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GEORGIA BURGLARY STATUTE DOES NOT INCLUDE A KNOWLEDGE ELEMENT WHICH IS INCLUDED IN THE NEW YORK BURGLARY STATUTE; THE GEORGIA STATUTE CANNOT, THEREFORE, SERVE AS A PREDICATE FELONY.

The Fourth Department, over an extensive dissent, reversing County Court, determined defendant’s Georgia burglary conviction could not serve as a predicate felony in New York. The corresponding New York burglary statute required that a defendant knowingly enter or remain in a building with the intent to commit a crime. The knowledge element was not part of the Georgia statute:

Defendant pleaded guilty to burglary in 1999, at which time the Georgia burglary statute provided that “[a] person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another” (Ga Code Ann former § 16-7-1 [a]). The equivalent New York burglary statute provides that “[a] person is guilty of burglary . . . when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when . . . [t]he building is a dwelling” (Penal Law § 140.25 [2] [emphasis added]). Thus, on its face, the Georgia statute is lacking an essential element—knowledge that the entry or decision to remain is unlawful. Because New York law requires proof of an element that Georgia law does not, defendant’s Georgia conviction cannot serve as a predicate … . People v Helms, 2016 NY Slip Op 05463, 4th Dept 7-8-16

CRIMINAL LAW (GEORGIA BURGLARY STATUTE DOES NOT INCLUDE A KNOWLEDGE ELEMENT WHICH IS INCLUDED IN THE NEW YORK BURGLARY STATUTE; THE GEORGIA STATUTE CANNOT, THEREFORE, SERVE AS A PREDICATE FELONY)/SENTENCING (PREDICATE FELONY, GEORGIA BURGLARY STATUTE DOES NOT INCLUDE A KNOWLEDGE ELEMENT WHICH IS INCLUDED IN THE NEW YORK BURGLARY STATUTE; THE GEORGIA STATUTE CANNOT, THEREFORE, SERVE AS A PREDICATE FELONY)/SECOND FELONY OFFENDER (GEORGIA BURGLARY STATUTE DOES NOT INCLUDE A KNOWLEDGE ELEMENT WHICH IS INCLUDED IN THE NEW YORK BURGLARY STATUTE; THE GEORGIA STATUTE CANNOT, THEREFORE, SERVE AS A PREDICATE FELONY)

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NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF ARRESTING OFFICER REVERSED.

The Third Department reversed, in the interest of justice, defendant’s conviction for assault of a police officer (Smith) because the officer did not have reasonable suspicion defendant had committed a crime at the time defendant was detained. Defendant was involved in an argument with someone when the police approached and did not answer the officer’s questions:

Viewing the evidence in the light most favorable to the People … , we find no valid line of reasoning and permissible inferences from which a rational jury could have concluded that Smith possessed the requisite reasonable suspicion of criminality necessary to forcibly detain defendant. As defendant’s subsequent conduct in assaulting Smith “cannot validate an encounter that was not justified at its inception” … , the evidence was legally insufficient to establish that Smith was injured while undertaking a lawful duty, and defendant’s conviction must be reversed … . People v Tucker, 2016 NY Slip Op 05400, 3rd Dept 7-7-16

CRIMINAL LAW (NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/EVIDENCE (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/REASONABLE SUSPICION (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/STREET STOPS  (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/SUPRESSION (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSUALT OF POLICE OFFICER REVERSED)/POLICE OFFICERS (NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSUALT OF A POLICE OFFICER REVERSED)/RESISTING ARREST (NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/EVIDENCE (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)

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EVIDENCE COLLECTED AFTER REQUEST FOR COUNSEL SHOULD HAVE BEEN SUPPRESSED, NEW TRIAL ORDERED.

The Third Department determined statements made by and evidence collected from defendant after his request for counsel should have been suppressed in this vehicular homicide case. A new trial was ordered;

The People further conceded at oral argument that defendant invoked his constitutional and limited statutory right to counsel in response to those warnings and that, under the circumstances of this case, valid grounds existed to suppress his post-invocation statements and evidence related to the DRE [drug recognition evaluation], second breathalyzer and blood tests … . The erroneous admission of this evidence is reviewed under the harmless error doctrine, and such an error is considered harmless “when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict” … . The admissible evidence at trial established that defendant took twice his prescribed dosage of Clonazepam the morning of the accident and that he failed field sobriety tests administered at the scene. Nevertheless, inasmuch as defendant’s inadmissible statements, the recording of the DRE test and the evidence of the inadmissible test results themselves may well have contributed to the conviction, it cannot be said that the erroneous admission of that evidence was harmless … . People v Green, 2016 NY Slip Op 05399, 3rd Dept 7-7-16

 

GENERAL CONSTRUCTION LAW EXTENDS THE SIX-MONTH SPEEDY TRIAL DEADLINE IF THE LAST DAY FALLS ON A SATURDAY, SUNDAY OR A HOLIDAY.

The Third Department, in a full-fledged opinion by Justice Garry, clarified the application of General Construction Law 25-a to the six-month speedy trial time limit for felonies:

At issue here is the deadline by which the People must declare readiness when a defendant is charged with a felony. It has also been held that for General Construction Law § 25-a to apply in any factual circumstance, “there must be an initially ascertainable certain day from which reckoning may be made” … . CPL 30.30 (1) (a) specifies such an ascertainable day — that is, the commencement of a criminal action — from which the six-month period within which the People are required to declare readiness for trial is to be computed. Thus, we find that when the last day of the six-month period specified by CPL 30.30 (1) (a) falls upon a Saturday, Sunday or legal holiday, the expiration of the period in which the People must declare readiness is extended to the next succeeding business day pursuant to General Construction Law § 25-a. Here, the People’s second declaration of readiness was made on the next succeeding business day following the legal holiday upon which the six-month period expired; it was therefore timely and effective, and dismissal of the indictment was not required. People v Mandela, 2016 NY Slip Op 05401, 3rd Dept 7-7-16

CRIMINAL LAW (GENERAL CONSTRUCTION LAW EXTENDS THE SIX-MONTH SPEEDY TRIAL DEADLINE IF THE LAST DAY FALLS ON A SATURDAY, SUNDAY OR A HOLIDAY)/SPEEDY TRIAL (GENERAL CONSTRUCTION LAW EXTENDS THE SIX-MONTH SPEEDY TRIAL DEADLINE IF THE LAST DAY FALLS ON A SATURDAY, SUNDAY OR A HOLIDAY)/GENERAL CONSTRUCTION LAW (SPEEDY TRIAL DEADLINE, GENERAL CONSTRUCTION LAW EXTENDS THE SIX-MONTH SPEEDY TRIAL DEADLINE IF THE LAST DAY FALLS ON A SATURDAY, SUNDAY OR A HOLIDAY)

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SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS.

The Second Department determined criminal contempt charges rendered the indictment multiplicitous. The charge offense was a continuing offense and there was no interruption in the course of conduct:

An indictment is multiplicitous ” when a single offense is charged in more than one count'” … . In addition, “[a]n indictment cannot charge a defendant with more than one count of a crime that can be characterized as a continuing offense unless there has been an interruption in the course of conduct” … . Here, counts 4, 5, 6, 7, 8, 9, 10, and 11 of the indictment are multiplicitous of count three since those counts allege a continuous offense consisting of the defendant’s repeated telephone calls, over a nine-month period, with the intent to harass, annoy, threaten, or alarm the victim (see Penal Law § 215.51[b][iv]). The dates used by the prosecution to divide the counts did not establish that there was an interruption in the course of conduct … . People v Young, 2016 NY Slip Op 05395, 2nd Dept 7-6-16

CRIMINAL LAW (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/EVIDENCE (CRIMINAL LAW, SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/MULTIPLICITOUS INDICTMENT (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/INDICTMENTS (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/CONTINUING OFFENSE (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/CONTEMPT (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)

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PEOPLE REBUTTED PRESUMPTION UNPRESERVED PHOTO ARRAY WAS UNDULY SUGGESTIVE.

The Second Department determined the People had rebutted the presumption that unpreserved photo arrays were unduly suggestive:

… [A]lthough the People’s failure to preserve the photographic arrays displayed through the use of the photo manager system gives rise to a presumption of suggestiveness, the People nevertheless rebutted that presumption and sustained their initial burden of production through the testimony of the police officer who administered the photo identification procedure. The officer testified that the complainant’s daughter was shown computer-generated photo arrays shortly after the attack occurred. The officer further testified as to the specific information that was entered into the photo manager system, which included the perpetrator’s race and approximate age, height, and weight … . The officer testified that approximately 230 photographs fit the search criteria that was entered into the photo manager system and that these photographs were displayed in arrays consisting of six photographs at a time. Under the circumstances, the People sustained their initial burden of demonstrating the reasonableness of the police conduct and the lack of any undue suggestiveness … . Furthermore, upon our review of the record of the hearing, we conclude that the defendant failed to sustain his ultimate burden of proving that the photo identification procedure was unduly suggestive … . People v Busano, 2016 NY Slip Op 05385, 2nd Dept 7-6-16

CRIMINAL LAW (PEOPLE REBUTTED PRESUMPTION UNPRESERVED PHOTO ARRAY WAS UNDULY SUGGESTIVE)/EVIDENCE (CRIMINAL LAW, PEOPLE REBUTTED PRESUMPTION UNPRESERVED PHOTO ARRAY WAS UNDULY SUGGESTIVE)/PHOTO ARRAYS (PEOPLE REBUTTED PRESUMPTION UNPRESERVED PHOTO ARRAY WAS UNDULY SUGGESTIVE)/IDENTIFICATION (CRIMINAL LAW, PEOPLE REBUTTED PRESUMPTION UNPRESERVED PHOTO ARRAY WAS UNDULY SUGGESTIVE)

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PROSECUTORIAL MISCONDUCT WARRANTED REVERSAL IN THE INTEREST OF JUSTICE.

The Second Department reversed defendant’s conviction in the interest of justice because of the prosecutor’s misconduct. The decision went into great detail describing the substance of the misconduct (not summarized here):

… [T]he judgment of conviction must be reversed and a new trial ordered as a result of pervasive prosecutorial misconduct. During opening statements as well as on summation, the prosecutor repeatedly engaged in improper conduct, including misstating the evidence, vouching for the credibility of witnesses with regard to significant aspects of the People’s case, calling for speculation by the jury, seeking to inflame the jury and arouse its sympathy, and improperly denigrating the defense … . Although objections to some of the remarks below were sustained, we nevertheless include them in order to provide a more complete picture of the pervasiveness of the misconduct at issue on this appeal. People v Redd, 2016 NY Slip Op 05392, 2nd Dept 7-6-16

CRIMINAL LAW (PROSECUTORIAL MISCONDUCT WARRANTED REVERSAL IN THE INTEREST OF JUSTICE)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT WARRANTED REVERSAL IN THE INTEREST OF JUSTICE)/PROSECUTORIAL MISCONDUCT (PROSECUTORIAL MISCONDUCT, WARRANTED REVERSAL IN THE INTEREST OF JUSTICE)

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5 1/2 YEAR DELAY BEFORE INDICTMENT ADEQUATELY EXPLAINED; HEARSAY EVIDENCE OF THIRD-PARTY CULPABILITY PROPERLY EXCLUDED AS UNRELIABLE.

The First Department determined the People offered an adequate explanation of the 5 1/2 year delay between when defendant’s DNA was matched to evidence collected from the victims and the indictment. The court further determined the hearsay evidence of third-party culpability was properly excluded as unreliable:

In the intervening years, the prosecution had sought to obtain evidence to strengthen their case, which was based on circumstantial evidence, and the investigative delays were satisfactorily explained … . Furthermore, the resulting prejudice, if any, was minimal. While one potential witness, of questionable reliability, told police that two other men had committed the crimes, and that witness died during the period of delay at issue, the jury nevertheless heard testimony that one of those men had been arrested early in the case. Moreover, ‘a determination made in good faith to delay prosecution for sufficient reasons will not deprive defendant of due process even though there may be some prejudice to defendant’ … .

The court properly exercised its discretion in denying, on the ground of lack of sufficient indicia of reliability, defendant’s motion to admit hearsay evidence of third-party culpability … . The declarant, the above-discussed man who died during the pendency of the investigation, contradicted himself in numerous statements … . Moreover, other evidence in the case directly undermined the reliability of his statements. People v Fleming, 2016 NY Slip Op 05334, 1st Dept 7-5-16

CRIMINAL LAW (5 1/2 YEAR DELAY BEFORE INDICTMENT ADEQUATELY EXPLAINED; HEARSAY EVIDENCE OF THIRD-PARTY CULPABILITY PROPERLY EXCLUDED AS UNRELIABLE)/EVIDENCE (CRIMINAL LAW, HEARSAY EVIDENCE OF THIRD-PARTY CULPABILITY PROPERLY EXCLUDED AS UNRELIABLE)/PRE-INDICTMENT DELAY (5 1/2 YEAR DELAY BEFORE INDICTMENT ADEQUATELY EXPLAINED)/THIRD PARTY CULPABILITY (CRIMINAL LAW, HEARSAY EVIDENCE OF THIRD-PARTY CULPABILITY PROPERLY EXCLUDED AS UNRELIABLE)

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PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION.

The First Department determined a reporter’s videotaped interview with the defendant in this murder case must be turned over to the prosecution. Although the substance of some of defendant’s statements to the reporter was summarized in the portion of the interview which was aired on the news, relevant statements made by the defendant were not aired. The First Department determined the relevant unaired portions of the interview were not protected by qualified privilege under the Shield Law (Civil Rights Law 79-h):

Here, the outtakes of an interview of defendant taken at a detention center in which he discusses, inter alia, the charges against him and his relationship with the victim, are on their face “highly material and relevant” (Civil Rights Law § 79-h[c]). In a circumstantial murder case, evidence which, standing alone, might appear innocuous can be deemed critical when viewed in combination with other circumstantial evidence … . Here, the reporter described on air statements made by defendant in unaired portions of the interview to the effect that Ms. Moore was a good tenant and a good person who always paid her rent on time and was friendly with fellow neighbors. While these statements out of context might seem benign, the People argue persuasively that they are “critical or necessary” to the People’s effort to prove motive, intent, and consciousness of guilt, since they contradict defendant’s earlier statements to police … . Although the People have access to the substance of what defendant said from [the reporter’s] paraphrase on the News 12 broadcast, defendant’s actual words and his demeanor as he said them are available only on the unpublished video of the interview in News 12’s possession. ,,, [W]e find that the People have made the “clear and specific showing” required to overcome News 12’s qualified privilege as to nonconfidential journalistic material under article I, section 8 of New York’s Constitution and the Shield Law only as to those portions of the unaired News 12 footage of its interview with defendant in which defendant makes any statement concerning killing Ms. Moore, and discusses their relationship and his impressions and observations of her, including her conduct as a tenant … . People v Bonie, 2016 NY Slip Op 05331, 1st Dept 7-5-16

CIVIL RIGHTS LAW (SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/CONSTITUTIONAL LAW (REPORTERS, SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/CRIMINAL LAW (CIVIL RIGHTS LAW, REPORTERS, SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/REPORTERS (SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/PRIVILEGE (REPORTERS, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)

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PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED.

The Court of Appeals, in an extensive opinion by Judge Pigott, over a dissent in two of the three cases, determined the evidence presented in Mental Hygiene Law Article 10 proceedings supported civil commitment of the three respondents as sex offenders with mental abnormalities resulting in “serious difficulty in controlling [sexual] conduct.”  The facts of each case were discussed in detail, and the determination in each case must be considered “fact specific.” However, in one case the diagnosis of anti-social personality disorder (ASPD) coupled with paraphilia NOS was deemed sufficient. In the other two cases, the diagnosis of borderline personality disorder coupled with ASPD and evidence of sexual crimes was deemed sufficient. The dissent would have found the proof of borderline personality disorder insufficient. The number of distinct issues discussed, and the depth of those discussions, cannot fairly be summarized here. Matter of State of New York v Dennis K., 2016 NY Slip Op 05330, CtApp 7-5-16

 

MENTAL HYGIENE LAW (PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED)/EVIDENCE (MENTAL HYGIENE LAW, PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED)/SEX OFFENDERS (MENTAL HYGIENE LAW, PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED)/CRIMINAL LAW (MENTAL HYGIENE LAW, PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED)/ANTISOCIAL PERSONALITY DISORDER (ASPD) (MENTAL HYGIENE LAW, PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED)/PARAPHILA NOS  (MENTAL HYGIENE LAW, PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED)/BORDERLINE PERSONALITY DISORDER (MENTAL HYGIENE LAW, PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED)

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