV status contributed to the conviction." (Id. at __.)

I'm sure there is case law on this, but is a victim's HIV status properly covered by the rape shield law? Isn't it just as likely that the victim got HIV from a non-sexual source, i.e. a dirty needle, a blood transfusion, etc.? The fact that a person has HIV does not necessarily speak to that person's sexual history. If that direct link cannot be conclusively made, it seems the rape shield law should not come in to play.

Automobile drug possession presumption does not apply to marijuana

People v Gabbidon, 2007 NY Slip Op 04141 [available here]

Defendant was indicted for Criminal Possesion of Marijuana in the Fourth Degree. At the grand jury, the prosecutor "charged the grand jury that the statutory presumption of knowing possession of a controlled substance in an automobile, as set forth in Penal Law 220.25[1], was applicable to possession of marihuana." (Gabbidon, 2007 NY Slip Op 04141.) The trial court dismissed the indictment, and the Second Department affirmed. The presumption charged by the prosecutor to the grand jury "applies only to the presence of a controlled substance in an automobile", and the Penal Law "specifically excludes marihuana from the definition of controlled substance." (Id. at __.) Since the grand jury may well have relied on the presumption in charging Mr. Gabbidon with marijuana possession, the trial court "correctly dismissed the indictment." (Id. at __.)

AD1: Decisions for May 10, 2007

Postrelease supervision period reduced because sentencing judge promised the minimum but gave the max

People v Marrero, 2007 NY Slip Op 04038 [available here]

Defendant pleaded guilty to Criminal Possession of a Controlled Substance in the Fourth Degree. At sentencing, the court said it was imposing "the minimum period of post-release supervision permitted by law," which would be 1 1/2 years. (Marrero, 2007 NY Slip Op 04038.) The period actually imposed was two years. (Id. at __.) The People on appeal conceded that the period of postrelease supervision should be reduced to 1 1/2 years as per the sentencing judge's statement promising the minimum term. (Id.) The First Department accepted the People's concession and lopped off six months of the postrelease supervision. (Id.)

I always wanted to be a footnote.

I'm not sure what this says about the standards at the Harvard Law Review, but this blog was cited (with approval, I think) in the latest issue of that esteemed journal. (See 120 Harvard L. Rev. 1707, 1710 fn 30 [April 2007], available here.) The article summarizes the Second Circuit's recent decision in US v Feliz (467 F3d 227 [2d Cir. 2006]), and references my post discussing whether autopsy reports qualify as "testimonial" under Crawford v Washington (541 US 36). It is nice to know that, long after this blog has evaporated into the digital ether, some trace of the endeavor will be left, collecting dust on a law library shelf.

AD1: Decisions for May 8, 2007

Lots of small plastic bags in plain view = probable cause to search vehicle

People v Jackson, 2007 NY Slip Op 03964 [available here]

The police pulled over Mr. Jackson's car, and "observed in plain view a large quantity of small plastic bags [...]." (Jackson, 2007 NY Slip Op 03964.) Based on that information alone, the First Department held there was probable cause to search the car. The officer opined that the bags were "narcotics paraphernalia" based on "his experience and training" (of course), and that was enough to establish "probable cause to believe that the vehicle contain narcotics, thereby justifying a search under the automobile exception to the warrant requirement that resulted in the recovery of a handgun." (Id. at __.) Notice how the search turned up no narcotics.

Also note this is the same Court that just last week upheld a trial court's curtailment of a defense attorney's cross-examination of a narcotics officer concerning the relevance of certain evidence in a drug case because the officer's "subjective opinion" as to the nature of the drug evidence was "not relevant", and the trial court was correct when it "directed counsel to only ask questions that would elicit the facts of the case." (People v Cestalano, 2007 NY Slip Op 03782.) Yet in Jackson, the road patrol's officer opinion as to the significance of the little baggies was not only relevant, but alone sufficient to establish probable cause to search the car.

The lesson, as always: the First Department hates me.


Defendant not deprived of right to appear before grand jury where failure to appear was attributable to defense counsel's shenanigans

People v Watkins, 2007 NY Slip Op 03978 [available here]

After notifying the prosecutor that his client wished to testify before the grand jury, defense counsel essentially went into hiding, avoiding the prosecutor and refusing to confirm that the defendant would be appearing before the grand jury. Defendant claimed on appeal that he had been deprived of his right to testify before the grand jury. Nice try, says the First Department; the People made "considerable and repeated attempts to contact defense counsel" and postponed "the grand jury presentation on two occasions," and that was enough to "provide defendant with a reasonable and meaningful opportunity to testify before the grand jury." (Id. at __.) The Court condemned defense counsel's "deliberately dilatory and evasive conduct", calling it "nothing more than a blatant attempt to use the People's obligations under CPL 190.50 as an opportunity for gamesmanship, conduct of which we strongly disapprove." (Id. at __.) But, defense counsel was not ineffective. (Id. at __.)


Defense attorney's testimony contradicting defendant's alibi A-OK

People v McGraw, 2007 NY Slip Op 03988 [available here]

Before the defendant's case was presented to the grand jury, defense counsel made statements to the prosecutor ("with defendant's consent", according to the opinion) about the defendant's whereabouts at the time of the crime. (McGraw, 2007 NY Slip Op 03988.) The defendant changed his story at trial, providing a different alibi than the one first given by the defense attorney. The People called the defense attorney as a rebuttal witness to testify that he had previously given the prosecutor a different alibi than the one posited by the defendant at trial. The trial court allowed the testimony, over defendant's objection. (Id.)

Perfectly kosher, says the First Department. The original attorney was the defendant's agent, and therefore the statement could come in "as an admission against the party." (Id. at __.) While recognizing that the People cannot use a withdrawn alibi notice to impeach a defendant, the Court refused to characterize the original attorney's statement to the prosecutor (putting the People on notice that the defendant had an alibi) as an official alibi notice. "[T]here never was an alibi notice relating to the first alibi; instead, the first alibi was volunteered in an effort to forestall indictment." (Id. at __.) According to the Court, Defense counsel's statement was not given "as a form of disclosure mandated by CPL 250.20", and therefore "there was nothing to trigger the special protections against impeachment that apply when a defendant withdraws a mandated alibi notice." (Id.) A distinction without a meaningful difference, perhaps, but apparently enough for the First Department.

CA: Decisions for May 8, 2007

Sentences for two counts of "multiple" Murder in the First Degree must run concurrent

People v Rosas, 2007 NY Slip Op 03957 [available here]

Back in 1997, Mr. Rosas killed his ex-girlfriend and her husband. He was convicted of two counts of "multiple" Murder in the First Degree, under the theory that he intentionally killed both his ex-girlfriend and her husband, and that in doing so he intended to cause the death of his ex-girlfriend and intended to cause either death or serious physical injury to her husband (and vice versa for the second first-degree murder count). The trial court sentenced Mr. Rosas to consecutive terms of life without parole; the Appellate Division modified the sentences to run concurrent.

The Court of Appeals (in a majority decision written by Judge Ciparick) agreed with the Appellate Division and held that the sentences must run concurrent under Penal Law section 70.25 because the same act--the intentional murder of both victims--underpinned both counts of Murder in the First Degree. (Rosas, 2007 NY Slip Op 03957 at __.) Although each victim was killed by a separate gunshot, the actus reus contemplates the completed crime, and the crime of Murder in the First Degree was not complete until both victims were intentionally killed. "The two separate shots that caused the deaths of the victims here were one actus reus for the purposes of this sentencing statute and consistent with our long-settled interpretation of Penal Law section 70.25(2)." (Id. at __.)

Judge Graffeo dissented, and would have permitted the first-degree Murder sentences to run consecutive. "Each shooting was a separate act and each offense required the People to prove both shootings, i.e. each count required proof of more than one act. There was no single act or omission which in itself constituted one of the offenses. Because defendant's criminal conduct does not fall within either scenario addressed in Penal Law section 70.25(2), consecutive sentencing is not prohibited." (Id. [GRAFFEO, J., dissenting].)


Thanks for coming to Albany!

People v Person, 2007 NY Slip Op 03959 [available here]

The Court declines to decide Mr. Person's case on the merits and instead holds the issue is not preserved for the Court's review. For a Court that controls its own docket, an awful lot of criminal decisions have been tossed on preservation grounds this year. (See People v Miller, 2007 NY Slip Op 03595 [issue not preserved]; People v Gomcin, 2007 NY Slip Op 02590 [record support for lower court's determination]; People v Melendez, 2007 NY Slip Op 02438 [issue not preserved]; People v Dallas, 2007 NY Slip Op 02440 [record support for lower court's determination].)

AD2: Decisions for May 2, 2007

Murder conviction overturned based on prosecutor's misconduct

People v Bennett, 2007 NY Slip Op 03937 [available here]

Prior to trial, defense counsel asked the prosecutor to turn over a specific police report that memorialized the statement of a civilian witness (Ricky Davis). The prosecutor denied that Davis was going to testify, and therefore the police report was not Rosario material.

At the end of their case, the prosecutor called Ricky Davis to testify. Davis was allowed to testify (over objection) that the murder victim had identified the defendant as his killer before police arrived. (Bennett, 2007 NY Slip Op 03937.) The Second Department reversed based on the prosecutor's misconduct in a very strongly-worded decision, holding the prosecutor "ambushed the defense by his deception" and "capitaliz[ed] on these unfair tactics in summation." (Id.)

Denial of right to counsel may be raised for the first time on appeal

People v Wood, 2007 NY Slip Op 03955 [available here]

During his interrogation, Mr. Wood "told police 'I think I should get a lawyer'[...]." (Wood, 2007 NY Slip Op 03955.) Questioning continued, and Wood ultimately gave a videotaped statement. The Second Department held that the statement should have been suppressed, and that the error did not need to be preserved for appeal. "While this issue was not raised before the hearing court, the claimed deprivation of that constitutional right may be raised for the first time on appeal." (Id.)

While Mr. Wood dodged the preservation bullet--fatal to so many appeals--he was felled by another standby of appellate jurisprudence; the Court held the "error was harmless beyond a reasonable doubt in light of the overwhelming evidence of the defendant's guilt." (Id.)

