New York Criminal Law and Procedure

AT2 - New Decisions

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

Is it a complaint or information?

Today, the Court of Appeals clarified the standard for determining whether a misdemeanor complaint has been converted into an information.  In People v. Kalin, the defendant pleaded guilty, at arraignment, to Criminal Possession of a Controlled Substance in the Seventh Degree.  The issue for the Court of Appeals was whether the criminal complaint was sufficiently detailed to constitute an "information."  This was important because the defendant, prior to pleading guilty, did not waive his right to be prosecuted by information.  CPL § 170.65(e) prohibits the entry of a guilty plea to a criminal complaint absent a waiver.  Thus, if the "complaint" was just a "complaint," his guilty plea was jurisdictionally defective, a claim that survives the guilty plea if the basis for the defect was that the accusatory instrument did not set forth a prima facie case.  Thus, the case boils down to the following: Was the accusatory instrument a "complaint" or "information"?

A review of the law in this area:

The usual instrument filed to obtain jurisdiction over an accused for a misdemeanor offense is a misdemeanor complaint (see CPL 100.05, 100.10 [4]). A complaint contains an accusatory portion that charges the designated offense (see CPL 100.15 [2]) and a factual section that alleges "facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15 [3]). The factual part of a complaint must establish "reasonable cause" to believe that the defendant committed the charged offense (see CPL 100.40 [4] [b]). ... In addition to the reasonable cause requirement, an information must also set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof" (People v Henderson, 92 NY2d 677, 679 [1999]; see CPL 100.40 [1] [c]). This is referred to as the "prima facie case requirement" (People v Jones, 9 NY3d 259, 262 [2007]).  ... Standing alone, a conclusory statement that a substance seized from a defendant was a particular type of controlled substance does not meet the reasonable cause requirement (see People v Dumas, 68 NY2d 729, 731 [1986]). Rather, the factual allegations must establish the basis of the arresting officer's belief that the substance seized was an illegal drug — for example, an officer may allege that the accused made a statement identifying the drug.

Here, the accusatory instrument stated that the officer's "experience as a police officer as well as [his] training in the identification and packaging of controlled substances and marijuana" provided the foundation for his identification of the items as heroin and marijuana.

In Jahron S., the Court of Appeals held, in the context of a juvenile delinquency prosecution, that a lab report is not necessary to convert a complaint to an information.  On the other hand, mere reliance on experience and training was considered insufficient.  It was on this latter point that the Court of Appeals "revisited" the issue in Kalin.  Relying on the "core concerns" of the rule (giving the accused notice to prepare a defense and sufficient details to prevent a violation of double jeopardy), the Court held that the complaint in this case satisfied the requirements of an "information":

Defendant was on notice that: (1) he was charged with possessing heroin and marijuana discovered in the car in which he was a back-seat passenger at approximately 10:50 P.M. on January 21, 2006 at the corner of Cypress and Myrtle Avenues in Queens; (2) the heroin was contained in nine separate plastic bags in the center console of the vehicle; and (3) the marijuana was found in a "plastic zip lock bag" inside the glove compartment along with a "marijuana pipe containing a quantity of marijuana." Based on these details, defendant could prepare a defense (e.g., he could attempt to demonstrate an actual lack of knowledge that the drugs were in the car to rebut the statutory presumption in Penal Law § 220.25 [1]). These facts were also specific enough to allow defendant to invoke the protection of double jeopardy in the event that he was acquitted of these charges but later subject to further prosecution. And, accepting the officer's statements as true, the assertions were enough to inform defendant that the substances seized were heroin and marijuana — the officer had been trained to identify those drugs and their packaging, he had experience with narcotics as a law enforcement officer and his observations of the substances, along with the presence of drug paraphernalia, supplied the basis upon which he drew the conclusion that he had discovered heroin and marijuana. ... And, accepting the officer's statements as true, the assertions were enough to inform defendant that the substances seized were heroin and marijuana — the officer had been trained to identify those drugs and their packaging, he had experience with narcotics as a law enforcement officer and his observations of the substances, along with the presence of drug paraphernalia, supplied the basis upon which he drew the conclusion that he had discovered heroin and marijuana. ... And, as detailed previously, the officer in this case presented more in the accusatory instrument than merely stating that he used his experience and training as the foundation in drawing the conclusion that he had discovered illegal drugs. He asserted that he also relied on the packaging of the substance that he determined to be heroin and that the recovery of a marijuana pipe further supported his belief that he had found marijuana.

