New York Criminal Law and Procedure

AD1 & AD3 - New Decisions

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

AT2 - New Decision

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

Welcome to new contributors to the blog

My research assistants, Darnisha A. Lewis and Joshua T. Reece, both 3L's at St. John's, are joining the blog as contributors.  They will be writing case summaries of Appellate Division decisions.  Their assistance will help increase the volume and diversity of cases that are summarized on the blog.

Both Darnisha and Joshua have a keen interest in criminal law, have taken numerous courses in criminal procedure and advocacy, and have interned at various criminal justice agencies. 

Welcome on-board, Darnisha and Joshua!  (LC)

AD1 rejects challenge to SORA Risk Assessment Instrument

In People v. Ferrer (1st Dept. 1/26/2010), the First Department unanimously rejected a challenge to the SORA Risk Assessment Instrument.  The defendant introduced the testimony of an expert witness, who contended that the RAI is unreliable and is not a scientifically accepted predictor of future dangerousness.  The expert testified that a different instrument, the STATIC-99, is more reliable.  The defendant presented evidence that he is a lower risk under the STATIC-99 than under the RAI.

Nevertheless, the court rejected the defendant's challenge because he failed to demonstrate that the RAI is unconstitutional.  The court noted that, after a SORA hearing, a court may depart downward from the RAI score in its discretion.  The RAI is thus merely presumptive.  "Here, the hearing court's decision indicates that it weighed the RAI against the defense evidence and arguments, and that it properly concluded that defendant had a moderate risk of reoffense, so that a level two assessment was appropriate." (LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

Confrontation Clause violation results in reversal in AD2

In People v. Fairweather (2d Dept. 1/19/2010), the defendant was charged with Assault 1º and related offenses.  The conviction was reversed because of a Confrontation Clause violation; the court did not find it was harmless error.

The detective who arrested the defendant testified that he determined the defendant was a suspect after speaking with the complainant, who did not testify.  "The challenged testimony was improper, since it directly implied that the complainant identified the defendant as the perpetrator."  The court declined to apply the harmless error doctrine because the evidence of guilt was not overwhelming and the prosecutor had stated, in his opening statement, that the complainant would testify.

The Confrontation Clause claim was not preserved; however, the court reached the issue in the interest of justice.  Hence, the Court of Appeals cannot review this question.  (LC)

"That's Fine"

Under CPL § 30.30, an adjournment is not chargeable to the People if was with the consent of the defense.  In People v. Brown (2d Dept. 1/19/2010), the defendant entered into an agreement with the People that he would consent to every adjournment until such time as he requested a preliminary hearing in the local criminal court.  On the date in question, he asked for a preliminary hearing.  The following exchange then occurred:

THE COURT: All right, This is adjourned without date . . . [W]e will notify the parties.

DEFENSE COUNSEL: That's fine.

Was counsel saying the adjournment was fine?  In other words, was he consenting to the adjournment?  Or was he saying that the off-calendar notification of the adjournment date was fine?  The Second Department concluded it was the latter.  Stated another way, the statement was not an unambiguous expression of consent to the adjournment.  Accordingly, the time was chargeable to the People and the defendant's 30.30 motion should have been granted.

Lesson for prosecutors?  Make sure the record is clear; otherwise, one runs the risk that the motion court may, in hindsight, view the record as ambiguous and charge the time to the People.  For defense counsel, it was probably a good idea to have said, "We do not consent to the adjournment but we are fine with the court's proposal to notify us off-calendar of the new date."  (LC)

AD2 & AD3 - New Decisions

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

Speedy sentencing

"Speedy trial" is a frequently litigated claim in criminal cases.  There is a related concept that comes up only once in a while: speedy sentencing. A defendant who is convicted of a crime has a constitutional right to be sentenced in a timely fashion.  Like the constitutional speedy trial rule (see People v. Taranovich, 37 N.Y.2d 442 [1975]), only egregious and prejudicial delays will result in a violation.

