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Juror Had Personal/Professional Relationships with Two Prosecution Witnesses—For Cause Challenge Should Have Been Granted

The Third Department determined the defendant’s conviction must be reversed because a juror had personal/professional relationships with two of the prosecution witnesses and defendant’s for cause challenge to the juror was denied:

A juror whose relationship with a potential witness is so close “that it is likely to preclude him [or her] from rendering an impartial verdict” (CPL 270.20 [1] [c]) must be excused even if the juror states that he or she can be impartial, because “the risk of prejudice arising out of the close relationship . . . [is] so great that recital of an oath of impartiality could not convincingly dispel the taint” … . In determining whether a relationship is so close as to require disqualification, a court should consider factors “such as the frequency, recency or currency of the contact, whether it was direct contact, . . . the nature of the relationship as personal and/or professional . . . [and] any facet of the relationship likely to preclude the prospective juror from being impartial” … . As to the first witness, a former working relationship, without more, will not necessarily give rise to implied bias requiring disqualification … . Here, however, the juror described the relationship as more than merely professional; he stated that he knew the witness well, had discussed many subjects with him, had strong feelings about him and tended to believe him, and he volunteered that he was concerned as to whether the relationship would affect his judgment. The juror’s longstanding social relationship with the second witness was sufficiently close that the witness was aware that the juror had been called to jury duty on the case he had investigated, and sufficiently current that the juror and witness had spoken only a few days before the trial. Thus, this relationship, like that with the first witness, “was far more than a ‘nodding acquaintance'” … . Failure to excuse the juror could have “create[d] the perception that the accused might not receive a fair trial before an impartial finder of fact” … . Accordingly, based upon these two relationships, defendant’s challenge for cause should have been granted. People v Hamilton, 2015 NY Slip Op 02804, 3rd Dept 4-2-15

 

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Defense Counsel Took a Position Adverse to the Defendant’s—Sentence Vacated

The Third Department determined the defendant’s sentence must be vacated because defense counsel took a position adverse to the defendant re: the defendant’s motion to withdraw his plea:

“It is well settled that a defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea”… . While defense counsel need not support a pro se motion to withdraw a plea, counsel may not become a witness against his or her client …, make remarks that “affirmatively undermine” a defendant’s arguments …, or otherwise “take a position that is adverse to the defendant” … . Here, when asked to respond to defendant’s pro se motion, counsel advised that, in his opinion, “[County] Court thoroughly explained everything to him . . ., [defendant had] no questions concerning the plea” and that there was no way that he could see that defendant “pleaded without knowing what he was pleading to.” In our view, because counsel’s opinion was adverse to defendant, a conflict of interest arose and County Court should have assigned a new attorney to represent defendant … . People v Prater,2015 NY Slip Op 02806, 3rd Dept 4-2-15

 

Jury Instruction Reversed Burden of Proof—New Trial Ordered

The Third Department determined defendant’s conviction must be reversed because the trial court’s instruction to the jury reversed the burden of proof.  The defendant was accused of killing a pit bull in violation of Agriculture and Markets Law  353(a)(1):

….[D]efendant contends that County Court erred in rendering a supplemental jury instruction that effectively shifted the burden of proof to defendant to prove his own innocence. While defendant failed to preserve this issue through an appropriate objection, given the nature of the challenged instruction, we exercise our interest of justice jurisdiction to take corrective action … . Without question, the People bear the burden of proving a defendant’s guilt beyond a reasonable doubt, and County Court so charged the jury twice before giving the instruction at issue. After receiving a further note from the jury requesting definitions for certain terms, including “depraved” and “sadistic,” the court determined that it would “be beneficial . . . to once again go over the definition of aggravated cruelty.” In doing so, however, the court advised the jury: “Thus, if you find beyond a reasonable doubt that the defendant did not engage in conduct which caused the animal extreme pain or which was not done or carried out in an especially depraved or sadistic manner, you must find the defendant not guilty.” This charge impermissibly shifted the burden of proof by suggesting that defendant needed to prove his innocence beyond a reasonable doubt. Compounding the problem, the charge was rendered shortly before the jury rendered the guilty verdict. In our view, this was a fundamental error, requiring the reversal of the judgment and a new trial … . People v Facey, 2015 NY Slip Op 02810, 3rd Dept 4-2-15

 

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CRIMINAL LAW/SEX OFFENDER REGISTRATION ACT (SORA) Criteria for Downward Departure Explained (Not Met Here)

The Second Department, in finding the defendant was not entitled to a downward departure to reduce his risk assessment, explained the downward departure criteria:

There is a three-step process to be followed in determining whether a downward departure is appropriate … . “At the first step, the court must decide whether the . . . mitigating circumstances alleged by [the defendant] are, as a matter of law, of a kind or to a degree not adequately taken into account by the guidelines. At the second step, the court must decide whether the [defendant] has adduced sufficient evidence to meet [his or her] burden of proof in establishing that the alleged . . . mitigating circumstances actually exist in the case at hand . . . . [A]t the third step, the court must exercise its discretion by weighing the . . . mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an [over-assessment] of the defendant’s dangerousness and risk of sexual recidivism” … .

Upon our application of the standards set forth in People v Gillotti (23 NY2d 841), the record does not demonstrate the appellant’s entitlement to a downward departure … . The appellant failed to prove, by a preponderance of the evidence …, the existence of any mitigating circumstance “of a kind or to a degree not adequately taken into account by the guidelines” … . People v Stewart, 2015 NY Slip Op 02741, 2nd Dept 4-1-15

 

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Concise Description of the Application of the DeBour Street-Encounter Criteria Leading to the Seizure of a Weapon

The Second Department, in finding the seizure of a gun from the defendant proper, provided a concise application of the DeBour street encounter factors:

The arresting officer testified that he saw, from a distance of “[l]ess than a foot” away, “what looked to be” “two to three inches” of “the butt of a firearm” that was “pulling down” the defendant’s rear pants pocket. These observations gave the officer an objective, credible reason to approach the defendant … . Upon seeing the officer, the defendant immediately turned sideways to obscure his rear pants pockets from the officer’s view, giving the officer a “founded suspicion that criminal activity [was] afoot,” justifying greater intrusion to conduct an inquiry … . At that point, when the defendant lowered his hands in the direction of his waist area, the officer had reason to suspect that he was in danger of physical injury and was authorized to conduct a protective frisk (see CPL 140.50[3]…). Probable cause for the defendant’s arrest arose after the officer grabbed the defendant’s hands for his own safety and, upon “wrestling” with the defendant, saw that the item in the defendant’s back pocket was, in fact, a firearm … . Thus, the record establishes that the officer’s conduct was justified at its inception and reasonably related in scope and intensity to the circumstances of the encounter as it developed … . Moreover, given the legality of the officer’s actions, the defendant’s claim that his post-arrest statement to police should be suppressed as the product of an illegal search or seizure is without merit… . People v Owens, 2015 NY Slip Op 02790, 2nd Dept 4-1-15

 

Sentencing Court Must Place on the Record Its Reasons for Denying Youthful Offender Status

The Second Department noted that the sentencing court must always place on the record its reasons for denying youthful offender status to an eligible youth:

In People v Rudolph (21 NY3d 497, 499), the Court of Appeals held that compliance with CPL 720.20(1), which provides that the sentencing court “must” determine whether an eligible defendant is to be treated as a youthful offender, “cannot be dispensed with, even where defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request.” Compliance with CPL 720.20(1) requires the sentencing court to actually consider and make an independent determination of whether an eligible youth is entitled to youthful offender treatment … .

