Friday, December 12, 2008

Rape Conviction Overturned for Lack of Specificity

This week, in People v Bennett (2008 NY Slip Op 09811 [2d Dept 12/09/08]), the Second Department overturned a rape conviction when the second-grade victim could only give a nine-month window for the date of the incident. The Court explained that while
a per se (nine-month) bar does not apply, a significantly lengthy period is a factor to be considered, with "proportionally heightened scrutiny" given to whether the People's inability to provide more precise times can be justified as against the important notice rights of the defendant (People v Sedlock, 8 NY3d at 539; People v Watt, 81 NY2d 772, 775).

At trial, the victim testified that the two incidents occurred about two weeks apart when she was in the middle of second grade. The first incident occurred when her mother was at the grocery store with the victim's brother. The second incident occurred when the mother took the brother to the doctor. The People should have inquired as to when the mother took the victim's brother to the doctor and/or should have sought to obtain the brother's medical records to narrow the time frame of the crimes as alleged. The defendant's ability to prepare a defense was further stymied by the fact that the victim testified that the incidents occurred in the middle of her second grade school year, which would have been during the winter, but the amended bill of particulars provided that the incidents occurred when the weather was warm. Under these circumstances, when the time period charged, namely seven months, approaches the nine-month period found to be per se unreasonable in People v Beauchamp (74 NY2d 639; see People v Sedlock, 8 NY3d at 538), the People are subjected to "proportionally heightened scrutiny" as to whether their inability to provide more precise times is justified (id at 539). There is no indication that the People inquired of the mother or of the doctor of the victim's brother regarding as to when the brother was treated.

As Assistant Monroe County Public Defender David Abbatoy (who brought Bennett to our attention) has noted, Bennett and the cases cited within make clear that the judge should not simply rely on the prosecutor's representations regarding the victim's intelligence,etc. The government should demonstrate its inability at a hearing. The judge should then make an independent determination as to whether more precise notice is required based on the complainant's age, etc. This should occur at a hearing with sworn testimony from the complainant. Perhaps we can call it a "Sedlock Hearing."

Rape Conviction Overturned for Lack of Specificity

This week, in People v Bennett (2008 NY Slip Op 09811 [2d Dept 12/09/08]), the Second Department overturned a rape conviction when the second-grade victim could only give a nine-month window for the date of the incident. The Court explained that while
a per se (nine-month) bar does not apply, a significantly lengthy period is a factor to be considered, with "proportionally heightened scrutiny" given to whether the People's inability to provide more precise times can be justified as against the important notice rights of the defendant (People v Sedlock, 8 NY3d at 539; People v Watt, 81 NY2d 772, 775).

At trial, the victim testified that the two incidents occurred about two weeks apart when she was in the middle of second grade. The first incident occurred when her mother was at the grocery store with the victim's brother. The second incident occurred when the mother took the brother to the doctor. The People should have inquired as to when the mother took the victim's brother to the doctor and/or should have sought to obtain the brother's medical records to narrow the time frame of the crimes as alleged. The defendant's ability to prepare a defense was further stymied by the fact that the victim testified that the incidents occurred in the middle of her second grade school year, which would have been during the winter, but the amended bill of particulars provided that the incidents occurred when the weather was warm. Under these circumstances, when the time period charged, namely seven months, approaches the nine-month period found to be per se unreasonable in People v Beauchamp (74 NY2d 639; see People v Sedlock, 8 NY3d at 538), the People are subjected to "proportionally heightened scrutiny" as to whether their inability to provide more precise times is justified (id at 539). There is no indication that the People inquired of the mother or of the doctor of the victim's brother regarding as to when the brother was treated.

As Assistant Monroe County Public Defender David Abbatoy (who brought Bennett to our attention) has noted, Bennett and the cases cited within make clear that the judge should not simply rely on the prosecutor's representations regarding the victim's intelligence,etc. The government should demonstrate its inability at a hearing. The judge should then make an independent determination as to whether more precise notice is required based on the complainant's age, etc. This should occur at a hearing with sworn testimony from the complainant. Perhaps we can call it a "Sedlock Hearing."

Sunday, December 7, 2008

Second Circuit Recognizes Importance of Defendants' Right To Examine Prosecution Witness's Racism

In two cases, the Second Circuit Court of Appeals issued rulings emphasizing the rights of defendants to cross-examine prosecution witnesses regarding evidence of their racial or ethnic bias.In Brinson v Walker (--- F.3d ----, 2008 WL 4890153 [2nd Cir 11/13/08])the court granted habeas corpus relief and vacated a New York state robbery conviction whee the New York trial judge precluded the black defendant from presenting evidence (both through cross examination and by extrinsic evidence) that the complainant harbored strong racial bias towards blacks. The Court first reviewed the evidentiary right to present evidence or bias and concluded that
where the racial bias sought to be exposed is of sufficient intensity that it is reasonably likely to result in the falsification of the witness's testimony against the accused, a preclusion of cross-examination on the ground that racial bias is general and not specifically directed against the defendant is an unreasonable application of Supreme Court decisional law.

Applying the five factor test set forth by the Supreme Court in Delaware v. Van Arsdall 475 U.S. 673 the Court ruled that the error was not harmless, given the critical role of the complainant's testimony and the absence of other means to establish this bias.

Similarly, in U.S. v. Figueroa --- F.3d ----, 2008 WL 4911158 [2nd Cir 11/18/08], the Court held that an Hispanic defendant's constitutional right to confrontation was violated when the federal district court judge precluded cross-examination of a prosecution witness about the witness's swastika tattoos. The Court explained a person choosing to have swastika tattoos tends to suggest that the person holds racial, religious, or ethnic biases and this evidence of bias is relevant and admissible under Federal Rule of Evidence 402. However, given the other evidence of guilt, the Court found this erroneous violation of the right to confrontation to be harmless beyond a reasonable doubt.

Second Circuit Recognizes Importance of Defendants' Right To Examine Prosecution Witness's Racism

In two cases, the Second Circuit Court of Appeals issued rulings emphasizing the rights of defendants to cross-examine prosecution witnesses regarding evidence of their racial or ethnic bias.In Brinson v Walker (--- F.3d ----, 2008 WL 4890153 [2nd Cir 11/13/08])the court granted habeas corpus relief and vacated a New York state robbery conviction whee the New York trial judge precluded the black defendant from presenting evidence (both through cross examination and by extrinsic evidence) that the complainant harbored strong racial bias towards blacks. The Court first reviewed the evidentiary right to present evidence or bias and concluded that
where the racial bias sought to be exposed is of sufficient intensity that it is reasonably likely to result in the falsification of the witness's testimony against the accused, a preclusion of cross-examination on the ground that racial bias is general and not specifically directed against the defendant is an unreasonable application of Supreme Court decisional law.

Applying the five factor test set forth by the Supreme Court in Delaware v. Van Arsdall 475 U.S. 673 the Court ruled that the error was not harmless, given the critical role of the complainant's testimony and the absence of other means to establish this bias.

Similarly, in U.S. v. Figueroa --- F.3d ----, 2008 WL 4911158 [2nd Cir 11/18/08], the Court held that an Hispanic defendant's constitutional right to confrontation was violated when the federal district court judge precluded cross-examination of a prosecution witness about the witness's swastika tattoos. The Court explained a person choosing to have swastika tattoos tends to suggest that the person holds racial, religious, or ethnic biases and this evidence of bias is relevant and admissible under Federal Rule of Evidence 402. However, given the other evidence of guilt, the Court found this erroneous violation of the right to confrontation to be harmless beyond a reasonable doubt.

Tuesday, December 2, 2008

Molineux and Multiple Count Prosecutions

In People v Giles (2008 NY Slip Op 09433 [12/2/08]), the Court of Appeals issued an important decision regarding the application of Molineux. Specifically the Court held that even when evidence of other crimes may be relevant and admissible to some charged counts, the trial court in admitting such evidence is required to give that limiting instructions advising the jury that while the evidence may be relevant to some charges, it must not be considered regarding the other counts.

While the Court approved introduction of detailed evidence regarding how stolen property the defendant possessed came to be stolen, it disapproved the use of such evidence to show that unrelated activity was an attempted burglary. In reversing some counts, the court found that possession of the proceeds of prior burglaries "has no bearing other than to show that defendant is of a criminal bent or character and thus likely to have committed the crime charged" with regard to a currently charged attempted burglary. Thus, the Court held that the trial court
erred by failing to issue a limiting instruction to cure the potential
prejudicial effect of the evidence regarding the uncharged burglaries on the attempted burglary and possession of burglar's tools counts. Supreme Court should have advised the jury that it could consider the evidence for the possession of stolen property counts, but that it could not consider the prior burglaries with respect to the attempted burglary and possession of burglar's tools counts.

The Court also arguably acknowledged, sub silentio, that the viability of
the persistent felony statute is uncertain (it declined to reach the
issue), even though the Court of Appeals has consistently upheld the
statute against Apprendi (Apprendi v New Jersey, 530 US 466 [2000) claims
(see People v Rivera, 5 NY3d 61 [2005]. The post-Rivera decision of the
United States Supreme Court in Cunningham v California, 549 US 270 [2007] suggests that Rivera might not be the last word on the constitutionality of the New York persistent sentencing law.

Molineux and Multiple Count Prosecutions

In People v Giles (2008 NY Slip Op 09433 [12/2/08]), the Court of Appeals issued an important decision regarding the application of Molineux. Specifically the Court held that even when evidence of other crimes may be relevant and admissible to some charged counts, the trial court in admitting such evidence is required to give that limiting instructions advising the jury that while the evidence may be relevant to some charges, it must not be considered regarding the other counts.

While the Court approved introduction of detailed evidence regarding how stolen property the defendant possessed came to be stolen, it disapproved the use of such evidence to show that unrelated activity was an attempted burglary. In reversing some counts, the court found that possession of the proceeds of prior burglaries "has no bearing other than to show that defendant is of a criminal bent or character and thus likely to have committed the crime charged" with regard to a currently charged attempted burglary. Thus, the Court held that the trial court
erred by failing to issue a limiting instruction to cure the potential
prejudicial effect of the evidence regarding the uncharged burglaries on the attempted burglary and possession of burglar's tools counts. Supreme Court should have advised the jury that it could consider the evidence for the possession of stolen property counts, but that it could not consider the prior burglaries with respect to the attempted burglary and possession of burglar's tools counts.

The Court also arguably acknowledged, sub silentio, that the viability of
the persistent felony statute is uncertain (it declined to reach the
issue), even though the Court of Appeals has consistently upheld the
statute against Apprendi (Apprendi v New Jersey, 530 US 466 [2000) claims
(see People v Rivera, 5 NY3d 61 [2005]. The post-Rivera decision of the
United States Supreme Court in Cunningham v California, 549 US 270 [2007] suggests that Rivera might not be the last word on the constitutionality of the New York persistent sentencing law.

Tuesday, November 25, 2008

Preservation of Error, Sandoval, and T.O.D. Motions

In People v Hawkins (2008 NY Slip Op 09254 [11/25/08]) the Court of Appeals provided counsel with further guidance as to what is required to preserve errors for review as a matter of law. Unfortunately, as detailed below, the Court's decision appears to raise as many questions as it answers.

The statutory requirements of preservation of error are set forth in Criminal Procedure Law (CPL) 470.05[2], which provides in relevant part:

For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when . . . a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.

CPL 470.05 was changed to its current form to do away with overly technical preservation requirements that served to bar appellate courts from hearing substantive issues. (See Practice Commentary to CPL 470.05 [1994 Main Volume] ["The last sentence, moreover, dispenses with the necessity of any specific protest where a ruling or instruction is sought and not given as requested. In short, a defendant who, for example, fruitlessly requests the court to instruct the jury to disregard a certain item of evidence has, by the very request, adequately raised a question of law for appeals purposes regardless of whether he subsequently registers an exception or other protest to the court's failure to give the instruction."].)

Thus, one might reasonably have thought that there is no longer a preservation requirement in New York law that an attorney take exception upon the denial of requested relief. One would be wrong. Despite counsel having requested in pre-trial motions that the People be prohibited from cross-examining defendant regarding prior convictions and bad acts, the Court of Appeals ruled in Hawkins that "defendant's Sandoval objection is unpreserved, as defendant made no objection to the court's ruling." This ruling permitted the People to cross-examine Mr. Hawkins with respect to the existence, but not the underlying facts, of two of his four prior burglary convictions. Counsel did not take exception to this ruling which was different than the relief he had requested.

The Hawkins Court neither cited CPL 470.05 nor explained how to reconcile this holding with that statute. It is now clear than an exception is required for preservation for review of a so-called Sandoval compromise ruling, even when that was not the relief requested by counsel.

The Sandoval ruling was not the primary preservation issue before the Court in Hawkins. Rather as previously discussed here the issues that divided the Fourth Department in Hawkins was what language is required, pursuant to People v Gray (86 NY2d 10), in a T.O.D. motion to raise and preserve a claim that the People's proof was legally insufficient.

The Court held that when Hawkins' counsel objected that the People "failed to prove that Mr. Hawkins acted with Depraved Indifference Murder,"
that motion did little more than argue that the People failed to prove the essential elements of depraved indifference murder. The objection could have been directed at either the reckless mens rea element, or at the objective circumstances evincing a wanton, depraved indifference to human life, and did not alert the trial court to the argument now being advanced: that defendant acted intentionally, not recklessly, in killing the victim. Defendant did not preserve that legal question for our review.

If the proof was legally insufficient and Gray clearly requires more than what was done, was counsel ineffective for not preserving the issue? Clearly there could be no tactical nor strategic reason for such failure.

Preservation of Error, Sandoval, and T.O.D. Motions

In People v Hawkins (2008 NY Slip Op 09254 [11/25/08]) the Court of Appeals provided counsel with further guidance as to what is required to preserve errors for review as a matter of law. Unfortunately, as detailed below, the Court's decision appears to raise as many questions as it answers.

The statutory requirements of preservation of error are set forth in Criminal Procedure Law (CPL) 470.05[2], which provides in relevant part:

For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when . . . a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.

CPL 470.05 was changed to its current form to do away with overly technical preservation requirements that served to bar appellate courts from hearing substantive issues. (See Practice Commentary to CPL 470.05 [1994 Main Volume] ["The last sentence, moreover, dispenses with the necessity of any specific protest where a ruling or instruction is sought and not given as requested. In short, a defendant who, for example, fruitlessly requests the court to instruct the jury to disregard a certain item of evidence has, by the very request, adequately raised a question of law for appeals purposes regardless of whether he subsequently registers an exception or other protest to the court's failure to give the instruction."].)

Thus, one might reasonably have thought that there is no longer a preservation requirement in New York law that an attorney take exception upon the denial of requested relief. One would be wrong. Despite counsel having requested in pre-trial motions that the People be prohibited from cross-examining defendant regarding prior convictions and bad acts, the Court of Appeals ruled in Hawkins that "defendant's Sandoval objection is unpreserved, as defendant made no objection to the court's ruling." This ruling permitted the People to cross-examine Mr. Hawkins with respect to the existence, but not the underlying facts, of two of his four prior burglary convictions. Counsel did not take exception to this ruling which was different than the relief he had requested.

The Hawkins Court neither cited CPL 470.05 nor explained how to reconcile this holding with that statute. It is now clear than an exception is required for preservation for review of a so-called Sandoval compromise ruling, even when that was not the relief requested by counsel.

The Sandoval ruling was not the primary preservation issue before the Court in Hawkins. Rather as previously discussed here the issues that divided the Fourth Department in Hawkins was what language is required, pursuant to People v Gray (86 NY2d 10), in a T.O.D. motion to raise and preserve a claim that the People's proof was legally insufficient.

The Court held that when Hawkins' counsel objected that the People "failed to prove that Mr. Hawkins acted with Depraved Indifference Murder,"
that motion did little more than argue that the People failed to prove the essential elements of depraved indifference murder. The objection could have been directed at either the reckless mens rea element, or at the objective circumstances evincing a wanton, depraved indifference to human life, and did not alert the trial court to the argument now being advanced: that defendant acted intentionally, not recklessly, in killing the victim. Defendant did not preserve that legal question for our review.

If the proof was legally insufficient and Gray clearly requires more than what was done, was counsel ineffective for not preserving the issue? Clearly there could be no tactical nor strategic reason for such failure.

Tuesday, November 18, 2008

SORA Risk Assessment Guidelines Strictly Construed

In People v Aldrich (2008 NY Slip Op 08916 [4th Dept 11/14/08])the Court lowered a defendant;s risk level upon concluding that the lower court had incorrectly assessed 30 points. First, the Court held "that the court erred in assessing 25 points for attempted sexual intercourse because there was no evidence of actual sexual intercourse between defendant and the victim as required to assess points under the category of 'Sexual contact with victim.'" Additionally, it was error for the court to assess 5 points under the category of "Release with supervision" where the defendant was released into the community under the supervision of "a probation or parole officer who oversees a sex offender caseload or who otherwise specializes in the management of such offenders" should not be assessed any points for release under supervision.

SORA Risk Assessment Guidelines Strictly Construed

In People v Aldrich (2008 NY Slip Op 08916 [4th Dept 11/14/08])the Court lowered a defendant;s risk level upon concluding that the lower court had incorrectly assessed 30 points. First, the Court held "that the court erred in assessing 25 points for attempted sexual intercourse because there was no evidence of actual sexual intercourse between defendant and the victim as required to assess points under the category of 'Sexual contact with victim.'" Additionally, it was error for the court to assess 5 points under the category of "Release with supervision" where the defendant was released into the community under the supervision of "a probation or parole officer who oversees a sex offender caseload or who otherwise specializes in the management of such offenders" should not be assessed any points for release under supervision.

When Can A One On One Killing Support A Depraved Indifference Murder Conviction?

The Court of Appeals has held that "[a] defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances" (People v Suarez, 6 NY3d 202, 212. But what those circumstances areremains unclear.

In People v Lagasse (2008 NY Slip Op 08799 [4th Dept 11/14/08]) the Court held that the evidence was legally insufficient to prove depraved indifference murder in a case involving a one on one beating where the decedent was left beaten, but alive and then died. As explained below, the Court found that the facts were consistent with intentional conduct, and, thus, inconsistent with depraved murder.

The forensic pathologist testified that the 61-year-old victim died from a subdural hematoma and brain injuries caused by blunt-force trauma that was consistent with being struck by fists. Defendant testified at trial that he had punched the victim in the head several times following an argument over the victim's sexual abuse of defendant 30 years earlier, but defendant further testified that, by the time he left the victim's house, he and the victim had reconciled and the victim was "fine." The evidence presented by the People at trial establishes that a struggle had occurred, there were blood spatters in the bathroom and a significant pool of blood on the kitchen floor, and the police found the victim's body face down in a small pool of blood on the living room floor, between the couch and a coffee table. We conclude that the evidence does not support the conclusion that the victim's death was caused by abandoning a helpless and vulnerable individual in circumstances in which he or she is likely to die (citations omitted), nor was there evidence of "torture or a brutal, prolonged . . . course of conduct against a particularly vulnerable victim" (citations omitted). "Whether he intended to kill [the victim] or merely to cause [him] serious injury——and either of these findings, supported by sufficient evidence, might have been properly made by the jury——defendant's actions in no way reflected a depraved indifference to [the victim's] fate" (People v Suarez, 6 NY3d at 216).

On the same day, in People v Jeffries (2008 NY Slip Op 08799 [4th Dept 11/14/08]) a different panel of the Fourth Department (with two of the same judges) held that proof that a defendant lifted a baby and threw her head first into the floor of the porch, causing severe head injuries that resulted in the child's death is legally sufficient to support the conviction for depraved murder. The Court rejected Jeffries' argument that the evidence establishes his manifest intent to kill or to cause serious physical injury and thus fails to establish the culpable mental state for depraved indifference murder. "Rather, the evidence establishes that defendant acted in a fit of rage directed at the child's mother, and the jury could have reasonably inferred that, when he threw the child, 'defendant consciously disregarded the risk of serious injury or death to the child, i.e., that he acted recklessly' (People v Jamison, 45 AD3d 1438, 1439, lv denied 10 NY3d 766)".

Thus the Court held that throwing a baby to the ground, causing massive and fatal injuries, is consistent with reckless conduct, but beating an adult and leaving him injured and bleeding is not.

When Can A One On One Killing Support A Depraved Indifference Murder Conviction?

The Court of Appeals has held that "[a] defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances" (People v Suarez, 6 NY3d 202, 212. But what those circumstances areremains unclear.

In People v Lagasse (2008 NY Slip Op 08799 [4th Dept 11/14/08]) the Court held that the evidence was legally insufficient to prove depraved indifference murder in a case involving a one on one beating where the decedent was left beaten, but alive and then died. As explained below, the Court found that the facts were consistent with intentional conduct, and, thus, inconsistent with depraved murder.

The forensic pathologist testified that the 61-year-old victim died from a subdural hematoma and brain injuries caused by blunt-force trauma that was consistent with being struck by fists. Defendant testified at trial that he had punched the victim in the head several times following an argument over the victim's sexual abuse of defendant 30 years earlier, but defendant further testified that, by the time he left the victim's house, he and the victim had reconciled and the victim was "fine." The evidence presented by the People at trial establishes that a struggle had occurred, there were blood spatters in the bathroom and a significant pool of blood on the kitchen floor, and the police found the victim's body face down in a small pool of blood on the living room floor, between the couch and a coffee table. We conclude that the evidence does not support the conclusion that the victim's death was caused by abandoning a helpless and vulnerable individual in circumstances in which he or she is likely to die (citations omitted), nor was there evidence of "torture or a brutal, prolonged . . . course of conduct against a particularly vulnerable victim" (citations omitted). "Whether he intended to kill [the victim] or merely to cause [him] serious injury——and either of these findings, supported by sufficient evidence, might have been properly made by the jury——defendant's actions in no way reflected a depraved indifference to [the victim's] fate" (People v Suarez, 6 NY3d at 216).

On the same day, in People v Jeffries (2008 NY Slip Op 08799 [4th Dept 11/14/08]) a different panel of the Fourth Department (with two of the same judges) held that proof that a defendant lifted a baby and threw her head first into the floor of the porch, causing severe head injuries that resulted in the child's death is legally sufficient to support the conviction for depraved murder. The Court rejected Jeffries' argument that the evidence establishes his manifest intent to kill or to cause serious physical injury and thus fails to establish the culpable mental state for depraved indifference murder. "Rather, the evidence establishes that defendant acted in a fit of rage directed at the child's mother, and the jury could have reasonably inferred that, when he threw the child, 'defendant consciously disregarded the risk of serious injury or death to the child, i.e., that he acted recklessly' (People v Jamison, 45 AD3d 1438, 1439, lv denied 10 NY3d 766)".

Thus the Court held that throwing a baby to the ground, causing massive and fatal injuries, is consistent with reckless conduct, but beating an adult and leaving him injured and bleeding is not.

When Is a Win Not a Win?

In People v Backus (2008 NY Slip Op 08772 [4th Dept 11/14/2008)] the defendant won on his claim that the consecutive sentence imposed was illegal. However, a panel of the Fourth Department divided 3-2 as to the appropriate remedy, with the majority holding that on remitter of the matter to County Court to resentence defendant the court should "entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety." Not so good for Mr. Backus.

Specifically, Backus appealed from a judgment convicting him, upon his plea of guilty, of two counts of vehicular assault in the second degree (Penal Law § 120.03 [1]) and one count of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), and sentencing him to two one-year concurrent definite terms for vehicular assault, and a one-year definite term for driving while intoxicated, to be served consecutively. Since the offense of driving while intoxicated is a material element of the offense of vehicular assault in the second degree and thus the sentence was illegal insofar as County Court imposed consecutive sentences. As set forth below the two dissenting Justices would have corrected the illegality by ordering the sentences to run concurrently:

As noted by the majority, the sentence in this case was imposed pursuant to a plea agreement, but we have in the past modified a judgment on the ground that the bargained-for sentence was illegal because consecutive sentences were not permissible and have directed that the sentences run concurrently (see People v Taylor, 197 AD2d 858). There is no sentence that the court could impose here that would result in the bargained-for sentence, i.e., two one-year definite terms of imprisonment. Defendant has already served a one-year definite term and, "when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced" (CPL 430.10). Although it is implicit in CPL 430.10 that a court has the power to correct an illegal sentence even if the defendant has begun serving it, a court may not alter a sentence that "is in accordance with law" once it is being served (id.; see People v Carpenter, 19 AD3d 730, 732, lv denied 5 NY3d 804). In our view, the illegality of the sentence was in directing the one-year definite sentence for driving while intoxicated to run consecutively to the one-year concurrent definite sentences for vehicular assault (see People v Davis, 12 AD3d 237, 238). That defect is corrected by directing that the sentences run concurrently (see id.).

When Is a Win Not a Win?

In People v Backus (2008 NY Slip Op 08772 [4th Dept 11/14/2008)] the defendant won on his claim that the consecutive sentence imposed was illegal. However, a panel of the Fourth Department divided 3-2 as to the appropriate remedy, with the majority holding that on remitter of the matter to County Court to resentence defendant the court should "entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety." Not so good for Mr. Backus.

Specifically, Backus appealed from a judgment convicting him, upon his plea of guilty, of two counts of vehicular assault in the second degree (Penal Law § 120.03 [1]) and one count of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), and sentencing him to two one-year concurrent definite terms for vehicular assault, and a one-year definite term for driving while intoxicated, to be served consecutively. Since the offense of driving while intoxicated is a material element of the offense of vehicular assault in the second degree and thus the sentence was illegal insofar as County Court imposed consecutive sentences. As set forth below the two dissenting Justices would have corrected the illegality by ordering the sentences to run concurrently:

As noted by the majority, the sentence in this case was imposed pursuant to a plea agreement, but we have in the past modified a judgment on the ground that the bargained-for sentence was illegal because consecutive sentences were not permissible and have directed that the sentences run concurrently (see People v Taylor, 197 AD2d 858). There is no sentence that the court could impose here that would result in the bargained-for sentence, i.e., two one-year definite terms of imprisonment. Defendant has already served a one-year definite term and, "when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced" (CPL 430.10). Although it is implicit in CPL 430.10 that a court has the power to correct an illegal sentence even if the defendant has begun serving it, a court may not alter a sentence that "is in accordance with law" once it is being served (id.; see People v Carpenter, 19 AD3d 730, 732, lv denied 5 NY3d 804). In our view, the illegality of the sentence was in directing the one-year definite sentence for driving while intoxicated to run consecutively to the one-year concurrent definite sentences for vehicular assault (see People v Davis, 12 AD3d 237, 238). That defect is corrected by directing that the sentences run concurrently (see id.).

Disclosure After Two Years Is Not A Prompt Outcry

What constitutes a prompt outcry permitting the admission of hearsayis a relative concept dependent on the facts. In People v Workman (2008 NY Slip Op 08801 [4th Dept 11/18/08]) the Court held that the trial court erred in admitting in evidence the testimony of the boyfriend of the victim concerning her disclosure of the sexual abuse two years after the last incident of abuse. The court admitted the testimony as a prompt outcry, inasmuch as "evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place" (People v McDaniel, 81 NY2d 10, 16). The Court held that
the victim's disclosure in this case was not prompt. As noted, the victim made the disclosure two years after the last incident of abuse, and the record establishes that she had been living away from defendant for a period of time before making the disclosure and had not received any threats that prevented her from disclosing the abuse.

This erroneous admission was held to be harmless because his testimony mirrored evidence [that was] disclosed to the jury without objection.

On a brighter note for Mr. Workman, the Court, sua sponte, as a matter of discretion in the interest of justice, concluded that the evidence was legally insufficient to support the conviction of course of sexual conduct against a child in the first degree under Penal Law § 130.75 (1) (a). That Penal Law section requires evidence that, over at least a three-month period, defendant engaged "in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child [*2]less than eleven years old . . . ." The Court explained that there was no evidence that defendant engaged in any act other than forcible touching before the victim was 11 years old and that the conviction on that count, thus, must be reversed.

Disclosure After Two Years Is Not A Prompt Outcry

What constitutes a prompt outcry permitting the admission of hearsayis a relative concept dependent on the facts. In People v Workman (2008 NY Slip Op 08801 [4th Dept 11/18/08]) the Court held that the trial court erred in admitting in evidence the testimony of the boyfriend of the victim concerning her disclosure of the sexual abuse two years after the last incident of abuse. The court admitted the testimony as a prompt outcry, inasmuch as "evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place" (People v McDaniel, 81 NY2d 10, 16). The Court held that
the victim's disclosure in this case was not prompt. As noted, the victim made the disclosure two years after the last incident of abuse, and the record establishes that she had been living away from defendant for a period of time before making the disclosure and had not received any threats that prevented her from disclosing the abuse.

This erroneous admission was held to be harmless because his testimony mirrored evidence [that was] disclosed to the jury without objection.

On a brighter note for Mr. Workman, the Court, sua sponte, as a matter of discretion in the interest of justice, concluded that the evidence was legally insufficient to support the conviction of course of sexual conduct against a child in the first degree under Penal Law § 130.75 (1) (a). That Penal Law section requires evidence that, over at least a three-month period, defendant engaged "in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child [*2]less than eleven years old . . . ." The Court explained that there was no evidence that defendant engaged in any act other than forcible touching before the victim was 11 years old and that the conviction on that count, thus, must be reversed.

Monday, November 17, 2008

Vindictiveness In Sentencing After Retrial

In People v Young(94 NY2d 171) the defendant had originally received an aggregate sentence of 45 years to life, including a sentence of 2-4 years on a count of criminal possession of stolen property. On retrial he was acquitted of a all counts other than the stolen property charge for which he was sentenced, as a persistent felon, to 25 years to life. This increase from 2-4 years to 25 years to life was held not to be presumptively vindictive.

The Young Court held that in determining whether the presumption of vindictiveness applies to a sentence imposed after a retrial,where a defendant receives a lesser over-all sentence following retrial, but a greater sentence on an individual count
the presumption arises only if the circumstances evince a reasonable likelihood that the greater sentence on the individual count was the result of vindictiveness (citations omitted). While trial courts in New York are required to impose discrete sentences for each individual count (see, CPL 380.20), we cannot ignore the reality that, in cases involving multiple counts, trial courts may view the individual sentences as part of an integrated whole. A trial court fashions its sentence on a “delicate balancing” of factors, including the defendant's background, criminal history and prospects for rehabilitation, in order to achieve a sentence that is appropriate both for the defendant and for the specific crimes of which the defendant was convicted(Citation omitted. Where, as here, a trial court adjusts the original sentence after retrial in order to reflect that balance, a presumption of vindictiveness will not arise.

Citing Young, the Appellate Division, Fourth Department, in People v Rogers (2008 NY Slip Op 08827 [4th Dept 11/14/08], found that the presumption of vindictiveness applied under facts very similar to those in Young.

Following his first trial, Mr. Rogers was sentenced to a determinate term of imprisonment of 20 years on the robbery count and an indeterminate term of imprisonment of 20 years to life on the murder count, but he was sentenced to a determinate term of imprisonment of 25 years on the robbery count following the retrial. The Court held that
"The threshold issue in evaluating whether a resentence is vindictive is whether the resentence is more severe than that originally imposed" (People v Cahill, 46 AD3d 1455, 1456; see generally People v Young, 94 NY2d 171, 176-177, rearg denied 94 NY2d 876; People v Van Pelt, 76 NY2d 156, 159-160), and a determinate sentence of 25 years is of course more severe than one of 20 years. Other factors that give rise to a presumption of vindictiveness are that the court imposed a greater sentence following the retrial despite the absence of any new information concerning defendant (see Van Pelt, 76 NY2d at 161), and, although defendant was acquitted of the murder count, the court stated at sentencing that it "felt constrained to impose the sentence because a death was involved." We further conclude that "[t]he record is devoid of any objective information sufficient to rebut the presumption of vindictiveness that arose from the court's imposition of a sentence greater than that imposed after the initial conviction" (People v Jenkins, 38 AD3d 566, 567-568, lv denied 8 NY3d 986).

It is difficult to discern which facts distinguish Rogers from Young.

Vindictiveness In Sentencing After Retrial

In People v Young(94 NY2d 171) the defendant had originally received an aggregate sentence of 45 years to life, including a sentence of 2-4 years on a count of criminal possession of stolen property. On retrial he was acquitted of a all counts other than the stolen property charge for which he was sentenced, as a persistent felon, to 25 years to life. This increase from 2-4 years to 25 years to life was held not to be presumptively vindictive.

The Young Court held that in determining whether the presumption of vindictiveness applies to a sentence imposed after a retrial,where a defendant receives a lesser over-all sentence following retrial, but a greater sentence on an individual count
the presumption arises only if the circumstances evince a reasonable likelihood that the greater sentence on the individual count was the result of vindictiveness (citations omitted). While trial courts in New York are required to impose discrete sentences for each individual count (see, CPL 380.20), we cannot ignore the reality that, in cases involving multiple counts, trial courts may view the individual sentences as part of an integrated whole. A trial court fashions its sentence on a “delicate balancing” of factors, including the defendant's background, criminal history and prospects for rehabilitation, in order to achieve a sentence that is appropriate both for the defendant and for the specific crimes of which the defendant was convicted(Citation omitted. Where, as here, a trial court adjusts the original sentence after retrial in order to reflect that balance, a presumption of vindictiveness will not arise.

Citing Young, the Appellate Division, Fourth Department, in People v Rogers (2008 NY Slip Op 08827 [4th Dept 11/14/08], found that the presumption of vindictiveness applied under facts very similar to those in Young.

Following his first trial, Mr. Rogers was sentenced to a determinate term of imprisonment of 20 years on the robbery count and an indeterminate term of imprisonment of 20 years to life on the murder count, but he was sentenced to a determinate term of imprisonment of 25 years on the robbery count following the retrial. The Court held that
"The threshold issue in evaluating whether a resentence is vindictive is whether the resentence is more severe than that originally imposed" (People v Cahill, 46 AD3d 1455, 1456; see generally People v Young, 94 NY2d 171, 176-177, rearg denied 94 NY2d 876; People v Van Pelt, 76 NY2d 156, 159-160), and a determinate sentence of 25 years is of course more severe than one of 20 years. Other factors that give rise to a presumption of vindictiveness are that the court imposed a greater sentence following the retrial despite the absence of any new information concerning defendant (see Van Pelt, 76 NY2d at 161), and, although defendant was acquitted of the murder count, the court stated at sentencing that it "felt constrained to impose the sentence because a death was involved." We further conclude that "[t]he record is devoid of any objective information sufficient to rebut the presumption of vindictiveness that arose from the court's imposition of a sentence greater than that imposed after the initial conviction" (People v Jenkins, 38 AD3d 566, 567-568, lv denied 8 NY3d 986).

It is difficult to discern which facts distinguish Rogers from Young.

Saturday, October 25, 2008

What Must Be Shown For A Defendant To Be Entitled To Specific Performance Of A Plea Agreement?

In People v Jenkins (2008 NY Slip Op 07992 [10/23/08]) the Court of Appeals considered who has to prove what in order for a defendant to be entitled to specific compliance of a plea agreement. Specifically who has has the burden of proof of compliance or non-compliance and what does that burden entail? Under what circumstances can a court add additional terms to a plea agreement? By a 6-1 vote, the Court upheld the addition of a term to the plea agreement in a case in which dissenting Judge Pigott writes that
the People did not contest defendant's claim that he was entitled to have the charges dismissed, let alone establish that he was not, nor did the court make such a finding. Indeed, the People never even argued in Supreme Court, the Appellate Division or to this Court that, as of October 2001, defendant had not complied with the terms and conditions of the plea agreement. Rather, the People have consistently argued that Supreme Court properly exercised its discretion in requiring defendant to participate in further services.

Mr. Jenkins pleaded guilty to a drug charge pursuant to a plea agreement permitting him to avoid incarceration upon (1) completing an 18- to 24-month residential drug treatment program at Veritas Therapeutic Community, a Drug Treatment Alternative to Prison (DTAP) program, and completing its aftercare or live-out treatment; (2) completing vocational training including obtaining a General Equivalency Diploma (GED); (3) securing full-time employment and (4) finding "suitable" housing. The plea agreement additionally required defendant to make every court appearance and not be rearrested. The agremtn was that the prosecutor would join in an application for dismissal of the charge upon Jenkins' complettion of these conditions.
Veritas provided regular updates to the court, culminating in letter, two years after the plea, in which Veritas wrote to the court that defendant has completed the two drug treatments programs, has obtained employment. But Vertias also wrote that Jenkins has "unresolved family issues" that would create further problems, if not addressed.
Jenkins moved for dismissal of the charges, alleging compliance with the conditions. The People did not join in, saying that they had not received documentary proof regarding the educational and employment conditions and requested an adjournment to provide the defendant time to submit documentation. The dissent points out that
the court conducted no inquiry and, presumably, made no determination as to whether defendant had, in fact, met all of the conditions of the plea agreement. Significantly, the People made no claim that defendant had not successfully completed the program. Rather, the People requested two to three weeks to respond and sought defendant's cooperation in providing certain documents. The court held an off-the-record discussion at the bench. What exactly was said during this discussion is unknown, but it caused defense counsel to withdraw the motion. What is known is that the parties talked about the "unresolved family issues" identified in the October 11th Veritas letter and that the court adjourned the matter to look into getting defendant "some other support services." Defendant voiced his objection stating, among other things, that he "completed everything there is to complete in this program.

The majority of the Court holds that having withdrawn the motion
Under these circumstances, where defendant had failed to provide satisfactory proof that he completed all of the conditions of his agreement, the People were entitled to an adjournment and not required to join in the motion to dismiss. Neither was Supreme Court compelled to "turn a blind eye" and dismiss this case in the furtherance of justice. To be sure, Supreme Court could not pass favorably on defendant's Clayton motion without evidentiary support demonstrating that he had complied with the terms of the agreement as CPL 210.40 requires the court to articulate on which factors it relies in dismissing an indictment. Affording the trial court this discretion does not, as the dissent maintains, improperly shift the burden of proof from the People to defendant.

By contrast, Judge Pigott, in dissent writes that
Clearly, it was Supreme Court's duty to make sufficient inquiry, at the time of the motion, as to whether defendant had complied with the terms of the plea agreement. I disagree with the majority that defendant's failure to provide documentation regarding the successful completion of the program excused such inquiry by the court; to so hold improperly shifts the burden of proof from the People to the defendant to prove his compliance with the plea agreement- something we have never done. But even assuming the burden was on the defendant, the facts found in this record seem to support his claim. The Court had in its possession monthly progress reports from Veritas, as well as the October 11th letter, indicating that defendant had successfully completed the program: a determination that Veritas was to make under the plea agreement. What remained for the court to determine was whether OSN had approved of his housing and whether defendant had committed any new crimes. The October 11th Veritas letter confirmed that defendant had been residing with his family. OSN never objected to defendant's housing nor his compliance with any of the other terms of the plea agreement during his ]treatment. Indeed, OSN only objected to his housing on October 23, 2001, two weeks after the return date, and the objection was conditional, i.e. defendant had to find another residence if his girlfriend did not attend treatment meetings.
Further, in my view, while well intentioned, Supreme Court erred in adjourning the matter to determine whether family counseling was needed for defendant, and also erred in imposing family counseling as a condition.

What Must Be Shown For A Defendant To Be Entitled To Specific Performance Of A Plea Agreement?

In People v Jenkins (2008 NY Slip Op 07992 [10/23/08]) the Court of Appeals considered who has to prove what in order for a defendant to be entitled to specific compliance of a plea agreement. Specifically who has has the burden of proof of compliance or non-compliance and what does that burden entail? Under what circumstances can a court add additional terms to a plea agreement? By a 6-1 vote, the Court upheld the addition of a term to the plea agreement in a case in which dissenting Judge Pigott writes that
the People did not contest defendant's claim that he was entitled to have the charges dismissed, let alone establish that he was not, nor did the court make such a finding. Indeed, the People never even argued in Supreme Court, the Appellate Division or to this Court that, as of October 2001, defendant had not complied with the terms and conditions of the plea agreement. Rather, the People have consistently argued that Supreme Court properly exercised its discretion in requiring defendant to participate in further services.

Mr. Jenkins pleaded guilty to a drug charge pursuant to a plea agreement permitting him to avoid incarceration upon (1) completing an 18- to 24-month residential drug treatment program at Veritas Therapeutic Community, a Drug Treatment Alternative to Prison (DTAP) program, and completing its aftercare or live-out treatment; (2) completing vocational training including obtaining a General Equivalency Diploma (GED); (3) securing full-time employment and (4) finding "suitable" housing. The plea agreement additionally required defendant to make every court appearance and not be rearrested. The agremtn was that the prosecutor would join in an application for dismissal of the charge upon Jenkins' complettion of these conditions.
Veritas provided regular updates to the court, culminating in letter, two years after the plea, in which Veritas wrote to the court that defendant has completed the two drug treatments programs, has obtained employment. But Vertias also wrote that Jenkins has "unresolved family issues" that would create further problems, if not addressed.
Jenkins moved for dismissal of the charges, alleging compliance with the conditions. The People did not join in, saying that they had not received documentary proof regarding the educational and employment conditions and requested an adjournment to provide the defendant time to submit documentation. The dissent points out that
the court conducted no inquiry and, presumably, made no determination as to whether defendant had, in fact, met all of the conditions of the plea agreement. Significantly, the People made no claim that defendant had not successfully completed the program. Rather, the People requested two to three weeks to respond and sought defendant's cooperation in providing certain documents. The court held an off-the-record discussion at the bench. What exactly was said during this discussion is unknown, but it caused defense counsel to withdraw the motion. What is known is that the parties talked about the "unresolved family issues" identified in the October 11th Veritas letter and that the court adjourned the matter to look into getting defendant "some other support services." Defendant voiced his objection stating, among other things, that he "completed everything there is to complete in this program.

The majority of the Court holds that having withdrawn the motion
Under these circumstances, where defendant had failed to provide satisfactory proof that he completed all of the conditions of his agreement, the People were entitled to an adjournment and not required to join in the motion to dismiss. Neither was Supreme Court compelled to "turn a blind eye" and dismiss this case in the furtherance of justice. To be sure, Supreme Court could not pass favorably on defendant's Clayton motion without evidentiary support demonstrating that he had complied with the terms of the agreement as CPL 210.40 requires the court to articulate on which factors it relies in dismissing an indictment. Affording the trial court this discretion does not, as the dissent maintains, improperly shift the burden of proof from the People to defendant.

By contrast, Judge Pigott, in dissent writes that
Clearly, it was Supreme Court's duty to make sufficient inquiry, at the time of the motion, as to whether defendant had complied with the terms of the plea agreement. I disagree with the majority that defendant's failure to provide documentation regarding the successful completion of the program excused such inquiry by the court; to so hold improperly shifts the burden of proof from the People to the defendant to prove his compliance with the plea agreement- something we have never done. But even assuming the burden was on the defendant, the facts found in this record seem to support his claim. The Court had in its possession monthly progress reports from Veritas, as well as the October 11th letter, indicating that defendant had successfully completed the program: a determination that Veritas was to make under the plea agreement. What remained for the court to determine was whether OSN had approved of his housing and whether defendant had committed any new crimes. The October 11th Veritas letter confirmed that defendant had been residing with his family. OSN never objected to defendant's housing nor his compliance with any of the other terms of the plea agreement during his ]treatment. Indeed, OSN only objected to his housing on October 23, 2001, two weeks after the return date, and the objection was conditional, i.e. defendant had to find another residence if his girlfriend did not attend treatment meetings.
Further, in my view, while well intentioned, Supreme Court erred in adjourning the matter to determine whether family counseling was needed for defendant, and also erred in imposing family counseling as a condition.

Wednesday, October 22, 2008

Challenge to Facial Sufficiency of Accusatory Instrument Not Forfeited By Guilty Plea

In People v Lucas (2008 NY Slip Op 07948 [10/21/08]) the Court of Appeals rejected a broad reading of its holding in People v Cahill (2 NY3d 14 [2003], in which the Court had held that it was impermissible double counting to use the intent to kill to transform the criminal trespass into a burglary in the first degree and to then use the burglary in the first degree to elevate a murder in the second degree to a murder in the first degree. In Lucas the defendant argued that under Cahill the same killing during an abduction could not be the basis of a kidnapping in the first degree charge and a murder in the first charge based on a murder in furtherance of in the course of a kidnapping in the first degree. The Court rejected this argument, holding that
The problem in Cahill was the double counting of one criminal intent. We said that Cahill's "conviction cannot stand because the burglary carried no intent other than to commit the murder" (id. at 62 [emphasis added]). We explained that, in defining first degree murder — a crime which could make a defendant eligible for the death penalty — the Legislature required murder and "[a]n additional aggravating factor — murder 'plus'" (id. at 64). But where "the very same mens rea — the intent to kill" was used to define both the murder and the aggravating factor, the legislative goal of "narrowing rather than expanding the class of defendants eligible for the death penalty" had not been achieved (id. at 64-65). The gist of Cahill is that where only one criminal intent, the intent to kill, is shown, defendant's crime has not been "aggravated" to first degree murder.

That is not true here. Here, the murder defendant committed and the predicate crime that serves as an aggravation arise from two distinct intents — the intent to kill the victim and the intent to abduct him. The intent to abduct aggravated the crime of murder, and defendant is thus a member of that class of murderers whose crime is significantly worse than ordinary murder — "murder plus." It is of no moment that a factual circumstance other than defendant's intent — in this case, the victim's death — is an element of both the murder and the predicate felony. Cahill is satisfied by the showing of a second criminal intent.

Perhaps of more general interest, and certainly of greater help to defendants, is that the Court reaffirmed that an attack of the facial sufficiency of an accusatory instrument survives a guilty plea. Here, Mr. Lucas argued that the facts stated in the indictment do not constitute the crime of first degree murder. The Court held that
This argument attacks the facial sufficiency of the accusatory instrument, and so is not forfeited by defendant's guilty plea (People v Taylor, 65 NY2d 1, 5 [1985])...

Challenge to Facial Sufficiency of Accusatory Instrument Not Forfeited By Guilty Plea

In People v Lucas (2008 NY Slip Op 07948 [10/21/08]) the Court of Appeals rejected a broad reading of its holding in People v Cahill (2 NY3d 14 [2003], in which the Court had held that it was impermissible double counting to use the intent to kill to transform the criminal trespass into a burglary in the first degree and to then use the burglary in the first degree to elevate a murder in the second degree to a murder in the first degree. In Lucas the defendant argued that under Cahill the same killing during an abduction could not be the basis of a kidnapping in the first degree charge and a murder in the first charge based on a murder in furtherance of in the course of a kidnapping in the first degree. The Court rejected this argument, holding that
The problem in Cahill was the double counting of one criminal intent. We said that Cahill's "conviction cannot stand because the burglary carried no intent other than to commit the murder" (id. at 62 [emphasis added]). We explained that, in defining first degree murder — a crime which could make a defendant eligible for the death penalty — the Legislature required murder and "[a]n additional aggravating factor — murder 'plus'" (id. at 64). But where "the very same mens rea — the intent to kill" was used to define both the murder and the aggravating factor, the legislative goal of "narrowing rather than expanding the class of defendants eligible for the death penalty" had not been achieved (id. at 64-65). The gist of Cahill is that where only one criminal intent, the intent to kill, is shown, defendant's crime has not been "aggravated" to first degree murder.

That is not true here. Here, the murder defendant committed and the predicate crime that serves as an aggravation arise from two distinct intents — the intent to kill the victim and the intent to abduct him. The intent to abduct aggravated the crime of murder, and defendant is thus a member of that class of murderers whose crime is significantly worse than ordinary murder — "murder plus." It is of no moment that a factual circumstance other than defendant's intent — in this case, the victim's death — is an element of both the murder and the predicate felony. Cahill is satisfied by the showing of a second criminal intent.

Perhaps of more general interest, and certainly of greater help to defendants, is that the Court reaffirmed that an attack of the facial sufficiency of an accusatory instrument survives a guilty plea. Here, Mr. Lucas argued that the facts stated in the indictment do not constitute the crime of first degree murder. The Court held that
This argument attacks the facial sufficiency of the accusatory instrument, and so is not forfeited by defendant's guilty plea (People v Taylor, 65 NY2d 1, 5 [1985])...

Friday, October 17, 2008

Important Decision Regarding Subpoenas and Privilege in Criminal Cases

In a lengthy opinion, the Court of Appeals in People v Kozlowski, 2008 NY Slip Op 07759 [10/16/08], upheld the larceny (and related) convictions of the former CEO Kozlowski and CFO Swartz of Tyco and the fines of $35 and $70 million imposed on Swartz and Kozlowski, respectively. Although this decision rejected the defendants' arguments for a reversal and/or vacateur of the fines, it is likely to be cited more frequently by defendants than by prosecutors.

First, the decision contains a very helpful analysis of the standard for enforcing a third-party subpoena duces tecum which was set forth nearly 30 years ago in People v Gissendanner (48 NY2d 543, 550 [1979]). Under Gissendanner, defendants must proffer a good-faith factual predicate sufficient for a court to draw an inference that specifically identified materials are reasonably likely to contain information that has the potential to be both relevant and exculpatory.

What constitutes a sufficient showing under Gissendanner is often in dispute. In this case, the Court made clear that the standard is not to be set too high. In Kozlowski the the People's case centered on the charge that defendants' bonuses were not approved by Tyco's Compensation Committee or the Board of Directors. Defendants maintained that the bonuses were properly approved through the efforts of either of two directors. Among other things, their subpoena seeks specifically identified statements made by the director-witnesses regarding key issues in this case, including, most notably, "Compensation Events."

The Court held that "Although defendants have certainly not made a robust showing under Gissendanner, we disagree with the People's contention that defendants were simply fishing for "general credibility" evidence." The Court's anaylsis, set forth here, is worth keeping in hand, when a prosecutor claims that the defendant has failed to prove what a requested document actually states:

In meeting the burden for production, defendants need not — and indeed could not — show that director-witness statements are "actually" relevant and exculpatory (see Gissendanner, 48 NY2d at 550. Gissendanner does mandate, however, that they point to specific facts demonstrating a reasonable likelihood that such material may be disclosed and that they are not engaged in a fishing expedition. In applying this standard, we must give due regard to the accused's right to a fair trial (Ritchie, 480 US at 56; Nixon, 418 US at 711).
Here, defendants were not engaged in "general discovery," regarding the director-witness statements. Instead, they identified the specific director-interview notes and memorandum that they sought by referring Supreme Court to Tyco's privilege log. Defendants pointed to undisputed facts, arguing that after the directors were made aware of at least some of defendants' questionable activities through the Boies Schiller investigation, they continued to permit Swartz to exercise substantial authority as the CFO of Tyco until September 11, 2002 — the day before he was indicted — and voted to pay him $50 million in severance just one day after the last of the relevant director interviews. On the basis of these facts, defendants asserted that the "director witnesses . . . did not believe Swartz had engaged in any wrongful conduct and only 'changed their tune' after the District Attorney obtained an indictment."

So how did the defendants lose if they met their burden under Gissendanner? The Court held that there was another hurdle which was not met -- the documents were privileged as trial preparation materials (which may be disclosed "only upon a showing that the party seeking discovery has a substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means") (CPLR 3101 [c], [d] [2]). The Court held that

Although we agree with defendants that the director-witness statements are trial preparation materials and not absolutely privileged, enforcement of their subpoena was directed to the trial court's discretion (citations omitted). In making its discretionary determination that defendants did not establish an inability to "obtain the substantial equivalent" of the facts contained in the director witness interview notes without "undue hardship" (see CPLR 3101 [d] [2], Weinstein-Korn-Miller, NY Civ Prac § 3101.55), Supreme Court relied upon defendants' failure to "explain[] why the defense could not have sought to conduct its own interviews of these witnesses at an earlier time." We cannot say that this conclusion represents an abuse of the trial court's discretion. Defendants made no effort to show any "undue hardship" that would have prevented them from securing their own "substantial[ly] equivalent" interviews with the director-witnesses (see CPLR 3101 [d] [2]). As Tyco pointed out in its reply submission on its motion to quash, defendants "have access to the same witnesses as Tyco does."...(see Hickman v Taylor, 329 US 495, 513 [1947] [production of attorney's account of witness statements is justified only in "rare" cases and is not appropriate when potential for "direct interviews with witnesses themselves" is possible]

The Court also rejected the argument that the privilege of specific requested documents covering trial preparation materials had been waived by the disclosure of other historical privileged documents created earlier.

The Court did not address whether and when the constitutional right to a fair trial limits a trial court’s discretion to apply a statutory privilege so as to preclude a defendant from receiving otherwise subpoenable materials (see, e.g. Davis v Alaska, 415 US 308 [1974]; People v Davis, 86 AD2d 856 [1982]).

Although this decision hurt Swartz and Kozlowski, it is likely to be helpful to more defendants than prosecutors, since it is more common for defense attorneys to attempt to assert the privilege, than prosecutors.

Important Decision Regarding Subpoenas and Privilege in Criminal Cases

In a lengthy opinion, the Court of Appeals in People v Kozlowski, 2008 NY Slip Op 07759 [10/16/08], upheld the larceny (and related) convictions of the former CEO Kozlowski and CFO Swartz of Tyco and the fines of $35 and $70 million imposed on Swartz and Kozlowski, respectively. Although this decision rejected the defendants' arguments for a reversal and/or vacateur of the fines, it is likely to be cited more frequently by defendants than by prosecutors.

First, the decision contains a very helpful analysis of the standard for enforcing a third-party subpoena duces tecum which was set forth nearly 30 years ago in People v Gissendanner (48 NY2d 543, 550 [1979]). Under Gissendanner, defendants must proffer a good-faith factual predicate sufficient for a court to draw an inference that specifically identified materials are reasonably likely to contain information that has the potential to be both relevant and exculpatory.

What constitutes a sufficient showing under Gissendanner is often in dispute. In this case, the Court made clear that the standard is not to be set too high. In Kozlowski the the People's case centered on the charge that defendants' bonuses were not approved by Tyco's Compensation Committee or the Board of Directors. Defendants maintained that the bonuses were properly approved through the efforts of either of two directors. Among other things, their subpoena seeks specifically identified statements made by the director-witnesses regarding key issues in this case, including, most notably, "Compensation Events."

The Court held that "Although defendants have certainly not made a robust showing under Gissendanner, we disagree with the People's contention that defendants were simply fishing for "general credibility" evidence." The Court's anaylsis, set forth here, is worth keeping in hand, when a prosecutor claims that the defendant has failed to prove what a requested document actually states:

In meeting the burden for production, defendants need not — and indeed could not — show that director-witness statements are "actually" relevant and exculpatory (see Gissendanner, 48 NY2d at 550. Gissendanner does mandate, however, that they point to specific facts demonstrating a reasonable likelihood that such material may be disclosed and that they are not engaged in a fishing expedition. In applying this standard, we must give due regard to the accused's right to a fair trial (Ritchie, 480 US at 56; Nixon, 418 US at 711).
Here, defendants were not engaged in "general discovery," regarding the director-witness statements. Instead, they identified the specific director-interview notes and memorandum that they sought by referring Supreme Court to Tyco's privilege log. Defendants pointed to undisputed facts, arguing that after the directors were made aware of at least some of defendants' questionable activities through the Boies Schiller investigation, they continued to permit Swartz to exercise substantial authority as the CFO of Tyco until September 11, 2002 — the day before he was indicted — and voted to pay him $50 million in severance just one day after the last of the relevant director interviews. On the basis of these facts, defendants asserted that the "director witnesses . . . did not believe Swartz had engaged in any wrongful conduct and only 'changed their tune' after the District Attorney obtained an indictment."

So how did the defendants lose if they met their burden under Gissendanner? The Court held that there was another hurdle which was not met -- the documents were privileged as trial preparation materials (which may be disclosed "only upon a showing that the party seeking discovery has a substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means") (CPLR 3101 [c], [d] [2]). The Court held that

Although we agree with defendants that the director-witness statements are trial preparation materials and not absolutely privileged, enforcement of their subpoena was directed to the trial court's discretion (citations omitted). In making its discretionary determination that defendants did not establish an inability to "obtain the substantial equivalent" of the facts contained in the director witness interview notes without "undue hardship" (see CPLR 3101 [d] [2], Weinstein-Korn-Miller, NY Civ Prac § 3101.55), Supreme Court relied upon defendants' failure to "explain[] why the defense could not have sought to conduct its own interviews of these witnesses at an earlier time." We cannot say that this conclusion represents an abuse of the trial court's discretion. Defendants made no effort to show any "undue hardship" that would have prevented them from securing their own "substantial[ly] equivalent" interviews with the director-witnesses (see CPLR 3101 [d] [2]). As Tyco pointed out in its reply submission on its motion to quash, defendants "have access to the same witnesses as Tyco does."...(see Hickman v Taylor, 329 US 495, 513 [1947] [production of attorney's account of witness statements is justified only in "rare" cases and is not appropriate when potential for "direct interviews with witnesses themselves" is possible]

The Court also rejected the argument that the privilege of specific requested documents covering trial preparation materials had been waived by the disclosure of other historical privileged documents created earlier.

The Court did not address whether and when the constitutional right to a fair trial limits a trial court’s discretion to apply a statutory privilege so as to preclude a defendant from receiving otherwise subpoenable materials (see, e.g. Davis v Alaska, 415 US 308 [1974]; People v Davis, 86 AD2d 856 [1982]).

Although this decision hurt Swartz and Kozlowski, it is likely to be helpful to more defendants than prosecutors, since it is more common for defense attorneys to attempt to assert the privilege, than prosecutors.

Friday, October 10, 2008

Rochester Curfew Ordinance Invalid

By a 3-2 vote , the Fourth Department in Anonymous v City of Rochester (2008 NY Slip Op 07724 [10/1008]) held that the Rochester Ordinance which imposed a curfew on persons under seventeen and subjected them to arrest for violation of the curfew conflicted with both New York statutes and the constitution and is, thus, invalid. (Great job by Michael Burger and David Ahl working pro bono).

Attorneys representing person who were stopped pursuant to the curfew ordinance and then charged with other crimes, have a basis to challenge the arrests and the acquisition of evidence regarding the other crimes.

Rochester Curfew Ordinance Invalid

By a 3-2 vote , the Fourth Department in Anonymous v City of Rochester (2008 NY Slip Op 07724 [10/1008]) held that the Rochester Ordinance which imposed a curfew on persons under seventeen and subjected them to arrest for violation of the curfew conflicted with both New York statutes and the constitution and is, thus, invalid. (Great job by Michael Burger and David Ahl working pro bono).

Attorneys representing person who were stopped pursuant to the curfew ordinance and then charged with other crimes, have a basis to challenge the arrests and the acquisition of evidence regarding the other crimes.

Child Sexual Abuse Accomodation Syndrome Testimony Admissible Without Frye Hearing

In People v Bassett (2008 NY Slip Op 07729 [10/3/08]) the Fourth Department held that there was no error in allowing the People to present the testimony of a witness concerning child sexual abuse accommodation syndrome (CSAAS) without first conducting a Frye hearing.
With respect to the merits of defendant's contention that a Frye hearing was required, it is well settled that expert testimony concerning CSAAS is admissible to assist the jury in understanding the unusual conduct of victims of child sexual abuse provided that, as here, the testimony is general in nature and does "not attempt to impermissibly prove that the charged crimes occurred" (People v Carroll, 95 NY2d 375, 387; see People v Gillard, 7 AD3d 540, lv denied 3 NY3d 659; People v Doherty, 305 AD2d 867, 868, lv denied 100 NY2d 580; People v Miles, 294 AD2d 930, lv denied 98 NY2d 678), and a "Frye hearing was unnecessary [in this case] because the expert's testimony did not involve novel scientific evidence" (People v Middlebrooks, 300 AD2d 1142, 1143, lv denied 99 NY2d 630).

Perhaps a reader can inform us how CSAAS became so clearly established that admissibility of testimony about is beyond question. Where are the peer reviewed studies?
The Court also rejected defendant's contention that defense counsel was ineffective in failing to conduct an adequate cross-examination of the People's expert witness and to challenge his qualifications or familiarity with CSAAS.

Child Sexual Abuse Accomodation Syndrome Testimony Admissible Without Frye Hearing

In People v Bassett (2008 NY Slip Op 07729 [10/3/08]) the Fourth Department held that there was no error in allowing the People to present the testimony of a witness concerning child sexual abuse accommodation syndrome (CSAAS) without first conducting a Frye hearing.
With respect to the merits of defendant's contention that a Frye hearing was required, it is well settled that expert testimony concerning CSAAS is admissible to assist the jury in understanding the unusual conduct of victims of child sexual abuse provided that, as here, the testimony is general in nature and does "not attempt to impermissibly prove that the charged crimes occurred" (People v Carroll, 95 NY2d 375, 387; see People v Gillard, 7 AD3d 540, lv denied 3 NY3d 659; People v Doherty, 305 AD2d 867, 868, lv denied 100 NY2d 580; People v Miles, 294 AD2d 930, lv denied 98 NY2d 678), and a "Frye hearing was unnecessary [in this case] because the expert's testimony did not involve novel scientific evidence" (People v Middlebrooks, 300 AD2d 1142, 1143, lv denied 99 NY2d 630).

Perhaps a reader can inform us how CSAAS became so clearly established that admissibility of testimony about is beyond question. Where are the peer reviewed studies?
The Court also rejected defendant's contention that defense counsel was ineffective in failing to conduct an adequate cross-examination of the People's expert witness and to challenge his qualifications or familiarity with CSAAS.

What Constitutes an Unequivocal Assertion of the Right to Counsel?

In New York the unequivocal assertion of the right to counsel acts to preclude any further questioning unless there is a waiver of the right to silence in the presence of counsel. But what constitutes such an unequivocal assertion? That was the issue in People v Edwards (2008 NY Slip Op 07474 [10/3/08]. When two detectives sought to speak to Mr. Edwards he informed them that his union representative and a friend who is a Sheriff's Deputy advised him not to speak to the police. When the police responded that those people were not attorneys, Mr. Edwards replied that he did not have an attorney and could not afford one. Was that his way of saying that he wanted an attorney and was relying on his friends who most knew the law solely because he could not afford one? The trial court said no, and the Fourth Department held that the record supports the court's determination (the Court wrote that on this issue one should see generally People v Glover, 87 NY2d 838; People v Fridman, 71 NY2d 845; People v Hicks, 69 NY2d 969, rearg denied 70 NY2d 796; People v Dehmler, 188 AD2d 1056, lv denied 81 NY2d 1013).
The Court did not cite People v Porter (9 NY3d 966 [2007]), in which the Court of Appeals, last year, overturned the Appellate Division, Fourth Department's decision, on whether the circumstances established an unequivocal invocation of the defendant's right to counsel. The Court in Porter emphasized that in deciding on whether request is unequivocal, the court should look at the clear meaning of the statement and held that the defendant's words "I think I need an attorney", coupled with an interviewing officer's notation that defendant was "asking for an attorney" demonstrated an unequivocal invocation of defendant's right to counsel.
The Edwards decision does not explain why the statments of Mr. Edwards fell short of the standard applied in Porter.

What Constitutes an Unequivocal Assertion of the Right to Counsel?

In New York the unequivocal assertion of the right to counsel acts to preclude any further questioning unless there is a waiver of the right to silence in the presence of counsel. But what constitutes such an unequivocal assertion? That was the issue in People v Edwards (2008 NY Slip Op 07474 [10/3/08]. When two detectives sought to speak to Mr. Edwards he informed them that his union representative and a friend who is a Sheriff's Deputy advised him not to speak to the police. When the police responded that those people were not attorneys, Mr. Edwards replied that he did not have an attorney and could not afford one. Was that his way of saying that he wanted an attorney and was relying on his friends who most knew the law solely because he could not afford one? The trial court said no, and the Fourth Department held that the record supports the court's determination (the Court wrote that on this issue one should see generally People v Glover, 87 NY2d 838; People v Fridman, 71 NY2d 845; People v Hicks, 69 NY2d 969, rearg denied 70 NY2d 796; People v Dehmler, 188 AD2d 1056, lv denied 81 NY2d 1013).
The Court did not cite People v Porter (9 NY3d 966 [2007]), in which the Court of Appeals, last year, overturned the Appellate Division, Fourth Department's decision, on whether the circumstances established an unequivocal invocation of the defendant's right to counsel. The Court in Porter emphasized that in deciding on whether request is unequivocal, the court should look at the clear meaning of the statement and held that the defendant's words "I think I need an attorney", coupled with an interviewing officer's notation that defendant was "asking for an attorney" demonstrated an unequivocal invocation of defendant's right to counsel.
The Edwards decision does not explain why the statments of Mr. Edwards fell short of the standard applied in Porter.

Check the Certificate of Conviction -- It is Often Wrong

Since Corrections officials must follow the terms of a certificate of conviction, it is critical that appeals attorneys review the certificate of conviction and determine if it accurately reflects the appellant's convictions and sentences. In October, 2008 the Fourth Department noted errors in the certificates of conviction in seven different cases.
In People v Wynn (2008 NY Slip Op 07432 [10/3/08]) the certificate had the wrong predicate status.
In People v Switzer (2008 NY Slip Op 07452 [10/3/08]) the certificate of conviction provided
that a term of imprisonment of 1½ to 4½ years was imposed on that count, which is a legal sentence, but the sentencing minutes establish that the court imposed a term of imprisonment of 1½ to 4 years, which is an illegal sentence.
The certificate also incorrectly stated that the conviction followed a jury trial. The case was remanded for re-sentencing.
In People v Sweney (2008 NY Slip Op 07393 [4th Dept]) the certificate named the wrong judge.
In People v Mosley (2008 NY Slip Op 07423 [10/3/08]) the certificate incorrectly listed the consecutive sentences imposed.
In both People v Martin (2008 NY Slip Op 07281 [10/3/08]) and People v Dickerson(2008 NY Slip Op 07310 [10/3/08]) the certificate inaccurately reflected the length of the sentence imposed.
Finally, in People v Bassett (2008 NY Slip Op 07729 [10/3/08]) the certificate listed a higher level offense than that for which the defendant had been convicted.
It is clear that the Court pays attention to certificates of conviction. Counsel should do no less.

Check the Certificate of Conviction -- It is Often Wrong

Since Corrections officials must follow the terms of a certificate of conviction, it is critical that appeals attorneys review the certificate of conviction and determine if it accurately reflects the appellant's convictions and sentences. In October, 2008 the Fourth Department noted errors in the certificates of conviction in seven different cases.
In People v Wynn (2008 NY Slip Op 07432 [10/3/08]) the certificate had the wrong predicate status.
In People v Switzer (2008 NY Slip Op 07452 [10/3/08]) the certificate of conviction provided
that a term of imprisonment of 1½ to 4½ years was imposed on that count, which is a legal sentence, but the sentencing minutes establish that the court imposed a term of imprisonment of 1½ to 4 years, which is an illegal sentence.
The certificate also incorrectly stated that the conviction followed a jury trial. The case was remanded for re-sentencing.
In People v Sweney (2008 NY Slip Op 07393 [4th Dept]) the certificate named the wrong judge.
In People v Mosley (2008 NY Slip Op 07423 [10/3/08]) the certificate incorrectly listed the consecutive sentences imposed.
In both People v Martin (2008 NY Slip Op 07281 [10/3/08]) and People v Dickerson(2008 NY Slip Op 07310 [10/3/08]) the certificate inaccurately reflected the length of the sentence imposed.
Finally, in People v Bassett (2008 NY Slip Op 07729 [10/3/08]) the certificate listed a higher level offense than that for which the defendant had been convicted.
It is clear that the Court pays attention to certificates of conviction. Counsel should do no less.

An Issue Likely to Result in Appellate Relief, Even When Unpreserved

One issue that the Fourth Department has repeatedly reversed on, even when unreserved is the erroneous setting of the expiration date of an order of protection. For example, in February 2008, we noted that the Court in People v Smith (2008 NY Slip Op 00904 [4th Dept 2008)held that
[W]e agree with defendant that the court erred in calculating the expiration date of the order of protection without taking into account the jail time credit to which she is entitled (see People v Clinkscales, 35 AD3d 1266, 1267; People v Hare, 27 AD3d 1171, 1172, lv denied 6 NY3d 892, 894, 898). Although defendant failed to preserve that contention for our review, we exercise our power to review that contention as a matter of discretion in the interest of justice (see People v Fomby, 42 AD3d 894, 895; People v Valdez, 41 AD3d 1255, lv denied 9 NY3d 882).

Last week, in People v Cambridge (2008 NY Slip Op 07435 [10/3/08]) the Court went a step further and corrected such an unpreserved error, in the interest of justice, depsite there being a valid waiver of appeal.

An Issue Likely to Result in Appellate Relief, Even When Unpreserved

One issue that the Fourth Department has repeatedly reversed on, even when unreserved is the erroneous setting of the expiration date of an order of protection. For example, in February 2008, we noted that the Court in People v Smith (2008 NY Slip Op 00904 [4th Dept 2008)held that
[W]e agree with defendant that the court erred in calculating the expiration date of the order of protection without taking into account the jail time credit to which she is entitled (see People v Clinkscales, 35 AD3d 1266, 1267; People v Hare, 27 AD3d 1171, 1172, lv denied 6 NY3d 892, 894, 898). Although defendant failed to preserve that contention for our review, we exercise our power to review that contention as a matter of discretion in the interest of justice (see People v Fomby, 42 AD3d 894, 895; People v Valdez, 41 AD3d 1255, lv denied 9 NY3d 882).

Last week, in People v Cambridge (2008 NY Slip Op 07435 [10/3/08]) the Court went a step further and corrected such an unpreserved error, in the interest of justice, depsite there being a valid waiver of appeal.