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Refusal to Allow Relative’s Testimony Did Not Deny Right to Present a Defense

The Second Department determined defendant was not denied his right to present a defense by County Court’s refusal to allow defendant’s sister-in-law to testify:

A criminal defendant has a fundamental right to produce witnesses, and “absent a showing of bad faith, an application to produce witnesses whose testimony would be relevant to the defense should not be denied”…. However, a trial court may, in its discretion, exclude evidence that is of slight or remote significance, speculative, lacking a good-faith factual basis, or solely based on hearsay….

In the instant case, the proposed testimony of the defendant’s sister-in-law regarding the relationship between the defendant and his wife consisted largely of hearsay, was cumulative to other evidence, and was only marginally, if at all, relevant. Consequently, the County Court did not improvidently exercise its discretion in precluding that testimony, and that ruling did not deprive the defendant of the right to present a defense… .  People v Strzelecki, 2013 NY Slip Op 05233, 2nd Dept 7-10-13

 

Jury Was Given Written Copies of Portions of Jury Instructions; Judge’s Responses to Subsequent Requests for Jury Instructions and Testimony Read-Back Required Reversal

The Third Department reversed defendant’s conviction on two grounds.  First, the trial judge’s response to the jury’s request for jury instructions (written copies of portions of the jury instructions had already been given to the jury) was not “meaningful” and required reversal in the absence of an objection.  And second, the read-back of testimony requested by the jury did not match the request and did not include crucial cross-examination:

As it was unclear from the jury’s note whether the jury simply was seeking the portion of the written charge previously promised by County Court or some other unidentified portion of the charge  (or even  the  charge  in its entirety), it was  incumbent upon County Court to explore this inquiry with the jury and clarify the  nature of the  jury’s request or, at the  very least, ascertain whether its response to the jury’s request was satisfactory….Although defense counsel did not object to the manner in which County Court  responded  to the  jury’s inquiry, County  Court  failed “to provide  a  meaningful response  to the  jury” and, in so  doing, failed to fulfill its “core responsibility” in this regard  ….    Accordingly, no objection was required to preserve this issue for appellate review… . * * *

Although CPL 310.30 affords a trial court a certain degree of latitude in responding to a jury request for additional information, the court’s response must be meaningful … . Additionally, “[a] request for a reading of testimony generally is presumed to include cross-examination which impeaches the testimony to be read back, and any such testimony should be read to the jury unless the jury indicates otherwise”… .  People v Clark, 105237, 3rd Dept 7-3-13

 

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Article 78 Petition in Nature of Prohibition Against Judge and District Attorney Granted

The Second Department explained the criteria for an Article 78 action (against a judge and district attorney) in the nature of prohibition.  In this case Supreme Court had ordered defendant to appear for resentencing after the Appellate Division had ruled without remitting the matter to Supreme Court for further proceedings.  The Second Department granted the petition and prohibited the resentencing:

The remedy of prohibition generally lies when a court or an officer acts or threatens to act without jurisdiction or exceeds its authorized powers in a proceeding over which it has jurisdiction (see CPLR 7803[2];…). To warrant the extraordinary remedy of prohibition, it is not enough that the court made a mere legal error. Rather, the court’s error must implicate its very powers and thereby be subject to correction by prohibition….  Matter of Dow v Tomei, 2013 NY Slip Op 04799, 2nd Dept 6-26-13

 

Plea Colloquy Raised Concerns Requiring Further Inquiry Re: Defendant’s Mental Health

The Second Department determined that defendant’s plea colloquy raised concern about defendant’s mental health requiring inquiry by the sentencing court:

Here, in light of the defendant’s known history of mental illness, and the finding within six days after commission of the instant sex offense that the defendant was suffering from psychotic symptoms attributable to bipolar disorder, for which he required hospitalization, certain statements made during the defendant’s plea allocution—specifically, statements regarding the complainant’s impression that, at the time of incident, the defendant was “very very much mentally unwell”—“signaled that [the defendant] may have been suffering from a mental disease or defect” when the offense was committed, thereby triggering the Supreme Court’s duty to inquire…. The trial court’s failure to conduct any inquiry as to a potential affirmative defense to the charges based upon mental disease or defect (see Penal Law 40.15), requires vacatur of the defendant’s plea of guilty…. While the People are correct that the defendant’s argument is unpreserved for appellate review, preservation is not required where, as here, under the totality of the circumstances, the defendant’s guilt and the voluntariness of the plea were called into question before the court….  People v Grason, 2013 NY Slip Op 04827, 2nd Dept 6-26-13

 

Trial Court’s Questioning Jury Whether It Had Reached a Verdict on Any Counts and Its Acceptance of a Partial Verdict Okay

The First Department determined the trial court, after several days of deliberation, properly questioned the jury whether it had reached a verdict on any of the counts and properly accepted a partial verdict:

The court, which was aware of the travel plans and upcoming religious observance of some of the jurors, properly exercised its discretion when it inquired whether the jury, which had been deliberating for several days, had agreed upon a verdict as to any of the counts submitted, and then accepted a partial verdict…. In accordance with CPL 310.70(1)(b), the court properly instructed the jury to resume deliberations on the remaining counts. The court’s actions did not coerce a verdict as to any counts…, and defendant has not shown how he was prejudiced by any of these actions.  People v Campbell, 2013 NY Slip Op 04418, 1st Dept, 6-13-13

 

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Substitute Judge Can Rule on Motion Argued Before Another Judge

The full-fledged opinion by Judge Read was succinctly summarized by the Court of Appeals as follows:

We hold that Judiciary Law § 21 does not bar a substitute judge from deciding a question of law presented in a motion argued orally before another judge so long as a transcript or recording of the prior argument is available for review, and “the substitute indicates on the record the requisite familiarity with the proceedings and no undue prejudice occurs to the defendant or the People” …. Put another way, section 21 does not mandate a mistrial or that the pending motion be re-argued orally in front of the substitute judge. People v Hampton, No 92, CtApp, 6-6-13

 

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Court’s Failure to Inquire About Potential Conflict of Interest and Failure to Follow Statutory Procedure for Jury Note Did Not Require Reversal

The Third Department determined the trial court’s failure to directly inquire into defendant’s awareness of the risks associated with his attorney’s potential conflict of interest and the trial court’s failure to follow the statutory procedure with respect to a note from the jury during deliberations did not require reversal:

Early in these proceedings, defendant’s trial counsel informed County Court of a potential conflict of interest based upon the prior representation of a prosecution witness by another attorney in counsel’s law firm. Although counsel informed the court that defendant had no objection, County Court erred by failing to directly inquire into defendant’s awareness of the potential risks and  his willingness to waive any  potential conflict … . * * *

While the better practice would  have  been  for County  Court to read the note on the record prior to responding to it and we do not condone the court’s curtailment of counsel’s argument, the record reflects that counsel was aware  of the specific content of the note and  we  are satisfied that counsel had  a full opportunity to explain his position as to the meaning  of “duly served.”  Under  these circumstances, defense counsel can be  said to have meaningfully participated in the response to the note… .  People v Cooper, 104749, 3rd Dept, 6-6-13

 

Failure to Comply with Statutory Procedure Re: Jury Note Was Not “Mode of Proceedings” Error​

The Court of Appeals determined the trial court’s failure to comply precisely with the requirements of CPL 310.30, and the trial court’s having a court officer tell the jury they could not have a written copy of the jury instructions, did not constitute mode of proceedings errors.  The Court wrote:

We are not persuaded by defendant’s argument that a mode of proceedings error occurred, when the trial court did not comply precisely with the requirements of People v O’Rama (78 NY2d 270 [1991]; CPL 310.30). Where, as here, defense counsel had notice of a jury note and “failed to object . . . when the error could have been cured,” lack of preservation bars the claim … .

Nor did the court commit a mode of proceedings error by delegating delivery of its answer to a jury question to a court officer. That task was in this context practically ministerial and defense counsel consented to the procedure … . People v Williams, No 112, CtApp, 5-30-13

 

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Trial Judge Can Rescind Mistrial Declaration; Retrial Okay Where Defendant Consents to Mistrial​

The Second Department determined that a trial judge can rescind a mistrial declaration and noted that a mistrial granted with the consent of the defendant does not bar retrial:

When a mistrial is declared in a criminal case without the consent, or over the objection, of the defendant, the prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution and in section 6 of article I of the New York Constitution precludes a retrial for the same offense unless ” there is a manifest necessity for [the mistrial], or the ends of public justice would otherwise be defeated'”…. Conversely, when a defendant requests or consents to a mistrial, double jeopardy typically does not bar a retrial ….

The mere declaration of a mistrial does not terminate a criminal trial and thereby divest the trial court of the authority to rescind the declaration…. Accordingly, the Supreme Court erred in determining that the District Court did not retain the discretion to rescind its previous declaration of a mistrial prior to the discharge of the jury. Moreover, the District Court’s initial declaration of a mistrial, made without the petitioner’s consent, was rescinded and, thereafter, a mistrial was declared upon the petitioner’s consent. Accordingly, the Supreme Court erred in granting the petition to the extent that it did, and in barring a retrial of the petitioner on the ground of double jeopardy. Matter of Gorman v Rice, 2013 NY Slip Op 03673, 2nd Dept, 5-22-13

 

Court’s Quashing of Defense Subpoena Deprived Defendant of Right to Present a Defense​

The Second Department determined the trial court quashing of an subpoena served upon a defense witness deprived defendant of his constitutional right to present a defense and required a new trial. People v Eastment, 2013 NY Slip Op 03687, 2nd Dept, 5-22-13

 

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