Assault Charges Listing Multiple Acts Connected By And/Or Language Held Defective

In People v Bauman (2009 NY Slip Op 02265, 3/26/09) the Court of Appeals held that an indictment charging depraved indifference assault under Penal Law § 120.10 (3) which alleged eleven acts over an eight month period under one count violated Criminal Procedure Law (CPL) § 200.30 (1) because it was duplicitous.

The indictment charged two defendants with one count of intentional assault [*2]under Penal Law § 120.10 (1) (the first count) for allegedly causing injury to victim by means of "a baseball bat[,] and/or a frying pan[,] and/or a vacuum cleaner[,] and/or a hammer[,]" and one count of depraved indifference assault under Penal Law § 120.10 (3) (the second count) for allegedly "striking [victim] about the head and body with fists and/or a baseball bat and/or a hammer; and/or burning said person with a frying pan; and/or scalding said person with hot water; and/or placing a vacuum cleaner hose on said person's genital area; and/or providing inappropriate and/or inadequate nutrition; and/or subjecting said person to inadequate and/or inappropriate living conditions; and/or failing to seek medical attention" during a period from August 1, 2004 to April 7, 2005.

The Court held that the depraved indifference assault charge

was pleaded in a manner which made it duplicitous. This count, alleging eleven incidents over an eight month period, encompassed "such a multiplicity of acts ... as to make it virtually impossible to determine the particular act of [assault] ... as to which [a] jury [could] reach a unanimous verdict" (id. at 421). The first count is similarly defective. Were these counts to stand as pleaded, "individual jurors might vote to convict ... defendant[s] of [each] count on the basis of different offenses" and "defendant[s] would thus stand convicted under [each] count even though the jury may never have reached a unanimous verdict as to any of the offenses" (id. at 418).

The Court explained that depraved indifference assault can be a continuing crime and that the element of depravity can be alleged by establishing that defendant engaged in a course of conduct over a period of time. However, the People's use of the conjunction "and/or" between each act means that "a jury could just as easily find that defendants committed only one of the alleged acts; not only would a single act not be sufficient to establish a course of conduct but we still would not know on which particular act defendant was convicted."

The decision does not state how such conduct should be described in an indictment,

Assault Charges Listing Multiple Acts Connected By And/Or Language Held Defective

In People v Bauman (2009 NY Slip Op 02265, 3/26/09) the Court of Appeals held that an indictment charging depraved indifference assault under Penal Law § 120.10 (3) which alleged eleven acts over an eight month period under one count violated Criminal Procedure Law (CPL) § 200.30 (1) because it was duplicitous.

The indictment charged two defendants with one count of intentional assault [*2]under Penal Law § 120.10 (1) (the first count) for allegedly causing injury to victim by means of "a baseball bat[,] and/or a frying pan[,] and/or a vacuum cleaner[,] and/or a hammer[,]" and one count of depraved indifference assault under Penal Law § 120.10 (3) (the second count) for allegedly "striking [victim] about the head and body with fists and/or a baseball bat and/or a hammer; and/or burning said person with a frying pan; and/or scalding said person with hot water; and/or placing a vacuum cleaner hose on said person's genital area; and/or providing inappropriate and/or inadequate nutrition; and/or subjecting said person to inadequate and/or inappropriate living conditions; and/or failing to seek medical attention" during a period from August 1, 2004 to April 7, 2005.

The Court held that the depraved indifference assault charge

was pleaded in a manner which made it duplicitous. This count, alleging eleven incidents over an eight month period, encompassed "such a multiplicity of acts ... as to make it virtually impossible to determine the particular act of [assault] ... as to which [a] jury [could] reach a unanimous verdict" (id. at 421). The first count is similarly defective. Were these counts to stand as pleaded, "individual jurors might vote to convict ... defendant[s] of [each] count on the basis of different offenses" and "defendant[s] would thus stand convicted under [each] count even though the jury may never have reached a unanimous verdict as to any of the offenses" (id. at 418).

