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.
Thursday, February 24, 2011
Reckless Driving Causing Death Held Not To Be Depraved Indifference Murder
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.
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
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.
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.
30.30 and Superceding Accusatory Instruments
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.
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.
Wednesday, February 23, 2011
Eavesdropping Warrant Requirement
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.
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.
Eavesdropping Warrant Requirement
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.
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.
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
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.
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.
Subscribe to:
Posts (Atom)
Posts
