New York Criminal Law and Procedure

Bronx Merger ruled unconstitutional: The aftermath

Today, in People v. Correa (1st Dept. 2/23/2010), the First Department held that the Bronx Criminal Division (BCD) --- the experimental merger of Supreme Court and Criminal Court in Bronx County --- is unconstitutional.  More on the case later, but here are some preliminary thoughts on the "aftermath" of the decision.

So is that it, the merger is unconstitutional?

• We probably have not seen the last of this issue.
• Due to the magnitude of the issue involved, leave to appeal will likely be granted.  Once the case goes up to the Court of Appeals, I would imagine that Chief Judge Lippman, as one of the promulgators of the BCD enabling rules, will recuse himself. 

Doesn't this mean that tens of thousands of convictions will be overturned?

• The short answer: no.  The sky is not falling in Bronx County.
• The decision does not affect felonies, only Class A misdemeanors.
• Most misdemeanor defendants pleaded guilty and were likely satisfied with the plea agreements they reached with the People.  They received sentences like a conditional charge, time served, or a fine.  They will not be banging down the courthouse door trying to get a new trial.
• Of those defendants who do wish to use the decision as a way to overturn their convictions, most will have to overcome the problem of retroactivity.  While new decisions apply to cases in the direct appeal pipeline, most cases have been "final" for quite some time because defendants did not file  notices of appeal.  Thus, their only avenue is a 440 motion.  It is unclear whether Correa, if it is not overturned, will apply to cases on collateral review.

How does this affect cases calendared for tomorrow?

• It will not have much practical effect.
• Most of the judges in Bronx County are Criminal Court judges who are Acting JSCs. 
• The "up front" calendar parts are, to my knowledge, staffed only by Acting JSCs.  They can continue to hear both felony and misdemeanor cases.  When hearing felonies, they are wearing their AJSC hats.  When hearing misdemeanors, they are JCCs.
• The District Attorney's Office has hopefully captioned new accusatory instruments to say, "New York City Criminal Court" instead of "Bronx Supreme Court, Criminal Division."  Arraignments will continue to occur in the Criminal Court Arraignment Part.
• Trials of misdemeanors before JSCs who are not also JCCs should probably be adjourned until there is word on whether Correa will be stayed pending appeal to the Court of Appeals.

So what are the open questions?

• If the BCD is unconstitutional, the cases currently pending before it are a nullity.  Accusatory instruments will need to be refiled in the Criminal Court, unless one could argue that they were originally filed in Criminal Court and, since the order purporting to transfer them to the BCD was invalid, therefore they have "remained" in Criminal Court ever since.  If that is the case, nothing new has to happen except to amend the caption of each accusatory instrument.
• If accusatory instruments have to be refiled, what is the effect on 30.10 (limitations period) and 30.30 (prosecutorial readiness)?  Can they relate back to the original filing date if the court was unconstitutional?  (LC)

COA & AD1 - New Decisions

The Court of Appeals has announced new decisions:

• People v. Williams (Ct. App. 2/23/2010) (Graffeo, J.) - double jeopardy issues in PRS resentencing
• People v. McDade (Ct. App. 2/23/2010) (SSM) - evidence legally sufficient for Rape

In addition, the First Department has posted new decisions, including People v. Correa, which declared the merger of Bronx Supreme Court and the New York City Criminal Court in that county to be unconstitutional.

New COA case on witness bolstering and procedure for responding to jury notes

In People v. Ochoa (Ct. App. 2/16/2010) (PIgott, J.) (4-3) and People v. Figueroa (Ct. App. 2/16/2010) (Pigott, J.) (4-3), the defendants were tried jointly for a robbery.  The People alleged that the defendants forcibly stole a video game console from the complainant while the three of them and a fourth person were smoking crack-cocaine.  There were two issues on appeal: (1) whether the People improperly rehabilitated two impeached witnesses (the complainant and the fourth individual); and (2) whether Supreme Court properly responded to a note from the jury foreperson.

With respect to the witness rehabilitation issue, the complainant admitted that his testimony before the Grand Jury was inconsistent on several key points.  He explained that he was "confused" by the questions before the Grand Jury.  The prosecutor was allowed to ask the witness whether he was "confused" by other questions that concerned other aspects of the crime.  The other witness admitted to inconsistencies between her written statement to the police and her trial testimony.  The prosecutor was permitted to clarify whether the other information in the statement was correct.

The court found that both inquiries on redirect examination were proper because they explained or clarified the inconsistencies that were elicited on cross-examination.   The dissent responded, "This was not a case of clarifying or explaining a statement only partially examined by opposing counsel. This was an attempt to recast the entire testimony of two witnesses who had given many versions of the crime and surrounding events."

On balance, I think the majority got this issue right, although the case illustrates that one party's "clarification" is another's "bolstering."  A party attempting to rehabilitate a witness should avoid presenting the questions as a prior consistent statement (i.e., there were plenty of other more important statements that were not inconsistent and therefore the witness testified truthfully) but instead as clarification as to which of the prior statements were incorrect.

Regarding the second issue, after several days of deliberation, readbacks, and deadlocks, the jury announced it had reached a verdict.  The jury foreperson also sent a note to the judge stating that he had concerns about reading the verdict.  The court conducted an ex parte interview of the juror, during which the court explained how the verdict would be taken and the limited role the foreperson would play.  The juror "seemed relieved and said, 'Oh, okay, fine.'"  After the meeting, the court informed the parties of what had transpired; neither objected to the procedure.  The verdict was taken and the foreperson agreed that the verdict was his.

The Court of Appeals noted that it would have been a better practice for the trial court to have followed the procedures in CPL § 310.30: provide notice of the note and an opportunity to be heard to the parties before  it conducted its inquiry of the juror.  Nevertheless, the court found that the trial court did not abuse its discretion because the note was ambiguous and the subsequent conversation indicated that the juror was only as to the manner in which the verdict would be read.  Therefore, the inquiry was ministerial.  Since the parties could not have "provided a meaningful contribution" to the inquiry, their input was not required. 

The dissent, however, contended that the majority erred in considering the events after-the-fact (the substance of the conversation and the juror's response to the post-verdict polling) as evidence that the inquiry was ministerial. 

On this issue, I think the dissent has the better argument.  The only on-point case cited by the majority was People v. Hameed, 88 N.Y.2d 232 (1996).  But in that case the trial judge knew the inquiry would be ministerial because the juror's initial inquiry indicated that she wanted to know if she could attend church during sequestration.  Here, on the other hand, the juror's note was, to use the majority's description, "ambiguous."  This is precisely why the notice-and-be-heard provisions are so important.  What if the juror had said, "Well, I'm not comfortable reading the verdict because I was bullied into agreeing to it ..."?  I suppose the court could have told the juror to wait outside while he or she consulted with the parties, but by then the damage may have been irreparable.  The defense would have lost the opportunity to observe the initial questioning and the juror's reactions.  (LC)

Live video testimony of adult witnesses upheld by COA

Reversing the First Department, the Court of Appeals held in People v. Wrotten (Ct. App. 12/15/2009) (Ciparick, J.) (4-2) that Supreme Court has inherent authority to permit adults, as well as children, to testify via live video conference under appropriate circumstances.  I previously blogged about Wrotten when the First Department reversed the defendant's conviction.

The facts were fairly simple.  The complainant alleged the defendant, a home health aide, robbed him.  By the time the defendant's trial approached, the complainant's health deteriorated and he had moved to California to be near his children.  Doctors testified that it would be medically unwise for him to travel to New York to testify.  Accordingly, Supreme Court allowed him to testify via two-way closed-circuit testimony. 

Citing Ricardo B. and Judicial Law § 2-b(3), the Court of Appeals upheld this procedure:

By enacting Judiciary Law § 2-b (3), the Legislature has explicitly authorized the courts' use of innovative procedures where "necessary to carry into effect the powers and jurisdiction possessed by [the court]." Thus, as we have acknowledged, courts may fashion necessary procedures consistent with constitutional, statutory, and decisional law (see Ricardo B., 73 NY2d at 232-233 [a trial court has authority to empanel two juries, despite clear statutory references to a single jury and no statutory authorization for multiple juries]).

The court rejected the First Department's argument that other statutes---such as CPL Article 65 (governing live video testimony of child-witnesses), Article 680 (Examination on Commission), and Article 660 (Conditional Examinations)---implicitly forbade the procedure employed at trial.  Since these statutes did not prohibit the taking of videotaped testimony in this case, the trial court was free to employ Judiciary Law § 2-b(3).

Finally, the court concluded that the procedure complied with the Confrontation Clause.  Nevertheless, it offered a word of caution:

Live televised testimony is certainly not the equivalent of in-person testimony, and the decision to excuse a witness's presence in the courtroom should be weighed carefully. Televised testimony requires a case-specific finding of necessity; it is an exceptional procedure to be used only in exceptional circumstances. We do not decide here whether Supreme Court's finding of necessity rested on clear and convincing evidence, as the Appellate Division did not address that question. We only pass on whether Supreme Court had authority to utilize a procedure "necessary to carry into effect the powers and jurisdiction possessed by it" (Judiciary Law § 2-b [3]). As the dissent below correctly noted, "[i]n the absence of direction from the Legislature, Supreme Court retained discretion . . . to determine what steps, if any, could be taken to permit this prosecution to proceed notwithstanding the complaining witness's inability to be physically present in the courtroom" (Wrotten, 60 AD3d at 192).

In dissent, Judge Jones concluded that the comprehensive nature of CPL Article 65 led to "a strong inference that the Legislature intended to exclude grants of authority under other circumstances ... .  In my view, the detail that attends CPL Article 65, coupled with the CPL's silence as to other circumstances authorizing the admission of live two-way televised testimony, sets the parameters of the trial court's discretion. Thus, by allowing the instant complainant's testimony, the trial court exceeded its discretionary authority."

Judge Smith also dissented.  He joined Judge Jones' dissent on the statutory authority issue.  He would have gone further, however, and held that there was a constitutional violation.  Judge Smith wrote:

In Cintron and Craig, the harm to be avoided — emotional trauma to a child — would be caused by the confrontation itself; there was no way to avoid the harm except by dispensing with face to face confrontation. Here, the threatened harm is to the health of an elderly witness from the stress of travel, and there is a way to avoid that harm without depriving defendant of her confrontation right: bring the accused to the witness, instead of bringing the witness to the accused. In other words, the dilemma could be resolved by allowing the deposition or conditional examination of the complainant to be taken in California, with defendant present. It may well be that that solution is not available under New York's statutes, but this does not affect the constitutional analysis. New York cannot deprive defendant of her constitutional right by its Legislature's choice not to provide for a way of accommodating both that right and the witness's legitimate interest.

(LC).

AD3 - New Decision

There is one new decision from the Third Department, People v. Black (3d Dept. 8/26/2009).  It is an interesting case that highlights the problem of duplicitous counts.  The 36-count indictment charged various sex and endangering the welfare of a child offenses arising out of the defendant's sexual abuse of his girlfriend's step-granddaughter.  The court does a thorough analysis, demonstrating why certain counts were duplicitous and others were not.

Another aspect of the case caught the court's attention.  At sentencing, the court said it was imposing the maximum sentences on each count and directing that they run consecutive to each other where allowed by law.  The appellate court noted that the better practice is for a sentencing court to specify which counts run consecutive and which run concurrent.  The Appellate Division then did what the sentencing court should have done and applied the rules of consecutive/concurrent sentencing.  The aggregate term was modified to 9-to-28 years.  (LC)

Expansion of sex offender courts

State court administrators have promulgated new rules authorizing the creation of sex offender courts throughout the state and enabling certain courts to hear misdemeanors, not just felonies.  (LC)

When a judge answers a jury question inartfully

Except for readbacks of instructions, most judges respond to jury questions extemporaneously.  As a result, sometimes they misspeak, phrase things inartfully, or omit pieces of information.  In People v. Simmons (1st Dept. 8/4/2009), Justice Saxe, writing for the majority, concluded that a trial judge's inartful response to a jury question did not warrant reversal.

At issue was the trial court's answer to the jury's question about intent and whether the defendant could have formed the requisite intent in the spur of the moment.  The court said, "In this instance my answer is yes."  In affirming the judgment of conviction, the court explained:

These seven words present the nub of the difficulty, since, to the extent they are viewed in a vacuum, removed from the context of the instructions as a whole, these words seem to convey the sense that the court has made its own definitive determination that "in this instance" the defendant's spur of the moment action did, absolutely, "constitute intent."

But trial judges, like everyone else, may on occasion employ inartful phrasings, "which, isolated from their context, seem erroneous" (People v Drake, 7 NY3d at 33 [internal quotation marks & citation omitted]). It is for this reason that we are required to view the court's instruction to the jury in its entirety.

By the time it employed those seven words, the trial court had given the jury an extended charge regarding the element of intent. It had instructed that intent "is a mental operation that can be determined usually only by an examination of all the facts and circumstances surrounding the commission of a crime and the events leading up to, including and following it," that "its formation can be instantaneous or drawn out," and that "since intent is, as pointed out, a mental operation[,] it is not always easy to establish. It depends upon the peculiar circumstances of the case." By giving these additional instructions as to the considerations relevant to finding intent, before answering the jury's direct question, the court was in effect emphasizing its previous instruction that the question of whether the requisite intent was established remained one for the jury, not the judge, to decide.

The court then moved on to the jury's direct question, "Does a spur of the moment action constitute intent?" (which the court properly treated as if it read, "Can a spur of the moment action constitute an intentional act?"), and answered with the previously discussed language that ended with the words "In this instance my answer is yes." Since the jury's clear intent was to ask if a spur of the moment action could be intentional, the answer "Yes" meant not, "Yes, defendant harbored such an intent," but "Yes, defendant could have formed the necessary intent at the spur of the moment."

Moreover, the court rejected an argument that a hypothetical used by the trial court was improper:

Hypotheticals similar to the case at hand are proper as long as they are not so "strikingly similar" as to convey the judge's belief in the defendant's guilt and possibly compel the jury to reach a verdict "in harmony" with the judge's conclusion (see People v Hommel, 41 NY2d 427, 430 [1977]). The hypothetical used by the court, about a shooting precipitated by two men bumping into each other, bears little relationship to the fact pattern presented here, in which defendant approached the victim, confronted him about a prior incident, struck him and — as the jury found — shot him. The court's analogy was not so similar to the facts of this case as to convey the court's view of the evidence.

The majority also emphasized the difficult position that trial judges are in when they respond to jury questions:

When a deliberating jury requests additional instructions on an issue, the trial court must "respond meaningfully" (People v Malloy, 55 NY2d 296, 302 [1982], cert denied 459 US 847 [1982]). So, while trial judges must be careful when providing supplemental instructions beyond the studied language of the CJI, it is necessary that their answers actually be responsive to the particular question. A simple re-reading of the standard CJI instructions, to which cautious judges may prefer to limit themselves, may be insufficient to provide the clarification needed by the jury on a particular issue when the initial standard charge language failed to explain the point clearly enough. We therefore look to trial judges to exercise judgment and discretion in framing meaningful responses to jury questions. But, in exchange for imposing that responsibility, we must, in turn, allow for a degree of imperfection in the framing of such off-the-cuff answers. When a prejudicial impact is claimed, we should carefully examine the entire charge for its impact as a whole before sending the matter back for a new trial. Upon so doing here, we find that the charge, as a whole, conveyed that it was the jury's task to determine whether defendant harbored the requisite intent at the moment of the assault.

Justices Moskowitz and Acosta dissented. 

The court's answer to the jury's question about spur of the moment intent prejudiced defendant. In answering the jury's question, the court inadvertently answered the ultimate question in the case, because any reasonable juror could easily have concluded that, the words "in this context"referred to the case at hand and that "yes" meant that defendant had acted with intent (see People v Watkins, 157 AD2d at 307 ["a court may not suggest its own opinion as to guilt"]).

The court compounded the prejudice by givingthe jury a hypothetical involving "two guys" who "bump one another on the street" one says "[ ]screw you['] to the other guy and this guy pulls out a pistol and shoots him." This hypothetical was prejudicial because it closely resembled the prosecution's version of events: that defendant rode his bicycle into a courtyard where Mark was sitting, hit Mark and shot him. By giving this hypothetical and telling the jury that the criminal in the example acted with criminal intent, the court essentially instructed the jury that defendant intended to shoot Mark.

The court's instruction was particularly prejudicial given that it was hotly contested whether defendant brought his own gun to the scene or it was Mark's gun that discharged during the struggle with defendant. Which version of events to believe was critical to the determination of whether or not defendant had the requisite intent. The court's instruction took this determination away from the jury.

The dissent responded to the majority's concern for the dilemma faced by trial judges:

I am not unmindful of the difficulties trial judges face in responding meaningfully to questions from the jury. I recognize, as does the majority, that the standard charge may be insufficient to provide the jury with the information it needs to return a verdict. However, the paramount responsibility of a judge is to ensure a fair trial. Thus, while the majority would allow for "inartful phrasings" or "a degree of imperfection" in a judge's framing of "off-the-cuff answers," a question from the jury does not mean a judge may suggest his or her own opinion about the guilt of the defendant or offer a hypothetical that favors one side.

The issue was properly preserved, since the defense objected to the court's answer.  It seems to me that many of the dissent's concerns could have been resolved with a prompt curative instruction clarifying whatever in the initial response was inartfully worded.  (LC) 

Omnibus motion decided in People v. Monserrate

State Senator Hiram Monserrate is charged, in Queens Supreme Court, with various counts and degrees of assault, stemming from an alleged domestic dispute in December 2008.  Today, Supreme Court's decision addressing the defendant's omnibus motion was posted on the UCS website.  In sum, it appears that nearly all of the relief, including dismissal and suppression of evidence, that was sought by the defense was denied by Justice Erlbaum.  A September 14th trial date has been set.  (LC)

Court suppresses evidence based on admission of officer that he lacked probable cause

This week, the City Court of Rye (Lane, J.) suppressed evidence obtained as a result of a DWI checkpoint.  The defendant was stopped by a police officer, who noticed that the defendant had bloodshot eyes and the strong odor of an alcoholic beverage on his breath.  The defendant was pulled over to the side of the road for a secondary inspection and given three field sobriety tests, all of which he failed.  The court characterized portions of the officer's testimony as follows:

The police officer credibly testified during Defendant's counsel's well plotted cross-examination that he violated portions of the General Order in dealing with the Defendant. Significantly he testified that, in his view, he lacked the "probable cause" required by the protocol to both ask the Defendant to move his car to the side of the road and then to have him step from his vehicle to administer the psycho motor (i.e., field sobriety) tests.

Relying on the officer's "word" that he lacked probable cause, City Court held that it had "no choice but to conclude that these actions exceed the limited quantum of individual discretion allowed by the Scott standard."  In a footnote, however, the court acknowledged:

Ironically, this court believes (and, quite possibly, the experienced and able police officer may have believed at the time) that his observations of the Defendant's eyes and breath supplied the requisite reasonable suspicion for his subsequent directives to the Defendant and the "probable cause" (were that term to be used in its traditional legal sense outside the context of the protocol) for the Defendant's arrest.

At first blush, it appears that the court determined that the officer's legal conclusion took precedence over the court's own analysis of the legal standard.  If that is the case, I disagree with the court's holding.  Ordinarily, an officer's subjective reasons for conducting a search are irrelevant.  It is the court's determination of reasonable suspicion or probable cause that controls.  In the converse situation (if the officer subjectively believed that he had reasonable suspicion), the court would not have stopped its analysis but instead would have objectively determined if the facts in fact warranted the legal conclusion.  However, perhaps what the court was saying was that the police protocol in question required certain specific facts and the officer, under cross-examination, admitted those facts were not present.  This would explain why the court, in the body of its opinion, stated that "probable cause" had a unique and specific definition under the checkpoint policy.  If that was the case, then I would agree that the officer's admission warranted suppression.  It would be interesting to know more about Rye's checkpoint policy and what additional facts, if any, --- beyond bloodshot eyes and odor of alcoholic beverage --- are required for a secondary detention at a checkpoint.  (LC)

NYPD's illegal destruction of fireworks results in preclusion of evidence

June and July are busy months for illegal fireworks.  The NYPD and other police agencies step up enforcement efforts.  People v. Watson (Bronx Sup. Ct. 7/14/2009) (Price, J.) deals with the interesting but troublesome question of what the police must do with the fireworks that they seize.  The case highlights a split within many police departments between "enforcement" and "operational" units.  In many departments, fireworks and other explosives are handled by a bomb squad, which is not typically involved with traditional enforcement activities, such as making arrests or testifying in court.  As a result, they may not be as familiar with court procedure as other officers.

In Watson, Justice Price took the drastic step of imposing preclusion as a remedy for the unauthorized destruction --- by the NYPD Bomb Squad --- of the alleged fireworks that were seized from the defendant.  The People acknowledged that the police destroyed the seized evidence in violation of Penal Law § 405.05, which provides: 

Fireworks possessed unlawfully may be seized by any peace officer, acting pursuant to his special duties, or a police officer, who must deliver the same to the Magistrate before whom the person arrested is required to be taken. The Magistrate must, upon the examination of the defendant . . . determine whether the fireworks had been possessed by the defendant in violation of the provisions of section 270.00; and if he finds such fireworks had been possessed by the defendant, he must cause such fireworks to be destroyed, in a way safe for the particular type of such fireworks, or be delivered to the district attorney of the county in which the defendant is liable to indictment or trial, as the interests of justice and public safety may, in his opinion, require.

Penal Law § 405.05 reflects a careful balancing between the police department's legitimate interest in not leaving large quantities of explosives lying around and the defendant's right to present a defense on an element of the crime.  

Regarding the sanction, Justice Price held that preclusion and not an adverse inference charge was the appropriate remedy for the violation of Penal Law § 405.05 and the corresponding constitutional duty of the State to preserve evidence:

This court is certainly reluctant to preclude the People's evidence. Under all the circumstances presented to this court, however, this court has come to the inescapable conclusion that it is the only sanction commensurate with the intentional, inexcusable and complete destruction of the alleged fireworks. Combined, the officers' abject failure to comply with PL 405.05, failure to notify or consult with the District Attorney, failure to preserve a sample, failure to perform any physical or chemical analysis, failure to photograph the contents of the boxes, failure to videotape the destruction proceeding, and failure to memorialize a complete record of the officers' findings and observations before the defendant had an opportunity to inspect them, deprived the defendant of his right to a fair trial.

The People's argument that preclusion is tantamount to an outright dismissal due to the lack of other evidence to establish the charged offenses merely strengthens this court's analysis warranting preclusion. If, indeed, the testimony and evidence concerning the seized fireworks is central to the prosecution's case, it stands to reason that it is also central to the defendant's ability to prepare a meaningful defense. Consequently, their immediate and unilateral destruction in contravention of PL 405.05 unjustifiably prejudices defendant. It is entirely conceivable then, that imposing the sanction of preclusion will resonate so as to ensure future compliance with New York Penal Law § 405.05.

(LC)

COA - New Decision

The Court of Appeals has posted a new decision, People v. Almeter (Ct. App. 6/24/2009) (Lippman, C.J.).

Ordinarily, when an information charges both a misdemeanor and a violation, both charges are submitted to the jury.  See CPL § 340.40(3).  In Altmeter, the defendant was charged with two offenses: Assault 3˚ and Trespass.  The crimes were alleged to have resulted from the same incident: Defendant's refusal to leave the complainant's property, followed by the defendant striking the complainant.  However, the  charges were contained in two separate accusatory instruments.

Near the end of the trial, the prosecutor asked the court whether it intended to render a decision on the trespass charge.  The court responded: "Yes. Yes. [Defense counsel], my practice, if I have violation charges as well as misdemeanor charges, is to have the jury handle statutorily their duty, which is misdemeanor verdict, and have the violation charge handled by this Court, decided by this Court."  The defense attorney indicated that he was not aware of this practice.  The defendant was later acquitted of the assault charge but found guilty, by the court, of Trespass.  County Court affirmed.

The Court of Appeals reversed, but declined to rule on whether CPL § 340.40(3) applies if the charges are contained in two separate accusatory instruments:

It would appear to us evident that if, contrary to reasonable expectation, two trials were to be simultaneously held before different fact-finders, the court was obliged to inform defendant and his counsel of this unique mode of proceeding from the outset.

Defendant was unaware that each of his offenses was being tried to a separate fact finder until the trial was nearly over. The charges were all along treated as if they had been consolidated and, until the prosecutor raised the issue, nothing happened to disabuse defendant of that notion. It would seem fundamental that a defendant should not be required to guess who the fact finder is at his or her trial. As there was every indication that both charges were being tried by the jury, defendant should have been given notice that that in fact would not be the case, and, since there would be more than one fact-finder, of which fact finder would be deciding which charge. This is so, at least in part, because counsel may well determine that a different trial strategy is warranted based upon whether a particular charge is being presented to a judge or to a jury.

While the court may have deemed this particular procedure economical, the economy was a false one where the defendant was not timely advised that his charges were to be tried by separate fact finders.

(LC).

City Bar: Bronx Merger Project Suffering From a Lack of Judges

The New York Law Journal has a free (with registration) article about the Bronx Criminal Division, an experimental merger of the Supreme and Criminal courts in that county.  The Law Journal article discusses a recent report from the New York City Bar criticizing the lack of judges assigned to the merged court.  As a result, the report concludes, there is a growing backlog in felony cases.  (LC)

Notations on Felony Complaint to Reduce to Misdemeanor

In People v. Williams (2d Term 6/2/2009), the defendant was originally charged, by felony complaint, with Grand Larceny 3˙.  The charges were reduced to Petit Larceny and he pleaded guilty.  One of his contentions on appeal was that it was error for the prosecutor to have made the requisite notations on the complaint to effectuate the reduction. 

The Appellate Term, Second Department, rejected the defendant's argument.  The court noted that the statute states that the court "may order" the reduction --- not that the physical notations must themselves be made by the judge.  In any event, the court found that any "technical deviation" from CPL § 180.50 was not a "mode of proceedings" error that excused the lack of objection.  The court also found that the defendant's guilty plea forfeited any claim.  (LC) 

PRS Civil Suits

I rarely report on civil cases, but I came across one today that I thought would be of interest.  As you know, postrelease supervision (PRS) is mandated by statute for determinate sentences.  A few years ago, the Department of Correctional Services (DOCS) recognized that some judges were not including PRS when they orally pronounced sentences.  DOCS, therefore, administratively imposed a term of PRS to sentences that did not include the mandatory supervision period.  Some of these defendants violated the conditions of their supervision and were sent back to prison.  The Court of Appeals, in a number of rulings, held that a defendant who pleads guilty must be advised if PRS will be added to his sentence, that DOCS cannot administratively add PRS, but that a sentencing court has inherent authority to re-sentence an offender so that the mandated period of PRS is judicially-imposed.

In Donald v. State (Ct. Cl. 2/5/2009), the claimant served time in prison based on a violation of PRS that had been imposed by DOCS.  He has now brought a lawsuit against the State, alleging that he was improperly confined and that he should be compensated.  The court granted partial summary judgment in favor of the claimant on the question of liability.  There will now be a trial on the question of damages.

The court rejected the State's argument that DOCS' administrative imposition of PRS was "privileged:"

DOCS imposition of post-release supervision on claimant was done not "under color of law or regulation, specifically in accordance with regulations," but rather was unlawful, beyond its jurisdiction and a legal nullity. Such conduct cannot be said to be privileged.

...

Because the imposition of post-release supervision on claimant by DOCS was a legal nullity, claimant could not be lawfully confined for violating its terms. Any period of claimant's confinement caused by DOCS' unlawful and extra-jurisdictional imposition of the post-release supervision is not privileged and is actionable by claimant.

(LC)

Inventory Searches: The Factual Predicate

I have taught Criminal Procedure—the law of search and seizure—several times.  It is a fascinating subject.  I find the law of inventory searches particularly interesting.  Unfortunately, I have observed many cases where key evidence was suppressed because the prosecutor did not properly elicit the requisite factual predicate for the search itself.  People v. Farquharson (Sup. Ct. Bronx Co. 1/26/2009) is one such case.  In a written decision posted this week, Justice Dawson suppressed evidence recovered during a purported inventory search.

The case was a simple DWI.  Highway unit officers observed the defendant driving erratically.  When they pulled him over, they detected the usual signs of intoxication and observed marijuana in plain view.  They arrested the defendant.  During a subsequent search of the vehicle, the officers discovered additional drugs.

The sole testimony regarding the inventory procedure was summarized by the court:

According to [Police Officer] Wiley, the standard police procedure in such a situation is to take custody of the vehicle by towing it and to perform an inventory search of the vehicle. Id. Wiley testified that an inventory search of the vehicle is done to make sure there are no valuables left unsecured in the vehicle for which Wiley would be responsible. Id. Wiley recovered the two bags of marihuana from the vehicle and then, during an alleged inventory search of the Pathfinder, he seized an additional six bags of marihuana from a radio box on the rear seat. Id. There was no other testimony regarding police procedures for inventory searches, or whether they were followed in this case. After the marihuana was recovered, Vickery testified that the police continued to search the car for more drugs or weapons.

The court suppressed the second set of drugs because the People had not established that the police were conducting a proper inventory search:

In People v. Johnson, 1 NY3d 252 (2003), the Court of Appeals held that the People had the "burden of establishing a valid inventory search" at a suppression hearing, and that the purposes of an inventory search were threefold: "to protect the property of the defendant, to protect the police against any claim of lost property, and to protect police personnel from any dangerous instruments." Id. at 256 (citation omitted). To meet that burden, the People should produce evidence demonstrating: (1) the existence of a departmental policy regarding inventory searches, (2) that the policy is "rationally designed to meet the objectives that justify inventory searches," and (3) that the particular search was conducted properly and in compliance with established procedures. See id.Id. The Court concludes that the People did not meet their burden of establishing the existence of any of the foregoing. Indeed, Vickery rather candidly testified that after the marihuana was recovered, "we searched the vehicle more for any kind of drugs of weapons[]" and "that's why the car was searched more." See, Hearing Minutes at p. 40. This is exactly the type of "general rummaging . . . to discover incriminating evidence" that Johnson prohibits. See Johnson, 1 NY3d at 256 (internal quotation marks and citation omitted); see also People v. Gomez, 50 AD3d 407, 408 (1st Dept.) (suppressing physical evidence recovered pursuant to alleged inventory search because the People failed to establish compliance with Johnson), lv. to appeal granted, 2008 NY Slip Op. 74219(U) (June 10, 2008). Further, the "hallmark" of a real inventory search is the creation of a meaningful inventory list of the vehicle's contents.

In order to meet the Johnson standard, prosecutors should:

• Introduce into evidence the relevant police department's inventory search procedure.  The NYPD's is contained in its Patrol Guide.  A certified copy of the section on inventory searches should be introduced into evidence as People's Exhibit #1.  It is the most important piece of evidence at a suppression hearing where the People intend to rely on the inventory search exception.
• Determine whether the police followed the procedure.  If the officers substantially deviated from the policy, it is likely the evidence will be suppressed.  However, minor deviations are not necessarily going to result in suppression.  I argued, for example, in People v. Moya that the police were justified in doing an on-the-scene search, rather than at the impound lot, because they had already discovered at least one drug trap and the car was blocking a bus stop and needed to be moved immediately.  There was insufficient time to wait for a tow truck.  For the officer's safety, he was justified in conducting the inventory search on the scene.  The First Department upheld the search.
• Elicit from the police officer how he or she followed the procedure.  Have the officer discuss the training he received at the Police Academy concerning inventory searches.
• Elicit from the police officer why he or she conducted the search. 
• Introduce into evidence the inventory form that was created.  The NYPD uses a special voucher for vehicles.  It must be introduced into evidence.  If it was not created, the case will likely fall outside of the inventory search exception. 

In short, this is not an area in the police officer's direct examination that can be quickly glossed over.

In addition, police departments must ensure that their officers receive training on:

• the reasons for the inventory search exception (officer safety, safeguarding valuables, protecting against false claims of loss);
• the importance of conducting a thorough search.  After all, the purpose is not just to find weapons but also to locate valuables that should be inventoried;  and
• how to fill out the department's inventory form.

(LC)

Notice of Right to Testify Before the Grand Jury

In People v. Klahn (Cattaraugus Co. Ct. 1/21/2009), Judge Himelein granted a defendant's motion to dismiss the indictment, with leave to the People to re-present, because the defendant was denied the opportunity to testify before the Grand Jury.

The facts were simple.  The defendant, initially pro se, was arraigned before the Town Court on burglary charges.  The defendant then retained counsel, who wrote the prosecutor and requested that the case be "diaried."  In the meantime, Town Court forwarded the case to County Court and the defendant was indicted.

County Court held that, on the record before it, the defendant had been denied his right to testify before the Grand Jury:

Here, defendant had been arraigned in the local court and was presumptively entitled to the notice. It is unclear from the papers if defendant appeared again in Town Court. The district attorney's answering papers shed no light on what occurred in the local court, stating only that the case was "divested" to county court on June 19, 2008.

The Court of Appeals had steadfastly protected the "valued statutory option" for a defendant to testify at the grand jury (People v. Evans, 79 NY2d 407, 413- 414, 583 NYS2d 358 [1992]; People v. Smith, 87 NY2d 715, 642 NYS2d 568 [1996]). Here, the forwarding of the papers to county court without a preliminary hearing being held or waived, was an improper divestiture.

Anticipating the district attorney's argument that his office cannot know whether a preliminary hearing was validly waived or not, several points must be made. First, the divestiture papers forwarded from Town Court to the district attorney's office show that a hearing was neither held nor waived. Further, the district attorney's office knew that Mr. Vella represented the defendant and it would have been a simple matter to send him a grand jury notice. Finally, given what the Court of Appeals has said about the importance of a defendant's right to appear before a grand jury, the onus would appear to be on the People to insure that a defendant is not denied that right.

County Court concluded with an interesting observation about the end result:

The court wonders about the efficacy of this decision since it is doubtful that defendant will actually testify at a future grand jury.

(LC)

EWC - The Case of the Intoxicated Defendant, Temporary Abandonment, and the Dirty/Squalid Apartment

NYC Criminal Court Judge Elisa S. Koenderman recently decided the defendant's motion to dismiss a complaint for facial sufficiency in People v. Perez (NYC Crim. Ct. 1/12/2009).  In Perez, the defendant was charged with four counts of Endangering the Welfare of a Child (EWC) based on the following set of facts:

[O]n June 22, 2008 at approximately 3:12 a.m., while in an intoxicated condition after having consumed "three (3) bottles of Corona and two (2) forty (40) ounce bottles of Heineken," the defendant left her four children ranging in age from one to thirteen years, alone for ten minutes in an apartment where there was "urine on the floor . . cockroaches crawling on the floor of the apartment, in the kitchen, on the mattresses, and crawling over the sleeping children . . . dirty clothes and laundry all over the apartment . . . dirty pots and pans in the kitchen . . . [and] clorox bleach bottles in the tub of the dirty bathroom." The complaint further alleges that there was no crib for the one-year-old. Lastly, the complaint alleges that the defendant admitted that she was the mother of the children and that she was responsible for their care at the time.

The court summarized its decision as follows:

Contrary to defendant's contention, the defendant did more than just leave her children alone in an apartment for ten minutes, or drink five bottles of beer while responsible for the care of her children, or keep a dirty house. The defendant isolates each one of these actions from the other, and in so doing, attempts to characterize each action in and of itself as noncriminal, if not wholly innocuous. But the defendant did not simply do one of these things separately and apart from the others; she did all of these things in conjunction, and the entirety of her alleged conduct, both her acts and omissions, provide reasonable cause to believe that she committed the offense of Endangering the Welfare of a Child against each one of her children.

Nevertheless, the court granted the motion to dismiss, with granting the People leave to refile a superseding complaint, because the complaint, as drafted, did not contain non-hearsay allegations of the children's ages:

Although the complaint does contain admissions from the defendant that she is the children's mother and is responsible for their care, because of the way in which the complaint is drafted, the allegations as to the dates of birth of the complainants cannot be attributed to her. The defendant's admissions concerning her relationship and responsibility toward the complainants are contained in the fourth factual paragraph, and are made by the deponent officer as "informed by" the defendant. The allegations regarding the complainants' dates of birth are contained in the third factual paragraph and are made directly by the deponent officer. Had the complaint been drafted such that the allegations as to the complainants' dates of birth were made by the deponent officer as "informed by" the defendant, their admitted mother, they would not be hearsay (Prince, Richardson on Evidence § 8-201, et seq. [Farrell 11th ed]). Since, however, these allegations are made by the deponent officer, who was not present at the complainants' birth, they are rank hearsay. Moreover, no birth certificate, or other supporting deposition, has been filed to convert these allegations to non-hearsay. Accordingly, the complaint may not be deemed a facially sufficient information.

Perez contains a helpful summary of the law of EWC and is worth a read if you handle these types of cases on a frequent basis. 

Ultimately, while I agree with Judge Koenderman's legal analysis, I question whether a prosecution of this case in Criminal Court is the best move by the government.  If the facts of the complaint are accurate, there is a good case for a finding of civil neglect and for intervention by child welfare authorities.  There may be remedies, short of removal and termination of parental rights, that can help this family.  The Family Court is in the best position to provide help to this family, given the availability of law guardians, social workers, and various placement options in that court.  The criminal justice system, on the other hand, is ill-equipped to rehabilitate a broken family environment.  Of course, there is no reason why two prosecutions --- criminal and civil --- cannot happen simultaneously.  However, I'm not sure how criminal prosecution, on top of a Family Court case, would help matters for the defendant's children.  (LC)

PRS Watch: Sullivan County Court Rejects Double Jeopardy Arguments and Orders Resentencing

Sullivan County Court Judge Frank LaBuda recently decided People v. Embry (Sullivan Co. Ct. 1/9/2009), granting the People's motion for resentencing so that the defendant could be sentenced to a period of PRS.  The court rejected the defendant's due process and double jeopardy arguments:

Defendant asserts that resentencing him to an additional term of PRS is "fundamentally unfair" and violates his Fourteenth Amendment Due Process rights. Defendant cites to a First Circuit case, DeWitt v. Ventetoulo, 6 F.3d 32 (1st Cir. 1993), in which a defendant with a life sentence was granted parole a few years too early with no evidence that he knew he went for parole too early and then settled into his new life. In that case, the Court of Appeals held that it would violate his Due Process rights to resentence the defendant to life in prison. However, this Court is not persuaded by the 1st Circuit.

As the Ventetoulo court itself noted, precepts in due process rights "are very general, and everything depends on the circumstances." Id. at XX. The circumstances in this case pale in comparison to Ventetoulo.

In the case at hand, DOCS immediately added the required PRS when the defendant entered the prison system. Defendant admits that he know about the PRS shortly after he was incarcerated. Moreover, any resentence in this case does not involve life in prison, nor does it involve any incarceration. Thus, this Court finds it "fundamentally fair" to add a term of PRS to a criminal defendant when the defendant was originally required to get a term of PRS and knew soon after his incarceration period that the People planned to add a term of PRS to his sentence.

...

Defendant asserts that the Double Jeopardy clause of the Sixth Amendment does not allow for his resentencing. Defendant cites to United States v. Difrancesco, 449 U.S. 117 (1980), the United States Supreme Court which promulgated an "expectation of finality" standard for all resentencing-Double Jeopardy claims. Defendant maintains that he had an "expectation of finality" when he was sentenced to a term without PRS. However, Defendant's reliance on Difrancesco leads to his argument's undoing.

Difrancesco came about from a racketeering conviction sentence that the United States Attorney felt was too lenient. After their appeal for a resentence was dismissed on Double Jeopardy grounds by the Court of Appeals, the U.S. Supreme Court accepted certiorari. The Supreme Court in its analysis promulgated a Double Jeopardy multiple punishments standard in which the issue to look at is whether the criminal defendant had an "expectation of finality". Applying their standard to the facts before them, the Court reversed the Court of Appeals, holding that since the racketeering statute that he was convicted under specifically provided for prosecutorial appeal of a too-lenient sentence the defendant cannot claim that he had an "expectation of finality". If, as Difrancesco held, the possibility of prosecutorial appeal precludes an "expectation of finality", a fortiori, in this case, where the original sentence was invalid, the defendant cannot claim an "expectation of finality".

Another case Defendant marshals for support is United States v. Rico, 902 F.2d 1065 (2d Cir. 1990). In Rico, a defendant facing drug charges, agreed to a three-year prison sentence. However, at the sentencing hearing, the government was represented by another Assistant Attorney who was unfamiliar with the plea agreement and erroneously stated that the agreement was for time served; the defendant was then released. Three days later, the government notified the court about the mistake, and the court commended a hearing in which it resentenced the defendant to the correct three-year sentence. The Court of Appeals upheld the resentence in the face of a Double Jeopardy challenge, reasoning that any "expectation of finality" was unreasonable considering the defendant knew there was a mistake.

Notwithstanding its result, Defendant relies on Rico, supra. Defendant points to where the Rico Court mentioned that the mistaken sentence included PRS, so the defendant was still serving the first sentence at the time of the resentence. Defendant extrapolates from this that in the 2nd Circuit resentencing will violate the Double Jeopardy clause if the defendant is no longer serving the resentencing court's original sentence. Thus, Defendant argues that having finished serving this Court's original sentence any resentence runs head-on into Double Jeopardy.

However, this Court does not share the opinion taken by the defendant. From the general context of the decision, it is clear that the Rico court did not intend to make Double Jeopardy dependant on whether the defendant was still serving the original sentence. Rico was following Difrancesco's lead and making an "expectation of finality" analysis. The Rico Court brought up the fact that the defendant was still under the original sentence to point out that technically the whole Double Jeopardy issue does not apply to that defendant. Double Jeopardy only applies when there is a resentence after the original term has expired.

In addition, "[T]he expectation of finality comes from the prospect of release as defendant nears the end of his or her prison term. See, Breest v. Helgemoe, 579 F.2d 95, 101 (1st Cir.), cert. denied, 439 U.S. 933 (1978). In this case, Defendant knew about the additional PRS at the beginning of his sentence.

 (LC).

PRS Watch: Albany Supreme Court Dismisses DOCS Lawsuit Seeking Declaratory Judgment

In State of New York v. Myers (Sup. Ct. Albany Co. 12/24/2008), DOCS sought a declaratory judgment "permitting plaintiffs to maintain custody of 'tens of thousands of violent felons' who may have been illegally sentenced to post-release supervision ... so that they may be systematically referred back to the sentencing courts, where all the necessary parties can be heard on the issues arising out of the illegal sentences."

Ruling on justiciability and due process grounds, Justice Egan granted the defendants' motion to dismiss:

Here, the plaintiffs' complaint does not set forth any real and substantial controversy between themselves and the defendants. In opposition to the defendants' motion to dismiss, plaintiffs have alleged hypothetical questions resulting from the 2008 post-release supervision Legislation. Yet, with no circumstance identified to which each of these hypothetical questions might apply, the declaration sought would be the equivalent of an request for an advisory opinion. Long Is. Light. Co., 71 NY2d at 354. For this reason alone, the plaintiffs' complaint should be dismissed. ...

While this Court understands and does not necessarily condemn the plaintiffs' motives in bringing the instant action, plaintiffs have failed to set forth any precedent for initiating an action against a class of unnamed defendants where the end result could be the continued incarceration of individuals, some of whom have already served and completed their sentences. It is undisputed that defendants as a class belong to subclasses of incarcerated inmates and releasees, some of whom have completed their underlying determinate terms. It is also undisputed that plaintiffs have not been able to identify all of the defendant class members. We do not, in this Country, adjudicate the rights of criminal defendants en masse for the simple reason that it is unfair and a denial of basic due process. Moreover, plaintiffs are admittedly in possession of the sentencing information of some individuals. This provides the plaintiffs with immediate information as to whether post-release supervision was illegally imposed. Yet, plaintiffs' broad request for relief would keep individuals, even those known to be not subject to post-release supervision under Garner and Sparber, in custody.

(LC)

Defendant's Right to Testify Before the Grand Jury Violated

A defendant has a right to testify before the Grand Jury.  In People v. Maddox (Sup. Ct. Monroe Co. 12/1/2008), Justice Egan concluded that the defendant's right was violated because the prosecutor directed the examination, never permitting the defendant to tell his side in narrative form.

The court summarized the Grand Jury testimony:

After the oath and acknowledgment of the waiver of immunity, Defendant's testimony began. The prosecutor began the questioning by stating to Defendant: "I'll give you the floor so you can explain what you were doing and where you were on a particular date, time and location, okay?" (Tr. p. 47, lines 6-9). After drawing Defendant's attention to the date in question, the prosecutor told Defendant: "I'm going to bring your attention now to - - it's going to be Wednesday, September 17, at approximately 11:08 p.m.. I'm simply going to ask you if you know where you were on that night, and if you were with anyone, explain who you were with, where you were at; and if you were in a motor vehicle, explain how it is you got there, and what happened that night shortly after 11 o' clock . Okay?". (Tr.p. 47, lines 11-19).

After this introductory matter, the prosecutor, rather than permit the Defendant to offer a narrative of events in the day in question, proceeded to question the Defendant on certain pedigree matters and his putative associations with co-defendants in the case. Nine pages of transcript later the questioning finally turned to the events in question. All the while, the prosecutor was directing the manner of questioning and the topics. At page 56 of the transcript the prosecutor finally began to direct the testimony of the Defendant concerning the transaction at issue. The questioning was interspersed with imperatives and questions such as: "[s]o describe what happened next? [Tr. p. 56 , l. 9] and "[a]re you familiar with the area?". The questioning continued until page 75 of the transcript. Most of the mode of questioning during the balance of Defendant's testimony was a hybrid of direct and cross examination. There were two attempts at impeachment of Defendant's testimony with prior criminal convictions. The prosecutor's general tone of questioning was vigorous and at times confrontational all in the absence of Defendant first having an opportunity to deliver a narrative in his own words.

The court found that this violated CPL § 190.50:

Criminal Procedure Law (hereinafter, "CPL") §190.50(5)(b) requires that where a person has executed a waiver of immunity, "such person must be permitted to testify before the grand jury and to give any relevant and competent evidence concerning the case under consideration." See CPL §190.50(5)(b). A defendant testifying before a grand jury must be given an opportunity to give his own version of the events before being examined by the prosecutor. People v. Smith, 84 NY2d 998, 1000 (1994). Not only must a defendant be accorded an opportunity to give his own version of events first in narrative fashion, but he must also be given that same opportunity without being interrupted. People v. Lerman, 116 AD2d 665, 666 (2nd Dept. 1986).

Lesson learned for prosecutors?  When a defendant testifies, provide him with an opportunity to tell his side of the story before asking questions.  It might be helpful to conclude a defendant's Grand Jury testimony with a question like, "Is there anything else about the incident in question that you would like to say?"  Although such a question might invite a rambling plea for mercy, it nevertheless helps to avoid the type of problem discussion in this case.  (LC)

Ready in the calendar part, not ready in the trial part - 30.30 motion granted

People v. Murray (Sup. Ct. Bronx County 11/20/2008) is an interesting case out of Bronx County dealing with the question of when the People are actually "ready for trial" under CPL § 30.30.  Justice Fabrizio granted the defendant's 30.30 motion. 

The critical court date was October 16.  In a calendar part earlier in the day, the People unequivocally announced ready for hearings and trial and the case was sent out to a trial part.  Once in the trial part that afternoon, the People indicated that one of their witnesses -- a key witness for both hearings and trial -- was available that day but, afterward, would not be available again for another 11 days.  The case was returned to the calendar part and the resulting delay was charged to the People:

The People's inability to complete pretrial hearings is a well-recognized impediment to a case going to trial. See People v. McKenna, 76 NY2d 59, 64 (1985); People v. Simpkins, 193 Misc 2d 148, 151 (Crim. Ct. Bronx County 2001), aff'd, 193 Misc 2d 447 (App. Term. 1st Dept. 2002), lv to appeal denied, 99 NY2d 583 (2003). Here, the People had ample time to prepare for the hearings, which were ordered on February 13, 2008, some 10 months earlier. Moreover, they were advised in court on the record on October 9, 2008 that they had only 4 additional days within which to state ready for trial, and they were given a choice to pick any day that they wanted for trial. They picked October 16, 2008 as the date for trial. But, as it turned out, for reasons they never even attempted to explain to the trial judge, a necessary police witness was "unavailable" to testify for the next eleven days. And, in this case, the witness was not even going to be able to complete his hearing testimony that day.

Thus, the People's statement that they were in fact "ready" to proceed to trial on October 16, 2008 is without merit. At most, they were able to start a hearing, but not complete it. That is, of course, tantamount to not being ready for trial at all. Where the prosecution is unable to do more than commence a suppression hearing, and that inability leads to an adjournment of the case, that adjournment is "the exclusive responsibility of the People and requires the assessment of time for that post-readiness delay." Simpkins, 193 Misc 2d at 152 - 155.

The People further argue that since the case was not sent out for trial until the afternoon hours, they should not bear the responsibility for the adjournment. Cases are, of course, sent out for trial throughout the day. And, in fact, it is a common practice in this county, for a variety of reasons, for cases to be called in the morning and for assistant district attorneys to request a second call in the afternoon to begin a trial. The People allege that this case was not called until "five and one half hours after the case was scheduled to be called," and that both the defense attorney and the Court should actually shoulder the responsibility for the People's inability to try the case that day. While it is certainly this Court's preference to call all cases on its calendar as close to 9:30 a.m. as possible, there is nothing in the record to support the People's argument that this case was itself given some preference for a call at 9:30 a.m., let alone that the Court was somehow aware that the People could only really be ready to go to trial at 9:30 a.m. that day, and no later. If the People were in such dire straits, it would be appropriate for them to bring this fact to the Court's attention. But, the record discloses, beyond cavil, that the prosecutor was not aware of the fact that the witness was not going to be available, for whatever reason, for an 11 day period at any time before the case was actually before the trial judge, in the afternoon. The prosecutor said, to the trial judge, in no uncertain terms, that he "just found out [the police witness is] also unavailable tomorrow." The prosecutor who answered "ready" for trial in the calendar part that afternoon did so unequivocally. To now suggest that the prosecutor knew at 9:30 a.m. that the police witness could not come in the next day, and the next week, to testify, and then attempt to argue that the reason for the adjournment is due to "the court's congested calendar," and not the extended unavailability of their own witness, is baffling.

In any event, when the People state ready for trial, whether in the morning, or in the afternoon of a court day, it is assumed that the statement is one of present readiness to proceed that day, and for all of that day, and that they will not be sent out to a trial judge for purposes of asking for an adjournment. They claim, without any basis in the record to support this claim, that if the case had been called in the morning, and if the case had been sent out for trial in the morning, then not only would they have been able to complete the hearing, but they also would have been able to have the "unavailable" witness complete his trial testimony all in the same day. Of course, we will never know if that would have been true, because it never happened that way. They did state ready for trial on the record, in open court, when the case was actually called after the lunch break. Moreover, their argument amounts to nothing more than unsupported speculation. They needed to be ready for trial that day, and they needed to complete the hearing before the case could be tried. The defendant, of course, always reserves the right to choose to testify at a suppression hearing, and to call any witnesses, and that precludes any finding that the People's prophesy is a valid one. Moreover, defense counsel raised a serious issue after the People turned over very late discovery to him when the case reached the trial judge. It seemed that counsel claimed that there were statements alleged to have been made by the defendant contained in the discovery, including a written statement by the defendant, that counsel claimed had never been provided to him in the 17 months the case was pending. Thus, the scope of the hearing itself had to be settled before testimony could even begin. Put simply, as with many cases, issues arose before the trial judge that needed to be addressed before testimony could be taken, which seriously calls into question the validity of the People's optimistic time line.

(LC)

Release of PSR to defendant denied

Often, a defendant serving a prison sentence will seek to obtain a copy of his or her presentence report in order to prepare for a parole hearing or litigate a claim on direct or collateral review.  Justice DiMango of Brooklyn Supreme Court recently issue an opinion in People v. Johnson that gives a good overview of the law on the subject.  The court concluded that release of the PSR in the defendant's case was not warranted.

A History of the PRS Saga

In People v. Rogers (10/28/08), a Kings County Supreme case, Justice Goldberg provides a concise and effective summary of the Catu litigation concerning post-release supervision as well as the recent case, Sparber, where the Court of Appeals approved of the resentencing of defendants for the judicial imposition of PRS.   

The defendant in Rogers opposed resentencing, raising, in part, a Double Jeopardy argument.  The court rejected that claim, noting:

[I]n this case the defendant, from the perspective of an objective legal observer, did not have a legitimate expectation that PRS would not be a part of his sentence based on the fact that PRS (1) was statutorily mandated, (2) had been administratively imposed by DOCS with the approval of New York appellate courts in other cases where the sentencing court had failed to do so, (3) when that administrative procedure was held to be improper in Earley and Garner, those decisions, as well as the decision in Sparber, noted that resentencing to include a term of PRS would not be improper, and (4) following the decisions in Garner and Sparber, legislation to accomplish these resentencings was promptly enacted.

For those just getting acclimated to the PRS issue, Rogers is a helpful read.  It should be interesting to see how the Double Jeopardy litigation plays out.  (LC)