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Defense Counsel Should Have Been Present During Exchange Between Judge and Juror Which Resulted in Disqualification of Juror/Judge Should Have Disclosed Reason for Disqualification

The Second Department determined defense counsel’s absence from an exchange between the judge and a juror, which led to the disqualification of the juror, required reversal:

The juror reported that a third party had told him that the defendant had an “aggressive demeanor,” was a “little wild,” was “somebody you don’t mess around with,” and was someone he “should avoid.” The trial court, in discharging the juror, merely told defense counsel that this juror had lied to the court and, thus, was grossly unqualified to continue serving pursuant to CPL 270.35.

“[A]n inquiry to determine the existence and extent of prejudice affecting the gross disqualification of a sworn juror . . . is inextricably related to defendant’s entitlement to a fair hearing … . Therefore, the unique, indispensable presence of at least the single-minded counsel for the accused’ … is minimally necessary to safeguard that fundamental fairness to defendant” … .

Here, the absence of defense counsel from the in camera interview, coupled with the court’s failure to disclose what the juror said, deprived the defense of the opportunity to inquire as to whether the juror made similar prejudicial statements to any other jurors… . People v Otigho, 2014 NY Slip Op 00128, 2nd Dept 1-8-14

 

Banging On Door of Closed Restaurant While Wearing a Mask and Carrying a BB Gun Was Sufficient to Support Conviction for Attempted Robbery

Over a two-justice dissent, the Fourth Department affirmed defendant’s conviction for attempted robbery.  Defendant, wearing a mask and armed with a BB gun, banged on the back door of a restaurant, which was closed. One of the restaurant employees called 911.  On appeal the defendant argued that the proof was not sufficient to demonstrate an intent to forcibly steal property and therefore could not support an attempted robbery conviction:

Although defendant’s mere entry into a store with a gun does not “unequivocally establish that he intended to commit a robbery” …, the evidence also established that none of the Wendy’s employees knew defendant; the restaurant was not open to the public when defendant sought entry; defendant and his accomplice were armed with BB guns that appeared to be firearms; defendant and his accomplice wore masks and gloves; and defendant had a backpack into which stolen property could be put.

Viewing the evidence in the light most favorable to the People, as we must …, we conclude that there is a “ ‘valid line of reasoning and permissible inferences [that] could lead a rational person’ ” to the conclusion reached by the trial court, i.e., that defendant was trying to gain entry into the restaurant with the intent to steal property forcibly from someone inside … . Furthermore, viewing the evidence in light of the elements of the crime in this nonjury trial …, we conclude that the verdict is not against the weight of the evidence… . People v Lamont, 1090, 4th Dept 1-3-14

 

Determination Whether Defendant Is a Youthful Offender Is Mandatory for Every Eligible Youth

Over a dissent, the Fourth Department determined the sentencing court did not make a finding whether the defendant was a youthful offender, as it was required to do.  The matter was sent back for the determination:

“Upon conviction of an eligible youth, the court must order a [presentence] investigation of the defendant.  After receipt of a written report of the investigation and at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender” (CPL 720.20 [1]).  The Court of Appeals has concluded that, by the use of the word “must,” the legislature has made “a policy choice that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain” … .  “[W]e cannot deem the court’s failure to rule on the . . . [issue] as a denial thereof” … .  We therefore hold the case, reserve decision, and remit the matter to County Court to make and state for the record “a determination of whether defendant is a youthful offender” … . People v Koons, 1077, 4th Dept 1-3-14

 

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Hearsay Statements Exonerating Defendant Properly Excluded as Not Meeting the Reliability Requirement for a “Statement Against Penal Interest”

Over a dissent, the Fourth Department determined the accomplice’s hearsay statements exonerating the defendant were properly excluded from evidence because they did not meet the “reliability” requirement for “statements against penal interest:”

We … note that the Court of Appeals has recently reiterated that there are four components to the declaration against penal interest exception to the hearsay rule: “(1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction or refusal to testify on constitutional grounds; (2) the declarant must be aware at the time the statement is made that it is contrary to penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient proof independent of the utterance to assure its reliability” ….  Jerome Prince, Richardson on Evidence sets forth a fifth component, i.e., that the declarant “had no probable motive to misrepresent the facts” (Jerome Prince, Richardson on Evidence § 8-403 [Farrell 11th Ed 2008]).  To the extent that component should be part of our calculus here, we conclude that it weights our determination even more heavily in the People’s favor. People v McArthur, 1249, 4th Dept 1-3-14

 

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Showup Identification of the Hand-Cuffed Defendant Made in the Police Station Parking Lot 90 Minutes After the Crime Should Have Been Suppressed

The Fourth Department reversed defendant’s conviction and sent the matter back for a Wade hearing to determine whether the eyewitness had an independent basis for his in-court identification of the defendant.  The show-up identification made by the eyewitness was deemed invalid and should have been suppressed:

…[D]efendant contends that County Court erred in refusing to suppress showup identification testimony with respect to him.  We agree. “Showup identifications are disfavored, since they are suggestive by their very nature” …. .  Here, the showup identification procedure was conducted in the parking lot of a police station, approximately 90 minutes after the occurrence of the crime, while defendant was handcuffed and while uniformed police officers and ambulance personnel were in the parking lot.  The totality of the circumstances of this showup identification procedure presses judicial tolerance beyond its limits …, and we conclude under the facts and circumstances of this case that the showup identification procedure was infirm… .  People v Burnice, 1343, 4th Dept 1-3-14

 

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Twenty-Two-Year-Old Conviction Reversed Because of Ineffective Assistance of Counsel

The Fourth Department, over a two-justice dissent, reversed defendant’s 1992 conviction.  The conviction had already been upheld on appeal.  But, in 2012, a writ of coram nobis was brought arguing defendant did not receive a fair trial because of the ineffectiveness of his counsel.  The writ was granted and, on appeal, the court determined defendant was entitled to a new trial.  Defense counsel was deemed ineffective (1) for failure to object to the elicitation of testimony about a threat which had been precluded by the trial judge, and (2) for using a flawed alibi defense (referring to the wrong days of the week) which gave the jury the impression the alibi witnesses were testifying falsely:

We conclude that “defendant has demonstrated the absence of any strategic or other legitimate explanation for his attorney’s” failure to object to the introduction of this prejudicial and previously precluded testimony … .  Moreover, after defense counsel failed to object to the admission of that precluded testimony, the prosecutor continued to use that testimony to full advantage, arguing on summation that the threat to the prosecution witness “puts the [d]efendant [at the crime scene] just as easily as any person you saw in there” … .  Defense counsel’s error in failing to object to the testimony of the prosecution witness “simply cannot be construed as a misguided though reasonably plausible strategy decision” …, and “ ‘is sufficiently serious to have deprived defendant of a fair trial’… . * * *

Presenting an alibi defense for the wrong date or time has been found, by itself, to constitute ineffective assistance of counsel … .  We conclude that presenting an alibi defense for the wrong day of the week, as occurred here, similarly constitutes ineffective assistance of counsel inasmuch as offering patently erroneous alibi testimony cannot be construed as a plausible strategy… . People v Jarvis, 1009, 4th Dept 1-3-14

 

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Imprisonment and Prosecution Based Upon the Violation of an Administratively Imposed Period of Post Release Supervision Gave Rise to Valid False Imprisonment and Malicious Prosecution Causes of Action Against the State

In a lengthy and thorough opinion by Justice Spain, the Third Department determined that the claimant, who was imprisoned and prosecuted based upon an administratively imposed “post release supervision” (PRS) violation, was entitled to summary judgment on his false imprisonment cause of action and had stated a cause of action for malicious prosecution.  The claimant was held in custody and prosecuted after the Court of Appeals had ruled that only the sentencing court can impose a term of post release supervision (Garner v NYS Dept of Correctional Services, 10 NY3d 358 [2008]):

…[C]aimant sufficiently alleged that his confinement was not privileged and it was defendant’s burden to establish that its confinement of claimant after Garner was privileged; defendant failed in the Court of Claims to produce a Division of Parole arrest warrant or a court order so as to demonstrate their validity or that the arrest or confinement of claimant was privileged … .   Further, to clarify, claimant does not challenge his arrest prior to Garner but, rather, premises his claims on his continued detention and reincarceration – after Garner – for a parole violation based upon an administrativelyimposed PRS term that Garner clearly held was invalid, i.e., he raises a claim for false imprisonment and not for false arrest. * * *

…[D]efendant does not have immunity for the actions of its parole officials.  To be sure, inherently discretionary parole decisions of government officials have been recognized to be quasi-judicial decisions entitled to absolute immunity … .  “Where, however, the official has stepped outside the scope of his [or her] authority and acted in the clear absence of all jurisdiction or without a colorable claim of authority, there is plainly no entitlement to absolute immunity, even if the underlying acts are . . . quasi-judicial in nature” … .  That is, “[t]here is a distinction between acts performed in excess of jurisdiction and acts performed in the clear absence of any jurisdiction over the subject matter.  The former is privileged, the latter is not”… . * * *

We similarly conclude that claimant stated a cause of action for malicious prosecution.  To make out a claim for malicious prosecution, claimant must establish: “(1) the commencement or continuation of a criminal proceeding by the defendant against the [claimant], (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice” …. .  … On the second prong, claimant need not “demonstrate innocence” of the parole violation in order to satisfy that favorable termination prong; rather, claimant can satisfy it by showing that “there can be no further prosecution of the [alleged parole violation]” … .  We believe it self evident, under the facts here and despite the lack of state law on point, that defendant could not, after Sparber and Garner, ever lawfully prosecute claimant on a parole violation that occurred before those decisions, where the PRS in effect at the time of the alleged violation was imposed by DOCS and was, as such, a nullity… Moulton v State of New York, 515096, 3rd Dept 12-26-13

 

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Expert Evidence to Explain an Adolescent’s Reactions to Sexual Abuse Properly Admitted

The Second Department determined expert testimony about “adolescent sexual abuse” was properly admitted in a sex-crime trial to explain delay in reporting, imprecise memory, accommodation, and a “flat affect” during testimony:

“Expert testimony is properly admitted if it helps to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror'” … . “[E]xpert testimony regarding rape trauma syndrome, abused child syndrome or similar conditions may be admitted to explain behavior of a victim that might appear unusual or that jurors may not be expected to understand” … . The expert’s testimony was properly admitted to explain the issue of delayed disclosure and to counter the defense claim that the complainant fabricated the sexual abuse allegations when her parents objected to her having a boyfriend … . The testimony was also properly admitted to explain why the complainant did not recall with specificity when certain of the alleged incidents occurred, and why victims of adolescent sexual abuse may manifest a “flat affect” when testifying. The testimony was “general in nature and does not attempt to impermissibly prove that the charged crimes occurred” … . To the extent the expert testified as to an abuser’s behavior patterns, such testimony was admissible to help explain “why victims may accommodate abusers and why they wait before disclosing the abuse” … . People v Gopaul, 2013 NY Slip Op 08659, 2nd Dept 12-26-13

 

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Burden Is on Defendant in SORA Reclassification Proceeding/Fact that Defendant Was Not Provided With All the Documents Reviewed by the Board Did Not Violate Due Process

In a SORA reclassification proceeding, the Third Department, over a dissent, determined the defendant was not deprived of due process by the SORA court’s denial of an adjournment for the purpose gathering all the documents reviewed by the Board of Examiners of Sex Offenders in making its updated recommendation.  The Third Department noted that, unlike in the initial SORA proceeding where the burden of proof is on the People, in a reclassification proceeding the burden is on the defendant:

Correction Law § 168-o (2) provides a sex offender who is required to register pursuant to SORA with the opportunity to periodically seek a downward modification of his or her risk level classification.  However, the burden falls upon the sex offender to establish by clear and convincing evidence that a modification is warranted (see Correction Law § 168-o [2]), and the trial court’s determination will not be disturbed absent an abuse of discretion… . * * *

We do not take issue with the argument that defendant was entitled to discovery of the materials in question.  However, all discovery is subject to certain limitations and the court has “considerable discretion to supervise the discovery process” … .  In our view, the question before us distills to whether County Court abused its discretion in refusing to adjourn the hearing in order for defendant to belatedly gain access to the requested documents. In this regard, County Court’s decision to deny defendant’s request must be evaluated with full consideration of the attendant circumstances before the court, including the timeliness thereof …, and we cannot agree that reversal is required based solely on the fact that defendant did not obtain the requested materials prior to the hearing. People v Lashway, 514859, 3rd Dept 12-26-13

 

Not Clear Superior Court Information (SCI) Charged Same Offense as Felony Complaint/SCI and Related Waiver of Indictment Not Valid

The Second Department determined a discrepancy between the felony complaint and the superior court information (SCI) rendered the SCI jurisdictionally defective:

Where a defendant waives the right to be prosecuted by indictment and consents to be prosecuted by SCI, the SCI “must either charge [the] defendant with the same crime as the felony complaint or a lesser included offense of that crime” (…see NY Const, art I, § 6; CPL 195.10[a]…). Under the circumstances of this case, this Court cannot conclude that the defendant was charged in the SCI with the same offense with which he was charged in the felony complaint. There is a factual discrepancy between the two documents, in that they charge the defendant with assaulting two different victims, and there are insufficient surrounding facts to reveal that the assault charges actually refer to the same incident… .  People v Siminions, 2013 NY Slip Op 08670, 2nd Dept 12-26-13

 

 

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