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DEFENDANT’S RIGHT TO COUNSEL ATTACHED AT THE PENNSYLVANIA ARRAIGNMENT; SUBSEQUENT QUESTIONING BY PENNSYLVANIA POLICE IN THE ABSENCE OF COUNSEL VIOLATED DEFENDANT’S RIGHT TO COUNSEL; NEW YORK POLICE DID NOT MAKE A REASONABLE INQUIRY INTO DEFENDANT’S REPRESENTATIONAL STATUS (FOURTH DEPT). ​

The Fourth Department, affirming the suppression of statements made by defendant, determined defendant had requested counsel at his arraignment in Pennsylvania and therefore subsequent questioning by Pennsylvania police about New York (Jamestown) offenses in the absence of counsel violated his right to counsel:

On March 28, 2017, defendant participated in a preliminary arraignment in Pennsylvania … , and the record supports the finding of County Court that defendant requested counsel during that proceeding. On April 4, 2017, members of the Jamestown Police Department traveled to Pennsylvania to interview defendant about the Jamestown arsons. Although the Jamestown police officers ultimately did not interview defendant themselves, they observed while Pennsylvania State Troopers interrogated defendant, in the absence of defense counsel, about the offenses allegedly committed in Pennsylvania. During that interrogation, the Pennsylvania State Troopers also questioned defendant about the New York offenses, and defendant made inculpatory statements about the Jamestown fires. * * *

…[E]even though the interview was carried out by Pennsylvania State Troopers, their interrogation is nevertheless subject to this state’s right to counsel jurisprudence inasmuch as they were agents of the Jamestown police officers … . ,,,

The Court of Appeals has held that “an officer who wishes to question a person in police custody about an unrelated matter must make a reasonable inquiry concerning the defendant’s representational status when the circumstances indicate that there is a probable likelihood that an attorney has entered the custodial matter, and the accused is actually represented on the custodial charge” … . Here, although the [Jamestown] captain asked whether defendant was represented by counsel, based on this record, we conclude that the captain’s inquiry was not reasonable inasmuch as he failed to ask whether defendant had requested counsel. People v Young, 2020 NY Slip Op 01825, Fourth Dept 3-13-20

 

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REVERSAL IS NOT REQUIRED WHEN A JURY NOTE WHICH WAS NOT ADDRESSED BY THE COURT HAD NO DIRECT RELEVANCE TO THE CHARGED OFFENSE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined, after a reconstruction hearing, the trial judge was not made aware of a jury note which requested a trial exhibit and a chronology of events relating to the defendant’s dating the victim’s relative. The judge’s clerk provided the trial exhibit to the jury. No such chronology existed and the judge was not informed of the request for it. Because the chronology did not have anything to do with the charged offense, the failure to address that aspect of the jury note was not a mode of proceedings error:

… [T]he chronology requested by the jury involved background factual information regarding a former relationship between defendant and a relative of the victim that had no relevance to any of the elements of the charged crime or to the jury’s process of reaching a verdict … . … [I]n Silva, the Court of Appeals found that a trial court’s O’Rama [78 NY2d 270] error did not require reversal of the defendant’s drug-related convictions because the jury inquiry did not pertain to those convictions, but only to a conviction for weapon possession (People v Silva, 24 NY3d at 301 n 2). Likewise, in People v Walston (23 NY3d 986, 990 [2014]), the defendant’s manslaughter conviction was reversed because of a trial court’s mode of proceedings error, but the Court of Appeals held that reversal of a separate conviction on another charge was not required because the note did not address that offense.

Thus, reversal of a conviction is not required when a trial court fails to address a jury inquiry that has no direct relevance to that conviction … . People v Johnson, 2020 NY Slip Op 01668, Third Dept 3-12-20

 

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FAILURE TO INCLUDE THE APPROXIMATE TIME OF THE COMMISSION OF THE OFFENSE IN THE SUPERIOR COURT INFORMATION (SCI) IS NOT A JURISDICTIONAL DEFECT (THIRD DEPT). ​

The Third Department determined that the Superior Court Information (SCI) was not jurisdictionally defective and therefore any attack on the validity of the SCI was precluded by the waiver of appeal:

Pursuant to our recent decisions in People v Elric YY. (179 AD3d 1304 [2020]) and People v Shindler (179 AD3d 1306 [2020]), defendant’s further contention that her 2015 waiver of indictment was jurisdictionally defective because the SCI did not set forth the approximate time of the commission of the charged crimes as required by CPL 195.20 is also without merit … . The omission of the approximate time of the charged crimes in the SCI, to which defendant did not object, is a nonjurisdictional defect to which any objection was forfeited by her guilty plea. Notably, no claim has been made that defendant lacked notice of the specific crimes for which she agreed to waive prosecution by indictment. People v Edwards, 2020 NY Slip Op 01671, Third Dept 3-12-20

 

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DEFENDANT WAS ALONE IN HIS CAR ARGUING WITH SOMEONE ON HIS PHONE WHEN THE POLICE APPROACHED; THE POLICE DID NOT HAVE AN OBJECTIVE, CREDIBLE REASON FOR THE APPROACH; THE HANDGUN FOUND IN AN INVENTORY SEARCH SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, reversing County Court and dismissing the indictment, determined the police officers did not have an objective credible reason for approaching defendant, who was in his car outside a nightclub just after the club closed. The defendant was arrested after a check on his license revealed it had been suspended. The handgun found in an inventory search of the car should have been suppressed:

… [D]efendant’s engagement in an argument on his cell phone while alone in his private vehicle — did not provide any apparent nexus to the drug and weapons crimes that police said were typically committed in the area, or give rise to any other objective reason to question his presence. Nothing about a driver’s conduct in arguing on a cell phone, without more, suggests criminal activity related to weapons or drugs … . A sole occupant of a private vehicle arguing with someone who is not present gives rise to no apparent reason for police to intervene, such as potential safety concerns … .

Thus, we find that police did not have the requisite objective, credible reason for approaching defendant’s vehicle in the first instance. The encounter was further invalid because police had no objective, credible reason to extend the initial conversation by running defendant’s driver’s license after he responded to their initial inquiry and provided the information they requested … . The officer gave no explanation for his decision to intrude further at that point, nor does the record reveal such an explanation. Nothing about the exchange with defendant gave rise to any reason to suspect that he was not telling the truth … . Defendant’s driver’s license did not appear to belong to someone else … or reveal anything unusual on its face … . Lacking an objective, credible reason that justified police in approaching defendant’s vehicle and making inquiries, the encounter was invalid at its inception … . People v Stover, 020 NY Slip Op 01676, Third Dept 3-12-20

 

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WATER CAP IN A SIDEWALK WAS A TRIVIAL DEFECT, SLIP AND FALL ACTION PROPERLY DISMISSED (FIRST DEPT).

The First Department determined that a quarter to half inch depression where a water cap was located in a sidewalk was a trivial defect and therefore could not be the basis of a slip and fall action:

… [T]he alleged defect on which plaintiff tripped was trivial and nonactionable as a matter of law based on the characteristics and surrounding circumstances … . The water cap was a quarter to half of an inch below the surface of the sidewalk and the photographic evidence shows no defects in the water cap and surrounding sidewalk. Furthermore, plaintiff never attributed the cause of the accident to any broken or cracked cement or inadequate lighting … . Rivera v City of New York, 2020 NY Slip Op 01698, First Dept 3-12-20

 

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DEFENDANT’S PARTICIPATION IN A SETTLEMENT CONFERENCE DID NOT WAIVE HIS RIGHT TO SEEK DISMISSAL OF THE FORECLOSURE ACTION AS ABANDONED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant in this foreclosure action did not waive his right to seek dismissal of the complaint by participating in a settlement conference. The plaintiff bank had abandoned the action:

CPLR 3215(c) states that “if [a] plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned…upon its own initiative or on motion.” The language of CPLR 3215(c) is not discretionary, and a claim for which a default judgment is not sought within the requisite one-year period will be deemed abandoned … . Notwithstanding, a claim will not be deemed abandoned if the party seeking a default judgment provides sufficient cause as to why the complaint should not be dismissed (CPLR 3215[c]). Here, plaintiff waited almost three years to seek a default judgment, and it failed to provide sufficient cause as to why the complaint should not be dismissed. As such, plaintiff’s complaint is dismissed as abandoned.

Plaintiff’s argument that defendant waived his right to seek dismissal pursuant to 3215(c) because he participated in the settlement conferences is equally unavailing. Although a party may waive it rights under CPLR 3215(c) “by serving an answer or taking any other steps which may be viewed as a formal or informal appearance”…,  defendant’s participation in settlement conferences did not constitute either a formal or an informal  appearance “since [he] did not actively litigate the action before the Supreme Court or participate in the action on the merits” … . Wells Fargo Bank, N.A. v Martinez, 2020 NY Slip Op 01693, First Dept 3-12-20

 

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DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING; DEFENSE COUNSEL WAS NOT FAMILIAR WITH THE CASE OR THE DEFENDANT’S BACKGROUND (SECOND DEPT).

The Second Department, reversing the conviction, determined defendant did not receive effective assistance of counsel at sentencing. Counsel was not familiar with the case of the defendant’s background:

… [T]he defendant was deprived of the effective assistance of counsel at sentencing. A defendant is ” entitled to an opportunity to be represented by counsel sufficiently familiar with the case and the defendant’s background to make an effective presentation on the question of sentence'” … . Here, the defendant’s counsel at sentencing made no substantive arguments on the defendant’s behalf, and the record demonstrates that counsel had no meaningful knowledge of the case or of the defendant’s background. People v Jones, 2020 NY Slip Op 01640, Second Dept 3-11-20

 

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THE JURY WAS NOT PROPERLY INSTRUCTED ON THE JUSTIFICATION DEFENSE, INDICTMENT COUNT DISMISSED (SECOND DEPT).

The Second Department determined the jury was not properly instructed on the justification defense:

… [T]he Supreme Court instructed the jurors to consider justification as an element of each count submitted for their consideration. The court also instructed the jurors that they must find the defendant not guilty of all counts if they found that the People failed to disprove the defendant’s justification defense. However, the verdict sheet did not mention justification, and the court did not instruct the jurors that if they were to find the defendant not guilty of the greater counts of assault in the second degree on the basis of justification, they were not to consider the lesser count of obstructing governmental administration in the second degree. We cannot say with any certainty, and there is no way of knowing, whether the jurors acquitted the defendant of the greater counts on the ground of justification so as to mandate acquittal on the lesser count … .

The evidence at trial of lack of justification was not overwhelming … . Although, ordinarily, a new trial would be ordered, since the defendant was acquitted of the assault in the second degree counts and the only remaining count of the indictment concerns the offense for which the defendant has already completed his sentence, dismissal of the count of the indictment charging obstructing governmental administration in the second degree, rather than a new trial on that count, is appropriate … . People v Gunther, 2020 NY Slip Op 01638, Second Dept 3-11-20

 

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SECOND DEGREE MURDER COUNTS DISMISSED AS INCLUSORY CONCURRENT COUNTS RE FIRST DEGREE MURDER; CROSS EXAMINATION OF A POLICE OFFICER RE EXCESSIVE FORCE PROPERLY PRECLUDED BECAUSE THE ALLEGATIONS WERE NOT RELEVANT TO CREDIBILITY (SECOND DEPT).

The Second Department determined the second degree murder counts must be dismissed as inclusory concurrent counts of the convictions of first degree murder. The court noted that the trial court properly precluded cross examination of a police officer about allegations of the officer’s use of excessive force because the allegations were not relevant to credibility:

While specific and relevant allegations of misconduct in a civil action filed against a law enforcement officer may be used for the limited purpose of impeaching that law enforcement witness at trial … , such impeachment is subject to the court’s broad discretion in controlling the permissible scope of cross-examination … . Here, the defendant failed to demonstrate that specific allegations of excessive force in a federal action pending against the detective and a finding in 2010 by the Civilian Complaint Review Board that the detective used excessive force were relevant to the detective’s credibility … . People v Brown, 2020 NY Slip Op 01632, Second Dept 3-11-20

 

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PROTECTIVE ORDER PRECLUDING DISCLOSURE OF EVIDENCE TO THE DEFENSE REVERSED (SECOND DEPT).

The Second Department, in a decision by Justice Scheinkman, reversing Supreme Court, vacated a protective order concerning the disclosure of certain evidence to the defense:

I agree with the defendant that the People should have been required to disclose to defense counsel the general nature of the information that the People sought to be protected (see CPL 245.10[1][a] [“Portions of materials claimed to be non-discoverable may be withheld pending a determination and ruling of the court under 245.70 of this article; but the defendant shall be notified in writing that information has not been disclosed under a particular subdivision of (CPL 245.20)”]).

The defendant and his counsel were not informed as to whether what was sought to be protected were only witness names and personal information as opposed to witness statements, police reports, grand jury testimony, video or audio recordings, or other evidence.

I also agree with the defendant that, under the circumstances of this case, the People should have been required to disclose information about the reasons for the application that would not reveal the existence of the information sought to be protected. As I stated in People v Bonifacio (179 AD3d 977, 979), “proceedings on applications for a protective order should be entirely ex parte only where the applicant has demonstrated the clear necessity for the entirety of the application, and the submissions in support of it, to be shielded from the opposing party” and that it may be that “even where some aspects of the application should be considered by the court ex parte, other portions of the application may be appropriately disclosable.” Here, much of the written application could have been disclosed to defense counsel in redacted form without any danger of revealing the information sought to be protected … . People v Belfon, 2020 NY Slip Op 01630, Second Dept 3-11-20

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