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Trial Court’s Failure to Address Defendant’s Requests to Proceed Pro Se Required Reversal

The First Department determined defendant had been deprived of his constitutional rights when the trial court failed to conduct a “dispassionate inquiry” in response to defendant’s repeated requests to proceed pro se:

A criminal defendant’s right to represent himself is a fundamental right guaranteed by both the federal and state constitutions. “[F]orcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so” … . The only function of the trial court, in assessing a timely request to proceed pro se, is to ensure that the waiver was made intelligently and voluntarily …. . This requirement is not satisfied “simply by repeated judicial entreaties that a defendant persevere with the services of assigned counsel, or by judicial observations that a defendant’s interests are probably better served through a lawyer’s representation” … .

Defendant’s requests to proceed pro se were denied by the court without any inquiry whatsoever. People v Lewis, 2014 NY Slip Op 00592, 1st Dept 2-4-14

 

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Impeachment of Defendant With a Statement Made by Defendant’s Attorney Deemed Proper

The First Department determined the impeachment of the defendant with a statement made by the defendant’s attorney at arraignment was proper:

The court properly admitted a statement made at arraignment by defendant’s counsel, who was also trial counsel, to impeach defendant after he testified to a different version of the events … At the arraignment, the attorney stated that defendant was the source of the information, and the attorney was clearly acting as defendant’s authorized agent when she provided this information to the arraignment court for her client’s benefit …, notwithstanding her assertion at trial that she had inaccurately conveyed her client’s version of the incident. Introduction of the statements did not require the People to call counsel as a witness against her client … , and the People never sought to do so. People v Ortiz, 2014 NY Slip Op 00616, 1st Dept 2-4-14

 

No Reference to When Child-Pornography Images Downloaded/Therefore Consecutive Sentences Could Not Be Imposed

The Third Department determined that consecutive sentences could not be imposed for the downloading of child pornography without specific reference to the date and time of each download:

Consecutive sentences are authorized when “‘the facts demonstrate that the defendant’s acts underlying the crimes are separate and distinct'” … .  The determination as to whether defendant committed separate and distinct acts of possession turns upon when the images came into his possession … .  While the accusatory instrument and defendant’s plea allocution each specified the date and time upon which the images were retrieved from defendant’s computer, there was no information regarding defendant’s act of downloading the images.  Accordingly, consecutive sentences were not authorized in the absence of such information… . People v Pardy, 105529, 3rd Dept 1-30-14

 

Parolees May Move for Resentencing Under the Drug Law Reform Act

In a full-fledged opinion by Justice Cohen, the Second Department determined that parolees are “in custody” within the meaning of the 2011 amendments to the Drug Law Reform Act and, therefore, parolees may move for resentencing under the act:

In 2011, a New York State budget enactment consolidated and modernized several state agencies and created new departments (see L 2011, ch 62). This legislation merged the New York State Department of Correctional Services and the New York State Division of Parole into a single agency, the New York State Department of Corrections and Community Supervision (see id.). At that time, CPL 440.46(1) was amended by changing “department of correctional services” to “department of corrections and community supervision,” so that now “[a]ny person in the custody of the department of corrections and community supervision,” otherwise qualified, could apply to be resentenced (CPL 440.46[1]). People v Brown, 2014 NY Slip Op 00524, 2nd Dept 1-29-14

 

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Doctrine of Collateral Estoppel Applied In Civil Suit Alleging Sexual Abuse Where Defendant Pled Guilty to Offenses Described in the Civil Suit

The Second Department determined the doctrine of collateral estoppel applied where the issues raised in a civil suit, based upon allegations of sexual abuse to which the defendant pled guilty, were identical to the offenses described in the plea transcript. The doctrine, however, did not apply to the civil allegation of rape because the defendant did not plead guilty to rape:

“Where a criminal conviction is based upon facts identical to those in issue in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from litigating the issue of his liability” … . The doctrine applies whether the conviction resulted from a plea or a trial … . “The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action” … . “The party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination” … . Morrow v Gallagher, 2014 NY Slip Op 00489, 2nd Dept 1-29-14

 

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What To Do If the District Attorney Does Not Wish to Prosecute But the Judge Does

The Third Department determined a trial judge exceeded his powers when he ordered the prosecutor to produce witnesses at a suppression hearing.  The prosecutor did not wish to proceed with the case. The Third Department determined that the prosecutor could not be ordered to produce witnesses at the suppression hearing (the prosecutor’s tactic for dismissing the case) because the CPL did not require the prosecution to present such witnesses. The Third Department went on to suggest that, in this situation, a motion for “dismissal in the interest of justice” might be used, or the prosecutor could simply not present any inculpatory proof at trial:

A district attorney has “unfettered discretion to determine whether to prosecute a particular suspect” … .  Once prosecution of the case is pursued and pending, the district attorney remains “presumptively the best judge of whether a pending prosecution should be terminated” …; nonetheless, at such point dismissal cannot properly be done unilaterally on the sole whim of the district attorney … .  * * *  Unless the district attorney has engaged in egregious misconduct violative of the public interest, the limitation generally will not create difficulty in obtaining swift dismissal where a defendant also desires dismissal, since various procedures are available for disposing of a pending criminal case.

For example, a motion to dismiss in the interest of justice can be made (see CPL 170.40; see also CPL 210.40).  Such motion can be initiated by a defendant, a district attorney, or even by the court before which the case is pending * * *. Although there are statutory criteria that must also be addressed as part of a motion to dismiss in the interest of justice (see CPL 170.40 [1] [a]-[j]), the criteria include a catchall (see CPL 170.40 [1] [j]), and there is flexibility in the manner in which the criteria are weighed and applied … .  * * *

Another, but more time consuming, option is similar to the one ostensibly embarked upon by petitioner.   Consistent with the CPL, a district attorney can stipulate at a suppression hearing to the granting of a defendant’s motion (see CPL 710.60 [2] [b]).   Further, the failure at an eventual trial to produce any inculpatory proof would result in dismissal and, since reprosecution would then be precluded (see e.g. CPL 40.20, 40.30), the primary purpose for abolishing nolle prosequi would not be implicated … . Matter of Soares v Carter…, 517191, 3rd Dept 1-23-14

 

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Counsel’s Expressed Objections to His Client’s Motion to Withdraw His Guilty Plea Required the Assignment of New Counsel

The Second Department determined defendant should have been assigned a different attorney after his attorney expressed objections to the defendant’s motion to withdraw his guilty plea:

Assigned counsel expressed his opinion that the defendant should “maintain his plea” and informed the court that he didn’t “feel that [he] could represent [the defendant] at any further proceedings.” The defendant’s right to counsel was adversely affected when his attorney took a position adverse to the defendant’s with respect to that branch of the defendant’s motion which was to withdraw his plea of guilty to attempted use of a child in a sexual performance … . The County Court should have assigned a different attorney to represent the defendant before it determined that branch of the defendant’s motion… . People v Duart, 2014 NY Slip Op 00373, 2nd Dept 1-22-14

 

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Attorney Conflict Waiver Criteria Discussed/Whether Molineux Analysis Should Be Applied to “Prior Bad Thoughts” in Journal Entries Discussed

In two concurring opinions, one by Judge Lippman and the other by Judge Abdus-Salaam, the Court of Appeals determined defendant did not raise an error warranting reversal.

The defendant contended (1) his attorney had personal interests which conflicted with her professional obligations to him, and (2) journal entries which were unrelated to the murder with which defendant was charged should not have been admitted in evidence.

One of defendant’s attorneys was under indictment by the same district attorney’s office for allegedly smuggling drugs to a client in jail. The defendant waived the conflict. The two judges disagreed about what such a conflict waiver should include and agreed the defendant’s conflict waiver was inadequate, but determined reversal was not required because there was an insufficient showing the conflict operated on the defense.

The journal entries were essentially “bad thoughts” about women other than the victim.  Judge Lippman determined that the “prior bad thoughts” should have been analyzed under the Molineux criteria for the admission of evidence of prior crimes and bad acts.  Judge Abdus-Salaam determined that Molineux should not be extended to such “prior bad thoughts,” which should simply be scrutinized under relevancy criteria. Both judges determined the erroneous admission of the “bad thoughts” evidence was harmless error.  People v Cortez, 225, CtApp 1-21-14

 

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Constitutionality of Statute Allowing Defective Sentence to Be Remedied by a Sentence Without Post Release Supervision (CPL 70.85) Is an Open Issue Which Should Be Decided by the Sentencing Court in the First Instance/Crawford Motion Relieving Counsel of Perfecting an Appeal Because of the Absence of Non-Frivolous Issues Should Not Have Been Granted

The Court of Appeals determined the Appellate Division should not have granted counsel’s motion to withdraw from representing the defendant on appeal on the ground the appeal would be “wholly frivolous.”  There is an issue whether the statute which allows resentencing the defendant to a term of imprisonment without post release supervision after post release supervision had been (illegally) administratively imposed is constitutional:

Defendant timely appealed the resentence and was assigned counsel, who reviewed the file and informed defendant of our decision in People v Boyd (12 NY3d 390 [2009]), where this court upheld defendant Boyd's sentence under Penal Law § 70.85, but left open the constitutionality of that statute, stating that it should be decided by the sentencing court in the first instance.  Despite this open issue, counsel filed a motion pursuant to People v Crawford … arguing that there were no non-frivolous issues to be raised on defendant's behalf and asking to be relieved as counsel.  Defendant filed a pro se supplemental brief arguing that her sentence was illegal, and that she was denied effective assistance of counsel.  The Appellate Division granted counsel's motion and affirmed the resentence, without addressing defendant's pro se contentions (96 AD3d 1515 [2012]).  * * *

Defendant argues that her appeal was not wholly frivolous because she had two claims: (1) the claim that Penal Law § 70.85 is unconstitutional as applied to her case, and (2) that defendant was denied effective assistance of counsel at every level.  We agree with defendant that the Appellate Division erred in granting the Crawford motion.  Without expressing any opinion on the ultimate merits, at the time defendant's appellate counsel filed his Crawford motion, the claims to that court were not wholly frivolous and, therefore, the court should have denied appellate counsel's motion.  As a result, a reversal and remittal for a de novo appeal is warranted… . People v Beaty, 84, CtApp 1-16-14

 

Judge’s Refusal to Grant a One-Day Adjournment to Allow Defendant to Present a Witness (After the Judge Granted the People’s Request for a Missing-Witness Jury Instruction) Was Reversible Error

The First Department reversed defendant’s conviction because the judge refused to grant defendant a one-day adjournment to bring in a witness after granting the People’s request for a missing-witness jury instruction:

Having granted the People’s request for the [missing witness] instruction, the court should have granted defendant a short adjournment. A missing witness issue “must be raised as soon as practicable so that the court can appropriately exercise its discretion and the parties can tailor their trial strategy”… . Here, the moving party raised the issue after defendant’s testimony, when the issue became apparent. The court should have then accorded the nonmoving party the opportunity to avoid the missing witness charge by calling the witness. Although defendant was willing to call the witness, the court effectively rendered the witness unavailable, thus negating the availability requirement for a missing witness charge.

The court apparently denied the adjournment on the ground that defendant should have anticipated the missing witness issue. However, an adjournment to the next day would have been reasonable under the circumstances. People v Manzi, 2014 NY Slip Op 00280, 1st Dept 1-16-14

 

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