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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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DENIAL, WITHOUT A HEARING, OF DEFENSE MOTION TO PRESENT EXPERT TESTIMONY ON THE SCIENCE OF FALSE CONFESSIONS WAS AN ABUSE OF DISCRETION.

The First Department, in a full-fledged opinion by Justice Kapnick, over an extensive two-justice dissent, determined, under the facts, the trial court abused its discretion when it denied, without a hearing, defendant's motion to present expert opinion evidence concerning the science of false confessions:

First, there is no dispute that Dr. Drob concluded that defendant exhibited traits such as, “borderline intellectual functioning, cognitive, social and emotional immaturity, severe deficits in reality testing and deficits in the capacity to understand the actions and intentions of others, deficits in his capacity to cope with interpersonal stress, anxiety, depression, dependency, passivity and a desire to please others, and a concomitant tendency to rely on others for direction and support.” There can also be no dispute that these particular mental conditions and personality traits are ones that research studies have linked to false confessions, and that the Court of Appeals has recognized this link (Bedessie, 19 NY3d at 159 …).

Second, certain conditions of the interrogation suggest that defendant could have been induced to confess falsely to the crimes at issue. The defense urges that the detectives' interrogation employed a variety of techniques that scientific research has shown to be highly correlated with eliciting false confessions. …

Finally, this is a case … that turns on the accuracy of defendant's confessions.  People v Evans, 2016 NY Slip Op 03988, 1st Dept 5-19-16

CRIMINAL LAW (DENIAL, WITHOUT A HEARING, OF DEFENSE MOTION TO PRESENT EXPERT TESTIMONY ON THE SCIENCE OF FALSE CONFESSIONS WAS AN ABUSE OF DISCRETION)/EVIDENCE (CRIMINAL LAW, DENIAL, WITHOUT A HEARING, OF DEFENSE MOTION TO PRESENT EXPERT TESTIMONY ON THE SCIENCE OF FALSE CONFESSIONS WAS AN ABUSE OF DISCRETION)/FALSE CONFESSIONS (CRIMINAL LAW, DENIAL, WITHOUT A HEARING, OF DEFENSE MOTION TO PRESENT EXPERT TESTIMONY ON THE SCIENCE OF FALSE CONFESSIONS WAS AN ABUSE OF DISCRETION).EXPERT OPINION EVIDENCE (CRIMINAL LAW, DENIAL, WITHOUT A HEARING, OF DEFENSE MOTION TO PRESENT EXPERT TESTIMONY ON THE SCIENCE OF FALSE CONFESSIONS WAS AN ABUSE OF DISCRETION)

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33 HOUR DELAY IN ARRAIGNMENT, UNDER THE FACTS, DID NOT RENDER STATEMENT INVOLUNTARILY MADE.

The Second Department, in affirming defendant’s conviction over a dissent, determined a 33 hour delay of arraignment did not, under the facts, render defendant’s statement involuntarily made:

… [T]he testimony at the suppression hearing demonstrated that approximately 29-33 hours passed between the defendant’s arrest and his arraignment and that he provided statements after being in custody for approximately 25-28 hours. … [T]his was not a typical armed robbery case, and … the delay in arraignment was satisfactorily explained. The NYPD coordinated with three other law enforcement agencies to investigate not only the attempted murder and two robbery charges, but also the extent to which the defendant used false identities and counterfeit money in various jurisdictions, before presenting these matters at arraignment, where a judge would be considering the likelihood that the defendant would return to court before setting bail. Notably, prior to obtaining a statement from the defendant, the lead detective traveled to the hospital where the victim was recovering, conducted a photo array identification procedure when the victim became available, and then traveled back to the station house. Under these circumstances, we conclude that the delay in arraigning the defendant was attributable to a thorough and necessary police investigation. Thus, his “detention [was not] prolonged beyond a time reasonably necessary to accomplish the tasks required to bring [him] to arraignment” … . Further, the record does not otherwise demonstrate that the police unnecessarily delayed the arraignment in order to obtain an involuntary confession … . People v Johnson, 2016 NY Slip Op 03896, 2nd Dept 5-18-16

CRIMINAL LAW (33 HOUR DELAY IN ARRAIGNMENT, UNDER THE FACTS, DID NOT RENDER STATEMENT INVOLUNTARILY MADE)/EVIDENCE (CRIMINAL LAW, 33 HOUR DELAY IN ARRAIGNMENT, UNDER THE FACTS, DID NOT RENDER STATEMENT INVOLUNTARILY MADE)

SIDEWALK WAS NOT USED AS A DANGEROUS INSTRUMENT IN THIS ASSAULT CASE.

The Second Department determined, under the facts, the sidewalk was not “used” as a dangerous instrument by the defendant. The defendant punched the victim who then fell and struck his head on the sidewalk, suffering very serious injury. Although it is possible to intentionally or recklessly “use” a sidewalk as a dangerous instrument, here the sidewalk was not “used” by the defendant to cause injury withn the meaning of the assault statute (Penal Law 120.05(4)):

We agree with the People's interpretation of Penal Law § 120.05(4) that the reckless mens rea must be read to modify the phrase “by means of . . . a dangerous instrument” (see Penal Law § 15.05[3]), and that the statute does not, as the Supreme Court held, require “purposeful use” of the dangerous instrument (see Penal Law § 15.15[1]…). However, we disagree with the People's contention that Penal Law § 120.05(4) does not require that the serious physical injury be recklessly caused by the use of a dangerous instrument. Such a reading of the statute ignores the definition of dangerous instrument, which expressly focuses on the circumstances in which the instrument is “used” (Penal Law § 10.00[13]), and the use-oriented approach that has evolved directly from that definition … . Moreover, a person can “use” a dangerous instrument in a reckless manner … . Therefore, a conviction under Penal Law § 120.05(4) requires legally sufficient evidence establishing that the defendant recklessly “used” the dangerous instrument. People v McElroy, 2016 NY Slip Op 03897, 2nd Dept 5-18-16

CRIMINAL LAW (SIDEWALK WAS NOT USED AS A DANGEROUS INSTRUMENT IN THIS ASSAULT CASE)/ASSAULT (SIDEWALK WAS NOT USED AS A DANGEROUS INSTRUMENT IN THIS ASSAULT CASE)/DANGEROUS INSTRUMENT (SIDEWALK WAS NOT USED AS A DANGEROUS INSTRUMENT IN THIS ASSAULT CASE)

FAILURE TO INSTRUCT SPECTATORS TO REMOVE OR COVER UP T-SHIRTS MEMORIALIZING THE MURDER VICTIM WAS HARMLESS ERROR.

The Third Department determined County Court's failure to address T-shirts memorializing the murder victim worn by trial spectators was error, but the error was harmless:

… [W]e find that County Court's failure to instruct the spectators to remove or cover up their T-shirts was error, but the court was attentive to the courtroom environment and interacted with the spectators in an authoritative yet sensitive manner. In addition, there is no evidence that the spectators who wore the T-shirts called attention to themselves during the trial, nor did the photograph or letters “R.I.P.” convey anything other than remembrance of the victim. Consequently, we conclude that their conduct was not so egregious as to require reversal. We also find that the proof of defendant's guilt was so overwhelming that there was no reasonable possibility that this error might have contributed to his conviction … . People v Jones, 2016 NY Slip Op 03770, 3rd Dept 5-12-16

CRIMINAL LAW (FAILURE TO INSTRUCT SPECTATORS TO REMOVE OR COVER UP T-SHIRTS MEMORIALIZING THE MURDER VICTIM WAS HARMLESS ERROR)/T-SHIRTS MEMORIALIZING MURDER VICTIM (CRIMINAL TRIAL. FAILURE TO INSTRUCT SPECTATORS TO REMOVE OR COVER UP T-SHIRTS MEMORIALIZING THE MURDER VICTIM WAS HARMLESS ERROR)

FAILURE TO PROVIDE RACE-NEUTRAL REASON FOR CHALLENGE TO BLACK JUROR REQUIRED REVERSAL.

The Second Department determined the prosecutor's failure to provide an adequate race-neutral reason for a peremptory challenge to a black juror required reversal:

Here, during jury selection, the defendant made an application before the trial court pursuant to Batson, arguing that the prosecution was exercising its peremptory challenges in a discriminatory manner against prospective black jurors. The prosecutor proffered an explanation for challenging one of the two jurors at issue, stating that it was “just our instincts that we don't feel [prospective juror] number 4 would be a suitable juror for this particular trial.” This explanation was inadequate … . Under the circumstances, the fact that the prosecution, essentially, “offered no reason at all with respect to [its] challenge of the juror is dispositive of the Batson issue” … . People v Jones, 2016 NY Slip Op 03758, 2nd Dept 5-11-16

CRIMINAL LAW (FAILURE TO PROVIDE RACE-NEUTRAL REASON FOR CHALLENGE TO BLACK JUROR REQUIRED REVERSAL)/JURORS (CRIMINAL LAW, FAILURE TO PROVIDE RACE-NEUTRAL REASON FOR CHALLENGE TO BLACK JUROR REQUIRED REVERSAL)/BATSON CHALLENGE (CRIMINAL LAW, FAILURE TO PROVIDE RACE-NEUTRAL REASON FOR CHALLENGE TO BLACK JUROR REQUIRED REVERSAL)

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COMBINED RACIAL-GENDER BIAS IS A PROPER SUBJECT OF A BATSON CHALLENGE TO THE REMOVAL OF A JUROR; APPELLATE DIVISION HAS INTEREST OF JUSTICE JURISDICTION TO REVIEW BATSON ERRORS.

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over an extensive dissenting opinion, determined the trial judge's failure follow the protocol for Batson challenges to the prosecutor's removal of African-American males from the jury required reversal. Although the issues were preserved, the court noted it had the power to exercise interest of justice jurisdiction over Batson issues. The court further held a combined racial/gender bias is the proper subject of a Batson challenge:

The wholesale exclusion of black men from the jury gives rise to a mandatory inference of discrimination at the first step of the Batson inquiry … . The prosecutor used peremptory strikes to eliminate black male jurors while not excluding others who expressed skepticism about the credibility of police officers, such as the woman on the first panel who stated that “sometimes the police [were] not [doing their job],” and “could be forceful . . . if . . . threatened,” and the woman on the second panel who said she'd “seen things go both ways” with the police. * * *

The court failed to follow the three-step Batson protocol. Although the prosecutor furnished some explanations for the strikes, he gave them only as to Hewitt and Prosser, not Lortey. Even if those explanations were accepted as facially neutral, the court was obliged to continue on to step three and afford defense counsel the opportunity to show that the prosecutor's stated reasons for the strikes were pretextual. Defense counsel was never given the opportunity to argue that the prosecutor's explanations were a pretext for discrimination. The court improperly combined steps and deviated from the Batson protocol, which cannot be considered harmless or nonprejudicial to defendant … . People v Watson, 2016 NY Slip Op 03688, 1st Dept 5-10-16

CRIMINAL LAW (COMBINED RACIAL-GENDER BIAS IS A PROPER SUBJECT OF A BATSON CHALLENGE TO THE REMOVAL OF A JUROR; APPELLATE DIVSION HAS INTEREST OF JUSTICE JURISDICTION TO REVIEW BATSON ERRORS)/APPEALS (CRIMINAL LAW, COMBINED RACIAL-GENDER BIAS IS A PROPER SUBJECT OF A BATSON CHALLENGE TO THE REMOVAL OF A JUROR; APPELLATE DIVSION HAS INTEREST OF JUSTICE JURISDICTION TO REVIEW BATSON ERRORS)/JURORS (CRIMINAL LAW, COMBINED RACIAL-GENDER BIAS IS A PROPER SUBJECT OF A BATSON CHALLENGE TO THE REMOVAL OF A JUROR; APPELLATE DIVSION HAS INTEREST OF JUSTICE JURISDICTION TO REVIEW BATSON ERRORS)/BATSON CHALLENGES (COMBINED RACIAL-GENDER BIAS IS A PROPER SUBJECT OF A BATSON CHALLENGE TO THE REMOVAL OF A JUROR; APPELLATE DIVSION HAS INTEREST OF JUSTICE JURISDICTION TO REVIEW BATSON ERRORS)

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DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO SHOW PSYCHIATRIC EXPERT PHOTOS OF VICTIM’S WOUNDS AND FAILING TO INFORM EXPERT OF THE PEOPLE’S REVENGE THEORY.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, reversing the Appellate Division, determined defendant's counsel was not ineffective. Defendant was 15 when he stabbed the 12-year-old victim more than 20 times (the victim survived). The defendant claimed he blacked out and had no memory of the stabbing. The defense called an psychiatrist who testified defendant's mental condition, together with his use of marijuana, made it impossible for the defendant to form the intent to commit the crime. Defense counsel did not show the expert the photos of the victim's wounds and did not inform the expert of the prosecution's theory that the defendant considered the victim a “snitch” and attacked him for that reason:

Whatever the wisdom of counsel's strategy, we cannot say that it was inconsistent with the actions of a reasonably competent attorney. There is no evidence on this record of what information forensic experts ordinarily require in order to arrive at an expert conclusion, or what information the expert requested in this case. Nor is there any evidence of what information an attorney ordinarily would or should provide to such an expert, independently of the expert's request. Therefore, it is not clear that prevailing professional norms would have required counsel to provide the expert with photographs and hospital records of the victim's stab wounds or inform him of the prosecution's theory of the case … . People v Henderson, 2016 NY Slip Op 03649, CtApp 5-10-16

CRIMINAL LAW (DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO SHOW EXPERT PHOTOS OF VICTIM'S WOUNDS AND FAILING TO INFORM EXPERT OF THE PEOPLE'S REVENGE THEORY)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO SHOW EXPERT PHOTOS OF VICTIM'S WOUNDS AND FAILING TO INFORM EXPERT OF THE PEOPLE'S REVENGE THEORY)/INEFFECTIVE ASSISTANCE OF COUNSEL DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO SHOW EXPERT PHOTOS OF VICTIM'S WOUNDS AND FAILING TO INFORM EXPERT OF THE PEOPLE'S REVENGE THEORY)

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