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DEFENSE COUNSEL’S FAILURE TO MOVE TO REOPEN SUPPRESSION HEARING BASED ON NEW EVIDENCE LEARNED AT TRIAL CONSTITUTED INEFFECTIVE ASSISTANCE.

The First Department, over an extensive dissent, determined defense counsel was ineffective for failing to move to reopen the suppression hearing. Defendant was convicted of burglary. A bag of tools was the subject of a suppression motion. At the suppression hearing, the police officer testified the bag was open at defendant’s feet. The suppression court ruled the “burglar’s tools” were properly seized under the “plain view” exception to the warrant requirement. At trial, the building superintendent who stopped the defendant testified the bag was in defendant’s hand and closed when the police arrived. Based on that new information, defense counsel should have requested the reopening of the suppression hearing:

 

Under CPL 710.40(4), a suppression hearing may be reopened upon a showing that the defendant has discovered “additional pertinent facts” that “could not have [been] discovered with reasonable diligence before the determination of the motion.” Here, the additional facts were “pertinent” because the superintendent’s testimony, if credited, would have undermined the ruling that the tools were admissible because they were in plain view. This was not a minor or routine inconsistency; the superintendent’s version was completely at odds with a plain view theory. Any issue of whose recollection was most reliable should have been presented to the hearing court. People v Kindell, 2016 NY Slip Op 00027, 1st Dept 1-7-16

 

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, FAILURE TO REOPEN SUPPRESSION HEARING BASED ON NEW EVIDENCE)/EVIDENCE (INEFFECTIVE ASSISTANCE, FAILURE TO REOPEN SUPPRESSION HEARING BASED ON NEW EVIDENCE)/ATTORNEYS (INEFFECTIVE ASSISTANCE, FAILURE TO REOPEN SUPPRESSION HEARING BASED ON NEW EVIDENCE)/INEFFECTIVE ASSISTANCE (FAILURE TO REOPEN SUPPRESSION HEARING BASIED ON NEW EVIDENCE)/SUPPRESSION (INEFFECTIVE ASSISTANCE, FAILURE TO REOPEN SUPPRESSION HEARING BASED ON NEW EVIDENCE)

COUNTY COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT’S APPLICATION FOR JUDICIAL DIVERSION TO A DRUG TREATMENT PROGRAM.

The Third Department, reversing County Court, determined defendant was eligible for judicial diversion to a drug treatment program. Defendant was stopped with four pounds of marijuana in his car. He demonstrated he was addicted to marijuana, that drug-dependence was a contributing factor re: his criminal behavior, and this was his first contact with the criminal justice system:

 

It is undisputed that defendant is an eligible defendant as defined in CPL 216.00 (1) and that his incarceration was not necessary to protect the public. Contrary to the determination of County Court, however, we also find that the uncontroverted evidence in the record amply supports the conclusions that defendant has a history of substance abuse and that such substance abuse and dependence were contributing factors to his criminal behavior. Specifically, among other things, defendant described that his progressively escalating marihuana use, which began socially at age 14, advanced to daily use over the ensuing years and culminated in defendant becoming a mule, transporting larger quantities of marihuana across state lines for other individuals in order to receive compensation in the form of marihuana. Defendant attested to resorting to this conduct when supporting his habit became too expensive, despite his gainful employment. We also note the expert testimony of a substance abuse counselor who opined that, based upon his history, defendant was an addict who was cannabis dependent.

Inasmuch as “[t]he statute does not require that a defendant’s . . . substance abuse or dependence be the exclusive or primary cause of the defendant’s criminal behavior” … , but instead only requires it be a contributing factor, we find no basis for County Court’s determination that the instant arrest — i.e., defendant’s only involvement with the criminal justice system — was not contributed to by defendant’s marihuana use. People v Cora, 2016 NY Slip Op 00066, 3rd Dept 1-7-15

 

 

 

 

 

 

CRIMINAL LAW (APPLICATION FOR JUDICIAL DIVERSION TO A DRUG TREATMENT PROGRAM SHOULD HAVE BEEN GRANTED)/JUDICIAL DIVERSION (APPLICATION FOR DIVERSION TO A DRUG TREATMENT PROGRAM SHOULD HAVE BEEN GRANTED)/DRUG TREATMENT PROGRAM (JUDICIAL DIVERSION APPLICATION SHOULD HAVE BEEN GRANTED)/MARIJUANA (APPLICATION FOR JUDICIAL DIVERSION TO A DRUG TREATMENT PROGRAM SHOULD HAVE BEEN GRANTED)

COCAINE-POSSESSION OFFENSES CHARGED IN THE SUPERIOR COURT INFORMATION (SCI) WERE NOT LESSER INCLUDED OFFENSES OF THE THE COCAINE-POSSESSION OFFENSE CHARGED IN THE FELONY COMLAINTS; SCI IS JURISDICTIONALLY DEFECTIVE.

The Third Department determined the superior court informations (SCI’s) to which defendant pled guilty were jurisdictionally defective because neither SCI charged a lesser included offense of the offense charged in the original felony complaints. If it is possible, under any set of facts, to commit the greater offense but not the lesser, the lesser is not a lesser included offense. The offenses at issue here involved the possession of cocaine:

“A crime is a lesser included offense of a charge of a higher degree only when in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the very same conduct, committing the lesser offense” … . To be guilty of the offense charged in the SCI, a defendant must attempt to “knowingly and unlawfully possess cocaine” that weighs “[500] milligrams or more” (Penal Law §§ 110.00, 220.06 [5]). The first felony complaint charged defendant with criminal possession of a controlled substance in the third degree, which requires proof of knowing, unlawful possession of substances containing narcotic drugs that have “an aggregate weight of one-half ounce or more” (Penal Law § 220.16 [12]). Considered in the abstract, it is possible to possess or attempt to possess one-half ounce of a mixture of cocaine and some other substance in which the proportion of cocaine is less than 500 milligrams. Thus, it is possible to commit criminal possession of a controlled substance in the third degree without also committing attempted criminal possession of a controlled substance in the fifth degree, and the offense charged in the SCI is not a lesser included offense of the crime charged in the first felony complaint.

The second felony complaint charged defendant with criminal possession of a controlled substance in the fifth degree, which is committed when a person “knowingly and unlawfully possesses a controlled substance with intent to sell it” (Penal Law § 220.06 [1]). It is possible to possess cocaine with the intent to sell it while not concurrently possessing cocaine weighing more than 500 milligrams, or attempting to do so, as required to commit the crime charged in the SCI (see Penal Law §§ 110.00, 220.06 [5]). Thus, the crime charged in the SCI is not a lesser included offense of the crime charged in the second felony complaint … . People v Seals, 2016 NY Slip Op 00065, 3rd Dept 1-7-16

CRIMINAL LAW (SUPERIOR COURT INFORMATION JURISDICTIONALLY DEFECTIVE, OFFENSES WERE NOT LESSER INCLUDEDS)/SUPERIOR COURT INFORMATIONS (JURISDICTIONALLY DEFECTIVE, OFFENSES NOT LESSER INCLUDEDS)/COCAINE OFFENSES (SUPERIOR COURT INFORMATION JURISDICTIONALLY DEFECTIVE, OFFENSES NOT LESSER INCLUDEDS)

PEOPLE SHOULD HAVE INSTRUCTED THE GRAND JURY ON THE AGENCY DEFENSE IN THIS CRIMINAL SALE OF MARIJUANA CASE, INDICTMENT PROPERLY DISMISSED.

The Third Department determined County Court properly reinspected the grand jury minutes pursuant to a second motion by defense counsel and properly dismissed the indictment because the People failed to instruct the grand jury on an applicable defense. Because the first motion to inspect argued the evidence before the grand jury was insufficient, the law of the case doctrine did not prohibit the second motion, which argued the proceedings were defective. The defendant was charged with criminal sale of marijuana.  However, the facts supported the theory the defendant was acting as an agent for the buyer:

 

… [W]hile there is no requirement that the grand jury “be charged with every potential defense suggested by the evidence” … , the People “must charge . . . those defenses that the evidence will reasonably support” … . As this Court recently reiterated, “[u]nder the agency doctrine, a person who acts solely as the agent of a buyer in procuring drugs for the buyer is not guilty of selling the drug to the buyer, or of possessing it with intent to sell it to the buyer. Whether the defendant was a seller, or merely a purchaser doing a favor for a friend, is generally a factual question [to be resolved] . . . based upon [considerations of] factors such as the relationship between the buyer and the defendant, who initiated the transaction, whether the defendant had previously engaged in drug transfers and whether he or she profited from the sale” … . * * *

 

…. [T]he evidence before the grand jury reasonably supported the defense of agency; hence, the People’s failure to instruct the grand jury in this regard rendered that proceeding defective — particularly in view of the fact that the People were on notice of this potential defense prior to the commencement thereof. There is no question that it was the buyer who initiated the sale and, given the relationship between defendant and the buyer’s stepbrother, the evidence reasonably suggested that defendant was doing a favor for the stepsister of one of his friends. Additionally, none of the testimony offered before the grand jury revealed that defendant had a prior history of drug sales, and the evidence that defendant profited from the subject transaction was tenuous at best. Under these circumstances, County Court properly granted defendant’s motion to dismiss the indictment under CPL 210.35 (5) … . People v Gallo, 2016 NY Slip Op 00064, 3rd Dept 1-7-16

 

 

 

 

 

 

CRIMINAL LAW (GRAND JURY SHOULD HAVE BEEN INSTRUCTED ON AGENCY DEFENSE)/GRAND JURIES (PEOPLE SHOULD HAVE INSTRUCTED JURY ON AGENCY DEFENSE)/AGENCY DEFENSE (GRAND JURY SHOULD HAVE BEEN INSTRUCTED ON AGENCY DEFENSE)/MARIJUANA, CRIMINAL SALE (GRAND JURY SHOULD HAVE BEEN INSTRUCTED ON AGENCY DEFENSE)

ANONYMOUS 911 CALL COUPLED WITH POLICE OFFICER’S OBSERVATIONS PROVIDED REASONABLE SUSPICION JUSTIFYING DETENTION OF THE DEFENDANT.

The Fourth Department determined an anonymous 911 call combined with the police officer’s observations provided the officer with reasonable suspicion defendant had a weapon, justifying detention of the defendant:

 

Although “a radioed tip may have almost no legal significance when it stands alone, . . . when considered in conjunction with other supportive facts, it may thus collectively, although not independently, support a reasonable suspicion justifying intrusive police action” … . Here … that “additional support can … be provided by factors rapidly developing or observed at the scene” … . The evidence at the hearing established that ” the report of the 911 caller was based on the contemporaneous observation of conduct that was not concealed’ ” … . Upon the officer’s arrival, defendant was positioned at a bladed angle toward the officer with his hand in his waistband or sweatshirt pocket, ” common sanctuar[ies] for weapons’ ” … . …

“A police officer directed to a location by a general radio call cannot reasonably be instructed to close his eyes to reality—neither the officer nor justice should be that blind. The officer was rightfully and dutifully on the scene and could not ignore possible indications of criminality, nor is there any logical reason for him to reject the natural mental connection between newly encountered facts and the substance of the radio message. More importantly, there certainly is no justification for holding that an officer in such a situation cannot take note of a significant occurrence indicating a possible threat to his life, merely because the call which directed him to the scene was in and of itself an insufficient predicate for intrusive action against a particular person” … . In accordance with Court of Appeals’ precedent, we conclude that “it would be unrealistic to require [the responding officer], who had been told that [a] gunm[a]n might be present, to assume the risk that the defendant’s conduct was in fact innocuous or innocent. Such an assumption would be at odds with his reasonably acquired belief that he was in danger and his constitutionally authorized action . . . It would, indeed, be absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his safety” … . People v Williams, 2016 NY Slip Op 00789, 4th Dept 2-5-16

 

CRIMINAL LAW (STATEMENTS AFTER ILLEGAL ARREST NOT SUPPRESSIBLE IF SUFFICIENTLY ATTENUATED)/EVIDENCE (STATEMENTS AFTER ILLEGAL ARREST NOT SUPPRESSIBLE IF SUFFICIENTLY ATTENUATED)/SUPPRESSION (STATEMENTS AFTER ILLEGAL ARREST NOT SUPPRESSIBLE IF SUFFICIENTLY ATTENUATED)

JUDGE FAILED TO MAKE IT CLEAR THAT ACQUITTAL ON THE TOP COUNT (ATTEMPTED MURDER) BASED ON SELF-DEFENSE REQUIRED ACQUITTAL ON ANY LESSER COUNT STEMMING FROM THE SAME CONDUCT; NEW TRIAL ORDERED.

The First Department reversed defendant's conviction and ordered a new trial because the trial judge did not make it clear that if the jury found defendant acted in self-defense (justification defense) with respect to the top count (attempted murder) it could not consider a related lesser count:

The jury acquitted defendant of attempted murder in the second degree and assault in the first degree, but found him guilty of attempted first-degree assault, arising out of the stabbing of his cousin. Justification was a central issue at trial, and, because of the defect in the court's charge, it is impossible to discern whether acquittal of the top count was based on the jury's finding of justification in a manner that would mandate acquittal on the lesser count.

Considered as a whole, the court did not adequately convey the principle that, if the jury found defendant not guilty of the top count of attempted murder in the second degree on the basis of justification, it should not consider any lesser counts to the extent based on the same conduct… . People v Colasuonno, 2016 NY Slip Op 00021, 1st Dept 1-5-16

CRIMINAL LAW (JUDGE FAILED TO MAKE IT CLEAR THAT ACQUITTAL ON TOP COUNT BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON ANY LESSER COUNT STEMMING FROM THE SAME CONDUCT, NEW TRIAL ORDERED)/JURY INSTRUCTIONS (JUDGE FAILED TO MAKE IT CLEAR THAT ACQUITTAL ON TOP COUNT BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON ANY LESSER COUNT STEMMING FROM THE SAME CONDUCT, NEW TRIAL ORDERED)/JUSTIFICATION DEFENSE (JUDGE FAILED TO MAKE IT CLEAR THAT ACQUITTAL ON TOP COUNT BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON ANY LESSER COUNT STEMMING FROM THE SAME CONDUCT, NEW TRIAL ORDERED)

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DEFENDANT’S REQUEST TO PROCEED PRO SE, MADE ON THE EVE OF TRIAL, WAS NOT UNTIMELY AND SHOULD NOT HAVE BEEN SUMMARILY DENIED ON THAT GROUND, NEW TRIAL ORDERED.

The Fourth Department determined defendant’s request to proceed pro se, made prior to the prosecution’s opening statement, was not untimely and should not have been summarily denied on that ground. A new trial was ordered:

… [T]he judgment of conviction should be reversed and a new trial granted because the court erred in summarily denying, as untimely, his request to proceed pro se … . “Although requests [to proceed pro se] on the eve of trial are discouraged, the Court of Appeals has found that a request may be considered timely when it is interposed prior to the prosecution’s opening statement,’ as here”… . People v Smith. 2015 NY Slip Op 09757, 4th Dept 12-31-15

CRIMINAL LAW (REQUEST TO PROCEED PRO SE MADE ON EVE OF TRIAL NOT UNTIMELY, NEW TRIAL ORDERED)/PRO SE (CRIMINAL LAW, REQUEST TO PROCEED PRO SE MADE ON EVE OF TRIAL NOT UNTIMELY, NEW TRIAL ORDERED)

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JUDGE’S RESPONSE TO JURY NOTE ALLOWED JURY TO CONSIDER EVIDENCE OF ACTIONS NOT CHARGED IN THE INDICTMENT, CONVICTION REVERSED AND INDICTMENT DISMISSED.

The Fourth Department determined the trial judge’s response to a jury note allowed the jury to consider evidence of actions not charged in the indictment. Defendant’s conviction for endangering the welfare of a child was therefore reversed and the indictment was dismissed:

As set forth in the indictment and bill of particulars, as well as pursuant to the People’s theory at trial, the endangerment charge was based on the conduct alleged in the preceding six counts of rape in the second degree and incest in the second degree, of which defendant was acquitted. After receiving a jury note during deliberations, the court instructed the jurors that they were not precluded from considering conduct other than the alleged rape and incest when considering the endangerment charge. That instruction allowed the jury to consider conduct not charged in the indictment. ” Because the jury may have convicted defendant of . . . act[s] . . . for which he was not indicted, defendant’s right to have charges preferred by the [g]rand [j]ury rather than the prosecutor at trial was violated’ ” … . Additionally, based on the vague nature of the court’s instruction, “[i]t is impossible to ascertain what alleged act of [endangerment] was found by the jury to have occurred, whether it was one . . . for which he was indicted, or indeed whether different jurors convicted defendant based on different acts” … . People v Utley, 2015 NY Slip Op 09749, 4th Dept 12-31-15

CRIMINAL LAW (JURY ALLOWED TO CONSIDER EVIDENCE OF ACTIONS NOT CHARGED IN INDICTMENT, CONVICTION REVERSED, INDICTMENT DISMISSED)/EVIDENCE (JURY ALLOWED TO CONSIDER EVIDENCE OF ACTIONS NOT CHARGED IN INDICTMENT, CONVICTION REVERSED, INDICTMENT DISMISSED)

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PROSECUTOR ADMONISHED FOR IMPROPER REMARKS IN SUMMATION (CONVICTION NOT REVERSED HOWEVER); INSUFFICIENT EVIDENCE OF PHYSICAL INJURY TO SUPPORT ASSAULT 3RD CONVICTION.

The Fourth Department admonished the prosecutor for improper remarks in summation, but did not reverse the conviction. The court found the evidence of “physical injury” insufficient to support the Assault 3rd conviction and reversed that unpreserved error under a “weight of the evidence” analysis:

Despite this Court’s repeated admonitions to prosecutors not to engage in misconduct during summation, the prosecutor improperly referred to facts not in evidence when he insinuated that the victim regretted that she did not get out of defendant’s vehicle … . The prosecutor also improperly appealed to the jury’s sympathy and bolstered the victim’s credibility, and did so repeatedly, by commenting on how difficult it was for her to recount her ordeal, first to the police, then before the grand jury, and finally in her trial testimony … . In addition, the prosecutor improperly suggested that the jury experiment on themselves to see how quickly bite marks fade … . Nevertheless, “[a]lthough we do not condone the prosecutor’s conduct, it cannot be said here that it caused such substantial prejudice to the defendant that he has been denied due process of law’ ” … . We admonish the prosecutor, however, “and remind him that prosecutors have special responsibilities . . . to safeguard the integrity of criminal proceedings and fairness in the criminal process’ ” … . * * *

We conclude, upon our independent review of the evidence, that the People failed to prove beyond a reasonable doubt that the victim sustained a physical injury … . The indictment alleged that defendant caused physical injury to the victim “by striking her in the face.” Although the victim testified that defendant struck her in the face, and photographs of the victim showed swelling and discoloration of the left side of her face, the victim did not testify that she suffered substantial pain from that injury or that she sought medical attention for it … . People v Gibson, 2015 NY Slip Op 09722, 4th Dept 12-31-15

CRIMINAL LAW (PROSECUTOR ADMONISHED FOR IMPROPER REMARKS IN SUMMATION)/CRIMINAL LAW (ASSAULT 3RD CONVICTION NOT SUPPORTED BY SUFFICIENT EVIDENCE OF PHYSICAL INJURY)/PROSECUTORIAL MISCONDUCT (IMPROPER REMARKS IN SUMMATION)/EVIDENCE (INSUFFICIENT EVIDENCE OF PHYSICAL INJURY RE: ASSAULT 3RD CONVICTION)/ASSAULT 3RD (INSUFFICIENT EVIDENCE OF PHYSICAL INJURY)

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STATEMENT MADE AFTER UNEQUIVOCAL REQUEST FOR COUNSEL SHOULD HAVE BEEN SUPPRESSED, NEW TRIAL ORDERED.

The Fourth Department reversed defendant’s conviction and ordered a new trial after concluding defendant’s statements to police should have been suppressed. After defendant told police she needed to talk to a lawyer, the police questioned her further during a “smoke break:”

After answering questions for approximately an hour and ten minutes, defendant said, “I think I need to talk to an attorney.” In response, the first investigator stated, “Would you like to talk to one? If you think that, that’s fine. That’s up to you.” Defendant replied, “I need to,” before going on to state that she would never have bad feelings toward the boy and genuinely cared about him. The questioning then ceased, and the first investigator allowed defendant to go outside with the second investigator and a female Child Protective Services worker to smoke a cigarette.

While defendant was smoking in the parking garage, the second investigator engaged her in a lengthy conversation. Unbeknownst to defendant, the conversation was being digitally recorded by the second investigator. During the conversation, defendant made numerous admissions, all but confessing that she had engaged in sexual activity with the boy. * * *

… [W]e conclude that, although defendant’s statement “I think I need to talk to an attorney” may not, standing alone, constitute an unequivocal invocation of the right to counsel … , her subsequent statement “I need to”—made in reply to the first investigator stating “Would you like to talk to one? If you think that, that’s fine. That’s up to you”—removed any ambiguity and made clear that defendant was requesting the assistance of counsel … . People v Kennard, 2015 NY Slip Op 09729, 4th Dept 12-31-15

 

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