New York Criminal Law and Procedure

Immigration Consequences of Drug Charges

Second Circuit Blog has a posting today about collateral consequences of New York drug convictions.  The blog, which is written by lawyers from the Federal Defenders, nicely summarizes a pair of cases from the Second Circuit that deal with the question of when the crime of simple possession of a controlled substance under New York law can result in immigration consequences.  If you represent clients who are not U.S. citizens, this post and the cases it cites are worth a careful read.  (LC)

AD2 - New Decisions

New decisions from the Second Department have been posted.  (LC)

Agency Defense & Motive

I highly recommend an article by one of my colleagues, Professor Elaine Chiu, about the role of motive in criminal law.  Prof. Chiu uses New York's agency defense -- which holds that a steerer who acts as an agent of the buyer, not the seller, in a drug sale is guilty as an accomplice to possession, not sale -- to argue for greater consideration of motive in deciding guilt and punishment.

Here is the abstract:

This article builds on recent discussions amongst criminal law scholars on the role that motive should play in the criminal law. It advocates for greater consideration of a defendant's motive in all critical decisions of the criminal justice process and offers concrete guidelines. Unlike many other articles that focus on euthanasia or hate crime, this one takes on the simple street sale of drugs and an unusual defense known as the agency defense to demonstrate how the criminal law can better accommodate motive. Created to avoid the harsh jail terms imposed on convicted drug dealers, the agency defense pretends that steerers who steer customers to drug dealers are the purchasing agents of the customers. As agents, they avoid criminal liability for the sale of drugs. Steerers, though, are not agents; instead, they are commonly drug addicts themselves who support their addictions by working as steerers. Instead of using a legal fiction like agency, this article proposes that the criminal law honestly and directly accommodate the true motive of steerers to satisfy their drug addictions. Addiction is admittedly problematic as a motive because of its low provability and low moral potency. One acceptable accommodation may be to mandate that judges simply consider whether drug offenders suffer from addictions in determining the appropriate sentence. Aside from this consideration, not every defendant will warrant an actual reduction in sentence. That would be up to the discretion of the judge.

The article is available for free download from the Social Science Research Network.  It was originally published in the Buffalo Criminal Law Review.  While you're at SSRN, check out Prof. Chiu's other papers as well as articles that I have authored.  SSRN is an effective tool for conducting research in modern legal scholarship.

AT2 - New Decisions

The Appellate Term, Second Department, has posted new decisions.

AD3 - New Decisions

The Third Department has announced new decisions.  (LC)

Former director of Bellevue pleads guilty

The New York Times is reporting that the former director of Bellevue has pled guilty to bribe receiving.  Carlos Perez will be sentenced to probation.

Depraved Indifference Developments

People v. Jean-Baptiste (Ct. App. 11/25/2008) was decided yesterday by the Court of Appeals.  Writing for a unanimous court, Judge Pigott held that the evidence at trial was not legally sufficient to establish the defendant's guilt for depraved indifference murder.  The opinion summarized the facts:

On January 13, 2002, just after midnight, Michael Weekes, his fiancÉe and several other friends arrived at a party in a basement of a Brooklyn home. After approximately 20 minutes, Weekes and his fiancee walked past a man nicknamed "Backshot," whom they recognized from previous parties. Backshot either said something to Weekes, pushed him, or both. In response, Weekes turned, picked up a bottle from a table and hit Backshot once on the side of the head. Defendant, Backshot's cousin, then pulled out a handgun and, when he was within 12 to 18 inches of Weekes, pulled the trigger twice, but the gun did not fire. Defendant pulled the trigger a third time, discharging a round into Weekes's chest, killing him.

In a post-Feingold world, it is difficult to imagine how a set of facts could ever constitute depraved indifference murder.  It is pretty clear that the defendant acted with intent.  How, then, did the jury get charged with depraved indifference murder?  Were the prosecutor and trial judge both asleep?

Of course not.  At the time of the trial, Feingold had yet to be decided.  Register was the controlling law.  The twin-count submission of both intentional and depraved indifference murder was consistent with decades of jurisprudence.

While Jean-Baptiste was up on appeal, Feingold was decided.  The question for the court was whether to apply the new rule about depraved indifference murder retroactively.  (A separate issue -- the retroactivity of Feingold to cases on collateral review -- was decided by the court in Policano v. Herbert.)  The court squarely held that since Jean-Baptiste was still on direct review, Feingold applied:

"Under traditional common-law principles, cases on direct appeal are generally decided in accordance with the law as it exists at the time the appellate decision is made" (People v Vasquez, 88 NY2d 561, 573 [1996]). For instance, in People v Hill, (85 NY2d 256 [1995]), we held that our decision in People v Ryan (82 NY2d 497) — concluding the term "knowingly" in Penal Law § 220.18 applies not only to the possession of the illicit substance itself but also to the weight of the substance — was applicable to cases pending on direct appeal at the time of the decision. We reasoned that "a conclusion that the Ryan case is not retroactive would result in a person's guilt even though one of the elements of the crime had not been established" (id. at 263). As such, a finding of guilt would "have rendered the proceeding fundamentally unfair and a violation of due process" (id. at 262).

(emphasis added).  I am concerned that attorneys, judges, and others reading this decision may get the sense that there is an automatic rule of retroactivity for cases on direct appeal.  Such is not the law.  Carefully note the court's use of the term "generally."  New York, unlike federal law, does not have a hard-and-fast rule that a new decision automatically applies to all cases in the direct review pipeline.  Instead, a court is to apply a three-factor test in each instance.  See People v. Favor, 82 N.Y.2d 254, 260-62 (1993).  In Favor, the court wrote, "[A] new rule of State law need not automatically be applied to all cases currently in the direct appeal pipeline."  Indeed, the court in Jean-Baptiste went on to apply the three-factor test.

In any event, the court also rejected the People's backup argument that "even if this Court retroactively applied Feingold to cases on direct appeal, the legal sufficiency of defendant's conviction should be measured by the court's charge given without exception."  The court distinguished two cases, People v. Dekle and People v. Sala:

Here, however, the defendant made a specific motion to dismiss for legal insufficiency at trial, anticipating the change in the law brought by Feingold. The principle the People cite is inapplicable when, as in this case, defense counsel made a specific motion for a trial order of dismissal. Having made that motion, defense counsel did not additionally have to take an exception to the court's depraved indifference murder charge (see Suria v Shiffman, 67 NY2d 87, 96 [1986]).

Our holdings in People v Dekle (56 NY2d 835 [1982]) and People v Sala (95 NY2d 254, 260 [2000]) are not to the contrary. In Dekle, defendant moved for a trial order of dismissal on a robbery count because no "immediate" threat of physical force was possible when defendant was unable to open the folded knife. The court denied his motion and charged the jury that "immediate" had its ordinary meaning and no specific time was required to convict; defendant did not object to that definition. On appeal, defendant advanced a new theory, claiming that the trial court should have charged that "immediate" requires temporal and geographic proximity to the taking of the property. Unlike the present case, defendant in Dekle failed to preserve his newly advanced legal theory because it differed from the theory he advanced at trial. In Sala as well, the defendants advanced a different legal theory in this Court than the one objected to at trial.

(LC)

AD1 - New Decisions

The First Department announced new decisions today.  (LC)

Preservation

Chief Judge Kaye, in what will be one of her last opinions as a Judge of the Court of Appeals, wrote for a unanimous court in People v. Hawkins (Ct. App. 11/25/2008), a consolidated case dealing with preservation.  It is an important case for both trial and appellate attorneys.

The Court of Appeals is limited to hearing questions of law.  In contrast, the Appellate Division can decide questions of law, fact, or issues in the interest of justice.  Legal sufficiency is a question of law ... but only if it has been properly preserved.  What constitutes adequate preservation?

To preserve for this Court's review a challenge to the legal sufficiency of a conviction, a defendant must move for a trial order of dismissal, and the argument must be "specifically directed" at the error being urged (People v Gray, 86 NY2d 10, 19 [1995]; People v Hines, 97 NY2d 56, 62 [2001]). As we have repeatedly made clear — and underscore again — general motions simply do not create questions of law for this Court's review (see People v Finger, 95 NY2d 894, 894 [2000] [legal sufficiency issue was unpreserved by a motion for trial order of dismissal claiming that every element had not been proven]; People v Bynum, 70 NY2d 858, 859 [1987]; People v Stahl, 53 NY2d 1048 [1981]; People v Cona, 49 NY2d 26, 33 n 2 [1979]).

Unfortunately, many motions for trial order of dismissal are general and perfunctory.  The Court explained why specificity is required:

Sound reasons underlie this preservation requirement. As we stated in Gray, a specific motion brings the claim to the trial court's attention, alerting all parties in a timely fashion to any alleged deficiency in the evidence, thereby advancing both the truth-seeking purpose of the trial and the goal of swift and final determination of guilt or nonguilt of a defendant (86 NY2d at 19-20). A defendant's motion for a trial order of dismissal that specifies the alleged infirmity helps to assure that legally insufficient charges will not be submitted for the jury's consideration, and serves the overall interest in an efficient, effective justice system.

Viewing the preservation requirement in the context of the individual trial, it is defense counsel who is charged with the single-minded, zealous representation of the client and thus, of all the trial participants, it is defense counsel who best knows the argument to be advanced on the client's behalf. Viewing the preservation requirement systemically, intermediate appellate court review is potentially comprehensive, including not only law questions but also fact issues and the interest of justice. This Court's second level of review — "to authoritatively declare and settle the law uniformly throughout the state" — is best accomplished when the Court determines legal issues of statewide significance that have first been considered by both the trial and the intermediate appellate court.

Given this strong reaffirmance of the principles in Gray, it is incumbent upon trial defense counsel to make a strong record of legal insufficiency.  Otherwise, appellate counsel will have to fallback on an "interest of justice" attack before the Appellate Division.  These claims are difficult to win. 

Lessons learned?

• Counsel should prepare for the motion for trial order of dismissal as they would for any other important stage of a trial: voir dire, cross-examination of  witnesses for the People, summations, etc.  It is tough to come up with specific legal sufficiency arguments in the middle of trial.
• A motion for trial order of dismissal should carefully and slowly lay out the arguments why each particular count of the indictment should be dismissed.  While citation to case law is not necessary, it is always helpful.
• A catch-all or general motion ("I move to dismiss Count X of the Indictment because the People have failed to adduce legally sufficient evidence. Thank you, Your Honor.") is as good as making no motion at all.  Specificity is the key. 
• Judges should allow defense counsel sufficient time to prepare and make their arguments.  If the People rest their case at 12:55 p.m., perhaps hearing the motion after a lunch recess would be preferable to "getting it out of the way" before the break.
• Remember that if the defense presents evidence, the motion must be renewed at the close of the evidence.  See People v. Hines, 97 N.Y.2d 56 (2001). Here, too, the argument must be specific.

(LC)

COA - Depraved Indifference Murder Watch

The Court of Appeals announced four decisions today in the depraved indifference murder area:

• People v. George
• People v. Castellano
• People v. Jean-Baptiste
• People v. Hawkins

In full disclosure, I co-wrote the brief in Castellano while I was an ADA in the Bronx.

I'll be posting summaries of these new cases at a later point.  (LC)

Ready in the calendar part, not ready in the trial part - 30.30 motion granted

People v. Murray (Sup. Ct. Bronx County 11/20/2008) is an interesting case out of Bronx County dealing with the question of when the People are actually "ready for trial" under CPL § 30.30.  Justice Fabrizio granted the defendant's 30.30 motion. 

The critical court date was October 16.  In a calendar part earlier in the day, the People unequivocally announced ready for hearings and trial and the case was sent out to a trial part.  Once in the trial part that afternoon, the People indicated that one of their witnesses -- a key witness for both hearings and trial -- was available that day but, afterward, would not be available again for another 11 days.  The case was returned to the calendar part and the resulting delay was charged to the People:

The People's inability to complete pretrial hearings is a well-recognized impediment to a case going to trial. See People v. McKenna, 76 NY2d 59, 64 (1985); People v. Simpkins, 193 Misc 2d 148, 151 (Crim. Ct. Bronx County 2001), aff'd, 193 Misc 2d 447 (App. Term. 1st Dept. 2002), lv to appeal denied, 99 NY2d 583 (2003). Here, the People had ample time to prepare for the hearings, which were ordered on February 13, 2008, some 10 months earlier. Moreover, they were advised in court on the record on October 9, 2008 that they had only 4 additional days within which to state ready for trial, and they were given a choice to pick any day that they wanted for trial. They picked October 16, 2008 as the date for trial. But, as it turned out, for reasons they never even attempted to explain to the trial judge, a necessary police witness was "unavailable" to testify for the next eleven days. And, in this case, the witness was not even going to be able to complete his hearing testimony that day.

Thus, the People's statement that they were in fact "ready" to proceed to trial on October 16, 2008 is without merit. At most, they were able to start a hearing, but not complete it. That is, of course, tantamount to not being ready for trial at all. Where the prosecution is unable to do more than commence a suppression hearing, and that inability leads to an adjournment of the case, that adjournment is "the exclusive responsibility of the People and requires the assessment of time for that post-readiness delay." Simpkins, 193 Misc 2d at 152 - 155.

The People further argue that since the case was not sent out for trial until the afternoon hours, they should not bear the responsibility for the adjournment. Cases are, of course, sent out for trial throughout the day. And, in fact, it is a common practice in this county, for a variety of reasons, for cases to be called in the morning and for assistant district attorneys to request a second call in the afternoon to begin a trial. The People allege that this case was not called until "five and one half hours after the case was scheduled to be called," and that both the defense attorney and the Court should actually shoulder the responsibility for the People's inability to try the case that day. While it is certainly this Court's preference to call all cases on its calendar as close to 9:30 a.m. as possible, there is nothing in the record to support the People's argument that this case was itself given some preference for a call at 9:30 a.m., let alone that the Court was somehow aware that the People could only really be ready to go to trial at 9:30 a.m. that day, and no later. If the People were in such dire straits, it would be appropriate for them to bring this fact to the Court's attention. But, the record discloses, beyond cavil, that the prosecutor was not aware of the fact that the witness was not going to be available, for whatever reason, for an 11 day period at any time before the case was actually before the trial judge, in the afternoon. The prosecutor said, to the trial judge, in no uncertain terms, that he "just found out [the police witness is] also unavailable tomorrow." The prosecutor who answered "ready" for trial in the calendar part that afternoon did so unequivocally. To now suggest that the prosecutor knew at 9:30 a.m. that the police witness could not come in the next day, and the next week, to testify, and then attempt to argue that the reason for the adjournment is due to "the court's congested calendar," and not the extended unavailability of their own witness, is baffling.

In any event, when the People state ready for trial, whether in the morning, or in the afternoon of a court day, it is assumed that the statement is one of present readiness to proceed that day, and for all of that day, and that they will not be sent out to a trial judge for purposes of asking for an adjournment. They claim, without any basis in the record to support this claim, that if the case had been called in the morning, and if the case had been sent out for trial in the morning, then not only would they have been able to complete the hearing, but they also would have been able to have the "unavailable" witness complete his trial testimony all in the same day. Of course, we will never know if that would have been true, because it never happened that way. They did state ready for trial on the record, in open court, when the case was actually called after the lunch break. Moreover, their argument amounts to nothing more than unsupported speculation. They needed to be ready for trial that day, and they needed to complete the hearing before the case could be tried. The defendant, of course, always reserves the right to choose to testify at a suppression hearing, and to call any witnesses, and that precludes any finding that the People's prophesy is a valid one. Moreover, defense counsel raised a serious issue after the People turned over very late discovery to him when the case reached the trial judge. It seemed that counsel claimed that there were statements alleged to have been made by the defendant contained in the discovery, including a written statement by the defendant, that counsel claimed had never been provided to him in the 17 months the case was pending. Thus, the scope of the hearing itself had to be settled before testimony could even begin. Put simply, as with many cases, issues arose before the trial judge that needed to be addressed before testimony could be taken, which seriously calls into question the validity of the People's optimistic time line.

(LC)

Sex offender residency laws - preemption analysis

Alfred O'Connor, an attorney with the New York State Defenders Association, has an interesting column in today's New York Law Journal about sex offender residency laws.  These laws -- which are often local ordinances, not state statutes -- restrict where a registered sex offender can live.   Mr. O'Connor discusses a recent case from New Jersey that struck down such ordinances on state preemption grounds.  Mr. O'Connor makes a thoughtful case that New York law requires a similar result.  (LC)

COA - New Decisions

The Court of Appeals announced three new cases today in the criminal law area:

• People v. Johnson - SORA factor #7 (increased level of risk because crime was directed at a stranger)
• People v. Naradzay - legal sufficiency of attempt charge
• People v. MacShane - Batson and judicial recusal

More on these cases later this week.  (LC)

Direct appeal cannot be used as a backdoor to appealing a 440 denial where leave to appeal was previously denied

There are two tracks to the criminal appeal process: direct and collateral.  Claims on direct review must derive from the record.  Collateral attacks -- usually through CPL Article 440 -- usually concern matters outside the printed record, such as ineffective assistance of counsel, witness recantation, or newly discovered evidence.  Sometimes appellate counsel will see issues that fit into both categories and will litigate both avenues simultaneously or have one stayed while focusing on the other. 

In People v. Martinaj (1st Dept. 11/20/2008), the defendant pursued a 440 motion claiming, among other things, a Brady violation.  The motion was denied and, pursuant to CPL § 460.15, the defendant sought leave to appeal.  (Appeal is not as of right from the denial of a 440 motion.)  A justice of the First Department denied that application. 

The defendant then proceeded with his direct appeal.  The People moved to strike his brief because it contained "the same grounds advanced in support of defendant's unsuccessful CPL 440.10 motion."  Appellate counsel submitted an affidavit asserting that the claims were, in fact, derived from the trial record, not the record before the motion court.  The court denied the motion to strike without prejudice to raising the issue on appeal.  Once the appeal was before the court, however, it found that, in fact, the defendant was raising the same issues he "unsuccessfully made in support of the CPL 440.10 motion."  The appendix to the defendant's brief consisted of the 440 motion record, not the trial record.  The court went on, "On this score, we note our displeasure with the patent falsity of counsel's affirmation as set forth above."  The court ultimately found that the trial record did not support the defendant's appellate claims in any event.  (LC)

AD4 - New Decisions

The Fourth Department posted new decisions today.

AD2 vacates second felony offender adjudication

There are specific procedures in place for the adjudication of second felony offender status.  See CPL 400.21.  Among other things, a predicate felony may not be used in the adjudication if it was unconstitutionally obtained.  A prior conviction has a presumption of validity and regularity.  The defendant has the burden of rebutting this presumption with "substantial evidence."  In People v. Harris, 61 N.Y.2d 9 (1983), the Court of Appeals clarified that the CPL:

places upon the People the burden of proving beyond a reasonable doubt the existence of the previous felony conviction ..., but not its constitutionality. Once the fact of the prior conviction has been established, it is then incumbent upon the defendant to allege and prove the facts underlying the claim that the conviction was unconstitutionally obtained.

In People v. Smith (2d Dept. 11/18/2008), the defendant pled guilty to Criminal Possession of a Controlled Substance in the Third Degree and was ultimately sentenced, as a second felony offender, to 4.5 to 9 years of imprisonment.  He contended, however, that his predicate felony -- a felony charge in the Eastern District of Pennsylvania -- was unconstitutionally obtained because he was under the influence of drugs during the plea.  He claimed that he told the federal judge as much, on the record, but the judge went forward with the plea anyway.  Supreme Court granted a brief adjournment for the defendant to obtain the minutes of the federal plea. 

On the next adjournment date, the defendant reported that he had not yet received the minutes.  The sentencing court reported, however, that it had conducted its own investigation by contacting the federal judge and the defendant's attorney in that matter, none of whom supported the defendant's version of events.  The court concluded, therefore, that there was overwhelming evidence that, in fact, the plea was constitutionally obtained.

The Second Department reversed and remanded the matter for resentencing before a different judge:

Here, the defendant proposed to carry his burden by presenting the transcribed minutes of his federal plea proceeding which, he claimed, would show that his conviction had been unconstitutionally obtained because his plea was accepted despite his on-the-record statement that he was under the influence of drugs. The court did not reject his claim on the ground that such a plea would nevertheless be constitutional or that the defendant had unreasonably delayed in producing the minutes. Instead, the court rejected the defendant's claim based on the reported results of its own investigation and the information privately provided to it by a federal judge and a defense attorney. This was improper. Moreover, in addition to the fact that the defendant had no opportunity to confront the federal judge or his prior attorney, to the extent that their statements were considered by the court to prove the truth of the assertion that the defendant was not under the influence of drugs at the time of his federal plea, the statements were hearsay and not, as required by the applicable statute, "evidence admissible under the rules applicable to a trial of the issue of guilt" (CPL 400.21[7][a]).

Lessons learned?

• Second felony offender adjudications and other sentence enhance procedures should not be rushed.  If a defendant wishes to challenge the constitutionality of his prior felony conviction, give him, as well as the People, sufficient time to develop the record.  This is not to say that a defendant should be permitted to hijack and forever delay his sentencing.  He should proffer what evidence he wishes to obtain and how he proposes to get it. 
• Since these proceedings require a certain degree of formal presentation of evidence ("evidence admissible under the rules applicable to a trial of the issue of guilt" (CPL § 400.21[7][a]), judges should not investigate defendants' claims on their own.  The parties should do so and present their evidence in a manner consistent with CPL § 400.21. 

Depraved Indifference Murder Watch

Last week, the Fourth Department reversed a defendant's murder conviction because the evidence was not legally sufficient to establish that he acted with depraved indifference.  Citing Matter of Suarez v. Byrne, the court remanded for a new trial on the counts that the jury did not reach.  The case is People v. Lagasse (4th Dept. 11/14/2008).  (LC)

Release of PSR to defendant denied

Often, a defendant serving a prison sentence will seek to obtain a copy of his or her presentence report in order to prepare for a parole hearing or litigate a claim on direct or collateral review.  Justice DiMango of Brooklyn Supreme Court recently issue an opinion in People v. Johnson that gives a good overview of the law on the subject.  The court concluded that release of the PSR in the defendant's case was not warranted.

Bruton problem

People v. Pinto, decided yesterday by the Third Department, is an interesting case highlighting the so-called Bruton problem.  In this burglary and robbery case, both defendants were tried together.  A police officer read into evidence a written statement of the non-testifying co-defendant.  The court found, however, that it was not sufficiently redacted to protect the Confrontation Clause rights of the defendant whose case was on appeal:

Here, despite the removal of defendant's name, the substitution of neutral pronouns and a limiting instruction by the court, Perkins's account of the events on the day in question contained numerous incriminating references to another participant in the crime. For example, Perkins's description of his unnamed accomplice stated: "[He] [t]hen walked up the stairs [of the victim's apartment] and I followed behind him," "[w]e both tied up the girls" and "[w]e were in the apartment for 20 minutes tearing it up looking for drugs and money when we left." To compound the error, almost immediately after reading the statement, the officer stated that he had investigated its accuracy by viewing surveillance tapes at the restaurant mentioned in it to see if he could identify defendant. Further, the prosecutor's opening statement had earlier made it clear to the jury that only defendant and Perkins participated in the crime. As a result, it is inconceivable that the jury could have considered Perkins's account of his accomplice's actions as describing anyone other than defendant and, thus, the statement was insufficiently redacted to be admissible in a joint trial.

The court went on to reject the People's harmless error argument:

Under the circumstances, we cannot agree with the People that the other evidence identifying defendant as one of the home invaders is overwhelming, as illustrated by the fact that an Allen charge was necessary because at least one juror disagreed with the initial verdict finding defendant guilty.

I agree with the court's Confrontation Clause analysis.  Under the circumstances, it is difficult to imagine how the jury would not have believed that the person behind the pronoun was the defendant.  Where I part ways with the court, however, is in its harmless error analysis.  Harmless error analysis focuses on the amount and quality of the evidence and the likely effect, if any, the erroneously admitted evidence had on the fact-finder.  See People v. Crimmins, 36 N.Y.2d 230 (1975).  Here, I think the court erred in two respects.  First, it did not discuss the nature of the "other evidence" against the defendant.  Second, it appeared to use, as the sole criterion for lack of harmlessness, the fact that an Allen charge was necessary.

Determining harmlessness by looking at the course of jury deliberations -- such as the length of deliberations, whether an Allen charge was necessary, and the number of readback requests -- is problematic.  A jury that takes time to reach a verdict, that asks for readbacks and clarification, and that requires an Allen charge may merely be a jury that is taking seriously its obligation to deliberate carefully.  Or, it may indicate that only one or two jurors are unsure about the verdict.  Determining harmless error by examining the jury's external behavior is a lot like reading tea-leaves.

With that said, it may very well have been the case that the other evidence against this defendant was weak and that the co-defendant's confession was a comparatively damning piece of evidence.  It is difficult to determine from the court's opinion whether this was the case.  (LC)

AD3 - New Decisions

The Third Department announced new decisions today.  (LC)

AD1 & AD2 - New Decisions

The First and Second Departments both posted new decisions today.  (LC)

Ineffective assistance and the "Dog Pound"

People v. Ennis is a fascinating Brady and ineffective assistance of counsel case that was decided today by the Court of Appeals.  Basically, two brothers -- Sheldon and Aaron Ennis -- were charged with running a drug-selling conspiracy in Manhattan.  They ran their operation out of a hotel that they dubbed the "Dog Pound."  At trial, the People attempted to show that the brothers, and a third co-conspirator, used violence to protect their drug turf.  One of the incidents involved a shooting.  The victim testified that both Aaron and Sheldon shot at him.

During the trial, Aaron Ennis' attorney confided to Sheldon Ennis' attorney that Aaron had made a proffer to the People, during plea negotiations, that he alone had shot at the victim and that Sheldon was not present.  According to Sheldon's attorney, this information was communicated to him in confidence, with the understanding that it would not be disclosed until after trial.  The People never disclosed the contents of the proffer to Sheldon's lawyer.

The question on appeal was whether Sheldon's attorney provided effective assistance of counsel.  The defendant argued that he did not, due to a conflict of interest and the attorney's failure to take action on the disclosed information as well as the People's failure to turn over the information.  The Court of Appeals, in a unanimous decision authored by Judge Graffeo, rejected defendant's claims and affirmed his conviction.

The court first held that there was not a conflict of interest:

To date, our conflict of interest cases have generally fallen into one of two categories: cases where a potential conflict of interest was identified based on defense counsel's previous or concurrent representation of a client whose interests conflicted with those of defendant (see e.g. People v Abar, 99 NY2d 134 [2002]; People v McDonald, 68 NY2d 1 [1986]) and cases where defense counsel became a witness against defendant (see e.g. People v Lewis, 2 NY3d 224 [2004]; Berroa, 99 NY2d 134). Regardless of the circumstances, in our prior cases the potential conflicts of interest were discernible based on objective facts that were not easily subject to manipulation by the conflicted attorney. 

...

In this case, the purported conflict of interest does not arise from objective facts or circumstances external to defense counsel. Rather, it is alleged that defense counsel was torn between keeping a promise to Aaron's counsel not to reveal the exculpatory information and fulfilling his professional obligation to act in defendant's best interests. In the affidavit submitted in connection with the CPL 440.10 motion, Cooper stated that he did not tell the trial court about the alleged Brady violation or otherwise attempt to use the exculpatory information at trial because he felt constrained to remain silent, apparently based on his personal (as opposed to professional) ethical values.

The personal dilemma defense counsel describes is markedly different from the types of conflicts that we have previously recognized as triggering our conflict of interest analysis because it is entirely subjective. Many (perhaps most) attorneys would not have perceived any conflict; having learned information that they deemed useful to their client, they presumably would have pursued one of several available courses of action, including advising the trial court, ex parte and without necessarily divulging their source, that they had reason to believe there had been a proffer session in which exculpatory statements were made. For these lawyers, any personal concern stemming from the assurance of confidentiality would have been outweighed by the professional obligation to pursue the interests of a client who was on trial for serious offenses, including attempted murder. We are therefore hard-pressed to place the internal struggle cited by defense counsel in the same category as the conflicts of interest discussed in our precedents.

The court also noted that the question under the second prong is a mixed one of law and fact.  The court could not find that the inference drawn by the courts below lacked support in the record.

Turning to the question of whether counsel was ineffective for failing to make proper use of the information, the court first summarized counsel's "effective" advocacy throughout the trial.  This is an important point that many appellate attorneys overlook: Under New York's standard for ineffective assistance of counsel, the entirety of counsel's work must be examined to determine whether he or she provided "meaningful representation."  Therefore, any error must be placed in the context of the entire representation.  Here, the court found that the defendant had the assistance of an able advocate:

In this case, defense counsel performed as an effective advocate in many significant respects. He vigorously cross-examined the People's witnesses, gave a strong closing argument, and succeeded in obtaining acquittals on the most serious charges facing defendant — the three attempted murder counts (one relating to the Moody shooting and the others stemming from the stabbings of Calwell and Sherman).

The court also found that, in any event, counsel's lack of use of the information from Aaron's attorney did not deprived the defendant of effective assistance of counsel.  Importantly, the court noted that the defendant would not have been able to do anything meaningful with the information.  He could not have called Aaron to the stand (since he would have asserted the privilege against self-incrimination).  Other witnesses to the proffer could not have testified about its substance because the statement that the defendant did not shoot the victim and was not present was not against Aaron's penal interests.  Likewise, raising a Brady claim during the trial would not have resulted in a sanction against the People because:

had the statement been turned over, there would have been no avenue for defense counsel to admit it into evidence, either in the joint trial of the Ennis brothers or in a separate trial of defendant had severance been granted.

The court noted, however, that the People's failure to disclose the proffer "cannot be condoned."

So what are the key points to be learned from this case?

• An ineffective assistance of counsel claim will not succeed without a showing that the trial attorney did not offer meaningful representation.  A single or even series of judgment calls, which in retrospect were not wise moves, will not suffice to garner a new trial unless really severe.
• Proffer sessions of one co-defendant are difficult for other co-defendants to introduce into evidence.
• As always, the best practice of a prosecutor is to disclose everything that is even remotely exculpatory even if the information is not, itself, admissible in evidence. 

(LC)

COA - New Decisions

The Court of Appeals announced two new decisions today in the criminal law area:

• People v. Ennis - ineffective assistance of counsel
• Morgenthau v. Avion Resources Ltd. - service of process in a foreign country in an asset forfeiture proceeding

(LC)

Brooklyn court clerk charged in mortgage scheme

The New York Law Journal is reporting that John D'Emic, the chief deputy clerk of Brooklyn Supreme Court, has been charged with 11 counts of falsifying business records and one charge of prohibited sharing of compensation by attorneys.  Mr. D'Emic is a licensed attorney and the allegations in the indictment appear to stem from his time as a solo practitioner, before he joined the Clerk's Office. As reported by the NYLJ, Mr. D'Emic is accusing of "facilitating a $1.4 million mortgage scam in which the conspirators allegedly used fake identification to sell houses they did not own."  Mr. D'Emic is the brother of Justice Matthew D'Emic.  The Queens District Attorney's Office has more details about the indictment and allegations in a press release about the case.  (LC)

A History of the PRS Saga

In People v. Rogers (10/28/08), a Kings County Supreme case, Justice Goldberg provides a concise and effective summary of the Catu litigation concerning post-release supervision as well as the recent case, Sparber, where the Court of Appeals approved of the resentencing of defendants for the judicial imposition of PRS.   

The defendant in Rogers opposed resentencing, raising, in part, a Double Jeopardy argument.  The court rejected that claim, noting:

[I]n this case the defendant, from the perspective of an objective legal observer, did not have a legitimate expectation that PRS would not be a part of his sentence based on the fact that PRS (1) was statutorily mandated, (2) had been administratively imposed by DOCS with the approval of New York appellate courts in other cases where the sentencing court had failed to do so, (3) when that administrative procedure was held to be improper in Earley and Garner, those decisions, as well as the decision in Sparber, noted that resentencing to include a term of PRS would not be improper, and (4) following the decisions in Garner and Sparber, legislation to accomplish these resentencings was promptly enacted.

For those just getting acclimated to the PRS issue, Rogers is a helpful read.  It should be interesting to see how the Double Jeopardy litigation plays out.  (LC)