Criminal Law – Page 32 – New York Appellate Digest

THE CASEWORKER WAS PART OF THE CRIMINAL INVESTIGATION IN THIS “COURSE OF SEXUAL CONDUCT WITH A CHILD” PROSECUTION; THE PEOPLE WERE THEREFORE DEEMED TO HAVE HAD CONTROL OVER OR TO HAVE BEEN IN POSSESSION OF THE CASWORKER’S NOTES; THE NOTES INCLUDED BRADY MATERIAL WHICH SHOULD HAVE BEEN TURNED OVER TO THE DEFENSE BEFORE TRIAL; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s “course of sexual conduct with a child” conviction and ordering a new trial, determined that the caseworker’s notes taken during an interview of the child constituted Brady material which should have been turned over to the defendant before trial. The caseworker was part of the criminal investigation. Therefore the notes were deemed to have been under the People’s control or in the People’s possession. There was a notation by the caseworker to the effect the victim “was acting normal and as if nothing happened…”.:

“[W]hether knowledge of a government official or employee may be imputed to the People . . . turn[s] on whether participation in the criminal probe was an ancillary law enforcement task” and, thus, “while social workers are generally not agents of the police, in situations where they engage in a joint venture with police agencies to collaborate on child abuse or sexual abuse investigations, share information and a common purpose, and have a cooperative working arrangement with police, an agency relationship may exist such that the social workers’ knowledge is imputed to the People” … . * * *

The People’s provision of this material after the close of all proof deprived defendant of “a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People’s witnesses or as evidence during his case” … . People v Baez, 2024 NY Slip Op 05844, Third Dept 11-21-24

Practice Point: When a caseworker is part of a criminal investigation, the caseworker’s notes taken when interviewing a child victim are deemed to be under the control of or possessed by the People, such that any Brady material in the notes must be turned over to the defense prior to trial.

November 21, 2024

Attorneys, Constitutional Law, Criminal Law, Judges

THERE WAS NO PROOF THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT IN THE PRESENCE OF COUNSEL; GUILTY PLEA VACATED AND SUPERIOR COURT INFORMATION DISMISSED (THIRD DEPT).

The Third Department, vacating the guilty plea and dismissing the superior court information, determined the record did not demonstrate the defendant signed the waiver of appeal in open court in the presence of counsel:

… [T]he plea minutes are silent as to when the undated waiver was executed by defendant, and during the colloquy County Court referred to defendant as having “signed” the waiver in the past tense … . Neither the waiver nor the plea colloquy confirms that defendant signed the written waiver in the presence of counsel. Further, although County Court indicated in the undated order approving the waiver that it was generally satisfied that the requirements of CPL 195.10 and 195.20 had been met, nothing in the order explicitly confirms “that the waiver was signed in open court” in the presence of counsel . Thus, … the record does not reflect that defendant’s waiver of indictment passes constitutional and statutory muster, and it follows that defendant’s guilty plea must be vacated and the underlying SCI dismissed … . People v Trapani, 2024 NY Slip Op 05846, Third Dept 11-21-24

Practice Point: When a defendant waives his right to an indictment and agrees to plead to a superior court information, the record must reflect the waiver was made in open court and in the presence of counsel. Absent proof of those statutory and constitutional requirements the waiver is invalid.

Similar issue and result in People v Rupp, 2024 NY Slip Op 05845, Third Dept 11-21-24.

November 21, 2024

Appeals, Attorneys, Criminal Law, Judges

THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO DETERMINE RESTITUTION TO THE PROSECUTOR, MATTER REMITTED FOR A HEARING (THIRD DEPT).

The Third Department, remitting the matter for a restitution hearing despite defendant’s failure to preserve the error, determined the record was insufficient to support the ordered restitution. The judge merely accepted the People’s restitution order, thereby improperly delegating the court’s role to the prosecutor:

… [I]t appears County Court impermissibly delegated its authority to the People to determine the amount of restitution owed and that said amount has no factual predicate in the record before us. “Whenever the court requires restitution . . . to be made, the court must make a finding as to the dollar amount of the fruits of the offense and the actual out-of-pocket loss to the victim[s] caused by the offense. In making this finding, the court must consider any victim impact statement provided to the court. If the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing upon the issue” (Penal Law § 60.27 [2] …). At the time of sentencing, the People noted that they had submitted a restitution order for the court to sign[*2]. Seemingly reading from that order, the court ordered defendant to pay restitution in the amount of $773, plus a five percent surcharge in the amount of $38.65, for a total sum of $811.65. The restitution order provided to this Court is not accompanied by any documentation, and neither the presentence report nor the victims’ impact statements at sentencing addressed pecuniary losses. Although defendant’s failure to object at the time of sentencing renders his restitution arguments unpreserved … , as the record before us does not include any proof to substantiate the amount of restitution ordered, we find it appropriate to exercise our discretion in the interest of justice and remit for the sole purpose of a restitution hearing … . People v Lester, 2024 NY Slip Op 05848, Third Dept 11-21-24

Practice Point: It is the judge, not the prosecutor, who makes a restitution determination, which must be supported by the record.

November 21, 2024

Attorneys, Criminal Law

THE PEOPLE’S FAILURE TO FILE A SECOND FELONY OFFENDER STATEMENT RENDERED THE SENTENCE INVALID AS A MATTER OF LAW (THIRD DEPT).

The Third Department, vacating defendant’s sentence, noted that, absent defendant’s consent, the People’s failure to file a second felony offender statement rendered the sentence invalid as a matter of law:

… [D]efendant first argues that Supreme Court sentenced him illegally as a second felony offender. Although the People note that defendant’s argument is unpreserved, they concede that they neglected to file a second felony offender statement prior to sentencing (see CPL 400.21 [2]). “While we have previously held that substantial compliance with this statute is adequate when the defendant admits the prior felony and that errors or omissions in the statement may be waived by an admission by the defendant, we have also held that compliance with the statute is mandatory and that complete failure to file a second felony offender statement prior to sentencing renders the sentence invalid as a matter of law” … . Accordingly, we vacate the sentence imposed and remit the matter to Supreme Court for the filing of a predicate felony offender statement and resentencing in accordance with the law. People v Kane, 2024 NY Slip Op 05850, Third Dept 11-21-24

Practice Point: Where a defendant does not admit the prior felony, the People’s failure to file a second felony offender statement invalidates the sentence.

November 21, 2024

Civil Procedure, Criminal Law, Evidence, Family Law, Judges

ALTHOUGH THE JUVENILE DELINQUENCY PETITION WAS PROPERLY DISMISSED BECAUSE THERE WAS NO NONHEARSAY EVIDENCE OF THE IDENTITY OF THE ASSAILANT, IT WAS AN ABUSE OF DISCRETION TO DISMISS THE PETITION WITH PREJUDICE (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, agreed the hearsay evidence identifying respondent as the assailant was not sufficient to support the juvenile delinquency petition, the petition should not have been dismissed with prejudice:

… Family Court abused its discretion in dismissing the petition with prejudice. “Where a petition is dismissed as jurisdictionally defective, dismissal is generally without prejudice, and the presentment agency’s proper recourse is to refile the petition” … . The court indicated that the error here was “egregious” because there were no nonhearsay allegations identifying respondent as the individual who committed the charged crime, and that this error could not be remedied by allowing for petitioner to refile. Although this error could not have been remedied by amendment of the petition (see Family Ct Act § 311.5 [2] [b]), it could have been remedied by refiling. Specifically, upon refiling there could be clarification from the deputy as to the specifics of the investigation including, as is relevant here, how the video of the incident was acquired and what that video depicted, based upon the deputy’s personal knowledge after review of the video. This is not a case where the presenting agency will necessarily be unable to establish respondent’s identity … and, therefore, the petition should have been dismissed without prejudice to allow for refiling … . Matter of Savannah F., 2024 NY Slip Op 05860, Third Dept 11-21-24

Practice Point: There was no nonhearsay proof the respondent was the assailant in this juvenile delinquency proceeding. But the petition should not have been dismissed with prejudice because the presenting agency may be able to provide sufficient proof of the identity of the assailant upon refiling.

November 21, 2024

Appeals, Criminal Law, Evidence

DEFENDANT’S STATEMENT WAS SUPPRESSED ON APPEAL, BUT THE FOURTH DEPARTMENT HELD THE ERROR WAS HARMLESS; THE COURT OF APPEALS DETERMINED THE FOURTH DEPARTMENT’S HARMLESS-ERROR FINDING WAS NOT SUPPORTED BY THE RECORD (CT APP).

The Court of Appeals, reversing the Fourth Department, in a full-fledged opinion by Judge Garcia, determined the Fourth Department should not have concluded the failure to suppress defendant’s statement was harmless error. Defendant pled guilty with the intention of appealing the denial of his suppression motion:

… [T]he Appellate Division held that defendant’s statement should have been suppressed, but that, because the gun would still have been admissible at trial, the error was harmless as there was no reasonable possibility that it contributed to defendant’s decision to plead guilty. On this record, however, we cannot say with certainty that the erroneous ruling played no part in that decision, and therefore we reverse. * * *

The record here is ambiguous at best as to defendant’s motivation in pleading guilty. Although defendant asserted during the plea colloquy that he was “pleading guilty because it’s a good deal,” he may only have believed that “in the face of all the evidence” admissible at the time, including his highly incriminating post-arrest statement “you saw what I had on me” … . Moreover, when entering his plea, defendant affirmatively sought assurances from the court that he could appeal the suppression determination, indicating the importance he placed on that adverse ruling …. . The People’s argument that defendant may only have been concerned with the court’s suppression of the physical evidence is speculative and insufficient to overcome the high bar for establishing defendant’s independent motivation for the plea. On this record, we cannot say that defendant’s decision to plead guilty was unaffected by the court’s erroneous suppression ruling, and therefore his guilty plea must be vacated. People v Robles, 2024 NY Slip Op 05819, CtApp 11-21-24

Practice Point: Consult this opinion for insight into the difficulty in applying a harmless-error analysis to a guilty plea.

November 21, 2024

Criminal Law, Evidence, Judges

THE TRIAL JUDGE ERRED IN FAILING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE TO THE MURDER CHARGE; THAT FAILURE ALSO MAY HAVE TAINTED THE CRIMINAL-POSSESSION-OF-A-WEAPON CONVICTION, WHICH REQUIRES THE INTENT TO USE THE WEAPON UNLAWFULLY (CT APP).

The Court of Appeals, reversing defendant’s murder and criminal possession of a weapon convictions, in a full-fledged opinion by Judge Garcia, determined the judge erred by failing to instruct the jury on the justification defense. The victim threatened defendant with a razor just before shooting. The Court of Appeals noted that if the shooting was justified the “intent to use the weapon unlawfully” element of criminal possession of a weapon may not have been proven:

Defendant was charged with criminal possession of a weapon in the second degree, requiring the People to prove that he possessed the gun with the intent to use it unlawfully against another person … . The model Criminal Jury Instruction provides that “a person acts with intent to use a loaded firearm unlawfully . . . when his . . . conscious . . . purpose is to use that loaded firearm unlawfully against another, and that intent need only exist at the very moment that a person engages in an unlawful use of the firearm against another” … . But if the jury in this case was properly instructed on justification, it might have concluded that defendant acted lawfully when he shot and killed the victim in self-defense. If so, then the jury might have also concluded that defendant lacked the requisite intent (to use unlawfully) for the possession charge … . In other words, it is possible the jury here relied solely on evidence of the potentially justified shooting in finding defendant guilty of possession of the weapon with the intent to use it unlawfully.

To be clear, a jury finding of justification as to the use of a firearm does not preclude that jury from finding that the defendant nevertheless possessed the weapon with intent to use it unlawfully … . But with respect to the possessory offense, the jury must be instructed that, while justification is not a defense to that crime, in the event the jury finds that the shooting was justified, that lawful use of the weapon cannot be considered as proof of the unlawful intent element of the possession charge. For example, the jury’s intent determination may rest on defendant’s conduct “during the continuum of time that he possessed it prior to the shooting” … . People v Castillo, 2024 NY Slip Op 05817, CtApp 11-21-24

Practice Point: If a defendant is charged with murder and criminal possession of a weapon and is entitled to a jury instruction on the the justification defense, the jury should be instructed that it cannot find the defendant possessed the weapon with the intent to use it unlawfully solely on the basis of the shooting, if the shooting is deemed justified.

November 21, 2024

Criminal Law, Evidence

THE POLICE HAD TO “MANIPULATE” THE CHECKS TO DETERMINE THEY WERE FORGED; THEREFORE THE “PLAIN VIEW” EXCEPTION TO THE SEARCH WARRANT REQUIREMENT WAS NOT APPLICABLE; INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department, suppressing evidence seized under the “plain view” exception to the warrant requirement, held the police had to “manipulate” the checks which were in plain view to determine they were forged. Because the nature of the checks was not apparent until they were “manipulated,” the “plain view” exception was not applicable:

… [W]e conclude that the People did not meet their burden of establishing the third element of the plain view exception—i.e., that the incriminating nature of the seized items was immediately apparent. In making such a determination, we must consider whether “the facts available to the [police] officer would warrant a [person] of reasonable caution in the belief . . . that [the] items may be contraband or stolen property or useful as evidence of a crime” … . This is a probable cause standard—i.e., there need not be “certainty or near certainty” about the incriminating nature of the seized items … . That element is not satisfied, however, “where the object [to be seized] must be moved or manipulated before its illegality can be determined” … . Indeed, “[s]uch a search or seizure may not be upheld without proof that the [police] officer who moved or manipulated the object had probable cause to believe that the object was evidence or contraband at the time that it was moved or manipulated” … . Still, “[a] truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a search” … . People v Howard, 2024 NY Slip Op 05733, Fourth Dept 11-15-24

Practice Point: Here the fact the checks were forged was not apparent until the police “manipulated” them. Therefore the “plain view” exception to the search-warrant requirement was not applicable and the checks should have been suppressed.

November 15, 2024

Criminal Law

PROSPECTIVE JUROR WHO SAID HE OR SHE WOULD HOLD THE REFUSAL TO TESTIFY AGAINST THE DEFENDANT SHOULD HAVE BEEN EXCUSED FOR CAUSE; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined a prospective juror’s indication he or she would hold defendant’s refusal to testify against the defendant required excusal “for cause:”

Here, the prospective juror gave “some indication of bias” … by stating that he “[a]bsolutely” might hold it against defendant if defendant chose not to testify … .

Contrary to the court’s determination, the prospective juror did not “give unequivocal assurance that [he could] set aside any bias and render an impartial verdict based on the evidence” … . Although CPL 270.20 (1) (b) “does not require any particular expurgatory oath or ‘talismanic’ words . . . , [a prospective] juror[ ] must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent [the prospective juror] from reaching an impartial verdict” … . “If there is any doubt about a prospective juror’s impartiality, [the] trial court[ ] should err on the side of excusing the juror, since at worst the court will have ‘replaced one impartial juror with another’ ” … . We conclude that the prospective juror’s act of nodding his head affirmatively after the court gave an instruction and posed a question to the entire jury panel was “insufficient to constitute such an unequivocal declaration” … . People v Cheese, 2024 NY Slip Op 05712, Fourth Dept 11-15-24

Practice Point: Here the prospective juror indicated bias requiring excusal for cause by indicating he or she would hold the refusal to testify against the defendant.

November 15, 2024

Appeals, Criminal Law

SUPREME COURT DISMISSED THE INDICTMENT ON SPEEDY-TRIAL GROUNDS, FINDING THAT THE PEOPLE HAD NOT COMPLIED WITH THEIR DISCOVERY OBLIGATIONS AT THE TIME THE PEOPLE INDICATED THEY WERE READY FOR TRIAL; THE DISMISSAL ORDER WAS NEVER SERVED ON THE PEOPLE SO THE 30-DAY APPEAL PERIOD NEVER STARTED RUNNING RENDERING THE PEOPLE’S APPEAL TIMELY; THE FAILURE TO TURN OVER “DEPARTMENT OF CORRECTIONS AND COMMUNITY SERVICES” DOCUMENTS DID NOT VIOLATE THE PEOPLE’S DISCOVERY OBLIGATIONS BECAUSE THE PEOPLE DID NOT POSSESS THOSE DOCUMENTS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) the People’s appeal was timely because defendant never served the order dismissing the indictment on them so the 30-day appeal period never started running, and (2) the People were not obligated to turn over Department of Corrections and Community Supervision (DOCCS) documents to comply with their discovery obligations because the People did not possess those documents:

The Court of Appeals has “interpreted CPL 460.10 (1) (a) ‘to require prevailing party service’—not just the handing out of an order by the court—’to commence the time for filing a notice of appeal’ ” … . Here, the record establishes that the People received a copy of the original order, but there is “no evidence that [defendant] ever served the order as required by CPL 460.10 (1) (a)” … . Inasmuch as the record fails to establish that defendant ever served the People with a copy of the original order, the People’s 30-day period to appeal never began to run and the People’s appeal is therefore timely … . * * *

… [A]ssuming … that the parole officer’s disciplinary records from DOCCS met the relevancy prong as being related to the subject matter of the case, we conclude that the People established that those records did not meet the possessory prong required to prompt their initial discovery obligation with respect thereto (see CPL 245.20 [1] …). “[F]or the purposes of discovery, DOCCS is not a ‘law enforcement’ agency” and is ” ‘outside of the legal or practical control of local prosecutors’ and, therefore, the People cannot be deemed to be in constructive possession of that which DOCCS possesses” … . People v Walker, 2024 NY Slip Op 05662, Fourth Dept 11-15-24

Practice Point: If the defendant wins a motion to dismiss the indictment, the defendant must serve the People with the dismissal order or the People’s 30-day appeal period does not start running.

Practice Point: The People do not violate their discovery obligations by failing to turn over documents which are in the possession of another agency, here the Department of Corrections and Community Services (DOCCS).

November 15, 2024

THERE WAS NO PROOF THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT IN THE PRESENCE OF COUNSEL; GUILTY PLEA VACATED AND SUPERIOR COURT INFORMATION DISMISSED (THIRD DEPT).

THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO DETERMINE RESTITUTION TO THE PROSECUTOR, MATTER REMITTED FOR A HEARING (THIRD DEPT).

THE PEOPLE’S FAILURE TO FILE A SECOND FELONY OFFENDER STATEMENT RENDERED THE SENTENCE INVALID AS A MATTER OF LAW (THIRD DEPT).

ALTHOUGH THE JUVENILE DELINQUENCY PETITION WAS PROPERLY DISMISSED BECAUSE THERE WAS NO NONHEARSAY EVIDENCE OF THE IDENTITY OF THE ASSAILANT, IT WAS AN ABUSE OF DISCRETION TO DISMISS THE PETITION WITH PREJUDICE (THIRD DEPT).

DEFENDANT’S STATEMENT WAS SUPPRESSED ON APPEAL, BUT THE FOURTH DEPARTMENT HELD THE ERROR WAS HARMLESS; THE COURT OF APPEALS DETERMINED THE FOURTH DEPARTMENT’S HARMLESS-ERROR FINDING WAS NOT SUPPORTED BY THE RECORD (CT APP).

THE TRIAL JUDGE ERRED IN FAILING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE TO THE MURDER CHARGE; THAT FAILURE ALSO MAY HAVE TAINTED THE CRIMINAL-POSSESSION-OF-A-WEAPON CONVICTION, WHICH REQUIRES THE INTENT TO USE THE WEAPON UNLAWFULLY (CT APP).

THE POLICE HAD TO “MANIPULATE” THE CHECKS TO DETERMINE THEY WERE FORGED; THEREFORE THE “PLAIN VIEW” EXCEPTION TO THE SEARCH WARRANT REQUIREMENT WAS NOT APPLICABLE; INDICTMENT DISMISSED (FOURTH DEPT).

PROSPECTIVE JUROR WHO SAID HE OR SHE WOULD HOLD THE REFUSAL TO TESTIFY AGAINST THE DEFENDANT SHOULD HAVE BEEN EXCUSED FOR CAUSE; NEW TRIAL ORDERED (FOURTH DEPT).

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