Criminal Law Update April – June 2022 – Part 1 of 3

Criminal Law Update April – June 2022 – Part 1

(Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Appropriate for Experienced Attorneys

Areas of Professional Practice: 3.5 CLE Credit Hours

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 April 1, 2022 and June 30, 2022 which address issues in “Criminal Law.”

The “Civil Procedure” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly Reversal Reports which are accessed in the “Update Service.” The monthly Reversal Reports comprise the written materials for these monthly CLE courses. The course is divided into three parts: Part 1 is based on the April 2022 Reversal Report; Part 2 is based on the May 2022 Reversal Report; Part 3 is based on the June 2022 Reversal Report. The link to the April Reversal Report is below.

As you listen to the course, you will hear verification codes. After finishing Part 3 of the course, print and fill out the “Attorney Affirmation,” including the verification codes, 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). The links to the “Attorney Affirmation” and “Evaluation Survey” are on the podcast page for Part 3 of this course. 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 3.5 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 link below for the written materials for Part 1: Criminal Law Reversal Report April 2022).

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

Links to the Attorney Affirmation and Evaluation Form are on the podcast page for Part 3 of this course.

Criminal Law Reversal Report April 2022

Topics Covered in the “Criminal Law Reversal Report April 2022” Are Described Below; the Numbers Refer to the Page Numbers in the Report

APRIL 2022 REVERSAL REPORT

APPEALS, MOTION TO VACATE CONVICTION. 4

THE TWO-JUSTICE DISSENT ARGUED THAT THE MAJORITY ERRONEOUSLY AFFIRMED THE DENIAL OF THE MOTION TO VACATE THE CONVICTION ON A GROUND NOT RELIED UPON BY THE MOTION COURT (FOURTH DEPT). 4

BAIL-SETTING, HABEAS CORPUS. 5

ALTHOUGH BAIL-SETTING IS NOT APPEALABLE, WHETHER THE BAIL-SETTING COURT COMPLIED WITH THE CONSTITUTIONAL OR STATUTORY STANDARDS INHIBITING EXCESSIVE BAIL IS A PROPER SUBJECT FOR A HABEAS CORPUS PETITION; HERE THE BAIL-SETTNG COURT DID NOT COMPLY WITH CPL 510.30; MATTER REMITTED (FOURTH DEPT). 5

BRADY MATERIAL, PROVIDED FOUR DAYS BEFORE TRIAL. 6

ALTHOUGH INFORMATION PROVIDED FOUR DAYS BEFORE TRIAL PURSUANT TO A DEFENSE SUBPOENA INCLUDED BRADY MATERIAL, THE MAJORITY CONCLUDED THE DEFENSE HAD A MEANINGFUL OPPORTUNITY TO USE THE INFORMATION TO CROSS-EXAMINE THE PEOPLE’S WITNESSES; THE DISSENTER DISAGREED (THIRD DEPT). 6

CRIMINAL NEGLIGENCE, SPEEDING. 7

DEFENDANT WAS CONVICTED OF ASSAULT THIRD BASED UPON HIS LOSING CONTROL OF THE CAR AND CRASHING, INJURING A PASSENGER; THE “CRIMINAL NEGLIGENCE” ELEMENT OF ASSAULT THIRD WAS NOT SUPPORTED BY THE EVIDENCE; CONVICTION REVERSED UNDER A “WEIGHT OF THE EVIDENCE” ANALYSIS (FOURTH DEPT). 7

DISCIPLINARY HEARINGS (INMATES). 8

THE EVIDENCE DID NOT SUPPORT THE DETERMINATION PETITIONER-INMATE WAS GUILTY OF “CREATING A DISTURBANCE” (THIRD DEPT). 8

DISCOVERY, DEFENSE COUNSEL SHOULD BE PROVIDED WITH DISCOVERABLE MATERIAL PRIOR TO PROTECITVE-ORDER ARGUMENT. 9

THE PEOPLE’S APPLICATION FOR A PROTECTIVE ORDER PRECLUDING DISCLOSURE OF CERTAIN DISCOVERABLE MATERIALS TO THE DEFENDANT UNTIL A WEEK BEFORE TRIAL SHOULD HAVE BEEN PROVIDED TO DEFENSE COUNSEL TO ALLOW THE ISSUES TO BE FULLY LITIGATED; MATTER REMITTED (THIRD DEPT). 9

DWI, VEHICLE AND TRAFFIC LAW. 10

REFUSING TO TAKE A DWI BREATH TEST IS NOT AN OFFENSE (FOURTH DEPT). 10

EVIDENCE, PAST RECOLLECTION RECORDED, FLAWED JURY INSTRUCTIONS. 11

A PROSECUTION WITNESS’S WRITTEN STATEMENT DID NOT MEET THE CRITERIA FOR PAST RECOLLECTION RECORDED AND SHOULD NOT HAVE BEEN ADMITTED; THE JUDGE’S USE OF THE PHRASE “POTENTIALLY AIDS” INSTEAD OF “INTENTIONALLY AIDS” IN THE ACCOMPLICE LIABILITY JURY INSTRUCTION PREJUDICED THE DEFENDANT; ALTHOUGH THE JURY INSTRUCTION ERROR WAS NOT PRESERVED, THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT). 11

EVIDENCE, STATE-OF-MIND EVIDENCE, RAPE. 12

THE MAJORITY CONCLUDED THAT, IF IT WAS ERROR TO ADMIT TESTIMONY THAT THE RAPE VICTIM WAS AWARE DEFENDANT HAD BEEN INCARCERATED, THE ERROR WAS HARMLESS; TWO DISSENTERS ARGUED THE EVIDENCE HAD NO PROBATIVE VALUE BECAUSE THE VICTIM’S STATE OF MIND WAS NOT IN ISSUE AND ITS INTRODUCTION WAS THERFORE HIGHLY PREJUDICIAL (FOURTH DEPT). 12

FAMILY LAW, MOTHER’S MARIJUANA USE, NEGLECT. 13

MOTHER’S MARIJUANA USE DURING PREGNANCY AND THE FACT THAT MOTHER AND CHILD TESTED POSITIVE FOR MARIJUANA AT THE TIME OF THE CHILD’S BIRTH WERE NOT SUFFICIENT TO DEMONSTRATE NEGLECT; NEW YORK HAS LEGALIZED MARIJUANA USE (FIRST DEPT). 13

GUILTY PLEAS, INDUCED BY PROMISE NOT FULFILLED RE: ABILITY TO APPEAL ORDER. 14

ALTHOUGH THE ISSUE WAS NOT PRESERVED, DEFENDANT’S GUILTY PLEA WAS VACATED BECAUSE IT WAS INDUCED BY THE JUDGE’S PROMISE THAT ALL THE COURT’S ORDERS COULD BE APPEALED; IN FACT, THE DEFENDANT’S CONTENTION THAT TWO COUNTS OF THE INDICTMENT WERE DUPLICITOUS COULD NOT BE RAISED ON APPEAL (FOURTH DEPT). 14

JUDGES, ABUSE OF DISCRETION, PRECLUDING FURTHER APPLICATIONS 15

THE JUDGE, IN DENYING DEFENDANT’S SECOND MOTION T O SET ASIDE HIS SENTENCE, SHOULD NOT HAVE PRECLUDED DEFENDANT FROM MAKING “ADDITIONAL APPLICATIONS” WITHOUT THE PERMISSION OF THE COURT (THIRD DEPT). 15

JUDGES, INTERFERENCE BY JUDGE DURING TRIAL. 16

THE JUDGE’S INTERFERENCE IN AND RESTRICTIONS ON THE DEFENSE SUMMATION AND IMPROPER EXCLUSION AND ADMISSION OF EVIDENCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE (SECOND DEPT). 16

JUDGES, VOIR DIRE, JURORS INDICATED INCLINATION TO BELIEVE VICTIM. 17

THE JUDGE SHOULD HAVE INQUIRED FURTHER WHEN SEVERAL PROSPECTIVE JURORS INDICATED THEY WOULD BE INCLINED TO BELIEVE THE VICTIM IN THIS SEXUAL ABUSE CASE, NEW TRIAL ORDERED (FIRST DEPT). 17

JURORS, FOR CAUSE CHALLENGES, JUROR IS A DA. 18

THE FOR CAUSE CHALLENGE TO THE PROSPECTIVE JUROR WHO WAS AN ASSISTANT DISTRICT ATTORNEY IN THE OFFICE PROSECUTING THE DEFENDANT SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT). 18

JURY INSTRUCTIONS, JUSTIFICATION DEFENSE. 19

THE EVIDENCE DEMONSTRATED THE DEFENDANT PUNCHED THE POLICE OFFICER AFTER THE DEFENDANT WAS SPRAYED IN THE FACE WITH PEPPER SPRAY; THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE TO THE ASSAULT CHARGE; TWO JUSTICE DISSENT (THIRD DEPT). 19

LESSER INCLUDED CONCURRENT COUNTS. 20

BURGLARY SECOND COUNT DISMISSED AS A LESSER INCLUDED CONCURRENT COUNT OF BURGLARY FIRST (SECOND DEPT). 20

SEARCH AND SEIZURE, REASONABLE SUSPICION, PAT-DOWN SEARCH. 20

THE MAJORITY HELD THE DEFENDANT’S ACTIONS INSIDE THE STOPPED VEHICLE RAISED A REASONABLE SUSPICION DEFENDANT WAS ARMED, JUSTIFYING A PAT DOWN SEARCH; THE DISSENT ARGUED THE DEFENDANT’S ACTIONS WERE EQUIVOCAL AND INNOCUOUS (FOURTH DEPT). 20

SENTENCING, CONCURRENT VS CONSECUTIVE. 21

THE SENTENCE FOR WEAPON-POSSESSION SHOULD BE CONCURRENT WITH THE SENTENCES FOR THE SHOOTING-RELATED CONVICTIONS (SECOND DEPT). 21

SENTENCING, CONSECUTIVE VS CONCURRENT. 22

ROBBERY WAS THE FELONY UPON WHICH THE FELONY ASSAULT WAS PREDICATED; THEREFORE THE SENTENCES FOR ASSAULT FIRST AND ROBBERY FIRST MUST RUN CONCURRENTLY (FOURTH DEPT). 22

SENTENCING, SECOND FELONY OFFENDERS. 22

DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BASED UPON A PRIOR FEDERAL DRUG CONSPIRACY CONVICTION; THE ISSUE FALLS WITHIN A NARROW EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT). 22

SEX OFFENDER REGISTRATION ACT (SORA), CONTINUOUS COURSE OF SEXUAL MISCONDUCT. 23

THE PEOPLE DID NOT PROVE THE ALLEGED ACTS OF SEXUAL MISCONDUCT OCCURRED AT LEAST 24 HOURS APART; THEREFORE THE PEOPLE DID NOT PRESENT PROOF SUPPORTING A 20 POINT ASSESSMENT FOR A “CONTINUOUS COURSE OF SEXUAL MISCONDUCT:” LEVEL THREE REDUCED TO LEVEL TWO (FOURTH DEPT). 23

SPEEDY TRIAL, 21-YEAR DELAY. 24

THE 21-YEAR DELAY BETWEEN THE CRIME AND DEFENDANT’S ARREST DID NOT VIOLATE DEFENDANT’S SPEEDY-TRIAL RIGHTS (SECOND DEPT). 24

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