Wednesday, September 24, 2008

AD4th: Decisions Issued 12/21/2007

People v Gause [2007 NY Slip Op 10193] [available here]

Mr. Gause was charged with intentional and depraved indifference murder. County Court instructed the jury to consider either count first and, if it reached a verdict of guilty on that count, it was not to consider the remaining count. The jury considered [the depraved indifference count first, found defendant guilty, and did not reach the intentional murder count. Although the issue was not preserved, the Court exercised its interest of justice jurisdiction and held that the

defendant's conduct in repeatedly striking the victim's head with a metal pipe after the victim was shot in the head, neck and chest by an accomplice does not constitute a depraved indifference murder (see generally People v Suarez, 6 NY3d 202, 212-213; People v Payne, 3 NY3d 266, 271-272, rearg denied 3 NY3d 767; People v Dickerson, 42 AD3d 228).


However, the court ruled that

Because the jury never considered the intentional murder count, we agree with the People that double jeopardy does not preclude a new trial on that count (see People v Charles, 78 NY2d 1044, 1047; People v Hernandez, 41 AD3d 358, 360; People v Suarez, 40 AD3d 143, 145-[*2]149, lv dismissed 8 NY3d 991), and that a new trial on that count is the appropriate remedy in this case.


The Court also noted

that the certificate of conviction incorrectly reflects that defendant was acquitted of intentional murder in the second degree, and it must therefore be amended to reflect that the jury did not address that count....


People v Barry, [2007 NY Slip Op 10203] [available here]

Where the People presented evidence that defendant took the medication from the pharmacy over a period of 10 months for her personal use, to treat migraine headaches, and the issue in the case was whether these were separate petit larcenies or one ongoing scheme of grand larceny, it was error for the court to refuse to charge the jury that the People were required to prove that the defendant had a single, ongoing intent to steal the medication in order to find her guilty of grand larceny in the third degree.

Defendant is correct that, in order to find her guilty of separate acts of theft in a single count of grand larceny, the jury had to find that she had a "single intent, carried out in successive stages" (People v Rossi, 5 NY2d 396, 401; see People v Tighe, 2 AD3d 1364, 1365, lv denied 2 NY3d 747; People v Fayette, 239 AD2d 696, 697, lv denied 90 NY2d 904)... The court's failure to instruct the jury with respect to that distinction prevented the jury from properly evaluating the evidence.


People v Ellison, [2007 NY Slip Op 10204] [available here]

The fact that the police might possess a search warrant which, in fact authorizes the police to conduct a search of a particular apartment cannot render the search of that apartment lawful when none of the police conducting the search were aware of the content of the warrant.

[T]he court should have suppressed the physical evidence seized by the police during the search of his apartment, on the ground that the officers at the apartment began to search the premises without the requisite knowledge of the contents of the warrant (see People v Okun, 135 AD2d 1064, 1065-1066; People v Carson, 99 AD2d 664, 665). Although the officers were permitted to enter defendant's residence once they learned that the warrant was issued and was en route (see People v Mahoney, 58 NY2d 475, 479), here they exceeded their authority by beginning to search defendant's apartment before the undercover officer arrived at the apartment with the search warrant (see Carson, 99 AD2d at 665). Contrary to the People's contention, there is no evidence that the supervising sergeant was aware of the actual contents of the warrant after it was signed by the issuing judge. The fact that the judge signed the warrant as presented and placed no limitations on it cannot in hindsight be used to support the People's contention that the officers at defendant's apartment were aware of the contents of the warrant as issued by the judge. Further, the fact that the warrant may have been what the People characterize as 'a routine search warrant application" does not provide the police with the requisite knowledge of its contents in order to begin a search before having the warrant in hand.'


People v Mc Coy, [2007 NY Slip Op 10208][available here]

Despite a voluniminous motion setting forth data and expert statistical analysis, as well as anectotal affidvits of attorneys, showing that African Americans have been repeatedly and consistently significantly underrepresented in the jury poolin Monroe County the Court again rejected a contention of a defendant that the court erred in denying his motion to dismiss the jury pool on the ground that it did not reflect a fair cross section of the community on the ground that he had

failed to set forth sufficient facts demonstrating a systematic exclusion of African-Americans from the jury pool" (People v Owens, 39 AD3d 1260, 1260, lv denied 9 NY3d 849; see People v Cotton, 38 AD3d 1189, lv denied 8 NY3d 983.


It appears that the Court is applying a requirement that there be a showing of purposefulness or intent to under-represent African Americans.

People v Powless
[2007 NY Slip Op 10209], [available here]

The Court ruled for the defendant, and rejected the argument of the People based on People v Louree, 8 NY3d 541) in permitting a CPL 440 motion to vacate a plea due to failure of the court to advise that he was also being sentenced to post-release supervision.

County Court properly vacated the judgment on the ground that defendant was not advised before entering his plea that he would be subject to a five-year period of postrelease supervision (see § 70.45; People v Catu, 4 NY3d 242, 244-245). Contrary to the People's contention, defendant's motion is not barred by CPL 440.10 (2) (c) inasmuch as the court did not explicitly impose postrelease supervision at the time of sentencing, and defendant did not become aware of its imposition until after his direct appeal from the judgment of conviction was decided. Thus, defendant did not "unjustifiabl[y]" fail to raise the issue on his direct appeal (id.; cf. , 545-546).


the Court also refused to consider the People's contention, raised for the first time at oral argument of this appeal that it should apply the reasoning of the Second Circuit Court of Appeals in Earley v Murray (451 F3d 71, reh denied 462 F3d 147) to this case.

We do not address that contention, in the interest of fairness to defendant. That case was decided approximately six months before the People submitted their brief on appeal, which contained no reference to that case, nor did they submit a supplemental brief addressing the applicability of that case prior to oral argument of this appeal.

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