The Second Department determined defense counsel’s denial of defendant’s claim he was forced to plead quilty by defense counsel’s telling him a rejection of the plea offer would result in a much greater sentence effectively made defense counsel a witness against her client. A new attorney should have been assigned at that point to protect defendant’s right to counsel. People v Barr, 2014 NY Slip Op 02949, 2nd Dept 4-30-14
The First Department determined the detective’s urging defendant to make a statement did not render defendant’s statement involuntary:
…[P]rior to administering Miranda warnings, for a period of approximately 20 minutes, [the detective] urged defendant to talk to the police and “gave him several reasons why he should.” The detective properly conveyed to defendant that he knew defendant was involved in the crime, stating “point blank” that the evidence against defendant was strong, including videotape and eyewitness evidence. He urged defendant to take advantage of “your chance” to speak before the other suspects implicated him … . The detective also told defendant that cooperation could be beneficial and that the detective would “call the D.A.” once defendant “put down” his story. After defendant indicated that he wanted to talk, he was read his Miranda rights, waived them, and proceeded to make several written statement and one videotaped statement.There is nothing in the record to indicate that defendant’s will was overborne or that the detective’s preliminary remarks tricked, cajoled or threatened him into waiving his Miranda rights. People v Rutledge, 2014 NY Slip Op 02885, 1st Dept 4-29-14
The Second Department determined defendant had presented enough evidence to justify a hearing on whether his counsel was ineffective for failure to inform him of an earlier, more lenient, plea offer. The court explained the legal principles involved:
…[T]he United States Supreme Court held in Missouri v Frye ( _____ US _____, _____, 132 S Ct 1399, 1410) that counsel’s failure to advise a criminal defendant of a beneficial plea agreement constitutes ineffective assistance of counsel under the Sixth Amendment … where the defendant establishes that there was a reasonable probability that he or she would have accepted the earlier plea offer had it been communicated to him or her, that the election to go to trial or accept a different plea agreement resulted in a harsher penalty, and that, if the prosecution had the discretion to cancel the earlier proposed plea agreement or the trial court had the discretion to refuse to accept it, there was a reasonable probability that neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented. In Lafler v Cooper ( _____ US _____, _____, 132 S Ct 1376, 1391), which was decided on the same day as Missouri v Frye, the United States Supreme Court concluded that the remedy for a claim of ineffective assistance of counsel that results in a harsher sentence than that initially proposed to the defendant pursuant to a plea agreement is to direct the People to reoffer the plea agreement.
Given the defendant’s detailed allegations on the record, which had first been brought to the Supreme Court’s attention more than one month before the defendant pleaded guilty, the court should have addressed the contention. Accordingly, we remit the matter to the Supreme Court, Queens County, for a hearing and a report on the defendant’s contention that the People had previously made a more lenient plea offer than the one which he ultimately accepted. The defendant has the burden of establishing that the People made that plea offer, including a determinate term of imprisonment of three years in connection with a plea of guilty to a lesser count …, that his first assigned counsel did not adequately inform him of that offer …, that there is a sufficient likelihood that he would have accepted the offer had counsel adequately communicated it to him …, and that there is a reasonable likelihood that neither the People nor the court would have blocked the alleged agreement… . People v Maldonado, 2014 NY Slip Op 02800, 2nd Dept 4-23-14
Although deemed harmless error, the Second Department determined the show-up identification of the defendant was unduly suggestive. The defendant had already been arrested when he was pulled to a standing position in front of the victim for identification (for the second time). At that point there were no “exigent circumstances” to justify the procedure used:
While the defendant bears the ultimate burden of proving that a showup procedure is unduly suggestive and subject to suppression, “the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure” … . “The People’s burden consists of two elements. First, the People must demonstrate that the showup was reasonable under the circumstances. Proof that the showup was conducted in close geographic and temporal proximity to the crime will generally satisfy this element of the People’s burden'” … . However, “[t]he People also have the burden of producing some evidence relating to the showup itself, in order to demonstrate that the procedure was not unduly suggestive” … .
The People established that the showup “was conducted in close geographic and temporal proximity to the crime” … . However, they failed to demonstrate that the procedure was not unduly suggestive. The fact that a defendant is handcuffed and in the presence of police officers, standing alone, does not render a showup unduly suggestive …, even where “the victim had been told that the police had a suspect in custody” … . Here, however, the complainant was given two opportunities to identify the same man as the perpetrator. The second time, police officers pulled the defendant into a standing position and escorted him to where the complainant was standing. At that juncture, the defendant was under arrest and Officer Fallace acknowledged that “[t]here was no rush at that point.” Therefore, there were no exigent circumstances justifying the procedures employed. The above-described circumstances, when “viewed cumulatively,” establish that “the showup identification was unduly suggestive” … . Further, there was no hearing or finding on the question of whether the complainant’s in-court identification had an independent source … . People v Ward, 2014 NY Slip Op 02809, 2nd Dept 4-23-14
The Second Departent reversed defendant’s conviction and dismissed the indictment, finding that the initial approach of defendant in his vehicle by Officer Ranolde was not justified:
In People v De Bour (40 NY2d 210), the Court of Appeals established a graduated four-level test for evaluating the propriety of police encounters when a police officer is acting in a law enforcement capacity … . The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective credible reason, not necessarily indicative of criminality …. The second level, known as the “common-law right of inquiry,” requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion … . The third level under DeBour permits a seizure, meaning that a police officer may forcibly stop and detain an individual. Such a seizure, however, is not permitted unless there is a “reasonable suspicion” that an individual is committing, has committed, or is about to commit a crime … . Finally, the fourth level under De Bour authorizes an arrest based on probable cause to believe that a person has committed a crime … .
“Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand” …. “To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion” … . The defendant’s later conduct “cannot validate an encounter that was not justified at its inception” … .
Here, that branch of the defendant’s omnibus motion which was to suppress the physical evidence seized should have been granted, as Ranolde lacked an objective, credible reason for approaching the defendant’s car and shining his flashlight into the car … . At the hearing, Ranolde failed to articulate any reason for approaching the defendant’s car other than that the car was parked in the early morning in an area where cars usually were not parked, and that the defendant may have moved something from the dashboard and thrown it on the floor of his car. Neither reason was a sufficient basis for the officers to have approached the defendant’s vehicle and requested information … .In any event, Ranolde’s testimony did not support a finding that he had a reasonable suspicion that the defendant was committing, had committed, or was about to commit a crime … . Indeed, there was nothing to indicate that the defendant had violated any Vehicle and Traffic Law provision … . Additionally, Ranolde admitted that, after he initiated his inquiry, he looked into the defendant’s car using a flashlight and noticed nothing illegal or out of the ordinary. The defendant’s removal of something from the dashboard and his wearing of gloves were innocuous, and not indicative of criminality … People v Laviscount, 2014 NY Slip Op 02798, 2nd Dept 4-23-14
The Third Department determined the temporary restraining order granted by Supreme Court, which prohibited the broadcast of a movie about a murder of which plaintiff was convicted, constituted an impermissible prior restraint of free speech:
“A ‘prior restraint’ on speech is ‘a law, regulation or judicial order that suppresses speech . . . on the basis of the speech’s content and in advance of its actual expression'” … . It is well settled that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” … . As explained by the United States Supreme Court, “a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them . . . beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable” … . Although the prohibition against prior restraint is not absolute, any restraint on speech comes with “a ‘heavy presumption’ against its constitutional validity” … . Censorship in advance of publication will be constitutionally tolerated only upon “a showing on the record that such expression will immediately and irreparably create public injury” … .
