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FAILURE TO READ JURY NOTE INTO RECORD REQUIRED REVERSAL.

The Fourth Department, over an extensive dissent, determined the trial court erred when it did not read the contents of a jury note into the record. The note said the jury “was not sure what to do:”

The record establishes that a jury note marked as court exhibit 8 stated that “[w]e have made decision on the Third Count we are having hard time with 1 and 2 just giving you are [sic] status.” Soon thereafter, a jury note marked as court exhibit 9 stated that “[w]e have arrived on decision on 2 and 3, but we have a lot of work to do on #1. I don[‘]t see it being quick. Not sure what to do. We ars [sic] starting to make way.” * * *

Our dissenting colleague concludes that the jury’s statement, “[n]ot sure what to do,” was a ministerial inquiry concerning the logistics of the jury’s deliberations, i.e., the jury was asking whether it should continue deliberating that evening considering the late hour. We agree that the note could be interpreted that way, but we conclude that it also could be interpreted as it was interpreted by the court, i.e., the jury was having difficulty reaching a unanimous verdict and was making a substantive inquiry for guidance concerning further deliberations. In response to the note, the court issued an Allen-type charge. Quite simply, even if we consider all the surrounding circumstances, the jury note was ambiguous, and we must resolve that ambiguity in defendant’s favor .. . People v Morrison, 2017 NY Slip Op 02324, 4th Dept 3-24-17

 

CRIMINAL LAW (FAILURE TO READ JURY NOTE INTO RECORD REQUIRED REVERSAL)/JURY NOTE (CRIMINAL LAW, FAILURE TO READ JURY NOTE INTO RECORD REQUIRED REVERSAL)

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DEFENDANT WAS ENTITLED TO SEVERANCE FROM THE CODEFENDANTS, CODEFENDANTS TOOK AN AGGRESSIVE ADVERSERIAL STANCE AGAINST DEFENDANT AT TRIAL, NEW TRIAL ORDERED.

The Fourth Department determined defendant’s trial for criminal possession of a weapon should have been severed from the trial of his codefendants for the same offense. At trial the codefendants alleged it was defendant who possessed the weapon:

We conclude that the codefendants’ respective attorneys “took an aggressive adversarial stance against [defendant at trial], in effect becoming a second [and a third] prosecutor” … . We further conclude that the ” essence or core of the defenses [were] in conflict, such that the jury, in order to believe the core of one defense, . . . necessarily [had to] disbelieve the core of the other’ ” … . Thus, in retrospect … , there was “a significant danger . . . that the conflict alone would lead the jury to infer defendant’s guilt,” and therefore severance was required … . People v Mcguire, 2017 NY Slip Op 02206, 4th Dept 3-24-17

CRIMINAL LAW (DEFENDANT WAS ENTITLED TO SEVERANCE FROM THE CODEFENDANTS, CODEFENDANTS TOOK AN AGGRESSIVE ADVERSERIAL STANCE AGAINST DEFENDANT AT TRIAL, NEW TRIAL ORDERED)/SEVERANCE (CRIMINAL LAW, DEFENDANT WAS ENTITLED TO SEVERANCE FROM THE CODEFENDANTS, CODEFENDANTS TOOK AN AGGRESSIVE ADVERSERIAL STANCE AGAINST DEFENDANT AT TRIAL, NEW TRIAL ORDERED)

DIFFERENT OFFENSE DATES IN THE SUPERIOR COURT INFORMATION REQUIRED DISMISSAL.

The Fourth Department determined the superior court information (SCI) must be dismissed because it did not charge the same offenses which were charged in the written waiver of indictment (different dates):

Here, the felony complaint charged defendant with the commission of robbery in the first degree “on or about the 2nd day of 2011,” i.e., January 2, 2011. The written waiver of indictment, however, specified that defendant waived his right to indictment with respect to the commission of robbery in the first degree on February 2, 2012, and the SCI itself charged defendant with the commission of robbery in the first degree on February 2, 2011. Inasmuch as robbery is a single-act offense … , the January 2, 2011 robbery charged in the felony complaint was a ” different crime entirely’ ” from both the February 2, 2012 robbery set forth in the waiver of indictment and the February 2, 2011 robbery charged in the SCI … . Indeed, “the [dates] set forth in the [three] instruments,” i.e., the felony complaint, the waiver of indictment, and the SCI, “exclude any possibility that they were based on the same criminal conduct” … . The SCI therefore violates CPL 195.20 and must be dismissed as jurisdictionally defective … .

The SCI is also jurisdictionally defective inasmuch as it violates CPL 200.15, which provides in relevant part that a “superior court information . . . shall not include an offense not named in the written waiver of indictment.” That “express prohibition” was violated here … , inasmuch as the SCI included an offense, i.e., a robbery in the first degree committed on February 2, 2011 that was not set forth in the written waiver of indictment, which identified only a robbery in the first degree committed on February 2, 2012. People v Walker, 2017 NY Slip Op 02200, 4th Dept 3-24-17

 

CRIMINAL LAW (DIFFERENT OFFENSE DATES IN THE SUPERIOR COURT INFORMATION REQUIRED DISMISSAL)/SUPERIOR COURT INFORMATION (DIFFERENT OFFENSE DATES IN THE SUPERIOR COURT INFORMATION REQUIRED DISMISSAL)/INDICTMENT, WAIVER OF (DIFFERENT OFFENSE DATES IN THE SUPERIOR COURT INFORMATION REQUIRED DISMISSAL)

AMENDMENT OF INDICTMENTS CHARGING A COURSE OF SEXUAL CONDUCT TO CHARGES WHICH REQUIRE A UNANIMOUS VERDICT WITH RESPECT TO A PARTICULAR ACT DEPRIVED DEFENDANT OF HIS RIGHT TO BE TRIED ONLY ON THE CRIMES CHARGED.

The Fourth Department, reversing defendant’s convictions, determined the indictments were improperly amended after trial:

We agree with defendant … that the court erred in granting the People’s motion to amend the indictments at the close of proof. The fact that defendant consented to the amendments is of no moment because he has ” a fundamental and nonwaivable right to be tried only on the crimes charged’ ” … . “An indictment may not be amended in any respect which changes the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed it” … . Unlike the crimes charged in the amended indictments, the crimes of course of sexual conduct against a child in the first degree and predatory sexual assault against a child based upon allegations that defendant committed a course of sexual conduct against a child in the first degree as charged in the initial indictments do not criminalize a specific act, and thus do not require jury unanimity with respect to a specific act … . For that reason, we conclude that the amendments of the indictments “resulted in an impermissible substantive change in the indictment[s] by adding new counts that changed the theory of the prosecution” … . We therefore reverse the judgments insofar as they convicted defendant on those counts, and dismiss those counts of the amended indictments without prejudice to the People to re-present any appropriate charges under those counts to another grand jury. People v Vickers, 2017 NY Slip Op 02183, 4th Dept 3-24-17

CRIMINAL LAW (AMENDMENT OF INDICTMENTS CHARGING A COURSE OF SEXUAL CONDUCT TO CHARGES WHICH REQUIRE A UNANIMOUS VERDICT WITH RESPECT TO A PARTICULAR ACT DEPRIVED DEFENDANT OF HIS RIGHT TO BE TRIED ONLY ON THE CRIMES CHARGED)/INDICTMENT, AMENDMENT OF (AMENDMENT OF INDICTMENTS CHARGING A COURSE OF SEXUAL CONDUCT TO CHARGES WHICH REQUIRE A UNANIMOUS VERDICT WITH RESPECT TO A PARTICULAR ACT DEPRIVED DEFENDANT OF HIS RIGHT TO BE TRIED ONLY ON THE CRIMES CHARGED)

IF POSSIBLE, A RECONSTRUCTION HEARING MUST BE HELD TO DETERMINE DEFENDANT’S COMPETENCY AT THE TIME HE ENTERED A GUILTY PLEA, IF A HEARING CANNOT BE HELD THE PLEA MUST BE VACATED.

The Fourth Department determined a reconstruction hearing should be held to determine whether defendant was competent to stand trial in 2008 when he entered a guilty plea. If a reconstruction hearing cannot be held, the plea should be vacated. At the time of the plea two examining psychiatrists came to opposite conclusions about defendant’s competency. Yet the guilty plea was accepted without holding a competency hearing:

“Article 730 of the Criminal Procedure Law sets out the procedures courts of this State must follow in order to prevent the criminal trial of [an incompetent] defendant” … . The CPL expressly provides that, “[w]hen the examination reports submitted to the court show that the psychiatric examiners are not unanimous in their opinion as to whether the defendant is or is not an incapacitated person, . . . the court must conduct a hearing to determine the issue of capacity” … . “That section is mandatory and not discretionary” … , and a plea of guilty cannot be accepted unless the requisite hearing is held and the defendant is found competent … . People v Pett, 2017 NY Slip Op 02178, 4th Dept 3-24-17

CRIMINAL LAW (IF POSSIBLE, A RECONSTRUCTION HEARING MUST BE HELD TO DETERMINE DEFENDANT’S COMPETENCY AT THE TIME HE ENTERED A GUILTY PLEA, IF A HEARING CANNOT BE HELD THE PLEA MUST BE VACATED)/VACATE CONVICTION, MOTION TO (IF POSSIBLE, A RECONSTRUCTION HEARING MUST BE HELD TO DETERMINE DEFENDANT’S COMPETENCY AT THE TIME HE ENTERED A GUILTY PLEA, IF A HEARING CANNOT BE HELD THE PLEA MUST BE VACATED)/COMPETENCY (CRIMINAL LAW, (IF POSSIBLE, A RECONSTRUCTION HEARING MUST BE HELD TO DETERMINE DEFENDANT’S COMPETENCY AT THE TIME HE ENTERED A GUILTY PLEA, IF A HEARING CANNOT BE HELD THE PLEA MUST BE VACATED)

BOTH THE GRAND JURY AND THE TRIAL JURY SHOULD HAVE BEEN INSTRUCTED ON THE DEFENSE OF INNOCENT POSSESSION OF A WEAPON, INDICTMENT DISMISSED.

The Fourth Department determined the both the grand jury and the trial jury should have been instructed on the defense of innocent possession of a weapon. The indictment was dismissed:

We agree with defendant … that reversal is required because Supreme Court erred in denying his request for a jury instruction on the defense of temporary innocent possession of the handgun. In order for a defendant to be entitled to such an instruction, “there must be proof in the record showing a legal excuse for having the weapon in [one’s] possession as well as facts tending to establish that, once possession [was] obtained, the weapon [was not] used in a dangerous manner” … . Here, there were such facts. Defendant testified that he briefly struggled with a man who threatened him with a gun in front of his wife’s residence and, in the struggle, the gun fell to the ground. According to defendant’s testimony, after the assailant fled the scene, defendant picked up the gun from the street and immediately handed it to his wife, who then brought it into the home and hid it in the bedroom. * * *

We agree with defendant that the integrity of the grand jury proceeding was impaired, and we thus dismiss the two counts of the indictment of which defendant was convicted, without prejudice to the People to re-present any appropriate charges under those counts to another grand jury … . The prosecutor is required to instruct the grand jury on the law with respect to matters before it … . If the prosecutor fails to instruct the grand jury on a defense that would eliminate a needless or unfounded prosecution, the proceeding is defective, mandating dismissal of the indictment … . People v Graham, 2017 NY Slip Op 02175, 4th Dept 3-24-17

 

CRIMINAL LAW (BOTH THE GRAND JURY AND THE TRIAL JURY SHOULD HAVE BEEN INSTRUCTED ON THE DEFENSE OF INNOCENT POSSESSION OF A WEAPON, INDICTMENT DISMISSED)/WEAPON, POSSESSION (BOTH THE GRAND JURY AND THE TRIAL JURY SHOULD HAVE BEEN INSTRUCTED ON THE DEFENSE OF INNOCENT POSSESSION OF A WEAPON, INDICTMENT DISMISSED)/GRAND JURY (BOTH THE GRAND JURY AND THE TRIAL JURY SHOULD HAVE BEEN INSTRUCTED ON THE DEFENSE OF INNOCENT POSSESSION OF A WEAPON, INDICTMENT DISMISSED)/DEFENSES (CRIMINAL LAW, BOTH THE GRAND JURY AND THE TRIAL JURY SHOULD HAVE BEEN INSTRUCTED ON THE DEFENSE OF INNOCENT POSSESSION OF A WEAPON, INDICTMENT DISMISSED)

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION, BASED UPON NEWLY DISCOVERED EVIDENCE IN THE FORM OF A DECLARATION AGAINST PENAL INTEREST, SHOULD HAVE BEEN GRANTED.

The Fourth Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction based upon newly discovered evidence of third party culpability should have been granted. The statement at issue was admissible as a declaration against penal interest:

As a preliminary matter, it is well settled that a “less stringent standard [of admissibility] applies, where, as here, the declaration is offered by defendant to exonerate himself rather than by the People, to inculpate him” … . Furthermore, the statements attributed to the third party “all but rule[] out a motive [for the third party] to falsify” the statement that it was he, and not defendant, who shot the victim … . Thus, in determining whether there is evidence constituting “sufficient supportive evidence of a declaration against penal interest[,] . . . [t]he crucial inquiry focuses on the intrinsic trustworthiness of the statement as confirmed by competent evidence independent of the declaration itself . . . Supportive evidence is sufficient if it establishes a reasonable possibility that the statement might be true. Whether [the hearing] court believes the statement to be true is irrelevant . . . If the proponent of the statement is able to establish this possibility of trustworthiness, it is the function of the jury alone to determine whether the declaration is sufficient to create reasonable doubt of guilt” … .

We conclude that defendant provided sufficient competent evidence at the 440.10 hearing to establish the “possibility of trustworthiness” of the third party’s statement to satisfy the requirement that the statement was a declaration against penal interest. In addition to the trial testimony that the third party was engaged in a dispute with the victim, the third party admitted to the defense investigator that he was present and engaged in a dispute with the victim and that he wrote the letters to defendant’s former attorney. Thus, we conclude that the third party is unavailable and that his alleged statement is “supported by independent proof indicating that it is trustworthy and reliable” and thus that it is a statement against penal interest … . Furthermore, the statement is “clearly exculpatory of the defendant” … . We therefore conclude that defendant met his burden of establishing, by a preponderance of the evidence … , that the third party’s statement against penal interest was not available at the time of defendant’s trial and “is of such a character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” … . People v Mcfarland, 2017 NY Slip Op 02194, 4th Dept 3-24-17

 

CRIMINAL LAW (DEFENDANT’S MOTION TO VACATE HIS CONVICTION, BASED UPON NEWLY DISCOVERED EVIDENCE IN THE FORM OF A DECLARATION AGAINST INTEREST, SHOULD HAVE BEEN GRANTED)/EVIDENCE (DECLARATION AGAINST INTEREST, DEFENDANT’S MOTION TO VACATE HIS CONVICTION, BASED UPON NEWLY DISCOVERED EVIDENCE IN THE FORM OF A DECLARATION AGAINST INTEREST, SHOULD HAVE BEEN GRANTED)/CONVICTION, MOTION TO VACATE (DEFENDANT’S MOTION TO VACATE HIS CONVICTION, BASED UPON NEWLY DISCOVERED EVIDENCE IN THE FORM OF A DECLARATION AGAINST INTEREST, SHOULD HAVE BEEN GRANTED)/DECLARATION AGAINST INTEREST (DEFENDANT’S MOTION TO VACATE HIS CONVICTION, BASED UPON NEWLY DISCOVERED EVIDENCE IN THE FORM OF A DECLARATION AGAINST INTEREST, SHOULD HAVE BEEN GRANTED)

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IN THIS DRUG OFFENSE TRIAL, COURT SHOULD NOT HAVE ALLOWED IMPEACHMENT OF DEFENDANT WITH EVIDENCE OF PRIOR DRUG-RELATED CONVICTIONS.

Although the error was deemed harmless, the Fourth Department determined the People should not have been allowed, in this drug-offense trial, to impeach defendant with evidence of his prior drug-related convictions:

We agree with defendant that the court abused its discretion in ruling that the People could impeach him using his prior drug-related convictions and their underlying facts. In determining whether the People may impeach a defendant using prior criminal acts, a court must balance the probative value of the evidence on the issue of credibility against the risk of undue prejudice, as measured by the potential impact of the evidence and the possibility that its introduction would deter defendant from testifying in his or her defense (see People v Sandoval, 34 NY2d 371, 376-377). Certain factors should be considered, such as the prior conviction’s temporal proximity, the degree to which the prior conviction bears upon the defendant’s truthfulness, and the extent to which the prior conviction may be taken as evidence of the defendant’s propensity to commit the crime charged (see id.). It is well recognized that ” in the prosecution of drug charges, interrogation as to prior narcotics convictions . . . may present a special risk of impermissible prejudice because of the widely accepted belief that persons previously convicted of narcotics offenses are likely to be habitual offenders’ ” … . Here, the record reveals that the court considered only the temporal proximity of the prior convictions and defendant’s willingness to place his interests above those of society in general … . There is no indication that the court considered the special risk that defendant’s prior drug-related convictions might be taken by the jury as evidence of his propensity to commit the crime charged … . People v Brown, 2017 NY Slip Op 02190, 4th Dept 3-24-17

CRIMINAL LAW (IN THIS DRUG OFFENSE TRIAL, COURT SHOULD NOT HAVE ALLOWED IMPEACHMENT OF DEFENDANT WITH EVIDENCE OF PRIOR DRUG-RELATED CONVICTIONS)/EVIDENCE (CRIMINAL LAW, SANDOVAL, IN THIS DRUG OFFENSE TRIAL, COURT SHOULD NOT HAVE ALLOWED IMPEACHMENT OF DEFENDANT WITH EVIDENCE OF PRIOR DRUG-RELATED CONVICTIONS)/SANDOVAL (IN THIS DRUG OFFENSE TRIAL, COURT SHOULD NOT HAVE ALLOWED IMPEACHMENT OF DEFENDANT WITH EVIDENCE OF PRIOR DRUG-RELATED CONVICTIONS)

ATTEMPTED ASSAULT IN THE FIRST DEGREE COULD NOT SERVE AS A PREDICATE FOR CONVICTION OF CRIMINAL USE OF A FIREARM IN THE SECOND DEGREE.

The Fourth Department noted that attempted assault in the first degree cannot serve as a predicate for conviction of criminal use of a firearm in the second degree:

… [T]he use or display of the firearm while committing the class C felony of attempted assault in the first degree cannot serve as the predicate for his conviction of criminal use of a firearm in the second degree inasmuch as the use or display of that same firearm satisfied an element of attempted assault in the first degree … . Although defendant failed to preserve that contention for our review … , we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]), and we modify the judgment by reversing that part convicting him of criminal use of a firearm in the second degree and dismissing that count of the indictment. People v Butler, 2017 NY Slip Op 02186, 4th Dept 3-24-17

CRIMINAL LAW (ATTEMPTED ASSAULT IN THE FIRST DEGREE COULD NOT SERVE AS A PREDICATE FOR CONVICTION OF CRIMINAL USE OF A FIREARM IN THE SECOND DEGREE)/ASSAULT (ATTEMPTED ASSAULT IN THE FIRST DEGREE COULD NOT SERVE AS A PREDICATE FOR CONVICTION OF CRIMINAL USE OF A FIREARM IN THE SECOND DEGREE)/FIREARM, CRIMINAL USE OF (ATTEMPTED ASSAULT IN THE FIRST DEGREE COULD NOT SERVE AS A PREDICATE FOR CONVICTION OF CRIMINAL USE OF A FIREARM IN THE SECOND DEGREE)

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DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR.

In the context of a suit against the county, the Fourth Department determined the deliberative process privilege (also called the inter-agency or intra-agency materials exception) which applies to documents requested under the Freedom of Information Law does not apply to discovery request under the CPLR:

Both the CPLR and FOIL provide for disclosure of documents. The former controls discovery between litigants in court proceedings, and the latter permits disclosure of governmental records to the public even in the absence of litigation. “When a public agency is one of the litigants, this means that it has the distinct disadvantage of having to offer its adversary two routes into its records” … . The deliberative process privilege or exemption under FOIL seeks “to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers” … . While some courts have applied that privilege outside the FOIL context … , we decline to do so inasmuch as the Court of Appeals “has never created nor recognized a generalized deliberative process privilege’ ” … .

We “recognize[] the existence of some cases which all too casually mention the deliberate process privilege’ and purport to apply it outside the context of a FOIL proceeding” … . Nevertheless, it is also important to recognize that “privileges simply do not exist in the absence of either constitutional or statutory authority, or, when created as a matter of jurisprudence” … . Although the County seeks to assert “the so-called deliberative process privilege[,]’ ” in the context of a civil litigation, “neither the Court of Appeals’ case law nor that of the [Fourth] Department can be construed [as] having created a distinct deliberate process privilege’ outside the context of a FOIL proceeding” … . Mosey v County of Erie, 2017 NY Slip Op 02201, 4th Dept 3-24-17

 

CIVIL PROCEDURE (DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR)/FREEDOM OF INFORMATION LAW (FOIL) (DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR)/MUNICIPAL LAW (DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR)/DELIBERATIVE PROCESS PRIVILEGE (FOIL, DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR)/INTER OR INTRA AGENCY EXCEPTION (FOIL, DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR)

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