New York State Criminal Justice
Case Summaries
Feb. 2002 - February 2011
Listed by Legal Topic

Introduction
The following are brief summaries of selected judicial decisions that were issued by the Court of Appeals, the highest appellate tribunal in New York State, which may be of interest to the criminal justice community. These summaries were prepared by the Division of Criminal Justice Services' Office of Legal Services solely as an aid to informing the reader of the Court's ruling in a particular case; they form no part of the Court's opinion and represent nothing more than an unofficial report of its proceedings. Summaries are listed by legal topic and cover decisions issued from February 2002 through February 2011. The full text of the Court's decisions may be obtained from the Court of Appeals website at http://www.courts.state.ny.us/CTAPPS/decisions.htm. New summaries will be added to this list periodically.

You may view or print a PDF format of these case summaries using Adobe Reader.

Legal Topic Index
Substantive Offenses
Burglary
Bribery
Conspiracy
Depraved Indifference Murder
Drug Offenses
Endangering the Welfare of a Child
First-Degree Murder
Forgery
Harrassment
Larceny
Robbery
Sex Offenses
Stalking
Transit Authority Rule
Unlawful Practice of Medicine
Vehicle and Traffic Law
Accusatory Instruments
Alibi Notice
Appellate Review
Attorney General Authority
Civil Forfeiture
Competency
Courtroom Closure
Criminal Procedure Law 160.50 - Sealing
Criminal Procedure Law 440.30 - Motion for DNA Testing
Criminal Procedure Law 710.30 - Notice
Death Penalty
Defense of Extreme Emotional Disturbance
Defense of Insanity
Defense of Justification
Discovery
Double Jeopardy
Effective Assistance of Counsel
Evidence
Excited Utterance
Ex Post Facto
Expert Testimony
Fifth Amendment Privilege Against Self-Incrimination
Freedom of Information Law
Grand Jury
Guilty Pleas
Harmless Error
Identification Procedures
Impeachment
Juries and Jurors
Jurisdiction
Jury Instructions
Juvenile Delinquency Proceedings
Kendra's Law
Missing Witness Charge
Motions
Orders of Protection
Preservation
Privilege
Records on Appeal
Restitution
Right to Appeal
Right to be Present
Right to Confrontation
Right to Counsel
Right to Self Representation
Search and Seizure
Sentencing
Speedy Trial
Statements and Confessions
Statute of Limitations
Statutory Presumptions
Treaties
Trials
Waiver of Appeal

 


Cases
Accusatory Instruments

People v. Johnson
(5 N.Y.3d 752, 801 N.Y.S.2d 557 - June 30, 2005)

CPL 180.50 Reduction Inquiry Was Not Required Where Felony Charge Was Dismissed

Defendant was charged in a felony complaint with a felony and misdemeanors. On the prosecution’s motion, the court dismissed the felony charge without making any statement as to the reason and, thereafter, defendant pleaded guilty to one of the misdemeanor charges. The Court of Appeals ruled that CPL 180.50 - - which requires that before permitting reduction of a felony charge to a misdemeanor, the court conduct an inquiry to determine whether the available facts and evidence provide a basis for charging a nonfelony offense - - was inapplicable. Since the felony charge was dismissed, not reduced, a CPL 180.50 reduction inquiry was not required.

 

People v. Lopez
(4 N.Y.3d 686, 798 N.Y.S.2d 356 - June 16, 2005)

Waiver Of Indictment And Prosecution By Superior Court Information (SCI) Was Proper

Indicted on drug charges, defendant pleaded guilty to one count. During the plea allocution the parties realized the indictment was defective, the court dismissed the indictment, and, upon identical terms, defendant waived indictment and pleaded guilty to a SCI. Upholding the guilty plea, the Court of Appeals held that defendant’s waiver of indictment did not violate the requirement in CPL 195.10(2)(b) that the waiver of indictment be interposed prior to the filing of an indictment. Here the defective indictment was dismissed in its entirety with leave to represent (see, CPL 210.20[1][a]). The Court noted that the trial “court obviously authorized re-presentation even though it did not formally order it, considering that both sides agreed to dispose of the case by SCI on the agreed terms.”

 

People v. Moore
(5 N.Y.3d 725, 800 N.Y.S.2d 49 - June 7, 2005)

Information Charging Trespass In The Third Degree Was Facially Insufficient

Defendant was charged in an information with criminal trespass in the third degree (Penal Law §140.10[a]) as a result of entering a public building on a State University campus in violation of a letter issued by school officials, barring him from the campus. The Court of Appeals ruled that the information was properly dismissed as facially deficient because it failed to allege that the campus building that defendant entered was in any way “fenced or otherwise enclosed in a manner designed to exclude intruders” (Penal Law § 140.10[3]) - - a required element of the crime.”

 

People v. Thomas
(4 N.Y.3d 143, 791 N.Y.S.2d 68 - February 15, 2005)

CPL 100.50 Authorizes Filing A New Information Alleging New Facts Or Offenses Not Included In The Original Information Stemming From The Same Criminal Transaction

Defendant was charged in separate informations with assault and resisting arrest stemming from a domestic violence incident. When the complainant declined to pursue the assault charge, two new informations were filed. The first, a superseding information, restated the charge of resisting arrest and elaborated on the facts. The second, a successive information, charged the new crime of harassment based upon defendant’s conduct toward the arresting officer. The Court of Appeals upheld the new informations, ruling that CPL 100.50 authorizes the filing of a new information, prior to entry of a guilty plea or commencement of trial, alleging facts or additional offenses not included in a previously filed information stemming from the same criminal transaction.

 

People v. Inserra
(4 N.Y.3d 30, 790 N.Y.S.2d 72- November 30, 2004)

Defendant’s Name On The Signature Line Of An Order Of Protection Supports Allegation That He Had Knowledge Of The Order’s Contents

Defendant was convicted of criminal contempt in the second degree (Penal Law §215.50[3]) for violating an order of protection. The supporting deposition of the officer who took the victim’s complaint stated that he "examined a copy of . . . [the] order of protection and that the defendant’s name appeared on the line for the defendant’s signature." The Court of Appeals held that the information contained adequate factual allegations for pleading purposes, based on the officer's attached deposition. The officer’s statement was sufficient to allege the element of defendant's knowledge of the order’s contents, an essential element of the crime of criminal contempt. Defendant’s name on the signature line sufficiently alleged that he received and read the terms of the order of protection.

 

People v. Tyler
(1 N.Y.3d 493, 776 N.Y.S.2d 199 - March 30, 2004)

Defendant Can Request A Supporting Deposition Prior To The Return Date On An Appearance Ticket

Issued an appearance ticket for speeding, defendant completed Part “B” on the ticket requesting a supporting deposition and hand delivered it to the town clerk the next day. The clerk accepted defendant’s not guilty plea and rescheduled the return date to two weeks earlier than was originally specified in the ticket. Defendant was served with a supporting deposition 39 days later. The Court of Appeals held that the information was properly dismissed on the ground that defendant was not timely served with a supporting deposition within 30 days after his initial request (see, CPL 100.25[2]). A defendant can a request a supporting deposition prior to the return date on an appearance ticket so long as he has not pleaded guilty and the trial has not started. He may request one when “charged by a simplified information” (CPL 100.25[2]) which occurred when he was ticketed.

 

People v. Berrus,
(1 N.Y.3d 535, 770 N.Y.S.2d 691 - November 25, 2003)

Dismissal Of Simplified Traffic Information In The Interest Of Justice Was Erroneous

Defendant received a simplified traffic information for failing to have lights on the back of a tractor. The Town Justice erroneously concluded that lights were not required because a tractor is not a motor vehicle within the meaning of Vehicle and Traffic Law (VTL) §§375 and 376 and dismissed the action in the interest of justice; the County Court affirmed. The Court of Appeals reversed and reinstated the simplified information. The Court noted that VTL §376(1)(a) requires lights on vehicles and, thus, includes tractors. In addition, while dismissal in the interest of justice may have been warranted, the record did not indicate that the Town Justice took the factors enumerated in CPL 170.40 into consideration.

 

People v. D'Angelo
(98 N.Y.2d 733, 750 N.Y.S.2d 811, - October 10, 2002)

Indictment Was Not Jurisdictionally Defective

Convicted of second-degree criminal contempt for leaving threatening voicemail messages in violation of an order of protection, defendant contended on appeal that the indictment counts were jurisdictionally defective because they failed to include factual recitals corresponding to the final clause in Penal Law §215.50(3) stating that he did not make the calls in a case "involving or growing out of labor disputes." The Court of Appeals held that the indictment was not jurisdictionally defective since the incorporation by specific reference to the statute operates without more to constitute allegations of the elements of a crime (see, People v. Cohen, 52 N.Y.2d 584 [1981]). Absent a timely motion to dismiss, the Court would not consider whether statutory mandates beyond the jurisdictional minimum required the indictment to include such factual recitals (see, CPL 200.50[7][a]) or whether the labor dispute exemption is an exception or a proviso.

   
Alibi Notice

People v. Rodriguez
(3 N.Y.3d 462, 787 N.Y.S.2d 697- November 30, 2004)

Use Of Abandoned Alibi Notice To Impeach Defense Witnesses And As Evidence Of Guilt Was Reversible Error

At defendant’s murder trial, after disavowing reliance on his alibi notice (see, CPL 250.20), but not withdrawing it, defendant introduced two witnesses who gave a new alibi with a different time frame. The Court of Appeals held that pursuant to CPL 250.20(3), the only available sanctions for failing to supply an alibi notice or presenting an alibi witness not specified in the notice are preclusion of the alibi testimony, in whole or in part, or adjournment to investigate. The sanction allowed here by the trial court - - introduction of the alibi notice by the People on rebuttal to discredit the defense witnesses and use of the notice as evidence of guilt - - was error. However, the error was harmless given the overwhelming evidence of guilt.

   
Appellate Review

People v. Jackson
(98 N.Y.2d 555, 750 N.Y.S.2d 561 - October 17, 2002)

Loss Of Wade Hearing Exhibit Did Not Require Reversal Of Suppression Ruling

The Court of Appeals rejected defendant's contention that the post-Wade hearing loss of a lineup photograph prevented appellate review of his claim that the lineup was unduly suggestive. The same analysis applicable for determining whether a lost trial exhibit precluded meaningful appellate review applies to lost exhibits of pretrial proceedings (see, People v. Yavru-Sakuk, 98 N.Y.2d 56 [2002]). The exhibit reflected information of "substantial importance" to appellate review. However, since the information was otherwise reflected in the record through a detective's testimony describing the lineup and a photocopy of the photograph, its loss did not prevent proper appellate review.

 

People v. Yavru-Sakuk
(98 N.Y.2d 56, 745 N.Y.S.2d 787 - June 4, 2002)

Loss Of Trial Exhibit Did Not Require Summary Reversal

The Court of Appeals held that the loss of a trial exhibit on appeal -- a recording of defendant's response to the victim's allegations -- does not necessarily warrant summary reversal on the ground that the loss prevented meaningful appellate review. To determine whether reversal or other corrective action is required, an appellate court must determine whether the exhibit has "substantial importance" to the issues in the case. If the exhibit contains important information needed to resolve issues raised on appeal, and the information is not otherwise contained in the record, the appellate court should order a reconstruction hearing unless the defendant establishes that such a hearing would be futile. If reconstruction is deemed necessary but cannot be accomplished, reversal is appropriate. The Court remitted the case to the lower court for a determination of the issue.

   
Attorney General Authority

People v. Gilmour
(98 N.Y.2d 126, 746 N.Y.S.2d 114 - May 2, 2002)

Request For Attorney General's Participation In Criminal Prosecution Must Be Made By Agency Head

The Court of Appeals held that the Attorney General lacked authority to prosecute a criminal case because the request to prosecute was made by a State agency's counsel, not the agency head. The request did not conform to Executive Law (EL) §63(3) which authorizes the Attorney General to prosecute crimes upon the request of certain departments, including the "head of any * * * agency of the state." "A request made by the counsel of a department does not satisfy the requirements of EL §63(3) where there is no indication that the request was made at the express behest of the department head." Since there was no showing that the agency head requested the Attorney General's participation, dismissal of the indictment was required.

     
Civil Forfeiture

County of Nassau v. Canavan
(1 N.Y.3d 134, 770 N.Y.S.2d 277 - November 24, 2003)

Nassau Forfeiture Statute Held Unconstitutional

The Court of Appeals held that the Nassau County forfeiture statute pursuant to which defendant's car was seized and forfeited after she pleaded guilty to speeding and driving while impaired by alcohol was unconstitutional. The Court noted that "when implemented pursuant to a carefully drafted statute, civil forfeiture of automobiles can be an extremely effective tool in the battle against drunk driving." However, because the Nassau ordinance permitted forfeiture of vehicles based upon the commission of any crime, misdemeanor or petty offense, including any minor traffic infraction, such forfeiture would be "grossly disproportional" to the gravity of the offenses. "By encompassing many minor and technical violations that could not justify forfeiture, the ordinance, as enacted, risks violation of the Excessive Fines Clause." The Court further ruled that the ordinance violated due process because it did not provide for a prompt post-seizure retention hearing prior to resolution of the forfeiture action.

   
Competency

People v. Mendez
(1 N.Y.3d 15, 769 N.Y.S.2d 162 - October 23, 2003)

Defendant's Dissociative Personality Disorder Did Not Render Her Incompetent To Stand Trial

Defendant who had a long history of mental illness and hospitalizations stabbed her boyfriend and was convicted of first-degree manslaughter and a weapons possession charge after a non-jury trial. Following a competency hearing where three psychiatrists testified that defendant was competent, the trial court found defendant competent and its finding was affirmed by the Appellate Division. Affirming the conviction, the Court of Appeals ruled that there was no basis to disturb the findings of the lower courts that defendant was competent. The Court declined to adopt a rule "that any defendant with dissociative disorder is incompetent as a matter of law."

   
Courtroom Closure

People v. Nazario
(4 N.Y.3d 70, 790 N.Y.S.2d 628 - February 10, 2005)

Non Family Members With A “Special Relationship” To The Defendant Should Be Admitted To A Closed Courtroom Unless People Show Specific Reason For Exclusion

At defendant’s trial on drug charges, the trial court refused to admit defendant’s drug counselor to the courtroom which was closed to the general public during the testimony of two undercover officers. Reversing defendant’s conviction, the Court of Appeals held that in addition to family members, non-family members should be admitted to an otherwise closed courtroom where the defendant has shown that he has a “special relationship” with the proposed spectator that “give[s] the defendant the kind of moral and emotional support that might be expected from a family member * * * unless the prosecution shows a specific reason for * * * exclusion.” Here defendant made a prima facie showing of a “significant personal relationship” when he identified the proposed spectator as his drug counselor. The exclusion without any further inquiry deprived defendant of his right to a public trial and was reversible error. The Court noted that for similar reasons, attendance of a defendant’s psychiatrist or clergyman might be permitted.

 

People v. Frost
(100 N.Y.2d 129, 760 N.Y.S.2d 753 - May 13, 2003)

Circumstances Warranted Ex Parte Hearings and Courtroom Closure

Affirming defendant's weapons possession conviction, the Court of Appeals held that the trial court's grant of the People's ex parte applications for a protective order pursuant to CPL 240.50 to conceal the identity of certain witnesses during voir dire and courtroom closure during the testimony of the witnesses was proper since the hearings established the witnesses' extreme and realistic fear for their safety and exceptional circumstances. Although "ex parte hearings are not to be granted lightly," the exclusion of defendant and his counsel from the hearings did not violate the defendant's right to the assistance of counsel or deprive him of his rights under the confrontation clause. The Court noted that counsel failed to propose any less restrictive alternative, the hearings did not bear on guilt or innocence but rather on the safety of the witnesses, and defendant was afforded an opportunity to examine the witnesses at trial.

   
Criminal Procedure Law 160.50 Sealing

Matter of Katherine B. v. Cataldo
(5 N.Y.3d 196, 800 N.Y.S.2d 363 - July 6, 2005)

CPL 160.50 Does Not Authorize A Court To Make Sealed Records Available To A Prosecutor For Purposes Of Making Sentencing Recommendations

After petitioners were convicted of obstructing governmental administration and disorderly conduct, the trial court ordered disclosure of their sealed records to the prosecutor for sentencing purposes. The Court of Appeals vacated the unsealing orders, ruling that the “law enforcement agency” exception in CPL 160.50(1)(d)(ii) does not encompass an ex parte request by a prosecutor to unseal records for purposes of making sentencing recommendations. A court’s authority to make sealed records available to a prosecutor after commencement of a criminal proceeding is limited “to the singular circumstance delineated in CPL 160.50 (1)(d)(i) - - where the accused has moved for an adjournment in contemplation of dismissal in a case involving marijuana charges below felony grade.”

     
Criminal Procedure Law 440.30 Motion for DNA Testing

People v. Pitts and People v. Barnwell
(4 N.Y. 3d 303, 795 N.Y.S.2d 151 - February 15, 2005)

There Is No Time Limit For Bringing A Post-Conviction Motion For DNA Testing And Defendants Do Not Have The Burden To Establish Availability Of The DNA

In two unrelated cases, the Court of Appeals held that there is no time limit for bringing a post-conviction motion under CPL 440.30(1-a) requesting DNA testing and the People, not the defendant, have the burden to show whether the evidence is available for testing. After defendants were convicted of rape, the trial courts in both cases denied without a hearing their post-conviction motions requesting DNA testing. In Pitts, the Court of Appeals ruled that the trial court correctly denied the motion since no reasonable probability existed that the defendant would have received a more favorable verdict had DNA test results been introduced at trial, given that the rape victim waited two days before reporting the crime and a defense expert testified that no physical evidence was recovered from the victim.

In Barnwell, the Court ruled that the trial court improperly denied the motion without a hearing where the judge found that defendant met the CPL 440.30(1-a) reasonable probability requirement, but relied on the People’s conclusory assertion that the evidence was no longer available and that defendant did not exercise due diligence in pursuing the motion. There is no time limit for bringing the motion for DNA testing and the People’s assertion that the evidence no longer existed based merely on a call to the property’s clerk’s office was insufficient as a matter of law under CPL 440.30(1-a). Remitting for proceedings to determine whether the DNA exists, the Court noted that “adequate information from the People might include * * * an affidavit from an individual with direct knowledge of the status of the evidence or an official record indicating its existence or nonexistence.”

     
Criminal Procedure Law §710.30 Notice

People v. Gee
(99 N.Y.2d 158, 753 N.Y.S.2d 19 - December 12, 2002)

Defendant Was Not Entitled To CPL 710.30 Notice Of Surveillance Tape Viewing

Affirming defendant's conviction for robbery of a convenience store, the Court of Appeals held that the People's failure to provide CPL 710.30 notice reflecting that the store clerk viewed the surveillance tape of the crime did not warrant preclusion of identification testimony of the witness at trial (CPL 710.30 notice of the lineup and photo identifications by the witness were provided). Because the tape merely depicted the actual robbery in progress, its viewing did not involve any identification process and raised none of the concerns relating to suggestiveness which CPL 710.30 was designed to address.

     
Death Penalty

People v. LaValle
(3 N.Y.3d 88, 783 N.Y.S.2d 485 - June 24, 2004)

Deadlock Jury Provision Rendered Death Penalty Statute Unconstitutional

Defendant was convicted of first-degree murder in the course of first-degree rape and sentenced to death. The Court of Appeals upheld the conviction but vacated the death sentence, concluding that the jury deadlock provision (see, CPL 400.27[10]) which requires the court to charge the jury that if it cannot reach a unanimous verdict on whether to sentence the defendant to death or life without parole, the court will impose a lesser sentence of life with eligibility for parole after 20 to 25 years, violates due process under the State constitution. The Court found the deadlock instruction unconstitutionally coercive because it creates a “palpable risk” that jurors who do not favor the death penalty, would vote for it in order to avoid deadlock and the possibility of parole. The Court further held that the deadlock provision cannot be severed from the statute and, thus, under the current statute, the death penalty cannot be imposed.

Three judges dissented.

 

People v. Mateo
(2 N.Y.3d 383, 779 N.Y.S.2d 399 - February 24, 2004)

Unconstitutional Death Penalty Plea Provisions Required Vacatur Of Death Sentence

Defendant was convicted of first-degree murder (Penal Law §125.27[1][a][vii]) and sentenced to death based on evidence that he kidnapped the victim, and in the course of and in furtherance of that crime, he either intentionally shot and killed the victim or commanded his wife to do so. The Court of Appeals affirmed the conviction, but held his death sentence had to be set aside under Hynes v. Tomei (92 N.Y.2d 613 [1998]) which held that the death penalty plea provisions (formerly CPL 220.10[5][e] and CPL 220.30[3][b][vii]) created an unconstitutional sentencing scheme because only those who went to trial faced the death penalty while those who pleaded guilty did not. The Court concluded that the plea provisions were operative in defendant’s case since at the time defendant went to trial there was an Appellate Division order declaring the plea provisions constitutional and Hynes was not decided until after the verdict.

Two judges dissented.

     

People v Cahill,
(2 N.Y.3d 14, 777 N.Y.S.2d 332 - November 25, 2003)

Defendant's Death Sentence Was Vacated Where Aggravating Factors Required To Elevate Intentional Murder to Capital Murder Were Not Proven

Defendant struck his wife repeatedly in the head with a baseball bat during an argument and was charged with first-degree assault. Seven months later, he entered her hospital room after visiting hours and poisoned her with potassium cyanide. He was subsequently convicted of two counts of first-degree murder based on two aggravating factors: witness elimination murder (Penal Law §125.27[1][a][v]) and intentional murder in the course of and in furtherance of second-degree burglary (Penal Law §125.27[1][a][vii]), and related charges and sentenced to death.

Without ruling any of the death penalty provisions unconstitutional, the Court of Appeals vacated the death sentence, determining that defendant's conviction for witness elimination murder was against the weight of the evidence. The Court held that under Penal Law §125.27(1)(a)(v) a defendant's motive to eliminate the victim as a witness must be "substantial" even though he may have had mixed motives. The Court concluded that defendant killed his wife for reasons unrelated to witness elimination, noting that the brutality of the prior assault indicated that defendant wanted to kill his wife because of their impending divorce, there was no indication that defendant thought the victim would testify against him and he had already confessed to the prior assault.

The Court also ruled that defendant's conviction under Penal Law §125.27(1)(a)(vii) could not stand because the burglary carried no intent other than to commit the murder. The statute requires that the underlying felony "have an objective apart from intentional murder." Here the burglary was merely an act that enabled the murder. The Court concluded that defendant intended only murder, and "that intent cannot be used both to define the burglary and at the same time bootstrap the second degree (intentional) murder to a capital crime."

The Court further ruled that the trial court erroneously denied defendant's challenge for cause to a prospective juror who indicated during voir dire that he could not set aside his views favoring the death penalty and improperly granted the People's challenge for cause to a juror who expressed reservations about the death penalty but indicated she could act impartially. Since the errors related only to the jurors' ability to serve impartially during the penalty phase, they did not affect the guilt phase. Accordingly, reversal of the sentence, but not the entire trial, was warranted. The Court reduced defendant's conviction to second-degree murder and remanded for resentencing.

Two judges dissented in part.

 

People v. Harris
(98 N.Y.2d 452, 749 N.Y.S.2d 766 - July 9, 2002)

Death Sentence Was Vacated But Conviction Was Upheld

The Court of Appeals affirmed defendant's conviction of first-degree murder but held that his death sentence had to be vacated under Matter of Hynes v. Tomei (92 N.Y.2d 613 [1998]). At the time of defendant's trial the post-death notice plea bargaining restrictions declared unconstitutional in Hynes (CPL 220.10[5][e] and CPL 220.30[3][b][vii]) were in effect. Those provisions, which allowed a defendant to be sentenced to death only after a jury trial, and not upon a guilty plea, impermissibly discouraged exercise of the Fifth Amendment right not to plead guilty and Sixth Amendment right to a jury trial. Accordingly, imposition of defendant's death sentence was unconstitutional under Hynes. The Court upheld the constitutionality of the standard for juror disqualification in death penalty cases under CPL 270.20(1)(f) which provides that prospective jurors whose views on capital punishment would cause them to automatically vote for or against the death penalty are excludable for cause.

One judge dissented.

   
Defense of Extreme Emotional Disturbance

People v. Smith
(1 N.Y.3d 610, 776 N.Y.S.2d 198 - February 17, 2004)

Offer of Proof Was Insufficient To Support Extreme Emotional Disturbance Defense

Defendant, 16-years-old, was convicted of intentional murder and related charges based upon evidence that she and a co-defendant went to the home of the 71-year-old victim with the intent to rob him, then choked him to death and stole his car. At trial defendant proffered lay persons’ testimony that she acted under an extreme emotional disturbance due to her sexual relationship with the deceased. However, the testimony was disallowed because she failed to provide pretrial notice of intent to present psychiatric evidence pursuant to CPL 250.10(2). Affirming the conviction, the Court of Appeals held that while extreme emotional disturbance can be established without psychiatric testimony, defendant’s proffered testimony was insufficient to support a finding that she acted under an extreme emotional disturbance. Accordingly, it was unnecessary to decide whether pretrial notice of the proffered testimony was required.

   
Defense of Insanity

People v. Hill
(4 N.Y.3d 876, 799 N.Y.S.2d 166 - May 10, 2005)

Psychiatric Examination Was Properly Precluded Since Defendant Failed To Give Timely Notice Of His Intent To Pursue An Insanity Defense

Affirming defendant’s murder conviction, the Court of Appeals ruled that the trial court acted within its discretion in precluding defendant’s expert from conducting a psychiatric examination in support of defendant’s insanity defense. The examination was properly precluded under the facts since CPL 250.10 (2) bars the insanity defense unless timely notice is given to prevent detrimental surprise to the prosecution. Here defendant did not request the examination or announce his intention to pursue an insanity defense until the start of jury selection, and had previously stated he would not do so.

   
Defense of Justification

People v. Aiken
(3 N.Y. 3d 718, 786 N.Y.S.2d 699 - March 31, 2005)

A Person Standing In The Doorway Of His Apartment Has A Duty To Retreat Before Using Deadly Physical Force

Believing he was about to be stabbed by the victim, defendant struck him with a metal pipe as they stood arguing in the doorway of defendant’s apartment. Affirming defendant’s manslaughter conviction, the Court of Appeals held that while defendant was entitled to a justification charge (Penal Law §35.15), the trial court properly denied his request to instruct the jury that he had no duty to retreat because he was standing in the doorway, or threshold, of his apartment. The Court held that the home exception to the duty to retreat before defensively using deadly physical force against another (Penal Law §35.15[2][a][i]), does not apply when the defendant is standing in the doorway between his apartment and the common hallway of a multi-unit building. “[R]equiring a person standing in the doorway to step inside the apartment to avoid a violent encounter is not the equivalent of mandating retreat from one’s home.”

 

People v. Jones
(3 N.Y.3d 491, 788 N.Y.S.2d 651- December 16, 2004)

Home Exception To Duty To Retreat Applies To Occupants Of The Same Dwelling

Defendant was convicted of manslaughter as a result of choking his live-in girlfriend to death after she picked up a knife while they were arguing. The Court of Appeals held that the home exception to the duty to retreat applies to occupants of the same household (see, Penal Law §35.15[2][a][i]). Thus, the trial court erred when it refused to instruct the jury in its charge on justifiable homicide that because defendant was in his own home, he had no duty to retreat. The Court noted that the home exception “has particular importance in cases of domestic violence, most often against women.” However, the omission was harmless error since the overwhelming evidence disproved the justification defense.

 

People v. Hernandez
(98 N.Y.2d 175, 746 N.Y.S.2d 434 - June 13, 2002)

Instruction That Defendant Had "No Duty To Retreat" From Stairwell Was Not Warranted

Defendant was convicted of manslaughter following a trial at which he pursued a justification defense and asserted that he shot the victim in the stairwell of his apartment building after a struggle in the lobby. Affirming the conviction, the Court of Appeals held that defendant was not entitled to a "no duty to retreat" instruction under Penal Law §35.15(2)(a)(i) which provides that a person has no duty to retreat if a person is "in his [or her] dwelling and not the initial aggressor." The lobby and stairwell did not fall within the definition of "dwelling" for purposes of the justification statute since these areas were not under defendant's exclusive possession and control and could not be characterized as his living quarters.

 

People v. Deis
(97 N.Y.2d 717, 740 N.Y.S.2d 284 - February 14, 2002)

Failure To Give Penal Law §35.20(3) Justification Charge Was Reversible Error

Defendant was convicted of criminally negligent homicide because he fatally stabbed the victim who entered his store after being asked to leave and created a disturbance. The Court of Appeals ruled that the trial court's failure to give a charge on justification through use of deadly force in resisting a burglary pursuant to Penal Law §35.20(3) was reversible error. A trier of fact could reasonably conclude that although the victim originally entered the store lawfully as a licensee, his entry became unlawful when he refused defendant's order to leave the premises (see, Penal Law §140.00[5]) and the victim's violent conduct and threats to kill defendant and his brother supported the reasonableness of defendant's belief that deadly physical force was necessary to prevent or terminate a burglary.

   
Discovery

People v. Yavru-Sakuk
(4 N.Y. 3d 814, 797 N.Y.S.2d 19 - March 29, 2005)

Non-Disclosure Of Diary Of Victim’s Mother Required Remittal To Determine Effect On Verdict

Defendant, a dentist, was convicted of sex abuse of a patient. The Appellate Term affirmed the conviction, ruling with regard to defendant’s claim that he had a right to review the entire diary of the victim’s mother, rather than two pages written in Turkish, that defendant had not met his burden, pursuant to CPL 240.75, that the remainder of the diary would have established a reasonable possibility that the result would have been different. The Court of Appeals ruled that the Appellate Term erred in relying on the People’s representation that no other portion of the diary was relevant when the People themselves had not reviewed it. The Court remitted to the trial court for an in-camera inspection as to whether any other portion of the diary is relevant and whether there is a reasonable possibility that the non-disclosure materially contributed to the verdict (CPL 240.75). If so, the relevant portions should be turned over to defendant and a new trial ordered.

 
People v. Jenkins
(98 N.Y.2d 280, 746 N.Y.S.2d 651 - June 13, 2002)

Denial Of Preclusion Motion Based On Untimely Disclosure Of Ballistics Report Was Not Error

Affirming defendant's murder conviction, the Court of Appeals held that the trial court did not abuse its discretion in denying defendant's motion to preclude evidence contained in a ballistics report which the People did not disclose until after defendant had begun to present his defense. The preclusion of evidence is a severe sanction which should not be employed unless there are no lesser sanctions which can cure any potential prejudice arising from the failure to disclose. Defendant was not unduly prejudiced by the untimely disclosure since the testimony of the ballistics expert did not prevent defendant from pursuing his defense that there were multiple shooters.

One judge dissented.
     
Double Jeopardy

People v. Biggs
(1 N.Y.3d 225, 771 N.Y.S.2d 49 - December 2, 2003)

Judge's Refusal To Submit Murder Count To Jury Due To Insufficient Evidence Was Tantamount To An Acquittal For Double Jeopardy Purposes

Defendant was indicted for intentional murder and depraved indifference murder after he shot and killed two people. The trial court found that there was insufficient evidence to support the intentional murder counts and submitted only depraved indifference murder and second-degree manslaughter as a lesser included offence to the jury. Defendant did not move for a trial order of dismissal. The jury acquitted him of depraved indifference murder and deadlocked on the manslaughter counts. Defendant was subsequently indicted for first-degree and second-degree manslaughter and convicted of first-degree manslaughter.

The Court of Appeals held that the first-degree manslaughter conviction was barred on double jeopardy grounds. Under the facts the trial court's refusal to submit the intentional murder count to the jury was a dismissal for insufficient evidence and, thus, the equivalent of an acquittal for double jeopardy purposes. In addition, "for double jeopardy purposes, intentional murder in the second degree and manslaughter in the first degree should be considered the same offense as no additional element of proof is required to sustain a conviction of first degree manslaughter beyond which is required for second-degree murder." The Court ordered a new trial on the second-degree manslaughter charge.

 

People v. Gonzalez and People v. Lopez
(99 N.Y.2d 76, 751 N.Y.S.2d 830 - October 24, 2002)

Double Jeopardy Claim Required Preservation

Defendants claimed that their simultaneous convictions for criminal sale of a controlled substance (Penal Law §220.39[1]) and criminal sale of a controlled substance in or near school grounds (Penal Law §220.44[2]) based on a single drug transaction violates the double jeopardy prohibition against multiple punishments for the same offense. Affirming the convictions, the Court of Appeals held that, unlike in People v. Michael (48 N.Y.2d 1 [1979]), the permissibility of multiple punishments in this situation presents a question of statutory construction which requires preservation. Since the issue was not preserved, the Court could not consider it (see, CPL 470.05[2]). The Court also ruled that the admission of expert testimony on street-level narcotics transactions for the limited purpose of explaining the absence of prerecorded buy money and the sellers' roles in street level drug transactions was not error.

One judge dissented in People v. Lopez.
   
Effective Assistance of Counsel

People v. Fernandez
(_N.Y.3d_ - September 13, 2005)

Defendant Failed To Establish He Was Denied Effective Assistance Of Counsel Due To His Lawyer’s Alleged Failure To Relay A Plea Offer

Defendant failed to establish that he was denied effective assistance of counsel based on his lawyer’s alleged failure to relay a plea offer where defendant failed to meet his burden of establishing that a plea offer was made, that defense counsel failed to inform him of the offer, and that he would have been willing to accept the offer (see, People v. Rogers, 8 A.D.3d 888, 890-891 [3d Dept. 2004]). Assuming such an offer was made, defendant failed to establish that he would have accepted it. His self-serving statement that he would have accepted the plea, despite his claimed innocence, was insufficient to warrant a hearing in light of his rejection of a similar plea days before and counsel’s affirmation that at the time of the alleged offer he believed the charges would be dismissed because the People could not locate a necessary witness.

 

People v. Andrades
(4 N.Y. 3d 355, 795 N.Y.S.2d 497 - March 29, 2005)

Counsel’s Motion To Withdraw After Learning Of Defendant’s Intent To Commit Perjury At Huntley Hearing Did Not Deny Defendant Effective Assistance Of Counsel

Aware that defendant intended to commit perjury at the Huntley hearing, counsel initially attempted to dissuade him from testifying, advised the court that he faced an ethical dilemma concerning defendant’s right to testify, and asked to be relieved. When the motion was denied, defendant testified in narrative form and counsel did not use the perjured testimony in argument. The Court of Appeals held that defense counsel properly discharged his ethical obligations and defendant was not denied the right to a fair hearing or the effective assistance of counsel. Also, defendant had no right to be present at the colloquy regarding counsel’s intent to present defendant’s testimony in narrative form since it involved procedural matters.

 

People v. Henriquez
(3 N.Y.3d 210, 785 N.Y.S.2d 384 - October 19, 2004)

Defendant Was Not Denied A Fair Trial When, At His Request, The Court Allowed The Trial To Proceed Without A Defense

The trial court allowed defendant’s murder trial to proceed without a defense after defendant refused to let his assigned counsel participate and he declined to represent himself. The trial court denied counsel’s request to be relieved and instructed him to remain available in the event defendant changed his mind. Affirming the conviction, the Court of Appeals held that defendant voluntarily waived the right to effective assistance of counsel when he refused self-representation and the participation of his counsel. The Court noted that defendant’s responses to the trial court’s inquiries indicated that he acted with full knowledge of the consequences of his actions and he was aware that he could change his mind at any time.

One judge dissented.

 

People v. Stultz
(2 N.Y.3d 277, 778 N.Y.S.2d 431 - May 4, 2004)

Standard For Effective Assistance Of Appellate Counsel Is “Meaningful Representation”

The Court of Appeals established that the standard for effective assistance of appellate counsel is the same as the standard for effective assistance of trial counsel - - the Baldi “meaningful representation” standard (see, People v. Baldi, 54 N.Y.2d 137 [1981]). The Court stated that “appellate advocacy is meaningful if it reflects a competent grasp of the facts, the law and appellate procedure, supported by appropriate authority and argument.” Appellate counsel is not required to “brief or argue every issue that may have merit” and has “latitude in deciding which points to advance and how to order them.” Here defendant’s appellate attorneys were not ineffective because they failed to argue on direct appeal that trial counsel was ineffective where the claim was meritless.

 

People v. Lewis
(2 N.Y.3d 224, 777 N.Y.S.2d 798 - April 6, 2004)

Defendant Was Denied Effective Assistance Of Counsel When His Attorney Testified Against Him At A Sirois Hearing

Prior to jury selection at defendant’s trial on drug charges, the court held a Sirois hearing (see, Matter of Hotlzman v. Hellenbrand and Sirois, 92 A.D.2d 405, 415 [2d Dept. 1983]) to test the prosecution’s claim that defendant threatened a prosecution witness who refused to testify. The Court of Appeals reversed defendant’s conviction, ruling that he was denied effective assistance of counsel when his attorney, without protest, testified adversely to him at the hearing. “Attorneys should withdraw when called upon to testify against their clients on a significant issue.”

Two judges dissented.

 

People v. Taylor
(1 N.Y.3d 174, 770 N.Y.S.2d 711 - December 23, 2003)

Defendant Received Effective Assistance Of Counsel

Affirming defendant's murder conviction, the Court of Appeals ruled that he was not denied effective assistance of counsel. The Court concluded that defense counsel presented a cogent defense and defendant failed to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged failures. The Court noted that defense counsel objected almost 50 times during the cross-examination of the alibi witness and "[s]he may have concluded that further objections would serve only to annoy the trial court . . . or the jury . . . . Additionally, to the extent the trial prosecutor's acts were as offensive as defendant's now claims . . . defense counsel might have reasonably calculated that, if allowed sufficient latitude, he would alienate the jury."

 

People v. McDonald
(1 N.Y.3d 109, 769 N.Y.S.2d 781 - November 24, 2003)

Counsel's Erroneous Advice Regarding Deportation Consequences of Guilty Plea Did Not Warrant Vacatur of Plea

Defendant pleaded guilty after his lawyer erroneously advised him that he would not be subject to deportation. When he subsequently received notice of a deportation hearing, he moved to vacate his plea on the grounds of ineffective assistance of counsel. The Court of Appeals held that under certain circumstances defense counsel's incorrect advice as to deportation consequences of a plea may constitute ineffective assistance of counsel. However, the Court upheld defendant's plea because he failed to establish that he would not have pleaded guilty but for the erroneous advice. Under Strickland v. Washington (466 U.S. 668 [1984]), a defendant alleging ineffective assistance is required to show counsel's performance was deficient and that he was prejudiced. To establish prejudice, defendant's allegations must "show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty."

 

People v. Abar
(99 N.Y.2d 406, 757 N.Y.S.2d 219 - February 18, 2003)

Defense Counsel's Prior Prosecution Of Defendant Did Not Create A Conflict Requiring Reversal

Defendant moved to vacate his conviction, claiming that his defense attorney's prior employment as a prosecutor during which she prosecuted him on several of the charges involved in his plea bargain created a conflict of interest which deprived him of the effective assistance of counsel. Affirming the conviction, the Court of Appeals held that there was no showing that his attorney's prior employment created a conflict of interest which operated on the defense. The Court noted that there was no evidence that defense counsel obtained any information about defendant through her prior employment as a prosecutor that compromised her representation of him. The Court cautioned against such potential conflicts but declined to adopt a rule of automatic reversal in such cases.

One judge dissented.
 

People v. Berroa
(99 N.Y.2d 143, 753 N.Y.S.2d 12 - November 21, 2002)

Counsel's Stipulation To Facts Contradicting Defense Witnesses' Testimony Denied Defendant Effective Assistance Of Counsel

At defendant's murder trial, two defense witnesses gave alibi testimony which contradicted their earlier statements to defense counsel that they had no knowledge of defendant's whereabouts at the time of the crime. To avoid being called as a witness to impeach them, defense counsel stipulated that the witnesses' testimony contradicted their earlier statements to her. Reversing the conviction, the Court of Appeals held that counsel's stipulation created a conflict of interest resulting in the denial of effective assistance of counsel. Rather than cure the conflict as intended, the stipulation exacerbated it "by eviscerating the credibility" of the defense case. The Court noted that a lawyer should withdraw when it appears that he or she will be called as a witness and the testimony will be prejudicial to his or her client.
 

People v. Harris and People v. Wright
(99 N.Y.2d 202, 753 N.Y.S.2d 437 - November 21, 2002)

Unknowing Concurrent Representation Of Defendant And Prosecution Witness Did Not Deny Defendant Effective Assistance Of Counsel

Affirming defendants' convictions for drug offenses, the Court of Appeals held in Harris that defendant's attorney's unknowing pre-trial concurrent representation of the confidential informant, a key prosecution witness, on unrelated charges did not create a conflict of interest that deprived defendant of effective assistance of counsel. Since the attorney was unaware of the simultaneous representation, the conflict could not operate on the defense. Similarly, in Wright defendant was not denied effective assistance because his attorney previously represented a prosecution witness. The witness's consent to cross-examination and his waiver of the attorney client privilege obviated any potential conflict.
     
Evidence

People v. Hanley
(5 N.Y.3d. 108, 800 N.Y.S.2d 105 - June 29, 2005)

Failure To Allow Testimony Regarding Prosecution Witnesses’ Reputation For Truth And Veracity Was Reversible Error

Defendant was convicted of robbery and menacing based on the testimony of two bartenders that defendant threatened them with a gun while demanding money. The trial court refused to allow a co-worker of the complainants to testify that they had a bad reputation for truth and veracity in the community. Reversing the conviction, the Court of Appeals held that once a foundation is laid, a party has a right to present evidence that a key opposing witness who gave substantive evidence has a bad reputation for truth and veracity in the community. Here the requisite foundation was established and the failure to allow such testimony was highly prejudicial since it deprived the jury of a tool to properly assess the credibility of the two key prosecution witnesses.

 

People v. Resek
(3 N.Y.3d 385, 787 N.Y.S.2d 683- November 23, 2004)

Admission Of Uncharged Crime Evidence To Explain Why Police Stopped Defendant’s Vehicle Was Reversible Error

Defendant was convicted of a drug charge, based in part on a search of the car he was driving. To enable the prosecution to explain why defendant was arrested, the trial court allowed police to testify that they had monitored the vehicle based on a report that it was stolen. The Court of Appeals reversed the conviction ruling that the background testimony relating to defendant’s possession of a stolen car deprived him of a fair trial since the jury was not informed that the grand jury had dismissed the stolen car charges. While “[u]nder certain circumstances, and when coupled with proper limiting instructions, testimony of this kind may fill in gaps in ‘interwoven events,’” such uncharged crime testimony may “introduce more prejudice than evidentiary value.” Here the prejudice outweighed the probative value of the evidence where it was admitted over defense objection in a “one-sided form” which left the jury with an “incomplete and prejudicial narrative.”

Three judges dissented.

 

People v. Calabria
(3 N.Y.3d 80, 783 N.Y.S.2d 321 - June 8, 2004)

Identification Testimony Of One Witness Supported Robbery Conviction

The Court of Appeals held that there was legally sufficient evidence to support defendant’s robbery and burglary conviction based upon the identification testimony of the victim who positively identified defendant at a lineup and in court. The Court opined that the testimony of one witness can be sufficient to support a conviction and it is typically the province of the jury to determine a witness’s credibility. While incredibility as a matter of law may result when the sole prosecution witness “gives irreconcilable testimony pointing to both guilt and innocence,” here the victim’s testimony was unwavering. Since the jury’s verdict was rational, it could not be disturbed.

Two judges dissented.

 

People v. Massie
(2 N.Y.3d 179, 777 N.Y.S.2d 794 - April 6, 2004)

Court Properly Ruled That Cross-Examination Regarding Suggestive Photo Identification Would Open The Door To Otherwise Inadmissible Lineup Testimony

The Court of Appeals ruled that it was not an abuse of discretion when the judge at defendant’s robbery trial ruled in limine that if defense counsel elicited testimony regarding a suggestive photo identification procedure, it would open the door to cross-examination regarding the lineup identification held in violation of defendant’s right to counsel. “[A] trial court should decide ‘door opening’ issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression.” The trial court had ample basis to conclude that the lineup evidence was “necessary to meet” defendant’s proposed attempt to use the suggestive photo identification procedure to suggest that the witness could not identify defendant without being helped or coached.

 

People v. Shelton
(1 N.Y.3d 614, 777 N.Y.S.2d 9 - February 19, 2004)

The Trial Court Properly Applied the “Prompt Outcry” Exception To The Hearsay Rule

The Court of Appeals held that the trial court properly applied the “prompt outcry” exception to the hearsay rule when it permitted the complainant’s daughter to testify. The Court noted that an outcry of rape is prompt if made “at the first suitable opportunity.” In determining that the complaint was prompt in this case, the trial court properly considered that the rape occurred late at night, defendant warned the complainant not to tell anyone, and defendant lived in the same apartment building as the 81-year-old complainant.

 

People v. Andrew
(1 N.Y.3d 546, 772 N.Y.S.2d 235 - December 18, 2003)

Redaction Of Notation From Complainant's Hospital Record Was Not Error

Affirming defendant's assault conviction, the Court of Appeals ruled that the trial court properly exercised its discretion in redacting a physician's notation from the complainant's hospital record stating that it was impossible to obtain the complainant's consent to surgery because he was too drunk. The Court noted that the laboratory results showing the complainant's toxicology level were available to defendant and he did not rely on the purported intoxication of the complainant. The Court further held that the trial court did not violate defendant's right to be present during the issuance of supplemental instructions. "Defendant failed to come forward with substantial evidence to rebut the presumption of regularity which attaches to all criminal proceedings."

 

People v. Maldonado
(97 N.Y.2d 522, 743 N.Y.S.2d 389 - April 25, 2002)

Composite Sketch Was Inadmissible Absent Claim Of Recent Fabrication

The Court of Appeals held that it was reversible error to admit a composite sketch to rehabilitate the victim's identification testimony at trial. A composite sketch is inadmissible "simply to counteract evidence * * * which casts doubt on the reliability of [a] complainant's identification." The Court noted, however, that a composite sketch may be admissible as a prior consistent statement when the testimony of an identifying witness is assailed as a recent fabrication. Here, however, there was no claim of recent fabrication and the People urged the jury to infer guilt based upon defendant's resemblance to the sketch.

     
Excited Utterance

People v. Johnson
(1 N.Y.3d 302, 772 N.Y.S.2d 238 - December 22, 2003)

Admission of Assault Victim's Statement As An Excited Utterance Was Harmless Error

Defendant was convicted of assault as a result of stabbing the victim in the eye. The victim was unavailable to testify at trial. The Court of Appeals ruled that victim's statements made in an interview with police approximately one hour after the incident were improperly admitted as excited utterances because the victim, despite pain, was able to "engage in reasoned reflection upon the content of his statement." A "serious injury may be a significant factor," but not the only factor, in determining whether the declarant remains under the stress of a startling event. The error was harmless, however, where eyewitness police testimony established that defendant was holding a bloodstained ice pick while struggling with the victim, who was bleeding from his eye. Also, the victim's immediate cries – "he stabbed me," were properly admitted as excited utterances and established defendant's identity as the perpetrator.

One judge dissented.

     
Ex Post Facto

Kellogg v. Travis
(100 N.Y.2d 407, 764 N.Y.S.2d 376 - July 1, 2003)

Amendment Expanding the DNA Databank Can Be Applied Retroactively

The Court of Appeals held that retroactive application of the 1999 amendment to the DNA identification index Law (Executive Law §995-c) which increases the categories of offenses subject to the index, does not violate the ex post facto clause. Convicted of violent felony offenses in 1994, defendant while on parole in 2000 was required to submit a DNA sample pursuant to the 1999 amendment. Rejecting the defendant's ex post facto claim, the Court stated that the ex post facto clause applies only to penal statutes which impose punishment. Because the DNA identification index is to be used in future investigations "for law enforcement identification purposes" and for "criminal defense purposes," and not as punishment for past crimes, the retroactive application of the amendment comports with the ex post facto clause.
   
Expert Testimony

People v. Hicks
(2 N.Y.3d 750, 778 N.Y.S.2d 745 - April 1, 2004)

Officer’s Expert Testimony Regarding Drug Packaging Was Proper

After a buy-and-bust operation, police arrested defendant and found 14 glassine envelopes of heroin on his person. Affirming his drug conviction under Penal Law §220.16[1]), the Court of Appeals ruled that the trial court properly allowed the arresting officer to testify that the packaging of the drugs recovered from defendant was inconsistent with personal use and consistent with packaging the officer had encountered in prior drug sale arrests. The evidence was helpful to the jury in understanding the evidence and reaching a verdict. Since it “was beyond the ken of the average juror,” it was irrelevant that the evidence did not relate to the ultimate issue in the case.

 

People v. Smith
(2 N.Y.3d 8, 776 N.Y.S.2d 209 - April 1, 2004)

Admission of Expert Testimony Regarding Multi-member Narcotics Operations Was Error Where Defendant Acted Alone

At defendant’s trial on drug charges, the trial court admitted expert testimony regarding money handling aspects of multi-member street-level narcotics operations to explain why police do not always recover buy money on the defendant following buy-and-bust operations. The Court of Appeals ruled that, unlike in People v. Brown (97 N.Y.2d 500 [2002]), the trial court abused its discretion in allowing such expert testimony since the evidence presented was that defendant acted alone. However, the error was harmless since the evidence of guilt was otherwise overwhelming.

 

People v. Brown
(97 N.Y.2d 500, 743 N.Y.S.2d 374 - March 19, 2002)

Expert Testimony Regarding Street Level Narcotics Operations And Terminology Was Admissible

The Court of Appeals held that the trial court did not abuse its discretion in allowing a police officer to give expert testimony at defendant's trial on drug sale charges regarding the general operating methods and terminology used in street-level narcotics transactions to explain why no buy money or drugs were found on defendant upon her arrest at the scene. However, the Court further held that trial courts must issue appropriate limiting instructions which inform the jury that it is free to reject such testimony and that the testimony should not be taken as proof that the defendant engaged in the sale of narcotics. The Court cautioned that such expert testimony is not necessarily proper in every case where a defendant asserts a misidentification defense.

One judge dissented.

   
Fifth Amendment Privilege Against Self-Incrimination

Matter Of Nassau Co. Grand Jury Subpoena Duces Tecum v. Spitzer
(4 N.Y.3d 665, 797 N.Y.S.2d 790 - May 3, 2005)

Individual Attorneys In A Law Firm Cannot Invoke Privilege Against Self-Incrimination To Avoid Responding To A Grand Jury Subpoena For The Firm’s Records

The Attorney General issued a subpoena duces tecum in an automobile insurance fraud case, seeking production of a law firm’s financial and payment records and retainer and closing statements. Relying on Bellis v. United States (417 U.S. 85 [1974]), the Court of Appeals ruled that an individual partner of a law firm cannot rely on the state or federal constitutional privilege against self-incrimination “to avoid producing the records of a collective entity which are in his possession in a representative capacity, even if these records might incriminate him personally.” Here the individual partners could not claim the privilege where the appellant law firm is a collective entity under Bellis and the records subpoenaed were organization records held in a representative capacity. The Court further concluded that the privilege may not be invoked by an individual partner subpoenaed to produce records required to be kept by law.

 

People v. Slavin
(1 N.Y.3d 392, 775 N.Y.S.2d 210 - February 17, 2004)

Admission of Photos Of Defendant’s Body Tattoos Did Not Violate Defendant’s Fifth Amendment Rights

Defendant was convicted of attempted murder and related charges arising from his attack on two Mexican laborers. Affirming the conviction, the Court of Appeals ruled that the People’s introduction of photographs of defendant’s body tattoos which included, inter alia, a Nazi swastika, as evidence of motive for committing a hate crime did not violate his Fifth Amendment privilege against self-incrimination. The photos were taken over defendant’s objection during arrest processing. The Court noted that the privilege protects an accused from being compelled to testify against himself, or otherwise provide testimony of a testimonial nature. It does not preclude a “defendant from being required to exhibit physical characteristics or to provide physical exemplars.” Here the tattoos were physical characteristics, not forced testimony.

Two judges dissented in part.

   
Freedom Of Information Law

Matter of New York Times Co. v. City of New York Fire Dept.
(4 N.Y. 3d 477, 796 N.Y.S.2d 302 - March 24, 2005)

911 Calls Of September 11 Victims And Their Survivors Were Held Exempt From FOIL Disclosure As An Unwarranted Invasion Of Personal Privacy

The New York Times and survivors of eight men who died in the attacks on September 11, 2001 sought disclosure under the Freedom of Information Law (FOIL) of various New York City Fire Department (NYFD) records relating to the events of September 11. The Court of Appeals held that the dead and their surviving relatives have a protected privacy interest under FOIL and that words spoken in the 911 calls of September 11 - - other than those of 911 operators or callers who themselves or their survivors seek disclosure - - were exempt from disclosure as an unwarranted invasion of personal privacy (Public Officers Law [POL] §87[2][b]). NYFD dispatch calls were held to be “intra-agency materials” which had to be disclosed to the extent they consist of factual statements or instructions to staff that affect the public, but opinions and recommendations could be redacted (POL § 87[2][g]). Records of interviews with firefighters were also subject to disclosure. Since they were intended to be a public “historical record,” the privacy exemption was inapplicable, except for those portions which would cause “serious pain or embarrassment to interviewees” if disclosed. As to tapes/transcripts which the U.S. Department of Justice (DOJ) intended to use as exhibits at the trial of Zacarias Moussaoui, the Court directed that DOJ should be given an opportunity to demonstrate that the exhibits are subject to the law enforcement exemption, i.e., that they were “compiled for law enforcement purposes” and disclosure would “interfere with law enforcement investigations or judicial proceedings” or “deprive Moussaoui of a right to a fair trial or impartial adjudication” (POL §87[2][e]).

Three judges dissented in part.

 

Matter of New York Civil Liberties Union v. City of Schenectady
(2 N.Y.3d 657, 781 N.Y.S.2d 267 - June 29, 2004)

Police Incident Reports Pertaining To Use Of Force Are FOILable

The New York Civil Liberties Union made a Freedom of Information Law (FOIL) request to the City of Schenectady for “incident reports prepared by [Schenectady] police officers pertaining to the use of force.” The Court of Appeals held that the City must “articulate a “particularized and specific justification” for non-disclosure of such records (see, Gould v. New York City Police Department, 89 N.Y.2d 267 [1996]), and remitted the matter to the Supreme Court for a determination of what documents should be produced. The Court declined to consider whether Gannett Co. v. James (86 A.D.2d 744 [4th Dept. 1982], lv. denied, 56 N.Y.2d 502 [1982]) which held that “Use of Force” forms were exempt from FOIL under the exemption for interagency records (see, Public Officers Law §87[2][g]) was still viable after Gould since the City did not have such forms and, therefore, the issue in this case was academic.

   
Grand Jury

People v. Hill
(5 N.Y.3d 772, 801 N.Y.S.2d 794 - July 6, 2005)

Prosecutor’s Misleading Answers To Grand Jury’s Inquiry Required Dismissal Of The Indictment Pursuant To CPL 210.20

When questioned by the Grand Jury about witnesses defendant was seeking to have testify, the prosecutor, although he knew they were alibi witnesses, did not disclose that information to the Grand Jury. The Grand Jury voted not to hear the witnesses and returned a true bill. The Court of Appeals held that the lower court properly dismissed the indictment with leave to represent. The prosecutor’s “inaccurate and misleading” response to the Grand Jury’s legitimate inquiry substantially undermined the integrity of the proceeding and potentially prejudiced defendant (CPL 210.20[1][c]).

Two judges dissented.

 

People v. Smith
(4 N.Y. 3d 806, 796 N.Y.S.2d 1 - March 24, 2005)

The Denial Of Defendant’s CPL 210.30 Motion Was Not Reviewable Since Defendant Did Not Challenge The Legal Sufficiency Of The Trial Evidence

Following indictment, defendant moved under CPL 210.30 to inspect the grand jury minutes and dismiss the indictment for legal insufficiency of the grand jury evidence. The trial court found the evidence legally sufficient and, after a hearing, concluded that a discrepancy between the date of the crime in the minutes and the indictment, was a typographical error. Defendant was subsequently convicted after trial. The Court of Appeals held the trial court was not required to dismiss the indictment. Because the trial court conducted the hearing in the context of defendant’s CPL 210.30 motion to inspect and dismiss, the issue was not reviewable. CPL 210.30[6] provides that the validity of an order denying any motion to dismiss made pursuant 210.30 is not reviewable on an appeal from a conviction based upon sufficient trial evidence. Defendant did not challenge the legal sufficiency of the trial evidence.

 

People v. Aarons
(2 N.Y.3d 547, 780 N.Y.S.2d 533 - June 8, 2004)

Formal Vote Of 12 Grand Jurors Is Required To Dismiss A Charge

When the grand jury foreperson advised the prosecutor that the jury was having difficulty reaching a decision, the prosecutor asked the grand jury to cease deliberations so she could present additional evidence which she did the following week and defendant was indicted. Upholding the indictment, the Court of Appeals held that the dismissal of pending charges constitutes an affirmative official action of the grand jury under CPL 190.25(1) and requires a formal vote with 12 grand jury members concurring in the result. Since the initial failure of the grand jury to return an indictment did not constitute a dismissal of the charges, the prosecutor was not required to obtain leave of the court before presenting the additional evidence.

