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“For Cause” Challenges to Jurors Who Could Only Say They Would “Try” to Be Fair Should Have Been Granted

The Second Department reversed defendant’s conviction because “for cause” challenges to jurors were denied.  The jurors, who had been victims of crime, could only say they would “try” to be fair:

CPL 270.20(1)(b) provides that a prospective juror may be challenged for cause if the juror “has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial.” Where an issue is raised concerning the ability of a prospective juror to be fair and impartial, the prospective juror must state unequivocally that his or her prior state of mind will not influence his or her verdict, and that he or she will render an impartial verdict based solely on the evidence … . “A prospective juror’s responses construed as a whole, must demonstrate an absolute belief that his [or her] opinion will not influence his [or her] verdict'” … .

Here, during voir dire, two prospective jurors indicated that due to incidents in which they had been the victims of crimes, they were unsure whether they could be objective or impartial. The first prospective juror indicated that he had been “attacked more than once” by gangs in the past, and that the experience colored his opinion of gang members. When pressed, he repeatedly stated that he could only “try” to be fair and impartial. The second prospective juror at issue indicated that he had been the victim of a robbery 11 years earlier, and as a result, moved from Brooklyn to Queens. When asked if that was going to affect his ability to be fair, the juror responded, “I’m not sure, probably not.” He subsequently stated, “I will try my best.” The trial court denied for-cause challenges to the prospective jurors and, since the defense had exhausted all of its peremptory challenges, the second prospective juror at issue was seated.

At no point did the prospective jurors unequivocally state that their prior states of mind would not influence their verdict, and that they would render an impartial verdict based solely on the evidence. Under the circumstances, the trial court should have granted the defendant’s challenges for cause … . People v Garcia, 2015 NY Slip Op 01468, 2nd Dept 2-18-15

Same issue and result in People v Reyes, 2015 NY Slip Op 01473, 2nd Dept 2-18-15

 

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Under the Facts, the Judge’s Failure to Mention the Imposition of Post-Release Supervision as Part of the Sentence at the Time of the Plea Was an Error that Must Be Preserved by Objection (No Objection Made)

The Court of Appeals, over a dissent, determined that defendant, under the facts, was precluded from raising the judge’s failure to inform defendant at the time of defendant’s plea that post-release supervision (PRS) would be part of defendant’s sentence because the error was not preserved by objection.  Here defendant and/or defendant’s counsel had been informed of the imposition of PRS both before and after the plea:

In People v Catu [4 NY3d 242], this Court held that “the trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences” … . A court is not required to engage in any particular litany when allocuting a defendant, but the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant … . We found that “[p]ostrelease supervision is significant” and that a defendant “must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntary and intelligently choose among alternative courses of action” … .

Defendant claims that his plea was not knowing, voluntary and intelligent under Catu because County Court failed to reiterate the term of PRS during the plea colloquy. We hold that, under the circumstances of this case, defendant was required to preserve his claim.

Defendant and his attorney had three opportunities to object to the imposition of PRS: at the initial scheduled sentencing July 15, at his sentencing on July 28, and at the appearance on August 17. Neither defendant nor defense counsel expressed any objection to the imposition of PRS. Because defendant had ample opportunity to raise an objection to the PRS component prior to and during these proceedings, defendant was required to preserve his claim … . People v Crowder, 2015 NY Sip Op 01481, CtApp 2-17-15

 

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Local Law Imposing Residency Restrictions Upon a Level One Sex Offender Who Was No Longer Subject to State Sex-Offender Residency Restrictions Preempted by Implication—The Body of State Law Regulating Sex Offenders Evinced the State’s Intent to “Occupy the Field”

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a Nassau County Local Law which prohibited registered sex offenders from residing within 1000 feet of a school was preempted by the body of state law regulating the residency of sex offenders.  In this case, the defendant was adjudicated a level one sex offender (the lowest level of “danger” to the community) and had been discharged from parole.  The state sex-offender residency restrictions no longer applied to him. The Court of Appeals held that the body of law enacted by the state in this area, by implication, evinced an intent to “occupy the field” and therefore local governments did not have the power to enact their own sex-offender residency laws:

Although a local government is constitutionally empowered to enact local laws relating to the welfare of its citizens through its police power, it is prohibited from exercising that power through the adoption of local laws that are inconsistent with the New York State Constitution or any general law of the State (see NY Const, art IX, § 2 [c]; Municipal Home Rule Law § 10 [1] [i]; [ii] [1] [a] [12]). This doctrine of preemption is a significant restriction on a local government’s home rule powers because although localities are “invested with substantial powers both by affirmative grant and by restriction on State powers in matters of local concern, the overriding limitation of the preemption doctrine embodies ‘the untrammeled primacy of the Legislature to act . . . with respect to matters of State concern'” … . * * *

The doctrine of field preemption prohibits a municipality from exercising a police power “when the Legislature has restricted such an exercise by preempting the area of regulation” … . Although field preemption may be “express” as evidenced by the Legislature’s stated directive, it may also “be implied from a declaration of State policy by the Legislature . . . or from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area” … . Intent to preempt the field may “be implied from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given area” … . * * *

The defendant in this appeal is a designated level one sex offender, is not on probation or parole, nor is he subject to conditional release or PRS. None of the [state] provisions that even touch upon residency or placement apply to him. …[T]hat does not mean that the State has delegated to local governments the duty of enacting residency laws concerning registered sex offenders. Nor does it mean … that “the Legislature has chosen to limit its regulations over sex offenders and not to enact a comprehensive legislative scheme in the area concerning the residency restrictions of sex offenders who are not on parole, probation, subject to conditional discharge or seeking public assistance” … . Rather, it is clear that the State has been continuously active in this field and, as such, it is evident that the State has chosen to occupy it. People v Diack, 2015 NY Slip Op 01376, CtApp 2-17-15

 

Defendant Should Not Have Been Denied His Right to Testify Before the Grand Jury Because He Struck Out Waiver Provisions Not Required by Statute

The Court of Appeals determined defendant was denied his right to testify before the grand jury.  The waiver presented to the defendant as a prerequisite to his testifying included the provisions required by statute, plus three additional provisions.  The defendant struck out the additional provisions and signed the waiver.  Because the defendant struck out the three additional provisions, he was not allowed to testify by the district attorney.  The Court of Appeals held that the signed waiver was sufficient, without the struck-out provisions, because it included all the provisions required by statute.  Therefore, defendant should have been allowed to testify:

CPL 190.50 (5) provides that a defendant must be permitted to testify before a grand jury if he serves upon the People a notice of intent to testify, appears at the designated time and place, and signs and submits a waiver of immunity pursuant to CPL 190.45. The parties do not dispute that defendant complied with the first two requirements of CPL 190.50 (5). Rather, the issue presented on this appeal is whether defendant complied with the third requirement of signing a waiver of immunity. CPL 190.45 (1) provides:

“A waiver of immunity is a written instrument subscribed by a person who is or is about to become a witness in a grand jury proceeding, stipulating that he [or she] waives his privilege against self-incrimination and any possible or prospective immunity to which he [or she] would otherwise become entitled, pursuant to section 190.40 . . . . “

The People presented defendant with a waiver of immunity form that included the provisions required by CPL 190.45, and three additional provisions that are not required under that statute. * * *

Defendant’s statutory right to testify before the grand jury was violated. This right “‘must be scrupulously protected'” … . Even with the deletions made by defendant, he complied with the waiver of immunity as required under CPL 190.45; that is, he left intact the provisions that stated he waived his privilege against self-incrimination and any immunity to which he would be entitled. Defendant was only required to meet the requirements of the statute, and nothing more to make a valid written waiver of immunity. The statute is clear, straightforward and concise. When a defendant meets the waiver of immunity requirements of CPL 190.45, he or she must be permitted to testify. People v Brumfield, 2015 NY Slip Op 01377, CtApp 2-17-15

 

Harassment Not a Lesser Included Offense of Attempted Assault Third Degree

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reaffirmed prior case law and held that harassment is not a lesser included offense of attempted assault in the third degree, even where both offenses are based on the same conduct. Here defendant was accused of deliberately bumping into the complainant as she was coming up the stairs.  She fell back but was not injured because her husband was directly behind her on the stairwell.  The defendant was convicted of both offenses and appealed arguing that the harassment conviction could not stand because it was “included” in the attempted assault conviction. The Court of Appeals determined it was possible (in the abstract) to be convicted of one of the two offenses without being convicted of the other because of the different intent requirements—harassment requires the intent to annoy, assault requires the intent to injure:

To establish that a count is a lesser included offense in accordance with CPL 1.20 (37), a defendant must establish “that it is theoretically impossible to commit the greater offense without at the same time committing the lesser” … . Such determination requires the court to compare the statutes in the abstract, without reference to any factual particularities of the underlying prosecution … . Thus, the defendant must show that the offense “is an offense of lesser grade or degree and that in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense” … . Since defendant cannot establish that in all circumstances it is impossible to commit attempted assault without also committing harassment, his challenge to his conviction on both these counts fails as a matter of law.

Our comparison of attempted assault and harassment establishes that these counts do not share a common intent element. To be guilty of attempted assault in the third degree requires proof that defendant “engage[d] in conduct which tends to effect the commission of [assault],” with the “intent to cause physical injury to another” (Penal Law §§ 110, 120.00 [1]). A conviction for harassment requires that defendant “with intent to harass, annoy or alarm another . . . [,] shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same” (Penal Law § 240.26 [1]). People v Repanti, 2015 NY Slip Op 01375, CtApp 2-17-15

 

Denial of “For Cause” Challenges to Jurors Who Said They Needed to Hear “Both Sides of the Story” Required Reversal

The First Department reversed defendant’s conviction because the trial judge did not make inquiries to ensure jurors could be fair before denying defense counsel’s “for cause” challenges.  The jurors said they needed to hear “both sides of the story” indicating they would expect the defendant to testify.  The judge failed to immediately instruct the jury that the defendant was under no obligation to testify:

The court erred in denying, without further inquiry, defendant’s challenges for cause to three prospective jurors, against whom defendant ultimately exercised peremptory challenges. In response to defense counsel’s questioning during jury selection, the panelists at issue expressed, in one form or other, that it would be difficult for them to decide the case if they did not “hear from” defendant or hear his “side of the story.” The court did not instruct the panel on the People’s exclusive burden of proof and a defendant’s right not to testify, and it did not elicit from the panelists at issue “some unequivocal assurance” that they would be “able to reach a verdict based entirely upon the court’s instructions on the law” … .

A prospective juror’s statement to the effect that it is “important to hear both sides” raises the “appear[ance of] assertion of a defendant’s obligation to present a defense” … . Here, although the court had not yet instructed the jurors on the relevant legal principles, defense counsel framed several of her questions in terms of the “right to remain silent.” Further, counsel’s several other attempts to place her questioning in the context of the legal instructions the jurors would receive were cut short by the court, which indicated that it would instruct the jurors “at the appropriate time.” However, the circumstances called for a prompt instruction on the relevant principles regarding the burden of proof and a defendant’s right not to testify or present evidence, along with the elicitation of unequivocal assurances that the panelists would follow that charge. People v Jackson, 2015 NY Slip Op 01385, 1st Dept 2-17-15

 

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Prosecutorial Misconduct Warranted a New Trial

The Fourth Department reversed defendant’s conviction and ordered a new trial because of the prosecutor’s misconduct.  The prosecutor shifted the burden of proof, vouched for the single witness, and appealed to the sympathies of the jury:

The prosecutor began her summation by improperly characterizing the People’s case as “the truth” and denigrating the defense as a diversion ,,, . In addition, the prosecutor implied that defendant bore the burden of proving that the complainant had a motive to lie, thereby impermissibly shifting the burden of proof to defendant … .

Perhaps most egregiously in this one-witness case where credibility was paramount, the prosecutor repeatedly and improperly vouched for the veracity of the complainant … . The prosecutor asked the jury “to listen carefully to the 911 call. It may not clearly state what happened, but statements that [the complainant] made like, I’m bugging, but I tried to catch him, that’s why I left,’ are examples of the ring of truth.” Defense counsel objected, and the objection was sustained. Nonetheless, the prosecutor continued: “I submit to you the (complainant’s statements) are truthful.” The prosecutor also bolstered the complainant’s credibility by making herself an unsworn witness in the case … . In addressing inconsistencies between the complainant’s testimony and his earlier statement to the police, the prosecutor argued that the complainant made only “[o]ne inconsistent statement, from talking to the police and talking to me” (emphasis added). The prosecutor’s remark suggests that the complainant made numerous prior consistent statements to the police and to the prosecutor herself, and we conclude that such suggestion has no basis in the record … .

The prosecutor also improperly appealed to the sympathies of the jury by extolling the complainant’s “bravery” in calling the police and testifying against defendant … . The prosecutor told the jurors that it was “not an easy decision” for complainant to call the police, and asked them to “hang [their] hat on . . . [the complainant]’s bravery by coming in front of you.” The prosecutor argued that the neighborhood where the crime occurred and where the complainant’s family worked “is an anti-police atmosphere.” After defense counsel’s objection to that comment was sustained, the prosecutor protested that “it was a statement in evidence” when, in fact, that testimony had been stricken from the record, and County Court had specifically warned the prosecutor not “to go into what this area is like.” The prosecutor nonetheless continued her summation by asking the jurors to “[u]se [their] common sense to think about whether or not this happened and why there’s no other witnesses” (emphasis added). The prosecutor argued that the complainant “is someone who knows the game. He knows the neighborhood, and he knows what would have been the easy thing to do, and I submit to you that easy thing to do was not to call 911 that day.” She continued: “So please tell [the complainant] he did the right thing by calling 911 and telling them one man’s word is enough. Tell them that he is brave to report this.” The prosecutor ended her summation by urging the jury to “tell [the complainant] that his truthfulness is enough to convict the defendant” by returning a guilty verdict. People v Griffin, 2015 NY Slip op 01346, 4th Dept 2-13-15

 

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Police May Direct Occupants to Step Out of the Car After a Vehicle-Stop

In affirming the denial of a motion to suppress evidence seized after a vehicle stop the Second Department determined the police properly requested that the occupants step out of the car:

“In light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car” … . People v Mitchell, 2015 NY Slip Op 01292, 2nd Dept 2-11-15

 

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Defendant’s Verbal Abuse of His Lawyer Did Not Constitute a Waiver of His Right to Counsel—Criteria for Valid Waiver Explained

The Third Department determined the defendant did not, by his disruptive behavior and his telling his lawyer she was fired, waive his right to counsel:

Defendant’s “conduct unambiguously indicate[d] a defiance of the processes of law and . . . disrupt[ed] the [hearing] after all parties [were] assembled and ready to proceed,” and he arguably thereby forfeited his right to be present at the hearing … . Nevertheless, he did not validly waive his right to counsel. “For such a waiver to be effective, the trial court must be satisfied that,” among other things, “it has been made competently, intelligently and voluntarily” … . Thus, the court must undertake a “searching inquiry . . . when a defendant [seeks to] waive[] the right to counsel in favor of self-representation[,] aimed at [e]nsuring that the defendant [is] aware of the dangers and disadvantages of proceeding without counsel” … . Here, Supreme Court did not make any attempt to apprise defendant of the risks inherent in proceeding pro se or the importance of counsel’s role, and there is no indication on the record before us that defendant “acted with full knowledge and appreciation of the panoply of constitutional protections that would be adversely affected by counsel’s inability to participate” … . Indeed, defendant stated that he did not wish to represent himself. Inasmuch as the court “did not make the requisite searching inquiry to [e]nsure that defendant was aware of the drawbacks of self-representation before allowing him to go down that path” … . People v Middlemiss, 2015 NY Slip Op 01208, 3rd Dept 2-11-15

 

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Failure to Inform Defendant of His Right to Counsel for an Appeal Taken by the People Deprived Defendant of that Right

The Second Department determined that a defendant must be informed of his right to counsel on an appeal taken by the People:

A defendant has important interests at stake on an appeal by the People, and is thus entitled to certain protections, including “the right to appellate counsel of defendant’s choice and the right to seek appointment of counsel upon proof of indigency” … . “The ultimate duty of informing the defendant of his right to have counsel on appeal rests with the State” … and, absent record evidence that the defendant was informed of the right to counsel and waived that right, the Appellate Division should not proceed to consider and decide an appeal by the People … . Since there is no such record evidence in this case, we agree with the defendant’s contention that he was deprived of his constitutional right to counsel on the People’s appeal to this Court … . Accordingly, we assign counsel to represent the defendant on the People’s appeal …, and will consider and decide the remainder of the application upon the submission of all briefs. People v Clemente, 2015 NY Slip Op 01287, 2nd Dept 2-11-15

 

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