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RECORDING OF DEFENDANT’S PHONE CALL MADE WHILE DETAINED PROPERLY SUBPOENAED BY THE PROSECUTION, MOTION COURT PROPERLY DENIED DEFENDANT’S MOTION TO PRECLUDE THE RECORDING (FIRST DEPT).

The First Department determined the recording of a phone call made by defendant while he was detained was properly subpoenaed by the prosecution and defendant’s motion to preclude the recording was properly denied:

The motion court correctly declined to preclude a recorded telephone call that defendant made while detained before trial. Defendant’s challenge to the admissibility of the call, made primarily on Fourth Amendment grounds, is unavailing. Defendant impliedly consented to the recording of the call based on his receipt of multiple forms of notice that his calls would be recorded, and he was not entitled to separate notice that the calls might be subpoenaed by prosecutors… . Recordings of detainees’ calls are made for security purposes, and not for the purpose of gathering evidence. However, like any other nonprivileged evidence that is possessed by a nonparty and is relevant to a litigation, it may be subject to a lawful subpoena. Accordingly, once defendant consented to the recording of his phone calls, and chose nevertheless to make a call containing a damaging statement, he had no reasonable expectation that the call would be immune from being subpoenaed by the prosecution. People v Holmes, 2018 NY Slip Op 04821, First Dept 6-28-18

​CRIMINAL LAW (RECORDING OF DEFENDANT’S PHONE CALL MADE WHILE DETAINED PROPERLY SUBPOENAED BY THE PROSECUTION, MOTION COURT PROPERLY DENIED DEFENDANT’S MOTION TO PRECLUDE THE RECORDING (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, PRISON PHONE CALLS, RECORDING OF DEFENDANT’S PHONE CALL MADE WHILE DETAINED PROPERLY SUBPOENAED BY THE PROSECUTION, MOTION COURT PROPERLY DENIED DEFENDANT’S MOTION TO PRECLUDE THE RECORDING (FIRST DEPT))/PRISON PHONE CALLS (CRIMINAL LAW, EVIDENCE, RECORDING OF DEFENDANT’S PHONE CALL MADE WHILE DETAINED PROPERLY SUBPOENAED BY THE PROSECUTION, MOTION COURT PROPERLY DENIED DEFENDANT’S MOTION TO PRECLUDE THE RECORDING (FIRST DEPT))

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DEFENDANT’S WAIVER OF HIS RIGHT TO APPEAL DEEMED INVALID, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined defendant’s waiver of his right to appeal was invalid:

The Supreme Court did not provide the defendant with an explanation of the nature of the right to appeal or explain the consequences of waiving that right. In addition, nothing in the record shows that the defendant understood the distinction between the right to appeal and other trial rights forfeited incident to his plea of guilty… . While the defendant was represented by counsel during the plea proceedings, counsel did not participate during the proceedings other than to acknowledge to the court that he was the defendant’s attorney, and counsel did not sign the defendant’s written appeal waiver form. Furthermore, although the record on appeal reflects that the defendant signed the 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” … . The court’s colloquy amounted to nothing more than a simple confirmation that the defendant signed the waiver and a conclusory statement that the defendant understood the waiver or was executing it knowingly and voluntarily … . Under the circumstances here, we conclude that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal … . People v Latham, 2018 NY Slip Op 04753, Second Dept 6-27-18

​CRIMINAL LAW (WAIVER OF APPEAL, DEFENDANT’S WAIVER OF HIS RIGHT TO APPEAL DEEMED INVALID, CRITERIA EXPLAINED (SECOND DEPT))/APPEALS (CRIMINAL LAW, WAIVER, DEFENDANT’S WAIVER OF HIS RIGHT TO APPEAL DEEMED INVALID, CRITERIA EXPLAINED (SECOND DEPT))/WAIVER OF APPEAL (CRIMINAL LAW,  DEFENDANT’S WAIVER OF HIS RIGHT TO APPEAL DEEMED INVALID, CRITERIA EXPLAINED (SECOND DEPT))

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TAXI LICENSES ARE NOT PROPERTY WITHIN THE MEANING OF THE GRAND LARCENY STATUTE, ALTHOUGH THE LEGAL INSUFFICIENCY ARGUMENT WAS NOT PRESERVED, DEFENDANT’S GRAND LARCENY CONVICTION WAS VACATED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department vacated defendant’s grand larceny conviction in the interest of justice because the licenses from the NYC Taxi and Limousine Commission (TLC) do not constitute “property” within the meaning of the grand larceny statute:

The defendant’s conviction of grand larceny in the third degree (Penal Law § 155.35[1]) was based on the alleged theft of licenses from the TLC. “A person is guilty of grand larceny in the third degree when he or she steals property and . . . when the value of the property exceeds three thousand dollars” … .. The licenses from the TLC are not considered “property” within the meaning of the statute … . Accordingly, although the defendant’s legal insufficiency claim is unpreserved for appellate review, we vacate his conviction of grand larceny in the third degree and the sentence imposed thereon, and dismiss that count of the indictment as a matter of discretion in the interest of justice … . People v Ishtiaq, 2018 NY Slip Op 04752,, Second Dept 6-27-18

​CRIMINAL LAW (GRAND LARCENY, TAXI LICENSES ARE NOT PROPERTY WITHIN THE MEANING OF THE GRAND LARCENY STATUTE, ALTHOUGH THE LEGAL INSUFFICIENCY ARGUMENT WAS NOT PRESERVED, DEFENDANT’S GRAND LARCENY CONVICTION WAS VACATED IN THE INTEREST OF JUSTICE (SECOND DEPT))/APPEALS (CRIMINAL LAW, TAXI LICENSES ARE NOT PROPERTY WITHIN THE MEANING OF THE GRAND LARCENY STATUTE, ALTHOUGH THE LEGAL INSUFFICIENCY ARGUMENT WAS NOT PRESERVED, DEFENDANT’S GRAND LARCENY CONVICTION WAS VACATED IN THE INTEREST OF JUSTICE (SECOND DEPT))/GRAND LARCENY (TAXI LICENSES ARE NOT PROPERTY WITHIN THE MEANING OF THE GRAND LARCENY STATUTE, ALTHOUGH THE LEGAL INSUFFICIENCY ARGUMENT WAS NOT PRESERVED, DEFENDANT’S GRAND LARCENY CONVICTION WAS VACATED IN THE INTEREST OF JUSTICE (SECOND DEPT))/TAXI LICENSES (CRIMINAL LAW, GRAND LARCENY, TAXI LICENSES ARE NOT PROPERTY WITHIN THE MEANING OF THE GRAND LARCENY STATUTE, ALTHOUGH THE LEGAL INSUFFICIENCY ARGUMENT WAS NOT PRESERVED, DEFENDANT’S GRAND LARCENY CONVICTION WAS VACATED IN THE INTEREST OF JUSTICE (SECOND DEPT))

FAILURE TO PROVIDE NOTICE TO COUNSEL OF THE CONTENTS OF JURY NOTES AND FAILURE TO MAKE A RECORD DEMONSTRATING MEANINGFUL NOTICE REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT).

The Second Department reversed defendant’s convictions and ordered a new trial because the trial judge failed to comply with the strict requirements surrounding providing notice to counsel of the contents of notes sent out by the jury:

Here, on the morning of the first day of deliberations, the Supreme Court received three notes from the jury requesting, among other things, “Judge’s reading of charges of 1st degree & the 4 things we must prove to reach a guilty [verdict] . . . Same thing for 2nd Degree . . . Definition of unreasonable doubt.” The jury also requested the transcript of the testifying accomplice’s testimony. The court did not read the contents of these notes into the record, and there is no indication in the record that the entire contents of the notes otherwise were shared with counsel. Rather, after receiving the notes, the court explained its intended responses to defense counsel and the prosecutor, and then, in the presence of the jury, provided a readback of the requested charges. * * *

Meaningful notice of the content of a jury note “means notice of the actual specific content of the jurors’ request” (People v O’Rama, 78 NY2d at 277…). Where the record fails to establish that the trial court provided counsel with “meaningful notice of the precise content of a substantive juror inquiry, a mode of proceedings error occurs, and reversal is therefore required even in the absence of an objection” … . Because the record here fails to establish that the Supreme Court provided counsel with meaningful notice of the precise content of the subject jury notes, we must reverse the defendant’s convictions and order a new trial. People v Gedeon, 2018 NY Slip Op 04751, Second Dept 6-27-18

​CRIMINAL LAW (JURY NOTES, FAILURE TO PROVIDE NOTICE TO COUNSEL OF THE CONTENTS OF JURY NOTES AND FAILURE TO MAKE A RECORD DEMONSTRATING MEANINGFUL NOTICE REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT))/JURY NOTES (CRIMINAL LAW, FAILURE TO PROVIDE NOTICE TO COUNSEL OF THE CONTENTS OF JURY NOTES AND FAILURE TO MAKE A RECORD DEMONSTRATING MEANINGFUL NOTICE REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT))/O’RAMA (JURY NOTES, FAILURE TO PROVIDE NOTICE TO COUNSEL OF THE CONTENTS OF JURY NOTES AND FAILURE TO MAKE A RECORD DEMONSTRATING MEANINGFUL NOTICE REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT))/CPL 310.30   (JURY NOTES, FAILURE TO PROVIDE NOTICE TO COUNSEL OF THE CONTENTS OF JURY NOTES AND FAILURE TO MAKE A RECORD DEMONSTRATING MEANINGFUL NOTICE REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT))

DEFENDANT’S SIGNING A WRITTEN WAIVER OF THE RIGHT TO AN INDICTMENT BY GRAND JURY MET CONSTITUTIONAL REQUIREMENTS, ALTHOUGH BETTER PRACTICE WOULD INCLUDE ELICITING DEFENDANT’S UNDERSTANDING OF THE RIGHT BEING WAIVED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a two-judge dissent, determined that the defendant’s waiver of his right to indictment by grand jury followed proper procedure and was therefore valid. However the court noted that it would be better practice to elicit defendant’s understanding of the right being waived in accordance with a model colloquy (see Waiver of Indictment; Superior Court Information Procedure & Colloquy, https://www.nycourts.gov/judges/cji/8-Colloquies/ [accessed June 22, 2018]):

Mr. Myers [the defendant] signed a waiver, under oath, in open court, after consulting counsel, and with counsel present at the signing. In that statement, Mr. Myers affirmed that he was aware our Constitution guaranteed him the right to be prosecuted by a grand jury indictment and that he would have the right to testify before that grand jury; that he waived those rights in favor of prosecution by Superior Court Information, and that he did so voluntarily after discussing the facts of his case “as well as the meaning of this waiver” with his attorney. The waiver also set forth the offense with which the Superior Court information would charge him. In addition, Mr. Myers’ counsel signed an affirmation that he had discussed the case and the meaning of the waiver with Mr. Myers, and that counsel was satisfied that Mr. Myers understood “the waiver and its consequences.” Those steps satisfied the constitutional requirements. People v Myers, 2018 NY Slip Op 04685, CtApp 6-27-18

CRIMINAL LAW (WAIVER OF INDICTMENT, DEFENDANT’S SIGNING A WRITTEN WAIVER OF THE RIGHT TO AN INDICTMENT BY GRAND JURY MET CONSTITUTIONAL REQUIREMENTS, ALTHOUGH BETTER PRACTICE WOULD INCLUDE ELICITING DEFENDANT’S UNDERSTANDING OF THE RIGHT BEING WAIVED (CT APP))/INDICTMENT, WAIVER OF (DEFENDANT’S SIGNING A WRITTEN WAIVER OF THE RIGHT TO AN INDICTMENT BY GRAND JURY MET CONSTITUTIONAL REQUIREMENTS, ALTHOUGH BETTER PRACTICE WOULD INCLUDE ELICITING DEFENDANT’S UNDERSTANDING OF THE RIGHT BEING WAIVED (CT APP))/WAIVER OF INDICTMENT (DEFENDANT’S SIGNING A WRITTEN WAIVER OF THE RIGHT TO AN INDICTMENT BY GRAND JURY MET CONSTITUTIONAL REQUIREMENTS, ALTHOUGH BETTER PRACTICE WOULD INCLUDE ELICITING DEFENDANT’S UNDERSTANDING OF THE RIGHT BEING WAIVED (CT APP))

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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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