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DEFENDANT’S REQUEST TO REPRESENT HIMSELF, MADE AFTER ELEVEN JURORS HAD BEEN SELECTED, WAS PROPERLY REJECTED AS UNTIMELY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a three-judge dissent, determined defendant's request to represent himself after 11 jurors had been selected was properly rejected as untimely:

… [P]rior to opening statements, but after 11 jurors were selected and sworn, defendant sought to invoke his right to proceed pro se. As set forth in the seminal case of People v McIntyre, there is a three-prong analysis to determine when a defendant in a criminal case may invoke this right: “(1) the request [must be] unequivocal and timely asserted, (2) there [must have] been a knowing and intelligent waiver of the right to counsel, and (3) the defendant [must] not engage[] in conduct which would prevent the fair and orderly exposition of the issues” (36 NY2d 10, 17 [1974]). This appeal relates to the first prong — specifically, we must consider whether defendant's request was untimely as a matter of law because it was made after commencement of the trial. We hold that, in conformity with the statutory scheme set forth in the Criminal Procedure Law, the jury trial has commenced when jury selection begins. Accordingly, the trial court's determination that defendant's request to proceed pro se, made near the conclusion of jury selection, was untimely was not error. * * *

… [A]a request to represent oneself in a criminal trial is timely where the application to proceed pro se is made before the trial commences. The Criminal Procedure Law defines the commencement of trial as the beginning of jury selection. Where 11 jurors had been selected and sworn as trial jurors before defendant's request to proceed pro se was made, defendant's request was untimely. As a result, there was no legal error in the trial court's determination that the request to represent himself was untimely and in its denial of such request without further inquiry. People v Crespo, 2018 NY Slip Op 06849, CtApp 10-16-18

CRIMINAL LAW (DEFENDANT'S REQUEST TO REPRESENT HIMSELF, MADE AFTER ELEVEN JURORS HAD BEEN SELECTED, WAS PROPERLY REJECTED AS UNTIMELY (CT APP))/ATTORNEYS (CRIMINAL LAW, DEFENDANT'S REQUEST TO REPRESENT HIMSELF, MADE AFTER ELEVEN JURORS HAD BEEN SELECTED, WAS PROPERLY REJECTED AS UNTIMELY (CT APP))/PRO SE (CRIMINAL LAW, DEFENDANT'S REQUEST TO REPRESENT HIMSELF, MADE AFTER ELEVEN JURORS HAD BEEN SELECTED, WAS PROPERLY REJECTED AS UNTIMELY (CT APP))

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CLAIMANT’S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined the fact that the claimant was terminated from her employment as a city tax assessor because of two drunk-driving-related crimes did not preclude her from eligibility for unemployment insurance, The drunk driving incidents had nothing to do with her job and there was evidence she could have continued doing her job even though her license had been suspended for 90 days:

The disciplinary determination was founded, in part, upon claimant's two convictions for driving while under the influence of alcohol and her resulting license suspension. Whether this amounted to disqualifying misconduct posed a factual question for the Board, “and not every mistake, exercise of poor judgment or discharge for cause will rise to the level of misconduct” … . …

The drunk driving incidents did not occur while claimant was working. Notably, possession of a valid driver's license was not listed among the qualifications necessary to hold the position of Sole Assessor and claimant testified that she was not advised that this was a requirement … . Claimant was not incarcerated as a result of her convictions and she testified that she was ready and able to fulfill her job duties notwithstanding the suspension of her driver's license … . Moreover, while claimant acknowledged that she occasionally did site visits, she testified that she could perform her duties while her license was temporarily suspended given that much of the data needed to compute the assessments had already been compiled and she could obtain a lot of the information online. Matter of Stack (City of Glens Falls–Commissioner of Labor), 2018 NY Slip Op 06840, Third Dept 10-11-18

UNEMPLOYMENT INSURANCE (CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/EMPLOYMENT LAW (CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/MUNICIPAL LAW  (CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/CRIMINAL LAW (UNEMPLOYMENT INSURANCE, CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))

ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH PATRONIZING A PROSTITUTE WAS NOT JURISDICTIONALLY DEFECTIVE BECAUSE A CLINICAL PHRASE WAS USED TO DESCRIBE SEXUAL ACTIVITY (CT APP).

The Court of Appeals, reversing the appellate term, determined that the accusatory instrument charging defendant with patronizing a prostitute was not jurisdictionally defective:

Giving the allegations “a fair and not overly restrictive or technical reading” … , and “drawing reasonable inferences from all the facts set forth in the accusatory instrument” … , the accusatory instrument contains sufficient facts to demonstrate “reasonable cause” to believe (CPL 100.40[4][b]) that defendant was guilty of patronizing a prostitute in the third degree (see Penal Law § 130.00[10]). The factual allegations that defendant requested “manual stimulation” from a woman on a street corner, for a specific sum of money, at 2:25 a.m., supplied “defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy”… . Defendant’s argument that “manual stimulation” could be indicative of nonsexual conduct ignores the inferences of sexual activity to be drawn from the factual context in which the statement was alleged to have been made—a late night solicitation of a physical personal service from an individual on a public street, in exchange for a sum of money. Any assertion that defendant was referring to a nonsexual activity “was a matter to be raised as an evidentiary defense not by insistence that this information was jurisdictionally defective” … . The fact that the instrument used a clinical phrase for the sexual activity alleged does not render the instrument jurisdictionally defective. People v Drelich, 2018 NY Slip Op 06785, CtApp 10-11-18

CRIMINAL LAW (ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH PATRONIZING A PROSTITUTE WAS NOT JURISDICTIONALLY DEFECTIVE BECAUSE A CLINICAL PHRASE WAS USED TO DESCRIBE SEXUAL ACTIVITY (CT APP))/PATRONIZING A PROSTITUTE (CRIMINAL LAW, ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH PATRONIZING A PROSTITUTE WAS NOT JURISDICTIONALLY DEFECTIVE BECAUSE A CLINICAL PHRASE WAS USED TO DESCRIBE SEXUAL ACTIVITY (CT APP))/ACCUSATORY INSTRUMENT (CRIMINAL LAW, ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH PATRONIZING A PROSTITUTE WAS NOT JURISDICTIONALLY DEFECTIVE BECAUSE A CLINICAL PHRASE WAS USED TO DESCRIBE SEXUAL ACTIVITY (CT APP))

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THE CRIMINAL LAW DEFINITION OF SERIOUS PHYSICAL INJURY IS NOT THE STANDARD FOR ABUSE IN FAMILY COURT, THE STANDARD IS ‘CREATING A SUBSTANTIAL RISK OF SERIOUS INJURY’ (SECOND DEPT).

The Second Department, reversing Family Court, found that the child, Talia, was abused. Family Court had determined that Talia was not abused because her injuries did not meet the definition of serious physical injury as defined in the Penal Law. The Family Court Act criteria is “creating a substantial risk of serious injury:”

We agree with the Family Court's finding that Talia's injuries were “clearly inflicted and not accidental.” However, we disagree with the court's finding that Talia was not abused based on its determination that she had not sustained a serious physical injury as defined in Penal Law § 10.00(10). Although the definition of “abuse” under Family Court Act § 1012 is similar to the definition of “serious physical injury” under the Penal Law, the definitions are not identical. The Penal Law defines “serious physical injury” as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss of impairment of the function of any bodily organ” (Penal Law § 10.00[10]). However, under the Family Court Act, a “child need not sustain a serious injury for a finding of abuse as long as the evidence demonstrates that the parent sufficiently endangered the child by creating a substantial risk of serious injury” … .

Here, the fracture to Talia's humerus required her arm to be immobilized for more than two weeks, which is sufficient to establish a protracted impairment of health … . In addition, the medical testimony revealed that this injury caused Talia pain and discomfort, and could take months to heal. Furthermore, there was a concern that there could be loss of function and loss of growth potential. Although this was unlikely in Talia's case, since her fracture was not completely displaced, the conduct of the mother, the father, and the maternal grandmother still created a substantial risk that such injury could have occurred … . Matter of Jonah B. (Ferida B.), 2018 NY Slip Op 06735, Second Dept 10-10-18

FAMILY LAW (THE CRIMINAL LAW DEFINITION OF SERIOUS PHYSICAL INJURY IS NOT THE STANDARD FOR ABUSE IN FAMILY COURT, THE STANDARD IS 'CREATING A SUBSTANTIAL RISK OF SERIOUS INJURY' (SECOND DEPT))/ABUSE (FAMILY LAW, THE CRIMINAL LAW DEFINITION OF SERIOUS PHYSICAL INJURY IS NOT THE STANDARD FOR ABUSE IN FAMILY COURT, THE STANDARD IS 'CREATING A SUBSTANTIAL RISK OF SERIOUS INJURY' (SECOND DEPT))/SERIOUS PHYSICAL INJURY (FAMILY LAW, THE CRIMINAL LAW DEFINITION OF SERIOUS PHYSICAL INJURY IS NOT THE STANDARD FOR ABUSE IN FAMILY COURT, THE STANDARD IS 'CREATING A SUBSTANTIAL RISK OF SERIOUS INJURY' (SECOND DEPT))/CRIMINAL LAW (FAMILY LAW, ABUSE, THE CRIMINAL LAW DEFINITION OF SERIOUS PHYSICAL INJURY IS NOT THE STANDARD FOR ABUSE IN FAMILY COURT, THE STANDARD IS 'CREATING A SUBSTANTIAL RISK OF SERIOUS INJURY' (SECOND DEPT))

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THE CONTENTION DEFENDANT WAS ILLEGALLY SENTENCED SURVIVES A WAIVER OF APPEAL AND WILL BE HEARD IN THE INTEREST OF JUSTICE, THE PEOPLE DID NOT SHOW THE EQUIVALENCY OF THE CALIFORNIA ROBBERY CONVICTION, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND VIOLENT FELONY OFFENDER (SECOND DEPT).

The Second Department, remitting the matter for resentencing, determined defendant should not have been sentenced as a second violent felony offender because the People did not demonstrate the equivalency of the California robbery statute. The court noted that illegal sentence would survive a waiver of appeal and the issue would be reached in the interest of justice:

Penal Law § 70.04 requires the imposition of enhanced sentences for those found to be predicate violent felons … . “Subdivision (1)(b)(i) of that section provides, in pertinent part, that a prior out-of-state conviction qualifies as a predicate violent felony conviction if it involved all of the essential elements of any [violent] felony for which a sentence to a term of imprisonment in excess of one year . . . was authorized and is authorized in this state'”… .

In this context, the Court of Appeals has “applied a strict equivalency standard that examines the elements of the foreign conviction to determine whether the crime corresponds to a New York [violent] felony, usually without reference to the facts giving rise to that conviction” … . “As a general rule, this inquiry is limited to a comparison of the crimes' elements as they are respectively defined in the foreign and New York penal statutes” … . However, “the strict equivalency test [also] allows a reviewing court to examine . . . any foreign statute or case law that informs the interpretation of a foreign code breached by the defendant” … .

The People have the burden of establishing that the defendant was convicted of an offense in a foreign jurisdiction that is equivalent to a violent felony in New York … . “When a statute-to-statute comparison reveals differences in the elements such that it is possible to violate the foreign statute without engaging in conduct that is a [violent] felony in New York, the foreign statute may not serve as a predicate” … .

Here, the People failed to satisfy their burden of establishing that the defendant was convicted of an offense in a foreign jurisdiction that is equivalent to a violent felony in New York …. The People failed to demonstrate that the California offense of robbery in the first degree … is equivalent to a New York criminal offense designated as a violent felony … . People v Salako, 2018 NY Slip Op 06770, Second Dept 10-10-18

CRIMINAL LAW (THE CONTENTION DEFENDANT WAS ILLEGALLY SENTENCED SURVIVES A WAIVER OF APPEAL AND WILL BE HEARD IN THE INTEREST OF JUSTICE, THE PEOPLE DID NOT SHOW THE EQUIVALENCY OF THE CALIFORNIA ROBBERY CONVICTION, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND VIOLENT FELONY OFFENDER (SECOND DEPT))/APPEALS (CRIMINAL LAW, THE CONTENTION DEFENDANT WAS ILLEGALLY SENTENCED SURVIVES A WAIVER OF APPEAL AND WILL BE HEARD IN THE INTEREST OF JUSTICE, THE PEOPLE DID NOT SHOW THE EQUIVALENCY OF THE CALIFORNIA ROBBERY CONVICTION, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND VIOLENT FELONY OFFENDER (SECOND DEPT))/SENTENCING  (THE CONTENTION DEFENDANT WAS ILLEGALLY SENTENCED SURVIVES A WAIVER OF APPEAL AND WILL BE HEARD IN THE INTEREST OF JUSTICE, THE PEOPLE DID NOT SHOW THE EQUIVALENCY OF THE CALIFORNIA ROBBERY CONVICTION, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND VIOLENT FELONY OFFENDER (SECOND DEPT))/SECOND VIOLENT FELONY OFFENDER (THE CONTENTION DEFENDANT WAS ILLEGALLY SENTENCED SURVIVES A WAIVER OF APPEAL AND WILL BE HEARD IN THE INTEREST OF JUSTICE, THE PEOPLE DID NOT SHOW THE EQUIVALENCY OF THE CALIFORNIA ROBBERY CONVICTION, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND VIOLENT FELONY OFFENDER (SECOND DEPT))

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ALTHOUGH THE ERRORS WERE NOT PRESERVED, DEFENDANT’S MURDER CONVICTION REVERSED FOR THREE REASONS; FAILURE TO GIVE THE ACCOMPLICE IN FACT JURY INSTRUCTION, PROSECUTORIAL MISCONDUCT, AND INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT).

The Second Department, in the interest of justice, reversed the defendant's murder conviction because (1) the trial judge failed to give the accomplice in fact jury instruction, (2) prosecutorial misconduct and (3) ineffective assistance in failing to object to the prosecutor's statements and failure to request the accomplice instruction:

During her summation, the prosecutor stated that the “defendant's DNA was on the safety of that gun,” and that “the science finds him guilty.” The prosecutor further stated that “[t]he DNA has spoken,” and that “[t]he defendant's DNA, by being on that safety without even taking into account [the witness's] testimony, makes him guilty.” This was an overstatement and misrepresentation of the statistical comparison testified to by the People's expert who performed the DNA analysis of the swab taken from the safety of the murder weapon. “While the prosecutor was entitled to fair comments on the DNA evidence available in this case, she was not entitled to present the results in a manner that was contrary to the evidence and the science” … . “In light of the powerful influence of DNA evidence on juries, the opportunity for juror confusion regarding the limited probative value of the DNA methodology employed in this case, and the qualified nature of the test results,” the prosecutor engaged in misconduct when she misrepresented and overstated the probative value of the DNA evidence by telling the jury that the defendant's DNA was on the safety of the murder weapon (id. at 771). As a result, the defendant was deprived of his right to a fair trial … .

The prosecutor also engaged in misconduct during her summation when she stated that she met with the witness on several occasions, and during those times, “he did not know that his DNA was on the trigger or the trigger guard or anywhere on that weapon,” and she “did not tell him that the DNA, his DNA was on that gun.” The prosecutor's summation also included the following statements: “But [the witness] told me in talking about this case in detail, he told me what he did”; “He told me that he held that firearm”; “Exactly how he told you on this stand when the defendant dropped it, . . . he picked it up and quickly threw it into a black bag so his girlfriend wouldn't see”; and “He's telling me and he doesn't even know what I have. Honesty. Straightforward about what happened.” These statements by the prosecutor improperly encouraged inferences of guilt based on facts not in evidence, improperly injected her own credibility into the trial, and improperly vouched for the credibility of a witness for the People … .

We further find that the defendant was deprived of the effective assistance of counsel, inter alia, due to defense counsel's failure to object to the prosecutor's improper comments in summation … and defense counsel's failure to request an accomplice corroboration charge … . People v Powell, 2018 NY Slip Op 06768, Second Dept 10-10-18

CRIMINAL LAW (ALTHOUGH THE ERRORS WERE NOT PRESERVED, DEFENDANT'S MURDER CONVICTION REVERSED FOR THREE REASONS; FAILURE TO GIVE THE ACCOMPLICE IN FACT JURY INSTRUCTION, PROSECUTORIAL MISCONDUCT, AND INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, ALTHOUGH THE ERRORS WERE NOT PRESERVED, DEFENDANT'S MURDER CONVICTION REVERSED FOR THREE REASONS; FAILURE TO GIVE THE ACCOMPLICE IN FACT JURY INSTRUCTION, PROSECUTORIAL MISCONDUCT, AND INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))/APPEALS (CRIMINAL LAW, ALTHOUGH THE ERRORS WERE NOT PRESERVED, DEFENDANT'S MURDER CONVICTION REVERSED FOR THREE REASONS; FAILURE TO GIVE THE ACCOMPLICE IN FACT JURY INSTRUCTION, PROSECUTORIAL MISCONDUCT, AND INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))/PROSECUTORIAL MISCONDUCT  (ALTHOUGH THE ERRORS WERE NOT PRESERVED, DEFENDANT'S MURDER CONVICTION REVERSED FOR THREE REASONS; FAILURE TO GIVE THE ACCOMPLICE IN FACT JURY INSTRUCTION, PROSECUTORIAL MISCONDUCT, AND INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))/INEFFECTIVE ASSISTANCE  (ALTHOUGH THE ERRORS WERE NOT PRESERVED, DEFENDANT'S MURDER CONVICTION REVERSED FOR THREE REASONS; FAILURE TO GIVE THE ACCOMPLICE IN FACT JURY INSTRUCTION, PROSECUTORIAL MISCONDUCT, AND INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))

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THE WEAKNESS OF THE COMPLAINANT’S TESTIMONY ABOUT THE IDENTITY OF THE ASSAILANT AND THE WEAKNESS OF THE HIGH-SENSITIVITY DNA ANALYSIS REQUIRED REVERSAL UNDER A WEIGHT OF THE EVIDENCE REVIEW (SECOND DEPT).

The Second Department, under a weight of the evidence analysis, reversed defendant's gang assault conviction. The Second Department noted the weakness of the complainant's testimony about the identity of the assailant and the weakness of the DNA evidence. One of the assailants removed complainant's sneaker and threw it. There was very little DNA on the sneaker and a special “high-sensitivity” analysis was used:

The complainant's sneaker was recovered six days after the incident. The DNA sample obtained from the sneaker contained only 97.9 picograms of DNA, which is less than the minimum amount of DNA material—100 picograms—needed for traditional DNA testing. Further, the DNA sample was a nondeducible mixture, meaning that it contained the DNA of two or more persons, but that the mixture could not be broken apart to determine which strings of DNA came from which person. Nevertheless, the New York City Office of the Chief Medical Examiner (hereinafter OCME) utilized “high-sensitivity” DNA analysis, a method of testing OCME developed to analyze DNA samples of less than 100 picograms. An OCME criminologist testifying at the trial admitted that in developing high-sensitivity testing, OCME “tweaked the protocols” of DNA testing. Based on the high-sensitivity testing, OCME found that the mixture was indicative of a two-person mixture. This OCME criminologist testified that the DNA profiles of the complainant and the defendant were then compared to the sample, and a forensic statistical tool (hereinafter FST) developed by OCME was used to determine the “likelihood ratio” that the defendant was one of the two contributors. The FST analysis concluded that it was 695,000 times more probable that the DNA sample originated from the defendant and an unknown unrelated person than from two unknown unrelated persons. The analysis also found that it was 133 times more likely that the DNA sample originated from the defendant and the complainant than from the complainant and an unknown unrelated person. The FST analysis of the DNA was based upon a Caucasian population, and failed to take into account the genetic history of the defendant, a member of the Hasidic population. Moreover, the likelihood ratio result was only 133, a relatively insubstantial number.

Under the circumstances of this case, including the complainant's inability to positively identify any of his attackers, the varying accounts regarding the incident, and the DNA evidence, which was less than convincing, we find that the evidence, when properly weighed, did not establish the defendant's guilt beyond a reasonable doubt. People v Herskovic, 2018 NY Slip Op 06763, Second Dept 10-10-18

CRIMINAL LAW (THE WEAKNESS OF THE COMPLAINANT'S TESTIMONY ABOUT THE IDENTITY OF THE ASSAILANT AND THE WEAKNESS OF THE HIGH-SENSITIVITY DNA ANALYSIS REQUIRED REVERSAL UNDER A WEIGHT OF THE EVIDENCE REVIEW (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, THE WEAKNESS OF THE COMPLAINANT'S TESTIMONY ABOUT THE IDENTITY OF THE ASSAILANT AND THE WEAKNESS OF THE HIGH-SENSITIVITY DNA ANALYSIS REQUIRED REVERSAL UNDER A WEIGHT OF THE EVIDENCE REVIEW (SECOND DEPT))/APPEALS (CRIMINAL LAW, THE WEAKNESS OF THE COMPLAINANT'S TESTIMONY ABOUT THE IDENTITY OF THE ASSAILANT AND THE WEAKNESS OF THE HIGH-SENSITIVITY DNA ANALYSIS REQUIRED REVERSAL UNDER A WEIGHT OF THE EVIDENCE REVIEW (SECOND DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, THE WEAKNESS OF THE COMPLAINANT'S TESTIMONY ABOUT THE IDENTITY OF THE ASSAILANT AND THE WEAKNESS OF THE HIGH-SENSITIVITY DNA ANALYSIS REQUIRED REVERSAL UNDER A WEIGHT OF THE EVIDENCE REVIEW (SECOND DEPT))/DNA (THE WEAKNESS OF THE COMPLAINANT'S TESTIMONY ABOUT THE IDENTITY OF THE ASSAILANT AND THE WEAKNESS OF THE HIGH-SENSITIVITY DNA ANALYSIS REQUIRED REVERSAL UNDER A WEIGHT OF THE EVIDENCE REVIEW (SECOND DEPT))/HIGH-SENSITIVITY DNA ANALYSIS (THE WEAKNESS OF THE COMPLAINANT'S TESTIMONY ABOUT THE IDENTITY OF THE ASSAILANT AND THE WEAKNESS OF THE HIGH-SENSITIVITY DNA ANALYSIS REQUIRED REVERSAL UNDER A WEIGHT OF THE EVIDENCE REVIEW (SECOND DEPT))

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FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A JURY NOTE WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL (FOURTH DEPT).

The Fourth Department reversed defendant's conviction because the trial judge did not fully advise counsel of the contents of a jury note:

We agree with defendant that the court violated the core requirements of CPL 310.30 in failing to advise counsel on the record of the contents of a substantive jury note, and thereby committed reversible error … . The record establishes that, during its deliberations, the jury sent several notes, the first two of which are germane here. The first note requested that the jury be provided with a written copy of the court's legal instructions, and the second note requested, inter alia, a rereading of all of the court's legal instructions. The record reflects that the court informed the parties that the jury had sent several notes and indicated that the jury requested a rereading of the instructions, but the court did not mention the contents of the first note. Although the record establishes that ” defense counsel was made aware of the existence of the [first] note, there is no indication that the entire contents of the note were shared with counsel' ” … . We therefore “reject the People's argument that defense counsel's awareness of the existence and the gist' of the note satisfied the court's meaningful notice obligation, or that preservation was required. Where the record fails to show that defense counsel was apprised of the specific, substantive contents of the note—as it is in this case—preservation is not required' . . . Moreover, . . . [i]n the absence of record proof that the trial court complied with its [meaningful notice obligation] under CPL 310.30, a mode of proceedings error occurred requiring reversal' ” … . People v Ott, 2018 NY Slip Op 06646, Fourth Dept 10-5-18

CRIMINAL LAW (FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A JURY NOTE WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL (FOURTH DEPT))/JURY NOTES (CRIMINAL LAW, FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A JURY NOTE WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL (FOURTH DEPT))/APPEALS (CRIMINAL LAW, JURY NOTES, FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A JURY NOTE WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL (FOURTH DEPT))

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FAILURE TO RULE ON A PORTION OF DEFENDANT’S MOTION TO VACATE HIS CONVICTION IS NOT A DENIAL, DECISION ON APPEAL RESERVED AND MATTER REMITTED FOR A RULING (FOURTH DEPT).

The Fourth Department noted that a failure to rule on a portion of a motion cannot be deemed a denial. Therefore the decision on appeal was reserved and the matter sent back for a ruling:

Defendant appeals from an order insofar as it failed to grant that part of his pro se motion seeking DNA testing of a rape kit and the victim's shirt and pants. The order addressed defendant's motion to the extent it sought to vacate the judgment of conviction pursuant to CPL 440.10, but did not address the motion to the extent it sought DNA testing pursuant to CPL 440.30 (1-a). Inasmuch as County Court's failure to rule on that part of defendant's motion “cannot be deemed a denial thereof” … , we hold the case, reserve decision, and remit the matter to County Court for a determination whether ” there was a reasonable probability that, had th[e rape kit, shirt and pants] been tested and had the results been admitted at trial, the verdict would have been more favorable to defendant' ” … . People v Lewis, 2018 NY Slip Op 06645, Fourth Dept 10-5-18

CRIMINAL LAW (APPEALS, FAILURE TO RULE ON A PORTION OF DEFENDANT'S MOTION TO VACATE HIS CONVICTION IS NOT A DENIAL, DECISION ON APPEAL RESERVED AND MATTER REMITTED FOR A RULING (FOURTH DEPT))/APPEALS (CRIMINAL LAW, FAILURE TO RULE ON A PORTION OF DEFENDANT'S MOTION TO VACATE HIS CONVICTION IS NOT A DENIAL, DECISION ON APPEAL RESERVED AND MATTER REMITTED FOR A RULING (FOURTH DEPT))

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APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING TO DETERMINE WHETHER THE TRIAL JUDGE APPRISED DEFENSE COUNSEL OF THE ENTIRE CONTENTS OF A JURY NOTE (FOURTH DEPT).

The Fourth Department reserved decision and sent the matter back for a reconstruction hearing concerning whether the trial judge apprised defense counsel of the entire contents of a jury note. The court reporter submitted an affidavit indicating the transcript is incomplete and the judge's remarks about the jury note were inadvertently omitted:

… [T]he People stipulated to the record without seeking to amend the transcript (see CPLR 5525 [c] [1]; see also 22 NYCRR former 1000.4 [a] [1] [ii]), rely upon an affidavit that does not constitute a part of the underlying prosecution … , and have not submitted a supplemental transcript certified by the court reporter that would fall within the parties' stipulation to submit the trial transcripts to this Court … . It is well established, however, that “[p]arties to an appeal are entitled to have that record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of the stenographer”… . Thus, under the circumstances of this case, we take judicial notice of our own records, i.e., the court reporter's affidavit submitted in opposition to defendant's motion for a writ of error coram nobis … .

In her affidavit, the court reporter averred that, although the transcript indicates that the court stated that the jury requested readbacks of the testimony of only four witnesses, the transcript inadvertently omits from the court's recitation of the note the jury's request for a readback of the testimony of a fifth witness—the medical examiner. The court reporter's affidavit thus indicates that a stenographic error may have resulted in a transcript that does not accurately reflect whether the court read the entire content of the note verbatim in open court prior to responding to the jury. We conclude that the alleged error in the transcript of the court's on-the-record reading of the note should be subject to a reconstruction hearing because “[t]he trial judge is the final arbiter of the record' certified to the appellate courts” … . People v Timmons, 2018 NY Slip Op 06644, Fourth Dept 10-5-18

CRIMINAL LAW (APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING TO DETERMINE WHETHER THE TRIAL JUDGE APPRISED DEFENSE COUNSEL OF THE ENTIRE CONTENTS OF A JURY NOTE (FOURTH DEPT))/JURY NOTES (CRIMINAL LAW, APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING TO DETERMINE WHETHER THE TRIAL JUDGE APPRISED DEFENSE COUNSEL OF THE ENTIRE CONTENTS OF A JURY NOTE (FOURTH DEPT))/RECONSTRUCTION HEARING (CRIMINAL LAW, JURY NOTES, APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING TO DETERMINE WHETHER THE TRIAL JUDGE APPRISED DEFENSE COUNSEL OF THE ENTIRE CONTENTS OF A JURY NOTE (FOURTH DEPT))/APPEALS, CRIMINAL LAW, APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING TO DETERMINE WHETHER THE TRIAL JUDGE APPRISED DEFENSE COUNSEL OF THE ENTIRE CONTENTS OF A JURY NOTE (FOURTH DEPT))

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