CA: Decisions for May 1 & 3, 2007

Defendant's denial of guilt, challenge to time of arrest and reliability of witness sufficient to warrant probable cause hearing

People v Bryant, 2007 NY Slip Op 03791 [available here]

The trial court in Bryant denied the defendant's request for a probable cause hearing "on the ground that defendant failed to present sufficient information to obtain a hearing where defendant denied acting as the principal or accomplice, raised a question of fact regarding the time of his arrest and challenged the reliability of the alleged witness." (Bryant, 2007 NY Slip Op 03791 at __.) The Court of Appeals (in a unanimous decision by Judge Jones) reversed, noting that the defendant could not have been expected to be more precise in his pleadings when the People were not divulging much by way of discovery. "Here, defendant . . . lacked critical information only the People could provide--i.e., the factual predicate for his arrest. Because defendant lacked this information, he was not in a position to allege facts disputing the basis for his arrest. The People could not both refuse to disclose the informant's identity, or at least some facts showing a basis for the informant's knowledge the police relied upon to establish probable cause for the arrest, and insist the defendant's averments in his pleadings were insufficient to obtain a Mapp/Dunaway hearing." (Id. at __.) A very useful decision for the criminal defense bar.


Intoxication is not an affirmative defense to third-degree sodomy

People v Newton, 2007 NY Slip Op 03754 [available here]

The Court (in a unanimous decision by Judge Read)holds that intoxication is not an affirmative defense to sodomy in the third degree. To be guilty of sodomy in the third degree, a defendant must engage in a sex act with another person without consent. The statute makes the standard for determining "consent" an objective one; the question is whether "a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances." (Newton, 2007 NY Slip Op 03754 [quoting Penal Law 130.05[2][d].) The Court held that, "[b]ecause a defendant's subjective mental state is not an element of the crime of third-degree sodomy, evidence of intoxication at the time of the sexual act is irrelevant. Thus, the trial judge in this case properly declined to instruct the jury on intoxication with respect to the charge of this crime." (Newton, 2007 NY Slip Op 03754.)

I agree with that last bit; if there is no intentional mens rea, then a defendant is not entitled to have intoxication charged as an affirmative defense. But it seems to go a bit further than necessary to say that evidence of intoxication is "irrelevant" to the crime of third-degree sodomy. The standard is an objective one, but the issue of consent is viewed from the perspective of a "reasonable person in the actor's situation". If the defendant is intoxicated at the time of the incident, then it would seem the proper inquiry for the jury is whether a reasonable, intoxicated person would have understood the complainant's words and actions to indicate a lack of consent. While not technically an affirmative defense that needs to be charged to the jury, a defendant's intoxication is nevertheless a fact to be considered by the jury in determining guilt. So, again, perhaps saying evidence of intoxication is "irrelevant" takes things a little too far.


Bite my finger

People v Chiddick, 2007 NY Slip Op 03757 [available here]

Mr. Chiddick bit a man in the finger while attempting a burglary. "The bite caused [the man's] fingernail to crack and his finger to bleed." (Chiddick, 2007 NY Slip Op 03757.) The man testified that the bite caused him "moderate" pain. (Id.) A jury convicted Chiddick of second-degree Assault on the theory that the finger-bite caused "substantial pain." (Id. at __.) The Court of Appeals (in a unanimous decision written by Judge Smith) found the trial evidence sufficient to establish the "substantial pain" required. In doing so, the Court waters down the "substantial pain" standard significantly.

The pain must only be "more than slight or trivial," and "need not . . . be severe or intense to be substantial." (Id. at __.) Great weight was placed on an objective view of the injury. (Id. at __ ["Here, defendant broke Gentle's fingernail and caused him to bleed--an experience that would normally be expected to bring with it more than a little pain."].) Also relevant was the fact that the victim sought medical treatment ("an indication that his pain was significant"). (Id. at __.) The Court even goes so far as to consider the defendant's motive in inflicting the wound. (Id. ["Motive is relevant because an offender more interested in displaying hostility than in inflicting pain will often not inflict much of it."].)

A decision long on speculation, speaking what would "seem" unlikely, what would "normally be expected", etc. Such contortions necessary, it must be noted, because the victim's testimony established only a "moderate" degree of pain, and turning "moderate" into "substantial" takes a fair bit of doing.


Juror not "grossly unqualified" based on acquaintance with complainant

People v Dukes, 2007 NY Slip Op 03758 [available here]

The trial court erred in dismissing a sworn juror over the defendant's objection. "[A] Court may not dismiss a sworn juror unless it has determined that he or she is 'grossly unqualified to serve in the case'--that is, only 'when it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict.'" (Dukes, 2007 NY Slip Op 03758.) In Dukes, a juror revealed mid-trial that she knew the complainant, but assured the trial court that she was "100 percent sure" that she could be fair and impartial. The trial court replaced the juror with an alternative anyway, without first determining if she was grossly unqualified to serve. "On this record, the juror's dismissal was improper, and thus defendant is entitled to a new trial. The court failed to determine that juror number three was grossly unqualified--or indeed, unqualified at all." (Id. at __.)

UPDATE: Nicole over at Sui Generis tackles the remaining decision from the Court of Appeals' latest packet (People v Castillo, 2007 NY Slip Op 03795) here.

