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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)

NO EVIDENCE JURY COULD SEE ORANGE CORRECTIONS DEPARTMENT PANTS WORN BY DEFENDANT ON THE FIRST DAY OF TRIAL, DEFENDANT NOT DENIED A FAIR TRIAL.

The Court of Appeals determined the fact that defendant appeared on the first day of the trial wearing orange sweat pants issued by the department of corrections did not require reversal. There was no evidence the jury could see the defendant's legs:

Under the circumstances described here by the trial judge on the record, there is no merit to defendant's contention that he was denied a fair trial because he was compelled to appear before the jury in correctional garb. We have previously held that “to require [a defendant] to appear in convict's attire — a continuing visual communication to the jury — is to deny” the defendant the right to appear “with the dignity and self-respect of a free and innocent” person … , consistent with the Supreme Court's holding that “[t]he State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes” … . These concerns are not implicated here, however, where there is no evidence that defendant's orange correctional pants were visible to the jury and the clothing that was visible to the jury was clearly not identifiable as correctional garb … . People v Then, 2017 NY Slip Op 01021, CtApp 2-9-17

CRIMINAL LAW (NO EVIDENCE JURY COULD SEE ORANGE CORRECTIONS DEPARTMENT PANTS WORN BY DEFENDANT ON THE FIRST DAY OF TRIAL, DEFENDANT NOT DENIED A FAIR TRIAL)/PRISON CLOTHES (CRIMINAL LAW, (NO EVIDENCE JURY COULD SEE ORANGE CORRECTIONS DEPARTMENT PANTS WORN BY DEFENDANT ON THE FIRST DAY OF TRIAL, DEFENDANT NOT DENIED A FAIR TRIAL)

FAILURE TO READBACK THE CROSS OF AN IMPORTANT WITNESS PURSUANT TO THE JURY’S REQUEST REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The Second Department, in a case remitted after reversal by the Court of Appeals, determined the trial judge’s failure to respond to the deliberating jury’s request for a witness’s (Richard’s) testimony by reading both the direct and the cross deprived defendant of a fair trial. The Second Department had previously found the error to be a mode of proceedings error that required reversal in the absence of an objection. The Court of Appeals held the error was not a mode of proceedings error. On remand the Second Department addressed the unpreserved error in the interest of justice:

Although the defendant’s contentions regarding the jury note are unpreserved for appellate review, as no objections were raised (see CPL 470.05[2]), we reach them in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a]). Under the circumstances of this case, the trial court’s failure to meaningfully respond to the jury note requesting a readback of Richards’ testimony deprived the defendant of a fair trial … . ” [A] request for a reading of testimony generally is presumed to include cross-examination which impeaches the testimony to be read back, and any such testimony should be read to the jury unless the jury indicates otherwise'” ,,, . Richards was the only witness to the argument and the shooting, other than the complainant and the defendant. Richards’ cross-examination testimony included testimony that was relevant to the defense, directly impeached significant portions of his direct examination testimony, and was detrimental to the prosecution. As a result, the trial court’s readback of only Richards’ direct examination testimony in response to the jury’s request seriously prejudiced the defendant … . People v Morris, 2017 NY Slip Op 01007, 2nd Dept 2-8-17

CRIMINAL LAW (FAILURE TO READBACK THE CROSS OF AN IMPORTANT WITNESS PURSUANT TO THE JURY’S REQUEST REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/JURY NOTES (CRMINAL LAW, FAILURE TO READBACK THE CROSS OF AN IMPORTANT WITNESS PURSUANT TO THE JURY’S REQUEST REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)

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ATTEMPTED FIRST DEGREE MURDER CONVICTIONS PRECLUDED BY FAILURE TO PROVE THE 38-YEAR-OLD DEFENDANT WAS MORE THAN 18 YEARS OLD, RECKLESS ENDANGERMENT FIRST DEGREE CONVICTION NOT SUPPORTED BY PROOF OF A GRAVE RISK OF DEATH.

The Fourth Department determined the failure to offer any proof the 38-year-old defendant was more than 18 years old precluded conviction of attempted first degree murder (defendant shot at police officers). The convictions were reduced to attempted second degree murder. The Fourth Department further determined the reckless endangerment first degree was not supported by sufficient evidence that the passenger in defendant’s vehicle was exposed to a “grave risk of death” when defendant rammed a police vehicle. The conviction was reduced to recklessd endangerment second degree:

As the People correctly concede, however, the evidence is legally insufficient to establish that defendant was more than 18 years old at the time of the crimes. Although defendant failed to preserve that contention for our review … , we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Defendant was in fact 38 years old at the time of the crimes in September 2011, and the jury naturally had the opportunity to observe his appearance during his trial in 2012, but that opportunity “does not, by itself, satisfy the People’s obligation to prove defendant’s age” … , and there was no evidence at trial bearing on his age … . The evidence is sufficient to establish that defendant intended to kill each of the officers … , and we reject defendant’s further contention that the verdict is against the weight of the evidence with respect to his intent … . We therefore modify the judgment by reducing the conviction under counts one and two to attempted murder in the second degree (§§ 110.00, 125.25 [1]), and we remit the matter to County Court for sentencing on those counts. * * *

There was evidence that defendant “rammed” the side of the police vehicle with the part of his truck in which his girlfriend was sitting, but neither officer could estimate how fast defendant was going at impact, and the relatively short distance he traveled toward the police vehicle tended to show that he could not have been going very fast. Furthermore, both vehicles remained operable after the collision, and there was no evidence that anyone sustained any injury from it. Even viewing the evidence in the light most favorable to the People … , we conclude that it is legally insufficient to establish that the collision created a grave risk of death to defendant’s girlfriend … . People v VanGorden, 2017 NY Slip Op 00877, 4th Dept 2-3-17

 

CRIMINAL LAW (ATTEMPTED FIRST DEGREE MURDER CONVICTIONS PRECLUDED BY FAILURE TO PROVE THE 38-YEAR-OLD DEFENDANT WAS MORE THAN 18 YEARS OLD, RECKLESS ENDANGERMENT FIRST DEGREE CONVICTION NOT SUPPORTED BY PROOF OF A GRAVE RISK OF DEATH)/EVIDENCE (CRIMINAL LAW, ATTEMPTED FIRST DEGREE MURDER CONVICTIONS PRECLUDED BY FAILURE TO PROVE THE 38-YEAR-OLD DEFENDANT WAS MORE THAN 18 YEARS OLD, RECKLESS ENDANGERMENT FIRST DEGREE CONVICTION NOT SUPPORTED BY PROOF OF A GRAVE RISK OF DEATH)

AT THE SUPPRESSION HEARING THE PEOPLE PRESENTED NO EVIDENCE OF THE LEGALITY OF THE VEHICLE STOP, CONSENT TO SEARCH THE CAR WAS THEREFORE DEEMED INVOLUNTARY AND THE SEIZED COCAINE SUPPRESSED.

The Fourth Department, reversing Supreme Court, determined the People did not come forward with proof demonstrating the legality of a vehicle stop. Defendant and the driver were the only persons in the car. A large amount of cocaine was seized from the back seat area. The driver purportedly consented to the search. However, because, at the suppression hearing, no proof of the legality of the stop was presented, the consent was deemed involuntary and the evidence suppressed:

We conclude that, “[b]ecause the People failed to present evidence at the suppression hearing establishing the legality of the police conduct, [the driver’s] purported consent to the search of his vehicle was involuntary[,] and all evidence seized from the vehicle as a result of that consent should have been suppressed” … . We therefore reverse the judgment, vacate the plea, grant defendant’s omnibus motion insofar as it sought suppression of the cocaine found in the vehicle, and remit the matter to Supreme Court for further proceedings on the indictment. People v Kendrick, 2017 NY Slip Op 00870, 4th Dept 2-3-17

CRIMINAL LAW (AT THE SUPPRESSION HEARING THE PEOPLE PRESENTED NO EVIDENCE OF THE LEGALITY OF THE VEHICLE STOP, CONSENT TO SEARCH THE CAR WAS THEREFORE DEEMED INVOLUNTARY AND THE SEIZED COCAINE SUPPRESSED)/SEARCH AND SEIZURE (AT THE SUPPRESSION HEARING THE PEOPLE PRESENTED NO EVIDENCE OF THE LEGALITY OF THE VEHICLE STOP, CONSENT TO SEARCH THE CAR WAS THEREFORE DEEMED INVOLUNTARY AND THE SEIZED COCAINE SUPPRESSED)/SUPPRESSION (AT THE SUPPRESSION HEARING THE PEOPLE PRESENTED NO EVIDENCE OF THE LEGALITY OF THE VEHICLE STOP, CONSENT TO SEARCH THE CAR WAS THEREFORE DEEMED INVOLUNTARY AND THE SEIZED COCAINE SUPPRESSED)/STREET STOPS (AT THE SUPPRESSION HEARING THE PEOPLE PRESENTED NO EVIDENCE OF THE LEGALITY OF THE VEHICLE STOP, CONSENT TO SEARCH THE CAR WAS THEREFORE DEEMED INVOLUNTARY AND THE SEIZED COCAINE SUPPRESSED)

FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED.

The Fourth Department determined the denial of a for cause challenge to a juror required reversal:

Here, in response to the prosecutor’s question regarding whether any member of the panel thought that he or she could not be fair and impartial due to the allegations of driving while intoxicated, prospective juror No. 13 indicated that, due to situations in her past, she did not see any reason why anyone would need to drink and drive, and she could not be fair and impartial. Upon follow-up questioning by the court, she assured the court that she could set those feelings aside. Later, however, in response to defense counsel’s questions, prospective juror No. 13 indicated that she had wondered what defendant did wrong when she first walked into the courtroom, and that “obviously” she felt that “he must have done something wrong or he wouldn’t have” been in court. The court asked follow-up questions, but cut off the prospective juror before she could reply to one such question, and the court’s final substantive question failed to establish the prospective juror’s state of mind. Consequently, the court abused its discretion in denying defendant’s challenge for cause to prospective juror No. 13. People v Betances, 2017 NY Slip Op 00804, 4th Dept 2-3-17

CRIMINAL LAW (FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED)/JURORS (CRIMINAL LAW, FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED)

MOTION FOR DNA TESTING OF CERTAIN TRIAL EVIDENCE SHOULD NOT HAVE BEEN DENIED.

The Second Department determined Supreme Court should have granted defendant’s motion for DNA testing of some, but not all, of the evidence admitted at his trial:

Here, the defendant established that if forensic DNA testing had been conducted on two blood samples, a bloody sweater, and fingernail scrapings of the decedent, if any, recovered by the police from the crime scene, and if the results of such testing had been admitted at trial, there exists a reasonable probability that the verdict would have been more favorable to him … . However, with respect to the defendant’s request for forensic DNA testing of hair and fibers, the defendant failed to demonstrate that there is a reasonable probability that the verdict would have been more favorable to him had DNA testing results of those items been admitted into evidence … .

In opposition to the motion, the People failed to come forward with evidence demonstrating the existence or nonexistence of the materials sought, and whether such materials are available for testing. “[T]he defendant does not bear the burden of showing that the specified DNA evidence exists and is available in suitable quantities to make testing feasible. To the contrary, it is the People, as the gatekeeper of the evidence, who must show what evidence exists and whether the evidence is available for testing” … . “[A] conclusory assertion that the evidence no longer exists is legally insufficient” … . People v Robinson, 2017 NY Slip Op 00665, 2nd Dept 2-1-17

 

CRIMINAL LAW (MOTION FOR DNA TESTING OF CERTAIN TRIAL EVIDENCE SHOULD NOT HAVE BEEN DENIED)/EVIDENCE (CRIMINAL LAW, MOTION FOR DNA TESTING OF CERTAIN TRIAL EVIDENCE SHOULD NOT HAVE BEEN DENIED)/DNA (CRMINAL LAW, MOTION FOR DNA TESTING OF CERTAIN TRIAL EVIDENCE SHOULD NOT HAVE BEEN DENIED)

NO EVIDENTIARY BASIS FOR CONSTRUCTIVE POSSESSION JURY INSTRUCTION, NEW TRIAL ORDERED.

The Second Department determined defendant was entitled to a new trial on the criminal possession of a weapon counts.  The People requested a jury instruction for constructive possession and the instruction was given. The evidence at trial did not provide a basis for the instruction:

After the gunpoint robbery of the supermarket, committed by a single perpetrator, the defendant was arrested when he was found hiding in an attic of a nearby house. Shortly thereafter, police officers recovered a gun from the attic. The People sought to prove at trial, among other things, that the defendant was the individual who committed the robbery with the gun recovered from the attic. In the bill of particulars and throughout the trial, the People’s theory on the counts of criminal possession of a weapon in the second degree was that the defendant possessed the subject gun in the supermarket. Even at the charge conference, at which the People requested a charge of constructive possession, the People maintained that the basis of those counts was the defendant’s possession of the gun in the supermarket. Since there was no evidence from which the jury could conclude that the defendant constructively possessed the gun in the supermarket, that charge should not have been given … . People v Golden, 2017 NY Slip Op 00661, 2nd Dept 2-1-17

CRIMINAL LAW (NO EVIDENTIARY BASIS FOR CONSTRUCTIVE POSSESSION JURY INSTRUCTION, NEW TRIAL ORDERED)/JURY INSTRUCTIONS (CRIMINAL LAW, NO EVIDENTIARY BASIS FOR CONSTRUCTIVE POSSESSION JURY INSTRUCTION, NEW TRIAL ORDERED)/CONSTRUCTIVE POSSESSION (CRIMINAL LAW, NO EVIDENTIARY BASIS FOR CONSTRUCTIVE POSSESSION JURY INSTRUCTION, NEW TRIAL ORDERED)/EVIDENCE (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, NO EVIDENTIARY BASIS FOR CONSTRUCTIVE POSSESSION JURY INSTRUCTION, NEW TRIAL ORDERED)

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