In a 5-2 decision, the Court of Appeals, in People v Maracle (2012 NY Slip Op 05121 [NY 6/27/12]), held that a waive of the right to appeal a conviction does not necessarily waive the right to appeal the sentence and that under the facts .The Court explained that

While it is evident that defendant waived her right to appeal her conviction, there is no indication in the record that defendant waived the right to appeal the harshness of her sentence. She seeks only the right to appeal the harshness of the sentence that went from one of probation to a maximum sentence of imprisonment on each count of the indictment because she failed to comply with a condition set by the court. The CPL makes clear the distinction between a conviction and a sentence. A "conviction" is defined as "the entry of a plea of guilty to, or verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more counts of such instrument" (CPL 1.20 [13]). "Sentence" is defined as "the imposition and entry of a sentence upon conviction" (CPL 1.20 [14]). Both the "conviction" and the "sentence" comprise the "judgment," which is "completed by the imposition and entry of the sentence" (CPL 1.20 [15]). As such, although defendant waived her right to appeal the conviction, she never expressly waived her right to appeal the sentence. Unlike the situation in People v Hidalgo (91 NY2d 733 [1998]), it is not clear that "the trial court engaged in a full and adequate colloquy, and [that] defendant expressly waived her right to appeal without limitation." It is evident from the colloquy that the court, at most, apprised defendant that if she did not pay one half of the restitution by sentencing, there would be no promise as to her sentence and that she would not be able to withdraw her plea - something she is not seeking. There was no mention of defendant not being able to appeal the harshness of her sentence. The most critical error that occurred here, and the one that distinguishes this case from Hidalgo, is that during the plea colloquy in this case, the court did not explain that the appeal waiver would bar defendant from not only challenging the sentence she hoped to receive, i.e., five years probation, but also any sentence that the court would impose in the event defendant failed to meet the court's condition of paying $23,000 by the date of sentencing. It cannot be said that, at the time of her plea colloquy five months before the imposition of sentence, defendant knowingly and intelligently waived her right to appeal a sentence that, at that point, had not yet been declared by the court. In that respect, this case is more analogous to our holding in People v Johnson (14 NY3d 483 [2010]).

In a 5-2 decision, the Court of Appeals, in People v Maracle (2012 NY Slip Op 05121 [NY 6/27/12]), held that a waive of the right to appeal a conviction does not necessarily waive the right to appeal the sentence and that under the facts .The Court explained that

While it is evident that defendant waived her right to appeal her conviction, there is no indication in the record that defendant waived the right to appeal the harshness of her sentence. She seeks only the right to appeal the harshness of the sentence that went from one of probation to a maximum sentence of imprisonment on each count of the indictment because she failed to comply with a condition set by the court. The CPL makes clear the distinction between a conviction and a sentence. A "conviction" is defined as "the entry of a plea of guilty to, or verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more counts of such instrument" (CPL 1.20 [13]). "Sentence" is defined as "the imposition and entry of a sentence upon conviction" (CPL 1.20 [14]). Both the "conviction" and the "sentence" comprise the "judgment," which is "completed by the imposition and entry of the sentence" (CPL 1.20 [15]). As such, although defendant waived her right to appeal the conviction, she never expressly waived her right to appeal the sentence. Unlike the situation in People v Hidalgo (91 NY2d 733 [1998]), it is not clear that "the trial court engaged in a full and adequate colloquy, and [that] defendant expressly waived her right to appeal without limitation." It is evident from the colloquy that the court, at most, apprised defendant that if she did not pay one half of the restitution by sentencing, there would be no promise as to her sentence and that she would not be able to withdraw her plea - something she is not seeking. There was no mention of defendant not being able to appeal the harshness of her sentence. The most critical error that occurred here, and the one that distinguishes this case from Hidalgo, is that during the plea colloquy in this case, the court did not explain that the appeal waiver would bar defendant from not only challenging the sentence she hoped to receive, i.e., five years probation, but also any sentence that the court would impose in the event defendant failed to meet the court's condition of paying $23,000 by the date of sentencing. It cannot be said that, at the time of her plea colloquy five months before the imposition of sentence, defendant knowingly and intelligently waived her right to appeal a sentence that, at that point, had not yet been declared by the court. In that respect, this case is more analogous to our holding in People v Johnson (14 NY3d 483 [2010]).

EED Charge Required Where Defendant "Snapped" and Inflicted 50+ wounds

In People v McKenzie (#133 decided 6/26/12) the Court held that, in determining whether to charge Extreme Emotional Disturbance in a homicide trial, "the relevant inquiry was whether the evidence, viewed most favorably to defendant, presented a triable question, we believe that the issue of the reasonableness of defendant's explanation should have been put to the jury."  I believe that, while this language is not the precise formulation I was hoping for when I argued McKenzie, that it does support an argument I made at a recent CLE.  Specifically, I think that if there is a valid line of reasoning and permissible inferences which would support a particular lesser, then the lesser must be charged - it's the same test as legal sufficiency for the prosecution.  Otherwise the jury is being limited as trier of fact, and that function is effectively shared with the trial court.

The Court of Appeals stressed that "a court is bound to view the evidence in the light most favorable to the defendant ... an exercise understood to be incompatible with weighing the evidence to resolve competing inferences" (citation omitted), "The charge must be given if there is evidence reasonably supportive of the defense, even if there is other evidence which, if credited, would negate it".  "Reasonably supportive", to my mind, is the same test as for legal sufficiency.  The defense does not need to show that the jury should rule a certain way, or is likely to, merely that it would not be unreasonable or based solely on speculation.

The McKenzie decision is rooted in the EED statute: "the evidence would have permitted defendant's jury reasonably to conclude by a preponderance (Penal Law § 25.00 [2]) that, at the time of the homicide, he was affected by an extreme emotional disturbance, and that that disturbance was supported by a reasonable explanation or excuse rooted in the situation as he perceived it".  However, the phrase "reasonably to conclude" I think goes to all defense requests for lessers. 



An Appellate Division is not permitted to weigh the alternatives and find that the defendant's position is reasonable, but not reasonable enough.  "Although, it is true, as the Appellate Division evidently found, that the evidence in the aggregate would have permitted the jury to reject defendant's claim of emotional disturbance and loss of control, it was instead the viability of the alternative, contrary inference - that defendant in fact experienced an emotional break which caused him to 'snap' - that should have guided the trial court's determination of the charge request."  Neither the AD nor the trial court can weigh the facts: "A claim of extreme emotional disturbance must, of course, be credibly supported if the defense upon which it rests is to be submitted to the jury ... but that requirement was not intended to cast the trial court in the fact-finding role properly reserved to the jury" (citation omitted).  A trial court is only permitted to deny a charge based on "objectively discernible deficiencies."

Specifically regarding EED, the mental infirmity required is simply a loss of self control (perhaps a "profound" loss of self-control).  "The court denied the charge instead upon the ground that there was no proof that defendant had a 'mental infirmity that r[ose] short of a mental disease or defect.'  But the purpose of this quoted language, as it has been used in our decisions to describe the predicate for an extreme emotional disturbance defense, patently was not to tether the defense to proof of an underlying psychiatric disorder; 'mental infirmity' in the presently relevant context refers more broadly to any reasonably explicable emotional disturbance so extreme as to result in and become manifest as a profound loss of self- control." (citations omitted).  No psychiatric diagnosis is necessary ("it may be established without psychiatric evidence"), though one would obviously be relevant and helpful.  The court recognized that a conviction for either murder in the second degree or manslaughter in the first degree represented "highly punitive options".

There was concern at the Court of Appeals regarding the necessity of charging EED in all domestic dispute homicides, and this is something to keep in mind for the future (the court held that the reasonableness of the EED "might well be understood to pose a closer question").  The decision was unanimous, opinion by Chief Judge Lippman.

EED Charge Required Where Defendant "Snapped" and Inflicted 50+ wounds

In People v McKenzie (#133 decided 6/26/12) the Court held that, in determining whether to charge Extreme Emotional Disturbance in a homicide trial, "the relevant inquiry was whether the evidence, viewed most favorably to defendant, presented a triable question, we believe that the issue of the reasonableness of defendant's explanation should have been put to the jury."  I believe that, while this language is not the precise formulation I was hoping for when I argued McKenzie, that it does support an argument I made at a recent CLE.  Specifically, I think that if there is a valid line of reasoning and permissible inferences which would support a particular lesser, then the lesser must be charged - it's the same test as legal sufficiency for the prosecution.  Otherwise the jury is being limited as trier of fact, and that function is effectively shared with the trial court.

The Court of Appeals stressed that "a court is bound to view the evidence in the light most favorable to the defendant ... an exercise understood to be incompatible with weighing the evidence to resolve competing inferences" (citation omitted), "The charge must be given if there is evidence reasonably supportive of the defense, even if there is other evidence which, if credited, would negate it".  "Reasonably supportive", to my mind, is the same test as for legal sufficiency.  The defense does not need to show that the jury should rule a certain way, or is likely to, merely that it would not be unreasonable or based solely on speculation.

The McKenzie decision is rooted in the EED statute: "the evidence would have permitted defendant's jury reasonably to conclude by a preponderance (Penal Law § 25.00 [2]) that, at the time of the homicide, he was affected by an extreme emotional disturbance, and that that disturbance was supported by a reasonable explanation or excuse rooted in the situation as he perceived it".  However, the phrase "reasonably to conclude" I think goes to all defense requests for lessers. 



An Appellate Division is not permitted to weigh the alternatives and find that the defendant's position is reasonable, but not reasonable enough.  "Although, it is true, as the Appellate Division evidently found, that the evidence in the aggregate would have permitted the jury to reject defendant's claim of emotional disturbance and loss of control, it was instead the viability of the alternative, contrary inference - that defendant in fact experienced an emotional break which caused him to 'snap' - that should have guided the trial court's determination of the charge request."  Neither the AD nor the trial court can weigh the facts: "A claim of extreme emotional disturbance must, of course, be credibly supported if the defense upon which it rests is to be submitted to the jury ... but that requirement was not intended to cast the trial court in the fact-finding role properly reserved to the jury" (citation omitted).  A trial court is only permitted to deny a charge based on "objectively discernible deficiencies."

Specifically regarding EED, the mental infirmity required is simply a loss of self control (perhaps a "profound" loss of self-control).  "The court denied the charge instead upon the ground that there was no proof that defendant had a 'mental infirmity that r[ose] short of a mental disease or defect.'  But the purpose of this quoted language, as it has been used in our decisions to describe the predicate for an extreme emotional disturbance defense, patently was not to tether the defense to proof of an underlying psychiatric disorder; 'mental infirmity' in the presently relevant context refers more broadly to any reasonably explicable emotional disturbance so extreme as to result in and become manifest as a profound loss of self- control." (citations omitted).  No psychiatric diagnosis is necessary ("it may be established without psychiatric evidence"), though one would obviously be relevant and helpful.  The court recognized that a conviction for either murder in the second degree or manslaughter in the first degree represented "highly punitive options".

There was concern at the Court of Appeals regarding the necessity of charging EED in all domestic dispute homicides, and this is something to keep in mind for the future (the court held that the reasonableness of the EED "might well be understood to pose a closer question").  The decision was unanimous, opinion by Chief Judge Lippman.

Court have repeatedly held that  where there "was no evidence of intended use of the weapon against another apart from its use in the killing of the murder victim" (People v Boyer, 31 AD3d 1136, 1139, lv denied 7 NY3d 865, amended on other grounds 87 AD3d 1413; see People v Wright, ___ NY3d ___, ___ [June 5, 2012]) the sentence imposed for criminal possession of a weapon must run concurrently with that for the murder. However, in People v Carter ( 2012 NY Slip Op 04845 [4th Dept 6/15/2012]) neither trial nor appellate counsel failed to argue that,as a matter of law, the trial court could not lawul order that the that Mr. Cater's sentence for  criminal possession of a weapon run consecutively with his sentence for murder. Fortunately, the Fourth Department, sua sponte, corrected and reduced this unlawful sentnece, explaining

We conclude, however, that the sentence is illegal insofar as the court directed that the sentence imposed for criminal possession of a weapon in the second degree shall run consecutively to the concurrent sentences imposed for the two counts of murder in the second degree (see People v Ramsey, 59 AD3d 1046, 1048, lv denied 12 NY3d 858; People v Fuentes, 52 AD3d 1297, 1300-1301, lv denied 11 NY3d 736). We therefore modify the judgment accordingly. " Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand' " (People v Davis, 37 AD3d 1179, 1180, lv denied 8 NY3d 983). As relevant here, the sentence is illegal because, "[p]ursuant to Penal Law § 70.25 (2), [w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, . . .' the sentences, with an exception not relevant here, must run concurrently. Based on the evidence presented at trial, . . . the court has no discretion; concurrent sentences are mandated' " (People v Roundtree, 75 AD3d 1136, 1138, lv denied 15 NY3d 855, quoting People v Hamilton, 4 NY3d 654, 658; see People v Cromwell, 71 AD3d 414, 415, lv denied 15 NY3d 803; People v Mercer, 66 AD3d 1368, 1370, lv denied 13 NY3d 940). 

Since one can not count on appellate courts to notice and correct an illegal sentence when the issue is not raised, defense counsel are reminded to always determine what sentences could lawfully be imposed on their clients.

Court have repeatedly held that  where there "was no evidence of intended use of the weapon against another apart from its use in the killing of the murder victim" (People v Boyer, 31 AD3d 1136, 1139, lv denied 7 NY3d 865, amended on other grounds 87 AD3d 1413; see People v Wright, ___ NY3d ___, ___ [June 5, 2012]) the sentence imposed for criminal possession of a weapon must run concurrently with that for the murder. However, in People v Carter ( 2012 NY Slip Op 04845 [4th Dept 6/15/2012]) neither trial nor appellate counsel failed to argue that,as a matter of law, the trial court could not lawul order that the that Mr. Cater's sentence for  criminal possession of a weapon run consecutively with his sentence for murder. Fortunately, the Fourth Department, sua sponte, corrected and reduced this unlawful sentnece, explaining

We conclude, however, that the sentence is illegal insofar as the court directed that the sentence imposed for criminal possession of a weapon in the second degree shall run consecutively to the concurrent sentences imposed for the two counts of murder in the second degree (see People v Ramsey, 59 AD3d 1046, 1048, lv denied 12 NY3d 858; People v Fuentes, 52 AD3d 1297, 1300-1301, lv denied 11 NY3d 736). We therefore modify the judgment accordingly. " Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand' " (People v Davis, 37 AD3d 1179, 1180, lv denied 8 NY3d 983). As relevant here, the sentence is illegal because, "[p]ursuant to Penal Law § 70.25 (2), [w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, . . .' the sentences, with an exception not relevant here, must run concurrently. Based on the evidence presented at trial, . . . the court has no discretion; concurrent sentences are mandated' " (People v Roundtree, 75 AD3d 1136, 1138, lv denied 15 NY3d 855, quoting People v Hamilton, 4 NY3d 654, 658; see People v Cromwell, 71 AD3d 414, 415, lv denied 15 NY3d 803; People v Mercer, 66 AD3d 1368, 1370, lv denied 13 NY3d 940). 

Since one can not count on appellate courts to notice and correct an illegal sentence when the issue is not raised, defense counsel are reminded to always determine what sentences could lawfully be imposed on their clients.

The War on Education

Wait, what? Another war on [your politically popular cause here]? I can't keep track of them all.  This one, however, is unintentional.  We backed into it by accident, La Brea Tar Pit style, while our sensibilities were addled by that Demon Weed. And not just pot, all manner of "harder" drugs too.  Turns out you don't actually have to ingest the stuff for it to alter the capacity for rational thought. 

You see, wars cost money (and lives and community resources generally).  And the money (and lives and resources) committed to a war can't be used for other stuff.  So, in a world of finite resources, the question boils down to: what matters most?  What do you care about? What will you give up other stuff to have?  In answer to that question, in 1971, that social visionary Richard M. Nixon, launched the War on Drugs.  And ever since, the government has shoveled money, lives, and resources into that furnace at an ever-increasing pace, in the service of making certain that our neighbors don't alter their consciousness by non-government sanctioned means.  The fallacy of the underlying premise - that government can control citizens' conduct by force and intimidation - works for some of the people some of the time but most of the people almost not at all.  History offers not a single example of successful prohibition, and it appears increasingly unlikely that this latest incarnation will be the first. 

But it can't be a bad thing to try, right? We have to try, don't we? Do we? I mean, what can it hurt?  Lots. Welcome to the law of unintended consequences or, to use a currently-popular military phrase, collateral damage.  In the throes of reefer madness we've lost sight of what that particular madness costs, and who is paying the price.  In our laser-like focus on where the resources are going, we've lost sight of where they're coming from.  Hence, the unintentional War on Education (and lots of other stuff too).

This graphic, No Justice For All, from Onlinecriminaljusticedegree.com offers a cocktail party simple illustration of the crushing societal burden of the War on Drugs, who is benefiting from it, and who is not.  Which would be one thing if it worked.  It's a high price to pay for abject failure.  So, what do you care about?

