by

Jill Paperno, Second Assistant Monroe County Public Defender

The Court of Appeals reversed a conviction of Manslaughter in the First Degree on December 12, 2013 in People v. Oddone.  The defendant, Mr. Oddone, originally charged with murder, was convicted of manslaughter based on his choking of another man in a bar.  Oddone had been dancing with a woman on a table in a bar.  The bouncer, Reister, told him to get off.  When Oddone refused, Reister pushed him off the table.  A fight began and Oddone got behind Reister and put his arms around his neck.  Oddone choked him until Reister fell down, and continued to choke him while on top of him on the floor.  Reister passed out and died two days later.  Defendant let go and ran out of the bar.  The defense raised justification at trial.  The length of time Oddone choked Reister was hotly contested. 

In reversing this Oddone's conviction, the Court made three significant evidentiary rulings,
1.  The Deputy Medical Examiner was permitted at trial to testify about the duration of the period during which Oddone choked Reister based on the petechiae (red spots caused by bursting of blood vessels in the eyes) he observed as well as discoloration of Reister's face.   The defense claimed that there was no scientific basis for the testimony about how the appearance of petechiae could establish the length of time of compression on the neck.  The Court found that as the Medical Examiner testified based on his experience rather than scientific principle, a Frye determination was not required.  The Court noted that the defense can respond to such testimony with experts and cross.  (But what if you have no idea that an expert is about to go where no man has gone before?  It is difficult, if not impossible, to find an expert in the middle of trial.)
2.  A defense witness gave a prior statement to an insurance company investigator that the choking occurred for 6 to 10 seconds.  At trial she testified that it lasted about a minute or so, and that she didn't know how long.  Defense counsel sought to refresh her recollection. But the trial court refused to permit this, ruling that the witness had "given no indication she needs her memory refreshed."  The Court of Appeals, holding that this ruling was reversible error explained that,  

(W)hen a witness says an incident "could have" lasted "a minute or so" and adds "I don't know" the inference that her recollection could benefit from being refreshed is a compelling one.  More fundamentally, it was simply unfair to let the jury hear the "a minute or so" testimony - testimony damaging to the defense, from a defense witness's own lips - while allowing the defense to make no use at all of an earlier, much more favorable, answer to the same question.  The trial court suggested to defense counsel that this was "an effort to impeach your own witness," but counsel had not yet got to the point of impeachment; she only wanted to refresh the witness's recollection.  And in any event, technical limitations on the impeachment of witnesses must sometimes give way, in a criminal case, to a defendant's right to a fair trial. (Chambers v. Mississippi,410 US 284 [1973]).  (Emphasis added.)

This holding is extremely important. In Chambers the United States Supreme Court held that a state's evidentiary rule is trumped by and cannot preclude a defendant form introduce reliable evidence consistent with his right to present a defense. Subsequently, the Court, citing Chambers, ruling that “the hearsay rule may not be applied mechanistically to defeat the ends of justice” (Green v Georgia, 442 US 95, 97 [1979]). And now the New York Court of Appeals has cited Chambers for this same proposition. This is a holding that one would be wise to keep in the pocket for a rainy day or for your next trial.

3.  The defense sought to call a psychology professor to testify as an expert on the issue of eyewitness observations.  The witness would have explained that "It is generally accepted in the field of forensic psychology that eyewitnesses routinely overestimate the duration of relatively short events lasting a few minutes or less."  The trial court barred the testimony.  The Court, interpreting People v. Legrand, (abuse of discretion to exclude testimony about reliability of eyewitness identification if case is based solely on accuracy of witness's identification), noted that Legrandcan stand for the principle that "there are cases in which it is unfair to deprive the jury of expert testimony about the reliability of eyewitness observations."  Although the Court did not determine whether the exclusion of this testimony at trial was an abuse of discretion, it seemed to support its admission on the retrial necessitated by the reversal on the refreshing memory issue.
So one win, one loss, and one tie (but really close to a win).  And, if I'm interpreting it correctly, an interesting theme throughout the decision about what is fair to a defendant, rather than hypertechnical adherence to rules. 

 by

Jill Paperno, Second Assistant Monroe County Public Defender

The Court of Appeals reversed a conviction of Manslaughter in the First Degree on December 12, 2013 in People v. Oddone.  The defendant, Mr. Oddone, originally charged with murder, was convicted of manslaughter based on his choking of another man in a bar.  Oddone had been dancing with a woman on a table in a bar.  The bouncer, Reister, told him to get off.  When Oddone refused, Reister pushed him off the table.  A fight began and Oddone got behind Reister and put his arms around his neck.  Oddone choked him until Reister fell down, and continued to choke him while on top of him on the floor.  Reister passed out and died two days later.  Defendant let go and ran out of the bar.  The defense raised justification at trial.  The length of time Oddone choked Reister was hotly contested. 

In reversing this Oddone's conviction, the Court made three significant evidentiary rulings,
1.  The Deputy Medical Examiner was permitted at trial to testify about the duration of the period during which Oddone choked Reister based on the petechiae (red spots caused by bursting of blood vessels in the eyes) he observed as well as discoloration of Reister's face.   The defense claimed that there was no scientific basis for the testimony about how the appearance of petechiae could establish the length of time of compression on the neck.  The Court found that as the Medical Examiner testified based on his experience rather than scientific principle, a Frye determination was not required.  The Court noted that the defense can respond to such testimony with experts and cross.  (But what if you have no idea that an expert is about to go where no man has gone before?  It is difficult, if not impossible, to find an expert in the middle of trial.)
2.  A defense witness gave a prior statement to an insurance company investigator that the choking occurred for 6 to 10 seconds.  At trial she testified that it lasted about a minute or so, and that she didn't know how long.  Defense counsel sought to refresh her recollection. But the trial court refused to permit this, ruling that the witness had "given no indication she needs her memory refreshed."  The Court of Appeals, holding that this ruling was reversible error explained that,  

(W)hen a witness says an incident "could have" lasted "a minute or so" and adds "I don't know" the inference that her recollection could benefit from being refreshed is a compelling one.  More fundamentally, it was simply unfair to let the jury hear the "a minute or so" testimony - testimony damaging to the defense, from a defense witness's own lips - while allowing the defense to make no use at all of an earlier, much more favorable, answer to the same question.  The trial court suggested to defense counsel that this was "an effort to impeach your own witness," but counsel had not yet got to the point of impeachment; she only wanted to refresh the witness's recollection.  And in any event, technical limitations on the impeachment of witnesses must sometimes give way, in a criminal case, to a defendant's right to a fair trial. (Chambers v. Mississippi, 410 US 284 [1973]).  (Emphasis added.)

This holding is extremely important. In Chambers the United States Supreme Court held that a state's evidentiary rule is trumped by and cannot preclude a defendant form introduce reliable evidence consistent with his right to present a defense. Subsequently, the Court, citing Chambers, ruling that “the hearsay rule may not be applied mechanistically to defeat the ends of justice” (Green v Georgia, 442 US 95, 97 [1979]). And now the New York Court of Appeals has cited Chambers for this same proposition. This is a holding that one would be wise to keep in the pocket for a rainy day or for your next trial.

3.  The defense sought to call a psychology professor to testify as an expert on the issue of eyewitness observations.  The witness would have explained that "It is generally accepted in the field of forensic psychology that eyewitnesses routinely overestimate the duration of relatively short events lasting a few minutes or less."  The trial court barred the testimony.  The Court, interpreting People v. Legrand, (abuse of discretion to exclude testimony about reliability of eyewitness identification if case is based solely on accuracy of witness's identification), noted that Legrand can stand for the principle that "there are cases in which it is unfair to deprive the jury of expert testimony about the reliability of eyewitness observations."  Although the Court did not determine whether the exclusion of this testimony at trial was an abuse of discretion, it seemed to support its admission on the retrial necessitated by the reversal on the refreshing memory issue.
So one win, one loss, and one tie (but really close to a win).  And, if I'm interpreting it correctly, an interesting theme throughout the decision about what is fair to a defendant, rather than hypertechnical adherence to rules. 

Two CPW Decisions From the Court of Appeals

The Court of Appeals decided two CPW cases today.

In People v Jones (#185 decided 11/19/13), defendant was charged with CPW2 for possessing a weapon in his home, having been previously convicted of a crime.  He claimed that, despite his prior conviction, he could rely on PL 265.03(3)'s exception for home or business.  The Court of Appeals agreed with the Appellate Division decision below that PL265.03(3) creates an exception to the home or business exception.  It provides that possession of a loaded firearm "shall not, except as provided in subdivision one ... of 265.02 of this article, constitute a violation of this subdivision if such possession takes place in such person's home or place of business."  PL 265.02(1) applies to those who have previously been convicted of a crime. 

 Defendant had contended that the language meant that such possession was CPW3.  Defendant argued that, prior to 2006, possession outside of a home or business was CPW3, and the legislature made an error in drafting the statute.  The CoA held that the legislative history showed that the Legislature intended to increase CPW from 3 to 2 where the defendant had a prior conviction yet possessed a loaded firearm in his home or business.  Unhelpfully, there was a drafter's memo to the relevant legislation which said pretty much that.

Jones is also important because the Court of Appeals held that service by the court of a copy of an order does not start the clock for filing a notice of appeal.  Only service by the prevailing does so, and defendant never served the order on the People.  The notice of appeal, which would have been too late if the clock had started the day the court gave copies to the parties, was not untimely.

In People v Hughes (#184 11/19/13) the Court of Appeals rejected defendant's argument that, while punishing the defendant for CPW was okay, punishing it as a C felony violated the second amendment.  Defendant possessed an unregistered handgun at his ex-girlfriend's apartment, and used it (as found by the judge as trier of fact at the trial), to justifiably shoot a man defendant knew as "Maniac Guns" when he pulled a gun on defendant.  Defendant had a prior conviction for Resisting Arrest.  Under the decision above in Jones, defendant was guilty of CPW2.  Without the prior it would have been only CPW4.  The Court of Appeals rejected the argument that converting an A misdemeanor into a C felony based on a prior misdemeanor conviction violated the second amendment.  The Court held that, since only a "serious offense" would prevent the defendant from getting a license to possess the hangun in question, "there is no apparent reason why he could not have obtained a license to have a handgun in his home."  I have to wonder whether this last statement is in fact true, since unprosecuted complaints are sufficient to revoke a pistol permit already granted (Peters v Randall, 2013 WL 6038222  4th Dept Decided Nov 15, 2013).  The court noted that the issue was a novel one - whether there are limits to the increases a state can make to the severity of punishments for possessing weapons - but chose not to address it beyond saying that without strict scrutiny, the defendant could not prevail, and this was an intermediate scrutiny issue.

People v Hughes is important because the Court of Appeals upheld the Appellate Division decision that defendant's purported CPL 330 motion was sufficient to preserve his claim that the CPW2 conviction violated the second amendment.  The People argued that the CPL 330 motion was too late, and the CoA said "They had a point".  However, the court noted that the prosecution did not suggest that they had been prejudiced by the delay, and the trial court had ruled on the merits of the motion.  The Court of Appeals treated that the motion as one made under CPL 210.20, even though wrongly denominated a CPL 330 motion.  "The court, in the interest of justice, and for good cause shown, may, in its discretion, at any time before sentence, entertain and dispose of" such a motion on the merits (CPL 255.20[3]).  Because the issue was raised by defendant and decided by the trial court, the issue was preserved.

Two CPW Decisions From the Court of Appeals

The Court of Appeals decided two CPW cases today.

In People v Jones (#185 decided 11/19/13), defendant was charged with CPW2 for possessing a weapon in his home, having been previously convicted of a crime.  He claimed that, despite his prior conviction, he could rely on PL 265.03(3)'s exception for home or business.  The Court of Appeals agreed with the Appellate Division decision below that PL265.03(3) creates an exception to the home or business exception.  It provides that possession of a loaded firearm "shall not, except as provided in subdivision one ... of 265.02 of this article, constitute a violation of this subdivision if such possession takes place in such person's home or place of business."  PL 265.02(1) applies to those who have previously been convicted of a crime. 

 Defendant had contended that the language meant that such possession was CPW3.  Defendant argued that, prior to 2006, possession outside of a home or business was CPW3, and the legislature made an error in drafting the statute.  The CoA held that the legislative history showed that the Legislature intended to increase CPW from 3 to 2 where the defendant had a prior conviction yet possessed a loaded firearm in his home or business.  Unhelpfully, there was a drafter's memo to the relevant legislation which said pretty much that.

Jones is also important because the Court of Appeals held that service by the court of a copy of an order does not start the clock for filing a notice of appeal.  Only service by the prevailing does so, and defendant never served the order on the People.  The notice of appeal, which would have been too late if the clock had started the day the court gave copies to the parties, was not untimely.

In People v Hughes (#184 11/19/13) the Court of Appeals rejected defendant's argument that, while punishing the defendant for CPW was okay, punishing it as a C felony violated the second amendment.  Defendant possessed an unregistered handgun at his ex-girlfriend's apartment, and used it (as found by the judge as trier of fact at the trial), to justifiably shoot a man defendant knew as "Maniac Guns" when he pulled a gun on defendant.  Defendant had a prior conviction for Resisting Arrest.  Under the decision above in Jones, defendant was guilty of CPW2.  Without the prior it would have been only CPW4.  The Court of Appeals rejected the argument that converting an A misdemeanor into a C felony based on a prior misdemeanor conviction violated the second amendment.  The Court held that, since only a "serious offense" would prevent the defendant from getting a license to possess the hangun in question, "there is no apparent reason why he could not have obtained a license to have a handgun in his home."  I have to wonder whether this last statement is in fact true, since unprosecuted complaints are sufficient to revoke a pistol permit already granted (Peters v Randall, 2013 WL 6038222  4th Dept Decided Nov 15, 2013).  The court noted that the issue was a novel one - whether there are limits to the increases a state can make to the severity of punishments for possessing weapons - but chose not to address it beyond saying that without strict scrutiny, the defendant could not prevail, and this was an intermediate scrutiny issue.

People v Hughes is important because the Court of Appeals upheld the Appellate Division decision that defendant's purported CPL 330 motion was sufficient to preserve his claim that the CPW2 conviction violated the second amendment.  The People argued that the CPL 330 motion was too late, and the CoA said "They had a point".  However, the court noted that the prosecution did not suggest that they had been prejudiced by the delay, and the trial court had ruled on the merits of the motion.  The Court of Appeals treated that the motion as one made under CPL 210.20, even though wrongly denominated a CPL 330 motion.  "The court, in the interest of justice, and for good cause shown, may, in its discretion, at any time before sentence, entertain and dispose of" such a motion on the merits (CPL 255.20[3]).  Because the issue was raised by defendant and decided by the trial court, the issue was preserved.

Failure to State The Obvious Might Constitute Ineffective Assistance of Counsel

by
James Eckert, Assistant Monroe County Public Defender 

When dealing with a Hearing Court who knows what the law is, there is a real temptation to simply ask the right questions knowing that the judge knows what the argument is as a result.  The problem is that appellate courts look for counsel to conclude the hearing by saying "the fact that the police didn't have a description and didn't have a report of a crime and didn't have any reason to arrest the defendant except that they wanted to 'see what's up' failed to preserve the arguments made on appeal."  It doesn't matter that everyone in the room knows what the issue is.  

You have to say the magic words.

Also, if you start a suppression hearing by claiming that you're overwhelmed with work and cannot competently represent your client, don't be too surprised if people believe you.  The Court of Appeals, in People v Clermont (2013 NY Slip Op 06806 [10/22/13]) the defense suppression motion said defendant had been stopped in a car when no car was involved.  More importantly (because it's far more common), defense counsel did not argue the suppression facts following the hearing:

"At the suppression hearing, the attorney did not marshal the facts for the court and made no legal argument.  This, coupled with his failure to make appropriate argument in his motion papers or to submit a post-hearing memorandum, meant that the defense never supplied the hearing court with any legal rationale for granting suppression.  Moreover, after the court issued a decision describing the sequence of events in a manner that differed significantly from the testimony of the police officer (the only witness at the hearing) and was adverse to the defense, defendant's attorney made no motion to reargue or otherwise correct the court's apparent factual error.  Counsel never ascertained whether the court decided the motion based on the hearing proof or a misunderstanding of the officer's uncontradicted testimony."

Defense counsel's failure at any timeto make the key arguments is the reason counsel was ultimately found to be ineffective.  So a motion which lays out the facts and legal argument arising from those facts could be critical in some cases.  If you know what the hearing will be about, and there's no strategic reason not to lay it out in your papers, this is something to keep in mind.  Further, defense counsel erred in not taking exception to the court's misstatement of facts.  The burden to ascertain whether the court is mistaken or sloppy could be an uncomfortable one, but if you cite People v Clermont, I'm sure your judge will be very understanding and accept your criticism with grace and wit.  

The Court of Appeals relied on defense counsel's claim to be unable to provide effective assistance, but noted that counsel's representation was inadequate "before, during and after the proceeding".  In rejecting the prosecution's harmlessness argument, the Court of Appeals reaffirmed the importance of post-hearing argument and correcting a judge who messes up the facts, "In light of the litany of errors made by defense counsel, including the failure to offer legal argument concerning suppression or to attempt to correct the significant factual anomaly in the decision, our confidence in the fairness of the proceeding is substantially undermined."  Thus, the common practice of relying on the suppression court to know what the rules are and what the defendant's arguments would be (presumably given the questions asked by defense counsel) is risky.  Make a post-hearing argument either orally or in writing, laying out the facts and your legal argument arising from those facts.  Apparently you also have an obligation to take exception to the decision if it contains factual errors or is unsupported by the record.

Judges Rivera and Lippman dissented, giving a lengthy rendition of the facts saying that the gun should be suppressed.

Failure to State The Obvious Might Constitute Ineffective Assistance of Counsel

by
James Eckert, Assistant Monroe County Public Defender 

When dealing with a Hearing Court who knows what the law is, there is a real temptation to simply ask the right questions knowing that the judge knows what the argument is as a result.  The problem is that appellate courts look for counsel to conclude the hearing by saying "the fact that the police didn't have a description and didn't have a report of a crime and didn't have any reason to arrest the defendant except that they wanted to 'see what's up' failed to preserve the arguments made on appeal."  It doesn't matter that everyone in the room knows what the issue is.  

You have to say the magic words.

Also, if you start a suppression hearing by claiming that you're overwhelmed with work and cannot competently represent your client, don't be too surprised if people believe you.  The Court of Appeals, in People v Clermont (2013 NY Slip Op 06806 [10/22/13]) the defense suppression motion said defendant had been stopped in a car when no car was involved.  More importantly (because it's far more common), defense counsel did not argue the suppression facts following the hearing:

"At the suppression hearing, the attorney did not marshal the facts for the court and made no legal argument.  This, coupled with his failure to make appropriate argument in his motion papers or to submit a post-hearing memorandum, meant that the defense never supplied the hearing court with any legal rationale for granting suppression.  Moreover, after the court issued a decision describing the sequence of events in a manner that differed significantly from the testimony of the police officer (the only witness at the hearing) and was adverse to the defense, defendant's attorney made no motion to reargue or otherwise correct the court's apparent factual error.  Counsel never ascertained whether the court decided the motion based on the hearing proof or a misunderstanding of the officer's uncontradicted testimony."

Defense counsel's failure at any time to make the key arguments is the reason counsel was ultimately found to be ineffective.  So a motion which lays out the facts and legal argument arising from those facts could be critical in some cases.  If you know what the hearing will be about, and there's no strategic reason not to lay it out in your papers, this is something to keep in mind.  Further, defense counsel erred in not taking exception to the court's misstatement of facts.  The burden to ascertain whether the court is mistaken or sloppy could be an uncomfortable one, but if you cite People v Clermont, I'm sure your judge will be very understanding and accept your criticism with grace and wit.  

The Court of Appeals relied on defense counsel's claim to be unable to provide effective assistance, but noted that counsel's representation was inadequate "before, during and after the proceeding".  In rejecting the prosecution's harmlessness argument, the Court of Appeals reaffirmed the importance of post-hearing argument and correcting a judge who messes up the facts, "In light of the litany of errors made by defense counsel, including the failure to offer legal argument concerning suppression or to attempt to correct the significant factual anomaly in the decision, our confidence in the fairness of the proceeding is substantially undermined."  Thus, the common practice of relying on the suppression court to know what the rules are and what the defendant's arguments would be (presumably given the questions asked by defense counsel) is risky.  Make a post-hearing argument either orally or in writing, laying out the facts and your legal argument arising from those facts.  Apparently you also have an obligation to take exception to the decision if it contains factual errors or is unsupported by the record.

Judges Rivera and Lippman dissented, giving a lengthy rendition of the facts saying that the gun should be suppressed.

by

Jill Paperno, 
Special Assistant Monroe County Public Defender

Although it has been twenty years since the New York Court of Appeals in People v. Mendoza (82 NY2d 415 [1993])  held that a defendant does not have to sign an affidavit in support of a suppression motion, some local judges still believe they must.  Hopefully, the Fourth Department's recent decision in People v. Starlet Battle, decided on 9/27/13, will help put this issue to rest.  In Battle, the Fourth Department affirmed defendant's conviction based on factual insufficiency of the allegations contained in the motion.  However, the Court stated

We agree with defendant that the court erred in ruling that defendant, in order to be entitled to a suppression hearing, was required to submit an affidavit in support of her motion.  As the Court of Appeals has stated, "suppression motions must be in writing, state the legal grounds of the motion and 'contain sworn allegations of fact,' made by defendant or 'another person' " (People v. Mendoza, 82 NY2d 415, 421, quoting CPL 710.60[1].  A suppression motion may be based on factual allegations made upon information and belief by defense counsel, provided that, as here, the sources of the attorney's information and the grounds of his or her belief are identified in the motion papers (see CPL 710.60[1]).  The court also erred in suggesting that defendant was required to deny participation in the crime.  It is well settled that a defendant must 'deny participating in the transaction or suggest some other grounds for suppression' in order to warrant a suppression hearing (see Mendoza, 82 NY2d at 429 [emphasis added]).