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WHERE A MOTION TO VACATE A CONVICTION IS BASED UPON EVIDENCE OUTSIDE THE RECORD AND EVIDENCE IN THE RECORD, ALL OF THE EVIDENCE IS ADMISSIBLE IN THE HEARING ON THE MOTION; COUNTY COURT SHOULD NOT HAVE RESTRICTED THE PRESENTATIOIN OF DEFENDANT’S ALLEGATIONS OF INEFFECTIVE ASSISTANCE TO ONLY THOSE WHICH WERE OUTSIDE THE RECORD (FOURTH DEPT).

The Fourth Department, reversing the denial of defendant’s motion to vacate his conviction, determined County Court should not have restricted the hearing to only the allegations of ineffective assistance that could not have been raised on direct appeal. Where a motion to vacate a conviction is based on evidence outside the record, as well as evidence on the record, all the evidence is admissible:

A “claim of ineffective assistance of counsel constitutes a single ground or issue upon which relief is requested . . . [Such] a claim . . . ‘is ultimately concerned with the fairness of the process as a whole’ ” … and must be ” ‘viewed in totality’ ” … . Although “[a] single error may qualify as ineffective assistance . . . when the error is sufficiently egregious and prejudicial as to compromise a defendant’s right to a fair trial” … , a defendant may also establish that he or she received ineffective assistance of counsel by arguing that the cumulative effect of multiple errors rendered defense counsel’s performance ineffective, even if those errors, “considered separately, may not have constituted ineffective assistance”… . Where, as here, a defendant alleges errors of defense counsel based on both matters appearing in the record and matters dehors the record, i.e., a ” ‘mixed claim,’ ” a “CPL 440.10 proceeding is the appropriate forum for reviewing the claim of ineffectiveness in its entirety” … . People v Mack, 2021 NY Slip Op 03982, Fourth Dept 6-17-21

 

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THE STAIRWAY TO THE ATTIC, WHERE DRUGS WERE FOUND, WAS NOT PART OF THE APARTMENT DESCRIBED IN THE SEARCH WARRANT AND THE PEOPLE DID NOT DEMONSTRATE THE STAIRWAY WAS A COMMON AREA; DEFENDANT’S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department determined defendant’s motion to suppress evidence found in a stairway leading to the attic should have been granted because the warrant did not authorize the search of that area and the People did not demonstrate the stairway was a common area:

… [T]he warrant at issue authorized a search of “865 woodlawn upper apt. buffalo, n.y. 2 ½ story wood frame house white with white trim. attached garage and common areas,” and drugs and drug packaging materials were found by the police behind a doorway on stairs leading to the attic. The doorway to the attic was in a hallway outside of the upper apartment and, as a result, the attic cannot be considered a part of the upper apartment itself … . …

The question thus becomes whether the area where the drugs and packaging materials were found constitutes a common area. Common areas of multi-unit buildings are those areas ” ‘accessible to all tenants and their invitees’ ” … . Here, the contraband was found by the police on the stairs leading to the attic, and a police officer testified at the suppression hearing that there was a closed door leading to the attic from the second floor common area. The officer in question was not present when the door was opened by other officers who executed the warrant, and he did not know whether the door had been locked. When asked whether “the door could have been locked and needed to be breached,” the officer answered, “That is entirely possible.” The People did not call any of the officers who were present when the door to the attic was opened, forcibly or otherwise, nor did they call the landlord or anyone who resided at the property.

Defendant testified that the door to the attic was closed and locked, and that, during the execution of the warrant, the door was broken down by the police. If the door was indeed locked, it cannot be said that the attic was accessible to all tenants and their invitees. People v Moore, 2021 NY Slip Op 03975, Fourth Dept 6-17-21

 

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DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE (LEVEL TWO TO ONE) IN THIS CHILD PORNOGRAPHY CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for a downward departure in this child pornography case should have been granted:

At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C) to determine the defendant’s risk level, defense counsel requested that, despite the defendant’s score on the risk assessment instrument, which placed him at the lower end of the presumptive level two risk category, the Supreme Court should exercise its discretion to grant a downward departure and designate the defendant a level one sex offender … . …

Under the circumstances of this case—including, among other things, the small number of images found on the defendant’s cell phone and the absence of any evidence of child pornography on his laptop, the brief period of time during which the defendant is alleged to have collected child pornography, the defendant’s lack of criminal history, and a psychosexual evaluation report finding that the defendant’s risk of reoffense was low—we find that a preponderance of the evidence established that the risk assessment instrument overassessed the defendant’s risk of reoffense, and that his request for a downward departure should be granted in the exercise of discretion … . People v Sestito, 2021 NY Slip Op 03859, Second Dept 6-15-21

 

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DEFENDANT DID NOT USE ANY PHYSICAL FORCE IN REFUSING TO COOPERATE AFTER A TRAFFIC STOP; OBSTRUCTION OF GOVERNMENTAL ADMINISTRATION CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction of obstructing governmental administration second degree, determined there was no evidence the defendant used physical force. Passive refusal to cooperate after a traffic stop is not enough:

… [T]he defendant was argumentative throughout the traffic stop and arrest-booking process, repeatedly refused to answer the officers’ questions, and refused to participate physically in any way in the arrest-booking process, including refusing to stand for a photograph, to provide his fingerprints, or to sign a Miranda form … . The People concede that the defendant did not physically resist the officers, but argue that his conduct constituted physical interference because he refused to cooperate physically in the arrest-booking process. However, neither the defendant’s conduct during the traffic stop nor his conduct during the arrest-booking process constituted a knowing, physical interference with, and disruption of, the official function being performed by the officers. The defendant did not struggle, physically resist, or do anything to interfere with the officers, and he did not intrude into, or get in the way of, any ongoing police activity … . The defendant’s passive unwillingness to cooperate with the officers during the traffic stop and arrest-booking process lacked the requisite intentional physical component … . People v Johnson, 2021 NY Slip Op 03851, Second Dept 6-16-21

 

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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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