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Destruction of Video that May Have Been Relevant to the Defense Required Adverse Inference Charge

The defendant was charged with (and convicted of) assaulting jail deputies.  A video which may have captured at least some of the incidents was destroyed by “recording over” after 30 days, a jail policy. A request for any relevant electronic surveillance was made in the omnibus motion.  The indictment included incidents in November, 2006, and January, 2007. By the time the omnibus motion was made, only the video of the January incident was still available (pursuant to the 30-day “record over” policy).  The trial court agreed to give an adverse inference charge with respect to the January incident, but refused to give the adverse inference charge for the November incident.  The appellate division determined the adverse inference charge needn’t have been given because there was no evidence the video evidence would have been exculpatory.  In a full-fledged opinion by Judge Smith, the Court of Appeals reversed, finding the law of evidence required that the adverse inference charge be given:

We resolve this case, following the approach taken by the Maryland Court of Appeals in Cost v State (417 Md 360, 10 A3d 184 [2010]) by holding that, under the New York law of evidence, a permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence has been destroyed by agents of the State.  People v Handy, 35, CtApp 3-28-13

 

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Representation of Co-defendants by Attorneys In Same Firm Constituted Ineffective Assistance

Defendant brought a motion pursuant to Criminal Procedure Law Article 440 to vacate his conviction on the ground that he was deprived of effective assistance of counsel.  Defendant’s attorney was “of counsel” to the law firm of the attorney who represented a co-defendant.  The co-defendant agreed to testify against the defendant in return for a lesser sentence.  Ultimately the defendant pled guilty.  In reversing the judgment of conviction, the Third Department, in a decision by Justice Stein, wrote:

When a single attorney or multiple attorneys associated with the same firm simultaneously represent clients in a criminal matter, “if the clients’ interests actually conflict, and if the defendant has not waived the conflict, the defendant is deprived of the effective assistance of counsel”… People v Lynch, 104852, 104945, 3rd Dept 3-26-13

 

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Search of Camera in Possession of the Police for Illegal Images Was Valid Even though Underlying Warrant Was Issued In a Case Closed Before the Search

In a search, the defendant’s computer and camera were seized.  Based on a picture found on the computer, the defendant pled guilty to possessing a sexual performance of a child.  After his sentence was served and after the time to appeal had elapsed defendant’s attorney contacted the prosecutor and asked for defendant’s seized camera to be returned. At that time the camera was analyzed for the first time and images found on the camera were the basis for the predatory sexual assault conviction that was before the Court of Appeals. The defendant moved to suppress the images found on the camera arguing that at the time the images were found the authority provided by the warrant under which the camera was seized had lapsed, making the search of the camera illegal.  In a full-fledged opinion by Judge Lippman, the Court of Appeals determined that the defendant had no expectation of privacy in the contents of the seized camera, and, therefore, the search of the camera did not violate the Fourth Amendment.  Judge Lippman noted that “it would not be compatible with due process for the state to retain property under color of a search warrant beyond the exhaustion of any law enforcement purpose adequate to justify the withholding…”.  Here, the Court determined, a legitimate law enforcement purpose existed at the time the analysis of the camera was done.  The camera could not be returned until it was determined no illegal images were contained in it. People v DeProspero, 44, CtApp 3-26-13

SEARCH AND SEIZURE, SUPPRESS, SUPPRESSION

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In a Sexual Abuse Case, Prosecutor’s Hypothetical Questions to Expert Which Mirrored Complainant’s Testimony Constituted Improper Bolstering

In another “sexual abuse” opinion by Judge Pigott, the Court of Appeals, as it did in People v Diaz (decided the same day), determined the expert’s testimony about Child Sexual Abuse Accommodation Syndrome, which included explanations about how an abuser gains the trust of the victim and encourages secrecy, etc., was admissible.  But here the prosecutor followed up the expert’s general testimony with hypothetical questions which mirrored the victims’ testimony.  The Court of Appeals determined the hypothetical questions constituted improper bolstering (but held the testimony to be harmless error under the facts):

We agree with defendant …that the expert’s testimony exceeded permissible bounds when the prosecutor tailored the hypothetical questions to include facts concerning the abuse that occurred in this particular case. Such testimony went beyond explaining victim behavior that might be beyond the ken of a jury, and had the prejudicial effect of implying that the expert found the testimony of this particular complainant to be credible – even though the witness began his testimony claiming no knowledge of the case before the court.  People v Williams, 53, CtApp 3-26-13

 

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Expert’s Testimony About the Behavior of Sexual Abusers Is Proper/Exclusion of Testimony About Complainant’s Prior False Allegations of Sexual Abuse Was Reversible Error

In an opinion by Judge Pigott, the Court of Appeals affirmed the appellate division’s reversal of defendant’s sexual abuse convictions.  The Court of Appeals disagreed with the appellate division and determined expert testimony allowed by the trial court about how sexual abusers gain the trust of their victims was admissible. But the Court of Appeals went on to find (agreeing with the appellate division) that the trial court’s exclusion of testimony (by Martinez) about the complainant’s prior allegedly false accusations of sexual abuse was reversible error.  On these two issues, Judge Pigott wrote:

Expert testimony is properly admitted if it helps to “clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” … . Here, it was not an abuse of discretion for the trial court to permit expert testimony regarding the behavior of sexual abusers. That testimony is permissible as helpful for the jury to understand victims’ unusual behavior … . Although some of the testimony discussed behavior similar to that alleged by the complainant in this case, the expert spoke of such behavior in general terms … . In addition, the jury heard the expert testify that she was not aware of the facts of the particular case, did not speak with the complainant and was not rendering an opinion as to whether sexual abuse took place.

We agree with the Appellate Division, however, that the proffered testimony of Martinez should have been permitted at trial. Evidence of a complainant’s prior false allegations of sexual abuse is not inadmissible as a matter of law . Rather, it may be permitted if the prior allegations “suggest a pattern casting substantial doubt on the validity of the charges” … .

Here, Martinez’s proposed testimony went to a material issue of defendant’s defense, namely, whether the complainant had a history of making false allegations of sexual abuse by family members. Defense counsel sought to introduce the testimony as a prior inconsistent statement; to confront the complainant’s testimony that she never made an allegation against Martinez and to rebut the testimony of the complainant’s mother who testified she was unaware of any accusation made by complainant against Martinez. These statements opened the door to Martinez’s rebuttal, which, if believed, suggested that the testimony of the complainant and her mother were not credible.  People v Diaz, 52, CtApp 3-26-13

 

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Failure to Request Jury Charge for Lesser Included Offense Constituted Ineffective Assistance

In finding that defense counsel’s failure to request that the jury be charged with a lesser included offense constituted ineffective assistance, the Court of Appeals wrote:

In his closing argument, [defense] counsel asked the jury to acquit defendant of attempted murder, but virtually invited a conviction for first degree assault. After saying: “on that particular charge [attempted murder], I’m going to ask that you actually check off the box that says ‘not guilty,'” he added, as to the assault charges: “Make your decision . . . . I’m sure, whatever it is, it will be the right decision.” *  *

Counsel’s belief that his client was without a defense to first degree assault was mistaken. The record affords a good-faith basis for an argument that the injuries the victim received did not result in serious and protracted, or serious and permanent, disfigurement … .  We conclude that counsel’s error in overlooking that issue rendered his assistance to defendant ineffective …. People v Nesbitt, 28, CtApp 3-26-13

 

 

 

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Disorderly Conduct as a Family Offense Needn’t Occur in a Public Place

The Fourth Department determined that “disorderly conduct” as a family offense does not require the conduct to take place in public:

Contrary to respondent’s contention, petitioner met her burden of establishing by a preponderance of the evidence that respondent committed the family offense of disorderly conduct … . Although respondent’s conduct did not take place in public, section 812 (1) specifically states that, “[f]or purposes of this article, ‘disorderly conduct’ includes disorderly conduct not in a public place.” In addition, disorderly conduct may be committed when a person “recklessly creat[es] a risk” of annoyance or alarm through violent or threatening behavior. We thus reject respondent’s contention that the statute “requires more than a ‘risk.’ ”  Matter of McLaughlin v McLaughlin, 330, CAF 12-01556, 4th Dept. 3-22-13

 

 

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SORA Finding Reduced Twenty Points—No Evidence or Findings Re: Targeting of Victim

The Fourth Department determined the People did not present sufficient evidence defendant targeted the victim and the SORA court did not set forth the relevant findings of fact and conclusions of law.  Therefore the SORA score was reduced by 20 points:

At the SORA hearing, the People had “the burden of proving the facts supporting the [risk level classification] sought by clear and convincing evidence” … . Here, the People failed to meet their burden of establishing that defendant “established or promoted” his relationship with the victim “for the primary purpose of victimization” (Sex Offender Registration Act…) ..The People presented no evidence that defendant, who met the victim at a party, targeted the victim for the primary purpose of victimizing her …. As a result of the court’s error, defendant’s score on the risk assessment instrument must be reduced by 20 points, and thus he should be presumptively classified as a level two risk.  We therefore modify the order accordingly.

We note in any event that we agree with defendant that the court failed to comply with Correction Law § 168-n (3), inasmuch as it failed to set forth the findings of fact and conclusions of law upon which it based its determination to assess points under risk factor 7 …

The court merely recited its conclusion, i.e., that “[d]efendant established a relationship with [the victim] for the purpose of victimization.” People v Johnson, 341, KA 12-00361, 4th Dept. 3-22-13

 

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Allowing the Jury to Hear About Defendant’s Prior Crimes Was Error

Although finding it to be harmless error, the Fourth Department determined the jury should not have been allowed to hear portions of defendant’s grand jury testimony which included references to being on parole, being imprisoned and having sold drugs:

We agree with defendant that County Court erred in failing to consider the appropriate factors when it allowed the jury to hear portions of defendant’s grand jury testimony that included references to being on parole, serving five years for robbing banks, and having on occasion sold drugs. “Prejudicial material ‘not necessary to a full comprehension of the’ directly related evidence . . . is inadmissible, even though part of the same conversation . . . or, indeed, of the same sentence” … . That principle applies to the admission at trial of a defendant’s grand jury testimony just as it does to, e.g., audio recordings of telephone conversations … , statements made during the course of a crime to an undercover police officer …, and admissions made to police officers during custodial interrogation …. The court allowed the jury to hear such portions of defendant’s grand jury testimony after concluding only that the statements were voluntary.  In doing so, the court failed to consider whether such evidence was relevant and probative to any issue in this case … and then, if so, whether “its probative value exceed[ed] the potential for prejudice resulting to the defendant” … .  People v Woods, 322, KA 08-02465, 4th Dept. 3-22-13

 

 

Indictment Rendered Duplicitous by Trial Evidence Required Reversal

The Fourth Department reversed a conviction finding the indictment was rendered duplicitous by the trial evidence:

It is apparent from the record that the grand jury returned only a one-count indictment, having found the evidence of possession of the uncut cocaine insufficient to return a second count. The indictment was rendered duplicitous …because the People presented evidence at trial that defendant had constructive possession of both the uncut cocaine and the cocaine in the sandwich bag. Indeed, the prosecutor advanced that theory in her opening statement and on summation. “Under the circumstances, there can be no assurance that the jury ‘reached a unanimous verdict’ ” with respect to defendant’s constructive possession of the cocaine in the sandwich bag as opposed to the uncut cocaine … . People v Montgomery, 260, KA 09-00153, 4th Dept. 3-22-13

 

 

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