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The Failure of the Record to Indicate Whether Notes from the Jury Were Properly Addressed by the Court Constitutes a “Mode of Proceedings” Error

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a partial dissent, determined the failure of the record to indicate whether notes from the jury were properly addressed by the court (pursuant to People v O’Rama, 88 NY2d 270) constituted “mode of proceedings” errors requiring reversal in the absence of preservation:

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 … . The record therefore must indicate compliance with adequate procedures under O’Rama because reviewing courts “cannot assume” that the proper procedure was utilized when the record is devoid of information as to how jury notes were handled … . The “presumption of regularity” … cannot salvage an … error of this nature … . People v Silva, 2014 NY Slip Op 08215, CtApp 11-24-14

 

Defendant’s Conviction Properly Reversed Because the Verdict Was Inconsistent/Repugnant—Charge Which Was the Subject of Conviction in the Inconsistent/Repugnant Verdict Can Be Presented to a New Grand Jury

The Court of Appeals, in a full-fledged opinion by Judge Read, determined that defendant’s conviction was properly reversed because the verdict was inconsistent/repugnant, but that the People should be allowed to resubmit that charge to a new grand jury. Defendant was convicted of manslaughter in the first degree as a hate crime, but the jury acquitted defendant of manslaughter in the first degree.  Because, to aquit, the jury must have found that at least one of the elements of manslaughter in the first degree was not proven, the manslaughter in the first degree as a hate crime necessarily suffered from the same failure of proof.  The People argued that the jury instructions gave the jurors the impression they could acquit on the non-hate-crime manslaughter and still find the defendant guilty of the hate-crime manslaughter:

The rationale for the repugnancy doctrine is that the defendant cannot be convicted when the jury actually finds, via a legally inconsistent split verdict, that the defendant did not commit an essential element of the crime … . Given that premise, “a verdict is repugnant only if it is legally impossible — under all conceivable circumstances — for the jury to have convicted the defendant on one count but not the other,” and, “[i]f there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case” … .

Accordingly, repugnancy does not depend on the evidence presented at trial or the record of the jury’s deliberative process, and “[t]he instructions to the jury will be examined only to determine whether the jury, as instructed, must have reached an inherently self-contradictory verdict” … . In making these determinations, it is inappropriate for the reviewing court to “attempt to divine the jury’s collective mental process” … . “Jurors are allowed to compromise, make mistakes, be confused or even extend mercy when rendering their verdicts” … . * * *

There is no constitutional or statutory provision that mandates dismissal for a repugnancy error. Given that New York’s repugnancy jurisprudence already affords defendants greater protection than required under the Federal Constitution, permitting a retrial on the repugnant charge upon which the jury convicted, but not on the charge of which the jury actually acquitted defendant, strikes a reasonable balance. This is particularly so given that a reviewing court can never know the reason for the repugnancy. Accordingly, the People may resubmit the crime of first-degree manslaughter as a hate crime to a new grand jury … . People v DeLee, 2014 NY Slip Op 08212, CtApp 11-24-14

 

Defendant Not Given Adequate Time to Decide Whether to Testify Before the Grand Jury—Conviction Reversed

In reversing defendant’s conviction, the Fourth Department determined defendant was not given adequate time to decide whether he wished to testify before the grand jury:

We agree with defendant that County Court erred in denying his motion to dismiss the indictment pursuant to CPL 210.20 (1) (c) because he was denied his right to testify before the grand jury. The prosecutor notified defendant and his counsel at the arraignment on the felony complaint that the matter would be presented to the grand jury the next morning, in less than 24 hours. Later that day, defense counsel notified the court that he could no longer represent defendant due to a conflict of interest. The following morning, after the grand jury voted to indict defendant, he was assigned new counsel. Defense counsel objected to the short notice of the grand jury proceeding and gave the prosecutor written notice of defendant’s intent to testify. The prosecutor offered defendant the opportunity to testify before the grand jury before it filed the indictment, but refused defendant’s request to testify before a different grand jury.

We agree with defendant that he was not given “reasonable time to exercise his right to appear as a witness” before the grand jury (CPL 190.50 [5] [a]). “CPL 190.50 (5) (a) does not mandate a specific time period for notice; rather, reasonable time’ must be accorded to allow a defendant an opportunity to consult with counsel and decide whether to testify before a [g]rand [j]ury” … . Under “the particular facts” of this case (id. ), including the less than 24 hours’ notice of the grand jury proceeding and assigned counsel’s withdrawal from representation, we conclude that defendant did not have reasonable time to consult with counsel and decide whether to testify before the case was presented to the grand jury … . People v Hymes, 2014 NY Slip Op 08202, 4th Dept 11-21-14

 

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Denial of Pistol Permit Application Was Based Upon a Misinterpretation of Penal Law 400.00

The Third Department determined County Court had based its denial of petitioner’s pistol permit application upon a misreading of Penal Law 400.00.  County Court interpreted the statute to mean that the prior revocation of a pistol permit for any reason rendered the petitioner ineligible.  However, the statute should have been interpreted to refer only to prior revocations pursuant to Criminal Procedure Law 530.14 and Family Court Act 842-a:

Respondent denied petitioner’s pistol permit application based upon Penal Law § 400.00 (1) (k) (formerly Penal Law § 400.00 [1] [e]), finding that petitioner was ineligible for a pistol permit because of the prior revocation of his permit. Penal Law § 400.00 (1) (k) provides that no permit may be issued to an individual “who has [] had a license revoked or who is [] under a suspension or ineligibility order issued pursuant to the provisions of [CPL] 530.14 . . . or [Family Ct Act § 842-a].” Respondent interpreted this statute as two separate clauses and automatically barred petitioner from being issued a permit because his license had previously been revoked, despite the fact that the revocation was unrelated to either CPL 530.14 or Family Ct Act § 842-a.

We agree with petitioner that this was erroneous, as our reading of the statute indicates that the bar to issuance of a pistol permit “applies only in conjunction with the application of the Criminal Procedure Law and Family Court Act sections cited therein, which deal with orders of protection, and provides that a person who has previously had a firearms license revoked pursuant to those sections is ineligible to hold such a license”… .  * * *

Although the revocation of petitioner’s pistol permit and the reasons therefor unquestionably could have some bearing on whether there is “good cause” to deny his current application (Penal Law § 400.00 [1] [n]), respondent’s denial of the application was based, not on a finding of “good cause” but, rather, upon respondent’s misinterpretation of Penal Law § 400 (1) (k). Matter of Gerard v Koweek, 2014 NY Slip Op 08084, 3rd Dept 11-20-14

 

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Cross-Examination of People’s Witness About Her Past Status as a Confidential Informant Properly Precluded—Status Ended a Year Before and Witness Had Legitimate Safety Concerns

The First Department determined the defense was properly precluded from cross-examination of one of the People’s witnesses about her past status as a confidential informant:

The witness’s service as an informant had concluded a year before the instant crime and did not involve defendant, the People demonstrated that the witness had legitimate safety concerns regarding disclosure of her status, and there was nothing in the circumstances of the case to raise a suspicion that her past informant status contributed to her becoming a prosecution witness in this case. People v Lopez, 2014 NY Slip Op 08117, 1st Dept 11-20-14

 

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Fact that Prosecutor Had Represented the Defendant in the Past Did Not Require Disqualification—No Substantial Risk of an Abuse of Confidence

The Third Department determined that the fact that the District Attorney had represented the defendant 16 years before did not require disqualification:

Ordinarily, “[a] public prosecutor should be removed only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence” … . Here, the fact that the District Attorney may have previously represented defendant in prior, unrelated criminal matters, without more, does not require his disqualification … . Further, although the District Attorney sought to impeach defendant using prior contempt convictions arising from marital problems that defendant alleges he had discussed with the District Attorney, County Court’s refusal to allow any inquiry into the underlying facts of these convictions eliminated any possible avenue by which the District Attorney might have utilized any confidential information that he may have acquired … . As 16 years had passed since any such alleged confidences had been shared, the passage of time had also diminished the risk of prejudice … . As defendant did not demonstrate a substantial risk of an abuse of confidence or any actual prejudice, we find no error in County Court’s determination … . People v Giroux, 2014 NY Slip Op 08060, 3rd Dept 11-20-14

 

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Fabricated Checks Using Defendant’s Name and Signature Were Not “Forged Instruments”

The Third Department affirmed the dismissal of forgery charges because, although the defendant fabricated the checks at issue, the defendant did not portray herself as someone other than herself in executing the checks:

…[A] “… person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he [or she] utters or possesses any forged instrument of a kind” as described under Penal Law § 170.10 (Penal Law § 170.25). A forged instrument is defined as a “written instrument which has been falsely made, completed or altered” (Penal Law § 170.00 [7]). Importantly, a person “‘falsely makes’ a written instrument when he [or she] makes . . . [an] instrument, which purports to be an authentic creation of its ostensible maker . . ., but which is not such either because the ostensible maker . . . is fictitious or because, if real, he [or she] did not authorize the making . . . thereof” … . Determining whether a document is forged “does not depend so much on whether it contains a falsehood, but on whether, on its face, it misrepresents its authenticity” … .

Defendant did not attempt to portray herself as someone other than herself in executing the checks … . Nor does this case present a situation in which defendant made out the checks without attaining the requisite authorization from another individual … . Thus, the checks at issue in this matter “were not falsely made,” as provided in the forgery statute … . Defendant’s fabrication of the checks bearing her name and address, as the purported bank account holder, makes her the ostensible maker … and the placement of defendant’s signature on the checks renders defendant the actual maker of the checks. Where, as here, the ostensible maker and the actual maker of the written instrument are the same person, the alleged crime of criminal possession of a forged instrument in the second degree must be dismissed … . People v Zeller, 2014 NY Slip Op 08068, 3rd Dept 11-20-14

 

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County Court Failed to Warn the Defendant that His Lack of Knowledge, When Compared with that of a Lawyer, Would Be Detrimental—Defendant Did Not Validly Waive His Right to Counsel

The Third Department reversed defendant’s conviction and ordered a new trial because County Court failed to ensure that defendant validly waived his constitutional right to counsel.  County Court did not adequately explain that defendant’s lack of knowledge, as compared to the knowledge of a lawyer, would be detrimental:

A defendant seeking permission to proceed pro se must “effectuate[] a knowing, voluntary and intelligent waiver of the right to counsel” …. To this end, the trial court is required to “conduct a ‘searching inquiry’ to clarify that [the] defendant understands the ramifications of such a decision” … . The court’s inquiry “‘must accomplish the goals of adequately warning a defendant of the risks inherent in proceeding pro se, and apprising a defendant of the singular importance of the lawyer in the adversarial system of adjudication'” … . As the reviewing court, we may “look to the whole record, not simply to the waiver colloquy, in order to determine if a defendant effectively waived counsel” (People v Providence, 2 NY3d at 583).

* * * [The court] did not sufficiently advise [defendant] of “the ‘dangers and disadvantages’ of proceeding pro se and the value of trained trial counsel knowledgeable about criminal law and procedure” … . In fact, with respect to the dangers of self-representation, the court merely noted that defendant risked “losing objectivity” by representing himself. Absent from County Court’s inquiry was any warning that defendant’s “lack of knowledge, relative to that of a lawyer, [would] be detrimental if [he] cho[se] to waive the right to counsel” … . People v Guarnieri, 2014 NY Slip Op 08067, 3rd Dept 11-20-14

 

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Waiver of Right to Appeal Invalid Despite the Signing of a Written Waiver

The Second Department determined defendant’s waiver of his right to appeal was not valid because the right was not adequately explained and because there was no indication that the written waiver signed by the defendant was translated for him:

…[T]he record does not reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal … . The Supreme Court’s statements at the plea allocution improperly suggested that waiving the right to appeal was mandatory rather than a right which the defendant was being asked to voluntarily relinquish, and the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal … . Moreover, there is no indication in the record that the defendant understood the distinction between the right to appeal and other trial rights that are forfeited incident to a plea of guilty … . Although the defendant did sign a written waiver of his right to appeal, nothing in the record demonstrates that the document was translated for the defendant, who required the use of a Spanish language interpreter, before it was presented to him for signature … . In any event, the court’s terse colloquy at the plea allocution, which included the language suggesting that the waiver of the right to appeal was mandatory, failed to sufficiently advise the defendant of the nature of the right to appeal … . People v Guarchaj, 2014 NY Slip Op 08044, 2nd Dept 11-19-14

 

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Judge Effectively Rescinded the Initial Declaration of a Mistrial and Left the Decision Whether to Declare a Mistrial Up to the Defendant—Because the Defendant Ultimately Agreed to the Mistrial the Double Jeopardy Prohibition Was Not Triggered

The Court of Appeals determined that, although the trial judge initially declared a mistrial without defense counsel’s consent, the judge effectively rescinded the declaration by leaving it up to the defendant to decide whether a mistrial should be declared (defense counsel had objected to the way the judge was handling the trial).  Because the mistrial was ultimately agreed to by the defendant, a second trial was not precluded by the double jeopardy prohibition:

Until the jury is discharged, a court may rescind its previous declaration of mistrial (see People v Dawkins, 82 NY2d 226 [1993]). Defendant argues that in this case the trial judge never formally rescinded his initial mistrial ruling, and so whether or not she indicated her consent after that ruling is irrelevant. Certainly, the judge never expressly said “I rescind my order declaring a mistrial.” But we have never required any particular language to be used to retract a prior order. Here, the record makes clear that the trial judge was leaving the mistrial decision up to defendant. Because she decided to “go with a mistrial,” and thus consented to it, her double jeopardy claim fails. Matter of Gorman v Rice, 2014 NY Slip Op 07923, CtApp 11-18-14

 

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