New York Criminal Defense

The Use of a Peer-to-Peer File Sharing Program and Enhancement Under the Federal Sentence Guidelines

2012-01-25T19:20:00.004-05:00

by
Mark D. Hosken, Supervisory Assistant Federal Public Defender

The United States Sentencing Guidelines (USSG) include enhanced punishment for those individuals convicted of a child pornography offense involving distribution. The greatest enhancement (an increase of five levels) is applied if the offense involved distribution for receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain. [USSG § 2G2.2(b)(3)(B).]

What is distribution? Any act, including possession with intent to distribute...., related to the transfer of material involving the sexual exploitation of a minor. Accordingly, distribution includes posting material involving the sexual exploitation of a minor on a website for pubic viewing. [USSG § 2G2.2 comment, note 1.]

What is receipt for a thing of value? Any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit. Thing of value means anything of valuable consideration. [USSG § 2G2.2 comment, note 1.]

Frequently, sentencing courts apply the five level enhancement to those individuals utilizing peer-to-peer file sharing programs such as LimeWire, FrostWire, Kazaa, or Shareaza to download contraband images. Those courts reason once an individual installs a file sharing program it is configured to allow others to download the defendant’s collection of child pornography stored in a shared folder. The shared folder is a repository for the illegal images which others access and download. The conclusion being the defendant distributed child pornography with the expectation he would receive a thing of value – additional child pornography – from other peers.

This enhancement is applied in those situations when the defendant admits use of a file sharing program. Rarely is the government required to prove the defendant was proficient or knowledgeable in the settings found in the installation of the peer to peer program. Nor, is the government required to establish transfer of something of value other than the mere existence of the file sharing application. The discovery of the program with a shared folder is usually sufficient for the five level enhancement.
Recently, a panel of the Eleventh Circuit struck down the application of the five level enhancement finding the record did not support the conclusion that the defendant distributed child pornography for receipt, or expectation of receipt of a thing of value.

In United States v. Spriggs, ____ F.3d ____, 2012 WL 48016 (11th Cir., January 10, 2012), the defendant was convicted of receiving child pornography. Spriggs downloaded the images through a file sharing program, Shareaza. This peer to peer program provided for reciprocal sharing. Others could access and download files from Spriggs’ shared folder. The majority of Spriggs’ collection of contraband images was located in this shared folder. The record supported a finding that Spriggs knew Shareaza enabled others to access files on his computer. Similarly, Spriggs admitted he used the program to download and upload files.

The panel determined the expectation of receiving a thing of value must be contextual. The use of a file sharing program enables free access to files. The files are free. There is no sharing for valuable consideration as required under the Guidelines. Without proof that Spriggs and another user specifically agreed to share their files on a return promise to share files, there was no transaction conducted for valuable consideration.

Notwithstanding Spriggs’ plea to receiving child pornography and his use of a peer to peer file sharing program, the majority of the contraband images found in the shared folder, and his use of the program to download and upload files, there was insufficient evidence to support the five level enhancement for receipt, or expectation of receipt, of a thing of value.

The significance of this decision is the rejection of the enhancement for simply using a peer to peer file sharing program. Some sentencing courts previously considered the use of a file sharing program constituted bartering for something of value-more contraband images. Here, the panel in Spriggs specifically rejected that application. Moreover, the additional facts present in Spriggs (admissions of the use of shared folders and the distribution and receipt of contraband images) were not indicia of proof of sharing for valuable consideration. Simply put, the Guidelines’ enhancement requires something more.

Prospective Juror's Knowledge of Defendant's Reputation Potentially More Important Than Knowledge of the Crime Charged

2012-01-03T11:00:00.002-05:00

Do you think it might be wrong to have on the jury someone who has heard of the defendant and 'knows' he's a bad guy? Turns out, you're probably right.

The rule on whether a person can be fair and impartial is different if the prejudice we are worried about is about the defendant rather than the crime. There are different forms of pre-judgement which are attractive to potential jurors. If someone thinks a defendant must testify on his own behalf, for example, they might be able to be fair and impartial if we tell them they are wrong. In any event, we're going to have to take their word for it if they say they can set that view aside. Likewise, if the juror has heard specific claims regarding the proof of the crime in question, well, the whole trial is about the proof being brought before the jury, and if a juror says they can ignore other rumored evidence, we're probably going to have to take their word for it, at least in terms of challenges for cause, if they say that can forget about what they heard. However, what if a potential juror has heard about the defendant's general character or reputation? This is not something which will be countered at trial. For the most part it probably won't come up.

In other words, a prospective juror who has heard negative things about the defendant which are outside of the normal proof which we can expect to see at trial presents a special problem. It's not a matter of informing the juror that they are wrong about the law, and asking whether they can accept the law as explained by the court. It's not a matter of the juror expecting certain proof at trial, which we can ask them to set aside. It's a question of negative facts about the defendant which in all likelihood will not be answered or even talked about at trial. These concerns require a more exacting expurgatory oath than is typically required. In a case won by Mary Davison at the Third Department, that court said:

"Moreover, when the prospective juror's bias is based not upon a preexisting opinion as to the defendant's guilt of the crimes charged, but upon the defendant's over-all reputation or prior bad acts, "the evidence at trial might not address the basis of the juror's impression and thus may not alter this impression" (People v Torpey, 63 NY2d 361, 368 [1984]; accord People v Johnson, 94 NY2d 600, 614 [2000]). Under such circumstances, "'the test for whether [the juror's] bias has been overcome by declarations is even stricter than where the juror has expressed an opinion as to the defendant's guilt . . . [T]he prospective juror should be dismissed if there appears to be any possibility that his [or her] impressions . . . might influence [the] verdict'" (People vJohnson, 94 NY2d at 614, quoting People v Torpey, 63 NY2d at 368)."

(People v Wlasiuk,#102275 decided December 29, 2011).

Now, such issues might seem fairly uncommon, but when a potential juror indicates that he has heard of the crime through media coverage, it is worth the time to inquire whether that potential juror has also heard of related background information on the defendant. It is not uncommon for news coverage to review previous crimes the defendant got away with while building up the presumption of guilt as to the current one. If the relevant press coverage of a crime includes, say A) the defendant confessed; B) the defendant's DNA was found at the scene; C) the defendant is known for beating up his ex-girlfriends, it might well be C which presents the most promising avenue for voir dire.

You don't have to be a famous mobster to qualify.

NOTE - The court also noted that a for-cause challenge is possible even after a juror has been sworn: "Once a juror has been sworn, peremptory challenges are no longer available; a challenge for cause is permissible, but only before the first witness is sworn at trial and only "upon a ground not known to the challenging party" before the juror was sworn (CPL 270.15 [4]; see People v Harris, 57 NY2d 335, 349-350 [1982], cert denied 460 US 1047 [1983])."

Valid Waiver of Right To Appeal Held Not To Encompass Denial of Youthful Offender Status Not Mentioned at Waiver

2012-01-02T11:46:00.006-05:00

In People v Anderson ( 2011 NY Slip Op 09364 [4th Dept 12/23/11]), after holding the that there was a valid waiver of appeal, the Appellate Division, Fourth Department held that

We agree with defendant, however, that the waiver does not encompass his further contention concerning the denial of his request for youthful offender status. No mention of youthful offender status was made before defendant waived his right to appeal during the plea colloquy. Under those circumstances, we conclude that defendant did not knowingly waive his right to appeal with respect to Supreme Court's denial of the request by defendant for youthful offender status at sentencing (see generally People v McCarthy, 83 AD3d 1533, lv denied 17 NY3d 819; People v Fehr, 303 AD2d 1039, lv denied 100 NY2d 538; People v Hendricks, 270 AD2d 944).

The Court then rejected the defendant's contention that the court abused its discretion in denying his request for youthful offender status and declined to exercise our interest of justice jurisdiction to adjudicate him a youthful offender.

The Issuance of an Appearance Ticket Doesn't Not Justify a Search "Incident to Arrest"

2012-01-02T11:38:00.002-05:00

A pre-requisite of a valid search incident to arrest, is an arrest. "If there is no arrest, however, there can be no search incident thereto (see People v Evans, 43 NY2d 160, 165-166; People v Erwin, 42 NY2d 1064, 1065)." People v Kalikow (2011 NY Slip Op 09452[4th Dept 12/23/11]). In, Kalikow, the Fourth Department held that where a police officer merely issued an appearance ticket to defendant for violating a municipal open container ordinance and had no intention of performing a custodial arrest, but defendant nevertheless was searched, the search cannot be justified as a search incident to a lawful arrest.

Bullcoming v New Mexico (131 SCt 2705) Applied By the Fourth Department

2012-01-02T11:21:00.002-05:00

In recent years, the application of the right to confrontation in the context of laboratory or DNA test evidence has been the subject of much litigation at the United States Supreme Court

In Melendez-Diaz v Massachusetts (129 S.Ct. 2527 [2009]), the Supreme Court held that it violate the right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of a person who performed the test subject to confrontation. Thus, the admission at trial of three sworn “certificates of analysis” or affidavits showing the results of the forensic analysis performed on samples of the seized white powder was reversible error where the analyst did not testify. The Court rejected the ideas that the right to confrontation only applied when the evidence accused someone of a crime or didn’t apply to scientific tests, noting that crime labs have provided unreliable evidence in the past, and said that confrontation would help find the truth.

Then, in Bullcoming v New Mexico (564 U.S. __,131 S.Ct. 2705 [2011]), the Court held that under the confrontation clause “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.”

However, in People v Pealer (2011 NY Slip Op 08397 [4th Dept 11/18/11] the Appellate Division Fourth Department held that these holdings do not apply to the calibration and simulator solution certificates used in verifying the accuracy of the breathalyzer test, on the ground that these documents were testimonial subject to the right to confrontation.

A month later, in People v Morrison (2011 NY Slip Op 09450 [12/23/11]) the Fourth Department had a second opportunity to consider the application of Bullcoming. The Court held

Defendant further contends that the admission in evidence of a certified DNA report prepared by an analyst who did not testify at trial and the testimony of an analyst who testified at trial regarding that report violated his rights under the Confrontation Clause of the US Constitution Sixth Amendment (see generally Crawford v Washington, 541 US 36, 50-54). We agree. "The Sixth Amendment to the United States Constitution guarantees a defendant the right to be confronted with the witnesses against him [or her]' " (People v Brown, 13 NY3d 332, 338). "This provision bars admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify, and the defendant . . . had a prior opportunity for cross-examination' " (id., quoting Crawford, 541 US at 53-54). We must therefore determine whether the statements were "testimonial," because only testimonial statements are subject to the Confrontation Clause (see Davis v Washington, 547 US 813, 821).

In Brown (13 NY3d at 336), the report in question contained machine-generated raw data, graphs and charts of a male specimen's DNA characteristics that were isolated from a rape kit. The Court of Appeals held that the report was not testimonial inasmuch as there were "no conclusions, interpretations, or comparisons apparent in the report" (id. at 340; see People v Thompson, 70 AD3d 866, 866-867, lv denied 15 NY3d 757). The forensic biologist who conducted the actual analysis that linked the defendant's DNA profile to the profile in the victim's rape kit was in fact called by the People as a witness in Brown (id. at 340). That was not the case here, where the analyst who performed the tests and concluded that the DNA mixture profile from the vaginal swab sample was consistent with DNA from the victim mixed with DNA from defendant was never called to testify. Contrary to the People's contention, the analyst who was called to testify, i.e., the supervisor of the other analyst, did not perform her own independent review and analysis of the DNA data. Rather, her testimony makes clear that she had nothing to do with the analysis performed by the uncalled witness, and that her only involvement was simply reading the report after it was completed to ensure that the uncalled witness followed proper procedure. The People could not substitute her testimony for that of the actual analyst who performed the tests in order to avoid a violation of the Confrontation Clause (see Bullcoming v New Mexico, ___ US ___, ___, 131 S Ct 2705, 2709-2710).

The Court then determined that this error was harmless, since the defendant had confessed.

Whether the holding of People v Brown (13 NY3d 332) was correct will likely be decided by the Supreme Court in Williams v. Illinois, 131 S Ct ___ (cert. granted June 28, 2011), which has been argued and is pending decision.

A Prospective Juror with Implied Bias Is Unqualified Even If She Gives An Unequivocal Assurance She Can Be Fair and Impartial

2012-01-02T11:11:00.002-05:00

The Court of Appeals has repeatedly held that a prospective juror with actual bias, such as an opinion that the defendant is guilty, is qualified to serve on a jury as long as gives an unequivocal assurance she can be fair and impartial (People v Nicholas, 98 NY2d 749, 751 [2002]; People v Arnold, 96 NY2d 358, 362 [2001]; People v Johnson, 94 NY2d 600, 614 [2000]).

The rule is different with respect to a prospective juror who is said to have an “implied bias” based on a preexisting relationship with a potential witness that “is likely to preclude her from rendering an impartial verdict. ” Unlike actual bias, implied bias, requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect her ability to be fair and impartial (see e.g. People v Branch, 46 NY2d 645, 650 [1979]; People v Rentz, 67 NY2d 829, 831 [1986]). And such bias, whether acknowledged by the declarant or not, cannot be cured with an expurgatory oath.

In People v Furey, __NY3d__, 2011 NY Slip Op 09000 (12/15/11) , the Court of Appeals again applied this rule and reversed a conviction where a challenge for cause was denied with respect to a prospective juror with implied bias. In Furey, after noting that not all relationships qualify for this implied bias rule and that the “frequency of contact and nature of the parties' relationship are to be considered in determining whether disqualification is necessary” the Court held that it was an abuse of discretion to deny a challenge for cause where the prospective juror’s husband was a police captain who has assigned the detective who investigated the case and

she knew eight of the witnesses (seven police officers and an assistant district attorney) who were to testify at trial — more than half of the People's potential witnesses — and had frequent professional and social relationships with at least two of the police officers. Although [the prospective juror] offered unequivocal assurances of impartiality, those declarations were ineffective in a case like this because there was a considerable risk that she could unwittingly give undue credence to the witnesses she knew and her service would give rise to the perception that defendant did not receive a fair trial.

Insufficient Factual Allegations Render Complaint Jurisdictionally Defective

2011-12-13T11:48:00.002-05:00

We don't see misuse of NYCTA MetroCard charges very often, but the Court of Appeals decided such a case today in People v Hightower (#223 decided December 23, 2011). What makes the case applicable to us is that the defendant pled guilty to Petit Larceny, and a unanimous Court of Appeals dismissed the charges because the accusatory was jurisdictionally defective.

Hightower was charged with three charges, PL and two relating to the specific activity (swiping an unlimited MetroCard and accepting money for allowing another person to ride the subway). As I said, he pled to PL, so the fact that the other charges were perfectly well established by the accusatory was irrelevant. The prosecution claimed that Hightower had stolen the (unknown amount of) money which he obtained for use of the card. The Court of Appeals ruled that this money was never owned by the NYC Transit Authority. What is important for our purposes is not the discussion of when an agency becomes owner of the currency, but what failures in a misdemeanor accusatory will render it jurisdictionally defective.

"In People v Dreyden (15 NY3d 100, 103 [2010]), we recognized two broad categories of defects to be used as guideposts in determining whether an accusatory instrument is jurisdictionally flawed: "[t]he distinction between jurisdictional and nonjurisdictional defects 'is between defects implicating the integrity of the process . . . and less fundamental flaws, such as evidentiary or technical matters'" (quoting People v Hansen 95 NY2d 227, 231 [2000]) and we find that the violation of the reasonable cause requirement (as set forth in CPL 100.40 [4][b]) here falls into the first category.

In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged. Although the information in this case described the events with enough clarity to provide reasonable cause that defendant was engaged in the unlawful sale of NYCTA services and providing unlawful access to NYCTA services, we hold that it was jurisdictionally defective as to the crime of which defendant was actually convicted -- petit larceny."

100.40(4)(b) provides in turn "(b) The allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument."

Read together, these two provisions strike me as broad enough to be generally applicable to all failures of the accusatory to substantiate the charge against the defendant, except perhaps when the failure can be deemed "technical". My opinion: few things are going to be more technical than the issue of who owns the money a defendant collects for allowing someone to use his MetroCard. So if that's not technical, most of your cases will not be, either.

This is not a new rule of law, but it is a common occurrence, and so worth keeping in mind. This is especially true for two reasons. First, the defendant pled to PL, which normally vitiates any complaints about sufficiency, and the charges were nonetheless dismissed on appeal. That's a strong rule. Second, because the defendant had already served his time, the charges were dismissed outright. That's a pretty good result for reading the accusatory carefully.

You Say Potato, I Say Potaaato, You Say Robbery in the First Degree, I Say Petit Larceny (Or Robbery in the Third Degree)

2011-12-08T22:47:00.005-05:00

by
Jill Paperno
Special Assistant Monroe County Public Defender

1. When Is An Alleged Robbery Not A Robbery? (Was it a forcible stealing?)

Penal Law Section 160 defines robbery as "forcible stealing." The statute states "A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:
1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or 2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aides in the commission of the larceny.

we handle many cases in which a client steals items from a supermarket or store, and engages in a confrontation with security or the owner. Whether that confrontation makes the petit larceny a robbery depends on the particular facts of the case. If the defendant, with steaks tucked neatly wherever steaks may be tucked fights the officers, then there is a basis for a robbery charge. If, however, the defendant, hearing security officers' calls to stop, abandons the property and then fights off the officers, or they fall out before the confrontation, there is no robbery.

In People v. Nixon 156 AD2d 144 (First Dept. 1989) the First Department addressed this issue. Mr. Nixon, apparently smitten and broke, stole roses from a florist's stand. The florist pursued him and a physical confrontation involving the florist and a police officer followed. The roses were not found on Mr. Nixon after the confrontation. The First Department reduced Nixon's conviction from Robbery in the Third Degree to Petit Larceny, stating

"To sustain a conviction of robbery in the third degree, the prosecution must prove that the defendant used force in the commission of the theft (Penal Law § 160.05). More specifically, it must be shown not simply that the incident included the use of force, but that the defendant used or threatened 'the immediate use of physical force upon another person for the purpose of: 1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or 2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny' (Penal Law § 160.00; see also People v. Rudelt, 6 A.D.2d 640, 642, 179 N.Y.S.2d 916; People v. Chessman, 75 A.D.2d 187, 193–94, 429 N.Y.S.2d 224, appeal dismissed, 54 N.Y.2d 1016, 446 N.Y.S.2d 248, 430 N.E.2d 1301). The issue presented by the facts at bar is whether it was established that the defendant did, in fact, use physical force 'for the purpose of ... preventing or overcoming resistance ... to the retention [of the stolen property] immediately after the taking.' We do not think that it was.'"

In People v. Miller 217 AD2d 970 (Fourth Dept. 1995) (an appeal from one of my cases where the appellate attorney did way better than I did!) the Fourth Department recognized the requirement that the use of force be for the purpose of taking or retaining the property.

"In order to sustain a conviction for robbery in any degree, it must be shown that, in the course of committing a larceny, defendant used or threatened the immediate use of physical force upon another person for the purpose of either preventing or overcoming resistance to the taking of the property or the retention thereof or for the purpose of compelling the owner to deliver up the property' ( People v. Smith, 166 A.D.2d 879, 879–880, 560 N.Y.S.2d 718, lv. denied 77 N.Y.2d 882, 568 N.Y.S.2d 925, 571 N.E.2d 95, 78 N.Y.2d 927, 573 N.Y.S.2d 479, 577 N.E.2d 1071; see, Penal Law § 160.00). Thus, if the jury had rejected the prosecution's theory that defendant remained in possession of the stolen property (the meat) at the time that he threatened the use of physical force, the jury could not (emphasis added) have concluded that his 'conscious objective in threatening to use physical force was to prevent or overcome resistance to the retention of the property' ( People v. Kellam, 189 A.D.2d 1008, 1010, 592 N.Y.S.2d 864, citing People v. Nixon, 156 A.D.2d 144, 146, 548 N.Y.S.2d 194, appeal dismissed 76 N.Y.2d 870, 560 N.Y.S.2d 984, 561 N.E.2d 884)."

So when you have one of these cases, consider the statements of the security officers, owner or other witnesses, and whether they indicate the property was no longer on the defendant at the time the confrontation ensued.

2. Robbery in the First Degree - subdivisions 2, 3 and 4

Subdivision 2

While we're on the topic, when is a Robbery in the First Degree properly charged under 160.15(2) or (3) and (4) and what is the difference? Subdivision 2 is the charge that a person forcibly steals property and while doing so, he or another participant "is armed with a deadly weapon." Penal Law Section 10.00 (the definitions section), subdivision 12 defines "deadly weapon" as "any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles or metal knuckles." So if a defendant is alleged to have engaged in a robbery by either threatening or using a weapon that is not shown and not recovered, threatening or using a gun that is not discharged (to establish it is loaded) or threatening or using one of these other types of weapons, you should be able to challenge the indictment with respect to that charge.

Subdivision 3

The definition of robbery under subdivision 3 requires the defendant use or threaten the immediate use of a dangerous instrument. Immediate is the critical word there. In People v. Pena, the Court of Appeals stated, "Decisional law tells us that, though the statutory ground upon which the first degree robbery count was brought is not explicit in that regard (Penal Law, s 160.15, subd. 3), the jury was required to find that Turrell actually possessed a dangerous instrument at the time of the crime (see People v. Early, 59 A.D.2d 912, 399 N.Y.S.2d 145; People v. Briggs, 52 A.D.2d 1053, 384 N.Y.S.2d 894)." Thus, to be convicted of a charge of robbery requiring the use or threat of immediate use of a dangerous instrument, there must be proof beyond a reasonable doubt that the defendant actually possessed a dangerous instrument. (For the definition of dangerous instrument see Penal Law Section 10.00(13). The Court of Appeals, in People v. Grant 17 NY3d 613 clearly stated this past fall that a defendant's statement alone is insufficient to establish his or her possession of a dangerous instrument.

"We now hold, in accord with Appellate Division precedent, that a defendant's statement that he is in possession of a dangerous instrument, standing alone, does not supply sufficient proof to establish actual possession of a dangerous instrument at the time of the crime to support the charge of first-degree robbery. Rather, we conclude that this type of statement—whether in the form of a verbal threat or a handwritten note—only establishes the threat of physical force necessary to support the charge of third-degree robbery. Accordingly, the People must furnish additional proof, separate and apart from a defendant's statement, that would permit a rational fact finder to infer that a defendant was in actual possession of a dangerous instrument ( see Bello, 92 N.Y.2d at 526, 683 N.Y.S.2d 168, 705 N.E.2d 1209). To hold otherwise would blur the distinction created in the carefully calibrated statutory scheme between the lesser included offense of third-degree robbery, a class D non-violent felony ( see Penal Law § 160.05) and the aggravated charge of first-degree robbery, a class B violent felony ( see Penal Law §§ 160.15[3]; 70.02[1][a] ). Indeed, as we stated in Pena, it is the actual “ employment ” of a dangerous instrument that elevates the use or threat of physical force to first-degree robbery ( see 50 N.Y.2d at 408 n. 2, 429 N.Y.S.2d 410, 406 N.E.2d 1347 [emphasis in original] )."

So a defendant who provides a note to a bank teller indicating s/he has a weapon, but does not gesture or actually possess a weapon, may be guilty of Robbery in the Third Degree, but not Robbery in the First Degree.

Subdivision 4

Subdivision 4 requires that the defendant "display what appears to be a pistol, revolver (or other type of gun listed in the statute). The gun does not have to be operational, or even a real gun for a defendant to be charged with Robbery in the First Degree under this statute. In fact, the defendant may be holding his hand in his jacket in order to be charged under this statute. It is an affirmative defense that the gun is not "a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged." Thus, if your client is charged under this statute and the gun is inoperable, or a BB gun, there is insufficient proof of Robbery in the First Degree. But there is proof of Robbery in the Second Degree, 160.10(2)(b). There are the rare cases where you hope your client is caught with the gun, because if the gun is not found, and you do not have another defense, you may have to prove the affirmative defense to get the lesser charge.

Consecutive Sentences on Misdeameanors - Statutory Limitations on the Use of Probation to Extend the Sentence

2011-12-07T09:19:00.005-05:00

by
Janet C. Somes
Assistant Monroe County Public Defender

Jim's Eckert recently posted a column on consecutive sentences on misdemeanors (see). This post addresses an additional aspect of that issue

Sometimes courts try to extend a person's liability as far out as possible, and use probation on the second offense to do so by imposing a maximum sentence of a year or six months on one crime and imposing a probationary sentence on another. It is important for attorneys (and judges) to know that, in fact, it is impermissible to impose a probation sentence, where the court has imposed another sentence of over 60 days. In other words, a court may not use probation as a rider to extend a person's exposure where it is also imposing a sentence of more than 60 days.

Penal Law § 60.01(2)(d) provides that “[i]n any case where the court imposes a sentence of imprisonment not in excess of sixty days, for a misdemeanor . . . it may also impose a sentence of probation . . .” Even where sentences are imposed upon separate charges or counts, the provisions of Penal Law 60.01 (2)(d) apply to prohibit the imposition of a sentence of probation as to one charge, where a sentence of imprisonment in excess of the limits set forth therein (60 days for a misdemeanor) have been imposed on another charge (see People v Cerilli, 80 NY2d 1016 [1992][sentencing court’s imposition of probation, along with a term of incarceration on a separate charge in excess of that permitted under PL 60.01 (2)(d), prohibited]; People v Curkendall, 141 AD2d 891 [3d Dept 1988] [imposing sentence in excess of 60 days for misdemeanor and five year probation for felony did not comply with statutory proscriptions for sentencing on more than one crime]; People v Singh, 213 AD2d 568 [2d Dept 1995][impermissible to impose sentence of probation on one felony count and a sentence of imprisonment in excess of six months on another felony count - - appellate court vacated “split” and imposed the definite sentence only]; People v Bucci, 122 AD2d 562 [4th Dept 1986][sentencing defendant to intermittent incarceration in excess of four months on one charge, and probation on the other, prohibited]; People v McIntyre,135 AD2d 920 [3d Dept 1987] [sentencing defendant to incarceration in excess of six months for one felony count and probation on the other, prohibited]; People v Edwards, 108 AD2d 686 [2d Dept 1985] [sentencing defendant to incarceration in excess of 60 days for misdemeanor, and probation, prohibited]).

This prohibition applies even where crimes are unrelated, non-transactional and ordered to run concurrent or consecutive. The reason a court may not impose a concurrent sentence of probation on a defendant who is also sentenced to imprisonment on another charge is because probation is inappropriate for a defendant who is incarcerated as the basic purpose of probation is to provide supervision for an offender without removing him from the community (Cerilli, 80 NY2d 1016). And, a court may not impose a sentence of probation in any case, where a defendant has an undischarged sentence of incarceration of more than one year on a previous crime (Penal Law § 65.00 [1][b][iv]).

Consecutive Sentences on Misdemeanors

2011-12-02T10:42:00.002-05:00

by

James Eckert
Assistant Monroe County Public Defemder

I previously dealt with consecutive sentences, which are not permitted where a single act or omission represents two separate crimes, or where one offense also represents a material element of another Penal Law Section 70.25(2). In either case, the sentences on two such offenses must be concurrent. The only exception, permitting consecutive sentences, is for wearing a soft body vest under PL 270.20.

There is a broader prohibition in the case of misdemeanors, however. Penal Law 70.25(3) provides that where "consecutive definite sentences of imprisonment are not prohibited by subdivision two of this section [the rules mentioned above] and are imposed on a person for offenses which were committed as parts of a single incident or transaction, the aggregate terms of such sentences should not exceed one year."

"In any event, even assuming that consecutive definite sentences were authorized, such sentences could not total more than one year under Penal Law § 70.25(3). That statute provides that the aggregate of the terms of such sentences shall not exceed one year if the crimes were committed as parts of a “single incident or transaction”. The Legislature's use of that language, as well as the structure of the statute itself, makes it clear that “incident or transaction” is a broader concept than “act or omission” (see, Penal Law § 70.25[2], [3]; People v. Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 472 N.E.2d 29; cf., CPL 40.10[2] ). Regardless of whether defendant's crimes stem from distinct “acts”, they were not committed during separate “incidents or transactions” (compare, People v. Booth, 119 A.D.2d 758, 759, 501 N.Y.S.2d 166 with People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). There was only one foray onto the college campus, and only one encounter with the purveyor of stolen goods. Defendant's acquiescence in the court's erroneous assertion that there were “two crimes” or “events” does not waive the protection of Penal Law § 70.25(3) (People v. Lopez, supra; People v. Judkins, supra; People v. Pellegriti, supra ). Therefore, we modify the judgment by providing that the sentences run concurrently."

