Criminal Law Update June 2020

Criminal Law Update June 2020

Course #CRM0366 (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 June 1, 2020 and June 30, 2020 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 June 2020”) 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 June 2020”), 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 June 2020

Criminal Law Update June 2020 Attorney Affirmation

Criminal Law Update June 2020 Evaluation Survey

Topics Covered in the “Criminal Law Update June 2020” 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 June 2020”

APPEAL, WAIVER OF.

SUPREME COURT MISCHARACTERIZED THE SCOPE OF THE WAIVER OF APPEAL BY NOT CLARIFYING THAT CERTAIN FUNDAMENTAL ISSUES REMAIN APPEALABLE DESPITE THE WAIVER; WAIVER INVALID (SECOND DEPT). 8

APPEAL, WAIVER OF.

WHERE A TRIAL JUDGE DEMANDS A WAIVER OF APPEAL, THE JUDGE SHOULD PLACE HIS OR HER REASONS ON THE RECORD SO THE DEMAND IS NOT SEEN AS A TOOL FOR AVOIDING APPELLATE REVIEW; THE JUDGE-DEMANDED WAIVER WAS NOT ENFORCED IN THIS CASE (SECOND DEPT). 9

APPEALS, WEIGHT OF THE EVIDENCE, DEPRAVED INDIFFERENCE.

THE DEPRAVED-INDIFFERENCE ELEMENT OF THE CHARGED OFFENSES WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; ALTHOUGH DEFENDANT’S ATTEMPTS TO CARE FOR BURNS ON THE CHILD’S LEGS WERE GROSSLY INADEQUATE, THOSE MEASURES DID NOT SUPPORT A FINDING DEFENDANT DID NOT CARE AT ALL ABOUT THE CONDITION OF THE CHILD (SECOND DEPT). 10

APPEALS, WEIGHT OF THE EVIDENCE.

RECKLESS ENDANGERMENT AND MENACING A POLICE OFFICER CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT). 11

APPEALS.

14-MONTH DELAY IN THE TRANSCRIPTION OF THE RECORD DID NOT DEPRIVE DEFENDANT OF HIS RIGHT TO APPEAL (THIRD DEPT). 11

APPEALS.

AFTER REVERSAL BY THE COURT OF APPEALS, DEFENDANT’S SUPPRESSION MOTION WAS GRANTED AND HIS GUILTY PLEA WAS VACATED; EVEN THOUGH DEFENDANT’S SUPPRESSION MOTION DID NOT RELATE TO THE OFFENSE TO WHICH DEFENDANT PLED GUILTY, THE APPELLATE DIVISION SHOULD HAVE REACHED THE MERITS OF THE MOTION BECAUSE OF ITS POTENTIAL EFFECT ON THE DECISION TO PLEAD GUILTY TO ANOTHER OFFENSE IN FULL SATISFACTION OF ALL THE CHARGES (FOURTH DEPT). 12

APPEALS.

EVEN THOUGH THE US SUPREME COURT CASE REQUIRING WARRANTS FOR CELL SITE LOCATION DATA WAS NOT DECIDED AT THE TIME OF TRIAL, PRESERVATION OF THAT ISSUE FOR APPEAL IS STILL NECESSARY; A DEFENDANT MAY BE INDICTED FOR BOTH DEPRAVED INDIFFERENCE AND INTENTIONAL MURDER; CONSECUTIVE SENTENCES FOR THE SHOOTINGS AND POSSESSION OF A WEAPON WERE APPROPRIATE (FIRST DEPT). 13

APPEALS.

SUPPRESSION COURT’S FAILURE TO EXPLAIN THE BASIS FOR DENYING THE MOTION TO SUPPRESS PRECLUDED DETERMINATION OF THE APPEAL; MATTER REMITTED (SECOND DEPT). 14

APPEALS.

THE APPELLATE DIVISION COULD NOT DECIDE THE APPEAL OF THE DENIAL OF A SUPPRESSION MOTION ON A GROUND NOT RELIED UPON BY THE SUPPRESSION COURT (CT APP). 15

ATTORNEYS, INEFFECTIVE ASSISTANCE.

DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD HAVE BEEN GRANTED; DEFENSE COUNSEL DID NOT ATTEMPT TO SECURE THE TESTIMONY OF A WITNESS WHO WOULD TESTIFY THAT HER BOYFRIEND, WHO USED TO BE THE BOYFRIEND OF THE MURDER VICTIM, CONFESSED TO KILLING THE VICTIM (FOURTH DEPT). 16

ATTORNEYS, INEFFECTIVE ASSISTANCE, STREET STOPS.

THE SECTION OF THE VEHICLE AND TRAFFIC LAW RELIED ON BY THE POLICE FOR THE VEHICLE STOP MAY NOT HAVE BEEN APPLICABLE AND THE STOP THEREFORE MAY HAVE BEEN ILLEGAL; DEFENSE COUNSEL’S FAILURE TO MAKE A MOTION TO SUPPRESS ON THAT GROUND CONSTITUTED INEFFECTIVE ASSISTANCE; PLEA VACATED AND MATTER REMITTED (FOURTH DEPT). 17

ATTORNEYS, INEFFECTIVE ASSISTANCE.

DEFENDANT ALLEGED DEFENSE COUNSEL OVERSTATED THE RISK OF DEPORTATION CAUSING HIM TO REJECT A FAVORABLE PLEA OFFER; DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE (FIRST DEPT). 18

ATTORNEYS, PROSECUTORIAL MISCONDUCT, COMFORT DOGS.

IT MAY HAVE BEEN ERROR TO ALLOW THE VICTIM TO TESTIFY ACCOMPANIED BY A DOG, BUT THE ISSUE WAS NOT PRESERVED; ALTHOUGH THE PROSECUTOR MADE AN IMPROPER COMMENT IT DID NOT REQUIRE REVERSAL; PROSECUTORS ADMONISHED THAT THEIR ROLE IS TO ENSURE JUSTICE IS DONE, NOT SIMPLY SEEK CONVICTIONS (FOURTH DEPT). 19

BRADY MATERIAL, INDICTMENTS.

EXCULPATORY (BRADY) EVIDENCE IN THE COMPLAINANT’S MENTAL HEALTH RECORDS WAS REDACTED BY THE JUDGE; TWO INDICTMENT COUNTS WERE MULTIPLICITOUS; NEW TRIAL ORDERED IN THIS SEXUAL ABUSE CASE (SECOND DEPT). 20

CITIZEN’S ARREST.

FEDERAL CUSTOMS AND BORDER PATROL MARINE INTERDICTION AGENT IS NOT A PEACE OFFICER UNDER NEW YORK LAW; THEREFORE THE AGENT MADE A VALID CITIZEN’S ARREST OF AN ERRATIC DRIVER HE OBSERVED WHILE ON THE HIGHWAY; MOTION TO SUPPRESS THE WEAPON FOUND IN DEFENDANT’S CAR SHOULD NOT HAVE BEEN GRANTED (CT APP). 20

CONCURRENT INCLUSORY COUNTS.

THE TWO COUNTS OF ROBBERY THIRD WERE CONCURRENT INCLUSORY COUNTS OF THE TWO COUNTS OF ROBBERY SECOND; CONVICTIONS ON THE ROBBERY SECOND COUNTS REQUIRED VACATION OF THE CONVICTIONS ON THE ROBBERY THIRD COUNTS AND THE RELATED SENTENCES (SECOND DEPT). 22

DEPRAVED INDIFFERENCE.

THE OPINION CHANGING THE CRITERIA FOR THE DEPRAVED-INDIFFERENCE MENS REA CAME DOWN BEFORE DEFENDANT’S CONVICTION BECAME FINAL; DESPITE THE AFFIRMANCE OF DEFENDANT’S MURDER CONVICTION ON APPEAL, THE DENIAL OF A MOTION TO REARGUE THE APPEAL, THE DENIAL OF THE MOTION FOR LEAVE TO APPEAL TO THE COURT OF APPEALS, AND THE DENIAL OF DEFENDANT’S PETITION FOR A WRIT OF HABEAS CORPUS IN FEDERAL COURT, SUPREME COURT SHOULD HAVE GRANTED DEFENDANT’S MOTION TO VACATE HIS CONVICTION (SECOND DEPT). 22

DISMISS, MOTION TO, INTEREST OF JUSTICE.

DEFENDANT’S MOTION TO DISMISS IN THE INTEREST OF JUSTICE SHOULD NOT HAVE BEEN GRANTED; THE MOTION, BROUGHT AFTER CONVICTION BY A JURY, WAS UNTIMELY AND NOT WARRANTED ON THE MERITS (SECOND DEPT). 23

DNA.

FRYE HEARING SHOULD HAVE BEEN HELD TO DETERMINE THE ADMISSIBILITY OF DNA EVIDENCE DERIVED USING THE FORENSIC STATISTICAL TOOL (FST); NEW TRIAL ORDERED (SECOND DEPT). 24

EXPERTS.

DEFENSE ‘FALSE CONFESSION’ EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY, CONVICTION REVERSED; RIGHT TO CONFRONT WITNESSES NOT VIOLATED BY STATEMENTS IN THE VIDEO INTERROGATION THAT NONTESTIFYING WITNESSES HAD IMPLICATED THE DEFENDANT (SECOND DEPT). 25

GRAND JURY, INSTRUCTIONS, DEFENSES.

FAILURE TO INSTRUCT THE GRAND JURY ON THE DEFENSE OF PROPERTY JUSTIFICATION DEFENSE REQUIRED DISMISSAL OF THE MURDER/MANSLAUGHTER INDICTMENT (CT APP). 26

GUILTY PLEAS, WITHDRAWAL OF.

DEFENDANT SHOULD HAVE BEEN ALLOWED TO EXPLAIN WHY HE WANTED TO WITHDRAW HIS GUILTY PLEA; MATTER REMITTED (FOURTH DEPT). 27

HABEAS CORPUS, COVID-19.

HABEAS CORPUS PETITION ORDERING THE RELEASE OF A PRISONER BECAUSE OF THE RISK POSED BY COVID-19 SHOULD NOT HAVE BEEN GRANTED; THE PETITION DID NOT DEMONSTRATE THE PRISON OFFICIALS WERE DELIBERATELY INDIFFERENT TO THE RISK (THIRD DEPT). 28

HEARSAY, INCONSISTENT STATEMENTS.

HEARSAY STATEMENTS BY THE ONLY WITNESS TO IDENTIFY DEFENDANT AS A PERPETRATOR INDICATED THE WITNESS WAS NOT IN FACT ABLE TO IDENTIFY ANY OF THE PERPETRATORS; THE INCONSISTENT STATEMENTS SHOULD HAVE BEEN ADMITTED BECAUSE THEY WENT TO A CORE ISSUE IN THE CASE IMPLICATING THE RIGHT TO PUT ON A DEFENSE; CONVICTION REVERSED (SECOND DEPT). 29

INTOXICATION DEFENSE.

DEFENDANT WAS ENTITLED TO A JURY INSTRUCTION ON THE INTOXICATION DEFENSE; DEFENDANT SHOULD HAVE BEEN ALLOWED TO ATTEMPT TO LAY FOUNDATIONS FOR THE ADMISSION OF POLICE AND DISTRICT ATTORNEY BUSINESS RECORDS IN SUPPORT OF HIS INTOXICATION DEFENSE; NEW TRIAL ORDERED DESPITE DEFENDANT’S COMPLETION OF HIS SENTENCE (SECOND DEPT). 30

JUDGES.

TRIAL JUDGE ASSUMED THE ROLE OF THE PROSECUTOR AND ELICITED CRUCIAL IDENTIFICATION TESTIMONY, NEW TRIAL ORDERED (SECOND DEPT). 31

JURORS.

STEP ONE OF DEFENDANT’S BATSON CHALLENGE PROPERLY REJECTED AS VAGUE AND CONCLUSORY; THERE WAS NO CONCEPCION BARRIER TO AFFIRMING THE TRIAL COURT’S STEP-ONE RULING; THE REQUEST FOR THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT). 32

JURORS.

THE TRIAL JUDGE DID NOT MAKE AN ADEQUATE INQUIRY ABOUT THE REASONS FOR A SITTING JUROR’S ABSENCE BEFORE SUBSTITUTING AN ALTERNATE JUROR; NEW TRIAL ORDERED (CT APP). 33

JURY NOTES.

COURT’S ERRORS IN DEALING WITH NOTES FROM THE JURY, INCLUDING SUBSTITUTING THE WORD ‘INITIALLY’ FOR ‘INTENTIONALLY,’ REQUIRED REVERSAL (SECOND DEPT). 33

JUVENILE DELINQUENCY.

FAMILY COURT SHOULD HAVE GRANTED THE APPLICATION FOR AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL IN THIS JUVENILE DELINQUENCY PROCEEDING (SECOND DEPT). 34

LESSER INCLUDED OFFENSES.

CONVICTION OF COURSE OF SEXUAL CONDUCT AGAINST A CHILD FIRST DEGREE MUST BE VACATED AS A LESSER INCLUDED OFFENSE OF PREDATORY SEXUAL ASSAULT AGAINST A CHILD (SECOND 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 (CT APP). 35

POLICE OFFICERS, CROSS-EXAMINATION.

CROSS-EXAMINATION OF A POLICE OFFICER ABOUT MISCONDUCT IN A CIVIL SUIT SHOULD HAVE BEEN ALLOWED; CONVICTION REVERSED (FIRST DEPT). 37

PRISON CONTRABAND.

COCAINE IS NOT DANGEROUS CONTRABAND WITHIN THE MEANING OF PROMOTING PRISON CONTRABAND IN THE FIRST DEGREE; CONVICTION REDUCED TO PROMOTING PRISON CONTRABAND IN THE SECOND DEGREE (PROHIBITING ‘CONTRABAND,’ AS OPPOSED TO ‘DANGEROUS CONTRABAND’) (FOURTH DEPT). 37

SEARCHES, BORDERS.

WARRANTLESS MANUAL SEARCH OF DEFENDANT’S IPAD AT JFK AIRPORT PROPER; CRITERIA FOR SEARCHES OF ELECTRONIC DEVICES AT BORDERS EXPLAINED (SECOND DEPT). 38

SENTENCING.

ALTHOUGH THE PERSISTENT FELONY OFFENDER STATUS WAS AUTHORIZED AND LEGAL, THE APPELLATE DIVISION EXERCISED ITS DISCRETION TO FIND DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A PERSISTENT FELONY OFFENDER AND REDUCED HIS SENTENCE (FOURTH DEPT). 39

SENTENCING.

CONSECUTIVE PERIODS OF POSTRELEASE SUPERVISION VIOLATED THE PENAL LAW; ERROR DID NOT NEED TO BE PRESERVED (FOURTH DEPT). 40

SENTENCING.

DEFENDANT WAS ADJUDICATED A YOUTHFUL OFFENDER AND SENTENCED TO 60 DAYS IN JAIL AND FIVE YEARS PROBATION FOR STEALING A BREAKFAST SANDWICH FROM A RESTAURANT; EXTENSIVE DISSENT ARGUED THE SENTENCE WAS HARSH AND EXCESSIVE (FIRST DEPT). 41

SENTENCING.

THE SENTENCE FOR KIDNAPPING MUST RUN CONCURRENTLY WITH THE SENTENCE FOR FELONY MURDER; MOTION TO VACATE THE CONVICTION PROPERLY BROUGHT PURSUANT TO CRIMINAL PROCEDURE LAW 440.20 (SECOND DEPT). 41

SEX OFFENDER REGISTRATION ACT (SORA).

PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE IN THIS SORA RISK ASSESSMENT PROCEEDING SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 42

SEX OFFENDER REGISTRATION ACT (SORA).

PETITIONER SOUGHT A REDUCTION OF HIS 1996 LEVEL THREE SEX OFFENDER CLASSIFICATION BUT COUNTY COURT DENIED THE PETITION WITHOUT REQUESTING AN UPDATED RECOMMENDATION FROM THE BOARD OF EXAMINERS OF SEX OFFENDERS IN VIOLATION OF THE CORRECTION LAW; ORDER REVERSED AND MATTER REMITTED (THIRD DEPT). 43

SEX OFFENDER REGISTRATION ACT (SORA).

SUPREME COURT’S DENIAL OF DEFENDANT’S PETITION TO MODIFY HIS SORA RISK LEVEL CLASSIFICATION WITHOUT HOLDING A HEARING VIOLATED THE CORRECTION LAW (SECOND DEPT). 43

SEXUAL ABUSE, PUBLIC NUISANCE.

COMPLAINT AGAINST THE DIOCESE OF BUFFALO ALLEGING SEXUAL ABUSE BY A PRIEST DID NOT STATE A CAUSE OF ACTION FOR PUBLIC NUISANCE (FOURTH DEPT). 44

STREET STOPS, SEARCHES.

THE MAJORITY HELD THE WARRANTLESS SEARCH OF DEFENDANT’S BACKPACK WAS JUSTIFIED BECAUSE IT OCCURRED CLOSE IN TIME TO DEFENDANT’S ARREST ON THE STREET AND WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES; THE DISSENT ARGUED THERE WAS NO PROOF THE BACKPACK WAS WITHIN THE GRABBABLE AREA AND NO PROOF OF EXIGENT CIRCUMSTANCES (SECOND DEPT). 45

STREET STOPS, SEARCHES.

WARRANTLESS SEARCH OF DEFENDANT’S BACKPACK AFTER HE WAS HANDCUFFED NOT JUSTIFIED; CONVICTION REVERSED (SECOND DEPT). 46

SUPERIOR COURT INFORMATION, WAIVER OF INDICTMENT.

ABSENCE OF APPROXIMATE TIME OF THE OFFENSE IN THE SUPERIOR COURT INFORMATION (SCI) WAS NOT JURISDICTIONAL AND WAS THEREFORE WAIVED BY THE GUILTY PLEA; ABSENCE OF DA’S SIGNATURE ON THE WAIVER OF INDICTMENT DID NOT INVALIDATE IT; CONSECUTIVE SENTENCES FOR CRIMES ARISING FROM ONE CONTINUOUS INCIDENT WERE NOT ILLEGAL (THIRD DEPT). 47