Wednesday, September 24, 2008

People v Whyte 2008 NY Slip Op 00740

Contrary to the contention of defendant, County Court properly refused to suppress evidence allegedly obtained as a result of a violation of his physician-patient privilege. Indeed, "even if there was a violation of the physician-patient privilege, the suppression of the evidence found as a result is not required" (People v Greene, 9 NY3d 277, 280). The court also properly refused to suppress statements that defendant made during a telephone conversation with the victim's mother that was recorded by the police. The statements were not obtained in violation of defendant's right to counsel because no formal proceedings had been commenced against defendant when the conversation was recorded, and it cannot be said that the matter had otherwise progressed from an investigatory to an accusatory stage (see People v Samuels, 49 NY2d 218, 221; see generally Kirby v Illinois, 406 US 682, 688-690; People v West, 81 NY2d 370, 373). In addition, the statements were not obtained in violation of defendant's right against self-incrimination despite the failure of the victim's mother to inform defendant that the police were recording the conversation (see People v Lee, 277 AD2d 1006, 1007, lv denied 96 NY2d 785; People v Williams, 242 AD2d 867, lv denied 91 NY2d 899).

People v Figgins 2008 NY Slip Op 00742

We reject the contention of defendant that his statutory and constitutional rights to a jury pool representing a fair cross section of the community were violated. "Defendant's motion papers failed to set forth sufficient facts demonstrating a systematic exclusion of African-Americans from the jury pool" (People v Cotton, 38 AD3d 1189, lv denied 8 NY3d 983; see People v Owens, 39 AD3d 1260, 1260-1261, lv denied 9 NY3d 849). Defendant offered no evidence indicating that the disproportionately lower percentage of African-Americans in the jury pool was attributable to some aspect of the process used to fill jury pools in Monroe County.

Also, in a burglary case the Court held that it was proper to allow

the People to introduce in evidence his admission that he used crack cocaine inasmuch as that admission was relevant to the issue of motive (see People v Tutt, 305 AD2d 987, lv denied 100 NY2d 588; see generally People v Ventimiglia, 52 NY2d 350, 359; People v Molineux, 168 NY 264, 293-294).

People v Torres 2008 NY Slip Op 00743
County Court erred in imposing a five-year period of postrelease supervision for a class D violent felony offense (see § 70.02 [former (1) (c)]; § 70.45 [former (2)]; People v Clinkscales, 35 AD3d 1266). Inasmuch as the record does not indicate whether the court intended to impose the maximum period of postrelease supervision, we modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing (see People v Bowden, 15 AD3d 884, lv denied 4 NY3d 851, 5 NY3d 786; cf. People v Roman, 43 AD3d 1282; People v Keith, 26 AD3d 879, lv denied 6 NY3d 835).

People v Morrison 2008 NY Slip Op 00744
We agree with defendant that defense counsel should not have questioned him concerning the underlying charges of his 1988 conviction when County Court's Sandoval ruling precluded the People from doing so and that defense counsel should have objected when the prosecutor questioned defendant in violation of the court's Sandoval ruling. We note, however, that defendant's answer to the prosecutor's question was non-responsive and that the prosecutor immediately moved on to a different line of questioning. We thus conclude that defense counsel's errors were not so egregious and prejudicial that they deprived defendant of his right to a fair trial.

People v Lundy 2008 NY Slip Op 00746
Contrary to the further contention of defendant, the court properly refused to order the People to provide the criminal history reports of certain prosecution witnesses inasmuch as the record establishes that the People were unaware of the criminal histories of those witnesses and thus were not required to furnish such reports (see CPL 240.45 [1] [b]; Defendant failed to preserve for our review his contention that the People failed to disclose alleged Brady material (see People v Little, 23 AD3d 1117, 1118, lv denied 6 NY3d 777; People v Martinez, 298 AD2d 897, 898, lv denied 98 NY2d 769, cert denied 538 US 963, reh denied 539 US 911) and, in any event, that contention lacks merit. The information at issue, i.e., the fact that a witness was testifying pursuant to a material witness order, does not constitute Brady material because it is not exculpatory (see generally People v Arhin, 203 AD2d 62, 63, lv denied 83 NY2d 908).

People v Nicol 2008 NY Slip Op 00777 and People v Reese 2008 NY Slip Op 00803
Defendants appeal from a new sentence pursuant to the 2005 Drug Law Reform Act ([DLRA-2] L 2005, ch 643, § 1) granted upon their applications to be resentenced upon his 2004 conviction of criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [former (1)]). Defendants’ contentions are the same as those raised by the defendant in People v Williams (45 AD3d 1377) and, for reasons stated in our decision in that case, we reverse the sentence and remit the matter to County Court to determine defendant's application in compliance with DLRA-2.

In People v Williams (45 AD3d 1377) the Court held that
the court erred in failing to comply with DLRA-2 because it failed to set forth written findings of fact and the reasons for its determination to impose a determinate term of 13 1/2 years imprisonment and a five-year period of postrelease supervision (see L 2005, ch 643, § 1). In addition, we conclude that the court erred in stating that the original sentence would stand before affording defendant an opportunity to exercise his right to appeal and to withdraw his application following that appeal (see id.).

People v Tabor 2008 NY Slip Op 00836
We agree with defendant that County Court erred in summarily denying his request to proceed pro se. "A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues" (People v McIntyre, 36 NY2d 10, 17; see People v D'Antuono, 263 AD2d 968, 969). In determining that a defendant is acting knowingly and voluntarily, the court must "ensure that the defendant . . . is aware of the disadvantages and risks of waiving his right to counsel" (People v Schoolfield, 196 AD2d 111, 115, lv dismissed 83 NY2d 858, lv denied 83 NY2d 915). Here, the record establishes that all three prongs of the test in McIntyre were met (see People v Ward, 205 AD2d 876, 877, lv denied 84 NY2d 873; cf. People v Lott, 23 AD3d 1088, 1089; see generally People v Arroyo, 98 NY2d 101, 103-104).

People v Delarosa 2008 NY Slip Op 00840
We agree with defendant that, by pleading guilty, he did not forfeit his contention that the People failed to disclose exculpatory evidence prior to the entry of his Alford plea (see generally People v Hansen, 95 NY2d 227, 230-231). " [T]he law . . . appears to be settled . . . [that] Brady material must be disclosed in time for its effective use at trial . . . or at a plea proceeding' " (People v Reese, 23 AD3d 1034, 1036, lv denied 6 NY3d 779, quoting United States v Coppa, 267 F3d 132, 135 [emphasis omitted]), and it would undermine Brady's disclosure requirements if a defendant were deemed to have waived a Brady issue by entering an Alford plea without the knowledge that the People possessed exculpatory evidence. Nevertheless, we conclude that there was no Brady violation based on the prosecutor's failure to provide defendant with the written statement of a witness inasmuch as it was duplicative of comments made by the witness during a 911 call that was recorded and disclosed to defendant before he entered his plea. "Brady does not . . . 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" (People v Doshi, 93 NY2d 499, 506; see People v LaValle, 3 NY3d 88, 110; People v Terry, 19 AD3d 1039, 1040, lv denied 5 NY3d 833).

People v Canales 2008 NY Slip Op 00850
We reject the...contention of defendant in support of his motion that he was entitled to withdraw the plea because he was unaware of the immigration consequences of his plea at the time he entered the plea. We reject that contention as well, inasmuch as the immigration consequences of a plea do "not affect the voluntariness of the plea or warrant its vacatur" (People v Klein, 11 AD3d 959, 959). Finally, defendant contends that he was denied effective assistance of counsel based on the failure of his two attorneys to advise him of the immigration consequences of the plea. To the extent that the contention of defendant survives his plea of guilty (see People v Burke, 256 AD2d 1244, lv denied 93 NY2d 851), we conclude that it lacks merit (see People v Ford, 86 NY2d 397, 405).

People v Small 2008 NY Slip Op 00855
County Court properly permitted the People to present Molineux evidence to rebut defendant's agency defense (see People v Ortiz, 259 AD2d 979, 980, lv denied 93 NY2d 1024). Contrary to the contention of defendant, he was not entitled to notice of the People's intention to present such evidence or to a pretrial hearing on the admissibility of such evidence (see People v Torres, 300 AD2d 46, lv denied 99 NY2d 633).

In a reminder to trial counsel of the need to preserve Crawford - confrontation claims that Court held that
Although we agree with defendant that the court erred in admitting in evidence a laboratory report relating to a prior conviction inasmuch as the People failed to establish a proper foundation for the admission of that report (see Matter of Samuel A., 63 AD2d 585), we conclude that the error is harmless (see People v Crimmins, 36 NY2d 230, 241-242). Defendant failed to preserve for our review his further contention that the admission of the laboratory report in evidence violated his constitutional right to confront witnesses against him (see CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

People v Ortiz and Vega 2008 NY Slip Op 00858

County Court had ordered that the charges in an indictment against two defendants be reduced. Neither defendant submitted in briefs in response to the People’s successful appeal of this order. It is difficult enough to win with an attorney. Who dropped the ball?

People v Davis 2008 NY Slip Op 00866
...[C}ontrary to defendant's contention, the showup identification procedure, which was conducted in geographic and temporal proximity to the crime, was not unduly suggestive (see People v Ortiz, 90 NY2d 533, 537; People v Duuvon, 77 NY2d 541, 544). The fact that defendant was removed from a police car does not render the showup identification procedure unduly suggestive (see People v Ponder, 19 AD3d 1041, 1043, lv denied 5 NY3d 809), nor does the fact that he was in handcuffs and was standing next to two police officers render it unduly suggestive (see People v Delarosa, 28 AD3d 1186, 1187, lv denied 7 NY3d 811).

With misidentification being the single greatest cause of wrongful convictions (add cite) one wonders what factors would render showups unduly suggestive.

People v Christopher T. 2008 NY Slip Op 00875
A challenge to the legality of a sentence is not precluded by a defendant's waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10; People v Coleman, 23 AD3d 1033), and we reach the issue despite defendant's failure to raise it at sentencing or on appeal inasmuch as "we cannot allow an [illegal] sentence to stand" (People v Davis, 37 AD3d 1179, 1180, lv denied 8 NY3d 983 [internal quotation marks omitted]). "Where an eligible youth is convicted of two or more crimes set forth in separate counts of an accusatory instrument . . ., the court must not find him a youthful offender with respect to any such conviction . . . unless it finds him a youthful offender with respect to all such convictions" (CPL 720.20 [2]; see People v Huther, 78 AD2d 1011). Here, defendant was convicted of "two or more crimes set forth in separate counts of an accusatory instrument" (CPL 720.20 [2]) and, thus, upon adjudicating him a youthful offender with respect to robbery in the first degree under count one of the superior court information, the court was required to adjudicate him a youthful offender with respect to the remaining counts (see Huther, 78 AD2d at 1011). Moreover, having adjudicated defendant a youthful offender, the court "was without authority to impose consecutive sentences in excess of four years" (People v Ralph W.C., 21 AD3d 904, 905; see Penal Law § 60.02 [2]; People v Simmons, 188 AD2d 668, 669, lv denied 81 NY2d 893). We therefore reverse the judgment and modify the adjudication accordingly.

People v Smith 2008 NY Slip Op 00904

An issue likely to result in appellate relief, even when unpreserved:
[W]e agree with defendant that the court erred in calculating the expiration date of the order of protection without taking into account the jail time credit to which she is entitled (see People v Clinkscales, 35 AD3d 1266, 1267; People v Hare, 27 AD3d 1171, 1172, lv denied 6 NY3d 892, 894, 898). Although defendant failed to preserve that contention for our review, we exercise our power to review that contention as a matter of discretion in the interest of justice (see People v Fomby, 42 AD3d 894, 895; People v Valdez, 41 AD3d 1255, lv denied 9 NY3d 882).

People v Lavilla 2008 NY Slip Op 00930
Defendant moved pursuant to CPL 440.20 (1) to set aside the postrelease supervision part of his sentence as illegally imposed or, in the alternative, for an order setting forth that his sentence does not include a period of postrelease supervision. As limited by his brief, defendant appeals from that part of the order denying his alternative request for relief. We affirm. Pursuant to CPL 440.20 (1), a court in which the judgment of conviction was entered may set aside the sentence on specified grounds and, if defendant had sought to set aside his sentence or withdraw his plea, we would be compelled to permit him to do so (see People v Hill, 9 NY3d 189). Defendant has disavowed his prior request to set aside his sentence, however, and challenges only Supreme Court's refusal to issue an order setting forth that the sentence does not include a period of postrelease supervision. The statute does not authorize the court to issue such an order (see CPL 440.20 [1]), and we thus conclude that the court properly refused to grant that relief.

People v Aaron V. 2008 NY Slip Op 00931

A count dismissed based on an issue raised only in an appellant's pro se supplemental brief.

We agree with the contention of defendant in his pro se supplemental brief that the court erred in failing to grant that part of his omnibus motion seeking to dismiss the third count of the indictment, charging him with sexual abuse in the third degree, on the ground that it was facially defective. "The indictment must set forth a time interval that reasonably serves the function of protecting defendant's constitutional right to be informed of the nature and cause of the [*2]accusation" (People v Risolo, 261 AD2d 921, 921 [internal quotation marks omitted]) and, here, the 12-month period set forth in that count was unreasonable (see People v Beauchamp, 74 NY2d 639, 641; People v Keindl, 68 NY2d 410, 419, rearg denied 69 NY2d 823; see also People v Sedlock, 8 NY3d 535, 539-540), in view of the fact that the victim was 13 or 14 years old during that time period and thus was capable "of discerning, if not exact dates, at least seasons, school holidays, birthdays, or other events which could establish a frame of reference to assist [her] in narrowing the time spans alleged" (Keindl, 68 NY2d at 420). Contrary to the further contention of defendant in his pro se supplemental brief, however, the 4½;-month time period set forth in the first count, charging him with rape in the first degree, was not excessive, in view of the nature of the offense and the age of the victim.

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