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PROOF OF MULTIPLE INSTANCES OF SEXUAL CONTACT INSUFFICIENT; RISK ASSESSMENT REDUCED TO LEVEL ONE (SECOND DEPT).

The Second Department, reducing defendant’s risk assessment to level one, determined the proof of multiple instances of sexual contact was insufficient:

… [T]he People failed to meet their burden of proof with respect to risk factor 4. Although the People submitted evidence, in the form of the defendant’s statements, that he engaged in sexual contact with the victim on three or four occasions, they failed to submit any evidence as to when these instances of sexual contact occurred relative to one another, so as to demonstrate that such instances were separated in time by at least 24 hours, as the People claimed … . Accordingly, the Supreme Court should not have assessed 20 points under risk factor 4. People v Jarama, 2019 NY Slip Op 09044, Second Dept 12-18-19

 

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IRRELEVANT PHOTOGRAPHS WERE ADMITTED SOLELY TO AROUSE THE EMOTIONS OF THE JURY; THE PROSECUTOR’S REMARKS IN SUMMATION WERE SIMILARLY IMPROPER; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the photographs of the complainant’s genitals and anus were irrelevant and should not have been admitted in this sex-offense case. In addition, the court criticized the prosecutor’s remarks in summation (unpreserved errors):

“Photographic evidence should be excluded only if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant” … . Here, the complainant’s pediatrician, who was called as a witness by the prosecutor, testified that there were no injuries to the complainant’s genitals or anus, and that she did not expect to see any injury based upon the complainant’s report. Nevertheless, the prosecutor then asked the pediatrician to approach the jurors and display the photographs to them. Under the circumstances of this case, the photographs were irrelevant, and served no purpose other than to inflame the emotions of the jury and to introduce into the trial an impermissible sympathy factor … . The error was then compounded when the prosecutor argued in summation that the complainant had to “get on a table and open up her legs and have her genitals photographed to be shown to 15 strangers . . . What did she gain out of this? Nothing.” The improper admission of the photographs cannot be deemed harmless under the circumstances of this case … .

Since there must be a new trial, we note that, although the issue is unpreserved for appellate review, the prosecutor engaged in multiple instances of improper conduct during summation … . For instance, the prosecutor attempted to arouse the sympathies of the jurors … . Additionally, while discussing the character of the defendant, who was a church pastor at the time of trial, the prosecutor referenced the sexual abuse scandals involving the Catholic Church and Orthodox Jewish communities. The prosecutor also pointed out that during jury selection, a prospective juror expressed that she did not feel comfortable sitting on this case because of all the priests who have gotten away with child abuse, and that another prospective juror stated that a family member was raped by a member of the clergy. “[I]n summing up to the jury, counsel must stay within the four corners of the evidence and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused” … . People v Lewis, 2019 NY Slip Op 09023, Second Dept 12-18-19

 

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MATTER REMITTED FOR A REOPENED SUPPRESSION HEARING BASED UPON NEW EVIDENCE THAT THE VEHICLE STOP MAY HAVE BEEN BASED UPON INFORMATION FROM AN ANONYMOUS BYSTANDER (SECOND DEPT).

The Second Department, remitting the matter for a reopened suppression hearing, determined the hearing was warranted by new information that the stop of defendant’s vehicle may have been based on information from an anonymous source. The defendant had already been convicted of attempted robbery twice after a reversal:

We agree with the defendant that the Supreme Court should have granted his motion to reopen the suppression hearing on those branches of his omnibus motion which were to suppress physical evidence recovered as a result of the stop of the livery car and the identification evidence that followed the stop pursuant to CPL 710.40(4). CPL 710.40(4) permits a court to reopen a suppression hearing if additional pertinent facts have been discovered which the defendant could not have discovered with reasonable diligence before the determination of the original suppression motion … . The additional facts discovered need not necessarily be “outcome-determinative or essential'”; instead, they must be “pertinent” in that they “would materially affect or have affected” the earlier suppression ruling … . Here, the revelation that the livery car description may have come from an anonymous bystander who interjected while translating between the complainant and the sergeant at the scene was previously unknown, and because the sergeant did not previously testify in the case, could not have been discovered with due diligence by the defendant. The information that the livery car description came from an unidentified and anonymous bystander would have affected the earlier suppression determination by placing squarely before the court questions regarding the identity and reliability of the person who described the livery car … . People v Dunbar, 2019 NY Slip Op 09018, Second Dept 12-18-19

 

FOR CAUSE CHALLENGE TO A PROSPECTIVE JUROR WAS HANDLED PROPERLY, THERE WAS NO NEED FOR FURTHER INQUIRY OF THE JUROR TO OBTAIN AN UNEQUIVOCAL ASSURANCE THE JUROR COULD BE FAIR (CT APP).

