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THE MAJORITY REJECTED THE ARGUMENT DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE A CONFRONTATION-CLAUSE CHALLENGE TO DNA EVIDENCE OFFERED BY A WITNESS WHO WAS NOT INVOLVED IN THE ANALYSIS OF THE DNA; STRONG, COMPREHENSIVE DISSENT (CT APP).

The Court of Appeals, over an extensive dissenting opinion, rejected defendant’s ineffective-assistance claim based upon defense counsel’s failure to raise a Confrontation Clause challenge to the admission of DNA evidence:

Defendant asserts that trial counsel rendered ineffective assistance by failing to argue that the admission into evidence of DNA reports through the testimony of an analyst who did not perform, witness or supervise the testing, or independently analyze the raw data, violated his constitutional right to confrontation. This argument is without merit. “Even assuming that counsel failed to assert a meritorious Confrontation Clause challenge, the alleged omission does not ‘involve an issue that [was] so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it'” … . Nor, on this record, has defendant demonstrated that the alleged error was not a matter of legitimate trial strategy … .

From the dissent:

At trial, the prosecution admitted two reports containing DNA analyses through a criminalist who testified, based on his review of the file prepared by another criminalist, that defendant’s DNA matched DNA on a screwdriver recovered from the scene of the break-in. This evidence was therefore admitted through a surrogate witness in violation of the Confrontation Clause … . The question on this appeal is whether defense counsel was ineffective for failing to raise a Confrontation Clause objection to this evidence’s admission. At the time of defendant’s trial, the law was sufficiently settled to support such an objection. Indeed, counsel recognized that the basis for the testifying criminalist’s conclusions was vulnerable to attack, as he asked the jury to reject those conclusions on the ground that the criminalist did not conduct the DNA testing. Given that the prosecution’s entire case rested upon this DNA evidence, counsel’s failure to challenge this evidence on Confrontation Clause grounds cannot be explained as a reasonable strategy. People v Espinosa, 2023 NY Slip Op 05971, CtApp 11-21-23

Practice Point: The majority concluded defense counsel’s failure to raise a confrontation-clause challenge to DNA evidence presented by a witness who was not involved in the DNA analysis did not constitute ineffective assistance. There was a strong, comprehensive dissent.

 

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DEFENDANT’S CHALLENGES TO THE INVENTORY SEARCH AND THE ADMISSION OF CERTAIN TESTIMONY HE DEEMED PREJUDICIAL, AND HIS CONSTITUTIONAL CHALLENGE TO NEW YORK’S WEAPONS-POSSESSION REGIME REJECTED (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a dissent, rejected defendant’s challenges to the inventory search and to purported prejudicial testimony allowed by the trial judge. Defendant’s constitutional challenge to New York’s weapons-possession regime rejected as unpreserved:

Defendant Carlos L. David challenges his conviction for two counts of criminal possession of a weapon in the second degree (see Penal Law § 265.03 [3]) on several grounds. He argues that the police recovered the handguns that gave rise to his conviction during an invalid inventory search, and that Supreme Court improperly allowed prejudicial testimony at his trial. Neither argument provides grounds for reversal. David additionally argues that Penal Law § 265.03 (3) is facially unconstitutional under New York State Rifle & Pistol Assn., Inc. v Bruen, 142 S Ct 2111 (2022). This argument is unpreserved, and for the reasons set forth below, we do not reach it. People v David, 2023 NY Slip Op 05970, CtApp 11-21-23

Practice Point: The constitutional challenges to New York’s weapons-possession regime rejected as unpreserved.

 

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DEFENDANT’S CHALLENGES TO RESTRICTIONS ON VOIR DIRE, HIS ARGUMENT A PRISON SENTENCE DURING COVID VIOLATED THE EIGHTH AMENDMENT, AND HIS CONSTITUTIONAL CHALLENGES TO NEW YORK’S WEAPONS-POSSESSION REGIME, REJECTED; THE DISSENT ARGUED THE PRESUMPTION OF AN INTENT TO USE AN UNLICENSED WEAPON IS UNCONSTITUTIONAL AND VOIR DIRE QUESTIONS RELATED TO GUN CONTROL AND JUSTIFICATION SHOULD HAVE BEEN ALLOWED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over an extensive dissent, rejected defendant’s challenges to his conviction:

