Wednesday, September 24, 2008

AD4th: Decisions Issued 11/23/2007

People v Cruz, 2007 NY Slip Op 09282 [Available Here]

At defendant’s first trial, which ended in a mistrial, defense counsel unsuccessfully raised a Bruton violation objection (see Bruton v United States, 391 US 123, 135-137) to the admission of prejudicial statements by a non-testifying co-defendant. At defendant’s second trial these statements were admitted without objection. On appeal the defendant argued that it was error to allow the admission of these statements. The Court agreed and reversed on both Bruton and Crawford grounds, despite the absence of objection, as a matter of discretion in the interest of justice.

A defendant's right of confrontation is violated where the confession of a nontestifying codefendant that facially incriminates the defendant is introduced at their joint trial (see Bruton v United States, 391 US 123, 135-137; see also Richardson v Marsh, 481 US 200, 207). "When an extrajudicial statement by one defendant contains incriminating references to another defendant, admission of that statement upon their joint trial deprives the nonconfessing defendant of his right to confront the witness against him unless that witness also testified at the joint trial" (People v Wheeler, 62 NY2d 867, 869, citing Bruton, 391 US 123). "If the confession, however, can be effectively redacted so that the jury would not interpret its admissions as incriminating the nonconfessing defendant, it may be utilized at the joint trial" (id.). Here, although defendant was implicated by use of a neutral pronoun rather than by name, the evidence before the jury established that both victims saw three robbers and one of the victims identified the robbers by name. Under the circumstances, there is no possibility that the incriminating references "would not necessarily be viewed by the jury as referring to defendant" (id.).....
Defendant further contends that reversal is required based on a Crawford violation. We agree. The out-of-court statements of the codefendant were testimonial in nature, and they therefore were inadmissible because the codefendant was not unavailable and defendant had no prior opportunity to cross-examine him (see Davis v Washington, ___ US ___, ___, 126 S Ct 2266, 2273-2274; People v Kyser, 26 AD3d 839).

People v Johnson, 2007 NY Slip Op 09273 [Available Here]

In an apparent issue of first impression, the Court holds that children depicted in pornographic photographs which were downloaded by the defendant who pled guilty to Attempted Promotion of a Sexual Performance by a Child are victims for purposes of the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.) statute, even where the defendant otherwise has no contact with the children. The SORA statute itself does not define the term victim. Thus, the defendant could be assessed risk assessment points based on the age and his lack of relationship with the children depicted in the photographs.

People v Givans, 2007 NY Slip Op 09281 [Available Here]

First, the Court reversed and ordered a new trial on the conviction on counts of criminal possession of a controlled substance in the second degree and conspiracy in the second degree because of the failure to grant challenges for cause regarding prospective jurors who stated that they would favor law enforcement and did not subsequently give unequivocal assurances that they were able to reach a verdict based entirely upon the court's instructions on the law.

Then, the Court addressed defendant's remaining contentions in the interest of judicial economy, and held that there had been three evidentiary errors at the defendant’s trial

We agree with defendant that the court erred in admitting a text message from a cellular telephone in evidence, inasmuch as the People failed to establish that the text message was ever read by defendant, or even retrieved by him, and they failed to establish the authenticity or reliability of the text message (see People v Johnson, 250 AD2d 922, 928-929, affd 93 NY2d 254; see also Prince, Richardson on Evidence § 4-203 [Farrell 11th ed]).

Further, the court erred in permitting the jury to access the entire contents of the cellular telephone and to view materials that were not admitted in evidence at trial (see People v Vizzini, 183 AD2d 302, 307-308; cf. People v Stanley, 87 NY2d 1000).

Finally, the prejudicial effect of testimony concerning uncharged crimes committed by defendant, i.e., his past drug sales, as well as his alleged familiarity with task force vehicles and his alleged threat to kidnap and feed drugs to the District Attorney's children, far outweighed the probative value of that testimony, and the court therefore erred in admitting that testimony (see generally People v Alvino, 71 NY2d 233, 241-242; People v Ventimiglia, 52 NY2d 350, 359-360; People v Molineux, 168 NY 264, 291-294).

(Congratulations to Linda Campbell who argued this appeal and persuaded the Court to find four errors in one case.)

People v Collins, 2007 NY Slip Op 09289 [Available Here]

County Court advised the defendant that he was precluded from raising the defense of intoxication to a charge of depraved indifference murder. That was true under the existing law at the time of defendant’s guilty plea (see generally People v Register, 60 NY2d 270, 275-276, cert denied 466 US 953; People v Hilligas, 291 AD2d 926, lv denied 98 NY2d 651). However, the law has since changed (see generally People v Feingold, 7 NY3d 288, 294; People v Coon, 34 AD3d 869, 870).

On appeal, defendant contends that he will be deprived of due process if the Court did not apply the current law in reviewing the factual sufficiency of his plea allocution, in view of his presently viable defense of intoxication. Although acknowledging that the defendant is correct that he is entitled to the application of current principles of substantive law upon his direct appeal from the judgment of conviction (see generally Policano v Herbert, 7 NY3d 588, 603-604), the Court rejected that contention.

Nevertheless, even assuming, arguendo, that we agree with the Third Department that intoxication is a defense to depraved indifference murder (see Coon, 34 AD3d at 870), we conclude that reversal is not required. The challenge by defendant to the factual sufficiency of the plea allocution does not survive his valid waiver of the right to appeal (see People v Donahue, 21 AD3d 1359, lv denied 6 NY3d 775; People v Spivey, 9 AD3d 886, lv denied 3 NY3d 712; People v DeJesus, 248 AD2d 1023, lv denied 92 NY2d 878). In any event, defendant failed to preserve that challenge for our review by moving to withdraw his guilty plea or to vacate the judgment of conviction (see People v Emm, 23 AD3d 983, 984, lv denied 6 NY3d 775; People v Perry, 21 AD3d 1352, lv denied 5 NY3d 884; see generally People v Lopez, 71 NY2d 662, 665), and nothing in the plea allocution alerted the court that defendant had a viable defense of intoxication, thereby placing the court under a duty, prior to accepting the plea, of inquiring into whether defendant was fully aware of and voluntarily waiving any such defense (see Lopez, 71 NY2d at 666). Defendant likewise failed to preserve for our review his contention that his plea was not voluntarily, knowingly, and intelligently entered (see DeJesus, 248 AD2d 1023) and, in any event, that contention lacks merit.

Considering that the Court advised the defendant that intoxication is not a defense to the charge, it is hardly surprising that the plea allocution did not alert the court that defendant had a viable defense of intoxication. Rather, the Court's comments effectively dissuaded the making of any such record.

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