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CODEFENDANT WAS SEEN ENTERING A CAR WITH A WEAPON WHICH WAS LATER FOUND ON THE SIDE OF THE ROAD, STATUTORY PRESUMPTION THAT THE WEAPON WAS POSSESSED BY ALL IN THE CAR DID NOT APPLY, DEFENDANT’S POSSESSION OF A WEAPON CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction for possession of a weapon, determined the evidence was legally insufficient to support the conviction. A co-defendant was seen (by the police) getting into a car with the weapon. Defendant also got into the car. The police followed. Before the police pulled the car over, when the car was out of sight, the weapon was thrown out of the car. A cell phone found near the weapon was tied to the defendant, but the weapon was not. The statutory presumption that a weapon in a vehicle is possessed by all in the vehicle did not apply because the weapon was in the possession of a codefendant when he got into the car:

We agree with defendant that the evidence is legally insufficient to support the conviction. There is no evidence that he owned or was operating the vehicle, nor is there evidence that he engaged in any other activity that would support a finding that he constructively possessed the weapon… Furthermore, the statutory presumption of possession set forth in Penal Law § 265.15 (3) also does not apply here. The statute provides that “[t]he presence in an automobile, other than a stolen one or a public omnibus, of any firearm . . . is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon . . . is found” … . The statute further provides, however, that the presumption does not apply, inter alia, “if such weapon . . . is found upon the person of one of the occupants therein” (§ 265.15 [3] [a]). Here, the weapon was not found in the vehicle, and the codefendant was holding it while he was observed entering the vehicle. Consequently, “the evidence is clearcut and leads to the sole conclusion that the weapon was . . . upon the person” of the codefendant … .

The People’s contention that defendant threw the weapon out the window, or assisted the codefendant in doing so, because it was found on the right side of the vehicle is based on speculation. Finally, the People introduced no evidence that would support a finding that defendant possessed the weapon as an accomplice. People v Willingham, 2018 NY Slip Op 00733, Fourth Dept 2-2-18

 

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NO WARRANT NEEDED FOR CELL SITE LOCATION INFORMATION, THE TERM ‘PERSON’ IN THE ARSON SECOND STATUTE REFERS TO A LIVING PERSON, BECAUSE THE VICTIMS WERE NOT ALIVE WHEN THE FIRE WAS SET, THE CONVICTION WAS REDUCED TO ARSON THIRD (FOURTH DEPT).

The Fourth Department, in a comprehensive decision dealing with several substantive issues not summarized here, affirmed defendant’s first degree murder (four counts) and burglary convictions, and reduced the arson second degree conviction to arson third degree. The victims were not alive when the fire was set. The definition of “person” (in the Arson second statute) was interpreted to refer to a living person. In addition, the court held that the motion to suppress the cell site location information (CSLI), which the police obtained without a warrant, and which placed defendant in the town where the crime was committed at the time of the crime, was properly denied:

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As the Fifth Circuit Court of Appeals has written, “[w]e understand that cell phone users may reasonably want their location information to remain private, just as they may want their trash, placed curbside in opaque bags . . . or the view of their property from 400 feet above the ground . . . to remain so. But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records (or anonymize them) or in lobbying elected representatives to enact statutory protections. The Fourth Amendment, safeguarded by the courts, protects only reasonable expectations of privacy” (Application of U.S. for Historical Cell Site Data, 724 F3d at 615).

With respect to defendant’s state constitutional challenge, we conclude that “there is no sufficient reason’ to afford cell site location information at issue here greater protection under the state constitution than it is afforded under the federal constitution” … . People v Taylor, 2018 NY Slip Op 00709, Fourth Dept 2-2-18

