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Failure to Move to Sever Unrelated Counts of Indictment Constituted Ineffective Assistance of Counsel

The Second Department determined defense counsel’s failure to move to sever unrelated counts of the indictment constituted ineffective assistance of counsel:

In this case, based solely on the complainant’s identification, the defendant and his codefendant were charged with robbery in the first degree and robbery in the second degree in connection with a robbery that occurred on November 6, 2005. The same indictment also separately charged the defendant with four drug offenses and resisting arrest, stemming from his arrest at his mother’s home on January 16, 2006, despite the fact that the drug and resisting arrest charges had no connection to the November 6, 2005, robbery. Defense counsel failed to make an on-the-record pretrial motion to sever the robbery charges from the other charges and did not raise the issue at trial, and the defendant was tried on all counts in the indictment. * * *

As a result of defense counsel’s error, the same jury that heard evidence regarding the robbery also heard voluminous evidence concerning the defendant’s arrest and the large quantity of drugs found in his mother’s home. Consequently, the jury could have inferred that the robbery at issue was committed for a drug-related purpose, and it is probable that the improper joinder tainted the jury’s evaluation of the separate, unrelated incidents … . Under the circumstances presented here, the defendant was deprived of the effective assistance of counsel, based on defense counsel’s failure to make a proper pretrial motion to sever the charges of robbery from the drug charges. People v Hall, 2014 NY Slip Op 05802, 2nd Dept 8-13-14

 

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Decision Offers a Rare, Detailed Discussion of the Probable-Cause Analysis of a Search Warrant Application Which Included Hearsay from Confidential Informants (Analyzed Under the Aguilar-Spinelli Reliability Tests), Controlled Buys and Surveillance

In a rare, detailed analysis of the sufficiency of a search warrant application which relied on confidential informants, surveillance, controlled buys, and hearsay found sufficient under the Aguilar-Spinelli tests, the Fourth Department determined the motion to suppress was properly denied.  The decision is notable for the depth of discussion and the full range of issues involved in the analysis of a search warrant application. People v Myhand, 2014 NY Slip Op 05742, 4th Dept 8-8-14

 

In a Matter of First Impression, the Fourth Dept Determined that Criminal Records Are Eligible for Sealing Pursuant to CPL 160.58 Even If They Relate to Convictions that Predate the Statute

The Fourth Department, in a full-fledged opinion by Justice Whalen, determined that criminal records are eligible for sealing pursuant to Criminal Procedure Law 160.58 even if they related to convictions that predate the statute. People v M.E., 2014 NY Slip Op 05748, 4th Dept 8-8-14

 

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SORA Point Assessments Affirmed Over Two-Justice Dissent Arguing the Proof of Online Sexual Conduct Was Insufficient, the Evidence of “Grooming” the Victims Was Insufficient, and the Social Immaturity of the Defendant Should Have Been Considered as a Mitigating Factor

The Third Department, over a two-justice dissent, determined that the points assessed by County Court in a SORA proceeding were appropriate.  The charges were based entirely upon online communication between the defendant and three underage girls.  The decision is notable for the extensive dissent which found the evidence defendant had masturbated during online communication through a webcam, and the evidence that the defendant engaged in “grooming” the victims was insufficient, and further found that certain mitigating factors, including that defendant functioned socially at the level of a young teenager, should have been considered:

FROM THE DISSENT:

Here, the record lacks clear and convincing proof of prohibited sexual conduct with the third victim referenced in the indictment — as to whom defendant pleaded guilty to endangering the welfare of a child and aggravated harassment in the second degree. During the plea allocution, defendant admitted that he had engaged in conversations of a sexual nature with this victim, and the victim testified before the grand jury that defendant had contacted her by webcam video, during which time he touched himself in the area of his genitals, over his clothing. There was no physical sexual contact between the two at any time. As defendant argues, the grand jury testimony included too little factual detail to constitute clear and convincing evidence that he was masturbating. Although this might be inferred, it was not clearly revealed; viewed objectively, the testimony demonstrates nothing more than a brief swipe of defendant’s hand in his genital region, accompanied by innuendo. Our precedent establishes a significantly higher standard of misconduct … .

We further find that the record supports defendant’s contention that he was improperly assessed 20 points under risk factor 7 because his conduct was not “directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 12 [2006]). The majority accepts County Court’s finding that defendant and the victims were not “strangers,” but that defendant had engaged in “grooming” behavior; we disagree. An example of grooming behavior provided in the guidelines is that of a scout leader who chose the position in order to gain access to his victims (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 12 [2006]). As defendant argues, the record does not establish this type of calculated behavior on his part, nor was there a showing of emotional manipulation, undue influence or other customary indicia of grooming conduct. People v Izzo, 2014 NY 05679, 3rd Dept 8-7-14

 

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Drug Treatment and Drug Testing Facilities Do Not Have a Duty to Provide the Test Results With a Disclaimer Indicating the Tests Were Done According to “Clinical,” Not “Forensic,” Standards—Here the “Clinical” Results Were Disseminated and Used In Court Proceedings

The Second Department, in a full-fledged opinion by Justice Skelos, with a concurring memorandum, determined that a substance abuse treatment facility (Daytop) and a drug testing laboratory (Bendiner) could not be liable for damages stemming from the dissemination of the results of drug tests (affecting Family Court and Drug Court proceedings).  The plaintiffs did not claim that the testing procedures were flawed or that the test results were false.  Rather, they claimed that, because the tests were done for “clinical,” not “forensic,” purposes, the results should have included a disclaimer indicating that they should not be used in court proceedings.  The Second Department refused to extend the duty owed to the plaintiffs by the defendants beyond the duty to ensure accurate test results:

Landon (91 AD3d 79, aff’d 22 NY3d 1) makes clear that there is a duty running from a drug testing laboratory to the subject of a drug test despite the lack of a contractual relationship between those parties. Further, it cannot be gainsaid that Daytop owes some duty of reasonable care to individuals it treats. The question presented here, as to both defendants, concerns the proper scope of that duty. More particularly, the question is whether the defendants’ duty of reasonable care includes the duty to label or place a disclaimer on a report, so as to indicate that the results are to be used only for clinical purposes. * * *

We conclude … that Bendiner did not have a duty to the plaintiffs to label its drug test results with a disclaimer, and that Daytop, when reporting the results to the drug treatment courts, did not have a duty to the plaintiffs to provide a disclaimer indicating that the positive test results were to be used for clinical purposes only.  Braverman v Bendiner & Schlesinger Inc, 2014 NY Slip Op 05618, 2nd Dept 8-6-14

 

Sentence for Weapons Charge Should Have Been Imposed Concurrently with the Sentence for Manslaughter—No Evidence the Possession of the Weapon Was Unrelated to the Manslaughter

The Second Department determined the sentence for the weapons charge should not run consecutively with the sentence for the manslaughter charge because there was no evidence the weapon was possessed for reasons unrelated to the manslaughter:

The Supreme Court erred in directing that the term of imprisonment imposed on the conviction of criminal possession of a weapon in the second degree with the intent to use it unlawfully against another, pursuant to Penal Law § 265.03(1)(b), was to run consecutively to the term of imprisonment imposed on the conviction of manslaughter in the first degree. The evidence adduced at trial did not demonstrate that the defendant possessed the gun with a purpose unrelated to his intent to use it against the victim (see Penal Law § 70.25[2]…). Therefore, the sentence imposed on the conviction of criminal possession of a weapon in the second degree with the intent to use it unlawfully against another, pursuant to Penal Law § 265.03(1)(b), must run concurrently with the sentence imposed on the conviction of manslaughter in the first degree. People v Fitzgerald, 2014 NY Slip Op 05649, 2nd Dept 8-6-14

 

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Closed Box Properly Seized and Searched Under the Plain View Doctrine

The Second Department determined a police officer properly seized evidence under the plain view doctrine.  The box that was seized and opened had the words “Smith & Wesson” on it:

Here, the evidence at the suppression hearing established that a police officer was lawfully present in the apartment building where the defendant resided … . The officer discovered the challenged physical evidence, a handgun and ammunition, in a gun box located in a common storage area accessible to anyone in the building. The box was not locked, and there was no indication that the defendant’s name or other personal identification, such as his apartment number, was on the box which would lead one who observed it to understand that it belonged to the defendant or a person living in his apartment … . The box was clearly marked “Smith and Wesson.” Under these circumstances, the distinctive label on the outside of the box “proclaimed [its] contents” and, as such, made it immediately apparent to the officer that the box contained a firearm …, thus authorizing the officer to seize the box without a warrant … . Furthermore, since the gun box, “by its very nature, could not support any reasonable expectation of privacy because its content could be inferred from its outward appearance” … , the officer lawfully opened the box, and discovered the handgun and ammunition inside. People v John, 2014 NY Slip Op 05653, 2nd Dept 8-6-14

 

Speedy Trial Clock Starts Running Only On the Charges Included in the Original Felony Complaint, Not On Separate and Distinct Charges Ultimately Included in the Indictment

The Second Department determined defendant’s “speedy trial” motion to dismiss certain counts of the indictment should not have been granted.  Although the speedy trial clock started to run when the felony complaint was filed for the charges in the felony complaint, it did not start to run on the new charges appearing for the first time in the indictment:

Where a defendant is charged with a felony, CPL 30.30 requires the People to be ready for trial within six months of the commencement of the criminal action (see CPL 30.30[1][a]…). A criminal action is commenced when the first accusatory instrument is filed, and “includes the filing of all further accusatory instruments directly derived from the initial one” (CPL 1.20[16][b]…). Therefore, subsequent accusatory instruments that are “directly derived” from the first instrument will relate back to the first instrument for purposes of assessing the People’s compliance with their speedy trial obligations … . The filing of a felony complaint signals the commencement of a criminal action (see CPL 1.20[1], [17]). Where, however, “the felony complaint and subsequently filed indictment allege separate and distinct criminal transactions, the speedy trial time clock commences to run upon the filing of the indictment with respect to the new charges” … . People v Sant, 2014 NY Slip Op 05658, 2nd Dept 8-6-14

 

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Grand Jury Testimony Given a Year After the Relevant Event Should Not Have Been Admitted as “Past Recollection Recorded”—New Trial Ordered

After noting that the defendant, who refused to sign a written waiver of his right to remain silent, waived the right by agreeing to speak to the police, the Second Department determined grand jury testimony, given a year after the relevant event, should not have been allowed in evidence as past recollection recorded:

“The requirements for admission of a memorandum of a past recollection are generally stated to be that the witness observed the matter recorded, the recollection was fairly fresh when recorded or adopted, the witness can presently testify that the record correctly represented his [or her] knowledge and recollection when made, and the witness lacks sufficient present recollection of the recorded information” … . In light of the one-year gap between the time the witness allegedly heard the defendant’s alleged inculpatory statements and the witness’s grand jury testimony, the People failed to establish that the witness’s recollection of the matter was “fairly fresh when recorded or adopted” during the grand jury proceeding … . People v Wilkinson, 2014 NY Slip Op 05661, 2nd Dept 8-6-14

 

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Defense Counsel’s Failure to Request that the Jury Be Charged with an Affirmative Defense to Robbery First (Weapon Was Not Capable of Being Discharged) Constituted Ineffective Assistance

The Second Department determined defense counsel’s failure to request that the jury be charged with an affirmative defense constituted ineffective assistance:

…[T]he defendant was deprived of the effective assistance of counsel, under both the federal and state constitutions, as a result of his trial counsel’s failure to request that the trial court submit to the jury the affirmative defense to robbery in the first degree that the object that appeared to be a firearm was not a loaded weapon from which a shot, capable of producing death or other serious physical injury, could be discharged (see Penal Law § 160.15[4]…). “[T]he New York State constitutional standard for the effective assistance of counsel is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case'” … . Thus, denial of a defendant’s fundamental right to counsel generally requires reversal of the conviction and a new trial… . People v Collins, 2014 NY Slip Op 05555, 2nd Dept 7-30-14

 

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