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Unpreserved Erroneous Denial of Challenge to Juror Required Reversal

The Second Department, in the interest of justice, reversed defendant’s conviction based on the trial court’s (unpreserved) error in denying defense counsel’s challenge to a juror for cause.  (Defense counsel did not challenge the juror on the specific ground raise on appeal):

Here, during voir dire, a prospective juror stated, “[j]ust my upbringing tells me that the police saw fit to arrest and the District Attorney saw fit to prosecute, so that automatically renders my opinion.” The prospective juror never unequivocally stated that his prior state of mind regarding the police and the District Attorney would not influence his verdict, and that he would render an impartial verdict based solely on the evidence. His responses as a whole showed that there was doubt as to his ability to be impartial. Therefore, the trial court erred in denying defense counsel’s application to discharge this prospective juror for cause … . Because defense counsel exercised a peremptory challenge against this prospective juror, and also exhausted his allotment of peremptory challenges, this error cannot be considered harmless … . People v Campbell, 2013 NY Slip Op 07500, 2nd Dept 11-13-13

 

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Defendant Should Have Been Allowed to Present Evidence Relating to Victim’s Recantation at SORA Hearing

The Second Department determined that Supreme Court should have allowed defendant to present evidence (at the SORA hearing) of the victim’s (his daughter’s) recantation of her allegations of sexual abuse, including the testimony of the victim:

The Supreme Court erred in precluding the defendant from offering into evidence affidavits from his daughter recanting the underlying allegations of sexual abuse, and denying the defendant’s motion in limine to permit his daughter to testify at the SORA hearing. At a SORA hearing, “[t]he court shall allow the sex offender to appear and be heard” (Correction Law § 168-n[3]). The People bear of the burden of establishing, by clear and convincing evidence, the facts supporting the assessment of points under the Guidelines issued by the Board of Examiners of Sex Offenders under the Sex Offender Registration Act (see Correction Law article 6-C [hereinafter SORA]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]). The SORA court “shall review any victim’s statement and any relevant materials and evidence submitted by the sex offender and the district attorney and the recommendation and any materials submitted by the board, and may consider reliable hearsay evidence submitted by either party, provided that it is relevant to the determinations” (Correction Law § 168-n[3]). Further, “[f]acts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated” (Correction Law § 168-n[3]). Here, the only facts elicited at the time of the defendant’s plea of guilty were that, on one occasion, he touched his daughter’s breasts and that he did so for sexual gratification, and therefore he was barred from relitigating those facts in this SORA proceeding (see Correction Law § 168-n[3]). However, the defendant was entitled to rely upon the proffered evidence for the limited purpose of contesting the People’s allegations that he engaged in intercourse with his daughter and that the sexual misconduct was ongoing, which resulted in the assessment of points under risk factors 2 and 4. Since the excluded evidence was relevant to material issues at the hearing (i.e., the nature and duration of the sexual contact), the defendant should have been permitted to introduce it… . People v Holmes, 2013 NY Slip Op 07459, 2nd Dept 11-13-13

 

Consecutive Sentences for Possession of Weapon and the Crime Committed Later with the Weapon Okay

In a full-fledged opinion by Judge Read, the Court of Appeals determined “a sentence imposed for ‘simple’ knowing, unlawful possession of a loaded weapon (i.e., without any intent to use) was properly run consecutively to the sentence for another crime committed with the same weapon.  [The defendants in these cases] completed the crime of possession independently of their commission of the later crimes, and therefore consecutive sentencing was permissible.”  The court explained:

The mens rea for any crime “‘can be formed, and need only exist, at the very moment the person engages in prohibited conduct or acts to cause the prohibited result, and not at any earlier time'” … .  The mens rea for “simple” possession is knowing unlawful possession of a loaded firearm.  So long as a defendant knowingly unlawfully possesses a loaded firearm before forming the intent to cause a crime with that weapon, the possessory crime has already been completed, and consecutive sentencing is permissible.  People v Brown… 199, 200, 201, CtApp 11-14-13

 

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Representation by Counsel on Unrelated Matter Recently Concluded by Conviction Did Not Preclude Defendant from Validly Waiving Right to Counsel

The Fourth Department noted that the representation of defendant by counsel in an unrelated matter which had just been disposed of by conviction did not prevent defendant from validly waiving his right to counsel when interviewed by the police about the instant charge:

“Under New York’s indelible right to counsel rule, a defendant in custody in connection with a criminal matter for which he is represented by counsel may not be interrogated in the absence of his attorney with respect to that matter or an unrelated matter unless he waives the right to counsel in the presence of his attorney” … .  However, “[w]hen the prior charge has been disposed of by dismissal or conviction, the indelible right to counsel disappears and the defendant is capable of waiving counsel on the new charge” … .  Here, a police detective testified at the Huntley hearing that defendant had been sentenced on the unrelated criminal case before the detective questioned him regarding these crimes, and County Court therefore properly determined that the police were not precluded from questioning him regarding the instant crimes … .  We reject defendant’s contention that the right to counsel lasted until at least 30 days after sentencing, to allow for the filing of a notice of appeal … . People v Koonce, 1031, 4th Dept 11-8-13

 

Maximum Sentence Deemed Unduly Harsh and Severe

The Fourth Department determined the imposition of the maximum sentence for criminal possession of a weapon in the second degree (15 years) was unduly harsh and severe:

Defendant has no prior felony convictions, and he served four years in the United States Navy, receiving an honorable discharge.  Also, it is undisputed that defendant did not threaten anyone with the weapon or use it in a violent manner. Although we are mindful that defendant’s actions endangered the lives of innocent people, including the police officers who were pursuing his vehicle, we conclude that the maximum punishment is not warranted. We therefore modify the judgment as a matter of discretion in the interest of justice by reducing the sentence imposed for criminal possession of a weapon in the second degree to a determinate term of imprisonment of 10 years (see generally CPL 470.15 [6] [b]), to be followed by the five-year period of postrelease supervision imposed by the court. People v Atchison, 1091, 4th Dept 11-8-13

 

Temporary Lawful Possession of Weapon Defense Disproved/Justification Defense in Context of Criminal Possession of a Weapon Explained

The Fourth Department determined the evidence was sufficient to disprove defendant’s defense of temporary and lawful possession of a weapon, and explained how the justification defense relates to criminal possession of a weapon:

Even if, as defendant contends, he originally acquired the gun by disarming his alleged assailant in the course of a robbery, we conclude that the evidence is legally sufficient to establish that he thereafter possessed it with the requisite unlawful intent … .  After evading his alleged robber, defendant returned to the scene of the robbery with the gun drawn and fired five shots, one of which struck his alleged assailant in the leg. Defendant then regained possession of his property, a duffel bag containing $27,000 in cash, and fled upon the approach of the police. Such conduct is “utterly at odds with [defendant’s] claim of innocent possession . . . temporarily and incidentally [resulting] from . . . disarming a wrongful possessor”… .

Defendant further contends that he had no duty to retreat, but was justified in acting as he did, because the People failed to prove that he could have retreated with complete safety.  We reject that contention.  It is well settled that the defense of justification, which involves the “justifiable use of physical force” (Penal Law § 35.05 …), does not apply to criminal possession of a weapon … .  Thus, the “duty to retreat” rule, which applies to the defense of justification in connection with the use of deadly physical force (see § 35.15 [2] [a]), is not relevant here. Nonetheless, justification is relevant to a defendant’s intent in using a weapon.  In other words, “[t]he use of a firearm to engage in conduct that is justifiable under the law is not unlawful.  Thus, an intent to use a firearm against another justifiably is not an intent to use it unlawfully” … .  Here, however, the evidence is legally sufficient to establish that defendant “possessed the firearm with the intent to use it against another unlawfully and not solely with the intent to use it justifiably”… . People v Bailey, 1080, 4th Dept 11-8-13

 

People’s Delay In Providing Bill of Particulars Did Not Require Dismissal Under Speedy Trial Statute

The Fourth Department determined that the People’s delay in providing a bill of particulars did not require dismissal of the indictment pursuant to the speedy trial statute:

…[D]efendant asserted that the People’s bill of particulars was due on January 7, 2009—15 days after defendant’s request (see CPL 200.95 [2])—but that it was not served until August 10, 2009.  According to defendant, the time period from January 7 to August 10, which exceeds six months, constitutes postreadiness delay that should be charged to the People, thus warranting dismissal under CPL 30.30.  We reject that contention. Prior to their failure to serve a timely bill of particulars, the People announced their readiness for trial on the record, and “[f]ailing to serve a bill of particulars is in no way inconsistent with the prosecution’s continued readiness” … .  We addressed a similar contention in People v Runion (107 AD2d 1080), determining that “[t]he court should not have granted the motion made under CPL 30.30 to dismiss the indictment because of the delays of the prosecutor, after she had announced her readiness for trial, in providing discovery materials and in serving a supplemental bill of particulars.  Defendant’s remedies for such delays do not include dismissal under CPL 30.30” (id. at 1080).  People v Griffin, 1154, 4th Dept 11-8-13

 

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Prosecutorial Misconduct Noted (Conviction Upheld However)

In affirming defendant’s conviction, the Fourth Department noted its agreement with defendant’s assertions of prosecutorial misconduct:

We agree with defendant that it was improper for the prosecutor to remark that a witness was afraid of defendant inasmuch as that was not a fair comment on the evidence … .  We further agree with defendant that the prosecutor improperly used defendants past crimes of violence to suggest that the witness had “a reason to be afraid.”  It is fundamental that the function of crossexamining a defendant about his or her prior criminal, vicious, or immoral acts “is solely to impeach [the defendant’s] credibility as a witness” … .  Nevertheless, we conclude that the prosecutor’s isolated remarks were not so egregious as to deprive defendant of a fair trial …, particularly considering that this was a bench trial… .  People v King, 1135, 4th Dept 11-8-13

 

Shooting Accomplished With Two Weapons Constituted a Single Continuing Offense/Indictment Not Duplicitous

Over a dissent, the Fourth Department determined a shooting accomplished with more than one weapon did not constitute two distinct offenses, but rather constituted a continuing offense, and, therefore, the indictment was not duplicitous:

It is well established that, “ ‘[w]here an offense may be committed by doing any one of several things, the indictment may, in a single count, group them together and charge the defendant with having committed them all, and a conviction may be had on proof of the commission of any one of the things, without proof of the commission of the others’ ” … .  Contrary to the position of the dissent, we conclude that the evidence at trial established that the multiple shots fired from two separate firearms “constitute[d] a single uninterrupted assault rather than a series of distinct criminal acts . . . , and the assault ‘occurred over a short time frame, without apparent abeyance, and was triggered by a single incident of anger’ ” … .  “The fact that more than one dangerous instrument allegedly was used by the defendant[], and more than one [shot] was [fired] causing the [victim] several injuries, does not transform this single criminal incident into multiple assaults or acts of [reckless endangerment] which must be charged by separate counts” … .  We respectfully disagree with the position of the dissent that there were separate impulses with an abeyance between them.  Rather, the evidence established that defendant assaulted the victim and his fiancée in an attempt to seek revenge for the fiancée’s alleged assault on defendant’s sister. There was one motive and one impulse:  to seek revenge.  We see no distinction between a situation in which an assaulting defendant takes the time to reload one weapon and one in which the assaulting defendant takes the time to obtain a second weapon with the single impulse of continuing the ongoing assault.

With respect to the count of reckless endangerment in the first degree, the conduct encompassed by that count was the act of endangering the life of the victim’s fiancée, who was in the vicinity of the victim the entire time defendant was shooting at the victim. “Where . . . a crime by its nature as defined in the Penal Law may be committed either by one act or by multiple acts and can be characterized as a continuing offense over time, the indictment may charge the continuing offense in a single count” … .  Under the circumstances of this case, the crime of reckless endangerment “involved a continuing offense” and could therefore encompass multiple acts in one count without being duplicitous … .  In our view, the fact that the multiple shots were fired from two separate firearms did not transform this continuing offense into two separate offenses.  We disagree with the dissent’s assumption that the fiancée was “potentially out of harm’s way” when she sought refuge in a vehicle during the barrage of gunshots inasmuch as the vehicle was still in the vicinity of the gunshots.  “[R]eckless endangerment is a conduct specific . . . crime,” and here the conduct underlying that count of the indictment was the firing of multiple gunshots in the vicinity of the fiancée … .  We thus conclude that the indictment was not rendered duplicitous by the court’s instruction that the jury could find defendant guilty of the assault and reckless endangerment charges if it found that defendant used either firearm or both.   We reject the view of the dissent that “ ‘there were two distinct shooting incidents’ ” … .  People v Flanders, 963, 4th Dept 11-8-13

 

Criteria for CPL 440.20 Motion Explained/Predicate Offenses Must Run Concurrently

The Fourth Department noted the trial court applied the wrong criteria to defendant’s motion pursuant to CPL 440.20 to vacate his consecutive sentences and determined defendant’s sentences must run concurrently.  Either the robbery or forgery count could serve as the predicate for the felony assault count and therefore the sentences for the predicate counts must run concurrently with the sentence for felony assault:

…[T]he court erred in denying the motion on the ground that defendant could have raised this issue on his direct appeal.  Mandatory denial of a motion pursuant to CPL 440.20 is required only when the issue “was previously determined on the merits upon an appeal from the judgment or sentence” (CPL 440.20 [2]), which in this case it was not … .  The court erred in conflating the provisions of CPL 440.10 with those of CPL 440.20.  The procedural bar set forth in CPL 440.10 (2) (c) “applies only to motions made pursuant to section 440.10, and it is undisputed that the instant motion was made pursuant to section 440.20” … .

We agree with defendant that the consecutive sentences for the robbery and forgery counts are illegal under the facts of this case. The indictment and charge to the jury set forth that either count could serve as the predicate for the count of felony assault, and thus the predicate counts must run concurrently with the count of felony assault … .  The sentences imposed on the counts of robbery and forgery must therefore also run concurrently… . People v Povoski, 1050.1, 4th Dept 11-8-13

 

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