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BRIEF QUESTIONING OF THE DEFENDANT ON A REPRESENTED MATTER WAS SEPARABLE AS A MATTER OF LAW FROM THE QUESTIONING ON AN UNREPRESENTED MATTER (CT APP).

In a brief memorandum, reversing the Appellate Division, the Court of Appeals determined brief questioning of defendant on a matter on which defendant was represented by counsel was separable as a matter of law from the interrogation on an unrepresented matter. There was no discussion of the facts of the case:

… [T]he impermissible questioning of defendant on a represented matter was so brief, flippant, and minimal that it was discrete and fairly separable as a matter of law from the interrogation of defendant on an unrepresented matter (see People v Cohen , 90 NY2d 632, 641 [1997]). People v Silvagnoli, 2018 NY Slip Op 04276, CtApp 6-12-18

CRIMINAL LAW (BRIEF QUESTIONING OF THE DEFENDANT ON A REPRESENTED MATTER WAS SEPARABLE AS A MATTER OF LAW FROM THE QUESTIONING ON AN UNREPRESENTED MATTER (CT APP))/ATTORNEYS (CRIMINAL LAW, BRIEF QUESTIONING OF THE DEFENDANT ON A REPRESENTED MATTER WAS SEPARABLE AS A MATTER OF LAW FROM THE QUESTIONING ON AN UNREPRESENTED MATTER (CT APP))/RIGHT TO COUNSEL (BRIEF QUESTIONING OF THE DEFENDANT ON A REPRESENTED MATTER WAS SEPARABLE AS A MATTER OF LAW FROM THE QUESTIONING ON AN UNREPRESENTED MATTER (CT APP))

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ALTHOUGH DEFENDANT WAS REPRESENTED ON A MARIJUANA CHARGE, QUESTIONING ABOUT AN UNRELATED MURDER DID NOT VIOLATE DEFENDANT’S RIGHT TO COUNSEL, APPELLATE DIVISION SHOULD NOT HAVE SUPPRESSED DEFENDANT’S STATEMENT ABOUT THE MURDER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the Appellate Division, determined defendant’s right to counsel was not violated when he was questioned about a murder while he was represented on an unrelated marijuana charge. Defendant was stopped for traffic violations and arrested when marijuana was found in the car he was driving, a black Hyundai with tinted windows.  An attorney was assigned for the marijuana charge.  A BlackBerry found in the car was subsequently traced to a robbery where a black Hyundai with tinted windows was seen. According to a witness to a shooting, unrelated to the robbery, the shooter arrived and sped away in a black Hyundai with tinted windows. Defendant, when he was represented only on the marijuana charge, was questioned about the robbery and the murder and admitted to being the get-away driver. Supreme Court allowed defendant’s statement about the murder in evidence and defendant was convicted of murder. The Appellate Division held that the statement about the murder should have been suppressed because the robbery and the marijuana charge were related and Supreme Court had suppressed the statement about the robbery. The Court of Appeals held that the proper analysis required looking at the marijuana charge and the murder, not the marijuana charge and the robbery. Because the marijuana charge was completely unrelated to the murder, questioning about the murder did not violate defendant’s right to counsel:

​Under Cohen [90 NY2d 632] the relevant comparison is between the unrepresented and the represented charges. The first category concerns whether “questioning on the unrepresented matter would all but inevitably elicit incriminating responses regarding the matter in which there had been an entry of counsel”… . The purpose of the rule is to protect the right to counsel once it has attached; if the questioning on the unrepresented charge will inevitably lead to statements about the represented charge, the statements should be suppressed. However, if the relationship between the unrepresented and the represented charges is insufficient, then “discrete questioning [on the unrepresented charge] by a police officer mindful and respectful of the indelible attachment of defendant’s right to counsel [on the represented charge] would not [] create[] any serious risk of incriminating responses as to the latter crime[]” … . Thus, the question the Appellate Division should have considered is whether the murder charge was sufficiently related to the marijuana charge. No evidence in the record would support that claim; indeed, even [defendant] does not press it. People v Henry, 2018 NY Slip Op 04275, CtApp 6-12-18

CRIMINAL LAW (RIGHT TO COUNSEL, ALTHOUGH DEFENDANT WAS REPRESENTED ON A MARIJUANA CHARGE, QUESTIONING ABOUT AN UNRELATED MURDER DID NOT VIOLATE DEFENDANT’S RIGHT TO COUNSEL, APPELLATE DIVISION SHOULD NOT HAVE SUPPRESSED DEFENDANT’S STATEMENT ABOUT THE MURDER (CT APP))/ATTORNEYS (RIGHT TO COUNSEL, ALTHOUGH DEFENDANT WAS REPRESENTED ON A MARIJUANA CHARGE, QUESTIONING ABOUT AN UNRELATED MURDER DID NOT VIOLATE DEFENDANT’S RIGHT TO COUNSEL, APPELLATE DIVISION SHOULD NOT HAVE SUPPRESSED DEFENDANT’S STATEMENT ABOUT THE MURDER (CT APP))/RIGHT TO COUNSEL ( ALTHOUGH DEFENDANT WAS REPRESENTED ON A MARIJUANA CHARGE, QUESTIONING ABOUT AN UNRELATED MURDER DID NOT VIOLATE DEFENDANT’S RIGHT TO COUNSEL, APPELLATE DIVISION SHOULD NOT HAVE SUPPRESSED DEFENDANT’S STATEMENT ABOUT THE MURDER (CT APP))/EVIDENCE (CRIMINAL LAW, ALTHOUGH DEFENDANT WAS REPRESENTED ON A MARIJUANA CHARGE, QUESTIONING ABOUT AN UNRELATED MURDER DID NOT VIOLATE DEFENDANT’S RIGHT TO COUNSEL, APPELLATE DIVISION SHOULD NOT HAVE SUPPRESSED DEFENDANT’S STATEMENT ABOUT THE MURDER (CT APP))/SUPPRESSION (CRIMINAL LAW, STATEMENTS, RIGHT TO COUNSEL, LTHOUGH DEFENDANT WAS REPRESENTED ON A MARIJUANA CHARGE, QUESTIONING ABOUT AN UNRELATED MURDER DID NOT VIOLATE DEFENDANT’S RIGHT TO COUNSEL, APPELLATE DIVISION SHOULD NOT HAVE SUPPRESSED DEFENDANT’S STATEMENT ABOUT THE MURDER (CT APP))

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DEFENDANT’S PRE-MIRANDA STATEMENT SHOULD HAVE BEEN SUPPRESSED, DEFENDANT DEMONSTRATED HE WAS NOT COMPETENT TO TESTIFY AT THE GRAND JURY, HIS GRAND JURY TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the portion of defendant’s videotaped statement that was allowed in evidence should have been suppressed, and the jury should not have heard defendant’s grand jury testimony because he was not competent to testify at the time:

… [T]he court erred in suppressing only a portion of his videotaped statement to police investigators inasmuch as the portion of the statement that the court refused to suppress was also obtained prior to the administration of Miranda warnings. Although the court properly determined that defendant was in custody from the outset of the interview, we conclude that the court erred in determining that Miranda warnings were not required before defendant admitted to having a foot fetish inasmuch as “the facts indicated that an interrogational environment existed” from the outset of the interview … . …

Although a defendant is presumed to be competent to testify before the grand jury … , here, we conclude that defendant rebutted that presumption. Indeed, defendant’s grand jury testimony, a rambling, delusional and bizarre narrative of government conspiracy, prompted one grand juror to inquire of defendant whether he had any psychiatric diagnoses. Within days of his testimony at the grand jury, the arraigning court referred defendant for a CPL article 730 psychiatric examination based upon what the court described as “confused, or bizarre behavior” and the inability “to understand charges or court processes.” Shortly thereafter, two psychiatric examiners found that defendant lacked capacity to understand the proceedings against him or to assist in his defense based upon a diagnosis of Delusional Disorder, Paranoid Type. As a result, defendant was involuntarily committed to a psychiatric facility under the auspices of the Office of Mental Health. We thus conclude that defendant rebutted the presumption of competence, and that the court abused its discretion in denying the motion to preclude the grand jury testimony … . People v Perri, 2018 NY Slip Op 04134, Fourth Dept 6-8-18

CRIMINAL LAW (DEFENDANT’S PRE-MIRANDA STATEMENT SHOULD HAVE BEEN SUPPRESSED, DEFENDANT DEMONSTRATED HE WAS NOT COMPETENT TO TESTIFY AT THE GRAND JURY, HIS GRAND JURY TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, DEFENDANT’S PRE-MIRANDA STATEMENT SHOULD HAVE BEEN SUPPRESSED, DEFENDANT DEMONSTRATED HE WAS NOT COMPETENT TO TESTIFY AT THE GRAND JURY, HIS GRAND JURY TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE (FOURTH DEPT))/SUPPRESS, MOTION TO  (DEFENDANT’S PRE-MIRANDA STATEMENT SHOULD HAVE BEEN SUPPRESSED, DEFENDANT DEMONSTRATED HE WAS NOT COMPETENT TO TESTIFY AT THE GRAND JURY, HIS GRAND JURY TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE (FOURTH DEPT))/STATEMENTS (CRIMINAL LAW, PRE-MIRANDA, DEFENDANT’S PRE-MIRANDA STATEMENT SHOULD HAVE BEEN SUPPRESSED, DEFENDANT DEMONSTRATED HE WAS NOT COMPETENT TO TESTIFY AT THE GRAND JURY, HIS GRAND JURY TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE (FOURTH DEPT))/MIRANDA (CRIMINAL LAW, PRE-MIRANDA, DEFENDANT’S PRE-MIRANDA STATEMENT SHOULD HAVE BEEN SUPPRESSED, DEFENDANT DEMONSTRATED HE WAS NOT COMPETENT TO TESTIFY AT THE GRAND JURY, HIS GRAND JURY TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE (FOURTH DEPT))/GRAND JURY (DEFENDANT DEMONSTRATED HE WAS NOT COMPETENT TO TESTIFY AT THE GRAND JURY, HIS GRAND JURY TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE (FOURTH DEPT))/COMPETENCE (CRIMINAL LAW, GRAND JURY TESTIMONY, DEFENDANT DEMONSTRATED HE WAS NOT COMPETENT TO TESTIFY AT THE GRAND JURY, HIS GRAND JURY TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE (FOURTH DEPT))

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EVIDENCE OF CONSTRUCTIVE POSSESSION OF DRUGS IN AN APARTMENT LEGALLY INSUFFICIENT, CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction for possession of a controlled substance, determined the circumstantial evidence of constructive possession of the drugs found in an apartment was legally insufficient:​

Although defendant was present in the apartment at the time when the police executed the search warrant, “no evidence was presented to establish that defendant was an occupant of the apartment or that [she] regularly frequented it”… . The People relied primarily on the trial testimony of a police investigator, who testified that defendant was listed in the records management system of the Utica Police Department (UPD) as living at the apartment. The investigator acknowledged on cross-examination, however, that he did not know how the UPD obtained that information and that the information in the records management system is not always current or even accurate. The investigator also testified that he surveilled the building in which the apartment was located “hundreds” of times over the course of a three-week investigation, and that he observed defendant “at that location” only twice. Although the investigator testified that “typical women’s clothing” was found in the apartment, he failed to offer specifics except for three pairs of footwear, which he believed might fit defendant. By contrast, he testified in detail about men’s underwear and men’s deodorant found in a dresser drawer, men’s work boots piled near the dresser, and men’s sweatshirts hanging over a couch. Photographs of the clothing were received in evidence, and those photographs did not depict any “typical women’s clothing,” with the possible exception of one or two pairs of footwear. People v Williams, 2018 NY Slip Op 04173, Fourth Dept 6-8-18

CRIMINAL LAW (EVIDENCE OF CONSTRUCTIVE POSSESSION OF DRUGS IN AN APARTMENT LEGALLY INSUFFICIENT, CONVICTION REVERSED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, (EVIDENCE OF CONSTRUCTIVE POSSESSION OF DRUGS IN AN APARTMENT LEGALLY INSUFFICIENT, CONVICTION REVERSED (FOURTH DEPT))/CONSTRUCTIVE POSSESSION (CRIMINAL LAW, (EVIDENCE OF CONSTRUCTIVE POSSESSION OF DRUGS IN AN APARTMENT LEGALLY INSUFFICIENT, CONVICTION REVERSED (FOURTH DEPT))

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DEFENDANT ENTITLED TO A HEARING ON HIS INEFFECTIVE ASSISTANCE ALLEGATIONS IN HIS MOTIONS TO VACATE HIS CONVICTIONS, EVEN THOSE ALLEGATIONS THAT COULD HAVE BEEN RAISED ON APPEAL (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant was entitled to a hearing on his motions to vacate his convictions on ineffective assistance grounds. The Fourth Department noted that, where some of the allegations of ineffective assistance are outside the record, a hearing on a motion to vacate can encompass all allegations of ineffective assistance, even those which could have been raised on appeal:

Where, as here, “an ineffective assistance of counsel claim involves . . . mixed claims’ relating to both record-based and nonrecord-based issues . . . [, such] claim may be brought in a collateral proceeding, whether or not the [defendant] could have raised the claim on direct appeal” … . In such situations, i.e., where the “claim of ineffective assistance of counsel cannot be resolved without reference to matter outside of the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety” … . That is because “each alleged shortcoming or failure by defense counsel should not be viewed as a separate ground or issue raised upon the motion’ . . . Rather, a defendant’s claim of ineffective assistance of counsel constitutes a single ground or issue upon which relief is requested’ “.. . In other words, “such a claim constitutes a single, unified claim that must be assessed in totality” … . …

… “[D]efendant established that there were sufficient questions of fact . . . whether [trial counsel] had an adequate explanation’ for [her] failure to pursue certain lines of defense on cross-examination or for [her] failure to call an expert on defendant’s behalf, and defendant is therefore entitled to an opportunity to establish that [he] was deprived of meaningful legal representation’ ” … . For example, defense counsel failed to address at trial evidence in the medical records that tended to disprove allegations of penetration. We also note that defendant presented sworn allegations supporting his contention that DNA buccal swabs were taken from him by the use of excessive force. Such an allegation, if true, would support suppression of the damaging DNA evidence had such a motion been made … . No such motion was made, and “[s]uch a failure, in the absence of a reasonable explanation for it, is hard to reconcile with a defendant’s constitutional right to . . . effective assistance of counsel” … . People v Wilson, 2018 NY Slip Op 04233, Fourth Dept 6-8-18

CRIMINAL LAW (VACATE CONVICTION, MOTION TO, INEFFECTIVE ASSISTANCE, DEFENDANT ENTITLED TO A HEARING ON HIS INEFFECTIVE ASSISTANCE ALLEGATIONS IN HIS MOTIONS TO VACATE HIS CONVICTIONS, EVEN THOSE ALLEGATIONS THAT COULD HAVE BEEN RAISED ON APPEAL (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT ENTITLED TO A HEARING ON HIS INEFFECTIVE ASSISTANCE ALLEGATIONS IN HIS MOTIONS TO VACATE HIS CONVICTIONS, EVEN THOSE ALLEGATIONS THAT COULD HAVE BEEN RAISED ON APPEAL (FOURTH DEPT))/APPEALS (CRIMINAL LAW, MOTION TO VACATE CONVICTION, INEFFECTIVE ASSISTANCE, DEFENDANT ENTITLED TO A HEARING ON HIS INEFFECTIVE ASSISTANCE ALLEGATIONS IN HIS MOTIONS TO VACATE HIS CONVICTIONS, EVEN THOSE ALLEGATIONS THAT COULD HAVE BEEN RAISED ON APPEAL (FOURTH DEPT))/INEFFECTIVE ASSISTANCE (VACATE CONVICTION, MOTION TO, DEFENDANT ENTITLED TO A HEARING ON HIS INEFFECTIVE ASSISTANCE ALLEGATIONS IN HIS MOTIONS TO VACATE HIS CONVICTIONS, EVEN THOSE ALLEGATIONS THAT COULD HAVE BEEN RAISED ON APPEAL (FOURTH DEPT))/VACATE CONVICTION, MOTION TO ( INEFFECTIVE ASSISTANCE, DEFENDANT ENTITLED TO A HEARING ON HIS INEFFECTIVE ASSISTANCE ALLEGATIONS IN HIS MOTIONS TO VACATE HIS CONVICTIONS, EVEN THOSE ALLEGATIONS THAT COULD HAVE BEEN RAISED ON APPEAL (FOURTH DEPT))

DEFENDANT WAS NOT IN CUSTODY WHEN HIS STATEMENTS WERE MADE, SUPPRESSION MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to suppress his statements should not have been granted. The People demonstrated defendant was not in custody when the statements were made:

“In determining whether a defendant was in custody for Miranda purposes, [t]he test is not what the defendant thought, but rather what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant’s position’ ” … . We reject defendant’s contention that the People failed to meet their “burden of showing that [he] voluntarily went to the [detectives’ office] where he allegedly made the inculpatory statements”… . Indeed, the People “properly demonstrated by unchallenged hearsay testimony” that defendant voluntarily accompanied the officers to the detectives’ office for questioning and, inasmuch as defendant did not dispute that fact in either his motion papers or his arguments on the motion, that testimony was sufficient to sustain the People’s burden … . We further conclude that defendant was not in custody when he made the statements because he was informed that he was not under arrest and that he would be going home that day, he was not handcuffed, he was permitted to leave the interview room several times, he never asked to leave the office nor was he told that he could not leave, and he was not arrested that day … . People v Bell-Scott, 2018 NY Slip Op 04192, Fourth Dept 6-8-18

​CRIMINAL LAW (SUPPRESS STATEMENTS, DEFENDANT WAS NOT IN CUSTODY WHEN HIS STATEMENTS WERE MADE, SUPPRESSION MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW, STATEMENTS, DEFENDANT WAS NOT IN CUSTODY WHEN HIS STATEMENTS WERE MADE, SUPPRESSION MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/CUSTODY (CRIMINAL LAW, STATEMENTS,  DEFENDANT WAS NOT IN CUSTODY WHEN HIS STATEMENTS WERE MADE, SUPPRESSION MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))​

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DECISION WITHHELD AND PEOPLE DIRECTED TO PROVIDE DEFENSE APPELLATE COUNSEL WITH TRIAL EXHIBITS COUNSEL WAS UNABLE TO ACCESS (THIRD DEPT).

The Third Department withheld decision and directed the People to provide defense counsel with certain trial exhibits counsel was unable to access prior to perfecting the appeal:

Defendant contends, among other things, that the People deprived him of an opportunity to develop an effective argument on appeal by failing to provide him with certain video and photographic exhibits that were introduced into evidence at trial in a format that he could readily view … . Specifically, defendant avers that, although the People provided him with copies of 14 DVDs introduced as exhibits at trial, he was unable to view the contents of exhibit Nos. 9, 10, 11, 12, 13, 14, 18 and 108.

Defendant has a “fundamental right to appellate review of a criminal conviction” … and, to that end, it is well-settled that the People “‘must provide a record of trial sufficient to enable a defendant to present reviewable issues on appeal'” … . Here, there is no dispute that the subject exhibits were admitted into evidence, were viewed by the juries at both of defendant’s trials and are now a part of the record from which defendant may prepare his appellate arguments and this Court may conduct meaningful appellate review. Based upon our own efforts to view these exhibits, we find defendant’s observation to have merit. People v Haggray, 2018 NY Slip Op 04036, Third Dept 6-7-18

CRIMINAL LAW DECISION WITHHELD AND PEOPLE DIRECTED TO PROVIDE DEFENSE APPELLATE COUNSEL WITH TRIAL EXHIBITS COUNSEL WAS UNABLE TO ACCESS (THIRD DEPT))/APPEALS (CRIMINAL LAW, DECISION WITHHELD AND PEOPLE DIRECTED TO PROVIDE DEFENSE APPELLATE COUNSEL WITH TRIAL EXHIBITS COUNSEL WAS UNABLE TO ACCESS (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, APPEALS, DECISION WITHHELD AND PEOPLE DIRECTED TO PROVIDE DEFENSE APPELLATE COUNSEL WITH TRIAL EXHIBITS COUNSEL WAS UNABLE TO ACCESS (THIRD DEPT))

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DEFENDANT DID NOT MOVE TO SUPPRESS INFORMATION OBTAINED FROM HIS CELL PHONE, COUNTY COURT ERRED IN SUPPRESSING THAT EVIDENCE, SUPPRESSION MOTION SHOULD HAVE BEEN DENIED (THIRD DEPT).

The Third Department, in an appeal by the People of a suppression ruling, determined the suppression motion should have been denied in its entirety. Defendant never made a motion to suppress information taken from his cell phone. Yet County Court apparently speculated that the police must have searched defendant’s cell phone before the Miranda warnings were given:

… [T]he detectives approached defendant outside his place of employment and asked him to accompany them to the police station. Defendant voluntarily agreed and they drove him to the station without placing him in handcuffs. The videotaped statement indicates that, during the ride and before entering the interview room, they engaged in general conversation regarding defendant’s background, education, employment and family life, but did not discuss the criminal investigation. Inside the interview room, defendant was initially not restrained. The detectives asked if he would like water and provided him a drink. Later, they obtained a cigarette and allowed him to smoke it, and permitted him to make a phone call. At the beginning of the conversation in the interview room, a detective administered Miranda warnings and defendant stated that he was willing to talk to them and answer questions. Defendant was not threatened or coerced during the interview.

County Court did not rely on these facts, but instead focused on what it deemed “the troubling and unavoidable issue that, prior to entering the interview room and prior to Miranda warnings, . . . defendant’s phone had already been seized by the police.” The court highlighted the People’s failure at the hearing to address this seizure of the phone even though, as discussed above, the People were not on notice that anything related to the phone was being challenged by defendant. The court chastised the People for failing to acknowledge or explain “the circumstances under which . . . defendant’s phone was seized and potentially searched, pre-Miranda.” The record contains no factual support for, and actually belies, the court’s speculative assertion that the phone was searched before Miranda warnings were administered, because the video shows that, when the detective eventually brought the phone into the interview room and obtained defendant’s consent to look at some of its features, defendant had to unlock the phone with either a password or swiping pattern. People v Moore, 2018 NY Slip Op 04042, Third Dept 6-7-18

CRIMINAL LAW (SUPPRESSION, DEFENDANT DID NOT MOVE TO SUPPRESS INFORMATION OBTAINED FROM HIS CELL PHONE, COUNTY COURT ERRED IN SUPPRESSING THAT EVIDENCE, SUPPRESSION MOTION SHOULD HAVE BEEN DENIED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, DEFENDANT DID NOT MOVE TO SUPPRESS INFORMATION OBTAINED FROM HIS CELL PHONE, COUNTY COURT ERRED IN SUPPRESSING THAT EVIDENCE, SUPPRESSION MOTION SHOULD HAVE BEEN DENIED (THIRD DEPT))/APPEALS (CRIMINAL LAW, SUPPRESSION, PEOPLE’S APPEAL,  DEFENDANT DID NOT MOVE TO SUPPRESS INFORMATION OBTAINED FROM HIS CELL PHONE, COUNTY COURT ERRED IN SUPPRESSING THAT EVIDENCE, SUPPRESSION MOTION SHOULD HAVE BEEN DENIED (THIRD DEPT))/SUPPRESSION (CRIMINAL LAW, DEFENDANT DID NOT MOVE TO SUPPRESS INFORMATION OBTAINED FROM HIS CELL PHONE, COUNTY COURT ERRED IN SUPPRESSING THAT EVIDENCE, SUPPRESSION MOTION SHOULD HAVE BEEN DENIED (THIRD DEPT))/SEARCH AND SEIZURE (SUPPRESSION, DEFENDANT DID NOT MOVE TO SUPPRESS INFORMATION OBTAINED FROM HIS CELL PHONE, COUNTY COURT ERRED IN SUPPRESSING THAT EVIDENCE, SUPPRESSION MOTION SHOULD HAVE BEEN DENIED (THIRD DEPT))

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UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE MAJORITY DETERMINED THE EVIDENCE OF SERIOUS PHYSICAL INJURY IN THIS ASSAULT FIRST PROSECUTION WAS INSUFFICIENT (THIRD DEPT).

The Third Department, over a partial two-justice dissent, determined the evidence did not support the serious physical injury element of assault first and reduced the conviction to attempted assault first. The victim was shot in the leg. The dissenters argued the serious physical injury element had been proven. The majority focused on weaknesses of the evidence of serious physical injury and found it deficient under a weight of the evidence analysis:

… [T]he weight of the evidence does not support a finding that the victim sustained a serious physical injury. Serious physical injury is defined as a “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 or impairment of the function of any bodily organ” … . As to whether the victim sustained a physical injury that created a substantial risk of death, the victim testified that, following the shooting, he was in “miraculous pain,” he underwent two surgeries, his tibia bone was “shattered” and pins were inserted to hold the bones in place. The pins, however, were removed four months after their insertion, at which point the pain subsided. The victim then wore a cast on his leg for 1½ months. Although the victim’s injuries are by no means trivial, they fall short of constituting injuries that create a substantial risk of death. There was no evidence that the victim lost consciousness after being shot or that a vital organ was damaged. Nor was there any proof, lay or medical, indicating that the victim’s injuries caused a substantial risk of death or were life threatening … .

* * * … [A]lthough the victim’s testimony and the photographs show a significant injury immediately following the shooting, there was no corresponding proof regarding its long-term effects … . …​

As to whether the victim sustained a serious and protracted disfigurement, we note that the victim showed his scar to the jury. There was, however, no contemporaneous description of what the jury saw to demonstrate the extent of such scarring, nor can such extent be discerned from the photographs entered into evidence … . People v Marshall, 2018 NY Slip Op 04038, Third Dept 6-7-18

CRIMINAL LAW (ASSAULT, SERIOUS PHYSICAL INJURY, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE MAJORITY DETERMINED THE EVIDENCE OF SERIOUS PHYSICAL INJURY IN THIS ASSAULT FIRST PROSECUTION WAS INSUFFICIENT (THIRD DEPT))/ASSAULT (SERIOUS PHYSICAL INJURY, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE MAJORITY DETERMINED THE EVIDENCE OF SERIOUS PHYSICAL INJURY IN THIS ASSAULT FIRST PROSECUTION WAS INSUFFICIENT (THIRD DEPT))/SERIOUS PHYSICAL INJURY (ASSAULT, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE MAJORITY DETERMINED THE EVIDENCE OF SERIOUS PHYSICAL INJURY IN THIS ASSAULT FIRST PROSECUTION WAS INSUFFICIENT (THIRD DEPT))/WEIGHT OF THE EVIDENCE ( UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE MAJORITY DETERMINED THE EVIDENCE OF SERIOUS PHYSICAL INJURY IN THIS ASSAULT FIRST PROSECUTION WAS INSUFFICIENT (THIRD DEPT))

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DEFENDANT WAS ERRONEOUSLY TOLD BY HIS ATTORNEY A CERTIFICATE OF RELIEF FROM CIVIL DISABILITIES WOULD PROTECT DEFENDANT FROM DEPORTATION, MOTION TO VACATE DEFENDANT’S CONVICTION BY GUILTY PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction by guilty plea should have been granted. Defendant’s attorney erroneously told defendant a certificate of relief from civil liabilities would protect defendant from deportation:

Defendant pleaded guilty to a felony relating to the sale of drugs in return for a promised sentence of five years’ probation with a certificate of relief from civil disabilities. The record establishes that defense counsel advised defendant that even though this type of conviction would be likely to result in deportation, the certificate of relief would protect him from that consequence. Counsel’s advice about the effect of the certificate was clearly erroneous because defendant’s conviction was a deportable offense, from which a certificate of relief provides no shield. The plea and sentencing minutes, including statements made by counsel, corroborate defendant’s claim that he was misadvised about the certificate.

Defendant has demonstrated a reasonable probability that he would not have pleaded guilty and would have gone to trial had he known that the plea would have rendered him deportable despite the certificate… . Statements he made during the plea proceeding and the hearing support his claims that he pled guilty because the plea offer involved no jail time and because he was misled as to the immigration consequences. People v Rosario, 2018 NY Slip Op 04114, First Dept 6-7-18​

CRIMINAL LAW (DEFENDANT WAS ERRONEOUSLY TOLD BY HIS ATTORNEY A CERTIFICATE OF RELIEF FROM CIVIL DISABILITIES WOULD PROTECT DEFENDANT FROM DEPORTATION, MOTION TO VACATE DEFENDANT’S CONVICTION BY GUILTY PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENDANT WAS ERRONEOUSLY TOLD BY HIS ATTORNEY A CERTIFICATE OF RELIEF FROM CIVIL DISABILITIES WOULD PROTECT DEFENDANT FROM DEPORTATION, MOTION TO VACATE DEFENDANT’S CONVICTION BY GUILTY PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))/INEFFECTIVE ASSISTANCE (DEFENDANT WAS ERRONEOUSLY TOLD BY HIS ATTORNEY A CERTIFICATE OF RELIEF FROM CIVIL DISABILITIES WOULD PROTECT DEFENDANT FROM DEPORTATION, MOTION TO VACATE DEFENDANT’S CONVICTION BY GUILTY PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))/VACATE CONVICTION, MOTION TO (DEFENDANT WAS ERRONEOUSLY TOLD BY HIS ATTORNEY A CERTIFICATE OF RELIEF FROM CIVIL DISABILITIES WOULD PROTECT DEFENDANT FROM DEPORTATION, MOTION TO VACATE DEFENDANT’S CONVICTION BY GUILTY PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))/GUILT PLEA (VACATE, MOTION TO, DEFENDANT WAS ERRONEOUSLY TOLD BY HIS ATTORNEY A CERTIFICATE OF RELIEF FROM CIVIL DISABILITIES WOULD PROTECT DEFENDANT FROM DEPORTATION, MOTION TO VACATE DEFENDANT’S CONVICTION BY GUILTY PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))/IMMIGRATION LAW (CRIMINAL LAW, DEPORTATION, DEFENDANT WAS ERRONEOUSLY TOLD BY HIS ATTORNEY A CERTIFICATE OF RELIEF FROM CIVIL DISABILITIES WOULD PROTECT DEFENDANT FROM DEPORTATION, MOTION TO VACATE DEFENDANT’S CONVICTION BY GUILTY PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))/DEPORTATION (CRIMINAL LAW, DEFENDANT WAS ERRONEOUSLY TOLD BY HIS ATTORNEY A CERTIFICATE OF RELIEF FROM CIVIL DISABILITIES WOULD PROTECT DEFENDANT FROM DEPORTATION, MOTION TO VACATE DEFENDANT’S CONVICTION BY GUILTY PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))/CERTIFICATE OF RELIEF FROM CIVIL DISABILITIES  (DEFENDANT WAS ERRONEOUSLY TOLD BY HIS ATTORNEY A CERTIFICATE OF RELIEF FROM CIVIL DISABILITIES WOULD PROTECT DEFENDANT FROM DEPORTATION, MOTION TO VACATE DEFENDANT’S CONVICTION BY GUILTY PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))

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