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Mistrial on Motion by Prosecution Precluded Retrial.

The prosecution moved for a mistrial based on defense counsel’s improper questioning of a witness in defiance of the court’s instructions.  The court granted the mistrial.  The First Department, in a full-fledged opinion by Justice Freedman, determined that the defendant could not be retried.  “When the court declares a mistrial on the prosecution’s motion and over the defendant’s objection, a retrial is precluded unless ‘there is a manifest necessity for [the mistrial], or the ends of public justice would otherwise be defeated’ …”  The First Department felt that defense counsel’s conduct, while blameworthy, could have been adequate addressed by alternative measures and, therefore, there was not a sufficient basis in the record for a mistrial.  Matter of Morris vs. Livote, 4334/10, 9012-5107, First Dept. 2-21-13

double jeopardy

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SORA Hearing Procedure.

In this case, the Second Department clearly laid out the acceptable sources of information, the applicable standards of proof, and the criteria for departure from the presumptive level in a SORA hearing. People vs Lacewell, 2008-07498, Second Dept. 2-20-13

 

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Witness Impeached With Attorney’s Statements.

“The Supreme Court properly permitted the People to impeach the testimony of a defense witness with a statement made by that witness’s former counsel at a plea proceeding… .The statement, which differed from the witness’s trial testimony, reasonably appeared to be attributable to the witness … “.  People vs Davis, 2010-11219, Ind. No. 921/09 Second Dept. 2-20-13

 

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Miranda Violations Mandate Suppression.

A police officer approached defendant who was in a parked car. The officer smelled a “strong odor of unburnt marijuana coming from the defendant’s vehicle’s open window.”  The officer asked if the occupants of the vehicle had “anything illegal.”  The defendant produced a small bag of marijuana.  The officer then told the defendant to get out of the vehicle “as he was now under arrest for unlawful possession of marijuana.”  The officer searched the vehicle and found two bags of marijuana under the driver’s seat.  When he asked the defendant if the bags of marijuana were his, he said “yes.”  A gun was also recovered in the search.  The defendant was taken to the police station where he was read his Miranda rights for the first time and he declined to speak with the detective. Two hours later the arresting officer told the defendant that if no one confessed to owning the gun, everyone in the vehicle would be “equally charged.”  The defendant then asked to speak to the detective.  He was read his Miranda rights again and confessed to owning the gun.  The Second Department suppressed the marijuana and the gun—the marijuana because the defendant was in custody and had not been read his rights at the time he was asked about it—and the gun because defendant had initially refused to speak with the police thereby asserting his right to remain silent.  Subsequent questioning was not proper.  People vs. Jackson, 2011-05745, Ind. No. 10-00130 Second Dept. 2-20-13

DeBour, street stops

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any failure by defense counsel to move to suppress identification testimony did not rise to ineffective assistance.

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined that defense counsel’s failure to move to suppress based upon a violation of Criminal Procedure Law 710.30, which requires notice of any identification of the defendant as the perpetrator, did not rise to ineffective assistance. Although the People provided notice of an identification of the defendant by the victim at a particular time, they did not provide notice of a subsequent identification by the victim a few minutes later after defendant was in custody:

Assuming that there was a section 710.30 violation, it might not have resulted in exclusion of the evidence in question. CPL 710.30 (2) provides for the possibility of late notice, and a belated suppression hearing, when the People show “good cause.” The belated notice and hearing may occur during the trial …, and if the trial court thought the People had made an excusable error it might have granted such a remedy here.

In short, it is not obvious that defendant’s counsel could have successfully sought preclusion of the evidence of the victim’s post-arrest identification under section 710.30. An argument for preclusion could have been made, but not an argument “so compelling that a failure to make it amounted to ineffective assistance of counsel” … . Counsel’s performance should not be “second-guessed with the clarity of hindsight” … . Any deficiency in her performance was not so great that it can support an ineffective assistance claim.

Nor has defendant shown any serious likelihood that he was prejudiced by trial counsel’s alleged error. Even if the trial court had precluded evidence of the victim’s post-arrest identification, the evidence against defendant would remain strong. People v Vasquez, 2013 NY Slip Op 01016 [20 NY3d 461], CtApp 2-19-13

 

 

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Breathalyzer Maintenance and Calibration Records are Nontestimonial/Vehicle Stop Based on Presence of College Sticker on Back Window Upheld –Judge Pigott , in a Dissent, Would Have Found the Vehicle Stop Unreasonable and Granted Suppression

The Court of Appeals determined the “records pertaining to the routine inspection, maintenance and calibration of breathalyzer machines can be offered as evidence in a criminal trial without producing the persons who created the records. …[S]uch records are nontestimonial…”  Judge Pigott agreed with that “Confrontation Clause analysis” but wrote a dissent about the nature of the vehicle stop that led to the DWI arrest. The suppression court had ruled that the stop was not supported by probable cause “but for … a Finger Lakes Community College sticker in the rear window…”.  Apparently such a sticker violates Vehicle and Traffic Law section 375 (1)(b)(i).  Judge Pigott noted that college stickers are common, the statute is rarely if ever enforced, and stopping a car because of a sticker is “not objectively reasonable.”  Judge Pigott would have suppressed the evidence which arose from the stop.  People vs Pealer, No. 9, CtApp 2-19-13

 

Judge’s Mistaken Belief Period of Post-Release Supervision Was Mandatory Required Resentencing.

Resentencing was required where the sentencing judge indicated the five-year post-release supervision was mandatory.  There was, however, an applicable exception to the five-year rule which the judge had the discretion to impose.  (Penal Law section 70.45 former [2]).  People vs Whitmore, 104652 Third Dept. 2-14-13

 

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Procedure for Modification of SORA Level.

The Third Department described the proper procedure for a petition for the modification of a SORA level pursuant to Correction Law section 168-o. Both an updated recommendation of the Board of Examiners and a hearing are required.  People vs Hazen, 514028 Third Dept. 2-14-13

 

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Because the “Identity” of the Perpetrator Was Not an Issue, Allowing Evidence of Prior Crimes to Prove Identity Was Reversible Error.

In a case based upon allegations the defendant assaulted his wife in a jealous rage, the trial judge allowed evidence of a prior crime to prove the “identity” of the perpetrator pursuant to the Molineux rule. The Second Department, in a prior decision, reversed the conviction finding that the perpetrator’s identity was not an issue in the case. After the initial reversal by the Second Department, the Court of Appeals, in turn, reversed the Second Department finding that the perpetrator’s identity had not been “conclusively established,” and sent the case back to determine if the identity exception was applicable to the facts. The Second Department stuck to its initial reasoning, finding that allowing the “prior crime” evidence on the issue of the perpetrator’s “identity” was an abuse of discretion because the prejudicial effect of the evidence outweighed its probative value. People vs Agina, 2005-11978, Ind. No. 1733/04 Second Dept. 2-13-13

 

Flight Provided Justification for Pursuit.

Because the defendant resembled a “mug shot” of a wanted person, the police had the right to approach him to request information. Because the defendant was in an area the wanted person was known to frequent, the police had the common-law right to inquire.  The defendant’s flight provided reasonable suspicion to pursue and stop him.  The defendant’s discarding of a gun during the chase, therefore, was not the result of improper police action.  People vs Barrow, 2011-030059, Ind. No. 1356/09 Second Dept. 2-13-13

DeBour, street stops

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