Monday, July 21, 2014

Custodial Interviews By Child Protective Workers and Miranda

    A common practice after the arrest after an arrest for child sex crimes is for a Child Protective Services (CPS) Investigator to go the jail to interview the suspect regarding a CPS investigation of the same incident underlying the suspect’s arrest. In many cases the  CPS Investigator does not read the suspect Miranda warnings or obtain a Miranda waiver before conducting these custodial interrogations. The ostensible rationale is that the CPS Investigators are not law enforcement officers and they are not conducting these custodial interrogations with regard to the criminal charges, but rather with respect to a possible civil proceeding arising out of the same alleged conduct. And after incriminating statements are obtained, the CPS Investigator shares them with police and prosecutor, as required by Social Services Law §§411, 413, 424.
    Regardless of whether the police invited this type of interrogation, the statements thereby obtained should be inadmissible under Miranda.
    First, there can be no dispute that the incarcerated suspect was in custody. The focus of the suppression court will be whether the questioning constitutes interrogation by a “public servant engaged in law enforcement activity or by a person then acting under [their] direction or in cooperation with [them]” (CPL § 60.45[2][b]) under Miranda.
    Typically, these CPS workers are members of a county-wide, multidisciplinary team comprised of members of the District Attorney's office, police and social service agencies and cooperate with the District Attorney’s office by providing information when requested.
    It is irrelevant that the police and District Attorney might not have expressly requested that the CPS Investigator interview defendant, since such a request is unnecessary in light of the statutory provisions both that the interview be performed and that the CPS caseworkers cooperate with the District Attorney's office regarding the case.
    As the Appellate Division, Third Department, held in People v Wilhelm (34 AD3d 40 [3d Dept 2006]):
    we are satisfied that the CPS caseworkers involved here had a "cooperative working arrangement" with and were acting as agents of the police and prosecutor in interviewing defendant and relaying her incriminating statements (People v Greene, 306 AD2d 639, 641).   Moreover, contrary to the People's assertion that the CPS investigation  remained separate from that performed by the District Attorney's office,"the subject of the interrogation and the subject of the criminal charges [were] so inextricably interwoven in terms of both their temporal proximity and factual interrelationship as to render unavoidable the conclusion that any interrogation concerning the [allegations in the hotline report] would almost inevitably involve some potentially incriminating discussion of the facts of the crime itself" (People v Townes, 41 NY2d 97, 104 [1976]). It is therefore immaterial that the CPS caseworkers considered their investigation separate from that of the police and that they did not characterize the police as being in charge of the multidisciplinary team....  As we have stated: “The regulatory mandate that a CPS caseworker conduct face-to-face interviews with subjects of child abuse reports (18 NYCRR 432.2[b][3][ii][a] ) cannot overcome a subject's constitutional right if the CPS caseworker is an agent for the police at the time of the interview. That mandate can be complied with either by arranging an interview with the subject and counsel or merely completing the information gathering by the CPS caseworker without the ability to use the statement in any criminal proceeding” (People v Greene, supra at 641).
(People v Wilhelm, 34 AD3d 40, 45–50 [3d Dept 2006].)
    Further, two holdings of the United States Supreme Court on the need for Miranda warnings for custodial interrogations conducted by government officials who are not law enforcement officers are both instructive and controlling.
    In Mathis v United States (391 US 1 [1968]), the Court considered the applicability of Miranda to questioning of Mathis, a state prisoner, by an IRS agent regarding discrepancies in two of his federal tax returns, during which Mathis made incriminating statements that were later introduced at his criminal trial on charges of tax fraud. The Government argued  that Miranda did not apply since the questioning had been part of a routine tax investigation, civil in nature, unrelated to the reason Mathis was in custody(Id. at 2). The Supreme Court rejected this fact as dispositive, noting that “tax investigations frequently lead to criminal prosecutions, just as the one here did,” and that any tax investigation could lead to a criminal prosecution (Mathis, 391 US at 4). In dismissing the Government's argument that Miranda did not apply because the questions asked of Mathis were part of a routine civil tax investigation, the Supreme Court noted that "[t]hese differences are too minor and shadowy to justify a departure from the well-considered conclusions of Miranda with reference to warnings to be given to a person held in custody."  (Mathis, 391 US at 4).
    In Estelle v Smith (451 US 454 [1981]) the United States Supreme Court considered when the questioning by a person who is not a law enforcement officer is subject to the requirements of Miranda. The issue in Estelle was whether the statements  made to a psychiatrist at a court ordered competence examination, in which Miranda warnings had not been administered, could be used at the penalty phase of the defendant’s court proceedings. The Supreme Court, in holding that the defendant’s Miranda and Fifth Amendment rights had been violated, explained that
    When [the doctor] went beyond simply reporting to the court on the issue of competence and testified for the prosecution at the penalty phase on the crucial issue of respondent's future dangerousness, his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a postarrest custodial setting. During the psychiatric evaluation, respondent assuredly was “faced with a phase of the adversary system” and was “not in the presence of [a] perso[n] acting solely in his interest.” (citation omitted). Yet he was given no indication that the compulsory examination would be used to gather evidence necessary to decide whether, if convicted, he should be sentenced to death. He was not informed that, accordingly, he had a constitutional right not to answer the questions put to him.
Estelle v Smith, 451 US 454, 467 (1981).
    Thus, statements obtained by  CPS workers during custodial questioning of suspects, without Miranda warnings and waivers should be inadmissible as violative of Miranda.

