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.

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.

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?

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?

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.

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.

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).

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).

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

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

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?

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?

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

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