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Court’s Failure to Inquire to Ensure Guilty Plea Was Knowing and Voluntary Required Vacation of the Plea (In the Absence of Preservation)

The Fourth Department determined Supreme Court’s failure make an inquiry to determine whether defendant’s guilty plea was knowing and voluntary required reversal (in absence of preservation).  The defendant stated during the plea colloquy that the weapon he used was a BB gun, not a handgun.  Defense counsel explicitly waived any related affirmative defense:

At the outset of the plea colloquy, defense counsel stated that, although defendant told the police that he used a .45 caliber handgun in the robbery, the weapon he had used was actually a BB gun. Defense counsel further stated, however, that defendant would waive the affirmative defense set forth in Penal Law § 160.15 (4), which applies where the weapon used in the robbery “was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged.” During the ensuing plea colloquy, defendant stated that the gun he had used was a BB gun that looked like a revolver, not a .45 caliber handgun as he had told the police. At the end of the plea colloquy, defense counsel, in response to concerns expressed by the prosecutor, again stated that defendant was waiving the affirmative defense set forth in section 160.15 (4). The court then accepted defendant’s plea.

Although “no catechism is required in connection with the acceptance of a plea” …, it is well established that, “where the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea, . . . the trial court has a duty to inquire further to ensure that [the] defendant’s guilty plea is knowing and voluntary” … . “Where the court fails in this duty and accepts the plea without further inquiry, the defendant may challenge the sufficiency of the allocution on direct appeal,” despite having failed to make that challenge in a “postallocution motion” directed to the plea court … . People v Dukes, 2014 NY Slip Op 06454, 4th Dept 9-26-14

 

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Successive Photo Arrays Okay/Statement Made Voluntarily After Refusing to Waive Miranda Rights Admissible for Impeachment Purposes

The Fourth Department dismissed an attempted murder charge because “the jury may have convicted defendant of an unindicted [attempted murder], resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges”… . [The indictment charged one shooting but proof at trial alleged two shootings which were considered by the jury.] In the course of the decision, which also discussed the criteria for severance of defendants and the admissibility for impeachment purposes of a statement made voluntarily after a refusal to waive Miranda rights, the Fourth Department determined that the submission of multiple photo arrays with the defendant in them did not require suppression of the identification evidence:

Contrary to defendant’s … contention, Supreme Court did not err in refusing to suppress identification evidence. ” Multiple photo identification procedures are not inherently suggestive’ ” … . “While the inclusion of a single suspect’s photograph in successive arrays is not a practice to be encouraged, it does not per se invalidate the identification procedures’ ” … . Here, although there was not a significant lapse of time between the presentation of the arrays …, the record establishes that different photographs of defendant were used, that the photographs of defendant appeared in a different location in each photo array … .

We … conclude that the court did not err in determining that defendant’s statements to the police during a brief exchange, made by defendant after he refused to waive his Miranda rights, were voluntary and thus were admissible for impeachment purposes … . Here, the People met their initial “burden at the Huntley hearing of establishing that defendant’s . . . statements were not the product of improper police conduct’ ” … , and “[d]efendant presented no bona fide factual predicate in support of his conclusory speculation that his statement[s were] coerced”…. .  People v Wilson, 2014 NY Slip Op 06394, 4th Dept 9-26-14

 

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Explicit Verbal Waiver of Miranda Rights Not Required

The Fourth Department determined that the absence of an express waiver of defendant’s Miranda rights did not require suppression of his statement:

…[D]efendant contends that the evidence at the Huntley hearing demonstrates that he did not waive his Miranda rights, but that he asked the arresting officer “[w]hat’s going on” after the arresting officer read him the Miranda warnings. Contrary to defendant’s contention, the court properly refused to suppress those statements. It is well settled that “an explicit verbal waiver is not required; an implicit waiver may suffice and may be inferred from the circumstances” … . Thus, “[w]here, as here, a defendant has been advised of his Miranda rights and within minutes thereafter willingly answers questions during interrogation, no other indication prior to the commencement of interrogation is necessary to support a conclusion that the defendant implicitly waived those rights’ ” … . People v Jones, 2014 NY Slip Op 06452, 4th Dept 9-26-14

 

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Plea Colloquy of Co-Defendant Was Inadmissible Hearsay—Court’s Granting of Defendant’s Request to Have the Colloquy Read to the Jury Over Defense Counsel’s Objection Deprived Defendant of His Right To Counsel

The First Department reversed defendant’s conviction because the court granted the defendant’s request to read co-defendant’s plea colloquy to the jury over defense counsel’s objection.  The colloquy was inadmissible hearsay.  Defense counsel alone can determine what evidence is introduced on defendant’s behalf:

Defendant’s constitutional right of confrontation was violated when the court read the transcript of the codefendant’s guilty plea allocution to the jury. The codefendant’s statements by which she inculpated defendant, were testimonial hearsay by a nontestifying declarant, whom defendant did not have a prior opportunity to cross-examine (see Crawford v Washington, 541 US 36 [2004]).

The People’s argument that the Confrontation Clause was inapplicable because defendant himself introduced the evidence is unavailing. Although defendant personally requested the introduction of the evidence, he was not appearing pro se. Defendant was represented by counsel throughout the case, and there was no form of hybrid representation. The decision to introduce evidence was not a fundamental decision reserved to defendant, but a strategic or tactical decision for his attorney … . Thus, defendant was deprived of his right to counsel when the court admitted the evidence solely based on his own request, over his attorney’s vigorous and consistent opposition … . People v Lee, 2014 NY Slip Op 06374, 1st Dept 9-25-14

 

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No Manifest Necessity for Declaring a Mistrial Over Defendant’s Objection–Double Jeopardy Barred Retrial

The Second Department determined there was no “manifest necessity” for the trial court’s declaring a mistrial (over defendant’s objection) and therefore retrial was precluded.  The jury informed the court it had reached a verdict one count but could not reach a verdict on the remaining two counts. The defendant asked the court to accept a partial verdict and the court refused.  Subsequently a juror asked to be excused due to an emergency.  The defendant, at the court’s urging, agreed to excuse the juror and renewed his request for a partial verdict.  The request was again refused and the defendant did not agree to the substitution of an alternate juror.  The court, on its own motion, declared a mistrial. When the court ruled defendant could be retried on the two counts on which the jury could not agree, defendant brought an application for prohibition:

Prohibition is the traditional remedy where a defendant seeks protection against double jeopardy … and the writ lies in this case. * * *

When a mistrial is granted over the defendant’s objection or without the defendant’s consent, double jeopardy will, as a general rule, bar retrial … . However, the right to have one’s case decided by the first empaneled jury is not absolute, and a mistrial granted as the product of manifest necessity will not bar a retrial … . ” Manifest necessity’ means a high degree of necessity’; the reasons underlying the grant of a mistrial must be necessitous, actual and substantial'” … . Even if the reasons for declaring a mistrial are deemed actual and substantial, the court must explore all appropriate alternatives prior to declaring a mistrial … .

Here, the trial court failed to explore all appropriate alternatives before declaring, on its own motion, a mistrial … . Accordingly, there was no manifest necessity for the declaration of a mistrial and, thus, retrial on counts two and three of the indictment is precluded.  Matter of Gentil v Margulis, 2014 NY Slip Op 06314, 2nd Dept 9-24-14

 

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Pulling Defendant from Inside His Home for Warrantless Arrest Violated the Fourth Amendment

The Second Department determined that a new trial was required because defendant’s statement should have been suppressed.  The police pulled the defendant from inside his home to arrest him without a warrant, a violation of the Fourth Amendment.  The Second Department noted, however, that the trial court did not err in refusing the suppress evidence of a post-arrest lineup identification:

Here, the police knocked on the defendant’s door at approximately 6:50 a.m. When the defendant answered the door he appeared to be “half asleep,” and was naked from the waist down. He only partially opened the door, was never in full view of the police, and never crossed the threshold of his apartment. When the police directed the defendant to step fully into view, the defendant instead attempted to shut the door, trapping a detective’s arm as the detective tried to keep the door from closing. After law enforcement officials successfully pushed the door open, they pulled the defendant from the area behind the door into the public hallway, where he was then arrested.

Under the discrete circumstances of this case, where the police officers crossed the threshold into the defendant’s apartment, pulled him into the hallway, and arrested him without a warrant, the defendant’s Fourth Amendment rights were violated … . People v Riffas, 2014 NY Slip Op 06333, 2nd Dept 9-24-14

 

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Police Had “Reasonable Suspicion” Justifying Only Forcible Detention of the Defendant to Conduct a Brief Investigation—Arrest of the Defendant in the Absence of Probable Cause Required Suppression of Defendant’s Statement

The Second Department, over a dissent, determined that defendant’s statement should have been suppressed because the police arrested him in the absence of probable cause.  Two persons for whom the police had probable cause to arrest were in the backseat of a legally parked vehicle.  Defendant was in the driver’s seat, fumbling with the ignition keys when the police first saw him.  The police pulled him from the vehicle and arrested him.  The Second Department found the arrest premature. Because of the presence of the two persons for whom the police had probable cause to arrest, there was only a reasonable suspicion of the defendant’s involvement which justified only forcible detention for a brief investigation:

The hearing testimony established that at approximately 8:00 a.m. on June 10, 2009, the police received a radio transmission regarding a robbery in progress, perpetrated by two black males, at a Queens residence. The police activated their sirens and lights and went to the specified house, arriving within two minutes of receiving the transmission. When the police arrived, two of the complainants, still gagged and partially bound, were on the porch of the house. The complainants used gestures to direct the officers’ attention to two men, Myers and Santos, who were walking on the sidewalk, about four houses away. Myers and Santos, who were the only civilians on the block, started running, and the officers chased them. During the chase, Santos discarded an object, which the police later recovered and found to be a gun. When Myers and Santos turned a corner several blocks from the complainants’ house, the officers lost sight of them briefly. When one of the officers turned the corner, he did not see any people, but saw the rear passenger door on a sport utility vehicle being closed. The vehicle was legally parked and the engine was off. The officer ran to the vehicle and peered inside through the tinted windows. After spotting Myers and Santos in the rear passenger seat, the officer “punched” the driver’s side window to alert the driver not to drive away. The officer pulled the driver’s door open and saw the defendant in the driver’s seat, “fumbling” with the keys and trying to put them in the ignition. The officer pulled the defendant out of the car, placed him face-down on the ground, and handcuffed him. Eventually, the defendant was placed in a police car. People v Delvillartron, 2014 NY Slip Op 06327, 2nd Dept 9-24-14

 

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Record Did Not Demonstrate Defendant Understood His Miranda Rights—Statement Should Have Been Suppressed

The Second Department determined defendant’s statement should have been suppressed.  The People failed to demonstrate defendant understood his right to remain silent:

Contrary to the hearing court’s determination, the evidence adduced at the suppression hearing was insufficient to establish that the defendant’s statements to law enforcement officials were made after he knowingly, voluntarily, and intelligently waived his Miranda rights (see Miranda v Arizona, 384 US 436). Although the defendant’s refusal to sign the Miranda card did not, in itself, preclude the finding of a valid waiver …, the record was devoid of any indication that the defendant clearly understood his Miranda rights as read to him … . People v Barnes, 2014 NY Slip Op 06209, 2nd Dept 9-17-14

 

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Motion to Vacate Convictions Granted—People Failed to Provide “Brady” Material In Time for the Defense to Make Meaningful Use of It

The Second Department, pursuant to a CPL 440 motion, vacated the defendants’ convictions because of the People’s failure to turn over documents which would have aided the defense (a “Brady” violation).  Although the documents were provided at the time of jury selection, they were mixed in with a large volume of other documents which effectively deprived the defense of notice of their existence.  There was a “reasonable probability” the documents, had they been used at trial to impeach police witnesses, would have changed the outcome of the trial:

The People have an obligation to disclose exculpatory evidence, known as Brady material, in their possession which is favorable to the defendant and material to his or her guilt or innocence (see Brady v Maryland, 373 US 83, 87…). Such evidence is to be produced regardless of whether a defendant requests the material … . The prosecutor’s duty to exchange Brady material extends to the disclosure of evidence that can be used to impeach the credibility of a witness for the People whose testimony may be determinative of the defendant’s guilt … . Such material is to be turned over to the defendant in time for him or her to use it in a meaningful fashion during cross-examination or as evidence during his or her own case … .

In order to establish a Brady violation, a defendant must prove: (1) the evidence at issue is favorable to him or her; (2) the evidence was suppressed by the State, either willfully or inadvertently; and (3) prejudice ensued because the suppressed evidence was material … . As to the element of materiality, where there was only a general request by the defendant at the time of trial for exculpatory material, evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different … . Here, the manner in which the prosecution turned over the documents, during the course of jury selection, deprived the defendants of a meaningful opportunity to employ that evidence during their cross-examination of the prosecution’s witnesses … . People v Wagstaffe, 2014 NY Slip Op 06217, 2nd Dept 9-17-14

 

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Inadequate Waivers of Appeal Addressed In Depth—Detailed Advice to Judges Re: How to Obtain a Valid Waiver—Written Waiver Found Inadequate Here Because the Record Was Silent About Defendant’s Understanding Of It

The Second Department, in an important full-fledged opinion by Justice Skelos, broadly addressed the problem of inadequate waivers of appeal, giving specific advice to judges about how to obtain a valid waiver.  In the case before the court, the defendant had signed a written waiver.  But because the record was otherwise silent about the defendant’s understanding of the waiver, it was deemed invalid.  The opinion is too comprehensive and detailed to be fairly summarized here:

Generally, … a thorough explanation [of the waiver by the court]should include an advisement that, while a defendant ordinarily retains the right to appeal even after he or she pleads guilty, the defendant is being asked, as a condition of the plea agreement, to waive that right. Ideally, a defendant should then receive an explanation of the nature of the right to appeal, which essentially advises that this right entails the opportunity to argue, before a higher court, any issues pertaining to the defendant’s conviction and sentence and to have that higher court decide whether the conviction or sentence should be set aside based upon any of those issues. The defendant should also be told that appellate counsel will be appointed in the event that he or she were indigent. The trial courts should then explain the consequences of waiving the right to appeal, i.e., that the conviction and sentence will not receive any further review, and shall be final. The trial courts must be sure to obtain, on the record, an affirmative response from the defendant that he or she understands the rights as explained, that the defendant is giving up those rights, and that the defendant is doing so voluntarily after discussing same with counsel. The mere explanation of the right to appeal and the consequences of a waiver without an affirmative response from the defendant is insufficient to effect a valid waiver … . We are mindful of the time demands on our trial courts, which are burdened with heavy calendars, and recognize that such a thorough colloquy is not necessary in every case to secure a valid waiver of the right to appeal. Nevertheless, the benefit to be derived therefrom by defendants, who are asked to waive a fundamental right, by the People, who have bargained for a waiver of the defendant’s right to appeal, and by appellate courts faced with determining the validity of such waivers, outweighs any burden imposed on the trial courts by a slight increase in the length of the plea proceedings.  People v Brown, 2014 NY Slip Op 06101, 2nd Dept 9-10-14

 

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