Thursday, February 24, 2011

Reckless Driving Causing Death Held Not To Be Depraved Indifference Murder

Drew R. DuBrin,
Special Assistant Monroe County Public Defender

In People v Prindle (_NY3d_, 2011 NY Slip Op 01320 [2/22/11]) Mr. Prindle urged that the evidence of depraved indifference was insufficient to support his murder conviction, where a passenger of another car was killed when Prindle collided his van into the other car during a police chase.

Mr. Prindle, who was caught stealing snow plow blades in Brighton, a Rochester suburb, sped onto Monroe Avenue and headed toward Rochester, reaching a speed of 65 miles an hour, running a number of red lights, driving into the oncoming lane of traffic to pass slower vehicles, and weaving in and out of traffic. The fatal crash occurred at the I 490 overpass on South Goodman, where the defendant ran the two red lights and crashed into the other vehicle at the south end of the overpass. Importantly, Mr. Prindle never strayed from the road and did not come close to striking a pedestrian.

Because trial counsel did not object to the jury charge, which correctly instructed jury under the law as it existed at the time -- that depraved indifference is an objective set of circumstances not a culpable mental state (which is now the law), the Court assessed the sufficiency of the evidence under the old standard. Without much explanation, the Court held that viewing depraved indifference, under the previous Register standard, the evidence of depraved indifference is legally insufficient. The Court ruled that the defendant's conduct did not evince the rare evil that is now understood to be depraved indifference. The Court contrasted the defendant's conduct to that of the defendant's conduct in People v Gomez, in which depraved indifference was found where the defendant mowed down two children while driving at high speed on a side walk.

Thus, the Court of Appeals has now appeared to take the position that death caused by highly reckless driving on a the road is not, by itself, evil enough to reflect a depraved indifference to human life.

Given that depraved indifference is now considered a culpable mental state, it is questionable whether highly reckless driving on a roadway (not in a parking lot or sidewalk) by a drunk driver could be said to be depraved indifference either, under the notion that an intoxicated driver does not fully comprehend the consequences of his actions. See People v Vallencia.

30.30 and Superceding Accusatory Instruments


Dre R. DuBrin, Special Assistant Monroe County Public Defender

In People v Farkas (_NY_, 2011 NY Slip Op 01318 [2/22/11]), the Court of Appeals decided a very important 30.30 case - against the defendant- but in so ruling confirmed principles that will often help defendants seeking to move to dismiss a superseding accusatory on 30.30 grounds.

In Farkas, the defendant was issued an appearance ticket for assault in the third degree. He was later arraigned on an assault third complaint and harassment second misdemeanor complaint (which commenced the criminal action). He was later indicted, charged with not only the misdemeanors but also a felony larceny. All the charges arose from the same incident. The defendant moved to dismiss the indictment, arguing that the People were entitled to exclude periods of pre-indictment delay only with respect to the misdemeanor charges, the argument being that the there had been no prior accusatory charging the felony larceny count.

The Court rejected that contention, finding that for 30.30 purposes, there is but one criminal action involving multiple accusatory instruments when the subsequent accusatory directly derives from a previous accusatory, regardless of whether charges of a different nature are alleged in the subsequent accusatory. The Court therefore concluded that the criminal action with respect to the felony commenced with the defendant's arraignment on the appearance ticket - even though the defendant was not issued an appearance ticket for that charge and the initial complaint failed to charge the defendant with that offense. The Court also concluded, logically (and unfortunately for the defendant) that the People were entitled to invoke the excludable time provisions with respect to all the excudable delay occurring between arraignment on the misdemeanor and the indictment charging the additional felony offense.

Wednesday, February 23, 2011

Eavesdropping Warrant Requirement

On February 15th, the Court of Appeals decided People v Rabb and People v Mason (_NY3d_, 2011 NY Slip Op 01050 [2/15/11]). It reviewed a determination of the Appellate Division that requirements for an eavesdropping warrant had been met in a racketeering investigation into a labor coalition which had been alleged to engage various coercive tactics. The requirements, set forth in CPL 700.15 (4), are that an eavesdropping warrant application must demonstrate that normal investigation procedures had been tried and proven to be unsuccessful, were reasonably unlikely to succeed if tried, or were too dangerous to employ.

Keep in mind that the decision has somewhat limited value as precedent, given that the Court of Appeals' authority to review Appellate Division's factual determinations is limited to whether there is "some" support in the record for the determinations. The Court concluded that there was support for the determination that eavesdropping was not being used as an initial investigative step, noting that it had been alleged in the application that phone records, linking the defendants to the conspiracy, had been examined.

The Court also concluded that the People had adequately demonstrated in their papers that normal investigative procedures would not likely to be fruitful, finding that the People had adequately alleged that the use of a grand jury would not work, as the many of the witnesses themselves were targets of the investigation and the execution of search warrant would tip off the targets.

Judge Lippman dissented, concluding that the majority was improperly relying upon efforts tried and exhausted in separate investigations, efforts both unalleged in the defendants' applications and irrelevant to the analysis. These important principles remain intact:

1) The People must allege in their eavesdropping warrant application in a non-conclusory manner that the requirements of CPL 700.15 (4) had been met.

2) The People must demonstrate in their papers, in a non-conclusory manner, that eavesdropping is not the initial step in the investigation. While bootstrapping is apparently permitted, keep in mind that in Rabb, the allegations against others subject to an earlier portion of the investigation were much more substantial.

3) The People cannot meet their burden of demonstrating that the normal investigative procedures are not likely to be successful by merely alleging that similar, unrelated investigations, conducted without eavesdropping, were unsuccessful. Allegations of investigative efforts must be case specific.

I was tempted to note that Shortstops and Second Basemen are nominally required to have a foot on second base while making the turn in a double play, but in practice the rule is that the infielder need only be "in the neighborhood". If we conclude from Rabb that a substantial showing with regard to one part of a conspiracy supports eavesdropping as to other alleged members of the same conspiracy based on showing a connection, without any further showing as to the new eavesdropping target, then perhaps I should have.

Attorneys Have Duty To Advise Client Whether To Accept Plea Offer

In Young v Zonn ( __ 2011WL 1:04-cv-00363 [WDNY 02/18/11]), a habeas petition was granted based on failure of defense counsel in an Erie County prosecution to give adequate advice to his client as to whether he recommended that the client accept the plea offer. The court explained that

Under the performance prong of the Strickland v. Washington,466 U.S. 668 (1984), standard, trial counsel “must give the client the benefit of counsel’s professional advice on [the] crucial decision of whether to plead guilty.” Purdy v. United States, 208 F.3d 41, 44 (2d Cir.2000) (internal quotation marks omitted) (quoting Boria v. Keane, 99 F.3d 492, 497 [2d Cir. 1996]). “Defense counsel have a constitutional duty to give their clients professional advice on the crucial decision of whether to accept a plea offer from the government.” Pham v. United States, 317 F.3d 178, 182 (2d Cir.2003).

The court held that to the extent that the defense attorney failed to offer any recommendation about the pros and cons of accepting the plea, he was ineffective. The court further held that given the sentencing disparity between what he faced at trial (25 years and the plea offer (7 or 10 years) and the strength of the evidence against him, the fact that the defendant maintained his innocence does not mean he was not prejudiced by this failure to give advise on the desirability of the plea.

The Court ordered specific performance of the rejected plea offer, and since Young had already served 11 years the court ordered that the sentence be reduced to time time served and that the defendant be discharged. This order was not stayed pending appeal and the defendant was released the following day.

Tuesday, February 22, 2011

Important Right To Counsel Holding

In People v Lopez (_NY3d_, 2011 NY Slip Op 01316 [2/22/11]) the Court of Appeal, considerered whether the right to counsel, as set forth in People v Rogers (48 NY2d 167 [1979]), was violated by police interrogation of a defendant in custody in Pennsylvania pending prosecution on Pennsylvania charges, who wasrepresented by a Pennsylvania attorney who had entered that case was lawful where the police, where the police, having never asked, did not knwo that the defendant had counsel By a 4-3 vote the Court held the officer should have been deemed chargeable with knowledge of that representation and entry.

The majority explained that
Permitting a police officer to remain deliberately indifferent — avoiding any inquiry on the subject notwithstanding the nature of the custodial charges and the likelihood that a lawyer has entered the matter — in order to circumvent the protection afforded by Rogers is not only fundamentally unfair to the rights of the accused, it further undermines the preexisting attorney-client relationship that serves as the foundation of the Rogers rule. A contrary holding would allow a police officer who is fairly certain that an attorney is involved in the custodial matter to flout Rogers by claiming that he was not fully confident about a lawyer's involvement. For these reasons, we hold that an officer who wishes to question a person in police custody about an unrelated matter must make a reasonable inquiry concerning the defendant's representational status when the circumstances indicate that there is a probable likelihood that an attorney has entered the custodial matter, and the accused is actually represented on the custodial charge.

Thursday, February 10, 2011

Irony and the Sex Offender Management and Treatment Act (SOMTA)

There was widespread outrage at the conduct of Nushawn Williams, who was alleged to have had unprotected sex with numerous girls and women despite being told he was HIV positive (see). This failure to inform the women that they risked not merely pregnancy or an STD, but rather a potentially fatal infection, without cure, meant that the sexual encounters were not truly consensual. Indeed, now that Mr. Williams is completing his sentence for a conviction by guilty plea for the statutory rape of two of these women, New York is attempting to have Mr. Williams civil committed as a detained sex offender requiring confinement pursuant to the Sex Offender Management and Treatment Act (SOMTA)(see).

Today, the Court of Appeals, in People v Harnett (2011 NY Slip Op 00744 [2/11/11/]) rejected the argument that since a possible consequence of a plea to a sex conviction is a lifetime civil commitment, fundamental fairness requires that the failure to warn a defendant who pleads guilty to a sex offense that he may be subject to the Sex Offender Management and Treatment Act (SOMTA) automatically invalidate the guilty plea.

The Court did "recommend to trial courts that the possible effects of SOMTA be explained to anyone pleading guilty to an offense that may result in SOMTA proceedings."

In so holding, the Court ruled that the undisclosed possibility that a plea might result in a lifetime commitment does not automatically render the plea unintelligent or involuntary.

Allegations in Support of 440 Motion May Require Holding Hearing to Promote Justice

In People v Campbell (2011 NY Slip Op 00813 [4th Dept 2/11/11]) the Court held that it was error to summarily deny a motion pursuant to CPL 440.10, based on the contention that the defendant was denied effective assistance of counsel because his trial attorney had failed to inform him of potentially exculpatory evidence, i.e., that before the murder an inmate at a state prison had advised the District Attorney that he had information concerning a plot to murder the victim that implicated persons other than defendant.

The Court explained that a hearing on this motion was required where

It is undisputed that defendant's trial counsel had obtained an "open file" discovery arrangement with the District Attorney and that the correspondence was included in the file. Despite the fact that counsel representing defendant on the CPL 440.10 motion asked defendant's trial counsel to provide an affidavit setting forth what he knew and what he had advised defendant about the information in that correspondence, trial counsel failed to provide the affidavit..... We therefore conclude, based upon the record before us, that " a hearing should be held to promote justice [because] the issues raised by the motion are sufficiently unusual and suggest searching investigation' " (People v Ausserau, 77 AD2d 152, 155, quoting People v Crimmins, 38 NY2d 407, 416; see People v Kearney, 78 AD3d 1329; People v Nicholson, 222 AD2d 1055, 1057).

Escape From an Unauthorized Arrest is Not An Escape

Pursuant to Executive Law § 259-i(3)(a)(i)and 9 NYCRR 8004.2, a parole officer is required to obtain a warrant before arresting a parolee for an alleged parole violation. There is currently no statutory exception to that warrant requirement
So what if pursuant to a verbal order from a Senior Parole Officer, a parole Officer, without a warrant, arrests and and shackles a reporting parolee when he arrived at the parole office. and them after the senior parole officer finished processing the necessary forms to obtain a warrant after defendant was taken into custody, the shackled parolee escaped. Is that Escape in the First Degree?

In People v Colon (2011 NY Slip Op 00831 [4th Dept 2/11/11])the Appellate Division, Fourth Department held that it is not an escape in violation of the penal law because there had not been an authorized arrest. The Court explained

Pursuant to Penal Law § 205.15 (2), “[a] person is guilty of escape in the first degree when . . . [h]aving been arrested for, charged with or convicted of a class A or class B felony, he [or she] escapes from custody . . . .” A person is in “[c]ustody” when he or she is restrained “by a public servant pursuant to an authorized arrest” (§ 205.00 [2] [emphasis added]). Inasmuch as defendant’s arrest for a parole violation was not made pursuant to a warrant, it was not authorized (see Bratton, 8 NY3d at 642-643), and thus defendant was not in “[c]ustody” pursuant to Penal Law § 205.00 (2). Even assuming, arguendo, that the warrant was signed and issued after defendant’s arrest but before his escape, we conclude that such warrant did not render the arrest valid (see Bratton, 8 NY3d at 642-643).

Attorneys Have Duty to Inform Defendants that the Ultimate Decision Whether to Testify is the Defendants' Alone

Both the United States Supreme Court and the New York Court of Appeals have held that once a defendant chooses to be represented by counsel, counsel and not the defendant has control over most strategic decisions are made by the attorney and not the defendant (Jones v Barnes, 463 US 745, 751 [1983]; People v White, 73 NY2d 468, 478 [1989]). However, there are a few decisions that are so critical that they can be made only by the client. These decision that can only be made by the defendant, upon the advise of counsel, are whether to plead guilty, whether to waive a jury trial, whether to testify at trial and whether to appeal(Jones v Barnes, at 751; White, at 478)

In People v Cosby (2011 NY Slip Op 00925 [4th Dept 2/11/11) the Appellate Division, Fourth Department considered the question of who is responsible for insuring that the defendant is aware that he and the counsel get to decide whether the defendant should testify at trial. In the context of a record showing that neither the court nor the attorney ever informed the defendant who told his attorney that he wanted to testify that the decision to testify is reserved to the defendant, not defense counsel, the Appellate Division, Fourth Department held that

The trial court has no obligation to inform a defendant of his or her right to testify or to ascertain if the failure to testify was a voluntary and intelligent waiver of his or her right to do so (see People v Fratta, 83 NY2d 771, 772; People v Dolan, 2 AD3d 745, 746, lv denied 2 NY3d 798). The issue here, however, is whether a defendant's attorney has a duty to advise the defendant of his or her right to testify, even against the advice of the attorney. We conclude that the attorney does have that duty.

"[T]rial counsel's duty of effective assistance includes the responsibility to advise the defendant concerning the exercise of [the] constitutional right" to testify at trial (Brown v Artuz, 124 F3d 73, 74, cert denied 522 US 1128; see People v Carpenter, 52 AD3d 729, lv denied 11 NY3d 830; People v Perry, 266 AD2d 151, 152, lv denied 95 NY2d 856). In addition to informing the defendant that he or she has the right to testify at trial, in the event that the attorney advises the defendant not to testify, the attorney must also inform the defendant that the ultimate decision whether to testify is the defendant's alone (see Brown, 124 F3d at 79; Teague, 953 F2d at 1533). Without receiving such advice, a defendant may erroneously believe that the decision whether to testify is one of the many decisions over which the defendant's attorney has control (see generally Ferguson, 67 NY2d at 390).

The People contend that "the law should not, as a matter of sound public policy, place the burden of affirmatively telling a client that the client can ignore defense counsel's advice upon a defense attorney." We reject that contention. Rather, we conclude that it is indeed sound public policy for defense counsel to notify a defendant that he or she has a fundamental right to testify on his or her own behalf and that the decision whether to testify rests with defendant, not counsel. Of course, defense counsel should still render advice to defendant concerning whether a good trial strategy would warrant testifying on his or her own behalf. But we cannot stress enough that defense counsel should make it clear to the defendant that it is the defendant, not counsel, who has the final word on the matter. The imposition of such a duty on defense counsel is consistent with the Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.2 (a), which provides in relevant part that, "[i]n a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to . . . whether the client will testify." We thus agree with the court that defense counsel erred in this case by failing to advise defendant that the final decision whether to testify was defendant's to make.