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CHALLENGE TO THE JURY INSTRUCTION ON CAUSATION OF DEATH IS SUBJECT TO THE PRESERVATION REQUIREMENT; DEFENDANT’S FAILURE TO OBJECT PRECLUDES REVIEW; STRONG DISSENT ARGUED THE JURY INSTRUCTION IS REVIEWABLE BECAUSE IT RELIEVED THE PEOPLE OF THEIR BURDEN OF PROOF.

The First Department, over an extensive dissent, determined defendant's appellate challenge to the jury instruction on causation of death was subject to the preservation requirement. The victim was assaulted by the defendant and died later at the hospital. The defense presented an expert who testified the victim was improving until he fell in the hospital. The cause of death, according to the defense expert, was the hospital's negligence in treating the victim after the fall. The defendant did not object to the causation jury instruction. The dissent would have reversed, either finding the preservation requirement did not apply because the jury instruction relieved the People of their burden of proof, or in the interest of justice:

Defendant failed to raise any challenge to the court's charge regarding causation of death at a time when the court could have easily rephrased the instruction. The issue is therefore unpreserved for appellate review (see CPL 470.05[2]). The claimed error does not fall within the “very narrow exception” discussed in People v Thomas (50 NY2d 467, 471 [1980]), as the dissent suggests. That narrow exception is only applicable “when the procedure followed at trial was at basic variance with the mandate of law prescribed by Constitution or statute” (id.). Here, as was the case in Thomas, preservation was necessary because defendant essentially claims that “a portion of the charge could, in the particular case, be interpreted as having a contrary effect” to the burden of proof charge that was correctly stated by the court (id. at 472). Nor is the exercise of interest of justice jurisdiction warranted; defendant was not deprived of a fair trial (see CPL 470.15[6] [a]). As an alternative holding, we consider the charge, viewed as a whole, to have properly conveyed the law regarding whether the assault was a sufficiently direct cause of the victim's death … . People v Castillo, 2016 NY Slip Op 02709, 1st Dept 4-7-16


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DETECTIVE SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY AS AN EXPERT ABOUT THE ROLES PLAYED BY THE PEOPLE OVERHEARD IN RECORDED PHONE CALLS IN THIS DRUG CONSPIRACY CASE, ERROR DEEMED HARMLESS HOWEVER.

Although deemed harmless error in this drug conspiracy prosecution, the Second Department determined a detective should not have been allowed to testify (as an expert) about the alleged roles played by people overheard in recorded phone calls:

It was proper to permit the detective to describe certain practices and define certain terms that have a “fixed meaning . . . within the narcotics world” … . However, it was error to permit the prosecutor to elicit testimony as to the roles played by the individuals overheard in the phone calls, and the relationships among them, for example, that several were “runners or workers” for the defendant or codefendant, and the meanings of certain “case-specific” terms that he had discovered in the course of the investigation. As the Court of Appeals cautioned in People v Inoa, where, as here, “the trial court qualifie[s] a government agent, intimately involved in the investigation of the case and development of the prosecution, to testify as an expert,” there is a danger that the agent will end up “testifying beyond any cognizable field of expertise as an apparently omniscient expositor of the facts of the case” (id. at 473), thereby usurping the role of the jury. Also improper was the testimony, elicited by the prosecutor from members of the surveillance teams who observed the defendant and his associates at the locations described in the phone calls, that what they witnessed was consistent with a drug transaction … . Nevertheless, we find that the improperly admitted testimony was harmless, as the proof of the defendant’s commission of the charged crimes was overwhelming, and there is “no significant probability that, but for the error, the verdict . . . would have been less adverse” … . People v Melendez, 2016 NY Slip Op 02667, 2nd Dept 4-6-16

CRIMINAL LAW DETECTIVE SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY AS AN EXPERT ABOUT THE ROLES PLAYED BY THE PEOPLE OVERHEARD IN RECORDED PHONE CALLS IN THIS DRUG CONSPIRACY CASE, ERROR DEEMED HARMLESS HOWEVER)/EVIDENCE (CRIMINAL LAW, DETECTIVE SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY AS AN EXPERT ABOUT THE ROLES PLAYED BY THE PEOPLE OVERHEARD IN RECORDED PHONE CALLS IN THIS DRUG CONSPIRACY CASE, ERROR DEEMED HARMLESS HOWEVER)/EXPERT OPINION (CRIMINAL LAW, DETECTIVE SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY AS AN EXPERT ABOUT THE ROLES PLAYED BY THE PEOPLE OVERHEARD IN RECORDED PHONE CALLS IN THIS DRUG CONSPIRACY CASE, ERROR DEEMED HARMLESS HOWEVER)

JUDICIAL DIVERSION PROGRAM AVAILABLE TO DEFENDANTS CHARGED WITH BOTH QUALIFYING OFFENSES AND OFFENSES WHICH ARE NEITHER QUALIFYING NOR DISQUALIFYING.

The First Department, in a full-fledged opinion by Justice Sweeny, determined the defendant was eligible for judicial diversion where defendant was charged with both statutorily qualifying offenses and other offenses which were nowhere defined as qualifying or disqualifying offenses:

The Legislature amended the DLRA [Drug Law Reform Act] in 2009, enacting CPL 216.00 and 216.05 to create a mechanism for judicial diversion. Under this program, eligible felony offenders whose drug or alcohol abuse contributed to their criminal conduct, may, at the discretion of the court, be afforded the opportunity to avoid a felony conviction and a prison sentence by successfully participating in a judicially supervised substance abuse program. Unlike prior drug offense programs, judicial diversion does not require the prosecutor’s consent … . * * *

… [The statute] sets forth a list of disqualifying offenses/conditions that prevent a defendant from qualifying for judicial diversion, although as noted, even some of those offenses may not prevent disqualification with the People’s consent. In applying the principle “espressio unius est exclusio alterius,” “an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” … . The inescapable conclusion is that the Legislature’s decision not to list certain offenses as disqualifying means their mere inclusion in an indictment will not prevent an otherwise eligible defendant from making an application for judicial diversion. People v Smith, 2016 NY Slip Op 02596, 1st Dept 4-5-16

CRIMINAL LAW (JUDICIAL DIVERSION PROGRAM AVAILABLE TO DEFENDANTS CHARGED WITH BOTH QUALIFYING OFFENSES AND OFFENSES WHICH ARE NEITHER QUALIFYING NOR DISQUALIFYING)/JUDICIAL DIVERSION PROGRAM (JUDICIAL DIVERSION PROGRAM AVAILABLE TO DEFENDANTS CHARGED WITH BOTH QUALIFYING OFFENSES AND OFFENSES WHICH ARE NEITHER QUALIFYING NOR DISQUALIFYING)

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FATHER DEEMED TO HAVE CONSENTED ON BEHALF OF HIS INFANT SON TO THE RECORDING OF THREATS MADE AGAINST HIS SON BY DEFENDANT; ABSENT THE VICARIOUS CONSENT, THE RECORDING WOULD HAVE CONSTITUTED ILLEGAL EAVESDROPPING AND WOULD NOT HAVE BEEN ADMISSIBLE IN COURT.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a three-judge dissent, determined father’s recording of threats made to his infant son by mother’s boyfriend was not eavesdropping, which is prohibited by statute. Rather, father was deemed to have consented to the recording on his son’s behalf. Father had attempted to call the child’s mother. For some reason, the cell phone call went through but was not picked up by anyone. Father could hear the boyfriend threaten to beat his son. Using a cell phone function, the boyfriend’s words were recorded. The boyfriend was subsequently arrested for assault against the child and endangering the welfare of a child. The recording was played at trial. Recording conversations is prohibited in New York as illegal eavesdropping, unless one of the parties to the conversation consents. Here, the Court of Appeals determined the eavesdropping prohibition did not apply because the child was deemed to have consented to the recording. In addition, the Court of Appeals found the trial judge’s erroneous jury instruction, which allowed the jury to consider an accomplice theory not charged in the indictment, constituted harmless error. The court concluded, based upon the trial evidence, the jury could not have convicted the defendant of any offense other than what was charged. With respect to the recorded conversation, the court wrote:

There is no basis in legislative history or precedent for concluding that the New York Legislature intended to subject a parent or guardian to criminal penalties for the act of recording his or her minor child’s conversation out of a genuine concern for the child’s best interests. By contrast, the vicarious consent doctrine recognizes the long-established principle that the law protects the right of a parent or guardian to take actions he or she considers to be in his or her child’s best interests. Yet it also recognizes important constraints on that right, by requiring that the parent or guardian believe in good faith that it is necessary for the best interests of the child to make the recording, and that this belief be objectively reasonable. People v Badalamenti, 2016 NY Slip Op 02556, CtApp 2016

CRIMINAL LAW (EASVESDROPPING, FATHER DEEMED TO HAVE CONSENTED ON BEHALF OF HIS INFANT SON TO THE RECORDING OF THREATS MADE AGAINST HIS SON BY DEFENDANT; ABSENT THE VICARIOUS CONSENT, THE RECORDING WOULD HAVE CONSTITUTED ILLEGAL EAVESDROPPING AND WOULD NOT HAVE BEEN ADMISSIBLE IN COURT)/EVIDENCE (EASVESDROPPING, FATHER DEEMED TO HAVE CONSENTED ON BEHALF OF HIS INFANT SON TO THE RECORDING OF THREATS MADE AGAINST HIS SON BY DEFENDANT; ABSENT THE VICARIOUS CONSENT, THE RECORDING WOULD HAVE CONSTITUTED ILLEGAL EAVESDROPPING AND WOULD NOT HAVE BEEN ADMISSIBLE IN COURT)/EASVESROPPING FATHER DEEMED TO HAVE CONSENTED ON BEHALF OF HIS INFANT SON TO THE RECORDING OF THREATS MADE AGAINST HIS SON BY DEFENDANT; ABSENT THE VICARIOUS CONSENT, THE RECORDING WOULD HAVE CONSTITUTED ILLEGAL EAVESDROPPING AND WOULD NOT HAVE BEEN ADMISSIBLE IN COURT)/PARENT-CHILD (EASVESDROPPING, FATHER DEEMED TO HAVE CONSENTED ON BEHALF OF HIS INFANT SON TO THE RECORDING OF THREATS MADE AGAINST HIS SON BY DEFENDANT; ABSENT THE VICARIOUS CONSENT, THE RECORDING WOULD HAVE CONSTITUTED ILLEGAL EAVESDROPPING AND WOULD NOT HAVE BEEN ADMISSIBLE IN COURT)

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COURT PROPERLY EXCLUDED SPECULATIVE EVIDENCE OF THIRD-PARTY CULPABILITY; THERE IS NO HEIGHTENED STANDARD FOR ADMISSIBILITY OF THIRD-PARTY CULPABILITY EVIDENCE; RATHER THE USUAL PROBATIVE VS PREJUDICIAL BALANCING TEST APPLIES.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined, under an abuse of discretion standard, evidence of third-party culpability was properly excluded as speculative. Defendant was not, therefore, deprived of his constitutional right to present a complete defense when the trial court precluded evidence the defendant’s brother, Warren, was the beneficiary of a $500,000 life insurance policy taken out by the murder victim.  Here defense counsel made no specific attempt to demonstrate Warren killed the victim. Defense counsel made only vague assertions “others” could have committed the crime. The Court of Appeals made it clear there is no heightened standard for the admissibility of evidence of third-party culpability. Rather courts should apply the usual balancing test and exclude such evidence where it has slight probative value and a strong potential for undue prejudice, delay and confusion or where the evidence is so remote it does not connect the third party to the crime:

… [A]dmission of third-party culpability evidence does not necessarily require a specific accusation that an identified individual committed the crime. For example, a proffer of an unknown DNA profile may be sufficient. And we reject the trial court’s assertion that such a specific accusation “is an essential element of third-party culpability.” Such a requirement would conflict with the balancing analysis that we … reaffirm today. Nevertheless, defense counsel’s argument must be assessed based on the proffer as articulated … . The trial court was within its discretion in finding that proffer speculative and in determining the evidence to support it would have caused undue delay, prejudice, and confusion. People v Powell, 2016 NY Slip Op 02555, CtApp 4-5-16

CRIMINAL LAW (CRIMINAL LAW, COURT PROPERLY EXCLUDED SPECULATIVE EVIDENCE OF THIRD-PARTY CULPABILITY)/EVIDENCE (CRIMINAL LAW, THIRD-PARTY CULPABILITY, THERE IS NO HEIGHTENED STANDARD FOR ADMISSIBILITY OF THIRD-PARTY CULPABILITY EVIDENCE, RATHER THE USUAL PROBATIVE VS PREJUDICIAL BALANCING TEST APPLIES)/THIRD PARTY CULPABILITY (CRIMINAL LAW, THERE IS NO HEIGHTENED STANDARD FOR ADMISSIBILITY OF THIRD-PARTY CULPABILITY EVIDENCE, RATHER, THE USUAL PROBATIVE VS PREJUDICIAL BALANCING TEST APPLIES)

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DEFENDANT’S CHALLENGES TO THE HARVESTING FOR USE AT TRIAL OF RECORDINGS OF PHONE CALLS MADE BY INMATES DURING PRE-TRIAL INCARCERATION REJECTED; THE PRACTICE HOWEVER WAS NOT CONDONED AND THE PREJUDICE TO DEFENDANTS WHO CANNOT MAKE BAIL WAS EXPRESSLY NOTED.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, with a concurring opinion by Judge Pigott, rejected defendant’s challenge to the use at trial of recordings of his phone calls made from Rikers Island during pre-trial incarceration. Prosecutors routinely request recordings of nonprivileged inmate phone calls and pour through them for use at trial. The Court of Appeals did not condone the practice, and the concurring opinion laid out how access to the phone calls prejudices defendants who cannot make bail:

In order to properly address and frame defendant’s legal claims, we first clarify what defendant does not allege on this appeal. He does not allege that any conversations with his defense counsel were recorded and admitted at trial, or that the Department permits such monitoring. To the contrary, defendant recognizes that the Operations Order expressly prohibits the recording and monitoring of conversations with an inmate’s attorney. Nor does defendant assert that the intention of the City’s regulation or the Department’s Operations Order is to create and collect information strictly for use by the prosecution against a detainee at trial. Defendant candidly admits that the Department has a legitimate interest in recording and monitoring detainee telephone communications.

Defendant instead challenges what he describes as the Department’s practice of “automatic, unmonitored harvesting of intimate conversations of pre-trial inmates,” and the subsequent dissemination of the Department’s recordings to District Attorneys’ offices for use in criminal prosecutions. Defendant claims the practice violated his right to counsel, exceeds the scope of the Department’s regulatory authority, and was conducted without defendant’s consent. The claims are either without merit or unpreserved and therefore do not warrant reversal and a new trial. People v Johnson, 2016 NY Slip Op 02552, CtApp 4-5-16

CRIMINAL LAW (EVIDENCE, DEFENDANT’S CHALLENGES TO THE HARVESTING FOR USE AT TRIAL OF RECORDINGS OF PHONE CALLS MADE BY INMATES DURING PRE-TRIAL INCARCERATION REJECTED; THE PRACTICE HOWEVER WAS NOT CONDONED AND THE PREJUDICE TO DEFENDANTS WHO CANNOT MAKE BAIL WAS EXPRESSLY NOTED)/EVIDENCE (CRIMINAL LAW, DEFENDANT’S CHALLENGES TO THE HARVESTING FOR USE AT TRIAL OF RECORDINGS OF PHONE CALLS MADE BY INMATES DURING PRE-TRIAL INCARCERATION REJECTED; THE PRACTICE HOWEVER WAS NOT CONDONED AND THE PREJUDICE TO DEFENDANTS WHO CANNOT MAKE BAIL WAS EXPRESSLY NOTED)/INMATES (RECORDED PHONE CALLS, DEFENDANT’S CHALLENGES TO THE HARVESTING FOR USE AT TRIAL OF RECORDINGS OF PHONE CALLS MADE BY INMATES DURING PRE-TRIAL INCARCERATION REJECTED; THE PRACTICE HOWEVER WAS NOT CONDONED AND THE PREJUDICE TO DEFENDANTS WHO CANNOT MAKE BAIL WAS EXPRESSLY NOTED)

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THE TRIAL JUDGE’S FAILURE TO ACT ON DEFENSE COUNSEL’S OBJECTION TO T-SHIRTS REMEMBERING THE MURDER VICTIM WAS ERROR; UNDER THE FACTS, THE ERROR WAS HARMLESS.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, with a three-judge concurring opinion, determined defendant was not deprived of a fair trial by the trial judge’s failure to take any action when defense counsel informed him family members were wearing T-shirts remembering the murder victim. The Court of Appeals found the trial judge’s failure to act was error. But, under the facts, the error did not deprive defendant of a fair trial. The fact that the trial judge noticed family members had worn the T-shirts before the day when defense counsel objected did not bring up those prior occurrences on appeal. Defense counsel did not elicit a ruling from the trial judge (by moving for a mistrial) based on the pror occurrences, therefore only the wearing of the T-shirts on the day counsel objected was before the court:

We conclude … that although spectator displays depicting a deceased victim should be prohibited in the courtroom during trial, and although the trial court here erred in refusing to intervene upon defense counsel’s request, the error is subject to harmless error analysis. Defendant contends that the deprivation of his right to a fair trial can never be considered harmless. We agree only insofar as there can be no harmless error analysis if an appellate court concludes that spectator misconduct was so egregious and the trial court’s response so inadequate that the defendant was deprived of a fair trial. Where “there has been such error of a trial court . . . or such other wrong as to have operated to deny any individual defendant his fundamental right to a fair trial, the reviewing court must reverse the conviction and grant a new trial,” without regard to whether the proof of guilt was overwhelming or whether “the errors contributed to the defendant’s conviction”… . Here, however, the spectator conduct was not so egregious that defendant was deprived of a fair trial.

A per se rule of reversal is inappropriate in the context of spectator displays of a deceased victim’s image because such displays may vary widely. For example, the display could range from a small button worn on a spectator’s clothing to a life-size image. A trial court’s refusal to intervene in every such display upon defense counsel’s objection is error. However, not every such display requires the drastic remedy of a mistrial, or an appellate reversal. The trial court or the appellate court, respectively, must make that determination based on the unique circumstances of each case.

Under the particular circumstances of this case, we conclude that the trial court’s error in failing to instruct the spectators to remove or cover the shirts upon defense counsel’s objection is harmless. Consequently, defendant was not deprived of a fair trial. People v Nelson, 2016 NY Slip Op 02554, CtApp 4-5-16

CRIMINAL LAW (THE TRIAL JUDGE’S FAILURE TO ACT ON DEFENSE COUNSEL’S OBJECTION TO T-SHIRTS REMEMBERING THE MURDER VICTIM WAS ERROR; UNDER THE FACTS, THE ERROR WAS HARMLESS)/SPECTATOR DISPLAYS (CRIMINAL LAW, THE TRIAL JUDGE’S FAILURE TO ACT ON DEFENSE COUNSEL’S OBJECTION TO T-SHIRTS REMEMBERING THE MURDER VICTIM WAS ERROR; UNDER THE FACTS, THE ERROR WAS HARMLESS)/APPEALS (PRESERATION OF ERROR, CRIMINAL LAW, DEFENSE COUNSEL’S FAILURE TO ELICIT A RULING ON INSTANCES OF SPECTATOR DISPLAYS ON DAYS PRIOR TO THE DAY WHEN COUNSEL OBJECTED, THE PRIOR INSTANCES WERE NOT BEFORE THE COURT ON APPEAL)/PRESERVATION OF ERROR (CRIMINAL LAW, DEFENSE COUNSEL’S FAILURE TO ELICIT A RULING ON INSTANCES OF SPECTATOR DISPLAYS ON DAYS PRIOR TO THE DAY WHEN COUNSEL OBJECTED, THE PRIOR INSTANCES WERE NOT BEFORE THE COURT ON APPEAL)

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THE DEFENSE HAD SEVERAL OPPORTUNITIES TO DISCOVER THE JUDGE’S SENTENCE-PROMISE MISTAKE, THEREFORE THE PRESERVATION REQUIREMENT APPLIED TO DEFENDANT’S CHALLENGE TO THE VALIDITY OF HIS GUILTY PLEA.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a two-judge dissenting opinion, reversing the Appellate Division, determined defendant’s failure to preserve his challenge to the validity of his guilty plea precluded review in the Court of Appeals. The matter was remitted to the Appellate Division which could entertain the appeal under its interest of justice jurisdiction. The opinion attempts to clarify when a defendant “lacks a reasonable opportunity to object to a fundamental defect in the plea” such that the preservation requirement does not apply. Here the sentencing court made an initial mistake indicating defendant’s sentence would be three years, where the minimum sentence was six years. Defendant argued that his guilty plea was induced by the judge’s mistake. The Court of Appeals found there were many subsequent opportunities to discover the mistake and preserve the error. The defendant violated the terms of his release pending sentencing, an Outley hearing was held, and a six-year sentence, described as an “enhanced sentence,” was ultimately imposed:

… [T]he defense had multiple opportunities to preserve defendant’s current challenge to his plea and seek clarification of the matter, as such opportunities arose from, inter alia: the court’s comment at the plea proceeding about its uncertainty of the legality of the promised sentencing options; the court’s statements at the plea proceeding about the determinative nature of defendant’s predicate felony offender status; the numerous adjournments, the Outley hearing and the post-hearing court appearance that transpired between the plea and sentencing proceedings, which could have allowed counsel and defendant to inquire further into the legality of the promised sentencing options and defendant’s understanding of the plea; and the court’s comments at sentencing, which offered an opening for counsel to confirm the legality of the court’s sentencing options and its effect on the validity of the plea. By failing to seize upon these opportunities to object or seek additional pertinent information, defense counsel failed to preserve defendant’s claim for appellate review … . People v Williams, 2016 NY Slip Op 02551, CtApp 4-5-16

CRIMINAL LAW (PRESERVATION OF ERROR, THE DEFENSE HAD SEVERAL OPPORTUNITIES TO DISCOVER THE JUDGE’S SENTENCE-PROMISE MISTAKE, THEREFORE THE PRESERVATION REQUIREMENT APPLIED TO DEFENDANT’S CHALLENGE TO THE VALIDITY OF HIS GUILTY PLEA)/APPEALS (PRESERVATION OF ERROR, THE DEFENSE HAD SEVERAL OPPORTUNITIES TO DISCOVER THE JUDGE’S SENTENCE-PROMISE MISTAKE, THEREFORE THE PRESERVATION REQUIREMENT APPLIED TO DEFENDANT’S CHALLENGE TO THE VALIDITY OF HIS GUILTY PLEA)/PLEA BARGAIN (PRESERVATION OF ERROR, THE DEFENSE HAD SEVERAL OPPORTUNITIES TO DISCOVER THE JUDGE’S SENTENCE-PROMISE MISTAKE, THEREFORE THE PRESERVATION REQUIREMENT APPLIED TO DEFENDANT’S CHALLENGE TO THE VALIDITY OF HIS GUILTY PLEA)/PRESERVATION OF ERROR (THE DEFENSE HAD SEVERAL OPPORTUNITIES TO DISCOVER THE JUDGE’S SENTENCE-PROMISE MISTAKE, THEREFORE THE PRESERVATION REQUIREMENT APPLIED TO DEFENDANT’S CHALLENGE TO THE VALIDITY OF HIS GUILTY PLEA)

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TRIAL JUDGE GAVE TOO MUCH ADVICE TO THE PROSECUTOR ON THE ADMISSION AND USE OF EVIDENCE, NEW TRIAL ORDERED.

The Third Department reversed defendant's conviction because the trial judge gave excessive procedural advice to the prosecutor (ADA). During several sidebars, the judge explained to the ADA how to lay a proper foundation for the admission of evidence and how to use evidence to refresh a witness's recollection. The judge's well-intentioned assistance was deemed to have created the perception the prosecution received a tactical advantage:

During the course of the trial, the ADA in question demonstrated difficulty in laying the proper foundation for the admission into evidence of certain photographs and bank records and in utilizing a particular document to refresh a witness's recollection. In response, County Court conducted various sidebars, during the course of which the court, among other things, explained the nature of defense counsel's objections, outlined the questions that the ADA needed to ask of the testifying witnesses, referred the ADA to a certain evidentiary treatise and afforded him a recess in order to consult and review the appropriate section thereof. Without further belaboring the point, suffice it to say that our review of the record confirms what County Court itself acknowledged — namely, that in attempting to “explain[] some of the law” and in an effort to avoid portraying defense counsel as “obstructionist,” it “explained one thing too many, in all fairness.” As County Court's assistance in this regard — although well-intentioned — arguably created the perception that the People were receiving an unfair tactical advantage, we are persuaded that this matter should be remitted for a new trial … . People v Kocsis, 2016 NY Slip Op 02480, 3rd Dept 3-31-16

CRIMINAL LAW (TRIAL JUDGE GAVE TOO MUCH ADVICE TO THE PROSECUTOR ON THE ADMISSION AND USE OF EVIDENCE, NEW TRIAL ORDERED)/JUDGES (CRIMINAL LAW, TRIAL JUDGE GAVE TOO MUCH ADVICE TO THE PROSECUTOR ON THE ADMISSION AND USE OF EVIDENCE, NEW TRIAL ORDERED)

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DEFENSE COUNSEL’S DECISION TO FOREGO A REQUEST TO REOPEN THE SUPPRESSION HEARING BASED UPON TRIAL TESTIMONY WAS SUPPORTED BY A SOUND STRATEGIC REASON, COUNSEL WAS THEREFORE NOT INEFFECTIVE.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over an extensive two-judge dissenting opinion, determined defense counsel's failure to request the reopening of the suppression hearing based upon trial testimony did not constitute ineffective assistance. The Appellate Division had previously reversed the trial court's suppression of defendant's statements. At trial the detective who took the statements from the defendant gave an account which differed from the detective's hearing testimony. The inconsistent testimony related to the second of the two statements made by the defendant during interrogation. In response to defendant's motion to vacate the judgment of conviction on ineffective-assistance grounds, the People provided an affidavit from defense counsel which explained the strategy underlying the decision to forego a request to reopen the suppression hearing. “… Counsel averred that he had believed that defendant's second statement would almost certainly be admitted into evidence at trial and that therefore he had focused on using the exculpatory preface of the first statement to cast doubt on the probative worth of defendant's more incriminating subsequent comments.” The court found the explanation of the defense strategy to be sound:

Defense counsel did not deprive defendant of the effective assistance of counsel when he decided not to move to reopen the suppression hearing … . Because the Appellate Division had rejected counsel's original arguments for suppression of the [second] statement prior to trial and cited a number of factors that remained extant throughout the proceedings in this case, counsel reasonably thought that the statement would be admitted into evidence regardless of any new developments, and instead of making what he sensibly thought was a longshot motion to reopen the hearing, he decided to use the exculpatory portion of defendant's first statement to undermine the credibility of the second statement and place it in context. People v Gray, 2016 NY Slip Op 02476, CtApp 3-31-16

CRIMINAL LAW (DEFENSE COUNSEL'S DECISION TO FOREGO A REQUEST TO REOPEN THE SUPPRESSION HEARING BASED UPON TRIAL TESTIMONY WAS SUPPORTED BY A SOUND STRATEGIC REASON, COUNSEL WAS THEREFORE NOT INEFFECTIVE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL'S DECISION TO FOREGO A REQUEST TO REOPEN THE SUPPRESSION HEARING BASED UPON TRIAL TESTIMONY WAS SUPPORTED BY A SOUND STRATEGIC REASON, COUNSEL WAS THEREFORE NOT INEFFECTIVE)/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, DEFENSE COUNSEL'S DECISION TO FOREGO A REQUEST TO REOPEN THE SUPPRESSION HEARING BASED UPON TRIAL TESTIMONY WAS SUPPORTED BY A SOUND STRATEGIC REASON, COUNSEL WAS THEREFORE NOT INEFFECTIVE)/EVIDENCE (CRIMINAL LAW, DEFENSE COUNSEL'S DECISION TO FOREGO A REQUEST TO REOPEN THE SUPPRESSION HEARING BASED UPON TRIAL TESTIMONY WAS SUPPORTED BY A SOUND STRATEGIC REASON, COUNSEL WAS THEREFORE NOT INEFFECTIVE)

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