Friday, December 31, 2010

Spelled Just As It Sounds: 2 gs, 2 zs, and 2 ts.

David Juergens, after taking a thirteen year hiatus from working on criminal appeals, obtained reversals of two convictions for a single client, one for burglary after a trial and the other for criminal possession of a weapon after a guilty plea (see, People v Williams,2010 NY Slip Op 09663 [Appeal number 1, 4th Dept 12/30/10] and People v Williams,2010 NY Slip Op 09663 [Appeal number 2, 4th Dept 12/30/10]).

The primary substantive issue on the appeal from the burglary conviction was whether the money seized from his pocket by a police officer should have been suppressed as the fruit of an unlawful arrest. First, the Court found that the police were justified in stopping defendant's vehicle for a speeding violation, and in thereafter asking defendant to produce his license and registration and to exit the vehicle. However, the three judge majority found that

The officers who conducted the traffic stop, however, "went beyond merely ordering defendant from his car. [They] took the additional protective measures' of frisking defendant, handcuffing him and placing him in a police car . . . [S]uch an intrusion amounts to an arrest[,] which must be supported by probable cause" (Johnson, 102 AD2d at 626; see People v Brnja, 50 NY2d 366, 372). At the time of the stop and arrest of defendant, "[n]o probable cause yet existed to arrest him on burglary charges for[,] although the police had reports of possibly suspicious behavior, they had no knowledge [that] a burglary had even been committed" (People v Randall, 85 AD2d 754, 754-755; cf. People v Hicks, 68 NY2d 234, 241). The officers were not at liberty to detain defendant while other officers attempted to determine whether a burglary had in fact been committed, i.e., "until evidence establishing probable cause could be found" (People v Battaglia, 82 AD2d 389, 396 [Hancock, J., dissenting], revd on dissent of Hancock, J. 56 NY2d 558; see People v Nicodemus, 247 AD2d 833, 836, lv denied 92 [*2]NY2d 858).
Because the arrest of defendant was illegal, the money seized from his pocket must be suppressed as flowing directly from the illegal arrest. Further, "[i]t cannot be said that the money found on defendant . . . [was] the product of a source independent of the defendant's detention or that the illegal activity was attenuated by a significant intervening event which justified the conclusion that [such] evidence was not the product of the illegal activity" (Battaglia, 82 AD2d at 397 [internal quotation marks omitted]).

A fourth Justice agreed with this holding, but disagreed with the majority's conclusion that the error in refusing to suppress the evidence was not harmless beyond a reasonable doubt. Presiding Justice Scudder would have held that this was a a legitimate stop pursuant to People v Hicks, 68 NY2d 234.

But this Fourth Amendment holding is not the real subject of this post. Rather, I am writing to highlight both the ground for the reversal of the weapons conviction and to implore trial court attorneys to learn an important lesson from this reversal.

The Appellate Division's reversal on the weapons conviction was because that plea was induced by the promise that the sentence would run concurrently with the sentence imposed upon the prior conviction in the Burglary case. As the Court explained

Because we are reversing that prior judgment of conviction, the judgment in appeal No. 1 must be reversed, the plea vacated and the matter remitted to Supreme Court for further proceedings on the indictment (see People v Fuggazzatto, 62 NY2d 862).

The Fuggazzatto rule is a simple one - if a defendant is convicted on one indictment and then enters a plea on a second indictment with a promise that he will receive concurrent time, a defendant who obtains reversal of the first conviction is also entitled to reversal of the second conviction. However, and this is the lesson for trial attorneys, in order for your client to obtain the benefit of the the holding in Fuggazzatto one must file notices of appeal from both convictions. There is no excuse or strategy that can justify the attorney filing the notice of appeal from the trial conviction and, absent a waiver of the right to appeal, failing to file the notice of appeal from the subsequent plea conviction.

Having been the appellate attorney in cases in which a winning issue was raised from the trial conviction, resulting in reversal, but in which the plea conviction remained solely due to the failure to file a notice of appeal, I can report that client's will not be very appreciative of such a reversal. Instead, they will want to know what can be done about the failure to file a notice of appeal. You don't want to be the attorney who failed to file the required second notice of appeal.

Saturday, December 18, 2010

Tactics to Consider in Trying a Child Sex Case

By Jill Paperno, Second Assistant Monroe County Public Defender

I just finished a child sex offense trial, and I thought I'd share some thoughts. I tried a few different things this trial that you may want to consider (or not):

1. Voir dire:

In voir dire the potential jurors are asked if they can be fair when the case involves young children. I tried explaining more about what it was going to be like - the door will open, a young child will walk in escorted, but then walk up alone. The room is too big, the child is too small, you may not hear the child's voice when they're sworn, the chair is too big, their feet may dangle. You may get a sick feeling in the pit of your stomachs. Because whether or not this happened, children don't belong here. More people decided they couldn't be fair after that.

I also addressed the topic of a supposed expert on "Child Sexual Abuse Accommodation Syndrome" in voir dire - what is science, how to determine if someone is an expert, are they comfortable making the assessment, is anecdotal information scientific, etc.

2. Opening Statement

When I opened I talked about how doctors from the local Child Abuse Advocacy Center often determine that findings are normal in children, but then opine that this determination was consistent with the child having been abused. I talked about how any child - even one of their own, could be seen by such a doctor, and come away with a description of findings consistent with abuse. I also talked about the CSAAS expert would likely conclude that all behavior, anything a child does, is consistent with CSAAS. So no matter whether the child is abused or not, he will conclude the behavior is consistent with CSAAS. I then noted that any defendant starts any case with two witnesses against him, the doctor from the child abuse advocacy center and the CSAAS "expert", whether or not he's guilty.

3. Cross-Examination

As usual, the photos are critical. In my recent case what they showed about the height of the bed and the number of particular toys was of great help in examining the People's witnesses. Always examine the photos. Look for the details. Also, I rarely address the actual act in my cross -just all the circumstances around. Happy to share if you have any questions.

I questioned the kids a lot about the trial preparation they had with the District Attorney and others. Listen to how the prosecutor questions the kids and reinforces the testimony and consider whether you can use that to support a claim that the children were led and reinforced in their version of events.

4. Summation

I began the sum by saying that no juror comes into the courthouse on a child sex offense case saying "I can't wait to acquit." I then told them they must. There are different approaches to summations. I often mention reasonable doubt. In fact, for many of my cases, if I never mentioned reasonable doubt in a summation, I'd have very little to say. It's my chorus.

I again talked about the sadness of a child being in the courtroom - whether or not the events occurred. I acknowledged what it looked like for a kid to be testifying and what it may have felt like for them.

I actually talked about acquitting on a technicality- I think you have to be careful as to how you phrase it, but I talked about the uncertain dates given by the kids perhaps being what some might think of as technicalities, but they go to the reliability of the testimony. So even if the dates weren't proven BRD, they had to acquit.

I told them not to compromise. There were some weaker witnesses and one stronger one. I told them that if they felt there wasn't PBRD with respect to the other kids, but John Doe was a strong witness, they shouldn't say, well he's the strongest, so let's convict on his counts. I suggested that if each case were tried separately, they wouldn't find the evidence in his case to be PBRD, so they shouldn't compare and compromise. (Be careful of this argument - you don't want them to refuse to compromise and convict on the top count. But I thought I had nothing to lose with that argument in this case.)

I also talked about how some of my questions which might be thought of as stupid lawyer tricks weren't intended to trick the kids, but instead show that when they were off the script, they couldn't keep things straight.

At each stage of the case, I talked about how young children may not tell the truth, but may not be intentionally lying, because their perceptions and recollections can be shaped by people they've spoken with, reactions, questions that have been asked, etc. (got a little help from the People's doctor on that one). I also told them I expected the DA might argue that in order to acquit they'd have to find the kids were lying. Then talked about how if the kids weren't intentionally lying, but their memories or testimony were shaped over time by the various factors, their testimony was not reliable, and not the basis for PBRD.

So in this case I talked more directly about the elephants in the room.

5. Miscellaneous

Object to really inflammatory language. Anticipate that the prosecutor will argue "why would they lie" or "what's their motive to lie" and when you lose your motion to preclude on burden shifting answer it in your summation.

(Editors note- Jill (who recently received the Jeffrey A. Jacobs Memorial award for her outstanding work as criminal defense attorney) is too modest to mention that she obtained a complete acquittal on charges involving four children. Brian Shiffrin)

Thursday, December 16, 2010

Prudent Counsel Will Continue to Challenge the Constitutionality of New York's Persistent Felony Offender Sentencing Statutes

Back in March, I wrote about the decision in Besser v Walsh, 601 F3d 163 [2d Cir 3/31/10]) in which the United States Court of Appeals for the Second Circuit struck down New York's persistent felony offender law as unconstitutional, holding that “the New York courts’ upholding of the constitutionality of the New York state persistent felony offender (PFO)sentencing statutes after the United States Supreme Court’s decision in Blakely v Washington (542 US 296 [2004]), was an unreasonable application of clearly established Sixth and Fourteenth Amendment law.”

Probably because I found it depressing, I never wrote about the en banc decision of the Second Circuit in Portalatin v Graham (624 F3d 69 [2d Cir 10/18/10]) which reversed that decision and held that in upholding the New York PFO sentencing statutes "the state courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the convictions."

Yet, in an indirect way, the decision of the New York Court of Appeals in People v Battles (_NY3d_, 2010 NY Slip Op 09160 [12/14/10]), in which that Court once again rejected a challenge to the constitutionality of New York's persistent Felony Offender sentencing laws, suggests that Portalatin is not necessarily the last word on this issue. The reason one see a glimmer of hope is that Chief Judge Lippman wrote a strong dissent in which he first pointed out that the Court in Portalatin did not "decide not whether the state court correctly interpreted the doctrine of federal law on which the claim is predicated, but rather whether the state court's interpretation was unreasonable in light of the holdings of the United States Supreme Court at the time." Then, Chief Judge Lippman wrote that there is no material difference between the California statute struck down by the United States Supreme Court in Cunningham v California (549 US 270 [2007]) "and our persistent felony offender sentencing statutes."

Chief Judge Lippman's dissent suggests that there is a chance that the Supreme Court would grant a petition for certiorari and then strike down New York's PFO sentencing statutes. I recognize that in writing that last sentence I sound like Lloyd in Dumber and Dumber when told by Mary his chances are one in a million (So you're telling me there's a chance... *YEAH!). But since there is a chance, however slight, prudent counsel will continue to raise constitutional challenge to the statutes. Otherwise, if these statutes are eventually overturned one's clients will not be able to directly challenge their unconstitutionally imposed life sentences.

Understand that when you raise such a challenge courts might respond like the court did in United States v Harris, 932 F2d 1529, 1537 (5th Cir. 1991):

Finally, the appellants raise the tired argument that the sentencing guidelines are unconstitutional since they permit the district court to resolve factual disputes without the benefit of a jury. This very contention has been raised before, and consistently rejected. See e.g., United States v. Byrd, 898 F.2d 450, 452-52 (5th Cir. 1990); United States v. Casto, 889 F2d 562, 569-70 (5th Cir. 1989), cert. denied, U.S. , 110 S. Ct. 1164, 1 (1990) [emphasis added]. Accordingly, we do likewise.

Of course, those "tired arguments" were eventually accepted by the Supreme Court in Apprendi v New Jersey (530 US 466 [2000]), Blakely v Washington (542 US 296 [2004]) and Cunningham v California (549 US 270 [2007]).

Monday, December 13, 2010

Can a Defense Counsel Validly Concede Guilt to One or More Counts Over the Defendant’s Objection?

In People v Colville (2010 NY Slip Op 07185 [2nd Dept. Oct 5, 2010]) the Second Department, without reaching a decision on the issue, engaged in detailed review of the arguments as to whether the decision to submit a lesser included offense is a fundamental one that must be made by the defendant or is a strategic one that can be made by counsel. The Colville court noted that courts have split on this issue, which has not yet been addressed by the New York Court of Appeals. On this issue the Appellate Division, Fourth Department, in People v Taylor (2 AD3d 1306 [4th Dept 2003]) held that "defendant was not denied his right to make a “fundamental decision[ ]” (internal citation omitted) when the court considered a lesser included offense charge after discussing the issue with defense counsel and the prosecutor, without input from defendant.”

What about the related issue of whether defense counsel may validly concede guilt to one of more counts over the defendant’s objection? One might think that such a concession is effectively no different than a guilty plea, and the decision whether to plead guilty is fundamental one for the defendant and not counsel (Jones v Barnes, 463 U.S. 745 [1983]; People v White, 73 NY2d 468 [1989]). Under such reasoning it would seem clear that counsel cannot make such a concession over the objection of the defendant. That position was recently rejected by the Court in Washington v Poole (_F Supp_, 2010 WL 3910176 (WDNY 10/6/10), in denying a petition for a writ of habeas corpus in which Mr. Washington urged that he was denied effective assistance of counsel when his counsel, over Mr. Washington’s objection, conceded Washington was involved in the robbery but disputed whether the handguns used during the robbery were “loaded and operable” so as to make Washington guilty of robbery in the first degree. The Court explained that

In Florida v Nixon, 543 US 175 (2004), the Supreme Court indicated that while defense counsel has an obligation to explain to the defendant a proposed strategy of conceding guilt at the guilt phase of a capital trial, counsel has no further obligation to obtain the defendant's express consent to this strategy. Id. at 189. In Nixon, during the guilt phase of a capital trial, the defense attorney conceded that his client had committed the murder. The strategy there was to establish credibility with the jury by conceding the murder, and then to seek leniency at the sentencing phase. However, the defendant was convicted of the murder and sentenced to death. The state appellate court in Nixon reversed the defendant's conviction and held that trial counsel's concession of guilt, without defendant's express consent, deprived the defendant of his right to the effective assistance of counsel guaranteed by the Sixth Amendment....The United States Supreme Court reversed. First, the Nixon court expressly rejected the proposition-also urged by petitioner here-that a concession of guilt is the functional equivalent of a guilty plea requiring the consent of the accused on the record. ...
Here, Washington has rested his ineffective assistance argument on counsel's failure to obtain his expression consent to the concession-of-guilt strategy, and has argued that prejudice must be presumed in these circumstances. The Supreme Court rejected this proposition in Nixon, holding that defendant must show both that the strategic decision to concede guilt was objectively unreasonable and that the defendant was actually prejudiced by the decision. See, e.g., Sondey v White, No. 05-71831, 2009 WL 4800413, at *24-25 (E.D.Mich. Dec.9, 2009) (“The lesson of Nixon, as reflected in cases decided both before and after that decision, is ‘that counsel's concession of a client's guilt does not automatically constitute deficient performance.’ Young v Catoe, 205 F3d 750, 759 (4th Cir.2000). More specifically, ‘conceding guilt to one count of a multi-count indictment to bolster the case for innocence on the remaining counts is a valid trial strategy which, by itself, does not rise to the level of deficient performance.’ United States v Holman, 314 F.3d 837, 840 (7th Cir.2002).”).

The court's reliance on the Supreme Court's decision in Nixon, a capital case, would be more persuasive if capital case jurisprudence always applies in the non-capital context. But that is not the case. For example, in Beck v Alabama (447 US 625, 638 [1980]) the Supreme Court held that although it would have been constitutional in a non-capital context, a state statute precluding consideration of an appropriate lesser included offense violated due process in a capital case.

Wednesday, December 1, 2010

Removal of a Prospective Juror for Living in an Almost Exclusively Non-White Neighborhood is a Race Neutral Reason for a Peremptory Challenge

People v Black (_ NY3d_, 2010 NY Slip Op 08766 [11/3010]) is one of the four cases with Batson issues that the Court considered in People v Hecker. The Court, in part, determined whether the trial court was correct in finding that the District Attorney had put forth a race neutral reason for using a peremptory challenge to remove prospective juror Gordon. The People's reasons for striking Gordon were twofold: she was unemployed and lived in East New York, the neighborhood adjacent to the crime scene.

The trial court determined that these reasons advanced by the People were race neutral and invited defense counsel to argue why it should find these reasons to be pretextual. First, defense counsel noted that East New York is the largest "identifiable neighborhood" in Brooklyn and nothing about Gordon's answers in voir dire suggested that she lived near the vicinity of the crime scene. Next, defense counsel asserted that the unemployment status of Gordon should not be held against them in evaluating their qualifications to serve as jurors.

The Court of Appeals agreed that these were acceptable race neutral reasons, explaining that
A party, for example, might not want a prospective juror who lives in a particular neighborhood or who works in a certain field to sit on the jury because that party believes — for reasons unrelated to the facts of the case — that such individual may have a more sympathetic attitude or view toward the opposing party.
This might not seem all that unusual a holding unless one considers a critical fact not mentioned in the decision: East New York is a large neighborhood in Brooklyn (more than 170,000 residents) that is virtually entirely non-white. According to the 2000 census only about two percent of the residents of East New York are white (see). (For a detailed description of East New York's demographics, see Thabitt, How East New York Became a Ghetto.

Thus, there is a real danger that excusing a juror for living in East New York, in a case in which the crime did not occur in East New York, is functionally no different than excusing a juror for being non-white. The Court’s decision utterly fails to discuss how to determine whether the removal of an African American juror for living in an entirely non-white neighborhood was a race neutral reason for exercising a peremptory challenge or simply a race-proxy means for removing a non-white juror.

The need for guidance is particularly great for trial in Brooklyn, a borough comprised of highly segregated neighborhoods, in which two thirds of African Americans live in neighborhoods in which they comprise at least 65% of the population (see). If a prospective juror's neighborhood is always accepted as a race neutral reason for a peremptory challenge, an attorney in Brooklyn can easily remove most African American jurors by stating that the reason for the challenges is the (predominantly African American) neighborhood in which they reside.

In the Batson context, Justice Marshall, long ago recognized the danger that neighborhood might be a proxy for race (Lynn v Alabama, 493 US 945, 947 [1989] [Marshall, J., dissenting from denial of certiorari] [“In a small community with racially identifiable neighborhoods, an individual's address closely corresponds to his or her race”].

Similarly, the Ninth Circuit Court of Appeals, in a case in which the prosecutor exercised a peremptory challenge of a black prospective juror because the neighborhood of her residence would tend to cause her to believe that “police in Compton . . . pick on black people ”, held that “the prosecutor's invocation of residence rested on a stereotypical racial reason”and that “[r]esidence...often acts as an ethnic badge. As study after study has showed, residence, especially in urban centers, can be the most accurate predictor of race” (United States v Bishop, 959 F2d 820, 827-828 [9th Cir 1992]).

Subsequently, however, in Boyde v Brown, (404 F3d 1159, 1171 [9th Cir 2005]) either sharply limited or overruled this holding:
It may be unpersuasive for a prosecutor to use residence without attempting to tie it to the facts of the case. A trial court could consider that lack of explanation when it decides, in Batson's third step, whether to credit the prosecutor's explanation or find that residence was a pretext for what was really a race-based challenge.... (“It is not until the third step that the persuasiveness of the justification becomes relevant.”). To the extent Bishop suggests that the race-neutrality of an explanation depends on its persuasiveness, it has been effectively overruled by Purkett [ v Elem, 514 US 765, 768 (1995)].

Tuesday, November 23, 2010

Modus Operandi Exception to Molineux Has Limits

In People v Stubbs (2010 NY Slip Op 08485 [4th Dept 11/19/10]) the Appellate Division, Fourth Department held that the trial court erred in admitting evidence with respect to a prior robbery committed a prior attempted robbery committed by defendant. This evidence had been admitted to establish the identity of defendant based on his modus operandi (see generally People v Molineux, 168 NY 264, 293-294, 313-317). In reversing, the Court explained that
defendant’s method of committing the prior crimes, i.e., traveling to
a retail establishment as a passenger in a motor vehicle and threatening the cashier at that establishment with the use of a nonexistent gun, “was not ‘sufficiently unique to be probative on the issue of identity’ ” (People v Pittman, 49 AD3d 1166, 1167, quoting People v Beam, 57 NY2d 241, 252). Although the prior crimes and the robbery at issue herein were similar to the extent that they were committed on the same road, albeit in different political subdivisions, that fact alone does not render the modus operandi unique. As the Court of Appeals has held, “ ‘the naked similarity of . . . crimes proves nothing’ ” (People v Robinson, 68 NY2d 541, 549, quoting Molineux, 168 NY at 316). In addition, we conclude that the prejudicial effect of the evidence concerning the prior crimes outweighed its probative value (see generally People v Hudy, 73 NY2d 40, 55, abrogated on other grounds by Carmell v Texas, 529 US 513).

When Must A Defendant Be Given the Right to Withdraw a Plea Before a Higher Sentence Than Bargained for May Be Imposed?

The appellant in in People v Magliocco (2010 NY Slip Op 08471 [4th Dept 11/19/10]) urged that where the court below had informed defendant during the plea proceeding that it would not be obligated to impose the promised sentence, pending its review of the presentence report, and at sentencing the court informed defendant that it was enhancing the sentence based upon that review" the court had "erred in imposing an enhanced sentence without affording him an opportunity to withdraw his plea."

The Appellate Division, Fourth Department, rejected the argument that the defendant had to be given an opportunity to withdraw his plea before the court could enhance the sentence, not for a violation of a condition of the plea, but upon review of the PSI report. First, the Court held that by "failing to object to the enhanced sentence or to move to vacate his plea, defendant failed to preserve his contention for our review." That isn't unusual or the reason for this posting. It is the next sentence in the decision, however, that is an eyeopener: "In any event, "there was no need for [the court] to afford defendant an opportunity" to withdraw the plea before imposing an enhanced sentence inasmuch as the court was not bound by the plea promise upon reviewing the presentence report (People v Figgins, 87 NY2d 840, 841)."

In People v Figgins (87 NY2d 840 [1995]) the Court of Appeals held that "Defendant's failure to appear in court on the scheduled sentencing date constituted a violation of the plea agreement. Therefore, Supreme Court was no longer bound by the plea promise and could properly impose an enhanced sentence."

The question is how does that holding that a defendant who violates a condition of a plea permits a court to impose a higher sentence without affording defendant a chance to withdraw the plea applicable to the issue presented in Magliocco in which the defendant was not alleged to have violated a condition of the plea.

Long ago, in People v Selikoff (35 NY2d 227 [1974]) the Court of Appeals, after noting that "any sentence ‘promise’ at the time of plea is, as a matter of law and strong public policy, conditioned upon its being lawful and appropriate in light of the subsequent presentence report" held hat if upon reviewing a PSI report and learning more about the crime and the defendant the court felt that a greater sentence than promised, the defendant is "entitled to receive" an opportunity to withdraw the plea "since the foundation for the plea, regardless of fault, had proven to be without substance" One wonder how can one reconcile this holding of the Court of Appeals with that of the Fourth Department in Magliocco. One also wonders if 95 percent of all defendants will continue to enter guilty pleas if the court are not bound by their sentence promise and the defendants cannot withdraw their pleas if a higher sentence is imposed than set forth in the plea bargain.

Friday, October 15, 2010

Coram Nobis May Lie Even When CPL 460.30 Time Limits for Seeking Permission to File a Late Notice of Appeal Has Long Passed

In People v Syville (_NY3d_, 2010 NY Slip Op 07249 [10/14/10])the Court of Appeals held that "[w]here an attorney has failed to comply with a timely request for the filing of a notice of appeal and the defendant alleges that the omission could not reasonably have been discovered within the one-year period, the time limit imposed in CPL 460.30 should not categorically bar an appellate court from considering that defendant's application to pursue an untimely appeal." Instead, the Court held that the common-law writ of error coram nobis affords the appropriate avenue for relief for such a violation and such a writ may be sought and obtained, as in Mr. Syville's case, about a decade after the imposition of sentence.

Tuesday, October 12, 2010

Who Determines Whether to Have the Jury Consider a Lesser Included Offense - Counsel or Defendant?

In People v Colville (2010 NY Slip Op 07185 [2d Dept 10/5/10]) the Appellate Division, Second Department conducted a thorough review of the cases and commentaries on the question of whether the decision to have the jury consider a lesser included offense is a fundamental one to be made by the defendant or a strategic or tactical one for counsel. As the Court noted
Having accepted the assistance of counsel, a defendant retains authority over certain fundamental decisions (see Jones v Barnes, 463 US 745, 751; People v Colon, 90 NY2d 824, 825; People v White, 73 NY2d 468, 478, cert denied 493 US 859). Strategic and tactical decisions, in contrast, rest with counsel (see People v Colon, 90 NY2d at 826; Arko v. Colorado, 183 P3d 555, 558 [Colo]). The demarcation between the two, however, is elusive (see Government of Virgin Is. v Weatherwax, 77 F3d 1425, 1433, cert denied 519 US 1020).

The Court of Appeals has not yet considered this issue. However, in People v. Petrovich (87 NY2d 961), the Court was presented with a related question: as between the defendant and his counsel, who decides whether the affirmative defense of extreme emotional distress should be submitted to the jury? As the Colville court summarized, The Court of Appeals
held that this decision did not implicate a matter of trial strategy or tactics; rather, it was a fundamental decision and, thus, it fell to the defendant. The Court reasoned, citing to the second edition of the ABA Standards, that a verdict was dispositive of a defendant's fate and the submission of the extreme emotional disturbance defense could be determinative of the verdict. In that sense, as the defendant expressed on the record, eliminating the extreme emotional disturbance defense increased his chances of a full acquittal. Thus, the Court concluded, this was not unlike other fundamental decisions already recognized as belonging to the defendant.

Without explanation, the Appellate Division, Fourth Department in People v Taylor (2 AD3d 1306, 1308 [4th Dept 2003]) cited this holding in Petrovich, as support of its conclusion that a defendant was not deprived of his right to make a fundamental decision when the court considered a lesser-included offense charge after discussing the issue with defense counsel and the prosecutor, without input from the defendant.

So what did the Second Department hold? It concluded that under the facts of the Colville case, in which counsel acquiesced to the defendant's decision not to request submission of lesser-included offenses to the jury, it did not have to reach a decision on this issue, since such acquiescence does not constitute ineffective assistance of counsel even if it was decision to be made by counsel.

Sunday, October 3, 2010

Appellate Courts Can Look at Trial Evidence in Reviewing Denial of Motions for Severance

Generally, appellate courts cannot consider trial testimony in reviewing a decision denying a pretrial motion (People v Gonzalez, 55 NY2d 720 [1981]). An important exception to this rule is that appellate courts can look at the trial evidence in determining whether a motion for severance should have been granted (People v Lopez, 68 NY2d 683 [1986])

A recent example of how trial evidence can be considered by an appellate court reviewing the denial of a pre-trial motion for severance, is the decision of the Appellate Division, Fourth Department in People v Nixon (2010 NY Slip Op 06997 [4th Dept 10/01/2010]), in which the Court wrote

In support of his pretrial motion for severance, defendant contended that he and the codefendant had irreconcilable defenses because, according to defendant, the codefendant was in sole possession of the weapon, while the defense of the codefendant was that defendant possessed the weapon but placed it under the codefendant's passenger seat when the police stopped the vehicle. Defendant further contended that he would be prejudiced in the event that the codefendant's attorney was permitted to present evidence against him, thereby acting as a second prosecutor. Indeed, defendant was correct in that respect because the codefendant's "attorney took an aggressive adversarial stance against [defendant at trial], in effect becoming a second prosecutor" (People v Cardwell, 78 NY2d 996, 998). In support of his motion for a mistrial following the testimony of the codefendant at trial, defendant contended that the codefendant had testified that defendant stated that he could not be caught with a handgun because he was on parole, and we note in any event that both defendants in fact implicated each other at trial (cf. People v Watkins, 10 AD3d 665, 665-666, lv denied 3 NY3d 761). Consequently, we agree with defendant that " [t]he essence or core of the [*2]defenses [were] in conflict, such that the jury, in order to believe the core of one defense, must necessarily disbelieve the core of the other' " (People v Mahboubian, 74 NY2d 174, 184). In view thereof, along with the fact that "there [was] a significant danger, as both defenses [were] portrayed to the trial court [in the pretrial motion and the motion for a mistrial], that the conflict alone would lead the jury to infer defendant's guilt," severance was required (id.; see People v Kyser, 26 AD3d 839, 840). Although it appears from the record that the court did not address defendant's irreconcilable conflict contention in refusing to sever the trial or to grant a mistrial, that failure is of no moment because we deem the court to have implicitly denied the severance and mistrial motions on that ground (see generally People v Mason, 305 AD2d 979, lv denied 100 NY2d 563). Consequently, we reverse the judgment and grant a new trial. Inasmuch as the codefendant was acquitted at trial, defendant's severance motion is moot.

DNA Databank Fees

The Appellate Division, Fourth Department has repeatedly recognized that the statutes (see Executive Law § 995 [7]; Penal Law § 60.35 [1] [a] [v])creating the DNA databank fee did not provide for the imposing of such fees for offenses committed prior to the effective dates of those statutes. Furthermore, the Court has exercised its interest of justice jurisdiction to modify judgments to eliminate improperly imposed DNA fees even where counsel failed to timely object. (People v McCullen, 63 AD3d 1708 [4th Dept 2009]; People v Cooper, 2010 NY Slip Op 06973 [4th Dept 10/01/10]).

Thus, even where trial counsel did not object to the imposition of DNA fees, appellate counsel needs to check to insure that the DNA fees were properly imposed.

Concurrent Sentencing and Actus Reus

Penal Law limits the circumstances in which a court may impose consecutive sentences. Specifically, Penal Law § 70.25 [2] provides that concurrent sentences must be imposed “for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other” Thus, in part, sentences imposed for two or more offenses may not run consecutively where a single act constitutes one of the offenses and a material element of the other.

In People v Laureno (87 NY2d 640 [1996]) the Court of Appeals explained that
In determining whether concurrent sentences are required, ... the court must determine whether the actus reus element is, by definition, the same for both offenses (under the first prong of the statute), or if the actus reus for one offense is, by definition, a material element of the second offense (under the second prong). If it is neither, then the People have satisfied their obligation of showing that concurrent sentences are not required (citations omitted). If the statutory elements do overlap under either prong of the statute, the People may yet establish the legality of consecutive sentencing by showing that the “acts or omissions” committed by defendant were separate and distinct acts (citations omitted).

Thus, counsel should be alert to arguments that different counts actually involved a single actus reus. Such a claim was successful in People v Mitchell (2010 NY Slip Op 06926 [4th Dept 10/01/10]) in which the Court held that
The evidence at trial established only that defendant constructively possessed the firearms with respect to the criminal possession of a weapon counts of which he was convicted, and thus the People proved only a single actus reus (see People v Laureano, 87 NY2d 640, 643; People v Hunt, 52 AD3d 1312, lv denied 11 NY3d 737; People v Rogers, 111 AD2d 665, lv denied 66 NY2d 614, 617). Further, the actus reus of the counts of criminal possession of a weapon is a material element of the offense of unlawful wearing of a body vest (see generally Laureano, 87 NY2d at 643). Thus, that sentence must also run concurrently with the sentences imposed on the criminal possession of a weapon counts.

Saturday, October 2, 2010

Catu Reversals Keep on Coming

In People v Catu (4 NY3d 242 [2005]) the Court of Appeals held that s“a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action” and decided that the trial court's failure to advise Mr. Catu of his obligation to serve a five-year term of postrelease supervision required reversal of his conviction. Further, the Court rejected a harmless error analysis in which courts seek to retrospectively determine whether the defendant would have declined to plead guilty had he known of the postrelease supervision.

Since this decision about 100 convictions have been reversed on Catu grounds. The two latest such reversal are the decisions of the Appellate, Division, Fourth Department in People v Rush, 2010 NY Slip Op 06911 [4th Dept 10/01/10]) and People v Pett, 2010 NY Slip Op 06826 [4th Dept 10/01/10]).

Thus, appellate attorneys may want to consider this issue when looking for issues to raise. Of course, it would be blog malpractice to suggest the possibility of urging reversal on Catu grounds without including a warning: attacking a plea as not knowing and intelligent may ultimately be harmful to your client, who might subequently receive a greater sentence (see).

General Objections Are Generally Worthless

In 1883, in Bergmann v Jones (94 NY 51) the Court of Appeal held that
The rule is well established that where there is a general objection to evidence and it is overruled and the evidence is received the ruling will not be held erroneous, unless there be some grounds which could not have been obviated had they been specified, or unless the evidence in its essential nature be incompetent.

And the Court had repeatedly reminded counsel that a general objection is generally no better as preserving an issue for appellate review than silence (see e.g., People v Vidal, 26 NY2d 249, 254 [1970] ["A general objection, in the usual course, is to no avail when overruled if not followed by a specific objection directing the court, and the adversary, to the particular infirmity of the evidence"]; People v West, 56 NY2d 662, 663 [1982] ["Although a general protest was raised against this testimony, defendant at no time objected to this testimony on the specific ground that it constituted improper bolstering. Thus, defendant has failed to preserve this issue for appellate review"]; People v Fleming, 70 NY2d 947, 948 [1988] ["The word “objection” alone was insufficient to preserve the issue for our review"]; People v Tevaha, 84 NY2d 879,881 [1988]["Defense counsel simply made a general objection when the testimony was proffered, and failed to advise the trial court that the present claimed error was the basis for his objection. The word “objection” alone was insufficient to preserve the issue for our review"]; People v. Everson, 100 NY2d 609,610 [2003] ["A party's failure to specify the basis for its general objection renders its argument unpreserved for this Court's review"]).

So one might think that attorneys would understand that in objecting they must specify the basis for their objections. Otherwise, the only person possibly fooled into thinking that the attorney meaningfully objected to the admission of inadmissible evidence is the client. Yet attorneys continue to make general objections and appellate courts continue to find the objection inadequate to preserve the issue for review.

Two recent decisions of the Appellate Division, Fourth Department should serve as further reminders of the uselessness of general objections. In People v Shire (2010 NY Slip Op 06909 [4th Dept 10/01/10]) Defendant failed to preserve for our review his contention that the admission of testimony of a police detective that defendant possessed the cocaine with the intent to sell it invaded the province of the jury because "defendant made only a general objection to the testimony."

Similarly, in People v McMillon (2010 NY Slip Op 06925 [4th Dept 10/01/10]), the Court held that a general objection did not preserve for review a claim that it was violation of the right of confrontation to permit a police officer to testify that he told the defendant that other witnesses had placed defendant at the scene of the homicide.

So please, before standing up to object, plan to say something other than "objection, your honor."

Sandoval Rulings Subject to Change Based on Defense Proof

A Sandoval hearing is designed to let the accused make an informed choice whether he should take the stand prior to testifying by providing a pre-trial determination of the permissible scope of cross-examination of the accused (People v Sandoval, 34 NY2d 371). Generally, a trial court's authority to change its Sandoval ruling is limited once defendant has decided to testify in good-faith reliance on the court's pretrial ruling (see, People v Powe, 146 AD2d 718, 719, l).

However, there is an important exception to this general rule which defense counsel needs to be aware of in questioning witnesses. As the Court held in People v Lyon, AD3d, 2010 NY Slip Op 06892 [10/01/10], where "a defendant's testimony conflicts with evidence precluded by a Sandoval ruling, "the defense opens the door' on the issue in question, and the [defendant] is properly subject to impeachment by the prosecution's use of the otherwise precluded evidence" (People v Fardan, 82 NY2d 638, 646; see People v Rodriguez, 85 NY2d 586, 591)." Indeed, in Fardan the Court held that the exception applies not only to the defendant's testimony but also when "a witness for the defense testifies to facts that are in conflict with the precluded evidence."

Wednesday, September 15, 2010

Attacking Guilty Plea as Not Knowing and Intelligent May Not be Knowing and Intelligent

When an appellant successfully challenges a conviction which followed a trial, the imposition of an increased sentence after a retrial is presumed to violate the Due Process Clause of the New York State Constitution, even where the retrial is before a different judge than imposed the original sentence (People v Van Pelt, 76 NY2d 156, 158 [1990]).

There is no parallel presumption of vindictiveness when a person who successfully challenges a conviction obtained pursuant to a guilty plea is then tried, convicted, and sentenced to a longer sentence than originally imposed. Thus, appellate counsel must warn would be appellants that a successful appeal of a guilty plea might be Pyrrhic victory.

Today's news provides a clear illustration of these risks.

This past February, the Appellate Division, Fourth Department vacated Quinntarius White's conviction for depraved murder following guilty plea because the plea colloquy established that Mr. White acted intentionally and thus, the plea was not at his guilty plea was not knowingly, voluntarily and intelligently entered (People v White,70 AD3d 1343 [4th Dept 2010]). Thus. Mr. White's 15 year to life sentence was vacated.

As reported in today's Rochester Democrat and Chronicle (see) Mr. White was then tried, convicted of intentional murder and sentenced to 20 years to life.

Perhaps Mr. White's longer sentence might help others better appreciate the risks of challenging a guilty plea.

