County court had ruled that police had no basis to stop the defendant, and that it could not be concluded that he stopped voluntarily. County court nonetheless refused to suppress the evidence obtained from the stop. The Court of Appeals reversed and suppressed. All that is surprising is that three judges dissented from this two paragraph opinion.
The dissenters objected that, since the defendant and a companion were on separate motorcycles, when police legitimately stopped the friend both riders pulled over, since it was unclear who was being signalled. The dissenters admitted that the officer did not direct defendant “either to stay or leave”, and thus he remained until another officer arrived and noticed he was drunk.
Maybe I am missing something. Perhaps the dissenters focused on the word "stop" and concluded that pulling over the defendant was an acceptable collateral consequence to the legitimate stop, which is reasonable enough. However, it seems to me that if the police do not inform the second rider that he is free to leave, then his continued detention is coerced and therefore illegitimate. The dissenters analogy was to a passenger in a car, who is detained when the driver is. This seems inapt. Passengers do not travel in their own vehicles, hence the name.
If an officer shouts "stop" at a pedestrian he is not free to detain everyone within earshot for as long as he likes so long as they stopped when he shouted. The only mistake the majority made, that I can see, was in failing to revise and extend their memorandum to beat the dissenters with blunt prose.
Saturday, July 3, 2010
People v King - Court of Appeals - June 29
County court had ruled that police had no basis to stop the defendant, and that it could not be concluded that he stopped voluntarily. County court nonetheless refused to suppress the evidence obtained from the stop. The Court of Appeals reversed and suppressed. All that is surprising is that three judges dissented from this two paragraph opinion.
The dissenters objected that, since the defendant and a companion were on separate motorcycles, when police legitimately stopped the friend both riders pulled over, since it was unclear who was being signalled. The dissenters admitted that the officer did not direct defendant “either to stay or leave”, and thus he remained until another officer arrived and noticed he was drunk.
Maybe I am missing something. Perhaps the dissenters focused on the word "stop" and concluded that pulling over the defendant was an acceptable collateral consequence to the legitimate stop, which is reasonable enough. However, it seems to me that if the police do not inform the second rider that he is free to leave, then his continued detention is coerced and therefore illegitimate. The dissenters analogy was to a passenger in a car, who is detained when the driver is. This seems inapt. Passengers do not travel in their own vehicles, hence the name.
If an officer shouts "stop" at a pedestrian he is not free to detain everyone within earshot for as long as he likes so long as they stopped when he shouted. The only mistake the majority made, that I can see, was in failing to revise and extend their memorandum to beat the dissenters with blunt prose.
The dissenters objected that, since the defendant and a companion were on separate motorcycles, when police legitimately stopped the friend both riders pulled over, since it was unclear who was being signalled. The dissenters admitted that the officer did not direct defendant “either to stay or leave”, and thus he remained until another officer arrived and noticed he was drunk.
Maybe I am missing something. Perhaps the dissenters focused on the word "stop" and concluded that pulling over the defendant was an acceptable collateral consequence to the legitimate stop, which is reasonable enough. However, it seems to me that if the police do not inform the second rider that he is free to leave, then his continued detention is coerced and therefore illegitimate. The dissenters analogy was to a passenger in a car, who is detained when the driver is. This seems inapt. Passengers do not travel in their own vehicles, hence the name.
If an officer shouts "stop" at a pedestrian he is not free to detain everyone within earshot for as long as he likes so long as they stopped when he shouted. The only mistake the majority made, that I can see, was in failing to revise and extend their memorandum to beat the dissenters with blunt prose.
Thursday, June 17, 2010
People v Frederick - on the unspecified powers of the court and consecutive sentences after bench trials
People v Trevor Frederick, decided June 10th, is an odd set of facts. Defendant was found guilty of attempted murder as to his former girlfriend, but the jury hung on felony murder regarding the death of the man she was with. The prosecution obtained a new indictment adding Manslaughter in the first degree. On this basis, the original indictment was dismissed by the court. On motion of the defendant, the court dismissed the new indictment because Manslaughter first had been a joinable, uncharged offense to the first indictment, and therefore was improperly added to the superseding indictment. The court then un-dismissed the original indictment. The Court of Appeals said this was fine: “Although the Criminal Procedure Law does not expressly provide for reinstatement of an indictment under the circumstances presented in this case, it does not preclude what Supreme Court did either.” Curiously, there is nothing in the CPL which prohibits trial courts from performing open-heart surgery using obsidian knives either, and a great many other things. There is a trend of sorts at the Court of Appeals, granting powers to trial courts simply because the power in question is not explicitly prohibited (see e.g. People v Wrotten decided 12/15/09).
This case also stands for and additional proposition: after a bench trial, the trial judge has greater scope to impose consecutive time, because “this was a nonjury trial where the judge, as factfinder, would have known when he sentenced defendant what facts he had found. There is no uncertainty about whether the facts supported a consecutive sentence owing to a lack of specificity in the jury charge”. Facts under which concurrent time would have been mandatory, had there been a jury, will permit consecutive time after a bench trial, on the theory that the trial judge would only have imposed a consecutive sentence if the verdict was based on conclusions which would permit such a sentence. Twenty-five to life consecutive: another reason never to waive a jury trial without a very good justification.
This case also stands for and additional proposition: after a bench trial, the trial judge has greater scope to impose consecutive time, because “this was a nonjury trial where the judge, as factfinder, would have known when he sentenced defendant what facts he had found. There is no uncertainty about whether the facts supported a consecutive sentence owing to a lack of specificity in the jury charge”. Facts under which concurrent time would have been mandatory, had there been a jury, will permit consecutive time after a bench trial, on the theory that the trial judge would only have imposed a consecutive sentence if the verdict was based on conclusions which would permit such a sentence. Twenty-five to life consecutive: another reason never to waive a jury trial without a very good justification.
People v Frederick - on the unspecified powers of the court and consecutive sentences after bench trials
People v Trevor Frederick, decided June 10th, is an odd set of facts. Defendant was found guilty of attempted murder as to his former girlfriend, but the jury hung on felony murder regarding the death of the man she was with. The prosecution obtained a new indictment adding Manslaughter in the first degree. On this basis, the original indictment was dismissed by the court. On motion of the defendant, the court dismissed the new indictment because Manslaughter first had been a joinable, uncharged offense to the first indictment, and therefore was improperly added to the superseding indictment. The court then un-dismissed the original indictment. The Court of Appeals said this was fine: “Although the Criminal Procedure Law does not expressly provide for reinstatement of an indictment under the circumstances presented in this case, it does not preclude what Supreme Court did either.” Curiously, there is nothing in the CPL which prohibits trial courts from performing open-heart surgery using obsidian knives either, and a great many other things. There is a trend of sorts at the Court of Appeals, granting powers to trial courts simply because the power in question is not explicitly prohibited (see e.g. People v Wrotten decided 12/15/09).
This case also stands for and additional proposition: after a bench trial, the trial judge has greater scope to impose consecutive time, because “this was a nonjury trial where the judge, as factfinder, would have known when he sentenced defendant what facts he had found. There is no uncertainty about whether the facts supported a consecutive sentence owing to a lack of specificity in the jury charge”. Facts under which concurrent time would have been mandatory, had there been a jury, will permit consecutive time after a bench trial, on the theory that the trial judge would only have imposed a consecutive sentence if the verdict was based on conclusions which would permit such a sentence. Twenty-five to life consecutive: another reason never to waive a jury trial without a very good justification.
This case also stands for and additional proposition: after a bench trial, the trial judge has greater scope to impose consecutive time, because “this was a nonjury trial where the judge, as factfinder, would have known when he sentenced defendant what facts he had found. There is no uncertainty about whether the facts supported a consecutive sentence owing to a lack of specificity in the jury charge”. Facts under which concurrent time would have been mandatory, had there been a jury, will permit consecutive time after a bench trial, on the theory that the trial judge would only have imposed a consecutive sentence if the verdict was based on conclusions which would permit such a sentence. Twenty-five to life consecutive: another reason never to waive a jury trial without a very good justification.
Right to Counsel - need for a clear record of prior representation
In People v McClean, decided June 10th, the Court of Appeals held that, while right to counsel deprivations are normally reviewable even in the absence of an objection, the record must be clear that there was a deprivation, so a form of preservation requirement sneaks in through the back door.
Here, defendant had spoken to police - in the presence of counsel - about the homicide in question. Three years later, he spoke to them without counsel. The Court of Appeals questioned whether the prior counsel was really representing the defendant on the murder (in which he was a suspect), or merely on the robbery which prompted defendant to co-operate on the murder. The failure of the defendant to make clear at the Huntley hearing that the prior representation was on both matters rendered the question both unpreserved and unclear on the record because “we cannot say that no evidence the People might have presented would lead us to hold otherwise”. This is an interesting formulation, as we also cannot say that no evidence the People might have presented would lead a court to hold that two plus two is a fish stick dipped in custard. Three judges dissented, saying that the attorney who was talking to the police on behalf of the defendant about a homicide and a robbery was representing him on the homicide and on the robbery, and not acting as his lawyer on the robbery and as his personal masseuse and haberdasher on the homicide.
This case also stands for the proposition that if your client is a suspect in a murder, don’t take him to the police to talk about it.
Here, defendant had spoken to police - in the presence of counsel - about the homicide in question. Three years later, he spoke to them without counsel. The Court of Appeals questioned whether the prior counsel was really representing the defendant on the murder (in which he was a suspect), or merely on the robbery which prompted defendant to co-operate on the murder. The failure of the defendant to make clear at the Huntley hearing that the prior representation was on both matters rendered the question both unpreserved and unclear on the record because “we cannot say that no evidence the People might have presented would lead us to hold otherwise”. This is an interesting formulation, as we also cannot say that no evidence the People might have presented would lead a court to hold that two plus two is a fish stick dipped in custard. Three judges dissented, saying that the attorney who was talking to the police on behalf of the defendant about a homicide and a robbery was representing him on the homicide and on the robbery, and not acting as his lawyer on the robbery and as his personal masseuse and haberdasher on the homicide.
This case also stands for the proposition that if your client is a suspect in a murder, don’t take him to the police to talk about it.
Right to Counsel - need for a clear record of prior representation
In People v McClean, decided June 10th, the Court of Appeals held that, while right to counsel deprivations are normally reviewable even in the absence of an objection, the record must be clear that there was a deprivation, so a form of preservation requirement sneaks in through the back door.
Here, defendant had spoken to police - in the presence of counsel - about the homicide in question. Three years later, he spoke to them without counsel. The Court of Appeals questioned whether the prior counsel was really representing the defendant on the murder (in which he was a suspect), or merely on the robbery which prompted defendant to co-operate on the murder. The failure of the defendant to make clear at the Huntley hearing that the prior representation was on both matters rendered the question both unpreserved and unclear on the record because “we cannot say that no evidence the People might have presented would lead us to hold otherwise”. This is an interesting formulation, as we also cannot say that no evidence the People might have presented would lead a court to hold that two plus two is a fish stick dipped in custard. Three judges dissented, saying that the attorney who was talking to the police on behalf of the defendant about a homicide and a robbery was representing him on the homicide and on the robbery, and not acting as his lawyer on the robbery and as his personal masseuse and haberdasher on the homicide.
This case also stands for the proposition that if your client is a suspect in a murder, don’t take him to the police to talk about it.
Here, defendant had spoken to police - in the presence of counsel - about the homicide in question. Three years later, he spoke to them without counsel. The Court of Appeals questioned whether the prior counsel was really representing the defendant on the murder (in which he was a suspect), or merely on the robbery which prompted defendant to co-operate on the murder. The failure of the defendant to make clear at the Huntley hearing that the prior representation was on both matters rendered the question both unpreserved and unclear on the record because “we cannot say that no evidence the People might have presented would lead us to hold otherwise”. This is an interesting formulation, as we also cannot say that no evidence the People might have presented would lead a court to hold that two plus two is a fish stick dipped in custard. Three judges dissented, saying that the attorney who was talking to the police on behalf of the defendant about a homicide and a robbery was representing him on the homicide and on the robbery, and not acting as his lawyer on the robbery and as his personal masseuse and haberdasher on the homicide.
