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THE PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE; THE FACT THAT THE VICTIM WAS SHOT IN THE BACK DURING A SHOOTOUT WAS NOT ENOUGH (FIRST DEPT).

The First Department, exercising its interest of justice jurisdiction, reversing defendant’s manslaughter conviction, determined the People did not disprove defendant’s justification defense. The fact that, during a shoot-out, the victim was shot in the back was not enough:

“When a defense of justification is raised, the People must prove beyond a reasonable doubt that [the] defendant’s conduct was not justified. In other words, the People must demonstrate beyond a reasonable doubt that the defendant did not believe deadly force was necessary or that a reasonable person in the same situation would not have perceived that deadly force was necessary” … . In this case, the evidence regarding which man initiated the gunfire was equivocal at best. Valentin, the lone eyewitness, testified that she did not know who fired first. Footage from numerous surveillance cameras, each of which captured only part of the scene, did not answer that question, nor did the ballistic evidence. There was no evidence that defendant approached displaying a firearm. Rather, the evidence strongly suggests that [the victim]  was the first person to do so.

In this case, we do not believe that the mere fact that the victim was shot in the back establishes that defendant was the initial aggressor, or that he did not reasonably believe that deadly physical force was still being used against him at the time he fired the fatal shot. Under the totality of the evidence, the fact that [the victim]  had his back turned to defendant at the moment when he was shot does not establish that he was withdrawing from the gunfight or running away. People v Skeeter, 2023 NY Slip Op 02946, First Dept 6-1-23

Practice Point: When the justification defense is raised, the People must disprove it beyond a reasonable doubt. Here the fact that the victim was shot in the back during a shoot-out was not enough to disprove the defense.

 

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THE EXECUTIVE-ORDER COVID TOLLS APPLY TO THE SPEEDY TRIAL STATUTE, RENDERING THE INDICTMENT OF THE DEFENDANT TIMELY (SECOND DEPT).

The Second Department, reversing County Court, determined the speedy-trial statute was tolled by the COVID executive orders, rendering the prosecution of defendant timely:

Where, as here, a defendant is charged with a felony, the People are required to be ready for trial within six months of the commencement of the criminal action (see CPL 30.30[1][a] …). In response to the COVID-19 pandemic, on December 30, 2020, former Governor Andrew Cuomo issued Executive Order No. 202.87, which provided “Section 30.30 and Section 190.80 of the criminal procedure law are suspended to the extent necessary to toll any time periods contained therein for the period during which the criminal action is proceeding on the basis of a felony complaint through arraignment on the indictment or on a superior court information and thereafter shall not be tolled” … . Successive executive orders extended Executive Order No. 202.87 through May 23, 2021 (see 9 NYCRR 8.202.87-202.106).

Contrary to the determination of the County Court, while it was in effect, Executive Order No. 202.87 constituted a toll of the time within which the People must be ready for trial for the period from the date a felony complaint was filed through the date of a defendant’s arraignment on the indictment, with no requirement that the People establish necessity for a toll in each particular case … . People v Fuentes, 2023 NY Slip Op 02892, Second Dept 5-31-23

Practice Point: The COVID tolls imposed by Executive Order apply to the speedy trial statute, rendering the indictment in this case timely.

 

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WHERE A JURY NOTE DOES NOT UNAMBIGUOUSLY DESCRIBE A REQUESTED EXHIBIT, THE NOTE MUST BE READ OR SHOWN TO THE PARTIES AND THE PARTIES MUST BE ALLOWED INPUT RE: THE PROPER RESPONSE; HERE THE JUDGE DID NOT FOLLOW THAT PROCEDURE AND THE CONVICTIONS WERE REVERSED (FIRST DEPT).

The First Department, reversing defendant’s convictions and ordering a new trial, determined the judge did not follow proper procedure re: notes received from the jury during deliberations:

The court did not follow the procedures set forth in People v O’Rama (78 NY2d 270[1991]) with regard to several jury notes. The record does not reflect that the court read or showed four of the jury’s notes to the parties or afforded them an opportunity to provide input regarding the proper response to the notes. Indeed, the record contains no indication that these four notes, each of which sought trial exhibits, were responded to at all. While “[n]otes that only require the ministerial act of sending exhibits into the jury room do not implicate the requirements of O’Rama” and CPL 310.30 … , notes that do not unambiguously describe the requested exhibits warrant input from counsel and are subject to O’Rama’s requirement of meaningful notice. Here, at least two of the notes that the court did not address fall into this latter category. Because of this mode of proceedings error, a new trial is called for. People v Baptiste, 2023 NY Slip Op 02835, First Dept 5-25-23

Practice Point: Although the judge need not share with the parties a note from the jury which requires only a ministerial act, the judge must share a note which is ambiguous about which exhibits are requested. The failure to share the note requires reversal and a new trial.

 

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EVEN THOUGH THE NUMBER OF POINTS WAS REDUCED BY THE CHANGE IN THE FACTUAL BASIS FOR THE RISK ASSESSMENT FROM “ARMED WITH A DANGEROUS INSTRUMENT” (RECOMMENDED BY THE BOARD) TO “INFLICTED PERSONAL INJURY,” DEFENDANT WAS ENTITLED TO 10 DAYS NOTICE OF THE CHANGE (SECOND DEPT).

The Second Department, reversing Supreme Court in this SORA risk assessment proceeding, determined defendant was not given the required 10-day notice that the People would seek points under a risk factor that differed from the recommendation submitted by the the board. Here the board recommended a 30-point assessment under risk factor 1 for “armed with a dangerous instrument” but the court assessed 15 points for “inflicted personal injury.” The defendant was entitled to notice of that change, even though the number of points was reduced:

Correction Law § 168-n(3) provides that, “[i]f the district attorney seeks a determination that differs from the recommendation submitted by the board, at least ten days prior to the determination proceeding the district attorney shall provide to the court and the sex offender a statement setting forth the determinations sought by the district attorney together with the reasons for seeking such determinations” … , this Court held that the phrase “recommendation submitted by the board” is not limited to just the total points assessed or the recommended sex offender level designation, but “includes the factual predicate for the recommendation” … .

Here, the factual predicate for the Board’s recommendation for the assessment of points under risk factor 1 was the defendant having been “armed with a dangerous instrument,” not that he “inflicted physical injury.” In order to assess points under risk factor 1 based upon infliction of physical injury, the People were required by Correction Law § 168-n(3) to give the defendant the requisite 10-day notice, which they failed to do … . People v Green, 2023 NY Slip Op 02799, Second Dept 5-24-23

Practice Point: If the People seek a SORA risk assessment on a factual basis different from that recommended by the board, defendant is entitled to 10 days notice of the change, even if the change reduces the number of points to be assessed.

 

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THE FACT THAT THE PEOPLE WERE HELPING THE COMPLAINANT PROCURE A U VISA WHICH WOULD ALLOW THE COMPLAINANT TO STAY IN THE US AND APPLY FOR PERMANENT RESIDENCE WAS BRADY MATERIAL WHICH SHOULD HAVE BEEN PROVIDED TO THE DEFENSE; U VISAS ARE AVAILABLE TO ALIENS WHO SUFFER ABUSE FROM CRIMINAL ACTIVITY; CONVICTIONS REVERSED AND INDICTMENTS DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, determined defendants’ convictions should be reversed and the indictments dismissed because the People failed to reveal they were helping the complainant procure a U visa which would allow the complainant to remain in the United States and apply for permanent residence. A U visa is available to an alien who has suffered abuse as a victim of criminal activity. The defendants have already served their sentences and have been deported:

A U visa is available to an alien who “has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity[,] . . . possesses information concerning criminal activity . . . [and] . . . has been helpful, is being helpful, or is likely to be helpful” to a Federal, State, or local law enforcement official, prosecutor, judge, or other authority prosecuting criminal activity … . * * *

To obtain a U visa from the United States Citizenship and Immigration Services, an applicant must first acquire a certification from a Federal, State, or local law enforcement official, prosecutor, judge, or other Federal, State, or local authority investigating criminal activity (see 8 USC § 1184 [p][1]). The certification must confirm that the applicant for a U visa “‘has been helpful, is being helpful, or is likely to be helpful'” in the investigation or prosecution of criminal activity … . Without a certification, the applicant cannot obtain a U visa. Law enforcement is not mandated to issue the certification … .

The U visa is a valuable benefit. Under Section 245(m) of the Act, after three years of continuous presence in the United States (in which the recipient also receives work authorization), the recipient may apply for lawful permanent residence in the United States. * * *

… [W]e cannot know what a jury would have done with further, material, impeachment arising from the U visa evidence. It might have found the U visa evidence fatally undermined [the complainant’s] credibility. We find that there is reasonable probability that had the jury considered the U visa evidence, it would have raised enough reasonable doubt to produce a different outcome. People v Flores, 2023 NY Slip Op 02768, First Dept 5-23-23

Practice Point: The People did not inform the defense they were helping the complainant procure a U visa which would allow the complainant to remain in the US and apply for permanent residence. A U visa is available to an alien who suffered abuse as a victim of criminal activity. The U-visa-information was Brady material which could have affected the outcome of the trial. The convictions were reversed and the indictments dismissed.

 

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THE TRAFFIC STOP WAS VALID, BUT THE POLICE OFFICERS SAW NOTHING TO INDICATE A WEAPON WAS IN THE CAR; THE SEARCH OF THE CAR AND SEIZURE OF A WEAPON FROM AN OPEN PURSE IN THE BACK SEAT WAS ILLEGAL (FIRST DEPT).

The First Department, reversing defendant’s conviction and dismissing the indictment, determined the police properly stopped the car in which defendant was a passenger but did not have sufficient information to justify a search of the vehicle for a weapon. A weapon was seized from an open purse in the back seat:

The police have authority to order occupants out of a vehicle in the event of a traffic violation … . Absent probable cause, the police are allowed to conduct a limited intrusion into the vehicle only if the totality of the information available supports a reasonable conclusion that there is a substantial likelihood of a weapon within the vehicle that poses an actual and specific threat to the officers’ safety … . … [T]he Court of Appeals has described this exception to the probable cause requirement as “narrow” … .

Furtive movements “suggesting that the defendant was reaching for something that might be a weapon” combined with some other suggestive factor have been determined to meet this standard … . * * *

No such actual and specific danger was shown to exist in this case. …  Defendant hesitated only briefly before rolling the window down and complying with the officer’s demands to show his hands and to step out of the vehicle. Taking a few “moments” to comply with an officer’s orders does not rise to the level of furtive or suspicious activity so as to support a finding of an actual and specific danger to officer safety  … He was frisked outside of the vehicle and found not to possess any weapons. Defendant remained in full view of the officers, his demeanor described as “relaxed”; he made eye contact and did not otherwise appear suspicious. People v Scott, 2023 NY Slip Op 02769, First Dept 5-23-23

Practice Point: There is a narrow exception to the probable cause requirement where police officers suspect a weapon may be in the car during a traffic stop. Here the evidence did not suggest the presence of the weapon. The weapon seized from an open purse in the back seat should have been suppressed.

 

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THE JUDGE’S POLICY OF NOT LETTING MEMBERS OF THE PUBLIC INTO THE COURTROOM DURING TESTIMONY HAD THE UNINTENDED EFFECT OF EXCLUDING MEMBERS OF THE PUBLIC FROM PORTIONS OF THE TRIAL; NEW TRIAL ORDERED (CT APP) ​

The Court of Appeals, reversing the appellate division, determined the procedure imposed by the judge effectively prevented members of the murder victim’s family from attending parts of the trial. Although the judge did not mean to exclude members of the public from the trial, the judge’s policy of not letting members of the public into the courtroom during testimony was improperly implemented and had the unintended result of excluding members of the public. The Court of Appeals, over a two-judge concurrence, ordered a new trial:

The trial judge is in charge of the courtroom and is ultimately responsible for ensuring that any limitation on a defendant’s right to a public trial conforms with constitutional dictates. At defendant’s trial, the judge delegated to court officers the implementation of the judge’s general policy of prohibiting the public from entering or exiting the courtroom while a witness testifies. We agree with the Appellate Division that members of the public were excluded from the courtroom at a time when they should have had access under the terms of the extant policy. But, contrary to the Appellate Division’s conclusion, that error directly resulted from the acts of court officials enforcing the trial judge’s order. Therefore, the court violated defendant’s right to a public trial. People v Muhammad, 2023 NY Slip Op 02756, CtApp 5-23-23

Practice Point: Even if the judge did not intend to exclude members of the public from the trial, the judge’s policy of not allowing anyone to enter the courtroom during testimony had that effect. New trial ordered.

 

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THE JUDGE CLOSED THIS MURDER TRIAL TO THE PUBLIC CITING “INTIMIDATION” BY SPECTATORS AND THE POSTING OF A PHOTO OF THE TRIAL ON INSTAGRAM; THE SPARSE RECORD DID NOT SUPPORT CLOSING THE COURTROOM, NEW TRIAL ORDERED (CT APP).

The Court of Appeals, reversing defendant’s conviction and ordering a new trial, determined the record did not support holding the murder trial in a courtroom closed to the public. The judge reacted to spectators deemed “intimidating” and the posting on Instagram of a photo taken in the courtroom with a caption supporting the defendant:

… [T]he People moved to close the courtroom, citing the fact that photographs had been taken in the courtroom and posted on Instagram with the caption “Free Dick Wolf”—which the prosecutor asserted was a reference to one of defendant’s street names. After an off-the-record discussion with counsel, the court noted its concern with the photographs, and added that

“[p]eople in the courtroom have been very intimidating. . . . They intimidated a court reporter already. They stare people down. They’re staring up here. I am closing this courtroom based on the fact that now there are pictures that were taken in this courtroom. And I know that pictures can be taken very [surreptitiously] with a cellphone. You can look like you’re looking at your cellphone when you’re really taking pictures. But clearly pictures were taken in this courtroom by someone who had to have been sitting in this courtroom and pictures were taken outside the court. I’m closing the courtroom.”  * * *

Although the prevention of intimidation by spectators during trial may very well be an “overriding interest” that can support courtroom closure … , it is incumbent on the trial court to ensure that the record adequately justifies its concerns and demonstrates that the identified interest would be jeopardized absent a closure. Where closure is warranted, it must be tailored to address the overriding interest. Here, the court ordered the broadest possible closure, completely excluding all members of the public for the remainder of trial. On this sparse record the closure was disproportionate in relation to the circumstances described. People v Reid, 2023 NY Slip Op 02755, CtApp 5-23-23

Practice Point: Closing the courtroom during a trial is a drastic measure which must be justified on the record. Here the sparse record was deemed insufficient and a new trial was ordered.

 

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IN THESE TWO CASES, INTRUDERS ENTERED AN APARTMENT BUILDING THROUGH EXTERIOR DOORS WHICH, ALLEGEDLY, WERE UNLOCKED AND MURDERED VICTIMS WHO WERE SPECIFICALLY TARGETED; THE FACT THAT THE VICTIMS WERE TARGETED WAS NOT AN “INTERVENING ACT” WHICH RELIEVED THE LANDLORD OF LIABILITY AS A MATTER OF LAW (CT APP).

The Court of Appeals, affirming the Second Department and reversing the First Department, in a full-fledged opinion by Judge Wilson, determined the fact that the murder victims were targeted did not relieve the landlord, here the NYC Housing Authority (NYCHA), of liability for the alleged failure to provide exterior doors with functioning locks:

… [W]hen the issue of proximate cause involves an intervening act, “liability turns on whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence” … . It is “[o]nly where ‘the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct,’ [that it] may possibly ‘break[ ] the causal nexus’ ” … . But “[a]n intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent” … .

Here, the risk created by the nonfunctioning door locks—that intruders would gain access to the building and harm residents—is exactly the “risk that came to fruition” … . It was not the trial court’s role, on summary judgment, to assess the fact-bound question of whether the intruders … would have persevered in their attacks had the doors been securely locked. This is not to say that the sophistication and planning of an attack is irrelevant to the factfinder’s determination of proximate cause, or even that it could never rise to such a degree that it would sever the proximate causal link as a matter of law … . But neither [scenario here] approaches that level. Scurry v New York City Hous. Auth., 2023 NY Slip Op 02752, CtApp 5-23-23

Practice Point: The fact that the victims were specifically targeted by intruders who entered the apartment buildings through doors alleged to have been unlocked did not relieve the landlord of liability under an “intervening act” theory. The requirement that exterior doors be locked addresses the risk at issue in these cases.

 

​ DEFENDANT WAS SENTENCED VIRTUALLY AND DID NOT WAIVE HIS RIGHT TO BE PRESENT; RESENTENCING ORDERED (FIRST DEPT).

The First Department determined defendant was entitled to be resentenced because the sentencing was virtual and defendant did not waive his right to be present:

… [D]efendant is entitled to be resentenced because he had a right to be personally present at his sentencing, and he did not expressly waive that right during the virtual proceeding (see CPL 380.40[1] …). People v Barksdale, 2023 NY Slip Op 02744, First Dept 5-18-23

Practice Point: For a virtual sentencing to be valid, the defendant must waive his right to be present.

 

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