Monday, January 2, 2012
A pre-requisite of a valid search incident to arrest, is an arrest. "If there is no arrest, however, there can be no search incident thereto (see People v Evans, 43 NY2d 160, 165-166; People v Erwin, 42 NY2d 1064, 1065)." People v Kalikow (2011 NY Slip Op 09452[4th Dept 12/23/11]). In, Kalikow, the Fourth Department held that where a police officer merely issued an appearance ticket to defendant for violating a municipal open container ordinance and had no intention of performing a custodial arrest, but defendant nevertheless was searched, the search cannot be justified as a search incident to a lawful arrest.
A pre-requisite of a valid search incident to arrest, is an arrest. "If there is no arrest, however, there can be no search incident thereto (see People v Evans, 43 NY2d 160, 165-166; People v Erwin, 42 NY2d 1064, 1065)." People v Kalikow (2011 NY Slip Op 09452[4th Dept 12/23/11]). In, Kalikow, the Fourth Department held that where a police officer merely issued an appearance ticket to defendant for violating a municipal open container ordinance and had no intention of performing a custodial arrest, but defendant nevertheless was searched, the search cannot be justified as a search incident to a lawful arrest.
In recent years, the application of the right to confrontation in the context of laboratory or DNA test evidence has been the subject of much litigation at the United States Supreme Court
In Melendez-Diaz v Massachusetts (129 S.Ct. 2527 [2009]), the Supreme Court held that it violate the right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of a person who performed the test subject to confrontation. Thus, the admission at trial of three sworn “certificates of analysis” or affidavits showing the results of the forensic analysis performed on samples of the seized white powder was reversible error where the analyst did not testify. The Court rejected the ideas that the right to confrontation only applied when the evidence accused someone of a crime or didn’t apply to scientific tests, noting that crime labs have provided unreliable evidence in the past, and said that confrontation would help find the truth.
Then, in Bullcoming v New Mexico (564 U.S. __,131 S.Ct. 2705 [2011]), the Court held that under the confrontation clause “the accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”
However, in People v Pealer (2011 NY Slip Op 08397 [4th Dept 11/18/11] the Appellate Division Fourth Department held that these holdings do not apply to the calibration and simulator solution certificates used in verifying the accuracy of the breathalyzer test, on the ground that these documents were testimonial subject to the right to confrontation.
A month later, in People v Morrison (2011 NY Slip Op 09450 [12/23/11]) the Fourth Department had a second opportunity to consider the application of Bullcoming. The Court held
The Court then determined that this error was harmless, since the defendant had confessed.
Whether the holding of People v Brown (13 NY3d 332) was correct will likely be decided by the Supreme Court in Williams v. Illinois, 131 S Ct ___ (cert. granted June 28, 2011), which has been argued and is pending decision.
In Melendez-Diaz v Massachusetts (129 S.Ct. 2527 [2009]), the Supreme Court held that it violate the right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of a person who performed the test subject to confrontation. Thus, the admission at trial of three sworn “certificates of analysis” or affidavits showing the results of the forensic analysis performed on samples of the seized white powder was reversible error where the analyst did not testify. The Court rejected the ideas that the right to confrontation only applied when the evidence accused someone of a crime or didn’t apply to scientific tests, noting that crime labs have provided unreliable evidence in the past, and said that confrontation would help find the truth.
Then, in Bullcoming v New Mexico (564 U.S. __,131 S.Ct. 2705 [2011]), the Court held that under the confrontation clause “the accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”
However, in People v Pealer (2011 NY Slip Op 08397 [4th Dept 11/18/11] the Appellate Division Fourth Department held that these holdings do not apply to the calibration and simulator solution certificates used in verifying the accuracy of the breathalyzer test, on the ground that these documents were testimonial subject to the right to confrontation.
A month later, in People v Morrison (2011 NY Slip Op 09450 [12/23/11]) the Fourth Department had a second opportunity to consider the application of Bullcoming. The Court held
Defendant further contends that the admission in evidence of a certified DNA report prepared by an analyst who did not testify at trial and the testimony of an analyst who testified at trial regarding that report violated his rights under the Confrontation Clause of the US Constitution Sixth Amendment (see generally Crawford v Washington, 541 US 36, 50-54). We agree. "The Sixth Amendment to the United States Constitution guarantees a defendant the right to be confronted with the witnesses against him [or her]' " (People v Brown, 13 NY3d 332, 338). "This provision bars admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify, and the defendant . . . had a prior opportunity for cross-examination' " (id., quoting Crawford, 541 US at 53-54). We must therefore determine whether the statements were "testimonial," because only testimonial statements are subject to the Confrontation Clause (see Davis v Washington, 547 US 813, 821).
In Brown (13 NY3d at 336), the report in question contained machine-generated raw data, graphs and charts of a male specimen's DNA characteristics that were isolated from a rape kit. The Court of Appeals held that the report was not testimonial inasmuch as there were "no conclusions, interpretations, or comparisons apparent in the report" (id. at 340; see People v Thompson, 70 AD3d 866, 866-867, lv denied 15 NY3d 757). The forensic biologist who conducted the actual analysis that linked the defendant's DNA profile to the profile in the victim's rape kit was in fact called by the People as a witness in Brown (id. at 340). That was not the case here, where the analyst who performed the tests and concluded that the DNA mixture profile from the vaginal swab sample was consistent with DNA from the victim mixed with DNA from defendant was never called to testify. Contrary to the People's contention, the analyst who was called to testify, i.e., the supervisor of the other analyst, did not perform her own independent review and analysis of the DNA data. Rather, her testimony makes clear that she had nothing to do with the analysis performed by the uncalled witness, and that her only involvement was simply reading the report after it was completed to ensure that the uncalled witness followed proper procedure. The People could not substitute her testimony for that of the actual analyst who performed the tests in order to avoid a violation of the Confrontation Clause (see Bullcoming v New Mexico, ___ US ___, ___, 131 S Ct 2705, 2709-2710).
The Court then determined that this error was harmless, since the defendant had confessed.
Whether the holding of People v Brown (13 NY3d 332) was correct will likely be decided by the Supreme Court in Williams v. Illinois, 131 S Ct ___ (cert. granted June 28, 2011), which has been argued and is pending decision.
In recent years, the application of the right to confrontation in the context of laboratory or DNA test evidence has been the subject of much litigation at the United States Supreme Court
In Melendez-Diaz v Massachusetts (129 S.Ct. 2527 [2009]), the Supreme Court held that it violate the right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of a person who performed the test subject to confrontation. Thus, the admission at trial of three sworn “certificates of analysis” or affidavits showing the results of the forensic analysis performed on samples of the seized white powder was reversible error where the analyst did not testify. The Court rejected the ideas that the right to confrontation only applied when the evidence accused someone of a crime or didn’t apply to scientific tests, noting that crime labs have provided unreliable evidence in the past, and said that confrontation would help find the truth.
Then, in Bullcoming v New Mexico (564 U.S. __,131 S.Ct. 2705 [2011]), the Court held that under the confrontation clause “the accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”
However, in People v Pealer (2011 NY Slip Op 08397 [4th Dept 11/18/11] the Appellate Division Fourth Department held that these holdings do not apply to the calibration and simulator solution certificates used in verifying the accuracy of the breathalyzer test, on the ground that these documents were testimonial subject to the right to confrontation.
A month later, in People v Morrison (2011 NY Slip Op 09450 [12/23/11]) the Fourth Department had a second opportunity to consider the application of Bullcoming. The Court held
The Court then determined that this error was harmless, since the defendant had confessed.
Whether the holding of People v Brown (13 NY3d 332) was correct will likely be decided by the Supreme Court in Williams v. Illinois, 131 S Ct ___ (cert. granted June 28, 2011), which has been argued and is pending decision.
In Melendez-Diaz v Massachusetts (129 S.Ct. 2527 [2009]), the Supreme Court held that it violate the right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of a person who performed the test subject to confrontation. Thus, the admission at trial of three sworn “certificates of analysis” or affidavits showing the results of the forensic analysis performed on samples of the seized white powder was reversible error where the analyst did not testify. The Court rejected the ideas that the right to confrontation only applied when the evidence accused someone of a crime or didn’t apply to scientific tests, noting that crime labs have provided unreliable evidence in the past, and said that confrontation would help find the truth.
Then, in Bullcoming v New Mexico (564 U.S. __,131 S.Ct. 2705 [2011]), the Court held that under the confrontation clause “the accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”
However, in People v Pealer (2011 NY Slip Op 08397 [4th Dept 11/18/11] the Appellate Division Fourth Department held that these holdings do not apply to the calibration and simulator solution certificates used in verifying the accuracy of the breathalyzer test, on the ground that these documents were testimonial subject to the right to confrontation.
A month later, in People v Morrison (2011 NY Slip Op 09450 [12/23/11]) the Fourth Department had a second opportunity to consider the application of Bullcoming. The Court held
Defendant further contends that the admission in evidence of a certified DNA report prepared by an analyst who did not testify at trial and the testimony of an analyst who testified at trial regarding that report violated his rights under the Confrontation Clause of the US Constitution Sixth Amendment (see generally Crawford v Washington, 541 US 36, 50-54). We agree. "The Sixth Amendment to the United States Constitution guarantees a defendant the right to be confronted with the witnesses against him [or her]' " (People v Brown, 13 NY3d 332, 338). "This provision bars admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify, and the defendant . . . had a prior opportunity for cross-examination' " (id., quoting Crawford, 541 US at 53-54). We must therefore determine whether the statements were "testimonial," because only testimonial statements are subject to the Confrontation Clause (see Davis v Washington, 547 US 813, 821).
In Brown (13 NY3d at 336), the report in question contained machine-generated raw data, graphs and charts of a male specimen's DNA characteristics that were isolated from a rape kit. The Court of Appeals held that the report was not testimonial inasmuch as there were "no conclusions, interpretations, or comparisons apparent in the report" (id. at 340; see People v Thompson, 70 AD3d 866, 866-867, lv denied 15 NY3d 757). The forensic biologist who conducted the actual analysis that linked the defendant's DNA profile to the profile in the victim's rape kit was in fact called by the People as a witness in Brown (id. at 340). That was not the case here, where the analyst who performed the tests and concluded that the DNA mixture profile from the vaginal swab sample was consistent with DNA from the victim mixed with DNA from defendant was never called to testify. Contrary to the People's contention, the analyst who was called to testify, i.e., the supervisor of the other analyst, did not perform her own independent review and analysis of the DNA data. Rather, her testimony makes clear that she had nothing to do with the analysis performed by the uncalled witness, and that her only involvement was simply reading the report after it was completed to ensure that the uncalled witness followed proper procedure. The People could not substitute her testimony for that of the actual analyst who performed the tests in order to avoid a violation of the Confrontation Clause (see Bullcoming v New Mexico, ___ US ___, ___, 131 S Ct 2705, 2709-2710).
The Court then determined that this error was harmless, since the defendant had confessed.
Whether the holding of People v Brown (13 NY3d 332) was correct will likely be decided by the Supreme Court in Williams v. Illinois, 131 S Ct ___ (cert. granted June 28, 2011), which has been argued and is pending decision.
The Court of Appeals has repeatedly held that a prospective juror with actual bias, such as an opinion that the defendant is guilty, is qualified to serve on a jury as long as gives an unequivocal assurance she can be fair and impartial (People v Nicholas, 98 NY2d 749, 751 [2002]; People v Arnold, 96 NY2d 358, 362 [2001]; People v Johnson, 94 NY2d 600, 614 [2000]).
The rule is different with respect to a prospective juror who is said to have an “implied bias” based on a preexisting relationship with a potential witness that “is likely to preclude her from rendering an impartial verdict. ” Unlike actual bias, implied bias, requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect her ability to be fair and impartial (see e.g. People v Branch, 46 NY2d 645, 650 [1979]; People v Rentz, 67 NY2d 829, 831 [1986]). And such bias, whether acknowledged by the declarant or not, cannot be cured with an expurgatory oath.
In People v Furey, __NY3d__, 2011 NY Slip Op 09000 (12/15/11) , the Court of Appeals again applied this rule and reversed a conviction where a challenge for cause was denied with respect to a prospective juror with implied bias. In Furey, after noting that not all relationships qualify for this implied bias rule and that the “frequency of contact and nature of the parties' relationship are to be considered in determining whether disqualification is necessary” the Court held that it was an abuse of discretion to deny a challenge for cause where the prospective juror’s husband was a police captain who has assigned the detective who investigated the case and
The rule is different with respect to a prospective juror who is said to have an “implied bias” based on a preexisting relationship with a potential witness that “is likely to preclude her from rendering an impartial verdict. ” Unlike actual bias, implied bias, requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect her ability to be fair and impartial (see e.g. People v Branch, 46 NY2d 645, 650 [1979]; People v Rentz, 67 NY2d 829, 831 [1986]). And such bias, whether acknowledged by the declarant or not, cannot be cured with an expurgatory oath.
In People v Furey, __NY3d__, 2011 NY Slip Op 09000 (12/15/11) , the Court of Appeals again applied this rule and reversed a conviction where a challenge for cause was denied with respect to a prospective juror with implied bias. In Furey, after noting that not all relationships qualify for this implied bias rule and that the “frequency of contact and nature of the parties' relationship are to be considered in determining whether disqualification is necessary” the Court held that it was an abuse of discretion to deny a challenge for cause where the prospective juror’s husband was a police captain who has assigned the detective who investigated the case and
she knew eight of the witnesses (seven police officers and an assistant district attorney) who were to testify at trial — more than half of the People's potential witnesses — and had frequent professional and social relationships with at least two of the police officers. Although [the prospective juror] offered unequivocal assurances of impartiality, those declarations were ineffective in a case like this because there was a considerable risk that she could unwittingly give undue credence to the witnesses she knew and her service would give rise to the perception that defendant did not receive a fair trial.
The Court of Appeals has repeatedly held that a prospective juror with actual bias, such as an opinion that the defendant is guilty, is qualified to serve on a jury as long as gives an unequivocal assurance she can be fair and impartial (People v Nicholas, 98 NY2d 749, 751 [2002]; People v Arnold, 96 NY2d 358, 362 [2001]; People v Johnson, 94 NY2d 600, 614 [2000]).
The rule is different with respect to a prospective juror who is said to have an “implied bias” based on a preexisting relationship with a potential witness that “is likely to preclude her from rendering an impartial verdict. ” Unlike actual bias, implied bias, requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect her ability to be fair and impartial (see e.g. People v Branch, 46 NY2d 645, 650 [1979]; People v Rentz, 67 NY2d 829, 831 [1986]). And such bias, whether acknowledged by the declarant or not, cannot be cured with an expurgatory oath.
In People v Furey, __NY3d__, 2011 NY Slip Op 09000 (12/15/11) , the Court of Appeals again applied this rule and reversed a conviction where a challenge for cause was denied with respect to a prospective juror with implied bias. In Furey, after noting that not all relationships qualify for this implied bias rule and that the “frequency of contact and nature of the parties' relationship are to be considered in determining whether disqualification is necessary” the Court held that it was an abuse of discretion to deny a challenge for cause where the prospective juror’s husband was a police captain who has assigned the detective who investigated the case and
The rule is different with respect to a prospective juror who is said to have an “implied bias” based on a preexisting relationship with a potential witness that “is likely to preclude her from rendering an impartial verdict. ” Unlike actual bias, implied bias, requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect her ability to be fair and impartial (see e.g. People v Branch, 46 NY2d 645, 650 [1979]; People v Rentz, 67 NY2d 829, 831 [1986]). And such bias, whether acknowledged by the declarant or not, cannot be cured with an expurgatory oath.
In People v Furey, __NY3d__, 2011 NY Slip Op 09000 (12/15/11) , the Court of Appeals again applied this rule and reversed a conviction where a challenge for cause was denied with respect to a prospective juror with implied bias. In Furey, after noting that not all relationships qualify for this implied bias rule and that the “frequency of contact and nature of the parties' relationship are to be considered in determining whether disqualification is necessary” the Court held that it was an abuse of discretion to deny a challenge for cause where the prospective juror’s husband was a police captain who has assigned the detective who investigated the case and
she knew eight of the witnesses (seven police officers and an assistant district attorney) who were to testify at trial — more than half of the People's potential witnesses — and had frequent professional and social relationships with at least two of the police officers. Although [the prospective juror] offered unequivocal assurances of impartiality, those declarations were ineffective in a case like this because there was a considerable risk that she could unwittingly give undue credence to the witnesses she knew and her service would give rise to the perception that defendant did not receive a fair trial.
Tuesday, December 13, 2011
We don't see misuse of NYCTA MetroCard charges very often, but the Court of Appeals decided such a case today in People v Hightower (#223 decided December 23, 2011). What makes the case applicable to us is that the defendant pled guilty to Petit Larceny, and a unanimous Court of Appeals dismissed the charges because the accusatory was jurisdictionally defective.
Hightower was charged with three charges, PL and two relating to the specific activity (swiping an unlimited MetroCard and accepting money for allowing another person to ride the subway). As I said, he pled to PL, so the fact that the other charges were perfectly well established by the accusatory was irrelevant. The prosecution claimed that Hightower had stolen the (unknown amount of) money which he obtained for use of the card. The Court of Appeals ruled that this money was never owned by the NYC Transit Authority. What is important for our purposes is not the discussion of when an agency becomes owner of the currency, but what failures in a misdemeanor accusatory will render it jurisdictionally defective.
"In People v Dreyden (15 NY3d 100, 103 [2010]), we recognized two broad categories of defects to be used as guideposts in determining whether an accusatory instrument is jurisdictionally flawed: "[t]he distinction between jurisdictional and nonjurisdictional defects 'is between defects implicating the integrity of the process . . . and less fundamental flaws, such as evidentiary or technical matters'" (quoting People v Hansen 95 NY2d 227, 231 [2000]) and we find that the violation of the reasonable cause requirement (as set forth in CPL 100.40 [4][b]) here falls into the first category.
In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged. Although the information in this case described the events with enough clarity to provide reasonable cause that defendant was engaged in the unlawful sale of NYCTA services and providing unlawful access to NYCTA services, we hold that it was jurisdictionally defective as to the crime of which defendant was actually convicted -- petit larceny."
100.40(4)(b) provides in turn "(b) The allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument."
Read together, these two provisions strike me as broad enough to be generally applicable to all failures of the accusatory to substantiate the charge against the defendant, except perhaps when the failure can be deemed "technical". My opinion: few things are going to be more technical than the issue of who owns the money a defendant collects for allowing someone to use his MetroCard. So if that's not technical, most of your cases will not be, either.
This is not a new rule of law, but it is a common occurrence, and so worth keeping in mind. This is especially true for two reasons. First, the defendant pled to PL, which normally vitiates any complaints about sufficiency, and the charges were nonetheless dismissed on appeal. That's a strong rule. Second, because the defendant had already served his time, the charges were dismissed outright. That's a pretty good result for reading the accusatory carefully.
Hightower was charged with three charges, PL and two relating to the specific activity (swiping an unlimited MetroCard and accepting money for allowing another person to ride the subway). As I said, he pled to PL, so the fact that the other charges were perfectly well established by the accusatory was irrelevant. The prosecution claimed that Hightower had stolen the (unknown amount of) money which he obtained for use of the card. The Court of Appeals ruled that this money was never owned by the NYC Transit Authority. What is important for our purposes is not the discussion of when an agency becomes owner of the currency, but what failures in a misdemeanor accusatory will render it jurisdictionally defective.
"In People v Dreyden (15 NY3d 100, 103 [2010]), we recognized two broad categories of defects to be used as guideposts in determining whether an accusatory instrument is jurisdictionally flawed: "[t]he distinction between jurisdictional and nonjurisdictional defects 'is between defects implicating the integrity of the process . . . and less fundamental flaws, such as evidentiary or technical matters'" (quoting People v Hansen 95 NY2d 227, 231 [2000]) and we find that the violation of the reasonable cause requirement (as set forth in CPL 100.40 [4][b]) here falls into the first category.
In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged. Although the information in this case described the events with enough clarity to provide reasonable cause that defendant was engaged in the unlawful sale of NYCTA services and providing unlawful access to NYCTA services, we hold that it was jurisdictionally defective as to the crime of which defendant was actually convicted -- petit larceny."
100.40(4)(b) provides in turn "(b) The allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument."
Read together, these two provisions strike me as broad enough to be generally applicable to all failures of the accusatory to substantiate the charge against the defendant, except perhaps when the failure can be deemed "technical". My opinion: few things are going to be more technical than the issue of who owns the money a defendant collects for allowing someone to use his MetroCard. So if that's not technical, most of your cases will not be, either.
This is not a new rule of law, but it is a common occurrence, and so worth keeping in mind. This is especially true for two reasons. First, the defendant pled to PL, which normally vitiates any complaints about sufficiency, and the charges were nonetheless dismissed on appeal. That's a strong rule. Second, because the defendant had already served his time, the charges were dismissed outright. That's a pretty good result for reading the accusatory carefully.
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