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DEFENSE COUNSEL SHOULD HAVE BEEN ALLOWED TWO CROSS-EXAMINE THE TWO POLICE OFFICERS WHO IDENTIFIED THE DEFENDANT AS THE SHOOTER ABOUT ALLEGATIONS OF THE OFFICERS’ DISHONESTY ARISING FROM OTHER COURT PROCEEDINGS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing defendant’s conviction, determined the trial court abused its discretion when it denied defense counsel’s requests to cross-examine the two police witnesses about prior acts of dishonesty. The two officers presented the only evidence which identified the defendant as the shooter in this attempted murder prosecution:

At the suppression hearing held before trial, that officer’s testimony supported defendant’s contention that, in preparing to testify in an unrelated federal criminal proceeding, he had misled the prosecutor in that case with respect to his involvement in a ticket-fixing scheme. … Defense counsel … was not permitted to explore what defense counsel characterized as that officer’s lies to the federal prosecutor regarding those activities.

… [T]he court limited exploration of that officer’s prior bad acts to his participation in the ticket-fixing scheme, and did not permit inquiry with respect to that officer’s deceit of the federal prosecutor.

That ruling was an abuse of discretion as a matter of law. * * *

We also conclude that the trial court abused its discretion as a matter of law in precluding cross-examination of both officers with respect to prior judicial determinations that addressed the credibility of their prior testimony in judicial proceedings. People v Rouse, 2019 NY Slip Op 08522, Ct App 11-25-19

 

PROBATION SENTENCE WHICH EFFECTIVELY EXTENDED THE PROBATION-PERIOD TO SIX YEARS WAS ILLEGAL (THIRD DEPT).

The Third Department determined that defendant’s probation sentence was illegal because it exceeded five years. Defendant’s probation was continued after the violation:

When a probation violation is sustained and the court continues the sentence, the court may extend the sentence for a period constituting the time from when a defendant is declared delinquent to when a determination is made on such delinquency, which in this case was from September 2016 to September 2017 (see CPL 410.70 [5]). The record reflects that defendant was originally sentenced to the maximum term of probation of five years (see Penal Law § 65.00 [3] [a] [i]), and County Court continued that sentence. Although the court was authorized to extend the sentence to account for the time between September 2016 and September 2017 (see CPL 410.70 [5]), by doing so in this case and having defendant’s probation end in 2022, it impermissibly expanded the term of probation beyond the statutory maximum. In other words, assuming that defendant served the whole term of probation, he would have been on probation from September 2015 to September 2016 and then again from September 2017 to September 2022, which is six years total. Given that the sentence imposed was illegal, the matter must be remitted for resentencing. People v Vanhyning, 2019 NY Slip Op 08451, Third Dept 11-21-19

 

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SANDOVAL RULING THAT DEFENDANT COULD BE CROSS-EXAMINED ABOUT A 1991 BURGLARY WAS ERROR; DEFENDANT HAD AN UNBLEMISHED RECORD FOR THE LAST 23 YEARS; ERROR DEEMED HARMLESS (THIRD DEPT).

The Third Department determined County Court should not have ruled defendant could be cross-examined about a 1991 burglary conviction in this assault, DWI and reckless driving case arising from a single car accident. The defendant’s record had been unblemished for 23 years, when he was released from prison. The defendant argued that, but for the Sandoval ruling, he would have testified. The Third Department found the error harmless, however:

In gauging whether a conviction is too remote, courts often consider the period of time during which the defendant was incarcerated, as County Court did here. For instance, in People v Wright (38 AD3d 1004 [2007], lv denied 9 NY3d 853 [2007]), this Court allowed inquiry about 20-year-old rape and robbery convictions where the defendant had been released from prison “only nine months prior to the present offense” … .

By comparison, here, defendant had been released from prison for 23 years, with an unblemished record leading up to this event. Under these circumstances, we conclude that County Court abused its discretion in allowing inquiry into the 1991 conviction, which was simply too remote … . People v Cole, 2019 NY Slip Op 08452, Third Dept 11-21-19

 

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BASED UPON EXECUTIVE LAW 63 AND TWO EXECUTIVE ORDERS ISSUED BY GOVERNOR CUOMO, THE ATTORNEY GENERAL HAS THE AUTHORITY TO INVESTIGATE AND CHARGE PERJURY ALLEGEDLY COMMITTED BY A DISTRICT ATTORNEY BEFORE A GRAND JURY CONVENED BY THE ATTORNEY GENERAL TO INVESTIGATE THE POLICE SHOOTING OF AN UNARMED CIVILIAN (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, reversing Supreme Court, determined that defendant, a district attorney, could be prosecuted by the Attorney General (OAG) for perjury allegedly committed by the district attorney before a grand jury convened by the Attorney General. The grand jury was convened to investigate whether the district attorney had engaged in misconduct when investigating the police shooting of an unarmed civilian. The authority of the Attorney General’s investigation and indictment is Executive Law 63 and two Executive Orders issued by Gov. Cuomo:

