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Defendant Entitled to Hearing on Motion to Vacate His Conviction (by Guilty Plea) Based Upon Defense Counsel’s Alleged Failure to Inform Him of the Risk of Deporatation

The Second Department determined defendant was entitled to a hearing on his motion to vacate his conviction. Defendant presented sufficient evidence to warrant a hearing about whether his attorney’s alleged failure to inform him that his guilty plea could result in deportation constituted ineffective assistance of counse under Padilla v Kentucky, 559 US 356.  The court explained the analytical criteria:

“In order to prevail on a claim that, prior to deciding whether to plead guilty, a defendant was deprived of the right to the effective assistance of counsel under the United States Constitution, he or she must meet the two-part standard set forth in Strickland v Washington … . “Under the first prong of that standard, the defendant must show that counsel’s representation fell below an objective standard of reasonableness'” … . “The second prong focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process'” … . * * *

In Padilla, the Supreme Court held that the Sixth Amendment to the United States Constitution requires an attorney for a criminal defendant to provide advice to the defendant about the risk of deportation which will arise as a result of a plea of guilty … . Thus, in those cases in which Padilla is applicable, “where an attorney fails to advise a criminal defendant, or misadvises the defendant, regarding clear removal consequences of a plea of guilty, his or her representation falls below an objective standard of reasonableness” … . * * *

“To satisfy the second prong of the Strickland standard, also known as the prejudice prong, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial” … . “In the context of a Padilla claim, the defendant must convince the court that a decision to reject the plea bargain would have been rational under the circumstances'” … . Under the particular circumstances of this case, the defendant established, sufficiently to warrant an evidentiary hearing, that a decision to reject the plea bargain would have been rational.  People v Varenga, 2014 NY Slip Op 01472, 2nd Dept 3-5-14

 

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Testimony of Defense Expert About Reliability of Eyewitness Identifications Properly Precluded/Criteria for Such Testimony Explained

The Second Department determined Supreme Court appropriately denied the defendant’s request to present expert testimony about the reliability of eyewitness identifications because there was sufficient corroborating identification evidence.  The court explained the relevant criteria:

Where a case “turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror” … . Here, there was sufficient corroborating evidence connecting the defendant to the crimes to obviate the need for expert testimony, including, inter alia, independent identifications by two witnesses other than the three complainants, surveillance videos, and the defendant’s incriminatory statements to police officers … . People v Rhodes, 2014 NY Slip Op 01469, 2nd Dept 3-5-14

 

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Statements to Police Officer by Victim at the Scene Were “Nontestimonial” and Were Admissible as Excited Utterances

The Third Department determined a police officer’s testimony about what the assault victim, Stokes, said at the scene and a video of the officer’s encounter with the victim did not violate the defendant’s right to confront witnesses because the admitted statements were “nontestimonial” and “excited utterances.” Stokes had died before the trial:

The officer testified that Stokes said that she had been hit in the head with a bat, described her assailant, and said that he was in a nearby community center. The officer further testified that police then began looking for defendant. The video reveals that the officer encountered Stokes immediately upon arriving at the scene. She was bleeding profusely from her head and complaining of dizziness. The officer asked Stokes about her assailant’s location, description and name, where the attack had occurred, and whether there were other victims, promptly relaying her answers to other police officers and emergency medical personnel who were dispatched to locate and assist Moore and pursue defendant. After the first few minutes, the officer asked no further questions about the incident, concentrating instead on attempting to calm Stokes as she became increasingly agitated and apprehensive about, among other things, the fact that defendant had not been found. County Court correctly determined that the statements by Stokes were admissible as excited utterances … . Further, we find no constitutional violation. The video reveals that the officer’s primary purpose in questioning Stokes was “to enable the police to meet an ongoing emergency and apprehend the perpetrator, not to provide evidence for later prosecution,” and Crawford [541 US 36} does not preclude such nontestimonial statements…. People v Anderson, 105060, 3rd Dept 2-27-14

 

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Post-Conviction DNA Test Results Warranted New Trial Under 2012 Amendment to CPL 440.10

The First Department determined defendant was entitled to a new trial based on DNA evidence which was not analyzed until after the defendant was convicted. The DNA collected from under the victim’s fingernails did not match the defendant’s. The defendant’s conviction was based solely on the victim’s identification of the defendant made three weeks after she was attacked. The defendant had produced an alibi witness at his trial. The court explained the application of the recent amendment of Criminal Procedure Law 440.10:

Pursuant to CPL 440.10(1)(g-1), which became effective October 1, 2012, the court may grant a defendant’s motion to set aside the judgment when forensic DNA testing is performed after the entry of judgment upon a conviction and “the court has determined that there exists a reasonable probability that the verdict would have been more favorable to the defendant.” Unlike a motion under CPL 440.10(1)(g), a defendant relying on the results of DNA testing no longer has to show that the results of such testing is newly discovered evidence in order to seek vacatur of a judgment of conviction. The defendant only has to show that there is a reasonable probability that he would have obtained a more favorable verdict. The newly amended statute, permitting relief at any time after the entry of judgment, applies to this case… . People v Hicks, 2014 NY Slip Op 01376, 1st Dept 2-27-14

 

“Rubbing” Constitutes “Forcible Touching”

In a full-fledged opinion by Judge Read, the Court of Appeals determined that the allegation defendant “rubbed” his exposed penis on a subway passenger’s buttocks was sufficient to meet the pleading requirements for “forcible touching” in violation of Penal Law 130.52:

…[W]e hold that, when done with the relevant mens rea, any bodily contact involving the application of some level of pressure to the victim's sexual or intimate parts qualifies as a forcible touch within the meaning of Penal Law § 130.52. The allegation in the information here easily meets this test. People v Guaman, 29, CtApp 2-25-14

 

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No “Exigent Circumstances”/Warrantless Search of Defendant’s Purse Incident to Arrest for Trespassing Not Justified

In a full-fledged opinion by Judge Lippman, over a partial dissent, the Court of Appeals determined the “exigent circumstances” exception to the warrant requirement did not apply and, therefore, the search of defendant’s purse incident to a “trespassing” arrest was not justified. The loaded handgun in the purse should have been suppressed. The court explained the relevant law:

Under the State Constitution, to justify a warrantless search incident to arrest, the People must satisfy two separate requirements. The first imposes spatial and temporal limitations to ensure that the search is “not significantly divorced in time or location from the arrest” … .The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances … . We have recognized two interests underlying the exigency requirement: “the safety of the public and the arresting officer; and the protection of evidence from destruction or concealment” … . Exigency must be affirmatively demonstrated. Accordingly, even a bag “within the immediate control or 'grabbable area' of a suspect at the time of his arrest may not be subjected to a search incident to arrest, unless the circumstances leading to the arrest support a reasonable belief that the suspect may gain possession of a weapon or be able to destroy evidence located in the bag” … . People v Jimenez, 23, CtApp 2-25-14 

 

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Counsel’s Failure to Object to Prosecutor’s PowerPoint Presentation Did Not Require Reversal for Ineffective Assistance

In a full-fledged opinion by Judge Pigott, over a dissent, the Court of Appeals determined that defense counsel’s failure to object to a PowerPoint presentation used by the prosecutor in summation did not require reversal. During the presentation, the postmortem image of the child, Justice (whom the defendant was accused of suffocating), faded to white at 30-second intervals over six minutes:

Defendant does not dispute that the postmortem photograph itself was properly admitted at trial … . The slides depicting an already admitted photograph, with captions accurately tracking prior medical testimony, might reasonably be regarded as relevant and fair, albeit dramatic, commentary on the medical evidence, and not simply an appeal to the jury's emotions. The jury was being asked to decide not only whether defendant killed Justice, but also whether she intended to do so, an issue to which the question of how long she would have had to cover Justice's mouth and nose was certainly relevant. On the other hand, the relevance of the visual device whereby the postmortem picture faded at 30-second intervals over a six-minute period – with each slide fading more and more to white, and the final slide appearing totally white – is difficult to discern. This did not show how Justice's death occurred nor would it have aided the jury in its fact-finding function.If the issue had been preserved for our review by timely objection – and had the trial court ruled against defendant and the issue reached our Court – this Court would have had the opportunity to decide whether the trial court abused its discretion and the error required a reversal of the judgment of conviction. But that did not occur and the objection to the PowerPoint presentation that defendant now raises is not so “clear-cut” or “dispositive” an argument that its omission amounted to ineffective assistance of counsel… . People v Santiago, 22, CtApp 2-25-14

 

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Defendant Implicitly and Explicitly Waived His Right to Be Present During Side-Bar Conferences

In a full-fledged opinion by Judge Smith, over a dissent, the Court of Appeals determined defendant had implicitly and explicitly waived his right to be present during side-bar conferences (the “Antommarchi” right). The implicit waiver was the defendant’s inaction after the trial judge informed him he was welcome to attend the side-bar conferences. And the explicit waiver was defense counsel’s statement to the judge, which was made outside the hearing of the defendant, that the defendant has waived his right to attend the conferences:

Defendant waived his Antommarchi right both implicitly and explicitly. He did so implicitly when, after hearing the trial judge say that he was “welcome to attend” the bench conferences, he chose not to do so. And he waived it explicitly by his lawyer’s statement to the court. People v Flinn, 20, CtApp 2-25-14

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Questioning of Defendant Did Not Constitute “Custodial Interrogation”

The Third Department determined County Court should not have suppressed defendant’s statements as the product of custodial interrogation. The police investigation had led to defendant’s IP address being associated with accessing child pornography on the Internet. The investigator went to defendant’s place of employment and asked the defendant to accompany him to the police station, which the defendant agreed to do:

The testimony … revealed that defendant was brought to a room at the police station where he was interviewed for a total of no more than 30 minutes. During the brief period that preceded the Miranda warnings, defendant was not handcuffed or restrained in any manner and the investigators did not do anything to convey that defendant was not free to leave … . Moreover, the two questions that preceded the Miranda warnings – the first asked defendant for his address and the second inquired into defendant’s Internet service – were investigatory, as opposed to accusatory. Considering the totality of the circumstances, and in light of County Court’s determinations that [the interrogating officer] was “frank, candid, and trustworthy and [that] his testimony had the general force and flavor of credibility,” we find that the People met their burden of establishing beyond a reasonable doubt that defendant’s pre-Miranda statements were not the product of a custodial interrogation… . People v Henry, 106048, 3rd Dept 2-20-14

 

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No Prosecutorial Misconduct Where Prosecutors Told the Grand Jury that the Witness Defendant Asked the Grand Jury to Call Would Not Provide Relevant Evidence/Prosecutor’s Role in Grand Jury Explained in Some Detail

In a full-fledged opinion by Judge Abdus-Salaam, over a dissent, the Court of Appeals determined the prosecutors did not impair the integrity of the grand jury proceedings by suggesting a witness the defendant asked the grand jury to subpoena would not provide relevant testimony. The court explained the prosecutor’s role in the grand jury:

CPL article 190 governs the conduct of the grand jury and the parties which appear before that body, and it requires that all grand jury proceedings remain secret to protect the essential functions of those various actors (see generally CPL 190.05; 190.25 [4] [a]). Under this statutory regime, the exclusive “legal advisors of the grand jury are the court and the district attorney” (CPL 190.25 [6]), and their decision to present certain items of evidence and to exclude others is for the most part limited only by the rules of evidence applicable at trial (see CPL 190.30 [1]…).  In the same vein, the prosecutor enjoys “broad powers and duties, as well as wide discretion in presenting the People's case” to the grand jury … . Indeed, the prosecutor “determines the competency of witnesses to testify,” and he or she “must instruct the jury on the legal significance of the evidence” … .

Notably, though, due process imposes upon the prosecutor a “duty of fair dealing to the accused and candor to the courts,” thus requiring the prosecutor “not only to seek convictions but also to see that justice is done” … . This duty extends to the prosecutor's instructions to the grand jury and the submission of evidence … . The prosecutor also cannot provide “an inaccurate or misleading answer to the grand jury's legitimate inquiry” …, nor can the prosecutor accept an indictment that he or she knows to be based on false, misleading or legally insufficient evidence … .

Even under those principles, “[a] Grand Jury proceeding is not a mini trial, but a proceeding convened primarily to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to a criminal prosecution” … . That being so, the prosecutor need not tread too lightly in pressing the People's case or rebutting the defendant's assertions. For example, where the defendant chooses to testify, the prosecutor may, within limits, ask probing or even skeptical questions of the defendant about issues raised by his or her testimony … . Similarly, in the role of legal advisor, the prosecutor need not instruct the grand jury on the full extent of its investigatory and deliberative powers … . The prosecutor may decline to instruct the grand jury about a variety of defenses, and he or she need not disclose certain forms of exculpatory evidence or reveal to the grand jury the circumstances surrounding the authorities' investigation of the case … . These examples illustrate that, in occupying a “dual role as advocate and public officer” … , the prosecutor is not obligated to present the evidence or make statements to the grand jurors in the manner most favorable to the defense. People v Thompson, 10, CtApp 2-20-14

 

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