Eye On Eagle

Most Recently Decided Cases

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Decided on November 27, 2018
The People v. Damian Jones
Decided on November 27, 2018
The People v. Saylor Suazo
Decided on November 20, 2018
The People v.Tamarkqua Garland
Decided on November 20, 2018
The People v. Rodney Watts
Decided on November 20, 2018
The People v. Rohan Manragh, Jr
Decided on October 23, 2018
The People v. Steven Baisley
Decided on October 23, 2018
The People v. Jakim Grimes
Decided on October 16, 2018
The People v. Raymond Crespo
Decided on October 11, 2018
People v. Marvin Drelich
Decided on September 13, 2018
The People v. Alexis Sanchez
Decided on September 13, 2018
The People v. Omar Xochimitl
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 [2010], 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
Issues Presented:
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.  
 
Holding:
(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[3]; 190.80[3], 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.”
 
CAL Observes:
 
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 [2014]).  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
People v. Vilma Bautista
Decided October 19, 2017
People v. James L. Carr
Decided October 17, 2017
People v. John R. Simmons
Decided October 12, 2017
People v. Phillip Wright
Decided October 12, 2017
People v. Ross Campbell
Decided September 7, 2017
People v. Gregory Lee
Decided September 5, 2017
People v. Douglas R. Every
www.appellate-litigation.org