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Invocation of Right to Counsel When Not in Custody Can Be Withdrawn Without Attorney Present

The Third Department determined defendant’s invocation of his right to counsel when he was not in custody (on September 4, 2004) could be withdrawn without an attorney present and did not, therefore, require the suppression of subsequent statements made three weeks later:

The right to counsel indelibly attaches in two limited situations – where formal judicial proceedings against a defendant have commenced and where an uncharged defendant, who is in custody, has retained or requested an attorney … .  However, “[a] suspect who is not in custody when he or she invokes the right to counsel can withdraw the request and be questioned by the police” … .  As defendant was not in custody at the time he invoked his right to counsel on September 4, 2009, he was free to withdraw that request or waive such right and speak with the police without having an attorney present – particularly in view of the approximately three weeks that elapsed between his initial request for an attorney and his subsequent statements to law enforcement … . People v Cade, 103443, 3rd Dept 10-24-13

 

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Loss of Teeth is “Serious Injury” Re: Assault Second

The First Department determined the loss of teeth (in an assault) was a “serious injury” within the meaning of Penal Law 10.00 (10) because the loss of teeth constituted a “serious and protracted disfigurement” notwithstanding replacement by a prostheses:

The element of serious physical injury (Penal Law § 10.00[10]) was established, because the victim’s permanent loss of four front teeth constituted a protracted impairment of her health or protracted loss or impairment of the function of a bodily organ … . Since the teeth are lost, the victim can never eat with them, notwithstanding that she has been fitted with a prosthetic device; accordingly, her loss is not just protracted, but permanent. While the fact that damage to an organ has been successfully repaired may affect whether the injury qualifies as serious …, this does not apply when the organ is permanently lost, irrespective of whether it is replaced by a prosthesis.

Furthermore, the victim’s loss of four front teeth also constituted a “serious and protracted disfigurement,” since “a reasonable observer would find her altered appearance distressing or objectionable” … . The fact that the victim received a removable prosthetic device did not ameliorate the seriousness of her injuries, since whenever she removes the device, the disfigurement will be readily apparent.  People v Everett, 2013 NY Slip Op 06954, 1st Dept 10-24-13

 

 

Partial Closure of Courtroom During Testimony of Undercover Police Okay

he Second Department determined partial closure of the courtroom during the testimony of undercover police detectives was proper:

…[T]he court providently adopted a reasonable alternative to full closure of the courtroom, excluding the general public and allowing the defendant’s sister and the defendant’s friend to be present during the testimony of the two undercover detectives, and placing a blackboard in front of the detectives so as to shield their identities from the sister and the friend. The two undercover detectives testified at a Hinton hearing … that they had conducted a long-term undercover operation in the particular housing project where the defendant had been arrested, and that there were unapprehended or “lost” subjects from that investigation. Further, they both testified that they had been threatened by subjects in the past and their safety would be jeopardized if their identities were revealed, that they both planned to conduct future narcotics operations in the area and that one detective planned to return to the particular housing project, that they currently had pending cases in the courthouse in which they were testifying, and that they took special precautions when testifying in court so as to protect their identities. Contrary to the defendant’s contention, this testimony exceeded mere “unparticularized impressions of the vicissitudes of undercover narcotics work in general” and included particularized references to their own work which established a specific link between their safety concerns and open-court testimony in this case … . People v Tate, 2013 NY Slip Op 06882, 2nd Dept 10-23-13

 

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Effect of Witness’ Invocation of Fifth Amendment Privilege on Fairness Explained

The Second Department explained when a witness’ asserting the privilege against self-incrimination constitutes reversible error and noted that the introduction of a photograph of the murder victim when he was alive was (harmless) error:

“[A] witness’s invocation of the Fifth Amendment privilege may amount to reversible error in two instances: one, when the prosecution attempts to build its case on inferences drawn from the witness’s assertion of the privilege, and two, when the inferences unfairly prejudice defendant by adding critical weight’ to the prosecution’s case in a form not subject to cross-examination” … . “Absent a conscious and flagrant attempt by the prosecutor to build a case out of the inferences arising from the use of the testimonial privilege or without some indication that the witness’s refusal to testify adds critical weight to the People’s case in a form not subject to cross-examination, reversal is not warranted” … . Under the circumstances presented here, invocation of the Fifth Amendment privilege against self-incrimination by a prosecution witness did not add critical weight to the prosecution’s case, and the defendant was not deprived of his right to a fair trial by that testimony… .  People v Berry, 2013 NY Slip Op 06872, 2nd Dept 10-23-13

 

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Error to Preclude Witness for Sexual Offender in Article 10 Proceeding

In a Mental Hygiene Law article 10 proceeding to determine whether Enrique D, a sexual offender, suffered from a mental abnormality justifying civil confinement, the Court of Appeals determined the judge erred in refusing to allow a former girlfriend, Naomi N, to testify about whether Enrique ever tried to offend against her and whether Enrique respected her “boundaries:”

In the circumstances of this case, Supreme Court abused its discretion by precluding Naomi N. from testifying.  Mental Hygiene Law § 10.08 (g) provides that a respondent in an article 10 proceeding “may, as a matter of right, testify in his or her own behalf, call and examine other witnesses, and produce other evidence in his or her behalf.”  This provision manifestly does not limit a respondent to expert witnesses.  The pertinent question is whether a witness — expert or lay — has material and relevant evidence to offer on the issues to be resolved.

Here, Naomi N.’s rejected testimony was relevant to the State expert’s diagnosis of paraphilia NOS — non-consent.  The jury was asked to decide whether Enrique D. suffered a condition, disease, or defect that predisposed him to commit sex offenses, and whether that condition caused him serious difficulty in controlling his sex offending conduct.  With respect to the first prong, Naomi N.’s testimony would have called into question whether Enrique D. exhibited a longstanding fixation on nonconsenting women; as to the second, her testimony was relevant to show whether he experienced difficulty controlling his sexual behavior.  Matter of State of New York v Enrique D, 168, CtApp 10-22-13

 

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Recklessness Demonstrated In Operation of Vehicle

In a full-fledged opinion by Judge Graffeo, the Court of Appeals affirmed defendant’s convictions for reckless manslaughter and reckless assault after defendant’s car struck another car head on.  There was evidence defendant was deliberately speeding (134 mph) in an area he knew to include a sharp turn.  The court explained the difference between recklessness and criminal negligence in this context:

The mental states of recklessness and criminal negligence share many similarities.  Both require that there be a “substantial and unjustifiable risk” that death or injury will occur; that the defendant engage in some blameworthy conduct contributing to that risk; and that the defendant’s conduct amount to a “gross deviation” from how a reasonable person would act (compare Penal Law § 15.05 [3] [Recklessly] with Penal Law  § 15.05 [4] [Criminal Negligence]).  The only distinction between the two mental states is that recklessness requires that the defendant be “aware of” and “consciously disregard” the risk while criminal negligence is met when the defendant negligently fails to perceive the risk … .

In the context of automobile accidents involving speeding, we have held that the culpable risk-creating conduct necessary to support a finding of recklessness or criminal negligence generally requires “some additional affirmative act” aside from “driving faster than the posted speed limit” … .  Here, there was ample proof that defendant did more than merely drive faster than the legal limit — indeed, there was eyewitness testimony that he was traveling at more than double the posted speed limit of 55 miles per hour.  Moreover, before the collision, defendant stopped his vehicle in the middle of the unlit road and revved the engine. He then hit the gas pedal and accelerated to an extremely high rate of speed before crossing the double line into oncoming traffic.  Viewed in the light most favorable to the People, the evidence showed that defendant used a public road as his personal drag strip to showcase the capabilities of his modified sports car.  Although the jury acquitted defendant of driving while ability impaired (by alcohol), there was evidence that he had been drinking and smoking marijuana that evening … .  The evidence therefore demonstrated that defendant engaged in conduct exhibiting “the kind of seriously blameworthy carelessness whose seriousness would be apparent to anyone who shares the community’s general sense of right and wrong” … .

Furthermore, the proof was sufficient to support the jury’s conclusion that defendant acted recklessly — by consciously disregarding the risk he created — as opposed to negligently failing to perceive that risk.  Defendant was familiar with the curve in the road …, having driven by there on a number of prior occasions, and he had been warned twice about speeding into that very section of the road. People v Asaro, 158, CtApp 10-22-13

 

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Ineffective Assistance On Suppression Issues—Case Sent Back

The Court of Appeals, over two dissenters, determined defendant had not been provided with effective assistance counsel with respect to the motion to suppress and suppression hearing.  The court sent the matter back to properly consider the suppression issues, stating that if defendant prevailed on suppression the conviction should be vacated and the indictment dismissed:

In his written motion requesting a hearing, counsel misstated the facts relating to the arrest, indicating that defendant had been involved in a motor vehicle stop rather than a street encounter with police.  At the suppression hearing, the attorney did not marshal the facts for the court and made no legal argument.  This, coupled with his failure to make appropriate argument in his motion papers or to submit a posthearing memorandum, meant that the defense never supplied the hearing court with any legal rationale for granting suppression. Moreover, after the court issued a decision describing the sequence of events in a manner that differed significantly from the testimony of the police officer (the only witness at the hearing) and was adverse to the defense, defendant’s attorney made no motion to reargue or otherwise correct the court’s apparent factual error.  Counsel never ascertained whether the court decided the motion based on the hearing proof or a misunderstanding of the officer’s uncontradicted testimony.

And this is not a case where any of these errors can be explained as part of a strategic design (assuming one could be imagined), given that defense counsel asked to be relieved, informing the court that he was unable to provide competent representation to defendant.  Thus, although the attorney secured a hearing, his representation in relation to the application as a whole was deficient in so many respects — both before, during and after the proceeding — that defendant was not afforded meaningful representation at a critical stage of this prosecution.  People v Clermont, 166, CtApp 10-22-13

 

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Accomplice Testimony Corroboration Insufficient Under Law Read to Jury

Even though the evidence of corroboration of accomplice testimony was sufficient under People v Reome, 15 NY3d 188 [2010], the Court of Appeals held it was not sufficient under the stricter criteria of People v Hudson, 51 NY2d 233 [1980] which Reome overruled. Because the jury was read the Hudson criteria, that criteria applied and the evidence of corroboration was not sufficient to support conviction:

Under the Hudson standard, the corroborating evidence was insufficient.  The evidence that was “independent” of the accomplice testimony in the Hudson sense proved, at most, that defendant had driven a minivan that was the same color as a car that was used to commit some of the crimes charged.  This by itself did not tend “to connect the defendant with the commission” of the crimes (CPL 60.22 [1]).  People v Rodriguez, 169, CtApp 10-17-13

 

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Failure to Move to Dismiss Indictment on Speedy Trial Grounds Constituted Ineffective Assistance of Counsel—Inexcusable Post-Indictment Delay Required Dismissal

The Third Department determined defense counsel’s failure to move to dismiss the indictment on speedy trial grounds constituted ineffective assistance of counsel, requiring that defendant’s motion to withdraw his guilty plea be granted, and the postindictment delay, for which the People had no adequate excuse, required that the indictment be dismissed:

A Washington County grand jury handed up a four-count sealed indictment in October 2011 charging defendant with criminal sale and possession of controlled substances occurring in September and November 2010.  An arrest warrant was issued and provided to the State Police, who for well over six months were reportedly unable to locate defendant, who had relocated, until he was arrested during a traffic stop in Chautauqua County, where he had been residing.  He was arraigned on the indictment on June 14, 2012. * * *

…[D]efendant’s ineffectiveness of counsel claim was preserved by his motion to withdraw his plea and adequately alleges that it impacted the voluntariness of his plea and appeal waiver, so as to survive both … .  Thus, we address defendant’s speedy trial claim in the context of ascertaining whether he was deprived of meaningful representation, mindful that “[a] single error of failing to raise a meritorious speedy trial claim [may be] sufficiently egregious to amount to ineffective assistance of counsel” … . * * *

The People’s fleeting description of the efforts made to locate defendant fell far short of “all reasonable efforts to enforce judicially issued warrants” … required to satisfy the “due diligence” standard (CPL 30.30 [4] [c] [i]).  As such, the People failed to meet their burden of establishing the statutory exclusion for this postindictment prereadiness delay … . Accordingly, all of this unready time would be chargeable to the People … . People v Devino, 105441, 3rd Dept 10-17-13

 

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Leading Questions and Elicitation of Hearsay in Grand Jury Proceedings Did Not Constitute Prosecutorial Misconduct

The Third Department reversed County Court and determined leading questions and elicitation of hearsay in the grand jury proceedings did not constitute prosecutorial misconduct:

“Dismissal of an indictment pursuant to CPL 210.35 (5) is a drastic, exceptional remedy and should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the [g]rand [j]ury” … .  Contrary to County Court’s finding, the record as a whole does not reveal a “pervasive mishandling” of the manner in which this case was presented to the grand jury.  To the extent that the prosecutor asked leading questions or elicited hearsay testimony from the various witnesses, we note that “not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective.  [Rather], the submission of some inadmissible evidence [typically] will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment” … .  Inasmuch as we are satisfied – based upon our review of the grand jury minutes – that there otherwise is legally sufficient (and admissible) evidence to sustain count 1 of the indictment, the isolated instances of hearsay testimony, which were accompanied by appropriate limiting instructions, do not warrant dismissal thereof … .  We similarly are persuaded that the prosecutor’s limited use of leading questions did not impair the integrity of the grand jury proceeding… . People v Miller, 105721, 3rd Dept 10-17-13

 

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