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.
Saturday, July 3, 2010
People v Perkins - Court of Appeals - June 29
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.
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
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.
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 King - Court of Appeals - June 29
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.
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.
Thursday, June 17, 2010
People v Frederick - on the unspecified powers of the court and consecutive sentences after bench trials
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.
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.
People v Frederick - on the unspecified powers of the court and consecutive sentences after bench trials
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.
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
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.
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.
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