Sunday, February 10, 2013

Must Defense Attorneys Guess What Is Not In The Box?

The logical predicate for a requirement that a defendant be precise in framing a defect  requiring redress is that the defendant reasonably be aware of such defect. Thus, for example, in considering what a defendant must allege to obtain a suppression hearing, the Court of Appeals has held that a
factor in determining the sufficiency of a defendant's factual allegations is the degree to which the pleadings may reasonably be expected to be precise in view of the information available to defendant. The CPL expressly relieves defendant of the burden of pleading facts in support of a motion to suppress identification testimony (CPL 710.60 [3] [b]), likely because in many instances defendant simply does not know the facts surrounding certain pretrial identification procedures, such as photo arrays (People v Rodriguez, 79 NY2d 445, 452-453). It would be unreasonable to construe the CPL to require precise factual averments when, in parallel circumstances, defendant similarly does not have access to or awareness of the facts necessary to support suppression
People v Mendoza,  82 NY2d 415, 429 (1993) ("This is an instance where defendant's lack of access to information precluded more specific factual allegations. Although the Appellate Division may have been correct in *434 characterizing as “speculative” defendant's allegation about the guard's status--indeed, defendant provided no factual support for his claim--a guard's licensing status, unlike facts regarding a defendant's own actions or observations, is not something a defendant could be expected to know and thus allege with particularity." Mendoza at 433-434).

In contrast to this holding, the Appellate Division, Fourth Department, in People v Madera (2013 NY Slip Op 00812 [4th Dept 2/8/2013]), held that  refused to consider defendant's (meritorious - see) claim that the evidence before the grand jury was legally insufficient to support the indictment on the count of assault in the first degree, because the defendant
failed to preserve that contention for our review inasmuch as his omnibus motion . . . failed to set forth the specific grounds for dismissal now set forth on appeal, i.e., that the evidence was insufficient to establish . . . the element of [serious physical injury]. (People v Agee, 57 AD3d 1486, 1487, lv denied 12 NY3d 813; see People v Becoats, 71 AD3d 1578, 1579, affd 17 NY3d 643, cert denied ___ US ___, 132 S Ct 1970; People v Cobb, 72 AD3d 1565, 1565-1566, lv denied 15 NY3d 803).
  The problem with requiring specific and precise allegations regarding the insufficiency of the evidence at the grand jury is that the defendant rarely has access tot he grand jury minutes before filing such motions. Thus, counsel is left to guess what elements were not proved at the grand jury. Under the logic of Mendoza, broad allegations of insufficiency would be enough to  preserve the issue. But given the holding in Madera, it would seem that an omnibus motion should separately list each element of each charged crime and allege that the proof was insufficient to establish that element. Perhaps even that will be held to  be inadequate, since, without access to the grand jury minutes, the motion cannot say why the proof was inadequate. It is difficult to understand the justification for a preservation rule predicated on defense counsel precisely complaining about the content of proceedings as to which counsel is not given information.

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