Tuesday, July 15, 2014

New York State’s Affirmative Defenses: Legitimate Tools for the Defense or Traps for the Unwary?

Last month, one of our clients had his murder conviction reversed by the Appellate Division, Fourth Department, after the trial court belatedly charged the affirmative defense of renunciation over objection (People v Brewer, 2014 WL 2782143, __ AD3d __ [4th Dept June 20, 2014]).  The court recognized the general rule that a court may not charge an affirmative defense over a defendant’s objection, and acknowledged that the Third Department had adopted a rule that the Court can never charge an affirmative defense without the defendant’s consent (see People v Ciborowski, 302 AD2d 620, 622 [3rd Dept 2003]).  Nonetheless, the Brewer Court declined to adopt such a bright line rule and ruled in dicta that there may be “limited circumstances” when an affirmative defense is the only viable defense and can thus be charged over objection.
This case provides an opportunity to examine New York’s affirmative defenses and also provides an interesting “control” regarding the efficacy of such defenses. 
Brewer was charged with murder in the second degree as both a principal and an accomplice.  In his written statement, Brewer, who was only eighteen years old at the time, admitted that he agreed to kill the victim for $10,000 and was driven from Elmira to Rochester for that purpose.  When it came time to actually pull the trigger however, Brewer stated that the victim locked eyes with him and told him not to do it.  Brewer froze, unable to shoot.  In a rage, Brewer’s co-defendant (who had agreed to hire Brewer) grabbed the gun from Brewer, chased the victim down and shot and killed him.
Brewer went to trial twice on the prosecutor’s theory that he was an accomplice to murder.  At the first trial, renunciation was not charged as an affirmative defense.  The jury deadlocked 10 to 2 for acquittal on the murder count.  At the second trial, after two days of deliberation, the jury sent back a note that they were deadlocked but asked if there were anything in the law about “changing your mind at the last minute.”  The trial court charged them with the renunciation defense, over objection, and the jury convicted Brewer within two hours.
This "experiment” suggests what trial attorneys have always suspected: that if there is any way to advance your theory of defense without an affirmative defense, do it.  New York’s affirmative defenses do two things very well.  First, they act as burden-shifting machines, making the prosecutor’s job much less onerous.  Second, they impose almost unattainable standards on the defendant, in an apparent effort to limit the application of the defense to “deserving” defendants and close the door to the rest of us.
Burden Shift
The difference between an affirmative defense and an ordinary defense is the burden of proof.  An ordinary defense, such as justification or alibi, must be disproved beyond a reasonable doubt by the prosecutor, and the jury must be specifically instructed on this.  In contrast, an affirmative defense imposes the burden of proof (usually by a preponderance of the evidence) on the defendant.  Recognizing this burden, and the unfairness of foisting it on an unwilling defendant, the Court of Appeals has repeatedly reversed cases where an affirmative defense was imposed on an unwilling defendant (see e.g., People v Bradley, 88 NY2d 901, 902 [1996] [extreme emotional disturbance]; People v DeGina, 72 NY2d 768, 776-777 [1988] [entrapment]).
New York Affirmative Defenses
New York Penal Law Article 40 groups the general affirmative defenses that apply to all criminal offenses.
1.       Duress (PL § 40.00) (Defendant must be coerced by the use or threatened “imminent” use of force which a person “of reasonable firmness” would be unable to resist.  This defense is not available if a person intentionally or recklessly placed himself in the position where he or she may be subjected to duress.)
2.         Entrapment (PL § 40.50) (Defendant was actively “induced or encouraged” to engage in crime by a public servant or agent attempting to obtain evidence against him.  Methods used by the public servant or agent must be such to create substantial risk that a person “not otherwise disposed to commit the offense” would commit it.  This defense opens the door to “predisposition” evidence.)
3.     Renunciation (PL § 40.10) (Under circumstances showing “voluntary and complete” renunciation, defendant withdrew from participation and made a “substantial effort” to prevent the crime from happening.  Renunciation is not “voluntary or complete” if it is motivated in whole or in part by a fear of getting caught or a decision to postpone the crime to a later date.)
4.        Mental Disease or Defect (PL § 40.15) (At the time of the crime, as a result of mental disease or defect, defendant lacked substantial capacity to know or appreciate either the nature and consequences of such conduct or that such conduct was wrong. This defense, if successfully asserted, triggers psychiatric examinations to determine whether defendant is mentally ill or dangerously mentally ill pursuant to CPL 330.20.)
To these defenses are added offense-specific affirmative defenses, such as extreme emotional disturbance to intentional murder in the second degree (PL § 125.25 [1] [a]) and “not having any reasonable ground to know a co-defendant was armed with a weapon” to felony murder (PL 125.25 [3][c]).
Conclusion
It is a rare defendant who would be able to surmount the burden of proof necessary to show that he or she is “deserving” of an affirmative defense (as is evident by merely listing their elements).  Indeed, it seems that if the elements of these affirmative defenses were met, the defendant would not face prosecution at all.  Or even if prosecuted, the defendant would not need the actual instructions of these affirmative defenses to be charged to the jury; the jury would likely simply refuse to convict on either a generalized “lack of intent” theory or under its traditional mercy-dispensing authority.
Of course, there are times when you must assert an affirmative defense on behalf of your client.  (Note: Because affirmative defenses impose a burden of proof on a defendant, it is your client, not you as the attorney, who ultimately decides whether to assert the defense, as opposed to the decision to submit a lesser included offense which resides with the attorney [see People v Colville, 20 NY3d 20, 32 (2012)]). 

If your client decides he or she wants to assert an affirmative defense, you should be prepared to accentuate the facts of your case instead of the language of the affirmative defense–which, as was demonstrated in Brewer, will only lead the jury to a conviction where they would otherwise not be so disposed.

Tuesday, July 1, 2014

The People’s failure to disclose civil allegations against a police witness may still constitute a Brady violation under circumstances different than those in People v. Garrett.

by Danielle Wild, 2015 J.D. Candidate at Syracuse University College of Law and Intern at Easton Thompson Kasperek Shiffrin LLP

Yesterday, the New York Court of Appeals decided People v. Garrett, holding the People did not commit a Brady violation when they failed to disclose that a federal civil action had been brought against one of their police witnesses.
Mark Garrett was convicted after a trial by jury of two counts of murder in the second degree.  In addition to circumstantial evidence connecting Garrett to the crime, the People presented evidence of his confession.  Garrett maintained that his confession was false and coerced by the interrogating detectives.
In a CPL 440.10 motion to vacate his judgment of conviction, Garrett claimed the People committed a Brady violation by failing to disclose to him the federal civil rights action that had been filed against one of the interrogating detectives.  The complaint alleged that the detective had coerced a confession in an unrelated arson case.  The Court of Appeals disagreed.
In an opinion written by Judge Abdus-Salaam, the majority determined that, although the civil allegations were favorable to Garrett, given his own allegations that the detective coerced his confession, Garrett had not met his burden of proving the remaining elements of a Brady claim—i.e. that the People suppressed the information or that he was prejudiced by their non-disclosure.
First, the majority held the People had not suppressed the information because they had neither actual nor constructive knowledge of the civil allegations against the detective until after their Brady obligations had ceased.
Although the civil complaint was filed and answered more than a month before Garrett’s arrest, the files related to the civil case were sealed until after Garrett’s trial and sentencing had concluded.  Given that, the majority concluded that the People adequately proved they had no knowledge of the allegations until after sentencing, at which time they were not obligated under Brady to disclose the information.
Yesterday’s decision therefore does not foreclose a defendant from arguing the People have an obligation to disclose civil allegations against a police witness if those allegations were unsealed prior to the defendant’s trial or sentencing.
(The majority did, however, explicitly reject Garrett’s argument that a prosecutor has a duty to ask his police witnesses whether any allegations were pending and a duty to conduct a cursory search through court dockets for any such allegations.)
When considering whether the People were imputed with constructive knowledge, the majority addressed several case-specific factors before holding they were not.
First, the civil allegations against the detective did not arise out of the detective’s investigation of Garrett’s case but instead arose out of the detective’s alleged misconduct in an unrelated case.  The majority made clear the People may be imputed with knowledge of any “bad acts” engaged in by a police officer during the course of his investigation of a defendant’s case. 
Second, according to the majority, the allegations were only collateral to Garrett’s case, at best, to the extent they may have provided him with impeachment material. 
Third, the majority emphasized that Garrett only argued that the detective’s knowledge of the allegations against him were attributable to the prosecutor; he never alleged that imputation derived from the knowledge of any other police officer or member of the prosecution team.  This suggests that the holding may have been different if Garrett offered proof showing that a government agent other than the detective against whom the allegations were filed knew of the allegations.
Notwithstanding the suppression prong, the majority held that the undisclosed evidence did not meet the materiality standard required under Brady because Garrett previously tried and failed to admit similar impeachment evidence against the detective at both the suppression hearing and at trial—i.e. evidence that another interrogating detective had participated in case involving a false confession.  Both the suppression court and the trial court sustained objections to the line of questioning based on relevance grounds.  It seemed unlikely to the majority that Garrett would have had greater success with admitting the evidence at issue.
Again, this leaves open the possibility that a defendant may be successful in establishing prejudice and materiality if the suppression court or the trial court, in its discretion, allows similar impeachment evidence to be admitted.
Moreover, the majority admitted that the Court has never squarely addressed whether inadmissible evidence may be considered material under Brady if it could lead to admissible evidence, recognizing that some federal courts have held that it may.  Since Garrett failed to show what, if any, admissible evidence disclosure of the allegations against the detective would have led to, the majority again avoided addressing the issue.
Admissibility aside, the majority noted that the impeachment value of the undisclosed civil allegations was minimal at best because another interrogating detective gave corroborating testimony as to the voluntariness of and circumstances surrounding Garrett’s confession.
In the absence of such corroborating testimony, a defendant may be able to demonstrate the requisite prejudice and materiality to satisfy the third prong of a Brady claim.
Chief Judge Lippman wrote a concurring opinion, joined by Judges Smith and Rivera, agreeing with the majority that the civil allegations against the detective were not material under Brady.  However, they disagreed with the majority’s suppression analysis and would have held that the detective’s knowledge of the allegations pending against him should be imputed to the People because, as a member of the prosecution team, he had an independent obligation to disclose impeachment evidence.  Further, they believed that the majority erred in considering the materiality of the evidence in their suppression analysis.
Judge Smith also wrote a separate concurring opinion, joined by Judge Pigott, questioning whether the Court was even able to consider the materiality prong of the Brady claim given that the County Court did not consider it when it denied Garrett’s CPL 440.10 motion.

Friday, June 27, 2014

Ipads and apps in your legal practice

by
Jill Paperno, author of
Representing the Accused: A Practical Guide to Criminal Defense

As the Supreme Court recognized this week in Riley v. California, 2014 WL 2864483, technology is an inescapable component of our daily lives.  In Riley, the Court answered the question of whether warrants are required before police can search cell phones – and the answer was yes (with exceptions for exigent circumstances).  Justice Roberts, who wrote for the majority, stated, “These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”


So given the ubiquitous (my grandfather always used that word and this is the first time I ever have!) nature of cell phones and mobile technology, we should use the technology not just to check on the misbehavior of our children or the reviews a restaurant received, but to enhance our practice.  I was asked about my use of cell phone technology by Niki Black, author and blogger.  Her interview with me in “Above the Law”, her blog, is found here:  http://abovethelaw.com/2014/06/todays-tech-a-public-defender-and-her-ipad/


Of course, as the article indicates, I have a love affair with my Ipad.  But different strokes for different folks – some prefer other types of mobile devices.  


As for my favorite work related uses and apps, I’ll list a few:

  • The CPL, a $6 app, is searchable, and always handy.
  • The PL, another $6 app, a constant resource.
  • The CPLR – for those pesky subpoena rules
  • Training materials relating to frequently arising issues and topics, such as subpoenas
  • The mobile access to Westlaw
  • Medical abbreviations app
  • Translator
  • Calculator apps
  • Pages – a word processing app that can be used to prepare or edit documents, store them and have them accessible whenever necessary
  • Timeline 3D – I’m looking forward to using it for a presentation or summation some day
  • Ibooks – Great for downloading books from the web, such as the OCA Search and Seizure manual, the Sex Offender Registration Act guidelines for classification, the Parole Manual and much more.  (Check out “Has a Child Been Molested” by Patrick Clancy and Lee Coleman in its free downloadable form, as well as other resources from their website)
  • Unit converter (so you never have to remember the grams/ounces thing)
  • Photography for quick screen grabs of facebook and other elusive internet things, like articles that don’t let you simply print and copy
  • Document organizing apps (I use Goodreader) – There are document organizing apps that enable you to collect and organize documents into files.  This is one of my most frequently used app.  I have downloaded and classified all of the OCA jury instructions, sentencing charts, phone number lists (probation, PD office, DA office, courts, etc.), the Rules of Professional Conduct, etc.


As our courts and most offices provide wifi, I went the cheap route and got the wifi version which works for me in most locations.  I also find myself frequently looking at maps and street level locations (but beware, sometimes the addresses are wrong) when new information comes up at a hearing.

Friday, May 9, 2014

Change of Circumstances Is Not a Prequisite for an Applicaition to Reconsider Bail

by

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

There have been a number of recent occasions on which prosecutors have argued during bail applications that there is no change in circumstances, seemingly implying that a court cannot reconsider bail.  Occasionally, this is argued in Part I during a bail review.  Increasingly, it is argued at arraignments on indictment.   Although a prosecutor may certainly make the argument in suggesting to the court that the court might want to consider the earlier court's determination, there is no law that binds the Part I judge or arraigning superior court judge to refuse to reconsider bail.  In fact, the law really appears to be the opposite..  But the argument seems to be gaining traction as a way of opposing our bail applications.  As the argument is made more frequently, it seems that some judges are then asking the question, "Is there a change in circumstances?" Defense counsel must be familiar with the law and ready to respond to that question, so that "change in circumstances" does not become the new (wrong) standard for bail applications.

As many of you know, when a defendant is first arraigned in City Court, the attorney doing the arraignment has little or no information about the defendant.  There is an accusatory instrument, perhaps with names and details redacted, and a recommendation from Pre-trial Release Services if they were able to find someone to verify information.  There is an eligibility form which has very little information.  The attorney from the Public Defender's Office does not have the opportunity to go back and discuss details of the person's life, reviewing the bail factors contained in CPL 510.30 like character, reputation, mental condition, employment, family ties, etc.  There has been no  investigation.  So after a fairly quick review, the City Court judge sets bail.  With counsel at arraignment in local courts, the process is changing, but the opportunity to obtain all of the necessary information isn't there.  

So when a City Court judge sets bail based on a quick exchange between attorney and defendant and a pitch by the prosecutor, it wouldn't make sense for that to be the last word on bail.  Keep that in mind when you are asked at a Part I bail application or arraignment in superior court about what the bail was in local court.  Be prepared to respond (if true, of course)  that you were not there, there was no opportunity for someone to engage in a sufficient discussion with the defendant, etc.  (But keep in mind with counsel at arraignment now occurring in local courts, there may be a more extensive conversation than what takes place in City Court - check with the arraigning attorney.  There still has been no investigation, though.)  

It's worth looking  at the applicable bail statutes and case law to consider when a court is bound by a prior determination of bail.  (Spoiler - in Part I, or at arraignment in superior court, never.  In fact, in any situation, probably never, though a habeas court is bound by the record below.)

CPL Articles 500, 510, 520 and 530 address various aspects of bail.  The bail determination that must be made by a local criminal court on arraignment is governed by CPL 530.20 ("Order of recognizance or bail; by local criminal court when action is pending therein.")  That statute addresses when a local criminal court must or may set bail.  

Part I applications

Part I bail review (the review by a superior court of bail set in a local criminal court) is addressed in CPL 530.30 ("Order of recognizance or bail; by superior court judge when action is pending in local criminal court.")  This statute DOES NOT contain any language about "change in circumstances,"  Instead, it addresses the right of a DEFENDANT (not prosecutor) to make an application when the local criminal court is unauthorized to order recognizance or set bail (A felonies, double predicates), has denied an application for recognizance or bail, or has fixed excessive bail.  This statute does limit a defendant to one opportunity to make a Part I application. It should be noted that if the legislature had intended the local court's determination to be binding in Part I it would not have allowed for the type of review contained in the statute, and it would have included the "change in circumstances" language.

Since that statute appears to specifically invite a bail application despite a lack of change in circumstances, as the court can review what you consider excessive bail, the phrase shouldn't even make it into the conversation.

Arraignments on indictments

At arraignment on an indictment in superior court, the superior court must also review bail.  The CPL sets forth the obligation of the arraigning court:  CPL 210.15(6), which addresses arraignment upon indictment, states "Upon the arraignment, the court, unless it intends to make a final disposition of the action immediately thereafter, must, as provided in section 530.40, (emphasis added)  issue a securing order, releasing the defendant on his own recognizance or fixing bail or committing him to the custody of the sheriff for his future appearance in such action."  530.40 states,  "When a criminal action is pending in a superior court, such court, upon application of a defendant, must or may order recognizance or bail as follows..." Subdivision 2 states "When the defendant is charged with a felony, the court may, in its discretion, order recognizance or bail.  In any such case in which an indictment (a) has resulted from an order of a local criminal court holding the defendant for the action of the grand jury, or (b) was filed at a time when a felony complaint charging the same conduct was pending in a local criminal court, and in which such local criminal court or a superior court judge has issued an order of recognizance or bail which is still effective, the superior court's order may (emphasis added) be in the form of a direction continuing the effectiveness of the previous order."   Again, the language "change in circumstances" does not appear in these statutes.  And again, the legislature could have included it had it so intended.  Instead, the statute permits, but does not in any way require, the felony arraigning court to continue the lower court's order.  

So at arraignment on a felony, the superior court has the option, not the obligation, to continue the prior court's bail or recognizance.  If the arraigning court were bound by the lower court's decision, then a judge in local court would have the authority to set the permanent bail amount on a case that the local court judge does not even have jurisdiction over following indictment.  That wouldn't make sense, would it?

So what's all this about "change in circumstances"?  And why does it seem to be that we are more and more frequently trying to argue a change?

Considerations of change in circumstances

There are two situations where change in circumstances may be a more significant issue.  One is when there has already been a bail application to the superior court.  Subsequent applications may be made, and there is no law barring subsequent applications, but logically, for the court to reconsider, it is likely that the court will want to know what has changed to warrant reconsideration.  Sometimes the change may be passage of time, loss of witnesses, greater understanding of the weakness of the case, better housing for the defendant, or any one of a variety of things. For example, a defendant who sits in jail for months is in changed circumstances.  The factors which are used to secure a defendant's appearance are different from those which effectively sentence him to 9 months or a year without trial.  The demonstrated inability to make bail is a factor from which the court can determine that the bail which seemed reasonable at first may be unreasonably high.  Unchanged circumstances is a reason to choose not to reconsider bail, but it is not a bar to making an application.  

So the question of whether there is a change in circumstances should not deter you from making an application later in your case, but you should have some thoughts about why the court should change its original decision.  

See, e.g. People ex.rel. Rosenthal on behalf of Kolman v. Wolfson:


Changes in relevant facts, of course, may require reconsideration of a bail determination. If there be pertinent evidence which was not submitted to the bail-fixing court in the first instance, principles of orderly process dictate that a renewal of the application for the setting or reduction of bail be made on return to the trial court. (Cf. People ex rel. Llauget v. Cyrta, 35 A.D.2d 724, 315 N.Y.S.2d 246.) That court may not only be familiar with the factual elements of the case but may as well have already weighed pertinent judgmental considerations. Nothing would compel the anticipation that having declined relief on one set of facts, the trial court would automatically or routinely do so on an augmented or supplemented showing. In any event either the initial determination or that made on renewal would be subject in appropriate instances to scrutiny by writ of habeas corpus, thus preserving for that extraordinary procedural vehicle its traditional review function.

People ex rel. Rosenthal on Behalf of Kolman v. Wolfson, 48 N.Y.2d 230, 233, 397 N.E.2d 745, 746 (1979)

Second, as noted in Rosenthal on Behalf of Kolman v. Wolfson, there is a legal procedure in which one superior court may review the bail set by another superior court by writ of habeas corpus.  I think this is where a lot of the "change in circumstances" language is used, and has been conflated with initial bail determinations.
When reviewing a bail determination, the habeas corpus court is limited to the record that was before the nisi prius court, and evidence of a change in circumstances which may affect a bail determination must be submitted to the bail setting court for reconsideration. The decision of that court on the renewal of the bail application would then be subject to review by writ of habeas corpus (People ex rel. Rosenthal v. Wolfson, 48 N.Y.2d 230, 422 N.Y.S.2d 55, 397 N.E.2d 745). The habeas corpus court erred by considering evidence of the bail status of a codefendant. “To receive new evidence would be both to frustrate the integrity of the review function and to undertake a de novo bail determination. This the habeas corpus court may not do (People ex rel. Rosenthal v. Wolfson, supra, 233, 422 N.Y.S.2d 55, 397 N.E.2d 745).
People ex rel. Taylor v. Meloni, 96 A.D.2d 1149, 468 N.Y.S.2d 94 (4th Dept 1983). 

So the Fourth Department held that the bail setting court should be presented with changes in circumstances rather than the habeas court.  But it wasn't saying that bail could only be changed if there were a change in circumstances.  The habeas court will review the record of the trial court to determine if the bail setting violated constitutional standards or was excessive.

