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POSTREADINESS DELAY BECAUSE A PROSECUTION WITNESS WAS ON VACATION WAS CHARGEABLE TO THE PEOPLE, DEFENDANT’S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined a period of postreadiness delay because a prosecution witness was on vacation was chargeable to the People and the defendant’s speedy trial motion should have been granted:

It is well established that “[t]he unavailability of a prosecution witness may be a sufficient justification for delay . .. , provided that the People attempted with due diligence to make the witness available” … . Additionally, the reason for the witness’s unavailability is relevant to determining whether a delay is justified. Where a witness is unavailable because of medical reasons or military deployment, courts generally have held that the delay is not chargeable to the People … . Where the witness is unavailable because he or she has taken a vacation, however, many courts have charged the time to the People … . That is because “the mere fact that a necessary witness plans to go on a vacation does not relieve [the People] of their speedy trial obligation” … . Here, the People did not establish that they exercised due diligence to secure the witness’s presence on the scheduled trial date, and we conclude that the delay arising from the witness’s unavailability during his vacation is chargeable to the People. People v Harrison, 2019 NY Slip Op 03173, Fourth Dept 4-26-19

 

UNAUTHORIZED USE OF A VEHICLE WAS A LESSER INCLUSORY CONCURRENT COUNT OF THE GRAND LARCENY COUNT, CONVICTION ON THE GRAND LARCENY COUNT REQUIRED DISMISSAL OF THE LESSER COUNT (FOURTH DEPT).

The Fourth Department dismissed the unauthorized use of a vehicle charge as a lesser inclusory concurrent count of the grand larceny charge, which was based upon car theft:

… “[B]ecause it is impossible to commit the crime of grand larceny in the fourth degree under Penal Law § 155.30 (8) without concomitantly committing the crime of unauthorized use of a vehicle in the third degree under section 165.05 (1)” … , we agree with defendant and the People that count three of the indictment, charging the latter crime, must be dismissed because it is a lesser inclusory concurrent count of count two, charging the former crime … . People v Hickey, 2019 NY Slip Op 03165, Fourth Dept 4-26-19

 

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STATEMENTS MADE AFTER DEFENDANT REQUESTED AN ATTORNEY SHOULD HAVE BEEN SUPPRESSED, ERROR WAS NOT HARMLESS (FOURTH DEPT).

The Fourth Department, reversing County Court, determined that defendant’s statements, made after he had asked for an attorney, should have been suppressed. The court further disagreed with the People’s argument that the error was harmless:

We agree with defendant, however, that County Court … erred in denying that part of his omnibus motion seeking to suppress the statements that he made while at the police station after he unequivocally asserted his right to counsel by asking, “May I have an attorney please, a lawyer?” Specifically, we conclude that the court erred in refusing to suppress the statements that defendant made to investigators during his videotaped interrogation … after requesting an attorney and the statements that defendant made on the videotape after the investigators left the interview room … .

We further conclude that, contrary to the People’s assertion, the court’s error is not harmless inasmuch as there is a “reasonable possibility that the error might have contributed to defendant’s conviction” … . The defense theory at trial was that defendant had consensual sexual contact with the victim. During the videotaped interrogation viewed by the jury, however, defendant repeatedly denied having had any sexual contact with the victim. He then admitted that he had lied, but nevertheless continued to deny that sexual contact had occurred. In addition, the prosecutor, on redirect examination of one of the investigators, elicited testimony establishing that, after the investigators left the room, defendant was recorded making an additional comment that contradicted his earlier statements. People v Jackson, 2019 NY Slip Op 03162, Fourth Dept 4-26-19

 

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DEFENSE COUNSEL WAS INEFFECTIVE BECAUSE HE MISCALCULATED AND FILED A SPEEDY TRIAL MOTION TEN DAYS BEFORE THE SPEEDY TRIAL CLOCK RAN OUT, DEFENDANT’S MOTION TO VACATE THE CONVICTION WAS PROPERLY GRANTED AND THE INDICTMENT DISMISSED (FIRST DEPT).

The First Department determined defense counsel was ineffective when he filed a speedy trial motion 10 days before the speedy trial clock would have run out. The indictment was dismissed in this CPL 440.10 proceeding:

Counsel filed a speedy trial motion, alleging well over the required threshold of 183 days of chargeable time. However, because of counsel’s miscalculations, these allegations included substantial periods that were not in fact chargeable. As a result, the court deciding the speedy trial motion found that only 174 days were chargeable. However, if counsel had waited only 10 more days to file the motion, the circumstances of the case establish that this additional period would unquestionably have been charged to the People, as counsel was aware. Thus, the threshold would have been exceeded, and the court would have been required to grant the speedy trial motion. Instead, the filing of the premature motion stopped the clock and rendered the People’s additional unreadiness excludable.

