Criminal Law Update August 2019

Criminal Law Update August 2019

Course #CRM0356 (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 Hour

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 August 1, 2019 and August 31, 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 August 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 August 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 August 2019

Criminal Law Update August 2019 Attorney Affirmation

Criminal Law Update August 2019 Evaluation Survey

Topics Covered in the “Criminal Law Update August 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 August 2019”

APPEALS.

APPELLATE COUNSEL’S BRIEF IN SUPPORT OF LEAVE TO WITHDRAW WAS DEFICIENT, NEW APPELLATE COUNSEL ASSIGNED (SECOND DEPT). 5

ARTIFICIAL INTELLIGENCE, DNA.

THE SOURCE CODE USED TO CONNECT DNA FROM THE MURDER SCENE TO THE DEFENDANT GENERATED A REPORT WHICH IMPLICATED THE DEFENDANT AND WAS THEREFORE TESTIMONIAL, HOWEVER, THE SOURCE CODE, AS A FORM OF ARTIFICIAL INTELLIGENCE, WAS NOT THE DECLARANT; THEREFORE THE FACT THAT DEFENDANT WAS NOT PROVIDED WITH THE SOURCE CODE DID NOT VIOLATE HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM (THIRD DEPT). 6

ASSAULT.

NO REASONABLE VIEW OF THE EVIDENCE SUPPORTED ANYTHING LESS THAN SERIOUS PHYSICAL INJURY, REQUEST FOR A JURY CHARGE ON ASSAULT THIRD WAS PROPERLY DENIED (CT APP). 7

ATTORNEYS, STATEMENTS, SEARCHES.

DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO SUPPRESS TANGIBLE EVIDENCE SEIZED PURSUANT TO A SEARCH WARRANT WHICH WAS ISSUED BASED UPON UNWARNED STATEMENTS MADE BY DEFENDANT, STATEMENTS WHICH HAD BEEN SUPPRESSED BY THE TRIAL COURT (SECOND DEPT). 7

ATTORNEYS.

COUNTY COURT SHOULD HAVE HELD A HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE OF COUNSEL GROUNDS, DEFENDANT PRESENTED EVIDENCE AN ALIBI WITNESS WAS NOT INTERVIEWED; A WITNESS’S RECANTATION WAS PROPERLY FOUND UNBELIEVABLE (FOURTH DEPT). 8

ATTORNEYS.

DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RAISE THE INTOXICATION DEFENSE IN THIS MURDER CASE; THE MANSLAUGHTER CHARGE MUST BE DISMISSED AS AN INCLUSORY CONCURRENT COUNT OF MURDER (SECOND DEPT). 9

FIFTH AMENDMENT, APPEALS, STATEMENTS.

ALLOWING AN UNSWORN WITNESS TO TESTIFY WAS ERROR; ALLOWING QUESTIONING ABOUT A WITNESS’S ASSERTION OF THE FIFTH AMENDMENT PRIVILEGE DEPRIVED DEFENDANT OF A FAIR TRIAL; FIFTH AMENDMENT ISSUES CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE; 710.30 NOTICE NOT REQUIRED FOR A STATEMENT NOT SUBJECT TO SUPPRESSION; NEW TRIAL ORDERED BEFORE A DIFFERENT JUDGE (SECOND DEPT). 10

GRAND JURIES, ROBBERY.

GRAND JURY EVIDENCE WAS SUFFICIENT TO SUPPORT ROBBERY FIRST DEGREE DESPITE THE VICTIM’S TESTIMONY THAT HE DID NOT SEE A KNIFE (FOURTH DEPT). 11

GRAND JURIES.

COUNTY COURT SHOULD NOT HAVE ACCEPTED GRAND JURY REPORTS RE: THE ALLEGED MISCONDUCT, NONFEASANCE OR NEGLECT IN OFFICE OF THREE PUBLIC OFFICIALS; THE PROSECUTOR DID NOT INSTRUCT THE GRAND JURY ON THE SUBSTANTIVE ASPECTS OF THE PUBLIC OFFICIALS’ DUTIES (FOURTH DEPT). 12

GRAND JURIES.

FAILURE TO INSTRUCT THE GRAND JURY ON THE “DEFENSE OF PROPERTY” JUSTIFICATION DEFENSE REQUIRED DISMISSAL OF THE MURDER/MANSLAUGHTER INDICTMENT, TWO JUSTICE DISSENT (FOURTH DEPT). 12

JURIES.

BRIEF PARTICIPATION IN JURY DELIBERATIONS BY AN ALTERNATE WHILE A SWORN JUROR WAS ABSENT VIOLATED DEFENDANT’S CONSTITUTIONAL RIGHT TO A JURY OF 12, DEFENDANT’S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT). 14

MURDER FOR HIRE.

EVIDENCE SUPPORTED THE FIRST DEGREE MURDER CONVICTION BASED UPON DEFENDANT’S HIRING THE KILLER (FOURTH DEPT). 15

PAROLE, CRIME VICTIMS.

CRIME VICTIMS DO NOT HAVE STANDING TO CHALLENGE A PRISONER’S RELEASE ON PAROLE (THIRD DEPT). 15

SEARCHES, PROBABLE CAUSE.

IN DENYING A SUPPRESSION MOTION THE JUDGE CAN CONSIDER EVIDENCE SUBMITTED BY THE PEOPLE, EVEN IF THAT EVIDENCE WAS NOT EXPRESSLY RELIED UPON BY THE PEOPLE; OBSERVATION OF WHAT APPEARED TO BE A DRUG TRANSACTION PROVIDED PROBABLE CAUSE; THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT APPLIED; THE INVENTORY SEARCH WAS VALID (FOURTH DEPT). 16

SEARCHES.

WARRANTLESS SEARCH OF DEFENDANT’S BACKPACK WAS NOT A VALID SEARCH INCIDENT TO ARREST, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT). 17

SENTENCING, PREDICATE SEX OFFENDER.

DEFENDANT SHOULD NOT HAVE BEEN DESIGNATED A PREDICATE SEX OFFENDER BASED UPON A MICHIGAN CONVICTION OF “BREAKING AND ENTERING AN OCCUPIED DWELLING WITH THE INTENT TO COMMIT CRIMINAL SEXUAL CONDUCT IN THE SECOND DEGREE” (SECOND DEPT). 18

SENTENCING.

SENTENCE AFTER TRIAL, WHICH WAS SIX TIMES LONGER THAN THE SENTENCE OFFERED FOR A PLEA, DEEMED UNDULY HARSH AND SEVERE (FOURTH DEPT). 19

SENTENCING.

TWELVE YEAR SENTENCE FOR CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE THIRD DEGREE DEEMED UNDULY HARSH AND SEVERE, REDUCED TO SEVEN YEARS IN THE INTEREST OF JUSTICE, TWO-JUSTICE DISSENT (FOURTH DEPT). 19

SEX OFFENDER REGISTRATION ACT.

EVIDENCE DID NOT SUPPORT A LEVEL THREE RISK ASSESSMENT, REDUCED TO LEVEL TWO; STANDARD OF PROOF IS PREPONDERANCE NOT CLEAR AND CONVINCING (FOURTH DEPT). 20

SEX OFFENDER REGISTRATION ACT.

SORA RISK ASSESSMENT REDUCED TO LEVEL ONE, NO PROOF AGE OF CHILDREN DEPICTED IN PORNOGRAPHY WAS LESS THAN TEN (FOURTH DEPT 21

SIDEBAR.

DEFENDANT’S ABSENCE FROM SIDEBAR CONFERENCES DURING JURY SELECTION DID NOT REQUIRE REVERSAL (FOURTH DEPT). 21

STATEMENTS.

DEFENDANT WAS NOT IN CUSTODY WHEN HE WAS ASKED POINTED QUESTIONS, NO MIRANDA WARNING REQUIRED; POLICE OFFICER’S SUBJECTIVE BELIEF DEFENDANT WAS NOT FREE TO LEAVE IS IRRELEVANT; RAPE FIRST IS AN INCLUSORY CONCURRENT COUNT OF PREDATORY SEXUAL ASSAULT (FOURTH DEPT). 22

STATEMENTS.

UNDER THE CIRCUMSTANCES OF THIS CASE, PRE-MIRANDA QUESTIONING OF THE DEFENDANT ABOUT HIS EMPLOYMENT CONSTITUTED CUSTODIAL INTERROGATION; ALL OF DEFENDANT’S STATEMENTS, PRE- AND POST-MIRANDA, MUST BE SUPPRESSED; JURY SHOULD HAVE BEEN TOLD OUT-OF-COURT STATEMENTS ADMITTED FOR A NONHEARSAY PURPOSE SHOULD NOT BE CONSIDERED FOR THEIR TRUTH (SECOND DEPT). 23

WRONGFUL CONVICTION.

WRONGFUL CONVICTION ACTION PROPERLY DISMISSED, CONVICTION WAS NOT VACATED ON A GROUND ENUMERATED IN THE COURT OF CLAIMS ACT (FOURTH DEPT). 24

YOUTHFUL OFFENDERS, DNA.

A JUDGE HAS THE DISCRETION TO EXPUNGE A YOUTHFUL OFFENDER’S DNA RECORDS, SUPREME COURT REVERSED (FIRST DEPT). 25