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Trial Court’s Failure to Properly Characterize the Nature of the Jury’s Request for “Clarification” of Certain Counts Was a Reversible Mode of Proceedings Error

The Second Department determined Supreme Court committed a reversible mode of proceedings error when it mischaracterized the meaning of a jury note.  The note requested clarification of the criminal possession of a weapon counts.  The court explained the note as a request for a readback of the relevant jury instructions:

…[T]he jury requested “clarification on the counts of criminal possession of a weapon in the second degree.” Notwithstanding the foregoing, in the presence of the defendant, counsel, and the jury, the Supreme Court mischaracterized that note as asking “to have read to us the counts of” criminal possession of a weapon in the second degree. In apprising counsel of the contents of that note, the Supreme Court omitted the word “clarification.” The court proceeded to provide the jury with certain legal instructions on the counts of criminal possession of weapon in the second degree. The jury’s request for “clarification” was not a request for a “mere ministerial readback” of the Supreme Court’s charge … . Meaningful notice of a jury’s note “means notice of the actual specific content of the jurors’ request. Manifestly, counsel cannot participate effectively or adequately protect the defendant’s rights if this specific information is not given” … . Under these circumstances, the Supreme Court’s mode of proceedings error requires reversal of the judgment and a new trial (see People v Patterson, 39 NY2d 288, 295-296). People v Thomas, 2014 NY Slip Op 02090, 2nd Dept 3-26-14

 

Plaintiff Sufficiently Raised Issue of “Actual Innocence” in Motion to Vacate His Conviction to Warrant Hearing—Affidavits from Alibi Witnesses Identified Before Trial

The Second Department determined defendant had presented sufficient evidence of “actual innocence” to support his motion to vacate his conviction to warrant a hearing:

…[O]n remittal, the Supreme Court should hold a hearing to address the defendant’s claim that the judgment of conviction should be vacated because the defendant is “actually innocent” of the crimes of which he was convicted (see CPL 440.10[1][h]; People v Hamilton, _____ AD3d _____, 2014 NY Slip Op 00238 [2d Dept 2014]). As we recognized in Hamilton, a prima facie showing of actual innocence is made out when there is ” “a sufficient showing of possible merit to warrant a fuller exploration'”” by the court… . Here, the defendant made the requisite prima facie showing. Specifically, in support of his claim of actual innocence, he submitted affidavits from alibi witnesses who, although they had been identified before trial in a notice of alibi (see CPL 250.20[1]), had not testified at trial. People v Jones, 2014 NY Slip Op 02079, 2nd Dept 3-26-14

 

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Dismissal of Deported Defendant’s Appeal (Without Prejudice) Appropriate Where Defendant’s Continued Participation in the Proceedings Would Be Required Should the Appeal Be Successful

The Second Department determined defendant’s appeal of his motion to vacate his conviction should be dismissed without prejudice because he had been deported and his continued participation in the proceedings would be required if the appeal were successful, distinguishing People v Ventura, 17 NY3d 675, where dismissal was not appropriate because the defendant’s participation in the case was no longer required. People v Harrison, 2014 NY Slip Op 02076, 2nd Dept 3-26-14

 

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Probable Cause to Search Vehicle for a Weapon After Defendant’s Arrest Provided by Identified Citizen Informant

The Fourth Department determined a weapon was properly seized from a vehicle after defendant’s valid arrest based on information from an identified citizen informant:

It is well settled that, “ ‘where police have validly arrested an occupant of an automobile, and they have reason to believe that [it] may contain evidence related to the crime for which the occupant was arrested or that a weapon may be discovered or a means of escape thwarted, they may contemporaneously search the passenger compartment, including any containers found therein’ ” … .Here, as noted, there is no dispute that defendant was lawfully stopped and arrested. Rather, the issue before us is whether the police lawfully searched the vehicle defendant was driving. Even assuming, without deciding, that the police did not conduct a lawful inventory search, we conclude that a search was authorized because the police had probable cause to believe that a gun was inside the vehicle. Probable cause arose from the information provided to the police by the identified citizen informant, who stated that she observed one of the occupants of defendant’s vehicle in possession of what appeared to be a handgun used in the abduction of her boyfriend. “An identified citizen informant is presumed to be personally reliable” …  and, here, the informant had a sufficient basis of knowledge inasmuch as she personally observed the weapon in question… . People v Holmes, 95, 4th Dept 3-21-14

 

Grand Jury Proceedings Not Rendered Defective by Prosecutor’s Introduction of New Evidence After First True Bill Voted

The Fourth Department determined an indictment should not have been dismissed.  The grand jury proceedings were not rendered defective when the prosecutor reopened the proceedings to introduce more evidence after the grand jury voted the first true bill:

… [T]he court held that the grand jury proceedings were defective because the People, without seeking a formal vote of at least 12 members of the grand jury, submitted additional evidence after the grand jury had voted the first true bill, but before an indictment had been filed. Contrary to the court’s conclusion, Cade [74 NY2d 410] does not hold that a grand jury must vote to vacate a prior true bill that has not been filed as an indictment in order to reopen the proceedings and introduce additional evidence in support of proposed charges that were not previously considered by the grand jury … . Indeed, in Cade, the Court of Appeals noted that there are reasons, other than a prosecutor’s belief that the evidence before the grand jury was inadequate or that dismissal was likely, “why a prosecutor or a [g]rand [j]ury would choose to reopen the evidence. The prosecutor might, for example, supplement the evidence to bring additional or higher charges” … . Moreover, unlike the procedure that was in any event approved in Cade, here the prosecutor never requested that the grand jury reconsider the lower charge of assault in the second degree in light of the additional evidence … . Thus, inasmuch as there was no second presentment of that charge, the grand jury was not required to vacate its prior vote. We therefore conclude that the integrity of the grand jury was not impaired … . In view of our conclusion, we do not address the issue whether defendant was prejudiced by the procedure employed here. People v Grimes, 131, 4th Dept 3-21-14

 

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Conditioning Co-Defendant’s Plea on a Promise Not to Testify in Defendant’s Trial Is a Denial of the Right to Present a Defense

Although the Fourth Department affirmed defendant’s conviction, the court agreed with the defendant that the People improperly conditioned co-defendant’s plea upon his promise not to testify at defendant’s trial and threatened to increase the co-defendant’s sentence if he did testify.  The trial court eliminated the problem by permitting the co-defendant to testify without exposure to a more severe sentence:

We agree with defendant that it was improper for the People to condition the plea of a codefendant upon his promise not to testify at defendant’s trial and to threaten to increase the codefendant’s sentence should he violate that condition ….. As the United States Supreme Court wrote in Washington v Texas (388 US 14, 19), “[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he [or she] has the right to present his [or her] own witnesses to establish a defense. This right is a fundamental element of due process of law.” Thus, “substantial interference by the State with a defense witness’ free and unhampered choice to testify violates due process as surely as does a willful withholding of evidence” … . Here, however, defendant was not prejudiced by the improper plea condition inasmuch as the court granted his motion to permit the codefendant to testify on defendant’s behalf without exposure to a more severe sentence, and the court advised the codefendant of its ruling …. . People v Whitfield, 99, 4th Dept 3-21-14

 

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Dissent Would Have Reversed Based Upon Prosecutor’s Mischaracterization of the Probative Force of the Particular Form of DNA Evidence Presented at Trial

Although the Fourth Department affirmed defendant’s conviction, two justices would have reversed on prosecutorial misconduct and ineffective assistance grounds.  The murder prosecution was based upon circumstantial evidence, including DNA evidence.  The DNA evidence, according to the dissenters, formed the crux of the People’s case. The dissent offers a detailed explanation of the different types of DNA evidence, and the probative scope of each. According to the dissenters, the prosecutor mischaracterized the DNA evidence in summation, ascribing to it more probative force than it really had. Defense counsel was deemed ineffective by the dissenters for failing to object.  From the dissent:

[FROM THE DISSENT:] In light of the circumstantial nature of all of the evidence against defendant, we cannot conclude that the jury would have reached the same result had not the prosecutor both mischaracterized and emphasized the DNA evidence on summation, which evidence the People made the linchpin of their case. Here, the testimony of the People’s forensic expert put defendant in only a statistically-undefined group of people whose DNA could have been found on the victim’s underwear, on the ligature, and in the sperm fraction from the vaginal swab. In other words, that evidence placed defendant in a class of people that could have contributed to the DNA, but the prosecutor argued to the jury that the analysis of the DNA established defendant as the DNA’s contributor. We conclude that the prosecutor’s willful and repeated mischaracterization of evidence of class as evidence of exactitude was misconduct that could have “ ‘tip[ped] the scales against defendant’ ” … . We cannot conclude that the same result herein “would undoubtedly have been reached” absent that misconduct …. . People v Wright, 1247, 4th Dept 3-21-14

 

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Prosecutor’s Remarks in Summation, in Combination with the Erroneous Admission of Portions of a Recorded Phone Call Made by the Defendant from Jail, Warranted Reversal

In reversing defendant’s conviction, in part, because of the prosecutor’s remarks in summation, the Second Department wrote:

…[C]ertain comments in the prosecutor’s summation were improper, including the comments in which the prosecutor denigrated the defense, vouched for the truthfulness of prosecution witnesses, and shifted the burden of proof to the defense by, inter alia, stating that the defendant had not established reasonable doubt or established that the People’s witnesses were untruthful or engaged in a “conspiracy,” and improperly commented on the defendant’s failure to call a certain witness… .  People v King, 2014 NY Slip Op 01770, 2nd Dept 3-19-14

 

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Police Did Not Have Founded Suspicion of Criminal Activity When Path of Parked Car Was Blocked by Police Vehicle/Suppression of Seized Drugs Should Have Been Granted

The Second Department determined defendant’s suppression motion should have been granted.  After seeing a man approach the window of a parked car, but without seeing what was exchanged, the police blocked the parked car with the police vehicle, approached and ultimately arrested defendant.  The Second Department determined blocking the path of the parked car was a “stop” and the police did not have a “founded suspicion” of criminal activity at that point:

Although the detective who stopped the defendant’s car was trained in identifying narcotics transactions and was aware of numerous drug transactions in the neighborhood, including some involving car deliveries of drugs, he did not see what the defendant and the pedestrian exchanged, could not see if one of the men gave the other something in return for something else, and did not see money pass between the two men …. Moreover, the detective saw only one exchange … , did not describe any furtive conduct on the part of the two men …, or, indeed, any other conduct that would give rise to a reasonable suspicion that he was observing a drug transaction …. The detective’s observations supported only a “founded suspicion that criminal activity [was] afoot” …, which is insufficient to justify the stop of the defendant’s car … . Consequently, that branch of the defendant’s omnibus motion which was to suppress the crack cocaine must be granted. People v Loper 2014 NY Slip Opinion 01771, 2nd Dept 3-19-14

 

Court Properly Accepted Partial Verdict and Sent the Jury Back to Continue Deliberations on the Remaining Count

The Third Department determined the trial court properly accepted a partial verdict and sent the jury back to deliberate on the remaining count:

After the jury indicated that it had reached a verdict, the court started taking the verdict but, when the jury was polled on the larceny charge, one juror stated that she had made a mistake with her verdict. As a result, and over defendant’s objection, Supreme Court took the verdict on the two counts of criminal contempt and sent the jury back to further deliberate on the larceny charge. In our view, Supreme Court properly followed the procedure outlined inCPL 310.70 (1) (b), and there is no basis in the record to conclude that the court abused its broad discretion in accepting the partial verdict and then directing the jury to continue deliberations… . People v Phoenix, 2014 NY Slip Op 105148, 2nd Dept 3-13-14

 

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