New York Criminal Law and Procedure

DWI conviction draws 15 year sentence

In People v. Travis (2d Dept. 11/24/2009), a divided panel of the Second Department affirmed a defendant's conviction for DWI and sentence, as a persistent felony offender, to 15-years-to-life in prison.  In the majority's view, this extremely lengthy, potentially life sentence was warranted because:

In the 23 years prior to sentencing, the defendant had been arrested and convicted of eight previous charges of operating a motor vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192(3) [driving while intoxicated], six of which were felonies. Based upon the defendant's continued drinking and his continued failure to refrain from mixing alcohol and the privilege of driving an automobile, we find no reason to disturb the County Court's treatment of the defendant as a persistent felony offender. The sentence imposed was not excessive.

Dissenting from this sentencing issue, Justice Hall wrote:

[The defendant] has no history of violence and has never caused physical injury or property damage through these accidents. His most recent felony conviction for driving while intoxicated was 10 years ago, in 1999, for which he received an indeterminate sentence of 1½ to 4½ years of imprisonment. .. With respect to the underlying incident, the defendant was not observed driving recklessly, erratically, or otherwise. The defendant was observed while parking his vehicle, which he drove less than 100 feet. He was traveling at the posted speed limit of 30 miles per hour, and the arresting officer did not observe a moving violation. The defendant was approached by police officers on the basis that one of the headlights of his truck was not working. The arresting officer testified that the vehicle came to a stop in a normal fashion.

In my estimation, the facts of this case demonstrate that, while the defendant is certainly suffering from long-term alcoholism, he did not possess the requisite culpability to warrant a sentence of incarceration of 15 years to life. This Court should exercise its discretion by reducing the defendant's sentence and imposing the maximum sentence for a class E felony (see Vehicle and Traffic Law § 1193[1][c]), an indeterminate sentence of 1 to 4 years of imprisonment (see Penal Law § 70.00[2][e]).

(LC).

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)

AD3 - New Decisions

The Third Department has posted new decisions.  (LC)

When does a breach of contract result in criminal liability?

The Fourth Department addressed this question in People v. Abeel (4th Dept. 11/13/2009), a People's appeal.  In that case, the defendant entered into a contract with a church to do some construction work.  The church gave him money to purchase materials for the project.  He was subsequently charged with Grand Larceny 3º after he failed to complete any of the agreed-upon work.

The court noted the general rule that mere failure to perform a promise is not, by itself, sufficient evidence to establish larceny-by-trick.  Rather, the defendant's larcenous intent must be shown by additional facts. 

Here, the defendant spent the money purportedly for materials on past-due bills instead. He failed to return calls from the church and gave "dubious" excuses to the investigating trooper for why he had not done the work.  The defendant also lied about being in jail for three months (in fact, he was only in jail for a few days).  Under the circumstances, the evidence was legally sufficient to support the Grand Larceny charge.  The trial court therefore erred in granting the postverdict motion to dismiss.  (LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

COA - New Decisions

The Court of Appeals has announced new decisions:

• People v. Samandarov (Ct. App. 11/24/2009) (Smith, J.) (5-2) - no Brady violation
• People v. Davis (Ct. App. 11/24/2009) (Ciparick, J.) (5-2) - CPCS 7º does not have to be submitted as a lesser included offense of CSCS even if agency defense presented
• People v. Tabb (Ct. App. 11/24/2009) (SSM) (7-0) - mode of proceedings error when trial judge did comply with CPL § 310.30 when jury requested clarification of legal definition of self-defense

(LC)

Advising a client on effect of guilty plea on possible parole revocation

A defendant's guilty plea is not voluntarily, knowingly, and intelligently made if he received ineffective assistance of counsel in deciding whether to enter the plea.  In People v. White (2d Dept. 11/17/2009), the defendant entered a guilty plea to CPCS 5º.  His attorney repeatedly assured him that the guilty plea would not result in an automatic revocation of his parole on a separate matter.  Ordinarily, as the court pointed out, parole revocation is a collateral consequence and, thus, an attorney is under no duty to advise a client that the guilty plea may result in a revocation of parole.  However, as in White, if a defense attorney gives affirmative mis-advice, it can constitute ineffective assistance. 

The court found that "[b]ut for counsel's error, it is unlikely that the defendant would have pleaded guilty."  Counsel sent numerous letters to the defendant, repeatedly assuring him that his parole would not be revoked.  The plea minutes indicate the People were also aware of the defendant's concerns.  Accordingly, the court reversed the defendant's conviction.  Notably, the People conceded that the defense attorney provided ineffective assistance of counsel.  (LC)

COA - New Decisions

The Court of Appeals announced new decisions today:

• Matter of Walton v. DOCS (Ct. App. 11/23/2009) (Graffeo, J.) (5-1-1) - upholding pre-Spitzer DOCS policy of charging a commission on inmate telephone calls
• People v. Alemany (Ct. App. 11/23/2009) (Read, J.) (6-0) - homelessness can be aggravating factor under SORA if the defendant has no demonstrable history of living in shelters or otherwise having community ties
• People v. Henderson (Ct. App. 11/23/2009) (7-0) - assault prosecution stemming from a fight at Riker's Island.  Prosecutor did not make improper argument in explaining why inmate-victim, who testified for the defense, changed his story and did not identify the defendant.*
• People v. Gillyard (Ct. App. 11/23/2009) (Pigott, J.) (6-0) - Molineux, harmless error.

* In full disclosure, I litigated Henderson at the Appellate Division level when I was an A.D.A. in the Bronx.

Flashing brights does not give cause for car stop

In People v. Rose (4th Dept. 11/13/2009), a unanimous panel of the Fourth Department concluded the police lacked reasonable suspicion to stop the defendant's vehicle after the driver flashed its brights while an oncoming car approached.  The court noted the general rule that "police stops of automobiles in this State are legal only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations or where there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime' . . . or where the police have probable cause to believe that the driver . . . has committed a traffic violation'."  Here, the police officer relied on VTL § 375(3), which he claimed prohibited the flashing of brights.  The court concluded, "Section 375(3) actually provides in relevant part that, 'whenever a vehicle approaching from ahead is within [500] feet . . ., the headlamps, if of the multiple beam type . . . shall be operated so that dazzling light does not interfere with the driver of the approaching vehicle . . . .' The mere flashing of lights, alone, does not constitute a violation of the statute."  Since the officer operated on a mistake of law, suppression was required --- a result with which I agree.

However, the court's recitation of the law omits a key component of the rule, in my opinion.  Police do not just enforce the law; they also serve a community caretaking function (rescuing cats from trees, helping car accident victims, giving directions, etc.).  There are certain situations in which a traffic stop could be justifiably based on the community caretaking function.  For example, a person flashing their brights might be trying to signal distress of some kind.  Perhaps there is a kidnapper with a loaded gun in the passenger seat.  Or maybe the driver needs medical attention and does not have a cell phone to call an ambulance.  For whatever reason, the flashing of brights might be a signal for help.  If the objective circumstances support that conclusion, the officer should be able to make a limited stop.  Nevertheless, since the officer in Rose explicitly testified that he stopped the car because he thought the driver violated the VTL, it is purely an academic question in this case and the court reached the right result.  (LC)

Transportation to police station amounts to de facto arrest

In People v. Gayden (4th Dept. 11/13/2009), the police suspected the defendant of participating in a burglary.  He was first interviewed at a hospital, where he was being treated for a gunshot wound.  He claimed that he was the victim of a robbery.  A few weeks later, the police went to his residence and asked him to take them to the scene of the alleged robbery. The defendant agreed to do so and there was no dispute on appeal that this was consensual.  Once at the purported crime scene, the "officers then transported defendant to the police station," where the defendant gave incriminating statements. 

The Fourth Department concluded that the transportation of the defendant to the police station amounted to a de facto arrest.  "[T]he People failed to present any evidence at the suppression hearing on the issue whether defendant, who had no other means of transportation to travel back to his home, in fact consented to accompany the officers to the police station."  (LC)

Out-of-state DWI blood draws

People v. Lerow (4th Dept. 11/20/2009) (Peradotto, J.) presents a question of first impression for New York courts and will likely be taken up by the Court of Appeals.  In that case, the defendant was injured in a motorcycle accident.  Responding officers, as well as an eyewitness, reported the defendant's breath smelled of an alcoholic beverage.  Because of his injuries, the defendant was transported to a hospital in Pennsylvania.  A New York sheriff's deputy went to the hospital and requested that a nurse take a sample of the defendant's blood.  The question is whether this blood draw was lawful because it was done out-of-state.

The Fourth Department unanimously concluded that deputy had authority to order the blood draw even though he was out-of-state.  The court distinguished between official acts that depend on the sovereignty of the state --- such as the power of arrest --- with mere evidence gathering.  A "police officer" does not lose his status as an agent of the state under the latter category merely because he leaves the state.  Moreover, the court held that it would be illogical to limit the reach of the implied consent statute based on the "fortuity" of the defendant requiring medical care outside of the state.  The court cited favorably decisions of other states upholding the authority of their officers to collect DWI blood samples out-of-state.  Since Pennsylvania has a similar implied consent law, the court's rule would not offend Pennsylvania law or that state's public policy. 

(The court also rejected an argument that Pennsylvania law, which requires blood draws by physicians, not nurses, should control, reasoning that choice-of-law principles dictated the application of New York law, the law of the prosecution forum.)

The court's arguments are persuasive, but I am not entirely convinced by its reasoning.  The sheriff's deputy was not merely collecting evidence --- at least not in the same sense that a detective does when he interviews witnesses out-of-state, for example.  Rather, the authority under the implied consent statute is a specific grant of authority by the state only to a certain class of persons: "police officers."  Only official "police officer" may request a blood draw, not a private citizen. In contrast, any private citizen could conceivably go into another state and take witness statements.  (LC)

AD2 & AD4 - New Decisions

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

COA, AD1, & AT2 - New Decisions

There are new decisions today from the Court of Appeals:

• People v. Brown (Ct. App. 11/19/2009) (Ciparick, J.) (7-0) - no Crawford violation for admission of a DNA report prepared by a subcontractor laboratory for the Medical Examiner.  Held, the report was not "testimonial."
• People v. Colon (Ct. App. 11/19/2009) (Graffeo, J.) (6-0) - finding a Brady violation and granting the defendant's 440 motion

There are also new decisions from the First Department and Second Appellate Term.  (LC)

AD1 & AD4 - New Decisions

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

Tolling civil statutes of limitation for criminal prosecutions

A colleague recently brought to my attention CPLR 215(8), an interesting statute that may have implications for criminal practitioners who also handle personal injury cases.  CPLR 215 generally governs the statute of limitations -- one year -- for intentional torts such as assault, battery, false imprisonment, malicious prosecution, libel, and slander.

CPLR 215(8) provides an exception to the one year limitations period when "it is shown that a criminal action against the same defendant has been commenced with respect to the event or occurrence from which a claim governed by this section arises."  The plaintiff then has one year from the termination of the criminal prosecution to the bring the civil lawsuit "notwithstanding that the time in which to commence such action has already expired or has less than a year remaining."  (For sex crimes, the grace period is 5 years, not 1.)  For the definition of termination, CPLR 215(8) directs the reader to CPL § 1.20, which provides that a criminal action is terminated with the imposition of sentence "or some other final disposition in a criminal court of the last accusatory instrument filed in the case."

There are obvious policy benefits to this statute for all involved:

• For the defendant, he is not forced to litigate two cases at the same time, particularly since the civil action could require him to present his own evidence to defend against a motion for summary judgment.
• Conceivably, a defendant could negotiation a global settlement of both the criminal and civil actions.  If the plaintiff-victim wants restitution more than imprisonment/punishment, he or she can notify the prosecution of that interest.
• For the plaintiff-victim, he or she may be able to see how the People's evidence --- which will probably his or her own evidence later on --- at trial develops. 

There are downsides, however.  A defendant might not necessarily receive notice of the civil action.  Having resolved a criminal action, he may move on with his life, only to discover --- a year later --- that he is being sued civilly.  Evidence may be lost, etc.

My colleague and I are interested to see how this statute works in practice.  If you have any anecdotes to share concerning CPLR 215(8), please contact me at cunninl1@stjohns.edu.  (LC)

Latest on Eyewitness Identification Experts

In People v. Abney (Ct. App. 10/27/2009) and People v. Allen (Ct. App. 10/27/2009), the Court of Appeals provided further guidance for trial courts regarding the admissibility of eyewitness identification expert testimony.  Reversing in one case and affirming in the other, the court took a step in drawing a line between cases warranting experts and those that do not.

To recap the law, expert testimony on eyewitness identification is neither per se admissible nor automatically inadmissible.  Rather, the decision to admit the testimony is discretionary with the trial judge, subject of course to the guidance provided by the Court of Appeals.  In this respect, the court has seemed to draw the abuse-of-discretion line between cases where the only (or primary) evidence against the accused is an eyewitness identification by a stranger and, on the other hand, cases where other evidence of guilt exists.

In Abney, the court reversed because the trial court should have admitted evidence from an eyewitness id expert.  The defendant was charged with robbing a 13-year-old girl, who did not know him.  The only evidence against the defendant was the victim's identification.  Thus, expert testimony should have been admitted.  On the other hand, Allen was affirmed.  In that case, the defendant and an accomplice robbed a barbershop while wearing masks.  Nevertheless, the witnesses recognized the defendant's voice and body type.  They were able to provide the police with the defendant's nickname.   He was, thus, not a stranger to either a witness.  (LC)

AD2 & AT2 - New Decisions

There are new decisions from the Second Department and Second Appellate Term.  (LC)

Conviction reversed on suppression grounds

Today, the First Department reversed the conviction in People v. Bethea (1st Dept. 11/12/2009).  Plainclothes police observed the defendant on a streetcorner known for prostitution and drug activity.  When the defendant made eye contact with them, he turned and walked away.  The police identified themselves and told him to stop, but he continued walking.  One of the officers began running towards the defendant.  As he approached, the defendant appeared to put something in his mouth.  Another officer told the defendant to open his mouth; he removed the bag, which fell into the defendant's hands.  A struggled ensued.  Eventually the bag was recovered.

The court held the police lacked reasonable suspicion for the pursuit because the defendant's conduct, which amounted to walking away, was not sufficiently incriminating.  The subsequent placement of the drugs into the defendant's mouth did not justify the pursuit that preceded it.  (LC)

AD1, AD3, & AT1 - New Decisions

The First and Third Departments, as well as the First Appellate Term, have posted new decisions.  (LC)

Translators of statements

People v. Quan Hong Ye (1st Dept. 11/10/2009) addresses whether police officers may serve as translators for interviewed defendants.  In that case, the defendant was questioned by the arresting officer about a drug charge.  Another police officer served as the translator.  At trial, the arresting officer testified concerning the defendant's admissions, which were translated by the second officer.  The court held that this was proper. 

The translation was admissible under the agency exception to the hearsay rule.  Although the defendant himself did not select the translator, he did not object to the selection.  That the translating officer worked for the Police Department is of no moment, since there was no evidence that the translating officer had a motive to mislead or that the translations were inaccurate.  The translator testified as to both the translation and the substance of the defendant's admissions, which were similar to the summary provided by the arresting officer.  (LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

Reversal for failure to appreciate sentencing discretion

In People v. Charles (2d Dept. 11/4/2009), the sentencing court believed the minimum sentence in defendant's case for Robbery 1º was 10 years.  The sentencing court noted several factors in mitigation and expressed displeasure at not being able to go below 10 years.  Accordingly, the court gave the "minimum term" of 10 years.  However, the minimum term under the law was actually 5 years.  Finding the sentencing court did not fully appreciate its discretion, the Second Department reversed and remanded for resentencing.  "At the resentencing, the court is free to impose the lawful sentences which it deems appropriate, including a 10-year net determinate term of imprisonment if, in the exercise of its full discretion, it finds such a term to be warranted." 

Note that the claim survived a waiver of the right to appeal.  The waiver precluded the defendant's excessive sentence claim, but not his assertion that the court below did not appreciate its discretion at sentencing.  (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)