New York Criminal Law and Procedure

AT1 - New Decisions

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

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

COA - Summaries of New Decisions

The Court of Appeals announced new decisions today:

• People v. Buchanan (Ct. App. 6/30/2009) (per curiam; Read, J., dissenting) - the state constitution prohibits a court from ordering a defendant to wear a stun belt during his trial, even if he is charged with murder and the belt is not visible to the jury, "without a finding of specific facts justifying the use of such a restraint."  What is interesting about this case is that the court ducked the question of prejudice (which was the subject of Judge Read's dissent) and never articulated why state law should go above and beyond the federal constitution.  The court did not employ the analysis required by People v. P.J. Video, 68 N.Y.2d 296 (1986).  On the merits, I agree that some particularized showing of need is required by due process.  There must be intangible prejudices that are inherent with the wearing of a stun belt.  Even an innocent person would worry and preoccupy about it going off accidentally, even though I am not aware of a single instance of this happening.  This worry and preoccupation must be visible to the jury or impede the attorney-client relationship.  I am also surprised that the court's opinion was so short and bereft of analysis, given the magnitude of the issue and the fact that the holding drew a dissent. 
• People v. Gomez (Ct. App. 6/30/2009) (Jones, J.) - evidence not admissible under the inventory search exception.  Although the officer prepared a "voucher" of the evidence seized, he did not prepare an inventory form or explain what other items were in the vehicle.  Moreover, there was no evidence that the officer acted in accordance with the protocol, particularly when it came to the opening of the car's trunk.  The court emphasized that the People need not introduce the Patrol Guide in every case; however, I have repeatedly emphasized---and continue to emphasize---that doing so is good practice.  Moreover, an inventory form---labelled as such---is not always required.  "[T]he failure to use an inventory search form, while a technical defect, is not fatal to the establishment of a valid inventory search as long as (1) the search, in accordance with the "standardized procedure," is designed to produce an inventory and (2) the search results are fully recorded in a usable format."  

(LC)

Inventory Search Upheld

One of my pet peeves is when prosecutors fail to lay the proper foundation for an inventory search exception of vehicles.  Contrary to popular belief, the exception is not sui generis.  A police department must have a specific, non-discretionary policy that defines the circumstances and scope of inventory searches.  In addition, the police must generate an actual inventory of the vehicle and its contents.  Contrary to what some police and prosecutors believe, the police do not have an automatic right to search every car that comes into their custody.  They may only do so according to an official policy that satisfies the requirements of People v. Johnson, 1 N.Y.3d 252 (2003), and its progeny.

Recently the First Department upheld an inventory search, finding that the proper foundation had been met:

The court properly denied defendant's suppression motion. The officers' detailed testimony, taken together with the particular Patrol Guide section received in evidence, was sufficient to satisfy the People's initial burden of establishing that there was a standard policy regarding inventory searches, that the standard procedure was designed to meet the objectives justifying such searches, and that the search of defendant's bag was in compliance with the established procedure (see People v Johnson, 1 NY3d 252, 256 [2003]). In particular, the hearing evidence made it clear that the relevant aspects of the procedure at issue were standardized rather than discretionary. The People also established that the police made a proper inventory search and not a search for incriminating evidence; we note that an officer continued and completed the search after another officer discovered a pistol. Furthermore, the officers compiled a proper inventory list of the full contents of defendant's bag, notwithstanding that they listed contraband and noncontraband items on different pages (compare People v Gomez, 50 AD3d 407, 409-410 [2008] [list limited to evidentiary items held insufficient]).

People v. Pompey (1st Dept. 6/25/2009).  Note that the People introduced the relevant NYPD Patrol Guide section that governs inventory searches as well as the voucher (inventory) that was produced after the search.  The officer also testified how the Patrol Guide satisfies the requirements of Johnson.  Finally, the officer's testimony showed how his search conformed to the procedures in the Patrol Guide.  (LC)

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)

COA, AD1, & AD3 - New Decisions

The Court of Appeals has announced a new decision: People v. McGrantham (Ct. App. 6/25/2009) (SSM), reversing a conviction for Criminally Negligent Homicide.  The defendant was driving a vehicle.  He intended to enter the Belt Parkway but missed the entrance.  He mistakenly drove up the exit ramp instead.  He realized his mistake and made a U-turn across three lanes of traffic.  A motorcycle collided with his car; the operator died.  "Viewing the evidence in the light most favorable to the People, defendant's motion seeking to dismiss the count of the indictment charging him with criminally negligent homicide must be granted. Defendant's decision to make a U-turn across three lanes of traffic to extricate himself from a precarious situation was not wise, but it does not rise to the level of moral blameworthiness required to sustain a charge of criminally negligent homicide."

In addition, there are new decisions today from the First and Third Departments.  (LC)

AT2 - New Decisions

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

COA - New Decision

The Court of Appeals has posted a new decision, People v. Almeter (Ct. App. 6/24/2009) (Lippman, C.J.).