AD1: Decisions for May 1 & 3, 2007

Evidence of third-party fluid in rape victim's underwear properly excluded

People v Thomas, 2007 NY Slip Op 03775 [available here]

On trial for rape, Mr. Thomas offered evidence to show that "an amylase stain found on the victim's underwear contained DNA from an unidentified man other than defendant." (Thomas, 2007 NY Slip Op 03775.) The trial court refused to allow the evidence, and the First Department affirmed. The Court reasoned that since "it was undisputed that the victim's underwear had been removed prior to the sexual attack and that she never put it back on", Mr. Thomas could not have been the fluid donor and the evidence of third-party amylase was irrelevant. (Id. at __.) Since the third-party evidence had no probative value, the Supreme Court's decision in Holmes v South Carolina (547 US 319 [2006])--holding it was error for the trial court to preclude probative evidence a third-party culpability even in the face of overwhelming trial evidence of guilt--was not implicated.


Just the facts, officer (at least when defense counsel is doing the questioning)

People v Cestalano, 2007 NY Slip Op 03782 [available here]

Usually in a drug case, police officers are allowed to give an "expert" opinion on almost anything, be it the import of drug packaging, the significance of the recover of certain amounts and denominations of money--you name it, a narcotics officer can opine on the relative importance of most evidence in a drug case. This drives me nuts. So it warmed my heart to see the First Department hand down a decision curbing this "expert cop" free-for-all. "The officer's subjective opinions on the 'importance' of prerecorded buy money were not relevant and the court properly directed counsel to only ask questions that would elicit the facts of the case." (Cestalano, 2007 NY Slip Op 03782.)

Of course, the buy money in Cestalano was not recovered, and it was defense counsel who was questioning the narcotics officer about his opinion on the significance of the absence of the buy money. But I am sure the prosecutor would have been similarly constrained to eliciting "the facts of the case" from the narcotics officer on direct examination. And I am positive that the First Department would have reversed the defendant's conviction if the prosecutor had asked the officer to give his opinion about the relative importance of the evidence.

Umm . . .never mind. (People v Lopez, 288 AD2d 118, 119 [1st Dept 2001] ["The court properly exercised its discretion in admitting expert testimony on street-level narcotics transactions. The expert testimony was not based on speculation and was relevant to explain defendant's role in the transaction and the absence of drugs or pre-recorded buy money on defendant's person when arrested"]; See People v McNair, 26 AD3d 245 [1st Dept 2006] ["While the court should have provided limiting instructions at the time expert testimony was received regarding the practices of narcotics sellers, we find no basis for reversal"]; People v Rojas, 15 AD3d 211, 212 [1st Dept 2005] ["the court properly exercised its discretion in permitting the observing officer to give expert testimony concerning the roles of participants in street-level drug sales"].)

AD3: Decision for May 3, 2007

Evidence establishing "dangerous speeding" sufficient to sustain criminally negligent homicide conviction

People v Cabrera, 2007 NY Slip Op 03798 [available here]

Three passengers in Mr. Cabrera's car were killed when "defendant lost control of the vehicle while negotiating a curve and dip in the roadway at the bottom of a hill, partially cross into the left lane and then skidded off the road," striking a telephone pole and a tree. Mr. Cabrera was driving about 70 miles per hour in a 55 zone, and "there was a hazard sign with a recommended speed limit of 40 miles per hour" for the curve. (Cabrera, 2007 NY Slip Op 03798.) A jury convicted Mr. Cabrera of criminally negligent homicide.

On appeal, Mr. Cabrera argued that "evidence of this speed alone is not legally sufficient to sustain the charges of criminal negligent homicide . . . and that the record contains no further admissible evidence with respect to" that charge. (Id. at __.) While agreeing that proof of speed in excess of the posted limit, standing alone, would not be enough to establish criminally negligent homicide, the Third Department found the other proof at trial (i.e. crossing the center line, ignoring the hazard sign), in connection with the evidence establishing the speed of defendant's car at about 70 miles per hour at the time of the crash, was "sufficient to establish 'dangerous speeding' and to sustain defendant's convictions of criminally negligent homicide and assault." (Id.)

CA: 1,000 words are worth a picture

People v Kozlow, 2007 NY Slip Op 03592 [available here]

The defendant in Kozlow was convicted of disseminating indecent materials to minors in the first degree. To be guilty under the statute, a defendant must disseminate indecent materials to a minor and use the communication to convince the minor to engage in sexual contact with the defendant. (Kozlow, 2007 NY Slip Op 03592.) To fall within the statute, the electronic communication must "depict" nudity or sexual conduct. (Id. at __.)

The defendant in Kozlow sent emails to an investigator posing as a minor. The emails described, in writing, various sexual acts. (Id. at __.) No pictures were sent. On appeal, the defendant argued that, since the emails did not include pictures, the messages did not "depict" sexual acts. The Court of Appeals (in a majority opinion by Judge Pigott) disagreed. While noting that the word "depict" has its origins in a Latin word meaning "to paint", and that one definition is "to represent in a picture", "the word 'depict' also has a standard sense of 'to represent or portray in words' and it has been used in that manner since the colonial era." (Id. at __.) "Defendant's argument . . . that the Legislature was seeking to criminalize the luring of a child into a sexual encounter by transmission of visual images, while leaving a loophole allowing a predator to lure a child into sex through transmission of words alone, falls of its own weight." (Id. at __.)

Justice Smith dissented, and would have interpreted "depicts" in its common, narrow sense; "to represent by a picture." (Kozlow, 2007 NY Slip Op 03592 [SMITH, J., dissenting].)

AD4: Decisions for April 20, 2007

People v Garrison, 2007 NY Slip Op 03367 [available here]

A majority of the Court voted to reverse Mr. Garrison's conviction for depraved indifference murder in the interest of justice, noting "the trial evidence establishes defendant's use of a weapon with a 'manifest intent to kill' the victim, thus negating the essential elements of recklessness and depraved indifference and rendering the evidence legally insufficient to support a conviction of depraved indifference murder." (Garrison, 2007 NY Slip Op 03367 at __.)

Justices Smith and Lunn dissented. First, they would not have reached the issue in the interest of justice. Second, they would have found the evidence legally sufficient to sustain Mr. Garrison's depraved indifference murder conviction. The dissent notes "[t]here is no indication that defendant had any animosity toward decedent" (except the fact that defendant shot decedent in the head from point-blank range) and "[w]ithout provocation, defendant raised a gun, which discharged, and the projectile struck decedent in the head." (Id. at __.) "In addition, in light of the confined quarters in the foyer and the number of people there, it was unquestionably reckless to brandish a loaded weapon." (Id. at __.) On that last score, the dissenters are arguably correct; as to all of the other people in the room, defendant acted recklessly. As to the guy he shot point blank in the head, it is hard to see how defendant acted other than intentionally. A strange dissent.


People v Martinez, 2007 NY Slip Op 03383 [available here]

Mr. Martinez was "forcibly detained" because he matched the description of a robber, he was 1 1/2 blocks from the robbery scene, and he "was sweating and breathing hard." (Martinez, 2007 NY Slip Op 03383.) A roll of coins was found in defendant's pocket, and he later gave a statement to the police. (Id. at __.) The trial court refused to suppress the coins and the statement, reasoning that they "were the products of a lawful arrest." (Id. at __.) The Fourth Department took the unusual step of substituting its own judgment in place of the lower court's, and concluded that defendant was not under arrest but rather "forcibly detained." According to the Court, the police "had reasonable suspicion to believe that he was involved in the robbery and thus were entitled to detain him for purposes of a showup identification procedure." (Id. at __.)

This is a dangerous (but all-too-common) shortcut in the Court's Fourth Amendment analysis. The police are only entitled to "detain" someone for purposes of a showup if the detention is substantially less intrusive than full custody. The test for custody is whether a reasonable, innocent person in defendant's position would feel free to leave. In this case, defendant was handcuffed even after the police determined that he was not armed, and there is not indication from the decision that the defendant was anything less than cooperative or that the police explained that they were detaining him for purposes of conducting a quick showup identification. Given that, it would seem a reasonable, innocent person in the defendant's position, i.e. a person who is presumably cooperating, is not armed, did not attempt to flee, and who is nevertheless handcuffed and locked in the back of the police cruiser without explanation, would not feel free to leave. (See e.g. People v Hicks, 68 NYd 234 [1986].) The Fourth Department does not even mention the test for custody, and instead collapses the analysis down to reductive algebra; if the defendant is ultimately detained only briefly and a showup is conducted, any detention--no matter how intrusive--will be consistent with the Fourth Amendment.

People v Jones, 2007 NY Slip Op 03391 [available here]

The defendant in Jones was stopped based on a "noise ordinance" violation. As the officer reviewed the defendant's license and registration, the officer "observed defendant reach toward the passenger side of the vehicle, and they feared that defendant was retrieving or concealing a weapon." (Jones, 2007 NY Slip Op 03391.) The police took Jones out of the vehicle, and proceeded to toss his car; the officers searched not only the front passenger area (i.e. the area where Jones was grabbing for what the police thought might be a weapon), but also the back seat. The police found nothing in the front seat, but found a scale with some crack residue on it in the back seat.

The Fourth Department held that the officer's search exceeded the justification that existed. "Under those circumstances, the police were justified in conducting a limited search of those parts of the vehicle in which they had observed defendant's furtive movements, i.e., the front passenger area and center console. The search should have ended, however, when the police found no weapon or contraband in the front passenger area and center console." (Id. at __.)

People v Martin, 2007 NY Slip Op 03444 [available here]

Then 17-year old Jovan Martin asked to speak to his grandmother while being interrogated by a Rochester police investigator. The investigator told Mr. Martin that he could speak with his grandmother when the interrogation was over. On appeal, Mr. Martin argued that the police were not at liberty to ignore his request to contact his family, and by doing so the police deliberately cut off the avenue by which Mr. Martin was most likely to obtain counsel. The Fourth Department affirmed, holding that because Mr. Martin was legally an adult he had no right to have police present, and that suppression is only required if "the isolation result from official deception or trickery." (Martin, 2007 NY Slip Op 03444.) The Court is wrong on both scores.

The first part of the Court's analysis misses the point; Mr. Martin was not arguing that he had the constitutional right to have grandma ride shotgun for the interrogation. Rather, Mr. Martin's argument was based on the premise (expressly embraced by the Court of Appeals) that a youthful suspect's request to contact family is the equivalent of a request for an attorney because a young person will view his family as the best way to go about securing counsel. (See Bevilaqua, 45 NY2d 508, 513 [1978].)

The second part of the Court's analysis--grafting on some requirement of chicanery by the police--imports caselaw that is only applicable to a very different factual scenario. If the defendant does not request to speak with his family, but the family shows up anyway and requests to see the defendant, the police are under no obligation to cease questioning if the defendant is legally an adult. (People v Lewis, 277 AD2d 1010 [4th Dept 2000].) However, if the police lie to the family members--by telling them the police don't have the defendant in custody, or sending the family to a different precinct--then suppression is appropriate even if the defendant never asks to consult with his family. (See Page, 225 AD2d at 833; Salaam, 83 NY2d at 55.)

The facts of Martin are very different; the suspect himself asked to call his family. The Court of Appeals has been quite clear that the police are not at liberty to simply ignore a youthful suspect's request to contact family. (See Bevilacqua, 45 NY2d at 513 [suppressing then 18-year-old's statement where defendant requested to contact his mother during interrogation and that request was denied].) The Fourth Department ignores Bevilacqua, and instead imports a requirement from Salaam and Page--requiring some sort of trickery where it is the family trying to contact the suspect--and clumsily applies it to a factual scenario it was never intended to cover.

People v Owens, 2007 NY Slip Op 03500 [available here]

At defendant's hearing to determine if he was a persistent violent felony offender, a fingerprint examiner testified that he compared defendant's known prints to those on file with NYSDOCs and the prints matched. The fingerprint examiner took notes while conducting the comparison, but threw them in the trash before testifying. The trial court imposed no sanction, and the Fourth Department reversed. "Here, the notes were the only written record of the 10 points of similarity between the various sets of fingerprints and were the only means by which defendant could effectively cross-examine the fingerprint examiner. Defendant thus was prejudiced by the destruction of the notes, and the court erred in failing to impose any sanction." (Owens, 2007 NY Slip Op 03500.)

CA: Decisions for April 3, 2007

People v Havrish, 2007 NY Slip Op 02787 [available here]

Pursuant to an order of protection, the defendant in Havrish was required to surrender his firearms to police. (Havrish, 2007 NY Slip Op 02787.) Defendant complied with the order and turned over his guns; one of the handguns was not licensed, and defendant was ultimately charged with criminal possession of a weapon in the fourth degree. (Id. at __.)

The defendant argued that his Fifth Amendment right against self-incrimination covered the act of turning over the weapons, and the Court of Appeals (in a decisions written by Judge Graffeo) agreed. While acknowledging that "a person can be forced to produce real or physical evidence without offending the privilege against self-incrimination," the Court nonetheless held that in Havrish's case "the very act of production ha[d] communicative or testimonial aspects." (Id. at __.) "The statements defendant made — advising police that he owned a revolver and indicating where it was — went no further than what a person complying with such an order would have been expected to communicate. They were therefore central to and part of the act of production. And that act was the exclusive source of evidence the People relied on in pursuing the prosecution for criminal possession of a weapon." (Id. at __.)

CA: Decisions for March 27 & 29, 2007

People v LeGrand, 2007 NY Slip Op 02588 [available here]

The Court holds that the trial court's refusal to allow the defense to put on an expert witness to testify about the reliability of eyewitness identification was an abuse of discretion where the "case turned solely on the accuracy of the witnesses' identification." (LeGrand, 2007 NY Slip Op 02588.) If there is other corroborating evidence beyond the eyewitness testimony, then a defendant is probably out of luck. "In the event that sufficient corroborating evidence is found to exist, an exercise of discretion excluding eyewitness expert testimony would not be fatal to a jury verdict convicting defendant." (Id. at __.) Not sure how this squares with Holmes v South Carolina, 2006 WL 1131853 ["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.'"].)

People v Rowland, 2007 NY Slip Op 02630 [available here]

It is well-settled that a defendant is "entitled to withdraw his guilty plea where the plea had been induced by a promise that the defendant's prison sentence would be concurrent with his sentence on a previous conviction and where, because the previous conviction was overturned, the promise could not be kept." (People v Rowland, 2007 NY Slip Op 02630 [available here].) Usually, the prior sentence is longer than the guilty plea sentence, and the reason the defendant pleads guilty is because the promise of a concurrent sentence means no additional jail time. But what if the guilty plea sentence is the longer of the two? Not dispositive, says the Court of Appeals; "the rule of Pichardo applies even where the second sentence is longer, and thus the promise of concurrent sentencing does not mean that no additional time will result from the guilty plea." (Id.) "The critical question is whether the removal or reduction of the pre-existing sentence nullified a benefit that was expressly promised and was a material inducement to the guilty plea . . . here, we cannot say defendant would have accepted the plea bargain in the murder case had it not been for his two-to-four-year sentence in the stolen property case, now reduced to a year." (Id. at __.)

Judge Graffeo dissented, reasoning that the Pichardo should not apply because "there is ample record support for the conclusion that defendant would have accepted the plea offer even if he had not been previously convicted of criminal possession of stolen property." (Id. at __ [GRAFFEO, J., dissenting.)

AD3: Decisions for March 8 & 15, 2007

All's quiet in Albany. Two decision packets, one notable decision.

People v Mccloud, 2007 NY Slip Op 10991 [available here]

Defendant appealed from an Order served on him March 30, 2006. Instead of filing a regular notice of appeal, the defendant asked the Third Department directly for permission to appeal. This request was made on April 24, 2006, i.e. within the 30 day period to file a notice of appeal. (Mccloud, 2007 NY Slip Op 01991.) The Third Department denied his request "because he was entitled to take an appeal as a matter of right." (Id. at __.) But by now defendant's time to file a notice of appeal had expired, and his notice of appeal was not filed until May 15, 2006. The Third Department allowed the appeal; "[u]nder the unusual circumstances of this case, we will deem defendant's motion for leave to appeal as a notice of appeal." (Id. at __.)

AD2: Decisions for March 6 & 13, 2007

People v Lampon, 2007 NY Slip Op 02140 [available here]

The Second Department held the defendant's challenge to the sufficiency of the evidence to support his depraved indifference murder conviction was not properly preserved where trial defense counsel argued only that the count should be dismissed because "the defendant's conduct was not consistent with 'recklessness.'" (Lampon, 2007 NY Slip Op 02140.) "There was evidence of intoxication presented at trial which the jury could have found negated the defendant's intent to kill without negating the defendant's reckless state of mind." (Id. at __.) Trial defense counsel did not go on to argue that the defendant lacked the required "depraved indifference" mens rea, and the Second Department declined to reach the issue in the interest of justice. (Id. at __.)

People v Benson, 2007 NY Slip Op 01891 [available here]

People v Sebastian, 2007 NY Slip Op 01903 [available here]

The Second Department continues to give defendants specific performance of their plea terms; if no postrelease supervision is discussed at plea or sentencing, then the postrelease supervision is not part of the sentence and the defendant does not have to comply with it. (Benson, 2007 NY Slip Op 01891 ["Neither the sentencing minutes nor the court's order of commitment mentioned the imposition of any period of post-release supervision. Therefore, the sentence actually imposed by the court never included, and does not now include, any period of post-release supervision."].) The Fourth Department's decisions in this area are different; if postrelease supervision is mandatory, then failure to impose the postrelease supervision at sentencing renders the sentence illegal and the appellate court is bound to vacate the sentence and remand (even if none of the parties on appeal request such relief). (See, e.g., People v Davis, 2007 NY Slip Op 00929.)

People v John, 2007 NY Slip Op 01896 [available here]

The trial court should have reopened the suppression hearing where the officer testified at suppression that a skimask was found only after defendant was identified by an eyewitness, but at trial the witness testified that the officer showed her the skimask before she made the identification. (John, 2007 NY Slip Op 01896.) The fact that another judge presided over suppression did not make the suppression decision the "law of the case", and the hearing should have been reopened because the witness' trial testimony "directly implicated the hearing court's finding of probable cause, and raised more than a question of credibility." (Id. at __.)

AD1: Decisions for March 6, 8, 13 & 15, 2007

All is quiet down at the First Department. Four packets, two notable decisions. Here they are.

People v Wilder, 2007 NY Slip Op 02024 [available here]

After responding to a reported street fight, a police officer took one of the fight participants aside and had him drop the two black plastic bags he was holding. The officer then looked inside the bags. The First Department upheld the search; "[t]his minimal intrusion was not unlawful, but justified by the officer's founded fear that the bags may have contained a dangerous instrument." (Wilder, 2007 NY Slip Op 02024.)

People v Gatling, 2007 NY Slip Op 01811 [available here]

The Court held that a suspect was not under full de facto arrest despite "the fact that the police detained defendant at gunpoint and used handcuffs [...]." (Gatling, 2007 NY Slip Op 01811.) The stop was a so-called "investigative detention", and the use of guns and handcuffs was "fully justified . . . as a precautionary measure during the brief period in which the police awaited the arrival of the victim." (Id. at __) No discussion of whether a reasonable, innocent person would feel free to leave upon being handcuffed at gunpoint.

AD4: Decisions for March 16, 2007

Sorry for the brief hiatus. Occasionally, life and work demands intrude on my blogging time. I am going to go out of chronological order and post on the new Fourth Department decisions, with the intent to go back and post on the other Departments' decisions when time permits.

People v Stroman, 2007 NY Slip Op 02388 [available here]

The Fourth Department granted defendant's writ of error coram nobis based on appellate counsel's failure to "raise an issue on direct appeal that would have resulted in reversal, specifically, in failing to argue ineffective assistance of counsel." (Stroman, 2007 NY Slip Op 02388.)

People v Loper, 2007 NY Slip Op 02168 [available here]

The majority (in a memorandum opinion) ordered the defendant's sentences for Burglary in the Third Degree (Penal Law 140.20) and Unauthorized Use of a Vehicle in the First Degree (Penal Law 165.08) to run concurrent, apparently because an element of the latter crime is that the vehicle be taken "with the intent to use the same in the course of or the commission of" a felony, and therefore the Burglary 3rd was a necessary element of the Unauthorized Use of a Vehicle 1st. (Loper, 2007 NY Slip Op 02168.) Justices Scudder and Green dissented, noting that the actual commission of the underlying crime (here a Burglary 3rd) is not required to establish Unauthorized Use of a Vehicle 1st, but rather the "individual's intent to use the vehicle in such manner is all that is required." (Id. at __.)

People v McCullough, 2007 NY Slip Op 02184 [available here]

The Fourth Department reversed defendant's conviction in the interest of justice where a police witness bolstered the lineup identifications of the only two eyewitnesses to the bank robbery and "[t]he sole contested issue at trial was the identification of the perpetrator, and the evidence of identification is not overwhelming." (McCullough, 2007 NY Slip Op 02184.) I was the attorney on appeal for Mr. McCullough, and I was surprised by this decision because the main issue on appeal was ineffective assistance of counsel. Defense counsel fell asleep at key points of the trial, failed to request a Wade hearing to challenge the eyewitness identification evidence, and elicited damaging testimony from the People's witnesses during cross-examination. The unpreserved bolstering issue was a bit of an afterthought, both in the brief and at oral argument. I guess it never hurts to give the Court another hook to hang its hat on just in case there is reluctance to reverse on your main point.

People v May, 2007 NY Slip Op 02223 [available here]

The trial court erred in failing to charge the jury on the affirmative defense of entrapment. Defendant was a prisoner charged with Criminal Possession of a Weapon in the Third Degree. The weapons at issue were procured by the defendant after he agreed to round up illegal weapons for a correction officer in exchange for television privileges. Based on that evidence, entrapment should have been charged because the jury could have found that defendant was encouraged to possess the weapons and would not have possessed the weapons if not encouraged to do so by the correction officer. (May, 2007 NY Slip Op 02223.)

People v Austin, 2007 NY Slip Op 02224 [available here]

Police had reasonable suspicion justifying the pursuit of defendant where the defendant was one of many young men hanging out on "the porch of a house known to be occupied by elderly people", a "high traffic" of people came and went from the porch, one man in the group admitted to possessing marijuana upon questioning by the police, a bag of marijuana was "recovered", and defendant "fled the scene when the officer asked to speak with him [...]." (Austin, 2007 NY Slip Op 02224 at __.)

People v Manor, 2007 NY Slip Op 02239 [available here]

The Court held defendant's sentence for Criminal Possession of a Weapon in the Second Degree must run concurrent with the sentence on the murder conviction because there was no "evidence that defendant intended to use his weapon unlawfully against another apart from its use in the shooting [...]." (Manor, 2007 NY Slip Op 02239 at __.)

People v Chatman, 2007 NY Slip Op 02273 [available here]

The Fourth Deparmtent held the trial court should have suppressed defendant's statement. Although the facts are not recited in the court's opinion, I was Mr. Chatman's attorney on appeal and can fill in the blanks. The police tried to pull Mr. Chatman over for a seatbelt violation. A low-speed chase ensued. Mr. Chatman ditched the car and took off on foot, and was eventually brought to the ground and handcuffed by the police. The chasing officer immediately asked Mr. Chatman why he was running. I argued that Mr. Chatman was in custody (because he would not feel free to leave after being chased down, tackled and handcuffed), and the officer's question (essentially "why did you run?") was interrogation because it was an invitation to explain whatever criminal conduct prompted the flight and was thus likely to elicit an incriminating response. The Fourth Department agreed "that the court should have suppressed the statement", but found the error harmless. The Court also agreed that the trial court erred in refusing to charge the jury "with respect to the voluntariness of the statement", but found that error harmless, too.


People v Black, 2007 NY Slip Op 02274 [available here]

The Fourth Department reversed defendant's rape conviction and dismissed that count of the indictment where the indictment charged defendant with one act of rape on a certain date and the evidence at trial established two separate completed rapes happened that day. (Black, 2007 NY Slip Op 02274.) An interesting note here: the Fourth Department found the issue unpreserved, but reached it in the issue of justice. This is a subtle but important shift in the preservation requirements for an issue like this. Traditionally, the Fourth Department has not imposed a preservation requirement for this type of error. (See People v McNab, 167 AD2d 858.)

People v Lemon, 2007 NY Slip Op 02296 [available here]

The defendant's sentences for Robbery 1st must run concurrent to the murder sentences where "the act constituting each count of intentional murder, i.e. stabbing the victims, is the same act that caused the serious physical injury for purposes of each robbery conviction." (Lemon, 2007 NY Slip Op 02296.)

People v Lunetta, 2007 NY Slip Op 02304 [available here]

The Fourth Department found the evidence in support of defendant's conviction for Assault 2nd--that the victim had a bump on her head, a bruise on her arm and two swollen fingers--was legally insufficient. The evidence was "legally insufficient to establish that the victim suffered either 'impairment of [a] physical condition' or 'substantial pain.'" (Lunetta, 2007 NY Slip Op 02296.)

People v O'Neal, 2007 NY Slip Op 02305 [available here]

I have a soft spot for this case. I was the attorney for Mr. O'Neal on appeal, and I argued that the evidence was not sufficient to support my client's conviction for possessing an imitation controlled substance (i.e. fake crack) because, while the officer field tested the crack-like substance found in Mr. O'Neal's pocket and the results were negative, the negative results were not confirmed by a formal laboratory analysis. There is good case law that holds a positive field test, standing alone, is not sufficient to establish that drugs are real. My argument was that the same is true in reverse, i.e. a negative field test could not be enough to establish that my client had fake crack and not the real thing.

I think the Court might have agreed with me, except for the fact that a drug addict had sampled my client's wares immediately prior to my client's arrest, and in the addict's opinion the substance tasted like wax and was not real crack. The Fourth Department held that the combination of the addict's testimony and the negative field tests was enough to establish that the substance was fake crack. (O'Neal, 2007 NY Slip Op 02305.)