Tuesday, June 30, 2009

New York Law as a Source of Rights

Last month,in People v Weaver (5/12/09)(discussed here, the Court of Appeals held that the New York Constitution requires that a warrant issued upon probable cause be issued before the police can monitor someone's whereabouts by surreptitiously attaching an electronic device (GPS) to that person's automobile. Thus New Yorkers need not worry that police without warrants or cause could attach such devices to their vehicles in New York and record the vehicles' minute by minute location.

In People v Buchanan (6/30/09) the Court again found that the New York Constitution provides protections that have not been clearly found under the United State Constitution.

The issue in Buchanan had appeared to be whether the use of a non-visible stun belt on a defendant in a murder trial because it was the judge's policy to use such devices where a defendant is charged with a serious crime deprived deprived the defendant of due process of law. The defendant relied on Deck v Missouri (544 US 622, 626 [2005]), in which the United States Supreme Court held that the Due Process Clause prohibits a state from confining a defendant in "visible shackles" during a criminal trial, unless a "special need," based on facts specific to the case, is shown. The People argued that Deck is distinguishable because the stun belt here was not visible to the jury.

The Court held that it did not need to resolve the applicability of Deck because

"we need not reach the constitutional issue, however, for we conclude as a matter of New York law that it is unacceptable to make a stun belt a routine adjunct of every murder trial, without a specifically identified security reason."

The court adopted a "rule that a stun belt may not be required unless the trial court makes findings on the record showing that the particular defendant before him needs such a restraint. A formal hearing may not be necessary, but the trial court must conduct a sufficient inquiry to satisfy itself of the facts that warrant the restraint." The Court did not state is this rule is of constitutional nature. Nor did it state the nature of rule making authority other than the constitution.

Regardless, the message for counsel should be clear - in addition to all other arguments, preserve claims as being based in rights under New York law.

Sunday, June 14, 2009

Conflicts Require Corrective Action, Not Just A Wink

In People v Connolly (2009 NY Slip Op 04822 6/12/09)the Court held that the grand jury proceeding was defective where
one of the grand jurors informed the prosecutor that she was the mother of one of the alleged victims and the mother-in-law of another. In addition, the grand juror's daughter had commenced a civil action against defendant, allegedly arising from the same facts that resulted in the instant indictment against defendant. Although the special prosecutor instructed the grand juror not to participate in any proceeding concerning those witnesses and not to listen to their testimony, she was permitted to remain in the grand jury room during the presentation of the remaining evidence concerning defendant and she heard defendant's testimony. She then was permitted to participate, consult and vote on all of the charges against defendant that did not involve her relatives.

The Court explained that

although the grand juror in question did not participate in the vote concerning the particular count of the indictment that pertained to her daughter and son-in-law, she participated in the remainder of the proceedings concerning defendant, including the vote to indict him on the remaining counts in the indictment. In addition, the daughter of the grand juror had a financial interest in defendant's indictment and conviction, arising from the pending civil action, and we conclude that potential prejudice arose from permitting the victims' family member to determine whether to indict defendant. The special prosecutor was therefore required to excuse the grand juror from participating in the case against defendant or to present the matter to the court.

This holding seems fairly obvious. What is not obvious is why the special prosecutor, appointed to avoid a conflict of interest, thought otherwise.

SORA: When Is Person Whom The Defendant Had Never Seen Before Not a Stranger

In People v Helmer (2009 NY Slip Op 04830 4th Dept 6/12/09) the sole issue was whether the victim was a stranger to defendant for purposes of determining whether defendant should have been assessed 20 points on the risk assessment instrument for risk factor 7, "[r]elationship with victim."

The Court held that despite the fact that it was undisputed that defendant and the 15 year old victim had sexual relations on the same day on which they had their first face-to-face meeting, she was not a stranger to the defendant. The Court based this holding on the fact that the defendant and the victim had communicated via the Internet and telephone for several weeks before they actually met in person.

Prior to meeting, they had more than 100 Internet exchanges and 30 telephone calls and through their communications, the victim knew defendant's name and age, as well as the status of defendant's pending divorce. The Court concluded that
The risk assessment guidelines provide that "the term stranger' includes anyone who is not an actual acquaintance of the victim" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 12 [2006]). The term "acquaintance" spans a range of social interactions, and we conclude in this case that, based upon the extensive communication through electronic means over a period of weeks and the information learned therein, defendant and the victim were not strangers when they engaged in sexual relations.

Thursday, June 11, 2009

Court of Appeals Allows Admission of Identification Evidence Which is Product of Suggestive Procedures Not Conducted by Police

In People v Adams (53 NY2d 241 [1981]) the Court of Appeals held that evidence of an unnecessarily suggestive police-arranged identification of a criminal suspect must be suppressed as a matter of State constitutional law. Unfortunately, despite the fact that misidentification is the single greatest cause of wrongful convictions, the Court of Appeals in People v Marte (2009 NY Slip Op 04741 June 11, 2009) held that no similar per se rule applies to a suggestive identification in which the police are not involved.

The Court did recognize that "suggestiveness originating with private citizens can create a risk of misidentification" and concluded that "Perhaps other safeguards would be appropriate in particular cases, and we do not rule out the possibility that a court, in balancing probative value against prejudicial effect, may find some testimony so unreliable that it is inadmissible."

There is a Court that has held that unreliable identification evidence is inadmissible. That Court is located in Washington, D.C. and has nine members. Way back in 1977 that Court held in Manson v Braithwaite (432 US 98 [1977]) that "reliability is the linchpin in determining the admissibility of identification."

The decision of the Court of Appeals not to apply a per se rule against the admission of identification evidence which is the product of suggestive identification procedures should not be read to permit the admission of unreliable identification evidence. One would think that, given the United States Constitution, as interpreted by the United States Supreme Court and the Supremacy Clause, unreliable identification is inadmissible in New York courts.

Monday, June 8, 2009

Charges For Which Defendant Was Acquitted Should Not Be Considered In Imposing Sentence

It should not surprise anyone that in People v Durand (2009 NY Slip Op 04476 4th Dept 6/5/09) the Court held that under New York law it was error for the lower court to have considered "the counts of burglary in the third degree and petit larceny, of which defendant was acquitted, when imposing the sentences on the criminal trespass counts (see People v Reeder, 298 AD2d 468, lv denied 99 NY2d 538; see also People v Rogers, 56 AD3d 1173, 1174)." (By contrast under a federal law, a sentencing court may consider conduct for which the defendant was acquitted, as long as that conduct had been proved by a preponderance of the evidence (US v Watts, 519 US 148 [1997]).

What grabbed my attention is that defense counsel failed to preserve that contention for the court's review. One would think that after the not guilty verdicts on those counts it would be upsetting to hear the judge reference them at sentencing. Fortunately, despite counsel's silence, the Fourth Department exercised its power to review that contention as a matter of discretion in the interest of justice, modified the judgment by vacating the sentence, and remitted the matter to County Court for resentencing.

Sunday, June 7, 2009

Jurisdictional Challenge to Superior Court Information Rejected

Mr. Hernandez challenged his conviction on the ground that the the superior court information (SCI) upon which he was prosecuted was jurisdictionally defective because he was not held for the action of a grand jury by the local criminal court as required by CPL 195.10 (1) (a). On appeal in People v Hernandez (2009 NY Slip Op 04570 4th Dept 6/5/2009) the Court finds that "the record establishes that defendant was arraigned by the local criminal court and that the matter was adjourned for further proceedings. There is no indication in the record that a preliminary hearing was held." So does the Court rule for Mr. Hernandez? No. The Court explained that
the record does establish that Supreme Court was satisfied with the waiver of the indictment and executed an order to that effect. We thus "may presume that the matter was properly before that court" (People v Chad S., 237 AD2d 986, lv denied 90 NY2d 856; see People v Hurd, 12 AD3d 1198, 1199, lv denied 4 NY3d 764).


But in both People v Chad S. (237 AD2d 986) and People v Hurd (12 A.D.3d 1198) the Court had found that "the record fails to establish that defendant did not waive a preliminary hearing, that a hearing was not held, or that the charges were still pending in City Court." there was no such finding in Hernandez, yet the Court reached same result, simply because of the presumption.

SORA Level Lowered on Finding of Improvident Exercise of Discretion

In People v Brewer (2009 NY Slip Op 04548 4th Dept 6/5/09) the Court reduced the defendant's SORA level from a level three to a level two even though the defendant was presumptively a level three risk pursuant to the risk assessment instrument. The Court ruled that the lower court's determination was not an "abuse of discretion" it was, under the circumstances, an "improvident exercise of discretion." The Court explained that
that there is clear and convincing evidence of special circumstances to warrant a downward departure from the presumptive risk level (see People v Weatherley, 41 AD3d 1238; see also People v Smith, 30 AD3d 1070). Defendant was 20 years old when he engaged in the underlying offense, i.e., sexual activity with a 16-year-old female who admitted that she willingly engaged in the sexual activity. There was no allegation or evidence of forcible compulsion. The record further establishes that this was defendant's first and only sex offense and that defendant was enrolled in sex offender counseling at the time of the SORA hearing.

Thus, the Court decided to "substitute [its] own discretion 'even in the absence of an abuse [of discretion]' (Matter of Von Bulow, 63 NY2d 221, 224)." Since this finding that there was an "improvident exercise of discretion" is an act of discretion, not a ruling on the law, it is not reviewable by the Court of Appeals. People v Baker, 64 NY2d 1027 (1985).

It is important for appellate counsel to realize that the discretionary authority of the Appellate Division is as broad as that of the trial court (Matter of Von Bulow, 63 NY2d 221, 225, n.; People v Belge, 41 NY2d 60) and when it is exercised it is not reviewable unless it is abused. People v Baker, 64 NY2d 1027 (1985).

Monday, June 1, 2009

Photo Arrays and CPL 710.30 Notice

The Court of Appeals held in People v Grajales (8 NY3d 861 [2007]) that the People are not required to give 710.30 notice of identifications of the defendant made during a photo identification procedure, such as an array The Court reasoned that because testimony regarding photographic identification procedures is not admissible, the People cannot "intend to offer at trial" such testimony. Thus, such testimony does not fall within the scope of 710.30.

The scope of this decision might be more limited than some have feared. A Supreme Court (Kings County) judge in People v Smothers (20 Misc 3d 654[Sup Ct, Kings County 2008]), has issued a decision, which interprets Grajales and 710.30 as requiring the People to give 710.30 notice of their intent to offer in-court identification testimony of any witness who has previously identified the defendant in a photo-array or other photographic identification procedure, notwithstanding the People's lack of intent to offer testimony of the pretrial identification procedure. The court explained that where "the pretrial identification procedure is one that would not be admissible at trial on he People's-case in-chief, such as a photographic array,, it is that identification procedure that need not be noticed." However, "Grajales did not hold nor even suggest that the People are not obligated to serve CPL 710.30 notice as to a prospective identifying witness who made a prior photographic identification."

The holding in Smothers appears to be supported by 710.30's language. Notice is required "whenever the people intend to offer at trial" "testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such" (CPL 710.30 [1] [emphasis added]).

Thus, it can be argued that in-court identification testimony by a witness who previously identified the defendant as in a photo-array is "testimony regarding an observation of the defendant . . . upon some other occasion relevant to the case [i.e. testimony regarding the witness's observation of the defendant in-court] by a witness who has previously identified him as such."

Written by Drew R. DuBrin, Special Assistant Monroe County Public Defender