You are here: / Criminal Law
,

THE PETITIONS FOR WRITS OF HABEAS CORPUS SEEKING RELEASE FROM RIKERS ISLAND BASED UPON THE RISK OF CONTRACTING COVID-19 PROPERLY DENIED (FIRST DEPT).

The First Department determined the petitions for writs of habeas corpus brought by inmates at Rikers Island, arguing the risk of contracting COVID-19 at the jail required release, were properly denied. State and Federal constitutional arguments were raised. The analysis, which is too complex to fairly summarize here, came down to weighing the danger to the inmates against the danger to the public entailed by release:

Far from acting recklessly, respondents [city and state] have demonstrated great care to ensure the safety of everyone who enters the facility. By any objective measure, they have been anything but indifferent to the risk that COVID-19 poses to the jail population.

Even petitioners admit that respondents have taken substantial measures to reduce the spread of the virus on Rikers Island, and have had success in doing so. Moreover, petitioners have not cited to any controlling authority to establish that anything short of release constitutes deliberate indifference. …

That the State has agreed to release a significant number of detainees to help control the spread of the virus actually demonstrates that it has given a great deal of consideration to who should and should not be released, and its decision not to release petitioners based on their criminal history backgrounds is thus persuasive. Coupled with what the State and City have done to protect detainees, discussed above, we conclude that the weighing of interests falls in respondents’ favor. Matter of People ex rel. Stoughton v Brann, 2020 NY Slip Op 04236, First Dept 7-23-20

 

, , ,

THE CITY NEED NOT PROVE THE POLICE CORROBORATED INFORMATION PROVIDED BY AN INFORMANT IN A CIVIL ACTION FOR FALSE ARREST STEMMING FROM THE EXECUTION OF A SEARCH WARRANT BASED UPON ‘BAD CI INFORMATION’ (SECOND DEPT).

The Second Department determined that, in the context of a civil trial alleging false imprisonment stemming from police officers entering plaintiffs’ apartment to execute a search warrant, the city does not have to prove the police properly corroborated the informant’s allegations on which the warrant was based. Apparently, the informant provided “bad … information:”

To prevail on a cause of action alleging false arrest or false imprisonment, a plaintiff must prove (1) intentional confinement by the defendant, (2) of which the plaintiff was aware, (3) to which the plaintiff did not consent, and (4) which was not otherwise privileged … . “The existence of probable cause constitutes a complete defense to a cause of action alleging false arrest and false imprisonment” … . Unlike in a criminal prosecution, where the hearsay statements of an informant can only constitute probable cause if it is demonstrated that the informant is reliable and had a sufficient basis for his or her knowledge, in a trial in a civil action alleging false arrest or false imprisonment, it is not “appropriate for a jury to determine, as a factual matter, whether the police obtained sufficient corroboration of the information provided by an informant” … . In a civil action resulting from the detention of the occupants of premises searched pursuant to a search warrant, “there is a presumption of probable cause for the detention which the plaintiff must rebut with evidence that the warrant was procured based upon the false or unsubstantiated statements of a police officer” … . Ali v City of New York, 2020 NY Slip Op 04138, Second Dept 7-23-20

 

,

DECISION ON APPEAL RESERVED AND MATTER REMITTED FOR A DETERMINATION WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS (FOURTH DEPT).

The Fourth Department, reserving decision on the appeal and remitting the matter, determined County Court should have ruled on whether defendant should be afforded youthful offender status:

Pursuant to CPL 720.10 (2) (a) (ii) and (3), because defendant was convicted of an armed felony offense (see CPL 1.20 [41]), he is ineligible for a youthful offender adjudication unless the court determines that one of two mitigating factors is present. “If the court, in its discretion, determines that neither of the CPL 720.10 (3) factors is present and states the reasons for that determination on the record, then no further determination is required” (… see People v Middlebrooks, 25 NY3d 516, 527 [2015]). “If, on the other hand, the court determines that one or more of those factors are present, and therefore defendant is an eligible youth, the court then must determine whether he is a youthful offender” … . As the People correctly concede, the court failed to follow the procedure set forth in Middlebrooks. People v Williams, 2020 NY Slip Op 04092, Fourth Dept 7-17-20

 

,

ALTHOUGH SECONDARY EVIDENCE (HEARSAY TESTIMONY) AND EXTRINSIC DOCUMENTARY EVIDENCE ARE NOT ADMISSIBLE FOR COLLATERAL MATTERS LIKE IMPEACHING CREDIBILITY, SUCH EVIDENCE IS ADMISSIBLE WHEN IT IS RELEVANT TO A CORE ISSUE; HERE THE CONTENTS OF A NOTE PRESENTED TO A BANK EMPLOYEE WAS RELEVANT TO THE ‘THREATENED USE OF FORCE ‘ ELEMENT OF ROBBERY (FOURTH DEPT).

The Fourth Department, reversing defendant’s robbery conviction and ordering a new trial on that count, determined the defendant should have been allowed to present a witness to demonstrate the note he presented to the bank employee did not threaten the use of force (an element of the robbery charge). The Fourth Department noted that secondary evidence (hearsay testimony) and extrinsic documentary evidence, which is prohibited for collateral issues, may be admissible when the evidence is relevant to a core issue:

“It is well established that the party who is cross-examining a witness cannot introduce extrinsic documentary evidence or call other witnesses to contradict a witness’ answers concerning collateral matters solely for the purpose of impeaching that witness’ credibility” … . That rule, however, “has no application where the issue to which the evidence relates is material in the sense that it is relevant to the very issues that the jury must decide” … . “Where the truth of the matter asserted in the proffered inconsistent statement is relevant to a core factual issue of a case, its relevancy is not restricted to the issue of credibility and its probative value is not dependent on the inconsistent statement. Under such circumstances, the right to present a defense may encompass[ ] the right to place before the [trier of fact] secondary forms of evidence, such as hearsay’ ” … . Here, defendant sought to call a witness whose testimony related to the content of the note defendant presented to the bank employee in the first incident. Defendant specifically sought to establish that the note he presented contained language that, according to defendant, did not threaten the immediate use of force, contrary to the testimony of the bank employee who received it. Although a threat of immediate use of force may be implicit and does not require the use of any specific words … , the use of threatening language is nevertheless a factor for the jury to consider when determining whether the defendant presented such a threat … . Inasmuch as the content of the note was relevant to whether defendant, either explicitly or implicitly, threatened the use of force, we conclude that the proposed testimony pertained to a noncollateral issue and that the court should have allowed the proposed witness to testify … . People v Snow, 2020 NY Slip Op 04024, Fourth Dept 7-17-20

 

,

THE INITIAL PROSECUTOR IN DEFENDANT’S CASE BECAME THE TRIAL JUDGE’S LAW CLERK; DEFENDANT WAS NOT INFORMED AND WAIVED HIS RIGHT TO A JURY TRIAL; THE WAIVER WAS NOT ‘KNOWINGLY’ AND ‘INTELLIGENTLY’ MADE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction after a bench trial should have been granted. The initial prosecutor in defendant’s case became the trial judge’s law clerk. Defendant was never informed and waived his right to a jury trial. Defendant argued he would not have waived a jury trial had he known the former prosecutor was the trial judge’s law clerk:

The evidence at the hearing established that the prosecutor who appeared for over six months on the People’s behalf during the preliminary proceedings in this case was subsequently appointed to serve as the trial court’s confidential law clerk. When the law clerk brought that conflict to the trial court’s attention, the trial court appropriately screened the law clerk off from any participation in this case. When defendant sought to waive his right to a jury trial and to be tried by the court alone, however, the trial court—which had recognized the conflict and had already taken steps to mitigate it—failed to inform defendant that its law clerk had previously prosecuted defendant in this case. Moreover, although defense counsel was aware of the law clerk’s prior role as prosecutor, it is undisputed that defense counsel failed to inform defendant of that fact. Defense counsel subsequently admitted that, had he recalled the fact that the prosecutor had become the trial court’s law clerk, he would have advised defendant to retain his right to a jury trial. Additionally, defendant testified at the posttrial hearing that he would not have waived his right to a jury trial had he been aware of the fact that his former prosecutor was now serving as the trial court’s law clerk. Contrary to the motion court’s determination, defendant’s testimony in that regard was not incredible. Indeed, defendant identified rational, case-specific reasons why he distrusted the fairness of the law clerk.

Under the unique circumstances of this case, we conclude that defendant’s waiver of his right to a jury trial, which was made when he was the only participant in the waiver proceeding who was ignorant of the fact that his former prosecutor had become the trial judge’s legal advisor, was not tendered “knowingly and understandingly” and was not “based on an intelligent, informed judgment” … . People v Mineccia, 2020 NY Slip Op 04028, Fourth Dept 7-17-20

 

DEFENDANT’S SENTENCE FOR MANSLAUGHTER REDUCED BASED UPON DEFENDANT’S BACKGROUND, REMORSE AND LACK OF A CRIMINAL HISTORY (FOURTH DEPT).

The Fourth Department reduced defendant’s sentence for manslaughter based upon his background, remorse, and lack of a criminal history:

… [T]he 24-year determinate sentence is unduly harsh and severe considering, inter alia, defendant’s background, genuine show of remorse, and lack of prior criminal history. Thus, we modify the judgment as a matter of discretion in the interest of justice by reducing the sentence to a determinate term of imprisonment of 19 years and five years of postrelease supervision, which falls within the sentence range negotiated by the parties … . People v Jeffords, 2020 NY Slip Op 04037, Fourth Dept 7-17-20

 

THE PROSPECTIVE JUROR AND A PROSECUTION WITNESS WERE FRIENDS; DEFENDANT’S FOR CAUSE CHALLENGE TO THE JUROR SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined that defendant’s for cause challenge to a juror should have been granted. The juror and a prosecution witness were friends:

… [T]he prospective juror gave “some indication of bias” … by stating that her friendship with a prosecution witness “might” “affect [her] ability to be fair and impartial in this case” and that serving as a juror “might be awkward” in light of that friendship … .

Contrary to the court’s determination, the prospective juror did not give an unequivocal assurance of impartiality by merely stating, during follow-up questioning, that she would not feel compelled to “answer” to the witness for her verdict. The fact that a prospective juror would not feel compelled to answer to another person for their verdict does not necessarily mean that such prospective juror “can be fair” … . Indeed, a person could be unable to judge a case impartially while simultaneously being confident that he or she would not have to answer for the verdict to any other person. Thus, the prospective juror’s assurances that she would not feel compelled to answer to the witness for her verdict does not constitute the unequivocal assurance of impartiality required by law. People v Cobb, 2020 NY Slip Op 04055, Fourth Dept 7-17-20

 

,

ALTHOUGH THE ‘LEGALLY INSUFFICIENT EVIDENCE’ ISSUE WAS NOT PRESERVED BY THE MOTION FOR A TRIAL ORDER OF DISMISSAL, THE APPEAL WAS HEARD IN THE INTEREST OF JUSTICE; THE ELEMENT OF RECKLESSNESS IN THIS ASSAULT CASE WAS LEGALLY INSUFFICIENT; INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s assault convictions and dismissing the indictment, determined the evidence of recklessness was legally insufficient. Although the issue was not preserved by the motion for a trial order of dismissal, the appeal was heard in the interest of justice. The facts were not described:

Defendant failed to preserve that contention for our review, however, “because [her] motion for a trial order of dismissal was not specifically directed at the ground[] advanced on appeal’ ” … . We nevertheless exercise our power to review her challenge as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

We agree with defendant that the conviction of both counts of assault in the third degree is not supported by legally sufficient evidence … . The evidence submitted by the People is insufficient to establish that defendant acted recklessly, “i.e., that [s]he perceived a substantial and unjustifiable risk of [injury] and that [her] conscious disregard of that risk constituted a gross deviation from the standard of conduct that a reasonable person would observe in that situation” … . People v Romeiser, 2020 NY Slip Op 04054, Fourth Dept 7-17-20

 

,

THE BURGLARY PLEA COLLOQUY DID NOT INDICATE DEFENDANT INTENDED TO COMMIT A CRIME OTHER THAN TRESPASS IN THE PREMISES; THEREFORE THE COLLOQUY NEGATED AN ESSENTIAL ELEMENT OF THE CRIME; PRESERVATION FOR APPEAL IS NOT REQUIRED FOR THIS GENRE OF ERROR (FOURTH DEPT).

The Fourth Department vacated defendant’s plea to burglary because the colloquy negated an essential element of the offense. The court noted that this type of error does not require preservation for appeal. The intent to commit burglary includes the intent to commit a crime in the premises other than trespass:

Although we agree with the People that defendant failed to preserve his contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction on that ground … , this case nevertheless falls within the rare exception to the preservation requirement … . Where a defendant’s recitation of the facts “negates an essential element of the crime pleaded to, the court may not accept the plea without making further inquiry to ensure that [the] defendant understands the nature of the charge and that the plea is intelligently entered” … .

Here, defendant’s factual recitation negated at least one element of the crime. Specifically, defendant negated the “intent to commit a crime therein” element of burglary (Penal Law § 140.25) because his factual recitation contradicted any allegation that “he intended to commit a crime in the apartment other than his trespass” ( … see § 140.25). Criminal trespass in the second degree “cannot itself be used as the sole predicate crime in the intent to commit a crime therein’ element of burglary” … . The court thus had a duty to conduct an inquiry to ensure that defendant understood the nature of the crime … . Instead, the court stated, “I just want to make sure . . . [that] you still accept [the plea deal], because you have an absolute right to go to trial . . . I think you understand . . . [t]hat your defense of you going to the bathroom may be a difficult sell to a jury.” Because that minimal inquiry by the court did not clarify the nature of the crime in order to ensure that the plea was intelligently entered, the court erred in accepting the guilty plea. People v Hernandez, 2020 NY Slip Op 04049, Fourth Dept 7-17-20

 

, ,

THE EX PARTE ORDER ALLOWING THE PROSECUTOR TO SEIZE AND READ DEFENDANT’S NON-LEGAL MAIL DID NOT REQUIRE DISQUALIFICATION OF THE PROSECUTOR OR A MISTRIAL; THE PROSECUTOR’S DEMONSTRATION OF THE OPERATION OF THE MURDER WEAPON (A KNIFE) DID NOT WARRANT A MISTRIAL; AND THE FAILURE TO NOTIFY THE COURT AND THE ATTORNEYS OF THE JURY NOTE REQUESTING THE EXAMINATION OF THE KNIFE WAS NOT AN O’RAMA VIOLATION AND DID NOT WARRANT A MISTRIAL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, affirmed defendant’s murder conviction after addressing several unusual issues in depth: (1) The prosecutor obtained a ex parte order allowing the opening and reading of defendant’s non-legal mail to determine whether defendant was threatening an eyewitness. After reading two batches of mail, the prosecutor determined no threats were being made, informed defense counsel of the order and turned the mail over to defense counsel. The First Department determined there were no related grounds for disqualifying the prosecutor or for granting a mistrial. (2) When the defendant was on the stand he denied knowing the knife (murder weapon) could be flipped open with one hand. During her questioning the prosecutor demonstrated that the knife could be flipped open. The Second Department determined the “prosecutor-as-an-unsworn witness” argument did not warrant a mistrial, in part because of the curative instructions to the jury. (3) The knife was brought into the jury room after a request from the jury about which the court and the attorneys were not made aware. The judge and the attorneys had agreed that the jury’s examination of the knife would be allowed and the examination was done according to the agreed procedure. This was not an O’Rama violation because it involved only the examination of a physical object, not an instruction or the substance of any trial evidence. Therefore a mistrial on this ground was not warranted. People v Jenkins, 2020 NY Slip Op 04014, First Dept 7-16-20

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy