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Error for Trial Judge to Defer to Prosecutor’s Wish to Dismiss a Count of an Indictment—The Judge Must Exercise His or Her Own Discretion on the Issue

The First Department determined the trial judge had erroneously deferred to the prosecutor’s wish to dismiss a count of the indictment before submitting the case to the jury.  The judge, not the prosecutor, has the discretion to dismiss counts.  The error was deemed harmless however:

Defendant argues on appeal that the court improperly deferred to the People’s desire to withdraw the fourth-degree possession charge, relying on People v Extale (18 NY3d 690 [2012]). In Extale, the defendant was indicted for, inter alia, first-degree assault and first-degree vehicular assault, in connection with his having intentionally driven a pickup truck into a police officer. Before the trial of those charges, the prosecutor announced the People’s intention to withdraw the vehicular assault count, and the court agreed with the prosecutor that the People had “the authority” to do so. The Court of Appeals disagreed, holding that “the issue was one for the trial court’s discretion, not the prosecutor’s” (18 NY3d at 695). * * *

On the merits, we agree with defendant that the court’s position with respect to the count was no different from that of the trial court in Extale, which was found by the Court of Appeals to be erroneous. No fair reading of the trial record supports the People’s argument that the trial court exercised its discretion in dismissing the charge. Indeed, its comment that “the People can dismiss [the count]” was equivalent to the Extale trial court’s comment that the prosecutor “ha[d] the authority” to dismiss the vehicular assault count (18 NY3d at 693). People v Silvestre, 2014 NY Slip Op 04562, 1st Dept 6-19-14

 

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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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Defendant Did Not Demonstrate Standing to Challenge Search of Vehicle

The Third Department determined the defendant did not demonstrate he had standing to contest the inventory search of a vehicle, parked and empty at the time the police seized it, which turned up a weapon.  A police officer had seen the defendant driving the vehicle just before it was seized and a confidential informant had told the police where the defendant kept a handgun in the vehicle. Because the People did not rely solely on the statutory presumption of possession of a weapon (Penal Law 265.15 (3)) the defendant needed to allege and demonstrate standing.  Because the defendant did not own the vehicle and denied driving it on the day it was seized, he was unable to challenge the search:

A defendant seeking to suppress evidence has the burden to allege and, if disputed, establish standing to challenge a search … . “Standing exists where a defendant was aggrieved by a search of a place or object in which he or she had a legitimate expectation of privacy” … . While a defendant is entitled to “automatic standing” if the People “rely solely on the statutory presumption [of possession of a weapon] contained in Penal Law § 265.15 (3) to establish his [or her] guilt” …, defendant here cannot rely on that exception to his burden regarding standing. The People did not depend entirely upon the statutory presumption of standing, but had other evidence, including one officer who witnessed defendant driving the vehicle and the CI who provided information that defendant had a handgun in the vehicle and where within the vehicle the gun would be located … . Inasmuch as defendant did not own the BMW and denied that he was driving it on the day in question, he failed to allege any legitimate expectation of privacy in that vehicle. People v Anderson, 2014 NY Slip Op 04269, 3rd Dept 6-12-14

 

Exclusive Access Not Required for Constructive Possession

The Third Department determined the proof of constructive possession of a weapon was sufficient.  The gun was found in a boot outside the door to the apartment where defendant lived.  He had been seen entering the building with a gun. The court noted that exclusive access to the area where contraband is found is not required to sustain a finding of constructive possession:

Constructive possession can be established by evidence that the defendant had dominion and control over the weapon or the area in which it was found … . Exclusive access, however, is not required to sustain a finding of constructive possession … . Here, the People established that defendant resided in the first-floor apartment with his girlfriend and their young son, and the loaded handgun was found in a man’s boot located in a hallway leading to that apartment among shoes belonging to defendant’s girlfriend and his son. The only other tenant in the building was an elderly woman who lived on the second floor. Although defendant denied ownership of the boots, he admitted that he kept some of his belongings in the hallway, and the People established the presence of his DNA on the weapon. The rational inferences to be drawn from this evidence are sufficient to support the conclusion that defendant exercised dominion and control over the weapon and the area in which it was found … . People v Bellamy, 2014 NY Slip Op 04262, 3rd Dept 6-12-14

 

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

 

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