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JURY SHOULD HAVE BEEN INSTRUCTED A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW (REQUIRING CORROBORATION OF THE WITNESS’ TESTIMONY), REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESERVED THE ISSUE FOR APPEAL.

The Third Department, reversing defendant’s conviction, determined the jury should have been instructed a witness (Perkins) was an accomplice as a matter of law. The defendant was charged and convicted of tampering with evidence (attempting to dispose of a jacket allegedly worn when defendant committed murder). It was alleged defendant instructed Perkins to get rid of his boots. The court noted that defendant’s request for the instruction, made during deliberations in response to a jury note, preserved the issue for appeal:

… [I]t is well settled that, “to be an accomplice for corroboration purposes, the witness must somehow be criminally implicated and potentially subject to prosecution for the conduct or factual transaction related to the crime[] for which the defendant is on trial” … . Thus, “a ‘witness is an accomplice as a matter of law only if the jury could reasonably reach no other conclusion but that he [or she] participated in the offense charged or an offense based upon the same or some of the same facts or conduct which constitute the offense charged'” … .

Perkins’ testimony established that she picked defendant up at the same location that the jacket was later found and she subsequently disposed of defendant’s boots pursuant to his direction. In addition, she was arrested the same day as defendant, was charged with a felony, entered into a cooperation agreement with the People and, pursuant to that agreement, pleaded guilty to a misdemeanor in exchange for her truthful testimony against defendant. When defendant requested the accomplice charge, he stated that Perkins had pleaded guilty to “obstructing governmental administration . . . in exchange for not being prosecuted for tampering.” In light of this, we find that Perkins was an accomplice as a matter of law “since [s]he could have been (and was) charged with a crime ‘based upon some of the same facts or conduct’ upon which the charge[] against defendant [was] based” … . People v Whyte, 2016 NY Slip Op 07880, 3rd Dept 11-23-16

CRIMINAL LAW (JURY SHOULD HAVE BEEN INSTRUCTED A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW (REQUIRING CORROBORATION OF THE WITNESS’ TESTIMONY), REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESEVED THE ISSUE FOR APPEAL)/EVIDENCE (CRIMINAL LAW, JURY SHOULD HAVE BEEN INSTRUCTED A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW (REQUIRING CORROBORATION OF THE WITNESS’ TESTIMONY), REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESEVED THE ISSUE FOR APPEAL)/APPEALS (CRIMINAL LAW, REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESEVED THE ISSUE FOR APPEAL)

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CRITERIA FOR INQUIRY INTO DEFENDANT’S REQUEST TO REPRESENT HIMSELF EXPLAINED, NOT MET HERE.

The Third Department, reversing defendant’s conviction, determined the trial judge did not use the right criteria in denying defendant’s request to represent himself:

County Court inquired into defendant’s background, emphasized the importance of having counsel represent him, cautioned against the dangers of representing himself and tested defendant’s skill as an advocate with several evidentiary questions. The issue, however, is not the extent of defendant’s legal knowledge, but his capacity to knowingly waive the right to counsel … . In denying the request, County Court essentially ruled that it was not in defendant’s best interest and that the application was untimely, without expressly addressing defendant’s capacity to waive his right to counsel. Since defendant’s request was made prior to the commencement of trial, it was unquestionably timely … . Moreover, we are satisfied that defendant, who informed the court that he had obtained his GED and engaged in paralegal studies for a year, and was described by the court as “bright” and “articulate,” competently, intelligently and voluntarily waived his right to the counsel. People v Poulos, 2016 NY Slip Op 07879, 3rd Dept 11-23-16

CRIMINAL LAW (CRITERIA FOR INQUIRY INTO DEFENDANT’S REQUEST TO REPRESENT HIMSELF EXPLAINED, NOT MET HERE)/ATTORNEYS (CRIMINAL LAW, CRITERIA FOR INQUIRY INTO DEFENDANT’S REQUEST TO REPRESENT HIMSELF EXPLAINED, NOT MET HERE)/PRO SE CRIMINAL LAW, CRITERIA FOR INQUIRY INTO DEFENDANT’S REQUEST TO REPRESENT HIMSELF EXPLAINED, NOT MET HERE)/RIGHT TO COUNSEL (CRITERIA FOR INQUIRY INTO DEFENDANT’S REQUEST TO REPRESENT HIMSELF EXPLAINED, NOT MET HERE)

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FAILURE TO MOVE TO SUPPRESS STATEMENT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

The Third Department determined, under the facts, defendant’s counsel was ineffective in failing to move to suppress defendant’s statement, which was made after 26 hours of interrogation:

… “[C]ounsel had everything to gain and nothing to lose by moving to suppress the [oral statements]” … . This is not to say that counsel must always seek to suppress evidence, and we reiterate that counsel is not ineffective for failing to make meritless motions … . Under the circumstances of this case, however, had counsel taken steps to suppress statements from the interrogation, the potential upside would have been the exclusion of the inconsistent statements … . Another potential gain would have been a basis to exclude the seized physical evidence obtained by the search warrants inasmuch as these warrants were secured, in part, by information obtained from defendant’s interrogation … . Indeed, with respect to this physical evidence, counsel recognized that, by not seeking to suppress the physical evidence on which blood had been found, he had to explain the blood’s presence to the jury. He further admitted that the People’s case would have been weaker had this physical evidence been excluded. While we do not pass on whether counsel would have been ultimately successful in suppressing either defendant’s oral statements or the seized physical evidence, we do conclude that a colorable basis existed for seeking suppression. Given the potential benefit in doing so, we discern no strategic or legitimate reason to let any of this crucial evidence come in unabated at trial … . People v Zeh, 2016 NY Slip Op 07881, 3rd Dept 11-23-16

CRIMINAL LAW (FAILURE TO MOVE TO SUPPRESS STATEMENT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL)/ATTORNEYS (CRIMINAL LAW, FAILURE TO MOVE TO SUPPRESS STATEMENT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL)/INEFFECTIVE ASSISTANCE (FAILURE TO MOVE TO SUPPRESS STATEMENT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL)

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CONSECUTIVE-CONCURRENT SENTENCING RULES EXPLAINED IN SOME DETAIL, TELLING DEFENDANT HE COULD RECEIVE CONSECUTIVE SENTENCES FOR ATTEMPTED FELONY MURDER AND THE UNDERLYING FELONY (ROBBERY) DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE.

The Court of Appeals, in an opinion by Judge Abdus-Salaam, resolving two appeals stemming from the same incident, over a three-judge dissent in the “sentencing” appeal, affirmed the defendant’s conviction, finding that the concurrent/consecutive sentencing rules were properly applied, and the Alford plea was not tainted by erroneous information provided by defense counsel. Defendant, during the course of an armed robbery of several victims in a park, discharged a weapon, grazing one of the victims. Defendant was charged with robbery, attempted robbery and attempted first degree felony murder. The court noted that the Appellate Division here (4th Department) found that consecutive sentences for felony murder and the underlying felony could have been imposed (not the case here). while two other departments have held such sentences must be concurrent. The Court of Appeals did not address that issue because it was raised in a reply brief:

In People v Laureano, we explained that when “determining whether concurrent sentences are required, the sentencing court must first examine the statutory definitions of the crimes for which defendant has been convicted” (87 NY2d at 643). The court must then determine “whether the actus reus element is, by definition, the same for both offenses (under the first prong of the statute), or if the actus reus for one offense is, by definition, a material element of the second offense (under the second prong)” (id.). The court must focus on actus reus rather than mens rea “[b]ecause both prongs of Penal Law § 70.25 (2) refer to the ‘act or omission’ . . . that constitutes the offense” … .

If a defendant’s acts or omissions do not fit under either prong of the statute, “the People have satisfied their obligation of showing that concurrent sentences are not required” … . When there “is some overlap of the elements of multiple statutory offenses,” courts retain discretion to impose consecutive sentences “if the People can demonstrate that the acts or omissions committed by the defendant were separate and distinct acts” … , even “though they are part of a single transaction” … . * * *

We have not directly addressed whether the sentence on a first-degree felony murder charge must run concurrently with the sentence imposed on the underlying felony. At the time of defendant’s sentencing, the 4th Department had yet to address this issue, but the 2nd and 3rd Departments had, holding that a sentence for first-degree felony murder had to run concurrently with the sentence imposed on the underlying felony … . However, when faced with the issue in this case, the 4th Department affirmed the sentencing court’s conclusion that the sentences could run consecutively. Under these circumstances, we cannot say that defense counsel’s advice to defendant, even if erroneous, rendered him ineffective … . People v Couser, 2016 NY Slip Op 07831, CtApp 11-22-16

 

CRIMINAL LAW (CONSECUTIVE-CONCURRENT SENTENCING RULES EXPLAINED IN SOME DETAIL)/SENTENCING (CONSECUTIVE-CONCURRENT SENTENCING RULES EXPLAINED IN SOME DETAIL)/CONSECUTIVE SENTENCES (CONSECUTIVE-CONCURRENT SENTENCING RULES EXPLAINED IN SOME DETAIL)/CONCURRENT SENTENCES (CONSECUTIVE-CONCURRENT SENTENCING RULES EXPLAINED IN SOME DETAIL)/ATTORNEYS (TELLING DEFENDANT HE COULD RECEIVE CONSECUTIVE SENTENCES FOR ATTEMPTED FELONY MURDER AND THE UNDERLYING FELONY (ROBBERY) DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/FELONY MURDER (TELLING DEFENDANT HE COULD RECEIVE CONSECUTIVE SENTENCES FOR ATTEMPTED FELONY MURDER AND THE UNDERLYING FELONY (ROBBERY) DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)

NOT ADMINISTERING THE DWI COORDINATION TESTS TO DEFENDANT BECAUSE OF A LANGUAGE BARRIER DID NOT VIOLATE EQUAL PROTECTION OR DUE PROCESS.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge dissent, determined the failure to administer coordination tests in a DWI case because of a “language barrier,” did not violate equal protection or due process. In this case the defendant was of Hispanic origin and spoke Spanish. The requirement that the tests be administered in English was deemed facially neutral and not directed at a suspect class, and the state was deemed to have a substantial interest in avoiding the cumbersome requirement that an arresting officer administer the tests in the arrestee’s language:

The challenged policy withstands rational basis review. Both the NYPD and the public have a substantial interest in ensuring the reliability of coordination tests, and the clarity of the instructions is crucial to the reliability of the results. Indeed, the record makes clear that coordination tests are designed not only to assess a suspect’s “motor skills in completing the specific tasks,” but also to evaluate the suspect’s “capacity to [] follow instructions.” But coordination tests are uniquely ill-suited for administration via translation; they are generally lengthy — containing thirty lines of instructions — and require contemporaneous demonstration and explanation of the tasks to be performed. * * *

… [T]he implicated State interests are substantial. The State has a clear interest in avoiding the cumbersome and prohibitively expensive administrative and fiscal burdens of providing the requested translation services. The State also has a strong interest in ensuring the accuracy of physical coordination tests, and the use of translated instructions — either through qualified interpreters or through multilingual officers — could compromise the test’s reliability. Given the substantial State interests involved, defendant’s due process claim must be rejected … . People v Aviles, 2016 NY Slip Op 07836, CtApp 11-22-16

 

CRIMINAL LAW (NOT ADMINISTERING THE DWI COORDINATION TESTS TO DEFENDANT BECAUSE OF A LANGUAGE BARRIER DID NOT VIOLATE EQUAL PROTECTION OR DUE PROCESS)/DWI (NOT ADMINISTERING THE DWI COORDINATION TESTS TO DEFENDANT BECAUSE OF A LANGUAGE BARRIER DID NOT VIOLATE EQUAL PROTECTION OR DUE PROCESS)/EQUAL PROTECTION (NOT ADMINISTERING THE DWI COORDINATION TESTS TO DEFENDANT BECAUSE OF A LANGUAGE BARRIER DID NOT VIOLATE EQUAL PROTECTION OR DUE PROCESS)/DUE PROCESS (NOT ADMINISTERING THE DWI COORDINATION TESTS TO DEFENDANT BECAUSE OF A LANGUAGE BARRIER DID NOT VIOLATE EQUAL PROTECTION OR DUE PROCESS)

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SYRACUSE NOISE ORDINANCE PROHIBITING MUSIC LOUD ENOUGH TO BE HEARD 50 FEET FROM A PERSON’S CAR IS NOT UNCONSTITUTIONALLY VAGUE.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the Syracuse Noise Ordinance was not unconstitutionally vague and therefore defendant was properly stopped in his vehicle based upon a violation of the ordinance:

Syracuse Noise Ordinance section 40-16 (b) is sufficiently definite to put a person on notice that playing music which can be heard over 50 feet from such person’s car on a public road, in a manner that would annoy or disturb “a reasonable person of normal sensibilities” is forbidden conduct and the objective standard affords police sufficiently “clear standards [for] enforcement” … . People v Stephens, 2016 NY Slip Op 07819, CtApp 11-21-16

CRIMINAL LAW (SYRACUSE NOISE ORDINANCE PROHIBITING MUSIC LOUD ENOUGH TO BE HEARD 50 FEET FROM A PERSON’S CAR IS NOT UNCONSTITUTIONALLY VAGUE)/NOISE ORDINANCE (SYRACUSE NOISE ORDINANCE PROHIBITING MUSIC LOUD ENOUGH TO BE HEARD 50 FEET FROM A PERSON’S CAR IS NOT UNCONSTITUTIONALLY VAGUE)/MUNICIPAL LAW (SYRACUSE NOISE ORDINANCE PROHIBITING MUSIC LOUD ENOUGH TO BE HEARD 50 FEET FROM A PERSON’S CAR IS NOT UNCONSTITUTIONALLY VAGUE)/STREET STOPS (SYRACUSE NOISE ORDINANCE PROHIBITING MUSIC LOUD ENOUGH TO BE HEARD 50 FEET FROM A PERSON’S CAR IS NOT UNCONSTITUTIONALLY VAGUE)

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HEARSAY STATEMENT BY BYSTANDER WHO OBSERVED DEFENDANT PROPERLY ADMITTED AS A PRESENT SENSE IMPRESSION.

The Court of Appeals determined a (hearsay) spontaneous statement made by a bystander to a police officer about defendant’s attempt to get into the back of a FedEx truck was properly admitted as a present sense impression:

We hold that the statement was properly admitted as a present sense impression. That exception to the hearsay rule allows the admission of “spontaneous descriptions of events made substantially contemporaneously with the observations . . . if the descriptions are sufficiently corroborated by other evidence” … . Here, the woman’s statement was made to the officer immediately after the event she described and before she had an opportunity for studied reflection. The officer’s own observations sufficiently corroborated her description to allow its admission at trial … . People v Jones, 2016 NY Slip Op 07820, CtApp 11-21-16

CRIMINAL LAW (HEARSAY STATEMENT BY BYSTANDER WHO OBSERVED DEFENDANT PROPERLY ADMITTED AS A PRESENT SENSE IMPRESSION)/EVIDENCE (CRIMINAL LAW, HEARSAY STATEMENT BY BYSTANDER WHO OBSERVED DEFENDANT PROPERLY ADMITTED AS A PRESENT SENSE IMPRESSION)/HEARSAY (HEARSAY STATEMENT BY BYSTANDER WHO OBSERVED DEFENDANT PROPERLY ADMITTED AS A PRESENT SENSE IMPRESSION)/PRESENT SENSE IMPRESSION (HEARSAY STATEMENT BY BYSTANDER WHO OBSERVED DEFENDANT PROPERLY ADMITTED AS A PRESENT SENSE IMPRESSION)

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ALTHOUGH THE VICTIM DID NOT DIE FROM ASSAULT RELATED INJURIES, THE MEDICAL EXAMINER’S OPINION THE VICTIM WOULD NOT HAVE DIED FROM CARDIOVASCULAR DISEASE HAD HE NOT BEEN ASSAULTED WAS SUFFICIENT TO SUPPORT A FELONY MURDER CONVICTION.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a dissent, reversing the Appellate Division, determined the evidence was sufficient to support the defendant’s felony murder conviction. The victim was found dead two days after an assault which fractured facial bones. The medical examiner testified the facial injuries were not the cause of death. But the medical examiner, noting the victim’s obesity and enlarged heart, offered an opinion that the victim would not have died from cardiovascular disease he not been assaulted:

Here, the medical examiner’s testimony, in conjunction with the crime scene evidence, established a sufficient causal connection between defendant’s infliction of blunt force trauma injuries during the violent home invasion and the victim’s death. Specifically, the medical examiner testified that “[s]tress of any kind can hasten a person’s demise by cardiovascular disease” and that, here, the stress caused by the injuries inflicted by defendant, “given [the victim’s] underlying heart disease[,] led to his death.” That testimony, along with the crime scene evidence that defendant’s beating of the victim was severe and immediate in its consequences, “was sufficient to prove that defendant’s conduct ‘set in motion and legally caused the death’ of” the victim … . Thus, the jury could have reasonably concluded that defendant’s conduct was an actual contributory cause of the victim’s death.

With respect to foreseeability of the death, the People must prove “that the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused” … . In this case, defendant violently attacked the victim, in his home, breaking his jaw and leaving him on the floor in a blood-spattered room where he was found dead. From all of the evidence and the circumstances surrounding this violent encounter, the proof was sufficient to permit the jury to conclude that the victim’s heart failure, induced by the extreme stress and trauma of such a violent assault, was a directly foreseeable consequence of defendant’s conduct … . People v Davis, 2016 NY Slip Op 07818, CtApp 11-21-16

 

CRIMINAL LAW (ALTHOUGH THE VICTIM DID NOT DIE FROM ASSAULT RELATED INJURIES, THE MEDICAL EXAMINER’S OPINION THE VICTIM WOULD NOT HAVE DIED FROM CARDIOVASCULAR DISEASE HAD HE NOT BEEN ASSAULTED WAS SUFFICIENT TO SUPPORT A FELONY MURDER CONVICTION)/EVIDENCE (CRIMINAL LAW, (ALTHOUGH THE VICTIM DID NOT DIE FROM ASSAULT RELATED INJURIES, THE MEDICAL EXAMINER’S OPINION THE VICTIM WOULD NOT HAVE DIED FROM CARDIOVASCULAR DISEASE HAD HE NOT BEEN ASSAULTED WAS SUFFICIENT TO SUPPORT A FELONY MURDER CONVICTION)/FELONY MURDER (ALTHOUGH THE VICTIM DID NOT DIE FROM ASSAULT RELATED INJURIES, THE MEDICAL EXAMINER’S OPINION THE VICTIM WOULD NOT HAVE DIED FROM CARDIOVASCULAR DISEASE HAD HE NOT BEEN ASSAULTED WAS SUFFICIENT TO SUPPORT A FELONY MURDER CONVICTION

TOWING OF DEFENDANT’S CAR (AND INVENTORY SEARCH) AFTER DEFENDANT’S ARREST FOR SHOPLIFTING WAS CONSISTENT WITH POLICE DEPARTMENT’S WRITTEN POLICY.

The Court of Appeals, over a dissent, determined the police properly towed defendant’s car (which resulted in an inventory search) after defendant’s arrest for shoplifting. The towing of the car was consistent with the provisions of the police department’s written policy:

… [T]he police officers’ decision to tow defendant’s vehicle, which was parked in the same parking lot in which defendant was arrested, was properly made in accordance with “standard criteria” set forth in the police department’s written policy … . Those criteria, among other things, limit an officer’s discretion to tow a vehicle upon a driver’s arrest to situations in which such action is necessary to ensure the safety of the vehicle and its contents and where releasing the vehicle to an owner or designee is not otherwise appropriate. Upon defendant’s arrest, the vehicle would have been left unattended indefinitely in the complainant’s private parking lot, which had a history of vandalism, and the complainant requested that the police remove the vehicle. In our view, the officers’ decision to tow the vehicle was, therefore, consistent with a community caretaking function … . Moreover, there is no indication that the officers suspected that they would discover evidence of further criminal activity in defendant’s vehicle, or that they towed the vehicle for that purpose … . People v Tardi, 2016 NY Slip Op 07822, CtApp 11-21-16

CRIMINAL LAW (TOWING OF DEFENDANT’S CAR (AND INVENTORY SEARCH) AFTER DEFENDANT’S ARREST FOR SHOPLIFTING WAS CONSISTENT WITH POLICE DEPARTMENT’S WRITTEN POLICY)/INVENTORY SEARCH (TOWING OF DEFENDANT’S CAR (AND INVENTORY SEARCH) AFTER DEFENDANT’S ARREST FOR SHOPLIFTING WAS CONSISTENT WITH POLICE DEPARTMENT’S WRITTEN POLICY)/TOWING (TOWING OF DEFENDANT’S CAR (AND INVENTORY SEARCH) AFTER DEFENDANT’S ARREST FOR SHOPLIFTING WAS CONSISTENT WITH POLICE DEPARTMENT’S WRITTEN POLICY

ASKING DEFENDANT WHY HE WAS NERVOUS AND WHETHER HE WAS CARRYING DRUGS DEEMED INVASIVE QUESTIONING, SUPPRESSION GRANTED.

The Fourth Department determined asking defendant (who was on a bicycle and properly stopped) why he was so nervous and whether he was carrying drugs was invasive questioning unsupported by an indication of criminal activity. Suppression of defendant’s statements and seized evidence should have been granted:

… [F]ollowing the permissible stop of defendant on his bicycle, the officers improperly escalated the encounter to a level two common-law inquiry by asking defendant why he was so nervous and whether he was carrying drugs. The officers’ inquiries, which involved “invasive questioning” that was “focuse[d] on the possible criminality” of defendant … , were not supported by the requisite founded suspicion of criminality … . The testimony at the suppression hearing establishes that the officers observed nothing indicative of criminality, and we conclude that defendant’s nervousness upon being confronted by the police did not give rise to a founded suspicion that criminal activity was afoot … . Because defendant’s inculpatory oral response to the impermissible accusatory questioning resulted in the seizure of the drugs from defendant’s pocket and a postarrest written statement from defendant, the drugs and the oral and written statements must be suppressed … . People v Freeman, 2016 NY Slip Op 07784, 4th Dept 11-18-16

CRIMINAL LAW (ASKING DEFENDANT WHY HE WAS NERVOUS AND WHETHER HE WAS CARRYING DRUGS DEEMED INVASIVE QUESTIONING, SUPPRESSION GRANTED)/SUPPRESSION (ASKING DEFENDANT WHY HE WAS NERVOUS AND WHETHER HE WAS CARRYING DRUGS DEEMED INVASIVE QUESTIONING, SUPPRESSION GRANTED)/STREET STOPS (ASKING DEFENDANT WHY HE WAS NERVOUS AND WHETHER HE WAS CARRYING DRUGS DEEMED INVASIVE QUESTIONING, SUPPRESSION GRANTED)

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