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Reverse-Batson Challenge to the Peremptory Challenge of a White Woman by Defense Counsel Properly Sustained/Judge’s Failure to Inform and Seek the Input of the Parties Re: a Jury Note Was a Mode of Proceedings Error Requiring Reversal

The Second Department determined the trial judge properly sustained the prosecutor’s “reverse-Batson” challenge to a peremptory challenge to a white woman by defense counsel.  Defense counsel’s proffered reason, that the juror had her head down and would be a “wall flower” following others on the jury, was deemed pretextual.  The proffered reason was entirely subjective and was not based upon the voir dire.  Reversal of the conviction was warranted, however, because the trial judge did not inform and seek the input of the parties in response to a jury.  Preservation of the error was not required because the record did not reflect that defense counsel was made aware of the contents of the note prior to the judge’s answering it in the jury’s presence:

“Although not entirely insulated from review, the determination of whether an explanation [of the exercise of a peremptory challenge to a a juror in response to a reverse-Batson challenge by the prosecutor] is merely pretextual is generally a matter for the Trial Judge, whose findings are entitled to great deference” … . This is particularly true where, as here, the reason for challenging a prospective juror is based upon certain nonverbal responses and reactions of the prospective juror, which the trial court had the opportunity to observe … . However, “[a]lthough a proffered race- [or gender-] neutral explanation for the exclusion of a potential juror need not rise to the level required to challenge a venireperson for cause,’ . . . the burden cannot be met by merely claiming good faith and denying discriminatory purpose” … . Here, the reason proffered by defense counsel for exercising the peremptory challenge against the subject prospective juror was that, during voir dire, “[s]he had her head down the entire time and was kind of looking down through this process,” from which counsel concluded that she was “going to be a wall flower[ ] and just kind[ ] of go with the flow.” This explanation was purely intuitive and based on counsel’s subjective impression rather than upon facts adduced at voir dire … . To accept the defendant’s bare assertion, unsupported by any factual basis, that the prospective juror was neutral and would not be a strong juror for the defense would be, in effect, to accept no reason at all … . There is nothing in the record to support defense counsel’s purported conclusion that this prospective juror—a 68-year-old sales associate who had previously sat on a jury, did not know anyone in law enforcement, and, unlike many of the prospective jurors, had not been the victim of a crime—would be a weak juror for the defense. * * *

… [T]he jury advised: “We have one juror that feels she cannot make a decision based on the evidence presented to us.” Instead of marking the note as an exhibit and reading it aloud on the record to the parties prior to calling in the jury, the court read the note on the record for the first time in front of the jurors, and then immediately responded by issuing a truncated Allen charge …, encouraging continuing deliberations. This jury note “called for a substantive response that required careful crafting after hearing argument from both the People and the defense” … . Yet there is no indication that the court provided notice to defense counsel and the prosecutor of the contents of the note or “a full opportunity to suggest appropriate responses” … . “[B]y depriving the defendant of meaningful notice of the communication [and] a meaningful opportunity to participate in the formulation of the court’s response,” the court failed to fulfill its “core responsibility” under CPL 310.30, thereby committing an error affecting “the mode of the proceedings” … . Such an error “need not be preserved, and prejudice manifestly results” … . Thus, despite defense counsel’s failure to object to the Supreme Court’s handling of the jury’s notes, reversal is required … .

The People are correct that a timely objection to an alleged O’Rama error may be required where defense counsel had “knowledge of the substance of the court’s intended response” … . However, while the record shows that a discussion was held off the record at the sidebar immediately before the Supreme Court directed the court officer to “bring them in,” it is not evident from the record that defense counsel had knowledge of the contents of the note or how the court would respond to the note. Rather, as far as the record reveals, defense counsel first learned of the court’s response at the same time the jury heard it … . Where a trial transcript does not show compliance with O’Rama’s procedure as required by law, we cannot assume that the omission was remedied at an off-the-record conference that the transcript does not refer to … . People v Brown, 2015 NY Slip Op 04860, 2nd Dept 6-10-15

 

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Seizure of Evidence from the Pocket of the Defendant After a Pat-Down Search on the Street Not Justified Under the “Inevitable Discovery” Exception to the Warrant Requirement—the Doctrine Does Not Apply to “the Very Evidence Obtained in the Illegal Search”—A Justification for the Search and Seizure Not Relied Upon by the People Below Can Not Be Raised on Appeal