Two judges dissented.

   
Guilty Pleas

People v. Hunter
(5 N.Y.3d 750, 801 N.Y.S.2d 246 - June 30, 2005)

Guilty Plea Forfeited Claim That Criminal Court Failed To Conduct CPL 180.50 Reduction Inquiry

Defendant was charged in a felony complaint with two felony counts of assault and a misdemeanor weapon possession count. Thereafter, the People reduced the felony assault charges to misdemeanor assault and defendant pleaded guilty to that charge without the trial court conducting the requisite CPL 180.50 reduction inquiry, i.e., “whether the facts and evidence provide a basis for charging a nonfelony offense.” Affirming the conviction, the Court of Appeals held that defendant’s guilty plea forfeited any claim that the trial court failed to conduct the CPL 180.50 inquiry.

 

People v. Catu
(4 N.Y. 3d 242, 792 N.Y.S.2d 887 - March 24, 2005)

Failure To Advise Defendant Of Mandatory Post-release Supervision Required Vacatur Of Guilty Plea

The Court of Appeals ruled that vacatur of defendant’s guilty plea was required because the sentencing court failed to advise him that his sentence included a mandatory period of five years post-release supervision. While a trial court need not advise defendants of collateral consequences, it must advise defendants of the direct consequences of a guilty plea. Mandatory post-release supervision is a direct consequence since it “has a definite, immediate and largely automatic effect on defendant’s punishment.” A defendant pleading guilty must be aware of the post-release supervision component of the sentence “in order to knowingly, voluntarily and intelligently choose among alternative courses of action.” Defendant was not required to establish that he would have declined to plead guilty had he known of the post-release supervision.

 

People v. Seeber
(4 N.Y. 3d 780, 793 N.Y.S.2d 826 - February 17, 2005)

Trial Court’s Denial Of Defendant’s Motion To Withdraw Her Guilty Plea Was Not An Abuse Of Discretion

The Court of Appeals held that the trial court did not abuse its discretion by denying defendant’s motion to withdraw her negotiated guilty plea to felony murder. There was no basis to permit withdrawal of her plea since nothing in the plea allocution negated any element of the offense to which she pleaded guilty or called into question the voluntariness of her plea. The Court rejected defendant’s claim that she failed to establish an element of the underlying burglary - - that she remained unlawfully - - noting that, in any event, a defendant is not required to acknowledge committing every element of the pleaded to offense.

Two judges dissented.

 

People v. Marrero
(3 N.Y.3d 762, 788 N.Y.S.2d 697- December 2, 2004)

People Cannot Not Withdraw Consent To Guilty Plea If Defendant Cannot Not Be Adjudicated A Second Felony Offender At Resentencing

The Appellate Division remitted defendant’s case to the trial court for resentencing based on the sentencing court having improperly adjudicated him a second felony offender, and permitted the People to allege a different prior felony conviction as a basis for the adjudication. The Court of Appeals held that in the event defendant cannot be properly adjudicated a second felony offender, the People cannot withdraw their consent to his guilty plea.

 

People v. Valencia
(3 N.Y.3d 714, 786 N.Y.S.2d 374 - October 14, 2004)

Court Conducted Sufficient Inquiry Regarding Defendant’s Violation Of The Plea Agreement

Pursuant to a plea agreement, defendant pleaded guilty to a felony drug charge and was required to successfully complete a drug rehabilitation program whereupon he would be permitted to withdraw his plea, plead to a misdemeanor and receive a sentence of time served, but if he failed to complete the program he would receive a prison sentence. Upon allegations that he violated the plea agreement by failing to complete the program, the sentencing court conducted an inquiry and sentenced him to prison. The Court of Appeals held that the sentencing court conducted a sufficient inquiry to determine that a violation of the plea agreement occurred. Unlike in Torres v. Berbary (340 F3d 63, 71 [2d Cir. 2003]), there was no need for an evidentiary hearing when defendant did not dispute that he violated the agreement.

 

People v. Konieczny
(2 N.Y.3d 569, 780 N.Y.S.2d 546 - June 10, 2004)

Challenge To Order Of Protection Was Forfeited By Guilty Plea To Contempt Charge

Defendant pleaded guilty to attempted criminal contempt based upon allegations that he violated an order of protection issued incident to a bad check prosecution. On appeal he asserted that the conviction should be reversed because the order of protection was invalid under CPL 530.13(4) since the party protected was not a victim or witness in the bad check proceeding. Affirming the conviction, the Court of Appeals held that a challenge to the validity of an order of protection is not a jurisdictional defect that survives a guilty plea. The order of protection did not render the accusatory instrument jurisdictionally defective where the elements of criminal contempt were sufficiently pleaded. Any challenge to the order should have been raised as a defense to the contempt charge, not by a claim that the information was jurisdictionally defective.

 

People v. Pichardo
(1 N.Y.3d 126, 769 N.Y.S.2d 791 - December 2, 2003)

Defendant Could Withdraw Guilty Plea Induced By Promise Of Concurrent Sentence With Prior Conviction That Was Later Vacated

After defendant was sentenced to 20 years to life for murder, he pleaded guilty to a drug charge in exchange for a lesser sentence of one to three years to be served concurrently with the murder sentence. After he completed his sentence on the drug charge, his murder conviction was reversed and he moved pursuant to CPL 440.10 to vacate his plea. The Court of Appeals ruled that because the plea was clearly induced by the trial court's promise of a lesser sentence to run concurrently with the sentence on the vacated murder charge, he was entitled to withdraw the plea. That defendant had served his lesser sentence was not determinative. When the murder conviction was vacated "defendant's ‘concurrent' time became a nullity" and his drug sentence "was based on an unfulfilled and unfulfillable promise." The Court noted that "a better practice might be for the parties . . . to spell out, on the record, the consequences that will follow upon vacatur of the conviction."

Two judges dissented.

 

People v. Huang
(1 N.Y.3d 532, 770 N.Y.S.2d 685 - November 24, 2003)

Trial Court's Order Permitting Withdrawal Of Guilty Plea Was Nonappealable

After sentence had been pronounced but before judgment had been entered, defendant moved to withdraw his guilty plea, on the ground that his attorney provided him with erroneous information regarding his immigration status. In the alternative, he moved to vacate his plea under CPL 440.10(1). The trial court treated the motion as a CPL 220.60(3) application and allowed defendant to withdraw his plea. "In the alternative," he also granted the CPL 440.10 motion. On the People's appeal, the Appellate Division rejected defendant's ineffective assistance claim on the merits. The Court of Appeals reversed, ruling that the Appellate Division had no jurisdiction to entertain the People's appeal because the trial court's order under CPL 220.60(3) was nonappealable. Moreover, no judgment had been entered and, thus, no appeal could lie from the "alternative" CPL 440.10 ruling.

 

People v. Keizer and People v. Pittman
(100 N.Y.2d 114, 760 N.Y.S.2d 720 -April 8, 2003)

Claimed Errors Were Not Jurisdictional Defects Which Survived Guilty Pleas

In two unrelated cases, the Court of Appeals ruled that there was no jurisdictional defect which survived defendants' guilty pleas. In Keizer, the Court held that defendant's guilty plea to a lesser offense that was not charged in the misdemeanor complaint nor a lesser included offense of the crimes charged was not jurisdictionally defective. The Court noted that the plea restrictions applicable to felony charges are not applicable in misdemeanor cases. In Pittman, the Court ruled that a purported hearsay defect in an accusatory instrument is non-jurisdictional and, thus, forfeited by a guilty plea.

 
Harmless Error

People v. Smith
(97 N.Y.2d 324, 740 N.Y.S.2d 279 - February 13, 2002)

Jury's Inadvertent Receipt Of Statement Of Non-Testifying Witness Did Not Require Mistrial

At defendant's trial a non-testifying witness' statement which contradicted defendant's testimony was inadvertently included on the back of a trial exhibit provided to the jury. Affirming defendant's conviction, the Court of Appeals ruled that the trial court did not err in denying defendant's request for a mistrial. The trial court's strong curative instruction and the overwhelming proof of guilt rendered any error harmless beyond a reasonable doubt.

   
Identification Procedures

People v. Wilson
(5 N.Y.3d 778 - July 6, 2005)

Suggestive Lineup Required Reversal Of The Conviction Where The Suppression Court Made No Alternative Finding On Independent Source

Having concluded that the eyewitness’s lineup identification of defendant was not rendered suggestive because the eyewitness was shown defendant’s photo immediately before the lineup, the trial court denied defendant’s motion to suppress the lineup and in-court identification without considering whether there was an independent basis for the in-court identification. On appeal, the Appellate Division ruled that the lineup was suggestive and should have been suppressed, but reversal was not required because the trial court “correctly found” an independent source. The Court of Appeals reversed and ordered a new trial to be proceeded by an independent source hearing. The Appellate Division erred in ruling that the trial court correctly found independent source since there was no such finding, nor did the Appellate Division have any basis in the record to make a de novo independent source finding. The Court cautioned that the People are “well-advised to come forward with any independent source evidence at a Wade hearing so that the suppression court may, where appropriate, rule in the alternative.”

     

People v. Brisco
(99 N.Y.2d 596, 758 N.Y.S.2d 262 - February 20, 2003)

Crime Scene Showup Was Not Unduly Suggestive


The Court of Appeals held that the record supported the lower court's finding that the showup identification of defendant was not unduly suggestive. The procedures were reasonable under the circumstances where the showup took place at the crime scene, within an hour of commission of the crime, and in the context of an ongoing investigation. The showup was not unduly suggestive because defendant was asked to hold a pair of maroon shorts which matched the victim's description of clothing worn by the perpetrator where the victim initially and independently identified defendant relying on his height, hair color and build.

One judge dissented.

     
Impeachment

People v. Brown and People v. Burgos-Santos
(98 N.Y.2d 226, 746 N.Y.S.2d 422 - May 2, 2002)

Statements In Withdrawn Notice Of Alibi Cannot Be Used For Impeachment

In Brown the Court of Appeals ruled that the trial court properly allowed the prosecutor to impeach defendant with statements his former defense counsel made at a pretrial Sandoval hearing concerning defendant's intended trial testimony. The statements were admissible for impeachment since they were inconsistent with defendant's trial testimony, defendant was the sole source for the attorney's statements, the attorney made them as defendant's agent, and the attorney-client privilege was waived as to the statements his attorney made on the record in open court. However, in Burgos-Santos the Court held that it was error to impeach defendant with his statements contained in a withdrawn notice of alibi after he provided a non-alibi defense at trial. Permitting the use of withdrawn alibi statements implicates Fifth Amendment and due process concerns. However, the error was harmless given the overwhelming evidence of guilt.

One judge dissented in People v. Brown.

 

People v. Brady
(97 N.Y.2d 233, 739 N.Y.S.2d 86 - February 7, 2002)

Sandoval Ruling Allowing Cross-examination Regarding Admissions At Guilty Plea Allocution Was Not An Abuse Of Discretion

The Court of Appeals held that the trial court's Sandoval ruling allowing the prosecutor to cross-examine defendant regarding an unrelated crime to which he pleaded guilty and was awaiting sentence did not violate his right against compulsory self-incrimination. Unlike in People v. Betts (70 N.Y2.d 289 [1987]), defendant's claims regarding self-incrimination were theoretical and unavailing where there was no pending charge since defendant had pleaded guilty to the prior crime, the trial court limited the inquiry to defendant's admissions at the plea colloquy, and defendant offered no basis to conclude that his guilty plea was assailable or that his waiver of his Fifth Amendment rights at the plea was involuntary.

 

People v. Hayes
(97 N.Y.2d 203, 738 N.Y.S.2d 663 - February 7, 2002)

Trial Court Was Not Precluded From Permitting Cross-Examination Regarding The Nature Of Defendant's Prior Similar Crimes

The Court of Appeals held that the Appellate Division erred in reversing defendant's conviction on the ground that the trial court's Sandoval ruling which allowed cross-examination of defendant regarding the existence and nature of his prior similar convictions, but not the underlying facts, was an abuse of discretion (see, People v. Sandoval, 34 N.Y.2d 371 [1974]). Given the absence of any absolute prohibition on inquiry into the nature of prior similar crimes, the trial court was not required to limit cross-examination to the existence of prior similar crimes.

   
Jurisdiction

People v. Van Buren and People v. Jeanniton
(4 N.Y.3d 640, 797 N.Y.S.2d 802 - May 10, 2005)

New York City Department of Environmental Protection (DEP) Water Supply Police Are Authorized To Enforce Traffic Laws Within The City Watershed

In two unrelated cases, the Court of Appeals upheld speeding tickets issued by New York City Department of Environmental Protection Water Supply Police (DEP Police) to defendants in Delaware County, ruling that DEP Police were authorized to enforce traffic laws within the City watershed. Here the DEP officers were on patrol in their geographical jurisdiction, which is all land within the “watershed” as indicated on official maps, and the infractions occurred within the boundaries of this watershed. The Court concluded that pursuant to CPL 1.20(34)(o), the DEP Police are authorized to “protect persons” within the watershed, and this authority includes enforcing the Vehicle and Traffic Law.

Three judges dissented.

   
Juries and Jurors

People v. Williams
(2 N.Y.3d 725, 778 N.Y.S.2d 739 - March 25, 2004)

Trial Court’s Jury Selection Procedure Did Not Violate CPL 270.15(3)

Affirming defendant’s conviction, the Court of Appeals held that the trial court did not violate CPL 270.15(3) when, after the initial round of jury selection, over the objection of both sides, it ordered one prospective juror at a time put into the box for questioning and challenges until the jury was completed. CPL 270.15(3) gives the court discretion in the number of prospective jurors placed in the jury box following completion of the first round. The Court cautioned, however, that “[w]hile the trial court’s procedure was not unlawful, it may have needlessly prolonged jury selection, and should not be followed.”

 

People v. Rodriguez
(100 N.Y.2d 30, 760 N.Y.S.2d 74 - March 27, 2003)

Juror's Concealment Of Information During Voir Dire Did Not Require Reversal

Defendant moved to set aside the verdict on the ground of juror misconduct pursuant to CPL 330.30(2) after learning that during voir dire a juror intentionally concealed his friendship with an assistant district attorney. The trial court denied the motion after a hearing, concluding that the relationship of the juror and the district attorney was remote, and the lack of disclosure did not prejudice defendant. Ruling that the trial court properly denied the motion, the Court of Appeals stated that in addressing CPL 330.30(2) motions, "[a]bsent a showing of prejudice to a substantial right, * * * proof of juror misconduct does not entitle a defendant to a new trial" and here the trial court's factual findings were supported by the record. The Court declined to "adopt a constitutional rule requiring automatic reversal whenever a defendant claims he might have preemptorily excused a juror had he possessed certain information about that juror."

 

People v. Sanchez
(99 N.Y.2d 622, 760 N.Y.S.2d 391 - March 27, 2003)

Trial Court Failed To Conduct Sufficient Inquiry To Determine If Juror Was Grossly Unqualified

During jury deliberations, a juror told a court officer that "she did not understand what was going on," or the lawyers or the judge. After taking the verdict, the court interviewed the juror to determine whether she was "grossly unqualified" under CPL 270.35. The Court of Appeals reversed the defendant's conviction, ruling that the trial court failed to conduct the "probing and tactful inquiry" required when it appears that a juror may be grossly unqualified. The inquiry was "misdirected and incomplete" where the court questioned the juror regarding her general qualifications to serve under Judiciary Law §510, but failed to make any inquiry to elicit what the juror meant by her statement. The Court cautioned, however, that it would have been "inappropriate" to question her regarding her "thought processes, the deliberations or other matters that lie within the confines of the jury room."

 

People v. Smocum
(99 N.Y.2d 418, 757 N.Y.S.2d 239 - February 25, 2003)

Batson Claims Were Not Preserved

Affirming defendant's conviction, the Court of Appeals held that defendant failed to preserve his Batson claim (see, Batson v. Kentucky, 476 U.S. 79 [1986]). The Court clarified that the three-step Batson inquiry must be followed in sequence; (1) the movant must establish a prima facie case of discrimination, (2) the non-movant must provide a race-neutral explanation for each challenged juror and (3) the trial court must make a determination on the issue of discriminatory intent. Here the trial court improperly "rushed and compressed the Batson inquiry" and did not follow it in proper sequence. However, because defendant did not object to the race-neutral reasons offered by the prosecutor, he failed to preserve his Batson claim.

 

People v. James and People v. Jones
(99 N.Y.2d 264, 753 N.Y.S.2d 444 - December 17, 2002)

Specific Objection Is Required To Preserve Batson Claim

The Court of Appeals ruled in two unrelated cases that defendants' Batson claims (see, Batson v. Kentucky, 476 U.S. 79 [1985]) were unpreserved. The Court outlined the procedure to preserve a Batson issue. First a party must establish a prima facie case of discrimination in the exercise of peremptory challenges. The non-movant must then provide a race neutral reason for each person challenged in step one. Once "the court accepts the race neutral reasons given, the moving party must make a specific objection to the exclusion of any juror still claimed to have been the object of the discrimination." Since defendants failed to renew their objections to the strikes of particular jurors and challenge the reasons given as pretextual, their Batson claims were unpreserved.

 

People v. Nicholas
(98 N.Y.2d 749, 751 N.Y.S.2d 820 - October 17, 2002)

Prospective Jurors Who Indicated Bias Should Have Been Excused For Cause

During voir dire after several prospective jurors raised their hands and nodded affirmatively when asked by defense counsel if they would tend to credit police testimony, the trial court asked the panel collectively if they could be impartial and received no response. The Court of Appeals ruled that since the trial court failed to obtain unequivocal assurances of impartiality, denial of defendant's challenges for cause on the ground of bias, where he eventually exhausted his peremptory challenges, was reversible error (see, CPL 270.20[2]).

 

People v. Chambers
(97 N.Y.2d 417, 740 N.Y.S.2d 291 - March 19, 2002)

Prospective Juror's Response That He Thought He Could Be Impartial Was Not Equivocal When Viewed In Context

The Court of Appeals held that the response "I think so" when a prospective juror was asked if he could be impartial, did not require his dismissal for cause since the juror's statements when viewed in context and taken as a whole were not equivocal. The Court reminded trial courts, however, that "when a prospective juror qualifies a ‘yes' or ‘no' response regarding the ability to be fair with words such as ‘I think' or ‘I'll try,' an additional question or two at voir dire would easily dispel any doubt as to equivocation, assure an impartial jury, and avoid the delay, and risk, of appeals."

   
Jury Instructions

People v. Williams
(5 N.Y.3d 732, 800 N.Y.S.2d 360 - June 9, 2005)

Jury Instruction Not To Speculate On The “Ghost” Officer’s Failure To Testify Was Reversible Error

At defendant’s trial on drug charges, the defense argued in summation that the People’s case was “skeletal” where the “ghost” officer who allegedly observed the sale was not called as a witness and there was no evidence corroborating the testimony of the arresting officer. After summations, the judge instructed the jury that they were not entitled to speculate on the whereabouts of people allegedly at the crime scene. The Court of Appeals held that the instruction was reversible error. “A defendant not necessarily entitled to a missing witness charge may nonetheless try to persuade the jury to draw inferences from the People’s failure to call an available witness with material, non cumulative information about the case.”

One judge concurred in result.

   

People v. Aponte
(2 N.Y.3d 304, 778 N.Y.S.2d 447 - May 11, 2004)

Charge To Deadlocked Jury Was Unduly Coercive

The Court of Appeals held that the trial court’s supplemental instruction to the deadlocked jury was unbalanced and coercive so as to deprive defendant of a fair trial where it was “[l]imited in scope to the importance of returning a verdict and suggesting that the jurors were failing in their duty to reach a decision.” The charge should have included a clarifying statement to the effect that the jurors “should not surrender their honest convictions ‘for the mere purpose of returning a verdict’ (1 CJI [NY] 42.60, at 1019).” In addition, the trial court’s admonition that it was “nowhere near” considering that the jury would be unable to reach a decision increased the pressure to reach a verdict by presenting the prospect of prolonged deliberations.

 

People v. Collins
(99 N.Y.2d 14, 750 N.Y.S.2d 814 - October 15, 2002)

Submission Of Jury Instruction On Verdict Sheet Did Not Violate Defendant's Presence Rights

During jury deliberations, the trial court granted defense counsel's request, made in defendant's presence, to instruct the jury through a verdict sheet to consider the indictment counts in the alternative. The Court of Appeals held that submission of the verdict sheet after defendant had voluntarily absented himself from the courtroom did not violate defendant's right to be present under CPL 310.30 since the written submission was in accordance with CPL 310.20(2). Defendant was not entitled to be present when the instruction was drafted since it entailed only a ministerial act involving legal argument.

 
Juvenile Delinquency Proceedings

Matter of Michael M.
(3 N.Y.3d 441, 788 N.Y.S.2d 299- November 23, 2004)

Removals Which Are Not Supported By Nonhearsay Factual Allegations Are Jurisdictionally Defective

Michael M. was originally charged in criminal court with a felony complaint containing only hearsay, the case was removed to Family Court, and he was adjudicated a juvenile delinquent. The Court of Appeals dismissed the juvenile delinquency petition ruling that pursuant to Family Court Act (FCA) §311.2(3) removals must be supported by nonhearsay factual allegations to establish every element of the crimes charged and the juvenile’s commission of these crimes. The Court further ruled that the failure to satisfy the nonhearsay requirements of FCA §311.2(3) is a non-waivable jurisdictional defect which can be raised for the first time on appeal.

Two judges dissented.

 
Kendra’s Law

Matter of K.L. v. Martin
(1 N.Y.3d 363, 774 N.Y.S.2d 472 - February 17, 2004)

Kendra’s Law Is Held Constitutional

The Court of Appeals upheld the constitutionality of Mental Hygiene Law (MHL) §9.60, known as Kendra’s Law, pursuant to which psychiatric patients unlikely to survive safely in the community without supervision may avoid hospitalization by complying with court-ordered outpatient mental health treatment. The Court rejected defendant’s contention that the statute violates due process and equal protection because it does not require a finding of incapacity before a psychiatric patient may be required to comply with assisted outpatient treatment. “Since MHL §9.60 does not authorize forced medical treatment, a showing of incapacity is not required.” The Court concluded that “the assisted outpatient’s right to refuse treatment is outweighed by the State’s compelling interest in both its police and parens patriae powers.”

 
Missing Witness Charge

People v. Savinon
(100 N.Y.2d 192, 761 N.Y.S.2d 144 - June 5, 2003)

"Missing Witness" Charge Was Proper

Affirming defendant's conviction of rape and related charges, the Court of Appeals held that the trial court properly granted the People's request for a "missing witness" charge after defendant failed to call his friend to testify at trial. The witness's testimony would have been material and non-cumulative as he was the only witness to the alleged crime. Defense counsel's assertion that the witness would not appear due to his fear of deportation was insufficient to establish unavailability where defense counsel failed to subpoena the witness, having just met with him during trial. The element of control or the "favorability factor" was satisfied where defendant and the witness had been friends and business associates.

 
Motions

People v. Combest
(4 N.Y.3d 859, 798 N.Y.S.2d 350 - May 3, 2005)

Nonparty Cannot Intervene In A Criminal Case

The Court of Appeals denied the motion by nonparty Hybrid Films, Inc. to intervene in the appeal of this criminal action. The Court noted that the Criminal Procedure Law provides no mechanism for a nonparty to intervene or be joined in a criminal case and that a nonparty wishing to supplement legal arguments made to a court may seek leave to appear as amicus curiae.



People v. Davidson
(98 N.Y.2d 738, 751 N.Y.S.2d 161 - October 15, 2002)

Reversal Based On Unpreserved Issue Required Dismissal Of Appeal

The Court of Appeals held that defendant's challenge to the constitutionality of the loitering statute (Penal Law §240.35[2]) was not preserved since it was made for the first time on his motion to set aside the verdict pursuant to CPL 330.30(1). Such issue should have been raised in a motion to dismiss the indictment within the time period outlined in CPL 255.20. Since the Appellate Division's reversal of the trial court's grant of the motion was based on this unpreserved issue, there was no question of law reviewable by the Court of Appeals (see, CPL 450.90[2][a]). Accordingly, the Court dismissed the appeal.

 
Orders of Protection
 
Preservation

People v. Kelly
(5 N.Y.3d. 116, 799 N.Y.S.2d 763 - June 29, 2005)

Court Officer’s Unauthorized Demonstration During Jury Deliberations Was Not A “Mode Of Proceedings Error” Immune From Preservation Requirement

During jury deliberations at defendant’s murder trial, a court officer, at the jurors’ request, conducted an unauthorized demonstration on the alleged murder weapon. The officer informed the court what had occurred, and, upon agreement of the parties, the court issued a curative instruction. Affirming the conviction, the Court of Appeals held that this was not a “mode of proceedings error” immune from the preservation requirement where the demonstration by the court officer was unauthorized; the court continued to exercise control of the trial after learning of the error; and defendant wanted to go to verdict and indicated that he was satisfied with the curative instruction.



People v. Prado
(4 N.Y.3d 725, 790 N.Y.S.2d 418- December 16, 2004)

Issue Of Sufficiency Of Corroboration Of Confession Was Preserved

The Court of Appeals affirmed defendant’s conviction of sexual abuse following a bench trial, ruling that defendant’s claim of alleged judicial bias was unpreserved for appellate review. The Court also rejected defendant’s claim that his counsel was ineffective because he failed to preserve an objection regarding lack of corroboration of his confession (see, CPL 60.50). The issue of corroboration was expressly decided by the trial court where defense counsel made a general motion to dismiss at the close of the evidence which the court denied, and the court made specific findings as to corroboration.

One judge dissented.

 
Privilege

People v. Combest
(4 N.Y. 3d 341, 795 N.Y.S.2d 481 - February 22, 2005)

Film Crew’s Videotapes Of Defendant’s Interrogation Were Not Privileged Under Civil Rights Law §79-h

Indicted for murder, defendant subpoenaed videotapes of his custodial interrogation from Hybrid Films, Inc. which Hybrid made while filming a documentary about police. The trial court granted Hybrid’s motion to quash the subpoena pursuant to Civil Rights Law (CRL) §79-h, the Shield Law, which affords journalists a qualified privilege in nonconfidential news. The Court of Appeals ruled that the trial court’s grant of the motion to quash was reversible error. Defendant met the three-pronged test for access to the tapes under CRL §79-h(c) where he sought to use the videotapes in support of two alternative defenses - - that he acted in self-defense and that the statements were involuntary - - and the tapes were the only depiction of his initial interrogation. The Court cautioned that police cannot avoid their obligation to provide defendants with copies of their own taped statements “simply by letting a news organization
* * * operate the cameras.”

One judge dissented in part.

 
Records On Appeal

People v. Marquez
(4 N.Y.3d 734, 790 N.Y.S2d 428 - December 21, 2004)

Remittal Was Required To Determine If Defendant Was Entitled To A Reconstruction Hearing

People v. Parris ( _ N.Y.3d_, decided December 21, 2004), held that where a significant portion of minutes of proceedings have been lost, a defendant appealing a conviction after trial is entitled to a reconstruction hearing if he has acted with reasonable diligence to mitigate the harm resulting from the mishap. In this case the record did not permit the Court of Appeals to rule on whether defendant acted with reasonable diligence. Accordingly, the Court remitted the matter to the lower court for a determination on the issue. If he did, a reconstruction hearing should be ordered, if not, his conviction should be affirmed.

 

People v. Parris and People v. Hofler
(4 N.Y.3d 41, 790 N.Y.S.2d 421 - December 21, 2004)

Lost Minutes Did Not Warrant Reversal Of Conviction Or Reconstruction Hearing

The Court of Appeals ruled that defendants were not entitled to reversal of their convictions because minutes were lost since they failed to show prejudice, nor were they entitled to a reconstruction hearing. The Court held that where a significant portion of the minutes has been lost, a defendant appealing a conviction after trial is generally entitled to a reconstruction hearing if he “has acted with reasonable diligence to mitigate the harm done by the mishap; but * * * a defendant who has pleaded guilty is entitled to a reconstruction hearing only where he can identify a ground for appeal that is based on something that occurred during the untranscribed proceeding.” Convicted after a trial, defendant Parris failed to promptly move for a reconstruction hearing or pursue other means to reconstruct the proceedings. Defendant Hofler who pleaded guilty did not identify any appealable issues.

     
Restitution

People v. Horne
(97 N.Y.2d 404, 740 N.Y.S.2d 675 - March 14, 2002)

Restitution Order For Filing A False Instrument Conviction Was Authorized

Defendant was convicted of filing a false instrument arising from her failure to include accurate income information on social services benefit recertification forms she submitted to the Department of Social Services (DSS). The Court of Appeals upheld the sentencing court's restitution order directing defendant to repay the benefit overpayments she received as a result of the filing of the false documents, noting that restitution is a viable sentence for any crime where a victim has suffered "actual out of pocket loss" or there are "discernable fruits of the offense" (see, Penal Law §60.27[1]). Defendant's acquittal of related "theft offenses" does not lead to the conclusion that the jury found that DSS did not suffer out of pocket losses.

     
Right To Appeal

People v. Dunn
(4 N.Y.3d 495, 796 N.Y.S.2d 331- April 28, 2005)

Trial Court’s Sua Sponte Order Setting Aside Verdict Pursuant To Judiciary Law §2-b(3) Was Nonappealable Under CPL 450.20
Convicted of murder, defendant moved to set aside the verdict pursuant to CPL 330.30. The trial court, relying on Judiciary Law §2-b(3), vacated the conviction on the ground that defendant was denied meaningful representation. The Court of Appeals held that the trial court’s order was facially non-appealable by the People since CPL 450.20 does not authorize appeal of an order premised on Judiciary Law §2-b(3). The proper vehicle to challenge the trial court’s order was an article 78 proceeding, not a direct appeal.



People v. Nieves
(2 N.Y.3d 310, 778 N.Y.S.2d 751 - May 6, 2004)

Orders Of Protection Issued Under CPL 530.13(4) At Sentencing Are Appealable

At defendant’s sentencing on a weapons charge, the court issued two permanent orders of protection under CPL 530.13(4) for the two victims defendant shot during an altercation. Defendant claimed for the first time on appeal that the orders exceeded both the duration and the scope authorized in CPL 530.13(4). The Court of Appeals held that permanent orders of protection entered upon conviction under CPL 530.13(4) are appealable on direct appeal pursuant to CPL 450.10 if the issue is preserved by timely objection at the trial level. However, defendant failed to preserve the issue by objecting to the orders at sentencing. The Court emphasized that although such orders are appealable, “the better practice” is for a defendant to request relief from the issuing court, “resorting to the appellate courts only if necessary.”



People v. West
(100 N.Y.2d 23, 759 N.Y.S.2d 437 - May 1, 2003)

Failure To Perfect Appeal For More Than 14 Years Waived Right To Appeal

Affirming the Appellate Division's dismissal of defendant's appeal of his rape and sodomy conviction, the Court of Appeals held that defendant abandoned his right to appeal where, although informed of his right to appeal and how to apply for poor person relief, he failed to perfect his appeal for more than 14 years. The Court noted that "defendant repeatedly attempted to bypass the State appellate process by filing petitions seeking Federal habeas corpus relief," despite rulings by the Federal court directing him to pursue his appeal in State court. The Court further rejected defendant's claim that he was entitled to the appointment of counsel to assist in the preparation of his poor person application.



People v. Hernandez
(98 NY2d 8, 743 N.Y.S.2d 778 - May 7, 2002)

People Have No Right Of Appeal From CPL 140.45 Dismissals

The Court of Appeals held that the People are not authorized to appeal from a dismissal for insufficiency pursuant to CPL 140.45 of a local criminal court accusatory instrument filed upon a warrantless arrest. CPL 450.20(1) does not authorize an appeal from such dismissals.

   
Right To Be Present

People v. Fabricio
(3 N.Y.3d 402, 787 N.Y.S.2d 219 - December 2, 2004)

Defendant’s Absence From A Side-Bar Regarding The Use of A Prior Inconsistent Statement Did Not Violate His Presence Rights

At his murder trial, after defendant testified that an accomplice paid his plane fare to New York, a side-bar conference was held out of his presence where the prosecutor requested a ruling on whether he could question defendant regarding his prior inconsistent statements that he obtained the travel money through an armed robbery. The Court of Appeals held that defendant’s presence rights (see, CPL 260.20; US Const 6th, 14th Amends; NY Const, art 1, §6) were not violated by his absence from the side-bar since it focused on a pure question of law - - whether his testimony opened the door to the use of his prior inconsistent statement and whether the People had a good faith basis to inquire about it. Defendant had no right to be present since the discussion did not implicate his factual knowledge or otherwise present the potential for his meaningful participation and it was not a Sandoval or Ventimiglia hearing.

 

People v. Velasquez and People v. Foster
(1 N.Y.3d 44, 769 N.Y.S.2d 156 - October 23, 2003)

Defendants' Right To Be Present At Sidebar Conferences Was Not Violated

In two unrelated cases the Court of Appeals held that defendants right to be present at sidebars with prospective jurors (see, People v. Antommarchi, 80 N.Y.2d 247 [1992]) was not violated. In Foster, the trial court invited counsel into the robing room, where several jurors were questioned about their ability to be fair and impartial; however, defendant's presence was not noted on the record. The Court ruled that without more, failure to record a defendant's presence is insufficient to rebut the presumption of regularity that attaches to judicial proceedings.

In Velasquez, at the close of an off-the-record bench conference to discuss "logistics," defense counsel announced on the record "waived" to which the court responded "Antommarchi waived." Subsequently, during jury selection a prospective juror was questioned about bias at sidebar outside defendant's presence. The Court of Appeals held the waiver was effective, noting that in accepting an Antommarchi waiver offered by defense counsel on a defendant's behalf, a trial court need not engage the defendant in an on-the-record colloquy to ensure a voluntary waiver. The Court observed that "greater attentiveness to indicating defendant's presence or absence in the trial record would both protect defendant's Antommarchi rights and avoid protracted disputes."

One judge dissented.

   
Right To Confrontation

People v. Douglas
(4 N.Y. 3d 777, 793 N.Y.S.2d 825 - February 17, 2005)

Admission Of Non-Testifying Co-Defendant’s Plea Allocution Was Harmless Error

At defendant’s robbery trial, a redacted version of the guilty plea allocution of a non-testifying co-defendant was admitted into evidence. The Court of Appeals held that insofar as the plea allocution was a testimonial statement, not subject to cross-examination, its admission violated defendant’s Sixth Amendment right to confrontation (see, People v. Hardy, 4 N.Y.3d 192 [February 17, 2005]). However, the error was harmless as there was no reasonable possibility that the error affected the jury’s verdict given the victim’s identification testimony and the corroborating evidence.

 

People v. Hardy
(4 N.Y. 3d 192, 791 N.Y.S.2d 513 - February 17, 2005)

Admission Of Non-Testifying Co-Defendant’s Guilty Plea Allocution Violated Defendant’s Sixth Amendment Right To Confrontation

At defendant’s trial a redacted version of a nontestifying co-defendant’s plea allocution which corroborated other prosecution testimony was admitted into evidence. The Court of Appeals held that admission of the hearsay statement was error under Crawford v. Washington (541 U.S. 36 [2004]) which held that the admission of a testimonial statement, such as a plea allocution, without the opportunity for cross-examination of the declarant violates a defendant’s Sixth Amendment right to confrontation. The Court noted that Crawford overrules People v. Thomas, (68 N.Y.2d 194 [1986]) which held such hearsay statements admissible as a declaration against penal interest. The error was not harmless given the People’s and the jury’s heavy reliance on the allocution. The Court further ruled that Crawford applied to defendant’s case since defendant’s appeal was not final when Crawford was decided.

 

People v. Waver
(3 N.Y.3d 748, 788 N.Y.S.2d 630 - November 23, 2004)

Stanard Inquiry Must Be Undertaken Before Permitting Anonymous Testimony

The Court of Appeals reversed defendant’s conviction on drug charges arising from a buy and bust operation, ruling that his Sixth Amendment right to confrontation was prejudiced because the trial court permitted two officers who participated in the undercover operation to testify anonymously without undertaking the sequential three-step inquiry mandated by People v. Stanard (42 N.Y.2d 74 [1977]). The People did not satisfy their initial burden of showing the need for anonymity. When the Stanard requirements are not met, “a finding of harmless error is not warranted where, as here, the testimony of the anonymous witness is central to the People’s case and defendant’s ability to cross-examine the anonymous witness is purely speculative.”

   
Right To Counsel

People v. Carranza
(3 N.Y.3d 729, 786 N.Y.S.2d 381 - October 21, 2004)

A Lawyer Cannot Prevent Police From Questioning A Suspect By Communicating Only With Police Agencies Not Involved In The Investigation

After hearing that defendant was wanted in this case, defendant’s lawyer on an unrelated case faxed letters to the New York State Police and the District Attorney’s Office stating that “defendant exercises his right to remain silent and to counsel.” The lawyer did not contact the local police departments that arrested and questioned defendant after he waived his Miranda rights. The Court of Appeals held that the Arthur rule (22 N.Y.2d 325 [1968]) which prohibits questioning in the absence of counsel “once the police know or have been apprised of the fact that the defendant is represented by counsel or that an attorney has communicated with the police for the purpose of representing the defendant” did not apply on these facts. “A lawyer may not prevent the police from questioning a suspect by communicating only with law enforcement agencies not involved in the investigation.” The questioning was permissible since the officers had not been informed and, under the facts, were not chargeable with knowledge that defendant had a lawyer.



People v. Linares
(2 N.Y.3d 507, 780 N.Y.S.2d 529 - June 3, 2004)

Trial Court Properly Denied Defendant’s Request For Substitute Counsel

The Court of Appeals held that the trial court did not abuse its discretion in denying defendant’s request for substitute counsel made on the eve of trial. In determining whether good cause exists for substitution of counsel, the “trial court must consider the timing of the defendant’s request, its effect on the progress of the case, and whether present counsel will likely provide the defendant with meaningful assistance.” Here the trial court made a “diligent and thorough” inquiry and “reasonably concluded that defendant’s vague and generic objections had no merit or substance.” The fact that defendant threatened counsel with violence in voicing his objections did not require substitute counsel.



People v. Mitchell
(2 N.Y.3d 272, 778 N.Y.S.2d 427 - May 4, 2004)

Parent Can Invoke Right To Counsel On Juvenile’s Behalf But Request Must Be Unequivocal

After arresting defendant, a 15-year-old, at school for robbery, the investigating officer called defendant’s mother and asked if she could attend his lineup. She said she could not, told him defendant had a lawyer and asked if he wanted his number. The police held the lineup without contacting defendant’s lawyer who was representing him on an unrelated charge and defendant was identified. The Court of Appeals held that while generally a third party cannot invoke the right to counsel on behalf of an adult defendant, a parent can invoke the right to counsel on a juvenile’s behalf, however, the request must be unequivocal. “A suggestion that counsel might be desired, a notification that counsel exists, or a query as to whether counsel ought to be obtained” is insufficient. Here the request was equivocal, and, thus, there was no violation of defendant’s right to counsel at the pre-accusatory lineup.



People v. Providence
(2 N.Y.3d 579, 780 N.Y.S.2d 552 - June 29, 2004)

Defendant Effectively Waived His Right To Counsel At Trial

The Court of Appeals held that the record established that following defendant’s request to proceed pro se, the trial court undertook the requisite “searching inquiry” to insure that there was a “knowing, voluntary and intelligent waiver of the right to counsel.” The Court ruled that a waiver of the right to counsel is not ineffective simply because a trial judge does not specifically question the defendant regarding each of the items recited in People v. Arroyo (98 N.Y.2d 101, 104 [2002]); “age, education, occupation, previous exposure to legal procedures and other factors bearing on a competent, intelligent, voluntary waiver.” The Court cautioned, however, that “it is better practice to ask such questions” and the record “should affirmatively disclose that a trial court has delved into” these matters.



People v. Grice
(100 N.Y.2d 318, 763 N.Y.S.2d 227 - June 26, 2003)

Third Party Cannot Invoke Defendant's Right To Counsel

Defendant was arrested after being implicated in a shooting and questioned at the police station where he gave inculpatory written statements after waiving his Miranda rights. During the questioning, defendant's father arrived and informed a detective that defendant's attorney was en route to the station. Defendant's lawyer contacted the police after the written statements were completed and questioning ceased. Reaffirming its prior rulings, the Court of Appeals held that "an attorney 'enters' a criminal matter and triggers the indelible right to counsel when the attorney or professional associate of the attorney notifies the police that the suspect is represented by counsel." Here the information provided by defendant's father did not provide sufficient notification of entry of counsel and, therefore, defendant's indelible right to counsel did not attach. Consequently, the police did not violate defendant's State constitutional right to counsel by continuing the interrogation and the statements were admissible.



People v. Ramos
(99 N.Y.2d 27, 750 N.Y.S.2d 821 - October 22, 2002)

Undue Delay In Arraignment Does Not Give Rise To A State Constitutional Right To Counsel

The Court of Appeals rejected defendant's claim, raised for the first time on appeal, that his State constitutional right to counsel arose when police intentionally delayed his arraignment for the purpose of obtaining a confession, and that the issue did not have to be preserved for review. When defendant confessed, judicial proceedings had not begun, nor had he requested or retained counsel, the two situations in which the State constitutional right to counsel indelibly attaches. An intentional delay in arraignment does not trigger the State constitutional right to counsel. Rather, such a delay has a bearing on the voluntariness of a confession, or may result in a violation of the prompt arraignment statute (CPL 140.20), issues which have to be preserved for appellate review and which were not preserved by defendant (see, CPL 470.05[2]).

     
Right To Self Representation

People v. Arroyo
(98 N.Y.2d 101, 745 N.Y.S.2d 796 - June 11, 2002)

Court Failed To Obtain Effective Waiver Of Counsel

After defendant indicated that he wanted to proceed pro se at his trial, the trial court inquired whether he "really want[ed]" to represent himself and issued some cursory warnings before allowing him to proceed pro se with stand by counsel. The Court of Appeals reversed the conviction and ordered a new trial ruling that the trial court failed to secure an effective waiver of counsel since it failed to conduct the necessary "searching inquiry" to adequately evaluate defendant's competency to waive counsel and warn him of the risks in proceeding pro se.



People v. Lineberger
(98 N.Y.2d 662, 746 N.Y.S.2d 450 - June 11, 2002)

Court Was Not Required To Obtain A Waiver Of Counsel Under The Circumstances

After an unfavorable jury verdict, defendant refused the continued services of his third assigned counsel at sentencing and obstinately refused to enter the courtroom despite numerous requests and options proffered by the court. The Court of Appeals held that under these circumstances defendant could not rely upon the trial court's inability to conduct a searching inquiry to obtain an effective waiver of counsel as a basis to vacate his sentence (see, People v. Arroyo, 98 N.Y.2d 101, 745 N.Y.S.2d 796 [2002]).

     
Search and Seizure

People v. Lopez
(5 N.Y.3d 753, 801 N.Y.S.2d 245 - June 30, 2005)

The Mapp/Dunaway Portion Of Defendant’s Suppression Motion Was Properly Denied Without A Hearing

The Court of Appeals ruled that the suppression court did not commit reversible error in denying the Map/Dunaway portion of defendant’s suppression motion without a hearing. Defendant’s post-arrest statement said that “one of the officers was with” one of the robbery victims “so I knew they were looking for us, so I ran” and that, before his arrest, he threw a gun away. The statement on its face showed probable cause for defendant’s arrest, which defendant failed to controvert in his motion papers.



People v. Williams
(4 N.Y.3d 535, 797 N.Y.S.2d 35 - May 10, 2005)

Peace Officers Acting Under Color Of Law Cannot Effect A Citizen’s Arrest

While patrolling a housing project, two Buffalo Municipal Housing Authority peace officers observed defendant driving an automobile on a public street adjacent to the project. They stopped him for a seatbelt violation, and during the encounter, defendant threw a bag of cocaine on the ground. He was subsequently charged in an indictment with drug possession and Vehicle and Traffic Law violations. The Court of Appeals ruled that the initial stop by the officers was invalid because they were acting outside their geographical jurisdiction when they stopped him. Nor was the stop a valid citizen’s arrest under the Criminal Procedure Law because the officers were not “acting other than as a police officer or a peace officer” and they were acting under color of law (CPL 140.35 and 140.40). Accordingly, the indictment was properly dismissed.



People v. Jones
(2 N.Y.3d 235, 778 N.Y.S.2d 133 - April 6, 2004)

State Constitution Does Not Require Suppression Of Uncounseled Lineup Identifications Made After A Payton Violation If The Arrest Is Supported By Probable Cause

Having probable cause to believe that defendant committed two robberies, police arrested him in his home without a warrant, consent to enter or exigent circumstances in violation of Payton v. New York (445 US 573 [1980]), placed him in a lineup without counsel, and the robbery victims identified him. Evidence of the lineups was presented at trial. Affirming defendant’s robbery conviction, the Court of Appeals held that the New York Constitution does not require suppression of an uncounseled lineup identification held after a Payton violation provided there is probable cause for the arrest. The Court concluded that the rationale of People v. Harris (77 N.Y.2d 434 [1981]) which held that statements elicited after a Payton violation are inadmissible, does not apply to uncounseled lineup identifications.

Two judges dissented.



People v. Reynoso
(2 N.Y.3d 820, 781 N.Y.S.2d 284 - June 10, 2004)

Defendant’s Warrantless Arrest Did Not Violate Payton

The Court of Appeals ruled that defendant’s warrantless arrest did not violate Payton v. New York (445 U.S. 573 [1980]) since the arrest occurred either after defendant exited his home voluntarily or while he stood in the doorway. Also, there was no violation of defendant’s constitutional right to confront witnesses when the trial court allowed the People to elicit a statement made by a non-testifying codefendant to a detective. The statement was not admitted to establish the truth of the matter asserted, but, rather, to show the detective’s state of mind. The Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted” (see, Crawford v. Washington, 541 U.S. 36 [2004]) .



People v. Wheeler
(2 N.Y.3d 370, 779 N.Y.S.2d 164 - May 13, 2004)

Search Of Defendant During Execution Of Arrest Warrants For Probationer Was Reasonable

Upon entering an apartment to execute arrest warrants for a probation violator, the police found defendant, the probation violator and a companion. After finding that the probationer and the companion were armed, the officers searched defendant who was “mouthing off” and they discovered a handgun. Affirming defendant’s weapons possession conviction, the Court of Appeals ruled that the search of defendant was reasonable under the circumstances where the officers had reasonable cause to believe that defendant could also be armed and dangerous and the intrusion was minimal.



People v. Johnson
(1 N.Y.3d 252, 771 N.Y.S.2d 64 - December 22, 2003)

People Failed to Establish Search Of Glove Compartment Was A Valid Inventory Search

Police stopped defendant for reckless driving. As they approached, they observed him open and close the glove compartment. After arresting him for driving with a suspended license, an officer found a loaded gun in the glove compartment, left it there, and the vehicle was impounded. Dismissing the weapons possession indictment, the Court of Appeals held that the search of the glove compartment was not a valid inventory search. The People failed to establish the existence of any departmental policy regarding inventory searches, and "if any policy did exist here that was properly designed to meet the goals of accounting for the contents of the vehicle and to protect others from harm, . . . it can hardly be said that the officer in this case followed the policy by conducting a search that included only the glove compartment, and upon finding a gun, leaving it in place." The Court further noted that the officer did not complete an inventory list, "the hallmark of an inventory search."



People v. Alvarez
(100 N.Y.2d 549, 763 N.Y.S.2d 788 - June 10, 2003)

Suppression Hearing Evidence Established Reasonable Suspicion


The Court of Appeals denied defendant's motion to suppress physical evidence, ruling that the hearing court's undisturbed findings that the police officer observed papers in defendant's hand which the officer knew from experience were used to package cocaine provided reasonable basis to stop defendant. Defendant's attempt to hide the papers in his pants upon the approach of the officer elevated the level of suspicion to probable cause.



People v. Shabazz
(99 N.Y.2d 634, 760 N.Y.S.2d 717 - April 1, 2003)

Radio Transmissions Justified Motor Vehicle Stop

After receiving radio transmissions advising them that shots were fired and defendant was involved, and describing his vehicle and license plate number, police stopped defendant's van which matched the radioed description. Upon exiting the vehicle defendant asked, "Who did I kill?" and police found a gun in the back seat. Affirming the denial of defendant's motion to suppress the gun and statement, the Court of Appeals held that the police officer's suppression hearing testimony regarding the substance of the radio transmissions was sufficient to support the conclusion that the stop was lawful. Since defendant did not challenge the reliability of the radioed information at the suppression hearing, the burden never shifted to the People to come forward with proof establishing the reliability of that information and defendant's argument that the proof was deficient in this respect was unpreserved for review.



People v. Jackson
(99 N.Y.2d 125, 752 N.Y.S.2d 217 - December 12, 2002)

Roadblock For The Purpose Of General Crime Control Violated Fourth Amendment


The Court of Appeals held that a roadblock set up by police in New York City for the purpose of reducing crime, particularly taxi cab robberies and carjackings, interdicting drugs and guns and substantiating safety inspections was constitutionally invalid under City of Indianapolis v. Edmond (531 U.S. 32 [2000]) which proscribed the use of suspicionless roadblock stops for the purpose of general crime control. In contrast to the narrowly tailored taxi-safety program upheld in People v. Abad (98 N.Y.2d 12 [2002]), here the roadblock objectives related only to general crime control and the officers failed to "unequivocally point to a primary programmatic objective that would qualify under City of Indianapolis, such as addressing some ‘type of immediate, vehicle-bound threat to life and limb.'" Accordingly, the Court affirmed the suppression of drugs seized from defendant's car at the roadblock.



People v. Mundo
(99 N.Y.2d 55, 750 N.Y.S.2d 837 - November 19, 2002)

Defendant's Furtive Movements Justified Limited Search Of Vehicle

The Court of Appeals held that defendant's furtive moments prior to a lawful stop of his vehicle for a traffic infraction, coupled with the evasive actions of the automobile (the car stopped and started three times and nearly struck a pedestrian before stopping while defendant appeared to hide something in the back seat) justified a search of the back seat of the vehicle for weapons after removal of the occupants. The search led to the discovery of the odor of a chemical used to "cut" narcotics emanating from an access panel to the trunk which contained cocaine. Affirming the denial of suppression of the drugs found in the trunk, the Court held that the limited search of the interior of the vehicle where the furtive movements had been seen was justified because the officers could reasonably conclude under the circumstances that a weapon located within the vehicle presented a specific danger to their safety (see, People v. Carvey, 89 N.Y.2d 707 [1997]).

Two judges dissented.



People v. Pines
(99 N.Y.2d 525, 752 N.Y.S.2d 266 - November 19, 2002)

Reasonable Suspicion Justified Pursuit

The Court of Appeals held that there was reasonable suspicion justifying the police pursuit of defendant based upon the officers' observation of defendant in a drug prone area looking around nervously, he appeared to adjust a gun under his jacket, and ran when the officers asked to talk to him. The Court noted that reasonable suspicion is the standard for a police detention short of an actual arrest, and a "defendant's flight may be considered in conjunction with other attendant circumstances" in determining whether reasonable suspicion exists (see, People v. Martinez, 80 N.Y.2d 444 [1992]). Accordingly, the Court affirmed the denial of defendant's motion to suppress the gun which he tossed during the pursuit.



People v. Roque
(99 N.Y.2d 50, 751 N.Y.S.2d 165 - November 19, 2002)

Reasonable Suspicion Justified Detention Of Defendant During "Vertical Sweep" Of An Apartment Building

The Court of Appeals held that there was reasonable suspicion to justify a brief detention of defendant during a "vertical sweep" of an apartment building where the landlord had filed a "trespass affidavit" requesting that police patrol the building for trespassers. After hearing defendant call to an individual in the hallway who police knew from prior drug arrests, police encountered defendant walking away from an open apartment door. When he refused to respond to an inquiry, an officer detained him while another officer found cocaine in the open apartment. Given that the purpose of the police presence was to apprehend trespassers and Penal Law §140.05 requires only that one enter or remain illegally upon the premises, defendant's actions provided reasonable suspicion that defendant was at least trespassing in the building.



People v. Molnar
(98 N.Y.2d 328, 746 N.Y.S.2d 673 - July 2, 2002)

Rotting Odor Emanating From Apartment Justified Warrantless Entry Based Upon Emergency Exception

After receiving a complaint about a rotting odor emanating from defendant's apartment, police entered and found the victim's decomposing body. Affirming the denial of defendant's motion to suppress the evidence flowing from the search, the Court of Appeals concluded that the facts met the prerequisites of the emergency exception set forth in People v. Mitchell (39 N.Y.2d 173 [1976]) and no warrant was required. The fact that the police delayed entering for about an hour while they explored alternatives did not make the situation a non-emergency. The Court noted that "the police were not functioning in a criminal arena, but acting as public servants in the name of protecting public health and safety."



People v. William II and People v. Rodriguez
(98 N.Y.2d 93, 745 N.Y.S.2d 792 - June 6, 2002)

Anonymous Tip Describing Individual With A Gun Without More Did Not Establish Reasonable Suspicion

The Court of Appeals held that an anonymous tip describing an individual carrying a gun, without more did not establish the reasonable suspicion required for the stop and attempted frisk in William II and the traffic stop in Rodriguez. The Court stated that the "tipster's reliability would be demonstrated only if the suspect subsequently engaged in actions, preferably suggestive of concealed criminal activity, which the anonymous tip predicted in detail" (see, Florida v. J.L., 529 U.S. 266 [2000]). Reasonable suspicion was lacking in William II, where the tip identified defendant's companion, not defendant, it provided no information to suggest that defendant possessed a weapon or engaged in any illegal activity, and there was no indication that the companion handed defendant a weapon. Similarly, in Rodriguez, that defendant matched the description provided by the anonymous tip, without more, did not provide reasonable suspicion for the stop of his vehicle.



People v. Wright
(98 N.Y.2d 657, 746 N.Y.S.2d 743 - June 4, 2002)

Stop Based Upon Traffic Violation Was Lawful

After receiving an anonymous tip regarding the reckless driving of a red Suzuki, a State Trooper stopped defendant's vehicle, which matched the description, after ascertaining that it had a faulty muffler. Defendant failed a field sobriety test and was convicted of felony DWI. The Court of Appeals noted that People v. Robinson (97 N.Y.2d 341 [2001]) establishes that, provided a traffic stop is supported by probable cause, "[n]either the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant." Since the Trooper had probable cause to believe defendant committed a violation of the Vehicle and Traffic Law, the officer's primary motivation for the stop was irrelevant and the stop was lawful.



People v. Farrow
(98 N.Y.2d 629, 745 N.Y.S.2d 752 - April 30, 2002)

Production Of Informant Was Unnecessary Where Police Observations Established Probable Cause

Told by a confidential informant that a drug transaction would take place at a specified location, the police went to the location and observed defendant, who matched the informant's description, remove two bags which appeared to contain cocaine from his pants. The officers then searched and arrested him for drug and weapon possession offenses. The Court of Appeals held that the People's inability to produce the informant for a Darden hearing (see, People v. Darden, 34 N.Y.2d 177 [1974]) did not require suppression of the evidence seized from defendant since probable cause could be established by the independent observations of the officers.



People v. Abad
(98 N.Y.2d 12, 744 N.Y.S.2d 353 - April 25, 2002)

Police Program Involving Random Stops Of Livery Vehicles Is Upheld

The Court of Appeals upheld the constitutionality of the NYPD Taxi/Livery Robbery Inspection Program (TRIP), a program designed to address the high incidence of cab driver robberies and homicides, in which roving patrols of police officers in plainclothes and unmarked cars make suspicionless stops of cabs which elect to participate in the program. Distinguishing TRIP from a similar program that was held unconstitutional in Matter of Muhammad F. (94 N.Y.2d 136 [1999]), the Court found that the TRIP guidelines sufficiently limit police discretion and significantly reduce the intrusiveness of the stops since only participating vehicles displaying the decal can be stopped and vehicle occupants cannot be removed or questioned; absent independent reason to detain them they are free to leave without being questioned.



People v. More
(97 N.Y.2d 209, 738 N.Y.S.2d 667 - February 19, 2002)

Body Cavity Search Incident To Arrest Without Exigent Circumstances Was Invalid

Defendant was arrested in an apartment on drug charges. After conducting a quick pat down for weapons, police handcuffed him and, during a body cavity search, they recovered a plastic bag containing cocaine. The Court of Appeals held that the strip and body cavity search was invalid. Absent an emergency, search warrants are required for intrusions into the body (see, Schmerber v. California, 384 U.S. 757 [1966]). Here the People failed to offer any evidence of exigent circumstances to justify dispensing with the warrant requirement such as that an immediate body cavity search was necessary to prevent his access to a weapon or disposal of drugs.

   

Sentencing


People v. Daniels and People v. Robinson
(5 N.Y.3d 738, 800 N.Y.S.2d 369 - June 14, 2004)

In two unrelated cases, defendants sought to have their persistent felony offender sentences (Penal Law §70.10 and CPL 400.20) vacated. Unlike in People v. Rivera (5 N.Y.3d 61 [2005]), here defendants did not preserve their claims under Apprendi v. New Jersey (530 U.S. 466 [2000]). The Court of Appeals held that even if an Apprendi violation may be raised as an unpreserved mode of proceedings error (see, People v. Rosen, 96 N.Y.2d 329, 335 [2001]), defendants would not prevail on the merits (see, Rivera, supra).

 

People v. West
(5 N.Y.3d 740, 800 N.Y.S.2d 369 - June 14, 2005)

Court Did Not Consider Whether Challenge To Persistent Felony Offender (PFO) Statute Had To Be Preserved Since Statute Was Held Constitutional

The Court of Appeals held there was no need to decide whether defendant could raise his Apprendi argument (see, Apprendi v. New Jersey, 530 US 466 [2000]) for the first time on a motion to set aside his sentence pursuant to CPL 440.20 in light of the Court’s ruling that New York’s PFO statute is constitutional (see, People v Rivera, 5 N.Y.3d 61 [2005]).

 

People v. Rivera
(5 N.Y.3d 61, 800 N.Y.S.2d 51 - June 9, 2005)

Constitutionality Of Persistent Felony Offender (PFO) Sentencing Statutes Upheld

The Court of Appeals upheld the constitutionality of the PFO statutes and defendant’s PFO sentence of 15 years to life. Under the PFO statutes, once the People prove that the defendant is a twice convicted felon and, thus, eligible for PFO sentencing (Penal Law §70.10), the sentencing court may review the history, character and criminality factors to determine whether to impose a recidivist sentence (CPL 400.20). The Court held that the PFO sentencing procedure does not violate defendant’s jury trial rights under Apprendi v. New Jersey (530 U.S. 466 [2000]) and its progeny, which hold that any fact which enhances a sentence must be submitted to a jury and proven beyond a reasonable doubt. The Court concluded that the “sole determinant” for whether a defendant is subject to enhanced PFO sentencing is his prior convictions - - which the Supreme Court has held that a judge (as opposed to a jury) can find. “Once the defendant is adjudicated a persistent felony offender, the requirement that the sentencing court reach an opinion as to the defendant’s history and character is merely another way of saying the court should exercise its discretion.”

Two judges dissented.

 

People v. Hamilton
(4 N.Y.3d 654, 797 N.Y.S.2d 408 - June 7, 2005)

Consecutive Sentence Imposed On Weapon Possession Conviction Violated Penal Law §70.25

Defendant was convicted of manslaughter, assault, reckless endangerment and criminal possession of a weapon for shooting two people and killing one of them. The Court of Appeals ruled that the trial court violated Penal Law §70.25(2) when it imposed a sentence on the weapon possession conviction to run consecutively with the sentences imposed on the manslaughter and assault convictions. “Because the weapon possession was not separate and distinct from the shootings, the statute prohibits consecutive sentences.” To be sentenced consecutively on the weapon charge, it would have been necessary for the People to establish that defendant possessed the pistol with a purpose unrelated to his intent to shoot the two victims.

 

People v. Hemmings
(2 N.Y.3d 1, 776 N.Y.S.2d 201 - March 30, 2004)

Sentencing Court May Permit Multiple Victim Impact Statements

The Court of Appeals held that pursuant to CPL 380.50(2) sentencing courts have discretion to allow more than one person to make a victim impact statement at sentencing. The Court determined that in defendant’s case, the court did not abuse its discretion in allowing five people, including family members and a close friend of the victim, to make statements. The Court cautioned, however, that “[a]s with any exercise of discretion, a court should carefully consider the extent to which additional victim impact statements will assist” in its sentencing determination. “Multiple statements should not be permitted if the court concludes they will be unduly prejudicial to the defendant or will negatively impact the fair administration of justice.”

 

Matter of Chang v. Goord
(1 N.Y.3d 603, 776 N.Y.S.2d 534 - February 12, 2004)

Place of Detention Is Not A Factor To Be Considered In Computing Jail Time Credit

The Court of Appeals, citing Guido v. Goord (1 N.Y.3d 345 [2004]), held that for purposes of calculating jail time credit, Penal Law §70.30(3) makes no distinction between detention in New York and detention by the federal government or sister states. Accordingly, defendant was entitled to credit for the period he was in federal custody.

 

Matter of Guido v. Goord
(1 N.Y.2d 345, 774 N.Y.S.2d 113 - February 12, 2004)

Place of Detention Should Not Be Considered In Computing Jail Time Credit

While petitioner was detained in jail in Florida on Florida charges, New York lodged a warrant against him. After he was acquitted of the Florida charges, he was extradited to New York, detained pending trial, convicted and sentenced to prison. The Court of Appeals held that defendant was entitled to jail time credit for the period of his Florida detention. Pursuant to Penal Law §70.30(3) an inmate is entitled to jail time credit against a New York sentence for a period spent in another state’s custody on charges resulting in acquittal or dismissal “as long as the New York warrant giving rise to the New York sentence ‘was lodged during the pendency of such out-of-state custody.’” Penal Law §70.30(3) makes no distinction between inmates detained in New York and those detained by sister states or the federal government for purposes of determining jail time credit. The Court ruled that the contrary rule in Matter of Peterson v. New York State Dept. of Correctional Servs. (100 A.D.2d 73 [2d Dept. 1984]) and its progeny should no longer be followed.

 

Matter of Murray v. Goord
(1 N.Y.3d 29, 769 N.Y.S.2d 165 - October 28, 2003)

Sentencing Discretion Afforded By Penal Law §70.25(1) Devolves Upon the Last Judge In The Sentencing Chain

Defendant was convicted of drug offenses and sentenced to 7 ½ to 15 years. The next year, he pleaded guilty to first-degree manslaughter and a second judge sentenced him to a consecutive term of 7 ½ to 15 years. Subsequently, the Appellate Division reversed the drug offense charges, and, pursuant to a plea bargain agreement, a third judge sentenced him to a term of 4 ½ to 9 years to run concurrently with the sentence imposed for the manslaughter conviction. Defendant commenced a CPLR article 78 proceeding when he learned that DOCS was computing his parole eligibility date as though the sentences were consecutive rather than concurrent.

The Court of Appeals held that where there is a vacated judgment of conviction and subsequent resentencing of someone subject to an undischarged term of imprisonment, the prerogative to decide whether sentences should run consecutively or concurrently "devolves upon the last judge in the sentencing chain," which, in defendant's case, was the third judge who imposed concurrent sentences. The Court held that Matter of Muntaqim (277 A.D.2d 976 [4th Dept. 2000], lv. denied 96 N.Y.2d 704 [2001]) which DOCS had relied on in making its determination, "is no longer good law." The Court also noted that DOCS cannot disregard a commitment order.

 

People v. Richardson,
(100 N.Y.2d 847, 767 N.Y.S.2d 384 - October 21, 2003)

CPL 430.10 Precluded Alteration Of Defendant's Sentence

While on parole from a prior sentence, defendant shot and killed two people and, as a result, was convicted of second-degree murder and sentenced to two consecutive terms of 25 years to life, resulting in an aggregate term of 50 years to life. Since the trial court failed to specify whether the sentence for the murders would be consecutive to the prior undischarged sentence, DOCS determined that they ran concurrently pursuant to Penal Law §70.25(1)(a) making him eligible for parole in 35 years with credit for time served. Thereafter, the trial court ordered that the sentences would run consecutively, noting that its silence on the issue was an inadvertent mistake. The Court of Appeals held that the authority to modify a lawful sentence once it has commenced is limited to situations where there has been "judicial oversight based upon an accidental mistake of fact or an inadvertent misstatement that creates ambiguity in the record." Here nothing in the record suggested that the judge intended to impose consecutive sentences, and, accordingly, the judge's subsequent order constituted a resentencing prohibited by CPL 430.10.

 

People v. Hicks
(98 N.Y.2d 185, 746 N.Y.S.2d 441 - July 1, 2002)

Sentence Enhancement Based Upon False Denial Of Criminal Conduct Was Not Error

The Court of Appeals held that defendant's false denial of his criminal conduct to the Probation Department, in violation of an explicit written plea condition that he truthfully answer questions asked by the Department, was an appropriate basis for enhancement of his sentence. The Court noted that sentence enhancement based on defendant's violation of the condition did not violate any statute or public policy and his failure to answer truthfully about his crime hindered preparation of an accurate presentence report.

     
Speedy Trial

People v. Brown
(99 N.Y.2d 488, 758 N.Y.S.2d 602 - April 1, 2003)

Defendant's Speedy Trial Rights Were Not Violated

Defendant was convicted of various felonies arising from the investigation of a gun selling ring. Ruling that defendant's CPL 30.30 speedy trial rights were not violated, the Court of Appeals held that a delay of 47 days, which occurred when the trial court adjourned the case after defense counsel announced her intention to file a pretrial motion in an unrelated case against defendant, was excludable under CPL 30.30(4)(a) "as a delay resulting from other proceedings relating to the defendant, including * * * pretrial motions." That defendant never actually filed the motion in the other case was of no consequence since unlike in People v Collins (82 N.Y.2d 177 [1993]), here the pretrial motions were not hypothetical. The Court further ruled that the trial court properly set aside the verdicts on the counts for first and second-degree sale of a firearm since there was no proof that defendant sold the requisite number of firearms. The criminal-sale-of-a-firearm statutes do not allow for "aggregation" of separate sales to meet the statutory thresholds of "20 or more firearms" (Penal Law §265.13) or "10 or more firearms" (Penal Law §265.12).



Matter of George T.
(99 N.Y.2d 307, 756 N.Y.S.2d 103 - December 17, 2002)

Unjustifiably Protracted Suppression Hearing Violated Juvenile's Speedy Trial Rights

The Court of Appeals held that the extensive delay in holding the fact-finding hearing violated the statutory speedy trial rights of a juvenile in custody (see, Family Ct. Act §340.1) and required dismissal of the petition charging him with a class B misdemeanor. The judge's insistence on calling the arresting officer to testify at the suppression hearing over respondent's objection improperly delayed the fact-finding hearing for an additional 47 days. While a suppression hearing is good cause for adjournment of the fact-finding hearing (see, Family Ct. Act §340.1[4][b]), the unjustifiably protracted suppression hearing eliminated the good cause.

One judge dissented.



People v. Cooper
(98 N.Y.2d 541, 750 N.Y.S.2d 258 - October 10, 2002)

Reduction Of Charges From Class A To Class B Misdemeanors Did Not Alter CPL 30.30 Readiness Period

The Court of Appeals rejected defendant's contention that reduction of charges contained in the information from class A to class B misdemeanors immediately before trial, altered the applicable CPL 30.30(1) speedy trial readiness period from 90 days to 60 days. The Court held that the trial readiness periods specified in CPL 30.30(1), which generally are calculated based upon the most serious offense charged in the accusatory instrument and measured from the commencement of the criminal action, are applicable unless one of the circumstances listed in CPL 30.30(5) occurs. The reduction in charges from class A to class B misdemeanors did not alter the readiness period since this particular reduction is not among the circumstances enumerated in CPL 30.30(5) which permit recalculation of the CPL 30.30(1) time frames.



People v. Smietana
(98 N.Y.2d 336, 746 N.Y.S.2d 678 - July 2, 2002)

Pre-Arraignment Period Was Excludable Under CPL 30.30(4)(g).

Rejecting defendant's challenge to his conviction on statutory speedy trial grounds (see, CPL 30.30), the Court of Appeals held that the time period between the filing of an accusatory instrument by a police officer and arraignment was excludable from speedy trial calculations under the CPL 30.30(4)(g) exceptional circumstance exception where the District Attorney was not made aware of the charges until arraignment. The Court noted that pursuant to CPL 110.20 when a police officer files an accusatory instrument outside of New York City, the police are required to notify the District Attorney's office of the pending charges "upon or prior to the arraignment" and the People have no duty to "monitor" filings in criminal courts. Since the People did not know the case existed until the arraignment they were unable announce readiness within the applicable time frame.

Two judges dissented.

   
Statements and Confessions

People v. Paulman
(5 N.Y.3d 122, 800 N.Y.S.2d 96 - June 29, 2005)

Unwarned Statements Did Not Taint Subsequent Mirandized Statements Where They Were Not Part Of A Continuous Chain Of Events

Defendant made four incriminating statements in successive interrogations which were admitted at his trial, including: unwarned admissions during non-custodial interrogation at his home; a handwritten statement in the station patrol room; Mirandized oral statements to another officer; and a typed statement after a written Miranda waiver. Affirming the conviction, the Court of Appeals held that the handwritten statement defendant made in the patrol room after a trooper told him to write down his “best recollection” of what had occurred was custodial interrogation and should have been preceded by Miranda warnings. However, the unwarned statement did not taint the subsequent Mirandized statements because they were not part of a “continuous chain of events” where there was a change in personnel, locations, and methods of eliciting information in the successive interrogations, and the Miranda violation occurred after defendant had chosen to answer questions in a non-custodial setting (see, People v. Chapple, 38 N.Y.2d 112, 114 [1975]). Admission of the unwarned statement was harmless error since it was cumulative of the prior oral admissions defendant made at his home.

     
Statute of Limitations

People v. Mills
(1 N.Y.3d 269, 772 N.Y.S.2d 228 - October 28, 2003)

Defendant's Request For A Lesser Offense Charge Forfeits Statute Of Limitations Defense

Defendant was indicted in 2000 for depraved indifference murder, which has no statute of limitations, in connection with the 1978 drowning of the victim. At trial, defendant requested that criminally negligent homicide, which has a 5-year statute of limitations, be submitted to the jury as a lesser included offense. The trial court advised defendant that his request waived any statute of limitations defense and submitted the requested charge. Defendant was acquitted of murder and convicted of the lesser crime. Affirming the conviction, the Court of Appeals ruled that "where an indictment is based on legally sufficient evidence defendant's statute of limitations defense is forfeited or waived by his request to charge the lesser included offense. This rule eliminates the danger of prosecutorial overcharging to circumvent the statute of limitations." Here the grand jury evidence was legally sufficient to support the depraved indifference charge and, accordingly, defendant forfeited the statute of limitations defense by his request for the lesser offense charge.

The Court also held that the marital privilege (CPLR §4502[b]) was inapplicable to inculpatory statements made by defendant to his wife where defendant was choking and threatening his wife at the time he made the statements.

One judge dissented.

     
Statutory Presumptions

Matter of Raquel M.
(99 N.Y.2d 92, 752 N.Y.S.2d 268 - November 21, 2002)

Penal Law §165.05 (1) Presumption Was Correctly Applied

Appellant was found guilty of the charge of third-degree unauthorized use of a vehicle and adjudicated a juvenile delinquent as a result of riding in a car that was stolen from a police officer. The Court of Appeals held that Family Court appropriately applied the statutory presumption that a person who rides in a vehicle without the owner's consent is aware that he/she does not have such consent (Penal Law §165.05[1]). It was not irrational for the court to credit the presumption where there was evidence that appellant was a passenger late at night in a car with a police placard on the windshield and the vehicle was recently stolen not far from where appellant lived.

     
Treaties

People v. Patterson
(5 N.Y.3d 91, 800 N.Y.S.2d 80 - June 14, 2005)

Members Of Tuscarora Nation Have No Off-Reservation Fishing Rights On Former Seneca Lands Under The 1794 Treaty Of Canandaigua

Defendant, a member of the Tuscarora Indian Nation, was issued a citation by an Environmental Conservation Officer for failing to have an identifying tag on his ice fishing tip-up in violation of 6 NYCRR 10.4-7 while ice fishing in a State Park located on former Seneca lands outside the Tuscarora Reservation. Affirming the conviction, the Court of Appeals held that the Treaty of Canandaigua of 1794 does not vest members of the Tuscarora Nation with off-reservation fishing rights on former Seneca lands. “When the Seneca divested themselves of their interest in the land by the Treaty of Big Tree of 1797, the Tuscarora right to free use and enjoyment ended.” Since Tuscarora members have no treaty right to off-reservation fishing on former Seneca lands, the regulation applied to defendant.

     
Substantive Offenses
  Burglary

People v. Barney
(99 N.Y.2d 367, 756 N.Y.S.2d 132 - February 20, 2003)

Decedent's House Was A Dwelling For Purposes Of Burglary Statute

The Court of Appeals ruled that the evidence supported defendant's conviction of second-degree burglary for burglarizing a dwelling (Penal Law §140.25[2]) although the occupant had died three days before defendant's entry. Evidence that the house was furnished with working utilities and still contained the decedent's property supported the jury's finding that the building was a dwelling which is defined for purposes of the burglary statute as "a building usually occupied by a person lodging therein at night" (see, Penal Law §140.00[3]). The Court declined to adopt a rule that "a house loses its character as a dwelling immediately upon the death of its sole occupant merely because there is no conclusive proof that any other person intended to reside there."

     
  Bribery
 

People v. Wolf
(98 N.Y.2d 105, 745 N.Y.S.2d 766 - May 7, 2002)

Felony Commercial Bribing Requires Proof Of Actual Economic Loss

Defendant, an attorney, was convicted of first-degree commercial bribing as a result of paying kickbacks to insurance company adjusters for expediting the settlement of his clients' personal injury claims. The Court of Appeals held that felony commercial bribing requires proof of actual economic loss to the bribe receiver's employer or principal as a result of the bribery (see, Penal Law §§180.03; 180.08). A kickback in itself does not establish the requisite economic loss. The Court reduced defendant's conviction on one count of first-degree commercial bribing to the misdemeanor of second-degree commercial bribing based upon the lack of proof of economic loss.

 
  Conspiracy
 

People v. Caban
(5 N.Y.3d 143, 800 N.Y.S.2d 70 - June 14, 2005)

Coconspirator’s Statements Were Properly Admitted At Trial

Defendant was convicted of conspiracy to murder a rival drug dealer based largely on the testimony of a drug dealer who worked for defendant. The witness testified that one of the coconspirators said “I’ll do it” when defendant offered to pay for the murder and another offered to provide the gun. Affirming the conviction, the Court of Appeals held that these declarations were nonhearsay with respect to establishing the conspiracy and, therefore, a prima facie case of conspiracy independent of the statements was not a prerequisite to their admission for that purpose. The statement that immediately before the shooting the coconspirator who provided the gun said “it’s time” was offered for its truth, and, therefore, was hearsay as to the conspiracy charge. It was properly admissible against defendant as a declaration made in the course or in furtherance of the conspiracy, provided the People established a prima facie case of conspiracy independent of any hearsay statements, which they did.

The Court of Appeals further ruled that a witness was not an accomplice as a matter of law and, therefore, defense counsel was not ineffective in failing to request a charge that he was (CPL 60.22). The Court further held that unlike the Federal standard for ineffective assistance of counsel which requires the defendant to demonstrate deficient performance which prejudiced the defendant (see, Strickland v. Washington (466 US 668 [1984]), a showing of prejudice is not required under our State standard of meaningful representation. Since defendant was not denied meaningful representation under the higher State standard, the Court necessarily rejected his federal constitutional challenge.

