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THE 21-YEAR DELAY BETWEEN THE CRIME AND DEFENDANT’S ARREST DID NOT VIOLATE DEFENDANT’S SPEEDY-TRIAL RIGHTS (SECOND DEPT).

The Second Department determined the 21-year delay between the crime (rape) defendant’s arrest did not violate defendant’s right to a speedy trial:

… [T]he People met their burden of demonstrating good cause for the delay … . Nineteen years of the subject delay was due to the lack of connection between the semen sample collected at the time of the rape in 1994 and the defendant’s DNA profile, which was not developed and uploaded to the law enforcement databases until 2013. Once the police were able to identify a viable suspect, they had a good-faith basis to wait until they could locate the victim to arrest the defendant. Furthermore, the detectives’ hearing testimony established that the police made reasonable and diligent efforts to locate the victim, and the defendant was arrested immediately after a detective located and interviewed the victim … . The extent of the delay in prosecution is outweighed by the People’s good cause for the delay, the nature of the crime, the fact that there was no period of pretrial incarceration during the period at issue, and the lack of any prejudice from the delay identified by the defendant. We are satisfied that the defendant was not deprived of his due process right to prompt prosecution … . People v Gardner, 2022 NY Slip Op 02816, Second Dept 4-27-22

Practice Point: The 21-year delay between the crime and defendant’s arrest in this rape case was adequately explained. The DNA sample was not connected to a person until nearly 20 years after the rape and the victim was not located until a year or so after that.

 

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THE MAJORITY CONCLUDED (1) THE RECORD SUPPORTED THE FINDING THAT DEFENDANT DID NOT MAKE AN UNEQUIVOCAL REQUEST FOR COUNSEL, AND (2) WHETHER A REQUEST FOR COUNSEL IS UNEQUIVOCAL IS A MIXED QUESTION OF LAW AND FACT WHICH IS NOT REVIEWABLE BY THE COURT OF APPEALS (CT APP). ​

The Court of Appeals, over a two-judge extensive dissenting opinion, determined (1) the record supported the finding that the defendant’s request for counsel was not unequivocal and (2) whether the request was unequivocal presents a mixed question of law and fact which is not reviewable by the Court of Appeals:

Once a defendant in custody unequivocally requests the assistance of counsel, the right to counsel may not be waived outside the presence of counsel … . But “[a] suggestion that counsel might be desired; a notification that counsel exists; or a query as to whether counsel ought to be obtained will not suffice” to unequivocally invoke the indelible right to counsel … . Furthermore, “[w]hether a particular request is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant’s demeanor, manner of expression and the particular words found to have been used by the defendant” … .

Here, there is support in the record for the lower courts’ determination that defendant—whose inquiries and demeanor suggested a conditional interest in speaking with an attorney only if it would not otherwise delay his clearly-expressed wish to speak to the police—did not unequivocally invoke his right to counsel while in custody. That mixed question of law and fact is therefore beyond further review by this Court … .

From the dissent:

Here, Mr. Dawson [defendant] unequivocally invoked his right to counsel — the record supports no other conclusion. As is clear from the quoted portion of the colloquy with the detective, he twice said he wanted to call his lawyer, and the detective twice expressly stated that he understood Mr. Dawson had asked to call counsel and therefore the detective could no longer speak to Mr. Dawson. Additionally, the detective then told Mr. Dawson to wait while the detective retrieved Mr. Dawson’s phone so he could call counsel. People v Dawson, 2022 NY Slip Op 02772, CtApp 4-26-22

​Practice Point: Whether a defendant’s request for counsel in “unequivocal,” thereby requiring police interrogation to cease, is a mixed question of law and fact. As long as there is support in the record for the lower court’s finding the request was not unequivocal, the issue cannot be reviewed by the Court of Appeals.

 

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THE DNA EVIDENCE GENERATED BY THE TRUEALLELE CASEWORK SYSTEM WAS PROPERLY ADMITTED IN EVIDENCE; THE DEFENSE WAS NOT ENTITLED TO THE TRUEALLELE SOFTWARE CODE EITHER IN CONNECTION WITH THE FRYE HEARING OR TO CONFRONT THE WITNESSES AGAINST DEFENDANT; THE CONCURRENCE STATED WHETHER THE CODE WOULD BE AVAILABLE TO THE DEFENSE UNDER A PROTECTIVE ORDER REMAINED AN OPEN QUESTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a three-judge concurring opinion, determined that the trial judge, after a Frye hearing, properly admitted DNA evidence generated by the TrueAllele Casework System. The arguments that the defense was entitled to the TrueAllele software source code in connection with the Frye hearing and in order to confront the witnesses against the defendant were rejected. The concurrence stated that  it remains an open question whether a protective order could be used to supply the defense with the source code:

This appeal primarily concerns the admissibility of DNA mixture interpretation evidence generated by the TrueAllele Casework System. We conclude that Supreme Court did not abuse its discretion in finding, following a Frye hearing, that TrueAllele’s use of the continuous probabilistic genotyping approach to generate a statistical likelihood ratio—including the use of peak data below the stochastic threshold—of a DNA genotype is generally accepted in the relevant scientific community. We also hold that there was no error in the court’s denial of defendant’s request for discovery of the TrueAllele software source code in connection with the Frye hearing or for the purpose of his Sixth Amendment right to confront the witness against him at trial.

From the concurring opinion:

Although the prosecutor failed to establish that, at the time of the Frye hearing, TrueAllele’s methodology was properly validated by disinterested parties with access to the source code, and defendant was denied an opportunity to review the source code because of the developer’s proprietary claims, the error, considered alone or with the other alleged constitutional error, was harmless on the facts of this case.

Even though the majority rejects defendant’s claim to the source code on the facts of this case, it remains an open question in this Court whether a defendant should be granted access to a proprietary source code under a protective order. This familiar method of ensuring a defendant’s right to present a defense would safeguard commercial interests. It provides no help to this defendant, but it is squarely within a court’s authority to grant such an order in an appropriate future case. People v Wakefield, 2022 NY Slip Op 02771, CtApp 4-26-22

​Practice Point: The Court of Appeal holds that DNA evidence generated by the TrueAllele Casework System is admissible. The defense was not entitled to the TrueAllele software code either for the Frye hearing or in order the confront the witnesses against the defendant. It is an open question whether the defense could gain access to the software code by way of a protective order (suggested by the concurring opinion).

 

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THE 2022 CONGRESSIONAL REDISTRICTING MAP FAVORED DEMOCRATS IN VIOLATION OF ARTICLE III OF THE NYS CONSTITUTION (FOURTH DEPT). ​

The Fourth Department, over a two-justice concurrence and a two-justice partial dissent, determined the NYS 2022 congressional redistricting map was drawn to favor democrats in violation of Article III of the NYS Constitution:

… [W]e agree with petitioners and the court that the congressional map was unconstitutional in that it violated article III, § 4 (c) (5), which provides as relevant here that “[d]istricts shall not be drawn to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties.”  * * *

We conclude that evidence of the largely one-party process used to enact the 2022 congressional map, a comparison of the 2022 congressional map to the 2012 congressional map, and the expert opinion and supporting analysis of Sean P. Trende, met petitioners’ burden of establishing that the 2022 congressional map was drawn to discourage competition and favor democrats in violation of article III, § 4 (c) (5). First, democratic leaders in the legislature drafted the 2022 congressional redistricting map without any republican input, and the map was adopted by the legislature without a single republican vote in favor of it. Second, under the 2012 congressional map there were 19 elected democrats and 8 elected republicans and under the 2022 congressional map there were 22 democrat-majority and 4 republican-majority districts. Matter of Harkenrider v Hochul, 2022 NY Slip Op 02648, Fourth Dept 4-22-22

 

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THE LOCAL LAW REQUIRING APPROVAL OF PROPOSED ALTERATIONS TO BUILDINGS IDENTIFIED AS “HISTORIC” IS NOT UNCONSTITUTIONAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a local law requiring permits for changes to buildings designated “historic” was not unconstitutional. The local law, the “Historic Building Preservation Law,” gave the town’s Historic Building Preservation Commission (HBPC) the power to approve or disapprove proposed alterations to historic buildings which were identified as such in a “Survey:”

“Legislative enactments enjoy a strong presumption of constitutionality . . . [and] parties challenging a duly enacted statute face the initial burden of demonstrating the statute’s invalidity beyond a reasonable doubt” … . “The exceedingly strong presumption of constitutionality applies . . . to ordinances of municipalities” … . The Fifth and Fourteenth Amendments to the United States Constitution guarantee due process protections for life, liberty, and property (see US Const Amends V, XIV). “The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property” … .

… Here, the petitioners/plaintiffs failed to identify any constitutionally protected property interest that was implicated in the enactment of the 2017 local law and, thus, the petitioners/plaintiffs were not entitled to a hearing prior to the enactment of that law … . Contrary to the petitioners/plaintiffs’ contention, the 2017 local law did not require property owners to submit to warrantless searches of their properties in order to challenge a property’s classification or inclusion on the Survey. Matter of Santomero v Town of Bedford, 2022 NY Slip Op 02552, Second Dept 4-20-22

​Practice Point: A local law which designates certain buildings as “historic” and requires permits for alterations to the historic buildings is not unconstitutional.

 

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THE USE OF ELECTRONIC LOGGING DEVICES (ELD’S) TO MONITOR THE HOURS AND PLACES OF OPERATION OF COMMERCIAL MOTOR VEHICLES (CMV’S) AND THE INSPECTION OF ELD’S BY LAW ENFORCEMENT PERSONNEL DURING ROADSIDE SAFETY INSPECTIONS CONSTITUTE VALID ADMINSITRATIVE SEARCHES (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McShan (too comprehensive to fairly summarize here), determined the use of electronic logging devices (ELD’s) to monitor the hours and places of operation of commercial motor vehicles (CMV’s), such that the data collected by the ELD’s can be inspected by law enforcement personnel, does not constitute unreasonable search and seizure:

ELDs integrate with a vehicle’s engine and use GPS technology to automatically record the date, time and approximate geographic location of CMVs, as well as the number of engine hours and vehicle mileage (see 49 CFR 395.26 [b]). Drivers are required to manually input identifying information and any changes in their duty status, the categories of which include, among others, on-duty, off-duty and authorized personal use (see 49 CFR 395.24 [b]; 395.26 [b]; 395.28). Upon request, information recorded by ELDs must be made available to law enforcement personnel during roadside safety inspections … .* * *

 … “[O]ne would be hard-pressed to find an industry more pervasively regulated than the trucking industry.” … [W]e … find that commercial trucking is a pervasively regulated industry pursuant to which an administrative search may be justified.

… [T]he regulatory scheme at issue here provides adequate assurances that the inspection of ELDs will be reasonable. …

The ELD rule likewise provides the requisite “meaningful limitation” on the discretion of officials performing the inspection so as to ensure “that the search is limited in scope to that necessary to meet the interest that legitimized the search in the first place” … . Matter of Owner Operator Ind. Drivers Assn., Inc. v New York State Dept. of Transp., 2022 NY Slip Op 02166, Third Dept 3-31-22

Practice Point: Administrative searches are deemed constitutional in “heavily regulated industries.” Commercial trucking is a heavily regulated industry. The use of electronic logging devices (ELD’s) to monitor the hours and places of operation of commercial motor vehicles (CMV’s) and the inspection of ELD’s by law enforcement personnel during roadside safety inspections constitute valid administrative searches.

 

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THE SIX-YEAR DELAY, DURING WHICH DEFENDANT WAS INCARCERATED, DEPRIVED DEFENDANT OF HIS RIGHT TO A SPEEDY TRIAL; THE MURDER AND ASSAULT CONVICTIONS AFTER TRIAL REVERSED (FIRST DEPT).

The First Department, reversing defendant’s murder and assault convictions after trial, determined defendant have been deprived of his right to a speedy. It was presumed that the delay of six years, during which defendant was incarcerated, prejudiced the defense. The prosecution failed to demonstrate good cause for the delay:

“Where there has been extended delay, it is the People’s burden to establish good cause” … . Following defendant’s January 2011 arraignment, this case was reassigned to successive Assistant District Attorneys. After the case was assigned to the third and final prosecutor in mid-2014, he waited about one year before seeking to obtain a DNA sample from defendant to be compared with DNA recovered from a plastic cup found outside the garage in which the shootings occurred during a party. That motion was denied because there was no nexus between the cup and the shootings, and because defendant’s admitted attendance at the party was undisputed. The People argue that their delay was justified by the reluctance of a retired detective to testify; they cite a note from the detective’s doctor stating that he was medically unfit to be cross-examined and argue that the detective was a necessary witness because he conducted the lineup in which the surviving victim identified defendant as the assailant. However, this detective ultimately did not testify at the suppression hearing or trial, and the suppression court credited the hearing testimony of the surviving victim, who knew defendant, and denied the motion to suppress the identification based on that testimony. Moreover, it is undisputed that the retired detective was not needed to introduce defendant’s statements, which were introduced through another detective at trial. People v McDonald, 2022 NY Slip Op 02099, First Dept 3-29-22

Practice Point: Here the defendant’s murder and assault convictions after trial were reversed because defendant was deprived of his right to a speedy trial. Defendant was incarcerated during the six-year delay, which raised the presumption the defense was prejudiced by the delay. In addition the People were not able to show a good cause for the delay. The People claimed a detective’s poor health precluded him from testifying, but the detective’s testimony was not necessary.

 

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DEFENDANT WAS DEPRIVED OF HIS RIGHT TO CONFRONT A WITNESS AGAINST HIM AND WAS PENALIZED FOR REJECTING THE JUDGE’S PLEA OFFER AND GOING TO TRIAL; THE ISSUES WERE NOT PRESERVED BUT WERE CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, vacating one conviction and reducing the sentence for another, exercising its interest of justice jurisdiction over the unpreserved errors, determined defendant had been deprived of his right to confront a witness against him and the judge imposed a harsher sentence because defendant exercised his right to a trial:

… [T]he defendant was not afforded the opportunity to cross-examine a DMV employee who was directly involved in sending out the suspension notices or who had personal familiarity with the mailing practices of the DMV’s central mail room or with the defendant’s driving record … . Thus, the testimony of the DMV employee was improperly admitted in order to establish an essential element of the crime of aggravated unlicensed operation of a motor vehicle in the third degree in violation of the defendant’s right of confrontation … . …

… [P]rior to trial, the Supreme Court made its own plea offer to the defendant of an aggregate term of 1½ years of imprisonment to be followed by a period of 2 years of postrelease supervision in full satisfaction of the 16-count indictment … .The court … stated to the defendant: “You should understand the way I operate is as follows: Before trial with me you get mercy; after trial you get justice” … . The defendant declined the plea offer and proceeded to trial, after which he was acquitted of the top counts of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. The court then sentenced the defendant on the conviction of criminal possession of a controlled substance in the fourth degree to a term of 5 years of imprisonment to be followed by a period of postrelease supervision of 2 years. People v Ellerbee, 2022 NY Slip Op 02016, Second Dept 3-23-22

Practice Point: Here the DMV employee who had personal knowledge of the mailing of the license suspension notice to defendant and the defendant’s driving record apparently was not called as a witness. Therefore defendant was deprived of his right to confront the witness about an essential element of the offense. In addition, the judge imposed a much harsher sentence than that offered as part of a plea bargain. The judge thereby penalized the defendant because he chose to go the trial. Both of these errors were not preserved for appeal but were considered in the interest of justice.

 

“INTERACTIVE FANTASY SPORT” (IFS) IS NOT “GAMBLING;” THE STATUTES AUTHORIZING AND REGULATING IFS ARE NOT, THEREFORE, UNCONSTITUTIONAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a comprehensive three-judge dissent, determined the 2016 statutes authorizing and regulating “interactive fantasy sport” (IFS) do not violate the New York Constitution’s prohibition of “gambling:”

… IFS contests are not prohibited gambling activities because contestants use significant skill to select their rosters, creating fantasy teams, and therefore have influence over the outcome of the fantasy contests between IFS participants. … [T]he historic prohibition on “gambling” in article I, § 9 does not encompass skill-based competitions in which participants who exercise substantial influence over the outcome of the contest are awarded predetermined fixed prizes by a neutral operator. * * *

… [T]he prohibition on “gambling” in article I, § 9 [of the NYS Constitution] encompasses either the staking of value on a game in which the element of chance predominates over the element of skill or the risking of value through bets or wagers on contests of skill where the pool of wagered value is awarded upon some future event outside the wagerer’s influence or control. However, games in which skill predominates over chance and skill-based competitions for predetermined prizes in which the participants have influence over the outcome do not constitute “gambling.” … .

From the dissent:

Since 1894, New York’s Constitution has prohibited “lotter[ies] . . . poolselling, bookmaking, or any other kind of gambling.” Everyone knows that sports betting is gambling. Betting on how many touchdowns a particular player will score is gambling. … Aggregating several bets involving different players into a point total that is pitted against point totals of other bettors does not transform gambling into something else. White v Cuomo, 2022 NY Slip Op 01954, Ct App 3-22-22

Practice Point: Statutes authorizing “interactive fantasy sport” IFS are not unconstitutional because such skill-based competitions do not constitute “gambling” in which the element of chance, as opposed to skill, predominates.

 

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THE JUDGE SHOULD NOT HAVE RELIED ON EVIDENCE GIVEN AT A MATERIAL WITNESS HEARING, FROM WHICH DEFENDANT WAS PROPERLY EXCLUDED, AT A SUBSEQUENT SIROIS HEARING AT WHICH THE WITNESS DID NOT TESTIFY (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the judge should not have relied upon evidence given at a material witness hearing, from which the defendant was properly excluded, at a subsequent Sirois hearing at which the material witness did not testify:

At [the material witness] hearing, the witness … testified that she had been threatened by defendant, the codefendant, and others in an attempt to prevent her from testifying at trial. Although the court granted the People’s application for a material witness order and set bail to ensure the witness’s availability, the next day the People requested a Sirois hearing and sought a determination that the witness had been made constructively unavailable to testify at trial by threats attributable to defendant … . …

A defendant generally has no constitutional right to be present at a material witness hearing … ; however, a “[d]efendant’s absence from [a Sirois] hearing[] could have a substantial effect on his [or her] ability to defend” … . Here, although there is no dispute that the initial material witness hearing was not intended to address any Sirois or other evidentiary issues … , the court erred in relying on the unchallenged testimony taken therein in making its Sirois determination … . Indeed, the court effectively, and erroneously, incorporated the material witness hearing into the subsequent Sirois hearing by expressly relying on that testimony and on its own observations of the witness’s demeanor in making its determination. People v Phillips, 2022 NY Slip Op 01710, Fourth Dept 3-11-22

Practice Point: The judge relied on the witness’s testimony at a material witness hearing, at which defendant was not present, for his ruling in a Sirois hearing, at which the witness did not testify. Defendant was thereby deprived of his right to confront the witnesses against him at the Sirois hearing. New trial ordered.

 

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