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THE JUDGE SHOULD HAVE DECLARED A MISTRIAL AFTER THE JURY’S REPEATED COMMUNICATIONS EXPLAINING THEY COULD NOT REACH A UNANIMOUS VERDICT; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the judge should have ordered a mistrial after the jury’s repeated communications stating they could not reach a unanimous verdict:

The jury sent its third note regarding deadlock on the fourth day of deliberations, which not only stated that the jurors were “hopelessly deadlocked,” but also that “[a] unanimous decision would only be able to be achieved by the abandonment” of the jurors’ “firm . . . convictions,” and that “any change in their decisions would be untrue and unjust” … . Thus, the jury unequivocally informed the court that any unanimous verdict would be the result of jurors abandoning their genuine beliefs about the defendant’s guilt or innocence in order to achieve a unanimous verdict, which demonstrated that it would have served no purpose to provide additional instructions to the jury to continue deliberating … . Moreover, portions of the court’s instructions delivered after that note were potentially coercive, including the court’s statements that “some of you are locked into your positions and you’re fixed in those positions and inflexible and that’s contrary to what jurors have to do during jury deliberations,” and that “when you were selected as jurors you promised me that you would deliberate and discuss your views with your other jurors, so if you refuse to deliberate or close off your mind then you’re violating your promise and your oath to me” … . Notably, the jury returned a unanimous verdict later on the same day the court gave those instructions. Thus, under the circumstances, the court should have discharged the jury and declared a mistrial. People v Calixte, 2024 NY Slip Op 04079, Second Dept 7-31-24

Practice Point: Here the jury sent out three articulate and detailed notes explaining they could not reach a unanimous verdict. The judge should have declared a mistrial.

 

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A WITNESS IS NOT UNAVAILABLE TO TESTIFY AT A TRIAL BASED UPON THE FEAR OF COMMITTING PERJURY DURING THAT TRIAL; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing the judgment and ordering a new trial, determined a witness was not be unavailable to testify at the trial based upon her fear she would commit perjury at the trial:

“A witness may not claim the privilege of the [F]ifth [A]mendment out of fear that he [or she] will be prosecuted for perjury for what he [or she] is about to say. The shield against self-incrimination in such a situation is to testify truthfully, not to refuse to testify on the basis that the witness may be prosecuted for a lie not yet told” … . “Fear of a perjury prosecution can typically form a valid basis for invoking the Fifth Amendment only where the risk of prosecution is for perjury in the witness’ past testimony” … .

“[T]he court focuses inquiry on what a truthful answer might disclose, rather than on what information is expected by the questioner” … . Simply put, the Fifth Amendment “does not permit a witness to invoke the privilege on the ground that he [or she] anticipates committing perjury sometime in the future” … . There is “no doctrine of ‘anticipatory perjury’ ” … . * * *

We … conclude that the court erred in declaring the victim unavailable and allowing her testimony from the first trial to be read to the jury at the retrial. Inasmuch as the victim was the only person who identified defendant as the person who shot her, we cannot conclude that the evidence of defendant’s guilt is overwhelming, and therefore the error cannot be deemed harmless … . People v Smith, 2024 NY Slip Op 03973, Fourth Dept 7-26-24

Practice Point: The Fifth Amendment does not permit a witness to invoke the self-incrimination privilege on the ground the witness anticipates committing perjury in the future.

 

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THE SPECIAL PROSECUTOR APPOINTED TO HANDLE DEFENDANT’S CASE DID NOT MEET THE QUALIFICATIONS IN THE COUNTY LAW; CONVICTIONS REVERSED AND INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department reversed the convictions and dismissed the indictment because the special prosecutor appointed to handle the case did not meet the statutory qualifications:

“County Law § 701 (1) allows a court to appoint a special district attorney in situations where the district attorney is ‘disqualified from acting in a particular case to discharge his or her duties at a term of any court’ ” … . The Court of Appeals, “[a]cknowledging that a court’s authority under County Law § 701 ‘to displace a duly elected [d]istrict [a]ttorney’ raises separation of power concerns, [has] cautioned that ‘[t]his exceptional superseder authority should not be expansively interpreted’ ” … . As relevant here, section 701 (1) (a) explicitly limits the superseding authority of a court to “appoint[ing] some attorney at law having an office in or residing in the county, or any adjoining county, to act as special district attorney.” Where, as here, a court exceeds its authority by appointing a special district attorney who does not meet those statutory requirements, “[t]he indictment must be dismissed to preserve the integrity of a statute designed narrowly by its terms and by its purpose to fill emergency gaps in an elected prosecutorial official’s responsibility” … . People v Callara, 2024 NY Slip Op 03969, Fourth Dept 7-26-24

Practice Point: If the special prosecutor appointed to handle defendant’s case does not meet the qualifications in the County Law, the convictions will be reversed and the indictment dismissed.

 

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DEFENDANT WAS ACQUITTED OF MENACING AT THE FIRST TRIAL BUT THE EVIDENCE SUPPORTING THE MENACING CHARGES WAS ALLOWED IN THE SECOND TRIAL; THE COLLATERAL ESTOPPEL DOCTRINE PRECLUDED PRESENTATION OF THAT EVIDENCE IN THE SECOND TRIAL; NEW TRIAL ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s convictions and ordering a new trial, determined defendant’s acquittal of menacing in his first trial precluded evidence defendant displayed a firearm during a confrontation in the second trial:

At his second trial, the People were permitted to introduce in their case-in-chief, over defendant’s objection, the testimony of an eyewitness that, during a confrontation in a park that occurred prior to the shooting, defendant had pulled out a gun and waved it at the victim, and had cocked the gun and pointed it at the eyewitness. We agree with defendant that, under the circumstances here, the People were collaterally estopped by the earlier verdict from presenting evidence at defendant’s second trial concerning the alleged display of a gun during the earlier confrontation at the park … .

The doctrine of collateral estoppel “operates in a criminal prosecution to bar relitigation of issues necessarily resolved in defendant’s favor at an earlier trial” … . “[W]here the People have had a full and fair opportunity to contest issues, but have failed, it would be inequitable and harassive to again permit the prosecution to establish these same matters, as if the first trial had never taken place” … . Only those facts that were “necessarily decided” by a prior acquittal will have collateral estoppel effect in a subsequent prosecution … . Although it may “normally be impossible to ascertain the exact import of a verdict,” we are charged with giving “a practical, rational reading to the record of the first trial” to determine “whether a rational jury could have grounded its decision on an issue other than that which the defendant seeks to foreclose from consideration” … .

Here, the two menacing counts alleged that defendant intentionally placed or attempted to place another person in reasonable fear of physical injury, serious physical injury, or death by displaying what appeared to be a firearm, on the basis of his alleged actions at the park shortly before the murder. The eyewitness’s testimony at the first trial was the only evidence supporting the menacing counts. People v Moore, 2024 NY Slip Op 03941, Fourth Dept 7-26-24

Practice Point: Evidence supporting charges of which defendant was acquitted in the first trial cannot be presented in the second trial.

 

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THE STATUTE REQUIRING DEFENDANT TO REGISTER AS A SEXUALLY VIOLENT OFFENDER BASED ON AN OUT-OF-STATE CONVICTION FOR A NONVIOLENT OFFENSE IS UNCONSTITUTIONAL AS APPLIED TO DEFENDANT (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the statute which required designating defendant a sexually violent offender based upon an out-of-state conviction for a nonviolent offense was unconstitutional as applied to her:

In this proceeding under the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant appeals from an order insofar as it designated her a sexually violent offender. Defendant was previously convicted in North Carolina upon her guilty plea of sexual activity by a substitute parent under the theory of aiding and abetting, a felony offense (former NC Gen Stat § 14-27.7 [a]). The conviction required her to register as a sex offender in that state. After defendant moved to New York, the Board of Examiners of Sex Offenders (Board) determined that she was required to register as a sex offender in New York pursuant to Correction Law … .

… [T]he foreign registration clause of Correction Law § 168-a (3) (b) does not withstand constitutional scrutiny as applied to her. Initially, we agree with the People that, although a sexually violent offender designation affects a “liberty interest . . . [that] is substantial” … because it “imposes a stigma that broadly impacts a defendant’s life and ability to participate in society” … , “[t]he right not to have a misleading label attached to one’s serious crime is not fundamental in [the constitutional] sense” … . As a result, defendant’s “constitutional claims [are] subject to [*2]deferential rational basis review” … . That standard of review “is not a demanding” test, but rather “is the most relaxed and tolerant form of judicial scrutiny” … .

Here, defendant established that the People never disputed the nonviolent nature of the sex offense of which defendant was convicted in North Carolina and neither the Board nor the People requested that points be assessed under risk factor 1 for use of violence. Moreover, in support of their position that defendant be designated as a sexually violent offender, the People never argued that the sex offense was the statutory equivalent of a sexually violent offense in New York (see Correction Law § 168-a [3] [b]). In short, the sole reason put forward by the People for seeking the “sexually violent” designation was the operation of the challenged statute. People v Cromwell, 2024 NY Slip Op 03934, Fourth Dept 7-26-24

Practice Point: The Correction Law provision requiring a defendant to register as a sexually violent offender for an out-of-state conviction for a nonviolent offense is unconstitutional as applied.

 

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DEFENDANT WAS ERRONEOUSLY DENIED HIS RIGHT TO BE PRESENT AT THE SANDOVAL HEARING, NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s convictions and ordering a new trial, determined defendant was erroneously deprived of his right to be present for the Sandoval hearing:

Where a defendant is denied the right to be present during a Sandoval hearing, reversal of defendant’s conviction is required (… see … CPL 260.20), unless “defendant’s presence at the hearing would have been superfluous” … . Here, it cannot be said that defendant’s presence at the hearing would have been superfluous because the court’s ruling was a compromise and thus, it was not “wholly favorable to defendant” … . People v Anderson, 2024 NY Slip Op 04042, Fourth Dept 7-26-24

Practice Point: Defendant was erroneously denied his right to be present at the Sandoval hearing, new trial ordered.

 

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THE PEOPLE DID NOT DEMONSTRATE DUE DILIGENCE IN ASCERTAINING THE EXISTENCE OF A FORENSIC REPORT AND DISCIPLINARY RECORDS; TURNING THEM OVER UPON DISCOVERING THEM AND SUMBITTING A SUPPLEMENTAL CERTIFICATE OF COMPLIANCE (COC) DID NOT CURE THE OMISSION (FOURTH DEPT).

The Fourth Department determined the People did not meet their burden of demonstrating compliance with their discovery obligations before filing the Certificate of Compliance (COC):

… [W]e conclude that the People failed to meet their burden of establishing that they exercised due diligence and made reasonable inquiries prior to filing the July 2022 COC … . The People failed to put forward any evidence of their efforts “to ascertain the existence” of either the forensic report or the disciplinary records prior to filing the July 2022 COC (…CPL 245.50 [1]). Rather, the People’s submissions established that, after they became aware of the materials’ existence, they promptly provided them to defense counsel—an assertion that is undisputed. As the Court of Appeals stated in Bay, “post-filing disclosure and a supplemental COC cannot compensate for a failure to exercise diligence before the initial COC is filed” … . We note in particular that the forensic report was completed more than six months before, upon the case being assigned to a new prosecutor, it was discovered and provided …  . People v Baker, 2024 NY Slip Op 04006, Fourth Dept 7-26-24

Practice Point: The People must demonstrate due diligence in ascertaining the existence of discovery material. It is not enough to quickly turn them over upon becoming aware of their existence.

 

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DEFENDANT WAS NOT IN “CLOSE PROXIMITY” TO THE DRUGS WITHIN THE MEANING OF THE “ROOM” OR “DRUG FACTORY” PRESUMPTION; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s possession-of-drugs convictions and ordering a new trial, determined the “room” or “drug factory” presumption was not applicable:

… [S]ection 220.25 (2) provides that “[t]he presence of a narcotic drug . . . in open view in a room . . . under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found.” “Penal statutes ‘must be construed according to the fair import of their terms to promote justice and effect the objects of the law’ ” … . The drug factory presumption is “intended to allow police in the field to identify potentially culpable individuals involved in a drug business, under circumstances that demonstrate those individuals’ participation in a drug operation” … . According to its drafters, the presumption is “designed to remedy that situation wherein police execute a search warrant on a premises suspected of being a ‘drug factory,’ only to find dangerous drugs and/or drug paraphernalia scattered about the room. The occupants of such ‘factories,’ who moments before were diluting or packaging the drugs, usually proclaim their innocence and disclaim ownership of, or any connection with, the materials spread before them. Police, under such circumstances, are often uncertain as to whom to arrest. In addition, with the present burden of proof of knowing possession of dangerous drugs on the [P]eople, successful prosecution of persons other than the owner or lessee of such premises is extremely rare” … . …

… [T]he phrase “close proximity” in Penal Law § 220.25 (2) means “when the defendant is sufficiently near the drugs so as to evince defendant’s participation in an apparent drug sales operation, thus supporting a presumption of defendant’s knowing possession” … . “[T]he proximity determination requires careful consideration of the underlying facts related to defendant’s location on the premises” … . Thus, a defendant need not be apprehended within the same room as the drugs in order to satisfy the element of “close proximity” … , and the presumption applies to a defendant caught while trying to flee the premises upon the sudden entry by police … .  …

… [D]efendant was not apprehended in close proximity to the drugs as contemplated by the drug factory presumption, i.e., he was not “sufficiently near the drugs so as to evince defendant’s participation in an apparent drug sales operation, thus supporting a presumption of defendant’s knowing possession” … . Defendant was not apprehended in the room with the drugs, he was not apprehended fleeing from that room, and he was not apprehended within or outside of the home while attempting to hide from police. Thus, he was not apprehended under circumstances suggesting that he had, just “moments before,” been engaged in drug distillation or packaging … . People v Campbell, 2024 NY Slip Op 03995, Fourth Dept 7-26-24

Practice Point: Consult this decision for an explanation of the “room” or “drug factory” presumption re: the possession of drugs.​

 

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PRIMARILY BECAUSE OF CREDIBILITY ISSUES CONCERNING THE IDENTIFICATION OF THE DEFENDANT, THE SECOND DEPARTMENT REVERSED THE ROBBERY CONVICTION AS AGAINST THE WEIGHT OF THE EVIDENCE; THERE WAS A DISSENT (SECOND DEPT).

