You are here: / Criminal Law

FOR CAUSE CHALLENGES TO TWO JURORS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the defense for cause challenges to two jurors should have been granted in this rape prosecution:

During voir dire, when counsel asked prospective juror No. 2 if she thought that this was the right case for her to sit on, she responded, “I’m not sure. I teach youth. I have five children. That’s where my sympathy would lie. . . . [T]he victim was probably about 20 years old. I would have a tendency to be biased in that direction.” Counsel then asked if those thoughts might make it difficult for prospective juror No. 2 to weigh the evidence. She responded, “I don’t think so. I think I could be biased. I’m sorry, unbiased. I do lean toward sympathy with the youth. That’s where my life is.” She then mentioned that she was very involved in church youth organizations and teaches ninth and tenth grade girls.

Prospective juror No. 3 acknowledged that he was having a hard time listening to the subject matter of the case during voir dire because he has four younger sisters and a daughter. When asked if he could “get beyond the allegations and really weigh the evidence” or whether that might be a problem, he responded, “I’d like to say I could be impartial, but until everything comes out it’s difficult to say.” No further questions were asked of these potential jurors by counsel or Supreme Court.

Supreme Court denied defendant’s challenges to these prospective jurors for cause, asserting that each had said he or she could be fair and impartial. Although prospective juror No. 2 did say she could be unbiased, she again stated immediately thereafter that she leaned toward sympathy with youth and worked with young girls, indicating an inclination toward the young female victim. Prospective juror No. 3 made an equivocal statement regarding his partiality. As neither prospective juror unequivocally stated that he or she could be impartial, the court should have posed questions to rehabilitate them by obtaining such assurances or, if rehabilitation was not possible, excused the prospective jurors … . People v Jackson, 2019 NY Slip Op 07442, Third Dept 10-17-19

 

, ,

A SUPERIOR COURT INFORMATION CANNOT INCLUDE A JOINABLE OFFENSE WHICH IS GREATER IN DEGREE THAN THE OFFENSE FOR WHICH THE DEFENDANT WAS HELD FOR THE ACTION OF THE GRAND JURY (THIRD DEPT).

The Third Department, resolving a question of first impression, determined that a Superior Court Information (SCI) is jurisdictionally defective if it charges a joinable offense which is greater in degree than the offense for which the defendant was held for the action of the grand jury. The jurisdictional question survives the guilty plea, the failure to preserve and the waiver of appeal:

… [T]he constitutional waiver provision makes no reference to joinable offenses, providing only that prosecution by an SCI is limited to an offense or offenses for which a person is ‘held for the action of a grand jury upon a charge for such an offense’ (NY Const, art I, § 6 … ). A literal interpretation of the phrase ‘any offense or offenses properly joinable therewith’ in CPL 195.20 would permit the circumvention of this constitutional imperative by the simple expedient of permitting the inclusion of joinable offenses in a higher degree or grade that were never charged in a felony complaint. Such a statutory interpretation is inconsistent with and undermines the protections provided in NY Constitution, article I, § 6. It is well settled ‘that the Legislature in performing its law-making function may not enlarge upon or abridge the Constitution’ … , and that “courts must avoid, if possible, interpreting a presumptively valid statute in a way that will needlessly render it unconstitutional” … .

Applying these principles, we conclude that a joinable offense may not be included in a waiver of indictment and SCI unless that offense, or a lesser included offense, was charged in a felony complaint and the defendant was therefore held for the action of a grand jury upon that charge … . People v Coss, 2019 NY Slip Op 07445, Third Dept 10-17-19

 

,

DEFENDANT’S PLEA TO A PROBATION VIOLATION WAS NOT VOLUNTARY AND MUST BE VACATED (THIRD DEPT). ​

The Third Department, reversing County Court, determined defendant’s plea to a probation violation was involuntary and must be vacated:

The record reflects that the People’s final plea offer came with a prison sentence of 1½ years followed by six years of PRS. When defendant indicated that he wanted to admit to the probation violation and argue for a more lenient sentence, County Court stated that it could not “override” the recommended sentence unless defendant declined the offer and proceeded to a hearing. The court further told defendant that, if he took the offer, it was “up to the People” as to whether a lesser sentence could be considered. The People then turned down defendant’s proposal to cap his sentencing exposure at 1½ years in prison and stated that they would recommend a higher sentence if defendant rejected the offer and were found guilty following a hearing. Defendant thereafter accepted the offer.

The foregoing reflects, and the People concede, that County Court abdicated its responsibility to carefully consider all facts available at the time of sentencing and fashion an appropriate sentence …. Inasmuch as the proceedings were also marred by the People’s admittedly inappropriate threat to seek a harsher sentence if defendant rejected the offer and was found guilty after a hearing, however, the plea itself was involuntary. Thus, defendant is entitled to vacatur of his plea … , People v Roberts, 2019 NY Slip Op 07448, Third Dept 10-17-19

,

THE POLICE DID NOT HAVE A REASONABLE SUSPICION DEFENDANT WAS CONCEALING DRUGS ON HIS PERSON WHEN THEY CONDUCTED A STRIP SEARCH, DRUGS SEIZED DURING THE STRIP SEARCH SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT). ​

The Third Department, reversing defendant’s drug-possession conviction, in a full-fledged opinion by Justice Mulvey, determined that the police did not have a reasonable suspicion defendant was concealing drugs on his person at the time of the strip search. The drugs found in the search should have been suppressed:

Strip searches “cannot be routinely undertaken as incident to all drug arrests,” but must be based on “specific and articulable facts which, along with any logical deductions, reasonably prompted the intrusion” … . Courts consider several factors when determining whether, under the totality of the circumstances, the police had reasonable suspicion to conduct “a strip search, including the defendant’s excessive nervousness, unusual conduct, information showing pertinent criminal propensities, informant’s tips, loose-fitting or bulky clothing, an itinerary suggestive of wrongdoing, incriminating matter discovered during a less intrusive search, lack of employment, indications of drug addiction, information derived from others arrested or searched contemporaneously, and evasive or contradictory answers to questions” … . * * *

Based on the information that Tibbs planned to purchase cocaine from Pinkney, made the round trip to New York City and routinely went to defendant’s apartment after such purchases to cook the powder cocaine into crack cocaine, along with other evidence of the conspiracy that had been ongoing for months, the officers had probable cause to believe that defendant had committed a conspiracy offense.

The evidence at the hearing did not, however, support a strip search. The officers knew that Tibbs had purchased a large quantity of cocaine and that drug traffickers frequently secrete narcotics on their person. Yet they could not identify the other people who were in the vehicle when it returned from New York City, leaving no proof that defendant had accompanied Tibbs to purchase the drugs. People v Turner, 2019 NY Slip Op 07443, Third Dept 10-17-19

 

,

FATHER’S PETITION FOR CUSTODY OR PARENTING TIME SHOULD NOT HAVE DISMISSED BASED UPON AN ORDER OF PROTECTION ISSUED IN A CRIMINAL MATTER BEFORE THE CHILD WAS BORN (THIRD DEPT).

The Third Department, reversing Family Court, determined an order of protective issue in a criminal proceeding before the child was born did not prohibit contact between the child and father. Father’s petition seeking custody and/or parenting time should not have been dismissed on that ground:

At the initial appearance on the petition, Family Court stated that the order of protection had been issued in a criminal matter and that it barred the putative father from having any direct or indirect contact with the mother. The mother then moved to dismiss the petition, arguing that the order of protection rendered the petition moot. Family Court agreed and granted the motion. The putative father appeals.

The order of protection at issue — a copy of which is not in the record but the terms of which we take judicial notice — was issued prior to the child’s birth and does not bar the putative father from having contact with the child. It is not, as a result, fatal to the putative father’s petition … . Remittal is therefore required for Family Court to consider whether an order of filiation should be issued (see Family Ct Act § 564) and, if so, whether contact with the putative father would be in the best interests of the child and could be accomplished without contravening the terms of the order of protection … . Matter of Justin M. v Valencia N., 2019 NY Slip Op 07453, Third Dept 10-17-19

 

,

BRADY MATERIAL WHICH CONTRADICTED THE PEOPLE’S THEORY OF THE CASE SHOULD HAVE BEEN PROVIDED TO THE DEFENSE, CONVICTION REVERSED (CT APP).

The Court of Appeals, reversing defendant’s conviction, determined that defendant should have been provided with exculpatory (Brady) evidence. Eyewitnesses to the assault made statements that there were two perpetrators, which directly contradicted the People’s theory that defendant was the sole perpetrator:

The first two prongs of Brady being satisfied, our inquiry thus turns to whether the suppressed information was material. “In New York, the test of materiality where . . . the defendant has made a specific request for the evidence in question is whether there is a reasonable possibility’ that the verdict would have been different if the evidence had been disclosed” … . … [B]oth witnesses’ statements, if true, would have directly contradicted the People’s theory of the case that defendant was the sole perpetrator. Although the People presented other evidence of defendant’s guilt, the only witness who identified defendant at trial initially told the police that he did not see the perpetrator’s face. Considering that the nightclub owner provided the police with the name of another possible assailant, and based on the other evidence presented at trial, it is clear that access at least to him could have allowed defendant to develop additional facts, which in turn could have aided him in establishing additional or alternative theories to support his defense. Given the substance of the nightclub owner’s statements and the nature of the People’s case, we cannot say—under our less demanding standard—that there was no “reasonable possibility” that the defense’s investigation of the witnesses would not have affected the outcome of defendant’s trial … . People v Rong He, 2019 NY Slip Op 07477, CtApp 10-17-19

 

, ,

RESPONDENT, WHO HAD BEEN ADJUDICATED A JUVENILE DELINQUENT, WAS NOT GIVEN SUFFICIENT INFORMATION BEFORE ADMITTING TO A PROBATION VIOLATION, THE PETITION WAS DISMISSED; THE ERROR DID NOT REQUIRE PRESERVATION AND THE APPEAL WAS NOT MOOT BECAUSE OF THE COLLATERAL CONSEQUENCES OF A JUVENILE DELINQUENCY ADJUDICATION (THIRD DEPT).

The Third Department, dismissing the petition, determined that respondent, who had been adjudicated a juvenile delinquent, was not provided sufficient information before admitting to a probation violation. Because of the collateral consequences of a “juvenile delinquent” adjudication, the appeal is not moot, even though the period of respondent’s custody and care under the Office of Children and Family Services had expired. In addition, the error did not required preservation:

Initially, we note that preservation of this claim was not required … . Family Ct Act § 321.3 (1) requires a court to advise a respondent of his or her right to a fact-finding hearing and to question both the respondent and his or her parent, if present, as to whether the respondent committed the act contained in the admission, whether the respondent is voluntarily waiving his or her right to a fact-finding hearing, and whether the respondent is aware of the possible specific dispositional orders … . The May 2018 allocution did not meet these statutory requirements. Although Family Court did advise respondent, to some extent, regarding his rights, the failure to meet the statutory mandates rendered the allocution inadequate. Critically, although respondent’s mother was present, the court failed to question her regarding respondent’s waiver of the fact-finding hearing … or about his failure to attend counseling. Instead, respondent was merely asked whether he had sufficient time to speak to his parents about the allocution … . Moreover, the court did not determine whether respondent and his mother understood the possible specific dispositional orders that might result from his allocution … . Although it was stated that placement outside the home was an available option, the court did not “ascertain whether [respondent] and his parent[] were aware of the full extent of such a disposition” … . Matter of Elijah X., 2019 NY Slip Op 07464, Third Dept 10-17-19

 

,

DNA EVIDENCE TO DEMONSTRATE THE COMPLAINANT’S SEXUAL HISTORY PROPERLY EXCLUDED AS A VIOLATION OF THE RAPE SHIELD LAW (SECOND DEPT).

The Second Department determined Supreme Court correctly refused to allow defendant to present DNA evidence to demonstrate the complainant’s sexual history in this sexual offense case:

We agree with the Supreme Court’s determination to preclude the introduction of certain DNA evidence at trial. Introducing evidence of additional DNA donors not linked to the defendant for the purpose of demonstrating the complainant’s sexual history with persons other than the defendant falls “squarely within the ambit of the Rape Shield Law, which generally prohibits [e]vidence of a victim’s sexual conduct’ in a prosecution for a sex offense under Penal Law article 130 (CPL 60.42) because such evidence . . . serves only to harass the alleged victim and confuse the jurors'” … . Moreover, the evidence sought to be admitted was not relevant to any defense … . Contrary to the defendant’s contention, introducing the evidence through a witness other than the complainant does not render the Rape Shield Law inapplicable … . People v Hubsher, 2019 NY Slip Op 07416, Second Dept 10-16-19

 

,

DEFENDANT’S WAIVER OF APPEAL DID NOT REMAIN VALID AFTER DEFENDANT PLED GUILTY TO A DIFFERENT CRIME WHEN THE INITIAL SENTENCE PROMISE COULD NOT BE FULFILLED (SECOND DEPT).

The Second Department determined defendant’s waiver of appeal was invalid because his consent to the waiver was not renewed after he pled to a different crime after the initial sentence promise could not met:

… [T]he Supreme Court was unable to fulfill its sentencing commitment because the sentence it had promised was illegal … . Although the defendant ultimately agreed to plead guilty to a different crime in return for a different sentence, the modification of the material terms of the original plea agreement “vitiated defendant’s knowing and intelligent entry of the waiver of appeal”… . Under such circumstances, “it was incumbent on the court to elicit defendant’s continuing consent to waive his right to appeal” … . Since the court did not obtain the defendant’s continuing consent to waive his right to appeal after the material terms of the original plea agreement were changed, the defendant is not precluded from arguing that the sentence imposed was excessive … . People v Ellison, 2019 NY Slip Op 07413, Second Dept 10-16-19

 

, ,

DEFENSE COUNSEL’S QUESTIONS WHETHER COMPLAINANTS HAD HIRED LAWYERS AND HAD SUED DEFENDANT-TEACHER AND THE SCHOOL DISTRICT IN THIS CHILD SEX ABUSE CASE DID NOT OPEN THE DOOR TO ALL EVIDENCE OF DEFENDANT’S ALLEGED PRIOR SEXUAL ABUSE OF CHILDREN, CONVICTION REVERSED BECAUSE DEFENDANT WAS DEPRIVED OF A FAIR TRIAL; JUDGE SHOULD NOT HAVE PARTICIPATED IN A READBACK OF TESTIMONY (SECOND DEPT).

The Second Department, reversing defendant’s conviction in this child sex abuse prosecution, determined that the trial court should not have allowed the prosecution to present all evidence of defendant’s alleged prior sexual abuse of children after defense counsel asked complainants whether they had hired a lawyer and were suing the defendant-teacher and the school district based upon defendant’s alleged sexual abuse of children. Re-direct should have been limited to only the evidence necessary to clarify and explain the reasons for the witness’s hiring a lawyer and bringing a lawsuit. The Second Department also noted that the trial judge should have participated in the readback of testimony and the harmless error analysis is not applicable:

… [D]efense counsel asked questions regarding the civil actions in an attempt to impeach credibility and establish that a motivation for some of the complainants’ testimony against the defendant was monetary gain or a pecuniary interest. This line of inquiry did not open an unfettered passageway for the People to elicit extensive and prejudicial evidence regarding alleged uncharged complaints. The extraneous testimony of alleged uncharged complaints did not serve to explain or clarify whether the civil actions provided certain complainants with a financial incentive to testify.

Moreover, the admission of evidence of alleged uncharged complaints violated the basic principle underlying Molineux and its progeny that “a criminal case should be tried on the facts and not on the basis of a defendant’s propensity to commit the crime charged …”. …

The Court of Appeals has explained that “if in any instance, an appellate court concludes that there has been such error of a trial court, such misconduct of a prosecutor, such inadequacy of defense counsel, or such other wrong as to have operated to deny any individual defendant his fundamental right to a fair trial, the reviewing court must reverse the conviction and grant a new trial, quite without regard to any evaluation as to whether the errors contributed to the defendant’s conviction” … . People v Watts, 2019 NY Slip Op 07426, Second Dept 10-16-19

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy