Criminal Law Update February 2020

Criminal Law Update February 2020

Course #CRM0362 (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 February 1, 2020 and February 29, 2020 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 February 2020”) 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 February 2020”), 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 February 2020

Criminal Law Update February 2020 Attorney Affirmation

Criminal Law Update February 2020 Evaluation Survey

Topics Covered in the “Criminal Law Update February 2020” 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 February 2020”

ACCUSATORY INSTRUMENTS.

INFORMATION CHARGING OBSTRUCTING GOVERNMENT ADMINISTRATION DID NOT INCLUDE FACTUAL ALLEGATIONS DESCRIBING THE OFFICIAL FUNCTION WHICH WAS OBSTRUCTED AND WAS THEREFORE JURISDICTIONALLY DEFECTIVE (CT APP). 6

APPEALS, JUDGES.

SUPREME COURT DID NOT RULE ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL, MATTER REMITTED FOR A RULING (FOURTH DEPT). 7

APPEALS.

‘ANDERS’ BRIEF DEFICIENT; NEW COUNSEL ASSIGNED FOR THE APPEAL (SECOND DEPT). 7

APPEALS.

THE WAIVER OF APPEAL WAS NOT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY MADE (SECOND DEPT). 8

ARREST, SEARCH AND SEIZURE.

UNDERCOVER OFFICER’S DISTRESS SIGNAL, A GROUP OF MEN NEAR THE UNDERCOVER OFFICER YELLING, DEFENDANT’S STRUGGLING WITH THE UNDERCOVER OFFICER, DEFENDANT’S BREAKING FREE OF AN OFFICER’S RESTRAINT AND RUNNING, DEFENDANT’S FORCIBLY TAKING PROPERTY FROM THE UNDERCOVER OFFICER, AND THE FELLOW OFFICER RULE, COMBINED TO JUSTIFY THE SEIZURE AND SEARCH OF DEFENDANT; THE MOTION COURT PROPERLY REOPENED THE SUPPRESSION HEARING TO ALLOW THE PEOPLE TO SUBMIT ADDITIONAL TESTIMONY (FIRST DEPT). 9

ATTORNEYS, EVIDENCE.

PROSECUTORIAL MISCONDUCT AND IRRELEVANT MOLINEUX EVIDENCE REQUIRED REVERSAL (SECOND DEPT). 10

ATTORNEYS.

DECISION WHETHER TO ADMIT OR DENY ALLEGATIONS IN A PREDICATE FELONY STATEMENT IS RESERVED TO DEFENDANT PERSONALLY, NOT DEFENSE COUNSEL (FOURTH DEPT). 11

DISCOVERY.

PEOPLE’S REQUEST TO DENY DISCLOSURE BECAUSE OF CONCERNS FOR WITNESS SAFETY SHOULD HAVE BEEN GRANTED IN ITS ENTIRETY (SECOND DEPT). 11

DISCOVERY.

PROTECTIVE ORDER DELAYING DISCOVERY UNTIL 45 DAYS BEFORE TRIAL GRANTED BY THE APPELLATE COURT (SECOND DEPT). 12

EVIDENCE, APPEALS.

SEX TRAFFICKING CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT). 13

EVIDENCE.

ANONYMOUS 911 CALL WAS NOT ADMISSIBLE AS AN EXCITED UTTERANCE OR AS A PRESENT SENSE IMPRESSION; CONVICTION REVERSED (SECOND DEPT). 13

EVIDENCE.

PROOF OF THE VALUE OF THE STOLEN ITEMS WAS INSUFFICIENT; GRAND LARCENY 3RD DEGREE CONVICTION NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE (SECOND DEPT). 14

EVIDENCE.

REVOLVER FOUND BY A PASSERBY SEVEN BLOCKS FROM THE CRIME SCENE SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE; ERROR DEEMED HARMLESS HOWEVER (SECOND DEPT). 15

JURORS.

THE RECORD DID NOT DEMONSTRATE A SELECTED UNSWORN JUROR COULD NOT RENDER AN IMPARTIAL VERDICT BECAUSE OF AN OUT-OF-TOWN MEETING ON THE DAY BEFORE THE TRIAL WAS LIKELY TO CONCLUDE, THE PEOPLE’S FOR CAUSE CHALLENGE SHOULD NOT HAVE BEEN GRANTED, NEW TRIAL ORDERED (FIRST DEPT). 16

JURY INSTRUCTIONS.

JURY SHOULD NOT HAVE BEEN CHARGED ON THE ‘COMBAT BY AGREEMENT’ EXCEPTION TO THE JUSTIFICATION DEFENSE, CRITERIA EXPLAINED; ERROR DEEMED HARMLESS HOWEVER (SECOND DEPT). 17

JURY NOTES.

RECORD DOES NOT DEMONSTRATE DEFENSE COUNSEL WAS MADE AWARE OF A JUROR’S COMPLAINTS ABOUT THE DELIBERATIONS AND THE CONTENTS OF A NOTE FROM THE JURY; THE FOR CAUSE CHALLENGES TO TWO JURORS SHOULD HAVE BEEN GRANTED; DNA TESTING OF GUM DISCARDED BY THE DEFENDANT WHILE IN CUSTODY WAS PROPER (SECOND DEPT). 18

MENTAL DISORDER, JUDGES, APPEALS.

FAILURE TO HOLD A HEARING TO DETERMINE DEFENDANT’S MENTAL CONDITION AFTER TWO PSYCHIATRISTS FOUND DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION WAS REVERSIBLE ERROR; ALTHOUGH THE ERROR WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT). 19

MENTAL DISORDER, ATTORNEYS, APPEALS.

DEFENSE COUNSEL INEFFECTIVE FOR CONCEDING DEFENDANT SUFFERS FROM A DANGEROUS MENTAL DISORDER; COUNTY COURT SHOULD HAVE HELD THE MANDATORY STATUTORY HEARING; APPEAL IS NOT ACADEMIC BECAUSE OF LASTING CONSEQUENCES OF THE ‘DANGEROUS MENTAL DISORDER’ FINDING (SECOND DEPT). 20

SENTENCING, APPEALS.

THE COURT, DEFENSE COUNSEL AND THE PROSECUTOR WERE UNDER THE MISCONCEPTION DEFENDANT WAS ELIGIBLE FOR A PAROLE SUPERVISION SENTENCE AT THE TIME DEFENDANT PLED GUILTY; THEREFORE THE MATTER CAN BE CONSIDERED ON APPEAL IN THE ABSENCE OF PRESERVATION; PLEA VACATED (FOURTH DEPT). 21

SENTENCING, EVIDENCE.

THE ERRONEOUSLY UNSEALED RECORD OF A CRIMINAL PROCEEDING TERMINATED IN FAVOR OF THE DEFENDANT SHOULD NOT HAVE BEEN CONSIDERED BY THE SENTENCING COURT, MATTER REMITTED FOR RESENTENCING (CT APP). 22

SENTENCING, YOUTHFUL OFFENDER.

DEFENDANT, ALTHOUGH CONVICTED OF AN ARMED FELONY, SHOULD HAVE BEEN ACCORDED YOUTHFUL OFFENDER STATUS, CRITERIA EXPLAINED (SECOND DEPT). 23

SENTENCING, APPEALS.

DEFENDANT MAY NOT APPEAL OR COLLATERALLY ATTACK AN “ILLEGALLY LENIENT” SENTENCE BECAUSE THE SENTENCE DID NOT ADVERSELY AFFECT THE DEFENDANT (CT APP). 24

SENTENCING, EVIDENCE.

EVIDENCE DID NOT SUPPORT CONSECUTIVE SENTENCES FOR CRIMINAL POSSESSION OF A WEAPON AND MURDER (SECOND DEPT). 25

SENTENCING.

ONCE A COURT SENTENCES A DEFENDANT TO SHOCK INCARCERATION, THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS) DOES NOT HAVE THE AUTHORITY TO DETERMINE THE DEFENDANT IS NOT ELIGIBLE; APPEAL HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (THIRD DEPT). 25

SEX OFFENDERS, EVIDENCE.

‘RELIABLE HEARSAY’ IN A PRESENTENCE INVESTIGATION (PSI) REPORT IS A SUFFICIENT BASIS FOR A FINDING DEFENDANT USED VIOLENCE IN THE COMMISSION OF A SEX OFFENSE; LEVEL TWO RISK ASSESSMENT UPHELD (CT APP). 26

SEX OFFENDERS, EVIDENCE.

EVIDENCE OF VOYEURISTIC DISORDER SHOULD NOT HAVE BEEN CONSIDERED IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING; THE HARE PSYCHOPATHY CHECKLIST-REVISED (PCL-R) WAS PROPERLY RELIED UPON (SECOND DEPT). 27

SEX OFFENDERS.

SCHOOL-GROUNDS-PROXIMITY-RESIDENCE PROHIBITION APPLIED TO PETITIONER, A LEVEL THREE SEX OFFENDER, EVEN THOUGH THE OFFENSE FOR WHICH HE WAS BEING PAROLED WAS BURGLARY; SECOND DEPARTMENT DISAGREED WITH THE RESOLUTION OF THIS ISSUE BY THE THIRD AND FOURTH DEPARTMENTS; APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT). 28

SPEEDY TRIAL.

28-YEAR PRE-INDICTMENT DELAY IN THIS MURDER CASE DID NOT VIOLATE DEFENDANT’S RIGHT TO DUE PROCESS; DNA PROFILE STEMMING FROM DEFENDANT’S 2008 ARREST MATCHED BLOOD EVIDENCE FROM THE 1984 MURDER (SECOND DEPT). 29

SPEEDY TRIAL.

COUNTY COURT SHOULD HAVE HELD A HEARING ON DEFENDANT’S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS; THE PROSECUTION WAS NOT STARTED UNTIL 22 MONTHS AFTER THE INCIDENT; MATTER REMITTED (SECOND DEPT). 30

STREET STOPS, SEARCH AND SEIZURE.

SUPREME COURT PROPERLY FOUND THAT THE OFFICER DID NOT HAVE SUFFICIENT GROUNDS TO STOP DEFENDANT ON THE STREET, DETAIN HIM, SEARCH HIS BAG AND TRANSPORT HIM TO THE BURGLARY SCENE FOR A SHOWUP IDENTIFICATION (FOURTH DEPT). 31

TRIALS, JUDGES.

DEFENDANT’S FAMILY MEMBERS SHOULD NOT HAVE BEEN EXCLUDED FROM THE COURTROOM DURING THE TESTIMONY BY THE UNDERCOVER OFFICERS, CONVICTIONS REVERSED (FIRST DEPT). 32