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Under the Facts, the Merger Doctrine Precluded Convictions on Both Kidnapping and Burglary Counts/Statements and Lineup Identification Made after Defendant Invoked His Right to Counsel Should Have Been Suppressed

The Second Department reversed defendant’s convictions, dismissed the counts which violated the merger doctrine, and ordered a new trial on the remaining counts.  The merger doctrine precluded the kidnapping counts because the restraint of the complainants was inseparable from the burglary count of which defendant was convicted. Supreme Court should have suppressed statements made after defendant invoked his right to counsel and should not have allowed identification evidence stemming from a lineup about which defendant’s attorney was not informed. On remand, the court must conduct an “independent source” hearing to determine if the witness can identify the defendant without reliance on the tainted lineup. The Second Department also noted that prior uncharged-crime evidence was improperly admitted to prove “identity:”

The defendant correctly contends that his conviction of four counts of kidnapping in the second degree must be vacated by virtue of the merger doctrine. Under the circumstances of this case, the merger doctrine precludes the convictions of kidnapping in the second degree because the restraint of the complainants was essentially incidental to and inseparable from the count of burglary of which the defendant was convicted … . …

…[T]he hearing court erred in denying those branches of his omnibus motion which were to suppress a statement that he made to law enforcement officials and lineup identification testimony. “A defendant’s unequivocal invocation of counsel while in custody results in the attachment of the right to counsel, indelibly so, meaning that, as a matter of state constitutional law, a defendant cannot subsequently waive the right to counsel unless the defendant is in the presence of an attorney representing that defendant” … . The defendant, who was in custody, invoked his right to counsel prior to waiving his Miranda rights (see Miranda v Arizona, 384 US 436, 444) and giving a statement to law enforcement officials. Since the defendant gave a statement to those officials in the absence of counsel, and after the right to counsel had indelibly attached, the Supreme Court should have suppressed the statement.

Similarly, the defendant’s right to counsel was also violated when police officers conducted a lineup without apprising the defendant’s attorney and affording the attorney a reasonable opportunity to participate … . Since there was no independent source hearing conducted in connection with an in-court identification of the defendant by one of the complainants, the Supreme Court must conduct a hearing, unless waived by the defendant, to determine whether there was an independent source for the in-court identification or, conversely, whether that identification was tainted by the improperly conducted lineup, and thereby rendered inadmissible … . People v Garnes, 2015 NY Slip Op 03381, 2nd Dept 4-22-15

 

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Show-Up Identification Should Have Been Suppressed—Defendant Was Only Person In the Street, Was In Hand-Cuffs, and Was Surrounded by Police

The Second Department determined the complainant’s in-court and pre-trial identification of the defendant should have been suppressed. After the complainant identified the defendant in the show-up, the complainant told the police all the burglars were wearing masks.  The error, however, was deemed harmless.  Probable cause to arrest the defendant existed prior to the show-up:

Here, the hearing testimony demonstrated not only that the perpetrators’ faces were covered during the entire time the complainant was with them, but also that the only description the complainant had previously provided to the police was that the perpetrators were black males. Under these circumstances, it cannot be said that the complainant’s pretrial and in-court identification of the defendant was not founded on the fact that the defendant was the only person standing in the street, in handcuffs, surrounded by the police with high-beam headlights shining on his face, during the showup proceeding … . Nevertheless, the error in admitting this identification evidence at trial was harmless since the other evidence of the defendant’s guilt, including oral and written statements he gave to the police admitting to his participation in the burglary, was overwhelming, and there is no reasonable possibility that the error might have contributed to his conviction … . People v Williams, 2015 NY Slip Op 03390, 2nd Dept 4-22-15

 

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Allowing Testimony that Defendant’s Name Was Mentioned in an Out-of-Court Conversation About the Underlying Assault Was (Harmless) Error/The Confrontation Clause Was Not Implicated Because the Hearsay Was Not Testimonial/Admission of the Hearsay Was Not Justified as “Completing the Narrative” or “Preventing Jury Confusion”

Although the admission of hearsay was deemed harmless error, the First Department determined that allowing the hearsay in evidence to “complete the narrative” or to “eliminate jury confusion” was improper.  The hearsay identified defendant as one of the assailants by indicating the defendant’s name was one of the names mentioned in a phone call about the underlying assault.  The court noted that the Confrontation Clause was not implicated because the hearsay was not “testimonial,”  citing People v Gantt, 48 AD3d 59:

…[T]he hearsay nature of [the] testimony relating [an] out-of-court statement … identifying defendant as [an] assailant — either by name or by an identifying description …— was not remedied by framing the query posed … as seeking the “name mentioned …” during the call.

We do not adopt the trial court’s reasoning that the admission of this hearsay evidence was necessary to convey a coherent narrative of the relevant events or to eliminate the possibility of jury confusion … .  People v Owens, 2015 NY Slip Op 03270, 1st Dept 4-21-15

 

Although a “Fundamental” Error Requiring Reversal If Preserved, Failure to Administer the Oath of Truthfulness to Potential Jurors is Not a “Mode of Proceedings” Error

The Third Department determined that defendant was not entitled to reversal based on the trial judge’s failure to administer the oath of truthfulness to potential jurors (Criminal Procedure Law 270.15(1)(a))  because the error, although fundamental, was not preserved for appeal by objection. It was not a “mode of proceedings” error (which would not need to be preserved by objection to require reversal). Had the error been preserved, reversal would have been mandatory. People v Chancey, 2015 NY Slip Op 03197, 3rd Dept 4-16-15

 

Defendant Who Objected to the Amount of Restitution at Sentencing Was Entitled to a Hearing Even Though the Restitution-Amount Was (Apparently) Specified in the Plea Agreement

The Second Department determined defendant, who objected at sentencing to the amount of restitution, was entitled to a hearing, even though the specific restitution-amount was (apparently) made part of the plea agreement.  The restitution was related to the “buy money” used by the police in a related drug deal.  The court explained the relevant law:

Under Penal Law § 60.27(9), a defendant may be ordered to pay restitution for funds used by law enforcement in the purchase of drugs, if certain prerequisites are met. Before a defendant may be directed to pay restitution, a hearing must be held if either: (1) the defendant objects to the amount of restitution and the record is insufficient to establish the proper amount; or (2) the defendant requests a hearing (see Penal Law § 60.27[2]…). This procedure must be followed even if the plea agreement contains a provision for a specific amount of restitution … . People v Morrishill, 2015 NY Slip Op 03187, 2nd Dept 4-15-15

 

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The Facts that a Witness Had Given a Statement to the Police and Was on the People’s Witness List Did Not Demonstrate the People Had Control Over the Witness—Request for Missing Witness Charge Properly Denied

The Second Department determined Supreme Court properly denied defendant’s request for a missing witness charge for the defendant’s roommate, who had witnessed the shooting and had given a statement to the police during the initial investigation.  The facts that the roommate had given a statement and was placed on the People’s witness list did not demonstrate control over the witness. Without evidence of such control (for example, a material witness order) a missing witness charge is not appropriate:

…[T]he roommate was not under the People’s control at the time of trial by virtue of having provided a statement to the police during the initial investigation stage of the case. In addition, control cannot be found from the People’s placement of the roommate on their witness list, as their wish for his testimony is not indicia of having control over him. There was no material witness order. Indeed, the record contains no evidence that the People’s relationship with the defendant’s roommate gave them any more control over him at trial than the defendant may have had himself.  People v Roseboro, 2015 NY Slip Op 03192, 2nd Dept 4-15-15

 

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Prosecutor Acted as an Unsworn Witness and Improperly Suggested Defendant Committed Offenses With Which He Was Not Charged—Conviction Reversed in the Interest of Justice

The Second Department determined defendant’s weapon-possession conviction must be reversed because of the misconduct of the prosecutor.  Although the errors were not preserved by objection, the court invoked its “interest of justice” power to reach the issue.  The prosecutor functioned as an unsworn witness by indicating, during cross-examination of the defendant, that her office had called a restaurant to find out the closing time and using that information to impeach the defendant’s testimony. The prosecutor, in her summation, accused the defendant of lying based on the unsworn “restaurant closing-time” information she had put on the record.  In addition, the prosecutor suggested that defendant intended to use the weapon to harm someone and had committed multiple gun-possession offenses, unsupported claims not relevant to the charged offense:

The prosecutor improperly functioned as an unsworn witness when she cross-examined the defendant regarding the closing time of a restaurant in Brooklyn … .  The police officers who conducted the traffic stop testified on their direct examinations that the traffic stop occurred at 9:35 p.m. On his direct examination, in contrast, the defendant testified that the traffic stop occurred between 8:00 p.m. and 8:30 p.m., while he and the other occupants of the vehicle were on their way to a restaurant in Brooklyn. During the prosecutor’s cross-examination of the defendant, she improperly suggested facts not in evidence when she implied that the District Attorney’s office had called the restaurant to ascertain its hours of operation, and asked the defendant whether he testified that the traffic stop occurred between 8:00 p.m. and 8:30 p.m. because he knew that the restaurant was not open at 9:35 p.m. … . During summation, the prosecutor again improperly implied, without having submitted any evidence about the closing time of the restaurant, that the defendant had lied about what he was doing at the time of the traffic stop … .

Further, the prosecutor made improper remarks during summation which suggested that the defendant possessed the weapon with an intent to use it to harm someone, even though this was not an element of the crime for which the defendant was on trial … . Similarly, the prosecutor’s questioning of the defendant about one of his tattoos was improper and led to the inflammatory and unsupported inference that the defendant had previously used the weapon to harm someone … . It was also improper for the prosecutor to argue during summation that the defendant had learned certain information during the pretrial hearing even though there was no evidence to support this assertion … .

In addition, the prosecutor’s statement during summation that the defendant did not make any sudden movements during the traffic stop because he had already “played out this exact scenario in his mind . . . every time he left his house with that gun” was improper speculation, without any basis in the record, that the defendant had committed multiple gun possession offenses prior to the subject incident which led to his arrest … .People v Rowley, 2015 NY Slip Op 02988, 2nd Dept 4-8-15

 

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Defendant’s Admissions Re: Uncharged Sex Offenses Justified Upward Departure from the Presumptive Level—Criteria for Upward Departures Explained

In a risk assessment proceeding pursuant to the Sex Offender Registration Act (SORA), the Second Department affirmed the SORA court’s upward departure from the presumptive risk level (level two to level three).  The court explained the general criteria for upward departures. First the court must determine if the People have articulated, as a matter of law, a legitimate aggravating factor. And second, the court must determine if the factor has been demonstrated by clear and convincing evidence.  If those two criteria are met, departure is discretionary. Here the defendant’s admission that he had sexually abused two young girls eight years before the commission of the charged offenses was deemed a legitimate aggravating circumstance not adequately taken into account by the risk assessment guidelines:

A court is permitted to depart from the presumptive risk level if “special circumstances” warrant departure (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). An upward departure is permitted only if the court concludes “that there exists an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” … . In determining whether an upward departure is permissible and, if permissible, appropriate, a SORA court must engage in a multi-step inquiry. First, the court must determine whether the People have articulated, as a matter of law, a legitimate aggravating factor. Next, the court must determine whether the People have established, by clear and convincing evidence, the facts supporting the existence of that aggravating factor in the case before it. Upon the People’s satisfaction of these two requirements, an upward departure becomes discretionary. If, upon examining all of circumstances relevant to the offender’s risk of reoffense and danger to the community, the court concludes that the presumptive risk level would result in an underassessment of the risk or danger of reoffense, it may upwardly depart (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4…).

Here, the People satisfied their burden. An offender’s commission of uncharged sex crimes may constitute an appropriate aggravating factor for purposes of an upward departure if, as here, those uncharged sex crimes have not been accounted for in the Risk Assessment Instrument … . People v DeWoody, 2015 NY Slip Op 02946, 2nd Dept 4-8-15

 

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City’s Possession of Property Seized Upon Arrest, But Which Was No Longer Needed by the People in Connection with the Case, Was Held by the City as a Bailee—the Bailment Did Not Originate in a Contractual Relationship—Therefore the One-Year-Ninety-Days General Municipal Law Statute of Limitations, Not the Six-Year Contract Statute of Limitations, Applied—Action Was Time-Barred

The Second Department, in a full-fledged opinion by Justice Leventhal, determined that the City was a bailee with respect to its possession of defendant’s computers seized upon defendant’s arrest.  When the district attorney determined the computers were no longer needed in connection with defendant’s case, defendant was told he could pick them up.  When the defendant attempted to do so, he was told the computers had been destroyed.  The defendant then sued the city under a bailment theory.  The suit was timely if the six-year statute of limitations for contract actions applied, but untimely if the one-year-90-days statute of limitations in the General Municipal Law applied.  The court determined that the bailment did not result from a contractual relationship (seizure upon arrest).  Therefore the General Municipal Law statute of limitations for actions against the city alleging negligent damage to property applied and the action was time-barred:

Here, the evidence submitted by the City in support of its motion established, prima facie, that the claim between the parties did not originate by virtue of a contractual relationship. The City took control of the plaintiff’s property only in connection with his arrest. Hence, … it cannot be said that the liability alleged by the plaintiff in the complaint “had its genesis in [a] contractual relationship of the parties” … . “A contract cannot be implied in fact where the facts are inconsistent with its existence” … . While the City’s act of taking possession of the plaintiff’s personal property created a bailment, it has been recognized that a bailment does not necessarily and always arise from a contractual relationship … . Thus, as General Municipal Law § 50-i(1) applies to all causes of action against the City seeking to recover damages for injury to property because of negligence or a wrongful act, and the complaint asserts that the City destroyed the plaintiff’s property, the 1-year-and-90-day statute of limitations, not the 6-year limitations period, applies to this action. Wikiert v City of New York, 2015 NY Slip Op 02960, 2nd Dept 4-8-14

 

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Evidence of a Defendant’s Silence In Response to Questions Posed by the Police Cannot Be Introduced in the People’s Case-In-Chief

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a two-judge dissent, determined that state evidentiary rules were violated by testimony, during the People’s case-in-chief, describing the defendant’s silence following some of the questions asked by the police during interrogation. The court noted that although there are (very) limited circumstances when a defendant’s silence, or failure to give a timely exculpatory explanation, can be used to impeach a defendant who takes the stand, no such flexibility applies to the case-in-chief.  There can be many reasons for a defendant’s silence in response to a question, so the probative value of silence is limited.  On the other hand, there is a real danger a jury will interpret a defendant’s silence as evidence of guilt. The error was not harmless as a matter of law–defendant’s conviction was reversed and a new trial ordered:

If silence could constitute an answer, then the People could meet their burden simply by asking a question. Moreover, evidence of a defendant’s selective silence “is of extremely limited probative worth” … . A defendant who agrees to speak to the police but refuses to answer certain questions may have the same legitimate or innocent reasons for refusing to answer as a defendant who refuses to speak to the police at all … . Furthermore, the potential risk of prejudice from evidence of a defendant’s selective silence is even greater than the risk to a defendant who chooses to remain totally silent. Jurors are more likely to construe a defendant’s refusal to answer certain questions as an admission of guilt if the defendant has otherwise willingly answered other police inquiries. The ambiguous nature and limited probative worth of a defendant’s selective silence is outweighed by the substantial risk of prejudice to the defendant from admission of such evidence … . Evidence of a defendant’s selective silence therefore generally may not be used by the People during their case-in-chief and may be used only as “a device for impeachment” of a defendant’s trial testimony in limited and unusual circumstances … .

The People’s use of defendant’s selective silence in this case was improper for another reason. In her opening statement, the prosecutor told the jury that defendant did not admit or deny the accusations when he spoke to the detective. Furthermore, during direct examination of the detective, the prosecutor elicited testimony establishing not only that defendant did not answer when asked whether he had sex with the victim, but also that he did not deny it either. In addition to using defendant’s selective silence as a purported impeachment device during their direct case, the People also invited the jury to infer an admission of guilt from defendant’s failure to deny the accusations. The risk that the jury made such an impermissible inference is substantial where, as here, defendant selectively answered some police questions but not others, and the court refused to provide any curative instruction. The prosecutor’s comments regarding defendant’s selective silence during opening statements were improper, and the court erred in allowing testimony concerning defendant’s selective silence at trial, inasmuch as the comments and testimony allowed the jury to “draw an unwarranted inference of guilt” … . People v Williams, 2015 NY Slip Op 02866, CtApp 4-7-15

 

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