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EVIDENCE OF PRIOR UNCHARGED BAD ACTS SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS HOWEVER.

The Third Department determined evidence of uncharged sexual contact with young girls should not have been admitted in evidence in this rape/sexual-abuse/endangering-the-welfare-of-a-child trial. The error was deemed harmless, however. The limited probative value of the proof was outweighed by its prejudicial effect:

Here, the People moved before trial for permission to offer, among other things, the testimony of four adult female witnesses that defendant had sexual contact with them during the 1970s when he was employed as their music teacher and they were between 12 and 14 years old. * * * The court found that the testimony was not relevant to the charges of rape in the second degree or sexual abuse in the second degree, as defendant's intent to commit these crimes could be inferred from commission of the acts themselves, but that it was relevant to the mens rea element of the charge of endangering the welfare of a child. * * *

… [T]he probative value of the testimony for the limited purpose of showing defendant's mental state in doing kindnesses for the victim was highly limited. The alleged prior bad acts were extremely remote in time, taking place decades previously. Further, there were significant factual differences between the actions that defendant allegedly took to gain the trust of his earlier alleged victims and those he used with the victim. By contrast, the prejudicial impact of the testimony — consisting of descriptions of multiple reprehensible acts allegedly committed by defendant against vulnerable children — was significant. People v Scaringe, 2016 NY Slip Op 01871, 3rd Dept 3-16-16

CRIMINAL LAW (EVIDENCE OF PRIOR UNCHARGED BAD ACTS SHOULD NOT HAVE BEEN ADMITTED)/EVIDENCE (CRIMINAL LAW, MOLINEUX, EVIDENCE OF PRIOR UNCHARGED BAD ACTS SHOULD NOT HAVE BEEN ADMITTED)

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ANTISOCIAL PERSONALITY DISORDER WITH PSYCHOPATHY SUFFICIENT TO DEMONSTRATE PROBABLE CAUSE, SEX OFFENDER CIVIL MANAGEMENT PETITION SHOULD NOT HAVE BEEN DISMISSED.

The First Department, reversing Supreme Court, determined the state's petition for sex offender civil management should not have been dismissed after the article 10 probable cause hearing. Expert evidence was presented which alleged respondent suffered from antisocial personality disorder (ASPD) with psychopathy. That was sufficient to demonstrate probable cause:

“[I]n article 10 proceedings, issues concerning the viability and reliability of the respondent's diagnosis are properly reserved for resolution by the jury” … . Here, the State expert opined that respondent suffers from a mental abnormality within the meaning of the MHL based on a diagnosis of antisocial personality disorder (ASPD) with psychopathy. Although the factfinder at trial may or may not accept the expert's opinion, the expert's testimony at the hearing was not so deficient as to warrant dismissal of the petition at this early juncture, especially since the expert offered extensive testimony regarding the distinctions between ASPD and psychopathy, and since the Court of Appeals in Donald DD. did not state that a diagnosis of ASPD with psychopathy is insufficient to support a finding of mental abnormality … . Matter of State of New York v Jerome A., 2016 NY Slip Op 01788, 1st Dept 3-15-16

MENTAL HYGIENE LAW (ANTISOCIAL PERSONALITY DISORDER WITH PSYCHOPATHY SUFFICIENT TO DEMONSTRATE PROBABLE CAUSE FOR SEX OFFENDER CIVIL COMMITMENT)/SEX OFFENDERS (ANTISOCIAL PERSONALITY DISORDER WITH PSYCHOPATHY SUFFICIENT TO DEMONSTRATE PROBABLE CAUSE FOR SEX OFFENDER CIVIL COMMITMENT)

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UNDER THE FACTS, PRE-TRIAL REQUEST TO PROCEED PRO SE PROPERLY DENIED.

The First Department determined defendant's pre-trial request to represent himself was properly denied because the request raised a significant potential for obstruction and diversion. The request was made after the People rested in a suppression hearing:

… [T]he court properly denied defendant's request to represent himself. Although a request to proceed pro se at trial is generally deemed timely if asserted before trial (see People v McIntyre, 36 NY2d 10, 17 [1974]), defendant here waited until after the People had rested in the suppression hearing before requesting to proceed pro se within that hearing, raising a significant “potential for obstruction and diversion” (id.). Accordingly, the court properly denied defendant's request in the absence of “compelling circumstances” (id.). We note that, over the course of the proceedings, defendant was represented by a total of seven retained or assigned attorneys, and repeatedly changed his mind about whether to represent himself. People v Franklin, 2016 NY Slip Op 01781, 1st Dept 3-15-16

CRIMINAL LAW (PRE-TRIAL REQUEST TO PROCEED PRO SE PROPERLY DENIED)/PRO SE (CRIMINAL LAW, PRE-TRIAL REQUEST TO PROCEED PRO SE PROPERLY DENIED)

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RIGHT TO CONFRONT WITNESSES VIOLATED BY INTRODUCTION OF GRAND JURY TESTIMONY AS PAST RECOLLECTION RECORDED; ERROR WAS HARMLESS HOWEVER.