The CPL 440.10 hearing record establishes that counsel had no strategic reason for filing the speedy trial motion in the form and at the time he did, and that his handling of the motion was objectively unreasonable. Furthermore, the prejudice prong of a single-error ineffectiveness claim was satisfied, because “[i]t is well settled that a failure of counsel to assert a meritorious speedy trial claim is, by itself, a sufficiently egregious error to render a defendant’s representation ineffective” … . People v Stewart, 2019 NY Slip Op 03142, First Dept 4-25-19

 

SUPERIOR COURT INFORMATION DID NOT INCLUDE THE APPROXIMATE TIME OF THE OFFENSE, GUILTY PLEA VACATED (THIRD DEPT).

The Third Department, reversing County Court, determined the superior court information (SCI) to which defendant pled guilty was invalid because it did not include the approximate time of the offense. The guilty plea was vacated:

Defendant contends that the waiver of indictment was deficient, requiring that the guilty plea be vacated, because there was not strict compliance with the statutory mandates of CPL 195.20. Specifically, defendant asserts that the superior court information (hereinafter SCI) does not set forth the “approximate time” of the offense nor does the record establish that the waiver of indictment was signed by defendant in open court … . With regard to the approximate time of the offense, such information, which is required by the plain language of the statute, was omitted from the SCI . Furthermore, this is not “a situation where the time of the offense is unknown or, perhaps, unknowable” so as to excuse the absence…  of such information … . As we have previously noted, “[a]ny other interpretation would render the statute’s language requiring the ‘approximate time’ superfluous or redundant” … . Inasmuch as defendant’s waiver of indictment was not procured in strict compliance with the statutory provisions, it is invalid, thereby requiring vacatur of his guilty plea and dismissal of the SCI … . People v Edwards, 2019 NY Slip Op 03108, Third Dept 4-25-19

 

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A PERSON ADJUDICATED A YOUTHFUL OFFENDER CAN REFUSE TO ANSWER QUESTIONS ABOUT THE CHARGES, THE POLICE INVESTIGATION, THE PLEA AND THE ADJUDICATION, BUT CANNOT REFUSE TO ANSWER QUESTIONS ABOUT THE UNDERLYING FACTS (SECOND DEPT).

The Second Department determined defendant’s youthful offender adjudication allows defendant to refuse to answer questions about the charges, the police investigation, whether she pled guilty and whether a youthful offender adjudication was made, but defendant cannot refuse to answer questions about the facts underlying the adjudication. Here plaintiff sued defendant for personal injuries stemming from a fight with defendant, which was the basis for the youthful offender adjudication:

“[A] person adjudicated a youthful offender may refuse to answer questions regarding the charges and police investigation, whether he or she pleaded guilty, and whether a youthful offender adjudication was made” … . However, “not all of the information contained within the protected records is necessarily privileged” … . The statutory grant of confidentiality afforded to official records and the information contained therein does not extend to the facts underlying the incident which gave rise to the youthful offender adjudication (see CPL 720.35[2]). Thus, an eligible youth may not refuse, on grounds of confidentiality, to answer questions about the facts underlying the subject incident, even though those facts also form the basis of his or her youthful offender adjudication … . Arma v East Islip Union Free Sch. Dist., 2019 NY Slip Op 03019, Second Dept 4-24-19

 

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WHERE THE INDICTMENT ALLEGES MORE THAN ONE WAY TO COMMIT THE CHARGED OFFENSE, THE PEOPLE NEED ONLY PROVE ONE (SECOND DEPT).

The Second Department noted that the People are not required to prove all of the ways the indictment alleged the crime was committed. The People need only prove one:

” Where an offense may be committed by doing any one of several things, the indictment may, in a single count, group them together and charge the defendant with having committed them all, and a conviction may be had on proof of the commission of any one of the things, without proof of the commission of the others'”… . Therefore, where ” the indictment charge[s] more than the People [are] required to prove under the statute,'” they are not required to prove that the defendant committed each of the charged acts … . Accordingly, the fact that the indictment charged the defendant with committing burglary in the third degree by both unlawfully entering and remaining in the subject premises did not require the People to prove both sets of facts and, since they proceeded only on the theory of unlawful entry, the Supreme Court properly instructed the jury on that theory only. People v Bynum. 2019 NY Slip Op 03067, Second dept 4-24-19

 

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MEDICAL RECORDS OF THE VICTIM OF SEXUAL ASSAULT SHOULD NOT HAVE BEEN MADE AVAILABLE TO THE PETITIONER, WHO WAS CONVICTED OF THE SEXUAL ASSAULT, PURSUANT TO PETITIONER’S FREEDOM OF INFORMATION LAW (FOIL) REQUEST, THE RECORDS ARE PROTECTED FROM DISCLOSURE BY THE PUBLIC HEALTH LAW, THE CIVIL RIGHTS LAW AND THE PUBLIC OFFICERS LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical records of the victim of sexual assault could not be disclosed to the petitioner, who was convicted of the sexual assault, pursuant to a Freedom of Information Law (FOIL) request. The medical records were protected from disclosure by the Public Health Law, the Civil Rights Law and the Public Officers Law:

“All government records are presumptively open for public inspection unless specifically exempt from disclosure” … . Public Officers Law § 87(2)(a) provides that an agency may deny access to records that are specifically exempted from disclosure by state or federal statute … . Here, the medical records of the victim sought by the petitioner are exempted from disclosure by Public Health Law §§ 2803-c(3)(f) and 2805-g(3) … . Also, the medical records are exempt from disclosure pursuant to Civil Rights Law § 50-b, which, with exceptions not relevant here, prevents any public officer from disclosing documents that would identify the victim of a sex offense … . Further, the records are exempt from disclosure pursuant to Public Officers Law § 87(2)(e)(i) … . Matter of Crowe v Guccione, 2019 NY Slip Op 03044, Second Dept 4-24-19

 

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DEFENDANT AND DEFENSE COUNSEL ENTITLED TO NOTICE AND AN OPPORTUNITY TO BE HEARD IN OPPOSITION TO A WARRANT APPLICATION FOR THE COLLECTION OF DNA EVIDENCE, YOUTUBE VIDEO NOT PROPERLY AUTHENTICATED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that defendant was entitled to notice and an opportunity to be heard in opposition to a warrant application for the collection of DNA evidence. Defendant was incarcerated and represented on another matter at the time of the warrant application. The First Department also noted that a Youtube video admitted into evidence was not properly authenticated:

In general, search warrant applications are made ex parte … . However, as explained in Matter of Abe A. (56 NY2d 288 [1982]), special rules apply to evidence to be taken from a suspect’s body, such as blood or DNA samples.

The hearing court excluded defense counsel based on its understanding that the discussion of notice in Abe A. applied only to the first “discrete level” of Fourth Amendment analysis identified in that case, involving “the seizure of the person necessary to bring him into contact with government agents,” and not the second level, involving “the subsequent search and seizure for the evidence” (id. at 295 [internal quotation marks omitted]). …

Nothing in the Court’s opinion suggests a basis for applying the “elementary tenet of due process” described by the [Abe A.] Court only to the first part of an application for an order to physically detain a person and then make a corporeal search. … Accordingly, defendant is entitled to suppression of the DNA evidence obtained as a result of the warrant issued by the hearing court, and a new trial … .

… [A]t trial the People failed to adequately authenticate an incriminating YouTube video under the standards set forth in People v Price (29 NY3d 472 [2017]), which was decided after defendant’s trial. The authentication testimony was essentially limited to testimony that the video shown in court was the same as the one posted on YouTube and another website, and that defendant appears in the video. Accordingly, there was no authentication under any of the methods discussed in Price. People v Goldman, 2019 NY Slip Op 02976, First Dept 4-23-19

 

FAILURE TO TELL THE JURY TO STOP DELIBERATING IF THEY FIND THE JUSTIFICATION DEFENSE APPLIES REQUIRED REVERSAL, EVEN THOUGH THE JUDGE TOLD THE JURY TO ACQUIT ON ALL COUNTS IF THE JUSTIFICATION DEFENSE APPLIES (FIRST DEPT).

The First Department, reversing defendant’s conviction, over a dissent, determined the judge’s jury instruction did not make it clear that finding the defendant not guilty of assault first based upon the justification defense required that the jury stop deliberating. The judge had told the jury they must find the defendant not guilty “on all counts” if the justification defense applies:

… [R]eversal is warranted despite the lack of preservation, because, contrary to our dissenting colleague’s contention, the court’s charge, as a whole, failed to properly instruct the jury that if it found defendant not guilty of first-degree assault based on a finding of justification, the jury must not consider the lesser second-degree assault counts arising from defendant’s use of force. The dissent posits that the instruction here is meaningfully different from Velez [People v Velez (131 AD3d 129)] in that the court “made it clear that a finding of not guilty on the basis of justification of the greater charge of assault in the first degree necessitated an acquittal on all counts.” However, we have already considered and rejected the specific argument that it is proper or meaningfully different from Velez where a court employs the same language that the jury “must find the defendant not guilty on all counts” if it finds justification on the greater charge … . This language is not sufficient to convey to the jury the “stop deliberations” principle … . People v Wah, 2019 NY Slip Op 02973, First Dept 4-23-19

 

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