CPL 60.10 (a) provides that A party seeking to appeal from a judgment or a sentence must

within thirty days after imposition of the sentence or, as the case may be, within thirty days after service upon such party of a copy of an order not included in a judgment, file with the clerk of the criminal court in which such sentence was imposed or in which such order was entered a written notice of appeal, in duplicate, stating that such party appeals therefrom to a designated appellate court.

Even when there has been a failure to comply with these requirements as to a notice of appeal, it is possible that the defendant can still appeal. Thus, for example, in People v Syville (15 NY3d 391 [2010])the Court of Appeals held that "[w]here an attorney has failed to comply with a timely request for the filing of a notice of appeal and the defendant alleges that the omission could not reasonably have been discovered within the one-year period, the time limit imposed in CPL 460.30 should not categorically bar an appellate court from considering that defendant's application to pursue an untimely appeal." Instead, the Court held that the common-law writ of error coram nobis affords the appropriate avenue for relief for such a violation and such a writ may be sought and obtained, as in Mr. Syville's case, about a decade after the imposition of sentence.

Two recent decisions of the Appellate Division, Fourth Department, show other ways in which appeals may proceed despite errors with respect to the notice of appeal. In People v Dizak (2012 NY Slip Op 01907 [4th Department 3/16/12]), as in Syville, there was an apparent failure to timely serve the notice of appeal. Rather, than file a motion for a writ of error coram nobis, as suggested by the Court of Appeals in Syville, Mr. Dizak perfected his appeal. The Monroe County District Attorney, in its Respondent's brief contended that the appeal had to be dismissed because Dizak failed to serve his notice of appeal in a timely manner. The Appellate Division, refused to dismiss for two reason, holding that

"[T]he People waived any objection to defendant's failure to serve the notice of appeal by responding to his appeal on the merits rather than fhttp://www.blogger.com/img/blank.gifiling a motion to dismiss the appeal at some earlier juncture . . . The People, moreover, have failed to demonstrate any prejudice as a result of defendant's alleged failure to comply with CPL 460.10 (1) (b)" (People v Sayles, 292 AD2d 641, 642 n, lv denied 98 NY2d 681).

Thus, the Court held both that a prosecutor waives the requirement of timely service of a notice of appeal by failing to move to dismiss on that ground and that prejudice must be demonstrated.

In People v Mitchell (2012 NY Slip Op 01897 [Fourth Department 3/16/12]) the notice of appeal recited an incorrect date on which judgment was rendered. The Fourth Department, excused this error holding that

Defendant's notice of appeal recites the correct indictment number, however, and thus we exercise our discretion, in the interest of justice, and treat the notice of appeal as valid (see CPL 460.10 [6]).

Although both Mr. Mitchell and Mr. Dizak were permitted to proceed with their appeals despite defects in the content or service of their notices of appeals, it is risky to count on either waiver by the prosecutor or the exercise of interest of justice jurisdiction by the appellate court. Thus, counsel should first check to insure the accuracy of the information in the notice of appeal and then timely serve the notice, with proof of such service.

CPL 60.10 (a) provides that A party seeking to appeal from a judgment or a sentence must

within thirty days after imposition of the sentence or, as the case may be, within thirty days after service upon such party of a copy of an order not included in a judgment, file with the clerk of the criminal court in which such sentence was imposed or in which such order was entered a written notice of appeal, in duplicate, stating that such party appeals therefrom to a designated appellate court.

Even when there has been a failure to comply with these requirements as to a notice of appeal, it is possible that the defendant can still appeal. Thus, for example, in People v Syville (15 NY3d 391 [2010])the Court of Appeals held that "[w]here an attorney has failed to comply with a timely request for the filing of a notice of appeal and the defendant alleges that the omission could not reasonably have been discovered within the one-year period, the time limit imposed in CPL 460.30 should not categorically bar an appellate court from considering that defendant's application to pursue an untimely appeal." Instead, the Court held that the common-law writ of error coram nobis affords the appropriate avenue for relief for such a violation and such a writ may be sought and obtained, as in Mr. Syville's case, about a decade after the imposition of sentence.

Two recent decisions of the Appellate Division, Fourth Department, show other ways in which appeals may proceed despite errors with respect to the notice of appeal. In People v Dizak (2012 NY Slip Op 01907 [4th Department 3/16/12]), as in Syville, there was an apparent failure to timely serve the notice of appeal. Rather, than file a motion for a writ of error coram nobis, as suggested by the Court of Appeals in Syville, Mr. Dizak perfected his appeal. The Monroe County District Attorney, in its Respondent's brief contended that the appeal had to be dismissed because Dizak failed to serve his notice of appeal in a timely manner. The Appellate Division, refused to dismiss for two reason, holding that

"[T]he People waived any objection to defendant's failure to serve the notice of appeal by responding to his appeal on the merits rather than fhttp://www.blogger.com/img/blank.gifiling a motion to dismiss the appeal at some earlier juncture . . . The People, moreover, have failed to demonstrate any prejudice as a result of defendant's alleged failure to comply with CPL 460.10 (1) (b)" (People v Sayles, 292 AD2d 641, 642 n, lv denied 98 NY2d 681).

Thus, the Court held both that a prosecutor waives the requirement of timely service of a notice of appeal by failing to move to dismiss on that ground and that prejudice must be demonstrated.

In People v Mitchell (2012 NY Slip Op 01897 [Fourth Department 3/16/12]) the notice of appeal recited an incorrect date on which judgment was rendered. The Fourth Department, excused this error holding that

Defendant's notice of appeal recites the correct indictment number, however, and thus we exercise our discretion, in the interest of justice, and treat the notice of appeal as valid (see CPL 460.10 [6]).

Although both Mr. Mitchell and Mr. Dizak were permitted to proceed with their appeals despite defects in the content or service of their notices of appeals, it is risky to count on either waiver by the prosecutor or the exercise of interest of justice jurisdiction by the appellate court. Thus, counsel should first check to insure the accuracy of the information in the notice of appeal and then timely serve the notice, with proof of such service.

In a reminder as to the importance of including key documents in the stipulated record on appeal, the Appellate Division, Fourth Department, in People v Scott (2012 NY Slip Op 01991 [4th Dept 3/16/12]), dismissed a People' appeal which sought to challenge the lower court's dismissal of an indictment pursuant to CPL 30.30, where the record included the lower court's decision, but failed to include the judgment or order dismissing the indictment. As the Court explained,

"[t]he appeal must be dismissed because no judgment or order is included in the record on appeal, and '[n]o appeal lies from a decision' (People v McCarter, 97 AD2d 852)."

In a reminder as to the importance of including key documents in the stipulated record on appeal, the Appellate Division, Fourth Department, in People v Scott (2012 NY Slip Op 01991 [4th Dept 3/16/12]), dismissed a People' appeal which sought to challenge the lower court's dismissal of an indictment pursuant to CPL 30.30, where the record included the lower court's decision, but failed to include the judgment or order dismissing the indictment. As the Court explained,

"[t]he appeal must be dismissed because no judgment or order is included in the record on appeal, and '[n]o appeal lies from a decision' (People v McCarter, 97 AD2d 852)."

Order to Obtain DNA Doesn't Authorize Police To Use Taser to Acquire DNA

Confronted by the police who had an order to obtain his DNA, Ryan Smith reportedly told the police "You are gonna have to Taser me if you want my DNA." Ans so the police proceeded to use a taser to acquire Mr. Smith's DNA. On appeal Mr. Smith challenged both the legality of the order and the use of the taser. In a 4-1 decision (People v Smith,2012 NY Slip Op 01896 (3/16/2012) the Appellate Division, Fourth Department agreed with Mr. Smith both that there was insufficient notice of the motion to seek DNA testing and that the use of the taser was improper.

Normally, this is the part in which quote from and discuss the decision. But I am very happy to report that Scott Greenfield has returned to blogging at Simple Jusice and has already written this excellent post on the case.

So I will just quote this portion of the decision regarding the use of the taser:

It is undisputed that defendant did not threaten, fight with, or physically resist the officers at any time; rather, he simply refused to open his mouth to allow the officers to obtain a buccal swab. . . We cannot agree with the suppression court that, after 10 to 15 minutes of asking a suspect to comply with a court-ordered buccal swab of which the suspect had no prior knowledge, it is reasonable for the police to tase a nonviolent, handcuffed, and secured defendant in order to force the suspect into submission.

While the People seek to characterize the use of a taser as a "minimal" degree of force and emphasized at the suppression hearing that defendant did not lose consciousness and suffered no visible scarring or injuries, we note that "extreme pain can be inflicted with little or no injury" (Hickey, 12 F3d at 757). The officers who witnessed the tasing incident acknowledged that the use of a taser causes pain and that, upon application of the taser, defendant appeared to be in pain and shouted for the officers to stop using it. Our review of a videotape of the tasing incident supports the conclusion that defendant was in pain upon application of the taser to his bare skin.

Congratulations to Mr. Smith's attorney, Mark Funk, for obtaining this reversal.

Order to Obtain DNA Doesn't Authorize Police To Use Taser to Acquire DNA

Confronted by the police who had an order to obtain his DNA, Ryan Smith reportedly told the police "You are gonna have to Taser me if you want my DNA." Ans so the police proceeded to use a taser to acquire Mr. Smith's DNA. On appeal Mr. Smith challenged both the legality of the order and the use of the taser. In a 4-1 decision (People v Smith,2012 NY Slip Op 01896 (3/16/2012) the Appellate Division, Fourth Department agreed with Mr. Smith both that there was insufficient notice of the motion to seek DNA testing and that the use of the taser was improper.

Normally, this is the part in which quote from and discuss the decision. But I am very happy to report that Scott Greenfield has returned to blogging at Simple Jusice and has already written this excellent post on the case.

So I will just quote this portion of the decision regarding the use of the taser:

It is undisputed that defendant did not threaten, fight with, or physically resist the officers at any time; rather, he simply refused to open his mouth to allow the officers to obtain a buccal swab. . . We cannot agree with the suppression court that, after 10 to 15 minutes of asking a suspect to comply with a court-ordered buccal swab of which the suspect had no prior knowledge, it is reasonable for the police to tase a nonviolent, handcuffed, and secured defendant in order to force the suspect into submission.

While the People seek to characterize the use of a taser as a "minimal" degree of force and emphasized at the suppression hearing that defendant did not lose consciousness and suffered no visible scarring or injuries, we note that "extreme pain can be inflicted with little or no injury" (Hickey, 12 F3d at 757). The officers who witnessed the tasing incident acknowledged that the use of a taser causes pain and that, upon application of the taser, defendant appeared to be in pain and shouted for the officers to stop using it. Our review of a videotape of the tasing incident supports the conclusion that defendant was in pain upon application of the taser to his bare skin.

Congratulations to Mr. Smith's attorney, Mark Funk, for obtaining this reversal.

Molineux is Alive and Well and Coming to a Courtroom Near You

In People v Cass (#28 decided 2/16/12) the defendant's claim of extreme emotional disturbance was undercut by the fact that he'd allegedly committed a nearly identical murder 14 months earlier. In both cases he claimed that he was surprised by men making sexual advances to him and he "just lost it". Though in the instant case Cass' belt was used to drag the deceased and in the prior case it was used to cause death. The defense countered the DA's request by saying that the prior allegations were not inconsistent with the claimed EED defense, but rather supported it, and in any event were highly prejudicial even if modestly probative.

The Court of Appeals held: "By asserting the defense of extreme emotional disturbance, defendant necessarily put his state of mind at the time of the Dombrova killing in issue. We have held that where a defendant puts an affirmative fact--such as a claim regarding his/her state of mind--in issue, evidence of other uncharged crimes or prior bad acts may be admitted to rebut such fact" ... "This highly probative evidence is directly relevant to defendant's extreme emotional disturbance defense in that it has a logical and natural tendency to disprove his specific claim that he was acting under an extreme emotional disturbance at the time of the Dombrova homicide (See Santarelli, 49 NY2d at 248). The evidence arguably shows that defendant had a premeditated intent to target gay men for violence, thereby tending to rebut the loss of control he claimed as part of his extreme emotional disturbance defense. Thus, the evidence tends to establish that the subjective element of the defense has not been made out." Thus, even if the Molineux evidence is not wholly inconsistent with the defense, if it has sufficient value as a counter to a proffered defense, it can be admissible. The Court of Appeals also stressed repeatedly the DA's theory, implying perhaps that a prosecution can be tailored to fit particularly nasty Molineux evidence.

The Court also upheld the use of Molineux to prove identity where the complainant was the defendant's wife and the defendant admitted being present at the scene of the crime when it took place (People v Agina Case #12). The complainant alleged that the defendant accused her of cheating on him, and that he proceeded to bind and torture her. He released her and the two then had four reasonably good days together before she alerted authorities. On the theory that since the defendant denied committing the crimes in question, he had placed identity in issue, the trial court allowed the defendant's ex-wife to testify that, 15 months before the allegations at trial, he had accused her of cheating on him, bound her and tortured her. The Appellate Division reversed, saying "identity my ass" (I haven't read the decision). The Court of Appeals reinstated the conviction. "The issue before us is whether defendant's identity was so conclusively established as to prevent the exception from being invoked. We hold that it was not." "While the existence of the complainant's injuries was proved by photographs, nothing in the People's case except the complainant's testimony (apart from the evidence of the uncharged crime) pointed to defendant as the person who injured her. Since the jury might doubt the complainant's word, this evidence was not conclusive. It is true, as the dissent says, that there was no possibility of mistaken identity (dissenting op at 2-3). But the jury could have believed that the complainant's identification was intentionally false, as defense counsel's opening suggested, in language quoted by the dissent: "she is not telling the truth" (dissenting op at 4)."

Judges Ciparek and Jones dissented for the obvious reason that the complainant's ability to identify her husband was not an actual issue at trial.