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The Court’s Failure to Respond to Jury Note Requesting Transcripts of Recorded Phone Calls, Portions of Which Were Translated from Spanish to English, Mandated Reversal

The Court of Appeals reversed the appellate division and held that the court’s failure to respond to the jury’s request for transcripts of recorded phone calls, portions of which were translated from Spanish to English, was reversible error. The request, under the facts, was substantive, not ministerial. Therefore, the court was required to inform counsel of the request and to respond to it:

For reasons stated in People v Silva (24 NY3d 294 [2014] …, the Appellate Division erred in holding that reversal was not required. Contrary to the Appellate Division’s determination, the jury’s request to see the transcripts did not merely require “the ministerial actions of informing the jury that none of the items they requested were in evidence” … . Inasmuch as a significant portion of defendant’s conversations were conducted in Spanish, the jury could not be expected to understand the recordings without the aid of the transcripts … . Moreover, the trial court expressly invited the jurors to ask for the transcripts during deliberations and told them the procedure by which they could see the transcripts, which involved reassembling the jury in the courtroom. Thus, the jury’s requests for the transcripts required a substantive response, and reversal is required because these “substantive jury notes, marked as court exhibits, were neither revealed to the attorneys nor addressed by the court[]” (Silva, 24 NY3d at 300). People v Mendez, 2015 NY Slip Op 07786, CtApp 10-27-15

 

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The Unaccepted Offer of a Key to Defendant’s Apartment Made to the 10-Year-Old Victim Was Sufficient to Support the Attempted Kidnapping Charge/Twenty-Year-Old Child Molestation Conviction Properly Admitted to Show Defendant’s Intent Re: Kidnapping

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a cogent dissenting opinion by Judge Pigott, determined evidence of a prior sex crime against a child was admissible in an attempted kidnapping prosecution, and further determined the evidence of attempted kidnapping was sufficient. Twenty years earlier, the defendant had been convicted of molesting his step-daughter. Apparently there was a pattern of behavior with his step-daughter which included dressing up (costume) and inviting her to go places with him. That pattern was being repeated with the 10-year-old victim in the instant case. Defendant at one point showed up at the victim’s door dressed up in a costume. Defendant repeatedly asked the victim to go with him for ice cream or to a movie. Defendant offered the key to his apartment to the victim (which she refused). It was that offer (of a key) which formed the basis of the attempted kidnapping charge. The defendant’s conviction for molesting his step-daughter was allowed in evidence to show the defendant’s intent re: kidnapping. The People and the defendant presented expert testimony about defendant’s behavior pattern with his step-daughter and the current victim:

In its written decision and order, the trial court held that the evidence presented by the People demonstrated “more than criminal propensity, but . . . an actual link between the two offenses.” The court noted that the victims of the two offenses “so closely resemble[d] each other . . . as to be virtual twins,” and that “[c]ertain distinctive patterns of behavior employed by the Defendant on each occasion match to an extraordinary degree.” Moreover, the court concluded that the expert testimony at the Ventimiglia hearing demonstrated that “[d]efendant was not merely re-offending, but in fact suffered from a fixated fantasy” and had “transferred his fixation and fantasy from victim number one to victim number two and [was] now re-living the previous sexual encounter.” Based on that expert testimony, the court concluded that “the Defendant’s fixation with the first victim is proof of his intent with regard to the second.” The court stated that it was aware of the potential for prejudice, but was “satisfied that, with careful limitations and adequate caution to the jury, some facts from the earlier case can be utilized to show a unique connection between the two offenses” and that expert testimony would help a jury “to understand what factors should be considered, or discounted, in assessing those facts and that connection.” Under the circumstances presented here, we cannot say that the trial court abused its discretion as a matter of law in admitting evidence of defendant’s prior conviction. * * *

With respect to proof of defendant’s intent, as noted, the People were required to prove that defendant intended to prevent the victim’s liberation by secreting or holding her in a place where she was not likely to be found (see Penal Law §§ 135.00 [2] [a]; 135.20). Defendant’s intent may be inferred from his actions and the surrounding circumstances … . This Court has recognized that “circumstantial evidence of intent is often essential to prosecution for an attempted crime because . . . such evidence may be the only way of proving intent in the typical case of criminal attempt” … . People v Denson, 2015 NY Slip Op 07779, CtApp 10-27-15

 

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Failure to Read Jury Notes to Counsel Before Calling in the Jury Was Not a Mode of Proceedings Error—The Error, Therefore, Must Be Preserved by Objection

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a dissenting opinion by Judge Lippman in which Judge Rivera concurred, determined the trial judge’s failure to read jury notes to counsel and seek their input before calling in the jury was not a mode of proceedings error. Therefore, absent objection, the error was not preserved:

CPL 310.30 requires a trial court to provide “notice to both the people and counsel for the defendant” of a substantive jury inquiry. In O’Rama, we held that the statute requires the court’s notice to counsel to be “meaningful,” and we clarified that this “means notice of the actual specific content of the jurors’ request” (O’Rama, 78 NY2d at 277). This is because “counsel cannot participate effectively or adequately protect the defendant’s rights if this specific information is not given” (id.). We further held that, “in most cases,” meaningful notice is best satisfied by adhering to the procedure outlined in United States v Ronder (639 F2d 931, 934 [2d Cir 1981]), which procedure is now commonly known as the O’Rama procedure:

“Under this procedure, jurors’ inquiries must generally be submitted in writing, since . . . written communications are the surest method for affording the court and counsel an adequate opportunity to confer. Further, whenever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel. Such a step would ensure a clear and complete record, thereby facilitating adequate and fair appellate review. After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses. As the court noted in Ronder (supra, at 934), the trial court should ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to the potentially harmful information. Finally, when the jury is returned to the courtroom, the communication should be read in open court so that the individual jurors can correct any inaccuracies in the transcription of the inquiry and, in cases where the communication was sent by an individual juror, the rest of the jury panel can appreciate the purpose of the court’s response and the context in which it is being made” (O’Rama, 78 NY2d at 277-278). * * *

Where, as here, counsel has meaningful notice of a substantive jury note because the court has read the precise content of the note into the record in the presence of counsel, defendant, and the jury, the court’s failure to discuss the note with counsel before recalling the jury is not a mode of proceedings error. Counsel is required to object to the court’s procedure to preserve any such error for appellate review. …  “We have acknowledged that some departures from O’Rama procedures are subject to our rules of preservation, such as where the court reads the entire content of the note verbatim in open court prior to responding to the jury” (Walston, 23 NY3d at 989 [emphasis added] [internal quotation marks omitted]). People v Nealon, 2015 NY Slip Op 07781, CtApp 10-27-15

 

Court’s Unjustifiably Narrow Interpretation of Jury’s Request for Evidence Required Reversal

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, with a concurring memorandum by Judge Rivera, determined the trial judge’s narrow reading of a request for evidence of the benefits two prosecution witnesses received in return for their testimony required reversal. There was essentially no evidence other than the testimony of the two witnesses pointing to defendant as the shooter. A written cooperation agreement with one of the two witnesses outlined some of the benefits accorded him. However, there was also trial testimony in which both witnesses testified about other benefits received in exchange for testimony. The jury requested to “see” the evidence of the benefits. The court read the request narrowly to refer only to the written cooperation agreement and gave the jury the impression only the cooperation agreement was in evidence. The Court of Appeals held that the jury note should have been read as a request for all the evidence of benefits accorded the witnesses and the failure to provide all the requested evidence was reversible error:

CPL 310.30 provides that, “[u]pon such request” for evidence or legal instruction from a deliberating jury, “the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper” (CPL 310.30). Similarly, absent a withdrawal of the jury’s inquiry or similar circumstances, common-law principles of procedural fairness generally require the court to furnish the jury with information requested during its deliberations, and the court has significant discretion in determining the proper scope and nature of the response … . Thus, regardless of whether the issue is framed under CPL 310.30 or common-law rules governing jury deliberations, where, as here, the defendant has preserved for our review a specific objection to the contents of the trial court’s response to a jury note, we must determine whether the trial court acted within the bounds of its discretion in fashioning an answer to the jury’s inquiry … . In determining whether the trial court abused its discretion and committed reversible error, “[t]he factors to be evaluated are the form of the jury’s question, which may have to be clarified before it can be answered, the particular issue of which inquiry is made, the [information] actually given and the presence or absence of prejudice to the defendant” … .

In this case, an evaluation of those factors demonstrates that the trial court abused its discretion by declining to provide the jurors with information that they plainly wanted and incorrectly characterizing the state of the evidence on the subject of their inquiry.  People v Taylor, 2015 NY Slip Op 07782, CtApp 10-27-15

 

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Dismissal of Criminal Case Did Not Collaterally Estop Civil Case Based Upon the Same Forged-Deed Allegation/No Statute of Limitations Applies to Case Based Upon Forged-Deed Allegation

In an action based upon the allegation the signature on a deed was forged, the Third Department determined no statute of limitations applies to forged deeds which are void ab initio and the dismissal of a Spanish criminal case based upon the forged-deed allegation did not collaterally estop the New York civil action:

We agree with plaintiffs that they are not collaterally estopped from maintaining this action. It is well established that “dismissal of a criminal charge . . . does not generally constitute collateral estoppel in relation to a civil action because of the difference in the burden of proof to establish the factual issues” … . Indeed, the Spanish court dismissed the Spanish criminal action “without prejudice,” expressly permitting the matter to “be referred to civil jurisdiction.” Inasmuch as this dismissal of the Spanish criminal action did not conclusively establish whether the signature was forged, and did not preclude plaintiffs from commencing a similar civil action, defendants have failed to satisfy their burden of proving “that this identical issue was necessarily decided in the [prior action] and is conclusive in the [present] action” … .