The Second Department determined defendant’s motion to suppress jewelry taken from his pocket after pat-down search on the street should have been granted.  At the suppression hearing, the People did not argue that the officer who stopped the defendant had probable cause to arrest the defendant at the time of the pat-down search.  Therefore, the Second Department noted, that argument could not be raised by the People on appeal. At the suppression hearing, the People argued that the jewelry was admissible under the “inevitable discovery” exception to the warrant requirement. However, the “inevitable discovery” exception does not apply to “the very evidence obtained in the illegal search:”

At the suppression hearing, the People expressly disclaimed reliance on the theory that the search of the defendant and the seizure of the jewelry from his pants pocket was justified because the police had probable cause to arrest the defendant at the moment he was stopped, and the hearing court did not address that theory. Thus, the People may not assert this theory on appeal … . Instead, the People argued that the jewelry inevitably would have been discovered, and the Supreme Court relied on that theory in denying that branch of the defendant’s motion which was to suppress the jewelry. The court properly determined that the record does not support a finding that the police officer legitimately believed that the jewelry might be some kind of weapon … . However, as the People now correctly concede, the court erred in its determination that the jewelry inevitably would have been discovered through normal police procedures, as the inevitable discovery doctrine does not apply to primary evidence, that is, “the very evidence obtained in the illegal search,” such as the jewelry at issue here … . Accordingly, that branch of the defendant’s motion which was to suppress the jewelry should have been granted. People v Henagin, 2015 NY Slip Op 04864, 2nd Dept 6-10-15

 

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Defense Counsel’s Failure to Pursue a Minimal Investigation (i.e., Failure to Access Defendant’s Psychiatric Records and Failure to Have the Defendant Examined by an Independent Psychiatrist) Constituted Ineffective Assistance of Counsel—Conviction Reversed

The Second Department determined defendant’s motion to vacate his conviction should have been granted.  Defendant suffered from mental illness and had been hospitalized for psychiatric disorders.  The trial court had granted defense counsel permission to access to defendant’s psychiatric records and had granted authorization for the appointment of an independent psychiatrist to evaluate defendant.  Defense counsel did not seek the psychiatric records, nor the evaluation by the independent psychiatrist.  The Second Department, after an in-depth explanation of the criteria, held that defendant was deprived of effective assistance of counsel.  The court noted that the ground at issue here, defense counsel’s failure to pursue minimal investigation, required reversal without a showing that the result of the trial would have been different had the investigation been conducted:

A criminal defendant is guaranteed the effective assistance of counsel under both the federal and the state constitutions (see US Const Amend VI; NY Const, art I, § 6). Generally, to prevail on a claim of ineffective assistance of counsel under the United States Constitution, a defendant must show, first, “that counsel’s representation fell below an objective standard of reasonableness” …, and, second, “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” … .

Under the New York Constitution, a defendant must show that he was not afforded “meaningful representation” … , which also entails a two-pronged test, “with the first prong identical to its federal counterpart” …, and the second being a “prejudice component [which] focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case'” … and, thus, is “somewhat more favorable to defendants” … . A reviewing court must examine whether “the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” … .

Under both state and federal law, a defendant’s right to the effective assistance of counsel includes assistance by an attorney who has conducted a reasonable investigation into the relevant facts and law to determine whether matters of defense can be developed … .

Generally, in order to make out a claim of ineffective assistance under the New York Constitution, a defendant is required to make some showing of prejudice, albeit not necessarily the “but for” prejudice required under federal law … . However, prejudice is not an “indispensable element in assessing meaningful representation” … . The Court of Appeals has indicated that counsel’s failure to pursue the minimal investigation appropriate with respect to an issue central to the defense itself “seriously compromises [the] defendant’s right to a fair trial,” regardless of whether the information would have altered the uninformed strategy counsel employed, or otherwise helped the defense … .

Here, the People’s case hinged almost entirely on their ability to prove the defendant’s state of mind, and trial counsel undisputedly failed to take the minimal steps of obtaining the defendant’s psychiatric records and having him evaluated by an expert, which were necessary to make an informed decision as to whether or not to present a psychiatric defense. Under the circumstances of this case, the People’s argument that, even with the benefit of the evidence trial counsel should have obtained, there is no reasonable chance that a mental disease or defect or EED defense would have been successful, or that the outcome of the trial would otherwise have been different, misconstrues the central issue in this case. The issue is not whether trial counsel’s choice to have certain documents excluded from the record constitutes a legitimate trial strategy, but whether the failure to secure and review crucial documents, that would have undeniably provided valuable information to assist counsel in developing a strategy during the pretrial investigation phase of a criminal case, constitutes meaningful representation as a matter of law … . Trial counsel’s “total failure” in this regard deprived the defendant of meaningful representation … . People v Graham,2015 NY Slip Op 04862, 2nd Dept 6-10-15

 

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The Acts of Applying for a Fake Non-Driver ID Card and Possessing the Fake Non-Driver ID Card Upon Arrest (Four-Months After Submitting the Application) Did Not Constitute a Single Criminal Venture—the Prohibition Against Double Jeopardy Did Not Preclude the Second Charge

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined defendant was not entitled to the dismissal of charges on double jeopardy grounds.  Defendant had used his son’s identification information to procure a non-driver ID card in Suffolk County.  Several months later defendant was stopped by police in Westchester County, presented the fake non-driver ID card, and was subsequently charged with possession of a forged instrument in the second degree. Defendant pled guilty to possession of a forged instrument third degree. When defendant’s son returned to New York State (after a four-year absence) and applied for a driver’s license in Westchester County, authorities became aware of defendant’s submission (in Westchester County) of a fake application (MV-44 form) for the non-driver ID. Defendant was then charged in Westchester County with possession of a forged instrument (the ID application form) as well as forgery.  The Court of Appeals held that the two offenses were not “integrated, interdependent acts as seen in conspiracy cases or complex frauds…”. Therefore, unlike individual acts within such conspiracies or complex frauds, the two acts did not constitute a “single criminal venture.” The court noted: “A closer case might be presented had defendant applied for a driver’s license in Suffolk County with his son’s papers and showed the temporary driver’s license later that same day when his car was stopped by police. In such circumstances, the timing and criminal purpose of the two acts would be more interrelated than the circumstances presented here:”

Under CPL 40.20, a subsequent prosecution for offenses involving the “same criminal . . . transaction,” as defined by CPL 40.10 (2), violates the statutory bar against double jeopardy unless an exception applies.

“‘Criminal transaction’ means conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” (CPL 40.10 [2]). * * *

Part (b) of the CPL 410.10 definition “tends to be more applicable to crimes that involve planned, ongoing organized criminal activity, such as conspiracies, complex frauds or larcenies, or narcotics rings” (7 NY Prac., New York Pretrial Criminal Procedure § 2:6 [2d ed.]). This Court has recognized statutory violations of double jeopardy protections in drug trafficking cases where the “embracive nature of the crime of conspiracy” presents unique circumstances … .

Here, under the test presented by CPL 40.10 (2) (a), the offense of submitting a forged MV-44 form and the offense of presenting a forged non-driver ID to the police were many months apart and … involved different forged instruments — the non-driver’s license and the MV-44 application form — making them different criminal transactions. The Suffolk County charge was based on defendant’s completion and filing of the application form. The offense was complete once defendant submitted the forged application to the DMV in June 2009. The Westchester offense occurred four months later and was based on defendant’s presentation of the forged non-driver’s license to the officer. With the non-driver ID card in hand, defendant could give the appearance of a clean record, which would enable him to evade his criminal history and obtain a loan or employment under a false identity. Applying the alternative test defined by CPL 40.10 (2) (b), this case does not involve the integrated, interdependent acts as seen in conspiracy cases or complex frauds, and as such does not constitute a “single criminal venture” … . People v Lynch, 2015 NY Slip Op 04754, CtApp 6-9-15

 

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Although the Right to Appeal Could Have Been Defined More Fully, Defendant’s Waiver of Appeal In Response to a Colloquy Conducted by the Prosecutor Deemed Sufficient

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissent, determined defendant’s waiver of appeal was valid, noting the nature of the right to appeal could have been defined more fully.  “Regarding the waiver of the right to appeal, the following exchange … took place between the prosecutor and defendant: ‘Q Do you understand that as a condition of this plea you are waiving the right to appeal your conviction and sentence to the Appellate Division [2nd] Department? A Yes. Q Have you discussed this waiver of the right to appeal with your attorney? A Yes. Q In consideration of this negotiated plea[,] do you now voluntarily waive your right to appeal your conviction and sentence under this indictment? A Yes.’ ” The Court of Appeals noted “County Court adequately described the right to appeal without lumping it into the panoply of rights normally forfeited upon a guilty plea.” [The dissent pointed out that the responsibility for the colloquy re: the waiver of appeal was delegated to the prosecutor here:]

….[W]e conclude that the record before us sufficiently demonstrates that defendant knowingly and intelligently waived his right to appeal. There is no meaningful distinction between the plea colloquy here and the colloquy upheld in Nicholson, in which defendant acknowledged his understanding that he was “giving up [his] right to appeal, that is, to take to a higher court than this one any of the legal issues connected with this case” (Nicholson, 6 NY3d at 254). As in Nicholson, the plea colloquy here was sufficient because County Court adequately described the right to appeal without lumping it into the panoply of rights normally forfeited upon a guilty plea. In fact, the People went even further in this case and obtained defendant’s confirmation that he had discussed the waiver of the right to appeal with his attorney and that he was waiving such right in consideration of his negotiated plea, as well as counsel’s confirmation that all motions pending or decided were being withdrawn. Thus, while the better practice would have been to define the nature of the right to appeal more fully — as the court did in Nicholson — the Appellate Division correctly determined that no further elaboration was necessary on the phrase “right to appeal your conviction and sentence to the Appellate Division [2nd] Department” in view of the whole colloquy, particularly given this defendant’s background, including his extensive experience with the criminal justice system and multiple prior guilty pleas that resulted in terms of imprisonment. People v Sanders, 2015 NY Slip Op 04755, CtApp 6-9-15

 

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Hearsay Statement Did Not Meet the “Reliability” Requirement for Admissibility as a Statement Against Penal Interest

The First Department determined defendant’s friend’s alleged hearsay statement that he, not defendant, assaulted the victim was properly precluded. The statement did not meet the “reliability” requirement for admissibility as a statement against penal interest (an exception to the hearsay rule):

This hearsay evidence did not satisfy the reliability requirement for admissibility under the exception for declarations against penal interest …, or under a due process theory … . Defendant’s friend told defense counsel that he neither committed the assault nor made the alleged statements, the statements were contradicted by trial witnesses who testified that the friend was nearby but did not participate in the assault, the statements were allegedly made to persons closely aligned with defendant, and recorded phone calls raised suspicion that defendant had made efforts to manufacture exculpatory evidence. All these factors undermined any reliability this hearsay evidence may have had … . People v Jones, 2015 NY Slip Op 04781, 1st Dept 6-9-15

 

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Inadequate Waiver of the Right to Appeal Required Vacation of Guilty Plea, Despite Lack of Preservation of the Error

The Third Department determined defendant’s waiver of his right to appeal was invalid and his guilty plea must therefore be vacated (in the interest of justice), despite the failure to preserve the error:

Defendant argues that his plea was invalid because County Court failed to advise him of the rights that he would be waiving by pleading guilty, including “the privilege against self-incrimination and the rights to a jury trial and to be confronted by witnesses” … . This argument is unpreserved given defendant’s failure to advance it in his motion to withdraw his plea … . While it is somewhat unclear as to the precise characterization of this type of error … , it is undoubtedly one serious enough to warrant reversal in the interest of justice … . …

… [A] trial court is neither required “to specifically enumerate all the rights to which the defendant was entitled [or] to elicit . . . detailed waivers before accepting [a] guilty plea” …, nor engage in “a uniform mandatory catechism of pleading defendants” … . There must, however, “be ‘an affirmative showing on the record’ that the defendant waived his [or her] constitutional rights” … . County Court made no effort to explain the rights that defendant was giving up by pleading guilty, making nothing more than a passing reference to them when asking if defendant had “any questions.” County Court further failed to establish that “defendant consulted with his attorney about the constitutional consequences of a guilty plea,” instead making a vague inquiry into whether defendant had spoken to defense counsel regarding “the plea bargain” and “the case”… . People v Klinger, 2015 NY Slip Op 04682, 3rd Dept 6-4-15

 

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Before a Sex Offender Can Be Allowed to Represent Himself in a Mental Hygiene Law Section 10 Proceeding (to Determine Whether the Offender Should Be Civilly Confined), the Court Must Conduct the Same “Searching Inquiry” Required in Criminal and Certain Family Court Proceedings to Determine Whether the Offender Understands the Risks of Going Forward Without Counsel

In a full-fledged opinion by Justice Leventhal the Second Department determined that the state had proven the offender was a dangerous sex offender requiring civil confinement.  In so finding, the Second Department went through in detail the proof required to justify civil commitment of a sex offender.  That aspect of the opinion is not addressed here.  The offender represented himself in the civil commitment proceeding.  The Second Department determined that, just as in a criminal trial, before allowing an offender to proceed pro se, the court is required to engage in a “searching inquiry” to make sure the offender understands the consequences of representing himself.  Because no searching inquiry was done here, the Second Department determined the offender’s waiver of his right to counsel was ineffective:

…[A] respondent in a SOMTA (Sex Offender Management and Training Act [Mental Hygiene Law Section 10]) proceeding arguably faces an even more severe threat to his or her liberty than that faced by a criminal defendant. When successfully litigated by the State, such a proceeding can result in civil confinement, after a respondent is released from prison, which is involuntary and indefinite (see Mental Hygiene Law § 10.09), and can last the remainder of a respondent’s life. Therefore, we hold that a respondent in a SOMTA proceeding can effectively waive his or her statutory right to counsel only after the court conducts a searching inquiry to ensure that the waiver is unequivocal, voluntary, and intelligent. Applying these principles here, we find that the Supreme Court failed to secure an effective waiver of the appellant’s right to counsel.* * *

…[T]he appellant could not make an intelligent and voluntary choice to waive the assistance of counsel without being apprised, in any manner, of the dangers and disadvantages of self-representation … . Indeed, the fact that the appellant was alleged to be suffering from a mental abnormality requiring confinement to a mental institution made it all the more imperative that the Supreme Court adequately warn him of the risks inherent in proceeding pro se, and impress upon him the disadvantages of going to trial without the assistance of counsel. Notwithstanding the concerns voiced by the Assistant Attorney General, the Supreme Court erroneously insisted that it had fulfilled its obligations by merely placing on the record that the appellant did not want an attorney, that he understood he would represent himself, and that he could read and write.  Matter of State of New York v Raul L, 2014 NY Slip Op 04019, 2nd Dept 6-4-14

 

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Failure to Suppress Statement Was Not Harmless Error Because the Statement Undermined the Justification Defense—Proof Burdens for “Harmless Error” and the Justification Defense Explained

The Court of Appeals determined the Appellate Division properly found that the “unwarned” statement made by 11-year-old Delroy should have been suppressed. The statement was made in Delroy’s apartment when a police officer asked him “what happened?”. Under the circumstances, “a reasonable 11 year old would not have felt free to leave” at the time the question was asked.  Therefore the question amounted to “custodial interrogation” in the absence of the Miranda warnings. The Court of Appeals, disagreeing with the Appellate Division, ruled the error was not harmless because the statement undermined Delroy’s defense of justification. There was no question Delroy stabbed the 12-year-old complainant.  But questions were raised by the trial testimony whether the stabbing was in self-defense. With respect to proof burdens for “harmless error” and the justification defense, the Court of Appeals explained:

A trial court’s error involving a constitutionally protected right is harmless beyond a reasonable doubt only if “there is no reasonable possibility that the error might have contributed to defendant’s conviction” … . “The People must show that any error was harmless beyond a reasonable doubt [and] [i]n deciding whether the People have met this burden, we consider both the overall strength of the case against defendant and the importance to that case of the improperly admitted evidence” … .

The record shows that while there was no doubt that Delroy had stabbed the complainant, there was evidence supporting Delroy’s justification defense. “The defense of justification . . . permits one to use deadly physical force on another when one reasonably believes that deadly physical force is being used or imminently will be used by such other person” … . The People bear the burden of disproving the defense of justification beyond a reasonable doubt … . * * *

…[T]he People have not demonstrated that there is no reasonable possibility that the wrongly admitted evidence might have contributed to the guilty finding. Matter of Delroy S., 2015 NY Slip Op 04676, CtApp 6-4-15

 

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New Trial Required Because State’s Experts Testified Based On Hearsay Not Demonstrated to Have Been Reliable

The Second Department determined a new civil commitment trial was required because the experts based their testimony in part upon hearsay which had not been demonstrated to be reliable:

As recently held by the Court of Appeals in Matter of State of New York v Floyd Y. (22 NY3d 95, 109), “[d];ue process requires any hearsay basis evidence to meet minimum requirements of reliability and relevance before it can be admitted at an article 10 proceeding. In article 10 trials, hearsay basis evidence is admissible if it satisfies two criteria. First, the proponent must demonstrate through evidence that the hearsay is reliable. Second, the court must determine that the probative value in helping the jury evaluate the [expert’s]; opinion substantially outweighs [its]; prejudicial effect’ (cf. Fed Rules Evid rule 703). These reliability and substantial relevance requirements provide a necessary counterweight to the deference juries may accord hearsay evidence simply because an expert has propounded it.”… .

Here, both of the State’s experts testified to the appellant’s convictions, as well as unproven acts, which formed the basis of their opinion that the appellant suffered from a mental abnormality. The experts provided considerable hearsay testimony concerning these unproven acts, relying, inter alia, upon hearsay evidence within probation reports and other documents, and not personal knowledge. The State failed to demonstrate through other evidence that the aforementioned hearsay testimony was reliable … . As the State failed to establish that the hearsay was reliable, the Court need not determine whether the probative value of such hearsay outweighed its prejudicial effect… . Matter of State of New York v Walter R, 2014 NY Slip Op 04020, 2nd Dept 6=4=14

 

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