Mr. Hernandez challenged his conviction on the ground that the the superior court information (SCI) upon which he was prosecuted was jurisdictionally defective because he was not held for the action of a grand jury by the local criminal court as required by CPL 195.10 (1) (a). On appeal in People v Hernandez (2009 NY Slip Op 04570 4th Dept 6/5/2009) the Court finds that "the record establishes that defendant was arraigned by the local criminal court and that the matter was adjourned for further proceedings. There is no indication in the record that a preliminary hearing was held." So does the Court rule for Mr. Hernandez? No. The Court explained that

the record does establish that Supreme Court was satisfied with the waiver of the indictment and executed an order to that effect. We thus "may presume that the matter was properly before that court" (People v Chad S., 237 AD2d 986, lv denied 90 NY2d 856; see People v Hurd, 12 AD3d 1198, 1199, lv denied 4 NY3d 764).

But in both People v Chad S. (237 AD2d 986) and People v Hurd (12 A.D.3d 1198) the Court had found that "the record fails to establish that defendant did not waive a preliminary hearing, that a hearing was not held, or that the charges were still pending in City Court." there was no such finding in Hernandez, yet the Court reached same result, simply because of the presumption.

Mr. Hernandez challenged his conviction on the ground that the the superior court information (SCI) upon which he was prosecuted was jurisdictionally defective because he was not held for the action of a grand jury by the local criminal court as required by CPL 195.10 (1) (a). On appeal in People v Hernandez (2009 NY Slip Op 04570 4th Dept 6/5/2009) the Court finds that "the record establishes that defendant was arraigned by the local criminal court and that the matter was adjourned for further proceedings. There is no indication in the record that a preliminary hearing was held." So does the Court rule for Mr. Hernandez? No. The Court explained that

the record does establish that Supreme Court was satisfied with the waiver of the indictment and executed an order to that effect. We thus "may presume that the matter was properly before that court" (People v Chad S., 237 AD2d 986, lv denied 90 NY2d 856; see People v Hurd, 12 AD3d 1198, 1199, lv denied 4 NY3d 764).

But in both People v Chad S. (237 AD2d 986) and People v Hurd (12 A.D.3d 1198) the Court had found that "the record fails to establish that defendant did not waive a preliminary hearing, that a hearing was not held, or that the charges were still pending in City Court." there was no such finding in Hernandez, yet the Court reached same result, simply because of the presumption.

In People v Brewer (2009 NY Slip Op 04548 4th Dept 6/5/09) the Court reduced the defendant's SORA level from a level three to a level two even though the defendant was presumptively a level three risk pursuant to the risk assessment instrument. The Court ruled that the lower court's determination was not an "abuse of discretion" it was, under the circumstances, an "improvident exercise of discretion." The Court explained that

that there is clear and convincing evidence of special circumstances to warrant a downward departure from the presumptive risk level (see People v Weatherley, 41 AD3d 1238; see also People v Smith, 30 AD3d 1070). Defendant was 20 years old when he engaged in the underlying offense, i.e., sexual activity with a 16-year-old female who admitted that she willingly engaged in the sexual activity. There was no allegation or evidence of forcible compulsion. The record further establishes that this was defendant's first and only sex offense and that defendant was enrolled in sex offender counseling at the time of the SORA hearing.

Thus, the Court decided to "substitute [its] own discretion 'even in the absence of an abuse [of discretion]' (Matter of Von Bulow, 63 NY2d 221, 224)." Since this finding that there was an "improvident exercise of discretion" is an act of discretion, not a ruling on the law, it is not reviewable by the Court of Appeals. People v Baker, 64 NY2d 1027 (1985).

It is important for appellate counsel to realize that the discretionary authority of the Appellate Division is as broad as that of the trial court (Matter of Von Bulow, 63 NY2d 221, 225, n.; People v Belge, 41 NY2d 60) and when it is exercised it is not reviewable unless it is abused. People v Baker, 64 NY2d 1027 (1985).

In People v Brewer (2009 NY Slip Op 04548 4th Dept 6/5/09) the Court reduced the defendant's SORA level from a level three to a level two even though the defendant was presumptively a level three risk pursuant to the risk assessment instrument. The Court ruled that the lower court's determination was not an "abuse of discretion" it was, under the circumstances, an "improvident exercise of discretion." The Court explained that

that there is clear and convincing evidence of special circumstances to warrant a downward departure from the presumptive risk level (see People v Weatherley, 41 AD3d 1238; see also People v Smith, 30 AD3d 1070). Defendant was 20 years old when he engaged in the underlying offense, i.e., sexual activity with a 16-year-old female who admitted that she willingly engaged in the sexual activity. There was no allegation or evidence of forcible compulsion. The record further establishes that this was defendant's first and only sex offense and that defendant was enrolled in sex offender counseling at the time of the SORA hearing.

Thus, the Court decided to "substitute [its] own discretion 'even in the absence of an abuse [of discretion]' (Matter of Von Bulow, 63 NY2d 221, 224)." Since this finding that there was an "improvident exercise of discretion" is an act of discretion, not a ruling on the law, it is not reviewable by the Court of Appeals. People v Baker, 64 NY2d 1027 (1985).

It is important for appellate counsel to realize that the discretionary authority of the Appellate Division is as broad as that of the trial court (Matter of Von Bulow, 63 NY2d 221, 225, n.; People v Belge, 41 NY2d 60) and when it is exercised it is not reviewable unless it is abused. People v Baker, 64 NY2d 1027 (1985).

The Court of Appeals held in People v Grajales (8 NY3d 861 [2007]) that the People are not required to give 710.30 notice of identifications of the defendant made during a photo identification procedure, such as an array The Court reasoned that because testimony regarding photographic identification procedures is not admissible, the People cannot "intend to offer at trial" such testimony. Thus, such testimony does not fall within the scope of 710.30.

The scope of this decision might be more limited than some have feared. A Supreme Court (Kings County) judge in People v Smothers (20 Misc 3d 654[Sup Ct, Kings County 2008]), has issued a decision, which interprets Grajales and 710.30 as requiring the People to give 710.30 notice of their intent to offer in-court identification testimony of any witness who has previously identified the defendant in a photo-array or other photographic identification procedure, notwithstanding the People's lack of intent to offer testimony of the pretrial identification procedure. The court explained that where "the pretrial identification procedure is one that would not be admissible at trial on he People's-case in-chief, such as a photographic array,, it is that identification procedure that need not be noticed." However, "Grajales did not hold nor even suggest that the People are not obligated to serve CPL 710.30 notice as to a prospective identifying witness who made a prior photographic identification."

The holding in Smothers appears to be supported by 710.30's language. Notice is required "whenever the people intend to offer at trial" "testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such" (CPL 710.30 [1] [emphasis added]).

Thus, it can be argued that in-court identification testimony by a witness who previously identified the defendant as in a photo-array is "testimony regarding an observation of the defendant . . . upon some other occasion relevant to the case [i.e. testimony regarding the witness's observation of the defendant in-court] by a witness who has previously identified him as such."

Written by Drew R. DuBrin, Special Assistant Monroe County Public Defender

The Court of Appeals held in People v Grajales (8 NY3d 861 [2007]) that the People are not required to give 710.30 notice of identifications of the defendant made during a photo identification procedure, such as an array The Court reasoned that because testimony regarding photographic identification procedures is not admissible, the People cannot "intend to offer at trial" such testimony. Thus, such testimony does not fall within the scope of 710.30.

The scope of this decision might be more limited than some have feared. A Supreme Court (Kings County) judge in People v Smothers (20 Misc 3d 654[Sup Ct, Kings County 2008]), has issued a decision, which interprets Grajales and 710.30 as requiring the People to give 710.30 notice of their intent to offer in-court identification testimony of any witness who has previously identified the defendant in a photo-array or other photographic identification procedure, notwithstanding the People's lack of intent to offer testimony of the pretrial identification procedure. The court explained that where "the pretrial identification procedure is one that would not be admissible at trial on he People's-case in-chief, such as a photographic array,, it is that identification procedure that need not be noticed." However, "Grajales did not hold nor even suggest that the People are not obligated to serve CPL 710.30 notice as to a prospective identifying witness who made a prior photographic identification."

The holding in Smothers appears to be supported by 710.30's language. Notice is required "whenever the people intend to offer at trial" "testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such" (CPL 710.30 [1] [emphasis added]).

Thus, it can be argued that in-court identification testimony by a witness who previously identified the defendant as in a photo-array is "testimony regarding an observation of the defendant . . . upon some other occasion relevant to the case [i.e. testimony regarding the witness's observation of the defendant in-court] by a witness who has previously identified him as such."

Written by Drew R. DuBrin, Special Assistant Monroe County Public Defender

Warrant Required for Police to Place a GPS Device on Someone's Vehicle

By a 4-3 vote, the Court of Appeals held in People v Weaver (5/12/09) that the New York Constitution requires that a warrant issued upon probable cause be issued before the police can monitor someone's whereabouts by surreptitiously attaching an electronic device (GPS) to that person's automobile. An excellent summary and analysis of Weaver can be found at New York Court Watcher.

A contrary holding would mean that police without warrants or cause could attach such devices to all vehicles in New York and record the minute by minute location of every vehicle. There may be places where that is acceptable. Thankfully, New York is not one of them.