New York Criminal Law and Procedure

CNH prosecution fails on causation and legal omission grounds

The Fourth Department recently concluded that defendant's observation of the victim using heroin in the defendant's car, removal of the victim from his car, and leaving the victim on a lawn inside a trailer park did not merit criminal liability.  Therefore, the court unanimously reversed the defendant's conviction of Criminally Negligent Homicide.

In People v. Erb (4th Dept., 2/11/2010), the defendant first met the victim on the day of her death.  During that day, the defendant and the victim used cocaine.  After driving the victim to a trailer park where the victim's mother lived, the defendant observed the victim injecting herself with heroin.  The victim did not obtain the heroin from the defendant, nor did she obtain the heroin with his assistance.  During the car ride, the victim lost consciousness, and the defendant was unable to wake her.  Since the defendant did not know the address of the victim's mother, he left the victim on a lawn at the trailer park; at that time, the victim "was breathing and making noises[.]"  Several hours later, the victim was found unconscious, and she died shortly thereafter at a hospital.

In its analysis, the court considered whether the defendant's "conduct constituted not only a failure to perceive a risk of death, but also some serious blameworthiness in the conduct that caused it."  In concluding that the defendant's conduct did not merit criminal liability, the court noted that the defendant (1) did not obtain the heroin for or inject the heroin into the victim, (2) did not place the victim in a place that made it less likely that she would obtain medical assistance, and (3) did not otherwise directly cause or contribute to her death.  Further, the court noted that the defendant did not owe a legally imposed duty to provide care for the victim.  Accordingly, the court reversed the conviction.  (JTR/LC)

Opinion and hearsay issue results in new trial

In People v. Heil (4th Dept., 2/11/2010), the Fourth Department unanimously reversed the defendant's conviction on the basis that inadmissible hearsay was errantly admitted at trial, thus prejudicing the defendant.  The defendant allegedly abused a third-grade student at the elementary school where he was employed as a teacher.  After a jury trial, the defendant was convicted of two counts of Sexual Abuse 1º and Endangering the Welfare of a Child.  

At issue was the defendant's argument that a portion of his colleague's testimony was improperly admitted as opinion testimony and hearsay.  While the court held that the witness's observations were admissible—she noted the lights in the classroom were out and the student-victim was sitting on the defendant-teacher's lap—it agreed with the defendant that the witness's testimony regarding her feelings about her observations constituted inadmissible hearsay.  The court reasoned that "[t]he testimony of the teacher with respect to how she felt after leaving defendant's classroom was not relevant, but it may have led the jury to find that, if such a distinguished teacher believed that something was amiss between defendant and the victim, then it was more likely than not the abuse actually occurred."

Because "[t]he evidence against defendant [wa]s not overwhelming and . . . the teacher's testimony [wa]s highly prejudicial," the court further held that the trial court's admission of the disputed testimony was not harmless error.  Thus, the court granted a new trial.

The claim in question was unpreserved but the Appellate Division reached the issue in the interest of justice.  (JTR/LC)

Bronx Merger ruled unconstitutional: The aftermath

Today, in People v. Correa (1st Dept. 2/23/2010), the First Department held that the Bronx Criminal Division (BCD) --- the experimental merger of Supreme Court and Criminal Court in Bronx County --- is unconstitutional.  More on the case later, but here are some preliminary thoughts on the "aftermath" of the decision.

So is that it, the merger is unconstitutional?

• We probably have not seen the last of this issue.
• Due to the magnitude of the issue involved, leave to appeal will likely be granted.  Once the case goes up to the Court of Appeals, I would imagine that Chief Judge Lippman, as one of the promulgators of the BCD enabling rules, will recuse himself. 

Doesn't this mean that tens of thousands of convictions will be overturned?

• The short answer: no.  The sky is not falling in Bronx County.
• The decision does not affect felonies, only Class A misdemeanors.
• Most misdemeanor defendants pleaded guilty and were likely satisfied with the plea agreements they reached with the People.  They received sentences like a conditional charge, time served, or a fine.  They will not be banging down the courthouse door trying to get a new trial.
• Of those defendants who do wish to use the decision as a way to overturn their convictions, most will have to overcome the problem of retroactivity.  While new decisions apply to cases in the direct appeal pipeline, most cases have been "final" for quite some time because defendants did not file  notices of appeal.  Thus, their only avenue is a 440 motion.  It is unclear whether Correa, if it is not overturned, will apply to cases on collateral review.

How does this affect cases calendared for tomorrow?

