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Questioning by Police and Caseworker Violated Defendant’s Right to Counsel, Failure to Suppress Statements Was Not Harmless Error

The Third Department reversed defendant’s conviction (for murder of mother, stepfather and stepbrother) because defendant’s “yeah probably” response to the question whether he wanted a lawyer was deemed an unequivocal request for a lawyer. A public defender, who represented defendant in a prior case, had sent a letter to the district attorney indicating he was aware of the murders and that he didn’t want defendant questioned in his absence. The police who questioned defendant did not tell defendant about the letter. The court determined that the letter did not cause the right to counsel to attach because it did not state the public defender was representing defendant on the murders. However, given the interrogating officers’ knowledge of the letter, they should have asked defendant directly whether he wanted the public defender’s representation. In addition, a child protective caseworker’s (MacNeil’s) subsequent questioning of the defendant violated his right to counsel because the caseworker was deemed an agent of the police:

… [T]he People contend that defendant’s statement — namely, “Yeah, probably” — did not unequivocally invoke his right to counsel. We disagree. The word “probably” is defined as “very likely” or “almost certainly” (Merriam—Webster Online Dictionary, http://www.MerriamWebster.com/dictionary/probably). It is difficult to conceive of circumstances where “probably” would mean “no,” particularly here, where the police knew that defendant was currently represented, albeit on unrelated charges, and also knew that counsel was so clearly attempting to protect his current client’s constitutional rights. Defendant’s demeanor and tone when saying “Yeah, probably” was his simple expression, in everyday language, that he was not competent or capable to deal with the officers’ questioning. Thus, based on the particular circumstances herein, a reasonable police officer would have understood that defendant’s statement was a request for counsel, requiring questioning without representation to cease .. . * * *

As it cannot be said that there is no reasonable possibility that the admission of defendant’s statements at trial affected the jury’s verdict, County Court committed reversible error in failing to suppress defendant’s statements to the officers… . * * *

MacNeil acknowledged that she works closely with the police in these types of investigations and that, to the best of her recollection, Hamilton [a police officer who had questioned defendant] was present in the room as she was speaking with defendant. Based on the foregoing, we find that MacNeil was acting as an agent of law enforcement and, therefore, her questioning also infringed upon defendant’s right to counsel. Thus, as the product of interrogation by a public servant engaged in law enforcement activity, defendant’s statements to MacNeil were involuntary and should have been suppressed … . People v Slocum, 2015 NY Slip Op 08203, 3rd Dept 11-12-15

 

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Frye Hearing to Determine Acceptance of Paraphilia NOS Diagnosis Required

The Second Department determined defendant sex offender’s request for a Frye hearing in Mental Hygiene Law proceedings for civil commitment should have been granted. Defendant questioned the general acceptance in the psychiatric community of a “paraphilia NOS” diagnosis:

“[E]xpert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has gained general acceptance in its specified field” … . Recently, in Matter of State of New York v Donald DD. (24 NY3d 174), the Court of Appeals noted that paraphilia NOS “is a controversial diagnosis,” and that it had not yet decided “the question that would be decided at a Frye hearing: whether the diagnosis of paraphilia NOS . . . has gained general acceptance in the psychiatric community'” (id. at 186-187). However, the Court of Appeals declined to reach this issue in Matter of Donald DD. because no Frye hearing had been requested or held (id. at 187). Here, however, a Frye hearing was requested and the appellant supported his request with scientific literature. Under these circumstances, a Frye hearing should be conducted to resolve the question of whether the diagnosis of paraphilia NOS has achieved general acceptance in the psychiatric and psychological communities. Matter of State of New York v Richard S., 2015 NY Slip Op 08179, 2nd Dept 11-12-15

 

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Pedophilia Diagnosis, in Combination with Anti-Social Personality Disorder (ASPD), Substance Abuse Disorders, Failed Treatment and History of Sexual Misconduct, Constituted Sufficient Proof Respondent Had Serious Difficulty Controlling His Behavior Warranting Civil Commitment

The First Department, in a full-fledged opinion by Justice Richter, reversed Supreme Court (which had set aside the jury verdict) and determined civil commitment of respondent sex offender was supported by the evidence. The case is another attempt to interpret and implement the criteria for civil commitment laid out by the Court of Appeals in Matter of State of New York v Donald DD. (Kenneth T.), 24 NY 3d 174 (2014). The respondent here was diagnosed with pedophilia, which, combined with anti-social personality disorder (ASPD), substance abuse disorders, respondent’s history of sexual misconduct, and his failure to benefit from treatment programs, was deemed sufficient proof respondent had difficulty controlling his behavior:

In Kenneth T., the State’s expert testified that Kenneth T. suffered from paraphilia not otherwise specified (paraphilia NOS) and ASPD, and that, together, these disorders predisposed him to committing sexual misconduct and resulted in his having serious difficulty controlling that conduct. In concluding that Kenneth T. had the requisite serious difficulty, the expert identified two factors: the fact that Kenneth T. had carried out two rapes under circumstances allowing for identification by his victims, and the fact that he committed the second rape despite having spent significant time in prison for the earlier rape. In finding this evidence legally insufficient, the Court stated that the serious difficulty prong could rarely, if ever, be satisfied from the facts of a sex offense alone … .

Here, in contrast, [the State’s expert] did not solely rely on the facts of respondent’s sex offenses in concluding that he had serious difficulty controlling his urges. Instead, Dr. [the expert] based his opinion on respondent’s triple diagnosis (pedophilia, ASPD and substance abuse disorders), his pattern of sexual misconduct, and his abject failure to satisfactorily progress in treatment. Notably, the underlying sexual disorder in Kenneth T. was paraphilia NOS, not pedophilia. The distinction is critical because, unlike paraphilia, pedophilia can only be diagnosed where the individual has actually acted upon sexual urges towards prepubescent children (or has experienced significant distress at those urges) for more than six months. Thus, pedophilia, by definition, involves an element of difficulty in control. Further, the DSM-5 explicitly recognizes that the dangerous combination of respondent’s ASPD and pedophilia increases the likelihood that he will act out sexually with children (see DSM-5 at 699). In addition, the diagnosis of respondent’s substance abuse disorders, not present in Kenneth T., provides a further basis for the jury’s finding of serious difficulty. * * *

By this decision, we do not hold that all offenders who suffer from pedophilia are automatically, by virtue of that diagnosis alone, subject to mandatory civil management. We simply hold that the State’s evidence in this case — including respondent’s multiple diagnoses, his history of sexual misconduct, his admitted inability to control his pedophilic urges, his lack of satisfactory progress in sex offender treatment and his failure to have a viable relapse prevention plan — was legally sufficient to uphold the jury’s conclusion that respondent has difficulty controlling his sexually offending behavior. Matter of State of New York v Floyd Y., 2015 NY Slip Op 08102, 1st Dept 11-10-15

 

Report of a Robbery Five Minutes Before Justified Street Stop, Flight Justified Pursuit

The First Department, in a full-fledged opinion by Justice Friedman, over a two-justice dissent, determined the police were justified in stopping the defendants for a level-two inquiry, and were further justified in pursuing and detaining them. The majority found that the report of a robbery at a country club five minutes before, together with seeing the defendants on the private country club driveway justified a level two street stop and inquiry. When one of the men fled and the others walked away, the police were justified pursuing and detaining them. The dissenters argued that the police knew only that a robbery in the vicinity of the country club had been reported and that seeing the defendants walking on the driveway in broad daylight justified only a level one inquiry and, therefore, did not justify pursuit:

… [D]efendants were first seen on private property where a burglary had just been reported, in a suburban area, with nobody else visible anywhere in the vicinity. This gave rise to a founded suspicion of criminality, justifying a level-two common-law inquiry under the De Bour analysis.

The police did not exceed the bounds of a common-law inquiry when they requested defendants to stop so that the police could “ask them a question,” because such a direction does not constitute a seizure … . Instead of stopping, defendant Nonni immediately ran, and defendant Parker immediately made what officers described as a “hurried” and “evasive” departure … . Under all the circumstances, the record supports the conclusion that both defendants “actively fled from the police,” rather than exercising their “right to be let alone” … . Defendants’ flight elevated the existing level of suspicion to reasonable suspicion, justifying pursuit and an investigative detention … . Here, “[f]light, combined with other specific circumstances indicating that the suspect[s] . . . [might have been] engaged in criminal activity, . . . provide[d] the predicate necessary to justify pursuit”… . People v Nonni, 2015 NY Slip Op 08081, 1st Dept 11-5-15

 

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Lineup Was Unduly Suggestive, Court Suggested Everyone In the Lineup Should Have Been Given an Eye Patch Because the Complainant Described the Perpetrator as Having a “Deformed Eye”

The First Department reversed defendant’s conviction and ordered a new trial because the lineup in which defendant was identified by the complainant was unduly suggestive. The complainant had described the perpetrator as having a “deformed eye,” and defendant was the only person in the lineup with that feature. The court suggested having everyone in the lineup wear an eye patch:

The complainant described the perpetrator of the alleged robbery as having one distinctive physical feature: a “deformed right eye” which “appeared to be something further into his head.” At the suppression hearing, the detective who prepared a photo array and a postarrest lineup testified that, in each instance, defendant was the only participant who had an “apparently defective eye.” Under the circumstances, we find that the photo array and lineup were unduly suggestive because “only the defendant matche[d] a key aspect of the description of the perpetrator,” namely, a deformed right eye … . While we recognize the practical difficulties in finding fillers with similarly defective eyes, or photographs of such persons, “[a] simple eye patch provided to each of the lineup participants or a hand over an eye would have sufficed to remove any undue suggestiveness of the procedure” …, and similar measures could have been taken with regard to the photos. People v Perry, 2015 NY Slip Op 08046, 1st Dept 11-5-15

 

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Defense Request to Review Psychiatric Records of Prosecution Witness Properly Denied; Evidence of Shooting of Prosecution Witness Properly Admitted to Show Defendant’s Consciousness of Guilt

The Second Department determined Supreme Court properly reviewed in camera the psychiatric records of a prosecution witness and properly denied the defense request to review the records. The Second Department further determined that evidence defendant’s brother (and a member of the same gang defendant belonged to) shot a prosecution witness was properly admitted to show defendant’s consciousness of guilt:

Psychiatric records are confidential, but they may be disclosed upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality … . The proper procedure in such a case is for the court to order production of the records and to inspect them in camera … .

Here, the Supreme Court, after inspecting the records in camera, properly balanced the interests of justice against the witness’s need for confidentiality and providently exercised its discretion in denying the defendant’s application for disclosure of the records and use of the records in cross-examination … . * * *

Contrary to the defendant’s contentions, the Supreme Court did not improvidently exercise its discretion when it permitted the prosecution witness to testify to the circumstances leading up to and culminating in him being shot by two persons directly connected to the defendant. “Certain post crime conduct is [viewed as] indicative of consciousness of guilt, and hence of guilt itself'” … . Consciousness of guilt evidence includes evidence of coercion and harassment of witnesses … and “[e]vidence that a third party threatened a witness with respect to testifying at a criminal trial is admissible where there is at least circumstantial evidence linking the defendant to the threat” … .

Here, there was sufficient circumstantial evidence linking the defendant to the plot to shoot the witness … and the evidence of the defendant’s gang membership was relevant to establish the relationship between the actors … . Under the circumstances, the probative value of the evidence as to the defendant’s consciousness of guilt outweighed the prejudice … . People v Viera, 2015 NY Slip Op 07998, 2nd Dept 11-4-15

 

Police Did Not Have Sufficient Information to Justify Pursuit of Defendant; Street Stop (DeBour) Criteria Clearly Explained

The Second Department determined defendant’s motion to suppress the weapon he discarded during a police pursuit should have been granted. The police approached defendant after seeing him make several adjustments to his waistband. When defendant ran, the police pursued him. Because the police, based on their observations, could make only a level one inquiry (which the defendant had a right to ignore), the pursuit was not justified. The court offered a clear explanation of the criteria for street stops (DeBour criteria):

“On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance” … , the Court of Appeals established a graduated four-level test for evaluating the propriety of police encounters when a police officer is acting in a law enforcement capacity … . The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality … . The second level, known as the common-law right of inquiry, requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion … . The third level permits a police officer to forcibly stop and detain an individual. Such a detention, however, is not permitted unless there is a reasonable suspicion that an individual is committing, has committed, or is about to commit a crime … . The fourth level authorizes an arrest based on probable cause to believe that a person has committed a crime … .

In order to justify police pursuit, the officers must have “reasonable suspicion that a crime has been, is being, or is about to be committed” … . Reasonable suspicion has been defined as “that quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand” … . A suspect’s “[f]light alone . . . even [his or her flight] in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit” … . However, flight, “combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit” … . People v Clermont, 2015 NY Slip Op 07989, 2nd Dept 11-4-15

 

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Expert Who Evaluated Sex Offender As Part of the Initial Case Review Team Was Properly Allowed to Testify at the Civil Commitment Hearing

The Third Department, in a full-fledged opinion by Justice Garry, determined that the psychologist/psychiatrist (Barnes), who was part of the sex offender’s (respondent’s) case review team which recommended civil commitment, was properly allowed to testify at the Article 10 hearing. The respondent had sought to prevent Barnes from testifying because another psychiatrist (for the state) had been appointed for the hearing. The Third Department held that nothing in the Mental Hygiene Law prevented both experts from testifying for the state, and nothing in the Mental Hygiene Law prevented Barnes from having access to relevant diagnostic information generated after he had completed his evaluation for the case review team:

The degree to which Mental Hygiene Law article 10 authorizes a psychiatric examiner who has evaluated a respondent pursuant to Mental Hygiene Law § 10.05 (e) to continue to participate in subsequent proceedings involving the same respondent appears to be a question of first impression. However, nothing in the statute affirmatively precludes such continued participation, and the Court of Appeals has held that relevant evidence may be admissible in article 10 proceedings when “no statute prohibits its use” (Matter of State of New York v John P., 20 NY3d 941, 943 [2012]). As for whether a psychiatric examiner may supplement his or her evaluation report by investigating records of the respondent’s progress following completion of the report, and then rely on such updated information in testifying on the question of confinement, as Barnes did here, Mental Hygiene Law § 10.05 (e) provides the case management team and assigned psychiatric examiner with extensive access to relevant records as part of the initial evaluation. To limit the psychiatric examiner’s subsequent access to relevant information would be inconsistent with the statutory provisions that permit the parties to offer additional evidence on the question of a respondent’s dangerousness at the dispositional hearing and further direct that, “[i]n making a finding of disposition, the court shall consider . . . all available information about the prospects for the respondent’s possible re-entry into the community” (Mental Hygiene Law § 10.07 [f] [emphasis added]).

Contrary to respondent’s argument, petitioner was not required to demonstrate that Barnes’ testimony was “necessary.” Instead, in the absence of any rule prohibiting such evidence, the test for admissibility is whether the testimony is material and relevant to the issues posed … . Here, Barnes possessed knowledge of respondent’s pathology that was clearly material and relevant on the issue of whether he required confinement. * * *

Likewise, we find no abuse of discretion in the denial of respondent’s motion for the appointment of a second expert. Matter of State of New York v James K., 2015 NY Slip Op 07874, 3rd Dept 10-29-15

 

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Anti-Social Personality Disorder (ASPD) Alone Will Not Support Civil Commitment of Sex Offender

The Second Department noted that the diagnosis that a sex offender suffers from anti-social personality disorder (ASPD) is insufficient to justify civil commitment:

A diagnosis of anti-social personality disorder (hereinafter ASPD) “has so little relevance to the controlling legal criteria of Mental Hygiene Law § 10.03(i) that it cannot be relied upon to show mental abnormality for [Mental Hygiene Law] article 10 purposes” … . Since ASPD was the sole diagnosis underlying the jury’s finding that the appellant suffers from a mental abnormality as defined in Mental Hygiene Law § 10.03(i), the finding was not supported by legally sufficient evidence, and the petition must be dismissed … .  Matter of State of New York v Odell A., 2015 NY Slip Op 07851, 2nd Dept 10-28-15

 

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Failure to Turn Over Impeachment Evidence Re: a Central Prosecution Witness Required Vacation of the Conviction

The Second Department determined County Court properly vacated defendant’s conviction.  The case against the defendant relied entirely on a statement taken by Detective Tavares.  The prosecution did not turn over to the defense evidence alleging Detective Tavares had procured a false confession (leading to a federal lawsuit):

The People have an obligation to disclose exculpatory evidence in their possession that is favorable to the defendant and material to his or her guilt or innocence … . “The prosecutor’s duty to exchange Brady material extends to the disclosure of evidence that can be used to impeach the credibility of a witness for the People whose testimony may be determinative of the defendant’s guilt” … . In order to establish a Brady violation, a defendant must prove: (1) the evidence at issue is favorable to him or her, (2) the evidence was suppressed by the prosecution, either willfully or inadvertently, and (3) prejudice arose because the suppressed evidence was material … .

Here, the crucial evidence against the defendant at trial was his statement admitting to the shooting, taken by Detective Ronald Tavares. There was no physical evidence connecting the defendant to the crime, and the eyewitnesses could not identify him. Given the importance of Detective Tavares’ testimony in establishing the defendant’s guilt, the Supreme Court properly determined that evidence concerning allegations that he had procured a false confession in an unrelated matter involving two police officers, which led to an internal affairs investigation of those officers and a federal lawsuit against, among others, Detective Tavares, was favorable to the defense and material … . The evidence was responsive to a defense demand and there is a reasonable possibility that the outcome of the trial would have differed had the evidence been produced … . Furthermore, the defendant sufficiently established that the prosecutor had actual knowledge of the allegations against Detective Tavares and the related investigation in the unrelated matter … . People v Hubbard, 2015 NY Slip Op 07858, 2nd Dept 10-28-15

 

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