You are here: / Criminal Law

Denial of For Cause Juror Challenges Required Reversal

After determining one of the counts of the sex-offense indictment must be dismissed as duplicitous because more than one offense was alleged to have taken place during the  time period described in the count, the Third Department reversed defendant’s conviction finding that for cause challenges to jurors should have been granted:

It is well established that “a prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial” … . When a juror’s impartiality is in doubt, it is the court’s obligation to make further inquiries and to excuse the juror if the doubt is not fully dispelled … . In this respect, the court should err on the side of disqualification, as “the worst [it] will have done in most cases is to have replaced one impartial juror with another impartial juror” (…see CPL 270.20 [1] [b]; [2]…). Conversely, the denial of a challenge for cause to a biased juror calls fundamental fairness into question and “casts a doubt on the legitimacy of the verdict even before the trial begins” … .Here, one juror stated that his job experience as a correction officer “might” affect his ability to be impartial; when asked whether his employment would prevent him from applying “basic principles” granting certain rights to defendant, he responded, “It may.” A second juror said that her husband’s employment in law enforcement “could” cause her to give greater weight to a police officer’s testimony, and a third juror said that he could not “guarantee” that he would follow an instruction not to grant greater weight to such testimony. A fourth juror stated that her husband’s work as a sheriff’s deputy would”[p]ossibly” cause her to hesitate in providing defendant his constitutional protections; she further confirmed that she would be reluctant to apply the presumption of innocence. A fifth juror said that she believed that children who accused parents of sexual abuse could not lie, and a sixth juror agreed with other jurors that it was “highly unlikely” that a child would lie about this subject, and that it was probable that such a charge must be true because of its seriousness. Finally, a seventh juror expressed doubt when asked whether she would draw an adverse inference from a defendant’s choice not to testify, explaining that “it brings the question up why wouldn’t you[?]” Although she stated that she would follow the judge’s instructions in this regard, she added that she could not “control myself to take something that’s already in my mind away.” The prosecutor advised County Court that at least one of these jurors required rehabilitation because of such expressions of uncertainty, stating that “there should be inquiry from the court. “Nevertheless, the jurors were not questioned further, and none made “unequivocal assertion[s] of impartiality”… . People v Russell, 105083, 3rd Dept 4-3-14

 

,

Failure to Challenge Conviction Rendered Invalid by Not Advising Defendant of the Period of Post Release Supervision [PRS] Constitutes Ineffective Assistance of Counsel

The First Department determined the defendant did not receive effective assistance of counsel when he was sentenced as a predicate felony offender.  Counsel failed to challenge a 2000 conviction upon a guilty plea which was invalid because defendant was not apprised of the period of post release supervision (PRS) which was subsequently imposed. The fact that the PRS was later removed from the sentence did not cure the error because the defendant had already served four years of PRS and had spent time in jail for a violation of supervision:

In connection with the 2000 conviction, Supreme Court, New York County added postrelease supervision to the sentence in 2009 to cure an unlawful administrative imposition of PRS … . In May, 2010 that court removed PRS from the sentence in accordance with People v Williams (14 NY3d 198 [2010]). Contrary to the People’s sole argument on appeal addressing the Catu issue [the initial failure to advise defendant of the period of post release supervision], the vacatur of defendant’s PRS could not cure the Catu error, or give defendant the benefit of his plea, since at the time of the vacatur he had already served four years of PRS, and had also spent time in jail in violation of that supervision. …

In connection with the instant CPL 440.20 motion [motion to vacate the sentence], the attorney who represented defendant at his 2010 persistent violent felony offender adjudication and sentencing acknowledged that he had no strategic reason for failing to challenge the 2000 conviction, and that he never inquired into whether defendant had been advised about PRS at his 2000 plea proceeding. He further affirmed that had he been aware that the conviction was obtained in violation of Catu, he would have in fact challenged its use to enhance defendant’s sentence in this case. Thus, this was not a case where an attorney may have reasonably believed that it would have been futile to raise a Catu issue regarding the constitutionality, for predicate felony purposes, of defendant’s 2000 conviction, or that the law was unclear on this issue… .  People v Fagan, 2014 NY Slip Op 02344, 1st Dept 4-3-14

 

Questioning of Witnesses by Trial Judge Did Not Deprive Defendant of a Fair Trial

The First Department, in a full-fledged opinion by Justice Andrias, determined that the participation of the judge in the questioning of witnesses did not rise to the level of depriving the defendant of a fair trial:

The guarantee of a fair trial does not “inhibit a Trial Judge from assuming an active role in the resolution of the truth” … . Thus, a trial judge is permitted “to question witnesses to clarify testimony and to facilitate the progress of the trial,” and, if necessary, to develop factual information … . However, a judge may not “take [] on either the function or appearance of an advocate at trial” … .

The “substance and not the number of questions asked is the important consideration” … . Even if a trial judge makes intrusive remarks that would better have been left unsaid, or questions witnesses extensively, the defendant is not thereby deprived of a fair trial so long as the jury is “not prevented from arriving at an impartial judgment on the merits” … . Notably, although the exercise of a trial court’s power to question witnesses should be exercised “sparingly” …, “in the case of expert testimony, the court’s intervention is often necessary to assist the jurors in comprehending matters of specialized knowledge” … , and the trial judge is afforded greater leeway.

The record before us establishes that the trial court did not take on the function and appearance of an advocate. * * *

Furthermore, although it is true that a “claim that the intrusion of the Trial Judge deprived [the defendant] of his constitutional right to a fair trial is not subject to harmless error analysis” …, the strength or weakness of the evidence may be considered as a factor in determining whether the defendant received a fair trial … .  People v Adams, 2014 NY Slip Op 02349, 1st Dept 4-3-14

 

Purchaser of a Firearm is an Accomplice of the Seller for Corroboration Purposes

The Third Department determined the trial court’s failure to instruct the jury that a witness against the defendant (Lewandowski) was an accomplice as a matter of law (requiring corroboration of his testimony) was reversible error. Lewandowski bought a firearm from the defendant and therefore was an accomplice of the seller for corroboration purposes:

“A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense” (CPL 60.22 [1]). Pursuant to CPL 60.22, an accomplice is a person who “may reasonably be considered to have participated in . . . [t]he offense charged; or . . . [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged” (CPL 60.22 [2] [emphasis added]). Notably, the definition of an accomplice for the purpose of the corroboration rule differs significantly from the definition of an accomplice for purposes of accomplice criminal liability (…compare CPL 60.22 with Penal Law § 20.00). CPL 60.22 broadens the definition of an accomplice “‘in order to provide a more equitable, operable and consistent standard for the courts in determining when the requirement of corroboration is applicable'”… . Thus, to be an accomplice for corroboration purposes, the witness “must somehow be criminally implicated and potentially subject to prosecution for the conduct or factual transaction related to the crimes for which the defendant is on trial” … .

Here, the evidence established that Lewandowski did not have a license to possess the handgun he bought from defendant. Thus, although Lewandowski could not be subject to prosecution for criminal sale of a firearm, he was potentially subject to prosecution for – and was, in fact, charged with – criminal possession of a weapon in the fourth degree since he unlawfully possessed the weapon as soon as he made the purchase (see Penal Law §§ 265.01 [1]; 265.20 [a] [3]). Just as the purchaser in a drug sale is, as a matter of law, an accomplice of the seller for corroboration purposes …, here Lewandowski was an accomplice as a matter of law with respect to defendant’s weapon sale and possession charges since he could have been (and was) charged with a crime “based upon some of the same facts or conduct” upon which the charges against defendant were based (CPL 60.22 [2] [b]…). County Court was therefore required to instruct the jury that Lewandowski was an accomplice as a matter of law as to those charges, and that defendant could not be convicted on Lewandowski’s testimony absent corroborative evidence… . People v Medeiros, 105941, 3rd Dept 4-3-13

 

Trial Court’s Decision to Conduct Trial in Defendant’s Absence Without Consideration of the Factors Mandated for Consideration by the Court of Appeals Required Reversal

The Third Department reversed defendant’s conviction because the trial judge did not consider the appropriate factors before continuing with the trial without the defendant’s presence:

“A defendant’s right to be present in the courtroom during his or her trial is one of the most basic rights guaranteed by the Federal and New York Constitutions, and by statute” … . Even where, as here, “a defendant has waived the right to be present at trial by not appearing after being apprised of the right and the consequences of nonappearance, trial in absentia is not thereby automatically authorized”… . Rather, it must also appear from the record that the trial court considered “all appropriate factors” before proceeding in defendant’s absence, “including the possibility that defendant could be located within a reasonable period of time, the difficulty of rescheduling [the] trial and the chance that evidence will be lost or witnesses will disappear” … . As the Court of Appeals has instructed, “[i]n most cases the simple expedient of adjournment pending execution of a bench warrant could provide an alternative to trial in absentia unless, of course, the prosecution can demonstrate that such a course of action would be totally futile” … .

Here, the record fails to demonstrate that Supreme Court considered any of the appropriate factors. When defendant failed to appear on the morning that trial was scheduled to commence, defense counsel represented to the court that he had no information as to defendant’s whereabouts and requested an adjournment. Supreme Court declined to grant an adjournment, issued a bench warrant for defendant’s arrest and pronounced its decision to proceed immediately to trial. People v June, 105292, 3rd Dept 4-3-14 

 

, ,

Appeals Not Pursued for a Decade or More Properly Dismissed

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined, with respect to three of four defendants, dismissal of the appeals was appropriate. The appeals were not pursued for more than a decade, in one case more than two decades, after the filing of the notices of appeal, and the excuses for inaction were found insufficient.  With respect to the fourth defendant, counsel had never reviewed the record. Therefore, defendant’s right to appellate counsel had not been honored. The matter was sent back for the appointment of appellate counsel and submissions, after which the motion to dismiss the appeal could be properly considered.  People v Perez, 2014 NY Slip Op 02326, CtApp 4-3-13

 

Two Dissenting Justices Found Defendant’s Sentence Excessive Under the Facts

The First Department, over a two-justice dissent, found that the defendant’s application for resentencing under the Drug Reform Act was properly denied.  The decision is notable for the dissents, which forcefully argued defendant’s sentence was harsh and excessive in light of all the facts. People v Lovett, 2014 NY Slip Op 02329, 1st Dept 4-3-14

 

,

Defense Counsel Did Not Provide Effective Assistance

The First Department determined the defendant did not receive effective assistance of counsel.  Counsel did not object to inadmissible hearsay which corroborated the complainant’s testimony, counsel did not subpoena medical records or call a medical expert despite proof at the first trial the evidence of complainant’s injury was unsupported, and counsel did not impeach the complainant by confronting her with her prior inconsistent statements:

in a case that depended heavily on the credibility of the complainant, counsel failed to object to hearsay testimony indicating that several unnamed out-of-court declarants supported the complainant’s version of the incident. These bystander statements were not admissible under any theory, and we reject the People’s arguments to the contrary. These declarations did not qualify as excited utterances, and, under the circumstances of the case, they were not admissible as background information to complete the narrative and explain police actions. At a prior trial, at which defendant was represented by different counsel, and which ended in a hung jury, the content of these declarations was not placed in evidence.

We are unable to discern any strategic basis for counsel’s failure to object to this highly prejudicial hearsay evidence. Any benefit that defendant may have gained when his counsel attempted to suggest that a police witness fabricated the existence of the bystander declarations was clearly outweighed by the prejudicial effect of having the jury hear the declarations in the first place. Defendant had nothing to lose, and much to gain, by keeping the declarations completely out of the case. Furthermore, the trial record reveals that counsel was unaware, and apparently surprised, that the content of these declarations was not in evidence at the first trial. This tends to suggest that counsel’s failure to object had nothing to do with strategy. People v Ugweches, 2014 NY Slip Op 02333, 1st Dept 4-3-14

 

,

Failure to Prove Shared Intent (Accessorial Liability) Required Dismissal of Robbery Counts Under a Weight of the Evidence Analysis

The Second Department, after a weight of the evidence review, determined there was insufficient proof defendant shared the intent to commit the robbery and dismissed the relevant counts of the indictment:

Here, the defendant was convicted of two counts of attempted robbery in the second degree under a theory of accessorial liability. “To sustain a conviction based upon accessorial liability, the evidence . . . must prove beyond a reasonable doubt that the accused acted with the mental culpability necessary to commit the crime charged and that, in furtherance thereof, he solicited, requested, commanded, importuned or intentionally aided the principal to commit such crime'” (…see Penal Law § 20.00…).Upon the exercise of our factual review power (see CPL 470.15), we determine, in the first instance, that acquittal of the charges of attempted robbery in the second degree would not have been unreasonable based upon the evidence presented and, moreover, that the jury failed to accord the evidence the weight it should have been accorded … . The evidence presented at trial did not establish, beyond a reasonable doubt, that the defendant shared the intent to commit robbery, or that he solicited, requested, commanded, importuned, or intentionally aided the principal in committing the offense of attempted robbery in the second degree. Accordingly, the convictions of attempted robbery in the second degree and the sentences imposed thereon must be vacated, and those counts of the indictment must be dismissed … . People v Marchena, 2014 NY Slip Op 02312, 2nd Dept 4-2-14

 

Mischaracterization of a Jury Note Required Reversal

The Second Department determined that the trial court’s mischaracterization of a jury note required reversal:

The Supreme Court mischaracterized the contents of the note to counsel as merely requesting a readback of the elements of the charged offenses rather than as indicating the jury’s apparent erroneous impression that proof of a single element of each crime was sufficient to render a guilty verdict … . In thus mischaracterizing the note, the Supreme Court did not afford defense counsel the opportunity to participate in the formulation of the court’s response to the jury’s confusion. “Since defense counsel was not afforded the opportunity to provide suggestions, [s]he was prevented from participating meaningfully at this critical stage of the proceedings” … . “In the absence of record proof that the trial court complied with its core responsibilities under CPL 310.30, a mode of proceedings error occurred requiring reversal” (People v Tabb, 13 NY3d 852, 853), despite defense counsel’s failure to object to the court’s treatment of the jury note … . Furthermore, meaningful notice of the contents of a jury note must take place on the record … . Accordingly, contrary to the People’s contention, a reconstruction hearing to determine whether counsel was provided with the note off the record would be neither appropriate nor helpful … . People v Giraldo, 2014 NY Slip Op 02309, 2nd Dept 4-2-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy