Counsel needs to be aware that the the CJI charge for PL § 160.15 (3) is deficient and that failure to object to its language may result in a defendant being convicted on legally insufficient evidence.

The CJI charge for PL § 160.15 (3) is as follows

“Under our law, a person is guilty of Robbery in the First Degree when that person forcibly steals property and when, in the course of the commission of the crime [or of immediate flight therefrom], that person [or another participant in the crime] uses or threatens the immediate use of a dangerous instrument.”

This charge tracks the statutory elements. In 1980, the Court of Appeals held that although the statute (PL § 160.15 (3)) “is not explicit in that regard...the jury [considering such as charge is] required to find that [the defendant] actually possessed a dangerous instrument at the time of the crime. People v. Pena, 50 NY2d 400 [1980].

Yet, in People v Ford (__ NY3d __, 2008 NY Slip Op 09856 [2008]) a 4-3 decision rendered on December 17, 2008, the Court held that where the trial court instructed the jury, pursuant to the above quoted language from the CJI, the instruction, which did not use the term "actual possession," failed to

convey that requirement to the jury. Although the jury instruction parroted the statute, we have previously noted that the ‘actual possession’ requirement is not explicit in the statute, but rather is based on judicial interpretation in decisional law.

Thus, the Court held that the conviction could be affirmed, even if there was legally insufficient proof of actual possession, since there was “legally sufficient evidence to establish that defendant 'used or threatened the immediate use' of a knife in the course of the robbery, as the trial court charged.”

Counsel needs to be aware that the the CJI charge for PL § 160.15 (3) is deficient and that failure to object to its language may result in a defendant being convicted on legally insufficient evidence.

The CJI charge for PL § 160.15 (3) is as follows

“Under our law, a person is guilty of Robbery in the First Degree when that person forcibly steals property and when, in the course of the commission of the crime [or of immediate flight therefrom], that person [or another participant in the crime] uses or threatens the immediate use of a dangerous instrument.”

This charge tracks the statutory elements. In 1980, the Court of Appeals held that although the statute (PL § 160.15 (3)) “is not explicit in that regard...the jury [considering such as charge is] required to find that [the defendant] actually possessed a dangerous instrument at the time of the crime. People v. Pena, 50 NY2d 400 [1980].

Yet, in People v Ford (__ NY3d __, 2008 NY Slip Op 09856 [2008]) a 4-3 decision rendered on December 17, 2008, the Court held that where the trial court instructed the jury, pursuant to the above quoted language from the CJI, the instruction, which did not use the term "actual possession," failed to

convey that requirement to the jury. Although the jury instruction parroted the statute, we have previously noted that the ‘actual possession’ requirement is not explicit in the statute, but rather is based on judicial interpretation in decisional law.

Thus, the Court held that the conviction could be affirmed, even if there was legally insufficient proof of actual possession, since there was “legally sufficient evidence to establish that defendant 'used or threatened the immediate use' of a knife in the course of the robbery, as the trial court charged.”

Brian Shiffrin wins the Nathaniel Award, joins Easton Thompson Kasperek Shiffrin LLP

Congratulations to our friend and colleague Brian Shiffrin, the 2008 Nathaniel Award recipient. The Nathaniel Award recognizes and rewards an attorney's significant contribution to the administration of justice, above and beyond the daily responsibilities of his job.

This year Brian retires from the Monroe County Public Defender's Office following a long and distinguished career of service to the advancement of justice and the indigent litigants in Monroe County. Brian has served as the attorney in charge of the Monroe County Public Defender Appeals Bureau for over twenty-five years and has written or supervised the perfection of more than four thousand criminal and family court appeals. He has argued appeals in numerous courts, including the New York Court of Appeals and the United States Supreme Court. For the last ten years, he has also served as First Assistant Monroe County Public Defender. Criminal appellate clients, other appellate counsel, and the courts have markedly benefitted from Brian's advocacy and commitment to justice. For over 25 years in our criminal appellate community, Brian has been the most-readily identifiable tide that has lifted all boats. Congratulations to Brian on this well-deserved recognition.

We are pleased to announce that on January 1, 2009, Brian Shiffrin joined Easton Thompson Kasperek Shiffrin LLP as a partner, where he will continue to concentrate his practice in appeals and post-conviction representation.

