New York Criminal Law and Procedure

Another reversal for equivocal answers by juror

The Second Department reversed the conviction in People v. MacFarlane (2d Dept. 8/23/2011), because the trial court sat a prospective juror who had given equivocal answers to a question about police credibility.  The Defendant was on trial for Murder 2º.  During voir dire, the juror reported that several family members were police officers.  "The prospective juror expressed on two occasions her concern that she may give the testimony of a police officer more credence than she would to other witnesses. When asked if she would give no greater credibility to the testimony of police officers, the prospective juror replied, 'I would like to think that I can be fair, but it's hard.' When asked if she could evaluate the testimony of police officers in the same way as any other witness, the prospective juror answered, 'I would hope so.' Further, in response to a query from defense counsel as to whether she could be fair and impartial, the prospective juror stated, 'I'd like to think of myself as a fair person, but I — it's — I — I do give police officers a little more credence, I think, than I would other people.'"

Based on the juror's responses, the Appellate Division found that the juror should have been excused for cause.  

Lesson learned?  While it is frustrating for both jurors and attorneys, the latter must ensure that the former give unequivocal answers to questions about bias.  Jurors who remain on the fence about such an issue must be excused.  (LC)

Lawyers as jurors

Conduct by a juror is improper if it may affect a substantial right of the defendant.

In People v Davis, (2d Dept. 5/24/2011) (Hall, J.), the defendant appealed his conviction of two counts of Murder 2°, six counts of Robbery 1°, three counts of Burglary 1°, and one count of Criminal Possession of a Weapon 2° for his participation in an apartment raid.  The trial jury included a juror who practiced as a real estate attorney.  After the jury convicted the defendant, several jurors wrote letters to the prosecutor, the court, and the defense attorney explaining that while they were deliberating the attorney-juror instructed the others about the law.  Based on the conduct of the attorney-juror, defendant raised a motion to set aside the verdict pursuant to CPL § 330.30(2).  The trial court denied the motion without a hearing.  It reasoned that inquiry into the activities raised by the letters would be impermissible due to the rule forbidding inquiry into the tenor or content of jury deliberations.

In affirming the conviction, the Second Department held that the trial court did not abuse its discretion when it denied the motion without conducting a hearing.  The Second Department explained that while inquiry into the tenor of jury deliberations is generally impermissible, inquiry into improper jury influence may be allowed on a case by case basis.  After referencing several Court of Appeals cases for the premise that improper influence is evident where the jury comes to possess factual evidence not introduced at trial, the Second Department found that the attorney-juror did not convey facts beyond those presented at trial.  This finding was supported by the record of jury notes requesting reinstruction on the law and readbacks of the defendant’s testimony.  Additionally the court noted that the statements allegedly made by the attorney-juror were accurate interpretations of the law, but that even if the statements were incorrect that they would not constitute improper conduct as set forth in CPL § 330.30. 

I have always been suspicious of having a lawyer on my juries for precisely the reason raised by this case.  I have usually exercised my preemptories to excuse potential lawyer-jurors.  I see several problems with lawyer-jurors: (1) they may, as in this case, advise the rest of the jurors on the law; (2) the other jurors may turn to the lawyer-juror for legal interpretation; and (3) the lawyer-juror's views may carry more weight because of his or her status.  Some may view these problems as actually benefits.  I see some merit to this conclusion, depending of course on the particular juror at hand.  Nevertheless, I am ultimately persuaded that having a lawyer-juror on the jury is too much of a wildcard.  (MM/LC)

Parole status not controlling for 2009 DLRA resentencing application

The Drug Law Reform Act of 2009 (2009 DLRA) allows for incarcerated felons who committed a class B felony prior to January 13, 2005 and who are serving an indeterminate sentence with a maximum of more than three years to apply for resentencing (CPL 440.46).  In People v. Phillips (2d Dept. 3/15/2011), the Appellate Division held that parole status was not controlling for a 2009 DLRA resentencing application. The Defendant's motion for resentencing had been denied by the County Court, holding that the Defendant was a reincarcerated parole violator and that made him ineligible for resentencing.

The Appellate Division reversed, holding that parole violations do not automatically bar DLRA 2009 relief. While the AD2 acknowledged that the Court of Appeals stated that the legislature did not want new crimes to trigger the opportunity for resentencing, the Court held that only applied to the Drug Law Reform Act of 2005 and not 2009 DLRA. The court held that relief under 2009 DLRA could not be denied on the basis that the defendant is reincarcerated as a parole violator. The denial of the defendant's motion was reversed and remanded for a new determination. 

This case now sets up a department split.  The First Department previously held that parole violators were not eligible for resentencing under the 2009 DLRA (People v. Pratts, 74 A.D.3d 536, 537, lv. granted, 15 N.Y.3d 895).  Leave was granted in that case.  It will be interseting to see how the Court of Appeals resolves the issue.  (JMM/LC)

Court must conduct a sufficient inquiry before enhancing a sentence for plea violation

The Second Department in People v. Zobe (2d Dept. 3/15/11), explained the procedure that must be followed before a defendant's sentence can be enhanced for violating a  condition of his plea agreement before sentencing.

The Defendant pleded guilty to Insurance Fraud 3º. As part of his plea agreement the Defendant stated he understood: (1) he must answer all questions asked by the Department of Probation truthfully and be consistent with the answers he gave during the plea colloquy; and (2) if the first condition is violated his sentence would be enhanced up to the maximum allowed.  The County Court, Westchester County, enhanced the Defendant's sentence after the Court found he violated his plea agreement when he was untruthful with the probation department.

After the Defendant was arrested for insurance fraud, he alleged the police beat him and handcuffed him to a chair.  Zobe later sued Yonkers Police Department. The Defendant made several statements to his probation officer about the alleged beating, including "all a false arrest." However, the Defendant never denied committing the insurance fraud. The County Court concluded the statements to his probation officer violated his plea agreement and enhanced his sentence. 

The Second Department reversed the County Court because the lower court failed to conduct a sufficient inquiry as to whether or not the Defendant violated a condition of his plea agreement. As part of that inquiry the Defendant should have been given an opportunity to present evidence that his later statements to his probation officer did not contradict the earlier statements he made in court.  (MK/LC)

Failure to advise of consequences of PRS violation

We all know that postrelease supervision (PRS) is a direct, not collateral, consequence of a conviction and, therefore, courts must advise a defendant that there will be a term of PRS before he or she pleads guilty.  But does that rule extend to advising a defendant that violating a PRS condition could lead to a prison sentence?  The Second Department recently said "no" in People v. Monk (2d Dept. 3/15/2011).  Prior to Monk, both the First and Third Departments had said that the consequences of violating a PRS term are collateral and need not be told to a pleading defendant.

The consequneces of violating a term of PRS are individual to the defendant and discretionary with the Parole Board.  Thus, the Second Department held, what happens after a PRS violation is collateral and does not affect the voluntariness of the plea.

This result makes sense, since the ramifications of violating the conditions of postrelease supervision are subject to the discretion of the Board of Parole, rendering them, by nature, merely collateral to pleas and sentences. Specifically, alleged violations of the conditions of postrelease supervision are heard and determined by the Board of Parole, and, upon determining that there is probable cause to believe that a defendant has violated such a condition, the Board of Parole must conduct a revocation hearing (see Penal Law § 70.45[4]; Executive Law § 259-i[3]). If the presiding officer at that hearing is satisfied, by a preponderance of the evidence, that the defendant has violated one or more conditions of postrelease supervision, the presiding officer then determines the remedy that is to be imposed upon the defendant (see Executive Law § 259-i[3][f][x]). The remedies that may be imposed are, as relevant here, a restoration of the defendant to supervision; or, as an alternative to reincarceration, the placement of the defendant in a parole transition facility for not more than 180 days with subsequent restoration to supervision; or directing the defendant's reincarceration for up to the balance of the remaining period of postrelease supervision, not to exceed five years (id.).

Thus, the consequences that arise from violating conditions of postrelease supervision are within the discretion of the Board of Parole, and are therefore collateral to the judgment of conviction. Accordingly, there is no requirement that a trial court must specifically advise a defendant of the consequences of violating conditions of postrelease supervision, in order for the defendant's guilty plea to be knowingly and voluntarily entered.

(LC)

 

Reversal for prosecutorial misconduct

The cumulative effect of improper comments by a prosecutor in summation can lead to reversal in the interest of justice, even though the claim was only partially preserved.  In People v. Spann (2d Dept. 3/15/2011), the Defendant was charged with CPW 2º after an officer noticed a gun during a traffic stop.  The court pointed to the following errors during the prosecutor's summation:

• Arguing that the Defendant's nervousness was consciousness of guilt and that the Defendant's contention that this was due to a medical contention was a "smokescreen" and "smoke and mirrors."
• Informing the jury that the only way it could find reasonable doubt was if it believed the Defendant.
• Repeatedly arguing that the gun was found under the front passenger seat when the testimony only established that it was under the "front seat."

Interestingly, the Second Department's opinion did not address harmless error.  (LC)

AD2 issues two reversals for IAC

In two recent decisions, the Second Department reversed the convictions, finding trial counsel provided ineffective assistance of counsel.

In the first, People v Bodden (2d Dept. 3/1/2011), a case out of Queens County, the Defendnat was charged with CPW 2º and related counts.  The court found that the cumulative effect of counsel's errors deprived the Defendant of a fair trial.  They included:

• counsel's statements during jury selection distanced himself from his client;
• failure to cross-examine witnesses effectively;
• use of "an anachronistic and potentially offensive term to describe the race of one of the persons allegedly present at the time that the defendant was arrested";
• failure to inspect photographs before they were admitted into evidence, even though he had not seen them before;
• two improper offers to stipulate: (1) that a fact witness was an expert witness; and (2) to another witness' entire testimony, even though he did not know what the witness would say;
• frequent interruptions;
• failure to ask the Defendant's mother, during her testimony, about the alleged crime, even though she was present;
• untimely request for a missing witness charge;
• during closing argument, "although he made some cursory observations about the People's evidence, he focused much of his presentation on the role of a jury in a democracy"; and
• failure to object to improper arguments by the prosecutor in summation.

