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Concise Example of a Weight of the Evidence Review

The First Department reversed defendant’s conviction and dismissed the indictment after a weight of the evidence review. The court found too many inconsistencies in the evidence, especially with respect to the identification of the defendant as the attacker.  The decision is a concise example of the kinds of proof problems which are considered significant under a weight of the evidence analysis:

Here, there were troubling discrepancies in the evidence presented to the jury. Most significantly, the complainant testified that the club was sufficiently well-lit for him to see his assailant’s face while the encounter was ongoing. However, the detective who investigated the incident and interviewed the complainant testified, after having had his recollection refreshed with the DD-5 report he prepared in connection with the investigation, that the complainant told him he “did not have a clear recollection of the suspect because it was somewhat dark” in the Maribella. While the complainant denies he told the detective that, the People do not offer, nor can we perceive of, any reason why the detective would have been untruthful not only on the witness stand, but also in a contemporaneous internal report documenting the investigation.

Further clouding the accuracy of the complainant’s identification of defendant was the photograph he picked out of an array. We acknowledge that the complainant did not represent that the person in the photo he chose was his assailant, but rather that he looked like him. Nevertheless, there is a significant difference in the appearances, especially the complexions, of the people depicted in the two photographs, which calls into question the confidence the complainant had in recalling what his attacker looked like.  People v Diaz, 2014 NY Slip Op 01661, 1st Dept 3-13-14

 

Defendant Properly Sentenced As a Youthful Offender on One Indictment But Not on a Second Indictment

The Second Department determined the sentencing court properly sentenced defendant as a youthful offender under one indictment and properly declined to sentence defendant as a youthful offender under a second indictment:

The defendant contends that, because the sentencing court granted him youthful offender status with respect to Indictment No. 12-00529, it was required to do so with respect to Indictment No. 12-01380. The defendant was not convicted of two crimes set forth in separate counts of a single indictment, nor was he convicted of two crimes set forth in two separate indictments consolidated for trial purposes (see CPL 720.20[2]). Therefore, the sentencing court was authorized in its discretion to determine that the defendant was a youthful offender with respect to either or both convictions … . Accordingly, the sentencing court properly determined that it may find the defendant a youthful offender with respect to his conviction under Indictment No. 12-00529, but not with respect to his conviction under Indictment No. 12-01380.  People v Shaquille Mc, 2014 NY Slip Op 01633, 2nd Dept 3-12-14

 

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Prosecutor’s Creating the Impression Non-Testifying Witness Identified Defendant as Shooter Violated Defendant’s Right to Confront the Witnesses Against Him

The Second Department, over a dissent, determined that a new trial was required because the prosecutor created the impression a non-testifying witness [Drake] had identified the defendant as the shooter.  Although the error was not preserved by objection, the court addressed the issue in the interest of justice.  The court noted as well that the defense counsel’s objections to the prosecutor’s comments during summation (which reinforced the impression) were erroneously overruled:

Generally, during cross-examination, a party cannot introduce extrinsic evidence or call another witness to contradict a witness’s answers concerning collateral matters solely for the purpose of impeaching such witness’s credibility … . As the defendant correctly contends, during the cross-examination of Lloyd, the prosecutor improperly gave the impression that Drake, who did not testify, implicated the defendant while the police questioned her … . Notably, the prosecutor acknowledged at the second trial that Drake had testified at the initial trial, and that Drake had not identified the defendant as having been present at the party.

The defendant’s constitutional right to be confronted with the witnesses against him prohibits the “admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify, and the defendant ha[s] had a prior opportunity for cross-examination” (Crawford v Washington, 541 US 36, 53-54; see People v Pealer, 20 NY3d 447, 453, cert denied _____US_____, 134 S Ct 105). Here, the defendant’s constitutional right to be confronted with the witnesses against him was violated.  People v Lloyd, 2014 NY Slip Op 01631, 2nd Dept 3-12-14

 

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Youthful Offender Privilege Explained/Privilege Not Waived By Denial of the Act Which Was the Subject of the Youthful Offender Adjudication in Subsequent Civil Suit

The Second Department determined the defendant’s son did not waive the privilege associated with his youthful offender status. Although defendant’s son had pled guilty to an assault based upon his throwing an egg, he denied throwing the egg in his deposition during the related civil proceedings.  That denial did not waive the privilege and the plaintiff could not gain access to the records of the criminal proceedings:

The youthful offender statute (CPL article 720) provides special measures for persons found to be youthful offenders, which ” emanate from a legislative desire not to stigmatize youths between the ages of 16 and 19 with criminal records triggered by hasty or thoughtless acts which, although crimes, may not have been the serious deeds of hardened criminals'” … . Thus, “[a] youthful offender adjudication is not a judgment of conviction for a crime or any other offense” (CPL 720.35[1]). Further, pursuant to CPL 720.35(2), all official records and papers concerning the adjudication are sealed. * * *

The privilege created by this statute attaches not only to the physical documents constituting the official record, but also to the information contained within those documents … . Thus, a person adjudicated a youthful offender may refuse to answer questions regarding the charges and police investigation, whether he or she pleaded guilty, and whether a youthful offender adjudication was made. However, the person must still answer questions regarding the facts underlying the adjudication … . * * *

Here, the defendant’s son did not waive the privilege afforded by the statute since he did not commence an action which places the conduct at issue … . The defendant did not assert counterclaims or cross claims in this action placing the conduct at issue …, and the defendant’s son did not testify as to the confidential contents of the records … . Contrary to the plaintiff’s contention, the testimony of the defendant’s son at his deposition denying that he threw the egg which allegedly struck the plaintiff’s daughter did not waive the protections of the statute … . Castiglione v James FQ, 2014 NY Slip Op 01571, 2nd Dept 3-12-14

 

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Mistakes Leading to Miscalculation of Defendant’s Sentence Privileged

The Third Department determined plaintiff's false imprisonment action against the state was properly dismissed.  Although there were errors resuliting in the erroneous calculation of defendant's sentence, the erroneous actions were privileged:

In order to state a claim for false imprisonment or unlawful confinement, claimant was required to demonstrate that (1) defendant intended to confine him, (2) he was conscious of the confinement, (3) he did not consent to the confinement, and (4) such confinement was not otherwise privileged … . As there is no dispute as to the first three elements, we are left to consider whether defendant's confinement of claimant indeed was privileged.

As the Court of Appeals recently reiterated, “[a] detention, otherwise unlawful, is privileged where the confinement was by arrest under a valid process issued by a court having jurisdiction” … .Here, regardless of the validity of the sentence actually imposed, the asserted ambiguity in the sentence and commitment order or the reasonableness of [Department of Correctional Services'] interpretation thereof, there is no question that the sentencing court had jurisdiction over claimant, and the record does not otherwise suggest that the underlying process was defective. Accordingly, we are satisfied that defendant met its burden of demonstrating that its detention of claimant was privileged. * * *

Although DOCS' determination, which was predicated upon its analysis of the relevant sentencing statutes and claimant's criminal history, proved to be erroneous, that error in judgment neither negates nor defeats defendant's claim of privilege … . Simply put, DOCS – in treating claimant's sentence as running consecutively to his prior undischarged term of imprisonment – acted in excess of its jurisdiction, not in the complete absence of jurisdiction, and its conduct therefore was privileged … . Hudson v State of New York, 516333, 3rd Dept 5-6-14

 

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Police Pursuit Not Justified by Defendant’s “Grabbing of his Waistband Area” or Subsequent Flight/Gun Suppressed

The Second Department affirmed the suppression of a weapon.  After seeing the defendant “grab… his waistband area” the police approached and the defendant ran, ultimately discarding a gun.  The pursuit was not justified by what the police saw prior to the defendant’s flight:

A suspect’s “flight alone . . . even [his or her flight] in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit” … . However, flight, “combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit” … .Under the circumstances of this case, the defendant’s “grabb[ing]” of his “waistband area” in such a way that it “[s]eemed” to the detectives that the defendant “had a bulge or something heavy that he was holding on the outside of his garments,” did not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion that was necessary to lawfully pursue the defendant, even when coupled with the defendant’s having made eye contact with the detectives and his flight from the detectives … . As the detectives’ pursuit of the defendant was unlawful, and the defendant’s disposal of the weapon during the pursuit was precipitated by the illegality and was not attenuated from it …, the Supreme Court properly granted that branch of the defendant’s omnibus motion which was to suppress the weapon. People v Haynes, 2014 NY Slip Op 01462, 2nd Dept 3-5-14

 

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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

 

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