Wednesday, September 1, 2010

Prosecutors Have No Standing to Object to Subpoenas for Documents from Governmental Agencies


Jill Paperno, Esq.
Second Assistant Monroe County Public Defender

Defense attorneys often seek subpoenas related to their cases. When defense attorneys subpoena documents from a governmental entity, we have to serve notice on the prosecutor. The prosecutors often object to such subpoenas on a variety of grounds. But do they have standing to object? As detailed below, it appears that the answer is a firm "no."

A. The Prosecutor Has No Possessory or Proprietary Interest in the Records

Although he is entitled to notice of subpoenas defense counsel wishes to serve on governmental agencies, the prosecution does not have standing to contest the subpoenas. That right is the right of the agencies, and there is no language in either CPLR 2307 or CPL 610.20(3) that provides the prosecution with the right to object to the subpoenas.

In People v. Di Raffaele (55 NY 2d 234), the Court of Appeals affirmed defendant's conviction for usury in the second degree. In response to defendant's argument that the prosecutor used materials obtained through improper use of subpoenas, the Court stated, "Even if it be assumed that the subpoenas in question were indeed null and void, whatever may have been the right of the telephone company to challenge their validity, defendant, having no possessory or propietary interest in the records, has no standing to do so (cf. People v. Ponder, 54 N.Y.2d 160)."

In a case in which the defendant raised a similar argument, People v. Daniel (206 AD2d 856), the Fourth Department, citing, inter alia, DiRaffaele, held that

There is no merit to the contention that the prosecutor improperly obtained telephone records, tax returns and court records to be used at defendant's trial. Defendant lacks standing to challenge the seizure of documents that are maintained by third parties because he has no privacy interest in them (cites omitted).

In People v. Doe (96 AD2d 1018), the First Department held that the Judge-defendant had no standing to preclude production of bank records. The Court explained that,

bank records, although they may reflect transactions between the bank and its customers, belong to the bank. The customer has no proprietary or possessory interests in them. Hence, he cannot preclude their production. (Cites omitted) The rule is the same with respect to telephone records (cite omitted). Accordingly, if the owner of the records, in this case the Chemical Bank, is not opposed to producing them, the customer is powerless to preclude their production.

(96 AD2d at1019).

In two trial court decisions squarely addressing the question of whether the prosecutor has standing to oppose issuance of subpoenas to third parties, both courts concluded they did not. In People v. Grosunor (108 Misc. 2d 932), the Court considered whether the prosecutor had standing to object to defendant's subpoena of Department of Social Services records. The court, in an extremely well reasoned decision, noted that representation by the prosecutor of the agency from which materials were being sought

would appear to be in violation of local law (cite omitted) and would constitute a conflict of interest between agencies involved. Generally, the office of the District Attorney is charged with the responsibility of initiating and conducting all prosecutions for crimes and offenses cognizable by courts of the county in which he serves (cites omitted). In addition, the District Attorney is elected by and for the County of the Bronx and discharges his duties within and for that county.

The Department of Social Services, the nonparty recipient of defendant's subpoena, is an agency of the City of New York and, as such, has a statutory attorney and a legal division separate and apart from the District Attorney (cite omitted). For this reason, the proper party to challenge the validity of the subpoena is the Department of Social Services and not the District Attorney's office. As the court pointed out in Raynor v. Kirk, 30 Misc.2d 1041, which held that the District Attorney had no authority to represent the Nassau County Commissioner of Police, a member of the county police department and Nassau County itself, we are dealing with public officers and municipal agencies whose powers and duties are spelled out specifically by statute. In the case at bar, the relevant statutes require a holding similar to the one reached in Raynor, supra.

(People v. Grosunor, 108 Misc. 2d 932, 934-935)

The Monroe County District Attorney's duties are set forth in the Monroe County Charter, C7-8, and do not include representation of any police agencies. Each agency does, however, have its own counsel, and counsel for each agency has already indicated that they do not oppose issuance of the subject subpoenas in this case.

The Court in Grosunor also noted that "the motion to quash is made by the adversely affected and interested person and not by strangers to the litigation or by the District Attorney." 108 Misc.2d at 935.

In People v. Weiss, 176 Misc.2d 496, the trial court recognized that the prosecution had "no standing to quash a defense subpoena served on a third party, not its agent (cites omitted)." 176 Misc. 2d at 497.

The District Attorney's Office does not have the statutory authority to represent other agencies, and moving to quash a subpoena on another agency would constitute such representation. The District Attorney's Office does not fall within the category of parties traditionally recognized by courts as having standing to move to quash subpoenas to third parties. The statutes providing for notice to the prosecutor of subpoenas to be served on governmental agencies does not provide a procedure for the prosecution to object. For all of these reasons, defendant respectfully submits that the prosecutor does not have standing to object to defense subpoenas served on third parties.

B. The Prosecutor's Arguments

In response to defendant's motion in a recent case, the prosecutor cited Brown v. Grosso (285 AD2d 642) for the proposition that he has standing to object to the subpoenas defense counsel seeks in this case. He noted that the Court in Brown v. Grosso cited Matter of Pirro v. LaCava, 230 AD2d 909, Morganthau v. Young, 204 AD2d 118 and Matter of Morganthau v. Cooke, 85 AD2d 463.

In Brown v. Grosso the Second Department granted a writ of prohibition denying enforcement of subpoenas served upon the Queens County District Attorney's Office and the Civilian Complaint Review Board. Without stating its reasoning, but citing the cases noted above, the Court stated "the District Attorney had standing to seek prohibition of the enforcement of the subpoena served upon the Civilian Complaint Review Board."

In Pirro v. LaCava, cited in Brown, the Second Department issued a writ of prohibition reversing the trial court's granting of three defense applications. The trial court had granted defense requests to preserve all evidence relating to the criminal investigation, for pre-indictment issuance of a subpoena duces tecum directing the Medical Examiner's Office to produce material related to the autopsy examination, and for a pre-indictment application of the defendant to allow inspection and documentation of the victim's home. The decision did not indicate that there was any specific need for the material cited by the defense, nor a specific proceeding approaching for which the material was necessary. Thus, the Court concluded that the requests were an effort to expand discovery. Notably, the Court characterized the orders as requiring "the People to make disclosure which they are not required to make pursuant to the governing statutes (cites omitted) 230 A.D.2d at 910.

In Morgenthau v. Young the First Department held that, in a civil forfeiture proceeding, the prosecutor who was seeking attachment of defendant's assets had standing to move to quash subpoenas that would have an impact on an underlying criminal case. Ultimately, however, the Court denied the prosecutor's application to quash subpoenas, noting that the factual dispute at the hearing relating to attachment of the defendant's assets "made it a proper exercise of discretion to permit defendants to subpoena the other participants in these conversations, who will be the main prosecution witnesses in the underlying criminal case." 204 AD2d at 119.

Finally, in Morgenthau v. Cooke, the First Department considered the District Attorney's challenge to the plan temporarily assigning judges in New York City courts. The Court noted that the District Attorney had standing to challenge the judges' reassignments.

Thus, the cases cited by the prosecutor in support of his contention that he had standing to object to issuance of the subpoenas sought by defense counsel, were either inapplicable to the present situation procedurally or substantively.

Morgenthau v. Cooke is inapplicable as it related to a prosecutor's standing to challenge assignment of judges. In Young, an attachment proceeding, there was apparently a showing that the prosecutor's case would be detrimentally impacted by the issuance of the subpoenas (though ultimately the relief sought by the prosecutors, quashing of the subpoenas, was denied). Such a showing was not made in the case at bar. And unlike the situation in Young, a civil proceeding, if the issuance of the subpoenas in this case might damage the prosecutor's case due to revelation of exculpatory material, defendant has a right pursuant to Brady v. Maryland to obtain the material without a subpoena and the prosecutor has an obligation to disclose it.

In the only two decisions stating the prosecutor has standing to challenge a subpoena, Brown v. Grosso and Pirro v. LaCava, both Second Department decisions, the Court found that the defense was seeking expansive and impermissible expansion of discovery, and thus permitted the prosecutor to intervene by filing writs of prohibition. In the two criminal cases, there is no indication that the prosecutor was permitted to file motions to quash the subpoenas. There is no indication that the Court relied on any authority to find that a party without a possessory interest in the records had standing.

Significantly, there is no provision contained in the Criminal Procedure Law for the prosecutor to file a motion to quash once notice is received.

Plea Without Written Order Denying Suppression Forfeits Issues

Get it in writing. How many times have we heard that? It's good advice, sometimes it's even the law.

CPL 710.70(2) provides that "An order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty." The word used is "order", while the Legislature elsewhere in the same article freely used the word "determination" (e.g. 710.40[3] "When the motion is made before trial, the trial may not be commenced until determination of the motion.").

Because the statute provides only that an "order" is appealable, the Appellate Division, Fourth Department has ruled that the "defendant forfeited the right to our review .. inasmuch as he pleaded guilty before the court determined whether suppression was warranted." (People v Nunez, 73 AD3d 1469). And in case you were hoping that the court's use of "determined" might help in cases where the judge rules against you, but does not issue an order finally deciding the issue against you, stop hoping. The case concludes with "Although a defendant convicted upon a plea of guilty may seek review of 'an order finally denying a motion to suppress evidence' (CPL 710.70[2]) upon an appeal from a judgment of conviction, no such order was issued in this case." As if Nunez was unclear, see also People v Dwyer, 73 AD3d 1467; People v Releford, 73 AD3d 1437; People v Ellis, 73 AD3d 1433, like Nunez all decided by the Appellate Division, Fourth Department on May 7, 2010.

This is something you can expect to see many, many times over the coming years. If there is any possibility of filing a notice of appeal from a plea following the denial of any suppression motion, you need to have the resulting decision reduced to writing, or the issue is forfeited by the plea of guilty. Get it in writing is good advice, even if what you get in writing is bad news.

Saturday, August 28, 2010

Ex Post Facto Protection Remains in a Post-Booker Sentencing World

by Mark D. Hosken,
Supervisory Assistant Federal Public Defender,
Western District of New York

The Ex Post Facto clause (U.S. Const. Art. I, §9) prohibits laws that increase the punishment for a crime after its commission. Garner v. Jones, 529 U.S. 244, 249 (2000). That protection is extended to the application of the United States Sentencing Guidelines. See U.S.S.G. §1B1.11(b)(1). Section 1B1.11 directs the application of an earlier guideline manual if application of a later manual would violate the Ex Post Facto clause. If an amended guideline section or enhancement substantially disadvantages the defendant, the application of the section or enhancement would violate the Ex Post Facto clause. Miller v. Florida, 482 U.S. 423, 432-433 (1987).
The Department of Justice is litigating a different position. The government maintains that Ex Post Facto protection is no longer relevant in determining which version of the Guidelines manual applies even if the amended section is more onerous to the defendant. The argument seemingly relies on Booker’s holding that the guidelines are advisory. Simply put, the contention is that since the guidelines are advisory, there can be no risk of increased punishment. For various reasons, the government’s position is flawed.
In Miller, the Supreme Court held that the application of a Florida sentencing scheme, similar to the U.S.S.G., violated the defendant’s Ex Post Facto protection. The decision addressed the central inquiry of the Ex Post Facto protection: was the defendant given fair notice of the punishment? The necessary analysis is whether the law applies to events occurring before its enactment and whether it substantially disadvantages the defendant. The Florida sentencing scheme set a sentencing range of 3 1/2 years to 4 1/2 years at the time the defendant committed his offense. Later changes increased the range to 5 1/2 years to 7 years when the defendant was sentenced. This substantially disadvantaged the defendant as it made “more onerous the punishment for (conduct) committed before its enactment.” Id at 435. As a result, the Ex Post Facto clause was violated.
A recent example demonstrates the continued viability of Ex Post Facto protection. A defendant is convicted of defrauding the United States (18 U.S.C. § 641) by securing federal FEMA funds by falsely claiming he resided in New Orleans during the Hurricane Katrina catastrophe. The defendant’s criminal conduct was complete in September 2005.

Congress decided to increase the punishment for future fraud-related offenses similar to those occasioned by the Katrina disaster. The lawmakers enacted 18 U.S.C. § 1040 pursuant to Pub.L. 110-179. This legislation created a 30 year felony (Fraud in Connection with a Major Disaster or Emergency Benefits) instead of the 10 year maximum for 18 U.S.C. § 641. The effective date for the new crime was January 7, 2008. This was 27 months after the criminal conduct was completed in our example. The Sentencing Commission created an enhancement [2B1.1(b)(11)] to implement the directives of the new statute. This enhancement if applied to the defendant’s completed conduct would result in a doubling of the offense level from 6 to 12. The amended enhancement became effective on November 1, 2008. This was 37 months after the criminal conduct was completed in our example.
U.S.S.G. § 1B1.11(a) directs the use of the guideline manual in effect on the date of sentencing. Such application is modified by subsection (b)(1). This caveat requires the application of the earlier manual (date of offense) if the later edition violates the Ex Post Facto clause. Thus, the proper U.S.S.G. manual is the earlier one in our example.
The government argues the sentencing court need not use the earlier - and more favorable to the defendant - guideline manual. Such claim ignores the Supreme Court’s direction that the Guidelines remain the starting point and the initial benchmark in every sentencing proceeding. Gall v. United States, 552 U.S. 38, 49 (2007). Numerous courts rejected the government’s claim and applied the Ex Post Facto protection to post-Booker sentencings. See United States v. Turner, 548 F.3d 1094, 1099-1100 (D.C. Cir. 2008) (using a later version of the guidelines created a substantial risk that the defendant’s sentence was more severe, thus resulting in a violation of the Ex Post Facto Clause); United States v. Lanham, __F3d__, 2010 WL 3305937, *12 (6th Cir. Aug.24, 2010) (“the advisory nature of Guidelines does not completely eliminate Ex Post Facto concerns.”); United States v. Lewis, 603 F.Supp.2d 874, 877 (E.D. Va. 2009) (the clear preponderance of reviewing courts seem to favor post-Booker application of the Ex Post Facto Clause to sentencing guidelines calculations); United States v. Doyle, 621 F.Supp.2d 345 (W.D. Va. 2009) (rejecting the use of the higher 2008 guidelines and instead applying the 2003 guidelines in effect at the time of the commission of the child exploitation offenses); United States v. Kladek, 651 F.Supp.2d 992 (D. Minn. 2009) (rejecting the use of the higher 2008 guidelines and instead applying the 2000 guidelines in effect at the time of the commission of the tax offenses); United States v. Sweeney, __F.Supp.2d__, 2010 WL 2222264, *4 (S.D.N.Y. June 3, 2010), (collecting cases and applying the 2003 guidelines in effect at the time of the conduct rather than the more onerous 2008 guidelines in effect at sentencing in a child exploitation case); United States v. Kilkenny, 493 F.3d 122, 127 (2d Cir. 2007) (holding that, the application of a particular version of the sentencing guidelines is retrospective, for purposes of the Ex Post Facto Clause, if the version went into effect after the last date of the offense of conviction); United States v. Johnson, 558 F.3d 193, 194 & n.1 (2d Cir. 2009) (per curiam) (explaining Kilkenny); and United States v. Gilmore, 599 F.3d 160, 166 (2d Cir. 2010) (at a minimum, in order to raise an Ex Post Facto concern, a law must apply to events occurring before its enactment).
The Second Circuit recently reaffirmed the Ex Post Facto principle in a post-Booker analysis. Though the reasoning was not determinative to the issue before the Court, the panel agreed the Ex Post Facto Clause applies: “Our holding continues to prevent the Sentencing Commission and Congress from imposing a heightened punishment following the commission of the criminal conduct triggering that punishment.” United States v. Kumar,___F.3d__, 2010 WL 3169270,*12 (2d Cir. Aug. 12, 2010). Judge Sack, in his dissenting opinion, agrees with the majority on this point:
“The majority and I begin on common ground. We first assume that the Ex Post Facto doctrine applies to the Sentencing Guidelines after the Supreme Court decided, in United States v. Booker, (citation omitted), that the guidelines are advisory. We then agree that [f]or a law to contravene the Ex Post Facto clause, two critical elements must be present: First, the law must be retrospective, that is, it must apply to events occurring before its enactment; and second, it must disadvantage the offender affected by it.”
Id at *25.
Recently, the Honorable David G. Larimer rejected the government’s argument that the application of a more severe guideline enhancement would not impact the Ex Post Facto protections. Judge Larimer recognized the higher guideline sought by the government would disadvantage the defendant. The Court decided the importance of the guidelines as a starting point in the sentencing process was enough to trigger the use of the earlier, less severe guideline manual. United States v. Lewis, Docket No. 10-CR-6060-001, WDNY, (decided Aug. 19, 2010).

The use of the later book in our example to apply the enhancement would violate the protections of the Ex Post Facto clause. The enhancement doubling the guideline range is the result of legislative action by Congress many months after the offender’s conduct was complete. The government seeks to retroactively apply the onerous enhancement to the defendant. If successful, that guideline enhancement would apply to events that ended before the legislative amendment. Moreover, such application would disadvantage the defendant by doubling his guideline range. Such application would be unconstitutional. The proper guideline to be applied in our example is the earlier manual. Contrary to the government’s contention, the protections of the Ex Post Facto clause remain for post-Booker sentencings.

Tuesday, August 3, 2010

Missing jurors

Nobody gives Parker warnings to the jury. No judge says to the jury "if you fail to appear, the trial will continue without you". If they did, then the jury might feel free to stay home instead of being afraid someone would come looking for them. So what do you do if parts of your jury don't show up when they're supposed to? CPL 270.35(2)(a) is one of the better statutes in terms of being specific. Basically, any juror who does not return within two hours can be replaced.

It's not quite that simple. Upon learning that one of our jurors is missing, the trial judge is required to conduct a "reasonably thorough inquiry" to determine whether the juror is reasonably likely to return within two hours of the time court was scheduled to resume. This is why the ADA will call the area hospitals. It's like advertising in the Daily Record to give notice to someone you know is living in California. Pointless though they may be, the formalities must be observed.

As to the two hours, note that it's not two hours from the time of the phone call. If the juror will not return within two hours of the time set for the trial to continue, then the juror can be replaced. So if you find out about problems at 4PM today and the trial is supposed to continue tomorrow at noon, any juror due back by two tomorrow cannot be replaced. If you find out about the problem at 4PM, and court was scheduled to begin again at 2:30, any juror not due back until after 4:30 can be excused. You have a right to be heard before any juror is excused, and the court must place the reasons for dismissal on the record (CPL 270.35[2][b&c]).

What if the jury is deliberating? The judge cannot replace a deliberating juror without the defendant's express written consent, executed in open court (CPL 270.35[1]; People v Gomez, 308 AD2d 460 [2d Dept 2003]). The defense doesn't need a good reason - or any reason - to refuse to consent. If you think replacing the deliberating juror would be a mistake, then the court must declare a mistrial and schedule a new trial date.

Saturday, July 10, 2010

Repugnant Verdicts

Juries are permitted to deliver stupid verdicts. They can believe the wrong people, accept the ridiculous while rejecting the obviously true. They cannot, however, square a circle.

So some verdicts will arguably be repugnant. A verdict is repugnant when it is logically inconsistent, not when it's factually stupid. In other words, a combination of convictions and acquittals will be legally unacceptable when, no matter what evidence the jury might have accepted or rejected, this combination is impossible to reconcile with itself. A verdict is repugnant if an acquittal on one charge conclusively negates a necessary element of a crime for which the defendant was convicted (People v Tucker, 55 NY2d 1 [1981]). A verdict is also repugnant/inconsistent if the defendant is convicted of two counts which effectively find differing mental states as to the same act (People v Gallagher, 69 NY2d 525 [1987] [the same murder cannot be both intentional and depraved]).

Few verdicts are actually repugnant. If the jury could find a reasonable doubt as to the element of one crime, e.g assault, without necessarily finding a reasonable doubt as to another crime, e.g. robbery, then acquittal on the first is not repugnant even if there is a conviction on the second. It might be stupid, if the robbery allegations seem to be entirely dependent on and peripheral to the existence of the assault, but that is not the same as legally inconsistent. The jury can accept some and reject some of the same sentence, though I do not believe that it can accept a fact for one purpose and reject it for another. The evaluation is much like a rule against perpetuities problem. If you can imagine a combination of findings which permit the verdict, it's permissible.

A verdict which includes one ore more acquittals and is ruled to be repugnant will result in the jury reconsidering those acquittals. CPL 31.50(2) provides that if the
jury renders a verdict which is legally defective then the court “must explain the defect or error and must direct the jury to reconsider such verdict”. Therefore, dealing with repugnance is a two step process. One, is the verdict repugnant? Two, is your client better off if you keep your mouth shut? The best way to deal with a complex case is to consider, while the jury is out, what combination of verdicts might be repugnant, and whether you want to object. That way you're not scrambling to make the calculation in a rush. Failing that, request a brief delay in releasing the jury to consider your options.

This is why a claim that the verdict is repugnant must be raised before the jury is discharged to preserve the claim. The assumption is that defense counsel made a strategic choice not to raise repugnance, to avoid the remedy.

Finally, repugnance is not tested by referring to what the law actually requires, it is tested by referring to the law as it was given to this jury, even if the charge was erroneous (People v Green, 71 NY2d 1006 [1988]).

Saturday, July 3, 2010

People v Perkins - Court of Appeals - June 29

The defendant physically resisted appearing in a lineup. Police then took a photograph of his face, telling him it was necessary for a “prisoner movement slip”, and they did the same for the fillers. The complainant picked the defendant from this “lineup”, as he had done from a prior photo array. Because lineup identifications are admissible, and photo arrays are not, the prosecution argued that the defendant improperly denied them useful evidence, and therefore the second photo array was admitted at trial, even though a true lineup was successfully conducted five months later.

The Court of Appeals
said this was not an abuse of discretion. It is important to note that admissibility was on a theory that the defendant cannot benefit from “his own wrong”, not that photo arrays are admissible as a matter of discretion. Further, the length of time between the two lineups was important to the decision as well. Had the defendant co-operated a few weeks later, I do not believe that this 'photo lineup' would have been admissible. I think that this type of procedure is a cattle prod to co-operation, not an open door to photo arrays becoming admissible at trial.

People v King - Court of Appeals - June 29

County court had ruled that police had no basis to stop the defendant, and that it could not be concluded that he stopped voluntarily. County court nonetheless refused to suppress the evidence obtained from the stop. The Court of Appeals reversed and suppressed. All that is surprising is that three judges dissented from this two paragraph opinion.

The dissenters objected that, since the defendant and a companion were on separate motorcycles, when police legitimately stopped the friend both riders pulled over, since it was unclear who was being signalled. The dissenters admitted that the officer did not direct defendant “either to stay or leave”, and thus he remained until another officer arrived and noticed he was drunk.

Maybe I am missing something. Perhaps the dissenters focused on the word "stop" and concluded that pulling over the defendant was an acceptable collateral consequence to the legitimate stop, which is reasonable enough. However, it seems to me that if the police do not inform the second rider that he is free to leave, then his continued detention is coerced and therefore illegitimate. The dissenters analogy was to a passenger in a car, who is detained when the driver is. This seems inapt. Passengers do not travel in their own vehicles, hence the name.

If an officer shouts "stop" at a pedestrian he is not free to detain everyone within earshot for as long as he likes so long as they stopped when he shouted. The only mistake the majority made, that I can see, was in failing to revise and extend their memorandum to beat the dissenters with blunt prose.

Thursday, June 17, 2010

People v Frederick - on the unspecified powers of the court and consecutive sentences after bench trials

People v Trevor Frederick, decided June 10th, is an odd set of facts. Defendant was found guilty of attempted murder as to his former girlfriend, but the jury hung on felony murder regarding the death of the man she was with. The prosecution obtained a new indictment adding Manslaughter in the first degree. On this basis, the original indictment was dismissed by the court. On motion of the defendant, the court dismissed the new indictment because Manslaughter first had been a joinable, uncharged offense to the first indictment, and therefore was improperly added to the superseding indictment. The court then un-dismissed the original indictment. The Court of Appeals said this was fine: “Although the Criminal Procedure Law does not expressly provide for reinstatement of an indictment under the circumstances presented in this case, it does not preclude what Supreme Court did either.” Curiously, there is nothing in the CPL which prohibits trial courts from performing open-heart surgery using obsidian knives either, and a great many other things. There is a trend of sorts at the Court of Appeals, granting powers to trial courts simply because the power in question is not explicitly prohibited (see e.g. People v Wrotten decided 12/15/09).

This case also stands for and additional proposition: after a bench trial, the trial judge has greater scope to impose consecutive time, because “this was a nonjury trial where the judge, as factfinder, would have known when he sentenced defendant what facts he had found. There is no uncertainty about whether the facts supported a consecutive sentence owing to a lack of specificity in the jury charge”. Facts under which concurrent time would have been mandatory
, had there been a jury, will permit consecutive time after a bench trial, on the theory that the trial judge would only have imposed a consecutive sentence if the verdict was based on conclusions which would permit such a sentence. Twenty-five to life consecutive: another reason never to waive a jury trial without a very good justification.

Right to Counsel - need for a clear record of prior representation

In People v McClean, decided June 10th, the Court of Appeals held that, while right to counsel deprivations are normally reviewable even in the absence of an objection, the record must be clear that there was a deprivation, so a form of preservation requirement sneaks in through the back door.

Here, defendant had spoken to police - in the presence of counsel - about the homicide in question. Three years later, he spoke to them without counsel. The Court of Appeals questioned whether the prior counsel was really representing the defendant on the murder (in which he was a suspect), or merely on the robbery which prompted defendant to co-operate on the murder. The failure of the defendant to make clear at the Huntley hearing that the prior representation was on both matters rendered the question both unpreserved and unclear on the record because “we cannot say that no evidence the People might have presented would lead us to hold otherwise”. This is an interesting formulation, as we also cannot say that no evidence the People might have presented would lead a court to hold that two plus two is a fish stick dipped in custard. Three judges dissented, saying that the attorney who was talking to the police on behalf of the defendant about a homicide and a robbery was representing him on the homicide and on the robbery, and not acting as his lawyer on the robbery and as his personal masseuse and haberdasher on the homicide.

This case also stands for the proposition that if your client is a suspect in a murder, don’t take him to the police to talk about it.

Tuesday, May 25, 2010

A Particularized Review of Bill of Particulars

To understand the need for a bill of particulars it helps to first review the history of indictments in New York:

In People v. Iannone, 45 N.Y. 2d 589 (1978) the Court of Appeals reviewed the history of the use and purpose of indictments. The right to be prosecuted by indictment is guaranteed by section 6 of article 1 of the NY State Constitution. No particular form is constitutionally mandated. The Court stated in Iannone, "The requirement of indictment by Grand Jury is intended to prevent the people of this State from potentially oppressive excesses by the agents of the government in the exercise of the prosecutorial authority vested in the state (cite omitted)."

The Court noted that an indictment has traditionally served several purposes. "First and foremost, an indictment has been considered as the necessary method of providing the defendant with fair notice of the accusations made against him, so that he will be able to prepare a defense. (cites omitted). This function of the indictment is founded not upon the right to indictment by a Grand Jury, but rather on the notice requirement of section 6 of article I of our State Constitution and presumably that of the Sixth Amendment to the Federal Constitution as well. Achievement of this purpose historically involved both a legal and a factual statement: normally the indictment has been required to both charge all the legally material elements of the crime of which defendant is accused, and state that defendant in fact committed the acts which comprise those elements."

The Court continued by recognizing that another traditional function of the indictment has been to provide some means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted by the Grand Jury, rather than some alternative seized upon by the prosecution in light of subsequently discovered evidence. (When the acts vary from what the Grand Jury indicted on, that is guessed it...variance!)

Another purpose of the indictment as addressed in Iannone is the "proper means of indicating just what crime or crimes defendant has been tried for, in order to avoid subsequent attempts to retry him for the same crime or crimes (cite omitted)." (Think: double jeopardy)

The Court noted that under common law (before the Code of Criminal Procedure which preceded the Criminal Procedure Law) "the indictment was an arcane and intricate work of art which all too often served to mystify rather than to inform defendants."

Then along came the Code of Criminal Procedure in 1881. The indictment requirements were simplified - the Code only required a description of the section of the law a defendant was alleged to have violated. Then along came the CPL which replaced the Code. One reason for the change was that the indictment under the Code "often told the accused little about the nature of the crime he was accused of committing."

Under the Code an indictment did not provide much information to a defendant, but the Court of Appeals found that the defects in the simplified indictment were alleviated by the fact a defendant could demand a bill of particulars, which was a right under common law but not codified.

The CPL codified the Bill of Particulars rules (CPL 200.95). So an indictment may still be a fairly simple description of the law the defendant is alleged to have violated and the conduct which constituted the violation, but the right to a bill of particulars is considered the antidote to a vague indictment.

Here's the money quote: "Any effort to leave a defendant in ignorance of the substance of the accusation until the time of trial must be firmly rebuffed. This is especially so where the indictment itself provides a paucity of information. In such cases, the court must be vigilant in safeguarding the defendant's rights to a bill of particulars and to effective discovery."


The BOP statute, CPL 200.95, sets forth a definition of the bill of particulars and procedures relating to making a request and getting a court to enforce it. Pursuant to CPL 200.95(1)(a), "(a) 'Bill of particulars' is a written statement by the prosecutor specifying....items of factual information which are not recited in the indictment and which pertain to the offense charged and including the substance of each defendant's conduct encompassed by the charge which the people intend to prove at trial on there direct case, and whether the people intend to prove that the defendant acted as principal or accomplice or both...However, the prosecutor shall not be required to include in the bill of particulars matters of evidence relating to how the people intend to prove the elements of the offense charged or how the people intend to prove any item of factual information included in the bill of particulars."

Think of the definition as a floor, not a ceiling. In other words, consider whether your indictment fails to sufficiently specify conduct, a crime, or leaves open the possibility that more than one crime is encompassed by a count of the indictment (duplicity).

When a prosecutor responds to an argument that we are not entitled to a bill or specific responses in the bill because we received discovery, they are a little right and more wrong. Iannone notes that the discovery statute helps a defendant to have more notice than in the bad old days. But discovery does not tell us what the grand jury indicted on. A bill of particulars is necessary for that. And sometimes a Bill can't fix a broken indictment (or local court accusatory instrument). If the indictment cannot be cured by the Bill, you should move to dismiss the indictment.

So the bill of particulars, instead of being a waste of several good pieces of paper, can be a document that provides greater detail and notice about the charges a defendant faces and the conduct s/he is alleged to have engaged in. But it will only do that if we ask it to.

Bills of particulars are especially important in sex offenses. If there is a large range of time in which the offenses are alleged to have occurred, we should be requesting greater detail in the request for the bill. But bills are important in many other cases too - assaults and homicides. Consider asking about causation and injuries. And which offense occurred at which time in relation to others. Bills can be extremely important in all sorts of cases, and the more creative you are, the more likely you will be to succeed in either having charges dismissed based on insufficient notice contained in your accusatories and bills, or getting more detail to prepare for trial.

In a recent case the Judge ordered that the DA provide a response to the Bill of Particulars. When she did, she alleged acts that were not heard by the Grand Jury. The indictment was defective and not cured by the Bill, so the indictment was dismissed. (Okay, so the DA re-indicted... but still.)

A request for a Bill of Particulars must be made within 30 days of arraignment (CPL 200.95(3). If you fail to serve your request in a timely manner, you may waive the right to complain later that the indictment was defective: See, People v. Duell, 266 A.D.2d 649.

A prosecutor has to respond within fifteen days of service. If the prosecutor fails to respond, you may move in your motion to compel a response.

Although misdemeanor accusatories are not based on grand jury proceedings (usually), you are entitled to a Bill of Particulars in those cases too. And failure to provide sufficient notice of conduct in the misdemeanor accusatory and Bill can result in dismissal of a misdemeanor charge. See, People v. Sedlock, 8 N.Y.3d 535.

Prepared by Jill Paperno, Second Assistant Monroe County Public Defender

Tuesday, May 11, 2010

Court of Appeals Refuses to Permit Vacatur of Plea where agreed upon sentence unlawfully severe

People v Backus, decided today, is one of those short Court of Appeals decisions which seem innocuous, but cryptic, until you read the decision below. The Court of Appeals held simply that the appellate division should be reversed and that the People were not permitted to move to vacate the plea, noting inter alia that the prosecution did not appeal.

On review of the decision below, however, it looks important. Three Fourth Department judges had held that the sentences imposed - on a plea of guilty - could not run consecutively, and therefore the matter would be remanded and the prosecution could move to vacate the plea as they didn't get their bargained-for sentence. The two Appellate Division dissenters (one of whom granted leave), agreed that the sentences could not run consecutively, but noted that the court was permitted to simply impose a sentence of one year, and that this course of action would be better. It specifically noted that the appellate court may "in its discretion" resentence instead of remand.

The Court of Appeals decision, read in light of the AD4th facts and decision, seems to me to hold that if the prosecution bargains for an illegally long sentence, that it does not have the right to withdraw permission for the plea - and have it vacated - when that illegality is cleared up.
It may have been factually important that the defendant had served the entire one year which could have been legally imposed, but if so, that was not made clear in the CoA opinion.

This case seems significant to me, since in the past any illegal local court sentence was nonetheless enforceable so long as there was a state prison cell waiting for a defendant with the temerity to challenge that sentence. The Court of Appeals cited two cases. Matter of Kisloff v Covington, which held that where the defendant entered a plea to an attempted "E" with a promise of 1.5-3 (because everyone thought the attempt to commit an E was an E, not a misdemeanor) that the prosecution could not seek to vacate the plea. Matter of Campbell v Pearce also held that once a defendant has started his sentence the court cannot vacate the plea because jeopardy had attached.

Properly understood, I think this Court of Appeals decision that "County Court lacks the power to vacate the conviction or plea" removes the threat of state time from people who successfully challenge illegally severe local court sentences, and prevents vacating a plea induced by an illegally severe sentence, if that sentence has been commenced.

Wednesday, April 28, 2010

Another Exoneration After a False Confession In Monroe County

On Wednesday, April 28, 2010, two months after Freddie Peacock's 1976 rape conviction was vacated in Monroe County because DNA evidence established Peacock's innocence, the 1992 Monroe County murder conviction of Frank Sterling was vacated and the charge dismissed when DNA evidence and the confession of the real killer proved Mr. Sterling's innocence. (For a detailed account of the Frank Sterling case see this article and this article) The court vacated Mr. Sterling's conviction pursuant to a motion filed jointly by the Innocence Project, ETKS partner Donald M. Thompson, Dotan Weinman, of Weil Gotshal & Manges and the Monroe County District Attorney's Office.

As was the case with Mr. Peacock (see) the primary evidence against Mr. Sterling was a false confession. This confession was attacked as false at Mr. Sterling's trial at which Dr. Robert Goldstein testified that it was the product of suggestive hypnosis.

Additionally, since 1992 there was evidence that Mark Christie had accurately confessed to the murder for which Mr. Sterling was charged. And yet after Mr. Sterling was convicted, the court refused to even hold a hearing on a 330 motion based on the evidence of Mr. Christie's admissions. And then the Appellate Division, Fourth Department affirmed the conviction (209 AD2d 1006 [4th Dept 1994]), rejecting arguments that the confession was unreliable and that a hearing should have been ordered.

When more witnesses came forward with evidence that Christie had committed the murder a 440 motion was filed and denied. Again, the Appellate Division, Fourth Department affirmed the ruling denying the innocent Mr. Sterling a new trial (267 AD2d 1053 [4th Dept 1999]).

Mr. Sterling then moved, pursuant to CPL 440.30(1-a, for DNA testing. This motion was denied (6 Misc3d 712 [Mon Co 2004]), on a finding that "the defendant has failed to demonstrate that a reasonable probability exists that a more favorable outcome at trial would have been forthcoming had the results of any DNA testing of the aforementioned items been introduced at his trial." The Appellate Division, Fourth Department affirmed the ruling denying the innocent Mr. Sterling access to the evidence which would eventually help prove his innocence (37 AD3d 1158[4th Dept 2007]).

Ultimately, despite these court rulings, testing was done and Mr. Sterling's innocence was established. The courts' reliance on a false confession after a twelve hour interrogation, of which only 20 minutes were recorded, led to the repeated affirmance of a wrongful conviction. As a result, Mr. Sterling was in prison for 18 years for murder he did not commit. One continues to wonder when courts will acknowledge the obvious and develop a reluctance to credit statements obtained after unrecorded interrogations. False confessions are present in about a quarter of the wrongful convictions exonerated by DNA evidence (see).

Finally, I am proud to note that for the past 16 years Donald Thompson, my partner and hero, has been the attorney for Mr. Sterling. Don was also the attorney who successfully fought for the exoneration of Mr. Peacock and Douglas Warney (see). (In all three cases Don enlisted the excellent attorneys of the Innocence Project to join his efforts). Three innocent men incarcerated on false confessions and then freed, in part, due to Don's efforts.