You are here: / Criminal Law

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))​

, ,

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))

, ,

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))

,

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))

, ,

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))

,

WHEN DEFENDANT TOLD THE COURT AT HIS FIRST TWO APPEARANCES THAT HE WISHED TO TESTIFY AT THE GRAND JURY, THE COURT SHOULD HAVE RECOGNIZED THAT DEFENDANT WAS ATTEMPTING TO REPRESENT HIMSELF AND CONDUCTED A SEARCHING INQUIRY TO MAKE SURE DEFENDANT UNDERSTOOD THE RISKS (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea and dismissing the indictment, determined the court should have conducted a searching inquiry into defendant’s representing himself when he indicated he wished to testify at the grand jury at his first and second appearances in court:

… [D]efendant appeared in City Court for arraignment on a felony complaint and a misdemeanor information charging him with the offenses for which he was later indicted. Defendant, as is relevant here, stated that he wished to represent himself and testify before the grand jury. He remained unrepresented at a second appearance three days later and reiterated his desire to appear before the grand jury. The indictment was handed up shortly thereafter, and it appears that the People disregarded defendant’s desire to testify before the grand jury because he failed to make a written demand as required … . …​

“[D]efendant’s indelible right to counsel . . . attached when the felony complaint against him was first filed” …  and, while he could waive that right and proceed pro se, the waiver would be invalid absent a “searching inquiry” by City Court to discern whether defendant understood and “appreciated the ‘dangers and disadvantages’ of” self-representation… . There was no inquiry conducted here, leaving the record silent as to whether “defendant ‘acted with full knowledge and appreciation of the panoply of constitutional protections that would be adversely affected by counsel’s inability to participate'” so as to constitute a valid waiver … . Defendant should therefore not have been permitted to proceed pro se … . It follows that defendant was deprived of an opportunity to consult with counsel — who could have assisted defendant in deciding whether to appear before the grand jury and made an effective demand to appear in the event he chose to do so — and this “deprivation of defendant’s constitutional right to counsel requires the dismissal of the indictment” … . People v Trapani, 2018 NY Slip Op 04041, Third Dept 6-7-18

CRIMINAL LAW (ATTORNEYS, WHEN DEFENDANT TOLD THE COURT AT HIS FIRST TWO APPEARANCES THAT HE WISHED TO TESTIFY AT THE GRAND JURY, THE COURT SHOULD HAVE RECOGNIZED THAT DEFENDANT WAS ATTEMPTING TO REPRESENT HIMSELF AND CONDUCTED A SEARCHING INQUIRY TO MAKE SURE DEFENDANT UNDERSTOOD THE RISKS (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, WHEN DEFENDANT TOLD THE COURT AT HIS FIRST TWO APPEARANCES THAT HE WISHED TO TESTIFY AT THE GRAND JURY, THE COURT SHOULD HAVE RECOGNIZED THAT DEFENDANT WAS ATTEMPTING TO REPRESENT HIMSELF AND CONDUCTED A SEARCHING INQUIRY TO MAKE SURE DEFENDANT UNDERSTOOD THE RISKS (THIRD DEPT))/RIGHT TO COUNSEL (WHEN DEFENDANT TOLD THE COURT AT HIS FIRST TWO APPEARANCES THAT HE WISHED TO TESTIFY AT THE GRAND JURY, THE COURT SHOULD HAVE RECOGNIZED THAT DEFENDANT WAS ATTEMPTING TO REPRESENT HIMSELF AND CONDUCTED A SEARCHING INQUIRY TO MAKE SURE DEFENDANT UNDERSTOOD THE RISKS (THIRD DEPT))/GRAND JURY ( WHEN DEFENDANT TOLD THE COURT AT HIS FIRST TWO APPEARANCES THAT HE WISHED TO TESTIFY AT THE GRAND JURY, THE COURT SHOULD HAVE RECOGNIZED THAT DEFENDANT WAS ATTEMPTING TO REPRESENT HIMSELF AND CONDUCTED A SEARCHING INQUIRY TO MAKE SURE DEFENDANT UNDERSTOOD THE RISKS (THIRD DEPT))

DEFENSE COUNSEL’S FOR CAUSE CHALLENGE TO A JUROR SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defense counsel’s for cause challenge to a juror should have been granted:

Turning first to defendant’s contention regarding prospective juror No. 4 from round three, she indicated that she knew Ruth Crepet, a physician that the People intended to call as a witness, as Crepet was her primary care physician of 15 years. Although the juror stated that she had a preconceived notion that Crepet would be truthful, she indicated that she could be impartial and fair at trial in that regard. This juror also stated that her husband was the victim of a robbery and, because the person “got off,” she was “a little cynical” about the criminal justice system, but “would try” to be impartial and thought “that [she] could be.” When asked if she could find defendant guilty, this juror stated “yes, you bet.” …​

While it is not necessarily an issue that Crepet was the prospective juror’s doctor … , her general equivocality is problematic. “Equivocal, uncertain responses, including statements that a prospective juror will ‘try’ or ‘hope’ to be impartial, are insufficient in the absence of [other] ‘express and unequivocal’ declarations that the juror will put any preconceptions aside and render an impartial verdict based solely on the evidence” … . Here, while some of the prospective juror’s responses were unequivocal, many were not, and, as such, her responses as a whole do not demonstrate that her opinion would not influence her verdict … . Therefore, further inquiry was needed and, in the absence of said inquiry, it was error for Supreme Court to deny defendant’s challenge for cause … . People v Horton, 2018 NY Slip Op 04040, Third Dept 6-7-18

