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DEFENDANT, WHO WAS CONVICTED IN VIRGINIA OF THE MURDER OF A 15-YEAR-OLD WITH NO SEXUAL COMPONENT, AND WHO WAS REQUIRED TO REGISTER AS A SEX OFFENDER IN VIRGINIA, NEED NOT REGISTER AS A SEX OFFENDER IN NEW YORK.

The First Department, in a full-fledged opinion by Justice Andrias, determined requiring defendant to register as a sex offender in New York based upon the murder of a 15-year-old in Virginia violated defendant’s right to substantive due process. Defendant shot and killed his 15-year-old half sister when he was 19. There was no sexual component to the crime. Upon his release from prison after 25 years, defendant, under Virginia law, was required to register as a sex offender (based on the age of the victim). New York has no similar registration requirement. When defendant relocated to New York he was assessed a level three sex offender in a SORA proceeding:

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…[T]he connection between defendant’s crime and the legislative purpose behind SORA is too attenuated to support finding a legitimate governmental interest in applying Correction Law § 168-a(2)(d)(ii) to defendant. The record does not establish a correlation between the murder of a victim under 15 years of age and the propensity to commit sexual offenses. Thus, the legislative purpose of protecting the public from sex offenders is not served by requiring defendant to register as a sex offender in New York pursuant to section 168-a(2)(d)(ii) solely because he is obligated to do so under a broader Virginia statute, which designates the murder of a person under the age of 15, without a sexual component, as an offense subject to registration in a registry that encompasses both sex crimes and crimes against minors.

Requiring such individuals to register as sex offenders in New York also diminishes the registry’s usefulness by including offenders who bear no meaningful relationship to SORA’s legislative purpose. There is no evidence to suggest that one who commits homicide of a minor in Virginia is more likely to commit a sex offense than one who commits homicide of a minor in New York. The statute also fails to consider the harm caused to the individual who is forced to register, even though he or she has committed a crime that has no sexual component. Being labeled as a sex offender does far more than impose a stigma to one’s reputation. It often results in the offender being subjected to social ostracism and abuse, and impedes the person’s ability to access schooling, employment, housing, and many other areas. People v Diaz, 2017 NY Slip Op 02915, 1st Dept 4-13-17

 

CRIMINAL LAW (DEFENDANT, WHO WAS CONVICTED IN VIRGINIA OF THE MURDER OF A 15-YEAR-OLD WITH NO SEXUAL COMPONENT, AND WHO WAS REQUIRED TO REGISTER AS A SEX OFFENDER IN VIRGINIA, NEED NOT REGISTER AS A SEX OFFENDER IN NEW YORK)/SEX OFFENDER REGISTRATION ACT (SORA)  (DEFENDANT, WHO WAS CONVICTED IN VIRGINIA OF THE MURDER OF A 15-YEAR-OLD WITH NO SEXUAL COMPONENT, AND WHO WAS REQUIRED TO REGISTER AS A SEX OFFENDER IN VIRGINIA, NEED NOT REGISTER AS A SEX OFFENDER IN NEW YORK)

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COUNTY COURT DID NOT HAVE AUTHORITY TO ALLOW AMENDMENT OF CONSPIRACY COUNT BY ADDING AN OVERT ACT, ISSUE HEARD ON APPEAL DESPITE LACK OF PRESERVATION AND FAILURE TO RAISE ON APPEAL.

The Third Department determined County Count did not have the authority to amend a defective conspiracy count by allowing the People to add an overt act. The court entertained the issue even though it was not preserved and it was not raised on appeal. The Third Department had made the same ruling in the codefendant’s (Placido’s) appeal:

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In connection with Placido’s appeal, this Court has held that count 2 of the indictment was jurisdictionally defective and that County Court lacked the authority to grant the People’s motion to amend that count … ). In light of the fact that count 2 of the indictment was identical in respect to Placido and defendant, it necessarily follows that this Court’s holding in People v Placido … applies with equal force to defendant. Accordingly, notwithstanding the fact that defendant did not raise this issue before County Court and does not raise it on appeal, we exercise our interest of justice jurisdiction and reverse defendant’s conviction for conspiracy in the fourth degree. People v Deleon, 2017 NY Slip Op 02848, 3rd Dept 4-13-17

CRIMINAL LAW (COUNTY COURT DID NOT HAVE AUTHORITY TO ALLOW AMENDMENT OF CONSPIRACY COUNT BY ADDING AN OVERT ACT, ISSUE HEARD ON APPEAL DESPITE LACK OF PRESERVATION AND FAILURE TO RAISE ON APPEAL)/APPEALS (CRIMINAL LAW, COUNTY COURT DID NOT HAVE AUTHORITY TO ALLOW AMENDMENT OF CONSPIRACY COUNT BY ADDING AN OVERT ACT, ISSUE HEARD ON APPEAL DESPITE LACK OF PRESERVATION AND FAILURE TO RAISE ON APPEAL)/INDICTMENTS (COUNTY COURT DID NOT HAVE AUTHORITY TO ALLOW AMENDMENT OF CONSPIRACY COUNT BY ADDING AN OVERT ACT, ISSUE HEARD ON APPEAL DESPITE LACK OF PRESERVATION AND FAILURE TO RAISE ON APPEAL)

STATUTE PROHIBITING CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF TERRORISM NOT PREEMPTED BY FEDERAL LAW AND NOT UNCONSTITUTIONAL.

The First Department determined the statute prohibiting criminal possession of a weapon as an act of terrorism was not preempted by federal law and was not unconstitutional:

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Defendant has not met his burden of showing a “clear and unambiguous” congressional intent to preempt state legislation in the field of counterterrorism … . The statute is not expressly preempted by 18 USC § 2338, which states that federal district courts have exclusive jurisdiction over actions brought under 18 USC part I, chapter 113B. Although Penal Law § 490.25(1) uses language substantially identical to the federal definition of “domestic terrorism” (18 USC § 2331[5]), the Penal Law provision is a separate statute limited to the commission of enumerated state offenses.

Defendant also fails to establish implied federal preemption of state counterterrorism laws. Since a local community will typically be the most directly affected by a terrorist attack there … , the “federal interest” in counterterrorism is not “so dominant” as to “preclude” local enforcement of state laws against attempts to commit terrorist attacks … . Moreover, Congress has not enacted “a framework of regulation so pervasive” as to leave “no room for the States to supplement it” … . This is evident from the strong federal policy of cooperating with state and local governments to combat terrorism … .

The statute is not unconstitutionally vague in proscribing the “intent to intimidate or coerce a civilian population” … , in light of the Court of Appeals’ construction of the emphasized phrase in People v Morales (20 NY3d 240, 247-249 [2012]). Defendant’s arguments that the statute is unconstitutionally vague in using the phrase “unit of government” among other terms are likewise unpersuasive … .

We also reject defendant’s challenges to the statute under the Free Speech Clause of the First Amendment and article I, § 8 of the New York Constitution. We are unpersuaded by defendant’s argument that the statute amounts to an impermissible content-based restriction of speech by increasing the felony level and sentencing range imposed on those who commit an enumerated criminal offense with the “intent to intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination or kidnapping” … . Such heightened punishment for defendant’s admitted intent of, among other things, influencing the United States government’s foreign policy by building and possessing a pipe bomb does not infringe his right to free speech … . Moreover, defendant’s argument that the statute is overbroad in chilling political speech is unavailing, since any overbreadth is not “substantial . . . in relation to the statute’s plainly legitimate sweep” … of prohibiting criminal conduct perpetrated with an intent commonly associated with terrorism … . People v Pimentel, 2017 NY Slip Op 02891, 1st Dept 4-13-17

 

CRIMINAL LAW (STATUTE PROHIBITING CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF TERRORISM NOT PREEMPTED BY FEDERAL LAW AND NOT UNCONSTITUTIONAL)/TERRORISM, CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF (STATUTE PROHIBITING CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF TERRORISM NOT PREEMPTED BY FEDERAL LAW AND NOT UNCONSTITUTIONAL)/CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF TERRORISM  (STATUTE PROHIBITING CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF TERRORISM NOT PREEMPTED BY FEDERAL LAW AND NOT UNCONSTITUTIONAL)

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SEX OFFENDERS HAVE A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN MENTAL HYGIENE LAW ARTICLE 10 PROCEEDINGS.

The Second Department determined a respondent in a Mental Hygiene Law article 10 proceeding (re: civil commitment of sex offenders) has a right to effective assistance of counsel (not usually the case in a civil proceeding). Respondent’s writ of error coram nobis, alleging ineffective assistance, however, was denied on the merits:

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Generally, in the context of civil litigation, an attorney’s errors or omissions are binding on the client and a claim of ineffective assistance of counsel will not be entertained in the absence of extraordinary circumstances … . However, a respondent in a Mental Hygiene Law article 10 proceeding has a statutory right to counsel …  and, as in proceedings pursuant to the Sex Offender Registration Act (Correction Law art 6-C) and certain Family Court proceedings, the consequences of an unfavorable determination in these particular civil proceedings are uniquely severe … . Indeed, a respondent in a Mental Hygiene Law article 10 proceeding “arguably faces an even more severe threat to his or her liberty than that faced by a criminal defendant. When successfully litigated by the State, such a proceeding can result in civil confinement, after a respondent is released from prison, which is involuntary and indefinite, and can last the remainder of a respondent’s life” … . Further, a respondent’s statutory right to counsel in a Mental Hygiene Law article 10 proceeding would be eviscerated if counsel were ineffective… .  Thus, a claim of ineffective assistance of counsel may be raised in a Mental Hygiene Law article 10 proceeding … . Matter of State of New York v Wayne J., 2017 NY Slip Op 02798, 2nd Dept 4-12-17

MENTAL HYGIENE LAW (SEX OFFENDERS HAVE A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN MENTAL HYGIENE LAW ARTICLE 10 PROCEEDINGS)/ATTORNEYS (MENTAL HYGIENE LAW, SEX OFFENDERS HAVE A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN MENTAL HYGIENE LAW ARTICLE 10 PROCEEDINGS)/SEX OFFENDERS (MENTAL HYGIENE LAW, SEX OFFENDERS HAVE A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN MENTAL HYGIENE LAW ARTICLE 10 PROCEEDINGS)

IDENTITY THEFT STATUTE AMBIGUOUS, THE ASSUMPTION OF THE VICTIM’S IDENTITY IS AN ESSENTIAL ELEMENT OF THE OFFENSE, HERE DEFENDANT USED HER OWN NAME, CONVICTION REVERSED.

The First Department, in a full-fledged opinion by Justice Acosta, determined defendant’s conviction of identity theft first degree must be vacated. Defendant tried to cash a check which was not actually from the bank identified on the face of the check. The People argued defendant was assuming the identity of the bank, which is a “person” under the law. The First Department, disagreeing with the 4th Department, found that the identity theft statute was ambiguous and the rule of lenity required the statute be interpreted to require proof of the assumption of the victim’s identity as an element of the offense:

… [T]he People failed to prove beyond a reasonable doubt that defendant assumed the identity of another person. The People argue that defendant assumed the identity of H & R Block Bank when she attempted to cash a check that contained the bank’s personal identifying information (the company’s name, address, account number, and routing number). However, the People did not demonstrate that the result of defendant’s use of that information was that she assumed the bank’s identity. To be sure, defendant presented a check containing the personal identifying information of H & R Block. However, the check was made payable to defendant, in her real name. Defendant presented her own identification establishing her identity as Blondine Destin, and signed her own name on the back of the check when the bank teller asked her to endorse it. None of the TD Bank employees were under the impression that defendant was anyone other than herself … . Thus … the evidence was legally insufficient to establish that defendant committed identity theft, because she did not assume the identity of the victim … . People v Destin, 2017 NY Slip Op 02767, 1st Dept, 4-11-17

CRIMINAL LAW (IDENTITY THEFT STATUTE AMBIGUOUS, THE ASSUMPTION OF THE VICTIM’S IDENTITY IS AN ESSENTIAL ELEMENT OF THE OFFENSE, HERE DEFENDANT USED HER OWN NAME, CONVICTION REVERSED)/IDENTITY THEFT (IDENTITY THEFT STATUTE AMBIGUOUS, THE ASSUMPTION OF THE VICTIM’S IDENTITY IS AN ESSENTIAL ELEMENT OF THE OFFENSE, HERE DEFENDANT USED HER OWN NAME, CONVICTION REVERSED)

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DEFENDANT ARGUED HAD SHE BEEN INFORMED DEPORTATION WAS NOT AN ISSUE SHE WOULD HAVE PLED GUILTY AND THEREBY AVOIDED THE LONGER SENTENCE IMPOSED AFTER TRIAL, HEARING ON MOTION TO SET ASIDE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD HAVE BEEN HELD.

The Third Department determined a hearing should have been held on defendant’s motion to set aside her conviction after trial on ineffective assistance grounds. Defendant argued that had she known she could not be deported based upon a guilty plea she would not have gone to trial and thereby been subject to a longer sentence:

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Defendant maintains that, had counsel properly determined her immigration status during the course of her representation, she would likely have entered a guilty plea. She would have thus been exposed to less prison time than she received after trial, much like that of her codefendant. We note that miscommunications in matters such as this have provided a basis for finding that a defendant was denied the effective assistance of counsel … . People v Monterio, 2017 NY Slip Op 02693, 3rd Dept 4-6-17

CRIMINAL LAW (DEFENDANT ARGUED HAD SHE BEEN INFORMED DEPORTATION WAS NOT AN ISSUE SHE WOULD HAVE PLED GUILTY AND THEREBY AVOIDED THE LONGER SENTENCE IMPOSED AFTER TRIAL, HEARING ON MOTION TO SET ASIDE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD HAVE BEEN HELD)/ATTORNEYS (CRIMINAL LAW, DEFENDANT ARGUED HAD SHE BEEN INFORMED DEPORTATION WAS NOT AN ISSUE SHE WOULD HAVE PLED GUILTY AND THEREBY AVOIDED THE LONGER SENTENCE IMPOSED AFTER TRIAL, HEARING ON MOTION TO SET ASIDE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD HAVE BEEN HELD)/INEFFECTIVE ASSISTANCE (DEFENDANT ARGUED HAD SHE BEEN INFORMED DEPORTATION WAS NOT AN ISSUE SHE WOULD HAVE PLED GUILTY AND THEREBY AVOIDED THE LONGER SENTENCE IMPOSED AFTER TRIAL, HEARING ON MOTION TO SET ASIDE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD HAVE BEEN HELD)/SET ASIDE CONVICTION, MOTION TO  (DEFENDANT ARGUED HAD SHE BEEN INFORMED DEPORTATION WAS NOT AN ISSUE SHE WOULD HAVE PLED GUILTY AND THEREBY AVOIDED THE LONGER SENTENCE IMPOSED AFTER TRIAL, HEARING ON MOTION TO SET ASIDE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD HAVE BEEN HELD)

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COUNTY COURT DID NOT HAVE THE AUTHORITY TO ALLOW PEOPLE TO AMEND A DEFECTIVE CONSPIRACY COUNT BY ADDING AN ALLEGED OVERT ACT.

The Third Department determined County Court should not have allowed the People to amend a conspiracy count which did not charge the commission of an overt act:

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Given that “[a]n indictment may not be amended in any respect . . . for the purpose of curing: (a) [a] failure . . . to charge or state an offense; or (b) “[l]egal insufficiency of the factual allegations” (CPL 200.70 [2]), County Court had no authority to grant the People’s motion to amend the indictment to allege an overt act. Moreover, the People’s contention that defendant consented to the amendment is directly contradicted by the fact that defendant specifically argued that the proper remedy for the People’s failure was dismissal of count 2 of the indictment. Accordingly, as count 2 was jurisdictionally defective and not subject to amendment, we reverse the conviction for conspiracy in the fourth degree and the sentence imposed thereon … . People v Placido, 2017 NY Slip Op 02694, 3rd Dept 4-6-17

CRIMINAL LAW (COUNTY COURT DID NOT HAVE THE AUTHORITY TO ALLOW PEOPLE TO AMEND A DEFECTIVE CONSPIRACY COUNT BY ADDING AN ALLEGED OVERT ACT)/INDICTMENT, AMENDMENT OF (COUNTY COURT DID NOT HAVE THE AUTHORITY TO ALLOW PEOPLE TO AMEND A DEFECTIVE CONSPIRACY COUNT BY ADDING AN ALLEGED OVERT ACT)/CONSPIRACY (CRIMINAL LAW, COUNTY COURT DID NOT HAVE THE AUTHORITY TO ALLOW PEOPLE TO AMEND A DEFECTIVE CONSPIRACY COUNT BY ADDING AN ALLEGED OVERT ACT)

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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:

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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:

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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 … . * * *

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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)

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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:

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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)

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