You are here: / Criminal Law
,

RARE CIRCUMSTANCE WHERE COURT SHOULD HAVE DIRECTLY QUESTIONED DEFENDANT ABOUT WHETHER HE KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO TESTIFY.

The Third Department, reversing defendant’s conviction, determined the facts presented the rare scenario that required the court’s inquiry into whether defendant waived his right to testify. After proof had closed, the defendant made it clear that he wanted to testify and that he and his attorney did not agree on the question:

​

Defendant’s request to testify, coupled with his statements that he and defense counsel had disagreed on the issue, gave rise to one of those rare circumstances in which County Court was required to engage in a direct colloquy with defendant so as to discern whether he had been advised that the decision to testify ultimately belonged to him and whether, at the time that the defense rested, defendant’s failure to testify had been a knowing, voluntary and intelligent waiver of that right … . However, County Court failed to engage in the required inquiry so as to ensure that defendant’s constitutional right to testify was protected. While County Court asked whether there was an application to reopen the proof and indicated that it would consider such a request, it directed that question only to defense counsel, even in the face of defendant’s repeated statements that he and defense counsel had differing opinions on the matter. By directing its question solely to defense counsel, County Court demonstrated an apparent misapprehension of longstanding precedent holding that a represented defendant has final decision-making authority over the decision to testify … . People v Morgan, 2017 NY Slip Op 02692, 3rd Dept 4-6-17

CRIMINAL LAW (RARE CIRCUMSTANCE WHERE COURT SHOULD HAVE DIRECTLY QUESTIONED DEFENDANT ABOUT WHETHER HE KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO TESTIFY)/TESTIFY, RIGHT TO (CRIMINAL LAW, RARE CIRCUMSTANCE WHERE COURT SHOULD HAVE DIRECTLY QUESTIONED DEFENDANT ABOUT WHETHER HE KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO TESTIFY)

WARRANTS ISSUED TO FACEBOOK UNDER THE STORED COMMUNICATIONS ACT CANNOT BE TREATED AS CIVIL SUBPOENAS, UNDER THE CRIMINAL PROCEDURE LAW THERE IS NO MECHANISM FOR APPEALING THE DENIAL OF A MOTION TO QUASH A WARRANT.

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a concurring opinion and an extensive dissenting opinion, determined that the Criminal Procedure Law (CPL) did not allow a motion to quash a warrant issued pursuant to the federal Stored Communications Act (SCA) and did not allow an appeal from the denial of the motion. The motions and appeals were brought by Facebook in response to SCA warrants seeking information about subscriber accounts in connection with criminal investigations. Facebook argued that the warrants were actually subpoenas which could be quashed under civil standards. The Court of Appeals held the warrants were not subpoenas and the CPL therefore controlled:

​

That the SCA draws a distinction between warrants and subpoenas, and the content that may be obtained therewith, is of critical significance with respect to a determination of appellate jurisdiction over the appeal from the denial of Facebook’s motion to quash. It is a fundamental precept of the jurisdiction of our appellate courts that “‘[n]o appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute'” … . No provision of the Criminal Procedure Law articles that govern appeals — which are among “‘the most highly structured and highly particularized articles of procedure'” … — authorizes an appeal to either an intermediate appellate court or to this Court from an order denying a motion to quash or vacate a search warrant … . Moreover, no civil appeal may be brought from an order entered in a criminal action or proceeding … . * * *

​

In the instant matter, Facebook concedes that an order addressing a motion to quash a warrant is not appealable, but Facebook contends — and the dissent agrees — that, despite being denominated as “warrants,” SCA warrants are more analogous to subpoenas than to traditional search warrants involving tangible property because they compel third parties to disclose digital data. Thus, Facebook and the dissent urge us to treat Supreme Court’s first order denying its motion to quash the warrants as an appealable order denying a motion to quash subpoenas. This argument is unpersuasive. Matter of 381 Search Warrants Directed to Facebook, Inc., 2017 NY Slip Op 02586, CtApp 4-4-17

 

CRIMINAL LAW (WARRANTS ISSUED TO FACEBOOK UNDER THE STORED COMMUNICATIONS ACT CANNOT BE TREATED AS CIVIL SUBPOENAS, UNDER THE CRIMINAL PROCEDURE LAW THERE IS NO MECHANISM FOR APPEALING THE DENIAL OF A MOTION TO QUASH A WARRANT)/STORED COMMUNICATIONS ACT (WARRANTS ISSUED TO FACEBOOK UNDER THE STORED COMMUNICATIONS ACT CANNOT BE TREATED AS CIVIL SUBPOENAS, UNDER THE CRIMINAL PROCEDURE LAW THERE IS NO MECHANISM FOR APPEALING THE DENIAL OF A MOTION TO QUASH A WARRANT)/SEARCH AND SEIZURE  (WARRANTS ISSUED TO FACEBOOK UNDER THE STORED COMMUNICATIONS ACT CANNOT BE TREATED AS CIVIL SUBPOENAS, UNDER THE CRIMINAL PROCEDURE LAW THERE IS NO MECHANISM FOR APPEALING THE DENIAL OF A MOTION TO QUASH A WARRANT)/SUBPOENAS (STORED COMMUNICATIONS ACT, WARRANTS ISSUED TO FACEBOOK UNDER THE STORED COMMUNICATIONS ACT CANNOT BE TREATED AS CIVIL SUBPOENAS, UNDER THE CRIMINAL PROCEDURE LAW THERE IS NO MECHANISM FOR APPEALING THE DENIAL OF A MOTION TO QUASH A WARRANT)/FACEBOOK  (WARRANTS ISSUED TO FACEBOOK UNDER THE STORED COMMUNICATIONS ACT CANNOT BE TREATED AS CIVIL SUBPOENAS, UNDER THE CRIMINAL PROCEDURE LAW THERE IS NO MECHANISM FOR APPEALING THE DENIAL OF A MOTION TO QUASH A WARRANT)

,

POWERPOINT PRESENTATION OF ANNOTATED TRIAL EXHIBITS DURING PROSECUTOR’S SUMMATION WAS PROPER BECAUSE THE ANNOTATIONS WERE CONSISTENT WITH THE TRIAL EVIDENCE.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a two-judge, extensive, dissenting opinion, determined that the prosecutor’s use of a PowerPoint presentation of annotated trial exhibits during summation was proper because the annotations fairly described the evidence:

​

At bottom, a visual demonstration during summation is evaluated in the same manner as an oral statement. If an attorney can point to an exhibit in the courtroom and verbally make an argument, that exhibit and argument may also be displayed to the jury, so long as there is a clear delineation between argument and evidence, either on the face of the visual demonstration, in counsel’s argument, or in the court’s admonitions. We reject defendant’s position that trial exhibits in a PowerPoint presentation may only be displayed to the jury in unaltered, pristine form, and that any written comment or argument superimposed on the slides is improper. Rather, PowerPoint slides may properly be used in summation where, as here, the added captions or markings are consistent with the trial evidence and the fair inferences to be drawn from that evidence. When the superimposed text is clearly not part of the trial exhibits, and thus could not confuse the jury about what is an exhibit and what is argument or commentary, the added text is not objectionable. The slides, in contrast to the exhibits, are not evidence. The court properly instructed the jury that what the lawyers say during summations is not evidence, and that in finding the facts, the jury must consider only the evidence. In this case, as was appropriate, the jury was told that the physical exhibits admitted into evidence would be made available to them, while the slides were not supplied to the jury during deliberations. People v Anderson, 2017 NY Slip Op 02589, CtApp 4-4-17

CRIMINAL LAW (POWERPOINT PRESENTATION OF ANNOTATED TRIAL EXHIBITS DURING PROSECUTOR’S SUMMATION WAS PROPER BECAUSE THE ANNOTATIONS WERE CONSISTENT WITH THE TRIAL EVIDENCE)/ATTORNEYS (CRIMINAL LAW, POWERPOINT PRESENTATION OF ANNOTATED TRIAL EXHIBITS DURING PROSECUTOR’S SUMMATION WAS PROPER BECAUSE THE ANNOTATIONS WERE CONSISTENT WITH THE TRIAL EVIDENCE)/PROSECUTORIAL MISCONDUCT (POWERPOINT PRESENTATION OF ANNOTATED TRIAL EXHIBITS DURING PROSECUTOR’S SUMMATION WAS PROPER BECAUSE THE ANNOTATIONS WERE CONSISTENT WITH THE TRIAL EVIDENCE)/POWERPOINT (POWERPOINT PRESENTATION OF ANNOTATED TRIAL EXHIBITS DURING PROSECUTOR’S SUMMATION WAS PROPER BECAUSE THE ANNOTATIONS WERE CONSISTENT WITH THE TRIAL EVIDENCE)

,

INACCURATE ANNOTATIONS ON TRIAL EXHIBITS DISPLAYED BY THE PROSECUTOR IN A POWERPOINT PRESENTATION DURING SUMMATION DID NOT DEPRIVE THE DEFENDANT OF A FAIR TRIAL, THE TRIAL JUDGE TOOK APPROPRIATE STEPS TO ADDRESS THE PROBLEM.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined the inaccurate labeling of trial exhibits (photographs) in a PowerPoint presentation by the prosecutor during summation did not deprive the defendant of a fair trial. One photo, for example, was annotated with text indicating the photo depicted the defendant, but the witness who testified about the photo could not definitively say it was the defendant. The trial judge recognized the problem, stopped the PowerPoint presentation, and instructed the jury to disregard the slides:

​

There is no inherent problem with the use of a PowerPoint presentation as a visual aid in connection with closing arguments. Indeed, it can be an effective tool. But, the long-standing rules governing the bounds of proper conduct in summation apply equally to a PowerPoint presentation. In other words, if it would be improper to make a particular statement, it would likewise be improper to display it … . If counsel is going to superimpose commentary to images of trial exhibits, the annotations must, without question, accurately represent the trial evidence … . Moreover, any type of blatant appeal to the jury’s emotions or egregious proclamation of a defendant’s guilt would plainly be unacceptable … .

Here, defendant argues that he was deprived of a fair trial by the annotation of images of the trial exhibits to imply that the victim’s brother, in his testimony, had positively identified either his truck or defendant from the surveillance video because this misrepresented the witness’s testimony. Significantly, the trial court was very attuned to the annotated slides and, in the exercise of its discretion, ultimately stopped the slideshow and instructed the jury to disregard the slides … . To the extent any slides may have misrepresented the trial evidence, the trial court instructed the jury on more than one occasion that the attorneys’ arguments were not evidence and that the jury was the sole judge of the facts. Defense counsel also rejected the court’s offer of any less drastic relief after the denial of the mistrial motion. Thus, under these circumstances, defendant was not deprived of a fair trial. People v Williams, 2017 NY Slip Op 02588, CtApp 4-4-17

 

CRIMINAL LAW (INACCURATE ANNOTATIONS ON TRIAL EXHIBITS DISPLAYED BY THE PROSECUTOR IN A POWERPOINT PRESENTATION DURING SUMMATION DID NOT DEPRIVE THE DEFENDANT OF A FAIR TRIAL, THE TRIAL JUDGE TOOK APPROPRIATE STEPS TO ADDRESS THE PROBLEM)/ATTORNEYS (CRIMINAL LAW, INACCURATE ANNOTATIONS ON TRIAL EXHIBITS DISPLAYED BY THE PROSECUTOR IN A POWERPOINT PRESENTATION DURING SUMMATION DID NOT DEPRIVE THE DEFENDANT OF A FAIR TRIAL, THE TRIAL JUDGE TOOK APPROPRIATE STEPS TO ADDRESS THE PROBLEM)/PROSECUTORIAL MISCONDUCT  (INACCURATE ANNOTATIONS ON TRIAL EXHIBITS DISPLAYED BY THE PROSECUTOR IN A POWERPOINT PRESENTATION DURING SUMMATION DID NOT DEPRIVE THE DEFENDANT OF A FAIR TRIAL, THE TRIAL JUDGE TOOK APPROPRIATE STEPS TO ADDRESS THE PROBLEM)/POWERPOINT (CRIMINAL LAW, SUMMATION, INACCURATE ANNOTATIONS ON TRIAL EXHIBITS DISPLAYED BY THE PROSECUTOR IN A POWERPOINT PRESENTATION DURING SUMMATION DID NOT DEPRIVE THE DEFENDANT OF A FAIR TRIAL, THE TRIAL JUDGE TOOK APPROPRIATE STEPS TO ADDRESS THE PROBLEM)

, ,

DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO INTRODUCE TAPED THIRD-PARTY CONFESSION, THE RELIABILITY PRONG OF THE STATEMENT AGAINST PENAL INTEREST CRITERIA WAS VERY WEAK.

The Fourth Department determined the defendant’s motion to vacate the judgment of conviction on ineffective assistance grounds was properly denied. The basis of the ineffective assistance claim was his attorney’s failure to put in evidence a third party’s taped confession to the crime (to which defendant had pled guilty). The Fourth Department explained the tape recording did not meet the criteria for a statement against penal interest:

“The declaration against penal interest exception to the hearsay rule recognizes the general reliability of such statements . . . because normally people do not make statements damaging to themselves unless they are true’ ” … . “The exception has four components: (1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction or refusal to testify on constitutional grounds; (2) the declarant must be aware at the time the statement is made that it is contrary to penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient proof independent of the utterance to assure its reliability … . “The fourth factor is the most important’ aspect of the exception” … , and “[t]he crucial inquiry focuses on the intrinsic trustworthiness of the statement as confirmed by competent evidence independent of the declaration itself” … . Where, as here, the declaration exculpates the defendant, “[s]upportive evidence is sufficient if it establishes a reasonable possibility that the [declaration] might be true” … . …

In support of her conclusion that the confession was inadmissible, trial counsel testified that all she had was a voice on a tape recording and, based on her discussions with the prior attorney, “there was some question as to whether [the third party] was even voluntarily in [the prior attorney’s] office” when he made the confession. Defendant testified that the third party was a friend of one of his sisters, and that the third party and defendant’s sister smoked crack cocaine together. … [T]he prior attorney made arrangements for the third party to be appointed counsel, but the third party disappeared shortly thereafter and, despite diligent efforts, including maintaining the investigator’s search, trial counsel was unable to locate him even up through defendant’s trial. People v Conway, 2017 NY Slip Op 02530, 4th Dept 3-31-17

 

,

TRIAL JUDGE’S GRANT OF A TRIAL ORDER OF DISMISSAL IN THIS MURDER CASE WAS ERROR, HOWEVER THERE IS NO STATUTORY AUTHORITY FOR THE PEOPLE’S APPEAL.

The Fourth Department determined the People did not have statutory authority to appeal the grant of a trial order of dismissal after a mistrial had been declared because the jury could not reach a verdict. The Fourth Department explicitly stated that it had reviewed the evidence and found it legally sufficient to support the charge (murder). The trial order of dismissal, then, should not have been granted. But there was no mechanism for the People to appeal the error:

“It is fundamental that in the absence of a statute expressly authorizing a criminal appeal, there is no right to appeal” … . CPL 450.20, the “exclusive route for a People’s appeal” … , does not authorize this appeal. Contrary to the People’s contention, CPL 450.20 (2) does not provide the statutory basis for this appeal, inasmuch as the order they seek to appeal did not set aside a guilty verdict and dismiss the indictment pursuant to CPL 290.10 (1) (b). Rather, there was no guilty verdict to set aside, and the order was issued pursuant to CPL 290.10 (1) (a). Thus, the order is not appealable … . We may not “create a right to appeal out of thin air” in order to address the merits “without trespassing on the Legislature’s domain and undermining the structure of article 450 of the CPL—the definite and particular enumeration of all appealable orders” … . Were we able to review the merits, however, we would agree with the People that the court erred in dismissing the indictment. A “review [of] the legal sufficiency of the evidence as defined by CPL 70.10 (1), [while] accepting the competent evidence as true, in the light most favorable to the People,” compels the conclusion that the evidence was legally sufficient to support the charge … . People v Tan, 2017 NY Slip Op 02541, 4th Dept 3-31-17

 

,

DEFENDANT SHOULD NOT HAVE BEEN ASSESSED POINTS UNDER RISK FACTOR 7, DEFENDANT HAD LONG-TERM NON-SEXUAL RELATIONSHIPS WITH THE VICTIMS BEFORE THE ABUSE STARTED, DEFENDANT DID NOT ESTABLISH THE RELATIONSHIPS FOR THE PRIMARY PURPOSE OF VICTIMIZATION.

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge dissenting opinion, determined defendant should not have been assessed points under risk factor 7. Risk factor 7 applies when a defendant establishes a relationship with a victim for the primary purpose of victimization. Here the victims were the children of defendant’s long-time friends. Defendant had long-term non-sexual relationships with the children before the abuse began:

The People bore the burden of establishing by clear and convincing evidence that defendant promoted his relationship with one or more of the victims for the primary purpose of sexually abusing them (see Correction Law § 168-n [3]…). That burden was not met here. The record reflects that he had long-term, pre-existing relationships with the children, continued those relationships in the role of a close family friend who regularly spent substantial amounts of time with the children and their families, and did not begin to offend against them until the eldest child was approximately 11 years old … . Therefore, the evidence in this record does not support Supreme Court’s determination that defendant “promoted” his relationships with these children for purposes of victimization … , as opposed to redirecting his longstanding close and involved relationships with them in such a way as to allow for sexual abuse. People v Cook, 2017 NY Slip Op 02468, CtApp 3-30-17

 

,

WHERE THE RELEVANT OFFENSES WERE COMMITTED IN TWO COUNTIES, NO NEED FOR TWO SORA RISK ASSESSMENT PROCEEDINGS.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined only one SORA risk assessment proceeding should have been held. Defendant had simultaneously pled guilty to crimes committed in two counties. All of the crimes were taken into consideration in the first SORA assessment proceeding:

Where, as here, a single RAI [risk assessment instrument] addressing all relevant conduct is prepared, the goal of assessing the risk posed by the offender is fulfilled by a single SORA adjudication. To hold otherwise — that is, to permit multiple risk level determinations based on conduct included in a single RAI — would result in redundant proceedings and constitute a waste of judicial resources. Here, for instance, once the Division of Criminal Justice Services was notified of the Richmond County SORA court’s determination, “it had the information it needed to serve SORA’s goal of ‘protect[ing] the public from’ this particular sex offender” … . Any further proceedings then became duplicative. People v Cook, 2017 NY Slip Op 02467, CtApp 3-30-17

 

,

TRIAL COURT PROPERLY CHARGED THE JURY WITH THE INITIAL AGGRESSOR EXCEPTION TO THE JUSTIFICATION DEFENSE, APPELLATE DIVISION REVERSED.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a three-judge dissenting opinion, reversing the Appellate Division, determined the trial court properly charged the initial aggressor exception to the justification defense in this homicide case. The evidence was not clear about the timing, but the victim (McWillis) pursued the defendant with a plastic mop handle and swung at the defendant close in time to the shooting:

Here, as the Appellate Division dissent noted, “[n]o matter what the court charged in relation to the initial aggressor issue, [the jury could have reasonably concluded] there was simply no evidentiary support for a finding that defendant was justified in using deadly physical force against McWillis when faced with McWillis’s either threatened or actual use of a mop handle” … . Our law has “never required that an actor’s belief as to the intention of another person to inflict serious injury be correct in order for the use of deadly force to be justified, but [it has] uniformly required that the belief comport with an objective notion of reasonableness” … . Thus, the jury could have concluded that defendant’s choice to respond to a swinging plastic mop handle with a loaded and operable gun was not reasonable, especially in light of his prior comments to police about taking the law into his own hands … . People v Valentin, 2017 NY Slip Op 02470, CtApp 3-30-17

 

,

TRIAL COURT CORRECTLY REFUSED TO CHARGE THE JURY ON THE JUSTIFICATION DEFENSE IN THIS ASSAULT CASE.

The Court of Appeals determined the trial court properly refused to charge the jury with the justification defense in this assault case:

Contrary to defendant’s contention, the trial court properly refused to instruct the jury on the defense of justification. Viewing the record in the light most favorable to defendant, as we must … , we conclude there is no reasonable view of the evidence that would have permitted the factfinder to conclude that defendant’s conduct was justified … . That is, we agree with the People that there is no evidence that objectively supports a belief that defendant was in danger of being physically harmed by the victim at the time defendant used force against him … .

Here, after “knocking [the victim] out,” defendant was able to freely and safely walk away from the bodega. Moreover, there simply is no evidence that, once he returned to the bodega, defendant needed to leave that store to strike the victim to defend himself. Even if defendant’s trial testimony establishes that he actually believed that the victim was lying in wait for him with a weapon … , there is no reasonable view of the evidence that “a reasonable person in . . . defendant’s circumstances would have believed” the victim to have threatened him with the imminent use of unlawful physical force … . Put simply, the surveillance footage reflects that defendant’s ambush of the victim with the milk crate cannot be considered self defense. People v Sparks, 2017 NY Slip Op 02469, CtApp 3-30-17

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy