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AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the affidavit submitted in support of a warrant application for a DNA swab was insufficient and the motion to suppress should have been granted:

To establish probable cause, a search warrant application must provide sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place'”… . Here, as the People correctly concede, the affidavit of the detective submitted in support of the search warrant application was conclusory and insufficient to establish probable cause to issue the warrant … . The detective stated that he believed evidence related to the victim’s murder may be found in the defendant’s saliva based on his interview of witnesses, information supplied to him by fellow police officers, and his review of police department records. However, the detective did not identify the witnesses or indicate what information he obtained from them, and did not specify what police department records he reviewed, or what information was contained in the records. People v Augustus, 2018 NY Slip Op 05480, Second Dept 7-25-18

CRIMINAL LAW (EVIDENCE, DNA, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/DNA (CRIMINAL LAW, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SEARCH AND SEIZURE (DNA, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW, DNA, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SEARCH WARRANT (DNA, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILURE TO MOVE TO SUPPRESS THE RESULTS OF THE WARRANTLESS SEARCH OF A GARBAGE BAG AND CELL-SITE LOCATION RECORDS WHICH WERE JUSTIFIED BY EXIGENT CIRCUMSTANCES , AND DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF THE STRENGTH OF DNA EVIDENCE (FOURTH DEPT).

The Fourth Department determined the defendant was not deprived of effective assistance of counsel by (1) the failure to move to suppress evidence found in a garbage bag outside defendant’s grandmother’s house, (2) the failure to move to suppress cell site location information (CSLI), and (3) the failure to object to the prosecutor’s mischaracterization of the the DNA evidence as a match.  Exigent circumstances justified the search of the garbage bag and the warrantless search of the cell-site records, and the prosecutorial misconduct was not flagrant and pervasive:

… [W]e conclude that, in light of the particular circumstances that led the police officers to the premises in search of a recently missing 17-year-old girl, that limited search (of the garbage bag) fell within the recognized emergency exception to the warrant requirement … . …

The Supreme Court recognized that “case-specific exceptions may support a warrantless search of an individual’s cell-site records under certain circumstances” … . “One well-recognized exception applies when the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment . . . Such exigencies include the need to . . . protect individuals who are threatened with imminent harm” … . …

The testimony at trial established that defendant could not be excluded as the source of the DNA found on the victim’s nail and that the chance of randomly selecting an unrelated individual as the source of the DNA was less than one in 114,000. Here, … the sole mischaracterization of the DNA evidence ” did not rise to the flagrant and pervasive level of misconduct [that] would deprive defendant of due process,’ “… . People v Lively, 2018 NY Slip Op 05413, Fourth Dept 7-25-18

CRIMINAL LAW (DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILURE TO MOVE TO SUPPRESS THE RESULTS OF THE WARRANTLESS SEARCH OF A GARBAGE BAG AND CELL-SITE LOCATION RECORDS WHICH WERE JUSTIFIED BY EXIGENT CIRCUMSTANCES , AND DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF THE STRENGTH OF DNA EVIDENCE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILURE TO MOVE TO SUPPRESS THE RESULTS OF THE WARRANTLESS SEARCH OF A GARBAGE BAG AND CELL-SITE LOCATION RECORDS WHICH WERE JUSTIFIED BY EXIGENT CIRCUMSTANCES , AND DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF THE STRENGTH OF DNA EVIDENCE (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILURE TO MOVE TO SUPPRESS THE RESULTS OF THE WARRANTLESS SEARCH OF A GARBAGE BAG AND CELL-SITE LOCATION RECORDS WHICH WERE JUSTIFIED BY EXIGENT CIRCUMSTANCES , AND DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF THE STRENGTH OF DNA EVIDENCE (FOURTH DEPT))/INEFFECTIVE ASSISTANCE (DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILURE TO MOVE TO SUPPRESS THE RESULTS OF THE WARRANTLESS SEARCH OF A GARBAGE BAG AND CELL-SITE LOCATION RECORDS WHICH WERE JUSTIFIED BY EXIGENT CIRCUMSTANCES , AND DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF THE STRENGTH OF DNA EVIDENCE (FOURTH DEPT))

ERROR FOR JUDGE TO EFFECTIVELY IGNORE SPECIFIC QUESTIONS IN A JURY NOTE AND TO INSTRUCT THE JURY ON A LEGAL ISSUE THAT HAD NOT BEEN RAISED BEFORE AND COULD NOT, THEREFORE, HAVE BEEN ADDRESSED BY DEFENSE COUNSEL IN SUMMATION (FOURTH DEPT)

The Fourth Department, reversing defendant’s conviction on two of three counts, determined the trial court abused its discretion when, in response to a jury note, it instructed the jury, for the first, that the intent to use a weapon may be presumed from possession of a weapon. The jury had asked specific questions concerning the issue of intent and the judge’s “presumption” instruction did not address those questions. Rather, the instruction allowed the jury to avoid the questions by applying the presumption:

The Criminal Procedure Law allows the jury to ask the court to clarify an instruction “[a]t any time during its deliberation” (CPL 310.30). Upon receiving such a request, the court must ” perform the delicate operation of fashioning a response which meaningfully answer[s] the jury’s inquiry while at the same time working no prejudice to the defendant’ ” … . “[T]he court has significant discretion in determining the proper scope and nature of the response”… . In determining whether the court’s response constituted an abuse of discretion, ” [t]he factors to be evaluated are the form of the jury’s question, which may have to be clarified before it can be answered, the particular issue of which inquiry is made, the [information] actually given and the presence or absence of prejudice to the defendant’ ” … .

We conclude that the court failed in its duty to fashion a response that meaningfully answered the jury’s question and to avoid prejudicing defendant. The jury notes demonstrate that the jury had thoughtful questions about intent and was carefully weighing the conflicting testimony of the witnesses to determine whether and when defendant in fact formed the intent to use the gun unlawfully against another. The court, however, instructed the jury that defendant’s possession of the gun was presumptive evidence of intent to use it unlawfully, and that the jury may not need or want to consider additional evidence in light of that presumption. That answer was not responsive to either note. Moreover, the court’s response prejudiced defendant by introducing new principles of law after summations, when defense counsel no longer had the opportunity to argue that, despite the presumption, the evidence established that defendant lacked the requisite intent … . People v Wood, 2018 NY Slip Op 05422, Fourth Dept 7-25-18

CRIMINAL LAW (ERROR FOR JUDGE TO EFFECTIVELY IGNORE SPECIFIC QUESTIONS IN A JURY NOTE AND TO INSTRUCT THE JURY ON A LEGAL ISSUE THAT HAD NOT BEEN RAISED BEFORE AND COULD NOT, THEREFORE, HAVE BEEN ADDRESSED BY DEFENSE COUNSEL IN SUMMATION (FOURTH DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, ERROR FOR JUDGE TO EFFECTIVELY IGNORE SPECIFIC QUESTIONS IN A JURY NOTE AND TO INSTRUCT THE JURY ON A LEGAL ISSUE THAT HAD NOT BEEN RAISED BEFORE AND COULD NOT, THEREFORE, HAVE BEEN ADDRESSED BY DEFENSE COUNSEL IN SUMMATION (FOURTH DEPT))/JURY NOTES  (CRIMINAL LAW, ERROR FOR JUDGE TO EFFECTIVELY IGNORE SPECIFIC QUESTIONS IN A JURY NOTE AND TO INSTRUCT THE JURY ON A LEGAL ISSUE THAT HAD NOT BEEN RAISED BEFORE AND COULD NOT, THEREFORE, HAVE BEEN ADDRESSED BY DEFENSE COUNSEL IN SUMMATION (FOURTH DEPT))

DEFENDANT’S ABSENCE FROM AN IN CAMERA INTERVIEW WITH A JUROR CONCERNING POSSIBLE DISQUALIFICATION WAS NOT SHOWN TO HAVE HAD A SUBSTANTIAL EFFECT ON THE DEFENDANT’S ABILITY TO DEFEND AGAINST THE CHARGES (SECOND DEPT).

The Second Department determined defendant’s right to be present at all material stages of the trial was not violated by his absence from an in camera interview with a sworn juror about possible disqualification:

The defendant’s right to be present at all material stages of the trial was not violated by his absence from an in camera interview with a sworn juror, conducted in the presence of the prosecutor and defense counsel, to determine whether there was a possible juror disqualification. Although a defendant has a statutory right to be present at all material stages of the trial … , this right is only a qualified right where the proceedings involved are ancillary … . A conference to determine whether a sworn juror should be excluded … is an ancillary proceeding … . As such, the defendant’s presence is required only if it could have had “a substantial effect on [his or her] ability to defend against the charges” … , or “where defendant has something valuable to contribute” …  Given that the issue of whether a seated juror is grossly unqualified is, generally, a legal determination… , and, given the circumstances presented here, there is no basis to conclude that the defendant’s presence at the in camera interview would have had a substantial effect on the defendant’s ability to defend against the charges, or that the defendant would have made a valuable contribution to the proceeding … . People v Robinson, 2018 NY Slip Op 05496, Second Dept 7-25-18

CRIMINAL LAW (DEFENDANT’S ABSENCE FROM AN IN CAMERA INTERVIEW WITH A JUROR CONCERNING POSSIBLE DISQUALIFICATION WAS NOT SHOWN TO HAVE HAD A SUBSTANTIAL EFFECT ON THE DEFENDANT’S ABILITY TO DEFEND AGAINST THE CHARGES (SECOND DEPT))/MATERIAL STAGE (CRIMINAL LAW, DEFENDANT’S ABSENCE FROM AN IN CAMERA INTERVIEW WITH A JUROR CONCERNING POSSIBLE DISQUALIFICATION WAS NOT SHOWN TO HAVE HAD A SUBSTANTIAL EFFECT ON THE DEFENDANT’S ABILITY TO DEFEND AGAINST THE CHARGES (SECOND DEPT))/JUROR DISQUALIFICATION DEFENDANT’S ABSENCE FROM AN IN CAMERA INTERVIEW WITH A JUROR CONCERNING POSSIBLE DISQUALIFICATION WAS NOT SHOWN TO HAVE HAD A SUBSTANTIAL EFFECT ON THE DEFENDANT’S ABILITY TO DEFEND AGAINST THE CHARGES (SECOND DEPT))

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OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT).

The Third Department, over a dissent, determined the officer who stopped the car in which defendant was a passenger had a reasonable basis to frisk the defendant for safety. The frisk resulted in the seizure of a handgun. At the time of the frisk, the officer knew the defendant was out past his parole curfew and suspected defendant had violated his conditions of parole by consuming alcohol. In addition, defendant was riding in an unregistered car and the driver did not have a license:

A suspect’s status as a parolee is a relevant factor to consider when evaluating the reasonableness of a particular search or seizure  … , particularly where, as here, the officer had reason to believe that defendant was then and there violating both the curfew and alcohol conditions of his parole. The hour was late and the driver was driving an unregistered vehicle without a license. Defendant’s evasive, if not flippant, “sales” response as to why he was on parole, coupled with his repeated denial of alcohol use, heightened the volatility of the situation. Cumulatively, these factors validate County Court’s conclusion that the officer had a reasonable basis to conduct the frisk to assure his own safety … . People v Carey, 2018 NY Slip Op 05376, Third Dept 7-19-18

CRIMINAL LAW (OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/EVIDENCE (STREET STOPS, OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/STREET STOPS (FRISK, OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/PAT DOWN SEARCH  (OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/EVIDENCE (STREET STOPS, OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/SEARCH AND SEIZURE (PAT DOWN SEARCH, OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/SUPPRESSION (PAT DOWN SEARCH, OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/EVIDENCE (STREET STOPS, OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/FRISK (PAT DOWN SEARCH, OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))

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HARMLESS ERROR TO ADMIT EVIDENCE OF PRIOR CRIMES, HARMLESS ERROR TO PROHIBIT CROSS-EXAMINATION OF ARRESTING OFFICER ABOUT A SETTLED FEDERAL CIVIL RIGHTS SUIT, STATEMENTS MADE BY DEFENDANT NOT ADMISSIBLE AS PRIOR CONSISTENT STATEMENTS OR AS EVIDENCE OF STATE OF MIND, EVIDENTIARY ARGUMENT NOT RAISED BELOW OR ON APPEAL CANNOT BE CONSIDERED (SECOND DEPT).

The Second Department, over a dissent, affirmed defendant’s conviction for possession of a weapon. In a comprehensive decision too detailed to fairly summarize here the court ruled: the stop of the vehicle in which defendant was a passenger was justified by traffic infractions; the officer’s noticing pictures of firearms on defendant’s phone and the butt of a handgun on defendant’s hip justified asking defendant to step out of the car; defendant’s statement as he got out of the car that he had a handgun on him was admissible; defendant was not entitled to put in evidence his prior statements about his intent to turn the weapon in at the police station; pictures of handguns from defendant’s phone that did not relate to the handgun which was the subject of the possession charge should not have been admitted (harmless error); and defense counsel should have been allowed to cross-examine one of the arresting officers about a federal civil rights suit which had been settled which alleged misconduct with regard to an arrest (harmless error). The court rejected the arguments that the prior statements about turning the handgun in should have been admitted as prior consistent statements or under the state of mind exception to the hearsay rule:

… [A]s an essential part of its case-in-chief, the prosecution elicited, through the testimony of a police officer, the defendant’s statement regarding his intent to surrender the gun. As was his right, the defendant elected not to take the stand and subject himself to cross-examination, instead relying upon the officer’s testimony to establish his defense of temporary lawful possession of the weapon. Having so elected, he foreclosed any possibility that the prosecutor would cross-examine him and challenge his defense as a recent fabrication during such questioning. Thus, since the requisite claim of a recent fabrication was absent, the defendant could not adduce evidence of a prior consistent statement to rebut it … . * * *

… [O]our dissenting colleague instead primarily argues that [the] proffered testimony regarding the defendant’s alleged statement to her of his intention to surrender the gun should have been admitted as evidence of the defendant’s state of mind rather than for the truth of its contents, thereby obviating any hearsay objection. However, the defendant never advanced this “state of mind” argument at the trial level, nor does he currently contend on this appeal that his purported statement to Armstrong should have been admitted as evidence of his state of mind. Accordingly, this issue is both unpreserved for appellate review … and not before this Court for consideration on the present appeal … . People v Watson, 2018 NY Slip Op 05342, Second Dept 7-18-18

CRIMINAL LAW (EVIDENCE, HARMLESS ERROR TO ADMIT EVIDENCE OF PRIOR CRIMES, HARMLESS ERROR TO PROHIBIT CROSS-EXAMINATION OF ARRESTING OFFICER ABOUT A SETTLED FEDERAL CIVIL RIGHTS SUIT, STATEMENTS MADE BY DEFENDANT NOT ADMISSIBLE AS PRIOR CONSISTENT STATEMENTS OR AS EVIDENCE OF STATE OF MIND (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, HARMLESS ERROR TO ADMIT EVIDENCE OF PRIOR CRIMES, HARMLESS ERROR TO PROHIBIT CROSS-EXAMINATION OF ARRESTING OFFICER ABOUT A SETTLED FEDERAL CIVIL RIGHTS SUIT, STATEMENTS MADE BY DEFENDANT NOT ADMISSIBLE AS PRIOR CONSISTENT STATEMENTS OR AS EVIDENCE OF STATE OF MIND (SECOND DEPT))/APPEALS (CRIMINAL LAW, HARMLESS ERROR TO ADMIT EVIDENCE OF PRIOR CRIMES, HARMLESS ERROR TO PROHIBIT CROSS-EXAMINATION OF ARRESTING OFFICER ABOUT A SETTLED FEDERAL CIVIL RIGHTS SUIT, STATEMENTS MADE BY DEFENDANT NOT ADMISSIBLE AS PRIOR CONSISTENT STATEMENTS OR AS EVIDENCE OF STATE OF MIND, EVIDENTIARY ARGUMENT NOT RAISED BELOW OR ON APPEAL CANNOT BE CONSIDERED (SECOND DEPT))/PRIOR CRIMES  (EVIDENCE, HARMLESS ERROR TO ADMIT EVIDENCE OF PRIOR CRIMES, HARMLESS ERROR TO PROHIBIT CROSS-EXAMINATION OF ARRESTING OFFICER ABOUT A SETTLED FEDERAL CIVIL RIGHTS SUIT, STATEMENTS MADE BY DEFENDANT NOT ADMISSIBLE AS PRIOR CONSISTENT STATEMENTS OR AS EVIDENCE OF STATE OF MIND (SECOND DEPT))/MOLINEUX HARMLESS ERROR TO ADMIT EVIDENCE OF PRIOR CRIMES, HARMLESS ERROR TO PROHIBIT CROSS-EXAMINATION OF ARRESTING OFFICER ABOUT A SETTLED FEDERAL CIVIL RIGHTS SUIT, STATEMENTS MADE BY DEFENDANT NOT ADMISSIBLE AS PRIOR CONSISTENT STATEMENTS OR AS EVIDENCE OF STATE OF MIND (SECOND DEPT))/POLICE OFFICERS (CROSS-EXAMINATION, HARMLESS ERROR TO ADMIT EVIDENCE OF PRIOR CRIMES, HARMLESS ERROR TO PROHIBIT CROSS-EXAMINATION OF ARRESTING OFFICER ABOUT A SETTLED FEDERAL CIVIL RIGHTS SUIT, STATEMENTS MADE BY DEFENDANT NOT ADMISSIBLE AS PRIOR CONSISTENT STATEMENTS OR AS EVIDENCE OF STATE OF MIND (SECOND DEPT))/PRIOR CONSISTENT STATEMENT HARMLESS ERROR TO ADMIT EVIDENCE OF PRIOR CRIMES, HARMLESS ERROR TO PROHIBIT CROSS-EXAMINATION OF ARRESTING OFFICER ABOUT A SETTLED FEDERAL CIVIL RIGHTS SUIT, STATEMENTS MADE BY DEFENDANT NOT ADMISSIBLE AS PRIOR CONSISTENT STATEMENTS OR AS EVIDENCE OF STATE OF MIND (SECOND DEPT))/STATE OF MIND (HEARSAY, , HARMLESS ERROR TO ADMIT EVIDENCE OF PRIOR CRIMES, HARMLESS ERROR TO PROHIBIT CROSS-EXAMINATION OF ARRESTING OFFICER ABOUT A SETTLED FEDERAL CIVIL RIGHTS SUIT, STATEMENTS MADE BY DEFENDANT NOT ADMISSIBLE AS PRIOR CONSISTENT STATEMENTS OR AS EVIDENCE OF STATE OF MIND (SECOND DEPT))/HEARSAY (HARMLESS ERROR TO ADMIT EVIDENCE OF PRIOR CRIMES, HARMLESS ERROR TO PROHIBIT CROSS-EXAMINATION OF ARRESTING OFFICER ABOUT A SETTLED FEDERAL CIVIL RIGHTS SUIT, STATEMENTS MADE BY DEFENDANT NOT ADMISSIBLE AS PRIOR CONSISTENT STATEMENTS OR AS EVIDENCE OF STATE OF MIND (SECOND DEPT))

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WAIVER OF APPEAL INVALID, DESPITE DEFENDANT’S SIGNING OF A WRITTEN WAIVER (SECOND DEPT).

The Second Department determined defendant’s waiver of the right to appeal was invalid, despite his signing a written waiver. The court noted that an appellate court cannot exercise its interest of justice jurisdiction where there is a valid waiver of appeal:

The Supreme Court did not provide the defendant with an adequate explanation of the nature of the right to appeal or the consequences of waiving that right … . The court failed to advise the defendant that he would ordinarily retain the right to appeal even after pleading guilty, but that in this case he was being asked to voluntarily relinquish that right as a condition of the plea agreement … . Moreover, the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal … .

Although the record on appeal reflects that the defendant signed a written appeal waiver form, a written waiver “is not a complete substitute for an on-the-record explanation of the nature of the right to appeal”… . While the written waiver in this case “expressly provided that the court had informed the defendant about the nature of his right to appeal, that representation is contradicted by the oral colloquy”… . Rather, the record reflects that the Supreme Court’s colloquy regarding the written waiver amounted to nothing more than “a simple confirmation that the defendant signed [it]”… . The transcript of the plea proceedings shows that the court did not ascertain on the record whether the defendant had read the written waiver or discussed it with defense counsel, or whether he was even aware of its contents… . Under the circumstances here, we conclude that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal … . People v Alston, 2018 NY Slip Op 05327, Second Dept 7-18-18

CRIMINAL LAW (APPEALS, WAIVER OF APPEAL INVALID, DESPITE DEFENDANT’S SIGNING OF A WRITTEN WAIVER (SECOND DEPT))/APPEALS (CRIMINAL LAW, WAIVER OF APPEAL INVALID, DESPITE DEFENDANT’S SIGNING OF A WRITTEN WAIVER (SECOND DEPT))/WAIVER (APPEALS, CRIMINAL LAW, WAIVER OF APPEAL INVALID, DESPITE DEFENDANT’S SIGNING OF A WRITTEN WAIVER (SECOND DEPT))

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NEW YORK CITY DEPARTMENT OF CORRECTIONS WAS A NECESSARY PARTY TO THIS JAIL TIME CALCULATION PROCEEDING, ISSUE CAN BE RAISED FOR THE FIRST TIME ON APPEAL, MATTER REVERSED AND REMITTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the New York City Department of Corrections (NYCDOC) was a necessary party in this proceeding contesting a jail time credit calculation. Although the issue was not raised below, a necessary-party issue can be raised for the first time on appeal but may not be corrected by an appellate court:

NYCDOC is a necessary party to this proceeding “because petitioner is seeking additional credit for jail time spent in correctional facilities in New York City [under NYCDOC] and, if petitioner is successful, [NYCDOC’s] commissioner will be required, pursuant to . . . Correction Law [§ 600-a], to recompute petitioner’s jail time and deliver a certified transcript of the record of petitioner’s jail time”…

While respondent did not raise this issue in Supreme Court, it is well-established that “‘a court may always consider whether there has been a failure to join a necessary party’, including on its own motion, and for the first time on appeal” … . As this Court “may not, on its own initiative, add or direct the addition of a party[,] . . . the matter must be remitted to Supreme Court to order [NYCDOC] to be joined if [it] is subject to the jurisdiction of the court and, if not, to permit [its] joinder by stipulation, motion or otherwise and, if joinder cannot be effectuated, the court must then determine whether the proceeding should be permitted to proceed in the absence of [a] necessary part[y]” … . Matter of Velez v New York State, Dept. of Corr. & Community Supervision, 2018 NY Slip Op 05243, Third Dept 7-11-18

CIVIL PROCEDURE (NECESSARY PARTY, NEW YORK CITY DEPARTMENT OF CORRECTIONS WAS A NECESSARY PARTY TO THIS JAIL TIME CALCULATION PROCEEDING, ISSUE CAN BE RAISED FOR THE FIRST TIME ON APPEAL, MATTER REVERSED AND REMITTED (THIRD DEPT))/CPLR 1001 (NECESSARY PARTY, NEW YORK CITY DEPARTMENT OF CORRECTIONS WAS A NECESSARY PARTY TO THIS JAIL TIME CALCULATION PROCEEDING, ISSUE CAN BE RAISED FOR THE FIRST TIME ON APPEAL, MATTER REVERSED AND REMITTED (THIRD DEPT))/NECESSARY PARTY (CIVIL PROCEDURE, APPEALS, NEW YORK CITY DEPARTMENT OF CORRECTIONS WAS A NECESSARY PARTY TO THIS JAIL TIME CALCULATION PROCEEDING, ISSUE CAN BE RAISED FOR THE FIRST TIME ON APPEAL, MATTER REVERSED AND REMITTED (THIRD DEPT))/CRIMINAL LAW (JAIL TIME CREDIT CALCULATION, (NECESSARY PARTY, NEW YORK CITY DEPARTMENT OF CORRECTIONS WAS A NECESSARY PARTY TO THIS JAIL TIME CALCULATION PROCEEDING, ISSUE CAN BE RAISED FOR THE FIRST TIME ON APPEAL, MATTER REVERSED AND REMITTED (THIRD DEPT))/NEW YORK CITY DEPARTMENT OF CORRECTIONS (NYCDOC) (JAIL TIME CREDIT CALCULATION, (NECESSARY PARTY, NEW YORK CITY DEPARTMENT OF CORRECTIONS WAS A NECESSARY PARTY TO THIS JAIL TIME CALCULATION PROCEEDING, ISSUE CAN BE RAISED FOR THE FIRST TIME ON APPEAL, MATTER REVERSED AND REMITTED (THIRD DEPT))/APPEALS (NECESSARY PARTY,  NEW YORK CITY DEPARTMENT OF CORRECTIONS WAS A NECESSARY PARTY TO THIS JAIL TIME CALCULATION PROCEEDING, ISSUE CAN BE RAISED FOR THE FIRST TIME ON APPEAL, MATTER REVERSED AND REMITTED (THIRD DEPT))

WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION (SCI) WERE JURISDICTIONALLY DEFECTIVE, THE SCI DID NOT CONTAIN A CHARGE HELD FOR THE ACTION OF A GRAND JURY OR A LESSER INCLUDED OFFENSE (THIRD DEPT).

The Third Department, reversing defendant’s plea to a superior court information (SCI), determined the SCI did not contain a charge held for the action of a grand jury or a lesser included offense. Therefore the SCI was jurisdictionally defective:

… [T]he waiver of indictment and SCI were jurisdictionally defective because the crime charged in the SCI was not “an[] offense for which . . . defendant was held for action of a grand jury” … , nor was it a lesser included offense of the crimes charged in the felony complaints. On this latter point, “a defendant may waive indictment and plead guilty to an SCI that names a different offense from that charged in the felony complaint only when the crime named in the SCI is a lesser included offense of the original charge”… . “A crime is a lesser included offense of a charge of a higher degree only when in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the very same conduct, committing the lesser offense”… .

Reckless endangerment in the first degree is not a lesser included offense of either menacing a police officer or criminal possession of a weapon in the second degree because it would be entirely possible to possess or display the weapons required to commit either of the greater crimes, i.e., menacing a police officer (see Penal Law § 120.18) or criminal possession of a weapon in the second degree … , without concomitantly “recklessly engag[ing] in conduct [that] creates a grave risk of death to another person” — a required element of reckless endangerment in the first degree … . People v Hulstrunk, 2018 NY Slip Op 05234, Third Dept 7-12-18

CRIMINAL LAW (WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION (SCI) WERE JURISDICTIONALLY DEFECTIVE, THE SCI DID NOT CONTAIN A CHARGE HELD FOR THE ACTION OF A GRAND JURY OR A LESSER INCLUDED OFFENSE (THIRD DEPT))/WAIVER OF INDICTMENT (WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION (SCI) WERE JURISDICTIONALLY DEFECTIVE, THE SCI DID NOT CONTAIN A CHARGE HELD FOR THE ACTION OF A GRAND JURY OR A LESSER INCLUDED OFFENSE (THIRD DEPT))/SUPERIOR COURT INFORMATION (SCI)  (WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION (SCI) WERE JURISDICTIONALLY DEFECTIVE, THE SCI DID NOT CONTAIN A CHARGE HELD FOR THE ACTION OF A GRAND JURY OR A LESSER INCLUDED OFFENSE (THIRD DEPT))/RECKLESS ENDANGERMENT  (WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION (SCI) WERE JURISDICTIONALLY DEFECTIVE, THE SCI DID NOT CONTAIN A CHARGE HELD FOR THE ACTION OF A GRAND JURY OR A LESSER INCLUDED OFFENSE (THIRD DEPT))/MENACING A POLICE OFFICER (WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION (SCI) WERE JURISDICTIONALLY DEFECTIVE, THE SCI DID NOT CONTAIN A CHARGE HELD FOR THE ACTION OF A GRAND JURY OR A LESSER INCLUDED OFFENSE (THIRD DEPT))

IT IS NOT REVERSIBLE ERROR FOR DEFENDANT TO NOT BE PRESENT AT A SIDEBAR WHICH RESULTS IN GRANTING A PEREMPTORY OR FOR CAUSE CHALLENGE TO A JUROR, AN ORDER OF PROTECTION SHOULD NOT HAVE BEEN ISSUED FOR A FACT WITNESS WHO DID NOT ACTUALLY SEE THE SHOOTING (THIRD DEPT).

The Third Department affirmed defendant’s conviction and noted (1) it is not reversible error if defendant is not present at a sidebar which results in the grant of a peremptory or for cause challenge to a juror, and (2) an order of protection cannot be issued on behalf of someone who did not actually witness the crime (here a shooting):

Even if defendant was erroneously excluded from the sidebar conferences, “the error is not reversible if that potential juror has been excused for cause by the court or as a result of a peremptory challenge by the People”… . Because the record makes clear that juror Nos. 104 and 220 were dismissed for cause, remittal for a reconstruction hearing … or reversal for a new trial is not necessary … . * * *

A court may enter an order of protection for the benefit of a witness “who actually witnessed the offense for which defendant was convicted” (…see generally CPL 530.13 [4] [a]). Although Galaska testified that, on the date in question, he saw people screaming and arguing outside his apartment and the victim taking pictures, he further stated that he did not see who shot the victim and also admitted that he did not recognize any of the individuals who were arguing. Because Galaska did not witness the shooting, the order of protection issued in his favor must be vacated. People v Myers, 2018 NY Slip Op 05225, Third Dept 7-12-18

​CRIMINAL LAW (IT IS NOT REVERSIBLE ERROR FOR DEFENDANT TO NOT BE PRESENT AT A SIDEBAR WITH RESULTS IN GRANTING A PEREMPTORY OR FOR CAUSE CHALLENGE TO A JUROR, AN ORDER OF PROTECTION SHOULD NOT HAVE BEEN ISSUED FOR A FACT WITNESS WHO DID NOT ACTUALLY SEE THE SHOOTING (THIRD DEPT))/SIDEBARS (CRIMINAL LAW, (IT IS NOT REVERSIBLE ERROR FOR DEFENDANT TO NOT BE PRESENT AT A SIDEBAR WITH RESULTS IN GRANTING A PEREMPTORY OR FOR CAUSE CHALLENGE TO A JUROR, AN ORDER OF PROTECTION SHOULD NOT HAVE BEEN ISSUED FOR A FACT WITNESS WHO DID NOT ACTUALLY SEE THE SHOOTING (THIRD DEPT))/JURORS (CRIMINAL LAW, (IT IS NOT REVERSIBLE ERROR FOR DEFENDANT TO NOT BE PRESENT AT A SIDEBAR WITH RESULTS IN GRANTING A PEREMPTORY OR FOR CAUSE CHALLENGE TO A JUROR, AN ORDER OF PROTECTION SHOULD NOT HAVE BEEN ISSUED FOR A FACT WITNESS WHO DID NOT ACTUALLY SEE THE SHOOTING (THIRD DEPT))/ORDERS OF PROTECTION (CRIMINAL LAW, AN ORDER OF PROTECTION SHOULD NOT HAVE BEEN ISSUED FOR A FACT WITNESS WHO DID NOT ACTUALLY SEE THE SHOOTING (THIRD DEPT))

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