New York Criminal Law and Procedure

AT2 - New Decisions

The Appellate Term, Second Department, announced new decisions today.  (LC)

DA Morgenthau To Retire

Several media outlets, including NY1 and the New York Times, are reporting that Manhattan District Attorney Robert Morgenthau will not seek reelection this Fall.  (LC)

AD3 Reverses Manslaughter Conviction, Finds Defendant Acted in Self-Defense

In People v. Jones (3d Dept. 2/26/2009), the Third Department reversed a defendant's manslaughter and assault convictions on the basis that the jury's verdict was against the weight of the evidence.  The defendant asserted that he acted in self-defense.

What is interesting about this case is that, as the court acknowledges, much of the "defendant's testimony at trial was the subject of vigorous dispute."  Nevertheless, the court used its factual review power to overturn the conviction.  It undertook its analysis by looking to the "facts which go to the core of his claim of justification:"

before defendant had taken out his knife, he was the victim of a felonious assault perpetrated by Lamphear. For example, no evidence was presented to counter defendant's and Walker's testimony that Lamphear was the initial aggressor in this attack. In addition, it is uncontroverted that before defendant ever took out the knife, Lamphear had not only repeatedly threatened him, but physically assaulted him and Walker with his fist, and then attacked defendant with a wooden board striking him so hard that he fractured defendant's arm. Moreover, there is no evidence to support the conclusion that defendant had it in his power to retreat before being attacked by Lamphear and prior to his being struck repeatedly with the board. There is also no question that defendant struck Lamphear only once with the knife and that this occurred as defendant was fending off Lamphear's attack and attempting to safely leave the scene.

Justice Kavanagh wrote the unanimous court's opinion.  (LC)

AD1 & AD3 - New Decisions

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

A 30.30 Ethical Dilemma

People v. Price (2d Dept. 2/10/2009) raises an interesting issue about prosecutorial ethics in the context of a CPL § 30.30 claim.

The defendant in Price was charged, by felony complaint, with Attempted Disseminating Indecent Material to a Minor in the First Degree.  Approximately six months later, the Second Department decided People v. Kozlow, a case involving a similar issue: whether the evidence of this crime is legally sufficient when the defendant communicated over the Internet with an undercover police officer, believing him or her to be a minor, but did not transmit any visual sexual images.  In Kozlow, the Second Department reversed the defendant's conviction, finding the evidence legally insufficient.  The People sought leave to appeal and the Court of Appeals reversed the reversal and affirmed the defendant's conviction.

While Kozlow was bubbling up through the Court of Appeals, the Suffolk County District Attorney's Office elected not to seek an indictment in Price, reasoning that doing so would be pointless and unethical, given the Second Department's holding in Kozlow.  The DA elected to wait until after Kozlow was decided by the Court of Appeals in order to seek an indictment in Price and state ready for trial.  After he did so, the defendant brought a motion to dismiss, under CPL § 30.30, which was granted by the trial court.  The People appealed and the Second Department affirmed.

The court --- Justice Mastro writing for a unanimous panel --- rejected the People's contention that the delay between Kozlow (2d Dept.) and their statement of readiness should fall under the "exceptional circumstances" exception of CPL § 30.30(4)(g):

Initially, we note that the prosecution never sought any continuance as referenced in CPL 30.30(4)(g). Moreover, while the examples of exceptional circumstances set forth in that section are not exclusive, the statute clearly contemplates situations in which a district attorney encounters difficulty in obtaining evidence or in otherwise preparing for trial in the particular case before the court (see generally People v Washington, 43 NY2d 772; People v Robinson, 47 AD3d 847; People v Williams, 244 AD2d 587). Furthermore, although the Penal Law excludes reasonable periods of delay caused by appeals which involve the particular defendant who is being prosecuted (see CPL 30.30[4][a]), it does not similarly provide for an exclusion of time during the pendency of an appeal in an unrelated matter which merely involves similar legal issues (see People v Cortes, 80 NY2d 201, 211-212). To find otherwise would be to permit the People to charge a defendant with a crime and then hold the matter open indefinitely on the ground that a potentially relevant issue in another case before a different court might influence the open matter. Such an approach finds no support either in the language of the statute or in the cases interpreting it, and is antithetical to the very purpose of the speedy trial rule itself.

The People contend that the exceptional circumstances exclusion should be applied here because this Court's decision in People v Kozlow (31 AD3d 788) effectively placed the instant case in a "holding pattern" during which "[t]he matter could not legally or ethically have been presented to a Grand Jury nor could the People announce readiness [for trial]." However, while it is true that the case could not move forward, it never should have been placed in a "holding pattern" to begin with. Rather, once the People determined that this Court's Kozlow decision rendered the continued prosecution of the defendant impossible, they were obligated to terminate that prosecution. Had the People done so, they could have explored the possibility, if any, of commencing a subsequent prosecution of the defendant based on the reversal by the Court of Appeals in People v Kozlow (8 NY3d 554).

Accordingly, the exceptional circumstances exclusion set forth in CPL 30.30(4)(g) is not applicable to the circumstances of this case. Simply put, the term "exceptional circumstances," as used in that section and as interpreted by our courts, cannot be deemed to encompass a situation where the prosecution indefinitely holds open a pending criminal matter, which is ripe for dismissal, in anticipation of the possible establishment of case law more favorable to its position in the future.

So did the Suffolk County DA act properly or improperly in waiting to seek an indictment?  Consider:

• The court was incorrect that the problem could have been cured if the People had simply dismissed the felony complaint and re-prosecuted the case after Kozlow was finally resolved.  Only a final disposition on the merits terminates a prosecution.  See People v. Osgood, 52 N.Y.2d 37 (1980).  A nolle prosequi does not stop the 30.30 clock.
• The only discernible option was for the People to seek an indictment and state ready for trial.  Would this have been ethical?  Hadn't the Second Department just held that this type of charge was improper?  At the time, the relevant ethical rule was DR 7-103: "A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when he or she knows or it is obvious that the charges are not supported by probable cause."  The People's argment was that they could not have sought an indictment because they "knew" or it was "obvious" that the charge was not supported by probable cause in light of Kozlow.  I don't buy this argument.  Kozlow was not final until after the Court of Appeals finally disposed of it, either by denying leave or by granting leave and rendering its decision.  So long as the Suffolk DA thought that his Westchester counterpart (who was prosecuting Kozlow) had a good faith basis for its appeal to the Court of Appeals, there was nothing improper with prosecuting Price.  Obviously, if the Court of Appeals' decision in Kozlow had come out differently, Suffolk would have had an obligation to dismiss the charge against Price since at that point the law had become settled.
• If the People had pursued this option, they would have immediately faced a motion to dismiss the indictment.  The defense would have a winning argument, given Kozlow.  A prudent judge --- being informed of the continued vitality of Kozlow in the Court of Appeals --- would have held his or her decision in Price in abeyance until the case was finally resolved.  If, on the other hand, the motion to dismiss was granted, the People would note an appeal --- ethically permissible because, again, they would have had a good faith basis for prosecuting that appeal.
• I don't fault the People's motives in Price.  Delaying further action in Price made sense from many different angles, fiscal and legal.  The problem is that such a course of action --- however logical from the People's perspective --- keeps the defendant in limbo.  Given the nature of the charge in Price, I doubt that defendant was being detained. Still, the delay of 14 months was a long time for a person to put his or her life on hold.

(LC)

AD1 - New Decisions

The First Department announced new decisions today.  (LC)

COA - New Decisions

The Court of Appeals announced new decisions today:

• People v. Quinones (Jones, J.) - Apprendi challenge to persistent felony offender sentencing scheme
• People v. Passino (SSM)

(LC)

AT1 - New Decisions

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

AD1 & AD3 - New Decisions

It has been a busy day for the courts!  New decisions from the First and Third Departments.  (LC)

COA & AD2 - New Decisions

The Court of Appeals announced several new decisions today:

