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EVIDENCE OF KNOWING POSSESSION OF A CONTROLLED SUBSTANCE WAS SUFFICIENT TO SUPPORT AN INDICTMENT, SUPREME COURT REVERSED.

The Second Department, reversing Supreme Court, determined the evidence before the grand jury was sufficient to demonstrate defendant’s knowledge he possessed cocaine. The defendant received a package containing cocaine addressed to a name (not his name) he used to sign for it and the package was addressed to a location which was not where defendant resided. The defendant was arrested before the package was opened:

“Courts assessing the sufficiency of the evidence before a grand jury must evaluate whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted—and deferring all questions as to the weight or quality of the evidence—would warrant conviction” … . ” Legally sufficient evidence’ means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof” … . ” In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt'” … . “The reviewing court’s inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts, supply proof of every element of the charged crimes, and whether the Grand Jury could rationally have drawn the guilty inference. That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the Grand Jury could rationally have drawn the guilty inference” … . People v Jimenez, 2017 NY Slip Op 01566, 2nd Dept 3-1-17

CRIMINAL LAW(EVIDENCE OF KNOWING POSSESSION OF A CONTROLLED SUBSTANCE WAS SUFFICIENT TO SUPPORT AN INDICTMENT, SUPREME COURT REVERSED)/EVIDENCE (CRIMINAL LAW, EVIDENCE OF KNOWING POSSESSION OF A CONTROLLED SUBSTANCE WAS SUFFICIENT TO SUPPORT AN INDICTMENT, SUPREME COURT REVERSED)/GRAND JURIES (EVIDENCE OF KNOWING POSSESSION OF A CONTROLLED SUBSTANCE WAS SUFFICIENT TO SUPPORT AN INDICTMENT, SUPREME COURT REVERSED)/CONTROLLED SUBSTANCE, POSSESSION OF (EVIDENCE OF KNOWING POSSESSION OF A CONTROLLED SUBSTANCE WAS SUFFICIENT TO SUPPORT AN INDICTMENT, SUPREME COURT REVERSED)

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UNWARNED STATEMENT PRECEDED MIRANDIZED STATEMENT BY TEN MINUTES, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.

The Second Department determined defendant’s motion to suppress his statements should have been granted:

At the suppression hearing, a police detective testified that while the defendant was in custody, he administered Miranda warnings … and took the defendant’s written statement. On cross-examination, the detective admitted that 10 minutes prior to taking the defendant’s Mirandized written statement, he questioned the defendant without administering Miranda warnings. The written statement itself refers to incriminating statements made by the defendant during the earlier, pre-Miranda questioning. The Supreme Court denied suppression.

“[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a single continuous chain of events,’ there is inadequate assurance that the Miranda warnings were effective in protecting a defendant’s rights, and the warned statement must also be suppressed” … . Here, the improper unwarned statements made by the defendant gave rise to a subsequent Mirandized written statement as part of a single continuous chain of events. Accordingly, both the oral statement and the written statement should have been suppressed. People v Ghee, 2017 NY Slip Op 01564, 2nd Dept 3-1-17

 

CRIMINAL LAW (UNWARNED STATEMENT PRECEDED MIRANDIZED STATEMENT BY TEN MINUTES, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)/EVIDENCE (CRIMINAL LAW, UNWARNED STATEMENT PRECEDED MIRANDIZED STATEMENT BY TEN MINUTES, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)/SUPPRESS, MOTION TO (CRIMINAL LAW, STATEMENTS, UNWARNED STATEMENT PRECEDED MIRANDIZED STATEMENT BY TEN MINUTES, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)/STATEMENTS (CRIMINAL LAW, SUPPRESSION, UNWARNED STATEMENT PRECEDED MIRANDIZED STATEMENT BY TEN MINUTES, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)

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A SEXUAL OFFENSE WHICH DEFENDANT ADMITTED COMMITTING BUT WITH WHICH HE WAS NEVER CHARGED SHOULD NOT HAVE BEEN CONSIDERED.

The Third Department determined a sexual offense which defendant admitted committing but with which he was never charged could not be considered in the under risk factor 8:

… [W]e agree with defendant that 10 points were improperly assessed for risk factor 8, his “[a]ge at first sex crime.” The People submitted evidence that the victim had recounted to police that her first sexual contact with defendant had occurred in June 2011, when defendant was 19 years old and she was 13 years old; defendant admitted that this incident had occurred but claimed that the victim had been the aggressor. As defendant pointed out at the SORA hearing, however, he was never charged with or convicted of a crime consisting of that conduct. Under the criminal history section of the RAI, 10 points may be assessed under risk factor 8 where “[t]he offender committed a sex offense, that subsequently resulted in an adjudication or conviction for a sex crime, at age 20 or less” … . The commentary similarly instructs, with regard to risk factor 8, that “criminal convictions [and] youthful offender adjudications  . . . are to be considered in scoring this category, as well as [risk factors] 9 [number and nature of prior crimes] and 10 [recency of prior felony or sex crime]” … . To that end, the commentary specifically indicates that, for purposes of the criminal history section of the RAI, “the term ‘crime’ includes criminal convictions [and] youthful offender adjudications” and that “[c]onvictions for Penal Law offenses and unclassified misdemeanors should be considered” … . The commentary further clarifies that, “[w]here an offender has admitted committing an act of sexual misconduct for which there has been no such judicial determination, it should not be used in scoring his [or her] criminal history” … . …

While proof of the commission of a prior sex crime committed by an offender at age 20 or under that did not result in a conviction or adjudication may be relied upon to argue in favor of an upward departure … , the People did not request this alternative relief from County Court at any point. People v Current, 2017 NY Slip Op 01415, 3rd Dept 2-23-17

CRIMINAL LAW (SORA, A SEXUAL OFFENSE WHICH DEFENDANT ADMITTED COMMITTING BUT WITH WHICH HE WAS NEVER CHARGED SHOULD NOT HAVE BEEN CONSIDERED)/SEX OFFENDER REGISTRATION ACT (SORA) (A SEXUAL OFFENSE WHICH DEFENDANT ADMITTED COMMITTING BUT WITH WHICH HE WAS NEVER CHARGED SHOULD NOT HAVE BEEN CONSIDERED)

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DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED; PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER.

The Third Department, reversing defendant’s conviction, determined the trial judge erred when the full circumstantial evidence jury instruction was not given. There was no direct evidence identifying defendant as the robber of the victim, who was sitting in his car at the time he was robbed. Blood matched to the defendant by DNA evidence was found on the handle of the door of the victim’s car. The Third Department also noted that the prosecutor exceeded the bounds of acceptable commentary during summation when he told the jury the blood on the victim’s car belonged to the robber:

Contrary to the People’s assertion, this was not a case “where both direct and circumstantial evidence [were] employed to demonstrate . . . defendant’s culpability[,] thereby negating the need for the [requested] charge” … . While there indeed is no question — based upon the victim’s testimony and the photographic evidence contained in the record — that the charged crimes did in fact occur, the record makes clear — and the People readily concede — that there was no direct evidence identifying defendant as the perpetrator. In this regard, while the People are correct that a DNA match “can provide strong evidence of a person’s presence at and participation in a criminal act” … , a defendant’s mere presence at the scene of the crime in close temporal proximity to its commission does not establish his or her identity as the perpetrator … . Simply put, where there is no direct evidence linking the defendant to the charged crimes, courts consistently have required that a circumstantial evidence charge be given … . As the People’s proof relative to the identity of the perpetrator here was entirely circumstantial, Supreme Court should have granted defendant’s request to charge the jury accordingly; moreover, as the proof against defendant was less than overwhelming, we cannot deem the court’s failure to grant the requested charge to be harmless error … . People v James, 2017 NY Slip Op 01409, 3rd Dept 2-23-17

CRIMINAL LAW (DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/EVIDENCE (CRIMINAL LAW, DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/ATTORNEYS (CRIMINAL LAW, (DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/PROSECUTORIAL MISCONDUCT (DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/DNA (CRIMINAL LAW, (DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/CIRCUMSTANTIAL EVIDENCE (CRIMINAL LAW,  DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)

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PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT SUBSTANTIALLY WEAKENED BUT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION; DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION.

The Third Department, reversing defendant’s conviction, determined the People should not have been allowed to impeach their own witness (Abellman) with a prior inconsistent statement which did not contradict the People’s theory of prosecution and the trial judge should have instructed the jury on circumstantial evidence:

Abellman indicated in a written statement to investigators and testimony before the grand jury that defendant was his heroin supplier and that defendant’s heroin was stashed at the apartment. Abellman testified at trial, however, that he did not know defendant, had never bought drugs from defendant and did not recall ever having been to the apartment. * * * … [T]he People extensively questioned Abellman regarding his prior statements by asking if he recalled previously saying, among other things, that defendant supplied him with heroin and that he and defendant frequently went to the apartment to bag heroin and cocaine for sale.

While “[e]vidence of a prior contradictory statement may be received for the limited purpose of impeaching [a] witness’s credibility with respect to his or her testimony,” it is inadmissible where “the testimony of the witness ‘does not tend to disprove the position of the party who called him [or her] and elicited [the contradictory] testimony'” … . Abellman’s trial testimony falls into the latter category, as he did not call defendant’s connection to the heroin into question and only maintained that he had no knowledge of whatever connection there might be. This claimed lack of knowledge “merely failed to corroborate or bolster the [People]’s case” and did not affirmatively “contradict or disprove” evidence presented by them … . …

There was direct evidence of defendant’s dominion and control over the apartment [where the herein was found] but, as things ultimately stood, proof of his dominion and control over the heroin and related items was circumstantial. County Court was obliged to, but did not, give a circumstantial evidence charge to the jury under these circumstances … . People v Gaston, 2017 NY Slip Op 01411, 3rd Dept 2-23-17

 

CRIMINAL LAW (PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)/EVIDENCE (CRIMINAL LAW, PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)/PRIOR INCONSISTENT STATEMENT (CRIMINAL LAW, EOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)/CONSTRUCTIVE POSSESSION (PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)/IMPEACHMENT (CRIMINAL LAW, PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)/CIRCUMSTANTIAL EVIDENCE (CRIMINAL LAW, (PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)

UNDER THE FACTS, THE ATTEMPTED KIDNAPPING CONVICTION MERGED WITH THE SEXUAL ABUSE AND ASSAULT CONVICTIONS.

The Third Department, in the interest of justice, determined that the attempted kidnapping conviction merged with the sexual abuse and assault convictions:

The merger doctrine bars convictions for kidnapping “based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them” … . While application of the doctrine is dependent on the particular facts and circumstances of each case, “a kidnapping is generally deemed to merge with another offense . . . ‘where there is minimal asportation immediately preceding’ the other crime or ‘where the restraint and underlying crime are essentially simultaneous'” … .

Here, the victim’s testimony, as well as the surveillance footage, established that defendant immediately began punching the victim upon opening the door to her vehicle and that, after dragging her roughly 58 feet, he continued to punch the victim while forcibly subjecting her to sexual contact. This brutal encounter lasted between three and four minutes. Under these circumstances, because the conduct underlying the charge of attempted kidnapping in the second degree was simultaneous to, and inseparable from, the conduct underlying the charges of sexual abuse in the first degree and assault in the second degree … , we must apply the doctrine of merger, reverse defendant’s conviction of attempted kidnapping in the second degree and dismiss that count of the indictment … . People v Bautista, 2017 NY Slip Op 01410, 3rd Dept 2-23-17

CRIMINAL LAW (UNDER THE FACTS, THE ATTEMPTED KIDNAPPING CONVICTION MERGED WITH THE SEXUAL ABUSE AND ASSAULT CONVICTIONS)/KIDNAPPING (UNDER THE FACTS, THE ATTEMPTED KIDNAPPING CONVICTION MERGED WITH THE SEXUAL ABUSE AND ASSAULT CONVICTIONS)/MERGER (CRIMINAL LAW, UNDER THE FACTS, THE ATTEMPTED KIDNAPPING CONVICTION MERGED WITH THE SEXUAL ABUSE AND ASSAULT CONVICTIONS)

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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, WHETHER THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT ABSENT DEFENSE COUNSEL’S MISTAKES IS NOT THE FOCUS OF THE INEFFECTIVE-ASSISTANCE ANALYSIS.

The First Department, over an extensive two-justice dissent, determined defendant was entitled to a hearing on his motion to set aside the judgment of conviction based upon ineffective assistance of counsel. Defendant alleged that he wanted to testify but didn’t because the Sandoval hearing was never completed and defense counsel never asked that it be completed. Defendant further alleged defense counsel told defendant not to testify and threatened to leave the case if defendant insisted. Defendant also alleged defense counsel was paid to hire an expert on DNA evidence but never did. Defendant submitted expert opinion evidence that cross-examination of the People’s DNA expert could have been more effective had the defense been advised by a defense expert.  The First Department explained that an inquiry into whether a defendant received effective assistance is not an inquiry into whether the outcome of the trial would have been different absent the mistakes by counsel. The only issue is whether defendant received a fair trial:

It is well established that a defendant who is represented by counsel nevertheless retains authority over certain fundamental decisions regarding the case, including the decision whether to testify in his or her behalf … . The decision to testify in one’s behalf is personal and can be waived only by the defendant, not counsel alone … . Defendant’s affidavit submitted with the 440.10 motion made clear that he informed trial counsel that he wished to testify, depending on the outcome of the Sandoval hearing. In light of this affidavit, a hearing is required to more fully explore the circumstances surrounding trial counsel’s alleged representation to the court that defendant would not be testifying, and whether defendant was aware of, and concurred with, that decision. * * *

The dissent argues that no hearing is necessary because “the alleged deficiencies in trial counsel’s performance . . . could not have affected the result of the trial.” That, however, is not the standard for reviewing claims of ineffective assistance of counsel under the State Constitution. New York “refuse[s] to apply the harmless error doctrine in cases involving substantiated claims of ineffective assistance” … . Although whether a defendant would have been acquitted but for counsel’s errors is relevant, a state claim of ineffective assistance “is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case” … . “Thus, under our State Constitution, even in the absence of a reasonable probability of a different outcome, inadequacy of counsel will still warrant reversal whenever a defendant is deprived of a fair trial” … . People v Mercado, 2017 NY Slip Op 01439, 1st Dept 2-23-17

 

CRIMINAL LAW (DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, WHETHER THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT ABSENT DEFENSE COUNSEL’S MISTAKES IS NOT THE FOCUS OF THE INEFFECTIVE-ASSISTANCE ANALYSIS)/ATTORNEYS (CRIMINAL LAW, (DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, WHETHER THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT ABSENT DEFENSE COUNSEL’S MISTAKES IS NOT THE FOCUS OF THE INEFFECTIVE-ASSISTANCE ANALYSIS)/INEFFECTIVE ASSISTANCE (DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, WHETHER THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT ABSENT DEFENSE COUNSEL’S MISTAKES IS NOT THE FOCUS OF THE INEFFECTIVE-ASSISTANCE ANALYSIS)/SET ASIDE CONVICTION, MOTION TO (DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, WHETHER THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT ABSENT DEFENSE COUNSEL’S MISTAKES IS NOT THE FOCUS OF THE INEFFECTIVE-ASSISTANCE ANALYSIS)

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NO INTERLOCUTORY APPEAL FROM DENIAL OF A CIVIL MOTION MADE IN THE CONTEXT OF A CRIMINAL PROCEEDING.

The First Department determined the denial of a civil motion seeking discovery (letters rogatory) oversees which was made in the context of a criminal proceeding could not be the subject of an interlocutory appeal:

In this matter where an indictment has been filed, a criminal trial is pending, and defendants seek information via letters rogatory for use at their criminal trial, the denial of the application for such letters is part of the criminal proceeding, notwithstanding that the application was brought under CPLR 3108 … .

“It is well established that no appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute”  … . The order appealed from is not a disposition listed in CPL 450.10 or 450.15, and is therefore not an appealable paper … . A “defendant may only appeal after conviction” … , and may not obtain an interlocutory appeal by claiming to invoke the court’s civil jurisdiction. People v DePalo, 2017 NY Slip Op 01441, 1st Dept 2-23-17

 

CRIMINAL LAW (NO INTERLOCUTORY APPEAL FROM DENIAL OF A CIVIL MOTION MADE IN THE CONTEXT OF A CRIMINAL PROCEEDING)/APPEALS (CRIMINAL LAW, NO INTERLOCUTORY APPEAL FROM DENIAL OF A CIVIL MOTION MADE IN THE CONTEXT OF A CRIMINAL PROCEEDING)/CIVIL PROCEDURE (CRIMINAL LAW, NO INTERLOCUTORY APPEAL FROM DENIAL OF A CIVIL MOTION MADE IN THE CONTEXT OF A CRIMINAL PROCEEDING)/LETTERS ROGATORY (CRIMINAL LAW, APPEALS, NO INTERLOCUTORY APPEAL FROM DENIAL OF A CIVIL MOTION MADE IN THE CONTEXT OF A CRIMINAL PROCEEDING)

ALTHOUGH DEFECTS IN GUILTY PLEA NOT PRESERVED BY A MOTION, PLEA VACATED IN THE INTEREST OF JUSTICE BECAUSE JUDGE DID NOT ENSURE DEFENDANT UNDERSTOOD THE CONSTITUTIONAL RIGHTS HE WAS GIVING UP.

The Third Department determined defendant’s waiver of appeal was inadequate and there was no assurance defendant understood the constitutional rights waived by his guilty plea. The plea was vacated, in the interest of justice, on that ground:

Although defendant’s challenge to the plea was not preserved through an appropriate postallocution motion … , we exercise our interest of justice jurisdiction to reverse the judgment … . “While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights” … .

Here, County Court made no effort to explain the consequences of a guilty plea, making only a passing reference to them by asking defendant if anyone was forcing him to give up his “right[] to [a] jury trial” … . The court further failed to establish that defendant had consulted with his counsel about the trial-related rights that he was forfeiting by pleading guilty or the constitutional consequences of a guilty plea, “instead making a vague inquiry into whether defendant had spoken to defense counsel” … or had any questions of his counsel regarding his “rights,” “the plea bargain, the trial and anything else that [was] important to [him]” … . With no affirmative showing on the record that defendant understood and waived his constitutional rights when he entered the guilty plea, the plea was invalid and must be vacated … . People v Herbert, 2017 NY Slip Op 01408, 3rd Dept 2-23-17

CRIMINAL LAW (ALTHOUGH DEFECTS IN GUILTY PLEA NOT PRESERVED BY A MOTION, PLEA VACATED IN THE INTEREST OF JUSTICE BECAUSE JUDGE DID NOT ENSURE DEFENDANT UNDERSTOOD THE CONSTITUTIONAL RIGHTS HE WAS GIVING UP)/GUILTY PLEA (ALTHOUGH DEFECTS IN GUILTY PLEA NOT PRESERVED BY A MOTION, PLEA VACATED IN THE INTEREST OF JUSTICE BECAUSE JUDGE DID NOT ENSURE DEFENDANT UNDERSTOOD THE CONSTITUTIONAL RIGHTS HE WAS GIVING UP)

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TRIAL JUDGE’S EXTENSIVE QUESTIONING OF WITNESSES DEPRIVED DEFENDANT OF A FAIR TRIAL.

The Second Department ordered a new trial because the trial judge conducted extensive questioning of witnesses:

Supreme Court conducted excessive and prejudicial questioning of trial witnesses, warranting a new trial. Although defense counsel did not object to the questioning of witnesses by the court, we reach this contention in the exercise of our interest of justice jurisdiction …. . “[W]hile a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on the function or appearance of an advocate'” … . “In last analysis, [the trial judge] should be guided by the principle that his [or her] function is to protect the record, not to make it” … . “[T]he line is crossed when the judge takes on either the function or appearance of an advocate at trial” … . Indeed, “even proper questions from trial judges present significant risks of prejudicial unfairness, particularly when the trial judge indulge[s] in an extended questioning’ of witnesses” … .

* * * …[T]he court’s improper interference with the conduct of the trial deprived the defendant of a fair trial, and a new trial is warranted … . People v Davis, 2017 NY Slip Op 01381, 2nd Dept 2-22-17

 

CRIMINAL LAW (TRIAL JUDGE’S EXTENSIVE QUESTIONING OF WITNESSES DEPRIVED DEFENDANT OF A FAIR TRIAL)/JUDGES (CRIMINAL LAW, TRIAL JUDGE’S EXTENSIVE QUESTIONING OF WITNESSES DEPRIVED DEFENDANT OF A FAIR TRIAL)

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