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Plea Colloquy Deficient Re: Depraved Indifference State of Mind

The Fourth Department reversed defendant’s conviction because the plea colloquy cast doubt on whether the defendant had the requisite “depraved indifference” state of mind:

Defendant’s contention that his plea was not knowing and voluntary survives his waiver of the right to appeal … . Preservation of the contention is not required inasmuch as defendant correctly contends that his statements during the plea colloquy cast significant doubt upon his guilt….Defendant stated that he struggled with his wife for control of the knife and that he acted recklessly when he stabbed her, and thus his statements suggest that he did not act with the requisite “depraved indifference state of mind”… . Indeed, it is well established that a “one-on-one . . . knifing . . . can almost never qualify as depraved indifference murder”…. We therefore conclude that County Court erred by accepting the plea without further inquiry … .  People v Robinson, 688, 4th Dept, 6-14-13

 

Naming Different Victim Rendered Superior Court Information Jurisdictionally Defective

The Fourth Department reversed the defendant’s conviction (by guilty plea) because the superior court information (SCI) was jurisdictionally defective.  The SCI and the felony complaint named different victims:

We note that defendant’s contention that the SCI is jurisdictionally defective does not require preservation, and that contention survives defendant’s valid waiver of the right to appeal….“[T]he designation of a[n individual] in the [SCI] different from the [individual] named in the felony complaint renders the crime contained in the information a different crime entirely”…. Thus, defendant was not held for action of a grand jury on the charge in the SCI inasmuch as “it was not an offense charged in the felony complaint or a lesser-included offense of an offense charged in the felony complaint”… .   People v Stevenson, 648, 4th Dept, 6-14-13

 

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Statement Not Tainted by Unwarned Statement Made an Hour Before; Failure to Inform Defendant of Post Release Supervision Did Not Require Reversal

The Fourth Department determined County Court properly denied a motion to suppress a statement, finding that the statement was not tainted by an unwarned statement made an hour earlier.  In addition, over a two-justice dissent, the Fourth Department held that the failure to explain the five-year post release supervision (PRS) portion of the sentence when the plea was taken did not require reversal, in part because the error was not preserved:

Although defendant made an inculpatory statement after she was placed in a patrol vehicle and additional inculpatory statements after she was transported to the police station, the court granted suppression of the statement made in the patrol vehicle on the ground that her detention constituted an arrest for which the police officer lacked probable cause. The court refused, however, to suppress the subsequent statements at the police station based on its determination that they were “attenuated from the unlawful arrest.” We agree with the People that the record supports the court’s determination .. . Although there was a period of only one hour between the time of the illegal arrest and the time of defendant’s statements at the police station …, we note that defendant was given Miranda warnings before the stationhouse interview … Moreover, the victim’s identification of defendant as the perpetrator constitutes a significant intervening event … inasmuch as that identification provided the police with probable cause for defendant’s arrest…  Lastly, there was no flagrant misconduct or bad faith on the part of the police officer who took defendant into custody … . * * *

In this case the prosecutor informed the court,“ ‘before the imposition of sentence’ ” (…see generally CPL 220.60 [3]), that he could not recall whether PRS had been discussed at the time of the plea. The prosecutor noted that they “should probably make a record of that . . . so it is clear.” At that point, the court informed defendant that it “intend[ed] to make a five year period of [PRS].” Defendant was then asked if she had a chance to talk about that with her attorney, and defendant answered, “[y]es.” Defendant was also asked if she understood that the PRS was a “part of [her] plea” and that she would be on parole supervision for five years at the end of her prison sentence. Defendant answered, “[c]orrect.”  When asked if she “still wish[ed] to go through with sentencing today,” defendant again answered, “[y]es.” In our view, the record is clear that “defendant could have sought relief from the sentencing court in advance of the sentence’s imposition…”… .  People v Turner, 529, 4th Dept, 6-14-13

 

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Objection to Molineux Evidence Not Preserved for Appeal

The Fourth Department noted that failure to request a limiting instruction with respect to Molineux evidence and the failure to object to the court’s failure to provide a limiting instruction rendered the issue unpreserved for appeal.  The Molineux evidence in this sexual abuse case was evidence of the physical (not sexual) abuse of the victim’s brother:

On appeal from a judgment convicting him following a jury trial of course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [a]) and endangering the welfare of a child (§ 260.10 [1]), defendant contends that he is entitled to a new trial because Supreme Court neglected to give limiting instructions with respect to Molineux evidence establishing that he had subjected the victim’s brother to physical abuse (see People v Molineux, 168 NY 264). As defendant correctly concedes, that contention is unpreserved for our review because his attorney did not request a limiting instruction and failed to object to the court’s failure to provide one (see CPL 470.05 [2]…).    Because the Molineux evidence in question did not relate to prior sexual abuse, and because it appears from the record that defense counsel knew of the court’s failure to give limiting instructions and yet remained silent when the error could have been corrected, we decline to exercise our power to review that contention as a matter of discretion in the interest of justice … . People v Willians, 392, 4th Dept, 6-14-13

 

Trial Court’s Questioning Jury Whether It Had Reached a Verdict on Any Counts and Its Acceptance of a Partial Verdict Okay

The First Department determined the trial court, after several days of deliberation, properly questioned the jury whether it had reached a verdict on any of the counts and properly accepted a partial verdict:

The court, which was aware of the travel plans and upcoming religious observance of some of the jurors, properly exercised its discretion when it inquired whether the jury, which had been deliberating for several days, had agreed upon a verdict as to any of the counts submitted, and then accepted a partial verdict…. In accordance with CPL 310.70(1)(b), the court properly instructed the jury to resume deliberations on the remaining counts. The court’s actions did not coerce a verdict as to any counts…, and defendant has not shown how he was prejudiced by any of these actions.  People v Campbell, 2013 NY Slip Op 04418, 1st Dept, 6-13-13

 

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People’s Expert Was Not Qualified to Testify About “Reverse Extrapolation” in DWI Prosecution/”Reverse Extrapolation” Is an Accepted Theory However

In this DWI prosecution, the Third Department determined the People’s expert was not qualified to offer testimony about “reverse extrapolation,” but that the theory itself was sound:

[We reject defendant’s generalized challenge to] the  theory  of  reverse extrapolation – the process by which an expert, taking into consideration, among other  things, an individual’s known  BAC at a particular point  in time, renders  an  opinion  as  to  the  individual’s BAC at an earlier point in time. Assuming the expert in question is qualified and a proper foundation has been laid for such opinion, reverse extrapolation testimony may be….  Here, however, the People failed to lay a proper factual foundation for [the expert’s] testimony and, therefore, defendant’s objection in this regard should have been sustained.  People v Menegan, 105337, 3rd Dept, 6-13-13

 

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Witness’ Offering Testimony About a “Jailhouse Confession” in Unrelated Case May Constitute Brady Material

In affirming the defendant’s conviction, the Third Department determined a witness’ [Henry’s] agreement to testify about a “jailhouse confession” in an unrelated case may have constituted Brady material in defendant’s case because she also entered an agreement to testify about defendant’s “jailhouse confession.”  The Court determined reversal was not required because the potential Brady error was harmless under the facts:

“….[A]ssuming, without deciding, that the full terms of Henry’s cooperation agreement – including those aspects pertaining to the other matter – were Brady material subject to disclosure, reversal is not required.   Where, as here, nondisclosure follows the defense’s specific request for materials, evidence is deemed material and reversal is required only “if there is a ‘reasonable possibility’ that, had that material been disclosed, the result would have been different”… . People v Johnson, 104919, 3rd Dept, 6-13-13

 

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Submission of Intentional and Depraved Indifference Murder to Jury in Conjunctive Rather than Alternative Okay

The Second Department determined the trial court did not err when it submitted intentional murder and depraved indifference murder to the jury in the conjunctive, rather than the alternative, because more than one potential victim was present:

The defendant, relying on People v Molina (79 AD3d 1371), contends that the submission of the counts of intentional murder (and attempted murder) and depraved indifference murder to the jury in the conjunctive, rather than in the alternative, violated his right to due process. However, the defendant’s contention is without merit. “Where, as here, more than one potential victim was present at the shooting, a defendant may be convicted of both counts because he or she may have possessed different states of mind with regard to different potential victims”…. To the extent that the Appellate Division, [3rd] Department, held differently in Molina, we disagree and decline to follow that holding. People v Dubarry, 2013 NY Slip Op 04354, 2nd Dept, 6-12-13

 

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Doctrine of Collateral Estoppel Re: Related Criminal Convictions Properly Applied

The Second Department determined Family Court properly applied the doctrine of collateral estoppel in an abuse proceeding based upon father’s criminal convictions:

The Family Court properly granted that branch of the motion of the ACS which was for summary judgment on the issue of the father’s derivative abuse. The ACS met its prima facie burden of showing that the doctrine of collateral estoppel is applicable…. “A determination in a criminal action may be given collateral estoppel effect in a Family Court proceeding where the identical issue has been resolved, and the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct”…. The father’s convictions of course of sexual conduct against a child in the first degree, course of sexual conduct against a child in the second degree, rape in the second degree, and endangering the welfare of a child were based upon the same acts alleged to constitute sexual abuse as set forth in Family Court Act article 10 petitions (see Family Ct Act § 1012[e][iii]).  Matter of Angelica M, 2013 NY Slip Op 04339, 2nd Dept, 6-12-13

 

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Proper Procedures for Handling Pro Se Motions to Withdraw Guilty Pleas (Alleging Coercion by Defense Counsel) Explained

The Court of Appeals considered two cases in which, after pleading guilty, the defendant made a pro se motion to withdraw the plea, claiming coercion and undue pressure by defense counsel. In both cases the sentencing judge asked for the defense attorney’s position on the pro se motion, which forced both attorneys to take a position adverse to the client’s, which, in turn, required the assignment of new counsel.  The Court explained how the situation should be handled:

…[W]hen a motion to withdraw a plea is patently insufficient on its face, a court may simply deny the motion without making any inquiry. When certain actions or inaction on the part of defense counsel are challenged on the motion, it may very well be necessary for defense counsel to address the matter when asked to by the court. When doing so, defense counsel should be afforded the opportunity to explain his performance with respect to the plea …, but may not take a position on the motion that is adverse to the defendant …. At that point, a conflict of interest arises, and the court must assign a new attorney to represent the defendant on the motion. People v  Mitchell …, Nos 116, 117, CtApp, 6-11-13

 

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