New York Criminal Law and Procedure

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)

New blog on Habeas Corpus

There is an interesting new blog on the scene: Habeas Corpus Blog: Keeping Track of the Great Writ for New York State Prisoners.  It is by Jonathan Kirshbaum, a senior appellate counsel at the Center for Appellate Litigation (although a disclaimer notes that the blog is not affiliated with CAL or Brooklyn Law, where Mr. Kirshbaum is also an adjunct professor).  I encourage readers to check it out.  It has a lot of helpful information about recent habeas cases in the federal court system.  (LC)

AD3 - New Decision

There is one new decision from the Third Department, People v. Black (3d Dept. 8/26/2009).  It is an interesting case that highlights the problem of duplicitous counts.  The 36-count indictment charged various sex and endangering the welfare of a child offenses arising out of the defendant's sexual abuse of his girlfriend's step-granddaughter.  The court does a thorough analysis, demonstrating why certain counts were duplicitous and others were not.

Another aspect of the case caught the court's attention.  At sentencing, the court said it was imposing the maximum sentences on each count and directing that they run consecutive to each other where allowed by law.  The appellate court noted that the better practice is for a sentencing court to specify which counts run consecutive and which run concurrent.  The Appellate Division then did what the sentencing court should have done and applied the rules of consecutive/concurrent sentencing.  The aggregate term was modified to 9-to-28 years.  (LC)

Who is liable for gambling and alcohol violations?

During the late evening of Super Bowl Sunday, 2007, there was a fatal car crash in Putnam County.  One of the persons killed was a part-time bartender at a bar/restaurant called The Paddock.  She was intoxicated at the time of the accident.  At trial, the People's witness testified that the bartender, who was off-duty, went to The Paddock, poured herself a drink, and then left.  A defense witness testified that he---the bartender on-duty---had served her drinks on another customer's tab.  The owner of The Paddock was charged with Selling Alcoholic Beverages to a Visibly Intoxicated Person and Permitting Gambling on Licensed Premises.  The latter charge stemmed from a Super Bowl pool being operated out of the bar.

The Appellate Term, Second Department, reversed the defendant's convictions (People v. Knox [2d App. Term. 8/19/2009]).  The gambling statute prohibits a "person licensed" to sell alcoholic beverages to permit gambling on those premises.  The court reversed the gambling conviction because the alcohol license was in the name of a corporation.  There was no factual basis to pierce the corporate veil.

Regarding the alcohol sale charge, the court noted that both a licensee corporation and an employee can be liable.  However, the court reversed the conviction because there was no evidence of a "sale."  According to the People's theory, the off-duty bartender poured her own drink; this would not qualify as a "sale."  However, a defense witness testified that he gave the woman drinks and put them on another customer's tab.  This would qualify as a "sale."  However, the court found the conviction was against the weight of the evidence because there was minimal evidence that the defendant---the owner---had the "requisite personal involvement with [the] service to create criminal liability."  (LC)

AT2 - New Decision

The Second Appellate Term has released a new decision.  (LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

AD2 - New Decisions

The Second Department has posted new decisions.  There are also new decisions from the Third and Fourth Departments, but none pertain to criminal matters.  (LC)

AT1 - New Decisions

The First Appellate Term has posted new decisions.  (LC)

AT1 - New Decisions

The First Appellate Term has posted new decisions.  (LC)

Reversal for denial of suppression motion without a hearing

In People v. Frank (1st Dept. 8/18/2009), the motion court had summarily denied the defendant's motion to suppress because he had failed to set forth sufficient facts in his motion papers to warrant a hearing.  The First Department reversed, holding that defense counsel's affirmation set forth all of the particulars necessary for establishing a Payton violation.  Counsel averred that the defendant was "lawfully inside his apartment," the defendant did not do anything that would give grounds for arrest, and all of the items in the Voluntary Disclosure Form were illegally seized because the police did not have probable cause and a warrant.  The People did not counter with facts that would counter these assertions.  There was no claim that the defendant was, in fact, out of the apartment, that the police had a warrant, or that the defendant gave consent for the search.

Accordingly, the court found that the motion court should have held a hearing.  The case on appeal has been held in abeyance and the case remanded so the motion court could conduct a hearing.  (LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

AD3 & AT1 - New Decisions

There are new decisions from the Third Department and First Appellate Term.  

Expansion of sex offender courts

State court administrators have promulgated new rules authorizing the creation of sex offender courts throughout the state and enabling certain courts to hear misdemeanors, not just felonies.  (LC)

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

AD2 decides two cases on child testimony

This week, the Second Department decided two issues dealing with the capacity of children to take an oath and testify:

• People v. Batista (2d Dept. 8/4/2009) - On the People's appeal from the dismissal of the indictment, the court held that the 4-year-old witness was not capable of appreciating the nature of the oath or the consequences for failing to tell the truth.  Accordingly, her taped testimony should not have been presented to the Grand Jury as sworn testimony.  And since the People offered the evidence as sworn testimony and did not instruct the Grand Jury on the need for corroboration, County Court was not required to reach the issue of whether there was sufficient evidence before the Grand Jury that would suffice to corroborate the child's unsworn testimony.
• People v. Castellanos (2d Dept. 8/4/2009) - The court affirmed the defendant's conviction.  A 6-year-old witness testified at trial.  The court found he was competent to give testimony because the "examination of the child revealed that he knew the difference between telling the truth and telling a lie, promised to tell the truth, and indicated that he would be punished by his mother and by God if he lied."  Curiously, the court stated that the complainant was competent to give "unsworn" testimony.  However, the court's finding --- that he knew the different between the truth and a lie, promised to tell the truth, and understand the consequences for telling a lie -- satisfied the standard for sworn testimony.  Perhaps this was a typo in the court's opinion and, in fact, the child gave sworn testimony?  If it was unsworn testimony, there would be no need to establish the requirements of knowledge, promise, and potential punishment.  See CPL 60.20(2). 

(LC) 

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)

AD3 reduces sentence in the interest of justice

In People v. Tesar (3d Dept. 8/6/2009), the defendant pleaded guilty to Grand Larceny 2º and Tampering with Public Records 1º.  She was formerly the clerk/treasurer of the Village of Port Henry.  She stole over $150,000 from the Village coffers.  After charges were filed, she pleaded guilty and waived her right to appeal.  No sentencing promise was made to her.  The defendant was sentenced to consecutive terms of 5-to-15 and 2-to-7 years.

The Appellate Division found that the trial court failed to advise the defendant of the maximum sentence she faced.  Accordingly, the court found the appellate waiver to be invalid.  Interestingly, the court also used this fact as part of its rationale to lower the defendant's sentence in the interest of justice:

Circumstances that merit consideration with regard to defendant's claim that her sentence is harsh and excessive are that defendant has no prior criminal record and she paid full restitution by the time of sentencing. In view of these factors and the failure to formally advise defendant of all relevant considerations at the time of the plea, we exercise our interest of justice jurisdiction and modify the sentence by directing that the terms of imprisonment for each crime run concurrently.

(emphasis added) (LC)

AD3 - New Decisions

The Third Department has posted new decisions.  (LC)

When a judge answers a jury question inartfully

Except for readbacks of instructions, most judges respond to jury questions extemporaneously.  As a result, sometimes they misspeak, phrase things inartfully, or omit pieces of information.  In People v. Simmons (1st Dept. 8/4/2009), Justice Saxe, writing for the majority, concluded that a trial judge's inartful response to a jury question did not warrant reversal.

At issue was the trial court's answer to the jury's question about intent and whether the defendant could have formed the requisite intent in the spur of the moment.  The court said, "In this instance my answer is yes."  In affirming the judgment of conviction, the court explained:

These seven words present the nub of the difficulty, since, to the extent they are viewed in a vacuum, removed from the context of the instructions as a whole, these words seem to convey the sense that the court has made its own definitive determination that "in this instance" the defendant's spur of the moment action did, absolutely, "constitute intent."

But trial judges, like everyone else, may on occasion employ inartful phrasings, "which, isolated from their context, seem erroneous" (People v Drake, 7 NY3d at 33 [internal quotation marks & citation omitted]). It is for this reason that we are required to view the court's instruction to the jury in its entirety.

By the time it employed those seven words, the trial court had given the jury an extended charge regarding the element of intent. It had instructed that intent "is a mental operation that can be determined usually only by an examination of all the facts and circumstances surrounding the commission of a crime and the events leading up to, including and following it," that "its formation can be instantaneous or drawn out," and that "since intent is, as pointed out, a mental operation[,] it is not always easy to establish. It depends upon the peculiar circumstances of the case." By giving these additional instructions as to the considerations relevant to finding intent, before answering the jury's direct question, the court was in effect emphasizing its previous instruction that the question of whether the requisite intent was established remained one for the jury, not the judge, to decide.

The court then moved on to the jury's direct question, "Does a spur of the moment action constitute intent?" (which the court properly treated as if it read, "Can a spur of the moment action constitute an intentional act?"), and answered with the previously discussed language that ended with the words "In this instance my answer is yes." Since the jury's clear intent was to ask if a spur of the moment action could be intentional, the answer "Yes" meant not, "Yes, defendant harbored such an intent," but "Yes, defendant could have formed the necessary intent at the spur of the moment."

Moreover, the court rejected an argument that a hypothetical used by the trial court was improper:

Hypotheticals similar to the case at hand are proper as long as they are not so "strikingly similar" as to convey the judge's belief in the defendant's guilt and possibly compel the jury to reach a verdict "in harmony" with the judge's conclusion (see People v Hommel, 41 NY2d 427, 430 [1977]). The hypothetical used by the court, about a shooting precipitated by two men bumping into each other, bears little relationship to the fact pattern presented here, in which defendant approached the victim, confronted him about a prior incident, struck him and — as the jury found — shot him. The court's analogy was not so similar to the facts of this case as to convey the court's view of the evidence.

The majority also emphasized the difficult position that trial judges are in when they respond to jury questions:

When a deliberating jury requests additional instructions on an issue, the trial court must "respond meaningfully" (People v Malloy, 55 NY2d 296, 302 [1982], cert denied 459 US 847 [1982]). So, while trial judges must be careful when providing supplemental instructions beyond the studied language of the CJI, it is necessary that their answers actually be responsive to the particular question. A simple re-reading of the standard CJI instructions, to which cautious judges may prefer to limit themselves, may be insufficient to provide the clarification needed by the jury on a particular issue when the initial standard charge language failed to explain the point clearly enough. We therefore look to trial judges to exercise judgment and discretion in framing meaningful responses to jury questions. But, in exchange for imposing that responsibility, we must, in turn, allow for a degree of imperfection in the framing of such off-the-cuff answers. When a prejudicial impact is claimed, we should carefully examine the entire charge for its impact as a whole before sending the matter back for a new trial. Upon so doing here, we find that the charge, as a whole, conveyed that it was the jury's task to determine whether defendant harbored the requisite intent at the moment of the assault.

Justices Moskowitz and Acosta dissented. 

The court's answer to the jury's question about spur of the moment intent prejudiced defendant. In answering the jury's question, the court inadvertently answered the ultimate question in the case, because any reasonable juror could easily have concluded that, the words "in this context"referred to the case at hand and that "yes" meant that defendant had acted with intent (see People v Watkins, 157 AD2d at 307 ["a court may not suggest its own opinion as to guilt"]).

The court compounded the prejudice by givingthe jury a hypothetical involving "two guys" who "bump one another on the street" one says "[ ]screw you['] to the other guy and this guy pulls out a pistol and shoots him." This hypothetical was prejudicial because it closely resembled the prosecution's version of events: that defendant rode his bicycle into a courtyard where Mark was sitting, hit Mark and shot him. By giving this hypothetical and telling the jury that the criminal in the example acted with criminal intent, the court essentially instructed the jury that defendant intended to shoot Mark.

The court's instruction was particularly prejudicial given that it was hotly contested whether defendant brought his own gun to the scene or it was Mark's gun that discharged during the struggle with defendant. Which version of events to believe was critical to the determination of whether or not defendant had the requisite intent. The court's instruction took this determination away from the jury.

The dissent responded to the majority's concern for the dilemma faced by trial judges:

I am not unmindful of the difficulties trial judges face in responding meaningfully to questions from the jury. I recognize, as does the majority, that the standard charge may be insufficient to provide the jury with the information it needs to return a verdict. However, the paramount responsibility of a judge is to ensure a fair trial. Thus, while the majority would allow for "inartful phrasings" or "a degree of imperfection" in a judge's framing of "off-the-cuff answers," a question from the jury does not mean a judge may suggest his or her own opinion about the guilt of the defendant or offer a hypothetical that favors one side.

The issue was properly preserved, since the defense objected to the court's answer.  It seems to me that many of the dissent's concerns could have been resolved with a prompt curative instruction clarifying whatever in the initial response was inartfully worded.  (LC) 

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

Plaxico Burress indicted

Plaxico Burress, former New York Giants receiver, was indicted by a New York County Grand Jury for CPW 2º and Reckless Endangerment 2º, stemming from an incident on November 29, 2008, during which Mr. Burress allegedly shot himself in the foot at a nightclub in Manhattan. 

In a press release, District Attorney Robert Morgenthau appeared to address claims that Burress was singled out for prosecution:

In this case, we conducted a thorough investigation and then presented the evidence to the Grand Jury, which evaluated the facts under the applicable law. The case required a more protracted investigation than does a typical weapons possession case, given the number of witnesses and the need to investigate events both before and after the shooting. The case was treated like any similar case against any other defendant. Ultimately, the Grand Jury did what it thought was fair.

(LC)

Omnibus motion decided in People v. Monserrate

State Senator Hiram Monserrate is charged, in Queens Supreme Court, with various counts and degrees of assault, stemming from an alleged domestic dispute in December 2008.  Today, Supreme Court's decision addressing the defendant's omnibus motion was posted on the UCS website.  In sum, it appears that nearly all of the relief, including dismissal and suppression of evidence, that was sought by the defense was denied by Justice Erlbaum.  A September 14th trial date has been set.  (LC)