People v. Taylor, 197 A.D.2d 858, 859 (1993).

Even where there is an agreed-upon sentence which violates this subdivision, the illegal sentence is not enforceable:

"Defendant was convicted, upon a plea of guilty, of criminal trespass, second degree (Penal Law, § 140.15) and resisting arrest (Penal Law, § 205.30). He was sentenced to a one year term on each charge, to be served consecutively. The People claim that the sentence was a result of a plea bargain and that defendant waived his rights under the Penal Law (§ 70.25, subd. 3). While the offenses were not committed through a single act or omission and one offense does not constitute a material element of the other (Penal Law, § 70.25, subd. 2), they did arise from a single incident. Therefore, imposition of consecutive definite sentences aggregating more than one year was improper (Penal Law, § 70.25, subd. 3; People v. Silvagnio, 79 A.D.2d 1112, 435 N.Y.S.2d 866; People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). The waiver argument is without merit because the court does not have authority to enlarge its statutory sentencing power (People v. Selikoff, 35 N.Y.2d 227, 238, 360 N.Y.S.2d 623, 318 N.E.2d 784; People v. Lopez, 28 N.Y.2d 148, 320 N.Y.S.2d 235, 269 N.E.2d 28).
Accordingly we modify the sentence for resisting *951 arrest by directing that it run concurrently with the sentence for criminal trespass, second degree. Judgment unanimously modified on the law and as modified affirmed."

Due Process and SORA Risk Level Assesment

2011-11-20T22:20:00.003-05:00

In People v Hackett (2011 NY Slip Op 08061 [4th Dept 11/10/11]), the Appellate Division, Fourth Department, vacated defendant's risk level determination, and remitted the matter to County Court for a new risk level determination, where the assessment was based, in part, on factors that had neither been selected on the risk assessment instrument nor raised by the People at the hearing. The Court held that

the court violated his due process rights by sua sponte assessing those additional points. The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment (see § 168-n [3]; People v David W., 95 NY2d 130, 136-140). Here, neither risk factor was originally selected on the RAI or raised by the People at the SORA hearing, and defendant learned of the assessment of the additional points for the first time when the court issued its decision (cf. People v Wheeler, 59 AD3d 1007, lv denied 12 NY3d 711).

An Idea That Might Get Prosecutors To Stop Asking Defendants If The Prosecution Witnesses Lied

2011-11-20T21:06:00.010-05:00

Parents and teachers know you're more likely to achieve desired behaviors if there are consequences for disobedience. Appellate courts, when dealing with improper conduct by prosecutors, seem unaware of this simple rule. So they repeatedly criticize prosecutorial misconduct in appellate decisions which affirm the conviction. Then they wonder why trial attorneys persist in the behavior which resulted in the conviction and then the affirmance. For example, in People v Washington (2011 NY Slip Op 08404 [4th Dept [11/18/11]), the Court wrote that

Defendant contends that he was denied a fair trial based on the prosecutor's improper questions on cross-examination concerning whether the prosecution witnesses were lying or were liars. That contention is not preserved for our review inasmuch as defendant failed to object to those questions (see CPL 470.05 [2]), and we decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We note, however, that such questions were improper (see People v Paul, 229 AD2d 932; People v Paul, 212 AD2d 1020, 1021, lv denied 85 NY2d 912; People v Edwards, 167 AD2d 864, lv denied 77 NY2d 877). As this Court stated over 20 years ago, "[o]n numerous occasions, we have forcefully condemned prosecutorial cross-examination which compels a defendant to state that witnesses lied in their testimony" (People v Eldridge, 151 AD2d 966, 966, lv denied 74 NY2d 808). Unfortunately, we find it necessary once again to forcefully condemn such improper conduct by the prosecutor.

Perhaps if the Court, confronted by persistent misconduct, exercised its interest of justice jurisdiction and reversed, trial prosecutors would get the message and finally stop asking these improper questions. And if that seems too much, maybe the Court could deter the misconduct by simply naming in its decision the trial prosecutor who engaged in misconduct. The current practice of affirming while noting that the unnamed prosecutor acted improperly is a demonstrated failure at impacting behavior.

Are Calibration and Simulator Solution Certificates Used in Verifying the Accuracy of the Breathalyzer Test Testimonial?

2011-11-20T20:00:00.004-05:00

In Melendez-Diaz v Massachusetts (129 S.Ct. 2527 [2009]), the Supreme Court held that it violate the right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of a person who performed the test subject to confrontation. Thus, the admission at trial of three sworn “certificates of analysis” or affidavits showing the results of the forensic analysis performed on samples of the seized white powder was reversible error where the analyst did not testify. The Court rejected the ideas that the right to confrontation only applied when the evidence accused someone of a crime or didn’t apply to scientific tests, noting that crime labs have provided unreliable evidence in the past, and said that confrontation would help find the truth.

This year, in Bullcoming v New Mexico (564 U.S. __,131 S.Ct. 2705 [2011]), the Court held that under the confrontation clause “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.”

In People v Pealer (2011 NY Slip Op 08397 [4th Dept 11/18/11]) considered whether these holding apply to the calibration and simulator solution certificates used in verifying the accuracy of the breathalyzer test. The problems with the reliability and accuracy of such certificates was revealed in a 1987 Pennsylvania audit report (http://www.ridl.us/phpBB2/viewtopic.php?f=1&t=294). The Fourth Department rejected the contention that these documents were testimonial subject to the right to confrontation, holding that

the statements contained in the breath test documents are not accusatory in the sense that they do not establish an element of the crimes. Indeed, standing alone, the documents shed no light on defendant's guilt or innocence. The only relevant fact established by the documents is that the breath test instrument was functioning properly. The functionality of the machine, however, neither directly establishes an element of the crimes charged nor inculpates any particular individual. Thus, the government employees who prepared the records were “not defendant's accuser[s]' in any but the most attenuated sense”, and the breath test documents were properly admitted in evidence over defendant's objection based on the Confrontation Clause (internal citations omitted).

It should be noted that some local courts have held otherwise (People v Carreira, 27 Misc3d [Watertown City Ct 2010]; People v. Heyanka, 25 Misc3d 978 [Dist Ct Suffolk Co 2009]).

Fourth Department - In SORA Hearing, Addition of Points Sua Sponte Violates Due Process

2011-11-10T15:51:00.001-05:00

While the remedy was merely remand for a new hearing, this decision could prove important if it stops a court from assessing points at the SORA hearing. It's also an important reminder that SORA is a contested process where the People bear the burden.

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1236 KA 11-00285

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V
PATRICK HACKETT, DEFENDANT-APPELLANT.

WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (NORMAN P. EFFMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM OF COUNSEL), FOR RESPONDENT.

Appeal from an order of the Cattaraugus County Court (Larry M. Himelein, J.), dated January 25, 2010. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Cattaraugus County Court for further proceedings in accordance with the following Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.), defendant contends that County Court miscalculated his total risk factor score in the risk assessment instrument (RAI), and thus mistakenly determined that he was presumptively a level three risk based on that score. We agree with defendant. In fact, pursuant to the correct total risk factor score in the RAI, defendant is presumptively classified as a level two risk. We note, however, that the court also sua sponte assessed additional points under risk factor 3 (Number of Victims) and risk factor 4 (Duration of Offense Conduct with Victim) in the RAI, which then rendered defendant a presumptive level three risk. We further agree with defendant that the court violated his due process rights by sua sponte assessing those additional points. The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment (see § 168-n [3]; People v David W., 95 NY2d 130, 136-140). Here, neither risk factor was originally selected on the RAI or raised by the People at the SORA hearing, and defendant learned of the assessment of the additional points for the first time when the court issued its decision (cf. People v Wheeler, 59 AD3d 1007, lv denied 12 NY3d 711). We therefore reverse the order, vacate defendant’s risk level determination, and remit the matter to County Court for a new risk level determination, and a new hearing if necessary, in compliance with Correction Law §168-n (3) and defendant’s due process rights.

Decided November 10, 2011

Involuntary Deportation Is Not A Basis For Dismissal Of An Appeal To The Appellate Division

2011-10-25T19:41:00.003-04:00

In People v Ventura (2011 NY Slip Op 07475 [10/25/11]) the Court of Appeals held that it is an abuse of discretion for intermediate appellate courts to dismiss an appeal because of the involuntary deportation of the appellant. The Court explained that

courts have been inclined to dismiss appeals pursued by physically absent defendants because they voluntarily absconded, forfeiting their right to appeal. This Court has previously reasoned that "it [is] essential to any step, on behalf of a person charged with a felony after indictment found, that he should be in custody; either actual . . . or constructive" as "the whole theory of criminal proceedings is based upon the idea of the defendant being in the power, and under the control of the court, in his person" (People v Genet, 59 NY 80, 81 [1874]). Accordingly, dismissals have been predicated primarily on a policy-based rationale that courts should not aid in the deliberate evasion of justice through continued consideration of appeals...Here, this policy concern is not present. {Appellant;s] were involuntarily removed from the country and their extrication lacked the scornful or contemptuous traits that compel courts to dismiss appeals filed by those who elude criminal proceedings. Rather, they, and other similarly situated defendants, have a greater need to avail themselves of the appellate process in light of the tremendous ramifications of deportation...The invariable importance of the fundamental right to an appeal, as well as the distinct role assumed by the Appellate Divisions within New York's hierarchy of appellate review (see NY Const Art. 6, § 5; see e.g., CPLR 5501 [c]), makes access to intermediate appellate courts imperative...
Finally, in our view, the perceived inability to obey the mandate of the court is not implicated here. In other jurisdictions, defendants who continue prosecution of their appeals through representation of counsel are not deemed unavailable to obey the mandate of the court (see People v Puluc-Sique, 182 Cal App 4th 894, 899 [Ct App 2010]). Moreover, disposition of the discrete appellate issues would result in either an affirmance or outright dismissal of the convictions; neither outcome would require the continued legal participation of defendants.

Sealed Records Cannot Be Obtained Solely For Use In Pending Criminal Proceedings

2011-10-20T22:08:00.004-04:00

The sealing requirement of CPL 160.50 "was designed to lessen the adverse consequences of unsuccessful criminal prosecutions by limiting access to official records and papers in criminal proceedings which terminate in favor of the accused" http://www.blogger.com/img/blank.gif(Matter of Harper v Angiolillo, 89 NY2d 761, 766 [1997. The limited exceptions to the sealing requirement are to be strictly construed in accordance with this purpose.

In Matter of Albany County Dist. Attorney's Off. v William T. (2011 NY Slip Op 07339 [3d Dept 10/20/11]) the Appellate Division, Third Department reversed a County Court order which granted an ex parte application, made on behalf of the prosecutor and police department involved in a pending out of state prosecution, to unseal the records from a dismissed and sealed prior case for use in the pending criminal proceedings. The Court explained that

petitioner relied upon an exception that permits a law enforcement agency to obtain the release of sealed records if "justice requires that such records be made available to it" (CPL 160.50 [1] [d] [ii]). The Court of Appeals has clarified, however, that "[t]he statute's . . . primary focus is the unsealing of records for investigatory purposes" and, as such, the exception is analogous to other investigatory tools employed to uncover criminal conduct "prior to commencement of a criminal proceeding" (Matter of Katherine B. v Cataldo, 5 NY3d at 205 [emphasis added]). Apart from a "singular circumstance" not present here, the exception does not apply to a prosecutor — such as the Pennsylvania district attorney prosecuting respondent's case — seeking sealed records "after commencement of a criminal proceeding" (id.; see Matter of Akieba Mc., 72 AD3d 689, 690 [2010]; Preiser, 2005 Supp Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 160.50, 2011 Supp Pamphlet, at 125-126). A Pennsylvania police department also sought the records, but there is no indication that its "investigation" was in any way separate — at the time of the request — from the pending prosecution. Indeed, the only reasons given for seeking the records were for their admission at trial, as well as to assist in respondent's sentencing and evaluation for sex offender registration purposes.

Saying "I Have A Gun" Does Not Prove That One Has A Gun

2011-10-20T21:46:00.004-04:00

by
James Eckert, Assistant Monroe County Public Defender

Is a note saying "gimme all your money, I have a gun" legally sufficient to prove robbery while in actual possession of a firearm readily capable of causing death or other serious physical injury?

That is the question considered by the the Court of Appeals in, People v Grant (_NY3d_ [10/20/11) at (see). Grant dealt with a reduction based on Grand Jury minutes, wherein the only proof of the existence of a gun and its capacity to cause serious physical injury or death was a note threatening the bank teller, saying that the defendant had a gun and if she didn't give him the money he'd shoot. We're not talking trial proof. Four judges of the Court of Appeals held that a note saying the defendant had a gun was not prima facie evidence of the actual existence and possession of a gun readily capable of shooting anyone.
First degree robbery, subdivision three, requires that defendant "actually possessed a dangerous instrument at the time of the crime". PL 160.15(3) reads "uses or threatens the immediate use of a dangerous instrument". It is subdivision four which allows a robbery conviction for possession of a finger, if that finger "appears to be a pistol, revolver ...". Subdivision three has been held to require an actually existing weapon (People v Pena, 50 NY2d 400 [1980]). In Pena, defendant had a paper bag over his hand and threatened to shoot. When apprehended shortly after, Pena had the bag, which contained a knife. The Court of Appeals ruled that under subdivision three "it was the employment of such an instrumentality that was significant" (Pena, footnote 2). The Court held that the proof showed that Pena had a knife at the time of the robbery and that he used that knife to threaten the victim. Apparently, nobody understood how knives worked back in 1980.

Nonetheless, as the majority noted in Grant, all four departments interpreted Pena to mean that a defendant, under 160.15(3), had to actually possess an actual weapon. A mere threat to harm someone with a weapon is not sufficient. Thus, the defendant's statement that he has a gun, without other proof of actual possession, is insufficient to prove the existence of such a gun. "Absent some other corroboration that defendant actually possessed a dangerous instrument" the grand jury could not rationally have drawn the guilty inference. The dissenters were prepared to hold that actual possession was not required, except the prosecution abandoned that position on appeal! Nonetheless, the dissent would have held that defendant's "admission" (I'd call it a mere claim coupled with ample incentive to lie) was sufficient to prove the fact admitted. Further, the dissent would have held that the defendant's threat to shoot was sufficient proof of operability which would have, if unexplained and uncontradicted, permitted a jury to convict (effectively shifting the burden to the defense). The dissent was willing to admit that some threats could be too vague to sustain the grand jury, much less a conviction (e.g. "if you don't keep your dogs quiet I'm going to destroy the earth" might be insufficient to prove possession of a fully operational Death Star).

The Grant decision has application beyond robbery first under subdivision three. If the defendant's admission of a fact is, without more, insufficient proof of that fact even at Grand Jury, then we should be looking for and challenging the absence of corroboration in other areas.

Weight Of Evidence Review Must Be Manifest In Appellate Division Decision

2011-10-13T20:19:00.002-04:00

When an appellant urges that the weight of the credible evidence does not support the conviction, the decision of the intermediate appellate court must reflect that the court exercised its authority, sitting like a thirteenth juror, to assess http://www.blogger.com/img/blank.gifwhether the evidence supports the conviction. Thus, in People v Brown (2011 NY Slip Op 07146 [10/13/11]), where the order of that Appellate Division manifested a lack of application of that review power, the Court of Appeals reversed a conviction and remitted for a proper assessment of the weight of the evidence

Double Jeopardy and the Princess Bride

2011-10-10T20:07:00.004-04:00

Among the many important life lessons set forth in The Princess Bride is the distinction between dead and mostly dead:

Miracle Max: It just so happens that your friend here is only mostly dead. There's a big difference between mostly dead and all dead. Mostly dead is slightly alive. With all dead, well, with all dead there's usually only one thing you can do.
Inigo Montoya: What's that?
Miracle Max: Go through his clothes and look for loose change.

As the decision of the Appellate Division, Fourth Department, in People v Sanders (2011 NY Slip Op 07100 [4th Dept 10/7/11]) shows, that distinction parallels the distinction between a void conviction and a voidable one. One is as though it never was. And the other, invalidly obtained is still slightly alive.

In Sanders, the Court considered the application of the double jeopardy protections to a voidable conviction. Upon Mr. Sanders' convictions for Criminally Negligent Homicide and Assault the People sought persistent felony offender status for defendant based, in part, on his 2003 assault conviction. Sanders opposed persistent felony offender status on grounds that his 2003 guilty plea was to a charge not contained in the felony complaint and not a lesser included offense, and that his right to be indicted by a grand jury had thus been violated . The court agreed with defendant, finding "that the [*2]defendant's conviction . . . in 2003 was jurisdictionally defective and a nullity and cannot be counted in determining that he is a persistent felony offender" (People v Sanders, 24 Misc 3d 1232[A], 2009 NY Slip Op 51693[U], *2).

While the 2003 conviction was jurisdictionally defective and voidable, Sanders never moved to vacate it. Despite the fact that the 2003 conviction had never been vacated, the People proceeded to present evidence of the assault upon that conviction was based to a grand jury and obtained an indictment charging Sanders with assault in the first degree based upon the same incident for which he had pleaded guilty to assault in the second degree in 2003. The County Court granted Sanders' motion to dismiss on double jeopardy grounds, since the 2003 conviction had not been vacated. The People appealed and the Appellate Division, Fourth Department affirmed even though the 2003 conviction was based on a jurisdictionally defective SCI. Relying on Matter of Campbell v Pesce (60 NY2d 165), the Court held that

Although the constitutional Double Jeopardy Clauses do not bar a second prosecution where the prior judgment of conviction has been vacated upon the defendant's motion or appeal because of an error in the proceedings (see Lockhart v Nelson, 488 US 33, 38; United States v Tateo, 377 US 463, 465-467), the 2003 judgment of conviction has never been vacated. The judgment of conviction is still on defendant's criminal record and would presumably remain on his record even if he were convicted in the instant prosecution. We do not see how there can be two separate convictions on defendant's record for the same offense without implicating the constitutional prohibition against double jeopardy.

Just Because Parker Warnings Were Given Doesn't Mean Trial Can Proceed In Absentia

2011-09-30T19:53:00.005-04:00

In reversing a conviction after a trial held in absentia, the Fourth Department, in People v Houghtaling (4th Dept 9/30/11), explained

that County Court erred in conducting the trial in his absence. Even assuming, arguendo, that the court advised defendant of the scheduled trial date and warned him that the trial would proceed in his absence if he failed to appear (see generally People v Parker, 57 NY2d 136, 141), we conclude that the court failed to inquire into defendant’s absence and to recite “on the record the facts and reasons it relied upon in determining that defendant’s absence was deliberate” (People v Brooks, 75 NY2d 898, 899, mot to amend remittitur granted 76 NY2d 746; see People v Dugan, 210 AD2d 971, 972, lv denied 85 NY2d 972).

One Can't Waive Indictment After Being Indicted

2011-09-30T19:36:00.002-04:00

In People v Spencer (4th Dept 9/30/11) the Appellate Division, Fourth Department, reversed a conviction and vacated a Superior Court Information (SCI) where the defendant pled guilty pursuant to a SCI after he was indicted for a crime arising from the same incident. As the Court explained the

waiver of indictment was invalid inasmuch as there is no evidence in the record before us that a local criminal court held him over for the action of a grand jury on the charges in the superior court information (SCI). Defendant is correct that his contention “is a jurisdictional one which survives his appeal waiver and guilty plea”
(People v Dennis, 66 AD3d 1058, 1058; see People v Boston, 75 NY2d 585, 589 n), and we agree with defendant that his contention has merit. As the record establishes, at the time defendant waived indictment and consented to be prosecuted by an SCI, he had already been indicted on the burglary charges, which arose from the same incident. Consequently, we agree with defendant that, “[g]iven the objective and the plain language of CPL 195.10 (2) (b), the conclusion is inescapable that waiver cannot be accomplished after indictment, as was the case here, even where it is the defendant who orchestrates the scenario” (Boston, 75 NY2d at 589). We therefore reverse the judgment in appeal No. 2, vacate the sentence imposed, and dismiss the SCI.

Frank Sterling and the Denial of a Motion for DNA Testing

2011-09-30T18:19:00.002-04:00

In an earlier post today, I wrote about Mark Christie pled guilty this week to the murder for which an innocent man, Frank Sterling, had served 18 years in prison, prior to his exoneration (see). As I discussed, one of the many reasons it took so long to establish Frank Sterling's actual innocence is that the trial court denied a motion pursuant to CPL 440.30(1-a), for DNA testing. Then, compounding the problem, the Appellate Division, Fourth Department affirmed this ruling (37 AD3d 1158[4th Dept 2007]), denying the innocent Mr. Sterling access to the evidence which, when eventually obtained, helped prove his innocence.

So it was kind of shocking to see that in People v Woodrich (4th dept 9/30/11) the Appellate Division, Fourth Department, cited its decision in Sterling as the authority for rejection another inmates' motion for DNA testing:

County Court properly denied the motion “because defendant failed to establish that there was a reasonable probability that, had those items been tested [further] and had the results been admitted at trial, the verdict would have been more favorable to defendant” (People v Sterling, 37 AD3d 1158).

Leave To Appeal Generally Required to Challenge Restitution Order

2011-09-30T18:02:00.003-04:00

The Appellate Division, Fourth Department, in People v LaVilla (4th Dept 8/30/11) has again held that an exception to the general rule that cannot be appealed as of right is when the restitution hearing was bifurcated from sentencing:

“[a]s a general rule, a defendant may not appeal as of right from a restitution order in a criminal case . . . Here, however, [County C]ourt bifurcated the sentencing proceeding by severing the issue of restitution for a separate hearing, and thus ‘defendant may properly appeal as of right from both the judgment of conviction . . . and the sentence as amended . . ., directing payment of restitution . . ., [with] no need to seek leave to appeal from [the] order of restitution’ ” (People v Brusie, 70 AD3d 1395, 1396).

Wrongful Convictions and the Exclusion of Expert Testimony on False Confessions

2011-09-30T17:24:00.009-04:00

The headline in today's Rochester Democrat and Chronicle was that Mark Christie had pled guilty to the 1988 murder of Viola Manville. This plea follows the April 28, 2010 vacateur of the 1992 Monroe County murder conviction of Frank Sterling for that very murder. (For a detailed account of the Frank Sterling case, see).

As was the case with such other wrongful conviction exonerations in which the Fourth Department had affirmed the wrongful convictions, such as that of Freddie Peacock, Douglas Warney, and Betty Tyson, the primary evidence against Mr. Sterling was a false confession.

Additionally, since 1992 there was evidence that Mark Christie had accurately confessed to the murder for which Mr. Sterling was charged. And yet after Mr. Sterling was convicted, the court refused to even hold a hearing on a 330 motion based on the evidence of Mr. Christie's admissions. And then the Appellate Division, Fourth Department affirmed the conviction (209 AD2d 1006 [4th Dept 1994]), rejecting arguments that the confession was unreliable and that a hearing should have been ordered.

When more witnesses came forward with evidence that Christie had committed the murder a 440 motion was filed and denied. Again, the Appellate Division, Fourth Department affirmed the ruling denying the innocent Mr. Sterling a new trial (267 AD2d 1053 [4th Dept 1999]).

Mr. Sterling then moved, pursuant to CPL 440.30(1-a, for DNA testing. This motion was denied (6 Misc3d 712 [Mon Co 2004]), on a finding that "the defendant has failed to demonstrate that a reasonable probability exists that a more favorable outcome at trial would have been forthcoming had the results of any DNA testing of the http://www.blogger.com/img/blank.gifaforementioned items been introduced at his trial." The Appellate Division, Fourth Department affirmed the ruling denying the innocent Mr. Sterling access to the evidence which would eventually help prove his innocence (37 AD3d 1158[4th Dept 2007]).

Ultimately, despite these court rulings, testing was done and Mr. Sterling's innocence was established. The courts' reliance on a false confession after a twelve hour interrogation, of which only 20 minutes were recorded, led to the repeated affirmance of a wrongful conviction. As a result, Mr. Sterling was in prison for 18 years for murder he did not commit.

False confessions are present in about a quarter of the wrongful convictions exonerated by DNA evidence (see). Clearly, not just juries, but appellate courts, have difficulty recognizing and distinguishing false confessions from reliable one. Yet, in People v Walker (4th Dept 9/30/11)) the Court held that a trial court

did not err in refusing defendant’s request to allow defendant to present the testimony of a false confessions expert. It is well established that the admissibility of expert testimony is addressed primarily to the sound discretion of the trial court (see People v Cronin, 60 NY2d 430, 433), and here we conclude that the court properly determined that the expert did not possess a professional or technical knowledge that was beyond the ken of the average juror (see People v Hicks, 2 NY3d 75).

By not requiring the admission of such testimony or the giving of an adverse inference instruction regarding the failure to record interrogations (see) the Court is insuring that future juries will credit statements obtained after unrecorded interrogations in future cases, sometimes from innocent defendants..

New Website and Online Forum for Rochester Area Criminal Defense Attorneys

2011-09-21T20:15:00.003-04:00

The Monroe County Public Defender's Office has introduced a new website (see) which, in part, contains links to some of that office's excellent training materials (see) and to numerous helpful articles on aspects of New York criminal law authored by Jim Eckert (see), a frequent contributor to this blog.Additionally, the website is a portal to the "Defender Discussion Forum".

The forum, is a bulletin board that will allow defense attorneys (criminal and family court) to post topics on issues of concern to the defense community, seek advice on any issues they may have, or help other attorneys with advice on problems or issues. In addition to an area where defense attorneys can assist one another in resolving issues or addressing common concerns, the forum will be a place for posting helpful information such as CLE materials for CLEs conducted by the Monroe County Public Defender's Office.The forum contains multiple subject areas (moderated by experienced attorneys) relevant to representing persons in the criminal and family courts of Monroe County.

The forum is not a listserv. In order for an attorney to see the posts on the forum, read responses, download documents, or post to the forum one must sign-on to the forum. Posts will not be automatically emailed to particpants unless one chooses that as an option. (To have posts emailed to you automatically, you must "subscribe" to the sub-forum in which you wish to receive posts by email. To do this, go to the Forum, select a sub-forum [e.g., "Discovery"] you would like to subscribe to and look in the lower right hand side of the forum page, just above "Jump to box" and click "Subscribe Forum". If you ever want to stop getting the emails, go back and click "unsubscribe forum".)

In order to have access to the Defender Discussion Forum, one must first register for a name and password. If you are a defense attorney who practices in the criminal courts and/or family courts of the greater Rochester area you are welcome to join. To register, please go to the Monroe County Public Defender website here.Click on "Legal Information" and "Defender Discussion Forum". You will then be taken to a sign-on screen where you can begin the registration process. You will be asked to supply a username, password, and email address. Once you have registered, you may be contacted by the board administrator, prior to your registration being approved, for additional information to confirm that you are a member of the assigned counsel program (criminal or family court), an employee of an institutional defender office, or an attorney in private practice who represents persons in the criminal and/or family courts in the greater Rochester area. This information will not be shared with anyone. (Should you have any problems registering with the Forum, please feel free to contact our Forum administrator, Jim Eckert at jeckert@monroecounty.gov.

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Leave Applications Must Raise All Federal Issues Raised on Appeal

2011-09-16T20:42:00.002-04:00

Appellate attorneys in drafting an application for leave to appeal the New York Court of Appeals want to highlight the issue or issues most likely to be deemed worth y of the attention of that Court. As former Clerk of the Court, Stuart Cohen explained the issues most likely to warrant a grant of leave toappeal are:

1. Those on which the judicial departments of the Appellate Divisionhave split;2. Those presenting questions of widespread, statewide impact or offirst impression;3. Those involving recent U. S Supreme Court decisions and how theyare to be applied in New York (e.g., should New York adopt a differentrule under the State Constitution, under which it may give greater rights than those given under the Federal Constitution);4. Those possibly determined erroneously in a published writing at the intermediate appellate court, which may mislead other courts, the bar and the public;5. Those involving construction of new statutory schemes.

Thus, those are the types of issues that should be emphasized in drafting a leave application. But it is poor lawyering and harmful to one's clients to only include such issues in the application. Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.Interpreting this exhaustion requirement, the United States Supreme Court in O’Sullivan v Boerckel (526 U.S. 838 [1999]) held that a prisoner who fails to present his claims in a petition for discretionary review to a state court of last resort has not properly presented his claims to the state courts. Thus, to insure that all federal issues raised on appeal can be considered in a federal habeas proceeding counsel must include them in the leave application. In Harris v Fischer (I2d Cir 9/9/110 (see) the Court of Appeals for the Second Circuit reviewed a District Court (Telesca,J.) holding that the petitioner had procedurally defaulted his claim because he insufficiently alerted the Court of Appeals to the claim in his letter application. In finding that the District Court had erred the Court explained

We have previously held that if a defendant's leave application presents his claims in such a way that "eliminate[s] issues as to which review had been expressly requested," Morgan v. Bennett, 204 F.3d 360, 371 (2d Cir.), cert. denied, 531 U.S. 819 (2000), those issues are procedurally defaulted and cannot be asserted in a subsequent federal habeas petition. On the other hand, if a defendant's leave application "clearly state[s] that he [is] pressing all of the claims raised in [an] attached [Appellate Division] brief," the Court of Appeals is considered to have been fairly apprised of all of those claims. Jordan v. Lefevre, 206 F.3d 196, 199 (2d Cir. 2000). We have found such a clear statement within a leave application that briefly but "expressly `request[ed] this Court to consider and review all issues outlined in defendant-appellant's [attached] brief.'" Morgan, 204 F.3d at 370-71 (citing defendant's letter application).In this case, Harris's leave application to the New York State Court of Appeals discussed only his Brady and fair-trial claims in detail, but concluded with a request that "this Court consider and review all issues outlined in appellant's [Appellate Division] brief." (Appellant App. 135). Although Harris had discussed one section of the brief at length in his letter, he unambiguously stated that he wished to press "all" of the issues he had presented to the Fourth Department, including his affirmative defense claim.

Some More Thoughts on Alibi Cases

2011-09-08T22:09:00.004-04:00

Jill Paperno's post on alibi cases (see), has provoked these additional thoughts about the subject by two of her colleagues at he Monroe County Public Defender's Office:

Comments on SOME THOUGHTS ON ALIBI CASES
By David Juergens
Assistant Monroe County Public Defender

CPL 250.20 (1) requires the People to serve their demand for notice of alibi “not more than twenty days after arraignment.” Often, the People attempt to satisfy this statutory requirement by adding a boilerplate paragraph to their CPL 710 notice (attached to the indictment).
A defense attorney may wish to challenge the facial sufficiency of the People’s demand for notice of alibi, arguing that the People’s “demand” is defective on its face for lack of specificity. Typically, no date, time or place for the alleged crime(s) will be set forth in the “demand” paragraph itself. Therefore, to the extent that the indictment itself also lacks specificity as to date, time or place, the People have failed to provide facts that are essential for the establishment of an alibi defense (i.e., “that at the time of the commission of the crime charged [the defendant] was at some place or places other than the scene of the crime” (CPL 250.20 [1]).
If the People supply the missing information in a Bill of Particulars, you can argue that the People must nevertheless renew their demand for notice of alibi (which triggers a new eight-day service period for the defense). If the Bill of Particulars is served more than twenty days after arraignment, the demand for notice of alibi (even if renewed) is untimely. Whenever the People argue for strict compliance with the requirements of CPL 250.20, it should be argued, if possible, that the People themselves did not comply with the statute. Stated simply, boilerplate demands are insufficient to trigger the defendant’s statutory obligation to provide the People with a list of alibi witnesses.
The lack of specificity problem becomes even more acute where the defendant would admit to being at the crime scene at some point during the date(s) alleged in the indictment. For example, where the People specify the date, but not the time for an alleged crime, and the defendant undoubtedly was present at the scene of the crime on the same date, the defendant is not in a position to serve a specific “notice of alibi’ in response to the People’s vague demand. If the defendant was present at the scene of the crime during the only time period specified by the prosecution (a certain date), he cannot be expected to file a “notice of alibi.”

By James Eckert
Assistant Monroe County Public Defender

If the prosecution was permitted to demand an alibi for all the time covered by their non-specific allegations, they would benefit from their own vagueness. On the other hand, if the defendant were excused from serving a notice of alibi if he was at the scene of the crime during some part of the DA's vast time period, then the incentives would be properly balanced, it seems to me. If you want a notice of alibi for when something took place, tell us when it took place. You can't say "March, 2007" and expect the defendant to account for his whereabouts for the entire month, and then preclude him from putting on alibi evidence for a specific date and time during March when that date and time become important.
If the prosecution cannot specify when their crime took place, they have to take the bad with the good. If a defendant was present at the scene of the crime during any part of the People's allegation, then I think he ought to be relieved from serving a notice of alibi (serving a notice is much safer, I'd make this argument when you find yourself in extremis).

SOME THOUGHTS ON ALIBI CASES

2011-09-07T19:32:00.001-04:00

by
Jill Paperno
Second Assistant Monroe County Publiv Defender

Every now and then, we as defense attorneys are confronted with the possibility, and perhaps the necessity, of introducing evidence of alibi (at the time of the commission of the crime charged the defendant was at some place or places other than the scene of the crime). For most of us, our initial inclination is to run for cover. But in that rare case where alibi is the defense of choice, defense counsel has to know the law, investigate and prepare well. (Wait- isn’t that what we’re supposed to do in all cases?)

FIRST – WHAT TO DO WHEN THE INFORMATION IS PRESENTED TO YOU

If you are informed by your client or other people – perhaps family members or friends – that your client could not have been present at the time of the incident because he or she was some other place, think like a cop or prosecutor – what are the holes in the story? Are there things that don’t make sense? Can you prove the alibi?

In this age of technology, you may be able to prove an alibi with documents generated as a result of purchases, travel or even internet usage. (Uh-oh – make sure you are not generating other charges.) Or you may be able to obtain video recordings from cameras monitoring businesses or even street corners. For much of this kind of proof, time is of the essence. So if you learn of a possible alibi, get an investigator and get moving. Begin to accumulate any evidence there may be – receipts, travel documents, etc. When you acquire the documents, make sure you preserve them in a way that you can retrieve them later for trial, and establish a chain of custody.

TO TELL OR NOT TO TELL?

Do you let the prosecutor know of your alibi early in the case before it is statutorily required? It depends on the quality of the alibi, the prosecutor, and the policies of the prosecutor’s office. Although CPL 250.20 requires notice to the prosecutor within eight days of the receipt of a prosecutor’s demand for notice of alibi (and this will be discussed further below), what do you do if you know you have an alibi before indictment? The 250.20 requirement does not come into play until there is an indictment. So you have to judge whether you are likely to head off the moving train by presenting the information to the prosecutor, or if you will just be giving away your defense before you have your witnesses prepared to deal with prosecutor witnesses.
In a case I recently handled, I presented the information to the prosecutor within three days of the arraignment of my client in City Court on a felony complaint. Unfortunately, that meant nothing in terms of getting the prosecution to question the quality of the proof in the case.

GRAND JURY?

Although you may choose to request that the alibi witnesses be heard by the grand jury, consider this option carefully. If the prosecutor is unlikely to seek dismissal based on an alibi, will that influence how the grand jury hears the witnesses? Will presentation of the witnesses create inconsistencies for use by the prosecutor later in the case, even if the witnesses are telling the truth?

250.20 AND THE STATUTORY PERIOD

You are required to serve notice after indictment, within eight days of when you receive a request for notice from the prosecution. Take a look at the 710.30 notice that comes attached to indictments – at least in Monroe County- even when there are no statements or ID witnesses. Guess what – there’s a request for notice of alibi! So it is likely that you are going to receive the request, at least on a felony charge, at the arraignment on the felony.

But what if you do not know whether you have an alibi defense at that stage – perhaps you are still investigating, or perhaps you do not learn of it until later in the case? The statute provides a court with discretion to extend the period for alibi notice. I will sometimes advise a court that I am exploring a defense and ask for an extension of time. (But rarely, since it’s rare that I would consider such a defense.)

In People v. Mensche, 276 AD2d 834, the Fourth Department stated:

Although the trial court has the discretion to extend the period in which the defendant must file and serve his notice of alibi, an application for such an extension may be denied where the defendant does not appropriately demonstrate good cause for the delay ( see, People v. Fax, 232 A.D.2d 734, 736, 665 N.Y.S.2d 684, lv. denied 89 N.Y.2d 942, 655 N.Y.S.2d 893, 678 N.E.2d 506; People v. Davis, 193 A.D.2d 885, 886-887, 597 N.Y.S.2d 780, lv. denied 82 N.Y.2d 716, 602 N.Y.S.2d 813, 622 N.E.2d 314). Although the late entry of defense counsel into the case may provide the required reasonable excuse for delay in service of the notice of alibi ( see, People v. Davis, supra ), here, the tardiness of the notice of alibi prejudiced the People's ability to adequately investigate defendant's claims prior to trial. Further, the tardiness of the service of the notice of alibi was not cured when defendant renewed his application to present the alibi witnesses based upon his contention that the People had, in fact, interviewed those witnesses, since County Court properly found the notice facially inadequate because it failed to advise the People of the places at which defendant claimed to be at the time of the commission of the crimes, hampering the People's opportunity to thoroughly investigate defendant's claim. Accordingly, County Court's denial of defendant's application to present alibi witnesses was not an abuse of discretion.

If the prosecutor somehow does not serve you with a request pursuant to CPL 250.20(1), it seems there is no obligation to notify. But I’ve never had a felony case without a request, and I’m not sure of how confident I would be that a trial judge would find the lack of request precluded an obligation on my part. Tricky question.

If you fail to serve the notice within the statutory period, argue to the Court that your client has a right to present a defense as protected by the New York State and United States Constitutions, as well as rights to due process and a fair trial also protected by the Constitutions. You may lose, but there are times that the constitutional rights will trump statutory requirements (though not always). See, e.g. Davis v. Alaska, 415 US 308.

If the prosecution intends to offer rebuttal witnesses, it must serve you with notice (CPL 250.20(2). But they get up to ten days before trial. The statute contains a continuing obligation to provide additional witnesses (CPL 250.20[3]).

If you are serving a 250.20 notice, consider what you are statutorily required to offer in the notice. You must include the place or places the defendant claims to have been at the time, and the names, residential addresses, places of employment and those addresses for all witnesses. Strangely, you do not have to include phone numbers. Or e-mail addresses. Or what your client was doing at the time.

DAWSON

In People v. Dawson 50 NY2d 311 the Court of Appeals found that there was no per se due process prohibition against questioning alibi witnesses as to why they did not come forward earlier. The Court set forth a foundation that could be used by the prosecutor prior to questioning the witnesses, stating, in footnote 4,

In most cases, the District Attorney may lay a “proper foundation” for this type of cross-examination by first demonstrating that the witness was aware of the nature of the charges pending against the defendant, had reason to recognize that he possessed exculpatory information, had a reasonable motive for acting to exonerate the defendant and, finally, was familiar with the means to make such information available to law enforcement authorities.

But the Court also recognized that there are times a witness may choose not to come forward to inform the police of an alibi. One of those times may be if defense counsel advises them not to. So consider whether, if you are aware of the witnesses within a short time of the offense, you want your witnesses coming forward early in the case. If you advise them not to, argue that the prosecutor should not be permitted to question them about not coming forward, citing Dawson. If your witnesses have not come forward early in the case for other reasons, consider whether, under Dawson, those reasons should bar questioning about failure to come forward.

You should be aware that if the witnesses did not come forward early in the case, and the prosecution is permitted to question on it, or the Dawson considerations lead the Court to believe it’s fair to instruct on it, the alibi instruction does contain a paragraph that permits a jury to draw a negative inference.

WITNESSES WHO DO COME FORWARD

Occasionally, witnesses do come forward to the police, and if your client has still been charged, either they were deemed incredible by the police, or the police just didn’t care enough to consider whether what they had to say was the truth.

If the prosecutor gets to ask about failure to promptly come forward, shouldn’t we be able to establish that the witnesses did come forward? If you believe you may face objections about hearsay and bolstering if you try to elicit the prompt disclosure of the alibi to authorities, consider making an argument that due process, as protected by the New York State and United States Constitutions, entitles you to present this evidence. Here’s the argument you may want to include in any moving papers:

The defense will be presenting alibi evidence in Mr. Smith’s case. On (date), the date that Mr. Smith was arrested, Investigator Jones took Mr. Smith’s statement, in which Mr. Smith stated he was in (location) at the time of the crime. He told the investigator who he was with. The investigator failed to follow up on the information.

As this Court is aware, if an alibi witness fails to come forward prior to trial, or early in a case, under some circumstances a jury is read a jury instruction which permits an adverse inference, stating when applicable, “You may, however, consider the witness’ failure to come forward with such information earlier than he/she did only insofar as that failure is inconsistent with his/her alibi testimony at this trial, and casts doubt upon the truthfulness of that testimony.” The instruction cites to People v. Dawson, 50 NY2d 311. In Dawson, the Court recognized that “the failure to speak up at a time when it would be natural to do so might well cast doubt upon the veracity of the witness’s exculpatory statements at trial. In effect, in these situations, the witness’ previous silence is a form of conduct that may be analogized to a ‘prior inconsistent statement’ by the witness. As has been observed by one noted commentator, ‘(a) failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the nonexistence of the fact…There may be explanations, indicating that the person had in truth no belief of that tenor; but the conduct is ‘prima facie’ an inconsistency’ (cite omitted). And, of course, it is well established that an inconsistency in a witness’ prior conduct or statements maybe used as a means of impeaching his testimony at trial (cite omitted).”

It is defendant’s contention that if the prosecution may elicit testimony in alibi cases concerning witnesses who have not come forward, and an adverse inference is permitted when there is a failure of the witness to come forward early in the case (and the foundational requirements of Dawson have been met), then Mr. Smith’s due process rights as protected by the New York State and United States constitutions require that the defense be permitted to introduce testimony that the alibi information was provided on the date of defendant’s arrest by (the witness), and was available to the police from that date on. In other words, if it may be held against a defendant if an alibi witness does not come forward early, then it should be permissible for the defense to introduce testimony that a witness did.

If the prosecutor does not call the witnesses and give the defendant an opportunity to establish that the witnesses were available and that they attempted to “come forward” on the first date they learned of Mr. Smith’s charges –the date of his arrest, then the jury may be left with the questions anticipated by the Court in Dawson - why would his then-girlfriend not come forward? Is there something unbelievable about this account? Whether or not the jury is given an instruction about failure to come forward, the natural inclination to speculate about a failure to come forward when it would have been natural to do so might operate against Mr. Smith.

The right to introduce evidence of a witness coming forward in order to dispel jury speculation is permitted the prosecution under other circumstances. In sex offense cases, a prosecutor is permitted to introduce evidence of prompt complaint. One of the reasons prompt outcry is permitted was noted by the Court of Appeals in People v. McDaniel 81 NY2d 10. The Court stated, “(t)he contemporary rationale for permitting prompt outcry evidence is that some jurors would inevitably doubt the veracity of a victim who failed to promptly complain of a sexual assault, such conduct being “natural” for an “outraged female (cites omitted).” Although recent studies have suggested that it may not be unusual for a rape victim to withhold complaint ( cites omitted ), the admissibility of prompt outcry remains viable because ‘our judicial process cannot remove from every juror all subtle biases or illogical views of the world. The fresh-complaint rule responds to those jurors on their own terms.’ ( cite omitted.)” 81 NY 2d at 16-17.

Thus, both McDaniel and Dawson recognize the potential harm that may arise from jury speculation about a lack of evidence on a topic in which witnesses might be expected to behave differently. Defendant respectfully submits that pursuant to his rights to Due Process as protected by the New York State and United States Constitutions, he is entitled to elicit testimony that the witness provided alibi information to the police on the date Mr. Smith was arrested, and that witness information was made available to the police on that date, but was not investigated.

THE ALIBI INSTRUCTION

The current alibi instruction is found on the Office of Court Administration website (as are the other jury charges generally used by trial judges). http://www.nycourts.gov/cji/

As with all jury instructions, you should read them well before your trial. It seems to me that the current jury instruction does not necessarily comport with the requirement of People v. Victor, 62 NY2d 374, which requires that the trial court unequivocally instruct the jury that the alibi must be disproven beyond a reasonable doubt. (How awesome is that?) But the current instruction does not require that language. At least one person agrees with me that the instruction does not comport with Victor, as that issue was raised (and lost by the defense) before the Court of Appeals this year in People v. Melendez 16 NY3d 869. The Court found that the objection to the instruction was not preserved. The Court also pointed out that the instruction had recently been changed, so it seems this may be a basis to either get the instruction or to preserve an issue for appeal.

ALIBI AND IDENTIFICATION

In an alibi case, you are also challenging the identification of your client. All of the issues that come into play in an ID case are therefore present in the alibi trial. Make sure you are familiar with the current state of the law on identification, as well as issues relating to how ID procedures are conducted, experts on ID, and the expanded identification jury charge contained on the jury charge website. (Consider looking at the recent New Jersey case, State v. Larry Robinson, decided by the New Jersey Supreme Court on August 24th, as well as the New York State Justice Task Force report, “Recommendations for Improving Eyewitness Identifications”. (Consider asking for an ID charge before the witnesses testify, or perhaps a cross-racial ID charge before they testify and at the end of the case.)

Court of Appeals to Determine Whether the Defendant or the Attorney Decides to Have the Jury Consider a Lesser Included Offense

2011-08-24T22:15:00.007-04:00

As detailed in a post last Fall (see) in People v Colville (79 AD3d 189 [2nd Dept 2010]) the Second Department, without reaching a decision on the issue, engaged in detailed review of the arguments as to whether the decision to submit a lesser included offense is a fundamental one that must be made by the defendant or is a strategic one that can be made by counsel. The Colville court noted that courts have split on this issue, which has not yet been addressed by the New York Court of Appeals. That might be changing as Judge Read has granted the appellant in Colville leave to appeal to the Court if Appeals. Hopefully, this means that New York attorneys might soon obtain an answer to this important and recurring question.

A Few Thoughts on Sentencing

2011-08-21T13:56:00.001-04:00

by
Jill Paperno
Second Assistant Monroe County Public Defender

Plea and sentence negotiations are a part of our practice that requires social skills, strategy, and yes, a knowledge of the sentencing laws. If a client is facing a much higher sentence, maybe the deal on the table is a good one. But if they're not, it may not be. Very often DAs and judges are not familiar with the details of the sentencing laws and might, out of lack of familiarity, misstate the sentence exposure your client faces. We have to know what the possible sentences are in a case before we walk into the conference. But unfortunately, the sentencing statutes are dense and poorly written. But we still have to know them. There are some common errors defense attorneys make that I'd like to address broadly. Remember - it's always important to read the applicable statutes - after all these years all the experienced attorneys I know review them time and time again. And for some of these statutes, the practice commentaries and cases interpreting the statutes are a must-read as well.

Persistent offender statutes
Prosecutors often enjoy raising the specter of persistent felony sentencing if a defendant does not accept a lousy offer.

There are two kinds of persistent felony sentencing statutes - the persistent felony offender statute and the persistent violent felony offender statute. Each one elevates the minimum sentence a defendant may receive, and makes the maximum sentence life. But there are important distinctions between the two.

Persistent violent felony offender

Penal Law Section 70.08 addresses persistent violent felony offender sentencing. The procedure a court must use in determining whether a defendant should be subjected to such sentencing is contained in CPL 400.16. Generally speaking, a person who has been convicted of a violent felony offense or predatory sex offense and has two prior violent felonies for two separate convictions within a ten year period (not counting time spent incarcerated) is a persistent violent felony offender. If a court makes the determination a person is a PVFO then persistent violent felony offender sentencing is mandatory. The second predicate offense must be committed after the first felony offense for a person to be found to be a PVFO. It is NOT required that a person serve two prior state sentences. Each prior violent felony must be within ten years of the current felony, but the ten years is tolled during periods of incarceration. (See, e.g. People v. Ogarra, 757 NYS2d 683.)

So some of the important things to know about PVFO sentencing are that the crimes must be sequential, the sentence is mandatory if applicable, and there is a ten year period within which the two prior violent felonies must have occurred.

Persistent felony offender

Penal Law Section 70.10 addresses persistent felony offender sentencing. Notably, that statute does not require that the two prior felonies occur within a specified period. It does, however, require that the felonies be sequential and that the defendant served a state prison bid on at least two prior felony convictions (by requiring the sentence for each conviction be in excess of one year or death under Penal Law 70.10(1)(b)(i)) (Death? Then isn't persistent a bit of overkill, if you'll pardon the pun?) Persistent felony offender sentencing is within the discretion of the judge, and may be based on factors other than simply prior sentences. Therefore, it has been challenged as unconstitutional (but found constitutional by the NYCA and Second Circuit) and may yet be reviewed by the Supreme Court. The procedure used to determine whether a defendant is a persistent felony offender is contained in CPL Section 400.20.

With any kind of predicate sentence, out of state charges may be considered to be felonies, but you actually have to analyze whether they constitute felonies under New York law, first by looking at the face of the statute, and sometimes by looking at the accusatory. (For example, in some states, breaking into a car may be considered a burglary. Not a felony in New York even if a person did state time in the other state, and even if it was your car. Thus, not a predicate felony for sentencing purposes.) See 70.04(1)(b)(i) and 70.06(1)(b)(i) for the requirements for out of state felonies, as well as cases interpreting that statute.

So some of the most important things to know about PFO sentencing are that the crimes must be sequential, the sentence is NOT mandatory if applicable, there is no statutory period in which the two felonies must have occurred, but each must have resulted in a sentence of state prison (70.10[1][b][i]).

So if the judge or prosecutor is threatening persistent sentencing, make sure you have reviewed your client's record and determined whether it supports that sentence.

Mandatory consecutive

Penal Law Section 70.25 governs when sentences must be concurrent or consecutive. Importantly, although a defendant may be a second felony offender, that does not automatically mean that s/he is required to serve consecutive time. The specific circumstances that require consecutive time are contained within the statute. They include when a person is sentenced as a predicate or persistent felony offender (but do not apply to all predicates/persistents - read the statute) and are on parole (which is described as an "undischarged sentence of imprisonment imposed prior to the date on which the present crime was committed"), defendants charged with escape, bail jumping, VFOs while released on pending felonies, etc.

Prior violent felonies

Keep in mind that certain E felonies charged as attempts to commit D felonies may not be prior violent felonies. See Penal Law Section 70.02(d).

The Government’s Knowing Use of False Testimony And its Failure to Investigate its Witnesses

2011-08-21T13:35:00.002-04:00

by
Mark D. Hosken, Supervisory Assistant Federal Public Defender.
Western District of New York

What should happen when the government knowingly introduces a witness’ false testimony in a trial. That question was recently before the Seventh Circuit in United States v. Freeman, No. 09-4043, ___ F.3d ___ (7th Cir. June 17, 2011). There, the panel affirmed the District Court’s order granting the defendant a new trial. While taking place in the Seventh Circuit, the panel’s holding serves as a reminder as to what defense counsel should do if you are faced with the government introducing testimony known to be false.

In Freeman, an individual charged in a multi-defendant drug conspiracy decides to cooperate, and testifies before the grand jury. He told the grand jury that he participated in the drug conspiracy by mixing and bagging up the drugs for one of the other defendants, and explains how the other defendants fit into the operation. He chronicles his meetings with the defendants and the occasions when he witnessed them together. He testifies to a specific time frame (2003) when he saw all of the defendants at a specific location known as the “penthouse.” That testimony was not true. It was undisputed that one of the defendants, Brian Wilbourn, was incarcerated during a three and a half year period (between 2002 and 2005) when the witness claimed he was present while the defendants were bagging drugs at a specific location.

Defense counsel reviews the witness’ grand jury testimony while preparing for trial. He notifies the government that his client could not have been seen with the other defendants as the witness claimed because his client was incarcerated. As the Seventh Circuit panel noted, “the government plowed ahead and still had [its witness] testify. It solicited testimony about Wilbourn’s presence at the penthouse; it even encouraged [its witness]to specifically detail Wilbourn’s participation in [the] operation there. . . . What’s more, when Wilbourn’s attorney began cross-examining [the witness] about the impossibility of Wilbourn being at the penthouse, the prosecutor objected, stating in the presence of the jury, ‘Objection. That’s not true.’” Freeman, 2011 WL 2417091, at *2-3.

Near the end of the trial the government stipulated that that Wilbourn was in prison from April 2002 until September 2005. Twelve days after the government’s witness testified, the stipulation was read to the jury. Notwithstanding the stipulation, the government relied on its witness’ testimony during its closing argument. According to the government, its witness did not lie during his testimony. Rather, the government argued that he was just imprecise or mildly mistaken about the dates on which some events occurred.

The District Court sustained several defense objections, and informed the government that its argument was both inaccurate and an attempt to bolster its witness’ testimony. The District Court later determined that this constituted prosecutorial misconduct. The defendants were ultimately found guilty of the conspiracy charge. However, the defendants moved for a new trial on the ground that the false testimony of the government’s witness violated their due process rights. The District Court agreed.

In Freeman, 2011 WL 2417091, a 7th Circuit panel affirmed the district court’s grant of a new trial. Relying on the Supreme Court’s holdings in Napue v. Illinois, 360 U.S. 264 (1959), United States v. Bagley, 473 U.S. 667 (1984), and United States v. Agurs, 427 U.S. 97 (1976), the panel upheld the district court’s determination that there was a reasonable likelihood that the false testimony could have affected the jury’s judgment and that if not for the improprieties, the defendants would have been acquitted.

More importantly, the panel extended the government’s duty beyond merely determining the accuracy of its claims. Now, the government must not forgo its duty to investigate its witnesses.

The government’s duty to assure the accuracy of its representations has been well stated many times before. . . . This means that when the government learns that part of its case may be inaccurate, it must investigate. . . . It cannot simply ignore evidence that its witness is lying. . . . Here, the government abdicated its responsibility by failing to investigate and determine whether (the defendant) could have been (where the witness) claimed he was.

2011 WL 2417091 *5. (internal cites omitted).

In United States v. Agurs, 427 U.S. 97 (1976), the Supreme Court explained that the rule of Brady v. Maryland, 373 U.S. 83 (1963), applied in different situations. The first being those instances when the prosecution knew or should have known about perjured testimony. These situations are fundamentally unfair. Convictions obtained therein must be set aside. This requires a finding that there existed a reasonable likelihood that the false testimony could have affected the jury’s judgment. Agurs, 427 U.S. at 103.

The Second Circuit has applied the Agurs analysis to set aside convictions when the government’s witnesses have presented perjured testimony. See, United States v. Mele, 462 F.2d 918 (2d Cir. 1972) (the government’s deceit including untruthful testimony, deliberate excisions from reports, preparation of false reports and repeated misrepresentations required a new trial); Perkins v. LeFevre, 691 F.2d 616 (2d Cir. 1982) (the prosecution’s failure to provide the witness’ rap sheet to the defense after the witness denied any convictions which were recorded on his criminal history resulted in the granting of a writ of habeas corpus.); United States v. Wallach, 935 F.2d 445 (2d Cir. 1991) (the perjury of the government’s witness required a reversal of the convictions when the government in redirect and in closing argument made much of the witness’ motive for telling the truth.); United States v. Vozzella, 124 F.3d 389 (2d Cir. 1997) (the government’s use of business record evidence that it knew contained fictitious entries, and according to its author were false in their entirety, required reversal when the government conducted no further inquiry into the veracity of the records.); Jenkins v. Artuz, 294 F.3d 284 (2d Cir. 2002) (the prosecutor’s failure to correct the record in spite of the witness’ false testimony and her argument in summation relying on that false testimony was sufficient basis to grant a writ of habeas corpus); and Drake v. Portuondo, 553 F.3d 230 (2d Cir. 2009) (the prosecutor knowingly elicited false statements from a witness and did not correct the record when the witness testified falsely about conversations he had with the prosecutor - this was sufficient to grant a writ of habeas corpus.).

The importance of the Freeman decision is the imposition of a duty on the prosecutor to investigate his/her witnesses. The government’s counsel may no longer contend “I didn’t know,” or “the witness was simply mistaken,” or “the defense attorney had a sufficient opportunity to cross examine the witness.” Defense counsel should put the government on notice of a witness’ perjury, record proper objections, and challenge the government’s failure to correct the record. Building on the Supreme Court decisions and adding the direction in Freeman, counsel should argue the government’s failure to fully investigate its witnesses is a sufficient basis to set aside a conviction, obtain a new trial or otherwise secure a dismissal in the appropriate criminal prosecution.

Some Thoughts on Felony Sentencing in New York

2011-08-11T22:16:00.003-04:00

Jill Paperno
Second Assistant Monroe County Public Defender

Plea and sentence negotiations are a part of our practice that requires social skills, strategy, and yes, a knowledge of the sentencing laws. If a client is facing a much higher sentence, maybe the deal on the table is a good one. But if they're not, it may not be. Very often DAs and judges are not familiar with the details of the sentencing laws and might, out of lack of familiarity, misstate the sentence exposure your client faces. We have to know what the possible sentences are in a case before we walk into the conference. But unfortunately, the sentencing statutes are dense and poorly written. But we still have to know them. There are some common errors defense attorneys make that I'd like to address broadly. Remember - it's always important to read the applicable statutes - after all these years all the experienced attorneys I know review them time and time again. And for some of these statutes, the practice commentaries and cases interpreting the statutes are a must-read as well.

Persistent offender statutes
Prosecutors often enjoy raising the specter of persistent felony sentencing if a defendant does not accept a lousy offer.

There are two kinds of persistent felony sentencing statutes - the persistent felony offender statute and the persistent violent felony offender statute. Each one elevates the minimum sentence a defendant may receive, and makes the maximum sentence life. But there are important distinctions between the two.

Persistent violent felony offender

Penal Law Section 70.08 addresses persistent violent felony offender sentencing. The procedure a court must use in determining whether a defendant should be subjected to such sentencing is contained in CPL 400.16. Generally speaking, a person who has been convicted of a violent felony offense or predatory sex offense and has two prior violent felonies for two separate convictions within a ten year period (not counting time spent incarcerated) is a persistent violent felony offender. If a court makes the determination a person is a PVFO then persistent violent felony offender sentencing is mandatory. The second predicate offense must be committed after the first felony offense for a person to be found to be a PVFO. It is NOT required that a person serve two prior state sentences. Each prior violent felony must be within ten years of the current felony, but the ten years is tolled during periods of incarceration. (See, e.g. People v. Ogarra, 757 NYS2d 683.)

So some of the important things to know about PVFO sentencing are that the crimes must be sequential, the sentence is mandatory if applicable, and there is a ten year period within which the two prior violent felonies must have occurred.

Persistent felony offender

Penal Law Section 70.10 addresses persistent felony offender sentencing. Notably, that statute does not require that the two prior felonies occur within a specified period. It does, however, require that the felonies be sequential and that the defendant served a state prison bid on at least two prior felony convictions (by requiring the sentence for each conviction be in excess of one year or death under Penal Law 70.10(1)(b)(i)) (Death? Then isn't persistent a bit of overkill, if you'll pardon the pun?) Persistent felony offender sentencing is within the discretion of the judge, and may be based on factors other than simply prior sentences. Therefore, it has been challenged as unconstitutional (but found constitutional by the NYCA and Second Circuit) and may yet be reviewed by the Supreme Court (the cert. petition in People v Battles is pending) The procedure used to determine whether a defendant is a persistent felony offender is contained in CPL Section 400.20.

With any kind of predicate sentence, out of state charges may be considered to be felonies, but you actually have to analyze whether they constitute felonies under New York law, first by looking at the face of the statute, and sometimes by looking at the accusatory. (For example, in some states, breaking into a car may be considered a burglary. Not a felony in New York even if a person did state time in the other state, and even if it was your car. Thus, not a predicate felony for sentencing purposes.) See 70.04(1)(b)(i) and 70.06(1)(b)(i) for the requirements for out of state felonies, as well as cases interpreting that statute.

So some of the most important things to know about PFO sentencing are that the crimes must be sequential, the sentence is NOT mandatory if applicable, there is no statutory period in which the two felonies must have occurred, but each must have resulted in a sentence of state prison (70.10[1][b][i]).

So if the judge or prosecutor is threatening persistent sentencing, make sure you have reviewed your client's record and determined whether it supports that sentence.

Mandatory consecutive

Penal Law Section 70.25 governs when sentences must be concurrent or consecutive. Importantly, although a defendant may be a second felony offender, that does not automatically mean that s/he is required to serve consecutive time. The specific circumstances that require consecutive time are contained within the statute. They include when a person is sentenced as a predicate or persistent felony offender (but do not apply to all predicates/persistents - read the statute) and are on parole (which is described as an "undischarged sentence of imprisonment imposed prior to the date on which the present crime was committed"), defendants charged with escape, bail jumping, VFOs while released on pending felonies, etc.

Prior violent felonies

Keep in mind that certain E felonies charged as attempts to commit D felonies may not be prior violent felonies. See Penal Law Section 70.02(d).

Strategies for Defending Sex Crimes

2011-08-10T22:15:00.002-04:00

Frequent contributor to this blog, Second Assistant Monroe County Public Defender Jill Paperno, is a very knowledgeable and successful trial attorney. Her posts usually consist of practical advice to trial counsel in which she shares her expertise. Now, in a longer and more formal setting, Jill is sharing her expertise in a book. Jill is one of the co-authors of a the newly published "Strategies for Defending Sex Crimes: Leading Lawyers on Understanding the Current Sex Crimes Environment and Building a Thorough Defense (Inside the Minds)" in which experienced attorneys provide detailed advice on the defense of sex crimes from the initial client interview and investigation, through preparation for psychosexual evaluations, examination of scientific evidence, trial, and, if necessary, sentencing.

Picture This: Photographs and Criminal Trials

2011-07-13T12:36:00.002-04:00

by
Jill Paperno, Esq.
Second Assistant Monroe County Public Defender

A picture is worth a thousand words. In a case I tried a month ago I was once again reminded of the helpfulness of photos at trial. Even the prosecutor’s. Sometimes especially the prosecutor’s. But in order to take full advantage of photos you have to carefully examine them, know the scene or location which they depict, know your case, and know how to introduce them into evidence.

First Things First

Did the police take photographs? When you get your discovery packet, make sure you look for the technicians’ reports and property reports. Sometimes they are not included with the original packet. The Rochester Police Department has a protocol for how a technician must record photos that are taken. The protocol includes location, subject, roll of film (okay, it’s a little outdated) and other information. It is in their directives. If you have reason to believe that photos were taken and you have not received them, request them of the prosecutor. Sometimes photos are taken of the rape complainant at the hospital, and they are always taken by the Medical Examiner during autopsies, so make sure you have those too. If you need a picture of the defendant after arrest to show injuries, clothing, or other aspects of his or her appearance, consider subpoenaing the booking photo. If you want photos of the client to establish injuries that might not have been observed by police or jail staff, get an investigator to call the jail, get permission to come in with a camera, and take pictures of your client.

Look At The Photos. Then Look Again

Read your discovery packet and review the photos. Then look at them again. Show them to your colleagues. Show them to your client. Sometimes the smallest things will become significant. Sometimes you will see evidence that is damaging, and you must prepare for it. Sometimes the photos help you out.

Your Photos

I’ve been asked by younger attorneys whether we have the obligation to provide the prosecutor all of our photos. Heck, no! We do have to provide the photos we’ll be using at trial, but figure out which those are likely to be before turning them over. I’ve had a prosecutor ask the judge to order me to provide my box of photos to him. I had said no. So did the judge. He had the ones I was going to use. See CPL 240 for guidance on what the defense has to provide in discovery.

Foundation According To The Experts

According to Richardson on Evidence, "Properly authenticated photographs are admissible whenever relevant to describe the physical characteristics of a person, place or thing (cites omitted)...Photographs are properly authenticated by the testimony of a witness familiar with the subject portrayed that the photograph is a correct representation of the person, place object or condition depicted (cites omitted). The witness need not be the photographer (cite omitted)." Prince, Richardson on Evidence (11th Edition) Section 4-212.
According to Imwinkelreid, "Like other articles, still photographs must be authenticated or verified. In the past, some courts insisted that the photographer appear as the sponsoring witness. Modernly, the prevailing view is that any person familiar with the scene or object depicted may verify the photograph. The foundational elements are as follows: 1. The witness is familiar with the object or scene. 2. The witness explains the basis for his or her familiarity with the object or scene. 3. The witness recognizes the object or scene in the photograph. 4. The photograph is a 'fair,' 'accurate,' 'true,' or 'good' depiction of teh object or scene at the relevant time." Evidentiary Foundations, Section 4.09(1), Sixth Edition, Edward J. Imwinkelried.

Getting The Photographs In

You do not have to use your own witness to get a photo in. You do not have to use the person who took the photo. All you need is someone who can testify that the photo fairly and accurately depicts the location/appearance of the item/scene/whatever as it appeared on the date and time in question.
So this is the dance – show the picture to the prosecutor, give it to the stenographer to mark the picture, tell the witness “I’m now showing you what’s been marked as defendant’s exhibit (whatever it’s marked as) for identification.” If it’s your witness you can ask what the photo depicts. If it’s the prosecutor’s you might have to lead them – I always do. “Does this photograph depict the front of the store at (address)? Does this photograph appear to fairly and accurately depict the appearance of the front of the store at that address on (date of incident). “ Then, if you want the photo in evidence – that is, if you want to show it to the jury, tell the Judge, “Your honor, I would now offer defendant’s exhibit A into evidence. “ The judge will ask the prosecutor if there are any objections. Sometimes they object that the witness did not take the photo. That’s an incorrect objection and you shouldn’t even have to respond to it. If there is no objection or the judge says s/he’ll receive the exhibit, then hand it to the stenographer to mark as received. You cannot show a photo to the jury until it is received and marked as received.

A few pointers – keep your exhibits that are received separate from those that have not been received so you don’t accidentally show the photos that are not in evidence to the witness. Keep them in a special file so they are accessible at the end of the case when all of the received exhibits are collected to provide to the jury during deliberations.

If there’s a gruesome or damning photo left up on display for the jury to view by the prosecutor during the trial, by all means, feel free when you are getting up to question to take it down. If it’s left up and no longer relevant to the questioning, ask the judge if you can remove it.

If you are using photos that you have marked, make sure you offer them before the witness leaves. You definitely don’t want to offer it too late, face an objection by the prosecutor, and not be able to have the witness testify to provide any further foundation that is necessary. I keep a checklist or note in my examination the point at which I’ll be offering certain photos.

If a photo has something helpful and something that’s been precluded, consider cutting the photo. But don’t leave the prosecutor’s scissors on the table by your client. (Oops – my bad.)

If you don’t know if you will get the testimony out through an adverse witness, don’t be afraid to try. In one case last year in which my client was accused of selling drugs to an undercover officer, the officer written in his report and noted on the audio recording that the seller wore a black hoody. My investigator had taken a picture of my client wearing the black leather jacket with the red emblem that my client said he was wearing that day. So I asked the officer if the jacket in the picture my investigator was wearing appeared to be the jacket he was wearing when he was arrested shortly after the buy(and if it fairly and accurately represented the appearance of the jacket on the date in question). Much to my surprise, he said it did. Phew – my client would not have been a great witness and we had no other way to establish that jacket was the one my client was wearing. The disparity between the jacket and the officer’s description, among other things, helped in that case.

Using The Photographs

The best way to explain some of the ways photos can help is to go through some experiences I’ve had with photos at trial. I’m not a big fan of war stories, but I think that sometimes shared experiences help us find different ways to handle cases.

In the last trial I had, my client was charged with Criminal Possession of a Weapon in the Second Degree. The allegation was that he possessed a weapon that was in a vehicle. He was in the passenger seat when the police approached the parked car. His co-defendant was in the driver’s seat. The gun was photographed by police wedged against the right side of the driver’s seat. My client informed me that the gun was not visible when he sat in the passenger seat; there was a stuffed animal obscuring its visibility. The location was important because although my client could be presumed to possess the weapon based on the statutory presumption (more on that another time), the prosecution also had to prove my client knew the weapon was there (though a presumption might have been applied by the jury on that element too, but again, another day). In order to prove my client knowingly possessed the weapon, the prosecutor wanted to establish that anybody would have known the gun was in the vehicle.

Since my client had told me that the stuffed animal had been moved, I asked the officer at the pre-trial hearing about whether the gun appeared in the vehicle when he observed it as it did in the photo. He acknowledged that it did not, and that a “small, tiny” stuffed animal was placed in front of it. At trial the prosecutor had the officer mark with black marker on the photo of the gun two lines which indicated which parts of the gun were visible. He marked off two narrow horizontal areas – one toward the front of the gun along the barrel, the other behind the cylinder. I then took my picture, had the stenographer mark it, and asked him to make the identical lines on my exhibit. Then I asked him to black out everything that was obscured by the animal. He blacked out everything underneath the lines he made – most of the gun. So what we were left with was the small areas of the gun next to a seat behind a stuffed animal in a van at night. Thoughts on that – use your own exhibit – not the prosecutor’s - so everyone doesn’t freak out, and consider the impact of how much of the item would remain visible if you do this experiment. It was only after the officer had marked the lines for the prosecutor that this occurred to me, because I could see that very little would be left visible.

Other photos in that trial helped establish the officer’s bias. He claimed he did not know if a flash was necessary for the photos because it was so light out that night. So I took the photos and used the technician to establish that a flash was used for each picture, and pointed out through the technician the glare of the flash in each exhibit. (“I’m now showing you People’s Exhibit 1 in evidence. Is this a photograph of the interior of the car?” “ Yes.” “ And I’m now pointing to a brighter area along the handbrake. Is that a reflection of the flash you used when taking that photo?” “ Yes.”

In summation I noted to the jury that we all knew why we were arguing about how much lighting there was and what part of the gun was visible – it was because the prosecution had to prove my client had knowing possession of the gun. And if he couldn’t see it, he couldn’t know it was there. I argued that the lights of the photos didn’t accurately reflect what my client could see.

In a trial a few months ago, the witness described a particular type of toy he had received on a particular date, claiming that helped him remember when the sexual abuse had occurred. I noticed that a similar toy was hanging on the bedroom wall in one of the photos, but its colors were slightly different. So I asked him if that was another toy of the same type on the wall. I asked how many he had (four) and when he got them (he listed four dates). None of the dates was the one he’d testified to on direct. Once again, photos helped save the day.

In one case several years ago, my client was charged with rape. He claimed he was involved in a healing ritual of Santeria and did not rape the complainants. My investigator had gone to the scene early on and photographed everything while my client was in jail. We retained an expert and she confirmed items present in the house were consistent with Santeria practices. In a homicide case years ago the trail of blood was inconsistent with the testimony of the witness.

In another case the complainants alleged my client had intimidated them into having sex with them. But why did one of them ask him to the prom? The picture of her, smiling, with her prom date (my client), on a date after the alleged abuse was a basis for reasonable doubt.

Photos may show the proximity of bedrooms which make it unlikely for events to have occurred a certain way. They may show that the car the prosecutor claims is worth $20,000 is really worth far less because the various parts have been taken from other cars so it’s not an original.

If you have a case in which the prosecutor is claiming events happened on certain dates, see if your client’s family has photos from those dates. I’ve actually had two cases in which complainants’ assertions of events on certain dates were refuted by photos – one a birthday picture in which the complainant was not present (she didn’t realize my client’s daughter’s birthday was the same date she said he’d raped her).

Once The Photographs Are Admitted, USE THEM

Strut your stuff! I’ve seen too many attorney s offer the photos and then not use them to their fullest advantage. Once the photo is in, if you don’t have further questions for the witness about the photo, ask the judge if you can publish it. That just means showing it to the jury. That can be done by giving it to the deputy and having the deputy hand it to the jurors, holding it up yourself and walking it past the jury, or if there’s a “visualizer” in court (photo display equipment) put it on the bed of the machine and display it. It’s often helpful to have a few questions to ask the witness to emphasize the importance of the photos. Even if it’s restating the obvious – “So, directing your attention to defendant’s exhibit A in evidence, the photo of the gun, the portions I am now pointing to above the black marked out area were all you could observe before moving the stuffed animal, is that correct?”

Make sure when you’re using the photos, you both refer to the exhibit number and describe what’s in the photo. You don’t want a read back during deliberations in which the testimony you elicited is unclear. (“Yes – I was standing there, and he was there, and then he pushed me into that area there.”) If you are having the witness describe items in the photo, note what the item is and where it is in the photo – “Now, directing your attention to the upper right hand corner of defendant’s exhibit B, the picture of the house, there is a window there, is that correct?”

And please- PLEASE – do not have your back to the jury as you are questioning the witness or working with the exhibits. Stand next to the witness facing the jury. Or, if there’s a visualizer, you can stand by that item and ask to have the witness step down. Or you can ask to have the witness step down in front of the jury to work with the exhibit. But don’t have your back to the jury.

Summing Up

Don’t forget to use the photos during summation. I find they’re a great way to get me moving around the courtroom. You may wish to note in your summation notes when you’ll use certain pictures or other evidence. Use the prosecutor’s photos either to support your argument, or to explain how they’re awful, but the jury must decide this on the facts, not their emotions, and that the prosecutor may hold up these photos during his or her summation in an effort to appeal to their emotions.

Can a Challenge to an Earlier Invalid Sentence Impact Predicate Status for Sentencing on a Subsequent Felony?

2011-07-03T21:47:00.004-04:00

by
Jim Eckert, Esq.
Assistant Monroe County Public Defender

Sometimes it doesn't help if the other side can see why you're doing what you're doing. Is it possible for a defendant to remove a predicate conviction by challenging an invalid sentence and demanding to be resentenced? At issue before the Court of Appeals recently was the question whether a defendant could - by sacrificing an illegally lenient sentence on a prior conviction - remove a predicate conviction by effectively moving his conviction date from before the current crime was comhttp://www.blogger.com/img/blank.gifmitted to after.

The answer under the facts in this case was no (People v Acevedo, 2011 NY Slip Op 05582 [decided June 30, 2011]). But in an homage to the United State Supreme Court, the Court was divided 3-3-1, and so even after reading all the opinions in the case it is not clear what it means for the future.

The primary opinion, issue by Chief Judge Lippman, states, "The threshold, and we believe dispositive, issue on these appeals is whether a resentencing sought by a defendant to correct an illegally lenient sentence is effective" to move the date of that prior conviction. The facts are these, in each case the defendant was not sentenced to post-release supervision (PRS). In each case, having caught a new felony (there was a lot of that going around), the defendant sought to vacate the prior sentences on the entirely reasonable ground that they were illegal. Of course, they were illegally beneficial to him, and this did not escape the notice of the court. "The only practical benefit defendants could possibly gain from the resentencings was to move their sentences to a later date, thus eliminating their prior crimes as predicates in their later cases. We would hold that this tactic was ineffective: in circumstances like these, the original sentencing date should be the one to be considered for predicate-felony purposes."

To the three judges participating in the primary decision, the process failed largely because it's purpose was so transparent. "By the time of their resentence motions, Acevedo and Collado had fully served the sentences originally imposed upon the convictions later used as predicates for sentence enhancement." The court assumed, arguendo, that the resentencings were not nullities, but decided, "In moving to be relieved of their original sentences and thereafter resentenced in connection with their prior felony convictions, defendants manifestly had no expectation that they would obtain "relief" from those originally imposed, fully discharged sentences. It is instead transparent, if only from the timing of their CPL 440.20 motions, that defendants' purpose was, by means of vacatur and resentence, to render their prior convictions useless as predicates to enhance punishment for the crimes they subsequently committed. Resentence is not a device appropriately employed simply to alter a sentencing date and thereby affect the utility of a conviction as a predicate for the imposition of enhanced punishment."

It seems to me that the reason these three judges held that the date was not effectively moved was that there was no benefit at all to the defendant in his underlying motion, except in the knock-on effect on his predicate status. The core of the court's reasoning is this: "it is fair to say that Sparber resentencing is not from the perspective of most defendants remedial. Ordinarily, defendants do not move for the addition of PRS to their sentences." The court's conclusion makes this clear, "The present scenarios afford no occasion to decide what effect a bona fide Sparber resentence, or any resentence other than the ones before us, should have for predicate-felony purposes. All that we would decide is that the Sparber relief these defendants obtained was not effective to avoid the penal consequences of reoffending."

It is unusual (and I think a mistake)for a court to interpret a statutory provision, not on the statute's language, but on the intentions of the person seeking the benefits of the statute. Should the outcome be different if the defendant can prove that his conscience suffered because he knew he had not paid his full debt to society? Thwarting the obvious in a few cases creates confusion in the far more common case where the purpose of the motion to vacate the prior sentence is unclear or unimportant. "You can't have this because we know why you want it" is problematic as a rule of statutory construction.

Judge Piggott and two other judges concurred, reasoning that resentencing never changes the original conviction date, in any case, ever. Arguably, this is the pro-defense position because if sentencing doesn't change when it helps us, leaving the question open if it were to hurt a defendant can only be bad.

The lone dissenter was Judge Jones, "The resentencing in each case took place after the commission of the second felony. Criminal Procedure Law § 70.06 makes absolutely clear that: 'For the purpose of determining whether a prior conviction is a predicate felony conviction . . . [the s]entence upon such prior conviction must have been imposed before commission of the present felony.'" It doesn't seem unreasonable to look to the language of a statute to determine its meaning. Yet Judge Jones was the only judge to vote that way.

So, half the majority said the defendant could not move his conviction date because, on these facts, the defendant was trying to benefit from increasing his old sentence and that's not cricket. Half the majority said the defendant could not move his conviction date because it never moves. Judge Jones, who voted that the defendant was entitled to benefit from the move, nonetheless did so based on reasoning which could conceivably produce a 4-3 vote if the move were to benefit the prosecution. On the other hand, if the Chief Judge's three votes were to change where, say, the prosecution re-opened sentencing for its own purposes (as has happened many times recently), there would appear to be four judges who would say that the DA had effectively moved the predicate to a date after a newer crime occurred.

It looks like another decision is needed before one can answer the question posed by the title to this post.

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

2011-06-23T20:13:00.014-04:00

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.

Conviction After Trial Does Not Cure Defective Grand Jury Instructions

2011-06-20T20:57:00.002-04:00

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...

Another Reason To Not Smoke

2011-06-14T20:48:00.004-04:00

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.

(see).

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

2011-06-14T20:16:00.004-04:00

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 decidhttp://www.blogger.com/img/blank.gifed 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.

Another Reversal Where More Offenses Proved Than Charged

2011-06-12T20:38:00.005-04:00

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

2011-06-12T20:00:00.005-04:00

by
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.

Five Minutes Might Not Be Enough

2011-06-07T20:31:00.002-04:00

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]).http://www.blogger.com/img/blank.gif

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.

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

2011-06-04T16:29:00.004-04:00

by
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."

And

"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

2011-06-04T12:44:00.005-04:00

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.

Practice Tips: The First Interview With a New Client

2011-05-16T19:13:00.006-04:00

by

Jill Paperno
Second Assistant Monroe County Public Defender

The first meeting with a client can set the tone for the rest of the relationship. Like a first date, you want to make a good impression, let the client know that you are smart, caring, and the person they want be with for the forseeable future. And like a first date, you should prepare.

1. Appearances do matter

I am a public defender, so I have a bias to overcome with many clients. I believe my clients are entitled to feel that they are being represented by a professional, so when I meet clients, I try to appear..well…professional. Even if it’s a week-end, if it’s the first time I’m meeting with a client I will wear appropriate “lawyer clothes”. I think it helps instill confidence in the client. I think this is even more important for the young attorney, who may appear too inexperienced to the client. The suit, or jacket and whatever, convey a degree of professionalism that may help to overcome clients’ concerns. Sure, I know that we all want to be liked for who we are, but let’s face it, we live in a superficial world, and that’s not going to change tomorrow.

2. Prepare

Before you meet with a client, make sure you’ve reviewed the accusatory instruments and any other documents you may have, the applicable statutes defining the offenses the client is charged with, and the relevant sentencing statutes. Try to find out if the client is on probation or parole, and what impact that will have on your client’s custodial status and future sentence, if any. If you have a copy of the client’s statement, and it makes out a possible defense, read the statute or law relating to the defense.
Bring a legal pad, business cards and a pen, as well as the file and other relevant documents.

3. The meeting

Make sure you are meeting in a location that is private enough that your conversation cannot be heard. In the jail, this may be a challenge, but you can request private rooms during business hours.

I always shake a client’s hand when I meet them for the first time (and every time afterwards). I think it conveys a professional and respectful relationship. I also refer to clients by their last names – Mr. or Ms. X or Y. If they ask me to call them by their first names I will. This is simply a style choice, but I think it sets the tone for the relationship.
At the first meeting you may wish to have a checklist of topics to cover. Consider the following questions (which you may not reach completely in the first meeting, but make sure you hit the first two):

1. Where were you born (not “Are you a Citizen?”) – People do not always know their citizenship status, but they know where they were born. If they were not born in the U.S. contact an immigration expert before resolving the case with any plea or disposition. Note the client’s citizenship or lack of citizenship on your file and do not take any plea unless you know that you have made this inquiry.

2. Are you on probation, post release supervision or parole? It is important to obtain this information because any plea, even with a conditional discharge, may result in a sentence in prison or jail if the plea establishes a violation of probation or parole. (Make sure you know the difference between probation and parole – probation is community supervision in lieu of jail, and parole or post release supervision is supervision following a prison sentence.) Mark on your file whether the defendant is on probation or parole, and never take a plea if your file does not reflect that you have that information, know the consequences, and have informed your client. If the client has federal charges pending, contact the Federal Defender's Office to coordinate representation.

3. Make sure you ask about other pending state and federal charges (Do you have any charges pending in any other court?) If the client does, you will want to coordinate representation with the other attorneys handling that client's cases, and make sure the client is represented on all of his or her charges. It does not benefit the client to settle your case with a great disposition if there are other charges pending that result in large sentences, especially if your disposition has reduced or eliminated the jail time credit. (Jail time credit will be discussed in some future post - but for now, consult with others if you are not familiar with the impact of the resolution of your charges on charges pending in other courts, and take a look at Penal Law Sections 70.30. Actually, take several looks at it - it's a very difficult statute to understand.)

4. Have you ever been convicted of a crime? If so, what was the crime, when was the conviction, where was it, and what was the sentence? (This question comes later in the discussion.) Prior convictions may elevate misdemeanors to felonies, or may cause a client to be facing a mandatory prison sentence or a higher sentence. Check out the crimetime website to get some guidance on sentences, but make sure you confirm by reviewing the statutes yourself.

5. Family and friend names and contact information – get a list of names, phone numbers and addresses. Find out if any are charged in the current offense (you can’t talk to them). If your client is in jail, are there any your client can stay with if s/he is released? Who can be contacted if you can’t reach the client?

6. Confirm the client’s contact information and get alternative contact information.

7. Are there family members the client wants you to discuss the case with? Are there family members the client does not want you to discuss the case with? (Although a client may want you to speak with certain friends or family, you should decide whether this could potentially harm the case. Discussing a plea with parents of a young client may be a good idea; discussing a client’s cooperation with police with anyone is a really bad idea.)

8. Did the client have a cell phone at the time of arrest? Where is it now? If the client had a phone, were there photographs or texts on it? What were they? (Important in sex offense, porn, drug and weapons cases especially, and possibly alibi cases, and cases in which the client may have communicated with other suspects prior to the offense.

9. Where was the client arrested? Questions related to this topic will assist you in beginning to explore Fourth Amendment issues.

10. Was the client questioned by police? If so, where and when did each officer speak with the client. Learn in as much detail as possible who said what and in what sequence. (Don’t ask if the client made a statement – the client may think if it’s not in writing it doesn’t count.) Try to find out if a discussion took place in a room which appeared to have a camera. If so, there may be a video-recorded statement. Take your time and seek as much information as possible about any questioning by the police.

11. Were there any witnesses to the event? If so, where do they live, what are their names, how do you reach them?

12. Does the client have any history of medical treatment? Is s/he on medication? Does s/he have any history of mental health treatment? Any history of head injury? Does the client receive SSI? Does the client have any history of alcohol or drug abuse? Treatment? If I think the client may be developmentally or learning disabled I may ask the client to read something to me – such as a form part of the accusatories – and tell me what it says. I try to do it in a supportive and non-threatening way, explaining it helps me understand what they understand. Bear in mind that if a client says s/he can’t read because his glasses are no good or s/he doesn’t have his or her glasses, it may mean the client is illiterate.

13. Where did the client go to school? What grade did s/he reach? Was s/he in regular classes or special education classes?

14. If you are considering a bail application, the client’s history of employment, ties to the area, criminal history, history of bench warrants, and any other information that reflects a likelihood the client will return to court. Do not rely exclusively on the client’s representations about criminal history and bench warrants as this is checked by the court and if the client is inaccurate (either intentionally or accidentally) you’ve got some ‘splainin’ to do.

15. Find out if the client has any social networking sites. Consider having them made “private”.

16. In addition to all of the above, you may wish to get a detailed account of everything that happened leading up to the arrest. If you do not do it at this point, you will want to do it as soon as possible, so that the details are fresh in your client’s mind. There are times I may choose not to get details, but it depends on the individual case.

I always advise a client not to speak on the phone at the jail about his or her case at the first meeting (and usually all subsequent meetings). In appropriate cases, I advise them not to discuss their cases on their phones from any other location. Make sure that your client knows and understands that phone calls at the jail are monitored, recorded and provided to prosecutors.

I also advise the client that s/he should not discuss the case with anybody – ANYBODY- else. I explain confidentiality, and that it doesn’t work if the client tells another person about the incident. I explain that other inmates can’t wait to get information from a defendant that they can turn over to prosecutors to improve their sentences.

I also advise clients that if they are on parole, they should not waive their preliminary hearings. I write out a note for the client to give to the parole officer which states, “I do not wish to waive my preliminary hearing. I want to have my preliminary hearing.” I also write a note to the parole officer or probation officer “I do not wish to discuss my case with you based on the advice of my lawyer.” I tell the client to read the note or hand the note to the probation officer. I remind them that they should not even admit curfew violations, as those will support a finding that the client has violated probation or parole.

Clients sometimes ask for copies of their records. I caution them – especially clients with high publicity cases, homicides or sex offenses, that if other inmates gain access to their documents it could affect their safety (in sex cases) and other inmates may choose to cooperate against them, claiming they have information from the client, when in reality they obtained it from the records.

I explain to a client:

1. The upcoming court proceedings, including explanations in felonies of preliminary hearing, grand jury and indictment;
2. The possibility there may be a plea offer, and the steps we should take if we want to try to obtain one (and the fact that it is my job to relate to the client a plea offer)
3. The client’s right to testify before the grand jury (and usually my advice that it is not a good idea at that stage of the case, but that I have to know if they want to in order to advise the prosecutor in time);
4. The client’s right to a jury trial, and the likelihood that the case will either be resolved by plea or trial (and lesser possibilities of grand jury dismissal or dismissal based on motions);
5. Perhaps legal issues that seem to be presented by this early view of the case (with a reminder that we do not have discovery and will not get it until later in the case).

Perhaps more important than the advice you give is the manner you use, and the way in which you listen. Make sure that you do not appear judgmental, even if speaking with a client charged with the most heinous of cases. Make good eye contact, and listen as the client speaks. In fact, you may want to follow the rules you give your kids about how they’re supposed to interact. Generally, don’t interrupt unless you have to focus the client. Even if you think you know the answer or the right decision for the client, don’t rush the client or cut them off – you’re much more likely to get them on board if they feel like they’ve been heard. And don’t rule out a ridiculous story until you’ve investigated. There are many times the strangest stories may actually be true.

Incredible Testimony Renders Searches Lawful

2011-05-13T14:09:00.002-04:00

by

Andrew D. Correia,
First Assistant Wayne County Public Defender

The Court of Appeals recently issued a decision on two consolidated cases (People v Brannon and People v Fernandez (2011 NY Slip Op 03676, _ NY3d _ [5/11/11) which set forth the level of knowledge a police officer must possess before, consistent with DeBour, he or she has reasonable suspicion to believe an individual possesses a gravity knife as opposed to a legal pocketknife.
In People v Brannon , the officer testified that the defendant’s behavior was “somewhat suspicious” in not wanting to walk near the officers. The officer observed a hinged top of a knife in a back pocket. He asked the defendant to stop twice before he complied. The officer saw the outline of what he believed to be a knife. When asked, Defendant admitted he had a knife. The offficer frisked defendant and took the knife. It turned out to be a gravity knife. Officer claimed 4 ½ years experience and 24 previous arrests for the same crime. However he stated that the knife had appeared to him to be a “typical pocketknife.”

In People v Fernandez, the officer stopped the defendant for walking at 12:30 AM with a partially visible knife clipped to his front right pants pocket, the top or “head” of the knife protruding in plain view. The officer approached and “retrieved the weapon” asking defendant if he had any other weapons. Defendant stated he had another knife in his left jacket pocket. Both knives were opened and confirmed to be gravity knives. The officer claimed 4 ½ years experience and 300 arrests involving gravity knives. He described the difference between a knife and a gravity knife. He said that gravity knives are often clipped to a pocket with the ‘head” sticking up outside the pocket.

The issue in these cases was whether, under the circumstances, the officer possessed specific and articulable facts from which he or she inferred that the defendant was carrying a gravity knife.

The Court held that the search in Brannon was bad, but not for the reason you might think, such as: no one can know if a pocket knife is a gravity knife until it is seized and opened. Instead, the Court reasoned that since the police officer was “unable to testify that he suspected or believed it to be gravity knife”, it was a bad search and the indictment was dismissed. Although, Mr. Brannon was, thus, able to win, this decision potentially provides a path to conviction for every other person searched by a police officer, who unlike the officer in Brannon, who is more willing and able to testify that the knife appeared to be a gravity knife. Especially since, when the police guess wrong, and it’s just a regular pocketknife, that police action will likely never see judicial review.
In Fernandez, the officer testified that, based on his remarkable weapon-gathering experience [averaging about one gravity knife every 5.4 days for his entire career at the time of his testimony] that gravity knives are commonly carried clipped and sticking out of the pocket. Despite the fact that, as pointed out by Judge Jones in dissent, a gravity knife can only be confirmed by its operation, this speculative information, couched in terms of the officer’s experience, was enough to persuade the other judges on the Court that this was a lawful search. Thus, the boastful and imaginative officer is rewarded.

Guilty Pleas and the Mentally Ill Defendant

2011-05-08T11:06:00.002-04:00

Courts needs to be particularly careful in accepting a guilty plea from a defendant known to be mentally ill. There are twin dangers in such cases. First, the plea may not be knowing, intelligent, and voluntary. Second, the mental illness might negate the crime charges.

Thus, in People v DeWolf (155 AD2d 995 [4th Dept 1989]), the Appellate Division, Fourth Department held that where the court was aware when guilty plea was entered that defendant pleading guilty to manslaughter was under medication for treatment of schizophrenia and had frequently suffered hallucinations and paranoid delusions, and further evidence of defendant's lengthy history of mental illness was submitted in support of defendant's motion to withdraw his plea, defendant should have been permitted to withdraw plea.

Without citing DeWolf,the Fourth Department, in People v Mox (2011 NY Slip Op 03759 [4th Dept 5/6/11]) has again held that a court erred in denying a motion to withdraw a guilty plea from a mentally ill defendant. The Court explained that

"Although the contention of defendant that his plea was not knowingly, intelligently and voluntarily entered survives his valid waiver of the right to appeal, defendant failed to preserve that contention for our review by failing to move to withdraw the plea or to vacate the judgment of conviction on the ground[] now raised" (People v VanDeViver, 56 AD3d 1118, 1118, lv denied 11 NY3d 931, 12 NY3d 788; see People v McKeon, 78 AD3d 1617, 1618; People v Johnson, 60 AD3d 1496, lv denied 12 NY3d 926). We agree with defendant, however, that this is one of those rare cases in which preservation is not required because "the defendant's recitation of the facts underlying the crime pleaded to clearly cast[] significant doubt upon the defendant's guilt or otherwise call[ed] into question the voluntariness of the plea" (People v Lopez, 71 NY2d 662, 666). County Court therefore had a "duty to inquire further to ensure that defendant's guilty plea [was] knowing and voluntary" (id.), and we conclude that the court failed to fulfill that duty. "[A]t a minimum the record of the . . . plea proceedings must reflect . . . that defendant's responses to the court's subsequent questions removed the doubt about defendant's guilt" (People v Ocasio, 265 AD2d 675, 678). Here, defendant's plea allocution did not remove such doubt with respect to the intent element of manslaughter in the first degree (§ 125.20 [2]; see People v McCollum, 23 AD3d 199). Indeed, defendant's plea allocution suggested that his underlying schizoaffective disorder, for which he was unmedicated, caused him to be in a "psychotic state" at the time of the crime. Thus, defendant's plea allocution in fact negated the element of intent, and the court should not have "accept[ed] the plea without making further inquiry to ensure that defendant [understood] the nature of the charge and that the plea [was] intelligently entered" (Lopez, 71 NY2d at 666).

Prosecutors Generally Cannot Appeal The Granting of Youthful Offender Status

2011-04-29T20:18:00.003-04:00

In People v Jason L. (2011 NY Slip Op 03440 [4th Dept 4/29/11]) the Court rejected an attempt by a prosecutor to appeal a youthful offender adjudication holding that there is no statutory authorization for such an appeal: )

The People contend that the court abused its discretion in granting defendant youthful offender status and that, as a result, the sentence imposed is invalid as a matter of law. We conclude that the appeal must be dismissed. "CPL 450.30 (2) authorizes the People to appeal from a sentence that is invalid as a matter of law" (People v Cosme, 80 NY2d 790, 792), but that statute does not authorize the People to appeal from a youthful offender finding (see generally People v Calderon, 79 NY2d 61, 63-64, 67). Indeed, upon finding that an individual is a youthful offender, "the court must direct that the conviction be deemed vacated and replaced by a youthful offender finding[,] and the court must sentence the defendant pursuant to section 60.02 of the penal law" (CPL 720.20 [3] [emphasis added]). "[T]he youthful offender finding and the youthful offender sentence imposed thereupon constitute a youthful offender adjudication' " (Calderon, 79 NY2d at 65). Here, the People do not allege that the sentence of incarceration of 1 to 4 years is illegal. Rather, "in the guise of challenging the sentence imposed, the People are in essence attacking the validity of the defendant's underlying [youthful offender finding,] . . . [which CPL 450.30 (2)] does not permit them to do" (Cosme, 80 NY2d at 792).

Prosecutorial Misconduct

2011-04-12T22:16:00.004-04:00

by

Jill Paperno, Second Assistant Monroe County Public Defender

In a number of recent cases, courts have addressed examples of prosecutorial misconduct. Set forth below is some of the conduct which has been condemned. Remember - if you don't object, the misconduct is not going to be preserved for appellate review. Even during summation. (You might want to prep your jury for the fact you'll be objecting, even during summation, and ask them if they will they hold that against your client..)

Jackson v. Conway, 2011 WL 657422 (WDNY)

1. Belated disclosure of a jailhouse informant causing a change of counsel, despite the fact that the prosecutor knew of the informant for months before the disclosure. The Court: "Clearly, by hiding the 'Arnold card', she was attempting to secure a tactical advantage over the defense. This type of sharp practice is not only unseemly and not befitting a representative of the People of the State of new York, but was, in the words of Justice Sutherland, a foul blow striking at the heart of Petitioner's Sixth Amendment right to have effective counsel at his side. The prosecutor's deplorable scheme had the desired effect of blind-siding the defense and requiring a last-minute substitution of counsel."

2. Opening - "During her opening statement to the jury, the prosecutor informed the jurors that they would 'have an entirely different picture of defendant than the superficial presentation of him that [they] have now.' At the end of the case, the prosecutor claimed, Jackson would be 'exposed as a twisted, sadistic man who delighted in controlling the members of his very own family to the point that he abused them constantly.' Id. ...The law is well established that it is improper for a prosecutor to attempt to focus the jurors' attention on a defendant's moral character instead of the evidence, and try to inflame their passions and prejudices based upon the egregious nature of the acts alleged to have been committed. (cites omitted)....There is no doubt that the prosecutor's statement was designed to inflame the jurors' passions and attempt to bias them against Petitioner and engender sympathy for the victim."

3. Trying to elicit improper testimony from an "expert" witness - "Furthermore, the prosecutor made a patently frivolous argument when she persisted in urging that Dr. Lenane, although she had not examined any of the victims, should be permitted to read the findings and conclusions of the (uncalled) treating physicians into evidence. The Court does not believe that an attorney of her experience could truly be so ignorant of one of the most basic principles of the rules against hearsay."

4. Violation of the terms of the "Prior Bad Act" evidentiary ruling: The DA improperly elicited prior bad acts outside the time period the trial court had delineated as permissible for the prior bad act testimony.

5. Testifying as an unsworn witness, vouching for witness credibility, personally expressing her won belief in petitioner's guilt:
"The prosecutor improperly testified as an unsworn witness when she told the jury that the 'heinous, horrific acts' related by witnesses 'really happened' and that (defendant had) committed them. The prosecutor improperly bolstered her witnesses credibility and invaded the jury's province of assessing the witnesses' demeanor when she said, '[E]ven the best actor or actress could not tremble with fear as continuously as some of these witnesses did.' The prosecutor asserted that each witness testified consistently with all the others, and therefore that proved to the jury that their testimony was not part of a 'diabolical plan to frame (defendant)....The prosecutor told the jury that defendant was 'guilty of everything' and had 'consistently abused his family for years, basically beat them into submission.'...The prosecutor, over defense objection, commented, 'That man sitting over there, looking like he is pondering every word that is being said, is guilty.' The prosecutor stated that the only explanation for the testimony was that he was, in fact, guilty." The Court noted that a prosecutor's expression of his or her opinions threatens the fairness and integrity of the fact finding process in two ways, citing U.S. V. Young 470 US 1 - that the comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and thus jeopardizes the defendant's right to be tried solely on the evidence presented at trial, and that the prosecutor's opinion carries with it "the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence."

6. Misstating and Mischaracterizing evidence - During summation the prosecutor repeatedly mischaracterized the statement made by the defendant to a CPS caseworker.

People v. Presha, 2011 WL 1219258, 2011 NY Slip Op. 02563 (Fourth Dept.) (Monroe County case)

1.. "The prosecutor improperly questioned defendant on cross-examination regarding, e.g., the fact that he impregnated three women within a short amount of time and his failure to pay child support (cites omitted)...Defendants 'may be cross-examined with respect to prior conduct that affects their credibility (cites omitted) but 'persistent questioning of a defendant on collateral matters which tends to impugn his [or her] character without being probative of the crime charged constitutes improper and prejudicial cross-examination' (cites omitted). "

2. "The prosecutor also improperly attempted to refresh the recollection of defendant during cross-examination when in fact she was attempting to place the contents of a certain document in evidence that otherwise was inadmissible (cites omitted)."

3. The prosecutor "remarked during summation that the victim was 'so cute' and the 'most conscientious, respectful kid [she had] ever seen.' Such remarks improperly appealed to the sympathy of the jury (cites omitted and improperly vouched for the credibility of the victim (cites omitted). We thus take this opportunity to admonish the prosecutor that her 'mission is not so much to convict as it is to achieve a just result' (cites omitted)."

People v. Currier 2011 WL 1205723 (Fourth Dept.), 2011 N.Y. Slip Op. 02573 -

The prosecutor improperly circumvented the Sandoval ruling by "cross-examining defendant's girlfriend concerning his arrest record." Unfortunately for Mr. Currier, the incidents of prosecutorial misconduct were not preserved and the Fourth Department declined to review in the interest of justice.

In a recent case I handled, the prosecutor has argued to the jury that a medical witness testified that children are likely to delay reporting, etc. when she never testified to that (and the judge thought I'd elicited that testimony when I had not, and overruled my objection), and that the defendant "ass-raped" the complainant. The prosecutor referred to the jurors as the child's "friends". In an older case involving a complainant named Sparkle, the prosecutor argued that there was no "Sparkle" left.

So, to sum, consider whether the prosecutor's arguments and conduct are:
Bolstering
Vouching
Injecting his/her opinion
Unfairly using strategic delay to disadvantage the defense
Crossing on matters outside the Sandoval
Arguing about defendant's character
Inflaming passion
Inflaming prejudice
Seeking to stir sympathy of the jury
Attempting to offer evidence through improper refreshing
Mischaracterizing/misstating the evidence
Testifying as an unsworn witness
Usurping the province of the jury

New Blog Worth Reading: Hiscock Legal Aid Society Appeals Program Blog

2011-03-30T17:59:00.004-04:00

A new useful addition to criminal law blogs in New York is the Hiscock Legal Aid Society Appeals Program Blog which provides both detailed statistics and case summaries for Appellate Division, Fourth Department decisions.

You Can't Go Your Own Way - The Deliberating Jury

2011-03-30T08:23:00.002-04:00

The CPL requirement that a deliberating jury be "continuously kept together" (CPL 310.10[1]) has had its ups and downs over the last twenty years. People v Coons (75 NY2d 796 [1990]) determined that the failure of the trial court to keep a deliberating jury together was a mode of proceeding error, a category of error which cannot be waived and requires no objection to present an error of law to the Court of Appeals.

Then, in my case, People v Webb, the Court of Appeals said that Coons determined that jury sequestration did not require preservation, but that while it was a mode of proceedings error, this did not mean that it could not be affirmatively waived (78 NY2d 335 [1991]). The defendant in Webb had expressly agreed to sending the jury home. The fact that mode of proceedings errors had been unwaiveable since 1858's Cancemi v People (18 NY 128) did not affect the outcome.

Then came People v Agramonte (87 NY2d 765 [1996]), wherein the Court of Appeals said that Webb clarified Coons, and that preservation was required. Why? Because a mode of proceedings error cannot be waived! Ergo, this type of error must not be a mode of proceedings error, because Webb held that it could be waived. QED "Webb makes plain that the failure to sequester the deliberating jurors does not constitute a fundamental deviation from the proper mode of judicial proceedings." Ultimately, this was vitiated by Legislative changes allowing trial courts to send home deliberating jurors. But while the jury was actually deliberating, it has always been clear that they had to do so together.

Until now.

The Court of Appeals has just decided People v Robert Kelly (#58 decided 3/24/11). In Kelly, one juror had to be separated from the rest due to child care issues, and no instruction was given to the remaining jurors to cease deliberations. It is improper for the jury to deliberate if they are not all together. However, the court held "there was no mode of proceedings error dispensing with the preservation requirement because the brief, momentary separation of the juror from deliberations was not the type of violation contemplated by the 'continuously kept together' language of CPL 310.10". If CPL 310.10 was worded differently (perhaps "continuously kept together, and this means no brief momentary separations of jurors, dammit") then it would be a type of non-kept-togetherness contemplated under the statute.

Therefore, if one or more jurors are separated from the rest during deliberations, you need to object to preserve the error for appeal.

What Should Asssigned Appellate Counsel Do When the Only Issues Risk Worse Outcomes for the Client?

2011-03-27T15:42:00.003-04:00

Assigned appellate counsel, who upon a review of the record conclude that there are no non-frivolous issues, may move to be relieved of the assignment (People v Crawford, 71 AD2d 38). As I asked in a post in 2008, what do you do when the only non-frivolous issue is one that could hurt your client? For example, what if the sentence imposed was unlawfully short? Does an attorney have to file a brief challenging the sentence as unlawful? (See, People v Ammons (41 AD3d 1325)).

What if the client entered a plea to a lesser offense and already served the entire sentence and you see a possible issue regarding the plea? If you raise the issue regarding the plea and win your client faces the potential of a more serious conviction and more time. What if you are unable to get a response from your client as to what to do?

The Second Circuit provides one answer. In United States v. Ibrahim (62 F.3d 72 [2d Cir. 1995]) the Court held that where the defendant has not requested that appellate counsel challenge the validity of a plea and has not made such a challenge in a pro se brief, counsel can file an Anders brief which should either state that counsel believes that defendant would run unacceptable risk of adverse consequences in challenging the validity of the plea or discuss why there are no non-frivolous issues regarding the validity of the plea.

The Fourth Department has no clear holding guiding counsel. This situation presented itself in People v Phelps, 2011 NY Slip Op 02333 [4th Dept 3/25/11]. Ms. Phelps was convicted upon a guilty plea of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]), and was sentenced to a determinate term of imprisonment of four years and five years postrelease supervision, to be served concurrently with a determinate sentence imposed on the same date for a separate felony conviction. However, because Ms. Phelps committed that offense while awaiting sentence on the prior offense, the concurrent sentences might have been illegally imposed (see Penal Law § 70.25 [2-b]).

Thus, counsel faced a dilemma. If the sentence was challenged as illegal, Ms. Phelps could face the imposition of a longer sentence. So counsel filed a Crawford motion rather than risking the client receiving more time.

Was that the right approach? The Appellate Division, Fourth Department, held that it was not. The Court wrote “that a nonfrivolous issue exists as to whether concurrent sentences were illegally imposed (see Penal Law § 70.25 [2-b]). Therefore, we relieve counsel of his assignment and assign new counsel to brief this issue, as well as any other issues that counsel's review of the record may disclose.” What should the nest assigned counsel do, other than rasie an issue which might result in the client receiving a longer sentence?

Three possibilities come to mind. First, the attorney might advise the client that the choices are to (1) raise the sentencing issue which might result in a longer sentence; (2) seek to have the plea vacated if it was co ndtioned on the illegal sentnece (which might result in a conviction to the same [or, if it was plea to a reduced charge, higher offense] and a longer sentence; or if those alternatives are undesirable, (3) stipulate to discontinue the appeal.

Then counsel can follow the client’s preference. If the client fails to respond, after repeated communications, counsel can file a motion to dismiss the appeal for abandonment, rather than an Anders-Crawford motion.

Brady v Maryland - Outline of leading cases applying Brady rule

2011-03-26T15:33:00.005-04:00

BRADY OUTLINE (March 23, 2011)

by Jill Paperno, Special Assistant Monroe County Public Defender

BRADY V. MARYLAND, 373 U.S.83 – Turnover of information is a requirement of 14th Amendment due process “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” nb – Court did not say it had to be exculpatory, though DA’s will make the claim it does.

KYLES V. WHITLEY, 514 U.S. 419 – From the case syllabus: “…(F)avorable evidence is material, and constitutional error results from its suppression by the government, if there is a “reasonable probability” that, had the evidence been disclosed to the defense, the result of the proceeding would have been different…One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict…(T)he state's disclosure obligation turns on the cumulative effect of all suppressed evidence favorable to the defense, not on the evidence considered item by item. (cites omitted). Thus, the prosecutor, who alone can know what is undisclosed, must be assigned the responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of “reasonable probability” is reached. Moreover, that responsibility remains regardless of any failure by the police to bring favorable evidence to the prosecutor's attention. To hold otherwise would amount to a serious change of course from the Brady line of cases.”

PEOPLE V. BRYCE 88 NY2d 124 – (Failure to preserve and turn over significant exculpatory forensic evidence) “Under the New York rule, if a general demand has been made, evidence will be deemed material if there is a reasonable probability that had it been disclosed to the defense, the result would have been different-i.e., a probability sufficient to undermine the court's confidence in the outcome of the trial (cites omitted). The rule applies regardless of the good or bad faith of the prosecutor, for its purpose is not to punish misconduct but to insure that the accused receives a fair trial (cites omitted).” “Notably, in rejecting defendant's claim of prejudice at that time, the Appellate Division stated that defendant had made no claim the evidence was exculpatory (174 A.D.2d at 947, 571 N.Y.S.2d 638, supra ). Indeed, defendant could not have made such a claim before seeing the skull.”

PEOPLE V. BAXLEY 84 NY2d 208 – (Failure of prosecutor to turn over prior statement of informant stating other informant witness was induced to falsely testify by promise of leniency) “A prosecutor's duty of disclosing exculpatory material extends to disclosure of evidence impeaching the credibility of a prosecution witness whose testimony may be determinative of guilt or innocence (cites omitted). Clearly, Washington (a witness who was described by witness Youman as having given a false statement) was such a witness at defendant's trial, and nondisclosure cannot be excused merely because the trial prosecutor genuinely disbelieved Youmans' recantation. The “good faith” of a prosecutor is not a valid excuse for nondisclosure ( Giglio v. United States, supra ).”

PEOPLE V. CWIKLA 46 NY2d 434 – (Prosecutor’s failure confirm correspondence in support of informant’s application for parole) “A prosecutor is under a duty to disclose to defense counsel correspondence between the office of the District Attorney and the Parole Board advising of the co-operation of a principal prosecution witness in the trial of the witness' accomplices and expressing the hope that such co-operation will be taken into account when the witness is considered for parole.”
“It is fundamental that material evidence which is in the possession of the prosecution and which is exculpatory in nature must be turned over to the defendant in order to give meaning to the constitutional right to a fair trial (citing Brady) It is equally true that “(w)hen the ‘reliability of a given witness may well be determinative of guilt or innocence’, nondisclosure of evidence affecting credibility falls within this general rule.” (cites omitted) The existence of an agreement between the prosecution and a witness, made to induce the testimony of the witness, is evidence which must be disclosed under Brady principles (cites omitted).”

PEOPLE V. DOSHI 93 NY2d 499 - (Not Brady violation when prosecution did not turn over billing records defendant generated) “The Brady doctrine requires prosecutors to turn over material exculpatory to defendants (cite omitted). Brady does not, however, require prosecutors to supply a defendant with evidence when the defendant knew of, or should reasonably have known of, the evidence and its exculpatory nature (cite omitted).”

PEOPLE V. HUNTER 11 NY3d 1 - (Prosecution failed to disclose complainant had accused another man of date rape before defendant’s trial in which he was accused of date rape) “If the information known to the People when this case was tried was ‘favorable to [the] accused’ and ‘material’ within the meaning of Brady, defendant had a due process right to obtain it, and that right could not be nullified by post-trial events.” nb – court considers possibility that this evidence would have been admissible in discretion of trial court.

PEOPLE V. SANTORELLI, 95 N.Y.2d 412 – (Good language, bad decision – failure to turn over federal records not in possession of prosecutor not Brady violation.) “A prosecutor must ‘learn of any favorable evidence known to the others acting on the government's behalf in the case’ and promptly disclose any such material evidence to the defendant (cites omitted)….Thus, this Court has charged the People with knowledge of exculpatory information in the possession of the local police, notwithstanding the trial prosecutor's own lack of knowledge ( see, People v. Wright, 86 N.Y.2d 591, 598, 635 N.Y.S.2d 136, 658 N.E.2d 1009; see also, People v. Novoa, 70 N.Y.2d 490, 498, 522 N.Y.S.2d 504, 517 N.E.2d 219 [prosecutor was delinquent in failing to ‘discover and disclose’ terms of cooperation agreement entered into between a trial witness and Special Prosecutor] ). The duty to disclose information in these circumstances, of course, cannot be greater than the power to acquire it.”

PEOPLE V. STEADMAN 82 NY2d 1 – (DA fails to disclose deal made by other prosecutor in the office for leniency to cooperating informant.) “The prosecutor's duty is not lessened because Brady material may affect only the credibility of a government witness. Indeed, we have held explicitly that the duty includes promises of leniency given to the witness in exchange for favorable testimony against an accused (cites omitted). Moreover, the prosecutor's duty extends to correcting mistakes or falsehoods by a witness whose testimony on the subject is inaccurate (cite omitted)… In the final analysis, however, it does not matter whether the trial assistants were genuinely unaware of the arrangement or not. A prosecutor's obligations to correct false testimony given by prosecution witnesses and to disclose Brady material are duties exercised by individual prosecutors and shared by the prosecutor's office as a whole. Promises made to a defendant by one prosecutor are generally binding on others in the criminal law enforcement system and certainly promises made by a superior are binding on subordinates in the same office.”

PEOPLE V. VALENTIN 1 AD 3d 982, Fourth Dept. 2003 – “The criminal record of a prosecution witness constitutes exculpatory material within the meaning of Brady (cites omitted). That rule accords with the principle that the People's disclosure obligations under Brady extend beyond matters that tend to establish defendant's innocence and include material evidence that impeaches ‘the credibility of a prosecution witness whose testimony may be determinative of guilt or innocence’ (cites omitted)…It is not determinative that the prosecutor denied any contemporaneous actual knowledge of the eyewitness's criminal convictions as a consequence of his self-professed standard practice of not checking into such matters. ‘The requirement that the Brady material be in the People's possession or control * * * has not been interpreted narrowly’ (cites omitted) “A prosecutor must ‘learn of any favorable evidence known to the others acting on the government's behalf in the case’ and promptly disclose any such material evidence to the defendant” (cites omitted). Here, the criminal record of the eyewitness was readily available to the prosecutor and certainly known to other individuals in his office who recently had prosecuted the eyewitness (cite omitted). We nonetheless conclude under the circumstances of this case, in which there was no specific request for the exculpatory material in question, that there is no “reasonable probability” that the verdict would have been different had the material been disclosed to the defense and presented to the trier of fact (cites omitted). (But note – a federal habe was granted in this case. See Valentin v. Mazzuca, 2011 WL 65759, in which U.S. Magistrate Judge Bianchini says the DAs cannot be ostriches and other wonderful things.

PEOPLE V. VILARDI, 76 NY 2D 67 – (Failure of prosecutor to turn over exculpatory report of arson investigator) Court reviews history of Brady and its progeny at Federal level, and finds New York grants greater protection to defendants if there is a specific request for Brady material. “We agree with the Appellate Division that a showing of a ‘reasonable possibility’ that the failure to disclose the exculpatory report contributed to the verdict remains the appropriate standard to measure materiality, where the prosecutor was made aware by a specific discovery request that defendant considered the material important to the defense.”

PEOPLE V. WRIGHT 86 NY2d 592 – (Failure to inform defense that complainant was a police informant in assault case in which officers’ testimony differed pre-trial and at trial was violation.)“This case presents the question whether the People's failure to inform the defendant that the complainant had previously operated as an informant for the local police department violated defendant's right to due process. We conclude that the People were required to disclose this information pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 and therefore reverse defendant's conviction.” “Had defendant been armed with the knowledge that Washington was an informant for the same police department that employed Keane and Walczak, she could have presented the jury with a motive for them to favor Washington. Like evidence tending to affect credibility, evidence establishing such a motive for prosecution witnesses to corroborate the complainant falls within the ambit of the Brady rule ( see, Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104, supra; People v. Novoa, 70 N.Y.2d 490, 496, 522 N.Y.S.2d 504, 517 “

***Use the above cases to support your argument that Brady applies for trial and sentencing, that the DA cannot avoid the information or choose not to turn it over because they don’t believe it, it includes evidence going to the reliability and credibility of witnesses as well as other conduct (See Hunter) such as priors and cooperation agreements (and even agreements to put in a good word – See Cwikla- but if you knew or should have known about it it may not be a violation. A specific request is also better than a general request. Requests must be made on the record for an appellate court to be aware of them.

Important Decision on 30.30 Motions and Preservation of Claim

2011-03-26T13:03:00.002-04:00

by
Drew R. DuBrin, Special Assistant Monroe County Public Defender

The Court of Appeals has just decided an important decision on what a defendant must do to preserve his claim that a period of unreadiness is not excludable from the 30.30 calculation.

As you know, in moving to dismiss on CPL 30.30 grounds, the defendant bears the burden of alleging in her motion papers a period of excessive pre-readiness and/or post-readiness delay . If the defendant meets that motion practice burden, the burden then shifts to the People to allege periods of delay that are excludable from the 30.30 calculation. Delay that can be excluded is set forth under 30.30's subdivision 4.

In People v Beasley(__ NY3d _ , [3/24/11) , the Court of Appeals held that where the defendant has alleged in his motion papers a specified period of delay (in this case, it was delay caused by the People’s failure to provide the court with grand jury minutes, an impediment tot he People’s readiness for trial), the People respond to the defendant’s motion allegations by contending that the entire period of alleged delay is excludable from the calculation (in this case, pursuant to 30.30 [4] [a], the period of delay during which the defendant’s motion to dismiss on the grand jury minutes was pending), and the defendant does not reply to the People’s answering affirmation by arguing in the alternative that a particular portion of that entire period of delay is not excludable, the defendant will have failed to preserve for appellate review the alternative argument that the particular portion of the alleged delay is not excludable. The Court explained, “it was defendant’s duty, either in its initial submission or in a reply, to draw the court’s attention to the discrete periods that he now claims should have been chargeable to the people pursuant t CPL 30.30 and to explain why.”

Practice Commentary: The first lesson to be learned from this decision is that your 30.30 job may not done when you make your 30.30 motion to dismiss by simply alleging an excessive period of delay, without alleging in your papers why specific periods are not excludable. If the People in turn respond by alleging that certain periods are excludable, those periods will be deemed excludable unless you follow-up by submitting additional papers disputing that the period alleged to be excludable is not excludable and explaining why. Second, the appellate court will only consider not excluding the periods you specifically allege to be not excludable. If you argue that from January to July is not excludable because the People’s delay in responding to your omnibus motion was “unreasonable,” the appellate court will consider only whether that entire period was not excludable. It will not consider, for example, the alternative argument that the shorter period from May to July was not excludable as being unreasonable delay.

Certiorari Petition Filed in People v Battles

2011-03-22T20:15:00.003-04:00

In December 2010 I wrote about the en banc decision of the Second Department in Portalatin v. Graham (624 F3d 69 [2d Cir 10/18/10])and the companion cases holding that the New York's decision upholding the New York PFO sentencing statutes "the state courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the convictions." (here)

In that post, I also reviewed the decision of the New York Court of Appeals in People v Battles (16 NY3d 54 [12/14/10]), in which that Court once again rejected a challenge to the constitutionality of New York's persistent Felony Offender sentencing laws, I suggested that Battles provided a glimmer of hope becauseChief Judge Lippman wrote a strong dissent in which he first pointed out that the Court in Portalatin did not "decide not whether the state court correctly interpreted the doctrine of federal law on which the claim is predicated, but rather whether the state court's interpretation was unreasonable in light of the holdings of the United States Supreme Court at the time." Then, Chief Judge Lippman wrote that there is no material difference between the California statute struck down by the United States Supreme Court in Cunningham v California (549 US 270 [2007]) "and our persistent felony offender sentencing statutes." I wrotw that Chief Judge Lippman's dissent suggests that there is a chance that the Supreme Court would grant a petition for certiorari and then strike down New York's PFO sentencing statutes.

I'm writing now to report that on March 21, 2011 the United States Supreme Court denied petitions for certiorari in Portalatin v. Graham and the companion cases, challenging the constitutionality of New York's Persistent Felony Offender sentencing law in the context of habeas corpus proceedings. However, review of the constitutionality of New York's Persistent Felony Offender sentencing law is still being sought in the certiorari petition filed on March 10, 2011 in the direct appeal in People v Battles

CONVICTION OF USER OR ADDICT IN POSSESSION OF A FIREARM DOES NOT REQUIRE ONE TO BE DETAINED AFTER PLEA OR VERDICT OF GUILTY

2011-03-08T13:46:00.002-05:00
by
Mark D. Hosken, Supervisory - Assistant Federal Public Defender, WDNY

A defendant enters a guilty plea or is found guilty after trial of being a user or addict in possession of a firearm in violation of 18 U.S.C. §922(g)(3). The prosecutor moves the Court to remand the individual into custody pending sentencing. The government contends 18 U.S.C. § 3143(2) requires such detention as such possession is a crime of violence under 18 U.S.C. § 3142(f)(1)(A). You recall something about felon in possession [18 U.S.C. § 922(g)(1)] being a crime of violence, but you can’t remember anything about an addict in possession meeting that definition. You are correct. It hasn’t been found to be a crime of violence in the Circuit. Thus, the mandatory remand provision is inapplicable to one convicted of 18 U.S.C. § 922(g)(3).

The Bail Reform Act in 18 U.S.C. § 3143(a)(2) normally requires the defendant’s remand into custody at the time of plea. That necessitates a finding that one was convicted of an offense described in § 3142(f)(1)(A), (B), or (C). Subsection (A) is the one that is most applicable. That includes those offenses designated as a “crime of violence.” “Crime of violence” is defined in 18 U.S.C. § 3156(a)(4). Again, the most applicable sections would be subsections (A) & (B) to § 3156(a)(4).

In United States v. Dillard, 214 F.3d 88 (2d Cir. 2000), a panel of the Second Circuit held that felon in possession of a firearm [18 U.S.C. § 922(g)(1)] is a crime of violence for purposes of the Bail Reform Act. Such conclusion would normally require the Court to remand the defendant into custody at the time of his plea of guilty to felon in possession of a firearm. However, the Second Circuit has not decided whether the separate offense of user or addict in possession of firearm is a crime of violence pursuant to § 3156(a)(4). The only decided case I could locate which held that user in possession of a firearm is a crime of violence is unpublished. It is United States v. Ditrapano, 2006 WL 1805848 (S.D.W.Va, 2006). Though Ditrapano held user or addict in possession to be a crime of violence, there was no analysis of the statute supporting the conclusion that user in possession of a firearm is a “crime of violence.” The district court simply relied on the Second Circuit’s rationale in the Dillard case. Such analysis does not logically apply to user in possession prosecutions. Most of the Dillard opinion was devoted to the ills of society (i.e., danger) by convicted felons having firearms. That is not usually present in the addict in possession case.

Congress amended the detention statute in 2006 as part of the Adam Walsh Act. A new subsection (E) was added to 18 U.S.C. § 3142(f)(1). It permits the government to move for detention in a case that involves “any felony that is not otherwise a crime of violence that involves a minor victim or that involves a possession or use of a firearm . . . .” This section was added to address the circuit split over whether a felon in possession charge was a crime of violence for purposes of the Bail Reform Act. The amended section includes the charge of user in possession of a firearm regardless if it is determined to be a crime of violence or not. Simply put, the government has a separate basis to seek detention for anyone charged with a felony firearm offense: § 3142(f)(1)(E).

18 U.S.C. § 3143(a)(2) requires the defendant’s remand into custody when convicted of certain offenses. That mandatory remand section only applies to those found guilty of offenses under § 3142(A), (B), or (C). Unless one is convicted of a crime of violence or another statutory crime under those subsections, he is not required to be detained upon plea or verdict. Here, it must be assumed that Congress meant what it said when it created § 3142(f)(1)(E). There is no reason that individuals convicted of those offenses in subsection (E) be mandatorily remanded. Those offenses identified in § 3142(f)(1)(E) are specifically excluded from those cited in the mandatory remand section [§ 3143(a)(2)].

An addict in possession of a firearm is not convicted of a crime of violence as defined under the Bail Reform Act. Thus, such conviction does not qualify as an offense requiring mandatory remand under 18 U.S.C. § 3143(a)(2). Assuming your client is not likely to flee or pose a danger to the safety of any other person or the community and the Court makes such finding, he should be continued on the previous conditions of release.

Can the Judge judge your case?

2011-03-02T19:26:00.006-05:00
by Jill Paperno,
Special Assistant Monroe County Public Defender

As many of you know, the judge you start with in a case is not always the judge you end with. There are rules governing which judges may handle which cases, and the circumstances in which cases may be transferred. You may wish to object to assignment of a judge on your case on one of several grounds - either the judge is not authorized by law to sit on the case based on the court in which the judge is actually elected to serve, or the case was transferred without the proper order, or the transfer is for reasons not authorized by law.

1. Can the judge take the type of case?

The Judiciary Law permits the Chief Administrative Judge to temporarily assign judges to courts. That authority is limited by the New York State Constitution, Article 6, Section 26. That section includes limitations on which judges may handle which cases. The full section is below. Notably, as set forth in subsection (j)(2) a City Court judge can sit as a County Court judge, but not as a Supreme Court Judge. So if a City Court judge is authorized to sit as County Court, they may not be authorized to pick up a Supreme Court case. You can object based on the State Constitution provisions.

2. Can the judge take the case if it is transferred between courts?

In order for a case to be transferred from one court to another, there has to be an order in place. We don't usually see these orders, but perhaps we ought to start asking for them. The one I got yesterday doesn't seem to reflect that the case was transferred from Supreme to County, so maybe there's an issue here. According to the Fourth Department in People v. Adams, 74 AD 3d 1897, "defendant (was) correct that, in order to remove a criminal action from County Court to Supreme Court, the Uniform Rules for the New York State Trial Courts require that such removal be authorized by the Chief Administrator and that it occur prior to the entry of a plea or commencement of trial (see 22 NYCRR 200.14). Neither condition was met here, and thus ASCJ Griffith had no authority to preside over sentencing, rendering the sentence illegal."

Although a judge may have lots of experience, that doesn't address the issue raised by Adams. Here's the language of the order in a recent case, and the language I believe all these orders probably use: Pursuant to the authority vested in me, I hereby order that the Hon. Jane Doe, City Court Judge, City of Rochester be (sic) and hereby is assigned temporarily to County Court, County of Monroe to hear and determine the following matter: (name of case and docket number which is really the indictment number); this assignment is in addition to his other duties and assignments. The Hon. Jane Doe shall preside over this matter until it is concluded."

This language doesn't seem to transfer the case from Supreme to County. Additionally, this case won't be staying with Judge Doe, so I'm assuming there won't be a transfer order back. Interestingly, Adams notes that this issue doesn't have to be preserved for appeal.

3. Can the judge take the case - 22 NYCRR 200.14?

This section of NYCRR sets forth the rules for assignment of cases to judges. It states, "Except as provided in subdivision (b) of this section, upon commencement of a criminal action in the superior court, the action shall be assigned to a judge by the clerk of the court in which it is pending pursuant to a method of random selection authorized by the Chief Administrator. The judge thereby assigned shall be known as the 'assigned judge' with respect to such action and, except as otherwise provided in subdivision (d) of this section, shall conduct all further proceedings therein.

Subdivision (d) lists four exceptions Here they are:

(1) Where the requirements of matters already assigned to a judge are such as to limit the ability of that judge to handle additional cases, the Chief Administrator may authorize that new assignments to that judge be suspended until the judge is able to handle additional cases.

(2) The Chief Administrator may authorize the assignment of one or more special reserve trial judges. Such judges may be assigned matters for trial in exceptional circumstances where the needs of the courts require such assignment.

(3) Matters requiring immediate disposition may be assigned to a judge designated to hear such matters when the assigned judge is not available.

(4) The Chief Administrator may authorize the transfer of any action and any matter relating to an action from one judge to another in accordance with the needs of the court.

I don't know if the orders that are being used address which exception led to the transfer, and if the order doesn't specify, perhaps the orders are inadequate and the transfers are improper.

The temporary assignment of judges provision of the Constitution mentioned above:

a. A justice of the supreme court may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in any judicial district or to the court of claims. A justice of the supreme court in the city of New York may be temporarily assigned to the family court in the city of New York or to the surrogate's court in any county within the city of New York when required to dispose of the business of such court.

b. A judge of the court of claims may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in any judicial district.

c. A judge of the county court may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in the judicial department of his or her residence or to the county court or the family court in any county or to the surrogate's court in any county outside the city of New York or to a court for the city of New York established pursuant to section fifteen of this article.

d. A judge of the surrogate's court in any county within the city of New York may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in the judicial department of his or her residence.

e. A judge of the surrogate's court in any county outside the city of New York may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in the judicial department of his or her residence or to the county court or the family court in any county or to a court for the city of New York established pursuant to section fifteen of this article.

f. A judge of the family court may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in the judicial department of his or her residence or to the county court or the family court in any county or to the surrogate's court in any county outside of the city of New York or to a court for the city of New York established pursuant to section fifteen of this article.

g. A judge of a court for the city of New York established pursuant to section fifteen of this article may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in the judicial department of his or her residence or to the county court or the family court in any county or to the other court for the city of New York established pursuant to section fifteen of this article.

h. A judge of the district court in any county may perform the duties of office or hold court in any county and may be temporarily assigned to the county court in the judicial department of his or her residence or to a court for the city of New York established pursuant to section fifteen of this article or to the district court in any county.

i. Temporary assignments of all the foregoing judges or justices listed in this section, and of judges of the city courts pursuant to paragraph two of subdivision j of this section, shall be made by the chief administrator of the courts in accordance with standards and administrative policies established pursuant to section twenty-eight of this article.

j. (1) The legislature may provide for temporary assignments within the county of residence or any adjoining county, of judges of town, village or city courts outside the city of New York.

(2) In addition to any temporary assignments to which a judge of a city court may be subject pursuant to paragraph one of this subdivision, such judge also may be temporarily assigned by the chief administrator of the courts to the county court, the family court or the district court within his or her county of residence or any adjoining county provided he or she is not permitted to practice law.

k. While temporarily assigned pursuant to the provisions of this section, any judge or justice shall have the powers, duties and jurisdiction of a judge or justice of the court to which assigned. After the expiration of any temporary assignment, as provided in this section, the judge or justice assigned shall have all the powers, duties and jurisdiction of a judge or justice of the court to which he or she was assigned with respect to matters pending before him or her during the term of such temporary assignment.

These are some of the provisions to keep in mind whenever there is a change of judge.

Reckless Driving Causing Death Held Not To Be Depraved Indifference Murder

2011-02-24T19:36:00.005-05:00
by
Drew R. DuBrin,
Special Assistant Monroe County Public Defender

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

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

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

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

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

30.30 and Superceding Accusatory Instruments

2011-02-24T19:24:00.004-05:00
by

Dre R. DuBrin, Special Assistant Monroe County Public Defender

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

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

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

Eavesdropping Warrant Requirement

2011-02-23T20:13:00.003-05:00
On February 15th, the Court of Appeals decided People v Rabb and People v Mason (_NY3d_, 2011 NY Slip Op 01050 [2/15/11]). It reviewed a determination of the Appellate Division that requirements for an eavesdropping warrant had been met in a racketeering investigation into a labor coalition which had been alleged to engage various coercive tactics. The requirements, set forth in CPL 700.15 (4), are that an eavesdropping warrant application must demonstrate that normal investigation procedures had been tried and proven to be unsuccessful, were reasonably unlikely to succeed if tried, or were too dangerous to employ.

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

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

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

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

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

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

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

Attorneys Have Duty To Advise Client Whether To Accept Plea Offer

2011-02-23T16:29:00.004-05:00
In Young v Zonn ( __ 2011WL 1:04-cv-00363 [WDNY 02/18/11]), a habeas petition was granted based on failure of defense counsel in an Erie County prosecution to give adequate advice to his client as to whether he recommended that the client accept the plea offer. The court explained that

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

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

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

Important Right To Counsel Holding

2011-02-22T21:26:00.004-05:00
In People v Lopez (_NY3d_, 2011 NY Slip Op 01316 [2/22/11]) the Court of Appeal, considerered whether the right to counsel, as set forth in People v Rogers (48 NY2d 167 [1979]), was violated by police interrogation of a defendant in custody in Pennsylvania pending prosecution on Pennsylvania charges, who wasrepresented by a Pennsylvania attorney who had entered that case was lawful where the police, where the police, having never asked, did not knwo that the defendant had counsel By a 4-3 vote the Court held the officer should have been deemed chargeable with knowledge of that representation and entry.

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

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

2011-02-10T21:23:00.006-05:00
There was widespread outrage at the conduct of Nushawn Williams, who was alleged to have had unprotected sex with numerous girls and women despite being told he was HIV positive (see). This failure to inform the women that they risked not merely pregnancy or an STD, but rather a potentially fatal infection, without cure, meant that the sexual encounters were not truly consensual. Indeed, now that Mr. Williams is completing his sentence for a conviction by guilty plea for the statutory rape of two of these women, New York is attempting to have Mr. Williams civil committed as a detained sex offender requiring confinement pursuant to the Sex Offender Management and Treatment Act (SOMTA)(see).

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

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

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

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

2011-02-10T20:36:00.007-05:00
In People v Campbell (2011 NY Slip Op 00813 [4th Dept 2/11/11]) the Court held that it was error to summarily deny a motion pursuant to CPL 440.10, based on the contention that the defendant was denied effective assistance of counsel because his trial attorney had failed to inform him of potentially exculpatory evidence, i.e., that before the murder an inmate at a state prison had advised the District Attorney that he had information concerning a plot to murder the victim that implicated persons other than defendant.

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

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

Escape From an Unauthorized Arrest is Not An Escape

2011-02-10T20:11:00.004-05:00
Pursuant to Executive Law § 259-i(3)(a)(i)and 9 NYCRR 8004.2, a parole officer is required to obtain a warrant before arresting a parolee for an alleged parole violation. There is currently no statutory exception to that warrant requirement
So what if pursuant to a verbal order from a Senior Parole Officer, a parole Officer, without a warrant, arrests and and shackles a reporting parolee when he arrived at the parole office. and them after the senior parole officer finished processing the necessary forms to obtain a warrant after defendant was taken into custody, the shackled parolee escaped. Is that Escape in the First Degree?

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

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

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

2011-02-10T19:42:00.006-05:00
Both the United States Supreme Court and the New York Court of Appeals have held that once a defendant chooses to be represented by counsel, counsel and not the defendant has control over most strategic decisions are made by the attorney and not the defendant (Jones v Barnes, 463 US 745, 751 [1983]; People v White, 73 NY2d 468, 478 [1989]). However, there are a few decisions that are so critical that they can be made only by the client. These decision that can only be made by the defendant, upon the advise of counsel, are whether to plead guilty, whether to waive a jury trial, whether to testify at trial and whether to appeal(Jones v Barnes, at 751; White, at 478)

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

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

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

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

Spelled Just As It Sounds: 2 gs, 2 zs, and 2 ts.

2010-12-31T16:16:00.005-05:00
David Juergens, after taking a thirteen year hiatus from working on criminal appeals, obtained reversals of two convictions for a single client, one for burglary after a trial and the other for criminal possession of a weapon after a guilty plea (see, People v Williams,2010 NY Slip Op 09663 [Appeal number 1, 4th Dept 12/30/10] and People v Williams,2010 NY Slip Op 09663 [Appeal number 2, 4th Dept 12/30/10]).

The primary substantive issue on the appeal from the burglary conviction was whether the money seized from his pocket by a police officer should have been suppressed as the fruit of an unlawful arrest. First, the Court found that the police were justified in stopping defendant's vehicle for a speeding violation, and in thereafter asking defendant to produce his license and registration and to exit the vehicle. However, the three judge majority found that

The officers who conducted the traffic stop, however, "went beyond merely ordering defendant from his car. [They] took the additional protective measures' of frisking defendant, handcuffing him and placing him in a police car . . . [S]uch an intrusion amounts to an arrest[,] which must be supported by probable cause" (Johnson, 102 AD2d at 626; see People v Brnja, 50 NY2d 366, 372). At the time of the stop and arrest of defendant, "[n]o probable cause yet existed to arrest him on burglary charges for[,] although the police had reports of possibly suspicious behavior, they had no knowledge [that] a burglary had even been committed" (People v Randall, 85 AD2d 754, 754-755; cf. People v Hicks, 68 NY2d 234, 241). The officers were not at liberty to detain defendant while other officers attempted to determine whether a burglary had in fact been committed, i.e., "until evidence establishing probable cause could be found" (People v Battaglia, 82 AD2d 389, 396 [Hancock, J., dissenting], revd on dissent of Hancock, J. 56 NY2d 558; see People v Nicodemus, 247 AD2d 833, 836, lv denied 92 [*2]NY2d 858).
Because the arrest of defendant was illegal, the money seized from his pocket must be suppressed as flowing directly from the illegal arrest. Further, "[i]t cannot be said that the money found on defendant . . . [was] the product of a source independent of the defendant's detention or that the illegal activity was attenuated by a significant intervening event which justified the conclusion that [such] evidence was not the product of the illegal activity" (Battaglia, 82 AD2d at 397 [internal quotation marks omitted]).

A fourth Justice agreed with this holding, but disagreed with the majority's conclusion that the error in refusing to suppress the evidence was not harmless beyond a reasonable doubt. Presiding Justice Scudder would have held that this was a a legitimate stop pursuant to People v Hicks, 68 NY2d 234.

But this Fourth Amendment holding is not the real subject of this post. Rather, I am writing to highlight both the ground for the reversal of the weapons conviction and to implore trial court attorneys to learn an important lesson from this reversal.

The Appellate Division's reversal on the weapons conviction was because that plea was induced by the promise that the sentence would run concurrently with the sentence imposed upon the prior conviction in the Burglary case. As the Court explained

Because we are reversing that prior judgment of conviction, the judgment in appeal No. 1 must be reversed, the plea vacated and the matter remitted to Supreme Court for further proceedings on the indictment (see People v Fuggazzatto, 62 NY2d 862).

The Fuggazzatto rule is a simple one - if a defendant is convicted on one indictment and then enters a plea on a second indictment with a promise that he will receive concurrent time, a defendant who obtains reversal of the first conviction is also entitled to reversal of the second conviction. However, and this is the lesson for trial attorneys, in order for your client to obtain the benefit of the the holding in Fuggazzatto one must file notices of appeal from both convictions. There is no excuse or strategy that can justify the attorney filing the notice of appeal from the trial conviction and, absent a waiver of the right to appeal, failing to file the notice of appeal from the subsequent plea conviction.

Having been the appellate attorney in cases in which a winning issue was raised from the trial conviction, resulting in reversal, but in which the plea conviction remained solely due to the failure to file a notice of appeal, I can report that client's will not be very appreciative of such a reversal. Instead, they will want to know what can be done about the failure to file a notice of appeal. You don't want to be the attorney who failed to file the required second notice of appeal.

Tactics to Consider in Trying a Child Sex Case

2010-12-18T17:26:00.002-05:00
By Jill Paperno, Second Assistant Monroe County Public Defender

I just finished a child sex offense trial, and I thought I'd share some thoughts. I tried a few different things this trial that you may want to consider (or not):

1. Voir dire:

In voir dire the potential jurors are asked if they can be fair when the case involves young children. I tried explaining more about what it was going to be like - the door will open, a young child will walk in escorted, but then walk up alone. The room is too big, the child is too small, you may not hear the child's voice when they're sworn, the chair is too big, their feet may dangle. You may get a sick feeling in the pit of your stomachs. Because whether or not this happened, children don't belong here. More people decided they couldn't be fair after that.

I also addressed the topic of a supposed expert on "Child Sexual Abuse Accommodation Syndrome" in voir dire - what is science, how to determine if someone is an expert, are they comfortable making the assessment, is anecdotal information scientific, etc.

2. Opening Statement

When I opened I talked about how doctors from the local Child Abuse Advocacy Center often determine that findings are normal in children, but then opine that this determination was consistent with the child having been abused. I talked about how any child - even one of their own, could be seen by such a doctor, and come away with a description of findings consistent with abuse. I also talked about the CSAAS expert would likely conclude that all behavior, anything a child does, is consistent with CSAAS. So no matter whether the child is abused or not, he will conclude the behavior is consistent with CSAAS. I then noted that any defendant starts any case with two witnesses against him, the doctor from the child abuse advocacy center and the CSAAS "expert", whether or not he's guilty.

3. Cross-Examination

As usual, the photos are critical. In my recent case what they showed about the height of the bed and the number of particular toys was of great help in examining the People's witnesses. Always examine the photos. Look for the details. Also, I rarely address the actual act in my cross -just all the circumstances around. Happy to share if you have any questions.

I questioned the kids a lot about the trial preparation they had with the District Attorney and others. Listen to how the prosecutor questions the kids and reinforces the testimony and consider whether you can use that to support a claim that the children were led and reinforced in their version of events.

4. Summation

I began the sum by saying that no juror comes into the courthouse on a child sex offense case saying "I can't wait to acquit." I then told them they must. There are different approaches to summations. I often mention reasonable doubt. In fact, for many of my cases, if I never mentioned reasonable doubt in a summation, I'd have very little to say. It's my chorus.

I again talked about the sadness of a child being in the courtroom - whether or not the events occurred. I acknowledged what it looked like for a kid to be testifying and what it may have felt like for them.

I actually talked about acquitting on a technicality- I think you have to be careful as to how you phrase it, but I talked about the uncertain dates given by the kids perhaps being what some might think of as technicalities, but they go to the reliability of the testimony. So even if the dates weren't proven BRD, they had to acquit.

I told them not to compromise. There were some weaker witnesses and one stronger one. I told them that if they felt there wasn't PBRD with respect to the other kids, but John Doe was a strong witness, they shouldn't say, well he's the strongest, so let's convict on his counts. I suggested that if each case were tried separately, they wouldn't find the evidence in his case to be PBRD, so they shouldn't compare and compromise. (Be careful of this argument - you don't want them to refuse to compromise and convict on the top count. But I thought I had nothing to lose with that argument in this case.)

I also talked about how some of my questions which might be thought of as stupid lawyer tricks weren't intended to trick the kids, but instead show that when they were off the script, they couldn't keep things straight.

At each stage of the case, I talked about how young children may not tell the truth, but may not be intentionally lying, because their perceptions and recollections can be shaped by people they've spoken with, reactions, questions that have been asked, etc. (got a little help from the People's doctor on that one). I also told them I expected the DA might argue that in order to acquit they'd have to find the kids were lying. Then talked about how if the kids weren't intentionally lying, but their memories or testimony were shaped over time by the various factors, their testimony was not reliable, and not the basis for PBRD.

So in this case I talked more directly about the elephants in the room.

5. Miscellaneous

Object to really inflammatory language. Anticipate that the prosecutor will argue "why would they lie" or "what's their motive to lie" and when you lose your motion to preclude on burden shifting answer it in your summation.

(Editors note- Jill (who recently received the Jeffrey A. Jacobs Memorial award for her outstanding work as criminal defense attorney) is too modest to mention that she obtained a complete acquittal on charges involving four children. Brian Shiffrin)

Prudent Counsel Will Continue to Challenge the Constitutionality of New York's Persistent Felony Offender Sentencing Statutes

2010-12-16T20:39:00.010-05:00
Back in March, I wrote about the decision in Besser v Walsh, 601 F3d 163 [2d Cir 3/31/10]) in which the United States Court of Appeals for the Second Circuit struck down New York's persistent felony offender law as unconstitutional, holding that “the New York courts’ upholding of the constitutionality of the New York state persistent felony offender (PFO)sentencing statutes after the United States Supreme Court’s decision in Blakely v Washington (542 US 296 [2004]), was an unreasonable application of clearly established Sixth and Fourteenth Amendment law.”

Probably because I found it depressing, I never wrote about the en banc decision of the Second Circuit in Portalatin v Graham (624 F3d 69 [2d Cir 10/18/10]) which reversed that decision and held that in upholding the New York PFO sentencing statutes "the state courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the convictions."

Yet, in an indirect way, the decision of the New York Court of Appeals in People v Battles (_NY3d_, 2010 NY Slip Op 09160 [12/14/10]), in which that Court once again rejected a challenge to the constitutionality of New York's persistent Felony Offender sentencing laws, suggests that Portalatin is not necessarily the last word on this issue. The reason one see a glimmer of hope is that Chief Judge Lippman wrote a strong dissent in which he first pointed out that the Court in Portalatin did not "decide not whether the state court correctly interpreted the doctrine of federal law on which the claim is predicated, but rather whether the state court's interpretation was unreasonable in light of the holdings of the United States Supreme Court at the time." Then, Chief Judge Lippman wrote that there is no material difference between the California statute struck down by the United States Supreme Court in Cunningham v California (549 US 270 [2007]) "and our persistent felony offender sentencing statutes."

Chief Judge Lippman's dissent suggests that there is a chance that the Supreme Court would grant a petition for certiorari and then strike down New York's PFO sentencing statutes. I recognize that in writing that last sentence I sound like Lloyd in Dumber and Dumber when told by Mary his chances are one in a million (So you're telling me there's a chance... *YEAH!). But since there is a chance, however slight, prudent counsel will continue to raise constitutional challenge to the statutes. Otherwise, if these statutes are eventually overturned one's clients will not be able to directly challenge their unconstitutionally imposed life sentences.

Understand that when you raise such a challenge courts might respond like the court did in United States v Harris, 932 F2d 1529, 1537 (5th Cir. 1991):

Finally, the appellants raise the tired argument that the sentencing guidelines are unconstitutional since they permit the district court to resolve factual disputes without the benefit of a jury. This very contention has been raised before, and consistently rejected. See e.g., United States v. Byrd, 898 F.2d 450, 452-52 (5th Cir. 1990); United States v. Casto, 889 F2d 562, 569-70 (5th Cir. 1989), cert. denied, U.S. , 110 S. Ct. 1164, 1 (1990) [emphasis added]. Accordingly, we do likewise.

Of course, those "tired arguments" were eventually accepted by the Supreme Court in Apprendi v New Jersey (530 US 466 [2000]), Blakely v Washington (542 US 296 [2004]) and Cunningham v California (549 US 270 [2007]).

Can a Defense Counsel Validly Concede Guilt to One or More Counts Over the Defendant’s Objection?

2010-12-13T21:42:00.006-05:00
In People v Colville (2010 NY Slip Op 07185 [2nd Dept. Oct 5, 2010]) the Second Department, without reaching a decision on the issue, engaged in detailed review of the arguments as to whether the decision to submit a lesser included offense is a fundamental one that must be made by the defendant or is a strategic one that can be made by counsel. The Colville court noted that courts have split on this issue, which has not yet been addressed by the New York Court of Appeals. On this issue the Appellate Division, Fourth Department, in People v Taylor (2 AD3d 1306 [4th Dept 2003]) held that "defendant was not denied his right to make a “fundamental decision[ ]” (internal citation omitted) when the court considered a lesser included offense charge after discussing the issue with defense counsel and the prosecutor, without input from defendant.”

What about the related issue of whether defense counsel may validly concede guilt to one of more counts over the defendant’s objection? One might think that such a concession is effectively no different than a guilty plea, and the decision whether to plead guilty is fundamental one for the defendant and not counsel (Jones v Barnes, 463 U.S. 745 [1983]; People v White, 73 NY2d 468 [1989]). Under such reasoning it would seem clear that counsel cannot make such a concession over the objection of the defendant. That position was recently rejected by the Court in Washington v Poole (_F Supp_, 2010 WL 3910176 (WDNY 10/6/10), in denying a petition for a writ of habeas corpus in which Mr. Washington urged that he was denied effective assistance of counsel when his counsel, over Mr. Washington’s objection, conceded Washington was involved in the robbery but disputed whether the handguns used during the robbery were “loaded and operable” so as to make Washington guilty of robbery in the first degree. The Court explained that

In Florida v Nixon, 543 US 175 (2004), the Supreme Court indicated that while defense counsel has an obligation to explain to the defendant a proposed strategy of conceding guilt at the guilt phase of a capital trial, counsel has no further obligation to obtain the defendant's express consent to this strategy. Id. at 189. In Nixon, during the guilt phase of a capital trial, the defense attorney conceded that his client had committed the murder. The strategy there was to establish credibility with the jury by conceding the murder, and then to seek leniency at the sentencing phase. However, the defendant was convicted of the murder and sentenced to death. The state appellate court in Nixon reversed the defendant's conviction and held that trial counsel's concession of guilt, without defendant's express consent, deprived the defendant of his right to the effective assistance of counsel guaranteed by the Sixth Amendment....The United States Supreme Court reversed. First, the Nixon court expressly rejected the proposition-also urged by petitioner here-that a concession of guilt is the functional equivalent of a guilty plea requiring the consent of the accused on the record. ...
Here, Washington has rested his ineffective assistance argument on counsel's failure to obtain his expression consent to the concession-of-guilt strategy, and has argued that prejudice must be presumed in these circumstances. The Supreme Court rejected this proposition in Nixon, holding that defendant must show both that the strategic decision to concede guilt was objectively unreasonable and that the defendant was actually prejudiced by the decision. See, e.g., Sondey v White, No. 05-71831, 2009 WL 4800413, at *24-25 (E.D.Mich. Dec.9, 2009) (“The lesson of Nixon, as reflected in cases decided both before and after that decision, is ‘that counsel's concession of a client's guilt does not automatically constitute deficient performance.’ Young v Catoe, 205 F3d 750, 759 (4th Cir.2000). More specifically, ‘conceding guilt to one count of a multi-count indictment to bolster the case for innocence on the remaining counts is a valid trial strategy which, by itself, does not rise to the level of deficient performance.’ United States v Holman, 314 F.3d 837, 840 (7th Cir.2002).”).

The court's reliance on the Supreme Court's decision in Nixon, a capital case, would be more persuasive if capital case jurisprudence always applies in the non-capital context. But that is not the case. For example, in Beck v Alabama (447 US 625, 638 [1980]) the Supreme Court held that although it would have been constitutional in a non-capital context, a state statute precluding consideration of an appropriate lesser included offense violated due process in a capital case.

Removal of a Prospective Juror for Living in an Almost Exclusively Non-White Neighborhood is a Race Neutral Reason for a Peremptory Challenge

2010-12-01T09:41:00.016-05:00
People v Black (_ NY3d_, 2010 NY Slip Op 08766 [11/3010]) is one of the four cases with Batson issues that the Court considered in People v Hecker. The Court, in part, determined whether the trial court was correct in finding that the District Attorney had put forth a race neutral reason for using a peremptory challenge to remove prospective juror Gordon. The People's reasons for striking Gordon were twofold: she was unemployed and lived in East New York, the neighborhood adjacent to the crime scene.

The trial court determined that these reasons advanced by the People were race neutral and invited defense counsel to argue why it should find these reasons to be pretextual. First, defense counsel noted that East New York is the largest "identifiable neighborhood" in Brooklyn and nothing about Gordon's answers in voir dire suggested that she lived near the vicinity of the crime scene. Next, defense counsel asserted that the unemployment status of Gordon should not be held against them in evaluating their qualifications to serve as jurors.

The Court of Appeals agreed that these were acceptable race neutral reasons, explaining that
A party, for example, might not want a prospective juror who lives in a particular neighborhood or who works in a certain field to sit on the jury because that party believes — for reasons unrelated to the facts of the case — that such individual may have a more sympathetic attitude or view toward the opposing party.
This might not seem all that unusual a holding unless one considers a critical fact not mentioned in the decision: East New York is a large neighborhood in Brooklyn (more than 170,000 residents) that is virtually entirely non-white. According to the 2000 census only about two percent of the residents of East New York are white (see). (For a detailed description of East New York's demographics, see Thabitt, How East New York Became a Ghetto.

Thus, there is a real danger that excusing a juror for living in East New York, in a case in which the crime did not occur in East New York, is functionally no different than excusing a juror for being non-white. The Court’s decision utterly fails to discuss how to determine whether the removal of an African American juror for living in an entirely non-white neighborhood was a race neutral reason for exercising a peremptory challenge or simply a race-proxy means for removing a non-white juror.

The need for guidance is particularly great for trial in Brooklyn, a borough comprised of highly segregated neighborhoods, in which two thirds of African Americans live in neighborhoods in which they comprise at least 65% of the population (see). If a prospective juror's neighborhood is always accepted as a race neutral reason for a peremptory challenge, an attorney in Brooklyn can easily remove most African American jurors by stating that the reason for the challenges is the (predominantly African American) neighborhood in which they reside.

In the Batson context, Justice Marshall, long ago recognized the danger that neighborhood might be a proxy for race (Lynn v Alabama, 493 US 945, 947 [1989] [Marshall, J., dissenting from denial of certiorari] [“In a small community with racially identifiable neighborhoods, an individual's address closely corresponds to his or her race”].

Similarly, the Ninth Circuit Court of Appeals, in a case in which the prosecutor exercised a peremptory challenge of a black prospective juror because the neighborhood of her residence would tend to cause her to believe that “police in Compton . . . pick on black people ”, held that “the prosecutor's invocation of residence rested on a stereotypical racial reason”and that “[r]esidence...often acts as an ethnic badge. As study after study has showed, residence, especially in urban centers, can be the most accurate predictor of race” (United States v Bishop, 959 F2d 820, 827-828 [9th Cir 1992]).

Subsequently, however, in Boyde v Brown, (404 F3d 1159, 1171 [9th Cir 2005]) either sharply limited or overruled this holding:
It may be unpersuasive for a prosecutor to use residence without attempting to tie it to the facts of the case. A trial court could consider that lack of explanation when it decides, in Batson's third step, whether to credit the prosecutor's explanation or find that residence was a pretext for what was really a race-based challenge.... (“It is not until the third step that the persuasiveness of the justification becomes relevant.”). To the extent Bishop suggests that the race-neutrality of an explanation depends on its persuasiveness, it has been effectively overruled by Purkett [ v Elem, 514 US 765, 768 (1995)].

Modus Operandi Exception to Molineux Has Limits

2010-11-23T21:06:00.004-05:00
In People v Stubbs (2010 NY Slip Op 08485 [4th Dept 11/19/10]) the Appellate Division, Fourth Department held that the trial court erred in admitting evidence with respect to a prior robbery committed a prior attempted robbery committed by defendant. This evidence had been admitted to establish the identity of defendant based on his modus operandi (see generally People v Molineux, 168 NY 264, 293-294, 313-317). In reversing, the Court explained that
defendant’s method of committing the prior crimes, i.e., traveling to
a retail establishment as a passenger in a motor vehicle and threatening the cashier at that establishment with the use of a nonexistent gun, “was not ‘sufficiently unique to be probative on the issue of identity’ ” (People v Pittman, 49 AD3d 1166, 1167, quoting People v Beam, 57 NY2d 241, 252). Although the prior crimes and the robbery at issue herein were similar to the extent that they were committed on the same road, albeit in different political subdivisions, that fact alone does not render the modus operandi unique. As the Court of Appeals has held, “ ‘the naked similarity of . . . crimes proves nothing’ ” (People v Robinson, 68 NY2d 541, 549, quoting Molineux, 168 NY at 316). In addition, we conclude that the prejudicial effect of the evidence concerning the prior crimes outweighed its probative value (see generally People v Hudy, 73 NY2d 40, 55, abrogated on other grounds by Carmell v Texas, 529 US 513).

When Must A Defendant Be Given the Right to Withdraw a Plea Before a Higher Sentence Than Bargained for May Be Imposed?

2010-11-23T20:11:00.009-05:00
The appellant in in People v Magliocco (2010 NY Slip Op 08471 [4th Dept 11/19/10]) urged that where the court below had informed defendant during the plea proceeding that it would not be obligated to impose the promised sentence, pending its review of the presentence report, and at sentencing the court informed defendant that it was enhancing the sentence based upon that review" the court had "erred in imposing an enhanced sentence without affording him an opportunity to withdraw his plea."

The Appellate Division, Fourth Department, rejected the argument that the defendant had to be given an opportunity to withdraw his plea before the court could enhance the sentence, not for a violation of a condition of the plea, but upon review of the PSI report. First, the Court held that by "failing to object to the enhanced sentence or to move to vacate his plea, defendant failed to preserve his contention for our review." That isn't unusual or the reason for this posting. It is the next sentence in the decision, however, that is an eyeopener: "In any event, "there was no need for [the court] to afford defendant an opportunity" to withdraw the plea before imposing an enhanced sentence inasmuch as the court was not bound by the plea promise upon reviewing the presentence report (People v Figgins, 87 NY2d 840, 841)."

In People v Figgins (87 NY2d 840 [1995]) the Court of Appeals held that "Defendant's failure to appear in court on the scheduled sentencing date constituted a violation of the plea agreement. Therefore, Supreme Court was no longer bound by the plea promise and could properly impose an enhanced sentence."

The question is how does that holding that a defendant who violates a condition of a plea permits a court to impose a higher sentence without affording defendant a chance to withdraw the plea applicable to the issue presented in Magliocco in which the defendant was not alleged to have violated a condition of the plea.

Long ago, in People v Selikoff (35 NY2d 227 [1974]) the Court of Appeals, after noting that "any sentence ‘promise’ at the time of plea is, as a matter of law and strong public policy, conditioned upon its being lawful and appropriate in light of the subsequent presentence report" held hat if upon reviewing a PSI report and learning more about the crime and the defendant the court felt that a greater sentence than promised, the defendant is "entitled to receive" an opportunity to withdraw the plea "since the foundation for the plea, regardless of fault, had proven to be without substance" One wonder how can one reconcile this holding of the Court of Appeals with that of the Fourth Department in Magliocco. One also wonders if 95 percent of all defendants will continue to enter guilty pleas if the court are not bound by their sentence promise and the defendants cannot withdraw their pleas if a higher sentence is imposed than set forth in the plea bargain.

Coram Nobis May Lie Even When CPL 460.30 Time Limits for Seeking Permission to File a Late Notice of Appeal Has Long Passed

2010-10-15T22:02:00.005-04:00
In People v Syville (_NY3d_, 2010 NY Slip Op 07249 [10/14/10])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.

Who Determines Whether to Have the Jury Consider a Lesser Included Offense - Counsel or Defendant?

2010-10-12T07:53:00.004-04:00
In People v Colville (2010 NY Slip Op 07185 [2d Dept 10/5/10]) the Appellate Division, Second Department conducted a thorough review of the cases and commentaries on the question of whether the decision to have the jury consider a lesser included offense is a fundamental one to be made by the defendant or a strategic or tactical one for counsel. As the Court noted
Having accepted the assistance of counsel, a defendant retains authority over certain fundamental decisions (see Jones v Barnes, 463 US 745, 751; People v Colon, 90 NY2d 824, 825; People v White, 73 NY2d 468, 478, cert denied 493 US 859). Strategic and tactical decisions, in contrast, rest with counsel (see People v Colon, 90 NY2d at 826; Arko v. Colorado, 183 P3d 555, 558 [Colo]). The demarcation between the two, however, is elusive (see Government of Virgin Is. v Weatherwax, 77 F3d 1425, 1433, cert denied 519 US 1020).

The Court of Appeals has not yet considered this issue. However, in People v. Petrovich (87 NY2d 961), the Court was presented with a related question: as between the defendant and his counsel, who decides whether the affirmative defense of extreme emotional distress should be submitted to the jury? As the Colville court summarized, The Court of Appeals
held that this decision did not implicate a matter of trial strategy or tactics; rather, it was a fundamental decision and, thus, it fell to the defendant. The Court reasoned, citing to the second edition of the ABA Standards, that a verdict was dispositive of a defendant's fate and the submission of the extreme emotional disturbance defense could be determinative of the verdict. In that sense, as the defendant expressed on the record, eliminating the extreme emotional disturbance defense increased his chances of a full acquittal. Thus, the Court concluded, this was not unlike other fundamental decisions already recognized as belonging to the defendant.

Without explanation, the Appellate Division, Fourth Department in People v Taylor (2 AD3d 1306, 1308 [4th Dept 2003]) cited this holding in Petrovich, as support of its conclusion that a defendant was not deprived of his right to make a fundamental decision when the court considered a lesser-included offense charge after discussing the issue with defense counsel and the prosecutor, without input from the defendant.

So what did the Second Department hold? It concluded that under the facts of the Colville case, in which counsel acquiesced to the defendant's decision not to request submission of lesser-included offenses to the jury, it did not have to reach a decision on this issue, since such acquiescence does not constitute ineffective assistance of counsel even if it was decision to be made by counsel.

Appellate Courts Can Look at Trial Evidence in Reviewing Denial of Motions for Severance

2010-10-03T19:34:00.004-04:00
Generally, appellate courts cannot consider trial testimony in reviewing a decision denying a pretrial motion (People v Gonzalez, 55 NY2d 720 [1981]). An important exception to this rule is that appellate courts can look at the trial evidence in determining whether a motion for severance should have been granted (People v Lopez, 68 NY2d 683 [1986])

A recent example of how trial evidence can be considered by an appellate court reviewing the denial of a pre-trial motion for severance, is the decision of the Appellate Division, Fourth Department in People v Nixon (2010 NY Slip Op 06997 [4th Dept 10/01/2010]), in which the Court wrote

In support of his pretrial motion for severance, defendant contended that he and the codefendant had irreconcilable defenses because, according to defendant, the codefendant was in sole possession of the weapon, while the defense of the codefendant was that defendant possessed the weapon but placed it under the codefendant's passenger seat when the police stopped the vehicle. Defendant further contended that he would be prejudiced in the event that the codefendant's attorney was permitted to present evidence against him, thereby acting as a second prosecutor. Indeed, defendant was correct in that respect because the codefendant's "attorney took an aggressive adversarial stance against [defendant at trial], in effect becoming a second prosecutor" (People v Cardwell, 78 NY2d 996, 998). In support of his motion for a mistrial following the testimony of the codefendant at trial, defendant contended that the codefendant had testified that defendant stated that he could not be caught with a handgun because he was on parole, and we note in any event that both defendants in fact implicated each other at trial (cf. People v Watkins, 10 AD3d 665, 665-666, lv denied 3 NY3d 761). Consequently, we agree with defendant that " [t]he essence or core of the [*2]defenses [were] in conflict, such that the jury, in order to believe the core of one defense, must necessarily disbelieve the core of the other' " (People v Mahboubian, 74 NY2d 174, 184). In view thereof, along with the fact that "there [was] a significant danger, as both defenses [were] portrayed to the trial court [in the pretrial motion and the motion for a mistrial], that the conflict alone would lead the jury to infer defendant's guilt," severance was required (id.; see People v Kyser, 26 AD3d 839, 840). Although it appears from the record that the court did not address defendant's irreconcilable conflict contention in refusing to sever the trial or to grant a mistrial, that failure is of no moment because we deem the court to have implicitly denied the severance and mistrial motions on that ground (see generally People v Mason, 305 AD2d 979, lv denied 100 NY2d 563). Consequently, we reverse the judgment and grant a new trial. Inasmuch as the codefendant was acquitted at trial, defendant's severance motion is moot.

DNA Databank Fees

2010-10-03T19:05:00.004-04:00
The Appellate Division, Fourth Department has repeatedly recognized that the statutes (see Executive Law § 995 [7]; Penal Law § 60.35 [1] [a] [v])creating the DNA databank fee did not provide for the imposing of such fees for offenses committed prior to the effective dates of those statutes. Furthermore, the Court has exercised its interest of justice jurisdiction to modify judgments to eliminate improperly imposed DNA fees even where counsel failed to timely object. (People v McCullen, 63 AD3d 1708 [4th Dept 2009]; People v Cooper, 2010 NY Slip Op 06973 [4th Dept 10/01/10]).

Thus, even where trial counsel did not object to the imposition of DNA fees, appellate counsel needs to check to insure that the DNA fees were properly imposed.

Concurrent Sentencing and Actus Reus

2010-10-03T18:47:00.004-04:00
Penal Law limits the circumstances in which a court may impose consecutive sentences. Specifically, Penal Law § 70.25 [2] provides that concurrent sentences must be imposed “for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other” Thus, in part, sentences imposed for two or more offenses may not run consecutively where a single act constitutes one of the offenses and a material element of the other.

In People v Laureno (87 NY2d 640 [1996]) the Court of Appeals explained that
In determining whether concurrent sentences are required, ... the court must determine whether the actus reus element is, by definition, the same for both offenses (under the first prong of the statute), or if the actus reus for one offense is, by definition, a material element of the second offense (under the second prong). If it is neither, then the People have satisfied their obligation of showing that concurrent sentences are not required (citations omitted). If the statutory elements do overlap under either prong of the statute, the People may yet establish the legality of consecutive sentencing by showing that the “acts or omissions” committed by defendant were separate and distinct acts (citations omitted).

Thus, counsel should be alert to arguments that different counts actually involved a single actus reus. Such a claim was successful in People v Mitchell (2010 NY Slip Op 06926 [4th Dept 10/01/10]) in which the Court held that
The evidence at trial established only that defendant constructively possessed the firearms with respect to the criminal possession of a weapon counts of which he was convicted, and thus the People proved only a single actus reus (see People v Laureano, 87 NY2d 640, 643; People v Hunt, 52 AD3d 1312, lv denied 11 NY3d 737; People v Rogers, 111 AD2d 665, lv denied 66 NY2d 614, 617). Further, the actus reus of the counts of criminal possession of a weapon is a material element of the offense of unlawful wearing of a body vest (see generally Laureano, 87 NY2d at 643). Thus, that sentence must also run concurrently with the sentences imposed on the criminal possession of a weapon counts.

Catu Reversals Keep on Coming

2010-10-02T20:40:00.003-04:00
In People v Catu (4 NY3d 242 [2005]) the Court of Appeals held that s“a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action” and decided that the trial court's failure to advise Mr. Catu of his obligation to serve a five-year term of postrelease supervision required reversal of his conviction. Further, the Court rejected a harmless error analysis in which courts seek to retrospectively determine whether the defendant would have declined to plead guilty had he known of the postrelease supervision.

Since this decision about 100 convictions have been reversed on Catu grounds. The two latest such reversal are the decisions of the Appellate, Division, Fourth Department in People v Rush, 2010 NY Slip Op 06911 [4th Dept 10/01/10]) and People v Pett, 2010 NY Slip Op 06826 [4th Dept 10/01/10]).

Thus, appellate attorneys may want to consider this issue when looking for issues to raise. Of course, it would be blog malpractice to suggest the possibility of urging reversal on Catu grounds without including a warning: attacking a plea as not knowing and intelligent may ultimately be harmful to your client, who might subequently receive a greater sentence (see).

General Objections Are Generally Worthless

2010-10-02T17:47:00.005-04:00
In 1883, in Bergmann v Jones (94 NY 51) the Court of Appeal held that
The rule is well established that where there is a general objection to evidence and it is overruled and the evidence is received the ruling will not be held erroneous, unless there be some grounds which could not have been obviated had they been specified, or unless the evidence in its essential nature be incompetent.

And the Court had repeatedly reminded counsel that a general objection is generally no better as preserving an issue for appellate review than silence (see e.g., People v Vidal, 26 NY2d 249, 254 [1970] ["A general objection, in the usual course, is to no avail when overruled if not followed by a specific objection directing the court, and the adversary, to the particular infirmity of the evidence"]; People v West, 56 NY2d 662, 663 [1982] ["Although a general protest was raised against this testimony, defendant at no time objected to this testimony on the specific ground that it constituted improper bolstering. Thus, defendant has failed to preserve this issue for appellate review"]; People v Fleming, 70 NY2d 947, 948 [1988] ["The word “objection” alone was insufficient to preserve the issue for our review"]; People v Tevaha, 84 NY2d 879,881 [1988]["Defense counsel simply made a general objection when the testimony was proffered, and failed to advise the trial court that the present claimed error was the basis for his objection. The word “objection” alone was insufficient to preserve the issue for our review"]; People v. Everson, 100 NY2d 609,610 [2003] ["A party's failure to specify the basis for its general objection renders its argument unpreserved for this Court's review"]).

So one might think that attorneys would understand that in objecting they must specify the basis for their objections. Otherwise, the only person possibly fooled into thinking that the attorney meaningfully objected to the admission of inadmissible evidence is the client. Yet attorneys continue to make general objections and appellate courts continue to find the objection inadequate to preserve the issue for review.

Two recent decisions of the Appellate Division, Fourth Department should serve as further reminders of the uselessness of general objections. In People v Shire (2010 NY Slip Op 06909 [4th Dept 10/01/10]) Defendant failed to preserve for our review his contention that the admission of testimony of a police detective that defendant possessed the cocaine with the intent to sell it invaded the province of the jury because "defendant made only a general objection to the testimony."

Similarly, in People v McMillon (2010 NY Slip Op 06925 [4th Dept 10/01/10]), the Court held that a general objection did not preserve for review a claim that it was violation of the right of confrontation to permit a police officer to testify that he told the defendant that other witnesses had placed defendant at the scene of the homicide.

So please, before standing up to object, plan to say something other than "objection, your honor."

Sandoval Rulings Subject to Change Based on Defense Proof

2010-10-02T17:07:00.002-04:00
A Sandoval hearing is designed to let the accused make an informed choice whether he should take the stand prior to testifying by providing a pre-trial determination of the permissible scope of cross-examination of the accused (People v Sandoval, 34 NY2d 371). Generally, a trial court's authority to change its Sandoval ruling is limited once defendant has decided to testify in good-faith reliance on the court's pretrial ruling (see, People v Powe, 146 AD2d 718, 719, l).

However, there is an important exception to this general rule which defense counsel needs to be aware of in questioning witnesses. As the Court held in People v Lyon, AD3d, 2010 NY Slip Op 06892 [10/01/10], where "a defendant's testimony conflicts with evidence precluded by a Sandoval ruling, "the defense opens the door' on the issue in question, and the [defendant] is properly subject to impeachment by the prosecution's use of the otherwise precluded evidence" (People v Fardan, 82 NY2d 638, 646; see People v Rodriguez, 85 NY2d 586, 591)." Indeed, in Fardan the Court held that the exception applies not only to the defendant's testimony but also when "a witness for the defense testifies to facts that are in conflict with the precluded evidence."

Attacking Guilty Plea as Not Knowing and Intelligent May Not be Knowing and Intelligent

2010-09-15T22:23:00.005-04:00
When an appellant successfully challenges a conviction which followed a trial, the imposition of an increased sentence after a retrial is presumed to violate the Due Process Clause of the New York State Constitution, even where the retrial is before a different judge than imposed the original sentence (People v Van Pelt, 76 NY2d 156, 158 [1990]).

There is no parallel presumption of vindictiveness when a person who successfully challenges a conviction obtained pursuant to a guilty plea is then tried, convicted, and sentenced to a longer sentence than originally imposed. Thus, appellate counsel must warn would be appellants that a successful appeal of a guilty plea might be Pyrrhic victory.

Today's news provides a clear illustration of these risks.

This past February, the Appellate Division, Fourth Department vacated Quinntarius White's conviction for depraved murder following guilty plea because the plea colloquy established that Mr. White acted intentionally and thus, the plea was not at his guilty plea was not knowingly, voluntarily and intelligently entered (People v White,70 AD3d 1343 [4th Dept 2010]). Thus. Mr. White's 15 year to life sentence was vacated.

As reported in today's Rochester Democrat and Chronicle (see) Mr. White was then tried, convicted of intentional murder and sentenced to 20 years to life.

Perhaps Mr. White's longer sentence might help others better appreciate the risks of challenging a guilty plea.

Prosecutors Have No Standing to Object to Subpoenas for Documents from Governmental Agencies

2010-09-01T21:04:00.005-04:00
By

Jill Paperno, Esq.
Second Assistant Monroe County Public Defender

Defense attorneys often seek subpoenas related to their cases. When defense attorneys subpoena documents from a governmental entity, we have to serve notice on the prosecutor. The prosecutors often object to such subpoenas on a variety of grounds. But do they have standing to object? As detailed below, it appears that the answer is a firm "no."

A. The Prosecutor Has No Possessory or Proprietary Interest in the Records

Although he is entitled to notice of subpoenas defense counsel wishes to serve on governmental agencies, the prosecution does not have standing to contest the subpoenas. That right is the right of the agencies, and there is no language in either CPLR 2307 or CPL 610.20(3) that provides the prosecution with the right to object to the subpoenas.

In People v. Di Raffaele (55 NY 2d 234), the Court of Appeals affirmed defendant's conviction for usury in the second degree. In response to defendant's argument that the prosecutor used materials obtained through improper use of subpoenas, the Court stated, "Even if it be assumed that the subpoenas in question were indeed null and void, whatever may have been the right of the telephone company to challenge their validity, defendant, having no possessory or propietary interest in the records, has no standing to do so (cf. People v. Ponder, 54 N.Y.2d 160)."

In a case in which the defendant raised a similar argument, People v. Daniel (206 AD2d 856), the Fourth Department, citing, inter alia, DiRaffaele, held that

There is no merit to the contention that the prosecutor improperly obtained telephone records, tax returns and court records to be used at defendant's trial. Defendant lacks standing to challenge the seizure of documents that are maintained by third parties because he has no privacy interest in them (cites omitted).

In People v. Doe (96 AD2d 1018), the First Department held that the Judge-defendant had no standing to preclude production of bank records. The Court explained that,

bank records, although they may reflect transactions between the bank and its customers, belong to the bank. The customer has no proprietary or possessory interests in them. Hence, he cannot preclude their production. (Cites omitted) The rule is the same with respect to telephone records (cite omitted). Accordingly, if the owner of the records, in this case the Chemical Bank, is not opposed to producing them, the customer is powerless to preclude their production.

(96 AD2d at1019).

In two trial court decisions squarely addressing the question of whether the prosecutor has standing to oppose issuance of subpoenas to third parties, both courts concluded they did not. In People v. Grosunor (108 Misc. 2d 932), the Court considered whether the prosecutor had standing to object to defendant's subpoena of Department of Social Services records. The court, in an extremely well reasoned decision, noted that representation by the prosecutor of the agency from which materials were being sought

would appear to be in violation of local law (cite omitted) and would constitute a conflict of interest between agencies involved. Generally, the office of the District Attorney is charged with the responsibility of initiating and conducting all prosecutions for crimes and offenses cognizable by courts of the county in which he serves (cites omitted). In addition, the District Attorney is elected by and for the County of the Bronx and discharges his duties within and for that county.

The Department of Social Services, the nonparty recipient of defendant's subpoena, is an agency of the City of New York and, as such, has a statutory attorney and a legal division separate and apart from the District Attorney (cite omitted). For this reason, the proper party to challenge the validity of the subpoena is the Department of Social Services and not the District Attorney's office. As the court pointed out in Raynor v. Kirk, 30 Misc.2d 1041, which held that the District Attorney had no authority to represent the Nassau County Commissioner of Police, a member of the county police department and Nassau County itself, we are dealing with public officers and municipal agencies whose powers and duties are spelled out specifically by statute. In the case at bar, the relevant statutes require a holding similar to the one reached in Raynor, supra.

(People v. Grosunor, 108 Misc. 2d 932, 934-935)

The Monroe County District Attorney's duties are set forth in the Monroe County Charter, C7-8, and do not include representation of any police agencies. Each agency does, however, have its own counsel, and counsel for each agency has already indicated that they do not oppose issuance of the subject subpoenas in this case.

The Court in Grosunor also noted that "the motion to quash is made by the adversely affected and interested person and not by strangers to the litigation or by the District Attorney." 108 Misc.2d at 935.

In People v. Weiss, 176 Misc.2d 496, the trial court recognized that the prosecution had "no standing to quash a defense subpoena served on a third party, not its agent (cites omitted)." 176 Misc. 2d at 497.

The District Attorney's Office does not have the statutory authority to represent other agencies, and moving to quash a subpoena on another agency would constitute such representation. The District Attorney's Office does not fall within the category of parties traditionally recognized by courts as having standing to move to quash subpoenas to third parties. The statutes providing for notice to the prosecutor of subpoenas to be served on governmental agencies does not provide a procedure for the prosecution to object. For all of these reasons, defendant respectfully submits that the prosecutor does not have standing to object to defense subpoenas served on third parties.

B. The Prosecutor's Arguments

In response to defendant's motion in a recent case, the prosecutor cited Brown v. Grosso (285 AD2d 642) for the proposition that he has standing to object to the subpoenas defense counsel seeks in this case. He noted that the Court in Brown v. Grosso cited Matter of Pirro v. LaCava, 230 AD2d 909, Morganthau v. Young, 204 AD2d 118 and Matter of Morganthau v. Cooke, 85 AD2d 463.

In Brown v. Grosso the Second Department granted a writ of prohibition denying enforcement of subpoenas served upon the Queens County District Attorney's Office and the Civilian Complaint Review Board. Without stating its reasoning, but citing the cases noted above, the Court stated "the District Attorney had standing to seek prohibition of the enforcement of the subpoena served upon the Civilian Complaint Review Board."

In Pirro v. LaCava, cited in Brown, the Second Department issued a writ of prohibition reversing the trial court's granting of three defense applications. The trial court had granted defense requests to preserve all evidence relating to the criminal investigation, for pre-indictment issuance of a subpoena duces tecum directing the Medical Examiner's Office to produce material related to the autopsy examination, and for a pre-indictment application of the defendant to allow inspection and documentation of the victim's home. The decision did not indicate that there was any specific need for the material cited by the defense, nor a specific proceeding approaching for which the material was necessary. Thus, the Court concluded that the requests were an effort to expand discovery. Notably, the Court characterized the orders as requiring "the People to make disclosure which they are not required to make pursuant to the governing statutes (cites omitted) 230 A.D.2d at 910.

In Morgenthau v. Young the First Department held that, in a civil forfeiture proceeding, the prosecutor who was seeking attachment of defendant's assets had standing to move to quash subpoenas that would have an impact on an underlying criminal case. Ultimately, however, the Court denied the prosecutor's application to quash subpoenas, noting that the factual dispute at the hearing relating to attachment of the defendant's assets "made it a proper exercise of discretion to permit defendants to subpoena the other participants in these conversations, who will be the main prosecution witnesses in the underlying criminal case." 204 AD2d at 119.

Finally, in Morgenthau v. Cooke, the First Department considered the District Attorney's challenge to the plan temporarily assigning judges in New York City courts. The Court noted that the District Attorney had standing to challenge the judges' reassignments.

Thus, the cases cited by the prosecutor in support of his contention that he had standing to object to issuance of the subpoenas sought by defense counsel, were either inapplicable to the present situation procedurally or substantively.

Morgenthau v. Cooke is inapplicable as it related to a prosecutor's standing to challenge assignment of judges. In Young, an attachment proceeding, there was apparently a showing that the prosecutor's case would be detrimentally impacted by the issuance of the subpoenas (though ultimately the relief sought by the prosecutors, quashing of the subpoenas, was denied). Such a showing was not made in the case at bar. And unlike the situation in Young, a civil proceeding, if the issuance of the subpoenas in this case might damage the prosecutor's case due to revelation of exculpatory material, defendant has a right pursuant to Brady v. Maryland to obtain the material without a subpoena and the prosecutor has an obligation to disclose it.

In the only two decisions stating the prosecutor has standing to challenge a subpoena, Brown v. Grosso and Pirro v. LaCava, both Second Department decisions, the Court found that the defense was seeking expansive and impermissible expansion of discovery, and thus permitted the prosecutor to intervene by filing writs of prohibition. In the two criminal cases, there is no indication that the prosecutor was permitted to file motions to quash the subpoenas. There is no indication that the Court relied on any authority to find that a party without a possessory interest in the records had standing.

Significantly, there is no provision contained in the Criminal Procedure Law for the prosecutor to file a motion to quash once notice is received.

Plea Without Written Order Denying Suppression Forfeits Issues

2010-09-01T20:40:00.002-04:00
Get it in writing. How many times have we heard that? It's good advice, sometimes it's even the law.

CPL 710.70(2) provides that "An order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty." The word used is "order", while the Legislature elsewhere in the same article freely used the word "determination" (e.g. 710.40[3] "When the motion is made before trial, the trial may not be commenced until determination of the motion.").

Because the statute provides only that an "order" is appealable, the Appellate Division, Fourth Department has ruled that the "defendant forfeited the right to our review .. inasmuch as he pleaded guilty before the court determined whether suppression was warranted." (People v Nunez, 73 AD3d 1469). And in case you were hoping that the court's use of "determined" might help in cases where the judge rules against you, but does not issue an order finally deciding the issue against you, stop hoping. The case concludes with "Although a defendant convicted upon a plea of guilty may seek review of 'an order finally denying a motion to suppress evidence' (CPL 710.70[2]) upon an appeal from a judgment of conviction, no such order was issued in this case." As if Nunez was unclear, see also People v Dwyer, 73 AD3d 1467; People v Releford, 73 AD3d 1437; People v Ellis, 73 AD3d 1433, like Nunez all decided by the Appellate Division, Fourth Department on May 7, 2010.

This is something you can expect to see many, many times over the coming years. If there is any possibility of filing a notice of appeal from a plea following the denial of any suppression motion, you need to have the resulting decision reduced to writing, or the issue is forfeited by the plea of guilty. Get it in writing is good advice, even if what you get in writing is bad news.

Ex Post Facto Protection Remains in a Post-Booker Sentencing World

2010-08-28T19:11:00.001-04:00
by Mark D. Hosken,
Supervisory Assistant Federal Public Defender,
Western District of New York

The Ex Post Facto clause (U.S. Const. Art. I, §9) prohibits laws that increase the punishment for a crime after its commission. Garner v. Jones, 529 U.S. 244, 249 (2000). That protection is extended to the application of the United States Sentencing Guidelines. See U.S.S.G. §1B1.11(b)(1). Section 1B1.11 directs the application of an earlier guideline manual if application of a later manual would violate the Ex Post Facto clause. If an amended guideline section or enhancement substantially disadvantages the defendant, the application of the section or enhancement would violate the Ex Post Facto clause. Miller v. Florida, 482 U.S. 423, 432-433 (1987).
The Department of Justice is litigating a different position. The government maintains that Ex Post Facto protection is no longer relevant in determining which version of the Guidelines manual applies even if the amended section is more onerous to the defendant. The argument seemingly relies on Booker’s holding that the guidelines are advisory. Simply put, the contention is that since the guidelines are advisory, there can be no risk of increased punishment. For various reasons, the government’s position is flawed.
In Miller, the Supreme Court held that the application of a Florida sentencing scheme, similar to the U.S.S.G., violated the defendant’s Ex Post Facto protection. The decision addressed the central inquiry of the Ex Post Facto protection: was the defendant given fair notice of the punishment? The necessary analysis is whether the law applies to events occurring before its enactment and whether it substantially disadvantages the defendant. The Florida sentencing scheme set a sentencing range of 3 1/2 years to 4 1/2 years at the time the defendant committed his offense. Later changes increased the range to 5 1/2 years to 7 years when the defendant was sentenced. This substantially disadvantaged the defendant as it made “more onerous the punishment for (conduct) committed before its enactment.” Id at 435. As a result, the Ex Post Facto clause was violated.
A recent example demonstrates the continued viability of Ex Post Facto protection. A defendant is convicted of defrauding the United States (18 U.S.C. § 641) by securing federal FEMA funds by falsely claiming he resided in New Orleans during the Hurricane Katrina catastrophe. The defendant’s criminal conduct was complete in September 2005.

Congress decided to increase the punishment for future fraud-related offenses similar to those occasioned by the Katrina disaster. The lawmakers enacted 18 U.S.C. § 1040 pursuant to Pub.L. 110-179. This legislation created a 30 year felony (Fraud in Connection with a Major Disaster or Emergency Benefits) instead of the 10 year maximum for 18 U.S.C. § 641. The effective date for the new crime was January 7, 2008. This was 27 months after the criminal conduct was completed in our example. The Sentencing Commission created an enhancement [2B1.1(b)(11)] to implement the directives of the new statute. This enhancement if applied to the defendant’s completed conduct would result in a doubling of the offense level from 6 to 12. The amended enhancement became effective on November 1, 2008. This was 37 months after the criminal conduct was completed in our example.
U.S.S.G. § 1B1.11(a) directs the use of the guideline manual in effect on the date of sentencing. Such application is modified by subsection (b)(1). This caveat requires the application of the earlier manual (date of offense) if the later edition violates the Ex Post Facto clause. Thus, the proper U.S.S.G. manual is the earlier one in our example.
The government argues the sentencing court need not use the earlier - and more favorable to the defendant - guideline manual. Such claim ignores the Supreme Court’s direction that the Guidelines remain the starting point and the initial benchmark in every sentencing proceeding. Gall v. United States, 552 U.S. 38, 49 (2007). Numerous courts rejected the government’s claim and applied the Ex Post Facto protection to post-Booker sentencings. See United States v. Turner, 548 F.3d 1094, 1099-1100 (D.C. Cir. 2008) (using a later version of the guidelines created a substantial risk that the defendant’s sentence was more severe, thus resulting in a violation of the Ex Post Facto Clause); United States v. Lanham, __F3d__, 2010 WL 3305937, *12 (6th Cir. Aug.24, 2010) (“the advisory nature of Guidelines does not completely eliminate Ex Post Facto concerns.”); United States v. Lewis, 603 F.Supp.2d 874, 877 (E.D. Va. 2009) (the clear preponderance of reviewing courts seem to favor post-Booker application of the Ex Post Facto Clause to sentencing guidelines calculations); United States v. Doyle, 621 F.Supp.2d 345 (W.D. Va. 2009) (rejecting the use of the higher 2008 guidelines and instead applying the 2003 guidelines in effect at the time of the commission of the child exploitation offenses); United States v. Kladek, 651 F.Supp.2d 992 (D. Minn. 2009) (rejecting the use of the higher 2008 guidelines and instead applying the 2000 guidelines in effect at the time of the commission of the tax offenses); United States v. Sweeney, __F.Supp.2d__, 2010 WL 2222264, *4 (S.D.N.Y. June 3, 2010), (collecting cases and applying the 2003 guidelines in effect at the time of the conduct rather than the more onerous 2008 guidelines in effect at sentencing in a child exploitation case); United States v. Kilkenny, 493 F.3d 122, 127 (2d Cir. 2007) (holding that, the application of a particular version of the sentencing guidelines is retrospective, for purposes of the Ex Post Facto Clause, if the version went into effect after the last date of the offense of conviction); United States v. Johnson, 558 F.3d 193, 194 & n.1 (2d Cir. 2009) (per curiam) (explaining Kilkenny); and United States v. Gilmore, 599 F.3d 160, 166 (2d Cir. 2010) (at a minimum, in order to raise an Ex Post Facto concern, a law must apply to events occurring before its enactment).
The Second Circuit recently reaffirmed the Ex Post Facto principle in a post-Booker analysis. Though the reasoning was not determinative to the issue before the Court, the panel agreed the Ex Post Facto Clause applies: “Our holding continues to prevent the Sentencing Commission and Congress from imposing a heightened punishment following the commission of the criminal conduct triggering that punishment.” United States v. Kumar,___F.3d__, 2010 WL 3169270,*12 (2d Cir. Aug. 12, 2010). Judge Sack, in his dissenting opinion, agrees with the majority on this point:
“The majority and I begin on common ground. We first assume that the Ex Post Facto doctrine applies to the Sentencing Guidelines after the Supreme Court decided, in United States v. Booker, (citation omitted), that the guidelines are advisory. We then agree that [f]or a law to contravene the Ex Post Facto clause, two critical elements must be present: First, the law must be retrospective, that is, it must apply to events occurring before its enactment; and second, it must disadvantage the offender affected by it.”
Id at *25.
Recently, the Honorable David G. Larimer rejected the government’s argument that the application of a more severe guideline enhancement would not impact the Ex Post Facto protections. Judge Larimer recognized the higher guideline sought by the government would disadvantage the defendant. The Court decided the importance of the guidelines as a starting point in the sentencing process was enough to trigger the use of the earlier, less severe guideline manual. United States v. Lewis, Docket No. 10-CR-6060-001, WDNY, (decided Aug. 19, 2010).

The use of the later book in our example to apply the enhancement would violate the protections of the Ex Post Facto clause. The enhancement doubling the guideline range is the result of legislative action by Congress many months after the offender’s conduct was complete. The government seeks to retroactively apply the onerous enhancement to the defendant. If successful, that guideline enhancement would apply to events that ended before the legislative amendment. Moreover, such application would disadvantage the defendant by doubling his guideline range. Such application would be unconstitutional. The proper guideline to be applied in our example is the earlier manual. Contrary to the government’s contention, the protections of the Ex Post Facto clause remain for post-Booker sentencings.

Missing jurors

2010-08-03T19:53:00.003-04:00
Nobody gives Parker warnings to the jury. No judge says to the jury "if you fail to appear, the trial will continue without you". If they did, then the jury might feel free to stay home instead of being afraid someone would come looking for them. So what do you do if parts of your jury don't show up when they're supposed to? CPL 270.35(2)(a) is one of the better statutes in terms of being specific. Basically, any juror who does not return within two hours can be replaced.

It's not quite that simple. Upon learning that one of our jurors is missing, the trial judge is required to conduct a "reasonably thorough inquiry" to determine whether the juror is reasonably likely to return within two hours of the time court was scheduled to resume. This is why the ADA will call the area hospitals. It's like advertising in the Daily Record to give notice to someone you know is living in California. Pointless though they may be, the formalities must be observed.

As to the two hours, note that it's not two hours from the time of the phone call. If the juror will not return within two hours of the time set for the trial to continue, then the juror can be replaced. So if you find out about problems at 4PM today and the trial is supposed to continue tomorrow at noon, any juror due back by two tomorrow cannot be replaced. If you find out about the problem at 4PM, and court was scheduled to begin again at 2:30, any juror not due back until after 4:30 can be excused. You have a right to be heard before any juror is excused, and the court must place the reasons for dismissal on the record (CPL 270.35[2][b&c]).

What if the jury is deliberating? The judge cannot replace a deliberating juror without the defendant's express written consent, executed in open court (CPL 270.35[1]; People v Gomez, 308 AD2d 460 [2d Dept 2003]). The defense doesn't need a good reason - or any reason - to refuse to consent. If you think replacing the deliberating juror would be a mistake, then the court must declare a mistrial and schedule a new trial date.

Repugnant Verdicts

2010-07-10T10:12:00.004-04:00
Juries are permitted to deliver stupid verdicts. They can believe the wrong people, accept the ridiculous while rejecting the obviously true. They cannot, however, square a circle. So some verdicts will arguably be repugnant. A verdict is repugnant when it is logically inconsistent, not when it's factually stupid. In other words, a combination of convictions and acquittals will be legally unacceptable when, no matter what evidence the jury might have accepted or rejected, this combination is impossible to reconcile with itself. A verdict is repugnant if an acquittal on one charge conclusively negates a necessary element of a crime for which the defendant was convicted (People v Tucker, 55 NY2d 1 [1981]). A verdict is also repugnant/inconsistent if the defendant is convicted of two counts which effectively find differing mental states as to the same act (People v Gallagher, 69 NY2d 525 [1987] [the same murder cannot be both intentional and depraved]). Few verdicts are actually repugnant. If the jury could find a reasonable doubt as to the element of one crime, e.g assault, without necessarily finding a reasonable doubt as to another crime, e.g. robbery, then acquittal on the first is not repugnant even if there is a conviction on the second. It might be stupid, if the robbery allegations seem to be entirely dependent on and peripheral to the existence of the assault, but that is not the same as legally inconsistent. The jury can accept some and reject some of the same sentence, though I do not believe that it can accept a fact for one purpose and reject it for another. The evaluation is much like a rule against perpetuities problem. If you can imagine a combination of findings which permit the verdict, it's permissible. A verdict which includes one ore more acquittals and is ruled to be repugnant will result in the jury reconsidering those acquittals. CPL 31.50(2) provides that if the jury renders a verdict which is legally defective then the court “must explain the defect or error and must direct the jury to reconsider such verdict”. Therefore, dealing with repugnance is a two step process. One, is the verdict repugnant? Two, is your client better off if you keep your mouth shut? The best way to deal with a complex case is to consider, while the jury is out, what combination of verdicts might be repugnant, and whether you want to object. That way you're not scrambling to make the calculation in a rush. Failing that, request a brief delay in releasing the jury to consider your options. This is why a claim that the verdict is repugnant must be raised before the jury is discharged to preserve the claim. The assumption is that defense counsel made a strategic choice not to raise repugnance, to avoid the remedy. Finally, repugnance is not tested by referring to what the law actually requires, it is tested by referring to the law as it was given to this jury, even if the charge was erroneous (People v Green, 71 NY2d 1006 [1988]).

People v Perkins - Court of Appeals - June 29

2010-07-03T14:52:00.000-04:00
The defendant physically resisted appearing in a lineup. Police then took a photograph of his face, telling him it was necessary for a “prisoner movement slip”, and they did the same for the fillers. The complainant picked the defendant from this “lineup”, as he had done from a prior photo array. Because lineup identifications are admissible, and photo arrays are not, the prosecution argued that the defendant improperly denied them useful evidence, and therefore the second photo array was admitted at trial, even though a true lineup was successfully conducted five months later.

The Court of Appeals said this was not an abuse of discretion. It is important to note that admissibility was on a theory that the defendant cannot benefit from “his own wrong”, not that photo arrays are admissible as a matter of discretion. Further, the length of time between the two lineups was important to the decision as well. Had the defendant co-operated a few weeks later, I do not believe that this 'photo lineup' would have been admissible. I think that this type of procedure is a cattle prod to co-operation, not an open door to photo arrays becoming admissible at trial.

People v King - Court of Appeals - June 29

2010-07-03T14:36:00.004-04:00
County court had ruled that police had no basis to stop the defendant, and that it could not be concluded that he stopped voluntarily. County court nonetheless refused to suppress the evidence obtained from the stop. The Court of Appeals reversed and suppressed. All that is surprising is that three judges dissented from this two paragraph opinion.

The dissenters objected that, since the defendant and a companion were on separate motorcycles, when police legitimately stopped the friend both riders pulled over, since it was unclear who was being signalled. The dissenters admitted that the officer did not direct defendant “either to stay or leave”, and thus he remained until another officer arrived and noticed he was drunk.

Maybe I am missing something. Perhaps the dissenters focused on the word "stop" and concluded that pulling over the defendant was an acceptable collateral consequence to the legitimate stop, which is reasonable enough. However, it seems to me that if the police do not inform the second rider that he is free to leave, then his continued detention is coerced and therefore illegitimate. The dissenters analogy was to a passenger in a car, who is detained when the driver is. This seems inapt. Passengers do not travel in their own vehicles, hence the name.

If an officer shouts "stop" at a pedestrian he is not free to detain everyone within earshot for as long as he likes so long as they stopped when he shouted. The only mistake the majority made, that I can see, was in failing to revise and extend their memorandum to beat the dissenters with blunt prose.

People v Frederick - on the unspecified powers of the court and consecutive sentences after bench trials

2010-06-17T20:27:00.005-04:00
People v Trevor Frederick, decided June 10th, is an odd set of facts. Defendant was found guilty of attempted murder as to his former girlfriend, but the jury hung on felony murder regarding the death of the man she was with. The prosecution obtained a new indictment adding Manslaughter in the first degree. On this basis, the original indictment was dismissed by the court. On motion of the defendant, the court dismissed the new indictment because Manslaughter first had been a joinable, uncharged offense to the first indictment, and therefore was improperly added to the superseding indictment. The court then un-dismissed the original indictment. The Court of Appeals said this was fine: “Although the Criminal Procedure Law does not expressly provide for reinstatement of an indictment under the circumstances presented in this case, it does not preclude what Supreme Court did either.” Curiously, there is nothing in the CPL which prohibits trial courts from performing open-heart surgery using obsidian knives either, and a great many other things. There is a trend of sorts at the Court of Appeals, granting powers to trial courts simply because the power in question is not explicitly prohibited (see e.g. People v Wrotten decided 12/15/09).

This case also stands for and additional proposition: after a bench trial, the trial judge has greater scope to impose consecutive time, because “this was a nonjury trial where the judge, as factfinder, would have known when he sentenced defendant what facts he had found. There is no uncertainty about whether the facts supported a consecutive sentence owing to a lack of specificity in the jury charge”. Facts under which concurrent time would have been mandatory, had there been a jury, will permit consecutive time after a bench trial, on the theory that the trial judge would only have imposed a consecutive sentence if the verdict was based on conclusions which would permit such a sentence. Twenty-five to life consecutive: another reason never to waive a jury trial without a very good justification.

Right to Counsel - need for a clear record of prior representation

2010-06-17T20:19:00.003-04:00
In People v McClean, decided June 10th, the Court of Appeals held that, while right to counsel deprivations are normally reviewable even in the absence of an objection, the record must be clear that there was a deprivation, so a form of preservation requirement sneaks in through the back door.

Here, defendant had spoken to police - in the presence of counsel - about the homicide in question. Three years later, he spoke to them without counsel. The Court of Appeals questioned whether the prior counsel was really representing the defendant on the murder (in which he was a suspect), or merely on the robbery which prompted defendant to co-operate on the murder. The failure of the defendant to make clear at the Huntley hearing that the prior representation was on both matters rendered the question both unpreserved and unclear on the record because “we cannot say that no evidence the People might have presented would lead us to hold otherwise”. This is an interesting formulation, as we also cannot say that no evidence the People might have presented would lead a court to hold that two plus two is a fish stick dipped in custard. Three judges dissented, saying that the attorney who was talking to the police on behalf of the defendant about a homicide and a robbery was representing him on the homicide and on the robbery, and not acting as his lawyer on the robbery and as his personal masseuse and haberdasher on the homicide.

This case also stands for the proposition that if your client is a suspect in a murder, don’t take him to the police to talk about it.