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Applicant Eligible for Relief Under Drug Sentencing Reform Statute Must Be Afforded a Hearing

The Third Department noted that an applicant who is eligible of for a relief under the “drug sentencing reform” statute, CPL 440.46, must be afforded a hearing.  People v Cain, 2014 NY Slip Op 03711, 3rd Dept 5-22-14

 

Supreme Court Should Have Proceeded to Second Step of Defendant’s “Batson” Challenge Alleging the Prosecutor’s Exclusion of Jurors on the Basis of Race

The Second Department determined Supreme Court should have proceeded to the second step of a “Batson” challenge alleging the prosecutor was excluding jurors on the basis of race.  The matter was sent back for a completion of the process:

As the United States Supreme Court stated in Batson v Kentucky (476 US 79), “[s];election procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice” (id. at 87). The first step under Batson requires a defendant to make a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose” … . This first step “is not to be onerous,” and is satisfied “by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred” … . When a prima facie showing is made, the burden shifts to the prosecution to provide a race-neutral explanation for the challenged peremptory exclusions … .

The defendant made a prima facie showing of discrimination based on the prosecutor’s exercise of peremptory challenges to exclude the only two prospective jurors who were black, the same race as the defendant. Contrary to the Supreme Court’s finding, under the circumstances of this case, those facts were sufficient to create an inference of purposeful discrimination in the prosecution’s use of peremptory challenges to strike the only two jurors in the venire who were black … .

Accordingly, the Supreme Court should have proceeded with the second step and, if applicable, the third step of the Batson inquiry. People v Chery, 2014 NY Slip Op 03697, 2nd Dept 5-21-14

 

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Statement About Gang Affiliation Should Have Been Suppressed—Not Merely “Pedigree” Information

The Second Department determined that defendant’s statement about his gang affiliation should have been suppressed. The defendant had not yet been read his Miranda rights.  The People’s argument that the statement was simply part of so-called “pedigree” information (like “address” and “phone number”) was rejected.  The error was deemed harmless however.  People v Hiraeta, 2014 NY Slip Op 03698, 2nd Dept 5-21-14

 

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Supreme Court’s Finding Respondent Was No Longer Suffering from a Dangerous Mental Condition Reversed

The Second Department, in a full-fledged opinion by Justice Chambers, over a partial dissent, determined Supreme Court erred in finding that the respondent no longer suffers from a dangerous mental condition and could be released from a secure psychiatric facility.  Respondent is now 74 years old and had stabbed a woman 20 years ago.  He refuses to take medication and he refused to undergo a psychiatric evaluation by the Office of Mental health. There were stark differences in the assessment of his mental condition presented at a hearing pursuant to Criminal Procedure Law 330.20.  The experts arguing for continued retention were named Simon-Phelan and Formica:

Mental Hygiene Law § 1.03(20) defines a mental illness as “an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment and rehabilitation” (Mental Hygiene Law § 1.03[20]).

Upon our review of the record, we find that the credible evidence established that the respondent suffers from a mental illness, the first element of a dangerous mental disorder (see CPL 330.20[1];[c]). Simon-Phelan and Formica opined that the respondent suffers from bipolar disorder, along with various personality disorders, whether narcissistic, grandiose, or antisocial. Most relevant, the respondent’s behaviors, consistently displayed over the past 20 years, as thoroughly documented throughout the record, are indicative of these disorders. These behaviors include his aggressive and violent acts, his abrasiveness when speaking to others, his refusal to follow rules, his inappropriate sexual advances, his inflated self-esteem, his high level of energy, his excessive writing, and his overzealousness with respect to litigation … . Although the categorization of the respondent’s mental illness has differed between mental health professionals, a number of professionals have drawn the same conclusions as Simon-Phelan and Formica, dating back as far as 1994. As one psychiatrist put it in 2003, the debate about whether the respondent’s “pathology is Axis I or Axis II or some combination thereof . . . can be carried on indefinitely,” but when one considers his symptomatic exacerbation, poor judgment, and poor impulse control, all of which continue to exist, he remains in “the category of dangerously mentally ill.” Matter of Marvin P, 2014 NY Slip Op 03690, 2nd Dept 5-21-14

 

Court Has Inherent Authority to Reinstate Indictment After Dismissal for Legal Insufficiency

The First Department determined the motion court properly exercised its discretion in reinstating the indictment when presented with a portion of the grand jury minutes which had inadvertently been omitted from the original submission.  The court had dismissed the indictment finding the grand jury evidence legally insufficient:

The court had inherent authority to reinstate the indictment …, and defendant’s claim that the indictment was unlawfully amended is without merit, because the text of the indictment remained unchanged. People v Godbold, 2014 NY Slip Op 03624, 1st Dept 5-20-14

 

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Codefendant’s Statement Was Admissible—the Fact that the Statement Implicated the Defendant in the Light of Other Trial Evidence Did Not Violate Defendant’s Right of Confrontation

The Third Department determined a co-defendant’s statement, which had been redacted to exclude references to the defendant, was admissible.  The defendant’s argument that the statement implicated him in the light of the trial evidence was rejected:

A defendant’s right to confront witnesses is violated by the admission of “the facially incriminating confession of a nontestifying codefendant” …; however, no such violation occurs where, as here, the codefendant’s statement incriminates the defendant only in light of other evidence produced at trial … . Nor did the use of plural pronouns such as “we” and “they” in the statement necessarily indicate any involvement by defendant … . Accordingly, the statement was admissible, and defendant’s rights under the Confrontation Clause were not violated by the People’s arguments that drew inferences about his participation by linking the statement with other trial evidence … . People v Maschio, 2014 NY Slip Op 03551, 3rd Dept 5-15-14

 

Rape and Incest Counts Rendered Indictment Multiplicitous/Trial Testimony Rendered Counts Duplicitous

The Second Department determined the trial testimony rendered some of the rape and incest counts duplicitous.  The defendant’s daughter testified she was raped once a week for three weeks every month.  The court determined that where the jury found the defendant guilty of all three crimes charged within a particular month, the counts were not duplicitous because the jury would have had to vote unanimously on all three crimes.  However, where the defendant was convicted of only one or two of the crimes charged for a particular month, it was impossible to know whether the jury voted unanimously on the same alleged crimes.  In addition the court noted that some of the counts charging rape and incest were based on the same conduct, rendering the indictment multiplicitous as well:

“Each count of an indictment may charge one offense only” (CPL 200.30[1]). A count that, in violation of the statute, charges more than one offense, “is void for duplicity” … . “The proscription against duplicitous counts . . . seeks [inter alia] to prevent the possibility that individual jurors might vote to convict a defendant of that count on the basis of different offenses,’ in effect, permitting a conviction even though a unanimous verdict was not reached”… . “Where a crime is completed by a discrete act, and where a count in the indictment is based on the repeated occurrence of that act over a course of time, the count includes more than a single offense and is duplicitous” … . “Even if a count is valid on its face, it is nonetheless duplicitous where the evidence presented to the grand jury or at trial makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict” … .

The younger daughter testified that the defendant had sexual intercourse with her once, on Tuesday or Wednesday, every week for the first three weeks of each month during the period at issue, while skipping the fourth week, because she was menstruating. The verdict sheet presented to the jury contained three counts for each month at issue. The first count for each month described the alleged crime as occurring on or about the first of the subject month to on or about the last day of the month. The second count for each month provided the same description as the first count for each month, but also stated that the alleged crime was “separate and distinct from the act mentioned and described” in the first count for that month. The third count provided the same description as the first count for each month, but also stated that the alleged crime was “separate and distinct from the acts mentioned and described” in the first and second counts for that month.

Contrary to the defendant’s contention, where the jury convicted the defendant of all three of the counts for the same month, it is clear, based on the younger daughter’s testimony, that they were unanimous in convicting him of each of the three different crimes. However, as the People correctly concede, where the defendant was convicted of only one or two of the counts charging rape or incest in a particular month, it is impossible to determine whether the jury unanimously found the defendant guilty of the same crime, because neither the wording on the verdict sheet, nor the jury charge, linked “the testimony of vaginal intercourse sequentially or otherwise to the different counts of the indictment”… . People v Jean, 2014 NY Slip Op 03534, 2nd Dept 5-14-14

 

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People Did Not Meet Their Burden of Demonstrating the Legality of the Police Action—Seized Handgun, Identification and Statement Properly Suppressed

The Second Department determined the People did not meet their burden of demonstrating the legality of the police action at the suppression hearing.  The handgun recovered from the defendant’s backpack was properly suppressed:

Where a defendant moves to suppress evidence, the People bear the initial burden of establishing the legality of the police conduct in the first instance, while the defendant bears the ultimate burden of proving, by a preponderance of the evidence, that the challenged evidence should not be used against him or her … . Based on the record before it, the Supreme Court properly suppressed the handgun seized from the backpack in the defendant’s possession, since the People failed to meet their burden of demonstrating the legality of the police conduct. Although the police officers properly initiated a common-law inquiry to obtain explanatory information from a group of six men, which included the defendant, based upon information from an anonymous informant …, reasonable suspicion justifying an intrusive search of the backpack in the defendant’s possession never arose … . Accordingly, the police search of the backpack was improper, requiring suppression of the handgun recovered from the backpack. Additionally, suppression of identification evidence and a statement made by the defendant to law enforcement officials was also required, as such evidence was fruit of the poisonous tree … . People v Nichols, 2014 NY Slip Op 03541, 2nd Dept 5-14-14

 

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Violation of Right to Counsel Deemed Harmless Error

The Second Department noted that a violation of a defendant’s right to counsel is subject to a harmless error analysis.  Here the police were contacted by an attorney who told the police he was representing the defendant and not to question him if and when he is apprehended.  The court determined defendant’s right to counsel was violated when the police questioned him, but found the error harmless:

The right to counsel attaches, inter alia, when an attorney who is retained to represent a suspect enters the matter under investigation … . When an attorney enters a case to represent the accused, the police may not question the accused about that matter regardless of whether the person is in police custody … . “An attorney enters’ a case by actually appearing or directly communicating with the police by telephone” … . The issue of whether an [*2]attorney has entered a case is not dependent upon whether that attorney has been personally retained by the defendant, or has instead been retained by a member of the defendant’s family … . * * *

A violation of the indelible right to counsel does not automatically constitute reversible error. Instead it is reviewed under the harmless error doctrine for constitutional violations … . Constitutional errors are “considered harmless when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict” … . If no such possibility exists, the error is deemed to be harmless beyond a reasonable doubt … . People v Ellis, 2014 NY Slip Op 03530, 2nd Dept 5-14-14

 

Judge Properly Refused to Accept Defendant’s Plea to a Lesser Offense Because the Prosecutor Objected to the Plea Allocution as Insufficient

The Second Department determined the judge properly refused to accept defendant’s plea to a lesser offense when the prosecutor objected to the plea colloquy as insufficient:

“Since, in effect, permission to enter a lesser plea is a matter of grace, reasonable conditions may be attached thereto. What is reasonable is generally a question of fact attendant upon the circumstances” … . “A District Attorney may dictate the terms under which he [or she] will agree to consent to accept a guilty plea and where his terms are not met, he [or she] may withhold such consent; the withholding of such consent by statutory mandate renders the court without authority to accept a plea to anything less than the entire indictment” … . Here, in view of the prosecutor’s objections to the plea allocution, the court did not err in refusing to accept the plea … . People v Swails, 2014 NY Slip Op 03545, 2nd Dept 5-14-14

 

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