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Court of Appeals Can Not Hear the Appeal of an Issue Not Preserved by Objection

The Court of Appeals could not hear the defendant’s appeal because the issue was not preserved by an objection or by an express decision on the question by the trial court. “The issue argued on this appeal is whether the police were required to again read defendant his Miranda rights when they interviewed him a second time, at his request and in the presence of counsel. In particular, defendant contends that the courts below erred in determining that the presence of counsel obviated the need for police to advise him of his right to remain silent during the second interview. Defendant, however, did not make this argument in his motion papers to the trial court or at the suppression hearing. Moreover, while a general objection — such as that contained in defendant’s omnibus motion — is sufficient to preserve an issue for our review when the trial court “expressly decided the question raised on appeal” …, here, Supreme Court did not expressly decide the issue of whether the police were required to advise defendant of his right to remain silent under the circumstances presented by the second interview.” People v Graham, 2015 NY Slip Op 03767, CtApp 5-7-15

 

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Court Can Not Use Its Contempt Power to Compel the District Attorney to Prosecute a Criminal Matter

The District Attorney did not wish to proceed with disorderly conduct prosecutions against persons who demonstrated in support of the Occupy Movement. The City Court judge handling the cases, however, ordered the district attorney to appear at a scheduled suppression hearing, threatening to exercise the court’s contempt powers if the district attorney did not appear. The district attorney appeared but informed the judge no witnesses would be called. When the judge persisted, again threatening to use the contempt powers, the district attorney brought an Article 78 proceeding seeking a writ of prohibition.  The writ was granted and the Court of Appeals affirmed.  Under the doctrine of separation of powers, only the district attorney can decide whether to prosecute.  The courts can not compel the prosecution of criminal actions:

“Prohibition is available to restrain an inferior court or Judge from exceeding its or his [or her] powers in a proceeding over which the court has jurisdiction” … . To demonstrate a clear legal right to the extraordinary writ of prohibition, a petitioner is required to show that the challenged action was “in reality so serious an excess of power incontrovertibly justifying and requiring summary correction” … .

“The concept of the separation of powers is the bedrock of the system of government adopted by this State in establishing three coordinate and coequal branches of government, each charged with performing particular functions” … . Under the doctrine of separation of powers, courts lack the authority to compel the prosecution of criminal actions … . Such a right is solely within the broad authority and discretion of the district attorney’s executive power to conduct all phases of criminal prosecution (see County Law § 700 [1]… ).

The courts below correctly determined that a trial court cannot order the People to call witnesses at a suppression hearing or enforce such a directive through its contempt powers. Any attempt by the Judge here to compel prosecution through the use of his contempt power exceeded his jurisdictional authority. It is within the sole discretion of each district attorney’s executive power to orchestrate the prosecution of those who violate the criminal laws of this State … . Matter of Soares v Carter, 2015 NY Slip Op 03879, CtApp 5-7-15

 

Charging the Defendant with the Use of Two Weapons During a Single Incident Did Not Render the Indictment Duplicitous—Only Proof of the Use of One Weapon Was Required

The indictment alleged the defendant committed assault and reckless endangerment by using a pistol and a rifle.  The proof at trial demonstrated the defendant shot the victim twice, using two weapons, in the course of the same incident. The judge charged the jury using the conjunctive language of the indictment.  When the jury asked if it must find both weapons were used to commit the offenses, the judge explained that only the use of one of the weapons needed to be proved. The Court of Appeals affirmed, concluding the indictment was not duplicitous, i.e., the indictment did not charge two crimes in a single indictment count:

CPL 200.30 (1) requires that “each count of an indictment may charge one offense only.” Thus, a count is duplicitous if it charges more than one offense. …”[W]hether multiple acts may be charged as a continuing crime is resolved by reference to the language in the penal statute to determine whether the statutory definition of the crime necessarily contemplates a single act.” Under Penal Law § 120.10 (1), a person is guilty of assault in the first degree when “with intent to cause serious physical injury to another person, he [or she] causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.” Thus, the prosecution was not required to prove that defendant used two weapons. Penal Law § 120.25 states that a person is guilty of reckless endangerment in the first degree when, “under circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person.” Again, the prosecution was not required to prove that defendant used both weapons.

…[T]he evidence at trial did not render the charges duplicitous. There was evidence that defendant attacked the victim out of one impulse – to seek revenge for the fiancée’s alleged assault on defendant’s sister….”[A]s a general rule . . . it may be said that where a defendant, in an uninterrupted course of conduct directed at a single victim, violates a single provision of the Penal Law, he commits but a single crime.” Although defendant used two guns, this was a single incident … . People v Flanders, 2015 NY Slip Op 03768, CtApp 5-7-15

 

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Murder Conviction Against the Weight of the Evidence—Strangulation Was the Result of an Attempt to Increase Sexual Pleasure—No Intent to Kill

The Second Department determined that defendant’s conviction for intentional murder was against the weight of the evidence.  The victim died of strangulation, but the defendant’s actions were motivated by the desire to increase sexual pleasure, not by an intent to kill.  People v Davis, 2014 NY Slip Op 03277, 2nd Dept 5-7-14

