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Superior Court Information Not Jurisdictionally Defective Because Different Victims Named

In reversing the Appellate Division, the Court of Appeals determined a Superior Court Information (SCI) was not jurisdictionally defective because it named victims not identified in the felony complaint.  The defendant-respondent was charged with grand larceny based on his use of two persons’ identities to procure mortgages to purchase two properties.  Those “identity theft” victims were named in the felony complaint. The victims named in the SCI, however, were the two banks which issued the mortgages. The Appellate Division held the SCI was jurisdictionally defective because it didn’t name the same victims as the felony complaint. The Court of Appeals, in an opinion by Judge Lippman, held the defect was not jurisdictional because it was clear the felony complaint and SCI charged the same offenses:

Here, the offense to which defendant pleaded guilty is the same offense for which he was charged in the felony complaint, and adding the names of the victims in the SCI did not render the offense a different one. Though the felony complaint did not name the banks that provided the loans, the complaint identified the specific properties in Queens and Brooklyn on which defendant took out mortgages in Hector Sandoval’s name. … There was nothing inappropriate about adding the names of the victims as it did not change the offense alleged. … [T]here was no factual discrepancy between the felony complaint and the second SCI; the crimes were simply portrayed from a different perspective.  People v Milton, No 75, CtApp, 5-7-13

 

Pre-Deliberations Note from Juror Did Not Raise Question Whether Juror Was “Grossly Unqualified;” No Hearing Necessary

The Court of Appeals, over a substantial dissent by Judge Lippman, determined that a note from a juror to the judge, prior to deliberations, did not raise the question whether the juror was “grossly unqualified” and therefore did not trigger the need for an in camera interview of the juror pursuant to People v Buford, 69 NY2d 290.  The note used the term “we” and raised the inference the jurors were engaging in premature deliberations about the need for additional evidence.  The Court of Appeals wrote:

Our intention in Buford was to create a framework by which trial courts could evaluate sworn jurors who, for some reason during the trial, may “‘possess[] a state of mind which would prevent the rendering of an impartial verdict'” …. Such scenarios include, but are not limited to, a juror’s bias against a particular race …, a juror’s intimate relationship with a prosecution witness …, or a juror’s conversation with a member of the defendant’s family seeking information about the defendant’s background ….

Here, there is no indication from the note’s use of the word “we” that the note-writing juror’s impartiality was in doubt or that the juror had committed any misconduct. The note’s contents were indicative of two possibilities: that there had been premature deliberations and/or the jury was requesting additional evidence after the parties had rested and the evidence had closed. …People v Mejias and Rodriguez, Nos 67, 68, CtApp 5-7-13

 

 

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Daily Incidents of Molestation, Spanning Years, Constituted “Separate Occurrences” Triggering a Deductible for Each Policy-Period

The main issue in this case was whether nearly daily incidents of sexual molestation of a minor by a priest in the Roman Catholic Diocese of Brooklyn, spanning six years, should be considered a single “occurrence” or separate “occurrences” within the meaning of the relevant insurance policies.  If considered separate occurrences, then the deductible for each policy-period in which each occurrence was deemed to have taken place would apply. If considered a single occurrence, then only one deductible would apply for all the policy-periods.  The Court of Appeals, in an opinion by Judge Rivera, determined the on-going sexual molestation should be considered separate occurrences for each policy-period, triggering multiple deductibles.  The Court of Appeals also found that the raising of the “separate occurrences” argument by the insurance company was not a disclaimer and therefore was not subject to the timeliness requirement for disclaimers in the Insurance Law. There was a concurring opinion by Judge Smith and a “concurring in part and dissenting in part” opinion by Judge Graffeo. Roman Catholic Diocese of Brooklyn v National Union Fire Insurance Company …, No 69, CtApp 5-7-13

 

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Motion to Set Aside Convictions Based On Newly Discovered Evidence Should Have Been Granted

The Fourth Department determined the trial court should have set aside defendant’s criminal contempt convictions pursuant to Criminal Procedure Law 330.30(3) based upon newly discovered evidence (phone records calling into question complainant’s trial testimony).  The Fourth Department wrote:

To set aside a verdict pursuant to CPL 330.30 (3), a defendant must prove that “there is newly discovered evidence (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and, (6) which does not merely impeach or contradict the record evidence”….  People v Madison, KA 11-00313, 389, 4th Dept, 5-3-13

 

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Suppression Ruling Reversed—Pat Down Search Justified for Officer Safety​

Over two dissents, the Fourth Department reversed the grant of suppression by County Court.  The questioning of the defendant was instigated by the defendant’s staring at the officer as the officer was in his vehicle and the defendant was riding a bicycle.  The defendant ran his bicycle into a porch, fell and ran up the steps. At that point the officer approached him and asked him for identification.  The defendant kept putting his hand in his pocket after the officer asked him not to. The officer grabbed the defendant’s hand as defendant reached into his pocket.  As he did so, the officer touched an object he believed to be a handgun and he reached into the pocket and removed it.  The majority felt the officer was justified in grabbing the defendant’s hand and retrieving the object to protect his safety.  The dissenters felt the information available to the officer did not amount to reasonable suspicion of criminality such that a forcible stop and frisk was justified. People v Sims, KA 12-01247, 324, 4th Dept, 5-3-13

SUPPRESS, SEARCH, STREET STOP

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Trial Court’s Refusal to Allow Defense Witness to Be Called Required Reversal 

The Fourth Department (over two dissents) reversed defendant’s conviction and ordered a new trial because the defense was precluded from calling a witness.  The prosecution’s theory was that the defendant committed robbery, assault and burglary against the victim in retaliation for the victim’s informing the police defendant was growing marijuana in his house. It was anticipated the witness the defense was not allowed to call would testify that defendant accused him (the witness) of being the informant but did not assault or threaten him.  The Fourth Department explained:

It is well settled that “a defendant’s ‘right to present his own witnesses to establish a defense . . . is a fundamental element of due process of law’ ” …In fact, “[f]ew rights are more fundamental than that of an accused to present witnesses in his [or her] own defense” …Thus, the testimony of a defense witness should not be prospectively excluded unless the offer of such proof is palpably in bad faith …. Instead, courts upon proper objection should “rule on the admissibility of the evidence offered” …. Here, the People do not suggest that the testimony of the proposed witness was offered in bad faith, and the court did not make such a finding at trial. Indeed, there is no basis in the record for concluding that the offer of proof was palpably in bad faith. The court therefore should have allowed the proposed witness to testify, whereupon the prosecutor could object to any testimony she deemed inadmissible or improper.  People v Arena, KA 12-01632, 179, 4th Dept, 5-3-13

RIGHT TO PRESENT A DEFENSE

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State Court Did Not Have Subject Matter Jurisdiction Over “Dangerous Sex Offender” Civil Management Proceeding Because Defendant Would Not Be Released Upon Finishing State Sentence—Defendant Had 19 Years to Go on Federal Sentence

As a sex offender (respondent) neared the end of his state sentence, the state (petitioner) sought a proceeding under article 10 of the Mental Hygiene Law alleging the respondent was a dangerous sex offender requiring civil management.  However, the respondent was also serving a federal sentence and would not be released for another 19 years.  For that reason, the Fourth Department determined the court did not have subject matter jurisdiction over the Mental Hygiene Law proceeding:

It is well settled that a court is without subject matter jurisdiction “when it lacks the competence to adjudicate a particular kind of controversy in the first place. As the Court of Appeals has observed, ‘[t]he question of subject matter jurisdiction is a question of judicial power: whether the court has the power, conferred by the Constitution or statute, to entertain the case before it’ ”….Moreover, subject matter jurisdiction requires that the matter before the court is ripe …. In other words, courts “may not issue judicial decisions that can have no immediate effect and may never resolve anything,” and thus “an action may not be maintained if the issue presented for adjudication involves a future event beyond control of the parties which may never occur” ….It is axiomatic that an article 10 determination issued in 2013 would have no immediate effect on a sex offender who is not to be released from federal prison until 19 to 22 years later, especially considering the well-accepted principle that a sex offender, who is at one point determined to be dangerous, may subsequently be found to no longer be dangerous—a principle recognized by article 10’s allowance for annual reviews …. Matter of State v Calhoun, CA 11-02578, 314, 4th Dept, 5-3-13

 

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Statements Made by Defendant During First 15 Hours of a 60-Hour Interrogation Not Coerced

The Fourth Department determined the trial court properly ruled that the defendant’s statements during the first 15 hours of a 60-hour interrogation need not be suppressed as the product of coercion.  People v Collins, KA 09-00932, 1367, 4th Dept, 5-3-13

SUPPRESS, SUPPRESSION

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Suppression Should Have Been Granted—People Failed to Meet Their Burden of Going Forward at Suppression Hearing​

The Fourth Department ruled that suppression of tangible evidence and statements should have been granted because the People failed to meet their burden of going forward at the suppression hearing by demonstrating the legality of the police conduct.  The Fourth Department further determined that the error was not harmless with respect to all but one of the charges:

We agree with defendant, however, that County Court erred in denying that part of his omnibus motion seeking suppression of the physical evidence that was seized from his vehicle and the statements he made to New York State Police Investigators, inasmuch as the People failed to meet their “burden of going forward to show the legality of the police conduct in the first instance” … . * * *
Because the People failed to present evidence at the suppression hearing establishing the legality of the police conduct, defendant’s purported consent to the search of his vehicle was involuntary and all evidence seized from the vehicle as a result of that consent should have been suppressed … .Additionally, defendant’s statements to the police must be suppressed as fruit of the poisonous tree.. .  People v Purdy, KA 12-00534, 488, 4th Dept, 5-3-13

 

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Criteria for Specific Performance of Plea Agreement Explained

The Fourth Department noted the criteria for a defendant’s right to specific performance of a plea agreement (criteria not met in this case):
“ ‘The remedy of specific performance in the context of plea agreements applies where a defendant has been placed in a no-return position in reliance on the plea agreement . . . , such that specific performance is warranted as a matter of essential fairness’ ” … Inasmuch as neither the prosecution nor the defense had taken any action on the second plea agreement …defendant was not placed in a “ ‘no-return position’ ” in reliance on the second plea agreement and is thus not entitled to specific performance of that agreement… . People v Weather, KA 11-01247, 482, 4th Dept, 5-3-13

 

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