This case also stands for the proposition that if your client is a suspect in a murder, don’t take him to the police to talk about it.
Tuesday, May 25, 2010
To understand the need for a bill of particulars it helps to first review the history of indictments in New York:
In People v. Iannone, 45 N.Y. 2d 589 (1978) the Court of Appeals reviewed the history of the use and purpose of indictments. The right to be prosecuted by indictment is guaranteed by section 6 of article 1 of the NY State Constitution. No particular form is constitutionally mandated. The Court stated in Iannone, "The requirement of indictment by Grand Jury is intended to prevent the people of this State from potentially oppressive excesses by the agents of the government in the exercise of the prosecutorial authority vested in the state (cite omitted)."
The Court noted that an indictment has traditionally served several purposes. "First and foremost, an indictment has been considered as the necessary method of providing the defendant with fair notice of the accusations made against him, so that he will be able to prepare a defense. (cites omitted). This function of the indictment is founded not upon the right to indictment by a Grand Jury, but rather on the notice requirement of section 6 of article I of our State Constitution and presumably that of the Sixth Amendment to the Federal Constitution as well. Achievement of this purpose historically involved both a legal and a factual statement: normally the indictment has been required to both charge all the legally material elements of the crime of which defendant is accused, and state that defendant in fact committed the acts which comprise those elements."
The Court continued by recognizing that another traditional function of the indictment has been to provide some means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted by the Grand Jury, rather than some alternative seized upon by the prosecution in light of subsequently discovered evidence. (When the acts vary from what the Grand Jury indicted on, that is called...you guessed it...variance!)
Another purpose of the indictment as addressed in Iannone is the "proper means of indicating just what crime or crimes defendant has been tried for, in order to avoid subsequent attempts to retry him for the same crime or crimes (cite omitted)." (Think: double jeopardy)
The Court noted that under common law (before the Code of Criminal Procedure which preceded the Criminal Procedure Law) "the indictment was an arcane and intricate work of art which all too often served to mystify rather than to inform defendants."
Then along came the Code of Criminal Procedure in 1881. The indictment requirements were simplified - the Code only required a description of the section of the law a defendant was alleged to have violated. Then along came the CPL which replaced the Code. One reason for the change was that the indictment under the Code "often told the accused little about the nature of the crime he was accused of committing."
Under the Code an indictment did not provide much information to a defendant, but the Court of Appeals found that the defects in the simplified indictment were alleviated by the fact a defendant could demand a bill of particulars, which was a right under common law but not codified.
The CPL codified the Bill of Particulars rules (CPL 200.95). So an indictment may still be a fairly simple description of the law the defendant is alleged to have violated and the conduct which constituted the violation, but the right to a bill of particulars is considered the antidote to a vague indictment.
Here's the money quote: "Any effort to leave a defendant in ignorance of the substance of the accusation until the time of trial must be firmly rebuffed. This is especially so where the indictment itself provides a paucity of information. In such cases, the court must be vigilant in safeguarding the defendant's rights to a bill of particulars and to effective discovery."
PRACTICE TIPS
The BOP statute, CPL 200.95, sets forth a definition of the bill of particulars and procedures relating to making a request and getting a court to enforce it. Pursuant to CPL 200.95(1)(a), "(a) 'Bill of particulars' is a written statement by the prosecutor specifying....items of factual information which are not recited in the indictment and which pertain to the offense charged and including the substance of each defendant's conduct encompassed by the charge which the people intend to prove at trial on there direct case, and whether the people intend to prove that the defendant acted as principal or accomplice or both...However, the prosecutor shall not be required to include in the bill of particulars matters of evidence relating to how the people intend to prove the elements of the offense charged or how the people intend to prove any item of factual information included in the bill of particulars."
Think of the definition as a floor, not a ceiling. In other words, consider whether your indictment fails to sufficiently specify conduct, a crime, or leaves open the possibility that more than one crime is encompassed by a count of the indictment (duplicity).
When a prosecutor responds to an argument that we are not entitled to a bill or specific responses in the bill because we received discovery, they are a little right and more wrong. Iannone notes that the discovery statute helps a defendant to have more notice than in the bad old days. But discovery does not tell us what the grand jury indicted on. A bill of particulars is necessary for that. And sometimes a Bill can't fix a broken indictment (or local court accusatory instrument). If the indictment cannot be cured by the Bill, you should move to dismiss the indictment.
So the bill of particulars, instead of being a waste of several good pieces of paper, can be a document that provides greater detail and notice about the charges a defendant faces and the conduct s/he is alleged to have engaged in. But it will only do that if we ask it to.
Bills of particulars are especially important in sex offenses. If there is a large range of time in which the offenses are alleged to have occurred, we should be requesting greater detail in the request for the bill. But bills are important in many other cases too - assaults and homicides. Consider asking about causation and injuries. And which offense occurred at which time in relation to others. Bills can be extremely important in all sorts of cases, and the more creative you are, the more likely you will be to succeed in either having charges dismissed based on insufficient notice contained in your accusatories and bills, or getting more detail to prepare for trial.
In a recent case the Judge ordered that the DA provide a response to the Bill of Particulars. When she did, she alleged acts that were not heard by the Grand Jury. The indictment was defective and not cured by the Bill, so the indictment was dismissed. (Okay, so the DA re-indicted... but still.)
A request for a Bill of Particulars must be made within 30 days of arraignment (CPL 200.95(3). If you fail to serve your request in a timely manner, you may waive the right to complain later that the indictment was defective: See, People v. Duell, 266 A.D.2d 649.
A prosecutor has to respond within fifteen days of service. If the prosecutor fails to respond, you may move in your motion to compel a response.
Although misdemeanor accusatories are not based on grand jury proceedings (usually), you are entitled to a Bill of Particulars in those cases too. And failure to provide sufficient notice of conduct in the misdemeanor accusatory and Bill can result in dismissal of a misdemeanor charge. See, People v. Sedlock, 8 N.Y.3d 535.
Prepared by Jill Paperno, Second Assistant Monroe County Public Defender
In People v. Iannone, 45 N.Y. 2d 589 (1978) the Court of Appeals reviewed the history of the use and purpose of indictments. The right to be prosecuted by indictment is guaranteed by section 6 of article 1 of the NY State Constitution. No particular form is constitutionally mandated. The Court stated in Iannone, "The requirement of indictment by Grand Jury is intended to prevent the people of this State from potentially oppressive excesses by the agents of the government in the exercise of the prosecutorial authority vested in the state (cite omitted)."
The Court noted that an indictment has traditionally served several purposes. "First and foremost, an indictment has been considered as the necessary method of providing the defendant with fair notice of the accusations made against him, so that he will be able to prepare a defense. (cites omitted). This function of the indictment is founded not upon the right to indictment by a Grand Jury, but rather on the notice requirement of section 6 of article I of our State Constitution and presumably that of the Sixth Amendment to the Federal Constitution as well. Achievement of this purpose historically involved both a legal and a factual statement: normally the indictment has been required to both charge all the legally material elements of the crime of which defendant is accused, and state that defendant in fact committed the acts which comprise those elements."
The Court continued by recognizing that another traditional function of the indictment has been to provide some means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted by the Grand Jury, rather than some alternative seized upon by the prosecution in light of subsequently discovered evidence. (When the acts vary from what the Grand Jury indicted on, that is called...you guessed it...variance!)
Another purpose of the indictment as addressed in Iannone is the "proper means of indicating just what crime or crimes defendant has been tried for, in order to avoid subsequent attempts to retry him for the same crime or crimes (cite omitted)." (Think: double jeopardy)
The Court noted that under common law (before the Code of Criminal Procedure which preceded the Criminal Procedure Law) "the indictment was an arcane and intricate work of art which all too often served to mystify rather than to inform defendants."
