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Judge’s Statement Defense Counsel Should Confine Her Opening to What She Intended to Prove, Under the Facts, Did Not Shift Burden of Proof

The Second Department determined the trial judge’s admonition to defense counsel to confine her opening statement to what she intended to prove did not shift the burden of proof:

Contrary to the defendant’s contention, the Supreme Court’s admonitions to defense counsel to confine her opening statement to what she intended to prove did not shift the burden of proof. The court thoroughly instructed the jury that the defense did not have to make an opening statement, that the burden of proof remained with the People, and that the defendant had no burden … . Furthermore, the court’s comments did not prevent defense counsel from completing her opening statement, or overly restrict her opening statement … . Under the circumstances of this case, there is no realistic view that the court’s remarks could be interpreted so as to skew the burden of proof .. . The court’s remarks were brief, isolated, and innocuous in context … . People v Robles, 2014 NY Slip Op 02960, 2nd Dept 4-30-14

 

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Defendant’s Motion to Vacate His Conviction Should Not Have Been Denied Without a Hearing On the Ground It Was Untimely/The Motion Raised Legal Grounds for Relief (Evidence Withheld at Trial) and There Is No Time Limit for a Motion to Vacate a Conviction Pursuant to CPL 440.10

The Second Department determined defendant’s motion to vacate his conviction should not have been denied without a hearing on the ground it was untimely.  Defendant had raised substantive, supported claims that Brady and Rosario material had not been turned over to him at trial.  The Second Department noted there is no time limit for bringing a motion to vacate a conviction pursuant to Criminal Procedure law section 440.10:

…[T]he defendant’s moving papers allege a ground constituting legal basis for the motion, i.e., that “[i]mproper and prejudicial conduct not appearing in the record occurred during a trial resulting in the judgment which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom” (CPL 440.10[f]). The County Court erred in denying the motion on the ground that the defendant unduly delayed making the allegations of Brady and Rosario violations, as “[t]here is no time limit on the filing of CPL 440.10 motions” … . Further, the moving papers were sufficient to establish entitlement to a hearing … . People v Taylor, 2014 NY Slip Op 02964, 2nd Dept 4-30-14

 

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Evidence of Gang Membership Properly Admitted to Show Motive for Assault

The Second Department determined evidence of defendant’s membership in a gang, including expert evidence, was properly admitted in light of defense counsel’s argument defendant had no motive to assault correction officers.  People v Murray, 2014 NY Slip Op 02957, 2nd Dept 4-30-14

 

Detective’s Strongly Urging Defendant to Make a Statement Did Not Render Statement Involuntary

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

 

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Defendant Entitled to Hearing Re: Whether His Counsel Was Ineffective For Failing to Communicate an Earlier, More Lenient Plea Offer

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

 

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Show-Up Identification Procedure Unduly Suggestive

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

 

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Officer Had No Legitimate Reason for Initial Approach of Defendant’s Vehicle–Suppression Granted and Indictment Dismissed

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

 

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Defendant’s Statement that He Was Thinking About Talking to an Attorney, Coupled With the Officer’s Interpretation of that Statement as a Request for Counsel, Rendered Invalid Defendant’s Subsequent Agreement to Speak with the Officer without an Attorney Present

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

 

Displaying What Appeared to Be a Firearm to Someone Other than the Robbery Victim During Flight from the Robbery Scene Supported Second Degree Robbery Conviction

After noting that merely telling the cashier he had a gun was not enough to meet the criteria for displaying a firearm in the course of a robbery, the Third Department determined that defendant’s “displaying” of what “appeared to be” a firearm to someone other than the victim of the robbery, as he was fleeing from the store he robbed, was sufficient to support his conviction for robbery in the second degree:

To prove the display element, “[t]he People must show that the defendant consciously displayed something that could reasonably be perceived as a firearm, with the intent of forcibly taking property, and that the victim actually perceived the display” … . While the object displayed need not in fact be a firearm …, “it must appear to the victim by sight, touch or sound that he [or she] is threatened by a firearm” …. The display requirement “cannot be read so broadly as to include mere statements that a robber is armed with a gun” … . While such statements can give meaning to a robber’s otherwise ambiguous actions, such as “a hand consciously concealed in clothing” …, “words alone will not constitute a display of what appears to be a firearm” … .

Here, the cashier testified that defendant said the word “gun” when demanding that she turn over the money, but she did not testify to witnessing any action on his part that would constitute a display of a firearm, nor did she testify that she believed he possessed a firearm. Thus, her testimony is insufficient to establish that defendant displayed a firearm during the robbery. But the inquiry does not end there. Although several cases address the issue as whether the victim perceived the gun …, the statute does not mention to whom the apparent weapon must be displayed (see Penal Law § 160.10 [2] [b]; …). The language of the statute — namely, that the display can occur in the course of “immediate flight” from the robbery and not just during the commission thereof — implies that the display may be directed at an individual other than the victim of the robbery, with the implication that the apparent weapon must be displayed for the purpose of allowing the defendant to deter someone from attempting to either recover possession of the stolen property or impede the defendant’s escape (Penal Law § 160.10 [2] [b]). People v Colon, 2014 NY Slip Op 02626, 3rd Dept 4-17-14

 

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Temporary Restraining Order Prohibiting Broadcast About a Murder of Which Plaintiff Was Convicted Constituted Impermissible Prior Restraint of Speech

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

 

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