You are here: / Criminal Law
,

Under the Facts, the Prosecutor Was Not Obligated to Present Exculpatory Evidence to the Grand Jury—Defendant Did Not Exercise His Right to Testify Before the Grand Jury

The First Department determined defendant’s motion to set aside the verdict on the ground the prosecutor did not charge the grand jury on the justification defense was properly denied. The indictment alleged the defendant attacked the victim, Valdez, with a machete. At trial, the defendant testified that Valdez attacked him with a baton and he used a knife in self-defense. It was revealed at trial that Valdez did in fact have a baton at the time of incident, that Valdez had not told the police about the baton, and that, months later, he told the prosecutor about the baton before the matter was presented to the grand jury. The defendant chose not to testify before the grand jury. No mention of the baton, or that the defendant made a statement claiming he acted in self-defense, was made in the grand jury proceedings and the grand jury was not instructed on the justification defense. The First Department held that the prosecutor’s failure, in the grand jury proceedings, to present evidence the victim had a baton, or that defendant stated he acted in self-defense, did not amount to misconduct justifying the dismissal of the indictment. The court emphasized the defendant’s failure to exercise his right to testify before the grand jury to present exculpatory evidence, and explained the nature of the prosecutor’s duty to present exculpatory evidence to the grand jury:

It is axiomatic that a prosecutor, in presenting evidence and potential charges to a grand jury, is ” charged with the duty not only to secure indictments but also to see that justice is done'” … . The role of the grand jury is not only to investigate criminal activity to see whether criminal charges are warranted but also to protect individuals from needless and unfounded charges … . For that reason, justification, as an exculpatory defense that if accepted eliminates any grounds for prosecution, should be presented to the grand jury when warranted by the evidence … . However, a prosecutor, in presenting a case to a grand jury, is “not obligated to search for evidence favorable to the defense or to present all evidence in [the People’s] possession that is favorable to the accused . . . In the ordinary case, it is the defendant who, through the exercise of his own right to testify . . . , brings exculpatory evidence to the attention of the Grand Jury” … . Thus, a prosecutor is not obligated to present to the grand jury a defendant’s exculpatory statement made to the police upon arrest … . Where, however, a prosecutor introduces a defendant’s inculpatory statement to the grand jury, he is obligated to introduce an exculpatory statement given during the course of the same interrogation which amplifies the inculpatory statement if it supports a justification defense … . * * *

Assuming arguendo that, as claimed by defendant and denied by the People, the ADA did know about the … baton at the time of the grand jury proceedings, dismissal of the indictment based on the failure to charge the grand jury on justification still would not be warranted. “[A] Grand Jury proceeding is not a mini trial . . . The prosecutor . . . need not disclose certain forms of exculpatory evidence . . . [Nor is] the prosecutor . . . obligated to present the evidence or make statements to the grand jurors in the manner most favorable to the defense” … . As previously noted, a prosecutor is “not obligated to search for evidence favorable to the defense or to present all evidence in [the People’s] possession that is favorable to the accused . . . In the ordinary case, it is the defendant who, through the exercise of his own right to testify . . . , brings exculpatory evidence to the attention of the Grand Jury”… . People v Morel, 2015 NY Slip Op 06865, 1st Dept 9-22-15

 

Several Similar Thefts from the Same Store Constituted a Single, Continuing Crime

The Second Department, over a dissent, determined defendant, who stole items from a store on a series of separate occasions, had committed a continuing crime and therefore was properly prosecuted for stealing merchandise worth more than $1000.00:

The evidence presented at trial demonstrated that the defendant took similar expensive electronic merchandise from the same store on each occasion, under virtually the same circumstances, and with the assistance of the driver of the minivan. Contrary to the position of our dissenting colleague, we find that this evidence sufficiently established that the defendant stole merchandise “with a single [ongoing] intent, carried out in successive stages” (People v Rossi, 5 NY2d at 401), and that this was not merely a series of distinct petty thefts (see People v Daghita, 301 NY 223, 225 [affirming the defendant’s conviction of a single continuing grand larceny where he stole a “considerable quantity of merchandise over a period of time” from the same store and “used a large portion of it to furnish his home and to outfit his family”]; see also People v Henderson, 163 AD2d 888; cf. People v Seymour, 77 AD3d 976, 980 [insufficient proof that two thefts from the same store constituted a common scheme or plan, where the defendant stole one television during the first incident, a variety of merchandise during the second incident, and each theft was perpetrated in a different manner, since “there was no evidence of the defendant’s intent to commit fraud or of his intent to engage in a plan of continuous fraud”]). People v Malcolm, 2015 NY Slip Op 06829, 2nd Dept 9-16-15

 

,

The Unjustified Denial of Defense Counsel’s Request to Withdraw a Peremptory Challenge Was, Under the Facts, Subject to a Harmless Error Analysis

The Second Department determined the trial court erred when it denied defense counsel’s request to withdraw a peremptory challenge to a juror. However, the error was deemed harmless because of the nature of the evidence against the defendant. On appeal the Second Department primarily addressed whether the harmless error analysis applied to the withdrawal of a peremptory challenge:

The defendant contends that the Supreme Court’s improper denial of his request to withdraw his peremptory challenge is not subject to harmless error analysis, since the error deprived him of his constitutional right to a jury in whose selection he had a voice … . We disagree. While peremptory challenges “are a mainstay in a litigant’s strategic arsenal,” they are “not a trial tool of constitutional magnitude” … . The right to exercise peremptory challenges “is protected by the Criminal Procedure Law, which provides that each party must be allowed’ an equal number of peremptory challenges and that a court must exclude’ any juror challenged” … . Therefore, “the unjustified denial of a peremptory challenge violates CPL 270.25(2) and requires reversal without regard to harmless error” … . However, there is no statutory right to withdraw a peremptory challenge. Further, the instant case does not involve a situation in which the People attempted to peremptorily challenge a juror who had been accepted by the defense in violation of CPL 270.15(2), inasmuch as the People did not object to the defendant’s request to withdraw the peremptory challenge … . Moreover, the defendant was not prejudiced by the loss of the peremptory challenge since, at the conclusion of jury selection, defense counsel had exercised only 9 of his 15 peremptory challenges … . Accordingly, under the circumstances of this case, the error was harmless. People v Marshall, 2015 NY Slip Op 06830, 2nd Dept 9-16-15

 

Failure to Provide Reason for Denial of Youthful Offender Status Required Remittal

The Second Department remitted the matter to Supreme Court because Supreme Court did not place on the record its reasons for denying youthful offender status to the defendant, and there was no indication that Supreme Court considered whether to afford defendant youthful offender status:

In People v Rudolph (21 NY3d 497, 499), the Court of Appeals held that compliance with CPL 720.20(1), which provides that the sentencing court “must” determine whether an eligible defendant is to be treated as a youthful offender, “cannot be dispensed with, even where defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request.” Compliance with CPL 720.20(1) requires that the sentencing court actually consider and make an independent determination of whether an eligible youth is entitled to youthful offender treatment … . Here, the Supreme Court stated that “[t]here is no youthful offender adjudication” when it imposed sentence in accordance with the defendant’s plea agreement. However, the court did not place on the record any reason for not adjudicating the defendant a youthful offender, and there is nothing in the record to indicate that it actually independently considered youthful offender treatment instead of denying such treatment because it was not part of the plea agreement. Under these circumstances, we vacate the defendant’s sentence, and remit the matter … for a determination of whether the defendant should be afforded youthful offender treatment. People v T.E., 2015 NY Slip Op 06827, 2nd Dept 9-16-15

 

,

County Court Should Not Have Dismissed the Indictment on a Ground Not Raised by the Defendant Without Giving the People the Opportunity to Address the Issue

After reviewing the grand jury testimony, County Court dismissed the indictment on a ground (the complainant’s lack of testimonial capacity) not raised in defendant’s omnibus motion.  The Second Department reversed because the People had not been given the opportunity to address the issue:

In an omnibus motion, the defendant sought, inter alia, to dismiss the indictment on the general grounds that the grand jury proceedings were defective and that the charges were not supported by legally sufficient evidence before the grand jury. The County Court, upon its own examination of the grand jury minutes, determined, sua sponte, that there was an issue as to the complainant’s testimonial capacity, and dismissed the indictment on the ground that the complainant lacked testimonial capacity.

The County Court erred in dismissing the indictment based upon a specific defect in the grand jury proceedings not raised by the defendant, without affording the People notice of the specific defect and an opportunity to respond. A motion to dismiss an indictment pursuant to CPL 210.20 must be made in writing and upon reasonable notice to the People (see CPL 210.45[1]). Moreover, “orderly procedures require that the People be given the opportunity to address any alleged defects prior to dismissal of an indictment”… . People v Coleman, 2015 NY Slip Op 06676, 2nd Dept 8-26-15

 

,

Evidence of Photo-Array Identification Properly Allowed to Counter Inference Line-Up Was Suggestive (Defendant Restrained in Line-Up)

The Second Department determined the identification of the defendant in a photo-array was properly allowed in evidence because the defendant was restrained in the line-up, which could give rise to an inference the line-up was suggestive:

Under the circumstances of this case, the Supreme Court properly allowed the admission of evidence concerning the pretrial photographic identification of the defendant made by one of the two complainants. The evidence elicited at a suppression hearing established that the defendant had to be restrained during the lineup at which the complainants identified him due to his uncooperative behavior. Since the restraint of the defendant during the lineup could give rise to an inference that the lineup was suggestive, and the lineup identification made by the complainants was therefore unreliable, the People were properly permitted to counter this inference by introducing evidence of the prior photographic identification… . People v Adamson, 2015 NY Slip Op 06672, 2nd Dept 8-26-15

 

,

Unduly Suggestive Line-Up Required a New Trial

The Second Department ordered a new trial because the hearing court erroneously concluded the line-up was not unduly suggestive. The defendant was the only person in the line-up wearing a red shirt (which was a prominent part of the description of the assailant by the complainant).  A new trial was necessary because the People did not have the opportunity to demonstrate whether there was an independent source for the complainant’s identification:

The hearing court erred in concluding that the pretrial identification procedure, a lineup, was not unduly suggestive. The defendant was conspicuously displayed in that lineup. He was the only lineup participant dressed in a red shirt, the item of clothing which figured prominently in the description of the assailant’s clothing that the complainant gave to the police. Thus, at the lineup, the defendant’s red shirt improperly drew attention to his person … .

The hearing court’s erroneous determination effectively precluded the People from proffering evidence as to whether there was an independent source for the complainant’s in-court identification. Since the People did not have an opportunity to establish the existence of an independent source, if any, a new trial is required, to be preceded by an independent source hearing … . People v Pena, 2015 NY Slip Op 06681, 2nd Dept 8-26-15

 

, ,

Licensing Officer Has Broad Discretion Re: Denial of Application for a Pistol Permit

In upholding the denial of an application for a pistol permit, the Second Department explained the broad discretion afforded the licensing officer:

Penal Law § 400.00(1), which sets forth the eligibility requirements for obtaining a pistol license, requires, inter alia, that the applicant be at least 21 years of age, of good moral character with no prior convictions of a felony or serious offense, who has not had a license revoked or who is not under a suspension or ineligibility order, and a person “concerning whom no good cause exists for the denial of the license” (Penal Law § 400.00[1][n]…). “A pistol licensing officer has broad discretion in ruling on permit applications and may deny an application for any good cause” (… see Penal Law § 400.00[1][n]…).

Contrary to the petitioner’s contention, the licensing officer’s determination that good cause existed to deny the application was not arbitrary and capricious. The determination was rationally based, inter alia, on the petitioner’s criminal history … . Moreover, the licensing officer, by her own observation, found that the petitioner had issues with judgment, credibility, the ability to stay in control, and general moral fitness. Matter of Lawtone-Bowles v Klein, 2015 NY Slip Op 06669, 2nd Dept 8-26-15

 

,

Police-Monitored, Recorded Phone Conversation Between Minor Victim and Defendant Was Admissible

In affirming defendant’s conviction, the Fourth Department determined a police-monitored, recorded phone conversation between the minor victim and the defendant was admissible. “Vicarious consent” to the recording was given by the victim’s mother. The court rejected arguments that the conversation was inadmissible because the victim was acting as a police agent and because the conversation constituted an impermissibly deceptive tactic on the part of the police:

We reject defendant’s further contention that the court erred in refusing to suppress statements that he made during a police-monitored telephone conversation with the victim. There is no merit to his contention that the statements were admitted in violation of CPLR 4506 (1). It is well established that one of the parties to a telephone conversation may consent to the wiretapping or recording of the conversation… , and here the victim gave her consent. Defendant failed to preserve for our review his contention that the victim, as a minor, could not consent to the recording of her own conversations … . We note in any event that the victim’s mother consented to the recording, and we conclude that the “vicarious consent” exemption applies under the circumstances presented such that the admission of the subject recording was not barred by CPLR 4506 … . Also contrary to defendant’s contention, his statements in the controlled telephone call were not inadmissible pursuant to CPL 60.45. Even assuming, arguendo, that the victim was acting as an agent of the police when she telephoned defendant, the calls were recorded with the victim’s consent …, and “the victim did not make a threat that would create a substantial risk that defendant might falsely incriminate himself” … . We reject defendant’s further contention that the controlled telephone call constituted an unconstitutionally deceptive police tactic. “Deceptive police stratagems in securing a statement need not result in involuntariness without some showing that the deception was so fundamentally unfair as to deny due process or that a promise or threat was made that could induce a false confession’ ” … , and there was no such showing here. People v Bradberry, 2015 NY Slip Op 06609, 4th Dept 8-19-15

 

, ,

Proof of Inability to Control Sexual Behavior (Over and Above Proof of Antisocial Personality Disorder [ASPD]), Deemed Sufficient to Justify Confinement as a Dangerous Sex Offender

After the Court of Appeals determined that Antisocial Personality Disorder (ASPD) was not a sufficient ground for a finding of a “mental abnormality” requiring confinement pursuant to the Mental Hygiene Law, Supreme Court vacated its prior adjudication that respondent was a dangerous sex offender requiring confinement. The Third Department, in a full-fledged opinion by Justice Devine, over a two-justice dissent, reversed Supreme Court and reinstated the confinement. The majority concluded there was sufficient evidence of mental disorders (over and above ASPD) which rendered respondent unable to control his sexual behavior. The dissenters found the evidence insufficient. Both the majority and the dissent went through the evidence in detail. The majority explained the general analytical criteria:

In order “[t]o demonstrate that respondent is a dangerous sex offender requiring civil confinement, petitioner was required to prove ‘by clear and convincing evidence that . . . respondent has a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control [his] behavior, that [he] is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility'” … . Respondent takes issue with the finding that he suffered from a mental abnormality, i.e., “a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him . . . to the commission of conduct constituting a sex offense and that results in [his] having serious difficulty in controlling such conduct” (Mental Hygiene Law § 10.03 [i]…).

Substantive due process requires that evidence of a mental abnormality reflect a “serious difficulty in controlling behavior” that, “when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, . . . [is] sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him [or her] to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case” … . As such, “the New York statutory structure does not run afoul of substantive due process because it requires [petitioner] to prove that the individual is dangerous, and the dangerousness must be coupled with a mental abnormality, which — by definition — incorporates the additional requirement that the offender have serious difficulty with behavioral control” … . The Court of Appeals has determined that a diagnosis of ASPD, without more, does not meet that requirement, as it “establishes only a general tendency toward criminality, and has no necessary relationship to a difficulty in controlling one’s sexual behavior” … . Matter of State of New York v Richard TT., 2015 NY Slip Op 06557, 3rd Dept 8-13-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy