In People v Colon (__NY3d__, 2009 NY Slip Op 08477 [11/19/09])the Court of Appeals granted co-defendants' motion to vacate their murder convictions where only two witnesses had linked the defendants to the crime and the trial prosecutor had permitted one of the witnesses to falsely state the extent of the benefits he received for testifying against the defendants. The Court held that

In their role as public officers, prosecutors "must deal fairly with the accused and be candid with the courts" (People v Steadman, 82 NY2d 1, 7 [1993]). This duty requires prosecutors not only to disclose exculpatory or impeaching evidence but also to correct the knowingly false or mistaken material testimony of a prosecution witness. Where a prosecutor elicits or fails to correct such inaccurate testimony, reversal and a new trial are necessary unless there is no "reasonable possibility" that the error contributed to the conviction (citations omitted).

Yet, the trial prosecutor had personally been involved in conveying a favorable plea offer which had not been disclosed to the defense. The prosecutor failed to correct the witness's misleading testimony and, in addition, compounded these errors by repeating and emphasizing the misinformation during summation. In reversing, the Court held that

Unlike the Appellate Division, we believe that there is a reasonable possibility that these errors affected the jury's verdict (see People v Vilardi, 76 NY2d 67, 77 [1990]). At trial, only two witnesses connected defendants to the crime... [One] had previously committed perjury and was a self-described drug kingpin and murderer. His veracity was further called into question given that he was facing life imprisonment on both state and federal charges when he agreed to testify against defendants. [The other witness's] testimony was therefore crucial. But the false testimony elicited by the prosecutor regarding the benefits extended may well have impacted the jury's perception of [that witness's] credibility. By their very nature, benefits conferred on a witness by a prosecutor provide a basis for the jury to question the veracity of a witness on the theory that the witness may be biased in favor of the People. For this reason, it is important that witnesses provide truthful testimony when questioned about the receipt of such benefits, and the People must be vigilant to avoid misleading the court or jury. Rather than correct the inaccurate testimony, the prosecutor here exacerbated the problem during her closing comments.

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

In People v Colon (__NY3d__, 2009 NY Slip Op 08477 [11/19/09])the Court of Appeals granted co-defendants' motion to vacate their murder convictions where only two witnesses had linked the defendants to the crime and the trial prosecutor had permitted one of the witnesses to falsely state the extent of the benefits he received for testifying against the defendants. The Court held that

In their role as public officers, prosecutors "must deal fairly with the accused and be candid with the courts" (People v Steadman, 82 NY2d 1, 7 [1993]). This duty requires prosecutors not only to disclose exculpatory or impeaching evidence but also to correct the knowingly false or mistaken material testimony of a prosecution witness. Where a prosecutor elicits or fails to correct such inaccurate testimony, reversal and a new trial are necessary unless there is no "reasonable possibility" that the error contributed to the conviction (citations omitted).

Yet, the trial prosecutor had personally been involved in conveying a favorable plea offer which had not been disclosed to the defense. The prosecutor failed to correct the witness's misleading testimony and, in addition, compounded these errors by repeating and emphasizing the misinformation during summation. In reversing, the Court held that

Unlike the Appellate Division, we believe that there is a reasonable possibility that these errors affected the jury's verdict (see People v Vilardi, 76 NY2d 67, 77 [1990]). At trial, only two witnesses connected defendants to the crime... [One] had previously committed perjury and was a self-described drug kingpin and murderer. His veracity was further called into question given that he was facing life imprisonment on both state and federal charges when he agreed to testify against defendants. [The other witness's] testimony was therefore crucial. But the false testimony elicited by the prosecutor regarding the benefits extended may well have impacted the jury's perception of [that witness's] credibility. By their very nature, benefits conferred on a witness by a prosecutor provide a basis for the jury to question the veracity of a witness on the theory that the witness may be biased in favor of the People. For this reason, it is important that witnesses provide truthful testimony when questioned about the receipt of such benefits, and the People must be vigilant to avoid misleading the court or jury. Rather than correct the inaccurate testimony, the prosecutor here exacerbated the problem during her closing comments.

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

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

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

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

The Fourth Department held that

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

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

The Fourth Department held that

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

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

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

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

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

Flashing High Beams Did Not Provide Probable Cause For Stopping Vehicle

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

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

Flashing High Beams Did Not Provide Probable Cause For Stopping Vehicle

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

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

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

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

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

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

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

In People v Garcia-Gual (__ AD3d __, 2009 NY Slip Op 08277 [11/13/09]) the Fourth Department, finally disavowed its holding in McGovern, cited Delgado, and set forth the scope of its authority to review and reduce negotiated sentences:

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

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

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

In People v Garcia-Gual (__ AD3d __, 2009 NY Slip Op 08277 [11/13/09]) the Fourth Department, finally disavowed its holding in McGovern, cited Delgado, and set forth the scope of its authority to review and reduce negotiated sentences:

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

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