You are here: / Criminal Law
,

DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S RE THE CLIENT’S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR FURTHER PROCEEDINGS ON THE MOTION WITH NEW COUNSEL (FIRST DEPT).

The First Department determined defense counsel took a position adverse to her client’s on the client’s pro se written motion to withdraw his plea. Therefore the matter was remitted for further proceedings on the motion with new counsel:

Before sentencing, defendant made a written pro se motion to withdraw his guilty plea, asserting that his plea was involuntary because he “was not fully aware of the circumstances involved,” and that he had a meritorious defense. In a companion motion, he cited specific inconsistencies in the victim’s statements. Defendant did not claim there were any deficiencies in defense counsel’s performance. However, when asked by the court whether she had anything to say “on behalf of the motion,” counsel replied, “I don’t think that there . . . is a basis for it,” and that defendant had not wanted to proceed to trial.

This constituted taking a position adverse to defendant’s, and thus warranted assignment of new counsel… . To the extent that, after the court denied the motion, counsel made additional comments that appeared to bear on her advice to defendant about taking the plea, these were unnecessary because, in his plea withdrawal motion, defendant never complained about his attorney’s conduct. Thus, counsel’s comments were adverse to her client’s position, and “went beyond a mere explanation of h[er] performance” … . People v Colson, 2018 NY Slip Op 02885, First Dept 4-26-18

​CRIMINAL LAW (ATTORNEYS, DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S RE THE CLIENT’S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR FURTHER PROCEEDINGS ON THE MOTION WITH NEW COUNSEL (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S RE THE CLIENT’S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR FURTHER PROCEEDINGS ON THE MOTION WITH NEW COUNSEL (FIRST DEPT))/PLEA, MOTION TO WITHDRAW  (ATTORNEYS, DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S RE THE CLIENT’S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR FURTHER PROCEEDINGS ON THE MOTION WITH NEW COUNSEL (FIRST DEPT))/PRO SE (CRIMINAL LAW, ATTORNEYS, PRO SE MOTION TO WITHDRAW PLEA, DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S RE THE CLIENT’S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR FURTHER PROCEEDINGS ON THE MOTION WITH NEW COUNSEL (FIRST DEPT))

,

ALLEGATIONS OF SEX OFFENSES OF WHICH DEFENDANT WAS ACQUITTED AT TRIAL PROPERLY USED IN THE SORA RISK ASSESSMENT CALCULATION (CT APP).

The Court of Appeals, over an extensive dissenting opinion by Judge Rivera, affirmed the SORA court’s use of allegations of sex offenses of which defendant was acquitted at trial in its risk assessment calculation:

The record supports the affirmed finding that defendant engaged in sexual intercourse, deviate sexual intercourse, or aggravated sexual abuse, warranting the imposition of 25 points under risk factor 2 in determining defendant’s risk level under the Sex Offender Registration Act. Contrary to defendant’s argument, his acquittal of charges at his criminal trial relating to such conduct, does not foreclose the hearing court from finding, by clear and convincing evidence, that he engaged in such acts … .

From the dissent:

As this Court has recognized, the clear and convincing evidence standard is an exacting one … . “[T]he registration duties that SORA imposes are a nontrivial restriction on the individual’s liberty, and there is a material difference between having to register for ten years and having to register for life”… . In a case such as this, where the jury clearly had grave doubts about [the complainant’s] narrative, the courts below erred in concluding that her testimony was clear and convincing evidence of defendant having committed the sexual conduct necessary for an assessment of 25 points under risk factor two. People v Britton, 2018 NY Slip Op 02830, Ct App, 4-26-18

​CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), ALLEGATIONS OF SEX OFFENSES OF WHICH DEFENDANT WAS ACQUITTED AT TRIAL PROPERLY USED IN THE SORA RISK ASSESSMENT CALCULATION (CT APP))/SEX OFFENDER REGISTRATION ACT (SORA) (ALLEGATIONS OF SEX OFFENSES OF WHICH DEFENDANT WAS ACQUITTED AT TRIAL PROPERLY USED IN THE SORA RISK ASSESSMENT CALCULATION (CT APP))/ACQUITTAL (SEX OFFENSES, SEX OFFENDER REGISTRATION ACT (SORA), ALLEGATIONS OF SEX OFFENSES OF WHICH DEFENDANT WAS ACQUITTED AT TRIAL PROPERLY USED IN THE SORA RISK ASSESSMENT CALCULATION (CT APP))

,

JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL BY ASKING QUESTIONS OF WITNESSES AND INTERRUPTING CROSS-EXAMINATION (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the judge deprived defendant of a fair trial by asking questions of witnesses and interrupting cross-examination:

The principle restraining the court’s discretion is that a trial judge’s “function is to protect the record, not to make it” (… . Indeed, when the trial judge interjects often and indulges in an extended questioning of witnesses, even where those questions would be proper if they came from trial counsel, the trial judge’s participation presents significant risks of prejudicial unfairness … . Accordingly, while a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on “the function or appearance of an advocate” … .

Here, the Supreme Court interjected itself into the questioning of witnesses more than 50 times, asking more than 400 questions. The court elicited step-by-step details from several officers regarding their observations and actions during their apprehension of the defendant. In addition, the court elicited and assisted in developing facts damaging to the defense on direct examination of the People’s witnesses, bolstering the witnesses’ credibility. The court also interrupted cross-examination and generally created the impression that it was an advocate on behalf of the People. People v Hinds, 2018 NY Slip Op 02804, Second Dept 4-25-18

​CRIMINAL LAW (JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL BY ASKING QUESTIONS OF WITNESSES AND INTERRUPTING CROSS-EXAMINATION (SECOND DEPT))/JUDGES (CRIMINAL LAW, JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL BY ASKING QUESTIONS OF WITNESSES AND INTERRUPTING CROSS-EXAMINATION (SECOND DEPT))

, ,

JUDGE DID NOT RULE ON DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS PLEA, APPEAL HELD IN ABEYANCE, MATTER REMITTED FOR APPOINTMENT OF NEW COUNSEL AND A RULING ON THE MOTION (SECOND DEPT).

The Second Department held the appeal in abeyance because the defendant’s pro se motion to withdraw his plea was not ruled on. The matter was sent back for a ruling after defendant was assigned new counsel:

… [T]he County Court erred in failing to consider the defendant’s oral pro se application at the resentence proceeding to withdraw his plea of guilty. There is no indication in the record that the court ruled on the defendant’s motion. The court neither granted nor denied it on the record before us. As CPL 470.15(1) serves as a legislative restriction on this Court’s power to review issues not ruled upon by the trial court … , the court’s failure to rule on the motion precludes our review of the issue raised by the defendant’s appeal … . Accordingly, the matter must be remitted … for further proceedings on the defendant’s motion to withdraw his plea of guilty, for which the defendant shall be appointed new counsel, and thereafter a report to this Court on the motion and whether the defendant established his entitlement to withdrawal of his plea of guilty. People v Rovinsky, 2018 NY Slip Op 02814, Second Dept 4-25-18

CRIMINAL LAW (PLEA, WITHDRAWAL OF, JUDGE DID NOT RULE ON DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS PLEA, APPEAL HELD IN ABEYANCE, MATTER REMITTED FOR APPOINTMENT OF NEW COUNSEL AND A RULING ON THE MOTION (SECOND DEPT))/APPEALS (CRIMINAL LAW, FAILURE TO RULE, JUDGE DID NOT RULE ON DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS PLEA, APPEAL HELD IN ABEYANCE, MATTER REMITTED FOR APPOINTMENT OF NEW COUNSEL AND A RULING ON THE MOTION (SECOND DEPT))/PLEA, MOTION TO WITHDRAW (CRIMINAL LAW, APPEALS, JUDGE DID NOT RULE ON DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS PLEA, APPEAL HELD IN ABEYANCE, MATTER REMITTED FOR APPOINTMENT OF NEW COUNSEL AND A RULING ON THE MOTION (SECOND DEPT))

JUDGE DID NOT MAKE IT CLEAR THAT DEFENDANT’S SENTENCE INCLUDED A PERIOD OF POSTRELEASE SUPERVISION, PLEA VACATED AND MATTER REMITTED (SECOND DEPT).

The Second Department, vacating defendant’s plea, determined the judge did not make clear the sentence included a period of postrelease supervision:

A trial court has the constitutional duty to advise a defendant, before pleading guilty, of the direct consequences of a plea of guilty, including any period of postrelease supervision… . Although the court is not required to engage in any particular litany when allocuting the defendant, the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant… . Here, the record does not make clear that at the time the defendant entered his plea, he was aware that the terms of the County Court’s promised sentence included a period of postrelease supervision … . Accordingly, the judgment must be reversed, the plea vacated, and the matter remitted… . People v James, 2018 NY Slip Op 02805, Second Dept 4-25-18

​CRIMINAL LAW (SENTENCING, JUDGE DID NOT MAKE IT CLEAR THAT DEFENDANT’S SENTENCE INCLUDED A PERIOD OF POSTRELEASE SUPERVISION, PLEA VACATED AND MATTER REMITTED (SECOND DEPT))/SENTENCING (POSTRELEASE SUPERVISION, JUDGE DID NOT MAKE IT CLEAR THAT DEFENDANT’S SENTENCE INCLUDED A PERIOD OF POSTRELEASE SUPERVISION, PLEA VACATED AND MATTER REMITTED (SECOND DEPT))/POSTRELEASE SUPERVISION (SENTENCING,  JUDGE DID NOT MAKE IT CLEAR THAT DEFENDANT’S SENTENCE INCLUDED A PERIOD OF POSTRELEASE SUPERVISION, PLEA VACATED AND MATTER REMITTED (SECOND DEPT))

,

MOTION TO VACATE DEFENDANT’S CONVICTION FOR A 1991 MURDER PROPERLY GRANTED BASED IN PART ON SUBSEQUENT SERIOUS MISCONDUCT BY ONE OF THE POLICE INVESTIGATORS, CRITERIA FOR NEWLY DISCOVERED EVIDENCE IN THIS CONTEXT EXPLAINED (SECOND DEPT).

The Second Department, in a full-fledged, exhaustive opinion by Justice Miller (too detailed to be fairly summarized here), determined defendant’s motion to vacate his conviction for a 1991 murder was properly granted (requiring a new trial). The early 90’s trial lasted one day. One of the police investigators has since been implicated in facilitating false identification testimony. The finger and palm print evidence did not match the defendant or his co-defendant. The blood evidence didn’t match. Crucial blood evidence was never tested and may have been lost. The identification evidence, the only evidence upon which the conviction could be based, was problematic. With respect to the criteria for newly discovered evidence in this context, the court wrote:

… [A] motion for a new trial based on newly discovered evidence should only be granted if the court finds, as a factual matter, that the movant has demonstrated that “[1] [n]ew evidence has been discovered since the entry of a judgment . . . [2] which could not have been produced by the defendant at the trial even with due diligence on his part and [3] which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 440.10[1][g]).

The remaining three criteria should be used to evaluate the ultimate issue of whether the new evidence would “create a probability” of a more favorable verdict… . In assessing the probable impact of the new evidence, the court should consider whether and to what extent the new evidence is (1) material to the pertinent issues in the case, (2) cumulative to evidence that was already presented to the jury, and (3) merely impeaching or contradicting the evidence presented at trial … . People v Hargrove, 2018 NY Slip Op 02649, Second Dept 4-18-18

​CRIMINAL LAW (MOTION TO VACATE DEFENDANT’S CONVICTION FOR A 1991 MURDER PROPERLY GRANTED BASED IN PART ON SUBSEQUENT SERIOUS MISCONDUCT BY ONE OF THE POLICE INVESTIGATORS, CRITERIA FOR NEWLY DISCOVERED EVIDENCE IN THIS CONTEXT EXPLAINED (SECOND DEPT))/VACATE CONVICTION, MOTION TO (MOTION TO VACATE DEFENDANT’S CONVICTION FOR A 1991 MURDER PROPERLY GRANTED BASED IN PART ON SUBSEQUENT SERIOUS MISCONDUCT BY ONE OF THE POLICE INVESTIGATORS, CRITERIA FOR NEWLY DISCOVERED EVIDENCE IN THIS CONTEXT EXPLAINED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, MOTION TO VACATE DEFENDANT’S CONVICTION FOR A 1991 MURDER PROPERLY GRANTED BASED IN PART ON SUBSEQUENT SERIOUS MISCONDUCT BY ONE OF THE POLICE INVESTIGATORS, CRITERIA FOR NEWLY DISCOVERED EVIDENCE IN THIS CONTEXT EXPLAINED (SECOND DEPT))/NEWLY DISCOVERED EVIDENCE (CRIMINAL LAW, (MOTION TO VACATE DEFENDANT’S CONVICTION FOR A 1991 MURDER PROPERLY GRANTED BASED IN PART ON SUBSEQUENT SERIOUS MISCONDUCT BY ONE OF THE POLICE INVESTIGATORS, CRITERIA FOR NEWLY DISCOVERED EVIDENCE IN THIS CONTEXT EXPLAINED (SECOND DEPT))

SENTENCING JUDGE’S MISINFORMATION ABOUT THE LENGTH OF THE PRISON SENTENCE THE JUVENILE OFFENDER COULD RECEIVE IF SHE FAILED TO MEET THE CONDITIONS IMPOSED BY A PLEA AGREEMENT RENDERED THE PLEA INVOLUNTARY, THE MOTION TO WITHDRAW THE PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined juvenile defendant’s motion to withdraw her guilty plea should have been granted. Defendant, who was 15, in connection with a robbery charge, was offered a youthful offender adjudication and a conditional discharge if she met certain conditions, including school attendance and curfews, for a year. The sentencing judge told defendant she could face 25 years in prison if she did not meet the conditions. Defendant did not meet the conditions. She moved to withdraw her plea because the judge’s statement she could receive a 25 year sentence was wrong. As a juvenile, the maximum possible sentence was 3 1/2 to 10:

Whether a plea is knowing, intelligent and voluntary is dependent upon a number of factors “including the nature and terms of the agreement, the reasonableness of the bargain, and the age and experience of the accused” … . This Court has repeatedly held that defendants must also be made aware of the sentencing parameters so that they may access the propriety of entering a plea of guilty … . To that end, a defendant’s receipt of inaccurate information regarding her possible sentence exposure is clearly a factor which must be considered by the court on a plea withdrawal motion … . …

That defendant was offered an extremely beneficial plea that would allow her to be afforded youthful offender treatment and avoid incarceration does not, as argued by the People, detract from the fact that defendant was misinformed as to her sentencing exposure. Similarly, that defendant received a lesser sentence than what was promised by the court does not remedy the involuntariness of her plea of guilty … . Under the circumstances presented, it cannot be found that defendant would have accepted the promised plea and entered a plea of guilty, if she had been accurately informed of the sentencing parameters. People v Johnson, 2018 NY Slip Op 02566, First Dept 4-17-18

​CRIMINAL LAW (GUILTY PLEA, SENTENCING JUDGE’S MISINFORMATION ABOUT THE LENGTH OF THE PRISON SENTENCE THE JUVENILE OFFENDER COULD RECEIVE IF SHE FAILED TO MEET THE CONDITIONS IMPOSED BY A PLEA AGREEMENT RENDERED THE PLEA INVOLUNTARY, THE MOTION TO WITHDRAW THE PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))/GUILTY PLEA, MOTION TO WITHDRAW (SENTENCING JUDGE’S MISINFORMATION ABOUT THE LENGTH OF THE PRISON SENTENCE THE JUVENILE OFFENDER COULD RECEIVE IF SHE FAILED TO MEET THE CONDITIONS IMPOSED BY A PLEA AGREEMENT RENDERED THE PLEA INVOLUNTARY, THE MOTION TO WITHDRAW THE PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))/SENTENCE (CRIMINAL LAW, MOTION TO WITHDRAW GUILTY PLEA, SENTENCING JUDGE’S MISINFORMATION ABOUT THE LENGTH OF THE PRISON SENTENCE THE JUVENILE OFFENDER COULD RECEIVE IF SHE FAILED TO MEET THE CONDITIONS IMPOSED BY A PLEA AGREEMENT RENDERED THE PLEA INVOLUNTARY, THE MOTION TO WITHDRAW THE PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))/PLEA AGREEMENT CRIMINAL LAW, MOTION TO WITHDRAW GUILTY PLEA, SENTENCING JUDGE’S MISINFORMATION ABOUT THE LENGTH OF THE PRISON SENTENCE THE JUVENILE OFFENDER COULD RECEIVE IF SHE FAILED TO MEET THE CONDITIONS IMPOSED BY A PLEA AGREEMENT RENDERED THE PLEA INVOLUNTARY, THE MOTION TO WITHDRAW THE PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))

, ,

13-YEAR-OLD APPELLANT’S CONFESSION MADE WITHOUT MOTHER PRESENT WAS ADMISSIBLE, THE INTERROGATOR’S HAVING APPELLANT WRITE A LETTER PURPORTEDLY TO APOLOGIZE TO THE VICTIM DID NOT RENDER THE CONFESSION INVOLUNTARY, STATEMENTS BY THE VICTIM IN MEDICAL RECORDS WERE ADMISSIBLE TO CORROBORATE THE CONFESSION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, over a two-justice dissenting opinion, affirmed the juvenile delinquent adjudication finding that appellant committed offenses which, if he were an adult, would constitute criminal sexual act, sexual abuse, sexual misconduct and endangering the welfare of a child. It was alleged that appellant, who was 13, put his penis in the anus and mouth of L.F., who was nine. The majority concluded the fact that the appellant’s mother left the room during the police interrogation (at appellant’s request) and the investigator’s having the appellant write a “letter of apology” to the victim during the interrogation did not render the appellant’s confession involuntary. The majority further held that the statements in the medical records made by L.F. during a physical exam were relevant to treatment and therefore admissible to corroborate the confession:

While a parent may choose not to be present when a child is being interviewed, “the police should always ensure that the parent is aware of the right of access to his or her child during questioning,” and if asked to leave, “the parent should be made aware that he or she is not required to leave” … .

To be sure, the presence of a parent is important, as a parent may help a child understand Miranda warnings “so that the child can consciously and voluntarily choose whether to waive or to exercise his constitutional rights to remain silent, to have an attorney present at his questioning, and to have an attorney provided for him without charge if he is indigent” … . A parent present at questioning also is able to “monitor the interrogation lest the police engage in coercive tactics” … .

However, a child does not have an absolute right to the presence of a parent during interrogation, and “it does not follow as a matter of law that a child’s confession obtained in the absence of a parent is not voluntary”  … . * * *

… [A]ppellant’s confession is corroborated by the medical records, which were properly admitted into evidence by Family Court. … Hospital records are admissible under the business records exception to the hearsay rule when they reflect “acts, occurrences or events that relate to diagnosis, prognosis or treatment or are otherwise helpful to an understanding of the medical or surgical aspects” of the patient’s hospitalization … . Matter of Luis P., 2018 NY Slip Op 02564, First Dept 4-12-18

​CRIMINAL LAW (JUVENILE DELINQUENCY, EVIDENCE, 13-YEAR-OLD APPELLANT’S CONFESSION MADE WITHOUT MOTHER PRESENT WAS ADMISSIBLE, THE INTERROGATOR’S HAVING APPELLANT WRITE A LETTER PURPORTEDLY TO APOLOGIZE TO THE VICTIM DID NOT RENDER THE CONFESSION INVOLUNTARY, STATEMENTS BY THE VICTIM IN MEDICAL RECORDS WERE ADMISSIBLE TO CORROBORATE THE CONFESSION (FIRST DEPT))/JUVENILE DELINQUENCY (EVIDENCE, 13-YEAR-OLD APPELLANT’S CONFESSION MADE WITHOUT MOTHER PRESENT WAS ADMISSIBLE, THE INTERROGATOR’S HAVING APPELLANT WRITE A LETTER PURPORTEDLY TO APOLOGIZE TO THE VICTIM DID NOT RENDER THE CONFESSION INVOLUNTARY, STATEMENTS BY THE VICTIM IN MEDICAL RECORDS WERE ADMISSIBLE TO CORROBORATE THE CONFESSION (FIRST DEPT))/CONFESSIONS  (JUVENILE DELINQUENCY, 13-YEAR-OLD APPELLANT’S CONFESSION MADE WITHOUT MOTHER PRESENT WAS ADMISSIBLE, THE INTERROGATOR’S HAVING APPELLANT WRITE A LETTER PURPORTEDLY TO APOLOGIZE TO THE VICTIM DID NOT RENDER THE CONFESSION INVOLUNTARY, STATEMENTS BY THE VICTIM IN MEDICAL RECORDS WERE ADMISSIBLE TO CORROBORATE THE CONFESSION (FIRST DEPT))/FAMILY LAW (JUVENILE DELINQUENCY, EVIDENCE, 13-YEAR-OLD APPELLANT’S CONFESSION MADE WITHOUT MOTHER PRESENT WAS ADMISSIBLE, THE INTERROGATOR’S HAVING APPELLANT WRITE A LETTER PURPORTEDLY TO APOLOGIZE TO THE VICTIM DID NOT RENDER THE CONFESSION INVOLUNTARY, STATEMENTS BY THE VICTIM IN MEDICAL RECORDS WERE ADMISSIBLE TO CORROBORATE THE CONFESSION (FIRST DEPT))/HEARSAY (CRIMINAL LAW, HOSPITAL RECORDS, JUVENILE DELINQUENCY, 13-YEAR-OLD APPELLANT’S CONFESSION MADE WITHOUT MOTHER PRESENT WAS ADMISSIBLE, THE INTERROGATOR’S HAVING APPELLANT WRITE A LETTER PURPORTEDLY TO APOLOGIZE TO THE VICTIM DID NOT RENDER THE CONFESSION INVOLUNTARY, STATEMENTS BY THE VICTIM IN MEDICAL RECORDS WERE ADMISSIBLE TO CORROBORATE THE CONFESSION (FIRST DEPT))/BUSINESS RECORDS (HOSPITAL RECORDS, CRIMINAL LAW, JUVENILE DELINQUENCY, 13-YEAR-OLD APPELLANT’S CONFESSION MADE WITHOUT MOTHER PRESENT WAS ADMISSIBLE, THE INTERROGATOR’S HAVING APPELLANT WRITE A LETTER PURPORTEDLY TO APOLOGIZE TO THE VICTIM DID NOT RENDER THE CONFESSION INVOLUNTARY, STATEMENTS BY THE VICTIM IN MEDICAL RECORDS WERE ADMISSIBLE TO CORROBORATE THE CONFESSION (FIRST DEPT))

,

REQUEST FOR A FRYE HEARING CONCERNING A COMPUTER PROGRAM (TRUEALLELE) THAT PURPORTS TO IDENTIFY DNA CONTAINED IN A MIXTURE THAT COULD NOT OTHERWISE BE TIED TO THE DEFENDANT PROPERLY DENIED BASED ON THE RESULTS OF A HEARING ON THE SAME ISSUE IN ANOTHER CASE, EVEN THOUGH THAT CASE IS ON APPEAL, DEFENSE REQUEST FOR THE ORIGINAL CODE FOR THE PROGRAM, MADE FOR THE FIRST TIME DURING CROSS-EXAMINATION OF THE PEOPLE’S EXPERT, PROPERLY DENIED (THIRD DEPT).

The Third Department determined Supreme Court properly denied a DNA-related Frye hearing based on a Frye hearing held in another case, even though that case is on appeal. The hearing was requested concerning a computer program (TrueAllele) which calculates the probability a defendant’s DNA is in a mixture that could not otherwise be definitively tied to the defendant. The original code for the computer program, called the source code, could have been requested by the defendant for a pre-trial analysis by a defense expert. The defense never requested the source code but attempted to have the TrueAllele expert provide the source code during cross-examination. The argument that cross-examination was impeded because the source code was not made available to the defense at trial was rejected. Only an expert could analyze it and there had been no timely request for it by the defense:

…DNA analysis did not definitively tie defendant to the genetic material recovered from the pistol. The People accordingly sought to present proof of a re-analysis conducted with the TrueAllele Casework System (hereinafter TrueAllele), a computer program that subjects a DNA mixture to statistical modeling techniques to infer what DNA profiles contributed to the mixture and calculate the probability that DNA from a known individual contributed to it. Defendant argued that the TrueAllele evidence should be precluded or that the general acceptance of the technique in the scientific community should be assessed via a Frye hearing. Supreme Court denied the application due to the fact that an extensive Frye hearing had been conducted on the issue in another criminal case in the same county and that a determination, issued weeks before the trial in this matter, was rendered finding that the procedure was not novel and was generally accepted by the relevant scientific community … . People v Fields, 2018 NY Slip Op 02503, Third Dept 4-12-18

​CRIMINAL LAW (DNA, REQUEST FOR A FRYE HEARING CONCERNING A COMPUTER PROGRAM (TRUEALLELE) THAT PURPORTS TO IDENTIFY DNA CONTAINED IN A MIXTURE THAT COULD NOT OTHERWISE BE TIED TO THE DEFENDANT PROPERLY DENIED BASED ON THE RESULTS OF A HEARING ON THE SAME ISSUE IN ANOTHER CASE, EVEN THOUGH THAT CASE IS ON APPEAL, DEFENSE REQUEST FOR THE ORIGINAL CODE FOR THE PROGRAM, MADE FOR THE FIRST TIME DURING CROSS-EXAMINATION OF THE PEOPLE’S EXPERT, PROPERLY DENIED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, DNA, REQUEST FOR A FRYE HEARING CONCERNING A COMPUTER PROGRAM (TRUEALLELE) THAT PURPORTS TO IDENTIFY DNA CONTAINED IN A MIXTURE THAT COULD NOT OTHERWISE BE TIED TO THE DEFENDANT PROPERLY DENIED BASED ON THE RESULTS OF A HEARING ON THE SAME ISSUE IN ANOTHER CASE, EVEN THOUGH THAT CASE IS ON APPEAL, DEFENSE REQUEST FOR THE ORIGINAL CODE FOR THE PROGRAM, MADE FOR THE FIRST TIME DURING CROSS-EXAMINATION OF THE PEOPLE’S EXPERT, PROPERLY DENIED (THIRD DEPT))/FRYE HEARING (DNA, CRIMINAL LAW, REQUEST FOR A FRYE HEARING CONCERNING A COMPUTER PROGRAM (TRUEALLELE) THAT PURPORTS TO IDENTIFY DNA CONTAINED IN A MIXTURE THAT COULD NOT OTHERWISE BE TIED TO THE DEFENDANT PROPERLY DENIED BASED ON THE RESULTS OF A HEARING ON THE SAME ISSUE IN ANOTHER CASE, EVEN THOUGH THAT CASE IS ON APPEAL, DEFENSE REQUEST FOR THE ORIGINAL CODE FOR THE PROGRAM, MADE FOR THE FIRST TIME DURING CROSS-EXAMINATION OF THE PEOPLE’S EXPERT, PROPERLY DENIED (THIRD DEPT))/TRUEALLELE (DNA, CRIMINAL LAW, REQUEST FOR A FRYE HEARING CONCERNING A COMPUTER PROGRAM (TRUEALLELE) THAT PURPORTS TO IDENTIFY DNA CONTAINED IN A MIXTURE THAT COULD NOT OTHERWISE BE TIED TO THE DEFENDANT PROPERLY DENIED BASED ON THE RESULTS OF A HEARING ON THE SAME ISSUE IN ANOTHER CASE, EVEN THOUGH THAT CASE IS ON APPEAL, DEFENSE REQUEST FOR THE ORIGINAL CODE FOR THE PROGRAM, MADE FOR THE FIRST TIME DURING CROSS-EXAMINATION OF THE PEOPLE’S EXPERT, PROPERLY DENIED (THIRD DEPT))

,

DEFENDANT’S REQUEST TO REPLACE OR DISMISS HIS STANDBY COUNSEL PROPERLY DENIED (FIRST DEPT).

The First Department determined Supreme Court properly denied defendant’s request to replace or dismiss defendant’s standby attorney:

After permitting defendant to represent himself at trial, the court providently exercised its discretion in declining to replace or dismiss defendant’s standby counsel. Initially, to the extent defendant sought to proceed with no standby counsel at all, that request was properly denied. That option would have risked a mistrial in the event termination of defendant’s pro se status became necessary, and this was of particular concern because defendant had a history of disrupting the proceedings … . Defendant was under no obligation to solicit or accept any advice from his standby counsel.

Furthermore, there was no good cause for replacement of defendant’s standby counsel, who was defendant’s third assigned attorney, with yet another attorney … . While the record sometimes shows contentious exchanges between defendant and this attorney, the record also shows that he consulted with him, as a legal advisor, on other occasions. There was no irreconcilable conflict amounting to good cause for substitution… , nor does any disagreement over trial strategy … . The attorney’s negative comments about defendant, quoted in a newspaper article, should have been avoided, but they were made well before trial, and did not prejudice defendant or amount to an irreconcilable conflict. People v Findley, 2018 NY Slip Op 02545, First Dept 4-12-18

​CRIMINAL LAW (ATTORNEYS, DEFENDANT’S REQUEST TO REPLACE OR DISMISS HIS STANDBY COUNSEL PROPERLY DENIED (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, STANDBY COUNSEL, DEFENDANT’S REQUEST TO REPLACE OR DISMISS HIS STANDBY COUNSEL PROPERLY DENIED (FIRST DEPT))/STANDBY COUNSEL (CRIMINAL LAW, DEFENDANT’S REQUEST TO REPLACE OR DISMISS HIS STANDBY COUNSEL PROPERLY DENIED (FIRST DEPT))/PRO SE (CRIMINAL LAW, STANDBY COUNSEL, DEFENDANT’S REQUEST TO REPLACE OR DISMISS HIS STANDBY COUNSEL PROPERLY DENIED (FIRST 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