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People v Rudolph (Requiring Sentencing Court to Consider Youthful Offender Status for All Eligible Defendants) Applied Retroactively to 2008 Conviction (on Direct Appeal)

The Third Department determined the ruling in People v Rudolph (21 NY3d 497 [2013]), requiring that courts always consider youthful offender status for eligible defendants, applied retroactively to a 2008 conviction by guilty plea in which the defendant agreed he would not receive youthful offender status:

In People v Rudolph (supra), the Court of Appeals, overruling precedent, held that the statutory command in CPL 720.20 (1) that the sentencing court address youthful offender status when a defendant is eligible for such status “cannot be dispensed with, even where defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request” (id. at 499). When addressing such status, the sentencing court should set forth factors considered in its determination …, particularly when denying youthful offender status … .

The People * * * assert that, since the sentence was consistent with prevailing precedent when imposed …., the holding in Rudolph should not be applied retroactively. However, notwithstanding the lengthy delay in perfecting this appeal, this case is before us on direct appeal — not a collateral attack — and the law as it now exists controls… . People v Calkins, 2014 NY Slip Op 04977, 3rd Dept 7-3-14

 

Denial of For Cause Challenge to Juror Required Reversal

The Third Department determined the trial court erred in denying defendant’s “for cause” challenge to a juror:

“Prospective jurors who make statements that cast serious doubt on their ability to render an impartial verdict, and who have given less-than-unequivocal assurances of impartiality, must be excused” … . Here, during jury selection, juror No. 153 stated that he was “very uncomfortable” about the alleged use of a firearm during the commission of the charged crimes. When asked by defense counsel if his stated discomfort was something that would affect his ability to keep an open mind, juror No. 153 responded, “It might. I can’t say for sure what it is, but it’s a concern to me.”

After questioning of this panel had concluded, and out of the presence of the prospective jurors, defense counsel challenged juror No. 153 for cause. County Court, stating that defense counsel failed to ask any follow-up questions of juror No. 153 at the time the juror made the subject statements in order to make out an appropriate foundation for cause, denied the challenge. Having heard the statements by juror No. 153, County Court should have either granted the challenge for cause or conducted a further inquiry of that juror and obtained express, unequivocal assurances on the record of his impartiality … . People v Young, 2014 NY Slip Op 04975, 3rd Dept 7-3-14

 

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Conditioning Plea Offer Upon Withdrawal of a Constitutional Speedy Trial Motion Is an Inherently Coercive Mode of Proceedings Error

The Third Department determined that the People’s conditioning of a plea bargain on the defendant’s withdrawal of his constitutional speedy trial motion was a mode of proceedings error requiring reversal:

…[T]he Court of Appeals has recently cited to People v Blakley (34 NY2d at 315) as an example of the “mode of proceedings” exception to the preservation rule (People v Hanley, 20 NY3d 601, 604, 605 n 2 [2013]). In that case, the Court held that conditioning a plea on a waiver of a constitutional speedy trial claim is “inherently coercive” (People v Blakley, 34 NY2d at 313). The narrow mode of proceedings exception speaks to fundamental flaws that implicate “rights of a constitutional dimension that go to the very heart of the process” … . Where, as in Blakley, the People condition a plea offer on the defendant’s waiver of his or her constitutional speedy trial claim, the integrity of the judicial process has been undermined … .

Here, the People expressly conditioned the plea offer on defendant’s withdrawal of his constitutional speedy trial motion, while the hearing on this issue was still pending. To make matters worse, the offer was set to expire as soon as the hearing resumed … . This is the type of prosecutorial bartering expressly prohibited as “inherently coercive” in People v Blakley (34 NY2d at 313). A trial court has a core obligation to recognize and prevent such an unfair tactic, but here the court simply reiterated the impermissible condition of the plea and waiver … . People v Wright, 2014 NY Slip Op 04976, 3rd Dept 7-3-14

 

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Prosecutor’s Remarks In Summation Required Reversal

The Third Department determined the prosecutor’s remarks in summation required reversal:

Counsel is afforded wide latitude in advocating for his or her case during summation, but “[t]here are certain well-defined limits” that may not be exceeded … . Here, the prosecutor strayed beyond those parameters by, among other things, repeatedly making remarks that impermissibly shifted the burden of proof from the People to defendant … . He described defense counsel’s summation as “throwing mud,” which he characterized as something done by people who “don’t have a reasonable excuse as to crimes that they’ve committed” — thus not only denigrating the theory of defense, but suggesting that it was defendant’s affirmative burden to present such an excuse. He then averred that nothing in the trial record established that defendant had not committed the alleged acts. * * * He stated that, in order to find defendant not guilty, jurors would have to believe that police officers were engaged in a scheme whereby they staged audio recordings of the controlled buys and planted evidence on defendant to frame him, referencing a comedy skit in which police purportedly got away with mistreating people “by sprinkling drugs on them.” * * *

The prosecutor also repeatedly and improperly expressed his personal opinion in an effort to vouch for the credibility of witnesses …. . When discussing a forensic chemist’s testimony that the substances allegedly sold and possessed by defendant were heroin, the prosecutor stated that the issue was “done” and that it was “a closed case.” He repeatedly described his witnesses as honest or declared that they had told the truth. He told the jury to take the male CI’s word for what had happened during one of the controlled buys, adding that he “believe[d] that [the male CI] was more than credible.”* * *  People v Casanova, 2014 NY Slip Op 04978, 3rd Dept 7-3-14

 

Court Should Not Have Imposed a Greater Sentence Based Solely on Bare Fact Defendant Had Been Arrested Since His Guilty Plea

The Fourth Department determined County Court erred when it enhanced defendant’s sentence based solely on the indication in the presentence report that he had been arrested after his guilty plea:

On the day of sentencing, the court noted that, two weeks after defendant’s plea of guilty, defendant was arrested in the Town of Allegany and charged with a violation and a class A misdemeanor. The court thereafter imposed on defendant a term of imprisonment, rather than one of the lesser alternatives it had previously mentioned, based upon defendant’s postplea arrest. The record is clear that the court based its determination to impose a term of imprisonment solely on the information contained in the presentence report that defendant had been arrested and charged with the violation and misdemeanor. Notably, in response to the court’s inquiry concerning “what was happening” with that matter, defense counsel responded that he did not represent defendant on the matter and that it was still pending in local court. Thus, we conclude that, in imposing a term of imprisonment, the court erred in relying on the ” mere fact’ ” that defendant had been arrested …, and that it failed to “carry out an inquiry of sufficient depth to satisfy itself that there was a legitimate basis” for defendant’s arrest … . People v Kolata, 2014 NY Slip Op 05101, 4th Dept 7-3-14

 

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Evidence which Should Have Been Presented In the People’s Direct Case Should Not Have Been Allowed in Rebuttal

The Second Department determined the trial court erred in allowing the People to present more evidence after the defense rested. The charges were based upon allegations the defendant caused injuries to her baby by shaking the baby.  The People’s evidence demonstrated the defendant denied knowing that shaking the baby could cause injury.  The People were allowed to present evidence, after the defense had rested, that a nurse had explained the dangers of shaking to the defendant:

A court has the discretion to permit a party to present evidence in rebuttal, which, more properly, should have been presented in that party’s original case (see CPL 260.30[7]…). The Court of Appeals has approved the exercise of this discretion where the evidence proffered relates to an element of the offense which is “simple to prove and not seriously contested, and reopening the case does not unduly prejudice the defense” … .

Here, the missing element of the People’s case was not a simple, uncontested fact, but, instead, was the mens rea of the subject offense … . Indeed, the People’s own evidence established that the defendant denied knowing that her actions could result in injury to the child. Furthermore, the parties’ expert witnesses ” hotly contested'” … whether shaking could cause the type of injuries at issue and, if so, how much force would be necessary to cause such injuries, and there was no evidence that the defendant knew of the point when rocking or shaking could become potentially injurious.

Because this case does not fit within “the narrow circumstances where . . . the missing element is simple to prove and not seriously contested, and reopening the case does not unduly prejudice the defense” …, the Supreme Court improvidently exercised its discretion in granting the People’s application to present the nurse’s testimony in rebuttal. Without this testimony, the People’s evidence was legally insufficient to establish the mens rea element of endangering the welfare of a child beyond a reasonable doubt … . People v Robinson, 2014 NY Slip Op 04970, 2nd Dept 7-2-2014

 

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Court’s Refusal to Allow Defendant to Inspect His Laptop Computer, Evidence from Which Was Central to the People’s Case, Was Reversible Error

The Second Department determined that denial of defendant’s request to inspect his laptop computer, from which evidence was extracted to prosecute him, was reversible error:

The trial court erred in denying the defendant’s motion to compel the People to provide the defendant with the opportunity to inspect the laptop computer that was seized from his home and for an adjournment of the trial, in order to permit the defense to examine that computer (see CPL 240.20[1][f]…). The defendant was entitled to inspect the laptop computer, pursuant to CPL 240.20(1)(f), and the defendant made a timely demand to inspect the laptop computer (see CPL 240.20[1][f]…).

Further, the laptop computer was central to the People’s case against the defendant; the People’s expert witness testified, at length, as to his examination of the laptop computer, the evidence that was extracted from that computer, and the basis for his conclusion that such evidence was accessed from or uploaded to the internet by the defendant. Additionally, the prosecution provided no reason for its failure to provide the computer to the defense. Under these circumstances, this error warrants reversal … . People v Naran, 2014 NY Slip Op 04969, 2nd Dept 7-2-14

 

Defendant Not Afforded Right to Testify Before Grand Jury—Indictment Dismissed

The Second Department determined the indictment must be dismissed (without prejudice) because the defendant was not afforded his right to testify before the grand jury:

CPL 190.50(5) provides that a defendant has a right to appear and testify before a grand jury if he or she serves written notice of his or her intent to do so upon the District Attorney before an indictment is filed. “[T]he opportunity to testify prior to any Grand Jury vote is qualitatively different from and more advantageous than the opportunity to testify . . . after the Grand Jury ha[s] committed itself to a vote based on the prosecution’s ex parte presentment of evidence” … . Thus, a defendant who provides timely notice “prior to the prosecution’s presentment of evidence and prior to the Grand Jury vote on an indictment [is] entitled to testify before the vote” … .

Where, as here, the defendant has been arraigned upon an undisposed felony complaint, the People must notify the defendant of the grand jury proceeding and accord him or her a reasonable time to appear (see CPL 190.50[5][a]…). Here, the People’s notice pursuant to CPL 190.50 indicated that the defendant was “scheduled to testify” before the grand jury on June 8, 2010, and that his testimony was required to have been given before 5:00 p.m. on that date. The record reveals that the defendant provided the People with written notice of his intent to testify before the grand jury pursuant to CPL 190.50, at the latest, by 3:37 p.m. on June 7, 2010. Thus, the defendant provided the People with the requisite notice more than 24 hours in advance of his proposed appearance. Under these circumstances, the defendant was entitled to testify prior to the grand jury’s vote. People v Ellison, 2014 NY Slip Op 04957, 2nd Dept 7-2-14

 

Court’s Failure to Conduct an Inquiry After Learning of a Juror’s Comments During Trial Indicating Her Lack of Impartiality Required Reversal

The Second Department determined that the trial judge had been made aware of information raising the possibility that a juror would not be impartial and erred in not conducting an inquiry:

The Court of Appeals, in People v Buford (69 NY2d 290, 299), set forth the basic framework to be followed when conduct occurs during a trial that may be the basis for disqualifying a juror. The court should conduct an in camera inquiry of the juror, in which counsel should be permitted to participate if they desire, and evaluate the nature and importance of the information and its impact on the case … . In addition, the “trial court’s reasons for its ruling should be placed on the record . . . [and] the court may not speculate as to possible partiality of the juror” … . Although the Court of Appeals acknowledged that an “in camera inquiry may not be necessary in the unusual case . . . where the court, the attorneys, and defendant all agree that there is no possibility that the juror’s impartiality could be affected and that there is no reason to question the juror” (People v Buford, 69 NY2d 299 n 4), here, defense counsel wanted the juror to be questioned.

The Supreme Court erred in failing to conduct an in camera “probing and tactful inquiry” (id. at 299) of juror number seven, during the trial, when it was alleged that he had stated “the evidence speaks for itself or they got themsel[ves] into this situation” …, and subsequently, after deliberations had commenced, when it was alleged that juror number seven had engaged in flirtatious conduct with someone connected to the defendant as well as someone connected to the codefendant … . Since the court’s general inquiry of the jurors with respect to the first incident failed to meet the requirements of Buford …, and no inquiry at all was made with respect to the later incidents …, it is unknown whether the juror held an opinion that affected his ability to be impartial … . Such an error is not subject to harmless error analysis and, thus, the conviction must be reversed … . People v Henry, 2014 NY Slip Op 04962, 2nd Dept 7-2-14

 

Grossly Negligent and Reckless Driving Did Not Support Conviction for Depraved Indifference Murder

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissent, determined that the actions of the defendant, who killed a pedestrian during a police chase, did not meet the criteria for depraved indifference murder.  Although the defendant drove in a grossly negligent and reckless manner, there was evidence he took measures to avoid injuries to others and therefore was not indifferent to the effects of his actions:

A person is guilty of depraved indifference murder when, “[u]nder circumstances evincing a depraved indifference to human life [such person] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law § 125.25 [2]). Depraved indifference is a culpable mental state which “is best understood as an utter disregard for the value of human life” … . Thus, “a depraved and utterly indifferent actor is someone who does not care if another is injured or killed” (id. [internal quotation marks and citation omitted]). Due to the wanton nature of this mens rea, “depraved indifference murder properly applies only to a small, and finite, category of cases where the conduct is at least as morally reprehensible as intentional murder” … .

A defendant who knowingly pursues risky behavior that endangers others does not necessarily evince depraved indifference by engaging in that conduct. As we have explained, “[a] person who is depravedly indifferent is not just willing to take a grossly unreasonable risk to human life — that person does not care how the risk turns out” … . “The element of depraved indifference to human life comprises both depravity and indifference, and has meaning independent of recklessness and the gravity of the risk created” … . In short, the mens rea of depraved indifference will rarely be established by risky behavior alone. People v Maldonado, 2014 NY Slip Op 04878, CtApp 7-1-14

 

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