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DEFENDANT WAS PROPERLY PROHIBITED FROM CROSS-EXAMINING A POLICE OFFICER ABOUT FALSE ARREST AND POLICE BRUTALITY LAWSUITS FILED AGAINST THE OFFICER (SECOND DEPT).

The Second Department noted that the defendant was properly prohibited from cross-examining a police officer about four federal lawsuits filed against the officer:

The Supreme Court providently exercised its discretion in prohibiting the defendant from cross-examining a police witness with respect to the allegations of false arrest and/or police brutality in four federal lawsuits filed against that witness. “Where a lawsuit has not resulted in an adverse finding against a police officer . . . defendants should not be permitted to ask a witness if he or she has been sued, if the case was settled (unless there was an admission of wrongdoing) or if the criminal charges related to the plaintiffs in those actions were dismissed. However, subject to the trial court’s discretion, defendants should be permitted to ask questions based on the specific allegations of the lawsuit if the allegations are relevant to the credibility of the witness” … . “In cross-examining a law enforcement witness, the same standard for good faith basis and specific allegations relevant to credibility applies, as does the same broad latitude to preclude or limit cross-examination” . “First, counsel must present a good faith basis for inquiring, namely, the lawsuit relied upon; second, specific allegations that are relevant to the credibility of the law enforcement witness must be identified; and third, the trial judge exercises discretion in assessing whether inquiry into such allegations would confuse or mislead t… he jury, or create a substantial risk of undue prejudice to the parties”… . Here, the complaints in each of the identified actions contain only allegations of unlawful police conduct by large groups of officers, and did not set forth specific acts of misconduct against the police witness individually. Thus, cross-examination of this witness regarding the federal lawsuits was properly denied … . People v Crupi, 2019 NY Slip Op 03614, Second Dept 5-8-19

 

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PAROLE BOARD DID NOT CONSIDER PETITIONER’S YOUTH AT THE TIME OF THE OFFENSES AND APPEARS TO HAVE DENIED PETITIONER’S APPLICATION FOR RELEASE ON PAROLE SOLELY BASED ON THE SERIOUSNESS OF THE OFFENSES, DE NOVO INTERVIEW IN FRONT OF A DIFFERENT PANEL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the parole board did not support the denial of petitioner’s application for release on parole with detailed reasons as required by Executive Law 259-i[2][a][i]. Petitioner was a juvenile at the time of the murders during a robbery attempt. He has been incarcerated for 36 years. He earned college degrees and assumed an leadership role in helping inmates. The Second Department concluded the parole board focused on the nature of the offenses and did not take petitioner’s youth at the time of the offenses, or his accomplishments, into consideration:

“[A] juvenile homicide offender . . . has a substantive constitutional right not to be punished with life imprisonment for a crime reflect[ing] transient immaturity'”… . “[T]he foundational principle’ of the Eighth Amendment jurisprudence regarding punishment for juveniles is that [the] imposition of a [s]tate’s most severe penalties on juvenile offenders cannot proceed as though they were not children'” … . “A parole board is no more entitled to subject an offender to the penalty of life in prison in contravention of this rule than is a legislature or a sentencing court”… . Consequently, “[f]or those persons convicted of crimes committed as juveniles who, but for a favorable parole determination will be punished by life in prison, the [Parole] Board must consider youth and its attendant characteristics in relationship to the commission of the crime at issue” … . …

Neither the transcript of the September 2016 interview nor the Parole Board’s September 2016 determination shows that the Parole Board considered the petitioner’s youth at the time and “its attendant characteristics” in relationship to the crimes he committed. Instead, the record reflects that the Parole Board did not factor in the petitioner’s age at the time and the impact that his age had on his decisions and actions during the commission of these crimes when it decided to deny him parole release based on “the serious nature of the instant offenses.” Matter of Rivera v Stanford, 2019 NY Slip Op 03601, Second Dept 5-8-19

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PROVIDING WRITTEN INSTRUCTIONS TO THE JURY OVER DEFENDANT’S OBJECTION REQUIRED REVERSAL AND A NEW TRIAL, HOT LIQUID CAN BE A DANGEROUS INSTRUMENT WITHIN THE MEANING OF THE PENAL LAW (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that “defendant is entitled to a new trial because the court provided written instructions to the jury, at its request, but over defendant’s objection (see People v Johnson , 81 NY2d 980 [1993]).”  The court also noted that the jury could have reasonably found that the hot liquid thrown by defendant qualified as a dangerous instrument (see Penal Law §§ 10.00[10],[13]; see also People v Adolph , 299 AD2d 257, 257 [1st Dept 2002], lv denied 99 NY2d 579 [2003]).”  People v Peralta, 2019 NY Slip Op 03539, First Dept 5-7-19

 

IN THE FACE OF BATSON CHALLENGES, THE FACTS THAT A JUROR HAD SERVED ON A HUNG JURY AND WORKED AT A SOUP KITCHEN AND ANOTHER JUROR WORKED FOR A COMMUNITY ORGANIZATION HELPING HIV-POSITIVE DRUG USERS WERE DEEMED VALID, RACE-NEUTRAL REASONS FOR STRIKING THE JURORS, THE CONCURRENCE NOTED THESE REASONS WERE BASED UPON QUESTIONABLE ASSUMPTIONS (FIRST DEPT)

The First Department determined the reasons provided by the prosecutor for striking jurors in the face of Batson challenges were race-neutral. The concurrence called into question the validity of striking jurors on the basis of a “questionable assumption that social service workers, who volunteer in soup kitchens and work in HIV clinics, and persons who satisfy their civic duty as jurors in trials resulting in hung juries, are unduly sympathetic to criminal defendants:”

The court properly denied defendant’s application pursuant to Batson v Kentucky (476 US 79 [1986]). … The record supports the court’s finding that the nondiscriminatory reasons provided by the prosecutor for the challenges … were not pretextual. One panelist had previously served on a hung jury, which we have found to be a valid race-neutral reason for a peremptory challenge … . An additional non-pretextual explanation for challenging this panelist was the prosecutor’s association of her service as a coordinator at a soup kitchen with possible associations with drug users, which raised a concern with the prosecutor that she might have harbored sympathy towards a defendant charged with drug offenses. Somewhat analogously, we previously have found the absence of a racial pretext for peremptory challenges premised on a panelist’s social service orientation, which might lead the panelist to sympathize with someone in the defendant’s position … . People v Teran, 2019 NY Slip Op 03532, First Dept 5-7-19

 

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EVIDENCE THAT DEFENDANT SEX OFFENDER SUFFERS FROM UNSPECIFIED PARAPHILIC DISORDER (USPD) MAY BE ADMISSIBLE IN AN ARTICLE 10 TRIAL, THE EVIDENCE WAS EXCLUDED BELOW, VERDICT VACATED AND PETITION REINSTATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that evidence of unspecified paraphilic disorder (USPD) can be admitted in a sex offender civil management trial. The evidence was excluded at the Mental Hygiene Law article 10 trial. The verdict that defendant does not suffer from a mental abnormality was vacated and the petition was reinstated:

In Matter of State of New York v Hilton C. (158 AD3d 707 [2d Dept 2018] …), the 2nd Department held that the evidence in the record before it, which is similar to the evidence in the record presently before us, failed to establish that “the diagnosis of unspecified paraphilic disorder [USPD] has achieved general acceptance in the psychiatric and psychological communities so as to make expert testimony on that diagnosis admissible” … . In the absence of any other New York State appellate authority, Supreme Court … that USPD was precluded as a diagnosis in article 10 proceedings.

However, we find, contrary to the 2nd Department, and consistent with the decision in Matter of Luis S. v State of New York (166 AD3d 1550 [4th Dept 2018]) that the type of evidence presented at the Frye hearing … in this case — such as the evidence concerning the inclusion of USPD as a diagnosis in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), which signals its general acceptance by the psychiatric community — is sufficient to satisfy the State’s burden of showing that the USPD diagnosis meets the Frye standard.

Accordingly, the verdict that respondent does not suffer from a mental abnormality, rendered after the article 10 trial, from which USPD evidence was excluded, must be vacated, the petition reinstated, and the matter remanded for further proceedings, including a determination whether the evidence meets the threshold standard of reliability and admissibility … . Matter of State of New York v Jerome A., 2019 NY Slip Op 03531, First Dept 5-7-19

 

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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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