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COURSE OF SEXUAL CONDUCT COUNT VACATED AS AN INCLUSORY CONCURRENT COUNT OF PREDATORY SEXUAL ASSAULT AGAINST A CHILD (FIRST DEPT).

The First Department noted that the course of sexual conduct conviction must be vacated as an inclusory concurrent count of predatory sexual assault against a child. People v Encarnacion, 2020 NY Slip Op 06067, First Dept 10-27-20

 

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DEFENSE COUNSEL WAS GIVEN NOTICE AND THE OPPORTUNITY TO BE HEARD BEFORE THE ISSUANCE OF THE WARRANT TO TAKE A DNA SAMPLE FROM THE DEFENDANT; DEFENSE COUNSEL WAS NOT ENTITLED TO DISCOVERY OF THE WARRANT APPLICATION PRIOR TO THE ISSUANCE OF THE WARRANT TO ASSESS PROBABLE CAUSE; A VIDEO DEPICTING DEFENDANT WAS PROPERLY AUTHENTICATED; APPELLATE DIVISION REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurrence and a two-judge dissent, reversing the Appellate Division, determined defendant was not entitled to review the application for the warrant to collect DNA evidence from the defendant’s person before the warrant was issued. Defense counsel was given notice and an opportunity to be heard on the application and did not contest the reasonableness of the bodily intrusion at that time. The Appellate Division held (1) the defense was entitled to review the search warrant application before the warrant was issued (to assess probable cause) and (2) a video depicting the defendant was not properly authenticated. The Court of Appeals reversed on both issues:

The [Appellate Division] held that Supreme Court erred in precluding defense counsel from reviewing the search warrant application and in denying counsel the opportunity to be heard on the issue of probable cause. The Court rejected the People’s argument that Abe A. [56 NY2d 288] requires notice only for the first level of intrusion—seizure of the person—and held that the due process requirement of notice and an opportunity to be heard is likewise required for the subsequent search and seizure of corporeal evidence. The Court also held that the People failed to adequately authenticate the YouTube video … . * * *

It is evident that Abe A.’s requirement of notice and an opportunity to be heard in the pre-execution stage of a warrant authorizing the seizure of evidence by bodily intrusion was satisfied in this case. Defense counsel, having received notice of the hearing on the warrant, was given an opportunity to be heard on the application, other than on the issue of probable cause. Counsel failed to direct any argument to the nature of the intrusion, the value of comparative DNA analysis evidence or the sufficiency of the safeguards preventing unwarranted disclosure of the results of his DNA testing, either at the hearing or in his motion to suppress. …  [T]he method and procedures employed in taking the saliva undoubtedly respected relevant Fourth Amendment standards of reasonableness, and defendant’s claim that the failure to provide him discovery of the extant probable cause and an adversarial hearing nonetheless warrants the invocation of the exclusionary rule is without constitutional basis.

[With respect to the video,] …defendant did not dispute that he was the individual who appeared in the video reciting certain words [and] the video contains distinctive identifying characteristics … . … [T]estimony … provided evidence pertinent to the timing of the making of the video—including defendant’s admission of his future intent to make the video the next morning … —and the video was uploaded to YouTube close in time to the homicide. … [T]he video was introduced for its relevance to defendant’s motive related to territorial gang activity—which is not an element of the offense—rather than specifically offered for its truth. People v Goldman, 2020 NY Slip Op 05977, Ct App 10-22-20

 

 

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IN A VEHICULAR MANSLAUGHTER CASE, THE STANDARD OF PROOF OF IMPAIRMENT FROM MARIJUANA IS THE SAME AS THE STANDARD OF PROOF OF IMPAIRMENT FROM ALCOHOL (THIRD DEPT).

The Third Department, in a comprehensive opinion by Justice Lynch, affirmed defendant’s conviction stemming from a collision with a motorcycle at a time when defendant was impaired by marijuana (THC). The decision, which lays out the law of vehicular manslaughter, carefully goes through evidence of impairment and causation. The opinion is too detailed to be fairly summarized here. It is worth noting that, on the issue of impairment, the opinion indicates a prior decision describing a different standard of proof of impairment for marijuana, as opposed to alcohol, should no longer be followed. The same standard of proof of impairment is applied to the drugs enumerated in Public Health Law 3306, including marijuana, as is applied to alcohol:

… [T]he degree of impairment necessary to convict a motorist of vehicular manslaughter in the second degree based upon a death that was caused while such motorist was under the influence of one of the drugs enumerated in Public Health Law § 3306 (which includes marihuana) is the same degree of impairment as would be necessary to sustain a conviction of driving while intoxicated by alcohol — namely, the People must prove that such motorist was “incapable of employing the physical and mental abilities which he [or she was] expected to possess in order to operate a vehicle as a reasonable and prudent driver” … . To the extent that this Court’s decision in People v Rossi (163 AD2d 660, 662 [1990], lv denied 76 NY2d 943 [1990]) can be read as holding that a conviction of vehicular manslaughter in second degree based upon a violation of Vehicle and Traffic Law § 1192 (4) only requires proof that the motorist was impaired “to any extent,” it should no longer be followed. People v Caden N., 2020 NY Slip Op 05979, Third Dept 10-22-20

 

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RESPONDENT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN THE JULY 2015 MENTAL HYGIENE ARTICLE 10 TRIAL; COUNSEL WAS INEFFECTIVE IN NOT REQUESTING A FRYE HEARING ON THE VALIDITY OF THE OSPD DIAGNOSIS; MATTER REMITTED FOR A FRYE HEARING BASED UPON WHAT WAS KNOWN ABOUT THE DIAGNOSIS AT THE TIME OF THE 2015 TRIAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, remitting the matter for a Frye hearing, determined respondent was deprived of effective assistance of counsel in the July 2015 Mental Hygiene Article 10 trial because counsel did not request a Frye hearing on the validity of the “other specific paraphilic disorder (nonconsent)” (OSPD) diagnosis. It was not until just after the July 2015 trial that courts recognized it was an abuse of discretion to deny a Frye hearing regarding OSPD, but there was a substantial amount of literature calling the diagnosis into question at the time of the trial:

When evaluating whether counsel’s failure to request a pretrial Frye hearing in this case constituted ineffective assistance, counsel’s posttrial motion practice sheds light on what counsel knew, or should have known, prior to trial about the acceptance of paraphilic disorders. Counsel filed a posttrial motion, apparently at respondent’s urging, to preclude from the dispositional hearing evidence of OSPD (nonconsent) and other paraphilic disorders by any name. In his motion papers, counsel not only cited to several of the foregoing trial court cases that had been recently issued, but also annexed several scientific articles from 2014, 2011 and 2008 that highlight the controversial nature and forensic misuse of paraphilic disorders generally or outright reject PNOS (nonconsent) or OSPD (nonconsent) as diagnoses reliable enough for the courtroom. At least one of these articles, as well as counsel’s cross-examination of [an expert] at trial, reveal that counsel was at least generally aware that defined nonconsent paraphilias or paraphilic disorders had been rejected for inclusion in various versions of the Diagnostic and Statistical Manual … . * * *

… [H]ad counsel been successful at a pretrial Frye hearing in precluding consideration of OSPD (nonconsent), it is possible that respondent could have had the petition dismissed before trial … . … In other words, counsel “had everything to gain and nothing to lose” by challenging OSPD (nonconsent) in a Frye hearing … . … [T]his single failing deprived respondent of the effective assistance of counsel … . Accordingly, we hold the appeal … in abeyance and remit the matter to Supreme Court for a posttrial Frye hearing to consider the reliability of OSPD (nonconsent) based on the information that was available prior to the July 2015 trial, and to report back on its findings … . Matter of State of New York v Kenneth II, 2020 NY Slip Op 05980, Third Dept 10-22-20

 

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THE RECORD DOES NOT DEMONSTRATE WHETHER THE DEFENDANT REVIEWED THE VERDICT SHEET WHICH INCLUDED UNAUTHORIZED ANNOTATIONS BY THE JUDGE; MATTER REMITTED FOR A RECONSTRUCTION HEARING (THIRD DEPT).

The Third Department, remitting the matter for a reconstruction hearing, determined the defendant’s consent to the judge’s annotations on the verdict sheet was required. Although the record indicated defense counsel was aware of the annotations and did not object, it was not clear from the record whether the defendant was shown the verdict sheet with the annotations:

“CPL 310.20 (2) allows the trial court, when submitting two or more counts charging offenses from the same article of law, to set forth the dates, names of complainants or specific statutory language, without defining the terms, by which the counts may be distinguished. Absent a defendant’s consent, any other notations on the verdict sheet offend the letter of the law” … . “Although generally the lack of an objection to the annotated verdict sheet by defense counsel cannot be transmuted into consent, it is well settled that consent to the submission of an annotated verdict sheet may be implied where defense counsel fails to object to the verdict sheet after having an opportunity to review it” … . …

… [T]he notations as to counts 3 and 4 were not [authorized] … . Accordingly, defendant’s consent was required. To that end, at the conclusion of the court’s instructions to the jury, including an explanation of the annotations on the verdict sheet, the court explicitly asked the People and defense counsel if they had any additional requests or exceptions to the charge. Defense counsel answered in the negative. … [W]e cannot determine from the record whether defendant had an opportunity to review the verdict sheet because the charge conference was held off the record in County Court’s chambers. People v Chappell, 2020 NY Slip Op 05978, Third Dept 10-22-20

 

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DEFENDANT PLED GUILTY TO POSSESSION OF A GRAVITY KNIFE WHICH WAS DE-CRIMINALIZED SHORTLY THEREAFTER; CONVICTION REVERSED IN THE INTEREST OF JUSTICE WITH THE PEOPLE’S CONSENT (SECOND DEPT).

The Second Department, in the interest of justice and as a matter of discretion, with the People’s consent, reversed defendant’s conviction of possession of a gravity knife, which was de-criminalized shortly after the conviction:

On November 29, 2018, during his plea allocution to attempted criminal possession of a weapon in the third degree (see Penal Law §§ 110.00, 265.02[1]), the defendant admitted that on or about January 9, 2018, he attempted to possess a gravity knife. On January 31, 2019, pursuant to his negotiated plea agreement, the defendant was sentenced to an indeterminate term of imprisonment of 1½ to 3 years.

The defendant contends that the judgment of conviction should be reversed because, inter alia, shortly after his conviction, Penal Law § 265.01(1) was amended to decriminalize the simple possession of a gravity knife. The People, in the exercise of their broad prosecutorial discretion, agree that the judgment should be vacated and the indictment dismissed. Even though the statute decriminalizing the simple possession of a gravity knife did not take effect until May 30, 2019 (see L 2019, ch 34, § 1), under the circumstances of this case, we vacate the judgment and dismiss the indictment, as a matter of discretion in the exercise of our interest of justice jurisdiction … . People v Merrill, 2020 NY Slip Op 05936, Second Dept 10-21-20

 

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DEFENDANT’S WAIVER OF APPEAL WAS INVALID; DEFENDANT’S ONE-YEAR SENTENCE, WHICH HAD ALREADY BEEN SERVED, WAS REDUCED BY ONE DAY IN PART TO ADDRESS THE IMMIGRATION CONSEQUENCES OF A ONE-YEAR SENTENCE (SECOND DEPT).

The Second Department, finding the waiver of appeal invalid, reduced defendant’s sentence by one day based in part on the immigration consequences of a one-year sentences:

The defendant’s purported waiver of his right to appeal was invalid because the Supreme Court’s colloquy mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal, and failed to inform the defendant that appellate review remained available for certain issues … . Further, the written waiver form signed by the defendant was insufficient to overcome the deficiencies in the court’s explanation of the waiver of the right to appeal, since it did not contain language clarifying that appellate review remained available for certain issues … . Thus, the purported waiver does not preclude this Court from reviewing the issue of whether the defendant’s sentence was excessive … .

Although the defendant has served his sentence, the question of whether the sentence imposed should be reduced is not academic, since the sentence may have potential immigration consequences … . People v Joseph, 2020 NY Slip Op 05928, Second Dept 10-21-20

 

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APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE A MODE OF PROCEEDINGS ERROR CONCERNING A JURY NOTE ON APPEAL; WRIT OF CORAM NOBIS GRANTED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, granting the writ of coram nobis and ordering a new trial, determined defendant’s appellate counsel was ineffective in failing to raise a mode of proceedings error on appeal. The was no evidence on the record that the trial judge notified counsel of a substantive note from the jury:

… [O]n the afternoon of the first day of jury deliberations, the Supreme Court received a jury note stating “11 of the 12 jurors find the defendant guilty on all counts. One juror after lengthy discussion still has a reasonable doubt on 9 counts. Juror feels we cannot change her/his mind no matter what we say or do. We need direction.” The record does not indicate that the court read the contents of the note to the parties, discussed its contents with counsel, or allowed trial counsel an opportunity to propose a response for the jury. * * *

The failure to provide counsel with meaningful notice of a substantive jury note requires reversal, regardless of whether the Supreme Court provided the jurors with a meaningful response to their note … . In short, in the absence of record evidence that the court complied with its core responsibilities under CPL § 310.30, a mode of proceedings error occurred requiring reversal … . People v Grant, 2020 NY Slip Op 05922, Second Dept 10-21-20

 

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THE MANSLAUGHTER AND CRIMINALLY NEGLIGENT HOMICIDE CONVICTIONS STEMMING FROM A FATAL TRAFFIC ACCIDENT WERE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (SECOND DEPT).

The Second Department, reversing the manslaughter and criminally negligence homicide convictions stemming from a traffic accident, determined the evidence was legally insufficient. There was evidence provided by another driver (Duke) that defendant was driving above the speed limit before the collision (which Duke did not witness), but nothing else. Two passengers and an unborn child died in the collision:

… [T]he evidence was legally insufficient to establish “the kind of seriously condemnatory behavior” in addition to speeding that is necessary to “transform ‘speeding’ into ‘dangerous speeding'” … . While Duke testified that the defendant’s vehicle “swerv[ed] around” her into the left lane to pass, she did not testify that the defendant’s vehicle came close to hitting her vehicle, that she had to engage in any evasive measures to avoid an accident, that there were any vehicles in the left lane when the defendant moved into it, or that the defendant swerved back in front of her after passing her … . Rather, Duke testified that after the defendant moved into the left lane, she waited for him to pass before getting into the left lane behind him. Moreover, Duke testified that the defendant was driving at a slower rate while moving into the left lane to pass her before speeding up after he moved into the left lane, and that the defendant obeyed a red traffic signal, pausing and not again accelerating until the traffic signal “turned green.” Duke also stated that there were “no more lights” between that traffic signal and the location of the accident, and thus, there is no indication that the defendant disregarded any red traffic signals. Further, the People presented no evidence that the defendant proceeded in disregard of a warning to slow down or of a dangerous driving condition … . Evidence was presented that Kent Avenue, which is partly situated in an industrial area, is not a busy road and generally has “very few cars” on it around the time when the accident occurred. Thus, the People failed to establish that the defendant engaged in “some additional affirmative act aside from driving faster than the posted speed limit,” as required to support a finding of recklessness or criminal negligence … . People v Acevedo, 2020 NY Slip Op 05909, Second Dept 10-21-20

 

AFTER DEFENSE COUNSEL REPEATEDLY USED THE N-WORD (QUOTING A CO-DEFENDANT) IN CROSS-EXAMINING THE VICTIM A JUROR STOOD UP AND SAID SHE FOUND THE WORD VERY OFFENSIVE AND WOULD LEAVE IF COUNSEL USED THE WORD AGAIN; THE TRIAL COURT DID NOT CONDUCT A BUFORD HEARING TO DETERMINE WHETHER THE JUROR SHOULD BE DISQUALIFIED; CONVICTION AFFIRMED OVER A THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DeFiore, over a three-judge dissent, determined there was no need for the trial court to conduct a Buford  hearing to determine whether a juror should be disqualified. Defense counsel, quoting the words used by a co-defendant, repeatedly said the “n-word.” A juror stood up and said she would leave if counsel use the word again because she found very offensive. The trial court denied a motion for a mistrial and gave a curative instruction. On appeal the defendant argued the trial court should have conducted a Buford hearing and determined that the juror was grossly unqualified:

This appeal by defendant presents the issue … whether the trial court abused its discretion as a matter of law in giving the jury a curative instruction and forgoing a Buford inquiry (People v Buford, 69 NY2d 290 [1987]) of a sworn juror after her mid-trial exclamation that she was “very offen[ded]” by the repetitive use of a racial slur by Bailey’s counsel while cross-examining the victim. Viewed in context, the record supports the trial court’s findings that the juror’s reaction was triggered by counsel’s fifth and gratuitous use of the epithet, and provided no basis to indicate she was grossly unqualified. Since the entire incident unfolded in open court, a Buford inquiry of the juror was unnecessary, as the court was able to adequately assess that her outburst was not a transformative one and her sworn oath to be impartial remained intact. The court’s remedy of admonishing the juror and counsel and issuing a carefully crafted curative instruction—which included a mechanism for any juror to advise the court if they could not be fair and impartial due to anything that occurred at trial—was not an abuse of its discretion. * * *

… [N]ot every allegation of juror misconduct warrants an intrusive Buford inquiry, and we have approved alternate procedures and ameliorative instructions when juror bias or partiality is not in doubt … . In determining whether there are new facts to impugn the jury’s original oath of impartiality or a need to investigate alleged juror misconduct, “‘the court must consider the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source'” … . Thus, while a court “must investigate and, if necessary, correct a problem, it must also avoid tainting a jury unnecessarily. . . . In this endeavor, sometimes less is more” … . People v Batticks, 2020 NY Slip Op 05840, Ct App 10-20-20

 

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