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THE JUDGE, PROSECUTOR AND DEFENSE COUNSEL AGREED DEFENDANT SHOULD STEP OUT OF THE COURTROOM WHEN HIS JUSTIFICATION DEFENSE WAS DISCUSSED IN A SIDEBAR CONFERENCE; DEFENSE COUNSEL’S AGREEMENT TO HAVE DEFENDANT STEP OUT OF THE COURTROOM WAS NOT A WAIVER OF DEFENDANT’S RIGHT TO BE PRESENT; CONVICTION REVERSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, determined defendant should have been present for the sidebar conference about the justification defense in this attempted murder by stabbing case. Defendant claimed he had a heart condition triggered by stress which causes his heart to race until he passes out. Defense counsel argued the condition was relevant to the justification defense because defendant felt he had to stab the victim before he passed out to protect himself. Before the issue was discussed the judge, prosecutor and defense counsel agreed the defendant should step out of the courtroom. The judge ruled the evidence of the heart condition could not come in unless the defendant’s testimony established a connection between the condition and the interaction with the victim:

… [T]he subject of the instant sidebar conference clearly implicated defendant’s peculiar factual knowledge such that his participation might have assisted him in advancing his justification defense to the murder and assault counts. The subject of the conference was whether defendant would be permitted to testify as to a medical (heart) condition with regard to his justification defense. During the sidebar conference the court repeatedly implored defense counsel to explain how defendant’s serious medical condition impacted his assessment of his physical safety. Defendant’s presence at the sidebar conference would have afforded him an opportunity to apprise the court, defense counsel and prosecutor of the exact details of his heart condition in order to demonstrate that it affected his assessment of the circumstances he was confronted with prior to the stabbing incident … . * * *

Although the right to be present at a sidebar conference need not be preserved by an objection … , the right may be waived. Such right may be waived either explicitly or implicitly by defendant … . …

… [D]efendant did not waive the right to be present at the sidebar conference. Contrary to the People’s assertion, defendant did not personally waive his right to be present either explicitly or implicitly. At no time did defendant make an affirmative statement on the record that he did not wish to attend the side bar conference. And no one ever asked him directly. … [H]e was commanded to leave the courtroom so that the sidebar conference could take place in his absence. … [A]t no time was defendant made aware that he had the right to be present at the sidebar conference … . …

… [I]n the absence of any record discussion by the court with counsel and the prosecutor regarding defendant’s right to be present at the sidebar conference, defense counsel’s expression of lack of objection to his client absence from the sidebar conference is not an affirmative statement by counsel confirming that defendant himself was waiving his right to be present at the sidebar conference … . People v Girard, 2022 NY Slip Op 06645, First Dept 11-22-22

Practice Point: Defense counsel agreed to have the defendant step out of the courtroom when the justification defense was discussed in a sidebar conference. Defense counsel’s agreement did not constitute a waiver of defendant’s right to be present. The conviction was reversed.

 

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DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO FILE A SUPPRESSION MOTION; THE FAILURE “INFECTED” THE GUILTY PLEA BECAUSE SUPPRESSION COULD HAVE LED TO DISMISSAL OF SOME OF THE INDICTMENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defense counsel’s failure to make a suppression motion constituted ineffective assistance:

… [W]e conclude that the record establishes that defense counsel could have presented a colorable argument that defendant’s detention was illegal and thus that any evidence obtained as a result thereof should have been suppressed as the fruit of the poisonous tree. One of the officers who initially detained defendant testified at a Huntley/Wade hearing that, prior to defendant’s arrest, one of the victims of a home invasion had described the suspects as two black men in their twenties, one of whom was wearing a hoodie “with some kind of emblem on the front.” About a half-hour later, the officer heard a broadcast of a tip from an unidentified retired police officer. The tip, as testified to at the hearing, reported “two [black] males [in their twenties] inside [a] corner store that possibly looked suspicious” with one that “might” have had “a handgun on his side” and another that was wearing a “teddy bear type hoodie,” which was later described as a hoodie with a teddy bear on the front. Based on that tip, officers responded to the corner store, entered with weapons drawn, and immediately ordered the two men, one of whom was defendant, to raise their hands. The officer testified, however, that the men were not acting suspiciously nor did she observe a weapon when she and her partner entered the store. While handcuffing defendant, the officer for the first time observed a handgun in defendant’s waistband, saw blood on defendant’s hoodie, and obtained statements from defendant. Defendant was thereafter taken for show-up identifications, during which the victims of the prior home invasion identified him as one of the men involved in that incident.

… [I]t cannot be said that a motion seeking suppression on the ground that defendant was unlawfully detained would have had “little or no chance of success” … , and instead those facts demonstrate that defense counsel failed to pursue a “colorable claim[]” that could have led to suppression … . …

… [D]efense counsel prepared such a motion to suppress evidence on that basis, indicated an intent to make that motion, and simply failed to file the motion despite having been twice informed by the court of the need to do so given the People’s refusal to consent to a hearing regarding the legality of the detention without such a motion. …

… [D]efendant’s contention survives his guilty plea inasmuch as the error in failing to seek suppression on that basis infected the plea bargaining process because suppression of the challenged evidence would have resulted in dismissal of at least some of the indictment … . People v Roots, 2022 NY Slip Op 06617, Fourth Dept 11-18-22

Practice Point: Defense counsel was deemed ineffective for failing to file a suppression motion. It worth noting that defense counsel had prepared a motion but failed to file it despite requests by the court and the prosecutor. The failure “infected” the guilty plea because suppression could have resulted in dismissal of some of the indictment.

 

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A MALFUNCTION OF THE AUDIO RECORDING DEVICE MADE IT IMPOSSIBLE TO TRANSCRIBE PORTIONS OF THE TRIAL; THE APPELLATE COURT SENT THE MATTER BACK FOR A RECONSTRUCTION HEARING (FOURTH DEPT). ​

The Fourth Department, sending the matrimonial action back for a reconstruction hearing, determined the inability to transcribe portions of the audio recording prejudiced the parties:

“Parties to an appeal are entitled to have that record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of the stenographer” or the audio recording device … . Here, contrary to the court’s determination, the record establishes that significant portions of the testimony of plaintiff and defendant, including testimony related to child custody and certain other issues, could not be transcribed due to malfunctions of the audio recording system, which would preclude meaningful appellate review of those issues . To the extent that they are properly before us, we have considered and rejected the parties’ remaining contentions. We therefore reverse the order, grant the motion, and remit the matter to Supreme Court to hold a reconstruction hearing with the parties and any witnesses or evidence the court deems helpful in reconstructing, if possible, those portions of the testimony of plaintiff and defendant that could not be transcribed … . Wagner v Wagner, 2022 NY Slip Op 06600, Fourth Dept 11-18-22

Practice Point: If a recording device malfunctions making it impossible to transcribe portions of a trial, the appellate court may send the matter back to reconstruct the missing parts of the record.

 

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ALTHOUGH THE ISSUE WAS NOT PRESERVED FOR APPEAL, THE FAILURE TO GIVE THE CIRCUMSTANTIAL-EVIDENCE JURY INSTRUCTION WAS REVERSIBLE ERROR (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of criminal possession of a weapon, determined the evidence was entirely circumstantial requiring that the jury be instructed on the circumstantial-evidence standard of proof. The issued had not been preserved for appeal:

Supreme Court erred in failing to give a circumstantial evidence instruction. The evidence against defendant with respect to his possession of the .22 caliber revolver was entirely circumstantial, and the court’s jury instructions “failed to convey to the jury in substance that it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence” … . Inasmuch as the proof of defendant’s guilt is not overwhelming, the inadequacy of the charge was prejudicial error requiring reversal of those parts of the judgment convicting defendant under counts one and two of the superseding indictment and a new trial with respect thereto, notwithstanding defendant’s failure to request such a charge or to except to the charge as given … . People v Soto, 2022 NY Slip Op 06589, Fourth Dept 11-18-22

Practice Point: Here the failure to give the circumstantial-evidence jury instruction required reversal despite the failure to preserve the issue.

 

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THE SUPPRESSION COURT DID NOT RULE ON DEFENDANT’S ARGUMENT THE INITIAL PURSUIT BY THE POLICE WAS NOT JUSTIFIED; AN APPELLATE COURT CANNOT CONSIDER AN ISSUE NOT RULED UPON; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter for a ruling, determined the appellate court could not consider the suppression argument which was not ruled upon by the motion court. Defendant argued the police did not have reasonable suspicion such that the initial pursuit of the suspect was justified:

At the suppression hearing, the People presented evidence that on the night in question, a police officer was flagged down by an unnamed citizen, who stated that shots had been fired in that area. During that conversation, the officer himself heard a gunshot. He went immediately to the location and observed several people hiding or running into a nearby store. One man took flight, grabbing his waistband with both hands. According to the officer, such a gesture was indicative of a person “holding a very heavy object or a handgun.” That individual was the only person not attempting to hide or seek cover. At that point, the officer began his pursuit, but lost sight of the individual. The officer broadcast a description of the suspect, including specifics of his clothing, over the radio, at which point other officers in the area observed a man fitting that description and pursued him, eventually arresting him at a residence and bringing him to the location of the shooting, where he was identified by two eyewitnesses as the person who had fired the shots. Surveillance video from the store and body camera footage from the officers involved confirms the sequence of events. Following the hearing, the court ruled, inter alia, that there was “more than adequate probable cause.” However, the court did not explain when probable cause existed or rule on whether the officer who initially observed the suspect had reasonable suspicion to pursue him.  People v Anderson, 2022 NY Slip Op 06575, Fourth Dept 11-18-22

Practice Point: If an issue was raised in a suppression motion but was not ruled upon by the suppression court, the appellate court cannot consider the issue. Here the Fourth Department remitted the case for a ruling.

 

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THE APPELLATE DIVISION AFFIRMED DEFENDANT’S CONVICTION BY GUILTY PLEA AFTER A FLAWED SPEEDY-TRIAL ANALYSIS OF THE EIGHT-YEAR PRE-INDICTMENT DELAY; THE COURT OF APPEALS REVERSED, EXPLAINED THE FLAWS AND REMITTED THE MATTER FOR A NEW ANALYSIS (CT APP). ​

The Court of Appeals, reversing the appellate division’s affirmance of defendant’s (Johnson’s) conviction by guilty plea and remitting the matter for another analysis, in a full-fledged opinion by Judge Wilson, determined the appellate division did not properly apply the “Taranovich” criteria to the eight-year pre-indictment delay in this rape/sexual abuse case.

In People v Taranovich, we established the following five factors for assessing speedy trial claims: (1) the extent of the delay; (2) the reasons for the delay; (3) the nature of the underlying charge; (4) whether there has been an extended period of pretrial incarceration; and (5) whether there is any indication that the defense has been impaired by reason of the delay … . Although this case concerns pre-indictment delay and is analyzed as a due process claim, we nevertheless apply the test established in Taranovich … . …

The Appellate Division “assume[d], arguendo, that the People failed to establish ‘good cause’ for the ‘protracted’ preindictment delay” … . However, some examination of the reason for the delay is required. Instead of attempting to evaluate the good faith reasons for the various periods of delay, the Appellate Division’s conclusion that the second factor favored Mr. Johnson is based upon an assumption for the sake of argument. …

Turning to the third factor, the “nature” of the underlying crime can refer to both its severity and, relatedly, the complexity and challenges of investigating the crime and gathering evidence to support a prosecution … . … Here, the Appellate Division held that its assumption that the People lacked good cause compelled the result that the “third factor[ ] favors[s] the defendant.” The crime here—the sexual assault of a minor found unresponsive on a city street—is quite serious. The nature of the crime here is directly related to the issues of complexity and may, therefore, account for some of the delay: the victim’s severe intoxication and lack of memory of the assault rendered her unable to identify her attacker. It is not clear on what basis the court concluded that its assumption of lack of good faith led to the conclusion that the third factor favored Mr. Johnson, but that conclusion, apparently based solely on that assumption with no analysis of the relevant concerns, is not supportable. …

