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.

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

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.

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

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.

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.

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

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.