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A PSYCHIATRIC EXAM IS A CRITICAL STAGE OF A PROSECUTION AT WHICH DEFENDANT HAS THE RIGHT TO COUNSEL; THE EXCLUSION OF DEFENSE COUNSEL FROM THE EXAM WAS NOT HARMLESS ERROR; CONVICTION REVERSED (CT APP).

The Court of Appeals, reversing defendant’s manslaughter conviction, determined the exclusion of defense counsel from the psychiatric exam by the People’s expert was not harmless error:

After defendant provided timely notice that he intended to present psychiatric evidence at trial, he was twice interviewed by a clinical psychologist engaged by the People (see CPL 250.10 [2], [3]). Although defense counsel was present at the first examination, the expert denied defense counsel admittance to the second examination. Over defense counsel’s objection that defendant’s right to counsel had been violated, the expert’s testimony was admitted at trial. On defendant’s appeal, the Appellate Division affirmed, holding that defendant’s constitutional right to counsel had been violated but that the error was harmless … . …

In Matter of Lee v County Ct. of Erie County (27 NY2d 432 [1971]), we held that defendants’ Sixth Amendment right to counsel applies at pre-trial psychiatric examinations “to make more effective [a defendant’s] basic right of cross-examination” … In Lee, we cited to United States v Wade’s (388 US 218 [1967]) definition of a critical stage of the prosecution as “‘any stage of the prosecution, formal or informal, in court or out, where’ ‘the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself'” … . We thus held that pretrial psychiatric examinations are a critical stage of the prosecution.

… The People—not the defendant—bear the burden of showing that “there was no reasonable possibility that the trial court’s admission” of that part of the expert’s testimony based on the uncounseled examination “affected the jury’s verdict” … . Under the circumstances of this case, the expert’s testimony at trial was based in part on the examination undertaken in violation of defendant’s constitutional right to counsel, and we cannot say that the error was harmless … . People v Guevara, 2021 NY Slip Op 04955, CtApp 9-9-21

 

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THE NOTICE OF APPEAL WAS TIMELY SERVED BUT WAS NOT TIMELY FILED WITH THE CLERK OF THE COURT; THE 3RD DEPARTMENT DISMISSED THE APPEAL; THE APPELLATE COURT HAS THE DISCRETION TO ALLOW A LATE FILING; MATTER REMITTED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined that, although the pro se inmate-petitioner did not timely file the notice of appeal, the notice was timely served and the Third Department could have exercised discretion to allow a late filing. The matter was remitted because the Third Department’s decision was silent about the reasons for dismissing the appeal:

… [P]etitioner argues that the Appellate Division should have applied a pro se inmate “mailbox rule” to deem the notice of appeal timely filed upon delivery to prison authorities for forwarding to the appropriate court.

CPLR 5515 (1) provides that an appeal is taken when, in addition to being duly served, the notice of appeal is “fil[ed] . . . in the office where the judgment or order of the court of original instance is entered.” The CPLR further clarifies that “papers required to be filed shall be filed with the clerk of the court in which the action is triable” (CPLR 2102 [a]). Thus, by its express terms, the CPLR indicates that filing occurs when the clerk’s office receives the notice of appeal. Indeed, “filing” has long been understood to occur only upon actual receipt by the appropriate court clerk … . A “mailbox rule” for filing would also contravene the clear distinctions between filing and service drawn by the legislature inasmuch as the CPLR directs that, unlike filing, “service by mail shall be complete upon mailing” (CPLR 2103 [b] [2]). .. * * *

… [T]he legislature has given courts the authority to excuse untimely filing under certain circumstances. CPLR 5520 provides that, “[i]f an appellant either serves or files a timely notice of appeal . . . , but neglects through mistake or excusable neglect to do another required act within the time limited, the court from or to which the appeal is taken . . . may grant an extension of time for curing the omission” (CPLR 5520 [a]). Matter of Miller v Annucci, 2021 NY Slip Op 04954, CtApp 9-9-21

 

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THE RECORD WAS NOT SUFFICIENT FOR THE APPEAL OF THE SORA RISK LEVEL CLASSIFICATION; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing County Court, determined the appeal of the Sex Offender Registration Act (SORA) risk level classification could not be heard because the record was not sufficient. The matter was remitted:

“Although the short form order utilized by County Court contains the ordered language required to constitute an appealable paper, the written order fails to set forth the findings of fact and conclusions of law required by Correction Law § 168-n (3)” … . “The hearing transcript is similarly deficient as it does not contain clear and detailed oral findings to support County Court’s risk level classification” … . The scant record before us is not sufficiently developed to enable this Court to make its own factual findings and legal conclusions — particularly with respect to the number of victims and the points assessed under risk factor three. Accordingly, County Court’s order is reversed, and this matter is remitted for further proceedings. People v Kwiatkowski, 2021 NY Slip Op 04934, Third Dept 9-2-21

 

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THE PEOPLE DID NOT DEMONSTRATE PROBABLE CAUSE FOR THE TRAFFIC STOP; THE 911 CALL WAS NOT PUT IN EVIDENCE AND THE RELIABILITY OF THE CALLER AND THE BASIS FOR THE CALLER’S KNOWLEDGE WERE NOT DEMONSTRATED; THE FACT THAT THE RELEVANT EVIDENCE WAS PRESENTED AT TRIAL WAS IRRELEVANT (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the People did not present sufficient evidence at the suppression hearing. Probable cause for the traffic stop was based on a 911 call. But no evidence was presented to demonstrate the reliability of the caller or the basis for the caller’s knowledge. The fact that the relevant evidence was presented at trial did not matter. The appeal focuses on the evidence presented at the suppression hearing:

… [T]he officer’s only justification for the stop was the dispatcher’s report that a 911 caller had asserted that one of the vehicle’s occupants possessed a “long gun.” Initially, defendant claims that the stop was invalid because possession of a “long gun” is lawful in New York. We reject that claim as meritless (see Penal Law 265.00 [22]). However, the People failed to introduce the 911 recording, failed to introduce any evidence indicating whether the 911 caller was an identified citizen informant or an anonymous tipster, and failed to offer any explanation of the basis of the caller’s knowledge. In sum, the People put forward no relevant information concerning the circumstances surrounding the call at the hearing. Contrary to the People’s suggestion that an appellate court can consider evidence subsequently admitted at trial to justify affirmance of an order denying suppression, “the propriety of the denial must be judged on the evidence before the suppression court” … . Therefore, on the record of the suppression hearing, “whether evaluated in light of the totality of the circumstances or under the Aguilar-Spinelli framework, the reliability of the tip was not established” … . People v Walls, 2021 NY Slip Op 04949, CtApp 9-2-21

 

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THE SMELL OF PCP PROVIDED PROBABLE CAUSE FOR THE SEARCH OF DEFENDANT’S VEHICLE; DEFENDANT’S APPELLATE COUNSEL WAS CHASTISED FOR FAILURE TO CALL THE COURT’S ATTENTION TO CONTRARY AUTHORITY, UNFOUNDED ASSERTIONS THAT THE APPEAL PRESENTED A MATTER OF FIRST IMPRESSION, AND UNFOUNDED ALLEGATIONS OF PERJURY, MISCONDUCT AND CIVIL RIGHTS VIOLATIONS AGAINST AN ARRESTING OFFICER (FOURTH DEPT).

THIS OPINION WAS VACATED ON JANUARY 28, 2022, AND REPLACED WITH 2022 NY Slip Op 00560

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, determined the police officer’s (Dorchester’s) testimony at the suppression hearing established probable cause to search defendant’s car based upon the smell of PCP, or, as the court described it, “olfactory detection of street-level PCP.” The opinion was as much directed to improprieties in the appellate brief as to  the “olfactory detection of PCP:”

“[A]s soon as I walked up to the vehicle,” Dorchester testified, “I could smell a really strong chemical odor that was familiar to myself as PCP.” Dorchester had received PCP training at the police academy; he regularly received updated training on PCP and other drugs; and he had encountered PCP and its distinctive smell “hundreds” of times over the course of his career as a police officer. Based on his training and experience, Dorchester testified, he immediately recognized the odor emanating from defendant’s vehicle as PCP. When pressed on whether he could have been smelling something else, Dorchester held firm: the smell of PCP, he explained, was “pretty distinct.” * * *

[I]t is astoundingly inaccurate for defendant’s brief to assert that “[t]his is a case of first impression.” Moreover, the representation in defendant’s brief that “none of the Appellate Divisions . . . has ever passed upon the question of whether the smell of PCP may, standing alone, constitute probable cause to search” is an unacceptable dereliction of counsel’s duty of candor to our Court, for the First Department has done precisely that in two separate cases … . And given that Sanchez [168 AD3d 584] involved a car search, the statement in defendant’s brief that “no appellate case law from this state . . . has approved the search of a vehicle based solely on the smell of PCP” is yet another misrepresentation of the caselaw. We take this opportunity to echo the First Department’s monition that “counsel has an obligation to bring adverse authority to [our] attention” … . * * *

… [D]efendant’s appellate brief levels serious allegations of perjury, official misconduct, and federal civil rights violations against officer Dorchester. The record, however, lacks any proof to substantiate appellate counsel’s accusations. It is one thing to suggest that Dorchester’s testimony was legally insufficient to justify the search … . But it is quite another thing to file a brief that directly, repeatedly, and unnecessarily accuses Dorchester of serious crimes without evidentiary support. Counsel’s “baseless assertions are shockingly irresponsible” … . People v Fudge, 2021 NY Slip Op 04801, Fourth Dept 8-26-21

 

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THE MAJORITY APPLIED THE DISCOVERY STATUTE IN EFFECT AT THE TIME THE ORDER TO TURN OVER THE ROSARIO MATERIAL ONE WEEK BEFORE TRIAL WAS MADE, FINDING THE ORDER PROPER; THE CONCURRENCE AGREED BUT ARGUED THE COURT SHOULD EXPLICITLY RULE THAT THE DISCOVERY STATUTE ENACTED IN 2019 SHOULD ALWAYS BE APPLIED PROSPECTIVELY (FOURTH DEPT).

The Fourth Department, over a concurrence, affirmed defendant’s conviction. One of the issues in the appeal was whether it was appropriate for the court to order the prosecution to turn over Rosario material one week before trial. The majority ruled the order was proper under the former law, CPL former 240.45. The concurrence agreed but argued the court should decide whether the current law, enacted in 2019 (see CPL 245.10 [1] [a]; 245.20) should always be applied prospectively:

We reject defendant’s contention that he was deprived of a fair trial by the prosecutor’s failure to produce a video-recorded statement of the victim until one week prior to trial. Defendant does not dispute that the recording constitutes Rosario material. Under the discovery rules in effect at the time of defendant’s trial, “[w]here, as here, [a] witness[ is] not called to testify at a pretrial hearing, Rosario material need not be disclosed until ‘[a]fter the jury has been sworn and before the prosecutor’s opening address’ ” ( … CPL former 240.45 [1] [a]). Neither party requested that this Court consider the retroactivity of the new discovery statute now in effect. People v Austen, 2021 NY Slip Op 04798, Fourth Dept 8-26-21

 

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THE JUDGE’S LAW CLERK WAS A DA WHO HAD WORKED ON DEFENDANT’S CASE; THE JUDGE SHOULD HAVE RECUSED HIMSELF FROM THE SENTENCING (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined the judge should have recused himself from the sentencing because his law clerk was a former DA who had worked on the case. The issue was not preserved but was considered in the interest of justice:

The defendant’s contention that the trial justice should have recused himself from presiding over the sentencing proceeding, on the ground that the justice’s law clerk was a former Queens County Assistant District Attorney who, in that capacity, had worked on the early stages of this case, is unpreserved for appellate review. We nevertheless reach this contention in the exercise of our interest of justice jurisdiction (see CPL 470.05[2]). For the reasons discussed in our decision and order on an appeal by the defendant’s codefendant (People v Hymes, 193 AD3d 975), the trial justice should have recused himself from presiding over the sentencing proceeding (see People v Suazo, 120 AD3d 1270).

Accordingly, we vacate the sentence imposed, and remit the matter to the Supreme Court, Queens County, for resentencing before a different Justice. People v McPhee, 2021 NY Slip Op 04723, Second Dept 8-18-21

 

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MURDER SECOND COUNTS WERE INCLUSORY CONCURRENT COUNTS OF MURDER FIRST AND SHOULD HAVE BEEN DISMISSED; FORMER APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ISSUE (SECOND DEPT).

The Second Department, reversing (modifying) County Court, determined the second degree murder counts should have been dismissed as inclusory concurrent counts of first degree murder, and the former appellate counsel was ineffective in failing to raise that issue:

… [F]ormer appellate counsel was ineffective for failing to contend on appeal that … the defendant’s convictions of murder in the second degree, and the sentences imposed thereon, must be vacated, and those counts of the indictment dismissed, because those charges are inclusory concurrent counts of the conviction of murder in the first degree … . People v Davis, 2021 NY Slip Op 04720, Second Dept 8-18-21

 

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THE DENIAL OF A MOTION TO SEAL A CRIMINAL CONVICTION IS CIVIL IN NATURE AND CAN BE APPEALED AS A MATTER OF RIGHT; HERE THE DEFENDANT’S MOTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (SECOND DEPT).

The Second Department, reversing County Court, determined defendant could appeal the denial of his motion to seal his conviction record because the sealing procedure is civil in nature. In addition, the Second Department held defendant was entitled to a hearing on the motion:

Although a motion pursuant to CPL 160.59 relates to a criminal matter, “it does not affect the criminal judgment itself, but only a collateral aspect of it—namely, the sealing of the court record,” and, therefore, is civil in nature … . As such, the defendant is entitled to appeal as of right from the subject order denying the 2020 motion, which was made upon notice to the People (see CPLR 5701[a][2][v] …). * * *

By using the word “shall,” the Legislature clearly and unambiguously provided that when the motion is not subject to mandatory denial under CPL 160.59(3) and the district attorney opposes the motion, the motion court does not have the discretion to dispense with the hearing requirement, even where, as here, the court had held a hearing on the defendant’s prior CPL 160.59 motion ,,, , Further, CPL 160.59 is a remedial statute, and remedial statutes should be interpreted broadly to accomplish their goals … . People v Bugge, 2021 NY Slip Op 04718, Second Dept 8-18-21

 

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SUPREME COURT SHOULD NOT HAVE DISMISSED THE COMPLAINT IN THIS SLIP AND FALL CASE ON THE GROUND THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT WAS UNOPPOSED; PLAINTIFF’S COUNSEL WAS UNDER THE IMPRESSION THE PARTIES STIPULATED TO AN ADJOURNED DATE; LEAVE TO APPEAL GRANTED IN THE INTERST OF JUSTICE; SUMMARY JUDGMENT DENIED ON THE MERITS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the building owner’s (Findlay’s) motion for summary judgment in this wet-floor slip and fall case should not have been granted. Supreme Court had treated the motion as unopposed. However, plaintiff’s counsel was under the impression the parties had stipulated to an adjourned date. Leave to appeal was granted in the interest of justice. On the merits, plaintiff raised a question of fact about the adequacy of the “wet floor” warning:

[Supreme Court’s] order was not made upon notice and is not appealable as of right (CPLR 5701[a]). However, this Court is authorized to deem a notice of appeal a request for leave to appeal and to grant such leave for a determination on the merits in the interest of justice (CPLR 5701[c] …). Given the facts of this case, this Court grants plaintiff leave to appeal in the interest of justice. Relying on CPLR 2214 and 2004, the motion court dismissed the complaint because plaintiff’s counsel did not offer a valid explanation for his late filing. However, counsel filed his opposition pursuant to what he thought was a valid stipulation.  …

Given the T-shaped nature of the hallway in this case, there are issues of fact as to whether the first warning sign was adequate, especially since the floor in that area was dry. Indeed, “[t]he mere placement of a “wet floor warning sign does not automatically absolve a defendant of negligence” … . We also note that this housing development housed primarily elderly and handicapped individuals. Zubillaga v Findlay Teller Hous. Dev. Fund Corp., 2021 NY Slip Op 04687, First Dept 8-12-21

 

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