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NO APPEAL LIES FROM THE DENIAL OF A REPORTER’S MOTION TO QUASH SUBPOENAS ISSUED IN A CRIMINAL ACTION BECAUSE THERE IS NO STATUTORY AUTHORITY IN THE CRIMINAL PROCEDURE LAW FOR SUCH AN APPEAL, THE SUBPOENAS SOUGHT THE REPORTER’S APPEARANCE AT TRIAL AND NOTES OF THE REPORTER’S POST-ARREST INTERVIEW WITH THE DEFENDANT, IN CONTRAST, HAD THE SUBPOENAS BEEN ISSUED PRIOR TO THE COMMENCEMENT OF CRIMINAL PROCEEDINGS, THE MOTION TO QUASH WOULD HAVE BEEN CIVIL IN NATURE AND THE DENIAL APPEALABLE (CT APP).

The Court of Appeals, in a memorandum decision which sparked two dissenting opinions involving three judges, determined no appeal lies from the denial of a nonparty’s motion to quash a subpoena issued in a criminal action because there is no statutory authority for such an appeal. In contrast, the same motion brought prior to the commencement of a criminal action is civil in nature and is appealable. Here a reporter interviewed the defendant who had confessed in 2013 to the murder of a four-year-old girl in 1991. The reporter wrote a story stating that the defendant alleged his confession was not truthful. The subpoenas sought the appearance of the reporter at trial and the notes of the interview.  The trial court for the most part denied the motions to quash. The Appellate Division reversed without addressing the jurisdictional issue:

The critical distinction between orders addressing subpoenas that precede, as opposed to follow, the commencement of a criminal action is grounded in the plain language of the CPL, which governs “[a]ll criminal actions and proceedings” … . Specifically, a “criminal action commences . . . with the filing of an accusatory instrument against a defendant in a criminal court” … , and a “criminal proceeding” includes “any proceeding which (a) constitutes a part of a criminal action or (b) occurs in a criminal court and is related to a . . . criminal action . . . or involves a criminal investigation” … . Definitionally, an order resolving a motion to quash a subpoena that is issued prior to the filing of an accusatory instrument does not arise within the context of a “criminal action.” Moreover, while such an order may relate to a criminal investigation, when issued in a court of general jurisdiction prior to the commencement of a criminal action, it “arises . . . on the civil side of the court”… . Therefore, an order resolving a motion to quash a subpoena falls outside of the ambit of the CPL—and its concomitant limitations upon appellate review—when the order is issued before a criminal action begins. Review of an order issued in the investigatory stage does not undermine the legislative aim of “limit[ing] appellate proliferation in criminal matters”… insofar as appellate practice at this stage cannot be said to intrude significantly upon a criminal action that may never be commenced. The order here, however, issued after the accusatory instrument was filed, plainly arose in a “criminal action” within the meaning of that term as prescribed by the CPL. Matter of People v Juarez, 2018 NY Slip Op 04684, CtApp 6-27-18

​CRIMINAL LAW (NO APPEAL LIES FROM THE DENIAL OF A REPORTER’S MOTION TO QUASH SUBPOENAS ISSUED IN A CRIMINAL ACTION BECAUSE THERE IS NO STATUTORY AUTHORITY IN THE CRIMINAL PROCEDURE LAW FOR SUCH AN APPEAL, THE SUBPOENAS SOUGHT THE REPORTER’S APPEARANCE AT TRIAL AND NOTES OF THE REPORTER’S POST-ARREST INTERVIEW WITH THE DEFENDANT, IN CONTRAST, HAD THE SUBPOENAS BEEN ISSUED PRIOR TO THE COMMENCEMENT OF CRIMINAL PROCEEDINGS, THE MOTION TO QUASH WOULD HAVE BEEN CIVIL IN NATURE AND THE DENIAL APPEALABLE (CT APP))/APPEALS (CRIMINAL LAW, SUBPOENAS, NO APPEAL LIES FROM THE DENIAL OF A REPORTER’S MOTION TO QUASH SUBPOENAS ISSUED IN A CRIMINAL ACTION BECAUSE THERE IS NO STATUTORY AUTHORITY IN THE CRIMINAL PROCEDURE LAW FOR SUCH AN APPEAL, THE SUBPOENAS SOUGHT THE REPORTER’S APPEARANCE AT TRIAL AND NOTES OF THE REPORTER’S POST-ARREST INTERVIEW WITH THE DEFENDANT, IN CONTRAST, HAD THE SUBPOENAS BEEN ISSUED PRIOR TO THE COMMENCEMENT OF CRIMINAL PROCEEDINGS, THE MOTION TO QUASH WOULD HAVE BEEN CIVIL IN NATURE AND THE DENIAL APPEALABLE (CT APP))/CIVIL PROCEDURE (APPEALS, SUBPOENAS, NO APPEAL LIES FROM THE DENIAL OF A REPORTER’S MOTION TO QUASH SUBPOENAS ISSUED IN A CRIMINAL ACTION BECAUSE THERE IS NO STATUTORY AUTHORITY IN THE CRIMINAL PROCEDURE LAW FOR SUCH AN APPEAL, THE SUBPOENAS SOUGHT THE REPORTER’S APPEARANCE AT TRIAL AND NOTES OF THE REPORTER’S POST-ARREST INTERVIEW WITH THE DEFENDANT, IN CONTRAST, HAD THE SUBPOENAS BEEN ISSUED PRIOR TO THE COMMENCEMENT OF CRIMINAL PROCEEDINGS, THE MOTION TO QUASH WOULD HAVE BEEN CIVIL IN NATURE AND THE DENIAL APPEALABLE (CT APP))/SUBPOENAS, MOTION TO QUASH (CRIMINAL LAW, APPEALS, NO APPEAL LIES FROM THE DENIAL OF A REPORTER’S MOTION TO QUASH SUBPOENAS ISSUED IN A CRIMINAL ACTION BECAUSE THERE IS NO STATUTORY AUTHORITY IN THE CRIMINAL PROCEDURE LAW FOR SUCH AN APPEAL, THE SUBPOENAS SOUGHT THE REPORTER’S APPEARANCE AT TRIAL AND NOTES OF THE REPORTER’S POST-ARREST INTERVIEW WITH THE DEFENDANT, IN CONTRAST, HAD THE SUBPOENAS BEEN ISSUED PRIOR TO THE COMMENCEMENT OF CRIMINAL PROCEEDINGS, THE MOTION TO QUASH WOULD HAVE BEEN CIVIL IN NATURE AND THE DENIAL APPEALABLE (CT APP))/QUASH SUBPOENAS, MOTION TO (CRIMINAL LAW, APPEALS, NO APPEAL LIES FROM THE DENIAL OF A REPORTER’S MOTION TO QUASH SUBPOENAS ISSUED IN A CRIMINAL ACTION BECAUSE THERE IS NO STATUTORY AUTHORITY IN THE CRIMINAL PROCEDURE LAW FOR SUCH AN APPEAL, THE SUBPOENAS SOUGHT THE REPORTER’S APPEARANCE AT TRIAL AND NOTES OF THE REPORTER’S POST-ARREST INTERVIEW WITH THE DEFENDANT, IN CONTRAST, HAD THE SUBPOENAS BEEN ISSUED PRIOR TO THE COMMENCEMENT OF CRIMINAL PROCEEDINGS, THE MOTION TO QUASH WOULD HAVE BEEN CIVIL IN NATURE AND THE DENIAL APPEALABLE (CT APP))

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CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT).

The Second Department, reversing defendant’s child pornography convictions and dismissing the indictment, determined the convictions were against the weight of the evidence. The defendant, who speaks Spanish, gave a written statement in English acknowledging he had downloaded child pornography. However, it was revealed at trial that the police provided information that was in the statement and made changes to the statement without defendant’s permission. The defendant had waived a pre-trial Huntley hearing on the voluntariness of the statement, informing the judge he intended to challenge the voluntariness of the statement at trial. The judge, in this bench trial, erroneously ruled defendant had waived his right to challenge the statement a trial. The defendant testified that he did not download the child pornography and that he gave the statement to protect a family member. A family member testified and admitted “unintentionally” downloading the files. Defendant produced evidence he was at work when at least two of the files were downloaded:

The convictions were based on the defendant’s alleged acts of downloading and/or sharing 15 video files and 2 still images, on multiple dates. The People introduced into evidence, inter alia, a written statement in English that the defendant made to law enforcement officials. In that statement, the defendant acknowledged having downloaded approximately 5 videos containing child pornography; he did not specify the names or descriptions of the materials, or the dates of the actions. The defendant’s written statement included the name of the program used to download contraband materials to this computer, as well as a term allegedly used in titles of child pornography files, but a police investigator acknowledged that he had supplied those terms. Apart from the defendant’s statement to the police, the prosecution adduced no other evidence showing that it was the defendant who had downloaded and/or shared the subject materials, consisting of 15 video files and 2 still photographs, on specific dates and times. …

Although we ordinarily accord great deference to the factfinder’s opportunity to view the witnesses, hear the testimony, and observe demeanor…, under the circumstances of this case, we give no deference to the County Court’s assessment of the defendant’s credibility on the issue of the voluntariness of his statements to law enforcement officials, as the court erroneously precluded the defendant from contesting the voluntariness of the written statement during the trial, contrary to his statutory and constitutional right to do so … . People v Vasquez, 2018 NY Slip Op 04761, Second Dept 6-27-18

CRIMINAL LAW (CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT))/APPEALS (CRIMINAL LAW, WEIGHT OF THE EVIDENCE, CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT))/CHILD PORNOGRAPHY (CRIMINAL LAW, CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT))/VOLUNTARINESS OF STATEMENT (CRIMINAL LAW, CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT))/HUNTLEY HEARING LAW (CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT))

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BENCH TRIAL JUDGE’S RESCINDING OF THE RULING DEFENSE COUNSEL COULD GIVE A SUMMATION IN THIS MISDEMEANOR CASE VIOLATED DEFENDANT’S SIXTH AMENDMENT RIGHT TO COUNSEL, RULING IS APPEALABLE BECAUSE DEFENSE COUNSEL DID NOT HAVE THE MEANINGFUL ABILITY TO OBJECT (CT APP).

The Court of Appeals, reversing the Appellate Term, determined the bench trial judge had deprived defendant of his Sixth Amendment right to counsel in this misdemeanor case by first ruling defense counsel could give a summation and then rescinding that ruling. The court further determined the judge’s action was appealable because defense counsel did not have an opportunity to object:

We conclude that defendant’s claim is reviewable on appeal. The trial court, in specifically ruling that defendant’s permission to deliver a summation was rescinded and concomitantly rendering a verdict, deprived defense counsel of a practical ability to timely and meaningfully object to the court’s ruling of law … .

Turning to the merits, the United States Supreme Court has held that New York’s former CPL 320.20 (3) (c) violated a defendant’s Sixth Amendment right to counsel by allowing the trial court the discretion whether to grant defense counsel the opportunity to give a summation in nonjury trials on indictments … . In this single judge trial on a class B misdemeanor, the trial court’s imposition of a sentence of 90 days in jail required that defendant be afforded the right to counsel at the trial under the Sixth Amendment… . That right was violated when the court denied defense counsel the opportunity to present summation … . People v Harris, 2018 NY Slip Op 04667, CtApp 6-26-18

​CRIMINAL LAW (BENCH TRIAL JUDGE’S RESCINDING OF THE RULING DEFENSE COUNSEL COULD GIVE A SUMMATION IN THIS MISDEMEANOR CASE VIOLATED DEFENDANT’S SIXTH AMENDMENT RIGHT TO COUNSEL, RULING IS APPEALABLE BECAUSE DEFENSE COUNSEL DID NOT HAVE THE MEANINGFUL ABILITY TO OBJECT (CT APP))/APPEALS (CRIMINAL LAW, (BENCH TRIAL JUDGE’S RESCINDING OF THE RULING DEFENSE COUNSEL COULD GIVE A SUMMATION IN THIS MISDEMEANOR CASE VIOLATED DEFENDANT’S SIXTH AMENDMENT RIGHT TO COUNSEL, RULING IS APPEALABLE BECAUSE DEFENSE COUNSEL DID NOT HAVE THE MEANINGFUL ABILITY TO OBJECT (CT APP))/ATTORNEYS (CRIMINAL LAW, RIGHT TO COUNSEL, BENCH TRIAL JUDGE’S RESCINDING OF THE RULING DEFENSE COUNSEL COULD GIVE A SUMMATION IN THIS MISDEMEANOR CASE VIOLATED DEFENDANT’S SIXTH AMENDMENT RIGHT TO COUNSEL, RULING IS APPEALABLE BECAUSE DEFENSE COUNSEL DID NOT HAVE THE MEANINGFUL ABILITY TO OBJECT (CT APP))/RIGHT TO COUNSEL  (BENCH TRIAL JUDGE’S RESCINDING OF THE RULING DEFENSE COUNSEL COULD GIVE A SUMMATION IN THIS MISDEMEANOR CASE VIOLATED DEFENDANT’S SIXTH AMENDMENT RIGHT TO COUNSEL, RULING IS APPEALABLE BECAUSE DEFENSE COUNSEL DID NOT HAVE THE MEANINGFUL ABILITY TO OBJECT (CT APP))

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DEFENDANT ABSCONDED DURING TRIAL, WAS INVOLUNTARILY RETURNED ON A WARRANT 20 YEARS LATER, AND FILED HIS APPELLATE BRIEF 30 YEARS AFTER CONVICTION, APPEAL DISMISSED FOR FAILURE TO PROSECUTE (FIRST DEPT).

The First Department dismissed the appeal of the defendant who had absconded during trial, was subsequently returned on a warrant 20 years later, and filed his brief 30 years after conviction:

The People seek to dismiss defendant’s appeal based on the “failure of timely prosecution or perfection thereof,” pursuant to CPL 470.60(1). Where a defendant’s appeal remained pending for a long time while he or she was a fugitive, whether the appeal should be permitted to proceed once the defendant is returned to custody is “subject to the broad discretion of the Appellate Division”… . In exercising its discretion, the Appellate Division may consider factors including whether defendant’s flight caused “a significant interference with the operation of [the] appellate process”; whether defendant’s absence “so delayed the administration of justice that the People would be prejudiced in locating witnesses and presenting evidence at any retrial should the defendant be successful on appeal”; the length of the defendant’s absence; whether the defendant “voluntarily surrendered”; and the merits of the appeal …

Applying these standards, we exercise our discretion to dismiss the appeal. There was an extensive delay — more than 27 years — from June 12, 1987, when counsel, on defendant’s behalf, filed a notice of appeal, until September 2014, when defendant sought poor person relief and assignment of counsel, and defendant finally filed his appellate brief in June 2017, 30 years after his conviction. The delay was caused entirely by defendant’s own conduct in absconding from trial, and remaining a fugitive for close to 20 years. Defendant did not surrender voluntarily; rather, he was returned involuntarily on the warrant after being arrested and convicted under another name in Massachusetts. An important transcript and the court file, each of which has a bearing on issues defendant seeks to raise on appeal, have been lost, and it is unreasonable to expect a court to preserve such materials forever. The delay of over 30 years would severely prejudice the People if required to retry the case after appeal. Thus, these factors demonstrate that dismissal is appropriate … . We also note that this Court has fully complied with the requirement … that this determination be made after appellate counsel has been assigned and permitted to review the record. People v Perez, 2018 NY Slip Op 04669, First Dept 6-25-18

​CRIMINAL LAW (APPEALS, DEFENDANT ABSCONDED DURING TRIAL, WAS INVOLUNTARILY RETURNED ON A WARRANT 20 YEARS LATER, AND FILED HIS APPELLATE BRIEF 30 YEARS AFTER CONVICTION, APPEAL DISMISSED FOR FAILURE TO PROSECUTE (FIRST DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT ABSCONDED DURING TRIAL, WAS INVOLUNTARILY RETURNED ON A WARRANT 20 YEARS LATER, AND FILED HIS APPELLATE BRIEF 30 YEARS AFTER CONVICTION, APPEAL DISMISSED FOR FAILURE TO PROSECUTE (FIRST DEPT))/FUGITIVES (CRIMINAL LAW, APPEALS, DEFENDANT ABSCONDED DURING TRIAL, WAS INVOLUNTARILY RETURNED ON A WARRANT 20 YEARS LATER, AND FILED HIS APPELLATE BRIEF 30 YEARS AFTER CONVICTION, APPEAL DISMISSED FOR FAILURE TO PROSECUTE (FIRST DEPT))

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DEFENDANT DID NOT HAVE STATUTORY AUTHORITY TO APPEAL COUNTY COURT’S RULING GIVING THE DISTRICT ATTORNEY ACCESS TO A PRE-SENTENCE INVESTIGATION REPORT (PSI) RELATING TO DEFENDANT’S PRIOR CONVICTION (THIRD DEPT)

The Third Department, in a full-fledged opinion by Justice Devine, determined that the defendant did not have statutory authorization to appeal from a ruling by County Court which allowed the prosecutor access to a pre-sentence investigation report (PSI) prepared in connection with defendant’s prior conviction:

Defendant pleaded guilty to attempted criminal possession of a weapon in the third degree in Saratoga County, and a presentence investigation report (hereinafter PSI) was prepared for County Court prior to his 2006 sentencing. Several years later, an indictment was handed up in Schenectady County charging defendant with various offenses. The Schenectady County District Attorney believed that the PSI contained information relevant to the new criminal action and, as a result, applied to County Court for the limited disclosure and use of the PSI. County Court granted that request, prompting this appeal by defendant. * * *

… [T]he Schenectady County District Attorney’s Office applied for disclosure of the PSI with the aim of using it in a pending criminal action against defendant. The application therefore “relate[s] to a prospective, pending or completed criminal action” so as to constitute a criminal matter, and statutory authorization is required to appeal from any order emanating from it (CPL 1.20 [18] [b]). No such authorization can be found in CPL 450.10 or 450.15 and, thus, the present appeal must be dismissed … . People v Young, 2018 NY Slip Op 04596, Third Dept 6-21-18

​CRIMINAL LAW (DEFENDANT DID NOT HAVE STATUTORY AUTHORITY TO APPEAL COUNTY COURT’S RULING GIVING THE DISTRICT ATTORNEY ACCESS TO A PRE-SENTENCE INVESTIGATION REPORT (PSI) RELATING TO DEFENDANT’S PRIOR CONVICTION (THIRD DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT DID NOT HAVE STATUTORY AUTHORITY TO APPEAL COUNTY COURT’S RULING GIVING THE DISTRICT ATTORNEY ACCESS TO A PRE-SENTENCE INVESTIGATION REPORT (PSI) RELATING TO DEFENDANT’S PRIOR CONVICTION (THIRD DEPT)).PRE-SENTENCE INVESTIGATION REPORT (PSI) (DEFENDANT DID NOT HAVE STATUTORY AUTHORITY TO APPEAL COUNTY COURT’S RULING GIVING THE DISTRICT ATTORNEY ACCESS TO A PRE-SENTENCE INVESTIGATION REPORT (PSI) RELATING TO DEFENDANT’S PRIOR CONVICTION (THIRD DEPT))

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PETITIONER ENTITLED TO RENEWED STATUTE OF LIMITATIONS UNDER THE SON OF SAM LAW TO SEEK FUNDS IN THE CONVICTED MURDERER’S INMATE ACCOUNT, THE INMATE’S EARNED AND UNEARNED INCOME ARE AVAILABLE FOR RECOVERY (THIRD DEPT).

The Third Department determined petitioner was entitled to the renewed statute of limitations under the Son of Sam Law to seek earned and unearned income in the account of an inmate convicted of murder in 1986:

Generally, a crime victim of a violent felony offense has 10 years from the date of the crime to bring a civil action against the individual convicted of said crime to recover money damages for any injury or loss resulting therefrom (see CPLR 213-b [2]; Executive Law § 632-a [1] [d], [e] [i] [A]; Penal Law § 70.02 [1] [a]). The Son of Sam Law, however, creates a renewed limitations period whereby a crime victim may bring an action within three years of the discovery of “funds of a convicted person” (Executive Law § 632-a [3]). Here, the subject crimes occurred in 1986 … , thus, the statute of limitations has long since passed. Contrary to respondent’s assertion, however, the applicability of the extended statute of limitations provided for in Executive Law § 632-a (3) is not tethered to the $10,000 requirement that triggers the notice provisions of the statute… . Moreover, although Executive Law § 632-a does not statutorily mandate the type of notice that was provided for here, it does not prohibit it either. Thus, having received notice of newly discovered “funds of a convicted person” … , respondent’s victims are entitled to the benefit of the extended limitations period, without regard to the amount of funds in respondent’s inmate account.

Next, to the extent that respondent argues that his earned income should be excluded from any future recovery, and, thus, excluded from the purview of the subject preliminary injunction, this Court has previously held that “[t]he distinction between earned and unearned income is relevant only to determine whether petitioner must be notified, and has no effect on the ability of a crime victim or a victim’s representative to recover such income in a civil action” … . Matter of New York State Off. of Victim Servs. v Vigo, 2018 NY Slip Op 04608, Third Dept 6-21-18

​CRIMINAL LAW (SON OF SAM LAW, PETITIONER ENTITLED TO RENEWED STATUTE OF LIMITATIONS UNDER THE SON OF SAM LAW TO SEEK FUNDS IN THE CONVICTED MURDERER’S INMATE ACCOUNT, THE INMATE’S EARNED AND UNEARNED INCOME ARE AVAILABLE FOR RECOVERY (THIRD DEPT))/SON OF SAM LAW (PETITIONER ENTITLED TO RENEWED STATUTE OF LIMITATIONS UNDER THE SON OF SAM LAW TO SEEK FUNDS IN THE CONVICTED MURDERER’S INMATE ACCOUNT, THE INMATE’S EARNED AND UNEARNED INCOME ARE AVAILABLE FOR RECOVERY (THIRD DEPT))/CIVIL PROCEDURE (SON OF SAM LAW,  PETITIONER ENTITLED TO RENEWED STATUTE OF LIMITATIONS UNDER THE SON OF SAM LAW TO SEEK FUNDS IN THE CONVICTED MURDERER’S INMATE ACCOUNT, THE INMATE’S EARNED AND UNEARNED INCOME ARE AVAILABLE FOR RECOVERY (THIRD DEPT))

THERE WAS GOOD CAUSE FOR THE 31 YEAR DELAY IN INDICTING DEFENDANT FOR MURDER (SECOND DEPT).

The Second Department determined there was good cause for a 31 year delay in indicting the defendant for murder:

Cecil Schiff (hereinafter the decedent) was murdered in September 1980 during a robbery of his apartment. With no eyewitnesses and no match to latent fingerprints that were recovered from the crime scene, the investigation stalled. In 2008, a detective with the New York City Police Department’s Latent Print Unit randomly selected the case for fingerprint analysis, and determined that the defendant’s fingerprints matched three fingerprints recovered from a jewelry box and two other boxes found in the decedent’s bedroom. Further investigation revealed that the defendant, who was a 17-year-old high school student at the time of the murder, was absent from school on the day of the murder. The defendant was arrested and indicted in 2012, more than 31 years after the crime was committed.  * * *

… [A] significant amount of the delay was due to a lack of evidence identifying a viable suspect. After the defendant’s fingerprints were matched to the fingerprints recovered from the three boxes in the decedent’s bedroom, further investigation was conducted. The People had a good-faith basis to wait until they had sufficient evidence to arrest the defendant. Accordingly, we agree with the Supreme Court’s determination that the People met their burden of demonstrating good cause for the delay … . The reasons for the delay establishing the People’s good cause, the nature of the crime, and the fact that there was no period of pre-indictment incarceration in connection with this matter outweigh the extent of the delay. The court appropriately balanced the requisite factors in denying the defendant’s motion to dismiss the indictment … . People v Mattison, 2018 NY Slip Op 04569, Second Dept 6-20-18

​CRIMINAL LAW (PRE-INDICTMENT DELAY, THERE WAS GOOD CAUSE FOR THE 31 YEAR DELAY IN INDICTING DEFENDANT FOR MURDER (SECOND DEPT))/PRE-INDICTMENT DELAY (THERE WAS GOOD CAUSE FOR THE 31 YEAR DELAY IN INDICTING DEFENDANT FOR MURDER (SECOND DEPT))/DELAY, PRE-INDICTMENT (THERE WAS GOOD CAUSE FOR THE 31 YEAR DELAY IN INDICTING DEFENDANT FOR MURDER (SECOND DEPT))

CRIME OF ATTEMPTED ASSAULT IN THE SECOND DEGREE IS A LEGAL IMPOSSIBILITY (SECOND DEPT).

The Second Department vacated defendant’s conviction of attempted assault in the second degree, noting that the crime is a legal impossibility:

The crime of attempted assault in the second degree is a legal impossibility (see Penal Law § 120.05[3]; People v Campbell, 72 NY2d 602, 605…). As correctly conceded by the People, the inclusion of that nonexistent crime in the superior court information constituted a nonwaivable jurisdictional defect, necessitating vacatur of the defendant’s conviction of attempted assault in the second degree, vacatur of the sentence imposed thereon, and dismissal of that count of the superior court information … . People v Jones, 2018 NY Slip Op 04565, Second Dept 6-20-18

​CRIMINAL LAW (CRIME OF ATTEMPTED ASSAULT IN THE SECOND DEGREE IS A LEGAL IMPOSSIBILITY (SECOND DEPT))/ASSAULT (CRIME OF ATTEMPTED ASSAULT IN THE SECOND DEGREE IS A LEGAL IMPOSSIBILITY (SECOND DEPT))/ATTEMPTED ASSAULT  (CRIME OF ATTEMPTED ASSAULT IN THE SECOND DEGREE IS A LEGAL IMPOSSIBILITY (SECOND DEPT))

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FAILURE TO INSTRUCT THE JURY ON TWO REMOTE LESSER INCLUDED OFFENSES WAS HARMLESS ERROR, JURY WAS INSTRUCTED ON THE HIGHEST LESSER INCLUDED OFFENSE AND CONVICTED DEFENDANT OF THE TOP COUNT OF THE INDICTMENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that the trial court’s error in refusing the instruct the jury on manslaughter second and criminally negligent homicide was harmless error. The defendant was charged with murder and the trial court instructed the jury on manslaughter first degree as a lesser included offense. The jury convicted the defendant of both murder and manslaughter first. Because the jury convicted on the top count, and the jury was instructed on the top lesser included offense, the failure to instruct on the more remote lesser included offenses was deemed harmless error. The manslaughter first conviction was reversed as a lesser concurrent count:

As set forth by the Court of Appeals, “where a court charges the next lesser included offense of the crime alleged in the indictment, but refuses to charge lesser degrees than that, . . . the defendant’s conviction of the crime alleged in the indictment forecloses a challenge to the court’s refusal to charge the remote lesser included offenses” (People v Boettcher, 69 NY2d 174, 180 [1987]). The premise underlying a determination of harmless error is that, when a jury convicts the defendant of the top (i.e., highest) charged offense and thereby excludes from the case the next lesser (i.e., intermediate) included offense, the verdict dispels any significant probability that the jury, had it been given the option, would have acquitted the defendant of both the highest and intermediate charged offenses and instead convicted the defendant of the even lesser (i.e., remote) included offense that was erroneously not charged … . Thus, cases applying the analysis set forth in Boettcher hold that where the trial court charges the jury with the highest offense of murder in the second degree and the intermediate offense of manslaughter in the first degree, and the jury convicts the defendant of murder in the second degree, the defendant’s challenge on appeal to the court’s denial of a request to charge the remote offenses of manslaughter in the second degree and/or criminally negligent homicide is foreclosed, i.e., any error is harmless … . People v Mcintosh, 2018 NY Slip Op 04455, Fourth Dept 6-15-18

​CRIMINAL LAW (FAILURE TO INSTRUCT THE JURY ON TWO REMOTE LESSER INCLUDED OFFENSES WAS HARMLESS ERROR, JURY WAS INSTRUCTED ON THE FIRST LESSER INCLUDED OFFENSE AND CONVICTED DEFENDANT OF THE TOP COUNT OF THE INDICTMENT (FOURTH DEPT))/LESSER INCLUDED OFFENSES (FAILURE TO INSTRUCT THE JURY ON TWO REMOTE LESSER INCLUDED OFFENSES WAS HARMLESS ERROR, JURY WAS INSTRUCTED ON THE FIRST LESSER INCLUDED OFFENSE AND CONVICTED DEFENDANT OF THE TOP COUNT OF THE INDICTMENT (FOURTH DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, LESSER INCLUDED OFFENSES, FAILURE TO INSTRUCT THE JURY ON TWO REMOTE LESSER INCLUDED OFFENSES WAS HARMLESS ERROR, JURY WAS INSTRUCTED ON THE FIRST LESSER INCLUDED OFFENSE AND CONVICTED DEFENDANT OF THE TOP COUNT OF THE INDICTMENT (FOURTH DEPT))

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AT THE SUPPRESSION HEARING THE PEOPLE DID NOT PROVE THE VALIDITY OF THE COMMUNICATIONS WITH THE ARRESTING OFFICERS ABOUT THE EXISTENCE OF AN ACTIVE WARRANT FOR DEFENDANT’S ARREST, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the conviction by guilty plea and dismissing the indictment, determined the People did not present sufficient proof at the suppression hearing to allow the suppression court to find there was probable cause for defendant’s arrest. After a traffic stop, defendant was arrested based upon information from the 911 Center and the Cortland Police Department about an active warrant for defendant’s arrest in Cortland. Cocaine seized in a search incident to arrest was the basis for the instant charges against the defendant. The defendant specifically challenged the validity of the communications with the arresting officers concerning the warrant. At the suppression hearing, the People did not present the warrant or any witness with first-hand knowledge about the warrant. The cocaine should have been suppressed:

Despite defendant’s explicit challenge to the reliability of the information justifying his arrest … , the People did not produce the arrest warrant itself prior to the conclusion of the hearing … . Instead, the People relied upon the officer’s testimony concerning his communications with an unidentified person or persons at the 911 Center and his assumptions about how the 911 Center confirmed the existence of an active and valid warrant. That testimony, however, rested “on a pyramid of hearsay, the information having been passed from” the arresting officer to unidentified persons at the 911 Center and the Cortland Police Department and back to the officer… . “In making an arrest, a police officer may rely upon information communicated to him by another police officer that an individual is the subject named in a warrant and should be taken into custody in the execution of the warrant . . . However, if the warrant turns out to be invalid or vacated . . . [,] or nonexistent . . . , any evidence seized as a result of the arrest will be suppressed notwithstanding the reasonableness of the arresting officer’s reliance upon the communication” … . Here, without producing the arrest warrant itself or reliable evidence that the warrant was active and valid, the People did not meet their burden of establishing that defendant’s arrest was based on probable cause … . People v Searight, 2018 NY Slip Op 04466, Fourth Dept 6-15-18

​CRIMINAL LAW (AT THE SUPPRESSION HEARING THE PEOPLE DID NOT PROVE THE VALIDITY OF THE COMMUNICATIONS WITH THE ARRESTING OFFICERS ABOUT THE EXISTENCE OF AN ACTIVE WARRANT FOR DEFENDANT’S ARREST, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, AT THE SUPPRESSION HEARING THE PEOPLE DID NOT PROVE THE VALIDITY OF THE COMMUNICATIONS WITH THE ARRESTING OFFICERS ABOUT THE EXISTENCE OF AN ACTIVE WARRANT FOR DEFENDANT’S ARREST, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/SUPPRESS, MOTION TO (AT THE SUPPRESSION HEARING THE PEOPLE DID NOT PROVE THE VALIDITY OF THE COMMUNICATIONS WITH THE ARRESTING OFFICERS ABOUT THE EXISTENCE OF AN ACTIVE WARRANT FOR DEFENDANT’S ARREST, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

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