CRIMINAL LAW (JURORS, DEFENSE COUNSEL’S FOR CAUSE CHALLENGE TO A JUROR SHOULD HAVE BEEN GRANTED (THIRD DEPT))/JURORS (CRIMINAL LAW, DEFENSE COUNSEL’S FOR CAUSE CHALLENGE TO A JUROR SHOULD HAVE BEEN GRANTED (THIRD DEPT))/FOR CAUSE CHALLENGE (CRIMINAL LAW, JURORS, DEFENSE COUNSEL’S FOR CAUSE CHALLENGE TO A JUROR SHOULD HAVE BEEN GRANTED (THIRD DEPT)

PETTY SLAPS DO NOT CONSTITUTE SUBSTANTIAL PAIN, ROBBERY SECOND REDUCED TO ROBBERY THIRD (FIRST DEPT).

The First Dept, reducing the robbery second conviction to robbery third, determined the proof of substantial pain was insufficient:

… [W]e agree with the defendant that the evidence was insufficient to establish “substantial pain” beyond a reasonable doubt to sustain his conviction of robbery in the second degree Penal Law § 160.10 [2] [a]). The People’s evidence, presented through photographs and police testimony, was insufficient to establish that plaintiff suffered more than “petty slaps” and, therefore, failed to establish “substantial pain” beyond a reasonable doubt … . People v Ramos, 2018 NY Slip Op 04097, First Dept 6-7-18

CRIMINAL LAW (ROBBERY, PETTY SLAPS DO NOT CONSTITUTE SUBSTANTIAL PAIN, ROBBERY SECOND REDUCED TO ROBBERY THIRD (FIRST DEPT))/ROBBERY (SUBSTANTIAL PAIN, PETTY SLAPS DO NOT CONSTITUTE SUBSTANTIAL PAIN, ROBBERY SECOND REDUCED TO ROBBERY THIRD (FIRST DEPT))/SUBSTANTIAL PAIN  (ROBBERY, PETTY SLAPS DO NOT CONSTITUTE SUBSTANTIAL PAIN, ROBBERY SECOND REDUCED TO ROBBERY THIRD (FIRST DEPT))

FAILURE TO EXPLAIN TO THE JURY THAT ACQUITTAL OF ATTEMPTED MURDER BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL OF ASSAULT FIRST WAS REVERSIBLE ERROR, NEW TRIAL ON ASSAULT FIRST ORDERED (FIRST DEPT).

The First Department, reversing defendant’s assault first conviction, over an extensive dissent, determined it was reversible error to fail to instruct the jury that acquittal of the top count (attempted murder) based on the justification defense would require acquittal on the assault first count:

“While the jury may have acquitted on the top charge without relying on defendant’s justification defense . . . it is nevertheless impossible to discern whether acquittal of the top count . . . was based on the jurors’ finding of justification so as to mandate acquittal on the two lesser counts” … . People v Breckenridge, 2018 NY Slip Op 04074, First Dept 6-7-18​

CRIMINAL LAW (FAILURE TO EXPLAIN TO THE JURY THAT ACQUITTAL OF ATTEMPTED MURDER BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL OF ASSAULT FIRST WAS REVERSIBLE ERROR, NEW TRIAL ON ASSAULT FIRST ORDERED (FIRST DEPT))/JUSTIFICATION DEFENSE (CRIMINAL LAW, FAILURE TO EXPLAIN TO THE JURY THAT ACQUITTAL OF ATTEMPTED MURDER BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL OF ASSAULT FIRST WAS REVERSIBLE ERROR, NEW TRIAL ON ASSAULT FIRST ORDERED (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, JUSTIFICATION DEFENSE, FAILURE TO EXPLAIN TO THE JURY THAT ACQUITTAL OF ATTEMPTED MURDER BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL OF ASSAULT FIRST WAS REVERSIBLE ERROR, NEW TRIAL ON ASSAULT FIRST ORDERED (FIRST DEPT))

COURT DID NOT MAKE SURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, determined the court did not adequately explain the rights defendant was giving up by pleading guilty:

During the plea proceedings, County Court engaged in an abbreviated colloquy during which it made only a passing reference to the rights that defendant was giving up by pleading guilty. Notably, the court did not mention the privilege against self-incrimination or advise defendant of his right to a jury trial. Nor did the court ascertain whether defendant had conferred with counsel regarding the trial-related rights that he was waiving or the constitutional consequences of his guilty plea. With no affirmative showing on the record that defendant understood and voluntarily waived his constitutional rights when he entered his guilty plea, the plea was invalid and must be vacated … . People v Holmes, 2018 NY Slip Op 04039, Third Dept 6-7-18

CRIMINAL LAW (GUILTY PLEA, COURT DID NOT MAKE SURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED (THIRD DEPT))/GUILTY PLEA (COURT DID NOT MAKE SURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED (THIRD DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy