Sunday, March 18, 2012

Some Errors In Content and Service Of a Notice Of Appeal May Be Waived Or Excused

CPL 60.10 (a) provides that A party seeking to appeal from a judgment or a sentence must
within thirty days after imposition of the sentence or, as the case may be, within thirty days after service upon such party of a copy of an order not included in a judgment, file with the clerk of the criminal court in which such sentence was imposed or in which such order was entered a written notice of appeal, in duplicate, stating that such party appeals therefrom to a designated appellate court.

Even when there has been a failure to comply with these requirements as to a notice of appeal, it is possible that the defendant can still appeal. Thus, for example, in People v Syville (15 NY3d 391 [2010])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.

Two recent decisions of the Appellate Division, Fourth Department, show other ways in which appeals may proceed despite errors with respect to the notice of appeal. In People v Dizak (2012 NY Slip Op 01907 [4th Department 3/16/12]), as in Syville, there was an apparent failure to timely serve the notice of appeal. Rather, than file a motion for a writ of error coram nobis, as suggested by the Court of Appeals in Syville, Mr. Dizak perfected his appeal. The Monroe County District Attorney, in its Respondent's brief contended that the appeal had to be dismissed because Dizak failed to serve his notice of appeal in a timely manner. The Appellate Division, refused to dismiss for two reason, holding that
"[T]he People waived any objection to defendant's failure to serve the notice of appeal by responding to his appeal on the merits rather than f a motion to dismiss the appeal at some earlier juncture . . . The People, moreover, have failed to demonstrate any prejudice as a result of defendant's alleged failure to comply with CPL 460.10 (1) (b)" (People v Sayles, 292 AD2d 641, 642 n, lv denied 98 NY2d 681).

Thus, the Court held both that a prosecutor waives the requirement of timely service of a notice of appeal by failing to move to dismiss on that ground and that prejudice must be demonstrated.

In People v Mitchell (2012 NY Slip Op 01897 [Fourth Department 3/16/12]) the notice of appeal recited an incorrect date on which judgment was rendered. The Fourth Department, excused this error holding that
Defendant's notice of appeal recites the correct indictment number, however, and thus we exercise our discretion, in the interest of justice, and treat the notice of appeal as valid (see CPL 460.10 [6]).

Although both Mr. Mitchell and Mr. Dizak were permitted to proceed with their appeals despite defects in the content or service of their notices of appeals, it is risky to count on either waiver by the prosecutor or the exercise of interest of justice jurisdiction by the appellate court. Thus, counsel should first check to insure the accuracy of the information in the notice of appeal and then timely serve the notice, with proof of such service.

If It Is Not In the Stipulated Record It Is Not Before The Appellate Court

In a reminder as to the importance of including key documents in the stipulated record on appeal, the Appellate Division, Fourth Department, in People v Scott (2012 NY Slip Op 01991 [4th Dept 3/16/12]), dismissed a People' appeal which sought to challenge the lower court's dismissal of an indictment pursuant to CPL 30.30, where the record included the lower court's decision, but failed to include the judgment or order dismissing the indictment. As the Court explained,

"[t]he appeal must be dismissed because no judgment or order is included in the record on appeal, and '[n]o appeal lies from a decision' (People v McCarter, 97 AD2d 852)."

Saturday, March 17, 2012

Order to Obtain DNA Doesn't Authorize Police To Use Taser to Acquire DNA

Confronted by the police who had an order to obtain his DNA, Ryan Smith reportedly told the police "You are gonna have to Taser me if you want my DNA." Ans so the police proceeded to use a taser to acquire Mr. Smith's DNA. On appeal Mr. Smith challenged both the legality of the order and the use of the taser. In a 4-1 decision (People v Smith,2012 NY Slip Op 01896 (3/16/2012) the Appellate Division, Fourth Department agreed with Mr. Smith both that there was insufficient notice of the motion to seek DNA testing and that the use of the taser was improper.

Normally, this is the part in which quote from and discuss the decision. But I am very happy to report that Scott Greenfield has returned to blogging at Simple Jusice and has already written this excellent post on the case.

So I will just quote this portion of the decision regarding the use of the taser:
It is undisputed that defendant did not threaten, fight with, or physically resist the officers at any time; rather, he simply refused to open his mouth to allow the officers to obtain a buccal swab. . . We cannot agree with the suppression court that, after 10 to 15 minutes of asking a suspect to comply with a court-ordered buccal swab of which the suspect had no prior knowledge, it is reasonable for the police to tase a nonviolent, handcuffed, and secured defendant in order to force the suspect into submission.

While the People seek to characterize the use of a taser as a "minimal" degree of force and emphasized at the suppression hearing that defendant did not lose consciousness and suffered no visible scarring or injuries, we note that "extreme pain can be inflicted with little or no injury" (Hickey, 12 F3d at 757). The officers who witnessed the tasing incident acknowledged that the use of a taser causes pain and that, upon application of the taser, defendant appeared to be in pain and shouted for the officers to stop using it. Our review of a videotape of the tasing incident supports the conclusion that defendant was in pain upon application of the taser to his bare skin.

Congratulations to Mr. Smith's attorney, Mark Funk, for obtaining this reversal.