Wednesday, March 31, 2010

Defense Attorneys Are Ineffective When They Fail to Advise Clients of Clear Immigration Consequences of A Plea

As detailed at New York Criminal Law and Procedure the United States Supreme Court in a decision authored by Justice Stevens held that as a matter of federal constitutional law, attorneys have a professional duty to advise their clients of immigration consequences, at least when those consequences are clear. Even when federal law is not so clear, an attorney still has a duty to advise the client that deportation "may" result from a guilty plea. This, of course, is a very different holding and standard than the New York Court of Appeals had set forth in People v Ford (86 NY2d 397) in which the Court held that while it is ineffective assistance to affirmatively give bad advice on the immigration consequences, attorneys need not say anything.

New York's Persistent Felony Offender Sentencing Law Ruled Unconstitutional

A discussion of an important decision regarding the constitutionality of New York’s persistent felony statute requires focus on persistence. For years, Andrew C. Fine of the Appeals Bureau of the Legal Aid Society of New York had urged that the New York persistent felony statute unconstitutionally deprives a defendant of the right to have each fact which increased the penalty a defendant faced to be submitted to a jury and proved beyond a reasonable doubt. In part, Mr. Fine twice challenged the statute at the New York Court of Appeals (People v Rosen, 96 NY2d 329 [2001] and People v Daniels, 5 NY3d 738 [2005]), and at the Second Circuit (Brown v Greiner, 409 F3d 523 (2d Cir 2003]). He also kept advising defense attorneys at numerous CLE presentations and in written practices guides that, despite the holdings of the New York Court of Appeals rejecting these arguments, the issue was still unsettled and should still be raised so that eventually the clients would be eligible for relief when federal appellate courts finally decided the issue.

Mr. Fine’s persistence paid off. He was one of the winning attorneys in the consolidated decisions in Besser v Walsh, _F3d_ [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 statute 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.”

Tuesday, March 30, 2010

Trial Tips For Drug Cases with Undercover Officers

More tips from an experienced and successful attorney who wishes to be unnamed:

In an undercover cop case, it's helpful to know their procedures. With hand to hand sales, usually the undercover is dropped at or near a location by other members of the team. Sometimes they drive by and make a purchase from the car. They wear electronic recording devices called Kel Kits which are monitored by the back-up team. The undercover walks up to someone, makes a transaction, and then when the are out of earshot call out to the team "done deal". They have a code word to use during the transaction if they get in trouble. The team will then send in uniforms or perhaps other undercovers to grab the suspects. The undercover will drive by in an unmarked car with another officer (who will probably radio the uniforms that they're coming so the undercover's voice isn't recognized). The ID is done while moving - driving by, as the suspect(s) are on the sidewalk, perhaps with a grass median between the sidewalk and the street. Although the undercover team will claim there was nothing obstructing the view of the undercover officer, the uniforms or other undercovers will most likely pull up to the address where the buy took place (instead of down the street, giving notice to the suspects and an opportunity to run). A uniformed cop may testify to this. The undercovers won't. Although the
officers may have a description of the seller, they may grab everyone in the area whether or not they match the description, and put them in the show up.

Undercover officers have access at RPD to surveillance equipment, and do use it in a variety of circumstances (which they will claim don't apply in your hand to hand sale case). They have unmarked cars and vans outfitted to look like civilian vehicles, from which audio or video can be used to record what's going on. They have mini video recorders which look like buttons that they can wear on their clothing. These can be things you can use to argue that there was a lack of evidence in your case.

If the officer claims he was in danger, and that's why he didn't observe the discrepancies in clothing or appearance between what he called out and what your client looks like, consider whether the recording reflects a fearful tone, whether the code word was used (it wasn't or the team would have come in) and whether, since the officer knew his fellow officers would be responding and wouldn't want to endanger them, the undercover officer called out on the recording used to ensure the safety of officers (remember, that's the reason they use it - at least that's what they say to explain why details of descriptions aren't important) to other officers
about the particular menace or danger of this individual.

If yours is an ID case - they grabbed and identified the wrong guy when the back up team came in - consider the time between when the sale occurred and when the arrests happened. If the recording indicates a particular time that the detail commenced, the cop may claim that they paused the tape. Listen for any pauses, and be aware that they may come up with this. And listen for the DA's direct, "directing your attention to (date) at (time), what were you doing? Which time did the DA open and question on? Consider when the back up team was asked to be in the area.

Tips on Jury Selection For Defense Attorneys

These suggestions were passed on to me by an excellent, experienced attorney who wishes to remain anonymous:

1. In jury selection you will be engaging in several efforts at once -picking the jurors who are best for your case, educating the jury, developing your challenges for cause, figuring out who these people are, and letting the jury know you are way cooler than the DA. On challenges for cause, when you develop them the judge may swoop in and try to rehabilitate the juror by asking, "You will follow my instructions, won't you?" in some menacing fashion from on high, black robe billowing. If this happens during your voir dire, you can may still be able to ask the juror afterwards about his or her original concerns, and revive the challenge. If a juror says "I think I can be fair" or answers the judge's questions (or yours or the DA's) in an equivocal way that's not enough to avoid the challenge for cause. (People v Arnold [96 NY2d 358, 363]). Make sure that your challenge is on the record - in case the judge incorrectly denies the challenge.

If a judge tries to rehabilitate the jurors as a group with general questions after you're done, you should object or oppose this, and ask for the judge to do individual voir dire as to the individual issues. If the judge refuses to do that, you may have an issue to preserve. More on that below. You should also ask for an opportunity to question the jurors again if the judge rehabilitates them. Yes, t.This may irritate the judge, but that's not the goal. If the judge doesn't let you question after the judges' questions, in the next pass (if there is one) ask the jurors, if they have expressed a concern that presents a challenge for cause, to remember that concern if the judge asks them at the end of your questions whether they can follow his/her instructions.

If you have a challenge for cause issue you want to preserve for appeal (meaning that you believe that the court incorrectly denied a challenge),
YOU MUST EXHAUST YOUR PEREMPTORY CHALLENGES
.
Be aware, this can be scary stuff. You have to use all your perempts, but you don't want to have lots of jurors left to select when you do this (unless it's a case you are unlikely to win and this is your best issue). You may wind up where the DA has challenges left and you don't. So you'll have to weigh how important preservation of this issue is against what your jury pool is looking like and your feelings
about the case.

2. Jury instructions: As you try more cases, you will learn about the different kinds of jury instructions you may request. It's worth taking a look at the CJI and scanning the charges of general applicability. (http://www.nycourts.gov/cji/index.htm). You can weave some of the language and issues into your cases.

Among the charges you should check out: (I'm not sure if these are the
exact titles in the CJI)
1. Credibility - this will almost always be read to the jury. It helps to know what the jury will be hearing
2. Expanded identification - one witness identification case - you should request this instruction in a one witness ID case.
3. Circumstantial evidence - moral certainty - read this one.
4. Drug trafficking expert - for when the cop testifies as an expert, this instruction reminds the jurors a cop is still just another witness who can be believed or not
5. Consciousness of guilt
6. Failure to promptly complain
7. Justification - regular and use of deadly physical force.
8. Missing witness

Many charges have legal requirements you must meet in order to get the charge. Sometimes judges mix them up. If you are basing your case on a charge, or part of your defense on a charge, such as missing witness, justification, failure to promptly complain, identification, make sure you read the case law about when you're entitled to that charge (or ask one of the more experienced attorneys to give you the cases or point you in the right direction). Please be aware, with respect to justification, that if the court concludes that you're not entitled to the charge based on the body of law on justification (and courts will reach this conclusion at
times) you won't get the charge. With missing witness, even if the judge doesn't give the charge, you can still argue it. Also with missing witness - careful what you wish for - you have to ask for it at an early enough point in the case that the DA can have the opportunity to bring the witness in. And they might. (For specific phrasing on the timing requirements, check the case law.)

Please also be aware that if you put on a case, the DA may seek a missing witness charge against you if there's a witness you didn't call, who was not cumulative, who would be expected to testify for you, and who was available.

Identity Information In DMV Records Not Suppressible As Fruit Of Illegal Stop

In People v Tolentino (2010 NY Slip Op 02643 [NY [3/30/10]) the Court of Appeals held that when a defendant alleges that he was subject to an illegal traffic stop, he is not entitled to suppression of DMV records DMV records obtained through the police stop and inquiry of the driver. The Court held that such records are not subject to the exclusionary rule when the only link between the police conduct and the evidence is that the police learned a defendant's name. Further, the Court held that DMV records are not subject to suppression since they are government records compiled independently of defendant's arrest. Consequently, the issue of whether the defendant was unlawfully stopped, and as a result of the stop the police determined that he was driving with a suspended license, need not be litigated at a pre-trial hearing. Judges Ciparick wrote a dissent, in which Chief Judge Lippman joined urging that the deterrent purpose of the exclusionary rule should be applicable to identity-related evidence.

Friday, March 26, 2010

In Absentia SORA Hearing Error Absent Proof of Notice of Hearing

Due process applies to SORA hearings. Thus, in People v Distaffen (2010 NY Slip Op 02634 [4th Dept 3/26/2010]), "[t]he People candidly conceded "that County Court violated the due process rights of defendant when it held the SORA hearing in his absence without verifying that he had received the letter notifying him of the date of the hearing and his right to be present (citations omitted)." The Court therefore reversed the order and remit the matter to County Court for a new hearing and risk level determination in compliance with Correction Law § 168-n (3).

Jurors Who Would Favor The Testimony of Police Are Not Qualified To Serve

In People v Arnold (96 NY2d 358, 363) the Court of Appeals held that when a prospective juror makes a statement or statements that "cast serious doubt on [his or her] ability to render an impartial verdict" (People v Arnold, 96 NY2d 358, 363), that prospective juror must be excused for cause unless he or she provides an "unequivocal assurance that [he or she] can set aside any bias and render an impartial verdict based on the evidence" While no "particular expurgatory oath or talismanic' words [are required,] . . . jurors must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent them from reaching an impartial verdict" (Arnold, 96 NY2d at 362). In People v Lewis (2010 NY Slip Op 02624 [4th Dept 3/26/10])the Fourth Department applied Arnold in the context of the common situation in which prospective jurors state that they would tend to favor the testimony of police witnesses over that of other witnesses:

During voir dire, one of the prospective jurors stated that, as a result of her close association with police officers in the course of her work as a loss prevention officer, she would "probably take the word of a cop" over "the word of somebody else." When defense counsel asked that prospective juror whether she would "tend to give the——the cop the edge on who's telling the truth," she responded, "I would lean that way, yes." There is no question that those statements cast serious doubt on the prospective juror's ability to render an impartial verdict (citations omitted), and the prospective juror failed to provide "unequivocal assurance that [she could] set aside any bias and render an impartial verdict based on the evidence" (citation omitted). The prior collective acknowledgment by the jury panel that the panel members would decide the case solely on what they heard and saw in the courtroom and not based upon any relationships with law enforcement "was insufficient to constitute such an unequivocal declaration" (citations omitted).
With respect to the second prospective juror, the record reflects that she expressed uncertainty about her ability to be fair and impartial as a result of her close relationships with members of law enforcement. When defense counsel attempted to explore the prospective juror's apparent reservations, the court precluded any further inquiry on the matter. Although there is no question that a trial court "necessarily has broad discretion to control and restrict the scope of the voir dire examination" (People v Boulware, 29 NY2d 135, 140, rearg denied 29 NY2d 670, cert denied 405 US 995; see People v Habte, 35 AD3d 1199), we conclude under the circumstances of this case that the court erred in failing to permit defense counsel to conduct further questioning of the prospective juror to determine whether she could provide an "unequivocal assurance" of her ability to render a fair and impartial verdict, or to excuse the prospective juror for cause(citations omitted).

Importantly the reason that the Court was able to reverse was that the defendant had exhausted all of his peremptory challenges before the completion of jury selection.

Evidentiary Errors Lead To Reversal of Sex Crime Conviction

In a rape and sexual abuse trial the trial court refused to allow the defendant to cross-examine the complainant regarding a baseless similar complaint that she had previously made. On the other hand, without a Ventigmigla hearing, the court permitted the People to introduce evidence that the defendant had told the police that, "in the past[,] he had tried forcing sex from women." In People v Loftin (2010 NY Slip Op 02619 [4th Dept 3/26/10] the Appellate Division, Fourth Department held that both of these rulings were error, the impact of which required reversal:

We agree with defendant, however, that County Court erred in precluding him from cross-examining the victim with respect to the petit larceny charge. According to that charge, the victim had assaulted and robbed an ex-boyfriend but subsequently reported to the police that it was the ex-boyfriend who had assaulted her. Those allegations are similar to allegations made by defendant in the instant case, and thus defendant sought to cross-examine the victim concerning that charge "in good faith and with a reasonable basis in fact" (People v Jones, 24 AD3d 815, 816, lv denied 6 NY3d 777). Although the charge against the victim was adjourned in contemplation of dismissal prior to the commencement of defendant's trial, that does not constitute a dismissal on the merits, and it therefore does not "negate the elements of good faith and [basis in fact]" (id.). Under the circumstances of this case, "where the issue of the credibility of defendant vis-À-vis the prosecution witnesses [is] crucial,' " we cannot conclude that the court's error is harmless (People v Ayrhart, 101 AD2d 703, 704; see generally People v Crimmins, 36 NY2d 230, 237).
We further agree with defendant that the court erred in failing to conduct a Ventimiglia hearing with respect to his statements to police that, "in the past[,] he had tried forcing sex from women" and that "it was difficult to take sex if they didn't want to give it up." Although defendant failed to preserve his contention for our review inasmuch as he failed to object to the admission of testimony concerning those statements (see People v Powell, 303 AD2d 978, lv denied 100 NY2d 565, 1 NY3d 541), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; cf. People v Johnson, 233 AD2d 887, lv denied 89 NY2d 1095). The court was required to determine whether the probative value of those statements outweighed the potential for prejudice inasmuch as those statements were not admissions related to the instant charges but, rather, they constituted evidence of prior bad acts (see People v Robinson, 202 AD2d 1044, lv denied 83 NY2d 1006). . In light of the importance of the witnesses' credibility in this case, as noted above, we cannot conclude that the court's error is harmless (see generally Crimmins, 36 NY2d at 241-242; People v Moore, 59 AD3d 809, 811-813).

Appellate Division Orders Defendant Restored To Probation After Revocation by Lower Court

Although the lower court had not abused its discretion in revoking the sentence of probation based upon defendant's admitted violations thereof, the Fourth Department in People v Rapone (2010 NY Slip Op 02611 [4th Dept 3/26/2010])reversed that court's revocation of probation based on a probation violation and its imposition of a prison sentence, and ordered that the sentence of probation originally imposed be continued. The keys facts are as follows:

The original sentence imposed by the court required that he complete 1,000 hours of community service within two years of his release from jail. In November 2006, the community service program advised the court that it had no available placement for defendant based on his physical and mental limitations, and the court took no action at that time. In February 2008, however, a violation of probation petition was filed, alleging that defendant tested positive for cocaine and possessed a driver's license in violation of the terms and conditions of his probation. The petition did not mention defendant's failure to complete the required community service. Defendant admitted his commission of the two violations set forth in the petition, in exchange for a sentencing promise of imprisonment of 1 to 3 years, and the court ordered an updated presentence report. When defendant again appeared in court on June 8, 2008, the court granted his request for an adjournment of sentencing to enable him to begin to comply with the community service component of the sentence. The court indicated that, if defendant established that he was working toward the community service requirement, the violation of probation petition would be "closed" without any sentence of imprisonment.

At the adjourned sentencing date, defense counsel advised the court that the community service administrator had by then received medical authorization permitting defendant to work, and that there was a community service placement available for defendant. The individual responsible for implementing that placement, however, was out of the office for a week, and defendant therefore requested a second adjournment to enable him to establish that he was complying with the community service requirement. The court denied that request, revoked the sentence of probation, and imposed the aforementioned determinate term of imprisonment and period of postrelease supervision on the ground that defendant failed to comply with the community service requirement.

Citing its authority to "substitute our own discretion for that of a trial court [that] has not abused its discretion in the imposition of a sentence" (People v Suitte, 90 AD2d 80, 86; see People v Edwards, 37 AD3d 289, 290, lv denied 9 NY3d 843)" the Court found that

Here, after defendant tested positive for cocaine, he successfully completed a substance abuse treatment program and all subsequent drug tests were negative. Defendant also attempted to implement the community service requirement, including providing the requisite medical documentation to the community service administrator, and it is undisputed on the record before us that the delay in the implementation of defendant's community service placement was not attributable to defendant.

SORA Can't Be Imposed Eleven Years after Expiration of Sentence

In People v Gregory (2010 NY Slip Op 02608 [4th Dept 3/26/10]) the Fourth Department has held that the imposition of SORA registation requirements 11 years after the expiration of the defendant's sentence was impproper. Although the Court rejected defendant's contention that the six-year statute of limitations in CPLR 213 applies to this SORA classification proceeding, it concluded

that vacatur of defendant's risk level determination is appropriate. Although Correction Law § 168-l (8) expressly provides that a failure by the court "to render a determination within the time period specified in [article 6-C] shall not affect the obligation of the sex offender to register," we conclude that the 11-year delay is " so outrageously arbitrary as to constitute [a] gross abuse of governmental authority' " (People v Wilkes, 53 AD3d 1073, 1074, lv denied 11 NY3d 710; cf. People v Sgroi, 22 Misc 3d 902, 905-[*2]906).

Tuesday, March 23, 2010

More on Melendez Diaz

Recently I wrote about how the Supreme Court decisions in Melendez-Diaz(129 S.Ct. 2527 [June 25, 2009]) and Briscoe v Virginia (559 US ___ [1/25/10]) appeared to undermine and contracidt hte holdings of the New York Court of Appeals in People v Rawlins and People v Meekins (10 N.Y.3d 136 [2/19/2008]). Donald Rehkopf, Esq (of the Firm of Brenna, Brenna, and Boyce) provides some useful information for those seeking to challenge those holdings:

Just read your post from late January, RE: Melendez-Diaz, etc., on the NYCD blog - there's another reason to attack Meekins [and now Brown]. The CoA in Rawlins / Meekins relied upon 3 opinions from other states:

1) State v. Crager, [Ohio];
2) Commonwealth v. Verde; [Mass.]; and
3) People v. Geier, [Calif].

Funny things happen, and Brown never addressed them.

1) Crager was pending cert. at SCOTUS when Melendez-Diaz was decided, SCOTUS GVR'd it back to the Ohio Supreme Court, who then, in light of M-D, reversed its original decision in Crager, and ordered a new trial;

2) Melendez-Diaz was affirmed in the State Court's based upon Commonwealth v. Verde, which held that drug analysis reports were "non-testimonial." By reversing M-D, SCOTUS impliedly overruled Verde; and

3) Subsequent to M-D, California Courts have held that Geier is no longer "good law." See, e.g., People v. Dungo, 98 Cal.Rptr.3d 702, 711 n. 11 (Cal.App. 2009), concluding that Melendez-Diaz, abrogated Geier.

So, the legal "foundation" in Meekins [and now, Brown], simply no longer exists.

Finally, if there was any question that the CoA's jurisprudence is wrong, it seems that the Court [and no doubt counsel] overlooked the seminal NY case, which Justice Scalia cited in M-D, People v. Bromwich, 200 NY 386, 93 N.E. 933 (1911) [rejecting “certificates” in lieu of live witnesses for confrontation], cited at 129 S.Ct. at 2539.

Don will be speaking on these constitutional confrontation clause issues at NYSACDL's April CLE in Syracuse.

Showups Identifications Are Disfavored

In People v Blunt (2010 NY Slip Op 02191 [4th Dept 3/23/10]), the Fourth Department suppressed the results of a showup identification where the testimony "established that the incident occurred at approximately 7:25 a.m. and that the showup was conducted at approximately 9:30 p.m., several miles away from the scene of the incident and after defendant had been placed under arrest and drugs were found on his possession." The Court explained that
It is well settled that showup identifications are generally disfavored because they are inherently suggestive by nature, but they nevertheless are not "presumptively infirm" (People v Duuvon, 77 NY2d 541, 543; see People v Ortiz, 90 NY2d 533, 537). Showup identifications must be conducted "prompt[ly]" following the defendant's arrest and they must occur "at or near the crime scene" (Duuvon, 77 NY2d at 544). In determining whether the showup identification is conducted in adequate temporal and geographic proximity to the crime, courts must consider the specific facts and circumstances of each case.

As Defendant Contends In His Pro Se Supplemental Brief . . .

The most difficult and important part of an appellate attorney's job is identifying possible issues. An appellate record is like a puzzle that the attorney must solve to discover what issues are present and worth raising. An issue not raised is not likely to result in reversal. That should be enough incentive to scour the record for possibly meritorious issues. If not, the possibility that the court may reverse a conviction on an issue which you failed to find or declined to raise, but was raised by a client in a supplemental brief, should provide motivation. People v Layou [2010 NY Slip Op 02192 4th Dept 3/23/10] is a reminder of that possibility:

As defendant contends in his pro se supplemental brief, suppression was warranted because the police lacked reasonable suspicion to justify the initial seizure of his vehicle. Here, a police officer effectively seized defendant's vehicle when he pulled into the parking lot behind defendant's vehicle in such a manner as to prevent defendant from driving away (citations omitted). Defendant's presence in a vehicle at 3:40 a.m. in a parking lot located in the general vicinity of a burglary that the police were investigating did not provide the police with reasonable suspicion that defendant had committed, was committing, or was about to commit a crime (see People v May, 81 NY2d 725, 727-728). It is well settled that "innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand" (People v De Bour, 40 NY2d 210, 216). In this case, the arresting officer did not observe any conduct indicative of criminal activity at the time he seized the vehicle, the complainant who had reported the burglary did not mention that the burglars fled in a vehicle, and the officer had no other information tending to connect defendant or the occupant of his vehicle with the reported burglary (citations omitted). Thus, even if there had been a sufficient chain of custody, we nevertheless conclude that the judgment must be reversed . . . inasmuch as the police acted without the requisite reasonable suspicion to justify the initial seizure of defendant's vehicle.

Adverse Inference From Failure To Record Interrogation

As previously noted the Fourth Department ended 2009 by holding that since there is not a constitutional duty for police to record interrogations a defendant is not entitled to an adverse inference charge regarding the failure to record. Yet, both the United States Supreme Court and the New York Court of Appeals have long recognized that a party's failure to produce evidence which would elucidate the transaction in issue, when that party has it peculiarly within his power to produce such evidence, supports an instruction that the jury can draw an adverse inference that the testimony, if produced, would have been unfavorable to the party who failed to produce it. (People v Gonzalez, 68 NY2d 424, 427 [1986]; Gordon v People, 33 NY 501 [1865]; Graves v United States, 150 US 118, 121 [1893]).Importantly, this rule applies even where a party is not required to produce any evidence or that type of evidence. Thus, even though a defendant has no obligation to produce any evidence, once a defendant presents some evidence, his failure to call other witnesses under his control who have information material to the case may be the basis for an adverse inference charge against the defendant. (People v Paylor, 70 NY2d 146 [1987]; People v Rodriguez, 38 NY2d 95, CJI2d[NY], A Party's Failure to Call a Witness).

Despite this, in People v Holloway (2010 NY Slip Op 02302 [4th Dept 3/19/10]) the Court again held that a trial court properly denied defendant's request for an adverse inference charge because "[T]his Court has repeatedly determined[, however,] that the failure to record a defendant's interrogation electronically does not constitute a denial of due process" (citations omitted), and thus an adverse inference charge was not warranted (see People v Hammons, 68 AD3d 1800; People v Mastin, 261 AD2d 892, 894-895, lv denied 93 NY2d 1022)."

This decision was rendered six weeks after Freddie Peacock became the 250th person exonerated by DNA evidence after conviction, when his 1976 rape conviction was vacated in Monroe County. On his appeal the Appellate Division had agreed with Mr. Peacock's contention that the trial court erroneously permitted two witnesses to bolster the identification testimony of the complainant (People v Peacock,70 AD2d 781 [4th Dept 1979]), but held that "in light of the strong evidence of guilt, including defendant's confession, we find the error to be harmless." Twenty one years later it was finally proved that this confession was false. Thus, reliance on an unrecorded false confession led to the affirmance of a wrongful conviction. Yet the court refuses to even require judges, upon request to instruct jurors that in deciding whether the People have proved voluntariness of a confession beyond a reasonable doubt they can draw an adverse inference from the failure to record.

A Judge Who Doesn't Know The Law Can't Exercise Discretion

In People v Bernell (2010 NY Slip Op 02346 [4th Dept 3/23/10]) the Fourth Department vacated a consecutive sentences when the sentencing court mistakenly believed that it could not impose concurrent sentences:

At sentencing, defendant requested that the sentence run concurrently with the indeterminate sentence he was serving at that time. In denying the request, County Court stated that it was "not authorized by law to make that concurrent. It must be consecutive . . . ." In fact, however, the court had the discretion to impose concurrent sentences... " The failure of the court to apprehend the extent of its discretion deprived defendant of the right to be sentenced as provided by law' " (People v Schafer, 19 AD3d 1133). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing.

Police Without Warrant Can't Just Enter House And Arrest Occupant

In People v Forbes (2010 NY Slip Op 02349 [4th Dept 3/19/10] the Appellate Division, Fourth Department found that there was a violation of the well settled requirement that "police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home" (Kirk v Louisiana, 536 US 635, 638; see Payton v New York, 445 US 573, 589-590):
Where, as here, the People contend that a suspect gave his or her consent to the police to enter the suspect's home, "the burden of proof rests heavily upon the People to establish the voluntariness of that waiver of a constitutional right" (People v Whitehurst, 25 NY2d 389, 391). We agree with defendant that the People failed to meet that burden in this case. The record of the suppression hearing establishes that two Rochester police officers went to defendant's last known address for the purpose of taking defendant into custody for questioning. Upon arriving there, the officers asked defendant for identification and then immediately entered his home when he turned to procure his identification papers. Consequently, we conclude that defendant did not voluntarily consent to the officers' entry into his home (see People v Richardson, 229 AD2d 316, appeal dismissed 89 NY2d 933; see generally People v Gonzalez, 39 NY2d 122, 128). We note in addition that the People did not contend at the suppression hearing that exigent circumstances existed to justify the entry or that the tangible property was not the fruit of the unlawful entry, nor indeed do they raise those contentions on appeal. We thus agree with defendant that the court erred in denying that part of his omnibus motion seeking to suppress tangible property.

Saturday, March 20, 2010

SORA and out-of-state convictions

Some times a state just wants to put up a giant "Keep Out" sign for sex offenders from other parts of the country. Anyone who has seen quotes from the debates knows that this was a clearly expressed desire of some supporters of the statute.

Other times they are more sophisticated. Correction Law 168-g (1) made the Sex Offender Registration Act applicable to anyone in prison, on probation or on parole as of January 21, 1996. Correction Law 168-k(1) requires registration for sex offenders who move to New York State and whose prior convictions require registration under 168-a(2)(d) (elements test or requiring registration in the other jurisdiction or listed Federal crimes) or 168-A(3)(b) (essential elements of sexually violent offenses). CL 168-k(1) is not limited as to date, so that two people who commit the same crimes, one in NY one in another state, are treated differently.

This, to my mind, violates equal protection, and amounts to a barrier against sex offenders moving to this state. Granted, it's a limited, and perhaps unintended barrier, but it is one nonetheless. A New Yorker whose rape sentence expired January 20, 1996 is not required to register. A Californian whose rape sentence expired January 20, 1976 does have to register ("Keep Out!"). If you are assigned to an out-of-state sex offender case, I recommend challenging the proof that the defendant actually is required to register if the offense is pre-1/21/96 and the proof does not show that the sentence continued past the effective date of the statute.

This argument was rejected in People v McGarghan, 13 Misc3d 811 (NY SCt 2007), on the grounds that the provision did not violate equal protection. That court held that a Vermonter who committed a crime in Vermont before the effective date of the statute is treated the same as a New Yorker who committed the same crime in Vermont before the effective date of the statute. Umm, yeah, that's the test, if we're playing that than which none more Jesuitical can be conceived. By the way, a New Yorker who committed the crime in Alaska while underwater and humming the theme from The Last Remake of Beau Geste is treated the same as a Vermonter who committed the crime while skydiving and humming the theme from Sherlock Holmes Smarter Brother, that's not the issue.

This decision, which also holds (as several Departments have, but the Court of Appeals has not) that the determination by the Board that someone is a sex offender cannot be challenged at SORA, but must be challenged via Article 78. This theory holds that - while the question of what level someone should be classified as cannot be decided administratively because that would violate due process - whether a person is a sex offender at all can be. Got it. The Court of Appeals has addressed whether someone is registerable both via Article 78 and direct appeal (North v Board, 8 NY3d 735 [2007]; People v Kennedy, 7 NY3d 87 [2006]). Thus my belief that such a proceeding is permitted, but not required. I am confident that treating identical crimes, one committed by someone who is already here, one by someone who proposes to move to New York, are treated differently is the basis of my claim that equal protection, and a citizen's right to move about the country, are violated by New York's SORA statute.

Thursday, March 11, 2010

Ten Simple Rules

The below are general rules, often subject to obscure exceptions, and if unusual factors warrant, even very good general advice is best ignored (hence the name). Still, there are things which are not news, but worth a reminder.

1 - In your opening statement don't take on a burden, don't offer or promise to prove things.

2 - You are entitled to know the precise contents of jury notes, so long as they bear on substantive matters about evidence, law and the like, rather than scheduling or purely personal matters.

3 - The word "objection" doesn't preserve anything, you must specify your basis for the objection. There is an important exception: the word "objection", when spoken by a prosecutor, preserves every argument if the judge sustains.

4 - In a joint trial, if the codefendant's attorney objects, the issue is not preserved unless you formally join in the objection. And no, you can't announce at the start of trial that you each join in the other's objections. You have to repeat your agreement, even if that means doing so dozens of times. It's stupid, but it's the law. The Court of Appeals says so.

5 - [wherein I offered to to review any Public Defender SORA Risk Assessment]

6 - I think the best way to evaluate whether hearsay is offered for the truth of the matter asserted is to assume it's a lie, and ask whether we want to hear it anyway. If someone told the defendant "Joe just stabbed your spouse/pet/favorite curling player" and the defendant is accused of then attacking Joe, we want to know because the statement is potentially motive, even if it's a lie. If Joe were the accused, how would a similar statement be relevant at trial unless it were true?

7 - The pattern Question - "Officer, did you talk to the complainant?" Answer - "yes." Question - "and then what did you do?" Answer - "I arrested the defendant" is called inferential bolstering. It informs the jury indirectly that the complainant made the same statements as those made at trial, and thereby improperly bolsters their credibility. People v. Trowbridge says so.

8 - The identification of the defendant from a photo array does not come in at trial (CPL 60.25 & 60.30).

9 - Bigamy is not a continuing offense, and the statute of limitations runs from the invalid marriage. Yes, I've had this come up.

10 - When you are done arguing points in SORA, ask for a downward departure. It doesn't cost anything, and unlike the DA, you don't have to serve advance notice of your intent to request a departure from the point score. It lets you get in whatever beneficial things there are to say about your client, and if your client appeals it helps me a great deal if it turns out that your arguments on the points were, um, not so thoroughly compelling as to command assent.

Sunday, March 7, 2010

710.30 Un-noticed statements and voluntariness

Please join me as we take a trip deep into the weeds.

Fact - the People are required to serve a 710.30 notice when they intend to use statements of the defendant, which meet other criteria which will not be enumerated here.

Fact - Sometimes the People do not serve a 710.30 notice as to some or all statements meeting those criteria.

Fact - The Appellate Division, Fourth Department, has ruled that using such statements for the purpose of impeachment is perfectly okay even so (People v Pruitt, 6 AD3d 1233 [4th Dept, 2004] ["Contrary to defendant's further contention, a CPL 710.30 notice was not required because the challenged statement was elicited during rebuttal and was 'offered solely for the purpose of impeachment' (People v Hill, 281 AD2d 917...)"]). Note that this wasn't simply impeachment of a defendant during his testimony, but elicited during rebuttal, conceivably to impeach someone other than the defendant, though probably to impeach the defendant. A fortiori, if there is an un-noticed statement it can be used in direct impeachment of the defendant who testifies on his own behalf.

Where the People serve no 710.30 notice, the defendant cannot move to suppress, or else he forfeits his right to preclusion under 710.30. Therefore, if the only issue were notice, every un-noticed statement would be uniformly admissible regardless of the circumstances under which it was obtained. Police could literally beat a statement out of the defendant and, on this analysis, use it to impeach. This can't be the law.

What the prosecution would no doubt like is this: where there are issues of true voluntariness, such that a statement would not be usable even to impeach, the defendant must allege such when the statements are offered. This, however, represents a motion to suppress, which immediately forfeits the defendant's right to preclusion. Therefore, in my view, this would unduly burden the defendant's federal and state constitutional rights, which prohibit the use of truly involuntarily obtained statements, by requiring the defendant to forfeit state statutory rights in order to protect constitutional ones.

In my opinion, and here's the shiny object in the weeds that I wanted to get to, the People have a burden under People v Huntley (15 NY2d 72 [1965]) to establish that the statement is voluntary before it can be admitted:"the jury passes on voluntariness only after the judge has fully and independently resolved the issue against the accused’ and has made express findings upon the disputed fact question of voluntariness." 710.30 doesn't reduce the People's burden on voluntariness from beyond a reasonable doubt to nothing whatever. The defendant should not be deprived of this constitutional right by requiring him to forfeit his state statutory right in order to exercise his federal right. Using an un-noticed statement, it seems to me, represents a due process violation not because the statement should be suppressed, but because it should not be admitted without proof that it was not involuntarily obtained, which the defendant need not even allege because to do so would improperly require him to forfeit other rights.

It might still be worth making a suppression motion mid-trial, certainly if there is potential proof on your side that the statement was truly involuntarily made, and potentially if the normal Huntley motion can be made (I am somewhat uncertain about this - it's a esoteric part of an obscure topic), i.e. move to suppress without specificity. The People's inconvenience at this point is due to their failure to serve notice.