You are here: / Criminal Law

Defendant Did Not Make a Sufficient Showing to Justify Severance of Counts (Counts Related to Different Victims of Sexual Abuse)—-Nor Did the Defendant Make a Sufficient Showing to Justify a “Taint” Hearing (to Explore whether Allegations by a Child Were the Result of Suggestive Questioning)

The Third Department determined the defendant’s motion to sever the counts of the indictment, which involved different child victims of sexual abuse, was properly denied.  The court further determined the defendant’s motion for a taint hearing (to explore whether a child-victim’s allegations were the result of suggestive questioning) was properly denied:

Although charges arising out of different criminal transactions are properly joinable where, as here, “such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law” (CPL 200.20 [2] [c]…), a court nonetheless may — “in the interest of justice and for good cause shown” — exercise its discretion and order that such offenses be tried separately (CPL 200.20 [3]…). Good cause, in turn, may be established by demonstrating, among other things, that there is “[s]ubstantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense” (CPL 200.20 [3] [a]…). Simply put, defendant failed to make such a showing here. * * *

Notwithstanding the absence of “express statutory authority for a hearing to determine whether the testimony of [a] child witness[] has been tainted by suggestive interviewing techniques,” a court nonetheless may — “[u]pon a proper showing” by the defendant — direct that a pretrial taint hearing be held … . Noticeably absent from defendant’s motion papers was any indication that victim B’s mother engaged in leading or otherwise suggestive questioning of victim B regarding any inappropriate contact that she may have had with defendant. Moreover, “any suggestibility, the manner of questioning and its effects on [victim B’s] testimony could be, and was, addressed on cross-examination of [victim B and her mother]” at trial… . People v Milford, 2014 NY Slip Op 04278, 3rd Dept 6=12=14

 

, ,

Past Domestic Violence Admissible to Show Intent in Rape Case—Victim’s Statements in Hospital Report Admissible under Business Records Exception/Confrontation Clause Not Implicated Because Statements Were Not Testimonial—Victim’s Statements Shortly After the Rape Admissible as Excited Utterances

In a case where the defendant was charged with raping his ex-girlfriend, the Third Department determined past incidents of domestic violence were properly allowed in evidence to demonstrate intent, statements made by the victim (who died before trial from an unrelated cause) included in a hospital report were admissible under the business records exception to the hearsay rule, and statements made by the victim shortly after the rape were admissible as excited utterances.  With respect to the hospital records, the court wrote:

County Court properly allowed admission of statements that the victim made during her medical examination. “Hospital records fall within the business records exception to the hearsay rule as long as the information relates to diagnosis, prognosis or treatment” … . Details of the abuse, even including the perpetrator’s identity, may be relevant to diagnosis and treatment when the assault occurs within a domestic violence relationship because the medical provider must consider the victim’s safety when creating a discharge plan and gauging the patient’s psychological needs … . The physician who examined the victim testified that all of the information in the medical records was relevant to and gathered for purposes of diagnosis or treatment, and the primary purpose of the examination was to care for the patient’s health and safety, although a secondary purpose of the forensic examination was to gather evidence that could be used in the future for purposes of prosecution. Considering this information, although the victim was unavailable to testify because she died before trial (from causes unrelated to defendant’s crimes), defendant’s Confrontation Clause rights were not violated because the statements were not testimonial… . People v Pham, 2014 NY Slip Op 04276, 3rd Dept 6-12-14

 

, ,

Where It Is Possible Jurors Relied On an Illegal Ground a General Verdict Must Be Set Aside, Even If Alternative Legal Grounds Were Provided to the Jury

The Second Department determined that the inclusion on the verdict sheet of an offense that was not a designated felony under Mental Hygiene Law 10.03 (f) warranted an new trial, even though no objection was raised:

Generally, where no objection to an alleged error is advanced at trial, the objection is unpreserved for appellate review … . However, the inclusion on the verdict sheet of a crime that was not a designated felony within the meaning of Mental Hygiene Law § 10.03(f) presents such a fundamental error that the appellant’s failure to object does not bar our review of the issue in the exercise of discretion … . At trial, the State was required to establish by clear and convincing evidence that the appellant was a detained sex offender who suffered from a mental abnormality (see Mental Hygiene Law § 10.07[d]). “It is an established rule of Supreme Court jurisprudence that a general verdict of guilt must be set aside where the jurors in reaching their verdict may have relied on an illegal ground or on an alternative legal ground and there is no way of knowing which ground they chose” … . “Thus, the Supreme Court has consistently vacated general verdicts where one of the choices afforded to the jury was to find guilt on an unconstitutional theory. It has rejected the contention that the verdict should be upheld because the fact finder presumably based it on an alternative constitutional ground” … . Matter of State of New York v Todd L, 2014 NY Slip Op 04205, 2nd Dept 6-11-14

 

,

A SORA Assessment in a Child Pornography Case Can Take Into Account Whether the Depicted Children Were Strangers to the Defendant (Factor 3) and the Number of Children Depicted (Factor 7)—-The Standard of Proof for a Defendant’s Application for a Downward Departure from the SORA Guidelines is “A Preponderance of the Evidence”

In a full-fledged, detailed and extensive opinion by Judge Abdus-Salaam, over dissents, the Court of Appeals determined that factors 3 and 7 of an assessment under the Sex Offender Registration Act (SORA) applied to child pornography cases.  Factor 7 allows the assessment of points where the victim of a sex offense is a stranger to the defendant, and factor 3 allows the assessments of points based on the number of victims.  In the context of child pornography, therefore, the images of children the defendant does not know and the number of children depicted in the images, i.e., the number of victims, can be taken into account in determining a defendant's SORA score.  The Court of Appeals also settled a difference among the appellate divisions by setting “a preponderance of the evidence” as the standard for the defendant's evidence submitted in support of a downward departure from the guidelines:

Given that child pornography offenders substantially harm the mental health of abused children and, via the consumption of child pornography, encourage others to commit the hands-on sexual abuse needed to produce that material, it is difficult to credit defendants' claims that, due to their failure to personally physically abuse children, the risk of harm caused by their offenses should not be accounted for in the manner authorized by the plain language of factors 3 and 7. Although those aggravating factors may not represent the exact same risks in child pornography cases as in those involving physical contact, the presence of those factors in child pornography cases increases the offender's potential to psychologically harm a greater number of children to a greater degree. The guidelines may account for the variable risk that certain child pornography offenders who have an unusually strong compulsion to consume and distribute child pornography will provide exceptional support to an illicit trade that physically and psychologically harms children. People v Gillotti, 2014 NY Slip Op 04117, CtApp 6-10-14

 

,

Judge’s Speaking to a Juror During Deliberations, With Defense Counsel’s Permission, Outside the Presence of the Defendant and Counsel, Was a Mode of Proceedings Error Requiring Reversal

In a full-fledged opinion by Judge Abdus-Salaam, over a dissent, the Court of Appeals determined the judge's conducting a transcribed colloquy with a juror during deliberations, outside the presence of counsel and the defendant, was a mode of proceedings error requiring reversal.  Counsel were informed that a juror wished to talk to the judge and agreed that the judge could do so their absence. Counsel and the defendant were subsequently apprised of the substance of the colloquy and given the opportunity to read the transcript. Defense counsel did not raise an objection:

A defendant's fundamental constitutional right to be present at all material stages of a trial encompasses a right to be present during the court's charge, admonishments and instructions to the jury … . This “absolute and unequivocal” right is further embodied in CPL 310.30 (Mehmedi, 69 NY2d at 760; see Collins, 99 NY2d at 17).

Under CPL 310.30, when a deliberating jury requests further instruction or clarification on the law, trial evidence, or any other matter relevant to its consideration of the case, “the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant,” the court must give such information or instruction as it deems proper (CPL 310.30…). We have consistently held that a defendant's absence during non-ministerial instructions, in violation of CPL 310.30, affects the mode of proceedings prescribed by law and presents an error of law for our review — even absent an objection or where defense counsel has consented to the procedures used.  People v Rivera, 2014 NY Slip Op 04115, CtApp 6-10-14

 

, ,

Records of Criminal Proceedings Sealed Pursuant to Criminal Procedure Law 160.50 Can Be Accessed by the Commission on Judicial Misconduct Investigating the Alleged Misconduct of a Judge—The Law Surrounding the Sealing of Criminal Records Explained—Mootness Doctrine Explained

In a full-fledged opinion by Judge Rivera, the Court of Appeals determined that the Commission on Judicial Conduct is authorized under the Judiciary Law to request records of a criminal matters sealed under Criminal Procedure law 160.50 for use in its investigations.  In the course of the opinion, the court explained why the case before it could not be considered moot (the Court of Appeals can hear only “live”cases). The appellant is an attorney who had been charged, along with a judge, with crimes related to the judge's election campaign.  The Commission sought the sealed records of those criminal proceedings, which had ended in dismissal and acquittal.  The appellant opposed release of the records:

…[A]bsent “extraordinary circumstances” …, a specific grant of power …, or the existence of a legal mandate the nature of which would be impossible to fulfill without unsealing criminal records …, sealed criminal records may only be accessed by individuals and agencies specifically enumerated, and “narrowly defined” in CPL 160.50 (1) (d) … .

Given the Commission's broad powers under the Judiciary Law, specifically its authority under Judiciary Law § 42 (3) to request and receive a wide range of records and data, and its constitutional duties and obligations to ensure the integrity of the judicial system by investigating and sanctioning judicial misconduct, we conclude that the Commission may obtain documents sealed pursuant to CPL 160.50. Continued public confidence in the judiciary is of [*9]singular importance, and can be furthered only by permitting the Commission access to information that allows it to quickly identify and respond to judicial misconduct, including criminal behavior, abuse of power, corruption, and other actions in violation of laws applicable to judges. Matter of New York State Commission on Jud Conduct v Rubenstein, 2014 NY Slip Op 04118, CtApp 6-10-14

 

,

No Exigent Circumstances to Justify Search of a Closed Container in Defendant’s Possession Upon His Arrest for Minor Non Violent Offenses to Which the Contents of the Bag Could Have Had No Connection

The First Department determined there were no exigent circumstances which justified the search of a plastic bag (closed container0 that was in defendant’s possession at the time of his arrest:

The police detained defendant in a subway station for violating Transit Authority regulations. Because a warrant check revealed that defendant had an active warrant, the police decided to arrest him rather than issue a summons. Defendant was holding a plastic bag in his hand, and put it on the ground next to him before being handcuffed. An officer picked up the bag, which felt heavy, and looked inside to check for weapons or contraband. Inside the bag was another plastic bag, which contained a canvas bag. The officer then noticed a strong odor of marijuana, opened the canvas bag, and found nearly a pound of marijuana.

The People failed to meet their burden of showing exigency. The officers did not testify that they feared for their safety, or that they were concerned that the bag contained evidence that defendant could destroy, and the circumstances did not suggest that any exigency required an immediate search. Defendant was being arrested for minor nonviolent offenses and was not suspected of any crimes, he was handcuffed and guarded by several officers, he was fully cooperative and voluntarily placed the bag on the ground, his demeanor and actions were not threatening, and there was no indication that he might try to grab or kick the bag, which was no longer in his possession. Furthermore, there was no indication that the bag might contain a weapon and, given the nature of the transit violations, there was no possibility that the bag could contain evidence to support those charges. People v Febres, 2014 NY Slip OP 04150, 1st Dept 6-10-14

 

,

Prosecution by Misdemeanor Information Waived by Defense Counsel; Facts Alleged In Support of the Obstruction of Governmental Administration Charge Were Sufficient to Meet Requirements of a Misdemeanor Complaint

In a full-fledged opinion by Judge Rivera, over a dissent, the Court of Appeals determined the defendant had waived his right to be prosecuted by a misdemeanor information and the misdemeanor complaint to which he pled guilty sufficiently alleged the obstruction of governmental administration.  Defense counsel's statement “so waived” was deemed adequate to waive prosecution by information.  The misdemeanor complaint alleged that defendant stood behind a police vehicle after slamming the trunk shut. Those allegations were deemed sufficient to allege defendant intended to prevent the officer from patrolling the area. The dissent argued those factual allegations were insufficient to inform defendant of the nature of the charge:

“A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” … . Under the CPL, a court must use one of two instruments to take jurisdiction over a defendant accused of a misdemeanor: a misdemeanor complaint or a misdemeanor information. A misdemeanor complaint authorizes jurisdiction over an accused, and can commence a criminal action and allow the state to jail the defendant for up to five days, but it cannot serve as a basis for prosecution, unless the defendant waives prosecution by information (see CPL 100.10 [4]; 120.20 [1]; [a]; 170.65 [1], [3]; 170.70…). Concomitantly, unless waived, a valid information is a jurisdictional requirement for a misdemeanor prosecution (see CPL 100.10 [4]…).

A misdemeanor information must set forth “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof” … . We have called this “the prima facie case requirement” (Kalin, 12 NY3d at 229). An information serves the same role in a misdemeanor prosecution as a grand jury indictment does in a felony case: it ensures that a legally sufficient case can be made against the defendant … . A misdemeanor complaint, in comparison, need only set forth facts that establish reasonable cause to believe that the defendant committed the charged offense … .

A defendant may knowingly and intelligently waive prosecution by misdemeanor information, as demonstrated by an affirmative act … . When the defendant waives prosecution by information, he or she declines the protection of the statute, and the accusatory instrument must only satisfy the reasonable cause requirement (see CPL 170.65 [1], [3]…). People v Dumay, 2014 NY Slip Op 04038, CtApp 6-5-14

 

Error in Grand Jury Presentation Did Not Raise a Question of Prejudice Sufficient to Justify Dismissal of the Indictment

The Court of Appeals determined the grand jury proceedings were not rendered invalid by the presentation of the videotaped testimony of the child-victim who had not been administered an oath.  After realizing the oath had been omitted, the prosecutor presented the testimony to the grand jury again, this time preceded by the oath.  The Court of Appeals found the defendant had not established the possibility of prejudice:

The People do not dispute that an oath should have been administered to Jane during the first testimonial recording (see e.g. CPL 60.20 [2]; CPL 190.32 [5]…). On these facts, however, the error does not meet the “very precise and very high” statutory standard of impairment for grand jury proceedings … . The lack of an oath was not the product of a nefarious design to deliberately cause unfairness to defendant. Rather, it was an oversight that the People sought to correct by securing judicial permission to record a second interview in which Jane swore to be honest and verified the truth of her prior statements. The grand jury then watched the second video and was instructed that the recording was made because Jane had not taken an oath during her first examination. Based on these circumstances, defendant has not established a possibility of prejudice justifying the exceptional remedy of dismissal of the indictment… .  People v Wisdom, 2014 NY Slip Op 04040, CtApp 6-5-14

 

Plea to a Lesser Offense Need Not Be Supported by Facts Admitted in a Plea Allocution—Court’s Unnecessary Attempt to Have Defendant Admit to Facts in Support of All of the Elements of the Lesser Offense Required Vacation of the Plea

The Court of Appeals determined defendant's guilty plea was tainted by the court's and counsel's confusion about the allocution which was required.  The defendant was charged with rape by forcible compulsion (first degree) and pled guilty to a lesser rape offense–i.e., sexual intercourse with a person incapable of consent by reason of being mentally incapacitated.  The lower court and counsel, according to the court of appeals, were under the misimpression that the plea allocution must included factual allegations supporting every element of the lesser offense:

Where a defendant enters a negotiated plea to a lesser crime than one with which he is charged, no factual basis for the plea is required (People v Clairborne, 29 NY2d 950, 951 [1972]…). Indeed, under such circumstances defendants can even plead guilty to crimes that do not exist (People v Foster, 19 NY2d 150, 153 [1967]; [plea to attempt to commit a crime of which intent is not an element]).

It seems, however, that at the time of defendant's plea counsel and the court were unaware of the rule of Clairborne, and thought it necessary to find a basis in fact for the plea. The court led defendant through an allocution in which he admitted that he encountered the victim when she was “too drunk to really make a decision about whether she did or did not want to have sex”; that he knew that “she was mentally incapacitated apparently from drinking”; and that he “went ahead and had sexual intercourse with her anyway.” The allocution provided no support for the idea that the victim was mentally incapacitated as the Penal Law defines that term. * * *

We conclude that we must reverse and vacate the plea. Although the entire allocution was unnecessary, and although even if it were necessary we would not require that it prove every element of the crime charged …, we simply cannot countenance a conviction that seems to be based on complete confusion by all concerned … . People v Johnson, 2014 NY Slip Op 04039, CtApp 6-5-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy