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DEFENDANT WAS CONVICTED OF ASSAULT THIRD BASED UPON HIS LOSING CONTROL OF THE CAR AND CRASHING, INJURING A PASSENGER; THE “CRIMINAL NEGLIGENCE” ELEMENT OF ASSAULT THIRD WAS NOT SUPPORTED BY THE EVIDENCE; CONVICTION REVERSED UNDER A “WEIGHT OF THE EVIDENCE” ANALYSIS (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, determined the criminal-negligence element of assault third was not proven. Defendant was driving with a passenger when he crossed into the oncoming lane, pulled back into his lane, lost control and crashed, injuring the passenger:

In cases involving criminal negligence arising out of automobile accidents involving excess rates of speed, such as here, “it takes some additional affirmative act by the defendant to transform ‘speeding’ into ‘dangerous speeding’ ” … . With respect to the issue of defendant’s rate of speed, the trial testimony from the prosecution’s expert witness that defendant was driving at the excessive speed of approximately 92 miles per hour at the time of the incident was speculative … . The expert’s calculation of the vehicle’s speed was based on the assumption of “100 percent braking,” but there was no evidence that defendant braked at all before his vehicle collided with the mailbox, tree and utility pole and came to a stop. Moreover, the People’s version of the events, that defendant deliberately attempted to “flatten out the curve” by crossing the double line of the curve, does not rise to the level of moral blameworthiness to constitute criminal negligence … . People v Palombi, 2022 NY Slip Op 02896, Fourth Dept 4-29-22

Practice Point: In the context of an assault third charge alleging a car accident was the result of defendant’s “criminal negligence,” proof of speeding, as opposed to proof of “dangerous speeding,” will not support a conviction. This case is a good example of “legally sufficient evidence” resulting in a conviction which is determined on appeal to be “against the weight of the evidence.” The expert evidence presented to show the speed at which defendant was driving was speculative and based upon an unproved assumption. That evidence was deemed too weak to support a conviction, thereby rendering the conviction “against the weight of the evidence.”

 

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THE MAJORITY CONCLUDED THAT, IF IT WAS ERROR TO ADMIT TESTIMONY THAT THE RAPE VICTIM WAS AWARE DEFENDANT HAD BEEN INCARCERATED, THE ERROR WAS HARMLESS; TWO DISSENTERS ARGUED THE EVIDENCE HAD NO PROBATIVE VALUE BECAUSE THE VICTIM’S STATE OF MIND WAS NOT IN ISSUE AND ITS INTRODUCTION WAS THERFORE HIGHLY PREJUDICIAL (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that, if it was error to admit testimony that the rape victim was aware defendant had been incarcerated, the error was harmless. The dissenters argued that the victim’s state of mind, i.e., awareness of defendant’s prior incarceration, was irrelevant because the victim was immediately overpowered and pushed to the floor upon opening the door for the defendant:

From the dissent:

The evidence … had no probative value under the circumstances of this case and should have been excluded as prejudicial … . People v Hartsfield, 2022 NY Slip Op 02908, Fourth Dept 4-29-22

Practice Point: The two dissenters argued that evidence the rape victim was aware defendant had been incarcerated should not have been admitted because it was  irrelevant and highly prejudicial. The evidence was irrelevant because the victim’s state of mind was not in issue.

 

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THE MAJORITY HELD THE DEFENDANT’S ACTIONS INSIDE THE STOPPED VEHICLE RAISED A REASONABLE SUSPICION DEFENDANT WAS ARMED, JUSTIFYING A PAT DOWN SEARCH; THE DISSENT ARGUED THE DEFENDANT’S ACTIONS WERE EQUIVOCAL AND INNOCUOUS (FOURTH DEPT).

The Fourth Department, over a dissent, determined the police officer’s observations of defendant inside the stopped vehicle were sufficient to raise a reasonable suspicion the defendant was armed, which justified the pat down search. The dissent argued that the proof presented at the suppression hearing did not meet the “reasonable suspicion” standard.

Although the dissent suggests otherwise, the fact that the officer’s view of defendant was obscured to some extent when defendant was partially concealed inside the vehicle and was observed surreptitiously reaching toward his waistband constitutes a “circumstance that supports a reasonable suspicion that [defendant was] armed or pose[d] a threat to [officer] safety” … .

From the dissent:

“Reasonable suspicion ‘may not rest on equivocal or “innocuous behavior” that is susceptible of an innocent as well as a culpable interpretation’ ” … . Inasmuch as defendant’s nervousness and movements were susceptible of an innocent interpretation, particularly in light of his status as the vehicle’s only black occupant, and inasmuch as defendant was, according to the officer’s testimony, “fully compliant” with the officers’ instruction to exit the vehicle, I agree with defendant that his conduct while in the vehicle was insufficient to establish reasonable suspicion necessary for law enforcement to conduct a pat frisk of his person … . People v Ginty, 2022 NY Slip Op 02899, Fourth Dept 4-29-22

Practice Point: Although only the dissent felt this analysis applied here, a person’s “equivocal” or “innocuous” behavior, like nervousness or shaking, does not support a “reasonable suspicion” that a person is armed.

 

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THE TWO-JUSTICE DISSENT ARGUED THAT THE MAJORITY ERRONEOUSLY AFFIRMED THE DENIAL OF THE MOTION TO VACATE THE CONVICTION ON A GROUND NOT RELIED UPON BY THE MOTION COURT (FOURTH DEPT). ​

The Fourth Department affirmed the summary denial of defendant’s motion to vacate his conviction on ineffective assistance grounds. Defendant argued his counsel was ineffective because counsel did not object to defendant’s being forced to wear a stun belt. The two-justice dissent noted that the ground on which the majority based its decision, i.e., that defense counsel’s failure to object did not rise to ineffective assistance, was not the ground relied on by the motion court. Therefore, the dissent argued, the appellate court could not affirm on that ground:

From the dissent:

The court summarily denied the motion, concluding in relevant part that defendant is not entitled to relief on his ineffective assistance of counsel claim because we determined on direct appeal that he was not deprived of effective assistance of counsel … . The majority affirms that ruling on another ground, one not argued by the People on appeal—namely, that defense counsel’s failure to object to the stun belt, standing alone, was not such an egregious or prejudicial error as to compromise defendant’s right to a fair trial. Because the court did not deny defendant’s motion on the ground relied upon by the majority, we are precluded from affirming on that ground (see People v Concepcion, 17 NY3d 192, 197-198 [2011]; People v LaFontaine, 92 NY2d 470, 473-474 [1998], rearg denied 93 NY2d 849 [1999]). People v Bradford, 2022 NY Slip Op 02897, Fourth Dept 4-29-22

Practice Point: Although the argument was made in the dissent in this case, it is worth noting that there is authority for the position that an appellate court cannot affirm on a ground not relied upon by the lower court.

 

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THE JUDGE’S INTERFERENCE IN AND RESTRICTIONS ON THE DEFENSE SUMMATION AND IMPROPER EXCLUSION AND ADMISSION OF EVIDENCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s murder, assault and weapon-possession convictions in the interest of justice, determined the judge improperly restricted defense counsel’s summation and evidence submissions, and improperly allowed hearsay identification evidence which supported the People’s theory. Identification of the shooter was the key issue, and the eyewitness accounts were inconsistent and contradictory. The judge prohibited defense counsel from questioning the fairness of the identification procedure (line up) in summation and repeatedly interposed “objections” during the defense summation, in the absence of any objection by the prosecutor:

The Supreme Court’s limitation of the defendant’s cross-examination of the police witness and its sua sponte admonishments to defense counsel during summation improperly limited the defendant’s right to challenge the lineup procedures as unfair and suggestive … . Moreover, the court erred in informing the jury and the parties in front of the jury that it had already determined that the pretrial identification procedure was fair and not suggestive, and that the lineup was “constitutional,” wrongly intimating that those facts were not within the jury’s province to determine … . …

The Supreme Court also substantially impaired the defendant’s right “to make an effective closing argument” … through sua sponte “objection sustained” interruptions without any actual objection being posited by the People…. . …

The Supreme Court also erred in admitting into evidence the hearsay statement of an unidentified woman that a man “wearing all gray had the firearm” as an excited utterance exception to the hearsay rule … .. The record contained no evidence from which a trier of fact could reasonably infer that the statement was based on the woman’s personal observation … . …

… [T]he Supreme Court should have granted the defendant’s application to admit into evidence the photographs of the defendant and Cruzado [who was also at the scene] to allow the jury to compare their likenesses, since, under the circumstances of this case, such evidence was highly probative of the defense of third-party culpability and plainly outweighed any danger of delay, prejudice, and confusion … .People v Aponte, 2022 NY Slip Op 02813, Second Dept 4-27-22

Practice Point: In this case, where identification of the shooter was the central issue, the judge improperly prohibited defense counsel from questioning the fairness of the line-up procedure in summation. This and other substantial interference and evidentiary errors by the judge required reversal of the murder conviction in the interest of justice.

 

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THE 21-YEAR DELAY BETWEEN THE CRIME AND DEFENDANT’S ARREST DID NOT VIOLATE DEFENDANT’S SPEEDY-TRIAL RIGHTS (SECOND DEPT).

The Second Department determined the 21-year delay between the crime (rape) defendant’s arrest did not violate defendant’s right to a speedy trial:

… [T]he People met their burden of demonstrating good cause for the delay … . Nineteen years of the subject delay was due to the lack of connection between the semen sample collected at the time of the rape in 1994 and the defendant’s DNA profile, which was not developed and uploaded to the law enforcement databases until 2013. Once the police were able to identify a viable suspect, they had a good-faith basis to wait until they could locate the victim to arrest the defendant. Furthermore, the detectives’ hearing testimony established that the police made reasonable and diligent efforts to locate the victim, and the defendant was arrested immediately after a detective located and interviewed the victim … . The extent of the delay in prosecution is outweighed by the People’s good cause for the delay, the nature of the crime, the fact that there was no period of pretrial incarceration during the period at issue, and the lack of any prejudice from the delay identified by the defendant. We are satisfied that the defendant was not deprived of his due process right to prompt prosecution … . People v Gardner, 2022 NY Slip Op 02816, Second Dept 4-27-22

Practice Point: The 21-year delay between the crime and defendant’s arrest in this rape case was adequately explained. The DNA sample was not connected to a person until nearly 20 years after the rape and the victim was not located until a year or so after that.

 

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.

 

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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.

 

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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).

 

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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.

 

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