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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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COUNTY COURT ERRONEOUSLY DISMISSED THREE INDICTMENT COUNTS AFTER IMPROPERLY WEIGHING THE EVIDENCE PRESENTED IN THE GRAND JURY PROCEEDINGS.

The Fourth Department, reversing County Court, reinstated three indictment counts which County Court had dismissed. The Fourth Department explained the criteria for sufficient evidence in grand jury proceedings and the court’s sufficiency-review powers. Here it was determined County Court improperly weighed the evidence:

“The standard for reviewing the legal sufficiency of the evidence before the grand jury is whether the evidence, viewed in the light most favorable to the People, if unexplained and uncontradicted, would be sufficient to warrant conviction by a trial jury” … . “On a motion to dismiss, the reviewing court’s inquiry is confined to the legal sufficiency of the evidence and the court is not to weigh the proof or examine its adequacy” … . ” In the context of the [g]rand [j]ury procedure, legally sufficient means prima facie, not proof beyond a reasonable doubt’ ” … . Further, the fact “[t]hat other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry, as long as the [g]rand [j]ury could rationally have drawn the guilty inference” … .

Here, we conclude that the evidence, viewed in the light most favorable to the People … , is legally sufficient to support the counts that were dismissed by County Court, and that the court improperly weighed the evidence … . People v Roth, 2016 NY Slip Op 05257, 4th Dept 7-1-16

CRIMINAL LAW (COUNTY COURT ERRONEOUSLY DISMISSED THREE INDICTMENT COUNTS AFTER IMPROPERLY WEIGHING THE EVIDENCE PRESENTED IN THE GRAND JURY PROCEEDINGS)/EVIDENCE (GRAND JURY, COUNTY COURT ERRONEOUSLY DISMISSED THREE INDICTMENT COUNTS AFTER IMPROPERLY WEIGHING THE EVIDENCE PRESENTED IN THE GRAND JURY PROCEEDINGS)/GRAND JURY (COUNTY COURT ERRONEOUSLY DISMISSED THREE INDICTMENT COUNTS AFTER IMPROPERLY WEIGHING THE EVIDENCE PRESENTED IN THE GRAND JURY PROCEEDINGS)

BROADER FLORIDA STATUTE COULD NOT PROVIDE THE BASIS FOR SECOND FELONY OFFENDER STATUS.

The First Department determined a Florida statute was broader than its New York counterpart and the Florida conviction (for a violation of the Florida statute) could not be the basis of second felony offender status in New York:

The court incorrectly adjudicated defendant a second felony offender based on a conviction under a Florida statute that is broader than its New York counterpart for enhanced sentencing purposes … . Florida Statutes Annotated § 831.02 is broader than Penal Law § 170.25 because the Florida statute could be violated by uttering or publishing an instrument that merely contained false information, while under the New York statute an instrument is only considered forged if it is falsely made, completed or altered; a genuine instrument containing false information does not suffice … .  People v Catmon, 2016 NY Slip Op 05228, 1st Dept 6-30-16

CRIMINAL LAW (BROADER FLORIDA STATUTE COULD NOT PROVIDE THE BASIS FOR SECOND FELONY OFFENDER STATUS)/SECOND FELONY OFFENDER (BROADER FLORIDA STATUTE COULD NOT PROVIDE THE BASIS FOR SECOND FELONY OFFENDER STATUS)

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PROSECUTOR’S QUESTIONING DEFENDANT ABOUT AN ADMISSION ALLEGEDLY MADE TO HIS ATTORNEY REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The Second Department reversed defendant’s conviction in the interest of justice because he was improperly cross-examined about an admission allegedly made to his attorney:

The defendant contends that he was deprived of a fair trial because the Supreme Court allowed the prosecutor, on cross-examination, to question him, in violation of the attorney-client privilege, as to whether he made a certain admission to his attorney which contradicted his trial testimony. Although the defendant failed to preserve this claim for appellate review … , we nevertheless reach it in the exercise of our interest of justice jurisdiction … . Allowing this questioning was error, as it concerned a statement the defendant allegedly made to his attorney … . The error was not harmless, as the proof of the defendant’s guilt was not overwhelming and the questioning was highly damaging to the defendant’s credibility, the jury’s assessment of which, compared to that of the complainant, was the central issue in the case … . Under the circumstances of this case, the court’s instructions to the jury in its preliminary instructions and final charge that questions in and of themselves were not evidence, and that the jurors were prohibited from inferring any facts from the mere asking of a question, cannot be deemed to have obviated any prejudice resulting from the error … . People v Loiseau, 2016 NY Slip Op 05172, 2nd Dept 6-29-16

CRIMINAL LAW (PROSECUTOR’S QUESTIONING DEFENDANT ABOUT AN ADMISSION ALLEGEDLY MADE TO HIS ATTORNEY REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/ATTORNEYS (CRIMINAL LAW, PROSECUTOR’S QUESTIONING DEFENDANT ABOUT AN ADMISSION ALLEGEDLY MADE TO HIS ATTORNEY REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/EVIDENCE (CRIMINAL LAW, PROSECUTOR’S QUESTIONING DEFENDANT ABOUT AN ADMISSION ALLEGEDLY MADE TO HIS ATTORNEY REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)

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SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a two-judge dissent, determined the SORA court did not err when it assessed 30 points for defendant's prior conviction (involving a different victim) for endangering the welfare of a child which did not involve a sexual offense. Based upon the language of the guidelines. the majority concluded the non-sexual offense could properly be considered subject to a possible downward departure. Here the SORA court, taking into consideration all the relevant evidence, was deemed justified in rejecting a downward departure:

As we recently stated, “[i]n determining whether to depart from a presumptive risk level, the hearing court weighs the aggravating or mitigating factors alleged by the departure-requesting party to assess whether, under the totality of the circumstances, a departure is warranted” … . Here, the only mitigating factor defendant presented to the SORA court was that the prior endangering the welfare of a child conviction was not sexual in nature. Although the SORA court considered this argument when deciding whether to downwardly depart, it certainly was not required to consider the mitigating factor in a vacuum without considering any aggravating factors that would weigh against a downward departure … . In this case, there were numerous aggravating factors not adequately captured by the [risk assessment] that countered defendant's argument for a downward departure. Therefore, the SORA court did not abuse its discretion in determining that the “totality of the circumstances” did not warrant a downward departure because such a departure would have resulted in an “under-assessment of the defendant's dangerousness and risk of sexual recidivism” … . People v Sincerbeaux, 2016 NY Slip Op 05062, CtApp 6-28-16

CRIMINAL LAW (SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE)/EVIDENCE (CRIMINAL LAW, SORA, SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE)/SEX OFFENDER REGISTRATION ACT (SORA) (SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE)/SORA (SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE)

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