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DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT).

The Fourth Department determined Supreme Court should not have required defendant to proceed pro se on the People’s motion to compel him to submit to a buccal swab for DNA testing:

We … agree with defendant that the court erred in requiring him to proceed pro se on the People’s motion to compel him to submit to a buccal swab for DNA testing … . Contrary to the People’s contention, the court’s error cannot be deemed harmless, inasmuch as the evidence apart from the DNA evidence is not overwhelming, and there is a reasonable possibility that the error contributed to the conviction … . We therefore hold the case, reserve decision, and remit the matter to Supreme Court for further proceedings on the People’s motion following the assignment of counsel to represent defendant thereon. People v Pressley, 2018 NY Slip Op 02114, Fourth Dept 3-23-18

CRIMINAL LAW (ATTORNEYS, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, BUCCAL SWAB, DNA, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))/BUCCAL SWAB (CRIMINAL LAW, DNA, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))/DNA (CRIMINAL LAW, BUCCAL SWAB, ATTORNEYS, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))

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DEFENDANT’S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction by guilty plea, determined defendant’s statements denying he sold cocaine and describing the proceedings as corrupt mandated further inquiry by the court. The failure to preserve the error by a postallocution motion did not, under the facts, prevent the court from reaching the issue on appeal:

During the plea colloquy, defendant admitted to possessing cocaine with the intent to sell, but he denied that he sold the cocaine. After County Court stated that it would not accept his plea, it again asked defendant whether he sold the cocaine, and defendant answered “yes.” Defendant informed that court, however, that he was pleading guilty only because he could “no longer go forward to proceed to trial with the level of corruption and maliciousness being used to prosecute” him. The court nevertheless accepted his plea.

Although defendant never moved to withdraw his guilty plea, this case falls within the exception to the preservation requirement that was carved out by the Court of Appeals in People v Lopez (71 NY2d 662, 666 [1988]), which permits appellate review of the sufficiency of a plea allocution despite the absence of such a motion, where the recitation of facts elicited during the plea allocution “clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea.” Under such circumstances, if the court fails to conduct “further inquiry to ensure that [the] defendant understands the nature of the charge and that the plea is intelligently entered . . . , the defendant may challenge the sufficiency of the allocution on direct appeal, notwithstanding that a formal postallocution motion was not made” … . People v Daniels, 2018 NY Slip Op 02094, Fourth Dept 3-23-18

CRIMINAL LAW (DEFENDANT’S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT’S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT))/PLEA COLLOQUY (CRIMINAL LAW, DEFENDANT’S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT))/COLLOQUY (CRIMINAL LAW, DEFENDANT’S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT))/ALLOCUTION (CRIMINAL LAW, DEFENDANT’S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT))

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MATTER MUST BE SENT BACK FOR RESENTENCING, DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL, BECAUSE THE LENGTH OF PROBATION WAS NOT SPECIFIED (FOURTH DEPT).

The Fourth Department noted that the matter must be sent back for resentencing, despite the failure to raise the issue on appeal, because the length of probation was not specified:

Although not raised by the parties, we note that the judgment must be modified by vacating the sentence and the matter must be remitted to County Court for resentencing because the court did not specify the length of the term of probation … . People v Petrangelo, 2018 NY Slip Op 02074, Fourth Dept 3-23-18

CRIMINAL LAW (SENTENCING, MATTER MUST BE SENT BACK FOR RESENTENCING, DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL, BECAUSE THE LENGTH OF PROBATION WAS NOT SPECIFIED (FOURTH DEPT))/SENTENCING (MATTER MUST BE SENT BACK FOR RESENTENCING, DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL, BECAUSE THE LENGTH OF PROBATION WAS NOT SPECIFIED (FOURTH DEPT))/APPEALS (CRIMINAL LAW, SENTENCING,  MATTER MUST BE SENT BACK FOR RESENTENCING, DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL, BECAUSE THE LENGTH OF PROBATION WAS NOT SPECIFIED (FOURTH DEPT))/PROBATION (CRIMINAL LAW, SENTENCING,  MATTER MUST BE SENT BACK FOR RESENTENCING, DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL, BECAUSE THE LENGTH OF PROBATION WAS NOT SPECIFIED (FOURTH DEPT))

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PLEA TO A PURPORTEDLY AMENDED COUNT MUST BE VACATED BECAUSE THE COUNT HAD BEEN DISMISSED, WAIVER OF APPEAL INVALID DESPITE THE EXECUTION OF A WRITTEN WAIVER (FOURTH DEPT).

The Fourth Department determined the plea to attempted sex trafficking charged in an amended indictment count must be vacated because the count which was purportedly amended had been previously dismissed. The court further held that the waiver of appeal was invalid:

… [W]e conclude … that the court erred in eliciting defendant’s plea of guilty to attempted sex trafficking under the purported amended count 3 of the second indictment because of the previous dismissal of the underlying count… . Inasmuch as ” [a] valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution’ ” … , and the court lacked authority to amend a previously dismissed count and elicit defendant’s plea thereto, the judgment of conviction … must be reversed and the plea vacated … .

We agree with defendant … that his purported waiver of the right to appeal is not valid inasmuch as “the perfunctory inquiry made by [County] Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” … . Although “[a] detailed written waiver can supplement a court’s on-the-record explanation of what a waiver of the right to appeal entails, . . . a written waiver does not, standing alone, provide sufficient assurance that the defendant is knowingly, intelligently and voluntarily giving up his or her right to appeal”… . Here, although defendant signed such a written waiver, “the record establishes that County Court did not sufficiently explain the significance of the appeal waiver or ascertain defendant’s understanding thereof” … . We thus conclude that, “despite defendant’s execution of a written waiver of the right to appeal, he did not knowingly, intelligently or voluntarily waive his right to appeal as the record fails to demonstrate a full appreciation of the consequences of such waiver” … . People v Wilson, 2018 NY Slip Op 02060, Fourth Deptp 3-23-18

CRIMINAL LAW (PLEA TO A PURPORTEDLY AMENDED COUNT MUST BE VACATED BECAUSE THE COUNT HAD BEEN DISMISSED, WAIVER OF APPEAL INVALID DESPITE THE EXECUTION OF A WRITTEN WAIVER (FOURTH DEPT))/INDICTMENTS (PLEA TO A PURPORTEDLY AMENDED COUNT MUST BE VACATED BECAUSE THE COUNT HAD BEEN DISMISSED (FOURTH DEPT))/APPEALS (CRIMINAL LAW, WAIVER OF APPEAL INVALID DESPITE THE EXECUTION OF A WRITTEN WAIVER (FOURTH DEPT))/WAIVER OF APPEAL (CRIMINAL LAW, WAIVER OF APPEAL INVALID DESPITE THE EXECUTION OF A WRITTEN WAIVER (FOURTH DEPT))

DEFENDANT, WHO HAD SERVED THE FULL FOUR YEARS OF HIS 1 1/3 TO FOUR YEAR SENTENCE FOR DWI, COULD NOT BE SENTENCED TO MORE PRISON TIME FOR A PROBATION VIOLATION (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant could not be sentenced to more prison time for a violation of probation in this driving while intoxicated case. Defendant had served the full four years of his 1 1/3 to 4 year sentence when he violated probation by driving while intoxicated, unlicensed operation, refusal of a breath test and operating without an ignition interlock device

[In People v Coon, 156 AD3d 105, the] [3rd] Department held that, “where [the defendant] has already served and completed the one-year definite sentence imposed for the DWI conviction, County Court was not authorized to impose an additional term of imprisonment upon his violation of the conditional discharge terms” … . In reaching that conclusion, the [3rd] Department noted that “[t]he statutory framework governing sentencing does not cover these factual circumstances,” and there were “no corresponding statutes or amendments to already existing statutes that delineated the types of sanctions that courts could impose in a case such as this one” … .

While here defendant was sentenced to an indeterminate term of imprisonment followed by probation instead of a definite jail term followed by a conditional discharge, we conclude that those distinctions are immaterial. Defendant served the maximum term of imprisonment imposed, i.e., four years on his sentence of 1⅓ to 4 years, and we conclude that he cannot be subjected to additional prison time under the guise of a sentence based on a probation or conditional discharge violation when, in fact, he was resentenced for the initial offense. People v Zirbel, 2018 NY Slip Op 02064, Fourth Dept 3-23-18

CRIMINAL LAW (DWI, SENTENCING, DEFENDANT, WHO HAD SERVED THE FULL FOUR YEARS OF HIS 1 1/3 TO FOUR YEAR SENTENCE FOR DWI, COULD NOT BE SENTENCED TO MORE PRISON TIME FOR A PROBATION VIOLATION (FOURTH DEPT))/SENTENCING (DWI, DEFENDANT, WHO HAD SERVED THE FULL FOUR YEARS OF HIS 1 1/3 TO FOUR YEAR SENTENCE FOR DWI, COULD NOT BE SENTENCED TO MORE PRISON TIME FOR A PROBATION VIOLATION (FOURTH DEPT))/DRIVING WHILE INTOXICATED (SENTENCING, DEFENDANT, WHO HAD SERVED THE FULL FOUR YEARS OF HIS 1 1/3 TO FOUR YEAR SENTENCE FOR DWI, COULD NOT BE SENTENCED TO MORE PRISON TIME FOR A PROBATION VIOLATION (FOURTH DEPT))/PROBATION, VIOLATION OF (DWI, SENTENCING, DEFENDANT, WHO HAD SERVED THE FULL FOUR YEARS OF HIS 1 1/3 TO FOUR YEAR SENTENCE FOR DWI, COULD NOT BE SENTENCED TO MORE PRISON TIME FOR A PROBATION VIOLATION (FOURTH DEPT))

ALTHOUGH THE PEOPLE STATED THERE WERE NO IDENTIFICATION PROCEDURES REQUIRING NOTICE TO THE DEFENDANT, THE EVIDENCE INDICATES THERE MAY HAVE BEEN IDENTIFICATION PROCEDURES AT THE POLICE STATION BY A POLICE OFFICER, CASE SENT BACK FOR A HEARING (FOURTH DEPT).

The Fourth Department, sending the case back to Supreme Court, found that a hearing was necessary to determine whether the police officers engaged in identification procedures at the police station and, if so, whether the identifications were confirmatory. The People did not notify the defendant of any identification procedures in their CPL 710.30 notice:

… [T]he People provided a blank CPL 710.30 notice to defendant and, in response to that part of his omnibus motion seeking preclusion, asserted that “[t]here were no identification procedures which would require a CPL 710.30 notice.” The record before us establishes … that the officer and his partner may have engaged in showup identification procedures undertaken “at the deliberate direction of the State” that required notice pursuant to CPL 710.30 … . The evidence at the suppression hearing established that defendant fled from the front passenger seat of the parked vehicle and was unsuccessfully pursued by the officer, and that the officer knew defendant was apprehended because the officer saw defendant after he was later taken into custody by a third officer. The record further indicates, and the People do not dispute, that, after defendant was arrested and brought to the police station by the third officer at the officer’s direction, the officer identified defendant as the front seat passenger who fled from the parked vehicle. …

Although the People contend that any police station identifications were merely confirmatory, and it appears from the record that the officer and his partner may have been familiar with defendant prior to the subject incident, we are precluded from affirming on that ground inasmuch as the court did not rule on that issue … . People v Davis, 2018 NY Slip Op 02051, Fourth Dept 3-23-18

CRIMINAL LAW (ALTHOUGH THE PEOPLE STATED THERE WERE NO IDENTIFICATION PROCEDURES REQUIRING NOTICE TO THE DEFENDANT, THE EVIDENCE INDICATES THERE MAY HAVE BEEN IDENTIFICATION PROCEDURES AT THE POLICE STATION BY A POLICE OFFICER, CASE SENT BACK FOR A HEARING (FOURTH DEPT))/IDENTIFICATION (CRIMINAL LAW, ALTHOUGH THE PEOPLE STATED THERE WERE NO IDENTIFICATION PROCEDURES REQUIRING NOTICE TO THE DEFENDANT, THE EVIDENCE INDICATES THERE MAY HAVE BEEN IDENTIFICATION PROCEDURES AT THE POLICE STATION BY A POLICE OFFICER, CASE SENT BACK FOR A HEARING (FOURTH DEPT))/710.30 NOTICE (ALTHOUGH THE PEOPLE STATED THERE WERE NO IDENTIFICATION PROCEDURES REQUIRING NOTICE TO THE DEFENDANT, THE EVIDENCE INDICATES THERE MAY HAVE BEEN IDENTIFICATION PROCEDURES AT THE POLICE STATION BY A POLICE OFFICER, CASE SENT BACK FOR A HEARING (FOURTH DEPT))/PRECLUSION (CRIMINAL LAW, IDENTIFICATION, ALTHOUGH THE PEOPLE STATED THERE WERE NO IDENTIFICATION PROCEDURES REQUIRING NOTICE TO THE DEFENDANT, THE EVIDENCE INDICATES THERE MAY HAVE BEEN IDENTIFICATION PROCEDURES AT THE POLICE STATION BY A POLICE OFFICER, CASE SENT BACK FOR A HEARING (FOURTH DEPT))

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PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined the plea was not knowing, voluntary and intelligent:

Although the claim has not been preserved for our review given the absence of an appropriate postallocution motion by defendant, we nevertheless exercise our interest of justice jurisdiction and take corrective action under the particular circumstances presented… . “While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights” … . Here, the record reveals the absence of a meaningful plea colloquy and that defendant entered his guilty plea without County Court providing any instruction on its implications or the rights that he was waiving by entering it … . People v Schmitz, 2018 NY Slip Op 01960, Third Dept 3-22-18

CRIMINAL LAW (PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/GUILTY PLEA  (PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/APPEALS (CRIMINAL LAW, INTEREST OF JUSTICE, PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/INTEREST OF JUSTICE (CRIMINAL LAW, APPEALS, PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/COLLOQUY (CRIMINAL LAW, (PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))

TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT).

The First Department determined the trial court properly refused to discharge a juror and declare a mistrial after the juror conducted online research about false confessions and shared the information with other jurors:

After a jury note revealed that one juror had conducted online research on false confessions and shared it with the rest of the jury, the court providently exercised its discretion in denying defendant’s request to discharge the offending juror and concomitantly declare a mistrial. Defendant did not preserve his contention that the court should have conducted one or more individual inquiries … , and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. The court took adequate curative measures by thoroughly admonishing the jury to disregard the information obtained by a juror, not to conduct any outside research, and to decide the case solely based on the evidence presented at trial … . The jury presumably followed these instructions … . The court also granted defense counsel’s request for individual polling of the jurors as to whether they had reached the verdict based only on the evidence and the law as instructed by the court, and not based on any outside influence, to which all jurors answered in the affirmative. Under the circumstances, the juror’s misconduct in researching and telling the other jurors about false confessions did not prejudice defendant. People v Jimenez, 2018 NY Slip Op 02018, First Dept 3-22-18

CRIMINAL LAW (JURORS, TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT))/JURORS (CRIMINAL LAW, TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT))/MISTRIAL (CRIMINAL LAW, TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT))/DISCHARGE (JURORS) (CRIMINAL LAW, TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT))/ONLINE RESEARCH (JURORS, CRIMINAL LAW, TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT))

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FRYE HEARING PROPERLY ORDERED, CRITERIA EXPLAINED, DOUBLE HEARSAY ABOUT PRIOR THREAT TO KILL SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS (CT APP).

The Court of Appeals determined the trial court properly ordered a Frye hearing in this strangulation/drowning murder case. The court further found that testimony about an argument between defendant and the victim a month before the murder, in which the defendant threatened to kill the victim, was double hearsay and was not admissible under any hearsay exception. The error was deemed harmless. The Court explained the criteria for ordering a Frye hearing:

Under the Frye standard, expert testimony is admissible only if a scientific “principle or procedure has gained general acceptance’ in its specified field” … . The process is meant to assess “whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally” … . Absent a novel or experimental scientific theory, a Frye hearing is generally unwarranted.

“The Frye inquiry is separate and distinct from the admissibility question applied to all evidence — whether there is a proper foundation — to determine whether the accepted methods were appropriately employed in a particular case” … . The proper procedure for addressing concerns about foundation can include an in limine hearing where the trial court determines whether ” there is simply too great an analytical gap between the data and the opinion proffered'” … . The question is whether the expert’s opinion sufficiently relates to existing data or “is connected to existing data only by the ipse dixit of the expert” … .

To the extent that the trial court improperly employed the Frye procedure to rule on the foundation of the defense expert’s testimony, any such error was harmless. People v Brooks, 2018 NY Slip Op 01956, CtApp 3-22-18

CRIMINAL LAW (EVIDENCE, FRYE HEARING PROPERLY ORDERED, CRITERIA EXPLAINED, DOUBLE HEARSAY ABOUT PRIOR THREAT TO KILL SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS (CT APP))/EVIDENCE (CRIMINAL LAW,  FRYE HEARING PROPERLY ORDERED, CRITERIA EXPLAINED, DOUBLE HEARSAY ABOUT PRIOR THREAT TO KILL SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS (CT APP))/FRYE HEARING (CRIMINAL LAW,  FRYE HEARING PROPERLY ORDERED, CRITERIA EXPLAINED, DOUBLE HEARSAY ABOUT PRIOR THREAT TO KILL SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS (CT APP))/HEARSAY (CRIMINAL LAW, DOUBLE HEARSAY ABOUT PRIOR THREAT TO KILL SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS (CT APP))

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REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD THAT THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE, STRONG TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, reversing the appellate division, over a two-judge dissenting opinion, determined the trial court properly refused to instruct the jury on the justification defense. The dissent laid out the facts. At the time of the shooting defendant (Sanchez), who had just been beaten up, and defendant’s friends were confronted by several people who apparently had a knife and broken bottles. Although the defendant had retrieved a gun from a car and returned to the confrontation, it was defendant’s friend who took the gun and fired:

Viewing the evidence in the light most favorable to defendant … , the trial court properly declined to charge the jury on the justification defense because, even assuming that the jury could rationally find that defendant subjectively believed he had been threatened with the imminent use of deadly physical force, “the jury could not rationally conclude that his reactions were those of a reasonable [person] acting in self-defense” … . Further, on this record, there was no reasonable view of the evidence that defendant could not safely retreat at the time that deadly physical force was used … .

From the dissent:

Lurking somewhere beneath the majority’s opinion is the thought that you mustn’t bring a gun to a knife fight. We should keep in mind that, although there is no evidence that the group threatening Mr. Sanchez and his friends was armed with guns, courts of this state have held that the threat of deadly force may exist when a group of people attacking an individual is not armed at all … or when, in a one-on-one altercation, an unarmed victim “grabs” at a defendant’s gun … . Courts have also characterized a variety of items as dangerous instruments which, if used as part of a real or threatened attack, might justify the use of deadly force … . People v Sanchez, 2018 NY Slip Op 01957, CtApp 3-22-18

CRIMINAL LAW (JUSTIFICATION DEFENSE, REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD THAT THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE, STRONG TWO-JUDGE DISSENT (CT APP))/EVIDENCE (CRIMINAL LAW, (JUSTIFICATION DEFENSE, REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD THAT THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE, STRONG TWO-JUDGE DISSENT (CT APP))/JUSTIFICATION DEFENSE (CRIMINAL LAW, REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD THAT THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE, STRONG TWO-JUDGE DISSENT (CT APP))

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