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Response to Jury Note Without Notice to Defendant Required Reversal and a New Trial

Over a dissent, the Fourth Department determined the trial court committed a mode of proceedings error by responding to a jury request for exhibits without notice to the defendant:

CPL 310.20 (1) provides that, upon retiring to deliberate, the jurors may take with them “[a]ny exhibits received in evidence at the trial which the court, after according the parties an opportunity to be heard upon the matter, in its discretion permits them to take” (emphasis added). CPL 310.30 provides that, “[a]t any time during its deliberation, the jury may request the court for further instruction or information with respect to . . . the content or substance of any trial evidence . . . Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper” (emphasis added). Here, as part of its instructions to the jury, the court informed the jurors that “[e]xhibits that were received in evidence are available, upon your request, for your inspection and consideration.” The court, however, neither elicited on the record whether defendant, who proceeded pro se at trial, waived his right to be present when such a request was made nor informed defendant on the record that the exhibits would be given to the jury without reconvening. Prior to receiving the jury’s verdict, the court indicated that it had received a jury note “that has been marked as a Court Exhibit which was just the jury requesting certain items of evidence that had already been admitted and received in evidence, that they were provided with those items pursuant to discussions we had and what they were told before deliberations.” We note that those “discussions” do not appear to have been transcribed, and no agreement by defendant to forego the right to be present for the receipt of jury notes appears in the record before us. Inasmuch as the court failed to obtain defendant’s express agreement waiving his right to be present for the reading of the jury note at issue, we conclude that the court committed a mode of proceedings error when it provided exhibits to the jury in response to a jury note without notice to defendant, thereby requiring reversal of the judgment and a new trial … . People v Roberites, 164.1, 4th Dept 3-28-14

 

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Error to Allow Prosecutor to Elicit Testimony that Defendant Invoked His Right to Counsel

Although the error was deemed harmless, the Fourth Department noted that the prosecutor should not have been allowed to elicit testimony that defendant invoked his right to counsel:

We agree with defendant that County Court erred in allowing the People to elicit testimony that defendant invoked his right to counsel …, but we conclude that reversal is not required; the error is harmless beyond a reasonable doubt “inasmuch as there is no reasonable possibility that the error[] might have contributed to defendant’s conviction” … .  People v Daniels, 360, 4th Dept 3-28-14

 

Department of Corrections Must Comply with State and Federal Courts’ Expressed Intent to Impose Concurrent Sentences

The Third Department, over a dissent, determined that the intent in both the state and federal proceedings was to impose concurrent sentences and ruled that the Department of Corrections could not act to make the sentences consecutive:

Issues involving sentencing by dual sovereigns are generally considered under the doctrine of primary jurisdiction and occasionally give rise to complexities … . We do not need to engage in an extended discussion of the intricacies of primary jurisdiction and sentencing by dual sovereigns in this case.Succinctly stated, “[j]ust as the dual sovereignty doctrine acknowledges and protects the rights of each sovereign to exact as much punishment for a crime as that sovereign desires, the doctrine also acknowledges and protects the rights of each sovereign to exact as little punishment for the crime as that sovereign desires” … . Here, it is clear that both sovereigns intended the state and federal sentences to run concurrently. To run the sentences sequentially essentially because of the manner in which they were administered despite express intent otherwise by both sovereigns is analogous to a governmental entity other than the court lengthening a sentence, which this state does not permit …  Matter of Hall v LaValley, 515985, 3rd Dept 3-27-14

 

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Defendant Entitled to a Hearing on His Motion to Vacate His Conviction/Defense Counsel’s Failure to Move to Suppress Statements, to Challenge Search Warrants, to Request Discovery and to Object to the Conduct of the Prosecutor Raised Questions of Effective Assistance

The Court of Appeals determined questions about the effectiveness of defense counsel warranted a hearing on defendant's motion to vacate his conviction.  The court found defense counsel's explanation for failing to move to suppress defendant's statements (he was interrogated for 26 hours), failure to challenge search warrants, failure to make certain discovery requests and failure to object to the conduct of the prosecutor, inadequate:

[Defense counsel's] affirmation did not, however, address why suppression could not have been sought on the basis of: the 26-hour interrogation at a State Police barracks, which occurred in a room that may have been locked at times; the possible use of handcuffs, shackles and a “jail suit” during such questioning; and a purported refusal by the police to contact the lawyer who was representing defendant in a pending criminal case because defendant's request for legal assistance was deemed “too late.” Nor did [defense counsel] provide an explanation for failing to challenge the various search warrants that were issued or the evidence that was obtained by the police. [Defense counsel] also did not attempt to justify several potential trial errors that were noted by the Appellate Division (including the possibility of inadequate discovery requests and the failure to object to prosecutorial conduct that County Court felt compelled to address sua sponte as “grossly improper”). In these particular circumstances, we conclude that there were sufficient questions of fact as to whether [defense counsel]  had an adequate explanation for his alleged deficiencies. Defendant is therefore entitled to an opportunity to establish that he was deprived of meaningful legal representation … . People v Zeh, 33, CtApp 3-27-14

 

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Because Defendant’s Resentence to Remedy the Failure to Impose a Period of Post-Release Supervision Was On Appeal, Defendant Had Not Acquired a Legitimate Expectation of Finality in His Sentence such that the Double Jeopardy Clause Was Implicated

In a full-fledged opinion by Judge Lippman, the Court of Appeals determined, under the facts, the imposition of a period of post-release supervision [PRS] after defendant completed his sentence (which was illegal because it did not include a period of post-release supervision) did not violate the Double Jeopardy clause.  Because the resentence was being appealed, the defendant had not yet “acquired a legitimate expectation of finality in his sentence:”

Defendant … moved to vacate his conviction under Criminal Procedure Law (CPL) 440.10. Supreme Court denied the motion to vacate the conviction. The court nevertheless noted that defendant's sentence was illegal because it did not include the mandatory term of PRS … and ordered that defendant be resentenced. Defendant was conditionally released in May 2008. One month later, Supreme Court resentenced defendant to the original concurrent terms of imprisonment, as well as a five-year term of PRS. In October 2009, the maximum term of his prison sentence passed.   * * *

The protection against multiple punishments protects defendants from having their sentences increased once they have acquired “legitimate expectations of finality” therein (Williams, 14 NY3d at 214). We explained in Williams that a defendant may acquire a legitimate expectation of finality in an illegal sentence only once “the direct appeal has been completed (or the time to appeal has expired)” and the sentence has been served (id. at 217).

In Velez [19 NY3d 642] , we addressed whether a defendant acquired a legitimate expectation of finality in an illegal sentence where a resentencing proceeding had been instituted but the term of PRS had not yet been imposed prior to the expiration of the sentence. We held that the defendant … acquired a legitimate expectation of finality (19 NY3d at 650). In this case, defendant has served his sentence, but the direct appeal of that sentence is not over; it presently is before us. Consequently, defendant has not acquired a legitimate expectation of finality in his sentence.  People v Cintron, 35, CtApp 3-27-14

 

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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