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THE DEFENDANT TESTIFED THE VICTIM WAS ON TOP OF HIM REPEATEDLY STRIKING HIM IN THE HEAD WHEN HE PULLED OUT HIS FIREARM AND SHOT THE VICTIM; EVEN IF DEFENDANT’S VERSION WAS DEEMED UNLIKELY, THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder conviction and ordering a new trial, determined defendant was entitled to a jury instruction on the justification defense. Defendant testified he was on the ground with the victim on top of him, repeatedly striking him in the head, when he drew his weapon and shot the victim:

“Even if [the … victim] had not already employed deadly physical force against . . . defendant at the time . . . defendant allegedly used deadly physical force against [the … victim], the question remains whether . . . defendant could reasonably have believed that the use of such force against him was imminent” … . The … victim was not armed, but defendant testified that he knew that the … victim owned at least one gun and that, at the time of the shooting, he did not know whether the … victim was armed. Further, defendant’s testimony that the … victim pinned him down and was repeatedly punching his face and head could support a finding that defendant reasonably believed that such conduct presented an imminent threat of deadly force inasmuch as “[t]he natural and probable consequences of repeatedly striking a man while he is on the ground defenseless is that he will sustain a serious physical injury within the meaning of Penal Law § 10.00 (10)” … . Although defendant’s version of the incident may be “dubious, a trial court is required to give the justification charge even where the defendant’s version of events is ‘extraordinarily unlikely’ ” … . People v Swanton, 2023 NY Slip Op 02433, Fourth Dept 5-5-23

Practice Point: Here defendant testified he was on the ground with the victim on top of him, repeatedly striking him in the head, when he pulled out his firearm and shot the victim. Even though the victim was not using deadly force, and even if the defendant’s version of events was deemed unlikely, defendant was entitled to a jury instruction on the justification defense; new trial ordered.

 

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ONE OF THE GRAND JURORS HAD A FELONY CONVICTION RENDERING THE GRAND JURY ILLEGALLY CONSTITUTED; THE INDICTMENT SHOULD HAVE BEEN DISMISSED; WHETHER THE DEFENDANT WAS PREJUDICED WAS IRRELEVANT (FOURTH DEPT). ​

The Fourth Department, reversing County Court, determined the grand jury was illegally constituted because one of the jurors had a felony conviction. The indictment should have been dismissed without considering whether defendant was prejudiced:

CPL 210.20 (1) (c) authorizes a court to dismiss an indictment on the ground that “[t]he grand jury proceeding was defective, within the meaning of [CPL] 210.35.” As relevant here, CPL 210.35 provides that “[a] grand jury proceeding is defective . . . when . . . [t]he grand jury was illegally constituted” … . A grand jury is illegally constituted when … one of its members is not qualified to serve as a juror pursuant to the Judiciary Law … . Here, it is undisputed that the grand jury was illegally constituted because one of the grand jurors had been convicted of a felony, rendering him unqualified to serve as a grand juror (see Judiciary Law §§ 501, 510 [3]).

Despite the illegally constituted grand jury, the court nonetheless determined that dismissal of the indictment was unwarranted inasmuch as the alleged defect did not result in any prejudice to defendant. We conclude that it was error for the court to require a showing of prejudice before dismissing the indictment for a violation of CPL 210.35 (1). The Court of Appeals has held that “[t]he clear intention of [the drafters of CPL 210.35] was to establish a rule of automatic dismissal [of an indictment] for a limited number of improprieties that were deemed most serious”—including, inter alia, “the specific defect[] delineated in” CPL 210.35 (1) … . With respect to those most serious improprieties, “judicial inquiries into prejudice to the accused or other forms of actual harm are wholly out of place” … . Any consideration of prejudice is limited to defects alleged in connection with the catchall provision of CPL 210.35 (5) … . Here … there is no dispute that the grand jury proceedings were defective under CPL 210.35 (1) due to the presence of the unqualified grand juror, and therefore the court should have automatically dismissed the indictment without requiring any showing of prejudice by defendant … . People v Ashley, 2023 NY Slip Op 02432, Fourth Dept 5-5-23

Practice Point: If one member of a grand jury has a felony conviction, the grand jury is illegally constituted requiring automatic dismissal of the indictment. Whether the defendant was prejudiced is irrelevant.

 

HERE THE NEW STATUTE REQUIRING THE PEOPLE TO FILE AND SERVE A CERTIFICATE OF COMPLIANCE WITH DISCOVERY OBLIGATIONS WENT INTO EFFECT AFTER THE PEOPLE HAD ANNOUNCED READINESS FOR TRIAL; THE STATUTE RETURNED THE PEOPLE TO A STATE OF UNREADINESS; DEFENDANT’S MOTION TO DISMISS ON SPEEDY-TRIAL GROUNDS SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined defendant’s motion to dismiss the indictment on speedy trial grounds should have been granted. A new law went into effect during the course of the prosecution requiring the People to serve and file a certificate of compliance with discovery obligations (CPL 245.50(3)). Although the People had already announced they were ready for trial, the statute returned them to a state of unreadiness:

… “[T]he procedures outlined in CPL article 245 became applicable to [pending] action[s] as soon as that article became effective” … . * * *

… [W]ith respect to the effect of CPL 245.50 (3) on pending prosecutions in which the People had previously announced readiness for trial, we agree with the courts that have concluded that the People “were placed in a state of nonreadiness on January 1, 2020, the effective date of CPL article 245, as a matter of law, [where] no [certificate of compliance] had been filed as of that date” … . People v King, 2023 NY Slip Op 02409, Fourth Dept 5-5-23

Practice Point: CPL 245.50(3) went into effect during this prosecution after the People had announced readiness for trial. The statute returned the People to a state of unreadiness. The defendant was entitled to dismissal of the indictment.

 

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THE DEPRAVED INDIFFERENCE MURDER JURY INSTRUCTION DID NOT PROPERLY EXPLAIN THAT DEPRAVED INDIFFERENCE IS THE DEFENDANT’S MENTAL STATE AT THE TIME OF THE CRIME, NOT THE OBJECTIVE CIRCUMSTANCES UNDER WHICH THE HOMICIDE OCCURRED; APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ISSUE; WRIT OF CORAM NOBIS GRANTED AND NEW TRIAL ORDERED (THIRD DEPT).

The Third Department (1) granted the writ of coram nobis based upon appellate counsel’s failure to raise the issue, and (2) ordered a new trial on the second degree murder charge because the jury instruction on depraved indifference was defective. Although the issue was not preserved, the Third Department considered it in the interest of justice:

Defendant asserts that County Court’s instructions to the jury regarding depraved indifference murder were consistent with the overruled objective standard set forth in People v Register (60 NY2d 270 [1983] …), and therefore the court’s instructions failed to explain the requisite culpable mental state as required by People v Feingold (7 NY3d 288 [2006]). We agree. In discharging its duty to deliver a charge to the jury, “[a] court must instruct the jury regarding both the ‘fundamental legal principles applicable to criminal cases in general’ and those ‘material legal principles applicable to the particular case’ ” (… CPL 300.10 [1], [2]). At the time of defendant’s trial, the Court of Appeals had already held that “depraved indifference to human life is a culpable mental state” … . As a result, “under Feingold, it is not the circumstances under which the homicide occurred that determines whether [a] defendant is guilty of depraved indifference murder, but rather [the] defendant’s mental state at the time the crime occurred” … .

Upon our review of the record, which reflects that County Court had twice instructed the jury with the overruled objective standard, “the jury charge did not unambiguously state that depraved indifference was the culpable mental state for the crime with which defendant was charged, [and therefore] we cannot conclude that the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at a decision” … . People v Weaver, 2023 NY Slip Op 02352, Third Dept 5-4-23

Practice Point: The depraved indifference jury instruction was similar to the overruled objective standard requiring a new trial. Depraved indifference is the defendant’s mental state at the time of the crime, not the circumstances of the commission of the homicide.

Practice Point: Although the issue was not preserved, appellate counsel was ineffective for failing to raise it on appeal. Here the writ of coram nobis was granted, the conviction reversed and a new trial ordered.

 

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PAROLEES DO NOT SURRENDER THEIR CONSTITUTIONAL RIGHTS AGAINST UNREASONABLE SEARCHES AND SEIZURES; HERE THE SEARCH BY PAROLE OFFICERS WAS BASED UPON A TIP FROM DEFENDANT’S MOTHER; THE SEARCH WAS DEEMED SUBSTANTIALLY RELATED TO THE PAROLE OFFICERS’ DUTIES; THERE WAS A DISSENT (THIRD DEPT).

The Third Department, over a comprehensive dissent, determined the parole officers’ search of defendant-parolee’s residence based upon a tip from his mother was proper. Mother, with whom defendant resided, said she saw a picture of defendant with a gun. In the search extended magazines and gun parts were found in defendant’s bedroom:

The general rules and conditions of release typically require a parolee to submit to a warrantless search by his or her parole officer … . The record evinces that defendant executed such a document. However, “a parolee does not surrender his or her constitutional rights against unreasonable searches and seizures, [and] what may be unreasonable with respect to an individual who is not on parole may be reasonable with respect to one who is. Accordingly, a search of a parolee undertaken by a parole officer is constitutional if the conduct of the parole officer was rationally and reasonably related to the performance of the parole officer’s duty and was substantially related to the performance of duty in the particular circumstances” … .

* * * Since the information concerning defendant’s possible violation of his parole conditions came from his mother, there existed a legitimate reason for the search undertaken and it was substantially related to the performance of the parole officer’s duties … . People v Spirito, 2023 NY Slip Op 02353, Third Dept 5-4-23

Practice Point: Parolees do not give up the right to contest an unreasonable search. Here the search was prompted by a tip from defendant’s mother and was deemed substantially related to the parole officers’ duties. There was a comprehensive dissent.

 

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THE DEFENSE REQUEST FOR THE CIRCUMSTANTIAL-EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the defense request for the circumstantial-evidence jury instruction should have been granted;

The court should have granted defendant’s request for a circumstantial evidence charge. There was no direct evidence establishing defendant’s participation in the conspiracy … , and the People do not argue otherwise. The court’s standard instructions on reasonable doubt and inferences to be drawn from evidence did not suffice, because they did not make the jury aware of its duty to apply the circumstantial evidence standard to the People’s entire case and exclude beyond a reasonable doubt every reasonable hypothesis of innocence … . The error was not harmless, because the circumstantial evidence of defendant’s involvement in the conspiracy was not overwhelming.

However, because the verdict was based on legally sufficient evidence and was not against the weight of the evidence, there is no basis for dismissal of the indictment. People v Garcia, 2023 NY Slip Op 02392, First Dept 5-4-23

Practice Point: The judge’s jury instruction did not make it clear the circumstantial evidence standard applied to the entire case. New trial ordered.

 

THE INDICTMENT DID NOT GIVE ADEQUATE NOTICE OF THE PARTICULAR CRIME WITH WHICH DEFENDANT WAS CHARGED (FIRST DEPT).

The First Department, reversing Supreme Court and dismissing the indictment, determined the indictment did not give sufficient notice of the particular crime with which defendant was charged:

The indictment was jurisdictionally defective because it failed to charge defendant with committing a particular crime … . The indictment purported to charge defendant with persistent sexual abuse, a statute that elevates the repeated commission of any of three separately codified misdemeanors to a felony … , but it failed to “specify which of the three discrete qualifying offenses defendant was alleged to have committed” … . Hardware [200 AD3d 431] is dispositive of this appeal … . . In Hardware the indictment alleged that defendant had “subjected an individual to . . . sexual contact.” We held that this allegation was inadequate because ‘sexual contact’ is an element of all three of the qualifying offenses. Therefore, the indictment did not give defendant notice “with sufficient precision to clearly apprise the defendant . . . of the conduct which is the subject of the accusation” (CPL 200.50[7][a] …). The only additional allegation in the indictment in this case is that defendant acted “without the [victim’s] consent.” That allegation similarly failed to specify the underlying crime, because the absence of consent is also an element shared by all three of the qualifying offenses. People v Lacy, 2023 NY Slip Op 02394, First Dept 5-4-23

Practice Point: If it is not clear from the indictment exactly which of several possible crimes is charged, it must be dismissed.

 

THE ORDER SUSPENDING THE SPEEDY TRIAL STATUTE DURING COVID APPLIED HERE; DEFENDANT’S SPEEDY-TRIAL MOTION TO DISMISS THE INDICTMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing County Court, determined the Executive Order suspending Criminal Procedure Law 30.30 (speedy trial) during the COVID pandemic was applicable and defendant’s motion to dismiss the indictment for violation of the speedy trial statute should not have been granted:

Executive Order 202.87, while it was in effect, 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 in each particular case. We find that the phrase “to the extent necessary” modifies “suspended” and not “toll,” as it “explains how sections 303.30 and 190.80 are suspended—not in their entirety but ‘to the extent necessary'” … . Therefore, “Executive Order 202.87 does not require a showing of necessity to toll time periods because it does not explicitly condition the tolling on necessity” … . Moreover, as the People contend, CPL 30.30(4)(g) permits the exclusion of “periods of delay occasioned by exceptional circumstances.” Finding that a showing of necessity is required for the exclusion of time under Executive Order 202.87 would render that Executive Order superfluous and unnecessary. People v Taback, 2023 NY Slip Op 02334, Second Dept 5-3-23

Practice Point: The People do not have to show “necessity” to take advantage of the order suspending the speedy trial statute during COVID.

 

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THE EVIDENCE SUPPORTED HARASSMENT AS A FAMILY OFFENSE BUT DID NOT SUPPORT AGGRAVATED HARASSMENT OR DISORDERLY CONDUCT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Family Court in this family offense proceeding, determined harassment was supported by the evidence but disorderly conduct and aggravated harassment were not:

The undisputed evidence at the fact-finding hearing established that the parties had dated more than a decade earlier and that, after petitioner terminated the relationship, respondent continued to contact her, prompting petitioner to obtain at least two orders of protection against him. After years of not seeing each other, respondent went to petitioner’s house uninvited on October 28, 2021 and rang the doorbell. When petitioner answered the door, respondent said that she owed him a conversation. Petitioner responded that she did not want to talk to him and repeatedly asked him to leave. Respondent refused to leave, prompting petitioner to call the police. Respondent eventually left before the police arrived. Approximately six weeks later, respondent again went to petitioner’s house uninvited and demanded to speak to her. Petitioner asked him to leave at least a dozen times, but respondent ignored those requests and entered her garage where she was standing. The police arrived shortly thereafter and took respondent into custody, charging him with trespass.

In our view, Family Court properly determined that respondent committed the family offense of harassment in the second degree by engaging in a course of conduct or repeatedly committing acts that alarmed or seriously annoyed petitioner while having the intent to harass, annoy or alarm petitioner (see Penal Law § 240.26 [3] … ). We agree with respondent, however, that petitioner failed to meet her burden of establishing by a fair preponderance of the evidence that respondent committed the family offenses of disorderly conduct (§ 240.20) or aggravated harassment in the second degree (§ 240.30 [1]). Matter of Ohler v Bartkovich, 2023 NY Slip Op 02256, Fourth Dept 4-29-23

Practice Point: Here the facts supported harassment as a family offense but did not support aggravated harassment or disorderly conduct.

 

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DEFENDANT’S “PROMOTING A SEXUAL PERFORMANCE BY A CHILD” CONVICTION WAS REVERSED ON THE LAW; THE DEFENDANT CANNOT BE CLASSIFIED AS A “SEX OFFENDER” (FOURTH DEPT).

The Fourth Department noted that if the underlying conviction has been reversed and the indictment dismissed it can no longer be the basis for classifying the defendant as a “sex offender:”

While this appeal was pending, this Court reversed the judgment convicting defendant of eight counts of promoting a sexual performance by a child as a sexually motivated felony (Penal Law §§ 130.91, 263.15) on the law and dismissed the indictment … .

A “sex offender” includes a person who is convicted of an offense described in Correction Law § 168-a (2) or (3). However “[a]ny [such] conviction set aside pursuant to law is not a conviction” for purposes of the statute (§ 168-a [1]; see § 168-d [1] [a]). Inasmuch as defendant’s judgment of conviction has been “set aside pursuant to law” (§ 168-a [1]) by reversal of this Court …, defendant does not qualify as a “sex offender” within the meaning of SORA, and the risk level determination must be vacated … . People v Congdon, 2023 NY Slip Op 02228, Fourth Dept 4-28-23

Practice Point: Where a sexual-offense conviction has been reversed on the law and the indictment dismissed, the defendant cannot be classified as a “sex offender.”

 

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