Sunday, December 20, 2009

Melendez-Diaz revisited, in a hurry

The Supreme Court will hear argument in Briscoe v. Virginia on January 11, 2010, a case revisiting the need for live testimony when introducing lab reports established by Melendez-Diaz. Prof. Richard Friedman, who writes the Confrontation Blog will argue for the defense. The National Association of Criminal Defense Lawyer's amicus brief was co-authored by a Washington PDS lawyer and Jeffrey Fisher, who argued Melendez-Diaz and Crawford v. Washington and in the "our rock stars are different than your rock stars" vein, is probably the Mick Jagger of appellate advocacy.

So what's the difference between the ink-barely-dry Melendez-Diaz and Briscoe? Justice Sotomayor, for one. There are other differences, but that may be the one that counts. As the New York Times points out here, we'll soon find out what Justice Sotomayor thinks about the right to confrontation.

Wednesday, December 16, 2009

Can you hear me now?

On 12/15/09 in People v Wrotten (a name that works), the Court of Appeals, relying on People v Cintron (75 NY2d 249 [1990]) held that permitting an adult complainant living in another state to testify via real-time, two-way video after finding that because of age and poor health he was unable to travel to New York to attend court was within the trial court's inherent powers under Judiciary Law § 2-b, absent any specific statutory authority for such procedure.

The majority elides over the substantial impairment to the defendant's rights under the Confrontation Clause that must necessarily result from attempting to cross-examine a witness who is watching the process on T.V.; roughly equivalent to trying to hit a marshmallow out of the new Yankee Stadium (even over the short wall). By contrast, Judge Smith in dissent, while not using that analogy exactly, gets the point across:

"The right of confrontation includes -- indeed, is, at its core -- the right to meet one's accuser face to face (Coy v Iowa, 487 US 1012, 1016 [1988]). Neither our Court nor the United States Supreme Court has held, and I would not now hold, that a two-way-television encounter is "face to face" in this sense. The assumption underlying the constitutional right of confrontation is that a witness brought into the presence of the accused will be less likely to swear to a false accusation, or to do so convincingly (id. at 1019). The point of confrontation is thus the psychological effect it has on the witness. That effect is, beyond question, substantially diluted when, though the witness and the accused can see each other, the witness knows that the accused is far away. I therefore conclude that defendant in this case was not permitted to "confront" her accuser in the constitutional sense . . ."

Judge Jones, also in dissent, notes that absent any legislative authority that would explicitly provide for the procedure used here, the majority essentially manufactures some extra trial court authority out of whole cloth, noting that "the majority's view of the courts' inherent powers presents a number of problems . . . there does not appear to be any discernible limitation, within the inherent powers of the courts, on a court's authority to allow the admission of an absent witness's televised testimony as long as it is 'necessary to carry into effect the powers and jurisdiction possessed by [the court]' . . . what happens when individual courts, on similar facts, reach different conclusions as to whether to allow the admission of televised testimony or some other subject pertaining to the state's public policy? . . . it appears that the majority's ruling effectively circumscribes the Legislature's role by allowing trial courts to . . . create procedural rules for the sole purpose of allowing prosecutions to proceed (in direct contravention to state law)."

Another case of bad facts making bad law. The 85 year old complainant in this case was in ill health and unable to travel to the trial. Judge Jones proposed the remedy of a pretrial deposition, a solution that either didn't occur to the trial court, or couldn't be swallowed (who wants be known as the judge who let an attorney cross-examine a witness to death?) So the appellate result is an amorphous, undefinable, boundry-less "I'll know it when I see it"-like legal standard.

Ten Years After - DNA and delayed prosecution

Extending the ability to belatedly prosecute cases where defendants are identifiable by DNA only, in People v. Ramon Ramos (12/15/09) the Court of Appeals held that "The prosecution was not barred by the five-year statute of limitations pursuant to CPL 30.10(2)(b). Although the indictment was nearly 10 years after the incident, defendant's whereabouts were 'continuously unknown and continuously unascertainable,' despite the reasonable diligence of the detectives assigned to the case, until his DNA profile from the rape kit taken from the victim was matched to DNA evidence taken from defendant pursuant to a subsequent incarceration (CPL 30.10 [4][a][ii]; see also Executive Law §§ 995 [7], 995-c [3]; People v Seda, 93 NY2d 307, 311 [1999]; People v Brown, __ NY3d __, 2009 Slip Op 08475 [2009]).

Defendant's belated claim that the extension of the statute of limitation violated ex post facto considerations was not preserved below. Personally, I'm a little jealous of anyone who can put together a 10-year unbroken stretch with their whereabouts "continuously unknown and continuously unascertainable." That's a lot of time in the wind.

Sunday, December 6, 2009

"The People are fully aware of their Brady obligations and will comply with the same."

Don't bet on it. Many of the same prosecutors who offer this rote recitation meant to placate the defendant and the court, go on to demonstrate an affirmative unfamiliarity with their Brady obligations.

The problem many be one of semantics. "Brady material" has become a shorthand reference for "those materials required to be disclosed under Brady and its progeny." If "Brady material" refers to only those items described in the Brady decision, such a cramped reading allows the prosecutor to ignore any case that came after, and built upon, Brady. On the other hand, if "Brady material" is given its commonly-understood meaning, then many prosecutors either have not read, or if they have, intentionally misrepresent to the court, the obligations imposed by those "progeny" cases. The ability to sing the song ("Here's a story, of a man named . . . ") does not an awareness of Brady make.

For example, many prosecutors argue that Brady is inapplicable to impeachment material or any “bad act” information not resulting in a conviction. This argument is unsupported by and directly contrary to over 30 years of New York State and federal law (Youngblood v. West Virginia, 547 U.S. 867 [2006]; Kyles v. Whitely, 514 U.S. 419 [1995]; Wood v. Bartholomew, 516 U.S. 1 [1995]; United States v. Bagley, 473 U.S. 667 [1985]; United States v. Agurs, 427 U.S. 97 [1976]; Brady v. Maryland, 373 U.S. 83 [1963]; People v. Baxley, 84 N.Y.2d 208, 213 [1994], rearg. dismissed 86 N.Y.2d 886 [1995]; People v. Steadman, 82 N.Y.2d 1 [1993]; People v. Novoa, 70 N.Y.2d 490 [1987]; People v. Harris, 35 A.D.3d 1197 [4th Dept. 2006]; People v. Monroe, 17 A.D.3d 863, 864 [3rd Dept. 2005]; People v. Valentin, 1 A.D.3d 982 [4th Dept. 2004], lv. denied 1 N.Y.3d 602 [2004]).

In fact, Brady material unquestionably includes evidence that detracts from the credibility or probative value of testimony or evidence offered by the prosecution (Giglio v. United States, 405 U.S. 150 [1972]; Thomas v. United States, 343 F.2d 49 [9th Cir. 1965]; People v. Novoa, supra), including impeachment material (United States v. Bagely, 473 U.S. 667 [1985]), as well as full details concerning any cooperation agreement between the government and a witness (People v. Steadman, supra; People v. Cwikla, 46 N.Y.2d 434, 441-442 [1979]; People v. May, 228 A.D.2d 523 [2nd Dept. 1996]; People v. Grice, 188 A.D.2d 397 [1st Dept. 1992]; see also, Shih Wei Su v. Filion, 335 F.3d 119 [2nd Cir. 2003]).

The prosecution’s obligation of disclosure under Brady requires “. . . more than just a boilerplate, cursory review and response. It must be a pro-active, vigorous attempt to respond . . .” (People v. Ariosa, 172 Misc.2d 312 [Co. Ct. Monroe Co. 1997]; People v. Novoa, supra; see also, People v. Simmons, 36 N.Y.2d 126, 132 [1975]; Kyles v. Whitley, supra). Along these lines, it is not for the People to decide whether exculpatory evidence is reliable; that determination is for defense counsel alone (People v. Jackson, 198 A.D.2d 301 [2nd Dept. 1993]) and neither the prosecutor nor the court may substitute their judgment of the value of the evidence for that of defense counsel (Dennis v. United States, 384 U.S. 855, 875 [1966]; People v. DaGata, 86 N.Y.2d 40 [1995]). In this regard, any close questions should be resolved in favor of disclosure (United States v. Agurs, 427 U.S. 97, 108 [1976]). The Court of Appeals has cautioned the prosecution “to err on the side of disclosure where exculpatory value is debatable” (People v. Vilardi, 76 N.Y.2d 67, 77 [1990]).

Instead, prosecutors often seek to insulate their witnesses from relevant cross-examination, thereby presenting the jury with an artificially sanitized view of the witnesses’ credibility by watering down the defendant’s Sixth Amendment right to meaningful confrontation and the effective assistance of counsel.

When arguing against their obligation to make such disclosures prosecutors will often complain (either expressly or by implication) that compliance with defendant's requests would result in unfairness to the People - "it's not a level playing field." Of course, it was never meant to be.

For example, unlike those restrictions applicable to a defendant, there is no prohibition against demonstrating the propensity of a witness (see, People v. Davis, 44 N.Y.2d 269, 274 [1978]; People v. Mayrant, 43 N.Y.2d 236, 239 [1977]; People v. Sorge, 301 N.Y. 198, 200 [1950]). Thus, evidence of the uncharged immoral or criminal acts of a non-defendant witness is admissible and may not be excluded if probative of a matter in issue, unlike proof of other bad acts employed to demonstrate the character of a defendant (People v. Jackson, 39 N.Y.2d 64 [1976]; People v. Fiore, 34 N.Y.2d 81 [1974]).

Likewise, there is no Molineux-type restriction on introducing evidence of the criminal acts of a witness (see, e.g., People v. Morgan, 172 A.D.2d 312, 313 [1st Dept. 1991]; People v. Molineux, 168 N.Y. 264 [1901]). While such evidence is relevant and admissible, the admission of such evidence against a defendant is “objectionable because juries may attribute too much significance to it” (People v. Lewis, 69 N.Y.2d 321 [1987]). Thus, this evidence is not admissible against a defendant because of the danger that it might “result in the proof of the prior offenses being taken by the jury as justifying a condemnation of the defendant irrespective of his guilt of the offense charged” (Id.). These policy considerations are not applicable to the admission of “propensity” or “other bad act” evidence against a witness. Defendant’s right to present relevant evidence at trial, guaranteed by the United States and New York State Constitutions compels at minimum that the defense be permitted to offer such evidence and elicit a ruling from the Court as to it’s relevance in light of the other facts presented at trial (see, e.g., Chambers v. Mississippi, 410 U.S. 284 [1973]).

To those courts disinclined to wade into Brady disputes and the necessarily attendant and messy allegations of prosecutorial negligence, sharp practice, or affirmative misrepresentation or concealment, Justice Frank offered some, well, frank guidance:

"If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it . . . If the prosecutors win verdicts as a result of ‘disapproved’ [conduct], we will not deprive them of their victories; we will merely go through a form of expressing displeasure. The deprecatory words we use in our opinions are purely ceremonial. Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court – recalling the bitter tear shed by the Walrus as he ate the oysters – breeds a deplorable cynical attitude towards the judiciary" (United States v. Antonelli Fireworks Co., 155 F.2d 631, 651 [2nd Cir. 1946] [Frank, J., dissenting]).

Brady and pre-trial disclosure

Some prosecutors argue (without citation to any authority, because there is none) that Brady material not contained in a document memorialized by a witness himself (such as the witness's grand jury testimony or statements to the prosecutor) need not be disclosed prior to the witness's testimony at trial. In United States v. Sablan & Guerrero, 2009 WL 3379011 (E.D. Cal. 2009), a recent federal homicide prosecution, the defendants requested pretrial discovery of just such Brady material. In that case the trial court granted the defense request for pretrial disclosure of Brady material, rejecting the government's argument that Brady material need not be turned over prior to the witness testifying as long as the material was also considered discoverable pursuant to the Jencks Act (the federal equivalent of the Rosario rule and CPL 240.45 discovery). The court held that Brady obligations are not altered by the fact that such information is contained in statements or grand jury testimony and thereby also subject to disclosure pursuant to some other obligation, such as the Jencks Act.

Prosecutorial attempts to conceal the information that must eventually be turned over as Brady material until the last possible moment have been criticized as gamesmanship seeking to prevent effective defense use of such information or, at minimum, to make such use exponentially more difficult, contrary to the direction that such disclosure be made in time for the defendant to use it effectively (see, People v. Steadman, 82 N.Y.2d 1 [1993]; People v. Leavy, 290 A.D.2d 516 [2nd Dept. 2002]; see also, Leka v. Portuondo, 257 F.3d 89 [2nd Cir. 2001]).

Friday, December 4, 2009

Objection Not Required Where Prosecution Switches Theories

In People v Gunther (__AD3d__, 2009 NY Slip Op 08656 [11/20/09]) the Fourth Department re-affirmed the rule that a person may not be convicted of a crime based upon a theory different from that charged in the indictment. In Gunther, the defendant was charged with Sex Abuse in the First Degree. for allegedly touching the complainant's vagina with his penis. However, the testimony was that the defendant touched the complainant's buttocks and leg and rubbed his penis on her back. Anyone of these acts could have supported a conviction for Sex Abuse in the First Degree. However, the Court held that "it is well established that a defendant cannot be convicted of a crime based upon evidence of an 'uncharged theory'(People v Grega, 72 NY2d 489, 496; see People v Greaves, 1 AD3d 979; see generally People v Bradford, 61 AD3d 1419, 1420-1421)."

Perhaps more importantly , the Court held that "Defendant was not required to preserve his contention for our review inasmuch as '[t]he right of an accused to be tried and convicted of only those crimes and upon only those theories charged in the indictment is fundamental and nonwaivable' (People v Rubin, 101 AD2d 71, 77, lv denied 63 NY2d 711)." Thus, the conviction on that charge was reversed absent an objection on this ground.

Sunday, November 22, 2009

Benefits & Brady

In People v Colon (__NY3d__, 2009 NY Slip Op 08477 [11/19/09])the Court of Appeals granted co-defendants' motion to vacate their murder convictions where only two witnesses had linked the defendants to the crime and the trial prosecutor had permitted one of the witnesses to falsely state the extent of the benefits he received for testifying against the defendants. The Court held that
In their role as public officers, prosecutors "must deal fairly with the accused and be candid with the courts" (People v Steadman, 82 NY2d 1, 7 [1993]). This duty requires prosecutors not only to disclose exculpatory or impeaching evidence but also to correct the knowingly false or mistaken material testimony of a prosecution witness. Where a prosecutor elicits or fails to correct such inaccurate testimony, reversal and a new trial are necessary unless there is no "reasonable possibility" that the error contributed to the conviction (citations omitted).

Yet, the trial prosecutor had personally been involved in conveying a favorable plea offer which had not been disclosed to the defense. The prosecutor failed to correct the witness's misleading testimony and, in addition, compounded these errors by repeating and emphasizing the misinformation during summation. In reversing, the Court held that
Unlike the Appellate Division, we believe that there is a reasonable possibility that these errors affected the jury's verdict (see People v Vilardi, 76 NY2d 67, 77 [1990]). At trial, only two witnesses connected defendants to the crime... [One] had previously committed perjury and was a self-described drug kingpin and murderer. His veracity was further called into question given that he was facing life imprisonment on both state and federal charges when he agreed to testify against defendants. [The other witness's] testimony was therefore crucial. But the false testimony elicited by the prosecutor regarding the benefits extended may well have impacted the jury's perception of [that witness's] credibility. By their very nature, benefits conferred on a witness by a prosecutor provide a basis for the jury to question the veracity of a witness on the theory that the witness may be biased in favor of the People. For this reason, it is important that witnesses provide truthful testimony when questioned about the receipt of such benefits, and the People must be vigilant to avoid misleading the court or jury. Rather than correct the inaccurate testimony, the prosecutor here exacerbated the problem during her closing comments.

Thus, the Court of Appeals has again sent a message to both prosecutors and lower courts. The Court's holding in Vilardi means what it says: Harmless error anaylsis will not save convictions, even convictions for serious crimes, where there is a reasonable possibility that Brady violations (Brady v Maryland, 373 U.S. 83 [1963]) affected the jury's verdict. (See also its decision last year in People v Hunter, 11 NY3d 1 [2008], discussed here).

Can New York Police Order Blood Draw from Suspect Outside New York?

In People v Lerow (_ AD3d __, 2009 NY Slip Op 08648 [4th Dept 12/20/09]) the Fourth Department decided an apparent issue of first impression for a New York appellate court: Can a New York police officer lawfully to direct the withdrawal of blood from a suspect who is physically located outside of the state, where the supsect had been involved in a vehicular accident in New York State and transferred to another state (in this case Pennsylvania. For an excellent summary and analysis of the Court's holding that, under the circumstance the officer had the authority to order the blood draw even though he was out-of-state, see this entry in the blog, New York Criminal Law and Procedure.

Saturday, November 14, 2009

Consent to What?

A person's consent to do one thing is not a blanket consent to something else. In People v Gayden (__AD3d__, 2009 NY Slip Op 08332 [4th Depth 11/13/09]), the Fourth Department reminded both police and prosecutors that a person's consent to go one place with the police is not consent to also go to the police station with them. After the defendant agreed to show the police the location where he was allegedly robbed, and accompanied the officers to that location, the officers then transported defendant to the police station, whereupon they informed him that they did not believe his version of the events. Defendant them waived his Miranda rights, and in response to police questioning, gave inculpatory statements that he moved to suppress.

The Fourth Department held that

Even according great weight to the determination of the suppression court, "with its peculiar advantages of having seen and heard the witnesses" (People v Prochilo, 41 NY2d 759, 761), we conclude that the evidence at the suppression hearing does not support the court's determination that defendant voluntarily accompanied the investigating officers to the police station and thus that he was not in custody when he made the statements (cf. People v Yukl, 25 NY2d 585, 592, cert denied 400 US 851). "In determining the scope of consent, a suppression court must look to the exchange between the parties——both the request and the response——and any attendant circumstances" (People v Gomez, 5 NY3d 416, 420). Although it is undisputed that defendant agreed to accompany the investigating officers to the intersection where he allegedly had been shot, the People failed to present any evidence at the suppression hearing on the issue whether defendant, who had no other means of transportation to travel back to his home, in fact consented to accompany the officers to the police station (see People v Rosa, 30 AD3d 905, 908, lv denied 7 NY3d 851). Therefore, viewing the circumstances in the light of " what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant's position,' " we agree with defendant that his detention was in fact the equivalent of an arrest, requiring probable cause (citations omitted).

Not Every Document Kept By A Business Qualifies as a Business Record Under CPLR 4518

In People v Manges ( __ AD3d__, 2009 NY Slip Op 08258 [4th Dept 11/13/09]), the Court reversed and dismissed convictions for Criminal Possession of a Forged Instrument and Grand Larceny which were predicated on a computer printout of electronic data that was displayed on a computer screen when defendant presented a check, the allegedly forged instrument, to a bank teller, that should not have been admitted into evidence.

The People failed to establish that the printout falls within the business records exception to the hearsay rule (see CPLR 4518 [a]), which applies here (see CPL 60.10). The People presented no evidence that the data displayed on the computer screen, resulting in the printout, was entered in the regular course of business at the time of the transaction (see CPLR 4518 [a]). Indeed, the bank teller who identified the computer screen printout testified that "anyone [at the bank] can sit down at a computer and enter information." Because the computer screen printout was the only evidence establishing the identity of the purported true account owner upon which the check was drawn, we conclude that the evidence is legally insufficient to support the conviction (see generally People v Bleakley, 69 NY2d 490, 495).

Flashing High Beams Did Not Provide Probable Cause For Stopping Vehicle

A conviction for driving while intoxicated was reversed in People v Rose (__AD3d __, 2009 NY Slip Op 08412 [4th Dept 11/13/09]) where the stop was baed on what the officer's bleief that he had witnesses a violation of the Vehicle and Traffic Law,based on mistaken interpretation of the law.

At the suppression hearing, the police officer who stopped defendant's vehicle testified that, as he was traveling behind defendant's vehicle on a divided highway, he observed defendant flash his high beams while there was a vehicle approaching from the opposite direction. The officer then stopped defendant's vehicle based on his belief that defendant had violated Vehicle and Traffic Law § 375 (3). The officer testified that he understood that statute to mean that a driver is not allowed to flash his or her high beams "for particularly no reason at an oncoming vehicle." Section 375 (3) actually provides in relevant part that, "whenever a vehicle approaching from ahead is within [500] feet . . ., the headlamps, if of the multiple beam type . . . shall be operated so that dazzling light does not interfere with the driver of the approaching vehicle . . . ." The mere flashing of lights, alone, does not constitute a violation of the statute (citations omitted). The People presented no testimony at the hearing concerning the distance between defendant's vehicle and the oncoming vehicle, and there was no evidence that defendant's flashing of the high beams interfered in any way with the driver of the approaching vehicle. Indeed, because the officer mistakenly believed that flashing of the high beams for no particular reason was unlawful irrespective of the distance between vehicles, the officer did not concern himself with the distance of the approaching vehicle. Thus, the stop of defendant's vehicle was based on a mistake of law. "Where the officer's belief is based on an erroneous interpretation of law, the stop is illegal at the outset and any further actions by the police as a direct result of the stop are illegal" (citations omitted).

Doing Nothing Might Not Be A Crime

In affirming a dismissal of an indictment charging criminally negligent homicide (CNH), due to insufficient proof at the Grand Jury, the Fourth Department, in People v Bianco ( __ AD3d __, 2009 NY Slip Op 08371 [11/13/09]), held that a drug users actions and inactions regarding a drug user's "wasted" drug using friend, the court held that leaving the eventual decedent in his car sleeping and looking like he was getting sick, and then, on observing decedent's vehicle parked where he had left it, not stopping to check to see how he was doing was not enough evidence of CNH where the decedent had died while in the vehicle, and the Coroner concluded that the cause of death was "[m]ixed drug intoxication." The Court explained that

The standard for reviewing the legal sufficiency of the evidence before the grand jury is " whether the evidence, viewed in the light most favorable to the People, if unexplained and uncontradicted, would be sufficient to warrant conviction by a trial jury' " (People v Scerbo, 59 AD3d 1066, 1067, lv denied 12 NY3d 821, quoting People v Manini, 79 NY2d 561, 568-569). Here, we conclude that defendant's actions were not a "sufficiently direct cause" of decedent's death to warrant the imposition of criminal liability (People v Kibbe, 35 NY2d 407, 413, rearg denied 37 NY2d 741). Decedent's death was attributed solely to a drug overdose, and the evidence presented to the grand jury established that decedent himself obtained the drugs, outside the presence of defendant, and that decedent did not use drugs in defendant's presence on the day in question (cf. People v Galle, 77 NY2d 953, 955-956).

Friday, November 13, 2009

Fourth Department Recognizes its Authority to Reduce Negotiated Sentences

In February, this blog discussed the Fourth Department's failure to acknowledge its authority to reduce negotiated sentences.
The focal point of the column was the decision in People v Farrow, 59 AD3d 935 [4th Dept 2/6/09],in which the Court held that “Nevertheless, we reject defendant's challenge to the severity of the sentence. "Defendant was sentenced in accordance with the plea bargain and should be bound by its terms" (People v McGovern, 265 AD2d 881, lv denied 94 NY2d 882). Farrow does not mention of the court decisions, including that of the Court of Appeals, which make clear that the broad, plenary power of the Appellate Division, includes the power to reduce a sentence even if the sentence imposed pursuant to a negotiated plea bargain. People v Delgado, 80 NY2d 780,783 (1992); People v Thompson, 91 AD2d 672 (2nd Dept. 1982), modified 60 NY2d 513 (1983); People v Suitte, 90 AD2d 80 (2nd Dept. 1982). Further, I noted that McGovern, an earlier Fourth Department decision never cited nor distinguished these cases. Rather it merely quotes People v Zelke (203 AD2d 909), an earlier Fourth Department decision, which merely quoted People v Felman (141 AD2d 889) a decision of the Third Department which pre-dated the Court of Appeal decision in Delgado. I concluded by noting that the Fourth Department last cited Delgado as a basis for reducing a negotiated sentence in 1996 in People v Sanchez (225 AD2d 1085 [4th Dept 1996]), in which the Court reduced a negotiated sentence from 8 1/3 year to life to 3 years to life.

In People v Garcia-Gual (__ AD3d __, 2009 NY Slip Op 08277 [11/13/09]) the Fourth Department, finally disavowed its holding in McGovern, cited Delgado, and set forth the scope of its authority to review and reduce negotiated sentences:
We agree with defendant that, in reviewing his contention, it is inappropriate for this Court to address whether the sentencing court abused its discretion (see generally People v Delgado, 80 NY2d 780, 782). Pursuant to CPL 470.15 (2) (c), we may modify a judgment "by reversing it with respect to the sentence" in the event that the sentence is illegal and, pursuant to CPL 470.15 (6) (b), we may reverse or modify a judgment as a matter of discretion in the interest of justice in the event that "the sentence, though legal, was unduly harsh or severe." We also agree with the further contention of defendant that the fact that he received the bargained-for sentence does not preclude him from seeking our discretionary review of his sentence pursuant to CPL 470.15 (6) (b) (see People v Smith, 32 AD3d 553, 554; see generally People v Pollenz, 67 NY2d 264; People v Thompson, 60 NY2d 513, 519-520). To the extent that prior decisions of this Court, including People v McGovern (265 AD2d 881, lv denied 94 NY2d 882), suggest a rule to the contrary, those decisions are not to be followed.

Mr. Garcia-Gual's sentence appeal was then rejected under the correct standard of review.

Wednesday, October 28, 2009

Another Decision on Expert Testimony on Identification Evidence

In People v Abney and Allen (2009 NY Slip Op 07668 10/27/09) the Court of Appeals considered two cases in which the defense was denied the right to introduce expert testimony on identification evidence. The Court applied the test it previously employed in People v Young (7 NY3d 40 [2006]) for determining whether such a ruling is error: was there was evidence which corroborated the identification evidence.

The Young standard in which a defendant’s right to present evidence is conditioned on the court’s perception of the strength of the People’s case appears to be in conflict with the holding of the United States Supreme Court in Holmes v South Carolina (547 U.S. 319 [2006]), that he right of a defendant to have a meaningful opportunity to present a complete defense cannot be conditioned of the perceived strength of a prosecutor's case.

But, as Monroe County Assistant Public Defender Jim Eckert points out, there is some good language in the decision which should be cited by counsel in other contexts. Specifically, in discussing whether the error of excluding the expert testimony in Abney was harmless the Court wrote that

"Finally, we do not consider the trial judge's error in Abney to have been harmless. While defendant's muddled alibi evidence was no doubt unhelpful to his cause with the jury, it is not overwhelmingly inculpatory either. And, of course, it is possible that defendant would not have pursued an alibi defense in the first place if Dr. Fulero had testified. " (emphasis supplied).

Thus, the Court recognized that the defendant’s strategy could have been altered by the court’s erroneous ruling and that the burden cannot be on the defendant to establish all of these consequences. In an analogous situation, the United States Supreme Court has held that whether a defendant’s confession was illegally admitted at trial and the defendant then testifies in his own defense, that testimony cannot be used at the re-trial, because it cannot be determined if the decision to testify was caused by the illegal admission of the confession. Harrison v United States, 392 US 219, 224-225 (1968). Quoting from the Court of Appeals decision in De Cicco v Schweizer (221 NY 431, 438 [1917]), the Court wrote that

It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand at his former trial. But, having illegally placed his confessions before the jury, the Government can hardly demand a demonstration by the petitioner that he would not have testified as he did if his inadmissible confessions had not been used. ‘The springs of conduct are subtle and varied,’ Mr. Justice Cardozo once observed. ‘One who meddles with them must not insist upon too nice a measure of proof that the spring which he released was effective to the exclusion of all others.’ [citation omitted] Having ‘released the spring’ by using the petitioner's unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony.
Harrison v United States, 392 US 219, 224-225 (1968).

To read Justice Cardozo is to be humbled.

Sunday, October 4, 2009

Not so Swift

The decision in People v Sammy L. Swift (2009 NY Slip Op 07009 [4th Dept 10/2/09]) is a short one, and you really have to read it all to appreciate it, so here goes:

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law, the motion is denied and the judgment of conviction is reinstated.

Memorandum: On a prior appeal, we affirmed a judgment convicting defendant upon a jury verdict of murder in the second degree (Penal Law § 125.25 [3]) and robbery in the first degree (§ 160.15 [1]; People v Swift, 241 AD2d 949, lv denied 91 NY2d 881, 1013). The People appeal from an order granting defendant's motion to vacate the judgment of conviction on the ground of newly discovered evidence (see CPL 440.10 [1] [g]), i.e., post-trial DNA test results indicating that the blood found at the crime scene was exclusively that of the victim. We agree with the People that the DNA test results are not "of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant" (CPL 440.10 [1] [g]). At the trial, the People presented evidence that blood at the crime scene was consistent with both the victim's blood type and defendant's blood type. Although the People relied upon that evidence to corroborate the testimony of defendant's accomplices (see Swift, 241 AD2d 949), we conclude that the remaining nonaccomplice evidence tends to connect defendant to the robbery and murder and is sufficient "to assure that the accomplices have offered credible probative evidence" (People v Breland, 83 NY2d 286, 293). The contention of defendant in his pro se supplemental brief that the sister of the accomplices was herself an accomplice whose testimony required corroboration was not raised in the motion and thus is not properly before us (see generally People v Goodell, 221 AD2d 1009, lv denied 88 NY2d 848). We have considered the remaining contentions of defendant in his pro se supplemental brief and conclude that they are lacking in merit.

Although the facts in the decision are typically sparse, lets try to translate to more clearly see what is really going on here:

1. Defendant lost the direct appeal of his robbery/murder conviction.

2. At trial the People argued that the blood at the scene belonged to both the victim and the defendant.

3. This evidence corroborated the accomplice testimony - apparently the only other evidence linking defendant to the commission of the crime.

4. The accomplices' sister was an accomplice too, but since her status as an accomplice wasn't preserved, her testimony now becomes the only "non-accomplice" evidence, apart from the blood evidence, connecting defendant to the crime.

5. After trial, defendant was able to demonstrate that the blood at the scene, contrary to the People's theory at trial, belonged only to the victim.

6. Defendant argued that had the truth been known by the trial jury, this would have created a reasonable possibility of a more favorable verdict in a case where the only other evidence against the defendant was accomplice evidence.

7. The lower court agreed and reversed defendant's conviction.

8. The Appellate Division held that this would NOT create a reasonable possibility of a more favorable verdict because of the other evidence connecting defendant to the crime. What other evidence? Why the testimony of the accomplice/non-accomplice sister, of course.

See if you can identify the problems with this decision - it's like one of those drawings containing the hidden objects - there's always one more.

First, the court equates the existence of what it somewhat disingenuously characterizes as non-accomplice evidence - the sister's testimony (and if there was other non-accomplice evidence, we couldn't know it from the facts recited in the decision, so I think this characterization is fair) - with a failure by the defendant to demonstrate a reasonable possibility of a more favorable verdict. But to prevail at this stage, the defendant need not prove that he WOULD prevail at trial, only that he MIGHT, in light of the new evidence. That the People may still have some evidence in their favor doesn't decide this question.

Another problem? The trial court - who, remember, sat through the trial, heard all the proof, saw the witnesses, and presided over the 440 hearing - is generally to be accorded "great deference," the cases so holding are legion, but only when ruling in favor of the People?

According to this decision, the prosecution's (untruthful) argument at trial that defendant's blood was present at the crime scene wasn't a significant consideration during jury deliberations? Do you think that is true? Do you think your average juror, if asked, would think so? Do you think this jury thought so?

Would the decision have been the same if defendant were convicted of grand larceny? This looks an awfully lot like the application of an Extremely Bad Man exception to the Due Process Clause.

Imagine that you're a second-year law student. This is the case you've been assigned to brief for today's class and you are tasked with defending the court's reasoning. Ready? Go . . .

Insufficient Evidence of Reckless Endangerment in the First Degree

In rejecting the People's appeal from the dismissal of an indictment for Reckless Endangerment in the First Degree, the Court in People v Hatch (2009 NY Slip Op 07075 [4th Dept 10/02/09]) held that
Defendant's actions in driving a vehicle off a street and "doing donuts" with the vehicle in an open field at night with the headlights on do not constitute the "hallmarks of wanton recklessness necessary to demonstrate circumstances evincing a depraved indifference to human life' " (People v Dudley, 31 AD3d 264, 264, lv denied 7 NY3d 866; cf. People v Gomez, 65 NY2d 9, 10-12; People v Mooney, 62 AD3d 725; People v Robinson, 16 AD3d 768, 769-770, lv denied 4 NY3d 856). Further, although there was evidence that defendant drove in the general direction of two witnesses, we conclude that such evidence is insufficient to establish that defendant's conduct created a grave risk of death to those witnesses (cf. Robinson, 16 AD3d at 769-770; People v Williams, 158 AD2d 253, 253-254, lv denied 75 NY2d 971).

Affidavit of Regularity/Proof of Mailing from DMV is Testimonial Evidence

In People v Darrisaw (2009 NY Slip Op 06992 [4th Dept 10/2/09]), the defendant appealed from a judgment convicting him upon a jury verdict of aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3] [a] [ii]). The Court reversed because the convciton was based on an Affidavit of Regularity/Proof of Mailing from the Department of Motor Vehicles, whoch denied the defendat his right to confrontation:
In accordance with our decision in People v Pacer (21 AD3d 192, affd 6 NY3d 504), we conclude that the "Affidavit of Regularity/Proof of Mailing" (affidavit) prepared by an employee of the Department of Motor Vehicles (DMV) constituted testimonial evidence that did not fall within the business records exception to the hearsay rule (see CPLR 4518 [a]; CPL 60.10). The affidavit served as "a direct accusation of an essential element of the crime" (Pacer, 6 NY3d at 510) and, indeed, it was the only evidence suggesting that defendant had the requisite notice of his driver's license suspensions. Defendant's opportunity to cross-examine a DMV employee who was not directly involved in sending out suspension notices and who had no personal knowledge of defendant's driving record was insufficient to protect defendant's Sixth Amendment right of confrontation (see Crawford v Washington, 541 US 36). We therefore reverse the judgment and grant a new trial on count two of the indictment.
By contrast, in People v Bush (2009 NY Slip Op 07066 [4th Dept 10/2/09]) the Court held that

Contrary to the contention of defendant, his right of confrontation was not violated by the admission in evidence of a certified abstract of a registration record of the New York State Department of Motor Vehicles. The "various indicia of testimoniality" are not present in the registration record (People v Rawlins, 10 NY3d 136, 151). Rather, the registration record contains only objective facts, its contents are not directly accusatory, and it does not reflect "the exercise of fallible human judgment' " (People v Freycinet, 11 NY3d 38, 41). Similarly, the accompanying affidavit refers only to the authenticity of the registration record and its use in the regular course of business, and it contains no statement concerning the role of the registration record in the case against defendant (cf. People v Pacer, 6 NY3d 504, 510-512).

Expectation of Privacy in Hotel Room Ends at Checkout Time, Even if Guest is in Police Custody at Checkout Time

In People v Kobza (2009 NY Slip Op 06948 [4th Dept 10/02/09]) the Court held that the defendant's expectation in the privacy of his hotel room expired when he did not check out by check out time because he was in police custody:

We reject the contention of defendant that Supreme Court erred in refusing to suppress two incriminating letters that the police found in a hotel room. Defendant had the burden of establishing that he had a legitimate expectation of privacy in the hotel room that was searched by the police (see People v Ramirez-Portoreal, 88 NY2d 99, 108), and he failed to meet that burden. Inasmuch as defendant failed to check out of the hotel by the required time, he "lost his [legitimate] expectation of privacy in the hotel room and its contents, and the [owner] of the hotel had the authority to consent to the search" by the police (People v D'Antuono, 306 AD2d 890, lv denied 100 NY2d 593, 641). That search was not rendered illegal by the fact that defendant's tenancy expired while defendant was detained after having been arrested.

Exclusion of Expert Testimony Regarding False Confessions Affirmed

Although counter intuitive, there now exists irrefutable evidence that people falsely confess to having committed serious crimes. Indeed in about a quarter of all wrongful convictions cleared by DNA evidence there had been a false confession (see, Innocence Project -Understand the Causes). Included in this group are cases in which the Fourth Department had affirmed the conviction despite a challenge to the voluntariness of the confession (See, e.g., People v Warney, 299 AD2d 956, 957, lv denied 99 NY2d 633 in which a man was wrongfully convicted and incarcerated for 10 years on the basis of a false confession (See). What's more studies have demonstrated that false confessions are induced by certain interrogation techniques. A useful listing of articles on this topic is available here.

One means to reduce the problem of jurors incorrectly assuming that people would not falsely confess to serious crimes would be to permit expert witnesses to explain the studies on the this topic. This would be similar to the rulings permitting experts to testify that the failure to complain of a rape is not unusual. In People v Taylor and Banks (75 NY2d 277 [1990]) experts have been permitted to testify about how rape trauma syndrome is a recently recognized psychological disorder that can cause some rape victims to appear calm and relaxed after their attacks and lead them to delay reporting their rapes. The Court explained that its ruling was intended as a legal ounterweight to jurors who have misinterpreted such symptoms as evidence that the victim consented to sexual intercourse.

Why is there perceived less of a need to inform jurors of the psychological aspects of interrogation techniques that have been shown to lead to a false confessions?

The Fourth Department apparently sees juror misconceptions over silence about rape as different than juor miscopceptions about false confessions. In People v Bean (2009 NY Slip Op 06947 [4th Dept 102/09]) the defendant contended that the court erred in precluding the testimony of his expert witness who, according to defendant, would have provided general testimony concerning police interrogation techniques and false confessions. Rejectiong this argument, the Fourth Department held that

The court did not abuse its discretion in determining that the expert's testimony would not be relevant in view of the facts of this case (see generally People v Young, 7 NY3d 40, 44-45; People v Lee, 96 NY2d 157, 162).

The Court did not state whether under other circumstances it would find an abuse of discretion in excluding this testimony.

More Decisions, More Failures to Renew TOD Motions

The Fourth Department issued decisions on October 2, 2009. In three of the criminal appeals (People v Bean, 2009 NY Slip Op 06947 [4th Dept 10/2/09]; People v Laing, 2009 NY Slip Op 06906 [4th Dept 10/2/09]; People v Parks, 2009 NY Slip Op 06995 [4th Dept 10/2/09] the Court noted that the trial attorney had failed to renew the motion for a trial order of dismissal (TOD motion) as has been required, at least since the 2001 decision of the Court of Appeals in People v Hines,97 NY2d 56, 61, rearg denied 97 NY2d 678 (2001).

One might think that the failure to preserve for review the issue of sufficiency of the evidence when the evidence was insufficient would constitute ineffective assistance of counsel, since the consequence of the failure to comply with the preservation requirements set forth by the Court of Appeals eight years ago in Hines is that the defendant remains incarcerated for a crime not proved. The Appellate Division, Fourth Department does not agree. In Parks the Court rejected a claim that the failure to renew the TOD motion is ineffective, holding that

Contrary to defendant's further contention, defense counsel was not ineffective in failing to renew the motion for a trial order of dismissal (see People v Bassett, 55 AD3d 1434, 1438, lv denied 11 NY3d 922), nor was she ineffective in failing to make objections that "would have been unavailing" (People v Guerrero, 22 AD3d 266, 267, lv denied 5 NY3d 882). Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation (see People v Baldi, 54 NY2d 137, 147).

One wonders if Mr. Parks agrees that he received meaningful representation.

Thursday, September 24, 2009

Remember: Move and Then Move Again

In People v Kolupa (59 AD3d 1134 [4th Dept 2009])the Fourth Department split 3-2 on whether there was sufficient corroboration of unsworn testimony of a 7-year-old to support conviction for attempted rape, criminal sex act 1st degree and sexual abuse in the 1st degree. The purported corroboration was Mr. Kolupa’s statement that he had exposed himself to the boy - a statement that did not mention any touching or physical act.

The three judge majority held that this constituted sufficient corroboration. The dissenting justices disagreed, reasoning that the statement only corroborated lesser crimes and not the crimes charged. One of the dissenting justices granted leave to appeal to the Court of Appeals, which decided the case this week.

Who was right? Hard to tell, since the

Defendant failed to preserve his argument that the People introduced insufficient evidence to corroborate the child victim's testimony. At the close of the People's case, the trial court denied defendant's motion to dismiss and defendant proceeded to present his own evidence. He did not thereafter renew the motion to dismiss at the close of his proof or specifically argue that there was not sufficient corroboration of the victim's statements. As a result, this issue is not reviewable (see e.g. People v Lane, 7 NY3d 888, 889 [2006]; People v Payne, 3 NY3d 266, 273 [2004]; People v Hines, 97 NY2d 56, 61-62 [2001]).

People v Kolupa, __ NY3d __, 2009 NY Slip Op 06586 [September 22, 2009].

Would you want to be the attorney calling Mr. Kolupa (in a correctional facility) to explain this result? Or the trial attorney who caused this result by failing to make a proper motion? Or Mr. Kolupa?

Since failure to abide by the requirements of Hines is all too common a problem it is perhaps hopeful that in a concurring decision Judge Smith wrote that

Today's decision correctly applies People v Hines (97 NY2d 56, 61-62 [2001]). I have expressed my unhappiness with Hines before (People v Payne, 3 NY3d 266, 273 [2004] [R. S. Smith, J. concurring]), but this case, in which the Appellate Division did not mention preservation, defendant does not argue the issue, and the Appellate Division's decision on the merits seems clearly correct, is not the right one for further examination of the Hines rule.

Monday, September 21, 2009

Penal Law 70.10(1)(c): clarity takes a holiday

To qualify for an enhanced sentence as a persistent felony offender, a defendant must have been previously convicted of two or more felonies. Determining whether one has been previously convicted of two or more felonies sounds simple, right? Snatching obtuseness from the jaws of clarity, the Legislature has given us Penal Law 70.10(1)(c), which provides that:

"For the purpose of determining whether a person has two or more previous felony convictions, two or more convictions of crimes that were committed prior to the time the defendant was imprisoned under sentence for any of such convictions shall be deemed only one conviction."

This section presents a number of questions. The first might be, who wrote this sentence, so seriously lacking in punctuation to guide the reader? Another might be, what does the phrase "any of such convictions" relate to? Try reading the section with the emphasis on that phrase. Does that make the section more clear? No, it does not. Now try reading the section with a French accent. That's even worse.

Perhaps more useful in divining the Legislature's intent are some clarifying examples offered by Alan Rosenthal, Co-Director of Justice Strategies at the Center for Community Alternatives in Syracuse:


Example #1:

On the first day of each year starting on January 1, 2000 and continuing through 2004 (5 crimes) an extremely punctual defendant commits a crime. If he is sentenced and goes to prison on the 2000 crime before the 2001 crime is committed and is sentenced for the 2001 crime before he commits the 2002 crime and so on he will end up with 5 convictions. (Presumably by crime #5 the crime he's committing is either escape, possession of prison contraband, or some other in-custody offense).

Example #2:

Using the same 5 dates for the crimes committed but different sentencing and imprisonment dates you come up with a different number of convictions. Suppose after committing the crimes in 2000, 2001, 2002 and 2003 he doesn't get prosecuted on any of them until 2003. He gets convicted of the 2000 crime in 2004, the 2001 crime in 20005, the 2002 crime in 2006, and the 2003 crime in 2007. He would be deemed to have only one conviction. If he then commits a new crime in 2008 and gets convicted in 2008 he only has one prior conviction for purposes of the statute and counting the number of predicates.

So the second defendant, while sinning just as prolifically as the first, is subject to lesser penalties as a consequence of lackadaisical prosecution? This raises some other questions, such as (1) what message was the Legislature trying to send here? and (2) is it sound public policy for a punitive sanction to be determined not by the actions of a defendant but rather by the actions, or inaction, of a third party?

Tuesday, September 15, 2009

Time running out; exercising the right to testify before the grand jury

If, as in our jurisdiction, the District Attorney opts for a lickety-split indictment procedure in order to avoid being required to proceed with preliminary hearings, defendants’ rights to testify before the grand jury may be compromised. On the other hand, there is an apparent anomaly in CPL Article 190 that may be employed to protect the defendant’s right to testify.

The scenario goes something like this: Defendant is arraigned on a felony in local court, where the District Attorney serves the defendant with notice of the date of the grand jury presentation (before the preliminary hearing date) and his right to testify. The matter is scheduled for a preliminary hearing. For whatever reason, the defendant does not serve notice of his intention to testify and does not testify before the PH. On the PH date, defendant appears and is handed a certification that the grand jury has voted to indict him, although the indictment has not yet been filed. Before the indictment is filed, defendant serves notice of his intent to testify and a demand that he be permitted to testify before a grand jury that has not already voted to indict him. Is he entitled to do so? I think so.

A defendant’s right to testify before the grand jury must be scrupulously protected (People v. Degnan, 246 A.D. 2d 819 [3rd Dept. 1998]). Pursuant to CPL § 190.50(5), People v. Johnson, 46 A.D.3d 1384 [4th Dept. 2007], and People v. Lyons, 40 A.D.3d 1121 [2nd Dept. 2007] a defendant may serve notice of his intention to testify before the grand jury any time before an indictment has been filed. The certification that an indictment has been voted is not the same as filing and does not, according to the statute terminate defendant’s opportunity to exercise his right to testify before the grand jury.

But this poses a problem for the District Attorney, because a defendant who wishes to testify before a grand jury is entitled to testify before a grand jury comprised of grand jurors that have not heard evidence in the matter and voted to indict him (see, People v. Evans, 79 N.Y.2d 407 [1992]; see also, People v. Quick, 48 A.D.3d 1223 [4th Dept. 2008]; People v. Neely, 248 A.D.2d 996 [4th Dept. 1998]). None of these cases condition defendant’s right to testify on giving notice at the earliest possible moment or, for that matter, within the time-frame or by whatever deadline the District Attorney attempts to impose (in the absence of any statutory or decisional authority). The legislatively-imposed cutoff on defendant’s right to testify is the filing of the indictment. Short of that, the District Attorney lacks the authority to deny defendant’s request to testify as untimely.

Friday, September 11, 2009

Plain logic loses again.

Where the appellate court finds the sentence imposed to have been illegal and remits for vacatur or resentence, who gets to pick which relief is imposed? In People v Maliszewski (2009 NY Slip Op 6376, decided Sept 3, 2009), the Court of Appeals held that it was the sentencing court, not the defendant.

In 2006, County Court agreed that it would sentence Mr. Maliszewski to 2 to 4 years upon his conviction for burglary, if he paid restitution from a previous conviction. He failed to do so, and the Court imposed a term of 3 to 6 years, as it had promised at plea. On appeal, the Fourth Department reversed, finding that the enhancement was illegal. It remitted "to resentence defendant to an indeterminate term of incarceration of 2 to 4 years ... or to afford defendant the opportunity to withdraw his plea" (49 AD3d 1165). On remittur, defendant declined to request vacatur, and instead asked County Court for the 2 to 4 year sentence. The court declined that request, and resentenced him to the original (illegal) term of 3 to 6 years.

On appeal from resentence, the Fourth Department affirmed in a split decision. The majority held that it was not the defendant's option to pick his remedy, but up to the trial court to determine whether to offer vacatur or resentence to the legal sentence. Since the court offered vacatur and the defendant declined, it was free to re-impose the illegal sentence (60 AD3d 1435). The minority dissented on the grounds that "plain logic does not support an unencumbered remittal permiting the court to impose the enhanced sentence that we concluded was illegal."

Come to find out, plain logic is not so plain. The Court of Appeals decided that the sentencing court properly resentenced Mr. Maliszewski to the illegal sentence, since he was offered the chance to withdraw his plea and chose not to do so. Thus the old adage, no bad punishment goes unpunished (for the defendant).

Thursday, September 10, 2009

Maybe TOD Motions Are Not Always Required

As you know, it has long been held that counsel fails to preserve for appellate review legal insufficiency claims when he has failed to raise the issue in a specific TOD motion (see, People v Gray, 86 NY2d 10 [1995]). However, CPL 290.10, which governs TOD motions, gives courts the authority to grant TODs only when the evidence is not only legally insufficient as to the charged offense but also insufficient to support a conviction for a lesser. A court has no authority to grant a TOD if the evidence is sufficient to support a lesser. Thus, for example, a court has no authority to grant a TOD motion on a depraved indifference murder charge in which the evidence is sufficient as to recklessness but insufficient as to depravity because the evidence is sufficient to support a conviction for manslaughter in the second degree.

Given the lack of possible remedy, why should defense counsel be expected to make a TOD motion to challenge a charge in instances where the evidence is legally insufficient as to the charge but not its lesser? In such instances, the motion would be frivolous (as the court has no authority to grant it given the evidence is sufficient to support a lesser, though not sufficient to support the charged offense). Since the trial court could not have granted a TOD motion in such circumstances, on appeal where there was insufficient evidence to support the charge, but sufficient evidence to support a lesser included offense, one should argue that interest of justice dictates review of this unpreserved legal sufficiency issue. Additionally, one should also argue that the legal insufficiency issue ought to be reviewed as a question of law despite the lack of of a specific TOD motion because requiring such a motion to have been made when the trial court could not grant relief is to require the defendant to make a frivolous motion. A similar argument prevailed in the Court of Appeal case of People v Loree (8 NY3d 541, 545-546 [2007]) regarding preservation of PRS plea issues:

"We similarly conclude that where a trial judge does not fulfill the obligation to advise a defendant of postrelease supervision during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a postallocution motion. In so deciding, we cannot shut our eyes to the actual or practical unavailability of either a motion to withdraw the plea under CPL 220.60(3), or a motion to vacate the judgment of conviction under CPL 440.10 in these cases. If the trial judge does not mention postrelease supervision at the allocution, as happened here, a defendant can hardly be expected to move to withdraw his plea on a ground of which he has no knowledge. But if the trial judge informs the defendant of postrelease supervision during the course of sentencing, as also happened here, a defendant may no longer move to withdraw the plea since a motion may only be made under CPL 220.60(3) “[a]t any time before the imposition of sentence” (emphasis added). Finally, the omission at issue is clear from the face of the record and therefore not properly raised in a CPL article 440 motion."

Written by Drew R. DuBrin, Special Assistant Monroe County Public Defender

Sunday, September 6, 2009

Deconstructing McDaniel - Ineffective Assistance and Failure to Make A Specific Motion for a Trial Order of Dismissal

In People v McDaniel (54 AD3d 577 [1st Dept 2008]) the First Department divided 3-2 as to whether there was sufficient proof of the display of a weapon to constitute Robbery in the First Degree.

Apparently, the issue which divided the Appellate Division was not clearly preserved in a motion for a trial order of dismissal. Consequently, the issue before the Court of Appeals was whether it was ineffective assistance of counsel to fail to preserve the issue. In affirming the conviction, at People v McDaniel (_ NY3d_, 2009 NY Slip Op 06369 [9/1/09]), the Court of Appeals held that

Because defense counsel's decision not to seek dismissal of the robbery in the first degree charge for insufficient evidence would not have resulted in a dismissal of that charge (see People v Lopez, 73 NY2d 214, 219-220 [1989]; People v Baskerville, 60 NY2d 374, 380-381 [1983]), defendant's claim of ineffective assistance of counsel is meritless. Furthermore, the attorney's conduct did not consist of "egregious and prejudicial error such that defendant did not receive a fair trial" (People v Benevento, 91 NY2d 708, 713 [1998], citing People v Flores, 84 NY2d 184, 188-189 [1994]), but rather "viewed in totality and as of the time of the representation, reveal[s] that the attorney provided meaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]).

What does that mean? It would seem that the first sentence refers to the fact that. pursuant to CPL 290.10, a motion for a trial order of dismissal should not be granted if the evidence is legally sufficient to establish a lesser included offense. Since Lopez and Baskerville make clear that if the element of display was not proved the defendant would still be guilty of Robbery in the Third Degree.

So the motion would not have been granted on appeal. But since “CPL 470.15(2)(a) authorizes an appellate court to modify a judgment by reducing a conviction to a lesser included offense if it determines the evidence is insufficient to support a conviction for the greater offense but sufficient to establish defendant's guilt of the lesser “ (People v Hawkins, 99 NY2d 592 [2003]) and the prerequisite for doing that is preservation of the issue by an appropriate motion for a trial order of dismissal why is a claim of ineffective assistance which focuses on the failure to preserve the that evidence does not support the B Felony of Robbery in the First Degree meritless? What strategy can possibly justify such a failure?

And is the Court of Appeals unaware of the irony in its citation to People v Flores, 84 NY2d 184, 188-189 [1994]) for the holding that attorney provided meaningful representation when, subsequent to that Court’s holding in Flores, the Second Circuit Court of Appeal, in Flores v Demskie (215 F3d 293 [2d Cir 2000]) granted Mr. Flores habeas corpus relief on the ground, rejected by the New York Court of Appeals, that Mr. Flores had been denied the effective assistance of counsel?

Tuesday, September 1, 2009

Improper for Police to Extend Traffic Stop Without Reasonable Suspicion

Last Friday a divided Appellate Division, Fourth Department ruled that an extended investigation resulting from a tinted-windows stop was illegal, and suppressed drugs, dismissed drug possession, assault 2, resisting arrest and OGA convictions as a result (People v Edwards, 2009 WL 2635784 [4th Dept 8/28/09]).

Deputies stopped Mr. Edwards for having excessively tinted windows. After using the tint meter, deputies determined that he appeared more nervous than a simple traffic stop warranted, presumably using the nervousness meter. They delayed issuing the traffic ticket to permit them to conduct further investigation. What the Appellate Division termed "the alleged observations of crumbs of crack cocaine on the defendant's right palm" occurred during this extended investigation. Deputies demanded that Mr. Edwards exit the vehicle and surrender his keys, but did not indicate that he was under arrest. When he refused to give up his keys, police attempted to "brace defendant up against his vehicle and a struggle ensued" They all fell, a deputy was injured so Assault in the Second Degree charges resulted, along with Resisting and Obstructing Governmental Administration (OGA). Half a pound of cocaine was found in the car.

The Appellate Division ruled 3-2 that the "detention of defendant was unlawful by the time of the alleged assault, therefore the deputies were not engaged in the performance of a lawful duty", ergo dismiss the felony assault charge. For Resisting Arrest, the arrest must be authorized, so ditto that. OGA requires that police be engaged in "authorized conduct", making three for three, and the drugs found later had to be suppressed, made it a clean sweep. The crux of the ruling was that the prosecution did not establish at the hearing that the police "had reasonable suspicion to extend the traffic stop after its initial justification was exhausted".

The dissent distinguishes prior cases such as People v Banks (85 NY2d 558 [1995]) by noting that in Banks the police admitted that they had already decided to issue a ticket, and the deputy made his alleged observations before the defendant had been told he was getting a ticket for illegal tint. The dissenters, including Presiding Justice Scudder, wpuld have held that defendant's excessive nervousness rendered the police well within their rights to continue the investigation, which did not require reasonable suspicion, and that keeping the defendant did not constitute detention. The dissenters would have held that the third approach to the defendant's car "at most constituted only an approach to inquire pursuant to the first level of De Bour", meaning it was as though the defendant had parked voluntarily along the side of the road and the cops simply wanted to know why.

With two dissenters, one of them the presiding justice, odds are good that the prosecution will be granted leave.

Written by Jim Eckert, Assistant Monroe County Public Defender

Friday, August 28, 2009

Parole Cannot Be Denied Solely Due To Seriousness of Crime

In Matter of Johnson v New York State Div. of Parole (2009 NY Slip Op 06359 [4th Dept 8/27/09]) an appeal from the dismissal of an Article 78 petition challenging the denial of parole, the Fourth Department reversed and ordered a new parole hearing upon a finding that the Parole Board failed to weigh all of the relevant statutory factors and that there is "a strong indication that the denial of petitioner's application was a foregone conclusion." The Court explained that

Although parole release determinations are discretionary, the Parole Board is required "to give fair consideration to each of the applicable statutory factors as to every person who comes before it, and where the record convincingly demonstrates that the [Parole] Board did in fact fail to consider the proper standards, the courts must intervene" (citations omitted)." In this case,

the only reason for the Parole Board's denial of parole that is discernable from the perfunctory reference to "[t]he violence associated with this terrible crime" is that the determination was based solely upon the seriousness of the crime. "The Legislature, however, has not defined seriousness of [the] crime' in terms of specific categories of either crimes or victims and it is apparent that in order to preclude the granting of parole exclusively on this ground there must have been some significantly aggravating or egregious circumstances surrounding the commission of the particular crime" (citation omitted). Here, the mere reference to the violence of the crime, without elaboration, does not constitute the requisite "aggravating circumstances beyond the inherent seriousness of the crime itself" (id.). Further, the record is devoid of any indication that the Parole Board in fact considered the statutory factors that weighed in favor of petitioner's release, such as petitioner's exemplary institutional record and the favorable remarks of County Court at the time of sentencing. In fact, during the notably truncated hearing, the Parole Board focused on matters unrelated to any statutory factor.

Sunday, August 23, 2009

Crawford and Lab Reports -- Settled?

In 2004, the United States Supreme Court, in Crawford v. Washington (541 U.S. 36 [2004]), overruled its prior holding in Ohio v Roberts ( 41 U.S. 36 [2004]) that reliability of hearsay evidence is the test for admissibility, and held that “Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination…. [T]he only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”

In holdings which limited the impact of the Crawford hold state courts have frequently looked at the issue of reliability in determining whether evidence was testimonial and subject to confrontation. For example the Court of Appeals in People v Rawlins and People v Meekins (10 N.Y.3d 136 [2/19/2008]), considered how Crawford applies two categories of evidence: DNA reports and , fingerprints, comparisons. The Court held that the test for testimonial evidence under Crawford is not the expectation of the declarant that the statement would be used in court. Rather, the Court of Appeals in Rawlins held that the Crawford test for testimonial has three primary factors: we look not only to [1] the interrogator's primary purpose in questioning, but also, [2] in declarant's view, to the purpose the statement was intended to serve, and to [3] the motivation for the statement. Applying this test the Court held that fingerprint comparison reports are testimonial and the fact that they are kept in the ordinary course of business of the police is irrelevant. In Meekins the Court held that DNA profiles, as opposed to DNA comparisons, are not testimonial. The Court explained

the testing and procedures employed in this case were "neither discretionary nor based on opinion" nor did they concern the exercise of fallible human judgment over questions of cause and effect. This is not to say that errors could not have been made in the testing procedure itself. But those errors, if any, are not the product of "testimony" as we understand that term. Because the Gene Screen technicians only contemporaneously...Further, it is of no moment that the Gene Screen technicians knew or had every reason to know (because they were working on a rape kit) that their findings could generate results that could later be used at trial, nor that Gene Screen was performing work for law enforcement. Neither the prosecution nor law enforcement could have influenced the outcome; the government's involvement is inconsequential. Finally, the documents prepared by the Gene Screen technicians were not directly accusatory; none of them compared the DNA profile they generated to defendant's.

Was the Court correct? A variation of this issue was decided by the United States Supreme Court in Melendez-Diaz v. Massachusetts (129 S.Ct. 2527 [June 25, 2009]), in which the Court held that, under the Sixth Amendment, as interpreted in Crawford the Confrontation Clause requires that the expert who prepared a scientific report must be produced at trial so that the defendant has the opportunity to cross-examine the expert. The test for testimonial in Melendez-Diaz was that the statements were made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

So does this mean that the Court of Appeals was wrong in Meekins? Maybe not. After Melendez-Diaz was decided certiorari was denied in Meekins.

Also, the Court granted certiorari in Briscoe v Virginia where the issue is whether where a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness.

Some (here and here) have speculated that because Melendez-Diaz was a 5-4 decision with an unusual split (the majority was comprised of Scalia, Thomas, Souter, Stevens, and Ginsberg) and Souter is gone, replaced by Sotomayor, a former prosecutor, Briscoe might overturn Melendez-Diaz. Others are less concerned. Stay tuned.

Insufficient Protest To Insufficient Proof

In 1995, in People v Gray (86 NY2d 10 [1995]) the Court of Appeals held that a motion for a trial order of dismissal on the grounds of insufficiency of proof must specify the insufficiency in order to preserve the issue for review. When motion to dismiss is not sufficiently specific there is not a preserved issue of law before the appellate court (See People v Hawkins, 11 NY3d 484 [2008](discussed here).

One would think that fourteen years later defense attorneys would be familiar with and comply with the requirement that there be a specific motion for a trial order of dismissal. Based on the frequency of decisions in which the appellate court has held that the issue of sufficiency of proof raised on appeal was not preserved for review as a matter of law, it is clear that the holding of Gray had yet to become part of the DNA of defense counsel.

this is not hyperbole. In June and July, 2009, the Appellate Division, Fourth Department issued three packets of decisions. In all three packets there was a decision in which the trial attorney had not raised a specific motion for a trial order of dismissal. First, on June 5, 2009 in People v Joseph (63 AD3d 1658 [June 5, 2009]), then on June 12, 2009, in People v Mills (63 AD3d 1717 [June 12, 2009]) and, again on July 10, 2009 in People v Reome (2009 NY Slip Op 05804 [July 10, 2009]).

Since 1995 there have been more than 1500 such decisions statewide. In an effort to deal with this problem, Don Thompson and I will be lecturing at the Appellate Division, Fourth Department September 2009 trainer on appellate strategies when the attorney failed to preserve the issue. Then in October, I will be be presenting a CLE for NYSDA on the ethical implications of the failure of preserve the issue of insufficiency of proof.

Tuesday, June 30, 2009

New York Law as a Source of Rights

Last month,in People v Weaver (5/12/09)(discussed here, the Court of Appeals held that the New York Constitution requires that a warrant issued upon probable cause be issued before the police can monitor someone's whereabouts by surreptitiously attaching an electronic device (GPS) to that person's automobile. Thus New Yorkers need not worry that police without warrants or cause could attach such devices to their vehicles in New York and record the vehicles' minute by minute location.

In People v Buchanan (6/30/09) the Court again found that the New York Constitution provides protections that have not been clearly found under the United State Constitution.

The issue in Buchanan had appeared to be whether the use of a non-visible stun belt on a defendant in a murder trial because it was the judge's policy to use such devices where a defendant is charged with a serious crime deprived deprived the defendant of due process of law. The defendant relied on Deck v Missouri (544 US 622, 626 [2005]), in which the United States Supreme Court held that the Due Process Clause prohibits a state from confining a defendant in "visible shackles" during a criminal trial, unless a "special need," based on facts specific to the case, is shown. The People argued that Deck is distinguishable because the stun belt here was not visible to the jury.

The Court held that it did not need to resolve the applicability of Deck because

"we need not reach the constitutional issue, however, for we conclude as a matter of New York law that it is unacceptable to make a stun belt a routine adjunct of every murder trial, without a specifically identified security reason."

The court adopted a "rule that a stun belt may not be required unless the trial court makes findings on the record showing that the particular defendant before him needs such a restraint. A formal hearing may not be necessary, but the trial court must conduct a sufficient inquiry to satisfy itself of the facts that warrant the restraint." The Court did not state is this rule is of constitutional nature. Nor did it state the nature of rule making authority other than the constitution.

Regardless, the message for counsel should be clear - in addition to all other arguments, preserve claims as being based in rights under New York law.

Sunday, June 14, 2009

Conflicts Require Corrective Action, Not Just A Wink

In People v Connolly (2009 NY Slip Op 04822 6/12/09)the Court held that the grand jury proceeding was defective where
one of the grand jurors informed the prosecutor that she was the mother of one of the alleged victims and the mother-in-law of another. In addition, the grand juror's daughter had commenced a civil action against defendant, allegedly arising from the same facts that resulted in the instant indictment against defendant. Although the special prosecutor instructed the grand juror not to participate in any proceeding concerning those witnesses and not to listen to their testimony, she was permitted to remain in the grand jury room during the presentation of the remaining evidence concerning defendant and she heard defendant's testimony. She then was permitted to participate, consult and vote on all of the charges against defendant that did not involve her relatives.

The Court explained that

although the grand juror in question did not participate in the vote concerning the particular count of the indictment that pertained to her daughter and son-in-law, she participated in the remainder of the proceedings concerning defendant, including the vote to indict him on the remaining counts in the indictment. In addition, the daughter of the grand juror had a financial interest in defendant's indictment and conviction, arising from the pending civil action, and we conclude that potential prejudice arose from permitting the victims' family member to determine whether to indict defendant. The special prosecutor was therefore required to excuse the grand juror from participating in the case against defendant or to present the matter to the court.

This holding seems fairly obvious. What is not obvious is why the special prosecutor, appointed to avoid a conflict of interest, thought otherwise.

SORA: When Is Person Whom The Defendant Had Never Seen Before Not a Stranger

In People v Helmer (2009 NY Slip Op 04830 4th Dept 6/12/09) the sole issue was whether the victim was a stranger to defendant for purposes of determining whether defendant should have been assessed 20 points on the risk assessment instrument for risk factor 7, "[r]elationship with victim."

The Court held that despite the fact that it was undisputed that defendant and the 15 year old victim had sexual relations on the same day on which they had their first face-to-face meeting, she was not a stranger to the defendant. The Court based this holding on the fact that the defendant and the victim had communicated via the Internet and telephone for several weeks before they actually met in person.

Prior to meeting, they had more than 100 Internet exchanges and 30 telephone calls and through their communications, the victim knew defendant's name and age, as well as the status of defendant's pending divorce. The Court concluded that
The risk assessment guidelines provide that "the term stranger' includes anyone who is not an actual acquaintance of the victim" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 12 [2006]). The term "acquaintance" spans a range of social interactions, and we conclude in this case that, based upon the extensive communication through electronic means over a period of weeks and the information learned therein, defendant and the victim were not strangers when they engaged in sexual relations.

Thursday, June 11, 2009

Court of Appeals Allows Admission of Identification Evidence Which is Product of Suggestive Procedures Not Conducted by Police

In People v Adams (53 NY2d 241 [1981]) the Court of Appeals held that evidence of an unnecessarily suggestive police-arranged identification of a criminal suspect must be suppressed as a matter of State constitutional law. Unfortunately, despite the fact that misidentification is the single greatest cause of wrongful convictions, the Court of Appeals in People v Marte (2009 NY Slip Op 04741 June 11, 2009) held that no similar per se rule applies to a suggestive identification in which the police are not involved.

The Court did recognize that "suggestiveness originating with private citizens can create a risk of misidentification" and concluded that "Perhaps other safeguards would be appropriate in particular cases, and we do not rule out the possibility that a court, in balancing probative value against prejudicial effect, may find some testimony so unreliable that it is inadmissible."

There is a Court that has held that unreliable identification evidence is inadmissible. That Court is located in Washington, D.C. and has nine members. Way back in 1977 that Court held in Manson v Braithwaite (432 US 98 [1977]) that "reliability is the linchpin in determining the admissibility of identification."

The decision of the Court of Appeals not to apply a per se rule against the admission of identification evidence which is the product of suggestive identification procedures should not be read to permit the admission of unreliable identification evidence. One would think that, given the United States Constitution, as interpreted by the United States Supreme Court and the Supremacy Clause, unreliable identification is inadmissible in New York courts.

Monday, June 8, 2009

Charges For Which Defendant Was Acquitted Should Not Be Considered In Imposing Sentence

It should not surprise anyone that in People v Durand (2009 NY Slip Op 04476 4th Dept 6/5/09) the Court held that under New York law it was error for the lower court to have considered "the counts of burglary in the third degree and petit larceny, of which defendant was acquitted, when imposing the sentences on the criminal trespass counts (see People v Reeder, 298 AD2d 468, lv denied 99 NY2d 538; see also People v Rogers, 56 AD3d 1173, 1174)." (By contrast under a federal law, a sentencing court may consider conduct for which the defendant was acquitted, as long as that conduct had been proved by a preponderance of the evidence (US v Watts, 519 US 148 [1997]).

What grabbed my attention is that defense counsel failed to preserve that contention for the court's review. One would think that after the not guilty verdicts on those counts it would be upsetting to hear the judge reference them at sentencing. Fortunately, despite counsel's silence, the Fourth Department exercised its power to review that contention as a matter of discretion in the interest of justice, modified the judgment by vacating the sentence, and remitted the matter to County Court for resentencing.

Sunday, June 7, 2009

Jurisdictional Challenge to Superior Court Information Rejected

Mr. Hernandez challenged his conviction on the ground that the the superior court information (SCI) upon which he was prosecuted was jurisdictionally defective because he was not held for the action of a grand jury by the local criminal court as required by CPL 195.10 (1) (a). On appeal in People v Hernandez (2009 NY Slip Op 04570 4th Dept 6/5/2009) the Court finds that "the record establishes that defendant was arraigned by the local criminal court and that the matter was adjourned for further proceedings. There is no indication in the record that a preliminary hearing was held." So does the Court rule for Mr. Hernandez? No. The Court explained that
the record does establish that Supreme Court was satisfied with the waiver of the indictment and executed an order to that effect. We thus "may presume that the matter was properly before that court" (People v Chad S., 237 AD2d 986, lv denied 90 NY2d 856; see People v Hurd, 12 AD3d 1198, 1199, lv denied 4 NY3d 764).


But in both People v Chad S. (237 AD2d 986) and People v Hurd (12 A.D.3d 1198) the Court had found that "the record fails to establish that defendant did not waive a preliminary hearing, that a hearing was not held, or that the charges were still pending in City Court." there was no such finding in Hernandez, yet the Court reached same result, simply because of the presumption.

SORA Level Lowered on Finding of Improvident Exercise of Discretion

In People v Brewer (2009 NY Slip Op 04548 4th Dept 6/5/09) the Court reduced the defendant's SORA level from a level three to a level two even though the defendant was presumptively a level three risk pursuant to the risk assessment instrument. The Court ruled that the lower court's determination was not an "abuse of discretion" it was, under the circumstances, an "improvident exercise of discretion." The Court explained that
that there is clear and convincing evidence of special circumstances to warrant a downward departure from the presumptive risk level (see People v Weatherley, 41 AD3d 1238; see also People v Smith, 30 AD3d 1070). Defendant was 20 years old when he engaged in the underlying offense, i.e., sexual activity with a 16-year-old female who admitted that she willingly engaged in the sexual activity. There was no allegation or evidence of forcible compulsion. The record further establishes that this was defendant's first and only sex offense and that defendant was enrolled in sex offender counseling at the time of the SORA hearing.

Thus, the Court decided to "substitute [its] own discretion 'even in the absence of an abuse [of discretion]' (Matter of Von Bulow, 63 NY2d 221, 224)." Since this finding that there was an "improvident exercise of discretion" is an act of discretion, not a ruling on the law, it is not reviewable by the Court of Appeals. People v Baker, 64 NY2d 1027 (1985).

It is important for appellate counsel to realize that the discretionary authority of the Appellate Division is as broad as that of the trial court (Matter of Von Bulow, 63 NY2d 221, 225, n.; People v Belge, 41 NY2d 60) and when it is exercised it is not reviewable unless it is abused. People v Baker, 64 NY2d 1027 (1985).