 

Assault and Robbery Committed by Separate Acts Involving the Same Victim–Consecutive Sentences Justified

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge dissent, determined defendant was properly sentenced consecutively for robbery and assault.  The defendant first demanded that the victim turn over a necklace the victim was wearing. As the victim was complying, the defendant shot the victim. The court determined the two crimes were committed by separate acts, thereby justifying consecutive sentences. The dissent dealt with a different issue: i.e., whether CPL 430.10 prohibited Supreme Court from “reconfiguring” defendant's sentence after the case was remitted to it by the Appellate Division. After the Appellate Division determined two of the original sentences should have been imposed concurrently, the original 40-year sentence was reduced to 25. On remand, the sentencing court “reconfigured” the sentences to bring them up again to 40 years. CPL 430.10 prohibits the sentencing court from “modifying” a sentence after it has begun to be served. The “reconfigured” 40-year sentence was affirmed here by the Court of Appeals.  With respect to the consecutive sentences, the court explained:

Penal Law § 70.25 (2) mandates that concurrent sentences be imposed for “two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other.” We have held that, “[t]o determine whether consecutive sentences are permitted, a court must first look to the statutory definitions of the crimes at issue” to discern whether the actus reus elements overlap … . Even where the crimes have an actus reus element in common, “the People may yet establish the legality of consecutive sentencing by showing that the 'acts or omissions' committed by defendant were separate and distinct acts” … . Conversely, where “the actus reus is a single inseparable act that violates more than one statute, [a] single punishment must be imposed” … . The People bear the burden of establishing the legality of consecutive sentencing by “identifying the facts which support their view” that the crimes were committed by separate acts … .

Even if, as defendant contends, the statutory elements of his robbery and assault convictions overlap, the People have demonstrated in this case that the assault count and the robbery count at issue were committed by separate and distinct acts. People v Rodriguez, 2015 NY Slip Op 03877, CtApp 5-7-15

 

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Plea of “Nolo Contendere” to a Sex Offense in Florida Constitutes a “Conviction” of a Sex Offense Requiring Registration in New York

Petitioner pled “nolo contendere” to a sex offense in Florida. Petitioner contended that the offense was based on his having consensual sex with a 15-year-old classmate when petitioner was 18.  The Florida court withheld adjudication. The Court of Appeals determined petitioner was required to register as a sex offender upon his move to New York. The “nolo contendere” plea meets the definition of “conviction” in New York. A “sex offender” in New York is one who has been “convicted” of a “sex offense” which includes a felony in another jurisdiction for which the offender is required to register as a sex offender (the case here):

We held in People v Daiboch (265 NY 125 [1934]), … that the entry of a nolo contendere plea in another jurisdiction, followed by a judgment placing the defendant on probation for two years, was a prior conviction for purposes of sentencing the defendant as a second offender. Although Daiboch did not involve SORA, we confronted the same issue presented by this case: whether a defendant's out-of-state nolo contendere plea for which a non-incarceratory sentence was imposed qualifies as a conviction in New York. Nolo contendere pleas, like Alford pleas, are “no different from other guilty pleas” (Matter of Silmon v Travis, 95 NY2d 470, 475 [2000] [recognizing that an Alford plea may generally be used for the same purposes as any other conviction]). And because New York defines a conviction to include the entry of a guilty plea, regardless of the subsequent sentence or judgment, the ultimate disposition of petitioner's Florida conviction is irrelevant. New York distinguishes between a conviction and a “judgment of conviction,” the latter of which includes “a conviction and the sentence imposed thereon” (CPL 1.20 [15]). As we have previously observed, the Legislature intended the Criminal Procedure Law to provide the “definitive meaning” of the term “conviction” for other criminal statutes, and it meant what it said when it defined “conviction” separately from a judgment or sentence … . Matter of Kasckarow v Board of Examiners of Sex Offenders of State of N.Y., 2015 NY Slip Op 03878, CtApp 5-7-15

 

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Admission of Child Abuse Made by Defendant to Psychiatrist Protected by Physician-Patient Privilege—Even Though the Admission Can Be Disclosed in Child Protective Proceedings, the Privilege Applies in a Criminal Trial

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that an admission of child sexual abuse made to the defendant's psychiatrist was privileged.  The psychiatrist should not have been allowed to testify about the admission at defendant's trial.  The error was not harmless. The Court made it clear that the relaxed evidentiary standards in child protective proceedings where physicians are required to report abuse, do not extend to the context of a criminal trial where the defendant's liberty is at stake:

The Legislature has determined that the protection of children is of paramount importance, so much so that it has either limited or abrogated the privilege through statutory enactments.