Nor should plaintiffs’ action have been deemed time-barred by the statute of limitations. While the limitations period for a cause of action sounding in fraud is the greater of six years after the cause of action accrued or two years after it could have been discovered with reasonable diligence (see CPLR 213 [8]), the Court of Appeals has recently held that this period does not apply when the particular species of fraud alleged is the forgery of a deed. The Court found that, unlike other fraud-based causes of action, “a claim against a forged deed is not subject to a statute of limitations defense” because of “the clarity of our law that a forged deed is void ab initio, and that it is a document without legal capacity to have any effect on ownership rights” … . Mazo v Mazo, 2015 NY Slip Op 07721, 3rd Dept 10-22-15

 

Pregnant Woman Not Liable Under the Reckless Manslaughter Statute for Death of Baby Injured in Utero But Subsequently Delivered Alive by Cesarean Section

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over an extensive dissent, determined a pregnant women could not be convicted of reckless manslaughter for the death of her baby following a head-on collision. Defendant was in the wrong lane and struck an on-coming car, killing the two occupants. Defendant consented to a cesarean section because the baby was in distress (due to the accident). The baby was born alive but subsequently died. Defendant was convicted of manslaughter for recklessly causing the baby’s death. The Court of Appeals reversed noting that, had the baby died in utero, the baby would not have met the definition of “person” in the manslaughter statute:

Had the legislature intended to include pregnant women in the class of individuals who may be guilty of manslaughter in the second degree for reckless acts committed while pregnant, resulting in the eventual death of their child, it could clearly have done so. Moreover, had defendant’s fetus died in utero, then, plainly, defendant could not have been prosecuted under the manslaughter statute because the fetus would not have fallen under the definition of a “person” (Penal Law § 125.05 [1]; …). * * *

The imposition of criminal liability upon pregnant women for acts committed against a fetus that is later born and subsequently dies as a result of injuries sustained while in utero should be clearly defined by the legislature, not the courts. It should also not be left to the whim of the prosecutor. Conceivably, one could find it “reckless” for a pregnant woman to disregard her obstetrician’s specific orders concerning bed rest; take prescription and/or illicit drugs; shovel a walkway; engage in a contact sport; carry groceries; or disregard dietary restrictions. Such conduct, if it resulted in premature birth and subsequent death of the child, could result in criminal liability for the mother. At present, such conduct, if it caused a stillbirth, would not result in criminal prosecution of the mother if the fetus died in utero. Any change in the law with regard to such matters would be within the province of the legislature. People v Jorgensen, 2015 NY Slip Op 07699, CtApp 10-22-15

 

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Police Were Justified In Questioning Defendant’s Presence In Lobby of an Apartment Building Enrolled in the “Trespass Affidavit Program (TAP)”

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over an extensive dissenting opinion by Judge Rivera (in which Judge Lippman concurred), determined a police officer had the right to question defendant about his presence in the lobby of an apartment building. After defendant stated he did not live in the building and could not identify a resident who invited him there, he was arrested for trespass and a razor blade was seized from his pocket, The building was enrolled in the “trespass affidavit program (TAP)” which was described as a solicitation of police assistance for dealing with trespassers. The police officers entered the building to conduct a floor by floor search for trespassers:

Our analysis begins with the points “that whether police conduct in any particular case conforms to De Bour is a mixed question of law and fact,” and that, in such circumstances, “our review is limited to whether there is evidence in the record supporting the lower courts’ determinations” … . On the merits, our analysis proceeds under the first of the four levels of De Bour, which sets a low bar for an initial encounter: it “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” … .

Here the record reflects that the encounter occurred in a private space restricted by signage and a lock, and that police assistance in combating trespassing had been sought through enrollment in the TAP. Put simply, the coupling of defendant’s presence in the subject building with the private and protected nature of that location supports the intrusion giving rise to what became the seizure in question. We conclude that there is record support for the determination that the police had an objective credible reason to request information from defendant … .

In so concluding we note that the police patrol at issue here was intended in part to combat trespassing, that is, “knowingly enter[ing] or remain[ing] unlawfully in or upon a premises” (Penal Law § 140.05), that the building at issue was enrolled in the TAP for the purpose of addressing that problem, and that this branch of the TAP is rooted in tenant protection throughout Manhattan. Under these circumstances a police officer could have identified a trespasser only by requesting information. People v Barksdale, 2015 NY Slip Op 07694, CtApp 10-22-15

 

Flawed Procedure Following “Batson” Challenges to the Prosecution’s Exclusion of Two Nonwhite Jurors Required Reversal

The Third Department determined reversal and a new trial were necessary because of flaws in the procedure used following the “Batson” challenge of the prosecution’s peremptory challenges to two nonwhite members of the jury panel.  The judge denied the Batson challenges. The Third Department explained the correct procedure and the flawed procedure actually used:

A Batson challenge implicates a three-step process in which, “[a]t step one, ‘the moving party bears the burden of establishing a prima facie case of discrimination in the exercise of peremptory challenges'” … . “Once a prima facie showing of discrimination is made, the nonmovant must come forward with a race-neutral explanation for each challenged peremptory — step two” … . The explanation at step two is “not required to be ‘persuasive, or even plausible’; as long as the reasons for the challenges are ‘facially neutral,’ even ‘ill-founded’ reasons will suffice” … , and determining whether the step two explanation is adequate is “a question of law” … . If the nonmoving party provides an adequate explanation, “the burden then shifts back, at step three, to the moving party to persuade the court that reasons are merely a pretext for intentional discrimination” … . This step is a factual issue in which the trial court has broad discretion in determining credibility … .

Initially, we note that the Batson application, made before the end of jury selection, was timely … and any issue regarding the sufficiency of defendant’s step one showing is now moot since the People offered step two race neutral reasons for the challenged peremptory challenges … . The reasons offered by the People included, as to juror No. 19, that the father of her children had been prosecuted by the Schenectady County District Attorney’s office for robbery and “presumably” was in prison. Regarding juror No. 127, the People explained in some detail that there were jurors after her that they preferred to use to fill the twelfth and final seat. Although these reasons were facially race-neutral satisfying the People’s step two burden, defendant points out that the People’s statement regarding juror No. 19 had significant factual errors embellishing on her actual comment, and also that the People did not challenge a white juror whose sister had “been in and out of trouble for years, felonies, in trouble with the law.” As such, there were important factual issues implicating credibility that needed to be resolved at step three. However, as conceded by the People in their brief on appeal, County Court ruled on the Batson application at the conclusion of step two.

The improper compressing of a Batson inquiry does not necessarily mandate reversal, as the movant must preserve the issue as to whether a meaningful step three inquiry occurred … . Indeed, whatever procedural problems may exist in a Batson inquiry, the overriding concern is that a properly preserved question regarding the ultimate issue of discrimination is meaningfully addressed … . Here, defendant sufficiently preserved the issue and the ultimate issue was not adequately addressed. After the People offered their race neutral reasons as to the second relevant juror, defendant began to respond and urged that the record was not complete. County Court stated that the record was complete and summarily denied defendant’s Batson challenge. “[T]he court did not appear to give any consideration to pretext, nor was the basis of its ruling reflected in the record”… . People v Grafton, 2015 NY Slip Op 07701, 3rd Dept 10-22-15

 

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Police Did Have Sufficient Suspicion to Justify Telling Defendant to Drop a Bag He Was Holding—Suppression Should Have Been Granted

The First Department determined the police did not have a founded suspicion criminal activity was afoot when they directed defendant to drop a bag he was holding. Therefore defendant’s suppression motion should have been granted:

The police officers’ initial approach and their intrusion upon defendant’s freedom by directing that he drop the bag were unsupported by a founded suspicion that criminality was afoot necessary to the exercise of the common-law right to inquire … . The officers approached defendant based solely on their observation of him carrying a shopping bag or gift bag that seemed rigid. While one officer testified that, based on his experience, he thought it might be a “booster bag” used for shoplifting, he essentially described an ordinary shopping bag. Further, it was conceded that defendant was not free to leave at the time he was ordered to drop the bag and its use as a booster bag became apparent. Defendant’s innocuous behavior in walking in and out of a store with the bag and his ensuing behavior did not justify further interference to obtain explanatory information … . People v Ties, 2015 NY Slip Op 07753, 1st Dept 10-22-15

 

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Hearsay Alone Will Not Support Revocation of Probation/Failure to Pay Restitution Will Not Support Revocation of Probation If Due to an Inability to Pay

In reversing the judgment revoking defendant’s probation, the Third Department noted that hearsay alone cannot be the basis for revocation and failure to pay restitution will only support revocation if defendant has the ability to pay:

It is settled that, “in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay” … . “If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority” … . If, on the other hand, “the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment” … .

Here, there was neither an adequate inquiry into defendant’s ability to pay nor a determination that his failure to pay was willful … . Accordingly, the matter must be remitted for further proceedings to determine whether defendant’s failure to make the required monthly restitution payments was willful and, if so, whether such failure, standing alone, serves as a valid basis for revocation of his probation and the imposition of a sentence of incarceration … . People v Songa, 2015 NY Slip Op 07704, 3rd Dept 10-22-15

 

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