Selected Criminal and Family Law Decisions From the First Department

By Janet Somes:

From January & February, 2008

CRIMINAL LAW

People v Stephens, 47 AD3d 586 (decided Jan. 31, 2008)
Lower court order of suppression of evidence reversed (ouch). Defendant was taking a walk in area where there had been some robberies. One hand was swinging while his other hand was still, near his waistband. Defendant “apparently noticed the officers” but kept looking straight ahead “as if he was very nervous or had seen a ghost”. When cops got out of car D ran and cops caught him, but not before he threw gun under a car (and some drugs too). Lower court’s finding that D’s behavior was innocuous, and reasonable suspicion lacking, was wrong, as First Dept explained that cop had suspicion that D carrying a gun based upon the way he was walking, and that suspicion was heightened when he ran away before cops could ask him questions.

People v Inglasis, 47 AD3d 593 (decided Jan. 31, 2008)
In burglary trial, it was not ineffective, or otherwise prejudicial for defense counsel to elicit from detective that he “believed” defendant had been arrested for prior robberies, given that the court immediately “struck” the testimony.

Matter of Elvin G., 47 AD3d 527 decided Jan. 29, 2008)
Search issue in JD proceeding. Lower court denied suppression without hearing on ground of factual inadequacies in allegations. Affirmed. Dean of school, responding to teacher reporting an electronic noise, possibly from a cell phone, had all students stand and started “checking” their pockets. D then took a hunting knife out of his pocket and held it in open view. First Department held there was not search, and even if there was, it was reasonably tailored to be least intrusive, most effective means of finding the offending cell phone. Only an issue of law here, which was resolvable on allegations, and no reason to remand for more proof as dissent would have done.
*DISSENT (2 judges): Was the Dean’s actions the least intrusive and most effective means? Send it back for a hearing on that issue. Also, court below failed to apply correct legal standard to this search. No showing that the suspected cell phone presented any kind of threat to safety or educational process, justifying a warrantless search. Also, family court found Dean’s actions necessary to restore order to classroom, but allegations suggested this was a substantial invasion not warranted by a ringing cell phone, which had stopped ringing by the time of the search. There were factual disputes to be resolved.

People v Packman, (January 29, 2008)
Denial of suppression reversed and indictment dismissed in well written decision. Police were looking to arrest driver of vehicle (not D) on forgery charges. They stopped car driven by suspected forger, and told passenger (D) to stay in car and keep hands in sight. D tried to exit vehicle and tried to walk away, but police stopped him. D then told to get out of car. D frisked and a small knife taken out of his pocket. Police asked for ID and D told them it was in his backpack. Police asked if they could open backpack it to get ID. A knife, which was the basis of the CPW conviction, was found in backpack. Not only was frisk illegal, but Court rejects theory that search of backpack was result of benign request and consent. People failed to meet their high burden to show consent was unequivocal product of an essentially free and unconstrained choice. People’s burden under these facts is “insuperable”.
*DISSENT: Consent valid, finding attenuation.

People v Rouse, 47 AD3d 637 (January 29, 2008)
Denial of 30.30 motion affirmed. Pre-trial readiness period of 30 days properly charged to Defendant as time without counsel, notwithstanding that the court had assigned counsel. Court assigned attorney who was in another court. There had been no request by counsel for an adjournment or consent to one. Since counsel had just been assigned and had no knowledge of the case, defendant was still without counsel within the meaning of the statute, according to the court. As to post-readiness delay, six weeks was reasonable for DA to respond to motions and provide Grand Jury minutes.

People v Harrison, 47 AD3d 541 (January 29, 2008)
Burglary third conviction affirmed. Although unpreserved, the issue of whether a van is a building is resolved against D, as the van at issue was an "inclosed motor truck," and it met the definition of a "building" under Penal Law § 140.00 (2) and § 140.20 .

People v Nunez, 47 AD3d 545 (January 29, 2008)
Order granting 30.30 dismissal affirmed. People’s statement of readiness as to challenged time period was equivocal, and held against them. DA told the court that they may not be ready on the trial date of April 17th because the DA may need to try another case that day, and suggested a date of May 2. The time between April 17 and May 2 goes against the DA.

People v Allen, 47 AD3d 543 (January 29, 2008)
CPL 440.30 (1-a) does not permit a D who has pled guilty to seek DNA testing.

People v Collado, 47 AD3d 547 (January 29, 2008)
Police had probable cause where unidentified complainant pointed out D and his companions as guys who tried to rob him. As police approached, men took “evasive” action and one (not D) pulled out “air gun” which resembled firearm. That provided probable cause to arrest and remove D to station. Although police could not find the unidentified complainant of alleged initial robbery, while at station D was conveniently identified by a witness of a different robbery, which resulted in present conviction. No one is bothered that the original unidentified complainant disappeared. Also, on PSR sentencing issue, resort to court documents (worksheet and commitment) will permit the imposition of a mandatory PRS period, where court failed to mention it during sentence (Okay, in light of the Court of Appeals decision in People v Sparber. __ NY3d __ (4/29/08) we know that this part of the decsion is wrong).

People v Holman, 46 AD3d 518 (January 24, 2008)
Court was within its discretion to permit juror to submit written questions for the witness, some of which it struck as improper, and others of which it permitted the witness to answer. Also, counsel consented to both procedure and specific questions asked, so current complaint regarding those issues was waived.

People v Davis, 47 AD3d 506 (January 22, 2008)
Refusal to charge lesser included robbery charge affirmed. Victim testified D displayed what appeared to be a firearm and there is no reason to selectively discredit this one portion of V’s testimony to charge down to a robbery third. Also, accomplice testified he heard D threaten to use gun.
*DISSENT: Jurors could have rejected accomplice’s testimony given the proof which showed no gun, and his failure to mention his current claim about D’s threat to use gun before.

People v Shemesh, (January 15, 2008)
Lower court correctly dismissed indictment (with leave to re-present) for failure to offer D a reasonable opportunity to testify before the GJ. Notice of D’s desire to testify clearly served, as was notice that he would not be able to testify during Passover dates. Although three dates were discussed for D to testify, DA eventually only offered a date when D was observing Passover. People had argued that (1) there is no valid religious reason he could not testify during Passover as attested to by a Rabbi, and (2) D did other things during that time which showed maybe he was not all that devout. First Dept would not even go there. Statutory right to testify conflicted with right to exercise religion, and D was diligent and persistent in trying to schedule a date that did not conflict.
*DISSENT: takes issue with majority’s conclusion that D did not testify on two days before Passover began due to no fault of his own.

People v Jean-Pierre, 47 AD3d 445 (January 10, 2008)
Lower court order of suppression of evidence reversed (ouch again). Arresting officer erroneously believed that a “03" sticker on D’s New Jersey License plate meant that the registration had expired in 2003. Upon stopping car, officer got a whiff of weed and saw some baggies of the stuff. His belief about the registration was reasonable, and it was a error of fact not law. Therefore he was justified in stopping the car.

People v Thomas, 47 AD3d 415 (January 3, 2008)
Conviction reversed and new trial granted. Retained counsel was properly relieved by court over D’s objection. But, court should have provided D a reasonable opportunity to retain new counsel, instead of assigning counsel chosen by the court. D made clear that if the court was going to relieve his first attorney, he wanted to hire a new one of his own choosing. Reversal would also be required by the trial court’s improvident exercise of discretion in refusing to order a CPL 730 examination as requested by new counsel. It had been over a year since the last one and there were strong indications a new exam was needed.

