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DEFENDANT’S MOTION TO VACATE HIS CONVICTION OF A 1996 MURDER BASED UPON NEWLY DISCOVERED EVIDENCE OF THIRD-PARTY CULPABILITY PROPERLY GRANTED (SECOND DEPT).

The Second Department determined County Court properly granted defendant’s motion to vacate his conviction stemming from a 1996 murder, despite defendant’s confession, based upon evidence of third-party culpability, i.e., statements allegedly made by Gombert to Santoro about Gombert’s involvement in the crime:

… [W]e find that the newly discovered evidence “is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 440.10[1][g]). A reasonable jury could credit Santoro’s testimony regarding the statements made by Gombert, including that he could not be charged with the rape and murder of the victim because “[t]hey already got the other suckers,” and find that such statements raise a reasonable doubt as to the defendant’s involvement in the subject crimes … . Moreover, had Santoro’s testimony been available to the defendant at trial, defense counsel could have advanced the theory that Gombert was the actual perpetrator of the crimes, rather than merely denying the defendant’s involvement … . In fact, the codefendant was acquitted following his third trial, at which Santoro’s testimony was admitted for the first time.

Further, although the evidence presented at the defendant’s trial included the defendant’s statement confessing to the crimes, the record reveals the existence of circumstances casting doubt on that statement. The portion of the defendant’s statement regarding how he tied the victim’s hands together was inconsistent with the testimony of a medical examiner for the People as to the manner in which the victim was “hogtied” with rope. In addition, the defendant presented testimony at trial from a polygraph examiner, who opined that the defendant was telling the truth during a polygraph examination when he initially denied raping and killing the victim. People v Krivak, 2020 NY Slip Op 05226, Second Dept 9-30-20

 

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SUPREME COURT SHOULD NOT HAVE REQUIRED DEFENSE COUNSEL TO SEEK COURT APPROVAL BEFORE ALLOWING INVESTIGATORS OR OTHER EMPLOYEES ACCESS TO RECORDINGS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court should not have required that defense counsel seek court approval before allowing investigators or other employees access to recordings:

Pursuant to CPL 245.70(6), a party who has unsuccessfully sought, or opposed the granting of, a protective order relating to the name, address, contact information, or statements of a person may obtain expedited review by an individual justice of the intermediate appellate court to which an appeal from a judgment of conviction would be taken. Where, as here, “the issue involves balancing the defendant’s interest in obtaining information for defense purposes against concerns for witness safety and protection, the question is appropriately framed as whether the determination made by the trial court was a provident exercise of discretion” … .

Applying the factors set forth in CPL 245.70(4), including concerns for witness safety and protection, I conclude that the Supreme Court improvidently exercised its discretion in requiring defense counsel to seek approval of the court before exhibiting the subject recordings to investigators or others employed by counsel. Under the particular circumstances of this case, the court should have permitted defense counsel to disclose the recordings to those employed by counsel or appointed to assist in the defense, without prior approval from the Supreme Court … . People v Clarke, 2020 NY Slip Op 05221, Second Dept 9-30-20

 

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INSUFFICIENT EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED WEAPONS FOUND IN A LOCKED ROOM BELONGING TO DEFENDANT’S DECEASED BROTHER; WEAPONS POSSESSION CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing the possession-of-a-weapon convictions, determined the evidence of constructive possession was insufficient and the convictions were therefore against the weight of the evidence:

The evidence demonstrated that the defendant resided in the third bedroom of the searched premises, and that the defendant’s brother had resided in the first bedroom up until his death in 2014 or 2015. There was also testimony that, after the defendant’s brother passed away, the door to the first bedroom was locked and remained locked. There was no evidence that the defendant frequented the first bedroom, had a key to that room or kept his belongings in that room. Although the police witnesses testified that they could not recall any damage to the door to the first bedroom, the defense introduced a photograph depicting damage to the door and frame after the search.

Moreover, although the police officers recovered a magazine containing seven 9 millimeter cartridges from the defendant’s bedroom, the evidence demonstrated that it was not the correct magazine for the pistol recovered from the first bedroom; it had to be manipulated in order to function properly with the pistol. Apart from the magazine, there was no other evidence connecting the defendant to the first bedroom or the weapons found therein. People v Branch, 2020 NY Slip Op 05220,  Second Dept 9-30-20

 

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SUPREME COURT SHOULD HAVE ENSURED DEFENDANT WAS KNOWINGLY AND INTELLIGENTLY WAIVING THE INTOXICATION DEFENSE BEFORE ACCEPTING DEFENDANT’S GUILTY PLEA; IN THE PLEA COLLOQUY DEFENDANT TOLD THE COURT HE WAS DRUNK AND DIDN’T KNOW WHAT HE WAS DOING (FIRST DEPT).

The First Department, vacating defendant’s guilty plea (attempted burglary), determined Supreme Court should have ensured that the defendant understood he was waiving the intoxication defense by pleading guilty. During the plea colloquy defendant indicated he was drunk and didn’t know what he was doing when he entered a woman’s hotel room:

Once defendant raised the possible defense of intoxication during the allocution, the court was obligated to determine if he understood the defense, whether he in fact, had a viable defense and whether he wanted to waive the same … .

Defendant’s statement that he entered the victim’s hotel room “looking for money from the lady” did not effectively recant his earlier statement as to intoxication and did not relieve the court of its duty to engage in an additional inquiry into defendant’s understanding of the intoxication defense or the facts of the offense … . People v Muniz-Cayetano, 2020 NY Slip Op 05156, First Dept 9-29-20

 

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BECAUSE THE TRIAL JUDGE OMITTED A PORTION OF THE BURGLARY JURY INSTRUCTIONS AND THE PEOPLE DID NOT OBJECT, THE PEOPLE ARE HELD TO THE PROOF REQUIRED BY THE INCOMPLETE INSTRUCTIONS; THE BURGLARY CONVICTION WAS THEREFORE AGAINST THE WEIGHT OF THE EVIDENCE; DEFENSE COUNSEL’S FAILURE TO MAKE A SPEEDY TRIAL MOTION DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE BECAUSE THE ISSUE WAS NOT CLEAR-CUT AND DISPOSITIVE (SECOND DEPT).

The Second Department, reversing the burglary conviction as against the weight of the evidence, determined the People were held to the proof required by the the jury instructions to which the People did not object. The portion of the instructions which explained that entry into a private area of a building after entering the building through a public area constitutes unlawful entry was left out. Because the defendant entered the building through a public entrance, the People did not prove unlawful entry as charged to the jury. The Second Department also held that defense counsel’s failure to make a speedy trial motion did not constitute ineffective assistance because it was not clear the motion would succeed:

While the failure to make a meritorious speedy trial motion can constitute ineffective assistance of counsel … , the speedy trial violation must have been “clear-cut and dispositive” … . In other words, the motion must not only be meritorious … , it generally must not require resolution of novel issues, or resolution of whether debatable exclusions of time are applicable … . Here, the issue cannot be fairly characterized as “clear-cut and dispositive” so as to render defense counsel ineffective for failing to make such a motion … . * * *

The testimony at trial was unequivocal that the defendant and two cohorts entered the subject premises, a self-storage facility, during business hours, using the entrance designated for use by the public. The defendant’s entry into the premises was therefore lawful … . While the defendant’s subsequent act of entering a nonpublic area of the premises could constitute an unlawful entry (see Penal Law § 140.00[5] … ), in light of the Supreme Court’s charge omitting that portion of the instruction elaborating upon license and privilege as it applies to nonpublic areas within public places, and asking the jury whether the defendant unlawfully entered the premises generally, it was factually insufficient to prove that the defendant’s entry was unlawful. People v McKinnon, 2020 NY Slip Op 05056, Second Dept 9-23-30

 

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DEFENDANT WAS NOT ACTING IN BAD FAITH IN SEEKING THE TESTIMONY OF CERTAIN WITNESSES; THE TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED; CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s scheme to defraud conviction, determined defendant should not have been precluded from calling witnesses in good faith:

“Pursuant to Penal Law § 155.15(1) [i]n any prosecution for larceny committed by trespassory taking or embezzlement, it is an affirmative defense that the property was appropriated under a claim of right made in good faith'” … . In this case, the defendant claimed that the money from the grant from OCFS [Office of Children & Family Service] was appropriated mistakenly but in good faith as reimbursement for expenses he personally paid for events occurring in 2008 and 2009, after the grant was awarded but in a time period not covered by the grant. The defendant intended to call as witnesses, a videographer who would attest to the fact that he “got paid” for services at a 2009 event, and others who would testify as to other expenses at that event. …

The record does not establish that the defendant was acting in bad faith in seeking to present the testimony of these witnesses at the trial. The proposed testimony did not deal with a collateral issue … , but, rather, went to the heart of the defendant’s claim of right defense. Thus, it was error for the Supreme Court to have prospectively precluded the defendant’s witnesses from testifying, and, under the facts of this case, that error cannot be deemed harmless. People v Wills, 2020 NY Slip Op 04976, Second Dept 9-16-20

 

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THREE OF THE FOUR VEHICULAR HOMICIDE COUNTS WERE MULTIPLICITOUS EVEN THOUGH THEY INVOLVED DIFFERENT SUBDIVISIONS OF VEHICLE AND TRAFFIC LAW 1192; THE DWI AND DWAI COUNTS WERE INCLUSORY CONCURRENT COUNTS OF VEHICULAR HOMICIDE SECOND DEGREE (SECOND DEPT).

The Second Department determined three counts of vehicular homicide were multiplicitous and the DWI and DWAI counts were inclusory concurrent counts of vehicular homicide second degree:

While the People contend that each count of vehicular manslaughter required them to prove additional facts that the others did not, in fact, the People were only required to prove that the defendant violated one subdivision of Vehicle and Traffic Law § 1192 in order to prove his guilt under Penal Law § 125.12(1). The People’s election to proceed on a theory that the defendant had violated more than one such subdivision by presenting evidence of his multiple, distinct manners of intoxication was not necessary to establish his guilt … . Thus, a conviction on one count of vehicular manslaughter in the second degree would have been inconsistent with an acquittal on any other count charging the same offense predicated upon a different manner of intoxication … . Accordingly, we agree with the defendant that counts 5, 6, and 7 of the indictment were multiplicitous of count 4 … . Although the dismissal of the multiplicitous counts will not affect the duration of the defendant’s sentence of imprisonment, it is nevertheless appropriate to dismiss these counts in consideration of the stigma attached to the redundant convictions  … .

As the People concede, the defendant’s convictions of driving while intoxicated in violation of subdivisions (2) and (3) of Vehicle and Traffic Law § 1192 and driving while ability impaired under subdivisions (4) and (4-a) of Vehicle and Traffic Law § 1192 are inclusory concurrent counts of vehicular manslaughter in the second degree … . Accordingly, those convictions must also be reversed … . People v O’Brien 2020 NY Slip Op 04971, Second Dept 9-16-20

 

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ALTHOUGH KERRY K WAS ORDERED RELEASED UNDER STRICT AND INTENSIVE SUPERVISION AND TREATMENT PURSUANT TO THE FIRST MENTAL HYGIENE LAW CIVIL COMMITMENT TRIAL, AFTER KERRY K’S SUCCESSFUL APPEAL HE WAS PROPERLY ORDERED RE-CONFINED PENDING THE SECOND TRIAL (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Chambers, determined Kerry K was properly ordered re-confined pending a retrial in this Mental Hygiene Law civil commitment proceeding. In the first trial Kerry K was not found to be a dangerous sex offender and was ordered released under strict and intensive supervision and treatment (SIST). Kerry K appealed the finding that he suffered from a mental abnormality. The Second Department reversed and ordered and new trial. The issue here was whether Kerry K could be re-confined while awaiting re-trial:

On appeal, Kerry K. contends that since the Supreme Court has already found, after a dispositional hearing held in 2015, that he was not a “dangerous sex offender requiring confinement” (Mental Hygiene Law §§ 10.03[e]; 10.07[f]), there is no statutory requirement—and no logical reason—for him to be re-confined pending his retrial based on the stale 2013 probable cause determination, and that he is, in effect, being punished for having successfully prosecuted his prior appeal. Alternatively, to the extent pretrial confinement is statutorily mandated, Kerry K. contends that the statute, as applied to him, violates his constitutional right to due process of law.

The State counters that Mental Hygiene Law § 10.06(k) requires pretrial detention upon a finding of probable cause, and since this Court’s decision on the prior appeal merely reversed the June 25, 2015 order and underlying finding of mental abnormality and ordered a new trial, without disturbing the Supreme Court’s 2013 probable cause finding, it follows that Kerry K. must be re-confined pending retrial. Moreover, the State contends that Kerry K.’s claim that the pretrial detention provision of the Mental Hygiene Law is unconstitutional as applied to him lacks merit … . We find that the State’s contentions have merit. Matter of State of New York v Kerry K.,2020 NY Slip Op 04844, Second Dept 9-2-20

 

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AN AUTOMATIC OVERRIDE ALLOWING A LEVEL THREE RISK ASSESSMENT WAS PROPERLY APPLIED TO A PSYCHOLOGICAL ABNORMALITY NOT SPECIFICALLY MENTIONED IN THE SORA RISK LEVEL GUIDELINES (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Maltese, determined the automatic override justifying a level three risk level was properly based upon a psychological abnormality not specifically mentioned in the risk assessment guidelines, but included in the Diagnostic and Statistical Manual of Mental Disorders:

In the Guidelines, the Board explained that it “chose to require a clinical assessment of an abnormality so that loose language in a pre-sentence report would not become the basis for an override. Examples of a clinical assessment that would support an override are pedophilia and sexual sadism” (Guidelines at 19 …). The Guidelines do not contain any language limiting the application of the fourth override to these two examples, and there is no requirement that a psychological abnormality must be inherently sex-related in order for the fourth override to apply … . * * *

The People submitted, among other things, a psychologist’s report in which the psychologist concluded, based on a clinical assessment, that the defendant suffered from schizoaffective disorder, that he experienced “periods of agitation and disorganized behavior,” and “presents as hypersexual with low impulse control when decompensated.” The psychologist further concluded that the nature of the defendant’s illness placed him at an elevated risk of violence, which would likely take the form of inappropriate sexual conduct. This evidence established that there has been a clinical assessment that the defendant has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior. People v Odiari, 2020 NY Slip Op 04882, Second Dept 9-2-20

 

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ALTHOUGH HARMLESS, IT WAS ERROR TO ADMIT THE CONTENT OF SOCIAL MEDIA ACCOUNTS WITHOUT AUTHENTICATING THE ACCOUNTS, PHOTOGRAPHS AND STATEMENTS (SECOND DEPT).

The Second Department determined it was (harmless) error to admit in evidence the content of social media accounts which was not authenticated:

We disagree … with the Supreme Court’s determination admitting into evidence certain content from various social media accounts … . The People failed to present sufficient evidence that the subject social media accounts belonged to the defendant, that the photographs on the accounts were accurate and authentic, or that the statements found on one of the accounts were made by the defendant … . People v Upson, 2020 NY Slip Op 04876, Second Dept 9-2-2020

 

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