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PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT).

The Second Department, ordering a new trial, determined prosecutorial misconduct deprived defendant of a fair trial:

… [D]uring summation, the prosecutor repeatedly engaged in improper conduct. For instance, the prosecutor denigrated the defense and disparaged the defendant, referring to his self-defense claim as “ridiculous,” “insulting,” and “ludicrous,” and informing the jury that the defendant would “tell you anything” in an effort to “sell you” a story. The prosecutor described the defendant as a “hothead” and a “punk” who could not “take [a] beating like a man” … . Moreover, the prosecutor impinged on the defendant’s right to remain silent before arrest by arguing that he could not have acted in self-defense during the altercation because he did not call the 911 emergency number … . Further, the prosecutor improperly invoked the jury’s sympathy for the complainant … , vouched for the complainant’s credibility … , and interjected her own sense of moral retribution with respect to the complainant’s entitlement to use physical force against the defendant, while misleading the jury as to the law on justification … . People v Dawson, 2019 NY Slip Op 08689, Second Dept 12-4-19

 

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BECAUSE THE B MISDEMEANOR CARRIES DEPORTATION AS A POTENTIAL PENALTY, DEFENDANT IS ENTITLED TO A JURY TRIAL (SECOND DEPT).

The Second Department reversed defendant’s conviction based upon a recent Court of Appeals case which held a defendant charged with a misdemeanor which carries deportation as a potential penalty is entitled to a jury trial:

… [T]he defendant, a noncitizen, is entitled to a jury trial under the Sixth Amendment of the United States Constitution because the charged crime of attempted assault in the third degree, a class B misdemeanor, carries a potential penalty of deportation (see People v Suazo, 32 NY3d 491). We note that because People v Suazo was decided after this matter was argued but before it was decided, the change of the law set forth therein therefore applies to the defendant … . Accordingly, we reverse the judgment of conviction and grant a new trial. People v Ahsan, 2019 NY Slip Op 08571, Second Dept 11-27-19

 

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PARKER WARNINGS WERE INADEQUATE BUT THE ERROR WAS NOT PRESERVED FOR APPEAL; HOWEVER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE ENHANCED SENTENCE; SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT).

The Third Department, vacating defendant’s sentence, determined the Parker warnings were inadequate. Although the error was not preserved for appeal, defense counsel was deemed ineffective for failing to challenge the enhanced sentence:

Defendant contends that Supreme Court erroneously imposed the enhanced sentence given that it did not specifically inform him as part of the Parker admonishment that a consequence of failing to appear for sentencing was the imposition of a greater sentence. … This claim is unpreserved inasmuch as the record does not reveal that defendant objected to the enhanced sentence or moved to withdraw his guilty plea … . The lack of preservation, however, is attributable to the deficiencies of defendant’s trial counsel, who represented him both during the plea proceedings and at sentencing. Counsel was ineffective in failing to challenge the enhanced sentence as there was no strategic reason for failing to do so, particularly in light of the clear omissions that were made by Supreme Court in administering the Parker admonishment … . In view of this, we excuse the lack of preservation and address the merits … . The record reveals that Supreme Court did not provide defendant with a sufficient Parker admonishment that included the sentencing consequences and that it imposed the enhanced sentence without affording him an opportunity to withdraw his plea. Accordingly, we vacate the sentence and remit the matter to Supreme Court to either impose the agreed-upon sentence or provide defendant with an opportunity to withdraw his guilty plea … . People v Barnes, 2019 NY Slip Op 53934, Third Dept 11-27-19

 

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CONSPIRACY COUNTS FATALLY FLAWED, NO OVERT ACT WAS ALLEGED, CONVICTIONS REVERSED, COUNTS DISMISSED (THIRD DEPT),

The Third Department, reversing defendant’s conspiracy convictions, determined the conspiracy counts were fatally flawed because no overt act was alleged:

“A person shall not be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy” (Penal Law § 105.20 [emphasis added] … ). Here, the two conspiracy counts neither allege that an overt act was committed nor include factual allegations describing such an act. There is no assertion that defendant took any action beyond agreeing “to engage in or cause the performance of a class B felony.” Accordingly, defendant’s convictions of conspiracy in the fourth degree under count 3 … and count 2 … must be reversed and the sentences imposed thereon vacated. Given that these two conspiracy counts were jurisdictionally defective and not subject to amendment (see CPL 200.50 [7] [a]; 200.70 [2] [a], [b] …), said counts are dismissed … . People v Mackie, 2019 NY Slip Op 53940, Third Dept 11-27-19

 

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AFTER AN INITIAL WAIVER OF HIS RIGHT TO REMAIN SILENT, DEFENDANT BECAME INCREASINGLY UNWILLING TO ANSWER QUESTIONS AND FINALLY SAID “MAYBE” HE SHOULD GET A LAWYER BECAUSE HE DIDN’T WANT TO INCRIMINATE HIMSELF, FROM THAT POINT ON THE INTERROGATION VIDEO SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defendant’s motion to suppress statements made after the assertion of his right to counsel should have been suppressed:

… [T]he People admitted into evidence a DVD video recording of the first 50 minutes and 55 seconds of defendant’s custodial interrogation. … A review of that video recording shows that defendant was advised of and acknowledged his Miranda rights in writing roughly 16 minutes into the custodial interrogation, after having made small talk with the detective questioning him. For the next 24 minutes, defendant openly and respectfully answered questions regarding the events that transpired earlier that morning, including whether he entered the apartment building, which he maintained that he did not. However, 40 minutes into the interview, defendant became increasingly quiet and less eager to engage in conversation. Indeed, the detective spoke for roughly 3½ minutes, with little to no contribution from defendant, and attempted to appeal to defendant “as a father.” Defendant asked if he would be at the police station all weekend, to which the detective said, ‘no.’ The detective then asked defendant to tell him what had happened, but he was met with silence, prompting him to ask again. In response, defendant stated, “maybe I should get a lawyer. I completely understand what you’re saying and I agree with you, but I don’t want to f**k myself.” In our view, defendant’s marked change in expression and demeanor at this stage of the interrogation, together with his reference to an attorney and his clear statement that he did not want to incriminate himself, constituted an unequivocal request for counsel and an exercise of his right to remain silent … . Thus, the video recording of the interrogation should have been stopped at 48 minutes and 48 seconds, just before defendant unequivocally invoked his right to counsel. Accordingly, County Court should have granted defendant’s motion to suppress all statements made thereafter. People v Harris, 2019 NY Slip Op 53943, Third Dept 11-27-19

 

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JURY SHOULD HAVE BEEN INSTRUCTED ON THE “INNOCENT POSSESSION OF A WEAPON” DEFENSE, CONVICTIONS REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s possession of a weapon convictions, determined the jury should have been instructed on the “innocent possession of a weapon” defense. Defendant testified the person who had just robbed him dropped the sweatshirt, which had a handgun in the pocket. According to the defendant’s testimony, just as defendant picked up the sweatshirt the police pulled up:

The Criminal Jury Instructions provide, in relevant part, that “[a] person has innocent possession of a weapon when he or she comes into possession of the weapon in an excusable manner and maintains possession, or intends to maintain possession, of the weapon only long enough to dispose of it safely. There is no single factor that by itself determines whether there was innocent possession. In making that determination, [the jury] may consider any evidence which establishes that the defendant had knowing possession of a weapon, the manner in which the weapon came into the defendant’s possession, the length of time the weapon remained in his/her possession, whether the defendant had an intent to use the weapon unlawfully or to safely dispose of it, the defendant’s opportunity, if any, to turn the weapon over to the police or other appropriate authority, and whether and how the defendant disposed of the weapon” (CJI2d[NY] Temporary and Lawful Possession).

Here, defendant’s testimony, if credited, provides sufficient facts from which the jury could find a lawful basis for defendant having temporarily and innocently possessed the subject pistol without having had any intent to use it in a dangerous manner or an opportunity to subsequently turn it over to police … . People v Mack, 2019 NY Slip Op 53930, Third Dept 11-27-19

 

CONVICTIONS OF INCLUSORY CONCURRENT COUNTS VACATED (SECOND DEPT).

The Second Department determined inclusory concurrent counts must be dismissed and the related convictions and sentences vacated:

… [A]s charged, the counts alleging driving while ability impaired by alcohol in violation of Vehicle and Traffic Law § 1192(1) and aggravated unlicensed operation of a motor vehicle in the second degree were inclusory concurrent counts of the count alleging aggravated unlicensed operation of a motor vehicle in the first degree (see CPL 300.30[4]; 300.40[3][b]; Vehicle and Traffic Law §§ 511[2][a][ii]; [3][a][i]; 1192). Accordingly, the defendant’s convictions of driving while ability impaired by alcohol in violation of Vehicle and Traffic Law § 1192(1) and aggravated unlicensed operation of a motor vehicle in the second degree and the sentences imposed thereon must be vacated, and those counts of the indictment dismissed. Under the circumstances of this case, the defendant’s contention that the mandatory surcharge and crime victim assistance fee must be reduced is more appropriately raised before the Supreme Court and, accordingly, we remit the matter to the Supreme Court … to consider this issue … . People v Delcid, 2019 NY Slip Op 08575, Second Dept 11-27-19

 

THE STREET ADDRESS OF THE PRIVATE RESIDENCE TO BE SEARCHED SUFFICIENTLY IDENTIFIED THE PROPERTY NOTWITHSTANDING THAT PUBLIC RECORDS INDICATED THREE RESIDENTIAL UNITS AT THAT ADDRESS; THE SEARCH WARRANT WAS VALID (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, over a two-justice dissent. determined that the description in the search warrant of the property to be searched was sufficient, notwithstanding that public records showed three residential units at that street address:

The dissent relies on allegations in defense counsel’s affirmation to argue for a more differentiated internal living structure. However, since an attorney’s affirmation is not evidence, the endeavor is unavailing. The dissent also relies on the affidavit submitted by defendant’s mother to counter the position of the People that the house was a private family residence. In view of the obvious likelihood of a compelling personal interest motivating the mother, we also decline to accept this as reliable evidence in the effort to controvert the warrant and the additional material in the record.

The only indication that the house legally could have been occupied as separate units was in the extrinsic materials supplied by defendant in moving to controvert the warrant, consisting of public records showing that the house contained three units. However, the fact that city records reflected that the house could be occupied as three units for tax or zoning purposes does not require a conclusion that it was. There likely are numerous legal two- or three-family residential houses that remain occupied by single families. The classifications of these houses relate to tax or land use matters that have no necessary bearing on the facial validity of a warrant. People v Duval, 2019 NY Slip Op 08542, First Dept 11-26-19

 

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IN AN IMPORTANT CLARIFICATION OF THE LAW, THE WAIVERS OF APPEAL IN TWO OF THE THREE APPEALS BEFORE THE COURT WERE DECLARED INVALID BECAUSE THE DEFENDANT WAS GIVEN THE ERRONEOUS IMPRESSION THAT ALL AVENUES OF APPEAL AND COLLATERAL RELIEF ARE CUT OFF BY THE WAIVER; IN ADDITION THE COURT OF APPEALS RULED THAT THE OMISSION OF THE APPROXIMATE TIME AND PLACE OF AN OFFENSE FROM A SUPERIOR COURT INFORMATION (SCI) OR A WAIVER OF INDICTMENT IS NOT A JURISDICTIONAL ERROR (CT APP).

The Court of Appeals, in a comprehensive opinion by Judge DiFiore, over several concurring and two dissenting opinions, determined that the waivers of appeal in two of the three appeals before the court were invalid. The opinion is an important clarification of the law and is too detailed to fairly summarize here. In a nutshell, a court should not give the defendant the impression that all appellate avenues, including the filing of a Notice of Appeal, collateral relief, and the availability of counsel, are cut off by the waiver of appeal. The court approved the Unified Court System’s Model Colloquy. In addition the Court of Appeals held that the omission of the approximate time and place of an offense from a superior court information (SCI) or a waiver of appeal is not a jurisdictional defect, an important clarification which contradicts many decisions in the lower courts:

… [T]he Model Colloquy for the waiver of right to appeal drafted by the Unified Court System’s Criminal Jury Instructions and Model Colloquy Committee neatly synthesizes our precedent and the governing principles and provides a solid reference for a better practice. The Model Colloquy provides a concise statement conveying the distinction missing in most shorthand colloquies — that: “[b]y waiving your right to appeal, you do not give up your right to take an appeal by filing a notice of appeal . . . within 30 days of the sentence. But, if you take an appeal, you are by this waiver giving up the right to have the appellate court consider most claims of error,[] and whether the sentence I impose, whatever it may be, is excessive and should be modified. As a result, the conviction by this plea and sentence will normally be final” (NY Model Colloquies, Waiver of Right to Appeal [emphasis added]). There is no mention made of an absolute bar to the taking of an appeal or any purported waiver of collateral or federal relief in the Model Colloquy or to the complete loss of the right to counsel to prosecute the direct appeal … .

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… “[A] purported error or insufficiency in the facts of an indictment or information to which a plea is taken does not constitute a nonwaivable jurisdictional defect and must be raised in the trial court” … . By parity of reasoning, the omission from the indictment waiver form of non-elemental factual information that is not necessary for a jurisdictionally-sound indictment is similarly forfeited by a guilty plea. As relevant here, the legislative history accompanying enactment of CPL article 195 makes plain that the purpose of the written waiver of indictment form is to ensure the defendant had notice of the charges upon which the prosecution by SCI would proceed … . Executed solemnly in open court, the waiver form must memorialize with sufficient specificity the charges for which a defendant waives prosecution by indictment. Here, the statutory notice was accomplished as the six counts of sexual abuse designated in the waiver form were identical to the crimes for which [defendant] was held for grand jury action and originally charged in the local court accusatory instruments. People v Thomas, 2019 NY Slip Op 08545, Ct App 11-26-19

 

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DEFENDANT, A PAIN MANAGEMENT PHYSICIAN WHO OPERATED A “PILL MILL,” WAS PROPERLY CONVICTED OF RECKLESS MANSLAUGHTER IN THE DEATHS OF TWO PATIENTS WHO DIED OF OPIOID OVERDOSE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a dissenting opinion, determined that defendant, a pain-management doctor, was properly convicted of manslaughter, recklessly causing the death of two persons [Haeg and Pappoid] to whom defendant prescribed opioids as part of a “pill mill” operation:

… [W]e conclude that the evidence was sufficient to support the jury’s finding that defendant acted recklessly. A rational juror could have concluded, based on a valid line of reasoning and permissible inferences, that defendant was aware of and consciously disregarded a substantial and unjustifiable risk that Haeg and Rappold would take more drugs than prescribed and would die by overdose, and, given defendant’s position as their medical doctor, that defendant’s conduct constituted a “gross deviation from the standard of conduct that a reasonable person would observe in the situation” (Penal Law § 15.05 [3]). * * *

The fact that Haeg and Rappold took the substances defendant prescribed for them in a greater dosage than prescribed is neither an intervening, independent agency nor unforeseeable. It is a direct and foreseeable result of defendant’s reckless conduct. As explained, viewing the evidence in the light most favorable to the People, a rational juror could conclude that defendant was aware of and consciously disregarded a substantial and unjustifiable risk that Haeg and Rappold would take the medications he prescribed at a higher dose than prescribed in order to attain a narcotic high rather than for legitimate pain management, and that they would die as a result. People v Stan XuHui Li, 2019 NY Slip Op 08544, Ct App 11-26-19

 

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