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Audiotaped Sworn Statement of Witness Admitted Because Defendant Caused Witness to Be Unavailable

After a Sirois hearing, the trial court found sufficient circumstantial evidence that the defendant had caused a witness’ unavailability and allowed in evidence (in the People’s case-in-chief) an audio recording of the witness.  In affirming, the Second Department wrote:

…[T]he Supreme Court properly admitted a sworn audiotaped statement from Timothy Dixon as evidence during the People’s case. A witness’s out-of-court statements may be admitted as part of the People’s direct case where the People “demonstrate by clear and convincing evidence that the defendant, by violence, threats or chicanery, caused [the] witness’s unavailability”…. “Recognizing the surreptitious nature of witness tampering and that a defendant engaging in such conduct will rarely do so openly, resorting instead to subterfuge, the court can rely on and the prosecution can use circumstantial evidence in making the requisite determination”…. People v Leggett, 2013 NY Slip OP 04028, 2nd Dept, 6-5-13

 

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Post-Offense “Bad Acts” Erroneously Admitted (Harmless Error)

The Second Department determined bad acts committed after the charged crime should not have been admitted, although the error was deemed harmless:

The Supreme Court …improvidently exercised its discretion in permitting the admission of evidence relating to two bad acts allegedly committed by the defendant subsequent to the charged crime, since the probative value of such evidence was minimal, and was outweighed by its prejudicial effect… . People v Addison, 2013 NY Slip Op 04015, 2nd Dept, 6-5-13

 

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Absence of Evidence of Physical Injury Precluded 15 Point Assessment for Violence in SORA Proceeding

The First Department determined the SORA court improperly assessed 15 points for violence because there was insufficient evidence of physical injury:

The court erred in assessing 15 points under the risk factor for use of violence, because the People did not meet their burden of establishing, by clear and convincing evidence, that defendant caused physical injury (see Penal Law 10.00[9]) to the victim. Although minor injuries may cause substantial pain, a showing of “more than slight or trivial pain” is required …. The People do not dispute defendant’s assertion that the photographs of the injuries depicted only “faint marks and superficial scratches.” Although evidence of medical treatment is unnecessary to establish physical injury …, here the victim’s bare statement that her knee “hurt” was insufficient to support the inference that she suffered substantial pain, given the absence of evidence that she even used ice or an over-the-counter pain reliever. Furthermore, the injury was not sustained as a result of a deliberate assault or other act supporting an inference that it caused substantial pain …. Therefore, the court should have assessed 10 points for forcible compulsion, but not 15 points. People v Quito, 2013 NY Slip Op 03938, 1st Dept, 6-4-13

 

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Defendant Handcuffed, Post-Arrest Search of Backpack Unlawful

In determining the search of defendant’s backpack was unlawful because there were no exigent circumstances to justify it, the First Department wrote:

The search of defendant’s backpack following his arrest was unlawful because he was handcuffed at the time of the search and it was no longer in his control…. The contents of the backpack, which included a pair of pliers and unused garbage bags, should have been suppressed because even where a container is not in the exclusive control of the police, exigency justifying its search incident to arrest is not established in the absence of “some reasonable basis for the belief that the contents of those containers might pose a danger to the arresting officers or when there is legitimate concern for the preservation of evidence which might reasonably be thought to reside within the containers”….  People v Diaz, 2013 NY Slip Op 03937, 1st Dept, 6-4-13

SUPPRESSION

 

No Need to Request Missing Witness Charge to Argue Absence of Witness to Jury

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined the trial court erred in ruling defense counsel could not argue to the jury that a witness should have been called by the People because defense counsel did not request a missing witness charge (the error was, however, deemed harmless).  The complainant’s statement did not mention an anal penetration which was the subject of trial evidence. When asked why the incident was not mentioned in the statement, the complainant said the police officer taking the statement told her no judge would believe that happened.  The officer did not testify.  The Court of Appeals wrote:

In his summation, defense counsel argued that this part of the complainant’s testimony was incredible. “We’ve changed as a society,” he argued. “No police officer is going to come up there and say, ‘Oh, no one is going to believe you, this was your boyfriend.’ That’s not where we are today.” That part of his argument drew no objection. But the prosecutor did object when counsel added: “And if that’s, in fact, what that police officer said, then where was he, where was that police officer on the stand to say: You know what, I didn’t write it down. I didn’t think she was telling me the truth. He didn’t testify to that.” The trial court sustained the objection and directed the jury to disregard counsel’s comment. Counsel tried again to make the missing witness argument, with the same result.

After summations, defendant moved for a mistrial on the basis of this ruling. The court denied the motion, saying that counsel should have asked for a missing witness instruction if he wanted to make a missing witness argument… .

The courts below clearly erred in holding that defense counsel’s missing witness argument was improper. The trial court’s theory, that a request for a missing witness instruction is a prerequisite to a missing witness argument is, as the Appellate Division recognized, flatly contrary to what we said in Williams (5 NY3d at 734). The Appellate Division affirmed on the alternative grounds that the officer’s testimony may have been cumulative and defendant failed to make an offer of proof. This approach may have been impermissible under People v LaFontaine (92 NY2d 470 [1998]) and People v Concepcion (17 NY3d 192 [2011]).

Just before making the missing witness argument, counsel had attacked as incredible the complainant’s uncorroborated testimony as to what the officer said to her; confirmation of that testimony from the officer would not have been cumulative ….. And counsel had no obligation to make an offer of proof as a predicate for a missing witness argument. It is a premise of such an argument, as it is of a missing witness instruction, that the witness is in the control of the party that failed to call him … A party making such an argument, like one requesting such an instruction, “can hardly know what [the] witness knows or what the witness would say if called” … .  People v Thomas, No 108, CtApp, 6-4-13

 

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Potential Versus Actual Conflict of Interest

In a full-fledged opinion by Judge Graffeo, the Court of Appeals affirmed defendant’s conviction, rejecting the defendant’s argument he had been denied effective assistance of counsel because of defense counsel’s conflict of interest.  The Court of Appeals described the difference between an actual conflict of interest (which mandates reversal if not waived) and a potential conflict of interest (at issue in this case):

The defendant bears the burden of establishing a denial of meaningful representation …. When such a claim is premised on a perceived conflict of interest, our precedent differentiates between actual and potential conflicts …. An actual conflict exists if an attorney simultaneously represents clients whose interests are opposed …and, in such situations, reversal is required if the defendant does not waive the actual conflict ….

In contrast, a potential conflict that is not waived by the accused requires reversal only if it “operates” on or “affects” the defense … — i.e., the nature of the attorney-client relationship or underlying circumstances bear a “‘substantial relation to the conduct of the defense'” …. The “requirement that a potential conflict have affected, or operated on, or borne a substantial relation to the conduct of the defense — three formulations of the same principle — is not a requirement that [the] defendant show specific prejudice” …. Nevertheless, it is the defendant’s “heavy burden” … to show that a potential conflict actually operated on the defense ….  People v Sanchez, No 107, CtApp, 6-4-13

 

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8-Hour Break in 49 ½ Hour Interrogation Did Not Render Confession Voluntary

In a full-fledged opinion by Chief Judge Lippman, the Court of Appeals determined an 8-hour break and the presence of counsel, after a 491/2-hour custodial interrogation, did not render his confession to murder voluntary and reversed his conviction:

We are unwilling to draw the inference, which the People would have us make, that the eight-hour “break” between interrogation and arraignment attenuated the taint of the wrongful interrogation. Defendant’s pre- and post-arraignment statements were, despite their temporal separation, in all other ways seamlessly linked. At the end of the marathon session, the utterly spent defendant, in exchange for a lawyer to which he was absolutely entitled, agreed in a statement ultimately suppressed as coerced, to “give everybody what they want,” and when he returned to the Blue Room on the morning of the same day and faced the same interrogator across the same table, that is exactly what he did. We do not accept the hypothesis that his intervening stay in a holding pen and arraignment on the charge of murder sufficed to transform his coerced capitulation into a voluntary disclosure. By the time of defendant’s post-arraignment statements, his options would have seemed so constricted, by what he had already divulged during the earlier portion of the interrogation, as to render the intervening temporal buffer practically irrelevant. …

…[W]e reject the contention that the entry of counsel guaranteed the voluntariness of defendant’s subsequent statements …. This contention misconstrues the statement in Miranda v Arizona (384 US 436 [1966]) that “[t]he presence of counsel, in all the cases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege [against self incrimination]. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion” (id. at 466 [emphasis supplied]). Plainly, this language, expressly limited in its reference, was not intended to stand for the proposition that the presence of counsel will invariably be adequate as an assurance of voluntariness.  People v Guilford, No 103, CtApp, 6-4-13

SUPPRESSION

 

 

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SORA Amendments Did Not Render Statute Punitive—Ex Post Facto Clause Not Applicable​

In a full-fledged opinion by Justice Andrias, the First Department determined the amendments to the Sex Offender Registration Act (SORA) did not render the statute punitive and thereby violate the Ex Post Facto Clause or violate the Double Jeopardy prohibition with respect to the defendant:

It may be true that subjecting sex offenders to lifetime registration and notification requirements, with their attendant obligations and restrictions, increases the difficulties and embarrassment a sex offender may endure, even where he has led a law-abiding life since his conviction. However, in assessing the constitutionality of a statute, this Court does not review the merits or wisdom of the Legislature’s decisions on matters of public policy …, and the fact that the restrictions are difficult and cumbersome is not enough to make them unconstitutional. Although “one can argue that such laws are too extreme or represent an over-reaction to the fear of sexual abuse of children, . . . they do not violate the ex post facto clause . . . . People v Parilla, 2013 NY Slip Op 03931, 1st Dept, 5-30-13

 

Failure to Get Court’s Permission to Represent to a Grand Jury Required Dismissal of Indictment​

The First Department determined that the prosecutor’s failure to get court permission to represent a case to a grand jury need not be preserved by objection and required dismissal of the indictment:

The failure to obtain court authorization to re-present the charges to a second grand jury implicates the power to prosecute…; thus, defendant was not required to alert the court to the authorization requirement of CPL 190.75(3), or otherwise object, in order to preserve the issue for appellate review. Where, as here, the prosecutor presented charges and the grand jury failed to vote to either dismiss them or indict the defendant, a situation arose “in which the court, and not the prosecutor, should have decided whether re-presentation to a second grand jury was appropriate”…. In the absence of court authorization, dismissal of the indictment is required …. People v Miller, 2013 NY Slip Op 03928, 1st Dept, 5-30-13

 

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“Exigent Circumstances” Exception to Search Warrant Requirement Applied

In finding the “exigent circumstances” exception to the search warrant requirement for entry into a private residence applied to the facts, the Third Department explained the criteria as follows:

The Court of Appeals has outlined three elements to determine whether exigent circumstances exist to justify entry without a warrant: “(1) The police must have reasonable grounds to believe that there is an emergency at hand  and an immediate  need  for their assistance for the protection of life or property. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched” … .  The United States Supreme Court has since eliminated the intent element for 4th Amendment purposes … .  People v Musto, 105008, 3rd Dept, 5-30-13

 

 

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