New York Criminal Law and Procedure

Summary affirmance of reversal on 4th Amendment grounds

Yesterday, the Court of Appeals summarily affirmed the Appellate Division's reversal of the conviction in People v. Williams (Ct. App. 9/13/2011).  The intermediate appellate court had found that the Defendant was arrested without probable.  Although the Court of Appeals noted that "different conclusions may not have been unreasonable," there was nevertheless evidence in the record to support the Appellate Division's decision.  That foreclosed further review by the Court of Appeals, since probable cause is a mixed question of law and fact. (LC)

Reversal for right to public trial violation

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

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

AD1 orders new suppression hearing because counsel not present during part of hearing

In People v. Strothers (1st Dept. 8/11/2011) (4-1), the Defendant was the driver of a car with two passengers.  The DEA had identified the passengers through a wiretap investigation as high level drug dealers.  The threesome was arrested in the Bronx.  Defendant moved to suppress, arguing that there was a lack of probable cause to arrest him.  The suppression court conducted a joint hearing on the Defendant and the co-defendants' motions to suppress.  For some portion of the first witness' testimony, however, Defendant's attorney was not present in the courtroom.  Apparently he was covering another appearance.

The First Department found a violation of the right to counsel and ordered a new suppression hearing.  It rejected the People's arguments as to preservation (not required), harmless error (it was not), and that the unrepresented testimony did not pertain to the Defendant, only his co-defendants (not true, said the majority—the unrepresented testimony related to whether the police employed proper procedures).

Justice Catterson dissented, relying principally on what he saw as the strength of the People's evidence.  (LC)

DNA collection from cigarette held not to violate indelible right to counsel

Ever since DNA testing became prominent, police have tried all sorts of ways to collect DNA samples from suspects when there was insufficient evidence to get a court order.  One of the classic "tricks" is to offer a cigarette to a suspect and collect DNA from the saliva on the butt.

In People v. Gibson (Ct. App. 6/14/2011) (7-0), the police did just that.  The circumstances of the collection, however, raised an "indelible right to counsel" question.  The Defendant was suspected of a robbery.  He was arrested on a bench warrant in an unrelated matter in which he had counsel.  While locked up, the Defendant asked if he could see the detective, whom he was friendly with.  The detective then had a conversation with the Defendant about general matters.  Neither the robbery nor the unrelated criminal matter were discussed.  During the conversation, the two smoked cigarettes.  The detective later brought the cigarette butt to the lab for testing.  

A unanimous Court of Appeals held:

[T]he detective here did not ask defendant about a criminal case, and his actions — displaying a pack of cigarettes and providing one to defendant at his request — were not reasonably likely to elicit an incriminating response. The DNA that defendant voluntarily deposited on the cigarette butt was not a "response" or "statement" subject to exclusion under New York's right to counsel rules because the transfer of bodily fluids was not a communicative act that disclosed "the contents of defendant's mind."

(LC)

Unilateral triggering of indelible right to counsel? COA says no.

Last month, the Court of Appeals decided an interesting case on the indelible right to counsel, People v. Pacquette (Ct. App. 6/7/2011) (Read, J.) (5-2).  The Defendant was suspected of a homicide in Brooklyn and he made inculpatory statements on that crime that he sought to have suppressed.  The statements were made after the Defendant had been arraigned in Manhattan on drug charges.  Brooklyn detectives had already put the Defendant in a lineup in Brooklyn and were sitting with him in Manhattan Criminal Court.  The Defendant was ROR'd and was then arrested by the Brooklyn detectives.  He then made the incriminating statements.

The question boiled down to whether the Defendant's attorney on the drug charge sufficiently communicated his involvement in the Brooklyn case such that the indelible right to counsel would have attached.  The court looked at the conflicting testimony of the various participants, including the attorney and the detectives, and concluded that he had not.  Specifically, the Defendant argued that his attorney's "neglect to 'specify' to the detectives whether he represented defendant in 'the drug case or the homicide case or both,' created an ambiguity causing the indelible right to counsel to attach."  He argued that it at least warranted sending the case back for a further hearing. 

The Court of Appeals disagreed, holding, "We have never held that an attorney may unilaterally create an attorney-client relationship in a criminal proceeding in this fashion, and decline to do so now. ... If he had said in open court that defendant 'was represented by counsel and that [the police] should not question him,' the prosecutor (or the judge) would have had the occasion and the opportunity to ask him flat out whether he was defendant's lawyer in the murder case, as the judge and the prosecutor later did at the Huntley hearing and the trial, respectively. Moreover, there is no ambiguity here, as there was in Ramos, about whether defendant may have intended to invoke his right to counsel before making the inculpatory statements." 

The facts of the case are a bit convoluted, but the decision is worth a read if you have a right to counsel issue in a case.  (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)

 

Identification held not to be unduly suggestive

The Court of Appeals, in Peopdle v. Gilford (Ct. App. 5/3/2011) (7-0), held that evidence in the record supported that an identification of a defendant under police spotlights, exiting a police car wearing handcuffs and subject to visible flanking in front of the witnesses, was not unduly suggestive.

One victim suffered a mortal stab would in his chest at an indoor roller skating rink called “Skate Key” in the Bronx; another suffered a nearly fatal stab wound. Immediately after the stabbing, a female witness who was helping one of the victims, identified the Defendant as the attacker, to a police sergeant assigned to the area outside of Skate Key. The witness and sergeant pursued the fleeing Defendant and were later joined by two uniformed police officers.  The defendant was apprehended.  An officer took the Defendant to the hospital with the hopes of doing a showup with the first victim.  However, the officer was told that the victim was being attended to by physicians and could not do a showup. 

Nevertheless, the officer stopped two individuals who appeared distraught.  They indicated that they were at the hospital because they were friends with the first victim.  The officer asked “if they knew anything about what had happened at Skate Key and they said that they did.” The officer did not know that the female witness had already identified the Defendant to the sergeant as the attacker. The witness and companion identified the attacker under a bright light while the Defendant was in handcuffs. This took place no more than 45 minutes after the crime.

The trial judge denied the defendant’s motion to suppress the identification evidence because exigent circumstances, specifically, Jones’s imminent death, existed; further, the showup was not unduly suggestive, even though the defendant was “spotlighted by takedown” lights, taken from a police car wearing handcuffs and “flanked by police officers in plain view.” Additionally, defense counsel unsuccessfully argued that the showup was impermissibly duplicative because the officers had to have known that a showup was unnecessary to establish probable cause since the defendant was already under arrest. The judge responded that the chain of events was “unbroken,” “related in temporal and geographic proximity” and was necessary in light of the circumstances.

The Appellate Division found no basis for suppression and the Court of Appeals affirmed; the Court explained that the suppression inquiry is whether the showup was reasonable under the circumstances and then if it was unduly suggestive.  As both are mixed questions of law and fact, and the trial court and Appellate Division's findings were supported by evidence in the record, further review by the Court of Appeals was not possible. (RB/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)

Gravity knives and testilying

I have previous written and blogged about testilying—the phenomenon of some police officers committing perjury to further their cases.  The police who commit testilying view it as a small indiscretion serving a greater good, the conviction of a criminal.  Testilying often comes about in the Fourth Amendment/suppression hearing context, where the police officer need only mouth certain "magic words" that establish probable cause, reasonable suspicion, or some other lesser standard.

In People v. Brannon (Ct. App. 5/5/2011) (Pigott, J.) (6-1), the issue was whether, in two companion cases, the police officers established sufficient reasonable suspicion that the defendants had gravity knives.  The Court of Appeals held that reasonable suspicion in the gravity knife context requires specific facts that led the police officer to believe that the object was a gravity knife and not some other type of knife.  But, ordinarily, a person cannot tell if an object is a gravity knife unless it is opened.  The court responded:

Reasonable suspicion, however, does not require absolute certainty that the knife the individual is carrying is a gravity knife. Rather, the issue is whether, under the circumstances, the officer possessed specific and articulable facts from which he or she inferred that the defendant was carrying a gravity knife.

Using this standard, the court was able to distinguish the two cases.  In Brannon, while the officer saw the "hinged top of a closed knife" and saw the "outline" of a knife in his pocket, he was unable to testify that it was a pocket knife.  However, in Fernandez, the officer's testimony was that he saw the "head" of a knife and "based on his experience that gravity knives are commonly carried in a person's pocket, attached with a clip, with the 'head' protruding."

Judge Jones dissented from Fernandez but concurred in Brannon.  He noted a key problem with the court's articulated standard:

In my view, had the officer in Brannon merely testified that he believed a gravity knife, and not a pocketknife, was present, then the outcome in that case would have been different. Instead of requiring the police and the People to articulate a specific factual basis for reasonable suspicion justifying these stops, in these types of cases, prosecutors will now be encouraged to present police officers who can describe their training and experience with gravity knives, and testify that a gravity knife, and not a "typical pocket knife", was observed. Given the highly intrusive nature of these stops, the acceptance of these conclusory statements at Mapp/Dunaway hearings as a minimal basis for the admission of evidence poses a significant danger.

(LC)

PRS Watch: More resentencing fallout

Some issues never seem to die.  Depraved indifference murder was one.  PRS/Catu/Sparber is another.  In a group of consolidated appeals, last week the Court of Appeals rejected defendants' arguments that their resentencings, to include a period of PRS, were improper.  The case is People v. Lingle (Ct. App. 4/28/2011).  Judge Read wrote the majority opinion.  Judge Ciparick dissented from two of the six cases.

In most of the cases, the defendants were resentenced while they were still incarcerated.  The Court rejected arguments that this violated double jeopardy and due process.  Williams drew a clear line in the sand.  Resentencing is permitted before a defendant is released from custody, but it is not allowed after a defendant has been released, since he earned an expectation of finality.  Since resentencing is only for the purpose of adding a term fo PRS, the Court held that a resentencing court may not reconsider the incarceration part of a defendant's sentence.  Finally, the Appellate Division may not exericse its interest of justice authority to reduce the prison portion of a sentence on appeal.

Judge Ciparick dissented from two of the cases.  In the first, Sharlow, the defendant was out on a conditional release, since he had completed 6/7'ths of his sentence, when he was resentenced.  Judge Ciparick found that this fell on the Williams side of the line and resentencing was a violation of double jeopardy.  She also concluded that both the resentencing court and the Appellate Division have authority to reconsider the length of the original prison sentence.

On balance, I agree with aspects of both the majority and dissenting opinions.  The majority got it right that Williams crafted a bright line rule and that defendants still in prison can be resentenced without violating double jeopardy.  Sharlow baffles me, though.  He had been released from prison and began living his life.  That he was still under supervision is of no moment, as Williams concluded.  I fail to see the difference between the scenarios.  I also agree with Judge Ciparick regarding the Appellate Division's inherent authority.  The interest of justice power that that court possesses is broad and permits reversal and modification even in the absence of error by the lower court.  (LC)

Defendant with comprehension defects and brain damage passes 730 exam

 

The Court of Appeals affirmed a competency ruling following conflicting CPL § 730 examination results. In People v. Phillips (Ct. App. 3/29/2011) (Jones, J.) (6-1), the Defendant was charged with Attempted Murder 2° after an unsuccessful attempt to kill his wife. The Defendant was ordered to undergo a 730 examination and was subsequently found unfit to stand trial. Notably, the Defendant had previously suffered a series of strokes for eleven years that significantly affected his ability to comprehend and communicate. Subsequently, he was committed to Kirby Psychiatric Center; after five months, a reevaluation yielded conflicting opinions about his ability to stand trial. Eventually, he was found fit by an Associate Clinical Director at Kirby and returned to Riker’s Island; the Defendant moved to contest the competency finding. 

For six months, the People and the Defendant presented expert testimony to the trial court about his fitness for trial. The experts agreed that his permanent brain injuries left him unable to communicate clearly. But, the opinions were divided about his ability to understand the trial proceedings. For the Defendant, a licensed psychologist testified that the Defendant’s motor speech abilities impaired his ability to understand legal concepts. Further, the Director of Neurology at Bellevue Hospital concluded that he lacked the ability to comprehend sophisticated, compound concepts necessary for a trial. 

The People first presented a licensed physician to show competency. After unsuccessful eliciting longer, more substantive responses from the Defendant, this physician rephrased questions in such a way as to produce short, yes-or-no answers. Further, a forensic psychiatrist testified that while the Defendant exhibited speech difficulties, he reacted to humor and acknowledged an understanding of some legal terms, like plea bargains and defenses, during therapy sessions.  The trial court also substantially interacted with the Defendant and issued a 55-page opinion finding him fit for trial. The court discounted the Defendant’s experts because they performed tests that were too abstract and disconnected from the fitness inquiry. 

The Court of Appeals applied the Dusky standard to determine fitness: “whether the defendant has sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understanding – and whether he or she has a rational as well as factual understanding of the proceedings against him.” And, the Court emphasized that the trial competency finding is “within the sound discretion of the trial court.”  The Court of Appeals affirmed the trial court's finding of competency.

Chief Judge Lippman dissented and emphasized that the Defendant’s witnesses had more probative force due to their qualifications as neurological experts. Further, Judge Lippman emphasized that the tests occurring at Bellevue, resulting in the psychiatrists found that his level to think abstractly, would preclude him from assisting his attorney in his defense. 

Further, Judge Lippman highlighted that the Defendant’s attorney plainly stated: “I am telling you that I believe that Mr. Phillips is incapable of assisting me in his defense, I cannot get him to a point where I feel comfortable where I feel that he is able to assist me.” While the majority acknowledged this statement, it noted that the attorney’s opinion was not dispositive and relied upon the trial court’s impressions. Generally, the dissent found the permanent brain injuries and test results confirming limited comprehension as a strong indication of his inability to stand trial. Nonetheless, the majority affirmed the Appellate Division and relied on the trial court’s experience with the defendant and found him fit to stand trial. (RB/LC)

 

Doctor's testimony regarding cause of child's injuries held to be admissible as non-testimonial

The Court of Appeals affirmed the trial court's decision to allow a treating physician to testify about what a non-testifying three-year old said during the course of treatment and that allowing the testimony was not a violation of the confrontation clause.

In People v. Duhs (Ct. App. 3/29/2011) (7-0), the defendant appealed his conviction for Assault 1º and Endangering the Welfare of a Child. The Defendant allegedly placed his girlfriend's three-year old son's legs in hot water long enough to cause second and third degree burns. The child's treating physician asked the child why he did not get out of the tub and the child told the doctor that the defendant would not let him. The doctor's testimony was allowed in court.

The Defendant argued that allowing the doctor's testimony violates his Sixth Amendment right to confront a witness. The Court Appeals affirmed the decision by the trial court, allowing the testimony. The Court of Appeals looked to the primary purpose test to decide if the statement was correctly admitted. Statements made to meet an ongoing emergency are considered nontestimonial and allowable. Interviews whose primary purpose is to elicit statements made to prove past events that may be used in a later criminal investigation are considered testimonial and are admitted in court only if the defendant is given the opportunity to confront the witness. It held that the child's statement was made during the course of medical treatment.  The primary purpose of the doctor's questions was to properly diagnose and treat the child's injuries and the testimony was properly admitted at trial.  (JMM/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)

COA does not recognize a limited Alford plea

In People v. Hill (Ct. App. 3/29/11) (7-0), the Defendant was accused of murdering his uncle while the two men were arguing in the Defendants home. At some time during the argument the Defendant admitted to pulling out a switchblade knife. He claims the knife was pulled out to protect himself from his uncle attacking him, but he admitted the knife entered his uncle and killed him. The Defendant pleaded guilty to Manslaughter 1° (intent to inflict serious physical injury) instead of going to trial on Murder 2° (intentional murder). 

During the plea colloquy the Defendant stated he did not intend to kill his uncle. The judge then asked the Defendant if he "intended to cause serious physical injury by using a switchblade knife," but Defendant's answer was that he was aware a switchblade knife could cause damage. Once aging the Defendant did not admit to intentionally injuring his uncle. The Defendant further agreed the medical evidence would show the knife he was holding punctured his uncle's skin, muscle, tissue and broke his rib bone, and then pierced his heart causing him to bleed to death. Based on this testimony the judge accepted his guilty plea. 

Prior to sentencing, the Defendant sent a letter to the judge asking to withdraw his plea. He stated his attorney misled him about the reason he should enter a guilty plea. He only pleaded guilty because he thought it would be best for his family. While in court awaiting sentencing, the Defendant again begged the judge to allow him to withdraw his plea clamining the murder was unintentional; he was acting in self defense and would never harm his uncle. 

The Court of Appeals held there is no "limited Alford Plea" in New York and based on the facts of this case there is not enough evidence for the Court to conclude the Defendant's guilty plea was voluntary and a rational choice.  Absent the Defendant admitting to the requisite intent, his plea could be accepted only if the Defendant was aware that he was entering an Alford plea.  For example, he was not asked if he was pleading guilty (even though he was not admitting guilty) in order to avoid the risks of going to trial.  (MK/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)

Confrontation Clause not violated when defendant unable to recall witness

When a prosecution witness becomes unavailable after testifying, the inability of the Defendant to recall the witness does not violate the Confrontation Clause  In People v. Montes (Ct. App. 2/17/2011) (Jones, J.) (6-1), a witness was interviewed by the District Attorney after her testimony in a shooting case.  During the interview, she acknowledged lying in her initial testimony and admitted that one of the gunmen had given her his gun immediately after the attack.  Another witness was also interviewed and confirmed that this occurred.  The second witness testified accordingly.  It was then revealed that the first witness had suffered a mental breakdown and was not available to be recalled for further examination.  The parties stipulated to the events that occurred in the District Attorney's office. 

The Court of Appeals held that the defendant's inability to recall the witness did not violate his Confrontation Clause right.  In summary fashion, the court concluded, "[N]o authority holds, and we see no reason to hold, that the right of confrontation includes a right to recall a witness and confront her about things she did or said after her cross-examination, conducted without any restriction of which defendant complains, was already completed."  Here, the witness' unavailability was not "imposed by law" or "restricted by the trial court," the two categories that the Supreme Court has specifically identified as violating the Confrontation Clause.  Moreover, the parties stipulated to the out-of-court statements by the missing witness, which tended to help the Defendant.

In a concurrence, Chief Judge Lippman agreed that reversal was not required, since there was no evidence of prejudice (in fact, the Defendant was acquitted on the top charges, which indicates the jury did not believe the first witness).  The concurrence, however, argued that midtrial unavailability could form the basis of a Confrontation Clause violation under the court's precedents:

We have in fact recognized that denial-of-confrontation claims may arise from a witness's mid-trial unavailability for cross-examination upon a non-collateral matter (see People v Vargas, 88 NY2d 363, 380 [1996]; People v Chin, 67 NY2d 22 [1986]), and if there is some reason why unavailability by reason of the assertion of privilege should be treated differently from unavailability by reason of a medical problem, it is not explained by the majority. If testimony adverse to the defendant upon a non-collateral matter has been placed before the jury and the defendant has not been afforded an opportunity fully and fairly to test that testimony by cross-examination, the right of confrontation has been infringed. Until today, there has never been a rule that the assertion of that right was somehow dependent upon the precipitant of a witness's unavailability.

(LC)

SOMTA is collateral consequence

A plea court is not required to advise a defendant that he may be subject to the Sex Offender Management and Treatment Act (SOMTA), a 2007 law that permits the civil confinement of sex offenders after the completion of their prison terms.  In People v. Harnett (Ct. App. 2/10/2011) (Smith, J.) (5-2), the Court of Appeals concluded that SOMTA is a collateral, rather than a direct, consequence of a guilty plea and, therefore, a defendant need not understand the possibility of SOMTA commitment before he pleads guilty.  Like SORA, which the Court of Appeals held was collateral in People v. Gravino, SOMTA is

is not a penal statute designed to punish a past crime, but a remedial one designed to prevent a future crime (see Gravino, 14 NY3d at 556); with SOMTA, as with SORA, important decisions and recommendations must be made, after the time of the guilty plea, by administrative agencies not under the court's control (see id.); and with SOMTA, even more than with SORA, the consequences of a defendant's plea are far from automatic. Indeed, experience to date indicates that the large majority of people who are "detained sex offenders" as SOMTA defines the term will suffer no consequences from that designation at all.

The court rejected a fairness argument that the defense raised based on a New Jersey case, State v. Bellamy, 835 A.2d 1231 (2003).  But the court noted that Bellamy involved an unusual set of facts.  The defendant pleaded after he had already served most of his sentence.  He was due to be released in two months under the guilty plea.  The state then commenced civil commitment proceedings a week before his release date.  In Bellamy, the appellate court remanded for a motion to withdraw the guilty plea.  The New York Court of Appeals agreed that the facts of Bellamy would probably require a finding of involuntariness, which is why it strongly encouraged trial courts to explain the possible SOMTA consequences of a guilty plea to defendants.  Here, there was no evidence that the defendant's case was like the extreme one of Bellamy.

Judge Ciparick, writing for herself and Judge Jones, dissented.  The dissent drew a distinction between SORA and SOMTA in that the latter requires confinement.  "I believe a defendant cannot be said to knowingly and voluntarily forego his right to trial if he does not know the full extent of confinement that might result from his conviction."  (LC)

AT1 justices differ on credibility of officer

In People v. Creer (1st App. Term 12/30/2010), Justices of the Appellate Term, First Department, reached different conclusions regarding the credibility of a police officer in a DWI suppression case.  The majority reversed the motion court's decision to grant the Defendant's motion to suppress.  The appellate court found probable cause based on the Defendant's "class signs of intoxication," including bloodshot, watery eyes; alcohol on his breath; and unsteadiness.  The court noted:

while the suppression court found that the officer's testimony was "at times" not credible, the court made no specific finding that the officer's testimony regarding his observations of defendant (or defendant's pre-arrest admission) was not credible. 

Justice Schoenfeld, in dissent, analyzed the officer's testimony in depth to show inconsistencies.  "The self-contradictory and confusing testimony of the arresting officer entitled the trial judge to find that there was no probable cause for [the] arrest."  The dissent also makes a reference to the officer's possible testilying—using the "'magic' words to establish probable cause."  In sum, the dissent concludes:

The trial judge assessed the credibility of Officer Ulich firsthand. The court found that the myriad inconsistencies in his testimony undermined his credibility with respect to his description of defendant's condition that morning and that there were therefore no facts upon which to base a finding of probable cause. Although the trial court also found it important that the Officer did not use roadside coordination tests or a portable breathalyzer or that the Officer was not trained to identify intoxicated individuals, this Court does not find those issues compelling. Nonetheless, based on the Officer's testimony, it appears that the findings of the lower court were not clearly erroneous and the decision should therefore be affirmed.

This case is one of the rare insights into credibility determinations in the suppression context.  The majority focuses on what was not in dispute by the officer's testimony.  In a sense, the majority finds some of the timing and other discrepancies in the officer's testimony irrelevant.  What was not in dispute was the Defendant's signs of intoxication, which in turn gave rise to a finding of probable cause.  (LC)

Padilla held retroactive

In People v. Nunez (2d App. Term 12/15/2010), the defendant plead guilty to Criminal Possession of a Controlled Substance 7° in 1997.  Over a decade later, the defendant moved to vacate his judgment on the ground of ineffective assistance of counsel. Specifically, he argued: (1) his attorney provided him with incorrect advice regarding the immigration consequences of pleading guilty; and (2) his attorney had a conflict of interest because he was employed by the same firm previously representing a person arrested with defendant on an unrelated matter. 

In Padilla v. Kentucky, the U.S. Supreme Court held that the Strickland ineffective assistance analysis requires attorneys to inform their clients of immigration consequences resulting from a guilty plea.   Deportation is an integral part of the penalty potentially applying to noncitizens pleading guilty to specified crimes, rendering the accuracy of legal advice critical. 

According to the Appellate Term, Padilla involved an application of well-established “old” rules (ineffective assistance of counsel) to a new set of facts (deportation consequences). “Old” rules are distinguished from “new” rules as new rules render results not dictated by precedent existing at the time the defendant’s conviction became final. Cases involving old rules applied to new factual circumstances are given retroactive effect. The court concluded that Padilla should therefore be applied retroactively. 

The case was reversed and remanded for a factual hearing to determine if, in fact, the defense attorney provided the Defendant with proper immigration advice in connection with the criminal plea.  There was no basis for a hearing on the conflict of interest claim, however. (RB/LC)

AD1 considers suspension notice foundation issue

A defendant’s confrontation right is violated when documentary evidence of a license suspension is admitted without an opportunity to cross-examine the affiant.  

In People v. Abelo (1st Dept. 12/28/2010), Defendant was convicted at a bench trial of Aggravated Unlicensed Operation of a Motor Vehicle 2° (AUOMV2°). An AUOMV2° conviction requires that the People prove that the Defendant had knowledge or reason to know that he was driving with a suspended license.  To satisfy this element, the People introduced suspension notices through the direct examination of a DMV employee.  The employee testified to having worked for the DMV since 2002 and stated that in 1992 and 1993 the DMV mailed the Defendant suspension notices.  On cross-examination, the employee admitted that she could not testify to DMV mailing procedures during 1992 or 1993.  The trial court refused to admit notices from 1993, but admitted a notice from 1992.

On appeal, the Defendant argued that the People were required to produce a witness who was familiar with DMV mailing procedures of the respective periods for cross-examination.  Three First Department justices agreed with the Defendant.  The court reversed the conviction and ordered a retrial.  The court reasoned that a witness without knowledge of the relevant procedures could not lay the appropriate foundation, nor did the witness satisfy the obligation established by the Confrontation Clause.

The court found this error was not harmless, because the evidence also showed that, despite having a suspended license in the early 1990s, the DMV issued him new licenses on several occasions afterwards when he returned to New York after brief stays in other stays.  This indicated that there was less than overwhelming evidence that the defendant knew that his license was suspended, the key issue in the case.

Justice Nardelli joined Justice DeGrasse in dissent.  The dissent disagreed with the majority’s interpretation of the witness' preparation.  They believed that the witness had familiarized herself with the 1992 DMV mailing procedures, but was not familiar with the 1993 DMV mailing procedures.  Thus the dissent would have affirmed the conviction on the ground that the 1992 notice was properly admitted.  The dissent considered the production of the DMV employee as satisfying Defendant’s confrontation right.  (MM/LC)

AD1 rejects visual body cavity search under the facts

In some drug arrest cases, the police will know that a defendant has drugs on his person and, by process of elimination, determine that the only conceivable place for the drugs is a body cavity. In People v. Colon (1st Dept. 1/4/2011), however, the First Department concluded there was not evidence to support even a visual inspection of the defendant's buttocks. "To conduct 'a visual cavity inspection, the police must have a specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity . . . [V]isual cavity inspections . . . cannot be routinely undertaken as incident to all drug arrests or permitted under a police department's blanket policy that subjects persons suspected of certain crimes to these procedures' (People v Hall, 10 NY3d at 311)." Here, the defendant was searched, pursuant to a warrant, nine days after the facts that gave rise to the warrant. There was no indication that he would have drugs on his person at the time such that a reasonable inference could be drawn that the drugs were in a body cavity, since none were found in his clothing. The First Department unanimously reversed the defendant's conviction and dismissed the indictment. (LC)

Trial court's duty when defendant moves to substitute counsel

The Court of Appeals held recently that a trial court is not necessarily required to inquire of a defendant, rather than his counsel, about a defendant's pro se motion to substitute counsel.  

In two consolidated appeals, People v. Porto (Ct. App. 12/21/2010) (Jones, J.) (6-1) and People v. Garcia (Ct. App. 12/21/2010) (7-0) (Jones, J.), the defendants made pro se motions to substitute counsel.  Porto submitted a preprinted form and circled three reasons for substitution: "[Defense counsel failed to]: (a) visit defendant at his place of confinement or have him produced to the Court for a consultation; (b) provide copies and inform defendant of any Motions filed, Responses and Court's decisions thereto; (c) forward me copies of any bill of particulars and or discovery in his/her possession."  Porto filed his motion approximately 10 days before trial; the court considered the request on the morning of jury selection.  The court had an on-the-record discussion with defense counsel and then denied the motion.  Garcia, on the other hand, pleaded guilty but informed the PSR writer that he was considering moving to withdraw his plea and to substitute counsel.  The court denied the motion after discussing the matter with both the defendant and his attorney.

Judge Pigott dissented from Porto but joined the majority in Garcia.  For him, the critical difference between the cases was the failure of the trial court to inquire of the defendant personally.  All of the judges agreed on the legal standard:

• A defendant has a right to counsel but not the right to particular counsel.
• A trial court has a duty to consider a request to substitute only when a defendant has made a seemingly serious request.  Thus, a motion must be supported by facts.
• If such factual allegations are made, the trial court must conduct a "minimal inquiry" into the matter.
• A trial court ultimately has discretion whether to grant a motion to substitute or not.
• A request to substitute counsel should not be casually granted.
• A motion should be granted only when good cause is shown.  

In Porto, the majority was persuaded to affirm because the defendant's motion was a preprinted form and did not contain specific facts even the form had space to provide them.  Moreover, the court conducted an inquiry of defense counsel, who reported practicing law for decades and trying 30-40 felony cases.  Counsel reported only some frustration on the defendant's part, apparently having to do with fingerprint evidence.  Judge Pigott, in dissent, argued that the form motion itself was enough to trigger direct questioning of the defendant, since it alleged that counsel had not visited the defendant or kept him abreast of the case.  This, combined with defense counsel's concession that the defendant was frustrated, should have compelled further inquiry since there was an indication of the breakdown of trust.  Judge Pigott then made an interesting comment about the form nature of the defendant's motion:

The majority rests its decision primarily on the failure of defendant to make "specific factual allegations that would indicate a serious conflict with counsel, despite being provided the space to develop such a complaint" (maj opn at 9). In fact, defendant made three factual allegations in his pro se application and, if they lack specificity, it is only because they are negative in character, as one would expect from a complaint that a lawyer has failed to communicate.

In Garcia, all of the judges agreed that the minimal inquiry standard was met.  There was a discussion between the court, defendant, and defense counsel.  The court properly concluded that the defendant's last minute motion was a delay tactic.  (LC)