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Court Properly Allowed Defendant to Proceed Pro Se Three Weeks Into His Murder Trial

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

 

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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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Proceedings Pursuant to CPL 440.10 Required to Determine Whether Defense Counsel Was Ineffective for Failing to Move to Reopen the Suppression Hearing When Trial Evidence Called Into Question the Arresting Officer’s Credibility

The First Department, over a dissent, found that  the trial record was insufficient to determine whether defendant’s counsel was ineffective for failing to ask to reopen a suppression hearing when the trial evidence called into question the arresting officer’s credibility.  The conviction was affirmed without prejudice and the matter was sent back for further proceedings under a motion to vacate the conviction pursuant to CPL 440.10:

The issue of effective assistance of counsel is generally not reviewable on direct appeal, because it involves facts dehors the record, such as trial counsel’s strategy … . Accordingly, a defendant who seeks to bring an ineffective assistance of counsel claim usually must first expand the record by way of a CPL 440.10 motion before this Court can consider it … . However, there are rare instances where the full record is sufficient to resolve the issue of counsel’s effectiveness without a 440.10 motion … . This is not one of those rare cases.  * * *

The extant record potentially supports a finding that counsel fundamentally misunderstood the necessity of making the motion to reopen the suppression hearing during trial, rather than waiting for a motion to set aside the verdict, in the event of a conviction. Defense counsel’s remarks at sentencing, seemingly prompted by the court’s denial of the motion to set aside the verdict, were a belated attempt to explain counsel’s failure to move to reopen the hearing. Whether defense counsel was effective or not necessarily requires an evaluation of the credibility and logic of the proffered explanation, that defense counsel was afraid he would “lose that jury” and that he believed the witness “was on the ropes.” Although defense counsel may have genuinely been hopeful that the jury would acquit his client, this explanation cannot be accepted at face value. After all, as the trial court’s decision indicates, had defense counsel timely moved to reopen the suppression hearing, the application would have been granted, and the court could have quickly ruled upon it while giving the jury a short recess. The “witness” referred to was the arresting officer, and was available. On the other hand, there may have been legitimate concerns about the jury undeveloped on this record. In short, we cannot decide on the extant record whether defense counsel’s failure to move to reopen the hearing was truly “strategic.”  People v Medina-Gonzalez, 2014 NY Slip Op 02531, 1st Dept 4-15-14

 

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Eviction Based Upon Firearm and Drugs Found in Petitioner’s Apartment Affirmed Despite the Lack of Evidence Petitioner Was Aware the Items Were In the Apartment (Apparently They Were Brought Into the Apartment by Her Older Children) and Despite Petitioner’s Unblemished Record as a Tenant

The First Department reversed Supreme Court and upheld the New York City Housing Authority’s eviction of petitioner based upon the police finding marijuana, oxycodone and an operable firearm in petitioner’s apartment.  Petitioner was not in the apartment at the time the items were found, and there was evidence the items were brought into the apartment by petitioner’s older children.  There was no evidence petitioner was aware the items were in the apartment.  Supreme Court had determined eviction “shocked the conscience” because petitioner had lived in the apartment for 23 years and had an otherwise unblemished record.  The First Department reinstated the eviction order:

…[W]e review the sanction of termination in accordance with the standard set forth in Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County (34 NY2d 222 [1974]). There, the Court of Appeals defined a penalty that is unsustainable as “shocking to one’s sense of fairness” as one which

“is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly [situated]” (34 NY2d at 234).

Applying this standard, we find that the facts here support petitioner’s eviction. Eviction is undoubtedly a “grave” sanction. However, in permitting drugs and a lethal weapon to be present in her apartment, petitioner committed a serious breach of the code of conduct that is critical to any multiple dwelling community, and which warrants the ultimate penalty … . Petitioner’s neighbors have a right to live in a safe and drug-free environment, and petitioner significantly compromised their ability to do so, her alleged ignorance of the activities in her apartment notwithstanding … . Matter of Grant v New York City Hous Auth, 2014 NY Slip Op 02535, 1st Dept 4-15-14

 

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Brazilian Citizens Had Alternative Legal Remedies and Therefore Could Not Use a Writ of Prohibition to Stop a New York Prosecution/The Fact that the Petitioners Would Have to Come to New York to Employ the Alternative Remedies During the Course of a Criminal Prosecution Did Not Render those Remedies Inadequate

The First Department determined a writ of prohibition could not be employed by Brazilian citizens to stop a prosecution by the district attorney.  Petitioners had other legal remedies including pretrial motions and appeal if convicted.  The fact that petitioners would have to defend the prosecution in New York to use the alternative remedies did not render those remedies inadequate:

In this action for a writ of prohibition directing the DA to stay the prosecution of petitioners, Brazilian citizens (the former mayor of Sao Paolo and his son) who have been indicted in New York for crimes relating to the theft of more than $11 million in Brazilian public funds that were allegedly transferred to petitioners’ account in a bank located in New York, the petition was properly denied. The extraordinary remedy of prohibition is not available to petitioners, who assert that the underlying criminal action violates their statutory and constitutional rights to a speedy trial and their right to due process, or, in the alternative, that the indictment should be dismissed either in furtherance of justice pursuant to CPL 210.40(1) or under principles of international comity. These claims allege errors of law for which petitioners have adequate alternative remedies, including filing pretrial motions in the underlying criminal action and challenging any conviction on appeal … . That petitioners would have to voluntarily leave their home country to appear for arraignment since Brazil will not extradite its own citizens before availing themselves of such remedies does not render them inadequate … . Matter of Naluf v Vance, 2014 NY Slip Op 02546, 1st Dept 4-15-14

 

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No Justification for Handcuffing Defendant/Handcuffing Constituted an Arrest Before Officer Had Probable Cause to Arrest

The First Department determined probable cause for defendant’s arrest did not exist when defendant was handcuffed and the act of handcuffing constituted an arrest, not a detention pending information providing probable cause:

During a buy and bust operation, a ghost undercover detective issued a radio transmission identifying defendant as a participant in a drug sale, made to another undercover officer. Based on that radio transmission describing defendant and his location, a third officer approached defendant on the sidewalk, identified himself, and asked defendant to put his hands up. When defendant acted “a little resistant,” the officer attempted to handcuff him. Defendant then resisted, and the police forcibly handcuffed him.

The suppression court [ruled] that although when the officer stopped the defendant, he did not have probable cause to arrest him based on the information that he had received from the radio transmission, the officer obtained probable cause to arrest defendant after the purchasing undercover officer subsequently radioed his confirmatory identification. …[By] finding that there was no probable cause to arrest defendant until the confirmatory identification, the court implicitly found that the initial apprehension, which preceded that identification, was a proper temporary detention based on reasonable suspicion and that the application of handcuffs on defendant did not transform the detention into a full-scale arrest.

…[W]e reject the People’s argument that defendant was not under arrest at the point when he was handcuffed. Although the use of handcuffs is not dispositive of whether an investigatory detention on reasonable suspicion has been elevated to an arrest, handcuffing is permissible in such a detention only when justified by the circumstances … . In this case, the police had no reason to believe that defendant was either armed or dangerous. Nor was there any indication on the record that defendant offered any resistance prior to the handcuffing, or gave the police any reason to believe that he might flee. People v Blanding, 2014 NY Slip Op 02508, 1st Dept 4-10-14

 

Unauthorized Use of Another’s Credit Card Number Is Not Identity Theft Where the Card Owner’s Identity Is Not Otherwise Assumed/Unauthorized Use of Another’s Credit Card Number Can Constitute Possession of Stolen Property

The First Department, in a full-fledged opinion by Justice Acosta, determined: (1) the use of another’s credit card number does not constitute identity theft unless the person using the number assumes the other’s identity; and (3) the use of another’s credit card number constitutes possession of stolen property: THIS CASE HAS BEEN REVERSED

This appeal raises questions about the elements of identity theft and whether intangible property can be criminally possessed, where a defendant used his associate’s credit card number to pay for hotel expenses without authorization. Specifically, we are called upon to determine, first, whether assumption of identity is a discrete element of identity theft or whether it occurs automatically when a person uses another’s personal identifying information, and second, whether criminal possession of stolen property includes intangible property, namely a credit card number. Regarding the first issue, we find that to secure a conviction for identity theft the People must prove not only that a defendant used another’s personal identifying information, but that he or she consequently assumed the identity of that person. Because the hotel was aware of defendant’s identity, he did not assume the identity of his associate by charging the credit card and, accordingly, the evidence was legally insufficient to support his conviction of identity theft. As to the second issue, we have determined that the legislature intended intangibles, including credit card numbers, to fall within the ambit of criminal possession of stolen property. Defendant constructively possessed his associate’s stolen credit card number, and thus he was properly convicted of the latter offense. People v Barden, 2014 NY Slip Op 02527, 1st Dept 4-10-14

 

Courtroom Properly Closed During Testimony of Undercover Office

The First Department determined the trial court properly closed the courtroom and excluded defendant’s sister from the courtroom during the testimony of  the undercover officer:

…[T]he evidence established the type of overriding interest warranting the limited closure of the courtroom that has been upheld … . The undercover officer’s testimony at the hearing supported the court’s finding that testifying at trial in an open courtroom would compromise his undercover work and jeopardize his and his family’s safety … . The officer testified that he had been working undercover for four years, that he was on active duty and bought drugs for buy and bust arrests three or four times per week, and that he had made about 10 purchases near where he bought the drugs from defendant. The officer further testified that several of his investigations were ongoing, that certain targets remained at large, that he had been verbally threatened while working undercover, and that he took numerous precautions to conceal his identity when he had to testify in court. The court’s decision to exclude defendant’s sister, who lived within two blocks of the location where the officer bought drugs from defendant and where he continued to work undercover, is consistent with our prior holdings … . The officer testified that he was concerned that defendant’s sister might expose his identity. * * *

…[A]s the Court of Appeals has held, where the record in a buy-and-bust case “makes no mention of alternatives but is otherwise sufficient to establish the need to close the particular proceeding . . . it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest” … . People v Johnson, 2014 NY Slip Op 02510, 1st Dept 4-10-14

 

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Intent Must Exist Simultaneously with the Act/Accidental Discharge of a Firearm, Even Where the Shooter Intends to Assault the Victim, Does Not Constitute Intentional Assault/Loss of Police Officer’s Handwritten Notes Did Not Mandate Adverse Inference Jury Charge—Insufficient Showing of Prejudice

The First Department determined the trial court did not give the right response to a question from the jury and reversed the intentional assault conviction.  The jury asked whether a person who intends to commit assault is guilty of intentional assault if the gun goes off accidentally.  The trial court answered “yes.”  The First Department determined the answer should have been “no” because the intent must be simultaneous with the act.  The First Department further determined that the loss of the police officer’s handwritten notes was a Brady/Rosario violation, but the defendant failed to demonstrate prejudice flowing from the loss:

We agree with defendant that the court’s response erroneously allowed the jury to find defendant guilty of intentional assault without finding that the intent element of that crime existed beyond a reasonable doubt. “It is a well-established rule of law that the intent to commit a crime must be present at the time the criminal act takes place” … . The intent element is not satisfied if, as in the jury’s hypothetical, the individual does not intend to pull the trigger at the moment the gun discharges. While those facts might have supported liability for a crime requiring a lesser mens rea than acting intentionally, defendant here was not charged with such a crime. Because the court’s response to the jury’s note incorrectly signaled that an accidental firing of the gun could support a conviction for intentional assault, the conviction on that count must be reversed. People v Lee, 2014 NY Slip Op 02507, 1st Dept 4-10-14

 

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