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DEFENDANT CHARGED WITH INSURANCE FRAUD INVOLVING AIG, FOR CAUSE CHALLENGE TO JUROR WHO WORKED FOR AIG SHOULD HAVE BEEN GRANTED 2ND DEPT.

The Second Department, reversing defendant’s convictions, determined the “for cause” challenge to a juror should have been granted. Defendant was charged with offenses related to insurance fraud. The insurer was AIG. The prospective juror worked for AIG:

Here, during the first round of jury selection, prospective juror No. 16 indicated that she worked for AIG. Upon inquiry by the defendant, the prospective juror explained that her job involved analyzing the financial policies for three divisions at AIG: “[a]sset management, financial services, and domestic life.” We note that, in response to the defendant’s questions, the prospective juror did not provide a completely unequivocal assurance that she could be fair and impartial. She thought that she could be fair and impartial, but conceded that there “may be” a conflict of interest from the defendant’s perspective, and that it might be better if she were on a different case so as to enable the defendant to feel “comfortable” that he “wouldn’t be prejudiced in any way.” Thereafter, the County Court denied the defendant’s for-cause challenge without asking the prospective juror any questions about her employment at AIG or how it might affect her ability to serve as a juror, notwithstanding that the court had an obligation to try and determine “[a]ll issues of fact or law arising on the challenge” (CPL 270.20[2]).

Contrary to the County Court’s determination, the prospective juror’s professional relationship with AIG, her employer, rendered her unsuitable for jury service and necessitated her removal for cause (see CPL 270.20[1][c]… ). We note that AIG drafted and funded the insurance check underlying several counts of the indictment, and AIG was the named complainant in the count alleging insurance fraud in the third degree. Under all the circumstances, there was a considerable risk that the prospective juror could unwittingly give undue credence to witnesses from AIG and her service would give rise to the perception that the defendant did not receive a fair trial … . People v Guldi, 2017 NY Slip Op 05459, 2nd Dept 7-5-17

 

CRIMINAL LAW (JURORS, FOR CAUSE CHALLENGE, DEFENDANT CHARGED WITH INSURANCE FRAUD INVOLVING AIG, FOR CAUSE CHALLENGE TO JUROR WHO WORKED FOR AIG SHOULD HAVE BEEN GRANTED 2ND DEPT)/JURORS (CRIMINAL LAW, FOR CAUSE CHALLENGE,  DEFENDANT CHARGED WITH INSURANCE FRAUD INVOLVING AIG, FOR CAUSE CHALLENGE TO JUROR WHO WORKED FOR AIG SHOULD HAVE BEEN GRANTED 2ND DEPT)/FOR CAUSE CHALLENGE (CRIMINAL LAW, DEFENDANT CHARGED WITH INSURANCE FRAUD INVOLVING AIG, FOR CAUSE CHALLENGE TO JUROR WHO WORKED FOR AIG SHOULD HAVE BEEN GRANTED 2ND DEPT)

EMPANELING AN ANONYMOUS JURY VIOLATED THE CRIMINAL PROCEDURE LAW AND WAS NOT HARMLESS ERROR 2ND DEPT.

The Second Department, in a full-fledged opinion by Justice Leventhal, reversing (over a dissent) defendants' convictions in a gang assault case, and granting leave for the People to appeal to the Court of Appeals, determined it was reversible error to empanel an anonymous jury. The trial judge explained his reasoning for not revealing the jurors' names as follows: “I know the last five years an increasing number of jurors told me that A, they feel uncomfortable walking in and out of the courtroom to their cars; B, they feel really uncomfortable giving their names, especially in violent felonies. And after speaking to [the Commissioner of Jurors] about it, she told me that's exactly the same feedback she gets, that jurors are uncomfortable about those two things, especially having their names in the courtroom. Now, my intent is to get as many jurors as we can possibly get to serve. And I think that because of that, I think that it limits the number of jurors that we get because they don't want to go through that worry and stress . . . about this because these are violent felonies. You know and I know we deal with this stuff every day, jurors don't. And that's the reason. It's not specifically this case, but that's the reason it's happening more and more and more often. So that's the reason.” The Second Department held the empaneling of an anonymous jury violated the criminal procedure law and the error was not harmless (the dissent argued the error was harmless):

The best evidence of the Legislature's intent is the text of the statute itself … . Where the statutory language is clear and unambiguous, a court should construe it so as to give effect to the plain meaning of the words used … .

CPL 270.15(1)(a) provides, in part, “the court shall direct that the names of not less than twelve members of the panel be drawn and called as prescribed by the judiciary law.”

CPL 270.15(1-a) provides:

“The court may for good cause shown, upon motion of either party or any affected person or upon its own initiative, issue a protective order for a stated period regulating disclosure of the business or residential address of any prospective or sworn juror to any person or persons, other than to counsel for either party. Such good cause shall exist where the court determines that there is a likelihood of bribery, jury tampering or of physical injury or harassment of the juror.”

Read together, these sections of CPL 270.15 prohibit a trial court from withholding the names of prospective jurors. The plain language of CPL 270.15(1)(a) provides that the names be called. CPL 270.15(1-a) allows for the issuance of a protective order regulating disclosure of addresses. It does not allow for the issuance of a protective order regulating disclosure of names. People v Flores, 2017 NY Slip Op 05457, 2nd Dept 7-5-17

CRIMINAL LAW (EMPANELING AN ANONYMOUS JURY VIOLATED THE CRIMINAL PROCEDURE LAW AND WAS NOT HARMLESS ERROR 2ND DEPT)/JURIES (CRIMINAL LAW, EMPANELING AN ANONYMOUS JURY VIOLATED THE CRIMINAL PROCEDURE LAW AND WAS NOT HARMLESS ERROR 2ND DEPT)/ANONYMOUS JURIES (CRIMINAL LAW, EMPANELING AN ANONYMOUS JURY VIOLATED THE CRIMINAL PROCEDURE LAW AND WAS NOT HARMLESS ERROR 2ND DEPT)

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PEOPLE PROPERLY ALLOWED TO IMPEACH THEIR OWN WITNESS, THE WITNESS’S TESTIMONY AFFIRMATIVELY DAMAGED THE PEOPLE’S CASE AND WAS NOT, AS ARGUED BY THE CONCURRING JUSTICES, MERELY NEUTRAL OR UNHELPFUL.

The Fourth Department, over a two-justice concurrence, determined the People were properly allowed to impeach their own witness when the witness testified she did not see the driver of the car from which shots were fired. She had previously stated the defendant was the driver. The concurring justices argued that the witness’s changed testimony did not affirmatively damage the People’s case, but was merely neutral and unhelpful, and therefore impeachment was not appropriate. However, the concurring justices deemed the error harmless:

Contrary to defendant’s … contention, the court properly allowed the People to impeach the credibility of the victim’s girlfriend when she testified that she did not see the driver of the vehicle who shot the victim, which contradicted her grand jury testimony and her sworn statement identifying defendant as the shooter. It is well established that “[e]vidence of a prior contradictory statement may be received for the limited purpose of impeaching the witness’s credibility with respect to his or her testimony . . . [where, as here], the testimony on a material fact’ . . . tend[s] to disprove the party’s position or affirmatively damage[s] the party’s case’ ” … . We conclude that the testimony of the witness denying that she saw the driver related to a material fact, the identity of the shooter, and affirmatively damaged the People’s case … , particularly because the victim did not testify. People v Ellison, 2017 NY Slip Op 05339, 4th Dept 6-30-17

 

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DEFENDANT WAS ERRONEOUSLY TOLD HE COULD APPEAL THE GRAND JURY EVIDENCE ISSUES AFTER ENTERING A GUILTY PLEA, HIS MOTION TO WITHDRAW HIS PLEA UPON LEARNING OF THE ERROR SHOULD HAVE BEEN GRANTED. ​

The Fourth Department determined defendant’s motion to withdraw his guilty plea should have been granted. Defendant was told he could appeal the court’s ruling that the grand jury minutes constituted legally sufficient evidence of the charges in the indictment. However the denial of a motion to dismiss arguing the insufficiency or inadmissibility of the grand jury evidence is not appealable after a guilty plea:

We agree with defendant … that the court erred in denying his motion to withdraw his plea of guilty. “A trial court is constitutionally required to ensure that a defendant, before entering a guilty plea, has a full understanding of what the plea entails and its consequences” … . It is nevertheless well established that a guilty plea is not invalid merely because the court “failed to specifically enumerate all the rights to which the defendant was entitled and to elicit from him or her a list of detailed waivers before accepting the guilty plea” … . Where the record establishes, however, that the court incorrectly advised the defendant of the consequences of his guilty plea, the resulting plea “must be vacated because it was not knowingly, intelligently and voluntarily entered” … .

Here, the court incorrectly advised defendant with respect to the rights that defendant was forfeiting in pleading guilty. It is well established that a defendant who pleads guilty may not challenge on appeal the sufficiency or the admissibility of the evidence before the grand jury … . The record establishes, however, that defendant asked to be assured that he could raise those issues on appeal from a judgment entered upon his plea of guilty, and the court assured him that he could do so. Given those assurances, which ended up being false, defendant accepted the plea deal, and entered a guilty plea. When defendant learned that he would not be able to raise on appeal the above grand jury issues, he made a motion to withdraw his plea, which the court denied. Under the circumstances, that was error. People v Colon, 2017 NY Slip Op 05343, 4th Dept 6-30-17

 

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MULTIPLICITOUS COUNTS OF SEX OFFENSE INDICTMENT DISMISSED IN THE INTEREST OF JUSTICE, THE COUNTS CHARGED SINGLE UNINTERRUPTED OFFENSES WHICH SHOULD NOT HAVE BEEN SPLIT INTO TWO COUNTS EACH.

The Fourth Department, in the interest of justice, determined several counts of the sex offense indictment were multiplicitous and therefore must be dismissed. The defendant was charged with two counts for single uninterrupted events, touching the victim’s vagina while simultaneously having the victim touch his penis:

An indictment is multiplicitous “when a single offense is charged in more than one count”… . A person commits the criminal offense of sexual abuse in the first degree when he or she subjects a person under 11 years old to sexual contact … . Nevertheless, a defendant may not be charged with separate counts of sexual abuse in the first degree for each instance of unlawful sexual contact where the instances of sexual contact constitute “a single, uninterrupted criminal act”  … . Here, for each instance of defendant touching a victim’s vagina, defendant was properly charged with a single and distinct count. By contrast, for each instance of defendant compelling a victim to touch his penis while defendant was simultaneously touching that victim’s vagina, defendant was charged with two separate counts. Charging two separate counts under those facts was improper inasmuch as the actions alleged in each pair of counts constituted a single, uninterrupted criminal act. We thus conclude that the indictment was multiplicitous, and we therefore dismiss counts 2, 5, 13 through 17, and 25 through 28 of indictment No. 5548 … . People v Sprague, 2017 NY Slip Op 05347, 4th dept 6-30-17

 

FOR CAUSE CHALLENGE TO JUROR WHO WANTED TO HEAR FROM EVERYONE (IMPLICITLY INCLUDING THE DEFENDANT) SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED.

The Fourth Department, reversing defendant’s conviction, determined a for cause challenge to a juror who said she would like to hear from everybody (implicitly including the defendant) should have been granted:

Upon being asked by defense counsel whether she thought that she “would have to hear from [defendant] in order to determine what the verdict should be,” the prospective juror responded, in relevant part, that she “would like to hear from everyone involved.” Defense counsel later asked the prospective juror, by way of confirmation, whether she had said that she would “like to hear from [defendant],” and the prospective juror reiterated that she “would like to hear from everyone.” We conclude that the prospective juror’s responses suggested that defendant had an obligation to testify, thereby casting serious doubt on her ability to render an impartial verdict … . We further conclude that the prospective juror’s silence when the court subsequently asked the entire panel whether anyone “needs to hear from the defendant or must hear from the defendant before he or she renders a verdict” did not constitute an unequivocal assurance of impartiality that would warrant denial of defendant’s challenge for cause … . People v Hargis, 2017 NY Slip Op 05363, 4th Dept 6-30-17

 

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NEW YORK’S PERSISTENT FELONY OFFENDER SENTENCING SCHEME IS CONSTITUTIONAL, IT DOES NOT INVOLVE PROOF OF A FACT OTHER THAN A PRIOR FELONY CONVICTION.

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reaffirmed its prior holdings finding New York’s persistent felony offender sentencing scheme constitutional:

The Sixth and Fourteenth Amendments guarantee criminal defendants in state courts “the right to a speedy and public trial, by an impartial jury.” To satisfy that right, the People must prove each element of a crime beyond a reasonable doubt. Among those elements is any fact — other than one admitted by the defendant or involving the mere fact of a prior felony conviction … — that has the effect of increasing the prescribed range of penalties to which a defendant is exposed … . …

… [W]e have held that the [persistent felony offender] statute … exposes defendants to an enhanced sentencing range based only on the existence of two prior felony convictions … . As we have consistently explained, the existence of those prior convictions — each the result of either a guilty plea or a jury verdict — is the “sole determinant of whether a defendant is subject to recidivist sentencing as a persistent felony offender” … . Only after the existence of those prior convictions is established and the maximum permissible sentence raised does Supreme Court have “the discretion to choose the appropriate sentence within a sentencing range prescribed by statute” … .

“The court’s opinion is, of course, subject to appellate review, as is any exercise of discretion. The Appellate Division, in its own discretion, may conclude that a persistent felony offender sentence is too harsh or otherwise improvident” and reduce it in the interest of justice to a sentence within the statutory range fixed by the legislature for the crime of conviction, without regard to the persistent felony offender enhancement … . “In this way, the Appellate Division can and should mitigate inappropriately severe applications of the statute” … .

In other words, the statute mandates a two-part process: in step one, the court adjudicates the defendant a persistent felony offender if the necessary and sufficient fact of the two prior convictions is proved beyond a reasonable doubt, thereby exposing him to the sentencing range applicable to such offenders; in step two, it evaluates what sentence is warranted and sets forth an explanation of its opinion on that question for the record … . People v Prindle, 2017 NY Slip Op 05267, CtApp 6-29-17

 

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PROSECUTOR’S CHARACTERIZATION OF DNA EVIDENCE WAS NOT IMPROPER, DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE CHARACTERIZATION WAS NOT INEFFECTIVE ASSISTANCE.

The Court of Appeals, reversing the appellate division, determined the characterization of the DNA evidence by the prosecutor was not improper, and defense counsel’s failure to object to the characterization did not constitute ineffective assistance:

The People’s forensic expert gave statistical testimony regarding the likelihood (“1.661 quadrillion times more likely”) that defendant and his deceased wife, rather than two randomly selected individuals, were contributors to a DNA mixture profile drawn from a blood stain on defendant’s sweatshirt. The prosecutor, during his summation, summarized this testimony by telling the jury that the victim’s DNA was “on” defendant’s sweatshirt. Defense counsel’s failure to object to this characterization did not amount to ineffective assistance of counsel. The expert testimony regarding the “likelihood ratio” here contrasts with the testimony at issue in People v Wright (25 NY3d 769 [2015]), which “only indicated that defendant could not be excluded from the pool of male DNA contributors, and . . . provided no statistical comparison to measure the significance of those results” … . Nor did counsel’s other alleged errors of representation, either individually or collectively, deprive defendant of meaningful representation. People v Ramsaran, 2017 NY Slip Op 05268, CtApp 6-29-17

 

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SUPREME COURT DID NOT ERR IN HOLDING THE SORA HEARING IN DEFENDANT’S ABSENCE WITHOUT MAKING A DETERMINATION OF DEFENDANT’S COMPETENCE, THERE WERE CLEAR SIGNS DEFENDANT DID NOT UNDERSTAND THE PROCEEDINGS.

The Second Department, in a full-fledged opinion by Justice Roman, held Supreme Court did not err in excluding defendant from the SORA proceeding because of unruly behavior and proceeding with the hearing without a determination of defendant’s competency. Defendant’s competency had been called into question by defendant’s past behavior, his behavior at the SORA hearing, and defense counsel’s statements to the court. The opinion is comprehensive and includes an extensive discussion of the due process rights afforded defendants in SORA proceedings, parole revocation proceeding, and proceedings under the Mental Hygiene Law:

While the absence of a provision in SORA for a proceeding involving a defendant who is incapacitated is an issue which the Legislature may wish to address, we hold that if, and when, the defendant is mentally competent to understand the nature of the SORA proceeding, a de novo SORA risk assessment hearing may be held. Correction Law § 168-o(2) permits a sex offender required to register pursuant to SORA to petition the court annually for modification of his or her risk level classification … . Although the statute places the burden on a defendant seeking modification to prove the facts supporting the requested modification by clear and convincing evidence … , in light of the fact that an incompetent defendant is not “present” at the original hearing, the burden should remain with the People at the subsequent hearing at which the defendant is, for the first time, present. This approach fulfills the court’s mandatory obligations under SORA and ensures the statute’s goal of protecting the public, while, at the same time, affording the defendant the opportunity to be present and heard on the issue of his risk level designation when he is competent to do so. People v Parris, 2017 NY Slip Op 05252, 2nd Dept 6-28-17

 

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UPWARD DEPARTURE FROM THE PRESUMPTIVE RISK LEVEL NOT AUTHORIZED, CRITERIA EXPLAINED.

The Second Department, reversing County Court, determined the upward departure from the presumptive risk level was not authorized. The facts were not discussed but the applicable law was clearly explained:

Once the presumptive risk level has been established at a risk level hearing, the court is permitted to depart from it if “special circumstances” warrant a departure … . An upward departure is permitted only if the court concludes, upon clear and convincing evidence, that there exists an aggravating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines … .

“Under SORA, a court must follow three analytical steps to determine whether or not to order a departure from the presumptive risk level indicated by the offender’s guidelines factor score. At the first step, the court must decide whether the aggravating or mitigating circumstances alleged by a party seeking a departure are, as a matter of law, of a kind or to a degree not adequately taken into account by the guidelines” … . “At the second step, the court must decide whether the party requesting the departure has adduced sufficient evidence to meet its burden of proof in establishing that the alleged aggravating or mitigating circumstances actually exist in the case at hand. If the party applying for a departure surmounts the first two steps, the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure” (id. [citations omitted]). If, however, the People do not satisfy the first two requirements, the court does not have the discretion to upwardly depart from the presumptive risk level … .

Under the circumstances presented, the People did not meet their burden of proof with respect to the first two requirements. Therefore, an upward departure was not authorized … . People v Cassarly, 2017 NY Slip Op 05251, 2nd Dept 6-28-17

 

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