Criminal Law Update April 2019

Criminal Law Update April 2019

Course #CRM0352 (Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Hybrid Accreditation for September 2, 2020, through December 31, 2021

This Course Is Appropriate for Experienced Attorneys

Areas of Professional Practice: 0.5 CLE Credit Hours

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

This course organizes summaries of decisions by the New York State appellate courts (Appellate Division and Court of Appeals) released between April 1, 2019 and April 30, 2019 which address issues in “Criminal Law.” Similar 1/2-to 1-hour CLE courses are continuously being submitted for approval to the NYS CLE Board for each month from January 2019 to the present, to provide readers with CLE credit simply for keeping up to date with the latest appellate decisions.

The “Criminal Law” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly pamphlets which are accessed in the “Update Service.” The monthly pamphlets comprise the written materials for these monthly CLE courses. A link to the written materials for this course (“Criminal Law Update Pamphlet April 2019”) is provided below.

As you listen to the course, you will hear a verification code. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification code, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey” (the CLE Board requires that I collect and preserve the Evaluation Surveys). Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 0.5 credit-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the links below for the written materials (“Criminal Law Update Pamphlet April 2019”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

The media player for this course is at the bottom of the page.

Criminal Law Update Pamphlet April 2020

Criminal Law Update April 2019 Attorney Affirmation

Criminal Law Update April 2019 Evaluation Survey

Topics Covered in the “Criminal Law Update April 2019” Course Are Described Below (the podcast may not address every case in the written materials); Page Numbers Refer to the Written Materials, i.e., the “Criminal Law Update Pamphlet April 2019”

APPEALS, WEIGHT OF THE EVIDENCE.

DEFENDANT’S CONVICTIONS FOR PREDATORY SEXUAL ASSAULT AGAINST A CHILD AND RAPE AFFIRMED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE DISSENT, APPLYING A WEIGHT OF THE EVIDENCE ANALYSIS, ARGUED THE EVIDENCE DID NOT RISE TO THE LEVEL OF BEYOND A REASONABLE DOUBT (FOURTH DEPT). 6

ATTORNEY GENERAL, AUTHORITY TO PROSECUTE.

THE ATTORNEY GENERAL DID NOT HAVE THE AUTHORITY TO PROSECUTE DEFENDANT IN THIS CRIMINAL CASE BECAUSE NO REQUEST WAS MADE BY THE SUPERINTENDENT OF THE STATE POLICE (FOURTH DEPT). 6

ATTORNEYS, INEFFECTIVE ASSISTANCE, SPEEDY TRIAL.

DEFENSE COUNSEL WAS INEFFECTIVE BECAUSE HE MISCALCULATED AND FILED A SPEEDY TRIAL MOTION TEN DAYS BEFORE THE SPEEDY TRIAL CLOCK RAN OUT, DEFENDANT’S MOTION TO VACATE THE CONVICTION WAS PROPERLY GRANTED AND THE INDICTMENT DISMISSED (FIRST DEPT). 7

CELL SITE LOCATION DATA, WARRANT REQUIREMENT.

COURT ORDER AUTHORIZING ACCESS TO DEFENDANT’S HISTORICAL CELL SITE LOCATION DATA INCLUDED AN EXPRESS FINDING OF PROBABLE CAUSE AND WAS THEREFORE THE EQUIVALENT OF A WARRANT (SECOND DEPT). 8

DNA, WARRANT APPLICATION, ATTORNEYS.

DEFENDANT AND DEFENSE COUNSEL ENTITLED TO NOTICE AND AN OPPORTUNITY TO BE HEARD IN OPPOSITION TO A WARRANT APPLICATION FOR THE COLLECTION OF DNA EVIDENCE, YOUTUBE VIDEO NOT PROPERLY AUTHENTICATED (FIRST DEPT). 8

DOUBLE JEOPARDY, SENTENCING, ATTORNEYS, INEFFECTIVE ASSISTANCE.

DEFENDANT HAD SERVED HIS ENTIRE SENTENCE BY THE TIME THE ASSAULT SECOND CONVICTION WAS OVERTURNED, THE IMPOSITION OF MORE PRISON TIME UPON HIS SUBSEQUENT PLEA TO THE ASSAULT SECOND CHARGE VIOLATED THE DOUBLE JEOPARDY CLAUSE, DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT REQUESTING TIME SERVED, BECAUSE THE ERROR AFFECTED THE VOLUNTARINESS OF DEFENDANT’S GUILTY PLEA THE WAIVER OF APPEAL DID NOT APPLY (THIRD DEPT). 10

DOUBLE JEOPARDY, CONSPIRACY TO MURDER VS MANSLAUGHTER.

PROSECUTION FOR CONSPIRACY TO MURDER AFTER MURDER TRIAL RESULTED IN MANSLAUGHTER AND GANG ASSAULT CONVICTIONS DID NOT VIOLATE THE PROHIBITION AGAINST DOUBLE JEOPARDY (FIRST DEPT). 11

EXCITED UTTERANCES.

STATEMENT MADE BY THE ASSAULT VICTIM 12 TO 15 MINUTES AFTER THE ASSAULT WAS PROPERLY ADMITTED AS AN EXCITED UTTERANCE (FOURTH DEPT). 11

EXCITED UTTERANCES, PRESENT SENSE IMPRESSION.

911 CALL PROPERLY ADMITTED AS PRESENT SENSE IMPRESSION OR EXCITED UTTERANCE, DEFENDANT PROPERLY GIVEN CONSECUTIVE SENTENCES FOR WOUNDING ONE VICTIM WITH THE INTENT TO SHOOT ANOTHER VICTIM (SECOND DEPT). 12

FREEDOM OF INFORMATION LAW (FOIL) VICTIM’S MEDICAL RECORDS.

MEDICAL RECORDS OF THE VICTIM OF SEXUAL ASSAULT SHOULD NOT HAVE BEEN MADE AVAILABLE TO THE PETITIONER, WHO WAS CONVICTED OF THE SEXUAL ASSAULT, PURSUANT TO PETITIONER’S FREEDOM OF INFORMATION LAW (FOIL) REQUEST, THE RECORDS ARE PROTECTED FROM DISCLOSURE BY THE PUBLIC HEALTH LAW, THE CIVIL RIGHTS LAW AND THE PUBLIC OFFICERS LAW (SECOND DEPT). 13

GUILTY PLEAS, DEPORTATION, JUDGES, ATTORNEYS.

DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA AND DID NOT HAVE A PRACTICAL ABILITY TO OBJECT, THEREFORE AN EXCEPTION TO THE PRESERVATION REQUIREMENT FOR APPEAL APPLIES, MATTER REMITTED TO ALLOW DEFENDANT TO MOVE TO WITHDRAW HIS PLEA (SECOND DEPT). 14

GUILTY PLEAS, VIOLATION OF COOPERATION AGREEMENT.

DEFENDANT’S REFUSING TO TESTIFY WAS DEEMED A VIOLATION OF THE WRITTEN COOPERATION AGREEMENT, HIS MOTION TO WITHDRAW HIS GUILTY PLEA WAS PROPERLY DENIED (CT APP). 15

IDENTIFICATION, POLICE OFFICER, GRAND JURY, VIDEO.

DETECTIVE’S TESTIMONY IN THE GRAND JURY IDENTIFYING THE PERSON DEPICTED IN VIDEOTAPES AS THE DEFENDANT WAS ADMISSIBLE, COURT OFFERED NO OPINION WHETHER THE TESTIMONY WOULD BE ADMISSIBLE AT TRIAL (FIRST DEPT). 16

IDENTIFICATION, POLICE OFFICER, TRIAL, VIDEO.

IT WAS (HARMLESS) ERROR TO ALLOW THE ARRESTING OFFICER TO TESTIFY THAT DEFENDANT WAS DEPICTED IN THE VIDEOTAPE WHICH WAS BEING PLAYED (FIRST DEPT). 16

INDICTMENTS.

WHERE THE INDICTMENT ALLEGES MORE THAN ONE WAY TO COMMIT THE CHARGED OFFENSE, THE PEOPLE NEED ONLY PROVE ONE (SECOND DEPT). 17

JURY INSTRUCTIONS, INDICTMENTS, UNCHARGED THEORY.

JURY INSTRUCTIONS ALLOWED DEFENDANT TO BE CONVICTED ON A THEORY THAT WAS NOT INCLUDED IN THE INDICTMENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE IN THIS ANIMAL CRUELTY CASE, NEW TRIAL ORDERED DESPITE DEFENDANT’S HAVING COMPLETED HIS SENTENCE (FIRST DEPT). 18

JURY INSTRUCTIONS, JUSTIFICATION DEFENSE.

FAILURE TO TELL THE JURY TO STOP DELIBERATING IF THEY FIND THE JUSTIFICATION DEFENSE APPLIES REQUIRED REVERSAL, EVEN THOUGH THE JUDGE TOLD THE JURY TO ACQUIT ON ALL COUNTS IF THE JUSTIFICATION DEFENSE APPLIES (FIRST DEPT). 19

JURY INSTRUCTIONS, ALLEN CHARGE.

GIVING A SECOND ALLEN CHARGE AND ALLOWING THE JURY TO CONTINUE DELIBERATING TO 5 OR 6 PM ON A FRIDAY, KNOWING THAT THREE JURORS HAD TRAVEL PLANS FOR MONDAY, DID NOT CONSTITUTE COERCING THE VERDICT, PROVIDING BOTH WRITTEN AND ORAL JURY INSTRUCTIONS WAS NOT IMPROPER (FIRST DEPT). 20

JURY SELECTION, FOR CAUSE CHALLENGE, APPEALS.

FOR CAUSE JUROR CHALLENGES SHOULD HAVE BEEN GRANTED, JURORS COULD NOT UNEQUIVOCALLY STATE THEY COULD PUT ASIDE THEIR RESERVATIONS AND BE FAIR AND IMPARTIAL, BECAUSE THERE WILL BE A NEW TRIAL AND BECAUSE AN APPELLATE COURT CANNOT CONSIDER ISSUES NOT RULED UPON BY THE TRIAL COURT, THE TRIAL COURT WAS DIRECTED TO CONSIDER TWO EVIDENTIARY ISSUES, ONE RAISED BY THE PEOPLE, AND ONE RAISED BY THE DEFENSE (FOURTH DEPT). 21

LESSER INCLUSORY COUNTS.

UNAUTHORIZED USE OF A VEHICLE WAS A LESSER INCLUSORY CONCURRENT COUNT OF THE GRAND LARCENY COUNT, CONVICTION ON THE GRAND LARCENY COUNT REQUIRED DISMISSAL OF THE LESSER COUNT (FOURTH DEPT). 22

OBSTRUCTION OF GOVERNMENTAL ADMINISTRATION.

ANGRY REMARK MADE TO PROBATION OFFICER DID NOT CONSTITUTE OBSTRUCTION OF GOVERNMENTAL ADMINISTRATION, PROBATION SHOULD NOT HAVE BEEN REVOKED (SECOND DEPT). 22

PAST RECOLLECTION RECORDED, RIGHT OF CONFRONTATION.

THE POLICE-OFFICER WITNESS, WHO DID TESTIFY AT TRIAL, DID NOT REMEMBER THE INCIDENT WHICH WAS THE BASIS FOR THE CHARGES AGAINST DEFENDANT, HIS GRAND JURY TESTIMONY WAS PROPERLY ADMITTED AS PAST RECOLLECTION RECORDED, DEFENDANT’S RIGHT OF CONFRONTATION WAS NOT VIOLATED BECAUSE THE WITNESS TESTIFIED (CT APP). 23

SENTENCING, SENTENCE-PROMISE.

COUNTY COURT COULD NOT LEGALLY FULFILL THE SENTENCING PROMISE THAT INDUCED DEFENDANT’S GUILTY PLEA, PLEA VACATED AND THE MATTER REMITTED FOR THE IMPOSITION OF A SENTENCE WHICH COMPORTS WITH DEFENDANT’S EXPECTATIONS (FOURTH DEPT). 24

SEX OFFENDER REGISTRATION ACT (SORA).

DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE BECAUSE THE VICTIM WAS NEARLY 17 AND NO FORCE WAS INVOLVED (THIRD DEPT). 25

SPEEDY TRIAL.

POST READINESS DELAY BECAUSE A PROSECUTION WITNESS WAS ON VACATION WAS CHARGEABLE TO THE PEOPLE, DEFENDANT’S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS SHOULD HAVE BEEN GRANTED (FOURTH DEPT). 25

STATEMENTS, ADMISSION TO POLICE AGENT.

ALTHOUGH THE PRIVATE CITIZEN WAS ACTING AS AN AGENT FOR THE POLICE WHEN SHE RECORDED DEFENDANT’S ADMISSION TO MURDER, DEFENDANT WAS NOT ENTITLED TO A 710.30 NOTICE BECAUSE THE STATEMENT WAS VOLUNTARILY MADE AND NOT SUBJECT TO SUPPRESSION, TWO -JUSTICE DISSENT (FOURTH DEPT). 26

STATEMENTS, MIRANDA, ATTORNEYS.

STATEMENTS MADE AFTER DEFENDANT REQUESTED AN ATTORNEY SHOULD HAVE BEEN SUPPRESSED, ERROR WAS NOT HARMLESS (FOURTH DEPT). 27

STREET STOPS, DE BOUR, APPEALS.

THE CONSEQUENCES OF DEFENDANT’S WAIVER OF APPEAL WERE EITHER NOT EXPLAINED OR WERE WRONGLY EXPLAINED, THE WAIVER WAS INVALID, THE INITIAL COMMUNICATION BY THE POLICE OFFICER WAS NOT A LEVEL ONE DE BOUR INQUIRY, THE SWITCHBLADE DEFENDANT THREW AWAY WHEN THE COMMUNICATION WAS MADE WAS PROPERLY ADMITTED IN EVIDENCE (SECOND DEPT). 28

STREET STOPS, SEARCHES, COMPETENCY.

DEFENDANT WAS HANDCUFFED WHEN THE POLICE SEARCHED A BAG ON THE FLOOR NEAR HIM, THE KNIFE IN THE BAG SHOULD HAVE BEEN SUPPRESSED, JUDGE PROPERLY PROCEEDED TO TRIAL WITHOUT A COMPETENCY EXAM ORDERED BY ANOTHER JUDGE AFTER DEFENDANT REFUSED TO BE EXAMINED (FIRST DEPT). 29

STREET STOPS, DE BOUR, ANONYMOUS TIP.

ALTHOUGH THE POLICE RECEIVED AN ANONYMOUS TIP THAT A MAN MATCHING DEFENDANT’S DESCRIPTION HAD A GUN, THE POLICE SAW NO SIGN OF CRIMINAL ACTIVITY WHEN THEY APPROACHED AND QUESTIONED THE DEFENDANT, THE SUBSEQUENT SEIZURE AND FRISK OF THE DEFENDANT WAS ILLEGAL (FIRST DEPT). 30

STREET STOPS, DE BOUR, ANONYMOUS TIP.

ANONYMOUS TIP ALLEGING SUSPICIOUS BEHAVIOR BY MEN WEARING HOODIES GOING IN AND OUT OF A U-HAUL TRUCK DID NOT JUSTIFY PULLING OVER A U-HAUL TRUCK DRIVEN BY A MAN WEARING A HOODIE, WEAPON FOUND IN THE TRUCK SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT). 31

STREET STOPS, DE BOUR, BLOCKING VEHICLE, SEIZURE.

POLICE EFFECTIVELY SEIZED DEFENDANT BY BLOCKING DEFENDANT’S VEHICLE WITH TWO POLICE CARS, BECAUSE THE SEIZURE TOOK PLACE IN THE ABSENCE OF REASONABLE SUSPICION A PARTICULAR PERSON WAS INVOLVED IN A CRIME THE TANGIBLE EVIDENCE SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT). 32

SUPERIOR COURT INFORMATION.

SUPERIOR COURT INFORMATION DID NOT INCLUDE THE APPROXIMATE TIME OF THE OFFENSE, GUILTY PLEA VACATED (THIRD DEPT). 33

WAIVER OF INDICTMENT, SUPERIOR COURT INFORMATION.

WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION DID NOT INCLUDE THE TIME OF THE OFFENSE, GUILTY PLEA VACATED (THIRD DEPT). 33

YOUTHFUL OFFENDER ADJUDICATION, REFUSAL TO ANSWER QUESTIONS REGARDING.

A PERSON ADJUDICATED A YOUTHFUL OFFENDER CAN REFUSE TO ANSWER QUESTIONS ABOUT THE CHARGES, THE POLICE INVESTIGATION, THE PLEA AND THE ADJUDICATION, BUT CANNOT REFUSE TO ANSWER QUESTIONS ABOUT THE UNDERLYING FACTS (SECOND DEPT). 34