The War on Education

Wait, what? Another war on [your politically popular cause here]? I can't keep track of them all.  This one, however, is unintentional.  We backed into it by accident, La Brea Tar Pit style, while our sensibilities were addled by that Demon Weed. And not just pot, all manner of "harder" drugs too.  Turns out you don't actually have to ingest the stuff for it to alter the capacity for rational thought. 

You see, wars cost money (and lives and community resources generally).  And the money (and lives and resources) committed to a war can't be used for other stuff.  So, in a world of finite resources, the question boils down to: what matters most?  What do you care about? What will you give up other stuff to have?  In answer to that question, in 1971, that social visionary Richard M. Nixon, launched the War on Drugs.  And ever since, the government has shoveled money, lives, and resources into that furnace at an ever-increasing pace, in the service of making certain that our neighbors don't alter their consciousness by non-government sanctioned means.  The fallacy of the underlying premise - that government can control citizens' conduct by force and intimidation - works for some of the people some of the time but most of the people almost not at all.  History offers not a single example of successful prohibition, and it appears increasingly unlikely that this latest incarnation will be the first. 

But it can't be a bad thing to try, right? We have to try, don't we? Do we? I mean, what can it hurt?  Lots. Welcome to the law of unintended consequences or, to use a currently-popular military phrase, collateral damage.  In the throes of reefer madness we've lost sight of what that particular madness costs, and who is paying the price.  In our laser-like focus on where the resources are going, we've lost sight of where they're coming from.  Hence, the unintentional War on Education (and lots of other stuff too).

This graphic, No Justice For All, from Onlinecriminaljusticedegree.com offers a cocktail party simple illustration of the crushing societal burden of the War on Drugs, who is benefiting from it, and who is not.  Which would be one thing if it worked.  It's a high price to pay for abject failure.  So, what do you care about?

As I wrote a few years ago, 

the most difficult and important part of an appellate attorney's job is identifying possible issues. An appellate record is like a puzzle that the attorney must solve to discover what issues are present and worth raising. An issue not raised is not likely to result in reversal. That should be enough incentive to scour the record for possibly meritorious issues. If not, the possibility that the court may reverse a conviction on an issue which you failed to find or declined to raise, but was raised by a client in a supplemental brief, should provide motivation.

The decision of the Appellate Division, Fourth Department, in People v Kirk (2012 NY Slip Op 04461 [4th Dept 6/8/12]) is another reminder of how unsettling it is for appellate counsel to have an appellate court grant relief on a ground not raised by counsel, but in the appellant's pro se supplemental brief:

Defendant's remaining contentions are raised in his pro se supplemental brief. Although defendant's contention that the indictment was duplicitous on its face is not preserved for our review (see People v Becoats, 17 NY3d 643, 650-651), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see People v Bracewell, 34 AD3d 1197, 1198). .. We conclude.. that counts 2-7, 19-20, 22, 24 and 26-27 "were rendered duplicitous by the trial evidence tending to establish the commission of [multiple] criminal acts during the time period[s] specified [with respect to those counts]" (People v Bennett, 52 AD3d 1185, 1186, lv denied 11 NY3d 734; see generally People v Keindl, 68 NY2d 410, 417-418, rearg denied 69 NY2d 823). We therefore further modify the judgment by reversing those parts convicting defendant of criminal sexual act in the first degree under counts 2-4, sexual abuse in the first degree under counts 5-6, 19-20, 22 and 24 and sexual abuse in the second degree under counts 7 and 26-27 of the indictment and dismissing those counts without prejudice to the People to re-present any appropriate charges under those counts of the indictment to another grand jury (see Bennett, 52 AD3d at 1186; Bracewell, 34 AD3d at 1198-1199). 

The danger in failing to raise non-frivolous, but unpreserved error it that you might one day have to write to your client about the issue he won that you did not raise.

As I wrote a few years ago, 

the most difficult and important part of an appellate attorney's job is identifying possible issues. An appellate record is like a puzzle that the attorney must solve to discover what issues are present and worth raising. An issue not raised is not likely to result in reversal. That should be enough incentive to scour the record for possibly meritorious issues. If not, the possibility that the court may reverse a conviction on an issue which you failed to find or declined to raise, but was raised by a client in a supplemental brief, should provide motivation.

The decision of the Appellate Division, Fourth Department, in People v Kirk (2012 NY Slip Op 04461 [4th Dept 6/8/12]) is another reminder of how unsettling it is for appellate counsel to have an appellate court grant relief on a ground not raised by counsel, but in the appellant's pro se supplemental brief:

Defendant's remaining contentions are raised in his pro se supplemental brief. Although defendant's contention that the indictment was duplicitous on its face is not preserved for our review (see People v Becoats, 17 NY3d 643, 650-651), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see People v Bracewell, 34 AD3d 1197, 1198). .. We conclude.. that counts 2-7, 19-20, 22, 24 and 26-27 "were rendered duplicitous by the trial evidence tending to establish the commission of [multiple] criminal acts during the time period[s] specified [with respect to those counts]" (People v Bennett, 52 AD3d 1185, 1186, lv denied 11 NY3d 734; see generally People v Keindl, 68 NY2d 410, 417-418, rearg denied 69 NY2d 823). We therefore further modify the judgment by reversing those parts convicting defendant of criminal sexual act in the first degree under counts 2-4, sexual abuse in the first degree under counts 5-6, 19-20, 22 and 24 and sexual abuse in the second degree under counts 7 and 26-27 of the indictment and dismissing those counts without prejudice to the People to re-present any appropriate charges under those counts of the indictment to another grand jury (see Bennett, 52 AD3d at 1186; Bracewell, 34 AD3d at 1198-1199). 

The danger in failing to raise non-frivolous, but unpreserved error it that you might one day have to write to your client about the issue he won that you did not raise.

Appellate courts confronted with prosecutorial misconduct struggle to find a means to effectively communicate their disapproval of the misconduct without reversing the conviction.  Consequently, appellate judges sometimes admonish the appellate prosecutor during oral argument and then issue a decision affirming the conviction upon a finding that the misconduct was harmless error.  Of course, the discomfort experienced by the appellate counsel is unlikely to produce a change of behavior in the trial prosecutor who obtained the conviction which was affirmed. Indeed, more than a quarter of a century ago one commentator wrote that

Perhaps the most significant reason for the continued presence of prosecutorial misconduct is the harmless error doctrine. Under this doctrine, an appellate court can affirm a conviction despite the presence of serious misconduct during the trial. (Bennet Gershman, Why Prosecutors Misbehave).

Thus, back in 1991, the chapter on  Appeals in Criminal Cases, which  I co-authored for the New York State Bar Association's Criminal Practice Handbook, noted the ineffectiveness of "reprimands without reversals" in cases of prosecutorial misconduct, and urged that if courts were not going to reverse for misconduct court's could more effectively reduce misconduct "by identifying the offending prosecutor by name if the published decision."  (p. 775, n.171).

Not surprisingly, this suggestion was ignored, prosecutors continued to engage in misconduct and appellate courts continue to find the misconduct harmless and on and on.

So last year in this blog, I suggested that "maybe the Court could deter the misconduct by simply naming in its decision the trial prosecutor who engaged in misconduct. The current practice of affirming while noting that the unnamed prosecutor acted improperly is a demonstrated failure at impacting behavior."

Today, while reading the decisions of the Appellate Division, Fourth Department, I experienced a pleasant shock The decision in People v Huntsman (2012 NY Slip Op 04476  [4th Dept 6/8/12]) begins as follows:

On appeal from a judgment convicting him following a jury trial of 10 separate offenses stemming from multiple incidents, defendant contends, inter alia, that misconduct on the part of the prosecutor, Assistant District Attorney Jeffrey L. Taylor, requires reversal. Although defense counsel failed to object to any of the alleged acts of misconduct and thus failed to preserve defendant's present contention for our review (see People v Paul, 78 AD3d 1684, 1684-1685, lv denied 16 NY3d 834), we are nevertheless compelled to exercise our power to address it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). This Court has repeatedly admonished Mr. Taylor for various acts of misconduct (People v Wildrick, 83 AD3d 1455, 1458, lv denied 17 NY3d 803; People v Morrice, 61 AD3d 1390, 1391-1392; People v Carter, 31 AD3d 1167, 1169), yet the record on this appeal establishes that his misconduct has continued. We again admonish Mr. Taylor and remind him that prosecutors have "special responsibilities . . . to safeguard the integrity of criminal proceedings and fairness in the criminal process" (People v Santorelli, 95 NY2d 412, 421). With respect to the trial at issue on this appeal, however, we "cannot say that his [mis]conduct . . . jeopardize[d] the fairness of the trial" (People v Johnson, 62 AD2d 555, 560, affd 47 NY2d 785, cert denied 444 US 857; see [*2]People v Alicea, 37 NY2d 601, 603; Paul, 78 AD3d at 1685). 

In case you are wondering, Jeffrey Taylor was the unnamed prosecutor whose misconduct was so egregious that it led to reversal, even absent objection in People v Morrice  (61 AD3d 1390 [4th Dept 2009]) (see).

 Hopefully the word will get out that in the Fourth Department the price for misconduct has just gone up and.that this decision in Huntsman will have the desired chilling effect on the behavior of other trial prosecutors considering engaging in misconduct.

Appellate courts confronted with prosecutorial misconduct struggle to find a means to effectively communicate their disapproval of the misconduct without reversing the conviction.  Consequently, appellate judges sometimes admonish the appellate prosecutor during oral argument and then issue a decision affirming the conviction upon a finding that the misconduct was harmless error.  Of course, the discomfort experienced by the appellate counsel is unlikely to produce a change of behavior in the trial prosecutor who obtained the conviction which was affirmed. Indeed, more than a quarter of a century ago one commentator wrote that

Perhaps the most significant reason for the continued presence of prosecutorial misconduct is the harmless error doctrine. Under this doctrine, an appellate court can affirm a conviction despite the presence of serious misconduct during the trial. (Bennet Gershman, Why Prosecutors Misbehave).

Thus, back in 1991, the chapter on  Appeals in Criminal Cases, which  I co-authored for the New York State Bar Association's Criminal Practice Handbook, noted the ineffectiveness of "reprimands without reversals" in cases of prosecutorial misconduct, and urged that if court's were not going to reverse for misconduct court's could more effectively reduce misconduct "by identifying the offending prosecutor by name if the published decision."  (p. 775, n.171).

Not surprisingly, this suggestion was ignored, prosecutors continued to engage in misconduct and appellate courts continue to find the misconduct harmless and on and on.

So last year in this blog, I suggested that "maybe the Court could deter the misconduct by simply naming in its decision the trial prosecutor who engaged in misconduct. The current practice of affirming while noting that the unnamed prosecutor acted improperly is a demonstrated failure at impacting behavior."

Today, while reading the decisions of the Appellate Division, Fourth Department, I experienced a pleasant shock The decision in People v Huntsman (2012 NY Slip Op 04476  [4th Dept 6/8/12]) begins as follows:

On appeal from a judgment convicting him following a jury trial of 10 separate offenses stemming from multiple incidents, defendant contends, inter alia, that misconduct on the part of the prosecutor, Assistant District Attorney Jeffrey L. Taylor, requires reversal. Although defense counsel failed to object to any of the alleged acts of misconduct and thus failed to preserve defendant's present contention for our review (see People v Paul, 78 AD3d 1684, 1684-1685, lv denied 16 NY3d 834), we are nevertheless compelled to exercise our power to address it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). This Court has repeatedly admonished Mr. Taylor for various acts of misconduct (People v Wildrick, 83 AD3d 1455, 1458, lv denied 17 NY3d 803; People v Morrice, 61 AD3d 1390, 1391-1392; People v Carter, 31 AD3d 1167, 1169), yet the record on this appeal establishes that his misconduct has continued. We again admonish Mr. Taylor and remind him that prosecutors have "special responsibilities . . . to safeguard the integrity of criminal proceedings and fairness in the criminal process" (People v Santorelli, 95 NY2d 412, 421). With respect to the trial at issue on this appeal, however, we "cannot say that his [mis]conduct . . . jeopardize[d] the fairness of the trial" (People v Johnson, 62 AD2d 555, 560, affd 47 NY2d 785, cert denied 444 US 857; see [*2]People v Alicea, 37 NY2d 601, 603; Paul, 78 AD3d at 1685). 

In case you are wondering, Jeffrey Taylor was the unnamed prosecutor whose misconduct was so egregious that it led to reversal, even absent objection in People v Morrice  (61 AD3d 1390 [4th Dept 2009]) (see).

 Hopefully the word will get out that in the Fourth Department the price for misconduct has just gone up and.that this decision in Huntsman will have the desired chilling effect on the behavior of other trial prosecutors considering engaging in misconduct.