“The Supreme Court properly permitted the People to impeach the testimony of a defense witness with a statement made by that witness’s former counsel at a plea proceeding… .The statement, which differed from the witness’s trial testimony, reasonably appeared to be attributable to the witness … “. People vs Davis, 2010-11219, Ind. No. 921/09 Second Dept. 2-20-13
A police officer approached defendant who was in a parked car. The officer smelled a “strong odor of unburnt marijuana coming from the defendant’s vehicle’s open window.” The officer asked if the occupants of the vehicle had “anything illegal.” The defendant produced a small bag of marijuana. The officer then told the defendant to get out of the vehicle “as he was now under arrest for unlawful possession of marijuana.” The officer searched the vehicle and found two bags of marijuana under the driver’s seat. When he asked the defendant if the bags of marijuana were his, he said “yes.” A gun was also recovered in the search. The defendant was taken to the police station where he was read his Miranda rights for the first time and he declined to speak with the detective. Two hours later the arresting officer told the defendant that if no one confessed to owning the gun, everyone in the vehicle would be “equally charged.” The defendant then asked to speak to the detective. He was read his Miranda rights again and confessed to owning the gun. The Second Department suppressed the marijuana and the gun—the marijuana because the defendant was in custody and had not been read his rights at the time he was asked about it—and the gun because defendant had initially refused to speak with the police thereby asserting his right to remain silent. Subsequent questioning was not proper. People vs. Jackson, 2011-05745, Ind. No. 10-00130 Second Dept. 2-20-13
DeBour, street stops
“A written report prepared by a nontestifying doctor interpreting the results of a medical test is not admissible into evidence. …[O]pinion evidence must be based on facts in the record or personally known to the witness …” D’Andria vs Pesce, 2011-03506, Index No. 16320/02 Second Dept. 2-20-13
The Court of Appeals, in a full-fledged opinion by Judge Smith, determined that defense counsel’s failure to move to suppress based upon a violation of Criminal Procedure Law 710.30, which requires notice of any identification of the defendant as the perpetrator, did not rise to ineffective assistance. Although the People provided notice of an identification of the defendant by the victim at a particular time, they did not provide notice of a subsequent identification by the victim a few minutes later after defendant was in custody:
Assuming that there was a section 710.30 violation, it might not have resulted in exclusion of the evidence in question. CPL 710.30 (2) provides for the possibility of late notice, and a belated suppression hearing, when the People show “good cause.” The belated notice and hearing may occur during the trial …, and if the trial court thought the People had made an excusable error it might have granted such a remedy here.
In short, it is not obvious that defendant’s counsel could have successfully sought preclusion of the evidence of the victim’s post-arrest identification under section 710.30. An argument for preclusion could have been made, but not an argument “so compelling that a failure to make it amounted to ineffective assistance of counsel” … . Counsel’s performance should not be “second-guessed with the clarity of hindsight” … . Any deficiency in her performance was not so great that it can support an ineffective assistance claim.
Nor has defendant shown any serious likelihood that he was prejudiced by trial counsel’s alleged error. Even if the trial court had precluded evidence of the victim’s post-arrest identification, the evidence against defendant would remain strong. People v Vasquez, 2013 NY Slip Op 01016 [20 NY3d 461], CtApp 2-19-13
The Court of Appeals determined the “records pertaining to the routine inspection, maintenance and calibration of breathalyzer machines can be offered as evidence in a criminal trial without producing the persons who created the records. …[S]uch records are nontestimonial…” Judge Pigott agreed with that “Confrontation Clause analysis” but wrote a dissent about the nature of the vehicle stop that led to the DWI arrest. The suppression court had ruled that the stop was not supported by probable cause “but for … a Finger Lakes Community College sticker in the rear window…”. Apparently such a sticker violates Vehicle and Traffic Law section 375 (1)(b)(i). Judge Pigott noted that college stickers are common, the statute is rarely if ever enforced, and stopping a car because of a sticker is “not objectively reasonable.” Judge Pigott would have suppressed the evidence which arose from the stop. People vs Pealer, No. 9, CtApp 2-19-13
In a case based upon allegations the defendant assaulted his wife in a jealous rage, the trial judge allowed evidence of a prior crime to prove the “identity” of the perpetrator pursuant to the Molineux rule. The Second Department, in a prior decision, reversed the conviction finding that the perpetrator’s identity was not an issue in the case. After the initial reversal by the Second Department, the Court of Appeals, in turn, reversed the Second Department finding that the perpetrator’s identity had not been “conclusively established,” and sent the case back to determine if the identity exception was applicable to the facts. The Second Department stuck to its initial reasoning, finding that allowing the “prior crime” evidence on the issue of the perpetrator’s “identity” was an abuse of discretion because the prejudicial effect of the evidence outweighed its probative value. People vs Agina, 2005-11978, Ind. No. 1733/04 Second Dept. 2-13-13
Although the victim was shot in the chest and arm, the Fourth Department determined there was insufficient evidence of serious physical injury and reduced the Assault 1st conviction to Attempted Assault 1st. The Court did not reach the issue whether the indictment was supported by legally sufficient evidence because the issue was not raised in the omnibus motion (suggesting that a conviction does not preclude raising insufficient-evidence-to-indict on appeal). People vs Madera, 6, KA 11-00450 Fourth Dept. 2-8-13
In an appeal by the People, the Fourth Department determined the suppression motion should not have been granted for the reasons relied on by the suppression court. The Fourth Department found that the officers who approached two men and asked the non-threatening question “What’s up guys” had “an objective credible reason not necessarily indicative of criminality” for doing so. The men were seen walking from a private driveway toward a car in a public parking lot for a recreation area. The men were dressed “pretty heavy” for the mid-70-degree weather, unlike the bikers and hikers who use the park. And there had been a number of daytime burglaries in the area. People vs Johnston, 8, KA 12-01414 Fourth Dept. 2-8-13
DeBour, street stops
A police officer approached the defendant’s car which was illegally parked. The officer asked the defendant “What’s going on” and the defendant answered that he was seeking a prostitute. The officer asked if there was anything in the car he “should be aware of” and then asked for and received permission to search the car. A gun was found. Defendant eventually pled guilty to attempted criminal possession of a weapon. The Fourth Department determined the search was illegal and suppressed the evidence seized in the search. The Court determined the officer’s question whether there was anything in the car he should be aware of, a question that rose to the level of “a common-law inquiry under De Bour,” was not based on a “founded suspicion that criminal activity is afoot.” People vs Carr, 3, KA 08-02222 Fourth Dept. 2-8-13
DeBour, street stops
The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that the plaintiff in this personal injury action was entitled to a potential bias jury instruction. The fact witness subpoenaed by the defendant (CSI) was paid $10,000 and the high fee was not explained:
Plaintiff testified that she stepped into a “dip in the trench” that caused her to fall. To rebut this testimony, CSI subpoenaed a physician who had treated plaintiff in the emergency room shortly after the accident. The doctor was called merely as a fact witness to testify concerning his entry in the “history” section of his consultation note that plaintiff “tripped over a dog while walking last night in the rain” (emphasis supplied). He testified consistently with his documented note. During cross-examination, plaintiff’s counsel elicited from the doctor that CSI had paid him $10,000 for appearing and testifying. The doctor denied that his testimony was influenced by the payment, stating simply that he was there to “testify[ ] to my records.” His testimony consisted only of his verification that he made the entry into the emergency room record. No professional opinion was sought nor given. Plaintiff’s counsel requested that the court strike the doctor’s entire testimony or, in the alternative, issue either a curative instruction or a jury charge concerning monetary influence.
The following day, before summations, plaintiff’s counsel asked that the court charge the jury that, pursuant to CPLR 8001, the doctor, as a fact witness, was entitled to a witness fee of $15 per day and $.23 per mile to and from the place where he was served with the subpoena. Defense counsel countered that the witness fee was the statutory minimum and that [*3]there was no prohibition against paying a fact witness for time missed from work. * * *
We agree with plaintiff that Supreme Court should have issued a bias charge specifically tailored to address the payment CSI made to the doctor. Supreme Court generally instructed the jury that bias or prejudice was a consideration that it should consider in weighing the testimony of any of the witnesses, but this was insufficient as it pertained to CSI’s payment to the doctor. To be sure, Supreme Court properly acted within its discretion in concluding that the fee payment was fertile ground for cross-examination and comment during summation. But because CSI did not even attempt to justify the $10,000 payment for one hour of testimony, Supreme Court should have also crafted a charge that went beyond the CPLR 8001 requirements. Supreme Court should have instructed the jury that fact witnesses may be compensated for their lost time but that the jury should assess whether the compensation was disproportionately more than what was reasonable for the loss of the witness’s time from work or business. Should the [*5]jury find that the compensation is disproportionate, it should then consider whether it had the effect of influencing the witness’s testimony (see PJI 1:904) … . Caldwell v Cablevision Sys. Corp., 2013 NY Slip Op 00783 [20 NY3d 365], CtApp 2-7-13
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