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FAILURE TO ADEQUATELY QUESTION JUROR ABOUT HER ABILITY TO BE FAIR AFTER SHE INDICATED SHE DID NOT THINK A PERSON SHOULD RESPOND TO VIOLENCE WITH VIOLENCE REQUIRED REVERSAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the court did not sufficiently question a juror about her ability to be fair after she indicated she didn’t think a person should respond to violence with violence:

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Here, during voir dire, a prospective juror indicated in response to questioning by defense counsel that she felt “you are never in the right if you respond to aggression with physical violence” and should “always turn the other cheek,” and that it was possible her belief could influence how she would decide the case. When the Supreme Court followed up by asking the prospective juror if her “religious beliefs” affected her verdict when she previously served on a criminal jury, she stated “I’m an atheist.” The court did not inquire further into the prospective juror’s ability to render an impartial verdict.

Under the circumstances of this case, the prospective juror’s statements revealed a state of mind likely to preclude her from rendering an impartial verdict, and thus, it was incumbent upon the Supreme Court to ascertain that she would render an impartial verdict based on the evidence … . The court failed to obtain an unequivocal assurance from the prospective juror, who never indicated that “religious beliefs” might influence her decision, that she would render an impartial verdict based on the evidence despite her feelings about the use of violence … . Further, the court’s collective inquiry to the whole panel as to whether “everybody here” could be fair and impartial was insufficient to constitute an unequivocal declaration of impartiality from the prospective juror at issue … . People v Francois, 2017 NY Slip Op 08844, Second Dept 12-20-17

 

CRIMINAL LAW (FAILURE TO ADEQUATELY QUESTION JUROR ABOUT HER ABILITY TO BE FAIR AFTER SHE INDICATED SHE DID NOT THINK A PERSON SHOULD RESPOND TO VIOLENCE WITH VIOLENCE REQUIRED REVERSAL (SECOND DEPT))/VOIR DIRE (CRIMINAL LAW, FAILURE TO ADEQUATELY QUESTION JUROR ABOUT HER ABILITY TO BE FAIR AFTER SHE INDICATED SHE DID NOT THINK A PERSON SHOULD RESPOND TO VIOLENCE WITH VIOLENCE REQUIRED REVERSAL (SECOND DEPT))/JURORS (CRIMINAL LAW, VOIR DIRE, FAILURE TO ADEQUATELY QUESTION JUROR ABOUT HER ABILITY TO BE FAIR AFTER SHE INDICATED SHE DID NOT THINK A PERSON SHOULD RESPOND TO VIOLENCE WITH VIOLENCE REQUIRED REVERSAL (SECOND DEPT))

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DETERMINATION OF MOTION TO TAKE A BUCCAL SWAB FOR DNA TESTING IS A CRITICAL STAGE OF THE PROCEEDINGS REQUIRING REPRESENTATION BY COUNSEL, BECAUSE DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT’S GUILTY PLEAS MUST BE VACATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over an extensive three-judge dissent, determined defendant was deprived of counsel at a critical stage of the prosecution, i.e., when the People made a motion to take a buccal swap for DNA testing. The appellate division properly vacated defendant’s pleas, but should not have dismissed the indictment:

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Here, the People filed their motion to compel the DNA test and served the motion on retained counsel in court. As the Appellate Division found, the trial court — in defendant’s absence — subsequently granted both the retained defense counsel’s motion to be relieved from representing defendant for failure to pay his fee and the People’s DNA discovery motion, which it granted based on the “putative consent” it inferred from retained counsel’s silence. Later the same day that counsel was relieved, defendant appeared in court. Knowing defendant was unrepresented, the court, rather than remain neutral, proceeded to act in place of counsel throughout an extensive colloquy, telling defendant that there were no bases on which to challenge the DNA sample order. In response to the court, defendant stated that he had not spoken with his attorney about the prosecution’s motion and did not wish to consent to giving a sample. Notwithstanding defendant’s entreaties, the court rejected his repeated requests for an attorney to advise him regarding the motion. Instead, the court told defendant “an attorney [was] not going to be able to help,” and that there was “no basis for fighting [the test].” When defendant said he did not “know the law,” the judge responded “I know the law.” On these facts, the Appellate Division correctly determined that “the pretrial proceedings concerning the DNA test were ‘critical’ within the meaning of the law … . Accordingly, defendant was deprived his right to counsel.

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We reject the dissent’s conclusion that defendant was not denied counsel during a critical stage of the proceeding, as that determination is contrary to law and would require that we distort the factual record. As the People concede, there was no express consent to their request for the DNA sample, either by defendant or by retained counsel. Nor was there any affirmative conduct or errant statement by defendant or counsel from which implied consent could be inferred. Instead, as the People acknowledge, the court issued its order based only on retained counsel’s failure to reply to the People’s motion to compel the buccal swab. Under the circumstances here, that is not a proper basis for finding defendant’s consent … . Further, as the record unambiguously shows, shortly after the court granted retained counsel’s request to withdraw — leaving defendant unrepresented — defendant appeared in court, expressly denied consent, and repeatedly stated he wanted counsel to assist him in responding to the People’s motion [FN5]. Yet, rather than appointing counsel, the court told defendant there was no basis to oppose the motion. Notwithstanding these facts, the dissent believes defendant was represented on the motion for the DNA sample; we do not. People v Smith, 2017 NY Slip Op 08798, CtApp 12-19-17

 

 

CRIMINAL LAW (DETERMINATION OF MOTION TO TAKE A BUCCAL SWAB FOR DNA TESTING IS A CRITICAL STAGE OF THE PROCEEDINGS REQUIRING REPRESENTATION BY COUNSEL, BECAUSE DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT’S GUILTY PLEAS MUST BE VACATED (CT APP))/ATTORNEYS (CRIMINAL LAW, DETERMINATION OF MOTION TO TAKE A BUCCAL SWAB FOR DNA TESTING IS A CRITICAL STAGE OF THE PROCEEDINGS REQUIRING REPRESENTATION BY COUNSEL, BECAUSE DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT’S GUILTY PLEAS MUST BE VACATED (CT APP))/DNA TESTING (CRIMINAL LAW, DETERMINATION OF MOTION TO TAKE A BUCCAL SWAB FOR DNA TESTING IS A CRITICAL STAGE OF THE PROCEEDINGS REQUIRING REPRESENTATION BY COUNSEL, BECAUSE DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT’S GUILTY PLEAS MUST BE VACATED (CT APP))

WHERE THE DEFENDANT AND THE IDENTIFYING WITNESS APPEAR TO BELONG TO DIFFERENT RACIAL GROUPS, THE DEFENDANT, UPON REQUEST, IS ENTITLED TO A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION, IRRESPECTIVE OF WHETHER THE ISSUE WAS RAISED AT TRIAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a two-judge concurring opinion, determined that, in a case where there is a question whether defendant and the identifying witness belong to different racial groups, upon request, a defendant is entitled to a so-called cross-racial identification jury instruction. The issue need not have come up at trial either during cross-examination of the identifying witness or by the presentation of expert opinion evidence:

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In light … the cross-race effect, which has been accepted by a near consensus in the relevant scientific community of cognitive and social psychologists, and recognizing the very significant part that inaccurate identifications play in wrongful convictions, we reach the following holding: in a case in which a witness’s identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give, upon request, during final instructions, a jury charge on the cross-race effect, instructing (1) that the jury should consider whether there is a difference in race between the defendant and the witness who identified the defendant, and (2) that, if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race and (b) whether the difference in race affected the accuracy of the witness’s identification. The instruction would not be required when there is no dispute about the identity of the perpetrator nor would it be obligatory when no party asks for the charge … . People v Boone, 2017 NY Slip Op 08713, CtApp 12-14-17

 

CRIMINAL LAW (JURY INSTRUCTIONS, IDENTIFICATION, WHERE THE DEFENDANT AND THE IDENTIFYING WITNESS APPEAR TO BELONG TO DIFFERENT RACIAL GROUPS, THE DEFENDANT, UPON REQUEST, IS ENTITLED TO A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION, IRRESPECTIVE OF WHETHER THE ISSUE WAS RAISED AT TRIAL (CT APP))/IDENTIFICATION (CRIMINAL LAW, JURY INSTRUCTIONS, IDENTIFICATION, WHERE THE DEFENDANT AND THE IDENTIFYING WITNESS APPEAR TO BELONG TO DIFFERENT RACIAL GROUPS, THE DEFENDANT, UPON REQUEST, IS ENTITLED TO A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION, IRRESPECTIVE OF WHETHER THE ISSUE WAS RAISED AT TRIAL (CT APP))/JURY INSTRUCTIONS (CRIMINAL LAW, CROSS-RACIAL IDENTIFICATION,  WHERE THE DEFENDANT AND THE IDENTIFYING WITNESS APPEAR TO BELONG TO DIFFERENT RACIAL GROUPS, THE DEFENDANT, UPON REQUEST, IS ENTITLED TO A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION, IRRESPECTIVE OF WHETHER THE ISSUE WAS RAISED AT TRIAL (CT APP))/CROSS-RACIAL IDENTIFICATION (CRIMINAL LAW, JURY INSTRUCTIONS, WHERE THE DEFENDANT AND THE IDENTIFYING WITNESS APPEAR TO BELONG TO DIFFERENT RACIAL GROUPS, THE DEFENDANT, UPON REQUEST, IS ENTITLED TO A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION, IRRESPECTIVE OF WHETHER THE ISSUE WAS RAISED AT TRIAL (CT APP))

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DEFENDANT WAS NOT FULLY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea in the interest of justice, determined the defendant was not sufficiently informed of the rights he was giving up by entering a plea:

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“When a defendant opts to plead guilty, he [or she] must waive certain constitutional rights — the privilege against self-incrimination and the rights to a jury trial and to be confronted by witnesses”… . “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”… .. The Court of Appeals has made clear that the trial judge has the responsibility to ensure that the defendant fully understands the plea and its consequences … .  During the plea colloquy, County Court did not reference the privilege against self-incrimination or the right to be confronted by witnesses and, although defendant was advised of his right to a trial, the court did not specify a jury trial. “We cannot conclude that defendant’s guilty plea was knowing, voluntary and intelligent as there was neither an affirmative showing on the record that defendant waived his constitutional rights nor any indication that he consulted with his attorney about the constitutional consequences of a guilty plea” … . People v Cotto, 2017 NY Slip Op 08759, Third Dept 12-14-17

 

CRIMINAL LAW (GUILTY PLEA, DEFENDANT WAS NOT FULLY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/GUILTY PLEA (CRIMINAL LAW, DEFENDANT WAS NOT FULLY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT WAS NOT FULLY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/GUILTY PLEA (CRIMINAL LAW, DEFENDANT WAS NOT FULLY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))

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STATE’S EXPERTS SHOULD NOT HAVE RELIED ON HEARSAY EVIDENCE OF CONVICTIONS WHICH WERE VACATED BASED UPON DNA EVIDENCE, NEW MENTAL ABNORMALITY TRIAL ORDERED, SEALED CRIMINAL RECORDS PROPERLY CONSIDERED, FAILURE HOLD PROBABLE CAUSE HEARING AND TRIAL WITHIN STATUTORY TIME FRAMES DID NOT VIOLATE DUE PROCESS (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Sgroi, determined that a detained sex offender, Kerry K, was entitled to a new civil commitment trial on the issue of mental abnormality and, if necessary, a new dispositional hearing. The finding that Kerry K suffered from a mental abnormality was based in part on hearsay about a conviction which had been vacated based upon DNA evidence (after defendant served 11 years in prison). The Second Department further held that the fact that the probable cause hearing and trial did not occur within the statutory time-frames was not a jurisdictional defect or a violation of due process. And the fact that sealed criminal records were relied upon by the state’s experts was deemed proper:

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… [T]he failure to conduct the probable cause hearing and trial within the statutory time frames did not deprive the court of jurisdiction or, under the circumstances, violate Kerry K.’s due process rights. … Mental Hygiene Law § 10.08(c) permits the State to obtain, from local government entities, sealed records relating to an offender’s commission or alleged commission of a sex offense. … [W]e conclude that the court erred in admitting the hearsay basis testimony regarding convictions of which Kerry K. was exonerated … . * * *

The experts’ testimony about the vacated 1982 convictions … did not satisfy the reliability and relevance requirements for admission of hearsay basis evidence. As the Court of Appeals has observed, “unlike adjudications and admissions of guilt, an acquittal cannot provide the basis for reliability” … . Further, “[c]harges that resulted in acquittal are surely more prejudicial than probative on the question of the respondent’s mental abnormality” … . Thus, “acquittal of criminal charges bars admission of those accusations, absent some other basis to substantiate them” … .

In the present case, the information regarding the 1982 convictions was even less reliable and relevant than information concerning charges of which a respondent has merely been acquitted. An acquittal on a particular charge indicates that the People were unable to prove the defendant’s guilt of that charge beyond a reasonable doubt. Here, in contrast, the 1982 convictions were vacated, on consent of the Suffolk County District Attorney’s Office, based on the results of DNA testing conducted by Kerry K.’s and the State’s experts, and Kerry K. later affirmatively proved his innocence by clear and convincing evidence … . Thus, it was error to permit the State’s experts to testify about the 1982 convictions, and this error deprived Kerry K. of due process … . Matter of State of New York v Kerry K., 2017 NY Slip Op 08671, Second Dept 12-13-17

 

MENTAL HYGIENE LAW (SEX OFFENDERS, CIVIL COMMITMENT, STATE’S EXPERTS SHOULD NOT HAVE RELIED ON HEARSAY EVIDENCE OF CONVICTIONS WHICH WERE VACATED BASED UPON DNA EVIDENCE, NEW MENTAL ABNORMALITY TRIAL ORDERED, SEALED CRIMINAL RECORDS PROPERLY CONSIDERED, FAILURE HOLD PROBABLE CAUSE HEARING AND TRIAL WITH STATUTORY TIME FRAMES DID NOT VIOLATE DUE PROCESS (SECOND DEPT))/EVIDENCE (MENTAL HYGIENE LAW, SEX OFFENDERS, CIVIL COMMITMENT, STATE’S EXPERTS SHOULD NOT HAVE RELIED ON HEARSAY EVIDENCE OF CONVICTIONS WHICH WERE VACATED BASED UPON DNA EVIDENCE, NEW MENTAL ABNORMALITY TRIAL ORDERED, SEALED CRIMINAL RECORDS PROPERLY CONSIDERED, FAILURE HOLD PROBABLE CAUSE HEARING AND TRIAL WITH STATUTORY TIME FRAMES DID NOT VIOLATE DUE PROCESS (SECOND DEPT))/SEX OFFENDERS (CIVIL COMMITMENT, STATE’S EXPERTS SHOULD NOT HAVE RELIED ON HEARSAY EVIDENCE OF CONVICTIONS WHICH WERE VACATED BASED UPON DNA EVIDENCE, NEW MENTAL ABNORMALITY TRIAL ORDERED, SEALED CRIMINAL RECORDS PROPERLY CONSIDERED, FAILURE HOLD PROBABLE CAUSE HEARING AND TRIAL WITH STATUTORY TIME FRAMES DID NOT VIOLATE DUE PROCESS (SECOND DEPT))/CIVIL COMMITMENT (SEX OFFENDERS STATE’S EXPERTS SHOULD NOT HAVE RELIED ON HEARSAY EVIDENCE OF CONVICTIONS WHICH WERE VACATED BASED UPON DNA EVIDENCE, NEW MENTAL ABNORMALITY TRIAL ORDERED, SEALED CRIMINAL RECORDS PROPERLY CONSIDERED, FAILURE HOLD PROBABLE CAUSE HEARING AND TRIAL WITH STATUTORY TIME FRAMES DID NOT VIOLATE DUE PROCESS (SECOND DEPT))

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SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NO OPPORTUNITY FOR APPELLATE REVIEW, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s rape conviction, determined Supreme Court should have ordered the victim’s psychiatric records for an in camera review for relevance:

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Prior to trial, the People disclosed that the victim had indicated that she had received treatment for bipolar disorder and depression and, further, produced a copy of the medical record from the sexual assault examination that was conducted on the day after the incident in which the victim had also reported a past medical history of “bipolar” and that she was taking prescription medications for that condition. Defendant requested that the court issue a subpoena duces tecum to obtain the victim’s mental health records and conduct an in camera review to ascertain whether they contained any information relevant and material to the victim’s credibility. …

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Supreme Court erred when it declined to order production of the victim’s mental health records and to review them in camera. Inasmuch as those records were never produced and were not part of the record, we are unable to remit the matter for a reconstruction hearing … . Moreover, without knowing the content of those records, we are unable to determine whether the information that they contain is merely cumulative to the information provided to defendant about the victim’s mental health history that was used as a basis for cross-examination, or whether the records contain additional relevant and material information bearing on her credibility. Similarly, our lack of knowledge of the contents of the victim’s mental health records precludes us from determining whether the court’s error in this regard was harmless. Accordingly, the judgment of conviction must be reversed and the matter remitted for a new trial. People v Kiah, 2017 NY Slip Op 08752, Third Dept 12-13-17

 

CRIMINAL LAW (SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NEW TRIAL ORDERED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NEW TRIAL ORDERED (THIRD DEPT))/PSYCHIATRIC RECORD (CRIMINAL LAW, RAPE TRIAL, SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NEW TRIAL ORDERED (THIRD DEPT))/IN CAMERA REVIEW (CRIMINAL LAW, PSYCHIATRIC RECORD, SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NEW TRIAL ORDERED (THIRD DEPT))/VICTIM PSYCHIATRIC RECORD (CRIMINAL LAW, EVIDENCE, RAPE, SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NEW TRIAL ORDERED (THIRD DEPT))/RAPE (EVIDENCE, PSYCHIATRIC RECORD, SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NEW TRIAL ORDERED (THIRD DEPT))/APPEALS (CRIMINAL LAW, PSYCHIATRIC RECORD,  SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NO OPPORTUNITY FOR APPELLATE REVIEW, NEW TRIAL ORDERED (THIRD DEPT))

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ABSENCE OF A SIGNED WRITTEN WAIVER OF INDICTMENT REQUIRED BY THE NYS CONSTITUTION IS A JURISDICTIONAL DEFECT, GUILTY PLEA VACATED (SECOND DEPT).

The Second Department vacated defendant’s guilty plea because the record did not include a signed written waiver of indictment, as required by the NYS Constitution:

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… [T]he record on appeal does not contain a signed waiver of the defendant’s right to be prosecuted by an indictment. Although a written waiver of indictment appears in the record, it was not signed by the defendant. Furthermore, contrary to the People’s contention, although the transcript of the plea proceedings indicates that the defendant signed a document denominated as a written indictment waiver, that reference in the transcript alone is insufficient to satisfy the constitutional requirement that a waiver of indictment “be evidenced by written instrument signed by the defendant” … . Since the failure to comply with this constitutional requirement amounts to a jurisdictional defect in the plea proceedings … . People v Eulo, 2017 NY Slip Op 08684, Second Dept 12-13-17

 

CRIMINAL LAW (WAIVER OF INDICTMENT, ABSENCE OF A SIGNED WRITTEN WAIVER OF INDICTMENT REQUIRED BY THE NYS CONSTITUTION IS A JURISDICTIONAL DEFECT, GUILTY PLEA VACATED (SECOND DEPT))/CONSTITUTIONAL LAW  (WAIVER OF INDICTMENT, ABSENCE OF A SIGNED WRITTEN WAIVER OF INDICTMENT REQUIRED BY THE NYS CONSTITUTION IS A JURISDICTIONAL DEFECT, GUILTY PLEA VACATED (SECOND DEPT))/INDICTMENT, WAIVER OF (ABSENCE OF A SIGNED WRITTEN WAIVER OF INDICTMENT REQUIRED BY THE NYS CONSTITUTION IS A JURISDICTIONAL DEFECT, GUILTY PLEA VACATED (SECOND DEPT)

PAROLE PROPERLY RESCINDED BASED UPON PETITIONER’S BEHAVIOR AT THE RESCISSION HEARING AND VICTIM IMPACT STATEMENTS PROVIDED AFTER PETITIONER HAD BEEN RELEASED (THIRD DEPT).

The Third Department determined petitioner-inmate’s release on parole was properly rescinded based upon his behavior at the rescission hearing and victim impact statements. The victim’s family had not be notified of the initial parole hearing and therefore had not submitted victim impact statement prior to petitioner’s release:

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In October 1995, petitioner approached a vehicle at the end of his driveway that contained his friend Steven Sedore and petitioner’s ex-wife, who were there to pick up the daughter of petitioner and his ex-wife. Petitioner shot and killed Sedore as he sat in the vehicle, and viciously attacked his ex-wife, causing serious injuries. Petitioner ultimately pleaded guilty to manslaughter in the first degree and attempted manslaughter in the first degree and was sentenced to an aggregate prison term of 20 to 40 years. …

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… [W]e disagree with Supreme Court’s finding that respondent improperly relied upon these statements solely because they were submitted after his open release date had been set. The court based this determination upon the Court of Appeals’ decision in Matter of Costello v New York State Bd. of Parole (23 NY3d 1002 [2014]), in which the Court concluded that respondent improperly rescinded a parole release based upon information in victim impact statements that had been submitted after it had set an open release date … . … [W]e do not interpret the Court’s decision as precluding respondent from ever considering victim impact statements submitted after an open release date has been granted in determining whether parole should be rescinded … .

The victim impact statements at issue were submitted by three of Sedore’s sisters and a brother-in-law. One of the sisters had already provided an impact statement at petitioner’s sentencing hearing, but the other family members had not done so. The statements submitted by the other sisters referenced specific threats that petitioner had made to them — including during sentencing where he allegedly pointed his finger at one sister and mouthed the words “you are dead,” and also ran his finger across his throat while looking at the family. One of the sisters also stated that petitioner sent her letters and a get well card from prison when she was in the hospital, which made her feel uncomfortable knowing that “he knew everything that was going on in my life.” These incidents, which had not previously been disclosed, constitute “significant information” and provide substantial evidence supporting respondent’s rescission of parole … . Matter of Thorn v New York State Bd. of Parole, 2017 NY Slip Op 08566, Third Dept 12-7-17

 

CRIMINAL LAW (PAROLE PROPERLY RESCINDED BASED UPON PETITIONER’S BEHAVIOR AT THE RESCISSION HEARING AND VICTIM IMPACT STATEMENTS PROVIDED AFTER PETITIONER HAD BEEN RELEASED (THIRD DEPT))/PAROLE (RESCISSION, PAROLE PROPERLY RESCINDED BASED UPON PETITIONER’S BEHAVIOR AT THE RESCISSION HEARING AND VICTIM IMPACT STATEMENTS PROVIDED AFTER PETITIONER HAD BEEN RELEASED (THIRD DEPT))/VICTIM IMPACT STATEMENTS (PAROLE PROPERLY RESCINDED BASED UPON PETITIONER’S BEHAVIOR AT THE RESCISSION HEARING AND VICTIM IMPACT STATEMENTS PROVIDED AFTER PETITIONER HAD BEEN RELEASED (THIRD DEPT))

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THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE’S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the trial judge should have granted the People’s application to relieve defense counsel. Defense counsel had interviewed a prosecution witness alone. During the interview the witness had recanted his identification of the defendant as the shooter. Defendant wanted defense counsel to continue representing him but did not waive the conflict:

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… [D]efense counsel’s actions of interviewing the prosecution’s main witness alone and being the only person who could testify to the witness’s recantation of his identification of the defendant as a shooter created an actual conflict of interest. Defense counsel was faced with the choice of testifying on behalf of his client, which would result in his disqualification, or not presenting evidence of an exculpatory statement … . Under the circumstances, especially in light of the defendant’s refusal to waive any conflict, the County Court erred in denying the People’s application to relieve defense counsel. People v Lawrence, 2017 NY Slip Op 08538, Second Dept 12-6-17

 

CRIMINAL LAW (ATTORNEYS, CONFLICT OF INTEREST, THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE’S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, CONFLICT OF INTEREST, THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE’S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, ATTORNEYS, CONFLICT OF INTEREST. THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE’S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CONFLICT OF INTEREST (ATTORNEYS, CRIMINAL LAW, , THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE’S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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SUBSTANTIAL PAIN ELEMENT OF ASSAULT THIRD EXPLAINED (FIRST DEPT).

The First Department determined the proof of the “substantial pain” element of assault third was sufficient to support conviction:

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The verdict was supported by legally sufficient evidence and was not against the weight of the evidence … . There is no basis for disturbing the jury’s credibility determinations. The jury reasonably believed that defendant intended to forcibly take the victim’s property when he hit the victim in the head and immediately grabbed at his pocket … .

There was also ample proof of physical injury, because the victim testified that due to the severe pain in his mouth, it was difficult for him to open his mouth for two days, and he could not eat during that time… .. The statutory element of “substantial pain” may be satisfied by relatively minor injuries causing moderate, but “more than slight or trivial pain”…, even in the absence of any medical treatment … . People v Cordero, 2017 NY Slip Op 08466, First Dept 12-5-17

 

CRIMINAL LAW (ASSAULT, SUBSTANTIAL PAIN ELEMENT OF ASSAULT THIRD EXPLAINED (FIRST DEPT))/ASSAULT (CRIMINAL LAW, SUBSTANTIAL PAIN, SUBSTANTIAL PAIN ELEMENT OF ASSAULT THIRD EXPLAINED (FIRST DEPT))/SUBSTANTIAL PAIN (ASSAULT THIRD, SUBSTANTIAL PAIN ELEMENT OF ASSAULT THIRD EXPLAINED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, ASSAULT, SUBSTANTIAL PAIN ELEMENT OF ASSAULT THIRD EXPLAINED (FIRST DEPT))

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