You are here: / Fourth Department

Tag Archive for: Fourth Department

,

Insufficient Foundation for Cross Examination About Witness’ Mental Health

In upholding the limits the trial court placed upon the cross-examination of a witness concerning the witness’ mental health history, the Fourth Department wrote:

A defendant may question a witness about his or her mental health or psychiatric history upon a showing that the witness’s “capacity to perceive and recall events was impaired by a psychiatric condition” …or that “such evidence would bear upon [the witness’s] credibility or otherwise be relevant” … . Here, we conclude that defendant failed to make the requisite showing that the witness in fact had a history of mental illness or that such evidence would bear upon her capacity to perceive or recall the events at issue …. Defense counsel’s statement that the witness was “suffering from or being treated for some variety of mental health issue” was speculative…  People v Rivera, KA 08-01758, 203, 4th Dept, 4-26-13

 

,

Questions About Whether Trial Judge Properly Handled Jury Notes Sent Out During Deliberations Required Reconstruction Hearing

In a writ of coram nobis proceeding, the issue was whether the trial court’s handling of notes sent out by the jury during deliberations violated Criminal Procedure Law 310.30.  Because the record did not clearly indicate the contents of some of the notes, and therefore it was impossible to determine whether the court’s “core responsibilities” were violated (requiring reversal), the matter was sent back for a reconstruction hearing (over two dissents).  The Fourth Department explained the “jury-note” requirements and procedures as follows:

In People v O’Rama (78 NY2d 270)…, the Court of Appeals provided … detailed instructions for the handling of jury notes. The Court advised that, “whenever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel. Such a step would ensure a clear and complete record, thereby facilitating adequate and fair appellate review. After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses . . . [T]he trial court should ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to the potentially harmful information. Finally, when the jury is returned to the courtroom, the communication should be read in open court so that the individual jurors can correct any inaccuracies in the transcription of the inquiry and, in cases where the communication was sent by an individual juror, the rest of the jury panel can appreciate the purpose of the court’s response and the context in which it is being made” .

In subsequent cases, the Court made clear that not all O’Rama violations constitute mode of proceedings errors [requiring reversal in the absence of preservation].The only errors that require reversal in the absence of preservation are those that go to the trial court’s “core responsibilities” under CPL 310.30, such as giving notice to defense counsel and the prosecutor of the contents of a jury note … .  People v Kahley, KA 08-02494, 74, 4th Dept, 4-26-13

 

,

Attorney General’s Medicaid Fraud Control Unit Was Authorized Under Both State and Federal Law to Prosecute a Case Stemming from the Provision of Federal Medicare Services

In a full-fledged opinion by Justice Fahey, the Fourth Department determined that the Attorney General’s Medicaid Fraud Control Unit was authorized, pursuant to Executive Law 63, to prosecute the defendants, who provided federal Medicare services exclusively but received payment from both Medicare and Medicaid.  In addition, the Fourth Department determined that the federal statute which created the state Medicaid Fraud Control Units, and which allows the state Medicaid Fraud Control Units to prosecute federal Medicare violations only where the prosecution as a whole is “primarily related to the state [Medicaid] plan,” did not preempt Executive Law 63 as it was applied in this case.  People v Miran, KA 12-01189, 319, 4th Dept, 4-26-13

 

,

Failure to Inform Defendant of People’s Appeal of Trial Court’s Dismissal of His Indictment Required Grant of a Writ of Coram Nobis

On a writ of coram nobis, the Fourth Department determined the failure to inform defendant of the People’s appeal of the trial court’s dismissal of the indictment required that the writ be granted.  The Fourth Department wrote:

“It is well settled that criminal defendants are entitled under both the Federal and State Constitutions to effective assistance of appellate counsel” … . In addition, “defendants have important interests at stake on a People’s appeal” … . “Given the consequences of a reversal and the possible resumption of criminal proceedings, the defendant certainly has an interest in being informed that the People’s appeal is pending and continuing” (id. at 684-685). “Moreover, . . . other rights requiring protection upon the People’s appeal include the right to appellate counsel of the defendant’s own choice, the right to appear [pro se] on the appeal, and the right to seek appointment of counsel upon proof of indigency” … . However, due process does not require that a defendant be personally served with the People’s appellate briefs ….  There is no showing on this record that the court upon dismissing the indictment complied with 22 NYCRR 200.40 (a) (1) through (3) by advising defendant that the People had the right to take an appeal; that defendant had the right to counsel on the appeal or to appear pro se; and that defendant had the right to assigned counsel on the appeal if he was financially unable to retain counsel … . Nor is there any showing that the People or defense counsel advised defendant of those rights.  People v Forsythe, KA 10-01359, 368, 4th Dept, 4-26-13

 

, ,

Juvenile Delinquency Petition Jurisdictionally Defective; Insufficient Allegations that Pills Were a Controlled Substance

The Fourth Department determined a juvenile delinquency petition was jurisdictionally defective because it included only the conclusory allegation that the juvenile possessed Adderall without any evidentiary facts to support it:

The petition alleged that respondent knowingly and unlawfully sold a controlled substance, i.e., Adderall (see Penal Law § 220.31).The Court of Appeals has made clear that “[s]tanding alone, a conclusory statement that a substance seized from a defendant was a particular type of controlled substance does not meet the reasonable cause requirement” … . Petitioner must provide factual allegations that establish a reliable basis for inferring the presence.  The petition here is supported by only the conclusory statements of respondent’s classmate and an officer that the substance was Adderall. Their statements are not “supported by evidentiary facts showing the basis for the conclusion that the substance sold was actually[Adderall]” … .  Matter of Brandon A, CAF 12-01651, 231, 4th Dept, 4-26-13

 

,

Warrantless Arrest in Home in Absence of Exigent Circumstances Mandated Suppression; Package from Paraguay Addressed to Defendant Properly Opened as a “Border Search”

The Fourth Department determined drugs seized from defendant’s person incident to his arrest should have been suppressed because defendant’s warrantless arrest took place in his home in the absence of exigent circumstances. The court also noted that the search and seizure of a package from Paraguay addressed to defendant did not violate defendant’s constitutional rights because opening the package “constituted a border search … which may be conducted ‘without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country’ “… . People v Boyson, KA 11-01343, 229, 4th Dept, 4-26-13

SUPPRESSION, SEARCH

,

No Exigent Circumstances—Warrantless Search of Home Not Justified

In determining “exigent circumstances” did not exist and therefore the entry of the defendant’s home without a warrant was not justified, the Fourth Department wrote:

Factors to consider in determining whether exigent circumstances exist are “(1) the nature and degree of urgency involved and the amount of time needed to obtain a warrant; (2) a reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought[;] and (4) information indicating that the possessors of the contraband are aware that the police are on their trail” ….Here, the People failed to meet their burden of establishing that exigent circumstances existed to enter defendant’s apartment without a warrant … . The People established that, earlier that day, defendant sold drugs to a police agent inside his residence. In the afternoon, defendant again sold drugs to the police agent at a location outside his home. Defendant was arrested after that sale as he was driving his vehicle back toward his residence. The police went to defendant’s residence 45 minutes after his arrest and climbed through a window to make sure that no one was inside the residence who could destroy evidence before the police could obtain a warrant. Based on that evidence, we conclude that there was no urgency to enter defendant’s residence.  People v Coles, KA 10-02301, 226, 4th Dept, 4-26-13

SUPPRESS, SUPPRESSION, SEARCH

Sentence for Offenses Rising from Same Incident Must Be Concurrent

In determining the sentencing court had erroneously imposed consecutive sentences for offenses arising out of the same incident, the Fourth Department wrote:

“[S]entences imposed for two or more offenses may not run consecutively:(1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” (… Penal Law § 70.25 [2]). “The defendant benefits if either prong is present, and the prosecution’s burden is to countermand both prongs”…

Here, “the acts which constituted the crime of endangering the welfare of a child were not separate and distinct from the acts which constituted the crimes of” robbery and criminal mischief ….  As a result, the sentences imposed on the robbery and criminal mischief counts must run concurrently with the sentences imposed on the endangering the welfare of a child counts. Furthermore, the evidence establishes that, during his flight from the department store, defendant “floored” his vehicle in reverse with his driver’s side door open, striking the security guard as well as the vehicle parked beside his vehicle.  Those acts served as the basis for the criminal mischief count and for the “use of physical force” element of the robbery count (Penal Law § 160.00; see § 160.05), and thus the sentences imposed on the robbery and the criminal mischief counts must also run concurrently ….  People v Dekenipp, KA 11-00855, 204, 4th Dept, 4-26-13

 

 

, ,

Acquittal on Assault Charges in First Trial Did Not Preclude Presentation of Evidence of the Assaults in Second Trial—Collateral Estoppel Doctrine Could Not Be Successfully Invoked Because the Meaning of the Acquittals Was Nearly Impossible to Discern

In a second trial, the defendant moved to preclude the prosecution from introducing evidence of two assaults which were the subjects of acquittals in the first trial.  The trial court allowed evidence of the two assaults.  On appeal the defendant argued that evidence of the assaults of which she was acquitted was precluded by the doctrine of collateral estoppel.  The Fourth Department disagreed and affirmed the trial court’s admission of the evidence, noting that the exact meaning of an acquittal in a criminal trial is often impossible to demonstrate:

“The doctrine of collateral estoppel, or issue preclusion, operates in a criminal prosecution to bar relitigation of issues necessarily resolved in defendant’s favor at an earlier trial” …. Thus, the doctrine applies in a situation such as this, where at a prior trial there was a mixed verdict in which the jury acquitted a defendant of certain charges, but was unable to reach a verdict on the remaining charges ….  “Application of the collateral estoppel doctrine requires that the court determine what the first judgment decided and how that determination bears on the later judgment . . . The rule is easily stated but frequently difficult to implement because the meaning of a general verdict is not always clear and mixed verdicts may, at times, appear inherently ambiguous.  Nevertheless, the court must assume the jury reached a rational result . . . , and a defendant claiming the benefit of estoppel carries the burden of identifying the particular issue on which he [or she] seeks to foreclose evidence and then establishing that the fact finder in the first trial, by its verdict, necessarily resolved that issue in his [or her] favor” …. “Defendant’s burden to show that the jury’s verdict in the prior trial necessarily decided a particular factual issue raised in the second prosecution is a heavy one indeed, and as a practical matter severely circumscribes the availability of collateral estoppel in criminal prosecutions . . . ‘[I]t will normally be impossible to ascertain the exact import of a verdict of acquittal in a criminal trial’ ” …. People v Brandie E…, KA 09-01366, 202, 4th Dept, 4-26-13

 

, ,

Error Relating to Assessment of 10% Surcharge Must Be Preserved by Objection

Over two dissents, the Fourth Department determined the argument that a probation officer’s affidavit was not sufficient to justify a 10% surcharge must be preserved for appeal.  The Fourth Department wrote:

We disagree with our dissenting colleagues that the issue whether a surcharge of 10% is properly imposed does not require preservation. While this Court has in the past relied on the illegal sentence exception to the preservation requirement of CPL 470.05 (2) when reviewing that issue …, more recent decisions from the Court of Appeals have established that issues regarding restitution require preservation …. In addition, the Court of Appeals has held that the mandatory surcharge set forth in Penal Law § 60.35
(1) is not part of a sentence ….Those cases compel us to conclude that an issue regarding a surcharge imposed on restitution pursuant to Penal Law § 60.27 (8) must be preserved for our review and that we cannot rely on the illegal sentence exception to the preservation requirement.   People v Kirkland, KA 11-01835, 147, 4th Dept, 4-26-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy