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REVERSAL IS NOT REQUIRED WHEN A JURY NOTE WHICH WAS NOT ADDRESSED BY THE COURT HAD NO DIRECT RELEVANCE TO THE CHARGED OFFENSE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined, after a reconstruction hearing, the trial judge was not made aware of a jury note which requested a trial exhibit and a chronology of events relating to the defendant’s dating the victim’s relative. The judge’s clerk provided the trial exhibit to the jury. No such chronology existed and the judge was not informed of the request for it. Because the chronology did not have anything to do with the charged offense, the failure to address that aspect of the jury note was not a mode of proceedings error:

… [T]he chronology requested by the jury involved background factual information regarding a former relationship between defendant and a relative of the victim that had no relevance to any of the elements of the charged crime or to the jury’s process of reaching a verdict … . … [I]n Silva, the Court of Appeals found that a trial court’s O’Rama [78 NY2d 270] error did not require reversal of the defendant’s drug-related convictions because the jury inquiry did not pertain to those convictions, but only to a conviction for weapon possession (People v Silva, 24 NY3d at 301 n 2). Likewise, in People v Walston (23 NY3d 986, 990 [2014]), the defendant’s manslaughter conviction was reversed because of a trial court’s mode of proceedings error, but the Court of Appeals held that reversal of a separate conviction on another charge was not required because the note did not address that offense.

Thus, reversal of a conviction is not required when a trial court fails to address a jury inquiry that has no direct relevance to that conviction … . People v Johnson, 2020 NY Slip Op 01668, Third Dept 3-12-20

 

FAILURE TO INCLUDE THE APPROXIMATE TIME OF THE COMMISSION OF THE OFFENSE IN THE SUPERIOR COURT INFORMATION (SCI) IS NOT A JURISDICTIONAL DEFECT (THIRD DEPT). ​

The Third Department determined that the Superior Court Information (SCI) was not jurisdictionally defective and therefore any attack on the validity of the SCI was precluded by the waiver of appeal:

Pursuant to our recent decisions in People v Elric YY. (179 AD3d 1304 [2020]) and People v Shindler (179 AD3d 1306 [2020]), defendant’s further contention that her 2015 waiver of indictment was jurisdictionally defective because the SCI did not set forth the approximate time of the commission of the charged crimes as required by CPL 195.20 is also without merit … . The omission of the approximate time of the charged crimes in the SCI, to which defendant did not object, is a nonjurisdictional defect to which any objection was forfeited by her guilty plea. Notably, no claim has been made that defendant lacked notice of the specific crimes for which she agreed to waive prosecution by indictment. People v Edwards, 2020 NY Slip Op 01671, Third Dept 3-12-20

 

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DEFENDANT WAS ALONE IN HIS CAR ARGUING WITH SOMEONE ON HIS PHONE WHEN THE POLICE APPROACHED; THE POLICE DID NOT HAVE AN OBJECTIVE, CREDIBLE REASON FOR THE APPROACH; THE HANDGUN FOUND IN AN INVENTORY SEARCH SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, reversing County Court and dismissing the indictment, determined the police officers did not have an objective credible reason for approaching defendant, who was in his car outside a nightclub just after the club closed. The defendant was arrested after a check on his license revealed it had been suspended. The handgun found in an inventory search of the car should have been suppressed:

… [D]efendant’s engagement in an argument on his cell phone while alone in his private vehicle — did not provide any apparent nexus to the drug and weapons crimes that police said were typically committed in the area, or give rise to any other objective reason to question his presence. Nothing about a driver’s conduct in arguing on a cell phone, without more, suggests criminal activity related to weapons or drugs … . A sole occupant of a private vehicle arguing with someone who is not present gives rise to no apparent reason for police to intervene, such as potential safety concerns … .

Thus, we find that police did not have the requisite objective, credible reason for approaching defendant’s vehicle in the first instance. The encounter was further invalid because police had no objective, credible reason to extend the initial conversation by running defendant’s driver’s license after he responded to their initial inquiry and provided the information they requested … . The officer gave no explanation for his decision to intrude further at that point, nor does the record reveal such an explanation. Nothing about the exchange with defendant gave rise to any reason to suspect that he was not telling the truth … . Defendant’s driver’s license did not appear to belong to someone else … or reveal anything unusual on its face … . Lacking an objective, credible reason that justified police in approaching defendant’s vehicle and making inquiries, the encounter was invalid at its inception … . People v Stover, 020 NY Slip Op 01676, Third Dept 3-12-20

 

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DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING; DEFENSE COUNSEL WAS NOT FAMILIAR WITH THE CASE OR THE DEFENDANT’S BACKGROUND (SECOND DEPT).

The Second Department, reversing the conviction, determined defendant did not receive effective assistance of counsel at sentencing. Counsel was not familiar with the case of the defendant’s background:

… [T]he defendant was deprived of the effective assistance of counsel at sentencing. A defendant is ” entitled to an opportunity to be represented by counsel sufficiently familiar with the case and the defendant’s background to make an effective presentation on the question of sentence'” … . Here, the defendant’s counsel at sentencing made no substantive arguments on the defendant’s behalf, and the record demonstrates that counsel had no meaningful knowledge of the case or of the defendant’s background. People v Jones, 2020 NY Slip Op 01640, Second Dept 3-11-20

 

THE JURY WAS NOT PROPERLY INSTRUCTED ON THE JUSTIFICATION DEFENSE, INDICTMENT COUNT DISMISSED (SECOND DEPT).

The Second Department determined the jury was not properly instructed on the justification defense:

… [T]he Supreme Court instructed the jurors to consider justification as an element of each count submitted for their consideration. The court also instructed the jurors that they must find the defendant not guilty of all counts if they found that the People failed to disprove the defendant’s justification defense. However, the verdict sheet did not mention justification, and the court did not instruct the jurors that if they were to find the defendant not guilty of the greater counts of assault in the second degree on the basis of justification, they were not to consider the lesser count of obstructing governmental administration in the second degree. We cannot say with any certainty, and there is no way of knowing, whether the jurors acquitted the defendant of the greater counts on the ground of justification so as to mandate acquittal on the lesser count … .

The evidence at trial of lack of justification was not overwhelming … . Although, ordinarily, a new trial would be ordered, since the defendant was acquitted of the assault in the second degree counts and the only remaining count of the indictment concerns the offense for which the defendant has already completed his sentence, dismissal of the count of the indictment charging obstructing governmental administration in the second degree, rather than a new trial on that count, is appropriate … . People v Gunther, 2020 NY Slip Op 01638, Second Dept 3-11-20

 

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SECOND DEGREE MURDER COUNTS DISMISSED AS INCLUSORY CONCURRENT COUNTS RE FIRST DEGREE MURDER; CROSS EXAMINATION OF A POLICE OFFICER RE EXCESSIVE FORCE PROPERLY PRECLUDED BECAUSE THE ALLEGATIONS WERE NOT RELEVANT TO CREDIBILITY (SECOND DEPT).

The Second Department determined the second degree murder counts must be dismissed as inclusory concurrent counts of the convictions of first degree murder. The court noted that the trial court properly precluded cross examination of a police officer about allegations of the officer’s use of excessive force because the allegations were not relevant to credibility:

While specific and relevant allegations of misconduct in a civil action filed against a law enforcement officer may be used for the limited purpose of impeaching that law enforcement witness at trial … , such impeachment is subject to the court’s broad discretion in controlling the permissible scope of cross-examination … . Here, the defendant failed to demonstrate that specific allegations of excessive force in a federal action pending against the detective and a finding in 2010 by the Civilian Complaint Review Board that the detective used excessive force were relevant to the detective’s credibility … . People v Brown, 2020 NY Slip Op 01632, Second Dept 3-11-20

 

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PROTECTIVE ORDER PRECLUDING DISCLOSURE OF EVIDENCE TO THE DEFENSE REVERSED (SECOND DEPT).

The Second Department, in a decision by Justice Scheinkman, reversing Supreme Court, vacated a protective order concerning the disclosure of certain evidence to the defense:

I agree with the defendant that the People should have been required to disclose to defense counsel the general nature of the information that the People sought to be protected (see CPL 245.10[1][a] [“Portions of materials claimed to be non-discoverable may be withheld pending a determination and ruling of the court under 245.70 of this article; but the defendant shall be notified in writing that information has not been disclosed under a particular subdivision of (CPL 245.20)”]).

The defendant and his counsel were not informed as to whether what was sought to be protected were only witness names and personal information as opposed to witness statements, police reports, grand jury testimony, video or audio recordings, or other evidence.

I also agree with the defendant that, under the circumstances of this case, the People should have been required to disclose information about the reasons for the application that would not reveal the existence of the information sought to be protected. As I stated in People v Bonifacio (179 AD3d 977, 979), “proceedings on applications for a protective order should be entirely ex parte only where the applicant has demonstrated the clear necessity for the entirety of the application, and the submissions in support of it, to be shielded from the opposing party” and that it may be that “even where some aspects of the application should be considered by the court ex parte, other portions of the application may be appropriately disclosable.” Here, much of the written application could have been disclosed to defense counsel in redacted form without any danger of revealing the information sought to be protected … . People v Belfon, 2020 NY Slip Op 01630, Second Dept 3-11-20

DEFENDANT DEMONSTRATED THE NEED TO TESTIFY ABOUT ONE OF THE ROBBERIES AND THE NEED TO REFRAIN FROM TESTIFYING ABOUT THE OTHER ROBBERY; THE MOTION FOR SEVERANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing the conviction and ordering a new trial, determined defendant’s motion the sever the trials of two distinct robberies should have been granted. Defendant demonstrated the need to testify about his defense of duress re: one of the robberies, and his need to refrain from testifying re: the other robbery due to  the Sandoval ruling:

The affirmative defense of duress requires the defendant to establish coercion by the use or threatened imminent use of unlawful physical force (Penal Law § 40.00[1]). Since the defendant’s written statement did not explain why the defendant did not abandon the Lopez robbery once he was given a gun, the written statement was insufficient to establish that there was a threat of imminent use of physical force … . Indeed, the People argued to the jury that the defendant’s duress defense should be rejected since, once the defendant was given the gun, he could have left the scene without committing the robbery. Thus, the record convincingly established that the defendant had important testimony to give about his duress defense in order to, inter alia, rebut the People’s argument that the defendant was not under duress … . …

… [T]he defendant convincingly showed that he had a genuine need to refrain from testifying in regards to the Pratt robbery. In the event that the defendant testified, the Supreme Court’s Sandoval ruling permitted the People to introduce evidence of the underlying facts of two prior youthful offender adjudications involving robberies that were similar to the Pratt robbery … . Thus, if the defendant elected to testify, he would expose himself to the “risk of serious impeachment” with the underlying facts of two robberies bearing similarities to the Pratt robbery … . However, if he refrained from testifying, he was prejudiced in his ability to present his duress defense to the Lopez robbery counts. People v Moore, 2020 NY Slip Op 01645, Second Dept 3-11-20

 

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A REVOLVER WHICH COULD NOT BE CONNECTED TO THE SHOOTING SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE; ERROR HARMLESS HOWEVER (THIRD DEPT).

The Third Department determined the admission into evidence of a revolver which could not be connected to the shooting at issue was (harmless) error:

Defendant next argues that County Court erred in admitting into evidence an operable .38-caliber revolver, containing five spent rounds, that was recovered from a nearby rooftop a few days after the shooting. Testing could not conclusively show that the revolver was used in the shooting or that it had been handled by defendant, but it remained relevant given the circumstances of its recovery and the fact that it could not be ruled out as the one used by the shooter … . The revolver was accordingly admissible unless its probative value was “substantially outweighed by the danger that it [would] unfairly prejudice the other side or mislead the jury,” and County Court attempted to reduce that danger by telling the jury why the revolver was being admitted into evidence and urging it to give the revolver whatever weight it deemed appropriate … . County Court’s ameliorative efforts arguably fell short but, in our view, any resulting error was harmless “in light of the overwhelming testimony identifying defendant as [the] assailant” … . People v Banks, 2020 NY Slip Op 01525, Third Dept 3-5-20

 

THE USE OF THE TERM “VICTIM” TO REFER TO THE COMPLAINING WITNESS AT TRIAL WHERE THE WITNESS’S CREDIBILITY IS IN ISSUE SHOULD BE AVOIDED (THIRD DEPT).

The Third Department noted that referring to the complaining witness using the term “victim” should be avoided at trial where the witness’s credibility is in issue, but found no error in the way the trial judge handled the matter in this sexual-offense case:

In [a] motion in limine, defense counsel sought to preclude references to the “victim,” arguing that they would dilute the presumption of innocence and deprive defendant of a fair trial. Several New York courts have examined this issue in the specific context of jury instructions and have held that it is improper for a trial court to refer to a complainant as the “victim” in a jury charge, but that reversal is not required unless, taken as a whole, the charge does not otherwise convey the proper standards to the jury … . It does not appear that any New York court has analyzed the issue outside the context of jury instructions, but several courts in other jurisdictions have held that the use of the term “victim” by the prosecution or its witnesses should be avoided where, as here, the credibility of the complaining witness is in issue, and that facts such as the context and frequency of the references and the strength of other evidence should be taken into account in determining whether use of the term is reversible error … . Here, although Supreme Court denied defendant’s application, it also agreed that his concern was “well-grounded” and warned counsel to use caution, stating that “[i]t might call the attorneys over” if a witness repeatedly used terms like “victim” or “assailant,” and that police witnesses should not use such terms in such a way as to have an emotional impact on the jury. While we agree with defendant that references to the complaining witness as the “victim” at trial should be avoided when his or her credibility is in issue, we find no error in the court’s treatment of the issue under the circumstances presented here. People v Horton, 2020 NY Slip Op 01530, Third Dept 3-5-20

 

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