• It will not have much practical effect.
• Most of the judges in Bronx County are Criminal Court judges who are Acting JSCs. 
• The "up front" calendar parts are, to my knowledge, staffed only by Acting JSCs.  They can continue to hear both felony and misdemeanor cases.  When hearing felonies, they are wearing their AJSC hats.  When hearing misdemeanors, they are JCCs.
• The District Attorney's Office has hopefully captioned new accusatory instruments to say, "New York City Criminal Court" instead of "Bronx Supreme Court, Criminal Division."  Arraignments will continue to occur in the Criminal Court Arraignment Part.
• Trials of misdemeanors before JSCs who are not also JCCs should probably be adjourned until there is word on whether Correa will be stayed pending appeal to the Court of Appeals.

So what are the open questions?

• If the BCD is unconstitutional, the cases currently pending before it are a nullity.  Accusatory instruments will need to be refiled in the Criminal Court, unless one could argue that they were originally filed in Criminal Court and, since the order purporting to transfer them to the BCD was invalid, therefore they have "remained" in Criminal Court ever since.  If that is the case, nothing new has to happen except to amend the caption of each accusatory instrument.
• If accusatory instruments have to be refiled, what is the effect on 30.10 (limitations period) and 30.30 (prosecutorial readiness)?  Can they relate back to the original filing date if the court was unconstitutional?  (LC)

AD4 splits 3-2 over De Bour issue

In People v. Riddick, federal and local law enforcement officers in a van observed defendant with two other individuals at a street corner known for "violent gang activity."  The driver of the officers' van pulled up to the defendant, rolled down his window, and told the defendant to leave the area.  The defendant then "reached for his waistband and walked away from his companions[,]" before fleeing.  The officers pursued the defendant and recovered a discarded handgun during a subsequent search of the defendant's path.  The motion court refused to suppress the recovered handgun and defendant's statements made after the pursuit.  The defendant pleaded guilty and subsequently appealed.

In its analysis, the majority considered the relevant De Bour stages of police encounters.  Regarding the initial relevant De Bour stage, the majority held "that the police had an objective credible reason to approach [the defendant] and to request information in light of the late hour, the cold weather, the absence of other . . . traffic, and the presence of the men in a high crime area."

Regarding the second relevant De Bour stage, the majority first considered that, while the defendant's flight alone was insufficient to justify pursuit, flight in combination with "other specific circumstances indicating that the suspect may be engaged in criminal activity" may give rise to the necessary reasonable suspicion for the police to give lawful pursuit.  The majority  held that the defendant's reaching for his waistband and subsequently fleeing from police did not "establish the requisite reasonable suspicion that defendant had committed or was about to commit a crime."  In so holding, the majority noted "'that actions that are 'at all times innocuous and readily susceptible of an innocent interpretation . . . may not generate a founded suspicion of criminality'" (quoting People v. Powell, 246 A.D.2d 366, 369 (1st Dept. 1998)).  Using this rule, the majority reasoned that "absent any indication of a weapon such as the visible outline of a gun or the audible click of the magazine of a weapon, does not establish the requisite reasonable suspicion[.]" 

The majority also supported its holding by concluding that "the evidence presented at the suppression hearing was insufficient to establish that defendant knew that the individuals who approached him in the unmarked vehicles were police officers."  Preliminarily, the court considered and concluded that the defendant preserved the argument of the sufficiency of evidence at the suppression hearing.  In considering the record of the suppression hearing, the majority seemed to draw an adverse inference from the absence of testimony from the driver of the officers' van, since the driver "was in the best position to testify concerning the visibility of the police markings on his clothing[.]"  Additionally, the majority discounted as "mere speculation" the testimony of a passenger in the van asserting that the defendant knew the persons in the van were police officers.

Because the majority concluded that the handgun and defendant's subsequent statements to officers should have been suppressed, the court vacated the defendant's guilty plea and ordered the indictment to be dismissed.

The dissenters disagreed with the majority in regard to the preservation issue, noting that the defendant presented a different theory to support his sufficiency argument on appeal.  In regard to the merits of the defendant's contentions, the dissent argued that "reasonable inferences to be drawn from [the officers'] testimony support the conclusion that defendant was aware that [the individuals inside the van] were police officers."  Additionally, using a totality of the circumstances analysis, the dissent argued that the defendant's reaching for his waistband before fleeing created reasonable suspicion.   (JTR/LC)

COA & AD1 - New Decisions

The Court of Appeals has announced new decisions:

• People v. Williams (Ct. App. 2/23/2010) (Graffeo, J.) - double jeopardy issues in PRS resentencing
• People v. McDade (Ct. App. 2/23/2010) (SSM) - evidence legally sufficient for Rape

In addition, the First Department has posted new decisions, including People v. Correa, which declared the merger of Bronx Supreme Court and the New York City Criminal Court in that county to be unconstitutional.

AD4 upholds enhanced sentencing based on tardiness to sentencing

In People v. McMillon (4th Dept. 2/11/10), the defendant entered a plea agreement, which was conditioned on his agreement to appear to court on time. The defendant, however, failed to satisfy this condition. He arrived to sentencing one hour and twenty minutes late. As a result, County Court enhanced his prison sentence. The defendant appealed.

The Fourth Department affirmed.  Since the defendant failed to abide by a term of his plea agreement, enhancement was proper.  The court noted that the court had included included this provision in the agreement because the defendant had arrived late for other court appearances.  (DAL/LC)

AD2 addresses Grand Jury defects in recent decision

In People v. Walton (2d Dept. 2/9/2010), the Second Department unanimously held that an evidentiary defect is not fatal to an indictment where 1) the prosecutor instructs the grand jury to disregard the inadmissible evidence cured the evidentiary defect, and 2) where the remaining evidence is sufficient to sustain the indictment.  Additionally, the court held that a prosecutor need not instruct a grand jury "regarding the effect of intoxication on the culpable mental state of depraved indifference" in a DWI homicide.  Finally, the court held that a conflation of Vehicle and Traffic Law (VTL) and Penal Law (PL) mental state terms were "mere mistakes" not requiring dismissal of the indictment. 

The case arose out of the following alleged facts.  The defendant was intoxicated and racing on the Southern State Parkway at speeds up to and beyond 109 mph.  At some time during the race, the defendant lost control of his car and struck the center divider.  The impact caused a passenger in the defendant's car to be ejected and sustain fatal injuries.

Before the Grand Jury, a forensic toxicologist testified regarding the the effects of marijuana use on humans.  However, the prosecutor later instructed the grand jury to disregard the marijuana-related evidence and redacted information relating to marijuana from documents in evidence, since the same toxicologist was unable to testify that the defendant was, in fact, under the influence of marijuana.  The Grand Jury subsequently indicted the defendant for Murder 2º, Manslaughter 2º, and Reckless Driving.  However, the Supreme Court, Nassau County, later dismissed the indictment, citing defects in the Grand Jury proceeding, including the introduction of the marijuana-related evidence at the grand jury, in addition to the prosecutor's "failure to instruct the grand jury regarding the effect of intoxication on the culpable mental state of depraved indifference[.]"  Additionally, the trial court cited as error the prosecutor's incorrect equating of the PL term "recklessly" with the VTL term "reckless."

On the People's appeal, the Second Department first noted that the standard for dismissal of an indictment is "very precise and very high [and is] limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury."  Accordingly, the court noted that "the submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment."  Additionally, the court noted that, once a prosecutor instructs a grand jury to disregard inadmissible evidence, "the grand jury is presumed to have followed the prosecutor's curative instructions, dispelling any prejudice to the defendant."   Combining these standards, the court concluded that the indictment should not have been dismissed merely on the basis of inadmissible marijuana evidence, since the prosecutor gave curative instructions to the Grand Jury, which that body is presumed to have followed.

The court also considered the prosecutor's failure to instruct the Grand Jury regarding the effect of intoxication on the mental state of depraved indifference, noting that "a prosecutor is not required to present mitigating defenses to a grand jury."  The court further reasoned that intoxication was "like a mitigating defense," as it "reduced the gravity of the offense by negativing an element."  At best, a successful intoxication defense would result in a conviction for Manslaughter 2º, a crime for which the defendant was also indicted; therefore, in this context intoxication was a mere mitigation defense and the People were not required to charge the Grand Jury on it.

In regard to the prosecutor's other instructions to the grand jury, the court noted that prosecutors' instructions to the Grand Jury are sufficient if the instructions provide enough information to enable intelligent decision of (1) whether a crime has been committed, and (2) whether legally sufficient evidence exists to establish the material elements of the crime.  Applying this standard, the court concluded that, since the prosecutor tracked the relevant language of the VTL, his incorrect instructions regarding the word "recklessly" were "superfluous" and "mere mistake."

Thus, the court found that the defects in the Grand Jury proceeding were not prejudicial to the "ultimate decision" of the grand jury and that, therefore, dismissal of the indictment was not warranted.  Accordingly, the court reversed the order of the trial court and reinstated the indictment.  (JTR/LC)

Man 1º properly not submitted as lesser included offense of Murder 2º on these facts

In People v. Sostre (2d Dept. 2/9/2010), the Second Department unanimously held that Supreme Court did not err in refusing to charge the jury with Manslaughter 1º as a lesser included offense of Murder 2º.  During the trial, the jury heard testimony that "the defendant, at a distance of two or three feet, fired four shots into [the victim]'s body, two of them into his chest, piercing the heart and liver."  The jury also heard testimony "that the defendant continued to fire at [the victim] after he had fallen to the ground."  

