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PROSECUTOR’S SUMMATION SHIFTED THE BURDEN OF PROOF, CONVICTION REVERSED IN THE INTEREST OF JUSTICE.

The Third Department reversed defendant's conviction in the interest of justice because of prosecutorial misconduct in summation:

Counsel is afforded wide latitude during summations, but when a prosecutor's remarks are so egregious such that they deprive a defendant of a fair trial, reversal is warranted … . During his summation, the prosecutor remarked that defendant failed to provide an “innocent explanation” for his actions or that it was necessary for him to do so. Indeed, a recurring and substantial theme in the prosecutor's summation was defendant's inability to provide an innocent explanation for his conduct following the incident giving rise to the charges against him or for the presence of incriminating evidence at the crime scene. We agree with defendant that these comments improperly shifted the burden of proof from the People to defendant … . People v Rupnarine, 2016 NY Slip Op 04257, 3rd Dept 6-2-16

CRIMINAL LAW (PROSECUTOR'S SUMMATION SHIFTED THE BURDEN OF PROOF, CONVICTION REVERSED IN THE INTEREST OF JUSTICE)/ATTORNEYS (CRIMINAL LAW, PROSECUTOR'S SUMMATION SHIFTED THE BURDEN OF PROOF, CONVICTION REVERSED IN THE INTEREST OF JUSTICE)/PROSECUTORIAL MISCONDUCT (PROSECUTOR'S SUMMATION SHIFTED THE BURDEN OF PROOF, CONVICTION REVERSED IN THE INTEREST OF JUSTICE)

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CONSPIRACY TO SELL A CONTROLLED SUBSTANCE NOT PROVEN; PROOF REQUIREMENTS FOR SALE OF A CONTROLLED SUBSTANCE BASED PRIMARILY ON INTERCEPTED PHONE CONVERSATIONS AND TEXT MESSAGES EXPLAINED.

The Third Department determined the evidence was not sufficient to support defendant's conviction of conspiracy in the second degree in this drug-sale case. In addition, the Third Department explained the proof required for criminal sale of a controlled substance where the evidence is primarily recorded phone calls and text messages:

“A person is guilty of conspiracy in the second degree when, with intent that conduct constituting a class A felony be performed, he [or she] agrees with one or more persons to engage in or cause the performance of such conduct” (Penal Law § 105.15). Notably, “[a] person shall not be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy” (Penal Law § 105.20 …).

At the joint trial, the People sought to convict [co-defendant] Wright of [criminal sale of a controlled substance second degree] based solely upon recorded telephone conversations between [Wright and defendant], in which Wright allegedly agreed to sell heroin to defendant. However, during those conversations, defendant equivocated as to how much heroin he sought to buy, and none of the heroin from the transaction was recovered by police. As a result, the People failed to independently establish that the weight of the heroin sold exceeded the statutory threshold … and, in turn, they failed to prove an alleged overt act by defendant or Wright in support of the conspiracy charge … . * * *

Where, as here, the People primarily rely on intercepted telephone conversations as evidence of a sale of drugs (see Penal Law §§ 220.00 [1]; 220.39 [1]), all that [is required] is the production of “some additional evidence establishing the existence of [the drug in question] to support [defendant's] convictions for [its sale]” … . People v Cochran, 2016 NY Slip Op 04255, 3rd Dept 6-2-16

CRIMINAL LAW (CONSPIRACY TO SELL A CONTROLLED SUBSTANCE NOT PROVEN; PROOF REQUIREMENTS FOR SALE OF A CONTROLLED SUBSTANCE BASED PRIMARILY ON INTERCEPTED PHONE CONVERSATIONS AND TEXT MESSAGES EXPLAINED)/EVIDENCE (CRIMINAL LAW, CONSPIRACY TO SELL A CONTROLLED SUBSTANCE NOT PROVEN; PROOF REQUIREMENTS FOR SALE OF A CONTROLLED SUBSTANCE BASED PRIMARILY ON INTERCEPTED PHONE CONVERSATIONS AND TEXT MESSAGES EXPLAINED)/CONSPIRACY (CONSPIRACY TO SELL A CONTROLLED SUBSTANCE NOT PROVEN)/CONTROLLED SUBSTANCE (CONSPIRACY TO SELL A CONTROLLED SUBSTANCE NOT PROVEN; PROOF REQUIREMENTS FOR SALE OF A CONTROLLED SUBSTANCE BASED PRIMARILY ON INTERCEPTED PHONE CONVERSATIONS AND TEXT MESSAGES EXPLAINED)

DEFENDANT MAY WAIVE RIGHT TO BE PRESENT FOR SENTENCING ON A FELONY.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined a defendant may waive his right to be present for sentencing on a felony:

Defendant contends that County Court violated CPL 380.40 (1) by permitting him to waive his presence for sentencing and in pronouncing judgment in his absence. We disagree. CPL 380.40 provides, with limited exceptions, that the “defendant must be personally present at the time sentence is pronounced” (CPL 380.40 [1]). In situations where the sentence is to be pronounced for a misdemeanor or petty offense, a defendant may move to dispense with the personal presence requirement, and, with the court's permission, may be sentenced in absentia so long as the defendant executes a waiver “reciting the maximum sentence that may be imposed for the offense and stating that the defendant waives the right to be personally present at the time sentence is pronounced” (CPL 380.40 [2]). On its face, the statute provides for no similar exception for felony defendants. * * *

We conclude … that a defendant may expressly waive his right to be present. “[W]aiver results from a knowing, voluntary and intelligent decision” … . Although CPL 380.40 protects a defendant's fundamental right to be present at sentencing … , that fundamental right may be waived just as many other fundamental rights may be similarly waived … . People v Rossborough, 2016 NY Slip Op 04250, CtApp 6-2-16

CRIMINAL LAW (DEFENDANT MAY WAIVE RIGHT TO BE PRESENT FOR SENTENCING ON A FELONY)/SENTENCING (DEFENDANT MAY WAIVE RIGHT TO BE PRESENT FOR SENTENCING ON A FELONY)/WAIVER (CRIMINAL LAW, (DEFENDANT MAY WAIVE RIGHT TO BE PRESENT FOR SENTENCING ON A FELONY)

WRIT OF HABEAS CORPUS SUSTAINED, BAIL GRANTED.

The Second Department sustained defendant's writ of habeas corpus and set bail at $1,000,000, bond or cash, together with electronic monitoring and other conditions. The underlying facts were not discussed:

ADJUDGED that the writ is sustained, without costs or disbursements, bail on Richmond County Indictment No. 61/16 is granted in the sum of $1,000,000, which may be posted in the form of an insurance company bail bond in that sum or by depositing the sum of $1,000,000 as a cash bail alternative, on condition that (1) the defendant surrender any and all passports he may have to the Office of the Richmond County District Attorney and is prohibited from applying for any new or replacement passports; (2) the defendant wear an electronic monitoring bracelet, with monitoring services to be provided by an entity approved by the Office of the Richmond County District Attorney and paid for by the defendant; and (3) the defendant not travel outside of the counties comprising the City of New York in the State of New York, subject to any modification directed by the Supreme Court, Richmond County… . People ex rel. Brackley v Warden, Brooklyn Detention Complex, 2016 NY Slip Op 04247, 2nd Dept 6-1-16

CRIMINAL LAW (WRIT OF HABEAS CORPUS SUSTAINED, BAIL GRANTED)/HABEAS CORPUS (WRIT OF HABEAS CORPUS SUSTAINED, BAIL GRANTED)/BAIL (WRIT OF HABEAS CORPUS SUSTAINED, BAIL GRANTED)

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DEFENSE COUNSEL’S ELICITATION OF DAMAGING EVIDENCE, LACK OF PREPARATION, AND FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL.

The Second Department, reversing defendant’s conviction, determined defendant did not receive effective assistance of counsel. On direct, the complainant did not indicate defendant participated in the robbery, but rather was simply present. Defense counsel elicited testimony from the complainant on cross which alleged defendant’s direct participation by pulling her to the ground from behind. Defense counsel erroneously believed complainant had testified in the grand jury that she did not know who pulled her to the ground. However a review of the grand jury minutes found no such testimony, indicating defense counsel was not adequately prepared. In addition, the Second Department held that defense counsel’s failure to object to prosecutorial misconduct during summation amounted to ineffective assistance. With regard to the prosecutorial misconduct, the court wrote:

Defense counsel failed to object to multiple improper summation statements made by the prosecutor. For example, among other improper comments, the prosecutor told the jury that the defendant was “cocky” and “brazen,” and that he “did not deserve” the benefit of the doubt given to him by the complainant on the night at issue; that the deliberations “should not take [the jury] very long”; that defense counsel “harped” on certain facts; that the jury could believe the complainant and not the defendant “who sits [during trial] with his buttoned up shirt hunched over”; and that the jury could rely on the complainant’s testimony “[b]ecause no amount of lawyering or manipulating of her words and the details of that event were going to change the way she told it to [the jury].” The prosecutor also reiterated, without objection, certain improper testimony of the complainant that the trial court had erroneously, over defense counsel’s objection, permitted the jury to hear regarding “how what [the defendant] did changed [the complainant’s] life.” The prosecutor reminded the jury that the complainant “can’t even put her trash out alone anymore,” and because of what the defendant did, the complainant “had to move.” These patently improper comments by the prosecutor vouched for the credibility of the complainant and the strength of the People’s case, appealed to the jury’s sympathy, disparaged the defendant, and denigrated the defense … . As no objection was made to such statements, the jury was able to consider these improper comments of the prosecutor … . People v McCray, 2016 NY Slip Op 04240, 2nd Dept 6-1-16

CRIMINAL LAW (DEFENSE COUNSEL’S ELICITATION OF DAMAGING EVIDENCE, LACK OF PREPARATION, AND FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL’S ELICITATION OF DAMAGING EVIDENCE, LACK OF PREPARATION, AND FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL)/INEFFECTIVE ASSISTANCE OF COUNSEL (DEFENSE COUNSEL’S ELICITATION OF DAMAGING EVIDENCE, LACK OF PREPARATION, AND FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL)/PROSECUTORIAL MISCONDUCT (DEFENSE COUNSEL’S FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL)

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ROBBERY CONVICTION UNSUPPORTED BY PROOF OF INTENT TO PERMANENTLY, AS OPPOSED TO TEMPORARILY, DEPRIVE OWNER OF PROPERTY; HEARING NECESSARY TO ASSESS DEFENDANT’S SPEEDY TRIAL ARGUMENTS; PROSECUTOR’S SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL.

The Second Department, reversing defendant's conviction, determined: (1) the robbery conviction was not supported by legally sufficient evidence of an intent to permanently, as opposed to temporarily, deprive the owner of property; (2) the trial court needed to hold a hearing to revisit defendant's motion to dismiss on speedy trial grounds; and (3) the prosecutor's summation, in which the prosecutor repeatedly gave the jury the impression the defendant had the burden of proof and vouched for the People's witnesses, deprived defendant of a fair trial. The decision has substantive discussions of all three issues. With respect to prosecutorial misconduct, an issue reached in the interest of justice, the court wrote:

“[S]ummation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his [or her] command” … . “Rather, [t]here are certain well-defined limits'” … . “Among other things, [the prosecutor] must stay within the four corners of the evidence and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused'” … .

Here, the prosecutor repeatedly shifted the burden of proof to the defendant, first, by telling the jurors that they could only form a reasonable doubt if they believed the defense offered by the defendant … , and then, by repeatedly telling the jurors or implying that they would have to find that the People's witnesses lied in order to believe that defense … . In essence, one of the prosecutor's themes in his summation was that the jurors had to determine whether they believed the People's witnesses or whether they believed the defendant (who testified), and only if they believed the defendant could they form a reasonable doubt about the defendant's guilt. Such an impression was clearly improper and prejudicial. The prosecutor additionally denigrated the defense … , and vouched for the credibility of the police witnesses based upon their position as law enforcement officers … . People v Cantoni, 2016 NY Slip Op 04232, 2nd Dept 6-1-16

CRIMINAL LAW  (ROBBERY CONVICTION UNSUPPORTED BY PROOF OF INTENT TO PERMANENTLY, AS OPPOSED TO TEMPORARILY, DEPRIVE OWNER OF PROPERTY; HEARING NECESSARY TO ASSESS DEFENDANT'S SPEEDY TRIAL ARGUMENTS; PROSECUTOR'S SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL)/ROBBERY  (ROBBERY CONVICTION UNSUPPORTED BY PROOF OF INTENT TO PERMANENTLY, AS OPPOSED TO TEMPORARILY, DEPRIVE OWNER OF PROPERTY)/SPEEDY TRIAL (HEARING NECESSARY TO ASSESS DEFENDANT'S SPEEDY TRIAL ARGUMENTS)/PROSECUTORIAL MISCONDUCT (PROSECUTOR'S SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL)/ATTORNEYS (CRIMINAL LAW, PROSECUTOR'S SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL)

EVIDENCE OF PHYSICAL INJURY NOT SUFFICIENT TO SUPPORT ROBBERY IN THE SECOND DEGREE.

The Second Department determined the evidence of physical injury was not sufficient to support robbery in the second degree and reduced defendant's conviction to robbery third degree:

“Physical injury” is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). “Although the question of whether physical injury has been established is generally for the jury to decide, there is an objective level . . . below which the question is one of law'” … .

The subject incident occurred as the complainant, a doctor, was on her way to work at Brooklyn Hospital. The complainant testified that during the incident the defendant and another man shoved her and pulled her to the ground, then took her purse. After the incident, the complainant “collected [herself]” and then resumed walking to the hospital. The complainant testified that she sustained a laceration and a welt on the back of her head, scratches and bruises on her elbow, and other bruises. At the hospital, she was given painkillers, ice, and bandages. The complainant was not able to work for the rest of that day, but returned to work the next day. She testified that she was “sore for several days.” Under these circumstances, there was insufficient evidence from which a jury could infer that the complainant suffered substantial pain or impairment of her physical condition … . People v Stokes, 2016 NY Slip Op 04245, 2nd Dept 6-1-16

CRIMINAL LAW (EVIDENCE OF PHYSICAL INJURY NOT SUFFICIENT TO SUPPORT ROBBERY IN THE SECOND DEGREE)/ROBBERY (EVIDENCE OF PHYSICAL INJURY NOT SUFFICIENT TO SUPPORT ROBBERY IN THE SECOND DEGREE)/PHYSICAL INJURY (ROBBERY SECOND DEGREE, EVIDENCE OF PHYSICAL INJURY NOT SUFFICIENT TO SUPPORT ROBBERY IN THE SECOND DEGREE)

DISABLED, ILL DEFENDANT SHOULD HAVE BEEN ALLOWED TO APPEAR REMOTELY BY VIDEO AT TRIAL.

The First Department, reversing defendant's conviction, determined the trial court should have allowed the disabled and ill defendant to appear at trial remotely by video. Contrary to the trial court's reasoning, the prosecutor's consent to the procedure was not required:

… [T]he court erred in believing that CPL article 182 restricted its authority to use video conferencing to effectuate a defendant's right to be present at trial. “Although the Legislature has primary authority to regulate court procedure, the Constitution permits the courts latitude to adopt procedures consistent with general practice as provided by statute,” and “[b]y enacting Judiciary Law § 2-b(3), the Legislature has explicitly authorized the courts' use of innovative procedures where necessary to carry into effect the powers and jurisdiction possessed by [the court]” * * *

… [W]e conclude that where the court essentially accepted defendant's claims of extreme pain and physical distress, where the alternative of electronic appearance was actually available based on the court's own efforts, where it was not employed only because the court wrongly believed that it lacked the required discretion … , and where the accommodations actually offered by the court were far less efficacious, the court, despite the best intentions, failed to reasonably accommodate defendant's medical concerns … . In these circumstances, defendant's waiver of the right to be present was not knowing, voluntary, and intelligent … . People v Krieg, 2016 NY Slip Op 04134, 1st Dept 5-31-16

CRIMINAL LAW (DISABLED, ILL DEFENDANT SHOULD HAVE BEEN ALLOWED TO APPEAR REMOTELY BY VIDEO AT TRIAL)/VIDEO (CRIMINAL TRIAL, (DISABLED, ILL DEFENDANT SHOULD HAVE BEEN ALLOWED TO APPEAR REMOTELY BY VIDEO AT TRIAL)

INDICTMENT DISMISSED ON SPEEDY TRIAL GROUNDS, DEFENDANT DID NOT CONSENT TO DELAY FOR DNA TEST RESULTS.

The Second Department dismissed defendant's indictment on speedy trial grounds. The court found (1) defendant did not consent to the 121-day delay to obtain DNA test results, (2) the defendant did not seek the DNA test results in discovery, and (3) the People did not exercise due diligence in obtaining the DNA test results:

Contrary to the People's contention, the defendant did not consent to a 121-day period of delay …, while the People were awaiting the DNA test results … , and the People did not establish that the defendant expressly sought the DNA test results as part of a discovery request … . In addition, because the People failed to exercise due diligence in obtaining DNA evidence, that period of delay was not excludable on the ground that their need to obtain the DNA test results constituted excusable, exceptional circumstances (see CPL 30.30[4][g] …). Adding this period of time to the periods of delay correctly conceded by the People, the People exceeded the six-month period in which they were required to be ready for trial (see CPL 30.30[1][a]). People v Cox, 2016 NY Slip Op 04070, 2nd Dept 5-25-16

CRIMINAL LAW (INDICTMENT DISMISSED ON SPEEDY TRIAL GROUNDS, DEFENDANT DID NOT CONSENT TO DELAY FOR DNA TEST RESULTS)/SPEEDY TRIAL (INDICTMENT DISMISSED ON SPEEDY TRIAL GROUNDS, DEFENDANT DID NOT CONSENT TO DELAY FOR DNA TEST RESULTS)

REVERSIBLE ERROR TO RECONSIDER THE VERDICT.

The First Department determined, in this bench trial, the court's failure to notify counsel, prior to summations, that it would consider a lesser included offense (attempted robbery) was reversible error. After the court found defendant guilty of attempted robbery, upon objection, the court allowed defense counsel to reopen his summation and issued another verdict. The First Department held the trial court did not have the power to reconsider the case after verdict:

The trial court's failure to comply with CPL 320.20(5) by not notifying the parties that it intended to consider a lesser included offense until after it rendered the original verdict, constitutes reversible error. “After formal rendition of a verdict at a bench trial, a trial court lacks authority to reweigh the factual evidence and reconsider the verdict” … . Here, it is undisputed that upon defendant's CPL 330.30 motion, the court reopened summations, and rendered a new verdict. Although this Court has previously held that failure to comply with CPL 320.20(5) constitutes harmless error when the defendant has the opportunity to address the lesser included offenses in a new summation … , the same cannot be said here where the trial court attempted to rectify its error only after it rendered the verdict. …

We agree that the double jeopardy clause bars a new trial on the original indictment. The People must secure a new indictment if they wish to pursue further prosecution on the lesser included charge … . People v Agola, 2016 NY Slip Op 04004, 1st Dept 5-24-16

CRIMINAL LAW (REVERSIBLE ERROR TO RECONSIDER THE VERDICT)/VERDICTS (CRIMINAL LAW, REVERSIBLE ERROR TO RECONSIDER THE VERDICT)/LESSER INCLUDED OFFENSE (IN A BENCH TRIAL, REVERSIBLE ERROR TO FAIL TO NOTIFY COUNSEL, PRIOR TO SUMMATIONS, OF CONSIDERATION OF A LESSER INCLUDED OFFENSE)

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