New York Criminal Law and Procedure

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

COA & AD3 - New Decisions

The Court of Appeals announced new decisions today:

• People v. Mattocks (Ct. App. 4/30/2009) (Graffeo, J.) - purposefully bending an MTA MetroCard in order to obtain a free fare constitutes a forgery.
• People v. Goldstein (Ct. App. 4/30/2009) (Lippman, C.J.) - the defendant was not misinformed about the only real benefit of his guilty plea (concurrent vs. consecutive sentences) and  his allocution was not defective with respect to certain counts.
• People v. Aleman (Ct. App. 4/30/2009) - new trial ordered because of coercive deadlock charge given

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

AT2 Faults Justice Court for Sua Sponte Declaring Statute Unconstitutional

The Appellate Term, Second Department, 9th & 10th Judicial Districts, recently reversed a Justice Court's dismissal of an unlicensed operation of a vehicle charge on constitutional grounds.  In People v. Quiroga-Puma, the Justice Court had held that Vehicle and Traffic Law §§ 502(1) and 509(1) were unconstitutional, as applied to the defendant, because they require documentation as a condition for the issuance of a driver's license.  "The court reasoned that because defendant, a non-citizen and 'presumably here illegally,' cannot satisfy the identification requirements promulgated by the Commissioner of Motor Vehicles, the requirements deny defendant a property right necessary to his economic well-being and violate defendant's rights under the Due Process, Equal Protection, and Privileges and Immunities Clauses, as well as the Tenth Amendment."

The Appellate Term noted several problems with the lower court's analysis and holding.  As an initial matter, the Justice Court failed to notify the Attorney General that the constitutionality of these statutes were in question and did not afford the Attorney General an opportunity to intervene, as required by Executive Law § 71 and CPLR 1012.  Moreover, the court held that there was no evidence that the defendant had standing to assert the constitutional claims that were sua sponte raised by the court on his behalf:

The record does not contain any indication that defendant is an undocumented alien. Further, the record does not indicate that defendant ever applied for a driver's license and, even assuming that he did apply and was denied a license, that the grounds for the denial were unrelated to age, the ability to pass the visual, written and performance test requirements (see generally Vehicle and Traffic Law § 502 [1] - [4]; Regulations of the Commissioner of Motor Vehicles [15 NYCRR] §§ 3.3 - 5.10), or some other civil or physical impediment to obtaining a license that is unrelated to the constitutional issues herein raised, much less that the denial was, in fact, based on his failure to produce the required documentation.

(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)

Interesting New Decisions from AD4

Last week, the Fourth Department released a number of decisions that are of interest:

• People v. Brown (4th Dept. 4/24/2009) - single error by defense counsel constituted ineffective assistance of counsel.  In the defendant's sexual abuse trial, his attorney failed to object to the admission of the victim's medical record, which contained information about prior allegations of abuse.  The court found that this single error was "so egregious and prejudicial" as to constitute ineffective assistance.
• People v. Hankerson (4th Dept. 4/24/2009) - purported appeal waiver was invalid.  Prosecutor merely mentioned that the defendant had agreed to waive the right to appeal.  There was no further discussion or colloquy.  
• People v. Ziegler (4th Dept. 4/24/2009) - police had reasonable suspicion to pursue and search defendant and his companions since one of them reached towards his waistband.  The suspects matched the description by an anonymous 911 caller of three individuals carrying guns.  In addition, the court noted that it is common knowledge that a gun is routinely carried in one's waistband.
• People v. Morrice (4th Dept. 4/24/2009) - reversal for prosecutorial misconduct.  The trial prosecutor, among other things, failed to correct a witness' statement that she was not getting anything for her testimony (in fact, she had received transactional immunity); elicited from a police officer the defendant's invocation of his right to counsel; questioned the defendant about his conversation with his attorney during a recess; questioned a defense witness about her arrest record; asked her about whether her boyfriend was incarcerated; and characterized the defendant as a liar.
• People v. Stein (4th Dept. 4/24/2009) (Stein, J.) - foster parent-child relationship is not a "professional relationship" for purposes of SORA risk level assessment.
• People v. Scott (4th Dept. 4/24/2009) - Rape in the First Degree is an inclusory, concurrent count of Predatory Sexual Assault Against a Child.
• People v. Ballman (4th Dept. 4/24/2009) (Pine, J.) - out-of-state convictions prior to 2006 cannot be used to elevate misdemeanor DWI to a felony.

(LC)

AD4 to hear reargument in court attorney restitution case

In February, I blogged about a curious case from the Fourth Department, People v. Bunnell.  In that case, the Fourth Department held that the sentencing court committed reversible error by having its court attorney hold a restitution hearing, even though the court later "affirmed" the law secretary's "ruling." 

Last week, the Fourth Department issued the following order:

Motion for reargument granted to the extent that the appeal should be added to the calendar for the May 2009 Term of Court for counsel to address the question whether County Court erred in delegating its responsibility to conduct the restitution hearing to its court attorney.

(LC). 

AD4 - New Decisions

The Fourth Department has posted new decisions.  (LC)

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)

AD1 & AD3 - New Decisions

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

Lippman to Review Percentage of Criminal Leave Applications Granted

The New York Law Journal is reporting that Chief Judge Lippman will review why so few criminal leave applications are granted by the judges of the Court of Appeals.  The percentage of leave grants has hovered around 2% in the last few years.  In contrast, around 3% of leave applications were granted in the 1980s and 1990s.  The article notes that some judges are more prone to grant applications (Judges Smith and Pigott) while others only rarely grant them (Judge Read grants leave in only 0.08% of criminal cases).

If I were writing on a clean slate, I would substantially reform the criminal leave process.  The existing procedure leaves too much room for litigants to be subjected to the whims of individual judges.  I would create a true certiorari process in which every judge reviews every leave application, much like the U.S. Supreme Court's "cert. pool."  A four judge majority would be necessary for the full court to hear a case.  I would also eliminate the Appellate Division's power to grant leave.  These changes would bring about some much needed uniformity to the process.  (LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

AD2 - New Decisions

The Second Department has posted new decisions. (LC)

Another Perspective on CPL § 30.30: Part Two

In a recent blog post, I noted that few states have a "prosecutorial readiness rule" like our CPL § 30.30.  In many jurisdictions, trial dates are set by the court and are firm.  Continuances require good cause.  The court -- not the prosecutor or defense attorney -- controls the speedy with which cases go to trial.

Texas, until recently, had a statute similar to CPL § 30.30.  See Tex. Code of Criminal Procedure § 32A.02(1) (repealed 2005).  It provided:

A court shall grant a motion to set aside an indictment, information, or complaint if the state is not ready for trial within:

(1) 180 days of the commencement of a criminal action if the defendant is accused of a felony;

(2) 90 days of the commencement of a criminal action if the defendant is accused of a misdemeanor punishable by a sentence of imprisonment for more than 180 days; or

(3) 60 days of the commencement of a criminal action if the defendant is accused of a misdemeanor punishable by a sentence of imprisonment for 180 days or less or punishable by a fine only.

Like CPL § 30.30, it excluded delays resulting from other proceedings concerning the defendant, periods during which the defendant was at-large, and continuances that were requested by the defense.  Interestingly, the Texas' statute is nearly identical -- word-for-word in many spots -- with New York's CPL § 30.30.  I wonder whether Texas borrowed generously from New York law or if the two codes have a common ancestor. 

In any event, Texas' prosecutorial readiness rule was declared unconstitutional by the state's Court of Criminal Appeals, its highest court for criminal cases, in Meshell v. State, 739 S.W.2d 246 (Tex. Ct. Crim. App. 1987).  The State argued -- and the court agreed -- that the statute violated the doctrine of separation-of-powers.  Since, under Texas law, a prosecuting attorney is considered part of the Judicial Branch, the argument was that the statute was an intrusion, by the Legislature, into the Judiciary's power to control when it brought prosecutions.  The court held:

An obvious corollary to a district or county attorney's duty to prosecute criminal cases is the utilization of his own discretion in the preparation of those cases for trial. Therefore, under the separation of powers doctrine, the Legislature may not remove or abridge a district or county attorney's exclusive prosecutorial function, unless authorized by an express constitutional provision.

The court distinguished the statute from the Speedy Trial Clauses of the Federal and Texas Constitutions:

We acknowledge that enforcing a defendant's constitutional right to a speedy trial under federal and state constitutions in some instances may require some intrusion into the prosecutor's discretion to prepare for trial. For example, under both federal and state speedy trial clauses, the delay by a government official in obtaining a defendant's presence following his indictment could cause a delay in the commencement of the trial. That delay, even if the result of negligence or staff shortage, may ultimately be attributed to the prosecutor. ... However, the Speedy Trial Clauses, unlike the Speedy Trial Act, even when effecting a prosecutor's discretion in preparing for trial, are directed at assuring speedy commencement of trial. The Speedy Trial Clauses assure speedy commencement of trial by focusing on at least four factors directly related to commencement of trial: 1) the length of the delay before trial, 2) the reason for the delay, 3) the defendant's assertion of his right to a speedy trial and 4) any prejudice to a defendant resulting from that delay in trial. ...

Beyond any scenario contemplated by the Legislature, the Act fails to incorporate these factors and thereby seriously encroaches upon a prosecutor's exclusive function without the authority of an express constitutional provision.  First, under the Act, few distinctions are drawn based upon the reason for delay. A prosecutor's failure to obtain appellant's presence weights equally as heavy upon him when the delay is attributed to negligence or staff shortage as when attributed to deliberate behavior. ...

Second, under the Act, no consideration is given to a defendant's failure to request a speedy trial. In fact, a defendant need not request a speedy trial before seeking relief. ...

Third, and probably most critically, the Act does not require a defendant to show any prejudice. ... Under the Speedy Trial Clauses, a defendant must show that he was prejudiced by the delay in his trial, with particular importance attached to any impairment of his defense. ...

If the Act were enforced against the Freestone County Attorney in the instant case, he would be deprived of his exclusive prosecutorial discretion in preparing for trial without any consideration for the factors used in determining whether appellant has been deprived of his constitutional right to a speedy trial. ...

Food for thought.  (LC)

AD1 & AD3 - New Decisions

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

AT1 & AT2 - New Decisions

The Appellate Terms for the First and Second Departments have posted new decisions.  (LC)

AD1 - New Decisions

The First Department posted new decisions today.  (LC)

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)

COA Approves Ex Parte Procedure for Evaluating Whether Material is Rosario or Brady Material

People v. Contreras (Ct. App. 4/7/2009) is an important decision on the procedure that should be followed when the People are unsure whether or not material is discoverable under Rosario or Brady.

In Contreras, the documents in question were notes written by the complainant, defendant's wife.  There was no question that the notes had "nothing to do with the case."  Rather, the defendant contended that his rights were violated by the procedure followed by the trial court in reaching that conclusion.  The trial court had conducted an ex parte hearing, eliciting testimony from the complainant about the notes and entertaining arguments by the prosecutor.  A subsequent hearing was held where defense counsel learned of the contents of the notes and was given an opportunity to argue for full disclosure.  However, the defendant himself was not present.  Defense counsel was ordered not to disclose the contents of the notes to his client. The Court of Appeals, in an opinion by Judge Smith, unanimously held that this procedure was proper:

There would, quite likely, have been no error if the prosecution had decided on its own to withhold the document, and there would surely have been no error if the court, having reviewed the document in camera and heard the prosecutor's representations about it, had decided without further proceedings that the notes were not subject to either Rosario or Brady. The prosecutor, in submitting the document to the court, and the court, in deciding to hold a hearing on the issue, were erring on the side of caution.

We heartily approve their decisions to do so. Prosecutors and trial judges invite trouble when they push the rules of disclosure to their limit (see e.g., People v Fuentes, ___ NY3d ___, [decided today]). But where, as here, the prosecutor and the court have wisely chosen to give defendant a procedural opportunity he is not strictly entitled to, they should not be penalized for not being still more generous. Where a court, although not required to do so, chooses to grant a hearing on the issue of whether a particular piece of evidence constitutes Rosario or Brady material, it has broad discretion as to how the hearing should be conducted. This does not mean that the court's discretion is unlimited, but it does mean that where the trial court has made a reasonable choice among available procedures, that choice will not be second-guessed on appeal.

The trial court's choice of procedures here was reasonable. The document in question, though irrelevant to the case, had a significant tendency to embarrass the complainant, and she might have been warranted in fearing worse than embarrassment if the contents of the document had been communicated to defendant. Defendant was incarcerated at the time of trial, but no one could guarantee that he would long remain so, and there was ample reason to think he would not react well to a document expressing the complainant's romantic interest in another man. Because the document was both irrelevant and potentially inflammatory, the trial court was justified in preventing it from coming to defendant's knowledge.

Contreras should be read in conjunction with Fuentes, a case which I blogged about earlier in the week. In Fuentes, the People unilaterally withheld a document that it erroneously thought was not discoverable. Although the court found that the non-disclosure did not warrant a new trial, it was clearly perturbed by the People's unilateral decision to withhold the document.  By these pair of decisions, the Court of Appeals has expressed a strong preference for ex parte, judicial review of close discoverability questions.  (LC)

AD1 & AD3 - New Decisions

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

Ripped Out Page in Medical Record Does Not Result in Brady Reversal

In People v. Fuentes (Ct. App. 4/7/2009), the defendant was accused of rape.  The People, in accordance with their open-file discovery policy, provided the defense with, among other things, the complainant's medical record.  Unknown to the defense, however, the prosecutor had ripped out a single page from the medical record: a psychiatric assessment form.  The document described that the complainant was upset because she had placed herself in danger by walking home alone, she had experienced suicidal thoughts (although it is unclear as to the timeframe and cause), the complainant had used marijuana in the past, but that she had no prior psychiatric history.  The prosecutor removed this page because he or she thought it was privileged.  In any event, the page was included with the medical record that was admitted into evidence.  Defense counsel, while leafing through the admitted record during summations, found the undisclosed document.  The document was removed from the admitted record and not mentioned by either side during summations.  The trial court denied defendant's CPL § 330.30 motion and the Appellate Division affirmed.

While describing the non-disclosure as "ill-advised," the Court of Appeals, in an opinion by Judge Ciparick, affirmed the conviction.  The court found that the evidence was not "material."  First, some portions would have helped the People because they corroborated that she had walked home alone, as she testified, and not with the defendant, as he claimed.  Unlike previous cases, here the document contained no indication that the complainant suffered from a mental illness.  Notations about suicidal thoughts and marijuana use would have had "at best" a "minimal" value.  The Court of Appeals also noted that the defendant's version of events was contradicted.

The Court of Appeals chastised the People for unilaterally removing the page from the discovery materials, noting the particular problem in this regard when dealing with an open-file discovery process:

In reaching our conclusion that the undisclosed consultation note was immaterial and would not have changed the outcome of the trial, we do not condone the People's decision to withhold the document from defendant or their failure to, at a minimum, inform the trial judge about it and request an in camera inspection to determine its admissibility. Indeed, defense counsel should be able to assume that a medical record is complete in a case, such as this, of open file discovery.

In dissent, Judge Jones stated that the psychiatric record was material; he would have reversed and ordered a new trial.  He noted that there was "sharply divergent evidence on the question of consent."  He continued:

In light of the contradictory evidence in this case, it cannot be said that the removal of the record of psychiatric consultation from the hospital records, which were turned over to defendant pursuant to open file discovery, did not affect the outcome of the trial. Indeed, the fact that the jury deliberated for almost two full days before returning a verdict suggests that serious consideration may have been given to both versions of events. Credibility was clearly at issue.

The majority determines that the impeachment value of this evidence would be limited, but this analysis fails to account for the probability that disclosure of the record of consultation would have likely resulted in a more intense investigation of the victim's psychological background and history. Such investigation was foreclosed when defendant was mislead into thinking that he had a complete record pursuant to the open file discovery process. It is an unfortunate fact that the removal of this document by the People was done without notice to the court or defense counsel.

Judge Jones also commented on the fact that this issue arose through open-file discovery:

Open file discovery, admirably adopted by the District Attorney, is intended to streamline the discovery process and ensure a fair trial by eliminating the inappropriate exclusion of evidence to which the defendant is entitled. At the heart of this procedure is a good faith reliance on the fact that nothing has been removed, altered or redacted without court approval and notice to the defendant. The deliberate and unilateral removal of this document undermines the letter and spirit of open file discovery and must not be condoned.

COA & AD1 - New Decisions

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

• People v. Fuentes (Ciparick, J., for the majority; Jones, J., dissenting) - Brady
• People v. Contreras (Smith, J.) - procedure for determining whether certain notes are Brady/Rosario material

In addition, the First Department announced new decisions.  (LC)

Appeal Held in Abeyance Pending Report from Trial Court on Defendant's Competency

In an interesting case, People v. Jefferson (2d Dept. 3/31/2009), the Second Department held an appeal in abeyance so that the trial court to hold a hearing and file a report ("with all convenient speed") on whether the defendant was competent before she entered her guilty plea to Assault in the Second Degree.

The Second Department was troubled by an exchange during the lower court's colloquy with the defendant:

Supreme Court inquired of the defendant as to whether she was at that time under the influence of drugs, she responded, "Yeah, I just came from the psychiatric ward." The court failed to follow up on this, but rather immediately asked her whether she fully understood all the questions it had asked, to which she responded, "Yeah." Thereafter, when the court asked the defendant if it was clear to her what was going on, she responded, "I'm confused." When the court further asked her what she was confused about, and she responded, "I don't know. I'm depressed." The court then simply asked the defendant if her depression stopped her from understanding the proceedings, to which she responded, "No." At that point, and without further inquiry of defense counsel as to the defendant's mental state, the court proceeded to accept the defendant's plea of guilty.

Lesson learned?  When a defendant raises a red flag about his or her competency --- by mentioning things like "psychiatric ward," "I'm depressed," or "I'm confused" --- a detailed inquiry must be made.  Here, merely asking the defendant if her depression impeded her understanding was insufficient.  Her one word answer was not adequate to gauge whether, in fact, she understood the nature of the proceedings and was able to assist in her own defense.  At a minimum, the plea court should have inquired about the length of the defendant's stay in the psychiatric facility, what was the diagnosis, what medications she was on, and whether defense counsel thought she was competent to proceed.  (LC)

Rare Reversal for Lack of Identification Evidence

This week, the Second Department reversed a conviction for Robbery in the Second Degree and Assault in the Third Degree, using its weight-of-the-evidence review power to conclude that there was a lack of evidence to identify the defendant as the perpetrator of the crime.  The court held:

Only one of the six eyewitnesses proffered by the People affirmatively made an in-court identification of the defendant as the assailant, and that witness qualified his identification by stating: "I am not 100% positive . . . but I am pretty sure." Moreover, the out-of-court photographic identifications did not prove the defendant's identity as the assailant beyond a reasonable doubt. Two witnesses were asked by the police to make an identification using a photographic array containing six photos: one witness did not recognize the assailant in any of the photos and the other witness selected two photos of people who "kind of" looked like the assailant. Although one of the two photos was an image of the defendant, the witness told the police that the assailant "might be" the person in the other photo that was not the defendant. Two other witnesses were asked by the police to identify the assailant using a Middletown High School yearbook: one witness identified the defendant as the assailant and the other witness (who was the only witness to later identify the defendant in court) did not recognize anyone. Detective Thomas Miller testified that the investigation focused on the defendant because the vehicle from which the assailant exited was traced to the defendant's address. The defendant admitted at trial that he was present in the vehicle while the crimes took place, but contended that his cousin, who is similar in appearance, was the assailant. A photograph of the defendant's cousin was introduced into evidence. A second defense witness, whose physical description matched witness descriptions of a person at the scene of the crime, corroborated the defendant's testimony. Under these circumstances, we conclude that the verdict of guilt was against the weight of the credible evidence.

(LC)

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)