Brian Shiffrin wins the Nathaniel Award, joins Easton Thompson Kasperek Shiffrin LLP

Congratulations to our friend and colleague Brian Shiffrin, the 2008 Nathaniel Award recipient. The Nathaniel Award recognizes and rewards an attorney's significant contribution to the administration of justice, above and beyond the daily responsibilities of his job.

This year Brian retires from the Monroe County Public Defender's Office following a long and distinguished career of service to the advancement of justice and the indigent litigants in Monroe County. Brian has served as the attorney in charge of the Monroe County Public Defender Appeals Bureau for over twenty-five years and has written or supervised the perfection of more than four thousand criminal and family court appeals. He has argued appeals in numerous courts, including the New York Court of Appeals and the United States Supreme Court. For the last ten years, he has also served as First Assistant Monroe County Public Defender. Criminal appellate clients, other appellate counsel, and the courts have markedly benefitted from Brian's advocacy and commitment to justice. For over 25 years in our criminal appellate community, Brian has been the most-readily identifiable tide that has lifted all boats. Congratulations to Brian on this well-deserved recognition.

We are pleased to announce that on January 1, 2009, Brian Shiffrin joined Easton Thompson Kasperek Shiffrin LLP as a partner, where he will continue to concentrate his practice in appeals and post-conviction representation.

In two related appeals, the defendant in People v Tuszynski (2008 NY Slip Op 10264 [12/31/08]) and (2008 NY Slip Op 10265 [12/31/08]) challenged the consecutive sentences he received pursuant to a plea bargain for two DWI convictions stemming form the same drive, at different times. The court agreed with the defendant that

the sentences of two consecutive terms of imprisonment of 1 to 4 years are illegal on the ground that his operation of a motor vehicle while intoxicated consisted of a single, continuous act. Penal Law § 70.25 (2) requires that sentences imposed for two or more offenses must run concurrently when the offenses are 'committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other.'

However, the remedy for this illegality is not an order that the sentences run concurrently. Instead, inasmuch as defendant's sentence in each appeal was imposed pursuant to a plea agreement, the Court remitted each matter to County Court to resentence defendant or to "entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety."

Before attacking a plea or a bargained for sentence on grounds that it was unlawful, counsel must warn clients that winning the appeal might result in the plea being vacated and their going to trial.

In two related appeals, the defendant in People v Tuszynski (2008 NY Slip Op 10264 [12/31/08]) and (2008 NY Slip Op 10265 [12/31/08]) challenged the consecutive sentences he received pursuant to a plea bargain for two DWI convictions stemming form the same drive, at different times. The court agreed with the defendant that

the sentences of two consecutive terms of imprisonment of 1 to 4 years are illegal on the ground that his operation of a motor vehicle while intoxicated consisted of a single, continuous act. Penal Law § 70.25 (2) requires that sentences imposed for two or more offenses must run concurrently when the offenses are 'committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other.'

However, the remedy for this illegality is not an order that the sentences run concurrently. Instead, inasmuch as defendant's sentence in each appeal was imposed pursuant to a plea agreement, the Court remitted each matter to County Court to resentence defendant or to "entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety."

Before attacking a plea or a bargained for sentence on grounds that it was unlawful, counsel must warn clients that winning the appeal might result in the plea being vacated and their going to trial.

During the plea colloquy with County Court merely asked defendant whether he understood that he was "waiving [his] right to appeal," and defendant responded, "[y]es, I am." The Court in People v Springstead (2008 NY Slip Op 10279 [4th Dept 12/31/08]) agreed with defendant "that his waiver of the right to appeal is invalid inasmuch as the court failed to 'engage[] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice.'"

During the plea colloquy with County Court merely asked defendant whether he understood that he was "waiving [his] right to appeal," and defendant responded, "[y]es, I am." The Court in People v Springstead (2008 NY Slip Op 10279 [4th Dept 12/31/08]) agreed with defendant "that his waiver of the right to appeal is invalid inasmuch as the court failed to 'engage[] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice.'"

In three separate cases decided on December 31. 2008, the Appellate Division, Fourth Department, held that the lower courts erred in denying motions for suppression of evidence.

In People v Ervin (2008 NY Slip Op 10281 [4th Dept 12/31/08], the Court applied Chapple-Bethea and held that the suppression court

erred in refusing to suppress a statement made by defendant in the police vehicle while en route to the police station and in refusing to suppress his written statement made at the police station after he had waived his Miranda rights. The evidence presented at the suppression hearing establishes that defendant was in custody in the police vehicle when the arresting officer asked him questions about his life and his church (see People v Paulman, 5 NY3d 122, 129; People v Yukl, 25 NY2d 585, 589, cert denied 400 US 851),and the People failed to establish that the arresting officer's questions did not constitute interrogation or its functional equivalent (see Rhode Island v Innis, 446 US 291, 301; People v Ferro, 63 NY2d [*2]316, 321, cert denied 472 US 1007). Although defendant waived his Miranda rights prior to questioning at the police station by a different police officer, the arresting officer was present throughout that questioning and again asked defendant about his life and his church. We conclude that there was not 'such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning'(People v Chapple, 38 NY2d 112, 115; see People v Bethea, 67 NY2d 364, 366; cf. Paulman, 5 NY3d at 131).

In People v Stock (2008 NY Slip Op 10300 [4th Dept 12/31/08]), the Court held that the police lacked the requisite reasonable suspicion to stop defendant's vehicle, where

[a]ccording to the suppression hearing testimony of the police officer who stopped the vehicle driven by defendant, he observed defendant shortly after midnight as she was leaving the parking lot of a group home and was pulling onto a roadway. The officer testified that he believed that defendant's presence at that location was suspicious because the group home had been closed for renovations, the parking lot was empty, and he had not observed vehicles in that parking lot on previous night patrols. After following defendant's vehicle for a short distance, the officer pulled the vehicle over, whereupon he noticed that defendant smelled of alcoholic beverages, was slurring her speech, and had glassy eyes. The officer testified, however, that he did not observe defendant driving erratically or violating any traffic laws before stopping her vehicle.

The Court held that the People's contention that the stop was justified because defendant was leaving the parking lot of a closed group home shortly after midnight lacks merit.

That fact alone, which is in effect no more than a '[m]ere hunch' or gut reaction,' ' is insufficient to create the requisite reasonable suspicion that criminal activity was afoot (citations omitted).

Further, the Court held that since "our determination results in the suppression of all evidence supporting the crimes charged, the indictment must be dismissed (citation omitted)."

Finally, in People v Christianson (2008 NY Slip Op 10269 [4th Dept 12/31/08]), the Court held that a warrantless entry and search of defendant's home could not be justified under the emergency doctrine, where

at the time the Sheriff's Deputy arrived at defendant's home, the fire officials had extinguished the blaze, ventilated the home, and determined the origin of the fire. Moreover, the Fire Chief testified at the suppression hearing that he called for the Sheriff's Deputy to investigate other safety concerns, such as the locked interior door and boarded-up windows. Those concerns, however, did not pose an immediate threat to defendant and thus do not fall within the purview of the emergency exception to the warrant requirement (citations omitted).

Further, the Court held that the People did not meet their heavy burden of establishing that a suspect voluntarily consented to a search, where the Sheriff's Deputy testified at the suppression hearing that defendant did not consent to his entrance.

Although the People contend that defendant never demanded that the Sheriff's Deputy leave, we conclude under the circumstances of this case that, without more, the failure to demand that the Sheriff's Deputy leave did not amount to "a true act of the will[ or] an unequivocal product of an essentially free and unconstrained choice" (People v Gonzalez<, 39="" ny2d="" 122,="" 128).="" we="" therefore="" conclude="" that="" the="" physical="" evidence="" was="" illegally="" seized="" and="" must="" be="" suppressed,="" "[d]efendant's="" statements="" also="" suppressed="" as="" fruit="" of="" poisonous="" tree"="" (citation="" omitted).="" <="" blockquote="">

In three separate cases decided on December 31. 2008, the Appellate Division, Fourth Department, held that the lower courts erred in denying motions for suppression of evidence.

In People v Ervin (2008 NY Slip Op 10281 [4th Dept 12/31/08], the Court applied Chapple-Bethea and held that the suppression court

erred in refusing to suppress a statement made by defendant in the police vehicle while en route to the police station and in refusing to suppress his written statement made at the police station after he had waived his Miranda rights. The evidence presented at the suppression hearing establishes that defendant was in custody in the police vehicle when the arresting officer asked him questions about his life and his church (see People v Paulman, 5 NY3d 122, 129; People v Yukl, 25 NY2d 585, 589, cert denied 400 US 851),and the People failed to establish that the arresting officer's questions did not constitute interrogation or its functional equivalent (see Rhode Island v Innis, 446 US 291, 301; People v Ferro, 63 NY2d [*2]316, 321, cert denied 472 US 1007). Although defendant waived his Miranda rights prior to questioning at the police station by a different police officer, the arresting officer was present throughout that questioning and again asked defendant about his life and his church. We conclude that there was not 'such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning'(People v Chapple, 38 NY2d 112, 115; see People v Bethea, 67 NY2d 364, 366; cf. Paulman, 5 NY3d at 131).

In People v Stock (2008 NY Slip Op 10300 [4th Dept 12/31/08]), the Court held that the police lacked the requisite reasonable suspicion to stop defendant's vehicle, where

[a]ccording to the suppression hearing testimony of the police officer who stopped the vehicle driven by defendant, he observed defendant shortly after midnight as she was leaving the parking lot of a group home and was pulling onto a roadway. The officer testified that he believed that defendant's presence at that location was suspicious because the group home had been closed for renovations, the parking lot was empty, and he had not observed vehicles in that parking lot on previous night patrols. After following defendant's vehicle for a short distance, the officer pulled the vehicle over, whereupon he noticed that defendant smelled of alcoholic beverages, was slurring her speech, and had glassy eyes. The officer testified, however, that he did not observe defendant driving erratically or violating any traffic laws before stopping her vehicle.

The Court held that the People's contention that the stop was justified because defendant was leaving the parking lot of a closed group home shortly after midnight lacks merit.

That fact alone, which is in effect no more than a '[m]ere hunch' or gut reaction,' ' is insufficient to create the requisite reasonable suspicion that criminal activity was afoot (citations omitted).

Further, the Court held that since "our determination results in the suppression of all evidence supporting the crimes charged, the indictment must be dismissed (citation omitted)."

Finally, in People v Christianson (2008 NY Slip Op 10269 [4th Dept 12/31/08]), the Court held that a warrantless entry and search of defendant's home could not be justified under the emergency doctrine, where

at the time the Sheriff's Deputy arrived at defendant's home, the fire officials had extinguished the blaze, ventilated the home, and determined the origin of the fire. Moreover, the Fire Chief testified at the suppression hearing that he called for the Sheriff's Deputy to investigate other safety concerns, such as the locked interior door and boarded-up windows. Those concerns, however, did not pose an immediate threat to defendant and thus do not fall within the purview of the emergency exception to the warrant requirement (citations omitted).

Further, the Court held that the People did not meet their heavy burden of establishing that a suspect voluntarily consented to a search, where the Sheriff's Deputy testified at the suppression hearing that defendant did not consent to his entrance.

Although the People contend that defendant never demanded that the Sheriff's Deputy leave, we conclude under the circumstances of this case that, without more, the failure to demand that the Sheriff's Deputy leave did not amount to "a true act of the will[ or] an unequivocal product of an essentially free and unconstrained choice" (People v Gonzalez<, 39="" ny2d="" 122,="" 128).="" we="" therefore="" conclude="" that="" the="" physical="" evidence="" was="" illegally="" seized="" and="" must="" be="" suppressed,="" "[d]efendant's="" statements="" also="" suppressed="" as="" fruit="" of="" poisonous="" tree"="" (citation="" omitted).="" <="" blockquote="">

Erroneous information in presentence reports can have all sorts of negative consequences to a defendant. Thus, when inaccurate, prejudicial information is in a presentence reports, it is critical that counsel seek to have the report amended. Critically, it is the trial court counsel, who must seek the changes. As the Fourth Department, held in People v Hall, 2008 NY Slip Op 10361 [12/21/08], if such relief is not sought at the lower court, the issue is not preserved for review:

defendant contends that the presentence report should be amended because, according to defendant, it contains inaccurate assertions and unsupported speculation that "are likely to prejudice [defendant] for years to come" (see generally People v Harrington, 3 AD3d 737, 739). Defendant failed to preserve that contention for our review, and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

Erroneous information in presentence reports can have all sorts of negative consequences to a defendant. Thus, when inaccurate, prejudicial information is in a presentence reports, it is critical that counsel seek to have the report amended. Critically, it is the trial court counsel, who must seek the changes. As the Fourth Department, held in People v Hall, 2008 NY Slip Op 10361 [12/21/08], if such relief is not sought at the lower court, the issue is not preserved for review:

defendant contends that the presentence report should be amended because, according to defendant, it contains inaccurate assertions and unsupported speculation that "are likely to prejudice [defendant] for years to come" (see generally People v Harrington, 3 AD3d 737, 739). Defendant failed to preserve that contention for our review, and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

In a reminder that there are real risks to appealing when a defendant received a sentence less than the law requires, the Fourth Department in People v Allen, 2008 NY Slip Op 10267 [12/21/08] held that the sentence was unlawfully short and remitted the case for resentencing. Of note, this issue was not raised by the parties:

We further conclude, however, that the sentence imposed on the count of criminal possession of a controlled substance in the fourth degree is illegal and cannot stand. We note that, because the sentence is illegal, we reach this issue despite defendant's failure to raise it either at the time of sentencing or on appeal (see People v Adams, 45 AD3d 1346; People v Martinez, 213 AD2d 1072). Pursuant to Penal Law § 70.70 (3) (b), the sentence imposed for a second felony drug offender convicted of, inter alia, a class C felony offense must include a period of not less than 1½ or more than 3 years of postrelease supervision. Although criminal possession of a controlled substance in the fourth degree is a class C felony and defendant was a second felony drug offender, County Court failed to include a period of postrelease supervision in sentencing defendant on that count. We therefore modify the judgment by vacating the sentence imposed for criminal possession of a controlled substance in the fourth degree, and we remit the matter to County Court for resentencing on count three of the indictment (see People v Sparber, 10 NY3d 457, 469). Inasmuch as the plea agreement provided in relevant part that [*2]defendant would be sentenced to a three-year period of postrelease supervision, defendant need not be afforded the opportunity to withdraw her plea of guilty prior to resentencing (cf. People v Waggoner, 53 AD3d 1143).

In a reminder that there are real risks to appealing when a defendant received a sentence less than the law requires, the Fourth Department in People v Allen, 2008 NY Slip Op 10267 [12/21/08] held that the sentence was unlawfully short and remitted the case for resentencing. Of note, this issue was not raised by the parties:

We further conclude, however, that the sentence imposed on the count of criminal possession of a controlled substance in the fourth degree is illegal and cannot stand. We note that, because the sentence is illegal, we reach this issue despite defendant's failure to raise it either at the time of sentencing or on appeal (see People v Adams, 45 AD3d 1346; People v Martinez, 213 AD2d 1072). Pursuant to Penal Law § 70.70 (3) (b), the sentence imposed for a second felony drug offender convicted of, inter alia, a class C felony offense must include a period of not less than 1½ or more than 3 years of postrelease supervision. Although criminal possession of a controlled substance in the fourth degree is a class C felony and defendant was a second felony drug offender, County Court failed to include a period of postrelease supervision in sentencing defendant on that count. We therefore modify the judgment by vacating the sentence imposed for criminal possession of a controlled substance in the fourth degree, and we remit the matter to County Court for resentencing on count three of the indictment (see People v Sparber, 10 NY3d 457, 469). Inasmuch as the plea agreement provided in relevant part that [*2]defendant would be sentenced to a three-year period of postrelease supervision, defendant need not be afforded the opportunity to withdraw her plea of guilty prior to resentencing (cf. People v Waggoner, 53 AD3d 1143).

In 2001, the New York Court of Appeals, in People v Hines, 97 NY2d 56 (2001), held that where a motion for a trial order of dismissal at the end of the People's case is denied and the defendant then presents proof, waives the claim that the proof presented by the People was insufficient, and instead a trial order of dismissal motion must be made and based on all of the proof presented, including that presented by the defendant. The Court held that by choosing to put on evidence, defendant waived his right to have only the People's evidence examined for legal sufficiency, and could not avoid the adverse evidence elicited during the defendant's case on his subsequent motion. The Court explained that "we have held that 'a defendant who does not rest after the court fails to grant a motion to dismiss at the close of the People's case, proceeds with the risk that he will inadvertently supply a deficiency in the people's case.' Thus, a defendant who presents evidence after a court has declined to grant a trial motion to dismiss made at the close of the People's case waives subsequent review of that determination. Consistent with the overall truth-seeking function of a jury trial, the rationale underlying this rule is that a reviewing court should not disturb a guilty verdict by reversing a judgment based on insufficient evidence without taking into account all of the evidence the jury considered in reaching that verdict, including proof adduced by the defense." People v Hines, 97 NY2d at 61.

Subsequently, as discussed in detail here, the Court of Appeals, relying on Hines has held in People v Lane, 7 NY3d 888, that a defendant's legal sufficiency arguments are not properly preserved for appellate review unless a motion for a trial order of dismissal is renewed at the close of all proof:

After defendant presented his own evidence, he did not renew his earlier argument. Consequently, whether the trial evidence was sufficient to support each element of the crime is not a question of law that this Court may review

.
Thus, the law in New York is clear. In order to preserve for review a claim of legally insufficient proof, counsel must not only make a specific T.O.D. motion at the conclusion of the People's case, but must renew that motion after presenting any proof, even proof irrelevant to the insufficiency.

So what if counsel, recognizing that the proof was insufficient, makes a T.O.D. motion at the close of the People's proof specifying the insufficiency, but fails to renew the motion after the presenting some proof. Is such an error, which results in a client's conviction upon legally insufficient proof being beyond review as a matter of law, ineffective assistance of counsel? Surely there can be no strategic reason for such error. And the catastrophic result of the error is the difference between a conviction and dismissal of the charge. The circumstances when a single error can result is a finding of ineffective assistance of counsel was considered by the Court of Appeals in People v Turner, 5 NY3d 476 (discussed here).

Very rarely, a single lapse by otherwise competent counsel compels the conclusion that a defendant was deprived of his constitutional right to effective legal representation. This is such a rare case, in which both defendant's trial and appellate lawyers failed to perceive that a statute of limitations defense would have prevented their client's manslaughter conviction....[T]he failure to raise a defense as clear-cut and completely dispositive as a statute of limitations . . ., in the absence of a reasonable explanation for it, is hard to reconcile with a defendant's constitutional right to the effective assistance of counsel.

(People v Turner, 5 NY3d 476, 481).

So is the failure to renew a legally correct T.O.D. motion the type of dispositive single error which constitutes ineffective assistance of counsel? The Fourth Department, has at least twice, rejected such claims.
As previously discussed (here), in September, in People v Wright (2007 NYSlipOp 07167) (here), in which the defendant contended that the evidence was legally insufficient to support the crime of depraved indifference murder because the People failed to establish the uncommon brutality and utter wantonness required for that crime, the Court held that

By failing to renew his motion to dismiss after presenting evidence, defendant failed to preserve that contention for our review (see People v Lane, 7 NY3d 888, 889; see also People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678).

In People v Agee, 2008 NY Slip Op 10387 [4th Dept 12/31/08] the Court rejected a claim that the failure to renew a T.O.D. motion based on the proof being legally insufficient to establish depraved assault was ineffective assistance of counsel, explaining that

viewing defense counsel's representation as a whole, we conclude that defendant received effective assistance of counsel (see People v Stultz, 2 NY3d 277, rearg denied 3 NY3d 702; People v Baldi, 54 NY2d 137, 147).

The Court of Appeals holding in Turner is neither discussed nor even cited.
Thus, Mr.Agee will serve a long prison sentence for a crime not proved. Wonder what he thinks of his trial counsel.

In 2001, the New York Court of Appeals, in People v Hines, 97 NY2d 56 (2001), held that where a motion for a trial order of dismissal at the end of the People's case is denied and the defendant then presents proof, waives the claim that the proof presented by the People was insufficient, and instead a trial order of dismissal motion must be made and based on all of the proof presented, including that presented by the defendant. The Court held that by choosing to put on evidence, defendant waived his right to have only the People's evidence examined for legal sufficiency, and could not avoid the adverse evidence elicited during the defendant's case on his subsequent motion. The Court explained that "we have held that 'a defendant who does not rest after the court fails to grant a motion to dismiss at the close of the People's case, proceeds with the risk that he will inadvertently supply a deficiency in the people's case.' Thus, a defendant who presents evidence after a court has declined to grant a trial motion to dismiss made at the close of the People's case waives subsequent review of that determination. Consistent with the overall truth-seeking function of a jury trial, the rationale underlying this rule is that a reviewing court should not disturb a guilty verdict by reversing a judgment based on insufficient evidence without taking into account all of the evidence the jury considered in reaching that verdict, including proof adduced by the defense." People v Hines, 97 NY2d at 61.

Subsequently, as discussed in detail here, the Court of Appeals, relying on Hines has held in People v Lane, 7 NY3d 888, that a defendant's legal sufficiency arguments are not properly preserved for appellate review unless a motion for a trial order of dismissal is renewed at the close of all proof:

After defendant presented his own evidence, he did not renew his earlier argument. Consequently, whether the trial evidence was sufficient to support each element of the crime is not a question of law that this Court may review

.
Thus, the law in New York is clear. In order to preserve for review a claim of legally insufficient proof, counsel must not only make a specific T.O.D. motion at the conclusion of the People's case, but must renew that motion after presenting any proof, even proof irrelevant to the insufficiency.

So what if counsel, recognizing that the proof was insufficient, makes a T.O.D. motion at the close of the People's proof specifying the insufficiency, but fails to renew the motion after the presenting some proof. Is such an error, which results in a client's conviction upon legally insufficient proof being beyond review as a matter of law, ineffective assistance of counsel? Surely there can be no strategic reason for such error. And the catastrophic result of the error is the difference between a conviction and dismissal of the charge. The circumstances when a single error can result is a finding of ineffective assistance of counsel was considered by the Court of Appeals in People v Turner, 5 NY3d 476 (discussed here).

Very rarely, a single lapse by otherwise competent counsel compels the conclusion that a defendant was deprived of his constitutional right to effective legal representation. This is such a rare case, in which both defendant's trial and appellate lawyers failed to perceive that a statute of limitations defense would have prevented their client's manslaughter conviction....[T]he failure to raise a defense as clear-cut and completely dispositive as a statute of limitations . . ., in the absence of a reasonable explanation for it, is hard to reconcile with a defendant's constitutional right to the effective assistance of counsel.

(People v Turner, 5 NY3d 476, 481).

So is the failure to renew a legally correct T.O.D. motion the type of dispositive single error which constitutes ineffective assistance of counsel? The Fourth Department, has at least twice, rejected such claims.
As previously discussed (here), in September, in People v Wright (2007 NYSlipOp 07167) (here), in which the defendant contended that the evidence was legally insufficient to support the crime of depraved indifference murder because the People failed to establish the uncommon brutality and utter wantonness required for that crime, the Court held that

By failing to renew his motion to dismiss after presenting evidence, defendant failed to preserve that contention for our review (see People v Lane, 7 NY3d 888, 889; see also People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678).

In People v Agee, 2008 NY Slip Op 10387 [4th Dept 12/31/08] the Court rejected a claim that the failure to renew a T.O.D. motion based on the proof being legally insufficient to establish depraved assault was ineffective assistance of counsel, explaining that

viewing defense counsel's representation as a whole, we conclude that defendant received effective assistance of counsel (see People v Stultz, 2 NY3d 277, rearg denied 3 NY3d 702; People v Baldi, 54 NY2d 137, 147).

The Court of Appeals holding in Turner is neither discussed nor even cited.
Thus, Mr.Agee will serve a long prison sentence for a crime not proved. Wonder what he thinks of his trial counsel.

Sometimes there are collateral consequences to restrictive rulings of a local court judge at a preliminary hearing limiting the scope of cross-examination of prosecution witnesses. In People v Harvey, 2008 NY Slip Op 10329 [4th Dept 12/31/08] the Fourth Department reversed defendant's convictions for criminal possession of a weapon in the second degree (Penal Law § 265.03 [former (2)]) and reckless endangerment in the first degree (§ 120.25) because

the court erred in admitting in evidence the preliminary hearing testimony of the victim. Although the People demonstrated due diligence in attempting to locate the victim for trial (see People v Arroyo, 54 NY2d 567, 571, cert denied 456 US 979), the court unduly restricted defense counsel's cross-examination of the victim at the preliminary hearing, and thus the admission in evidence of the preliminary hearing testimony deprived defendant of his right of confrontation (see People v Simmons, 36 NY2d 126, 130-131).

Sometimes there are collateral consequences to restrictive rulings of a local court judge at a preliminary hearing limiting the scope of cross-examination of prosecution witnesses. In People v Harvey, 2008 NY Slip Op 10329 [4th Dept 12/31/08] the Fourth Department reversed defendant's convictions for criminal possession of a weapon in the second degree (Penal Law § 265.03 [former (2)]) and reckless endangerment in the first degree (§ 120.25) because

the court erred in admitting in evidence the preliminary hearing testimony of the victim. Although the People demonstrated due diligence in attempting to locate the victim for trial (see People v Arroyo, 54 NY2d 567, 571, cert denied 456 US 979), the court unduly restricted defense counsel's cross-examination of the victim at the preliminary hearing, and thus the admission in evidence of the preliminary hearing testimony deprived defendant of his right of confrontation (see People v Simmons, 36 NY2d 126, 130-131).