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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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DEFENDANT HAD STANDING TO CONTEST THE SEARCH, MATTER REMITTED FOR A SUPPRESSION HEARING BECAUSE AN APPELLATE COURT CANNOT CONSIDER A MATTER NOT RULED UPON BELOW.

The Second Department determined Supreme Court erred in finding defendant did not have standing to contest the search of a van. The court explained that it could not consider the merits of the suppression motion because the merits were not ruled upon by the court below. The options for handling this scenario were explained in some detail. The court opted to hold the appeal in abeyance and remit the matter for a suppression hearing:

This Court has deemed it appropriate to reverse or modify the judgment of conviction, rather than holding the appeal in abeyance, where no purpose would be served by holding the appeal and directing that a new determination be made. This is the case, for example, where a determination of the alternative issue would not change the ultimate determination of the suppression motion … , or where the trial court has already determined the alternative issue in the defendant’s favor, in which case the issue would, in all likelihood, be decided in the defendant’s favor again, and thus would remain unreviewable after remittal … . However, where, as here, the alternative issue raised by the People on appeal has not been determined by the trial court, and the resolution of that issue could affect the determination of the suppression motion, we deem it appropriate to hold the defendant’s appeal in abeyance and remit the matter for consideration of the alternative issue. People v Chazbani, 2016 NY Slip Op 07337, 2nd Dept 11-9-16

 

CRIMINAL LAW (DEFENDANT HAD STANDING TO CONTEST THE SEARCH, MATTER REMITTED FOR A SUPPRESSION HEARING BECAUSE AN APPELLATE COURT CANNOT CONSIDER A MATTER NOT RULED UPON BELOW)/APPEALS (CRIMINAL LAW, DEFENDANT HAD STANDING TO CONTEST THE SEARCH, MATTER REMITTED FOR A SUPPRESSION HEARING BECAUSE AN APPELLATE COURT CANNOT CONSIDER A MATTER NOT RULED UPON BELOW)

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ACCEPTING A VERDICT BEFORE REQUESTED TESTIMONY WAS READ BACK TO THE JURY WAS NOT A MODE OF PROCEEDINGS ERROR AND WAS NOT PRESERVED FOR REVIEW.

The Third Department determined any error associated with a jury-request for a readback of testimony not a mode of proceedings error and was unpreserved for review. Before the requested testimony was readback, the jury indicated it had reached a verdict. The verdict was accepted without the readback taking place:

The court read the note from the jury verbatim and announced its intention to permit a readback of the requested testimony one witness at a time, to which defense counsel did not object. In explaining the procedure to the jury, the court stated, “once you’ve heard the first readback . . . it might answer your questions” and explained that the jury could return to deliberations while the court reporter prepared additional testimony for readback, to which defense counsel did not object. After the readback of the relevant portions of one witness’s testimony, and presumably while the court reporter was preparing additional testimony for readback, the jury informed the court that it had reached a verdict. As defendant concedes, no mode of proceedings error occurred … , and, thus, defendant’s failure to lodge any complaint to any of the steps that the court took to respond to the request renders the issue unpreserved for our review … . Moreover, defendant’s current contention that the court should not have allowed the jury to reach a verdict until the entire readback had been completed is unavailing. By informing the court that it had reached a verdict prior to the completion of the readback, the jury unambiguously indicated that it was no longer in need of previously requested information … . People v Robtoy, 2016 NY Slip Op 07232, 3rd Dept 11-3-16

CRIMINAL LAW (ACCEPTING A VERDICT BEFORE REQUESTED TESTIMONY WAS READ BACK TO THE JURY WAS NOT A MODE OF PROCEEDINGS ERROR AND WAS UNPRESERVED FOR REVIEW)/APPEALS (CRIMINAL LAW, ACCEPTING A VERDICT BEFORE REQUESTED TESTIMONY WAS READ BACK TO THE JURY WAS NOT A MODE OF PROCEEDINGS ERROR AND WAS UNPRESERVED FOR REVIEW)

MISDEMEANOR COMPLAINT ADEQUATELY ALLEDGED POSSESSION OF BRASS KNUCKLES.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined the misdemeanor complaint sufficiently alleged possession of “brass knuckles:”

“[A] reasonable, not overly technical reading” of the accusatory instrument here satisfies our sufficiency standard … , as it supplied “defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy” … . The accusatory instrument clearly informed defendant that he was in criminal possession of “brass metal knuckles,” a per se weapon, in violation of Penal Law § 265.01 (1). The term “brass metal knuckles” gave defendant a clear description of the object recovered from his pocket at a specific time and place. Under the common and natural definition of the term, as well as the dictionary definition, defendant was adequately informed of the charge against him. * * *

[T]he character of metal knuckles is such that one need only look at the object to discern whether it is in fact metal knuckles. Thus, the officer here did not have to “exercise . . . professional skill or experience” to conclude defendant possessed metal knuckles … , and the accusatory instrument did not require any specific description of the officer’s training or experience. People v Aragon, 2016 NY Slip Op 07104, CtApp 11-1-16

 

CRIMINAL LAW (MISDEMEANOR COMPLAINT ADEQUATELY ALLEDGED POSSESSION OF BRASS KNUCKLES)/MISDEMEANOR COMPLAINT (MISDEMEANOR COMPLAINT ADEQUATELY ALLEDGED POSSESSION OF BRASS KNUCKLES)/BRASS KNUCKLES (MISDEMEANOR COMPLAINT ADEQUATELY ALLEDGED POSSESSION OF BRASS KNUCKLES)

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