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JUSTIFICATION DEFENSE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, CONVICTION REVERSED.

The Second Department determined the defense request for a jury instruction on the justification defense should have been granted. There was evidence of a struggle for a knife and defendant feared for his life:

A person is justified in using deadly physical force against another if he or she reasonably believes such to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force by such other person … . “A trial court must charge the jury with respect to the defense of justification whenever, viewing the record in the light most favorable to the defendant, there is any reasonable view of the evidence which would permit the jury to conclude that the defendant’s conduct was justified” … . A failure to give a justification charge under such circumstances constitutes reversible error … .

Here, the defendant requested a justification charge to the jury based, inter alia, upon his trial testimony that during his altercation with the decedent, there was a struggle for the Swiss Army-style knife attached to his key chain that he then used to inflict the fatal wounds. The defendant also testified that he feared for his life during the altercation. Under these circumstances, considering the record in the light most favorable to the defendant, the Supreme Court erred in failing to provide the jury with the requested justification charge … . People v Austin, 2015 NY Slip Op 09112, 2nd Dept 12-9-15

CRIMINAL LAW (FAILURE TO GIVE JUSTIFICATION DEFENSE JURY INSTRUCTION REQUIRED REVERSAL)/JUSTIFICATION DEFENSE (FAILURE TO CHARGE JURY REQUIRED REVERSAL)/JURY INSTRUCTIONS (FAILURE TO GIVE JUSTIFICATION DEFENSE JURY INSTRUCTION REQUIRED REVERSAL)

INSUFFICIENT EVIDENCE DEFENDANT COMMITTED BURGLARY; DEFENDANT, THROUGH AN UNLOCKED DOOR, ENTERED A VESTIBULE THAT WAS NOT RESTRICTED TO USE BY TENANTS.

The Second Department reversed defendant’s burglary conviction because of insufficient evidence defendant entered the victim’s dwelling. Defendant entered a vestibule through an unlocked door and there was no indication the area was restricted to use by tenants only:

To be guilty of burglary in the first degree, a person must, among other things, knowingly enter or remain unlawfully in a dwelling (see Penal Law § 140.30). Here, while the evidence at trial showed that the defendant entered the vestibule of the victim’s apartment building through an outer door that did not lock, there was no indicia that access to the building or vestibule was restricted to tenants. Thus, the weight of the evidence does not warrant a finding that the defendant knowingly entered the victim’s dwelling … . People v Huggins, 2015 NY Slip Op 09119, 2nd Dept 12-9-15

 

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INADMISSIBLE TESTIMONIAL HEARSAY, PROSECUTORIAL MISCONDUCT, AND JUDGE’S ACTIONS TO COERCE THE JURY TO REACH A VERDICT DEPRIVED DEFENDANT OF A FAIR TRIAL.

The First Department reversed defendant’s conviction, finding several distinct flaws which deprived defendant of a fair trial. Testimonial hearsay which served to bolster the complainant’s identification of the defendant was improperly admitted. The prosecutor improperly referred to stricken testimony in summation. And the judge effectively coerced the jury into reaching a verdict.  With respect to the coerced verdict, the court wrote:

During jury deliberations, the court should have granted defendant’s mistrial motion, made on the ground that any verdict would be reached under coercive circumstances. The court’s statements during jury deliberation were also prejudicial to defendant’s right to a fair trial. The jury returned two notes, on the second and fourth day of deliberations, announcing that the jury was deadlocked; the second note emphatically listed different types of evidence the jury had considered. The court’s Allen charges in response to both notes were mostly appropriate but presented the prospect of protracted deliberations by improperly stating that the jury had only deliberated for a very short time when it had actually deliberated for days … . The court initially informed the jury that its hours on one day would be extended to 7:00 p.m., before reversing that decision and merely extending the hours to 5:00 p.m., and then it extended the hours to 6:00 p.m. on the next day, a Friday. The court improperly described those changes as a “tremendous accommodation” that was “loathed” by the system … .

The court further indicated that the jury would likely continue deliberating into the next week although jurors had been told during jury selection that the case would be over by the aforementioned Friday, raising concerns for one juror who was going to start a new job the following Monday and another juror who was solely responsible for his child’s care in the first three days of the next week … . After the court informed the latter juror that he would be required to show up the next week despite the juror’s purportedly fruitless efforts to obtain alternative childcare, and then brought the juror back into the courtroom solely to reiterate that point more firmly, the jury apparently returned its verdict within less than nine minutes, at about 3:29 p.m. on the Friday … . The totality of the circumstances supports an inference that the jury was improperly coerced into returning a compromise verdict. People v DeJesus, 2015 NY Slip Op 08959, 1st Dept 12-8-15

CRIMINAL LAW (TESTIMONIAL HEARSAY IMPROPERLY ADMITTED)/CRIMINAL LAW (PROSECUTORIAL MISCONDUCT, REFERENCE TO STRICKEN TESTIMONY)/CRIMINAL LAW (COERCED VERDICT, MISTRIAL SHOULD HAVE BEEN GRANTED)/EVIDENCE (TESTIMONIAL HEARSAY IMPROPERLY ADMITTED)/HEARSAY (TESTIMONIAL HEARSAY IMPROPERLY ADMITTED)PROSECUTORIAL MISCONDUCT (REFERENCE TO STRICKEN TESTIMONY)/COERCED VERDICT (JURY IMPROPERLY PRESSURED TO REACH VERDICT BY JUDGE)/VERDICT (COERCED, JURY IMPROPERLY PRESSURED TO REACH VERDICT BY JUDGE)/MISTRIAL (JUDGE IMPROPERLY COERCED JURY TO REACH A VERDICT, MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED)

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DEFENSE OPENED THE DOOR TO ALLOW EVIDENCE OF OTHERWISE INADMISSIBLE TESTIMONIAL HEARSAY STATEMENTS MADE TO A POLICE INVESTIGATOR

The Third Department determined testimonial statements made by a co-defendant, Denno, to a police investigator were properly allowed in evidence because the defense “opened the door” by questioning the investigator about one of the statements:

Although testimonial statements by a nontestifying witness are inadmissible as violative of the Confrontation Clause, “a defendant can open the door to the admission of evidence otherwise barred by the Confrontation Clause” … . Denno, a witness to and participant in the crimes, gave three statements to the investigator, and Denno invoked his Fifth Amendment right not to testify at defendant’s trial. Defendant called the investigator as a witness to elicit information about Denno’s second statement, which was favorable to defendant. This opened the door for the People to cross-examine the investigator about the content of the two other Denno statements, which provided context and were less favorable to defendant. People v Taylor, 2015 NY Slip Op 08873, 3rd Dept 12-3-15

CRIMINAL LAW (TESTIMONIAL HEARSAY STATEMENTS PROPERLY ADMITTED, DEFENDANT OPENED THE DOOR)/EVIDENCE (TESTIMONIAL HEARSAY STATEMENTS PROPERLY ADMITTED, DEFENDANT OPENED THE DOOR)/TESTIMONIAL HEARSAY STATEMENTS (PROPERLY ADMITTED, DEFENDANT OPENED THE DOOR)

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MARITAL PRIVILEGE DID NOT APPLY TO DEFENDANT’S STATEMENT THAT HE WAS GOING TO BURN THE HOUSE DOWN.

In an arson case, the Third Department determined County Court properly allowed defendant’s wife to testify defendant said he was going to burn the house down. The court explained the limits of marital privilege:

The privilege that precludes a spouse from disclosing a confidential communication made during marriage by the other spouse (see CPLR 4502 [b]; CPL 60.10) does not protect every remark between spouses during a marriage. Instead, “the privilege attaches only to those statements made in confidence and ‘that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship'” … . The wife testified that her marriage to defendant began to deteriorate during the months before the fire, in part because defendant wanted to relocate to Colorado while the wife wanted to remain in New York and continue living in the marital home with her children. She stated that, as the relationship worsened, defendant told her “many” times that he would burn the house down to prevent her from taking possession of it when they separated.

The privilege “was never designed to forbid inquiry into the personal wrongs committed by one spouse against the other” and, thus, does not apply here, as defendant’s statements were not prompted by trust or confidence in the marital relationship, but, instead, constituted threats of criminal activity directed at the wife … . Further, the privilege does not apply “when the substance of a communication . . . is revealed to third parties” … . Here, the wife testified that several of defendant’s threats were made in the presence of other people, including mutual friends and the couple’s children, and these statements were not privileged … . People v Howard, 2015 NY Slip Op 08870, 3rd Dept 12-3-15

CRIMINAL LAW (MARITAL PRIVILEGE)/EVIDENCE (MARITAL PRIVILEGE, CRIMINAL TRIAL)

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FAILURE TO CLARIFY WHETHER APPEAL WAIVER WAS PART OF THE PLEA AGREEMENT RENDERED THE WAIVER INVALID.

The Third Department determined defendant’s waiver of appeal was invalid because it was not made clear whether the waiver was part of the plea agreement. The court further determined that the sentence for non-violent offenses committed by the 18-year-old defendant was harsh and excessive. With respect to the invalid waiver of appeal, the court wrote:

Defendant was free to waive his right to appeal as an adjunct to the plea agreement, so long as he made a voluntary, knowing and intelligent decision to do so … . It was accordingly incumbent upon County Court to verify, among other things, that defendant understood he was “intentionally relinquish[ing] or abandon[ing] a known right that would otherwise survive a guilty plea” as a component of the plea agreement … . Defendant expressed his willingness to waive his right to appeal during the plea colloquy, but the record is devoid of any indication that an appeal waiver was actually a component of the plea agreement. An appeal waiver was not mentioned when the terms of the plea agreement were recited and, indeed, the People stated that they did not know if defendant was executing an appeal waiver given the absence of any sentencing commitment. Defense counsel then gratuitously offered to have defendant waive his right to appeal in the spirit of “mak[ing] it as easy on everyone as possible.” As a result of these statements, County Court was obliged to determine whether an appeal waiver was required as a “detail[] of the plea bargain” and, if not, whether defendant understood that he did not have to execute one …. . County Court did neither and, given the absence of proof that defendant waived his right to appeal in return for any consideration, we find that waiver to be invalid … . People v Justiniano, 2015 NY Slip Op 08875, 3rd Dept 12-3-15

CRIMINAL LAW (WAIVER OF APPEAL INVALID)/APPEALS (WAIVER OF APPEAL INVALID)/CRIMINAL LAW (SENTENCE HARSH AND EXCESSIVE)/SENTENCING (HARSH AND EXCESSIVE)

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WAIVER OF APPEAL INVALID; DESCRIPTION OF THE EXTENT OF THE WAIVER WAS ERRONEOUS; NO ASSURANCE DEFENDANT WAS AWARE OF THE DIFFERENCE BETWEEN RIGHTS WAIVED BY GUILTY PLEA AND APPELLATE RIGHTS.

The First Department sent the matter back for resentencing because the record suggested the sentencing judge erroneously thought he did not have the power to impose a reduced sentence. The First Department determined the defendant’s waiver of appeal was invalid because the sentencing judge erroneously stated the relevant law and did not make sure the defendant understood the difference between the rights waived by entering a guilty plea and his appellate rights:

Defendant’s waiver of his right to appeal was invalid, where the court failed to adequately ensure defendant’s understanding that the right to appeal is separate and distinct from the rights automatically forfeited by pleading guilty … . The court’s statement that defendant was “waiving [his] right to appeal any legal issues connected with the case, including the sentence” (emphasis added) was incorrect, insofar as a defendant cannot waive certain rights, such as the right to challenge the legality of a sentence or raise a speedy trial claim … . The court’s further statement that the “right of appeal is waived by [defendant], the rights I just mentioned are automatically waived by a plea” was insufficient to explain that the right to appeal is not included with those automatically waived by a guilty plea, since the court had “just mentioned” that right. Moreover, defendant’s execution of a written waiver “does not, standing alone, provide sufficient assurance that the defendant is knowingly, intelligently and voluntarily giving up his or her right to appeal” … . People v Flores, 2015 NY Slip Op 08905, 1st  Dept 12-3-15

CRIMINAL LAW (WAIVER OF APPEAL INVALID)/APPEALS (CRIMINAL LAW, WAIVER INVALID)/WAIVER OF APPEAL INVALID

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DEFENSE COUNSEL’S FAILURE TO OBJECT TO PROSECUTOR’S REFERENCES TO STRICKEN TESTIMONY CONSTITUTED INEFFECTIVE ASSISTANCE REQUIRING REVERSAL.

