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THE COURT SHOULD HAVE HELD A FRYE HEARING ON THE ADMISSIBILITY OF DNA-RELATED EVIDENCE GENERATED BY THE FORENSIC STATISTICAL TOOL (FST); CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the court should have held a Frye hearing on the admissibility of DNA-related evidence generated by the Forensic Statistical Tool (FST):

Prior to trial, the Supreme Court denied the defendant’s motion to preclude the People from introducing at trial DNA testing results and testimony concerning the Forensic Statistical Tool (hereinafter FST) or, in the alternative, for a hearing pursuant to Frye v United States (293 F 1013 [DC Cir]) to determine the admissibility of the evidence generated by the FST.

The Supreme Court improvidently exercised its discretion in admitting FST evidence without first holding a Frye hearing … . As proof of the defendant’s guilt was not overwhelming without the FST evidence … , the error was not harmless … . Accordingly, the judgment of conviction must be reversed and a new trial ordered. People v Applewhite, 2021 NY Slip Op 03847, Second Dept 6-16-21

 

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BECAUSE THE STATE, NOT THE TOWN, OWNS THE LAND BENEATH THE LAKE, THE TOWN DID NOT HAVE JURISDICTION TO BRING CRIMINAL CHARGES BASED UPON THE CONSTRUCTION OF DOCKS; THE CRIMINAL MATTER WAS DISMISSED ON THAT GROUND AND PLAINTIFFS BROUGHT A MALICIOUS PROSECUTION ACTION; BECAUSE THE CRIMINAL MATTER WAS TERMINATED IN PLAINTIFFS’ FAVOR THE MALICIOUS PROSECUTION ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the underlying criminal matter brought against the plaintiffs (the Melchers) by the town had been terminated in favor of the plaintiffs. Therefore the plaintiffs’ malicious prosecution action against the town should not have been dismissed. The town brought criminal charges based upon plaintiffs’ construction of docks in a marina. Pursuant to the Navigation Law, the state owns the land beneath the lake and the town, therefore, did not have jurisdiction to bring the criminal charges. The criminal charges had been dismissed on that ground:

In order to maintain a civil action to recover damages for malicious prosecution, a plaintiff must show “(1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding, and (4) actual malice” … . A criminal proceeding terminates favorably to the accused where the disposition is final, “such that the proceeding cannot be brought again” … , and the disposition is not “inconsistent with a plaintiff’s innocence” … . Whether a disposition was inconsistent with innocence is a case-specific determination that considers the circumstances of the particular case … .

Here, the 2008 criminal proceeding was dismissed for lack of jurisdiction pursuant to CPL 170.30(1)(f) because the Town lacked legal authority to regulate the activity upon which the criminal charges were based. In the dismissal order, the Supreme Court found that “jurisdiction over the [Melchners] ha[d] never been properly obtained and accordingly the [Melchners] [could] not be prosecuted for the offenses alleged.” Under the circumstances, the disposition was not inconsistent with the Melchners’ innocence … . Melchner v Town of Carmel, 2021 NY Slip Op 03830, Second Dept 6-16-21

 

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BECAUSE THE COURT WAS NOT AUTHORIZED TO PLACE PETITIONER IN CUSTODY, THE COURT COULD NOT ORDER PETITIONER TO BE REMANDED TO RIKER’S ISLAND FOR A CPL ARTICLE 730 EXAMINATION; THE HABEAS CORPUS PETITION SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department determined Supreme Court was not authorized to remand the petitioner, Wei Li, to Riker’s Island for a CPL article 730 examination because defendant was charged with a misdemeanor and was not in custody. Therefore the habeas corpus petition should have been granted:

… [T]he references in CPL 730.20(2) and (3) to the defendant either having been theretofore released on bail or on his or her own recognizance, or being in custody, respectively, at the time a court issues an order of examination presuppose that a securing order has been issued upon arraignment as required by law (see CPL 170.10[7]; 210.15[6]; 510.10[1]). As such, a defendant’s previously determined, or statutorily mandated, liberty status—either release or in custody—cannot be changed because a CPL article 730 examination is ordered: if the defendant has been ordered released (or, as in the case of non-qualifying offenses, is required to be released), then the court is authorized (“may “) only to direct that the examination be conducted on an outpatient basis or, under certain circumstances, that the defendant be confined in a hospital until the examination is completed (see CPL 730.20[2]); if the defendant has been committed to custody, then he or she must remain in custody for the examination, even if he or she must be taken to a hospital for purposes of conducting same (see id. § 730.20[3]). A defendant who has been ordered released, or, as in Wei Li’s case, was statutorily entitled to release (see CPL 510.10[3]; 530.20[1]), cannot be jailed because the court ordered a CPL article 730 examination. People v Warden, 2021 NY Slip Op 03867, Second Dept 6-16-21

 

DURING THE BATSON PROCEDURE, THE PROSECUTOR’S RACE-NEUTRAL EXPLANATION FOR A PEREMPTORY JUROR CHALLENGE WAS NOT SUPPORTED BY THE RECORD AND SHOULD NOT HAVE BEEN ACCEPTED BY THE COURT, NEW TRIAL ORDERED; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the race-neutral explanation for the prosecutor’s peremptory challenge to a juror was not borne out by the record. A new trial was ordered. The prosecutor argued the prospective juror referred to police conduct as “harsh.” But the prospective juror was apparently commenting on general differences between living in Rochester and Brooklyn, not the police:

We conclude that reversal is required because the race-neutral reason proffered by the prosecutor and accepted by the court is not borne out by the record … . Although the record need not conclusively establish that a prospective juror actually harbors bias in order for a bias-based peremptory challenge to withstand review under Batson … , a proffered race-neutral reason cannot withstand a Batson objection where it is based on a statement that the prospective juror did not in fact make … . Here, the record does not support the prosecutor’s characterization of the prospective juror’s statements. We therefore reverse the judgment and grant a new trial on count one of the indictment … . People v Coleman, 2021 NY Slip Op 03695, Fourth Dept 6-11-21

 

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ALTHOUGH ONE OF THREE STATEMENTS MADE TO A DETECTIVE AFTER DEFENDANT HAD INVOKED HIS RIGHT TO COUNSEL WAS NOT SPONTANEOUS, ITS ADMISSION WAS HARMLESS ERROR; THE DISSENT ARGUED ALL THREE STATEMENTS SHOULD HAVE BEEN SUPPRESSED AND THE CONSTITUTIONAL ERROR WAS NOT HARMLESS (FOURTH DEPT).

The Fourth Department, over a dissent, determined that two of three statements made after defendant had invoked his right to counsel were spontaneous and properly admitted. The third statement was deemed a response to the functional equivalent of interrogation, but its admission was harmless error. The dissent argued that all three statements should have been suppressed and the constitutional error was not harmless:

[The] statements were made by defendant after the interrogation ceased and while a detective was sitting next to him, completing the arrest paperwork. After the detective asked him certain pedigree questions, defendant asked “How’s Annie doing?,” referring to decedent’s wife. The detective replied that she was “hurt” and said that she “lost the person she loved the most in life.” The detective then asked defendant if he wanted another coffee or soda and, after defendant responded that he would like another cup of coffee, he started crying. The detective whispered “good response” and told him “that’s remorse.” There was a brief interruption when another detective opened the door to the interview room and discussed lunch plans with the first detective, and the first detective then asked defendant if he was hungry. Defendant responded “yeah,” and then stated “it wasn’t supposed to happen like that” and that he “didn’t mean for any of that to happen” (first statement). After the detective responded “I understand,” defendant stated “I just wanted to prank ’em just like jig ’em” (second statement). After the detective responded with several statements including that “remorse is what we wanted to see” and that the police did not think that defendant’s intentions were to kill anyone, defendant said “I should’ve just stuck around. Maybe I coulda [sic] done something” (third statement). * * *

With respect to the third statement, we agree with defendant that it was not spontaneous because it was made in response to the functional equivalent of express questioning by the detective … . People v Bowen, 2021 NY Slip Op 03685, Fourth Dept 6-11-21

 

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ALTHOUGH THE POLICE IN THIS STREET STOP CASE MAY HAVE HAD CAUSE FOR A LEVEL ONE INQUIRY (A CAN IN A PAPER BAG), THEY IMMEDIATELY ENGAGED IN LEVEL TWO INVASIVE QUESTIONING FOCUSED ON DEFENDANT’S POSSIBLE VIOLATION OF THE OPEN CONTAINER LAW; DEFENDANT’S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, over a two-justice dissent, determined defendant’s motion to suppress based upon the illegal street stop should have been granted. The police may have been justified in a level one (DeBour) inquiry based upon an apparent violation of the open-container law (a can in a paper bag), but the police immediately moved to a level two encounter with invasive questioning about the container in the paper bag:

At the first level of a police-civilian encounter, i.e., a request for information, a police officer may approach an individual “when there is some objective credible reason for that interference not necessarily indicative of criminality” (De Bour, 40 NY2d at 223), and “[t]he request may ‘involve[] basic, nonthreatening questions regarding, for instance, identity, address or destination’ ” … .”The next degree, the common-law right to inquire, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a [police officer] is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure” (De Bour, 40 NY2d at 223).

Here, even assuming, arguendo, that the officers possessed a level one right to approach defendant and his companion … the officers nonetheless immediately “engaged in a level two intrusion, i.e., ‘a more pointed inquiry into [the] activities [of defendant and his companion]’ . . . , by asking ‘invasive question[s] focusing on the possible criminality of the subject’ ” … . Notably, the officers did not see defendant or his companion drinking from whatever item was in the paper bag, and there were no other attendant circumstances indicative of criminal behavior that would warrant the more pointed inquiry at the outset … . People v Wright, 2021 NY Slip Op 03675, Fourth Dept 6-11-21

 

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DEFENDANT’S REQUEST TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF ATTEMPTED STRANGULATION SECOND DEGREE SHOULD HAVE BEEN GRANTED; NEW TRIAL ON THAT CHARGE ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of strangulation second degree, determined the request to instruct the jury to consider the lesser included offense of attempted strangulation second degree should have been granted. There was a reasonable view of the evidence which would have allowed the jury to find the victim did not suffer physical injury:

… [T]he disputed issue is whether there is a reasonable view of the evidence supporting a determination of guilt on the lesser count but not the higher count. Strangulation in the second degree requires proof that the victim suffered stupor, loss of consciousness, or physical injury or impairment (Penal Law § 121.12). Inasmuch as there was no evidence that the complainant suffered stupor or loss of consciousness, defendant’s guilt of this offense rested entirely on the evidence that the complainant sustained a physical injury. Viewing the evidence in the light most favorable to defendant … , we conclude that a reasonable view of the evidence would have supported a determination that the complainant did not sustain a physical injury and thus that defendant was guilty of only the lesser offense and not the greater … . People v Swift, 2021 NY Slip Op 03785, Fourth Dept 6-11-21

 

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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA ON INEFFECTIVE ASSISTANCE OF COUNSEL GROUNDS; DEFENDANT AVERRED HE WAS NOT INFORMED OF THE RISK OF DEPORTATION ASSOCIATED WITH THE PLEA (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to vacate his conviction on ineffective assistance grounds. Defendant averred that he was not informed of the risk of deportation associated with his guilty plea:

… [I]n the context of a plea of guilty, an attorney’s failure to advise a criminal defendant, or affirmative misadvice to the defendant, regarding the clear removal consequences of the plea constitutes deficient performance” … . In such cases, relief will depend upon whether the defendant can demonstrate prejudice as a result thereof … . …

… [T]he defendant avers that he was not advised of the immigration consequences of his pleas of guilty, and there is no evidence in the transcript of the extremely brief plea proceeding that defense counsel advised the defendant of such consequences. Moreover, the defendant’s averments, including that he has been in a long-term relationship with a United States citizen, with whom he has four children, sufficiently alleged that a decision to reject the plea offer, and take a chance, however slim, of being acquitted after trial, would have been rational … . People v Bernard, 2021 NY Slip Op 03601, Second Dept 6-9-21

 

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DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POSTRELEASE SUPERVISION AT THE TIME OF THE GUILTY PLEA; PLEA VACATED (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined the plea was not knowingly and voluntarily entered because defendant was not informed of the period of postrelease supervision:

… [F]or a plea of guilty to be knowing, intelligent, and voluntary, the court must inform the defendant of either the specific period of postrelease supervision that will be imposed or, at the least, the maximum potential duration of postrelease supervision that may be imposed … . People v Benitez, 2021 NY Slip Op 03600, Second Dept 6-9-21

Similar issue and result in People v Dillon, 2021 NY Slip Op 03607, Second Dept 6-9-21

 

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IN DETERMINING WHETHER A PRIMA FACIE CASE HAS BEEN MADE OUT IN A FAMILY OFFENSE PROCEEDING, CREDIBILITY IS IRRELEVANT (SECOND DEPT).

The Second Department, reversing Family Court, determined the motion to dismiss the family offense petition for failure to make out a prima facie case should not have been granted, noting that the credibility of the evidence is not a factor to be considered at that stage:

In a family offense proceeding, the petitioner has the burden of establishing that the charged conduct was committed as alleged in the petition by a fair preponderance of the evidence (see Family Ct Act § 832 … ). “‘In determining a motion to dismiss for failure to establish a prima facie case, the evidence must be accepted as true and given the benefit of every reasonable inference which may be drawn therefrom . . . The question of credibility is irrelevant, and should not be considered'” ). Here, the Family Court failed to properly apply this standard. Viewing the petitioner’s evidence in the light most favorable to her, and accepting the evidence as true, it established a prima facie case … . Matter of Prince v Ford, 2021 NY Slip Op 03591, Second Dept 6-9-21

 

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