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DEFENSE MOTION TO SET ASIDE THE VERDICT BASED UPON THE ALLEGED MISCONDUCT OF TWO JURORS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FIRST DEPT).

The First Department, ordering a hearing, determined a juror’s expression of a romantic interest in a member of the prosecution team could amount to disqualifying juror misconduct. Allegations about another juror’s close relationship with a witness also warranted a hearing. The defense had moved to set aside the verdict alleging juror misconduct:

The court improvidently exercised its discretion in denying, without a hearing, that branch of defendant’s motion to set aside the verdict on the ground of alleged misconduct by two jurors (see CPL 330.40[2][f]).

The People’s trial preparation assistant, who assisted the trial prosecutors, disclosed that some time after the trial and before sentencing, he received a handwritten note in the mail from the jury foreperson, stating: “Now that the trial is over . . .” (ellipsis in original), followed by the juror’s first and last name, her juror number, the court part in which the trial had occurred, her phone number, and her address. The note also included a crossed-out phrase from which it could be inferred that the original version of the note had been written during the trial.

Under the circumstances, the note itself was sufficient evidence to raise an issue of fact about whether the foreperson’s apparent romantic interest in the trial preparation assistant prevented her from deliberating fairly … . The assistant’s affidavit stating that he did not respond to the juror’s note or otherwise communicate with her at any time is not dispositive, as the issue is the juror’s misconduct or bias during the trial.

The court also erred with regard to a second juror. That juror had a sufficiently close relationship with a witness to warrant a hearing as to whether that juror engaged in misconduct by failing to disclose the relationship to the court. People v Guillen, 2020 NY Slip Op 00387, First Dept 1-21-20

 

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IN PERHAPS THE FIRST APPELLATE-JUSTICE REVIEW OF A PROTECTIVE ORDER UNDER THE NEW PROVISIONS OF CRIMINAL PROCEDURE LAW 245.70, JUSTICE SCHEINKMAN FOUND THE PEOPLE DID NOT SUBMIT SUFFICIENT EVIDENCE TO JUSTIFY WITHHOLDING FROM THE DEFENSE THE IDENTITIES OF WITNESSES IN THIS RAPE/MURDER CASE (SECOND DEPT).

The Second Department, in one of the first decisions under the new discovery provisions of the Criminal Procedure Law, after an expedited review by Justice Scheinkman pursuant to CPL 245.70, reversing Supreme Court, determined the protective order prohibiting defense access to the names, addresses and other identifying information of witnesses in this rape/murder case must be vacated without prejudice:

CPL 245.70(1) provides that, upon a showing of good cause by either party, the court may order that disclosure and inspection be denied, restricted, conditioned, or deferred, or make such order as appropriate. The court is now specifically permitted to condition discovery on making the information available only to counsel for the defendant (see CPL 245.70[1]). Alternatively, the court is permitted to order defense counsel, or persons employed by the attorney or appointed by the court to assist in the defense, not to disclose physical copies of discoverable documents to the defendant or anyone else, subject to the defendant being able to access redacted copies at a supervised location … . Should the court restrict access to discovery by the defendant personally, the court is required to inform the defendant on the record that counsel is not permitted by law to disclose the material or information to the defendant … . * * *

This case is one of the first under this new review procedure. The threshold question is what standard is the intermediate appellate justice to apply in performing the expedited review. The statute is silent on that subject.

This Justice accepts the proposition that where a pure question of law is concerned, the reviewing justice decides the question de novo … . Where, however, 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 … .

… [T]he People’s affirmation was unaccompanied by any affidavit from anyone with personal or direct knowledge of the relevant circumstances. … [W]hile alleging that a witness had been approached in person and by use of social media by “associates” of the defendant, the People did not set forth the name of any such associate, the relationship between the defendant and any associate, the date or approximate date of the alleged improper approach, or even a general description of the incident. While the use of social media is alleged, no screen shot or other depiction of the communication was provided. Further, the four corners of the affirmation do not contain the identity of the witnesses subject to the contact that caused concern. In short, the sealed affirmation submitted to justify the issuance of the protective order is vague, speculative, and conclusory. Under these circumstances, the affirmation was legally insufficient to support the granting of the relief sought. People v Beaton, 2020 NY Slip Op 00372, Second Dept 1-17-20

 

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ANNOUNCING A SIGNIFICANT CHANGE IN ITS APPELLATE-REVIEW CRITERIA, THE 3RD DEPARTMENT NOW HOLDS THE FAILURE TO INCLUDE THE DATE, APPROXIMATE TIME OR PLACE OF A CHARGED OFFENSE IN A SUPERIOR COURT INFORMATION (SCI) OR A WAIVER OF INDICTMENT IS NOT A JURISDICTIONAL DEFECT AND THEREFORE MUST BE PRESERVED FOR APPEAL (THIRD DEPT).

The Third Department, departing from its precedent based upon a recent (November 2019) ruling by the Court of Appeals, determined the failure to include the date, approximate time or place of the charged offense in a superior court information (SCI) and/or a waiver of appeal is not a jurisdictional defect:

Defendant’s sole contention on this appeal, which the People have conceded based on this Court’s decision in People v Busch-Scardino (166 AD3d 1314 [2018]), is that the waiver of indictment is invalid and the superior court information (hereinafter SCI) is jurisdictionally defective for failing to set forth the approximate time of the charged offense in accordance with CPL 195.20. Indeed, that has been the standard we have applied since Busch-Scardino, and we further recognize that this is not a case where the time of the offense “is unknown or, perhaps, unknowable” … . …

The Court of Appeals recently addressed the validity of appeal waivers in three consolidated appeals, and, in one of the appeals, the Court also addressed the validity of that defendant’s waiver of indictment with respect to charges involving child sexual abuse (People v Lang, ___ NY3d ___, ___, 2019 NY Slip Op 08545, *7-9 [2019]). * * *

The reasoning of Lang requires this Court to reassess and abandon the standard enunciated in Busch-Scardino. There is no question here that the waiver of indictment was signed in open court with counsel present in accordance with the procedural requirements set forth in NY Constitution, article I, § 6, which “establishes the prima facie validity of the waiver of the right to prosecution by indictment” … . The “approximate time” of the arson charge under review constitutes nonelemental factual information. Lang instructs that we should look not only at the waiver of indictment and the SCI, but also at the local accusatory instruments to ascertain whether adequate notice was provided. Here, the felony complaint mirrors both the waiver and the SCI by providing the date and specific address, but without specifying the approximate time. Nonetheless, defendant raised no objection before County Court, made no demand for a bill of particulars and “lodges no claim that he lacked notice of the precise crime[] for which he waived prosecution by indictment” … . In context, we conclude that the defect here was not jurisdictional and that defendant forfeited his challenge upon his plea of guilty … . People v Elric YY., 2020 NY Slip Op 00326, Third Dept 1-16-20

 

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IN A SIGNIFICANT DEPARTURE FROM PRECEDENT BASED UPON A NOVEMBER 2019 COURT OF APPEALS DECISION, THE FAILURE TO INCLUDE THE DATE, APPROXIMATE TIME OR PLACE OF A CHARGED OFFENSE IN A SUPERIOR COURT INFORMATION (SCI) OR A WAIVER OF INDICTMENT IS NOT A JURISDICTIONAL DEFECT AND THEREFORE MUST BE PRESERVED FOR APPEAL (THIRD DEPT).

The Third Department, departing from its precedent based upon a recent (November 2019) ruling by the Court of Appeals, determined the failure to include the date, approximate time or place of the charged offense in a superior court information (SCI) and/or a waiver of appeal is not a jurisdictional defect. Any challenge to the SCI or waiver of appeal on this ground must be preserved and, if it is not, the challenge is forfeited by a guilty plea:

… [W]e note that this Court, relying on People v Boston (75 NY2d 585, 589 [1990]), has previously held that the failure to strictly comply with the statutory requirements for waiving indictment pursuant to CPL 195.20 — including the failure to include the approximate time of each offense charged in the waiver of indictment or SCI — constitutes a jurisdictional defect that may be raised at any time, is not subject to the preservation requirement and is not precluded by a defendant’s guilty plea or waiver of the right to appeal … . However, the Court of Appeals recently decided People v Lang (___ NY3d ___, 2019 NY Slip Op 08545 [2019]) wherein it rejected the argument that omission of the approximate time of the charged offense in the waiver of indictment and/or SCI constitutes a jurisdictional defect — the same argument presently raised by defendant — specifically holding that the omission of such a fact presents a mere “technical challenge” as it constitutes “non-elemental factual information that is not necessary for a jurisdictionally-sound indictment” … . Accordingly, insofar as the subject waiver of indictment and SCI provided defendant with adequate notice of the date and location of the charged offenses, and as omission of the approximate time of the charged offense from the waiver of indictment and/or SCI constituted a nonjurisdictional defect … to which defendant did not object at a time when Supreme Court could have addressed the alleged deficiency, defendant’s present challenge was forfeited by his guilty plea … . People v Shindler, 2020 NY Slip Op 00327, Third Dept 1-16-20

 

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THE CO-DEFENDANT’S REDACTED STATEMENT SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE BECAUSE IT WAS CLEAR THE REDACTED PORTIONS REFERRED TO DEFENDANT AND WERE INCULPATORY, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the redacted statement of the co-defendant (Quaile) should not have been admitted in evidence because it was clear the redacted portions referred to the defendant and were inculpatory. Defendant’s right to confront the witnesses against him was violated:

… [A]lthough Quaile’s statement was redacted, the jury was allowed to see where portions were blacked out and, given that the statement focused upon defendant’s arrest and the items found in the trailer, there were “obvious indications that it was altered to protect the identity of a specific person,” namely, defendant … . The redacted statement further advised the jury that defendant was Quaile’s live-in boyfriend, that she did not know what the plastic bottle and tissues found in their bedroom were used for, that she did not know how to make methamphetamine and that she “did not know the answers” to some of [a sheriff’s] questions at the trailer. When those comments are considered in tandem with the location of the blacked-out text in the statement, they can “only be read by the jury as inculpating defendant” by suggesting that he had the information and know-how that Quaile lacked and was involved in the charged crimes … . The admission of the statement therefore violated defendant’s right to confront the witnesses against him. In view of County Court’s failure “to give the critical limiting instruction that the jury should not consider the statement itself against anyone but” Quaile, as well as the lack of methamphetamine in the trailer or test results tying the items found in the trailer to methamphetamine production, we cannot say that the evidence against defendant is overwhelming or ” that ‘there is no reasonable possibility that the erroneously admitted [statement] contributed to the conviction'” … . People v Stone, 2020 NY Slip Op 00323, Third Dept 1-16-20

 

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THE IDENTIFICATION EVIDENCE WAS TOO WEAK TO PROVIDE PROBABLE CAUSE FOR ARREST, DEFENDANT’S STATEMENTS SHOULD HAVE BEEN SUPPRESSED; THE APPELLATE COURT CAN NOT CONSIDER THE PEOPLE’S ARGUMENT THAT DEFENDANT WAS NOT IN CUSTODY WHEN HE MADE THE STATEMENTS BECAUSE THE ISSUE WAS NOT RULED ON BELOW (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction and ordering a new trial, determined the identification evidence was too weak to constitute probable cause for defendant’s arrest. Therefore defendant’s motion to suppress his statements should have been granted. The court noted that the People’s argument that defendant was not in custody when the statements were made could not be considered because the issue was not ruled upon by the trial court:

Contrary to the Supreme Court’s finding, no evidence was presented at the hearing that the defendant was identified “from a photographic image taken from one of the videos.” Detective John Kenney testified that a witness provided a description of the person she had seen holding a gun after shots were fired, including that the person was riding a bicycle. Kenney indicated that the witness was shown a photograph taken from a video recorded outside a restaurant near the scene of the crime, and that the witness identified the person depicted in the photograph as the individual she had seen holding a gun. Kenney also testified that another witness identified the person depicted in that photograph as the individual he had seen riding a bicycle after hearing the gunshots. However, no testimony was elicited that the person depicted in the photograph was identified as the defendant. Further, Detective Patrick Henn testified that another video was recorded across the street from the defendant’s home “just before the crime,” showing a person who “appeared to be the defendant” leaving his home several blocks away from the scene of the crime on a bicycle. However, no testimony was elicited that the witnesses were shown a photograph taken from the video of the defendant’s home, let alone that the witnesses identified the person depicted in that video as the person they saw holding a gun or riding a bicycle after the shots were fired. The mere fact that a person believed to be the defendant was observed riding a bicycle several blocks away from the scene of the crime, shortly before the shooting, is too innocuous, standing alone, to support a finding of probable cause … . Further, Henn’s conclusory testimony that the defendant “became the prime suspect” based on “[v]ideos and canvasses conducted,” without further details, was insufficient to demonstrate the existence of probable cause … . Consequently, the People failed to establish that the police had probable cause to arrest the defendant, and thus, the court should have suppressed, as fruits of the unlawful arrest, the lineup identification testimony and the defendant’s statements made to law enforcement officials on October 24, 2011 … . People v Kamenev, 2020 NY Slip Op 00301, Second Dept 1-15-20

 

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DEFENDANT WAS TOLD BY DEFENSE COUNSEL WHEN HE PLED GUILTY IN 2007 THAT IF HE STAYED OUT OF TROUBLE WHILE ON PROBATION HE WOULD NOT BE DEPORTED, HOWEVER DEPORTATION WAS MANDATORY; DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL; CRITERIA FOR DETERMINING WHETHER THERE WAS A REASONABLE PROBABILITY DEFENDANT WOULD HAVE GONE TO TRIAL, INCLUDING HIS UNDISPUTED STRONG DESIRE TO STAY IN THE US, EXPLAINED IN SOME DEPTH (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, determined defendant (Martinez) was entitled to a hearing on his CPL 440.10 motion to vacate his 2007 judgment of conviction. At the time defendant pled guilty the court warned him there could be immigration consequences, but defense counsel told him he wouldn’t have to worry about deportation if he stayed out of trouble while on probation. In fact, however, deportation was mandatory. Supreme Court denied the motion based in part on defendant’s motivation for it, i.e., the expansion of his taxi business in Massachusetts. The First Department noted that plaintiff’s current motivation for the motion to vacate is irrelevant. The matter was sent back for a hearing in front of a different judge:

In the context of a guilty plea, the ultimate question of prejudice is whether there was a reasonable probability that a reasonable person in a defendant’s circumstances would have gone to trial if given constitutionally adequate advice … . A defendant must convince the court that a decision to reject the plea bargain would have been rational … . In that regard, appropriate factors to be weighed include, among others, evidence of defendant’s incentive, at the time of his plea, to remain in the United States rather than his native country; his respective family and employment ties at the time of his plea, to the United States, as compared to his country of origin; the strength of the People’s case; and defendant’s sentencing exposure … . In answering the prejudice question, judges should be cognizant that a noncitizen defendant confronts a very different calculus than confronts a United States citizen … . For a noncitizen defendant, “preserving [his] right to remain in the United States may be more important to [him] than any jail sentence”… . Thus, a determination of whether it would be rational for a defendant to reject a plea offer “must take into account the particular circumstances informing the defendant’s desire to remain in the United States” … .

Significantly, on the record before this Court, there is reason to believe that Martinez would have given paramount importance to avoiding deportation, if he had known that it was more than a mere possibility, but was an unavoidable consequence of his plea to an aggravated felony. Indeed, evidence regarding Martinez’s background completely supports his current assertion that his main focus has been always to remain in the United States. This much is undisputed: his long history in the United States, his efforts to become a citizen, his family circumstances, and his gainful employment in Massachusetts, all signal his strong connection to, and desire to remain in, the United States … . People v Martinez, 2020 NY Slip Op 00252, First Dept 1-14-20

 

DEFENDANT’S DISCARDING A BAG OF MARIJUANA AS HE WAS BEING PURSUED BY POLICE FOR AN OPEN-CONTAINER VIOLATION CONSTITUTED ATTEMPTED TAMPERING WITH PHYSICAL EVIDENCE (SECOND DEPT).

The Second Department determined that defendant’s discarding a bag of marijuana as he was being pursued by a police officer for violating the city’s open-container law constituted attempted tampering with physical evidence, not tampering with physical evidence:

Here, the charge of tampering with physical evidence was based on the defendant’s act of discarding the plastic bag containing marijuana as he was being pursued by Officer Scuadroni for violating the City’s open-container law. Contrary to the People’s contention, the defendant’s act of discarding the bag did not constitute an act of concealment within the meaning of Penal Law § 215.40(2). Nevertheless, since the defendant “engage[d] in conduct that tends to effect, and comes dangerously near to accomplishing, an act of concealment intended to suppress the physical evidence” … , there is legally sufficient evidence to sustain a conviction of attempted tampering with physical evidence (see Penal Law §§ 110.00, 215.40[2 …). Accordingly, we reduce the defendant’s conviction of tampering with physical evidence to attempted tampering with physical evidence … . People v Zachary, 2020 NY Slip Op 00165, Second Dept 1-8-20

 

SENTENCE DEEMED HARSH AND EXCESSIVE; REDUCED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department reduced the defendant’s sentence, noting it was defendant’s first conviction, her strong family and community ties, her long employment history and her mental health history. “The defendant was convicted of two counts each of rape in the third degree, criminal sexual act in the third degree, and endangering the welfare of a child arising out of two separate incidents wherein the defendant, who was a paraprofessional at a school which the 16½-year-old victim attended, took the victim to a hotel and had sexual intercourse and oral sex with him:”

Appeal by the defendant from a judgment … convicting her of rape in the third degree (two counts), criminal sexual act in the third degree (two counts), and endangering the welfare of a child (two counts), after a nonjury trial, and sentencing her to determinate terms of imprisonment of 3 years on each of the counts of rape in the third degree (counts 1 and 4) and criminal sexual act in the third degree (counts 2 and 5), to be followed by a period of postrelease supervision of 10 years, and a determinate term of imprisonment of 1 year on each of the counts of endangering the welfare of a child (counts 3 and 6), with the sentences imposed on counts 1, 2, and 3 to run concurrently with each other, and the sentences imposed on counts 4, 5, and 6 to run concurrently with each other and consecutively to the sentences imposed on counts 1, 2, and 3. * * *

The sentence imposed, which is at the upper end of the legal sentencing range, is harsh and excessive … . Accordingly, exercising our interest of justice jurisdiction, we modify the sentence to the extent indicated herein … . People v Thompson, 2020 NY Slip Op 00164, Second Dept 1-8-20

 

JUROR SHOULD NOT HAVE BEEN REPLACED WITH AN ALTERNATE; NO SHOWING JUROR WAS ‘UNAVAILABLE’ WITHIN THE MEANING OF CPL 270.35; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the trial judge should not have discharged a juror and replaced her with an alternate after the proof had closed and before summations. The juror was not “unavailable” within the meaning of Criminal Procedure Law (CPL) 270.35:

… [A]fter both sides had rested but before summations, the Supreme Court, over the defendant’s objection, excused juror No. 10 and replaced her with an alternate on the basis that juror No. 10 had to travel to Maryland for an evening work obligation the next day, which was a Friday. The day after the alternate was substituted, the jury found the defendant guilty of assault in the first degree and criminal possession of a weapon in the fourth degree. …

… [T]he defendant’s statutory and constitutional rights were violated when, over the defendant’s objection, the court excused Juror No. 10 and substituted an alternate juror. The record does not demonstrate that Juror No. 10 was unavailable as that term is used in CPL 270.35 … . Juror No. 10’s work obligation did not render her unavailable for jury service, as her own convenience or potential financial hardship are insufficient to render her unavailable under CPL 270.35 … . People v Alleyne, 2020 NY Slip Op 00154, Second Dept 1-8-20

 

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