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Conditioning Plea Offer Upon Withdrawal of a Constitutional Speedy Trial Motion Is an Inherently Coercive Mode of Proceedings Error

The Third Department determined that the People’s conditioning of a plea bargain on the defendant’s withdrawal of his constitutional speedy trial motion was a mode of proceedings error requiring reversal:

…[T]he Court of Appeals has recently cited to People v Blakley (34 NY2d at 315) as an example of the “mode of proceedings” exception to the preservation rule (People v Hanley, 20 NY3d 601, 604, 605 n 2 [2013]). In that case, the Court held that conditioning a plea on a waiver of a constitutional speedy trial claim is “inherently coercive” (People v Blakley, 34 NY2d at 313). The narrow mode of proceedings exception speaks to fundamental flaws that implicate “rights of a constitutional dimension that go to the very heart of the process” … . Where, as in Blakley, the People condition a plea offer on the defendant’s waiver of his or her constitutional speedy trial claim, the integrity of the judicial process has been undermined … .

Here, the People expressly conditioned the plea offer on defendant’s withdrawal of his constitutional speedy trial motion, while the hearing on this issue was still pending. To make matters worse, the offer was set to expire as soon as the hearing resumed … . This is the type of prosecutorial bartering expressly prohibited as “inherently coercive” in People v Blakley (34 NY2d at 313). A trial court has a core obligation to recognize and prevent such an unfair tactic, but here the court simply reiterated the impermissible condition of the plea and waiver … . People v Wright, 2014 NY Slip Op 04976, 3rd Dept 7-3-14

 

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Court’s Erroneous Jury Instruction Re: State’s Territorial Jurisdiction Over the Alleged Crime Was Not a Mode of Proceedings Error—Objection Is Required to Preserve the Issue for Appeal

The First Department determined that the court’s erroneous jury instruction concerning the state’s terretorial jurisdiction over the case, as opposed to whether the state actually had territorial jurisdiction, required preservation by objection:

The trial court instructed the jury that the prosecution was required to establish the State’s territorial jurisdiction by a preponderance of evidence. As the People concede, the charge was erroneous in this regard . On the contrary, the People were required to establish the State’s territorial jurisdiction by proof beyond a reasonable doubt (see People v McLaughlin, 80 NY2d at 470). Moreover, territorial jurisdiction is not waivable (id. at 471). Our analysis, however, does not end with a citation to McLaughlin. The issue before us involves the trial court’s charge on jurisdiction as opposed to jurisdiction itself. Although a challenge to a court’s territorial jurisdiction cannot be waived, a claim of error in a court’s instructions on the subject requires preservation by way of an appropriate objection at the court of first instance. Nonetheless, the requirement of preservation is subject to an exception that exists for “mode of proceedings” errors that consist of the most fundamental flaws implicating jurisdictional matters or constitutional rights that go to the very heart of the criminal justice process … . Defendant asserts that the mode of proceedings exception applies here. People v Carvajal (6 NY3d 305 [2005]), a case involving an interstate drug operation, is illustrative. In Carvajal, the Court noted that the defendant had “relinquished his opportunity to hold the People to their burden of proof, and did not preserve his current contention that the jury should have decided whether the People proved jurisdiction beyond a reasonable doubt” (id. at 311-312). Citing People v Greenberg (89 NY2d 553 [1997]), the Carvajal Court aptly observed that “a defendant’s failure to request a jury charge on territorial jurisdiction amounts to a waiver of a jury charge claim, that failure does not amount to waiver of the fundamental question whether – as a matter of law – this State has the power to hear the case” (id. at 312). In this case, it is undisputed that defendant did not object to the trial court’s erroneous charge on the burden of proof with respect to territorial jurisdiction. Guided by Carvajal, we find that defendant was required, but failed, to preserve his present challenge to the trial court’s charge on jurisdiction.  People v Polk, 2014 NY Slip Op 04561, 1st Dept 6-19-14

 

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Appeal Rendered Academic by Failure to Move for a Preliminary Injunction Pending Appeal

The Second Department determined the appeal had been rendered academic because the appellant did not move for a preliminary injunction pending appeal and the related development project had been completed:

In order to preserve the status quo pending the determination of this appeal, the petitioner/plaintiff was required to move in this Court pursuant to CPLR 5518 for a preliminary injunction pending appeal, prohibiting the development of the subject real property. Since the petitioner/plaintiff failed to do so, it failed to preserve its rights pending appellate review. In the absence of a preliminary injunction issued pursuant to CPLR 5518, nonparty 405 Hotel, LLC, purchased and redeveloped the subject property, and a hotel is now operated thereon. By virtue of this change in the underlying circumstances, this Court has been prevented “from rendering a decision that would effectively determine an actual controversy” … .  Matter of Yeshiva Gedolah Academy of Beth Aaron Synogogue v City of Long Beach, 2014 NY Slip Op 04502, 2nd Dept 6-18-14

 

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Writs of Coram Nobis Alleging Ineffective Assistance Not Available In the Three Specific Cases Before the Court Involving the Failure to File Notices of Appeal and the Failure to Make a “Leave to Appeal” Application to the Court of Appeals

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a partial dissent, determined that a writ of coram nobis was not available to two defendants who alleged their attorneys failed to file timely notices of appeal, and to a third defendant who alleged his attorney's failure to make a criminal “leave to appeal” application to the Court of Appeals.  The opinion explains the history of the use of “writs of coram nobis” in this context. People v Andrews, 2014 NY Slip Op 04233, CtApp 6-12-14

 

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Where It Is Possible Jurors Relied On an Illegal Ground a General Verdict Must Be Set Aside, Even If Alternative Legal Grounds Were Provided to the Jury

The Second Department determined that the inclusion on the verdict sheet of an offense that was not a designated felony under Mental Hygiene Law 10.03 (f) warranted an new trial, even though no objection was raised:

Generally, where no objection to an alleged error is advanced at trial, the objection is unpreserved for appellate review … . However, the inclusion on the verdict sheet of a crime that was not a designated felony within the meaning of Mental Hygiene Law § 10.03(f) presents such a fundamental error that the appellant’s failure to object does not bar our review of the issue in the exercise of discretion … . At trial, the State was required to establish by clear and convincing evidence that the appellant was a detained sex offender who suffered from a mental abnormality (see Mental Hygiene Law § 10.07[d]). “It is an established rule of Supreme Court jurisprudence that a general verdict of guilt must be set aside where the jurors in reaching their verdict may have relied on an illegal ground or on an alternative legal ground and there is no way of knowing which ground they chose” … . “Thus, the Supreme Court has consistently vacated general verdicts where one of the choices afforded to the jury was to find guilt on an unconstitutional theory. It has rejected the contention that the verdict should be upheld because the fact finder presumably based it on an alternative constitutional ground” … . Matter of State of New York v Todd L, 2014 NY Slip Op 04205, 2nd Dept 6-11-14

 

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Records of Criminal Proceedings Sealed Pursuant to Criminal Procedure Law 160.50 Can Be Accessed by the Commission on Judicial Misconduct Investigating the Alleged Misconduct of a Judge—The Law Surrounding the Sealing of Criminal Records Explained—Mootness Doctrine Explained

In a full-fledged opinion by Judge Rivera, the Court of Appeals determined that the Commission on Judicial Conduct is authorized under the Judiciary Law to request records of a criminal matters sealed under Criminal Procedure law 160.50 for use in its investigations.  In the course of the opinion, the court explained why the case before it could not be considered moot (the Court of Appeals can hear only “live”cases). The appellant is an attorney who had been charged, along with a judge, with crimes related to the judge's election campaign.  The Commission sought the sealed records of those criminal proceedings, which had ended in dismissal and acquittal.  The appellant opposed release of the records:

…[A]bsent “extraordinary circumstances” …, a specific grant of power …, or the existence of a legal mandate the nature of which would be impossible to fulfill without unsealing criminal records …, sealed criminal records may only be accessed by individuals and agencies specifically enumerated, and “narrowly defined” in CPL 160.50 (1) (d) … .

Given the Commission's broad powers under the Judiciary Law, specifically its authority under Judiciary Law § 42 (3) to request and receive a wide range of records and data, and its constitutional duties and obligations to ensure the integrity of the judicial system by investigating and sanctioning judicial misconduct, we conclude that the Commission may obtain documents sealed pursuant to CPL 160.50. Continued public confidence in the judiciary is of [*9]singular importance, and can be furthered only by permitting the Commission access to information that allows it to quickly identify and respond to judicial misconduct, including criminal behavior, abuse of power, corruption, and other actions in violation of laws applicable to judges. Matter of New York State Commission on Jud Conduct v Rubenstein, 2014 NY Slip Op 04118, CtApp 6-10-14

 

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Record Did Not Support Striking the Answer for the Spoliation of Evidence

The First Department, over a partial and a full dissent, determined the extreme sanction of striking defendant’s answer and instructing the jury the lost evidence would have supported plaintiff’s position was not appropriate under the facts. Electronically stored information (ESI) had been lost.  The court rejected the argument that the failure to issue a written “litigation hold” to preserve the evidence constituted per se gross negligence.  Instead the court found that the record supported at most simple negligence.  The court explained the operative criteria and its appellate powers in this context:

“A party seeking sanctions based on the spoliation of evidence must demonstrate: (1) that the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and finally, (3) that the destroyed evidence was relevant to the [moving]; party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense” … .

Further, “[w];hile discovery determinations rest within the sound discretion of the trial court, the Appellate Division is vested with a corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse” … . * * *

Because the record supports, at most, a finding of simple negligence against the MP defendants, plaintiffs must prove that the lost ESI would have supported their claims … . This they have failed to do … . Pegasus Aviation I Inc, v Varig Logistica SA, 2014 NY Slip Op 04047, 1st Dept 6-5-14

 

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Loss of Small Portion of Stenographic Record Did Not Require Reversal

The First Department noted that the loss of some of the stenographic minutes of a trial did not require reversal. The trial court had conducted a reconstruction hearing:

The loss of a relatively small portion of the stenographic record does not require reversal of defendants’ convictions … . The court conducted a reconstruction hearing at which various participants in the trial presented their recollections, to the extent possible, of the brief portions of the trial for which minutes are not available. When viewed in light of the presumption of regularity (id. at 796), the facts adduced at the reconstruction hearing regarding the missing pages support an inference that the missing minutes would not have revealed any significant appellate issues. People v Negron, 2014 NY Slip Op 03752, 1st Dept 5-22-14

 

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Violation of Right to Counsel Deemed Harmless Error

The Second Department noted that a violation of a defendant’s right to counsel is subject to a harmless error analysis.  Here the police were contacted by an attorney who told the police he was representing the defendant and not to question him if and when he is apprehended.  The court determined defendant’s right to counsel was violated when the police questioned him, but found the error harmless:

The right to counsel attaches, inter alia, when an attorney who is retained to represent a suspect enters the matter under investigation … . When an attorney enters a case to represent the accused, the police may not question the accused about that matter regardless of whether the person is in police custody … . “An attorney enters’ a case by actually appearing or directly communicating with the police by telephone” … . The issue of whether an [*2]attorney has entered a case is not dependent upon whether that attorney has been personally retained by the defendant, or has instead been retained by a member of the defendant’s family … . * * *

A violation of the indelible right to counsel does not automatically constitute reversible error. Instead it is reviewed under the harmless error doctrine for constitutional violations … . Constitutional errors are “considered harmless when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict” … . If no such possibility exists, the error is deemed to be harmless beyond a reasonable doubt … . People v Ellis, 2014 NY Slip Op 03530, 2nd Dept 5-14-14

 

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Pretrial Motion to Dismiss the Accusatory Instrument, Arguing the Facts Alleged Did Not Constitute the Crime Charged, Preserved the Legal-Sufficiency Issue for Appeal, Despite the Absence of a Motion for a Trial Order of Dismissal on the Same Ground

The Court of Appeals, in a full-fledged opinion by Judge Smith, with three judges dissenting, determined defendant's pretrial motion to dismiss the charges, arguing that the facts alleged by the People did not constitute the crime charged, preserved the “legal sufficiency” issue for appeal, despite the absence of a motion for a trial order of dismissal on the same ground. The defendant was charged with trespass and resisting arrest. The defendant had permission to be on the property.  County court had dismissed the trespass conviction, but upheld the resisting arrest conviction.  The Court of Appeals determined the arresting officer, because of prior dealings with the defendant, did not have probable cause to believe the defendant was trespassing, therefore the resisting arrest charge could not stand either.  The bulk of the majority opinion, and both dissenting opinions, dealt with the preservation issue.  The majority took great pains to explain that this holding did not affect the two leading cases concerning the preservation requirements re: the insufficiency of trial evidence (People v Gray, 86 NY2d 10; People v Hines, 97 NY2d 56):

As a general matter, a lawyer is not required, in order to preserve a point, to repeat an argument that the court has definitively rejected … . When a court rules, a litigant is entitled to take the court at its word. Contrary to what the dissent appears to suggest, a defendant is not required to repeat an argument whenever there is a new proceeding or a new judge.

It is true that a challenge to the sufficiency of the accusatory instrument at arraignment is conceptually different from a challenge based on the proof at trial, and that often an issue decided in one proceeding will not be the same as the issue presented in another. But here the issue was the same. People v Finch, 2014 NY Slip Op 03424, CtApp 5-13-14

 

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