New York Criminal Law and Procedure

AD1 affirms trial court order setting aside verdict

In People v. Rios (1st Dept. 9/22/2011), the previous manager of a building as well as the corporate owner, were found guilty of Criminally Negligent Homicide and Reckless Endangerment 2º.   The victims in the case were two firefighters who were killed while trying to extinguish the flames.  Two of the apartments had unsafe conditions.  The first had faulty wiring.  The second had an illegal partition.  The fire started in the first apartment and then spread.  The People's theory was that the conditions in the second apartment were the cause of the firefighters' deaths and that the manager had actual knowledge of them.

Following the conviction, the trial court set aside the verdict under CPL § 330.30, finding insufficient evidence of knowledge.  The First Department agreed with the decision.  "The inferences upon which the People rely are impermissibly speculative. Furthermore, the People called the building's superintendent, who testified that he knew about the partition in 4-L but never told Rios about it. Even if the jury discredited that testimony, such disbelief would not supply affirmative proof of the contrary proposition."  (LC)

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)

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)   

The "Dog Pound" case resurfaces

The waning days of summer are a quiet time for the criminal courts.  The appellate courts are busy with election appeals and getting ready for the next term.  Many trial judges and attorneys are on vacation.  Searching for news and cases of interest, I started going through recent trial court opinions on the nycourts.gov website.  Low and behold I found a new iteration of one of my favorite cases, People v. Ennis.  

The Defendant and his brother (Aaron Ennis) were drug dealers who ran a drug operation called the "Dog Pound."  The Defendant was prosecuted for his role in a shooting.  The issue for the Court of Appeals was whether the Defendant received effective assistance of counsel.  During the trial, Aaron Ennis’ attorney confided to Sheldon Ennis’ attorney that Aaron had made a proffer to the People, during plea negotiations, that he alone had shot at the victim and that Sheldon was not present.  According to Sheldon’s attorney, this information was communicated to him in confidence, with the understanding that it would not be disclosed until after trial.  The People never disclosed the contents of the proffer to Sheldon’s lawyer.  counsel’s lack of use of the information from Aaron’s attorney did not deprived the defendant of effective assistance of counsel.  Importantly, the court noted that the defendant would not have been able to do anything meaningful with the information.  He could not have called Aaron to the stand (since he would have asserted the privilege against self-incrimination).  Other witnesses to the proffer could not have testified about its substance because the statement that the defendant did not shoot the victim and was not present was not against Aaron’s penal interests.  Likewise, raising a Brady claim during the trial would not have resulted in a sanction against the People because even if the statement had been turned over, it could not have been admitted into evidence.The court noted, however, that the People's failure to disclose the proffer “cannot be condoned.”

The case has resurfaced again, this time in the context of a FOIL request that was denied by the District Attorney's Office.  Supreme Court denied the Defendant's Article 78 petition because it was both untimely and lacked substantive merit.

In any event, this case is an important lesson that, for defendants, litigation does not end after direct review in the Court of Appeals is over.  FOIL, CPL Article 440, and federal habeas corpus can cause a case to live on for years to follow.  FOIL, in particular, can be a useful vehicle for inmates to identify evidence to support a habeas claim in federal court.  (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)

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)

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)

Homicide with bow-and-arrow splits Court of Appeals on requested intoxication charge

In a short opinion in People v. Sirico (Ct. App. 6/7/2011) (6-1), the Court of Appeals affirmed that an intoxication charge to intentional murder is warranted only if there is evidence that the defendant's intoxication affected his ability to form an intent.  Without going into detail, the majority, in an unsigned memorandum, held, "[T]here is insufficient evidence to support an inference that defendant was so intoxicated as to be unable to form the requisite criminal intent. Indeed, the uncontradicted record evidence, including defendant's own account, supports the conclusion that his overall behavior on the day of the incident was purposeful."

Judge Jones, in dissent, argued that the Defendant had presented sufficient evidence to at least warrant an intoxication charge. 

The facts were bizarre, to say the least, if only because of the Defendant's choice of weapon.  After consuming two large glasses of whiskey and one Xanax, the Defendant retrieved a bow and began launching arrows.  One hit a car and the other fatally wounded a neighbor.  The Defendant also threatened others with the bow-and-arrows.  The People contended that the Defendant's outrageous behavior was caused by "an issue with the mechanism of his prosthetic leg" and not intoxication.  Judge Jones noted that it was for the jury to determine which of the two stories it believed.  (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)

 

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)

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)

New case on Rape Shield Law

In People v. Scott (Ct. App. 5/3/2011) (Jones, J.) (7-0), three 8th grade girls went to a party and then to another house, where they drank, smoked marijuana, and engaged in sexual activity.  One of them alleged that a male minor (Steven A.) and the Defendant, a 23-year-old male, had sex with her, the latter against her will.  The trial court agreed with the People that evidence of sexual contact with Steven A. was inadmissible under the Rape Shield Law unless the People introduced evidence about the victim's bruising.  In addition, the Defendant was prohibited from elicitng from another witness that the victim stated that she was crying because she had sex with Steven A.

The Court of Appeals ducked the question of whether the witness' statement was admissible notwithstanding the Rape Shield Law, since it was relevant to a defense and in the interests of justice to do so.  The court declined to address the issue because the Defendant was acquitted of Rape 1º—forcible rape.  Instead, he was convicted of Rape 2º—statutory rape, which does not require evidence of force or lack of consent. 

So let's continue where the court left off.  What if the Defendant had been convicted of forcible rape?  One could argue that the evidence of the other sexual encounter should have been admitted since it would have gone to rebut the implication that she was crying because she had been forcibly raped.  On the other hand, the question is not just whether the evidence was relevant to a defense but also whether it is in the interests of justice to admit it.  Here, the court must take into account the strong policy reasons behind the Rape Shield Law.  In addition, the People were permitted to introduce the victim's statement to one of the other girls that she did not want to have sex with Defendant.  She made the statement while exiting the bedroom where she was alone with the Defendant.  She came out crying and wearing only a bed sheet.  The helpfulness of the second statement, purporting to explain her crying as a result of her encounter with Steven A., is ultimately undercut by the first, where she is crying and speaking about the incident with the Defendant.  Ultimately, in balancing the various interests, the court could have concluded that it was not an abuse of discretion to exclude the evidence.  (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)

UUV conviction upheld

While mere entry into a car is not enough to support a conviction for Unauthorized Use of a Vehicle (UUV), entry and subsequent vandalism of the car's interior is sufficient.  In People v. Franov (Ct. App. 5/10/2011) (Graffeo, J.) (4-1-2), the defendant broke into a car, vandalized the interior, and left with a part that he had taken from inside the vehicle.  At issue was whether the evidence was legally sufficient to convict him of UUV.  The majority concluded that it was.

The majority relied principally on legislative history.  The prior version of the UUV statute criminalized only joyriding or attempted joyriding (i.e., actual operation).  The amended version states, however, that a person is guilty if "[k]nowing that he does not have the consent of the owner, he takes, operates, exercises control over, rides in or otherwise uses a vehicle." In subsequent cases, the Court of Appeals affirmed that the statute had been broadened.  It upheld convictions for defendants sitting in a parked car, one with the key in the ignition and the other with the engine running.  In a third case, the defendant was sitting in the passenger seat of his car while his companion was trying to start the car; the defendant's conviction was upheld.

The majority held that operability is not the "sine qua non" of the statute.  Thus, that the defendant did not have a key was not relevant.  "On the other hand, entry alone is not enough under the statute, which expressly requires some degree of control or use. The inadvertent entry into a vehicle mistaken for one's own would not constitute this crime — something more is needed since the statute contains a knowledge component. Whether denominated as exercising control over or otherwise using a vehicle, we conclude that a violation of the statute occurs when a person enters an automobile without permission and takes actions that interfere with or are detrimental to the owner's possession or use of the vehicle."

Judge Smith, in a concurring opinion, would have retained what he saw as the rule from the court's prior cases: "unauthorized occupation without consent."  He takes the majority to task for its new rule requiring "interference."  He posits several hypotheticals: "Does an intruder manifest 'control or use' if he talks to a friend while sitting in the car? Smokes a cigarette? Looks out the window for the time it would take to smoke a cigarette? The only example the majority gives of something that would not be prohibited is 'inadvertent entry into a vehicle mistaken for one's own,' but an entry without mens rea is excluded on the face of the statute, which applies only to someone who acts '[k]nowing that he does not have the consent of the owner.'"

Judge Jones, joined by Judge Pigott, dissented.  The dissent would have adopted the following rule: "'unauthorized use' convictions may only be sustained where the defendant's presence in a stationary vehicle is coupled with other evidence demonstrating the ability to operate the vehicle or the means to do so. Based on the foregoing, I would hold that for the purpose of legal sufficiency, in order for a lone defendant to come within the unauthorized use of a vehicle statute, evidence must be adduced at trial that he or she, without the authorization of the vehicle owner (and with an intent to operate the vehicle), obtained the means to set the vehicle's mechanism in operation or possessed tools designed to bypass the vehicle's ignition system." (LC)

No duty of police to investigate defense

The police do not have an affirmative duty under Brady to investigate a self-defense claim.  In People v. Hayes (Ct. App. 5/10/2011) (Jones, J.) (6-1), the Defendant was accused of stabbing a fellow moviegoer who was talking throughout the film.  The Defendant argued that the People committed a Brady violation, because the police officers who secured the crime scene did not interview several individuals who claimed that the complainant was, in fact, the initial aggressor.  Morever, the Defendant complained that the trial court improperly limited his cross-examination of the police officer.  The Court of Appeals affirmed.

With respect to the Defendant's Brady claim, the court summarized the argument briefly, "Here, defendant claims that the police and the People committed a Brady violation by failing to interview, or at a minimum, acquire the contact information of the two individuals who made the statements overheard by Sergeant Fitzpatrick. While defendant's argument is couched in Brady terms, when distilled, he essentially seeks a rule that would impose an affirmative duty upon the police to obtain potentially exculpatory evidence for the benefit of a criminal defendant. However, this Court has declined to impose such an obligation."  The court distinguished the type of affirmative duty that the Defendant was arguing for from the duty to preserve existing evidence that had long been recognized as a corollary to Brady.  The court's ruling was unanimous on this point.

Regarding the Defendant's assertion that his ability to cross-examine the police was improvidently limited, the majority held that the trial court did not abuse its discretion because there was too great a risk that the jury would have considered the bystanders' comments for the truth of the matter asserted.  In addition, the statements had limited value because whether the complainant initially had the knife was not that probative.

Chief Judge Lippman dissented but only as to the second issue.  He argued that there was no evidence that the trial judge actually exercised discretion.  The Chief Judge viewed it as a purely legal error on the trial court's part.  (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)

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)

 

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)  

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 overturns an Attempted Sexual Abuse conviction

In People v. Cecunjanin (Ct. App. 4/5/11) (Smith, J.) (7-0), a woman, who the court referred to as Catherine, was drinking heavily at a bar. Catherine's blood alcohol level after the incident was .267%. Catherine was brought into a back room closet by two men, one the owner of the bar and the other his friend. While in the closet she fought off their sexual advances and she was able to keep them from removing her shorts. Catherine refused to leave with the men and further fought off their advances by siting on the floor. 

The Defendant, the bar owner, was convicted of Attempted Sexual Abuse 1° and  Unlawful Imprisonment 2º.  The conviction was affirmed by the Appellate Division.  The Court of Appeals modified the judgment by vacating the conviction for Attempted Sexual Assault 1º.

Sexual Abuse 1º states, "A person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact . . . [w[hen the other person is incapable of consent by reason of being physically helpless . . . ." The Court of Appeals stated that the crime requires proof of both (1) sexual contact and (2) the victim must be unable to communicate an unwillingness to act, and that these elements must be present at the same time.

Here, though, the Defendant was charged with Attempted Sexual Abuse 1º.  The court posed a question: "If a person is physically helpless, how can an attempt to subject her to sexual contact fall short of success?"  The court theorized that it could happen if a third party intervened to prevent the contact.  Otherwise, if the victim stopped the attack, then by definiton he or she was not physically helpless.  "The People argue . . . that Catherine was physically helpless at the moment she prevented defendant from fondling her [in the bar, before going into the storage room]. The argument is self-refuting; she could not have blocked him if she were helpless. A reading of the record as a whole shows that Catherine may well have been physically helpless at some times, and that defendant may have attempted to subject her to sexual contact at other times, but there is no evidence that the two occurred together." 

This appears to have been a simple error by the prosecution in charging the wrong sexual assault crime.  Since the victim resisted and the Defendant was in dangerous proximity to completing the assault, the Defendant should have been charged with Attempted Sexual Abuse 1º (by forcible compulsion) or, if there was evidence that the Defendnat intended to have sexual intercourse, Attempted Rape 1º.  (MK/LC)

COA clarifies the contours of improper bolstering in child sexual abuse cases

Testimony from an expert witness is proper when it would help clarify an issue beyond the ken of the typical juror.  See People v. Taylor, 75 N.Y.2d 277, 288 (1990).  Expert testimony is improper where the sole reason for the testimony is to explain that the complainant’s version of the events is more believable than the defendant’s version.  See People v. Carroll, 47 N.Y.2d 431, 439 (1979).  Experts may not opine that the defendant is guilty.  See id.

In People v. Spicola (Ct. App. 3/31/2011) (Read, J.) (4-3), the Defendant was charged with six counts of Sodomy 1°, three counts of Sexual Abuse 1°, and one count of Endangering the Welfare of a Child based on events alleged to have occurred between six and seven years earlier.  The only evidence available was the complainant’s accusations, and thus the complainant’s credibility was a material issue at trial.

Upon disclosing the alleged abuse, the complainant was examined by a nurse practitioner.  At trial the People were permitted, over the Defendant’s objection, to question the nurse practitioner about the acts complainant recounted and the complainant’s demeanor during the examination.  On appeal, the Defendant argued that the nurse practitioner’s testimony improperly bolstered the complainant’s credibility by recounting the explanation of the acts and the complainant’s demeanor.

The Court of Appeals held that the nurse practitioner’s recounting of the acts the complainant described to her was properly admitted under the statements relevant to diagnosis and treatment exception to the hearsay rule as interpreted by People v. Ortega, 15 N.Y.3d 610 (2010).  The court held that this testimony did not amount to improper bolstering because it did not identify the Defendant and the nurse practitioner testified that she did not know whether complainant was being truthful. 

Before trial, the Defendant sought to preclude expert testimony concerning Child Sexual Abuse Accommodation Syndrome ("CSAAS").  CSAAS outlines characteristics thought to be common to children who report sexual abuse.  It includes secrecy, helplessness, entrapment, accommodation, delayed disclosure, and recantation.  Defendant argued that expert testimony was not necessary for a jury to understand that children who are sexually abused sometimes delay disclosing the abuse.  The trial court permitted the People to call a CSAAS expert to testify.

The prosecutor questioned the expert generally about CSAAS and then had the expert apply CSAAS analysis to several hypothetical scenarios, which the Defendant did not object to at trial.  On appeal, the Defendant argued that the CSAAS expert’s testimony improperly bolstered the complainant’s credibility and that the hypothetical scenarios improperly mirrored the facts of the case at hand.

The Court of Appeals reiterated the long held principle that evidence of symptoms of a psychological syndrome is admissible for the purpose of explaining confusing behavior to a jury.  Thus, the court found that the CSAAS expert’s testimony was admissible to rehabilitate the complainant’s credibility which was weakened by the multi-year delay in reporting.  The court held that defendant’s objection to the hypothetical scenarios on appeal was not preserved because objections were not raised at trial.

Chief Judge Lippman was joined by Judges Ciparick and Jones in dissent.  The dissent argued that complainant’s demeanor during the initial examination had no impact on medical diagnosis or treatment and thus the nurse practitioner’s testimony on that matter constituted improper bolstering of complainant’s credibility.  The dissent acknowledged that CSAAS expert testimony has been properly used to explain unusual behavior to a jury in the past, but argued that it was impermissible bolstering when the CSAAS expert confirmed almost every facet of the complainant’s testimony through the use of hypothetical questions. (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)