Sunday, April 26, 2009

Single Failure to Object Constituted Ineffective Assistance of Counsel Requiring Reversal

In People v Brown (2009 NY Slip Op 03334 4th Dept 4/24/09) the Court held that a single failure, specifically the "defense counsel's failure to object to the admission in evidence of the victim's medical records, which contained information concerning prior allegations of sexual abuse against defendant" constituted ineffective assistance of counsel requiring reversal of a conviction for sexual abuse in the first degree and endangering the welfare of a child.

The Court explained that under the circumstances of this case, that failure alone constitutes ineffective assistance of counsel because it was "so egregious and prejudicial' as to deprive [the] defendant of his constitutional right" to a fair trial (People v Turner, 5 NY3d 476, 480)."

If At First You Don't Succeed

What are the purposes of pre-trial identification procedures? Is it only to have the witnesses identify a suspect or should they also be used to determine the witnesses' reliability? The Fourth Department confronted this issue in People v White (2009 NY Slip Op 03290 4th Dept 4/24/09).

Identification testimony is powerful evidence of guilt. Yet, misidentification is the single greatest cause of wrongful conviction. So what should the police do when they discover that the person whom the witness stated he was 70 percent sure committed the crime could not have done so? Does that cast questions about the reliability of that witness generally? Does it require the police to take additional measure in conducting future procedures with that witness to insure that whoever is picked actually is guilty?

In White the Fourth Department ruled that under these circumstances the police had no duty to include the wrongfully identified person's photograph in future photo array, "since the police are not required to include a photograph of a person who has been ruled out as a suspect."

How confident should we be that the second time was a charm?

Rape in the First Degree an Inclusory Concurrent Count of Predatory Sexual Assault

In People v Scott (2009 NY Slip Op 03229 4th Dept 4/24/09) the Court reversed and dismissed the part of the judgment convicting defendant of rape in the first degree because it is an of predatory sexual assault against a child. The Court explained that pursuant to CPL 300.30 (4), concurrent counts are inclusory when the offense charged in one is greater than that charged in the other and when the latter is a lesser offense included within the greater.
Here, the predatory sexual assault count charged rape in the first degree as one of its elements and, as charged in the indictment, the elements of the predatory sexual assault with respect to rape in the first degree are precisely those required for rape in the first degree under Penal Law § 130.35 (4). Thus, it was impossible for defendant to commit predatory sexual assault against a child without, by the same conduct, committing rape in the first degree, thereby rendering rape in the first degree an inclusory concurrent count of predatory sexual assault against a child.

Ontario County Conviction Reversed Due to Prosecutorial Misconduct

Ever wonder what it takes to get a conviction reversed because of prosecutorial misconduct? How about for unobjected to prosecutorial misconduct> The Appellate Division, Fourth Department, provided an answer in People v Morrice (2009 NY Slip Op 03282 4th Dept 4/24/09).

In Morrice the Court reversed a conviction for burglary and grand larceny because the District Attorney committed the following eight acts of misconduct, only some of which were objected to by trial counsel:

1. When in response to the prosecutor's question, the main prosecution witness falsely testified that she had received no benefit for he testimony, the prosecutor did not correct this "misstatement" as required (see People v Novoa, 70 NY2d 490, 496-498; People v Hendricks, 2 AD3d 1450, 1451, lv denied 2 NY3d 762; People v Potter, 254 AD2d 831, 832).

2. The prosecutor then "compounded his misconduct in failing to correct the misstatement by telling the jury during summation that the witness was 'getting nothing out of having testified in this case.'"

3. The prosecutor twice elicited police testimony with respect to defendant's invocation of the right to counsel.

4. The prosecutor commented on defendant's invocation of the right to counsel during summation

5. The prosecutor questioned defendant on cross-examination concerning his discussion of the case with his attorney during a recess.

6. The prosecutor twice improperly asked a defense witness on cross-examination whether she had ever been arrested for a crime.

7. The prosecutor questioned a defense witness as to whether her boyfriend was currently incarcerated,

8. In summation the prosecutor characterized defendant as a liar and told the jury that defendant "just concocted a story now to try to deceive you."

Critically, the Court explained that in measuring whether misconduct has caused the defendant substantial prejudice "'one must look at the severity and frequency of the conduct, whether the court took appropriate action to dilute the effect of that conduct, and whether review of the evidence indicates that without the conduct the same result would undoubtedly have been reached' (People v Mott, 94 AD2d 415, 419)."

Congratulations to Gary Muldoon for winning this reversal. Jeffrey Taylor was the Assistant District Attorney who prosecuted the case.