Most Recently Decided Cases
Decided on January 9, 2020
The People v. Zhakariyya Muhammad
Decided on December 19, 2019
The People v. Tyrell Cook
Issue before the Court: Whether, after the People have had a full and fair opportunity to meet their burden at the suppression hearing, and the court hears oral argument on the motion, the court has the discretion to reopen the hearing to permit the People to offer additional evidence to fix a deficiency highlighted by the court during oral argument ?
Held: In a 5-2 decision, with the majority opinion written by Judge Garcia, the Court held that decisions to grant or deny a motion to present additional evidence prior to a ruling on the merits are reviewed under an abuse of discretion standard, and, here, the court’s reopening of the hearing was a permissible exercise of discretion.
CAL Observes: The defense had (valiantly!) argued, that the Court’s decisions in Havelka and Kevin W. collectively held that, once the People have strategically chosen to rest at a suppression hearing, after having had a full and fair opportunity to present their case, they may not reopen to introduce additional evidence, particularly if the court’s comments during oral argument following the close of the hearing identified deficiencies in the People’s proof.
The majority was unable to hold the People to their strategic choices, citing the “critical” truth-seeking function of a suppression hearing, and the strong public policy interest in holding culpable persons responsible for their actions, and protecting legitimate police conduct. The Court all-but dismissed the defense’s concerns with testimony tailored to meet deficiencies identified by the hearing court, and strategic gamesmanship. Rather than impose a bright-line rule, the Court deferred to the suppression court’s discretion, at least where the decision to reopen precedes the suppression court’s formal decision on the merits. While the Court warned that the People would still choose to rest at their peril, because a hearing court’s refusal to reopen would also be subject to the abuse-of-discretion standard, that seems to be an unlikely proposition. Armed with discretion, hearing courts—in the author’s humble opinion—are unlikely to deny motions to reopen by the prosecutor.
In light of the abuse-of-discretion standard, defendants should also argue that, where the People rest, and the suppression court “tips its hand” about perceived weaknesses in the People’s proof, the credibility of any subsequent testimony offered to cure those deficiencies should be viewed with skepticism.
Decided on December 19, 2019
The People v. Clinton Britt
(5-2, Judges Wilson and Rivera dissenting)
Issue before the Court: (1) was the evidence of Mr. Britt’s “intent to defraud, deceive or injure another” under Penal Law § 170.30 legally sufficient where he had $300 in counterfeit bills rubber-banded in a separate pants pocket? (2) could the police officer forcibly detain Mr. Britt, who was drinking something from a brown paper bag, then ran into a commercial attraction in Times Square when the officer approached?
Held: Yes and yes, over a scathing Judge Wilson dissent. As to the legal sufficiency issue, the majority acknowledged that, under its own precedent (People v. Bailey, 13 N.Y.3d 67 ), possession of counterfeit bills, doesn’t itself establish intent to defraud (i.e., to pass the bills). However, the majority distinguished Bailey, where the defendant possessed a smaller amount of counterfeit currency ($30), and the bills weren’t segregated from the defendant’s genuine bills. A Secret Service agent had testified at Mr. Britt’s trial that people who pass counterfeit currency will separate their counterfeit currency from their genuine bills. As to the forcible detention, the majority found sufficient evidence in the record to support the mixed-law-and-fact determination that defendant, by drinking from a concealed container and then fleeing, “had committed, or was committing, a crime.” (The majority also rejected the defendant’s challenge to the testimony of the Secret Service agent, finding defense counsel’s one-word “Objection” during the testimony inadequate to preserve the issue that he was not qualified to give expert testimony.).
Judge Wilson called out the majority on both issues. For the majority to find the evidence of intent legally sufficient was “inexplicable” and overturned Bailey. In particular, that Mr. Britt had the counterfeit bills segregated was equally consistent with not intending to pass it at all. As such, that fact “had zero probative value as to intent” and therefore was not relevant evidence on which a trier of fact could rely.
On the reasonable suspicion issue, Judge Wilson called this a “regression” to “policing based on stereotypes.” He criticized the legal basis for the seizure, correctly observing that drinking from an open container is a violation, not a crime. He also looked at the “larger context,” questioning how recent policies decriminalizing relatively minor offenses can be squared with chasing and forcibly detaining a man who was drinking from an open container, and then imprisoning him for years — at taxpayer expense and causing harm to those who rely on him — because he possessed $300 of counterfeit money. Judge Wilson’s dissent should be read in full, as it both excoriates this prosecution and humanizes Mr. Britt, something we rarely see from the courts, let alone the Court of Appeals.
CAL Observes: Judge Wilson called out this racist and classist seizure and prosecution for what it was. Advocates should use his dissent to support similar arguments, often the most apparent in search and seizure cases. And humanizing our clients, even if not directly relevant to the legal issue, is important. At least some judges may hear you.
Decided on December 19, 2019
The People v. Robert Ellis
Decided on December 17, 2019
The People v. Ramee McCullum
Decided on December 17, 2019
The People v. David Mairena & The People v. Mauricio Altamirano
Decided on December 17, 2019
The People v. Rudy C. Patterson
Decided on November 26, 2019
The People v. Stan XuHui Li
Issue before the Court: Whether evidence of second-degree manslaughters (reckless) was legally sufficient in trial of doctor whose patients overdosed on proscribed opioids?
Factual Background: Dr. XuHui Li, a board-certified physician, ran a pain management clinic that essentially acted as a “pill mill.” He routinely proscribed opioids, Xanax, and other medications upon request, with little to no physical examinations or follow-up. He was made aware that at least some of his patients were addicts at risk of overdosing, because he received calls to that effect from several patients’ concerned family members and medical practitioners.
Two of Dr. XuHui Li’s patients ultimately died of overdoses after filling prescriptions he’d written for them. Neither was a patient whom Dr. XuHui Li had been advised had an addiction or overdose history.
Dr. XuHui Li was charged in an 198 count indictment with various offenses related to his prescription-writing practices, including 2 counts of second-degree manslaughter for the overdose deaths of the two deceased patients.
Held: In a 6-1 decision (Wilson, J., dissenting), the Court held that the evidence of manslaughter was legally sufficient. According to the majority, even absent evidence that Dr. XuHui Li was directly advised that the two deceased patients were abusing their prescriptions and at risk of overdosing, the jury could nevertheless infer from surrounding circumstances that he was aware of and consciously disregarded a substantial and unjustifiable risk of that result.
CAL Observes: As Judge Wilson cautions in dissent, the ramifications of this decision have the potential to be sweeping, not only for medical practitioners but also for individual dealers in the midst of the current opioid crisis. Employing the majority’s reasoning, it seems that any dealer would be guilty of second-degree manslaughter if one of his customers died after overdosing on drugs he supplied.
While the logic employed by the majority here applies equally to medical practitioners, they are not likely to bear the brunt of this decision. As Judge Wilson notes in his dissent, the prosecution of doctors for homicide is exceedingly rare. This is that rare case in which the doctor’s conduct was so “grotesquely reckless” that punishing him for the deaths of these two patients seemed a moral imperative, even if not a legally sound one.
Decided on November 26, 2019
The People v. Victor Thomas; The People v. Nicole L. Green; The People v. Storm U. Lang
Issue before the Court: The effect on an appeal waiver where the written waiver form grossly mis-characterizes the scope of the defendant’s rights being waived.
Held: It depends upon how gross the mis-characterization was and whether the oral waiver cured the defect. In Green and Lang, the waivers were struck down. In Thomas it was upheld.
CAL Observes: This is yet another highly unfortunate and misguided decision. The majority consisted of four judges. Wilson, Rivera, and Garcia wrote separate opinions.
On the appeal waiver question, Rivera and Wilson thought all the waivers bad, and were critical of the whole appeal waiver process. Wilson wrote that appeal waivers should be abolished and Seaberg overruled; Rivera agreed.
Judge Garcia thought all the appeal waivers were fine– didn’t the words “appeal” and “waiver” appear in the same sentence? So what’s the problem? Garcia complains that, if waivers are struck down for being misleading, prosecutors might not be willing to enter into plea bargains!!!!
Defendants will suffer!!!!
In Green and Lang, the written waivers stated that the defendants were waiving all appellate rights including the right to have fees waived and to get assigned counsel. The oral waivers were no better. These waivers were struck down as grossly misleading. In Thomas, the written waiver included an admonition that the right to file a notice of appeal was also being waived– a phrase the court agreed was “incorrect”--but was purportedly otherwise fine. The oral waiver, according to the four-judge majority, was perfect and cured any defect. (In reality, the oral waiver was terrible as well, but in different ways.)
On the minus side of the majority decision, it extols the wonders and great benefits to the parties, including the defendant, of appeal waivers– a proposition that no practicing public defender thinks is other than riotously laughable.
On the plus side: the majority (1) did note that the notice-of-appeal-waiver was “incorrect,” contrary to the Bronx DA’s position. So at least the Bronx DA’s office will not be re-inserting that language into their waivers, with the idea of continuing to mislead defendants and their lawyers into believing that they could not file a notice of appeal, and (2) did acknowledge (in line with Garza v. Idaho) that the term “appeal waiver”was a misnomer, since the waiver only narrowed the issues that could be raised on appeal, and (3) did strike down, as grossly misleading, written waivers of the type still used in some jurisdictions, including Queens County.
Long term: more dodgy appeal waivers will be upheld.
Decided on November 25, 2019
The People v. Clarence Rouse
Issue before the Court: Whether a defendant has a right to cross-examine police witnesses about having lied to a federal prosecutor in an unrelated case and the fact that a federal judge has found their testimony to be incredible.
Held: In a unanimous decision, with an opinion written by Judge Fahey, the Court held that the trial court abused its discretion when it did not permit defense counsel to ask a police officer whether he had previously lied to a federal prosecutor about his involvement in a ticket-fixing scheme when he was preparing to testify in a federal prosecution, and also abused its discretion when it did not allow the defense to question two police witnesses about the fact that two federal judges had found them incredible in unrelated suppression hearings.
CAL Observes: Protecting a criminal defendant’s right to cross-examine the People’s witnesses, even police officers, may be the only area of law favorable to defendants upon which the full court agrees.
People v. Smith, 27 N.Y.3d 652 (2016) had unanimously held that a defendant has a right to cross-examine police witnesses about their alleged prior misconduct underlying civil lawsuits brought against them in their capacity as police officers, if that misconduct was relevant to the proceedings for which defendant was on trial. Counsel has a right to cross-examine about the underlying facts of a lawsuit even if there is no finding or concession of responsibility. Smith articulated a three-step rule for assessing the appropriateness of such questioning:
First, counsel must present a good faith basis for inquiring, namely, the [proceeding] relied upon; second, specific allegations that are relevant to the credibility of the law enforcement witness must be identified; and third, the trial judge exercises discretion in assessing whether inquiry into such allegations would confuse or mislead the jury, or create a substantial risk of undue prejudice to the parties. Id. at 662.
In Rouse, the Court held that the Smith protocol was not limited to allegations of misconduct underlying civil lawsuits, but extended to other areas that reflected on the officer’s credibility. First, the Court found that, because defense counsel had a good-faith basis to ask the police witness about lies he’d told a federal prosecutor, it was an abuse of discretion to forbid that questioning, because the officer’s willingness to lie to a federal prosecutor was relevant to the credibility of his testimony in this case. Second, the Court found that it was also an abuse of discretion to forbid defense counsel from questioning two police witnesses about the fact that they had been found incredible by two federal judges at suppression hearings. Under the Smith protocol, defense counsel had a good faith basis for the questions, the federal judge’s credibility determinations were probative of the officer’s credibility in the current prosecution, and there was no danger that the jury would view the prior credibility determinations as binding, because the jury could be properly instructed.
The Court’s unanimity in Rouse signals that it may be open to other attacks on police credibility. In light of the new information about police misconduct publicly available, opportunities exist to extend Rouse. If, for example, an officer has been found incredible at NYPD disciplinary proceedings or at CCRB proceedings, Rouse appears to guarantee a right to effective cross-examination.
Decided on October 29, 2019
The People v. Mouhamed Thiam
Issue before the Court: Where an accusatory instrument charges multiple counts, with the lesser jurisdictionally sufficient and the greater facially deficient, does the court have the power to accept a guilty plea to the unsupported count; and does a claim that to do so is error survive a guilty plea?
Held: No, and yes.
CAL observes: The memorandum opinion of the four-judge majority stands for a simple proposition: an appeals court properly reverses a conviction, after a guilty plea, of a factually unsupported top count of a multi-count instrument. This claim is not waived because of a guilty plea.
Yet, the majority split into two concurring opinions, and three judges dissented, revealing fracturing beyond that simple statement. The Chief Judge, joined by Judge Wilson, helpfully reminds us that due process undergirds this question, noting that, fundamentally, defendants’ pleas must be knowing, and plea bargaining predicated on fairness. Where a defendant such as Mr. Thiam pleads to an offense that the prosecution has not adequately alleged, his bargaining position is unfairly altered (because he is under the potentially mistaken impression that the State can prove an offense of greater degree and seek a higher penalty than what it actually could), and he does not have the requisite knowledge to be able to enter a voluntary and intelligent plea. This rule flows logically from the Court’s holdings in felony prosecutions, where arguably there are even more procedural protections, that a court may not accept a guilty plea to a count of higher grade than any validly pleaded offense. Otherwise, plea bargaining would be “lopsided” and would “negatively impact the basic fairness of the criminal justice system.” The burden of “providing a properly pleaded accusatory instrument rests with the People,” which is why dismissal of the charges here in full is appropriate.
But, this opinion is arguably narrower in scope than what Judge Fahey, joined by Judge Rivera, writes in his opinion. There, Fahey seems to endorse the broader view that a guilty plea to any deficient offense in the accusatory instrument, even if that offense is not the top charge, must be vacated. (This understanding was predicated on a reading of C.P.L. § 100.40, which states that the jurisdictional sufficiency of each count in an accusatory instrument must be considered severally.) However, this question is one for another day.
Splitting on the question of remedy as well, Judge DiFiore concludes that the lesser, adequately pleaded charges may not be revived because that was a proper exercise of the Appellate Term’s authority, whereas Judge Fahey—concluding that it is “immaterial” whether a count dismissed as part of the plea to the top charge was adequate—would simply find that the pleaded-to count was deficient, and reverse and dismiss accordingly. The dissent, by contrast, would find that the facially sufficient lesser count saved the complaint, meaning that the error in allowing Thiam to plead to an unsupported count was nonjurisdictional and thus waived by guilty plea. Thankfully, this view did not command majority support.
Decided on October 24, 2019
The People v. Michael Cubero
Decided on October 24, 2019
The People v. Manuel Rodriguez
Decided on October 22, 2019
The People v. Omar Deleon
Issue before the Court: Whether the prosecution presented the grand jury with legally sufficient proof of attempted grand larceny in the third and fourth degrees.
Factual Background: The police put two money orders with a combined value of over $3,000 into a mail collection box they were monitoring for theft. Deleon was apprehended before pulling out a “fishing device”–a sticky water bottle designed to adhere to envelopes–from the box. He admitted that he was being paid $100 per fished mailbox. No evidence was presented to the grand jury that the bottle adhered to either of the money orders. Deleon was subsequently charged with attempted grand larceny in the third and fourth degrees. The trial court dismissed the third degree count and reduced the fourth degree count to attempted petit larceny on the ground that the prosecution failed to prove intent with regard to the property value elements of each offense. The prosecution appealed.
On appeal, the First Department reversed and remanded. Citing People v. Miller, 87 N.Y.2d 211 (1995), the court held that the property value elements at hand were “strict liability aggravating factors” to which an intent requirement does not attach, irrespective of whether an attempt or completed offense is charged.
Held: In a unanimous memorandum opinion, the court held that the prosecution presented insufficient evidence that Deleon came “dangerously close” to taking property valued in excess of $3,000 and $1,000. There was no evidence that the items attached to the fishing device had any monetary value, no evidence of the quantity of mail in the box, and no evidence that it was physically possible for Deleon to retrieve the two money orders amidst the other mail.
CAL Observes: Although the court made the right call as to the deficiencies in the prosecution’s proof, it evaded the crux of the First Department’s decision, which centered on the elements to which intent may attach, specifically in the context of an attempted crime. Perhaps this sidestep indicates discomfort with (but an unwillingness to confront) Miller’s overgrowth. As Judge Simons argued in his Miller dissent, where a person does not intend a specific result, he cannot attempt it. In any case, this decision seems to inject life back into the meaning of “prima facie case”and “dangerously close,” even in the face of the “light most favorable to the prosecution” standard.
Decided on October 22, 2019
The People v. M. Robert Neulander
Factual Background: Neulander was convicted of murdering his wife and evidence tampering following a jury trial. He filed a C.P.L. §330.30 motion to set aside the verdict alleging that a trial juror had discussed the case, reviewed media accounts of the trial and lied about it, doctored her text messages, and deleted her internet browsing history. The trial court found the juror had engaged in misconduct but that it did not deny Neulander a fair trial. The Appellate Division reversed and ordered a new trial.
Issue before the Court: Whether the undisputed misconduct committed by the juror entitled Neulander to a new trial?
Held: As nothing is more basic to the criminal process than trial by an impartial jury, and a defendant is entitled to be tried by jurors who follow the court’s instructions, do not lie in sworn affidavits about their own misconduct and do not make efforts to conceal and erase their misconduct, the Court of Appeals affirmed the Appellate Division’s decision granting a new trial. Jurors must be expected “at the very minimum, to obey the admonishments of the trial court, report attempts by others trying to influence their oath to be objective and be forthcoming during court inquires into their conduct as a juror.”
CAL Observes: Seems like there is a lot of juror misconduct out there, but uncovering it is tricky and often fortuitous. Here, a fellow juror revealed the lying juror’s misconduct and the court ordered a forensic examination of her cell phone which revealed that during the trial she had accessed daily news coverage of the proceedings. Of note, the Court rejected the prosecution’s argument that the misconduct was outweighed by the substantial proof of guilt, observing “the right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right.” Haven’t heard that in a while from this Court of Appeals.
Decided on October 22, 2019
The People v. Marcelino Allende
Decided on October 17, 2019
The People v. Rong He
Issue before the Court: Did the prosecution violate Brady by failing to disclose contact information of potential key witnesses?
CAL Observes: The defendant in Rong He was convicted after the prosecution refused to disclose a key witness’s contact information. The Court of Appeals held that the prosecution’s refusal “to provide any means for defense counsel to contact the witnesses other than through the prosecution itself” amounted to suppression of the information. The Court found the information “clearly favorable to the defense” and held that there was a “reasonable possibility” that investigation into the suppressed witness information would have affected the trial. The prosecution violated Brady.
The Court of Appeals gets a lot wrong these days. But it got Rong right. The Court’s recent Brady precedent has been a mixed bag, especially when it comes to materiality. In one prior case, People v. Giuca, the Court found no “reasonable possibility” (the relaxed materiality standard) that some pretty damning impeachment evidence would have affected a trial. In another case, however, People v. Ulett, there was a “reasonable probability” (the more stringent standard) that some grainy video surveillance, if disclosed, would have made a difference. It’s not hard to see this Court coming out against the defendant in Rong He, finding too speculative and remote the possibility that merely disclosing a witness’s contact information would ultimately impact the trial. The decision gives us some hope that the lenient “reasonable possibility” standard for materiality is actually as defense-favorable as it sounds.
Decided on September 5, 2019
The People v. Jonathan Monforte
Decided on November 27, 2018
The People v. Damian Jones
Issue before the Court: Whether, in a prosecution against the defendant for enterprise corruption, the prosecution presented sufficient evidence that defendant had knowledge of the existence of a criminal enterprise and intended to participate in its affairs?
Held: No. Although the defendant participated in three requisite criminal acts, critical trial evidence showed that the defendant was “isolated from — rather than employed by or associated with — the enterprise, and that defendant acted independently on his own behalf, with the singular purpose of serving his own interests.” Accordingly, the prosecution failed to present legally sufficient evidence to satisfy the mens rea element of enterprise corruption. Concurring, Justice Rivera agreed that the People failed to establish sufficient evidence of the defendant’s mens rea, but reached that conclusion “for the more fundamental reason that defendant cannot have knowledge of a nonexistent criminal enterprise.”
CAL Observes: This was a unanimous and brief memorandum (in result) decision. The big-ticket item here is Judge Rivera’s informative 24-page concurrence that provides a useful primer on New York’s “Baby RICO” statute, called the Organized Crime Control Act. Penal Law § 460.20 is the class B felony of enterprise corruption, created under the OCCA. The OCCA is aimed at reaching the higher-ups who run the organized entity. These actors are otherwise difficult to prosecute under existing laws because they are insulated by the complex organizational structure they’ve created to carry out the crimes. Legitimate businesses are often infiltrated for this purpose. Here, the defendant was prosecuted in a purported motorcycle theft, where another individual would distribute the cycles defendant stole. Although the sales followed a typical pattern, the defendant stole the bikes without direction from a superior, and there was no hierarchy of authority or a system of ascending commands that directed and approved of its members’ actions.
Decided on November 27, 2018
The People v. Saylor Suazo
Issue before the Court: Whether a noncitizen defendant who demonstrates that a charged crime carries the potential penalty of deportation is entitled to a jury trial even if the potential incarceratory sentence is less than six months, the presumptive dividing line between serious and petty offenses under the Sixth Amendment.
Held: Defendant was entitled to a jury trial, even though the crimes for which he was charged, class-B misdemeanors, carried a maximum Penal Law sentence of three months’ incarceration, because the potential consequence to defendant should he be convicted—deportation—made them serious within the meaning of the Sixth Amendment.
CAL observes: New York City defendants, unlike those in the rest of the State, are not statutorily entitled to jury trials if they are charged with nothing more serious than class-B misdemeanors. CPL 340.40(1). The Sixth Amendment right to a jury trial does not automatically attach to those charged with class-B misdemeanors, because the maximum Penal Law sentence is three months’ incarceration. The presumptive threshold for a jury trial under the Sixth Amendment is six months’ imprisonment. Under the Sixth Amendment, then, NY City defendants facing class-B misdemeanors are not ordinarily entitled to jury trials.
NYC prosecutors routinely exploit this option, reducing class-A misdemeanor charges to class-Bs on the eve of trial, thereby depriving defendants of jury trials, a practice that has been approved by the New York Court of Appeals. See People v. Urbaez, 10 N.Y.3d 773 (2008).
In Suazo, the Court recognized that, at least for a noncitizen defendant, the three-month-maximum jail sentence might be the least of defendant’s worries, as many class-B convictions carry the drastic non-penal consequences, including deportation.
Further litigation of the issue is likely to focus on, among other things, the showing a noncitizen must make to invoke Suazo’s jury trial right. In the opening sentence of her majority opinion, Judge Stein stated the rule broadly, requiring defendant to show only the possibility of deportation, not that it would be certain, or even likely, should defendant be convicted: “Today, as a matter of first impression, we hold that a noncitizen defendant who demonstrates that a charged crime carries the potential penalty of deportation—i.e. removal from the country—is entitled to a jury trial under the Sixth Amendment” (italics added). The decision does not require that defendant show s/he will be deported, only that a charged crime carries the potential for deportation. Judge Stein later noted that a noncitizen “may be deported, or forcibly removed from the country, if convicted of a variety of crimes, including a ‘crime of moral turpitude’ under certain conditions, an ‘aggravated felony,’ most controlled substance offenses, various firearm offenses, ‘[c]rimes of domestic violence, stalking, or violation of [a] protection order, [and] crimes against children’” Although Mr. Suazo showed that at least one of the charges he faced was classified as a “deportable” offense, that was not a requirement for a jury trial; defendant need only show that a conviction might lead to deportation.
Decided on November 20, 2018
The People v.Tamarkqua Garland
Decided on November 20, 2018
The People v. Rodney Watts
Issue before the Court: Are event tickets the type of “instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status” such that a person can be prosecuted for second-degree criminal possession of a forged instrument (Penal Law § 170.25) for possessing a ticket?
CAL Observes: The court initially framed the question here as whether concert tickets were more alike in kind to a “revocable license,” as long-standing case law had established, and thus not conferring heightened criminal liability on those who might unlawfully possess them, or to the other instruments enumerated in the second-degree forgery statute, whose definition was incorporated by reference in Penal Law §170.25. Those instruments included things like deeds, wills, contracts, commercial instruments, and credit cards. Ultimately, the Court found that under either theory, Mr. Watts’s argument that his conduct did not come within the felony-level forged instrument proscriptions could not prevail. First, a revocable license does not mean no important legal rights are conferred on the holder such that its unlawful possession can be proscribed by the Penal Law. Second, even if the instrument must be found similar to the other enumerated instruments in the second-degree forgery statute, a concert ticket would fit that bill. In so finding, the Court effectively sanctioned broad interpretation of this statute, notwithstanding principles of statutory construction that might counsel for prosecutorial circumspection. But, perhaps some limitation comes from the Court’s penultimate paragraph, which finds concert and sports tickets critical to New York’s culture and economy: possessing an instrument that is not enumerated but also not so interwoven in the State’s economic life as a ticket is might not create felony liability.
Decided on November 20, 2018
The People v. Rohan Manragh, Jr
Issue before the Court: Whether a defendant’s guilty plea automatically forfeits an appellate claim that the integrity of the grand jury proceeding is impaired by the prosecutor’s refusal to ask the grand jury to vote on whether to call a witness that the defendant requested.
Held: The 5-2 majority dodged this threshold issue, not deciding it. Instead, the majority looked at the merits of the defendant’s claim, decided that the prosecutor erred but, under the particular facts of this case, the integrity of the process was not constitutionally impaired because the witness’s proposed testimony would not really have been helpful to the defense, and thus held the claim “forfeited” by the guilty plea. Judge Rivera, joined by Judge Fahey, concurred in the result, agreeing with the majority as to their view of the merits. The dissent noted that the majority had dodged the threshold issue–to wit, does such a claim survive a guilty plea, instead putting “the cart before the horse.” The dissent would have held that such an issue is not forfeited by the guilty, even if it loses on the merits upon the facts of a particular case.
CAL Observes: Under People v. Pelchat, 62 NY2d 97 (1984), a claim going to the integrity of the grand jury process, such as this one, survives a guilty plea. The dissent is thus correct. The majority’s dodging of the threshold issue is not comprehensible. The majority decision is completely unhelpful to future litigants.
Decided on October 23, 2018
The People v. Steven Baisley
Decided on October 23, 2018
The People v. Jakim Grimes
Issue before the Court: Is coram nobis relief available, under the State Constitution, to cure defense counsel’s failure to make a leave application to the Court of Appeals? NO.
Factual Background: In November 2015, the Appellate Division, Fourth Department affirmed Jakim Grimes’s conviction. As later admitted by assigned counsel, the lawyer told Mr. Grimes that he would ask the Court of Appeals for leave to continue the appeal in that court. Counsel, however, never filed the leave application and later admitted that the case was closed by mistake. When Mr. Grimes later contacted the lawyer to find out what had happened, the lawyer discovered his error. By that time, however, not only had the 30-day deadline for a leave application passed, C.P.L. § 460.10, but counsel had also just missed being within the one-year grace period under C.P.L. § 460.30 to seek permission to file a late leave application. So counsel tried filing a coram nobis motion in the Appellate Division arguing that the defendant had been denied his constitutional rights. The Appellate Division denied the motion but a judge granted permission to appeal the coram nobis denial.
Held: In a 5-2 decision, the Court held that coram nobis relief was unavailable because defendants have no constitutional right to legal representation on the criminal leave application, 32 N.Y.3d at 319. “[I]n the absence of a violation of a constitutional right, coram nobis does not lie.” 32 N.Y.3d at 304.
This holding was an extension of a prior decision in People v. Kruger, 23 N.Y.3d 605 (2014), where the Court came to the same legal conclusion as a matter of federal constitutional law.
In affirming, the Grimes majority distinguished People v. Syville, 15 N.Y.3d 391 (2010), where a coram nobis motion was permitted to cure a lawyer’s mistake in not filing a timely notice of appeal to the Appellate Division. Individuals in New York State have an automatic right to appeal their criminal convictions to the “first tier” of appellate review – generally, the Appellate Division or the Appellate Term. For such as-of-right appeals, there is a constitutional right to counsel. 32 N.Y.3d at 311, citing Douglas v. California, 372 U.S. 353 (1963). In contrast, second-tier appeals to the Court of Appeals are available only by permission and there is no constitutional right to counsel on a second-tier appeal. By extension, there can be no claim of ineffective assistance of counsel on a second-tier appeal.
CAL Observes: In the majority opinion, Chief Judge DiFiore emphasized that Court of Appeals’ review is not geared towards determining whether there has been “a correct adjudication of guilt,” but rather whether the case involves legal principles of major significance. 32 N.Y.3d at 313. Moreover, to pick out cases that meet that criteria, it’s not really necessary to have a lawyer prepare the leave application. The Court gets the record from the Appellate Division along with the Appellate Division opinion and the previously-filed briefs. These materials, supplemented perhaps by a pro se litigant’s own submission, give the Court an adequate basis for its decision to grant or deny further review. 32 N.Y.3d at 312-13, quoting Ross v. Moffitt, 417 U.S. 600, 615 (1974). The Chief Judge didn’t address the problem that Mr. Grimes did not know that his lawyer had not filed a leave application and so the Court never reviewed the record from the first-tier appeal.
Judge Wilson, in dissent, stressed that the Rules of the Court of Appeals require lawyers to file a leave applications in criminal appeals, if requested by the client. 32 N.Y.3d at 321. Indeed, a criminal defendant has a right to have his or her lawyer file a leave application to the Court of Appeals – that is not discretionary. 32 N.Y.3d at 325. Moreover, Judge Wilson took issue with the majority’s position that Court of Appeals judges “do not need the parties’ lawyers to assist us in determining when to grant leave” and he reviewed the many challenges of the criminal leave application process. 32 N.Y.3d at 323. Judge Wilson concluded,
Even if our Court is concerned more with “matters of public import” than “errors in individual cases,” . . . the assistance of counsel is essential not only to insure the rights of the individual, but for the protection and well-being of society was well. . . . It is also just plain weird to say that we require appointed counsel to prepare [leave applications] but refuse to hold counsel to minimal standards of professional conduct, leaving defendants (and this Court) to suffer the consequences.
32 N.Y.3d at 336.
Decided on October 16, 2018
The People v. Raymond Crespo
Issue before the Court: When does a trial commence for purposes of the timeliness of a defendant’s motion to represent himself pro se at trial?
Held: A jury trial commences “when jury selection begins.”
CAL Observes: This is yet another blow to defendant’s rights, championed in a 4 to 3 decision by the Chief Judge herself, while displaying no hesitation to set aside 40 years of precedent to do so.
In the seminal case of People v. McIntyre, 36 N.Y.2d 10 (1974), the Court of Appeals had established a three-pronged analysis for deciding when a defendant in a criminal case may invoke his or her constitutional right to proceed pro se : (1) the request must be unequivocal and timely asserted; (2) there must have been a knowing and voluntary waiver of the right to counsel; and (3) the defendant must not be engaged in conduct which would prevent the fair and orderly exposition of the trial. Id. at 17. In McIntyre, the defendant made his request in the midst of jury selection, which was not determined to defeat his claim, and that has been the case in numerous cases since McIntyre.
Judge DiFiore’s decision in Crespo dismisses the timeliness issue in McIntyre and other cases as dicta, and instead relies on a change from the old Code of Criminal Procedure definition of trial as beginning with opening statements, which was the law at the time of the trial here, to the newer Criminal Procedure Law definition under CPL 1.20, that the trial begins with “the selection of the jury.” The Court concludes that this language means not after the jury is selected, but with the beginning of the selection procedure itself. In Crespo, the defendant, who had requested but been denied new counsel repeatedly, had only first asked to represent himself pro se during jury selection. The Court thus held this to be an untimely request that was properly denied by the trial court.
In a strong dissent, Judge Rivera, joined by Judges Fahey and Wilson, chided the Court for overturning well-established Court of Appeals precedent for virtually no reason other than that the composition of the Court has changed and they prefer a different rule. Judge Rivera opined that the plain meaning of the C.P.L. definition that a trial begins at the time of “the selection of the jury” should mean after the jury has been selected, not during the process itself. The majority decision only causes further confusion as to when that begins: when the jurors are on their way up to the courtroom, in the hallway, or at some other point?
The dissent notes that no actual problem was identified from the old rule; in fact, jury trials are occurring much less often these days than when McIntyre was decided, and the number of cases where this issue is implicated is small. Judge Rivera also delivers a nice lesson on Bluebook usage to Judge DiFiore as to the meaning of the citation “See” in footnote one of her dissent.
Judge Rivera also underscored the irony in Judge DiFiore’s use of People v. Antommarchi, 80 N.Y.2d 247 (1992), to limit a defendant’s constitutional right to appear pro se, when Antommarchi itself was intended to expand the rights of defendants.
Decided on October 11, 2018
People v. Marvin Drelich
Decided on September 13, 2018
The People v. Alexis Sanchez
Issue before the Court: Whether the Appellate Division applied the wrong weight-of-the-evidence standard when it alternately looked to the “two-step approach” of People v. Bleakley “wherein the court must (1) ‘determine whether, based on all the credible evidence, an acquittal would not have been unreasonable[;]’ and (2) ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’” but also cited cases requiring a finding that the jury’s verdict be “manifestly erroneous or plainly unjustified” before it will overturn a conviction.
Held: While the Court, in a memorandum decision, affirmed the conviction upon finding that the Appellate Division had muddled its way to the correct standard, it nonetheless took the opportunity to advise the intermediate court that aspects of the legal standard that it had appeared to incorporate into its decision should not be followed.
CAL Observes: The Court correctly reminded the Appellate Division that it has de novo review power when assessing weight of the evidence, which means that it can substitute its own credibility determinations. There need be no finding of “manifest erro[r]” for it to do so.
Judge Wilson, in dissent, describes this principle nicely: “An appellate court’s obligation to ‘weigh the probative force of conflicting testimony and the relative strength of conflicting inferences’ is mandatory and nondelegable; it cannot be abdicated to the jury below, even in the exercise of the appellate court’s own discretion.” But, unlike the majority, Judge Wilson would remit the case to the fact-finding court for application of the clarified standard. This is undoubtedly correct. Just as the Appellate Division will not hesitate to remand cases for resentencing where it appears that the trial court misapprehended a defendant’s sentencing range, even if it arrived at a lawful result, remittal to the Appellate Division would ensure that, in Judge Wilson’s memorable words, the court of law is not left to “disassemble” the “soup” of the intermediate court’s decision “to find the meat.”
Decided on September 13, 2018
The People v. Omar Xochimitl
Issue before the Court: Whether the police, effectuating a warrantless arrest of the defendant inside his home, received voluntary consent to enter the apartment.
Held: On SSM, with two judges concurring, the court held that whether there was voluntary consent was a “mixed question of law and fact,” and –although whether there really was consent was “open to dispute” – the hearing court’s finding was supported by the record; hence, they affirmed. The majority deemed unpreserved the interesting issue in the case: whether the arrest was unlawful because the police went to defendant’s home with the intent of making a warrantless arrest.
CAL Observes: The two concurrers, Judges Rivera and Wilson, agreed in separate concurrences that the interesting issue was indeed unpreserved. They each urge, however, that an arrest by police is unlawful if effected with the intention of making warrantless arrest in the home. Their reasoning is laid out in their separate opinions in People v. Garvin, 30 NY3d 174 (2017). Would any trial-level attorney care to preserve this issue?
Decided June 28, 2018
People v. Mark Nonni; People v. Lawrence Parker
Issue before the Court: Does an O’Rama violation still result in a mode of proceedings error that does not require preservation, consistent with the longstanding precedent of the Court of Appeals?
Held: Yes. O’Rama lives.
In People v. O’Rama, 78 N.Y.2d 270 (1991) and its progeny, the Court of Appeals has repeatedly held that the court’s failure to provide notice of the specific contents of a jury note requires reversal regardless of preservation. In this case (CAL represented one of the co-defendants), the prosecutor asked the Court of Appeals to overrule this longstanding precedent.
The Court didn’t buy it. In a decision written by Judge Rivera (joined by Judges Fahey, Stein, and Wilson), the Court re-affirmed that while some jury-note errors (e.g., the failure to respond to a note), require preservation, the failure to provide notice of the actual specific contents of a jury note does not. Six judges ultimately agreed with this determination (Judge Garcia was the only Judge who would have overruled O’Rama).
The Court also reaffirmed its holding in People v Silva (2014) and People v. Walston (2014) that appellate courts cannot speculate that counsel may have received notice of the note’s contents “off the record,” thus warranting a “reconstruction hearing.” Instead, the majority confirmed that if the record does not establish that counsel had notice of the note’s contents, the remedy is reversal.
Three judges dissented (the Chief Judge, Judge Feinman, and Judge Garcia) from this reconstruction-hearing holding, arguing that when the record leaves open the possibility that counsel received notice off the record, a reconstruction hearing is permissible.
CAL Observes: Judge Garcia’s separate dissent, for the reasons stated in his dissent in People v. Morrison (another O’Rama case, argued and decided the same day as Nonni/Parker), bears mention. Judge Garcia argued that that preservation is required when counsel knows a note “exists.” In doing so, Judge Garcia imagined a mischievous—and fictional—defense lawyer who intentionally declines to learn a note’s contents in order to pocket an appellate claim. While some appellate judges apparently believe that these phantom lawyers exist, lawyers in the trenches tend to chuckle at such suggestions.
Judge Garcia also supported a reconstruction hearing, noting that “in People v. Cruz , we heard an appeal on an O’Rama issue after a reconstruction hearing had been held—a procedure that the presiding Chief Judge [Lippman] characterized as a ‘very useful exercise.’” Chief Judge Lippman’s sarcasm was clearly lost on Judge Garcia:
At the subsequently held ‘reconstruction hearing’ (really just a conversation between the court and counsel with some testimony from the court reporter), no one had any independent recollection of the events at issue, which had transpired some four years before. The court was of the view that the trial had been accurately recorded and, although he had no memory at all of the events in question, he thought it probable that he never received the jury note. . . . The record of this very useful exercise in hand, the Appellate Division resumed its consideration of defendant’s appeal. People v. Cruz (Lippman, C.J., concurring).
Fortunately though, the Chief’s wise warning wasn’t ignored by Judge Rivera, whose majority opinion clearly lays to rest any theory that reconstruction hearings are available in the O’Rama context. In closing the reconstruction hearing door once and for all, the Court of Appeals has enforced the basic rule that is hammered into lawyers’ heads the day they first appear in court: make a record.
Decided June 28, 2018
People v. William Morrison
Decided June 27, 2018
People v. Steven Meyers
Issue before the Court: Whether either the State Constitution, or CPL 195.20, requires a waiver of indictment, in addition to being signed by the defendant in open court in the presence of counsel, to be the subject of a judicial on-the-record inquiry of the defendant (as set forth in the model colloquy in the CJI).
Held: No. While the judge having an oral colloquy with the defendant per the CJI model colloquy is the “better practice,” it is not absolutely required. Indeed, under the State Constitution and the CPL, the judge does not even have to approve the waiver, nor would she have the power to disapprove one that meets the statutory requirements. There was a two judge dissent, written by Judge Rivera and joined by Judge Feinman.
CAL Observes: Judge Rivera expresses disappointment that the majority is not using the classic “knowing and voluntary” test for the waiver of important rights, which test always requires a judicial on-the-record inquiry But Judge Wilson, writing for the majority, says that the waiver of the grand jury indictment has “unique” requirements, so the classic “knowing and voluntary” test is not apt. Judge Feinman joining the dissent is interesting. Hmmm...
Decided June 26, 2018
People v. William Harris
Issue before the Court: Whether, under Herring v. New York, 422 U.S. 853 (1975), a criminal defendant has an absolute right to deliver a summation in a bench trial, notwithstanding CPL 350.10, which allows the trial judge in a bench trial in a local criminal court to “waive” summations.
Held: No holding on this. The Court reversed the conviction because the defendant, on trial for a B misdemeanor, ended up with 90 days in jail, thus triggering the Sixth Amendment right to counsel. The Court described Herring as (so far) applicable only to trials on indictments, even though the Herring ruling was not so limited. And in a footnote the Court expressly left open the “unpreserved” questions whether CPL 350.10 violates Herring where the defendant eventually received no jail time, or whether the court’s action violated CPL 170.10, which provides for the right to counsel in the local criminal court.
CAL Observes: Presumably, faced with the question whether to allow summations, a trial judge in a bench trial needs to parse out in advance whether, in the event there is a conviction, the judge intends to impose a jail sentence. If no, the judge can waive summations; if yes, then summations must be allowed. (Actually, we thought the trier of fact is not supposed to think about the sentence while guilt has yet to be determined.) Since the defendant was on trial for a misdemeanor, clearly he had the right to counsel at trial, regardless of what the sentence would end up being. The Court’s decision is nonsensical, even if the result –a reversal–was correct here. Can some trial attorney please preserve the issue as a constitutional question? Please?
June, 14, 2018
People v. Princesam Bailey
Issue before the Court: Whether the trial court erred in not conducting a Buford inquiry of a juror who interrupted defense counsel’s cross, told him that he was acting in an unacceptable manner, and threatened to leave the courtroom if he did not stop?
Held: We don’t know, since the Court did not reach the issue because of a purported lack of preservation.
CAL Observes: This decision was not about Buford, but about preservation. On one side are the stringent-appliers of the preservation rule (in criminal cases, anyway). These judges are in the majority on the current Court, and were in the majority here – in a decision penned by Judge Rivera. On the other side are the common-sense-appliers of the rule. The chief proponent of the latter is Judge Wilson (taking over this role from former Judge Robert Smith). He was joined in dissent by Judge Fahey – a vote coming seemingly out of left field. In response to the juror’s actions, the lawyer told the judge: “And I think based on her outburst, she not only put herself in the position where she should be removed, but I think she has poisoned the jury as well.” The lawyer said in the next sentence that the juror was “grossly unqualified.” Per the majority opinion, all the lawyer did was ask for a mistrial – which he was not entitled to, not a Buford inquiry and not the striking of the juror. Judge Wilson, quoting the above language, thought that the lawyer additionally preserved the issues of (a) whether the juror should be struck (a proposition that even the trial assistant agreed with) and (b) logically, whether an inquiry should have been made of the juror. Two big take-aways for trial lawyers: (1) “Whining” does not equal preservation, so if you want the judge to do something, ask her directly to do it. (2) Objections by the co-defendants’ attorneys – who did ask for these things but were not the appellants here – do not preserve an issue for the defense counsel who does not “join” her colleagues. One lawyer’s objection does not, by itself, preserve an issue for co-counsel. And we mean never.
Decided June 14, 2018
People v. Natascha Tiger
Issue: Is a claim of actual innocence cognizable under C.P.L. §440.10 following the entry of a guilty plea.
Factual Background: Ms. Tiger, a nurse, worked for the complainant, a severely disabled girl. While in Ms. Tiger’s care, the complainant suffered severe burns following a bath. Initially doctors diagnosed the complainant as suffering an extreme allergic reaction to an antibiotic creme; a few days later, a different doctor diagnosed the injuries as being consistent with scalding. During the investigation, Ms. Tiger had stated that she believed she had burned the child because the bath water was too hot. Charges of second-degree assault and endangering the welfare of a vulnerable person followed. Following plea negotiations, Ms. Tiger pleaded guilty to the lesser charge of endangering the welfare of a disabled person in exchange for a split sentence of five years probation concurrent with four months in prison. During the plea colloquy Ms. Tiger initially stated that she had tested the bath water and it did not feel “that hot.” Following further inquiry, she admitted making a mistake in determining the water’s temperature and that she was reckless in the care provided. There was no motion to withdraw the plea or appeal.
The complainant’s family brought a civil lawsuit and a jury concluded that the care provided by Ms. Tiger did not cause the complainant’s injuries. Ms. Tiger subsequently brought a C.P.L. §440.10 motion to vacate her guilty plea alleging ineffective assistance of counsel and actual innocence. She relied upon medical records which existed at the time of the plea suggesting the injuries were caused by an allergic reaction, her own affirmation asserting her innocence and that of a medical expert retained during the civil suit. In addition to asserting her innocence in contradiction of her plea statements, Ms. Tiger set forth that counsel had failed to retain a medical expert because of a lack of funds.
In opposing the motion, the prosecution argued that C.P.L.§440.10(1)(h) did not recognize an actual innocence claim in the context of guilty pleas. The motion court summarily denied the motion and the Second Department reversed. Relying on People v. Hamilton, 115 A.D.3d 12 (2d Dept. 2014), the Appellate Division held that Ms. Tiger’s guilty plea did not bar her from seeking such relief. Judge Garcia granted leave to the prosecution to resolve the question of whether a guilty plea forecloses an actual innocence claim under C.P.L. §440.10.
Held: A claim of actual innocence is not cognizable under C.P.L. §440.10 following a guilty plea. DeFiore, writing for the majority, relied on the recent 2012 enactment of C.P.L. §440.10(1)(g-1) establishing a claim of actual innocence in cases involving newly discovered DNA evidence where a defendant has pleaded guilty but can demonstrate a “substantial probability” that she is actually innocence. That the legislature had recently carved out this exception for DNA cases supported that an actual innocence claim did not exist in other plea contexts. The majority emphasized the finality interests at stake and the importance that “a voluntary and solemn admission of guilt in a judicial proceeding is not cast aside in a collateral motion.” The centrality of the plea process to the administration of justice was also emphasized. The court expressly left open the question of whether a defendant convicted after trial can raise a claim of actual innocence.
Garcia wrote a separate opinion, employing similar analysis, to emphasize that Ms. Tiger’s “freestanding” actual innocence claim was foreclosed regardless of whether she possessed other claims for relief under C.P.L. §440.10.
Judge Wilson, in an opinion joined by Rivera, opined that the majority had reached the issue of whether §440.10 recognizes an actual innocence claim following a guilty plea too soon, since all the Appellate Division’s decision did was grant a hearing into Ms. Tiger’s claims. Wilson also disagreed that a person who pleaded guilty but is innocent cannot vacate a guilty plea pursuant to C.P.L. §440.10 (1)(h) in the absence of DNA evidence. Emphasizing the centrality of protecting the innocent to the integrity of our criminal justice system and the prevalence of guilty pleas, Wilson would not bar relief on the basis of a guilty plea. “It is not impossible, as the majority seems to imply, to redress exceptional cases in which a clearly innocent person has pleaded guilty, and simultaneously to avoid eroding the fundamentals of our criminal justice system,” Judge Wilson observed.
CAL Observes: A collective groan from the defense bar could be heard when the court decided this case. The majority opinion, mean-spirited and exulting the interests of finality over justice, undercuts the criminal justice system’s central mission -- to protect the innocent while ensuring that only the guilty suffer the onus of criminal conviction.
While the decision bodes poorly for the recognition of any “free standing” claim of actual innocence, including ones following a trial conviction, in reality the decision’s impact will be limited. The vast majority of 440 motion do not involve claims of actual innocence, particularly in the context of guilty pleas. As Ms. Tiger’s case itself illustrates, claims that an innocent person was wrongfully convicted, almost invariably result from some breakdown in the process, such as the ineffective assistance of counsel or the suppression of exculpatory evidence. Still, the majority opinion is depressing for its willingness to categorically close the door to actual innocence claims following a guilty plea, something the State of Texas has refused to do.
Decided June 14, 2018
People v. Gary Thibodeau
Decided June 12, 2018
People v. Roque Silvagnoli
Issue: Was the defendant’s right to counsel violated where the detective investigating the defendant’s involvement in a homicide brought up the defendant’s pending drug case, on which he had counsel?
Held: No. The impermissible questioning was so “brief, flippant, and minimal,” that it was “discrete and fairly separable as a matter of law from the interrogation of defendant on an unrepresented matter.”
CAL Observes: The brief memorandum opinion reversing the Appellate Division on the People's appeal (like Henry, decided the same day) provides no facts, but the Appellate Division decision does. While Henry analyzed the question of “relatedness” between the represented and unrepresented matters, this case involved the second way that an interrogation on one matter may violate the right to counsel on the other: where, though the two matters are unrelated, the questioning on the represented matter is “designed to elicit statements on an unrelated matter” in which the suspect is not represented. See People v. Cohen, 90 N.Y.2d 632 (1997). The Second Department, while acknowledging that the reference to the drug charges was “brief and flippant,” found that it was not “in context, innocuous or discrete and fairly separable from the homicide investigation.” That court noted that the remarks regarding the pending drug case went to the defendant’s alleged participation in drug trade at the location of the homicide, and that such activity provided a motivation for the homicide. The questioning on the drug case was “intertwined with questioning regarding the homicide,” the Second Department found, requiring suppression. Plainly, the Court of Appeals was having none of this, and stopped the analysis short upon finding that the questioning itself was too brief to be of any real consequence in producing incriminating statements. The Court did not address whether the questioning, even if that, was nonetheless designed to elicit statements. We suspect that “brief and flippant” will find its way into future opinions declining to find counsel violations.
Decided June 12, 2018
People v. Bryan Henry
Issue Before the Court: Was interrogation of the defendant on the murder charge, for which he was not represented by counsel, prohibited owing to the entry of counsel on the marijuana charge on which he was earlier arrested and arraigned.
Factual Background: The defendant was arrested in a black Sonata with tinted windows for possession of marijuana. He was assigned an attorney and released on bail. The police then determined that the BlackBerry phone recovered from the floor of the car was the phone stolen in an earlier robbery of a tattoo parlor perpetrated by two masked men driving a black Sonata with tinted windows. Further, a homicide had taken place around that same time, where the masked shooter reportedly arrived and left in a black Sonata with tinted windows. Defendant was arrested for possessing the stolen phone and, after waiving Miranda rights, questioned about the robbery and murder. He made statements admitting he was the driver and identified the passengers. He was indicted on charges of murder, robbery, CPW, CPSP, and possession of marijuana.
Supreme Court suppressed his statements about the robbery, arguing they had been obtained in violation of his right to counsel, which had attached as to the marijuana charge, as the robbery and marijuana charges were “related” through the phone’s recovery during the marijuana arrest. Supreme Court did not suppress the statements regarding the murder. After his conviction for murder and other counts, the Appellate Division held that defendant’s statements regarding the murder charge should also have been suppressed. The People appealed.
Held: On this People’s appeal, the Court of Appeals reversed the Appellate Division, finding that its “relatedness” analysis, which guided the outcome, was wrong, both procedurally and substantively. After first briefly reviewing the law governing whether and when a suspect who is represented on one crime can be questioned about a different crime, the Court concluded that the Appellate Division had failed to consider whether the murder charge was sufficiently related to the marijuana charge, and there was no evidence that it was. The mere fact that a black Sonata was used in the commission of the murder and was the car defendant was driving when the police found the marijuana, did not “make the murder and marijuana charges ‘so closely related transactionally, or in space or time, that questioning on the [murder charge] would all but inevitably elicit incriminating responses regarding the [marijuana charge] in which there had been an entry of counsel.’”
The Court also criticized the Appellate Division’s procedural findings, in a rather complicated and confusing discussion of CPL 470.15.
CAL Observes: This case is a reminder of the complexity of the law around a suspect’s right to counsel during interrogations. A common scenario, illustrated in Henry, concerns police interrogations of a defendant suspected of committing a very serious crime, who has counsel on a much less serious crime. Does the defendant’s representation of counsel on the minor crime prohibit the police from questioning the defendant on the serious crime? Maybe, maybe not, and not here. The answer depends on a number of things, but chief among them is whether the two crimes can be considered “related.” A conservative court will obviously be less likely to find “relatedness,” though since Judge Wilson authored this unanimous opinion, it seems unlikely that the issue was a close one here.
Of particular interest is footnote 1, where Judge Wilson wrote that “a different rule applies” when the defendant “is in custody on a charge upon which the right to counsel has attached.” Then, the police “are prohibited from questioning the defendant on any matters, related or unrelated.” (citing People v. Burdo and People v. Rogers). As framed, Judge Wilson’s statement of the rule seems favorably broad, as not all “counsel attachments” have been considered equal under the law. Prior Court of Appeals caselaw has drawn a distinction between the actual “entry” of counsel, and the attachment of counsel that occurs by operation of law, as when an accusatory instrument is filed upon issuance of an arrest warrant. The footnote in Henry — whether intentionally or inadvertently — appears to blur that distinction, opening the door to broader right-to-counsel challenges when a defendant inculpates himself in a serious crime after being taken into custody on an arrest warrant for a minor infraction.
Decided June 7, 2018
People v Rafael Sanabria
Decided June 7, 2018
People v. Steven Berrezueta
Issue before the Court: Whether the knife in question was a “switchblade” knife within the statutory definition, so as to be a per se weapon, i.e. one of strict liability.
Held: Yes, but the majority opinion only says that it does, without explaining why.
CAL Observes: There was a long solo dissent by Judge Rivera, unusual for an SSM – in normal times. She points out that the statute defines switchblades as having a button “in the handle of” the knife which, when pushed, springs the blade out. The knife in question had a button “in the blade”, that is, it was not on the handle. The majority opinion dances around this distinction. Judge Rivera’s point was that, if the State is convicting someone of possessing a per se weapon with no mens rea, attention must be paid to the statutory definition, which this knife doesn’t meet. In this case, there was no question that the defendant used the knife only in the mailroom for his job. Another victim of DA Vance’s war on poor schlubs who buy these knives legally and have no way to know that they are criminals. Judge Rivera is right. Shame on the judges in the majority, hiding behind this “mem.”
Decided June 7, 2018
People v. William Rodriguez
Decided May 8, 2018
People v. Twanek Cummings
1) Whether the law-of-the-case doctrine precludes a substitute justice in a re-trial from overturning an evidentiary ruling of two prior judges, in the first trial and the re-trial.
2) Whether the evidence was sufficient to infer a pre-requisite to admission of an excited utterance statement, that the statement be based upon the personal observation of the declarant.
(1) Law of the case does not preclude a third trial judge from overturning an evidentiary ruling by two prior judges in that same case, absent a showing of prejudice resulting from that reversal; and
(2) A statement by an unidentified person is inadmissible as an excited utterance where there is no evidence from which a trier of fact can reasonably infer that the statement was based upon the personal observation of the declarant.
CAL Observes: This decision reversed an AD1 order (thanks to our own Susan Salomon!) affirming the trial court’s admission of a statement heard in the background of a 911 call by an unidentified person, under the excited utterance exception to the hearsay rule. During a 911 call made within five minutes of the shooting, someone in the background yelled out that “it was Twanek...” The defendant’s fingerprint was later found on the door of a vehicle from which the gunman had slipped away. No weapon was ever recovered, and the defendant was not identified in a lineup. At a first trial, the 911 call was excluded as inadmissible hearsay, and the jury deadlocked. At the re-trial, a new judge also disallowed the statement but she took ill, and a third judge then admitted the statement at the re-trial as an excited utterance. The defendant was then convicted.
(1) On the law of the case issue, the Court refused to apply a per se rule as to a substitute judge’s reconsideration of a prior judge’s evidentiary ruling. It held that whether to admit hearsay as an excited utterance is an evidentiary decision “left to the sound discretion of the trial court,”and since such decisions may be reconsidered on retrial, there is “no reason” to apply a different rule to a substitute judge within the same re-trial. The Court found it “notable” that the defendant did not claim reliance on or undue prejudice from the reversal of the ruling – leaving the door open that a showing of prejudice could be a basis for finding an abuse of discretion in future cases. Absent prejudice however, it looks like prior evidentiary rulings can be raised, at the least, again and again.
(2) On a happy note, the excited utterance ruling clarifies a requirement of that rule that can be helpful to our clients.
Both parties here agreed that the question of whether a declarant personally observed an event is normally a mixed question of law and fact not reviewable by the COA. The Court’s inquiry was therefore limited to whether there was support in the record for the trial court’s ruling here, and the Court found there was none.
The Court ruled that while the declarant can be an unidentified bystander, facts still must exist to establish personal observation. Here the declarant’s “bare conclusory statement” ... “contained no basis from which personal knowledge can reasonably be inferred.” Evidence that corroborated the defendant’s presence at the scene was rejected as irrelevant to whether there was personal observation by the declarant. The Court found no evidence as to whether the declarant saw anything, or whether he was just “parroting” what he had been told by others.
The Court found the error was not harmless, rejecting the defense due process claim but finding as a non-constitutional matter that the evidence was not overwhelming, and the 911 call made a difference. It also noted the prosecutor’s “heavy reliance” on the 911 call in summation.
Finally, in her concurrence, Judge Rivera questions the justification for the excited utterance exception to the hearsay rule at all, given the advances in psychology and neuroscience that demonstrate its weak foundation; that is, people’s “inability to accurately recall facts when experiencing trauma, and, in turn, to create falsehoods immediately.” After citing sources supporting her conclusions, Rivera notes that since the premise for the excited utterance exception was not challenged in this case, that challenge will have to wait for another day.
Decided May 8, 2018
People v. Akeem Wallace
Issue Before the Court: Whether the “outside of home or place of business” exception to Penal Law § 265.03(3), which proscribes possession of a firearm, applies to a “newer manager who ha[d] not been trained as an assistant manager” at a McDonald’s.
Held: Nope. The court chooses to construe the exception “narrowly.”
CAL Observes: The rule the Court devises in this case, with no source in the text of Penal Law § 265.03(3), essentially creates a class-based distinction: if you are someone with property rights or in upper management—a “merchant, storekeeper, or principal operator” of an establishment—you are protected from felony prosecution; if you are a middle manager or employee (however those terms are defined), you are not.
After acknowledging that “place of business” is not defined by the Penal Law, the Court looks to the history of this provision and of Penal Law § 400.00, which governs the licensing of guns and defines “place of business” as applying only to merchants and storekeepers. It then chooses to construe Penal Law § 265.03 together with Penal Law § 400.00, despite 265.03’s omission of the “merchant or storekeeper” language. Narrow construction to effectuate the Legislature’s interest in gun control is one thing, but the Court is making a somewhat arbitrary choice that disproportionately affects those who are without proprietary interest in the business or part of high-level management, who cannot avail themselves of this exception. As Judge Stein points out in her concurrance, the reasoning is a bit disingenuous, as who qualifies as a “merchant, storekeeper, or principal operator” is left unclear by the decision, which without basis “excludes individuals who control the day-to-day operations of a business, but lack a proprietary or possessory ownership.”
Decided May 8, 2018
People v. Matthew Kuzdzal
Decided May 3, 2018
People v. Sergey Aleynikov
Decided May 3, 2018
People v. Donald Odum
Decided May 3, 2018
People v. Kerri Roberts; People v. Terri Rush
Issue before the Court: Whether the language in the identity-theft statute, “assumes the identity of another person” is a discrete element that must be separately proved from, inter alia, “using personal identifying information of that other person.”
Held: The requirement under the identity-theft statute that a defendant assumes the identity of another is not a separate element of the crime
CAL Observes: Defendant Roberts attempted to use someone else’s credit card number, stolen from that other person, which Roberts had attached to a card with the name of a fictional person, to make a single purchase of sneakers in a sporting goods store. Under the 2002 identity-theft statute, a person is guilty of first- and second-degree identity theft “when [such person] knowingly and with intent to defraud assumes the identity of another person by presenting [themselves] as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby ... commits or attempts to commit [a felony]” (Penal Law §§ 190.79; 190.80, italics added ). The majority held that the italicized statutory language was not an element, but merely a summary or introduction to the three types of acts that violate the statute.
While the majority’s concern with identity theft is a valid one, rewriting criminal statutes by omitting statutory language included by the legislature is not the answer. As Judge Wilson points out in his dissent, the results of such judicial editing can be unpredictable and unwarranted. Judge Wilson points out the failings of the majority’s analysis, by among other things, offering a series of hypothetical examples of essentially innocent conduct that would satisfy the majority’s definition of identity theft. Similarly, suggesting that criminal statutes can be rewritten by treating statutory language as non-essential may have unexpected and negative results.
Decided May 1, 2018
People v. Daria N. Epakchi
Decided May 1, 2018
People v. Ricky D. Gates
Decided April 26, 2018
People v. Quinn Britton
Issue before the Court: Whether the judge, at a sex offender registration hearing [SORA] following defendant’s conviction of misdemeanor sexual abuse, erred in finding that the defendant engaged in sexual intercourse or “deviate sexual intercourse” despite the defendant’s trial acquittal of charges relating to this more serious alleged conduct.
Held: No. “His acquittal of such charges at his criminal trial does not foreclose the hearing court from finding, by clear and convincing evidence, that he engaged in such acts.” Additionally, the Court of Appeals held that the record, in this case, supported “the affirmed finding that defendant engaged in sexual intercourse, deviate sexual intercourse or aggravated sexual abuse.”
Note: This is a brief memorandum decision made on summary review. The Court cited to a prior case holding that an acquittal of criminal charges is not the equivalent of a finding of innocence, Reed v. State of New York, 78 N.Y. 2d 1 (1991), and acknowledged the different burdens of proof at trial and at the SORA hearing. People v. Headley, 147 A.D.3d 988 (2nd Dept. 2017). The Court, however, did not discuss the evidence in this case or explain how the prosecution had met its burden of proof at the SORA hearing.
In her detailed dissent, Judge Rivera agreed that “there may be cases in which there is clear and convincing evidence of the defendant’s sexual acts notwithstanding acquittal of the underlying charges,” 31 N.Y.3d at 1026, but believed that “this is not such a case.” Id. Stressing “the exacting nature” of the clear and convincing evidence standard, the judge went on to analyze the weaknesses in the prosecution’s case to support her dissenting vote.
Judge Rivera did not convince her colleagues in this case that the evidence was flawed. After all, her dissent reveals that the prosecution did not rest solely on the child complainant’s credibility. There was also evidence of prompt outcry to a brother and, even more significantly, the defendant admitted to the police that he had “perform[ed] oral sex” on the complainant. Moreover, the same judge heard the evidence at trial and sat at the SORA hearing. Similarly, in Headley, on which the majority relied, the defendant had admitted guilt to the Probation Department despite the jury’s partial acquittal.
On a different record, however, the defendant might prevail. Advocates at SORA hearing should continue to review the trial record carefully for signs of weakness that prevent the prosecution from meeting the clear-and-convincing standard. The jury’s acquittal is particularly persuasive when the SORA judge did not preside at trial and, therefore, has no independent impression of the evidence.
Decided April 3, 2018
People v. Spence Silburn
Issue before the Court: Whether the court denied appellant his right to represent himself by denying his request to proceed “pro se with standby counsel”; and whether appellant was required to provide pretrial notice to the prosecution of his intent to introduce his bipolar disorder diagnosis in his challenge the voluntariness of his statements to police.
Held: The court did not improperly deny appellant’s request to proceed pro se because that request was conditioned on proceeding with standby counsel; and defendant was required to give notice of his intent to introduce evidence of his psychiatric diagnosis.
CAL Observes: Resolution of the right-to-proceed pro se issue devolved to the question of whether appellant made an unequivocal request, when defendant also asked for the assistance of standby counsel. The majority ruled that, because appellant’s request to proceed pro se was followed shortly thereafter by a request for standby counsel, his request to proceed pro se was not unequivocal. Because the request was not unequivocal, the majority ruled, the trial court was justified in ignoring it without further inquiry, as a defendant in New York has no right to standby counsel.
In his dissent, Judge Wilson highlights the unfairness of the majority’s ruling with a hypothetical taking place in a fast food restaurant, suggesting that a customer that orders a hamburger, and then later adds fries to his order, has placed an unequivocal request for a hamburger, regardless of whether fries are on the menu or otherwise unavailable (Judge Wilson returns to his hypothetical in his dissent in People v. Bailey, 31 N.Y.3d 144 (2018), using it to explore the unfairness of the majority’s application of the preservation rule there). At a minimum, any ambiguity in the order warrants a follow-up question of whether the customer still wanted the hamburger. In the right-to-proceed pro se context, Judge Wilson observed, “although a ‘lack of knowledge of legal principles’ and ‘unfamiliarity with courtroom procedures’ cannot bar defendants from exercising their right to self-representation, the majority’s decision uses those exact shortcomings to prevent [defendant] from requesting to exercise his right.”
Judge Wilson’s conclusions about the unfairness of the majority’s application of preservation rules appear entirely correct. But one is left to wonder whether exploration of the precision required to preserve an issue by the majority of the current Court in a dissent, furthers the cause, or merely gives appellate prosecutors more precedent to rely upon.
Judge Rivera dissented separately to address the importance of standby counsel for vindicating a defendant’s right to proceed pro se, suggesting that the trial judge’s policy of denying all requests for standby counsel is a policy that should no longer be countenanced.
Decided March 29, 2018
People v. Teri W.
Decided March 27, 2018
People v. Mark Boyd
Decided March 27, 2018
People v. Rafael Perez
Decided March 22, 2018
People v. Michael Johnson
Decided March 22, 2018
People v. Nicholas Brooks
Decided March 22, 2018
People v. Aladdin Sanchez
Decided February 15, 2018
People v. Reginald Wiggins
Issue Before the Court: “[H]ow long is too long” for a defendant to wait for trial?
Held: The Court considered Mr. Wiggins’s constitutional speedy trial claim, finding that the prosecution may not seek to delay a trial indefinitely so that they might pursue evidence that could strengthen their case, even assuming a good-faith belief that the evidence would be useful. In this case, over six years at Rikers was too long.
CAL Observes: The Court was undoubtedly motivated by how extreme the delay was here, not to mention a number of fairly unique factors, such as Mr. Wiggins’s age (16 at the time of the incident and arrest); and the two-and-one-half years the prosecution spent trying to get a co-defendant to cooperate against him in this homicide case, which included the declaration of three mistrials in the co-defendant’s case. It also could not likely have been oblivious to the context in which the case was occurring—one of much-criticized delays in the New York City courthouses, the conditions at Rikers Island, especially for young people, and a growing chorus of voices for bail reform to avoid precisely the sort of prejudice and delays that occurred here—as the amici here pointed out.
Nonetheless, the case is in many ways a straightforward application of the Taranovich factors, balancing the various considerations to arrive at its conclusion (though the dissent would reach a different outcome, notwithstanding its acknowledgment that the delay was extraordinary and Mr. Wiggins’s incarceration at age 16 resulted in serious prejudice, as it would weigh the gravity of the offense heavily and believed there was a disputed question as to whether the defense “acquiesce[d] in the delay”). That said, a few things are of note. First, the Court finds that the People did not establish that Mr. Wiggins would be held on unrelated charges alone—arising out of a “jailhouse altercation”—if he were not facing the instant charges. Second, the Court reaffirms long-standing state and federal law that defendants need not show specific prejudice as opposed to just the inherent generalized prejudice that inheres when someone is incarcerated and there is a long delay.
Also of note to Court of Appeals practice is that the Court disregarded the People’s calls for it to treat the reason-for-delay question as a mixed one of law and fact. Instead, it determined that this was a question of whether their proffered reason was a sufficient one as a matter of law.
February 15, 2018
People v. Casimiro Reyes
Decided February 13, 2018
People v. Jude Francis
Issue before the Court: Whether a defendant’s prior youthful offender [“YO”] adjudication may be considered in determining his or her risk-level designation under the Sex Offender Registration Act [“SORA”].
Held: Yes. The Court held that the Criminal Procedure Law specifically provides that [Department of Corrections and Community Supervision] employees, “of which the Board [of Examiners of Sex Offenders] is composed,” may have access to YO records. 30 N.Y.3d 737, 742 (2018). Moreover, while a YO adjudication is not a “conviction,” it is an “offense,” and the Legislature also directed that the Board “take into consideration a sex offender’s criminal history factors when assessing risk level, including ‘the number, date and nature of prior offenses.’” 30 N.Y.3d at 746, quoting Correction Law § 168-l.
CAL Observes: To be clear, New York State, unlike other jurisdictions, does not require Youthful Offenders to register as sex offenders. This case involves someone who committed the sex offense as an adult [though only age 19] but he had a prior Youthful Offender adjudication for possession of stolen property. For that prior felony conviction, he was scored 25 points under factors 9 and 10 of the Board’s risk assessment instrument - which made the difference between a high and medium risk level.
Despite affirming, the Court did acknowledge both prior case law and “copious scientific data supporting the argument that young people who commit crimes are unlikely to reoffend.” 30 N.Y.3d at 750. However, with regard to the defendant’s argument that “science in fact disproves the Board’s conclusion that youthful acts are indicative of a risk to reoffense, and, as a matter of law, the [Board’s] Guidelines violate SORA,” the Court held that the defendant “failed to develop a record reviewable by the SORA court with an opportunity for the Board to respond. Thus, that claim is not properly before us.” The Court appears to have left a door open.
A similar claim regarding a youth’s risk of reoffense may be resolved next term in People v. DelaCruz, 161 A.D.3d 519 (1st Dept. 2018), where the First Department rejected the defendant’s argument that due process bars requiring a 16-year-old convicted as an adult to register for life (with a Level 3 high risk SORA adjudication). The Court stated: “Although defendant and amici raise substantial arguments, they have not established that any aspect of either the applicable statute or the risk assessment instrument is unconstitutional.” The defendant has appealed “as of right” to the Court of Appeals, under CPLR § 5601.
Decided February 13, 2018
People v. Douglas McCain; People v. Albert Edward
Decided February 8, 2018
People v. Dennis O'Kane
Decided February 8, 2018
People v. Joseph Sposito
Decided December 19, 2017
People v. Dwight Smith
Decided December 14, 2017
People v. Otis Boone
Issue Presented: Whether a defendant in an identification case, where the defendant and identifying witness appear to be of different races, is entitled to a charge on the potential cross-racial effect on that identification.
Holding: Yes, when requested, unless the trial court determines that the identification of the perpetrator is not in dispute. When applicable, the court is required to charge: (1) that the jury should consider whether there is a difference in race between the defendant and the identifying witness; and (2) if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of a different race then their own race and (b) whether the difference in race affected the accuracy of the witness’s identification.
CAL Observes: This was a 5-judge majority opinion written by Judge Fahey, with a concurrence by Judge Garcia joined by Judge Stein, with Judge Wilson not participating.
In these two consolidated single eyewitness cases where there was a white victim and a black perpetrator, the Court of Appeals rejected the reasoning of the court below that the defense must call an expert witness or cross-examine the eyewitness about the cross-racial effect in order to get a charge on this factor. Recognizing that mistaken identification is the single greatest cause of wrongful convictions in this country, the Court cited to recent scientific studies (and case law) on the effect of cross-racial identification in particular in increasing the unreliability of identifications, despite juror belief otherwise, and despite the certainty of the witness’s identification.
Because of these recent research developments, the Court distinguished this factor from the general expanded identification charge at issue in People v. Whalen, 59 N.Y.2d 273 (1983). In Whalen, the Court held such an expanded charge, while recommended, was discretionary. The concurrence objected that, as with Whalen, whether to charge the cross-racial effect should also be a matter of discretion for the trial court. But the majority disagreed, and a cross-racial charge is now required when requested except where a trial court finds, as a matter of law, that identification is not at issue.
Boone may hopefully signal a shift in the Court’s willingness to look at other identification factors that have been recognized within the scientific community, such as the lack of correlation between a witness’ confidence and the accuracy of his or her identification, and the potential effect of post-event information on eyewitness testimony, as discuss ed in People v. LeGrand, 8 N.Y.3d 449 (2007).
Decided November 21, 2017
People v. Leroy Savage Smith
Issue Presented: Whether a trial court may summarily deny a request for new counsel on the eve of trial, or must make a minimal inquiry under People v. Sides (75 NY2d 822), where defendant alleges ineffective assistance of counsel as the basis for the substitution. Although its opinion did not include the defendant’s specific allegations, defendant said his Onondaga County 18-B attorney failed to contact any of the exculpatory witnesses he named or do any investigation into the assault where he claimed self-defense. Defendant also said that his attorney told him that there was no money to hire and investigator to do so, thus implicating Hinton v Alabama (571 US __; 134 S Ct 1081 ). Despite such allegations, the Fourth Department, citing People v Porto (16 NY3d 93) found that Mr. Smith “failed to proffer specific allegations of a seemingly serious request that would require the court to engage in a minimal inquiry.”
Held: The Court simply “agree[d] with the defendant that the trial court failed to adequately inquire into his “seemingly serious request” to substitute counsel.” Without mentioning any of the facts, if thus held that the trial court abused its discretion in conducting no inquiry.
CAL Observes: Neither the Fourth Department nor the Court of Appeals mentioned any of the defendant’s specific allegations in coming to opposite conclusions, thus providing future litigants with no insight as to what specific complaints a defendant might make to trigger the need for an inquiry. Both courts did this on purpose (see the Webcast or Transcript of the October 12, 2017, oral argument on the Court’s website). The idea that trial courts in Onondaga County will not appoint experts for indigent defendants – the claim that got the top court’s attention – was too explosive to put on paper. (until now.)
Decided November 21, 2017
People v. Joseph W. Kislowski
Issue Presented: Kislowski was determined by the lower court to have violated the terms of his probation which specified that he was not to associate with convicted criminals. The specification cited to four dates on which he had contact with "Angela Nichols" --a former girlfriend with whom he shared a dog. The contact related to four times he had arranged to walk the dog. Nichols had a DWI misdemeanor conviction.
The Third Department found that the specifications satisfied the provisions of C.P.L. section 410.70(2) which requires that a statement be filed with the clerk of the court setting forth the condition violated and a reasonable description of the time, place and manner in which the violation occurred. The purpose of this provision is to provide the defendant with a full opportunity to prepare a defense. During his arraignment on the charges, Kislowski asked the court "you're talking about the person who owns the dog, a former girlfriend?" A majority of the Appellate Division believed this question demonstrated adequate knowledge of the charges to mount a defense.
The dissent disagreed, finding the specifications facially inadequate and not cured by the questions posed at arraignment because the lower court never clarified the nature of the charges sufficiently to satisfy the statutory mandate.
Held: The Court of Appeals adopted the reasoning of the dissent, holding that the VOP petition which alleged four dates of contact with a named person did not comport with the statutory requirements of providing the time, place and manner of the violation and was not cured by Kislowski's questions to the court posed during the arraignment.
CAL Observes: Undoubtedly the sympathetic facts here impacted the outcome. A rare win for the defense in this context alleging lack of adequate notice to have a full opportunity to mount a defense. While decided in the VOP context, the reasoning here is potentially helpful for other facial ufficiency challenges and should be kept in mind for our Appellate Term practice
Decided November 21, 2017
People v. Phillip A. Dodson
Issue Presented: Whether a court must assign new counsel to a defendant that asks for on after a guilty plea, but before sentencing, and wants advice about whether he should move to withdraw his plea.
Held: Where a defendant asks for new counsel following a guilty plea to assess whether he should move to withdraw his plea, and supports that request with “specific allegations regarding counsel’s performance,” the court must grant that request.
CAL Observes: This brief memorandum decision is more important than it looks, for two reasons. First, the Court for the first time endorses a defendant’s right to a new attorney to assess whether to move to withdraw a guilty plea. Seasoned appellate practitioners know that a pre-sentencing request for new counsel, where a defendant has a change of heart about his decision to plead guilty, is not uncommon. This decision recognizes defendant’s right to a new attorney to assess whether he has grounds for plea withdrawal.
Second, while the Court of Appeals did not specify what “specific allegations” Dodson made about counsel’s performance that triggered his right to a new attorney, the parties briefs reveal that Dodson did not say much. At sentencing, per the District Attorney’s brief, Dodson told the court that he needed a new lawyer because his attorney did not want to represent him, he wanted an attorney who would tell him his chances on not such a “negative level,” and wanted a lawyer who was “more of a straight shooter.” These allegations, the Court found, were specific enough to warrant the substitution of counsel.
Decided November 20, 2017
People v. Marlo S. Helms
Issue Presented: Validity of an out-of-state conviction – a Georgia burglary – for predicate sentencing purposes.
Held: Valid, even under New York’s “strict equivalency test.” Although the Georgia statute did not on its face require that the person “knowingly” enter or remain in the dwelling, other incorporated statutes and case law from Georgia established that “knowingly” was an element of the offense. The court reaffirmed its earlier holdings that reference to out-of-state statutes and case law is permissible in determining the scope of the foreign statute.
CAL Observes: This represents one of the only times that the Court of Appeals has upheld the use of an out-of-state conviction. Despite that, litigants should be wary of the use of any out-of-state predicate as few can pass the “strict equivalency test.” Even foreign burglary statutes will remain subject to challenge as states other than Georgia do not require that the entry be done “knowingly” and, perhaps more significantly, define “building,” “dwelling,” and “offense” more broadly than New York. As long as there is a theoretical way to violate the foreign statute that would not be a felony (or violent felony) under New York law, then predicate sentencing should not be permitted.
Notably, this case reaffirmed People v. Jurgins, 26 N.Y.3d 607 (2015), a leading case on consideration of out-of-state predicates, but did not address the key open issue in Jurgins regarding the distinction between “criminal acts required by a penal statute” and “the various ways in which the statutory crime may be committed.” Understanding that distinction will be critical in determining the validity of many out-of-state convictions.
Decided November 20, 2017
People v. Mario Arjune
Issue Presented: Whether a writ of error coram nobis, alleging ineffective assistance of counsel depriving a defendant of his right to appeal, lies against trial counsel for - - after filing a notice of appeal - - failing to advise his client about his right to appeal or explain how to get appellate counsel assigned, thus resulting in the eventual dismissal of the appeal for failure to prosecute. (Here, retained counsel filed a notice of appeal on behalf of his intellectually disabled and now-indigent client, but did nothing more - he did not advise his client of his right to poor person relief or to counsel, nor explain how to go about obtaining either, and he did not advise him of the benefits of appealing and consequences of failing to do so. When the People moved to dismiss for failure to perfect, counsel neglected to take any action although he had been served with their motion and thus must have known the appeal would likely be dismissed.)
Held: By a 5 to 2 vote, there is no right to counsel under the 6th Amendment or the State Constitution, to assist an indigent defendant in preparing a poor person application to get counsel assigned to represent him on appeal. Once a notice of appeal is filed, retained or assigned trial counsel has no constitutional obligation to assist the defendant, and may constitutionally do nothing. In dissent, Judge Rivera pointed out, correctly, that the representation fell below what was required by Appellate Division rules in every department and relevant bar association standards. Counsel was thus ineffective, in the dissent’s view. Judge Wilson joined that opinion and also separately dissented on the ground that, in his view, counsel is required under current United States Supreme Court case law to assist the defendant in this regard.
CAL Observes: According to the dissents, the majority decision is poorly-reasoned, mean-spirited, and retrograde. We see no reason to disagree. Although a lawyer who abandons a client this way has committed malpractice, violated Appellate Division rules, and violated every relevant bar association standard – and may be subject to disciplinary action – he has not violated State or Federal right-to-counsel provisions, according to the majority. The defendant thus has no recourse on a writ of error coram nobis to revive his appeal. The tenor of this decision is consistent with the dismissive posture that the Court has historically taken with regard to the right to effective assistance of counsel on a criminal appeal.
Decided November 16, 2017
People v. Roberto Estremera
Issue Presented: Whether a defendant need be present at a “resentencing” which does not “adversely affect” him.
Held: Yes, of course he does. A defendant “must be personally present at the time sentence is pronounced.” C.P.L. § 380.40.
CAL Observes: The Court seemingly didn’t struggle with this one, though the context of the “resentencing” makes it an interesting case. This is yet another case stemming from the post-release supervision (PRS) debacle, where for years trial courts failed to inform defendants of PRS at the time of the plea, see People v. Catu, 4 N.Y.3d 242 (2005), or to pronounce the term of PRS at the time of sentencing, see People v. Sparber, 10 N.Y.3d 457 (2008). Here, at the Sparber “resentencing,” the court denied the defendant’s Catu motion to vacate the plea and, pursuant to Penal Law § 70.85, let stand the original sentence without PRS – “No resentence,” the court announced. The Court found that so-termed “No resentence” to, in fact, be a “proceeding at which ‘sentence is pronounced,’” such that defendant had a right to be present, even though his sentence remained unchanged and even though he was, arguably, not adversely affected by that proceeding.
The ruling is interesting in light of the Court’s prior decisions, essentially crafting a PRS/ Sparber proceeding exception to many resentencing rules. See, e.g., People v. Lingle, 16 N.Y.3d 621 (2011) (holding that a court may not reconsider the length of the incarceratory term of a sentence at a Sparber/ Penal Law § 70.85 proceeding); People v. Boyer, 22 N.Y.3d 15 (2013) (holding that the date of the original sentencing, not the date of the Sparber proceeding controls for predicate sentencing purposes). If presence is required at a Sparber proceeding, it must be required anytime the sentence is changed/ affected whether for a defendant’s benefit or whether the effect is no change
Decided November 16, 2017
People v. Stanley Hardee
Issues Presented: Mr. Hardee raised two related car-stop issues:
1. Whether there was any record support for the trial court’s finding that there was (1) a substantial likelihood that the car contained a weapon or (2) an actual and specific danger to police where Mr. Hardee had been removed, frisked, and moved to the back of the car, and where no additional facts took this scenario outside the People v. Torres rule. 74 N.Y.2d 224 (1989).
2. Whether the traffic infraction and Mr. Hardee’s nervous behavior failed to furnish the requisite reasonable suspicion to justify the protective car search.
Held: In a brief memorandum decision, the Court found that whether there was a “substantial likelihood” of a weapon in the car that presented an “actual and specific” danger to the officers was a mixed question of law and fact that it had no power to decide. Therefore, the findings of the Appellate Division, for which the Court found record support, stood.
CAL Observes: The Court was split, to the point that two rounds of argument were called for to ultimately decide the issue. This split revolved around not only the merits but also something that has motivated much of the Court’s recent jurisprudence: the question of whether it has jurisdiction to decide an issue or whether cases will be determined on threshold questions such as preservation or mixed-question rules. Rather than reaching the merits, the Court has disposed of many cases—including this one—at the threshold.
Animating the dissent here was that the Court had the obligation—and the authority—to determine whether the People had proffered enough to meet the minimum standard for legal police conduct. Here, Judge Stein, writing for herself and two others, answered no.
The undisputed facts, as recounted by the dissent, were as follows. Three officers had stopped Mr. Hardee for driving over the speed limit and changing lanes without signaling. He admitted having open alcohol in the car and appeared “hyper.” In addition, Mr. Hardee looked around his car, including over his shoulder into the back seat, and at the officers. They requested that he step out of the car, and he peacefully complied after initially refusing. Though Mr. Hardee appeared nervous, he cooperated during the frisk, which yielded nothing, and when the officers asked him to move to the back of the car, where two officers guarded him. When he looked back at the car twice, he was handcuffed. Meanwhile, the third officer asked the passenger to step out, and she was moved to the back of the car too. That officer, before even realizing that Mr. Hardee was being handcuffed, went into the backseat and retrieved a bag from which he extracted a gun.
Reviewing the Torres rule and its applications, the dissent concluded that only where a defendant had evinced a willingness to harm others and attempted to hide something was the search justified. Mr. Hardee’s case contained no facts establishing these plus factors. Nor, for that matter, was there reasonable suspicion to justify his search in the first instance. The effect of the majority deferring to the lower courts’ findings was to unjustifiably broaden what was meant to be a limited exception to the rule that cars cannot be searched absent probable cause.
Decided October 24, 2017
People v. Brian Novak
Issue before the Court: Whether a due process violation occurs when the sole judge deciding a criminal defendant’s appeal as of right is the same judge who convicted the defendant after a bench trial. (After convicting the defendant in City Court, the judge was elected to County Court.)
Held: Yes. Although Article VI of the State Constitution does not explicitly bar this scenario, recusal was nonetheless required as a matter of due process. The case was sent back to County Court for a de novo appeal.
CAL Observes: This kind of scenario could only happen upstate. Interestingly, until 1961, when article VI of the State Constitution was revamped, this scenario was explicitly disallowed. In the 1961 revamp, this language was dropped–inadvertently according to the Novak decision. See footnote 1. Perhaps if there’s a constitutional convention they could remember to put the language back in. No fireworks here, but what if the newly-elected appellate judge was just one in an appellate panel of three or four or five? BTW, this was Judge Feinman’s first authored opinion.
Decided October 24, 2017
People v. Sean Garvin
Issues before the Court: (1) Whether a warrantless arrest of a suspect in the doorway of his residence is permissible under Payton, provided that the suspect has voluntarily answered the door and the police have not crossed the threshold. (2) Whether New York’s discretionary persistent felony offender statute violates Apprendi.
Held: (1) By a 5 to 2 vote, such a warrantless arrest is permissible. (2) By a 6 to 1 vote, the discretionary persistent statute does not violate Apprendi.
CAL Observes: (1) In her majority decision, Judge Stein stated that the Court was merely adhering to its prior rulings that, so long as the defendant was merely between the door jambs of his residence’s threshold, no Payton violation could occur as the defendant is not inside his home. In a dissent joined by Judge Rivera, Judge Wilson stated that the rule should be that Payton is violated, even if the suspect does actually cross the threshold, if the sole reason the police went to defendant’s home was to arrest him without a warrant–a ploy which should be discouraged since it allows the police to circumvent the attachment of the right to counsel (which would attach with the issuance of the warrant). In a separate dissent, Judge Rivera would have held that a defendant has a privacy interest in the common hallway of a two-family residence, as was the case here. (2) As to the Apprendi issue, Judge Fahey was the lone dissent. He flat out described the Court’s previous rulings on this issue as flawed and contrary to Supreme Court precedent. Most of those previous rulings provoked dissents by judges no longer sitting. Perhaps the insertion of this dissent will motivate the United States Supreme Court to finally grant a cert petition challenging New York’s law; previous efforts have been unsuccessful.
Decided October 24, 2017
People v. John Andujar
Issue before the Court: VTL 397 makes it a misdemeanor for a non-peace-officer to “equip” a motor vehicle with a device that is capable of intercepting police radio frequencies. Does the prohibition apply to a freestanding device in the driver’s pocket?
Held: Yes, by the Court’s 6 to 1 vote. This is an issue of statutory construction. Consulting various dictionaries to interpret the plain language of the statute, the majority decided the word “equip” did not imply the need for physical attachment to the vehicle.
CAL Observes: Although the majority states that they were interpreting the plain language of the statute, other parts of the opinion indicate that they were looking mainly to the interpretation effectuating the intent of the legislature, which was to keep police radio frequencies from being intercepted by civilians. In her lone dissent, Judge Stein stated that the word “equip” plainly requires an attachment to the vehicle. Although she concedes that the majority’s interpretation “arguably effectuates the general purpose” of the VTL, she also cogently notes that the statute’s ambiguity could also make it difficult for the average citizen to decide between what is criminal and what is allowed. At least the Court wasn’t trying to decide what the meaning of the word “is” is.
Decided October 19, 2017
People v. Peter Austin
Issue Presented: Whether appellant’s Sixth Amendment right to confrontation was violated by the introduction of DNA evidence through the testimony of a witness who had not performed, witnessed, or supervised the generation of the DNA profiles.
Held: The Court unanimously held that the court violated appellant’s right to confront the witnesses against him by permitting an OCME criminalist to testify about DNA testing and comparison evidence produced by others after appellant was under arrest without calling any witness who personally performed, supervised, or observed that testing.
CAL Observes: The majority opinion was a straightforward application of the Court’s recent opinion in People v. John 27 N.Y.3d 294 (2016). The DNA testing and comparison results were testimonial, violating the Confrontation Clause, because the DNA was tested and the reports were prepared after Austin had been accused. The results were inadmissible through the criminalist offered by the People, because he had not prepared, witnessed, or supervised the generation of the numerical DNA profile.
In a concurring opinion, Judge Garcia did not contend otherwise. Instead, Judge Garcia pitched Austin as a vehicle for overruling John in the United States Supreme Court (Slip Op., concurring opinion at 2) ( “while the procedure used here -- an expert relying on work performed by others but not admitted into evidence -- mirrors the facts of Williams, our holding in John compels a different result). While Judge Garcia is correct that Austin’s facts have some significant parallels to Illinois v. Williams, 567 U.S. 50, 132 S.Ct. 1221 (2012), he’s incorrect that the rules set down by the Supreme Court in Williams, would compel a different result than reached by the Court in Austin.
The Williams plurality found the admission of DNA test results did not violate the Confrontation Clause for two reasons. Both would have independently excluded the DNA-test-results evidence linking Austin to the crime scene here. First, the Williams Court found that, because the DNA-results report was not entered into evidence, but only referred to by a DNA expert, the test results had been not offered for their truth, and therefore did not violate the Clause. The Court cited to the Illinois rules of evidence allowing an expert, in a non-jury trial, to “base an opinion an opinion on facts that are ‘made known to the expert at or before the hearing.” Williams, 567 U.S. at _, 132 S.Ct. at 2224. Because the report results were not admitted for the truth of the matter asserted, the evidence did not violate the Clause, since the results of the reports were only admitted as a basis for the expert’s conclusion that the DNA found on the weapon matched the defendant’s. New York law, however, does not permit such basis testimony. People v. Goldstein, 6 N.Y.3d 119, 127 (2005); John, 27 N.Y.3d at 306; Slip Op. at 16 (opinion testimony based on out-of-court statements inadmissible unless underlying statement is admissible); see, Williams, _ U.S. at _, 132 S.Ct. at 2269 (Kagan, J., dissenting)(citing Goldstein and other sources describing the idea that basis evidence comes in for some reason other than its truth as “factually implausible,” “nonsense,” and “sheer fiction”). Here, when the criminalist testified that he’d looked at the DNA profile comprising appellant’s DNA profile, and concluded that it matched the profile compiled from the scene, the criminalist was introducing the underlying test results for their truth.
Second, the Supreme Court found that the DNA-test-result evidence did not violate the Clause because the test had not been prepared to accuse an identified suspect, but instead to “catch a dangerous rapist who was still at large.” Williams, 567 U.S. at 84. The test results were pre-accusatory, because they were prepared before Williams was identified as a suspect. In Austin, Judge Garcia acknowledged that the DNA test was performed after Austin had been identified as a suspect and was done for the purpose of proving his guilt (Slip Op. at 3). But Judge Garcia contends that, because the accusatory test was preceded by a CODIS match, the post-accusatory report results entered into evidence through the criminalist were merely confirmatory of the prior CODIS match. Judge Garcia would create an exception to the classification of post-accusatory testing results as testimonial where the results confirm the results of a prior pre-accusatory test.
Creating a confirmatory exception to the Clause would be contrary to its purpose. That the DNA criminalist in Austin was aware that there had been a pre-arrest DNA profile in the CODIS database and that that profile connected Austin to the crime scene did not render the post-arrest DNA profile non-testimonial. That Austin’s CODIS profile alerted authorities that it might be his blood left behind at the two crime scenes made the subsequent testing more accusatory not less, and the post-arrest profile more testimonial than if there had been no prior profile from appellant suggesting he had been present at the site of the burglaries.
If the facts in Austin are judged solely by the rules laid down by the plurality opinion in Williams, the criminalist’s testimony about the post-arrest DNA test results would have violated the Confrontation Clause.
Decided October 19, 2017
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Decided October 17, 2017
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