Criminal Law Update March 2019

Criminal Law Update March 2019

Course #CRM0351 (Transitional) 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 March 1, 2019 and March 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 March 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 March 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.

Civil Procedure Update Pamphlet March 2019

Criminal Law Update March 2019 Attorney Affirmation

Criminal Law Update March 2019 Evaluation Survey

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

APPEALS, INSUFFICIENT RECORD, GRAVITY KNIFE.

ALTHOUGH THE OPERATION OF THE KNIFE WAS DEMONSTRATED AT TRIAL, THERE WAS NO RECORD EVIDENCE THAT THE KNIFE POSSESSED BY DEFENDANT WAS A GRAVITY KNIFE, RELATED CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT). 5

ARREST, HANDCUFFS, NO PROBABLE CAUSE.

HANDCUFFING THE DEFENDANT PENDING IDENTIFICATION BY THE UNDERCOVER OFFICER AMOUNTED AN ARREST WITHOUT PROBABLE CAUSE, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FIRST DEPT). 5

ATTEMPT, MURDER.

DEFENDANT’S INSTRUCTING ANOTHER TO KILL HIS WIFE AND HER MOTHER DID NOT COME NEAR ENOUGH TO ACCOMPLISHING MURDER TO SUPPORT THE ATTEMPTED MURDER CONVICTIONS (FOURTH DEPT). 6

ATTORNEYS, APPEALS, INEFFECTIVE ASSISTANCE.

DEFENDANT WAS NOT AFFORDED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, DESPITE COUNSEL’S LIMITED COMMUNICATION WITH DEFENDANT, COUNSEL’S NOT ACTING UNTIL THE APPEAL WAS ON THE DISMISSAL CALENDAR, AND COUNSEL’S SUBMISSION OF A MINIMAL BRIEF WITH SIX LINES OF TEXT IN THE STATEMENT OF FACTS AND NO CITATIONS TO THE RECORD, WHICH INCLUDED A 4000 PAGE TRIAL TRANSCRIPT (CT APP) 7

ATTORNEYS, RIGHT TO COUNSEL.

DEFENDANT WAS HOUSED FIVE HOURS AWAY FROM THE COURT AND HIS ATTORNEY, REPEATED REQUESTS TO MOVE DEFENDANT CLOSER WERE GRANTED BUT NOT COMPLIED WITH, DEFENDANT MOVED TO WITHDRAW HIS PLEA AT SENTENCING, GIVEN THE POSSIBILITY DEFENDANT HAD EFFECTIVELY BEEN DEPRIVED OF HIS RIGHT TO COUNSEL, INQUIRY INTO THE VOLUNTARINESS OF OF THE PLEA SHOULD HAVE BEEN CONDUCTED (SECOND DEPT). 8

ATTORNEYS, INEFFECTIVE ASSISTANCE, MOTION TO VACATE JUDGMENT.

HEARING NECESSARY ON THAT ASPECT OF DEFENDANT’S MOTION TO VACATE THE JUDGMENT OF CONVICTION WHICH ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL, DEFENDANT ALLEGED DEFENSE COUNSEL TOLD THE JURY DEFENDANT WOULD TESTIFY WITHOUT FIRST CONSULTING WITH DEFENDANT (FOURTH DEPT). 9

COMPETENCY.

CONFLICTING PSYCHIATRIC EVALUATIONS REQUIRED A COMPETENCY HEARING, EVEN IF ONE OF THE PSYCHIATRISTS HAD CHANGED HIS OR HER MIND (THIRD DEPT). 10

DARDEN HEARING, EVIDENCE.

THE PEOPLE DID NOT PRESENT EXTRINSIC EVIDENCE AT THE DARDEN HEARING THAT THE INFORMANT EXISTED, THEREFORE THE SUPPRESSION MOTION WAS GRANTED AND THE INDICTMENT DISMISSED (FOURTH DEPT). 11

DNA, MOTION FOR TESTING, MOTION TO VACATE JUDGMENT.

PEOPLE DEMONSTRATED THE RAPE KIT AND BLOOD AND SALIVA EVIDENCE RELATED TO A 1988 PROSECUTION HAD BEEN DESTROYED AND DEFENDANT DID NOT DEMONSTRATE THE AVAILABILITY OF THE EVIDENCE WOULD HAVE CHANGED THE VERDICT, MOTION FOR DNA TESTING AND MOTION TO VACATE THE CONVICTION PROPERLY DENIED (FIRST DEPT). 12

GUILTY PLEAS, SENTENCE-PROMISE.

INABILITY TO IMPOSE THE PROMISED SENTENCE REQUIRED THAT DEFENDANT’S GUILTY PLEA BE VACATED (FIRST DEPT). 13

IDENTIFICATION, ATTORNEYS, PROSECUTORIAL MISCONDUCT, APPEALS.

EVIDENCE DEFENDANT’S STEPFATHER APOLOGIZED TO THE ROBBERY VICTIM FOR THE DEFENDANT’S ACTIONS AND THE TESTIMONY ABOUT AN ANONYMOUS INFORMANT’S IDENTIFICATION OF THE DEFENDANT SHOULD NOT HAVE BEEN ADMITTED, PROSECUTOR SHOULD NOT HAVE ENCOURAGED INFERENCE OF GUILT BASED ON FACTS NOT IN EVIDENCE, APPELLATE ISSUES CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT). 13

IDENTIFICATION.

SHOWUP IDENTIFICATION TESTIMONY SUPPRESSED, CONVICTIONS REVERSED (FOURTH DEPT). 14

INDICTMENTS, AMENDEMENT.

AMENDMENT OF THE INDICTMENT ON THE EVE OF TRIAL CHANGED THE THEORY OF PROSECUTION FROM ACTUAL POSSESSION OF A WEAPON TO CONSTRUCTIVE POSSESSION OF A WEAPON, CONVICTION REVERSED (SECOND DEPT). 15

JAIL PHONE CALLS.

RECORDED JAIL PHONE CALLS MAY NOT HAVE RELATED TO THE OFFENSE WHICH WAS THE SUBJECT OF THE TRIAL, CONVICTION REVERSED (SECOND DEPT). 16

JURY INSTRUCTIONS, CROSS-RACIAL IDENTIFICATION.

CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, ERROR HARMLESS HOWEVER (FIRST DEPT). 16

SEARCHES, CONSENT.

POLICE ENTERED HOME ILLEGALLY AND OBTAINED CONSENT TO SEARCH BY MISLEADING THE OCCUPANT, MOTION TO SUPPRESS PROPERLY GRANTED (FOURTH DEPT). 17

SENTENCING, ILLEGAL, APPEALS.

PERIOD OF POSTRELEASE SUPERVISION CAN NOT BE IMPOSED ON AN INDETERMINATE SENTENCE, ILLEGAL SENTENCE CONSIDERED ON APPEAL EVEN THOUGH THE ISSUE WAS NOT RAISED BY EITHER PARTY (FOURTH DEPT). 18

SENTENCING, ILLEGAL, APPEALS, ELECTRONIC MONITORING.

SENTENCING COURT DID NOT MAKE THE APPROPRIATE FINDINGS FOR THE IMPOSITION OF ELECTRONIC MONITORING, MATTER SENT BACK, BECAUSE THE LEGALITY OF THE SENTENCE IS IMPLICATED THE ISSUE NEED NOT BE PRESERVED FOR APPEAL (FOURTH DEPT). 18

SENTENCING, JUVENILE OFFENDER.

SURCHARGE, DNA DATABANK FEE, CRIME VICTIM ASSISTANCE FEE SHOULD NOT HAVE BEEN ASSESSED AGAINST A JUVENILE OFFENDER (FOURTH DEPT). 19

SEX OFFENDER REGISTRATION ACT (SORA), INSUFFICIENT EVIDENCE OF CONTINUING COURSE OF CONDUCT.

DEFENDANT SHOULD NOT HAVE BEEN ASSESSED 20 POINTS FOR A CONTINUING COURSE OF SEXUAL MISCONDUCT, PROOF OF A SECOND INSTANCE OF SEXUAL MISCONDUCT WAS INSUFFICIENT, AN ALLEGATION IN AN INDICTMENT IS NOT, BY ITSELF, EVIDENCE THE INCIDENT OCCURRED (THIRD DEPT). 20

STANDING TO SUPPRESS DROPPED WEAPON, CROSS-EXAMINATION OF POLICE OFFICER RE: CIVIL SUIT

MOTION TO SUPPRESS SHOULD NOT HAVE BEEN DENIED ON THE GROUND THAT DEFENDANT LACKED STANDING, OTHER GROUNDS FOR SUPPRESSION NOT RAISED BELOW COULD NOT BE CONSIDERED ON APPEAL, DEFENSE COUNSEL SHOULD NOT HAVE BEEN PRECLUDED FROM CROSS-EXAMINING A POLICE OFFICER ABOUT A CIVIL SUIT AGAINST HIM (FIRST DEPT). 21

STREET STOPS, DEBOUR, SUPPRESSION OF DISCARDED WEAPON.

DEFENDANT’S FLIGHT WHEN APPROACHED BY POLICE IN PLAINCLOTHES AND DRIVING AN UNMARKED CAR DID NOT JUSTIFY PURSUIT, MOTION TO SUPPRESS WEAPON DISCARDED BY THE DEFENDANT SHOULD HAVE BEEN GRANTED (FIRST DEPT). 22

STREET STOPS, REASONABLE GROUNDS TO PULL OVER VEHICLE.

POLICE OFFICER HAD REASONABLE GROUNDS TO PULL OVER PETITIONER’S CAR AFTER THE CAR CROSSED THE FOG LINE WITH A BLINKER ON AND THEN MOVED BACK INTO THE LANE, REVOCATION OF DRIVER’S LICENSE FOR FAILURE TO SUBMIT TO A CHEMICAL TEST AFFIRMED (CT APP). 23

STREET STOPS, INCREDIBLE AS A MATTER OF LAW.

POLICE OFFICER’S ALLEGED OBSERVATION OF A DRUG DEAL WAS DEEMED INCREDIBLE AS A MATTER OF LAW, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, INDICTMENT DISMISSED (SECOND DEPT). 24

STREET STOPS, STOP AND FRISK, 42 USC 1983.

STOP AND ARREST OF PLAINTIFF PURSUANT TO NYC’S STOP AND FRISK POLICY STATED VALID CAUSES OF ACTION PURSUANT TO 42 USC 1983 AGAINST THE POLICE OFFICERS AND THE CITY (FIRST DEPT). 25

STREET STOPS, REASONABLE SUSPICION TO PULL OVER VEHILCE.

TRAFFIC STOP WAS SUPPORTED BY REASONABLE SUSPICION DESPITE THE DMV COMPUTER IMPOUNDMENT RECORD’S CAUTIONARY STATEMENT THAT THE VEHICLE SHOULD NOT BE CONSIDERED STOLEN (FOURTH DEPT). 26

TRIAL IN ABSENTIA.

COURT DID NOT CONSIDER THE APPROPRIATE FACTORS BEFORE PROCEEDING TO TRIAL IN DEFENDANT’S ABSENCE, DEFENDANT HAD MADE ALL PRIOR APPEARANCES AND NO EFFORT WAS MADE TO SECURE HIS PRESENCE AT THE TRIAL (THIRD DEPT). 27

YOUTHFUL OFFENDERS.

DEFENDANT WAS 17 WHEN HE COMMITTED THE CRIMES AND WAS CONVICTED OF MURDER IN 1992, THAT CONVICTION WAS OVERTURNED AND DEFENDANT PLED GUILTY TO MANSLAUGHTER IN 2016, ALTHOUGH DEFENDANT WAIVED HIS RIGHT TO APPEAL, HE WAS ENTITLED TO CONSIDERATION OF WHETHER HE SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS (FOURTH DEPT). 28