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TRIAL COURT DID NOT ABUSE ITS DISCRETION IN NOT LETTING THE POSSESSION-OF-A-BB-GUN COUNT GO TO THE JURY BECAUSE THE COUNT COULD CONFUSE THE JURY AND LEAD TO A COMPROMISE VERDICT, DEFENDANT WAS CONVICTED OF POSSESSION OF A 9 MM HANDGUN. 

The First Department, in a full-fledged opinion by Justice Tom, over a two-justice dissenting opinion by Justice Acosta, determined the trial court properly dismissed the count of the indictment which charged possession of a BB gun. Defendant was charged with possession of the BB gun as well as possession of a 9 mm handgun. It was alleged defendant threw both under a car as the police approached. Defendant produced a declaration (against penal interest) by a non-testifying witness (Ramsanany) who claimed (in the declaration) the handgun was his. In rebuttal the People presented a detective (DeLoren) who testified Ramsanany, when confronted, admitted his declaration about owning the handgun was a lie. The dissent argued the BB gun count should have gone to the jury, as it was an integral part of the defense and would not have caused jury confusion. The trial court ruled that the BB gun count could confuse the jury and lead to a compromise verdict:

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FROM THE DISSENT:

I disagree with the majority’s position that submission of the air pistol count “could only confuse” the jury. Indeed, in allowing testimony about Ramsanany’s declaration that he, and not defendant, possessed the 9 millimeter Taurus pistol, the court necessarily found that it did not confuse the issues or mislead the jury  … .

In any event, under the circumstances, submission of the air pistol charge would not have distracted the jury or merely allowed it to reach a verdict based on mercy or compromise; rather, submission of the charge would have helped the jury arrive at a fair verdict if it had credited the defense, a defense supported by defendant’s and Gil’s testimony and Ramsanany’s declaration, as well as the lack of DNA or fingerprint evidence indicating which pistols were in defendant’s possession. Instead, because the court dismissed the air pistol count, the jury had no basis on which to convict defendant of possession of only the air pistol, and not the 9 millimeter Taurus pistol, even if it credited the defense, leaving the jury to convict defendant of a more serious offense or acquit him altogether. This was particularly troubling, given that Ramsanany did not testify at trial. Any claims by the prosecution that Ramsanany was coerced by defendant into assuming criminal responsibility for the air pistol could only have been explored through Detective DeLoren. It seems to me patently unfair to provide Ramsanany’s declaration and DeLoren’s rebuttal to the jury and then essentially tell the jury to forget about that testimony and focus only on the 9 millimeter Taurus pistol. People v Boyd, 2017 NY Slip Op 04809, 1st Dept 6-13-17

 

CRIMINAL LAW (TRIAL COURT DID NOT ABUSE ITS DISCRETION IN NOT LETTING THE POSSESSION-OF-A BB-GUN COUNT GO TO THE JURY BECAUSE THE COUNT COULD CONFUSE THE JURY AND LEAD TO A COMPROMISE VERDICT, DEFENDANT WAS CONVICTED OF POSSESSION OF A 9 MM HANDGUN)/JURY CONFUSION (CRIMINAL LAW, TRIAL COURT DID NOT ABUSE ITS DISCRETION IN NOT LETTING THE POSSESSION-OF-A BB-GUN COUNT GO TO THE JURY BECAUSE THE COUNT COULD CONFUSE THE JURY AND LEAD TO A COMPROMISE VERDICT, DEFENDANT WAS CONVICTED OF POSSESSION OF A 9 MM HANDGUN)/COMPROMISE VERDICT (CRIMINAL LAW, TRIAL COURT DID NOT ABUSE ITS DISCRETION IN NOT LETTING THE POSSESSION-OF-A BB-GUN COUNT GO TO THE JURY BECAUSE THE COUNT COULD CONFUSE THE JURY AND LEAD TO A COMPROMISE VERDICT, DEFENDANT WAS CONVICTED OF POSSESSION OF A 9 MM HANDGUN)

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED, EXTENSIVE DISSENT ARGUES NEWLY DISCOVERED THIRD-PARTY ADMISSIONS REQUIRE A NEW TRIAL.

The Fourth Department, over an extensive, comprehensive dissent, determined defendant’s motion to vacate his conviction was properly denied. The defendant was convicted of kidnapping a woman (Heidi) who has never been seen since. The dissent argued newly discovered evidence, third-party admissions, required a new trial. The decision is fact-based and cannot be fairly summarized here:

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FROM THE DISSENT (JUSTICE CENTRA):

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I respectfully dissent. I agree with the majority that County Court properly rejected that part of defendant’s motion alleging a Brady violation inasmuch as defendant did not meet his burden of establishing that the alleged Brady material was suppressed by the People. I further agree with the majority that the court properly precluded defendant from introducing certain evidence that did not involve third-party admissions. I also agree with the majority that defendant failed to establish his entitlement to relief through an actual innocence claim … . I agree with defendant, however, that he established his entitlement to a new trial based on newly discovered evidence. I would therefore reverse the order, grant the motion, vacate the judgment of conviction, and grant a new trial. * * *

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“When considering the reliability of a declaration, courts should . . . consider the circumstances of the statement, such as, among other things, the declarant’s motive in making the statement—i.e., whether the declarant exculpated a loved one or inculpated someone else, the declarant’s personality and mental state, and the internal consistency and coherence of the declaration’ ” … . Here, Steen, Breckenridge, and Wescott were not related to defendant and were not his friends, and thus had no reason to exonerate him or implicate themselves or their friends in Heidi’s disappearance. Wescott’s statement to Priest revealed that she did not like discussing what happened to Heidi, and she showed fear and reluctance to speak to the police about it. The third-party admissions were made to people they knew, not strangers, and were made to provide explanations, rather than mere theories, to the listener as to what actually happened to Heidi. The majority notes that many of the third-party admissions were inconsistent with each other. At first blush, that seems to be the case inasmuch as the statements were that Heidi’s body was cut up and buried in a cabin, or burned in a wood stove in the cabin, or placed in a van that was sent to Canada to be salvaged. It is certainly possible, however, that all three of those events could have occurred.

I therefore conclude that the testimony of Priest, Braley, and Combes, and the statement of Wescott, would be admissible at defendant’s trial, and that evidence would probably change the result of the trial … . People v Thibodeau, 2017 NY Slip Op 04577, 4th Dept 6-9-17

 

CRIMINAL LAW (VACATE CONVICTION, MOTION TO, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED, EXTENSIVE DISSENT ARGUES NEWLY DISCOVERED EVIDENCE REQUIRES A NEW TRIAL)/EVIDENCE (CRIMINAL LAW, NEWLY DISCOVERED EVIDENCE, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED, EXTENSIVE DISSENT ARGUES NEWLY DISCOVERED EVIDENCE REQUIRES A NEW TRIAL)/VACATE CONVICTION, MOTION TO (DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED, EXTENSIVE DISSENT ARGUES NEWLY DISCOVERED EVIDENCE REQUIRES A NEW TRIAL)/ADMISSIONS (CRIMINAL LAW, THIRD PARTY ADMISSIONS, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED, EXTENSIVE DISSENT ARGUES NEWLY DISCOVERED THIRD-PARTY ADMISSIONS, REQUIRE A NEW TRIAL)

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DEFENDANT’S STATEMENT THAT HE HAD A HANDGUN SHOULD HAVE BEEN SUPPRESSED, HOWEVER THE HANDGUN WOULD HAVE BEEN DISCOVERED ABSENT THE STATEMENT AND WAS ADMISSIBLE, THE SUPPRESSION ERROR THEREFORE COULD NOT HAVE AFFECTED DEFENDANT’S DECISION TO PLEAD GUILTY.

The Fourth Department, over a two-justice dissent, determined defendant’s statement should have been suppressed because he was in custody, not warned of his Miranda rights, and was asked questions designed to elicit an incriminating response. However, although the statement he had a firearm should have been suppressed, the firearm would have been discovered even if the statement had not been made (inevitable discovery doctrine). Therefore the firearm need not be suppressed. Even though the conviction was by guilty plea, the court determined the suppression error could not have affected the defendant’s decision to plead guilty and the conviction was affirmed:

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Here, defendant’s statement admitting his possession of the handgun was the tainted primary evidence arising from the unlawful pre-Miranda custodial interrogation and must be suppressed … ; however, the inevitable discovery doctrine applies to the handgun as secondary evidence arising therefrom … . We conclude that there was a ” very high degree of probability’ ” that the officers would have discovered the firearm, which was found inside the right leg of defendant’s pants during a lawful and routine search of defendant’s person prior to his attempted flight … .

Although defendant’s statement admitting to the possession of the firearm should have been suppressed, we conclude that the particular circumstances of this case permit the rare application of the harmless error rule to defendant’s guilty plea … . “[W]hen a conviction is based on a plea of guilty an appellate court will rarely, if ever, be able to determine whether an erroneous denial of a motion to suppress contributed to the defendant’s decision, unless at the time of the plea he states or reveals his reason for pleading guilty” … . “The … doctrine is not absolute, however, and [the Court of Appeals has] recognized that a guilty plea entered after an improper court ruling may be upheld if there is no reasonable possibility that the error contributed to the plea’ ” … . In our view, because the firearm was not suppressed and would have been admissible at trial, there is no reasonable possibility that the court’s error in failing to suppress defendant’s statement admitting possession of the firearm contributed to his decision to plead guilty … . People v Clanton, 2017 NY Slip Op 04579, 4th Dept 6-9-17

CRIMINAL LAW (DEFENDANT’S STATEMENT THAT HE HAD A HANDGUN SHOULD HAVE BEEN SUPPRESSED, HOWEVER THE HANDGUN WOULD HAVE BEEN DISCOVERED ABSENT THE STATEMENT AND WAS ADMISSIBLE, THE SUPPRESSION ERROR THEREFORE COULD NOT HAVE AFFECTED DEFENDANT’S DECISION TO PLEAD GUILTY)/EVIDENCE (SUPPRESSION, INEVITABLE DISCOVERY, (DEFENDANT’S STATEMENT THAT HE HAD A HANDGUN SHOULD HAVE BEEN SUPPRESSED, HOWEVER THE HANDGUN WOULD HAVE BEEN DISCOVERED ABSENT THE STATEMENT AND WAS ADMISSIBLE, THE SUPPRESSION ERROR THEREFORE COULD NOT HAVE AFFECTED DEFENDANT’S DECISION TO PLEAD GUILTY)/SUPPRESS, MOTION TO (DEFENDANT’S STATEMENT THAT HE HAD A HANDGUN SHOULD HAVE BEEN SUPPRESSED, HOWEVER THE HANDGUN WOULD HAVE BEEN DISCOVERED ABSENT THE STATEMENT AND WAS ADMISSIBLE, THE SUPPRESSION ERROR THEREFORE COULD NOT HAVE AFFECTED DEFENDANT’S DECISION TO PLEAD GUILTY)/SEARCH AND SEIZURE (INEVITABLE DISCOVERY, DEFENDANT’S STATEMENT THAT HE HAD A HANDGUN SHOULD HAVE BEEN SUPPRESSED, HOWEVER THE HANDGUN WOULD HAVE BEEN DISCOVERED ABSENT THE STATEMENT AND WAS ADMISSIBLE, THE SUPPRESSION ERROR THEREFORE COULD NOT HAVE AFFECTED DEFENDANT’S DECISION TO PLEAD GUILTY)/GUILTY PLEA (SUPPRESSION ERROR COULD NOT HAVE AFFECTED DECISION TO PLEAD GUILTY, CONVICTION AFFIRMED)/HARMLESS ERROR (GUILTY PLEA, SUPPRESSION ERROR COULD NOT HAVE AFFECTED DECISION TO PLEAD GUILTY, CONVICTION AFFIRMED)

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PEOPLE DID NOT DEMONSTRATE THE WARRANT WHICH WAS THE BASIS FOR DEFENDANT’S ARREST WAS VALID, THE PAT-DOWN SEARCH WAS NOT JUSTIFIED AS A SAFETY MEASURE, SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED.

The Fourth Department, reversing County Court, determined the search of defendant’s person after traffic stop was not supported by proof of a valid warrant for defendant’s arrest. Defendant was a passenger in a car stopped by a sheriff’s deputy. The driver was arrested for driving without a license. The deputy then checked the defendant’s “data” and found defendant did not have a license and  there was a warrant for defendant. The defendant was then taken into custody on the warrant and cocaine was found in a pat-down search. The People did not demonstrate that the warrant was valid at the time of the arrest. County Court ruled the search was a valid “safety pat-down” before placing defendant in the police car:

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We agree with defendant that the court erred in upholding the search on the ground that it was a lawful “safety pat-down.” There was no evidence in the record of the hearing to support a conclusion that “defendant had a weapon or was a threat to [the deputy’s] safety” … . Moreover, “[a]lthough a police officer may reasonably pat down a person before he [or she] places [that person] in the back of a police vehicle, the legitimacy of that procedure depends on the legitimacy of placing [the person] in the police car in the first place” … . Here, the People failed to establish the legitimacy of placing defendant in the patrol vehicle. First, the People failed to establish “the existence of a validly-issued and outstanding warrant” … . Once defendant challenged the validity of the warrant by questioning the deputy concerning the status of the warrant and whether it was still valid, the People were “required to make a further evidentiary showing by producing the . . . warrant” (id.). The People did not do so. Thus, without establishing the existence of a valid and outstanding warrant, the People failed to establish the legitimacy of placing defendant in the patrol vehicle … . Although defendant, who did not have a valid driver’s license, could not have driven the stopped vehicle from the scene after the arrest of the driver, the deputy testified that, in the absence of a warrant, defendant could have called for someone to pick him up and therefore could have lawfully refused to be transported away from the scene in the patrol vehicle. People v Richards, 2017 NY Slip Op 04668, 4th Dept 6-9-17

CRIMINAL LAW (PEOPLE DID NOT DEMONSTRATE THE WARRANT WHICH WAS THE BASIS FOR DEFENDANT’S ARREST WAS VALID, THE PAT-DOWN SEARCH WAS NOT JUSTIFIED AS A SAFETY MEASURE, SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, PAT-DOWN SEARCH, PEOPLE DID NOT DEMONSTRATE THE WARRANT WHICH WAS THE BASIS FOR DEFENDANT’S ARREST WAS VALID, THE PAT-DOWN SEARCH WAS NOT JUSTIFIED AS A SAFETY MEASURE, SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED)

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PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY NEED TO EVALUATE THE EFFECT OF THE ERRORS ON THE CONVICTION.

The Fourth Department reversed defendant’s conviction because of the prosecutor’s misconduct:

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During jury selection, the prosecutor improperly inquired if defendant “look[ed] like an arsonist” because she was dressed in red-colored clothing. During cross-examination, the prosecutor improperly questioned defendant on her inability to make bail, thus indicating that defendant was incarcerated … , and improperly questioned defendant about the conviction of her codefendant husband of the same crime … . The prosecutor also improperly questioned defendant concerning the criminal history of her husband … During summation, the prosecutor commented on the failure of defendant’s husband to testify regarding her financial condition, again implying that her husband had been convicted of the same crime and was incarcerated … . Although County Court sustained many of defense counsel’s objections and gave curative instructions, we cannot conclude on this record that any resulting prejudice was alleviated… .Moreover, even when a trial court repeatedly sustains a defendant’s objections and instructs the jury to disregard certain remarks by the prosecutor, “[a]fter a certain point, . . . the cumulative effect of a prosecutor’s improper comments . . . may overwhelm a defendant’s right to a fair trial”… , and that is the case here. We therefore “must reverse the conviction and grant a new trial, . . . without regard to any evaluation as to whether the errors contributed to . . . defendant’s conviction. The right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right”  … . People v Hayward-Crawford, 2017 NY Slip Op 04581, 4th Dept 6-9-17

CRIMINAL LAW (ATTORNEYS, PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY EVALUATION OF THE EFFECT OF THE ERRORS ON THE CONVICTION)/ATTORNEYS (CRIMINAL LAW. PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY EVALUATION OF THE EFFECT OF THE ERRORS ON THE CONVICTION)/PROSECUTORIAL MISCONDUCT (PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY EVALUATION OF THE EFFECT OF THE ERRORS ON THE CONVICTION)

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WHEN DEFENDANT INDICATED AT SENTENCING HE WAS NOT INVOLVED IN ONE OF THE RELEVANT OFFENSES THE SENTENCING JUDGE SHOULD HAVE QUESTIONED THE DEFENDANT ABOUT WHETHER HIS WISHED TO WITHDRAW HIS PLEA, FAILURE TO DO SO REQUIRED REVERSAL.

The Third Department determined statements made by the defendant at his sentencing, denying involvement in at least one of the relevant offenses, raised questions about whether plea was voluntary and required further inquiry, including whether defendant wished to withdraw his plea:

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… [W]hile the issue most often arises during the plea allocution… , the Court of Appeals has recognized that a defendant may negate an element of the crime to which a plea has been entered or make a statement suggestive of an involuntary plea at postplea proceedings, including sentencing, which may require the trial court to then conduct a further inquiry or give the defendant an opportunity to withdraw the plea … . …

… [W]hen confronted by County Court with the fact that he had pleaded guilty to assault in the first degree, which requires intent to cause serious physical injury to another person … , defendant asserted that it was his deceased friend who “actually did the shooting” and that he “was at the wrong place at the wrong time.” County Court recognized that defendant was denying the intentional assault, but it made no further inquiry. County Court proceeded to sentencing without providing defendant with an opportunity to withdraw his guilty plea. This was error. Although defendant did not preserve his challenge to the voluntariness of his plea by making a motion to withdraw his plea, his statements at sentencing triggered the exception to the preservation requirement … .. While defendant’s remarks did not necessarily implicate all of the crimes to which he pleaded guilty, because it was an integrated plea agreement with a promised aggregate sentence, the judgment must be reversed in its entirety … . People v Gresham, 2017 NY Slip Op 04498, 3rd Dept 6-8-17

 

SENTENCING (DENIAL OF INVOLVEMENT, WITHDRAWAL OF PLEA, WHEN DEFENDANT INDICATED AT SENTENCING HE WAS NOT INVOLVED IN ONE OF THE RELEVANT OFFENSES THE SENTENCING JUDGE SHOULD HAVE QUESTIONED THE DEFENDANT ABOUT WHETHER HIS WISHED TO WITHDRAW HIS PLEA, FAILURE TO DO SO REQUIRED REVERSAL)/CRIMINAL LAW (SENTENCING, DENIAL OF INVOLVEMENT, WITHDRAWAL OF PLEA,WHEN DEFENDANT INDICATED AT SENTENCING HE WAS NOT INVOLVED IN ONE OF THE RELEVANT OFFENSES THE SENTENCING JUDGE SHOULD HAVE QUESTIONED THE DEFENDANT ABOUT WHETHER HIS WISHED TO WITHDRAW HIS PLEA, FAILURE TO DO SO REQUIRED REVERSAL) )/JUDGES (CRIMINAL LAW, SENTENCING, DENIAL OF INVOLVEMENT, WITHDRAWAL OF PLEA, WHEN DEFENDANT INDICATED AT SENTENCING HE WAS NOT INVOLVED IN ONE OF THE RELEVANT OFFENSES THE SENTENCING JUDGE SHOULD HAVE QUESTIONED THE DEFENDANT ABOUT WHETHER HIS WISHED TO WITHDRAW HIS PLEA, FAILURE TO DO SO REQUIRED REVERSAL)

MOTION TO CONDITIONALLY SEAL RECORD OF A MISDEMEANOR DRUG CONVICTION SHOULD HAVE BEEN REVIEWED AND GRANTED.

The Third Department determined defendant’s motion to have the record of her drug offense sealed pursuant to Criminal Procedure Law (CPL 160.58 should have been reviewed and granted. County Court refused to consider the motion because defendant’s plea agreement did not address conditional sealing of the record. But CPL 160.58 had not been enacted at the time of the plea:

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The record establishes that defendant’s misdemeanor conviction is her sole criminal offense, she has not been arrested since 2008, she has successfully completed the drug court program (thereby avoiding incarceration), she has obtained a college degree and maintained gainful employment and she continues to participate in Narcotics Anonymous. Further, although defendant has received a certificate of relief from civil disabilities, her criminal record is likely to be an impediment to both the furtherance of her career and her future employment prospects. In view of the foregoing, and given that the People now concur with the relief requested by defendant, her motion should be granted and the record of her criminal conviction conditionally sealed pursuant to CPL 160.58. People v Jihan Qq., 2017 NY Slip Op 04524, 3rd Dept 6-8-17

CRIMINAL LAW (SEALING RECORD, MOTION TO CONDITIONALLY SEAL RECORD OF A MISDEMEANOR DRUG CONVICTION SHOULD HAVE BEEN REVIEWED AND GRANTED)/SEALING RECORDS (CRIMINAL LAW, MOTION TO CONDITIONALLY SEAL RECORD OF A MISDEMEANOR DRUG CONVICTION SHOULD HAVE BEEN REVIEWED AND GRANTED)

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CONTEMPT ORDER IN A CIVIL MATTER INVOLVING THE SAME FUNDS DEFENDANT WAS ACCUSED OF STEALING IN THE CRIMINAL MATTER IS NOT MOLINEUX EVIDENCE, THE PROBATIVE VALUE OF THE ORDER ON THE QUESTION OF INTENT OUTWEIGHED ITS PREJUDICIAL EFFECT.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined that a contempt order in a civil proceeding involving the same funds defendant was accused of stealing in the criminal action: (1) was not Molineux evidence because it involved the same subject matter as did the criminal action; and (2) the probative value of the order on the question of intent outweighed its prejudicial effect:

“When we limit Molineux or other propensity evidence, we do so for policy reasons, due to fear of the jury’s human tendency to more readily believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime” … . In other words, the courts limit the admission of Molineux evidence because of the danger that the jury might conclude that if the defendant did it once, he or she likely did it again.

Where, as here, the evidence at issue is relevant to the very same crime for which the defendant is on trial, there is no danger that the jury will draw an improper inference of propensity because no separate crime or bad act committed by the defendant has been placed before the jury. * * *

The Appellate Division correctly concluded that the contempt order was relevant to prove defendant’s larcenous intent because “it showed that defendant’s conduct did not merely constitute poor financial management but, rather, that defendant, through his businesses, intended to deprive [the business entity] of the diverted money permanently” … . People v Frumusa, 2017 NY Slip Op 04495, CtApp 6-8-17

CRIMINAL LAW (EVIDENCE, CONTEMPT ORDER IN A CIVIL MATTER INVOLVING THE SAME FUNDS AS DEFENDANT WAS ACCUSED OF STEALING IN THE CRIMINAL MATTER IS NOT MOLINEUX EVIDENCE, THE PROBATIVE VALUE OF THE ORDER ON THE QUESTION OF INTENT OUTWEIGHED ITS PREJUDICIAL EFFECT)/EVIDENCE (CRIMINAL LAW, MOLINEUX, CONTEMPT ORDER IN A CIVIL MATTER INVOLVING THE SAME FUNDS AS DEFENDANT WAS ACCUSED OF STEALING IN THE CRIMINAL MATTER IS NOT MOLINEUX EVIDENCE, THE PROBATIVE VALUE OF THE ORDER ON THE QUESTION OF INTENT OUTWEIGHED ITS PREJUDICIAL EFFECT)/MOLINEUX EVIDENCE (CRIMINAL LAW, CONTEMPT ORDER IN A CIVIL MATTER INVOLVING THE SAME FUNDS AS DEFENDANT WAS ACCUSED OF STEALING IN THE CRIMINAL MATTER IS NOT MOLINEUX EVIDENCE, THE PROBATIVE VALUE OF THE ORDER ON THE QUESTION OF INTENT OUTWEIGHED ITS PREJUDICIAL EFFECT)

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TRIAL JUDGE PROPERLY RESETTLED THE RECORD OF THE TRIAL BY CORRECTING TYPOGRAPHICAL ERRORS IN THE TRANSCRIPT WITHOUT A HEARING.

The Court of Appeals, in a full-fledged opinion by Judge Wilson, with two concurring opinions, determined the trial judge properly resettled the record of the trial without holding a hearing. The original transcript indicated the jury was instructed the defendant was charged with “unintentional” murder. The prosecutor submitted an affirmation based upon a conversation with the court stenographer stating that the word “unintentional” was a typographical error and the stenographic notes reflected the word “intentional” was actually used. The stenographer submitted a certified corrected transcript:

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Several factors support the Appellate Division’s conclusion that Supreme Court acted within its discretion to resettle the transcript on the basis of the information before it. The trial judge could rely not only on the reporter’s certification of the corrected transcript, but also on undisputed portions of that transcript, including: the accurate balance of the charge; the fact that two of the five alleged misstatements were attributed to defense counsel, not the court; and, most significantly, the repeated failure of any party to object to what would have been prominent misstatements of the law. Furthermore, as there was no suggestion during oral argument on the motion that any person present at the trial five years earlier could recollect what words were spoken, it is not clear what evidence beyond the reporter’s original stenographic notes might have been obtained through a hearing.

Although it would have been preferable for the court to have received an affidavit from the court reporter, rather than an affidavit of counsel recounting a conversation with that reporter, we cannot say that Supreme Court acted outside its discretion to resettle the transcript without a hearing. People v Bethune, 2017 NY Slip Op 04493, CtApp 6-8-17

 

CRIMINAL LAW (RESETTLING THE RECORD, TRIAL JUDGE PROPERLY RESETTLED THE RECORD OF THE TRIAL BY CORRECTING TYPOGRAPHICAL ERRORS IN THE TRANSCRIPT WITHOUT A HEARING)/APPEALS (CRIMINAL LAW, RESETTLING THE RECORD, TRIAL JUDGE PROPERLY RESETTLED THE RECORD OF THE TRIAL BY CORRECTING TYPOGRAPHICAL ERRORS IN THE TRANSCRIPT WITHOUT A HEARING)

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined defense counsel was not ineffective for failing to object to evidence the complainant, who alleged she was sexually abused by the defendant many years earlier, disclosed the abuse to friends three years after the abuse ceased and again four years later. Defense counsel’s strategy was to show the complainant was a “troubled teen” and inconsistencies in the statements were part of a “recent fabrication” defense:

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Here, defendant argues that counsel’s failure to object to the testimony regarding the victim’s disclosures must have arisen from his ignorance or misunderstanding of the law on prompt outcry testimony and, thus, cannot be considered a matter of strategy. We disagree. While “it is generally improper to introduce testimony that the witness had previously made prior consistent statements” to bolster the witness’s credibility, the use of prior consistent statements is permitted to demonstrate a prompt outcry, rebut a charge of recent fabrication, or “to assist in ‘explaining the investigative process and completing the narrative of events leading to defendant’s arrest'” … . “‘New York courts have routinely recognized that nonspecific testimony about [a] child-victim’s reports of sexual abuse [does] not constitute improper bolstering [when] offered for the relevant, nonhearsay purpose of explaining the investigative process'”… .

A conclusion that the fact of the victim’s disclosures herein to the school counselor and detective would likely be admissible to “complete the narrative” was “consistent with [a conclusion that] a reasonably competent attorney” could make  … . … [C}ounsel was not ineffective for failure to make a motion that had little chance of success …. Instead of objecting to that testimony, counsel strategically chose to use the evidence to defendant’s advantage by exploring the substance of, and the circumstances surrounding, the disclosure in depth to support the defense of recent fabrication. People v Honghirun, 2017 NY Slip Op 04496, CtApp 6-8-17

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, EVIDENCE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE)/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE)EVIDENCE (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DELAYED DISCLOSURE OF SEXUAL ABUSE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE)

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