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Court’s Erroneous Jury Instruction Re: State’s Territorial Jurisdiction Over the Alleged Crime Was Not a Mode of Proceedings Error—Objection Is Required to Preserve the Issue for Appeal

The First Department determined that the court’s erroneous jury instruction concerning the state’s terretorial jurisdiction over the case, as opposed to whether the state actually had territorial jurisdiction, required preservation by objection:

The trial court instructed the jury that the prosecution was required to establish the State’s territorial jurisdiction by a preponderance of evidence. As the People concede, the charge was erroneous in this regard . On the contrary, the People were required to establish the State’s territorial jurisdiction by proof beyond a reasonable doubt (see People v McLaughlin, 80 NY2d at 470). Moreover, territorial jurisdiction is not waivable (id. at 471). Our analysis, however, does not end with a citation to McLaughlin. The issue before us involves the trial court’s charge on jurisdiction as opposed to jurisdiction itself. Although a challenge to a court’s territorial jurisdiction cannot be waived, a claim of error in a court’s instructions on the subject requires preservation by way of an appropriate objection at the court of first instance. Nonetheless, the requirement of preservation is subject to an exception that exists for “mode of proceedings” errors that consist of the most fundamental flaws implicating jurisdictional matters or constitutional rights that go to the very heart of the criminal justice process … . Defendant asserts that the mode of proceedings exception applies here. People v Carvajal (6 NY3d 305 [2005]), a case involving an interstate drug operation, is illustrative. In Carvajal, the Court noted that the defendant had “relinquished his opportunity to hold the People to their burden of proof, and did not preserve his current contention that the jury should have decided whether the People proved jurisdiction beyond a reasonable doubt” (id. at 311-312). Citing People v Greenberg (89 NY2d 553 [1997]), the Carvajal Court aptly observed that “a defendant’s failure to request a jury charge on territorial jurisdiction amounts to a waiver of a jury charge claim, that failure does not amount to waiver of the fundamental question whether – as a matter of law – this State has the power to hear the case” (id. at 312). In this case, it is undisputed that defendant did not object to the trial court’s erroneous charge on the burden of proof with respect to territorial jurisdiction. Guided by Carvajal, we find that defendant was required, but failed, to preserve his present challenge to the trial court’s charge on jurisdiction.  People v Polk, 2014 NY Slip Op 04561, 1st Dept 6-19-14

 

Defendant’s Consent to the Substitution of a Juror Was Not Knowingly and Intelligently Given, Reversal Required

The Second Department, in a full-fledged opinion by Justice Chambers, determined the defendant’s consent to the substitution of a juror was not knowingly and intelligently given and reversal was required (despite the absence of an objection).  The defendant was not present when defense counsel consented to the substitution and deliberations resumed.  When the defendant arrived, he consented to the substitution.  In the mean time, however, the jury had reached a verdict.  But the trial judge had not informed the defendant a verdict had been reached at the time the defendant was asked for his consent to the substitution:

“[T]he safeguards afforded by CPL 270.35 are identical to and coextensive with the constitutional requirements for valid waiver of a jury trial” … . The decision to allow an alternate juror to be substituted for a deliberating juror must be knowing, intelligent, and voluntary … . The defendant must be “fully aware of the consequences of the choice he [or she] is making” … . In determining whether a defendant’s decision to consent to the substitution of an alternate juror for a deliberating juror is “made knowingly and understandingly, based on an intelligent, informed judgment” …, a court is required to be ” scrupulous,'” for at stake is the defendant’s “fundamental, constitutional right to a jury of 12” … . Here, the defendant’s election to substitute the alternate juror for the deliberating juror was not based on an intelligent, informed judgment. No matter how well-intentioned the trial court was in not disclosing the fact that the jury had already reached a verdict, due process required the trial court to disclose to the defendant all of the pertinent, material facts. People v Canales, 2014 NY Slip Op 04508, 2nd Dept 6-18-14

 

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Providing a False Name During Booking Did Not Trigger the Need for a Miranda Warning

The Second Department determined the police were not required to give the defendant Miranda warnings when the defendant gave a false name during the booking procedure:

When the defendant gave what a police officer suspected to be a false name, the officer warned him that giving a false name would result in an additional charge, as required by the false personation statute (see Penal Law § 190.23). The defendant then repeated the false name after being given a second warning. The officer’s warnings to the defendant did not require Miranda warnings (see Miranda v Arizona, 384 US 436). There is no basis for suppressing the defendant’s repeated use of a false name. Ascertaining an arrestee’s true name is a necessary part of the normal booking process, even if the response may have inculpatory connotations … . The false personation warnings were required by statute and were not reasonably likely to elicit an incriminating response .. . People v Allen, 2014 NY Slip Op 04503, 2nd Dept 6-18-14

 

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Warrantless Search of a Backpack Dropped During a Struggle with Police Was Not a Valid Search Incident to Arrest

The Second Department determined that the search of defendant’s backpack, which turned up a loaded weapon, was not a valid search incident to arrest.  The backpack had been dropped during a struggle with the arresting officer and the arrest took place some distance away from where the backpack was:

“Under the State Constitution, an individual’s right of privacy in his or her effects dictates that a warrantless search incident to arrest be deemed unreasonable unless justified by the presence of exigent circumstances” … . “When an individual subjected to arrest has a privacy interest in property within his or her immediate control or grabbable area’, [the Court of Appeals] has identified two interests that may justify the warrantless search of that property incident to a lawful arrest: the safety of the public and the arresting officer; and the protection of evidence from destruction or concealment” …

Contrary to the Supreme Court’s determination, the search of the backpack was not justified as a search incident to a lawful arrest. The backpack was not within the defendant’s immediate control or “grabbable area” at the time he was arrested … . Moreover, the People failed to present evidence establishing exigent circumstances at the time of the arrest that would justify the search. The detective did not assert that he searched the backpack out of concern for the safety of himself or the public, and the circumstances did not support a reasonable belief that the backpack contained a weapon … . Likewise, the detective did not assert that he searched the backpack to protect against the destruction of evidence, and the facts do not support such an assertion. People v Thompson, 2014 NY Slip Op 04524, 2nd Dept 6-18-14

 

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Photograph of Accident Scene Properly Admitted Notwithstanding Flowers Remembering Victim

The Fourth Department, in affirming defendant’s conviction stemming from the death of a passenger after defendant’s vehicle struck a tree, determined that the photograph of the accident scene was properly admitted notwithstanding the flowers placed at the scene in remembrance of the victim.  The court also rejected arguments that (1) defendant’s post-arrest silence was revealed to the jury (not preserved) (2) turning off the overhead projector effectively closed the courtroom (not preserved) and (3) defense counsel was erroneously prohibited from questioning the medical examiner about alternative causes for the victim’s injuries (speculative,  insufficient foundation).  With respect to the photograph, the court wrote:

“The general rule is stated in People v Pobliner (32 NY2d 356, 369…) photographs are admissible if they tend to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered.’ They should be excluded only if [their] sole purpose is to arouse the emotions of the jury and to prejudice the defendant’ ” … . Here, we agree with the People that the sole purpose of the evidence was not to arouse the emotions of the jury. To the contrary, the photographs established the relative positions of the tree and the roadway, the visibility of the tree, and the straight nature of the roadway, all of which were relevant to the jury’s factual determinations, including whether defendant was driving while in an intoxicated condition. People v Boop, 2014 NY Slip Op 04296, 4th Dept 6-13-14

 

“Rare Case” Where Facts Supported Both Depraved Indifference and Intentional Murder

The Fourth Department determined the facts of the case—defendant fired a pistol at three people he did not know, killing one—supported both intentional and depraved indifference murder.  Defendant had been “jumped” by a student from a particular housing project.  Three days later defendant went to the project and committed the shooting:

The relevant legal principles for evaluating the above trial evidence are well settled. Depraved indifference is a mental state

” best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not’ ” … . “Circumstantial evidence can be used to establish the necessary mens rea” … . Although shooting into a crowd of people is a ” [q]uintessential example[ ]’ ” of depraved indifference … , the mere presence of others does not transform an otherwise intentional shooting into a depraved indifference murder or assault … . Rather, the point of distinction between a criminal act committed with intent and a criminal act committed with depraved indifference is that the former is motivated by the “conscious objective” to cause death or serious physical injury, while the latter is “recklessly indifferent, depravedly so, to whether death [or serious physical injury] occurs” … .

We conclude that this case is one of those “rare” cases where the defendant properly could have been charged with both intentional and depraved indifference murder …. Stated otherwise, and contrary to defendant’s contention, he is not “guilty of an intentional shooting or no other” … . The evidence summarized above, when viewed in the light most favorable to the People, establishes a “valid line of reasoning and permissible inferences which could lead a rational person” to conclude that defendant, by shooting indiscriminately at a group of people that he did not know, acted with depraved indifference to human life rather than with intent to kill … . People v Archie, 2014 NY Slip Op 04307, 4th Dept 6-13-14

 

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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

 

Robbery First and Second Degree Convictions (Forcible Stealing) Supported Where Defendant Was Not Found to Be In Possession of Stolen Property and Used Force Only When Confronted By Security Personnel After the Alleged Taking

The Court of Appeals, in a full-fledged opinion by Judge Rivera, held that it is not necessary to recover stolen property in order to find that the defendant used physical force to prevent or overcome resistance to the … retention of stolen property (an element of robbery in the first and second degrees).  There was evidence, including video evidence, that the defendant removed the backing from earrings while inside a store. When confronted by security personnel, the defendant acted violently.  No stolen items were found.  The use of force at issue here was not involved in the taking of the property, but rather occurred  after the alleged taking when defendant was stopped by security.  The question was whether the defendant's use of force at that stage could be deemed to meet the “forcible stealing” element of robbery first and second degree.  Some appellate division decisions have held that defendant's use of force at that stage will meet the statutory requirement (force used to retain control of the property) if the defendant is found to be in possession of the stolen property. Here the Court of Appeals determined finding the defendant in possession of stolen property is not required:

Force used solely to effectuate a defendant's escape will not support a robbery conviction … . However, when a defendant is later found in possession of stolen property, the jury may infer that his or her use of force was to retain control of that property … .

Some Appellate Division Departments have adopted what amounts to an inverse proposition, that failure to recover stolen property from a defendant precludes a jury's finding of guilt for first or second degree robbery, notwithstanding the possible inferences which might reasonably follow from the trial evidence. Those Courts have held that, absent subsequent recovery of stolen property from the defendant, “it is impossible to conclude beyond a reasonable doubt that [the] defendant's conscious objective in threatening to use physical force was to prevent or overcome resistance to the retention of the property” … . We reject this premise because it deprives the jury of its traditional role as factfinder and would have the unintended consequence of removing certain criminal conduct from the statutory ambit. * * *

Certainly, recovery from the defendant of the stolen property provides a strong basis for a jury's finding of criminal intent … . Yet, just as possession of the property is but one fact which supports the jury's reasonable inference of the defendant's “conscious objective,” failure to recover the property from the defendant is also a fact for the jury to consider in determining whether the People have established the requisite intent. Where sufficient facts and reasonable inferences support a finding of intent to forcibly steal, even where the stolen property is not recovered from the defendant, a jury should be permitted to make such a finding.  People v Gordon, 2014 NY Slip Op 04227, CtApp 6-12-14

 

Unclear Record Re: Whether Defense Counsel Was Apprised of the Complete Contents of a Jury-Request for Instructions Combined with the Judge’s Failure to Address One Aspect of the Request Constituted a “Mode of Proceedings” Error

The Court of Appeals determined the trial judge's response to a note from the jury was a mode of proceedings error requiring the vacation of the convictions related to the note.  The note asked for the judge's directions on “Manslaughter/Murder in the Second Degree-(Intent).”  The judge did not re-read the expanded “intent” charge and the record does not indicate defense counsel was notified of the “intent” aspect of the jury note:

Here, the trial court failed to meet its core responsibilities with regard to the note. Although there is record evidence that defense counsel was made aware of the existence of the note, there is no indication that the entire contents of the note were shared with counsel. Rather, the record reflects that the court paraphrased the note for counsel and the jury, but in each instance it omitted any reference to the note's “intent” language, hardly “a fair substitute for defense counsel's own perusal of the communication” (O'Rama, 78 NY2d at 277). Although the note is ambiguous concerning whether the jury was requesting an expanded definition of the intent element or was merely asking for a read back of the homicide charges which included a definition of intent, this only substantiates defendant's argument that the court failed to meet its core responsibilities of providing defense counsel with meaningful notice and an opportunity to provide input so that the court could give the jury a meaningful response. Where the record fails to show that defense counsel was apprised of the specific, substantive contents of the note — as it is in this case — preservation is not required … . Where a trial transcript does not show compliance with O'Rama's procedure as required by law, we cannot assume that the omission was remedied at an off-the-record conference that the transcript does not refer to (id.). People v Walston, 2014 NY Slip Op 04229, CtApp 6-12-14

 

Building Which Included Residential (Hotel) and Non-Residential Sections Constituted a “Dwelling” Supporting Defendant’s Conviction for Burglary in the Second Degree

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined that the entry of a building with included residential and non-residential sections, constituted burglary of a “dwelling” supporting burglary in the second degree.

We last confronted this question long ago, in Quinn v People (71 NY 561 [1878]). That case established a rule that we reaffirm today: Generally, if a building contains a dwelling, a burglary committed in any part of that building is the burglary of a dwelling; but an exception exists where the building is large and the crime is committed in a place so remote and inaccessible from the living quarters that the special dangers inherent in the burglary of a dwelling do not exist. Applying that rule to this case, we hold that the evidence supports defendant's conviction on two counts of second-degree burglary. People v McCray, 2014 NY Slip Op 04232, CtApp 6-12-14

 

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