Defendant George Garcia argues that his conviction for two counts of criminal possession of a weapon in the second degree … should be reversed because the trial court impermissibly limited questioning during voir dire. He also argues that his sentence—the statutory minimum term of 3½ years in prison—violates the Eighth Amendment given his risk of serious illness or death from COVID-19, and that the Appellate Division had the power to reduce his sentence below the statutory minimum. None of these contentions provides grounds for reversal. Garcia further argues for the first time in this Court that the statutory provisions under which he was convicted are unconstitutional in light of New York State Rifle & Pistol Assn., Inc. v Bruen, 142 S Ct 2111 (2022). These arguments are unpreserved, and for the reasons set forth in People v Cabrera (decided today), we do not reach them. * * *

From the dissent:

The presumption in Penal Law § 265.03 (1) (b) that unlicensed possession is evidence of intent to use the weapon unlawfully is unconstitutional and therefore defendant’s conviction on this count should be reversed and the count dismissed. Additionally, the court abused its discretion and prejudiced defendant by limiting defendant’s voir dire questions related to gun control and justification. Therefore, his conviction on the single other remaining charge should be reversed and a new trial ordered. People v Garcia, 2023 NY Slip Op 05969, CtApp 11-21-23

Practice Point: Constitutional arguments attacking New York’s weapons-possession regime were not preserved.

Practice Point: The Eighth Amendment challenge to a prison sentence during COVID rejected.

Practice Point: Challenges to restrictions on voir dire about gun control and justification rejected.

 

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UNWARNED STATEMENTS MADE WHEN THE POLICE APPROACHED DEFENDANT GETTING OUT OF HIS CAR AND HANDCUFFED HIM SHOULD HAVE BEEN SUPPRESSED; THE SUBSEQUENT CONSENT TO SEARCH, MADE AFTER MIRANDA WARNINGS, WAS NOT TAINTED BY THE UNWARNED CUSTODIAL QUESTIONING; DEFENDANT’S CONSTITUIONAL CHALLENGES TO NEW YORK’S GUN LICENSING REGIME WERE NOT PRESERVED (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a two-judge dissent, reversing (modifying) the Appellate Division, determined defendant was in custody when the police approached him after defendant got out of his car and handcuffed him. Statements made at that time about the presence of weapons in the car should have been suppressed. However defendant’s subsequent consent to search the car, given an hour and a half after the officers initially approached defendant and after the Miranda warnings, was not tainted by the initial custodial questioning. The dissent argued the consent to search was in fact tainted. The court rejected defendant’s constitutional arguments attacking the validity of New York’s gun-licensing regime as unpreserved:

Preservation of a constitutional challenge, in particular, “ensures that the drastic step of striking duly enacted legislation will be taken not in a vacuum but only after the lower courts have had an opportunity to address the issue and the unconstitutionality of the challenged provision has been established beyond a reasonable doubt” … . For these reasons, we have carefully guarded the preservation rule against “erosion” … . * * *

… [A] reasonable innocent person in Cabrera’s {defendant’s] position could not have felt free to leave when three law enforcement officers approached him at night, on a residential street, and handcuffed him before questioning him about the firearms in his vehicle. The level to which the police restricted Cabrera’s movement was of a degree associated with a formal arrest. Nor does the record suggest that the defendant had any reason to believe that he would be handcuffed only for a limited duration. … [T]here is no record support for the conclusion of the courts below that Cabrera was not in custody for Miranda purposes. On appeal, the People have conceded that the defendant was subject to interrogation and that they did not argue below that the public safety exception applied. Custodial status is therefore dispositive; in the absence of warnings, his statements should have been suppressed. People v Cabrera, 2023 NY Slip Op 05968, CtApp 11-21-23

Practice Point: Statements made after police approached defendant on the street and handcuffed him should have been suppressed, but the unwarned custodial questioning did not taint a subsequent consent to search given after Miranda warnings.

Practice Point: Constitutional arguments, here attacking New York’s gun-licensing regime, must be preserved before the Court of Appeals can address them.

 

THE SENTENCING COURT’S REJECTION OF YOUTHFUL-OFFENDER STATUS FOR THE DEFENDANT UPHELD (CT APP).

The Court of Appeals, affirming the Appellate Division, determined the sentencing court properly rejected youthful-offender status for the defendant. People v Rivera, 2023 NY Slip Op 05967, CtApp 11-21-23

 

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THE ROADBLOCK VEHICLE-STOP WAS VALID; THE SEARCH BASED UPON AN ODOR OF MARIJUANA WOULD NOT HAVE BEEN VALID UNDER THE MARIHUANA REGULATION AND TAXATION ACT (MRTA) BUT THE COURT REFUSED TO APPLY THE MRTA RETROACTIVELY; ONE DISSENT ARGUED DEFENDANT’S CHALLENGE TO PROHIBITING FELONS FROM OBTAINING GUN LICENSES HAD MERIT; THE OTHER DISSENT ARGUED THE ROADBLOCK PROCEDURE WAS NOT DEMONSTRATED TO BE CONSTITUTIONAL (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a single-judge dissent and a separate two-judge dissent, affirmed defendant’s conviction, finding the roadblock vehicle-stop procedure was valid and the search based upon an odor of marijuana was valid. The search would not have been valid after the Mariihuana Regulation and Taxation Act (MRTA) was enacted in 2021. The court refused to apply the MRTA retroactively. Judge Rivera’s dissenting opinion, argued defendant’s argument against the ban on felons obtaining gun licenses had merit and the matter should have been sent back to create a record. Judge Halligan’s dissent argued the constitutionality of the roadblock was not demonstrated. People v Pastrana, 2023 NY Slip Op 05966, CtApp 11-21-23

Practice Point: The Marihuana Regulation and Taxation Act (MRTA), which under certain circumstances (which were present in this case) prohibits a search based upon the odor of marijuana, does not apply retroactively.

 

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THE LIFE INSURANCE POLICY REQUIRED WRITTEN NOTICE OF ANY ASSIGNMENT OF THE POLICY; THE FAILURE TO PROVIDE WRITTEN NOTICE PRECLUDED THE ASSIGNEE FROM BRINGING A CLAIM UNDER THE POLICY AGAINST THE INSURER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, answering a question from the Second Circuit, determined the failure to give notice of the assignment of the life insurance policy precluded the assignee from suing the insurer:

The United States Court of Appeals for the Second Circuit has asked us to determine whether, where a life insurance policy provides that “assignment will be effective upon Notice” in writing to the insurer, the failure to provide such written notice voids the assignment so that the purported assignee does not have contractual standing to bring a claim under the Policy … . … [W]e reformulate the question as follows:

Where a life insurance policy provides that ‘assignment will be effective upon notice’ in writing to the insurer, does the failure to provide such written notice deprive the purported assignee of contractual standing to bring a claim under the Policy against the insurer?

We answer the reformulated question in the affirmative. Brettler v Allianz Life Ins. Co. of N. Am.2023 NY Slip Op 05958, CtApp 11-20-23

Practice Point: Here the life insurance policy required written notice to the insurer of any assignment of the policy. The failure to provide notice precluded the assignee from bringing a claim under the policy against the insurer.

 

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THE COURT OF APPEALS, OVERRULING PRECEDENT, DETERMINED THE AUTOPSY REPORTS WERE “TESTIMONIAL” IN NATURE AND SHOULD NOT HAVE BEEN ADMITTED THROUGH AN EXPERT WHO DID NOT PARTICIPATE IN THE AUTOPSIES; ADMISSION OF THE REPORTS AND THE EXPERT’S TESTIMONY VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, reversing (modifying) the Appellate Division, determined the admission of two autopsy reports through an expert witness who did not perform the autopsies, as well as the witness’s testimony, violated defendant’s right to confront the witnesses against him. The Court of Appeals overruled its decision in Frycinet (11 NY3d at 39) which concluded autopsy reports were not “testimonial” and therefore did not implicate the Confrontation Clause. The erroneous admission of the evidence here, however, was deemed harmless by both the Appellate Division and the Court of Appeals:

Pursuant to [the] Confrontation Clause, a witness’s out-of-court “testimonial” statement may only be admitted for its truth where the witness appears at trial or, if the witness is unavailable for trial, where the defendant has had a prior opportunity to cross-examine that witness (Crawford v Washington, 541 US 36, 68 [2004]). …

This Court had occasion to consider the impact of Crawford and its progeny on the admission of autopsy reports in Freycinet, where it held that a redacted autopsy report was not testimonial for purposes of the Confrontation Clause (11 NY3d at 39). In reaching this conclusion, the Court evaluated four purported “indicia of testimoniality”: (1) “the extent to which the entity conducting the procedure is an arm of law enforcement”; (2) “whether the contents of the report are a contemporaneous record of objective facts”; (3) “whether a pro-law-enforcement bias is likely to influence the contents of the report”; and (4) “whether the report’s contents are directly accusatory in the sense that they explicitly link the defendant to the crime” … . All four factors, the Court concluded, weighed in the People’s favor and thus, the autopsy report at issue was not testimonial … . * * *

We now hold that Freycinet should no longer be followed because it is inconsistent with the demands of the Confrontation Clause as articulated more recently by the Supreme Court.  * * *

… [I]t is the People’s obligation to establish that their testifying experts, who did not perform or observe the relevant autopsy, reached their conclusions themselves based upon a review of the proper materials rather than the conclusions of the performing examiner. People v Ortega, 2023 NY Slip Op 05956, CtApp 11-21-23

Practice Point: Autopsy reports are testimonial in nature and must be admitted in evidence through an expert who participated in the autopsies. The erroneous admission of the testimonial evidence was deemed harmless here, however.

 

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THE POLICE WERE ALLOWED INTO THE VESTIBULE OF A TWO-FAMILY RESIDENCE BUT WERE NOT GIVEN PERMISSION TO ENTER THE APARTMENT WHERE DEFENDANT WAS SEIZED; DEFENDANT’S SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the Appellate Division, over a three-judge dissent, determined the police were only given permission to enter the vestibule of a two-family residence, not the apartment where defendant was seized:

Well before daybreak, four armed officers knocked repeatedly on the exterior door and window of a two-family residence. Someone responded by coming to the exterior door and opening it. The officers identified themselves as police, the person moved aside, and the officers entered the vestibule. Through the doorway of the downstairs apartment, they saw the person they wished to arrest, entered that apartment, and arrested him. The question before us is whether the suppression court should have granted Mr. Cuencas’s [defendant’s] motion to suppress for lack of consent for police to enter the apartment. * * *

… [T]he officers never sought consent to enter Mr. Cuencas’s apartment — only to enter the common vestibule to speak the person who answered the exterior door. The record shows that there were separate doors inside the vestibule, one for each of the two apartments in the building, each bearing a lock, and that each door was open. When the People asked Detective Fogelman to describe how he perceived the building upon his arrival at 5:30 AM, he testified that “It may have had two apartments, an upstairs and a downstairs.” Detective Fogelman asked for consent to enter through the exterior door into the vestibule, not into either of the two apartments, and it is not disputed that Mr. Cuencas’s apartment had a door separating it from the vestibule. People v Cuencas, 2023 NY Slip Op 05974, CtApp 11-21-23

Practice Point: The person who answered the door allowed the police to enter the vestibule of a two-family residence. But consent to enter the vestibule did not constitute consent to enter the first-floor apartment where defendant was seized. The suppression motion should have been granted.

 

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PETITIONER, THE PRESIDENT AND MAJORITY STOCK HOLDER OF A CONSTRUCTION COMPANY, WAS THE “PERSON RESPONSIBLE” FOR COLLECTING AND PAYING EMPLOYEE WITHHOLDING TAXES; TWO-JUDGE DISSENT (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, affirming the New York State Tax Tribunal and the Appellate Division, determined petitioner, the president and majority shareholder of a construction company, was the person responsible for the collection and payment of employee withholding taxes:

… [P]etitioner and the dissenters argue that the Tribunal employed an incorrect legal test in making its determination, under Tax Law § 685 (g), that petitioner was a person responsible for the collection and payment of employee withholding taxes on behalf of New England Construction Company, Inc. (NECC), a corporation of which petitioner was president and the majority shareholder, and on behalf of which petitioner had repeatedly held himself out as being responsible for payment of taxes. We conclude that the Tribunal committed no such error. Rather, in resolving the question before it, the Tribunal properly considered whether petitioner had the actual authority and effective power to pay the withholding taxes and, thus, was a “responsible person” under section 685. Moreover, substantial evidence supports the Tribunal’s determination that petitioner willfully failed to pay the withholding taxes. * * *

Under Tax Law § 685 (g), a person may be held liable for the withholding taxes of a corporation if the person is “required to collect, truthfully account for, and pay over the tax imposed” and “willfully fails to collect such tax or . . . willfully attempts in any manner to evade or defeat the tax or the payment thereof.” … [S]ection 685 (g) essentially provides that “a person responsible for collecting and paying taxes withheld from employees’ wages is liable for a 100% civil penalty if [that person] willfully fails to collect and pay over the tax” … . Such a responsible person includes “an officer or employee of a corporation . . . who . . . is under a duty to perform the act in respect of which the violation occurs” … . Under the broad terms of this definition, more than one person can be a responsible person under Tax Law § 685 … . Because section 685 (g) was modeled after 26 USC § 6672 (a) … , the terms in the former are to be interpreted in conformity with the latter unless a different meaning is clearly required … . Matter of Black v New York State Tax Appeals Trib., 2023 NY Slip Op 05961, CtApp, 11-20-23

Practice Point: Tax Law 685 makes the “person responsible” for the collection and payment of employee withholding taxes civilly liable for failure to pay the tax.

 

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