You are here: / Criminal Law

THE SENTENCE FOR WEAPON-POSSESSION SHOULD BE CONCURRENT WITH THE SENTENCES FOR THE SHOOTING-RELATED CONVICTIONS (SECOND DEPT).

The Second Department determined the sentence for weapon-possession should be concurrent with the sentences for the shooting-related convictions:

… [T]he sentence imposed on the conviction of criminal possession of a weapon in the second degree should not run consecutively to the concurrent sentences imposed on the convictions of manslaughter in the first degree and attempted murder in the second degree. The evidence adduced at trial failed to establish that the defendant’s “possession of a gun was separate and distinct from his shooting [at the two victims, resulting in the death of one of them]” … .People v Burgess, 2022 NY Slip Op 02814, Second Dept 4-27-22

Practice Point: Unless the possession of a weapon charge is somehow distinct and separate from the possession of the weapon used in the shooting, the sentences for possession of a weapon and the shooting-related convictions should be concurrent.

 

, , ,

THE MAJORITY CONCLUDED (1) THE RECORD SUPPORTED THE FINDING THAT DEFENDANT DID NOT MAKE AN UNEQUIVOCAL REQUEST FOR COUNSEL, AND (2) WHETHER A REQUEST FOR COUNSEL IS UNEQUIVOCAL IS A MIXED QUESTION OF LAW AND FACT WHICH IS NOT REVIEWABLE BY THE COURT OF APPEALS (CT APP). ​

The Court of Appeals, over a two-judge extensive dissenting opinion, determined (1) the record supported the finding that the defendant’s request for counsel was not unequivocal and (2) whether the request was unequivocal presents a mixed question of law and fact which is not reviewable by the Court of Appeals:

Once a defendant in custody unequivocally requests the assistance of counsel, the right to counsel may not be waived outside the presence of counsel … . But “[a] suggestion that counsel might be desired; a notification that counsel exists; or a query as to whether counsel ought to be obtained will not suffice” to unequivocally invoke the indelible right to counsel … . Furthermore, “[w]hether a particular request is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant’s demeanor, manner of expression and the particular words found to have been used by the defendant” … .

Here, there is support in the record for the lower courts’ determination that defendant—whose inquiries and demeanor suggested a conditional interest in speaking with an attorney only if it would not otherwise delay his clearly-expressed wish to speak to the police—did not unequivocally invoke his right to counsel while in custody. That mixed question of law and fact is therefore beyond further review by this Court … .

From the dissent:

Here, Mr. Dawson [defendant] unequivocally invoked his right to counsel — the record supports no other conclusion. As is clear from the quoted portion of the colloquy with the detective, he twice said he wanted to call his lawyer, and the detective twice expressly stated that he understood Mr. Dawson had asked to call counsel and therefore the detective could no longer speak to Mr. Dawson. Additionally, the detective then told Mr. Dawson to wait while the detective retrieved Mr. Dawson’s phone so he could call counsel. People v Dawson, 2022 NY Slip Op 02772, CtApp 4-26-22

​Practice Point: Whether a defendant’s request for counsel in “unequivocal,” thereby requiring police interrogation to cease, is a mixed question of law and fact. As long as there is support in the record for the lower court’s finding the request was not unequivocal, the issue cannot be reviewed by the Court of Appeals.

 

, ,

THE DNA EVIDENCE GENERATED BY THE TRUEALLELE CASEWORK SYSTEM WAS PROPERLY ADMITTED IN EVIDENCE; THE DEFENSE WAS NOT ENTITLED TO THE TRUEALLELE SOFTWARE CODE EITHER IN CONNECTION WITH THE FRYE HEARING OR TO CONFRONT THE WITNESSES AGAINST DEFENDANT; THE CONCURRENCE STATED WHETHER THE CODE WOULD BE AVAILABLE TO THE DEFENSE UNDER A PROTECTIVE ORDER REMAINED AN OPEN QUESTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a three-judge concurring opinion, determined that the trial judge, after a Frye hearing, properly admitted DNA evidence generated by the TrueAllele Casework System. The arguments that the defense was entitled to the TrueAllele software source code in connection with the Frye hearing and in order to confront the witnesses against the defendant were rejected. The concurrence stated that  it remains an open question whether a protective order could be used to supply the defense with the source code:

This appeal primarily concerns the admissibility of DNA mixture interpretation evidence generated by the TrueAllele Casework System. We conclude that Supreme Court did not abuse its discretion in finding, following a Frye hearing, that TrueAllele’s use of the continuous probabilistic genotyping approach to generate a statistical likelihood ratio—including the use of peak data below the stochastic threshold—of a DNA genotype is generally accepted in the relevant scientific community. We also hold that there was no error in the court’s denial of defendant’s request for discovery of the TrueAllele software source code in connection with the Frye hearing or for the purpose of his Sixth Amendment right to confront the witness against him at trial.

From the concurring opinion:

Although the prosecutor failed to establish that, at the time of the Frye hearing, TrueAllele’s methodology was properly validated by disinterested parties with access to the source code, and defendant was denied an opportunity to review the source code because of the developer’s proprietary claims, the error, considered alone or with the other alleged constitutional error, was harmless on the facts of this case.

Even though the majority rejects defendant’s claim to the source code on the facts of this case, it remains an open question in this Court whether a defendant should be granted access to a proprietary source code under a protective order. This familiar method of ensuring a defendant’s right to present a defense would safeguard commercial interests. It provides no help to this defendant, but it is squarely within a court’s authority to grant such an order in an appropriate future case. People v Wakefield, 2022 NY Slip Op 02771, CtApp 4-26-22

​Practice Point: The Court of Appeal holds that DNA evidence generated by the TrueAllele Casework System is admissible. The defense was not entitled to the TrueAllele software code either for the Frye hearing or in order the confront the witnesses against the defendant. It is an open question whether the defense could gain access to the software code by way of a protective order (suggested by the concurring opinion).

 

,

ALTHOUGH THE FAILURE TO CONDUCT A FRYE HEARING TO DETERMINE THE ADMISSIBILITY OF THE ANALYSIS OF DNA EVIDENCE USING THE FORENSIC STATISTICAL TOOL WAS ERROR, THE MAJORITY CONCLUDED IT WAS HARMLESS ERROR BECAUSE OF VIDEO EVIDENCE CIRCUMSTANTIALLY CONNECTING DEFENDANT TO THE GUN FOUND BY THE POLICE; THREE-JUDGE DISSENT ON WHETHER THE ADMISSION OF THE DNA EVIDENVE CONNECTING DEFENDANT TO THE GUN WAS HARMLESS (CT APP).

The Court of Appeals, over a three-judge dissenting opinion, held the acknowledged DNA-evidence error was harmless. All the judges agreed that a Frye hearing should have been held to determine the admissibility of the DNA analysis using the Forensic Statistical Tool. The issue was whether the defendant or others at the scene of the assault (a deli store) possessed a gun which was found on a display shelf by a police officer. DNA evidence connected the gun to the defendant. The majority concluded the video footage which showed defendant placing an item on the shelf where the gun was found rendered the DNA-evidence error harmless:​

It was an abuse of discretion for the trial court to admit the results of DNA analysis conducted using the Forensic Statistical Tool without first holding a Frye hearing … . Here, however, this error was harmless. The evidence of defendant’s guilt was overwhelming. Video footage from a security camera inside the store was entered into evidence at trial, including footage from one camera trained on a display shelf which captured a group of men holding defendant against the shelf. The other men then scatter, leaving the video frame, at which point defendant places an item on the shelf directly in front of him before he too runs out of the frame. After approximately two minutes and fifteen seconds, during which no one approaches the shelf or the area where defendant placed the item, a police officer looks at the space on the shelf where the item was placed, walks over, and removes a gun. Rather than “mere physical proximity,” the video shows that only defendant could have placed the item—the gun recovered minutes later—on the shelf, not “any of the several others in the same area” (dissenting op at 8). Therefore, there is no significant probability that the jury would have acquitted defendant had it not been for this error … . People v Easley, 2022 NY Slip Op 02770 CtApp 4-26-22

Practice Point: All the judges at the Court of Appeals agreed the admissibility of DNA evidence gathered using the Forensic Statistical Tool should have been determined in a Frye hearing. But the judges disagreed on whether the error in admitting the DNA evidence was harmless. The DNA evidence apparently connected the defendant to a gun found by the police. The majority concluded video evidence which demonstrated defendant placed an object in the area where the gun was found rendered the DNA error harmless. Three judges disagreed in an extensive opinion.

 

,

REFUSING TO TAKE A DWI BREATH TEST IS NOT AN OFFENSE (FOURTH DEPT).

The Fourth Department, reversing the conviction and dismissing the count, noted that refusing to take a DWI breath test is not an offense:

… [W]e note that defendant’s “refusal to submit to a breath test did not establish a cognizable offense” … . People v Alim, 2022 NY Slip Op 02671, Fourth Dept  4-22-22

Practice Point: Refusing to take a DWI breath test is not a crime.

 

, , ,

ALTHOUGH THE ISSUE WAS NOT PRESERVED, DEFENDANT’S GUILTY PLEA WAS VACATED BECAUSE IT WAS INDUCED BY THE JUDGE’S PROMISE THAT ALL THE COURT’S ORDERS COULD BE APPEALED; IN FACT, THE DEFENDANT’S CONTENTION THAT TWO COUNTS OF THE INDICTMENT WERE DUPLICITOUS COULD NOT BE RAISED ON APPEAL (FOURTH DEPT).

The Fourth Department, vacating defendant’s sentence in the interest of justice, determined the defendant’s guilty plea was induced by the judge’s promise that defendant could appeal from all the court’s orders. In fact, however, by pleading guilty defendant could not appeal the order rejecting his argument that the first two counts of the indictment were duplicitous:

We agree … with defendant that his plea was not knowingly, voluntarily, and intelligently entered. Although defendant failed to preserve that contention for our review … , we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]). “A trial court is constitutionally required to ensure that a defendant, before entering a guilty plea, has a full understanding of what the plea entails and its consequences” … , and where “a guilty plea has been induced by an unfulfilled promise, the plea must be vacated or the promise must be honored” … . Here, the court repeatedly promised defendant, who was proceeding pro se, that he would retain the right to appeal from all of its orders. The court reiterated that promise during the plea colloquy and did not advise defendant that he was forfeiting any challenge by pleading guilty. We conclude, however, that “[b]y pleading guilty, defendant forfeited his . . . contention that the first two counts of the indictment were duplicitous” … . Consequently, “[i]nasmuch as the record establishes that defendant, in accepting the plea, relied on a promise of the court that could not, as a matter of law, be honored, defendant is entitled to vacatur of his guilty plea” … . People v Mothersell, 2022 NY Slip Op 02661, Fourth Dept 4-22-22

Practice Point: Here the defendant’s guilty plea was induced by the judge’s promise all the court’s orders could be appealed. In fact, the guilty plea precluded raising on appeal defendant’s contention two indictment counts were duplicitous. Even though the issue was not preserved for appeal, the Fourth Department vacated the guilty plea.

 

ROBBERY WAS THE FELONY UPON WHICH THE FELONY ASSAULT WAS PREDICATED; THEREFORE THE SENTENCES FOR ASSAULT FIRST AND ROBBERY FIRST MUST RUN CONCURRENTLY (FOURTH DEPT).

The Fourth Department determined the sentences for assault first and robbery first should not have been imposed consecutively:

… [T]he court erred in directing that the sentence on the count of assault in the first degree run consecutively to the sentence imposed on the count of robbery in the first degree because the robbery was the predicate felony for the felony assault (see Penal Law § 70.25 [2] …). Inasmuch as “[t]he felony upon which felony assault is predicated is a material element of that crime,” the sentence imposed on the count of assault in the first degree must run concurrently with the sentence imposed on the count of robbery in the first degree … . People v Brown, 2022 NY Slip Op 02655, Fourth Dept 4-22-22

Practice Point: When one felony (here robbery first) is a predicate felony for another (here assault first), the sentence for the two crimes must run concurrently.

 

, ,

THE PEOPLE DID NOT PROVE THE ALLEGED ACTS OF SEXUAL MISCONDUCT OCCURRED AT LEAST 24 HOURS APART; THEREFORE THE PEOPLE DID NOT PRESENT PROOF SUPPORTING A 20 POINT ASSESSMENT FOR A “CONTINUOUS COURSE OF SEXUAL MISCONDUCT:” LEVEL THREE REDUCED TO LEVEL TWO (FOURTH DEPT).

The Fourth Department, reducing the defendant’s risk level from three to two, determined the People did not prove defendant engaged in a “continuous course of sexual misconduct” which requires that the acts be at least 24 hours apart:

The court erred … in assessing 20 points under risk factor 4 for having engaged in a continuous course of sexual misconduct. Points may be assessed under risk factor 4 if, as relevant here, the People establish by clear and convincing evidence that defendant engaged in “two or more acts of sexual contact, at least one of which is an act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, which acts are separated in time by at least 24 hours” … . Here, “[a]lthough the People presented evidence that defendant engaged in acts of sexual contact with the victim on more than one occasion, they failed to establish ‘when these acts occurred relative to each other’ ” … , and thus failed “to demonstrate that such instances were separated in time by at least 24 hours” … . People v Ellis, 2022 NY Slip Op 02654, Fourth Dept 4-22-22

Practice Point: A 20-point SORA assessment for a continuous course of sexual misconduct requires proof the acts took place at least 24 hours apart. Here there was no proof of when the acts occurred relative to each other, therefore the 20-point assessment was struck.

 

, ,

THE EVIDENCE DEMONSTRATED THE DEFENDANT PUNCHED THE POLICE OFFICER AFTER THE DEFENDANT WAS SPRAYED IN THE FACE WITH PEPPER SPRAY; THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE TO THE ASSAULT CHARGE; TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, over a two-justice dissent, determined the justification-defense jury instruction should have been given in this assault case. The defendant punched a police officer after the defendant was sprayed in the face with pepper spray:

… [T]he People introduced into evidence a video recording of the assault, in which defendant can clearly be seen punching a police sergeant after defendant is sprayed in the face with pepper spray. Testimony revealed, and the video corroborated, that the pepper spray was deployed because defendant was refusing to take off his shoes and change into footwear provided by the jail so that an officer could finish searching him before bringing him into the jail. However, the video depicts a very brief time period between the initial directive for defendant to remove his footwear and the deployment of the pepper spray. Based on this fact, combined with other circumstances surrounding the incident, we find that there is a reasonable view of the evidence that the use of the pepper spray constituted excessive force in this scenario. People v Heiserman, 2022 NY Slip Op 02588, Third Dept 4-21-22

Practice Point: Here there was evidence that the police officer’s spraying defendant in the face with pepper spray constituted the use of excessive force. Defendant punched the police officer after the defendant was sprayed and was charged with assault. The failure to instruct the jury on the justification defense was reversible error. Two dissenters disagreed.

 

,

THE FOR CAUSE CHALLENGE TO THE PROSPECTIVE JUROR WHO WAS AN ASSISTANT DISTRICT ATTORNEY IN THE OFFICE PROSECUTING THE DEFENDANT SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, ordering a new trial, determined defense counsel’s for cause challenge to a juror who was an assistant district attorney in the office which was prosecuting the defendant should have been granted:

… [D]uring jury selection, the subject prospective juror informed the Supreme Court that she was presently working as an assistant district attorney, within the Queens County District Attorney’s Office, the same agency that was prosecuting the defendant, and that she was familiar with the prosecutor, the defense attorney, and the Justice. As the People correctly concede, the juror’s contemporaneous working relationship with the agency prosecuting the defendant required that juror’s dismissal for cause … . People v Cortes, 2022 NY Slip Op 02561, Second Dept 4-20-22

Practice Point: The for cause challenge to the prospective juror who was an assistant district attorney in the same office which was prosecuting the defendant should have been granted; new trial ordered.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy