Sunday, May 28, 2017

Under SORA Guidelines, Grooming and Promoting a Relationship are Two Different Concepts

Jill Paperno,
Author of "Representing the Accused: A Practical Guide to Criminal Defense"

During SORA hearings, our clients often face the claim that they established or promoted a relationship for the purpose of victimizing the complainant.  "The Guidelines provide that 20 points should be assessed under risk factor 7 if '[t]he offender's crime (i) was directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization or (ii) arose in the context of a professional or avocational relationship between the offender and the victim and was an abuse of that relationship' (Guidelines, factor 7)." People v Cook, 2017 N.Y. LEXIS 723, *5-6, 2017 NY Slip Op 02468, 3 (N.Y. Mar. 30, 2017)
Prosecutors often try to assess these points even when the defendant and complainant are well known to each other.

In People v. Cook, supra, the Court of Appeals clarified the purpose of Factor 7, and reduced the defendant's sex offender level.  The Court stated,  

In arguing that points should be assessed to defendant under risk factor 7, the People conflate the concepts of grooming a victim and promoting a relationship for purposes of victimization. It is clear that points were not intended to be assessed under that risk factor based on grooming, in and of itself; instead, the assessment of those points should be determined based on the nature of the relationship in which the grooming takes place. If risk factor 7 were interpreted to require the assessment of 20 points for every offender who groomed a victim — in addition to offenders who are strangers or professionals — then the vast majority of offenders against child victims would be assessed those points. Such a blanket assessment of points is inconsistent with the purpose of the Guidelines, namely, to require enhanced community notification where abuse occurs in more distant relationships, which indicate an increased risk of reoffending.
People v Cook, 2017 N.Y. LEXIS 723, *9-10, 2017 NY Slip Op 02468, 4-5 (N.Y. Mar. 30, 2017)

If you are uncertain as to whether points should be assessed for a particular risk factor, a great place to start your research is the New York guidelines, with explanations of the purpose for various factors and when points should or should not be assessed, found here -

Wednesday, May 24, 2017

Litigating Suggestive Identification Procedures

Jill Paperno,
Author of "Representing the Accused: A Practical Guide to Criminal Defense"

Sometimes we don't think about all of the factors that must be considered at a Wade hearing.  Sometimes judges tell us the preliminary conversations between witnesses and the police are not relevant.  In People v Gambale (2017 NY Slip Op 03658 [4th Dept May 5, 2017), the Fourth Department provided support for our need to be expansive in our Wade litigation and our claims that we are entitled to explore these details.

Gambale involved a set of facts we often encounter and may not be sufficiently attuned to.  A robbery occurs at a hotel.  The police believe they know who the perpetrator is, and contact the suspect's parole officer.  In calling, the investigator "inquired about her role as a parole officer for defendant and her familiarity with him. Upon confirming that the parole officer was familiar with defendant, the investigator proceeded to ask her to report to the police department in order to view the video and to determine if she recognized anyone depicted therein. The parole officer identified defendant as the person committing the robbery."

Although we may not always think about the steps that are used to set up an identification procedure, it is extremely important to explore the preliminary conversations that lead a witness to participate.  When we are dealing with law enforcement and parole witnesses, we may forget to consider that they are still witnesses, and that a suggestion that a person with whom they are familiar may be involved in an incident can be suggestive for identification purposes.  The Fourth Department stated,

Here, we agree with defendant that, contrary to the court's determination that "[t]here was no influence or suggestion" by the investigator, the evidence establishes that the investigator suggested to the parole officer prior to her identification that the person depicted committing the robbery on the surveillance video was defendant (cf. Collins, 60 NY2d at 220, affg 84 AD2d 35, 39-40). Instead of requesting the parole officer's assistance in identifying someone from the video without preemptively disclosing the subject of his investigation (emphasis added), the investigator engaged in a conversation "about her being a parole officer for [defendant]." During the conversation, the investigator "asked [the parole officer] if she was familiar with [defendant]" (Emphasis added).The parole officer responded that she had "lots of contact" with defendant, so the investigator proceeded to ask her to "come down and view a video." The investigator subsequently met with the parole officer at the police department and asked her to view the video to determine if she recognized anyone, and the parole officer identified defendant as the person committing the robbery. We conclude that the investigator, by contacting the parole officer and inquiring about her familiarity with defendant prior to the parole officer's viewing of the video, engaged in the type of undue suggestiveness identified in Collins inasmuch as his comments improperly suggested to the parole officer that the person she was about to view was a particular acquaintance of hers, i.e., defendant (see id. at 220) (Emphasis added.). 
On this finding that lawful enforcement engaged in undue suggestiveness, the Appellate Division remitted the case to the trial court (Judge Randall) for a determination as to whether the identification was confirmatory.

Special Assistant Monroe County Public Defender Drew DuBrin is the attorney who successfully represented Mr. Gambale on the appeal.,

The lesson to be learned from this Gambale is that when you are investigating issues of suggestiveness of an identification procedure, it is not enough to look at the photo or lineup for the obvious physical differences (though you of course, must do that).  Counsel must also consider the circumstances of the display of the defendant or his/her photo, the body language, physical movements, the conversation, and the details leading up to the display - phone calls and prior contacts - in supporting an argument for suggestiveness.  Consider preparing your hearing with the following issues to be explored (and these are just a few ideas):

Photos - background, clothing, jewelry, scars, tattoos, hats, size of face, expressions, anything else unusual;
Appearance of the defendant - age, weight, skin tone, features, hair length, hair color, scars, tattoos, particular features
Is there anything unusual about your client's appearance that was omitted from the description?  If so, you have to make a strategic decision as to whether to raise that at the hearing or at trial.
Conversations between the witness and investigators prior to the viewing
Aspects of identification procedures that are now known to be suggestive, but were ignored (such as the lack of a double blind lineup or display)
Details of who was present and what was said, minute by minute, during the display.
Whether other people had communicated with the witness about who the perpetrator was prior to the display, or used their cell phones or other social media to point out the suspect to the witness

It is helpful to have an investigator speak to witnesses prior to the hearing to determine what was said by the police during the procedure.  Sometimes witnesses, without having yet been prepped, will unwittingly acknowledge that the officer's words were suggestive.  If so, have your investigator ready to testify. 

Monday, May 22, 2017

Limits on the Prosecutor's Use of PowerPoint Presentations In Summations


Jill Paperno,
Author of "Representing the Accused: A Practical Guide to Criminal Defense"

April's Court of Appeals decisions included two cases addressing the use by prosecutors of PowerPoint presentations in their summations.  PowerPoint is being used more and more frequently, and it is important to consider what the Court has deemed permissible, and what you should do (object, ask for limiting instruction at the time and an additional instruction during the final instructions?) during the trial if the Court does permit it.  

In People v. Anderson, the Court noted:

At bottom, a visual demonstration during summation is evaluated in the same manner as an oral statement. If an attorney can point to an exhibit in the courtroom and verbally make an argument, that exhibit and argument may also be displayed to the jury, so long as there is a clear delineation between argument and evidence, either on the face of the visual demonstration, in counsel's argument, or in the court's admonitions. We reject defendant's position that trial exhibits in a PowerPoint presentation may only be displayed to the jury in unaltered, pristine form, and that any written comment or argument superimposed on the slides is improper. Rather, PowerPoint slides may properly be used in summation where, as here, the added captions or markings are consistent with the trial evidence and the fair inferences to be drawn from that evidence. When the superimposed text is clearly not part of the trial exhibits, and thus could not confuse the jury about what is an exhibit and what is argument or commentary, the added text is not objectionable. The slides, in contrast to the exhibits, are not evidence. The court properly instructed the jury that what the lawyers say during summations is not evidence, and that in finding the facts, the jury must consider only the evidence. In this case, as was appropriate, the jury was told that the physical exhibits admitted into evidence would be made available to them, while the slides were not supplied to the jury during deliberations.

So you want to consider, if objecting, whether there is a "clear delineation between argument and evidence", whether the added captions or markings are consistent with trial evidence and the fair inferences to be drawn from the evidence", and whether the superimposed text is obviously not made to look like part of the exhibit (thus not misleading).  

Make sure the PowerPoint is preserved in the record for appeal - ask that the disk be marked and preserved.  And consider using them yourselves.  In this case, the Court did not find it reversible error that there were text boxes around the defendant's face in one slide, with comments added.  The Court stated, "In our view, the added text accurately tracked the witnesses's testimony and the fair inferences to be drawn from the evidence, and the placement of the text boxes around defendant's face was "not simply an appeal to the jury's emotions" (Santiago, 22 NY3d at 751)...Nonetheless, even accepting defendant's position that this slide was objectionable, the display of this slide alone did not deprive defendant of a fair trial. Instead, as in Santiago, "the objection to the PowerPoint presentation that defendant now raises is not so 'clear-cut' or 'dispositive' an argument that its omission amounted to ineffective assistance of counsel" (22 NY3d at 751)."

Justice Rivera recognized the powerful impact of visual aids, as borne out by research in her dissent in Anderson:

Every person who relies on visual aids to communicate a message is likely cognizant of what the science bears out: the medium of delivery has the potential to powerfully influence the way the message is heard and retained (see Lucille A. Jewell, Through a Glass Darkly: Using Brain Science and Visual Rhetoric to Gain a Professional Perspective on Visual Advocacy, 19 S Cal Interdisc LJ 237, 293 [2010]). Research shows that pictures are typically remembered better than words (see Mary Susan Weldon & Henry L. Roediger, III, Altering Retrieval Demands Reverses the Picture Superiority Effect, 15 Memory & Cognition 269, 269 [1987]). Indeed, "with visual information, people believe what they see and will not step back and critically examine the conclusions they reach, unless they are explicitly motivated to do so. Thus, the alacrity by which we process and make decisions based on visual information conflicts with a bedrock principle of our legal system — that reasoned deliberation is necessary for a fair justice system" (Jewell, supra, at 293). This can make the use of images at trial particularly problematic when combined with language, as "annotating images with text . . . exacerbates the interpretive distortion of images" (Elizabeth G. Porter, Taking Images Seriously, 114 Colum L Rev 1687, 1755 [2014]). Particularly troubling in the legal context are recent studies showing "that photos that relate to, but do not provide any evidence for, a claim . . . can nudge people towards believing that the related claims are true, whether they are true or not" (Eryn Newman & Neal Feigenson, The Truthiness of Visual Evidence, 24 The Jury Expert, 5:1 [Nov 2013]; see also Eryn Newman et al., Nonprobative photographs (or words) inflate truthiness, 19 Psychonomic Bulletin & R 969, 973 [2012] [studies have suggested that "the mere presence of non-probative information such as photos might rapidly inflate the perceived truth of many types of true and false claims" and that this effect can last for up to two days])[FN3]. Furthermore, "images are much more immediately and tightly linked with emotion than is text," so "while images offer a wealth of creative and effective communication tools for lawyers, the very elements that make [*7]them persuasive pose dangers to the integrity of the decisionmaking process" (Porter, supra, at 1755-1756).[FN4]
I have previously addressed how visual imagery can be particularly impactful in summation,

"when 'any argument that drones on for 5 or 10 minutes on any one point, regardless of how effective its content is, will lose the jury' (Thomas A. Mauet, Trial Techniques 394 [8th ed 2010]). Visual aids are a welcome relief since '[b]y the end of the trial, jurors are looking for new and fresh ways of receiving evidence and arguments' (id.). The use of technology at the end of closing argument may be particularly powerful. As one commentator has noted, '[t]he right to the final word has a psychological impact that makes it a forensic prize' (Siegel, New York Practice § 397 at 692 [5th ed 2011])."

(People v Santiago, 22 NY3d 740, 754 [2014] [Rivera, J., dissenting]). The last side to comment and deploy a visual presentation of its view of the case therefore gains an edge in persuading the jury as it commences deliberations. In the end, if visual tools did not enhance the rhetorical impact of the spoken word or persuade the viewer of the logic of an advocate's reasoning, the prosecutor would not take the time to mark up photos of exhibits, embed those photos with text and images suggesting defendant's guilt, and present those images in a PowerPoint slide show, as was done here.

Knowing that such a powerful and potentially persuasive tool exists, shouldn't we all start considering not just objecting, but adding PowerPoint to our toolboxes? 

Friday, October 14, 2016


By Mark D. Hosken, Supervisory Assistant Federal Public Defender

The United States Sentencing Guidelines (USSG) include enhanced punishment for those individuals convicted of a child pornography offense involving distribution.  An increase of five levels is applied if the offense involved distribution of the images for receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain. [USSG §2G2.2(b)(3)(B).]
Previous decisions held the expectation of receiving something of value must be contextual.  One might use a file sharing program that enabled free access to files.  Those files were free to view.  There was no sharing for valuable consideration as required under §2G2.2(b)(3)(B).  That might be considered simple distribution.  Without proof that a defendant and another specifically agree to share files on a return promise to share files, there could be no transaction for valuable consideration.  See, United States v. Spriggs, 666 F.3d 1284 (11th Cir. 2012). See also, United States v. Reingold, 731 F.3d 204, 228-230 (2d. Cir 2013), (file sharing can constitute simple distribution under §2G2.2(b)(3)(F) for a +2 level enhancement.)
Recently, the Second Circuit Court of Appeals held that the +5 level enhancement applies when the government advances specific, individualized evidence that the defendant provided access to his collection of child pornography to another person in expectation that the other would provide similar access to other child pornography files. 
In United States v. Bennett, (Docket No.15-0024-cr, decided October 6, 2016), the panel rejected the defendant’s argument that his Guidelines should be increased only by the +2 level enhancement [§2G2.2(b)(3)(F)] because he did nothing “more than simple file sharing.” The court focused on additional facts that supported the application of the enhancement.  The defendant belonged to a closed file sharing network, GigaTribe.  The forensic examination of the defendant’s computer established he had shared his password 221 times with 174 different users on GigaTribe.  The court cited numerous examples of those exchanges wherein the defendant would offer to trade his password for another’s password. This trading permitted each user to access the other’s otherwise inaccessible image files.  This was sufficient for the court to conclude this exchange of passwords after a brief discussion of the user’s interests warranted the +5 level enhancement as it was “distribution for the receipt, expectation of receipt, of a thing of value.”
The Second Circuit rejected a bright line rule that would require all GigaTribe users receive a +5 level enhancement.  Rather, the panel discussed today’s technology.  Some file-sharing programs permit the user to restrict access to their files through password protection.  Others that maintain a password may make their password generally available as a gift rather than as consideration as part of an exchange.  Though many defendants may exchange files on a file-sharing network in hopes of receiving other files in return that does not establish it occurs in every case.  Thus, the appellate court requires the sentencing judge to determine whether the defendant expected to receive access to other individuals’ child pornography files in exchange for his own files.  Here, that was established by Bennett’s conduct in offering his password to other users in exchange for their passwords so he could access other images of child pornography.
Traditional file sharing via peer-to-peer networks is usually considered a distribution other than for something of value.  This frequently results in the application of a +2 level enhancement to the defendant’s sentencing guideline calculations per §2G2.2(b)(3)(F).  Now, the +5 level enhancement under §2G2.2(b)(3)(B) will be applied in those prosecutions in which evidence establishes the defendant provided access to his collection of child pornography to another user with the expectation that the user would provide similar access to other child pornography files. 

Wednesday, June 29, 2016

People v Smith, from the Court of Appeals yesterday

by Jill Paperno, First Assistant Public Defender and author of Representing the Accused: A Practical Guide to Criminal Defense
Among some of yesterday’s disappointing Court of Appeals decisions there is one that can be useful to us – People v. Smith, et. al.  The Court recognized that police officers may be cross-examined about their tortious conduct in other situations, as described below.  Sadly, although the Court recognized error on the part of the trial courts in the three joined cases, the Court found errors in two of the three cases were harmless.
In the series of cases decided with Smith, the trial courts had precluded any cross-examination into allegations of a law enforcement officer’s prior misconduct made in an unrelated federal lawsuit.  In other words, the courts barred questioning of officers who were facing Section 1983 or other lawsuits based on allegations that they had violated defendants’ civil rights in other cases through excessive use of force and other misconduct.  Happily (and rightly), the Court of Appeals recognized that police officers should not be subjected to special treatment.  As the Court said in citing past cases, “These cases stand for the unremarkable proposition that law enforcement witnesses should be treated in the same manner as any other prosecution witness for purposes of cross-examination.”  
If you have tried to cross-examine police on allegations they face in civil rights cases, you may have found that a trial court prevented you from crossing if the allegations were merely in a complaint, or if they didn’t allege a type of misconduct related to the misconduct you alleged in your case.  But the Court recognized that these limitations are wrong.
The Court reviewed the importance of cross-exam and impeachment, and noted “It is elementary that ‘(i)impeachment is a particular form of cross-examination whose purpose is, in part, to discredit the witness and to persuade the fact finder that the witness is not being truthful.  One traditional method of accomplishing these ends is to demonstrate through questioning that the witness has been guilty of prior immoral, vicious or criminal conduct bearing on credibility (cite omitted).”
The Court stated, “Our recognition of the relevance of prior bad acts that have been alleged in court filings, but not proven at trial, is consistent with our precedent; we have previously decided that there is no prohibition against cross-examining a witness about bad acts that have never been formally proven at a trial (cite omitted).  Likewise, a police witness’s prior bad act that similarly has not been proven in a criminal prosecution or other court proceeding also can be proper fodder for cross-examination.  Nor do allegations of police misconduct lose their relevance to a police witness’s credibility simply because the alleged bad acts are not regarded in all cases as criminal or immoral…”
The Court continued by noting that if a lawsuit does not result in an adverse finding against an officer, defendants should not be permitted to ask a witness if s/he has been sued, if the case was settled if there was no admission of wrongdoing, or if criminal charges were dismissed.  “However, subject to the trial court’s discretion, defendants should be permitted to ask questions abased on the specific allegations of the lawsuit if the allegations are relevant to the credibility of the witness.”
The Court provides a framework for analysis:  1.  Is there a good faith basis for inquiring (such as the lawsuit); 2.  Specific allegations relevant to the credibility of the officer must be identified; and 3.  the trial judge must exercise discretion in assessing whether inquiry would confuse or mislead the jury or create a substantial risk of undue prejudice to the parties.”  The Court notes that a federal lawsuit alleging tortious conduct by police testifying as prosecution witnesses in the state case provides the good faith basis for raising the issue.
So when you are considering cross-examination of a police officer, don’t forget to check PACER and County Clerk records.  Check the internet.  Be ready with this case when the prosecutor objects or the Court says allegations in a civil suit are not enough.  The trial court may still exercise discretion, but the discretion is not unlimited.

Monday, June 6, 2016

Another Way to Avoid a Mandatory Minimum Without Joining Team America

By Mark D. Hosken, Supervisory AFPD

            Congress enacted terms of imprisonment that prohibit federal court judges from imposing a sentence below the mandatory minimum required by statute. The only exception routinely applied is for those defendants who provide substantial assistance to the government.  The lawmakers limited this exception to prosecutorial applications.  Otherwise, the sentencing court must impose at least the minimum term mandated.

            This exception is applied in those prosecutions where the defendant enters into an agreement with the AUSA to provide substantial assistance.  Assuming that cooperation is provided and found satisfactory by the prosecutor, the government will file an application asking (and permitting) the sentencing court to impose a term less than that minimum mandated term.  Without such motion the court may not avoid the minimum term notwithstanding the remaining sentencing factors unique to the defendant.  Not surprisingly, this prosecutorial empowerment encourages many defendants to join Team America.

            Recently, a district court judge in the WDNY applied another exception that did not require the defendant to cooperate.

            The defendant was in primary state custody serving a state term of 30 months resulting from his guilty plea to Rape 3rd.  The federal government determined that further punishment was warranted as the defendant videotaped the underlying sex act with the minor.  The defendant was indicted and brought to federal court on a writ.  The defendant decided to plead guilty to the federal offense (Production of Child Pornography). That conviction carried a mandated minimum term of at least 15 years up to a maximum term of 30 years. Though the federal sentencing guidelines recommended a term between 151 months and 188 months, the mandatory minimum trumped the guidelines increasing that range from 180 to 188 months. Absent a government application for a reduction based on cooperation, the defendant could not receive less than 15 years.

            In the instant case, the defendant had served approximately 22 months on his state sentence before he appeared before the federal sentencing judge.  Though the sentencing judge would impose a concurrent sentence, the federal law does not permit a relation back to the beginning of the 22 month state term.  A federal concurrent sentence looks forward from the date of the imposition of that sentence.  The defendant would not receive concurrent credit towards his federal sentence for those 22 months already served in primary state custody.  The goal was to provide authority to the sentencing judge that would permit the piercing of the mandatory minimum term.

            Relevant conduct is frequently relied upon in federal sentencing practice. It is defined in the United States Sentencing Guidelines as other conduct not necessarily prosecuted but part of the criminal acts or omissions that occurred during the commission of the offense of federal criminal conviction (USSG § 1B1.3).  Here, the conduct supporting the Rape 3rd conviction was integral to the Production of Child Pornography. Thus, it was properly considered relevant conduct.

            The federal sentencing guidelines include a provision which directs the sentencing court to reduce the federal prison term found applicable by the amount of prison time served on the state crime determined to be relevant conduct [USSG § 5G1.3 (b)].  For example, if the appropriate federal term was determined to be 188 months, the court must reduce by 22 months and impose a sentence of 166 months. The question arose whether that credit found in the federal sentencing guidelines must be equally applied to the application of a mandatory minimum sentence.

            United States v. Rivers, 329 F.3d 119 (2d Cir. 2003), provides direct authority for that application. The district court judge determined that 64 months was the appropriate term for a federal drug offense that carried a 60 month mandatory minimum term. The court ruled the federal term should be served concurrently with the state sentence being served.  The judge reduced the 64 month term by the 18 months already served in state custody. The resulting federal sentence imposed was 46 months.  The Second Circuit affirmed and rejected the government's claim that the sentencing court was not empowered to sentence below the mandatory minimum.  The panel held, "[s]o long as the total period of incarceration, after the adjustment, is equal or greater than the statutory minimum, the statutory dictate has been observed and its purpose accomplished."  Id. at 122.  Whether the calculation was called a credit under the federal sentencing guidelines or an adjustment, “this linguistic variance is a distinction without a difference.” Id. at 122.

            In the instant case, the federal court judge decided that 188 months was the appropriate sentence.  That term was above the minimum sentence mandated for the conviction of Production of Child Pornography.  Based on the application of the Rivers' principle, the judge applied a 22 month adjustment to that term based on the previously served state time. The resulting sentence imposed was 166 months to be served concurrently with the unexpired state term.  The sentencing court was authorized and required to adjust the term to reflect the state term served.  Here, the mandatory minimum term was properly adjusted without the defendant being required to join Team America.