The Court explained that depraved indifference assault can be a continuing crime and that the element of depravity can be alleged by establishing that defendant engaged in a course of conduct over a period of time. However, the People's use of the conjunction "and/or" between each act means that "a jury could just as easily find that defendants committed only one of the alleged acts; not only would a single act not be sufficient to establish a course of conduct but we still would not know on which particular act defendant was convicted."

The decision does not state how such conduct should be described in an indictment,

In People v Flinn (2009 NY Slip Op 02031 [4th Dept 3/20/09]), a defendant contended that his guilty plea was coerced by County Court's statements concerning the potential terms of incarceration in the event that defendant was convicted following a trial. Defendant had failed to raise that contention in support of his motion to withdraw the plea. Nor did he move to vacate the judgment of conviction on that ground. Despite this failure to preserve this issue, the Fourth Department reversed the conviction in the interests of justice. The Court explained

At the plea proceeding, the court stated that it would treat defendant "very differently as far as the sentence is concerned" if he exercised his right to a trial and that his sentence after trial would be "nothing like the sentence that [he] would get if [he] stood up and accepted [his] responsibility." The court further stated that defendant was "going to be sentenced [to] substantially longer than" the agreed-upon term of six years of imprisonment if he exercised his right to a trial. We agree with defendant that the court's statements do not amount to a description of the range of the potential sentences but, rather, they constitute impermissible coercion, "rendering the plea involuntary and requiring its vacatur" (People v Fanini, 222 AD2d 1111; see People v Stevens, 298 AD2d 267, 268, lv dismissed 99 NY2d 585; People v Wilson, 245 AD2d 161, 163, lv denied 91 NY2d 946).

Good work Gary Muldoon.

In People v Flinn (2009 NY Slip Op 02031 [4th Dept 3/20/09]), a defendant contended that his guilty plea was coerced by County Court's statements concerning the potential terms of incarceration in the event that defendant was convicted following a trial. Defendant had failed to raise that contention in support of his motion to withdraw the plea. Nor did he move to vacate the judgment of conviction on that ground. Despite this failure to preserve this issue, the Fourth Department reversed the conviction in the interests of justice. The Court explained

At the plea proceeding, the court stated that it would treat defendant "very differently as far as the sentence is concerned" if he exercised his right to a trial and that his sentence after trial would be "nothing like the sentence that [he] would get if [he] stood up and accepted [his] responsibility." The court further stated that defendant was "going to be sentenced [to] substantially longer than" the agreed-upon term of six years of imprisonment if he exercised his right to a trial. We agree with defendant that the court's statements do not amount to a description of the range of the potential sentences but, rather, they constitute impermissible coercion, "rendering the plea involuntary and requiring its vacatur" (People v Fanini, 222 AD2d 1111; see People v Stevens, 298 AD2d 267, 268, lv dismissed 99 NY2d 585; People v Wilson, 245 AD2d 161, 163, lv denied 91 NY2d 946).

Good work Gary Muldoon.

In People v Oberlander (2009 NY Slip Op 02020 [4th Dept 3/20/09]), the Fourth Department held that County Court abused its discretion in denying defendant's request for a brief continuance to present a witness who, according to defendant, would present critical testimony which, if credited would have negated an element of the crime charged. The Court explained that "by denying the request by defendant for a continuance, the court not only deprived her of 'the fundamental right to present [a] witness[] in [her] defense, but . . . effectively deprive[d her] of the defense itself and cast doubt upon [her] credibility' (People v Foy, 32 NY2d 473, 478)."

In People v Oberlander (2009 NY Slip Op 02020 [4th Dept 3/20/09]), the Fourth Department held that County Court abused its discretion in denying defendant's request for a brief continuance to present a witness who, according to defendant, would present critical testimony which, if credited would have negated an element of the crime charged. The Court explained that "by denying the request by defendant for a continuance, the court not only deprived her of 'the fundamental right to present [a] witness[] in [her] defense, but . . . effectively deprive[d her] of the defense itself and cast doubt upon [her] credibility' (People v Foy, 32 NY2d 473, 478)."

In October I wrote about the risks of moving, pursuant to People v Crawford (71 AD2d 38) and Anders v California (386 US 738), to be relieved as assigned appellate attorney on the ground that the case presents no non-frivolous issues. One big risk that the Court will find that there are non-frivolous issues which counsel missed, which doesn’t make the attorney making the motion look very good. Those risks were realized in two decisions issued by the Fourth Department last week.

In People v Hunter 2009 NY Slip Op 02223 [4th Dept 3/20/09] the defendant was convicted upon a guilty plea of burglary in the second degree (Penal Law § 140.25 [2]), and was sentenced to a determinate term of imprisonment of six years and a three-year period of postrelease supervision. Defendant was also ordered to pay restitution in the amount of $5287.38. Defendant's assigned appellate counsel moved to be relieved of the assignment pursuant to People v Crawford (71 AD2d 38), and submitted an affirmation in which he concluded that there were no nonfrivolous issues meriting the Court's consideration. The Court wasn’t convinced:

The record reveals that restitution was not part of the plea agreement. This fact raises the issue of whether County Court erred in ordering defendant to pay restitution without affording him an opportunity to withdraw his plea (see People v Ponder, 42 AD3d 880, lv denied 9 NY3d 925). Therefore, we relieve counsel of his assignment and assign new counsel to brief this issue, as well as any other issues that counsel's review of the record may disclose.

Similarly, in People v Pett 2009 NY Slip Op 02227 [4th Dept 3/20/09], in which the defendant's assigned appellate counsel moved to be relieved of the assignment pursuant to People v Crawford (71 AD2d 38), the Fourth Department noted that the record establishes that the trial court failed to advise the defendant of the postrelease supervision component of his sentence during the plea allocution. The Court held that

This fact raises the issue of whether defendant's plea was knowing, voluntary and intelligent (see People v Louree, 8 NY3d 541). Therefore, we relieve counsel of his assignment and assign new counsel to brief this issue, as well as any other issues that counsel's review of the record may disclose.

The message sent by the Court is clear. Do not file a Crawford motion unless it is clear that there is no issue that can be raised on appeal.

In October I wrote about the risks of moving, pursuant to People v Crawford (71 AD2d 38) and Anders v California (386 US 738), to be relieved as assigned appellate attorney on the ground that the case presents no non-frivolous issues. One big risk that the Court will find that there are non-frivolous issues which counsel missed, which doesn’t make the attorney making the motion look very good. Those risks were realized in two decisions issued by the Fourth Department last week.

In People v Hunter 2009 NY Slip Op 02223 [4th Dept 3/20/09] the defendant was convicted upon a guilty plea of burglary in the second degree (Penal Law § 140.25 [2]), and was sentenced to a determinate term of imprisonment of six years and a three-year period of postrelease supervision. Defendant was also ordered to pay restitution in the amount of $5287.38. Defendant's assigned appellate counsel moved to be relieved of the assignment pursuant to People v Crawford (71 AD2d 38), and submitted an affirmation in which he concluded that there were no nonfrivolous issues meriting the Court's consideration. The Court wasn’t convinced:

The record reveals that restitution was not part of the plea agreement. This fact raises the issue of whether County Court erred in ordering defendant to pay restitution without affording him an opportunity to withdraw his plea (see People v Ponder, 42 AD3d 880, lv denied 9 NY3d 925). Therefore, we relieve counsel of his assignment and assign new counsel to brief this issue, as well as any other issues that counsel's review of the record may disclose.

Similarly, in People v Pett 2009 NY Slip Op 02227 [4th Dept 3/20/09], in which the defendant's assigned appellate counsel moved to be relieved of the assignment pursuant to People v Crawford (71 AD2d 38), the Fourth Department noted that the record establishes that the trial court failed to advise the defendant of the postrelease supervision component of his sentence during the plea allocution. The Court held that

This fact raises the issue of whether defendant's plea was knowing, voluntary and intelligent (see People v Louree, 8 NY3d 541). Therefore, we relieve counsel of his assignment and assign new counsel to brief this issue, as well as any other issues that counsel's review of the record may disclose.

The message sent by the Court is clear. Do not file a Crawford motion unless it is clear that there is no issue that can be raised on appeal.

Ben Trachtenberg, a Visiting Assistant Professor at Brooklyn Law School, has written an article which both documents and criticizes the recent trend of federal prosecutors seeking to expand the scope of Fed. R. Evid. 801(d)(2)(E), which allows the admission against a defendant of statements made by a coconspirator in furtherance of their joint crime.

AUSAs have characterized the exception as a "joint venture exception," arguing that it covers statements made in furtherance of any joint venture, regardless of its legality or illegality. Indeed, the D.C. Circuit adopted this interpretation in United States v Gewin, 471 F.3d 197 (D.C. Cir. 2006).

Professor Trachtenberg argues that such a reading of the coconspirators exception is mistaken and undesirable, both historically and as matter of law. His survey of thousands of cases on this issue, makes clear that a "conspiracy" under the co-conspirator's exception must involve wrongful acts. He argues that

First, courts and commentators have for centuries described the exception as concerning illegal or illicit conduct. Second, because the drafters of the Federal Rules of Evidence (and analogous state codes) intended to adopt the common law understanding of the Exception when codifying it in Rule 801(d)(2)(E), encroachment beyond the historical boundaries of the Exception violates existing rules of evidence. Third, and most important, such revisionism also violates the Confrontation Clause of the Sixth Amendment, which allows admission in criminal trials of evidence pursuant to hearsay exceptions "well established" at the time the Amendment was ratified but jealously restricts any broadening of those exceptions.

The cases and arguments contained in this article should be cited if faced with a prosecutor seeking or a court applying an overly broad, ahistorical, test for admitting statements under the coconspirators exception. Indeed, these arguments parallel those made adopted by the Court in Crawford v Washington (541 U.S. 36 [2004]).

Ben Trachtenberg, a Visiting Assistant Professor at Brooklyn Law School, has written an article which both documents and criticizes the recent trend of federal prosecutors seeking to expand the scope of Fed. R. Evid. 801(d)(2)(E), which allows the admission against a defendant of statements made by a coconspirator in furtherance of their joint crime.

AUSAs have characterized the exception as a "joint venture exception," arguing that it covers statements made in furtherance of any joint venture, regardless of its legality or illegality. Indeed, the D.C. Circuit adopted this interpretation in United States v Gewin, 471 F.3d 197 (D.C. Cir. 2006).

Professor Trachtenberg argues that such a reading of the coconspirators exception is mistaken and undesirable, both historically and as matter of law. His survey of thousands of cases on this issue, makes clear that a "conspiracy" under the co-conspirator's exception must involve wrongful acts. He argues that

First, courts and commentators have for centuries described the exception as concerning illegal or illicit conduct. Second, because the drafters of the Federal Rules of Evidence (and analogous state codes) intended to adopt the common law understanding of the Exception when codifying it in Rule 801(d)(2)(E), encroachment beyond the historical boundaries of the Exception violates existing rules of evidence. Third, and most important, such revisionism also violates the Confrontation Clause of the Sixth Amendment, which allows admission in criminal trials of evidence pursuant to hearsay exceptions "well established" at the time the Amendment was ratified but jealously restricts any broadening of those exceptions.

The cases and arguments contained in this article should be cited if faced with a prosecutor seeking or a court applying an overly broad, ahistorical, test for admitting statements under the coconspirators exception. Indeed, these arguments parallel those made adopted by the Court in Crawford v Washington (541 U.S. 36 [2004]).