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(HARMLESS) ERROR TO ALLOW CROSS-EXAMINATION OF DEFENSE WITNESS ABOUT HER GANG AFFILIATION, GANG MEMBERSHIP HAD NO RELATIONSHIP TO THE CHARGES (SECOND DEPT).

The Second Department, in affirming defendant’s conviction, noted that it was error to allow the prosecutor to cross-examine a defense witness about the witness’s gang affiliation. Gang membership had no relationship to the charges:

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The Supreme Court erred in allowing the prosecutor to cross-examine a defense witness regarding her possible gang affiliations since there was no connection between gang membership and the alleged crime … . It was also improper to allow the prosecutor to introduce extrinsic evidence to impeach that witness’s credibility when she denied being affiliated with a gang … . However, because there was overwhelming evidence of the defendant’s guilt and no significant probability that these errors contributed to the defendant’s convictions, the errors were harmless … . People v Chinloy, 2017 NY Slip Op 06450, Second Dept 9-13-17

CRIMINAL LAW ((HARMLESS) ERROR TO ALLOW CROSS-EXAMINATION OF DEFENSE WITNESS ABOUT HER GANG AFFILIATION, GANG MEMBERSHIP HAD NO RELATIONSHIP TO THE CHARGES (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW CROSS-EXAMINATION OF DEFENSE WITNESS ABOUT HER GANG AFFILIATION, GANG MEMBERSHIP HAD NO RELATIONSHIP TO THE CHARGES (SECOND DEPT))/GANGS (CRIMINAL LAW, EVIDENCE, (HARMLESS) ERROR TO ALLOW CROSS-EXAMINATION OF DEFENSE WITNESS ABOUT HER GANG AFFILIATION, GANG MEMBERSHIP HAD NO RELATIONSHIP TO THE CHARGES (SECOND DEPT))

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DEFENDANT ENTITLED TO IMMUNITY FROM PROSECUTION BECAUSE HER GRAND JURY TESTIMONY WAS RELATED TO THE GRAND LARCENY CHARGE (STEALING REAL PROPERTY), HOWEVER SHE WAS NOT ENTITLED TO IMMUNITY RE THE FORGED DEED CHARGES (SECOND DEPT).

The Second Department, modifying Supreme Court, determined charges relating to a forged deed were not protected the by the transactional immunity afforded grand jury witnesses. Defendant had testified before a grand jury about a burglary at real property she claimed to own. Subsequently defendant was charged with grand larceny (stealing the real property), possessing a forged deed, filing the forged deed and perjury (in the grand jury proceeding). The Second Department determined the grand larceny count was properly dismissed because it directly related to defendant’s testimony before the grand jury (claiming  that she owned the real property). However, the charges forged deed charges were not related to her grand jury testimony and therefore those charges were reinstated:

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The defendant’s grand jury testimony that she was the owner of the real property would be relevant to establishing the defendant’s alleged intent to deprive the rightful owners of the real property … . Thus, the defendant testified to the “transaction, matter or thing” for which she stands indicted … , and her testimony may “tend to a conviction when combined with proof of other circumstances which others may supply” … . Accordingly, the Supreme Court properly found that the defendant’s testimony conferred immunity upon her from prosecution of grand larceny in the second degree. * * *

… [A]lthough the defendant testified that she owned the real property, she did not testify how she purportedly came into ownership of the real property. Her claim of ownership is not relevant to establishing her knowledge that the deed to the real property was forged, her intent to use that deed to defraud another person, her presentment of the deed to the City Register, or her belief that the deed would be accepted for filing … , and thus, does not “tend to a conviction when combined with proof of other circumstances which others may supply” … . Under these circumstances, the defendant was not entitled to immunity from prosecution for criminal possession of a forged instrument in the second degree and offering a false instrument for filing in the first degree, and counts two and three of the indictment must be reinstated. People v O’Neal, 2017 NY Slip Op 06461, Second Dept 9-13-17

 