CRIMINAL LAW (NO WARRANT NEEDED FOR CELL SITE LOCATION INFORMATION, THE TERM ‘PERSON’ IN THE ARSON SECOND STATUTE REFERS TO A LIVING PERSON, BECAUSE THE VICTIMS WERE NOT ALIVE WHEN THE FIRE WAS SET, THE CONVICTION WAS REDUCED TO ARSON THIRD (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, NO WARRANT NEEDED FOR CELL SITE LOCATION INFORMATION, THE TERM ‘PERSON’ IN THE ARSON SECOND STATUTE REFERS TO A LIVING PERSON, BECAUSE THE VICTIMS WERE NOT ALIVE WHEN THE FIRE WAS SET, THE CONVICTION WAS REDUCED TO ARSON THIRD (FOURTH DEPT))/CELL SITE LOCATION INFORMATION (CSIL) (CRIMINAL LAW, NO WARRANT NEEDED FOR CELL SITE LOCATION INFORMATION, THE TERM ‘PERSON’ IN THE ARSON SECOND STATUTE REFERS TO A LIVING PERSON, BECAUSE THE VICTIMS WERE NOT ALIVE WHEN THE FIRE WAS SET, THE CONVICTION WAS REDUCED TO ARSON THIRD (FOURTH DEPT))/SEARCH AND SEIZURE (CELL SITE LOCATION INFORMATION, NO WARRANT NEEDED FOR CELL SITE LOCATION INFORMATION (FOURTH DEPT))/CELL PHONES (CRIMINAL LAW, CELL SITE LOCATION INFORMATION, NO WARRANT NEEDED FOR CELL SITE LOCATION INFORMATION (FOURTH DEPT))

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POSSESSION OF A FORGED INSTRUMENT CONVICTION REVERSED, NO FOUNDATION FOR TWO CATEGORIES OF HEARSAY EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction for possession of a forged instrument (counterfeit check), determined two categories of hearsay evidence were improperly admitted without foundation:

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… [T]he court “erred in admitting in evidence a printout of electronic data that was displayed on a computer screen [after] defendant presented a check, the allegedly forged instrument, to a bank teller. The People failed to establish that the printout falls within the business records exception to the hearsay rule . . . [because they] presented no evidence that the data displayed on the computer screen, resulting in the printout, was entered in the regular course of business” … . …

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… [T]he court improperly admitted an investigator’s testimony about the results of a search he ran in a credit bureau’s commercial database for email addresses and a telephone number contained in a cover letter that enclosed the counterfeit check defendant tried to cash. The People failed to establish the requisite foundation for this testimony inasmuch as the investigator did not testify that he “is familiar with the practices of [the] company that produced the records at issue” and that he “generally relies upon such records” … . People v Jones, 2018 NY Slip Op 00710, Fourth Dept 2-2-18

CRIMINAL LAW (EVIDENCE, HEARSAY, POSSESSION OF A FORGED INSTRUMENT CONVICTION REVERSED, NO FOUNDATION FOR TWO CATEGORIES OF HEARSAY EVIDENCE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, HEARSAY, POSSESSION OF A FORGED INSTRUMENT CONVICTION REVERSED, NO FOUNDATION FOR TWO CATEGORIES OF HEARSAY EVIDENCE (FOURTH DEPT))/HEARSAY (CRIMINAL LAW, POSSESSION OF A FORGED INSTRUMENT CONVICTION REVERSED, NO FOUNDATION FOR TWO CATEGORIES OF HEARSAY EVIDENCE (FOURTH DEPT))/BUSINESS RECORDS (HEARSAY,  POSSESSION OF A FORGED INSTRUMENT CONVICTION REVERSED, NO FOUNDATION FOR TWO CATEGORIES OF HEARSAY EVIDENCE (FOURTH DEPT))

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MURDER CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, over a two-justice dissent, determined the defendant’s murder conviction was against the weight of the evidence. The majority stated that the evidence demonstrated the defendant was probably guilty, but did not rise to proof beyond a reasonable doubt. The dissenters stated they “agreed” with the majority’s “implicit” determination that there was sufficient evidence to support the verdict, but they disagreed with the majority’s conclusion that the conviction was against the weight of the evidence. The decision describes the evidence in great detail which cannot be fairly summarized here. In a nutshell, there was evidence the defendant went into a motel room with the victim, where the victim was found dead. But the majority noted there was other evidence to suggest the victim had left the motel room at some point and someone other than the defendant was also in the room:

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The People’s case thus rested on three pillars of circumstantial evidence: (1) the fact that defendant entered the hotel with the victim at approximately 7:00 p.m., some 15 hours before his dead body was found in the hotel room; (2) the fact that defendant repeatedly lied to the police when he said that he did not know the victim and had never met him; and (3) the fact that the victim’s vehicle was found abandoned on a city street approximately six-tenths of a mile from defendant’s residence.

… [D]efendant’s presence in the room, although incriminating, is by no means conclusive considering that other people may have been in the room with the victim and that the Medical Examiner could not determine the time of death. As for defendant’s lies to the police, it appears that he may not have been living as an openly gay man—he had a girlfriend and children from different women— and he may have said that he did not know the victim so as not to reveal his sexual orientation. Finally, although the presence of the vehicle so close to defendant’s residence is suspicious, the victim was known to drive around the city looking for sexual partners … . * * *

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Although the police cannot be faulted for arresting defendant, nor the People for prosecuting him, the evidence at trial simply failed to prove defendant’s guilt beyond a reasonable doubt. There are too many unanswered questions for us to be comfortable that the right person is serving a life sentence for the victim’s murder.

From the dissent:  We agree with the implicit determination of our colleagues that there is sufficient evidence to support the jury’s verdict of murder in the second degree  … , but we respectfully disagree with their conclusion that the verdict is against the weight of the evidence. People v Carter, 2018 NY Slip Op 00711, Fourth Dept 2-2-18

CRIMINAL LAW (MURDER CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, (MURDER CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE/AGAINST THE WEIGHT OF THE EVIDENCE (CRIMINAL LAW, MURDER CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT))

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FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the arresting officer did not have cause to frisk the defendant, which revealed a weapon. The motion to suppress the weapon should have been granted. The officer had responded to a call about a shooting at a bar which described the suspect as a male Hispanic. The officer found a bullet fragment and some blood in a parking lot and he approached a group of people who were about 10 to 25 feet away. One person in the group appeared to the officer to be a male Hispanic. Someone in the group said they didn’t hear or see anything. The officer then frisked the defendant, who is black, not Hispanic:

… [T]he police had an objective, credible reason to approach the group of five people in the parking lot and to request information in light of the report of a shooting at or near that location at some unidentified earlier time. Thus, we conclude that the police encounter was lawful at its inception… . The People correctly concede, however, that the officer’s encounter with defendant constituted a level three forcible detention under the four-tiered De Bour framework …, and thus required “a reasonable suspicion that [defendant] was involved in a felony or misdemeanor” … .

We conclude that, “[b]ecause of the lack of correspondence between defendant’s appearance and the description of the suspected [shooter that was] transmitted to the officer[] . . . , the officer[] had no basis for concluding that the reported crime had been committed by defendant” … . “Nor can the [frisk of defendant] and seizure of the gun be justified as having been in the interests of the officer[‘s] safety, since there was no testimony that the officer[] believed defendant to be carrying a weapon” … ,and the People presented no other evidence establishing that the officer had reason to fear for his safety … . People v Roberts, 2018 NY Slip Op 00725, Fourth Dept 2-2-18

 

CRIMINAL LAW (FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/SEARCH AND SEIZURE  (FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/STREET STOPS (FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW, FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))

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FAILURE TO INSTRUCT JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED ON THE JUSTIFICATION DEFENSE PRECLUDED CONSIDERATION OF THE REMAINING CHARGES REQUIRED REVERSAL IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, reversing Supreme Court in the interest of justice (error not preserved), determined that the judge’s failure to instruct the jury that a not guilty verdict on the top count based on the justification defense precluded consideration of the remaining charges was reversible error. The top count was attempted murder and defendant was convicted of assault second degree:

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… [T]the court’s charge failed to convey that an acquittal on the top count of attempted second-degree murder based on a finding of justification would preclude consideration of the remaining charges. We find that this error was not harmless and that it warrants reversal in the interest of justice … . People v Marcucci, 2018 NY Slip Op 00634, First Dept 2-1-18

CRIMINAL LAW (FAILURE TO INSTRUCT JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED ON THE JUSTIFICATION DEFENSE PRECLUDED CONSIDERATION OF THE REMAINING CHARGES REQUIRED REVERSAL IN THE INTEREST OF JUSTICE (FIRST DEPT))/APPEALS (CRIMINAL LAW, FAILURE TO INSTRUCT JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED ON THE JUSTIFICATION DEFENSE PRECLUDED CONSIDERATION OF THE REMAINING CHARGES REQUIRED REVERSAL IN THE INTEREST OF JUSTICE (FIRST DEPT))/JUSTIFICATION DEFENSE (CRIMINAL LAW, FAILURE TO INSTRUCT JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED ON THE JUSTIFICATION DEFENSE PRECLUDED CONSIDERATION OF THE REMAINING CHARGES REQUIRED REVERSAL IN THE INTEREST OF JUSTICE (FIRST DEPT))

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DEFENDANT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE WAS TOLD ONLY OF POTENTIAL IMMIGRATION CONSEQUENCES OF HIS PLEA, MATTER REMANDED TO ALLOW DEFENDANT TO MAKE A MOTION TO VACATE HIS PLEA (FIRST DEPT).

The First Department determined defendant was not afforded effective assistance of counsel because he was told only that his plea had potential immigration consequences when in fact deportation was mandatory:

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Defendant was deprived of effective assistance when his counsel advised him that his plea would have “potential immigration consequences,” where it is clear that his drug-related conviction would trigger mandatory deportation under 8 USC § 1227(a)(2)(B)(I) … . The remarks made by counsel on the record are sufficient to permit review on direct appeal … . Thus, we hold this matter in abeyance to afford defendant the opportunity to move to vacate his plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea. People v Pequero, 2018 NY Slip Op 00619, First Dept 2-1-18

CRIMINAL LAW (DEPORTATION, DEFENDANT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE WAS TOLD ONLY OF POTENTIAL IMMIGRATION CONSEQUENCES OF HIS PLEA, MATTER REMANDED TO ALLOW DEFENDANT TO MAKE A MOTION TO VACATE HIS PLEA (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEPORTATION, DEFENDANT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE WAS TOLD ONLY OF POTENTIAL IMMIGRATION CONSEQUENCES OF HIS PLEA, MATTER REMANDED TO ALLOW DEFENDANT TO MAKE A MOTION TO VACATE HIS PLEA (FIRST DEPT))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, DEPORTATION, DEFENDANT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE WAS TOLD ONLY OF POTENTIAL IMMIGRATION CONSEQUENCES OF HIS PLEA, MATTER REMANDED TO ALLOW DEFENDANT TO MAKE A MOTION TO VACATE HIS PLEA (FIRST DEPT))/DEPORTATION (CRIMINAL LAW, ATTORNEYS, DEFENDANT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE WAS TOLD ONLY OF POTENTIAL IMMIGRATION CONSEQUENCES OF HIS PLEA, MATTER REMANDED TO ALLOW DEFENDANT TO MAKE A MOTION TO VACATE HIS PLEA (FIRST DEPT))/PLEA, MOTION TO VACATE (CRIMINAL LAW, DEPORTATION, DEFENDANT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE WAS TOLD ONLY OF POTENTIAL IMMIGRATION CONSEQUENCES OF HIS PLEA, MATTER REMANDED TO ALLOW DEFENDANT TO MAKE A MOTION TO VACATE HIS PLEA (FIRST DEPT))/IMMIGRATION (CRIMINAL LAW, DEFENDANT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE WAS TOLD ONLY OF POTENTIAL IMMIGRATION CONSEQUENCES OF HIS PLEA, MATTER REMANDED TO ALLOW DEFENDANT TO MAKE A MOTION TO VACATE HIS PLEA (FIRST DEPT))

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CLOSURE OF COURTROOM BASED UPON WITNESS’S FEAR WAS PROPER (FIRST DEPT).

The First Department noted that the closure of the courtroom during a prosecution witness’s testimony was proper in this gang-related murder case:

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The record established an overriding interest in partially, and later completely, closing the courtroom during the testimony of an identifying eyewitness (see Waller v Georgia, 467 US 39, 48 [1984]), and the other requirements of Waller were likewise satisfied as to both closures. The witness’s “extreme fear of testifying in open court was sufficient to establish an overriding interest” … , because the witness’s inability to testify without the closures at issue “could have severely undermined the truth seeking function of the court” … in this gang-related murder case. …

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… [T]he court conducted a hearing at which the witness testified that he previously had been threatened for cooperating with the prosecution in another trial, that he had heard threats made against potential prosecution witnesses in the present case, and that he and his family lived in the same neighborhood where the shooting occurred. The court was entitled to credit the witness’s testimony that he felt threatened by defendant’s cousin and could not testify in his presence … . Although the cousin did not make any direct threats to the witness, he appeared to be closely associated with a person who did so. People v Sharp, 2018 NY Slip Op 00623, First Dept 2-1-18

CRIMINAL LAW (CLOSURE OF COURTROOM BASED UPON WITNESS’S FEAR WAS PROPER (FIRST DEPT))/CLOSURE OF COURTROOM (CRIMINAL LAW, CLOSURE OF COURTROOM BASED UPON WITNESS’S FEAR WAS PROPER (FIRST DEPT))/PUBLIC TRIAL (CRIMINAL LAW, CLOSURE OF COURTROOM BASED UPON WITNESS’S FEAR WAS PROPER (FIRST DEPT))/CONSTITUTIONAL LAW (CRIMINAL LAW, PUBLIC TRIAL, CLOSURE OF COURTROOM BASED UPON WITNESS’S FEAR WAS PROPER (FIRST DEPT))

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WAIVER OF RIGHT TO APPEAL INVALID (SECOND DEPT).

The Second Department determined defendant’s waiver of his right to appeal was not valid:

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… [T]he record of the plea proceeding did not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal. The Supreme Court, after inquiring of counsel whether the defendant had executed a written waiver, advised the defendant: “[Y]ou have just executed the waiver of appeal. And by doing so, you have given up your right to appeal, which means there will be no appeal with regards to anything in your case.” Instead of ascertaining whether the defendant had made a knowing, voluntary, and intelligent choice to waive his right to appeal as a condition of his plea, the court merely informed the defendant that he had already waived his right to appeal by executing the appeal waiver and then confirmed that the defendant understood this established fact. “[A] defendant does not validly waive his or her right to appeal where the colloquy suggests that waiving the right to appeal [is] mandatory rather than a right which the defendant [is] being asked to voluntarily relinquish'” … . Moreover, the court failed to establish on the record that the defendant read and understood the written waiver, or discussed the waiver with his counsel … . People v Johnson, 2018 NY Slip Op 00567, Second Dept 1-31-18

CRIMINAL LAW (APPEALS, WAIVER OF RIGHT TO APPEAL INVALID (SECOND DEPT))/APPEALS (CRIMINAL LAW, WAIVER OF RIGHT TO APPEAL INVALID (SECOND DEPT))/WAIVER (RIGHT TO APPEAL, CRIMINAL LAW WAIVER OF RIGHT TO APPEAL INVALID (SECOND DEPT))

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DEFENSE COUNSEL, BY TAKING A POSITION ADVERSE TO THAT OF THE DEFENDANT WITH RESPECT TO DEFENDANT’S PRO SE MOTION TO SET ASIDE THE VERDICT, DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, MATTER REMITTED FOR CONSIDERATION OF THE MOTION (SECOND DEPT).

The Second Department determined defendant was entitled to consideration of his pro se motion to set aside the verdict on ineffective assistance grounds. Defense counsel told the court he did not adopt the motion and didn’t think it was correct. By taking a position adverse to his client’s, defense counsel had deprived defendant of effective assistance:

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Defense counsel, by taking a position adverse to that of his client on the motion to set aside the verdict pursuant to CPL 330.30, deprived the defendant of effective assistance of counsel … . Accordingly, since the appellant has not addressed the merits of the CPL 330.30 motion in his brief, but rather, requests remittitur to the Supreme Court, we remit the matter for further proceedings on the merits of the motion and thereafter a report to this Court limited to the Supreme Court’s findings with respect to the motion and whether the defendant has established his entitlement to the relief sought in his motion. We express no opinion as to the merits of the defendant’s motion and we decide no other issues at this time. People v Freire, 2018 NY Slip Op 00564, Second Dept 1-31-18

CRIMINAL LAW (ATTORNEYS, DEFENSE COUNSEL, BY TAKING A POSITION ADVERSE TO THAT OF THE DEFENDANT WITH RESPECT TO DEFENDANT’S PRO SE MOTION TO SET ASIDE THE VERDICT, DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, MATTER REMITTED FOR CONSIDERATION OF THE MOTION (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL, BY TAKING A POSITION ADVERSE TO THAT OF THE DEFENDANT WITH RESPECT TO DEFENDANT’S PRO SE MOTION TO SET ASIDE THE VERDICT, DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, MATTER REMITTED FOR CONSIDERATION OF THE MOTION (SECOND DEPT))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, DEFENSE COUNSEL, BY TAKING A POSITION ADVERSE TO THAT OF THE DEFENDANT WITH RESPECT TO DEFENDANT’S PRO SE MOTION TO SET ASIDE THE VERDICT, DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, MATTER REMITTED FOR CONSIDERATION OF THE MOTION (SECOND DEPT))

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