In People v Colon (__NY3d__, 2009 NY Slip Op 08477 [11/19/09])the Court of Appeals granted co-defendants' motion to vacate their murder convictions where only two witnesses had linked the defendants to the crime and the trial prosecutor had permitted one of the witnesses to falsely state the extent of the benefits he received for testifying against the defendants. The Court held that

In their role as public officers, prosecutors "must deal fairly with the accused and be candid with the courts" (People v Steadman, 82 NY2d 1, 7 [1993]). This duty requires prosecutors not only to disclose exculpatory or impeaching evidence but also to correct the knowingly false or mistaken material testimony of a prosecution witness. Where a prosecutor elicits or fails to correct such inaccurate testimony, reversal and a new trial are necessary unless there is no "reasonable possibility" that the error contributed to the conviction (citations omitted).

Yet, the trial prosecutor had personally been involved in conveying a favorable plea offer which had not been disclosed to the defense. The prosecutor failed to correct the witness's misleading testimony and, in addition, compounded these errors by repeating and emphasizing the misinformation during summation. In reversing, the Court held that

Unlike the Appellate Division, we believe that there is a reasonable possibility that these errors affected the jury's verdict (see People v Vilardi, 76 NY2d 67, 77 [1990]). At trial, only two witnesses connected defendants to the crime... [One] had previously committed perjury and was a self-described drug kingpin and murderer. His veracity was further called into question given that he was facing life imprisonment on both state and federal charges when he agreed to testify against defendants. [The other witness's] testimony was therefore crucial. But the false testimony elicited by the prosecutor regarding the benefits extended may well have impacted the jury's perception of [that witness's] credibility. By their very nature, benefits conferred on a witness by a prosecutor provide a basis for the jury to question the veracity of a witness on the theory that the witness may be biased in favor of the People. For this reason, it is important that witnesses provide truthful testimony when questioned about the receipt of such benefits, and the People must be vigilant to avoid misleading the court or jury. Rather than correct the inaccurate testimony, the prosecutor here exacerbated the problem during her closing comments.

Thus, the Court of Appeals has again sent a message to both prosecutors and lower courts. The Court's holding in Vilardi means what it says: Harmless error anaylsis will not save convictions, even convictions for serious crimes, where there is a reasonable possibility that Brady violations (Brady v Maryland, 373 U.S. 83 [1963]) affected the jury's verdict. (See also its decision last year in People v Hunter, 11 NY3d 1 [2008], discussed here).

In People v Colon (__NY3d__, 2009 NY Slip Op 08477 [11/19/09])the Court of Appeals granted co-defendants' motion to vacate their murder convictions where only two witnesses had linked the defendants to the crime and the trial prosecutor had permitted one of the witnesses to falsely state the extent of the benefits he received for testifying against the defendants. The Court held that

In their role as public officers, prosecutors "must deal fairly with the accused and be candid with the courts" (People v Steadman, 82 NY2d 1, 7 [1993]). This duty requires prosecutors not only to disclose exculpatory or impeaching evidence but also to correct the knowingly false or mistaken material testimony of a prosecution witness. Where a prosecutor elicits or fails to correct such inaccurate testimony, reversal and a new trial are necessary unless there is no "reasonable possibility" that the error contributed to the conviction (citations omitted).

Yet, the trial prosecutor had personally been involved in conveying a favorable plea offer which had not been disclosed to the defense. The prosecutor failed to correct the witness's misleading testimony and, in addition, compounded these errors by repeating and emphasizing the misinformation during summation. In reversing, the Court held that

Unlike the Appellate Division, we believe that there is a reasonable possibility that these errors affected the jury's verdict (see People v Vilardi, 76 NY2d 67, 77 [1990]). At trial, only two witnesses connected defendants to the crime... [One] had previously committed perjury and was a self-described drug kingpin and murderer. His veracity was further called into question given that he was facing life imprisonment on both state and federal charges when he agreed to testify against defendants. [The other witness's] testimony was therefore crucial. But the false testimony elicited by the prosecutor regarding the benefits extended may well have impacted the jury's perception of [that witness's] credibility. By their very nature, benefits conferred on a witness by a prosecutor provide a basis for the jury to question the veracity of a witness on the theory that the witness may be biased in favor of the People. For this reason, it is important that witnesses provide truthful testimony when questioned about the receipt of such benefits, and the People must be vigilant to avoid misleading the court or jury. Rather than correct the inaccurate testimony, the prosecutor here exacerbated the problem during her closing comments.

Thus, the Court of Appeals has again sent a message to both prosecutors and lower courts. The Court's holding in Vilardi means what it says: Harmless error anaylsis will not save convictions, even convictions for serious crimes, where there is a reasonable possibility that Brady violations (Brady v Maryland, 373 U.S. 83 [1963]) affected the jury's verdict. (See also its decision last year in People v Hunter, 11 NY3d 1 [2008], discussed here).

In People v Lerow (_ AD3d __, 2009 NY Slip Op 08648 [4th Dept 12/20/09]) the Fourth Department decided an apparent issue of first impression for a New York appellate court: Can a New York police officer lawfully to direct the withdrawal of blood from a suspect who is physically located outside of the state, where the supsect had been involved in a vehicular accident in New York State and transferred to another state (in this case Pennsylvania. For an excellent summary and analysis of the Court's holding that, under the circumstance the officer had the authority to order the blood draw even though he was out-of-state, see this entry in the blog, New York Criminal Law and Procedure.

In People v Lerow (_ AD3d __, 2009 NY Slip Op 08648 [4th Dept 12/20/09]) the Fourth Department decided an apparent issue of first impression for a New York appellate court: Can a New York police officer lawfully to direct the withdrawal of blood from a suspect who is physically located outside of the state, where the supsect had been involved in a vehicular accident in New York State and transferred to another state (in this case Pennsylvania. For an excellent summary and analysis of the Court's holding that, under the circumstance the officer had the authority to order the blood draw even though he was out-of-state, see this entry in the blog, New York Criminal Law and Procedure.

A person's consent to do one thing is not a blanket consent to something else. In People v Gayden (__AD3d__, 2009 NY Slip Op 08332 [4th Depth 11/13/09]), the Fourth Department reminded both police and prosecutors that a person's consent to go one place with the police is not consent to also go to the police station with them. After the defendant agreed to show the police the location where he was allegedly robbed, and accompanied the officers to that location, the officers then transported defendant to the police station, whereupon they informed him that they did not believe his version of the events. Defendant them waived his Miranda rights, and in response to police questioning, gave inculpatory statements that he moved to suppress.

The Fourth Department held that

Even according great weight to the determination of the suppression court, "with its peculiar advantages of having seen and heard the witnesses" (People v Prochilo, 41 NY2d 759, 761), we conclude that the evidence at the suppression hearing does not support the court's determination that defendant voluntarily accompanied the investigating officers to the police station and thus that he was not in custody when he made the statements (cf. People v Yukl, 25 NY2d 585, 592, cert denied 400 US 851). "In determining the scope of consent, a suppression court must look to the exchange between the parties——both the request and the response——and any attendant circumstances" (People v Gomez, 5 NY3d 416, 420). Although it is undisputed that defendant agreed to accompany the investigating officers to the intersection where he allegedly had been shot, the People failed to present any evidence at the suppression hearing on the issue whether defendant, who had no other means of transportation to travel back to his home, in fact consented to accompany the officers to the police station (see People v Rosa, 30 AD3d 905, 908, lv denied 7 NY3d 851). Therefore, viewing the circumstances in the light of " what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant's position,' " we agree with defendant that his detention was in fact the equivalent of an arrest, requiring probable cause (citations omitted).

A person's consent to do one thing is not a blanket consent to something else. In People v Gayden (__AD3d__, 2009 NY Slip Op 08332 [4th Depth 11/13/09]), the Fourth Department reminded both police and prosecutors that a person's consent to go one place with the police is not consent to also go to the police station with them. After the defendant agreed to show the police the location where he was allegedly robbed, and accompanied the officers to that location, the officers then transported defendant to the police station, whereupon they informed him that they did not believe his version of the events. Defendant them waived his Miranda rights, and in response to police questioning, gave inculpatory statements that he moved to suppress.

The Fourth Department held that

Even according great weight to the determination of the suppression court, "with its peculiar advantages of having seen and heard the witnesses" (People v Prochilo, 41 NY2d 759, 761), we conclude that the evidence at the suppression hearing does not support the court's determination that defendant voluntarily accompanied the investigating officers to the police station and thus that he was not in custody when he made the statements (cf. People v Yukl, 25 NY2d 585, 592, cert denied 400 US 851). "In determining the scope of consent, a suppression court must look to the exchange between the parties——both the request and the response——and any attendant circumstances" (People v Gomez, 5 NY3d 416, 420). Although it is undisputed that defendant agreed to accompany the investigating officers to the intersection where he allegedly had been shot, the People failed to present any evidence at the suppression hearing on the issue whether defendant, who had no other means of transportation to travel back to his home, in fact consented to accompany the officers to the police station (see People v Rosa, 30 AD3d 905, 908, lv denied 7 NY3d 851). Therefore, viewing the circumstances in the light of " what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant's position,' " we agree with defendant that his detention was in fact the equivalent of an arrest, requiring probable cause (citations omitted).

In People v Manges ( __ AD3d__, 2009 NY Slip Op 08258 [4th Dept 11/13/09]), the Court reversed and dismissed convictions for Criminal Possession of a Forged Instrument and Grand Larceny which were predicated on a computer printout of electronic data that was displayed on a computer screen when defendant presented a check, the allegedly forged instrument, to a bank teller, that should not have been admitted into evidence.

The People failed to establish that the printout falls within the business records exception to the hearsay rule (see CPLR 4518 [a]), which applies here (see CPL 60.10). The People presented no evidence that the data displayed on the computer screen, resulting in the printout, was entered in the regular course of business at the time of the transaction (see CPLR 4518 [a]). Indeed, the bank teller who identified the computer screen printout testified that "anyone [at the bank] can sit down at a computer and enter information." Because the computer screen printout was the only evidence establishing the identity of the purported true account owner upon which the check was drawn, we conclude that the evidence is legally insufficient to support the conviction (see generally People v Bleakley, 69 NY2d 490, 495).