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FAILURE TO PRESERVE SURVEILLANCE VIDEOS TRIGGERED NEED FOR ADVERSE INFERENCE JURY INSTRUCTION.

The Fourth Department, reversing the conviction, over a concurrence, determined defendant was entitled to an adverser inference jury instruction based upon the failure to preserve surveillance videos:

We agree with defendant that the court erred in refusing to give an adverse inference charge based on the People's failure to preserve surveillance tapes … . Defendant used reasonable diligence in requesting those tapes, which captured “evidence that [was] reasonably likely to be of material importance” …, i.e., a video in the area where the crime occurred, from cameras operated by the City of Rochester Police Department.

We respectfully disagree with our concurring colleague that the State's duty to preserve surveillance videos is not triggered until a request has been made by the defendant. People v Butler, 2016 NY Slip Op 04512, 4th Dept 6-10-16

CRIMINAL LAW (FAILURE TO PRESERVE SURVEILLANCE VIDEOS TRIGGERED NEED FOR ADVERSE INFERENCE JURY INSTRUCTION)/EVIDENCE (FAILURE TO PRESERVE SURVEILLANCE VIDEOS TRIGGERED NEED FOR ADVERSE INFERENCE JURY INSTRUCTION)/ADVERSE INFERENCE JURY INSTRUCTION (CRIMINAL LAW, FAILURE TO PRESERVE SURVEILLANCE VIDEOS TRIGGERED NEED FOR ADVERSE INFERENCE JURY INSTRUCTION)/JURY INSTRUCTIONS (CRIMINAL LAW, FAILURE TO PRESERVE SURVEILLANCE VIDEOS TRIGGERED NEED FOR ADVERSE INFERENCE JURY INSTRUCTION)

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RODRIGUEZ HEARING NECESSARY TO DETERMINE WHETHER SINGLE PHOTO IDENTIFICATION WAS CONFIRMATORY.

The Fourth Department, remitting the case, determined a Rodriguez hearing was necessary to determine whether a witness’s single photo identification of the defendant was confirmatory:

We agree with defendant that, during the suppression hearing, the court erred in precluding defendant from cross-examining the police investigator on the issue whether “Witness #1” was sufficiently familiar with defendant in order to render the single photo identification of defendant by that witness “merely confirmatory” … . Although the court conducted a Wade hearing, which ordinarily eliminates the need for a Rodriguez hearing … , we conclude that the court’s error during the suppression hearing renders a Rodriguez hearing necessary in this case … . We therefore hold the case, reserve decision, and remit the matter to Supreme Court for a hearing to determine whether the identification by the subject witness was truly confirmatory in nature … and, if the court determines that the identification was not confirmatory, it must further determine whether the single photo identification procedure employed with the subject witness was unduly suggestive … . People v Hoffman, 2016 NY Slip Op 04508, 4th Dept 6-10-16

CRIMINAL LAW (RODRIGUEZ HEARING NECESSARY TO DETERMINE WHETHER SINGLE PHOTO IDENTIFICATION WAS CONFIRMATORY)/EVIDENCE (CRIMINAL LAW, RODRIGUEZ HEARING NECESSARY TO DETERMINE WHETHER SINGLE PHOTO IDENTIFICATION WAS CONFIRMATORY)/IDENTIFICATION (CRIMINAL LAW, RODRIGUEZ HEARING NECESSARY TO DETERMINE WHETHER SINGLE PHOTO IDENTIFICATION WAS CONFIRMATORY)

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ALTHOUGH EVIDENCE OF PRIOR THREATS AGAINST THE VICTIM MAY BE ADMISSIBLE UNDER MOLINEUX, SUCH EVIDENCE MUST BE IN ADMISSIBLE FORM, HERE THE HEARSAY EVIDENCE OF PRIOR THREATS SHOULD NOT HAVE BEEN ADMITTED FOR THE TRUTH OF THE MATTERS ASSERTED.

The Fourth Department, reversing defendant's conviction in this 30-year-old domestic murder case, determined hearsay evidence of threats allegedly made by the defendant against the victim were improperly admitted for the truth of the matters asserted. While evidence of threats made to the victim may be admissible under Molineux, such evidence must be in admissible form:

Citing Molineux and other like cases, including People v Alvino (71 NY2d 233), the People argue that evidence of defendant's prior threats and physical abuse of the victim were highly relevant for various nonhearsay purposes, such as establishing background information, revealing the state of mind of the victim and defendant, and demonstrating his motive and intent to kill the victim. As defendant correctly points out, however, there is no Molineux exception to the rule against hearsay. It may be true that evidence that defendant beat and threatened to kill the victim is admissible under a Molineux theory, but such evidence must still be in admissible form. For instance, a witness could testify that he or she witnessed defendant assault the victim, or heard defendant threaten the victim. That is not hearsay. It is hearsay, however, for a witness to testify that someone else told him or her that defendant beat or threatened the victim. People v Meadow, 2016 NY Slip Op 04505, 4th Dept 6-10-16

CRIMINAL LAW (ALTHOUGH EVIDENCE OF PRIOR THREATS AGAINST THE VICTIM MAY BE ADMISSIBLE UNDER MOLINEUX, SUCH EVIDENCE MUST BE IN ADMISSIBLE FORM, HERE THE HEARSAY EVIDENCE OF PRIOR THREATS SHOULD NOT HAVE BEEN ADMITTED FOR THE TRUTH OF THE MATTERS ASSERTED)/EVIDENCE (CRIMINAL LAW, ALTHOUGH EVIDENCE OF PRIOR THREATS AGAINST THE VICTIM MAY BE ADMISSIBLE UNDER MOLINEUX, SUCH EVIDENCE MUST BE IN ADMISSIBLE FORM, HERE THE HEARSAY EVIDENCE OF PRIOR THREATS SHOULD NOT HAVE BEEN ADMITTED FOR THE TRUTH OF THE MATTERS ASSERTED)/PRIOR CRIMES AND BAD ACTS (ALTHOUGH EVIDENCE OF PRIOR THREATS AGAINST THE VICTIM MAY BE ADMISSIBLE UNDER MOLINEUX, SUCH EVIDENCE MUST BE IN ADMISSIBLE FORM, HERE THE HEARSAY EVIDENCE OF PRIOR THREATS SHOULD NOT HAVE BEEN ADMITTED FOR THE TRUTH OF THE MATTERS ASSERTED)/MOLINEUX EVIDENCE (ALTHOUGH EVIDENCE OF PRIOR THREATS AGAINST THE VICTIM MAY BE ADMISSIBLE UNDER MOLINEUX, SUCH EVIDENCE MUST BE IN ADMISSIBLE FORM, HERE THE HEARSAY EVIDENCE OF PRIOR THREATS SHOULD NOT HAVE BEEN ADMITTED FOR THE TRUTH OF THE MATTERS ASSERTED)

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DEFENDANT ENTITLED TO A WADE HEARING TO DETERMINE THE RELIABILITY, AS OPPOSED TO SUGGESTIVENESS, OF AN IDENTIFICATION.

The Fourth Department, reversing the conviction, over a concurrence, determined defendant was entitled to a Wade hearing to determine the reliability, as opposed to the suggestiveness, of an identification:

Here, following the drug transaction, the undercover officer did not observe defendant again until the trial, which was approximately a year and a half after the transaction. That lapse of time is in stark contrast to the typical situation where an undercover officer identifies the arrestee at the police station contemporaneously with the drug transaction … .

While we recognize that a “Wade hearing” is often linked, nearly exclusively, with the concept of “suggestiveness,” we conclude that a defendant is entitled to CPL 710.30 (1) (b) notice and the opportunity to move to suppress identification testimony pursuant to CPL 710.60 in order to test the reliability of such testimony … . While “suggestiveness” may play an important role in the reliability analysis, it is not the exclusive criterion. The list of criteria involved in making a reliability determination may include, but is not limited to: the lapse of time between the criminal transaction and the arrest, the opportunity to observe the suspect during the transaction, the duration of the interaction, and the facts and circumstances of the interaction with the suspect. It is well settled that “the mere labelling of an identification as confirmatory' will not obviate the need for Wade hearings. Case-by-case analyses of the facts and circumstances in each case remains necessary” … . “Comprehensive analysis, not superficial categorization, ultimately governs” … . People v Reeves, 2016 NY Slip Op 04502, 4th Dept 6-10-16

CRIMINAL LAW (DEFENDANT ENTITLED TO A WADE HEARING TO DETERMINE THE RELIABILITY, AS OPPOSED TO SUGGESTIVENESS, OF AN IDENTIFICATION)/EVIDENCE (CRIMINAL LAW, DEFENDANT ENTITLED TO A WADE HEARING TO DETERMINE THE RELIABILITY, AS OPPOSED TO SUGGESTIVENESS, OF AN IDENTIFICATION)/IDENTIFICATION (CRIMINAL LAW, DEFENDANT ENTITLED TO A WADE HEARING TO DETERMINE THE RELIABILITY, AS OPPOSED TO SUGGESTIVENESS, OF AN IDENTIFICATION)/WADE HEARING DEFENDANT ENTITLED TO A WADE HEARING TO DETERMINE THE RELIABILITY, AS OPPOSED TO SUGGESTIVENESS, OF AN IDENTIFICATION)

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PROSECUTOR’S INCORRECT STATEMENT ABOUT THE LENGTH OF POST-RELEASE SUPERVISION WAS NOT PRESERVED FOR APPEAL BY OBJECTION.

The Fourth Department determined the prosecutor's misstatement concerning the length of post-release supervision did not require reversal because defendant had ample opportunity to raise an objection to preserve the error but did not do so:

Although the prosecutor initially misstated the period of postrelease supervision prior to the plea allocution and the court failed to mention postrelease supervision during the allocution, defendant was aware that the sentence included a postrelease supervision component at the time of the allocution, the court immediately thereafter confirmed the correct agreed-upon sentence, and neither defendant nor defense counsel objected to the period of postrelease supervision or otherwise indicated that there was any misunderstanding with regard to its length. People v Chant, 2016 NY Slip Op 04544, 4th Dept 6-10-16

CRIMINAL LAW PROSECUTOR'S INCORRECT STATEMENT ABOUT THE LENGTH OF POST-RELEASE SUPERVISION WAS NOT PRESERVED FOR APPEAL BY OBJECTION)/APPEALS (CRIMINAL LAW, PROSECUTOR'S INCORRECT STATEMENT ABOUT THE LENGTH OF POST-RELEASE SUPERVISION WAS NOT PRESERVED FOR APPEAL BY OBJECTION)/POST-RELEASE SUPERVISION PROSECUTOR'S INCORRECT STATEMENT ABOUT THE LENGTH OF POST-RELEASE SUPERVISION WAS NOT PRESERVED FOR APPEAL BY OBJECTION)

PEOPLE’S FAILURE TO OBTAIN AN ACCUSATORY INSTRUMENT AFTER THE COURT REDUCED THE FELONY TO A MISDEMEANOR REQURED VACATION OF THE PLEA AND DISMISSAL OF THE INDICTMENT.

The Fourth Department vacated defendant's plea to a misdemeanor (as a reduced charge) and dismissed the indictment because the People did not take any of the steps required by Criminal Procedure Law 210.20(6):

County Court granted defendant's motion to review the grand jury minutes and, upon that review, concluded that the evidence before the grand jury was not legally sufficient to support [promoting prison contraband first degree] but was sufficient to support the lesser included offense of promoting prison contraband in the second degree. Defendant then pleaded guilty to the lesser included offense.

“CPL 210.20 (6) provides that when a court decides to reduce a count contained in an indictment [to a misdemeanor] on the ground that it is not supported by legally sufficient evidence, the People do one of the following: (1) accept the court's order and file a prosecutor's information containing the reduced charge; (2) re-present the [higher count] to a grand jury; or (3) appeal the court's order” … . Here, however, the People did not take any of those three actions, and defendant pleaded guilty to the reduced charge. Inasmuch as ” [a] valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution' ” … , the plea must be vacated and the indictment dismissed … . People v Haigler, 2016 NY Slip Op 04584, 4th Dept 6-10-16

CRIMINAL LAW (PEOPLE'S FAILURE TO OBTAIN AN ACCUSATORY INSTRUMENT AFTER THE COURT REDUCED THE FELONY TO A MISDEMEANOR REQURED VACATION OF THE PLEA AND DISMISSAL OF THE INDICTMENT)/ACCUSATORY INSTRUMENT (CRIMINAL LAW, PEOPLE'S FAILURE TO OBTAIN AN ACCUSATORY INSTRUMENT AFTER THE COURT REDUCED THE FELONY TO A MISDEMEANOR REQUIRED VACATION OF THE PLEA AND DISMISSAL OF THE INDICTMENT)

FAMILY COURT ABUSED ITS DISCRETION BY REFUSING TO ALLOW MOTHER TO APPEAR BY TELEPHONE FROM FLORIDA.

The Fourth Department determined Family Court, in a neglect proceeding, abused its discretion by refusing mother's request to appear by telephone:

The record establishes that the mother moved to Florida, with financial assistance from DSS, during the period between the fact-finding hearing and the dispositional hearing. She requested permission to make future appearances by telephone, and the court denied the request, citing “the facts and circumstances of the case” and its preference that the mother be present “as any party of the proceeding should be present.” While section 75-j does not require courts to allow testimony by telephone or electronic means in all cases … , we conclude that the ruling here, in which the court failed to consider the impact of the mother's limited financial resources on her ability to travel to New York, was an abuse of discretion … . Matter of Thomas B. (Calla B.), 2016 NY Slip Op 03640, 4th Dept, 5-6-16

FAMILY LAW (FAMILY COURT ABUSED ITS DISCRETION BY REFUSING TO ALLOW MOTHER TO APPEAR BY TELEPHONE FROM FLORIDA)/TELEPHONE, APPEARANCE BY (FAMILY COURT ABUSED ITS DISCRETION BY REFUSING TO ALLOW MOTHER TO APPEAR BY TELEPHONE FROM FLORIDA)

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EVIDENCE SUPPORTING UPWARD DEPARTURE WAS SPECULATIVE AND DID NOT RISE TO THE LEVEL CLEAR AND CONVINCING.

The Fourth Department, over a two-justice dissent, determined the evidence was not sufficient to justify and upward departure from a Level Two to a Level Three sex offender. Defendant restricted the freedom of a child who subsequently was either released or escaped when her friend, who had escaped, called for her. Defendant was convicted of attempted kidnapping. County Court's upward departure was, in the opinion of the majority, based upon speculation about defendant's motives and intentions, which did not rise to the level of clear and convincing evidence of aggravating circumstances not taken into account by the risk assessment:

We agree with defendant that the court erred in granting the People's request for an upward departure from a presumptive level two risk to a level three risk based upon its assumption that the victim would have suffered greater harm had the other child not intervened and allowed the victim to escape. While it may be reasonable to assume that defendant had sinister intentions when he lured two young children into his home, such an assumption does not constitute the requisite “clear and convincing evidence that there exist aggravating circumstances of a kind or to a degree not adequately taken into account by the risk assessment guidelines”… . People v Baldwin, 2016 NY Slip Op 03609, 4th Dept 5-6-16

CRIMINAL LAW (SORA RISK ASSESSMENT, EVIDENCE SUPPORTING UPWARD DEPARTURE WAS SPECULATIVE AND DID NOT RISE TO THE LEVEL CLEAR AND CONVINCING)/SEX OFFENDER REGISTRATION ACT (EVIDENCE SUPPORTING UPWARD DEPARTURE WAS SPECULATIVE AND DID NOT RISE TO THE LEVEL CLEAR AND CONVINCING)/SORA (EVIDENCE SUPPORTING UPWARD DEPARTURE WAS SPECULATIVE AND DID NOT RISE TO THE LEVEL CLEAR AND CONVINCING)/UPWARD DEPARTURE (SORA, EVIDENCE SUPPORTING UPWARD DEPARTURE WAS SPECULATIVE AND DID NOT RISE TO THE LEVEL CLEAR AND CONVINCING)/EVIDENCE (SORA RISK ASSESSMENT, EVIDENCE SUPPORTING UPWARD DEPARTURE WAS SPECULATIVE AND DID NOT RISE TO THE LEVEL CLEAR AND CONVINCING)

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COURT FAILED TO MAKE A MINIMAL INQUIRY INTO DEFENDANT’S COMPLAINT ABOUT A CONFLICT OF INTEREST WITH DEFENSE COUNSEL, CONVICTION REVERSED.

The Fourth Department reversed defendant's conviction because the trial judge did not make an adequate inquiry into defendant's complaint about a conflict of interest with defense counsel:

… [T]he court violated [defendant's] right to counsel when it failed to conduct a sufficient inquiry into his complaint regarding a conflict of interest with defense counsel. Prior to commencement of a scheduled suppression hearing, defense counsel informed the court that, based on recent discussions, defendant wanted to request new counsel, and that there had been a breakdown in communication between defense counsel and defendant regarding the issues that they needed to address. Defendant subsequently confirmed that he was requesting new assigned counsel and informed the court that he had filed a grievance against defense counsel resulting in a conflict of interest. '[A]lthough there is no rule requiring that a defendant who has filed a grievance against his attorney be assigned new counsel, [a] court [is] required to make an inquiry to determine whether defense counsel [can] continue to represent defendant in light of the grievance” … . Moreover, “where potential conflict is acknowledged by counsel's admission of a breakdown in trust and communication, the trial court is obligated to make a minimal inquiry” … . People v Tucker, 2016 NY Slip Op 03637, 4th Dept 5-6-16

CRIMINAL LAW (COURT FAILED TO MAKE A MINIMAL INQUIRY INTO DEFENDANT'S COMPLAINT ABOUT A CONFLICT OF INTEREST WITH DEFENSE COUNSEL, CONVICTION REVERSED)/ATTORNEYS (CRIMINAL LAW, COURT FAILED TO MAKE A MINIMAL INQUIRY INTO DEFENDANT'S COMPLAINT ABOUT A CONFLICT OF INTEREST WITH DEFENSE COUNSEL, CONVICTION REVERSED)

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT SUFFICIENTLY ALLEGED HIS COUNSEL PROVIDED WRONG INFORMATION ABOUT THE POSSIBILITY OF DEPORTATION.

The Fourth Department determined defendant's motion to vacate his conviction by guilty plea should not have been denied without a hearing. Defendant alleged his attorney wrongly told him there was no possibility defendant would be deported based upon the conviction:

In support of his motion, defendant, who is not a United States citizen, submitted an affidavit in which he asserted that his attorney advised him prior to the plea that “there is no way in the world” that he would be deported as a result of his plea because he was being sentenced to less than five years in prison. Defendant further asserted that he would not have pleaded guilty had he been properly advised of the deportation consequences of the plea. According to defendant, he was deported to Jamaica after serving his term of imprisonment.

As the Court of Appeals has held, an affirmative misstatement of the law regarding the deportation consequences of a plea may provide a basis for vacatur of the plea if it can be shown that the defendant was thereby prejudiced, i.e., there is a reasonable probability that the defendant would not otherwise have pleaded guilty … . Here, we conclude that defendant's sworn assertions, if true, entitle him to relief and, because it cannot be said that his assertions are incredible as a matter of law, a hearing is required. We reject the People's contention that the court properly denied the motion because defendant failed to submit an affidavit from his former attorney corroborating his claim … . Where, as here, defendant's “application is adverse and hostile to his trial attorney,” it “is wasteful and unnecessary” to require the defendant to secure an affidavit from counsel, or to explain his failure to do so … . Moreover, contrary to the People's further contention, defendant's assertion that he would not have pleaded guilty if he had been properly advised regarding deportation is sufficient to raise an issue of fact whether he was prejudiced by counsel's alleged error … . People v Bennett, 2016 NY Slip Op 03608, 4th Dept 5-6-16

CRIMINAL LAW (MOTION TO VACATE CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT SUFFICIENTLY ALLEGED HIS COUNSEL PROVIDED WRONG INFORMATION ABOUT THE POSSIBILITY OF DEPORTATION)/VACATE CONVICTION, MOTION TO (MOTION TO VACATE CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT SUFFICIENTLY ALLEGED HIS COUNSEL PROVIDED WRONG INFORMATION ABOUT THE POSSIBILITY OF DEPORTATION)

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