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DEFENSE COUNSEL RAISED A BATSON OBJECTION TO THE STRIKING OF FIVE JURORS; THE JUDGE RESTRICTED THE CHALLENGES TO TWO OF THE FIVE STRUCK IN THE MOST RECENT ROUND OF JURY SELECTION; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined the trial judge should not have limited the defense Batson objections to the prosecutor’s striking non-white potential jurors. Defense counsel challenged the striking of five jurors but the judge limited the challenges to the two struck in the most recent round of jury selection:

… [D]efense counsel made an application pursuant to Batson as to the five prospective nonwhite jurors stricken from the three rounds. Defense counsel stated: “that will be a total of . . . five non-white jurors that were struck by the People, and there have not been that many non-white potential jurors we have seen.” Defense counsel added, “so out of the 11 strikes, five of them were for non-white jurors,” and “I believe that makes a prima facie case regarding the protective class”. The court responded: “Let’s talk about this round only.” The People proceeded to proffer reasons for striking only the two panelists from the third round. The defense renewed its Batson challenge when the prosecution struck a sixth nonwhite potential juror in a subsequent round, stating that the People “are deliberately striking non-white jurors.” The court specifically stated it was “not going to address that” and defense counsel noted their exception. …

The trial court erred in denying defendants an opportunity to present their full Batson challenge when it improperly limited the inquiry to only two of the challenged prospective jurors. As this Court held in People v Frazier (125 AD3d 449, 449 [1st Dept 2015]), “[a]lthough the court did not make a specific ruling that defendants satisfied step one of Batson (prima facie case of discrimination), once it ordered the prosecutor to provide the reasons for his peremptory challenges to two of the . . . panelists who were the subject of defendants’ application, it should have required the prosecutor to articulate his reasons for striking the remaining . . . panelists, as defendants specifically requested.” The People argue that unlike Frazier, the trial court here simply directed the parties to focus on the panelists challenged in round three of jury selection and the prosecutor volunteered race-neutral reasons without being ordered to do so. This is a distinction without a difference. As in Frazier, once the trial court asked the prosecutor to offer race-neutral reasons for striking two of the prospective jurors, it should have also requested an explanation for striking the remaining panelists that were part of the same application. The court failed to do so, and consequently, the case should be remanded for a new trial. People v Julio, 2023 NY Slip Op 04349, First Dept 8-17-23

Practice Point: When defense counsel raised Batson challenges to five jurors who had been struck, the judge limited the challenges to the two struck in the most recent round of jury selection. That was reversible error.

 

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THE SEARCH WARRANT FOR DEFENDANT’S CELL PHONE DID NOT MEET THE PARTICULARITY REQUIREMENT, THE EVIDENCE GLEANED FROM THE CELL PHONE SHOULD HAVE BEEN SUPPRESSED; NEW TRIAL ORDERED; KIDNAPPING SECOND DEGREE IS AN INCLUSORY CONCURRENT COUNT OF KIDNAPPING SECOND DEGREE AS A SEXUALLY MOTIVATED FELONY, THE COUNTS MUST BE SUBMITTED TO THE JURY IN THE ALTERNATIVE (FOURTH DEPT). ​

he Fourth Department, reversing defendant’s conviction, determined the search warrant for defendant’s cell phone was overly broad. Therefore the evidence derived from the cell phone should have been dismissed. The court noted that kidnapping in the second degree is an inclusory concurrent count of kidnapping in the second degree as a sexually motivated felony … and that the court upon retrial should submit to the jury the kidnapping in the second degree count in the alternative only:

A warrant must be “specific enough to leave no discretion to the executing officer” … . To meet the particularity requirement, a warrant must (1) “identify the specific offense for which the police have established probable cause,” (2) “describe the place to be searched,” and (3) “specify the items to be seized by their relation to designated crimes” … . Here, the search warrant simply stated that the police were directed to search defendant’s cellular phone for “digital and/or electronic evidence from August 13, 2016 to August 15, 2016.” The warrant contained no language incorporating any other documents or facts. Significantly, the search of the phone was not restricted by reference to any particular crime. Thus, the search warrant failed to meet the particularity requirement and left discretion of the search to the executing officers … . People v Saeli, 2023 NY Slip Op 04268, Fourth Dept 8-11-23

Practice Point: A search warrant for a cell phone which simply states to search for “digital and/or electronic evidence from August 13, 2016 to August 15, 2016” does not meet the particularity requirement (the warrant is overly broad).

Practice Point: Kidnapping in the second degree is an inclusory concurrent count of kidnapping in the second degree as a sexually motivated felony.

 

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THE SUPPRESSION MOTION WAS PROPERLY GRANTED; THE POLICE DID NOT HAVE REASONABLE SUSPICION WHEN DEFENDANT’S CAR WAS BLOCKED BY A POLICE CAR; THE APPELLATE COURT MAY CONSIDER A RULING WHICH WAS NOT EXPLICIT BASED ON THE CONTEXT OF THE RULING WITHIN THE RECORD (SECOND DEPT).

The Second Department, over a two-justice dissent, determined the suppression motion was properly granted because the police blocked defendant’s car before there was reasonable suspicion of criminal activity or danger to the public. The majority also concluded the issue could be decided on appeal in the absence of a specific ruling by the motion court by relying on the record for the context of the ultimate ruling:

Officer Cox’s conduct in stopping the police vehicle “directly in front of the driveway” in a position “blocking the location” where the Audi was stopped with the engine running “constituted a stop, which required reasonable suspicion that the defendant or other occupants of the vehicle were either involved in criminal activity or posed some danger to the police” … . Joyette, the driver of the Audi, could not have pulled out of the driveway due to the police vehicle blocking the driveway, and thus, the police conduct constituted a “‘significant interruption with an individual’s liberty of movement'” … .

Further, the People failed to present any evidence showing that Officer Cox and his fellow officers observed any criminal activity at the time Officer Cox blocked the Audi from leaving the driveway. * * *

While CPL 470.15 bars this Court from deciding an appeal on a ground not ruled upon by the trial court … , “nothing in the language of CPL 470.15(1) . . . prohibits an appellate court from considering the record and the proffer colloquy with counsel to understand the context of the trial court’s ultimate determination” … . Moreover, “where the trial court gives a reason [for its decision] and there is record support for inferences to be drawn from that reason, the Appellate Division does not act beyond the parameters legislatively set forth in CPL 470.15(1) when it considers those inferences” … . People v Joyette, 2023 NY Slip Op 04216, Second Dept 8-9-23

Practice Point: When the police blocked defendant’s car they did not have reasonable suspicion of criminal activity. Therefore the suppression motion was properly granted.

Practice Point: When a court’s ruling is not explicit the context of the ruling can be turned to by the appellate court to determine the exact nature of the ruling.

 

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ALTHOUGH THE ERROR WAS DEEMED HARMLESS, THE FORENSIC STATISTICAL TOOL (FST) DNA ANALYSIS SHOULD NOT HAVE BEEN ADMITTED WITHOUT HOLDING A FRYE HEARING (SECOND DEPT).

The Second Department determined the DNA analysis using the forensic statistical tool (FST) should not have been admitted in the absence of a Frye hearing. However, there error was deemed harmless:

Supreme Court improperly admitted into evidence the results of DNA analysis conducted using the forensic statistical tool (hereinafter FST) without first holding a hearing pursuant to Frye v United States (293 F 1013 [DC Cir]) … . However, this error was harmless. The evidence of the defendant’s guilt was overwhelming. The surviving police officer who was shot at by the defendant at close range, under good lighting conditions, and without obstruction identified the defendant within hours of the shooting. Other uncontested, single-source, non-FST DNA testing connected the defendant to the gun used in the shooting. Witnesses who knew the defendant and lived in the vicinity of the shooting testified that they saw the defendant running through their yards just after they heard the gun shots, holding a gun similar to the gun identified as the one used in the shooting. The defendant provided a false name to law enforcement officers canvassing the area of the shooting when he was approached by them, by which point he had abandoned some of the clothing he was wearing during the shooting, and he was apprehended wearing someone else’s ill-fitting clothes and shoes. Additionally, the People’s evidence offered in rebuttal to the defendant’s extreme emotional disturbance defense was compelling. Therefore, there is no significant probability that the jury would have acquitted the defendant had it not been for this error. People v Blackwell2023 NY Slip Op 04211, Second Dept 8-9-23

Practice Point: A DNA analysis using the forensic statistical tool (FST) should not be admitted in the absence of a Frye hearing.

 

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​ PETITIONER’S APPLICATION FOR A PISTOL PERMIT SHOULD NOT HAVE BEEN DENIED BASED UPON A 23-YEAR-OLD ARREST THAT DID NOT RESULT IN PROSECUTION; PETITIONER SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO RESPOND TO THE OBJECTIONS TO THE APPLICATION (SECOND DEPT).

The Second Department, reversing County Court, determined petitioner’s application for a residential/sportsman pistol permit should not have been denied based upon a single arrest 23 years before which did not result in prosecution. The Second Department noted that petitioner was not given the opportunity to respond to the objections to his application:

… [T]he respondent’s determination denying the petitioner’s application for a pistol permit was arbitrary and capricious … . Although the respondent was entitled to consider the petitioner’s prior arrest, the circumstances thereof did not, under the particular facts of this case, warrant the denial of the petitioner’s application. The record reflects, among other things, that the petitioner properly disclosed his arrest in his application, that the weapon in question belonged to a hitchhiker the petitioner picked up while driving his vehicle when he was 19 years old, that an investigation by the District Attorney’s office determined that the weapon belonged to the hitchhiker, that the petitioner testified before a grand jury in connection with the subject matter, that the grand jury entered a no true bill against the petitioner, and that the petitioner has no other criminal record in the 23 years between his single arrest and the date of the pistol permit application. Further, based upon the record before us, it is apparent that the respondent did not give the petitioner an opportunity to respond to the stated objections to his pistol permit application … . Matter of Cambronne v Russo, 2023 NY Slip Op 04121, Second Dept 8-2-23

Practice Point: Here the denial of petitioner’s pistol-permit application was deemed arbitrary and capricious because it was based on a 23-year-old arrest that did not result in prosecution.

Practice Point: An applicant for a pistol permit should be given an opportunity to respond to objections to the application.

 

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THE APPEAL WAIVER WAS INVALID; ALTHOUGH DEFENDANT WAS SUFFERING FROM MENTAL ILLNESS AND WAS APPARENTLY ATTEMPTING TO COMMIT SUICIDE WHEN HE CAUSED THE TRAFFIC ACCIDENT RESULTING IN THE ASSAULT CHARGE, THE MAJORITY CONCLUDED THE SEVEN-YEAR SENTENCE FOR ASSAULT (THE MAXIMUM) SHOULD NOT BE REDUCED; A TWO-JUSTICE DISSENT ARGUED THE SENTENCE SHOULD BE REDUCED; A CONCURRENCE ARGUED THE APPEAL WAIVER WAS VALID (THIRD DEPT). ​

The Third Department, over a two-justice dissent and a concurrence, determined (1) the waiver of appeal was invalid, and (2) the sentence was not harsh and excessive. The dissenters argued defendant exhibited signs of mental illness and the traffic accident which was the basis of the assault charge was a suicide attempt, warranting a lesser sentence and rehabilitative measures. The concurrence argued the appeal waiver was valid:

The written appeal waiver executed by defendant during the plea allocution is overly broad in several respects, as it purported to create an absolute bar to a direct appeal by indicating that the appeal waiver “mark[s] the end of [his] case” and precludes him from pursuing collateral relief “in any state or federal court” … . Although County Court’s brief oral allocution advised defendant that certain appellate rights survive the waiver, this was not sufficient to cure the defects in the written waiver … and did not establish that he understood that some collateral and federal review survives the waiver …  Consequently, defendant did not knowingly, intelligently and voluntarily waive the right to appeal … .

From the dissent:

… [I]t is evident that defendant’s criminal conduct was not borne of a malicious intent nor of a conscious choice to act with reckless disregard for the lives of others; rather, the entirety of his conduct appears attributable to his profound mental illness, which was no longer adequately controlled at the time of the incident and casts serious doubt on the level of his culpability. Moreover, the record reveals that, at the time of the incident, defendant was 26 years of age, had no history of prior unlawful conduct and had been a productive member of society, as demonstrated by, among other things, his participation in a reserve officer training corps program while attending college … . Under these circumstances, we find that the societal benefits of deterrence and punishment achieved through a seven-year term of imprisonment, which is the maximum legal sentence for his conviction, are minimal and, more importantly, they are far outweighed by the rehabilitative considerations that support reducing this specific defendant’s sentence … . People v Appiah, 2023 NY Slip Op 03955, Third Dept 7-27-23

Practice Point: The appeal waiver was deemed invalid because it intimated all appellate issues were precluded.

Practice Point: Although defendant was suffering from mental illness and was apparently attempting to commit suicide when he caused the traffic accident (the basis of his assault conviction), the majority concluded his seven-year sentence should not be reduced. A two-justice dissent disagreed.

 

PETITIONER SEX OFFENDER’S ABSCONDING FROM SUPERVISION IS A NON-TECHNICAL VIOLATION OF PAROLE AUTHORIZING REINCARCERATION FOR 30 MONTHS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner committed a non-technical violation of his parole (absconding from supervision) for which he could be incarcerated for 30 months. Supreme Court had determined petitioner had committed a technical violation for which he could be incarcerated for only 15 days:

… [P]etitioner was released to postrelease supervision on August 4, 2020. On August 11, 2020, petitioner was charged with violating various conditions of release, including that he not abscond from supervision, and a parole warrant was issued. In March 2021, the Department of Corrections and Community Supervision (hereinafter DOCCS) was advised that petitioner had been arrested and charged with assault. DOCCS then issued a supplemental parole violation notice that included various new violation charges, including that petitioner had committed an assault while on release. In April 2021, a final parole revocation hearing was held during which petitioner pleaded guilty to the charge of absconding from supervision in satisfaction of all the violations with which he was charged. Pursuant to the terms of the agreement, the Administrative Law Judge (hereinafter ALJ) ordered that petitioner be held for 30 months. * * *

… [P]etitioner’s condition of parole prohibiting him from absconding — that he admitted to violating, prescribing petitioner from “intentionally avoiding supervision by failing to maintain contact with my [p]arole [o]fficer and failing to reside at my approved residence” — is in line with the Legislature’s concerns regarding sex offenders released on parole and is also reasonably related to petitioner’s sex offense and efforts to protect the public from the commission of a repeat of that offense so as to warrant classifying him as a non-technical offender under Executive Law § 259 (7) (b). People ex rel. Marrero v Stanford, 2023 NY Slip Op 03964, Third Dept 7-27-23

Practice Point: Under the Less is More Act DOCCS must determine whether a parole violation is technical, allowing only minimal reincarceration, or non-technical, allowing reincarceration up to the balance of the period of post-release supervision. Here the sex offender’s absconding from supervision was deemed a non-technical violation allowing reincarceration for 30 months.

 

THE DISSENT IN THIS PERSISTENT VIOLENT FELONY OFFENDER CASE ARGUED THE 34-YEAR SENTENCE FOR THE 34-YEAR-OLD DEFENDANT WAS HARSH AND EXCESSIVE, NOTING THAT THE BURGLARIES WERE IN THE DAYTIME WHEN NO ONE WAS HOME (SECOND DEPT).

The Second Department, over a dissent, determined the 34-year sentence for four counts of burglary and related offenses was not unduly harsh or excessive. The majority concluded that the schizophrenia and bipolar mood disorder diagnoses were self-reported and unsupported:

We … disagree with our dissenting colleague that a reduction in the defendant’s sentence is warranted due to the defendant’s mental health condition. While it is undisputed that the defendant qualified for some level of mental health services, and, as the trial testimony reflected, among other things, that the defendant’s former parole officer was assigned to parolees that had a mental health diagnosis, the nature and scope of the defendant’s mental health condition was never probed at trial or at sentencing. The diagnoses of schizophrenia and bipolar mood disorder were self-reported by the defendant to the Department of Probation, but no medical records were introduced to corroborate the defendant’s statements. Moreover, at sentencing, the People introduced an audio recording of a phone call made by the defendant … , while he was incarcerated during the pendency of this matter, in which he admitted to having previously lied about having auditory hallucinations in order to acquire supportive housing.

From the dissent:

The gravity of a defendant’s criminal conduct, a defendant’s extensive criminal history, and the need for societal protection are already taken into consideration by the Penal Law provisions providing enhanced sentences for persistent violent felony offenders … . Contrary to the determination of my colleagues, nothing in this record warranted a further enhancement of the already-enhanced minimum aggregate sentence of an indeterminate term of imprisonment of 16 years to life, followed by lifetime parole supervision.

The defendant committed daytime burglaries when no one was home, and stole items such as jewelry, fur coats, and electronics. No victim had any encounter with the defendant. Even without considering any other factors, an aggregate term of imprisonment of 34 years to life is grossly disproportionate to the harm caused by the defendant’s conduct. People v West, 2023 NY Slip Op 03932, Second Dept 7-26-23

Practice Point: Here the sentence was already enhanced by defendant’s persistent violent felony status when it was further enhanced by the sentencing court. The majority concluded the sentence was not harsh and excessive. The dissent disagreed, noting that all the burglaries took place in the daytime when no one was home.

 

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DEFENDANT WAS OUTSIDE HIS RESIDENCE WHEN HE WAS ARRESTED AND A PROTECTIVE SWEEP WAS CONDUCTED INSIDE DEFENDANT’S RESIDENCE; ITEMS OBSERVED IN THE RESIDENCE WERE LATER SEIZED PURSUANT TO A SEARCH WARRANT; BECAUSE THE POLICE HAD NO REASON TO SUSPECT OTHERS WERE PRESENT IN THE RESIDENCE, THE PROTECTIVE SWEEP OF THE RESIDENCE WAS NOT JUSTIFIED AND THE OBSERVED ITEMS SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department held that items observed by the police during a “protective sweep” of his residence should have been suppressed. At the time of defendant’s arrest and the protective sweep defendant was outside of his residence. The police had no reason to believe others were inside the residence:

Upon a lawful arrest, the police may conduct a limited protective sweep of the premises, but this ‘is justified only when the police have articulable facts upon which to believe that there is a person present who may pose a danger to those on the scene’ … . The purported protective sweep conducted here was improper, as there were no articulable facts supporting a belief that any other person was present inside the trailer, let alone a person who could pose a threat to those on the scene … . Neither the search warrant nor the suppression hearing testimony reflected that anyone other than defendant was ever observed or believed to be inside the trailer, and there was nothing referenced that would serve to indicate that there was any lingering threat. People v Hadlock, 2023 NY Slip Op 03819, Third Dept 7-13-23

Practice Point: The defendant was arrested outside his residence and the police conducted a protective sweep of the residence which led to the seizure of contraband observed during the sweep. Because the police had no reason to believe anyone else was present, the sweep of the residence was not justified and the observed items should have been suppressed.

 

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AFTER DECLARING A MISTRIAL, THE JUDGE DID NOT DISMISS THE INDICTMENT OR AUTHORIZE A NEW INDICTMENT; THE SUPERSEDING INDICTMENT WAS THEREFORE A NULLITY; BECAUSE THE DEFENDANT WAS CONVICTED OF TWO COUNTS IN THE SUPERSEDING INDICTMENT WHICH WERE IN THE ORIGINAL INDICTMENT (WHICH WAS STILL VALID) THOSE CONVICTIONS WERE ALLOWED TO STAND; THE CONVICTION ON THE COUNT WHICH WAS NOT IN THE ORIGINAL INDICTMENT WAS REVERSED; DOUBLE JEOPARDY DOES NOT ATTACH AFTER A MISTRIAL (THIRD DEPT).

​The Third Department, reversing defendant’s conviction on one of three counts, determined the superseding indictment which came down after a mistrial on the original indictment was a nullity because the trial judge did not dismiss the original indictment or authorize the People to re-present a new indictment. The issue was not preserved and the Third Department considered it in the interest of justice. Because defendant had been convicted of two counts which were in the original indictment, those convictions were allowed to stand because the original indictment was never dismissed. The Third Department noted that double jeopardy principles do not attach to a mistrial. The conviction on the third count, which was not in the original indictment, was reversed:

… [B]ecause the court did not, upon declaring the mistrial on the original indictment, “dismiss the indictment or authorize the People to re-present a new indictment to the [g]rand [j]ury[,] . . . the People were limited to retrying defendant upon the same accusatory instrument” … ; thus, the superseding indictment is a nullity … . However, reversal of the judgment of conviction is not required given that both indictments contained two identical counts … . * * * This conclusion, however, does not extend to count 1 of the superseding indictment, charging defendant with criminal possession of a controlled substance in the third degree … , which was not charged in the original indictment; therefore, we reverse that conviction. To the extent that defendant raises double jeopardy concerns, as the first trial ended in a mistrial, double jeopardy principles do not attach … . People v Gentry, 2023 NY Slip Op 03818, Third Dept 7-13-23

Practice Point: If, after a mistrial, the judge does not dismiss the indictment or authorize a new indictment, the original indictment remains. Double jeopardy does not attach.

Practice Point: If, after a mistrial, a superseding indictment is brought without the trial court’s authorization, the superseding indictment is a nullity and the original indictment remains in effect.

 

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