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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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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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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

 

Sentence Reduced In Interest of Justice Despite Extensive Criminal Record

The Second Department, over a partial dissent, reduced the defendant’s sentence in the interest of justice based upon the facts of the offense, the defendant’s mental health issues, and the defendant’s efforts to improve his life:

The evidence at trial showed that, although the defendant entered his neighbor’s home unlawfully with the intent to commit a crime therein, no items were taken from the home, and no one was threatened or physically harmed.

… [T]he defendant has been diagnosed with bipolar disorder, a mental illness that runs in his family, and has also been diagnosed with major depression and has struggled with drug addiction. Following the defendant’s release from prison in 2009, he made positive strides in his life by participating in outpatient mental health counseling and taking medication, and enrolling in college full-time. He performed well academically, was working toward a bachelor’s degree, and had plans to pursue a master’s degree, and a career in youth counseling. However, the defendant experienced a setback in July 2011, one month before the instant offenses were committed, when his 28-year-old son was shot and killed, causing his depression to worsen. The instant offenses were committed during this period of his life. Nonetheless, the defendant had been living in the community for two years without incident before committing the instant offenses. While we agree with our dissenting colleague that the defendant’s criminal history is extensive, such criminal history is adequately taken into consideration by the Penal Law provisions providing increased sentences for persistent violent felony offenders (see Penal Law § 70.08[2], [3]). Based on the circumstances of the defendant’s commission of burglary in the second degree and his efforts at rehabilitation, a sentence of imprisonment longer than the statutory minimum of 16 years to life is unduly harsh and excessive, and we modify the sentence accordingly … . People v Howard, 2014 NY Slip Op 06105, 2nd Dept 9-10-14

 

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Justice Should Have Recused Himself—Law Clerk Married to Hearing Witness

The Second Department determined the justice who presided over a suppression hearing should have recused himself because his law clerk was married to the detective who testified at the hearing:

Here, the hearing Justice was the trier of fact, and the credibility of Detective William Wilkerson, who was married to the Justice’s law clerk, was a critical issue at the hearing. The marital relationship between Detective Wilkerson and the hearing Justice’s law clerk created, at a minimum, the appearance that the hearing Justice could not be impartial in assessing Detective Wilkerson’s credibility. While it is true that, unlike a lay jury, a judge is “uniquely capable . . . of making an objective determination based upon appropriate legal criteria, despite awareness of facts which cannot properly be relied upon in making the decision” …, “judges are human,” and not immune from “psychological” and unconscious influences … . Under these circumstances, the hearing Justice should have recused himself “in a special effort to maintain the appearance of impartiality” … . People v Suazo, 2014 NY Slip Op 06114, 2nd Dept 9-10-14

 

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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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Probation Department’s Unauthorized Taking of DNA Evidence Required Suppression/Inevitable Discovery Doctrine Applied to Deny Suppression of Identification Evidence and Defendant’s Statement

The Second Department determined the unauthorized taking of a buccal swap from a probationer for DNA testing required suppression of the DNA evidence.  The fact that the defendant was on probation did not strip the defendant of his Fourth Amendment rights.  However, because another DNA sample had been properly taken from the defendant a few days before, the identification evidence and defendant’s statement should not have been suppressed pursuant to the inevitable discovery doctrine:

The hearing court properly suppressed DNA evidence as tainted since the Nassau County Probation Department (hereinafter the Probation Department) took an unauthorized buccal swab from the defendant, which was a bodily intrusion subject to the constraints of the Fourth Amendment … . * * * The defendant’s status as a probationer did not “justify departures from the customary constitutional standards that apply in other settings” …, where, as here, it is undisputed that the provision of a DNA sample was not a condition of the defendant’s probation under any statutory or judicial authority. Moreover, since the DNA sample taken from the defendant implicated his constitutional rights, we reject the People’s argument that the Probation Department, in taking the unauthorized buccal swab, only committed a statutory violation that did not warrant suppression of evidence … .

The record reveals that an authorized DNA sample was taken from the defendant in connection with another, unrelated charge only days before he was arrested on the charges at issue on this appeal. Since another DNA sample had been taken from the defendant prior to his arrest, the People established a very high degree of probability that the evidence in question would have been obtained independently of the tainted source during the normal course of police investigation … . Accordingly, the hearing court should not have suppressed the identification evidence and the defendant’s statement to the police.  People v Adams, 2014 NY Slip Op 06098, 2nd Dept 9-10-14

 

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Guilty Plea Precluded Litigation on Liability

The Second Department noted that a guilty plea in a criminal matter (in which plaintiff was injured by the defendant) can bar the convicted defendant from litigating liability in the related civil matter under the doctrine of collateral estoppel:

…[L]iability was established in accordance with the legal principle that ” [w]here a criminal conviction is based upon facts identical to those in issue in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from litigating the issue of . . . liability'” … . Abdelzaher v Sallustio, 2014 NY Slip Op 06040, 2nd Dept 9-10-14

 

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