The Court of Appeals, in a brief memorandum, over a three-judge partial dissent, determined the trial court properly handled a for cause challenge to a prospective juror:

The trial court did not abuse its discretion in denying defendant’s challenge for cause to a prospective juror pursuant to CPL 270 (1) (b). When defense counsel directly asked the prospective juror, “if you don’t hear from [defendant], you don’t hear him speak, are you going to hold that against him,” she responded, “I don’t believe that I would.” This response directly refuted any notion that the prospective juror would “hold” defendant’s failure to testify “against him,” i.e., that she would be biased in rendering a decision. Viewing this statement “in totality and in context” … , the exchange did not, in the first instance, demonstrate “preexisting opinions that might indicate bias” … . Thus, the trial court was not required to inquire further “to obtain unequivocal assurance that [the juror] could be fair and impartial” … . People v Patterson, 2019 NY Slip Op 08982, CtApp 12-17-19

 

HARMLESS ERROR ANALYSIS APPLIES TO A JUDGE’S FAILURE TO CHARGE THE JURY IN ACCORDANCE WITH A RULING MADE PRIOR TO SUMMATION, CONVICTIONS AFFIRMED IN THE FACE OF OVERWHELMING EVIDENCE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a concurring opinion and an extensive two-judge dissenting opinion, determined that, in the two cases before the court, the trial court’s reversing, after summation, its pre-summation position on a jury instruction was error, but in both cases was harmless error. The opinion is fact-specific and cannot not be fairly summarized here. In Mairena the judge, after agreeing to do so before summation, failed to charge the jury that defendant could not be convicted of manslaughter unless the jury found the fatal injury was caused by a box cutter or a knife. And in Altamirano, after denying the defense request for a jury charge on the innocent possession of a weapon prior to summation, the judge so charged the jury after summation:

In short, Miller [70 NY2d 903] , Greene [75 NY2d 875] and Smalling [29 NY3d 981] have consistently been applied by the appellate courts of this state and continue to be entitled to full precedential force. In those decisions, this Court meant what it expressly stated: a trial court’s error in reversing a prior charging decision after summations have been completed is subject to harmless error analysis. …

We conclude that the evidence of guilt in both of the instant cases was overwhelming. Thus, as in Miller, Greene and Smalling, whether the error was harmless turns on the question of whether defendants were prejudiced. Although those cases do not clarify whether the constitutional or nonconstitutional standard applies in evaluating prejudice, we need not resolve that question today because, under either standard, the error in each case was harmless. People v Mairena, 2019 NY Slip Op 08978, CtApp 12-17-19

 

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DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A JURY CHARGE ON THE LESSER INCLUDED OFFENSE OF PETIT LARCENY; THE VALUE OF THE STOLEN CELL PHONES SHOULD NOT HAVE BEEN ADDED TOGETHER BECAUSE THERE WAS NO PROOF THE CELL PHONES WERE OWNED BY THE SAME OWNER (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined: (1) defense counsel was ineffective for failing to request the jury be charged with the lesser included offense of petit larceny in this robbery case involving the theft of cell phones: and (2), the value of the cell phones should not have been added together because there was no proof the phones were owned by the same owner:

Defendant was charged with thefts of cell phones from four wireless phone stores. As to one incident, it was alleged defendant forcibly stole a cell phone in that his showing of a knife to the store employee constituted a threat of force and was perceived by the employee as a threat. While the defense conceded that defendant stole a cell phone, it denied any force was used. Nevertheless, at the charge conference prior to jury deliberations, defense counsel failed to ask for submission of the charge of petit larceny. Since the existing record clearly establishes that this was a mistake, rather than a strategic decision, no CPL 440.10 motion is necessary. When counsel asked for submission of the lesser included offense in the midst of jury deliberations, he expressly admitted that he had been “remiss” in not making a timely request. In any event, counsel could not have been employing an all-or-nothing strategy as to the robbery as argued by the People. This strategy would have made no sense, because the defense was conceding that defendant was guilty of petit larceny as to the other incidents and was already inviting convictions of several misdemeanors. …

Defendant is also entitled to dismissal of the grand larceny charge, which was based upon the improper aggregation of the value of phones taken from two separate AT & T stores on two different days. The People failed to prove that the stores, and the phones located therein, had the same “owner” for the purpose of aggregating multiple thefts … . There was no evidence that these stores were owned by the same corporation, as opposed to, for example, dealerships separately owned and authorized to sell AT & T wireless products and services ,,, , People v Camacho, 2019 NY Slip Op 08944, First Dept 12-12-19

 

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PROSECUTOR’S UNTRUE CLAIM, MADE IN SUMMATION, THAT DEFENDANT’S DNA WAS FOUND ON THE WEAPON USED IN THE SHOOTING REQUIRED REVERSAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the prosecutor’s untrue claim, made in summation and immediately objected to, that defendant’s DNA was found on the weapon used to shoot the victim, required a new trial:

… [T]he prosecutor’s comments during summation that the defendant’s DNA was found on the weapon used to shoot the victim had no evidentiary support in the record. The remarks, which were promptly objected to by defense counsel, were highly prejudicial and ultimately deprived the defendant of his right to a fair trial … , particularly as the Supreme Court refused to give any curative instruction or grant a mistrial based upon the prosecutor’s improper comments. People v Day, 2019 NY Slip Op 08858, Second Dept 12-11-19

 

THE INCLUSION OF EXTRANEOUS INFORMATION ON THE VERDICT SHEET WHICH DID NOT PROVIDE ANY SUBSTANTIVE INFORMATION ABOUT THE CASE WAS HARMLESS ERROR (THIRD DEPT).

The Third Department determined, although it was error to include extraneous information on the verdict sheet, i.e., that the defendant had authorized the verdict sheet, the error was harmless:

The Court of Appeals has “held that it is reversible error, not subject to harmless error analysis, to provide a jury in a criminal case with a verdict sheet that contains annotations not authorized by CPL 310.20 (2)” … . Moreover, “[t]he basic principle is that nothing of substance can be included that the statute does not authorize” … . * * *

The extraneous statement was not part of the questions posed to the jury; rather, it was at the end of the verdict sheet. It did not change any of the questions to the jury. … [W]e find that the submission to the jury of the … verdict sheet with the statement asserting that defendant authorized it, without his signature, was not reversible error, because the extraneous statement gave no substantive information to the jury about the case and merely indicated that defendant saw the verdict sheet, was aware of his charges and was represented by an attorney … . People v Stover, 2019 NY Slip Op 08734, Third Dept 12-5-19

 

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ALTHOUGH COUNTY COURT ISSUED, ENTERED AND FILED A DECISION ADJUDICATING DEFENDANT A LEVEL THREE SEX OFFENDER, THERE WAS NO LANGUAGE INDICATING THE DECISION WAS A JUDGMENT OR AN ORDER; IN ADDITION, THE RISK ASSESSMENT INSTRUMENT DID NOT INCLUDE “SO ORDERED” LANGUAGE; THEREFORE THERE WAS NO APPEALABLE ORDER BEFORE THE COURT AND THE APPEAL WAS DISMISSED (THIRD DEPT).

The Third Department dismissed the appeal of County Court’s SORA risk assessment because County Court did not issue an appealable order:

Following a hearing, County Court rejected defendant’s challenge to certain assessed points, adjudicated him as a risk level three sex offender and designated him as a sexually violent offender. Defendant appeals.

An appealable order must be in writing (see CPLR 2219 [a] …), and must contain language that identifies the document as “either a judgment or order of the court”… . Consistent with these mandates, the Sex Offender Registration Act … requires that County Court must “render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based”… . That written order must then be “entered and filed in the office of the clerk of the court where the action is triable” (CPLR 2220 [a] …).

Here, County Court issued a written decision which was subsequently entered and filed. However, the decision contains no language indicating that it is an order or judgment, and it does not appear that a written order was entered and filed … . Moreover, the risk assessment instrument does not contain “so ordered” language so that it may constitute an appealable order … . Accordingly, this appeal is not properly before this Court and must be dismissed … . People v Porter, 2019 NY Slip Op 08743, Third Dept 12-5-19

 

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PROOF OF OCCASIONAL DRUG USE IN THE REMOTE PAST AND REFERRALS FOR ALLEGED DRUG USE IN PRISON SEVERAL YEARS AGO WAS INSUFFICIENT TO WARRANT THE ASSESSMENT OF 15 POINTS FOR A HISTORY OF DRUG AND ALCOHOL ABUSE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant should not have been assessed 15 points for his history of drug and alcohol abuse. The evidence of drug use was remote in time and drug use was not an aspect of the offense:

Defendant reported that, prior to moving to this area in 1987, he had used cocaine once during his incarceration in Alabama and speed while working in the south, but denied any recent drug use. The information regarding defendant’s use of drugs is in the distant past and excessively remote … and, in any event, does not establish a pattern of drug abuse as contemplated by the Sex Offender Registration Act risk assessment guidelines … . In addition, the case summary reflects that, upon being screened by the Department of Corrections and Community Supervision, drug use was not an issue of concern with regard to defendant and he was not, at that time, referred to any alcohol or drug treatment program.

The remaining evidence with regard to defendant’s history of drug or alcohol abuse is the general reference to defendant twice being referred to alcohol and drug abuse treatment programs during his 26 years of incarceration for the instant offense “presumptively” due to defendant receiving five tier III disciplinary sanctions for drug use. The most recent referral was several years ago, in 2012. We find that this is insufficient, by itself, to establish a pattern of drug or alcohol abuse by defendant … . People v Brown, 2019 NY Slip Op 08746, Third Dept 12-5-19

 

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