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POLICE OFFICERS MAY BE CROSS-EXAMINED BASED ON ALLEGATIONS MADE IN A PENDING CIVIL SUIT, CRITERIA EXPLAINED.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, clarified the criteria for cross-examination of police officers who are defendants in a pending law suit alleging bad acts such as false arrest and fabrication of evidence. The court looked at three cases and applied the criteria to the facts of each. With respect to the one case which was reversed, the court wrote:

Specific allegations of prior bad acts in a federal lawsuit against a particular witness do establish a good faith basis for cross-examining that witness about the misconduct. Because defendant had the necessary good faith basis to ask about the prior bad acts alleged in the complaint, and there was no danger that such cross-examination would go to anything other than the police officers’ credibility, the trial court abused its discretion in not allowing cross-examination into the acts alleged in the federal lawsuit based on the reasoning that the prejudicial value outweighed the probative value merely because the lawsuit was still pending. While we recognize that the scope of cross-examination rests in the sound discretion of the trial judge … , in this case, it was an abuse of discretion to restrict defendant’s right to cross-examine key prosecution witnesses based on a finding that some unidentified prejudice outweighed the probative value of the questions. The questions had a good faith basis and there is no suggestion in this record that the main issues would have been obscured and the jury confused … . People v Smith, 2016 NY Slip Op 05061, CtApp 6-28-16

 

CRIMINAL LAW (POLICE OFFICERS MAY BE CROSS-EXAMINED BASED ON ALLEGATIONS MADE IN A PENDING CIVIL SUIT, CRITERIA EXPLAINED)/EVIDENCE (CRIMINAL LAW, POLICE OFFICERS MAY BE CROSS-EXAMINED BASED ON ALLEGATIONS MADE IN A PENDING CIVIL SUIT, CRITERIA EXPLAINED)/POLICE OFFICERS (CRIMINAL LAW, EVIDENCE, (POLICE OFFICERS MAY BE CROSS-EXAMINED BASED ON ALLEGATIONS MADE IN A PENDING CIVIL SUIT, CRITERIA EXPLAINED)/CROSS-EXAMINATION (CRIMINAL LAW, POLICE OFFICERS MAY BE CROSS-EXAMINED BASED ON ALLEGATIONS MADE IN A PENDING CIVIL SUIT, CRITERIA EXPLAINED)

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CRITERIA FOR ALLOWING EXPERT EVIDENCE ON THE RELIABILITY OF EYEWITNESS IDENTIFICATION CLARIFIED; EXCLUDING THE PROFFERED EVIDENCE HERE WAS NOT AN ABUSE OF DISCRETION.

The Court of Appeals, over a three-judge dissent, reversing the Appellate Division, determined the trial court did not abuse its discretion (as a matter of law) when it denied defendant’s motion to present expert evidence about eyewitness identification. The Court of Appeals clarified how its precedent on the topic should be applied:

The decision to admit or exclude expert testimony concerning factors that affect the reliability of eyewitness identifications rests within the sound discretion of the trial court … . When the motion is considered during the People’s case-in-chief, the trial court performs this function by weighing the request to introduce such testimony “against other relevant factors, such as the centrality of the identification issue and the existence of corroborating evidence” (… see … People v LeGrand, 8 NY3d 449, 459 [2007]). To the extent LeGrand has been understood to require courts to apply a strict two-part test that initially evaluates the strength of the corroborating evidence, it should instead be read as enumerating factors for trial courts to consider in determining whether expert testimony on eyewitness identification “‘would aid a lay jury in reaching a verdict'” … . Courts reviewing such a determination simply examine whether the trial court abused its discretion in applying the “standard balancing test or prejudice versus probative value” … .

Here, Supreme Court did not abuse its discretion as a matter of law when it precluded the introduction of the expert testimony. The trial court was entitled to reject the expert testimony after balancing the probative value of the evidence against its prejudicial or otherwise harmful effects. In light of the fact that “trial courts generally have the power to limit the amount and scope of evidence presented,” … on this record, the Appellate Division erred in holding that Supreme Court abused its discretion as a matter of law in precluding the testimony. People v McCullough, 2016 NY Slip Op 05060, CtApp 6-28-16

CRIMINAL LAW (CRITERIA FOR ALLOWING EXPERT EVIDENCE ON THE RELIABILITY OF EYEWITNESS IDENTIFICATION CLARIFIED; EXCLUDING THE PROFFERED EVIDENCE HERE WAS NOT AN ABUSE OF DISCRETION)/EVIDENCE (CRIMINAL LAW, CRITERIA FOR ALLOWING EXPERT EVIDENCE ON THE RELIABILITY OF EYEWITNESS IDENTIFICATION CLARIFIED; EXCLUDING THE PROFFERED EVIDENCE HERE WAS NOT AN ABUSE OF DISCRETION)/IDENTIFICATION (CRIMINAL LAW, CRITERIA FOR ALLOWING EXPERT EVIDENCE ON THE RELIABILITY OF EYEWITNESS IDENTIFICATION CLARIFIED; EXCLUDING THE PROFFERED EVIDENCE HERE WAS NOT AN ABUSE OF DISCRETION)/EXPERT EVIDENCE (CRIMINAL LAW, CRITERIA FOR ALLOWING EXPERT EVIDENCE ON THE RELIABILITY OF EYEWITNESS IDENTIFICATION CLARIFIED; EXCLUDING THE PROFFERED EVIDENCE HERE WAS NOT AN ABUSE OF DISCRETION)

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GUNPOINT DETENTION NOT JUSTIFIED, SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED.

The Fourth Department determined the gunpoint detention of defendant was not justified by what the officer knew or observed. The motion to suppress the seized marijuana and handgun should have been granted:

The People concede that the sergeant’s encounter with defendant constituted a level three forcible detention under People v De Bour …, and thus required “a reasonable suspicion that [defendant] was involved in a felony or misdemeanor” … . “[A]ctions that are at all times innocuous and readily susceptible of an innocent interpretation . . . may not generate a founded suspicion of criminality” … .

We agree with defendant that the arresting sergeant lacked the requisite reasonable suspicion. There is no evidence in the record that the sergeant was informed of the recovery of marihuana in the area the day before defendant’s arrest, and defendant’s actions in merely “grabbing” at his waistline and bending down to the floor of the vehicle, without more, were insufficient to provide the sergeant with the requisite suspicion that defendant committed a crime, and to justify defendant’s gunpoint detention … . People v Elliott, 2016 NY Slip Op 04838, 4th Dept 6-17-16

 

CRIMINAL LAW (GUNPOINT DETENTION NOT JUSTIFIED, SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, GUNPOINT DETENTION NOT JUSTIFIED, SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED)/SUPPRESSION (CRIMINAL LAW, GUNPOINT DETENTION NOT JUSTIFIED, SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED)

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NO JUSTIFICATION FOR A STRIP SEARCH, EVIDENCE SHOULD HAVE BEEN SUPPRESSED.

The Fourth Department determined there were insufficient grounds for a strip search and defendant’s motion to suppress the drugs seized from his person should have been granted:

… [T]he search performed by the officer constituted a strip search … , which must be justified by “a reasonable suspicion that the arrestee is concealing evidence underneath clothing” … . We conclude that the officer did not have the requisite reasonable suspicion. Defendant was fully cooperative with the officer, admitting his possession of marihuana and denying possession of any other contraband. There was no indication that defendant might be concealing any contraband under his clothing, and the mere fact that he possessed marihuana does not justify a strip search. Although the People assert that the search was justified because defendant appeared to be nervous about being searched, the record reflects that defendant became nervous only after the officer began to perform the strip search … . People v Tisdale, 2016 NY Slip Op 04842, 4th Dept 6-17-16

 

CRIMINAL LAW (NO JUSTIFICATION FOR A STRIP SEARCH, EVIDENCE SHOULD HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, NO JUSTIFICATION FOR A STRIP SEARCH, EVIDENCE SHOULD HAVE BEEN SUPPRESSED)/STRIP SEARCH (NO JUSTIFICATION FOR A STRIP SEARCH, EVIDENCE SHOULD HAVE BEEN SUPPRESSED)/SUPPRESSION (CRIMINAL LAW, NO JUSTIFICATION FOR A STRIP SEARCH, EVIDENCE SHOULD HAVE BEEN SUPPRESSED)

ONLY ONE FINE SHOULD HAVE BEEN IMPOSED WHERE TWO CONVICTIONS AROSE FROM THE SAME ACT.

The Fourth Department determined one fine, not two, should have been imposed on two convictions arising from the same act:

We agree with defendant, however, that the fines are illegal to the extent the court imposed a fine on both a conviction for criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree that arose from a single act … . People v Regatuso, 2016 NY Slip Op 04836, 4th Dept 6-17-16

CRIMINAL LAW (ONLY ONE FINE SHOULD HAVE BEEN IMPOSED WHERE TWO CONVICTIONS AROSE FROM THE SAME ACT)/SENTENCING (ONLY ONE FINE SHOULD HAVE BEEN IMPOSED WHERE TWO CONVICTIONS AROSE FROM THE SAME ACT)/FINES (CRIMINAL LAW, (ONLY ONE FINE SHOULD HAVE BEEN IMPOSED WHERE TWO CONVICTIONS AROSE FROM THE SAME ACT)

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PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE.

The Third Department determined defendant was not provided effective assistance of counsel. Defense counsel permitted lengthy, unresponsive answers from the People’s witnesses and failed to address in any way the People’s failure to present the confidential informant (CI) as a witness in this “buy and bust” case:

 

Although defense counsel lodged some successful objections at trial, he largely permitted the People’s police witnesses to provide lengthy, nonresponsive answers to questions asked on both direct and cross-examination, even after County Court commented on his failure to object or request that the nonresponsive testimony be stricken from the record. …

Even more perplexing, however, was defense counsel’s absolute failure to address the absence of the CI, a pivotal player in the “buy and bust” operation. Initially, the record is devoid of any indication that defense counsel recognized the possibility of requesting a missing witness charge … . It is difficult to imagine any legitimate trial tactic for not requesting such a charge under the particular circumstances of this case … . People v Smith, 2016 NY Slip Op 04745, 3rd Dept 6-16-16

 

CRIMINAL LAW (PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE OF COUNSEL (PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE

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DEFENDANT’S REQUEST TO REPRESENT HIMSELF SHOULD HAVE BEEN HONORED, CRITERIA EXPLAINED.

The Second Department determined County Court should have honored defendant’s request to represent himself. Neither defendant’s mental health nor his responses to questions about legal terms was a valid reason for denying the request:

“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” … . * * *

To the extent that the County Court based its denial of the defendant’s application on the ground that he had a history of mental illness, this was error. “New York courts can, in appropriate circumstances, deny a self-representation request if a severely-mentally-ill defendant who is competent to stand trial otherwise lacks the mental capacity to waive counsel and proceed pro se” … . This is not such a case. While the defendant acknowledged prior hospitalizations for mental illness, there is no indication in the record that the defendant was severely mentally ill at the time he made his requests to proceed pro se, or that any mental condition at that time rendered him incapable of intelligently and voluntarily waiving his right to counsel and representing himself.

To the extent that the County Court based its denial of the defendant’s application on his failure to correctly answer the prior Judge’s questions about certain legal terms, the Court of Appeals has pointed out that “[t]o accept a defendant’s lack of knowledge of legal principles and rules of law or his unfamiliarity with courtroom procedures as the ground for concluding that he is not qualified to represent himself would in effect be to eviscerate the constitutional right of self-representation; such limitations could confidently be said to exist in nearly every criminal case in which the defendant had not received legal training”… . People v Paulin, 2016 NY Slip Op 04735, 2nd Dept 6-15-16

 

CRIMINAL LAW (DEFENDANT’S REQUEST TO REPRESENT HIMSELF SHOULD HAVE BEEN HONORED, CRITERIA EXPLAINED)/ATTORNEYS (CRIMINAL LAW, DEFENDANT’S REQUEST TO REPRESENT HIMSELF SHOULD HAVE BEEN HONORED, CRITERIA EXPLAINED)/PRO SE (CRIMINAL LAW, DEFENDANT’S REQUEST TO REPRESENT HIMSELF SHOULD HAVE BEEN HONORED, CRITERIA EXPLAINED)

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DEFENDANT DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE ATTORNEY INDICATED THERE WAS NO BASIS FOR DEFENDANT’S REQUEST TO WITHDRAW HIS PLEA.

The Second Department determined defendant's right to counsel was compromised when his attorney to a position adverse to defendant's request to withdraw his plea:

At sentencing, defense counsel informed the Supreme Court that the defendant wanted to withdraw his plea of guilty. Defense counsel stated, among other things, that he did not “believe there's a basis to withdraw the plea.” As the People correctly concede, the defendant's right to counsel was adversely affected when his attorney took a position adverse to his … . The Supreme Court should have assigned a different attorney to represent the defendant on the plea withdrawal motion … . People v Ferguson, 2016 NY Slip Op 04728, 2nd Dept 6-15-16

CRIMINAL LAW (DEFENDANT DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE ATTORNEY INDICATED THERE WAS NO BASIS FOR DEFENDANT'S REQUEST TO WITHDRAW HIS PLEA)/ATTORNEYS (DEFENDANT DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE ATTORNEY INDICATED THERE WAS NO BASIS FOR DEFENDANT'S REQUEST TO WITHDRAW HIS PLEA)/RIGHT TO COUNSEL (DEFENDANT DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE ATTORNEY INDICATED THERE WAS NO BASIS FOR DEFENDANT'S REQUEST TO WITHDRAW HIS PLEA)

UNDULY HARSH AND SEVERE SENTENCE FOR SALE OF A CONTROLLED SUBSTANCE REDUCED.

The Second Department, over a dissent, determined an 8 to 16 year sentence for criminal sale of a controlled substance in the third degree was unduly harsh and reduced the sentence to 5 to 10 years. Defendant had absconded in 1992 and was sentenced in absentia:

“An intermediate appellate court has broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances, even though the sentence may be within the permissible statutory range” … . Our sentencing review power “may be exercised, if the interest of justice warrants, without deference to the sentencing court” … . In considering whether a sentence is unduly harsh or severe under the circumstances, we exercise our discretion giving consideration to, “among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation, and deterrence” … .

Here, taking into account the circumstances of the defendant's nonviolent felony drug conviction, which involved the sale of a relatively small amount of cocaine for the sum of $60, the defendant's prior nonviolent felony drug offense, the probation department's finding that the then 22-year-old defendant had a $100 per day drug addiction at the time, and that the People recommended a lower sentence than what was imposed, we find that, even considering that the defendant absconded, the sentence of 8 to 16 years imprisonment was unduly harsh and severe. People v Kordish, 2016 NY Slip Op 04733, 2nd Dept 6-15-16

CRIMINAL LAW (UNDULY HARSH AND SEVERE SENTENCE FOR SALE OF A CONTROLLED SUBSTANCE REDUCED)/SENTENCING (UNDULY HARSH AND SEVERE SENTENCE FOR SALE OF A CONTROLLED SUBSTANCE REDUCED)/UNDULY HARSH AND SEVERE SENTENCE (UNDULY HARSH AND SEVERE SENTENCE FOR SALE OF A CONTROLLED SUBSTANCE REDUCED)/CONTROLLED SUBSTANCE, SALE OF (UNDULY HARSH AND SEVERE SENTENCE FOR SALE OF A CONTROLLED SUBSTANCE REDUCED

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SEX OFFENDER CERTIFICATION IS PART OF THE JUDGMENT OF CONVICTION AND MUST BE CHALLENGED ON APPEAL FROM THE JUDGMENT, NOT IN A SORA RISK-LEVEL PROCEEDING.

The First Department determined that sex-offender certification is part of the judgment of conviction. Challenge to sex-offender certification, therefore, must be raised on appeal from the judgment and cannot be raised for the first time in a SORA risk-level determination:

Although this appeal from a risk level determination is not subject to dismissal, it does not bring up for review defendant’s claim that his underlying New York felony conviction was not for an offense requiring registration as a sex offender. Sex offender certification is part of the judgment of conviction, and the proper occasion for defendant to have challenged that certification was on an appeal from the judgment …, but defendant did not appeal. People v Miguel, 2016 NY Slip Op 04666, 1st Dept 6-14-16

 

CRIMINAL LAW (SEX OFFENDER CERTIFICATION IS PART OF THE JUDGMENT OF CONVICTION AND MUST BE CHALLENGED ON APPEAL FROM THE JUDGMENT, NOT IN A SORA RISK-LEVEL PROCEEDING)/APPEALS (SEX OFFENDER CERTIFICATION IS PART OF THE JUDGMENT OF CONVICTION AND MUST BE CHALLENGED ON APPEAL FROM THE JUDGMENT, NOT IN A SORA RISK-LEVEL PROCEEDING)/SEX OFFENDER REGISTRATION ACE (SORA) (SEX OFFENDER CERTIFICATION IS PART OF THE JUDGMENT OF CONVICTION AND MUST BE CHALLENGED ON APPEAL FROM THE JUDGMENT, NOT IN A SORA RISK-LEVEL PROCEEDING)/SORA (SEX OFFENDER CERTIFICATION IS PART OF THE JUDGMENT OF CONVICTION AND MUST BE CHALLENGED ON APPEAL FROM THE JUDGMENT, NOT IN A SORA RISK-LEVEL PROCEEDING)

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