New York Criminal Law and Procedure

What is the "interest of justice" anyway?

"Interest of justice" is used in a couple of places in the CPL.  One is for a dismissal of an accusatory instrument at the trial level.  The test is well established and there is abundant case law explaining when a trial court should and should not grant a motion to dismiss in the interest of justice. 

There is another mention of the term in the CPL: Intermediate appellate courts (Appellate Division, Appellate Term, County Court)—but not the Court of Appeals except in death penalty cases—can reverse or modify a judgment in the interest of justice.  This allows the courts to reverse or modify for unpreserved questions and to reduce a sentence that is lawful but excessive.  Unfortunately, there is little guidance for courts to determine whether to exercise this discretion.

In a recent article, I explored the interplay of preservation and "interest of justice" jurisdiction.  I compare the federal and state standards and offer a test for courts to apply.  The article can be downloaded from my SSRN page.  (LC)

Standing must be raised before suppression court

Twenty-four years ago in People v. Stith, 69 N.Y.2d 313 (1987) the Court of Appeals held the People must raise the issue of a defendant's standing to challenge a warrantless search at the trial court level. However since that decision, three of the four Appellate Departments have allowed the issue of standing to be raised for the first time on appeal. 

In People v. Hunter (Ct. App. 6/2/2011) (7-0), the Defendant was arrested in 2005 after police conducted a warrantless search of his mother's apartment. During the search police found money used in a "buy and bust" operation. The Defendant moved to suppress the recovered buy money claiming it was the result of an unlawful search. 

At the suppression hearing, the People offered evidence that the search of the apartment was consented to, in writing, by the Defendant's mother. The People argued the entry and the search were justified under both the "exigent circumstances" and "hot pursuit" exceptions to the warrant requirement.  The People called two police officers to testify at the suppression hearing. No witnesses for the defendant were presented. The People never raised the issue of standing at the suppression hearing. The trial court denied the defendant's motion to suppress on the grounds of "exigent circumstances" and "hot pursuit." 

After denial of his motion the defendant pleaded guilty to criminal possession and sale of a controlled substance in the third degree and quickly appealed his conviction arguing the trial court erred in not suppressing the buy money.

The Fourth Department upheld the denial of defendant's motion to suppress the evidence on the grounds that the defendant had not established he had standing to challenge the search of the apartment. Interestingly, standing was never raised at the trial level; it was raised by the People for the first time on appeal.

The People must "alert the suppression court if they believe the defendant has failed to meet his burden to establish standing." Since the People never raised the issue of the defendant's standing at the suppression hearing or in its reply to the Defendant's motion papers, the Appellate Division cannot rely on standing to affirm the decision.  (MK/LC)

 

People can appeal Brady dismissal

The People have a right to appeal an order dismissing an indictment where the authority to dismiss arises from a delineated set of statutory provisions.

In People v. Alonso (Ct. App. 5/3/2011) (Lippman, CJ.) (5–2), the trial court dismissed the indictments with prejudice after a Brady violation.  The court reasoned that the magnitude of the violation required dismissal.  The dismissal was authorized pursuant to the catch all language in CPL § 240.70(1) which provides that a court considering a discovery violation may "take any other appropriate action."

The People appealed the order pursuant to CPL § 450.20, which sets forth the bounds of the People’s right to appeal dismissal of an indictment.  The Appellate Division dismissed the appeal without considering the merits.  It reasoned that the People lacked the right to appeal due to the authority by which the indictments were dismissed.  Section 450.20 enumerates a list of circumstances which give the People a right of appeal, but § 240.70 is not listed.

In reversing the Appellate Division and remanding for consideration of the appeal on the merits, the Court of Appeals held that the trial court lacked the authority to dismiss the indictment pursuant to § 240.70(1) alone.  It reasoned that § 240.70 empowers a court to construct a remedy for a discovery violation, but that the remedy may not include dismissal unless a separate source of authority is invoked.  The Court of Appeals found that the trial court dismissed the indictments by relying on the express authority set forth in CPL § 210.20(1)(h).  Section 210.20(1)(h) provides that a court may dismiss an indictment where a “legal impediment to conviction” exits.  The Court of Appeals explained that once the trial court found that the Brady violation required dismissal of the indictments a “legal impediment to conviction” arose, and the subsequent dismissal necessarily relied on the authority from § 210.20(1)(h).  Section 210.20 is listed in § 450.70, and thus the Court of Appeals held that the People had a right to appeal.

Judge Jones was joined by Judge Smith in dissent.  They argued that the court failed to follow the precedent set forth in People v Dunn, 4 N.Y.3d 495 (2005).  The dissenters pointed out that the Dunn court, in affirming dismissal of an appeal from a dismissal of an indictment, held that it would “not resort to interpretive contrivances to broaden the scope of CPL 450.20."  See Dunn, 4 N.Y.3d at 497.  The dissenters considered the conversion of a dismissal under § 240.70 into a dismissal under § 210.20 as the sort of “interpretive contrivance” proscribed in Dunn. (MM/LC)

Appeals: the DA "rubber room"?

Assistant district attorneys have been in the news recently but not in a good way.  A Bronx prosecutor is facing a DWI charge while a Niagara County ADA was terminated after being accused of Aggravated Harassment and Stalking.  The Bronx prosecutor, Jennifer Troiano, was moved to the Appeals Bureau, the Daily News reported.  That paper characterized the move as a "demotion" to the District Attorney's Office's "Rubber Room."  An unknown source told the News, "Problematic prosecutors get buried there."  I was very surprised to read this characterization.  In my time in the Appeals Bureau in the Bronx, I found my fellow attorneys to be the best and brightest of the office—fantastic writers who knew every inch of the Penal Law and CPL.  It was not a dumping ground for "problematic prosecutors" as the unnamed source in the News claims. 

These cases raise a bigger issue, though, about what chief prosecutors should do if one of their assistants is arrested.  The arrest triggers all sorts of problems, including potential conflicts of interest, implications for police-prosecutor relations, credibility with the court, and public perception. On the other hand, the accused has certain rights, first and foremost being the presumption of innocence.  It seems like the best course of action is to follow the practice used by most police departments in this type of situation: either suspend with pay or put the person on administrative duty.  But appellate work is not what I mean by "administrative duty."  It is real, substantive work and the People deserve ADAs handling it to be focused and effective.  A prosecutor with charges of his or her own should be working the photocopier, not handling cases of any kind.  (LC)

Failure to raise statute of limitation defense on the record does not necessarily constitute IAC

An IAC claim based on failure to raise a statute of limitations defense must be denied when that omission constituted a legitimate trial strategy.  In People v. Evans (Ct. App. 3/31/2011) (Pigott, J.) (6-1), the Defendant was indicted on three counts of Murder 2° and one count of Manslaughter 1° for events that took place approximately eight years earlier.  At a bench trial, defendant was acquitted of Murder but convicted of Manslaughter.  Trial counsel did not mention the expiration of the five-year statute of limitations for Manslaughter on the record.

Defendant’s CPL § 440.10 motion to vacate due to IAC was denied by the trial court with the belief that defendant could raise IAC on direct appeal.  Application for leave to appeal the denial of the motion was denied by the Appellate Division.  On direct appeal, the Appellate Division affirmed the conviction with the indication that the IAC claim concerned matters outside of the record and therefore could not be reviewed on appeal but could only be brought in a CPL § 440.10 motion.  In short, the Defendant was trapped in  appellate limbo.

The Court of Appeals provided an aspirational instruction to the Appellate Division to consolidate CPL § 440.10 motion appeals with direct appeals in the future.  The court nevertheless  conducted its review of defendant’s case on the limited record available.  The court held that failing to mention the statute of limitations as a defense was objectively a legitimate trial strategy, and that trial counsel’s subjective lack of awareness of the defense was immaterial.  The court’s objectivity analysis focused on the strategy of giving the trier of fact an avenue of finding defendant guilty of a lesser charge.  Had the Manslaughter charge been dismissed, the trier of fact would have been left with choosing between Murder 2º and an acquittal. 

In dissent, Judge Jones argued that defendant’s IAC claim should be granted and his conviction vacated.  The dissent disagreed with the presumption of legitimacy that the majority afforded to trial counsel’s omission, and reasoned that there was no support for a finding that failure of trial counsel to discuss the defense on the record was a legitimate strategy.  The dissent pointed out that a defendant may consent to having a time barred charge considered by a trial court, but noted that the record here did not suggest that trial counsel was sufficiently cognizant of the defense to consciously consent to waiving it.  (MM/LC)

Importance of the CPL § 30.30 reply brief

To make a CPL § 30.30 motion, a defendant must first demonstrate that the People’s declaration of readiness was past the permissible number of days.  Then, the People must demonstrate a factual and legal basis to exclude enough days to bring the total charged time below the maximum limit.  The defendant bears the ultimate burden to prove that those purported exclusions do not have a basis in law or fact.  If the defendant fails to take the last step, he will have failed to preserve a question of law for appeal.  In essence, this framework requires a defendant to file a reply brief that rebuts the People’s opposition papers.

In People v. Beasley (Ct. App. 3/24/2011) (Ciparick, J.) (6-1), the Court of Appeals applied this test to conclude that the Defendant failed to preserve a question of law for the court to consider.  (Remember that the Court of Appeals, unlike the Appellate Division, can only consider questions of law.  It does not have factual review power or discretionary authority to reverse in the interests of justice.)  The Defendant made a motion pursuant to CPL § 30.30.  The People argued, in response, that a 42 day period was excludable.  The period started when the court ordered the production of Grand Jury minutes and ended with the denial of the Defendant’s motion to dismiss.  The People argued that the entire period was excludable.  The Defendant did not file any responsive papers. 

The Court of Appeals affirmed, finding a lack of preservation.  The Defendant argued on appeal that 13 of the 42 days were chargeable because the People had failed to produce the Grand Jury minutes during this time.  The Defendant, however, had not argued below that the 42 day period had to be separately analyzed and that 13 of those days were chargeable.  “It was defendant's duty, either in its initial submission or in a reply, to draw the court's attention to the discrete periods that he now claims should have been chargeable to the people pursuant to CPL 30.30 and to explain why. Not only did defendant fail to highlight the 13 day period, he failed to offer any legal basis for his claim that the entire 42 day period was chargeable as post-readiness delay, or rebut in any way the People's contention that the 42 day period fell within one of the exemptions.”  It is immaterial that the trial court had before it all of the information it needed to decide the issue.  The Defendant has the burden of proving his CPL § 30.30 case.

What is the lesson to be learned from this case?  Defense counsel must file a reply to the People’s response to a CPL § 30.30 motion.  In his reply brief and affirmation, counsel must prove—both factually and legally—that the People’s calculation of excluded time is incorrect.  

(Note that there is a typo in the court’s opinion.  Halfway through the opinion, the court refers to April 17, 2005.  It should read August 17, 2005.)

(LC)

Court’s discretion to discharge a sleepy juror

Proper jury service requires that the juror remain awake and attentive during the trial.

In People v. Wells (Ct. App. 12/14/2010) (6-1), during voir dire, the trial court discharged a sworn juror as incapable to serve, based on information the juror neglected to disclose when the parties questioned him. After being sworn, the juror claimed that his occupation as a night shift worker might impair his ability to stay awake during the trial.  The defense objected to the discharge on the ground that the trial court could bar the juror from working nights until the conclusion of the trial.  The trial court declined to issue the order and excused the juror.

On appeal, the Defendant asserted that under CPL § 270.15 the trial court lacked the authority to discharge the juror.  The Court of Appeals held that this claim was not preserved for appellate review because the Defendant failed to raise an objection based on § 270.15 during trial.  However, the Court of Appeals indicated that it was not an abuse of discretion for the trial court to apply the authority imparted under § 270.15, to discharge a sworn juror as incapable, based on a prospective assessment of the juror’s ability to serve.

In dissent, Judge Lippman contrasted the authority imparted under CPL § 270.15 and CPL § 270.35 and argued that the Defendant's argument was properly preserved.  Judge Lippman noted that prior to empanelment the parties, not the court, control jury selection as guided by statute.  Section 270.15 controls the role of the trial judge prior to the commencement of the trial.  Judge Lippman pointed out that under § 270.15 a trial judge may not interfere with jury selection unless it is evident that a sworn juror is incapable of service.  Thus, Judge Lippman dissented from the majority’s approval of discharge based on prospective assessment of a juror’s ability to serve.  Section 270.35 is applicable after the jury is empanelled and imparts greater authority to the trial judge.  Judge Lippman argued that even under the expanded but inapplicable authority of § 270.35, a discharge without an indication of unavailability, bias, misconduct, or lack of qualification is not proper. (MM/LC)

GORA determination not appealable

In 2007, the New York City Council adopted the Gun Offender Registration Act.  Like SORA, GORA requires particular offenders (those with gun-related convictions) to register as a "gun offender" with the NYPD.  Failure to comply with GORA is a misdemeanor. 

In People v. Smith (Ct. App. 12/16/2010) (Ciparick) (7-0), the defendant challenged his GORA registration as part of his direct appeal.  The People argued that this was not an appealable decision, because it was not part of the judgment of conviction.  The Court of Appeals concurred, noting:

• SORA and GORA are quite similar.  SORA determinations were non-appealable until the Legislature created a civil appeal mechanism.
• GORA's registration and notice requirements are not a tradition, technical, or integral part of sentencing.  GORA is not dependent on a sentencing court ordering it.  The law is instead triggered by the fact of conviction: "A gun offender shall register with the department at the time sentence is imposed."
• GORA is not part of the uniform order of commitment.

(LC)

 

 

Depraved indifference under Suarez or Feingold? Doesn't matter, says the COA

Last week, the Court of Appeals decided an interesting depraved indifference murder case: People v. Taylor (Ct. App. 11/18/2010) (Jones, J.).  The defendant struck the victim over the head and then dumped her body on the roof of his building, knotting a plastic bag tightly around her head.  At trial, the defense made a motion for trial order of dismissal that specifically referenced Suarez.  On appeal, the defendant argued that People v. Feingold, which had been decided shortly after the judgment of conviction, required reversal.

The Court of Appeals first found that the legal sufficiency claim was properly preserved even though the defense only referenced Suarez at trial.  Suarez set forth two situations in which a one-on-one killing could be depraved, rather than intentional: (1) without intent to inflict serious injury or death, the defendant nevertheless abandoned a helpless victim in a situation in which he or she is likely to die; or (2) "acting with a conscious objective not to kill but to harm — engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim."  "Feingold, decided after defendant's conviction here, did not reject, but extended, Suarez's reasoning," said the court.  Feingold explicitly stated that depraved indifference was its own mental state.  Suarez stated the circumstances in which that mental stated could be proved.  Thus, preservation under Suarez was preservation under Feingold.

This holding underscores my long-held belief that there were actually two different legal principles evolving between Register and Feingold.  The first was the basic question of whether depraved indifference is a culpable mental state (this affects questions like whether intoxication is a defense).  The second is what amount of proof is required to show depravity.  Early post-Register cases afforded great deference to the jury.  Later cases (e.g., Suarez) limited the types of killing that could constitute depraved indifference.  

Turning to the merits, the court found that this was a classic, intentional, one-on-one killing.  The defendant struck the victim with a blunt object and then disposed of her body.  There was no torture or abandonment of a helpless victim.  Thus, the conviction was reversed.  (LC)

AD1: Reading a jury note verbatim is not required

Failure to recite the contents of a jury note verbatim to the parties is not necessarily a mode of proceedings error.

In People v Donoso (1st Dept. 10/12/2010), during deliberations, the jury sent a note asking the court to clarify charging instructions.  Before reconvening the jury, the court advised the parties of the contents of the note by oral summary.  At this time, the court also advised the parties of its intended response to the jury note.  When the jury reconvened, the court read the exact contents of the note aloud to the jury and the parties, and provided the jury with further instruction.  The jury then resumed deliberations and found the defendant guilty of CPCS 5°.  During sentencing, defense counsel raised, for the first time, an objection to the court’s response to the jury note.  Defendant argued on appeal that the trial court’s response to the jury note constituted a mode of proceedings error.  The First Department unanimously affirmed the conviction and held that neither a mode of proceedings error nor a preserved claim were present.

The Court of Appeals held in People v. O’Rama, 78 N.Y.2d 270, 277 (1991), that a trial court in receipt of a jury note is responsible for providing meaningful notice to the parties of the specific content of the note and to provide a meaningful response to the jury.  In O’Rama, the Court of Appeals outlined a process for handling jury notes, but the court indicated that the process was meant as a guideline not as a strict procedure.  The purpose of the process is to allow counsel the opportunity to provide input into the response the court will give to the jury.

The First Department reasoned that defense counsel was made aware of the substance of the note prior to the court’s response to the jury, and thus the failure of the court to read the note verbatim had no effect on the defendant’s opportunity to provide input.  Thus, no mode of proceeding error was committed because the defendant was not deprived of a substantial opportunity to participate in his trial.  Furthermore, the failure of defense counsel to raise an objection at the time when notice of the trial court’s intended response was provided renders the claim unpreserved for appellate review.  (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) 

Late notices of appeal: COA offers a remedy

Of interest to appellate practitioners:

What happens when defense counsel files a notice of appeal late (i.e., more than 30 days after the judgment)?  CPL § 460.30 provides a partial remedy.  Within a year of the deadline, the defendant can ask the appellate court for permission to file a late notice of appeal.  What if, however, a defendant does not ask for permission until after that point?  Is he out of luck?  No, says the Court of Appeals.  In two consolidated appeals, People v. Syville and People v. Council (Ct. App. 10/14/2010) (Graffeo, J.) (7-0), the Court of Appeals held that the writ of error coram nobis is available to defendants in this type of situation.  

Although there is no constitutional right to an appeal, if a state does offer an appellate procedure, it must comply with due process in its administration.  The Court of Appeals held:

The Due Process Clause prohibits a defendant from being denied the right to appeal as a consequence of the violation of another constitutional right — the right to the effective assistance of counsel on direct appeal (see Evitts, 469 US at 400). Hence, to establish a constitutional violation in this context, a defendant need not identify potentially meritorious issues that would be raised on appeal; the defendant need only demonstrate that, as a result of counsel's deficient performance, appellate rights were extinguished.

Thus, the court concluded that a defendant must be allowed to establish that his right to appeal was lost because of his attorney's error.  The more pressing question for the court was which mechanism to use.  A 440 motion?  No, because CPL Article 440 provides for vacatur of the judgment; here, the defendants are only requesting the chance for an appeal.  Before the CPL was created, "late notice of appeal claims" were typically raised in the trial court in a 440-ish type of motion: coram nobis.  If the trial court concluded that counsel failed to file the notice of appeal, the defendant was re-sentenced nunc pro tunc, which started anew the 30 day window for filing a notice of appeal.  But with the creation of the 440 motion procedure, the Court of Appeals concluded in People v. Corso that this "Montgomery claim" (named after People v. Montgomery, 24 N.Y.2d 130 (1960) was no longer available.  

Now, the Court of Appeals has resurrected Montgomery---by permitting coram nobis applications to argue for a late appeal---but with a twist.  These new coram nobis must be asserted in the appellate court, not the trial court.  The court left open, for another day, whether a defendant may be denied coram nobis relief because of his own due diligence in prosecuting an appeal.  (LC) 

Intent for Burglary 2º when the defendant commits strict liability crimes inside a dwelling

In People v Reyes (1st Dept. 9/14/2010), a jury convicted the defendant of Burglary 2°, four counts of Sexual Abuse 3°, and Endangering the Welfare of a Child.  The charges were based on evidence that the defendant approached a fourteen year old girl on the street, unlawfully entered a dwelling with the intent to engage in acts of sexual contact with the girl, and did engage in illegal acts with the girl.

The deliberating jury sent a note asking for a clarification on the impact of the victim’s age on the intent element of the Burglary 2° charge.  The relevant language of Penal Law § 140.25(2) states that "A person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when . . . 2. The building is a dwelling."  The trial court responded that the age of the victim did not matter.  Defense counsel objected to this answer and requested that the court reread to the jury the original jury instructions pertaining to intent for burglary.  The trial court overruled the objection.

The defendant argued that his commission of a strict liability offense was not sufficient to satisfy the intent element of Burglary 2°.  After discussing preservation, the Appellate Division rejected this argument on the ground that the Penal Law defines intent in terms of conscious objective to cause a result or engage in conduct.  Thus, the court concluded that the People did not have to prove that defendant entered the building intending to commit a crime.  The People had only to prove that "defendant entered the building intending to have sexual contact with the victim."  The fact that the victim was under seventeen, the controlling aspect of the strict liability crimes for which the defendant was also convicted, was irrelevant to the intention necessary for the jury to convict the defendant of Burglary 2°.

In a concurrence, Justice McGuire agreed with the majority’s alternative holding, but added additional rationale by providing several illustrative examples of the maxim that ignorance of the law is no excuse.  Additionally, he noted that advancing the defendant’s interpretation of the intent element of Burglary 2° would be in conflict with Penal Law § 130.10(1).  Section 130.10(1) provides an affirmative defense where the defendant did not know the victim was incapable of consenting because of a mental disability, mental incapacitation, or physical helplessness.  Ignorance of the victim’s age is not an aspect of § 130.10(1), and therefore criminal liability attaches regardless of whether the defendant was aware of the victim’s age.  The defendant would limit criminal liability when the victim’s age was unknown, an assertion Judge McGuire concluded was in conflict with the legislative purpose. (MM/LC)

Pleading a gravity knife charge

The Court of Appeals recently held that an unsupported conclusory statement in an accusatory instrument that an object is a per se weapon under Penal Law Article 265 is a violation of the reasonable clause requirement.  This amounts to a jurisdictional defect.

In People v. Dreyden (Ct. App. 6/15/2010) (Pigott, J.) (6-1), the defendant pleaded guilty to CPW 4° after a knife was found in his possession.  The plea was in exchange for a sentence of time served.  The defendant then appealed his conviction on the ground that the accusatory instrument was jurisdictionally defective, because it did not include any non-conclusory allegations sufficient to establish the basis of the arresting officer’s belief that the knife recovered from the defendant was a gravity knife.  The Appellate Term affirmed the judgment of conviction, holding that an accusatory instrument can satisfy jurisdictional requirements without containing the statutory criteria for a gravity knife.

The Court of Appeals reversed, holding that an accusatory instrument is jurisdictionally defective if it fails to supply the defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy.  An arresting officer can satisfy this test by briefly explaining how he or she formed the belief that the object observed met the statutory requirements.  A gravity knife has two requirements: (1) a blade that "is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force;" and (2) the blade, "when released, is locked in place by means of a button, spring, lever or other device."  Here, the accusatory instrument merely stated, in conclusory fashion, that the item was a gravity knife.

In dissent, Judge Smith agreed that the accusatory instrument was defective, but argued that the defect was not jurisdictional.  He noted that no element of the crime with which the defendant was charged was omitted from the accusatory instrument and asserted that the court failed to demonstrate how the defendant was deprived of fair notice or put at risk of double jeopardy by the defect.  Additionally, the dissent argued that the defendant’s failure to raise the jurisdictional challenge at the onset of his trial did not rise to the level of fundamental procedural irregularities that permit raising unpreserved issues at appeal.  Under People v. Agramonte, 87 N.Y.2d 765, 770 (1996), only errors that go to the essential validity of the proceedings conducted may be raised on appeal without being preserved below.  Finally, the dissent argued that calling this type of defect “jurisdictional” served no useful purpose and incorrectly increased the number of situations where trivial errors make the process of prosecuting and punishing offenders more difficult. 

I wonder if this case represents a backtrack from Kalin.  Kalin seemed to adopt a more flexible standard for judging facial sufficiency by focusing on the purposes of accusatory instruments (notice to the accused, guarding against double jeopardy violations, and enabling the defendant to prepare for trial).  This case seems to say that, with some crimes, the deponent must provide additional evidence to support the various elements of a crime. (MM/LC)

AT2 - New Decisions

There are new decisions from the Second Appellate Term, including an interesting case where the court rejected an Anders brief.

COA, AD1, & AD4 - New Decisions

There are new decisions from the Court of Appeals:

• People v. Backus (Ct. App. 5/11/2010) - An interesting case for those interested in the nuances of appellate remedies.  At the Appellate Division, the defendant's  sentence was vacated because his consecutive sentences were illegal.  The case was remanded for resentencing.  The intermediate appellate court went on to authorize the People to move to vacate the plea and set aside the conviction in its entirety.  On the defendant's appeal to the Court of Appeals, the People argued that the sentences were properly served consecutively.  However, since they did not cross-appeal from the Appellate Division order, the Court of Appeals could not consider the argument.  The Court of Appeals agreed, however, with the defendant's argument that vacatur was not possible.  The defendant must be sentenced in accordance with the law.  The guilty plea cannot be vacated under the circumstances.
• People v. Gravino (Ct. App. 5/11/2010) (Read, J.) - SORA and plea conditions are collateral, not direct, consequences of a guilty plea.  Therefore, a defendant does not have to be advised of them before pleading guilty.

In addition, the First and Fourth Departments posted new decisions.  (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)  

Does an appellate attorney have a conflict of interest when the defendant wants him to pursue an IAC claim?

In People v. Jones (3d Dept. 2/25/2010) (Stein, J.), the Third Department unanimously rejected the defendant's ineffective assistance of counsel (IAC) claims.  The defendant initially complained that his attorney failed to make a motion to dismiss the indictment on grounds of impaired grand jury proceedings; the defendant claimed the proceeding was defective because he appeared at the grand jury in prison attire.  However, the Third Department noted that the defendant's allegations and the record did not demonstrate that the defendant was compelled to wear the prison clothing.  Moreover, the court noted that defense counsel, in his motion to dismiss the indictment, did "draw[] specific attention" to defendant's wearing a jail jumpsuit at the grand jury.

The defendant, pro se, also argued that, on appeal, his appellate attorney had a conflict of interest because the attorney had also represented him at trial.  Thus, the defendant argued that he had an inherent self-interest in not pursuing an IAC claim based on the facts that occurred at the trial court level.  The court applied a totality of the circumstances analysis and reasoned that the IAC claim was meritless where the defendant's appellate counsel displayed "a competent grasp of the facts, the law and appellate procedure, supported by appropriate authority and argument" (internal citations omitted). (JTR/LC)

COA - New Decisions

The Court of Appeals announced new decisions today:

• People v. Abney (Ct. App. 10/27/2009) (Read, J.) - expert testimony on eyewitness reliability
• People v. D'Alessandro (Ct. App. 10/27/2009 (Lippman, C.J.) - Appellate Division incorrectly decided defendant's subsequent coram nobis application as a motion for reargument of the original application.  Reversed and remanded for determination on the merits.

More on Abney later.  (LC)

Search of defendant's pocket unlawful ... but harmless error?

In People v. Lazcano (4th Dept. 10/2/2009), the Fourth Department affirmed the defendant's conviction for Assault in the Second Degree.  One of the issues was a search of the defendant in which a police officer, who did not testify at the suppression hearing, recovered a knife from the defendant's pocket.  The People established, through a fellow officer, that there was reasonable suspicion to stop the defendant and frisk him for weapons.  However, the testifying officer was unable to establish, to the court's satisfaction, that the searching officer was justified in reaching into the defendant's pocket.  The testifying officer's observations were insufficient to establish what, if anything, the searching officer may have felt during the frisk.

Nevertheless, the court concluded that the error was harmless because "there is no reasonable possibility that the court's error in refusing to suppress the knife might have contributed to the conviction."  We are not told much about the facts of the case---other than it was an assault prosecution---but I find it hard to believe that showing the jury a weapon recovered from the defendant would not have had some effect on the verdict.  Perhaps the only issue was justification/self-defense?  (LC)

SCIs and compliance with CPL § 195.10 (updated)

Felony defendants have a constitutional right to indictment by Grand Jury.  Certain violations of this constitutional right are jurisdictional in nature; thus, they serve a purported waiver and may even be raised for the first time on appeal. 

In certain cases, a defendant may waive indictment and enter a plea to a Superior Court Information.  There are four requirements, however, for this procedure: (1) it is not available if  the local criminal court accusatory instrument charged a Class A felony punishable by death or life imprisonment (i.e., not the A-I or A-II drug crimes); (2) the defendant must have been held for Grand Jury action by a local criminal court; (3) the District Attorney consents to the waiver; and (4) the various procedures (written waiver, etc.) of Article 195 have been complied with.  Regarding the second requirement, a defendant cannot be directly charged by an SCI.  In other words, it cannot be used as a substitute for a direct indictment.  A defendant may waive indictment only if he has first been charged in a local criminal court (but not a Class A felony).

Sometimes the record on appeal will be sketchy as to whether there were local criminal court proceedings.  Defendants on appeal may claim that the second requirement was not satisfied and, therefore, the purported waiver of indictment and SCI were invalid.  This was the issue raised in People v. Dennis (3d Dept. 10/1/2009).  The Third Department rejected the defendant's argument, finding that there was sufficient evidence that the defendant had been held for Grand Jury action.  First, the record indicated that the case had been transferred to County Court.  Thus, logically, it must have been transferred from a local criminal court.  Moreover, County Court's order approving the waiver and SCI indicated, albeit summarily, that CPL § 195.10 had been complied with.  These facts, coupled with the presumption of regularity accorded to judicial proceedings and the failure of the defendant to show contrary evidence, were sufficient to reject the defendant's claim on appeal.

