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PLEA TO HINDERING PROSECUTION FOR PROVIDING AND HIDING WEAPON STANDS, DESPITE ACQUITTAL OF THE SHOOTER.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the defendant’s plea to hindering prosecution should stand, in spite of the acquittal in the murder prosecution of the codefendant whose weapon defendant provided and subsequently hid:

Defendant … challenges the denial of his motion to withdraw his guilty plea to one count of hindering prosecution in the second degree … . The courts below properly rejected defendant’s claims that his plea is constitutionally infirm and that his codefendant’s acquittal of the underlying felony renders defendant innocent. Neither claim is supported by existing precedent, and his innocence theory is counter to this Court’s holdings in People v Chico (90 NY2d 585 [1997]), People v O’Toole (22 NY3d 335 [2013]), and People v Berkowitz (50 NY2d 333 [1980]). * * *

The logical basis for rejecting defendant’s proposed rule — an assisted person’s acquittal forecloses any finding of a defendant’s criminal liability for hindering prosecution — is rooted in the nature of the crime itself. The intended goal of hindering prosecution is the assisted person’s evasion of criminal liability for the underlying felony. The more effective a defendant’s attempts to obstruct law enforcement, the more likely the assisted person will escape prosecution or be acquitted. Defendant’s rule would have the perverse result of treating as innocent a defendant who stymies an investigation, hides evidence — as in this case — or otherwise sabotages the prosecution, because those efforts lead to the assisted person’s acquittal. People v Fisher, 2017 NY Slip Op 01143, CtApp 2-14-17

 

CRIMINAL LAW (PLEA TO HINDERING PROSECUTION FOR PROVIDING AND HIDING WEAPON STANDS, DESPITE ACQUITTAL OF THE SHOOTER)/HINDERING PROSECUTION (PLEA TO HINDERING PROSECUTION FOR PROVIDING AND HIDING WEAPON STANDS, DESPITE ACQUITTAL OF THE SHOOTER)

NO PRETRIAL NOTICE OF IDENTIFICATION TESTIMONY BY A POLICE OFFICER, CONVICTION REVERSED.

The Fourth Department, reversing defendant’s conviction, determined the identification testimony of a police officer should not have been admitted because pretrial notice of the identification had not been provided to the defendant:

We agree with defendant … that the court erred in permitting the officer to identify defendant as the person in the left rear seat of the vehicle in the absence of a notice pursuant to CPL 710.30 (1) (b). We therefore reverse the judgment and grant that part of the omnibus motion seeking preclusion of that testimony on the ground that the People failed to serve a notice pursuant to CPL 710.30 (1) (b). The prosecutor advised the court and defense counsel after jury selection that the officer would identify defendant as the left rear passenger. Defendant objected and the court conducted a hearing, over defendant’s objection, and determined that the officer’s identification of defendant by means of a single photo approximately two hours after the incident was merely confirmatory and thus that no notice was required pursuant to CPL 710.30 (1) (b).

The exception to the requirement to provide notice pursuant to CPL 710.30 “carries significant consequences” … , and the Court of Appeals has “consistently held that police identifications do not enjoy any exemption from the statutory notice and hearing requirements” … . Unlike the buy-and-bust scenario, where the police participant is focused on the face-to-face contact with defendant with the goal of identifying him or her when he or she is picked up by a back up unit … , here, the officer was standing by the vehicle for approximately three minutes while he was engaged with all of the occupants of the vehicle. Thus, “we cannot conclude that the circumstances of [the officer’s] initial viewing were such that, as a matter of law, the subsequent identification could not have been the product of undue suggestiveness” … . Indeed, “the statute contemplates pretrial resolution of the admissibility of identification testimony’ ” … , and “[t]o conclude otherwise directly contravenes the simple procedure that has been mandated by the Legislature and would permit the People to avoid their statutory obligation merely because a police officer’s initial viewing of a suspect and a subsequent identification might be temporally related” … . People v Clay, 2017 NY Slip Op 01074, 4th Dept 2-10-17

 

CRIMINAL LAW (NO PRETRIAL NOTICE OF IDENTIFICATION TESTIMONY BY A POLICE OFFICER, CONVICTON REVERSED)/IDENTIFICATION (CRIMINAL LAW, NO PRETRIAL NOTICE OF IDENTIFICATION TESTIMONY BY A POLICE OFFICER, CONVICTON REVERSED)

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AFTER APPEAL AND REMITTAL, DEFENDANT WAS ENTITLED TO PUT ON A DEFENSE AFTER THE MOTION FOR A TRIAL ORDER OF DISMISSAL WAS DENIED; PRIOR TO THE APPEAL THE VERDICT HAD BEEN PREMATURELY ANNOUNCED WITHOUT ANY RULING ON THE TRIAL ORDER OF DISMISSAL MOTION.

The Fourth Department determined defendant was entitled to the opportunity to present a defense after the motion for a trial order of dismissal was denied:

When the appeal was previously before us, we held the case, reserved decision, and remitted the matter to County Court for a ruling on the motion for a trial order of dismissal “following such further proceedings as may be necessary” … . Upon remittal, the court … denied the motion … . … [T]he court did not afford defendant the opportunity to present a defense, notwithstanding that defendant had not rested and the proof was not closed. Contrary to the court’s conclusion, the fact that we did not set aside its premature verdict [the motion for a trial order of dismissal had not been ruled on] when the appeal was previously before us did not preclude it from considering further proof or making new factual determinations … . We therefore hold the case, reserve decision, and remit the matter to County Court to afford defendant the opportunity to present a defense. People v White, 2017 NY Slip Op 01058, 4th Dept 2-10-17

CRIMINAL LAW (AFTER APPEAL AND REMITTAL, DEFENDANT WAS ENTITLED TO PUT ON A DEFENSE AFTER THE MOTION FOR TRIAL ORDER OF DISMISSAL WAS DENIED, PRIOR TO THE APPEAL THE VERDICT HAD BEEN PREMATURELY ANNOUNCED WITHOUT ANY RULING ON THE TRIAL ORDER OF DISMISSAL MOTION)/TRIAL ORDER OF DISMISSAL, MOTION FOR AFTER APPEAL AND REMITTAL, DEFENDANT WAS ENTITLED TO PUT ON A DEFENSE AFTER MOTION FOR TRIAL ORDER OF DISMISSAL DENIED, PRIOR TO THE APPEAL THE VERDICT HAD BEEN PREMATURELY ANNOUNCED WITHOUT ANY RULING ON THE TRIAL ORDER OF DISMISSAL MOTION)/APPEALS (CRIMINAL LAW, AFTER APPEAL AND REMITTAL, DEFENDANT WAS ENTITLED TO PUT ON A DEFENSE AFTER THE MOTION FOR TRIAL ORDER OF DISMISSAL WAS DENIED, PRIOR TO THE APPEAL THE VERDICT HAD BEEN PREMATURELY ANNOUNCED WITHOUT ANY RULING ON THE TRIAL ORDER OF DISMISSAL MOTION)

CROSSING THE CENTER LINE AND TRAVELING IN THE ONCOMING LANE PROVIDED PROBABLE CAUSE FOR THE VEHICLE STOP, GRANT OF MOTION TO SUPPRESS REVERSED.

The Fourth Department, reversing County Court, determined there was probable cause for the stop in this DWI case. Defendant was observed the deputy driving in the oncoming traffic lane for two tenths of a mile:

We agree with the People that the stop was based on probable cause and thus that County Court erred in granting that part of defendant’s motion seeking suppression. The arresting deputy testified at the Dunaway hearing that he personally observed defendant’s vehicle cross the center line and proceed into the lane for oncoming traffic. The vehicle remained in that lane for approximately two-tenths of a mile, in violation of Vehicle and Traffic Law § 1120 (a). Thus, the deputy, having personally observed the violation, had probable cause to stop the vehicle … . Once the deputy effectuated the stop, he noticed that defendant’s eyes were watery and bloodshot, and he smelled the strong odor of alcohol on her breath. He conducted a series of field sobriety tests, all of which defendant failed. Thus, the deputy had probable cause to arrest defendant for driving while intoxicated ,,, , People v Lewis, 2017 NY Slip Op 01059, 4th Dept 2-10-17

CRIMINAL LAW (CROSSING THE CENTER LINE AND TRAVELING IN THE ONCOMING LANE PROVIDED PROBABLE CAUSE FOR THE VEHICLE STOP, GRANT OF MOTION TO SUPPRESS REVERSED)/VEHICLE STOPS (CROSSING THE CENTER LINE AND TRAVELING IN THE ONCOMING LANE PROVIDED PROBABLE CAUSE FOR THE VEHICLE STOP, GRANT OF MOTION TO SUPPRESS REVERSED)

JUDGE DID NOT PUT ON THE RECORD THE REASONS FOR DENIAL OF YOUTHFUL OFFENDER STATUS, CASE REMITTED.

The Fourth Department remitted the case to Supreme Court because the reasons for denial of youthful offender status were not put on the record:

Where, as here, “a defendant has been convicted of an armed felony or an enumerated sex offense pursuant to CPL 720.10 (2) (a) (ii) or (iii), and the only barrier to his or her youthful offender eligibility is that conviction, the court is required to determine on the record whether the defendant is an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10 (3). The court must make such a determination on the record even where [the] defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request’ pursuant to a plea bargain . . . If the court determines, in its discretion, that neither of the CPL 720.10 (3) factors exist and states the reasons for that determination on the record, no further determination by the court is required. If, however, the court determines that one or more of the CPL 720.10 (3) factors are present, and the defendant is therefore an eligible youth, the court then must determine whether or not the eligible youth is a youthful offender’ ” … . People v Dukes, 2017 NY Slip Op 01105, 4th Dept 2-10-17

CRIMINAL LAW (JUDGE DID NOT PUT ON THE RECORD THE REASONS FOR DENIAL OF YOUTHFUL OFFENDER STATUS, CASE REMITTED)/YOUTHFUL OFFENDER (JUDGE DID NOT PUT ON THE RECORD THE REASONS FOR DENIAL OF YOUTHFUL OFFENDER STATUS, CASE REMITTED)

LATE REQUEST TO EXERCISE A PEREMPTORY CHALLENGE TO A JUROR SHOULD NOT HAVE BEEN DENIED, CONVICTION REVERSED.

The Fourth Department, reversing defendant’s conviction, determined defense counsel’s late request to exercise a peremptory challenge to a juror should not have been denied:

Here, defense counsel momentarily lost count of the number of jurors who had been selected. As a result, defense counsel declined to exercise a peremptory challenge to prospective juror 21. When informed that prospective juror 21 was the 12th juror seated, defense counsel immediately asked the court to allow defendant to exercise his last peremptory challenge to that juror. The jury had not yet been sworn, the panel from which the alternates would be selected had not yet been called, and prospective juror 21 had not yet been informed that he had been selected. Furthermore, the People expressly declined to object to the request. Under the circumstances of this case, we conclude that the court abused its discretion in denying defendant’s request. Indeed, ” we can detect no discernable interference or undue delay caused by [defense counsel’s] momentary oversight . . . that would justify [the court’s] hasty refusal to entertain [the] challenge’ ” … . Such an error cannot be deemed harmless … . People v Scerbo, 2017 NY Slip Op 01073, 4th Dept 2-10-17

CRIMINAL LAW (LATE REQUEST TO EXERCISE A PEREMPTORY CHALLENGE TO A JUROR SHOULD NOT HAVE BEEN DENIED, CONVICTION REVERSED)/JURORS (CRIMINAL LAW, LATE REQUEST TO EXERCISE A PEREMPTORY CHALLENGE TO A JUROR SHOULD NOT HAVE BEEN DENIED, CONVICTION REVERSED)/PEREMPTORY CHALLENGE CRIMINAL LAW, JURORS, (LATE REQUEST TO EXERCISE A PEREMPTORY CHALLENGE TO A JUROR SHOULD NOT HAVE BEEN DENIED, CONVICTION REVERSED)

PLACE OF BUSINESS EXCEPTION TO CRIMINAL POSSESSION OF A WEAPON DID NOT APPLY WHERE DEFENDANT’S EMPLOYER PROHIBITED POSSESSION OF FIREARMS IN THE WORKPLACE.

The Fourth Department, over a dissent, determined defendant was not entitled to the exception to the criminal possession of a weapon statute for possession in a person’s “place of business” (reducing the offense to a misdemeanor). Here defendant brought a firearm to work at McDonald’s and shot himself in the leg. The court reasoned the “place of business” exception did not apply because McDonald’s prohibited its employees from carrying firearms:

Although the “place of business” exception is not statutorily defined, it has been “construed narrowly by the courts in an effort to balance the State’s strong policy to severely restrict possession of any firearm’ . . . with its policy to treat with leniency persons attempting to protect certain areas in which they have a possessory interest and to which members of the public have limited access” … . Inasmuch as the evidence at trial established that defendant was prohibited from bringing a gun to work, we conclude that to permit defendant to be subjected only to a misdemeanor “would certainly controvert the meaning and intent of the statute” … . People v Wallace, 2017 NY Slip Op 01071, 4th Dept 2-10-17

CRIMINAL LAW (PLACE OF BUSINESS EXCEPTION TO CRIMINAL POSSESSION OF A WEAPON DID NOT APPLY WHERE DEFENDANT’S EMPLOYER PROHIBITED POSSESSION OF FIREARMS IN THE WORKPLACE)/WEAPONS, CRIMINAL POSSESSION (PLACE OF BUSINESS EXCEPTION TO CRIMINAL POSSESSION OF A WEAPON DID NOT APPLY WHERE DEFENDANT’S EMPLOYER PROHIBITED POSSESSION OF FIREARMS IN THE WORKPLACE)

DEFENDANT SHOULD HAVE BEEN ALLOWED TO TESTIFY BEFORE THE GRAND JURY EVEN THOUGH THE REQUEST WAS MADE AFTER THE GRAND JURY HAD VOTED TO INDICT.

The Fourth Department, reversing County Court, determined defendant was entitled to testify before the grand jury, even though his request was received by the district attorney after deadlines had passed and after the grand jury had voted to indictment (but before filing of the indictment):

As the Court of Appeals has noted, a defendant has a right “under CPL 190.50 (5) (a) to provide notice and, therefore, the concomitant right to give testimony even perhaps after an indictment has been voted but before it is filed” … . Where, as here, defendant’s request to testify is received after the grand jury has voted, but before the filing of the indictment, defendant is entitled to a reopening of the proceeding to enable the grand jury to hear defendant’s testimony and to revote the case, if the grand jury be so advised … . People v White, 2017 NY Slip Op 01070, 4th Dept 2-10-17

CRIMINAL LAW (DEFENDANT SHOULD HAVE BEEN ALLOWED TO TESTIFY BEFORE THE GRAND JURY EVEN THOUGH THE REQUEST WAS MADE AFTER THE GRAND JURY HAD VOTED TO INDICT)/GRAND JURY (DEFENDANT SHOULD HAVE BEEN ALLOWED TO TESTIFY BEFORE THE GRAND JURY EVEN THOUGH THE REQUEST WAS MADE AFTER THE GRAND JURY HAD VOTED TO INDICT)

INSUFFICIENT PROOF GUNSHOT CAUSED SERIOUS PHYSICAL INJURY, ASSAULT FIRST CONVICTION REDUCED TO ASSAULT SECOND.

The Fourth Department reduced defendant’s conviction from assault first to assault second based upon insufficient proof of serious physical injury. The victim was shot in the leg:

Although the victim displayed to the jury scars on his leg caused by his gunshot wounds, “the record does not contain any pictures or descriptions of what the jury saw so as to prove that these scars constitute serious or protracted disfigurement” … . Furthermore, although the victim testified that he “feel[s] pain in [his] leg” in cold weather, we conclude that such testimony does not constitute evidence of persistent pain so severe as to cause “protracted impairment of health” … . People v Romero, 2017 NY Slip Op 01069, 4th Dept 2-10-17

CRIMINAL LAW (INSUFFICIENT PROOF GUNSHOT CAUSED SERIOUS PHYSICAL INJURY, ASSAULT FIRST CONVICTION REDUCED TO ASSAULT SECOND)/ASSAULT (CRIMINAL LAW, INSUFFICIENT PROOF GUNSHOT CAUSED SERIOUS PHYSICAL INJURY, ASSAULT FIRST CONVICTION REDUCED TO ASSAULT SECOND)/SERIOUS PHYSICAL INJURY (CRIMINAL LAW, ASSSAULT, INSUFFICIENT PROOF GUNSHOT CAUSED SERIOUS PHYSICAL INJURY, ASSAULT FIRST CONVICTION REDUCED TO ASSAULT SECOND)

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ELEMENTS OF OFFICIAL MISCONDUCT, MALFEASANCE AND NONFEASANCE, EXPLAINED; COCONSPIRATOR STATEMENTS MADE BEFORE A DEFENDANT JOINS A CONSPIRACY AND AFTER A DEFENDANT LEAVES A CONSPIRACY ARE ADMISSIBLE.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, affirmed the conviction of a Nassau County Police Department detective on two counts of official misconduct and conspiracy. The opinion is too detailed to fairly summarize here. The charges stemmed from allegations defendant participated in an attempt to prevent the arrest of the son of a prominent supporter of the police department. It was alleged the supporter's son stole electronic equipment from his high school. Despite many attempts by members of the police department to have the high school withdraw the charges, the school refused. The opinion explains in detail the proof requirements for official misconduct, based upon malfeasance and nonfeasance. In a question of first impression, the Court of Appeals ruled that statements made by coconspirators before a defendant joins the conspiracy and after a defendant leaves the conspiracy are admissible:

We now hold that when a conspirator subsequently joins an ongoing conspiracy, any previous statements made by his or her coconspirators in furtherance of the conspiracy are admissible against the conspirator pursuant to the coconspirator exception to the hearsay rule. …

We further conclude, in line with federal case law, that statements made after a conspirator's alleged active involvement in the conspiracy has ceased, but the conspiracy continues, are admissible unless this conspirator has unequivocally communicated his or her withdrawal from the conspiracy to the coconspirators … . People v Flanagan, 2017 NY Slip Op 01018. CtApp 2-9-17

CRIMINAL LAW (ELEMENTS OF OFFICIAL MISCONDUCT, MALFEASANCE AND NONFEASANCE, EXPLAINED, COCONSPIRATOR STATEMENTS MADE BEFORE A DEFENDANT JOINS A CONSPIRACY AND AFTER A DEFENDANT LEAVES A CONSPIRACY ARE ADMISSIBLE)/EVIDENCE (CRIMINAL LAW, COCONSPIRATOR STATEMENTS MADE BEFORE A DEFENDANT JOINS A CONSPIRACY AND AFTER A DEFENDANT LEAVES A CONSPIRACY ARE ADMISSIBLE)/CONSPIRACY (CRIMINAL LAW, COCONSPIRATOR STATEMENTS MADE BEFORE A DEFENDANT JOINS A CONSPIRACY AND AFTER A DEFENDANT LEAVES A CONSPIRACY ARE ADMISSIBLE)/OFFICIAL MISCONDUCT (ELEMENTS OF OFFICIAL MISCONDUCT, MALFEASANCE AND NONFEASANCE, EXPLAINED)

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