The Third Department determined defense counsel’s failure to object to the prosecutor’s references to stricken testimony in summation amounted to ineffective assistance of counsel requiring reversal. The defendant was accused of running over his girlfriend with a pickup truck:

Here, during direct examination by the People, the witness testified that he heard defendant yell, “I hope you f***ing die, bitch.” Finding that this testimony went to defendant’s state of mind, County Court overruled counsel’s objection and permitted the statement into evidence. The witness then testified that he assumed defendant was directing such comment toward [the victim]. Upon defendant’s further objection, County Court held that the witness could not speculate as to whom defendant had directed his comment, and the witness’s testimony in that regard was stricken from the record. Despite this evidentiary ruling, during summation, the People twice made improper references to the stricken testimony and twice those references went without objection from defense counsel or curative instructions from the court. Specifically, at one point during closing argument the prosecutor stated, “If this was some sort of an accident, then why would the defendant scream at [the victim], I hope you f***ing die, bitch? Is that consistent with an accident or is that consistent with an intent to injure? If you accidentally just ran over your significant other, is that what you would say to them?” … . People v Ramsey, 2015 NY Slip Op 08874, 3rd Dept 12-3-15

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, FAILURE TO OBJECT TO REFERENCES TO STRICKEN TESTIMONY)/INEFFECTIVE ASSISTANCE (FAILURE TO OBJECT TO REFERENCES TO STRICKEN TESTIMONY)

SEVEN-YEAR DELAY BETWEEN ARREST AND INDICTMENT DID NOT VIOLATE RIGHT TO SPEEDY TRIAL.

The Second Department determined Supreme Court properly found that the seven-year delay between defendant’s arrest and indictment did not violate defendant’s right to a speedy trial. The court explained the relevant law:

A defendant’s right to a speedy trial is guaranteed both by the United States Constitution … . Moreover, an unjustified delay in prosecution will deprive a defendant of the State constitutional right to due process … . However, “a determination made in good faith to delay prosecution for sufficient reasons will not deprive defendant of due process even though there may be some prejudice to defendant” … . Where there has been extended delay, the People have the burden to establish good cause … .

In determining whether a defendant’s constitutional right to a speedy trial has been violated, the Court of Appeals has articulated five factors to be considered: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charges; (4) any extended period of pretrial incarceration; and (5) any impairment of the defendant’s defense … . These factors apply as well to the due process guarantee … . “In this State, we have never drawn a fine distinction between due process and speedy trial standards’ when dealing with delays in prosecution” … . People v Allen, 2015 NY Slip Op 08850, 2nd Dept 12-2-15

CRIMINAL LAW (SPEEDY TRIAL, SEVEN YEARS BETWEEN ARREST AND INDICTMENT)/SPEEDY TRIAL (SEVEN YEARS BETWEEN ARREST AND INDICTMENT)

17-YEAR DELAY ADEQUATELY EXPLAINED, SPEEDY TRIAL RIGHT NOT VIOLATED.

The Third Department determined a 17-year delay between the act a defendant’s indictment did not violate his right to a speedy trial. Several years of the delay were attributed to the ability to test DNA without destroying it (not available at the time of the offense, 1994). In addition, a witness came forward in 2011. The court explained the applicable law:

“In determining whether there is an undue delay, the trial court must consider ‘(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay'” … . Where, as here, the delay is extraordinary, “close scrutiny of the other factors, especially the question of why the delay occurred,” is required … .

The People introduced evidence indicating that DNA technology in 1994 would have required the destruction of the two samples of biological material that had been collected. Further evidence established that technology at the time that the samples were tested — in 2004 and 2011 — did not require such destruction. In addition to this physical evidence becoming probative, a witness came forward in May 2011 implicating defendant in the murder. Such evidence demonstrated a good faith basis for the delay in proceeding with the prosecution … .

Turning to the remaining factors, the charge of murder in the second degree is “inarguably a very serious offense” … . Further, defendant was never incarcerated during the 17-year delay … . In addition, defendant’s generic claim that witnesses may have moved and that their recall of events is no longer as strong as it once was is too speculative to carry significant weight in the analysis … . Although defendant faced a substantial delay, upon considering these factors, we find that his constitutional right to a speedy trial was not violated … . People v Chaplin, 2015 NY Slip Op 08869, 2nd Dept 12-2-15

CRIMINAL LAW (SPEEDY TRIAL, 17-YEAR DELAY)/SPEEDY TRIAL (17-YEAR DELAY)

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