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Plea Colloquy of Co-Defendant Was Inadmissible Hearsay—Court’s Granting of Defendant’s Request to Have the Colloquy Read to the Jury Over Defense Counsel’s Objection Deprived Defendant of His Right To Counsel

The First Department reversed defendant’s conviction because the court granted the defendant’s request to read co-defendant’s plea colloquy to the jury over defense counsel’s objection.  The colloquy was inadmissible hearsay.  Defense counsel alone can determine what evidence is introduced on defendant’s behalf:

Defendant’s constitutional right of confrontation was violated when the court read the transcript of the codefendant’s guilty plea allocution to the jury. The codefendant’s statements by which she inculpated defendant, were testimonial hearsay by a nontestifying declarant, whom defendant did not have a prior opportunity to cross-examine (see Crawford v Washington, 541 US 36 [2004]).

The People’s argument that the Confrontation Clause was inapplicable because defendant himself introduced the evidence is unavailing. Although defendant personally requested the introduction of the evidence, he was not appearing pro se. Defendant was represented by counsel throughout the case, and there was no form of hybrid representation. The decision to introduce evidence was not a fundamental decision reserved to defendant, but a strategic or tactical decision for his attorney … . Thus, defendant was deprived of his right to counsel when the court admitted the evidence solely based on his own request, over his attorney’s vigorous and consistent opposition … . People v Lee, 2014 NY Slip Op 06374, 1st Dept 9-25-14

 

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Motion to Vacate Convictions Granted—People Failed to Provide “Brady” Material In Time for the Defense to Make Meaningful Use of It

The Second Department, pursuant to a CPL 440 motion, vacated the defendants’ convictions because of the People’s failure to turn over documents which would have aided the defense (a “Brady” violation).  Although the documents were provided at the time of jury selection, they were mixed in with a large volume of other documents which effectively deprived the defense of notice of their existence.  There was a “reasonable probability” the documents, had they been used at trial to impeach police witnesses, would have changed the outcome of the trial:

The People have an obligation to disclose exculpatory evidence, known as Brady material, in their possession which is favorable to the defendant and material to his or her guilt or innocence (see Brady v Maryland, 373 US 83, 87…). Such evidence is to be produced regardless of whether a defendant requests the material … . The prosecutor’s duty to exchange Brady material extends to the disclosure of evidence that can be used to impeach the credibility of a witness for the People whose testimony may be determinative of the defendant’s guilt … . Such material is to be turned over to the defendant in time for him or her to use it in a meaningful fashion during cross-examination or as evidence during his or her own case … .

In order to establish a Brady violation, a defendant must prove: (1) the evidence at issue is favorable to him or her; (2) the evidence was suppressed by the State, either willfully or inadvertently; and (3) prejudice ensued because the suppressed evidence was material … . As to the element of materiality, where there was only a general request by the defendant at the time of trial for exculpatory material, evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different … . Here, the manner in which the prosecution turned over the documents, during the course of jury selection, deprived the defendants of a meaningful opportunity to employ that evidence during their cross-examination of the prosecution’s witnesses … . People v Wagstaffe, 2014 NY Slip Op 06217, 2nd Dept 9-17-14

 

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Defense Counsel Should Have Been Allowed to Cross-Examine Cooperating Accomplice/Witness to Demonstrate Motivation and Bias

The First Department, in a full-fledged opinion by Justice Acosta, determined that the curtailment of cross-examination of a cooperating witness deprived defendant of his right to confront the witnesses against him.  Four were charged in a robbery.  One of the four, referred to as “M,” entered a cooperation agreement and testified against the defendant. Defense counsel was prohibited from asking M a line of questions intended to reveal M’s motivation and bias:

Here, defendant sought … [to question] M. in an attempt to cast doubt on his credibility by revealing his bias and motive to fabricate testimony. Defense counsel’s theory was that M. had implicated defendant in the prior uncharged robberies in order to bolster the value of his cooperation agreement with the People. This was unquestionably an appropriate trial strategy, since “exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination” … . That M. intended to invoke his Fifth Amendment privilege and refuse to answer the questions does not abrogate defendant’s Sixth Amendment right of confrontation. As an accomplice witness, M.’s credibility, bias, and motive to fabricate were not collateral issues … . Therefore, defense counsel should have been permitted to question him on the prior crimes. If he subsequently invoked his Fifth Amendment privilege, the trial court should have gone as far as striking all or some of his direct testimony … . At a minimum, the court should have pursued the “least drastic relief” (typically reserved for “collateral matters or cumulative testimony concerning credibility”) by instructing the jury that it could consider M.’s invocation of the Fifth Amendment in determining his credibility … . People v McLeod, 2014 NY Slip Op 05926, 1st Dept 8-21-14

 

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Allowing the Prosecutor to Tell the Jury in Summation that the Person Who Provided the Police with a Tip Must Have Identified the Defendant as the Perpetrator Was Reversible Error—The Prosecutor Effectively Told the Jury Another “Witness” Had Identified the Defendant, But that “Witness” Did Not Testify and Could Not, Therefore, Be Cross-Examined

The Second Department reversed defendant’s conviction because the prosecutor, in summation, had improperly been allowed to tell the jury that the person who provided the police with a tip must have identified the defendant as the perpetrator.  Because the person who provided the tip did not testify, the defendant was effectively deprived of the opportunity to cross-examine a “witness against him:”

During summation, the prosecutor strongly implied that whoever had provided the tip had implicated the defendant: “Someone calls 577-TIPS . . . . [The detective] gets this information and where does he go? 82-01 Rockaway Beach Boulevard, make a left out of the elevator. I’m looking for a guy named Rick who lives on the sixth floor. Ricardo Benitez.” After defense counsel’s objection to this remark was overruled, the prosecutor continued: “Gave Detective Lopez the following address. 82-01 Rockaway Beach Boulevard, 6B. Rick. Ladies and gentlemen, I introduce you to Rick.” Defense counsel again objected, but the Supreme Court again overruled the objection.

The only purpose of the prosecutor’s improper comments was to suggest to the jury, in this one-witness identification case, that the complainant was not the only person who had implicated the defendant in the commission of the robbery (see People v Mendez, 22 AD3d 688, 689). Moreover, in overruling defense counsel’s objections, the Supreme Court “legitimized” the prosecutor’s improper remarks (People v Lloyd, 115 AD3d 766, 769). The defendant, of course, was given no opportunity to cross-examine the unnamed witness who had allegedly provided the tip … . The evidence against the defendant was not overwhelming, so there is no basis for the application of harmless error analysis … . To the extent that the defendant failed to preserve the claim by specific objection, we reach the issue in the exercise of our interest of justice jurisdiction, and reverse the judgment … . People v Benitez, 2014 NY Slip Op 05890, 2nd Dept 8-20-14

 

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Failure to Move to Sever Unrelated Counts of Indictment Constituted Ineffective Assistance of Counsel

The Second Department determined defense counsel’s failure to move to sever unrelated counts of the indictment constituted ineffective assistance of counsel:

In this case, based solely on the complainant’s identification, the defendant and his codefendant were charged with robbery in the first degree and robbery in the second degree in connection with a robbery that occurred on November 6, 2005. The same indictment also separately charged the defendant with four drug offenses and resisting arrest, stemming from his arrest at his mother’s home on January 16, 2006, despite the fact that the drug and resisting arrest charges had no connection to the November 6, 2005, robbery. Defense counsel failed to make an on-the-record pretrial motion to sever the robbery charges from the other charges and did not raise the issue at trial, and the defendant was tried on all counts in the indictment. * * *

As a result of defense counsel’s error, the same jury that heard evidence regarding the robbery also heard voluminous evidence concerning the defendant’s arrest and the large quantity of drugs found in his mother’s home. Consequently, the jury could have inferred that the robbery at issue was committed for a drug-related purpose, and it is probable that the improper joinder tainted the jury’s evaluation of the separate, unrelated incidents … . Under the circumstances presented here, the defendant was deprived of the effective assistance of counsel, based on defense counsel’s failure to make a proper pretrial motion to sever the charges of robbery from the drug charges. People v Hall, 2014 NY Slip Op 05802, 2nd Dept 8-13-14

 

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Defense Counsel’s Failure to Request that the Jury Be Charged with an Affirmative Defense to Robbery First (Weapon Was Not Capable of Being Discharged) Constituted Ineffective Assistance

The Second Department determined defense counsel’s failure to request that the jury be charged with an affirmative defense constituted ineffective assistance:

…[T]he defendant was deprived of the effective assistance of counsel, under both the federal and state constitutions, as a result of his trial counsel’s failure to request that the trial court submit to the jury the affirmative defense to robbery in the first degree that the object that appeared to be a firearm was not a loaded weapon from which a shot, capable of producing death or other serious physical injury, could be discharged (see Penal Law § 160.15[4]…). “[T]he New York State constitutional standard for the effective assistance of counsel is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case'” … . Thus, denial of a defendant’s fundamental right to counsel generally requires reversal of the conviction and a new trial… . People v Collins, 2014 NY Slip Op 05555, 2nd Dept 7-30-14

 

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Confusing Jury Instruction Re: the Justification Defense Required Reversal of Murder Conviction in the Interest of Justice/Defendant’s Attorney Should Have Been Allowed to Testify at the Suppression Hearing—There Was a Question of Fact Whether the Attorney Called and Told the Police He Represented the Defendant and Defendant Should Not Be Questioned

The First Department reversed defendant's murder conviction in the interests of justice because of a confusing jury instruction.  The trial court did not make it clear to the jurors that the use of deadly force can be justified in defense of a robbery.   The First Department also noted that defendant's lawyer should have been allowed to testify at the suppression hearing because it was alleged the lawyer called the police station, informed officer Risorto he was representing defendant, and told officer Risorto the defendant should not be questioned:

In its main charge, the court instructed the jury that “[t]he only difference between the law of self-defense to repel a robbery as opposed to assault [is that] in repelling the robbery, the person has no duty to retreat.” This is an incorrect statement of the law because it ignores an additional critical difference between the two grounds for justification, namely, that deadly physical force may be permissible to defend against a robbery even if the alleged robber is using only physical force, and not deadly physical force (see People v Fuller, 74 AD2d at 879 [“a person is justified in using deadly physical force if he reasonably believed it necessary to use such force in order to resist his victim's imminent use of [mere] physical force against himself, in the course of a robbery attempt”]; People v Davis, 74 AD2d 607, 609 [2d Dept 1980] [jury should have been told that the defendant was justified in using deadly physical force if he reasonably believed it necessary to do so to resist the imminent use of physical force against him in the course of a robbery attempt]). The court's error was exacerbated when it repeated this erroneous statement in response to a jury note requesting further instructions on the defense of justification. * * *

The Court of Appeals has held that “an attorney enters a criminal matter and triggers the indelible right to counsel when the attorney . . . notifies the police that the suspect is represented by counsel” … . Once the police have reason to know that the suspect is represented by counsel in the case under investigation, the right to counsel cannot be waived unless the suspect does so in the presence of counsel … . An attorney does not need to enter the case in person, but can communicate his representation to the police by phone, “at which point the police are required to cease all questioning” … .

Here, the court erred in precluding defense counsel from testifying about the critical conversation with Risorto. The police testimony, along with defense counsel's affirmation, raised questions as to what defense counsel actually said to Risorto and, in particular, whether defense counsel told Risorto that he “represented” defendant in the case for which defendant was to be questioned. The court should not have made a factual finding that implicitly accepted Risorto's account, without giving defendant the opportunity to challenge that account. People v McTiernan, 2014 NY Slip Op 05363, 1st Dept 7-17-14

 

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Insufficient Proof of Value of Stolen Property, Evidence of Prior Crimes Improperly Admitted, Identification Testimony Improperly Admitted, Prosecutor Improperly Vouched for Witnesses—New Trial Ordered

In reversing the defendant’s grand larceny conviction, the Fourth Department determined the evidence of the value of the property was “conclusory” consisting only of “rough estimates” and was therefore legally insufficient.  The court also determined evidence of uncharged crimes and identification testimony should not have been admitted, and noted the prosecutor improperly vouched for the credibility of prosecution witnesses. With respect to the uncharged crimes and identification evidence, the court wrote:

…[W]e agree with defendant that County Court erred in allowing the People to introduce evidence concerning an uncharged burglary to prove his identity as the perpetrator of the burglary and petit larceny charged in the indictment. The instant crime is “not so unique as to allow admission of evidence of the [uncharged burglary] on the theory of the similarity of the modus operandi” … . The court further erred in admitting the testimony of a witness who identified defendant in an out-of-court photo array procedure and thereafter identified him in court. The People failed to satisfy their obligation pursuant to CPL 710.30 inasmuch as no statutory notice was given by the People with respect to their intent to offer “testimony regarding an observation of the defendant at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such” (CPL 710.30 [1]…). The errors in admitting evidence of the uncharged burglary and the identification of defendant are not harmless, considered singularly or in combination, inasmuch as the proof of defendant’s guilt is not overwhelming, and there is a significant probability that the jury would have acquitted defendant had it not been for either of the errors… . People v Walker, 2014 NY Slip Op 05254, 4th Dept 7-11-14

 

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Prosecutor’s Remarks In Summation Required Reversal

The Third Department determined the prosecutor’s remarks in summation required reversal:

Counsel is afforded wide latitude in advocating for his or her case during summation, but “[t]here are certain well-defined limits” that may not be exceeded … . Here, the prosecutor strayed beyond those parameters by, among other things, repeatedly making remarks that impermissibly shifted the burden of proof from the People to defendant … . He described defense counsel’s summation as “throwing mud,” which he characterized as something done by people who “don’t have a reasonable excuse as to crimes that they’ve committed” — thus not only denigrating the theory of defense, but suggesting that it was defendant’s affirmative burden to present such an excuse. He then averred that nothing in the trial record established that defendant had not committed the alleged acts. * * * He stated that, in order to find defendant not guilty, jurors would have to believe that police officers were engaged in a scheme whereby they staged audio recordings of the controlled buys and planted evidence on defendant to frame him, referencing a comedy skit in which police purportedly got away with mistreating people “by sprinkling drugs on them.” * * *

The prosecutor also repeatedly and improperly expressed his personal opinion in an effort to vouch for the credibility of witnesses …. . When discussing a forensic chemist’s testimony that the substances allegedly sold and possessed by defendant were heroin, the prosecutor stated that the issue was “done” and that it was “a closed case.” He repeatedly described his witnesses as honest or declared that they had told the truth. He told the jury to take the male CI’s word for what had happened during one of the controlled buys, adding that he “believe[d] that [the male CI] was more than credible.”* * *  People v Casanova, 2014 NY Slip Op 04978, 3rd Dept 7-3-14

 

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Defense Counsel’s Failure to Object to Considerable Testimony About Prior Consistent Statements Made by the Victim Concerning Alleged Sexual Abuse Did Not Constitute Ineffective Assistance of Counsel

The Fourth Department, over a strong two-justice dissent, determined defendant’s motion to set aside the verdict based upon ineffective assistance of counsel was properly denied.   The complainant was allowed to describe prior consistent statements she made about the alleged incidents of sexual abuse. In addition, the People’s expert was allowed to testify about those prior consistent statements.  Defendant’s trial counsel did not object to that testimony and she indicated she had no strategic purpose in failing to object.  The majority determined the prior consistent statements were admissible because they completed a narrative.  The dissent noted that no cases supporting the introduction of prior consistent statements to complete a narrative were found.  In the opinion of the dissenters, the prior consistent statements constituted inadmissible bolstering and defense counsel’s failure to object to them constituted ineffective assistance:

… [O]ur dissenting colleagues conclude that defense counsel was ineffective by failing to object to the testimony of the victim that she reported to her mother at age six that defendant had touched her in a sexual manner; that she reported to her sister at age 14 that defendant had raped her; and that she told a police witness and the grand jury what she told the jury during her testimony. We respectfully disagree with that conclusion. Although the dissent correctly notes that the repetition of prior consistent statements may “give to a jury an exaggerated idea of the probative force of a party’s case” … , here, the victim’s testimony constituted a narrative of events. Indeed, she did not repeat the specific allegations of her testimony, i.e., that defendant had engaged in anal penetration … . In light of defense counsel’s opening statement that the relationship between defendant, the victim and the victim’s mother was such that it could “cause someone to make fake allegations,” the narrative of events was relevant. We also disagree with our dissenting colleagues that defense counsel’s failure to object to the prosecutor’s remarks during summation referencing that testimony constitutes ineffective assistance of counsel. Because the remarks were a fair response to defense counsel’s summation challenging the credibility of the victim and her motivation for making the accusations …, we conclude that the failure of defense counsel to object to those comments does not constitute ineffective assistance of counsel … . People v Gross, 2014 NY Slip Op 04592, 4th Dept 6-20-14

 

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