The Second Department, over a dissent, determined the defendant’s robbery conviction, which was based primarily on the complainant’s identification evidence, was against the weight of the evidence:

Here, an acquittal would not have been unreasonable since the defendant did not possess the complainant’s wallet, no physical evidence tied him to the scene of the theft or to the Lincoln in which the complainant had been abducted, and the clothing that the defendant was wearing did not match the description of the perpetrator’s clothing. Moreover, upon the exercise of our factual review power (see CPL 470.15[5]), we find that the rational inferences that can be drawn from the trial evidence do not support the convictions beyond a reasonable doubt. Initially, while the People speculate that the defendant could have put on the sweater at some time after he stole the complainant’s wallet, by the complainant’s version of events, the defendant was either engaged in a struggle with the complainant or under the constant watch of the complainant and his friend from the moment of the theft. Furthermore, the taxicab driver candidly admitted that he lost sight of the Lincoln and never saw it again, which cannot be reconciled with the complainant’s testimony that the two vehicles were “bumper to bumper” the entire time the taxicab followed the Lincoln.

The testimony of the complainant and his friend that they saw the defendant exiting the Lincoln cannot be credited.

The testimony of the complainant and his friend suffered other credibility issues. People v Delvalle, 2024 NY Slip Op 03896, Second Dept 7-24-24

Practice Point: Credibility issues can support the reversal of a conviction as against the weight of the evidence.

 

TWO DISSENTERS ARGUED DEFENDANT WAS ENTITLED TO RESENTENCING UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (THIRD DEPT).

The Third Department, over a two-justice dissent, determined County Court properly denied defendant’s request to be resentenced under the Domestic Violence Survivors Justice Act (DVSJA). Defendant pled guilty to manslaughter after her murder and assault convictions were vacated on appeal. She had been in an intimate relationship with the man she killed for a little more than a year:

From the dissent:

Pursuant to Penal Law § 60.12, a court may impose an alternative sentence under the DVSJA when a defendant has established by a preponderance of the evidence following a hearing that “(a) at the time of the instant offense, the defendant was a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of the same family or household as the defendant as such term is defined in [CPL 530.11 (1)]; (b) such abuse was a significant contributing factor to the defendant’s criminal behavior; [and] (c) having regard for the nature and circumstances of the crime and the history, character and condition of the defendant, that a sentence of imprisonment pursuant to [Penal Law §§ 70.00, 70.02, 70.06 or 70.71 (2) or (3)] would be unduly harsh” … . At such a hearing, “the court shall consider oral and written arguments, take testimony from witnesses offered by either party, and consider relevant evidence to assist in making its determination” … . “Reliable hearsay shall be admissible at such hearings” … . “The court may consider any fact or circumstances relevant to the imposition of a new sentence which are submitted by the applicant or the district attorney,” including “the institutional record of confinement of such person” … . “The court’s consideration of the institutional record of confinement of such applicant shall include, but not be limited to, such applicant’s participation in or willingness to participate in programming such as domestic violence, parenting and substance abuse treatment while incarcerated and such applicant’s disciplinary history” … . * * *

… [D]efendant explained that she and the victim had been in a relationship for a little [*8]over a year at the time of the subject incident. Around seven months into their relationship, the victim — who was 65 years old while defendant was 28 — became verbally, sexually and physically abusive. Defendant, who was financially dependent on the victim, detailed “almost daily” acts of violence perpetrated against her during their relationship, including threats to her life and instances in which the victim “slam[med] his fist into the side of [her]head,” “s[u]nk his nails into [her],” punched her, slapped her and scratched her. Defendant also testified that the victim bragged about having previously killed someone, sexually assaulted her while she was bound with a rope and drugged her with hallucinogens. In other statements contained in the record, defendant recounted the victim telling her: “I own you” and “If you leave, I’ll kill you.” He also attempted to control her weight and isolated her from friends and family, taking away her vehicle and phone and leaving her alone for “days on end” at the camp where they resided. She further explained that October 2013 — the month before the incident — was the worst month she had ever experienced in her entire relationship. As for defendant’s assertion that the victim isolated her, defendant’s mother confirmed that, for almost a year before the subject incident, there had been “no communication between [defendant] and her.”

Defendant also presented independent corroborative evidence in this regard … . * * *

A resentencing under CPL 440.47 is warranted. People v Angela VV., 2024 NY Slip Op 03851, Third Dept 7-18-24

​Practice Point: CPL 60.12 allows a reduced sentence for defendants who suffered domestic violence at the hands of the victim, criteria explained.

 

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