New York Criminal Law and Procedure

AT1 reverses 440 grant

In People v. Simon (App. Term 1st Dept. Aug. 31, 2011), the trial court granted (without a hearing) the Defendant's 440 motion, alleging ineffective assistance of counsel.  The Appellate Term found this was error.  

The Defendant alleged that he would not have pleaded guilty had his previous attorney not erroneously advised him to do so.  The Defendant included his own affidavit and an affirmation from his current attorney.  However, he did not obtain an affirmation from his previous attorney.  Since the People did not concede the facts giving rising to the 440 claim, it was error to grant the 440 motion without a hearing.  (LC)   

Another reversal for equivocal answers by juror

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

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

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

COA reverses jury selection case in summary fashion

In People v. Johnson (Ct. App. 6/9/2011), a unanimous Court of Appeals—in a memorandum decision—reversed a defendant's conviction because of an error in jury selection.  The Defendant raised the insanity defense.  One of the prospective jurors said she wrote a college term paper on the insanity defense.  During subsequent questioning, she said that she was not sure if she could give both sides a fair trial and that she might be biased against the defense.  The Defendant exercised a peremptory challenge.

The court reversed because the trial judge should have conducted a further inquiry and either obtain an unequivocal assurance of fairness or excuse the juror for cause.  "Here, given the absence of follow-up questioning by the court after the juror expressed uncertainty concerning her ability to fairly consider a major issue in this case, the conviction must be reversed and the matter remitted for a new trial." 

Lesson learned?  Followup, followup, followup.  (LC)

Is 5 minutes enough time for voir dire?

While trial courts have wide latitude in controlling the tempo and timing of voir dire, that discretion is not absolute.  In People v. Steward (Ct. App. 6/7/2011) (Graffeo, J.) (5-2), the Court of Appeals held that the trial court abused its discretion by only permitting five minutes of questioning per round of voir dire.

The case stemmed from a robbery of a well known DJ.  Prior to jury selection, the trial judge informed the parties that they would each be given five minutes per round of voir dire.  The Defendant objected to the time limit during the first round of jury selection but not during the subsequent rounds.

The relevant statute states, "Each party shall be afforded a fair opportunity to question the prospective jurors as to any unexplored matter affecting their qualifications, but the court shall not permit questioning that is repetitious or irrelevant, or questions as to a juror's knowledge of rules of law." (CPL § 270.15(c))  The court set forth a factors test to be applied in determining whether a particular time limit is reasonable:

It would be impossible to compile an exhaustive list of all the factors that might inform a trial court's determination of this issue. But, in most cases, relevant considerations would include: the number of jurors and alternate jurors to be selected and the number of peremptory challenges available to the parties; the number, nature and seriousness of the pending charges; any notoriety the case may have received in the media or local community; special considerations arising from the legal issues raised in the case, including anticipated defenses such as justification or a plea of not responsible by reason of mental disease or defect; any unique concerns emanating from the identity or characteristics of the defendant, the victim, the witnesses or counsel; and the extent to which the court will examine prospective jurors on relevant topics. Because voir dire is a fluid process and it is not always possible to anticipate the issues that may arise during examination of the venire, it is also incumbent on counsel to advise the court if any temporal limitation imposed relating to juror questioning is proving, in practice, to be unduly restrictive and prejudicial.

The five minutes imposed by the trial court in this case was shorter than the time limits previously upheld by the Court of Appeals.  Moreover, the Defendant was facing four serious Class B felony charges as well as other felonies.  The victim was a celebrity and many of the prospective jurors had heard of him.  The case also raised sensistive questions about self-help, as the victim had pursued his assailants after the robbery was completed.

The question of prejudice was made difficult by the record, which referred to each venireperson only as "prospective juror" and entire groups of prospective jurors were excused sua sponte.  "[H]ere, due to peculiarities in the record, it is impossible to contradict the contention that the problematic prospective jurors that counsel was unable to examine ultimately sat on the jury that convicted him of multiple class B violent felonies." 

The trial judge was Justice Ruth Pickholz.  (LC)

DWI with a conditional license not a violation of the conditional license

Violating terms of a conditional license is a traffic violation and not considered driving with a revoked license. In People v. Rivera (Ct. App. 5/3/2011) (Smith, J.) (5-2) the Court of Appeals affirmed the dismissal of the charge of Aggravated Unlicensed Operation of a Motor Vehicle 1º.  The Defendant, on November 14, 2007, was convicted of DWI and had his license revoked for a minimum of six months. As a first-time offender, the Defendant was able to get a conditional license that allowed him to drive to and from work, school, the rehabilitation program and from noon to 3 P.M on Saturdays. The Defendant was arrested for driving while intoxicated at 1:04 A.M. on February 20, 2008. He was charged with aggravated unlicensed operation of a motor vehicle in the first degree, under VTL § 511(3).

The Supreme Court granted the Defendant's motion to dismiss the charge prior to trial. The Appellate Division affirmed. The People appealed and the Court of Appeals affirmed 5-2.

The Court held that the Defendant had violated VTL § 1196(7)(f) by operating a motor vehicle in violation of his conditional license. The People had argued that the Defendant violated VTL § 511(3)(a)(i), a class E felony, by operating a motor vehicle knowingly with a revoked license, that the license was previously revoked for DWI, and committed the current crime while driving while intoxicated. The Court supported the Defendant's argument that he could not be charged with driving with a revoked license since he had a conditional license, holding that the argument was logical and supported by the legislative history of the statute.

The Legislature enacted VTL § 1196(7)(f) to address violations of use of a conditional license, increasing the maximum fine allowed from $100 to $500, keeping the maximum prison term limited to 15 days, and revocation of the conditional license. The Court held the amendment made such violations a more serious traffic infraction, and had it wanted to, the Legislature could have amended § 511 to specifically criminalize what the Defendant did. The majority stated that without a change to the rules, the maximum punishment for driving while violating terms of a conditional license is controlled by VTL § 1196(7)(f).

Judge Graffeo dissented, joined by Judge Pigott, arguing that the District Attorney should have the discretion to charge either VTL § 1196(7)(f) or § 511(3)(a)(i) and that the majority's holding punishes a person who drives drunk with the same penalty as someone who violates his conditional license with a minor infraction. The dissent pointed out that in order to have a conditional license, the Defendant must first have had his license revoked and that any operation of a motor vehicle outside of the terms of the conditional license, should be treated as operation with a revoked license. The dissent goes on to argue that because two different statutes cover the illegal conduct, either one can be used, at the People's discretion, and that the existence of the lesser crime, under VTL  § 1196(7)(f) does not preclude use of  § 511(3)(a)(i). Since the Legislature did not eliminate the higher, class E felony, statute, the People should be able to use it. The dissent argued that the holding allows the Defendant more lenient treatment because he had a conditional license, something they believe the Legislature had no intention of doing when they created the conditional license.  (JMM/LC)

 

Lawyers as jurors

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

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

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

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

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)

Defendant's father wrongly excluded from courtroom

In People v. Martin (Ct. App. 5/10/2011) (Ciparick, J.), the Court of Appeals unanimously reversed the Defendant's conviction because his father was excluded from the courtroom for a portion of the voir dire.  Prior to jury selection, the trial court turned to the father and directed him to exit the courtroom and to have no contact with any potential jurors.  Defense counsel objected. 

The trial court offered two reasons for the exclusion: (1) every seat was needed for potential jurors; and (2) the Defendant's father might influence the venire.  The Court of Appeals found neither reason persuasive.  First, while a trial court may limit the number of spectators in order to accommodate a venire panel, it is error to exclude a single, specific person to do so.  Second, there was no specific evidence that the father was likely to influence potential jurors.  It was pure speculation on the court's part.  Moreover, the trial court did not consider alternatives to exclusion.

Lessons for trial courts:

• Make a record of why you are excluding a person or group from the courtroom.  The record must be supported by specific facts, not conjecture.  (In reading this case, I wonder if there was something off-the-record that gave the trial court pause about the father.)
• Specifically consider, on the record, alternatives to complete closure or exclusion.
• If overcrowding is a concern, do not single out particular spectators.  Also, be sure to make a record of how big the courtroom is and how many seats are available. 

(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)

 

Court can assist with multiple count jury verdict when verdict is inconsistent with the law

Under CPL § 310.50(2), the trial court can instruct a jury when the verdict reached is against the court's instructions or otherwise legally defective.

In People v. Williams,(Ct. App. 3/31/2011) (Jones, J.) (7-0), the Defendant was indicted on seven counts resulting from a shooting at a Brooklyn club in which a woman was killed and a man, who the People believed was the intended target, was injured. The jury returned two different verdicts inconsistent with the law and the trial court did not accept either one.  The first was inconsistent with the law because the jury purported to acquit the Defendant of intentional murder (under a transferred intent theory) as to one victim, but find him guilty of Attempted Murder for that same victim, which necessarily proof of specific intent to kill.  Moreover, finding the Defendant not guilty of Assault 1º, which requires intent to inflict serious physical injury, was inconsistent with convicting him of Manslaughter 1º with respect to the same victim.  The second verdict was inconsistent with the court's instructions, because the jury returned verdicts of lesser charges even thought it had convicted the Defendant of higher ones.  The third and final verdict was accepted by the court but only after the jury completed the verdict sheet in open court regarding two of the counts. The Defendant was convicted on three counts: Murder 2º, Attempted Murder 2º, and CPW. The Appellate Division affirmed.

On appeal, the Defendant argued he was not afforded proper notice, the jury improperly deliberated in open court, and that the court coerced the jury through its Allen charge and supplemental instructions. The Court of Appeals held that the jury's inconsistent verdict was not a request for further instructions, which would have required notice to the Defendant and an opportunity to be heard under CPL § 310.30. The jury's verdict was inconsistent with the law and was therefore controlled by CPL § 310.50, which does not require notice to the defendant or an opportunity to be heard. As to the jury's public deliberations, the Court of Appeals held it to be a harmless error as as the counts missing from the verdict sheet the jury completed in open court were both not guilty verdicts.  (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)

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)

Parole status not controlling for 2009 DLRA resentencing application

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

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

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

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

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

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

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

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

AD3 finds no duplicity in assault charge

Last week, I blogged about a recent Court of Appeals decision on multiplicity: charging multiple offenses for a single crime.  The flip side of multiplicity is duplicity: charging multiple crimes in a single count.  The latter concern implicates notice and jury unanimity.  If a defendant is charged with multiple crimes in one count, it is difficult for him to know how to defense himself and whether a jury's guilty verdict is unanimous as to the method or act of the crime.

In People v. Wright (3d Dept. 2/24/2011), the Appellate Division held that a count of Aggravated Assault was not duplicitous.  The case involved an 11-year-old who suffered a left orbital fracture in her face.  The indictment charged that the Defendant caused this injury "by means of punching and/or striking and/or pushing her."  The Defendant argued that this language caused a duplicity problem, but the Third Department disagreed:

Defendant complains that [the child's mother]'s trial testimony — indicating that defendant punched, kicked, slapped and spanked his daughter more than 80 times in the alleged time period — made it impossible to determine if the verdict was unanimous or if the jury found him guilty of one crime based upon different instances of abuse ... . This fear is unfounded because the count specifies that it relates to the assault which resulted in the eye injury. Thus, the count contained only one offense and was not duplicitous, either as charged or based upon the evidence presented at trial.

Thus, the court suggests that where multiple, alternative acts are alleged to cause only a single injury, there is not a duplicity problem with the indictment.  The court properly distinguished the Court of Appeals' decision in People v. Bauman (Ct. App. 3/26/2009), in which the court found a depraved indifference assault charge to be duplicitious when it alleged:

striking [victim] about the head and body with fists and/or a baseball bat and/or a hammer; and/or burning said person with a frying pan; and/or scalding said person with hot water; and/or placing a vacuum cleaner hose on said person's genital area; and/or providing inappropriate and/or inadequate nutrition; and/or subjecting said person to inadequate and/or inappropriate living conditions; and/or failing to seek medical attention. 

In that case, there were multiple acts and multiple results; thus, the charge was duplicitious. (LC)

Is 30.30 a speedy trial statute?

People v. Farkas (Ct. App. 2/22/2011) (Lippman, C.J.) (7-0) is a run-of-the-mill CPL § 30.30 case.  The Defendant was accused of stealing a photographer's camera and punching him in the face.  The initial charge, however, was only for Assault 3º and the People stated ready for trial.  More than a year alter, the Grand Jury indicted the Defendant for Robbery 1º and related charges.  The Court of Appeals held that the theft-rleated charges "directly derived" from the initial accusatory instrument and thus all of the time excludable for the Assault charges would apply to the new charges. 

What is interesting about the court's opinion is its use of the phrase "speedy trial."  Throughout the opinion, the court refers to CPL § 30.30 as a "speedy trial statute."  It is no such thing.  CPL § 30.30 does not guarantee that a defendant must be brought to trial within a specified period of time.  Instead, it requires that the People state their readiness for trial by a certain date.  The rule is directed at the People and does not impose any temporal obligation on a trial court to start a defendant's trial.

CPL § 30.20, not § 30.30, is New York's speedy trial statute.  It states only that "the defendant is entitled to a speedy trial."  Case law has established factors that courts will look to in deciding whether a trial has been speedily commenced or not.

The distinction is an important one.  Once the People declare their readiness, CPL § 30.30 is satisfied (unless they fall back into unreadiness).  Thus, in post-readiness, delays attributable to calendar backlog do not lead to dismissal or bail reduction under CPL § 30.30.  Rather, court delays implicate the true speedy trial statute, CPL § 30.20, whose "fuzzy" factors test is difficult to satisfy.

The Legislature did not help matters by captioning § 30.30 as "Speedy Trial; Time Limitations," which only contributes to the confusion about this statute.   Still, the Court of Appeals has itself noted the distinction between CPL § 30.20 and § 30.30 in various decisions and, thus, I was surprised by the Farkas decision's reference to CPL § 30.30 as a "speedy trial statute."  (LC)

AD1: Correction of illegal aggregate sentence permits restructuring of component sentences

To correct an illegal aggregate sentence, an intermediate appellate court may restructure the component lawful and offending sentences such that the lawful result resembles the original aggregate sentence.

In People v. Rodriguez (1st Dept. 12/28/2010), Defendant was convicted by a jury of Attempted Murder 2°, Assault 1°, Robbery 2°, and two counts of Robbery 1°, and sentenced as a second violent offender to an aggregate term of 40 years.  The demarcation of the aggregate sentence was 25 years for Attempted Murder 2° consecutive to 15 years for Assault 1°.  The other sentences were to be served concurrently with each other and with the consecutive term.  The additional sentences consisted of 25 years for each count of Robbery 1° and 15 years for Robbery 2°.  On appeal, Defendant challenged the legality of the aggregate sentence. Penal Law § 70.25 provides that sentences for related offenses may not run consecutively where a single act constitutes: (1) multiple offenses; or (2) one of the offenses and a material element of the other offense.  The People conceded, and the First Department held, that the assault and attempted murder sentences stemmed from the same acts and therefore could not be imposed consecutively.  The First Department remanded so that the trial court could realign the sentences to lawfully arrive at the intended aggregate sentence.  Defendant argued for an interpretation of CPL § 430.10 that would preclude the trial court from altering the three concurrent sentences.

CPL § 430.10 provides that once a lawful sentence of imprisonment has commenced it may not be altered unless specifically authorized by law.  The First Department cited People v. Montel, 704 N.Y.S.2d 462 (N.Y. App. Div. 1st Dep't 2000), for the precedent of vacating illegal consecutive sentences and remanding so that concurrent sentences could be imposed consecutively to reflect the intended aggregate sentence.  The First Department indicated that the procedure set forth in Montel was proper as long as the corrected aggregate sentence did not exceed the original aggregate sentence.  Additionally, the First Department held that § 430.10 was not violated because no individual sentence would be altered on remand; instead,  only the order of sentences would be changed.

In a concurrence, Justice McGuire emphasized the challenges courts face when sentencing multiple defendants for multiple charges.  Justice McGuire noted that the Supreme Court held in Bozza v. United States, 330 U.S. 160, 166-167 (1947), that “[t]he Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.”  In contrast with the majority, Justice McGuire noted that § 430.10 is only applicable where the entire aggregate sentence is lawful, and thus because the original aggregate sentence at issue here was illegal the trial court was free to restructure the underlying sentences.  Finally, Justice McGuire pointed out that if Defendant were permitted to prevail his aggregate sentence would be equivalent to the aggregate sentence of his far less culpable accomplice, a result that Justice McGuire found would deprive him of a just sentence.  (MM/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)

COA addresses sentencing issues

Yesterday, the Court of Appeals decided a number of new cases on sentencing:

• People v. Bell (Ct. App. 12/14/2010) (memorandum) (7-0) - constitutionality of persistent violent felony offender statute upheld.  Note that Chief Judge Lippman joined the majority but dissented from Battles, below, a case involving the discretionary, persistent felony offender statute.
• People v. Frazier (Ct. App. 12/14/2010) (Lippman, C.J.) - since larceny and burglary contain different actus rea, consecutive sentences are permissible.  Larceny is the taking of property, while burglary is a breaking and entering.  Burglary also requires an intent to commit a crime.  The defendant argued that there was overlapping intent, since he entered the property with the intent to steal.  But the test for consecutive sentences looks at actus reus, not mens rea.
• People v. Battles (Ct. App. 12/14/2010) (Pigott, J.) (5-1-1) - the defendant poured gasoline over several victims.  After a scuffle, a fire ignited.  One of the victims burned to death and the others were severely injured.  The defendant was charged with Depraved Indifference Assault and Depraved Indifference Murder under the theory that he acted with utter disregard for human life when he doused his victims with gasoline.  The Court of Appeals held that consecutive sentencing was proper (except for the victim who was inadvertently doused with gasoline), since dousing each of the victims was a separate act.  The actus reus was not the lighting of the fire but, instead, the super-reckless conduct in splashing the victims with gasoline.  In a lengthy dissent, Chief Judge Lippman argued that New York's discretionary, persistent felony offender statute is unconstitutional (the majority found this argument to be without merit, and cited Bell (above)).  Judge Jones, in dissent, argued that concurrent sentences were mandatory because there was only one act: the reckless conduct that ignited the fire.  Everything else was mere preparatory conduct.   (Note an interesting irony under the majority's reasoning.  If the defendant had intentionally set the fire and was charged with intentional assault and intentional murder, consecutive sentencing would not have been possible, since there was only intentional act in igniting the fire.)
• People v. McKnight (Ct. App. 12/14/2010) (Read, J.) (4-2-1) - concurrent sentences for Murder and Attempted Murder permitted.  The defendant and his accomplice shot at a group of men, killing one and seriously injuring the other.  "The actus reus of the murder of [the deceased] was the firing of the two shots that "cause[d] the death of . . . a third person [i.e., [the deceased]]"; and the actus reus of the attempted murder of [the victim who lived] was the firing of the eight other shots, which either hit no one or hit [the victim] and "tend[ed] to effect" his death."  All of the shots were fired with the same intent (to kill a particular victim), but mens rea is irrelevant to a consecutive sentencing analysis.  Chief Judge Lippman argued, in dissent, that there was only one attempted killing, not 10 (for the number of bullets fired).  Thus, there was only one act charged.

(LC)

No violation of right to speedy trial when delay caused by identity hopping

Claims of violations of statutory and constitutional rights to a speedy trial will not be upheld where the defendant’s actions are the sole cause of the delay.

In People v. Williams (1st Dept. 10/7/2010), the defendant had a history of utilizing conflicting pedigree information dating back to 1972.  Between 1972 and 2004, the defendant was known to have presented five different names, three different social security numbers, two different dates of birth, and two different places of birth.  The defendant used this conflicting information to obtain a passport, purchase a gun, and identify himself to police officers.

The defendant was arrested and charged in 1973 with Rape 1° and Robbery 1°.  At trial, in 1974, the jury was unable to render a verdict and a mistrial was declared.  The defendant was released on bail, but failed to appear in court.  After being arrested in 2004, defendant offerred an explanation for his failure to appear previously.  In a signed affidavit, the defendant indicated that while out on bail he, under a different identity, had been arrested in Washington, D.C., and involuntarily committed.  The defendant also indicated that after his release, he relocated to Egypt, again under a different identity, and subsequently returned to New York in 2004.  In 2005 defendant was tried and convicted of Rape 1° and Robbery 1°.  Defendant raised a claim of violation of his right to a speedy trial.

The First Department unanimously affirmed the conviction, and indicated that no violation of the defendant’s right to a speedy trial occurred.  The court outlined the four factor test set forth by the Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972), and the five factor test set forth by the New York Court of Appeals in People v. Taranovich, 37 N.Y.2d 442, 445 (1975), but noted that both tests turned on whether there was an impairment of liberty.  Reasoning that the defendant’s conduct was the principle reason that the People were unable to identify the defendant and process his case, the court refused to permit the defendant’s claims of deprivation of a speedy trial. (MM/LC)

More on jury notes

In contrast to the case we blogged about earlier today, a mode of proceedings error occurs when the record does not reflect that a court notified the parties of at least a summary of the jury's note.  In People v. Lewis (1st Dept. 10/28/2010), there was nothing in the record that indicated that the trial court informed the parties of the contents of a jury note before it responded.  The Appellate Division conceded, "It is possible that the court showed the note to counsel and that colloquy thereon occurred off the record. The record, however, lacks any indication that such events took place."  Accordingly, reversal was required.  (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) 

Cumulative effect of errors leads to reversal

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

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

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