In the second case, People v. DiPippo (2d Dept. 3/1/2011), a murder prosecution out of Putnam County, the court found that defense counsel had a conflict of interest arising out of the representation of a former client, who was also a suspect in the homicide.  The Appellate Division found that there was insufficient evidence that trial counsel investigated the evidence against the former client, disclosed the former representation to his present client, or that he tried to get evidence of photographs implicating the former client into evidence.  Based on these findings, as well as a lengthy hypothetical posed to trial counsel and his response, the Second Department wrote, "[w]e need not defer to the Supreme Court's determination finding trial counsel credible."  The court ultimately concluded, "[C]ontrary to the Supreme Court's determination, trial counsel's actions did not unambiguously demonstrate that he 'perceived no conflict of interest and was unaffected by any sense of loyalty to [the former client].'" (LC)

Burglary and the house under foreclosure

One of the elements of Burglary is the unlawfulness of the entry.  In People v. Klem (2d Dept. 1/25/2011), the Defendant was accused of entering an abandoned building that had been foreclosed.  Although there was a judgment of foreclosure and an order of sale, the complainant still had a property interest in the premises until the property was actually sold.  Therefore, there was legally sufficient evidence on this element when the complainant testified that she did not consent to the Defendant's entry.  

Nevertheless, the conviction was reversed.

As relevant to that charge, the defendant sought to call a witness who allegedly would have testified that, on the day of the incident, a hot water heater was taken from her property, and that her property abutted property owned by the employer of one of the codefendants. This testimony was relevant to the theory of defense, which was that the hot water heater that was seen in the defendants' possession by the People's witnesses had not been taken from the building on the complainant's property, and also would have served to impeach the credibility of the People's principal witnesses on the material issues of whether the defendants entered the complainant's building, and whether they did so with the intent of committing a crime therein.

(LC)

Is it IAC to ask for lesser-included offenses that your client does not want?

In an attempt to give the jury some "leeway" to somewhat negotiate a verdict, defense counsel urged the court, during a charge conference, to give jury instructions for both Murder and Manslaughter 1° and 2°, instead of just Murder, as the defendant himself wanted. Although Manslaughter 1° and 2° carries significant prison time, charging Murder by itself would limit the jury’s options. Ultimately, however, counsel acquiesced to his client's wishes and abandoned his efforts to obtained lesser-included counts in the jury charge.  This scenario—defense counsel requesting lesser offenses that his client did not want—in People v. Colville (2d Dept. 10/5/2010) raised an ineffective assistance of counsel claim; it was ultimately rejected. 

In a signed opinion by Justice Chambers, the court engaged in a discussion about the federal and New York standards of assistance and ultimately concluded that defense counsel’s behavior was in accord with constitutional principles and ABA guidelines. The court noted that a defendant without counsel retains authority over "fundamental decisions" while counsel has authority over "strategic and tactical" ones.  As to which category the decision to request lesser-included offenses falls under, other courts are split.  Ultimately, even if the lesser-included offenses were considered valid as either fundamental or strategic, it did not matter because the defendant was not deprived of the effective assistance of counsel. Specifically, if it was “fundamental,” the defendant made the ultimate decision; if “strategic,” counsel did not overrule the defendant, but rather gave him a choice. Either way, defendant had meaningful representation.  (RB/LC)

 

Cached and deleted files support a conviction

A conviction for child pornography related charges, based on automatically created temporary internet files and recovered files, is legally sufficient.

In People v. Kent (2d Dept. 10/12/2010), defendant appealed a conviction of two counts of Promoting a Sexual Performance by a Child and 134 counts of Possessing a Sexual Performance by a Child.  In a case of first impression, the Second Department affirmed the conviction on the ground that the evidence was legally sufficient.

An IT support employee responded to a complaint by defendant about a virus on defendant's office computer. While attempting to remedy the complaint the employee discovered pictures of young girls in suggestive poses on defendant’s computer.  The employee seized the defendant’s hard drive, and the organization consented to a search of the hard drive by a police investigator.  The investigator discovered image and video files depicting child pornography on the hard drive.  Some of the files were found in the web browser cache, a portion of the hard disk where files downloaded by the web browser are automatically stored to facilitate web browsing.  Other files were recovered, meaning that they had been deleted from the operating system but not removed from the hard dive.

Defendant argued that the files presented as evidence were legally insufficient to support his conviction.  Defendant based this argument on an assertion that he lacked knowledge of the cache function of his computer, and thus that he lacked the necessary mental state for his convictions.

The court surveyed the approaches taken by other courts in handling cached files, and determined that the mere presence of files stored automatically in a cache is generally not sufficient to convict a defendant of possessing or procuring child pornography.  Determining evidentiary significance requires evaluating other circumstances to distinguish between unintentional and intentional acts. This factual inquiry requires considering the history of the files (including origination and utilization) and the control exerted by the defendant over the files.

Applying this analysis and viewing the facts in the light most favorable to the prosecution, the Second Department reasoned that the cached files were evidence that the defendant previously procured and possessed child pornography ... whether the defendant knew the files were saved or not.  The court further reasoned that the recovered files indicated that the defendant had previously possessed child pornography and exerted control over the files by deleting them, which tended to indicate conscious guilt and knowledge of the illegality of the files.  Additionally, the court found that other files and activity logs on defendant’s computer indicated defendant’s interest in child pornography and knowledge of the content he possessed.  In conducting its review of the weight of the evidence the court gave deference to the factfinder’s observations, and found that the defendant had exercised sufficient dominion and control over the files to support his conviction. (MM/LC)

Role of defense counsel on a People's appeal

What happens to the defendant when the People appeal a pretrial order, such as one granting suppression or dismissing the accusatory instrument?  Who represents him?  Trial counsel, who is usually inexperienced in handling appeals?

In People v. Brun (Ct. App. 10/26/2010), decided today, the Court of Appeals reminded counsel---at least those in the Second Department---that they have a continuing duty to represent clients while their cases are on a People's appeal.  The Second Department's rules provide that if a defendant was represented by assigned counsel at the trial court,

such assignment shall remain in effect and counsel shall continue to represent the defendant as the respondent on the appeal until entry of the order determining the appeal and until counsel shall have performed any additional applicable duties imposed upon him by these rules, or until counsel shall have been otherwise relieved of his assignment

In Brun, the court granted a writ of error coram nobis, essentially causing a "re-do" of the People's appeal, since the defendant was not represented by his trial attorney during the appeal.  (LC) 

Justification not available for Felony Murder

Felony murder in New York is limited to certain enumerated offenses and the justification defense is applicable only if there is evidence that the defendant committed a felony to save his or her own life or the life of another.

In People v. Walker (2d Dept. 9/28/2010), the defendant took several individuals hostage in his basement. After some time, one hostage became frustrated and was allowed to leave only "to get money from his employer." Instead, he returned with his armed stepson. The defendant shot and killed the stepson. 

 

This defendant was convicted of felony murder. The defense attorney did not raise self-defense until his summation. The defendant appealed, contending that his killing was justified. The Appellate Division disagreed and emphasized many cases in “nearly every jurisdiction” that do not recognize the defense of justification to those who initiated the underlying felony. The purpose of the felony murder statute is to punish a felon for killing a victim when the danger arises from a limited list of felonies, even when the killing is in self-defense. And, self-defense is not available to defendants who kill the victim after the victim resists. (RB/LC)

 

Cumulative effect of errors leads to reversal

A conviction obtained through less than honest fact-finding is a deprivation of the constitutional right to a fair trial.

In People v. Slide (2d Dept. 9/28/2010), the defendant was charged with Murder 2°, Burglary 1°, and CPW 2°.  Before trial the defendant moved for and was granted a Sandoval hearing; however, no hearing was actually held. Additionally, in their papers the People acknowledge their Molineux obligation.  The People did not provide defense counsel with pretrial notice, but at trial they questioned the defendant about his prior arrests and school disciplinary record.  In addition, the defendant raised a challenge to the voluntariness of statements he made to the police.  He alleged that the statements were coerced through verbal threats and physical abuse by the police.  The trial court provided the jury with instructions for considering the voluntariness of statements, but omitted from those instructions the explanation that statements obtained through the use of threats or physical force can be considered involuntary.  During summation, the prosecutor "conveyed to the jury that there may have been additional evidence, not admitted at trial, that would further support a guilty verdict."  The defendant was convicted of Murder 2°, Burglary 1°, and CPW 2°.

On appeal, the defendant argued that he was deprived of his right to a fair trial.  The Second Department analyzed the compounded trial errors and agreed.  In reversing the convictions and ordering a new trial, the court noted that the failure of the trial court to conduct a Sandoval hearing, the failure of the People to give Molineux notice, the flawed instruction, and the prosecutorial misconduct in summation led to the conclusion that the verdict was the result of trial errors and not the result of "honest fact-finding." (MM/LC)

NYSP no-plea-bargaining policy not a constitutional violation

The New York State Police's "no-plea-bargaining" policy does not violate an individual’s equal protection or due process rights when the officer who issued the ticket is the prosecutor.

In People v. Murphy (2d Dept. 9/20/2010), the defendant was charged with Speeding. The defendant moved to dismiss and emphasized that, pursuant to the county DA policy, the trooper who issued the ticket was also the appointed prosecutor. The Justice Court granted the defendant’s motion to dismiss the information and reasoned that the dual role of the trooper would undermine confidence in the justice system. 

The Second Department disagreed. Because the policy does not implicate a (1) suspect class or (2) fundamental right, it should be upheld as long as there is a rational basis. Here, the policy is a reaction to the shortage of assistant district attorneys. Thus, this policy was rationally related to the objectives of "eliminating the appearance of impropriety and ensuring the fairness of the proceeding."

But, as the dissent recognizes, individuals may be treated differently depending on whether the ticket issued was by an New York State Police officer or a local police officer. Justice Iannacci argued that a rational basis does not exist when "disparate treatment of otherwise similarly situated citizens."  Justice Iannacci would have dismissed the simplified traffic information due to a legal impediment—specifically, that the delegation leads to an Equal Protection Clause violation. (RB/LC)

Clarification of "reported" for tolling purposes

CPL § 30.10 is New York's statute of limitations for criminal actions.  Two exceptions apply to certain sex crimes against children.  The statute tools the limitations period until: (1) the child reaches the age of 18, or (2) the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever comes first. Additionally, C.P.L. § 30.10(4)(a)(ii) excludes “any period following the commission of the offense during which … the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence.” 

In People v. Quinto (2d Dept. 8/31/2010), the Second Department considered the application of these tolling provisions in a sexual abuse case. 

In 2002, the 14 year old complainant realized she was pregnant, met with police, and falsely accused another 14 year old classmate of raping her in the school bathroom. After various inconsistencies were revealed, she retracted the rape accusation and substituted another false story that she engaged in consensual unprotected sex with a classmate. Five years later in 2007, now 19 years of age, the complainant reported that the defendant (her step-grandfather) sexually abused her on three separate occasions in 2002.  The defendant was charged with numerous felonies, misdemeanors, and violations.  Each depended upon the when the statute of limitations began to run for each crime. The defense moved to dismiss the claims as time barred. Thus, for reinstatement, the crimes charged must have come under one of the above tolling provisions. 

The defense argued that the sex crimes charged in the indictment were “reported” within the statutory meaning on the day the complainant first spoke to the police about her alleged rape resulting in her pregnancy. If the statute of limitations began at that moment, the claims would be time-barred. But, the court disagreed and held that in consideration of legislative intent, the statute of limitations did not begin to run on that date. Itreasoned that the word “report” in the context of the statute must, by its nature, provide a description of the offending conduct. The crimes charged, then, would have to be derived from this report. A connection must exist between the alleged conduct contained in the report and the crime charged. The court quoted the Legislature: 

Child victims of sexual abuse are usually violated by people with whom they have an ongoing relationship. The above usually occurs frequently and regularly over a long period of time during which for various reasons children do not disclose.

These facts, as held by the court, were consistent with the Legislature’s concerns; accordingly, her 2002 statements indicating that she engaged in consensual sex with another 14 year old did not connect appropriately with the crimes charged against the defendant. Since the statements were not considered a “report,” the statute of limitations did not begin to run at that moment. 

However, the court held that second tolling exception did not apply. Ultimately, the non-sex-related misdemeanors and violations charged in the indictment were held to be time barred because the defendant's whereabouts were not unknown. (RB/LC)

 

Blood trail leads to warrantless search

In People v. Rodriguez (2d Dept. 8/31/2010), the Second Department reversed the lower court’s suppression of physical evidence.  The appellate court held that the evidence was recovered within the bounds of the emergency exception to the Fourth Amendment.

Police officers were summoned to the fifth floor of an apartment complex in response to a 911 call reporting a stabbing.  Upon arrival, the officers found the defendant bleeding profusely in a fifth-floor stairwell.  The defendant described his assailant to the officers, and thereafter several officers were dispatched to apprehend the suspect.  One officer stayed with the defendant until emergency services arrived.  This officer questioned the defendant about the attack.  The defendant stated that he was walking on the fifth floor when his assailant stabbed him for no reason.  The defendant further stated that he did not live in the building.  After the defendant was taken away in an ambulance, the officer learned from the fifth-floor tenant who called 911 that the defendant did in fact live in the building.  The officer’s suspicion was raised upon learning that the defendant lied to him about living in the building.

From the fifth-floor stairwell where the defendant was found, the officer followed a trail of blood down to the third floor.  On the third floor, the trail continued over the landing to apartment 3L.  The officer noticed blood in front of and on the door of apartment 3L.  The officer knocked on the door, but no one responded.  Instead of trying to break down the door, which the officer did not believe he would be able to do because of his small stature, or waiting for backup to assist in his entry, which the office believed could take up to thirty minutes, the officer asked the superintendent to unlock the door.  The superintendent unlocked the door ten minutes later.  By this time, the searching officer learned that the other officers had apprehended a suspect whom the defendant positively identified at a showup.  The officer, now joined by another officer, went inside apartment 3L where they observed blood in the kitchen and the living room, but did not find any other victims.  The officers noticed a digital scale with what appeared to be powdered cocaine on top, on the kitchen counter.  They also found a hydroponic tank with pots containing marijuana plants on the kitchen floor.  After a few minutes both officers left apartment 3L.  The officers subsequently secured a search warrant and made a complete search of apartment 3L where they recovered marijuana, cocaine, and drug paraphernalia.  The defendant lived in apartment 3L.

At a hearing, the defendant moved to suppress the physical evidence obtained from his apartment.  The People argued that the warrantless entry into the defendant’s apartment was justified under the emergency exception to the warrant requirement of the Fourth Amendment.  In granting the defendant’s motion to suppress, the hearing court found that the People failed to satisfy their burden of showing that the police had reasonable grounds to believe there was an emergency at hand.  The People appealed.

The Second Department noted the conflict between the Fourth Amendment and New York Law created in 2006 by Brigham City v. Stuart, 547 U.S. 398 (2006).  In Brigham City, the Supreme Court held that subjective motivation was irrelevant to the evaluation of warrantless entry in an emergency situation.  The rule applied by the Second Department here stems from People v. Mitchell, 39 N.Y.2d 173 (1976).  In Mitchell, the Court of Appeals set forth a three-prong test for evaluating whether an emergency situation justifies a warrantless search:

1. The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.
2. The search must not be primarily motivated by intent to arrest and seize evidence.
3. There must some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.

The Second Department did not reach the issue of whether the subjective prong of the Mitchell test should be abandoned in light of the ruling in Brigham City, because it found that the scenario at hand satisfied both sets of rules. 

The court generally found that the first prong was carried by the officers responding to a reported emergency, the defendant not indicating whether he was the only victim, the officer’s elevated suspicion due to the defendant’s evasive behavior, and the blood trail leading to apartment 3L.

In determining the second prong, the court looked to the officer’s testimony that the reason they entered apartment 3L was to search for additional victims.  The objective facts also supported this testimony. They included the defendant indicating that he had been attacked on the fifth floor, the blood trail leading to apartment 3L, the blood on the door of apartment 3L, and the officer asking the superintendent to open the door.  These facts along with an absence in the record of any indication that the officers had any suspicion that the defendant was engaged in any criminal activity—unrelated to the altercation—carried the second prong for the People.

Finally, the court found that the police had some reasonable basis to associate the emergency with apartment 3L because of the blood trail, the blood at the threshold, and the blood on the door.

Thus, the emergency exception was satisfied and the court did not have to address whether New York law should change in response to the U.S. Supreme Court's ruling in Brigham City.  (MM/LC)

Cumulative effects of hearsay, juror misconduct, and unexpected time limits necessitate reversal

In People v. Gibian (2d Dept. 8/25/2010), the Second Department reversed a conviction of Murder 2° on three grounds:

• Preclusion on hearsay grounds of statements allegedly made by the defendant’s mother;
• Juror misconduct during deliberation; and
• Abrupt time limit imposed upon defense counsel’s closing statement

Specifically, the Second Department found that the cumulative effect of the above conduct resulted in reversible error, necessitating a new trial. 

The police were called to the defendant’s home in February, 2005 to find the victim—the defendant’s stepfather—“slumped on a living room sofa.” The ascertained cause of death was reminiscent of a crude decapitation: “a blow to the neck inflicted with an antique Japanese samurai sword.”  Upon entry to the home, the police noticed the defendant’s mother required a cane for any mobility; however, she had blood on her hands.  The police believed this was consistent with “that of a person rendering first aid.”  A few hours later, the defendant confessed—in an extensive, six page written report—that he killed his stepfather. 

But, one year later at trial, the defendant abandoned his emotional confession and instead claimed that his 48-year-old mother, physically debilitated, was the true killer. He was permitted to convey this information without limiting instructions to the jury. The trial lasted three weeks and featured many witnesses, including experts, several of the defendant’s friends, and authorities involved in the investigation. The defendant’s friends highlighted some important propositions; most notable were statements from the defendant: he said he wanted to kill his step-father and that after the incident, he announced that he had completed killing his step-father. 

The defendant initially told the detective that his mother and step-father were asleep during the morning he left. Initially, he maintained that he did not kill his step-father.  Later, one detective inquired about the physical capability of the mother killing the defendant's stepfather and the defendant said this was not possible.  The defendant was Mirandized and told that the authorities were in the process of gathering evidence that would lead to the truth about who killed his stepfather. It was not until a detective explicitly told the defendant he personally believed the young man was the killer that the 18-year-old defendant began to sob as the confession began. The story once again deepened at trial, where the defendant’s version of the events again shifted, this time describing his stepfather as sexually, rather than verbally, abusive.  

At trial, the defendant stated that he had asked his mother what had happened. A hearsay objection was quickly raised; outside of the jury’s presence, defense counsel urged that the answer was admissible because the defendant’s state of mind needed to be considered. The defendant was allowed only to testify that his mother gave “an explanation;” still, defense counsel, in summation, emphasized a lack of proof that the mother could not kill the father; and that a valiant effort to protect his mother motivated the defendant’s admission and reconciled the discrepancies. 

First, the appellate court found that precluding the defendant from testifying about a statement allegedly made to him by his mother the day the decedent was killed—concerning how she purportedly killed the decedent—was error. According to the defendant, his confession was motivated by a desire to protect his mother, since he confessed his guilt to the police only after his mother made the detailed statement to me. The hearsay would also show how the defendant's statement squared so closely with the forensic evidence: according to the defendant, it was not because he had killed his step-father, but because his mother had told him in such detail how she committed the crime. Because the right to present a defense is considered essential to a fair trial, its scope necessarily broadens, in some circumstances, to include hearsay evidence. Here, the court agreed with the defendant’s theory that the testimony established why the defendant confessed and how, specifically, the defendant knew exact details of the murder. 

The dissent reasoned that the proposed testimony fell out of bounds of the state of mind exception to the hearsay rule, because the testimony would be used to provide details suggesting that the mother was indeed the killer. 

Second, reversal was required because of juror misconduct, specifically because a member of the jury, who was a court officer, interposed certain legal opinions and her own professional knowledge into the deliberations. The Appellate Division held that the trial court failed to conduct the proper inquiry and, thus, erroneously concluded that no misconduct existed. Again, the dissent illuminated more facts. Prior to the court officer’s interjection, another juror had allegedly taken notes, which caused some controversy as they were given to the foreperson at the end of the day; these notes were taken in preparation for the next day’s deliberation. Only at that point did the court officer admonish the industrious note-taking juror and, using her experience as a court officer, advised him of what might happen if he was found to be inciting a mistrial. 

Third, without sufficient reason, the trial court placed an unexpected and arbitrary time limit upon the defense attorney's closing argument. The Appellate Division considered this to be an “unjustifiable limitation, which impaired the defense’s right to make an effective closing argument.” The dissent pointed out some information that calls this claim into question.  The defense counsel had been speaking for an hour when he requested another 45 minutes to one hour to complete his summation.  The court granted his request for another 45 minutes. In total, the defense attorney managed to pack in 80 pages of the trial transcript and take considerably longer than the prosecution. (RB/LC)

Reasonable expectation of privacy in hotel past checkout

In People v. Hardy (2d Dept. 8/10/2010), the Second Department held that the policies and practices of a hotel may result in the extension of a defendant's reasonable expectation of privacy past checkout time, but that when the hotel takes affirmative steps to evict a defendant for good cause the defendant's expectation of privacy in the hotel room is extinguished.

The defendant stated at the hotel in question for several nights.  When the defendant first checked into the hotel, he paid for a night in a room.  Checkout time was 11:00 A.M. the following day.  The next day, the Defendant did not checkout and did not prepay for an additional night in the room.  Hotel staff did not take action against the Defendant and permitted him to stay in the room overnight without prepayment.  The following day, the Defendant paid for the previous night and prepaid for an additional night in the room.  The next day, the Defendant again did not checkout and did not prepay for an additional night in the room.  Hotel staff called the Defendant to request payment but the Defendant did not comply with the request.  Despite this repeat nonpayment the hotel did not deactivate the Defendant's room card. 

The official hotel policy is to require guest to prepay room charges by 11:00 A.M. for the following day.  However the management of this particular hotel location followed an unofficial policy of not acting on the first failure of a guest to pay, but taking some action in the event of a second failure of a guest to pay.

Early in the morning on the day after the defendant's second failure to pay for his room, a hotel staff member heard a loud noise and smelled the odor of marijuana emanating from the defendant's room.  These observations combined with the defendant's failure to pay rent a second time and complaints about the defendant made by other hotel guests led the staff member to evict the defendant.  The staff member called the police to request assistance with the eviction.  State troopers responded to the request.

The staff member, with the troopers by her side, knocked on the defendant's door several times.  After the Defendant opened the door he attempted to close it immediately, but a trooper stepped into the doorway and prevented the door from closing.  The staff member identified herself to the defendant and indicated that the hotel required him to pack his belongings and leave the premises.  The trooper, noting the smell of burnt marijuana, asked the defendant about the odor.  The Defendant admitted to having smoked marijuana in his room.  The trooper noticed a black scale with white powder on top of it and bundles of money near a suitcase inside the room.  The trooper asked the Defendant about the scale and the money, and the defendant admitted that the money belonged to him but did not admit that the scale belonged to him.  At this point the troopers entered the room and seized cocaine, marijuana, joints, and MDMA.

The Second Department cited its precedent in People v. Lerhinan, 90 A.D.2d 74 (2d Dept. 11/22/1982), for the premise that nonpayment of hotel rent terminates any reasonable expectation of privacy in a hotel room.  However, unlike the defendant in Lerhinan who did not have an arrangement with the hotel for an extension of credit, the defendant here was permitted to pay for a previous night on the following morning.  Although this allowance was unofficially a one time boon, there was no indication that the Defendant was aware of the official or unofficial hotel policy.  Furthermore, the hotel's failure to disable the defendant's room card or to take steps to evict the defendant prior to the loud noise and odor, indicate that the hotel intended to allow the Defendant to stay the night.  On these grounds, the Second Department held that the County Court erred in finding the rental period had expired at the time of the search.

Turning to the circumstances of the eviction, the Second Department found that the complaints, noise, and odor of marijuana gave the hotel good cause to evict the Defendant.  When the hotel staff member took the justifiable affirmative step of contacting the police to assist in evicting the Defendant, the Defendant's expectation of privacy in the hotel room was extinguished.  The police were justified in searching the room because the trooper observed white powder on a scale in plain view during the eviction.  Thus at the time of the search the Defendant did not have any reasonable expectation of privacy in the hotel room because he was being justifiably evicted.  As such, the denial of the Defendant's motion to suppress the evidence recovered was affirmed.  (MM/LC)

COA & AD2 - New Decisions

There was a new decision last week from the Court of Appeals:

• People v. Moore (Ct. App. 9/2/2010) (SSM) - no IAC even though counsel did not request justification charge

In addition, there are new decisions from the Second Department.  (LC)

Rereading Jury Instructions Insufficient to Relieve Confusion

In People v. Abdul (2d Dept. 8/10/2010), the Second Department granted a new trial, because, the trial judge did not adequately answer a note from the jury.  Instead, the court reread the original instruction that caused the jury's confusion in the first place.

The defendant was charged with the murder of her daughter.  The People theorized that the defendant either killed the child personally or acting-in-concert with the child's father.  During deliberations, the jury asked a question about acting-in-concert and the time of death:

Can a person be considered 'in concert' by doing nothing to cause the death of a victim except for not doing anything after the death (Such as calling police, hospital, etc.)

The County Court responded by rereading its original instructions on accessory liability, criminal liability based upon a person's failure to to act upon a legally imposed duty, and the substantive law regarding the crime charged. However, while the Second Department conceded that some select circumstances allowing a verbatim restatement exist, merely rereading the instructions that led to the initial original confusion, as in this case, is error. Instead, the County Court should have clarified that "any act or omission by the defendant after the victim had already died could not form the basis of a finding of guilt and that the People bear the burden of providing beyond a reasonable doubt that the victim was alive when the alleged crime was committed."  (RB/LC)

AD1, AD2, AD3, & AD4 - New Decisions

It is summertime and the appellate courts are still pretty quiet.  However, the are a few, new decisions from the First, Second, Third, and Fourth Departments.  (LC)

Emergency exception to the Fourth Amendment

In People v. Leggett (2d Dept. 7/20/2010), the defendant barricaded himself in a friend’s apartment using appliances to block the door.  The police were concerned that the defendant might cause a gas leak if he moved the stove.  Thus, the police forced open the door, which was blocked with a refrigerator, and found the defendant in possession of three handguns and ammunition.  The defendant was arrested and, after denial of a motion to suppress physical evidence, pleaded to CPW 2° and four counts of CPW 3°.  On appeal, the defendant contended that the denial of his motion to suppress physical evidence was improper.

The Court of Appeals in People v. Mitchell, 39 N.Y.2d 173, cert. denied 426 U.S. 953 set forth a three prong test for analysis of the emergency exception to the Fourth Amendment against warrantless searches and seizures:

1. The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property;
2. The search must not be primarily motivated by an intent to arrest and seize evidence; and
3. There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.

However the United States Supreme Court determined in Brigham City v. Stuart, 547 U.S. 398, 404 that "[t]he officer's subjective motivation is irrelevant" to Fourth Amendment analysis, thus an inquiry into the subjective motivations of the police is no longer necessary in determining whether that Amendment was violated.

In affirming the trial court’s denial, the Second Department held, "Here, the objective facts observed by the police provided them with a reasonable basis to believe that an emergency was at hand, that the defendant or other persons may have been at risk of injury, and that the emergency was associated with the apartment searched." (MM/LC)

Blocking exit from parking lot constitutes a stop

In People v. Lopez (2d Dept. 7/20/2010), police officers in an unmarked car pulled in front of a vehicle occupied by the defendant in a parking lot behind a bar.  The police approached the vehicle, shined a flashlight inside, and observed the defendant holding what the arresting officer believed to be a bag of cocaine and a bag of marijuana.  The police removed the defendant from the vehicle and placed him under arrest.  The defendant then made incriminating statements to the police and was subsequently convicted by a jury of CPCS 5°, CPCS 7°, and Unlawful Possession of Marihuana.

The defendant appealed his conviction on the ground that the trial court erroneously denied his motion to suppress physical evidence and his statements to the police.  The Second Department reversed and held that the conduct of the police in pulling in front of the defendant's vehicle, and blocking his ability to exit the parking lot, constituted a stop, which required reasonable suspicion that the defendant or other occupants of the vehicle were either involved in criminal activity or posed some danger to the police.

The circumstances of the defendant's presence in the car were "capable of numerous innocuous explanations, and cannot be characterized as suspicious conduct."  Accordingly, the Second Department held that the stop was illegal and the resulting fruits of that Fourth Amendment violation---namely, the physical evidence and statements---should have been suppressed.  (MM/LC)

AD2 & AD3 - New Decisions

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

AD1, AD2, & AD3 - New Decisions

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