Plaintiff has failed to show such immediate and irreparable public harm. “Romeo Killer: The Christopher Porco Story” purports to depict the events leading up to and surrounding plaintiff’s murder trial, a matter of significant public interest. Its broadcast would not create the type of imminent and irreversible injury to the public that would warrant the extraordinary remedy of prior restraint. Rather, any alleged harm or injury flowing from the content of the film would be limited to plaintiff alone. That portions of the movie may be fictionalized, dramatized or embellished does not constitute a sufficient basis for the imposition of a prior restraint enjoining its broadcast … . While judicial redress following publication is available if it is ultimately proven that defendant abused its rights of speech, it was constitutionally impermissible under these circumstances to forbid that speech prior to its actual expression… . Porco v Lifetime Entertainment Servs LLC, 2014 NY Slip Op 02641, 3rd Dept 4-17-14
The First Department (after noting that the record supported closing the courtroom for the undercover officer’s testimony, even though the trial court did not discuss alternatives) determined the trial court properly found defense counsel had the ultimate authority to decide whether defendant should testify before the grand jury and therefore properly denied defendant’s request to testify against the advice of his attorney:
Criminal Court … properly determined that defense counsel had the ultimate authority to decide whether his client should testify before the grand jury, and properly denied defendant’s request to testify against the advice of his attorney. Defendant’s argument “incorrectly equates the right to testify before the grand jury with the right to testify at trial” … . “[U]nlike certain fundamental decisions as to whether to testify at trial, which are reserved to the defendant . . . with respect to strategic and tactical decisions like testifying before the grand jury, defendants represented by counsel are deemed to repose decision-making authority in their lawyers” … . The strategic decision to testify before the grand jury requires the “expert judgment of counsel” …, because it involves weighing the possibility of a dismissal, which, in counsel’s judgment, may be remote, against the potential disadvantages of providing the prosecution with discovery and impeachment material, making damaging admissions, and prematurely narrowing the scope of possible defenses. People v Brown, 2014 NY Slip Op 02683, 1st Dept 4-17-14
The First Department, in a full-fledged opinion by Justice Acosta, over a dissent, determined the admission of evidence of an uncharged crime to demonstrate defendant’s intent required reversal because (1) the proof was not ambiguous about defendant’s intent, and (2) the prior crime was not so similar to the charged crime that it proved the existence of a common scheme or plan. Defendant was charged with theft of a ring from a man named Cushman. Extensive proof that defendant had previously stolen jewelry from another person was allowed:
Where intent is at issue but cannot be readily inferred from the commission of the act itself, evidence of prior criminal acts may be used to establish it … . Where, however, proof of the act demonstrates that the defendant acted with the requisite state of mind, Molineux evidence should not be admitted … . Here, proof of defendant’s actions is sufficient to demonstrate that he acted with the requisite intent. Spraying someone in the face with mace, grabbing the person’s ring and running can only indicate an intent to steal the ring. If the jury believed Cushman’s testimony, then it would have to infer that defendant intended to steal the ring from him. * * *
Nor was [the prior crime evidence] admissible under the common plan or scheme exception, which requires that “there exist[] a single inseparable plan encompassing both the charged and the uncharged crimes” … . “There must be such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations'” …. Indeed, the Court of Appeals noted that “courts have been particularly cautious in permitting proof of uncharged criminal acts to establish a common scheme or plan” … . Evidence that is merely indicative of a modus operandi is not sufficient. “[A] modus operandi alone is not a common scheme; it is only a repetitive pattern” … . What is generally required is evidence of “uncharged crimes committed in order to effect the primary crime for which the accused has been indicted” … . People v DeGerolamo, 2014 NY Slip Op 02698, 1st Dept 4-17-14
The Third Department affirmed defendant’s conviction for murder, rejecting the claim that county court’s informing all the jurors that defendant’s prior conviction for the same offenses had been reversed, as well as the community’s knowledge about the case due to publicity, deprived defendant of a fair trial. In addition, the Third Department concluded that the trial judge did not err in allowing the defendant to proceed pro se three weeks into the trial. With respect to the propriety of allowing the defendant to represent himself, the court explained:
Here, there is no question that defendant’s mid-trial request to proceed pro se made some three weeks after the trial commenced was untimely … . Faced, however, with defendant’s repeated, articulate and impassioned pleas to represent himself, County Court elected in an exercise of its discretion to consider the merits of defendant’s request. Although defendant now faults County Court’s decision in this regard, we cannot say under the particular facts of this case that reversal upon this ground is warranted.
To be sure, the Court of Appeals has held that once a trial has commenced and witnesses have testified, a defendant’s “right [to proceed pro se] is severely constricted and the trial court must exercise its sound discretion and grant the request only under compelling circumstances” … . The rationale for this rule, however, stems from concerns regarding “the potential for obstruction and diversion” that may attend a defendant’s decision or be part of a defendant’s strategy to abandon representation in the midst of the trial, as well as a desire to “avert[] delay and confusion” … . Such concerns were not an issue here, however, and it is clear that, under appropriate circumstances and following sufficient inquiry, mid-trial requests to proceed pro se may be granted … . Based upon our review of the record as whole, and taking into consideration defendant’s insistence that he be allowed to proceed pro se, we are satisfied that County Court did not abuse its discretion in considering the merits of defendant’s request.
As to the sufficiency of County Court’s inquiry, suffice it to say that County Court repeatedly and in great detail apprised defendant of the perils and pitfalls of proceeding pro se and went to great lengths to dissuade defendant from doing so. Specifically, County Court cautioned defendant that, while he may have been well versed with the facts of his case, “[t]he practice of law [was] not a simple process” and entailed education and experience that defendant did not possess. County Court went on to note the then-impending testimony of the People’s handwriting and DNA experts and suggested that defendant consider the legal expertise that counsel could bring to examining those witnesses. Additionally, County Court advised defendant that, if he proceeded pro se, he would be held to the same standard as an attorney and would be responsible for the “day-to-day operation of the [trial],” which would include making appropriate objections and motions, cross-examining the People’s witnesses, conducting his defense and preparing a summation. In this regard, County Court expressly warned defendant that his ability to introduce certain evidence or effectively argue any applicable motions likely would be hampered by his lack of legal training, and defendant was afforded ample opportunity to consider (and reconsider) his request and to discuss the matter with counsel.
To be sure, County Court’s inquiry could have been more seamless, but the Court of Appeals has expressly rejected a strict, formulaic approach in this regard, requiring only that the record as a whole “affirmatively disclose that a trial court has delved into a defendant’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver” … . People v Dashnaw, 2014 NY Slip Op 02624, 3rd Dept 4-17-14
The Third Department determined that stopping the defendant, asking him questions, patting him down, and searching a nearby vehicle (in which a loaded firearm was found) were supported by what the officer was told by persons who had just flagged down the officer. The officer (Van Allen) was told the defendant had threatened one of the persons who flagged him down with a weapon and the defendant had been driving the van that was subjected to the warrantless search. Subsequently, the defendant told the officer “I am thinking of talking to an attorney,” after which the office stopped questioning him. Later, when the defendant told the officer he wished to speak with him, and the officer asked if he was willing to answer questions without an attorney present, the defendant said “yes.” The Third Department determined, in part because the officer interpreted defendant’s statement that he was thinking about talking to an attorney as a request for an attorney, the defendant’s subsequent statement should have been suppressed:
Phrases such as “I think” or “maybe” do not necessarily establish that a request for counsel is uncertain or equivocal … . The relevant inquiry is whether a reasonable police officer would have understood the statement in question as a request for an attorney … . Although this is an objective standard, the fact that an officer did, in fact, treat a defendant’s request as an assertion of the right to counsel is properly taken into account in assessing what a reasonable police officer would have believed … . Here, despite the allegedly sarcastic tone of defendant’s initial statement, VanAllen indicated that he understood it as a request for counsel by promptly ceasing his inquiries. Further, when VanAllen later twice asked whether he had requested counsel, defendant confirmed without any equivocation that he had. Under these circumstances, a reasonable police officer would have understood that defendant had asserted his right to counsel … . Accordingly, defendant’s alleged waiver was ineffective, and his statements following the initial request should have been suppressed. People v Jemmott, 2014 NY Slip Op 02630, 3rd Dept 4-17-14
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