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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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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

 

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