Thursday, June 23, 2011

Testimonial Forensic Reports Admissible Only If The Scientist Who Did The Testing Testifies

In Melendez-Diaz v Massachusetts (129 S.Ct. 2527 [June 25, 2009]), the United States Supreme Court held that the Confrontation Clause requires that in order for the prosecution to be able to introduce a forensic laboratory report at trial, the prosecutor must present a live witness to testify to the truth of the statements made in the report subject to cross-examination.

Today, in Bullcoming v New Mexico (see _US_ [6/23/11]), the Court decided the related issue of whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification— made for the purpose of proving a particular fact—through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. By a 5-4 vote, the Court held that "surrogate testimony of that order does not meet the constitutional requirement. The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist."

Last year I noted concern that Melendez-Diaz, itself a 5-4 decision, may not survive the replacement of Justice Souter, who was part of the majority in Melendez-Diaz, by Justice Sotomayor (see). In Bullcoming, Justice Sotomayor provide the key fifth vote, but but did not join the main opinion and, instead, wrote a concurring opinion emphasizing the limits of the Court's holding, and suggesting that that perhaps a supervisor who had some connection to the test might be an acceptable witness and that many tests would not be testimonial.

So one can expect further testing of the contours and limits of Crawford v Washington (541 U.S. 36 [2004]), particularity by prosecutors who can be expected to use Justice Sotomayor's opinion as a road map as to how to win her vote, and thus, a majority.

It is not coincidental that this difficult 5-4 win was achieved by Jeffrey Fisher, who was the successful advocate in Crawford, and seven other criminal cases at the Supreme Court prior to winning Bullcoming. That would be incredible even if Fisher was not born in 1970. Those of us a bit older who attempt to make careers as appellate counsel are in awe.

Monday, June 20, 2011

Conviction After Trial Does Not Cure Defective Grand Jury Instructions

The provision in CPL § 210.30(6) authorizing denial of appellate review of a motion to dismiss an indictment for insufficiency of grand jury minutes “from an ensuing judgment of conviction based upon legally sufficient trial evidence” does not preclude appellate review of defective grand jury procedures. Thus, in People v Calkins (2011 NY Slip Op 05314 [4th Dept 6/17/11]) the Appellate Division Fourth Department held that deficient instructions to the grand jury required reversal despite a finding that the defendant had been convicted on legally sufficient proof.

In Calkins the prosecutor properly charged the grand jury regarding justification based on the use of physical force in defense of a person with respect to the charge of assault in the second degree, the prosecutor failed to instruct the jury that such defense was also applicable to the charge of criminal mischief in the third degree. The grand jury voted not to indict defendant for assault but did indict him for criminal mischief.

The Court concluded that the
defendant was exposed to the possibility of prejudice by the deficiencies in the prosecutor's charge regarding justification based on the use of physical force in defense of a person (see People v Huston, 88 NY2d 400, 409). That error was compounded by the fact that the prosecutor also failed to charge the grand jury regarding justification based on the use of physical force in defense of premises (see § 35.20 [3]). In addition, the possibility of prejudice was increased by the failure of the prosecutor to inform the grand jury of defendant's request to call a witness to the incident giving rise to the charges...

Tuesday, June 14, 2011

Another Reason To Not Smoke

In People v Lopez (16 NY3d 375 [2/22/11]) the Court of Appeals held 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.

But there is a limit to that holding- a custodial conversation with a suspect brought from his jail cell who was actually known to be represented by counsel did not violate the right to counsel where the officer

did not ask defendant about a criminal case, and his actions — displaying a pack of cigarettes and providing one to defendant at his request — were not reasonably likely to elicit an incriminating response (see e.g. People v Ferro, 63 NY2d 316, 321 [1984], cert denied 472 US 1007 [1985]). The DNA that defendant voluntarily deposited on the cigarette butt was not a "response" or "statement" subject to exclusion under New York's right to counsel rules because the transfer of bodily fluids was not a communicative act that disclosed "the contents of defendant's mind" (People v Havrish, 8 NY3d 389, 395 [2007], cert denied 552 US 886 [2007]).

Smoking is bad for your health and your freedom. If one needs further convincing about the relationship between smoking and freedom , consider the case of Lerio Guerrero, who also was arrested based his DNA on the butt of a cigarette he had been smoking. As described in the New York Times (see), this demonstrates "a heretofore unspoken peril of smoking."

Appellate Courts Might Not Be Able to Affirm Decisions With Right Result But For Wrong Reason

In People v LaFontaine (92 NY2d 470 [1998]) the Court of Appeals held that the Appellate Divisions cannot affirm a lower court's decision for reasons which were rejected by that lower court. The lower court in LaFontaine had refused to suppress the drugs in question, but for the wrong reason, rejecting the correct reason. The Appellate Division affirmed, basing its holding on the correct rationale, which the lower court had rejected. The Court of Appeals held that this was improper, explaining that CPL 470.15 (1) bars the Appellate Divisions from affirming a judgment, sentence or order on a ground not decided adversely to the appellant by the trial court. The Court noted
that it had previously "construed CPL 470.15 (1) as a legislative restriction on the Appellate Division's power to review issues either decid in an appellant's favor, or not ruled upon, by the trial court," citing People v Romero (91 NY2d 750, 753-753 [1998]) and People v Goodfriend (64 NY2d 695, 697-698 [1984]) (92 NY2d at 474). Because [the Court] agreed with the Appellate Division's unanimous rejection of Supreme Court's reason for denying suppression — the "only reviewable predicate for a lawful arrest" — we reversed the Appellate Division's order affirming the judgment of conviction and sentence.

In the years since LaFontaine was decided it has been largely ignored or forgotten by both attorneys and appellate courts. But the Court of Appeals in People v Concepcion (2011 NY Slip Op 05110 [6/14/11]) reminded us that LaFontaine remains good law, and the Legislature had not amended CPL 470.15 (1) in the years since LaFontaine was decided, despite an explicit invitation by the Court to do so. Judges Smith and Pigott dissented urging that LaFontaine be overruled.

Sunday, June 12, 2011

Another Reversal Where More Offenses Proved Than Charged

Once again an appellate court has reversed a conviction pursuant to People v McNab (167 AD2d 858 [4th Dept 1990]) where there were more offenses proved than charged.

In People v Boykins (2011 NY Slip Op 04838 [6/10/11) the Appellate Division, Fourth Department reversed a conviction for attempted murder in the second degree and dismissed the count in the indictment charging defendant with that crime, where that count referred to a single attempt to cause the death of the intended victim by shooting him, but the People presented evidence at trial establishing that there were two distinct shooting incidents that may constitute the crime of attempted murder in the second degree. As the Court explained

"Reversal [of that conviction and dismissal of the ninth count] is required because the jury may have convicted defendant of an unindicted [attempted murder], resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges" (People v McNab, 167 AD2d 858, 858; see People v Comfort, 31 AD3d 1110, 1111, lv denied 7 NY3d 847). In addition, because the trial evidence establishes two distinct acts that may constitute attempted murder, "[i]t is impossible to ascertain . . . whether different jurors convicted defendant based on different acts" (McNab, 167 AD2d at 858; see People v Jacobs, 52 AD3d 1182, 1183, lv denied 11 NY3d 926). Although defendant failed to preserve his contention for our review, "[p]reservation is not required inasmuch as [t]he right of an accused to be tried and convicted of only those crimes and upon only those theories charged in the indictment is fundamental and nonwaivable' " (People v Bradford, 61 AD3d 1419, 1420-1421, affd 15 NY3d 329), as is the right to a unanimous verdict (see CPL 310.80).

As quoted above McNab violations are one of the few that are reviewable as a meeter of law absent objection and preservation.

Howard Broder, the excellent appellate attorney who successfully represented Mr. McNab and first raised this issue (and many other), has retired and is moving to Philadelphia. But Howard's legal legacy still grows.

In Deciding For Cause Challenges Courts Must Consider Prospective Juror's Last Statement

James Eckert

In People v Johnson (2011 NY Slip Op 04764 [6/9/11])the Court of Appeals ruled that a juror who said she could set aside her personal views on the insanity defense and could apply the law as set forth by the court should have been removed for cause based on subsequent statements by the juror on the same subject matter. Specifically, in Johnson the Court held that a juror who had written a college research paper on insanity defenses (the only defense at trial), and who initially said she would set aside her personal views and apply the law as instructed, should have been excused for cause when she later said she had a "strong bias" and that she might be biased in how she interpreted the evidence and was not certain she could be fair. Significantly, no further inquiry was made after these later comments, and the for cause challenge was denied. Defendant bumped the potential juror, and, as required to raise this issue on appeal, exhausted his peremptories.

This case is important both because it establishes that a statement of an ability to set aside one's opinions does not protect a juror from subsequent statements to the contrary. It is also important because it establishes the legitimacy of revisiting a topic which the court and prosecutor might feel that they have successfully covered already. This case implies that it is not only potentially fruitful to elicit similar statements from a juror, but also that it is improper to foreclose questioning even where a juror already said she could be fair and/or follow the law. This is especially true where there is a strong indication of bias and a weak or pro forma recitation of an ability to set it aside.

Tuesday, June 7, 2011

Five Minutes Might Not Be Enough

Over the years many trial judges in New York have been imposed increasingly restrictive time limits on the questioning prospective jurors. And appellate courts have repeatedly rejected challenges to these arbitrarily time limits (see People v Jean, 75 NY2d 744 [trial court did not abuse its discretion in limiting counsel questioning to 15 minutes in first two rounds and 10 minutes in third round of voir dire]; People v Davis, 166 AD2d 453 [2d Dept], lv denied 76 NY2d 985 [1990] [15 minute restriction in first round followed by 10 minutes in second and third rounds not an abuse of discretion]; People v Erickson, 156 AD2d 760 [3d Dept 1989], lv denied 75 NY2d 966 [1990] [10 minute restriction in each round was not an abuse of discretion]).

So it was not surprising that a judge presiding over a high profile robbery and weapons trial instructed the attorneys that they would be given only five minutes to question each panel of prospective jurors. Nor is it shocking that even when numerous venireman gave answers raising concerns as to their ability to be fair and impartial and counsel was questioning one of these prospective jurors, the court interrupted counsel to warn him that only one minute remained for questioning. Thus no questioning of the others was possible.

Perhaps what is surprising is that on appeal the Court of Appeals (People v Steward, 2011 NY Slip Op 04716 [6/7/11]) held that on these facts the trial court abused its discretion in continuing to enforce the five-minute limitation on counsel questioning after counsel's timely objection explaining why the time period was insufficient.

The Court explained, however, that not only is a five minute per pass rule not automatically invalid (how about two minutes per pass?) but even the error in this case
"standing alone, does not warrant reversal. A trial court's abuse of discretion in limiting the scope of counsel questioning will not warrant reversal unless defendant establishes that he suffered prejudice (see Jean, 75 NY2d at 745)."

In deciding that the requisite prejudice was established the Court wrote

Defendant contends that he suffered prejudice because critical issues were revealed during jury selection involving a large number of prospective jurors and, as a result of the five-minute time restriction, his attorney was unable to query the various venire members that had responded to the court's inquiries in a problematic or provocative manner. And he suggests that some of these individuals did, in fact, serve on the jury that convicted him.

Given the lack of clarity in the record concerning whether certain prospective jurors were discharged or retained, we cannot say that defendant's claim of prejudice is refuted by the record. This is not a case where defendant has done nothing other than identify one or two venire persons who made questionable remarks but were not examined by counsel due to a time constraint. In the third round of voir dire alone, more than a dozen prospective jurors seem to have said something that invited additional inquiry in connection with their knowledge of the victim or status as a crime victim or witness — topics especially pertinent to this case. While none of these jurors made statements that, without further elaboration, would have justified their dismissal for cause, the purpose of follow-up questioning by the court or counsel is to explore hidden biases. During jury selection, attorneys pay close attention to juror responses in order to identify who should be challenged "for cause" and decide whether to exercise peremptory challenges. This process may be thwarted if an insufficient amount of time is permitted for questioning. And, here, due to peculiarities in the record, it is impossible to contradict the contention that the problematic prospective jurors that counsel was unable to examine ultimately sat on the jury that convicted him of multiple class B violent felonies.

Saturday, June 4, 2011

Broad Ruling on Right to Present Evidence of Bad Reputation in Community for Truth and Veracity

Jill Paperno
Second Assistant Monroe County Public Defender

In People v Fernandez (2011 NY Slip Op 04540 [6/2/11]) the Court of Appeals ruled that the trial court improperly deprived the defendant of his right to present testimony that the complainant had a bad reputation in the community for truth and veracity. Defendant was charged with courts of sexual conduct against a child, rape first and other charges. Defendant was charged in a 2008 indictment with engaging in these acts with the complainant in 2005. The complainant, defendant's niece, was 8 at the time; the defendant was 17. At trial she was 11. She did not report any complaint until 2007. Defense counsel sought to introduce testimony from his parents that at family get-togethers the complainant was discussed, and that she had a bad reputation for truth and veracity among family members and friends. The Court of Appeals reaffirmed that one's community can include a place of employment, and that family and friends can constitute a relevant community.

As for the fact that the witnesses were the defendant's parents, the Court stated, "(U)nder our precedents, the presentation of reputation evidence by a criminal defendant is a matter of right, not discretion, once a proper foundation has been laid."


"Since complainant's credibility was the central issue for the jury to resolve, County Court's failure to admit evidence related to complainant's bad reputation for truth and veracity cannot be considered harmless."

This looks like a great case to support introduction of testimony in the sex offense cases we have when clients' family members are often twlling defense counsel that the complainant is know to be a liar.

Standing, Precedent, and Preservation

In People v Stith (69 NY2d 313 [1987]) the Court of Appeals held that the People must timely object to a defendant's failure to prove standing in order to preserve that issue for appellate review. Since the Court of Appeals is the highest court in the state and its holdings as to state law are binding on lower courts, one would have thought that the Appellate Divisions would refrain from upholding the denial of suppression motions on the ground that standing had not been established when no such claim had been raised by the People in response to the motion. One would be wrong.

In the years after the Court of Appeals decision in Stith three of the four Appellate Departments have issued rulings counter to the Stith holding, concluding that because it is the defendant's initial burden to establish standing, the People may raise defendant's lack of standing for the first time on appeal (see People v McCall, 51 AD3d 822, 822 [2d Dept 2008] lv denied 11 NY3d 856 [2008]; People v Hooper, 245 AD2d 1020, 1021 [4th Dept 1997]; People v Banks, 202 AD2d 902, 904 [3d Dept 1994] revd on other grounds 85 NY2d 558 [1995]. Only the Appellate Division, First Department (People v Graham, 211 AD2d 55, 57-58 [1st Dept 1995] lv denied 86 NY2d 795 [1995]) correctly applied the Court's holding that was adverse to the prosecution.

After years of its decision in Stith being ignored, the Court in People v Hunter (2011 NY Slip Op 04542 [6/2/11]) finally reminded courts that they are bound to follow its decision in Stith. And the Court explained why preservation requirements apply to the prosecutor:

Given that the primary reason for "demanding notice through objection or motion in a trial court, as with any specific objection, is to bring the claim to the trial court's attention" (People v Gray, 86 NY2d 10, 20-21 [1995]), the People are required to alert the suppression court if they believe that the defendant has failed to meet his burden to establish standing (see People v Carter, 86 NY2d 721, 722-723 [1995] [setting forth the premise that a defendant "must allege standing to challenge the search and, if the allegation is disputed, must establish standing" (emphasis supplied)]). The preservation requirement serves the added purpose of alerting the adverse party of the need to develop a record for appeal. Here, because the People failed to preserve the issue, the Appellate Division erred in entertaining it.