Executive Law § 63 (13) provides that the Attorney General “shall . . . [p]rosecute any person for perjury committed during the course of any investigation conducted by the [A]ttorney[][G]eneral pursuant to statute . . . [and] [i]n all such proceedings, the [A]ttorney[][G]eneral may appear . . . before any court or any grand jury and exercise all the powers and perform all the duties necessary or required to be exercised or performed in prosecuting any such person for such offense.” * * *

Although Executive Law § 63 (2) permits and requires the Governor to define — in the pertinent executive order — the scope of OAG’s authority regarding a particular investigation or prosecution … , the investigation is still conducted pursuant to that statute, albeit within a scope defined by the executive order. The Legislature, by enacting Executive Law § 63 (2), statutorily gave power to the Governor to call upon OAG to conduct investigations. That the statute and executive order must necessarily work in tandem does not diminish or eliminate the statute as a source of authority for OAG to conduct the investigation.

Here, as typical under these situations, OAG obtained authority to conduct the 2017 grand jury investigation through a combination of Executive Law § 63 (2) and EO163. The statute gives OAG power, but only when the Governor “require[s]” OAG to act … . Relatedly, the Governor would have no authority to give powers to the Attorney General — through an executive order or otherwise — without the Legislature having granted the Governor that ability. Indeed, the Court of Appeals has noted “that the Attorney[]General has no general authority to conduct [criminal] prosecutions and is without any prosecutorial power except when specifically authorized by statute” … . Therefore, we reject the conclusion that the phrase “pursuant to statute” excludes investigations conducted by OAG pursuant to an executive order issued by the Governor under the authority granted to him by statute, namely, Executive Law § 63 (2). OAG’s authority to investigate defendant was derived from that statute, at least indirectly through the conduit of an executive order issued thereunder. People v Abelove, 2019 NY Slip Op 08453, Third Dept 11-21-19

 

THE ATTEMPTED GANG ASSAULT CHARGE WAS A LEGAL IMPOSSIBILITY FOR TRIAL PURPOSES (FIRST DEPT).

The First Department, vacating defendant’s conviction, determined the charged crime was a legal impossibility:

“[A]ttempted gang assault in the second degree is a legal impossibility for trial purposes” … . “One cannot attempt to create an unintended result” … . People v Delacruz, 2019 NY Slip Op 08498, First Dept 11-21-19

 

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JUDGE SHOULD NOT HAVE REFUSED TO CONSIDER THE PEOPLE’S LATE RESPONSE TO DEFENDANT’S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS, NOTWITHSTANDING THE PEOPLE’S FAILURE TO ADHERE TO THE COURT’S MOTION TIMETABLE (FIRST DEPT).

The First Department, reversing Supreme Court, over a two-justice dissent, determined the trial judge should not have refused to consider a late response to the defense motion to dismiss on speedy trial grounds (CPL 30.30):

Clearly, trial courts have considerable discretion in administering litigation and managing their dockets … . We agree with the dissent that parties are obligated to honor court-imposed deadlines. However, it is also axiomatic that justice is best served when cases are decided on the merits. …

Here, the People sought to file their opposition papers on the decision date, some 15 days after the due date. This was not the situation in People v Cole, 73 NY2d 957 [1989], which was cited by the motion court, where the People failed to submit any opposition papers. Further, there is nothing in the record to suggest that there was any history of dilatory conduct or a blatant disregard of court directives on the part of the People. Rather, this appears to be an isolated lapse.

While we are certainly cognizant of the frustration occasioned by the failure of the People to adhere to the motion schedule, summarily granting the defense motion to dismiss without considering the merits of the response the People had prepared was improper. As the People argue, the charges here are serious. Defendant was indicted on numerous weapons possession charges. Dismissal of those charges without a full and complete determination of the motion to dismiss on its merits was unduly harsh. Less drastic remedies, including charging the People for the 15-day delay, were available … . People v Lora, 2019 NY Slip Op 08478, First Dept 11-21-19

 

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MOTION FOR SEVERANCE SHOULD HAVE BEEN GRANTED; DEFENDANT AND CO-DEFENDANT EACH CLAIMED THE OTHER POSSESSED THE COCAINE FOUND IN THE CAR AFTER A TRAFFIC STOP (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defendant’s (Maldonaldo’s) trial should have been severed from the co-defendant’s trial;

… [W]e agree with defendant that his motion for a separate trial should have been granted (see CPL 200.40 [1]). “[S]everance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer [the] defendant’s guilt” … . Through counsel and by testifying on his own behalf, Maldonado denied knowledge of the cocaine’s existence in his car and instead pointed the finger at defendant. Specifically, he testified that defendant had brought the Bugles chip bag into the car, that he did not know the contents of that bag, that he would not have allowed the bag in his car if he did and that defendant had his hands in the area where the bag was later discovered when the traffic stop was initiated. In contrast, defendant argued — through counsel and without testifying — that he lacked knowledge of the cocaine’s presence in the car and that the cocaine must have belonged to Maldonado, given that it was found in Maldonado’s car and that he had a criminal history involving drug possession and distribution — a subject brought out during cross-examination of Maldonado. By seeking to implicate each other, defendant’s and Maldonado’s defenses were clearly antagonistic, mutually exclusive and irreconcilable, and created “a significant possibility that the jury unjustifiably concluded by virtue of the conflict itself that both defenses were incredible and gave undue weight to the [People’s] evidence” … . People v Colon, 2019 NY Slip Op 08449,Third Dept 11-21-19

 

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SUPREME COURT PROPERLY DETERMINED THE COLLATERAL SUPPORTING A POSTED BAIL BOND WAS INSUFFICIENT TO ENSURE THE ACCUSED’S RETURN TO COURT, APPELLATE DIVISION REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, reversing the Appellate Division, determined that Supreme Court did not abuse its discretion when it reviewed the collateral for a bail bond which had been posted by an insurer and found the collateral insufficient:

“Following the posting of a bail bond,” CPL 520.30 (1) permits a court to “conduct an inquiry for the purpose of determining,” among other things, “the value and sufficiency of any security offered[] and whether any feature of the undertaking contravenes public policy.” The statute also allows inquiry “into other matters appropriate to the determination, which include but are not limited to” six enumerated factors (CPL 520.30 [1]). For instance, the court has broad discretion to examine “[t]he background, character and reputation of any person who has indemnified or agreed to indemnify an obligor upon the bond” (CPL 520.30 [1] [d]) and the source of any property that will be used as indemnification as well as “whether any such money or property constitutes the fruits of criminal or unlawful conduct” … . * * *

The insurance company … has a financial incentive in obtaining a defendant’s release on bail so that it may retain its premium. This incentive is separate from the insurance company’s interest in securing the defendant’s return to court to avoid forfeiting its pledged security. The court, on the other hand, is concerned only with the defendant’s continued appearances.

Supreme Court … correctly interpreted the statute and did not abuse its discretion when it disapproved the insurance company bail bond package on public policy grounds, specifically that the limited collateral pledged failed to adequately ensure [the accused’s] return to court … . People ex rel. Prieston v Nassau County Sheriff’s Dept., 2019 NY Slip Op 08447, CtApp 11-21-19

 

PLEA TO ASSAULT FIRST WAS DEFECTIVE BECAUSE THE INTENT TO INFLICT SERIOUS PHYSICAL INJURY WAS NOT STATED IN THE ALLOCUTION (SECOND DEPT).

The Second Department, reversing the judgment, determined the plea to assault first was defective because the intent to inflict serious physical injury was not stated in the allocution:

During the plea colloquy, the Supreme Court stated, and the defendant admitted, the elements of assault in the first degree as including an intent to inflict physical injury and conduct which in fact causes physical injury. However, the crime of assault in the first degree, as defined in Penal Law § 120.10(1), requires an intent to inflict serious physical injury and conduct which in fact causes serious physical injury. Under the circumstances, since the defendant admitted harboring an intent and inflicting an injury other than those required for the commission of assault in the first degree, the defendant’s plea of guilty must be vacated, as her allocution failed to make out the requisite elements of that crime … . People v Steele-Warrick, 2019 NY Slip Op 08428, Second Dept 11-20-19

 

PROBATION ONLY IS NOT A LEGAL SENTENCE FOR ASSAULT SECOND; ORDER OF PROTECTION SHOULD NOT HAVE BEEN ISSUED IN FAVOR OF A PERSON WHO WAS NOT A VICTIM OR WITNESS (SECOND DEPT).

The Second Department determined the defendant could not be sentenced to probation only for assault and Supreme Court should not have issue an order of protection in favor of a person who was not a victim or a witness:

Penal Law § 60.05(5) mandates that a person convicted of the class D violent felony offense of assault in the second degree be sentenced to a term of imprisonment … . Such a sentence could consist of a determinate term of imprisonment of at least two years and no more than seven years … , or alternatively, a definite term of imprisonment of one year or less under Penal Law § 70.00(4) or an intermittent term of imprisonment under Penal Law § 85.00 … . Moreover, a split sentence of imprisonment and probation is also authorized … .

Consequently, as the defendant argues and the People concede, the defendant’s sentence of a term of probation only with respect to his conviction of assault in the second degree was illegal, and the sentence must be vacated and the matter remitted to the Supreme Court, Richmond County for resentencing or to allow the defendant to withdraw his plea of guilty … .

The defendant, a first time felony offender, requests that his sentence be equivalent to the amount of time that he has already served in connection with this conviction. Such a sentence would be a legal sentence if the sentencing court, in considering the circumstances of the crime and the defendant’s character, deems such a sentence to be proper … .

Further, as the defendant argues and the People concede, the Supreme Court had no authority to issue an order of protection in favor of an individual who was neither a victim of nor a witness to the crime to which the defendant pleaded guilty … . People v Ferguson, 2019 NY Slip Op 08424, Second Dept 11-20-19

 

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