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.

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.

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.

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

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.

In Deciding For Cause Challenges Courts Must Consider Prospective Juror's Last Statement

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.

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.