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NO CORAM NOBIS RELIEF FOR DEFENDANT WHERE DEFENSE COUNSEL FILED A NOTICE OF APPEAL BUT ALLEGEDLY DID NOT ADVISE DEFENDANT OF THE AVAILABILITY OF POOR PERSON RELIEF AND DID NOT TAKE ANY ACTION ON A MOTION TO DISMISS THE APPEAL, DEFENDANT DID NOT MEET HIS BURDEN OF PROOF ON THE INEFFECTIVE ASSISTANCE CLAIM (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over two dissenting opinions, determined that defendant was not entitled to coram nobis relief based upon ineffective assistance for failure to perfect an appeal:

 

In People v Syville (15 NY3d 391 [2010]), we held that, in rare circumstances, a defendant may seek coram nobis relief despite failing to move for an extension of time to file a notice of appeal within the one-year grace period provided by CPL 460.30. Specifically, we concluded that coram nobis may be available for a defendant who demonstrated that he or she timely requested that trial counsel file a notice of appeal, the attorney failed to comply, and the omission could not reasonably have been discovered within the one-year time limit … . Defendant now asks us to expand Syville to situations in which retained trial counsel filed a timely notice of appeal but allegedly failed to advise the defendant of his or her right to poor person relief, or to take any action when served with a motion to dismiss the appeal years after the notice of appeal was filed. Because defendant has not met his burden of proving that counsel was ineffective, we decline to expand Syville under the circumstances presented here. * * *

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Given this … Court’s holdings … that a defendant is not constitutionally entitled to the assistance of counsel in seeking poor person relief as long as he or she is given written notice that is similar to the one defendant received here — defendant has a heavy burden to demonstrate entitlement to a writ of error coram nobis premised on ineffective assistance of counsel for failing to assist in procuring poor person relief. … He failed to meet that burden here, both in terms of his specific claim that counsel did not advise him of his right to seek poor person relief in connection with his appeal and the more general claim, advanced by both Judge Rivera and Judge Wilson in dissent, that counsel did not consult with him regarding an appeal.

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With respect to the other prong of defendant’s coram nobis motion (based on failure to respond to the dismissal motion four years after the notice of appeal was filed) defendant and Judge Rivera, in her dissent, essentially seek a rule that trial counsel has a constitutional responsibility in connection with an appeal for an indefinite period of time extending for years after the notice of appeal is filed. Neither defendant nor that dissent cite any legal support for the imposition of such a rule. Moreover, the cases … do not support imposing either … an open-ended obligation on behalf of trial counsel or a rule that counsel is ineffective for failing to assist a defendant in obtaining poor person relief. People v Arjune, 2017 NY Slip Op 08159, CtApp 11-20-17

 

CRIMINAL LAW (NO CORAM NOBIS RELIEF FOR DEFENDANT WHERE DEFENSE COUNSEL FILED A NOTICE OF APPEAL BUT ALLEGEDLY DID NOT ADVISE DEFENDANT OF THE AVAILABILITY OF POOR PERSON RELIEF AND DID NOT TAKE ANY ACTION ON A MOTION TO DISMISS THE APPEAL, DEFENDANT DID NOT MEET HIS BURDEN OF PROOF ON THE INEFFECTIVE ASSISTANCE CLAIM (CT APP))/ATTORNEYS (CRIMINAL LAW, NO CORAM NOBIS RELIEF FOR DEFENDANT WHERE DEFENSE COUNSEL FILED A NOTICE OF APPEAL BUT ALLEGEDLY DID NOT ADVISE DEFENDANT OF THE AVAILABILITY OF POOR PERSON RELIEF AND DID NOT TAKE ANY ACTION ON A MOTION TO DISMISS THE APPEAL, DEFENDANT DID NOT MEET HIS BURDEN OF PROOF ON THE INEFFECTIVE ASSISTANCE CLAIM (CT APP))/APPEALS (CRIMINAL LAW, (NO CORAM NOBIS RELIEF FOR DEFENDANT WHERE DEFENSE COUNSEL FILED A NOTICE OF APPEAL BUT ALLEGEDLY DID NOT ADVISE DEFENDANT OF THE AVAILABILITY OF POOR PERSON RELIEF AND DID NOT TAKE ANY ACTION ON A MOTION TO DISMISS THE APPEAL, DEFENDANT DID NOT MEET HIS BURDEN OF PROOF ON THE INEFFECTIVE ASSISTANCE CLAIM (CT APP))/CORAM NOBIS  (NO CORAM NOBIS RELIEF FOR DEFENDANT WHERE DEFENSE COUNSEL FILED A NOTICE OF APPEAL BUT ALLEGEDLY DID NOT ADVISE DEFENDANT OF THE AVAILABILITY OF POOR PERSON RELIEF AND DID NOT TAKE ANY ACTION ON A MOTION TO DISMISS THE APPEAL, DEFENDANT DID NOT MEET HIS BURDEN OF PROOF ON THE INEFFECTIVE ASSISTANCE CLAIM (CT APP))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, (NO CORAM NOBIS RELIEF FOR DEFENDANT WHERE DEFENSE COUNSEL FILED A NOTICE OF APPEAL BUT ALLEGEDLY DID NOT ADVISE DEFENDANT OF THE AVAILABILITY OF POOR PERSON RELIEF AND DID NOT TAKE ANY ACTION ON A MOTION TO DISMISS THE APPEAL, DEFENDANT DID NOT MEET HIS BURDEN OF PROOF ON THE INEFFECTIVE ASSISTANCE CLAIM (CT APP))

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PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined the decision vacating an order concerning a counterclaim in a prior appeal was the law of the case, despite the “otherwise affirmed” phrase in the decision, and Supreme Court should not have adhered to a prior ruling on the counterclaim in Supreme Court. The Fourth Department further held that Supreme Court properly found a report prepared by an accountant was prepared in anticipation of litigation and was not discoverable as a “mixed file:”

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“An appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and is binding on . . . Supreme Court, as well as on the appellate court . . . [T]he “law of the case” operates to foreclose re-examination of [the] question absent a showing of subsequent evidence or change of law’ “… . Nevertheless, “where a court has vacated an earlier order, the doctrine of . . . law of the case no longer applies . . . Indeed, a vacated judgment has no preclusive force either as a matter of collateral or direct estoppel or as a matter of the law of the case’ “… . While this Court may have “otherwise affirmed” the order insofar as it concerned the issues unrelated to the counterclaim, we dismissed the appeal from that part of the order concerning the counterclaim and vacated the judgment. That necessarily means that any determinations related to the counterclaim were not encompassed by the “otherwise affirmed” language related to the order … . Micro-Link, LLC v Town of Amherst, 2017 NY Slip Op 08120, Fourth Dept 11-17-17

CIVIL PROCEDURE (LAW OF THE CASE, DISCOVERY, PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT))/APPEALS (CIVIL PROCEDURE, LAW OF THE CASE, PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT))/PRIVILEGE (MATERIAL PREPARED FOR LITIGATION, PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT))/ACCOUNTANTS (PRIVILEGE, REPORT PREPARED FOR LITIGATION, PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT))/LAW OF THE CASE (CIVIL PROCEDURE, PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT))

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WHETHER A SUCCESSFUL MOTION TO DISMISS COULD HAVE BEEN MADE ON DOUBLE JEOPARDY GROUNDS PURSUANT TO CPL 40.20 COULD NOT HAVE BEEN DETERMINED ON DIRECT APPEAL, THEREFORE DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department determined defendant could not have raised the ineffective assistance argument on direct appeal and therefore county court should not have denied his motion to vacate his conviction without a hearing. There was a question whether defense counsel could have successfully moved to dismiss three felonies based on the violation of protections against double jeopardy in Criminal Procedure Law (CPL) 40.20. Defendant was indicted on three felonies and three misdemeanors. But defendant had already pled guilty to the three misdemeanors in town court. When that was discovered the county court judge sent the three misdemeanors back to town court and defendant was convicted of the three felonies in county court:

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… [E]ven if separate prosecutions were not permitted under subdivision 40.20 (2) (b), defendant must also establish that separate prosecutions were not permitted under CPL 40.20 (2) (a) in order to establish that a motion to dismiss the felonies under CPL 40.20, if made, would have been successful.

Unlike subdivision (2) (b), the determination whether separate prosecutions were permitted under subdivision (2) (a) could not have been made on the direct appeal because the “lower court paperwork” was not included in the record, and a review of the charging documents for the prior and current prosecutions is necessary to determine if acts establishing the misdemeanor offenses were “in the main clearly distinguishable from those establishing the [felony offenses]” … .

Inasmuch as the record on the direct appeal lacked the lower court paperwork, the record on direct appeal was insufficient to determine whether a motion to dismiss the felony counts under CPL 40.20, if made, would have been successful. People v Pace, 2017 NY Slip Op 08137, Fourth Dept 11-17-17

 

CRIMINAL LAW (MOTION TO VACATE CONVICTION, WHETHER A SUCCESSFUL MOTION TO DISMISS COULD HAVE BEEN MADE ON DOUBLE JEOPARDY GROUNDS PURSUANT TO CPL 40.20 COULD NOT HAVE BEEN DETERMINED ON DIRECT APPEAL, THEREFORE DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT))/APPEALS (CRIMINAL LAW, MOTION TO VACATE CONVICTION, WHETHER A SUCCESSFUL MOTION TO DISMISS COULD HAVE BEEN MADE ON DOUBLE JEOPARDY GROUNDS PURSUANT TO CPL 40.20 COULD NOT HAVE BEEN DETERMINED ON DIRECT APPEAL, THEREFORE DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, MOTION TO VACATE CONVICTION, WHETHER A SUCCESSFUL MOTION TO DISMISS COULD HAVE BEEN MADE ON DOUBLE JEOPARDY GROUNDS PURSUANT TO CPL 40.20 COULD NOT HAVE BEEN DETERMINED ON DIRECT APPEAL, THEREFORE DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT))/INEFFECTIVE ASSISTANCE  (MOTION TO VACATE CONVICTION, WHETHER A SUCCESSFUL MOTION TO DISMISS COULD HAVE BEEN MADE ON DOUBLE JEOPARDY GROUNDS PURSUANT TO CPL 40.20 COULD NOT HAVE BEEN DETERMINED ON DIRECT APPEAL, THEREFORE DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT))/DOUBLE JEOPARDY  (MOTION TO VACATE CONVICTION, WHETHER A SUCCESSFUL MOTION TO DISMISS COULD HAVE BEEN MADE ON DOUBLE JEOPARDY GROUNDS PURSUANT TO CPL 40.20 COULD NOT HAVE BEEN DETERMINED ON DIRECT APPEAL, THEREFORE DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT))/CRIMINAL PROCEDURE LAW 40.20 (DOUBLE JEOPARDY, MOTION TO VACATE CONVICTION, WHETHER A SUCCESSFUL MOTION TO DISMISS COULD HAVE BEEN MADE ON DOUBLE JEOPARDY GROUNDS PURSUANT TO CPL 40.20 COULD NOT HAVE BEEN DETERMINED ON DIRECT APPEAL, THEREFORE DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT))

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DWI COUNTS WERE LESSER INCLUSORY COUNTS OF VEHICULAR MANSLAUGHTER AND SHOULD HAVE BEEN DISMISSED, ERROR DID NOT REQUIRE PRESERVATION (FOURTH DEPT).

The Fourth Department, reversing the Driving While Intoxicated convictions, noted that the dwi counts were lesser inclusory counts of vehicular manslaughter. The error did not require preservation:

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The People correctly concede, however, that counts two and three, charging driving while intoxicated, must be dismissed as lesser inclusory counts of count one, charging vehicular manslaughter in the first degree … , and we therefore modify the judgment accordingly. Defendant’s failure to preserve the issue for our review is of no moment because preservation is not required … . People v Mastowski, 2017 NY Slip Op 08113, Fourth Dept 11-17-17

 

CRIMINAL LAW (DWI COUNTS WERE LESSER INCLUSORY COUNTS OF VEHICULAR MANSLAUGHTER AND SHOULD HAVE BEEN DISMISSED, ERROR DID NOT REQUIRE PRESERVATION (FOURTH DEPT))/APPEALS (CRIMINAL LAW, LESSER INCLUSORY COUNTS, DWI COUNTS WERE LESSER INCLUSORY COUNTS OF VEHICULAR MANSLAUGHTER AND SHOULD HAVE BEEN DISMISSED, ERROR DID NOT REQUIRE PRESERVATION (FOURTH DEPT))/LESSER INCLUSORY COUNTS (CRIMINAL LAW, DWI COUNTS WERE LESSER INCLUSORY COUNTS OF VEHICULAR MANSLAUGHTER AND SHOULD HAVE BEEN DISMISSED, ERROR DID NOT REQUIRE PRESERVATION (FOURTH DEPT))/VEHICULAR MANSLAUGHTER (DWI COUNTS WERE LESSER INCLUSORY COUNTS OF VEHICULAR MANSLAUGHTER AND SHOULD HAVE BEEN DISMISSED, ERROR DID NOT REQUIRE PRESERVATION (FOURTH DEPT))/DRIVING WHILE INTOXICATED (DWI COUNTS WERE LESSER INCLUSORY COUNTS OF VEHICULAR MANSLAUGHTER AND SHOULD HAVE BEEN DISMISSED, ERROR DID NOT REQUIRE PRESERVATION (FOURTH DEPT))

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BECAUSE NO AFFIDAVIT OF ERRORS WAS FILED AFTER A CONVICTION IN TOWN COURT, COUNTY COURT DID NOT HAVE JURISDICTION TO HEAR THE APPEAL (CT APP).

Defendant was convicted in town court of criminal contempt stemming from anti-drone protests at Hancock Field, an Air National Guard base. The town court proceedings were recorded electronically and no stenographer was present. The defendant filed a notice of appeal, but did not file an affidavit of errors. County Court heard the appeal and reduced defendant’s sentence from one year to six months. The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined County Court did not have jurisdiction to hear the appeal because an affidavit of errors was not filed. However, because defendant had moved for an extension of time to file the affidavit of errors should the transcript of the electronic recording be deemed insufficient (never ruled on by County Court), the matter was sent back to County Court:

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Criminal Procedure Law § 460.10 requires an appellant to file an affidavit of errors with the criminal court in order to take an appeal from a judgment of a local criminal court if the underlying proceedings were not recorded by a court stenographer. We have already held that the filing of the affidavit of errors in this circumstance is a jurisdictional prerequisite … . …[W]e conclude that the failure to file the required affidavit of errors renders the intermediate appellate court without jurisdiction to hear the case. People v Flores, 2017 NY Slip Op 08037, CtApp 11-16-17

 

CRIMINAL LAW (APPEALS, BECAUSE NO AFFIDAVIT OF ERRORS WAS FILED AFTER A CONVICTION IN TOWN COURT, COUNTY COURT DID NOT HAVE JURISDICTION TO HEAR THE APPEAL (CT APP))/AFFIDAVIT OF ERRORS (CRIMINAL LAW, APPEALS, BECAUSE NO AFFIDAVIT OF ERRORS WAS FILED AFTER A CONVICTION IN TOWN COURT, COUNTY COURT DID NOT HAVE JURISDICTION TO HEAR THE APPEAL (CT APP))/TOWN COURT (CRIMINAL LAW, APPEALS, BECAUSE NO AFFIDAVIT OF ERRORS WAS FILED AFTER A CONVICTION IN TOWN COURT, COUNTY COURT DID NOT HAVE JURISDICTION TO HEAR THE APPEAL (CT APP))/COUNTY COURT (CRIMINAL LAW, APPEALS, BECAUSE NO AFFIDAVIT OF ERRORS WAS FILED AFTER A CONVICTION IN TOWN COURT, COUNTY COURT DID NOT HAVE JURISDICTION TO HEAR THE APPEAL (CT APP))/APPEALS (CRIMINAL LAW, TOWN COURT, BECAUSE NO AFFIDAVIT OF ERRORS WAS FILED AFTER A CONVICTION IN TOWN COURT, COUNTY COURT DID NOT HAVE JURISDICTION TO HEAR THE APPEAL (CT APP))

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WHETHER THE PROTECTIVE SEARCH OF A VEHICLE WAS VALID PRESENTED A MIXED QUESTION OF LAW AND FACT AND WAS NOT REVIEWABLE BY THE COURT OF APPEALS (CT APP).

The majority, over an extensive three-judge dissent, determined whether the search of a vehicle after a street stop was valid presented a mixed question of law and fact that was not reviewable by the Court of Appeals:

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From the dissent:

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… [W]here the issue presented is whether the People have demonstrated “the minimum showing necessary” to establish the legality of police conduct, “a question of law is presented for [our] review” … .

Accepting the facts as found by the Appellate Division and the suppression court, which are not disputed here, the People failed to adduce the minimum showing required to justify a protective search of defendant’s vehicle — namely, a substantial likelihood of the presence of a weapon and an actual and specific threat to officer safety. I, therefore, disagree with the majority’s conclusion that the question of whether the protective search was lawful is a mixed question of law and fact reviewable only for record support, and I would hold that the search of defendant’s vehicle was unlawful. People v Hardee, 2017 NY Slip Op 08038, CtApp 11-16-17

 

CRIMINAL LAW (SEARCH, WHETHER THE PROTECTIVE SEARCH OF A VEHICLE WAS VALID PRESENTED A MIXED QUESTION OF LAW AND FACT AND WAS NOT REVIEWABLE BY THE COURT OF APPEALS (CT APP))/APPEALS (CRIMINAL LAW, COURT OF APPEALS,  WHETHER THE PROTECTIVE SEARCH OF A VEHICLE WAS VALID PRESENTED A MIXED QUESTION OF LAW AND FACT AND WAS NOT REVIEWABLE BY THE COURT OF APPEALS (CT APP))/MIXED QUESTIONS OF LAW AND FACT (APPEALS, CRIMINAL LAW, COURT OF APPEALS, WHETHER THE PROTECTIVE SEARCH OF A VEHICLE WAS VALID PRESENTED A MIXED QUESTION OF LAW AND FACT AND WAS NOT REVIEWABLE BY THE COURT OF APPEALS (CT APP))/STREET STOPS (SEARCH, WHETHER THE PROTECTIVE SEARCH OF A VEHICLE WAS VALID PRESENTED A MIXED QUESTION OF LAW AND FACT AND WAS NOT REVIEWABLE BY THE COURT OF APPEALS (CT APP))/SEARCH AND SEIZURE (CRIMINAL LAW, APPEALS, COURT OF APPEALS, WHETHER THE PROTECTIVE SEARCH OF A VEHICLE WAS VALID PRESENTED A MIXED QUESTION OF LAW AND FACT AND WAS NOT REVIEWABLE BY THE COURT OF APPEALS (CT APP))/PROTECTIVE SEARCH (CRIMINAL LAW, STREET STOPS, APPEALS, COURT OF APPEALS, WHETHER THE PROTECTIVE SEARCH OF A VEHICLE WAS VALID PRESENTED A MIXED QUESTION OF LAW AND FACT AND WAS NOT REVIEWABLE BY THE COURT OF APPEALS (CT APP))

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JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT).

The Fourth Department ordered a new trial on the assault and unlawful imprisonment charges and reached a prosecutorial misconduct issue in the interest of justice (error not preserved). The prosecutorial misconduct, referring to evidence (a bloody t-shirt) which had been destroyed, was not deemed reversible. The Fourth Department found that a jury instruction on assault allowed the jury to consider a theory about how the victim was injured which was not charged in the indictment. Such an error affects the fundamental right to be tried only on what has been charged and need not be preserved. The Fourth Department also found that the evidence supported both the charged and a lesser included unlawful imprisonment offenses. The judge’s refusal to charge the jury on the lesser included was reversible error:

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… [The] conviction of assault in the second degree must be reversed because Supreme Court’s instruction created the possibility that the jury convicted him upon a theory different from the one charged in the indictment. … As a preliminary matter, we reject the People’s contention that defendant was required to preserve his contention for our review. It is well settled that ” defendant has a “fundamental and nonwaivable” right to be tried only on the crimes charged’ ” … . With respect to the merits of defendant’s contention, “[w]here the court’s jury instruction on a particular count erroneously contains an additional theory that differs from the theory alleged in the indictment, as limited by the bill of particulars, and the evidence adduced at trial could have established either theory, reversal of the conviction on that count is required because there is a possibility that the jury could have convicted the defendant upon the uncharged theory” … . We may not apply harmless error analysis to such an error because it would be impossible to determine whether the jury based its guilty verdict on the uncharged theory … . People v Barber, 2017 NY Slip Op 07807, Fourth Dept 11-9-17

 

CRIMINAL LAW (JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT))/APPEALS (CRIMINAL LAW, JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT))/JURY INSTRUCTIONS CRIMINAL LAW, JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT))/LESSER INCLUDED OFFENSES  (JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT))/PROSECUTORIAL MISCONDUCT (JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT))

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PLEA COLLOQUY RAISED QUESTIONS ABOUT DEFENDANT’S MENTAL HEALTH, NARROW EXCEPTION TO PRESERVATION REQUIREMENT ALLOWED ISSUE TO BE HEARD ON APPEAL, PLEA VACATED (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, determined that defendant, during the plea colloquy, raised a mental health issue that was not adequately addressed by the judge. Because the issue was raised in the colloquy, it was appealable despite the lack of preservation:

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… [D]efendant acknowledged during the plea colloquy that he had mental health problems, including posttraumatic stress disorder that caused him to experience hallucinations, that he heard a voice telling him to commit the crime at issue and that he was taking multiple medications, including Zoloft, to address his mental health problems. Although County Court observed that defendant appeared coherent and responsive during the plea proceedings, it did not ascertain if he was aware that a possible defense, emanating from his mental state at the time that he committed the crime, was available and that he was waiving it by pleading guilty. Inasmuch as an essential element of attempted burglary in the third degree is the intent to commit a crime inside a building that one has unlawfully entered … , and defendant’s mental state potentially negated such intent, County Court should have conducted a further inquiry before accepting defendant’s guilty plea… . Accordingly, under the circumstances presented, we find that the guilty plea was not knowing, voluntary and intelligent and must be vacated. People v Rogers, 2017 NY Slip Op 07889, Third Dept 11-9-17

 

CRIMINAL LAW (GUILTY PLEA, PLEA COLLOQUY RAISED QUESTIONS ABOUT DEFENDANT’S MENTAL HEALTH, NARROW EXCEPTION TO PRESERVATION REQUIREMENT ALLOWED ISSUE TO BE HEARD ON APPEAL, PLEA VACATED (THIRD DEPT))/APPEALS (CRIMINAL LAW, GUILTY PLEA, PLEA COLLOQUY RAISED QUESTIONS ABOUT DEFENDANT’S MENTAL HEALTH, NARROW EXCEPTION TO PRESERVATION REQUIREMENT ALLOWED ISSUE TO BE HEARD ON APPEAL, PLEA VACATED (THIRD DEPT))/GUILTY PLEA (PLEA COLLOQUY RAISED QUESTIONS ABOUT DEFENDANT’S MENTAL HEALTH, NARROW EXCEPTION TO PRESERVATION REQUIREMENT ALLOWED ISSUE TO BE HEARD ON APPEAL, PLEA VACATED (THIRD DEPT))/COLLOQUY (CRIMINAL LAW,  PLEA COLLOQUY RAISED QUESTIONS ABOUT DEFENDANT’S MENTAL HEALTH, NARROW EXCEPTION TO PRESERVATION REQUIREMENT ALLOWED ISSUE TO BE HEARD ON APPEAL, PLEA VACATED (THIRD DEPT))/MENTAL HEALTH (CRIMINAL LAW, GUILTY PLEA, PLEA COLLOQUY RAISED QUESTIONS ABOUT DEFENDANT’S MENTAL HEALTH, NARROW EXCEPTION TO PRESERVATION REQUIREMENT ALLOWED ISSUE TO BE HEARD ON APPEAL, PLEA VACATED (THIRD DEPT))

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UNEXPECTED ABSENCE OF A PROSECUTION WITNESS AFTER ARRESTING OFFICERS TESTIFIED ABOUT THE WITNESS’S INVOLVEMENT IN DEFENDANT’S ARREST DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined, in the interest of justice (error not preserved), the defendant was deprived of his right to confront a witness against him. A witness to the stabbing, Torres, could not be located and did not testify at the trial. Before it was clear Torres would not testify, two officers had already testified to facts that made it obvious Torres had identified the defendant as the perpetrator:

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The record reveals … that the trial court understood full well the risk that the jurors, based on the detailed testimony of the arresting officers, might conclude that Torres—now a nontestifying witness—had identified the defendant as one of the perpetrators. Before summations, the court expressly warned both sides: “if I find that either of you are making any representation to this jury that Mr. Jose Torres made an identification of the defendant you will regret it.” Later, the court again warned the prosecutor in the following terms: “[S]ince Jose Torres did not testify, there is no way you are going to argue to this jury or infer to this jury in any way, shape or form that Jose Torres made an identification. Because that’s clearly the only import of your subsequent questioning about what did you do afterwards? Of course, the defendant got arrested. So it doesn’t take a rocket scientist to understand Jose Torres obviously identified something in this case.”

Both sides followed the court’s instructions during summations. However, during the jury’s deliberations, the jurors specifically requested a readback of [a police officer’s] testimony regarding “what Jose Torres told him relating to the perpetrator’s identification and what happened when he identified the defendant.” The requested testimony was read to the jury without any limiting instruction.

Under the unusual circumstances presented, the jury’s note demonstrates that the risk foreshadowed by the trial court had materialized, namely, that the jury had inferred from the arresting officers’ testimony that Torres had identified the defendant as one of Rivera’s attackers. Although neither side can be faulted for the introduction of the arresting officers’ testimony at a time when everyone believed in good faith that Torres would testify, once it became clear that Torres would not be produced as a witness, the arresting officers’ testimonial hearsay regarding the information conveyed to them by Torres violated the defendant’s constitutional right to confront the witnesses against him … . People v Tavarez, 2017 NY Slip Op 07756, Second Dept 11-8-17

 

CRIMINAL LAW (UNEXPECTED ABSENCE OF A PROSECUTION WITNESS AFTER ARRESTING OFFICERS TESTIFIED ABOUT THE WITNESS’S INVOLVEMENT IN DEFENDANT’S ARREST DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW,  (UNEXPECTED ABSENCE OF A PROSECUTION WITNESS AFTER ARRESTING OFFICERS TESTIFIED ABOUT THE WITNESS’S INVOLVEMENT IN DEFENDANT’S ARREST DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/CONSTITUTIONAL LAW (CRIMINAL LAW, CONFRONTATION, UNEXPECTED ABSENCE OF A PROSECUTION WITNESS AFTER ARRESTING OFFICERS TESTIFIED ABOUT THE WITNESS’S INVOLVEMENT IN DEFENDANT’S ARREST DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/APPEALS (CRIMINAL LAW, INTEREST OF JUSTICE, UNEXPECTED ABSENCE OF A PROSECUTION WITNESS AFTER ARRESTING OFFICERS TESTIFIED ABOUT THE WITNESS’S INVOLVEMENT IN DEFENDANT’S ARREST DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/CONFRONTATION CLAUSE (CRIMINAL LAW, UNEXPECTED ABSENCE OF A PROSECUTION WITNESS AFTER ARRESTING OFFICERS TESTIFIED ABOUT THE WITNESS’S INVOLVEMENT IN DEFENDANT’S ARREST DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT)

,

ARREST WAS NOT AUTHORIZED, CONVICTION FOR RESISTING ARREST REVERSED IN THE INTEREST OF JUSTICE (ERROR NOT PRESERVED) (SECOND DEPT).

The Second Department, reversing defendant’s conviction for resisting arrest in the interest of justice (error not preserved), determined the arrest was not authorized. The complainant told the police a man in a white BMW had pointed a gun at him. When the complainant saw the defendant and another man standing near a white BMW he said “that’s them.” Because the officers did not know which of the two men pointed the gun at the complainant, they did not have probable cause to arrest the defendant at the time he fled:

​

A person is guilty of resisting arrest when he or she intentionally prevents or attempts to prevent a police officer from effectuating an authorized arrest of himself or herself or another person … . “A key element of resisting arrest is the existence of an authorized arrest, including a finding that the arrest was premised on probable cause” … . Although the defendant’s contention that the prosecution failed to present legally sufficient evidence of an authorized arrest is unpreserved for appellate review … , we reach it in the exercise of our interest of justice jurisdiction … . Viewing the evidence in the light most favorable to the People … , we agree with the defendant that the evidence was not legally sufficient to establish the element of authorized arrest because, as a matter of law, the evidence failed to establish that the police had probable cause to arrest the defendant. Generally, information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest … . However, at the time that the complainant pointed to the defendant and [another] and stated “that’s them,” the police officers had only been informed that one individual pointed a firearm at the complainant. Therefore, under the circumstances presented here, the officers could not have concluded that it was more probable than not that the defendant … had been driving the white BMW and pointed a firearm at the complainant. Accordingly, the evidence was legally insufficient to establish the defendant’s guilt of the crime of resisting arrest. People v Andrews, 2017 NY Slip Op 07747, Second Dept 11-8-17

 

CRIMINAL LAW (ARREST WAS NOT AUTHORIZED, CONVICTION FOR RESISTING ARREST REVERSED IN THE INTEREST OF JUSTICE (ERROR NOT PRESERVED) (SECOND DEPT))/APPEALS  (CRIMINAL LAW, INTEREST OF JUSTICE, ARREST WAS NOT AUTHORIZED, CONVICTION FOR RESISTING ARREST REVERSED IN THE INTEREST OF JUSTICE (ERROR NOT PRESERVED) (SECOND DEPT))/RESISTING ARREST (ARREST WAS NOT AUTHORIZED, CONVICTION FOR RESISTING ARREST REVERSED IN THE INTEREST OF JUSTICE (ERROR NOT PRESERVED) (SECOND DEPT))/ARREST (PROBABLE CAUSE, ARREST WAS NOT AUTHORIZED, CONVICTION FOR RESISTING ARREST REVERSED IN THE INTEREST OF JUSTICE (ERROR NOT PRESERVED) (SECOND DEPT))

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