In People v. Robinson (1st Dept. 1/21/2010), the First Department found that the defendant had not succeeded in establishing a speedy sentencing violation.  There was an 11-year delay between his guilty plea and sentence.  However, most of the delay was attributable to the defendant.  He failed to appear for his first sentencing date in 1997 and "remained at large and continued to disregard his legal duty to present himself for sentencing in New York."  He argued on appeal that there were two occasions when the People could have had him produced for sentencing.  On the first, he was arrested in New Jersey in 1999.  However, there was no evidence the People were aware of his arrest until after he had been released.  The second occasion was an arrest in Pennsylvania in 2005.  The People made a prompt request for extradition, but the defendant was released by Pennsylvania authorities before the People could followup.  (LC) 

Reversal for prosecutorial misconduct

Today, the First Department reversed a burglary conviction from Bronx County because the trial prosecutor committed misconduct.  Prosecutorial misconduct claims generally require proof of a pattern of missteps; a single, isolated comment that, in hindsight, was better left unsaid, will not be sufficient to reverse a conviction.  Frequently, prosecutorial misconduct claims arise from improper questions during cross-examination of the defendant and inappropriate statements during summation.

In People v. Ortiz (1st Dept. 1/21/2010), the court found the following errors by the prosecutor:

• violating the trial court's Sandoval ruling; 
• trying to impeach the defendant "with his supposed dishonesty in initially entering pleas of not guilty in prior cases followed by allegedly belated pleas of guilty";
• introducing a mugshot of the defendant's girlfriend, who did not testify, and referring to her criminal history, which had the effect of "suggest[ing] that defendant was associated with a disreputable person";
• arguing, in summation, that the defendant had a propensity for committing crimes;
• stating the defendant "knows he did it"; and
• telling the jury "he was waiting for the jury to 'give him his razor back and let him walk out the door.'"

While none of the summation-related claims were properly preserved, the court nevertheless reached them in the interest of justice.  The court also found the errors were not harmless.

Importantly, this case demonstrates how the cumulative effect of multiple errors by the prosecutor can result in a reversal.  (LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

AD1, AD2, AD3, & AT1 - New Decisions

New decisions from the First, Second, and Third Departments, as well as the First Appellate Term.  (LC)

AT1 - New Decision

There is a new decision from the First Appellate Term.  (LC)

COA & AD1 - New Decisions

The Court of Appeals has announced new decisions:

• People v. Ramos (Ct. App. 1/12/2009) (SSM) - business record improperly admitted.  Reversal.
• People ex rel. Blake v. Pataki (Ct. App. 1/12/2009) (SSM) - extradition.  Fugitive's equitable argument had to be directed at the demanding state, in this case South Carolina.

In addition, there are new decisions from the First Department.

AD2 & AD3 - New Decisions

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

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

Prior version of NYC Parade Permit Law held unconstitutional

This week, the First Appellate Term declared the pre-2007 version of New York City's Parade Permit Law to be unconstitutional.  The case is People v. Beck (1st App. Term 1/4/2010).

Various Critical Mass bicyclists were arrested on February 25, 2005, and charged with Disorderly Conduct and Parading Without a Permit.  The court upheld the defendants' convictions for Disorderly Conduct (Penal Law § 240.20[5] [obstruction of vehicular or pedestrian traffic]).

Parading Without a Permit is a violation of the Administrative Code, which requires police permits for "processions" and "parades."  These terms are defined in the Rules of the City of New York.  At the time, the RCNY defined a "parade or procession" as "any march, motorcade, caravan, promenade, foot or bicycle race, or similar event of any kind, upon any public street or roadway."

Since the applied to any group of people, no matter the size, the statute was overbroad.  While the city has a legitimate interest in crowd control and public safety, the statute "burden[ed] substantially more speech and expressive conduct than [was] necessary to further" these interests.  The court went on to hold:

That the City, in practice, may not have required permits for "parades" and "processions" involving small groups is immaterial; a court cannot presume that the official responsible for issuing permits will act in good faith and adhere to standards absent from the face of the permit law. Relatedly, the permit law under which defendants were convicted afforded the City, acting through the police commissioner, unduly broad discretion in determining whether a particular event required a permit.

In 2007, the statute was amended to require permits only for groups larger than 50 persons or riders.  (LC).

Off Topic: Job Announcement for St. John's Professor

Although this is not on-topic to the blog, I thought readers would appreciate learning that St. John's University School of Law is looking to hire a legal writing professor for the 2010-11 academic year.  The announcement follows.  Please forward to anyone who might be interested.

St. John's University School of Law has a full-time position available for an Assistant Professor of Legal Writing, which will commence in August 2010.

JOB DESCRIPTION:

Starting Assistant Professors of Legal Writing are afforded renewable one-year contracts for three years, to be voted upon by the Faculty Council and Dean.  Upon successful peer and student evaluations, as well as any other pertinent considerations (scholarship and service are considered but not required), a three-year renewable contract may be offered by the Faculty Council and the Dean.  Upon completion of a three-year contract, a Legal Writing Professor may be eligible for a renewable seven-year contract.

The school anticipates that the starting annual academic year base salary for the position will be in the range of $80,000 to $85,000.

In the fall, writing professors teach Legal Analysis and Writing, a two-credit course. The responsibilities of the writing professors include creating and critiquing writing assignments emphasizing case law analysis,
statutory interpretation, and basic writing skills.

In the spring, writing professors teach Legal Analysis, Writing and Research, a two-credit course.  The responsibilities include teaching legal research, memoranda writing, appellate brief writing, and oral argument.

Summer research stipends may be available as well as some conference travel or other professional development funds.

JOB QUALIFICATIONS:

St. John's seeks individuals with strong interest and competencies in teaching legal research and writing.  Candidates should have excellent academic records (including a J.D. or its equivalent).  Teaching experience, scholarship, and practice experience as a lawyer would be viewed favorably.

APPLICATION PROCEDURE:

Applicants should submit a cover letter, curriculum vitae, the names of three references, writing sample and teaching evaluations (if available) to:
   
Professor Robert A. Ruescher
Coordinator, Legal Writing Program   
St. John's University School of Law
8000 Utopia Parkway
Jamaica, NY 11439

Applications will be accepted until the position is filled.

St. John's University School of Law is part of St. John's University, a Catholic and Vincentian institution of higher education committed to academic excellence and the pursuit of wisdom and truth.  As an Equal
Opportunity Employer, St. John's encourages applications from women and minorities.  The University is located in the New York metropolitan area and is accessible by highways and public transportation to NYC.

FURTHER INFORMATION:

Position type: The position may lead to successive long-term contracts of five or more years.

Faculty Vote: The person hired will be permitted to vote in faculty meetings.

Salary: The school anticipates paying an annual academic year base salary in the range of $80,000 to $85000. (A base salary does NOT include stipends for coaching moot court teams, teaching other courses, or teaching in summer school; nor does a base salary include conference travel or other
professional development funds.)

Students Per Semester: The person hired will teach legal writing each semester to a total number of students in the range of 36 to 45.

Submission Deadline: Applications will be accepted until the position is filled.

Gift Cards

Today, the First Department released a decision fitting for the holiday season, addressing whether a gift card constitutes a "debit card" for purposes of the Penal Law.  In People v. Stokes (1st Dept. 1/5/2010), the defendant was charged with criminal possession of two stolen gift cards.  The defendant argued that the gift cards did not qualify as debit cards because they were not issued to specific persons with a business relationship to the cards' issuers.  The court rejected this unpreserved claim.  A debit card is defined as "a card, plate or other similar device issued by a person to another person which may be used, without a personal identification number, code or similar identification number, code or similar identification, to purchase or lease property or services," but "does not include a credit card or a check, draft or similar instrument."  A gift card meets this definition because it does not require a PIN and is not a credit card, check, draft, or similar instrument.  The statute does not require a specific named holder or a business relationship between the issuer and possessor.  Accordingly, although "debit card" in common parlance denotes a banking card, a gift card nevertheless fits the statutory definition and the defendant was properly convicted.  (LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)