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CPL 300.40 (3) (b), WHICH REQUIRES DISMISSAL OF INCLUSORY CONCURRENT COUNTS, APPLIES ONLY TO VERDICTS AFTER TRIAL, NOT TO GUILTY PLEAS (THIRD DEPT).

The Third Department determined that Criminal Procedure Law 300.40 (3) (b), which requires dismissal of inclusory concurrent counts, applies only to verdicts after trial and not to cases resolved by guilty plea. Defendant confessed to killing a mother and daughter and he was charged with two counts of first degree murder and two counts of second degree murder. He pled guilty to the two counts of second degree murder. On appeal defendant argued the second degree murder counts should have been dismissed as inclusory concurrent counts of first degree murder:

CPL 300.40 (3) (b) provides, with respect to inclusory concurrent counts, that “[a] verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted” … . Even assuming, without deciding, that counts 3 and 4 of the indictment indeed are inclusory concurrent counts of counts 1 and 2, defendant’s reliance upon both the statute and the cases applying it … is misplaced, as CPL article 300 “‘deals only with trials, and has no application to convictions obtained on a plea of guilty'” … . Having elected to plead guilty to the entire indictment, as was defendant’s right (see CPL 220.10 [2]), he cannot now avail himself of the provisions of CPL 300.40 (3) (b) … . People v Redden, 2020 NY Slip Op 02502, Third Dept 4-30-20

 

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ADMISSION OF A HEARSAY STATEMENT BY A BYSTANDER WHO TOLD A POLICE OFFICER DEFENDANT HAD RUN INTO A HOUSE WAS (HARMLESS) ERROR (FOURTH DEPT).

The Fourth Department determined it was (harmless) error to admit the hearsay statement attributed to a bystander who told a police officer the defendant had run into a house after a car chase:

Defendant contends that County Court erred in allowing inadmissible hearsay testimony when the police officer was allowed to testify at trial that the bystander told him that the fleeing suspect ran into the house. We agree. The statement of the bystander was inadmissible hearsay because it was admitted for the truth of the matters asserted therein … . Indeed, the import of the bystander’s statement was to confirm that the suspect had indeed fled into the house, and thereby confirm that someone inside the house, i.e., defendant, perpetrated the crime. Nevertheless, we conclude that the error was harmless because the evidence of defendant’s guilt is overwhelming and there is no significant probability that defendant would have been acquitted but for the admission of the hearsay testimony … . Defendant was identified by the victim and the other eyewitness as a perpetrator of the robbery, which had occurred in broad daylight, close in time to the show-up identification procedure. Those identifications of defendant were corroborated by testimony of the police officer, who observed the suspect flee from the stolen vehicle toward the house where defendant was apprehended. Moreover, the evidence strongly supported an inference that defendant was not in the house for innocent purposes because he did not live at that address and had tried to conceal his identification in an uninhabited part of the house. People v Harrington, 2020 NY Slip Op 02399, Fourth Dept 4-24-20

 

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CPL 330.30 MOTION ALLEGING JUROR MISCONDUCT DURING DELIBERATIONS, I.E. CONDUCTING A REENACTMENT, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the Criminal Procedure Law 330.30 motion alleging misconduct during jury deliberations should not have been denied without a hearing. The defendant was charged with menacing a police officer and whether the defendant heard the announcement that the people knocking on his door were deputy sheriffs was a critical issue. Defense counsel learned after the trial that the jurors had conducted a reenactment in the jury room to determine whether defendant heard the sheriffs:

… [I]n support of the motion, defendant submitted the affirmation of his attorney. Defendant’s attorney alleged that, during post-verdict discussions with the jury, he learned that the jurors had attempted during their deliberations to determine whether defendant was aware that the people knocking at his door were sheriff’s deputies by using the bathroom door in the deliberation room to reenact the moment when one of the deputies knocked on defendant’s door and announced the deputies’ presence. The court did not conduct a hearing and instead summarily denied the motion, ruling that, although the alleged jury reenactment constituted a conscious, contrived experiment that placed before the jury evidence not introduced at trial, the experiment was not directly material to any critical point at issue. That was error.

As defendant correctly contends, whether he could hear the announcement by the deputy was directly material to a critical point at issue in the trial—indeed, to an element of menacing a police officer—i.e., whether defendant “knew or reasonably should have known” that the people at his door were sheriff’s deputies (Penal Law § 120.18 …). We conclude under the circumstances of this case that a hearing is required to ascertain whether and in what manner the alleged reenactment occurred, and whether such conduct “created a substantial risk of prejudice to the rights of the defendant by coloring the views of the . . . jur[y]” … . People v Newman, 2020 NY Slip Op 02449, Fourth Dept 4-24-20

 

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DEFENDANT WAS CONVICTED OF STABBING THE VICTIM AT A CROWDED PARTY BUT NO ONE SAW DEFENDANT WITH A KNIFE; DEFENSE REQUEST FOR THE CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder conviction, determined that the defense request fot eh circumstantial evidence jury instruction should have been granted. It was alleged defendant stabbed the victim but no one saw the defendant with a knife:

The victim was stabbed five times at a crowded house party where there were multiple ongoing fights, and the evidence established that the victim was involved in physical altercations with at least two other partygoers. One of the wounds was almost five inches deep, meaning that the blade of the knife must have been at least five inches long. None of the witnesses who observed defendant fighting with the victim observed anything in defendant’s hand during the altercation, and no blood was discovered in the room in which defendant and the victim engaged in their altercation. All of the evidence at trial required the jury to infer that defendant was the perpetrator who had the knife and that he used that knife to stab the victim. We thus conclude that a circumstantial evidence instruction was warranted … . Contrary to the People’s contention, this is not “the exceptional case where the failure to give the circumstantial evidence charge was harmless error” … . People v Swem, 2020 NY Slip Op 02435, Fourth Dept 4-24-20

 

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HEARING REQUIRED TO DETERMINE THE AMOUNT OF RESTITUTION AND TO WHOM RESTITUTION SHOULD BE PAID; UNPRESERVED ERRORS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department determined the record did not include sufficient evidence to support the restitution order and remitted the matter for a hearing:

Defendant’s contention in her main brief that the court erred in ordering her to pay restitution without a hearing is not preserved for our review inasmuch as defendant “did not request a hearing to determine the [proper amount of restitution] or otherwise challenge the amount of the restitution order during the sentencing proceeding” … . We nevertheless exercise our power to review that contention as a matter of discretion in the interest of justice … . Moreover, even assuming, arguendo, that defendant’s further challenge to the court’s purported failure to direct restitution to an appropriate person or entity… required preservation under these circumstances … , we likewise exercise our power to reach that unpreserved contention as a matter of discretion in the interest of justice … . As the People correctly concede, the record does not contain sufficient evidence to establish the amount of restitution imposed, nor does it establish the recipient of the restitution … . We therefore modify the judgment by vacating that part of the sentence ordering restitution, and we remit the matter to County Court for a hearing to determine restitution in compliance with Penal Law § 60.27. People v Meyers, 2020 NY Slip Op 02419, Fourth Dept 4-24-20

 

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ALTHOUGH PETITIONER WAS ADJUDICATED A LEVEL THREE SEX OFFENDER AFTER HIS RELEASE FROM PRISON ON A PRIOR RAPE CONVICTION, HE WAS NOT SUBJECT TO THE RESIDENCY REQUIREMENTS OF THE SEXUAL ASSAULT REFORM ACT AFTER HIS RELEASE FROM PRISON ON A SUBSEQUENT ROBBERY/BURGLARY CONVICTION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner, who was adjudicated a level three sex offender when released after a prior rape conviction, was not subject to the residential restrictions under the Sexual Assault Reform Act (Executive Law § 259-c (14)) upon release after his subsequent robbery/burglary convictions and incarceration:

In 2007, petitioner was convicted of robbery in the second degree and burglary in the third degree, resulting in a sentence of concurrent prison terms, the maximum of which was 13 years in prison, followed by five years of postrelease supervision. In 2017, petitioner reached the conditional release date of that sentence and the Board of Parole determined that, because he was a risk level three sex offender as a result of his 1989 conviction, he was subject to the provisions of the Sexual Assault Reform Act as set forth in Executive Law § 259-c (14) (L 2000, ch 1, as amended by L 2005, ch 544), which, as relevant here, prohibits him from residing within 1,000 feet of school grounds. Petitioner failed to offer any proposed residence that would permit him to comply with that condition, other than the New York City homeless shelter system, which the Department of Corrections and Community Supervision regarded as inappropriate. As such, petitioner was maintained in the custody of the Department of Corrections and Community Supervision. …

For the reasons stated in People ex rel. Negron v Superintendent, Woodbourne Corr. Facility (170 AD3d 12 [2019]), we agree with petitioner and find that he is not subject to the conditions of Executive Law § 259-c (14) (see Matter of Cajigas v Stanford, 169 AD3d 1168 [2019] … . Matter of Green v LaClair, 2020 NY Slip Op 02338, Third Dept 4-23-20

 

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REVERSIBLE ERROR TO ADMIT INTO EVIDENCE A VIDEO OF THE INTERROGATION OF DEFENDANT SHOWING HIM REMAINING SILENT WHILE THE POLICE RECOUNTED THE CASE AGAINST HIM (THIRD DEPT).

The Third Department reversed defendant’s conviction because a video of his interrogation, which showed him remaining silent while the police recounted the case against him, was admitted into evidence:

“It is a well-established principle of state evidentiary law that evidence of a defendant’s pretrial silence is generally inadmissible” … . There are many reasons why an individual may choose not to speak to the police; however, there is a substantial risk that jurors might construe such silence as an admission and draw an unwarranted inference of guilt … . Here, the admitted video consists of the police recounting their case against defendant, including reading his texts aloud and being met largely, if not completely, with silence. Defendant is shown slouching, with an ankle shackle securing him to the chair, and he is dressed in a hooded sweatshirt with oversized sweatpants worn in a manner so as to expose his underwear. His attitude appears to be dismissive and, at one point, he laughs in response to police questioning. Throughout the video, defendant makes no inculpatory statements. Both detectives who appear in the video were presumably available to testify and, in fact, one of them did testify.

Allowing evidence of defendant’s selective silence was highly prejudicial because there was a significant risk that the jurors deemed defendant’s failure to answer the police officer’s questions to be an admission of guilt … . Given its highly prejudicial nature and that it contained little to no probative value, we agree with defendant that County Court erred in allowing the redacted video to be shown to the jury … . This error was compounded by the People’s use of the video during summation, wherein the prosecutor highlighted and commented upon defendant’s silence during the police interrogation. In doing this, the People improperly shifted the burden to defendant … . People v Chapman, 2020 NY Slip Op 02330, Third Dept 4-23-20

 

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MISTRIAL BASED UPON DEFENSE COUNSEL’S CONFLICTS OF INTEREST WAS PROPERLY GRANTED WITH DEFENDANT’S CONSENT; DOUBLE JEOPARDY DID NOT ATTACH (THIRD DEPT).

The Third Department determined the mistrial, based upon defense counsel’s conflicts of interest (representation of prosecution witnesses) was properly granted with defendant’s consent. Therefore double jeopardy did not attach:

Upon learning of defense counsel’s potential conflicts of interest, County Court engaged in a lengthy colloquy with the parties, during which they explored — to no avail — ways to avoid the conflict, including the possibility of the Special Prosecutor foregoing testimony from the witnesses. The court explained the ramifications of the conflict to defendant more than once, emphasizing that defense counsel’s ethical obligations to his prior clients — the intended prosecution witnesses — could “impact his ability to cross-examine them as vigorously or as effectively or as thoroughly as he otherwise would.” Following this explanation, County Court presented defendant with the choice to waive any conflict and proceed with his assigned counsel or request the assignment of new counsel, thereby necessitating a mistrial and a retrial. Although defendant asserted that he did not “want to do this again,” he also expressed discomfort with being at a disadvantage should his assigned counsel be unable to fully cross-examine either of the prosecution witnesses and ultimately stated, “I’d like to seek new counsel, I guess.” Later, in response to County Court’s additional queries, defendant confirmed that he wanted a new attorney and reasserted his unwillingness to waive any potential conflict of interest. Thereafter, County Court asked if there was an application for a mistrial, to which defendant — through his assigned counsel — stated that there was. … Upon our review of the entire colloquy, we find that defendant requested and, thus, consented to a mistrial … . Inasmuch as the record wholly belies defendant’s further contention that County Court and/or the Special Prosecutor deliberately engaged in misconduct intended to provoke a mistrial, defendant’s retrial was not barred by double jeopardy protections … . People v Ellis, 2020 NY Slip Op 02292, Third Dept 4-16-20

 

SHORTLY BEFORE TRIAL, THE PEOPLE WERE PROPERLY ALLOWED TO AMEND THE REFERENCE TO A DATE IN THE INDICTMENT (THIRD DEPT).

The Third Department noted that the People were properly allowed to amend the designation of the date of an offense alleged in the indictment shortly before the trial began:

“At any time before or during trial, the court may, upon application of the [P]eople and with notice to the defendant and opportunity to be heard, order the amendment of an indictment with respect to defects, errors or variances from the proof relating to . . . time . . ., when such an amendment does not change the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed such indictment, or otherwise tend to prejudice the defendant on the merits” (CPL 200.70 [1]). Here, the original indictment asserted that defendant’s first assault upon the victim took place on June 15, 2017. About two weeks before the commencement of the trial, the People sought leave to amend it to provide that the incident occurred “on or about” June 15, 2017, on the ground that the initial date had been an approximation and that subsequent investigation had narrowed down the time to the late evening hours of June 15, 2017 and/or the early morning hours of June 16, 2017. The amendment did not alter the theory of the prosecution; the People consistently maintained, both before the grand jury and at trial after the amendment, that defendant strangled and assaulted the victim in their room after the gathering in the motel office and before her first treatment at the hospital on the morning of June 16, 2017. The amendment merely served to address the possibility that the incident began in the evening of June 15, 2017 and continued past midnight into the early morning hours of the next day. There was no prejudice to defendant, who did not proffer an alibi defense … . People v Baber, 2020 NY Slip Op 02294, Third Dept 4-16-20

 

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AFTER THE INITIAL INVESTIGATION AT THE SCENE AND AFTER DEFENDANT WAS HANDCUFFED AND SEATED IN THE BACK OF THE POLICE CAR, THE OFFICER ASKED DEFENDANT “WHAT HAPPENED?”; DEFENDANT’S RESPONSE SHOULD HAVE BEEN SUPPRESSED; CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined statements made by defendant when he was handcuffed in the back of a police car should have been suppressed. The officer (Nellis) asked the defendant “What happened?” after the initial investigation was over:

After Nellis arrived at the scene and discovered defendant in the driveway, he entered the residence and found the victim being treated by defendant’s mother. The victim was convulsing and making gurgling sounds, and Nellis observed bruises and dried blood on her face. Nellis radioed emergency services to respond immediately, exited the residence and informed defendant that he was being detained for questioning. The officer did not immediately ask defendant what happened, but, after defendant was handcuffed and placed in the backseat of the patrol car, Nellis asked defendant, “What happened?” In response, defendant told him that he “snapped” and he “wanted her to feel the pain he had.” Defendant also admitted, “I choked her with a rope but never struck her in the face.” County Court allowed the statements, reasoning that the purpose of Nellis’ questioning was to clarify the nature of the volatile situation rather than to elicit evidence of a crime. We disagree.

The incident had been completed, the parties had been identified and medical assistance requested; defendant had been cooperative and responsive. “[W]here criminal events have been concluded and the situation no longer requires clarification of the crime or its suspects, custodial questioning will constitute interrogation” … . …

We cannot say beyond a reasonable doubt that these statements did not contribute to defendant’s conviction and, as such, the error was not harmless. People v McCabe, 2020 NY Slip Op 02288, Third Dept 4-16-20

 

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