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REVERSIBLE ERROR TO READ BACK TO THE JURY THE PROSECUTOR’S SUMMATION BUT NOT THE DEFENSE SUMMATION.

The Fourth Department determined the trial judge's reading back (to the jury) of only the prosecutor's summation was reversible error:

County Court abused its discretion in reading back the prosecutor's summation without also reading back the defense summation.  * * *

Pursuant to CPL 310.30, “the jury can request a reading of not only evidentiary material, but also any material which is pertinent to its deliberation, including the summations, and the trial court must give such requested information or instruction as [it] deems proper' ” … . We agree with defendant that the court abused its discretion in reading back only the prosecutor's summation under the circumstances presented here. The evidence of defendant's guilt is not overwhelming, and the jurors were clearly divided at times during their deliberations, as demonstrated by their frequent requests for guidance from the court through numerous notes. People v Rivers, 2016 NY Slip Op 03327, 4th Dept 4-29-16


PRISONER CONVICTED OF A CRIME COMMITTED WHEN HE WAS SIXTEEN AND SUBJECT TO A LIFE SENTENCE IS CONSTITUTIONALLY ENTITLED TO A PAROLE HEARING WHICH TAKES HIS YOUTH AT THE TIME OF THE OFFENSE INTO ACCOUNT.

The Third Department, in a full-fledged opinion by Justice McCarthy, over a concurrence and a two-justice partial dissent, determined petitioner was entitled to a de novo parole hearing in which his age at the time of the offense (16) is taken into account. Claimant was convicted of strangling his 14-year-old girlfriend and was sentenced to 22 years to life. Since serving 22 years in 2000, claimant, now 54, has been denied parole nine times. The Third Department ruled that the Eighth Amendment protection against cruel and unusual punishment required that the parole board consider petitioner's youth at the time of the offense, noting that claimant has a right not to be punished with a life sentence if the crime reflects transient immaturity:

The [Parole] Board, as the entity charged with determining whether petitioner will serve a life sentence, was required to consider the significance of petitioner's youth and its attendant circumstances at the time of the commission of the crime before making a parole determination. That consideration is the minimal procedural requirement necessary to ensure the substantive Eighth Amendment protections set forth in Graham v Florida (560 US 48 [2010]), Miller v Alabama (___ US ___, 132 S Ct 2455 [2012]) and Montgomery v Louisiana (___ US ___, 136 S Ct 718 [2016]). * * *

… [T]he Supreme Court of the United States held in Miller v Alabama (supra) that mandatory sentences of life without the possibility of parole for juvenile homicide offenders violate the Eighth Amendment's prohibition on cruel and unusual punishment (id. at 2460). As that Court has since clarified, a substantive rule announced in Miller is “that life without parole is an excessive sentence for children whose crimes reflect transient immaturity” (Montgomery v Louisiana, 136 S Ct at 735). The Court considered this guarantee in the context of the sentencing stage, and it found that the “procedural requirement necessary to implement [this] substantive guarantee” is “a hearing where youth and its attendant characteristics are considered” for the purpose of “separat[ing] those juveniles who may be sentenced to life without parole from those who may not” … . * * *

A parole board is no more entitled to subject an offender to the penalty of life in prison in contravention of this rule than is a legislature or a sentencing court. Matter of Hawkins v New York State Dept. of Corr. & Community Supervision, 2016 NY Slip Op 03236, 3rd Dept 4-28-16


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DEFENDANT SHOULD HAVE BEEN PRESENT WHEN DEFENSE COUNSEL, DURING THE TRIAL, REQUESTED TO BE RELIEVED FROM REPRESENTING DEFENDANT, NEW TRIAL ORDERED.

The First Department, reversing defendant's conviction, determined defendant should have been present when defense counsel explained his concerns about defendant to the judge and asked to be relieved from representing the defendant. The request was denied:

In conducting a colloquy on defense counsel's request to be relieved, the court erred in failing to permit defendant to provide any input, or to even be present. At least by the time that the substance of counsel's ex parte application became clear, defendant should have been included in the proceeding.

…[T]his proceeding was an “ancillary proceeding[] [at which] he . . . may have [had] something valuable to contribute” … , and thus that his exclusion from it was error. While defendant may not have been able to justify counsel's removal, we cannot say that the “new matter” brought to light at the ex parte proceeding — where counsel revealed the content of a privileged communication with the court, and expressed the belief that defendant's criticisms of his performance were insincere attempts to sow error in the record — implicated “no potential for meaningful input from [] defendant” … on the subject of whether continued representation by counsel was appropriate.

The proceeding also implicated the court's obligation to make a “minimal inquiry” regarding whether the new facts justified substitution of counsel… . People v Moya, 2016 NY Slip Op 03241, 1st Dept 4-28-16


DNA TEST RESULTS DEEMED TESTIMONIAL HEARSAY TRIGGERING DEFENDANT’S RIGHT TO CONFRONT THE ANALYST(S) WITH FIRST-HAND KNOWLEDGE OF CRUCIAL STAGES OF THE ANALYSIS.

The Court of Appeals, in an extensive opinion by Judge DiFiore, over an equally extensive three-judge dissenting opinion, determined the results of DNA testing, which matched defendant's DNA to that found on a weapon, should not have been admitted based solely on the testimony of a laboratory analyst who did not witness crucial aspects of the testing. The evidence was deemed “testimonial” requiring the People to produce a witness with first-hand knowledge who can be cross-examined about essential aspects of the analysis:

Here, there was a criminal action pending against defendant, and the gun, found in the basement of a multifamily dwelling where defendant lived, was evidence seized by police for that prosecution. Swabs from the gun were then tested by an accredited public DNA crime laboratory with the primary (truly, the sole) purpose of proving a particular fact in a criminal proceeding — that defendant possessed the gun and committed the crime for which he was charged. The testing analysts purposefully recorded the DNA profile test results, thereby providing the very basis for the scientific conclusions rendered thereon. Under these circumstances, the laboratory reports as to the DNA profile generated from the evidence submitted to the laboratory by the police in a pending criminal case were testimonial. The DNA profiles were generated in aid of a police investigation of a particular defendant charged by an accusatory instrument and created for the purpose of substantively proving the guilt of a defendant in his pending criminal action. * * *

… [W]e conclude that it is the generated numerical identifiers and the calling of the alleles at the final stage of the DNA typing that effectively accuses defendant of his role in the crime charged. … [A] laboratory that uses a … multiple-analyst model, may adapt their operation so that a single analyst is qualified to testify as to the DNA profile testing. For example, an analyst who generated the DNA profile from one sample may also observe the final stage of testing or retesting involved in the generation of the other profile. Nor do we suggest that, when the testing analysts are unavailable, a fully qualified … expert … cannot testify after analyzing the necessary data, including an independent analysis of the computer imaging from the software used for calling the alleles and recording their separate and distinct analysis. Thus, the claim of a need for a horde of analysts is overstated and a single analyst, particularly the one who performed, witnessed or supervised the generation of the critical numerical DNA profile, would satisfy the dictates of Crawford [541 US 36] and Bullcoming [564 US 647]. People v John, 2016 NY Slip Op 03208. CtApp 4-28-16


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DEFENDANT RAISED SUBSTANTIVE FACTUAL DISPUTES ABOUT THE EFFICACY AND LEGALITY OF METHODS USED BY THE POLICE TO IDENTIFY HIS IP ADDRESS AND THE CONTENTS OF HIS COMPUTER, SUPPRESSION HEARING WAS REQUIRED.

The Second Department, in this child pornography case, determined Supreme Court should not have denied defendant's motion to suppress evidence seized from his computer without a hearing. The defense motion papers raised substantive factual disputes concerning the efficacy and legality of methods and software used by the police to identify defendant's IP address and the contents of defendant's computer, issues which can only be resolved by a hearing:

In determining a motion to suppress evidence, the court “is required to grant a hearing if the defendant raise[s] a factual dispute on a material point which must be resolved before the court can decide the legal issue' of whether evidence was obtained in a constitutionally permissible manner” … . “[T]he sufficiency of [a] defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant's access to information” … .

In his omnibus motion, the defendant contended that the search warrant was not supported by probable cause. The defendant's motion included detailed factual allegations regarding the functioning of peer-to-peer networks and, based on these assertions, challenged the detective's contention in the warrant application that he was able to identify child pornography files that actually existed on the defendant's computer. In his separate suppression motion, the defendant raised a factual dispute, inter alia, as to whether the use of certain software or other activity by the investigating detective prior to securing the warrant constituted a search of his computer. People v Worrell, 2016 NY Slip Op 03206, 2nd Dept 4-27-16


FOR CAUSE JUROR CHALLENGE SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED.

The Second Department determined the trial judge's denial of the defense's for cause juror challenge was reversible error:

CPL 270.20(1)(b) provides that a prospective juror may be challenged for cause if the juror “has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial.” Where an issue is raised concerning the ability of a prospective juror to be fair and impartial, the prospective juror must state unequivocally that his or her prior state of mind will not influence his or her verdict, and that he or she will render an impartial verdict based solely on the evidence … . A prospective juror's responses, construed as a whole, must demonstrate an absolute belief that his or her prior opinion will not influence his or her verdict … .

Here, during voir dire, one prospective juror indicated in response to questioning by defense counsel that, because she had a 14-year-old daughter and a 17-year-old daughter, this “could” weigh on her ability to be fair and impartial because “[t]hey are the same age range” as the complainant. When defense counsel followed up by asking, “[w]ould you fear whether or not you could be fair and impartial?,” the prospective juror responded by stating, “I think it would be hard for me to watch a witness, being that I have daughters the same age.”

Once the prospective juror expressed doubt regarding her ability to be impartial, it was incumbent upon the court to ascertain that she would render an impartial verdict based on the evidence … . This was not done. People v Valdez, 2016 NY Slip Op 03203, 2nd Dept 4-27-16


FAILURE TO INFORM JURY OF EFFECT OF ACQUITTAL ON THE TOP COUNT BASED ON THE JUSTIFCATION DEFENSE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The First Department reversed defendant's conviction in the interest of justice because the trial judge did not make clear that acquittal of the top count (second degree murder) based on the justification defense required acquittal of the lesser homicide charges:

… [R]eversal in the interest of justice is warranted by the court's failure to convey to the jury, either directly or indirectly, in any part of its charge, that an acquittal on the top count of murder in the second degree based on a finding of justification would preclude consideration of the two lesser homicide charges. While the jury may have acquitted on the top charge without relying on defendant's justification defense, it is nevertheless “impossible to discern whether acquittal of the top count . . . was based on the jurors' finding of justification so as to mandate acquittal on the two lesser counts”… . People v Rowley, 2016 NY Slip Op 03084, 1st Dept 4-21-16


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IF THE SORA COURT’S RELIANCE ON THE VICTIM’S GRAND JURY TESTIMONY, WHICH WAS NOT DISCLOSED TO THE DEFENDANT, WAS ERROR, UNDER THE FACTS, IT WAS HARMLESS ERROR.

The Second Department, over an extensive dissent, determined the SORA court's reliance on the victim's grand jury testimony, which was not provided to defense counsel, did not deprive defendant of due process of law. 20 points were assessed based upon the victim's helplessness. At the grand jury, the victim testified she was asleep (i.e., helpless) when the abuse began. Because evidence disclosed to the defendant amply notified defendant of the victim's claim to have been asleep, any error in relying on the undisclosed grand jury minutes was harmless:

The Court of Appeals was recently presented with the issue of whether a defendant's due process rights were violated when the hearing court relied, in part, upon grand jury minutes that were not disclosed to the defense in reaching the defendant's SORA risk level determination (see People v Baxin, 26 NY3d 6). The Court found that “[g]iven that [the] defendant is entitled to broad discovery of the evidence that is used against him in order to be able to defend himself . . . the failure to disclose the grand jury minutes was a due process violation” … . Significantly, the Court concluded that, given the overwhelming evidence which was disclosed to the defendant in support of the same risk factor, the error was harmless … . It further recognized that “[t]his is not to say that grand jury minutes must be disclosed to the defendant in every SORA proceeding as a matter of course. It remains within the hearing court's discretion to limit the release of such minutes” … .

Guided by these principles, even assuming that the defendant should have had disclosure of the subject grand jury minutes, as in Baxin, any error in failing to disclose them was harmless. There was overwhelming, unchallenged evidence, which provided the requisite clear and convincing evidence supporting the assessment of 20 points … . The record on appeal reveals that the defendant was amply notified through statements contained in the case summary, the presentence report, and other disclosed evidence of the victim's version of the facts and, specifically, her account that she was asleep when the abuse began. Indeed, defense counsel specifically challenged the assessment of points for physical helplessness based upon the victim's account of being asleep when the sexual abuse began. The portion of the victim's grand jury testimony relied upon by the SORA Court, namely, that the victim was asleep at the beginning of the incident, is the exact account contained in the case summary, which was fully disclosed to the defendant. Under these circumstances, the victim's grand jury testimony was cumulative to the disclosed evidence … . People v Wells, 2016 NY Slip Op 02978, 2nd Dept 4-20-16


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PEOPLE DID NOT MEET THEIR BURDEN OF DEMONSTRATING A LACK OF UNDUE SUGGESTIVENESS IN THE PHOTO ARRAY AND LINE UP IDENTIFICATION PROCEDURES.

The Second Department, over a substantial dissent, determined defendant's motion to suppress photo array and line up identification evidence should have been granted. The People did not meet their burden to demonstrate the lack of undue suggestiveness. The photo arrays were not preserved and certain detectives who participated in the photo array and line up identification were not called as witnesses at the Wade hearing:

At the suppression hearing, [detective] McDermott testified that he did not preserve the photo arrays viewed by [witness] Seeram because the computer that displayed those arrays was not attached to a printer. He stated that after Seeram identified the defendant from a photo array, McDermott used another computer to print out a single photograph of the defendant using the defendant's NYSID number, and then showed that photogaph to Seeram. It cannot be said that this testimony was sufficient to dispel any inference of suggestiveness. McDermott did not explain why he did not attach a printer to the computer Seeram was using, or why he did not attempt to reconstruct the photo array (see id.). Moreover, the single photograph was not signed by Seeram, and was dated January 9, 2006, the day following Seerem's photographic identification procedure.

Further, the People failed to produce the detective who conducted [witness] Clyne's photographic identification procedure, or the detective who conducted Seeram's lineup identification procedure. Contrary to our dissenting colleague's determination, McDermott did not conduct either of those procedures, and, therefore, could not provide competent evidence as to the circumstances thereof and what, if anything, transpired during those identification procedures… . People v McDonald, 2016 NY Slip Op 03017, 2nd Dept 4-20-16


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ADMISSION OF PREJUDICIAL EVIDENCE UNRELATED TO THE CHARGED OFFENSES WAS REVERSIBLE ERROR.

The First Department, in a full-fledged opinion by Justice Richter, determined photographs depicting defendants making gang signs and holding a weapon, as well as Facebook messages sent by a defendant boasting about firing weapons should not have been admitted in this weapons possession trial. Neither the pictures nor the messages related to the weapon defendants' were alleged to have possessed, which was found on the backseat of a car. The prejudicial effect of the evidence outweighed its probative value:

There was no evidence that the gun in the photographs had anything to do with the gun found in the car or with any other criminal activity. … The mere fact that defendants were in possession of a different gun in the past is not probative of whether they knowingly possessed the weapon they were charged with possessing. Nor are the photographs probative of defendants' intent to unlawfully use the weapon found in the car. They merely show defendants displaying a gun, and do not depict any unlawful use of the weapon. * * *

The People concede that [defendant] was not referring to the charged crime in [the Facebook] messages, but to an entirely different incident that occurred months later. Thus, these messages are far too attenuated to have any probative value as to [defendant's] knowledge of the gun found in the car or his intent to use that weapon on the day of the incident … . People v Singleton, 2016 NY Slip Op 02945, 1st Dept 4-19-16


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