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The Facts that a Witness Had Given a Statement to the Police and Was on the People’s Witness List Did Not Demonstrate the People Had Control Over the Witness—Request for Missing Witness Charge Properly Denied

The Second Department determined Supreme Court properly denied defendant’s request for a missing witness charge for the defendant’s roommate, who had witnessed the shooting and had given a statement to the police during the initial investigation.  The facts that the roommate had given a statement and was placed on the People’s witness list did not demonstrate control over the witness. Without evidence of such control (for example, a material witness order) a missing witness charge is not appropriate:

…[T]he roommate was not under the People’s control at the time of trial by virtue of having provided a statement to the police during the initial investigation stage of the case. In addition, control cannot be found from the People’s placement of the roommate on their witness list, as their wish for his testimony is not indicia of having control over him. There was no material witness order. Indeed, the record contains no evidence that the People’s relationship with the defendant’s roommate gave them any more control over him at trial than the defendant may have had himself.  People v Roseboro, 2015 NY Slip Op 03192, 2nd Dept 4-15-15

 

Jury Instruction Reversed Burden of Proof—New Trial Ordered

The Third Department determined defendant’s conviction must be reversed because the trial court’s instruction to the jury reversed the burden of proof.  The defendant was accused of killing a pit bull in violation of Agriculture and Markets Law  353(a)(1):

….[D]efendant contends that County Court erred in rendering a supplemental jury instruction that effectively shifted the burden of proof to defendant to prove his own innocence. While defendant failed to preserve this issue through an appropriate objection, given the nature of the challenged instruction, we exercise our interest of justice jurisdiction to take corrective action … . Without question, the People bear the burden of proving a defendant’s guilt beyond a reasonable doubt, and County Court so charged the jury twice before giving the instruction at issue. After receiving a further note from the jury requesting definitions for certain terms, including “depraved” and “sadistic,” the court determined that it would “be beneficial . . . to once again go over the definition of aggravated cruelty.” In doing so, however, the court advised the jury: “Thus, if you find beyond a reasonable doubt that the defendant did not engage in conduct which caused the animal extreme pain or which was not done or carried out in an especially depraved or sadistic manner, you must find the defendant not guilty.” This charge impermissibly shifted the burden of proof by suggesting that defendant needed to prove his innocence beyond a reasonable doubt. Compounding the problem, the charge was rendered shortly before the jury rendered the guilty verdict. In our view, this was a fundamental error, requiring the reversal of the judgment and a new trial … . People v Facey, 2015 NY Slip Op 02810, 3rd Dept 4-2-15

 

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Father’s Recording of Defendant’s Berating and Threatening Father’s Child Admissible Under the “Vicarious Consent” Theory (Father Vicariously Consented, on Behalf of the Child, to the Recording)/Variance Between Jury Instruction and Charges in the Indictment Was Harmless Error–No Possibility Defendant Was Convicted of a Theory Not Encompassed by the Indictment

The Second Department applied a “vicarious consent” theory to reject the defendant’s argument that the father’s recording of the defendant berating and threatening the father’s child violated the eavesdropping statutes, Penal Law 250.05 and CPLR 4506. Father had called mother’s cell phone which mother answered without speaking. Father could hear the defendant speaking to the child over the phone and recorded the defendant’s words.  In addition to the “vicarious consent” discussion, he Second Department noted that a variance between the jury instructions and the charges in the indictment was harmless error because there was no possibility the guilty verdict was based upon a theory not in the indictment.  With respect to the “vicarious consent” to the recording, the court wrote:

While … Penal Law § 250.05 serves the strong public policy goal of protecting citizens from eavesdropping, we are not persuaded that the New York Legislature intended to subject parents to criminal penalties when, “out of concern for the bests interests of their minor child, they record that child’s conversations” … . Given the similarity between the federal wiretap statute and New York’s eavesdropping statute, and recognizing that the “vicarious consent” exemption is rooted on a parent’s need to act in the best interests of his or her child …, we deem it appropriate to adopt it as an exemption to Penal Law § 250.05.

Here, the People sufficiently demonstrated that the father had a “good faith, objectively reasonable basis to believe” that it was necessary for the welfare of the infant to record the conversation …, such that he could consent to the recording on the infant’s behalf … . Accordingly, the “vicarious consent” exemption applies, and admission of the subject recording was not barred by CPLR 4506. People v Badalamenti, 2015 NY Slip Op 00384, 2nd Dept 1-14-15

 

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Larceny Jury Instruction Shifted Burden of Proof to Defendant—Reversal Required In Absence of Preservation of the Error

The Fourth Department reversed defendant’s conviction because the jury instruction shifted the burden of proof to the defendant:

Penal Law § 155.15 (1) provides that, “[i]n any prosecution for larceny committed by trespassory taking or embezzlement, it is an affirmative defense that the property was appropriated under a claim of right made in good faith.” …[H]owever, the Court of Appeals in People v Chesler (50 NY2d 203, 209-210) “held that section 155.15 was unconstitutional insofar as it made a good-faith claim of right an affirmative defense because to do so impermissibly shifted the burden onto the defendant to disprove the element of intent.” Rather, “a good faith claim of right is properly a defense–—not an affirmative defense—–and thus, the [P]eople have the burden of disproving such defense beyond a reasonable doubt’ ” … . Here, however, the court instructed the jury that “defendant has the burden of proving that she took, withheld or obtained the property under a claim of right made in good faith by a preponderance of the evidence.” We conclude that the court committed a mode of proceedings error when it shifted the burden onto defendant to disprove the element of intent …, thereby requiring reversal of the judgment and a new trial even in the absence of preservation … . People v Forbes-Haas, 2015 NY Slip Op 00092, 4th Dept 1-2-15

 

Reversible Error to Deny Defendant’s Request for a Jury Instruction on the Terretorial Jurisdiction Requirement

The First Department, in a full-fledged opinion by Justice Richter, determined that the trial court’s failure, at the defendant’s request, to instruct the jury on the terretorial jurisdiction requirement (pursuant to Criminal Procedure Law (CPL) 20.20, an element of the charged offense must have been committed within New York State) was reversible error.  It was alleged that defendant, who worked in New York for a Danish company, essentially wrote checks from the company account to himself.  The defense requested a jury instruction on the requisites for the terretorial jurisdiction of a New York court over the alleged crime and the People did not oppose the request.  The First Department explained that, like a jury instruction on the requisites of venue, a jury instruction on the requisites of jurisdiction should be given upon request:

When a defendant requests the court to instruct the jury on venue, it is error to deny the request even if the People’s proof as to venue may be uncontradicted … . Thus, “when requested to submit the issue to the jury it is doubtful whether it would ever be proper for the court to deny the request and decide the issue as a matter of law on the theory that the People have met their burden by uncontradicted proof” … . These principles apply equally to the issue of territorial jurisdiction, which has a higher burden of proof and which “goes to the very essence of the State’s power to prosecute” … . * * *

Under [CPL 20.20] … “a person may be convicted . . . of an offense . . . committed . . . by his [or her] own conduct . . . when . . . [c]onduct occurred within this state sufficient to establish . . . [a]n element of such offense.” The CJI charge on territorial jurisdiction mirrors the statutory language, and further requires the jury to determine jurisdiction before they begin deliberations on whether the People have proven the defendant guilty of the charged crime. * * * … [T]he purpose of the jurisdiction charge is to focus the jury on this question, and the standard charge on the elements of the crime does not advise the jury that they must decide the threshold jurisdictional issue before deciding anything else. Accordingly, defendant’s conviction should be reversed and the matter remanded for a new trial. People v Thomas, 2014 NY Slip Op 07965, 1st Dept 11-18-14

 

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Request for Missing-Witness Jury Instruction Should Have Been Granted—Prosecutor’s Statement that the Witness Would Exercise His Fifth Amendment Privilege Against Self-Incrimination Not Enough to Demonstrate Witness’ Unavailability

The Fourth Department granted defendant a new trial because the defense request for a missing witness jury instruction was denied.  The witness, who had testified before the grand jury,  was the only eyewitness to the relevant events.  The prosecutor argued the witness was unavailable because he would assert his Fifth Amendment privilege against self-incrimination.  The Fourth Department determined the witness’ unavailablity was not sufficiently established:

Contrary to the People’s contention, they failed to establish that the eyewitness was unavailable. Although the People correctly note that “a witness who on Fifth Amendment grounds refuses to testify will be considered unavailable’ although the witness’s presence is known and apparent” …, the People failed to establish that the eyewitness was unavailable on that ground. An uncharged accomplice may be considered unavailable in certain circumstances …, but the statements made by the prosecutor were not sufficient to establish that the eyewitness was an accomplice or that he faced any criminal liability for his actions … . The People’s further contention that the prosecutor could not call the eyewitness inasmuch “as his attorney will have him plead the Fifth Amendment” is not supported by evidence in the record before us. It is well settled that a trial court “should . . . be reasonably sure that the witness will in fact invoke the privilege, and where there is doubt the witness should be brought before the court and asked the relevant questions” … . Here, the prosecutor did not call the eyewitness and there was no communication from the eyewitness’s attorney; thus, “there was no verification that [the eyewitness] would plead the Fifth Amendment on the stand” … . The People’s “bare allegation that the witness in question apparently’ would assert [his] Fifth Amendment privilege, in light of the attendant circumstances, did not render that witness unavailable” … . People v Fuqua, 2014 NY Slip Op 07784, 4th Dept 11-14-14

 

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“Drug Factory” Presumption re: Possession of Drugs to Which the Defendant Is In “Close Proximity” Does Not Apply to A Defendant Who Is Arrested Outside the Building Where the Drugs Are Located and Who Was Not Trying to Escape/Where a Jury Is Instructed It Can Consider Two Different Theories of Possession, and One of Those Theories Should Not Have Been Available for the Jury’s Consideration, the Relevant Convictions Must Be Reversed—the Jury Could Have Based Its Verdict on the Erroneously-Charged Theory

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that the trial judge should not have allowed the jury to consider whether the defendant, who was arrested outside the apartment, was in “close proxity” to the cocaine in the apartment.  Penal Law 220.25(2) creates a presumption that persons in “close proximity” to drugs that are being mixed or packaged possesses those drugs (the so-called “drug factory” presumption). The trial judge also instructed the jury they could consider whether the defendant constructively possessed the drugs by virtue of his control over the area where the drugs were found.  Because it can not be determined whether the jury based its verdict on the erroneous “drug factory” charge or the correct “constructive possession” charge, the relevant convictions were reversed and a new trial ordered.  The Court of Appeals went through all the scenarios which have been held to constitute “close proximity” to drugs and concluded that where a defendant is outside the structure where the drugs are located and is not in the process of fleeing, the “drug factory” presumption does not apply:

…[T]he presumption may apply even in cases where a defendant has exited the premises, when the defendant is caught in immediate flight, or apprehended fleeing the premises “upon the sudden appearance of the police” … . We need not determine on this appeal how far from the premises defendant may be apprehended and still be subject to the presumption. We note, however, that the boundary in these cases is not limitless. Suffice it to say, that each incremental enlargement of the distance between the defendant and the premises where the drugs are found tests the underlying justification of the presumption, and makes it susceptible to challenge. …

Applying these principles to the record before us, we conclude that defendant was not in close proximity to the drugs when they were found within the meaning of section 220.25(2). He was not in the room where the drugs were found, in an adjacent room within the same apartment, or in a “closet, bathroom or other convenient recess[].” Nor was he found immediately outside the premises while trying to escape.  People v Kims, 2014 NY Slip Op 07196, CtApp 10-23-14

 

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Failure to Request Adverse Inference Jury Instruction Re: Missing Material Evidence, Under the Facts, Did Not Constitute Ineffective Assistance of Counsel

The Court of Appeals, in a full-fledged opinion by Jude Lippman, determined defense counsel's failure to request an adverse inference jury instruction did not constitute ineffective assistance of counsel.  The defendant shot four men.  He claimed the men were about to attack him with razors. A videotape which apparently would have shown the altercation had been destroyed.  The trial took place in 2009, before the ruling in People v Handy, 20 NY3d 663 (2013), which established the adverse interest charge is mandatory upon request where evidence likely to be of material importance has been destroyed by the state. The Court of Appeals found that defense counsel's failure to request the adverse inference charge, if it was a mistake, was not enough to support a claim of ineffective assistance.  Proof presented at trial was at odds with defendant's assertion he acted in self-defense:

It is well-established that the effectiveness of a representational effort is ordinarily assessed on the basis of the representation as a whole … . One error — and only one is identified here — in the context of an otherwise creditable performance by counsel generally will not suffice in support of the conclusion that the representation was not “meaningful” … or fell below the objective standard of reasonableness required by the Federal Constitution … . There are, of course, exceptional cases in which an error is so clear-cut, egregious and decisive that it will overshadow and taint the whole of the representation …, but this is not that rare sort of case. Allowing for argument's sake that counsel erred in omitting to request the charge, that lone error was not in the context of this prosecution sufficiently egregious and prejudicial to constitute a predicate for the relief now sought. The entitlement to an adverse inference charge, such as the one defendant's attorney allegedly neglected to seek, was not conclusively established until 2013 when we decided People v Handy (20 NY3d 663 [2013]). It was in Handy that we first held such a charge to be mandatory upon request “when a defendant in a criminal case, acting with due diligence, demand[ed] evidence . . . reasonably likely to be of material importance, and that evidence ha[d] been destroyed by the State” (id. at 665). Before Handy, the availability of the charge was discretionary. At the time of defendant's trial, in 2009, competent counsel would naturally have seized upon the government's unexplained failure to preserve probably material evidence to encourage an inference adverse to the prosecution and favorable to her client, precisely as defendant's trial counsel did, but there was then no legal authority absolutely entitling her client to the judicial instruction she is now faulted for not having sought (see Handy, 20 NY3d at 669-670). Perhaps it was a mistake not to seek the charge, which likely would have been given as a matter of discretion, but if it was a mistake, it was not one so obvious and unmitigated by the balance of the representational effort as singly to support a claim for ineffective assistance. * * *

We do not exclude the possibility that, post-Handy, the failure to request a Handy charge could support an ineffective assistance claim. But the viability of such a claim, conditioned upon a demonstration of prejudice attributable to counsel's inadequacy …, would depend, in crucial part, upon facts making the adverse inference Handy merely makes available at least reasonably plausible. The present facts do not meet that condition. On this record, it cannot be said that there was even a reasonable possibility, much less a reasonable probability …that the jury, if offered the opportunity, would have elected to draw an inference adverse to the prosecution as to what the missing video would have shown. People v Blake, 2014 NY Slip Op 07086, CtApp 10-21-14

 

Criteria for Expanded Jury Instruction on the Voluntariness of a Statement Explained (Criteria Not Met Here)—Trial Judge Should Not Have Participated in Readback of Testimony (Not Reversible Error Here)

The Second Department explained when an expanded jury instruction concerning the voluntariness of defendant’s statement is proper (criteria not met here), and noted that a judge should never participate in the readback of testimony (not reversible error here):

A defendant is entitled to raise the issue of voluntariness both at a suppression hearing and at trial (see CPL 710.70[3]…). At trial, however, the court is not required to instruct the jury on the issue of voluntariness unless the defendant requests the charge, and “evidence sufficient to raise a factual dispute has been adduced either by direct or cross-[*2]examination” … . Here, nothing in the evidence adduced at trial raised a factual dispute about the voluntariness of the defendant’s statement … . * * *

…[W]e again remind the trial justice that he should not participate as a reader when readbacks are requested by a jury …, and that this type of participation should not be repeated. In this regard, the court’s practice risks erroneously conveying to the jury that the court is aligned with the party or counsel whose role the court has assumed in the readback … . “[A]s a general matter, a trial judge should shun engaging in readbacks of testimony. In the usual case, it is easy enough for a judge to assign this task to non-judicial court personnel and thereby avoid any risk of creating a misperception in the minds of the jurors”… . People v Baranov, 2014 NY Slip Op 06596, 2nd Dept 10-1-14

 

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Defense Counsel’s Failure to Request that the Jury Be Charged with an Affirmative Defense to Robbery First (Weapon Was Not Capable of Being Discharged) Constituted Ineffective Assistance

The Second Department determined defense counsel’s failure to request that the jury be charged with an affirmative defense constituted ineffective assistance:

…[T]he defendant was deprived of the effective assistance of counsel, under both the federal and state constitutions, as a result of his trial counsel’s failure to request that the trial court submit to the jury the affirmative defense to robbery in the first degree that the object that appeared to be a firearm was not a loaded weapon from which a shot, capable of producing death or other serious physical injury, could be discharged (see Penal Law § 160.15[4]…). “[T]he New York State constitutional standard for the effective assistance of counsel is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case'” … . Thus, denial of a defendant’s fundamental right to counsel generally requires reversal of the conviction and a new trial… . People v Collins, 2014 NY Slip Op 05555, 2nd Dept 7-30-14

 

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