People v Mobley, 48 AD3d 374 (Feb 28, 2008)
Lower court order of suppression affirmed. Even though there was testimony that area was high crime area known for drugs and prostitution, there was no indication of such with regard to the lawfully parked car containing a female and male, which police approached, for no objective, credible reason, requesting information about the reason for their presence. Even if first inquiry justified, nothing about response served to elevate level of suspicion, there was no reason for second approach. Gun in plain view, seen during second approach, suppressed. Court did not buy DA’s argument that second approach was just a continuation of first approach.

People v Graham, 48 AD3d 265 (Feb 14, 2008)
Two counts reversed because court below erred in denying suppression of statements. D given Miranda by one cop, and 8 hours later he told a different cop he did not want to talk. Without re-administering Miranda, second cop told D there was evidence linking him to crime and D confessed. Questioning should have seized after D said he did not want to talk. Error harmless as to other counts.


FAMILY LAW

Matter of Kalya, 47 AD3d 571 (decided Jan. 31, 2008)
Neglect (mental illness) determination affirmed. Mother’s behavior of poor impulse control and poor insight was found by the majority to constitute judgment so strongly impaired as to expose the child to risk of substantial harm as to sustain a finding of neglect. Mother’s mental health challenges included depression, inability to cope, tearfulness to the point of inability to communicate, and anger flare-ups. From the evidence doctors concluded a concomitant inability to care adequately for the child. These opinions and observations were based upon a one week period.
* DISSENT (2 judges). Of the two doctors who testified, neither had observed mother long enough to make mental illness diagnosis (2 hours by one, and 1 week following trauma of miscarriage by the other.) Evidence did not show anything more than a physically exhausted mother who had just suffered a miscarriage and had who momentarily “lost it”. Inadequate evidence of neglect due to mental illness. Also, there was a good reason for mother to become angry with the doctor - - he lied to her and tricked her into thinking she was being sent to a place for a “rest” due to exhaustion, only to learn she was being sent to hospital where she was held for evaluation. Second doctor diagnoses of depression was not shown to cause risk to child. Even if there was proof of mental illness, causal connection between condition and risk of harm not established as there needs to be a substantial probability of neglect resulting in risk to child.

Matter of Joshua R., 47 AD3d 465 (January 15, 2008)
Family Court ordered modified and finding of abuse and derivative abuse vacated (neglect and derivative neglect affirmed). After child refused to eat, father forced food in his mouth causing him to vomit, and slapped child causing a bloody nose and black eye. Neglect and derivative neglect (as to sister) were affirmed. Court noted that there was evidence that father did not believe his striking child was excessive, and the evidence did not support a finding that father inflicted an injury to child "which cause[d] or create[d] a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ" (Family Ct Act § 1012 [e] [I]).
*DISSENT: Other evidence shows father had uncontrolled anger and which creates a substantial risk of the requisite harm.

Matter of Jeffery C. (January 10, 2008)
Family Court adjudication of JD modified with PINS adjudication instead. Isolated incident was basis for the JD. The JD adjudication was not the least restrictive available alternative to meet needs of child and community.

Matter of Medina Armor S. (January 10, 2008)
Family Court termination of parental rights reversed, where court inappropriately found incarcerated father abandoned child. Father in prison on murder conviction, with earliest release date in 2016, and drug addicted mother’s whereabouts unknown. Agency took children to prison once to visit father 4 years before bringing termination petition. Petition alleged failure to communicate or visit for 6 months prior to time petition brought. Caseworker testified that she did not contact father directly, and that she did not know she could. (Family court schooled her on her obligation to communicate directly with incarcerated parent.) Evidence showed agency made no efforts to assist in communication. Right before petition filed, an inmate advocacy group contacted agency to arrange visit with father. “Although the court found respondent had abandoned the children, what it really did was take the easier route to termination of parental rights by improperly applying the ‘permanently neglected child’ element of ‘insubstantial contacts’ (Social Services Law § 384-b[7]) rather than the ‘abandoned’ child standard (§ 384-b[5])”, noting these subdivisions are designed to accomplish two different goals. No abandonment on these facts. Good decision.

Some Recent Decisions From the Second Department

From Jim Eckert:

People v Russell , 47 AD3d 732 - Defendant, charged with CPW3, claimed temporary lawful possession. The court ruled that the trial court failed to make clear in the jury instructions that the People had to disprove this claim beyond a reasonable doubt, especially in light of the trial court’s failure to adequately marshal the evidence. Answering a jury question on the issue still failed because “the proper standard regarding the burden of proof was not clearly and unequivocally conveyed.” The court apparently went beyond the CJI as well. If the rule on appeal is that the People’s burden "must be clearly and unequivocally conveyed", it would represent a significant improvement over the typical standard, which is whether the charge, taken as a whole, conveys the right standard. The latter test frequently results in approval of a charge which contains contradictory statements of the law. If the trial court doesn't know the law, the jury is still presumed to divine the proper standard from a confused court if it's in the charge somewhere. You'd think that the law must be "must be clearly and unequivocally conveyed", until now you'd have been wrong. You may still be wrong.

People v Gonzalez , 47 AD3d 831 - Following a robbery, the victim gave a description which was at odds in some ways with the defendant’s characteristics. The defense attempted to introduce expert testimony, which was denied without a Frye hearing. The court, citing People v LeGrand (8 NY3d 449) reversed based on the trial court’s refusal to permit the introduction of expert testimony on the reliability of ID testimony.

People v Romeo , 47 AD3d 954 - D “killed [the victim]” in 1985. He agreed to surrender in 1987, but instead fled to Canada and “killed a New Brunswick constable”. He returned to the US and was arrested a few days later. DNA was taken, implicating D, and he was indicted the same month. The prosecution agreed to permit Canada to try the defendant first, and successfully opposed the defendant’s motion to be arraigned first. Speedy trial concerns were raised at this time, and the County Court judge who denied the defendant’s motion said the People would have to live with the risks they were taking. D was convicted in Canada, and the People made no effort to obtain his return. In 1999, the defendant moved to dismiss on constitutional and statutory speedy trial grounds; it was denied. The People successfully argued that the then-existing extradition treaty would have required that his Canadian sentence be commuted. The treaty was amended in 2003 and extradition was sought. In 2006 D pled to Man1 and 7-21 concurrent. He did not renew his speedy trial claim. The Second Departement ruled that his constitutional speedy trial claim was not barred because he had not abandoned it before it was decided - because it was denied in 1999. On the merits, the court held that, murder is serious, but a twelve year delay is extraordinary. That the People may have mistakenly believed that the defendant could be extradited once he was convicted in Canada “militate[s] in the People’s favor”, but not enough. Unspecified prejudice to the defendant was recited, so I am not sure if it’s the obvious, or something not mentioned. The charge was dismissed.

People v Berry , 2008 WL 803939 - Inferential bolstering lives! The People elicited testimony from a detective that a telephone/address book was recovered from one of two people who fled from the scene, and who the complainant said was not the perpetrator. The detective said he photocopied one page from this person’s phone book, and put out a “wanted card” for the defendant. “The plain implication of the detective’s testimony was that [the person with the phone book], who was not called as a witness at trial, accused the defendant of committing the instant offense (see People v Johnson , 7 AD3d 732 ...)”. The People also said, in opening, that this person knew who did the shooting and identified him to police. The defendant’s objection was poor, but the trial court’s ruling demonstrated that it confronted and resolved the issue. Because this implicated the defendant’s confrontation rights, and it was a single eyewitness case, conviction reversed.

AD 4th Dept: Selected Decisions of March 21, 2008

Reckless, But Not Depraved

In People v Bolling 2008 NY Slip Op 02654 (4th Dept 3/21/08), the Fourth Department, once again, has reduced a depraved murder conviction to that of reckless manslaughter. In this case, the Court held that the fatal shot to the decedent’s thigh
"does not warrant a finding that defendant's conduct demonstrated the utter disregard for the value of human life' necessary to support the conviction
of depraved indifference murder (People v Suarez, 6 NY3d 202, 214).”
Other cases in which the Court similarly held that the evidence was insufficient
to support a depraved murder conviction include People v De Capua, 37 AD3d
1189 (4th Dept 2007), People v Smothers, 41 AD3d 1271 (4th Dept 2007),People v Casper, 42 AD3d 879 4th Dept 2007) and People v Lawhorn, 21 AD3d 1289 (4th Dept 2005).

A General Objection Is Generally Insufficient

Reminding attorneys that a general objection is hardly any better than no
objection at all, the Court, in People v Mobley 2008 NY Slip Op 02663 (4th Dept 3/21/2008), held that

Because defendant made only a general objection to the testimony of a
police officer that there was "a point in time in [her] investigation
when [she] came up with the name of a suspect" and that the name of
the suspect was that of defendant, he also failed to preserve for our
review his contention that such testimony constituted inadmissible
inferential hearsay (see People v Piper, 21 AD3d 816, lv denied 5
NY3d 884; People v Pierre, 300 AD2d 1070, lv denied 99 NY2d 631).

Proof of Illegal Entry Insufficient to Establish Intent to Commit Larceny


In affirming a trial court’s pre-trial reduction of a burglary count to one
of criminal trespass, the Court, in People v Holmes 2008 NY Slip Op 02669
(4th Dept 3/21/2008), held that

The evidence before the grand jury, viewed in the light most
favorable to the prosecution (see People v Antonelli, 300 AD2d 312,
313, lv denied 99 NY2d 612, citing People v Manini, 79 NY2d 561), is
legally insufficient to support the burglary charge because the
indictment expressly set forth that defendant intended to commit a
larceny, and the People failed to present evidence from which the
grand jury could infer that he had that intent (see generally People
v Barnes, 50 NY2d 375, 379). Although "it is not necessary for the
People in a burglary prosecution to demonstrate the exact crime which
defendant intended to commit while unlawfully in the building . . .,
the prosecution in this case expressly limited its theory to one of
larceny, and, having done so, . . . the prosecution [is held] to this
narrower theory alone" (id.).

Insufficient Inquiry for a Valid Waiver of Appeal

People v Vega 2008 NY Slip Op 02250 (3/14/2008)

The Fourth Department holds that a single inquiry to a defendant which fails to make clear that the loss of the right to appeal is not an automatic consequence of a guilty plea is insufficient to demonstrate a knowing and intelligent waiver of appeal:

we agree with defendant that his waiver of the right to appeal is invalid (see generally People v Lopez, 6 NY3d 248, 256). Supreme Court did not ask defendant during the plea colloquy whether he agreed to waive his right to appeal, and the prosecutor's single inquiry of defendant whether he understood that he was waiving his right to appeal is insufficient to "establish that [he] understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" (id.; see People v Phillips, 28 AD3d 939, lv denied 7 NY3d 761; People v Brown, 296 AD2d 860, lv denied 98 NY2d 767).

Unreasonable to Respond to Attack

People v Mcclellan 2008 NY Slip Op 02271 (3/14/2008)

In holding that the proof was sufficient for a jury to find justification disproved, the Court held that even if a 17 year old African-American, who was walking with four African-Americans companions in a predominately Caucasian neighborhood, when five Caucasian men yelled racial epithets and initiated a physical confrontation,

actually believed that deadly physical force was necessary," it nevertheless supports a finding that defendant's belief was not reasonable under the circumstances (People v Wesley, 76 NY2d 555, 559; see People v Butera, 23 AD3d 1066, 1068, lv denied 6 NY3d 774, 832).

Failure to Raise Dispositive Statute of Limitations Defense Will Not Always Result in Finding of Ineffective Assistance of Counsel

In People v Wise 2008 NY Slip Op 02264 (3/14/2008), the Fourth Department has held that under the circumstances of the case (in which the People on appeal conceded that a conviction for one of the counts was time barred and the Appellate Division dismissed the count) the failure of counsel to raise a dispositive statute of limitations defense did not deny the defendant his right to effective assistance of counsel.

Defendant further contends that defense counsel should have sought dismissal of the count charging him with endangering the welfare of a child because that count was time-barred, and that as a result he was denied his right to effective assistance of counsel. As the People correctly concede, that count is governed by the two-year statute of limitations (see CPL 30.10 [2] [c]), and it should have been dismissed as time-barred (see People v Rogner, 265 AD2d 688). We therefore modify the judgment accordingly.

We further conclude under the circumstances of this case, however, that defendant was not thereby denied his right to effective assistance of counsel. "[T]he failure to raise a defense as clear-cut and completely dispositive as a statute of limitations . . ., in the absence of a reasonable explanation for it, is hard to reconcile with a defendant's constitutional right to the effective assistance of counsel" (People v Turner, 5 NY3d 476, 481). Nevertheless, we conclude that defense counsel's single omission did not "so seriously compromise[] [the] defendant's right to a fair trial [as to] qualify as ineffective representation" (see People v Hobot, 84 NY2d 1021, 1022; see generally People v Flores, 84 NY2d 184, 187-189). Contrary to defendant's contention, the incidents underlying the count of endangering the welfare of a child, although subject to a Ventimiglia hearing, would nevertheless have been admissible as probative of the sexual gratification element of the sexual abuse charges (see generally People v Ortiz, 16 AD3d 831, 833, lv denied 4 NY3d 889; People v Graves, 8 AD3d 1045, lv denied 3 NY3d 674; People v Evans, 259 AD2d 629, lv denied 93 NY2d 924), and we note that the count at issue is now being dismissed as time-barred.

Useful Molineux Holding

People v Pittman 2008 NY Slip Op 02236 (3/14/2008)

In a case involving an attempted murder of a police officer, a divided Court issued an excellent Molineux holding. First the Court held that evidence of a prior possession of a weapon was not “‘sufficiently unique to be probative on the issue of identity’ (People v Beam, 57 NY2d 241, 252).” Next it held that the evidence was not probative on the issue of motive “inasmuch as there was no evidence from which the jury could infer that the 1998 incident provided the motive underlying the instant offenses (see generally People v Namer, 309 NY 458, 462). “

Then the Court held that

evidence of the 1998 incident should have been precluded insofar as it was used to prove intent because, assuming that the People established that defendant fired at the officer, "intent may be easily inferred from the commission of the act itself" (People v Alvino, 71 NY2d 233, 242; see also People v McKinney, 24 NY2d 180, 184-185).

Finally, and perhaps most importantly, the Court held that even

assuming, arguendo, that evidence of the 1998 incident is probative of some issue other than defendant's criminal propensity, we conclude that its potential for prejudice outweighed its probative value(see generally People v Hudy, 73 NY2d 40, 55; People v Santarelli, 49 NY2d 241, 250, rearg denied 49 NY2d 918). Indeed, we conclude that the evidence of the 1998 incident was, at best, "of slight value when compared to the possible prejudice to" defendant (People v Allweiss, 48 NY2d 40, 47), and the error in the admission of that evidence cannot be deemed harmless (see People v Kocyla, 167 AD2d 938, 939; see generally People v Crimmins, 36 NY2d 230, 241-242).

Justice Smith dissented. In part, she would have held that the facts of the earlier incident and the one at trial showed a sufficiently unique modus operandi that rendered this evidence probative on the issue of identity, and the identity of the perpetrator was at issue.

Requirements and Limits on Ordering of Restitution

Two helpful decisions on restitition.

People v Maliszewski 2008 NY Slip Op 0223 (3/14/2008) is one decision with two good holdings regarding the imposition of restitution.

First, the Court held that

We agree with defendant that the court erred in enhancing his sentence of incarceration based upon his failure to pay restitution arising from previous convictions. "Restitution may be based only on the offense for which a defendant was convicted, as well as any other offense that is part of the same criminal transaction or that is contained in any other accusatory instrument disposed of by any plea of guilty' " (People v Visser, 256 AD2d 1106, 1107, quoting Penal Law § 60.27 [4] [a]; see People v Casiano, 8 AD3d 761, 762-763; People v Diola, 299 AD2d 962, lv denied 99 NY2d 581).

Then, the Court held

In addition, defendant did not admit the amount of the burglary victim's loss, and the record is insufficient to support the court's finding with respect to the amount of restitution for that loss. The court therefore erred in failing to conduct a hearing on the issue of restitution for the burglary victim's loss, pursuant to CPL 400.30 (see People v Dibble [appeal No. 2], 277 AD2d 969, 970)

.
In People v Braswell 2008 NY Slip Op 02255 (3/14/2008) the Court agreed with an unpreserved claim that that the court erred in imposing restitution inasmuch as it was not part of the plea agreement and, pursuant to its interest of justice discretion, concluded that the sentencing court should have afforded defendant the opportunity to withdraw his plea before ordering him to pay restitution.

Strict Construction of Requirement of Notice of Right To Testify at Grand Jury

People v Pattison 2008 NY Slip Op 02230 (3/14/2008)

Defendant further contends that County Court erred in denying his motion to dismiss the indictment based on the violation of his right to testify before the grand jury without conducting a hearing. We agree with defendant that a hearing is required. It is undisputed that, pursuant to CPL 190.50 (5) (a), defendant's attorney served the People with written notice of defendant's intention to testify before the grand jury when the matter was presented. The record contains correspondence between the prosecutor and defense counsel concerning the possibility of a plea agreement prior to presentment. The prosecutor stated therein that the "grand jury will convene in the middle of January, 2003" and, in a subsequent letter, the prosecutor stated that the "grand jury will proceed as scheduled." We conclude that the court erred in determining that, based on those letters, defendant was provided with adequate notice of the time and place of the grand jury proceeding, sufficient to satisfy the statutory notice requirements. CPL 190.50 (5) (b) expressly provides that, "[u]pon service upon the district attorney of a notice requesting appearance before a grand jury . . ., the district attorney must . . . serve upon the applicant . . . a notice that he [or she] will be heard by the grand jury at a given time and place" (emphasis supplied). Contrary to the court's determination, those letters do not establish the People's compliance with the statute. Although the prosecutor may have provided oral notice of that information, there is no evidence in the record that the prosecutor in fact did so. We therefore hold the case, reserve decision and [*2]remit the matter to County Court for a reconstruction hearing to determine whether the People complied with CPL 190.50 (5) (b).

A Reminder of the Risks in Appeals from Guilty Pleas

Two recent decisions from the Fourth Department remind us of the potential dangers in appeals form guilty pleas.


People v Hamilton 2008 NY Slip Op 02234 (4th Dept 3/14/2008)

The Fourth Department considered an unpreserved claim regarding an improperly imposed predicate sentence.

After some good language worth noting and citing in future briefs

that defendant's waiver of the right to appeal is invalid inasmuch as the court's minimal inquiry was "insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice' " (People v Brown, 296 AD2d 860, lv denied 98 NY2d 767)

the Court considered unpreserved claims that the defendant was improperly sentenced as a second violent felon. The good news is that

As the People correctly concede, defendant's contention has merit. The sentences for the prior convictions were beyond the 10-year time limit, and the court failed to make a finding that the tolling provision applied (see Penal Law § 70.04 [1] [b] [v]). In addition, the People failed to establish the periods during which defendant was incarcerated (see People v Gines, 284 AD2d 134), and the persistent violent felony offender information failed to list the applicable sentences for tolling purposes (see CPL 400.15 [2]; 400.16 [2]). Finally, we agree with defendant that the court failed to determine whether his convictions in other jurisdictions qualify as violent felony offenses under New York law (see generally People v Muniz, 74 NY2d 464, 467-470).

But the cautionary tale is in the relief granted

We therefore modify the judgment by vacating the sentence. We note that the sentence was imposed following defendant's plea of guilty to a superior court information upon a waiver of indictment, and the People conditioned their agreement to that waiver upon the court's imposition of the agreed-upon sentence. Thus, we remit the matter to County Court to resentence defendant or to "entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety" (People v Irwin, 166 AD2d 924, 925, citing People v Farrar, 52 NY2d 302, 307-308). Further, should the People be so disposed, they may withdraw their consent to the waiver of indictment (see CPL 195.10 [1] [c]; People v Terry, 152 AD2d 822, 823).

Hopefully, Mr. Hamilton was aware of this possibility.


Similar issue and holding in People v Williams 2008 NY Slip Op 02248
93/14/2008).

Sentences are Imposed by Judges and Not by DOCS

Norm Effman lived an appellate attorney's dream. On the morning of February 20, 2008 he argued two cases challenging the authority of the Department of Corrections to add a term of post release supervision {PRS} to a sentence when the sentencing judge has not imposed PRS. That afternoon, the Fourth Department issued two decisions (People ex rel. Burch v Goord 2008 NY Slip Op 01445 and People ex rel. Eaddy v Goord 2008 NY Slip Op 01446 ), in which the Court, expressly disavowed to of its prior decisions,granted Norm's clients' their requested releife, and joined the Second Circuit in holind ghtat judges and judges alone, impose sentences:

Supreme Court relied in part on our decisions in People v Hollenbach (307 AD2d 776, lv denied 100 NY2d 642) and People v Crump (302 AD2d 901, lv denied 100 NY2d 537). We reverse, however, because we agree with the decision of the Second Circuit Court of Appeals that, in the event that a court does not impose a period of postrelease supervision as part of a defendant's sentence, the sentence has no postrelease supervision component (Earley v Murray, 451 F3d 71, 76, reh denied 462 F3d 147; see People ex rel. [*2]Gerard [Colarusso] v Kralik, 44 AD3d 804, 804-805; People v Martinez, 40 AD3d 1012; see generally Hill v United States ex rel. Wampler, 298 US 460, 464). As the Court of Appeals has stated, postrelease supervision is a "direct consequence of a criminal conviction" (People v Catu, 4 NY3d 242, 244; see People v Louree, 8 NY3d 541, 545), and we conclude that it therefore must be expressly imposed by the court (see Earley, 451 F3d at 76). To the extent that our prior decisions in Hollenbach and Crump hold otherwise, they are no longer to be followed (see People ex rel. Eaddy v Goord, ___ AD3d ___ [Feb. 20, 2008]).

People ex rel. Burch v Goord [2008 NY Slip Op 01445].

Recent Court of Appeals Decisions on Crawford v Washington (541 US 36 [2004])

On February 19, 2008, the Court issued decisions in three cases with Crawford issues, two opinions regarding the application of Crawford. In so doing, the Court took a nuanced middle ground regarding the tests to be used in deciding whether evidence is testimonial and is, thus, subject to the confrontation requirements for testimonial evidence set forth in Crawford. The Court also seemed to rewrite a statute to mean what the Court believed the legislature would have intended it to mean, rather than what it actually says. That saves the trouble of the legislature having to actually amend the statute to avoid a perhaps unintended consequence of the statute as written. It also raises the question of why we pay legislators if judges can rewrite statutes.

First, in People v Rawlins and People v Meekins ( __ NY3d__. 2008 WL 423397, 2008 N.Y. Slip Op. 01420, 2/19/2008), the Court considered two categories of evidence upon which courts throughout the country are split as to how Crawford applies: DNA reports and , fingerprints, comparisons.

As the Court had previously done in People v Pacer [6 NY3d 504] the Court rejected the argument that there is a per se business records exception to Crawford, particularly given New York’s definition of the business exception as including police and governmental agencies.

Next the Court rejected the test for testimonial simply being the expectation of the declarant hat the statement would be used in court. Rather the New York Crawford test for testimonial has three primary factors:

we look not only to [1] the interrogator's primary purpose in questioning,
but also, [2] in declarant's view, to the purpose the statement was intended to serve, and to [3] the motivation for the statement.

Other courts have also considered these 3 factors:
1. Was the statement made in circumstances that suggest is likely future use to establish a fact at a criminal prosecution?
2. Was statement similar to that which witness would make on the stand
3. Was the statement made during an investigation and not an ongoing emergency

What happens when you apply the Court’s test?

Fingerprint comparison reports –
In People v Rawlins [37 AD3d 18] the 1st Dept had held that a fingerprint examiner's reports

qualified as nontestimonial business records, and thus did not violate defendant's right of confrontation.

(Rawlins, 37 AD3d 183 [1st Dept 2007]).

Of course, the Court of Appeals, in People v Pacer [6 NY3d 504], had held that the mere fact that a document is a "business record" does not answer the question of whether a document is "testimonial" under Crawford. But the First Department distinguished Pacer as follows:
Unlike the affidavit of mailing in People v Pacer, which the Court of Appeals found to be testimonial notwithstanding the business records exception contained in Crawford,
(1)

the fingerprint examination reports were not prepared for the specific purpose of litigation.

(2)

On the contrary, they were prepared in the regular course of an investigation in progress, at a time when defendant had not yet been arrested.

(3)

Moreover, the reports at issue were introduced through the testimony of a live witness subject to confrontation, albeit not the author of those particular reports.

The question as to whether there is a meaningful distinction between a report prepared for "the specific purpose of litigation" and one made during "an investigation in progress" was answered by the Court of Appeals, when it rejected this reasoning.

Rawlins was a prosecution for a series of burglaries, and the fingerprint examiner's report compared prints lifted at one of the crime scene to the defendant's known prints, and opined that the prints matched. The print comparison was requrested by the police. Regardless of whether the defendant was technically under arrest at that point, what other purpose would the fingerprint examiner's report serve other than to establish perpetrator's guilt at a subsequent trial?

Applying this logic, in Rawlins, the Court of Appeals held that fingerprint comparisons are testimonial and the fact that they are kept in the ordinary course of business of the police is irrelevant.

However, in this cases in which there was live testimony regarding fingerprint comparisons involving some of the other charged burglaries the error in the admission was held to be harmless.

Before discussing the Court's holding in Meekins decided in th same opiion with Rawlins it it worth mentioning the Court's other decision involving fingerprints and Crawford, decided the same day as Rawlins.

In People v Leon ( __ NY3d __, 2008 WL 420022, 2008 N.Y. Slip Op. 01421, 2/19/2008), the Court held that Crawford does not apply to the admission fo fingerprint comparisons at predicate sentencing procedures despite the language of CPL 400.15(7)(a) that the evidence at such hearing be subject to "the rules applicable to a trial of the issue of guilt." The Court explained that

[b]efore Crawford, there was little doubt that affidavits based on fingerprint comparisons were admissible at predicate sentencing hearings (see CPL 60.60[2]; CPLR 4520)...To agree with defendant's broad construction of section 400.15(7)(a) is to presume too much of the Legislature's intent, given the timing of the enactment of section 60.60(2). Testimonial hearsay under section 60.60(2) continued to be admitted after the passage of section 400.15, both at trial and at predicate felony hearings (although Crawford now places new restrictions at trial). Because, in our view, Crawford does not apply at sentencing proceedings, we decline to construe section 400.15 along with other hearsay statutes, which have always operated in tandem, in a way that yields unworkable results.

So, rather than hold that the statute must be interpreted to mean what its unambiguously language states and to suggest to the legislature that it might want to consder amending the provision to exclude fingerprint records at sentencing, the Court effectively held that we will just pretend the statute was written to mean what the legislature probably wanted it to say.

By the way the Fourth Department had applied the statute as written and held that fingerprint affidavits at predicate hearings are inadmissible under Crawford (see People v Williams [30 AD3d 980]). Oh well.

The other Crawford case decided by the Court of Appeals, in the same opinion as Rawlins, was People v Meekins ( __ NY3d__. 2008 WL 423397, 2008 N.Y. Slip Op. 01420, 2/19/2008), in which the Court held that DNA profiles, as opposed to DNA comparisons, are not testimonial. The Court explained

the testing and procedures employed in this case were "neither discretionary nor based on opinion" nor did they concern the exercise of fallible human judgment over questions of cause and effect. This is not to say that errors could not have been made in the testing procedure itself. But those errors, if any, are not the product of "testimony" as we understand that term. Because the Gene Screen technicians only contemporaneously recPeople v Williamsorded the procedures employed and "state[d] the results of a well-recognized scientific test" (id.) — for the purpose, we note, of permitting subsequent reviewers to verify their work — a supervising witness under oath familiar with the laboratory's requirements pursuant to rigid accreditation could illuminate on cross examination whether protocol was followed. Further, it is of no moment that the Gene Screen technicians knew or had every reason to know (because they were working on a rape kit) that their findings could generate results that could later be used at trial, nor that Gene Screen was performing work for law enforcement. Neither the prosecution nor law enforcement could have influenced the outcome; the government's involvement is inconsequential. Finally, the documents prepared by the Gene Screen technicians were not directly accusatory; none of them compared the DNA profile they generated to defendant's.

Thus, the Court distinguished between DNA comparisons and the testing which produces the DNA profiles. How persuasive is this reasoning? Why wouldn't errors in the preparation of the profile be testimonial and thus necessarily subject to confrontation. As the Court noted, this issue has divided Courts in other jurisdictions. But unless and until the United States Supreme Court holds otherwise, this is the law now in New York.

Other Significant AD 4th Department Decisions Issued February 8, 2008

1. People v Prior 2008 NY Slip Op 01189 [2/8/08]

Contrary to defendant's contention, County Court did not err in admitting evidence that defendant was on parole at the time of the crime, had stopped reporting to his parole officer and had violated parole by leaving New York State immediately thereafter. That evidence was relevant in establishing "defendant's consciousness of guilt, and the probative value of the evidence outweighed its prejudicial effect" (People v Topolski, 28 AD3d 1159, 1160, lv dismissed 6 NY3d 898, lv denied 7 NY3d 764, 795; see People v Wynder, 41 AD3d 209, lv denied 9 NY3d 884; People v Jones, 276 AD2d 292, lv denied 95 NY2d 965).

2. People v Foss 2008 NY Slip Op 01190 [2/8/08]

Where the defendant was convicted of two counts of sexual abuse in the first degree (Penal Law § 130.65 [3]) the Court held that

the imposition of consecutive sentences with respect to each count renders the sentence unduly harsh and severe, and we therefore modify the judgment as a matter of discretion in the interest of justice by directing that the sentences shall run concurrently with respect to each other (see CPL 470.15 [6] [b]; see generally People v Bailey, 17 AD3d 1022, 1023, lv denied 5 NY3d 803).

3. People v Quick 2008 NY Slip Op 01194 [2/8/08]

The People appeal from an order granting defendant's motion to dismiss the indictment pursuant to CPL 210.20 (1) (a) and 210.35 (4). We agree with the People that, because they provided defendant with the requisite notice that the matter was to be presented to a grand jury and defendant failed to notify them of his intent to testify (see CPL 190.50 [5] [a]), Supreme Court erred in granting the motion. Defendant, represented by an assigned attorney from the Public Defender's office, was arraigned on the underlying felony complaint on November 6, 2004. At that arraignment, defendant was furnished with a written notice of presentment to a Monroe County grand jury on November 9, 2004. On November 8, 2004, the Public Defender's office discovered a conflict of interest in its representation of defendant, and the following day another attorney was assigned to represent defendant. That attorney did not notify the People of defendant's intent to testify before the grand jury.
We conclude that defendant had sufficient time to consult with defense counsel prior to the filing of the indictment and, because neither defendant nor defense counsel notified the People that defendant intended to testify before the grand jury, defendant was not deprived of the right to testify (see People v Johnson, ___ AD3d ___ [Dec. 21, 2007]; see also People v Lyons, 40 AD3d 1121, 1122-1123, lv
denied 9 NY3d 878; cf. People v Evans, 79 NY2d 407, 415).

4. People v Arguinzoni 2008 NY Slip Op 01204 [2/8/08]

The court properly denied defendant's challenge for cause to a prospective juror based on the prospective juror's inability to read and write. The Judiciary Law requires in relevant part that a juror must "[b]e able to understand and communicate in the English language" (Judiciary Law § 510 [4]; see CPL 270.20 [1] [a]), but there is no requirement for reading and writing skills…Defendant further contends that the court erred in allowing other jurors to author notes for the prospective juror in question, who was designated as the jury foreperson pursuant to CPL 270.15 (3). We reject that contention. The record establishes that the notes were initialed by the foreperson, and it cannot be said that defendant was prejudiced by that procedure inasmuch as "the law recognizes no special function for a foreperson other than acting as the jury's spokesperson" (People v Burgess, 280 AD2d 264, 265, lv denied 96 NY2d 798).

5. People v Dean 2008 NY Slip Op 01209 [2/8/08]

[D]efendant [contention]... that he was denied effective assistance of counsel…does not survive his guilty plea or his waiver of the right to appeal because there was no showing " that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance' " (People v Leonard, 37 AD3d 1148, lv denied 8 NY3d 947).

6. People v Mc Cloud 2008 NY Slip Op 01213 [2/8/08]
The Court affirmed the dismissal of two murder charges on constitutional speedy trial grounds where

Defendant was arrested on February 6, 2002 and indicted on July 11, 2002 for a murder that occurred on December 29, 2001. On September 25, 2002, the only eyewitness who was able to identify defendant was murdered by a person known to be one of defendant's associates. On March 10, 2003, after a Geraci hearing, the court determined that the People failed to establish by clear and convincing evidence that defendant was "involved in procuring the witness's unavailability for live testimony" (People v Geraci, 85 NY2d 359, 368), and it therefore refused to permit the People to use the grand jury testimony of the witness in their case-in-chief against defendant. Although the court released defendant on his own recognizance at that time because the People advised the court that they were unable to proceed to trial, defendant was a furloughed prisoner at the time of his arrest in February 2002, and he therefore remained imprisoned on that unrelated charge. On August 12, 2003, the court denied defendant's motion to dismiss the indictment on speedy trial grounds. Defendant thereafter renewed his motion, and the court granted that motion on January 20, 2004, after the People again advised the court that they were unable to proceed to trial.

The Court explained that

It is well established that, in determining whether a defendant has been denied his or her constitutional right to a speedy trial, "the trial court must engage in a sensitive weighing process of the diversified factors present in the particular case" (Taranovich, 37 NY2d at 445). Although the delay in prosecution here was the result of the murder of the eyewitness and defendant was not incarcerated solely on the basis of the murder charges (see generally id.), the court properly determined that the People were no closer to obtaining additional evidence in January 2004 than they had been in March 2003. The People asserted that they "might" be able to obtain information from defendant's associates concerning the motive of the murder of the eyewitness in order to establish defendant's involvement with that murder, thereby allowing them to use the grand jury testimony of the eyewitness in their case against defendant. Nevertheless, the court properly noted that the People thus far had been unable to obtain the cooperation of defendant's associates and that they were unable to demonstrate any further efforts to obtain that cooperation.

7. People v Riley 2008 NY Slip Op 01214 [2/8/08]

The court properly allowed the People to present evidence of uncharged sexual offenses against the victim in order to establish the element of forcible compulsion with respect to the count of rape in the first degree (see People v Gainey, 4 AD3d 851, lv denied 2 NY3d 799). The court also properly allowed defendant's wife to testify with respect to her observations of defendant's body. Those observations did not concern "knowledge derived from the observance of disclosive acts done in [her] presence or view" (People v Daghita, 299 NY 194, 199) but, rather, they were merely observations concerning defendant's physical characteristics (cf. id. at 198-199; People v Marinaccio, 15 AD2d 932, 933). Finally, the court did not err in allowing the People to cross-examine defendant on the issue whether he rented or purchased adult videos. Defendant opened the door to such questioning when he testified on direct examination that he once possessed an adult video given to him by a coworker (see generally People v Van Kuren, 1 AD3d 960, lv denied 1 NY3d 635), and the People merely sought to elicit testimony that defendant had a membership card for an X-rated video store.

8. People v O'Keefe 2008 NY Slip Op 01228 [2/8/08]

The record establishes that County Court did not advise defendant at the time of the plea proceeding that his sentence would include a mandatory period of postrelease supervision. As a result, defendant was unable "to knowingly, voluntarily and intelligently choose among alternative courses of action" (People v Catu, 4 NY3d 242, 245; see People v Minter, 42 AD3d 914), and his plea must be vacated.

9. People v Camelo 2008 NY Slip Op 01248 [2/8/08]

The burglary and petit larceny charges stem from defendant's entry into the apartment where defendant had been living with his girlfriend and their two children, and his removal therefrom …. [T]he verdict is against the weight of the evidence with respect to the count of petit larceny…. Although the weight of the evidence establishes that defendant removed some of his girlfriend's belongings from the apartment, it also establishes that he voluntarily returned those belongings to his girlfriend within a short time thereafter. Consequently, the evidence weighs heavily in favor of a finding that defendant did not intend to steal the property from his girlfriend within the meaning of Penal Law § 155.25,i.e., he did not intend "to withhold [the property] from [her] permanently" (§ 155.00 [3]; see § 155.05; see generally People v O'Reilly, 125 AD2d 979). We find that the jury "failed to give the evidence the weight it should be accorded" on the issue of defendant's intent to commit petit larceny (Bleakley, 69 NY2d at 495), and we therefore modify the judgment by reversing that part convicting defendant of petit larceny and dismissing count two of the indictment. In view of our reversal of that part of the judgment convicting defendant of petit larceny as against the weight of the evidence, and because there is no evidence that defendant intended to commit any other crime upon his entry into the apartment (cf. People v Lewis, 5 NY3d 546, 551-552), we further find that the burglary conviction is against the weight of the evidence (see generally People v Gaines, 74 NY2d 358, 362-363). We therefore further modify the judgment by reversing that part convicting defendant of burglary in the second degree and dismissing count one of the indictment.

Evidence of Common Scheme or Just Evidence of Propensity?

The Court divided as to whether, in a sex crime case, the People should be allowed to present testimony that the defendant committed similar acts with the victim in another county during the same time frame as that alleged in the case at bar. In People v Leeson 2008 NY Slip Op 01243 [2/8/08], County Court admitted extensive testimony from the victim, her brother, and her mother concerning two incidents, occurring in "late August, early September," in which defendant took the victim and her brother to a house and office in Penn Yan, Yates County, to help clean it, and there "some of the same things happen[ed in Penn Yan] as happened on the side of the road near [the victim's] mom's house[]" in Ontario County
The majority held that admission was proper in a case in which

the People's theory was that defendant planned to place the victim in secluded locations in which she was alone with him for the purpose of engaging in sexual activity with her. We thus agree with the court that evidence that he did so on two occasions in addition to those charged in the indictment herein was admissible to establish the common scheme or plan. In any event, we conclude that the evidence also was admissible to complete the narrative of the events charged in the indictment (see People v Till, 87 NY2d 835, 837; People v Gines, 36 NY2d 932, 932-933; People v Jones, 27 AD3d 1161, lv denied 7 NY3d 849), and to provide necessary background information (see People v Conrow, 13 AD3d 1116, lv denied 4 NY3d 829; People v Tarver, 2 AD3d 968). Finally, the probative value of that evidence outweighed any prejudicial impact (see generally Allweiss, 48 NY2d at 47).

By contrast, the two Justices who dissented found that this evidence was solely relevant as to propensity and, thus inadmissible:

We cannot endorse the majority's reliance on the common scheme or plan exception to the general rule excluding evidence of uncharged crimes. A defendant charged with sex crimes would rarely, if indeed ever, engage in such conduct in a public venue but, rather, the defendant would likely choose a secluded location for the purpose of engaging in illicit sexual activity. We therefore cannot agree that the evidence of the two uncharged incidents was admissible to establish that defendant had a common scheme or plan. We also cannot agree with the majority that the evidence of those uncharged crimes was "admissible to complete the narrative of events charged in the indictment . . . and to provide necessary background information," presumably with respect to defendant's relationship with the victim. Addressing first the statement of the majority with respect to "necessary background information," we conclude that, based on the respective ages of the victim and defendant, no specific intent on the part of defendant was necessary to commit the crimes for which defendant was indicted in Ontario County (see Penal Law former § 130.45 [1]; § 130.60 [2]; see generally Lewis, 69 NY2d at 327). We note in any event that the incidents in Yates County occurred either at the same time or after the charged crimes and thus, could not temporally serve to provide background information for defendant's indicted crimes.

Can a Seizure Lawfully be Based on the Officer’s Mistakes as to the Law?

In People v Estrella 2008 NY Slip Op 01239 [2/8/08] the Court divided as to whether the stop of a vehicle with Georgia license plates was lawful where the window tint rendered them less transparent than required pursuant to a Georgia statue which had already been declared unconstitutional. In part the disagreement is over whether the police need to know whether the driver was a Georgia resident and, thus, not subject to New York’s tint rule. The majority held that

We cannot agree with the dissent that the officer who stopped defendant's vehicle knew at the time of the stop that "defendant's vehicle was registered in Georgia and that defendant was a Georgia resident" and thus that, pursuant to Vehicle and Traffic Law § 250 (1), defendant was exempt from the requirements of section 375 (12-a) (b) (4). Section 250 (1) provides in relevant part that the owner of a vehicle that is in compliance with the registration and equipment requirements of the state in which the owner resides is exempt from provisions of the Vehicle and Traffic Law pertaining to registration and equipment. The exemption is applicable, however, only if the state in which the owner resides grants "like exemptions" to residents of New York State (id.). The record of the suppression hearing establishes that, at the time of the stop, the officer did not know whether defendant was the owner of the vehicle, whether the vehicle was properly registered in Georgia, or whether the light transmittance complied with Georgia law (see id.). Rather, the officer knew only that the vehicle was operated on a public highway with a rear window that appeared to be tinted with a material having a light transmittance of less than 70%. We therefore conclude that the officer who stopped the vehicle had the requisite probable cause to believe that a violation of Vehicle and Traffic Law § 375 (12-a) (b) (4) had occurred (see People v Robinson, 97 NY2d 341, 349-350; People v McKane, 267 AD2d 253, lv denied 94 NY2d 921, 922). The stop itself was necessary to obtain the information whether section 250 (1) was applicable and thus whether defendant was exempt from the requirements of section 375 (12-a) (b) (4). Also contrary to the view of the dissent, it is unreasonable to require that police officers be familiar with the equipment requirement laws of every state, and presumably other countries, in order to effectuate a proper stop for a violation of New York State law.

By contrast, the two dissenting Justice reasoned that

New York motor vehicle equipment provisions, however, do not apply to motor vehicles owned by nonresidents of New York, provided that the owner is in compliance with the equipment provisions of the law of the state of his or her residence (see Vehicle and Traffic Law § 250 [1]). Here, the police officer who stopped defendant's vehicle knew only that defendant's vehicle was registered in Georgia and that defendant was a Georgia resident. Thus, Georgia law applied with respect to the tinted rear window on defendant's vehicle, and there was no window tint law in effect when defendant's vehicle was stopped. The window tint statute in Georgia had been declared unconstitutional by the Supreme Court of Georgia (see Ciak v State, 278 GA 27, 28-29, 597 SE2d 392, 394) several months before the defendant's vehicle was stopped, and a new window tint statute was not enacted in Georgia until nearly a year after the prior statute was declared unconstitutional (see Ga L 2005, Act 67). Thus, contrary to the view of the majority, we conclude that the police did not have probable cause to believe that defendant had committed a traffic infraction. While it is true that the officers were unaware that Georgia's window tint statute had been declared unconstitutional, that mistake of law, as opposed to a mistake of fact, cannot justify the stop of a vehicle and the ensuing search and subsequent seizure of evidence therefrom (see People v Smith, 1 AD3d 965; Matter of Byer v Jackson, 241 AD2d 943, 944-945). Further, we discern no valid public policy reason for not requiring police officers to familiarize themselves with the motor vehicle equipment laws of other states if they stop such vehicles solely on the basis of a purported equipment violation. Motor vehicle stops constitute "at least a limited seizure subject to constitutional limitations" (People v John BB., 56 NY2d 482, 487, cert denied 459 US 1010) and, in our view, where a stop is predicated on a traffic infraction, police officers must be charged with the objective standard of knowing whether such an infraction occurred (see generally Robinson, 97 NY2d at 349-350).

Perhaps it should be pointed out that the Court of Appeals has interpreted New York law as providing defendant’s with only a limited mistake of law defense and held in People v Marrero (69 NY2d 382) that the defense of mistake of law was not available to federal corrections officer, who was arrested in social club for possession of loaded .38 caliber automatic pistol and who claimed he mistakenly believed he was entitled pursuant to statute to carry handgun without permit as peace officer.

Insufficient Specificity of Insufficiency of Proof?

Ever since the Court in People v Gray (86 NY2d 10) made clear that a general motion for a trial order of dismissal (T.O.D.) which fails to specify the alleged insufficiency of proof does not preserve the claim that the proof was insufficient counsel and courts have struggled with the questions as what wording is needed in a T.O.D. motion. In depraved murder cases in which the defendant claims that the evidence shows intentional conduct and is, thus, insufficient as to reckless or depraved indifference, the question is what language is required in a T.O.D. motion to raise and preserve the claim.

In People v Hawkins 2008 NY Slip Op 01238 [2/8/08] the Court divided over whether a T.O.D motion was sufficiently specific to preserve the legal insufficiency where the proof was that the defendant acted intentionally, and not recklessly, in killing the decedent.

The majority held that

Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction of depraved indifference murder on the ground that the evidence established an intentional murder and no other crime. In support of his motion for a trial order of dismissal of that count at the close of the People's case, defendant contended "that the People . . . failed to prove a prima facie case of [d]epraved [i]ndifference [m]urder" and that, "[n]ot only [did] they fail to prove a prima facie case that [defendant] was the perpetrator of the homicide[,] . . . they failed to prove that [defendant] acted with [d]epraved [i]ndifference." It is well established that, "even where a motion to dismiss for insufficient evidence [is] made, the preservation requirement compels that the argument be specifically directed' at the alleged error" (People v Gray, 86 NY2d 10, 19, citing People v Cona, 49 NY2d 26, 33 n 2; see also People v Montes, 225 AD2d 1052, lv denied 88 NY2d 882). It is unclear whether defendant's motion for a trial order of dismissal was directed at the alleged legal insufficiency of the evidence of recklessness or at the depraved indifference factual setting in which the murder took place. In either event, defendant failed to preserve for our review his present contention that the evidence is legally insufficient to support the conviction of depraved indifference murder.

By contrast, the two dissenting Justices would have held the motion sufficient to preserve the issue because

in addition to raising the general ground that the People failed to prove "a prima facie case of depraved indifference murder," defendant moved for a trial order of dismissal on the grounds that the People failed to prove that he was the perpetrator of the murder and failed to prove that the perpetrator "acted with [d]epraved [i]ndifference." It of course is assumed that Supreme Court was aware of the elements of depraved indifference murder and thus would have recognized that the motion was addressed to the legal insufficiency of the evidence with respect to the state of mind and nature of the conduct of the perpetrator. Thus, in our view, defendant satisfied the requirement set forth by the Court of Appeals in People v Gray (86 NY2d 10, 19), i.e., that his argument be "specifically directed' at the alleged error," thereby bringing to the attention of the court his contention that the People failed to prove essential elements of the crime of depraved indifference murder (see id.; cf. Finger, 95 NY2d at 895; People v Acevedo, 44 AD3d 168, 172, lv denied 9 NY3d 1004).

Retained Counsel Cannot Withdraw Simply Because He Hasn’t Been Paid

People v Woodring 2008 NY Slip Op 01234 [2/8/08]

Contrary to defendant's contention, the court did not improvidently exercise its discretion in denying trial counsel's motion to withdraw as defendant's attorney. In support of the motion to withdraw, defendant's attorney stated that defendant had not been returning his telephone calls and had refused to accept several plea offers, and he stated that defendant's family had "exhausted" their financial resources and could no longer afford to pay him. Defendant stated in response that he wanted his attorney to continue to represent him and that he "somehow" would find the money to pay him. The failure to return telephone calls does not warrant withdrawal from representation because that failure does not by itself "render[] it unreasonably difficult for the lawyer to carry out employment effectively" (Code of Professional Responsibility DR 2-110 [c] [1] [iv] [22 NYCRR 1200.15 (c) (1) (iv)]), and it is beyond dispute that an attorney is not entitled to withdraw as counsel based on the decision of a defendant to exercise his or her right to trial. Finally, the alleged inability to pay for trial counsel's services does not entitle trial counsel to withdraw as defendant's attorney, particularly in view of the statement of defendant that he would somehow find more money in order to pay his attorney. On the record before us, we conclude that the court properly "balance[d] the need for the expeditious and orderly administration of justice against the legitimate concerns of counsel" (People v Xadi Fen, 192 Misc 2d 788, 790; see generally DR 2-110 [c] [22 NYCRR 1200.15 (c)]).

The Right To Present Evidence Of Threats By Complainant Is Limited

In People v Valentine 2008 NY Slip Op 01231 [2/8/08] the Court affirmed holdings restricting the ability of a defendant to have a jury consider evidence of the complainant’s hostility towards the defendant

We reject the contention of defendant that the court violated his constitutional right of confrontation by refusing to admit in evidence a tape recording of threats made against him by his ex-wife. "[T]he extent to which an examination may be pursued for the purpose of proving the hostility of a witness is within the discretion of the court" (People v Sutherland, 280 AD2d 622, 623, lv denied 96 NY2d 835; see also People v Jones, 37 AD3d 1111, lv denied 8 NY3d 986). "If bias or interest has been fully explored through other means . . ., or the precluded area involved cumulative matter already presented . . ., there generally has been no infringement of the right of confrontation" (People v Chin, 67 NY2d 22, 29; see People v Corby, 6 NY3d 231, 235-236) and, here, the court afforded defendant a sufficient opportunity to establish the hostility of the witness. Contrary to the further contention of defendant, the court properly permitted his ex-wife to testify concerning their marital discord to explain or clarify issues brought out on cross-examination (see generally People v Mateo, 2 NY3d 383,425, cert denied 542 US 946).

The Initial Aggressor and the Justified Use of Deadly Physical Force

There may be circumstances in which a defendant is the initial aggressor and can still justifiably respond with deadly physical force.

In People v Mc Williams 2008 NY Slip Op 01229 [2/8/08] the Court that

…[W]here there is a reasonable view of the evidence that the defendant initiates nondeadly offensive force and is met with deadly physical force, the defendant may be justified in the use of defensive deadly physical force and that, in such cases, the term initial aggressor is properly defined as the first person in the encounter to use deadly physical force (see e.g. People v Daniel, 35 AD3d 877, 878, lv denied 8 NY3d 945; People v Walker, 285 AD2d 364, lv denied 97 NY2d 643; People v Mickens, 219 AD2d 543, lv denied 87 NY2d 904).

Despite this holding, which appears to differ for the CJI charge on justification, the held that

We nevertheless conclude that, despite the absence of the word "deadly" from that part of the court's charge defining the term initial aggressor, the court's justification charge adequately conveyed to the jury that defendant could be justified in the use of deadly physical force to defend himself against deadly physical force initiated by the victim. Thus, the justification charge, viewed in its entirety, was "a correct statement of the law" (People v Coleman, 70 NY2d 817, 819; see People v Melendez, 11 AD3d 983, 983-984, lv denied 4 NY3d 888; see generally People v Ladd, 89 NY2d 893, 895; People v McDaniels, 19 AD3d 1071, lv denied 5 NY3d 830).

Is People v Ventimiglia Still the Controlling Law?

In a number of recent decisions the Fourth Department has approved the admission of uncharged crime evidence despite the failure of the People to first obtain a pretrial Ventimiglia (52 NY2d 350) ruling. Most recently, in People v Maclean, 2008 NY Slip Op 01188 [4th Dept 2/1/08] the Court held that

We reject the contention of defendant that he was deprived of a fair trial when the court allowed the People to elicit evidence concerning uncharged crimes without first obtaining a Ventimiglia ruling. The court has discretion to admit evidence despite the failure of the People to provide advance notice of their intent to present such evidence (see People v McLeod, 279 AD2d 372, lv denied 96 NY2d 921; see generally People v Robinson, 28 AD3d 1126, 1128, lv denied 7 NY3d 794), particularly where the defendant was aware of the evidence (see Robinson, 28 AD3d at 1128; People v Himko, 239 AD2d 661, 662, lv denied 90 NY2d 906).

In Robinson (28 AD3d 1126 [4/28/06]), the Court held that

Defendant has failed to establish that he was prejudiced by the fact that the Ventimiglia evidence was deemed admissible as a result of an offer of proof made to the court during the sidebar conference at trial. "A defendant is not entitled to have such a [Ventimiglia] hearing conducted before trial" (People v Torres, 300 AD2d 46, 46 [2002], lv [*2]denied 99 NY2d 633 [2003]) and, furthermore, an offer of proof is acceptable where, as here, the defendant is aware of the proposed testimony (see People v Himko, 239 AD2d 661, 662 [1997], lv denied 90 NY2d 906 [1997]; see also People v Glass, 259 AD2d 989, 990 [1999], lv denied 93 NY2d 924 [1999]).

See also the decision of the Court in People v Small 2008 NY Slip Op 00855 [2/1/08)

The Maclean decision does not make clear whether there was ever a ruling on the admissibility of the evidence of uncharged crimes – either at a pre-trial hearing or in an offer of proof during the trial. Obviously, the content of defense counsel’s voir dire, opening statement, and questions to witnesses is impacted by counsel’s understanding as to the evidence which will be admitted at trial. Apparently, the Fourth Department no longer believes that there is a requirement that the People give pre-trial notice of intent to elicit such evidence. Notably, none of the decisions the Court cites in support of its holding are from the Court of Appeals. One would think that a relaxation or outright rejection of a requirement that the admissibility of evidence of uncharged crimes be determined pre-trial is a matter of statewide significance which the Court of Appeals should want to consider.