You are here: / Appeals
,

Indictment Rendered Duplicitous By Trial Evidence Is Not a Mode of Proceedings Error—The Error Must Therefore Be Preserved by an Objection to Be Raised on Appeal

Resolving a split among the appellate division departments, the Court of Appeals determined that an indictment rendered duplicitous by the trial evidence is not a “mode of proceedings” error and the error must therefore be preserved in order to raise it on appeal. The indictment charged one count of attempted murder.  But the evidence presented two different occurrences to which the single count could apply:

The [1st] and [2nd] Departments have held that where it is claimed that the trial evidence has rendered a count duplicitous, the issue must be preserved for review … . The [4th] Department, however, has held that duplicity created by trial evidence violates a defendant’s right to be tried and convicted only of the crimes and theories charged in the indictment, which is a fundamental and non-waivable right, and that such error also violates a defendant’s right under CPL 310.80 to a unanimous verdict, and that preservation is unnecessary … .

As we held in People v Alvarez (20 NY3d 75, 81 [2012], cert denied — US &mdash, 133 S Ct 1736 [2013]), in relation to the constitutional right to a public trial, “preservation of public trial claims is still required. Bringing a public trial violation to a judge’s attention in the first instance will ensure the timely opportunity to correct such errors” … . Therefore, defendant’s argument that he need not preserve an issue that has constitutional significance is unconvincing.

Any uncertainty could have easily been remedied with an objection during opening statements, the witness testimony, or to the jury charge. Requiring preservation will prevent unnecessary surprise after the conduct of a complete trial. Accordingly, we hold that issues of non-facial duplicity, like those of facial duplicity, must be preserved for appellate review. People v Allen, 2014 NY Slip Op 08222, CtApp 11-25-14

 

,

The Failure of the Record to Indicate Whether Notes from the Jury Were Properly Addressed by the Court Constitutes a “Mode of Proceedings” Error

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a partial dissent, determined the failure of the record to indicate whether notes from the jury were properly addressed by the court (pursuant to People v O’Rama, 88 NY2d 270) constituted “mode of proceedings” errors requiring reversal in the absence of preservation:

Although not every violation of CPL 310.30 is immune from normal preservation principles …, a failure to apprise counsel about the specific contents of a substantive note from a deliberating jury violates the fundamental tenants of CPL 310.30 and qualifies as a mode of proceedings error … . The record therefore must indicate compliance with adequate procedures under O’Rama because reviewing courts “cannot assume” that the proper procedure was utilized when the record is devoid of information as to how jury notes were handled … . The “presumption of regularity” … cannot salvage an … error of this nature … . People v Silva, 2014 NY Slip Op 08215, CtApp 11-24-14

 

,

Waiver of Right to Appeal Invalid Despite the Signing of a Written Waiver

The Second Department determined defendant’s waiver of his right to appeal was not valid because the right was not adequately explained and because there was no indication that the written waiver signed by the defendant was translated for him:

…[T]he record does not reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal … . The Supreme Court’s statements at the plea allocution improperly suggested that waiving the right to appeal was mandatory rather than a right which the defendant was being asked to voluntarily relinquish, and the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal … . Moreover, there is no indication in the record that the defendant understood the distinction between the right to appeal and other trial rights that are forfeited incident to a plea of guilty … . Although the defendant did sign a written waiver of his right to appeal, nothing in the record demonstrates that the document was translated for the defendant, who required the use of a Spanish language interpreter, before it was presented to him for signature … . In any event, the court’s terse colloquy at the plea allocution, which included the language suggesting that the waiver of the right to appeal was mandatory, failed to sufficiently advise the defendant of the nature of the right to appeal … . People v Guarchaj, 2014 NY Slip Op 08044, 2nd Dept 11-19-14

 

, ,

Defendant Who Pled Guilty Without Counsel and Who Was Not Advised of His Right to Appeal May Raise a “Deprivation of the Right to Counsel” Claim In a Motion to Vacate the Judgment of Conviction, Even Though the Issue Could Have Been Raised on Direct Appeal (No Appeal Was Perfected)

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined the defendant should be allowed to raise the argument that he was deprived of his right to counsel in a motion to vacate the judgment of conviction pursuant to Criminal Procedure Law (CPL) 440.10, even though the issue could have been raised on direct appeal.  The defendant had appeared pro se, had pled guilty and did not appeal.  The judge did not advise the defendant of his right to appeal:

It is correct as a general matter that, when the record is sufficient to permit review of an issue on direct appeal, a defendant who either has not appealed his conviction or, having appealed, has failed to raise that issue is barred from later asserting it as a basis for post-conviction relief … .  * * *

But there is an obvious risk of unfairness in applying this procedural bar where the ground that the defendant seeks to raise is that he was deprived of his right to counsel. If he was indeed deprived of that right, that very deprivation may well have led him either not to appeal or not to have presented the issue to an appellate court. A defendant who has wrongly been deprived of a lawyer can hardly be blamed for failing to follow customary legal procedures. * * *

We conclude, in short, that defendant was not barred from raising his right to counsel claim in a CPL 440 motion. We express no opinion on the merits of the claim.  People v Grubstein, 2014 NY Slip Op 07924, CtApp 11-18-14

 

,

Matter First Raised In a Reply Affirmation Is Not Properly Before an Appellate Court

The First Department affirmed the denial of defendants’ motion for summary judgment noting that a matter raised for the first time in defendants’ reply affirmation is not properly before an appellate court.  Anderson v Pena, 2014 NY Slip Op 07948, 1st Dept 11-18-14

 

,

Waiver of Appeal Invalid/The Way Defendant Was Holding a Cigarette Justified the Vehicle Stop/No Probable Cause for Warrantless Search of Trunk of Defendant’s Car

The First Department determined (1) the waiver of appeal, which included a signed written waiver, was not valid; (2) the stop of defendant’s vehicle, the removal of the occupants, and the search of the interior of the car was justified by the police officer’s belief defendant was smoking a marijuana cigarette held between his thumb and index finger and the observation of an empty glassine envelope; and (3) the warrantless search of the trunk where ecstasy was found was not justified by probable cause:

A waiver of the right to appeal is not effective unless it is apparent from the record that it was made knowingly, intelligently and voluntarily … . For a waiver to be effective, the record must demonstrate that the defendant has a full appreciation of the consequences of the waiver …, including an understanding “that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty … .

Here, the court never adequately explained the nature of the waiver, the rights the defendant would be waiving or that the right to appeal was separate and distinct from the rights automatically forfeited upon a plea of guilty. Accordingly, the waiver was invalid and unenforceable … . The written waiver signed by defendant was no substitute for an on-the-record explanation of the nature of the right to appeal … . In addition, the court’s statement that defendant was “going to be required” to waive his right to appeal could have misled him into believing that he had no choice but to do so … . * * *

…Officer Rivera, an experienced policeman who had participated in approximately 30 arrests involving marijuana, testified to the court’s satisfaction that, in his opinion and experience, the manner in which defendant was handling the cigarette indicated that it was a marijuana cigarette. “[M]uch weight must be accorded the determination of the suppression court with its peculiar advantages of having seen and heard the witnesses” … . That Rivera was not “certain” that defendant was smoking marijuana is of no moment, since “[t]he standard for [a forcible stop is] merely reasonable suspicion, not absolute certainty or even probable cause” … .

Defendant effectively concedes that the police were entitled to search in the area of the car where Officer Rivera claims to have smelled marijuana, but not anywhere else, and certainly not in the trunk. This, he argues, is because any grounds the police may have had to believe that the trunk contained drugs were belied by the lack of evidence that they existed anywhere else in the car.

Indeed, there was scant evidence of drugs in the car. After approaching the car, Rivera never saw the marijuana cigarette that he claimed he saw when he drove past defendant’s car, and he was equivocal about whether he smelled burning or unburnt marijuana. Further, the glassine envelope that Officer Ali uncovered was empty, and it was not until later that day, after defendant and his companions were arrested, that Rivera concluded that it contained marijuana. Rivera also conceded that defendant did not appear to be under the influence.  * * * Accordingly, we find that the police lacked probable cause to search the trunk, and that the Ecstasy found there should have been suppressed.  People v Ramos, 2014 NY Slip Op 07931, 1st Dept 11-18-14

 

, , ,

Inadvertently Disseminated Investigative Report [Concerning a Doctor’s Conduct With Respect to Plaintiff’s Decedent] Generated by the Office of Professional Medical Conduct Is Not Discoverable—Matter Must Be Returned to the “Status Quo Prior to the [Inadvertent] Disclosure”

In a wrongful death action, the Fourth Department determined that a report generated by the Office of Professional Medical Conduct (OPMC) concerning an investigation into decedent’s death was not discoverable pursant to the Public Health Law and a protective order pursuant to CPLR 3103 should have been granted in its entirety. The report was inadvertently disclosed by the plaintiff to all the defendants.  Supreme Court ruled only that the report could not be further disseminated.  The Fourth Department noted that Supreme Court’s order was appealable pursuant to CPLR 5701(a)(20(v) even though the denial of the motion for a protective order was without prejudice to renew:

…[W]e conclude that Supreme Court erred in granting defendants’ motion only in part, and should have granted the motion in its entirety. “Pursuant to Public Health Law § 230 (10) (a) (v), the files of OPMC concerning possible instances of professional misconduct are confidential, subject to [certain] exceptions,” including Public Health Law § 230 (9), which are not applicable here … . Inasmuch as there is no evidence in the record that the OPMC proceeded past the interview phase of [the doctor’s] alleged misconduct with respect to decedent, the OPMC report is not discoverable as a matter of law (see § 230 [10] [a] [v]). Thus, we conclude that the court erred in failing to restore this matter to the “status quo prior to the[inadvertent] disclosure”… . Kirby v Kenmore Mercy Hosp, 2014 NY Slip Op 07804, 4th Dept 11-14-14

 

,

Insufficient Break Between Unwarned Statement and Subsequent Warned Statement—All Statements Suppressed/Appellate Court Cannot Consider Argument Not Raised by the People at Trial and Not Considered by the Trial Court

The Second Department, over a dissent, determined that there was not a sufficient break between the unwarned portion of defendant’s statement and the subsequent warned statements to remove the taint of the initial failure to give the Miranda warnings.  The court noted that it was precluded from considering any theory supporting the admissibility of subsequent warned statements because the theory was not presented to the trial court by the People and was not considered by the trial court:

“[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a single continuous chain of events, there is inadequate assurance that the Miranda warnings were effective in protecting a defendant’s rights, and the warned statement must also be suppressed” … . On this record …, it is clear that defendant’s two written statements, although produced after she had been Mirandized, were “part of a single continuous chain of events” that included the detective’s initial pre-warning inquiries and statement, defendant’s pre-warning acknowledgment that she knew why she had been brought in, and her pre-warning statement that she and the other alleged perpetrator had asked to use the victim’s phone outside the latter’s house. There was no time differential between the Miranda violation and the Mirandized interview that immediately followed, giving rise to the two written statements; the same police personnel were involved before and after the warnings; there was no change in the location or nature of the interrogation; and defendant had never indicated a willingness to speak to the police before the Miranda violation. Further, although the pre-warning exchange was very brief and did not include any admission by defendant of criminal conduct, her unwarned statements plainly tended to incriminate her by acknowledging that she knew something about the murder of an elderly woman and by placing herself at the scene of the crime with the victim and the other alleged perpetrator … .

Under the foregoing circumstances established by the record, it cannot be said that there was, between the Miranda violation and the making of the subsequent Mirandized written statements, such a “definite, pronounced break in the interrogation to dissipate the taint from the Miranda violation” … by “return[ing] [defendant], in effect, to the status of one who is not under the influence of questioning” … . * * *

We note that we are precluded from considering whether the break of at least 2 hours and 45 minutes between the completion of defendant’s second written statement and the commencement of her videotaped statement (which began with renewed Miranda warnings administered by the assistant district attorney) sufficed to attenuate any taint from the commencement of the questioning before she was initially Mirandized and, therefore, to render the videotaped statement admissible. The hearing court’s decision denying suppression did not consider any such theory, which had not been raised by the People in opposition to the motion seeking suppression of all three recorded statements. Accordingly, under CPL 470.15(1), we are without power to affirm on the ground that the videotaped statement was admissible and that its admission rendered harmless the error in admitting the written statements … . People v Daniel, 2014 NY Slip Op 07568, 1st Dept 11-6-14

 

,

Criteria for Court Review of Agency Action Explained

In affirming the town’s approval of a subdivision plan, the Third Department explained its review powers:

…”[i]t is not the province of the courts to second-guess thoughtful agency decisionmaking and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence” … . Moreover, “[w]hile judicial review must be meaningful, the courts may not substitute their judgment for that of the agency for it is not their role to weigh the desirability of any action or [to] choose among alternatives” … . Matter of Dugan v Liggan, 2014 NY Slip Op 07404, 3rd Dept 10-30-14

 

,

Guilty Plea Based on a Sentence Promise that Neither the Court Nor the Parties Realized Was Illegal Requires Vacation of the Conviction in the Absence of Preservation—Notwithstanding the Fact the Sentence Was Ultimately Rendered Legal by an Enhancement Imposed Because the Defendant Violated the Terms of His Release Pending Sentencing

The First Department, in a full-fledged opinion by Justice Renwick, over a two-justice dissent, determined that a guilty plea cannot stand where neither the court nor the parties was aware that the agreed upon sentence was illegal, even though the sentence was rendered “legal” by an enhancement.  The sentence promise was three years, but, given the defendant’s prior record, the minimum sentence he could legally receive was six years. Because the defendant was found to have violated the terms of his release pending sentencing, he was ultimately sentenced to six years as an enhanced sentence. The court summarized the facts and its ruling as follows:

The principal question presented here is whether a judgment of conviction, entered upon a guilty plea to a particular crime, may stand when the record discloses that neither the court nor the parties realized that the agreed upon sentence, to be imposed if defendant complied with the conditions of the plea, was illegal. Although defendant violated the conditions of his plea, and the enhanced sentence was legal, defendant is entitled to a plea vacatur for two fundamental reasons. First, defendant’s constitutional claim that his plea violated due process because it was induced by an illegal promise need not be preserved. Second, to accept a guilty plea induced by an illegal promise affects the fairness, integrity and public reputation of judicial proceedings as the defendant could not have had a full understanding of what the plea connotes and its consequences … or “exercised a voluntary and intelligent choice among the alternative courses of action open to the defendant” … . People v Williams, 2014 NY Slip Op 07458, 1st Dept 10-30-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy