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ALTHOUGH IT WAS ERROR TO DENY THE DEFENSE REQUEST FOR A RODRIGUEZ HEARING BASED UPON THE PROSECUTOR’S ASSERTION THE COMPLAINANT AND THE DEFENDANT KNEW EACH OTHER, THE TRIAL TESTIMONY DEMONSTRATED THE COMPLAINANT AND DEFENDANT IN FACT KNEW EACH OTHER; THE DISSENT ARGUED THE COURT OF APPEALS REQUIRES THAT THE IDENTIFICATION ISSUE BE RESOLVED BEFORE TRIAL (SECOND DEPT).

The Second Department affirmed defendant’s conviction over a substantive dissent. Arguing against a Wade hearing addressing the suggestiveness of the complainant’s identification of the defendant from single photograph displays, the prosecutor told the judge the complainant and the defendant knew each other and the identification procedures were merely confirmatory. Defendant denied knowing the complainant and requested a Rodriguez hearing. The judge denied the request based on the People’s assertion the identification procedures were confirmatory. The denial of the Rodriguez hearing was deemed to be error, but the majority concluded the hearing was not necessary because the trial testimony demonstrated the complainant knew the defendant. The dissent argued the Court of Appeals, in the Rodriguez case, required resolution of the identification issue before trial:

The Supreme Court erred in relying on the People’s mere assurances of familiarity in denying the defendant’s pretrial request for a Rodriguez hearing  … . Nevertheless, a hearing with regard to the single-photograph identifications made by the complainant soon after the shooting was ultimately unnecessary inasmuch as the complainant’s trial testimony demonstrated that he was sufficiently familiar with the defendant, whom he knew and referred to by the defendant’s street name,”Chulo,” such that the complainant’s identification of the defendant from the photo display was merely confirmatory … . * * * When a crime has been committed by a . . . long-time acquaintance of a witness there is little or no risk that comments by the police, however suggestive, will lead the witness to identify the wrong person'” … . Any suggestiveness of the initial photo identification procedure or the purported taint thereafter was not a concern since ” the protagonists are known to one another'” … . ​People v Carmona, 2020 NY Slip Op 03672, Second Dept 7-1-20

 

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DEFENDANT ALLEGED DEFENSE COUNSEL OVERSTATED THE RISK OF DEPORTATION CAUSING HIM TO REJECT A FAVORABLE PLEA OFFER; DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE (FIRST DEPT).

The First Department, reversing Supreme Court, determined a hearing was necessary on defendant’s motion to vacate his conviction based upon ineffective assistance of counsel. Defendant alleged defense counsel overstated the risk of deportation causing defendant to reject a favorable plea offer:

A defense attorney’s performance is deficient as a matter of law where he or she fails to accurately advise a client of the risk of deportation … . Here, defendant complains that his counsel overstated the immigration consequences of accepting an offer of a guilty plea to petit larceny by advising him that it would “definitely” result in deportation, when in fact it would only have rendered him deportable with the possibility of discretionary relief. Thus, defendant asserts that he rejected a favorable plea offer based on erroneous advice that the conviction would result in mandatory deportation.

We find that a hearing is necessary to determine whether counsel inaccurately advised defendant of the risk of deportation and if so, whether defendant was prejudiced by the attorney’s misadvice … . People v Qinghua Ni, 2020 NY Slip Op 03621, First Dept 6-25-20

 

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THE OPINION CHANGING THE CRITERIA FOR THE DEPRAVED-INDIFFERENCE MENS REA CAME DOWN BEFORE DEFENDANT’S CONVICTION BECAME FINAL; DESPITE THE AFFIRMANCE OF DEFENDANT’S MURDER CONVICTION ON APPEAL, THE DENIAL OF A MOTION TO REARGUE THE APPEAL, THE DENIAL OF THE MOTION FOR LEAVE TO APPEAL TO THE COURT OF APPEALS, AND THE DENIAL OF DEFENDANT’S PETITION FOR A WRIT OF HABEAS CORPUS IN FEDERAL COURT, SUPREME COURT SHOULD HAVE GRANTED DEFENDANT’S MOTION TO VACATE HIS CONVICTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his depraved-indifference murder conviction should have been granted. The Court of Appeals opinion which changed the proof requirements for the depraved indifference mens rea was issued before defendant’s conviction became final. The proof at defendant’s trial demonstrated defendant acted intentionally as opposed acting with “depraved indifference:”

… [T]he defendant moved pursuant to CPL 440.10(1)(h) to vacate so much of the judgment as convicted him of depraved indifference murder, arguing that, in light of People v Payne (3 NY3d 266), which was decided 15 days after this Court affirmed the judgment of conviction on his direct appeal but before his conviction became final (see Policano v Herbert, 7 NY3d at 593), the evidence at trial was legally insufficient to establish that he acted with the requisite mens rea for depraved indifference murder. The Supreme Court denied the motion without a hearing, as both procedurally barred by CPL 440.10(2)(a) and meritless. The court reasoned that the defendant’s legal sufficiency argument based on the change of law set forth in People v Payne had been addressed and rejected by this Court in denying the defendant’s motion for leave to reargue his direct appeal, by the Court of Appeals in denying the defendant’s motion for leave to appeal, and by the federal court in denying the defendant’s petition for a writ of habeas corpus. With respect to the merits of the defendant’s motion, the Supreme Court determined that, viewing the evidence in the light most favorable to the prosecution, the evidence was legally sufficient to support the jury’s verdict. * * *

… [T]he trial evidence was not legally sufficient to support a verdict of guilt of depraved indifference murder (see People v Payne, 3 NY3d at 272; People v Hernandez, 167 AD3d at 940). People v Illis, 2020 NY Slip Op 03535, Second Dept 6-24-20

 

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DEFENSE ‘FALSE CONFESSION’ EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY, CONVICTION REVERSED; RIGHT TO CONFRONT WITNESSES NOT VIOLATED BY STATEMENTS IN THE VIDEO INTERROGATION THAT NONTESTIFYING WITNESSES HAD IMPLICATED THE DEFENDANT (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction, determined the defense “false confession” expert should have been allowed to testify. The defendant was 15 when arrested. He maintained his innocence for two hours and 45 minutes of interrogation before confessing. The Second Department rejected defendant’s argument that he was denied his right to confront witnesses by statements in the video interrogation that nontestifying witnesses had implicated the defendant:

Contrary to the defendant’s contention, his right to confrontation was not violated when the Supreme Court allowed into evidence portions of his videotaped statement to law enforcement officials that contained statements that nontestifying witnesses had implicated him in the crime. The statements were not received for their truth, but to explain the defendant’s reaction to hearing them … . Further, the court properly instructed the jury that it was not to consider any of the statements as evidence against the defendant, and the jury is presumed to have followed this admonition … . * * *

… Supreme Court improvidently exercised its discretion in denying the defendant’s application to permit testimony from his expert witness on the issue of false confessions. We have previously determined that “it cannot be said that psychological studies bearing on the reliability of a confession are, as a general matter, within the ken of the typical juror'” … . Thus, here, the court should not have precluded the testimony of the defendant’s expert witness on this ground.

Further, “[w]ith regard to expert testimony on the phenomenon of false confessions, in order to be admissible, the expert’s proffer must be relevant to the [particular] defendant and interrogation before the court'” … . Here, the report of the defendant’s expert was sufficiently detailed so that it was relevant to this particular defendant, including discussing characteristics that heightened his vulnerability to manipulation, and the interrogation conducted by the detectives, such as the techniques that were utilized and the improper participation of the defendant’s mother during the interview. People v Churaman, 2020 NY Slip Op 03526, Second Dept 6-24-20

 

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PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE IN THIS SORA RISK ASSESSMENT PROCEEDING SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the People’s request for an upward department in this SORA risk assessment proceeding should not have been granted:

The Supreme Court should not have granted the People’s request for an upward departure. “A departure from the presumptive risk level is generally the exception, not the rule. Where the People seek an upward departure, they must identify an aggravating factor that tends to establish a higher likelihood of reoffense or danger to the community not adequately taken into account by the Guidelines, and prove the facts in support of the aggravating factor by clear and convincing evidence” … . If the People do not satisfy these two requirements, “the court does not have the discretion to depart from the presumptive risk level” … .

Here, the People failed to establish that the defendant’s conduct was so brutal, heinous, extreme, or depraved as to amount to an aggravating factor that tends to establish a higher likelihood of reoffense or danger to the community not adequately taken into account by the Guidelines … . People v Murray, 2020 NY Slip Op 03554, Second Dept 6-24-20

 

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SUPREME COURT’S DENIAL OF DEFENDANT’S PETITION TO MODIFY HIS SORA RISK LEVEL CLASSIFICATION WITHOUT HOLDING A HEARING VIOLATED THE CORRECTION LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the failure to hold a hearing on defendant’s petition to modify his risk level classification violated Correction Law 168-o(4):

… [T]he defendant moved pursuant to Correction Law § 168-o(2) for a downward modification of his risk level classification under the Sex Offender Registration Act … . The Supreme Court denied the defendant’s petition without holding a hearing. We reverse.

Since the Supreme Court failed to conduct a hearing on the defendant’s petition, as set forth in Correction Law § 168-o(4), we reverse the order and remit the matter to the Supreme Court, Queens County, for a hearing and, thereafter, a new determination of the defendant’s petition … . People v Banuchi, 2020 NY Slip Op 03553, Second Dept 6-24-20

 

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TRIAL JUDGE ASSUMED THE ROLE OF THE PROSECUTOR AND ELICITED CRUCIAL IDENTIFICATION TESTIMONY, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, ordering a new trial, determined the trial judge assumed the role of the prosecutor in eliciting crucial identification testimony:

“While neither the nature of our adversary system nor the constitutional requirement of a fair trial preclude a trial court from assuming an active role in the truth-seeking process,’ the court’s discretion in this area is not unfettered” … . The principle restraining the court’s discretion is that a trial judge’s “function is to protect the record, not to make it” … . Accordingly, while a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on “the function or appearance of an advocate” … .

Here, the record demonstrates that after the two complainants, in response to questions by the prosecutor, were unable to positively identify the defendant as the perpetrator of the robbery, the Supreme Court improperly assumed the appearance or the function of an advocate by questioning the complainants until it elicited a positive in-court identification of the defendant from each of them … . Under these circumstances, the court’s decision to elicit such testimony was an improper exercise of discretion and deprived the defendant of a fair trial. People v Mitchell, 2020 NY Slip Op 03541, Second Dept 6-24-20

 

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THE MAJORITY HELD THE WARRANTLESS SEARCH OF DEFENDANT’S BACKPACK WAS JUSTIFIED BECAUSE IT OCCURRED CLOSE IN TIME TO DEFENDANT’S ARREST ON THE STREET AND WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES; THE DISSENT ARGUED THERE WAS NO PROOF THE BACKPACK WAS WITHIN THE GRABBABLE AREA AND NO PROOF OF EXIGENT CIRCUMSTANCES (SECOND DEPT).

The Second Department, over a dissent, determined the warrantless search of defendant’s backpack occurred close in time to the arrest and was justified by exigent circumstances. The dissent argued there was no evidence the backpack was within the grabbable area of the defendant and no evidence there were exigent circumstances. Defendant had fallen off his bicycle after he was stopped by the police, the complainant had identified the defendant at the scene, and there were five or six officers around the defendant at the time of the search of the backpack:

According to the testimony adduced at the suppression hearing, after being chased by the police, the defendant fell off his bicycle onto the street. When the complainant arrived one minute later and identified the defendant, the defendant was standing up and had not yet been handcuffed. Immediately after the complainant’s identification, the defendant was placed under arrest. Approximately two minutes after the defendant’s arrest, the police searched the subject backpack which was “on the street, at the location of the arrest.” These facts show that the arrest and search of the backpack were for all practical purposes conducted at the same time and in the same place … . Additionally, at the time of the arrest, the backpack, which was “on the street, at the location of the arrest,” could have been accessed by the defendant and had not yet been reduced to the exclusive control of the police.

Additionally, the circumstances support a reasonable belief that the search of the backpack was necessary to ensure the safety of the arresting officers and the public. The police responded to and arrested the defendant for a burglary, a violent crime. In addition, the defendant was not cooperative with the police. Indeed, the defendant was arrested at the conclusion of a police chase, following his flight from the police on a bicycle. Moreover, the setting of the defendant’s arrest and search of the backpack was a public street. These circumstances gave rise to objective and legitimate reasons for the search of the backpack … . People v Mabry, 2020 NY Slip Op 03540, Second Dept 6-24-20

 

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THE SENTENCE FOR KIDNAPPING MUST RUN CONCURRENTLY WITH THE SENTENCE FOR FELONY MURDER; MOTION TO VACATE THE CONVICTION PROPERLY BROUGHT PURSUANT TO CRIMINAL PROCEDURE LAW 440.20 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) the judge should have analyzed the motion to vacate the conviction under Criminal Procedure Law (CPL) 440.20, as well as 440.10; (2) the sentence for kidnapping should be concurrent with the sentence for felony murder; and (3) the judge failed to address whether the running of the kidnapping sentence consecutively to the other murder convictions violated defendant’s rights to equal protection. Matter remitted for consideration of the equal-protection argument:

The Supreme Court erred in construing the defendant’s motion as one solely pursuant to CPL 440.10. Rather, the motion also sought resentencing on the basis that the kidnapping sentence “was unauthorized, illegally imposed or otherwise invalid as a matter of law” (CPL 440.20[1]) because it should have been made to run concurrently with the felony murder conviction under count three of the indictment, and it should have been made to run concurrently with all of the murder convictions based on his rights to equal protection. That branch of the motion was properly made pursuant to CPL 440.20 (see CPL 440.20[4]). …

… [T]he imposition of consecutive sentences for the kidnapping conviction under count four of the indictment and the felony murder conviction under count three of the indictment was unlawful, since the kidnapping … , of which the defendant was convicted under count four of the indictment, also constituted the underlying felony in his murder conviction under count three of the indictment, thereby constituting a “material element” of that crime (Penal Law § 70.25[2] …). …

The Supreme Court failed to address the only remaining issue raised by the defendant on this appeal—that the running of the sentence on the kidnapping conviction consecutively to the sentences on the other murder convictions violated his rights to equal protection. Accordingly, we remit the matter to the Supreme Court, Queens County, for a determination of that issue. People v Khan, 2020 NY Slip Op 03537, Second Dept 6-24-20

 

THE TRIAL JUDGE DID NOT MAKE AN ADEQUATE INQUIRY ABOUT THE REASONS FOR A SITTING JUROR’S ABSENCE BEFORE SUBSTITUTING AN ALTERNATE JUROR; NEW TRIAL ORDERED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the Appellate Division, determined the trial judge did not make an adequate inquiry about a sitting juror’s absence before substituting an alternate juror for the sitting juror (Juror Number 9). The defendant had moved for a mistrial on that ground:

… [T]he trial court failed to conduct the requisite “reasonably thorough inquiry” before substituting Alternate Number 1 for Juror Number 9 (see CPL 270.35 [2] [a]). When it ordered the substitution, the court had merely stated its “belie[f]” that Juror Number 9 had an “appointment for a family member,” and incorrectly claimed that Juror Number 9 had stated during voir dire that she had a medical appointment for her son in Rochester. Not only did the court provide only limited — and inaccurate — reasons to support a finding of unavailability, there is nothing on the record reflecting that it made any inquiry into Juror Number 9’s whereabouts or likelihood of appearing prior to ordering the substitution of Juror Number 9 with Alternate Number 1. On this record, the court failed to satisfy the requirement that a trial court conduct a “reasonably thorough inquiry” to ensure that its substitution determination is adequately informed … . People v Lang, 2020 NY Slip Op 03487, CtApp 6-23-20

 

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