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T-Shirts With the Victim’s Photo Worn by Family Members During the Murder Trial Did Not Deprive Defendant of a Fair Trial

The Second Department, in a full-fledged opinion by Justice Miller, over a dissent, determined that defendant was not denied a fair trial because the victim's family wore T-shirts “remembering” the victim in the courtroom:

The court stated that “it would be appropriate to make a better record of what the shirt was. It was [a] white tee shirt with a silk screen with a picture of the deceased with some written language on it.” The court stated that the shirts “weren't inflammatory.” The court had “noticed that shirt” previously, but it “couldn't read what was written on it.” The court stated that the members of the Walton family “sat in the second row of the audience” and that the T-shirts were “not flauntily [sic] displayed in front of the jury, nor . . . did any members of the family bring undue attention to [them].” The court further stated that “most of the members of the family had an outer garment on top of the tee-shirt” so that the jury “wasn't even capable of seeing the entire thing.” The court noted that “[w]hen counsel made the objection, [it] responded and made a record at that time indicating that [it] saw nothing wrong with those shirts.” The court concluded that the conduct of Walton's family had “not inflamed” the jury.

A criminal defendant's right to a trial by an impartial jury is guaranteed by both the federal and state constitutions (see US Const, Sixth Amend; NY Const, art I, § 1). “The requirement that a jury's verdict must be based upon the evidence developed at the trial goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury” … . “[O]ne accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial” … .  * * *

…[A] trial free from a “coercive . . . atmosphere” is a “fundamental principle of due process [that] is well established” … . It has long been recognized in this State that such an atmosphere of coercion may arise through the conduct of spectators: “[i]t is not to be tolerated that men [or women] should go into such a place and manifest their feelings, prejudices or passions, for the purpose of exerting an influence upon those who sit in judgment upon the rights of parties” … .

However, “[t]he safeguards of juror impartiality . . . are not infallible [and] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote” … . “Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen” … .

A trial court, which is in the best position to detect and evaluate the danger that spectator conduct may present to the integrity of the trial process, has a constitutional duty to monitor the atmosphere of the courtroom to ensure that the jury is not exposed to spectator conduct that poses a coercive threat to the jury's ability to remain impartial (see US Const, Sixth Amend; NY Const, art I, § 1…). * * *

… [W]hether any particular conduct, or a court's response to it, has violated a defendant's right to an impartial jury, depends on the particular circumstances of each case … . Such circumstances may include the nature of the crime and the evidence adduced at trial, the nature of the spectator conduct, and the degree to which the jury was exposed to such conduct. It is not necessary for an actual prejudicial effect on the jury to be established … . Ultimately, “the question is whether the [spectator conduct] presents an unacceptable risk . . . of impermissible factors coming into play in the jury's consideration of the case” … . People v Nelson, 2014 NY Slip OP 09019, 2nd Dept 12-24-14

 

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Testimony Insufficient to Overcome Presumption Photo Arrays, Which Were Not Preserved, Were Unduly Suggestive—Subsequent Line-Up, Which Included Persons Much Older than Defendant, Was Unduly Suggestive—New Trial Ordered

The Second Department determined both identification procedures were unduly suggestive and ordered a new trial.  The People did not preserve the photo arrays and the testimony about the photo arrays was insufficient to overcome the presumption the arrays were suggestive.  The subsequent line-up included persons much older that the 18-year-old defendant and, therefore, was unduly suggestive:

The Supreme Court erred in denying that branch of the defendant's omnibus motion which was to suppress identification testimony. The People's failure to preserve the original photographic arrays viewed by the complainants gave rise to a presumption of suggestiveness, and the People did not present sufficient evidence to rebut that presumption … . The fact that the police failed to preserve the arrays viewed by the complainants does not warrant suppression in and of itself. However, the detective's testimony at the suppression hearing as to how the computerized procedure operated was insufficiently detailed to establish its fairness … . The detective gave inconsistent testimony regarding what age criteria he entered in the computer system to generate each photo array. Furthermore, he did not recall how many screens either complainant viewed before each of them recognized the defendant, or how long it took each to make an identification. Therefore, the evidence did not overcome the presumption that the arrays were suggestive … . Although the police had not yet focused on any particular suspect, it cannot be said that the sheer volume of photographs viewed was sufficient to dispel any inference of suggestiveness, as it is unknown how many photographs were viewed by the complainants … .

We need not address whether the subsequent lineup was sufficiently attenuated in time from the photo identification procedure to nullify any possible taint, because the lineup procedure was also unduly suggestive … . While there is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance, the other individuals in the lineup should sufficiently resemble the defendant so that there is no substantial likelihood that the defendant would be singled out for identification … . Upon our review of a photograph of the lineup viewed by the complainants, it is apparent that the defendant and one of the fillers appear to be of similar ages, but the other three fillers appear visibly older than the defendant … . The age disparity was sufficiently apparent as to orient the viewer toward the defendant as a perpetrator of the crimes charged … . People v Robinson, 2014 NY Slip Op 09024, 2nd Dept 12-24-14

 

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“Detained Sex Offender,” Under Article 10, Applies Equally to Lawfully and Unlawfully Detained Sex Offenders

In the course of affirming the finding that appellant was a dangerous sex offender who must be civilly confined, the Second Department noted that Article 10 of the Mental Hygiene Law, which applies to “detained sex offenders,” applies equally to lawfully and unlawfully detained sex offenders.  The court went on to briefly describe the relevant analytical criteria and proof burden:

The appellant's contention that this proceeding was “jurisdictionally flawed” because he did not meet the definition of a detained sex offender is without merit. The appellant was incarcerated upon his conviction of attempted sodomy in the first degree pursuant to Penal Law § 110.00 and former Penal Law § 130.50 at the time that this proceeding was commenced (see Mental Hygiene Law § 10.03[g][1]). The Court of Appeals has made it clear that the statutory language of Mental Hygiene Law article 10 does not distinguish between lawfully and unlawfully detained sex offenders … . * * *

A “dangerous sex offender requiring confinement” is defined under Mental Hygiene Law article 10 as “a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (Mental Hygiene Law § 10.03[e]). The State must establish by clear and convincing evidence that the appellant is a dangerous sex offender requiring confinement (see Mental Hygiene Law § 10.07[f]). Matter of State of New York v Abdul A, 2014 NY Slip OP 09006, 2nd Dept 12-24-14

 

CPL 330.30 Motions Based Upon Matters Outside the Record Properly Denied/Although Not the Case Here, Such Motions Might Be Deemed Premature CPL 440.10 Motions and, As Such, Considered by the Trial Court/Concurring/Dissenting Opinions Disagreed About Whether the Persistent Felony Offender Statute, Which Allows the Judge to Exercise Discretion in Applying the Statute, Violates Apprendi v New Jersey (Requiring Facts Upon Which an Enhanced Sentence May Be Based to Be Decided by the Jury Under a Beyond a Reasonable Doubt Standard)

The Court of Appeals, in a brief memorandum decision, determined that motions to set aside the verdict (Criminal Procedure Law [CPL] 330.30) made in two the cases before the court were properly denied because they raised issues which were outside the record. The court further determined that the persistent felony offender statute (PFO) at issue in one of the cases was properly applied. The court noted that, in some situations, 330.30 motions might be deemed (premature) motions to vacate the conviction (CPL 440.10) and considered by the trial court in that context, but no attempt to invoke CPL 440.10 was made here.  Concurring and dissenting opinions dealt with whether the persistent felony offender statute (PFO) violated Apprendi v New Jersey, 530 US 466 (2000), because factual findings supporting an enhanced sentence are made by the judge, not the jury, and whether the motion to set aside the verdict on the ground that the courtroom was closed to the public for part of the trial should have been considered as a (premature) CPL 440.10 motion to set aside the conviction. People v Giles, 2014 NY Slip Op 08871, CtApp 12-18-14

 

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In a DWI Case, Operation Proved by Circumstantial Evidence

The Third Department determined circumstantial evidence the defendant had been driving while intoxicated was sufficient.  The defendant went to a witness' home seeking assistance after his car ended up in a ditch.  [Although not summarized here, the decision, which affirmed the conviction, also has in depth discussions of errors in juror selection (failure to address bias expressed by a juror re: a DWI case where peremptory challenges eventually exhausted), the criteria for juror disqualification when a juror is related to a witness but does not realize it until the witness testified, and related ineffective assistance claims.]:

A defendant need not be driving to operate a vehicle for purposes of the Vehicle and Traffic Law; it is enough if the evidence shows that he or she is behind the wheel with the engine running … . The testimony was that when defendant arrived on [a witness'] doorstep to request assistance with getting the car out of the ditch, he was alone and smelled of alcohol. In addition to the testimony of [witnesses] describing his efforts, defendant acknowledged that he was behind the wheel of the car, and that the car was running with the wheels spinning as he attempted to drive the car out of the ditch. These factors are sufficient to establish that defendant was operating a motor vehicle on a public highway … . People v Colburn, 2014 NY Slip Op 08875, 3rd Dept 12-18-14

 

Reference to Statute in Indictment Cures Any Omission from the Indictment’s Description of the Elements of the Offense

The Third Department noted that failure to include an element of an offense in the description of the offense in the indictment is cured by a reference (in the indictment) to the relevant statute:

To be sure, defendant's claim that the indictment at issue is jurisdictionally defective survives both his guilty plea and his waiver of the right to appeal … . That said, “[w]here an indictment count incorporates by reference the statutory provision applicable to the crime intended to be charged, it has been repeatedly held that this is sufficient to apprise the defendant of the charge and, therefore, renders the count jurisdictionally valid” … .

Here, defendant pleaded guilty under count 1 of the indictment to the reduced charge of attempting promoting prison contraband in the first degree (see Penal Law §§ 110.00, 205.25 [1]). While it is true that count 1 of the indictment did not allege that defendant “knowingly and unlawfully” introduced dangerous contraband into the correctional facility where he was incarcerated, said count did expressly incorporate by reference the provisions of Penal Law § 205.25 (1), thereby rendering such count jurisdictionally valid… . People v Cane, 2014 NY Slip Op 08879, 3rd Dept 12-18-14

 

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Where Defendant Is Represented on a Pending Charge and Seeks Leniency by Cooperation with Police in the Investigation of An Unrelated Offense, the Police Cannot Question the Defendant About the Unrelated Offense in the Absence of Counsel Unless Defendant Affirmatively Waives His Right to Counsel In Counsel’s Presence

The Court of Appeals, in a full-fledged opinion by Judge Smith, over a dissent, determined that defendant, who was represented by counsel in a pending criminal matter, should not have been questioned in the absence of counsel about another crime.  Defendant, in an attempt to gain leniency, told the police he knew that a friend had committed a stabbing. The police met with the defendant to “wire him up” for a meeting with his friend.  Defendant's attorney, Schwarz, knew defendant was meeting with the police for that purpose.  During the meeting, the defendant was questioned about the stabbing and eventually he admitted he had committed that crime.  He was then read his Miranda rights, which he waived.  The Court of Appeals held that none of the questioning about defendant's involvement with the stabbing should have be done without defendant's affirmative waiver of his right to counsel, in the presence of defendant's attorney:

Defendant relies on the rule, long established in New York, that “[o]nce an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant's right to counsel” … . The People respond that this rule does not apply here because the “proceeding” in which the police questioned defendant on …—their investigation of the supermarket stabbing ——was one that no attorney had entered. Schwarz, in the People's view, represented defendant only in the burglary case, about which he was not questioned.

We do not find this a viable distinction. The stabbing investigation cannot be neatly separated from Schwarz's representation of defendant in the burglary case. Defendant had pinned his hopes for a favorable result in the burglary case on his cooperation with the police investigation of the stabbing. Under these circumstances, Schwarz's duty to his client required him to concern himself with both cases.

Schwarz was not, of course, retained to defend the stabbing case: before the April 19 meeting, defendant had not been charged with the stabbing, and no such charge seemed likely. But Schwarz's obligation in defending the burglary case included an obligation to be alert to, and to avert if he could, the possibility that defendant's cooperation would hurt rather than help him. No responsible lawyer in Schwarz's situation would concern himself with the burglary case alone, indifferent to the disaster that might strike defendant if he incriminated himself in the stabbing.

We therefore conclude that defendant's right to counsel encompassed his conversations with police about the stabbing, as long as those conversations were part of an effort to obtain leniency in the burglary case in which Schwarz represented him. Thus, unless the right to counsel was waived, the police should not have questioned defendant about the stabbing in his lawyer's absence. People v Johnson, 2014 NY Slip Op 08787, CtApp 12-17-14

 

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Sex Offender Who Has Difficulty Controlling Sexual Urges, As Opposed to a Sex Offender Who Is Unable to Control Sexual Urges, Should Be Placed Under Strict and Intensive Supervision, Not Confined

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that respondent sex offender should not be confined in a mental health facility after serving his prison sentence, but rather should be placed under “strict and intensive supervision.”  After finding the “least restrictive alternative doctrine” does not apply to Article 10 (Mental Hygiene Law) proceedings, the Court of Appeals determined the evidence did not support the conclusion respondent was a “dangerous sex offender requiring confinement.”  The evidence demonstrated respondent had, with difficultly, been able to control his sexual urges, but did not demonstrate that he was unable to control them (the requirement for confinement):

The Mental Hygiene Law defines “mental abnormality” as “a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct” (MHL § 10.03 [i] [emphasis added]). By contrast, a “dangerous sex offender requiring confinement” is defined in the Mental Hygiene Law as “a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (MHL § 10.03 [e] [emphasis added]). The statute — which goes on to describe a “sex offender requiring strict and intensive supervision” as a “detained sex offender who suffers from a mental abnormality but is not a dangerous sex offender requiring confinement” (MHL § 10.03 [r]) — clearly envisages a distinction between sex offenders who have difficulty controlling their sexual conduct and those who are unable to control it. The former are to be supervised and treated as “outpatients” and only the latter may be confined. Matter of State of New York v Michael M, 2014 NY Slip Op 08789, CtApp 12-17-14

 

Attempted Murder and Attempted Robbery Convictions, Under the Facts, Required Concurrent, Not Consecutive, Sentences—Applicable Law Described in Some Depth

The Second Department determined defendant, who was convicted of attempted murder and attempted robbery, must be sentenced to concurrent, not consecutive, terms of imprisonment for those two offenses.  The defendant displayed a handgun and demanded money from the victim.  When the victim refused, the defendant struck and shot the victim:

Penal Law § 70.25(2) provides that concurrent sentences must 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.” “Thus, sentences of imprisonment imposed for two or more offenses may not run consecutively (1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” … . However, “trial courts retain consecutive sentence discretion when separate offenses are committed through separate acts, though they are part of a single transaction” … .

Here, consecutive sentences may not be imposed because the act which constituted the offense of attempted murder in the second degree was a material element of the offense of attempted robbery in the first degree. A person is guilty of attempted murder in the second degree when, with intent to commit murder, he or she engages in conduct which tends to cause the death of another person (see Penal Law §§ 110.00, 125.25[1]). A person is guilty of attempted robbery in the first degree, under the Penal Law section charged here, when he or she attempts to forcibly steal property and is armed with a deadly weapon (see Penal Law § 160.15[2]). A person forcibly steals when he or she, in the course of committing a larceny, uses or threatens the immediate use of physical force to prevent or overcome resistance to the taking of the property or to compel the owner to deliver the property (see Penal Law § 160.00[1], [2]). Here, the actus reus of the attempted murder charge was the firing of three shots at Moore, and the actus reus of the attempted robbery charge was the use or threatened use of physical force to attempt to steal property while armed with a deadly weapon. The act which constitutes attempted murder in the second degree is subsumed within the element of using force. Thus, the act constituting attempted murder in the second degree can be a material element of attempted robbery in the first degree … .

In addition, the People have failed to establish that the acts constituting the attempted robbery in the first degree were separate and distinct from the acts constituting the attempted murder in the second degree … . Here, consecutive sentences could not be imposed because it is impossible to determine whether the firing of three gun shots at Moore, which formed the basis of the verdict of guilt on the attempted murder charge, was also the use of force which formed the basis of the jury’s verdict of guilt on the attempted robbery charge … . Therefore, the People have failed to establish that the acts constituting attempted robbery in the first degree were separate and distinct from those constituting attempted murder in the second degree. People v Grant, 2014 NY Slip Op 08859, 2nd Dept 12-17-14

 

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Out-of-Court Statement Leading to Discovery of the Weapon Did Not Violate Defendant’s Right of Confrontation Because There Was No “Direct Implication” the Statement Involved the Defendant’s Possession of the Weapon

The Second Department determined that the right of confrontation issue was preserved for appeal because, although not raised directly, the issue was specifically determined by Supreme Court.  The court further determined that the testimony which alluded to an out-of-court statement leading to the discovery of a blood-covered knife did not violate defendant’s right of confrontation:

Contrary to the People’s contention, the Confrontation Clause (see US Const, 6th amend) issue is preserved for appellate review. While the issue was not “plainly present[ed]” to the Supreme Court …, the court’s ruling on the defendant’s objection demonstrates that the court specifically considered and resolved this issue … .

The defendant’s constitutional right to be confronted with the witnesses against him prohibits the “admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify and the defendant ha[s] had a prior opportunity for cross-examination” … . Here, however, Sergeant Tribble’s testimony and the subsequent testimony relating to the discovery of the weapon did not violate the Confrontation Clause, since there was no direct implication that the nontestifying witness told the police that the defendant possessed the knife, disposed of it, or tried to conceal it … . People v Richberg, 2014 NY Slip Op 08863, 2nd Dept 12-17-14

 

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