Nevertheless, the better practice is for either the papers or, preferably, the record in Superior Court to indicate that the defendant had been held for Grand Jury action by a local criminal court.  Ideally the local criminal court should be named and a docket number provided for that underlying action.  Perhaps the prosecutor, before the waiver is executed in Superior Court, should state on the record, "Your Honor, the defendant before the court was previously charged, by felony complaint, in the local criminal court of ____, index number ____.  On ____, that court held the defendant for Grand Jury action.  Now, today, he desires to waive indictment and enter a plea to a Superior Court Information."  This simple recitation would make the record crystal clear and prevent any confusion on appeal.  (LC)

AD3 Details Reasons for Not Lowering Sentence in the Interest of Justice

Intermediate appellate courts have the power to reduce a defendant's sentence as an exercise of discretion and in the interest of justice, notwithstanding the legality of the sentence or the lack of abuse of discretion by the sentencing court.  See CPL § 470.15(6)(b).  Typically, an Appellate Division will state summarily either that it is or is not reducing in the interest of justice.  Rarely does the court explain why.

In People v. Williams (3d Dept. 9/24/2009), a unanimous panel of the Third Department affirmed a defendant's sentence of 1-to-3 years for Vehicular Manslaughter 2º and DWI.  In refusing to reduce the sentence, the court stated:

While we acknowledge that this Court has broad, plenary power to modify a sentence that it considers unduly harsh or severe, such is only done in extraordinary circumstances or where the trial court has abused its discretion, which we fail to find here. While there may have been mitigating factors present that County Court considered in issuing defendant's sentence, the presentence investigation report detailed her "self absorption" and "apparent indifference to the life she took." Thus, noting that it was considerably less than the possible maximum, we decline to disturb defendant's sentence.

(citations omitted).  (LC)

COA & AD1 - New Decisions

The Court of Appeals announced a new decision today in People v. Kolupa (Ct. App. 9/22/2009) (SSM), finding that the defendant failed to preserve his claim that the People did not corroborate a child victim's testimony.  Although a motion to dismiss was made at the close of the People's case, the defendant went on to present his own evidence but did not renew his original motion.

There are also new decisions from the First Department.  (LC)

AD3 reduces sentence in the interest of justice

In People v. Tesar (3d Dept. 8/6/2009), the defendant pleaded guilty to Grand Larceny 2º and Tampering with Public Records 1º.  She was formerly the clerk/treasurer of the Village of Port Henry.  She stole over $150,000 from the Village coffers.  After charges were filed, she pleaded guilty and waived her right to appeal.  No sentencing promise was made to her.  The defendant was sentenced to consecutive terms of 5-to-15 and 2-to-7 years.

The Appellate Division found that the trial court failed to advise the defendant of the maximum sentence she faced.  Accordingly, the court found the appellate waiver to be invalid.  Interestingly, the court also used this fact as part of its rationale to lower the defendant's sentence in the interest of justice:

Circumstances that merit consideration with regard to defendant's claim that her sentence is harsh and excessive are that defendant has no prior criminal record and she paid full restitution by the time of sentencing. In view of these factors and the failure to formally advise defendant of all relevant considerations at the time of the plea, we exercise our interest of justice jurisdiction and modify the sentence by directing that the terms of imprisonment for each crime run concurrently.

(emphasis added) (LC)

Update to restitution cases out of AD4

As I have blogged about before, a trial judge in the Fourth Department had been using his law secretary to conduct restitution hearings.  In a series of decisions, the Fourth Department held that this was improper.  The court reached the issue even though no objection was made below.  The court's decisions were based on its interest-of-justice jurisdiction.  Today, the Fourth Department sua sponte amended its decisions to indicate that its reversals were on the law.  Regarding preservation, the court held that no objection was necessary because the error affected the mode of proceedings.  The amended decisions are here and here.  As a practical matter, the change means that the Court of Appeals can review the case, if leave to appeal is granted.  (LC)