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THE EXPERTS WHO TESTIFIED THE SEIZED SUBSTANCES CONTAINED HEROIN OR COCAINE RELIED ON COMPARISONS WITH STANDARD SAMPLES IN THEIR LABS BUT NO EVIDENCE WAS OFFERED TO DEMONSTRATE THE ACCURACY OF THE SAMPLES; THEREFORE THE EXPERTS’ OPINIONS RELIED ON EVIDENCE NOT IN THE RECORD; CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing the convictions which relied on expert evidence that the seized substances contained cocaine or heroin, determined the experts relied on evidence which was not in the record. Therefore a proper foundation had not been laid for the conclusions that the substances contained cocaine and heroin:

Here, each of the People’s five experts testified to arriving at the conclusion that the substance tested was either heroin or cocaine by comparing the substance with a standard sample in the laboratory that was known to be heroin or cocaine. When questioned about the accuracy of the known standard, the experts testified generally that the sample reference material was obtained from chemical manufacturers. Some of the experts testified that the samples came with certifications, which might have established the sample’s accuracy, but no such certifications were offered into evidence. Some of the experts testified that the sample reference material generally is tested upon arrival at the laboratory, but none of the experts could testify to personal knowledge of the testing of the known standard that she or he used in this case, and the People did not introduce any evidence establishing that such independent testing had occurred. …

Although an expert’s testimony that a substance contains a narcotic drug may be admissible when it is not based solely upon comparative tests using known standards, but is also based on other tests not involving known standards, or other facts in evidence … , here, two of the experts relied solely upon the comparative tests, and their testimony should have been stricken …. Further, while the other three experts testified that before using the comparative tests to confirm the identity of the substance, she or he employed one or more presumptive tests, each of those presumptive tests merely demonstrated the possibility that cocaine or heroin might be present in the substance, but did not confirm the presence of the narcotic drug. It was the comparison to the known standard that enabled each expert to conclude that the substance tested was heroin or cocaine … . People v Ramis, 2023 NY Slip Op 01013, Second Dept 2-22-23

Practice Point: If an expert’s opinion relies on information that is not in the record, a proper foundation for the opinion has not been laid. Here the experts’ opinions that seized substances contained cocaine and heroin were based on comparison with samples in the lab, but no evidence demonstrating the accuracy of the samples was presented.

 

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A RESTITUTION HEARING IS REQUIRED WHEN (1) THE DEFENDANT REQUESTS IT, AND (2) WHEN THE EVIDENCE OF THE AMOUNT IS INSUFFICIENT (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Wooten, clarified when a restitution hearing is required:

Pursuant to Penal Law § 60.27, in sentencing a criminal defendant, the court may require the defendant to pay restitution of the fruits of an offense for which he or she was convicted. Under certain circumstances set forth in the statute, the court must first conduct a hearing to determine the appropriate amount of restitution. However, this Court’s case law has not consistently articulated the circumstances which trigger the need for a restitution hearing in accordance with the statute. Thus, we take this opportunity to clarify that a restitution hearing is required when either (1) the defendant requests such a hearing, or (2) the record does not contain sufficient evidence to establish the appropriate amount of restitution. People v Chung, 2023 NY Slip Op 00880, Second Dept 2-15-23

Practice Point: A restitution hearing is required when a defendant requests it and when the evidence of the amount is insufficient.

 

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THE TRIAL JUDGE DID NOT RULE ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL; THE APPELLATE COURT CANNOT TREAT THE FAILURE TO RULE AS A DENIAL; MATTER REMITTED FOR A RULING (FOURTH DEPT). ​

The Fourth Department, remitting the matter for a ruling, determined the trial judge never ruled on defendant’s motion for a trial order of dismissal:

At the close of the People’s case, defendant moved for a trial order of dismissal, arguing … that the People failed to make a prima facie case with respect to the second count of the indictment. There is no indication in the record that the court ruled on that part of defendant’s motion. We lack the power to review defendant’s contention that the evidence is legally insufficient to support the conviction of burglary in the second degree because, “in accordance with People v Concepcion (17 NY3d 192, 197-198 [2011]) and People v LaFontaine (92 NY2d 470, 474 [1998], rearg denied 93 NY2d 849 [1999]), we cannot deem the court’s failure to rule on the . . . motion as a denial thereof” … . People v Desmond, 2023 NY Slip Op 00791, Fourth Dept 2-10-23

Practice Point: The trial judge’s failure to rule on a motion for a trial order of dismissal is not a denial which an appellate court can consider; here the matter was remitted for a ruling.

 

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EVEN THOUGH DEFENDANT CLAIMED THE STABBING INJURIES WERE ACCIDENTAL, HE WAS ENTITLED TO A JURY INTSTRUCTION ON THE JUSTIFICATION DEFENSE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defendant was entitled to have the jury instructed on the justification defense despite his claim the stabbing injuries were an accident. Defendant alleged the complainant attacked him with a knife and, in self-defense, he grabbed her arm and pinned it behind her back, causing the injuries. The court noted that the trial judge stuck with his opinion the justification defense is not available when it is alleged the injury was accidental or unintentional after he was presented with case law to the contrary:

It has long been settled law that “[a] defendant is entitled to a justification charge if there is some reasonable view of the evidence to support it, even if the defendant alleges that the victim’s injuries were accidentally inflicted” … . That is so because “the defense of justification applies fully to a defendant’s risk-creating conduct, even though it had unintended consequences” … . Here, defendant’s statements during his interview with a police investigator, an audio recording of which was introduced in evidence by the People, indicated that the stabbing injuries sustained by the complainant were the unintended result of defendant’s defensive maneuvers. In particular, defendant asserted that the complainant, while intoxicated, confronted him with a knife and swung it at him, thereby prompting him to act defensively by twisting the complainant’s arm behind her back with the knife still in her hand and pinning it against her. Contrary to the court’s determination, defendant’s statements “do[ ] not defeat his entitlement to a justification charge” … . People v Rayford, 2023 NY Slip Op 00786, Fourth Dept 2-10-23

Practice Point: A defendant’s claim that the injuries were accidentally or unintentionally inflicted does not necessarily preclude a jury instruction on the justification defense.

 

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THE RECORDED CONVERSATION BETWEEN THE 15-YEAR-OLD DEFENDANT AND HIS FATHER IN THE POLICE INTERVIEW ROOM IS PROTECTED BY PARENT-CHILD PRIVILEGE AND SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder convictions, determined the recorded conversation between the 15-year-old defendant and his father in the interview room at the police station was protected by parent-child privilege and should have been suppressed. The defendant had requested a lawyer and the police had left the interview room at the time the conversation was recorded:

We conclude that a parent-child privilege did arise under the circumstances of this case … . The application of the privilege is not dependent on a finding of police misconduct … . … [W]e recognize, as other courts have, that a young defendant will naturally look to a parent “as a primary source of help and advice” …  The statements defendant now seeks to suppress were made in an attempt to utilize his father as such a source of assistance. “It would not be consistent with basic fairness to exact as a price for that assistance, his acquiescence to the overhearing presence of government agents” … . People v Kemp, 2023 NY Slip Op 00776, Fourth Dept 2-10-23

Practice Point: Here the Fourth Department recognized a parent-child privilege and suppressed a recorded conversation between the 15-year-old defendant and his father which took place in the police interview room. The defendant had just requested a lawyer and the police had left the room. But the recording equipment was still operating.

 

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THE MAJORITY CONCLUDED THAT EVEN IF DEFENDANT WAS ILLEGALLY FRISKED AND DETAINED OUTSIDE OF HIS VEHICLE, THE DEPUTY’S SEEING COCAINE ON THE DRIVER’S SEAT PROVIDED PROBABLE CAUSE FOR THE SEARCH OF THE VEHICLE; THE TWO-JUSTICE DISSENT ARGUED THE OBSERVATION OF THE DRUGS WAS A PRODUCT OF THE ILLEGAL FRISK AND DETENTION OF THE DEFENDANT (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined the motion to suppress evidence seized from a vehicle was properly denied. After observing what appeared to be a drug transaction the defective called for assistance. As one of the deputies approached defendant’s vehicle, defendant got out and walked toward the deputy. The deputy frisked the defendant, found nothing and told defendant to wait behind his vehicle. The deputy then walked to defendant’s vehicle where he saw a rolled up dollar bill and white powder on the driver’s seat. The dissent argued the deputy did not have reasonable suspicion of a crime when defendant was frisked and his observation of the drugs in the car was a product of the illegal detention of defendant:

The court properly determined that, based on the totality of the observations by the detective, which he communicated with the deputy … , the deputy had a reasonable suspicion that defendant was involved in a drug transaction … . In any event, “the seizure of [the items inside the vehicle] was not the result of the allegedly illegal detention of defendant, who was outside the parked vehicle when the police officer approached and detained him” … . Even if the deputy had not detained defendant, he could have simply walked up to the vehicle, looked in the window, and observed the drugs in plain view on the driver’s seat. Contrary to defendant’s further contention, the deputy’s observations of the rolled-up dollar bill and white powdery substance provided probable cause to arrest defendant for possession of drugs … . People v Messano, 2023 NY Slip Op 00769, Fourth Dept 2-10-23

Practice Point: Here the defendant was frisked and detained as he walked toward the deputy from his car. The deputy then looked inside defendant’s car a saw drugs. The majority held that even if defendant was illegally detained outside the car, the deputy’s observation of the drugs justified the search. The two-justice dissent argued the observation of the drugs was the product of the illegal detention.

 

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DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO INVESTIGATE THE ROBBERY VICTIM’S STATEMENT THAT DEFENDANT WAS NOT ONE OF THE PERPETRATORS; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defendant did not receive effective assistance counsel in that counsel did not investigate the robbery victim’s statement which indicated defendant was not one of the perpetrators:

… [T]he second victim’s hearing testimony that defendant was not present during the shooting is consistent with his initial statement to law enforcement, and it is also “wholly consistent with the theory pursued by [defense] counsel [at trial], namely that defendant was not present at the shooting and that the crime was instead committed by [different] individual[s]”… . Additionally, although the motion court chose to … discredit the second victim’s testimony, with respect to whether the second victim ever named for him the two individuals that the second victim believed carried out the attempted robbery, there is no evidence in the hearing record contrary to the second victim’s testimony that he would have named those individuals at trial had he been called … .

… [T]he hearing record discloses no tactical reason for defense counsel’s failure to interview the second victim … . Inasmuch as defendant established that defense counsel “did not fully investigate the case and did not collect the type of information that a lawyer would need in order to determine the best course of action” … , we conclude that defense counsel’s deficient conduct was “sufficiently egregious and prejudicial as to compromise [the] right to a fair trial” … . People v Everson, 2023 NY Slip Op 00761, Fourth Dept 2-10-23

Practice Point: Although defense counsel may have made an appropriate strategic decision re: whether to call the robbery victim as a witness, counsel was ineffective in failing to investigate the victim’s statement that defendant was not one of the perpetrators.

 

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THE JUDGE FAILED TO INQUIRE FURTHER DURING THE PLEA ALLOCUTION WHEN DEFENDANT SAID HE DID NOT VIOLATE THE ORDER OF PROTECTION INTENTIONALLY; THERE IS NO NEED TO PRESERVE A DEFECTIVE-ALLOCUTION ERROR; CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of an aggravated family offense by guilty plea, determined the judge should have inquired further when defendant stated he did not intend to violate the order of protection when he sent a letter to the protected person. A defective allocution will be considered on appeal in the absence of preservation:

… [A]fter acknowledging his awareness of the valid and effective order of protection directing him to have no contact with the protected person, defendant stated that he “didn’t intentionally violate” the order of protection by sending the protected person a letter and instead asserted that any violation “was unintentional.” Following an off-the-record discussion between defendant and defense counsel, defendant admitted that sending the letter did, in fact, violate the order of protection, but the court did not inquire, and defendant never clarified, whether his conscious objective was to disobey the order of protection … . Contrary to the People’s assertion, which “conflates the culpable mental states for acts done ‘intentionally’ … and those done ‘knowingly’ … , this is not a case in which defendant’s “further statements removed any doubt regarding th[e requisite] intent” … . People v Vanwuyckhuyse, 2023 NY Slip Op 00754, Fourth Dept 2-10-23

Practice Point: The defendant said he did not intend to violate the order of protection during the plea allocution and the judge did not make the required inquiry. An allocution error need not be preserved for appeal by moving to withdraw the plea. The conviction was reversed.

 

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HERE IT WAS REVERSIBLE ERROR TO PLACE THE DEFENDANT IN HANDCUFFS, WITHOUT EXPLANATION, BEFORE THE JURY RETURNED TO ANNOUNCE THE VERDICT; AT THAT POINT THE DEFENDANT IS CONSIDERED INNOCENT AND RESTRAINING THE DEFENDANT WITHOUT EXPLANATION IS CONSTITUTIONALLY PROHIBITED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the defendant should not have been handcuffed when the jury returned to announce the verdict: At that point the defendant is considered innocent and the defendant may be prejudiced if the jury is polled. Here defense counsel expressly objected to the handcuffs on those grounds:

… [T]he reading of the verdict is an integral part of the guilt-determination phase. … “[A] verdict reported by the jury is not final unless properly recorded and accepted by the court” … . Indeed, in accordance with CPL 310.80, the trial court must order the jury to resume deliberations when polling elicits a negative answer from one or more jurors. As a consequence, until the jury returns to the courtroom, publicly announces the verdict and, if polled, confirms the verdict, there is no finding of guilt, defendant is still presumed innocent, and the constitutional prohibition on restraining a defendant without explanation remains in full force. People v Sanders, 2023 NY Slip Op 00692, CtApp 2-9-23

Practice Point: Restraining a defendant during the guilt-determination phase of the trial in unconstitutional unless adequately explained. A defendant is considered innocent until the verdict is announced and the jury is polled. In this case it was deemed reversible error to place the defendant in handcuffs, without explanation, over defense counsel’s objection, before the jury returned with the verdict.

 

 

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THE ATTORNEY GENERAL’S OFFICE WAS MONITORING A WIRETAP WHEN DEFENDANT WAS OVERHEARD IN A CALL WHICH HAD ORIGINATED FROM THE COUNTY JAIL; LOCAL POLICE WERE ALERTED TO THE CONVERSATION AND THE POLICE OBTAINED THE RECORDING FROM THE JAIL; ALTHOUGH THE JAIL RECORDING WAS NOT AN “INTERCEPTED CONVERSATION” WITHIN THE MEANING OF CPL 700.70, IT WAS EVIDENCE DERIVED FROM AN “INTERCEPTED CONVERSTION” TRIGGERING THE CPL 700.70 NOTICE REQUIREMENTS (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the appellate division, determined the failure to provide defendant with notice of a recorded phone conversation was improper. The Attorney General’s office was monitoring a wiretap in an unrelated case when defendant was overheard in a call originating from the county jail talking about a fatal hit-and-run accident. Local police were informed of the defendant’s conversation and they obtained a recording of it made by the county jail. The jail recording, which was introduced at trial, was not an “intercepted conversation” within the meaning of Criminal Procedure Law 700.70. But the conversation overheard pursuant to the wiretap which alerted the police to the jail conversation was an “intercepted conversation” which triggered the CPL 700.70 notice:

The People produced the recording … to defendant in discovery but did not furnish defendant with a copy of the wiretap warrant and underlying application within the fifteen-day period prescribed by CPL 700.70. Several months after defendant was arraigned, the People informed defendant by letter that the police were “alerted” to the call by the wiretap. Defendant moved to preclude the call from evidence on the grounds that the People failed to adhere to the CPL 700.70 notice procedure. * * *

The substance of the wiretap recording informed law enforcement that the same conversation had been recorded by [jail], leading the Syracuse Police directly to the recording that the People used as evidence at defendant’s trial. In listening to the wiretap, a detective heard incriminating statements about the hit-and-run, identified defendant as the declarant, and directed authorities to the [jail] recording. Clearly, the [jail] call is evidence derived from the wiretap. … [I]t is not certain that police investigating the hit-and-run would otherwise have discovered the call—indeed, the inmate who placed the call had no apparent connection to the hit-and-run incident. Because the wiretap was an “intercepted communication,” the People’s failure to timely furnish defendant with a copy of the eavesdropping warrant and underlying application precluded the admission of the wiretap recording and any evidence derived therefrom—namely, the jail recording—into evidence at trial … . People v Myers, 2023 NY Slip Op 00691, CtApp 2-9-23

Practice Point: Recorded jail conversations are not considered “intercepted conversations” triggering the notice requirements of CPL 700.70. But here the police were alerted to the jail conversation by monitoring a wiretap in an unrelated case. Therefore the jail’s recording of the conversation was evidence derived from an “intercepted conversation” triggering the CPL 700.70 notice requirements.

 

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