Here, the Supreme Court failed to adequately place on the record its reasons for denying the defendant youthful offender status. Under these circumstances, we vacate the defendant’s sentence, and remit the matter to the Supreme Court, Kings County, for a determination of whether the defendant should be afforded youthful offender treatment. People v Stevens, 2015 NY Slip Op 02794, 2nd Dept 4-1-15

 

Court’s Failure to Share Entire Contents of Note from Jury Constituted a Mode of Proceedings Error Requiring Reversal

The Second Department determined the trial court’s failure to share the entire contents of a note from the jury was a mode of proceedings error requiring reversal:

CPL 310.30 requires that trial courts give notice to the People and the defense before responding to a note from a deliberating jury … . A court’s ” core responsibility under the statute is both to give meaningful notice to counsel of the specific content of the jurors’ request—in order to ensure counsel’s opportunity to frame intelligent suggestions for the fairest and least prejudicial response—and to provide a meaningful response to the jury'” … . Meaningful notice means notice of the “actual specific content of the jurors’ request” …, and “a court must read a jury note verbatim’ so that the parties have the opportunity to accurately analyze the jury’s deliberations and frame intelligent suggestions for the court’s response'” … .

“Although not every violation of CPL 310.30 is immune from normal preservation principles, a failure to apprise counsel about the specific contents of a substantive note from a deliberating jury violates the fundamental tenants of CPL 310.30 and qualifies as a mode of proceedings error,” which does not require preservation … .

Here, the trial court’s failure to share the entire contents of a substantive note from the jury constituted a mode of proceedings error requiring reversal … . People v Cotton, 2015 NY Slip Op 02780, 2nd Dept 4-1-15

 

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Defense Counsel’s Absence When Judge Decided to Replace a Sick Juror Not Preserved by Objection/Court Need Not Put on the Record Its Consideration of Alternatives to Courtroom Closure/Factual Allegations Insufficient to Justify a Suppression Hearing

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined defense counsel’s absence from the courtroom when the judge put on the record that he was replacing a sick juror was not a mode of proceedings error and was not preserved by objection. Defense counsel entered the courtroom just as the judge seated the alternate juror and did not object. The Court of Appeals also determined the trial judge was not required to put on the record his consideration of measures other than the closure of the courtroom when undercover officers testified, and sufficient facts were not raised in the defense motion papers to justify a suppression hearing:

Here, although defense counsel was not present in court while the judge was stating on the record that he intended to replace the sick juror and counsel for co-defendant was objecting to that replacement, the record shows that prior to arriving in the courtroom, counsel was aware from his discussion with the court that there was a sick juror and that the court had previously excused an alternate juror for psychological reasons. Most importantly, defense counsel was in the courtroom when the judge told the alternate to take the seat of the sick juror. If counsel had any objection to the replacement of the juror, including a desire to be heard further on the issue, he had the time and the opportunity to make his position known. It was incumbent upon him to raise an objection at that time, before the trial proceeded. Certainly, the better practice would have been for the trial judge to await counsel’s arrival before placing his decision regarding the juror on the record. While, as the dissent notes, defense counsel was absent during the on-the-record discussion about dismissing the juror, nonetheless, counsel was present at the critical time when the sick juror was being replaced by the alternate, and counsel did not raise any objection concerning the right to counsel or otherwise, at a time when the trial court had the opportunity to change course. * * *

… [T]his Court has rejected the argument that United States Supreme Court precedent requires a trial court to explain, on the record, the alternatives to closure that it considered (People v Echevarria, 21 NY3d 1, 18 [2013]; People v Ramos, 90 NY2d 490, 504 [1997]). Rather, we have concluded that where the record establishes, as it does here, the need to close a portion of the proceedings, “it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest”… . * * *

… [D]efendant’s simple denial that he was not engaged in any criminal conduct at the time he was stopped did not raise any issue of fact requiring a [suppression] hearing. It was defendant’s role in the conspiracy … and his conduct … at the time of the purchase of the kilogram of cocaine that provided probable cause to arrest him. Under those circumstances, it was incumbent upon defendant to refute the allegations in order to obtain a hearing. People v Garay, 2015 NY Slip Op 02672, CtApp 3-31-15

 

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Line Between Inadmissible Testimonial (Hearsay) Statements and Admissible Non-Testimonial Information Clarified

The Court of Appeals, in a full-fledged opinion by Judge Fahey, with a concurring opinion, determined the defendant’s right to confrontation was violated in one case and not violated in another. (Ostensibly) the hearsay was not admitted for the truth of the matters asserted, but rather to explain police actions.  In one case, the hearsay was deemed testimonial (and inadmissible) because it was substantive enough to have effectively replaced the declarant’s testimony.  In the other case, the information was not deemed testimonial, because any connection with the information and an out-of-court declarant was speculative . The relevant law was described as follows:

…[T]he federal Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial,” unless that witness was unavailable to testify and the defendant had a prior opportunity to cross-examine him or her (Crawford v Washington, 541 US 36, 53-54 [2004]…). “[A] statement will be treated as testimonial only if it was ‘procured with a primary purpose of creating an out-of-court substitute for trial testimony’ ” … and, “[i]f a different purpose underlies its creation, the issue of admissibility of the statement is subject to federal or state rules of evidence” … . Our precedent teaches that “two factors . . . are ‘especially important’ in resolving whether to designate a statement as testimonial—-‘first, whether the statement was prepared in a manner resembling ex parte examination and second, whether the statement accuses defendant of criminal wrongdoing’ ” … . “[T]he ‘purpose of making or generating the statement, and the declarant’s motive for doing so,’ also ‘inform [those] two interrelated touchstones’ ” … .

But this is not to say that testimonial statements are invariably intolerable at trial. The federal Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted” … . Moreover, subject to the exercise of a court’s discretion, otherwise inadmissible evidence that “provide[s] background information as to how and why the police pursued and confronted [a] defendant” … may be admitted to help a jury understand a case in context “if the evidence’s probative value in explaining the [pursuit] outweighs any undue prejudice to the defendant,” and if the evidence is accompanied by a ” proper limiting instruction[]’ “… . People v Garcia, 2015 NY Slip Op 02675, CtApp 3-31-15

 

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Introduction of “Prompt Outcry” Evidence in a Rape Trial, After the People, Pre-Trial, Had Informed Defense Counsel and the Court There Would Be No Evidence of a “Prompt Outcry,” Required Reversal

The Court of Appeals, in a full-fledged opinion by Judge Stein, reversed defendant’s conviction in a rape case because the People, prior to trial, indicated there would be no “prompt outcry” evidence and, at trial, “prompt outcry” evidence was introduced.  Because defense counsel had formulated trial strategy and conducted voir dire with the understanding the first time the victim told anyone about the alleged offense was six months after the incident, the prejudice resulting from the “surprise” evidence was substantial:

Based on this record, the trial court abused its discretion when it denied defense counsel’s motion for a mistrial or to strike a portion of complainant’s testimony. Undisputedly, complainant’s testimony that she told her friend “what happened” conveyed to the jury that she had engaged in sexual intercourse with defendant that evening. Although this testimony was relevant, we have observed that relevancy, alone, does not render evidence admissible because “‘it may be rejected if its probative value is outweighed by the danger that its admission would . . . unfairly surprise a party[] or create substantial danger of undue prejudice to one of the parties'” … .

Relying on the People’s pre-trial representation, defense counsel shaped his trial strategy — from voir dire to his opening statement — based on his founded belief that complainant did not disclose the alleged rapes until months after they occurred. Complainant’s testimony that she disclosed her accusations against defendant — even partially — the same night as the alleged assaults, took defendant by surprise because it was inconsistent with the People’s earlier position and with complainant’s grand jury testimony. Despite the People’s admission that they “expected” complainant to testify in such a manner, the prosecutor inexplicably failed to convey this information to defense counsel. As a result, the surprise testimony eviscerated counsel’s credibility with the jury and irreparably undermined his trial strategy. People v Shaulov, 2015 NY Slip Op 02676, CtApp 3-31-15

 

 

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