In analyzing factor five, the Appellate Division held that because Mr. Johnson pled guilty only to rape in the second degree … , which depends solely on the age difference between the defendant and the victim, “the preindictment delay could not have ‘impaired’ defendant’s ability to defend himself on the charge of which he was convicted” … . This was error. When an indictment contains multiple counts, if delay impacts the defendant’s ability to defend one count, it may weaken that defendant’s position in plea bargaining, potentially adversely impacting the resulting plea … . Thus, the appellate court must consider prejudice measured against all counts pending when the dismissal motion is made, not merely against the crime of conviction. People v Johnson, 2022 NY Slip Op 06537, CtApp 11-17-22

Practice Point: Here the defendant pled guilty after an eight-year pre-indictment delay and the appellate division affirmed. The Court of Appeals reversed, finding the appellate division’s application of the “Taranovich” framework for determining whether a defendant’s constitutional right to a speedy trial has been violated seriously flawed. The Court of Appeals explained the flaws and remitted the matter to the appellate division for another speedy-trial analysis. The Court of Appeals noted that, where a defendant is charged with multiple counts, whether the delay impaired the defense must take into account all the charged counts, not just the count to which defendant pled guilty.

 

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THE SUPERIOR COURT INFORMATION (SCI) DID NOT INCLUDE AN OFFENSE CHARGED IN THE FELONY COMPLAINT OR A LESSER INCLUDED OFFENSE; THE SCI WAS THEREFORE JURISDICTIONALLY DEFECTIVE; THE ERROR NEED NOT BE PRESERVED FOR APPEAL (SECOND DEPT).

​The Second Department, reversing defendant’s conviction and vacating the plea, determined the superior court information (SCI) was jurisdictionally defective because it did not include an offense charged in the felony complaint or a lesser included offense of an offense charged in the felony complaint:

The defendant was charged, by felony complaint, with one count of course of sexual conduct against a child in the first degree under Penal Law § 130.75(1)(b), and one count of endangering the welfare of a child under Penal Law § 260.10(1). He waived indictment by a grand jury and entered a plea of guilty under a superior court information to one count of course of sexual conduct against a child in the second degree under Penal Law § 130.80(1)(a). …

The single count in the superior court information was not an “offense for which the defendant [had been] held for action of a grand jury” (CPL 195.20), in that it was not an offense charged in the felony complaint or a lesser included offense of an offense charged in the felony complaint … . Thus, the superior court information was jurisdictionally defective. This defect survives the defendant’s failure to raise this claim in the Supreme Court, his plea of guilty, and his waiver of the right to appeal … . People v Mendoza, 2022 NY Slip Op 06499, Second Dept 11-16-22

Practice Point: A superior court information (SCI) which does not include an offense charged in the felony complaint or a lesser included offense is jurisdictionally defective and the error need not be preserved for appeal.

 

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PETITIONER NYC FIREFIGHTER WAS DENIED ACCIDENTAL DISABILITY RETIREMENT (ADR) BENEFITS WITHOUT ANY EXPLANATION IN THE MEDICAL BOARD’S FINDINGS; THE MATTER WAS REMITTED FOR A NEW DETERMINATION BASED ON A RECORD ADEQUATE FOR REVIEW (FIRST DEPT).

The First Department, annulling the denial of accidental disability retirement (ADR) benefits in this firefighter-disability case, determined that the Medical Board’s failure to explain the reasons for its conclusion there was no accident and the injuries were not debilitating required remittal to the Medical Board and a new determination by the Board of Trustees with a record adequate for review:

… [T]he Medical Board found petitioner to be disabled on account of the left shoulder injuries he sustained on March 22, 2018. However, citing “inconsistencies” and a “lack of witnessed accounts . . . that would suggest . . . an accident,” the Board denied petitioner an ADR benefit. When the insufficient explanation was raised before the Board of Trustees, they acknowledged that a witness statement was not necessary, and stated that they did not understand what the Medical Board was referring to with regard to inconsistencies in the manner of petitioner’s injuries. Nevertheless, when the Board of Trustees reconsidered the matter, it simply took a vote on petitioner’s application without any deliberation or indication as to why he had been denied an ADR benefit, issuing a conclusory denial without any explanation as to why they had adopted the Medical Board’s unsupported statements about alleged inconsistencies concerning the nature of petitioner’s injuries.

The Medical Board failed to provide any factual basis concerning the alleged inconsistencies and why it did not believe petitioner’s injuries to be accidental. Further, the determination of the Medical Board was devoid of any articulated basis for its conclusion that the limitations of petitioner’s cervical and lumbar spine were not a debilitating or incapacitating condition for performing the duties of a firefighter. The failure to set forth an adequate statement of the factual basis for the determination forecloses the possibility of fair judicial review … . Matter of Reynolds v New York City Fire Pension Fund, 2022 NY Slip Op 06330, First Dept 11-10-22

Practice Point: Here the injured NYC firefighter was denied accidental disability retirement (ADR) but the Medical Board did not give any reasons for its conclusion. The findings were annulled and the matter remitted for a new determination and the creation of an adequate record for review.

 

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THE SIX-MONTH PERIOD FOR REFILING A COMPLAINT AFTER DISMISSAL (CPLR 205(A)) BEGAN TO RUN ONLY WHEN THE APPEAL OF THE DENIAL OF THE MOTION TO VACATE THE DISMISSAL WAS EXHAUSTED (FOURTH DEPT).

​The Fourth Department, reversing Supreme Court, determined the six-month period for filing a new complaint after dismissal started to run when the appeal of the denial of the motion to vacate the dismissal was exhausted:

Where a plaintiff has sought to appeal as of right from the denial of a motion to vacate the dismissal of its action, the action terminates for purposes of CPLR 205 (a) when the appeal “is truly ‘exhausted,’ either by a determination on the merits or by dismissal of the appeal, even if the appeal is dismissed as abandoned … . “Here, the dismissal of the 2012 action “did not constitute a final termination of that action within the meaning of CPLR 205 (a) because plaintiff’s predecessor in interest was statutorily authorized to file a motion to vacate [the dismissal] and to appeal from the denial of that motion” … . The 2012 action thus terminated for purposes of CPLR 205 (a) on November 30, 2018, when this Court dismissed the appeal and plaintiff’s predecessor in interest thereby exhausted its right of appeal … . Inasmuch as the instant action was commenced within six months of November 30, 2018, we conclude that it was timely commenced. MTGLQ Invs., LP v Zaveri, 2022 NY Slip Op 06335, Fourth Dept 11-10-22

Practice Point: The six-month period for refiling a complaint after dismissal (CPLR 208(a)) begins to run only after the appeal from the denial of a motion to vacate the dismissal is exhausted.

 

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DIRECT APPEAL, AS OPPOSED TO AN ARTICLE 78, WAS APPROPRIATE IN THIS CONTEMPT PROCEEDING; MOTHER SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO ARGUE AGAINST THE CONTEMPT ADJUDICATIONS (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined direct appeal of the contempt adjudications in this custody matter, as opposed to an Article 78 action, was appropriate under the circumstances. The contempt adjudications were vacated because mother was not given the opportunity to argue she should not be held in contempt:

… [T]he mother’s challenge to the summary contempt adjudications is properly raised via direct appeal from the order under the circumstances of this case. Although a direct appeal from an order punishing a person summarily for contempt committed in the immediate view and presence of the court ordinarily does not lie and a challenge must generally be brought pursuant to CPLR article 78 to allow for development of the record (see Judiciary Law §§ 752, 755 …), an appeal from such an order is appropriately entertained where, as here, there exists an adequate record for appellate review … .

With respect to the merits, “[b]ecause contempt is a drastic remedy, . . . strict adherence to procedural requirements is mandated” … . Here, we conclude that the court committed reversible error by failing to afford the mother the requisite “opportunity, after being ‘advised that [she] was in peril of being adjudged in contempt, to offer any reason in law or fact why that judgment should not be pronounced’ ” … . S.P. v M.P., 2022 NY Slip Op 06377, Fourth Dept 11-10-22

Practice Point: A contempt adjudication based upon actions in the court’s presence are usually properly contested in an Article 78 proceeding. Under the circumstances here, direct appeal was appropriate. The contempt adjudications were vacated because mother (in this custody proceeding) was not given the opportunity to contest them.

 

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