Criminal Law Update October 2019

Criminal Law Update October 2019

Course #CRM0358 (Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Hybrid Accreditation for September 2, 2020, through December 31, 2021

This Course Is Appropriate for Experienced Attorneys

Areas of Professional Practice: 1 CLE Credit Hour

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

This course organizes summaries of decisions by the New York State appellate courts (Appellate Division and Court of Appeals) released between October 1, 2019 and October 31, 2019 which address issues in “Criminal Law.” Similar 1/2-to 1-hour CLE courses are continuously being submitted for approval to the NYS CLE Board for each month from January 2019 to the present, to provide readers with CLE credit simply for keeping up to date with the latest appellate decisions.

The “Criminal Law” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly pamphlets which are accessed in the “Update Service.” The monthly pamphlets comprise the written materials for these monthly CLE courses. A link to the written materials for this course (“Criminal Law Update Pamphlet October 2019”) is provided below.

As you listen to the course, you will hear a verification code. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification code, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey” (the CLE Board requires that I collect and preserve the Evaluation Surveys). Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 1 credit-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the links below for the written materials (“Criminal Law Update Pamphlet October 2019”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

The media player for this course is at the bottom of the page.

Criminal Law Update Pamphlet October 2019

Criminal Law Update October 2019 Attorney Affirmation

Criminal Law Update October 2019 Evaluation Survey

Topics Covered in the “Criminal Law Update October 2019” Course Are Described Below (the podcast may not address every case in the written materials); Page Numbers Refer to the Written Materials, i.e., the “Criminal Law Update Pamphlet October 2019”

APPEALS.

A DEFENDANT WHO PLEADS GUILTY FORFEITS THE RIGHT TO APPEAL THE DENIAL OF A SPEEDY TRIAL MOTION; HERE, BECAUSE THE COURT ERRONEOUSLY TOLD DEFENDANT HE WOULD BE ABLE TO APPEAL, THE DEFENDANT MUST BE GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEA (SECOND DEPT). 8

APPEALS.

THE APPEAL OF AN UNPRESERVED ISSUE DID NOT PRESENT A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS, THREE JUDGES DISSENTED (CT APP). 9

ARREST.

ALTHOUGH THE COMPLAINANT IDENTIFIED THE DEFENDANT FROM A PHOTO ARRAY IN A PROCEDURE CONDUCTED BY A POLICE OFFICER, THERE WAS NO PROOF OF THE BASIS FOR DEFENDANT’S ARREST BY ANOTHER OFFICER, THEREFORE DEFENDANT’S SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). 9

ASSAULT, APPEALS.

PROOF DID NOT DEMONSTRATE THAT THE VICTIM’S EYE INJURY ROSE TO THE LEVEL OF ‘SERIOUS PHYSICAL INJURY;’ BASED UPON A WEIGHT OF THE EVIDENCE ANALYSIS, ASSAULT FIRST REDUCED TO ASSAULT SECOND (SECOND DEPT). 10

ATTEMPTED MURDER.

PHYSICAL INJURY IS NOT AN ELEMENT OF ATTEMPTED MURDER; REQUEST FOR MISSING WITNESS JURY INSTRUCTION BASED UPON THE COMPLAINANT’S FAILURE TO TESTIFY PROPERLY DENIED; PERSISTENT FELONY SENTENCING PROCEDURE WAS NOT FOLLOWED (SECOND DEPT). 11

BRADY MATERIAL.

BRADY MATERIAL WHICH CONTRADICTED THE PEOPLE’S THEORY OF THE CASE SHOULD HAVE BEEN PROVIDED TO THE DEFENSE, CONVICTION REVERSED (CT APP). 12

CIRCUMSTANTIAL EVIDENCE.

THE STANDARD OF PROOF REQUIRED IN AN ENTIRELY CIRCUMSTANTIAL-EVIDENCE CASE WAS NOT MET IN THIS MURDER PROSECUTION; CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT). 13

COGNIZABLE CRIME, MODE OF PROCEEDINGS ERROR.

ATTEMPTED MENACING OF A POLICE OFFICER IS NOT A COGNIZABLE CRIME; CHARGING ATTEMPTED MENACING OF A POLICE OFFICER IS A MODE OF PROCEEDINGS ERROR THAT NEED NOT BE PRESERVED (FOURTH DEPT). 14

DOUBLE JEOPARDY, JURIES.

THE SECOND TRIAL VIOLATED THE DOUBLE JEOPARDY PROHIBITION; THE FIRST TRIAL COULD HAVE CONTINUED WITH ELEVEN JURORS AFTER A JUROR WAS DISQUALIFIED DURING DELIBERATIONS (SECOND DEPT). 14

DOUBLE JEOPARDY.

THE PROHIBITION OF DOUBLE JEOPARDY DID NOT PRECLUDE THE PROSECUTION BASED UPON THE THEFT OF GOLDMAN SACHS SOURCE CODE UNDER A STATE STATUTE AFTER DEFENDANT’S CONVICTION UNDER A FEDERAL STATUTE WAS REVERSED; THE STATE STATUTE INCLUDED AN ELEMENT NOT INCLUDED IN THE FEDERAL STATUTE (FIRST DEPT). 15

DRUG SALE.

DEFENDANT’S DRUG SALE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT). 16

EAVESDROPPING.

COURT HAD JURISDICTION TO ISSUE EAVESDROPPING WARRANTS TO INTERCEPT CELL PHONE CALLS AND TEXT MESSAGES SENT AND RECEIVED OUTSIDE NEW YORK STATE (SECOND DEPT). 17

FAMILY OFFENSE, JURISDICTION.

HEARING NECESSARY TO DETERMINE WHETHER FAMILY COURT HAS SUBJECT MATTER JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING; JURISDICTION DEPENDS ON THE NATURE OF THE RELATIONSHIP BETWEEN THE PARTIES (SECOND DEPT). 18

FIFTH AMENDMENT PRIVILEGE.

TRIAL JUDGE PROPERLY REFUSED TO COMPEL THE WITNESS WHO ASSERTED HIS FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION TO TESTIFY OR TO ASSERT THE PRIVILEGE IN FRONT OF THE JURY (THIRD DEPT). 19

GRAND JURIES.

PROOF PRESENTED TO THE GRAND JURY DID NOT SUPPORT ATTEMPTED THIRD OR FOURTH DEGREE LARCENY, APPELLATE DIVISION REVERSED (CT APP). 20

GRAVITY KNIVES.

POSSESSION OF A GRAVITY KNIFE CHARGE DISMISSED EVEN THOUGH THE STATUTE DECRIMINALIZING SUCH POSSESSION IS NOT TO BE APPLIED RETROACTIVELY (FIRST DEPT). 20

GUILTY PLEAS, APPEALS.

DEFENDANT’S WAIVER OF APPEAL DID NOT REMAIN VALID AFTER DEFENDANT PLED GUILTY TO A DIFFERENT CRIME WHEN THE INITIAL SENTENCE PROMISE COULD NOT BE FULFILLED (SECOND DEPT). 21

GUILTY PLEAS, APPEALS.

RESPONDENT, WHO HAD BEEN ADJUDICATED A JUVENILE DELINQUENT, WAS NOT GIVEN SUFFICIENT INFORMATION BEFORE ADMITTING TO A PROBATION VIOLATION, THE PETITION WAS DISMISSED; THE ERROR DID NOT REQUIRE PRESERVATION AND THE APPEAL WAS NOT MOOT BECAUSE OF THE COLLATERAL CONSEQUENCES OF A JUVENILE DELINQUENCY ADJUDICATION (THIRD DEPT). 22

GUILTY PLEAS, SENTENCE PROMISE.

DEFENDANT WAS ENTITLED EITHER TO THE VACATION OF HIS GUILTY PLEA OR TO A SENTENCE WHICH CONFORMED WITH THE SENTENCE PROMISE; DEFENDANT’S 440 MOTION WAS NOT BARRED BY PROVISIONS OF CPL 440.10 (FOURTH DEPT). 23

GUILTY PLEAS.

DEFENDANT’S PLEA TO A PROBATION VIOLATION WAS NOT VOLUNTARY AND MUST BE VACATED (THIRD DEPT). 23
IDENTIFICATION. 24

IDENTIFICATION

THE PRESUMPTION OF SUGGESTIVENESS RAISED BY THE PEOPLE’S FAILURE TO PRESENT THE PHOTO ARRAYS USED BY THE WITNESS TO IDENTIFY THE DEFENDANT WAS OVERCOME BY THE EVIDENCE OF THE SHEER NUMBER OF PHOTOS VIEWED BY THE WITNESS (SECOND DEPT). 24

INDICTMENTS.

TRIAL EVIDENCE RENDERED THE SINGLE-COUNT INDICTMENT DUPLICITOUS REQUIRING REVERSAL (FOURTH DEPT). 25

JURIES.

COURT SHOULD HAVE INQUIRED OF JURORS WHETHER THEIR CONCERNS ABOUT NOT BEING PAID BY THEIR EMPLOYERS DURING JURY DUTY WOULD AFFECT THEIR ABILITY TO RENDER AN IMPARTIAL VERDICT, NEW TRIAL ORDERED (FIRST DEPT). 26

JURIES.

DEFENSE PEREMPTORY CHALLENGES TO WHITE JURORS NOT SUPPORTED BY RACE-NEUTRAL REASONS; THE ALLEGED ERROR IN INSTRUCTING THE JURY ON THE JUSTIFICATION DEFENSE WAS NOT PRESERVED (SECOND DEPT). 27

JURIES.

FOR CAUSE CHALLENGES TO TWO JURORS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT). 28

JURIES.

JUROR MISCONDUCT WARRANTED A NEW TRIAL IN THIS MURDER CASE (CT APP). 29

JURY INSTRUCTIONS.

JURY INSTRUCTIONS ON THE JUSTIFICATION DEFENSE WERE ADEQUATE, ARGUMENTS TO THE CONTRARY WERE NOT PRESERVED (FIRST DEPT). 29

JUVENILES, FAMILY COURT.

JUDGE HAD THE AUTHORITY TO SEVER TWO COUNTS IN AN INDICTMENT AND REMOVE THE MATTER, INVOLVING A JUVENILE, TO FAMILY COURT; THE PEOPLE’S ARTICLE 78 SEEKING PROHIBITION DENIED AND DISMISSED (FIRST DEPT). 30

MATERIAL STAGE OF TRIAL, RIGHT TO BE PRESENT.

DEFENDANT HAD A RIGHT TO BE PRESENT WHEN THE PROSECUTOR SUCCESSFULLY ARGUED ADDITIONAL MOLINEUX EVIDENCE SHOULD BE ADMITTED AT TRIAL, NEW TRIAL ORDERED (FIRST DEPT). 31

MISDEMEANOR COMPLAINT.

THE TOP COUNT OF A MISDEMEANOR COMPLAINT WAS NOT SUPPORTED BY SWORN ALLEGATIONS OF FACT, BUT THE LESSER COUNTS WERE SUPPORTED; A GUILTY PLEA TO THE JURISDICTIONALLY DEFECTIVE TOP COUNT DID NOT WAIVE THE DEFECT AND DEFENDANT’S CONVICTION WAS PROPERLY REVERSED (CT APP). 32

MOLINEUX.

DEFENSE COUNSEL’S QUESTIONS WHETHER COMPLAINANTS HAD HIRED LAWYERS AND HAD SUED DEFENDANT-TEACHER AND THE SCHOOL DISTRICT IN THIS CHILD SEX ABUSE CASE DID NOT OPEN THE DOOR TO ALL EVIDENCE OF DEFENDANT’S ALLEGED PRIOR SEXUAL ABUSE OF CHILDREN, CONVICTION REVERSED BECAUSE DEFENDANT WAS DEPRIVED OF A FAIR TRIAL; JUDGE SHOULD NOT HAVE PARTICIPATED IN A READBACK OF TESTIMONY (SECOND DEPT). 33

NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, APPEALS.

NO APPEAL LIES FROM THE DENIAL OF A MOTION TO WITHDRAW A PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT (SECOND DEPT). 34

ORDER OF PROTECTION.

FATHER’S PETITION FOR CUSTODY OR PARENTING TIME SHOULD NOT HAVE DISMISSED BASED UPON AN ORDER OF PROTECTION ISSUED IN A CRIMINAL MATTER BEFORE THE CHILD WAS BORN (THIRD DEPT). 35

PAROLE.

CONDITION OF PAROLE THAT PETITIONER NEVER ENTER QUEENS COUNTY WITH NO PROVISION FOR OBTAINING PERMISSION TO TRAVEL THERE VIOLATED PETITIONER’S RIGHT TO TRAVEL AND RIGHT TO ASSOCIATE (FIRST DEPT). 35

PAROLE.

PETITIONER WAS INITIALLY APPROVED FOR PAROLE, BUT AFTER THE VICTIM IMPACT HEARING A RESCISSION HEARING WAS HELD AND PAROLE WAS RESCINDED; THE RESCISSION WAS PROPERLY BASED UPON VICTIM IMPACT STATEMENTS SUPPLYING INFORMATION WHICH WAS NOT “NEW” BUT WHICH WAS NOT PREVIOUSLY KNOWN TO THE PAROLE BOARD (THIRD DEPT). 36

PRIOR CONSISTENT STATEMENT.

ALLOWING THE INTRODUCTION OF A WITNESS’S GRAND JURY TESTIMONY AS A PRIOR CONSISTENT STATEMENT WAS (HARMLESS) ERROR (THIRD DEPT). 37

RAPE SHIELD LAW.

DNA EVIDENCE TO DEMONSTRATE THE COMPLAINANT’S SEXUAL HISTORY PROPERLY EXCLUDED AS A VIOLATION OF THE RAPE SHIELD LAW (SECOND DEPT). 38

REPUGNANT VERDICT, AGENCY DEFENSE.

UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE PEOPLE DID NOT DISPROVE DEFENDANT’S AGENCY DEFENSE; THE VERDICT WAS REPUGNANT IN THAT GUILTY AND NOT GUILTY FINDINGS CAN NOT BE RECONCILED (SECOND DEPT). 39

RESTITUTION.

RESTITUTION ORDERED AT SENTENCING (ABOUT $45OO) WAS ABOUT $500 HIGHER THAN THE AMOUNT AGREED TO IN THE PLEA DEAL, DEFENDANT SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEA (THIRD DEPT). 40

RIGHT TO COUNSEL.

DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN THE JUDGE TOLD HIM NOT TO DISCUSS HIS TRIAL TESTIMONY WITH DEFENSE COUNSEL DURING A TWO-DAY ADJOURNMENT; ALTHOUGH THE LEGAL-SUFFICIENCY AND RIGHT-TO-COUNSEL ISSUES WERE NOT PRESERVED, THE APPEAL WAS HEARD IN THE INTEREST OF JUSTICE (SECOND DEPT). 40

SEARCHES, PAROLE.

NEW JERSEY PAROLEE’S CONSENT TO SEARCH AS A CONDITION OF PAROLE DID NOT APPLY TO A SEARCH DONE BY NEW YORK CITY POLICE IN QUEENS; STATEMENTS MADE WITHOUT MIRANDA WARNINGS, INCLUDING THE CONSENT TO SEARCH, AS WELL AS THE FRUITS OF THE SEARCH, PROPERLY SUPPRESSED (SECOND DEPT). 41

SEARCHES.

POLICE OFFICER’S WARRANTLESS ENTRY INTO A METH LAB WAS JUSTIFIED BY WHAT WAS IN PLAIN VIEW THROUGH A PARTIALLY OPEN DOOR AND THE OFFICER’S CONCERN FOR THE SAFETY OF PEOPLE INSIDE A NEARBY TRAILER (THIRD DEPT). 42

SEARCHES.

THE MOTION TO SUPPRESS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BECAUSE DEFENSE COUNSEL HAD NOT BEEN PROVIDED WITH A COPY OF THE SEARCH WARRANT AT THE TIME THE MOTION WAS MADE (SECOND DEPT). 43

SEARCHES.

THE POLICE DID NOT HAVE A REASONABLE SUSPICION DEFENDANT WAS CONCEALING DRUGS ON HIS PERSON WHEN THEY CONDUCTED A STRIP SEARCH, DRUGS SEIZED DURING THE STRIP SEARCH SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT). 43

SEARCHES.

THE SEARCH WARRANT WAS IMPROPERLY ADDRESSED TO CORRECTIONS OFFICERS, WHO ARE NOT POLICE OFFICERS, AS WELL AS POLICES OFFICERS, AND THE SEARCH WAS CONDUCTED BY BOTH POLICE OFFICERS AND CORRECTIONS OFFICERS; NEITHER THE SEARCH WARRANT NOR THE SEARCH WAS THEREBY RENDERED INVALID (SECOND DEPT). 44

SEX OFFENDER REGISTRATION ACT (SORA).

DEFENDANT’S CONNECTICUT CONVICTION WAS NOT EQUIVALENT TO A NEW YORK REGISTRABLE OFFENSE; THE CIVIL APPEALS STANDARDS APPLY; ALTHOUGH NOT PRESERVED, THE ISSUE PRESENTS A PURE QUESTION OF LAW, COULD NOT HAVE BEEN AVOIDED IF RAISED BELOW AND THE RECORD WAS SUFFICIENT FOR REVIEW (FIRST DEPT). 45

SEX OFFENDER REGISTRATION ACT (SORA).

PROOF OF AN UNCHARGED SEXUAL OFFENSE RELIED UPON FOR AN UPWARD DEPARTURE WAS INSUFFICIENT; LEVEL THREE ASSESSMENT REDUCED TO LEVEL TWO (SECOND DEPT). 46

SEX OFFENDER REGISTRATION ACT (SORA).

THE CRIME TO WHICH DEFENDANT PLED DID NOT HAVE A FORCIBLE COMPULSION ELEMENT SO 10 POINTS SHOULD NOT HAVE BEEN ASSESSED ON THAT GROUND; HOWEVER THE MATTER WAS SENT BACK BECAUSE AN UPWARD DEPARTURE MIGHT BE WARRANTED (FOURTH DEPT). 47

SUPERIOR COURT INFORMATION.

A SUPERIOR COURT INFORMATION CANNOT INCLUDE A JOINABLE OFFENSE WHICH IS GREATER IN DEGREE THAN THE OFFENSE FOR WHICH THE DEFENDANT WAS HELD FOR THE ACTION OF THE GRAND JURY (THIRD DEPT). 48

TRAFFIC STOPS.

ALTHOUGH DEFENDANT DID NOT VIOLATE THE VEHICLE AND TRAFFIC LAW IN MAKING A LEFT TURN, THE OFFICER REASONABLY BELIEVED THERE WAS A VIOLATION; THE TRAFFIC STOP WAS JUSTIFIED AND THE SUPPRESSION MOTION WAS PROPERLY DENIED (FOURTH DEPT). 49

WAIVER OF INDICTMENT, SUPERIOR COURT INFORMATION.

WAIVER OF INDICTMENT WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE THE TIME AND PLACE OF THE OFFENSE (THIRD DEPT). 50