Wednesday, September 24, 2008

Significant AD 4th Department Decisions Issued February 8, 2008

1. People v Prior 2008 NY Slip Op 01189 [2/8/08]

Contrary to defendant's contention, County Court did not err in admitting evidence that defendant was on parole at the time of the crime, had stopped reporting to his parole officer and had violated parole by leaving New York State immediately thereafter. That evidence was relevant in establishing "defendant's consciousness of guilt, and the probative value of the evidence outweighed its prejudicial effect" (People v Topolski, 28 AD3d 1159, 1160, lv dismissed 6 NY3d 898, lv denied 7 NY3d 764, 795; see People v Wynder, 41 AD3d 209, lv denied 9 NY3d 884; People v Jones, 276 AD2d 292, lv denied 95 NY2d 965).

2. People v Foss 2008 NY Slip Op 01190 [2/8/08]

Where the defendant was convicted of two counts of sexual abuse in the first degree (Penal Law § 130.65 [3]) the Court held that
the imposition of consecutive sentences with respect to each count renders the sentence unduly harsh and severe, and we therefore modify the judgment as a matter of discretion in the interest of justice by directing that the sentences shall run concurrently with respect to each other (see CPL 470.15 [6] [b]; see generally People v Bailey, 17 AD3d 1022, 1023, lv denied 5 NY3d 803).

3. People v Quick 2008 NY Slip Op 01194 [2/8/08]
The People appeal from an order granting defendant's motion to dismiss the indictment pursuant to CPL 210.20 (1) (a) and 210.35 (4). We agree with the People that, because they provided defendant with the requisite notice that the matter was to be presented to a grand jury and defendant failed to notify them of his intent to testify (see CPL 190.50 [5] [a]), Supreme Court erred in granting the motion. Defendant, represented by an assigned attorney from the Public Defender's office, was arraigned on the underlying felony complaint on November 6, 2004. At that arraignment, defendant was furnished with a written notice of presentment to a Monroe County grand jury on November 9, 2004. On November 8, 2004, the Public Defender's office discovered a conflict of interest in its representation of defendant, and the following day another attorney was assigned to represent defendant. That attorney did not notify the People of defendant's intent to testify before the grand jury.
We conclude that defendant had sufficient time to consult with defense counsel prior to the filing of the indictment and, because neither defendant nor defense counsel notified the People that defendant intended to testify before the grand jury, defendant was not deprived of the right to testify (see People v Johnson, ___ AD3d ___ [Dec. 21, 2007]; see also People v Lyons, 40 AD3d 1121, 1122-1123, lv
denied 9 NY3d 878; cf. People v Evans, 79 NY2d 407, 415).

4. People v Arguinzoni 2008 NY Slip Op 01204 [2/8/08]
The court properly denied defendant's challenge for cause to a prospective juror based on the prospective juror's inability to read and write. The Judiciary Law requires in relevant part that a juror must "[b]e able to understand and communicate in the English language" (Judiciary Law § 510 [4]; see CPL 270.20 [1] [a]), but there is no requirement for reading and writing skills…Defendant further contends that the court erred in allowing other jurors to author notes for the prospective juror in question, who was designated as the jury foreperson pursuant to CPL 270.15 (3). We reject that contention. The record establishes that the notes were initialed by the foreperson, and it cannot be said that defendant was prejudiced by that procedure inasmuch as "the law recognizes no special function for a foreperson other than acting as the jury's spokesperson" (People v Burgess, 280 AD2d 264, 265, lv denied 96 NY2d 798).

5. People v Dean 2008 NY Slip Op 01209 [2/8/08]
[D]efendant [contention]... that he was denied effective assistance of counsel…does not survive his guilty plea or his waiver of the right to appeal because there was no showing " that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance' " (People v Leonard, 37 AD3d 1148, lv denied 8 NY3d 947).

6. People v Mc Cloud 2008 NY Slip Op 01213 [2/8/08]
The Court affirmed the dismissal of two murder charges on constitutional speedy trial grounds where
Defendant was arrested on February 6, 2002 and indicted on July 11, 2002 for a murder that occurred on December 29, 2001. On September 25, 2002, the only eyewitness who was able to identify defendant was murdered by a person known to be one of defendant's associates. On March 10, 2003, after a Geraci hearing, the court determined that the People failed to establish by clear and convincing evidence that defendant was "involved in procuring the witness's unavailability for live testimony" (People v Geraci, 85 NY2d 359, 368), and it therefore refused to permit the People to use the grand jury testimony of the witness in their case-in-chief against defendant. Although the court released defendant on his own recognizance at that time because the People advised the court that they were unable to proceed to trial, defendant was a furloughed prisoner at the time of his arrest in February 2002, and he therefore remained imprisoned on that unrelated charge. On August 12, 2003, the court denied defendant's motion to dismiss the indictment on speedy trial grounds. Defendant thereafter renewed his motion, and the court granted that motion on January 20, 2004, after the People again advised the court that they were unable to proceed to trial.

The Court explained that
It is well established that, in determining whether a defendant has been denied his or her constitutional right to a speedy trial, "the trial court must engage in a sensitive weighing process of the diversified factors present in the particular case" (Taranovich, 37 NY2d at 445). Although the delay in prosecution here was the result of the murder of the eyewitness and defendant was not incarcerated solely on the basis of the murder charges (see generally id.), the court properly determined that the People were no closer to obtaining additional evidence in January 2004 than they had been in March 2003. The People asserted that they "might" be able to obtain information from defendant's associates concerning the motive of the murder of the eyewitness in order to establish defendant's involvement with that murder, thereby allowing them to use the grand jury testimony of the eyewitness in their case against defendant. Nevertheless, the court properly noted that the People thus far had been unable to obtain the cooperation of defendant's associates and that they were unable to demonstrate any further efforts to obtain that cooperation.

7. People v Riley 2008 NY Slip Op 01214 [2/8/08]
The court properly allowed the People to present evidence of uncharged sexual offenses against the victim in order to establish the element of forcible compulsion with respect to the count of rape in the first degree (see People v Gainey, 4 AD3d 851, lv denied 2 NY3d 799). The court also properly allowed defendant's wife to testify with respect to her observations of defendant's body. Those observations did not concern "knowledge derived from the observance of disclosive acts done in [her] presence or view" (People v Daghita, 299 NY 194, 199) but, rather, they were merely observations concerning defendant's physical characteristics (cf. id. at 198-199; People v Marinaccio, 15 AD2d 932, 933). Finally, the court did not err in allowing the People to cross-examine defendant on the issue whether he rented or purchased adult videos. Defendant opened the door to such questioning when he testified on direct examination that he once possessed an adult video given to him by a coworker (see generally People v Van Kuren, 1 AD3d 960, lv denied 1 NY3d 635), and the People merely sought to elicit testimony that defendant had a membership card for an X-rated video store.

8. People v O'Keefe 2008 NY Slip Op 01228 [2/8/08]
The record establishes that County Court did not advise defendant at the time of the plea proceeding that his sentence would include a mandatory period of postrelease supervision. As a result, defendant was unable "to knowingly, voluntarily and intelligently choose among alternative courses of action" (People v Catu, 4 NY3d 242, 245; see People v Minter, 42 AD3d 914), and his plea must be vacated.

9. People v Camelo 2008 NY Slip Op 01248 [2/8/08]
The burglary and petit larceny charges stem from defendant's entry into the apartment where defendant had been living with his girlfriend and their two children, and his removal therefrom …. [T]he verdict is against the weight of the evidence with respect to the count of petit larceny…. Although the weight of the evidence establishes that defendant removed some of his girlfriend's belongings from the apartment, it also establishes that he voluntarily returned those belongings to his girlfriend within a short time thereafter. Consequently, the evidence weighs heavily in favor of a finding that defendant did not intend to steal the property from his girlfriend within the meaning of Penal Law § 155.25,i.e., he did not intend "to withhold [the property] from [her] permanently" (§ 155.00 [3]; see § 155.05; see generally People v O'Reilly, 125 AD2d 979). We find that the jury "failed to give the evidence the weight it should be accorded" on the issue of defendant's intent to commit petit larceny (Bleakley, 69 NY2d at 495), and we therefore modify the judgment by reversing that part convicting defendant of petit larceny and dismissing count two of the indictment. In view of our reversal of that part of the judgment convicting defendant of petit larceny as against the weight of the evidence, and because there is no evidence that defendant intended to commit any other crime upon his entry into the apartment (cf. People v Lewis, 5 NY3d 546, 551-552), we further find that the burglary conviction is against the weight of the evidence (see generally People v Gaines, 74 NY2d 358, 362-363). We therefore further modify the judgment by reversing that part convicting defendant of burglary in the second degree and dismissing count one of the indictment.

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