Ordinarily, when an information charges both a misdemeanor and a violation, both charges are submitted to the jury.  See CPL § 340.40(3).  In Altmeter, the defendant was charged with two offenses: Assault 3˚ and Trespass.  The crimes were alleged to have resulted from the same incident: Defendant's refusal to leave the complainant's property, followed by the defendant striking the complainant.  However, the  charges were contained in two separate accusatory instruments.

Near the end of the trial, the prosecutor asked the court whether it intended to render a decision on the trespass charge.  The court responded: "Yes. Yes. [Defense counsel], my practice, if I have violation charges as well as misdemeanor charges, is to have the jury handle statutorily their duty, which is misdemeanor verdict, and have the violation charge handled by this Court, decided by this Court."  The defense attorney indicated that he was not aware of this practice.  The defendant was later acquitted of the assault charge but found guilty, by the court, of Trespass.  County Court affirmed.

The Court of Appeals reversed, but declined to rule on whether CPL § 340.40(3) applies if the charges are contained in two separate accusatory instruments:

It would appear to us evident that if, contrary to reasonable expectation, two trials were to be simultaneously held before different fact-finders, the court was obliged to inform defendant and his counsel of this unique mode of proceeding from the outset.

Defendant was unaware that each of his offenses was being tried to a separate fact finder until the trial was nearly over. The charges were all along treated as if they had been consolidated and, until the prosecutor raised the issue, nothing happened to disabuse defendant of that notion. It would seem fundamental that a defendant should not be required to guess who the fact finder is at his or her trial. As there was every indication that both charges were being tried by the jury, defendant should have been given notice that that in fact would not be the case, and, since there would be more than one fact-finder, of which fact finder would be deciding which charge. This is so, at least in part, because counsel may well determine that a different trial strategy is warranted based upon whether a particular charge is being presented to a judge or to a jury.

While the court may have deemed this particular procedure economical, the economy was a false one where the defendant was not timely advised that his charges were to be tried by separate fact finders.

(LC).

AD1 finds trial court violated defendant's right to present defense to probation violation

Today the First Department unanimously reversed the defendant's resentencing in People v. Padworski (1st Dept. 6/23/2009) because the trial court (Berkman, J.) did not give the defendant an adequate opportunity to be heard on whether he violated the terms of his probation.  As the court explained:

The proceedings of August 16 and September 13, 2006 did not provide defendant with a meaningful opportunity to dispute the alleged violation of probation based on his August 2004 conviction. While CPL 410.70(3) provides for a summary hearing, it does not permit a summary denial of any hearing. Rather than asking defendant whether he wished to make any statement with respect to the violation (see CPL 410.70 [2]), the court refused to permit him to complete the statement he was clearly seeking to make. Defendant cannot be faulted for failing to explain why he was not in violation of his probation, since the court prevented him from doing so.

(LC).

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

Update to restitution cases out of AD4

As I have blogged about before, a trial judge in the Fourth Department had been using his law secretary to conduct restitution hearings.  In a series of decisions, the Fourth Department held that this was improper.  The court reached the issue even though no objection was made below.  The court's decisions were based on its interest-of-justice jurisdiction.  Today, the Fourth Department sua sponte amended its decisions to indicate that its reversals were on the law.  Regarding preservation, the court held that no objection was necessary because the error affected the mode of proceedings.  The amended decisions are here and here.  As a practical matter, the change means that the Court of Appeals can review the case, if leave to appeal is granted.  (LC)

AD2 - New Decisions

The Second Department has posted new decisions, including:

• People v. Hendrix (2d Dept. 6/16/2009) - defendant forfeited the right to be present during his second trial.  At the conclusion of his first trial, which ended in a mistrial, the defendant charged at the bench, struggled with a court officer, and tried to get the officer's gun.  The defendant and his codefendant both had shanks.  "[T]he Supreme Court properly determined that he forfeited his statutory and constitutional rights to be present at his trial. The Supreme Court providently exercised its discretion in directing that he was to participate in his trial through the use of audio and video transmissions. Considering, among other things, the violent nature of a defendant's conduct, the Supreme Court was not obligated to afford the defendant an opportunity to attend the second trial with a warning that any disruptive conduct would result in his removal from the courtroom."
• People v. Montoya (2d Dept. 6/16/2009) - error in limiting cross-examination of prosecution witnesses, as well as Sandoval error, results in new trial.  The Sandoval error concerned a ruling by the trial court that Sandoval only applies to convictions, not ordinary bad acts. Here, the defendant was impeached with the fact that he had not paid taxes.  

(LC)

Will Bronx Eviction Drama Lead to Criminal Charges?

The New York Times has an interesting article in today's paper about an unfolding series of events in Bronx Housing Court.  A number of landlord-tenant cases being litigated by a lawyer named "Robert Klein" are in jeopardy after it was discovered that no such lawyer exists in New York.  Several of his cases had process served by Curtis Brooks, a non-lawyer who has a business card that says "eviction specialist."  Apparently Brooks is the only person who has ever known, met, or spoken with Klein.  The New York Times' article states, "[A]uthorities now suspect that Robert Klein does not exist."  The Bronx District Attorney's Office is conducting an investigation.  (LC)

AD3 - New Decisions

The Third Department has posted new decisions. (LC)

Confrontation Clause Issue Draws Dissent at AD1

In People v. Parker (1st Dept. 6/18/2009), the defendant was charged with Robbery 3˙.  The defendant allegedly stole a medallion from the complainant.  The defense at trial was that it was the complainant who had robbed the defendant and that the medallion in fact belonged to the defendant.  At trial, a police officer testified as to statements made by the defendant's wife, who, at the hospital, became irate at her husband and stated that the medallion was not the defendant's.  At trial, the testimony was admitted for the nonhearsay purpose of explaining why the officer detained the defendant instead of the complainant.

The majority concluded that the defendant's Confrontation Clause claim was not preserved because the defendant made only general objections and his mistrial motion --- made after summations --- was too late to be effective.  Moreover, the majority found the testimony admissible and, in any event, harmless error.

Justice Freedman, in dissent, contended that the claim was preserved.  She also found, "Even were there some basis for admitting the hearsay during the trial, ostensibly to complete a narrative, there was absolutely no basis for allowing the prosecution to continue using it during summation for the clear purpose of substantiating the contention that the medallion did not belong to defendant; ownership of the medallion was the key issue at the trial."  Citing People v. Woods, Justice Freedman would not have applied the harmless error doctrine since the testimony went to a key issue and the prosecutor emphasized the testimony in summation.  (LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

AD2 & AD4 - New Decisions

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

City Bar: Bronx Merger Project Suffering From a Lack of Judges

The New York Law Journal has a free (with registration) article about the Bronx Criminal Division, an experimental merger of the Supreme and Criminal courts in that county.  The Law Journal article discusses a recent report from the New York City Bar criticizing the lack of judges assigned to the merged court.  As a result, the report concludes, there is a growing backlog in felony cases.  (LC)

New COA Cases Today

Today's Court of Appeals cases include:

• People v. Davis (Ct. App. 6/11/2009) (Ciparick, J.; Jones, J., dissenting) - upholding trials of Class B misdemeanors before JHOs, upon consent of the parties.  Judge Jones dissented, finding that there was inadequate evidence of the defendant's waiver of his right to trial before a Criminal Court judge.
• People v. Marte (Ct. App. 6/11/2009) (Smith, J.) - Adams rule regarding suggestive police identification procedures does not apply to identification procedures conducted by civilians.  (In this case, the victim's sister showed him a picture of the defendant.)
• People v. Bailey (Ct. App. 6/11/2009) (Jones, J.; Pigott, J., dissenting) - evidence was legally insufficient that the defendant had the requisite intent to defraud, deceive, or injure another, even though he acknowledged knowing that he was in possession of counterfeit currency.  "Simply put, drawing the inference of defendant's intent from his knowledge that the bills were counterfeit improperly shifts the burden to prove intent from the People to the defendant. Stated another way, by ruling that the evidence was sufficient to sustain defendant's conviction of possession of a forged instrument, the lower courts have effectively stripped the element of intent from the statute and criminalized knowing possession."
• People v. Cano (Ct. App. 6/11/2009) (SSM) - evidence was legally sufficient to convict the defendant of attempt since he came "dangerously near" the commission of the completed crime by arriving at the location where he thought he would have a sexual rendezvous with an underage boy.

(LC)

COA, AD1, AD3, & AT1 - New Decisions

Lots of new decisions today from the Court of Appeals, First Department, Third Department, and First Appellate Term.  (LC)

Notations on Felony Complaint to Reduce to Misdemeanor

In People v. Williams (2d Term 6/2/2009), the defendant was originally charged, by felony complaint, with Grand Larceny 3˙.  The charges were reduced to Petit Larceny and he pleaded guilty.  One of his contentions on appeal was that it was error for the prosecutor to have made the requisite notations on the complaint to effectuate the reduction. 

The Appellate Term, Second Department, rejected the defendant's argument.  The court noted that the statute states that the court "may order" the reduction --- not that the physical notations must themselves be made by the judge.  In any event, the court found that any "technical deviation" from CPL § 180.50 was not a "mode of proceedings" error that excused the lack of objection.  The court also found that the defendant's guilty plea forfeited any claim.  (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)

COA - New Decisions

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

• People v. Decker (Ct. App. 6/9/2009) (Lippman, C.J.) - 15 year delay in bringing prosecution for murder did not deprive defendant of due process.  The People had good reasons for waiting to bring charges: witnesses were intimidated, the People wanted to conduct further investigation, and there was a lack of physical evidence.  Finally, the defendant was not "significantly impaired by the delay."  Applying the Taranovich factors, a unanimous court concluded that the defendant was not deprived of his right to prompt prosecution.
• People v. Mingo (Ct. App. 6/9/2009) (Graffeo, J.) (N.B. at present, the online version of the opinion has significant formatting errors and does not load correction) - what constitutes "reliable hearsay" for purposes of determining a defendant's SORA risk level.  A unanimous court adopted the following test: "We conclude that hearsay is reliable for SORA purposes — and, therefore, admissible — if, based on the circumstances surrounding the development of the proof, a reasonable person would deem it trustworthy."

(LC)