New York Criminal Law and Procedure

Reversal for right to public trial violation

In a very brief opinion, the First Department reversed the conviction in People v. Gray (1st Dept. 8/18/2011) because the trial court ordered the complete closure of the courtroom during the undercover's testimony.  The Defendant requested that certain family members be allowed to stay, but the court summarily rejected the request without comment.  Of particular concern to the First Department was that "the record does not otherwise show that the court considered whether there existed any reasonable accommodations that would have protected the public nature of the criminal proceedings."  The court reiterated that "trial courts are required to consider alternatives to closure even when they are not offered by the parties."  

The lesson for trial courts and for prosecutors is to make a proper record that explicitly considers alternatives to complete closure.  (LC)

Columbia Law launches "collateral consequences calculator"

The Supreme Court's recent decision in Padilla v. Kentucky requires defense attorneys to advise their clients on the immigration consequences of pleading guilty.  To help attorneys advise their clients, Columbia Law School has created a web-based "collateral consequences calculator."  A user simply selects a Penal Law charge and the website returns a report about immigration and public housing consequences for a conviction of that crime. 

I played around with the calculator a bit this morning.  It seems like a valuable tool, although I still prefer the simple and easy-to-use reference charts from the New York State Defenders Association's Immigrant Defense Project.  Although the Columbia site adds public housing information, no appellate court has yet to hold that attorneys have a duty to advise clients that their guilty pleas may impact their ability to obtain NYCHA housing and, given the Court of Appeals' recent decision on collateral consequences, I don't see it happening anytime soon.  In any event, regardless of whether it is constitutionally required or not, it is important to know that certain convictions can trigger almost certain eviction from public housing (however, there are escape-valve provisions that allow public housing residents to plead for an exception to the rule).  For some clients, structuring the right guilty plea may enable them to avoid becoming homeless.  (LC)

Defendant fails to make sufficient showing for suppression hearing

In People v. Scully (Ct. App. 5/6/2010), a unanimous Court of Appeals affirmed the defendant's conviction, rejecting his contention that the motion court erred in denying a hearing on his suppression motion. 

The facts were simple: Utica Police were executing a drug-related search warrant at a residence.  The warrant was for the second floor of the premises as well as two John Does and "any other person who may be found to have such property [drugs, paraphernalia, and guns] in his possession or under his control at the time of the execution of said warrant."  The police went to the first floor entrance where they heard the defendant coming down the stairs.  He asked what they wanted and the plainclothes police replied, "one," meaning a $20 rock of crack-cocaine.  The defendant opened the door and he was detained and searched.  The police found a gun, ammunition, and money.

The defendant's motion papers alleged only that the search warrant was issued without probable cause.  However, his papers did not demonstrate how or why there was a lack of probable cause.  As such, the allegations were pure legal conclusions and insufficient to entitle the defendant to a hearing.

This case serves as an important reminder to defense counsel to supplement their omnibus motion papers with specific facts that, if found to be true at a hearing and when applied to the law, yield the legal remedy they seek.  In other words, every legal conclusion must be supported by facts. 

Another issue in the case was standing.  After the police arrested the defendant, they went upstairs and searched the second floor residence.  Various drugs and drug paraphernalia were found there.  The defendant did not allege sufficient facts to show that he had standing to challenge the search.  Again, he alleged only that the warrant lacked probable cause.  (LC)

Conviction for Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree Reversed; Insufficient Evidence of Knowledge

The Appellate Term, Second Department, reversed a defendant's conviction for Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree in People v. Outram (App. Term. 2d Dept. 1/30/2009).  The court held that the People had introduced insufficient evidence to establish that the defendant knew that his driver's license had been suspended:

[T]he People sought to establish that the suspension orders were properly mailed to defendant, so that they could then invoke the presumption that the orders were received by defendant (see e.g. Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). However, the testimony on behalf of the People by a New York City employee of the DMV, demonstrated that said employee had no personal knowledge whatsoever of the procedures of the Albany DMV office which handled the mailing of suspension orders. Consequently, the People failed to provide sufficient proof regarding the DMV's standard office practice or procedure designed to ensure that the suspension orders were properly addressed and mailed (see Residential Holding Corp. at 680), did not establish that the suspension orders were mailed to defendant, and failed to prove that defendant knew, or had reason to know, that his license was suspended, as required by Vehicle and Traffic Law § 511(1)(a).

From this short description, it looks like the prosecutor was caught off-guard by an unprepared witness.  Lesson learned?  An attorney should meet with all witnesses, even so-called "professional" ones like DMV representatives, and go over the questions that will be asked.  There is nothing unethical about "witness preparation," provided the attorney does not script or coerce the witness.  (LC)

Inventory Searches: The Factual Predicate

I have taught Criminal Procedure—the law of search and seizure—several times.  It is a fascinating subject.  I find the law of inventory searches particularly interesting.  Unfortunately, I have observed many cases where key evidence was suppressed because the prosecutor did not properly elicit the requisite factual predicate for the search itself.  People v. Farquharson (Sup. Ct. Bronx Co. 1/26/2009) is one such case.  In a written decision posted this week, Justice Dawson suppressed evidence recovered during a purported inventory search.

The case was a simple DWI.  Highway unit officers observed the defendant driving erratically.  When they pulled him over, they detected the usual signs of intoxication and observed marijuana in plain view.  They arrested the defendant.  During a subsequent search of the vehicle, the officers discovered additional drugs.

The sole testimony regarding the inventory procedure was summarized by the court:

According to [Police Officer] Wiley, the standard police procedure in such a situation is to take custody of the vehicle by towing it and to perform an inventory search of the vehicle. Id. Wiley testified that an inventory search of the vehicle is done to make sure there are no valuables left unsecured in the vehicle for which Wiley would be responsible. Id. Wiley recovered the two bags of marihuana from the vehicle and then, during an alleged inventory search of the Pathfinder, he seized an additional six bags of marihuana from a radio box on the rear seat. Id. There was no other testimony regarding police procedures for inventory searches, or whether they were followed in this case. After the marihuana was recovered, Vickery testified that the police continued to search the car for more drugs or weapons.

The court suppressed the second set of drugs because the People had not established that the police were conducting a proper inventory search:

In People v. Johnson, 1 NY3d 252 (2003), the Court of Appeals held that the People had the "burden of establishing a valid inventory search" at a suppression hearing, and that the purposes of an inventory search were threefold: "to protect the property of the defendant, to protect the police against any claim of lost property, and to protect police personnel from any dangerous instruments." Id. at 256 (citation omitted). To meet that burden, the People should produce evidence demonstrating: (1) the existence of a departmental policy regarding inventory searches, (2) that the policy is "rationally designed to meet the objectives that justify inventory searches," and (3) that the particular search was conducted properly and in compliance with established procedures. See id.Id. The Court concludes that the People did not meet their burden of establishing the existence of any of the foregoing. Indeed, Vickery rather candidly testified that after the marihuana was recovered, "we searched the vehicle more for any kind of drugs of weapons[]" and "that's why the car was searched more." See, Hearing Minutes at p. 40. This is exactly the type of "general rummaging . . . to discover incriminating evidence" that Johnson prohibits. See Johnson, 1 NY3d at 256 (internal quotation marks and citation omitted); see also People v. Gomez, 50 AD3d 407, 408 (1st Dept.) (suppressing physical evidence recovered pursuant to alleged inventory search because the People failed to establish compliance with Johnson), lv. to appeal granted, 2008 NY Slip Op. 74219(U) (June 10, 2008). Further, the "hallmark" of a real inventory search is the creation of a meaningful inventory list of the vehicle's contents.

In order to meet the Johnson standard, prosecutors should:

• Introduce into evidence the relevant police department's inventory search procedure.  The NYPD's is contained in its Patrol Guide.  A certified copy of the section on inventory searches should be introduced into evidence as People's Exhibit #1.  It is the most important piece of evidence at a suppression hearing where the People intend to rely on the inventory search exception.
• Determine whether the police followed the procedure.  If the officers substantially deviated from the policy, it is likely the evidence will be suppressed.  However, minor deviations are not necessarily going to result in suppression.  I argued, for example, in People v. Moya that the police were justified in doing an on-the-scene search, rather than at the impound lot, because they had already discovered at least one drug trap and the car was blocking a bus stop and needed to be moved immediately.  There was insufficient time to wait for a tow truck.  For the officer's safety, he was justified in conducting the inventory search on the scene.  The First Department upheld the search.
• Elicit from the police officer how he or she followed the procedure.  Have the officer discuss the training he received at the Police Academy concerning inventory searches.
• Elicit from the police officer why he or she conducted the search. 
• Introduce into evidence the inventory form that was created.  The NYPD uses a special voucher for vehicles.  It must be introduced into evidence.  If it was not created, the case will likely fall outside of the inventory search exception. 

In short, this is not an area in the police officer's direct examination that can be quickly glossed over.

In addition, police departments must ensure that their officers receive training on:

• the reasons for the inventory search exception (officer safety, safeguarding valuables, protecting against false claims of loss);
• the importance of conducting a thorough search.  After all, the purpose is not just to find weapons but also to locate valuables that should be inventoried;  and
• how to fill out the department's inventory form.

(LC)

Does admission of a cell phone include admission of its call history logs?

This week, the Third Department decided People v. Francis (3d Dept. 1/22/2009), a drug case out of Rensselaer County.  The issue was the propriety of the prosecutor's summation, in which he or she referenced various "call history" logs in a cell phone.  The cell phone had been admitted into evidence, but not its call history logs.  The Third Department concluded that the prosecutor's summation was improper, not responsive to the defense summation, not harmless, and ordered a new trial.

This was a dropsy case.  The defendant was approached by police officers on the grounds of a public housing project.  The defendant fled, dropping drugs, cash, and a cell phone along the way.  The issue at trial was the defendant's identity as the perpetrator.  He claimed that it was another person who ran from the police and dropped the drugs, cash, and phone.

At trial, the People moved the cell phone into evidence "for the purpose of displaying pictures of defendant contained therein, apparently to prove that the telephone belonged to him."  No witness testified as to the contents of the phone—specifically, the log of incoming and outgoing calls.  Nevertheless, during summation, the prosecutor "point[ed] out to the jury the specific dates and times of certain calls logged on the telephone, and ... invite[d] the jury to view the contents of the telephone during deliberations."  During  deliberations, the jury inquired whether it could consider, as evidence, the call logs.  The Third Department's opinion does not indicate how the trial court responded to that request.

This is an incredibly interesting issue.  Essentially it raises the question of whether the admission of a "container" also includes, ipso facto, the admission of its contents, electronic or otherwise.  I did some quick research and have not found many authorities on point.  There is an unpublished decision in Washington State that seems to suggest that, once admitted into evidence, the whole exhibit comes into evidence and the jury has full access to it, including its contents.  However, there are New York cases that directly state otherwise.  For example, in People v. Givans (4th Dept. 11/23/2007), the court held that it was error to permit the jury to access text messages in a cell phone when there was no testimony authenticating the texts. 

If a proper foundation has been laid for the admission of the "container" (here, the officers presumably identified the cell phone as the one dropped by the defendant), why is there prohibition on examining its contents?  I suppose a concern is that the logs themselves are subject to tampering and, therefore, a chain of custody has to be established.

Lesson learned?  If you want a jury to consider the electronic contents of a cell phone or other electronic device, it is best to have the logs, texts, etc., separately admitted.  Merely admitting the container itself will not suffice. In addition, it seems that whenever a cell phone is admitted—but no foundation has been laid as to its contents—the trial court must issue an instruction to the jury not to power on the cell phone.  In this case, the trial court would have had to go further and instruct the jury that, while it may view the photos, it may not access the call history logs, text messages, and other contents.  (LC)

Defendant's Right to Testify Before the Grand Jury Violated

A defendant has a right to testify before the Grand Jury.  In People v. Maddox (Sup. Ct. Monroe Co. 12/1/2008), Justice Egan concluded that the defendant's right was violated because the prosecutor directed the examination, never permitting the defendant to tell his side in narrative form.

The court summarized the Grand Jury testimony:

After the oath and acknowledgment of the waiver of immunity, Defendant's testimony began. The prosecutor began the questioning by stating to Defendant: "I'll give you the floor so you can explain what you were doing and where you were on a particular date, time and location, okay?" (Tr. p. 47, lines 6-9). After drawing Defendant's attention to the date in question, the prosecutor told Defendant: "I'm going to bring your attention now to - - it's going to be Wednesday, September 17, at approximately 11:08 p.m.. I'm simply going to ask you if you know where you were on that night, and if you were with anyone, explain who you were with, where you were at; and if you were in a motor vehicle, explain how it is you got there, and what happened that night shortly after 11 o' clock . Okay?". (Tr.p. 47, lines 11-19).

After this introductory matter, the prosecutor, rather than permit the Defendant to offer a narrative of events in the day in question, proceeded to question the Defendant on certain pedigree matters and his putative associations with co-defendants in the case. Nine pages of transcript later the questioning finally turned to the events in question. All the while, the prosecutor was directing the manner of questioning and the topics. At page 56 of the transcript the prosecutor finally began to direct the testimony of the Defendant concerning the transaction at issue. The questioning was interspersed with imperatives and questions such as: "[s]o describe what happened next? [Tr. p. 56 , l. 9] and "[a]re you familiar with the area?". The questioning continued until page 75 of the transcript. Most of the mode of questioning during the balance of Defendant's testimony was a hybrid of direct and cross examination. There were two attempts at impeachment of Defendant's testimony with prior criminal convictions. The prosecutor's general tone of questioning was vigorous and at times confrontational all in the absence of Defendant first having an opportunity to deliver a narrative in his own words.

The court found that this violated CPL § 190.50:

Criminal Procedure Law (hereinafter, "CPL") §190.50(5)(b) requires that where a person has executed a waiver of immunity, "such person must be permitted to testify before the grand jury and to give any relevant and competent evidence concerning the case under consideration." See CPL §190.50(5)(b). A defendant testifying before a grand jury must be given an opportunity to give his own version of the events before being examined by the prosecutor. People v. Smith, 84 NY2d 998, 1000 (1994). Not only must a defendant be accorded an opportunity to give his own version of events first in narrative fashion, but he must also be given that same opportunity without being interrupted. People v. Lerman, 116 AD2d 665, 666 (2nd Dept. 1986).

Lesson learned for prosecutors?  When a defendant testifies, provide him with an opportunity to tell his side of the story before asking questions.  It might be helpful to conclude a defendant's Grand Jury testimony with a question like, "Is there anything else about the incident in question that you would like to say?"  Although such a question might invite a rambling plea for mercy, it nevertheless helps to avoid the type of problem discussion in this case.  (LC)

Preservation

Chief Judge Kaye, in what will be one of her last opinions as a Judge of the Court of Appeals, wrote for a unanimous court in People v. Hawkins (Ct. App. 11/25/2008), a consolidated case dealing with preservation.  It is an important case for both trial and appellate attorneys.

The Court of Appeals is limited to hearing questions of law.  In contrast, the Appellate Division can decide questions of law, fact, or issues in the interest of justice.  Legal sufficiency is a question of law ... but only if it has been properly preserved.  What constitutes adequate preservation?

To preserve for this Court's review a challenge to the legal sufficiency of a conviction, a defendant must move for a trial order of dismissal, and the argument must be "specifically directed" at the error being urged (People v Gray, 86 NY2d 10, 19 [1995]; People v Hines, 97 NY2d 56, 62 [2001]). As we have repeatedly made clear — and underscore again — general motions simply do not create questions of law for this Court's review (see People v Finger, 95 NY2d 894, 894 [2000] [legal sufficiency issue was unpreserved by a motion for trial order of dismissal claiming that every element had not been proven]; People v Bynum, 70 NY2d 858, 859 [1987]; People v Stahl, 53 NY2d 1048 [1981]; People v Cona, 49 NY2d 26, 33 n 2 [1979]).

Unfortunately, many motions for trial order of dismissal are general and perfunctory.  The Court explained why specificity is required:

Sound reasons underlie this preservation requirement. As we stated in Gray, a specific motion brings the claim to the trial court's attention, alerting all parties in a timely fashion to any alleged deficiency in the evidence, thereby advancing both the truth-seeking purpose of the trial and the goal of swift and final determination of guilt or nonguilt of a defendant (86 NY2d at 19-20). A defendant's motion for a trial order of dismissal that specifies the alleged infirmity helps to assure that legally insufficient charges will not be submitted for the jury's consideration, and serves the overall interest in an efficient, effective justice system.

Viewing the preservation requirement in the context of the individual trial, it is defense counsel who is charged with the single-minded, zealous representation of the client and thus, of all the trial participants, it is defense counsel who best knows the argument to be advanced on the client's behalf. Viewing the preservation requirement systemically, intermediate appellate court review is potentially comprehensive, including not only law questions but also fact issues and the interest of justice. This Court's second level of review — "to authoritatively declare and settle the law uniformly throughout the state" — is best accomplished when the Court determines legal issues of statewide significance that have first been considered by both the trial and the intermediate appellate court.

Given this strong reaffirmance of the principles in Gray, it is incumbent upon trial defense counsel to make a strong record of legal insufficiency.  Otherwise, appellate counsel will have to fallback on an "interest of justice" attack before the Appellate Division.  These claims are difficult to win. 

Lessons learned?

• Counsel should prepare for the motion for trial order of dismissal as they would for any other important stage of a trial: voir dire, cross-examination of  witnesses for the People, summations, etc.  It is tough to come up with specific legal sufficiency arguments in the middle of trial.
• A motion for trial order of dismissal should carefully and slowly lay out the arguments why each particular count of the indictment should be dismissed.  While citation to case law is not necessary, it is always helpful.
• A catch-all or general motion ("I move to dismiss Count X of the Indictment because the People have failed to adduce legally sufficient evidence. Thank you, Your Honor.") is as good as making no motion at all.  Specificity is the key. 
• Judges should allow defense counsel sufficient time to prepare and make their arguments.  If the People rest their case at 12:55 p.m., perhaps hearing the motion after a lunch recess would be preferable to "getting it out of the way" before the break.
• Remember that if the defense presents evidence, the motion must be renewed at the close of the evidence.  See People v. Hines, 97 N.Y.2d 56 (2001). Here, too, the argument must be specific.

(LC)

Ineffective assistance and the "Dog Pound"

People v. Ennis is a fascinating Brady and ineffective assistance of counsel case that was decided today by the Court of Appeals.  Basically, two brothers -- Sheldon and Aaron Ennis -- were charged with running a drug-selling conspiracy in Manhattan.  They ran their operation out of a hotel that they dubbed the "Dog Pound."  At trial, the People attempted to show that the brothers, and a third co-conspirator, used violence to protect their drug turf.  One of the incidents involved a shooting.  The victim testified that both Aaron and Sheldon shot at him.

During the trial, Aaron Ennis' attorney confided to Sheldon Ennis' attorney that Aaron had made a proffer to the People, during plea negotiations, that he alone had shot at the victim and that Sheldon was not present.  According to Sheldon's attorney, this information was communicated to him in confidence, with the understanding that it would not be disclosed until after trial.  The People never disclosed the contents of the proffer to Sheldon's lawyer.

The question on appeal was whether Sheldon's attorney provided effective assistance of counsel.  The defendant argued that he did not, due to a conflict of interest and the attorney's failure to take action on the disclosed information as well as the People's failure to turn over the information.  The Court of Appeals, in a unanimous decision authored by Judge Graffeo, rejected defendant's claims and affirmed his conviction.

The court first held that there was not a conflict of interest:

To date, our conflict of interest cases have generally fallen into one of two categories: cases where a potential conflict of interest was identified based on defense counsel's previous or concurrent representation of a client whose interests conflicted with those of defendant (see e.g. People v Abar, 99 NY2d 134 [2002]; People v McDonald, 68 NY2d 1 [1986]) and cases where defense counsel became a witness against defendant (see e.g. People v Lewis, 2 NY3d 224 [2004]; Berroa, 99 NY2d 134). Regardless of the circumstances, in our prior cases the potential conflicts of interest were discernible based on objective facts that were not easily subject to manipulation by the conflicted attorney. 

...

In this case, the purported conflict of interest does not arise from objective facts or circumstances external to defense counsel. Rather, it is alleged that defense counsel was torn between keeping a promise to Aaron's counsel not to reveal the exculpatory information and fulfilling his professional obligation to act in defendant's best interests. In the affidavit submitted in connection with the CPL 440.10 motion, Cooper stated that he did not tell the trial court about the alleged Brady violation or otherwise attempt to use the exculpatory information at trial because he felt constrained to remain silent, apparently based on his personal (as opposed to professional) ethical values.

The personal dilemma defense counsel describes is markedly different from the types of conflicts that we have previously recognized as triggering our conflict of interest analysis because it is entirely subjective. Many (perhaps most) attorneys would not have perceived any conflict; having learned information that they deemed useful to their client, they presumably would have pursued one of several available courses of action, including advising the trial court, ex parte and without necessarily divulging their source, that they had reason to believe there had been a proffer session in which exculpatory statements were made. For these lawyers, any personal concern stemming from the assurance of confidentiality would have been outweighed by the professional obligation to pursue the interests of a client who was on trial for serious offenses, including attempted murder. We are therefore hard-pressed to place the internal struggle cited by defense counsel in the same category as the conflicts of interest discussed in our precedents.

The court also noted that the question under the second prong is a mixed one of law and fact.  The court could not find that the inference drawn by the courts below lacked support in the record.

Turning to the question of whether counsel was ineffective for failing to make proper use of the information, the court first summarized counsel's "effective" advocacy throughout the trial.  This is an important point that many appellate attorneys overlook: Under New York's standard for ineffective assistance of counsel, the entirety of counsel's work must be examined to determine whether he or she provided "meaningful representation."  Therefore, any error must be placed in the context of the entire representation.  Here, the court found that the defendant had the assistance of an able advocate:

In this case, defense counsel performed as an effective advocate in many significant respects. He vigorously cross-examined the People's witnesses, gave a strong closing argument, and succeeded in obtaining acquittals on the most serious charges facing defendant — the three attempted murder counts (one relating to the Moody shooting and the others stemming from the stabbings of Calwell and Sherman).

The court also found that, in any event, counsel's lack of use of the information from Aaron's attorney did not deprived the defendant of effective assistance of counsel.  Importantly, the court noted that the defendant would not have been able to do anything meaningful with the information.  He could not have called Aaron to the stand (since he would have asserted the privilege against self-incrimination).  Other witnesses to the proffer could not have testified about its substance because the statement that the defendant did not shoot the victim and was not present was not against Aaron's penal interests.  Likewise, raising a Brady claim during the trial would not have resulted in a sanction against the People because:

had the statement been turned over, there would have been no avenue for defense counsel to admit it into evidence, either in the joint trial of the Ennis brothers or in a separate trial of defendant had severance been granted.

The court noted, however, that the People's failure to disclose the proffer "cannot be condoned."

So what are the key points to be learned from this case?

• An ineffective assistance of counsel claim will not succeed without a showing that the trial attorney did not offer meaningful representation.  A single or even series of judgment calls, which in retrospect were not wise moves, will not suffice to garner a new trial unless really severe.
• Proffer sessions of one co-defendant are difficult for other co-defendants to introduce into evidence.
• As always, the best practice of a prosecutor is to disclose everything that is even remotely exculpatory even if the information is not, itself, admissible in evidence. 

(LC)