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Unclear Record Re: Whether Defense Counsel Was Apprised of the Complete Contents of a Jury-Request for Instructions Combined with the Judge’s Failure to Address One Aspect of the Request Constituted a “Mode of Proceedings” Error

The Court of Appeals determined the trial judge's response to a note from the jury was a mode of proceedings error requiring the vacation of the convictions related to the note.  The note asked for the judge's directions on “Manslaughter/Murder in the Second Degree-(Intent).”  The judge did not re-read the expanded “intent” charge and the record does not indicate defense counsel was notified of the “intent” aspect of the jury note:

Here, the trial court failed to meet its core responsibilities with regard to the note. Although there is record evidence that defense counsel was made aware of the existence of the note, there is no indication that the entire contents of the note were shared with counsel. Rather, the record reflects that the court paraphrased the note for counsel and the jury, but in each instance it omitted any reference to the note's “intent” language, hardly “a fair substitute for defense counsel's own perusal of the communication” (O'Rama, 78 NY2d at 277). Although the note is ambiguous concerning whether the jury was requesting an expanded definition of the intent element or was merely asking for a read back of the homicide charges which included a definition of intent, this only substantiates defendant's argument that the court failed to meet its core responsibilities of providing defense counsel with meaningful notice and an opportunity to provide input so that the court could give the jury a meaningful response. Where the record fails to show that defense counsel was apprised of the specific, substantive contents of the note — as it is in this case — preservation is not required … . Where a trial transcript does not show compliance with O'Rama's procedure as required by law, we cannot assume that the omission was remedied at an off-the-record conference that the transcript does not refer to (id.). People v Walston, 2014 NY Slip Op 04229, CtApp 6-12-14

 

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Writs of Coram Nobis Alleging Ineffective Assistance Not Available In the Three Specific Cases Before the Court Involving the Failure to File Notices of Appeal and the Failure to Make a “Leave to Appeal” Application to the Court of Appeals

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a partial dissent, determined that a writ of coram nobis was not available to two defendants who alleged their attorneys failed to file timely notices of appeal, and to a third defendant who alleged his attorney's failure to make a criminal “leave to appeal” application to the Court of Appeals.  The opinion explains the history of the use of “writs of coram nobis” in this context. People v Andrews, 2014 NY Slip Op 04233, CtApp 6-12-14

 

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Judge’s Speaking to a Juror During Deliberations, With Defense Counsel’s Permission, Outside the Presence of the Defendant and Counsel, Was a Mode of Proceedings Error Requiring Reversal

In a full-fledged opinion by Judge Abdus-Salaam, over a dissent, the Court of Appeals determined the judge's conducting a transcribed colloquy with a juror during deliberations, outside the presence of counsel and the defendant, was a mode of proceedings error requiring reversal.  Counsel were informed that a juror wished to talk to the judge and agreed that the judge could do so their absence. Counsel and the defendant were subsequently apprised of the substance of the colloquy and given the opportunity to read the transcript. Defense counsel did not raise an objection:

A defendant's fundamental constitutional right to be present at all material stages of a trial encompasses a right to be present during the court's charge, admonishments and instructions to the jury … . This “absolute and unequivocal” right is further embodied in CPL 310.30 (Mehmedi, 69 NY2d at 760; see Collins, 99 NY2d at 17).

Under CPL 310.30, when a deliberating jury requests further instruction or clarification on the law, trial evidence, or any other matter relevant to its consideration of the case, “the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant,” the court must give such information or instruction as it deems proper (CPL 310.30…). We have consistently held that a defendant's absence during non-ministerial instructions, in violation of CPL 310.30, affects the mode of proceedings prescribed by law and presents an error of law for our review — even absent an objection or where defense counsel has consented to the procedures used.  People v Rivera, 2014 NY Slip Op 04115, CtApp 6-10-14

 

“Serious Physical Injury” Element of Gang Assault Not Supported by Legally Sufficient Evidence

The Second Department determined the evidence of the “serious physical injury” element of the gang assault charge was not supported by legally sufficient evidence:

The defendant challenges his conviction of gang assault in the first degree, asserting that the People failed to present legally sufficient evidence that [the victim] suffered a “serious physical injury,” which is defined as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00[10]). * * *

Although [the victim] was stabbed in the right flank, his wounds required no stitches, and there was no evidence that he suffered any permanent damage to his kidney, which suffered a small laceration. Moreover, when he was examined, [the victim] was oriented and alert, able to converse, and had normal vital signs and blood pressure. Further, the only evidence of protracted disfigurement or impairment of health was that he had a scar, which the jury saw, and that he felt pain on the scar. The record, however, includes no description of the scar or what, if any, limitations [the victim] suffered as a result of his injury. Thus, the People failed to adduce legally sufficient evidence that [the victim] suffered a “serious physical injury” within the meaning of Penal Law § 10.00(10), which is an element of gang assault in the first degree … . People v Mazariego, 2014 NY Slip Op 03863, 2nd Dept 5-28-14

 

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Loss of Small Portion of Stenographic Record Did Not Require Reversal

The First Department noted that the loss of some of the stenographic minutes of a trial did not require reversal. The trial court had conducted a reconstruction hearing:

The loss of a relatively small portion of the stenographic record does not require reversal of defendants’ convictions … . The court conducted a reconstruction hearing at which various participants in the trial presented their recollections, to the extent possible, of the brief portions of the trial for which minutes are not available. When viewed in light of the presumption of regularity (id. at 796), the facts adduced at the reconstruction hearing regarding the missing pages support an inference that the missing minutes would not have revealed any significant appellate issues. People v Negron, 2014 NY Slip Op 03752, 1st Dept 5-22-14

 

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Pretrial Motion to Dismiss the Accusatory Instrument, Arguing the Facts Alleged Did Not Constitute the Crime Charged, Preserved the Legal-Sufficiency Issue for Appeal, Despite the Absence of a Motion for a Trial Order of Dismissal on the Same Ground

The Court of Appeals, in a full-fledged opinion by Judge Smith, with three judges dissenting, determined defendant's pretrial motion to dismiss the charges, arguing that the facts alleged by the People did not constitute the crime charged, preserved the “legal sufficiency” issue for appeal, despite the absence of a motion for a trial order of dismissal on the same ground. The defendant was charged with trespass and resisting arrest. The defendant had permission to be on the property.  County court had dismissed the trespass conviction, but upheld the resisting arrest conviction.  The Court of Appeals determined the arresting officer, because of prior dealings with the defendant, did not have probable cause to believe the defendant was trespassing, therefore the resisting arrest charge could not stand either.  The bulk of the majority opinion, and both dissenting opinions, dealt with the preservation issue.  The majority took great pains to explain that this holding did not affect the two leading cases concerning the preservation requirements re: the insufficiency of trial evidence (People v Gray, 86 NY2d 10; People v Hines, 97 NY2d 56):

As a general matter, a lawyer is not required, in order to preserve a point, to repeat an argument that the court has definitively rejected … . When a court rules, a litigant is entitled to take the court at its word. Contrary to what the dissent appears to suggest, a defendant is not required to repeat an argument whenever there is a new proceeding or a new judge.

It is true that a challenge to the sufficiency of the accusatory instrument at arraignment is conceptually different from a challenge based on the proof at trial, and that often an issue decided in one proceeding will not be the same as the issue presented in another. But here the issue was the same. People v Finch, 2014 NY Slip Op 03424, CtApp 5-13-14

 

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Proceedings Pursuant to CPL 440.10 Required to Determine Whether Defense Counsel Was Ineffective for Failing to Move to Reopen the Suppression Hearing When Trial Evidence Called Into Question the Arresting Officer’s Credibility

The First Department, over a dissent, found that  the trial record was insufficient to determine whether defendant’s counsel was ineffective for failing to ask to reopen a suppression hearing when the trial evidence called into question the arresting officer’s credibility.  The conviction was affirmed without prejudice and the matter was sent back for further proceedings under a motion to vacate the conviction pursuant to CPL 440.10:

The issue of effective assistance of counsel is generally not reviewable on direct appeal, because it involves facts dehors the record, such as trial counsel’s strategy … . Accordingly, a defendant who seeks to bring an ineffective assistance of counsel claim usually must first expand the record by way of a CPL 440.10 motion before this Court can consider it … . However, there are rare instances where the full record is sufficient to resolve the issue of counsel’s effectiveness without a 440.10 motion … . This is not one of those rare cases.  * * *

The extant record potentially supports a finding that counsel fundamentally misunderstood the necessity of making the motion to reopen the suppression hearing during trial, rather than waiting for a motion to set aside the verdict, in the event of a conviction. Defense counsel’s remarks at sentencing, seemingly prompted by the court’s denial of the motion to set aside the verdict, were a belated attempt to explain counsel’s failure to move to reopen the hearing. Whether defense counsel was effective or not necessarily requires an evaluation of the credibility and logic of the proffered explanation, that defense counsel was afraid he would “lose that jury” and that he believed the witness “was on the ropes.” Although defense counsel may have genuinely been hopeful that the jury would acquit his client, this explanation cannot be accepted at face value. After all, as the trial court’s decision indicates, had defense counsel timely moved to reopen the suppression hearing, the application would have been granted, and the court could have quickly ruled upon it while giving the jury a short recess. The “witness” referred to was the arresting officer, and was available. On the other hand, there may have been legitimate concerns about the jury undeveloped on this record. In short, we cannot decide on the extant record whether defense counsel’s failure to move to reopen the hearing was truly “strategic.”  People v Medina-Gonzalez, 2014 NY Slip Op 02531, 1st Dept 4-15-14

 

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Weight of the Evidence Review Required Reversal

The Second Department determined the defendant’s conviction was not supported by the weight of the evidence—there were too many unexplained problems in the People’s proof:

Although great deference is accorded the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor …, objective facts, which were not adequately explained, cast doubt upon the officers’ credibility, including the loss of the arresting officer’s memo book, the fact that the ammunition allegedly retrieved from the gun was only submitted to the police laboratory for analysis five days after the gun was submitted for analysis, and the fact that a photograph of the gun was exhibited in the precinct with a caption referring to a white lie. Further, the eyewitness who initially called the police to the scene testified at the trial that the man involved in the incident was not the defendant, and that the police arrested the wrong man. Upon the exercise of our factual review power (see CPL 470.15), we find that the rational inferences which can be drawn from the evidence presented at trial do not support the conviction beyond a reasonable doubt. Thus, the judgment must be reversed and the indictment dismissed… . People v Battle, 2014 NY Slip Op 02447, 2nd Dept 4-9-14

 

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Waiver of Appeal Invalid

The Second Department determined defendant’s waiver of his right to appeal, which included a written waiver, was invalid:

A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” … . ” Though a trial court need not engage in any particular litany’ or catechism in satisfying itself that a defendant had entered a knowing, intelligent and voluntary appeal waiver, a trial court must make certain that a defendant’s understanding’ of the waiver . . . is evident on the face of the record” … . Further, it must be made clear to the defendant that an appeal waiver ” is separate and distinct from those rights automatically forfeited upon a plea of guilty'” … . “A detailed written waiver can supplement a court’s on-the-record explanation of what a waiver of the right to appeal entails, but a written waiver does not, standing alone, provide sufficient assurance that the defendant is knowingly, intelligently and voluntarily giving up his or her right to appeal as a condition of the plea agreement'” … .

Here, although the defendant executed a written waiver of his right to appeal, the defendant’s understanding of the appeal waiver is not evident on the face of the record due to the deficiency of the oral colloquy conducted by the Supreme Court in light of the absence of any mention of the waiver during the discussion of the terms of the plea. After the plea agreement had been reached, the court told the defendant that “[b]efore I accept your plea, you need to sign a waiver of your right to appeal.” First, the court’s “terse colloquy [which included this mandatory-sounding language] at the plea allocution failed to sufficiently advise the defendant of the nature of his right to appeal” … . Second, the court suggested that the right to appeal is automatically forfeited upon pleading guilty when it advised the defendant that the written appeal waiver “tells me you understand the rights you have waived by pleading guilty” … . Accordingly, under these circumstances, including the defendant’s relative inexperience with the criminal justice system …, the defendant’s appeal waiver was invalid … .  People v Pressley, 2014 NY Slip Op 02461, 2nd Dept 4-9-14

 

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Appeals Not Pursued for a Decade or More Properly Dismissed

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined, with respect to three of four defendants, dismissal of the appeals was appropriate. The appeals were not pursued for more than a decade, in one case more than two decades, after the filing of the notices of appeal, and the excuses for inaction were found insufficient.  With respect to the fourth defendant, counsel had never reviewed the record. Therefore, defendant’s right to appellate counsel had not been honored. The matter was sent back for the appointment of appellate counsel and submissions, after which the motion to dismiss the appeal could be properly considered.  People v Perez, 2014 NY Slip Op 02326, CtApp 4-3-13

 

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