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RESIDENTIAL AREA OF MIXED USE BUILDING COULD NOT BE ACCESSED FROM WHERE DEFENDANT ENTERED, BURGLARY (ENTRY OF DWELLING) CONVICTION REVERSED.

The Court of Appeals, over an extensive dissent, determined defendant should not have been convicted of burglary (entry of a “dwelling”) because the residential area of the building could not be accessed from where he entered:

Under the narrow circumstances of this case, application of the general rule as to what constitutes a dwelling in a mixed residential and commercial building within the meaning of Penal Law § 140.00 (2) is not warranted. Defendant, from a public sidewalk, entered the open cellar doors into a basement that was both entirely disconnected from the building and completely inaccessible to the residences in that building. The basement was not contiguous to any residential units. * * * …[T]he deli basement was both inaccessible to, and remote from, the residential apartments. It was inaccessible because defendant could not go anywhere into the building from the basement. He could not reach the deli or the apartments. All that he could reach from the basement was the public sidewalk. The basement was remote given that it was not used by the residents for any purposes and that there was no proof of any relationship between that space and the residents. In sum, there was no “close contiguity” … between the basement and the dwellings. Under these facts, “the special dangers inherent in the burglary of a dwelling do not exist” … . People v Joseph, 2016 NY Slip Op 06945, CtApp 10-25-16

CRIMINAL LAW (RESIDENTIAL AREA OF MIXED USE BUILDING COULD NOT BE ACCESSED FROM WHERE DEFENDANT ENTERED, BURGLARY CONVICTION REVERSED)/BURGLARY (RESIDENTIAL AREA OF MIXED USE BUILDING COULD NOT BE ACCESSED FROM WHERE DEFENDANT ENTERED, BURGLARY CONVICTION REVERSED)/DWELLING (BURGLARY, (RESIDENTIAL AREA OF MIXED USE BUILDING COULD NOT BE ACCESSED FROM WHERE DEFENDANT ENTERED, BURGLARY CONVICTION REVERSED)

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PEOPLE DID NOT ACT WITH DUE DILIGENCE SEEKING DNA TEST RESULTS; INDICTMENT PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, affirming the dismissal of the attempted first degree murder indictment on speedy trial grounds, determined the People did not act with due diligence in seeking DNA test results. DNA had been recovered from the gun involved. A DNA swab was not taken from the defendant until nine months after indictment:

The time to conduct DNA testing and to produce a DNA report may, under certain circumstances, be excluded from speedy trial computation as an exceptional circumstance. To invoke the exclusion provided in CPL 30.30 (4) (g), however, the People must exercise due diligence in obtaining the evidence. If the exclusion “is to be given reasonable effect and [] is to fulfill the legislative purpose, [it] must be limited to instances in which the prosecution’s inability to proceed is justified by the purposes of the investigation and credible, vigorous activity in pursuing it” … . In addition, while we have recognized that “‘[t]here is no precise definition of what constitutes an exceptional circumstance under CPL 30.30 (4) (g),'” we have stated “that the range of the term’s application is limited by the dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction” … .

Here, as a result of the People’s inaction in obtaining defendant’s DNA exemplar, the 161-day period of delay to test the DNA and to produce the DNA report was not excludable from speedy trial computation as an exceptional circumstance. People v Clarke, 2016 NY Slip Op 06939, CtApp 10-25-16

 

CRIMINAL LAW (PEOPLE DID NOT ACT WITH DUE DILIGENCE SEEKING DNA TEST RESULTS; INDICTMENT PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS)/ SPEEDY TRIAL (PEOPLE DID NOT ACT WITH DUE DILIGENCE SEEKING DNA TEST RESULTS; INDICTMENT PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS)/DNA TESTS (CRIMINAL LAW, PEOPLE DID NOT ACT WITH DUE DILIGENCE SEEKING DNA TEST RESULTS; INDICTMENT PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS)

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SORA RISK LEVEL ASSESSMENT REVERSED, DEFENDANT WAS NOT GIVEN A MEANINGFUL OPPORTUNITY TO RESPOND TO COURT’S ASSESSMENT FOR VIOLENCE.

The Third Department, reversing County Court’s risk level assessment, determined defendant was not given a meaningful opportunity to respond to the assessment of points:

A defendant has both a statutory and constitutional right to notice of points sought to be assigned to him or her so as to be afforded a meaningful opportunity to respond to that assessment … . Not only did County Court fail to give defendant notice of its intention to sua sponte assess points for the category of use of violence, it affirmatively misled defendant by its assurance that it had already “made a decision . . . regarding a point score,” which included no assignment of points for that risk factor. Accordingly, defendant was denied due process … . Considering the fact that defendant was never aware of the potential of the assignment of such points until a point in time where he no longer had an opportunity to object — his only remaining opportunity to be heard being explicitly limited to arguing for a downward departure — he need not have taken any further action to preserve the issue for our review … . People v Griest, 2016 NY Slip Op 06907, 33rd Dept 10-20-16

CRIMINAL LAW (SORA RISK LEVEL ASSESSMENT REVERSED, DEFENDANT WAS NOT GIVEN A MEANINGFUL OPPORTUNITY TO RESPOND TO COURT’S ASSESSMENT FOR VIOLENCE)/SEX OFFENDER REGISTRATION ACT (SORA) (SORA RISK LEVEL ASSESSMENT REVERSED, DEFENDANT WAS NOT GIVEN A MEANINGFUL OPPORTUNITY TO RESPOND TO COURT’S ASSESSMENT FOR VIOLENCE)/APPEALS (SORA RISK LEVEL ASSESSMENT REVERSED, DEFENDANT WAS NOT GIVEN A MEANINGFUL OPPORTUNITY TO RESPOND TO COURT’S ASSESSMENT FOR VIOLENCE, NO FURTHER ACTION NECESSARY TO PRESERVE ISSUE FOR APPEAL)

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JOURNALIST WHO INTERVIEWED DEFENDANT COULD NOT BE COMPELLED TO TESTIFY IN DEFENDANT’S MURDER TRIAL.

The First Department, reversing Supreme Court, determined a reporter (Robles) who interviewed defendant could not be compelled to testify at the defendant’s murder trial and could not be compelled to turn over her interview notes. The information gathered by the reporter was not “critical or necessary” to the People’s case:

In People v Bonie (141 AD3d 401 [1st Dept 2016], lv dismissed 28 NY3d 956 [2016]), a murder case based on circumstantial evidence, we found that the outtakes of an interview of the defendant taken at a detention center in which he discussed, inter alia, the charges against him and his relationship with the victim were ” critical or necessary’ to the People’s effort to prove motive, intent, and consciousness of guilt, since they contradict[ed] defendant’s earlier statements to police” … . In contrast, in this case, the People have a videotaped confession by the defendant that has been found admissible at trial and that includes statements consistent with other evidence in the case. Under the circumstances, and in keeping with “the consistent tradition in this State of providing the broadest possible protection to the sensitive role of gathering and disseminating news of public events'” … , we find that the People have not made a “clear and specific showing” that the disclosure sought from Robles (her testimony and interview notes) is “critical or necessary” to the People’s proof of a material issue so as to overcome the qualified protection for the journalist’s nonconfidential material (Civil Rights Law § 79-h[c]). People v Juarez, 2016 NY Slip Op 06900, 1st Dept 10-20-16

CRIMINAL LAW (JOURNALIST WHO INTERVIEWED DEFENDANT COULD NOT BE COMPELLED TO TESTIFY IN DEFENDANT’S MURDER TRIAL)/EVIDENCE (CRIMINAL LAW, JOURNALIST WHO INTERVIEWED DEFENDANT COULD NOT BE COMPELLED TO TESTIFY IN DEFENDANT’S MURDER TRIAL)/CIVIL RIGHTS LAW (JOURNALIST WHO INTERVIEWED DEFENDANT COULD NOT BE COMPELLED TO TESTIFY IN DEFENDANT’S MURDER TRIAL)/JOURNALISTS (JOURNALIST WHO INTERVIEWED DEFENDANT COULD NOT BE COMPELLED TO TESTIFY IN DEFENDANT’S MURDER TRIAL)

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NO INTENT TO PERMANENTLY DEPRIVE OWNER OF HIS PROPERTY, GRAND LARCENY CONVICTION REVERSED.

The Third Department, reversing defendant’s grand larceny conviction, determined there was insufficient evidence defendant intended to permanently deprive the owner of his all-terrain vehicle (ATV). Defendant planned to return the ATV in exchange for return of his tools:

Larcenous intent is the “intent to deprive another of property or to appropriate the same to himself or to a third person” … . The terms “deprive” and “appropriate” are both essential to larcenous intent and refer to a purpose “to exert permanent or virtually permanent control over the property taken, or to cause permanent or virtually permanent loss to the owner of the possession and use thereof” … . For this reason, “[t]he mens rea element of larceny is simply not satisfied by an intent to temporarily take property without the owner’s permission” … . The proof introduced at trial supported the singular reasonable conclusion that defendant was executing a plan to temporarily deprive the tenant of the ATV in order to force him to return defendant’s missing tools … . People v Drouin, 2016 NY Slip Op 06906, 3rd Dept 10-20-16

CRIMINAL LAW (NO INTENT TO PERMANENTLY DEPRIVE OWNER OF HIS PROPERTY, GRAND LARCENY CONVICTION REVERSED)/EVIDENCE (CRIMINAL LAW, NO INTENT TO PERMANENTLY DEPRIVE OWNER OF HIS PROPERTY, GRAND LARCENY CONVICTION REVERSED)/LARCENY (NO INTENT TO PERMANENTLY DEPRIVE OWNER OF HIS PROPERTY, GRAND LARCENY CONVICTION REVERSED)

COUNTY COURT DID NOT HAVE THE AUTHORITY TO REQUIRE DEFENDANT TO PAY COSTS ASSOCIATED WITH AN ALCOHOL-MONITORING BRACELET.

The Third Department, reversing County Court, determined County Court did not have the statutory authority to require defendant to pay for a Secure Continuous Remote Alcohol Monitoring (SCRAM) bracelet. Therefore revoking defendant’s probation and imposing a prison sentence based on defendant’s failure to make payments was error:

… [W]e are compelled to find “that County Court did not have statutory authority for requiring [defendant] to pay for the cost of the electronic monitoring program” … . While County Court can require a defendant to submit to the use of an electronic monitoring device if it determines that such a condition would advance public safety (see Penal Law § 65.10 [4]), it could not require a defendant to pay the costs associated with such monitoring since such costs do not fall within the category of restitution, but are more in the nature of a law enforcement expense … . People v Hakes, 2016 NY Slip Op 06905, 3rd Dept 10-20-16

CRIMINAL LAW (COUNTY COURT DID NOT HAVE THE AUTHORITY TO REQUIRE DEFENDANT TO PAY COSTS ASSOCIATED WITH AN ALCOHOL-MONITORING BRACELET)/SCRAM BRACELET (COUNTY COURT DID NOT HAVE THE AUTHORITY TO REQUIRE DEFENDANT TO PAY COSTS ASSOCIATED WITH AN ALCOHOL-MONITORING BRACELET)

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ADMISSIBILITY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539.

CRIMINAL LAW, EVIDENCE, CIVIL PROCEDURE.

The Court of Appeals determined evidence which was originally generated in electronic form was admissible under CPLR 4518 (a) and CPLR 4539 (b) applies only to documents originally in hard copy and subsequently scanned into digital form. The document in question was a record of testing of the simulator solution used during an alcohol breath test:

County Court correctly held that the applicable statute is CPLR 4518 (a), which was amended in 2002 (see L 2002, ch 136, § 1) to provide that an “electronic record . . . shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record” (CPLR 4518 [a]). The statute further provides that the court “may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record,” but “[a]ll other circumstances of the making of the memorandum or record. . . may be proved to affect its weight,” and “shall not affect its admissibility” (id. [emphasis added]).

The 2002 amendment to CPLR 4518 (a) was adopted by the legislature upon the recommendation of the Chief Administrative Judge’s Advisory Committee on Civil Practice specifically because the Committee and the legislature concluded that CPLR 4539 (b) had no application to documents originally created in electronic form. People v Kangas, 2016 NY Slip Op 06857, CtApp 10-20-16

 

CRIMINAL LAW (DWI, BREATH TEST, ADMISSIBILITYY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539)/EVIDENCE (CRIMINAL LAW, DWI, BREATH TEST, ADMISSIBILITYY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539)DWI (BREATH TEST,  ADMISSIBILITYY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539)/BREATH TEST (DWI, ADMISSIBILITYY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539)/CIVIL PROCEDURE (CRIMINAL LAW, DWI, BREATH TEST, ADMISSIBILITYY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539)

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FAILURE TO PROVIDE MEANINGFUL NOTICE OF THE CONTENTS OF A JURY NOTE IS A MODE OF PROCEEDINGS ERROR WHICH NEED NOT BE PRESERVED; FAILURE TO PROVIDE A MEANINGFUL RESPONSE TO A JURY NOTE, HOWEVER, IS NOT A MODE OF PROCEEDINGS ERROR AND MUST BE PRESERVED BY OBJECTION.

The Court of Appeals, reversing the Appellate Division, determined the trial judge’s acceptance of a verdict before responding to the jury’s request for a readback was not a mode of proceedings error and therefore must be preserved by objection. Just prior to the verdict, the judge had read the jury’s request verbatim in the presence of counsel, defendant and the jury. The judge’s failure to respond to the request (unlike a failure to apprise the parties of the contents of the request) is not a mode of proceedings error:

… “[W]here counsel has meaningful notice of the content of a jury note and of the trial court’s response, or lack thereof, to that note, the court’s alleged violation of the meaningful response requirement does not constitute a mode of proceedings error, and counsel is required to preserve any claim of error for appellate review” … .

Here, the trial court complied with its responsibility to provide counsel with meaningful notice of the jury’s notes by reading the notes verbatim into the record in the presence of counsel, defendant, and the jury … . Inasmuch as counsel had meaningful notice of the jury notes, the trial court’s failure to provide a response to the jury’s outstanding request for a readback of testimony before accepting the verdict does not constitute a mode of proceedings error … . Counsel was required to object to preserve any claim of error for this Court’s review. “Although the court’s procedure here may have been error, it was not a mode of proceedings error, and we have no jurisdiction to review it” .. . . People v Wiggs, 2016 NY Slip Op 06860, CtApp 10-20-16

CRIMINAL LAW (FAILURE TO PROVIDE MEANINGFUL NOTICE OF THE CONTENTS OF A JURY NOTE IS A MODE OF PROCEEDINGS ERROR WHICH NEED NOT BE PRESERVED; FAILURE TO PROVIDE A MEANINGFUL RESPONSE TO A JURY NOTE, HOWEVER, IS NOT A MODE OF PROCEEDINGS ERROR AND MUST BE PRESERVED BY OBJECTION)/APPEALS (CRIMINAL LAW, FAILURE TO PROVIDE MEANINGFUL NOTICE OF THE CONTENTS OF A JURY NOTE IS A MODE OF PROCEEDINGS ERROR WHICH NEED NOT BE PRESERVED; FAILURE TO PROVIDE A MEANINGFUL RESPONSE TO A JURY NOTE, HOWEVER, IS NOT A MODE OF PROCEEDINGS ERROR AND MUST BE PRESERVED BY OBJECTION)/JURY NOTES (CRIMINAL LAW, FAILURE TO PROVIDE MEANINGFUL NOTICE OF THE CONTENTS OF A JURY NOTE IS A MODE OF PROCEEDINGS ERROR WHICH NEED NOT BE PRESERVED; FAILURE TO PROVIDE A MEANINGFUL RESPONSE TO A JURY NOTE, HOWEVER, IS NOT A MODE OF PROCEEDINGS ERROR AND MUST BE PRESERVED BY OBJECTION)/MODE OF PROCEEDINGS ERROR (FAILURE TO PROVIDE MEANINGFUL NOTICE OF THE CONTENTS OF A JURY NOTE IS A MODE OF PROCEEDINGS ERROR WHICH NEED NOT BE PRESERVED; FAILURE TO PROVIDE A MEANINGFUL RESPONSE TO A JURY NOTE, HOWEVER, IS NOT A MODE OF PROCEEDINGS ERROR AND MUST BE PRESERVED BY OBJECTION)

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DEFENDANT’S SPEEDY TRIAL ARGUMENT PRESERVED BY A HEARING; HAD THE HEARING NOT BEEN HELD, HOWEVER, DEFENDANT’S FAILURE TO REPLY TO THE PEOPLE’S EXPLANATION OF THE DELAY WOULD HAVE RENDERED THE ARGUMENT UNPRESERVED.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined defendant’s speedy trial argument was preserved for review and affirmed dismissal of the indictment on speedy trial grounds. In response to defendant’s motion to dismiss, the People produced an explanation of the delay in seeking the indictment (witness out of the country). The defendant did not reply to the People’s explanation. But a hearing on the speedy trial motion was subsequently held. The Court of Appeals found that the issue was preserved by the hearing. The court noted, however, had there been no hearing, the defendant’s failure to reply to the People’s explanation of the delay would have rendered the issue unpreserved. A defendant, therefore, should always reply to the People’s explanation of a delay:

In the absence of a hearing, a defendant’s substantive CPL 30.30 arguments will be unpreserved where the defendant failed to otherwise raise them, for instance, “in his initial submission or in a reply” … . Accordingly, a defendant would be well-advised to raise any CPL 30.30 arguments in a reply so as to ensure their preservation. For instance, where a defendant mistakenly believes that the People failed to “conclusively refute[]” his motion (CPL 210.45[5][c]) — and therefore opts not to reply — the defendant risks summary denial of his motion, leaving him with an unsuccessful and unpreserved claim. However, a defendant’s failure to reply is not fatal to his claim where, as here, the defendant properly requests and receives a hearing and, at that hearing, his arguments are raised and developed … . People v Allard, 2016 NY Slip Op 06853, CtApp 10-20-16

 

CRIMINAL LAW (DEFENDANT’S SPEEDY TRIAL ARGUMENT PRESERVED BY A HEARING; HAD THE HEARING NOT BEEN HELD, HOWEVER, DEFENDANT’S FAILURE TO REPLY TO THE PEOPLE’S EXPLANATION OF THE DELAY WOULD HAVE RENDERED THE ARGUMENT UNPRESERVED)/APPEALS (CRIMINAL LAW, (DEFENDANT’S SPEEDY TRIAL ARGUMENT PRESERVED BY A HEARING; HAD THE HEARING NOT BEEN HELD, HOWEVER, DEFENDANT’S FAILURE TO REPLY TO THE PEOPLE’S EXPLANATION OF THE DELAY WOULD HAVE RENDERED THE ARGUMENT UNPRESERVED)/SPEEDY TRIAL (DEFENDANT’S SPEEDY TRIAL ARGUMENT PRESERVED BY A HEARING; HAD THE HEARING NOT BEEN HELD, HOWEVER, DEFENDANT’S FAILURE TO REPLY TO THE PEOPLE’S EXPLANATION OF THE DELAY WOULD HAVE RENDERED THE ARGUMENT UNPRESERVED)

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DEFENSE COUNSEL NOT ENTITLED TO FULL NAMES OF ALL PERSONS WHOSE INITIALS APPEAR ON A DNA LAB REPORT; WRIT OF PROHIBITION ISSUED RE: JUDGE WHO ORDERED DISCLOSURE.

The Second Department determined the People were entitled to a writ of prohibition re: a County Court Judge’s order that they produce the names of all lab personnel whose initials appeared on lab report concerning DNA test results. The People had notified defense counsel persons at the lab had cheated on an exam for certification for use of a DNA software program. The software program was not used in defendant’s case. The People provided defense counsel with the names of the two persons implicated in the cheating whose initials appeared on the lab report. Defense counsel requested the names of all the persons whose initials were on the report. County Court granted that request:

…[T]he only relevant inquiry is whether or not [the judge’s] actions exceeded his authorized powers … . We conclude that Judge De Rosa exceeded his authority by directing the People to make available to the defendant the full names corresponding to the initials that appear on the subject laboratory reports … . Nothing contained in CPL 240.20 imposes an obligation on the People to respond to the defendant’s questions concerning notations that appear in discoverable materials, or to affirmatively create or compile material, or obtain it from sources beyond their control … . Matter of Hoovler v De Rosa, 2016 NY Slip Op 06830, 2nd Dept 10-19-16

 

JUDGES (WRIT OF PROHIBITION, DEFENSE COUNSEL NOT ENTITLED TO FULL NAMES OF ALL PERSONS WHOSE INITIALS APPEAR ON A DNA LAB REPORT; WRIT OF PROHIBITION ISSUED RE: JUDGE WHO ORDERED DISCLOSURE)/CRIMINAL LAW (EVIDENCE, WRIT OF PROHIBITION, DEFENSE COUNSEL NOT ENTITLED TO FULL NAMES OF ALL PERSONS WHOSE INITIALS APPEAR ON A DNA LAB REPORT; WRIT OF PROHIBITION ISSUED RE: JUDGE WHO ORDERED DISCLOSURE)/EVIDENCE (CRIMINAL LAW, WRIT OF PROHIBITION, DEFENSE COUNSEL NOT ENTITLED TO FULL NAMES OF ALL PERSONS WHOSE INITIALS APPEAR ON A DNA LAB REPORT; WRIT OF PROHIBITION ISSUED RE: JUDGE WHO ORDERED DISCLOSURE)/PROHIBITION, WRIT OF (CRIMINAL LAW, EVIDENCE, DEFENSE COUNSEL NOT ENTITLED TO FULL NAMES OF ALL PERSONS WHOSE INITIALS APPEAR ON A DNA LAB REPORT; WRIT OF PROHIBITION ISSUED RE: JUDGE WHO ORDERED DISCLOSURE

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