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ALLEGED VICTIM OF ASSAULT PROPERLY ALLOWED TO TESTIFY FROM EGYPT VIA SKYPE.

The First Department determined the alleged victim of an assault was properly allowed to testify by Skype from Egypt. The victim had been prohibited from returning to the US from Egypt and the prosecutor had done everything possible to facilitate his return:

We conclude that, given the unusual circumstances of this case, and the prosecutor’s good faith, the People made the specific, individualized showing necessary to justify remote video testimony. The Confrontation Clause’s general guarantee of face-to-face testimony is not absolute … . Video testimony is permissible “provided there is an individualized determination that denial of physical, face-to-face confrontation is necessary to further an important public policy and the reliability of the testimony is otherwise assured” (People v Wrotten, 14 NY3d 33…). Moreover, in Wrotten, the Court of Appeals recognized that video testimony could be employed in circumstances other than those involving a vulnerable child witness or a witness who was too ill to appear in court, as was the case in Wrotten (id. at 39-40).

Defendant concedes that the two-way video testimony at issue “preserve[d] the essential safeguards of testimonial reliability” … . The dispositive question is whether the testimony was ” necessary to further an important public policy'” … , which, in this case, is “the public policy of justly resolving criminal cases” … , a showing that must be made by clear and convincing evidence … . People v Giurdanella, 2016 NY Slip Op 07577, 1st Dept 11-15-16

 

CRIMINAL LAW (ALLEGED VICTIM OF ASSAULT PROPERLY ALLOWED TO TESTIFY FROM EGYPT VIA SKYPE)/EVIDENCE (CRIMINAL LAW, ALLEGED VICTIM OF ASSAULT PROPERLY ALLOWED TO TESTIFY FROM EGYPT VIA SKYPE)/VIDEO, REMOTE TESTIMONY (CRIMINAL LAW, ALLEGED VICTIM OF ASSAULT PROPERLY ALLOWED TO TESTIFY FROM EGYPT VIA SKYPE/SKYPE (CRIMINAL LAW, ALLEGED VICTIM OF ASSAULT PROPERLY ALLOWED TO TESTIFY FROM EGYPT VIA SKYPE)

STRICT LIABILITY OFFENSE CANNOT SERVE AS A PREDICATE FELONY FOR FELONY ASSAULT.

The First Department determined a strict liability offense cannot serve as a predicate felony for felony assault. The defendant was charged with the unauthorized practice of medicine (Education Law 6512) which resulted in the serious injury of one victim and the death of another. Because the Education Law offense is a strict liability offense (no mens rea requirement), it cannot serve as the basis for felony assault:

An assault committed during the course of a felony that causes serious physical injury to the victim may be charged as felony assault under Penal Law § 120.10(4). The Court of Appeals has explained that, under the doctrine of constructive malice, the mens rea element of the assault charge is satisfied by the mens rea element of the predicate felony … . …

Education Law § 6512(1) does not contain a mens rea element and solely requires a voluntary act of the unauthorized practice of medicine … . Accordingly, Supreme Court correctly held that the felony of the unauthorized practice of medicine cannot serve as a predicate felony to support the felony assault charges.

Further, although the Penal Law states that a “statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability” (Penal Law § 15.15[2]), the felony of unauthorized practice of medicine was created by the legislature as part of a comprehensive regulatory scheme to require licensing for occupations that pose safety risks to the public. These malum prohibitum crimes are generally construed as strict liability crimes, as a mens rea element would negatively affect enforcement of these statutes and minimize their impact … . People v Mobley, 2016 NY Slip Op 07576, 1st Dept 11-15-16

 

CRIMINAL LAW (STRICT LIABILITY OFFENSE CANNOT SERVE AS A PREDICATE FELONY FOR FELONY ASSAULT)/UNAUTHORIZED PRACTICE OF MEDICINE (STRICT LIABILITY OFFENSE CANNOT SERVE AS A PREDICATE FELONY FOR FELONY ASSAULT)/FELONY ASSAULT (STRICT LIABILITY OFFENSE CANNOT SERVE AS A PREDICATE FELONY FOR FELONY ASSAULT)

DENIAL OF PAROLE PROPERLY ANNULLED, NEW HEARING BEFORE DIFFERENT COMMISSIONERS ORDERED.

The First Department, in a full-fledged opinion by Justice Gesmer, affirmed Supreme Court’s annulment of parole denial and ordered a new hearing before different commissioners. Petitioner shot and killed her husband. Evidence presented at trial indicated she had been abused by her husband for many years and her husband was threatening severe abuse at the time of the shooting. Petitioner earned two college degrees while in prison, participated in every available rehabilitation program, taught other inmates, served on a grievance committee, successfully worked for the Department of Motor Vehicles and testing indicated it was highly unlikely she would re-offend. Yet she was denied parole three times:

Based on the record before us, we conclude that the motion court correctly determined that the Board acted with an irrationality bordering on impropriety in denying petitioner parole. The Board focused exclusively on the seriousness of petitioner’s conviction and the decedent’s family’s victim impact statements (which it incorrectly described as “community opposition to her release”) without giving genuine consideration to petitioner’s remorse, institutional achievements, release plan, and her lack of any prior violent criminal history.

The Board’s statement that, “[d]espite your assertions of abuse being rejected by a jury after hearing you testify for eight days, and having no corroboration on record of the abuse, you continue to blame your victim for his death,” disregards petitioner’s testimony accepting responsibility and expressing remorse for her actions. It also fails to recognize that petitioner may legitimately view herself as a battered woman, even though the jury did not find that she met New York’s exacting requirements for the defenses of justification (Penal Law § 35.15[2]) and extreme emotional disturbance (Penal Law § 125.25[1][a]). * * * …[W]e agree with the motion court that apologizing for the shooting while steadfastly maintaining that she was an abuse victim does not indicate a lack of remorse for her actions. Matter of Rossakis v New York State Bd. of Parole, 2016 NY Slip Op 07415, 1st Dept 10-10-16

 

CRIMINAL LAW (DENIAL OF PAROLE PROPERLY ANNULLED, NEW HEARING BEFORE DIFFERENT COMMISSIONERS ORDERED)/PAROLE (DENIAL OF PAROLE PROPERLY ANNULLED, NEW HEARING BEFORE DIFFERENT COMMISSIONERS ORDERED)

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RECORDED STATEMENTS MADE TO THE MOTHER OF DEFENDANT’S CHILDREN, WHO WAS ACTING AS A POLICE AGENT AT THE TIME THE STATEMENTS WERE MADE, REQUIRED THE REOPENING OF THE HUNTLEY HEARING, CASE REMITTED.

The Fourth Department sent the case back for a reopened Huntley hearing concerning recorded statements made by the defendant to the mother of defendant’s children, who was acting as a police agent at the time the statements were made. The statements were under a protective order until two weeks before the trial. The defendant was convicted of the murder of a man he mistakenly believed was having a relationship with the mother of his children:

… [T]he court erred in failing to reopen the Huntley hearing at defense counsel’s request with respect to recorded statements that he made to an agent of the police (see CPL 60.45 [2] [b] [i], [ii]), i.e., the mother of his children, which were the subject of a protective order until approximately two weeks before trial. Because the admission of those statements at trial cannot be deemed harmless error … , we hold the case, reserve decision and remit the matter to Supreme Court to reopen the Huntley hearing with respect to those recorded statements … . People v Mitchell, 2016 NY Slip Op 07543, 4th Dept 11-10-16

CRIMINAL LAW (RECORDED STATEMENTS MADE TO THE MOTHER OF DEFENDANT’S CHILDREN, WHO WAS ACTING AS A POLICE AGENT AT THE TIME THE STATEMENTS WERE MADE, REQUIRED THE REOPENING OF THE HUNTLEY HEARING)/EVIDENCE (CRIMINAL LAW, RECORDED STATEMENTS MADE TO THE MOTHER OF DEFENDANT’S CHILDREN, WHO WAS ACTING AS A POLICE AGENT AT THE TIME THE STATEMENTS WERE MADE, REQUIRED THE REOPENING OF THE HUNTLEY HEARING)/HUNTLEY HEARING (RECORDED STATEMENTS MADE TO THE MOTHER OF DEFENDANT’S CHILDREN, WHO WAS ACTING AS A POLICE AGENT AT THE TIME THE STATEMENTS WERE MADE, REQUIRED THE REOPENING OF THE HUNTLEY HEARING)

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STATEMENT WHICH WAS NOT IN THE 710.30 NOTICE, AND WHICH PROVIDED EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OF THE RESIDENCE WHERE DRUGS WERE FOUND, SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE.

The Fourth Department, over a two-justice dissent, determined a statement alleged to have been made during a search, but which was not part of the 710.30 notice, should not have been admitted at trial. The defendant was charged and convicted of constructive possession of drugs found in the searched residence. The statement indicated where defendant’s “own room was.” There was little or no other evidence defendant lived at the searched residence. The court rejected the argument that the statement was “pedigree information” and further rejected the argument that the search consent form, signed by the defendant, was an admission of his dominion and control of the residence:

The People served on defendant a CPL 710.30 notice of their intent to offer defendant’s admissions as evidence at trial and attached a police report to the notice. The police report referenced defendant’s statement to the deputies, during the search, that one of the bedrooms belonged to another person. At trial, however, the court permitted an investigator to testify that defendant “explained where his [own] room was,” referring to another of the bedrooms. Inasmuch as the CPL 710.30 notice did not cover that statement, the court’s ruling on that point was error (see CPL 710.30 [1]…). That error permitted the court to conclude that defendant was an occupant of the residence and, consequently, to find that defendant had constructive possession of the drugs found therein … . People v Buza, 2016 NY Slip Op 07423, 4th Dept 11-10-16

 

CRIMINAL LAW (STATEMENT WHICH WAS NOT IN THE 710.30 NOTICE, AND WHICH PROVIDED EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OF THE RESIDENCE WHERE DRUGS WERE FOUND, SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE)/710.30 NOTICE (STATEMENT WHICH WAS NOT IN THE 710.30 NOTICE, AND WHICH PROVIDED EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OF THE RESIDENCE WHERE DRUGS WERE FOUND, SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE)

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DEFENDANT’S REQUEST TO REPRESENT HIMSELF, MADE DURING JURY SELECTION, WAS TIMELY, SUMMARY REJECTION OF THE REQUEST WITHOUT ANY INQUIRY REQUIRED REVERSAL.

The First Department reversed defendant’s conviction because the trial judge did not make an inquiry into his request to represent himself. Defendant’s request was made during jury selection and was summarily rejected as untimely:

The right to self-representation … is subject to several restrictions … . Thus, “[a] defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” … . When a defendant timely invokes the right to self-representation, “the trial court should conduct a thorough inquiry to determine whether the waiver was made intelligently and voluntarily” … .

Judged by these principles, we conclude that defendant’s right to self-representation was violated. Contrary to the trial court’s finding, defendant’s requests to proceed pro se, made during jury selection, were timely asserted … . People v Crespo, 2016 NY Slip Op 07396, 1st Dept 11-10-16

 

CRIMINAL LAW (DEFENDANT’S REQUEST TO REPRESENT HIMSELF, MADE DURING JURY SELECTION, WAS TIMELY, SUMMARY REJECTION OF THE REQUEST WITHOUT ANY INQUIRY REQUIRED REVERSAL)/ATTORNEYS (CRIMINAL LAW, DEFENDANT’S REQUEST TO REPRESENT HIMSELF, MADE DURING JURY SELECTION, WAS TIMELY, SUMMARY REJECTION OF THE REQUEST WITHOUT ANY INQUIRY REQUIRED REVERSAL)/PRO SE (CRIMINAL LAW, DEFENDANT’S REQUEST TO REPRESENT HIMSELF, MADE DURING JURY SELECTION, WAS TIMELY, SUMMARY REJECTION OF THE REQUEST WITHOUT ANY INQUIRY REQUIRED REVERSAL)

SANDOVAL HEARING HELD IN DEFENDANT’S ABSENCE REQUIRED DISMISSAL OF THE INDICTMENT, PLACING THE RESULTS OF THE HEARING ON THE RECORD IN DEFENDANT’S PRESENCE DID NOT RECTIFY THE DEFECT.

The Fourth Department determined holding the Sandoval hearing in the defendant’s absence required dismissal of the indictment (without prejudice to file another charge):

We agree with defendant that Supreme Court erred in conducting the Sandoval hearing in his absence … . The court’s Sandoval ruling in this case was not wholly favorable to defendant, and thus “it cannot be said that defendant’s presence at the hearing would have been superfluous” … . Contrary to the People’s contention, although the court placed its Sandoval ruling on the record in defendant’s presence the morning after the hearing, “[a] mere repetition or recitation in the defendant’s presence of what has already been determined in [the defendant’s] absence is insufficient compliance with the Sandoval rule” … . People v Gardner, 2016 NY Slip Op 07469, 4th Dept 11-10-16

CRIMINAL LAW (SANDOVAL HEARING HELD IN DEFENDANT’S ABSENCE REQUIRED DISMISSAL OF THE INDICTMENT, PLACING THE RESULTS OF THE HEARING ON THE RECORD IN DEFENDANT’S PRESENCE DID NOT RECTIFY THE DEFECT)/SANDOVAL HEARING (SANDOVAL HEARING HELD IN DEFENDANT’S ABSENCE REQUIRED DISMISSAL OF THE INDICTMENT, PLACING THE RESULTS OF THE HEARING ON THE RECORD IN DEFENDANT’S PRESENCE DID NOT RECTIFY THE DEFECT)

ADVANCES IN MEDICINE AND SCIENCE CALL INTO QUESTION PREVIOUS OPINIONS ABOUT SHAKEN BABY SYNDROME, MOTION TO VACATE DEFENDANT’S CONVICTION GRANTED AND NEW TRIAL ORDERED.

The Fourth Department affirmed the grant of defendant’s motion to vacate her conviction based on newly-discovered evidence. Defendant, a daycare provider, was convicted in the death of a toddler. Medical testimony at trial attributed the death to shaken baby syndrome. In the motion to vacate her conviction, defendant argued that advances in medicine and science have called into question the prior opinions about shaken baby syndrome, and indicate a short-distance fall can mimic the shaken baby symptoms:

In general, advancements in science and/or medicine may constitute newly discovered evidence … , and we conclude that defendant established, by a preponderance of the evidence (see CPL 440.30 [6]), that “a significant and legitimate debate in the medical community has developed in the past ten years over whether infants [and toddlers] can be fatally injured through shaking alone, . . . and whether other causes [such as short-distance falls] may mimic the symptoms traditionally viewed as indicating shaken baby or shaken impact syndrome” … .

We further conclude that defendant established, by a preponderance of the evidence (see CPL 440.30 [6]), that the newly discovered evidence would probably change the result if a new trial were held today. “A motion to vacate a judgment of conviction upon the ground of newly discovered evidence rests within the discretion of the hearing court . . . The court must make its final decision based upon the likely cumulative effect of the new evidence had it been presented at trial’ ” … . Here, the cumulative effect of the research and findings on retinal hemorrhages, subdural hematomas or hemorrhages and cerebral edemas as presented in SBS/SBIS cases and short-distance fall cases supports the court’s ultimate decision that, had this evidence been presented at trial, the verdict would probably have been different … . People v Bailey, 2016 NY Slip Op 07490, 4th Dept 11-101-6

 

CRIMINAL LAW (ADVANCES IN MEDICINE AND SCIENCE CALL INTO QUESTIONS PREVIOUS OPINIONS ABOUT SHAKEN BABY SYNDROME, MOTION TO VACATE DEFENDANT’S CONVICTION GRANTED AND NEW TRIAL ORDER)/VACATE CONVICTION, MOTION TO (ADVANCES IN MEDICINE AND SCIENCE CALL INTO QUESTIONS PREVIOUS OPINIONS ABOUT SHAKEN BABY SYNDROME, MOTION TO VACATE DEFENDANT’S CONVICTION GRANTED AND NEW TRIAL ORDER)/SHAKEN BABY SYNDROME (ADVANCES IN MEDICINE AND SCIENCE CALL INTO QUESTIONS PREVIOUS OPINIONS ABOUT SHAKEN BABY SYNDROME, MOTION TO VACATE DEFENDANT’S CONVICTION GRANTED AND NEW TRIAL ORDER)

DEFENDANT’S GUILTY PLEA COERCED BY JUDGE’S REMARKS ABOUT A POTENTIAL SENTENCE AFTER TRIAL.

The Fourt Department vacated defendant’s guilty plea, finding the trial judge’s comments about the possible sentence after trial amounted to coercion:

Pursuant to the terms of the plea agreement, defendant entered his guilty plea in satisfaction of the indictment by which he was charged with, inter alia, murder in the second degree (§ 125.25 [1]), and County Court imposed a determinate term of incarceration of 25 years. During discussions over the plea offer, the court addressed the possibility of a jury convicting defendant of the lesser included offense of manslaughter in the first degree by stating: “[Y]ou wouldn’t get any better than 25 [years] if you get a manslaughter. That’s a big if.’ ” Defendant contends that the court erred in denying his motion to withdraw his guilty plea on the ground that it was coerced. We agree. “[T]he court’s statements do not amount to a description of the range of potential sentences but, rather, they constitute impermissible coercion, rendering the plea involuntary and requiring its vacatur” … . People v Williams, 2016 NY Slip Op 07450, 4th Dept 11-10-16

CRIMINAL LAW (DEFENDANT’S GUILTY PLEA COERCED BY JUDGE’S REMARKS ABOUT A POTENTIAL SENTENCE AFTER TRIAL)/GUILTY PLEA (DEFENDANT’S GUILTY PLEA COERCED BY JUDGE’S REMARKS ABOUT A POTENTIAL SENTENCE AFTER TRIAL)

RECORD SILENT ON WHETHER DEFENSE COUNSEL WAS APPRISED OF A JURY NOTE, MURDER CONVICTION REVERSED.

The Fourth Department determined a mode of proceedings error required reversal of a murder conviction. The record was silent about whether defense counsel was apprised of the contents of a jury note requesting further instruction:

… [A] mode of proceedings error occurred and reversal is required because the record fails to show that defense counsel was advised of the contents of a jury note requesting, inter alia, further instruction on reasonable doubt, murder in the second degree and manslaughter in the first degree … . Moreover, because the record does not establish that the court advised defense counsel of the contents of the note, we cannot assume that the court complied with its core responsibilities pursuant to CPL 310.30 and People v O’Rama (78 NY2d 270) … . People v Owens, 2016 NY Slip Op 07431, 4th Dept 11-10-16

 

CRIMINAL LAW (RECORD SILENT ON WHETHER DEFENSE COUNSEL WAS APPRISED OF A JURY NOTE, MURDER CONVICTION REVERSED)/JURY NOTE (RECORD SILENT ON WHETHER DEFENSE COUNSEL WAS APPRISED OF A JURY NOTE, MURDER CONVICTION REVERSED)/MODE OF PROCEEDINGS ERROR (RECORD SILENT ON WHETHER DEFENSE COUNSEL WAS APPRISED OF A JURY NOTE, MURDER CONVICTION REVERSED)

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