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17-YEAR-OLD’S ARE STATUTORILY EXCLUDED FROM THE CLASS OF VICTIMS UNDER PENAL LAW 263.11, TO WHICH DEFENDANT PLED GUILTY; RISK-LEVEL REDUCED FROM TWO TO ONE (FOURTH DEPT).

​The Fourth Department, reducing defendant’s SORA risk-level from two to one, determined the 17-year-old involved in the offense was statutorily excluded from the class of victims:

… [T]he court erred in assessing 20 points for the number of victims under risk factor 3 … . The court based its assessment on a determination that a 17-year-old was a victim of defendant’s conduct. However, 17-year-olds are statutorily excluded from the class of victims under Penal Law § 263.11, to which defendant pleaded guilty. When those points are removed, defendant has a total of 60 points, making him a presumptive level one risk. People v Cockrell, 2024 NY Slip Op 02439, Fourth Dept 5-3-24

Practice Point: 17-year-old’s are statutorily excluded from the class of victims under Penal Law 263.11.

 

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THE EVIDENCE DEFENDANT SHARED A COMMUNITY OF PURPOSE WITH THE SHOOTER WAS LEGALLY INSUFFICIENT; ASSAULT AND FIREARMS CONVICTIONS REVERSED AND INDICTMENT DISMISSED (THIRD DEPT). ​

The Third Department, reversing defendant’s assault and related use and possession of a firearm convictions, determined there was insufficient evidence that defendant shared the intent to shoot the victim. The victim was shot. Defendant drove a car which followed the wounded victim who was then robbed by an occupant of the car:

The trial evidence is insufficient to demonstrate that defendant shared a community of purpose with the unidentified shooter to cause serious physical injury to the victim or that he aided the shooter in doing so … . To begin with, there was no evidence that defendant formed a plan with anyone to assault the victim or had any advance knowledge that the victim was going to be attacked … . Further, although there is proof that defendant was present, he cannot be observed on the surveillance video striking the victim or participating in any way in the altercation that preceded the shooting. In fact, the victim testified that, during the brief struggle, he did not know if defendant was there to help him or harm him and that it was defendant’s friends with whom he was actually fighting. Additionally, as noted above, there was no indication during this brief and seemingly chaotic interaction that defendant was aware that [anyone] had a gun …. This situation is also not akin to cases where an accomplice’s community of purpose with a fellow assailant can be inferred from his or her continued participation in an attack after the other produces a weapon … . … [T]here is evidence that, following the shooting, defendant drove a vehicle in the direction of the victim and stopped it [an assailant’s] command, at which time [the assailant] got out and robbed the victim. However, that alone is insufficient to establish that defendant shared a community of purpose to commit the earlier assault or provided assistance thereto. People v Walker, 2024 NY Slip Op 02346, Third Dept 5-2-24

Practice Point: Defendant’s presence with the assailants when the victim was shot, and defendant’s driving a car following the wounded victim victim and stopping the car to allow an assailant to get out and rob the victim, did not demonstrate defendant shared a community of purpose with the shooter at the time of the shooting.

 

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THERE WAS NO RECORD DEFENSE COUNSEL WAS INFORMED OF THE JURY NOTE AND NO RECORD THE JUDGE RESPONDED TO THE NOTE, A MODE OF PROCEEDINGS ERROR; ALTHOUGH THE NOTE REFERRED ONLY TO ONE COUNT, THE THREE COUNTS WERE FACTUALLY CONNECTED REQUIRING A NEW TRIAL (FIRST DEPT). ​

The First Department, reversing defendant’s conviction and ordering a new trial, determined the absence of a record indicating defense counsel was notified of a note from the jury, or even that the judge responded to the note, was a mode of proceedings error. The People’s argument that the note addressed only one count of the indictment and the convictions on the other counts should survive was rejected. The nature of the jury’s question was relevant to all counts:

The fourth note stated: “We the jury request to hear the judge’s reading of count 1, including definitions and detail. Further, can you please confirm if it is up to our determination to decide if something is considered as “course of conduct” and “act”? As written on the verdict sheet, count 1 states “engaging in a course off conduct,” we want to confirm if this is a typo or not.” * * *

When an O’Rama error occurs, the question of whether the error in the proceedings related to some charges requires reversal on the other charges is determined on a case-by-case basis, with ‘due regard’ for the facts of the case, the nature of the error, and the ‘potential for prejudicial impact on the over-all outcome’ … .

Here, the three counts of the indictment were alleged to arise from a course or repetition of conduct in violation of the order of protection reasonably perceived as threatening to the victim’s safety (count 1), through means both electronic/written (count 2) and telephonic (count 3). Thus, given the underlying factual relationship between the crimes, defendant is entitled to a new trial … . People v Jamison, 2024 NY Slip Op 02286, First Dept 4-30-24

Practice Point: If the record is silent about whether counsel was notified of a jury note and whether the judge even responded to the note, that is a mode of proceedings error.

Practice Point: Although the jury note related to only one of the three counts, the convictions on the other two counts could not survive because all the counts were factually connected.

 

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HERE THE COURT OF APPEALS CLARIFIED ITS DEFINITION OF “TESTIMONIAL” EVIDENCE; A FORM DOCUMENT USED TO COLLECT PEDIGREE INFORMATION FROM EVERY NYC ARRESTEE IS NOT “AN OUT-OF-COURT SUBSTITUTE FOR TRIAL TESTIMONY,” I.E., THE FORM DOCUMENT IS NOT “TESTIMONIAL” AND CAN BE INTRODUCED AT TRIAL AS A BUSINESS RECORD WITHOUT THE TESTIMONY OF THE CREATOR OF THE DOCUMENT; HERE THE DOCUMENT INDICATED DEFENDANT LIVED IN THE BASEMENT AND WAS USED AT TRIAL TO PROVE HE CONSTRUCTIVELY POSSESSED A WEAPON FOUND IN THE BASEMENT (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over an extensive dissenting opinion, determined a document created by the Criminal Justice Agency (CJA), which provides pretrial services in NYC, was not “testimonial” in nature and therefore could be introduced in evidence as a business record without affording the defendant the opportunity to confront the creator of the document. The document was created during an interview of the defendant. The defendant was charged with possession of a weapon found in the basement. The CJA document indicated defendant lived in the basement and was introduced at trial to prove his constructive possession of the weapon:

… CJA interviews “nearly all individuals arrested” in New York City “to make a pretrial release recommendation to the court” … . In interviewing arrestees to determine their suitability for pretrial release, CJA employees ask them questions regarding community ties and warrant history, including an arrestee’s address, how long they have lived there, their employment status, whether they expect anyone at their arraignment, their education, and other relevant queries. The CJA employee records the answers to these questions on a standardized form titled “Interview Report.” The employee also verifies the information provided by the arrestee with a third person, whose contact information the CJA employee obtains from the arrestee, and records that verification in a separate section of the form. The CJA employee then gives the completed form, including a recommendation on whether the arrestee is suitable for release, to the arraignment judge, the prosecutor, and defense counsel. * * *

We now clarify that in ascertaining whether out-of-court statements are testimonial, courts should inquire, as the U.S. Supreme Court has instructed, “whether in light of all the circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial testimony’ ” … . When that standard is met, the statement should be deemed testimonial for purpose of the Confrontation Clause. * * *

We find it significant that a CJA interview report is routinely prepared for all arrestees in New York City. The information collected is the same in every case, regardless of the particular facts or the elements of the relevant crime: the interviewer collects a predetermined set of pedigree information from the defendant and makes a recommendation to the court as to the defendant’s suitability for pretrial release … . People v Franklin, 2024 NY Slip Op 02227 CtApp 4-25-24

Practice Point: The Court of Appeals clarified and brought up-to-date its definition of “testimonial” evidence. A document is testimonial if its primary purpose is to create an out-of-court substitute for trial testimony. Here a form document filled out during an intake interview of every NYC arrestee which collects pedigree information was not testimonial, i.e., it was not created as a substitute for trial testimony.  Therefore the document could be admitted at trial as a business record without the need for testimony by the creator of the document.

 

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A GAP IN THE CHAIN OF CUSTODY OF THE DRUGS SEIZED FROM DEFENDANT AND A DISCREPANCY IN THE DESCRIPTIONS OF THE BAG CONTAINING THE DRUGS DID NOT RENDER THE DRUGS INADMISSIBLE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, determined a gap in the chain of custody and a discrepancy in the descriptions of the evidence did not render the evidence (white powder in plastic bags) inadmissible. Officer Lin, who seized the evidence, noted a rip in the larger plastic bag. But Osorio, the criminologist who analyzed the white powder, did not notice a rip in the larger bag:

… [T]he record indicates that the gap spanned, at most, only a few hours overnight and “[a]t all times, the drugs apparently remained safely under police control” in an identifiable location at a precinct station … . Officer Lin testified that she placed the evidence inside an envelope used to voucher drugs, and that the only other person in the office at the time was an administrative officer who was tasked with safeguarding such evidence. In leaving the evidence at the station to resume her patrol, Officer Lin followed a procedure intended to reduce opportunities for error and misconduct … . When Officer Lewis arrived to voucher the evidence, “the drugs were found precisely where they were supposed to be” … . * * *

Defendant also focuses on Osorio’s testimony that she did not “see” or write in her worksheet that there were rips in the plastic bags recovered from defendant, which he characterizes as irreconcilable with Officer Lin’s testimony about the torn condition of the larger bag. Defendant ignores that the bags were admitted into evidence at trial and the factfinder was expressly encouraged to examine them to confirm Officer Lin’s testimony. If the larger bag was torn in some way, Osorio’s mere failure to notice that defect would not support an inference of tampering. Because the bag is not part of the record on appeal, it is impossible to discern the existence or extent of any discrepancy, let alone conclude that it rendered the drugs inadmissible…. . People v Baez, 2024 NY Slip Op 02225, CtApp 4-25-24

Practice Point: Here the drugs seized from the defendant were left overnight in a room at the precinct before a voucher was created, and the officer who seized the drugs noticed a rip in the larger plastic bag but the criminologist who analyzed the drugs did not notice such a rip. Despite these issues, the chain of custody was sufficiently proven to render the drugs admissible in evidence.

 

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DOCCS MUST MAKE SOME EFFORT TO FIND COMMUNITY-BASED EMPLOYMENT, EDUCATIONAL OR TRAINING OPPORTUNITIES FOR SEX OFFENDERS HELD IN THE RESIDENTIAL TREATMENT FACILITY AT FISHKILL CORRECTIONAL FACILITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over two partial dissents by three judges, reversing (modifying) the appellate division, determined the Department of Corrections and Community Supervision (DOCCS) must make some effort to find community-based employment, educational or training opportunities for sex offenders held in the residential treatment facility (RTF) at Fishkill Correctional Facility:

Plaintiffs are convicted sex offenders who were confined in the Fishkill RTF while on postrelease supervision (PRS). Since 2014, DOCCS has used the Fishkill RTF to confine convicted sex offenders past the maximum expiration dates of their carceral sentences in circumstances where the offenders are unable to find housing in compliance with the requirements of the Sexual Assault Reform Act (SARA), which bars them from living within 1,000 feet of a school … . * * *

We agree with plaintiffs that DOCCS cannot categorically refuse to attempt to secure community-based opportunities for RTF residents. Crucially, while DOCCS surely has discretion in operating its RTF programs, the record here demonstrates that DOCCS is exercising no discretion with respect to community-based opportunities. DOCCS instead offers only speculation that the opportunities would be difficult to secure for the types of offenders housed in that RTF. To be sure, the statute [Correction Law § 73 [1]] establishes no percentage or threshold number of RTF residents who must be allowed outside the facility to engage in community-based activities. But defendants incorrectly construe the permissive phrase, “may be allowed to go outside,” to empower DOCCS to bar all RTF residents categorically from accessing community-based opportunities without considering whether such opportunities are available or appropriate. A comprehensive reading of the statutory provisions cannot support such a construction. By reading the permissive phrase in isolation, defendants read the definitional provision out of the statute, eviscerate the character and purpose of the RTF, and undermine the legislative intent. Alcantara v Annucci, 2024 NY Slip Op 02224, CtApp 4-25-24

Practice Point: The Department of Corrections and Community Supervision cannot interpret the Correction Law such that the purpose of the statute (here finding community-based employment, educational or training opportunities for sex offenders) is thwarted.

 

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ALLOWING EVIDENCE OF UNCHARGED CRIMES AND BAD ACTS UNDER MOLINEUX, AND ALLOWING DEFENDANT HARVEY WEINSTEIN TO BE CROSS-EXAMINED ABOUT THOSE UNCHARGED ALLEGATIONS UNDER SANDOVAL, DEPRIVED HIM OF A FAIR TRIAL; CRIMINAL SEXUAL ACT AND RAPE CONVICTIONS REVERSED AND NEW TRIAL ORDERED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over two three-judge dissenting opinions, reversing defendant’s criminal-sexual-act and rape convictions and ordering a new trial, determined the admission of evidence of uncharged crimes and bad acts under Molineux and the Sandoval ruling allowing the defendant to be cross-examined about the uncharged allegations, deprived defendant of a fair trial:

Before trial, the court granted the prosecution’s application to admit certain testimony of uncharged crimes and miscellaneous bad acts as an exception to the Molineux rule, prohibiting such evidence, to establish defendant’s intent and his understanding of the complainants’ lack of consent. Thus, Complainant B could testify about defendant’s uncharged sexual assaults against her before and after the charged rape and her awareness of defendant’s abusive and threatening behavior, and three other women (the “Molineux Witnesses”) could testify regarding defendant’s sexual misconduct towards them years before and after the charged offenses involving Complainants A and B.

The court also granted … the prosecution’s Sandoval application to cross-examine defendant on a broad range of uncharged bad acts should he testify. … [T]he prosecution was permitted to ask about, for example, whether defendant: directed a witness to lie to defendant’s wife; filed an application for a passport using a friend’s social security number; told a woman he “could harm her professionally” but could also offer her a book publishing opportunity; used his entertainment company’s budget for personal costs; withdrew from a business deal and asked others to cease its funding; hid a woman’s clothes; insisted that members of his staff falsify a photo for a movie poster by photoshopping a female actor’s head on another woman’s nude body; told a private intelligence firm to manipulate or lie to people; scheduled a business meeting in 2012 with a woman under false pretenses; induced executives to lie on his behalf; made threats and committed acts of violence against people who worked for him; abandoned a colleague by the side of the road in a foreign country; physically attacked his brother; threatened to cut off a colleague’s genitals with gardening shears; screamed and cursed at hotel restaurant staff after they told him the kitchen was closed; and threw a table of food. The court also permitted the prosecution to cross-examine defendant about the details of the sexual assault allegations described by the Molineux Witnesses during the prosecution’s case-in-chief. People v Weinstein, 2024 NY Slip Op 02222, CtApp 4-25-24

Practice Point: Molineux and Sandoval are still alive and kicking.

 

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A JUROR WAS CONVINCED DEFENDANT HAD FOLLOWED HER HOME AND SO INFORMED THE JURY DURING DELIBERATIONS; THE JUROR WAS “GROSSLY UNQUALIFIED” AND DEFENDANT’S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED (CT APP).

The Court of Appeals, reversing defendant’s conviction and ordering a new trial, in a full-fledged opinion by Judge Wilson, determined a juror should have been dismissed as “grossly unqualified,” and a mistrial should have been granted:

Upon a jury verdict, the trial court convicted Kenneth Fisher of three counts of third-degree criminal possession of a controlled substance (PL 220.16) arising from two controlled buy operations. He was sentenced to nine years in prison. One of the jurors in Mr. Fisher’s case was certain that Mr. Fisher had followed her home after the first day of jury selection, a belief the trial court deemed likely unfounded. Instead of promptly informing the court of her concern, she instead waited three days, until the case was submitted to the jury, and then expressed her safety concern to the other jurors as they deliberated. Those facts established that the juror was “grossly unqualified” pursuant to CPL 270.35, because it was clear she “possesse[d] a state of mind which would prevent the rendering of an impartial verdict” … . Although the trial judge then elicited some assurances that the juror could put aside her concerns, those assurances were insufficient to support a conclusion that the juror should be retained. Therefore, the juror should have been dismissed and a mistrial granted. * * *

Strongly held, prejudicial beliefs about the defendant which are not based on the trial evidence strike at the heart of the right to an impartial jury, and therefore render a juror “grossly unqualified” unless the bias can be cured or set aside. Given the extent of Juror Six’s prejudicial beliefs and her introduction of those beliefs into deliberations, it was error to conclude that the issue was cured merely by “yes” answers to formulaic questions. People v Fisher, 2024 NY Slip Op 02129, CtApp 4-23-24

Practice Point: A juror who believed defendant had followed her home and who so informed the jury during deliberations was “grossly unqualified” requiring a mistrial declaration.

 

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IT WAS NOT ERROR TO REMOVE THE DISRUPTIVE DEFENDANT FROM THE COURTROOM WITHOUT WARNING JUST PRIOR THE THE ANNOUNCEMENT OF THE VERDICT AND THE POLLING OF THE JURY; APPELLATE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RAISE THE “REMOVAL” ISSUE ON DIRECT APPEAL (CT APP).

The Court of appeals, in a full-fledged opinion by Judge Rivera, over an extensive dissenting opinion, reversing the grant of a writ of coram nobis, determined: (1) defendant was properly removed from court without warning before the verdict and the poll of the jurors; and (2) appellate counsel was not ineffective for failing to raise defendant’s removal from the court on direct appeal. Removal was justified by the defendant’s acts of violence, verbal abuse and screaming in the courtroom:

We reject the prosecution’s claim that any error was de minimis based on the timing of defendant’s removal from the courtroom. There is no material stage of the proceeding that is any less consequential to a defendant’s right to be present. However, we agree that the trial court’s actions were appropriate under the unique circumstances of this case and in no way contrary to law.

A defendant has a constitutional right “to be present at all material stages of their criminal trial,” which includes the reading of the verdict and the polling of the jury … . Further, CPL 260.20 provides that a defendant must be present during the trial but may be removed if they are “disorderly and disruptive” such that the “trial cannot be carried on with [the defendant] in the courtroom [] if , after [they] have been warned by the court that [they] will be removed if [they] continue such conduct, [they] continue to engage in such conduct.” A court may dispense with the constitutional and statutory warnings when it is impracticable to give them … . … That was the case here. * * *

The Appellate Division erroneously concluded that the trial court violated defendant’s right to be present, and therefore incorrectly granted defendant’s writ of error coram nobis on the sole ground that appellate counsel was ineffective for failing to raise this meritless claim on direct appeal … . People v Dunton, 2024 NY Slip Op 02130, CtApp 4-23-24

Practice Point: In situations where warning a disruptive defendant is impractical, it is not error to remove the defendant from the courtroom without warning. Here defendant was removed just prior to the announcement of the verdict and the polling of the jurors, a material stage of the trial. Under the unique circumstances of this case defendant’s removal was not error.

 

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IN THIS MENTAL HYGIENE LAW ARTICLE 10 PROCEEDING TO DETERMINE WHETHER RESPONDENT SEX OFFENDER SUFFERED FROM A MENTAL ABNORMALITY WARRANTING CIVIL MANAGEMENT, THE JUDGE CONFLATED TWO DIFFERENT LEGAL STANDARDS, ERRONEOUSLY FOUND THAT A MENTAL ABNORMALITY CANNOT BE PROVEN BY A CONSTELLATION OF CONDITIONS, DISEASES AND DISORDERS, AND IMPROPERLY RELIED ON OUTSIDE RESEARCH (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Singh, over an extensive dissenting opinion, reversing Supreme Court and ordering a new trial, determined several errors by the judge in this Mental Hygiene Law article 10 proceeding tainted the judge’s finding that the state had not proven respondent sex offender suffered from a mental abnormality and required civil management:

This article 10 proceeding arose out of respondent Richard V.’s 2002 conviction of rape in the first degree. In October 2001, respondent and an accomplice posed as plumbers to gain entry to the apartment of a female acquaintance. After the woman brought them inside, respondent subdued her with pepper spray, restrained her, repeatedly attacked her, threatened to kill her, and twice violently raped her.* * *

The sole issue at the bench trial was whether respondent suffers from a mental abnormality that “predisposes [him] to the commission of conduct constituting a sex offense” resulting in “having serious difficulty [] controlling such conduct” … . At the second stage of an article 10 proceeding — the dispositional phase — the standard is whether a respondent has “such an inability to control his behavior that [he] is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” …

There can be little dispute that Supreme Court conflated the applicable legal standards. * * *

… Supreme Court committed reversible error in finding that the State could not use a “constellation” of conditions, diseases, and disorders to establish that respondent has a mental abnormality. * * *

Supreme Court’s extensive usage of outside research blurred the lines between the roles of judge and counsel, depriving the parties of the opportunity to respond … . Matter of State of New York v Richard V., 2024 NY Slip Op 02158, First Dept 4-23-24

Practice Point: When a judge does outside research to inform the decision, the parties are deprived of the opportunity to respond.

 

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