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NO RECORD SUPPORT FOR LOWER COURT’S DENIAL OF SUPPRESSION OF LINE-UPS WHERE DEFENDANT WAS THE ONLY PERSON WITH DREADLOCKS.

The Court of Appeals, in a fill-fledged opinion by Judge Abdus-Salaam, determined all of the line-up identifications of the defendant should have been suppressed. The suppression court found that defendant’s dreadlocks constituted a “distinctive feature.” Defendant was the only person in the line-up identifications with dreadlocks. Two of the victims mentioned dreadlocks in their statements to the police, and two did not. The suppression court suppressed only the two line-up identifications made by the victims who mentioned dreadlocks:

We by no means propose that a lineup is unduly suggestive, as a matter of law, merely because a defendant has a different hairstyle than some or all of the fillers. We further decline to categorically state what features may be considered so “distinct” as to render a lineup unduly suggestive. But here, the courts below concluded that defendant’s dreadlocks were distinctive — so much so that they rendered the lineup unduly suggestive as to the two victims … who had mentioned the perpetrator’s hairstyle in their initial description to the police. This conclusion is supported by the lineup photographs introduced into evidence at the hearing, which clearly depict defendant as the only person with long, visible dreadlocks. … The lower courts’ conclusion that this same distinctive feature was not unduly suggestive for [the other two victims] was premised solely on their having not included dreadlocks as part of their descriptions. No other findings of fact were made that would distinguish the outcomes from one another. Since our holding here clarifies that a witness’s failure to mention a distinctive feature in his or her initial description is not necessarily the determinative factor in assessing a lineup’s suggestivity, here, we must conclude that there was no record support for the lower courts’ denial of suppression for [two of the four] lineups … . People v Perkins, 2016 NY Slip Op 08483, CtApp 12-20-16

CRIMINAL LAW (NO RECORD SUPPORT FOR LOWER COURT’S DENIAL OF SUPPRESSION OF LINE-UPS WHERE DEFENDANT WAS THE ONLY PERSON WITH DREADLOCKS)/EVIDENCE (CRIMINAL LAW, LINE-UPS, NO RECORD SUPPORT FOR LOWER COURT’S DENIAL OF SUPPRESSION OF LINE-UPS WHERE DEFENDANT WAS THE ONLY PERSON WITH DREADLOCKS)/SUPPRESSION (LINE-UPS, NO RECORD SUPPORT FOR LOWER COURT’S DENIAL OF SUPPRESSION OF LINE-UPS WHERE DEFENDANT WAS THE ONLY PERSON WITH DREADLOCKS)/LINE-UPS (NO RECORD SUPPORT FOR LOWER COURT’S DENIAL OF SUPPRESSION OF LINE-UPS WHERE DEFENDANT WAS THE ONLY PERSON WITH DREADLOCKS)/IDENTIFICATION (CRIMINAL LAW, NO RECORD SUPPORT FOR LOWER COURT’S DENIAL OF SUPPRESSION OF LINE-UPS WHERE DEFENDANT WAS THE ONLY PERSON WITH DREADLOCKS)

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DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO ASSERT THE JUSTIFICATION DEFENSE, DEFENDANT INSISTED HE WAS NOT THE SHOOTER AND INSTRUCTED COUNSEL NOT TO RAISE JUSTIFICATION AS A DEFENSE.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined defense counsel was not ineffective. Counsel, following defendant’s wishes. pursued a misidentification defense and did not pursue a justification defense. A video depicted actions which raised the possibility the shooting was justified as self-defense. However, defendant maintained he was not the shooter depicted in the video:

Here, we cannot say that defendant received less than meaningful representation … . Defendant concedes that he instructed counsel to pursue a misidentification defense, and he does not claim that counsel’s professional efforts in that regard were constitutionally deficient. Rather, defendant claims he was deprived of effective assistance when counsel failed to present a defense of justification. We disagree.

Each defense theory available to defendant posed its own challenges, and the choice of one, instead of the other, was not “determinative of the verdict” … . We are not presented with a case in which defendant’s chosen defense theory was self destructive and ensured conviction. Nor did the path taken by counsel undermine his ability to deploy professional skill and expertise in presenting the chosen defense. For the same reasons, counsel was not ineffective for objecting to any charge that would have presented justification to the jury as a response to the jury’s request for further instructions. Thus, we cannot say that counsel’s representation was constitutionally deficient at the time because he vigorously pursued the defense defendant approved rather than the one defendant rejected outright. People v Clark, 2016 NY Slip Op 08485, CtApp 12-20-16

 

CRIMINAL LAW (DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO ASSERT THE JUSTIFICATION DEFENSE. DEFENDANT INSISTED HE WAS NOT THE SHOOTER AND INSTRUCTED COUNSEL NOT TO RAISE JUSTIFICATION AS A DEFENSE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO ASSERT THE JUSTIFICATION DEFENSE. DEFENDANT INSISTED HE WAS NOT THE SHOOTER AND INSTRUCTED COUNSEL NOT TO RAISE JUSTIFICATION AS A DEFENSE)/INEFFECTIVE ASSISTANCE OF COUNSEL (DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO ASSERT THE JUSTIFICATION DEFENSE. DEFENDANT INSISTED HE WAS NOT THE SHOOTER AND INSTRUCTED COUNSEL NOT TO RAISE JUSTIFICATION AS A DEFENSE)

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WAIVER OF APPEAL WAS SUFFICIENT, APPELLATE DIVISION REVERSED.

The Court of Appeals, reversing the appellate division, determined defendant’s waiver of appeal was valid. The lower court judge first went through the rights waived by a guilty plea. Only then did the judge turn to the waiver of appeal:

Here, the court separately explained to defendant the panoply of rights normally [*3]forfeited upon a guilty plea. After ensuring that defendant understood those rights, the judge next had defendant allocute to the facts of the crimes. Only after the allocution did the court turn to the waiver of appeal. During the oral colloquy defendant stated he understood that he was “waiving [his] right to appeal” and “that this conviction, or these convictions will be final, that a court will not review what we have done here.” This verbal waiver was accompanied by a detailed written waiver which stated, among other things, that “the right to appeal is separate and distinct from the other rights automatically forfeited upon a plea of guilty.” Thus, the record sufficiently demonstrates that defendant knowingly and intelligently waived his right to appeal. People v Bryant, 2016 NY Slip Op 08488, CtApp 12-20-16

RIMINAL LAW (WAIVER OF APPEAL WAS SUFFICIENT, APPELLATE DIVISION REVERSED)/APPEALS (CRIMINAL LAW. WAIVER OF APPEAL WAS SUFFICIENT, APPELLATE DIVISION REVERSED)/WAIVER OF APPEAL (CRIMINAL LAW. WAIVER OF APPEAL WAS SUFFICIENT, APPELLATE DIVISION REVERSED)

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JURY INSTRUCTION TO CONTINUE DELIBERATIONS AFTER A NON-UNANIMOUS VERDICT WAS NOT COERCIVE.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined a jury instruction given after a jury verdict was found not to be unanimous was not coercive:

The supplemental instruction in this case, taken in context, was not coercive. In response to the jury’s representation that it had reached a “verdict” — when, in fact, the jury was not unanimous — the trial judge provided clarification that, in order to constitute a verdict, all jurors had to agree. Moreover, … the trial judge here stressed that the jurors should “attempt” to reach a verdict … , thereby leaving “open the possibility that the jurors would have principled disagreements that would prevent them from reaching a unanimous verdict” … . The court did not “overemphasize” the need to return a verdict or “suggest[] that the jurors were failing in their duty” by not doing so … . Nor did the court indicate that the jurors would be subject to “prolonged deliberations”… .

Contrary to defendant’s claim, the absence of “cautionary language” is not fatal to the supplemental charge. Just two hours before its supplemental instruction, the trial court provided an instruction containing ample cautionary language reminding the jury “not [to] surrender an honest view of the evidence.”  People v Morgan, 2016 NY Slip Op 08484, CtApp 12-20-16

 

CRIMINAL LAW (JURY INSTRUCTION TO CONTINUE DELIBERATION AFTER A NON-UNANIMOUS VERDICT WAS NOT COERCIVE)/JURY INSTRUCTIONS (CRIMINAL LAW, JURY INSTRUCTION TO CONTINUE DELIBERATION AFTER A NON-UNANIMOUS VERDICT WAS NOT COERCIVE)

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PROCEDURE FOR DETERMINING WHETHER A PROSECUTOR’S INITIAL STATEMENT OF READINESS FOR TRIAL WAS ILLUSORY CLARIFIED.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a concurrence in two of the three cases and a dissent in the third, articulated the procedure for determining whether a prosecutor’s off-calendar statement of readiness for trial was illusory. An illusory statement of readiness would not stop the speedy trial clock. The issue arises when an initial statement of readiness is followed by an indication the People are not ready for trial:

In each of these appeals, defendants moved to dismiss the accusatory instrument on speedy trial grounds pursuant to CPL 30.30 (1) arguing that the People’s off-calendar statements of readiness were illusory because the People were not ready for trial at the next court appearance. The common issue left open in People v Sibblies (22 NY3d 1174 [2014]) — is whether, in the event of a change in the People’s readiness status, the People or the defendant have the burden of showing that a previously filed off-calendar statement of readiness is illusory. We hold that such a statement is presumed truthful and accurate; a presumption that can be rebutted by a defendant’s demonstration that the People were not, in fact, ready at the time the statement was filed. If the People announce that they are not ready after having filed an off-calendar statement of readiness, and the defendant challenges such statement — at a calendar call, in a CPL 30.30 motion, or both — the People must establish a valid reason for their change in readiness status to ensure that a sufficient record is made for the court to determine whether the delay is excludable. The defendant then bears the ultimate burden of demonstrating, based on the People’s proffered reasons and other relevant circumstances, that the prior statement of readiness was illusory. People v Brown, 2016 NY Slip Op 08482, CtApp 12-20-16

CRIMINAL LAW (PROCEDURE FOR DETERMINING WHETHER A PROSECUTOR’S INITIAL STATEMENT OF READINESS FOR TRIAL WAS ILLUSORY CLARIFIED)/SPEEDY TRIAL (PROCEDURE FOR DETERMINING WHETHER A PROSECUTOR’S INITIAL STATEMENT OF READINESS FOR TRIAL WAS ILLUSORY CLARIFIED)/STATEMENT OF READINESS (CRIMINAL LAW, SPEEDY TRIAL, PROCEDURE FOR DETERMINING WHETHER A PROSECUTOR’S INITIAL STATEMENT OF READINESS FOR TRIAL WAS ILLUSORY CLARIFIED)

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NO STATE COMMON LAW COPYRIGHT PROTECTION FOR PRE-1972 RECORDINGS PLAYED BY RADIO STATIONS.

In an extensive opinion by Judge Stein, with a concurrence and a two-judge dissent, the Court of Appeals determined the owner of master recordings of songs by the band “The Turtles” did not have a state common-law copyright interest in the public performance of pre-1972 recordings (i.e., recordings broadcast by radio stations). A federal law controls post-1972 recordings:

… [C]ommon sense supports the explanation … that the record companies and artists had a symbiotic relationship with radio stations, and wanted them to play their records to encourage name recognition and corresponding album sales … . … [T]he Federal Copyright Office explicitly recognized the technological advances affecting the interests of the various participants in the music industry as early as 1991 … . Nevertheless, those participants have co-existed for many years and, until now, were apparently “happy together.” While changing technology may have rendered it more challenging for the record companies and performing artists to profit from the sale of recordings, these changes, alone, do not now warrant the precipitous creation of a common-law right that has not previously existed.

Simply stated, New York’s common-law copyright has never recognized a right of public performance for pre-1972 sound recordings. Because the consequences of doing so could be extensive and far-reaching, and there are many competing interests at stake, which we are not equipped to address, we decline to create such a right for the first time now. … Under these circumstances, the recognition of such a right should be left to the legislature. Flo & Eddie, Inc. v Sirius XM Radio, Inc., 2016 NY Slip Op 08480, CtApp 12-20-16

 

COPYRIGHT (NO STATE COMMON LAW COPYRIGHT PROTECTION FOR PRE-1972 RECORDINGS PLAYED BY RADIO STATIONS)/SOUND RECORDINGS (NO STATE COMMON LAW COPYRIGHT PROTECTION FOR PRE-1972 RECORDINGS PLAYED BY RADIO STATIONS)/RADIO STATIONS COMMON LAW COPYRIGHT PROTECTION FOR PRE-1972 RECORDINGS PLAYED BY RADIO STATIONS)/PUBLIC PERFORMANCE, RIGHT OF (NO STATE COMMON LAW COPYRIGHT PROTECTION FOR PRE-1972 RECORDINGS PLAYED BY RADIO STATIONS)

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FORMULAIC LANGUAGE INDICATING THE ACCEPTANCE OF A BID WAS SUBJECT TO A WRITTEN AGREEMENT AND DEPOSIT DID NOT NEGATE THE FORMATION OF A BINDING CONTRACT UPON ACCEPTANCE.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing the Appellate Division, determined plaintiff (Stonehill) was entitled to summary judgment against defendant Bank of the West (BOTW) in this breach of contract action.  BOTW offered for sale a syndicated loan at auction. Plaintiff bid on the loan and BOTW accepted the bid. The acceptance e-mail indicated it was “subject to” an executed agreement and a 10% deposit. BOTW argued that the “subject to” conditions were not met and a contract was never formed. The Court of Appeals disagreed noting a difference between conditions precedent to performance and conditions prefatory to the formation of a binding agreement:

In determining whether the parties intended to enter a contract, and the nature of the contract’s material terms, we look to the “objective manifestations of the intent of the parties as gathered by their expressed words and deeds” … . “[D]isproportionate emphasis is not to be put on any single act, phrase or other expression, but, instead on the totality of all of these, given the attendant circumstances, the situation of the parties, and the objectives they were striving to attain” … . With respect to auctions, the general rule is that a seller’s acceptance of an auction bid forms a binding contract, unless the bid is contingent on future conduct … . While an auction can be conditional, meaning property can be withdrawn after the close of bidding, it will not be deemed conditional absent explicit terms … . * * *

… [The acceptance] email stated that closure of the transaction required execution of a signed document and Stonehill’s tender of the 10% deposit. That, however, is not the same as a clear expression that the parties were not bound to consummate the sale and that BOTW could withdraw at any time, for any reason. Nor did BOTW make known its desire for an unrestricted exit from the deal before accepting Stonehill’s bid or anytime before it withdrew from the transaction. … There is a difference between conditions precedent to performance and those prefatory to the formation of a binding agreement. Stonehill Capital Mgt., LLC v Bank of the W., 2016 NY Slip Op 08481, CtApp 12-20-16

 

CONTRACT LAW (FORMULAIC LANGUAGE INDICATING THE ACCEPTANCE OF A BID WAS SUBJECT TO A WRITTEN AGREEMENT AND DEPOSIT DID NOT NEGATE THE FORMATION OF A BINDING CONTRACT UPON ACCEPTANCE)/AUCTIONS (CONTRACT LAW, FORMULAIC LANGUAGE INDICATING THE ACCEPTANCE OF A BID WAS SUBJECT TO A WRITTEN AGREEMENT AND DEPOSIT DID NOT NEGATE THE FORMATION OF A BINDING CONTRACT UPON ACCEPTANCE)/BID AND ACCEPTANCE (AUCTIONS, CONTRACT LAW, FORMULAIC LANGUAGE INDICATING THE ACCEPTANCE OF A BID WAS SUBJECT TO A WRITTEN AGREEMENT AND DEPOSIT DID NOT NEGATE THE FORMATION OF A BINDING CONTRACT UPON ACCEPTANCE)

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BRAND AMBASSADOR NOT AN EMPLOYEE.

The Third Department determined a brand ambassador was not an employee of Attack, a marketing outfit that hired ambassadors to promote particular products at events:

Here, the record evidence reflects that Attack retained little or no control over the means or results of the work performed by claimant and the other brand ambassadors. Although Attack required claimant to fill out a profile page and provide certain personal information and work experience, Attack did not interview or audition claimant, nor did it conduct a background check. Significantly, pursuant to the written agreement that claimant executed with Attack, the rate of pay of compensation, as well as the nature and duration of the services that claimant would provide, were dictated by the clients and not Attack. Similarly, Attack did not provide any training, supervision or materials and did not establish claimant’s work schedule. Nor did Attack provide claimant with any benefits, and claimant was not paid until the client paid Attack. Although claimant could not directly solicit work from Attack’s clients, he was also free to work as a brand ambassador for other companies. Matter of Burgess (Commissioner of Labor), 2016 NY Slip Op 08410, 3rd Dept 12-15-16

UNEMPLOYMENT INSUREANCE (BRAND AMBASSADOR NOT AN EMPLOYEE)/BRAND AMBASSADOR (UNEMPLOYMENT INSURANCE, BRAND AMBASSADOR NOT AN EMPLOYEE)

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FLAWED JURY INSTRUCTIONS ON THE JUSTIFICATION DEFENSE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The First Department reversed defendant’s conviction in the interest of justice because of flaws in the jury instructions. The court did not make clear that acquittal on the top count based upon the justification defense required acquittal on the other counts. Also the court’s charge on the use of excessive force was incomplete:

… [T]he court’s charge on the use of excessive force contained a significant omission. Even if a defendant is initially justified in using deadly physical force in self-defense, he or she may not continue to use deadly physical force after the assailant no longer poses a threat … . However, in such a situation the People must prove that it was the unnecessary additional force that caused the alleged harm … , which in this case was serious physical injury. The court’s charge on excessive force omitted the latter principle and thus impermissibly permitted the jury to convict defendant based upon a finding that although he was justified when he initially stabbed the complainant in the abdomen, defendant was not justified in inflicting subsequent wounds on the fleeing complainant, even if these additional wounds did not constitute serious physical injury. Although the parties dispute whether the additional wounds were serious, the jury could reasonably have concluded that they were not. It cannot be determined whether the jury found that defendant’s conduct was not justified because he was the initial aggressor or because, although not the initial aggressor, he subsequently used unnecessary physical force.  People v Delin, 2016 NY Slip Op 08465, 1st Dept 12-15-16

CRIMINAL LAW (FLAWED JURY INSTRUCTIONS REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/EVIDENCE (JUSTIFICATION DEFENSE, JURY INSTRUCTION INCOMPLETE)/JUSTIFICATION DEFENSE (JURY INSTRUCTION INCOMPLETE)/EXCESSIVE FORCE (JUSTIFICATION DEFENSE, JURY INSTRUCTION INCOMPLETE)

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TESTIMONY AT THE FACT FINDING HEARING ABOUT THE IDENTIFICATION PROCEDURE SHOULD NOT HAVE BEEN ADMITTED BECAUSE IT DIFFERED SIGNIFICANTLY FROM THE PROCEDURE DESCRIBED IN THE VOLUNTARY DISCLOSURE FORM.

The First Department, reversing Family Court’s juvenile delinquent adjudication, determined the testimony at the fact finding hearing about the identification procedure was so different from the description in the voluntary disclosure form [VDF] that the identification evidence should not have been admitted:

In a voluntary disclosure form [VDF], the presentment agency informed appellant that the complainant identified him inside a restaurant. Consistent with this notice, the arresting detective testified at the suppression hearing that he saw appellant and two companions, whom he had been following, enter the restaurant, that the complainant arrived at the scene, and that despite the officer’s instruction for the complainant to wait outside, the complainant entered the restaurant shortly after the detective did and there identified appellant. Based on this testimony, the court denied suppression, finding that the identification was a “spontaneous or un-arranged identification.” However, when the complainant ultimately testified at the fact-finding hearing, he testified that he never entered the restaurant, but rather that he identified appellant after the detective brought the three boys out of the restaurant and lined them up against a wall.

Although an inconsequential defect in a notice may be excused … , here the discrepancy between the two accounts of the identification was not inconsequential, but rather reflected that the VDF provided inadequate notice of the evidence the presentment agency intended to present at the fact-finding hearing … . Accordingly, the court should have granted appellant’s Family Ct Act § 330.2(2) motion to preclude identification evidence, which was made after the complainant testified regarding the identification procedure outside the restaurant. Matter of Deavan W., 2016 NY Slip Op 08469, 1st Dept 12-15-16

 

FAMILY LAW (TESTIMONY AT THE FACT FINDING HEARING ABOUT THE IDENTIFICATION PROCEDURE SHOULD NOT HAVE BEEN ADMITTED BECAUSE IT DIFFERED SIGNIFICANTLY FROM THE PROCEDURE DESCRIBED IN THE VOLUNTARY DISCLOSURE FORM)/CRIMINAL LAW (FAMILY COURT, JUVENILE DELINQUENCY, TESTIMONY AT THE FACT FINDING HEARING ABOUT THE IDENTIFICATION PROCEDURE SHOULD NOT HAVE BEEN ADMITTED BECAUSE IT DIFFERED SIGNIFICANTLY FROM THE PROCEDURE DESCRIBED IN THE VOLUNTARY DISCLOSURE FORM)/JUVENILE DELINQUENCY (TESTIMONY AT THE FACT FINDING HEARING ABOUT THE IDENTIFICATION PROCEDURE SHOULD NOT HAVE BEEN ADMITTED BECAUSE IT DIFFERED SIGNIFICANTLY FROM THE PROCEDURE DESCRIBED IN THE VOLUNTARY DISCLOSURE FORM)/EVIDENCE (FAMILY COURT, JUVENILE DELINQUENCY, TESTIMONY AT THE FACT FINDING HEARING ABOUT THE IDENTIFICATION PROCEDURE SHOULD NOT HAVE BEEN ADMITTED BECAUSE IT DIFFERED SIGNIFICANTLY FROM THE PROCEDURE DESCRIBED IN THE VOLUNTARY DISCLOSURE FORM)/IDENTIFICATION (FAMILY COURT, JUVENILE DELINQUENCY, TESTIMONY AT THE FACT FINDING HEARING ABOUT THE IDENTIFICATION PROCEDURE SHOULD NOT HAVE BEEN ADMITTED BECAUSE IT DIFFERED SIGNIFICANTLY FROM THE PROCEDURE DESCRIBED IN THE VOLUNTARY DISCLOSURE FORM)

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