Although the error was deemed harmless, the First Department determined defendant’s right to confront the witness against him was violated. The witness’s grand jury testimony was read to the jury as past recollection recorded. However, because the witness asserted his fifth amendment right to avoid self-incrimination, the truth of the grand jury testimony could not be tested by cross-examination. The First Department explained the relevant law:

Provided that a proper foundation is laid, grand jury testimony may be admitted as past recollection recorded, and its admission does not violate the Confrontation Clause where the witness testifies at trial and is subject to cross-examination …, because “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements” … . However, this may not apply when a witness appears at trial but invokes the Fifth Amendment … . Not every instance in which a witness invokes the privilege against self-incrimination will give rise to a Confrontation Clause violation; rather, “the Sixth Amendment is violated only when assertion of the privilege undermines the defendant’s opportunity to test the truth of the witness’ direct testimony” … .

Here, the witness asserted his Fifth Amendment rights and refused to answer questions that had a direct bearing on testing the truth of his grand jury testimony. Thus, the witness’s extensive assertion of his Fifth Amendment rights regarding the material facts “undermine[d] the process to such a degree that meaningful cross-examination within the intent of the [Confrontation Clause] no longer exist[ed]” … .  People v Rahman, 2016 NY Slip Op 01750, 1st Dept 3-10-16

CRIMINAL LAW (RIGHT TO CONFRONT WITNESSES VIOLATED BY INTRODUCTION OF GRAND JURY TESTIMONY AS PAST RECOLLECTION RECORDED, WITNESS ASSERTED FIFTH AMENDMENT RIGHT TO AVOID SELF-INCRIMINATION)/EVIDENCE (CRIMINAL LAW, RIGHT TO CONFRONT WITNESSES VIOLATED BY INTRODUCTION OF GRAND JURY TESTIMONY AS PAST RECOLLECTION RECORDED, WITNESS ASSERTED FIFTH AMENDMENT RIGHT TO AVOID SELF-INCRIMINATION)

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SIGNED WRITTEN WAIVER OF APPEAL DID NOT REMEDY THE INADEQUATE ORAL COLLOQUY.

The First Department determined defendant's waiver of appeal was invalid because the oral colloquy was insufficient. The signed written waiver did not fix the inadequate colloquy:

… [T]he Court never advised defendant of the consequences of the appeal waiver, or spoke to defendant to ensure he understood the rights he was forfeiting by signing the waiver … . Although defendant signed a written waiver, this “was no substitute for an on-the-record explanation of the nature of the right to appeal” … . Furthermore, the written waiver says that defendant was “advised by the Court of the nature of the rights being waived,” but that never occurred. Rather, the court told defense counsel to explain the waiver of appeal to defendant, and following an off-the-record conference between defendant and his counsel, counsel indicated defendant had signed the waiver. Counsel's confirmation that he told defendant about the waiver cannot substitute for the court conducting its own inquiry. People v Harris, 2016 NY Slip Op 01741, 1st Dept 3-10-16

CRIMINAL LAW (WAIVER OF APPEAL, WRITTEN WAIVER DID NOT REMEDY INADEQUATE ORAL COLLOQUY)/APPEALS (CRIMINAL, SIGNED WRITTEN WAIVER DID NOT REMEDY INADEQUATE ORAL COLLOQUY)/WAIVER OF APPEAL (CRIMINAL, SIGNED WRITTEN WAIVER DID NOT REMEDY INADEQUATE ORAL COLLOQUY)

ATTEMPTED CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE IS NOT A LESSER-INCLUDED OFFENSE OF CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE; SUPERIOR COURT INFORMATION JURISDICTIONALLY DEFECTIVE.

The Second Department reversed defendant’s conviction (by guilty plea) because the Superior Court Information (SCI) to which defendant pled did not allege a lesser-included offense of an offense charged in the original felony complaint. Attempted criminal possession of a controlled substance in the fourth degree is not a lesser-included offense of criminal possession of a controlled substance in the fourth degree:

The single count in the SCI was not an “offense for which the defendant [had been] held for action of a grand jury” (CPL 195.20), in that it was not an offense charged in the felony complaint or a lesser-included offense of an offense charged in the felony complaint … . Attempted criminal possession of a controlled substance in the fourth degree under Penal Law §§ 110.00 and 220.09(1) is not a lesser-included offense of criminal possession of a controlled substance in the fourth degree under Penal Law § 220.09(3), because the former offense contains the element “narcotic drug” (Penal Law § 220.00[7]) that is not an element of the latter offense and, therefore, it is possible to commit the greater offense “without concomitantly committing, by the same conduct,” the lesser offense (CPL 1.20[37]…). Thus, the SCI upon which the defendant’s plea was based did not “include at least one offense that was contained in the felony complaint” or a lesser-included offense of an offense charged in the felony complaint … , and the SCI was jurisdictionally defective … . This defect survives the defendant’s failure to raise this claim in the County Court, his plea of guilty, and his waiver of the right to appeal … . People v Chacko, 2016 NY Slip Op 01689, 2nd Dept 3-9-16

CRIMINAL LAW (ATTEMPTED CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE NOT A LESSER-INCLUDED OF CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE, SUPERIOR COURT INFORMATION JURISDICTIONALLY DEFECTIVE)/SUPERIOR COURT INFORMATION (ATTEMPTED CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE NOT A LESSER-INCLUDED OF CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE, SUPERIOR COURT INFORMATION JURISDICTIONALLY DEFECTIVE)/CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE (ATTEMPTED CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE NOT A LESSER-INCLUDED OF CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE, SUPERIOR COURT INFORMATION JURISDICTIONALLY DEFECTIVE)

CONNECTICUT SEXUAL ASSAULT STATUTE IS BROADER IN ITS REACH THAN NEW YORK COUNTERPARTS AND THEREFORE CANNOT SERVE AS A PREDICATE FELONY IN NEW YORK.

The First Department, reversing Supreme Court, determined defendant should not have been sentenced as a second felony offender based on a Connecticut conviction for sexual assault. The court found the Connecticut statute was broader than its New York counterparts in both the “threat of harm,” and “accomplice liability” elements.  Therefore the violation of the Connecticut statute could not serve as a predicate felony in New York.

The New York statutes prohibit various sexual acts by forcible compulsion, which is defined (among other things) as the use of a threat “which places a person in fear of immediate death or physical injury [to someone] or in fear that [someone] will immediately be kidnapped” (Penal Law § 130.00[8]…). In contrast, CGSA § 53a-70(a)(1) does not contain any requirement that a threat issued to compel sexual intercourse must threaten immediate harm. Accordingly, the Connecticut statute is necessarily broader than its New York counterparts, and may not serve as a predicate offense … .

In addition, since CGSA § 53a-70(a)(1) is a general intent statute … , “the prosecution need not establish that the accused intended the precise harm or precise result which resulted from his acts” … . Accordingly, a conviction under the statute is warranted even if a rape committed by a person other than the defendant is the unintended result of the defendant's use or threatened use of force … . In contrast, New York law requires that in order to establish accessorial liability the People must establish that a defendant, acting with the mental culpability required for the commission of the crime at issue, either solicited, requested, commanded, importuned, or intentionally aided another in committing the crime (Penal Law § 20.00). Accordingly, the Connecticut statute is broader than its New York counterparts in this regard as well. People v Davis, 2016 NY Slip Op 01623, 1st Dept 3-8-16

CRIMINAL LAW (VIOLATION OF CONNECTICUT SEXUAL ASSAULT STATUTE CANNOT SERVE AS PREDICATE FELONY IN NEW YORK)/SENTENCING (VIOLATION OF CONNECTICUT SEXUAL ASSAULT STATUTE CANNOT SERVE AS PREDICATE FELONY IN NEW YORK)/SECOND FELONY OFFENDER STATUS (VIOLATION OF CONNECTICUT SEXUAL ASSAULT STATUTE CANNOT SERVE AS PREDICATE FELONY IN NEW YORK)

PEOPLE DEMONSTRATED, IN A RODRIGUEZ HEARING, THE IDENTIFICATION OF DEFENDANT WAS CONFIRMATORY; WADE HEARING NOT NECESSARY.

The Third Department determined the evidence presented at the Rodriguez hearing demonstrated the confidential informant's (CI's) identification of the defendant was confirmatory (i.e., based upon prior acquaintance with the defendant) and, therefore, a Wade hearing to determine the validity of the identification was not necessary. The court also noted that a two-hour discrepancy between when the drug sale took place as alleged in the indictment, and the testimony about the time of the sale at trial, did not deprive the defendant of the ability to defend against the allegations. With respect to the sufficiency of the identification of the defendant, the court wrote:

 

… “[A] Wade hearing is not required when the witness is so familiar with the defendant that there is little or no risk that police suggestion could lead to a misidentification” … . Where, as here, the People assert that the pretrial identification was merely confirmatory, the People bear the burden of “prov[ing] the witness's sufficient familiarity with the defendant at a Rodriguez hearing” … . “Although the People are not obligated to call the identifying witness at [the] Rodriguez hearing” … , they nonetheless must come forward with “sufficient details of the extent and degree of the protagonists' prior relationship” with one another … . Relevant factors to be considered in this regard include “the number of times the witness saw the defendant prior to the crime, the duration and nature of those encounters, time periods and setting of the viewings, time between the last viewing and the crime, and whether the two individuals had any conversations” … . People v Smith, 2016 NY Slip Op 01521, 3rd Dept 3-3-16

CRIMINAL LAW (IDENTIFICATION WAS CONFIRMATORY, WADE HEARING NOT NECESSARY)/CRIMINAL LAW (TWO-HOUR DISCREPANCY RE: TIME OF DRUG SALE DID NOT DEPRIVE DEFENDANT OF ABILITY TO DEFEND)/IDENTIFICATION (IDENTIFICATION WAS CONFIRMATORY, WADE HEARING NOT NECESSARY)/RODRIGUEZ HEARING (IDENTIFICATION WAS CONFIRMATORY, WADE HEARING NOT NECESSARY)/WADE HEARING (IDENTIFICATION WAS CONFIRMATORY, WADE HEARING NOT NECESSARY)

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APPEAL WAIVER INVALID, FLAWED ON-THE-RECORD EXPLANATION OF WAIVED RIGHTS NOT REMEDIED BY SIGNED WRITTEN WAIVER.

The First Department, over a dissent, determined defendant’s waiver of appeal was invalid because the trial judge did not make it clear the appeal-rights were distinct from those waived by the guilty plea. The written waiver signed by the defendant was not sufficient to remedy the flawed colloquy:

 

Here, the court never adequately explained the nature of the waiver, the rights the defendant would be waiving, or that the right to appeal was separate and distinct from the rights automatically forfeited upon a plea of guilty. Rather, the court merely stated that “as a part of this” — that is, as part of the guilty plea — defendant was waiving his right to appeal and thus, that the convictions would be final because no appellate court would review them. Despite our dissenting colleague’s suggestion otherwise, the problem with the waiver’s validity is not that there was “some ambiguity in the court’s colloquy.” Rather, by using the phrase “as a part of this,” the trial court expressly undercut the principle that a defendant must understand his waiver of appeal to be distinct from the rights forfeited upon a guilty plea … . …

… [T]the written waiver that defendant signed was no substitute for an on-the-record explanation of the nature of the right to appeal … . This conclusion holds especially true here, where the record does not make clear when defendant signed the waiver. Although the waiver itself states that defendant signed the waiver only “after being advised by the Court,” it is not evident from the record whether defendant signed the waiver before the colloquy regarding his right to appeal, or whether he signed it after. People v Bryant, 2016 NY Slip Op 01427, 1st Dept 3-1-16

 

CRIMINAL LAW (INVALID WAIVER OF APPEAL)/APPEALS (CRIMINAL, WAIVER OF APPEAL INVALID)/WAIVER (APPEAL, WAIVER INVALID DESPITE SIGNED WRITTEN WAIVER)

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THE PEOPLE DID NOT ACT WITH DUE DILIGENCE TO SEEK A DNA TEST, DEFENDANT’S MOTION TO DISMISS BASED ON A SPEEDY TRIAL VIOLATION PROPERLY GRANTED.

The First Department determined Supreme Court properly dismissed the indictment on speedy trial grounds. At issue was the delay associated with obtaining DNA test results. A delay for that purpose can be an “exceptional circumstance” justifying exclusion of the delay from the speedy trial clock, but only if the People act with due diligence. The court determined numerous other delays during the course of the proceedings demonstrated the People did not act with due diligence:

Pursuant to CPL 30.30(4)(g), periods of delay caused by “exceptional circumstances” are excludable from the time charged to the People; the People have the burden of proving the existence of an exceptional circumstance … . CPL 30.30(4)(g)(i) specifically makes excludable a continuance “granted because of the unavailability of evidence material to the People's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period.” Under this provision, the unavailability of DNA test results can be considered an exceptional circumstance, so long as the People exercised due diligence to obtain the results … .

Acknowledging that “[t]here is no precise definition of what constitutes an exceptional circumstance,” the Court of Appeals has made clear that the exception to the rule must conform to the legislative intent of discouraging prosecutorial inaction … . People v Gonzalez, 2016 NY Slip Op 01388, 1st Dept 2-25-16

CRIMINAL LAW (PEOPLE DID NOT ACT WITH DUE DILIGENCE TO SEEK A DNA TEST, SPEEDY TRIAL DISMISSAL PROPER)/SPEEDY TRIAL (PEOPLE DID NOT ACT WITH DUE DILIGENCE TO SEEK A DNA TEST, SPEEDY TRIAL DISMISSAL PROPER)

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