Criminal Law – Page 51 – New York Appellate Digest

THE PROSECUTOR REFUSED TO PARTICIPATE IN THE MURDER TRIAL ARGUING THAT THE JUDGE’S PRECLUSION OF EVIDENCE MADE THE PROSECUTION IMPOSSIBLE; IN THE PROSECUTOR’S ABSENCE AT TRIAL, THE JUDGE DISMISSED THE INDICTMENT PURSUANT TO CPL 290.10; THE JUDGE DID NOT HAVE AUTHORITY TO DISMISS THE INDICTMENT; WRIT OF PROHIBITION GRANTED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Aarons, issued a writ of prohibition against the respondent County Judge nullifying the order dismissing the murder indictment against defendant. The petitioner was the district attorney (DA) who was prosecuting defendant. The DA disagreed with certain preclusion orders issued by the Judge and argued the prosecution of the defendant was rendered impossible by the preclusion of evidence. The DA refused to participate in the trial. At trial, in the DA’s absence, the Judge dismissed the indictment pursuant to Criminal Procedure Law (CPL) 290.10. Because such a dismissal requires a trial as a prerequisite, and because there was no trial, the Third Department held the Judge did not have the authority to dismiss the indictment:

Upon a criminal defendant’s motion, a court may dismiss any count of an indictment on the basis that the trial evidence was not legally sufficient to establish the charged crime (see CPL 290.10 [1] [a]). Critically, a court is empowered to do so “[a]t the conclusion of the [P]eople’s case or at the conclusion of all the evidence” (CPL 290.10 [1]). Based on this language, a dismissal under CPL 290.10 contemplates, at the very least, that a prosecutor actually present a case. This did not occur in the underlying criminal proceeding. Petitioner did not deliver an opening statement, did not call witnesses and did not tender documentary evidence to be received by respondent. Without a case by petitioner, respondent could not dismiss the indictment under CPL 290.10 … . In essence, the dismissal of the indictment was due to the default of petitioner, which respondent lacked authority to do … . Matter of Clegg v Rounds, 2023 NY Slip Op 06181, Third Dept 11-30-23

Practice Point: If the prosecutor refuses to participate in the trial, the judge cannot dismiss the indictment pursuant to CPL 290.10. The statute requires a trial as a prerequisite. Here there was no trial. The prosecutor’s petition for a writ of prohibition against the judge was granted. The “trial” was nullified.

November 30, 2023

Attorneys, Constitutional Law, Criminal Law, Judges, Sex Offender Registration Act (SORA)

THE JUDGE DID NOT INCLUDE FINDINGS OF FACT IN THE SORA RISK-ASSESSMENT ORDER; THE ATTORNEY GENERAL WAS NOT NOTIFIED OF DEFENDANT’S CONSTITUTIONAL ARGUMENTS; ORDER REVERSED (THIRD DEPT).

The Third Department, reversing County Court, determined County Court’s order failed to included the required findings of fact. In addition, the Attorney General should have been notified of defendant’s constitutional arguments:

County Court’s order failed to set forth its findings of fact and conclusions of law as required by Correction Law § 168-n (3). The March 2022 order states that at a hearing held on an unspecified date, the court “set out its findings of fact . . . which support the assignment of points for each risk factor.” No such findings are set forth in the order and, if placed on the record at the hearing, no hearing transcript is contained in the record. Absent any record findings of fact and conclusions of law by the court, this Court is precluded from conducting a meaningful appellate review of the assessment of points and defendant’s risk level classification. As such, the matter must be remitted … . Further, to the extent that defendant raises direct constitutional challenges to certain portions of Correction Law § 168, as set forth in his memorandum submitted to County Court, the record is devoid of any indication that the Attorney General was timely notified of such challenges or whether the court ruled on any of the issues raised. In view of the foregoing, County Court’s March 30, 2022 order is reversed and the matter remitted for further proceedings. People v Kelsey, 2023 NY Slip Op 06186, Third Dept 11-30-23

Practice Point: The Correction Law requires that an order in a SORA risk-level proceeding include findings of fact.

Practice Point: Where a defendant raises constitutional arguments in a SORA risk-level proceeding, the Attorney General must be notified.

November 30, 2023

Criminal Law, Evidence

THE MAJORITY AFFIRMED DEFENDANT’S CONVICTIONS FOR TWO SEPARATE MURDERS WHICH WERE TRIED TOGETHER; A TWO-JUSTICE DISSENT ARGUED THE TWO PROSECUTIONS SHOULD HAVE BEEN SEVERED BECAUSE OF THE WEAKNESS OF THE EVIDENCE AND THE PROBABILITY THE JURY WOULD NOT CONSIDER THE EVIDENCE OF EACH MURDER SEPARATELY (THIRD DEPT).

The Third Department affirmed defendant’s convictions over a two-justice dissent arguing that the two charged murders should have been tried separately:

Defendant argued that the People had joined “two underwhelming cases” in hopes that the jury would be more likely to convict a “common suspect.” In opposing the motion, the People argued that the counts in the indictment were properly joinable pursuant to CPL 200.20 (2) (c) and, among other things, the People planned to call two incarcerated individuals who were housed with defendant and to whom defendant made certain admissions. At trial, both of the incarcerated individuals and the medical examiner, among others, provided testimony relevant to each of the two victims. Defendant’s motion was facially devoid of any good cause showing. * * *

From the dissent:

… [T]he People chiefly relied on circumstantial evidence, the proof linking defendant to either murder is not overwhelming, the two incidents that form the basis of these charges took place 2½ years apart and there was no unique modus operandi to link the commission of the crimes to defendant … . Further, a review of the record demonstrates that the quantum of evidence relating to each incident was not substantially similar but, rather, proof relating to the second murder is significantly more abundant in quantity and significant in scope. Despite County Court’s instruction to the jury to consider the evidence separately, there was a substantial likelihood that the jury “aggregate[d] the evidence relating to each incident” … , as it is much more likely that the jury would focus on the abhorrent common nature of the crimes than to focus on the fundamental differences of proof … . People v Mero, 2023 NY Slip Op 06000, Third Dept 11-22-23

November 22, 2023

Criminal Law

IF THE PEOPLE WERE AWARE OF DEFENDANT’S LOCATION OUT-OF-STATE AND DID NOT EXERCISE “DUE DILIGENCE” IN SECURING HER RETURN TO NEW YORK THE SPEEDY TRIAL CLOCK WOULD NOT STOP RUNNING BASED SOLELY ON HER ABSENCE; HEARING REQUIRED (THIRD DEPT).

The Third Department, reversing County Court, determined defendant had raised questions of fact whether the People were aware of her location in Virginia between her indictment in 2013 and her return to New York in 2018. County Court, therefore, should have held a hearing on her “speedy trial” motion to dismiss. If the People were aware of her location, and did not exercise “due diligence” to secure her presence in New York, the speedy trial clock would not have been stopped based solely on defendant’s absence from the state:

“Having charged defendant with a felony, the People were required to be ready for trial within six months of the filing of the first accusatory instrument, here the felony complaint[s]” issued on September 3, 2013 … . As defendant consistently asserted her speedy trial rights, and the People did not announce readiness for trial until October 3, 2018, it was incumbent upon the People “to show that any delay beyond the statutory maximum should be excluded” … . The People primarily attempted to do so by relying upon CPL 30.30 (4) (c) (i), which renders “the period of delay resulting from [defendant’s] absence or unavailability” excludable, arguing that defendant had absconded after the shooting and remained unavailable until her arrest on August 30, 2018. Absence in that context means that the defendant’s “location is unknown and he [or she] is attempting to avoid apprehension or prosecution, or his [or her] location cannot be determined by due diligence,” while unavailability occurs “whenever [the defendant’s] location is known but his [or her] presence for trial cannot be obtained by due diligence” … . Notably, “[a]bsent a demonstration of ‘prosecutorial diligence in locating the defendant and/or securing his [or her] presence,’ the mere fact that the defendant was in another jurisdiction when the action was commenced does not entitle the People to exclude the time” … . People v Pittman, 2023 NY Slip Op 06001, Third Dept 11-22-23

Practice Point: The defendant presented documentary evidence demonstrating the People were aware of her location out-of-state and did not exercise “due diligence” in securing her return to the state for five years. She was entitled to a hearing on her “speedy trial” motion to dismiss.

November 22, 2023

Criminal Law, Evidence

ALTHOUGH DEFENDANT WAS IN A PRISON AS A VISITOR WHEN THERE WAS A CANINE ALERT TO DRUGS ON HER PERSON, THE CIRCUMSTANCES WERE SUCH THAT ANY QUESTIONING SHOULD HAVE BEEN PRECEDED BY THE MIRANDA WARNINGS; A REASONABLE PERSON WOULD NOT HAVE FELT FREE TO LEAVE; BECAUSE THEY WERE CLOSE IN TIME, BOTH HER ORAL STATEMENT AND HER POST-MIRANDA WRITTEN STATEMENT SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, reversing County Court, determined the defendant, who, as a visitor in a prison, was taken aside by an investigator after a canine alert to the presence of drugs on her person, was subjected to “custodial interrogation” requiring suppression of her admission to having drugs and her subsequent written statement:

… [W]hen the canine alerted, the metal door that defendant had just passed through was closed and could only be opened by a security officer. In view of this particular setting, a reasonable person innocent of wrongdoing would not have felt that he or she was free to leave.

… [T]aking into account that the investigator took defendant aside because a canine had just alerted, as well as the purpose of having a canine at a security checkpoint, the investigator’s inquiry of defendant as to why she thought the canine alerted was not merely investigatory or a request for pedigree information. Rather, it was accusatory and designed to elicit an incriminating response. Under these particular circumstances, defendant made the initial oral statements in a custodial setting, thereby requiring Miranda warnings. In the absence of such warnings, the initial oral statements should have been suppressed … .

As to the written statement, it was given after Miranda warnings were issued. To that end, “where an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a ‘single continuous chain of events,’ there is inadequate assurance that the Miranda warnings were effective in protecting a defendant’s rights, and the warned statement must also be suppressed” … . The record reveals that defendant was interviewed by the same person and in the same room, that she gave her written statement almost immediately after the investigator’s initial inquiry as to why she thought the canine alerted and that the whole process took less than 30 minutes without any breaks. Accordingly, the written statement should have been suppressed as being tainted by the improper questioning by the investigator … . People v Kelly, 2023 NY Slip Op 06003, Third Dept 11-22-23

Practice Point: Although not always the case re: a visitor in a prison, here the circumstances warranted finding that defendant was “in custody” when she was asked a question by a prison investigator after a canine alert to drugs on her person. Because the question preceded the Miranda warnings, her statement should have been suppressed.

Practice Point: Here defendant’s post-Miranda written statement, made 30 minutes after her unwarned oral statement, should have been suppressed.

November 22, 2023

Attorneys, Criminal Law, Evidence

THE CONCLUSIONS OF THE PEOPLE’S ACCIDENT-RECONSTRUCTION EXPERT (WHO WAS NOT CALLED TO TESTIFY AT TRIAL) WOULD HAVE HAD AN IMPACT ON THE CONCLUSIONS DRAWN BY THE DEFENSE ACCIDENT-RECONSTRUCTION EXPERT; WITHHOLDING THE EVIDENCE FROM THE DEFENSE WAS A BRADY VIOLATION REQUIRING REVERSAL AND A NEW TRIAL (THIRD DEPT).

The Third Department, reversing defendant’s vehicular homicide and manslaughter convictions and ordering a new trial, determined expert opinion evidence constituted Brady material which was wrongfully withheld from the defense. The People’s accident-reconstruction expert in question, who did not testify at the trial, was named Pinzer. The defense accident-reconstruction expert, named Silver, testified in the CPL 440 hearing that his opinion would have been influenced by Pinzer’s findings. The driver lost control of the car which flipped several times. The defendant survived and the other occupant was ejected from the car and died. The withheld expert evidence called into question various aspects of law enforcement’s investigation of the accident, the speed of the car at the time of the accident, for example:

Silver … testif[ied] at the hearing that, although knowledge of [Pinzer’s conclusions] would not have changed his ultimate conclusion as to who was operating the vehicle, it did have a direct and significant impact on his methodology and findings. For example, had he known that the data was corrupted, he would have performed his analysis differently and explained to the jury why law enforcement’s data was unreliable; he would have also been able to rebut any challenge to his credibility for the use of multiple formulas and his own data. He also averred that, in light of the new information regarding the data, his trial testimony as to the vehicle’s speed prior to the accident — 55 to 65 miles per hour — was overstated. * * *

… [I]n view of the character of the withheld information here, the misleading disclosure that was made, the manner in which the prosecutor elected to act on Silver’s testimony of defendant’s innocence and the circumstantial nature of this case, we agree with defendant that Pinzer’s opinion … must be considered favorable to the defense. * * *

… Pinzer was an arm of the prosecution, acting on the government’s behalf, and the People had a duty to learn of his opinion, which “directly relates to the prosecution or investigation of . . . defendant’s case” … . * * *

… [T]here was no reasonable possibility that the People’s failure to disclose Pinzer’s opinion did not impact the verdict … . The prosecutor’s cross-examination of Silver and his statements in summation — which sought to both bolster the legitimacy of police work that he should have known was faulty and impugn the credibility of Silver for not exclusively relying upon same — “compounded the prejudice” to defendant … . People v Hoffman, 2023 NY Slip Op 06004, Third Dept 11-22-23

Practice Point: Here, in this vehicular homicide case, the People did not disclose the conclusions reached by their accident-reconstruction expert, who was not called to testify at trial. The defense accident-reconstruction expert would have changed some of his conclusions had he been aware of the People’s expert’s analyses. Withholding the People’s expert’s findings from the defense was a Brady violation requiring reversal and a new trial.

November 22, 2023

Appeals, Criminal Law, Evidence

A POOR-QUALITY VIDEO SHOWED THE SHOOTING AND THE SHOOTER GETTING INTO THE DRIVER’S SEAT OF THE CAR WHICH WAS STOPPED AFTER A CHASE; THERE WAS NO EVIDENCE ANY OF THE OCCUPANTS GOT OUT OF THE DRIVER SIDE OF THE CAR; TWO OF THE OCCUPANTS HAD CLOTHES SIMILAR TO THOSE WORN BY THE SHOOTER; DEFENDANT’S CONVICTION WAS SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE; BUT DEFENDANT’S CONVICTION WAS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT),

The Third Department, reversing defendant’s manslaughter conviction, determined the verdict was not supported by the weight of the evidence. The shooting was captured on a video and showed the shooter getting into the driver’s seat of a vehicle which drove off. After a chase the vehicle was stopped and three persons got out of the car. There was no evidence anyone got out of the car on the driver’s side. The defendant was found by the police lying in the grass near the car. Two of the people who got out of the car were dressed in clothes similar to those seen in the poor-quality video of the shooting:

“[A]s an implicit but necessary element of each and every crime, the People must prove beyond a reasonable doubt the identity of the defendant as the person who committed the crime” … . Viewing the evidence in a neutral light, the People failed to prove beyond a reasonable doubt that defendant was the shooter. The conviction must therefore be reversed as the verdict is against the weight of the evidence … . People v Jones, 2023 NY Slip Op 06007, Third Dept 11-22-23

Practice Point: This decision demonstrates the difference between “legally sufficient evidence,” which will get by a motion for a trial order of dismissal, and a “weight of the evidence” analysis which results in reversal despite the presence of “legally sufficient evidence.” Two occupants of the car which was involved in the shooting had clothes similar to the clothes worn by the shooter as seen in a poor quality video. Although the driver was the shooter, there was no evidence anyone got out of the driver’s side of the car after it was stopped. The People therefore did not prove the identity of the shooter beyond a reasonable doubt. The conviction was supported by “legally sufficient evidence.” But the conviction was reversed as “against the weight of the evidence.”

November 22, 2023

Criminal Law, Judges

COUNTY COURT DID NOT CORRECTLY APPLY THE CRITERIA OF THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) WHEN CONSIDERING DEFENDANT’S MOTION FOR RESENTENCING; THE THIRD DEPARTMENT DETERMINED DEFENDANT WAS ENTITLED TO A MORE LENIENT SENTENCE UNDER THE ACT AND RESENTENCED HER TO TIME SERVED (THIRD DEPT).

The Third Department, reversing County Court and resentencing defendant to time served, determined County Court did not comply with the criteria of the Domestic Violence Survivors Justice Act (DVSJA) when considering defendant’s motion for resentencing under the act. Defendant had been convicted of killing her paramour and was sentenced to ten years in prison:

The DVSJA, in recognition of the profound and pervasive trauma suffered by victims of substantial abuse, permits courts to impose more lenient sentences in certain cases where a victim of domestic violence commits crimes against his or her abuser or as a result of that abuse … . * * *

… [T]he court misapplied the language of Penal Law § 60.12 (1) (a) by requiring that the abuse occur “at the time of the instant offense.” Indeed, such temporal argument would inherently invoke the defenses of duress or justification, however, the legislative history makes it clear that the DVSJA was enacted to address shortfalls in each of those defenses, “as victims of abuse may not be psychologically or socially capable of invoking such defenses at the time of their trials, due to their victimization and its impact on them” … . * * *

… County Court found that the abuse suffered by defendant “was a factor” in her commission of the crime, but failed to conclude as to whether it was a “significant contributing factor” as is required under the statute. Moreover, the court did not articulate a factual basis for its finding in this regard. * * *

… [T]he DVSJA, Penal Law § 60.12 (1) (c) expressly provides that a determination as to whether a standard sentence would be “unduly harsh” is to be made in consideration of the “the nature and circumstances of the crime and the history, character and condition of the defendant.” Although the court’s written decision notes defendant’s age, lack of criminal history and the fact that she is the mother of two children, no discussion is devoted to these circumstances or what weight they should be afforded in considering her resentencing application. People v Liz L., 2023 NY Slip Op 06008, Third Dept 11-22-23

Practice Point: The criteria for resentencing under the Domestic Violence Survivors Justice Act (DVSJA) discussed in some detail.

November 22, 2023

Criminal Law, Evidence

TWO PRIOR POSSESSION OF A WEAPON INCIDENTS IN 2006 AND 2007, WHERE DEFENDANT CLAIMED THE WEAPONS BELONGED TO ANOTHER AND HE WAS UNAWARE OF THEIR PRESENCE, SHOULD NOT HAVE BEEN ADMITTED UNDER MOLINEUX IN THIS 2017 POSSESSION OF A WEAPON PROSECUTION, WHERE DEFENDANT CLAIMED THEY WERE PLACED IN THE VEHICLE BY ANOTHER WITHOUT HIS KNOWLEDGE; THERE WAS A CONCURRENCE AND A THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Halligan, over a concurrence and a three-judge dissent, determined evidence of two prior possession-of-a-weapon incidents in 2006 and 2007, one uncharged and one misdemeanor, should not have been admitted under Molineux in the instant 2017 weapons-possession prosecution. In the 2006 and 2007 cases, defendant claimed the weapons belonged to another and he wasn’t aware of their presence. In the 2017 case defendant claimed someone else put the weapons in his vehicle without his knowledge. The weapons were legally purchased and registered to the defendant in Florida:

During an inventory search, the police recovered various items, including two small bags of marijuana and cash. They also found a loaded .45 caliber gun in the truck’s center console, as well as three handguns and ammunition in the flatbed area; each firearm was legally purchased and registered in Telfair’s name in Florida. The defendant was charged with several crimes related to possession of weapons and ammunition, as well as various vehicle and traffic violations.

The People moved under People v Molineux, 168 NY 264 (1901) to introduce evidence of two prior incidents involving Telfair’s possession of a weapon: a 2006 uncharged crime and a 2007 misdemeanor conviction for weapon possession. The People expected that Telfair would claim at trial that someone else had packed his truck and unbeknownst to him, placed his guns inside it, and the prior acts would show the defendant actually knew he possessed the firearms on the day of his arrest. Defense counsel responded that given the temporal remoteness and dissimilarity of the prior incidents, they had “little, if any, probative value” and were highly prejudicial, in part because the 2007 conviction concerned the same charge for which Telfair was now on trial. When asked whether he would assert that Telfair did not know the guns were in his car, defense counsel did not disclaim the defense. * * *

The 2006 and 2007 incidents were neither very similar nor close in time to the 2017 incident. Just the opposite: they involved different guns, different sets of circumstances, different excuses, and occurred more than 10 years earlier. People v Telfair, 2023 NY Slip Op 05965, CtApp 11-21-23

Practice Point: This case must be read carefully and repeatedly, as it illustrates subtle but profoundly important restrictions on the admissibility of Molineux evidence.

November 21, 2023

Attorneys, Criminal Law

DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO REQUEST A JURY CHARGE ON THE ONLY DEFENSE AVAILABLE TO THE DEFENDANT; THREE JUDGE DISSENT FOCUSED ON THE WEAKNESS OF THE DEFENSE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Wilson, over a three-judge dissent, determined defendant did not receive effective assistance of counsel. Defendant was charged with criminal possession of a weapon. The weapon was discovered by a police officer under a floor mat in defendant’s car after a traffic stop. At trial defendant claimed he was stopped on his way to surrender the weapon to a gun buyback program. The majority concluded defense counsel was ineffective for failure to request the “voluntary surrender” jury charge. Defense counsel requested the “temporary and lawful possession” jury charge, which was directly contradicted by the trial evidence:

Here, counsel knew that his client’s explanation was that he was traveling to turn the gun in to the NYC gun buyback program. Indeed, in his opening statement, counsel admitted to the elements of the crime of criminal possession of a weapon and offered a defense, explaining that Mr. Debellis [defendant] , in desperate need of money, was transporting the gun to a police buyback program in the Bronx.

However, after announcing that line of defense and supporting it through Mr. Debellis’s trial testimony, counsel failed to request the only jury instruction that would give it any legal weight—a defense of voluntary surrender under PL 265.20 (a) (1) (f). Counsel premised his case instead on the common-law defense of temporary and lawful possession, which was completely inapplicable given the length of time Mr. Debellis had possessed the weapon in contravention of a preexisting court order that he had to divest himself of all firearms. Even after the court explicitly told counsel that that it would not instruct the jury on temporary and lawful possession because it did not fit the evidence, counsel failed to request an instruction on the statutory defense that fit his client’s testimony and counsel’s own argument to the jury

From the dissent:

Today the majority holds that defense counsel was ineffective for not requesting a jury charge that would have allowed the jury to find that defendant’s possession of the unlicensed gun was lawful because, at trial, defendant claimed for the first time that he was on his way to a police agency to surrender the gun. Because no reasonable view of the undisputed facts supports such a charge, defendant was not entitled to it. Nor was counsel’s overall performance deficient. Nevertheless, defendant, who denied having a weapon when asked by the police and who was allowed access to the area where he had hidden a loaded gun based on that false statement, thereby endangering the life of the officer who stopped him and numerous nearby civilians, now has his unlawful possession of a weapon conviction reversed by this Court. People v Debellis 2023 NY Slip Op 05964, CtApp 11-21-23

Practice Point: Here defense counsel did not request a jury charge for the only viable defense offered by the defendant in his trial testimony (i.e., he was on his way to surrender the weapon to the gun buyback program when the police found it under the floor mat of his car). The majority held defense counsel was ineffective. The dissent focused on the weakness of the defense. Bottom line, if the defendant has only one defense, even if it is not credible, defense counsel is obligated to present it to the jury.

November 21, 2023

THE JUDGE DID NOT INCLUDE FINDINGS OF FACT IN THE SORA RISK-ASSESSMENT ORDER; THE ATTORNEY GENERAL WAS NOT NOTIFIED OF DEFENDANT’S CONSTITUTIONAL ARGUMENTS; ORDER REVERSED (THIRD DEPT).

IF THE PEOPLE WERE AWARE OF DEFENDANT’S LOCATION OUT-OF-STATE AND DID NOT EXERCISE “DUE DILIGENCE” IN SECURING HER RETURN TO NEW YORK THE SPEEDY TRIAL CLOCK WOULD NOT STOP RUNNING BASED SOLELY ON HER ABSENCE; HEARING REQUIRED (THIRD DEPT).

DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO REQUEST A JURY CHARGE ON THE ONLY DEFENSE AVAILABLE TO THE DEFENDANT; THREE JUDGE DISSENT FOCUSED ON THE WEAKNESS OF THE DEFENSE (CT APP).

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