• People v. Guerrero (Read, J.) - mandatory surcharge, crime victim fee, and DNA databank fee are "not a part of the sentence" and "therefore, a judge need not pronounce them in a defendant's presence during sentencing."
• People v. Moye (mem.) - prosecutorial misconduct in summation (decision below)
• People v. Washington (SSM) - surcharges and fees (similar issue to Guerrero)
• People v. Harris (SSM) - surcharges and fees (similar issue to Guerrero)
• People v. Furet (SSM) - surcharges and fees (similar issue to Guerrero)
• People v. Hoti (SSM) - surcharges and fees (similar issue to Guerrero)

The Second Department has also posted new decisions.  (LC)

NYLJ: Sullivan D.A. Announces Retirement

According to the New York Law Journal, Sullivan County's District Attorney, Stephen F. Lungen, has announced that he will not seek reelection later this year.  Mr. Lungen has served for 28 years.  (LC)

AD1 - New Decisions

The First Department posted new decisions today.  (LC)

SORA, Kidnapping, and the Non-Sexually Motivated Offender

The Sex Offender Registration Act ("SORA") requires a "sex offender" to register as such with the Division of Criminal Justice Services.  SORA also requires a sex offender to keep law enforcement apprised of his address and to provide a current photograph.  Persons who call a designated number can determine if a particular individual is a registered sex offender.  Information about an offender who is at a "moderate" or "high" risk of reoffending is posted in a directory readily available on the Internet.

For purposes of SORA, a "sex offender" is a person who has been convicted of a designated offense.  Kidnapping and Unlawful Imprisonment are listed crimes, provided the victim was less than 17 and the offender was not the victim's parent.

In People v. Knox (Ct. App. 2/17/2009), three consolidated appeals decided by the Court of Appeals today, the defendants were convicted of Kidnapping and Unlawful Imprisonment, or attempts to commit these crimes.  There was no evidence that any of the defendants were sexually-motivated when they committed their crimes.  In Jackson, for example, the defendant "was the employer of a prostitute who tried to quit her job; he reacted by abducting the woman's son and telling her he would kill the child if she did not continue to work for him. Jackson pleaded guilty to attempted kidnaping."  Nevertheless, the defendants were required to register as sex offenders since they were convicted of a listed offense, the victims were less than 17, and they were not the victims' parents.  The defendants appealed, arguing that registration violated their rights to equal protection and due process.  The Court of Appeals, in a unanimous decision written by Judge Smith, summarily dispensed with the equal protection claim.

Turning to the due process challenge, the court first held that the defendants' interest at stake was in "not having their admittedly serious crimes mischaracterized in a way that is arguably even more stigmatizing, or more frightening to the community, than a correct designation would be."  The court found that this was not a "fundamental right" and, therefore, the question was whether SORA was "rationally related" to the legitimate government interest advanced by the legislation. 

The court surveyed various studies on kidnapping.  One study found that approximately two-thirds of non-family kidnappings also involved sexual assault.  Another study put the number at 46%.  Nevertheless, the Court of Appeals found the Legislature could rationally have found that these statistics "understate the problem" because victims may go missing or be unable or unwilling to describe what happened during the abduction.  In other cases, a sexual assault may be thwarted by the offender's arrest or the victim's estate.  Kidnappers may also prostitute an abducted child.

The court therefore rejected a facial due process challenge:

[T]he Legislature had a rational basis for concluding that, in the large majority of cases where people kidnap or unlawfully imprison other people's children, the children either are sexually assaulted or are in danger of sexual assault. In light of this, it was plainly rational for the Legislature to provide that, as a general rule, people guilty of such crimes should be classified as "sex offenders." We therefore reject as without merit the contention — made by Knox, but not the other two defendants in these cases — that the classification is unconstitutional on its face. The more substantial question is whether it is unconstitutional to apply the definition to the minority of cases — perhaps a small minority, but one in which we assume the present cases are included — in which there was neither a sexual assault nor any discernible risk of one. The Legislature might well have made such cases an exception to the requirement that the convicted people register as sex offenders, but we conclude that it acted rationally in not doing so.

In rejecting the defendants' "as applied" challenge, the court held:

In deciding not to exclude defendants and others similarly situated from the category of "sex offenders," the Legislature could have considered not only that cases where the term is unmerited are few, but also that the process of separating those cases from the majority in which it is justified is difficult, cumbersome and prone to error. It could rationally have found that the administrative burden, and the risk that some dangerous sex offenders would escape registration, justified a hard and fast rule, with no exceptions. Considering that no fundamental right is at stake — defendants are suffering no worse injustice than being called "sex offenders" instead of "child predators" — the Legislature could constitutionally provide that all those convicted of kidnaping or unlawfully imprisoning children not their own, or of attempting to commit those crimes, be conclusively deemed sex offenders.

(LC)

BAC Tests on Blood Already Drawn by a Hospital

In People v. Elysee (Ct. App. 2/17/2009), the defendant was arrested after being involved in a four-vehicle car accident in Brooklyn.  One passenger was killed; the defendant and several others were injured.  When the defendant was taken to a hospital, staff drew blood samples.  Later that day, Supreme Court issued an order directing the defendant to submit to a chemical test of his blood.  A second blood sample was drawn and tested.  Several days later, a search warrant was issued for the first set of blood samples.  These were seized and tested.

The primary issue on appeal was the seizure of the first set of blood samples, which had been drawn by the hospital for treatment purposes.  The Court of Appeals, in a unanimous opinion, held that the search warrant was lawfully issued and executed and affirmed the denial of the defendant's suppression motion.  The court did not address whether the seizure violated the physician-patient privilege under CPLR 4504.  Instead, the court based its decision on VTL § 1194(2)(a) and (4):

We agree with the lower courts that defendant's motion to suppress the [second] samples was properly denied, though we need not decide whether CPLR 4504 applies to these samples. Pursuant to VTL 1194[2][a], "any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test [of] . . . breath, blood, urine or saliva, for the purpose of determining the alcohol and/or drug content of the blood . . ." under certain prescribed conditions. In addition, such chemical tests can also be compelled by court order under VTL 1194 [3] when, among other circumstances, . . . "a person other than the operator was killed or suffered serious physical injury . . . ; and "such person operated the vehicle in violation of any subdivision of section eleven hundred ninety-two of this article"; and [ ] "has been placed under lawful arrest"; [ ]" has refused to submit to a chemical test . . . or is unable to give consent to such a test." Therefore, even if these samples were privileged, under the facts and circumstances of this case, the privilege was overcome when the police officers executed the court order issued pursuant to VTL 1194 [3].

Here, it is illogical to conclude that a blood sample taken at 5:30 a.m. cannot be seized pursuant to a properly issued court order, merely because the order issued after the blood was actually drawn by an authorized person. Furthermore, inasmuch as the VTL authorizes a chemical test under the circumstances of this case, and a court order issued compelling "that the defendant shall submit to a chemical test of the alcohol or drug content of his blood," the seizure of the earlier blood sample was in accord with the statute.

(LC).

COA - New Decisions

The Court of Appeals posted new decisions today:

• People v. Elysee (Jones, J.) - BAC tests on blood already drawn by a hospital; physician-patient privilege
• People v. Knox (Smith, J.) - SORA registration for non-sexually motivated acts of kidnapping
• People v. Middleton (SSM) - SORA

More on Elysee and Knox later.  (LC)

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)

COA - New Decisions

The Court of Appeals announced new decisions:

• People v. Dorm (Ct. App. 2/12/2009) (Jones, J.) - Molineux
• People v. Small (Ct. App. 2/12/2009) (mem.) - timing of Ventimiglia hearing
• People ex rel. Gill v. Greene (Ct. App. 2/12/2009) (Smith, J.) - consecutive sentencing, pronouncement of sentence
• People v. Ryan (Ct. App. 2/12/2009) (Ciparick, J.) - suppression
• People v. Maye (Ct. App. 2/12/2009) (SSM) - suppression

More on these cases at a later point.  (LC)

A Bum Rap?

In People v. Wallace (4th Dept. 2/6/2009), the defendant was charged with Murder in the Second Degree.  The People introduced and played into evidence a tape of a rap song, along with its lyrics.  The court explained:

Here, the evidence presented at trial established that defendant played a cassette tape of his favorite rap song, entitled "How I Could Just Kill a Man," two or three times over the course of two five-minute car rides shortly after the homicide. The lyrics of the song describe a murder occurring under similar circumstances as those present in the instant case.

The People offered the song as evidence of consciousness of guilt.  The Fourth Department affirmed:

We agree with defendant insofar as he contends that owning a cassette tape of rap music in general, or of any rap song in particular, is not relevant to the murder charge (see generally United States v McCrea, 583 F2d 1083, 1086). The rap song here, however, was not admitted in evidence merely for the purpose of establishing that defendant generally enjoyed rap music. Instead, the People sought to shed light on the circumstances under which defendant listened to the song, and thus the rap song was properly admitted as evidence of defendant's consciousness of guilt (see generally Cintron, 95 NY2d at 332). Moreover, although the lyrics to rap music can at times be violent and inflammatory and thus may be prejudicial to defendants, the court here alleviated any such prejudice by giving an adequate limiting instruction, which the jury is presumed to have followed (see generally People v Curtis, 286 AD2d 900, 901, lv denied 97 NY2d 728).

Unfortunately, the court's opinion does not tell us much about the rest of the evidence.  On its face, this consciousness-of-guilt "evidence" strikes me as pretty weak.  This is not a case, for example, where the defendant made an incriminating statement while the song was playing, making reference to the lyrics.  As a matter of trial strategy, it seems like this whole issue would have been a distraction, deviating the lawyers, court, and jury from the real issue: the forensic, eyewitness, and other evidence of defendant's guilt.  (LC)

Consecutive Sentencing

In People v. Taveras (Ct. App. 2/11/2009), the defendant was convicted of Criminal Sexual Act in the Third Degree and Falsifying Business Records in the First Degree.  The charges stemmed from the defendant's employment as an assistant high school principal.  He was accused of sexually abusing a number of students and then falsifying records of a summer youth employment program to show that the victims were employed by the program, when in fact they were not.   

The Court of Appeals, in a unanimous opinion by Judge Graffeo, held that it was permissible for the sentencing court to run the sentences for the two sets of crimes consecutive to one another. 

The Penal Law provides that consecutive sentences are permissible except: "(1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other."  Here, the defendant conceded that the first exception did not apply.  Instead, the question was the second exception.  The court quoted from People v. Laureano:

Because both prongs of Penal Law § 70.25 (2) refer to the 'act or omission,' that is, the 'actus reus' that constitutes the offense, the court must determine whether the actus reus element is, by definition, the same for both offenses (under the first prong of the statute), or if the actus reus for one offense is, by definition, a material element of the second offense (under the second prong). If it is neither, then the People have satisfied their obligation of showing that concurrent sentences are not required.

The two actus reus' were: oral sexual conduct and false entry in a business record. The actus reus' are not "necessary component[s]" of one another.  Accordingly, consecutive sentences were permissible.

The court rejected a defense argument concerning the statutory scheme of falsifying business records:

We also reject defendant's contention that a separate crime automatically becomes a material element of falsifying business records in the first degree whenever the People rely on the "intent to conceal" prong of that statute on the theory that concealment, as opposed to an intent to commit another crime or aid in the commission thereof, presupposes a prior completed crime. Read as a whole, it is clear that falsifying business records in the second degree is elevated to a first-degree offense on the basis of an enhanced intent requirement — "an intent to commit another crime or to aid or conceal the commission thereof" — not any additional actus reus element (Penal Law § 175.10). Furthermore, there is no indication that the Legislature intended to treat the components of first-degree falsifying business records differently, allowing consecutive sentences when a defendant makes a false entry with the intent to commit or aid in the commission of another crime, but not when a defendant performs the same action with the intent to conceal an entirely separate crime. We therefore conclude that the statutory elements of the felony sex offense are categorically discrete from the falsifying business records offense, and that "the absence of legislatively declared interdependence in their definitions is evident, compelling an interpretation that consecutive sentences are not forbidden here" (Day, 73 NY2d at 211).

(LC).

AD4 Holds that Court Attorneys are not Judges

In a curious case, People v. Bunnell (4th Dept. 2/6/2009), the Fourth Department vacated the restitution portion of the defendant's sentence and ordered a new restitution hearing.

The defendant pled guilty to Attempted Falsifying Business Records in the First Degree.  A restitution hearing was held.  Unfortunately, it was not conducted by the court, but by the court's law secretary.  The law secretary wrote a report to the judge who then "affirmed" the report and ordered the defendant to pay $8,883.99 in restitution.

The defendant did not object to this unorthodox procedure.  Nevertheless, the Fourth Department reached the question in the interest of justice.  In fact, it appears that this issue was not briefed by the attorneys because the court's opinion indicated that it was deciding it "sua sponte."  The court reasoned:

We conclude that the court erred in delegating its responsibility to conduct the restitution hearing to its court attorney. ... Penal Law § 60.27 (2) provides that, upon the defendant's request, "the court must conduct a hearing" with respect to the amount of restitution in accordance with the procedures set forth in CPL 400.30. CPL 400.30 does not contain a provision permitting the court to delegate its responsibility to conduct the hearing to its court attorney or to any other factfinder.

(LC)

AT2 - New Decisions

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

COA Affirms Dismissal of Murder Indictment for Violation of Constitutional Speedy Trial

People v. Romeo (Ct. App. 2/11/2009) will be an important decision concerning constitutional speedy trial in the context of international extraditions.  The factual history is a bit tortured.  In sum, a person was shot to death on Long Island in 1985.  By 1987, evidence linked defendant to the crime and he was ordered to provide DNA samples.  Instead of complying, the defendant absconded to Canada, eventually shooting and killing a Canadian police officer.  The defendant fled to Boston, where he was arrested and eventually extradited to Canada.  Before this occurred, however, he was indicted by a Suffolk County Grand Jury and the Suffolk District Attorney lodged a detainer.  A few days later, the defendant made the first of a series of demands to be tried in Suffolk on the murder charge.  Eventually, Suffolk County Court denied the defendant's application for a writ of habeas corpus but cautioned that the defendant's constitutional right to speedy trial might be violated if the Suffolk authorities did not proceed swiftly enough after the Canadian trial.  In 2005, the defendant was "borrowed" from Canada, pursuant to a new treaty.  He pled guilty to Manslaughter in the First Degree but nevertheless appealed, arguing that the delay between 1987 and 2005 deprived him of his constitutional right to a speedy trial.  The Second Department agreed.

The Court of Appeals affirmed the dismissal of the indictment.  Applying the five Taranovich factors, the court first noted that the length of the delay was "extraordinary."  The "genesis" of this delay was the People's failure to seek the defendant's extradition after his trial in Canada.  The court rejected the People's argument that they were not at fault for the delay.  The People's central argument concerned a letter they had received from a Canadian official in 1987 listing the various options for returning the defendant after his conviction in Canada.  "

The People argue that the correspondence they received from Canadian officials justified their decision to defer prosecution and the ensuing lengthy delay. Defendant does not suggest that the People acted with bad-faith, which obviously would weigh heavily in favor of dismissal of the indictment (see Doggett, 505 US at 656). But even if acting under the mistaken belief that defendant's presence could be obtained in Suffolk County promptly after the Canadian trial, the People still knew or should have known that there was no guarantee that defendant would be brought back to Suffolk County in a timely manner. They were advised that the extradition treaty in effect would have enabled the People to request defendant's extradition, which the Canadian authorities had the discretion to grant or defer until the completion of defendant's sentence. The People were required to, at the very minimum, make such a request for defendant's return. By deferring prosecution and choosing not to attempt to extradite defendant, the People ran the risk of a speedy trial violation.

The fact that a defendant is incarcerated outside of the State makes it incumbent upon the People to make diligent, good faith efforts to secure his presence in the state for arraignment and trial (see Hooey, 393 US 374, 383 [1969]). Where the defendant is incarcerated in another country, failing to make an extradition request has been one factor that courts have viewed as evidencing a lack of diligent efforts on the part of the prosecution in bringing defendant to trial promptly (see United States v Pomeroy, 822 F2d 718, 721-722 [8th Cir 1987]; United States v McConahy, 505 F2d 770, 773-774 [7th Cir 1974]). Of course, where the foreign country demonstrates its clear intention to deny an extradition request, the People are under no obligation to make a futile gesture. But nothing in this record demonstrates that a request here would have been futile, and thus this case differs from cases where an extradition request would clearly fall on deaf ears (see United States v Blanco, 861 F2d 773, 778 [2d Cir 1988] [Colombian government repeatedly refused to extradite Colombian nationals]; United States v Walton, 814 F2d 376, 379 [7th Cir 1987] [Swedish officials denied informal requests from the United States State Department to extradite the suspect]). An extradition request might have led to cooperation in securing defendant's return to Suffolk County (see Pomeroy, 505 F2d at 721-722 [because it was at least possible that Canada would have honored an extradition request, the prosecution's failure to make an extradition request evidenced a lack of diligent efforts to secure the defendant]).

The court also concluded that the defendant suffered prejudice from the delay, noting, in particular, that the defendant had intended to raise a mental illness defense, which would have been difficult to establish 12 years after the crime.  (LC)

AD3 & AD4 - New Decisions

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

COA - New Decisions

There are new decisions today from the Court of Appeals:

• People v. Williams (mem.) - Sandoval
• People v. Taveras (Graffeo, J.) - consecutive sentencing
• People v. Romeo (Ciparick, J.) - constitutional speedy trial
• People v. Rouse (mem.) - 30.30

More on Taveras and Romeo later.  (LC)

Defendants Will Say the Darndest Things

People v. Ramirez (1st Dept. 2/10/2009), decided today, involves an unusual set of facts.  A receptionist for the NYPD was standing outside of her precinct, taking a break, when she was approached by the defendant.  He told her, in Spanish, that he needed a lawyer.  The receptionist, who also spoke Spanish, thought that he was a crime victim and informed him that he was at a police station, not a law office. In any event, she asked if she could help him.  In response, the defendant stated that he had shot a person in the eye.  Fearing he was armed, the receptionist asked the defendant where the gun was located.  He replied that he had discarded it.

After being arrested, the defendant was processed.  In the defendant's presence, a lieutenant asked another officer, in classic NYPD parlance, "Has this guy been tossed for a gun?"  The defendant spontaneously stated, in English, that he had discarded the gun.

The First Department concluded that the first statements, made to the receptionist, were admissible.

Defendant's statement admitting the homicide was admissible regardless of whether the receptionist could be deemed an agent of the Police Department. When he made this statement, he had not made an unequivocal request for counsel. When he said he wanted a lawyer, he was not being questioned about anything, and he provided no context for his reference to a lawyer; it was not until after he admitted the homicide that the context became clear. For all the receptionist knew, he could have been looking for help in locating a personal injury lawyer. We note that the receptionist was neither trained nor authorized to investigate crimes, and that one of her duties was to help people who mistakenly came to the police station for assistance in civil matters. In any event, even if defendant had invoked his right to counsel, his confession was spontaneous under the standard applicable where the right to counsel has attached (see People v Campney, 94 NY2d 307 [1999]; People v Harris, 57 NY2d 335, 342 [1982], cert denied 460 US 1047 [1983]). The simple question "Can I help you in any way?" and its surrounding circumstances cannot even remotely be considered an interrogation environment.Even assuming that defendant's right to counsel had attached by the time the receptionist asked him whether he had the weapon on his person, that inquiry was proper under the public safety exception (see New York v Quarles, 467 US 649, 655-656 [1984]; People v Palmer, 263 AD2d 361 [1999], lv denied 93 NY2d 1024 [1999], cert denied 528 US 1051 [1999]).

WIth respect to the second statement, the court noted that the statement was not introduced at trial and that the eventual recovery of the gun was not a fruit of this statement.  The court also found that the statement was spontaneous and not a violation of the right to counsel. 

Likewise, a third statement, made to a detective, was never admitted into evidence.  (LC)