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After a Mistrial in a Criminal Matter, a Prohibition Action Seeking to Bar Retrial on Double Jeopardy Grounds Must Be Brought Within Four Months of a Definitive Demonstration of the People’s Intent to Re-Prosecute

The Court of Appeals, over a concurring opinion which disagreed with the majority's grounds, determined that the four-month statute of limitations was not tolled under a “continuing harm” theory and the prohibition action was time-barred.  The trial court had declared a mistrial because, during deliberations, one of the 12 jurors was removed for misconduct.  It was clear shortly after the mistrial that the prosecution was preparing for a second trial. Two years after the mistrial was declared, the defendant brought a prohibition action seeking to prohibit the second trial on Double Jeopardy grounds:

A four-month limitations period applies to CPLR article 78 prohibition proceedings (see CPLR 217 [1]…) and the petition here was filed more than two years after the mistrial was declared. Although a tolling period for continuing harm has been recognized … and would be adopted by our concurring colleague, we reject its application in this situation. Once the People definitively demonstrated their intent to re-prosecute and the court began to calendar the case for eventual trial, Smith was obligated to initiate his Double Jeopardy-based article 78 challenge within the statutorily prescribed time frame. On the facts of this case, that period expired well before prohibition was sought, and therefore, the proceeding was barred by the statute of limitations. Matter of Smith v Brown, 2014 NY Slip OP 07090, CtApp 10-21-14

 

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“Outing” Confidential Informant Online Constituted Witness Tampering

The Court of Appeals affirmed defendant's conviction for fourth-degree witness tampering.  Defendant was present when a confidential informant purchased drugs from defendant's companion.  The transaction was videotaped.  Defendant put the surveillance tape online and identified the confidential informant on his Facebook page.  Statements on the Facebook page by the defendant and others included warnings such as “Snitches get stiches:”

The evidence, seen in the light most favorable to the People, is sufficient to establish that defendant knew that the confidential informant might testify in a proceeding, and that he wrongfully sought to stop her from doing so. After learning about Jackson's arrest and the confidential informant's role as a witness against Jackson and, potentially, himself, defendant immediately posted communications on the internet that the jury might have reasonably inferred were coded threats that were intended to induce the confidential informant not to testify. And in addition to the public postings on Facebook and YouTube, defendant was in contact via Facebook messages (which essentially act as email on the website) with the confidential informant and her mother. People v Horton, 2014 NY Slip Op 07088, Ct.App. 07088, CtApp 10-21-14

 

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Questions of Fact Raised About Whether Access to a Flat Roof through a Window and a Fall from the Roof Into an Unprotected Air Shaft Were Foreseeable

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, determined there were questions of fact about whether the applicable regulations and codes required that there be a railing around an air shaft, and whether it was foreseeable that plaintiff would gain access to the flat roof through a window and fall into the shaft.  The opinion includes a detailed description of the relevant building regulations.  With respect to foreseeability, the court wrote:

It is well settled that, as landowners, defendants have “a duty to exercise reasonable care in maintaining [their] . . . property in a reasonably safe condition under the circumstances” … . The existence and scope of this duty is, in the first instance, a legal question for the courts to determine by analyzing the relationship of the parties, whether the plaintiff was within the zone of foreseeable harm, and whether the accident was within the reasonably foreseeable risks … .

The focus of our inquiry, therefore, is whether it was foreseeable that defendants' tenants and their guests would access the setback roof and be exposed to a dangerous condition from the absence of a railing or guard around the air shaft. * * *

…[H]ere, the setback roof was flat and of sufficient size and length to comfortably permit several individuals to stand or walk on it. Access to the roof was easily obtained through the hallway window, and neither plaintiff nor his friends had any difficulty exiting. … Here, the tenant of the apartment that plaintiff was visiting testified that he had stepped onto the roof through the window approximately 15 times in the two months preceding the accident to smoke cigarettes and that the previous tenant had often done the same. According to the resident, evidence of this use was visible because cigarette butts and garbage littered the roof. On this record …reasonable minds could differ as to whether plaintiff's use of the roof and his resulting fall were foreseeable, thereby precluding the grant of summary judgment to defendants on that ground. Powers v 32 E 31 LLC, 2014 NY Slip Op 07084, CtApp 10-21-14

 

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Failure to Request Adverse Inference Jury Instruction Re: Missing Material Evidence, Under the Facts, Did Not Constitute Ineffective Assistance of Counsel

The Court of Appeals, in a full-fledged opinion by Jude Lippman, determined defense counsel's failure to request an adverse inference jury instruction did not constitute ineffective assistance of counsel.  The defendant shot four men.  He claimed the men were about to attack him with razors. A videotape which apparently would have shown the altercation had been destroyed.  The trial took place in 2009, before the ruling in People v Handy, 20 NY3d 663 (2013), which established the adverse interest charge is mandatory upon request where evidence likely to be of material importance has been destroyed by the state. The Court of Appeals found that defense counsel's failure to request the adverse inference charge, if it was a mistake, was not enough to support a claim of ineffective assistance.  Proof presented at trial was at odds with defendant's assertion he acted in self-defense:

It is well-established that the effectiveness of a representational effort is ordinarily assessed on the basis of the representation as a whole … . One error — and only one is identified here — in the context of an otherwise creditable performance by counsel generally will not suffice in support of the conclusion that the representation was not “meaningful” … or fell below the objective standard of reasonableness required by the Federal Constitution … . There are, of course, exceptional cases in which an error is so clear-cut, egregious and decisive that it will overshadow and taint the whole of the representation …, but this is not that rare sort of case. Allowing for argument's sake that counsel erred in omitting to request the charge, that lone error was not in the context of this prosecution sufficiently egregious and prejudicial to constitute a predicate for the relief now sought. The entitlement to an adverse inference charge, such as the one defendant's attorney allegedly neglected to seek, was not conclusively established until 2013 when we decided People v Handy (20 NY3d 663 [2013]). It was in Handy that we first held such a charge to be mandatory upon request “when a defendant in a criminal case, acting with due diligence, demand[ed] evidence . . . reasonably likely to be of material importance, and that evidence ha[d] been destroyed by the State” (id. at 665). Before Handy, the availability of the charge was discretionary. At the time of defendant's trial, in 2009, competent counsel would naturally have seized upon the government's unexplained failure to preserve probably material evidence to encourage an inference adverse to the prosecution and favorable to her client, precisely as defendant's trial counsel did, but there was then no legal authority absolutely entitling her client to the judicial instruction she is now faulted for not having sought (see Handy, 20 NY3d at 669-670). Perhaps it was a mistake not to seek the charge, which likely would have been given as a matter of discretion, but if it was a mistake, it was not one so obvious and unmitigated by the balance of the representational effort as singly to support a claim for ineffective assistance. * * *

We do not exclude the possibility that, post-Handy, the failure to request a Handy charge could support an ineffective assistance claim. But the viability of such a claim, conditioned upon a demonstration of prejudice attributable to counsel's inadequacy …, would depend, in crucial part, upon facts making the adverse inference Handy merely makes available at least reasonably plausible. The present facts do not meet that condition. On this record, it cannot be said that there was even a reasonable possibility, much less a reasonable probability …that the jury, if offered the opportunity, would have elected to draw an inference adverse to the prosecution as to what the missing video would have shown. People v Blake, 2014 NY Slip Op 07086, CtApp 10-21-14

 

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County Court Was Not Required to Inquire Whether Defendant Wished to Seek New Counsel—Defendant’s Counsel of Choice Was Ill and County Court Ordered the Trial to Go Forward with Substitute Counsel (Selected by Defendant’s Counsel of Choice) After Denying Defendant’s Request for an Adjournment

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissent, determined defendant was not denied the right to his counsel of choice when County Court ordered the trial to go ahead with substitute counsel (selected by defendant's counsel of choice) because defendant's counsel of choice was ill.  The case turned on its facts.  Defendant did not request an adjournment to seek new counsel.  County Court was not required to ask the defendant whether he wished to seek new counsel:

A defendant who does not require appointed counsel has a right under both Federal and State constitutions to choose who will represent him … . “The constitutional guarantee to be represented by counsel of one's own choosing is a fundamental right” … . Nevertheless, “the right to counsel of choice is qualified, and may cede, under certain circumstances, to concerns of the efficient administration of the criminal justice system” … .

In particular, we have held that a defendant may not use the right to counsel of choice “as a means to delay judicial proceedings. The efficient administration of the criminal justice system is a critical concern to society as a whole, and unnecessary adjournments for the purpose of permitting a defendant to retain different counsel will disrupt court dockets, interfere with the right of other criminal defendants to a speedy trial, and inconvenience witnesses, jurors and opposing counsel” … . In short, appellate courts must recognize “a trial court's wide latitude in balancing the right to counsel of choice against the needs of fairness and against the demands of its calendar” … .

Significantly, in the present case, defendant does not contend that he expressly requested new counsel … and that the request was wrongly denied. Rather, defendant's principal argument is that when he moved, through counsel, for adjournment, County Court was obliged to inquire of him whether he was in fact seeking new counsel. We disagree.

…[I]n this case, County Court did not violate any of defendant's constitutional rights by denying the adjournment motions without that inquiry. On the record before us on direct appeal …  no communication was made to County Court from which it would appear that defendant was asking for the opportunity to retain new counsel, or for an adjournment in the hope that [his counsel of choice] would recover quickly enough to become his trial counsel. Rather, defendant simply sought an adjournment to give [substitute counsel] more time to prepare. Under these circumstances, there was no obligation on the part of County Court to inquire as to whether defendant was seeking new counsel. People v O'Daniel, 2014 NY Slip Op 07087, CtApp 10-21-14

 

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Application of the Emergency Doctrine Presented a Mixed Question of Law and Fact which Could Not Be Reviewed by the Court of Appeals

The Court of Appeals determined that the application of the “emergency doctrine” to justify the warrantless search for and seizure of a weapon was a mixed question of law and fact which was not reviewable by the Court of Appeals.  The police responded to a call indicating the defendant had shot himself in the hand.  After the defendant had been frisked and while he his wound was being treated, police officers searched the backyard and found a weapon. The appellate division held that the search was justified by the officers' concern that the children in the house might come across the weapon.  The dissenting judge granted leave to appeal.  The Court of Appeals explained when a mixed question of law and fact is beyond that court's review:

Application of the “emergency doctrine” involves a mixed question of law and fact that is beyond this Court's review so long as there is record support for the findings of the courts below … . The Appellate Division majority and dissent both applied the test set forth in People v Mitchell (39 NY2d 173, 177-178 [1976], cert denied 426 US 953 [1976]) and reached conflicting conclusions as to when the emergency ceased. Because there is record support for the majority's conclusion that the search was lawful under the emergency exception, “'any further review is beyond this Court's jurisdiction'” … . People v Rossi, 2014 NY Slip Op 07006, CtApp 10-16-14

 

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Less Stringent “Area Variance” Criteria, Rather than the More Stringent “Use Variance” Criteria, Properly Applied to a Restaurant’s Request for a Variance Re: Off-Street Parking Requirements

The Court of Appeals, in a full-fledged opinion by Judge Read, determined when “area variance,” as opposed to “use variance,” criteria should be applied to off-street parking requirements.  The zoning board had allowed a variance from the off-street parking requirements for a restaurant under the less stringent “area variance” standard.  The petitioner, a neighboring property owner, sought a declaration that the more stringent “use variance” criteria should be applied.  The Court of Appeals disagreed with the petitioner and affirmed:

…[A]s of July 1, 1994, General City Law § 81-b (1) has defined a “use variance” as an authorization for the use of land for a purpose “otherwise not allowed or . . . prohibited” in the zoning district; and an “area variance” as an authorization to use land “in a manner which is not allowed by the dimensional or physical requirements” of the zoning regulations (see also Town Law § 267 [1]; Village Law § 7-712 [1]). Off-street parking requirements, while differing depending on use, regulate how the property's area may be developed, akin to minimum lot size or set-back restrictions. Accordingly, area variance rules apply to requests to relax off-street parking requirements so long as the underlying use is permitted in the zoning district; use variance rules prevail only if the variance is sought in connection with a use prohibited or otherwise not allowed in the district (see generally, Terry Rice, Practice Commentaries, McKinney's Cons Laws of NY, Book 61, Town Law § 267-b at 294-295).

In this case, [the restaurant] applied for an off-street parking variance in connection with a change in the storefront's use from a retail gift shop to a restaurant. Because both uses are permitted in the zoning district, the ZBA properly considered the application as a request for an area variance. Matter of Colin Realty Co LLC v Town of N Hempstead, 2014 NY Slip Op 07008, CtApp 10-16-14

 

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Speedy Trial Clock Starts On the Day the People’s Application for Leave to Appeal to the Court of Appeals Is Denied, Notwithstanding Adjournments Granted in the Lower Court

The Court of Appeals determined that the speedy trial clock started running when the People's application for leave to appeal to the Court of Appeals was denied.  The time attributable to the lower court's adjournment while the application to the Court of Appeals was pending should not have been excluded from the speedy trial calculation:

The parties do not dispute that under CPL 30.30 (5) (a) a new criminal action commenced when a Judge of this Court denied the People leave to appeal from the Appellate Term's order. The People point to the fact that, under the Criminal Procedure Law, “[i]n computing the time within which the people must be ready for trial . . . a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: . . . appeals; . . . and the period during which such matters are under consideration by the court” must be excluded (CPL 30.30 [4] [a] [emphasis added]).

The People contend therefore that the period from May 10, 2010 to August 23, 2010 is excludable, relying on People v Vukel (263 AD2d 416 [1st Dept 1999], lv denied 94 NY2d 830 [1999]), which held that when a trial court orders an adjournment for control purposes because of the pendency of a defendant's application for leave to appeal to this Court, the entire period of the adjournment is excludable under CPL 30.30 (4) (a), as time resulting from the appeal. In Vukel, the Appellate Division rejected the argument that the People have “an obligation to advance the case to an earlier date upon receiving the certificate denying leave” (id. at 417).

The mere lapse of time, following the date on which the order occasioning a retrial becomes final, does not in itself constitute a reasonable period of delay resulting from an appeal within the meaning of CPL 30.30 (4) (a). Otherwise, the People would be permitted to delay retrial for the duration of an adjournment in the trial court, no matter how lengthy, even after a Judge of our Court has denied leave to appeal, without consequence under CPL 30.30. Such a rule would be inconsistent with “the dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction” … . To the extent Vukel holds otherwise, it should not be followed. People v Wells, 2014 NY Slip Op 07012, CtApp 10-16-14

 

Resentencing Under Drug Law Reform Act Is Available to a Persistent Felony Offender As Long As the Offender Has Not Been Convicted of Any of the Serious Offenses Enumerated in Correction Law 803

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, resolved a conflict among the appellate division departments about the applicability of the Drug Law Reform Act (DLRA) to persistent felony offenders.  The court determined that the resentencing allowed by the DLRA for certain drug-related offenses is available to persistent felony offenders who have not been convicted of any of the serious crimes enumerated in Correction Law 803:

The Drug Law Reform Act of 2009 (see L 2009, ch 56, § 1, hereinafter “2009 DLRA”) provides remedial resentencing to low-level non-violent felony drug offenders who meet various basic eligibility requirements (see CPL 440.46 [1]). The 2009 DLRA, however, denies resentencing to any offender who is serving a sentence for an “exclusion offense,” which is, among other things, an “offense for which a merit time allowance is not available pursuant to [Correction Law § 803 (1) (d) (ii)]” (CPL 440.46 [5]; CPL 440.46 [5] [a] [ii]). Correction Law § 803 (1) (d) (ii), in turn, makes a merit time allowance unavailable to an offender who is serving a sentence imposed for any of the violent or sexual crimes specifically enumerated in that statute, without regard to the offender's predicate sentencing status (see Correction Law § 803 [1] [d] [ii]). That statute also prevents any offender serving a sentence “authorized for an A-I felony offense” from receiving a merit time allowance (id.), thereby denying such an allowance to anyone who has been sentenced as a persistent felony offender (see Penal Law §§ 70.02 [2] [a]; 70.02 [3] [a] [i]; 70.10 [2]).

In interpreting the language of these interlocking statutes, the Departments of the Appellate Division are divided over the proper answer to the following question: does the DLRA resentencing exclusion apply to all offenders who are ineligible to receive a merit time allowance, including those who cannot receive those allowances solely by virtue of their recidivist sentencing adjudications; or, to the contrary, does it apply only to offenders who have been convicted of certain serious crimes that are specifically listed in Correction Law § 803 (1) (d) (ii) and eliminate the possibility of a merit time allowance regardless of an offender's recidivist sentencing adjudication? We hold that the exclusion applies only to offenders who have been convicted of one or more of the serious crimes that automatically render merit time allowances unavailable under Correction Law § 803 (1) (d) (ii), and that therefore an offender who has no such conviction may be resentenced, notwithstanding his or her adjudication as a persistent felony offender. People v Coleman, 2014 NY Slip Op 07010, CtApp 10-16-2014

 

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Search of Home for Weapon Not Justified by Exigent Circumstances

The Court of Appeals, in a full-fledged opinion by Judge Pigott, reversed the appellate division, finding that exigent circumstances did not justify the search for and seizure of weapon after the suspects and all members of the household were in one room of the home under police supervision.  The police responded to gunfire, saw one of the suspects with a firearm, and used force to gain entry to the apartment into which the suspects fled:

“[S]ubject only to carefully drawn and narrow exceptions, a warrantless search of an individual's home is per se unreasonable and hence unconstitutional” … . One exception, commonly referred to as the “exigent circumstances” exception, dictates that police may act without a warrant where they possess probable cause to search but “urgent events make it impossible to obtain a warrant in sufficient time to preserve evidence or contraband threatened with removal or destruction” … . Even in such cases, however, “the scope of the conduct thus sanctioned is strictly limited by the necessities of the circumstances in which it arises” … . The People have the burden of establishing that the exigencies of the situation justified the warrantless search … .

In this instance, the People failed to meet that burden. There is no record support for the Appellate Division's conclusion that exigent circumstances justified the search of the closed box. The search was unreasonable as a matter of law because, by the time Officer Brennan opened the box, any urgency justifying the warrantless search had abated. The officers had handcuffed the men and removed them to the living room where they (and the two women) remained under police supervision. At the time Officer Brennan searched the box and discovered the gun, the police “were in complete control of the house” and “[a]ll occupants were out of commission” … . At that point, contrary to the People's contention, there was no danger that defendant would dispose of or destroy the weapon …nor was there any danger to the public or the police … .  Absent the presence of any other exception to the warrant requirement, such as a search incident to arrest or the gun being in plain view … the police were required to obtain a warrant prior to searching the box. People v Jenkins, 2014 NY Slip Op 07007, CtApp 10-16-14

 

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