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DETECTIVE’S TESTIMONY IN THE GRAND JURY IDENTIFYING THE PERSON DEPICTED IN VIDEOTAPES AS THE DEFENDANT WAS ADMISSIBLE, COURT OFFERED NO OPINION WHETHER THE TESTIMONY WOULD BE ADMISSIBLE AT TRIAL (FIRST DEPT).

The First Department, reversing Supreme Court, determined a police officer’s testimony before the grand jury identifying the defendant in two videotapes was admissible. The court expressed no opinion whether the identification testimony would have usurped a jury’s role at trial:

The court erroneously dismissed an indictment charging defendant with crimes committed in two incidents, both recorded in videotapes presented to the grand jury, on the ground that a police officer who witnessed neither incident, but knew defendant from the area, identified him in each videotape. This testimony was not impermissible and it did not render the grand jury proceedings defective. The detective testified from his personal knowledge. Moreover, unlike trial jurors who can normally observe a defendant in court, grand jurors do not have that means of making a comparison between a videotape and a defendant’s appearance. In so holding, we express no opinion on the admissibility of a similar identification at trial. The “exceptional remedy of dismissal” … was not warranted. People v McKinney, 2019 NY Slip Op 02950, First Dept 4-18-19

 

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911 CALL PROPERLY ADMITTED AS PRESENT SENSE IMPRESSION OR EXCITED UTTERANCE, DEFENDANT PROPERLY GIVEN CONSECUTIVE SENTENCES FOR WOUNDING ONE VICTIM WITH THE INTENT TO SHOOT ANOTHER VICTIM (SECOND DEPT).

The Second Department determined a 911 recording was properly admitted under the present-sense-impression and excited-utterance exceptions to the hearsay rule and defendant was properly sentenced to consecutive sentences where, intending to shoot one victim, another victim was also hit:

We agree with the Supreme Court’s determination allowing the admission of a recording of a call to the 911 emergency number made by the father of the then-15-year-old victim. The record established that the declarant made the call within seconds of the shooting after his son cried out that he had been shot, and the father saw his neighbor, who was also shot and who the father thought was dying, fall to the ground in a pool of blood. Although the declarant’s statements to the 911 operator were hearsay, they were nevertheless admissible under the exception for excited utterances ” made contemporaneously or immediately after a startling event'” … or present sense impressions made while he was “perceiving the event as it is unfolding or immediately afterward” which are “corroborated by independent evidence establishing [their] reliability” … . …

… [T]he defendant fired multiple shots with the intent of hitting the older victim and one of those shots hit the 15-year-old victim. However, “[t]he test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent” … . The shots which hit the two victims “were the result of separate and distinct acts of pulling a trigger to discharge a firearm” and “repetitive discrete acts, such as successive shots . . . [do not] somehow merge such that they lose their individual character where the same criminal intent . . . inspir[es] the whole transaction” … . Accordingly, the imposition of consecutive sentences for the two counts of attempted murder in the second degree was legal. People v Smith, 2019 NY Slip Op 02911, Second Dept 4-17-19

 

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DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE BECAUSE THE VICTIM WAS NEARLY 17 AND NO FORCE WAS INVOLVED (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a downward departure under risk level guidelines:

Here, the Board recommended a downward departure on the ground set forth in the above guidelines. Significantly, the victim was to turn 17 only two months after the incident and reported that no force was used and that she was a willing participant. Moreover, the victim had various communications with defendant on Facebook and spent time with him prior to the incident, which appears to have been their only sexual encounter. Notably, County Court declined to grant a downward departure on the basis that defendant had already benefited from the victim’s consent by obtaining a light criminal sentence. Clearly, this was not an appropriate factor to be considered under the guidelines. Therefore, under the circumstances presented, we find that defendant established by a preponderance of the evidence the existence of mitigating factors not taken into account by the guidelines and that County Court abused its discretion in denying his request for a downward departure … . Consequently, defendant’s total risk score of 90, which presumptively placed him in the risk level two classification, should be reduced by the 25 points allocable to risk factor 2 (sexual contact with victim), giving him a total risk score of 65 and placing him in the risk level one classification. People v Secor, 2019 NY Slip Op 02759, Third Dept 4-11-19

 

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COURT ORDER AUTHORIZING ACCESS TO DEFENDANT’S HISTORICAL CELL SITE LOCATION DATA INCLUDED AN EXPRESS FINDING OF PROBABLE CAUSE AND WAS THEREFORE THE EQUIVALENT OF A WARRANT (SECOND DEPT).

The Second Department determined the court order authorizing access to defendant’s historical cell site location data in this murder case was the equivalent of a warrant because it included an express finding of probable cause:

The defendant’s contention that his historical cell site location information should have been suppressed as it was purportedly obtained in violation of his Fourth Amendment rights under Carpenter v United States (__ US __, 138 S Ct 2206 [2018]), is unpreserved for appellate review (see CPL 470.05[2]). In any event, the court order authorizing the acquisition of the records made an express finding of probable cause, which was supported by the People’s evidentiary showing … . Accordingly, the order “was effectively a warrant” which complied with the requirement of Carpenter … . People v Clark, 2019 NY Slip Op 02719, Second Dept 4-10-19

 

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THE CONSEQUENCES OF DEFENDANT’S WAIVER OF APPEAL WERE EITHER NOT EXPLAINED OR WERE WRONGLY EXPLAINED, THE WAIVER WAS INVALID, THE INITIAL COMMUNICATION BY THE POLICE OFFICER WAS NOT A LEVEL ONE DE BOUR INQUIRY, THE SWITCHBLADE DEFENDANT THREW AWAY WHEN THE COMMUNICATION WAS MADE WAS PROPERLY ADMITTED IN EVIDENCE (SECOND DEPT).

The Second Department determined (1) defendant’s waiver of appeal was invalid because the nature and consequences of the waiver were either not explained or were wrongly explained, and (2) the police officer’s (Conaghan’s) initial communication with defendant when the officer was sitting in a moving police vehicle was not a level one De Bour inquiry. Therefore the switchblade defendant threw away upon the officer’s communication was properly admitted in evidence:

We agree with the Supreme Court’s determination that the comment, “fellas, how you doing tonight,” constituted a greeting and not a level-one De Bour inquiry … . Conaghan testified at the suppression hearing that, when he asked the defendant and the two other males how they were doing, the window to the vehicle was already rolled down and his partner did not stop the vehicle. He also testified that he often greeted people on the street in this manner. Moreover, the credibility determinations of a court following a suppression hearing are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record … . A review of the record supports the court’s finding that Conaghan’s testimony was credible.

Since there was no impermissible request for information by Conaghan, the defendant’s “unprovoked and wholly voluntary” act of throwing the switchblade was not in direct and immediate response to any illegal actions by the police … . The recovery of the switchblade was not tainted by any illegality, because no illegal inquiry occurred … . People v Birch, 2019 NY Slip Op 02716, Second Dept 4-10-19

 

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

The Third Department, reversing County Court, determined that defendant’s guilty plea must be vacated because the waiver of indictment and superior court information were defective. The time of the offense was not indicated:

We agree with defendant’s contention that, because there was not strict compliance with the statutory mandates of CPL 195.20, his waiver of indictment is invalid, thereby requiring reversal of the judgment of conviction … . The plain language of CPL 195.20 requires that a waiver of indictment include the date and approximate time of the charged offense. Although the waiver of indictment and the SCI, when filed together, may be read as a single document in order to satisfy the requirements of the statute, here, neither the waiver of indictment nor the SCI properly indicate the time of the charged offense … . Moreover, 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 … . People v Titus, 2019 NY Slip Op 02588, Second Dept 4-4-19

Because defendant’s admission to a violation of probation was induced by the explicit promise his sentence for the probation violation would run concurrently with the sentence for attempted burglary, which was reversed above, defendant’s plea to the probation violation was vacated as well.  People v Titus, 2019 NY Slip Op 02589, Third Dept 4-4-19

 

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DEFENDANT HAD SERVED HIS ENTIRE SENTENCE BY THE TIME THE ASSAULT SECOND CONVICTION WAS OVERTURNED, THE IMPOSITION OF MORE PRISON TIME UPON HIS SUBSEQUENT PLEA TO THE ASSAULT SECOND CHARGE VIOLATED THE DOUBLE JEOPARDY CLAUSE, DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT REQUESTING TIME SERVED, BECAUSE THE ERROR AFFECTED THE VOLUNTARINESS OF DEFENDANT’S GUILTY PLEA THE WAIVER OF APPEAL DID NOT APPLY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction and set aside the sentence should have been granted. The court noted that the waiver of appeal did not apply because the alleged error affected the voluntariness of the guilty plea. At the time defendant’s assault second conviction was overturned he had completed his sentence. When he subsequently pled guilty to the assault second charge more prison time was imposed. That violated the prohibition against double jeopardy (punished twice for the same offense). Defense counsel was ineffective for not arguing defendant must be sentenced to time served:

At the time of remittal, it was clear that, more than 15 years earlier, defendant had been sentenced to seven years in prison for his conviction of assault in the second degree, which was the maximum permissible sentence for a second violent felony offender convicted of that crime … . It was also clear that his assault conviction had been overturned on appeal. These facts and circumstances alone would have alerted a reasonably competent attorney to the possibility that any subsequent sentence that included additional prison time might violate the constitutional prohibition against multiple punishments and, by extension, prompted an inquiry into the amount of time that defendant had already served in prison on his 2001 assault conviction. It is evident from the record that defense counsel did not recognize or investigate the obvious potential double jeopardy concern at the time of remittal for, if she had, she would have determined — as the People concede — that defendant had already served the maximum permissible prison term for assault in the second degree and, therefore, could be sentenced only to time served … . People v Jones, 2019 NY Slip Op 02586, Third Dept 4-4-19

 

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PROSECUTION FOR CONSPIRACY TO MURDER AFTER MURDER TRIAL RESULTED IN MANSLAUGHTER AND GANG ASSAULT CONVICTIONS DID NOT VIOLATE THE PROHIBITION AGAINST DOUBLE JEOPARDY (FIRST DEPT).

The First Department determined prosecuting defendant for conspiracy to commit murder, after a trial for the murder resulted in a conviction for manslaughter and gang assault, did not violate the prohibition against double jeopardy:

Defendant’s prosecution for conspiracy to commit murder, after a prior prosecution for the actual murder resulted in a trial conviction for manslaughter and gang assault, did not violate the federal or state double jeopardy prohibitions, because conspiracy is not the same offense, for double jeopardy purposes, as murder, manslaughter, or gang assault … . “The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not” (Blockburger v United States, 284 US 299, 304 [1932] [citations omitted]). Neither the fact that the evidence at the homicide trial would have also supported a conspiracy charge, nor the fact that defendant had been alleged to have acted in concert with other persons, has any relevance under the Blockburger test. People v Herrera, 2019 NY Slip Op 02631, First Dept 4-4-19

 

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JURY INSTRUCTIONS ALLOWED DEFENDANT TO BE CONVICTED ON A THEORY THAT WAS NOT INCLUDED IN THE INDICTMENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE IN THIS ANIMAL CRUELTY CASE, NEW TRIAL ORDERED DESPITE DEFENDANT’S HAVING COMPLETED HIS SENTENCE (FIRST DEPT).

The First Department, reversing Supreme Court in the interest of justice, determined the jury instructions in this animal cruelty case allowed a conviction on a theory that was not included in the indictment. A new trial was ordered, despite defendant’s having served his sentence:

As the People essentially concede, the court’s jury charge constructively amended the indictment … . The indictment was limited to a theory that defendant personally mistreated his dog. However, the court read Agriculture & Markets Law § 353 to the jury almost in its entirety, including a provision that would allow the jury to convict defendant if he merely permitted another person to mistreat his dog. Unlike ordinary accessorial liability under Penal Law § 20.00, this theory of “permitting” is an entirely different way of committing the crime from personally mistreating the animal. This error was not harmless, because there was evidence from which a reasonable jury could have inferred that defendant took the blame for his dog’s condition to cover for his uncle, who lived with defendant and made inconsistent statements about whether he witnessed defendant beating the dog.

However, the fact that defendant has completed his sentence does not warrant dismissal of the indictment. That approach is suitable only in cases of “relatively minor crimes”  … , and this case involves “serious” allegations  …of abusing an animal. Accordingly, we remand for a new trial. People v Gentles, 2019 NY Slip Op 02623, First Dept 4-4-19

 

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DEFENDANT WAS HANDCUFFED WHEN THE POLICE SEARCHED A BAG ON THE FLOOR NEAR HIM, THE KNIFE IN THE BAG SHOULD HAVE BEEN SUPPRESSED, JUDGE PROPERLY PROCEEDED TO TRIAL WITHOUT A COMPETENCY EXAM ORDERED BY ANOTHER JUDGE AFTER DEFENDANT REFUSED TO BE EXAMINED (FIRST DEPT).

The First Department determined the warrantless search of a bag next to defendant was not justified as a search of the “grabbable” area because defendant was handcuffed. Admitting the knife in evidence was harmless error, however. Another judge had ordered a sixth CPL article 730 competency exam, but, after the defendant refused to be examined, the trial judge properly commenced the trial without the ordered examination. The defendant had a long history of psychiatric problems, but the most recent exam deemed him competent:

In the circumstances presented, the court did not err when it determined that defendant’s trial would commence notwithstanding that a different judge had ordered a sixth CPL article 730 examination, which had not yet been conducted because the defendant refused to be examined … . The court acted within its discretion to decline to repeatedly issue force orders to compel defendant’s submission to the extant competency examination order. Furthermore, the court considered the long history of examinations in this case and its own observations of defendant over its prolonged history. We find nothing in People v Armlin (37 NY2d 167 [1975]) that prohibits a court from considering changed or extraordinary circumstances in denying a previously granted examination, particularly given defendant’s profound lack of cooperation and a recent examination finding him competent.

We find that the trial court should have suppressed the 12 inch knife recovered by the police during a warrantless search of defendant’s bag. Although at the time of the search the bag was on the floor within the “grabbable area” next to defendant, he was standing with his arms handcuffed behind his back … . These circumstances do not support a reasonable belief that the defendant could have either gained possession of a weapon or destroyed evidence located in the bag. Police did not show any exigency to justify the warrantless search of the bag … . People v Washington, 2019 NY Slip Op 02610, First Dept 4-4-19

 

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