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Exclusion of Defense Counsel’s Colleague from a Wade Hearing Deprived Defendant of His Right to a Public Trial

The First Department, in a full-fledged opinion by Justice Richter, reversed a conviction finding the defendant was denied his right to a public trial. To protect the undercover officer and others, the defendant was excluded from the Wade hearing concerning the validity of the undercover officer’s identification of the defendant.  The trial court, in ordering partial closure of the courtroom, had allowed defense counsel, and colleagues of defense counsel, to be present during the hearing. During the hearing, defense counsel’s officemate was denied entry to the courtroom by the court officer stationed at the door, who had consulted with the sergeant inside the courtroom.  The First Department determined the exclusion of the defendant from the hearing was proper, but the exclusion of the attorney required reversal.  The court wrote:

Here, the undercover was the critical witness, and excluding defense counsel’s colleague from the courtroom during this time was not inconsequential. Furthermore, defense counsel explained that the excluded attorney was his officemate, with whom he had consulted about the case. The court also acknowledged that the excluded attorney had substantial experience in criminal defense cases. Although there would have been a problem even if the attorney had no such experience or connection to the case, the exclusion here was particularly troubling because defense counsel alerted the court that his colleagues might be coming, and the excluded attorney could have been of assistance to defense counsel during this critical phase of the trial … .  *  *  *

…[T]he exclusion of defense counsel’s colleague interfered with the very purpose of the requirement of a public trial. The requirement that the courtroom be open whenever possible and that closure orders be narrowly tailored “is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions” …. Excluding defense counsel’s experienced colleague, who was familiar with the case, deprived defendant of his right to have this person present to assess the undercover’s testimony, and enabled the People to present the undercover’s testimony without the salutary effects of extra scrutiny.  People v Moise, 2013 NY Slip Op 05550, 1st Dept, 8-6-13

 

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DNA Evidence Which Excluded Defendant Was Not Enough to Warrant Vacation of Conviction, or Even a Hearing on the Motion to Vacate

Defendant was convicted of the rape of one victim and the murder of another during an incident in 1980.  Over a substantial dissent, the First Department determined that the recent DNA test results re: hairs found on the perpetrator’s hat and DNA found under the fingernails of the murder victim—results which ruled out the defendant—did not warrant vacation of defendant’s conviction pursuant to a CPL 440 motion, and did not warrant a hearing.  The First Department noted the strength of the identification evidence provided by the rape victim and the fact that only three of 18 hairs taken from the hat were tested by the defense.  The majority of the First Department wrote:

Defendant has not established that the newly discovered DNA evidence “is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to [him]” … * * *

In deciding a CPL 440.10 motion, a hearing to develop additional facts is not “invariably necessary”; rather, CPL 440.30 contemplates that a court will make an initial determination on the written submissions whether the motion can be decided without a hearing … . Here, we find that even if the reliability of the evidence is assumed, defendant still did not establish a legal basis for ordering a new trial. Accordingly, the factual disputes in this case were not material, and defendant was not prejudiced by the absence of a hearing.

The dissent wrote:

I respectfully dissent, because I believe the motion court should have granted defendant further DNA testing and held an evidentiary hearing before determining his motion under CPL 440.10.  People v Jones, 2013 NY Slip Op 05547, 1st Dept 8-6-13

 

 

Sentence for Which Merit Time Allowance Is Not Available Did Not Preclude Application for Resentencing Under Drug Law Reform Act

The Third Department, over a dissent, declined to follow the 2nd Department in its application of CPL 440.46 (Drug Law Reform Act).   The defendant was eligible to apply for resentencing based upon his offense, but, under the sentence defendant was serving at the time of his application for resentencing, he was not entitled to a merit time allowance pursuant to the Correction Law.  The Third Department determined defendant was eligible to apply for resentencing:

Although defendant, having been sentenced pursuant to his drug offense convictions as a persistent felony offender, is serving a sentence that would preclude him from earning merit time pursuant to Correction Law § 803 (see Correction Law § 803 [1] [d] [ii]; Penal Law § 70.10 [2]), he was not convicted of an “offense for which a merit time allowance is not available” (CPL 440.46 [5] [a] [ii] [emphasis added]; see Penal Law §§ 10.00 [1]; 220.39).  This distinction is significant.  The Penal Law states:

“‘Offense’ means conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state, or by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same” (Penal Law § 10.00 [1]).

Defendant’s offense and his sentence are thus two separate components that we decline to conflate for purposes of depriving an otherwise eligible person of the benefits of the remedial legislation that we are tasked with interpreting here.  To the extent that the [2nd] Department held to the contrary in People v Gregory (80 AD3d 624 [2011], lv denied 17 NY3d 806 [2011]), we decline to follow that case.  Accordingly, we find that defendant is eligible to apply for resentencing pursuant to the Drug Law Reform Act of 2009, and County Court erred in denying defendant’s motion.  People v Coleman, 104851, 3rd Dept 8-1-13

 

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DNA Reports Did Not Violate Right to Confrontation; Reports Admissible as Business Records

In finding DNA-profile reports generated by the City of New York’s Medical Examiner did not violate defendant’s right to confrontation, the Second Department wrote:

The reports contained no conclusions, interpretations, comparisons, or subjective analyses, and “consisted of merely machine-generated graphs” and raw data … . Accordingly, the reports were not “testimonial” in nature … .

Further, a foundation for the admission of these reports as business records was established through the testimony of an assistant director employed by the Office of the Chief Medical Examiner of the City of New York (see CPLR 4518[a]…), who also conducted the actual analysis and interpretation of the data contained in the reports at issue.  People v Fucito, 2013 NY Slip Op 05538, 2nd Dept 7-31-13

 

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Depraved Indifference Murder of Child Count Should Not Have Been Dismissed Based On the Grand Jury Evidence In Spite of Difficulty of Proving the Count at Trial

The Third Department determined the trial court should not have dismissed the count of the indictment which charged defendant with depraved indifference murder of a child.  While acknowledging the prosecution may have difficulty proving the charge at trial, the court determined that a logical inference from the grand-jury proof was that the injuries defendant inflicted on the child were immediately and obviously very serious and defendant callously delayed getting help while minimizing his conduct and the seriousness of the injuries.  In explaining the general criteria for the sufficiency of grand jury evidence, the court wrote:

In reviewing a motion to dismiss an indictment, courts view the evidence in a light most favorable to the People and determine only whether the evidence presented to the grand jury was legally sufficient … . “In the context of grand jury proceedings, ‘legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt’… .  “The reviewing court’s inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes” … .  “[I]f the prosecutor has established a prima facie case, the evidence is legally sufficient even though its quality or weight may be so dubious as to preclude indictment or conviction pursuant to other requirements” … .  People v Waite, 105416, 3rd Dept 7-25-13

 

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Defendant’s Statements Made in Pre-Trial Plea Negotiations Should Not Have Been Admitted at Trial

The Second Department determined the prosecutor should not have been allowed to introduce at trial statements made by the defendant in plea negotiations (the error was deemed harmless however):

The defendant and the People executed an agreement, whereby they agreed that the People could introduce those statements against the defendant at a trial, inter alia, “to rebut any evidence” offered by him or on his behalf. At the trial, the Supreme Court found that the defendant had triggered this provision of the agreement and permitted the People to introduce the subject statements.

Statements made during the course of plea negotiations can be used against a defendant only if the People specifically bargained for that…. Under the circumstances of this case, the Supreme Court improperly found that the defendant’s trial attorney offered evidence and raised factual issues which triggered the agreement… .  People v Thompson, 2013 NY Slip Op 05473, 2nd Dept 7-24-13

 

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Padilla v Kentucky, Which Held Attorney’s Failure to Inform Client of Immigration Consequences of Plea Was Ineffective Assistance, Not Applied Retroactively Under New York Constitution

The Second Department determined Padilla v Kentucky, 559 US 356, which held an attorney’s failure to inform his or her client of the immigration consequences of a plea constituted ineffective assistance of counsel, should not be applied retroactively under the New York Constitution:

In People v Pepper (53 NY2d 213, cert denied sub nom. New York v Utter, 454 US 1162), the Court of Appeals addressed the issue of whether a new rule should be retroactively applied under the New York Constitution. It recognized three factors a court should weigh to determine whether to retroactively apply a new rule: (1) the purpose to be served by the new standard, (2) the extent to which law enforcement authorities relied upon the old standard, and (3) the effect a retroactive application of the new standard would have on the administration of justice (see id. at 220). The Court of Appeals explained that “the extent of the reliance and the nature of the burden on the administration of justice are of substantial significance only when the answer to the retroactivity question is not to be found in the purpose of the new rule itself” (id.). Thus, a new rule that goes “to the heart of a reliable determination of guilt or innocence” will be retroactively applied “where otherwise there could be a complete miscarriage of justice” (id. at 221). However, a new rule which is “only collateral to or relatively far removed from the fact-finding process at trial” (id.), will have only prospective application. Although the Supreme Court in Padilla held that the Sixth Amendment requires criminal defense counsel to inform their clients whether a guilty plea carries a risk of deportation, this new rule, rather than going to the heart of a reliable determination of guilt or innocence, instead concentrates on the defendant’s appreciation of the immigration consequences that may flow from an otherwise proper plea allocution … .

Retroactive application of Padilla is also not warranted under the second and third Pepper factors. With regard to law enforcement reliance, prior to Padilla, a defendant could prevail on an ineffective-assistance-of-counsel claim only if it was established that counsel rendered incorrect advice regarding the immigration consequences of the guilty plea and that the defendant was prejudiced thereby … . The failure to advise a defendant of the possibility of deportation did not constitute ineffective assistance of counsel …, and such failure to advise did not “affect the voluntariness of a plea of guilty or the validity of a conviction” (CPL 220.50[7]). Thus, under the old standard, prosecutors could recommend acceptance of plea allocutions even where the defendant had not been advised of the immigration consequences of entering into the plea …. As to the third factor, retroactive application of the Padilla rule would potentially lead to an influx of CPL 440.10 motions to vacate the convictions of defendants whose guilty pleas were properly entered and accepted by courts under the old standard …, thus adversely affecting the criminal justice system. Accordingly, we further find that under New York law, the Padilla rule should not be retroactively applied to cases like this one where the convictions became final prior to March 31, 2010, the date Padilla was decided.  People v Andrews, 2013 NY Slip Op 05469, 2nd Dept 7-24-13

 

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Family Offense of Disorderly Conduct Not Proven—No Proof of Public Inconvenience, Annoyance, or Alarm

In a full-fledged opinion by Justice Skelos, the Second Department determined the wife’s allegations against her husband did not demonstrate the family offense of disorderly conduct.  The wife alleged the husband tried to push her down stairs, twisted her arm and pushed her against a wall. Under the Penal Law, disorderly conduct requires an intent to cause or the reckless creation of a risk of causing public inconvenience, annoyance or alarm.  However, Family Court Act section 812 provides: “For purposes of this article, disorderly conduct included disorderly conduct not in a public place.”  The Second Department determined that, even in the context of a family offense proceeding, the “public inconvenience, annoyance or alarm” element must be proven:

We … hold that, even where the conduct at issue is alleged to have occurred in a private residence, in order for a petitioner to meet his or her burden of establishing the family offense of disorderly conduct, there must be a prima facie showing that the conduct was either intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance, or alarm. The intent to cause, or recklessness in causing, public harm, is the mens rea of the offense of disorderly conduct … . The plain language of the subject provision of Family Court Act § 812, in contrast, provides only that the conduct need not occur in a public place (see Family Ct Act § 812). The plain language of Family Court Act § 812 therefore pertains only to the actus reus of the offense—specifically, the place where it is committed—and does not speak to the mens rea of the offense. Indeed, since Family Court Act § 812 does not specify an alternative culpable mental state, if the mens rea provided for in the Penal Law were not applicable in family offense proceedings, it is unclear what the mens rea of this family offense would be. * * *

One can certainly contemplate conduct occurring in a private residence that is intended to cause, or evinces a reckless disregard of causing, public harm. Such conduct might include, for example, a loud fight, or a loud argument with disturbing content, occurring in an apartment building late at night, or under other circumstances where the public may reasonably be expected to hear or see the altercation. As the Court of Appeals has observed, “the risk of public disorder does not have to be realized,” in order to infer that an individual intended to cause, or recklessly disregarded the risk of causing, such a threat… . Matter of  Cassie v Cassie, 2013 NY Slip Op 05446, 2nd Dept 7-24-13

 

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40 Month Pre-Trial Delay Did Not Violate Due Process

In determining a 40-month delay did not deprive defendant his right to due process, the Fourth Department wrote:

In determining whether there has been an undue delay, a court must consider several factors, including “ ‘(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay’ ” (People v Decker, 13 NY3d 12, 15, quoting People v Taranovich, 37 NY2d 442, 445…).

Upon applying the Taranovich factors to the facts before us, we conclude that the delay did not deprive defendant of his right to due process.  We agree with defendant that the rape in the first degree charge “can only be described as serious” … .  Conversely, although the 40-month delay in commencing the prosecution was substantial, it was not per se unreasonable ….  Furthermore, defendant was not incarcerated for an extended period prior to the trial on these charges, and there is no evidence that defendant was prejudiced by the delay in commencing the prosecution.  Finally, the reason for the delay in this case was the police detective’s inability to fully identify and locate defendant.  That excuse was not unreasonable inasmuch as the victim was unable to identify defendant from mug shots or otherwise ascertain which of the 32 men in the Buffalo Police Department’s identification system with defendant’s name was the perpetrator. People v White, 817, 4th Dept 7-19-13

 

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Insufficient Evidence of History of Alcohol and Drug Abuse in SORA Proceeding

The Fourth Department determined there was insufficient evidence in a SORA proceeding to find defendant had a history of alcohol and drug abuse.  The case summary stated that “Probation identified [defendant’s] continued drug and alcohol abuse as problematic, and he refused to attend treatment for th[at] problem.”  The Court wrote:

There is …no evidence that defendant was ever screened for substance abuse issues …, “only very limited information about his alleged prior history of drug and alcohol abuse” …, and no information about what treatment was recommended or why treatment was recommended ….  Under these circumstances, the case summary alone is insufficient “to satisfy the People’s burden of establishing that risk factor by clear and convincing evidence” ….

Further, defendant’s prior convictions for criminal possession and sale of marihuana and criminal possession of a controlled substance in the seventh degree do not constitute clear and convincing evidence that defendant used drugs, let alone that he had a history of abusing them … .  During the presentence investigation, defendant never admitted to using drugs or alcohol, and he denied abusing any substances at the SORA hearing … Defendant’s admission that he was intoxicated during a previous incident, which led to a rape charge that was subsequently dismissed, is insufficient to establish that his sexual misconduct can “be characterized by repetitive and compulsive behavior[] associated with drugs or alcohol” (Correction Law § 168-l [5] [a] [ii]), especially because defendant does not have any other history of intoxication with respect to his sexual offenses, including the instant offenses ….  Consequently, as noted, the People failed to meet their burden of establishing by clear and convincing evidence that defendant had a history of alcohol or drug abuse… .  People v Coger, 815, 4th Dept 7-19-13

 

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