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Defendant’s Motion for DNA Testing Should Have Been Granted

The Fourth Department held defendant’s post-conviction motion for DNA testing was sufficient to require a hearing to determine if DNA evidence still existed and, if so, whether it could be tested. The evidence identifying the defendant as the attacker was not overwhelming and semen, found on the victim’s clothes, had never been tested:

Following the attack, a semen stain was found on the crotch of the jumpsuit that the complainant had been wearing. There was no indication that the source of the semen could have been anyone but the attacker …, but no DNA testing was performed on the jumpsuit. Based on the record before us, we conclude that “the evidence of defendant’s guilt was not so overwhelming that a different verdict would not have resulted if . . . DNA testing excluded him” as the source of the semen on the jumpsuit … . We therefore remit the matter to Supreme Court for a hearing to determine whether the jumpsuit is still in existence and, if so, whether there is sufficient DNA material for testing … . People v Flax, 2014 NY Slip Op 03416, 4th Dept 5-9-14

 

Newly Discovered Evidence Indicating Defendant Was Not the Shooter Required a New Trial

The Fourth Department, over a dissent, determined defendant was entitled to a new trial on the basis of new evidence presented in his motion to set aside the verdict:

It is well settled that, in order to establish entitlement to a new trial on the ground of newly discovered evidence, “a defendant must prove that there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and[] (6) which does not merely impeach or contradict the record evidence’ ” … .

We conclude that defendant met his burden of establishing all six factors by a preponderance of the evidence (see CPL 440.30 [6]…).  People v Bryant, 2014 NY Slip Op 03419, 4th Dept 5-9-14

 

People’s Failure, at a Reconstruction Hearing, to Prove Defendant Was Present for the Sandoval Hearing Required Reversal and a New Trial

The Fourth Department determined the People, at a reconstruction hearing, had failed to prove the defendant was present during a Sandoval hearing.  The conviction was therefore reversed and a new trial was ordered. People v Walker, 2014 NY Slip Op 03411, 4th Dept 5-9-14

 

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Statement Elicited by Unnecessary Force Properly Suppressed

The Fourth Department determined the defendant’s statement which led to the discovery of cocaine was the product of unjustified force used by the arresting officer.  Based upon a radio broadcast about a nearby robbery (in which the defendant was not involved), the police were justified in stopping defendant’s car, having the defendant get out of the car, and patting the defendant down for weapons.  After that, however, the arresting officer was not justified in pinning the defendant against the car and repeatedly asking him if he “had anything on him:”

…[T]he People failed to prove beyond a reasonable doubt that defendant’s admission that he possessed drugs was the “result of a free and unconstrained choice’ ” by defendant … . Before repeatedly asking defendant whether he had “anything” on him, the arresting officer conducted a pat frisk and found no weapons. There was thus no need for the officer to be concerned about his safety. Moreover, although defendant did not respond when he was initially asked whether he had anything on him, that did not justify the use of physical force by the officer. It is clear that, as the court determined, defendant’s eventual incriminating response was prompted by the officer’s continuing use of force while repeating the same question that defendant refused to answer or answered in a manner that did not satisfy the officer. Although the People assert that the officer was unable to complete his pat frisk because defendant was attempting to flee, the court stated in its findings that defendant “did not flee or resist,” and the court’s determination in that regard is supported by the record and will not be disturbed … . People v Daniels, 2014 NY Slip Op 03406, 4th Dept 5-9-14

 

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Court Should Not Have Deferred, Over Defense Counsel’s Objection, to Defendant’s Request that the Jury Not Be Charged on a Lesser Included Offense—To Do So Denies Defendant His Right to the Expert Judgment of Counsel

The Fourth Department determined the court erred in deferring to the defendant’s request that the jury not be charged to consider a lesser included offense.  Defense counsel strongly objected to the defendant’s request and so informed the court.  The decision concerning whether to request a “lesser included” jury instruction is solely the province of defense counsel:

In Colville (20 NY3d at 23), the Court of Appeals held that “the decision whether to seek a jury charge on lesser-included offenses is a matter of strategy and tactics which ultimately rests with defense counsel.” In that case, the trial court agreed with defense counsel that a reasonable view of the evidence supported his request to submit two lesser included offenses to the jury (id.). Nevertheless, “contrary to defense counsel’s request and repeated statements that, in his professional judgment, the lesser-included offenses should be given to the jury, the judge did not do so because defendant objected” (id.). The jury convicted the defendant of murder, and the Court of Appeals reversed and ordered a new trial, concluding that, “[b]y deferring to defendant, the judge denied him the expert judgment of counsel to which the Sixth Amendment entitles him” (id. at 32). People v Brown, 2014 NY Slip Op 03374, 4th Dept 5-9-14

 

Resentencing Defendant to Original Sentence (Imposing No Post Release Supervision) Did Not Require Defendant’s Presence

The Fourth Department, over a dissent, determined defendant was properly sentenced even though he was not present at the resentencing.  The original sentence did not include a period of post release supervision [PRS].  The resentence also did not impose PRS.  Therefore, there was no error which adversely affected the defendant:

Defendant … contends that the court erred in conducting the resentence in his absence and without assigning counsel (see Correction Law § 601-d [4] [a]; CPL 380.40 [1]…). That contention is not properly before us because we may only “consider and determine any question of law or issue of fact involving error or defect . . . which may have adversely affected the appellant” (CPL 470.15 [1]). Here, the only issue presented at resentencing was whether the court would impose a period of PRS, and the District Attorney had already informed the court and defendant in writing that the People would consent to the reimposition of the original sentence, i.e., without a period of PRS. Inasmuch as the court reimposed that original sentence, “defendant was not adversely affected by any error, because the result, i.e., freedom from having to serve a term of PRS [with respect to this count of the indictment], was in his favor” … . People v Mills, 2014 NY Slip Op 03388, 4th Dept 5-9-14

 

Indictment Dismissed after Trial as Multiplicitous and Duplicitous/Grand Larceny Can Not Be Based Upon the Violation of a Regulation that Is Civil in Nature

The Fourth Department reversed defendant’s conviction and dismissed the indictment in a prosecution alleging public assistance fraud in the operation of a daycare home.  The indictment charged the defendant with grand larceny, falsifying business records and offering a false instrument for filing.  Essentially, the charges alleged the defendant billed for services provided by an unlicensed care-giver, and billed for services which were not provided.  The Fourth Department held that the entire indictment was rendered multiplicitous and duplicitous by the trial evidence.  In addition, the court determined that the grand larceny count could not be based upon the violation of a regulation requiring the presence of a licensed assistant.

With respect to multiplicity and duplicity, the court wrote:

Prosecutors and grand juries must steer between the evils known as duplicity’ and multiplicity.’ An indictment is duplicitous when a single count charges more than one offense . . . It is multiplicitous when a single offense is charged in more than one count . . . A duplicitous indictment may fail to give a defendant adequate notice and opportunity to defend; it may impair his [or her] ability to assert the protection against double jeopardy in a future case; and it may undermine the requirement of jury unanimity, for if jurors are considering separate crimes in a single count, some may find the defendant guilty of one, and some of the other. If an indictment is multiplicitous it creates the risk that a defendant will be punished for, or stigmatized with a conviction of, more crimes than he [or she] actually committed” … . An indictment that is not duplicitous on its face may be rendered so based upon the trial evidence … .

Here, the People correctly concede that counts 5 through 7, 9, 15 through 17, and 19 of the indictment are duplicitous and multiplicitous inasmuch as they are based on “distinct but not identifiable vouchers.” Those counts are all based on the same time period and the same vendor number and, according to the People, there is no way to identify which voucher refers to which count … .  …

With respect to the remaining counts of the indictment, we agree with defendant that counts 8, 10, 18, and 20 of the indictment were rendered duplicitous by the trial evidence.. . . As noted above, the People alleged that defendant submitted vouchers for monies to which she was not entitled because, at various dates and times, she (1) billed for hours when neither she nor her certified assistant were at the daycare, and (2) she billed for hours when the children were not at the daycare. There is no basis in the record to determine, with respect to each of those counts, whether the jury convicted defendant based upon the first act (billing for hours when the children were watched by uncertified assistants) or the second act (billing for hours when the children were not at daycare), or whether certain jurors convicted defendant upon the former and others upon the latter. Thus, “it is impossible to verify that each member of the jury convicted defendant for the same criminal act”… .

With respect to grand larceny based upon the violation of a regulation, the court wrote:

Count one of the indictment alleges that, between October 1, 2007 and July 30, 2008, defendant “stole property having a value in excess of [$3,000], to wit: a sum of money, belonging to [DSS].” Under Penal Law § 155.05 (1), “[a] person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself [or herself] or to a third person, he [or she] wrongfully takes, obtains or withholds such property from an owner thereof.” Larceny includes “obtaining property by false pretenses” (§ 155.05 [2] [a]). A defendant commits larceny by false pretenses when he or she “obtain[s] possession of money of another by means of an intentional false material statement about a past or presently existing fact upon which the victim relied in parting with the money” … .

Here, the People alleged that defendant committed larceny by false pretenses by charging for times when unlicensed assistants were watching the children in violation of OCFS regulations, and by billing for times when the children were not receiving daycare services. We question whether submitting vouchers for daycare services rendered by an uncertified assistant falls within the definition of larceny. OCFS’s regional manager testified that, although it is a “regulatory violation” for an uncertified assistant to watch children at a group day care, the regulations do not state that daycare providers are not permitted to bill for services rendered by an uncertified assistant. Indeed, the DSS special investigator referred to those hours as “billable” on his charts, although unauthorized by the regulations.

Even assuming, arguendo, that billing for services provided by an uncertified assistant constitutes a “wrongful[ ] tak[ing]” within the meaning of Penal Law § 155.05 (1), we note that “[c]onduct which is wrongful in the civil context is not necessarily wrongful’ within the meaning of the larceny statutes” … .  People v Casiano, 2014 NY Slip Op 03362, 4th Dept 5-9-14

 

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Defendant Entitled to Suppression Hearing Where People Provided No Information About How Defendant Came to the Attention of Law Enforcement Personnel

The First Department determined the defendant’s motion papers, although conclusory, were sufficient to warrant a hearing on whether defendant’s statements should be suppressed.  The People had provided no information about how the defendant came to the attention of law enforcement:

Although the People provided defendant with extensive information about the facts of the crime and the proof to be offered at trial, they provided no information whatsoever, at any stage of the proceedings, about how defendant came to be a suspect, and the basis for her arrest, made hours after the crime at a different location. The People never explained, even by implication, whether defendant met a description, was named by a witness familiar with her, or was connected to the crime in some other way. While the People disclosed defendant’s detailed confession, it did not shed any light on how she came to be arrested … .

Accordingly, given defendant’s complete lack of relevant information, that portion of her motion papers alleging a “lack of probable cause to arrest the defendant based on the unreliability of the information provided to the police and/or the insufficiency of the description,” while conclusory, was sufficient to state a basis for suppression and raise a factual issue requiring a hearing … . People v Wynn, 2014 NY Slip Op 03352, 1st Dept 5-8-14

 

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Judge’s Failure to Apply the “Prejudice versus Probative” Balancing Test to Evidence of Uncharged Bad Acts and Crimes, Combined with the Judge’s Failure to Give the Jury Limiting Instructions About How Such Evidence is to Be Considered by Them, Required Reversal of Defendant’s Conviction

The Third Department reversed defendant’s conviction because the judge never ruled on the admissibility of uncharged prior bad acts and crimes by applying the “prejudicial effect versus probative value” Molineux test, and the judge never gave limiting instructions to the jury about the limited applicability of such evidence.  The charged offense was assault by administering alcohol to the victim (defendant’s wife) without her consent.  The prior bad acts and crimes which were entered into evidence included nonconsensual sex, withholding medication and domestic violence:

To be sure, “[p]rior bad acts in domestic violence situations are more likely to be considered relevant and probative evidence because the aggression and bad acts are focused on one particular person, demonstrating the defendant’s intent, motive, identity and absence of mistake” … and, further, may be “relevant to provide background information concerning the context and history of [the] defendant’s relationship with the victim” … . That said, even assuming that all of the uncharged crimes/prior bad acts at issue here, which, as noted previously, included allegations of nonconsensual sex, domestic violence, bullying and the withholding of certain medications from the victim, fell within one or more of the recognized Molineux exceptions … and indeed constituted relevant and probative evidence, the record fails to reflect that County Court balanced the probative value of such evidence against its prejudicial effect. More to the point, even further assuming that our review of the record disclosed evidence of County Court’s implicit finding in this regard …, the record nonetheless reveals that, despite an appropriate request by defense counsel during the course of the charge conference, no appropriate limiting instructions were provided to the jury … . The absence of such instructions clearly impacted the jury’s deliberations — as evidenced by the jury’s inquiry as to whether the coercion charge “encompass[ed] just the use of alcohol or . . . extend[ed] to unwilling sex. People v Elmy, 2014 NY Slip Op 03300, 3rd Dept 5-8-14

 

Cell Phone In Possession of Inmate Met the Definition of “Dangerous Contraband” in the Context of a “Promoting Prison Contraband” Charge

The Third Department, in a full-fledged opinion by Justice Egan, determined that a cell phone constituted “dangerous contraband” within the meaning of “promoting prison contraband in the first degree.”  The testimony of the supervising superintendent about the protections put in place concerning the recording and restrictions on inmate phone calls were sufficient to demonstrate the cell phone met the definition of “dangerous contraband:”

In this regard, the Court of Appeals has instructed that “the test for determining whether an item is dangerous contraband is whether its particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility’s institutional safety or security” … . Notably, “the distinction between contraband and dangerous contraband” does not turn upon “whether an item is legal or illegal outside of prison . . . [as] [i]t is obvious that an item, such as a razor, may be perfectly legal outside prison and yet constitute dangerous contraband when introduced into that unpredictable environment” … . Similarly, as our case law makes clear, the item in question need not be inherently dangerous in order to qualify as dangerous contraband. Indeed, although weapons are perhaps the most commonly recognized source of dangerous contraband in a prison setting … , courts have — applying the Finley test — reached the very same conclusion with respect to other items made, obtained or possessed by prison inmates, including illegal quantities of drugs …, a disposable Bic lighter …  and hand-drawn maps or knotted links of wire that could be used to facilitate an escape …. Although the majority in Finley did not expressly address this issue, Judge Pigott opined in his concurrence/dissent that, “[i]f the contraband at issue is not inherently dangerous . . . , the People must present specific, competent proof from which the trier of fact may infer that use of the contraband could potentially create a dangerous situation inside the facility” … . As a cell phone admittedly is not an inherently dangerous item, the question is whether the People adduced sufficient proof to establish the cell phone’s potential to be used in such a pernicious manner as to elevate it to the level of dangerous contraband. People v Green, 2014 NY Slip Op 03303, 3rd Dept 5-8-14

 

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