Criminal Law Update May 2019

Criminal Law Update May 2019

Course #CRM0353 (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: 1 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 May 1, 2019 and May 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 May 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 1 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 May 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 May 2019

Criminal Law Update May 2019 Attorney Affirmation

Criminal Law Update May 2019 Evaluation Survey

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

ACCESSORIAL LIABILITY, APPEALS.

THERE WAS LEGALLY INSUFFICIENT EVIDENCE DEFENDANT SHARED THE CO-DEFENDANT’S INTENT TO KILL, IN ADDITION, DEFENDANT’S CONVICTION UNDER AN ACCESSORIAL LIABILITY THEORY WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT). 6

ADOPTIVE ADMISSIONS, JAIL PHONE CALLS.

DEFENDANT’S PHONE CONVERSATION WITH HIS MOTHER SHOULD NOT HAVE BEEN ADMITTED AS AN ADOPTIVE ADMISSION, SENTENCE FOR CRIMINAL POSSESSION OF A WEAPON SHOULD HAVE BEEN CONCURRENT WITH THE SENTENCE FOR MURDER (SECOND DEPT). 7

ATTORNEYS, INEFFECTIVE ASSISTANCE, SPEEDY TRIAL.

DEFENSE COUNSEL MISCALCULATED THE NUMBER OF DAYS OF DELAY ATTRIBUTABLE TO THE PEOPLE IN THE SPEEDY TRIAL MOTION, WHICH CONSTITUTED INEFFECTIVE ASSISTANCE, CONVICTION REVERSED, INDICTMENT DISMISSED (FIRST DEPT). 8

ATTORNEYS, CONFLICT OF INTEREST.

DEFENDANT PLED GUILTY TO THE CHARGES IN TWO INDICTMENTS, WITH RESPECT TO ONE OF THE INDICTMENTS, COUNSEL WHO NEGOTIATED THE PLEA OFFER HAD BEEN RELIEVED AS DEFENSE COUNSEL BECAUSE OF A CONFLICT OF INTEREST, CONVICTIONS REVERSED (SECOND DEPT). 8

ATTORNEYS, INEFFECTIVE ASSISTANCE.

DEFENDANT’S PAPERS SUFFICIENTLY RAISED A QUESTION WHETHER HE WAS DENIED HIS RIGHT TO EFFECTIVE COUNSEL BECAUSE OF COUNSEL’S CONFLICT OF INTEREST, DENIAL OF DEFENDANT’S MOTION TO VACATE HIS CONVICTION WITHOUT A HEARING WAS AN ABUSE OF DISCRETION (CT APP). 9

AUTOMOBILE EXCEPTION, SEARCHES.

AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT APPLIES TO PARKED UNOCCUPIED CARS, SMELL OF MARIHUANA (FROM OUTSIDE THE CLOSED UNOCCUPIED CAR) PROVIDED PROBABLE CAUSE TO SEARCH THE CAR, OFFICER’S SUBJECTIVE INTENT TO SEARCH THE CAR BEFORE HE SMELLED THE MARIHUANA IS IRRELEVANT (THIRD DEPT). 10

CELL SITE LOCATION DATA, WARRANT REQUIREMENT.

CELL SITE LOCATION INFORMATION (CSLI) SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE BECAUSE IT WAS PROCURED WITHOUT A WARRANT, ERROR HARMLESS HOWEVER, SENTENCES FOR CRIMINAL SEXUAL ACT AND CRIMINAL IMPERSONATION SHOULD HAVE BEEN CONCURRENT (SECOND DEPT). 11

CROSS-EXAMINATION, POLICE OFFICERS, CIVIL SUIT.

DEFENDANT WAS PROPERLY PROHIBITED FROM CROSS-EXAMINING A POLICE OFFICER ABOUT FALSE ARREST AND POLICE BRUTALITY LAWSUITS FILED AGAINST THE OFFICER (SECOND DEPT). 12

DARDEN HEARING REQUIRED.

PROBABLE CAUSE FOR THE SEARCH OF AN APARTMENT DEPENDED UPON INFORMATION FROM THE CONFIDENTIAL INFORMANT, A DARDEN HEARING WAS THEREFORE NECESSARY, MATTER REMITTED FOR THE HEARING (SECOND DEPT). 13

EXCITED UTTERANCES.

911 CALL MADE FIVE MINUTES AFTER THE ASSAULT PROPERLY ADMITTED AS AN EXCITED UTTERANCE, AN EXCEPTION TO THE HEARSAY RULE (SECOND DEPT). 13

GUILTY PLEAS, JUDGES, KNOWING AND VOLUNTARY, APPEALS.

ALTHOUGH THE ARGUMENT WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE, DEFENDANT INDICATED HE DID NOT UNDERSTAND THE NATURE OF THE CRIME TO WHICH HE PLED GUILTY BUT THE JUDGE MADE NO FURTHER INQUIRY, THE PLEA WAS THEREFORE NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTERED (FOURTH DEPT). 14

INCLUSORY CONCURRENT COUNTS.

INCLUSORY CONCURRENT COUNTS OF THE AGGRAVATED VEHICULAR HOMICIDE CONVICTIONS SHOULD HAVE BEEN DISMISSED (SECOND DEPT). 15

INDICTMENTS, NOT AUTHORIZED.

THE COURT DID NOT AUTHORIZE THE SECOND SUPERSEDING INDICTMENT PROCURED BY THE PEOPLE AFTER A MISTRIAL, THE SECOND SUPERSEDING INDICTMENT WAS A NULLITY, CONVICTION REVERSED (THIRD DEPT). 15

JUDGES, DIRECT NEGOTIATION OF PLEA DEAL.

THE TRIAL JUDGE’S NEGOTIATION OF A PLEA DEAL DIRECTLY WITH THE CO-DEFENDANT, IN RETURN FOR THE CO-DEFENDANT’S ESSENTIAL TESTIMONY IDENTIFYING THE DEFENDANT AS ONE OF THE ROBBERS DEPICTED IN A VIDEO, DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (CT APP). 16

JURY INSTRUCTIONS, JUSTIFICATION DEFENSE.

BECAUSE THE DEFENDANT DREW HIS GUN BEFORE THE UNARMED VICTIM “SWIPED” AT IT, THE DEFENDANT WAS THE INITIAL “DEADLY FORCE” AGGRESSOR AND WAS NOT ENTITLED TO THE JUSTIFICATION-DEFENSE JURY INSTRUCTION (CT APP). 17

JURY INSTRUCTIONS, WRITTEN INSTRUCTIONS, DANGEROUS INSTRUMENT.

PROVIDING WRITTEN INSTRUCTIONS TO THE JURY OVER DEFENDANT’S OBJECTION REQUIRED REVERSAL AND A NEW TRIAL, HOT LIQUID CAN BE A DANGEROUS INSTRUMENT WITHIN THE MEANING OF THE PENAL LAW (FIRST DEPT). 18

JURY INSTRUCTIONS, JUSTIFICATION DEFENSE.

THE MAJORITY DID NOT RULE OUT THE POSSIBILITY THAT THE NON-DEADLY-FORCE JUSTIFICATION-DEFENSE JURY INSTRUCTION COULD BE APPROPRIATE IN A SECOND DEGREE ASSAULT CASE, BUT HELD THAT GIVING THE DEADLY-FORCE JUSTIFICATION-DEFENSE INSTRUCTION WAS NOT ERROR HERE (CT APP). 18

JURY NOTES, RECONSTRUCTION HEARING.

JURY NOTE FOUND IN THE COURT FILE BY APPELLATE COUNSEL WAS, AFTER A RECONSTRUCTION HEARING, DETERMINED TO HAVE BEEN A DRAFT WHICH WAS DISCARDED BY THE JURY, AS OPPOSED TO A NOTE OF WHICH COUNSEL SHOULD HAVE BEEN NOTIFIED, THEREFORE THE PROHIBITION OF RECONSTRUCTION HEARINGS WITH RESPECT TO THE HANDLING OF JURY NOTES DID NOT APPLY (CT APP). 19

JURY SELECTION, FOR CAUSE CHALLENGE.

DEFENDANT’S FOR CAUSE CHALLENGE TO A PROSPECTIVE JUROR WHO SAID HE WAS ‘NOT SURE’ HE COULD BE IMPARTIAL SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (FIRST DEPT). 20

JURY SELECTION, BATSON CHALLENGES.

IN THE FACE OF BATSON CHALLENGES, THE FACTS THAT A JUROR HAD SERVED ON A HUNG JURY AND WORKED AT A SOUP KITCHEN AND ANOTHER JUROR WORKED FOR A COMMUNITY ORGANIZATION HELPING HIV-POSITIVE DRUG USERS WERE DEEMED VALID, RACE-NEUTRAL REASONS FOR STRIKING THE JURORS, THE CONCURRENCE NOTED THESE REASONS WERE BASED UPON QUESTIONABLE ASSUMPTIONS (FIRST DEPT) 21

MENTAL HYGIENE LAW, SEX OFFENDERS.

EVIDENCE THAT DEFENDANT SEX OFFENDER SUFFERS FROM UNSPECIFIED PARAPHILIC DISORDER (USPD) MAY BE ADMISSIBLE IN AN ARTICLE 10 TRIAL, THE EVIDENCE WAS EXCLUDED BELOW, VERDICT VACATED AND PETITION REINSTATED (FIRST DEPT). 22

PAROLE, CIVIL CONTEMPT FINDING AGAINST PAROLE BOARD CHAIR.

FINDING OF CIVIL CONTEMPT AGAINST THE CHAIR OF THE NYS PAROLE BOARD WAS WARRANTED, ALTHOUGH ORDERED TO CONDUCT A DE NOVO HEARING ON PETITIONER-INMATE’S APPLICATION FOR RELEASE ON PAROLE, THE EVIDENCE SUPPORTED THE CONCLUSION THAT THE BOARD DENIED PAROLE BASED ON THE SEVERITY OF THE OFFENSE ALONE, WITHOUT CONSIDERING THE STRONG FACTORS WHICH FAVORED RELEASE (SECOND DEPT). 23

PAROLE.

PAROLE BOARD DID NOT CONSIDER PETITIONER’S YOUTH AT THE TIME OF THE OFFENSES AND APPEARS TO HAVE DENIED PETITIONER’S APPLICATION FOR RELEASE ON PAROLE SOLELY BASED ON THE SERIOUSNESS OF THE OFFENSES, DE NOVO INTERVIEW IN FRONT OF A DIFFERENT PANEL ORDERED (SECOND DEPT). 24

PAROLEES, SEARCHES, REASONABLE SUSPICION.

PAROLE OFFICER’S SEARCH OF PAROLEE’S APARTMENT, BASED UPON A TIP FROM A PERSON KNOWN TO THE PAROLE OFFICER, WAS SUPPORTED BY REASONABLE SUSPICION, TWO-JUSTICE DISSENT (THIRD DEPT). 25

SANDOVAL, JUDGES.

TRIAL JUDGE ALLOWED THE PROSECUTOR TO QUESTION DEFENDANT ABOUT THE FACTS UNDERLYING PRIOR CONVICTIONS IN VIOLATION OF THE SANDOVAL RULING, CONVICTIONS REVERSED (SECOND DEPT). 26

SEALING, HARVEY WEINSTEIN TRIAL.

MOLINEUX/SANDOVAL HEARING IN THE HARVEY WEINSTEIN SEXUAL MISCONDUCT PROSECUTION WAS PROPERLY CLOSED TO THE PUBLIC AND THE RECORD OF THE HEARING WAS PROPERLY SEALED, NEWS-MEDIA COMPANIES’ PETITION TO UNSEAL THE RECORD DENIED (FIRST DEPT). 27

SEARCHES, EMERGENCY EXCEPTION.

THE WARRANTLESS SEARCH OF A HOME TO RETRIEVE A HANDGUN DEFENDANT HAD THROWN UNDER A CHAIR IN THE PRESENCE OF THE POLICE WAS NOT JUSTIFIED UNDER ANY EXCEPTION TO THE WARRANT REQUIREMENT, THE PLAIN VIEW DOCTRINE DID NOT APPLY BECAUSE THE OFFICER DID NOT KNOW WHAT THE DEFENDANT HAD THROWN UNDER THE CHAIR, THE EMERGENCY EXCEPTION DID NOT APPLY BECAUSE THE DEFENDANT WAS IN CUSTODY WHEN THE OFFICER REENTERED THE HOME TO LOOK UNDER THE CHAIR (SECOND DEPT). 28

SENTENCING, JUDGES, SENTENCE-COMMITMENT, PRESENTENCE REPORT, APPEALS.

WAIVER OF APPEAL INVALID, COURT NOT BOUND BY PURPORTED COMMITMENT TO A PARTICULAR SENTENCE AT THE TIME OF THE PLEA, PRESENTENCE REPORT INADEQUATE, SENTENCE REVERSED (SECOND DEPT). 29

SEX OFFENDER REGISTRATION ACT (SORA), JUDGES, DUE PROCESS.

JUDGE’S SUA SPONTE ASSESSMENT OF POINTS ON A GROUND OF WHICH THE DEFENDANT WAS NOT NOTIFIED VIOLATED DEFENDANT’S DUE PROCESS RIGHT TO NOTICE AND AN OPPORTUNITY TO RESPOND (FOURTH DEPT). 30

SEX OFFENDER REGISTRATION ACT (SORA), AUTOMATIC OVERRIDE.

THE TERM ‘AUTOMATIC OVERRIDE’ DOES NOT MANDATE THAT AN OFFENDER WITH A PRIOR SEX-CRIME FELONY BE CLASSIFIED A LEVEL THREE SEX OFFENDER, BOTH COUNTY COURT AND DEFENSE COUNSEL MISUNDERSTOOD THE TERM (THIRD DEPT). 31

STATEMENTS. MIRANDA, HANDCUFFS.

STATEMENTS MADE BY THE DEFENDANT WHEN HE WAS HANDCUFFED IN THE BACK SEAT OF A POLICE CAR SHOULD HAVE BEEN SUPPRESSED, TANGIBLE EVIDENCE RETRIEVED AS A RESULT OF THE STATEMENTS SHOULD HAVE BEEN SUPPRESSED AS WELL (SECOND DEPT). 32

STREET STOPS, DE BOUR.

HAVING DEFENDANT WAIT WITH TWO POLICE OFFICERS WHILE A THIRD TOOK HIS ID TO AN APARTMENT TO VERIFY DEFENDANT’S CLAIM HE WAS VISITING A FRIEND IN THE APARTMENT WAS NOT JUSTIFIED UNDER DE BOUR, CONVICTION REVERSED (CT APP). 32

SUPERIOR COURT INFORMATION.

THE SUPERIOR COURT INFORMATION TO WHICH DEFENDANT PLED GUILTY WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE AN OFFENSE CHARGED IN THE FELONY COMPLAINT OR A LESSER INCLUDED OFFENSE (THIRD DEPT). 33

VICTIM WITNESS PROTECTION ACT.

NEITHER THE VICTIM WITNESS PROTECTION ACT NOR THE MANDATORY VICTIM RESTITUTION ACT PROVIDES A PRIVATE RIGHT OF ACTION FOR A JUDGMENT BASED SOLELY UPON RESTITUTION ORDERED IN A CRIMINAL CASE (FIRST DEPT). 34

YOUTHFUL OFFENDERS, JUDGES.

SENTENCING COURT MUST MAKE A THRESHOLD DETERMINATION WHETHER DEFENDANT IS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS IN THIS FIRST DEGREE RAPE CASE, SENTENCE VACATED (THIRD DEPT). 35