Then along came the Code of Criminal Procedure in 1881. The indictment requirements were simplified - the Code only required a description of the section of the law a defendant was alleged to have violated. Then along came the CPL which replaced the Code. One reason for the change was that the indictment under the Code "often told the accused little about the nature of the crime he was accused of committing."
Under the Code an indictment did not provide much information to a defendant, but the Court of Appeals found that the defects in the simplified indictment were alleviated by the fact a defendant could demand a bill of particulars, which was a right under common law but not codified.
The CPL codified the Bill of Particulars rules (CPL 200.95). So an indictment may still be a fairly simple description of the law the defendant is alleged to have violated and the conduct which constituted the violation, but the right to a bill of particulars is considered the antidote to a vague indictment.
Here's the money quote: "Any effort to leave a defendant in ignorance of the substance of the accusation until the time of trial must be firmly rebuffed. This is especially so where the indictment itself provides a paucity of information. In such cases, the court must be vigilant in safeguarding the defendant's rights to a bill of particulars and to effective discovery."
PRACTICE TIPS
The BOP statute, CPL 200.95, sets forth a definition of the bill of particulars and procedures relating to making a request and getting a court to enforce it. Pursuant to CPL 200.95(1)(a), "(a) 'Bill of particulars' is a written statement by the prosecutor specifying....items of factual information which are not recited in the indictment and which pertain to the offense charged and including the substance of each defendant's conduct encompassed by the charge which the people intend to prove at trial on there direct case, and whether the people intend to prove that the defendant acted as principal or accomplice or both...However, the prosecutor shall not be required to include in the bill of particulars matters of evidence relating to how the people intend to prove the elements of the offense charged or how the people intend to prove any item of factual information included in the bill of particulars."
Think of the definition as a floor, not a ceiling. In other words, consider whether your indictment fails to sufficiently specify conduct, a crime, or leaves open the possibility that more than one crime is encompassed by a count of the indictment (duplicity).
When a prosecutor responds to an argument that we are not entitled to a bill or specific responses in the bill because we received discovery, they are a little right and more wrong. Iannone notes that the discovery statute helps a defendant to have more notice than in the bad old days. But discovery does not tell us what the grand jury indicted on. A bill of particulars is necessary for that. And sometimes a Bill can't fix a broken indictment (or local court accusatory instrument). If the indictment cannot be cured by the Bill, you should move to dismiss the indictment.
So the bill of particulars, instead of being a waste of several good pieces of paper, can be a document that provides greater detail and notice about the charges a defendant faces and the conduct s/he is alleged to have engaged in. But it will only do that if we ask it to.
Bills of particulars are especially important in sex offenses. If there is a large range of time in which the offenses are alleged to have occurred, we should be requesting greater detail in the request for the bill. But bills are important in many other cases too - assaults and homicides. Consider asking about causation and injuries. And which offense occurred at which time in relation to others. Bills can be extremely important in all sorts of cases, and the more creative you are, the more likely you will be to succeed in either having charges dismissed based on insufficient notice contained in your accusatories and bills, or getting more detail to prepare for trial.
In a recent case the Judge ordered that the DA provide a response to the Bill of Particulars. When she did, she alleged acts that were not heard by the Grand Jury. The indictment was defective and not cured by the Bill, so the indictment was dismissed. (Okay, so the DA re-indicted... but still.)
A request for a Bill of Particulars must be made within 30 days of arraignment (CPL 200.95(3). If you fail to serve your request in a timely manner, you may waive the right to complain later that the indictment was defective: See, People v. Duell, 266 A.D.2d 649.
A prosecutor has to respond within fifteen days of service. If the prosecutor fails to respond, you may move in your motion to compel a response.
Although misdemeanor accusatories are not based on grand jury proceedings (usually), you are entitled to a Bill of Particulars in those cases too. And failure to provide sufficient notice of conduct in the misdemeanor accusatory and Bill can result in dismissal of a misdemeanor charge. See, People v. Sedlock, 8 N.Y.3d 535.
Prepared by Jill Paperno, Second Assistant Monroe County Public Defender
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