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TESTIMONY THAT THE FREQUENCY OF SEXUAL RELATIONS BETWEEN DEFENDANT AND HIS WIFE DROPPED OFF PRECIPITOUSLY AT ABOUT THE TIME THE CHILD ALLEGED THE SEXUAL ABUSE BEGAN SHOULD NOT HAVE BEEN ADMITTED BECAUSE IT ALLOWED THE JURY TO SPECULATE ABOUT THE REASON FOR THE DROP-OFF; SEXUAL ASSAULT OF A CHILD AND RAPE CONVICTIONS REVERSED AND NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant predatory-sexual-assault-against-a-child and rape convictions and ordering a new trial, determined it was error to allow defendant’s wife to testify that the frequency of their sexual relations dropped off precipitously at about the time the child-victim began to be abused. The testimony was erroneously deemed to constitute circumstantial evidence of the abuse:

… [T]he “fact” testified to, the significant reduction in the frequency of the couple’s sexual encounters, is not a fact from which the jury could reasonably infer the existence of a fact material to the charges against defendant, i.e., whether he sexually abused the victim. Rather, it allows the jury to impermissibly speculate that the reason that defendant and the victim’s mother had less frequent sex was because he replaced one sexual partner, the victim’s mother, with another, the victim. Furthermore, “[i]t is axiomatic that evidence bearing on the sexual climate of a household is inadmissible where it does not tend to prove a material element of the crime charged and is introduced simply to demonstrate a predisposition to commit the subject offense” … . Although such testimony may be admitted if it demonstrates the relationship between the parties or completes a sequence of events … , the testimony in this case was not offered to prove a material element of the case, the relationship of the parties, nor was it an integral part of the sequence of events leading to the criminal conduct or delay in the disclosure. The People candidly admitted that the purpose of the testimony was to convince the jury that defendant, who the victim’s mother testified had exhibited a vociferous sexual appetite, suddenly stopped having frequent sex with her and filled the void with the victim. As such, County Court erred in allowing the testimony. People v Hansel, 2021 NY Slip Op 07035, Third Dept 12-16-21

 

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THE ELICITATION OF TESTIMONY FROM A DETECTIVE THAT DEFENDANT INVOKED HIS RIGHT TO COUNSEL AND HIS RIGHT AGAINST SELF-INCRIMINATION WAS SUBJECT TO A HARMLESS ERROR ANALYSIS AND DID NOT REQUIRE REVERSAL; THE DISSENT ARGUED THE ABSENCE OF A CURATIVE INSTRUCTION RENDERED THE ERROR REVERSIBLE (THIRD DEPT).

The Third Department determined the People’s improper elicitation of a detective’s testimony that defendant invoked his right to counsel and his right against self-incrimination was subject to a harmless error analysis and did not require reversal. The dissent disagreed:

A defendant’s invocation of his or her right against self-incrimination and/or his or her right to counsel during a custodial interrogation may not be used against him or her as part of the People’s case-in-chief … .  This is because such evidence “creates a prejudicial inference of consciousness of guilt” … . However, the People’s improper elicitation of the prejudicial evidence does not automatically result in a reversal of the judgment of conviction, even in the absence of a curative instruction or in the face of a deficient curative instruction … . Rather, any such constitutional error is subject to a harmless error analysis … . * * *

From the dissent:

The majority would have this Court engage in a harmless error analysis, whereas I would follow this Court’s articulation in People v Knowles (42 AD3d at 665), rejecting such an analysis if the trial court fails to provide “prompt and emphatic curative instructions that the jury may not draw any adverse inferences from [the] defendant’s request for counsel.” As County Court failed to do so here, defendant’s conviction should be reversed. People v Serrano, 2021 NY Slip Op 07037, Third Dept 12-16-21

 

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DESPITE DEFENSE COUNSEL’S ADMISSION BEFORE THE MOTION COURT THAT HE DID NOT PROPERLY INVESTIGATE THIS MURDER CASE, DEFENDANT DID NOT DEMONSTRATE THAT COUNSEL WAS INEFFECTIVE OR THAT THE ALLEGED INEFFECTIVENESS MET THE CRITERIA FOR A CONFLICT OF INTEREST (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, determined defendant did not demonstrate his attorney provided ineffective assistance, despite the attorney’s statements to the trial court acknowledging his failure to timely investigate the case, which led to his request to file a late alibi notice (the request was granted). The defendant told the trial court he did not want to change attorneys. And the trial court appointed a co-counsel. The First Department also rejected the unusual argument that defense counsel’s ineffectiveness constituted a conflict of interest:

… [D]efendant has not shown how defense counsel’s performance deprived him of a fair trial. Defense counsel’s self-proclaimed failures to properly investigate and prepare this murder case for trial are disturbing. Nevertheless, defendant has not shown that counsel’s lapses deprived him of any useful information or negatively impacted his ability to mount a defense. Defendant only speculates that a proper investigation and trial preparation might have yielded something helpful to the defense, but he does not suggest what that exculpatory information might be … . …

Defendant concedes that the conflict here is “not typical” as it is “derived from and centered on [defense counsel’s] ineffectiveness.” … Defendant argues that the conflict occurred when his counsel refused to withdraw from representation for personal reasons, despite conceding that he did not effectively investigate the case and prepare for trial. However, defendant cannot “demonstrate that the conduct of his defense was in fact affected by the operation of the conflict of interest” … . After defense counsel declined to withdraw and defendant noted that he wished to proceed with counsel, the motion court appointed cocounsel to assist the defense … . … [T]he defense was not affected by operation of the conflict because after defense counsel declined to withdraw, defense counsel and cocounsel effectively represented defendant at trial. People v Graham, 2021 NY Slip Op 07068, First Dept 12-16-21

 

AFTER PLEADING GUILTY IN FULL SATISFACTION OF THE CHARGES IN THE INDICTMENT, A SECOND PLEA TO ANOTHER COUNT OF THE INDICTMENT WAS PRECLUDED (FIRST DEPT).

The First Department, vacating defendant’s conviction by guilty plea and dismissing the relevant count, determined initial pleas in full satisfaction of the charges in the indictment precluded a second plea to another count in the indictment:

As the People concede, defendant’s first plea, to one count of third-degree sale of a controlled substance, was in full satisfaction of the entire indictment, so that defendant’s later plea to a second count of that indictment was not permissible … . When the second plea court sought to add a plea to an additional count as part of a renegotiated disposition conditioned on drug treatment, it could only have done so by “reinstatement. . . [of the indictment] which could have been accomplished by permitting the defendant to withdraw his original plea of guilty to [the first count]” … . People v Turane, 2021 NY Slip Op 07071, First Dept 12-16-21

 

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THE SEX TRAFFICKING STATUTE HAS TWO LINKED BUT DISTINCT ELEMENTS WHICH WERE PROPERLY EXPLAINED TO THE JURY IN THE INITIAL JURY INSTRUCTIONS; HOWEVER THE SUPPLEMENTAL INSTRUCTION IN RESPONSE TO A JURY NOTE ERRONEOUSLY COLLAPSED THE STATUTE TO A SINGLE ELEMENT; NEW TRIAL ORDERED ON THE SEX TRAFFICKING COUNTS (CT APP).

The Court of Appeals, in a brief memorandum, vacating the sex trafficking convictions and ordering a new trial, over two lengthy concurrences and a dissent, determined the supplemental jury instruction failed to explain to the jury that the sex trafficking statute has two linked but distinct elements which must be proven to convict. The positions taken by the concurrences differ and are too nuanced to fairly summarize here:

The sex trafficking statute is comprised of two distinct but linked elements, namely the offender must advance or profit from prostitution by one of the enumerated coercive acts (see Penal Law § 230.34). The trial court’s supplemental instruction, in response to a jury note, erroneously severed the required link between those elements. Accordingly, defendant’s sex trafficking convictions should be vacated, and a new trial held on those counts … . * * *

From Judge Singas’s Concurrence:

Collapsing sex trafficking into a single-element crime would cast too small a net, unjustifiably limiting the jurisdiction of this State to prosecute only those cases where the entire crime occurred in New York. Just as significantly, treating the statute’s two elements as unlinked could unjustifiably authorize prosecution of crimes in New York for extraterritorial conduct having no impact on the public safety of the state. Accordingly, we would hold that the sex trafficking statute is comprised of two discrete yet connected elements, to wit, the offender must advance or profit from prostitution through coercive acts taken in furtherance of his or her prostitution enterprise. People v Lamb, 2021 NY Slip Op 07057, CtApp 12-16-21

 

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IN THIS FAMILY OFFENSE PROCEEDING, THE JUDGE SHOULD NOT HAVE PLACED TIME AND TESTIMONY RESTRICTIONS ON THE HEARING; ORDER REVERSED AND NEW HEARING ORDERED (FIRST DEPT).

The First Department, reversing Family Court and ordering a new hearing in this family offense proceeding, determined the judge should not have placed time and testimony restrictions on the hearing:

Order of fact-finding and disposition … , which, after a hearing, determined that respondent husband committed the family offense of harassment in the second degree, and entered a one-year order of protection directing him … to refrain from assaulting or harassing petitioner wife and the parties’ two children … , unanimously reversed … .

Family Court erred in not conducting a full fact-finding hearing. The court improperly restricted the hearing, without notice to the parties to just 15-20 minutes and limited the testimony, including that of petitioner wife. Given this, Family Court is directed to conduct a full hearing on the petition and make the requisite factual findings … . Matter of Kristina M. v Paul M., 2021 NY Slip Op 06957, First Dept 12-14-21

 

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DEFENDANT FAILED TO CHALLENGE THE PREDICATE FELONY STATEMENT IN THE LOWER COURT; THEREFORE THE ALLEGED ERROR WAS NOT PRESERVED FOR APPEAL (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the alleged error in the CPL 400.21 predicate felony statement was not preserved for appeal:

Because defendant failed to challenge the CPL 400.21 predicate felony statement filed by the People in the court of first instance, her claim that her sentence was illegal due to the failure to include the tolling periods in that document did not present a question of law for purposes of appellate review … .  Defendant’s claim was not reviewable under the narrow illegal sentence exception to the preservation requirement because it was not “readily discernible from the trial record” that the sentence the court imposed was not within the permissible range … . People v Lashley, 2021 NY Slip Op 06938, CtApp 12-14-21

 

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UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE, AN OBJECTION WAS NECESSARY TO PRESERVE THE ERROR RELATED TO DEFENDANT’S ABSENCE FROM A SIDEBAR CONFERENCE ABOUT A PROSPECTIVE JUROR; DEFENDANT SUBSEQUENTLY WAIVED HIS RIGHT TO BE PRESENT AND WAS GIVEN THE OPPORTUNITY TO OBJECT TO HIS ABSENCE FROM THE PRE-WAIVER SIDEBAR (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a three-judge dissent, determined the defendant’s absence from a sidebar conference regarding a prospective juror did not require reversal. Subsequent to the the sidebar, defendant waived his right to be present at sidebar conferences and was given the opportunity to object to the pre-waiver sidebar. Under these circumstance, the Court of Appeals held, although normally not required, an objection was necessary to preserve the error for appeal:

When a defendant is not present at a sidebar conference wherein the court actively solicits answers from a prospective juror which relate to issues of bias or hostility, People v Antommarchi (80 NY2d 247 [1992]) requires a new trial in the absence of defendant’s waiver of the right to be present. Defendant’s protest in the trial court is generally not required. The purpose of the Antommarchi rule, as derived from CPL 260.20, is to provide defendant the opportunity to personally assess the juror’s facial expressions and demeanor in order to provide meaningful input on the prospective juror’s retention or exclusion from the jury. The question presented on this appeal is whether defendant, having explicitly waived his Antommarchi right to be present at sidebars in the middle of the voir dire proceeding involving a prospective juror who was ultimately struck when codefendant exercised a peremptory strike, is entitled to a new trial based on his absence from a pre-waiver sidebar conference with that same prospective juror. We conclude that the claimed error, under these unique circumstances, required defendant’s protest in the trial court given his acquiescence in the post-waiver voir dire of the prospective juror after being invited to express any objection that he may have had regarding the pre-waiver sidebar conference. People v Wilkins, 2021 NY Slip Op 06936, CtApp 12-14-21​

 

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THE ARRESTING DETECTIVE SHOULD NOT HAVE BEEN ALLOWED TO IDENTIFY THE PERSON DEPICTED IN SURVEILLANCE VIDEOS AS THE DEFENDANT, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined the arresting detective should not have been allowed to identify the person depicted in two surveillance videos as the defendant:

The court should not have permitted the arresting detective to give lay opinion testimony that defendant was the person depicted in two surveillance videos. In this case, the alleged difference in appearance — the addition of eyeglasses — was de minimis, and the jury had access to photos of defendant without eyeglasses … . The People do not point to any case in which lay opinion testimony was permitted based on such a slight change in appearance. Moreover, “no other circumstance suggested that the jury, which had ample opportunity to view defendant, would be any less able than the [officer] to determine whether he was seen in the videotape” … . Indeed, at the time of trial, the arresting detective was a 20-year veteran of the force and had 14 years experience investigating robberies and burglaries on the Lower East Side, where the incident occurred. He had made nearly 600 arrests and assisted in approximately 200 others. Stating twice that the perpetrator in this case was defendant carried significant weight in the eyes of the jury. Although the court provided limiting instructions, “[t]ruly prejudicial evidence cannot be erased from a juror’s mind by the court’s instructions” … . People v Challenger, 2021 NY Slip Op 06927, First Dept 12-9-21

 

THE DEFENSE FOR CAUSE CHALLENGE TO A JUROR WHO SAID SHE WOULD EXPECT THAT THE DEFENSE WOULD PRESENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the defense for cause challenge to a juror should have been granted:

“[A] prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial” … . Here, the prospective juror’s statements to the effect that she would expect the defense to present evidence raised a serious doubt about her ability to be impartial and her subsequent responses fell short of providing “unequivocal assurances of impartiality” … . People v Feddaoui, 2021 NY Slip Op 06859, Second Dept 12-8-21

 

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