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THE MAJORITY DID NOT RULE OUT THE POSSIBILITY THAT THE NON-DEADLY-FORCE JUSTIFICATION-DEFENSE JURY INSTRUCTION COULD BE APPROPRIATE IN A SECOND DEGREE ASSAULT CASE, BUT HELD THAT GIVING THE DEADLY-FORCE JUSTIFICATION-DEFENSE INSTRUCTION WAS NOT ERROR HERE (CT APP).

The Court of Appeals, over a concurrence, determined the jury was properly instructed on the “deadly force” justification defense on the assault second count. Defendant was convicted of beating the victim with a belt with a metal buckle, which was deemed a “dangerous instrument.” The defendant argued he was entitled to the “non-deadly” or “ordinary” physical force justification-defense jury instruction:

The Penal Law defines “[d]eadly physical force” as “physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury” (Penal Law § 10.00 [11]). A “[d]angerous instrument” is defined as “any instrument, article, or substance . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury” (id. § 10.00 [13]). Defendant argues that the statutory definitions, while similar, are not identical and that a jury may convict a defendant of a crime containing a dangerous instrument element without necessarily concluding that the defendant used deadly physical force. …

There is no per se rule regarding which justification instructions are appropriate based solely on the fact that the defendant has been charged with second-degree assault with a dangerous instrument. Instead, as in every case where the defendant requests a justification charge, trial courts must view the record in the light most favorable to the defendant and determine whether any reasonable view of the evidence would permit the factfinder to conclude that the defendant’s conduct was justified, and, if so, which instructions are applicable … .

Under the particular circumstances of this case, the jury instruction does not require reversal … . Viewing the record in the light most favorable to defendant, there is no reasonable view of the evidence that defendant merely “attempted” or “threatened” to use the belt in a manner readily capable of causing death or serious physical injury … but that he did not “use” it in that manner … . People v Vega, 2019 NY Slip Op 03530, CtApp 5-7-19

 

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BECAUSE THE DEFENDANT DREW HIS GUN BEFORE THE UNARMED VICTIM “SWIPED” AT IT, THE DEFENDANT WAS THE INITIAL “DEADLY FORCE” AGGRESSOR AND WAS NOT ENTITLED TO THE JUSTIFICATION-DEFENSE JURY INSTRUCTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the Appellate Division, determined defendant (Mr. Brown) was not entitled to the jury instruction on the justification defense. The Court of Appeals found that the defendant was the initial “deadly force” aggressor because he was wielding the gun before the unarmed victim (Mr. Cabbagestalk) “swiped” at the gun:

Mr. Wolf [an eyewitness who testified at trial] said he heard the older man [defendant] say, “Stay away from my daughter, don’t come around here.” Mr. Cabbagestalk responded, “you can’t tell me where to be.” According to Mr. Wolf, Mr. Cabbagestalk was “getting in the older guy’s face a little bit,” “trying to back him down,” and Mr. Marshall [who was with Mr. Cabbagestalk] was trying to calm Mr. Cabbagestalk down.

Mr. Wolf testified … he observed Mr. Cabbagestalk throwing a few punches at Mr. Brown but that he believed those punches did not reach Mr. Brown. Mr. Wolf also testified that Mr. Brown was holding a gun slightly “above waist high” and “pointed away from him.” Mr. Cabbagestalk then “swiped” at Mr. Brown’s gun …  … [A]t some point before Mr. Cabbagestalk’s last swing or swipe, Mr. Cabbagestalk said, “if you going to pull a gun out, you got to use it.” Mr. Brown did just that, shooting Mr. Cabbagestalk in the chest.  * * *

Because Mr. Brown’s drawing of his gun under these circumstances constituted the imminent threat of deadly physical force, the “initial aggressor” rule bars Mr. Brown from claiming justification unless a reasonable jury could conclude either: (1) that Mr. Brown withdrew from the encounter after drawing his gun, communicated that withdrawal to Mr. Cabbagestalk, and Mr. Cabbagestalk thereafter used or threatened imminent use of deadly physical force (Penal Law § 35.15[1][b]), or (2) that Mr. Cabbagestalk himself was the initial “deadly force” aggressor. No reasonable jury could reach either conclusion based on the evidence in this case, even viewing the evidence in the light most favorable to Mr. Brown (as we must). People v Brown, 2019 NY Slip Op 03529, CtApp 5-7-19

 

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THE TRIAL JUDGE’S NEGOTIATION OF A PLEA DEAL DIRECTLY WITH THE CO-DEFENDANT, IN RETURN FOR THE CO-DEFENDANT’S ESSENTIAL TESTIMONY IDENTIFYING THE DEFENDANT AS ONE OF THE ROBBERS DEPICTED IN A VIDEO, DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a concurrence, reversing the Appellate Division, determined  the trial judge had deprived defendant of a fair trial by negotiating a plea agreement directly with the co-defendant in return for the co-defendant’s testimony against the defendant. Although the defendant and co-defendant in this robbery case were captured on video, their faces were covered. At trial the co-defendant identified the defendant as the person depicted in the video:

It is undisputed that, as the Appellate Division concluded, the trial court “personally negotiate[ed] and enter[ed] into a quid pro quo cooperation agreement with the codefendant whereby the court promised to sentence the codefendant within a specific range in exchange for his testimony against defendant” (151 AD3d at 1639). In so doing, the trial court improperly “assume[d] the advocacy role traditionally reserved for counsel” … and ventured from its own role as a neutral arbiter “[s]tationed above the clamor of counsel or the partisan pursuit of procedural or substantive advantage” … . Indeed, whatever its subjective intentions, the trial court effectively procured a witness in support of the prosecution by inducing the codefendant to testify concerning statements the codefendant made to police—which identified defendant as one of the robbers—in exchange for the promise of a more lenient sentence. Significantly, by tying its assessment of the truthfulness of the codefendant’s testimony to that individual’s prior statements to police, the trial court essentially directed the codefendant on how the codefendant must testify in order to receive the benefit of the bargain … . Under these circumstances, the trial court’s conduct “conflicted impermissibly with the notion of fundamental fairness” … . That is, by assuming the function of an interested party and deviating from its own role as a neutral arbiter, the trial court denied defendant his due process right to “[a] fair trial in a fair tribunal” (In re Murchison, 349 US at 136). This error is not subject to harmless error review and requires reversal … . People v Towns, 2019 NY Slip Op 03527, CtApp 5-7-19

 

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JUDGE’S SUA SPONTE ASSESSMENT OF POINTS ON A GROUND OF WHICH THE DEFENDANT WAS NOT NOTIFIED VIOLATED DEFENDANT’S DUE PROCESS RIGHT TO NOTICE AND AN OPPORTUNITY TO RESPOND (FOURTH DEPT).

The Fourth Department, reversing County Court’s SORA risk assessment, determined that the judge’s assessing points on a ground of which defendant was not given prior notice was a violation of due process. The issue was considered on appeal in the interest of justice (there was no objection at the SORA hearing):

“The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment” . As a result, “[a] defendant has both a statutory and constitutional right to notice of points sought to be assigned” … , and “a court’s sua sponte departure from the Board’s recommendation at the hearing, without prior notice, deprives the defendant of a meaningful opportunity to respond” … . Here, neither the Board nor the People requested the assessment of points for a continuing course of sexual misconduct on the ground that defendant engaged in three or more acts of sexual contact with the victim over a period of at least two weeks … . At the conclusion of the SORA hearing, however, the court proceeded to assign additional points under that category on the ground that the grand jury testimony of the victim’s mother established that there was a third uncharged incident of sexual contact. Defendant was never provided any notice that points would be assessed as a result of a third uncharged incident and thus was not given a meaningful opportunity to respond to the court’s risk level assessment. People v Chrisley, 2019 NY Slip Op 03505, Fourth Dept 5-3-19

 

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ALTHOUGH THE ARGUMENT WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE, DEFENDANT INDICATED HE DID NOT UNDERSTAND THE NATURE OF THE CRIME TO WHICH HE PLED GUILTY BUT THE JUDGE MADE NO FURTHER INQUIRY, THE PLEA WAS THEREFORE NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction in the interest of justice, determined defendant’s guilty plea was not knowingly, intelligently and voluntarily entered:

We agree with defendant that his plea was not knowingly, intelligently, and voluntarily entered … . Although defendant failed to preserve that contention for our review because “his motion to withdraw his plea was made on grounds different from those advanced on appeal” … , and this case does not fall within the “narrow exception” to the preservation rule … , we exercise our power to review defendant’s contention as a matter of discretion in the interest of justice … .

“A trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences” … . After Supreme Court accepted defendant’s guilty plea, defendant stated that he was confused by the plea proceeding, and the court asked him if he had any questions about the consequences of pleading guilty. Defendant then made a series of remarks from which it became apparent that he did not understand the nature of the crime to which he had entered his guilty plea. Although defendant was “obviously confused,” the court made no further inquiry whether he understood the plea or its consequences … . People v Hector, 2019 NY Slip Op 03504, Fourth Dept 5-3-19

 

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THERE WAS LEGALLY INSUFFICIENT EVIDENCE DEFENDANT SHARED THE CO-DEFENDANT’S INTENT TO KILL, IN ADDITION, DEFENDANT’S CONVICTION UNDER AN ACCESSORIAL LIABILITY THEORY WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, determined there was legally insufficient evidence that the defendant shared the co-defendant’s intent to kill, and the verdict was against the weight of the evidence. The co-defendant walked up to the defendant on the street and shot him. The defendant was present at the scene and picked the co-defendant up and drove away after the shooting. The defendant was convicted under an accomplice or accessorial liability theory:

A “defendant’s presence at the scene of the crime, alone, is insufficient for a finding of criminal liability” … . Indeed, evidence that a defendant was at the crime scene and even assisted the perpetrator in removing evidence of that crime is insufficient to support a defendant’s conviction where the People fail to offer evidence from which the jury could rationally exclude the possibility that the defendant was without knowledge of the perpetrator’s intent … . “An aider and abettor must share the intent or purpose of the principal actor, and there can be no partnership in an act where there is no community of purpose”… . We have no difficulty concluding that there is a valid line of reasoning and permissible inferences by which the jury could have found that defendant intentionally aided the codefendant after the murder, but we cannot conclude that there is legally sufficient evidence to support the inference that defendant shared the codefendant’s intent to kill the victim … . The People offered no motive for the crime … , and the evidence indicating that defendant was staring at the victim 40 minutes before the shooting and that defendant may have dropped off the codefendant at the bar prior to the shooting was plainly insufficient to establish that defendant was aware of and shared the codefendant’s intent to kill the victim … . * * *

Even assuming, arguendo, that the evidence is legally sufficient, viewing the evidence in light of the elements of the crime as charged to the jury … , we further conclude that the verdict is against the weight of the evidence … . A review of the weight of the evidence requires us to first determine whether an acquittal would not have been unreasonable … . If so, we must ” weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” … . We conclude that an acquittal would not have been unreasonable in this case and, based on the weight of the evidence, we further conclude that the jury was not justified in finding defendant guilty beyond a reasonable doubt. People v Mcdonald, 2019 NY Slip Op 03494, Fourth Dept 5-3-19

 

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HAVING DEFENDANT WAIT WITH TWO POLICE OFFICERS WHILE A THIRD TOOK HIS ID TO AN APARTMENT TO VERIFY DEFENDANT’S CLAIM HE WAS VISITING A FRIEND IN THE APARTMENT WAS NOT JUSTIFIED UNDER DE BOUR, CONVICTION REVERSED (CT APP).

The Court of Appeals, reversing the Appellate Division in this street stop case, determined having defendant “stand right there” with two police officers, while a third took defendant’s ID to an apartment to verify defendant’s claim he was visiting a friend there, was not justified under De Bour:

Defendant … was approached by New York Police Department officers after they observed him exiting and reentering a building in a New York City Housing Authority development several times. Upon the officers’ request, defendant explained that he was visiting a friend who lived in the building. The officers asked defendant for his identification, which he provided. An officer then took defendant’s identification to the eleventh floor of the building to verify whether the occupant of the apartment defendant identified knew him … . Another officer instructed defendant to “stand right there” under the watch of two officers. When the first officer returned, having determined that the occupant of the apartment did not know defendant, defendant was arrested for trespassing. At the precinct, officers conducted a search of defendant’s person incident to his arrest and recovered 42 bags of crack cocaine from his groin area. * * *

At its inception, this was “a general, nonthreatening encounter in which an individual is approached for an articulable reason and asked briefly about his or her identity, destination, or reason for being in the area” … . That request implicated only level one of De Bour … and required only an objective credible reason to make basic inquiries of defendant … . On this record, the initial inquiry was justified.

However, the record demonstrates that the encounter thereafter rose beyond a level-one request for information, which the People failed to justify as lawful. Consequently, the People have failed to preserve any argument that the encounter in this case was justified under levels two or three of De Bour. People v Hill, 2019 NY Slip Op 03405, CtApp 5-2-19

 

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DEFENDANT’S PAPERS SUFFICIENTLY RAISED A QUESTION WHETHER HE WAS DENIED HIS RIGHT TO EFFECTIVE COUNSEL BECAUSE OF COUNSEL’S CONFLICT OF INTEREST, DENIAL OF DEFENDANT’S MOTION TO VACATE HIS CONVICTION WITHOUT A HEARING WAS AN ABUSE OF DISCRETION (CT APP).

The Court of Appeals, over a dissenting opinion by Judge Stein, determined that defendant was entitled to a hearing on his motion to vacate his conviction on the ground his attorney (Chabrowe) was ineffective because of a conflict of interest. Defendant alleged a party (Salaam) who was present at the scene of the depraved indifference murder committed by defendant was represented by Chabrowe and had paid Chabrowe’s fees on defendant’s behalf:

Although defendant had informed the trial court during the Gomberg inquiry that he or his family had hired Chabrowe, he alleged that Salaam paid Chabrowe to represent defendant, resulting in an undisclosed and “unwaivable” conflict, and that Chabrowe failed to explain any possible conflict of interest related to Salaam’s payment of defendant’s legal fees. In addition to his own affidavit, defendant submitted an affirmation from his current appellate counsel, who relayed details of a conversation he affirmed he had with Chabrowe about the payment of defendant’s legal fees. Defendant also relied on recorded prison phone calls, which purportedly corroborate defendant’s allegation that Salaam hired and paid for his attorney. * * *

We review the summary denial of a CPL 440.10 motion under an abuse of discretion standard. On this record, we conclude that Supreme Court abused its discretion in determining that a hearing was not warranted to address the allegations contained in defendant’s CPL 440.10 motion regarding Chabrowe’s representation of defendant and whether any conflict of interest existed warranting reversal. People v Brown, 2019 NY Slip Op 03404, CtApp 5-2-19

 

THE COURT DID NOT AUTHORIZE THE SECOND SUPERSEDING INDICTMENT PROCURED BY THE PEOPLE AFTER A MISTRIAL, THE SECOND SUPERSEDING INDICTMENT WAS A NULLITY, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the second superseding indictment, procured after a mistrial, was a nullity:

Before trial commenced, the People obtained a superseding indictment … . A jury trial on the superseding indictment ensued; however, after the jury was impaneled and sworn, defendant’s motion for a mistrial was granted. The People subsequently obtained a second superseding indictment … . …

… [T]he second superseding indictment is a nullity and assert, therefore, that defendant’s conviction must be reversed and the matter remitted for further proceedings on the first superseding indictment. In declaring a mistrial, County Court did not dismiss the superseding indictment or authorize the People to re-present new charges to a grand jury. Accordingly, the People were limited to retrying defendant upon the superseding indictment, and the second superseding indictment was a nullity … . Where, as here, an indictment is a nullity, “any action or consequence that flowed from its filing . . . was necessarily a nullity as well”… . Accordingly, the judgment must be reversed. People v Moseley, 2019 NY Slip Op 03408, Third Dept 5-2-19

 

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THE WARRANTLESS SEARCH OF A HOME TO RETRIEVE A HANDGUN DEFENDANT HAD THROWN UNDER A CHAIR IN THE PRESENCE OF THE POLICE WAS NOT JUSTIFIED UNDER ANY EXCEPTION TO THE WARRANT REQUIREMENT, THE PLAIN VIEW DOCTRINE DID NOT APPLY BECAUSE THE OFFICER DID NOT KNOW WHAT THE DEFENDANT HAD THROWN UNDER THE CHAIR, THE EMERGENCY EXCEPTION DID NOT APPLY BECAUSE THE DEFENDANT WAS IN CUSTODY WHEN THE OFFICER REENTERED THE HOME TO LOOK UNDER THE CHAIR (SECOND DEPT).

The Second Department determined the handgun seized in a warrantless search inside a home should have been suppressed, and subsequent statements made by the defendant should have been suppressed as the fruit of the illegal search. The defendant’s psychiatrist had called the police to tell them defendant had a gun and was paranoid. The defendant had previously threatened to shoot police officers. Officer Temple was given permission by defendant’s mother to enter the home. Then defendant ran to the back of the house and threw something under a chair. After the defendant was in custody Officer Temple went back into the house, lifted up the chair and seized a handgun from under the chair. Up until that point Officer Temple did not know what the object was, so the plain-view justification for a warrantless search was not available:

Contrary to the People’s contention, the consent of the defendant’s mother to the police to enter the home to speak with the defendant did not constitute a consent to Officer Temple’s search of the living room … . Moreover, contrary to the People’s contention, the seizure of the firearm does not fall within the plain view exception … . Officer Temple’s testimony as to what he believed the object was, based upon the 911 call, his police experience, and military training, does not meet the requirement of the plain view doctrine, since he testified that he did not know what the object was until he moved the chair … . The People do not assert on appeal that the seizure was lawful pursuant to the emergency exception and, in any event, any exigency abated once the defendant was detained … .

Under the circumstances of this case, the physical evidence that was recovered from the residence must be suppressed, as the search was illegal, and the defendant’s subsequent statements to law enforcement officials must be suppressed as fruit of the poisonous tree … . People v Hickey, 2019 NY Slip Op 03364, Second Dept 5-1-19

 

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