New York Criminal Law and Procedure

AD4 considers pair of cases dealing with definition of "physical injury"

The Fourth Department recently considered two cases that presented the same issue: whether the victims suffered "physical injury" for purposes of the defendants' assault convictions. 

In People v. Peterson (4th Dept. 3/19/2010), the two victims were police officers. One officer testified that the defendant injured the officer's elbow, which caused him to undergo medical treatment, physical therapy, and the use of anti-inflammatory medication. The injury lasted for several months, requiring the aid of an arm band to support the tendons in the arm.  The other victim testified that the defendant punched him in the eye, causing his eye to swell and contusions to develop. According to the court, these injuries exceeded mere "slaps, shoves, kicks and the like," and therefore the People provided legally sufficient evidence for the jury to conclude that the defendant committed Assault 2º (intentional causing physical injury to a police officer). 

Similarly, in People v. Newman (4th Dept. 3/19/2010), the injured police officer testified that he lost consciousness when the defendant punched him in the face. He also testified that this injury caused him to experience headaches and pain in his jaw for approximately one week after the assault. Based on the victim's account of his injuries, the court held that the defendant's conviction was supported by legally sufficient evidence.(DAL/LC)

Supremes: IAC not to advise defendants of clear immigration consequences

For years, New York attorneys have operated under the rule announced in People v. Ford: deportation is a "collateral consequence" of a criminal conviction and therefore an attorney is not under an obligation to advise his or her client about whether a guilty plea will trigger deportation proceedings.  Today, the U.S. Supreme Court upended this rule in Padilla v. Kentucky and declared that, as a matter of federal constitutional law, attorneys have a professional duty to advise their clients of immigration consequences, at least when those consequences are clear.  Even when federal law is not so clear, an attorney still has a duty to advise the client that deportation "may" result from a guilty plea.

Some interesting, preliminary notes about the decision:

• The Court noted that it has never signed on to the direct-collateral distinction.  It left for another day whether this was the appropriate way of looking at IAC issues since the "unique nature of deportation" warrant a particular rule under either case.
• Padilla's immigration consequences were easy to determine, according to the Court.  Counsel could have simply read the relevant immigration statute (and, indeed, in 2002, at the time of Padilla's plea, it was common knowledge that immigration authorities were stepping up deportation efforts).  However, the Court's rationale ignores the practical reality that, for many years prior to 9/11, immigration authorities were not aggressively enforcing the statutes as they are today.
• Although Padilla's attorney made an affirmative misrepresentation --- he basically said there would be no immigration consequences to the plea --- the Court declined the Solicitor General's invitation to fashion a rule that distinguished between affirmative misrepresentation and mere silence.  Instead, an attorney has an affirmative duty to provide clear and accurate advice about immigration consequences if federal law is clear.
• Post-conviction relief is not automatic for petitioners like Padilla.  He must now show prejudice: he "must convince the court that a decision to reject the plea bargain would have been rational under
  the circumstances."  Thus, the Court was not concerned that there would be a flood of unraveled plea bargains.  While I agree that successful IAC claims will be rare, I nevertheless predict an avalanche of attempts to undo plea bargains by defendants facing deportation or removal from the country.  This will no doubt lead to much litigation in the trial courts.

(LC)

COA affirms hate crime conviction

Yesterday, the Court of Appeals unanimously affirmed the conviction in People v. Assi (Ct. App. 3/30/2010) (Graffeo, J.), a case in which the defendant tossed molotov cocktails at a synagogue in Riverdale, a predominantly Jewish section of the Bronx.  He gave a videotaped confession to authorities; his stated purpose in trying to bomb the synagogue was to send a message to the "rich Jews in Riverdale" not to support Israel.  His sentence for arson-related charges was enhanced as a hate crime.  His appeal raised two very interesting legal issues.

The first issue involved the effective date of the Hate Crimes Act.  The Legislature provided that the new law would take effect 90 days after enactment, which was to be October 8, 2000, at 12:01 a.m.  Unfortunately for the defendant, he committed his crime during the early morning hours of that date.  His argument?  The Act could not take effect on October 8 because it was a Sunday.  Citing the General Construction Law, he argued that laws can only take effect on the workweek.  The Court of Appeals rejected this argument, noting that the Legislature has broad, historical power to cause new laws to take effect immediately or at any future date.  Moreover, the General Construction Law governs "situations that involve the calculation of a deadline, such as the filing of legal papers or other documents," not the effective date of new legislation.

Second, the defendant argued that the "victim" here was not a person---it was a building---and therefore the Hate Crimes Act could not apply.  Again, the court disagreed.  "Persons," for Penal Law purposes, include not just human beings but also corporations.  The synagogue in question, like most religious institutions, is incorporated under the Religious Corporations Law.  Thus, it qualified as a "person" for purposes of the hate crime sentencing enhancement.  Moreover, "it is self-evident that, although the target of defendant's criminal conduct was a building, the true victims were the individuals of Jewish faith who were members of the synagogue." Legislative history confirmed this interpretation.  (LC)

Sometimes pro se supplemental briefs are winners

It is not often that a pro se supplemental brief --- a brief filed by the defendant himself, raising claims not asserted in his appointed attorney's brief --- persuades a court.  After all, if the arguments were winners, appointed counsel probably would have made them, right?  In People v. Layou (4th Dept. 3/19/2010), the Fourth Department unanimously reversed a defendant's conviction based, in part, on arguments the defendant made in his pro se supplemental brief.

At the time the defendant was approached by police, he was sitting "in a vehicle at 3:40 a.m. in a parking lot located in the general vicinity of burglary that the police were investigating[.]"  Subsequently, an officer pulled into the lot behind the defendant's vehicle.  The police vehicle prevented the defendant from driving away.  Defendant later made certain statements to police, who searched the defendant and found cocaine.  At trial, the defendant was convicted of CPCS 7º, Obstructing Governmental Administration 2º, and Resisting Arrest.

The defendant argued that police "seized" his vehicle by pulling behind him in the parking lot; the defendant further argued that the police lacked reasonable suspicion for this seizure.  Therefore, the defendant concluded, the trial court erred by refusing to suppress the fruits of the seizure, including the cocaine and the defendant's statements to police.  Considering that (1) the police did not observe the defendant engage in "any conduct indicative of criminal activity" at the time of seizure; (2) the complainant reporting the burglary "did not mention that the burglars fled in a vehicle;" and (3) the police "had no other information ... connect[ing] the defendant ... with the reported burglary[,]" the court agreed with the defendant.

Additionally, the defendant's appointed attorney argued in his primary brief that the cocaine should have been suppressed because of "deficiencies in the chain of custody."  Here again, the court agreed, noting a month-long gap in the chain of custody for which the People had failed to provide an explanation.  While noting that "reasonable assurances of the identity and unchanged condition of the evidence" may revive the admissibility of evidence with gaps in the chain of custody, the court also noted that the People provided no such assurances here.  Accordingly, the Fourth Department unanimously reversed the defendant's convictions, dismissed the indictment, and remanded the matter to the Oswego County Court.  (JTR/LC)  

COA & AD1 - New Decisions

The Court of Appeals posted new decisions today:

• People v. Assi (Ct. App. 3/30/2010) (Graffeo, J.) - Hate Crimes Act
• People v. Tolentino (Ct. App. 3/30/2010) (Read, J.) - search and seizure
• People v. Zephrin (Ct. App. 3/30/2010) (Ciparick, J.) - jail time credit

Additionally, there are new decisions from the First Department.  (LC)

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)

COA, AD1, & AD3 - New Decisions

The Court of Appeals announced new decisions today:

• People v. Baker (Ct. App. 3/25/2010) (Graffeo, J.) - IAC
• People v. Carncross (Ct. App. 3/25/2010) (Lippman, C.J.) - disqualification of attorney due to conflict of interest, despite waiver

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

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

AD4 - New Decisions

The Fourth Department has posted new decisions.  (LC)

AD3 uses line of fire test regarding reckless endangerment issue

The Third Department recently considered a sufficiency of the evidence challenge to a Reckless Endangerment 1º conviction in People v. Payne (3d Dept. 3/18/2010).  The relevant facts were as follows: The defendant and his cohorts were engaged in a gunfight with an individual across the street from them.  Three of the Reckless Endangerment 1º victims were in an apartment behind the defendant's target.  A fourth reckless endangerment victim was in an apartment behind the defendant.  The People established at trial that these first four victims were within the defendant's line of fire.  However, a fifth victim was approximately 125 feet "down the street" from the defendant. 

The Third Department primarily relied on this line of fire distinction to hold that the evidence presented at trial was insufficient to support the defendant's conviction on this fifth count, but it was sufficient on the first four.  In so holding, the court  rejected the defendant's argument that the statute required a defendant to "be in close proximity to a victim" (quoting People v. Jerome, 138 A.D.2d 871, 872 (1988)). Regarding the four victims who were near the shooter:

Viewing the evidence in the light most favorable to the People, although these four victims were inside the apartments at the time, because their apartments were in or near the line of gunfire during the shootout, the evidence was legally sufficient to permit the jury to draw a reasonable inference of defendant's guilt with respect to those victims.

Regarding the fifth victim:

However, the same cannot be said of the fifth alleged victim (count 16) who, by his own testimony, was located inside an apartment approximately 125 feet down the street from defendant's location. This individual heard the gunfire and, upon emerging from the apartment, witnessed defendant and his friends on the street, all standing with their backs to him. Given this alleged victim's observation of defendant's location, and there being no evidence that this person was in or near the line of gunfire, including the fact that no bullets or bullet holes were found in the direction of his location, we agree with defendant that there is legally insufficient evidence to support a reckless endangerment conviction with respect to this particular individual. Accordingly, the conviction on count 16 of the indictment should be reversed.

Accordingly, the court reversed the defendant's Reckless Endangerment 1º conviction and modified sentence as to the fifth victim; however, the defendant's other convictions and sentence were otherwise affirmed.  (JTR/LC)

AD2 vacates conviction for UUV 2º

In People v. Franov (2d Dept. 3/16/2010), the defendant was convicted of Unauthorized Use of a Vehicle 2º, Criminal Mischief 3º, CPSP 5º, and Possession of Burglar's Tools. He was seen exiting a burglarized vehicle holding an "automobile component." 

The defendant contended that the People's evidence for UUV 2º was legally insufficient and the Appellate Division agreed. The People failed to establish that Defendant exercised dominion and control over the vehicle. Although the People provided evidence that the Defendant was present inside the vehicle, momentary presence---standing alone---is not enough to satisfy the statute. The conviction on this count was, therefore, vacated. His conviction was otherwise affirmed.  (DAL/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)

Justification and the victim's arrest record

In People v. Wilson (2d Dept. 3/9/2010), the court held that the defendant, who was convicted of Murder 2º, CPW 2º, and CPW 3º, failed to establish that he was entitled to a copy of the victim's arrest record and to introduce the record into evidence in support of his justification defense.

A defendant asserting a justification defense is permitted to admit evidence of his knowledge of prior violent acts committed by the victim. Here, the defendant failed to establish that he was aware, at the time of the shooting, of the victim's prior arrests or crimes committed involving guns. Therefore, the trial court properly denied his request. (DAL/LC)

AT2 - New Decisions

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

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

Is a missing witness under the control of the People if she may commit perjury if called to testify?

In People v. Ingram (2d Dept. 3/9/2010), the Second Department unanimously held that a party may be entitled to a missing witness charge, even where the adverse party "speculat[es] that the missing witness may have perjured herself at trial if she testified[.]"

The defendant's conviction arose from a January 2004 incident that spawned charges as diverse as robbery, burglary, and assault.  The People alleged that the defendant entered the complainant's apartment with two accomplices and robbed the complainant at gunpoint.  Before the defendant's trial, the defendant's two accomplices pleaded guilty and agreed to cooperate with the District Attorney.  During the defendant's trial, the identification of the defendant as perpetrator was at issue during the trial.  However, the People only called one of the accomplices to testify.  Significantly, "the nontestifying . . . accomplice . . . had [previously] identified two people other than the defendant as the perpetrators[.]"  At the close of trial, the defendant made an application for a missing witness charge, which the Supreme Court denied.  The defendant was later convicted at the close of trial.

In its analysis, the Second Department articulated the three elements that the defendant had to establish to obtain the missing witness charge: (1) "the missing witness could have been reasonably expected to testify favorably to the People, [(2) the missing witness] was knowledgeable about a material issue in the case, and [(3)] that [the missing witness] was in control of the People" (citing People v. Gonazalez, 68 N.Y.2d 424, 427-429 (1986)).  Noting that the third element was in controversy, the court found that the People failed to defeat the defendant's prima facie showing[, because] speculation that the missing witness may have perjured herself . . . if she testified did not, by itself, establish that she was not in the control of the People[.]"  Additionally, the court found that the Supreme Court's error in not giving the charge was not harmless, since "the proof of the defendant's identity was not overwhelming."

Accordingly, the Second Department reversed the defendant's conviction and remanded his case to Supreme Court for a new trial.  (JTR/LC)

AT1 - New Decision

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

AD2 weighs in on interpretation of Gang Assault 1º and acomplice liability

In People v. Rivera (2d Dept. 3/2/2010), the defendant alleged that he planned with two codefendants to fight and injure several persons.  According to the defendant, once he arrived at the prearranged location for the fight, the victim had already been stabbed.  The defendant later pleaded guilty to Gang Assault 1º in Supreme Court, Nassau County.  During the plea allocution, defense counsel stated that his client was "pleading guilty based upon his accessorial conduct" before and after the fight.  The People offered no objection to this statement.

On appeal, the Second Department addressed the issue of whether the Gang Assault 1º statute required the defendant's actual presence or whether the defendant's constructive presence by accomplice liability could satisfy the statute's requirements.  Looking to its own precedent as well as that from the Court of Appeals and the Fourth Department, the Second Department held that the "statute requires actual presence to the extent that the other two persons must actually be in the immediate vicinity of the crime and be capable of rendering immediate assistance tot he individual committing the crime."  Therefore, the court reasoned that the defendant "negated an essential element of the crime" during his plea allocution by stating through his counsel that he was pleading guilty based on his conduct before and after the fight but not during the fight. Therefore, the plea was vacated.  (JTR/LC)

Breaking news: AD2 disagrees with AD1 on Chief Judge's authority to transfer cases to merged/IDV courts

In People v. Fernandez (2d Dept. 3/9/2010) (Leventhal, P.J.), the Second Department held that the Integrated Domestic Violence (IDV) part of Supreme Court had jurisdiction to hear the defendant's misdemeanor case.  The court upheld the Chief Judge and Chief Administrator's authority to transfer cases to the IDV Part.  In so holding, the court parted ways with the First Department's recent decision in People v. Correa (1st Dept. 2/23/2010), which in effect declared the Bronx Criminal Division unconstitutional.

First, the court noted that Supreme Court shares concurrent jurisdiction over misdemeanors with local criminal courts.  Supreme Court also has the authority to divest local criminal courts of jurisdiction over misdemeanors.  The administrative transfer of cases from local criminal courts to superior courts is in turn authorized by the New York Constitution, which provides for the Chief Judge to establish "standards and administrative policies for general application throughout the state."  The Legislature has also vested the Chief Judge with the power to transfer cases.  The court rejected the defendant's argument that CPL § 210.05 compels a different result.  That procedural statute deals with the prosecutor's ability to invoke the jurisdiction of the superior court.  It does not affect the superior court's inherent jurisdiction and authority.

In addressing Correa, the court held,

We note that the establishment of the IDV Parts, unlike the establishment of the BCD, does not involve any purported "collapse" or "eviscerat[ion]" (id. at *2) of any other constitutionally created court. However, insofar as the First Department's holding in People v Correa can be read to support the proposition that the Chief Judge and Chief Administrative Judge are without authority to create the IDV Part, wherein the Supreme Court exercises jurisdiction over non-indicted misdemeanors, we respectfully disagree.

(LC).

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)

AD2 denies People's appeal from defendant's successful motion to suppress

In People v. Cadle (2d Dept. 3/2/2010), the People appealed from an order from Kings County Supreme Court. On March 30, 2009, that court uphold the defendant's motion to suppress physical evidence arresting officers obtained during his arrest. 

 On the date of arrest, plain clothes officers observed the defendant holding his waistband in a "high-crime" area. The officers stated that the defendant appeared to be alarmed, as if he was "afraid of something."  After viewing the officers, who were in an unmarked car, the defendant ran away. The officers pursued the defendant. During this pursuit, he discarded a gun.

The court held that the officers' pursuit of the defendant was illegal, and the defendant's actions—including discarding the gun—were directly related to this unlawful conduct.  The court did not have reasonable suspicion that the defendant was carrying a gun.  Merely touching one's waistband and acting nervous are not sufficient to justify a pursuit and stop.  The physical evidence was therefore properly suppressed.   (LC)

AD1 & AD3 - New Decisions

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

AD2 vacates due to defect in jury charge on lesser included offense

In People v. Archie (2d Dept. 3/2/2010), the Second Department unanimously vacated a conviction and sentence imposed by Supreme Court, Kings County.  On appeal from his conviction of Robbery 1º, the defendant argued that the Supreme Court committed "reversible error in its instruction to the jury regarding" the lesser included offense of larceny. 

Specifically, the defendant contended that the court's jury charge was defective in that it failed to articulate the mens rea requirement of intent.  The court's instruction stated, "The offense of larceny is complete when there has been a taking or severance of the goods from possession, and even momentary possession of another's property is sufficient."  In fact, larceny requires proof that the defendant had the "'intent to permanently deprive' the owner of his or her property" (quoting People v. Zambuto, 93 A.D.2d 873, 873 (2d Dept. 1983)).  Therefore, the Second Department reasoned, the erroneous instruction "'could have misled the jury into thinking that any withholding . . . constituted larceny'" (quoting People v. Blacknall, 63 N.Y.2d 912, 914 (1984)(emphasis in original)).  The court also noted that this error was compounded by a complete absence of a definition of "intent" in any of the jury instructions.  The error was not harmless since intent was a close question.  Therefore, the Second Department concluded that the error was not harmless, and the matter was remitted to Supreme Court for retrial. (JTR/LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)