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)

Another reversal for equivocal answers by juror

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

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

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

COA reverses jury selection case in summary fashion

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

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

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

Is 5 minutes enough time for voir dire?

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

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

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

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

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

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

The trial judge was Justice Ruth Pickholz.  (LC)

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)

Court’s discretion to discharge a sleepy juror

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

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

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

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

Trial court's duty when defendant moves to substitute counsel

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

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

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

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

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

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

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

Vindictive PFO finding

Without new evidence presented at a retrial, an added status of persistent felony offender necessarily punishes a defendant for making an appeal. In People v. Brown (3d Dept. 10/28/2010), the Appellate Division, in 2009, had previously reversed the Defendant's conviction for Stalking 2°. At retrial, the Defendant was again found guilty of Stalking 2°.  This time, the Defendant was adjudicated as a persistent felony offender and sentenced to 15-years-to-life.

The Defendant argued—and the Appellate Division “reluctantly” agreed—that because no new evidence was presented during the second trial that warranted a PFO finding, the defendant was “punished” for taking an appeal. Since no new evidence was presented at the second trial, imposing a life sentence would essentially punish the defendant for making an appeal. As a result, the court vacated the sentence and remanded for resentencing.

The People noted, unsuccessfully, that they had filed a PFO application before the first conviction.  However, for some reason, they withdrew the application.  They explained in the second appeal that they did so because of concerns that the PFO statute was unconstitutional.  The Appellate Division still found vindictiveness.  "The District Attorney does not represent that he was unable to pursue persistent felony offender status for defendant at the first trial or that information critical to that effort only became available after the application was withdrawn and sentence was first imposed. Under the circumstances, the disparity between the two sentences only serves to reinforce the perception that defendant is, in fact, being punished for prosecuting a successful appeal of his first conviction."  (RB/LC)

 

 

 

More on jury notes

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

AD1: Reading a jury note verbatim is not required

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

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

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

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

Court's denigration of defense counsel leads to reversal

A Bronx conviction for Attempted Robbery 2° was reversed for a new trial before a different judge as remarks, made by the trial court, deprived the defendant of a fair trial.

The First Department, in People v. Leggett (1st Dept. 9/14/2010), recognized that impartiality demands a trial judge to “scrupulously avoid denigrating counsel and thereby undermining a party’s right to his or her effective assistance.” The trial court, frustrated by defense counsel's "enthusiasm," repeatedly lambasted him, insulting his character and his case in front of the jury. The Appellate Division characterized the judge's comments as “egregious.” First, the trial court described defense counsel’s objection as "silly." And, in a particularly emotional portion of the record appearing in the opinion, the trial judge accused counsel of "turning this [trial] into a comedy." Second, he demanded that the attorney "behave like a professional and not a clown." The Appellate Division emphasized that this comment was particularly troublesome.

While the First Department recognized that the defense counsel’s behavior might have been testing the boundaries of decency and "zealous advocacy" in the courtroom—as well as the trial court's patience—it emphasized that when this type of behavior occurs, the court should not respond in the sight of the jury. Under such circumstances, a sidebar or moment out of the jury’s presence is desirable "as the court had other alternatives to launching into an attack upon defense counsel in front of the jury."  And, if the court makes an "injudicious remark," a curative instruction should be issued. (RB/LC)

Rereading Jury Instructions Insufficient to Relieve Confusion

In People v. Abdul (2d Dept. 8/10/2010), the Second Department granted a new trial, because, the trial judge did not adequately answer a note from the jury.  Instead, the court reread the original instruction that caused the jury's confusion in the first place.

The defendant was charged with the murder of her daughter.  The People theorized that the defendant either killed the child personally or acting-in-concert with the child's father.  During deliberations, the jury asked a question about acting-in-concert and the time of death:

Can a person be considered 'in concert' by doing nothing to cause the death of a victim except for not doing anything after the death (Such as calling police, hospital, etc.)

The County Court responded by rereading its original instructions on accessory liability, criminal liability based upon a person's failure to to act upon a legally imposed duty, and the substantive law regarding the crime charged. However, while the Second Department conceded that some select circumstances allowing a verbatim restatement exist, merely rereading the instructions that led to the initial original confusion, as in this case, is error. Instead, the County Court should have clarified that "any act or omission by the defendant after the victim had already died could not form the basis of a finding of guilt and that the People bear the burden of providing beyond a reasonable doubt that the victim was alive when the alleged crime was committed."  (RB/LC)

COA upholds judicial adminstrators' authority to create "merged" courts

In People v. Correa (Ct. App. 6/3/2010) (Graffeo, J.) (6-0), the Court of Appeals unanimously upheld judicial administrators' creation of Integrated Domestic Violence (IDV) parts and the Bronx Criminal Division (BCD) by court rule.  The court reversed the First Department, which, in Correa, had declared the BCD rule unconstitutional.  The court affirmed the Second Department's ruling in a companion case, which had upheld the IDV court parts' jurisdiction over unindicted misdemeanors.

The IDV parts of Supreme Court are "devoted to hearing and determination, in a single forum, of cases that are simultaneously pending in the courts if one of them is a domestic violence case in a criminal court and the other is a case in Supreme or Family Court that involves a party or witness in the domestic violence case; or if one is a case in criminal court, Family Court or Supreme Court and the other is a case in any other of these courts having a common party or in which a disposition may affect the interests of a party in the first case" (22 NYCRR part 41).  Basically, the IDV parts operate on a "one-family, one-court" approach to judicial management.

The Bronx Criminal Division of Supreme Court was established to adjudicate felony and certain misdemeanor cases.  The Bronx's Criminal Court judges were appointed Acting Supreme Court Justices.  The combined effect of these decisions made more judges available to hear misdemeanor cases and thus alleviated a backlog of cases in the New York City Criminal Court in that county.  Cases were administratively transferred from Criminal Court to the BCD after arraignment in the lower court. 

The cases heard by the Court of Appeals involved defendants who challenged the jurisdiction of the IDV parts or the BCD to hear their misdemeanor cases.  The court rejected the defendants' contention that court administrators lacked authority to order the respective transfers.  Article VI of the Constitution specifically authorizes the Supreme Court to transfer misdemeanor cases to itself: "As may be provided by law, the supreme court may transfer to itself any action or proceeding originated or pending in another court within the judicial department other than the court of claims upon a finding that such a transfer will promote the administration of justice."  This power is backed up by statute, Judicial Law § 211(1)(b).  It authorizes "the Chief Judge, in consultation with the Administrative Board and with the consent of the Court of Appeals, to 'establish standards and administrative policies for general application to the unified court system throughout the state, including but not limited to standards and administrative policies relating to . . . transfer of judges and causes among the courts.'"

The court rejected the First Department's holding that the rules "merged" courts.  Rather, they merely created new parts in Supreme Court and transferred certain cases to those parts.  "Both actions were permissible under the relevant constitutional and statutory provisions."  The court also found that the Bronx Criminal Court was not, as the First Department characterized it, a "shell of its former self."  That court still carries a heavy caseload of Class B misdemeanors and other crimes; it also hears arraignments in both felony and misdemeanor cases.

The court also found that Supreme Court had jurisdiction to hear the misdemeanor cases, notwithstanding the absence of indictments or SCIs.  First, Supreme Court is a court of general jurisdiction empowered to hear all but a few categories of cases.  Second, the Legislature never limited the scope of Supreme Court's jurisdiction over misdemeanors by, for example, requiring indictment.  Third, various divestiture statutes concern transfers at the request of parties (the People or defendant), not the inherent authority of the court itself.  Thus, to the extent that they require indictment or an SCI to prosecute a case in Supreme Court, they do not apply the court administrators' rules.  (LC)

Wrotten is back!

In People v. Wrotten, the First Department held that Supreme Court lacked statutory authority to permit the complainant to testify, from California, via closed-circuit video.  On the People's appeal, the Court of Appeals reversed, finding that the procedure was authorized by Judicial Law § 2-b(3).  The case was remanded to the First Department to consider factual issues raised by the case.  Today the First Department issued its decision.  The court found that the People had adequately demonstrated the "necessity" for the procedure.  The question was whether there was adequate medical certainty that some bad result, such as serious injury or death, would occur if the complainant was forced to travel to New York.  The court held:

We recognize that the medical risk the complainant would incur by traveling can be "serious" without being more likely than not to come to fruition. As defendant never contended that a "serious" risk was insufficient to warrant a finding that the complainant was unable to travel, we need not and do not decide whether any greater degree of risk is required. Indisputably, moreover, the complainant was a key witness. For these reasons, the use of live, two-way video was necessary to further the "public policy of justly resolving criminal cases while at the same time protecting the well-being of a witness" (14 NY3d at 40).

(LC)

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)