The Court went on to hold that to the extent that Jahron S. requires more---such as a description of the item---"we are modifying that portion of the holding."  The majority opinion was written by Judge Graffeo.

In dissent, Judge Ciparick noted:

By holding that the charging instrument here is sufficient to allow a defendant to plead thereunder, and in effect overruling Jahron S., the majority brushes aside the protections that must be afforded to misdemeanor defendants to ensure that such prosecutions do not become routinized or treated as insignificant or unimportant. No undue burden will fall upon the People if they are required to expand the description of the drugs and packaging or provide specific information as to an officer's training and experience. Nor will the trial courts be unduly burdened by requiring that a defendant specifically waive prosecution by information, thus avoiding the stricter jurisdictional defect standard.

(LC)

COA & AD1 - New Decisions

The Court of Appeals announced a new decision today:

• People v. Kalin (Graffeo, J.; dissent by Ciparick, J.) - whether a CPCS 7˙ complaint had been converted to an information; Court revisits Jahron S.

In addition, there are new decisions today from the First Department.  (LC)

Acrimonious Attorney-Client Relationship Leads to Reversal

Courts are loathe to allow defendants to "fire" their court-appointed lawyers, particularly when it appears that a defendant is engaging in gamesmanship to delay a trial, for example.  Attempts to obtain a second, third, or fourth new attorney are viewed with even more suspicion.  Sometimes, however, an attorney-client relationship becomes so acrimonious that it is constitutional error to deny a defendant's request for a new lawyer even when doing so might inconvenience the People or the court.

In People v. McClam (2d Dept. 3/24/2009), the defendant and his court-appointed lawyer had disagreements that surfaced before a pretrial suppression hearing.  The court conducted a "limited inquiry," denied the defendant's request for a new attorney, but informed him that he could renew his request at the time of trial.  This ruling led to "several contentious exchanges" between the defendant and the judge.  Eventually, the defendant was removed from the courtroom.  Just prior to jury selection, the defendant again requested a new lawyer.  The court denied that request, citing the timing.

Things got worse during jury selection.  Defense counsel admitted that he had threatened to punch the defendant "and stated that the defendant was the absolute worst client he had ever represented."  Counsel pleaded with the court to allow him to withdraw, even threatening to take the matter to the administrative judge and to permit himself to be held in contempt.  The trial court denied the application.

The defendant pleaded guilty the next day.  Counsel stated that, since the previous contentious exchange, he and the defendant had reconciled.  The judge asked the defendant to confirm counsel's assertion, but the defendant remained mute.  When pressed, the defendant said, "I heard you.  What can I say?"  He then pleaded guilty, even entering a guilty plea to a count in the indictment that was not part of the plea bargain. 

The Second Department found that it was error to have denied the defendant's requests for a new attorney.

On this record, we conclude that defendant's right to counsel was not adequately protected. Rather, in response to the defendant's seemingly serious requests for a substitution of assigned counsel, the court failed to meets its ongoing duty to make inquiries sufficient to determine whether there was good cause for the requested substitution (see People v Brown, 305 AD2d 422). Thus, reversal is warranted. Further, on the record presented, the matter should be restored to pre-suppression hearing status.

Lessons learned?

• Requests for new counsel should be seriously entertained by the trial court.  Inquiry should be made of both the defendant and his attorney.  (Of course, the defendant should be counseled about: (1) avoiding statements about the underlying crime; and (2) the importance of attorney-client privilege and that he should not lightly divulge conversations between him and his counsel.)  The inquiry should be detailed.  A court's first effort should be to encourage the defendant to accept his attorney's assistance. 
• The Second Department's principal concern was the sufficiency of the lower court's inquiries.  A detailed record is a must.
• A courts should not postpone resolution of the request to withdraw.  In McClam, the trial court's invitation to hear the defendant anew if he "still [felt] that way at the time of trial" was problematic.  It suggested a non-final resolution to the dispute and put the trial court in a box when, in fact, the defendant renewed his request moments before jury selection.
• When I was a law clerk in federal court, I saw several cases where defendants wanted new lawyers.  Nearly always, the dispute centered around a plea offer.  Counsel thought it should be accepted; the defendant wanted to go to trial and felt that his attorney was trying to coerce him into pleading guilty.  Defense attorneys are in a real pickle in this type of situation.  On the one hand, they have the institutional experience to know what is and is not a fair plea offer.  They also know the severe sentencing consequences of taking a losing case to trial.  The defendant does not have any of this institutional or legal knowledge.  On the other hand, the defendant is the one who will "do the time."  The crushing caseloads faced by many legal aid and private defense attorneys only adds to the stress of this attorney-client relationship.  Sometimes I think that many of us on the outside of that dynamic (prosecutors, judges, academics) do not realize how tense and tenuous such relationships can be.
• Sometimes things get so bad that a motion to withdraw or for substitution simply must be granted, irrespective of the poor timing of the motion or the resulting inconvenience to the People or the court.  McClam is a prime example.

(LC)

AD2 & AD4 - New Decisions

There are new decisions from the Second and Fourth Departments.  (LC)

AD1 Upholds Hate Crime Conviction

The First Department upheld the conviction yesterday in People v. Assi (1st Dept. 3/26/2009).  The case presented a number of novel issues regarding the Hate Crimes Act of 2000. The defendant's conviction stemmed from his attempted firebombing of a synagogue in the Riverdale section of the Bronx.  He told the police that he wanted to "teach the Jews of Riverdale a lesson" by attempting to firebomb the synagogue with Molotov cocktails.

The first issue for the court concerned the effective date of the Hate Crimes Act.  The defendant's crime occurred on Sunday, October 8, 2000, coincidentally the same day that the law became effective.  The law took effect at 12:01 a.m.; the defendant's crime occurred after 3:00 a.m.  The court rejected the defendant's argument that the statute could not take effect on a Sunday. 

The court also held that the defendant was guilty of a hate crime even though his actions were directed at a building.  The statute extends to intentional acts motivated "by the religion or religious practice of a 'person,' which is defined as 'a human being, and where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality.'"  The synagogue in question was incorporated under the Religious Corporations Law and thus qualified as a "person."  The court further noted:

Defendant's argument that the People did not prove his acts were directed at a person because there was no showing that he knew the synagogue was occupied when he lit his Molotov cocktail is meritless. The People proved that defendant attempted to set fire to the synagogue in order to tell the "rich Jews in Riverdale" to stop sending money to the Israeli army. Regardless of whether defendant was aware that a person was in the synagogue at the time, the proof established that he chose as his victim this corporate "person" because of his belief regarding its congregants' race, national origin, ancestry, religion and religious practice. Indeed, defendant is correct in arguing that he did not perpetrate the crime against a specific individual. His targeting of the synagogue was directed toward an entire community.

The First Department also rejected an assortment of alleged trial errors.  (LC)

AD1 & AD3 - New Decisions

There are new decisions today from the First and Third Departments.  (LC)

Pleading Depraved Indifference Assault in the Accusatory Instrument

In People v. Bauman (Ct. App. 3/26/2009), a pair of defendants was accused of acting-in-concert to commit Depraved Indifference Assault.  The indictment alleged that the defendants committed this crime by

"striking [victim] about the head and body with fists and/or a baseball bat and/or a hammer; and/or burning said person with a frying pan; and/or scalding said person with hot water; and/or placing a vacuum cleaner hose on said person's genital area; and/or providing inappropriate and/or inadequate nutrition; and/or subjecting said person to inadequate and/or inappropriate living conditions; and/or failing to seek medical attention" during a period from August 1, 2004 to April 7, 2005.

The defense argued that the indictment violated CPL § 200.30(1), which provides that a count of an indictment may charge only one offense.  The majority of the court, in an opinion by Judge Jones, agreed.  Citing People v. Keindl, 68 N.Y.2d 410 (1986), the court held:

Here, the second count of the indictment was pleaded in a manner which made it duplicitous. This count, alleging eleven incidents over an eight month period, encompassed "such a multiplicity of acts ... as to make it virtually impossible to determine the particular act of [assault] ... as to which [a] jury [could] reach a unanimous verdict" (id. at 421). ... Were [it] to stand as pleaded, "individual jurors might vote to convict ... defendant[s] of [each] count on the basis of different offenses" and "defendant[s] would thus stand convicted under [each] count even though the jury may never have reached a unanimous verdict as to any of the offenses" (id. at 418).

Dissenting in part, Judge Pigott, writing for himself and Judge Smith, noted that the depraved indifference mens rea can be established by a course of conduct:

[T]he pleading of multiple acts under this one count does not threaten the reliability of a unanimous verdict, because it is defendants' course of conduct, and whether that conduct is deemed to be reckless and to have created a grave risk of death—and not any singular act—upon which the jury must unanimously agree before defendants may be convicted of depraved indifference assault.

The dissent went on to analogize the case to Depraved Indifference Murder, where multiple acts, committed over the course of a lengthy time period, can constitute a course of conduct that is sufficient to convict the defendant.

The majority countered that a course of conduct of Depraved Indifference Assault can result in multiple crimes.  In contrast, there can be only one completed offense of Depraved Indifference Murder since a person can only die once.  Multiple acts may have led to the death, but there could only be one crime.  Hence, there are not the same duplicity concerns in a murder case.  (LC)

COA - New Decisions

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

• People v. Lowe (mem.) - suppression
• People v. Bauman (Jones, J.; dissent by Pigott, J.) - whether the allegation of multiple acts of depraved indifference assault in one count violates CPL § 200.30(1)

Another Perspective on CPL § 30.30: Part One

In New York, we are accustomed to operating under two "speedy trial" rules: the "fuzzy" constitutional test under People v. Taranovich and the rigid rule under CPL § 30.30.  True, CPL § 30.30 is not really about  guaranteeing a defendant a speedy trial.  Instead, it requires the People to be ready for trial within a certain period of time.  It does not require a trial to actually occur by a certain date.  CPL § 30.30's benefit is that it provides a bright-line rule for prosecutors, defense attorneys, and judges to apply.  Like all bright-line rules, however, it can be perceived as having harsh consequences.  If the People have 184 days to be ready for trial, and there are 185 days chargeable, the case must be dismissed.  The de minimis nature of the "delay" (one day) and the lack of prejudice are both immaterial. 

New York attorneys may be surprised to learn that most states do not have statutes like CPL § 30.30.  So what protects defendants from unjust delays in those jurisdictions?  Federal and state constitutions, of course, require speedy trials.  However, a defendant faces an uphill battle to establish a constitutional speedy trial violation.  He must establish not only an undue delay but also that he was specifically prejudiced by the delay, a very difficult standard to meet. 

In some jurisdictions, defendants are protected from delays by judges' tough control over their calendars.  When I practiced in Alexandria, Virginia, the usual practice was to set a trial date --- on a date agreeable to both sides --- immediately after indictment.  Trials typically took place within 60-90 dates of indictment.  Adjournments were rarely granted and required a showing of good cause, such as the sudden illness of a critical witness.  "The People can't find the file," "the officer is RDO," or "we need more time to prepare" --- common reasons for lack of readiness that can be heard in calendar parts throughout New York on a given day --- are not grounds for an adjournment in other states.  Why?  The prosecution and defense picked the trial date and should have known where their files were, known whether their witnesses were available on that date, and been prepared for trial.  (As a practical matter, several trials were scheduled for the same judge on the same day because everyone knew that many cases would plead out.  In the rare event that four cases went to trial on the same day, but we only had three judges, a visiting judge could usually be brought in to hear the fourth case.) 

Even if we were writing on a clean slate --- no CPL § 30.30 --- I'm not sure a procedure like Virginia's would be practical in New York.  First, the Criminal Procedure Law contemplates a significant amount of motion practice, more so than in other parts of the country.  This makes it difficult to accurately predict when both sides will actually be ready for trial.  Second, it has been my experience that trials in New York tend to be spread out over more calendar days than in other states.  In addition, the length of trials can be tough to predict in New York because of procedural devices that can take time away from testimony.  For example, a case could be unexpectedly delayed for a day or more while the People and Defendant sort out a mid-trial Rosario violation.  If the parties inaccurately predict the length of a trial, it could either backup other cases (if the case went on longer than expected) or cause a court part to be empty (if the case resolved itself earlier than predicted).  These problems are only exacerbated in larger counties where there are so many cases, attorneys, and available parts to juggle.

In the next installment, I will talk about Texas' prosecutorial readiness rule, which is remarkably similar to CPL § 30.30, and why, despite being on the books, it is not followed.  (LC)

Justice Luis Gonzalez Appointed Presiding Justice of AD1

Yesterday, Governor Paterson appointed Justice Luis Gonzalez as Presiding Justice of the Appellate Division, First Department.  The New York Law Journal has a free (with registration) article about the appointment.  (LC)

AT2 - New Decisions

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

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

AD4 - New Decisions

The Fourth Department has posted new decisions.  (LC)

Notice of Intent in Extreme Emotional Disturbance Case

If a defendant is raising the defense of Extreme Emotional Disturbance, is he required to serve the requisite notice and submit to an examination by the People's expert when he only intends to present lay testimony in support of his defense?  This was the issue in People v. Diaz (2d Dept. 3/17/2009).  In a unanimous opinion written by Justice Skelos, the court affirmed the defendant's conviction.

Relying upon the text of CPL § 250.10, its legislative history, and the purpose behind the notice requirement, the court held:

If the People are not provided notice of a defendant's intention to assert the EED defense, such "unfair disadvantage'" (id.) may occur whether the defendant intends to proffer lay testimony or expert testimony in support of the defense. While the Court of Appeals has not yet had occasion to address this precise issue (see People v Smith, 1 NY3d at 612), as the Court opined in Berk, the foregoing "statement of legislative intent manifestly establishe[d] that the primary aim of the pretrial notice requirement was to ensure the prosecution sufficient opportunity to obtain the psychiatric and other evidence necessary to refute the proffered defense of mental infirmity [so as] to allow the prosecution an opportunity to acquire relevant information from any source—not merely from an independent examination of the defendant—to counter the defense" (People v Berk, 88 NY2d at 264 [internal quotation marks and citations omitted]). In other words, as the Court of Appeals concluded in Berk, "inasmuch as the notice requirement was designed to allow the People an opportunity to obtain any mental health evidence necessary to refute a defense of mental infirmity, it follows that it applies to any mental health evidence to be offered by the defendant in connection with such a defense" (id. at 265).

What Smith and other earlier decisions of the Court of Appeals make clear is that lay testimony alone can be sufficient to establish the EED defense (see People v Smith, 1 NY3d at 612; see e.g. People v Moye, 66 NY2d at 890; see also Matter of Lee v County Ct. of Erie County, 27 NY2d 432, 442, cert denied 404 US 823), provided that the defendant shows that "he or she suffered from a mental infirmity not rising to the level of insanity at the time of the homicide, typically manifested by a loss of self-control" (People v Roche, 98 NY3d at 75). Thus, it follows that if the defendant can raise the defense of EED through the submission of lay testimony, the People must be given an opportunity to counter that defense with relevant information from any source. To hold otherwise would allow a defendant to interpose the defense of EED on the eve of trial, as did the defendant here, without affording the People the opportunity to obtain evidence to counter the defense, thereby placing them at an unfair disadvantage (see People v Berk, 88 NY2d at 263; People v Felix, 232 AD2d 228).

(LC)

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)

PRS Civil Suits

I rarely report on civil cases, but I came across one today that I thought would be of interest.  As you know, postrelease supervision (PRS) is mandated by statute for determinate sentences.  A few years ago, the Department of Correctional Services (DOCS) recognized that some judges were not including PRS when they orally pronounced sentences.  DOCS, therefore, administratively imposed a term of PRS to sentences that did not include the mandatory supervision period.  Some of these defendants violated the conditions of their supervision and were sent back to prison.  The Court of Appeals, in a number of rulings, held that a defendant who pleads guilty must be advised if PRS will be added to his sentence, that DOCS cannot administratively add PRS, but that a sentencing court has inherent authority to re-sentence an offender so that the mandated period of PRS is judicially-imposed.

In Donald v. State (Ct. Cl. 2/5/2009), the claimant served time in prison based on a violation of PRS that had been imposed by DOCS.  He has now brought a lawsuit against the State, alleging that he was improperly confined and that he should be compensated.  The court granted partial summary judgment in favor of the claimant on the question of liability.  There will now be a trial on the question of damages.

The court rejected the State's argument that DOCS' administrative imposition of PRS was "privileged:"

DOCS imposition of post-release supervision on claimant was done not "under color of law or regulation, specifically in accordance with regulations," but rather was unlawful, beyond its jurisdiction and a legal nullity. Such conduct cannot be said to be privileged.

...

Because the imposition of post-release supervision on claimant by DOCS was a legal nullity, claimant could not be lawfully confined for violating its terms. Any period of claimant's confinement caused by DOCS' unlawful and extra-jurisdictional imposition of the post-release supervision is not privileged and is actionable by claimant.

(LC)

AD1 & AD3 - New Decisions

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

Brooklyn House of Detention to Reopen

A Brooklyn Supreme Court Justice has cleared the way for the reopening of the Brooklyn House of Detention.  However, in a partial victory for some members of the community, the City cannot proceed with its plans to expand the jail from 815 beds to 1719 without first going through an environmental and land use review process.  The court's decision will be published in Tuesday's Law Journal but is also available online. (LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

AD1 & AD2 - New Decisions

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

Unorthodox Jury Selection Procedure; AD1 Punts on Preservation Grounds

In People v. Casanova (1st Dept. 3/12/2009), the defendant's attempted murder trial, which was to take place in late August, was expected to last two weeks.  Due to the timing and length of the trial, the trial judge believed that a large number of potential jurors would be unable to serve due to school or work conflicts.  Rather than ask each juror about his or her individual scheduling problems, the court asked which potential jurors had conflicts and then simply excused them from service in this case.  The excused veniremen were ordered to report to the Central Jury Room.  On appeal, the defendant claimed that this unorthodox procedure was an abdication of the judicial function and warranted reversal.

The First Department, in a unanimous opinion written by Justice Saxe, affirmed.  By failing to object to this procedure, the defendant had failed to preserve his claim.  The court declined to exercise its interest-of-justice jurisdiction.  It also found that this type of error did not fall under the "mode-of-proceedings" exception to preservation.

In so holding, the court stressed the importance of preservation and that a simple objection by the defendant may well have avoided the whole issue because Supreme Court might have been convinced to conduct individual inquiries of the potential jurors, despite the torturous nature inherent to such a process:

The rule of preservation is not a mere formality; the requirement of a timely objection to a procedure at the trial level ensures that "errors of law which might otherwise necessitate retrial can be avoided or promptly cured" (see People v Martin, 50 NY2d 1029, 1031 [1980]). By failing to object to the pre-screening selection procedure, defendant left the trial court without the opportunity to consider the arguments raised here. The argument must therefore be precluded as unpreserved; moreover, exercise of our interest of justice jurisdiction is not warranted (see People v Solares, 309 AD2d 502 [2003], lv denied 1 NY3d 581 [2003]; People v Boozer, 298 AD2d 261 [2002], lv denied 99 NY2d 555 [2002]; People v Coleman, 262 AD2d 219 [1999], lv denied 94 NY2d 798 [1994]).

...

We conclude that the procedure at issue in the present case does not fit within the "mode of proceedings" exception to the preservation requirement. Defendant's constitutional right to a jury trial was not impaired; at most, what was violated here was a statutorily prescribed jury selection procedure. Moreover, the applicable statutes, rules and case law give the trial court discretion on the matter of excusing jurors (see Judiciary Law § 517[b]; 22 NYCRR 128.6-a; People v Boozer, 298 AD2d at 261; People v Coleman, 262 AD2d at 220; People v Olmo, 260 AD2d 410 [1999], lv denied 93 NY2d 975 [1999]). While the foregoing cases considered circumstances in which some degree of individual inquiry was made of jurors, they reflect that the preliminary excusing of potential jurors, even without the consent or input of counsel, need not be viewed as impairing a defendant's constitutional right to trial by jury.

This strikes me as the right result, although I would not be surprised if the Court of Appeals takes up this case in order to further clarify the "mode-of-proceedings" exception to preservation.  The court has shown a recent interest in preservation.  See, e.g., People v. Hawkins (Ct. App. 11/25/2008) (blog post) (LC)

Roundup of Appellate Division Cases

The New York Law Journal has a nice roundup of recent Appellate Division cases, courtesy of former Judge E. Leo Milonas.  Several of the  cases involve the criminal justice system and have also been discussed on this blog.  (Subscription required for online access.  Article will appear in 3/13/2009 issue of the NYLJ.)  (LC)

AD3 - New Decisions

The Third Department has posted new decisions.  (LC)

AT2 - New Decisions

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