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Right of Confrontation Not Violated by Results of Tests by Persons Who Were Not Called as Witnesses

In determining defendant’s right to confrontation was not violated by evidence of DNA testing:

The court properly admitted files prepared by the New York City Medical Examiner’s Office containing DNA profiles derived from the testing of evidence recovered from the crime scenes, since the documents containing the DNA profiles, which were prepared prior to the defendant’s arrest, “did not, standing alone, link [him] to the crime” …. The testimony of the People’s expert witness established that she conducted the critical analysis at issue by comparing the DNA profiles derived from the crime scene evidence to the defendant’s DNA profile and concluding that all of the profiles matched…. Moreover, the DNA profile generated from the swab of the defendant’s cheek, standing alone, shed no light on the issue of the defendant’s guilt in the absence of the expert’s testimony that it matched the profiles derived from the crime scene evidence….  People v Washington, 2013 NY Slip Op 05096, 2nd Dept 7-3-13

TESTIMONIAL HEARSAY

 

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Evidence of Pornography Allowed as Molineux Evidence to Show Intent

In affirming the defendant’s conviction for sexual offenses against a young child, the Third Department determined the trial court properly allowed “Molineux” evidence about pornography found on and/or searched for on defendant’s computer. Among the reasons for letting the evidence of pornography in evidence was to demonstrate defendant’s intent.  The Third Department wrote:

While  intent can  often be inferred from the sexual act itself…, here, defendant claimed to the police investigator and the CPS caseworker that much  of the sexual contact and the child’s knowledge occurred accidentally. The foregoing  was,  thus, admissible  to  prove  that defendant’s  charged  sexual contact  was not accidental or mistaken but, rather, was intentional and sexual … and motivated by his unusual sexual interest in young children. Supreme Court carefully considered  the  prejudicial  effect  of  the  evidence, limited or excluded much  of it, including the actual images and videos, and provided numerous contemporaneous and appropriate limiting  instructions. We  cannot conclude that the court abused its discretion in finding that the  probative  value  of the admitted evidence outweighed the potential for undue prejudice… People v Sorrell, 103426, 3rd Dept 7-3-13

 

Jury Was Given Written Copies of Portions of Jury Instructions; Judge’s Responses to Subsequent Requests for Jury Instructions and Testimony Read-Back Required Reversal

The Third Department reversed defendant’s conviction on two grounds.  First, the trial judge’s response to the jury’s request for jury instructions (written copies of portions of the jury instructions had already been given to the jury) was not “meaningful” and required reversal in the absence of an objection.  And second, the read-back of testimony requested by the jury did not match the request and did not include crucial cross-examination:

As it was unclear from the jury’s note whether the jury simply was seeking the portion of the written charge previously promised by County Court or some other unidentified portion of the charge  (or even  the  charge  in its entirety), it was  incumbent upon County Court to explore this inquiry with the jury and clarify the  nature of the  jury’s request or, at the  very least, ascertain whether its response to the jury’s request was satisfactory….Although defense counsel did not object to the manner in which County Court  responded  to the  jury’s inquiry, County  Court  failed “to provide  a  meaningful response  to the  jury” and, in so  doing, failed to fulfill its “core responsibility” in this regard  ….    Accordingly, no objection was required to preserve this issue for appellate review… . * * *

Although CPL 310.30 affords a trial court a certain degree of latitude in responding to a jury request for additional information, the court’s response must be meaningful … . Additionally, “[a] request for a reading of testimony generally is presumed to include cross-examination which impeaches the testimony to be read back, and any such testimony should be read to the jury unless the jury indicates otherwise”… .  People v Clark, 105237, 3rd Dept 7-3-13

 

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Writ of Coram Nobis Granted—Ineffective Assistance of Appellate Counsel

The Second Department granted defendant’s writ of coram nobis to vacate (dismissing the indictment), on the ground of ineffective assistance of appellate counsel.  Among the grounds for appeal not raised were: repugnant verdicts, erroneous and missing jury charges (including the statutory elements), failure to give a limiting charge with respect to evidence of defendant’s prior criminal record, and prosecutorial misconduct.  People v Morales, 2013 NY Slip Op 05094, 2nd Dept 7-3-13

 

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Judge’s Mistrial Order Precluded Retrial—Double Jeopardy

In precluding a retrial on double jeopardy grounds after the trial judge ordered a mistrial over defendant’s objection (granting the Article 78 prohibition petition), the Second Department explained the relevant criteria:

In a jury trial, once the jury is empaneled and sworn, jeopardy attaches (see CPL 40.30[1][b];..), and the defendant has a “valued right to have his [or her] trial completed by a particular tribunal” ….  ” [W]hen a mistrial is granted over the defendant’s objection or without the defendant’s consent, double jeopardy will, as a general rule, bar retrial'”…. “However, the right to have one’s case decided by the first empaneled jury is not absolute, and a mistrial granted as the product of manifest necessity will not bar a retrial”… .”Manifest necessity” means “a high degree of necessity”; “the reasons underlying the grant of a mistrial must be necessitous, actual and substantial” …. ” Even if the reasons for granting a mistrial are deemed actual and substantial, the court must explore all appropriate alternatives prior to granting a mistrial'”…. Mistrials premised on the prejudicial effect of improper evidence or argument are entitled to “great deference” …, since “the Trial Judge, better than any other, . . . can detect the ambience of partiality”…. Nonetheless, the trial judge must “temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his [or her] confrontation with society through the verdict of a tribunal he [or she] might believe to be favorably disposed to his [or her] fate” … . Matter of Taylor v Dowling, 2013 NY Slip Op 05089, 2nd Dept 7-3-13

 

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Prima Facie Case of Family Offenses Not Established (Forcible Touching and Sexual Abuse)

The Second Department found that Family Court properly determined mother failed to establish a prima facie case of the family offense of forcible touching and sexual abuse and properly ruled hearsay inadmissible:

The mother presented no direct evidence that the father touched the child “for the purpose of degrading or abusing” the child or “gratifying [his] sexual desire” (Penal Law § 130.52; see Penal Law §§ 130.00[3]; 130.55;…. Furthermore, although, in some instances, the element of intent may be inferred from the nature of the acts committed and the circumstances in which they occurred…, an intent to gratify sexual desire on the part of the father cannot be inferred from the totality of the circumstances here…. * * *

Contrary to the mother’s contention, the Family Court properly refused to permit her to admit hearsay testimony pursuant to Family Court Act § 1046(a)(vi). That section, by its own terms, is limited to a “hearing under . . . article [10] and article ten-A” of the Family Court Act (Family Ct Act § 1046[a]), and although the hearsay exception contained in Family Court Act § 1046(a)(vi) has been applied in the context of custody proceedings commenced pursuant to Family Ct Act article 6 where the basis of the custody proceeding is founded on neglect or abuse such that the issues are “inextricably interwoven”…, the Family Court properly refused to apply Family Court Act § 1046(a)(vi) in this case…. Matter of Khan-Soleil v Rashad, 2014 NY Slip Op 05074, 2nd Dept 7-3-13

 

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Elements of Tampering with Physical Evidence

The First Department explained the elements of the offense of tampering with physical evidence as follows:

…[A] person is guilty of the completed crime of tampering with physical evidence when, “[b]elieving that certain physical evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent such production or use, he suppresses it by any act of concealment” (Penal Law 215.45[2]).

The offense of tampering does not require the actual suppression of physical evidence, but only that a defendant perform an act of concealment while intending to suppress the evidence…. Regardless of whether the defendant is successful in suppressing the evidence, once an act of concealment is completed with the requisite mens rea, the offense of tampering has been committed.  People v Eaglesgrave, 2013 NY Slip Op 05001, 1st Dept 7-2-13

 

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Detention and Frisk of Juvenile Supported by Reasonable Suspicion

The First Department determined the following scenario provided reasonable suspicion sufficient to justify the detention and frisk of the juvenile:

A police officer testified that she was investigating an unruly crowd when she observed appellant walking towards her with his arm under his shirt, clutching an object held at his waist. Based on the rigidity of his body and how tightly he held the object, she believed it to be a weapon. As he passed by, she heard him say that he was “going to get him.” When she approached with her shield visible around her neck, appellant moved towards her, whereupon she grabbed his hand and felt the handle of a knife. During a brief struggle, the knife fell to the ground. Appellant was placed under arrest and the knife, which had a six-inch blade, was recovered.  Matter of Daquan B, 2013 NY Slip Op 04974 1st Dept 7-2-13

 

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Defendant Should Have Been Adjudicated a Youthful Offender; Waiver of Appeal Not Valid

The Fourth Department determined the defendant’s waiver of appeal was invalid and County Court should have adjudicated the defendant a youthful offender (re: criminal possession of a weapon):

…[T]he waiver of the right to appeal is invalid because “the minimal inquiry made by County Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice”… .

A defendant between the ages of 16 and 19 who, like defendant herein, “has been convicted of an armed felony offense . . . is an eligible youth if the court determines that . . . [there are] mitigating circumstances that bear directly upon the manner in which the crime was committed” (CPL 720.10 [3] [i]), and we conclude that such is the case here. The record reflects that defendant was the victim of a brutal attack by multiple perpetrators the day prior to the armed felony offense at issue herein. … Defendant told the police that he had fired a single shot into the porch of his attackers’ house “to send a message to them to stop messing with him as he was a serious threat if need be.” According to defendant, he knew that his attackers would not be home and, indeed, the record reflects that the residence was unoccupied at the time of the shooting.  People v Amir W, 759, 4th Dept 6-28-13

 

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THE SEARCH WARRANT APPLICATION AND SUPPORTING AFFIDAVIT DID NOT DEMONSTRATE THE RELIABILITY OF THE CONFIDENTIAL INFORMANT, MATTER SENT BACK FOR REVIEW OF THE TRANSCRIPT OF THE CONFIDENTIAL INFORMANT’S STATEMENT MADE BEFORE THE ISSUING MAGISTRATE (CT APP)

The Court of Appeals, over a dissent, determined the motion court should have looked at the transcript of the confidential informant’s statements before the magistrate before ruling on whether the search warrant was supported by probable cause. The application and affidavit did not demonstrate the reliability of the informant:

… Supreme Court erred by failing to examine the transcript of the confidential informant’s testimony before the magistrate to determine whether the search warrant was issued upon probable cause and that the formal requirements of CPL 690.40 (1) had been substantially complied with … . …

The search warrant and supporting affidavit do not by themselves establish probable cause in this case … . A warrant application containing information provided by a confidential informant must demonstrate “the veracity or reliability of the source of the information” … . There are no “factual averments” in the police officer’s affidavit that could have afforded the magistrate a basis for determining the reliability of the confidential informant … . The affidavit does not state that the informant had a proven “track record” of supplying reliable information in the past … , and it is not evident that the informant was under oath when information was given to the officer … .

Nor may the reliability of the confidential informant be inferred solely from the statement, set forth in the affidavit, that the informant bought cocaine from defendant. While admissions against penal interest may be sufficient to support a finding of probable cause … , “[s]uch admissions are not guarantees of truthfulness and they should be accepted only after careful consideration of all the relevant circumstances of the case indicates that there exists a basis for finding reliability” … . People v Chisholm, 2013 NY Slip Op 04841 [21 NY3d 990], CtApp 6-27-13

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