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DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO FILE A SUPPRESSION MOTION; THE FAILURE “INFECTED” THE GUILTY PLEA BECAUSE SUPPRESSION COULD HAVE LED TO DISMISSAL OF SOME OF THE INDICTMENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defense counsel’s failure to make a suppression motion constituted ineffective assistance:

… [W]e conclude that the record establishes that defense counsel could have presented a colorable argument that defendant’s detention was illegal and thus that any evidence obtained as a result thereof should have been suppressed as the fruit of the poisonous tree. One of the officers who initially detained defendant testified at a Huntley/Wade hearing that, prior to defendant’s arrest, one of the victims of a home invasion had described the suspects as two black men in their twenties, one of whom was wearing a hoodie “with some kind of emblem on the front.” About a half-hour later, the officer heard a broadcast of a tip from an unidentified retired police officer. The tip, as testified to at the hearing, reported “two [black] males [in their twenties] inside [a] corner store that possibly looked suspicious” with one that “might” have had “a handgun on his side” and another that was wearing a “teddy bear type hoodie,” which was later described as a hoodie with a teddy bear on the front. Based on that tip, officers responded to the corner store, entered with weapons drawn, and immediately ordered the two men, one of whom was defendant, to raise their hands. The officer testified, however, that the men were not acting suspiciously nor did she observe a weapon when she and her partner entered the store. While handcuffing defendant, the officer for the first time observed a handgun in defendant’s waistband, saw blood on defendant’s hoodie, and obtained statements from defendant. Defendant was thereafter taken for show-up identifications, during which the victims of the prior home invasion identified him as one of the men involved in that incident.

… [I]t cannot be said that a motion seeking suppression on the ground that defendant was unlawfully detained would have had “little or no chance of success” … , and instead those facts demonstrate that defense counsel failed to pursue a “colorable claim[]” that could have led to suppression … . …

… [D]efense counsel prepared such a motion to suppress evidence on that basis, indicated an intent to make that motion, and simply failed to file the motion despite having been twice informed by the court of the need to do so given the People’s refusal to consent to a hearing regarding the legality of the detention without such a motion. …

… [D]efendant’s contention survives his guilty plea inasmuch as the error in failing to seek suppression on that basis infected the plea bargaining process because suppression of the challenged evidence would have resulted in dismissal of at least some of the indictment … . People v Roots, 2022 NY Slip Op 06617, Fourth Dept 11-18-22

Practice Point: Defense counsel was deemed ineffective for failing to file a suppression motion. It worth noting that defense counsel had prepared a motion but failed to file it despite requests by the court and the prosecutor. The failure “infected” the guilty plea because suppression could have resulted in dismissal of some of the indictment.

 

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ALTHOUGH THE ISSUE WAS NOT PRESERVED FOR APPEAL, THE FAILURE TO GIVE THE CIRCUMSTANTIAL-EVIDENCE JURY INSTRUCTION WAS REVERSIBLE ERROR (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of criminal possession of a weapon, determined the evidence was entirely circumstantial requiring that the jury be instructed on the circumstantial-evidence standard of proof. The issued had not been preserved for appeal:

Supreme Court erred in failing to give a circumstantial evidence instruction. The evidence against defendant with respect to his possession of the .22 caliber revolver was entirely circumstantial, and the court’s jury instructions “failed to convey to the jury in substance that it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence” … . Inasmuch as the proof of defendant’s guilt is not overwhelming, the inadequacy of the charge was prejudicial error requiring reversal of those parts of the judgment convicting defendant under counts one and two of the superseding indictment and a new trial with respect thereto, notwithstanding defendant’s failure to request such a charge or to except to the charge as given … . People v Soto, 2022 NY Slip Op 06589, Fourth Dept 11-18-22

Practice Point: Here the failure to give the circumstantial-evidence jury instruction required reversal despite the failure to preserve the issue.

 

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THE SUPPRESSION COURT DID NOT RULE ON DEFENDANT’S ARGUMENT THE INITIAL PURSUIT BY THE POLICE WAS NOT JUSTIFIED; AN APPELLATE COURT CANNOT CONSIDER AN ISSUE NOT RULED UPON; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter for a ruling, determined the appellate court could not consider the suppression argument which was not ruled upon by the motion court. Defendant argued the police did not have reasonable suspicion such that the initial pursuit of the suspect was justified:

At the suppression hearing, the People presented evidence that on the night in question, a police officer was flagged down by an unnamed citizen, who stated that shots had been fired in that area. During that conversation, the officer himself heard a gunshot. He went immediately to the location and observed several people hiding or running into a nearby store. One man took flight, grabbing his waistband with both hands. According to the officer, such a gesture was indicative of a person “holding a very heavy object or a handgun.” That individual was the only person not attempting to hide or seek cover. At that point, the officer began his pursuit, but lost sight of the individual. The officer broadcast a description of the suspect, including specifics of his clothing, over the radio, at which point other officers in the area observed a man fitting that description and pursued him, eventually arresting him at a residence and bringing him to the location of the shooting, where he was identified by two eyewitnesses as the person who had fired the shots. Surveillance video from the store and body camera footage from the officers involved confirms the sequence of events. Following the hearing, the court ruled, inter alia, that there was “more than adequate probable cause.” However, the court did not explain when probable cause existed or rule on whether the officer who initially observed the suspect had reasonable suspicion to pursue him.  People v Anderson, 2022 NY Slip Op 06575, Fourth Dept 11-18-22

Practice Point: If an issue was raised in a suppression motion but was not ruled upon by the suppression court, the appellate court cannot consider the issue. Here the Fourth Department remitted the case for a ruling.

 

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IT IS ONLY PURSUANT TO EXECUTIVE LAW 63(3) THAT THE ATTORNEY GENERAL (AS OPPOSED TO A COUNTY PROSECUTOR) IS EMPOWERED BRING A CRIMINAL PROSECUTION; THE EXECUTIVE LAW ALLOWS REQUESTS FOR AN AG PROSECUTION ONLY FROM THE EXECUTIVE BRANCH, NOT THE JUDICIAL BRANCH; HERE THE CHIEF JUDGE REQUESTED THE PROSECUTION; A WRIT OF PROHIBITION ENJOINING THE PROSECUTION WAS GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, determined the petitioner’s request for a writ of prohibition to enjoin the attorney general (AG) from prosecuting him for alleged criminal offenses should be granted. The request for the prosecution came from a judge. Executive Law 63(3) does not authorize a request for prosecution from the judicial, as opposed to the executive, branch:

This CPLR article 78 proceeding seeking a writ of prohibition raises an issue of apparent first impression: whether the Attorney General may criminally prosecute an individual based on an Executive Law § 63(3) referral from the Chief Administrative Judge of the Unified Court System. Executive Law § 63(3) authorizes the Attorney General of the State of New York, “[u]pon request of the governor, comptroller, secretary of state, commissioner of transportation, superintendent of financial services, commissioner of taxation and finance, commissioner of motor vehicles, or the state inspector general, or the head of any other department, authority, division or agency of the state,” to investigate and prosecute criminality relating to any matter connected with the referring entity. Petitioner, the subject of the criminal prosecution initiated and maintained by the AG based on the purported Executive Law § 63(3) referral by an officer within the Unified Court System, commenced this special proceeding for a writ of prohibition challenging the validity of the referral and the legality of the AG’s authority to prosecute him. We hold that an Executive Law § 63(3) referral can come only from an agency within the executive branch. Therefore, a referral from an officer within the Unified Court System — that is, the judicial branch of government — is not permitted by the statute, and, for the reasons discussed below, we grant prohibition relief to petitioner. Matter of Makhani v Kiesel, 2022 NY Slip Op 06556, First Dept 11-17-22

Practice Point: The attorney general can bring a criminal prosecution only upon request from an executive agency listed in Executive Law 63(3). Here the chief judge made the request. A writ of prohibition enjoining the prosecution was granted.

 

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DEFENDANT, WHO WAS CHARGED WITH STRIKING A SMALL DOG WITH A BROOM HANDLE, WAS NOT ENTITLED TO THE “CHOICE OF EVILS” INSTRUCTION TO THE GRAND JURY; DEFENDANT ARGUED HE STRUCK THE DOG TO PREVENT A “GREATER EVIL,” I.E., AN INFECTION FROM A BITE; THE EVIDENCE DID NOT SUPPORT THE DEFENDANT’S ARGUMENT BECAUSE DEFENDANT TESTIFIED STRIKING THE DOG WAS AN ACCIDENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the defendant was not entitled to a “choice of evils” instruction in the grand jury proceedings. Defendant was charged with criminal mischief under Penal Law § 145.10, aggravated cruelty to animals under Agriculture and Markets Law § 353-a, and Overdriving, Torturing, or Injuring an Animal under Agriculture and Markets Law § 353. During a confrontation with a person, a small dog (Gigi) started biting at defendant’s pant leg and defendant struck the dog with a broom handle. Defendant argued the grand jury should have been instructed on the “choice of evils” defense because he struck the dog to prevent an infection from a dog bite:

Section 35.05 (2) of the Penal Law provides that conduct that would otherwise be criminal may be justifiable when “[s]uch conduct is necessary as an emergency measure to avoid an imminent . . . private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.” * * *

… [D]efendant testified before the grand jury that he was not afraid of Gigi, that he never intended to hurt her, and that he struck her by mistake during his struggle with the uncle and as a reaction to the surrounding circumstances. Thus, by his own account, defendant made no choice at all to strike Gigi, but acted without intending to hit anything or specifically to hurt her. The record, including defendant’s own testimony and the surveillance video, forecloses defendant’s argument that he chose to strike Gigi as an “emergency measure to avoid an imminent . . . private injury” … . Accordingly, the prosecutor was not obligated to instruct the grand jury on the “choice of evils” defense under section 35.05 (2) … . People v Jimenez, 2022 NY Slip Op 06541, CtApp 11-17-22

Practice Point: There is a “choice of evils” defense which allows the argument that the charged act was necessary to prevent a “greater evil.” Here the defendant argued the grand jury should have been so instructed, claiming that he struck the small dog to prevent an infection from a dog bite (the greater evil). However defendant testified he struck the dog by accident, which foreclosed the availability of the defense; no “choice” between evils was made.

 

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THE APPELLATE DIVISION AFFIRMED DEFENDANT’S CONVICTION BY GUILTY PLEA AFTER A FLAWED SPEEDY-TRIAL ANALYSIS OF THE EIGHT-YEAR PRE-INDICTMENT DELAY; THE COURT OF APPEALS REVERSED, EXPLAINED THE FLAWS AND REMITTED THE MATTER FOR A NEW ANALYSIS (CT APP). ​

The Court of Appeals, reversing the appellate division’s affirmance of defendant’s (Johnson’s) conviction by guilty plea and remitting the matter for another analysis, in a full-fledged opinion by Judge Wilson, determined the appellate division did not properly apply the “Taranovich” criteria to the eight-year pre-indictment delay in this rape/sexual abuse case.

In People v Taranovich, we established the following five factors for assessing speedy trial claims: (1) the extent of the delay; (2) the reasons for the delay; (3) the nature of the underlying charge; (4) whether there has been an extended period of pretrial incarceration; and (5) whether there is any indication that the defense has been impaired by reason of the delay … . Although this case concerns pre-indictment delay and is analyzed as a due process claim, we nevertheless apply the test established in Taranovich … . …

The Appellate Division “assume[d], arguendo, that the People failed to establish ‘good cause’ for the ‘protracted’ preindictment delay” … . However, some examination of the reason for the delay is required. Instead of attempting to evaluate the good faith reasons for the various periods of delay, the Appellate Division’s conclusion that the second factor favored Mr. Johnson is based upon an assumption for the sake of argument. …

Turning to the third factor, the “nature” of the underlying crime can refer to both its severity and, relatedly, the complexity and challenges of investigating the crime and gathering evidence to support a prosecution … . … Here, the Appellate Division held that its assumption that the People lacked good cause compelled the result that the “third factor[ ] favors[s] the defendant.” The crime here—the sexual assault of a minor found unresponsive on a city street—is quite serious. The nature of the crime here is directly related to the issues of complexity and may, therefore, account for some of the delay: the victim’s severe intoxication and lack of memory of the assault rendered her unable to identify her attacker. It is not clear on what basis the court concluded that its assumption of lack of good faith led to the conclusion that the third factor favored Mr. Johnson, but that conclusion, apparently based solely on that assumption with no analysis of the relevant concerns, is not supportable. …

In analyzing factor five, the Appellate Division held that because Mr. Johnson pled guilty only to rape in the second degree … , which depends solely on the age difference between the defendant and the victim, “the preindictment delay could not have ‘impaired’ defendant’s ability to defend himself on the charge of which he was convicted” … . This was error. When an indictment contains multiple counts, if delay impacts the defendant’s ability to defend one count, it may weaken that defendant’s position in plea bargaining, potentially adversely impacting the resulting plea … . Thus, the appellate court must consider prejudice measured against all counts pending when the dismissal motion is made, not merely against the crime of conviction. People v Johnson, 2022 NY Slip Op 06537, CtApp 11-17-22

Practice Point: Here the defendant pled guilty after an eight-year pre-indictment delay and the appellate division affirmed. The Court of Appeals reversed, finding the appellate division’s application of the “Taranovich” framework for determining whether a defendant’s constitutional right to a speedy trial has been violated seriously flawed. The Court of Appeals explained the flaws and remitted the matter to the appellate division for another speedy-trial analysis. The Court of Appeals noted that, where a defendant is charged with multiple counts, whether the delay impaired the defense must take into account all the charged counts, not just the count to which defendant pled guilty.

 

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THE SUPERIOR COURT INFORMATION (SCI) DID NOT INCLUDE AN OFFENSE CHARGED IN THE FELONY COMPLAINT OR A LESSER INCLUDED OFFENSE; THE SCI WAS THEREFORE JURISDICTIONALLY DEFECTIVE; THE ERROR NEED NOT BE PRESERVED FOR APPEAL (SECOND DEPT).

​The Second Department, reversing defendant’s conviction and vacating the plea, determined the superior court information (SCI) was jurisdictionally defective because it did not include an offense charged in the felony complaint or a lesser included offense of an offense charged in the felony complaint:

The defendant was charged, by felony complaint, with one count of course of sexual conduct against a child in the first degree under Penal Law § 130.75(1)(b), and one count of endangering the welfare of a child under Penal Law § 260.10(1). He waived indictment by a grand jury and entered a plea of guilty under a superior court information to one count of course of sexual conduct against a child in the second degree under Penal Law § 130.80(1)(a). …

The single count in the superior court information was not an “offense for which the defendant [had been] held for action of a grand jury” (CPL 195.20), in that it was not an offense charged in the felony complaint or a lesser included offense of an offense charged in the felony complaint … . Thus, the superior court information was jurisdictionally defective. This defect survives the defendant’s failure to raise this claim in the Supreme Court, his plea of guilty, and his waiver of the right to appeal … . People v Mendoza, 2022 NY Slip Op 06499, Second Dept 11-16-22

Practice Point: A superior court information (SCI) which does not include an offense charged in the felony complaint or a lesser included offense is jurisdictionally defective and the error need not be preserved for appeal.

 

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BG, AN ADOLESCENT OFFENDER (AO) WITHIN THE MEANING OF THE “RAISE THE AGE ACT,” ASSAULTED A MAN AND THREW HIM ON THE SUBWAY TRACKS; A BYSTANDER JUMPED DOWN TO HELP THE ASSAULT VICTIM; THE BYSTANDER WAS KILLED BY A SUBWAY TRAIN WHICH STOPPED BEFORE REACHING THE ASSAULT VICTIM; THE JUDGE RULED THE MATTER SHOULD BE TRANSFERRED TO FAMILY COURT; THE PEOPLE SOUGHT A WRIT OF PROHIBITION WHICH WAS DENIED (FIRST DEPT).

The First Department denied the People’s request for a writ of prohibition to prevent respondent judge from sending a criminal case involving an adolescent offender (AO) to Family Court pursuant to the “Raise the Age Law.” In criminal matters involving AO’s the Raise the Age Law allows judges to decide whether the matter should heard in Family Court. Here BG, the AO, assaulted the victim  in a subway station and threw the victim on the tracks. A bystander jumped down to try to help the victim. The train was able to stop before reaching the assault victim, but the bystander who tried to help the victim was killed by the train:

Justice Semaj rejected the People’s argument that BG engaged in “heinous” conduct by pushing the surviving victim onto the tracks and leaving him there unconscious, observing that this argument was “rebutted by the video footage offered by the People,” which showed that the surviving victim “was conscious at the time he was pushed on to the tracks and even if he became unconscious once on the tracks, [BG] and another young person are seen going into the tracks and seemingly moving [him], possibly inadvertently, but . . . out of harm’s way.” The court further noted that Hueston [the bystander] chose to jump onto the train tracks, and that BG left after he “was told to leave by [Hueston].” … . * * *

“A writ of prohibition against a judge may be issued only when a court acts or threatens to act without jurisdiction in a matter of which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction” … . “Prohibition cannot be used merely to correct errors of law, however egregious and however unreviewable” … . The Court of Appeals has stressed that, in the context of criminal proceedings, the writ should be issued “only when a court exceeds its jurisdiction or authorized power in such a manner as to implicate the legality of the entire proceeding, as for example, the prosecution of a crime committed beyond the county’s geographic jurisdiction” … . “Although the distinction between legal errors and actions in excess of power is not always easily made, abuses of power may be identified by their impact upon the entire proceeding as distinguished from an error in a proceeding itself” … . Matter of Clark v Boyle, 2022 NY Slip Op 06316, First Dept 11-10-22

Practice Point: Pursuant to the “Raise the Age Law” criminal cases involving adolescent offenders (AO’s) are reviewed by a judge who can chose to have the case heard in Family Court. The AO in this case assaulted a man and threw him onto subway tracks. The man survived but a bystander who tried to help him was killed by the train. The People sought a writ of prohibition to prevent the transfer to Family Court. The First Department laid out the strict criteria for a writ of prohibition and denied it.

 

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A WITNESS WHO WOULD HAVE TESTIFIED THE COMPLAINANT IN THIS SEXUAL ABUSE PROSECUTION HAD OFFERED TO GIVE FALSE TESTIMONY ABOUT THE WITNESS’S BOYFRIEND SHOULD HAVE BEEN ALLOWED TO TESTIFY (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction in this sexual abuse prosecution, determined a witness who would have testified about the complainant’s offer to give false testimony about the witness’s boyfriend should have been allowed to testify:

County Court erred in precluding him from calling a witness who would testify that the complainant offered to make a false allegation of abuse against the witness’s boyfriend. “Questioning concerning prior false allegations of rape or sexual abuse is not always precluded . . . , and the determination whether to allow such questioning rests within the discretion of the trial court” … . Evidence of a complainant’s prior false allegations of rape or sexual abuse is admissible to impeach the complainant’s credibility where a “defendant establishe[s] that the [prior] allegation may have been false[, and] . . . that the particulars of the complaints, the circumstances or manner of the alleged assaults, or the currency of the complaints were such as to suggest a pattern casting substantial doubt on the validity of the charges made by the complainant” … . Here, based on the proffer made at trial, defendant’s proposed witness would have testified that the complainant offered to knowingly make a false allegation against the witness’s boyfriend and that this conduct took place around the same time as the first incident alleged against defendant and just months before the second such incident. Further, per defense counsel’s proffer, the nature and circumstances of the allegations against defendant and the offered allegation against the witness’s boyfriend were sufficiently similar to “suggest a pattern casting substantial doubt on the validity of the charges” … . People v Andrews, 2022 NY Slip Op 06366, Fourth Dept 11-10-22

Practice Point: A witness who would have testified the complainant in this sexual abuse prosecution offered to give false testimony against her boyfriend should have been allowed to testify. Evidence of a complainant’s prior false allegations of sexual abuse can be admissible to impeach the complainant under certain circumstances (present here).

 

UNAUTHORIZED USE OF A VEHICLE THIRD DEGRESS IS A LESSER INCLUSORY COUNT OF GRAND LARCENY FOURTH DEGREE (FOURTH DEPT).

The Fourth Department determined the unauthorized use of a vehicle third degree count should nave been dismissed as a lesser inclusory count of grand larceny fourth degree:

… [T]he part of the judgment convicting defendant of unauthorized use of a vehicle in the third degree must be reversed and count two of the indictment dismissed because that offense is a lesser inclusory concurrent count of count one, grand larceny in the fourth degree … . People v Mitchell, 2022 NY Slip Op 06359, Fourth Dept 11-10-22

Practice Point: Unauthorized use of a vehicle third degree is a lesser inclusory count of grand larceny fourth degree.

 

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