Even after viewing the evidence in the light most favorable to the defendant, the court found "that there was no reasonable view of the evidence to support a finding that the defendant intended to cause serious physical injury to [the victim] rather than kill him."  Accordingly, the court upheld the defendant's conviction of Murder 2º.  (JTR/LC)

What are "business records" for Falsifying Business Records 1º?

Suppose a medical clinic employs "runners" to locate automobile accident victims and take them back to the clinic.  Then, suppose a physician at the clinic purports to treat accident victims at the clinic in order to submit fraudulent claims to the victims' no-fault insurance carriers.  Considering that the insurance claims were submitted by a third party (the physician) to the insurance company, are these forms "business records" for the purposes of Falsifying Business Records 1º?  Yesterday, the Court of Appeals unanimously answered "yes" in an opinion authored by Judge Ciparick in People v. Kisina (Ct. App., 2/18/2010) (7-0).

In 2003, Attorney General Eliot Spitzer investigated IK Medical P.C., a medical clinic in Queens, for insurance fraud "and other related crimes."  The AG's office alleged that the clinic had engaged in a scheme, similar to the one articulated at the beginning of the post, to access the $50,000 policies of each of the victims.  Subsequently, the AG obtained an indictment against the defendant for Engaging in a Scheme to Defraud 1º, Insurance Fraud 3º, and Falsifying Business Records 1º.

Before trial, the People and the defendant stipulated that the forms the defendant submitted to the insurance carrier were "intended to evidence [the carrier's] 'obligation to pay the attending physician or other provider of health service[.]'"  Additionally, the parties stipulated that these forms became part of the insurance carrier's "permanent business records."  At trial, the People "offered evidence of a pattern of fraud by the clinic" in which the defendant was allegedly involved.  This evidence included testimony that the defendant performed far fewer procedures than she claimed in the insurance forms at issue.  Subsequently, a jury found the defendant guilty of Insurance Fraud 3º and Falsifying Business Records 1º. 

On appeal, the Court of Appeals addressed the defendant's argument that the disputed insurance claim forms were not "'business records' because they d[id] not reflect the 'condition' or 'activity' of the recipient enterprise[.]"  Rather, the argument went, the forms "falsely evidence[d the defendant's] activities and the condition of her patients."  Applying a plain meaning analysis of the statute, the Court noted that "[a] 'business record' is 'any writing or article . . . kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity'."  The Court also applied precedent that "rejected the 'insider/outsider distinction' for the purpose of defining a false business record."  Thus, the Court reasoned that "'outsiders' or 'third parties' not employed by . . . the recipient enterprise [were not] immune from prosecution under th[e] statute."  

Interestingly, the Court also addressed a case, People v. Papatonis, 243 A.D.2d 898 (3d Dept. 2009), cited by the defendant to support her insider/outsider distinction.  In Papatonis, the Third Department "held that misrepresentations on an employment application, wherein the defendant falsely denied having been convicted of a crime, did not fall within the ambit of the statute."  The Court of Appeals rather unconvincingly distinguished Papatonis, reasoning the records in that case "did not, as here, relate to any rights or obligations on the part of the recipient agency" (apparently, the employment application did not relate to the agency's right to employ the applicant or to the agency's obligation to compensate the applicant for services rendered).  (JTR/LC)

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)

AT1 - New Decisions

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

COA, AD1, & AD3 - New Decisions

The Court of Appeals has posted new decisions:

• People v. Kisina (Ct. App. 2/18/2010) (Ciparick, J.) - fraudulent medical records can constitute "business records" for purposes of Falsifying Business Records 1º.
• People v. Brown (Ct. App. 2/18/2010) (Lippman, C.J.) - hearing necessary to determine if plea involuntary because defendant claimed he was pressured into accepting it so he could receive a furlough to visit a sick child in the hospital
• People v. Rivera (Ct. App. 2/18/2010) (SSM) - coram nobis

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

AD2 orders new trial due to lack of proper limiting Molineux instructions

In People v. Mendez (2d Dept. 2/9/2010), the Second Department unanimously held that a trial court must provide "proper limiting instructions" where "[e]vidence of uncharged crimes [was] properly . . . admitted 'as relevant background material'" pursuant to an exception of the Molineux rule (quoting People v. Laverpool (2d Dept., 6/10/2008)). According to Laverpool, such relevant background material satisfies the Molineux exception of motive and intent where the evidence shows: (1) an understanding of the defendant's relationship with the complaint, (2) an explanation of the issuance of an order of protection, and (3) evidence of the defendant's motive and intent in the commission of the charged crime. 

While the Appellate Division did not refer to the specific jury charges in its opinion, the court did conclude that there was a "significant probability that the erroneous instructions contributed to the defendant's conviction."  Thus, the court reversed the court below and remanded the case for a new trial.  (JTR/LC)

AD4 modifies criminal mischief conviction over lack of evidence on damage amount

In People v. Quigley, the defendant damaged church property.  Initially he was charged and convicted, after a bench trial, of Criminal Mischief 3º.  The Fourth Department agreed with the defendant's argument that his conviction was not supported by legally sufficient evidence. In order to prove that the defendant was guilty of the crime charged, the People needed to establish the value of the damage defendant caused to the church exceeded $250. The People only offered hearsay testimony on this element.  The Court held this was insufficient to secure a conviction of criminal mischief in the third degree. On the other hand, Criminal Mischief 4º was proved beyond a reasonable doubt since the lesser crime does require proof of the amount of damage caused.  The People presented evidence that established that the defendant was found on a ladder, against the church, on the night in question. This evidence coupled with the damaged copper gutter found next to the ladder was sufficient to establish that the defendant intentionally damaged the church property. Therefore, the Court reduced the conviction to Criminal Mischief 4º and remanded for re-sentencing.  (DAL/LC)

AT2 - New Decisions

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

New COA case on witness bolstering and procedure for responding to jury notes

In People v. Ochoa (Ct. App. 2/16/2010) (PIgott, J.) (4-3) and People v. Figueroa (Ct. App. 2/16/2010) (Pigott, J.) (4-3), the defendants were tried jointly for a robbery.  The People alleged that the defendants forcibly stole a video game console from the complainant while the three of them and a fourth person were smoking crack-cocaine.  There were two issues on appeal: (1) whether the People improperly rehabilitated two impeached witnesses (the complainant and the fourth individual); and (2) whether Supreme Court properly responded to a note from the jury foreperson.

With respect to the witness rehabilitation issue, the complainant admitted that his testimony before the Grand Jury was inconsistent on several key points.  He explained that he was "confused" by the questions before the Grand Jury.  The prosecutor was allowed to ask the witness whether he was "confused" by other questions that concerned other aspects of the crime.  The other witness admitted to inconsistencies between her written statement to the police and her trial testimony.  The prosecutor was permitted to clarify whether the other information in the statement was correct.

The court found that both inquiries on redirect examination were proper because they explained or clarified the inconsistencies that were elicited on cross-examination.   The dissent responded, "This was not a case of clarifying or explaining a statement only partially examined by opposing counsel. This was an attempt to recast the entire testimony of two witnesses who had given many versions of the crime and surrounding events."

On balance, I think the majority got this issue right, although the case illustrates that one party's "clarification" is another's "bolstering."  A party attempting to rehabilitate a witness should avoid presenting the questions as a prior consistent statement (i.e., there were plenty of other more important statements that were not inconsistent and therefore the witness testified truthfully) but instead as clarification as to which of the prior statements were incorrect.

Regarding the second issue, after several days of deliberation, readbacks, and deadlocks, the jury announced it had reached a verdict.  The jury foreperson also sent a note to the judge stating that he had concerns about reading the verdict.  The court conducted an ex parte interview of the juror, during which the court explained how the verdict would be taken and the limited role the foreperson would play.  The juror "seemed relieved and said, 'Oh, okay, fine.'"  After the meeting, the court informed the parties of what had transpired; neither objected to the procedure.  The verdict was taken and the foreperson agreed that the verdict was his.

The Court of Appeals noted that it would have been a better practice for the trial court to have followed the procedures in CPL § 310.30: provide notice of the note and an opportunity to be heard to the parties before  it conducted its inquiry of the juror.  Nevertheless, the court found that the trial court did not abuse its discretion because the note was ambiguous and the subsequent conversation indicated that the juror was only as to the manner in which the verdict would be read.  Therefore, the inquiry was ministerial.  Since the parties could not have "provided a meaningful contribution" to the inquiry, their input was not required. 

The dissent, however, contended that the majority erred in considering the events after-the-fact (the substance of the conversation and the juror's response to the post-verdict polling) as evidence that the inquiry was ministerial. 

On this issue, I think the dissent has the better argument.  The only on-point case cited by the majority was People v. Hameed, 88 N.Y.2d 232 (1996).  But in that case the trial judge knew the inquiry would be ministerial because the juror's initial inquiry indicated that she wanted to know if she could attend church during sequestration.  Here, on the other hand, the juror's note was, to use the majority's description, "ambiguous."  This is precisely why the notice-and-be-heard provisions are so important.  What if the juror had said, "Well, I'm not comfortable reading the verdict because I was bullied into agreeing to it ..."?  I suppose the court could have told the juror to wait outside while he or she consulted with the parties, but by then the damage may have been irreparable.  The defense would have lost the opportunity to observe the initial questioning and the juror's reactions.  (LC)

SCIs and joinder of "same or similar in law" offenses

The defendant in People v. Pierce (Ct. App. 2/16/2010) (Graffeo, J.) was charged in two separate felony complaints with (1) Grand Larceny 4º for tricking someone into giving him a bank card, which the defendant used to withdraw money from the victim's bank account; and (2) Criminal Possession of Stolen Property 4º for driving a stolen car.  The defendant was held for action of the Grand Jury on each felony complaint.  Nevertheless, the parties negotiated a plea bargain that spared the defendant from consecutive sentences and enabled him to plead guilty to Grand Larceny 4º and CPSP 3º and receive a concurrent sentence. 

The defendant purported to waive indictment and plead guilty to a SCI charging the two felony offenses.  On appeal, he claimed his waiver was invalid under both the CPL and the state Constitution.

First, he asserted his plea violated the rule in People v. Zanghi, 79 N.Y.2d 815 (1991), which the defendant claimed prohibited inclusion in an SCI of an offense higher in grade than the highest crime in the underlying felony complaint.  The court rejected this interpretation of Zanghi, finding instead that the case stood for the proposition that the SCI must include, at a minimum, one of the offenses charged in the felony accusatory instrument.  Here, the SCI satisfied this rule because it charged the defendant with Grand Larceny 4º, which was one of the charges in one of the felony complaints.

Second, the defendant claimed that the CPSP 3º charge was improperly joined under CPL § 200.20.  Since the crime did not occur in the same criminal transaction, the People could not rely on CPL § 200.20(2)(a).  Instead, they tried to utilize section (c) of that statute, which permits joinder of "offenses [that] are defined by the same or similar statutory provisions and consequently are the same or similar in law."  Here, they argued that the two offenses, although based on separate incidents, were both theft-related and thus properly joinable.

The court rejected this argument:

Viewed in the broadest sense, both offenses involve misappropriated property — but that is where any similarity ends. The crimes do not have comparable elements and the essential nature of the criminal conduct is quite distinct, as is evident from the underlying allegations.

Finding reversal was required on statutory grounds, the court declined to address the defendant's constitutional challenge to the joinder of offenses of higher grade than those present in the accusatory instrument.  (LC)

Failure to complete diversion program: How much due process is required?

In People v. Fiammegta (Ct. App. 2/16/2010) (Read, J.), the defendant pleaded guilty to Burglary 2º and entered the Brooklyn DA's Drug Treatment Alternative-to-Prison Program.  The People agreed to dismiss the charge if the defendant completed an 18-24 month residential drug treatment program and aftercare.  The judge informed the defendant that if he did not complete the program, he would be sentenced to 8 years.

Relevant to the appeal, the defendant was accused by the treatment facility of theft.  The defendant denied the allegations and demanded a hearing; the court denied the request, noting that, in any event, the program did not want him back.  After an adjournment, defense counsel reported that the facility had changed its mind, determined the defendant had been setup, and was now willing to have him back in the program.  The prosecutor countered that DTAP, the statewide program that was overseeing the treatment, did not want him to return.   In addition, the prosecutor noted that his office would object to any further attempts at treatment.  The case was then adjourned for the court to speak with the director of the program.  The court reported that the director had told him that he still believed the defendant was responsible for the theft and the program did not want him return.  The court then sentenced the defendant to a prison term.

The Court held that the standard from People v. Outley, 80 N.Y.2d 702 (1993), controls the amount of due process required before a defendant may be sentenced for violating the conditions of a drug treatment diversion program.  The court rejected the defendant's argument that a full-blown evidentiary hearing—such as the type of hearing required if the People move to revoke a defendant's probation—is required.  The court held:

Analogizing to Outley, the condition of a DTAP plea is that the defendant satisfactorily finish a drug treatment program. Accordingly, when a program discharges a defendant for misconduct, the court must carry out an inquiry of sufficient depth to satisfy itself that there was a legitimate basis for the program's decision, and must explain, on the record, the nature of its inquiry, its conclusions, and the basis for them.

Here, Supreme Court was not required to hold a hearing.  However, "the judge should have considered defendant's argument that he was kicked out of the program based on thin evidence of wrongdoing after inadequate investigation; and he should have allowed defendant to submit letters and testimony or affidavits from his mother and girlfriend about the money they claimed to have sent him."  If after sufficient inquiry, the court believed the program did not have a legitimate basis for excluding the defendant and the People were unwilling to consider the defendant for a new program, the court could have offered the defendant an opportunity to withdraw his guilty plea.  (LC)

COA & AD1 - New Decisions

The Court of Appeals has announced new decisions:

• People v. Fiammegta (Ct. App. 2/16/2010 (Read, J.) - reversal because Supreme Court did not consider evidence that the defendant was kicked out of a drug treatment program on thin evidence
• People v. Ochoa (Ct. App. 2/16/2010) (Pigott, J.) (4-3) - improper bolstering and response to juror's note
• People v. Pierce (Ct. App. 2/16/2010) (Graffeo, J.) - plea to SCI vacated because of defect in waiver of right to indictment
• People v. Edwards (Ct. App. 2/16/2010) (SSM) - Appellate Division reversed on suppression grounds; police were justified in prolonging traffic stop

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

AD2 reverses organized crime-related conviction on weight of the evidence grounds

Students in my New York Criminal Practice course at St. John's read Matter of Polito v. Walsh, 8 N.Y.3d 683 (2007), one of the key dual sovereignty cases in the double jeopardy area.  Recently, AD2 added a postscript to the Polito prosecution when it decided People v. Fortunato (2d Dept. 2/9/2010).

The case was an organized crime-related prosecution that originally started in federal court, where the defendants were prosecuted for RICO and VCAR (Violent Crimes in Aid of Racketeering Act) crimes arising out of a murder and attempted murder in Brooklyn.  The Second Circuit reversed the convictions of Polito and Fortunato because there was insufficient evidence that the crimes were committed in aid of racketeering; there was evidence they were over some personal debts.  New York courts subsequently held that a state court prosecution was permissible because of the exception in CPL § 40.20(2)(f) ("One of the offenses consists of a violation of a statutory provision of another jurisdiction, which offense has been prosecuted in such other jurisdiction and has there been terminated by a court order expressly founded upon insufficiency of evidence to establish some element of such offense which is not an element of the other offense, defined by the laws of this state.").

Fortunato and Polito's state court prosecutions then went to trial in Kings County.  Polito was acquitted by a jury, but Fortunato was found guilty by the court.  The Second Department reversed Fortunato's conviction because the verdict was against the weight of the evidence. 

The People's theory at trial was that Polito was the mastermind and the defendant aided and abetted the crime by providing Polito with one of the guns and agreeing to pay for the murders. 

The only evidence of payment came from a cooperating co-defendant, who said that Polito had told him the defendant would pay for the murders.  However, that same witness had allocuted in federal court that Polito was the one who had financed the crimes.  Another cooperating co-defendant had no idea that the defendant had agreed to pay for the crime.  Moreover, there was no evidence that the defendant was ever asked for money after the killing.

Regarding the gun, the only evidence came from a cooperating co-defendant, whose testimony was "inconsistent and confusing."  Moreover, there was no evidence the defendant was aware that the bag he handed to a co-defendant contained a gun or, if he was so aware, that the gun was to be used for the crimes in question.

The only other evidence indicated that the defendant was surprised by the shootings and fled.  The court dismissed the evidence of flight and coverup as consistent with an innocent person witnessing a violent shooting involving organized crime figures.  (LC)

COA decides curious 30.30 case

People v. Price (Ct. App. 2/11/2010) concerns the catch-all proviso in CPL § 30.30, which excludes time periods in which there are "exceptional circumstances."  In Price, the defendant was charged with Attempted Disseminating Indecent Material to Minors 1º based on an Internet chat with an undercover officer, posing as a 14-year-old girl.  While sexually explicit, the communications did not involve any exchange of sexual images.  The defendant was arraigned on the charges in a Suffolk County local criminal court.

Meanwhile, the Second Department had reversed a defendant's conviction under a similar set of facts.  That court held that a defendant could not be convicted for the crime in question unless there was a transmission of images.  The People obtained leave to appeal that case to the Court of Appeals.

Back to Price.  The Suffolk County District Attorney's Office, believing it could not obtain an indictment in light of AD2's ruling in the other case, decided against proceeding with an indictment against the defendant in Price.  Instead, it decided to wait until the Court of Appeals issued its ruling in the AD2 case on appeal.  And, indeed, the People's decision was fortuitous: The Court of Appeals reversed the AD2 in People v. Kozlow, 8 N.Y.3d 544 (2007) and held that a defendant could be convicted of the crime without transmitting images. 

The People then obtained an indictment in Price.  Meanwhile, more than six months had elapsed since the felony complaint was filed.  Accordingly, the defendant filed a motion to dismiss on CPL § 30.30 grounds.  Superior Court granted the motion and the Second Department affirmed.

The Court of Appeals likewise affirmed, holding that the timing of events with the Kozlow appeal did not amount to "exceptional circumstances" in Price. Chief Judge Lippman wrote:

Application of the exclusion under these circumstances would permit a scenario in which a criminal complaint could pend for an open-ended and potentially lengthy period on the mere prospect that a change in the law might render it again viable. As we stated in People v Cortes (80 NY2d 201 [1992]), '[l]egal rulings are routine events in criminal trials. The fact that a particular ruling may be erroneous does not by itself transform that ruling into an 'exceptional circumstance' (id. at 211-212).

The court recognized the unusual nature of the case and that the "People here were not in control of the ultimate circumstance that prevented them from being unable to proceed to trial --- the erroneous Appellate Division decision in Kozlow."  Nevertheless, it posited a number of alternatives that the People could have pursued, none of which I find particularly satisfying:

• seek a continuance from the local criminal court rather than litigate "exceptional circumstances" after the fact.  However, this would not have affected the substance of the court's § 30.30 analysis, only its timing.  The motion court would have still been bound to apply § 30.30 once six months had elapsed. 

• dismiss the felony complaint and refile if and when AD2 was reversed.  The court acknowledged in footnote one that this runs contrary to the plain language of People v. Osgood, 52 N.Y.2d 37 (1980), which held that when a felony complaint is dismissed, a subsequent complaint relating to the same offense relates back, for CPL § 30.30 purposes, to the date the original complaint was filed.  The court's response is essentially that Osgood could be confined to its facts and the People, in Price, could have "litigated [the issue] through the appellate process."  But Osgood's language is quite explicit, as is the CPL on the relation back of accusatory instruments.  Moreover, the court in footnote one never says that Osgood is bad law, only that it might not have applied in Price.  In fairness, the People were entitled to rely on Osgood and, for that matter, AD2's ruling in Kozlow.       Moreover, dismissal of the complaint would not have provided any real certainty to Price, who would have still been on notice that his case was not truly "over" just because the felony complaint had been dismissed.

Of course, part of the dissatisfaction with Price is that we know he should have been prosecuted because, in retrospect, AD2's decision in Kozlow was incorrect.  What I think the Court of Appeals was trying to do was to look at the case as if it had not reversed Kozlow.  Then, Price would have been pending for many months for naught and a defendant would have unnecessarily had his life inconvenienced by pending criminal charges.

All-in-all, Price is a troubling development in the CPL § 30.30 area and might warrant (gasp) some legislative tinkering with CPL § 30.30, perhaps adding a new exception for cases where the People certify, in good faith, that they are delaying prosecution in order to wait for a key appellate decision that is likely to affect whether they will prosecute the case at all.  (LC)

AD4 - New Decisions

The Fourth Department has posted new decisions.  (LC)

COA clarifies fraud element of Offering a False Instrument for Filing 1º

In People v. Taylor (Ct. App. 2/11/2010), the defendants---personal injury attorneys---were alleged to have participated in a scheme to defraud no-fault insurance carriers by "having illegally solicited automobile accident victims exaggerate their injuries, receive excessive medical treatment, and file inflated claims."  Among other crimes, they were charged with Offering a False Instrument for Filing 1º.  The false instruments in question were the attorneys' retainer statements that they filed with the Office of Court Administration.  The Appellate Division had reversed because there was no evidence that OCA had relied, to its detriment, on the filings.

The Court of Appeals reversed the Appellate Division and reinstated the convictions.  The plain terms of the statute do not require that the agency receiving the false instruments be "misled to its detriment."  "'Intent to defraud' refers only to a defendant's state of mind in acting with a conscious aim and objective to defraud."  (LC)

COA, AD1, & AD3 - New Decisions

There are new decisions from the Court of Appeals:

• People v. Taylor (Ct. App. 2/11/2010) (7-0) - reinstating conviction of attorneys for filing false retainer statements with OCA
• People v. Price (Ct. App. 2/11/2010) (7-0) (Lippman, C.J.) - "exceptional circumstances" exception to CPL § 30.30 does not apply to facts of case
• People v. Edwards (Ct. App. 2/11/2010 (SSM) - missing witness instruction
• People v. Zarate (Ct. App. 2/11/2010) (SSM) - companion case to Price
• People v. Luciere (Ct. App. 2/11/2010) (SSM) - companion case to Price
• People v. Cozzani (Ct. App. 2/11/2010) (SSM) - companion case to Price
• People v. Francois (Ct. App. 2/11/2010) (SSM) - record evidence supported AD's search and seizure decision

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

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)