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about CAL: newsletter
CAL’S OUTSTANDING RELIEF RATE
A statistical analysis of First Department criminal appeals decisions that resulted in relief favorable to the defendant shows that CAL achieved the highest relief rate of any institutional or non-institutional provider from January 1, 2004 through April 30, 2007. During that period, the First Department issued a total of 2,390 decisions in criminal appeals (excluding Anders cases, in which the lawyer writes a “no-merit” brief, appeals withdrawn by stipulation and decisions relieving counsel). Out of this number, the defendant obtained a favorable result, that is, reversal or modification, in 267 cases. The overall relief rate for all First Department criminal appeals was 11.17%.
CAL received decisions in 848 cases and obtained relief for the defendant in 124 of them, for a relief rate of 14.6%. The relief rate for other First Department institutional providers, who received decisions in a total of 1,176 cases and secured relief in 104 of them, averaged 8.8%. There were 366 decisions obtained by other (non-institutional) lawyers, with relief for defendants in 39 of them. The relief for this group, which includes privately retained cases, was thus 10.6%.
While gratified by achieving the highest rate of favorable results in the First Department for the indicated period, CAL has always recognized that comparing so-called “win” or “relief” rates for defendants in criminal appeals in the First Department does not tell the whole story. For one thing, statistics may change over time as a matter of pure chance. Obtaining a favorable result for criminal defendants in the First Department is difficult, as is well known. Moreover, whether one wins or loses a criminal appeal does not necessarily reflect whether the appellate defense lawyer did a fine job. Often great effort and supreme craftsmanship go into an appeal which ultimately loses. That is the nature of criminal appellate practice. Finally, pure direct appeal relief rates do not reflect other efforts that the lawyer might be taking to vindicate the clients’ rights, such as seeking “non-appeal” collateral relief in State trial court or in federal court via habeas corpus. In that realm as well, CAL takes an aggressive approach and does just as well, if not better, than other groups of lawyers.
2007-2008 HIGHLIGHTS
CAL attorneys achieved outstanding results at many levels of the criminal justice system.
COURT OF APPEALS
Leave Grants/Pending Cases
Twelve CAL leave applications were granted in 2007, and nine more through September 2008.
People v. Collado, 47 A.D.3d 546 (1st Dept. 2008)
Whether an unidentified informant who personally speaks with police but then flees, thereby essentially becoming an anonymous informant, cannot provide the police with probable cause to arrest the defendant.
People v. Guerrero, 45 A.D.3d 313 , Furet, 47 A.D.3d 430; Christopher Harris, 46 A.D.3d 470 (1st Dept. 2007); and Lorraine Washington, 51 A.D.3d 521 (1st Dept. 2008)
Whether the mandatory surcharge and fees pursuant to C.P.L. 60.35 are components of a defendant's sentence that must be pronounced in the defendant's presence by the sentencing judge.
People v. Rouse, 47 A.D.3d 537 (1st Dept. 2007)
The First Department held that C.P.L. 30.30 (4)(f), which excludes "the period during which the defendant is without counsel through no fault of the court," applies when the defendant has counsel but counsel fails to appear (or is replaced) on a particular adjourn date. The defense contends the exclusion only applies to a period in which the defendant is totally unrepresented.
People v. Dorm, 47 A.D.3d 503 (1st Dept. 2007)
Whether, in this domestic violence prosecution, the People's extensive evidence of uncharged abusive and controlling behavior was admissible under Molineux and Ventimiglia as "background" evidence.
People v. Then, 47 A.D.3d 404 (1st Dept. 2007)
The First Department held that the defendant's release to parole in 2002 precluded resentencing under the DLRA on that conviction, reversed the trial court's resentencing grant and reinstated the original sentence, even though the defendant was serving time on and properly resentenced under a subsequent conviction.
People v. James, 47 A.D.3d 506 (1st Dept. 2008) (lv. grant by dissenter, 1/22/08)
Whether there was a reasonable view of the evidence that the defendant did not display what appeared to be a firearm, requiring submission of third-degree robbery as a lesser included offense of first-degree robbery, where the complainant testified that a firearm was displayed but an accomplice who testified for the People said that he did not see a firearm displayed.
Decisions
People v. Johnson, 10 N.Y.3d 875 ( 2008)
Having exercised its weight of the evidence review power in writing, the Appellate Division was required to confirm that it assessed the evidence in light of the elements of the crime as charged to the jury. Accordingly, the case was remitted to the Appellate Division to make that assessment. The Court of Appeals did not opine on whether the trial judge had discretion to order that the lineup be conducted in a sequential and blind manner; assuming that the trial court was authorized to do so, the Court found that there was no abuse of discretion.
Suarez v. Byrne, 10 N.Y.3d 523 (2008)
Double jeopardy and/or collateral estoppel do not bar retrial of the defendant for intentional manslaughter despite his acquittal of intentional murder and the previous reversal of his conviction for depraved indifference murder on the ground of legal insufficiency.
People v. Sparber, Lingle, Thomas and Rodriguez, 10 N.Y.3d 457( 2008)
A trial court must orally pronounce a term of post-release supervision, which is a component of the sentence, in the defendant's presence, even if the term is mandated by law. The failure to do so requires resentencing.
People v. Luciano, 10 N.Y.3d 499(2008) (leave grant to People)
When a trial judge determines that there has been a Batson violation, the court has discretion, in addition to reseating the prospective jurors, also to require the litigant to forfeit the improperly exercised challenges. In this case, no discretion was exercised in ordering forfeiture because the trial court was under the misapprehension that the law mandated forfeiture. The Appellate Division order granting a new trial was affirmed.
People v. Hall, 10 N.Y.3d 303 (2008)
If a stationhouse visual body inspection gives rise to probable cause to believe that contraband is concealed inside a suspect's body, the police must obtain a warrant authorizing the object's removal unless there are exigent circumstances. Since no warrant was obtained here, the evidence removed from the defendant's body was suppressed and the indictment dismissed. Five members of the Court agreed that a visual body inspection may be conducted if the police have a factual basis supporting a reasonable suspicion that the arrestee has evidence concealed inside a body cavity, and the visual search is conducted in a reasonable manner.
People v. Taveras and Jones, 10 N.Y.3d 227 (2008)
The pending but unperfected appeal of a former fugitive who is returned to custody, where the People had made no motion to dismiss the appeal, is not subject to dismissal pursuant to the fugitive disentitlement doctrine. Whether the appeal should be permitted to proceed is instead subject to the "broad discretion" of the Appellate Division, which may consider, among other factors, the merits of the appeal, whether the defendant's flight significantly interfered with the appellate process and whether there would be prejudice to the People should a retrial be ordered on appeal. Here, the Court found that the First Department did not abuse its discretion in dismissing the appeals.
People v. Leon, 10 N.Y.3d 122 (2008)
Affirming the First Department (36 A.D.3d 358 (1st Dept. 2007)), the Court held that the "trial right of confrontation" does not apply to a predicate felony hearing; accordingly, Crawford v. Washington, 541 U.S. 36 (2004) does not preclude the admission of affidavits setting forth fingerprint comparisons in order to establish the defendant's identity as the person previously convicted.
People v. Pasley and Danielson, 9 N.Y.3d 342 (2007)
In conducting weight of the evidence review, the Appellate Division must weigh the conflicting testimony and inferences in light of the elements as charged at trial. The Court reversed Pasley's conviction and remitted to the First Department for such review, because the latter court limited its weight of the evidence consideration to credibility issues. In Danielson, the Second Department did consider the evidence in light of the elements; that conviction was affirmed. CAL represented Pasley.
People v. Hill, 9 N.Y.3d 189 ( 2007)
Where the court promised a 15-year prison term but did not advise the defendant of post-release supervision at the time he pled guilty, the guilty plea was not knowing, intelligent and voluntary. The defendant was entitled to withdraw his plea despite the trial court’s modification of the originally imposed sentence from 15 years plus 5 years’ post-release supervision to 12½ years plus 2½ years’ post-release supervision.
People v. LeGrand, 8 N.Y.3d 449 (2007)
The hearing court erred when it precluded testimony by the defendant’s expert on the reliability of eyewitness identifications. Moreover, courts need not hold Frye hearings whenever such testimony is offered. Courts can rely upon previous rulings in other court proceedings to determine the admissibility of the proffered testimony.
People v. Rivera, 9 N.Y.3d 904 (2007)
The trial court did not err as a matter of law in denying defendant’s for-cause challenge to a prospective juror who repeatedly stated that he would shift the burden of proof onto the defendant and then promised to give his “best shot” at remaining open-minded. Stating that the evidence of guilt was overwhelming, the Court found that any error in the People’s failure to provide §710.30 notice as to police identification testimony was harmless.
People v. Long, 8 N.Y.3d 1014 (2007)
The defendant’s motion papers did not make the allegations necessary to require a suppression hearing where she had ample access to relevant information regarding the factual predicate for her arrest, including access to the People's “write-up” of her conduct which the court read to her and her counsel at arraignment.
People v. Parilla, 8 N.Y.3d 654 (2007)
Appellant’s guilty plea waived a statute of limitations challenge, and failure to move to dismiss based on that claim did not constitute Ineffective assistance of counsel.
People v. Nieves-Andino, 9 N.Y.3d 12 (2007)
Shooting victim’s on-the-scene statement to a police officer, which was made after the incident was over and the assailant had left the scene, and which described in detail the past criminal conduct, was part of an ongoing emergency and therefore not testimonial and not barred under the Sixth Amendment pursuant to Crawford and Davis v. Washington.
APPELLATE DIVISION, FIRST DEPARTMENT
Reversals, Dismissals and Modifications (apart from excessive sentence reductions)
People v. Florestal, __A.D.3d__, 2008 WL 2498101 (1st Dept.)
The trial court improperly instructed the jury that depraved indifference must be determined by an objective view of the circumstances, rather than according to the defendant's state of mind. Similarly, the trial court improperly refused to allow the defendant's expert witness to offer an opinion on whether the defendant's state of mind was that of depraved indifference to her child's condition. Even if the law on depraved indifference was arguably unclear at the time of the trial, cases on direct appeal are generally decided in accordance with the law as it exists at the time the appellate decision is made.
People v. Hill and Dandridge, 52 A.D.3d 380 (1st Dept. 2008)
Regarding Dandridge, whom CAL represented, the evidence was insufficient to establish that she intended to aid or actually aided any other member of the group to cause physical injury, and also the verdict was against the weight of the evidence. Her gang assault conviction was reversed and the indictment dismissed. A new trial was ordered for Hill because the trial court's instructions on justification and accessorial liability were erroneous.
People v. Waite, 52 A.D.3d 237 (1st Dept. 2008)
The defendant's consent to close the courtroom to the general public during the testimony of the undercover officers did not waive her separate right to confront witnesses. Accordingly, the trial court's ruling allowing the officers to identify themselves solely by shield number based on the public trial waiver constituted reversible error.
People v. Raosto, 50 A.D.3d 508 (1st Dept. 2008)
The trial judge unduly injected himself into the trial, particularly by examining the defense witnesses and conveying his disbelief of their testimony. The prosecutor improperly impeached the defendant with his silence and statements by prior counsel not attributable to the defendant. Defendant's counsel provided ineffective assistance. None of these errors was harmless. A new trial was ordered.
People v. George, 50 A.D.3d 453 (1st Dept. 2008)
The trial court erroneously denied a challenge for cause to a prospective juror who expressed doubt about his ability to be impartial because of his dealings with drug users and dealers in his medical practice and who never unequivocally stated that he could set aside his bias, render an impartial verdict based upon the evidence, and follow the court's instructions on the law.
People v. Graham, 48 A.D.3d 265 (1st Dept.) 2008)
The trial court should have granted the defendant's suppression motion. Instead of ceasing interrogation when the defendant said that he did not want to talk, a detective, without administering new Miranda warnings, described incriminating evidence, which elicited an admission from the defendant. In addition, the People's failure to turn over one of the defendant's statements violated their disclosure obligation under C.P.L. 240.20(1)(a); a new trial on the affected counts was warranted.
People v. Melendez and Garcia, 46 A.D.3d 461(1st Dept. 2007)
The First Department affirmed the trial court's grant of a 440.10 motion and vacatur of the defendants' convictions, agreeing that the prosecution, which knew of and did not disclose significant impeachment evidence, had committed a Brady violation. As part of a 6-month investigation for the 440.10 motion, CAL student interns had tracked down five flight attendants who met with or spoke with the trial prosecutor and told him that the complainant's tale of screaming for assistance while on a commercial flight to Puerto Rico were not true. The prosecutor failed to disclose that information, then argued in summation that the non-testifying flight attendants were part of a "conspiracy of passivity" that left the complainant kidnapped for over a year.
People v. Thorpe, 43 A.D.3d 672 (1st Dept. 2007)
The conviction was reversed and a new trial ordered on two grounds. The trial court improperly refused to allow a defense witness to testify, depriving appellant of the opportunity to refute the charge that he intended to sell the heroin he possessed. The error was compounded by the prosecutor’s summation. Reversible error also arose from the trial court’s almost continuous interference, during defense counsel’s cross-examination of the People’s witnesses, with respect to issues related to the defendant’s intent to sell.
People v. Shaw, 43 A.D.3d 685 (1st Dept. 2007)
The trial court should have conducted an inquiry after defense counsel advised the court of the juror’s comments indicating a possible bias against theefense. A new trial was ordered.
People v. Anderson, 41 A.D.3d 274 (1st Dept. 2007)
The trial court improperly denied appellant’s request to proceed pro se based on his statement that he had memory problems. A new trial was ordered.
People v. Ortiz, , 37 A.D.3d 361 (1st Dept. 2007)
The trial court erred in failing to disqualify juror who never unequivocally expressed her ability to separately assess the three incidents from which the charges against defendant arose. The court’s collective assessment of entire panel’s ability to use best efforts in this respect was not equivalent to a personal, unequivocal assurance from the individual prospective juror. A new trial was ordered.
People v. Perez, 37 A.D.3d 152 (1st Dept. 2007)
The court erred in failing to re-seat challenged jurors from a prior round where the Batson violation also applied to them. A new trial was ordered.
Hearing Ordered
People v. Mark Johnson, 42 A.D.3d 341 (1st Dept. 2007)
Although in the Grand Jury the defendant denied possessing a gun at the time of his arrest, a defendant may establish standing based on the People’s proof. The trial court therefore erred in summarily denying suppression where police claimed the gun was recovered from the defendant’s person. The case was remitted to Supreme Court for a Mapp/Dunaway hearing.
People v. Kenneth Rivers, 44 A.D.3d 391 (1st Dept. 2007)
The court had no discretion to dispense with a competency hearing where a C.P.L. 730 examination had been ordered and the defendant was found unfit to proceed. An incompetency finding may not be controverted on consent, so as to find the defendant fit, without a hearing. Rather than granting a new trial, the court ordered a hearing to reconstruct the defendant's competency at the time of trial.
Excessive or Illegal Sentence or Improper Sentencing Procedure
People v. Hamilton, 52 A.D.3d 227 (1st Dept. 2008)
The First Department ordered that all the sentences run concurrently, thereby reducing the aggregate sentence from 40 to 20 years.
People v. Delacruz, 46 A.D.3d 361 (1st Dept. 2007)
Three concurrent terms of 20 years for first-degree burglary were modified to 15 years.
People v. Jenkins, 46 A.D.3d 392 (1st Dept. 2007)
The portion of the sentence imposing post-release supervision was vacated because the crime was committed in 1996, before the effective date of Section 70.45 of the Penal Law. Since the issue involved the substantive illegality of the sentence, it survived the appeal waiver.
People v. Bailey, 43 A.D.3d 719 (1st Dept. 2007)
The defendant’s 7½ to 15-year sentence for attempted third-degree drug sale was modified to 3½ to 7 years in the interest of justice.
People v. Edwards, 37 A.D.3d 289 (1st Dept. 2007)
The defendant’s 25-year sentence for first-degree assault was modified to 15 years in the interest of justice. The Appellate Division may substitute its discretion with respect to a sentence even where a trial court has not abused its discretion.
People v. Wood, 37 A.D.3d 283 (1st Dept. 2007)
As the People conceded, the sentence for course of sexual conduct against a child must run concurrently with one of the sentences for sexual abuse and both sentences for sexual abuse must run concurrently with each other. P.L. §§70.25 [2-e], [2].
People v. Wells, 48 A.D.3d 330 (1st Dept. 2008)
While declining to reduce the sentence, the Court noted that the record failed to establish that the defendant's appeal waiver was valid. The Court amended the sentence and commitment sheet to strike the reference to sentencing as a second felony offender, which was a clerical error.
People v. Valentin, 37 A.D.3d 290 (1st Dept. 2007)
Where the People failed to respond to the defendant’s excessive sentence argument but simply contended that the appeal waiver was valid, the Court required them to respond to the sentence point.
People v. Langert, 40 A.D.3d 469 (2007)
The persistent violent felony adjudication and sentence of 25 years to life for third-degree weapon possession under P.L. §265.02 [1] was modified to 3½ to 7 years because a conviction under that subdivision is not a violent felony offense.
CAL continued its successful challenges to fees and surcharges that were improperly imposed or too high because the crime occurred prior to Penal Law amendments imposing or increasing fees. Where an appeal waiver had been sought, the First Department agreed that this issue survived the defendant’s waiver of the right to appeal because it involved the substantive legality of the sentence. Similarly, CAL successfully challenged the imposition of post-release supervision on defendants convicted of crimes convicted before the enactment of P.L. 70.45.
Other Cases or Issues of Note
Where a trial court’s oral imposition of sentence failed to include post-release supervision and/or fees, CAL has sought to vacate those portions of the sentence.
TRIAL COURT
Motion to Vacate Conviction or Sentence/Retrial
People v. Ortiz, 33 A.D.3d 432 (1st Dept. 2006)
After winning a reversal of the defendant's second-degree murder conviction, the CAL attorney assisted at his retrial in 2008. He was acquitted of murder and convicted of criminal facilitation, a non-violent C felony. In lieu of 20 years to life, he was sentenced to 71/2 to 15 years.
People v. Vaello, Bx. Ind. No. 1212/03 (2007) (Marcus, J.)
The trial court granted a 440.10 motion and vacated the defendant’s conviction based in ineffective assistance of counsel. The court stated that it “witnessed at first hand the impact of counsels’ ‘series of egregious deficiencies,’” including the failure to articulate reasons for challenges during voir dire, inadequate cross-examination, failure to object to damaging hearsay, failure to establish claimed weaknesses in the prosecution’s case, as promised to the jury, presentation of an unconvincing and apparently coached defense witness, use of conflicting defenses that cast doubt on each one, absence of timely alibi notice, an incoherent summation and other errors.
People v. Delima, N.Y. Ind. No. 3150/05 (2007)
The trial court granted a 440.10 motion and vacated the defendant’s guilty plea based on trial attorney’s conflict of interest. The attorney claimed that he had not received any money for the representation, but the attorney's case file contained a receipt showing that he had accepted money from an unknown source for the representation. This was particularly troubling because the then 13-year-old Mr. Delima was with two adults, who were not indicted, when he allegedly shot the decedent. The court ruled that given the attorney's repeated statements that he had not been paid for the representation, the appearance of impropriety was too great to allow the plea to stand.
People v. Corley, Bx. Ind. No. 84/04 (2007)
The prosecutor consented to the granting of our 440.10 based on ineffective assistance of counsel. The trial attorney failed to move to dismiss the defective criminal court complaint, then encouraged the defendant to take a plea to an SCI which charged the highest lawful count in the criminal court complaint while telling the defendant he was getting a bargain. CAL retained a drug expert, who submitted an affidavit verifying that a single street-level sale of PCP would contain far less than 250mg of pure phencyclidine. A new plea and sentence was negotiated, reducing the degree of the conviction and reducing the client's sentence from3 1/2-7 to 1 ½-3.
People v. Munneilyn, N.Y. Ind. No. 2000/01 (Solomon, J.) (2008)
The court granted our 440.20 motion to vacate the sentence on the ground that the defendant's North Carolina assault conviction did not constitute a felony offense under New York law and could not be used to enhance his sentence. The "serious injury" element in the North Carolina statute included mental as well as physical injury, the court found, and was broader than the injury element in New York. The court did not reach the additional contention that North Carolina used a common-law definition of assault that was broader than New York law.
People v. Taveras, N.Y. Ind. No. 7631/84 (Wetzel, J.)
With the People's consent, the court granted our 440.20 motion on the ground that the defendant's 5 to 15-year sentence on the second-degree bribery count was illegal. That offense was only a D, not a C, felony when the crime was committed. The court resentenced the defendant to 1 to 3 years, resulting in a reduction of his aggregate sentence from 30 years to life to 26 years to life.
People v. Graham, N.Y. County (2008); People v. Powell, Bronx County (2007)
In each case, with the People's consent, the defendant's plea was vacated because the SCI procedure was jurisdictionally defective. Graham re-pled and received a sentence of 1-3 years in lieu of 3-9 years; Powell re-pled and received 8 in lieu of 15 years.
People v. Sabouni, N.Y. County
The defendant was unable to pay the monthly restitution amount. With the People's consent, the court extended the period of restitution, cutting the required monthly payment in half.
DLRA and Post-Release Supervision Sentencings and Re-Sentencings
CAL has achieved sentence reductions for approximately 100 defendants convicted of A-I and A-II drug offenses, pursuant to the amended Rockefeller drug law. In addition to its own current or former clients, CAL volunteered to represent A-I and A-II offenders, convicted in the First Department, who needed representation in these proceedings and who were assigned to CAL by the court. Where resentencing was denied or issues remained following resentencing, CAL filed appeals in the First Department. A number of these cases are handled through CAL’s volunteer program.
CAL is handling resentencing proceedings and appeals for defendants who were placed on post-release supervision by DOCS despite the failure of the trial court to pronounce post-release supervision at sentencing, in the defendant's presence.
Article 78/State Habeas
CAL has sought to prohibit DOCS from imposing post-release supervision where the court did not orally impose that condition at sentencing, and has filed writs seeking the release of defendants incarcerated on post-release supervision violations where supervision was not imposed by the court.
FEDERAL COURT
Washington v. Poole, 507 F. Supp. 342 (S.D.N.Y. 2007) (Koetl, J.)
The defendant’s habeas petition was granted on the ground the judicial factfinding required at the second prong of analysis under New York’s discretionary persistent felony offender statute renders that statute contrary to federal law clearly established by Blakely v. Washington, U.S. v. Booker, and Apprendi v. New Jersey, and that the defendant’s sentence therefore violated his constitutional right to a jury trial. The defendant was released after CAL opposed, and the court denied, the People's stay application. The case has been argued in the Second Circuit.
Brown v. Miller (2d Cir.)
In this case currently before the Second Circuit, the defendant argued that he was denied his right to present witnesses in his own defense by the court’s preclusion of an alibi witness, that his conviction violates due process because unreliable identification evidence was placed before the jury, and that he was sentenced in violation of his Sixth and Fourteenth Amendment rights where his sentence was enhanced beyond that statutorily authorized for second-degree burglary based on factual findings made by the judge.
CAL attorneys have filed a number of habeas and cert petitions that challenge New York’s discretionary persistent felony offender statute in light of Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny. In other pending petitions, the grounds include violations of Batson and Crawford, deprivation of the right to counsel and ineffective assistance of counsel.
CONDITIONS OF INCARCERATION/PAROLE ADVOCACY/RE-ENTRY
Usually through the work of its legal interns, CAL seeks to ameliorate its clients’ conditions of incarceration and to correct administrative mistakes. Examples include assisting in transfer requests, correcting time computations , helping clients get into prison programs like CASAT, and obtaining the return of client property.
A notable example of CAL's parole advocacy program is the detailed letter, accompanied by certificates and letters of support, submitted on behalf of an inmate with a conviction for first-degree manslaughter, a violent felony offense, and who had spent a decade in prison. Her application was granted.
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