Friday, December 20, 2013


Jill Paperno, Second Assistant Monroe County Public Defender 
and author of  Representing the Accused: A Practical Guide to Criminal Defense

As described in an earlier post, the law provides guidance as to which decisions are made by a client and which are made by the defense attorney.  Decisions that are considered fundamental - generally those that are granted to a defendant by the Constitution, or cases interpreting the Constitution - are to be made by the client.  Ideally (and we should be striving for the ideal) those decisions are made after thoughtful, informed and considered review with counsel.  Decisions that are strategic are to be made by the defense attorney.  Ideally (yes, striving again) those decisions are made after thoughtful, informed and considered review with the client.

So which type of decision is the right to testify before the grand jury?  If it is a fundamental right we have to discuss it with our clients and they have to waive the right.  But day after day I see defendants appearing in court whose attorneys have never discussed grand jury testimony with them.  How do I know?  In some cases they are meeting counsel for the first time on a preliminary hearing date even though counsel was assigned before the grand jury date.  In the holding area they ask me, a lawyer they don't know, who their lawyer is.  When their case is called the prosecutor presents a grand jury certification to the court, so we know the case went to the grand jury without the client having been advised of grand jury rights.

The right to be prosecuted on an indictment is contained in the state constitution.  (The U.S. Constitution has been interpreted as not requiring indictment for prosecution on all felonies, so different states handle this issue in various ways - see And the New York state Constitution does not include the right of a defendant to testify - that is contained in the Criminal Procedure Law, section 190.50.  So this right looks different than some of the other rights we know are fundamental and are protected by the Constitution, and which only a client can waive.  And grand jury decision-making happens behind the scenes.  There is no judge asking for the client's decision or whether the client is aware of the right.  (But remember - the decision of whether to appeal is not in the Constitution and happens behind the scenes, and it is fundamental.)

There is a split among the attorneys I know about whether the right to testify before the grand jury is a fundamental right.  I believe it is for the reasons that follow.

The Court of Appeals has stated that it is not per se ineffective assistance for defense counsel to fail to facilitate a client's appearance before the grand jury.

This case is indistinguishable from People v. Wiggins, 89 N.Y.2d 872, 873, 653 N.Y.S.2d 91, 675 N.E.2d 845 (1996), where defense counsel arrived at the grand jury after the indictment had been voted. Indeed, until the indictment was handed down there was no felony charged. Here, defense counsel also failed to secure defendant's appearance before the grand jury In Wiggins, we held that failure of defense counsel to facilitate defendant's testimony before the grand jury does not, per se, amount to the denial of effective assistance of counsel. In this case, defendant failed to establish that he was prejudiced by the failure of his attorney to effectuate his appearance before the grand jury. Significantly, there is no claim that had he testified in the grand jury, the outcome would have been different.

People v. Simmons, 10 NY3d 946.

But there are cases that reverse convictions when defense counsel has failed to effectuate a client's desire to testify before the grand jury.  In a Kings County Court 2002 decision Judge  Reichbach noted the lack of clarity and guidance from the courts on this issue:

The initial question presented is whether, as a matter of constitutional right, the decision to testify before the Grand Jury is one that can only be made or waived by the defendant. This requires a determination as to whether or not a defendant's right to testify in the Grand Jury is a fundamental or constitutional one. Both the United States Supreme Court and New York's Court of Appeals have enumerated these decisions that are so fundamental that they can only be made by the defendant, not his attorney. The United States Supreme Court in Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), noted that decisions such as whether to waive a jury, whether to testify at trial and whether to take an appeal are so fundamental that they can only be made by the defendant (citing ABA Standards on Criminal Justice, On Defense Functions, Standard 4–5.2 [Second Edition] ). In People v. White, 73 N.Y.2d 468, 541 N.Y.S.2d 749, 539 N.E.2d 577 (1989), New York's Court of Appeals likewise found that fundamental decisions include whether to plead guilty, whether to waive a jury trial, whether to testify on one's behalf and whether to take an appeal. The Court of Appeals in People v. Ferguson, 67 N.Y.2d 383, 502 N.Y.S.2d 972, 494 N.E.2d 77 (1986) indicated that this list was not exhaustive. The Court of Appeals has made it plain that the right to testify before a Grand Jury is not one of constitutional dimension, but rather a right provided by statute.   People v. Smith, 87 N.Y.2d 715, 642 N.Y.S.2d 568, 665 N.E.2d 138 (1996). While not of constitutional dimension, nevertheless the Court of Appeals has determined it to be a “valued” right, a “significant and substantial” right which must be “scrupulously protected”. People v. Evans, 79 N.Y.2d 407, 414, 583 N.Y.S.2d 358, 592 N.E.2d 1362 (1992); People v. Smith, 87 N.Y.2d 715, 720, 721, 642 N.Y.S.2d 568, 665 N.E.2d 138 (1996); People v. Corrigan, 80 N.Y.2d 326, 332, 590 N.Y.S.2d 174, 604 N.E.2d 723 (1992). While clearly, an attorney has the right to make day-to-day decisions governing a case, and those decisions will be binding on a client, People v. Jordan, 96 A.D.2d 1060, 466 N.Y.S.2d 486 (2nd Dept., 1983) there is apparently no New York authority indicating whether this significant statutory right to testify before the Grand Jury, once invoked, may be waived without the defendant's permission.

People v. Edwards, 192 Misc.2d 473, 475-76, 747 N.Y.S.2d 688, 690 (N.Y.Sup.,2002)

In a great summary of the law and conclusions to be drawn about whether a client gets to make his decision, Judge Reichbach, citing numerous cases, wrote:

Many cases hold that a failure by defense counsel to secure a client's right to  testify before the Grand Jury by failing to file a cross Grand Jury notice is not, by itself, ineffective assistance of counsel. People v. Sturgis, 199 A.D.2d 549, 606 N.Y.S.2d 241 (2nd Dept., 1993); People v. Bundy, 186 A.D.2d 357, 588 N.Y.S.2d 167 (1st Dept., 1992); People v. Otis, 186 A.D.2d 828, 589 N.Y.S.2d 816 (2nd Dept., 1992) .... On the other hand, appellate courts have found that subsequent to the filing of a cross Grand Jury Notice, errors by counsel which have the effect of precluding the defendant from testifying constitute ineffective assistance requiring dismissal of the indictment. People v. Jimenez, 180 A.D.2d 757, 580 N.Y.S.2d 393 (2nd Dept., 1992); People v. Lincoln, 80 A.D.2d 877, 436 N.Y.S.2d 782 (2nd Dept., 1981); People v. Moskowicz, 192 A.D.2d 317, 595 N.Y.S.2d 464 (1st Dept., 1993).

Judge Reichbach continued by setting forth his interpretation for the basis for these two seemingly inconsistent lines of cases, and reconciling them.  He found that the distinction was between cases in which a defendant's desire to testify had already been communicated to the prosecution, in which failure of counsel to act was clearly in conflict with a client's stated interest, in contrast with those where no such notice had been filed.  (But he also noted another court's seemingly accurate but differing conclusion that this rationale wold find it was worse to do half the job - serving notice but not following through - than no job at all.  And that makes no sense, right?) (For a review of factors leading a different court to conclude the decision is strategic, see People v. Cox, 2007 WL 5160499 (N.Y.Sup.), 4 (N.Y.Sup.,2007.))

So if failing to inform a client is not per se ineffectiveness, are we off the hook?  I don't think so, for a few reasons.

First, if the client has this right and we are striving to provide client centered representation, honoring our clients' rights to be involved in charting their course, it seems completely inconsistent to fail to advise them of this process and their right to participate in it.

Second, the statute clearly protects a client's right to testify before the grand jury. The decisions that fail to find ineffectiveness when a client claims the attorney did not enable him or her to testify before the grand jury seem to reflect that the issue was not preserved, or raised on the record below.  Of course it wasn’t – the client was not aware it was an issue or had to be raised.  Perhaps the client didn’t even know s/he had the right to testify. 

And in the recent Fourth Department decision, People v. Brumfield (Fourth Dept., Sept. 27 2013), the Court emphasized the importance of a defendant's right to testify before the grand jury, stating,

It is well settled that a defendant’s statutory right to testify before the grand jury “ ‘must be scrupulously protected’ ” (People v Smith, 87 NY2d 715, 721, quoting People v Corrigan, 80 NY2d 326, 332). We conclude that, because defendant complied with the requirements of CPL 190.50 (5) but was nevertheless denied his right to testify before the grand jury, the court erred in denying defendant’s motion to dismiss the indictment.

Additionally, if we are required to discuss the grand jury right with a client, how can we then decide the client does not get to exercise that right.

Given this emphasis on the importance of a defendant's right to testify before the grand jury, we should be at least as vigilant in protecting it as the Fourth Department, right?’

And if the failure of the prosecution to allow a defendant to testify is a violation of a client’s rights so substantial that an indictment gets dismissed when the defendant is deprived of that right, how is it less of a violation if we cause the deprivation?

Finally – sometimes we get it wrong.  In a case I handled recently, I begged and pleaded with a client not to testify.  The client went in (after we prepared for the testimony I so feared) and the case was no billed.  What if I had decided not to let him testify?

The alternative view raises the concern that if we let our clients testify in ways that damage their cases, then we may be held ineffective.  But if we write those CYA letters to the file and client, then how is this different from any other circumstance when our client has made a fundamental decision that we disagree with –such as taking a case to trial when we believe the evidence against them is rock solid and they should be pleading.

So although the right is not usually described as a fundamental right, I believe that it is – and that at some point the Court of Appeals will recognize the obligation of defense counsel to honor a client’s decision to testify even if defense counsel disagrees.


Jill Paperno and Brian Shiffrin


    Courts divide the decision-making between counsel and client into two categories – fundamental and strategic. If a decision is “fundamental” it is reserved to the defendant.  If it is strategic, it is reserved to the attorney.  People v. Colville 20 N.Y.3d 20.

A defendant having accepted the assistance of counsel, retains authority only over certain fundamental decisions regarding the case (i.e., whether to plead guilty, waive a jury  trial, testify in his or her own behalf or take an appeal; Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987; People v. Ferguson, 67 N.Y.2d 383, 390, 502 N.Y.S.2d 972, 494 N.E.2d 77 supra )

People v. White, 73 N.Y.2d 468, 478, 539 N.E.2d 577, 582-83 (1989).  See also, Jones v. Barnes, 463 US 745.

These holdings are consistent with the proper role of the attorney and the client. While defendant has a fundamental right to counsel and a fundamental right to represent himself, he has no right to “hybrid” representation (People v. Mirenda, 57 N.Y.2d 261, 265–266, n., 455 N.Y.S.2d 752, 442 N.E.2d 49 n.). Thus, a defendant who has a lawyer relegates control of much of the case to the lawyer except as to certain fundamental decisions reserved to the client (see, People v. Jordan, 96 A.D.2d 1060, 1061, 466 N.Y.S.2d 486, affd. 62 N.Y.2d 825, 477 N.Y.S.2d 605, 466 N.E.2d 145).

People v. Ferguson, 67 N.Y.2d 383, 390, 494 N.E.2d 77, 81 (1986)

    The United States Supreme Court explained division of authority in New York v Hill, 528 U.S. 110 (2000):

What suffices for waiver depends on the nature of the right at issue.“[W]hether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.” United States v. Olano, 507 U.S. 725, 733 (1993). For certain fundamental rights, the defendant must personally make an informed waiver. See, e.g., Johnson v. Zerbst, 304 U.S. 458, 464—465 (1938) (right to counsel); Brookhart v. Janis, 384 U.S. 1, 7—8 (1966) (right to plead not guilty). For other rights, however, waiver may be effected by action of counsel. “Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has–and must have–full authority to manage the conduct of the trial.” Taylor v. Illinois, 484 U.S. 400, 417—418 (1988). As to many decisions pertaining to the conduct of the trial, the defendant is “deemed bound by the acts of his lawyer-agent and is considered to have ‘notice of all facts, notice of which can be charged upon the attorney.’ ” Link v. Wabash R. Co., 370 U.S. 626, 634 (1962) (quoting Smith v. Ayer, 101 U.S. 320, 326 (1880). Thus, decisions by counsel are generally given effect as to what arguments to pursue, see Jones v. Barnes, 463 U.S. 745, 751 (1983), what evidentiary objections to raise, see Henry v. Mississippi, 379 U.S. 443, 451 (1965), and what agreements to conclude regarding the admission of evidence, see United States v. McGill, 11 F.3d 223, 226—227 (CA1 1993). Absent a demonstration of ineffectiveness, counsel’s word on such matters is the last


1.  Right to testify

    “One of the fundamental precepts of due process is that a defendant in a criminal proceeding has the right to testify, which right is guaranteed under both the Federal and New York State Constitutions (cites omitted).”  People v. Mason 263 AD2d 73, 76.  See also, People v. White, 73 NY2d 468.

    This is a decision the defendant gets to make; defense counsel may beg, plead and cajole the client not to testify, but may not prevent the client from testifying. 

    An attorney must inform the defendant of the right to testify, even if the attorney disagrees with it.  People v. Cosby, 82 AD3d 63. 

    Sometimes attorneys do not advise their clients of upcoming grand jury proceedings, but it is clear that a defendant has the right to testify before the grand jury as well.  (People v. Brumfield, __ AD2d __, 9/27/13 (Fourth Dept.)

2.  Whether to plead guilty

    A defendant has the right to decide whether to plead guilty or go to trial.  People v. White, 73 NY2d 468.

3.  Whether to waive a jury and proceed with a bench trial

    A defendant has the right to decide whether to waive a jury trial and proceed with a bench trial.  People v. White, 73 NY2d 468. 

4.  Whether to appeal a conviction

     A defendant has the right to decide whether to appeal his or her conviction.  People v. White, 73 NY2d 468.

5.  Certain defenses

    A defendant is entitled to make the decision of whether to proceed with the defense of Extreme Emotional Disturbance (People v. Petrovich 87 NY2d 961).

    A decision of whether to pursue a defense of insanity may be one that is reserved to the defendant as discussed in dicta in People v. Washington, 5 Misc. 3d 957, reversed on other grounds Washington v. Poole, 742 F.Supp. 2d 3323, although the Third Department decision in People v. Copp 184 AD2d 859 suggests that decision is one reserved for the attorney.  See also, People v. Rizzo, 301 AD2d 682.

6.  Whether to be present during court proceedings

    A defendant has the right to be present at trial and certain pretrial proceedings.  The attorney cannot waive that right on behalf of the defendant.  Whether a proceeding is one for which the defendant has the right to be present depends on the nature of the proceeding.

In determining whether a defendant has a right to be present during a particular proceeding, a key factor is whether the proceeding involved factual matters about which defendant might have peculiar knowledge that would be useful in advancing the defendant's or countering the People's position. If so, as in Anderson (supra) and Turaine (supra), then the defendant has a right to be present. The Sandoval hearing in this case was such a proceeding.

People v. Dokes, 79 N.Y.2d 656, 660, 595 N.E.2d 836, 839 (1992)


        These are among the decision a lawyer can make unilaterally.  However, just because you can, doesn’t mean you should.  It’s always better if you and your client can reach a decision together after discussing all of the options.

    1.  Selecting a defense or requesting lesser included offenses

         A defendant does not have the right to determine whether to request a lesser included offense be charged to the jury with certain exceptions.

        This decision is a difficult one, as on the one hand, without lesser, the jury has to decide whether defendant is guilty of the top count or not, and the decision is “all or nothing”, while on the other hand, if there is insufficient proof on the top count, and a lesser is read to the jury, a jury may compromise and convicted on a lesser, instead of acquitting on everything.  Counsel should consult with the defendant, but counsel may not leave the decision entirely up to the defendant without advice of counsel.  People v. Colville, 20 N.Y.3d 20. 

    2.  Mistrial

        The defendant does not have to agree to the defense counsel’s request for a mistrial.  People v. Ferguson, 67 N.Y.2d 383.

    3.  Closure of the courtroom 

        Whether to consent to the closure of the courtroom is a decision that does not require the defendant’s consent.  People v. Vanegas, 243 A.D.2d 261.

    4.  Challenge to a particular juror

        Defense counsel retains sole authority to challenge jurors People v. Colon, 90 NY2d 824.

        5.  Foregoing second suppression hearing, waiving statutory speedy trial rights and other issues

The decision to forego a duplicate suppression hearing as superfluous is precisely the type of day-to-day decision making over which an attorney, in his or her professional judgment, retains sole authority (compare, People v. Colon, supra [jury selection involves tactical decisions entrusted to attorney];  *652 People v. Ferguson, 67 N.Y.2d 383, 502 N.Y.S.2d 972, 494 N.E.2d 77 [decision to consent to a mistrial is reserved to attorney]; People v. Trepasso, 197 A.D.2d 891, 602 N.Y.S.2d 291, lv. denied 82 N.Y.2d 854, 606 N.Y.S.2d 606, 627 N.E.2d 527 [decision concerning waiver of statutory speedy trial right is reserved to attorney]; People v. Johnson, 150 Misc.2d 1024, 570 N.Y.S.2d 773 [decision to waive operation of CPL 180.80 is reserved to attorney], with People v. Petrovich, 87 N.Y.2d 961, 641 N.Y.S.2d 592, 664 N.E.2d 503 [decision to request submission of extreme emotional disturbance defense to jury falls to the defendant]).

People v. Parker, 290 A.D.2d 650, 651-52, 736 N.Y.S.2d 162, 165 (2002)

Thursday, December 19, 2013

Basics of Grand Jury Practice In New York

Jill Paperno, Second Assistant Monroe County Public Defender

and author of  Representing the Accused: A Practical Guide to Criminal Defense
      Article 190 of the Criminal Procedure Law sets forth the rules relating to grand jury presentations.  As defined in Section 190.05 of the Criminal Procedure Law,
 A grand jury is a body consisting of not less than sixteen nor more than twenty-three persons, impaneled by a superior court and constituting a part of such court, the functions of which are to hear and examine evidence concerning offenses and concerning misconduct, nonfeasance and neglect in public office, whether criminal or otherwise, and to take action with respect to such evidence as provided in section 190.60.
            In Monroe County, there are usually at least two grand juries sitting at any one time.  The grand jury sits for a term of the court (CPL 190.15), which is usually a month in length, although upon application of the D.A. the period can be extended (190.15[1]).  As the grand jury sits, its decisions as to which cases are indicted, which are returned to lower court and which are dismissed are publicized periodically in a document called “the risings.”  (Not the Bruce Springsteen rising.)  So there are times that a prosecutor may commence a grand jury presentation, but delay the grand jury’s decision to see whether your client is accepting an offer.  The prosecutor may tell you that the grand jury has its “final rising” on a particular date, and that the prosecutor must know your client’s decision prior to that date. 
            Proceedings of the grand jury are not valid unless at least sixteen members are present (CPL 190.25).  At least twelve members must agree for a charge to be indicted (CPL 190.25). 
             The Grand Jury is a secret process (See CPL 190.25[4][a]); only specified individuals may be present during the grand jury’s work.  The list of those who may be present is contained in CPL 190.25(2).  The public may not be present.  Your client may not be present unless s/he chooses to testify, and then may only be present during his/her testimony.
             Although the Court and the District Attorney are the legal advisors to the grand jury, there is no judge presiding in the room during grand jury conduct.  Instead, the prosecutor reads the law to the grand jury and generally runs the show.  If you have a dispute about something that is occurring in grand jury in one of your cases, you may seek to have the County Court Part I Judge resolve the matter by requesting to see the judge with the prosecutor. 
             Section 190.30 of the Criminal Procedure Law sets forth the evidentiary rules applicable to the grand jury.  Notably, there are certain types of hearsay evidence that are admissible in grand jury, but hearsay is limited to the specific types of evidence set forth in that statute. 
             If you represent a witness who may appear before the grand jury, or a defendant against whom a case is being presented, you must become familiar with the statutes relating to compulsion of evidence and immunity (CPL 190.40), waiver of immunity (CPL 190.45), the statute that addresses who may call witnesses and the procedures when a defendant is a witness (CPL 190.50), and the statute that addresses an attorney’s role before the grand jury when representing a witness (CPL 190.52). 
             If you represent a defendant before the grand jury, unless s/he is a cooperating witness who has been offered immunity, you will be expected to review with your client the law relating to immunity and waiver of immunity.  Your client will have to sign a waiver of immunity that you will witness.
             Although the District Attorney’s Office has traditionally requested that the defendant sign an extensive waiver that exceeded the language of the Criminal Procedure Law, and also required that defense counsel sign an affirmation and acknowledge its signature in grand jury that defense counsel knows his/her role, a recent case decided by the Fourth Department (and discussed previously in this blog) confirms that the practice of requiring waiver beyond what the statute sets forth is unlawful.
          In People v. Brumfield, in which the defendant was convicted after trial, the Fourth Department ruled:
 CPL 190.50(5) provides that, if a defendant serves upon the People a notice of his intent to testify before the grand jury, appears at the appropriate time and place, and signs and submits to the grand jury “a waiver of immunity pursuant to [CPL] 190.45,” the defendant “must be permitted to testify before the grand jury” (CPL 190.50[5][b]; see CPL 190.50[5][a] ). In the event that the defendant complies with those procedures and is thereafter not permitted to testify, the appropriate remedy is dismissal of the indictment (see CPL 190.50[5][c] ). The parties do not dispute that defendant complied with the first two requirements of the statute. The only dispute is whether defendant signed “a waiver of immunity pursuant to section 190.45” (CPL 190.50[5][b] ). CPL 190.45(1) provides that a waiver of immunity “is a written instrument” in which a person who is to testify before the grand jury stipulates that he or she “waives [the] privilege against self-incrimination and any possible or prospective immunity to which he [or she] would otherwise become entitled, pursuant to [CPL] 190.40, as a result of giving evidence in such proceeding.” Here, the paragraphs in the waiver of immunity form that defendant left intact stated that defendant waived his privilege against self-incrimination and any immunity to which he would otherwise be entitled pursuant to CPL 190.40. Thus, defendant signed a waiver of immunity form that complied with the requirements of CPL 190.45(1) and was therefore required to be permitted to testify before the grand jury (see CPL 190.50[5][b] ). It is well settled that a defendant's statutory right to testify before the grand jury “ ‘must be scrupulously protected’ “ (People v. Smith, 87 N.Y.2d 715, 721, quoting People v. Corrigan, 80 N.Y.2d 326, 332). We conclude that, because defendant complied with the requirements of CPL 190.50(5) but was nevertheless denied his right to testify before the grand jury, the court erred in denying defendant's motion to dismiss the indictment. We therefore reverse the judgment of conviction, grant the motion, and dismiss the indictment without prejudice to the People to re-present any appropriate charges under counts two through five of the indictment to another grand jury (see generally People v. Pattison, 63 AD3d 1600, 1601, lv denied 13 NY3d 799).
 People v. Brumfield --- N.Y.S.2d ----  (Fourth Dept. Sept. 27, 2013).  Although the Court ruled on the waiver issue and did not reach the attorney affirmation issue, it seems that a refusal to allow defendant to testify because the attorney refuses to sign an affidavit not required by the statute or acknowledge it in grand jury might also result in a reversal. The District Attorney has been granted leave to appeal the Fourth Department’s holding to the Court of Appeals.

Practical tips
            Because handling preliminary hearings requires a working knowledge of grand jury practice, you must read the grand jury statutes (CPL Article 190).  You should be aware of the following:
 1.  If your client wishes to testify before the grand jury, you must send the prosecutor a written notice of your client’s intent to testify.  (CPL 190.50[5][a]).  If the prosecutor is presenting on short notice, do your notice by email and fax, with an explanation included that you cannot send the letter by U.S. mail because of the short notice you received. 
     Some attorneys send these notices on each case both in order to preserve the client’s right and to preserve any potential issue of the prosecutor presents the case without providing the defendant with the opportunity to testify.  But if you choose to engage in this practice, you must notify the prosecutor if your client is not testifying before the grand jury, as your client will be body-ordered to the grand jury, and may be left sitting, without you there, initially bewildered and eventually angry.
 2.  Often, it’s a bad idea for your client to testify before the grand jury.  You don’t yet know the evidence the prosecutor has in the case, you don’t yet know whether your client’s version varies greatly with that evidence or with any statement s/he may have made to the police, the client’s testimony can be used at trial, the grand jury is likely to indict any case the prosecutor presents to them, and you may be revealing more than you should to the prosecutor prior to trial, allowing the prosecutor to try to prepare the witnesses to refute your defense.  There are exceptions to the bad idea rule, but not many. (I should note that some of my colleagues engage in a more vigorous and less conservative grand jury practice than I do, with greater success.)
 3.  You are entitled to reasonable notice of the prosecutor’s presentation of the case if your client has been held for action of the grand jury on an undisposed of felony complaint and/or if notice has been served by the defense: 
 The Criminal Procedure Law imposes a new obligation on prosecutors under CPL 190.50(5)(a): a defendant must be informed that a Grand Jury proceeding against that person is pending, in progress or about to occur, if that person has been arraigned on an undisposed felony complaint charging an offense which is a subject of the prospective or pending Grand Jury proceeding. CPL 190.50(5)(a) then adds in pertinent part that “[w]hen a criminal charge against a person is being or is about to be or has been submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his [or her] own behalf if, prior to the filing of any indictment * * * he [or she] serves upon the district attorney of the county a written notice making such request” (emphasis added). Once an accused serves such notice requesting an appearance before the Grand Jury, the District Attorney “must notify the fore[person] of the grand jury of such request, and must subsequently serve upon the applicant * * * a notice that [the applicant] will be heard by the grand jury at a given time and place. Upon appearing at such time and place * * * such person must be permitted to testify before the grand jury and to give any relevant and competent evidence concerning the case under consideration” (CPL 190.50[5][b] ). The District Attorney must afford defendant “reasonable  *413 time” to exercise the right to appear as a witness at the Grand Jury (CPL 190.50[5][a] ).
 People v. Evans, 79 N.Y.2d 407, 412-13, 592 N.E.2d 1362, 1364 (1992)
             Reasonable notice is not five or ten business hours after you’ve been assigned. (See CPL 190.50[5][a], People v. Degnan, 246 AD2d 819, “Insofar as is pertinent to this appeal, CPL 190.50(5)(a) provides that the District Attorney must notify the defendant or his or her attorney of a pending Grand Jury proceeding in such manner as to afford the defendant reasonable time to exercise his or her right to appear as a witness therein. Defendant asserts that the one-day notice provided by the People here was insufficient to allow him a reasonable opportunity to exercise his right to appear as a witness in the Grand Jury proceeding. We agree.”  People v. Degnan, 246 A.D.2d 819, 820, 667 N.Y.S.2d 808, 809 (1998)) If you get notice that is unreasonable, send a letter to the prosecutor that the notice is unreasonable, and that you will be filing a five day motion seeking dismissal of the case after indictment if they do not provide you with reasonable notice.
 4.  A defendant has the right to testify before a grand jury that has not voted the case if the defense serves timely notice. 
 Our reading of CPL 190.50(5) together with its history and purpose warrants the conclusion that the Legislature intended that individuals who give timely notice reasonably prior to the prosecution's presentment of evidence and prior to the Grand Jury vote on an indictment are entitled to testify before the vote.  People v. Evans, 79 N.Y.2d 407, 413, 592 N.E.2d 1362, 1365 (1992)
 So ask your prosecutor if they have voted the case yet; if they have, do not have your client testify.  They will not tell you if you do not ask (and may not tell you if you do!).  Tell them you will be filing a five-day motion (CPL 190.50[5][c]) unless they withdraw the case from that grand jury and present to another that has not voted the case.
 5.  If a defendant is out of custody on a felony and the case is no longer pending in local criminal court, the defendant is not entitled to notice of the presentation of the case unless the defendant has requested the opportunity to testify in writing (as 190.50[5][a] has been interpreted by courts).  Similarly, if the case has been referred to the grand jury following a preliminary hearing or a defendant waives the preliminary hearing, you are not entitled to notice.   
 As a general rule, the target of a Grand Jury investigation is not entitled to any sort of notice that a Grand Jury proceeding against him is in progress or about to occur. The one exception is where a person has been arraigned on a “currently undisposed of felony complaint” charging the offense to be presented to the Grand Jury (subd. 5[a]). The purpose of this is to preserve some opportunity for a defendant to negate probable cause and avoid indictment. Thus the exception does not apply where defendant waives a preliminary hearing at arraignment or if the case is presented to the Grand Jury after the defendant has been held for the Grand Jury on the basis of a preliminary hearing.
Commentary N.Y. Crim. Proc. Law § 190.50 (McKinney)
             Because many judges in Monroe County do not adhere strictly to Article 180, a question remains as to whether a defendant with an adjourned date for “screen” has an undisposed of felony pending in local criminal court, as undisposed of felonies are addressed in a statute that doesn’t specifically describe this situation.  To be on the safe side, if your client wants to testify before the grand jury, serve notice whether or not the client is in custody or the case has been adjourned in local court.
             If notice is served, it must notify the prosecutor of intent to testify on either all charges pending before the grand jury, or the specific charge the defendant wants to testify about.  A notice served on one charge will not be deemed notice on another matter.  See People v. McNamara, 99 A.D.3d 1248, 951 N.Y.S.2d 816 (2012) leave to appeal denied, 21 N.Y.3d 913, 988 N.E.2d 893 (2013). 
            And if the prosecutor does not provide notice of grand jury presentation when s/he is required to, the defense must file a “five day motion” to properly challenge the failure:
 Special note should be taken of the fact that, although a motion to dismiss an indictment for failure to honor a defendant's request to appear before the Grand Jury is, technically speaking, a “pretrial motion” (see CPL §§ 210.35 [4], 255.10), the timing is not governed by the forty-five day period specified in CPL § 255.20. This motion must be made within five days after arraignment or it is waived (see CPL § 190.50[5(c)]).  (Emphasis added)
 Commentary, N.Y. Crim. Proc. Law § 190.50 (McKinney).

People v Oddone - Three Significant Evidentiary Rulings in a Single Decision

Jill Paperno, Second Assistant Monroe County Public Defender

The Court of Appeals reversed a conviction of Manslaughter in the First Degree on December 12, 2013 in People v. Oddone.  The defendant, Mr. Oddone, originally charged with murder, was convicted of manslaughter based on his choking of another man in a bar.  Oddone had been dancing with a woman on a table in a bar.  The bouncer, Reister, told him to get off.  When Oddone refused, Reister pushed him off the table.  A fight began and Oddone got behind Reister and put his arms around his neck.  Oddone choked him until Reister fell down, and continued to choke him while on top of him on the floor.  Reister passed out and died two days later.  Defendant let go and ran out of the bar.  The defense raised justification at trial.  The length of time Oddone choked Reister was hotly contested. 

In reversing this Oddone's conviction, the Court made three significant evidentiary rulings,

1.  The Deputy Medical Examiner was permitted at trial to testify about the duration of the period during which Oddone choked Reister based on the petechiae (red spots caused by bursting of blood vessels in the eyes) he observed as well as discoloration of Reister's face.   The defense claimed that there was no scientific basis for the testimony about how the appearance of petechiae could establish the length of time of compression on the neck.  The Court found that as the Medical Examiner testified based on his experience rather than scientific principle, a Frye determination was not required.  The Court noted that the defense can respond to such testimony with experts and cross.  (But what if you have no idea that an expert is about to go where no man has gone before?  It is difficult, if not impossible, to find an expert in the middle of trial.)

2.  A defense witness gave a prior statement to an insurance company investigator that the choking occurred for 6 to 10 seconds.  At trial she testified that it lasted about a minute or so, and that she didn't know how long.  Defense counsel sought to refresh her recollection. But the trial court refused to permit this, ruling that the witness had "given no indication she needs her memory refreshed."  The Court of Appeals, holding that this ruling was reversible error explained that,  

(W)hen a witness says an incident "could have" lasted "a minute or so" and adds "I don't know" the inference that her recollection could benefit from being refreshed is a compelling one.  More fundamentally, it was simply unfair to let the jury hear the "a minute or so" testimony - testimony damaging to the defense, from a defense witness's own lips - while allowing the defense to make no use at all of an earlier, much more favorable, answer to the same question.  The trial court suggested to defense counsel that this was "an effort to impeach your own witness," but counsel had not yet got to the point of impeachment; she only wanted to refresh the witness's recollection.  And in any event, technical limitations on the impeachment of witnesses must sometimes give way, in a criminal case, to a defendant's right to a fair trial. (Chambers v. Mississippi, 410 US 284 [1973]).  (Emphasis added.)
This holding is extremely important. In Chambers the United States Supreme Court held that a state's evidentiary rule is trumped by and cannot preclude a defendant form introduce reliable evidence consistent with his right to present a defense. Subsequently, the Court, citing Chambers, ruling that “the hearsay rule may not be applied mechanistically to defeat the ends of justice” (Green v Georgia, 442 US 95, 97 [1979]). And now the New York Court of Appeals has cited Chambers for this same proposition. This is a holding that one would be wise to keep in the pocket for a rainy day or for your next trial.

3.  The defense sought to call a psychology professor to testify as an expert on the issue of eyewitness observations.  The witness would have explained that "It is generally accepted in the field of forensic psychology that eyewitnesses routinely overestimate the duration of relatively short events lasting a few minutes or less."  The trial court barred the testimony.  The Court, interpreting People v. Legrand, (abuse of discretion to exclude testimony about reliability of eyewitness identification if case is based solely on accuracy of witness's identification), noted that Legrand can stand for the principle that "there are cases in which it is unfair to deprive the jury of expert testimony about the reliability of eyewitness observations."  Although the Court did not determine whether the exclusion of this testimony at trial was an abuse of discretion, it seemed to support its admission on the retrial necessitated by the reversal on the refreshing memory issue.
So one win, one loss, and one tie (but really close to a win).  And, if I'm interpreting it correctly, an interesting theme throughout the decision about what is fair to a defendant, rather than hypertechnical adherence to rules. 

Tuesday, November 19, 2013

Two CPW Decisions From the Court of Appeals

The Court of Appeals decided two CPW cases today.

In People v Jones (#185 decided 11/19/13), defendant was charged with CPW2 for possessing a weapon in his home, having been previously convicted of a crime.  He claimed that, despite his prior conviction, he could rely on PL 265.03(3)'s exception for home or business.  The Court of Appeals agreed with the Appellate Division decision below that PL265.03(3) creates an exception to the home or business exception.  It provides that possession of a loaded firearm "shall not, except as provided in subdivision one ... of 265.02 of this article, constitute a violation of this subdivision if such possession takes place in such person's home or place of business."  PL 265.02(1) applies to those who have previously been convicted of a crime. 

 Defendant had contended that the language meant that such possession was CPW3.  Defendant argued that, prior to 2006, possession outside of a home or business was CPW3, and the legislature made an error in drafting the statute.  The CoA held that the legislative history showed that the Legislature intended to increase CPW from 3 to 2 where the defendant had a prior conviction yet possessed a loaded firearm in his home or business.  Unhelpfully, there was a drafter's memo to the relevant legislation which said pretty much that.

Jones is also important because the Court of Appeals held that service by the court of a copy of an order does not start the clock for filing a notice of appeal.  Only service by the prevailing does so, and defendant never served the order on the People.  The notice of appeal, which would have been too late if the clock had started the day the court gave copies to the parties, was not untimely.

In People v Hughes (#184 11/19/13) the Court of Appeals rejected defendant's argument that, while punishing the defendant for CPW was okay, punishing it as a C felony violated the second amendment.  Defendant possessed an unregistered handgun at his ex-girlfriend's apartment, and used it (as found by the judge as trier of fact at the trial), to justifiably shoot a man defendant knew as "Maniac Guns" when he pulled a gun on defendant.  Defendant had a prior conviction for Resisting Arrest.  Under the decision above in Jones, defendant was guilty of CPW2.  Without the prior it would have been only CPW4.  The Court of Appeals rejected the argument that converting an A misdemeanor into a C felony based on a prior misdemeanor conviction violated the second amendment.  The Court held that, since only a "serious offense" would prevent the defendant from getting a license to possess the hangun in question, "there is no apparent reason why he could not have obtained a license to have a handgun in his home."  I have to wonder whether this last statement is in fact true, since unprosecuted complaints are sufficient to revoke a pistol permit already granted (Peters v Randall, 2013 WL 6038222  4th Dept Decided Nov 15, 2013).  The court noted that the issue was a novel one - whether there are limits to the increases a state can make to the severity of punishments for possessing weapons - but chose not to address it beyond saying that without strict scrutiny, the defendant could not prevail, and this was an intermediate scrutiny issue.

People v Hughes is important because the Court of Appeals upheld the Appellate Division decision that defendant's purported CPL 330 motion was sufficient to preserve his claim that the CPW2 conviction violated the second amendment.  The People argued that the CPL 330 motion was too late, and the CoA said "They had a point".  However, the court noted that the prosecution did not suggest that they had been prejudiced by the delay, and the trial court had ruled on the merits of the motion.  The Court of Appeals treated that the motion as one made under CPL 210.20, even though wrongly denominated a CPL 330 motion.  "The court, in the interest of justice, and for good cause shown, may, in its discretion, at any time before sentence, entertain and dispose of" such a motion on the merits (CPL 255.20[3]).  Because the issue was raised by defendant and decided by the trial court, the issue was preserved.

Tuesday, October 22, 2013

Failure to State The Obvious Might Constitute Ineffective Assistance of Counsel

James Eckert, Assistant Monroe County Public Defender 

When dealing with a Hearing Court who knows what the law is, there is a real temptation to simply ask the right questions knowing that the judge knows what the argument is as a result.  The problem is that appellate courts look for counsel to conclude the hearing by saying "the fact that the police didn't have a description and didn't have a report of a crime and didn't have any reason to arrest the defendant except that they wanted to 'see what's up' failed to preserve the arguments made on appeal."  It doesn't matter that everyone in the room knows what the issue is.  

You have to say the magic words.

Also, if you start a suppression hearing by claiming that you're overwhelmed with work and cannot competently represent your client, don't be too surprised if people believe you.  The Court of Appeals, in People v Clermont (2013 NY Slip Op 06806 [10/22/13]) the defense suppression motion said defendant had been stopped in a car when no car was involved.  More importantly (because it's far more common), defense counsel did not argue the suppression facts following the hearing:

"At the suppression hearing, the attorney did not marshal the facts for the court and made no legal argument.  This, coupled with his failure to make appropriate argument in his motion papers or to submit a post-hearing memorandum, meant that the defense never supplied the hearing court with any legal rationale for granting suppression.  Moreover, after the court issued a decision describing the sequence of events in a manner that differed significantly from the testimony of the police officer (the only witness at the hearing) and was adverse to the defense, defendant's attorney made no motion to reargue or otherwise correct the court's apparent factual error.  Counsel never ascertained whether the court decided the motion based on the hearing proof or a misunderstanding of the officer's uncontradicted testimony."

Defense counsel's failure at any time to make the key arguments is the reason counsel was ultimately found to be ineffective.  So a motion which lays out the facts and legal argument arising from those facts could be critical in some cases.  If you know what the hearing will be about, and there's no strategic reason not to lay it out in your papers, this is something to keep in mind.  Further, defense counsel erred in not taking exception to the court's misstatement of facts.  The burden to ascertain whether the court is mistaken or sloppy could be an uncomfortable one, but if you cite People v Clermont, I'm sure your judge will be very understanding and accept your criticism with grace and wit.  

The Court of Appeals relied on defense counsel's claim to be unable to provide effective assistance, but noted that counsel's representation was inadequate "before, during and after the proceeding".  In rejecting the prosecution's harmlessness argument, the Court of Appeals reaffirmed the importance of post-hearing argument and correcting a judge who messes up the facts, "In light of the litany of errors made by defense counsel, including the failure to offer legal argument concerning suppression or to attempt to correct the significant factual anomaly in the decision, our confidence in the fairness of the proceeding is substantially undermined."  Thus, the common practice of relying on the suppression court to know what the rules are and what the defendant's arguments would be (presumably given the questions asked by defense counsel) is risky.  Make a post-hearing argument either orally or in writing, laying out the facts and your legal argument arising from those facts.  Apparently you also have an obligation to take exception to the decision if it contains factual errors or is unsupported by the record.

Judges Rivera and Lippman dissented, giving a lengthy rendition of the facts saying that the gun should be suppressed.

Tuesday, October 8, 2013

Does a defendant have to sign an affidavit in support of a suppression motion?


Jill Paperno, 

Special Assistant Monroe County Public Defender

Although it has been twenty years since the New York Court of Appeals in People v. Mendoza (82 NY2d 415 [1993])  held that a defendant does not have to sign an affidavit in support of a suppression motion, some local judges still believe they must.  Hopefully, the Fourth Department's recent decision in People v. Starlet Battle, decided on 9/27/13, will help put this issue to rest.  In Battle, the Fourth Department affirmed defendant's conviction based on factual insufficiency of the allegations contained in the motion.  However, the Court stated

We agree with defendant that the court erred in ruling that defendant, in order to be entitled to a suppression hearing, was required to submit an affidavit in support of her motion.  As the Court of Appeals has stated, "suppression motions must be in writing, state the legal grounds of the motion and 'contain sworn allegations of fact,' made by defendant or 'another person' " (People v. Mendoza, 82 NY2d 415, 421, quoting CPL 710.60[1].  A suppression motion may be based on factual allegations made upon information and belief by defense counsel, provided that, as here, the sources of the attorney's information and the grounds of his or her belief are identified in the motion papers (see CPL 710.60[1]).  The court also erred in suggesting that defendant was required to deny participation in the crime.  It is well settled that a defendant must 'deny participating in the transaction or suggest some other grounds for suppression' in order to warrant a suppression hearing (see Mendoza, 82 NY2d at 429 [emphasis added]).   

Sunday, September 29, 2013

Statutory Language Cannot Be Simply Ignored By Prosecutors

One would think that the proposition that District Attorney cannot ignore or flaunt unambiguous statutory language is not a remarkable proposition. Indeed, as attorneys who prosecute others for acting as though adherence to the the strict requirements of law is only optional, one would think that prosecutors would be sticklers for compliance with statutory language. As detailed below, however, the Monroe County District Attorney's office apparently believed that it could ignore the statutory provisions regarding a defendant's right to testify at the grand jury and instead, unilaterally impose its own set of requirements and conditions for a defendant's right to testify. Even worse, trial judges, and many defense attorneys in Monroe County acquiesced in this lawless deprivation of defendants' rights. Finally, as detailed below, the Appellate Division, Fourth Department, in People v Brumfield (2013 NY Slip Op 06120 [4th Dept  9/27/13]), held that the District Attorney cannot validly refuse to permit a defendant to testify at the grand jury where the defendant has complied with the statutory requirements, but refused to agree to the additional waivers sought by the District Attorney.

The Criminal Procedure Law provides that a defendant had a right to testify at a grand jury if a defendant serves upon the People a notice of his intent to testify before the grand jury, appears at the appropriate time and place, and signs and submits to the grand jury "a waiver of immunity pursuant to [CPL] 190.45," the defendant "must be permitted to testify before the grand jury" (CPL 190.50 [5] [b]). CPL 190.45 (1) provides that a waiver of immunity "is a written instrument" in which a person who is to testify before the grand jury stipulates that he or she "waives [the] privilege against self-incrimination and any possible or prospective immunity to which he [or she] would otherwise become entitled, pursuant to [CPL] 190.40, as a result of giving evidence in such proceeding."

The Monroe County District Attorney has a waiver of immunity form that added six paragraphs of waiver of rights not set forth in the statute.  Included in this form are paragraphs in which the defendant states (1) that he understands "that the possible questioning before the Grand Jury will not be limited to any specific subjects, matters or area of conduct; (2) that he understands that by signing the form he gives "up all immunity and privilege to which [he] would otherwise have been entitled under the provisions of the United States Constitution, the Constitution of the State of New York, as well as any applicable statutory provisions"; and (3) he does "consent and agree tot he use of any testimony given by me before the Grand Jury or evidence hereby produced by me upon any investigation, hearing, trial, prosecution, or proceeding."

There is nothing wrong with the prosecutor seeking to have defendants waive additional rights. But it is difficult to understand why the defendant would want to sign that form when there is nothing offered to the defendant in exchange for giving up additional rights. Yet, most attorneys in Monroe County acquiesced to this request and had their clients sign the Monroe County District Attorney's form.

On attorney who resisted was Assistant Monroe County Public Defender John Bradley, who saw no reason for his client to waive more that the statue requires and who did not believe that the prosecutor could ignore that statute and unilaterally impose additional conditions before his client could testify. His client, Mr. Brumfield, agreed.So when the ADA presented Brumfield with the Monroe County District Attorney's waiver of immunity form containing three parapgraph not required by statute, Brumfield deleted six paragraphs from that form and then signed the form before a notary public.

Despite Mr.Brumfield having fully complied with the statutory conditions for him to testify at the grand jury, the The District Attorney refused to permit Brumfield to testify before the grand jury. Brumfield then moved to dismiss the indictment obtained against him on the ground that his right to testify at the grand jury had been violated.Seems like a fairly easy motion pursuant to CPL 190.50 [5] [c]. Disappointingly, however, the trial court judge, denied the motion finding that  the signed waiver of Brumfield's privilege against self-incrimination and any immunity to which he would otherwise be entitled pursuant to CPL 190.40 was not a valid waiver.

This decision was reversed on appeal by the Appellate Division, Fourth Department,  which held that
the paragraphs in the waiver of immunity form that defendant left intact stated that defendant waived his privilege against self-incrimination and any immunity to which he would otherwise be entitled pursuant to CPL 190.40. Thus, defendant signed a waiver of immunity form that complied with the requirements of CPL 190.45 (1) and was therefore required to be permitted to testify before the grand jury (see CPL 190.50 [5] [b]). It is well settled that a defendant's statutory right to testify before the grand jury " must be scrupulously protected' " (People v Smith, 87 NY2d 715, 721, quoting People v Corrigan, 80 NY2d 326, 332). We conclude that, because defendant complied with the requirements of CPL 190.50 (5) but was nevertheless denied his right to testify before the grand jury, the court erred in denying defendant's motion to dismiss the indictment. We therefore reverse the judgment of conviction, grant the motion, and dismiss the indictment...
There is nothing in this decision which precludes the District Attorney from continuing to use the form. Hopefully, however, attorneys  will  no longer agree to sign this waiver form and defendants who refuse to sign the form will no longer be penalized.

Great work by David Juergens on the appeal.

Sunday, September 22, 2013

Crime and Punishment, Part 2; Where you end up usually depends on where you start

The other catalyst was Steve Earle’s “Ellis Unit One,” written from the perspective of a regular-Joe, death row prison guard who’s not handling the stress of his job real well:

. . .Last night I dreamed that I woke up with straps across my chest,
And something cold and black running through my lungs,
And even Jesus couldn’t save me, though I know he did his best,
But he don’t live on Ellis Unit One.

So he sees elements of his condemned charges in himself, and visa versa.  But the juries who condemned the same men did not experience this same level of commonality.  Instead, those juries saw not shared traits, but “otherness” sufficient to warrant exterminating the menace.  But what is the capacity of juries asked to weigh mitigation evidence to truly appreciate and consider another’s circumstances? According to David Eagleman, PhD, a neuroscientist at the Baylor College of Medicine and director of the Laboratory for Perception and Action ( and the Initiative on Neuroscience and Law (, it’s pretty limited.  In his thought-provoking 2012 article for The Atlantic titled “Brain on Trial,” ( he addresses the precepts of accountability, responsibility, and the punishments that flow from what science is revealing to be the flawed assumptions upon which the criminal justice is grounded:
Many of us like to believe that all adults possesses the same capacity to make sound choices. It’s a charitable idea but demonstrably wrong.  People’s brains are vastly different. 
Every mitigation jury needs to hear this, if not verbatim, than in sum and substance.  What follows is the best two-page summary of how biologically-imposed impediments to free will compel consideration of mitigation evidence in criminal justice sentencing that I have seen.  This section concludes with the following:
It is problematic to imagine yourself in the shoes of someone breaking the law and conclude “Well, I wouldn’t have done that” – because if you weren’t exposed to in utero cocaine, lead poisoning, and physical abuse, and he was, then you and he are not directly comparable.  You cannot walk a mile in his shoes. 
Of course you wouldn’t have done that.  Who would? And why? Eagleman’s article and his research included on the above websites provides science-based answers to these questions that juries asked to evaluate mitigation evidence wrestle with.

He examines not only the concept of free will, but just as importantly, “free won’t” – whether one has the ability not to act, and the concept of “choice” as affected by the spectrum of an individual’s neurobiology, and how those limitations butt up against the mostly one-size-fits-all approach to accountability based on a defendant’s “choices.”

I read in the article a challenge for criminal defense practitioners to do a better job of educating jurors concerning the reasons why the criminally accused acted as he or she did, which not infrequently, as Eagleman notes, are based on “the unique pattern of neurobiology inside each of our heads [that] cannot qualify as choices; these are the cards we’re dealt.”  So are the defendant's deficiencies a product of nature or nurture?  It doesn't matter, as Eagleman notes when consdering accountability, since the defendant had no choice in either one.

Maybe even more important is the idea of helping jurors understand why they are particularly poorly-equipped to accurately weigh the extent and effect of a defendant’s limitations.  I think we generally do a sub-par job of this, perhaps because many of our assumptions and stuff we think we know (assumptions shared by, and taken for granted by jurors as true) are proven, as science advances, to be just plain wrong (think factors in reliability of eye-witness identification: mind like a video camera/never forget a face/better powers of observation under stress ).

David Eagleman’s research provides a empirical basis to address the “pull yourself up by your own bootstraps/self-determinism/wholly independent actor” arguments that, while appealing to juries, are misleading and just plain wrong.  Next time you have to think about mitigation, you could do worse than spending an afternoon on the websites listed above.

Crime and Punishment, Part 1

A couple of things (not counting but maybe not unrelated to the new Pope’s turn toward inclusiveness – what Frank Bruni in this morning’s NYT called “a refreshing example of humility in a world with too little of it”) got me thinking about crime and punishment, forgiveness (or not), how our criminal justice system deals with offenders, and whether the results are equitable, or rational, or based on sound premises.

This was the first.  Alan Rosenthal, of the Center for Community Alternatives, passed along this petition in support of compassionate release for nearly-74-year-old attorney Lynn Stewart, who is dying in prison of stage 4 cancer.  As Alan noted:
I have had friends and clients who have died in prison, separated from family and loved ones. The very thought that we allow this to happen is shockingly inhumane and deplorable in a “civilized” society.  Beyond politics and personal disagreements, this is about humanity - our humanity . . . What I [] ask is that you each, in a time of quiet reflection, ask yourself if anyone should be left to die in the darkness and loneliness of prison.  
New York City attorney and fellow NYSACDL member Paul Layton went on to note that:
Even if one disagrees with Lynn’s politics and abhor the conduct that led to her conviction as I do, it was in my opinion, a travesty for her sentence to have been enhanced and more importantly, Lynn would sign for you because she believes in standing together as lawyers for colleagues.  I know her family and they are warm wonderful people.  I know Lynn and she is warm and courageous and took cases and fought them and gave ‘em hell.  She was a great lawyer and remains one of our Bar's heroic warriors.  So I signed, and consider setting aside any differences of opinion regarding her politics, as I did,  to stand with her family and with one of our own. We can afford compassion, which has become rare in some circles, but remains the touchstone of the criminal defense Bar.
The petition can be found here:

Tuesday, September 17, 2013

A turn for the worse - pretext stops and the 99 foot signal

By Jill Paperno
Second Assistant Monroe County Public Defender

As the weather turns, it appears that the Rochester Police Department is embracing new methods of engaging in pretext stops.  So we see less stops for walking in the street when the sidewalk was available, and failure to have a bell on a bike (which are only ticketed in certain parts of the city as far as I can tell – I haven’t seen any in the Browncroft, Park Avenue or South Wedge areas, for example).  And we are now becoming familiar with the requirements for when to signal a turn (also apparently not an issue in the aforementioned areas).  Unfortunately, New York law permits pretext stops and turns a blind eye to the racial disparity in how the stops are conducted (People v. Robinson, 97 N.Y.2d 341, 346 [2001])

The most common pretext stop I have seen recently is the “failure to signal a turn within 100 feet.”  These are cases in which our clients have signaled a turn, but the officer claims it wasn’t soon enough.  This violation is set forth in 1163(b) of the Vehicle and Traffic Law, which states that:
(a) No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in section eleven hundred sixty, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided. (b) A signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning. 
Of course, sometimes people decide to turn at the last minute.  And many of us do not signal a turn prior to 100 feet, or do not even know what the 100 feet distance looks like.  And I’m guessing, if you live in a suburb (or the aforementioned areas) you can turn at the last minute and not know how to measure 100 feet without getting stopped.  But there are segments of our population who are stopped every day, and then detained for lengthy periods, as police create excuses for searching their vehicles following the failure to signal prior to 100 feet.  (My favorite recent excuse for a search - the passenger was moving his hands toward the center console while the car was being driven!)

Although police may stop a vehicle when there is a legitimate traffic violation, their authority to detain the vehicle and search are not unfettered.  We often cite People v. Marsh when opposing these extended stops and searches.  In Marsh the Court of Appeals stated:
The search for weapons is a special exception to the proscription against warrantless searches, and it should not be extended beyond its purpose of securing the safety of the officer and preventing an escape. A motorist who exceeds the speed limit does not thereby indicate any propensity for violence or iniquity, and the officer who stops the speeder has not even the slightest cause for thinking that he is in danger of being assaulted. We can only conclude that, even though the ‘rules of criminal law are generally applicable’ to traffic violations (People v. Byron, 17 N.Y.2d 64, 66), the Legislature never intended to authorize a search of a traffic offender unless, when the vehicle is stopped, there are reasonable grounds for suspecting that the officer is in danger or there is probable cause for believing that the offender is guilty of a crime rather than merely a simple traffic infraction. (cites omitted).
People v. Marsh, 20 N.Y.2d 98, 101-02 (1967). 
Once the police stop a vehicle for a traffic violation, if there is no additional basis for stopping, detaining and searching, the police must issue the traffic ticket and let the person continue on his or her way.  In People v. Banks the Court of Appeals stated:
A traffic stop constitutes a limited seizure of the person of each occupant (cites omitted). For a traffic stop to pass constitutional muster, the officer’s action in stopping the vehicle must be justified at its inception and the seizure must be reasonably related in scope, including its length, to the circumstances which justified the detention in the first instance (emphasis added, cites omitted) . While the stop was justified in the instant case, the length and circumstances of the detention were not. Consequently, the evidence ultimately seized must be suppressed (cite omitted). 
Trooper Cuprill’s observations of Jones’ seat belt violation justified the initial stop of Jones and defendant in the vehicle. However, once Cuprill’s license and stolen vehicle radio check came back negative and he prepared the traffic tickets for the seat belt violations, the initial justification for seizing and detaining defendant and Jones was exhausted (cite omitted). The Trooper nevertheless retained their licenses, effectively forcing them to remain at the scene while he awaited the appearance of the backup Trooper he had requested. This continued involuntary detention of defendant and Jones and their vehicle constituted a seizure in violation of their constitutional rights, unless circumstances coming to Cuprill’s attention following the initial stop furnished him with reasonable suspicion that they were engaged in criminal activity (cites omitted)Contrary to the holdings of the courts below, defendant’s nervousness and the innocuous discrepancies in his and Jones’ answers to the Trooper’s questions regarding the origin, destination and timing of their trip did not alone, as a matter of law, provide a basis for reasonable suspicion of criminality (cites omitted).  
People v. Banks, 85 N.Y.2d 558, 562 (1995).

In People v. May, the Second Department further detailed what police may and may not do during a traffic stop, citing Banks:
To begin, the officers’ initial approach of the Impala, their request for limited information and documents, and their detention of the vehicle for purposes of calling in a computer check and drawing up a summons were proper based upon the traffic violation (cites omitted). However, a traffic stop constitutes a limited seizure of a vehicle’s occupants (cites omitted), and the length of any subsequent detention must be reasonably related to the circumstances which first justified the stop (cites omitted).
In Banks, the Court of Appeals reversed a denial of the defendant’s suppression motion where the defendant’s car was pulled over on the Thruway for a seat belt violation, and thereafter detained while the Trooper who stopped them called for back-up to search the vehicle. The Court held that
the defendant’s nervousness and the innocuous discrepancies between the driver’s and the passenger’s answers regarding the origin, destination and timing of their trip did not provide a basis for reasonable suspicion of criminality (cite omitted). In Barreras, this Court reversed the denial of the defendant’s suppression motion, where the defendant’s car had been pulled over for going through a stop sign, and although his papers were in order, the officer, suspecting further illegality but unable to supply an objective reasonable foundation for his suspicion, continued his questioning and then asked for permission to search the car. We held that “ ‘[o]nce defendant’s papers were all found to be in order, the officers, without more, were obligated to issue the stop-sign summons and allow defendant to resume his journey, i.e., the initial justification for seizing and detaining defendant ... was exhausted’ (253 A.D.2d at 373, 677 N.Y.S.2d 526).” 
People v. May, 52 A.D.3d 147, 150-51 (2008).

What can be done do to challenge these stops short of a New York City style class action?  Investigate and litigate.

First, when you get one of these cases, check to see if there are any city surveillance videos in the area, and even perhaps red light cameras.  To determine whether there is an RPD video camera nearby, contact Corporation Counsel and email your request to the attorney who handles RPD matters, asking whether there was a camera in the area, and asking that any video be preserved.  You should do this as soon as possible, as the video is only preserved for a limited time.  You must then obtain a judicial subpoena duces tecum to obtain the video.  Even if the video does not reflect the signal or lack of signal, it might reflect other facts inconsistent with the officers claims about your client’s conduct.

Next, consider having an investigator measure the distance of 100 feet in the area, and getting aerial views of the area.  Check the local businesses to see if they have video cameras.  I am guessing that the police are overestimating the 100 feet distance.  So, if Wikipedia is right and a full size car is 197 inches, then the distance is about 6 car lengths.  Then note the buildings and other landmarks in the area.  Can the officer identify where the signal was first turned on?  Of course they can’t - first, because they won’t remember the area, and second, probably, because your client actually did signal enough in advance.

Make sure you move for the suppression hearing.  This is going nowhere if you aren’t moving to suppress whatever was seized.  And remember, if your client is a passenger, you have a right to challenge the stop of the car.  (People v. Millan, 69 NY2d 514).

At the hearing,  consider introducing the overhead map of the location and having the officer mark where the stop occurred if you believe the officer cannot do it, or if the officer is likely to estimate incorrectly.  Have your investigator ready to testify to the location of the 100 feet mark.  Consider whether there are other reasons the defendant may not have signaled - they had just decided to turn for some reason (not to do with the police following them - left the potato salad on the counter, forgot to put the garage door down, hankering for an ice cream).  If you have videos, review them before the hearing and listen for whether the officer’s testimony is inconsistent with the video.  Consider introducing the video as evidence to discredit the officer as to locations, times, actions, physical features of the area, etc.  If the officer followed the defendant for a lengthy period just waiting for an opportunity to stop him/her (probably him), cross examine the officer about all of the things your client did right - stopping at lights or signs, signalling other times, etc.

Remember that even if the police had a right to stop the car for the traffic violation, the stop must be limited, and the police cannot ask if the defendant had a weapon based solely on the traffic stop.  “Whether the individual questioned is a pedestrian or an occupant of a vehicle, a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot.”  People v. Garcia, 20 N.Y.3d 317, 324 (2012).

The language of People v. Edwards, where the Court of Appeals injected “objective reasonableness” into this morass of race-based traffic stops presents a formidable hurdle to get over when challenging such stops:

“The initial stop of defendant’s vehicle was permissible and the police officers’ subjective motivation to investigate possible drug activity does not negate the objective reasonableness of the officers’ actions (see, People v. Wright, 98 N.Y.2d 657, 658–659 [2002]; People v. Robinson, 97 N.Y.2d 341, 350 [2001]).” People v. Edwards, 14 N.Y.3d 741, 742 (2010).