The People erroneously assert that these exceptions place offenders on notice that the physician-patient privilege does not apply to statements or admissions triggering a duty to disclose. But it is one thing to allow the introduction of statements or admissions in child protection proceedings, whose aim is the protection of children, and quite another to allow the introduction of those same statements, through a defendant's psychiatrist, at a criminal proceeding, where the People seek to punish the defendant and potentially deprive him of his liberty. Evidentiary standards are necessarily lower in the former proceedings than in the latter because the interests involved are different. Thus, the relaxed evidentiary standards in child protection proceedings lend no credence to the People's argument that defendant should have known that any admission of abuse he made to his psychiatrist would not be kept confidential. People v Rivera, 2015 NY Slip Op 03764, CtApp 5-7-15

 

Court Should Not Have Instructed the Jury on the Initial Aggressor Exception to the Justification Defense—No Evidence to Support the Exception

The First Department, over a dissent, determined the trial court should not have instructed the jury that the justification defense would not apply if the jury determined defendant was the initial aggressor.  The victim was swinging a mop handle, while the defendant used a gun. The majority held that there were no facts in the record from which it could be inferred the defendant was the initial aggressor: “In charging the jury on the justification defense, the court erred when, over defendant’s objection, it included the initial aggressor exception to the defense embodied in Penal Law § 35.15(1)(b). This concept, that defendant would not have been justified in using deadly physical force if he was the initial aggressor, was completely inapplicable to the facts of the case. Although the jury could have reasonably determined that defendant’s use of deadly force was unjustified (where defendant used a gun against the deceased, who wielded a mop handle), it could not have reasonably found that defendant was the initial aggressor because the evidence does not support such a conclusion. There was no evidence that defendant was the first person in the fatal encounter to use or threaten the imminent use of deadly force, or any kind of force, for that matter. On the contrary, the evidence tended to indicate either that it was the deceased who first used force, by swinging a mop handle at defendant, or that defendant and the deceased used or threatened force simultaneously.” People v Valentin, 2015 NY Slip Op 03914, 1st Dept 5-7-15

 

Where One Resident Consents to a Search and Another Resident Does Not Consent, the Search Can Not Be Executed—However, the Refusal to Consent Is Only Operative As Long As the Objecting Resident Is Physically Present

The Third Department explained that where one resident consents to a search of the premises, but another resident does not consent, the search can not be conducted.  However, a resident’s refusal to consent is operative for only as long as the resident is present at the premises.  Here the objecting resident left the premises and the police properly executed the search with the consent of the remaining resident:

Even in the absence of a warrant, police may lawfully search a residence where an inhabitant with apparent authority to consent to the search freely and voluntarily does so … . However, where one resident consents to a search and another refuses, “[the] warrantless search of [the] shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him [or her] on the basis of consent given to the police by another resident” … . Notably, however, the objecting resident’s refusal operates to counteract the other resident’s consent only so long as the objecting resident is physically present on the premises … . People v Grillo, 2015 NY Slip Op 03880, 3rd Dept 5-7-15

 

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Defendant’s Limited Right to Seek the Advice of an Attorney Before Consenting to a Breathalyzer Test Was Violated When the Sheriff’s Department Administered the Test Without First Telling Defendant an Attorney Had Communicated with the Sheriff’s Department on Her Behalf

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a dissent, determined defendant's breathalyzer test results were properly suppressed.  After her arrest for Driving While Intoxicated, the defendant did not ask to speak with an attorney and consented to the test.  However, her family communicated with an attorney who called before the breathalyzer test was administered and told the sheriff's department not to test or question the defendant.  The Court of Appeals determined the sheriff's department was obligated to inform the defendant about the attorney's communication before administering the test:

In People v Gursey (22 NY2d 224 [1968])… we recognized a limited right of the accused to seek legal assistance in alcohol-related driving cases. We held that, based on the warning procedure set forth in section 1194 (2) (b), “if a defendant arrested for driving while under the influence of alcohol asks to contact an attorney before responding to a request to take a chemical test, the police 'may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication'” … . Violation of this right to legal consultation generally requires suppression of the scientific evidence …. Because time is of the essence in obtaining accurate chemical test evidence …, we further observed in Gursey that a suspect's communication with a lawyer regarding “the exercise of legal rights should not [] extend so far as to palpably impair or nullify the statutory procedure requiring drivers to choose between taking the test or losing their licenses” … .

It is therefore well established that “there is no absolute right to refuse to take the test until an attorney is actually consulted, nor can a defendant use a request for legal consultation to significantly postpone testing” … . In other words, conferring with counsel is permissible only if “'such access does not interfere unduly'” with timely administration of the test … . * * *

In our view, the statutory right to legal consultation applies when an attorney contacts the police before a chemical test for alcohol is performed and the police must alert the subject to the presence of counsel, whether the contact is made in person or telephonically. Gursey contemplated that a lawyer retained to represent a DWI arrestee can directly communicate with the police, reasoning that “law enforcement officials may not, without justification, prevent access between the criminal accused and [the] lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly” with the administration of alcohol test … . The fact that defendant consented to the breathalyzer about the same time that the attorney was communicating with the police is not dispositive since defendant, after conferring with counsel, could have revoked her consent prior to administration of the test (see generally Vehicle & Traffic Law §§ 1194 [2] [b], 1194-a [3] [c]). The police therefore must advise the accused that a lawyer has made contact on the accused's behalf … . Once so informed, the accused may choose to consult with counsel or forego that option and proceed with the chemical test. People v Washington, 2014 NY Slip Op 04190, CtApp 5-6-14

 

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