New York Criminal Law and Procedure

AT1 - New Decisions

The Appellate Term, First Department, posted new decisions today.  (LC)

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)

AD3: Depraved Indifference Murder and Child Abuse

In People v. Baker (3d Dept. 1/29/2009), the defendant was charged and convicted of Murder in the Second Degree under Penal Law § 125.25(4).  Section 125.25(2), the general depraved indifference murder statute, requires a "grave risk of death" (emphasis added) to a person, while § 125.25(4) provides that an adult is guilty of depraved indifference murder if he creates a "grave risk of serious physical injury or death" to a child less than 11.

The victim was a 20-month-old child of the defendant's girlfriend.  The child made crayon marks on defendant's television.  As a result,

defendant struck him, and then he placed the child in a corner of the hallway to the apartment. When the child's crying continued, defendant reportedly went to the hallway, lifted him to eye level, shook him repeatedly and then threw him to the floor. He landed with his back and head striking the floor. The child was dead within three hours.

The Third Department rejected a weight-of-the-evidence challenge and upheld the defendant's conviction:

Here, there was evidence that defendant whose violence toward the child had resulted in the child receiving medical care only three days earlier struck the child and placed him in a corner in the hallway. When the 20-month-old cried, defendant, who was estimated as 6 feet 5 inches tall, brought the child up to his eye level, shook him and then threw him to the floor. Although the child stopped breathing and went limp, defendant directed the child's mother to delay calling for help. A forensic pathologist testified that the infant's cause of death was blunt force injuries to the head. Having weighed and "assessed the evidence in light of the elements of the crime as charged to the jury" (People v Johnson, 10 NY3d 875, 878 [2008]), we find unavailing the contention that the verdict is against the weight of the evidence (see People v Heslop, 48 AD3d 190, 193 [2007], lv denied 10 NY3d 935 [2008]; People v Maddox, 31 AD3d 970, 972-973 [2006], lv denied 7 NY3d 868 [2006]; see also People v Gratton, 51 AD3d 1219, 1220-1221 [2008], lv denied 11 NY3d 736 [2008]).

(LC).

AD1 & AD3 - New Decisions

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

Inventory Searches: The Factual Predicate

I have taught Criminal Procedure—the law of search and seizure—several times.  It is a fascinating subject.  I find the law of inventory searches particularly interesting.  Unfortunately, I have observed many cases where key evidence was suppressed because the prosecutor did not properly elicit the requisite factual predicate for the search itself.  People v. Farquharson (Sup. Ct. Bronx Co. 1/26/2009) is one such case.  In a written decision posted this week, Justice Dawson suppressed evidence recovered during a purported inventory search.

The case was a simple DWI.  Highway unit officers observed the defendant driving erratically.  When they pulled him over, they detected the usual signs of intoxication and observed marijuana in plain view.  They arrested the defendant.  During a subsequent search of the vehicle, the officers discovered additional drugs.

The sole testimony regarding the inventory procedure was summarized by the court:

According to [Police Officer] Wiley, the standard police procedure in such a situation is to take custody of the vehicle by towing it and to perform an inventory search of the vehicle. Id. Wiley testified that an inventory search of the vehicle is done to make sure there are no valuables left unsecured in the vehicle for which Wiley would be responsible. Id. Wiley recovered the two bags of marihuana from the vehicle and then, during an alleged inventory search of the Pathfinder, he seized an additional six bags of marihuana from a radio box on the rear seat. Id. There was no other testimony regarding police procedures for inventory searches, or whether they were followed in this case. After the marihuana was recovered, Vickery testified that the police continued to search the car for more drugs or weapons.

The court suppressed the second set of drugs because the People had not established that the police were conducting a proper inventory search:

In People v. Johnson, 1 NY3d 252 (2003), the Court of Appeals held that the People had the "burden of establishing a valid inventory search" at a suppression hearing, and that the purposes of an inventory search were threefold: "to protect the property of the defendant, to protect the police against any claim of lost property, and to protect police personnel from any dangerous instruments." Id. at 256 (citation omitted). To meet that burden, the People should produce evidence demonstrating: (1) the existence of a departmental policy regarding inventory searches, (2) that the policy is "rationally designed to meet the objectives that justify inventory searches," and (3) that the particular search was conducted properly and in compliance with established procedures. See id.Id. The Court concludes that the People did not meet their burden of establishing the existence of any of the foregoing. Indeed, Vickery rather candidly testified that after the marihuana was recovered, "we searched the vehicle more for any kind of drugs of weapons[]" and "that's why the car was searched more." See, Hearing Minutes at p. 40. This is exactly the type of "general rummaging . . . to discover incriminating evidence" that Johnson prohibits. See Johnson, 1 NY3d at 256 (internal quotation marks and citation omitted); see also People v. Gomez, 50 AD3d 407, 408 (1st Dept.) (suppressing physical evidence recovered pursuant to alleged inventory search because the People failed to establish compliance with Johnson), lv. to appeal granted, 2008 NY Slip Op. 74219(U) (June 10, 2008). Further, the "hallmark" of a real inventory search is the creation of a meaningful inventory list of the vehicle's contents.

In order to meet the Johnson standard, prosecutors should:

• Introduce into evidence the relevant police department's inventory search procedure.  The NYPD's is contained in its Patrol Guide.  A certified copy of the section on inventory searches should be introduced into evidence as People's Exhibit #1.  It is the most important piece of evidence at a suppression hearing where the People intend to rely on the inventory search exception.
• Determine whether the police followed the procedure.  If the officers substantially deviated from the policy, it is likely the evidence will be suppressed.  However, minor deviations are not necessarily going to result in suppression.  I argued, for example, in People v. Moya that the police were justified in doing an on-the-scene search, rather than at the impound lot, because they had already discovered at least one drug trap and the car was blocking a bus stop and needed to be moved immediately.  There was insufficient time to wait for a tow truck.  For the officer's safety, he was justified in conducting the inventory search on the scene.  The First Department upheld the search.
• Elicit from the police officer how he or she followed the procedure.  Have the officer discuss the training he received at the Police Academy concerning inventory searches.
• Elicit from the police officer why he or she conducted the search. 
• Introduce into evidence the inventory form that was created.  The NYPD uses a special voucher for vehicles.  It must be introduced into evidence.  If it was not created, the case will likely fall outside of the inventory search exception. 

In short, this is not an area in the police officer's direct examination that can be quickly glossed over.

In addition, police departments must ensure that their officers receive training on:

• the reasons for the inventory search exception (officer safety, safeguarding valuables, protecting against false claims of loss);
• the importance of conducting a thorough search.  After all, the purpose is not just to find weapons but also to locate valuables that should be inventoried;  and
• how to fill out the department's inventory form.

(LC)

Notice of Right to Testify Before the Grand Jury

In People v. Klahn (Cattaraugus Co. Ct. 1/21/2009), Judge Himelein granted a defendant's motion to dismiss the indictment, with leave to the People to re-present, because the defendant was denied the opportunity to testify before the Grand Jury.

The facts were simple.  The defendant, initially pro se, was arraigned before the Town Court on burglary charges.  The defendant then retained counsel, who wrote the prosecutor and requested that the case be "diaried."  In the meantime, Town Court forwarded the case to County Court and the defendant was indicted.

County Court held that, on the record before it, the defendant had been denied his right to testify before the Grand Jury:

Here, defendant had been arraigned in the local court and was presumptively entitled to the notice. It is unclear from the papers if defendant appeared again in Town Court. The district attorney's answering papers shed no light on what occurred in the local court, stating only that the case was "divested" to county court on June 19, 2008.

The Court of Appeals had steadfastly protected the "valued statutory option" for a defendant to testify at the grand jury (People v. Evans, 79 NY2d 407, 413- 414, 583 NYS2d 358 [1992]; People v. Smith, 87 NY2d 715, 642 NYS2d 568 [1996]). Here, the forwarding of the papers to county court without a preliminary hearing being held or waived, was an improper divestiture.

Anticipating the district attorney's argument that his office cannot know whether a preliminary hearing was validly waived or not, several points must be made. First, the divestiture papers forwarded from Town Court to the district attorney's office show that a hearing was neither held nor waived. Further, the district attorney's office knew that Mr. Vella represented the defendant and it would have been a simple matter to send him a grand jury notice. Finally, given what the Court of Appeals has said about the importance of a defendant's right to appear before a grand jury, the onus would appear to be on the People to insure that a defendant is not denied that right.

County Court concluded with an interesting observation about the end result:

The court wonders about the efficacy of this decision since it is doubtful that defendant will actually testify at a future grand jury.

(LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

AT1 - New Decisions

The Appellate Term, First Department, posted new decisions today.  (LC)

Does admission of a cell phone include admission of its call history logs?

This week, the Third Department decided People v. Francis (3d Dept. 1/22/2009), a drug case out of Rensselaer County.  The issue was the propriety of the prosecutor's summation, in which he or she referenced various "call history" logs in a cell phone.  The cell phone had been admitted into evidence, but not its call history logs.  The Third Department concluded that the prosecutor's summation was improper, not responsive to the defense summation, not harmless, and ordered a new trial.

This was a dropsy case.  The defendant was approached by police officers on the grounds of a public housing project.  The defendant fled, dropping drugs, cash, and a cell phone along the way.  The issue at trial was the defendant's identity as the perpetrator.  He claimed that it was another person who ran from the police and dropped the drugs, cash, and phone.

At trial, the People moved the cell phone into evidence "for the purpose of displaying pictures of defendant contained therein, apparently to prove that the telephone belonged to him."  No witness testified as to the contents of the phone—specifically, the log of incoming and outgoing calls.  Nevertheless, during summation, the prosecutor "point[ed] out to the jury the specific dates and times of certain calls logged on the telephone, and ... invite[d] the jury to view the contents of the telephone during deliberations."  During  deliberations, the jury inquired whether it could consider, as evidence, the call logs.  The Third Department's opinion does not indicate how the trial court responded to that request.

This is an incredibly interesting issue.  Essentially it raises the question of whether the admission of a "container" also includes, ipso facto, the admission of its contents, electronic or otherwise.  I did some quick research and have not found many authorities on point.  There is an unpublished decision in Washington State that seems to suggest that, once admitted into evidence, the whole exhibit comes into evidence and the jury has full access to it, including its contents.  However, there are New York cases that directly state otherwise.  For example, in People v. Givans (4th Dept. 11/23/2007), the court held that it was error to permit the jury to access text messages in a cell phone when there was no testimony authenticating the texts. 

If a proper foundation has been laid for the admission of the "container" (here, the officers presumably identified the cell phone as the one dropped by the defendant), why is there prohibition on examining its contents?  I suppose a concern is that the logs themselves are subject to tampering and, therefore, a chain of custody has to be established.

Lesson learned?  If you want a jury to consider the electronic contents of a cell phone or other electronic device, it is best to have the logs, texts, etc., separately admitted.  Merely admitting the container itself will not suffice. In addition, it seems that whenever a cell phone is admitted—but no foundation has been laid as to its contents—the trial court must issue an instruction to the jury not to power on the cell phone.  In this case, the trial court would have had to go further and instruct the jury that, while it may view the photos, it may not access the call history logs, text messages, and other contents.  (LC)

AD2 - New Decisions

The Second Department has posted new decisions. (LC)

AD3 - New Decisions

The Third Department posted new decisions today.  (LC)

AD1 - New Decisions

The First Department posted new decisions today.  (LC)

Molineux and Modus Operandi

Judge Barry Kamins has a column in the New York Law Journal (1/21/2009) about People v. Arafet (3d Dept. 8/21/2008), a case involving the application of the Molineux rule.  Both the case and the column are worth a read. 

In Arafet, the defendant was charged with stealing the trailer portion of a tractor trailer.  The trailer contained copy machines, printers, and other electronics equipment.  The trial court permitted the People to introduce evidence of "defendant's involvement in prior thefts of trailers containing large quantities of bulk merchandise."  The Third Department, in a 3-2 ruling, concluded that the trial court did not abuse its discretion in admitting the evidence:

With respect to County Court's ruling allowing the People to use evidence of prior uncharged hijackings of trailers that involved defendant, as a general rule, evidence of a defendant's prior bad acts and criminal convictions cannot be introduced as part of the People's case-in-chief to show criminal propensity (see People v Blair, 90 NY2d 1003, 1004-1005 [1997]; People v Alvino, 71 NY2d at 241-242; People v Ventimiglia, 52 NY2d 350, 359 [1981]). Such evidence may be permitted, however, if it falls within one of the general rule's exceptions, such as where it is used to prove an identical or unique modus operandi or the existence of a common scheme or plan (see People v Rojas, 97 NY2d 32, 37 [2001]; People v Alvino, 71 NY2d at 242; see generally People v Molineux, 168 NY 264, 295 [1901]). Modus operandi evidence may be admissible to establish identity if its probative value outweighs the risk of prejudice to defendant (see People v Resek, 3 NY3d at 389) and where, as here, the identity of the perpetrator has not been conclusively established and the case relies heavily on circumstantial evidence (see People v Toland, 284 AD2d 798, 803-804 [2001], lv denied 96 NY2d 942 [2001]). The evidence of the uncharged crime, however, must demonstrate a unique and distinctive modus operandi so as to make the evidence highly probative of identity (see People v Robinson, 68 NY2d 541, 547-548 [1986]; People v Beam, 57 NY2d 241, 251 [1982]; People v Condon, 26 NY2d 139, 144 [1970]). "The uniqueness requirement does not mandate a ritualistic pattern, but the crime pattern as a whole must be distinctive" (People v Latimer, 24 AD3d 807, 809 [2005], lv denied 6 NY3d 849 [2006] [citation omitted]; see People v Toland, 284 AD2d at 803]).

While the hijacking of a large tractor trailer may be considered by some a "common occurrence," the fact is that the theft of such a large vehicle and the disposition of its cargo is a complicated criminal undertaking requiring numerous accomplices, extensive planning and significant coordination. Defendant's prior participation in such extraordinary criminal behavior under the circumstances presented is relevant to determine whether he was in fact the perpetrator of the hijacking at issue (see People v Allweiss, 48 NY2d 40, 48-49 [1979]).

Judge Kamins provides a helpful summary of Molineux and analysis of Arafet.  Ultimately, he concludes that Arafet could have far-reaching implications for criminal prosecutions in New York:

It appears that the decision in Arafet marks the first time a court has held that a defendant's commission of a crime requiring expertise or skill, in and of itself, can justify the introduction of that prior uncharged crime to establish identity. ... Prosecutors could reasonably argue that other types of crimes also involve complicated criminal undertakings requiring extensive planning and significant coordination. For example, a prosecutor could offer a prior conviction for mortgage fraud, identity theft or computer tampering on the theory that such conduct, in and of itself, is relevant to prove the identity of the defendant for the crime charged. Based upon Arafet, one could reasonably argue that the skill set required to commit these crimes is at least equal to, if not greater than, the skills required to complete a trailer hijacking.

Leave to appeal was recent granted and it will be interesting to see what the Court of Appeals does with the case.  (LC)

Rare finding of ineffective assistance of counsel

People v. Fleming (1st Dept. 1/20/2009) is a rare case in which the First Department found, after examining the totality of the record, that the defendant received ineffective assistance of counsel:

Counsel's [sic] demonstrated her lack of basic comprehension of criminal law and procedure through her persistent frivolous conduct at multiple stages of the proceeding, including, among other things, pretrial motion practice, a purported interlocutory appeal, the suppression hearing, requests for jury instructions, posttrial motions and sentencing. Counsel's woeful lack of knowledge approached the traditional "farce and a mockery of justice" standard (see People v Tomaselli, 7 NY2d 350, 353-354 [1960]). This case presented an issue of whether defendant was aware of the illicit contents of a package he accepted in a controlled postal delivery. Counsel completely and prejudicially misunderstood and mishandled this issue, and defendant was deprived of a fair trial as a result. We find counsel's unfamiliarity with the sentencing parameters for defendant's crime particularly troubling in view of the fact that before trial defendant received a beneficial plea offer of three to nine years.

Ordinarily, IAC claims can only be addressed through a 440 motion because a thorough analysis of the claim requires consideration of matters outside of the record, particularly counsel's reasons for pursuing particular strategies.  These cases, in turn, get to the Appellate Division through one of two vehicles: a permissive appeal (from the denial of a 440 motion) or a direct appeal (when a 440 motion is granted).  Here, the four corners of the record contained enough evidence of ineffectiveness and so the defendant's appellate counsel was able to raise the claim on direct appeal.  In other words, implicit in the First Department's ruling was that there was no legitimate strategy that could explain counsel's decisions.

An important note about IAC claims, in general.  To succeed in winning a new trial, a defendant must ordinarily do more than show a single error by his trial attorney.  Counsel's effectiveness must be examined in the context of the totality of his or her performance.  A court will examine the motions he filed, his examination of witnesses, objections raised, and arguments in summation.  Fleming demonstrates that, in the usual case, an IAC claim will be sustained only if counsel showed a pattern of prejudicial errors.  (Of course, there are exceptions to this rule.  A single error could result in a new trial if it was sufficiently egregious.)  (LC)

AD1 - New Decisions

The First Department posted new decisions today.  (LC)

AD2 Grants Article 78 Petition, Citing the Thirteenth Amendment

In a rare move, the Second Department granted an Article 78 petition, enjoining the prosecution of a criminal case on constitutional grounds.  The case, Matter of Vinluan v. Doyle (2d Dept. 1/13/2009), involved a group of nurses who resigned from their positions at a Long Island nursing home over a lack of pay, inadequate housing (they had been recruited from the Philippines), and the failure of their employer to obtain necessary licenses for them.  A Grand Jury subsequently indicted them, along with their lawyer, for Conspiracy in the Sixth Degree based on the theory that they had endangered the lives of their patients by resigning.  They were also charged with multiple counts of Endangering the Welfare of a Child and Endangering the Welfare of Physically-Disabled Patients.

The Second Department found that the prosecution violated the nurses' Thirteenth Amendment rights:

In the case at bar, the Penal Law provisions relating to endangerment of children and the physically disabled, which all the petitioners are charged with violating, do not on their face infringe upon Thirteenth Amendment rights by making the failure to perform labor or services an element of a crime. The Supreme Court's rationale in Pollock, Taylor, and Bailey is nevertheless instructive because the indictment handed down against the petitioners explicitly makes the nurses' conduct in resigning their positions a component of each of the crimes charged. Thus, the indictment places the nurses in the position of being required to remain in Sentosa's service after submitting their resignations, even if only for a relatively brief period of notice, or being subject to criminal sanction. Accordingly, the prosecution has the practical effect of exposing the nurses to criminal penalty for exercising their right to leave their employment at will. The imposition of such a limitation upon the nurses' ability to freely exercise their right to resign from the service of an employer who allegedly failed to fulfill the promises and commitments made to them is the antithesis of the free and voluntary system of labor envisioned by the framers of the Thirteenth Amendment. While we are, of course, mindful that protecting vulnerable children from harm is of enormous importance, the fact that the prosecution may serve a legitimate societal aim does not suspend the nurses' constitutional right to be free from involuntary service. ...

Guided by these principles, we conclude that this is not an exceptional case justifying a restriction of the petitioners' Thirteenth Amendment rights. The nurses in this case were engaged in private employment rather than the performance of public service. Moreover, while they possessed the
education and training necessary to care for chronically ill patients, including children on ventilators, these skills are not so unique or specialized that they cannot be readily performed by other qualified nurses. Furthermore, although an employee's abandonment of his or her post in an "extreme case" may constitute an exceptional circumstance which warrants infringement upon the right to freely leave employment, the respondent District Attorney proffers no reason why this is an "extreme case." The nurses did not abandon their posts in the middle of their shifts. Rather, they resigned after the completion of their shifts, when the pediatric patients at Avalon Gardens were under the care of other nurses and staff members. Moreover, while the indictment alleges that the nurses collectively resigned "knowing that their resignations and the prior resignations at other
Sentosa Care facilities would render it difficult for Avalon Gardens to find, in a timely manner, skilled replacement nurses for Avalon Gardens' pediatric patients," it is undisputed that coverage was indeed obtained, and no facts suggesting an imminent threat to the well being of the children
have been alleged. Indeed, the fact that no children were deprived of nursing care played a large role in the Education Department's decision to clear the nurses of professional misconduct. Under these circumstances, we cannot conclude that this is such an "extreme case" that the State's
interest in prosecuting the petitioners for misdemeanor offenses based upon the speculative possibility that the nurses' conduct could have harmed the pediatric patients at Avalon Gardens justifies abridging the nurses' Thirteenth Amendment rights by criminalizing their resignations from the service of their private employer.

With respect to the nurses' attorney, the court found that the prosecution violated his freedom of expression:

As charged in the indictment, it is clear that Vinluan's criminal liability is predicated upon the exercise of ordinarily protected First Amendment rights. The indictment asserts that Vinluan committed the charged offenses by counseling the nurses to immediately resign from Avalon Gardens, and filing a discrimination claim on their behalf. Thus, the indictment affirmatively seeks to punish Vinlaun for providing legal advice, which he avers was given in good faith. The District Attorney does not dispute that Vinluan acted in good faith, but urges this court to conclude that his legal advice to the nurses was not constitutionally protected because he advised them to commit a crime. However, since the nurses' conduct in resigning cannot, under the circumstances of this case, subject them to criminal prosecution, we cannot agree that Vinlaun advised the nurses to commit a crime.
 
More importantly, regardless of whether Vinlaun's legal assessment was accurate, it was objectively reasonable. We cannot conclude that an attorney who advises a client to take an action that he or she, in good faith, believes to be legal, loses the protection of the First Amendment if his or her advice is later determined to be incorrect. Indeed, it would eviscerate the right to give and receive legal counsel with respect to potential criminal liability if an attorney could be charged with conspiracy and solicitation whenever a District Attorney disagreed with that advice. The potential impact of allowing an attorney to be prosecuted in circumstances such as those presented here are profoundly disturbing. A looming threat of criminal sanctions would deter attorneys from acquainting individuals with matters as vital as the breadth of their legal rights and the limits of those rights. Correspondingly, where counsel is restrained, so is the fundamental right of the citizenry, bound as it is by laws complex and unfamiliar, to receive the advice necessary for measured conduct.

Moreover, by placing an attorney in the position of being required to defend the advice that he or she has provided, the state compels revelation of, and thus places within its reach, confidential communications between attorney and client. ... A prosecution which would compel the disclosure of privileged attorney-client confidences, and potentially inflict punishment for the good faith provision of legal advice is, in our view, more than a First Amendment violation. It is an assault on the adversarial system of justice upon which our society, governed by the rule of law rather than individuals, depends.

(LC).

AD2 - New Decisions

The Second Department posted new decisions today.  (LC)

AD1 & AD3 - New Decisions

The First and Third Department posted new decisions today.  The Court of Appeals also had a new decision, but it was not in the criminal law area.  (LC)

New Article on Depraved Indifference Murder and DWI

A student at St. John's Law School, Ryan Mahoney, has published a note in the St. John's Law Review entitled Depraved Indifference Murder in the Context of DWI Homicides in New York.  It has a nice summary of the history of depraved indifference murder as well as an informative discussion about its application to vehicular/DWI homicides.  I encourage you to read Mr. Mahoney's article, particularly if you handle vehicular homicide cases in your practice.  (LC)

More on Chief Judge-Designate Lippman

The Simple Justice blog has an interesting commentary on the appointment of Justice Lippman as the next Chief Judge of the Court of Appeals.  (LC)

Testilying?

"Testilying" was a term coined by NYPD officers during the 1970s and 1980s to refer to lying in court, usually in suppression hearings.  I have written about the phenomenon before.  When a case involves a simple factual dispute between a police officer, on the one hand, and a defendant, on the other hand, judges and juries will often credit the police officer over the defendant, who has an obvious self-interest in committing perjury.  Still, there are certainly cases where trial/motion judges find a police officer's testimony incredible.  Rare, however, is the appellate case where an intermediate appellate court, exercising its factual review power, discredits a police officer's testimony from the cold trial minutes.  People v. Henry (App. Term. 2d Dept. 1/14/2009) presented such a case for the Appellate Term, Second Department.

The charge was Patronizing a Prostitute in the Fourth Degree.  The People's evidence was:

The evidence of the crime principally consisted of the testimony of an undercover female police officer, who averred that on a cold autumn evening, defendant pulled his automobile over to the curb where she was pacing to and from, and engaged her in conversation. He allegedly asked her to perform a sex act in exchange for $10. According to the officer, she told defendant to wait a moment, and she walked away to alert her backup team that a proposition had been made. Defendant did not remain at the curb, and as he drove from the location, he was apprehended by police personnel assigned as the undercover officer's backup team.

At trial, no tape recordings of the purported verbal exchange with defendant were produced, nor was there any corroborating testimony to the conversation from the backup personnel, although the undercover officer was equipped with a transmitter ("Kel device"). The undercover officer testified that she had a microphone under her clothing but it was not operating properly.

Another officer, who was a member of the backup team, testified that the Kel microphone was a device used to either record or to hear exactly what is taking place, and that a police vehicle" on another street was listening (cf. People v Rivera, 59 AD2d 874, 875 [1977]). The backup officer added that she could not hear what was said but could see defendant, and his conversation with the undercover officer lasted not more than about a minute or so. The backup officer did not observe an exchange of money.

The defendant took the stand in his own defense:

Defendant testified and denied the allegation. He supplemented his income by using his Lincoln Town Car to drop off friends, coworkers or friends of theirs. He asked the undercover officer if she was looking for a cab, and she said, "No." She told him that if he gave her $10, they could "hang out." Defendant said, "No, that's all right," and proceeded to leave. Thereafter, two vehicles "came from somewhere" and stopped him, and he was arrested.

The Appellate Term found the evidence legally sufficient but concluded that the verdict was against the weight of the evidence.  (LC)

AT2 - New Decisions

The Appellate Term, Second Department, has posted new decisions.  (LC)

NYLJ: Gov. Patterson to Nominate Justice Lippman as Chief Judge

The New York Law Journal is reporting that Justice Jonathan Lippman, Presiding Justice of the First Department, will be nominated as Chief Judge of the New York Court of Appeals.

COA & AD1 - New Decisions

The Court of Appeals and First Department announced new decisions today.  (LC)

EWC - The Case of the Intoxicated Defendant, Temporary Abandonment, and the Dirty/Squalid Apartment

NYC Criminal Court Judge Elisa S. Koenderman recently decided the defendant's motion to dismiss a complaint for facial sufficiency in People v. Perez (NYC Crim. Ct. 1/12/2009).  In Perez, the defendant was charged with four counts of Endangering the Welfare of a Child (EWC) based on the following set of facts:

[O]n June 22, 2008 at approximately 3:12 a.m., while in an intoxicated condition after having consumed "three (3) bottles of Corona and two (2) forty (40) ounce bottles of Heineken," the defendant left her four children ranging in age from one to thirteen years, alone for ten minutes in an apartment where there was "urine on the floor . . cockroaches crawling on the floor of the apartment, in the kitchen, on the mattresses, and crawling over the sleeping children . . . dirty clothes and laundry all over the apartment . . . dirty pots and pans in the kitchen . . . [and] clorox bleach bottles in the tub of the dirty bathroom." The complaint further alleges that there was no crib for the one-year-old. Lastly, the complaint alleges that the defendant admitted that she was the mother of the children and that she was responsible for their care at the time.

The court summarized its decision as follows:

Contrary to defendant's contention, the defendant did more than just leave her children alone in an apartment for ten minutes, or drink five bottles of beer while responsible for the care of her children, or keep a dirty house. The defendant isolates each one of these actions from the other, and in so doing, attempts to characterize each action in and of itself as noncriminal, if not wholly innocuous. But the defendant did not simply do one of these things separately and apart from the others; she did all of these things in conjunction, and the entirety of her alleged conduct, both her acts and omissions, provide reasonable cause to believe that she committed the offense of Endangering the Welfare of a Child against each one of her children.

Nevertheless, the court granted the motion to dismiss, with granting the People leave to refile a superseding complaint, because the complaint, as drafted, did not contain non-hearsay allegations of the children's ages:

Although the complaint does contain admissions from the defendant that she is the children's mother and is responsible for their care, because of the way in which the complaint is drafted, the allegations as to the dates of birth of the complainants cannot be attributed to her. The defendant's admissions concerning her relationship and responsibility toward the complainants are contained in the fourth factual paragraph, and are made by the deponent officer as "informed by" the defendant. The allegations regarding the complainants' dates of birth are contained in the third factual paragraph and are made directly by the deponent officer. Had the complaint been drafted such that the allegations as to the complainants' dates of birth were made by the deponent officer as "informed by" the defendant, their admitted mother, they would not be hearsay (Prince, Richardson on Evidence § 8-201, et seq. [Farrell 11th ed]). Since, however, these allegations are made by the deponent officer, who was not present at the complainants' birth, they are rank hearsay. Moreover, no birth certificate, or other supporting deposition, has been filed to convert these allegations to non-hearsay. Accordingly, the complaint may not be deemed a facially sufficient information.

Perez contains a helpful summary of the law of EWC and is worth a read if you handle these types of cases on a frequent basis. 

Ultimately, while I agree with Judge Koenderman's legal analysis, I question whether a prosecution of this case in Criminal Court is the best move by the government.  If the facts of the complaint are accurate, there is a good case for a finding of civil neglect and for intervention by child welfare authorities.  There may be remedies, short of removal and termination of parental rights, that can help this family.  The Family Court is in the best position to provide help to this family, given the availability of law guardians, social workers, and various placement options in that court.  The criminal justice system, on the other hand, is ill-equipped to rehabilitate a broken family environment.  Of course, there is no reason why two prosecutions --- criminal and civil --- cannot happen simultaneously.  However, I'm not sure how criminal prosecution, on top of a Family Court case, would help matters for the defendant's children.  (LC)