CRIMINAL LAW (IMMUNITY, GRAND JURY TESTIMONY, DEFENDANT ENTITLED TO IMMUNITY FROM PROSECUTION BECAUSE HER GRAND JURY TESTIMONY WAS RELATED TO THE GRAND LARCENY CHARGE (STEALING REAL PROPERTY), HOWEVER SHE WAS NOT ENTITLED TO IMMUNITY RE THE FORGED DEED CHARGES (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, IMMUNITY, GRAND JURY TESTIMONY,  DEFENDANT ENTITLED TO IMMUNITY FROM PROSECUTION BECAUSE HER GRAND JURY TESTIMONY WAS RELATED TO THE GRAND LARCENY CHARGE (STEALING REAL PROPERTY), HOWEVER SHE WAS NOT ENTITLED TO IMMUNITY RE THE FORGED DEED CHARGES (SECOND DEPT))/GRAND JURY (IMMUNITY, DEFENDANT ENTITLED TO IMMUNITY FROM PROSECUTION BECAUSE HER GRAND JURY TESTIMONY WAS RELATED TO THE GRAND LARCENY CHARGE (STEALING REAL PROPERTY), HOWEVER SHE WAS NOT ENTITLED TO IMMUNITY RE THE FORGED DEED CHARGES (SECOND DEPT))/IMMUNITY (CRIMINAL LAW, GRAND JURY TESTIMONY, DEFENDANT ENTITLED TO IMMUNITY FROM PROSECUTION BECAUSE HER GRAND JURY TESTIMONY WAS RELATED TO THE GRAND LARCENY CHARGE (STEALING REAL PROPERTY), HOWEVER SHE WAS NOT ENTITLED TO IMMUNITY RE THE FORGED DEED CHARGES (SECOND DEPT))

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(HARMLESS) ERROR TO SHOW THE INJURED CHILD TO THE JURY IN THIS SHAKEN BABY CASE, THE EXTENT OF THE LONG-TERM INJURIES WAS NOT AN ELEMENT OF THE CRIME (SECOND DEPT).

The Second Department, in affirming defendant’s conviction, noted that it was (harmless) error to show the jury the injured child in this shaken baby case because the extent of the long-term effects of the injury was not an element of the crime:

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We agree with the defendant that the Supreme Court improvidently exercised its discretion in allowing the People to display the injured child to the jury during the mother’s testimony, since the extent of the child’s long-term injuries was not an element of the crime … , and such display only served to prejudice the defense by arousing the emotions of the jury … . Nevertheless, the error was harmless … . Given the extensive and uncontroverted medical evidence supporting the diagnosis of shaken baby syndrome and that the child’s injuries could have only occurred when the child was with the defendant, the evidence of the defendant’s guilt was overwhelming. Moreover, there is no significant probability that the jury would have acquitted the defendant had it not been for the error … . People v Narine, 2017 NY Slip Op 06460, Second Dept 9-13-17

CRIMINAL LAW ((HARMLESS) ERROR TO SHOW THE INJURED CHILD TO THE JURY IN THIS SHAKEN BABY CASE, THE EXTENT OF THE LONG-TERM INJURIES WAS NOT AN ELEMENT OF THE CRIME (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (HARMLESS) ERROR TO SHOW THE INJURED CHILD TO THE JURY IN THIS SHAKEN BABY CASE, THE EXTENT OF THE LONG-TERM INJURIES WAS NOT AN ELEMENT OF THE CRIME (SECOND DEPT))/SHAKEN BABY SYNDROME (CRIMINAL LAW, (HARMLESS) ERROR TO SHOW THE INJURED CHILD TO THE JURY IN THIS SHAKEN BABY CASE, THE EXTENT OF THE LONG-TERM INJURIES WAS NOT AN ELEMENT OF THE CRIME (SECOND DEPT))

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(HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT).

The Second Department, in affirming the conviction of defendants as part of a large scale heroin distribution operation, determined it was error to allow the lead detective to explain to the jury the roles played by the persons recorded by the wiretaps. It was also error to admit the wiretap orders into evidence. Given the overwhelming evidence, however, the errors were deemed harmless:

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… [W]hile “it was error to permit the prosecutor to elicit testimony [from the investigating detective] as to the roles played by the individuals overheard in the phone calls[ ] and the relationships among them, . . . and the meanings of certain case-specific’ terms that he had discovered in the course of the investigation” … , the error was harmless, “as the proof of the defendant’s commission of the charged crimes was overwhelming, and there is no significant probability that, but for the error, the verdict . . . would have been less adverse'” … .

The County Court also improvidently exercised its discretion in admitting into evidence the wiretap court orders. Although the court orders were relevant, as authorizing the wiretapping that led to a large part of the People’s evidence, and their admission had a tendency to prove the existence of a material fact, i.e., that the wiretapping was authorized … , that same fact could have been established without the prejudice they caused. Nevertheless, here, too, the error was harmless. People v Guzman, 2017 NY Slip Op 06454, Second Dept 9-13-17

 

CRIMINAL LAW ((HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT))/WIRETAPS (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT))/EAVESDROPPING (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT))

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PEOPLE DEMONSTRATED INVENTORY SEARCH WAS VALID, DESPITE EXPECTATION CONTRABAND WOULD BE FOUND, CREDIBILITY OF POLICE WITNESSES BEYOND REVIEW BY COURT OF APPEALS (CT APP).

The Court of Appeals, in a brief memorandum decision, determined the People had demonstrated the search of defendant’s car was a valid inventory search, despite the expectation contraband would be found. The defendant’s argument the search was a ruse depended upon the credibility of the police witnesses, a mixed question of law and fact that cannot be reached by the Court of Appeals:

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“[T]he People met their burden of establishing that the [inventory] search was in accordance with procedure and resulted in a meaningful inventory list” and that the primary objectives of the search were to preserve the property located inside the vehicle and to protect police from a claim of lost property … . The fact that the officers knew that contraband might be recovered does “not invalidate the entire search” … . “The inventory here, while not a model, was sufficient to meet the constitutional minimum” … .

The determinations of the lower courts regarding the credibility of the officers and whether the inventory search was a ruse to look for contraband present mixed questions of law and fact … . A mixed question is presented when “the facts are disputed, where credibility is at issue or where reasonable minds may differ as to the inference[s] to be drawn” … . Inasmuch as there is record support for the lower courts’ conclusion that the primary purpose of the search was to inventory the property located in the vehicle, that issue is beyond further review by this Court … . People v Lee, 2017 NY Slip Op 06415, CtApp 9-12-17

 

CRIMINAL LAW (PEOPLE DEMONSTRATED INVENTORY SEARCH WAS VALID, DESPITE EXPECTATION CONTRABAND WOULD BE FOUND, CREDIBILITY OF POLICE WITNESSES BEYOND REVIEW BY COURT OF APPEALS (CT APP))/SEARCH AND SEIZURE (CRIMINAL LAW, SEARCH AND SEIZURE, PEOPLE DEMONSTRATED INVENTORY SEARCH WAS VALID, DESPITE EXPECTATION CONTRABAND WOULD BE FOUND, CREDIBILITY OF POLICE WITNESSES BEYOND REVIEW BY COURT OF APPEALS (CT APP))/INVENTORY SEARCH (CRIMINAL LAW, PEOPLE DEMONSTRATED INVENTORY SEARCH WAS VALID, DESPITE EXPECTATION CONTRABAND WOULD BE FOUND, CREDIBILITY OF POLICE WITNESSES BEYOND REVIEW BY COURT OF APPEALS (CT APP))/APPEALS (COURT OF APPEALS, CRIMINAL LAW, INVENTORY SEARCH, PEOPLE DEMONSTRATED INVENTORY SEARCH WAS VALID, DESPITE EXPECTATION CONTRABAND WOULD BE FOUND, CREDIBILITY OF POLICE WITNESSES BEYOND REVIEW BY COURT OF APPEALS (CT APP))

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STATUTES WHICH CRIMINALIZE ASSISTED SUICIDE ARE CONSTITUTIONAL (CT APP).

The Court of Appeals, in a per curiam opinion with three extensive concurring opinions, determined the statutes criminalizing assisted suicide are constitutional in that they do not violate the due process or equal protection clauses.

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Plaintiffs ask us to declare a constitutional right to “aid-in-dying,” which they define (and we refer to herein) as the right of a mentally competent and terminally ill person to obtain a prescription for a lethal dosage of drugs from a physician, to be taken at some point to cause death. Although New York has long recognized a competent adult’s right to forgo life-saving medical care, we reject plaintiffs’ argument that an individual has a fundamental constitutional right to aid-in-dying as they define it. We also reject plaintiffs’ assertion that the State’s prohibition on assisted suicide is not rationally related to legitimate state interests .. . . * * *

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Our State’s equal protection guarantees are coextensive with the rights protected under the federal Equal Protection Clause … . In Vacco v Quill, the United States Supreme Court held that New York State’s laws banning assisted suicide do not unconstitutionally distinguish between individuals (521 US 793, 797 [1997]). As the Court explained, “[e]veryone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide. Generally, laws that apply evenhandedly to all unquestionably comply with equal protection” … . The Supreme Court has not retreated from that conclusion, and we see no reason to hold otherwise. * * *

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… [T]he State pursues a legitimate purpose in guarding against the risks of mistake and abuse. The State may rationally seek to prevent the distribution of prescriptions for lethal dosages of drugs that could, upon fulfillment, be deliberately or accidentally misused. The State also has a significant interest in preserving life and preventing suicide, a serious public health problem … . As summarized by the Supreme Court, the State’s interests in prohibiting assisted suicide include: “prohibiting intentional killing and preserving life; preventing suicide; maintaining physicians’ role as their patients’ healers; protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide towards euthanasia” … . These legitimate and important State interests further “satisfy the constitutional requirement that a legislative classification bear a rational relation to some legitimate end” … . Myers v Schneiderman, 2017 NY Slip Op 06412, CtApp 9-7-17

 

CONSTITUTIONAL LAW (ASSISTED SUICIDE, STATUTES WHICH CRIMINALIZE ASSISTED SUICIDE ARE CONSTITUTIONAL (CT APP)/SUICIDE (CONSTITUTIONAL LAW, ASSISTED SUICIDE, STATUTES WHICH CRIMINALIZE ASSISTED SUICIDE ARE CONSTITUTIONAL (CT APP)/ASSISTED SUICIDE, STATUTES WHICH CRIMINALIZE ASSISTED SUICIDE ARE CONSTITUTIONAL (CT APP)/CRIMINAL LAW (ASSISTED SUICIDE, STATUTES WHICH CRIMINALIZE ASSISTED SUICIDE ARE CONSTITUTIONAL (CT APP)

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FAILURE TO CLEARLY INFORM DEFENDANT THAT PLEADING GUILTY TO AN AGGRAVATED FELONY TRIGGERS DEPORTATION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, MERELY TELLING DEFENDANT THERE WAS A RISK OF DEPORTATION WAS NOT ENOUGH (FIRST DEPT).

The First Department, over a dissent, determined defendant should be given the opportunity to move to vacate his guilty plea because defense counsel did not make it clear that pleading guilty to an aggravated felony triggered deportation. Informing defendant of a risk of deportation was not sufficient and constituted ineffective assistance of counsel:

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Since an aggravated felony results in mandatory deportation … , counsel is under a duty to provide clear advice as to that consequence. It is thus ineffective assistance to advise a noncitizen of a mere risk or possibility that he “could be deported” … . People v Doumbia, 2017 NY Slip Op 06402, First Dept 9-5-17

CRIMINAL LAW (ATTORNEYS, FAILURE TO CLEARLY INFORM DEFENDANT THAT PLEADING GUILTY TO AN AGGRAVATED FELONY TRIGGERS DEPORTATION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, MERELY TELLING DEFENDANT THERE WAS A RISK OF DEPORTATION WAS NOT ENOUGH (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW,  FAILURE TO CLEARLY INFORM DEFENDANT THAT PLEADING GUILTY TO AN AGGRAVATED FELONY TRIGGERS DEPORTATION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, MERELY TELLING DEFENDANT THERE WAS A RISK OF DEPORTATION WAS NOT ENOUGH (FIRST DEPT))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, FAILURE TO CLEARLY INFORM DEFENDANT THAT PLEADING GUILTY TO AN AGGRAVATED FELONY TRIGGERS DEPORTATION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, MERELY TELLING DEFENDANT THERE WAS A RISK OF DEPORTATION WAS NOT ENOUGH (FIRST DEPT))

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JURY SHOULD HAVE BEEN INSTRUCTED ON THE INNOCENT POSSESSION OF A WEAPON DEFENSE, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, reversing defendant’s conviction for possession of a weapon, determined the jury should have been instructed on the innocent possession of a weapon defense. There was evidence that the defendant had taken the pistol away from decedent, who had struck him with it. Defendant walked away with the pistol. Three minutes later defendant was grabbed from behind by a man who was with the decedent. There was evidence the defendant shot the man and the decedent. The jury was instructed on the justification defense and acquitted the defendant of manslaughter:

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When this evidence is viewed in the light most favorable to defendant, nothing he did or failed to do in the very brief interval between excusably obtaining the pistol and being confronted by the decedent and his companions constituted “us[ing the pistol] in a dangerous manner” … . Given the justification defense, which, as the court correctly determined, warranted a justification charge, the fact that defendant shot the decedent did not constitute a “dangerous use” barring the court from giving a temporary lawful possession charge. Courts have found that the firing of shots did not negate a defendant’s entitlement to a temporary lawful possession instruction where the shooting was justified and the possession was otherwise lawful. People v Bonilla, 2017 NY Slip Op 06405, First Dept 9-5-17

CRIMINAL LAW (JURY SHOULD HAVE BEEN INSTRUCTED ON THE INNOCENT POSSESSION OF A WEAPON DEFENSE, NEW TRIAL ORDERED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, JURY SHOULD HAVE BEEN INSTRUCTED ON THE INNOCENT POSSESSION OF A WEAPON DEFENSE, NEW TRIAL ORDERED (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, JURY SHOULD HAVE BEEN INSTRUCTED ON THE INNOCENT POSSESSION OF A WEAPON DEFENSE, NEW TRIAL ORDERED (FIRST DEPT))/WEAPON, POSSESSION OF (JURY SHOULD HAVE BEEN INSTRUCTED ON THE INNOCENT POSSESSION OF A WEAPON DEFENSE, NEW TRIAL ORDERED (FIRST DEPT))/INNOCENT POSSESSION OF A WEAPON (JURY SHOULD HAVE BEEN INSTRUCTED ON THE INNOCENT POSSESSION OF A WEAPON DEFENSE, NEW TRIAL ORDERED (FIRST DEPT))

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TRIAL COURT SHOULD NOT HAVE RULED DEFENDANT COULD BE CROSS-EXAMINED ABOUT A PRIOR SIMILAR STABBING OF THE SAME VICTIM IF THE DEFENDANT CHOSE TO TESTIFY, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department reversed the defendant’s conviction finding that evidence of a prior similar stabbing of the same victim was too prejudicial to be admissible. The evidence of defendant’s connection to the prior stabbing was weak. The victim refused to cooperate with the investigations into both stabbings. Therefore the trial court should not have ruled the defendant could be cross-examined about the prior stabbing if he chose to testify (he did not testify):

Although questioning concerning other crimes and past conduct is not automatically precluded simply because the crime or conduct inquired about is similar to the crime charged … , “cross-examination with respect to crimes or conduct similar to that of which the defendant is presently charged may be highly prejudicial, in view of the risk, despite the most clear and forceful limiting instructions to the contrary, that the evidence will be taken as some proof of the commission of the crime charged rather than be reserved solely to the issue of credibility” … . Thus, “a balance must be struck between the probative worth of evidence of prior specific criminal, vicious or immoral acts on the issue of the defendant’s credibility on the one hand, and on the other the risk of unfair prejudice to the defendant, measured both by the impact of such evidence if it is admitted after his testimony and by the effect its probable introduction may have in discouraging him from taking the stand on his own behalf” … . Under the circumstances presented here, most notably the unsubstantiated evidence connecting the defendant to the uncharged crime involving the identical victim, which occurred three months earlier, the probative value was far outweighed by the danger of undue prejudice. There was a strong likelihood that the uncharged crime would be viewed as evidence of propensity, rather than probative on the issue of credibility … . People v Ridenhour, 2017 NY Slip Op 06383, Second Dept 8-30-17

CRIMINAL LAW (SANDOVAL, TRIAL COURT SHOULD NOT HAVE RULED DEFENDANT COULD BE CROSS-EXAMINED ABOUT A PRIOR SIMILAR STABBING OF THE SAME VICTIM IF THE DEFENDANT CHOSE TO TESTIFY, NEW TRIAL ORDERED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, SANDOVAL, TRIAL COURT SHOULD NOT HAVE RULED DEFENDANT COULD BE CROSS-EXAMINED ABOUT A PRIOR SIMILAR STABBING OF THE SAME VICTIM IF THE DEFENDANT CHOSE TO TESTIFY, NEW TRIAL ORDERED (SECOND DEPT))/SANDOVAL (CRIMINAL LAW,  TRIAL COURT SHOULD NOT HAVE RULED DEFENDANT COULD BE CROSS-EXAMINED ABOUT A PRIOR SIMILAR STABBING OF THE SAME VICTIM IF THE DEFENDANT CHOSE TO TESTIFY, NEW TRIAL ORDERED (SECOND DEPT)/PRIOR CRIMES AND BAD ACTS (CRIMINAL LAW, SANDOVAL, TRIAL COURT SHOULD NOT HAVE RULED DEFENDANT COULD BE CROSS-EXAMINED ABOUT A PRIOR SIMILAR STABBING OF THE SAME VICTIM IF THE DEFENDANT CHOSE TO TESTIFY, NEW TRIAL ORDERED (SECOND DEPT))

PEOPLE WERE UNABLE TO DEMONSTRATE WITNESS’S REFUSAL TO TESTIFY WAS THE RESULT OF DEFENDANT’S THREATS, NEW TRIAL ORDERED, DEFENSE COUNSEL’S REQUEST TO BE RELIEVED REQUIRED FURTHER INQUIRY BY THE COURT (SECOND DEPT).

The Second Department reversed defendant’s conviction and ordered a new trial because the People did not demonstrate, at a Sirois hearing, that a witness’s refusal to testify was the result of defendant’s threats. The trial court had ruled the witness’s grand jury testimony could be read to the jury. The Second Department also held the court should have inquired into the defense attorney’s request to be relieved because the defendant had filed a grievance against him:

At the Sirois hearing, the People were required to “demonstrate by clear and convincing evidence that the defendant, by violence, threats or chicanery, caused a witness’s unavailability” … . Here, although the People presented evidence that the witness was afraid to testify, they failed to meet their heavy burden of showing that her fear was caused by a threat made by the defendant … .

Under the circumstances of this case, this error cannot be considered harmless … . Thus, the judgment must be reversed, and the matter remitted to the Supreme Court, Kings County, for a new trial … .

The Supreme Court also should not have denied defense counsel’s request to be relieved without first having made at least some minimal inquiry in light of defense counsel’s statement that the defendant had filed a grievance against him … . People v Middleton, 2017 NY Slip Op 06378, Second Dept 8-30-17

 

CRIMINAL LAW (PEOPLE WERE UNABLE TO DEMONSTRATE WITNESS’S REFUSAL TO TESTIFY WAS THE RESULT OF DEFENDANT’S THREATS, NEW TRIAL ORDERED, DEFENSE COUNSEL’S REQUEST TO BE RELIEVED REQUIRED FURTHER INQUIRY BY THE COURT (SECOND DEPT))/SIROIS HEARING (CRIMINAL LAW, PEOPLE WERE UNABLE TO DEMONSTRATE WITNESS’S REFUSAL TO TESTIFY WAS THE RESULT OF DEFENDANT’S THREATS, NEW TRIAL ORDERED, DEFENSE COUNSEL’S REQUEST TO BE RELIEVED REQUIRED FURTHER INQUIRY BY THE COURT (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL’S REQUEST TO BE RELIEVED REQUIRED FURTHER INQUIRY BY THE COURT (SECOND DEPT))

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