The Court of Appeals, in an opinion by Judge Pigott, held that an “Alford” plea entered in a criminal proceeding, in which there was no factual colloquy about the underlying offenses, should not be given a preclusive effect in a subsequent Worker’s Compensation proceeding related to the same facts. The opinion includes a discussion of the criteria for and appropriate use of an “Alford” plea (in which guilt is not admitted). In the Matter of Howard v Statute Electric, Inc., No. 29, CtApp 3-21-13
The Court of Appeals ruled that when re-sentencing under the Drug Law Reform Act of 2009 (DLRA–Criminal Procedure Law 440.46), the sentencing court can not alter multiple drug felony convictions originally imposed consecutively so that they run concurrently. When the court imposes a determinate sentence under the DLRA “[s]uch resentencing constitutes ‘alteration of the existing sentence as authorized by law’ …, rather than imposition of a new sentence or of an additional term of imprisonment” [see Criminal Procedure Law 70.25]. Therefore the re-sentencing court does not have the power to issue concurrent sentences when the original sentences were consecutive. People v Norris, No. 39, CtApp 3-21-13
In an opinion by Judge Graffeo, in addressing the appellant’s claim of ineffective assistance of counsel, the strategic reasons for not requesting that the jury be charged with lesser included offenses and for not requesting a severance when culpability is arguably unequal were discussed. In addition, the Court of Appeals addressed the level of corroborative evidence needed to allow into evidence an admission/confession made by the defendant (Criminal Procedure Law 60.50). The judgment of conviction was affirmed People v McGee, No. 30, CtApp 3-21-13
The Third Department noted that the factual sufficiency of an indictment is a non-jurisdictional defect which does not survive a guilty plea. People v Cruz, 104251, 3rd Dept. 3-21-13
The Second Department determined the conviction for “criminal sexual act in the first degree” was against the weight of the evidence because the relevant testimony, although credible, did not prove all the elements of the crime beyond a reasonable doubt:
The defendant correctly contends that his conviction of criminal sexual act in the first degree is against the weight of the evidence. In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] …, we essentially sit as the “thirteenth juror” and “decide[ ] which facts were proven at trial” … . Here, we take no issue with the credibility of the People’s witnesses, or the jury’s decision to credit the complainant’s version of events over that of the defendant. However, weight of the evidence review is not limited to issues of credibility … . Rather, “in conducting its weight of the evidence review, a court must consider the elements of the crime, for even if the prosecution’s witnesses were credible their testimony must prove the elements of the crime beyond a reasonable doubt” … . People v Ross, 2013 NY Slip Op 01860, 2009-00582, Ind No 11304/07, 2nd Dept. 3-20-13
In reversing the conviction, the Second Department determined that the acquittal on a rape count rendered the conviction on a related “endangering the welfare of a child” count “against the weight of the evidence.” The Second Department also ruled that questions posed by defense counsel did not “open the door” to questioning by the prosecutor about prior “bad acts” which the trial court had ruled off limits in a Sandoval hearing. The Second Department further ruled that an exception to the “rape shield law” was applicable and evidence the complainant had sex with defendant’s brother should have been admitted because it was relevant to a defense-theory alleging the brother had committed acts with which the defendant was charged. In ordering a new trial on one of the counts, the Second Department found that “the cumulative effect of certain trial errors deprived defendant of a fair trial…”. In discussing the Sandoval error, the Second Department wrote:
The purpose of a Sandoval hearing is to provide the defendant with “definitive advance knowledge of the scope of cross-examination as to prior conduct to which he will be subjected,” so that the defendant can decide whether to take the witness stand … . In the interest of fairness, a trial court’s authority to change its Sandoval ruling is limited once the defendant has decided to testify in good faith reliance on that ruling … . “When a defendant testifies to facts that are in conflict with the precluded evidence, he opens the door on the issue in question, and he is properly subject to impeachment by the prosecution’s use of the otherwise precluded evidence” … .
With respect to the rape shield law, the Second Department wrote:
A woman’s character or reputation for chastity is irrelevant to a charge that she was sexually abused … . Thus, the Rape Shield Law, codified in CPL 60.42, provides that “[e]vidence of a victim’s sexual conduct shall not be admissible in a prosecution for an offense or an attempt to commit an offense defined in article one hundred thirty of the penal law [i.e., sex offenses].” CPL 60.42 also provides five statutory exceptions. The first four exceptions allow the admission into evidence of a complainant’s prior sexual conduct in narrowly defined factual circumstances, which are inapplicable here … . The fifth exception, however, “vest[s] discretion in the trial court” … . Pursuant to CPL 60.42(5), evidence of a victim’s prior sexual conduct may be introduced upon a determination by the court that such evidence is “relevant and admissible in the interests of justice” (CPL 60.42[5]…). The Court of Appeals has recognized that, “in the interests of justice,” evidence of a complainant’s sexual conduct may be admissible if it is relevant to a defense … . In contrast, such evidence must be precluded if it does not tend to establish a defense to the crime, and will only harass the victim and possibly confuse the jurors … . People v Fisher, 2013 NY Slip Op 01847, 2011-06453, Ind No 3421/09, 2nd Dept. 3-20-13
In reversing the conviction, the Second Department determined two juror challenges for cause should have been granted because the jurors indicated they would tend to give added weight to the testimony of police officers and the court did not seek unequivocal assurances the jurors could set aside their bias. Defendant’s co-defendant’s judgment of conviction was reversed for the same reasons.
[The following quotation is from the decision reversing the co-defendant’s, Bernard Brothers’, judgment of conviction:
…[T]he County Court erred in denying the defendant’s challenges for cause with respect to two prospective jurors. One of the prospective jurors was a volunteer for the Police Athletic League who knew many police officers, including those assigned to the precinct in which the crime occurred. While he initially stated, “I think I could keep an open mind,” and he did not “think” that the fact that police officers from the precinct would testify at the trial would affect his ability to sit fairly on the case, he subsequently agreed that he “might” give police testimony a “leg up,” and accord such testimony “a little built in credibility.” Another prospective juror indicated that he would be inclined to accept the testimony of police officers as truthful unless there was a “reason that’s brought up that would make me think otherwise,” that he would have to have “a sense of inconsistency” with respect to the testimony of police officers, and that “unless there is a reason why they would lie or not tell the truth,” he would accept the testimony of police officers. It is undisputed that, after the County Court denied the challenges for cause to these two prospective jurors, the defendant exercised peremptory challenges and subsequently exhausted all of his peremptory challenges.
The two prospective jurors had “a state of mind that [was] likely to preclude [them] from rendering an impartial verdict” (CPL 270.20 [1] [b]), and they did not provide to the County Court “an unequivocal assurance” that they could “set aside any bias and render an impartial verdict based on the evidence” … . Accordingly, the County Court should have granted the challenges for cause with respect to these two prospective jurors, and the matter must be remitted to the County Court, Suffolk County, for a new trial. People v Brothers, 95 AD3d 1227]
People v Buggsward, 2013 NY Slip Op 01843, Second Dept 3-20-13
A curative instruction regarding admitted evidence was requested by the defendant and the court gave the requested instruction to the jury. The defendant did not object to the instruction and did not seek a mistrial. Therefore, the curative instruction “must be deemed to have corrected the error to the defendant’s satisfaction,” precluding appeal on that issue. People v Mendez, 47, KA 09-01194, 4th Dept. 3-15-13
In the context of a SORA determination, the Fourth Department noted that proof the victim had been diagnosed as mildly mentally retarded did not demonstrate the victim suffered from a “mental disability” within the meaning of the Correction Law:
We agree with defendant, however, that the People failed to present the requisite clear and convincing evidence that the victim of the underlying crime suffered from a “mental disability” (see generally Correction Law § 168-n [3]), and thus the court erred in assessing 20 points against him under risk factor 6. Although the People presented evidence that the victim was diagnosed as mildly mentally retarded, “[t]he law does not presume that a person with mental retardation is unable to consent to sexual [activity], . . . and proof of incapacity must come from facts other than mental retardation alone” (People v Cratsley, 86 NY2d 81, 86). Here, the remaining evidence in the record relating to the victim’s capacity failed to establish that she was “incapable of appraising the nature of [her] own sexual conduct” (id. at 87; see People v Easley, 42 NY2d 50, 55-57; cf. People v Jackson, 70 AD3d 1385, 1385, lv denied 14 NY3d 714). People v Green, 254, KA 11-00973, 4th Dept. 3-15-13
A 17-year pre-indictment delay did not violate defendant’s right to a speedy trial. The Fourth Department wrote:
On appeal from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]), defendant contends that the 17-year preindictment delay violated his constitutional right to a speedy trial.We reject that contention. In examining the Taranovich factors (People v Taranovich, 37 NY2d 442, 445), we conclude that, although the 17-year preindictment delay was substantial, the nature of the charge was serious, and defendant remained at liberty until he was indicted. Moreover, the People met their burden of establishing a good-faith basis for the delay (see People v Decker, 13 NY3d 12, 14-16; People v Chatt, 77 AD3d 1285, 1285, lv denied 17 NY3d 793). In particular, they established that there was insufficient evidence to charge defendant shortly after the crimes occurred, and it was not until a witness gave new information to the police that identified defendant as the perpetrator and DNA testing was completed that the People brought the charges against defendant. While the delay may have caused some degree of prejudice to defendant, “ ‘a determination made in good faith to delay prosecution for sufficient reasons will not deprive defendant of due process even though there may be some prejudice to defendant’ ” (Decker, 13 NY3d at 14). People v Gaston, 176, KA 11-00406, 4th Dept. 3-15-13
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