Habeas review

The Fourth Department has addressed the standards for habeas review:


A defendant who contends that a criminal court has unlawfully set bail or that the amount of bail is excessive may seek a writ of habeas corpus (see, CPLR 7010[b]; People ex rel. Klein v. Krueger, 25 N.Y.2d 497, 307 N.Y.S.2d 207, 255 N.E.2d 552). In determining the petition, the court may consider “whether the court [that set bail] abused its discretion pursuant to CPL 510.30 or violated a constitutional standard prohibiting excessive bail or its arbitrary refusal” (People ex rel. Robinson v. Campbell, 184 A.D.2d 988, 585 N.Y.S.2d 604; see also, People ex rel. Rosenthal v. Wolfson, 48 N.Y.2d 230, 232, 422 N.Y.S.2d 55, 397 N.E.2d 745; People ex rel. Hunt v. Warden of Riker's Is. Correctional Facility, 161 A.D.2d 475, 476, 555 N.Y.S.2d 742, lv. denied 76 N.Y.2d 703, 559 N.Y.S.2d 982, 559 N.E.2d 676). Thus, the court did not act in excess of its jurisdiction in determining the issues raised in the petition for a writ of habeas corpus.
Vargason v. Brunetti, 241 A.D.2d 941, 661 N.Y.S.2d 345, 346 (4th Dept 1997)

For further discussion of the scope of review of pursuant to a writ of habeas corpus, see CPLR 70.10(b), as well as the commentaries and cases cited in that section.  I think this may be a tool we do not use often enough.  

So the next time a prosecutor argues that there must be a change in circumstances, and the judge looks at you quizzically, waiting for a description of that change, consider a polite suggestion that "change in circumstances" is not the standard of review for prior bail, the lack of opportunity at the original arraignment to obtain and present relevant facts, and the fact that the court has complete discretion to change the bail, citing the relevant statutes and cases.  



The Court of Appeals Addresses The Use of Powerpoint in Summation

by

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

In People v. Cheryl Santiago, 2014 N.Y. Slip Op. 01261 (2/25/14)  the Court of Appeals  addressed several issues, including sufficiency of the corroboration of defendant's confession, admissibility of letters (with sexual content) written by the defendant to another inmate who testified about alleged admissions she made to him and the use of a Powerpoint presentation by the prosecution during summation. The defendant had been convicted of murder in the second degree following the suffocation death of her toddler stepdaughter.  

The Powerpoint issue is what caught my attention.  What is the place of Powerpoint in a summation or trial?  I haven't caught up with the technology in my trial practice, but this is certainly an area where we will have to become fluent.  What if the slides use words?  Are they demonstrative evidence that still have to be marked?  How does one do that?  What happens when you have parts of a Powerpoint that are animated?  How is that reflected in the transcript?

In Santiago, the Powerpoint took the same period of time that supposedly passed during the child's suffocation.  Postmortem slides of the child in the Powerpoint were displayed on the screen, introduced by the prosecutor, "[I]f there's any question in your mind how long six minutes take, take a look at this."   The slides showed a postmortem photo (or photos), changing at regular intervals, each successive slide fading, until the last one was white.  Some had captions:  "'one and a half to two minutes, struggle ends, and 'four minutes, brain death occurs..."

Here's what the Court wrote, in holding that the issues involving the Powerpoint were not preserved for review,:
In summation, 'counsel is to be afforded 'the widest latitude by way of comment, denunciation or appeal in advocating his cause' '(cites omitted), though within limits that are principally those of relevance (cite omitted).  Had defense counsel objected, the trial court would have had the opportunity to decide whether the challenged aspect of the Powerpoint presentation constituted 'a fair comment on the evidence' or was instead 'totally irrelevant to any legitimate issue presented at the trial (cites omitted)."  The Court stated that "[w]hether the trial court would have been required by the law to sustain an objection to the entirety of the Powerpoint presentation is not clear from this record...The slides depicting an already admitted photograph with captions accurately tracking prior medical testimony, might reasonably be regarded as relevant and fair, albeit dramatic, commentary on the medical evidence, and not simply an appeal to the jury's emotions....On the other hand, the relevance of the visual device whereby the postmortem picture faded at 30 second intervals over a six-minute period - with each slide fading more and more to white, and the final slide appearing totally white - is difficult to discern.  This did not show how Justice's death occurred nor would it have aided the jury in its fact-finding function

Justice Rivera's dissent provides some guidance on the objection to make regarding Powerpoint presentations:


Defense counsel's failure to object to the prosecutor's use during summation of a Powerpoint presentation that manipulated the evidence, and was designed to inflame the passion of the jury in order to engender prejudice against the defendant, constitutes an error of the type that so tainted the jury's deliberative process as to deny defendant a fair trial.

Judge Rivera continued:
We have admonished that the prosecutor's summation 'should not seek to lead the jury away from the issues by drawing irrelevant and inflammatory conclusions which have a  decided tendency to prejudice the jury against the defendant (cites omitted).  Where a prosecutor's summation 'venture[s] well beyond the evidence and the bounds of fair comment,' a defendant is deprived of a fair trial (cites omitted)....Summation 'must stay within 'the four corners of the evidence'...and avoid irrelevant comments which have no bearing on any legitimate issue in the case (cites omitted)..

The dissent contains a great discussion of what is permissible in a prosecutor's summation.

So if there is a Powerpoint used during summation, consider the following:
1.  Is it accurate in its depiction of an aspect of the case?  (Justice Rivera noted the disappearing corpse did not accurately reflect the appearance of the child during that six minutes.)
2.  Is its emphasis to inflame the passion of the jury, rather than review the evidence?
3.  Make sure you object - with descriptions of what is depicted, whether it is animated, perhaps the time it is taking, what effects are being used, the jury's reaction, and why it is more prejudicial than probative - inflaming passions of jury?  Mischaracterizing the evidence?  Inaccurately depicting it?
4.  Make sure the Powerpoint is marked and preserved.  
5.  What kind of instruction can you request if the Powerpoint went over the line?  Ask the Judge to have the jury disregard?  Remind them they are not to decide the case based on emotion, but instead the law and facts?  Does it warrant a mistrial if it's part of a pattern of prosecutorial misconduct?

Justice Rivera goes on to note:


With the ever increasing use of technology and ease with which evidence may be presented, even with minimal computer resources, we must be mindful of the impact of technology on events in the courtroom, and, most especially, on the criminal justice system. It is easy to view the use of certain technological devices in the courtroom as merely another way of presenting evidence. We cannot forget, however, that technology also serves as a powerful tool to communicate images and concepts in ways that engage the jury distinctly, and perhaps more effectively, than the spoken word. This is no less true during 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, NY Prac § 397 at 692 [5th ed 2011]).

Access to a Rape Complainant's Mental Health Records

by
Jill Paperno, author of
Representing the Accused: A Practical Guide to Criminal Defense

In People v. McCray, 2014 NY Slip Op 02970 (5/1/14), the Court of Appeals considered the extent to which a defendant is entitled to the mental health records of a complainant in a rape case.  The Court of Appeals upheld the lower court's limited disclosure of the mental health records of the complainant.   In the Third Department's decision the Court stated:
Here, defendant requested all of the victim's mental health records, based on the disclosure by the People that the victim has a history of mental illness, had been the victim of sexual abuse on at least three prior occasions and had attempted suicide in the months leading up to the trial.
Under these circumstances, County Court appropriately conducted an in camera review of the victim's records and partially granted defendant's request by turning over those records that the court found were pertinent to the case.
People v. Terence McCray, 102 A.D.3d 1000, 1005, 958 N.Y.S.2d 511, 518 (2013) aff'd sub nom. People v. McCray, 40, 2014 WL 1697020 (N.Y. May 1, 2014)

Check that out - the prosecutor disclosed the prior claims of sexual abuse, the suicide attempt and the history of mental illness to the defense!  According to the Court of Appeals decision, the defense requested that the prosecution provide the defense with all of the mental health  (MH) records of the complainant.  Without specifically stating the prosecution obtained the records, the Court of Appeals decision notes that the trial court conducted an in camera review, only releasing 28 pages.  The majority considers whether the defense was entitled to more, and concludes it was not.  But the fact that the Court considered whether it should be 28 or more, rather than whether the 28 pages were a gift, is pretty significant.  This is the type of material defendants are entitled to but routinely denied.  

This decision is useful for a few reasons.  First, it recognizes that this information was Brady  material.  In concluding most of the records were cumulative, the Court did consider one aspect that was not cumulative- prior complaints of sexual abuse, but held that the trial court did not abuse its discretion in failing to turn that over.  

Also, the Court's holding that the complainant's 2004 accusation was far removed in time and quite different from the accusation she made in 2009 can be helpful to defendants.  Applying that logic, when a defendant is alleged to have engaged in some act the prosecution seeks to offer as Molineux, defense counsel should similarly be able to argued that five years is too "far removed in time?"   

And Judge Rivera's dissent is a wonderful guide on how to argue for MH records of a complainant, focusing on the state right to confront and cross examine, what constitutes cumulativeness (or is that cumulativity?) and the constitutional underpinnings of this area of law.  Definitely worth a read, and filing away for the next time you're seeking these records.