 
  Depraved Indifference Murder
 

People v. Duggins
(3 N.Y.3d 522, 788 N.Y.S.2d 638 - December 2, 2004)

The Term “Criminal Transaction” In Penal Law §125.27(1)(a)(viii) Incorporates The Definition In CPL 40.10(2)

Within a 90-minute time span, defendant shot two gang members he believed were going to carry out a contract to kill him. The Court of Appeals held that there was legally sufficient evidence to support his ensuing conviction of first-degree murder by killing multiple victims during the same criminal transaction (Penal Law §127.27[1][a] [viii]) based upon these acts. The Court concluded that the term “criminal transaction” in Penal Law §125.27(1)(a)(viii) incorporates the statutory definition of that term in CPL 40.10(2). “Thus, liability under Penal Law §125.27 (1)(a)(viii) attaches only to a defendant who commits an intentional murder and ‘causes the death of [at least one] additional person’ (Penal Law §125.27[1][a][viii]) by engaging in ‘two or more or a group of acts either . . . so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or . . . so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture’ (CPL 40.10[2]).” Same transaction murder requires that “any additional homicides must be contemporaneous with the threshold intentional murder.” Here the “spatial and temporal proximity” of the shootings “which were fueled by a common motivation establish that he acted during the ‘same criminal transaction.’”

Three judges dissented.

 
 

People v. Payne
(3 N.Y.3d 266, 786 N.Y.S.2d 116 - October 19, 2004)

Use Of A Weapon Cannot Result In Depraved Indifference Murder Conviction Where There Is Intent To Kill

After acquitting defendant of intentional murder, the jury convicted him of depraved indifference murder (Penal Law §125.25 [2]) arising from an incident where he went to the victim’s home and shot him at point blank range with a twelve-gauge shotgun. The Court of Appeals reversed the conviction, ruling that defendant did not commit depraved indifference murder within the meaning of the statute. “The use of a weapon can never result in depraved indifference murder when, as here, there is a manifest intent to kill.” The Court further ruled that defendant preserved his claim of legal insufficiency of the evidence where unlike in People v. Hines (97 N.Y.2d 56 [2001]), defendant introduced additional proof after the trial court reserved decision on his CPL 290.10 dismissal motion made at the close of the People’s case.

Two judges dissented.

 
 

People v. Gonzalez
(1 N.Y.3d 464, 775 N.Y.S.2d 224 - March 25, 2004)

Evidence That Defendant Shot The Victim Multiple Times At Close Range Did Not Establish Depraved Indifference Murder

Defendant was acquitted of intentional murder (Penal Law §125.25[1]) and convicted of depraved indifference murder (Penal Law §125.25[2]) as a result of shooting the victim 10 times at close range. The Court of Appeals held that the evidence was legally insufficient to support the depraved indifference murder count and the trial court erred in submitting it to the jury. Depraved indifference murder “involves a killing in which the defendant does not have a conscious objective to cause death, but instead is recklessly indifferent, depravedly so, to whether death occurs.” Here the only conclusion reasonably supported by the evidence was that defendant intended to kill the victim.

 
 

People v. Hafeez
(100 N.Y.2d 253, 762 N.Y.S.2d 572 - June 10, 2003)

Evidence Was Legally Insufficient To Support Depraved Indifference Murder
Conviction

Defendant was convicted of depraved indifference murder on a theory of accomplice liability arising from an incident in which defendant and co-defendant, after planning the attack in advance, lured the deceased out of a bar and defendant pushed him against a wall enabling co-defendant to fatally stab him. The Court of Appeals reversed the conviction, ruling that there was no record support for the jury's finding that defendant's and co-defendant's conduct was reckless or depraved rather than intentional. Unlike in People v Sanchez, 98 N.Y.2d 373 (2002), here the "heightened recklessness" required for depraved indifference was not present where "the actions of both defendants were focused on first isolating, and then intentionally injuring the victim." The Court further reinstated defendant's fourth-degree conspiracy conviction which had been reversed by the Appellate Division, ruling that defendant's conduct could amount to conspiracy to commit the class B felony of assault in the first-degree.

One judge dissented in part.

 
 

People v. Roche
(98 N.Y.2d 70, 745 N.Y.S.2d 775 - June 4, 2002)

Failure To Charge Extreme Emotional Disturbance Defense Was Not Error

Defendant was convicted of second-degree murder stemming from the brutal stabbing of his wife. The Court of Appeals held that defendant was not entitled to a charge on the affirmative defense of extreme emotional disturbance because he failed to present any evidence to establish the elements of the defense - - that he actually acted under the influence of an extreme emotional disturbance for which there was a reasonable explanation or excuse (see, Penal Law §§125.25[1][a]; 125.20[2]). The Court stated that a jury may not infer the presence of an extreme emotional disturbance based solely on proof that the crime was especially brutal or violent.

   
  Drug Offenses
 

People v. Samuels and People v. Henderson
(99 N.Y.2d 20, 750 N.Y.S.2d 828 - November 14, 2002)

Evidence Supported Drug Sale Conviction On Offer To Sell Theory

The Court of Appeals held that the evidence was sufficient to support defendants' drug sale conviction on "an offer to sell" theory although no physical evidence was found at the scene. Unlike in People v. Mike (92 N.Y.2d 996 [1998]), here several factors warranted a finding that defendants had the ability and intent to consummate a sale of cocaine, including, the undercover officer's observation of cocaine in defendants' possession and they engaged in conduct typical of drug sale operations; they accepted payment and operated at a known drug selling location. Although the jury instructions were held to be adequate, the Court stated that the better practice for the future would be to charge the jury that an offer to sell theory requires proof that a defendant had the intent and ability to make the sale.

       
  Endangering the Welfare of a Child
 

People v. Hitchcock and People v. Duenas
(98 N.Y.2d 586, 750 N.Y.S.2d 580 - October 24, 2002)

Child's Unauthorized Possession Of Gun Supports Endangering The Welfare Of A Child Conviction Where Weapons And Ammunition Are Openly Accessible In The Home

In two unrelated cases, defendants were convicted of endangering the welfare of a child (Penal Law §260.10[1]) arising from incidents in which a child in the household obtained unauthorized possession of the defendant's gun and inadvertently discharged it, resulting in another child's injury or death. In Hitchcock the Court of Appeals held the evidence established the basic elements of endangering the welfare of a child, i.e., that defendant "knowingly" acted in a manner "likely to be injurious" to a minor where he had 23 firearms in his home at the time of the shooting, all openly accessible and loaded or near ammunition. The evidence was legally insufficient in Duenas where defendant stored only one gun in the house and made a significant effort to conceal it.

     
  First-Degree Murder
 

People v. Hansen
(99 N.Y.2d 339, 756 N.Y.S.2d 122 - February 13, 2003)

Sentencing Procedures For Non-Capital First-Degree Murder Upheld

The Court of Appeals upheld the constitutionality of the first-degree murder sentencing provision CPL 400.27(1), rejecting defendant's due process challenge to the provision which, unlike for capital defendants, does not afford non-capital defendants a separate sentencing hearing at which they can present evidence of mitigating factors and a sentencing jury. Defendant was convicted of non-capital first-degree murder and sentenced by the trial judge to life without parole. Upholding the sentence, the Court stated that the "heightened standard of due process" applicable to sentencing procedures in death cases is not applicable in non-capital cases. Defendant's due process rights were protected by other procedural safeguards such as the pre-sentence investigation and his sentencing hearing which ensure that the sentencing court relies on accurate information and all parties have an opportunity to respond.

 
 

People v. Mower
(97 N.Y.2d 239, 739 N.Y.S.2d 343 - February 14, 2002)

Sentence Of Life Without Parole May Be Imposed Upon Guilty Plea To First-Degree Murder Where Death Notice Has Not Been Filed

The Court of Appeals held that if the People decline to pursue a death sentence, the trial court is authorized to impose a sentence of life without parole pursuant to CPL 400.27(1) upon entry of a guilty plea to first-degree murder. The invalidation of the post-death notice plea bargaining provisions of the death penalty statute (CPL 220.10[5][e] and CPL 220.30[3][b][vii]) in Matter of Hynes v. Tomei (92 N.Y.2d 613 [1998]) did not render defendant's guilty plea invalid and his sentence illegal since here the trial court's sentencing authority is derived from CPL 400.27(1) and not from the plea provisions which were declared unconstitutional in Hynes.

     
 

Forgery

 

People v. Cunningham
(2 N.Y.3d 593, 780 N.Y.S.2d 750 - June 10, 2004)

Forgery Requires Use Of A False Name

Reversing defendant’s forgery conviction under Penal Law §170.10, the Court of Appeals held that he did not commit forgery when he signed his own name to a corporate check, in excess of his authority. Although his conduct could constitute larceny or false pretenses, it is not forgery to sign one’s own name to an instrument, and falsely represent that one has authority to do so (see, Penal Law §170.00[4]), except in the rare instance “where the signing is done in such a way as to deceive others into believing that the signer is in fact some third party.” If the “ostensible maker and the actual maker are one and the same, there can be no forgery.”

     
 

Harrassment

 

People v. Mangano
(100 N.Y.2d 569, 764 N.Y.S.2d 379 - July 2, 2003)

Telephone Messages Did Not Support Aggravated Harassment Conviction

Defendant was convicted of second-degree aggravated harassment (Penal Law § 240.30[1]) arising from telephone messages she left on a Village Parking Violations Bureau answering machine. After providing vehicle information to avert ticketing of her overnight guests who did not have required parking permits, defendant wished two Village employees ill health and complained of their job performance and tickets she had received. Reversing the conviction, the Court of Appeals held that defendant's messages did not fall within any of the proscribable classes of speech or conduct. The Court stated that "defendant's messages were crude and offensive but made in the context of complaining about government actions, on a telephone answering machine set up for the purpose (among others) of receiving complaints from the public."

     
  Larceny
 

People v. Thompson
( 99 N.Y.2d 38, 751 N.Y.S.2d 162 - November 14, 2002)

Theft Of "Dummy" Credit Card Supported Fourth-Degree Grand Larceny Conviction

Defendant stole a decoy pocketbook which contained a "dummy" credit card with a $100 limit. The card had been provided to the police by American Express under a fictitious name to be used in sting operations. The Court of Appeals held that the card constitutes a "credit card" within the meaning of Penal Law §155.00(7) and General Business Law (GBL) §511, elevating its theft to fourth-degree grand larceny and fourth-degree criminal possession of stolen property. The Court rejected defendant's claim that the term "issue" in GBL §511(1) requires the creation of an actual credit relationship between the issuer and holder which did not exist here.

     
  Robbery
 

People v. Schultz
(4 N.Y. 3d 521, 797 N.Y.S.2d 24 - May 5, 2005)

Exclusion of Third-Party Culpability Evidence Was Not An Abuse Of Discretion

Charged with robbing a restaurant, defendant was prohibited at trial from exhibiting to the jury a newspaper photo of another individual who was indicted for a string of robberies in a nearby precinct and who defendant contended was the robber. Affirming defendant’s first-degree robbery conviction, the Court of Appeals held that the trial court did not abuse its discretion in excluding the third-party culpability evidence where here, unlike in People v. Primo (96 N.Y.2d 351 [2001]), there was no evidence linking the other alleged suspect to the crime. The Court further ruled that the evidence was legally sufficient to support the conviction where the restaurant owner identified defendant at trial and in pre-trial lineups. That the other eyewitness could not identify the defendant as the perpetrator in court merely created a question of credibility for the jury to resolve.

One judge dissented in part.

   
 

People v. Carr-El
(99 N.Y.2d 546, 754 N.Y.S.2d 198 - December 17, 2002)

Evidence Supported Second-Degree Robbery Conviction

The Court of Appeals held that the evidence supported defendant's conviction of second-degree robbery (Penal Law §160.10[1]) and grand larceny based on evidence that defendant participated as a lookout while his accomplice stole property from the sleeping victim on a subway car, and, when the victim awoke shortly thereafter and demanded the return of his property, the accomplice threatened the use of force. The jury was warranted in concluding that the taking and threat occurred within minutes of each other and were related as part of the criminal transaction.

   
  Sex Offenses
 

People v. Alonzo
(_N.E.2d _- February 24, 2011)

An Indictment Is Multiplicitous When A Single Offense Is Charged In More Than One Count

Defendant knocked two women to the ground and groped their body parts.  Defendant, indicted on, inter alia, four counts of sexual abuse (two for each of the two victims), moved to dismiss two of the counts as multiplicitous. The County Court, Westchester County, granted the motion, and the People appealed. The Supreme Court, Appellate Division affirmed, and the People appealed. The Court of Appeals held that the indictment was multiplicitous.  Where the evidence before a grand jury shows a single, uninterrupted attack in which the attacker gropes several parts of a victim's body, the attacker may be charged with only one count of sexual abuse.

     
  Stalking
 

People v. Stuart
(100 N.Y.2d 412, 765 N.Y.S.2d 1 - July 2, 2003)

Court Upholds Constitutionality Of Anti-Stalking Statute

Defendant was convicted of fourth-degree stalking (Penal Law §120.45[1][2]) after he followed the victim and made unwanted advances over five weeks. Affirming the conviction, the Court of Appeals held that Penal Law §120.45, which requires that the actor intentionally and "for no legitimate purpose" engage in a course of conduct directed at a specific person which is likely to place the victim in reasonable fear of material harm, or cause the victim mental or emotional harm, was not unconstitutionally vague as applied to defendant or on its face. The Court noted that in addressing a vagueness challenge a two-part test is applicable: the statute must be sufficiently specific to give fair notice of the conduct it prohibits and provide officials with clear standards of enforcement. The Court further ruled that where, as here, a statute is constitutional as applied, it is necessarily valid on its face.

     
  Transit Authority Rule
 
People v. Smith
(100 N.Y.2d 571, 764 N.Y.S.2d 381 - July 2, 2003)

New York City Transit Authority Rule Is Not Unconstitutionally Vague

Defendants were charged with violating 21 NYCRR 1050.4(c), a rule of the New York City Transit Authority, after police saw them accept money to "swipe" a farecard to allow commuters through a turnstile into the subway without entering themselves. The rule provides that except for authority employees, "no person shall sell, provide . . . or create any version of fare media or otherwise authorize access to or use of the facilities, conveyances or services of the authority without the written permission of a representative of the authority." The Court of Appeals held that defendants' conduct clearly violated 21 NYCRR 1050.4(c) and rejected defendant's argument that it failed to furnish adequate notice as to the prohibited conduct or gave the police excessive discretion.
     
  Unlawful Practice of Medicine
 

People v. Santi and People v. Corines
(3 N.Y.3d 234, 785 N.Y.S.2d 405 - October 21, 2004)

Licensed Physicians Are Subject To Criminal Prosecution For Aiding And Abetting An Unauthorized Individual In The Unlawful Practice Of Medicine

Defendant Santi was convicted of the felony of unlicensed practice of medicine under Education Law §6512(1) stemming from administering anesthesia to three patients while she was working in the medical office of defendant Corines, a licensed physician, after her license to practice medicine had been suspended. Defendant Corines was convicted of aiding and abetting defendant Santi under Education Law §6512(1). Affirming the convictions, the Court of Appeals, held that a licensed physician is not exempt from criminal prosecution under Education Law §6512 for aiding and abetting an unauthorized individual in the unlawful practice of medicine. Here the evidence was legally sufficient to support the convictions and the People were not required to present expert testimony on the administration of anesthesia to refute defendants’ claims that no drugs were administered. Defendant Corines was also liable under the accessorial liability statute, Penal Law §20.00, since he “intentionally aided” defendant Santi in the practice of medicine knowing she was not authorized to practice.

     
  Vehicle and Traffic Law
 

People v. Loren
(4 N.Y.3d 411, 796 N.Y.S.2d 26 - April 28, 2005)

Vehicle and Traffic Law (VTL) §1102 Permits A Fire Chief To Empower Subordinate Firefighters To Regulate Traffic At A Fire Or Accident Scene

Acting on the Fire Department Chief’s orders, members of a volunteer fire department responding to an automobile accident set up a roadblock. Defendant refused to stop and was convicted of violating VTL §1102 which prohibits failure or refusal “to comply with any lawful order or direction of any . . . person duly empowered to regulate traffic.” The Court of Appeals ruled that VTL §1602(b) authorizes a fire chief to direct traffic at the scene of an accident or fire and to delegate this authority to regulate traffic to subordinates. The volunteer firefighters were “empowered to regulate traffic” pursuant to VTL §1102 since they were acting under the Fire Chief’s instructions. Accordingly, defendant was properly charged with violating VTL §1102.

     
Trials

Courtroom Television Network LLC (Court TV) v. State Of New York
(5 N.Y.3d 222, 800 N.Y.S.2d 522 - June 16, 2005)

Ban On Audio-Visual Coverage Of Courtroom Proceedings Is Constitutional

In a proceeding for a declaratory judgment brought by Court TV, the Court of Appeals ruled that Civil Rights Law §52, which bans audio-visual coverage of most courtroom proceedings, is constitutional under both the Federal and State Constitution. The Court concluded that the media has no constitutional right to televise trials and the decision whether or not to permit cameras in the courtroom is a legislative prerogative.

 

People v. Stiggins,
(1 N.Y.3d 529, 770 N.Y.S.2d 683 - November 20, 2003)

Town Justice's Lack Of Control Over Defendant's Trial Required Reversal

The Court of Appeals reversed defendant's conviction of third-degree assault and endangering the welfare of an incompetent person ruling that she was deprived of a fair trial by the Town Justice's unfamiliarity with the mechanics of a jury trial. The Court noted that the judge had to be guided by the prosecutor through all aspects of jury selection thereby relinquishing control over the jury selection process and that such lack of control permeated the remainder of the trial. Thus, "the judge failed to satisfy his obligation to maintain the integrity of the proceedings."

 

People v. Arnold
(98 N.Y.2d 63, 745 N.Y.S.2d 782 - June 4, 2002)

Trial Court Abused Its Discretion By Calling Witness Over Parties' Objection

Reversing defendant's conviction, the Court of Appeals held that the trial court abused its discretion when it called a police officer to testify on a key issue after both parties rested. While there is no absolute bar to a judge calling a witness over the objection of a party, "[i]n those unusual circumstances when a court feels compelled to do so, it should explain why, and invite comments from the parties." A court may not assume an advocacy role. The error was not harmless where the court gave no reason for calling the officer and the evidence was damaging to defendant and deprived him of the ability to request that the jury draw a negative inference from the People's failure to produce the officer.

     
Waiver of Appeal

People v. Hawkins
(99 N.Y.2d 592, 757 N.Y.S.2d 810 - February 18, 2003)

Appeal Waiver, Conditioned On Erroneous Exercise Of Interest Of Justice Jurisdiction, Was Invalid

On defendant's motion to set aside the verdict pursuant to CPL 330.30(1), instead of assessing the legal sufficiency of the evidence, the trial court reduced defendant's conviction to a lesser included offense "in the interest of justice," conditioned on defendant's waiver of his right to appeal. The Court of Appeals held that since County Court lacked interest of justice jurisdiction to reduce the conviction (see, People v. Carter, 63 N.Y.2d 530 [1984]), it was error to exercise such jurisdiction in exchange for defendant's waiver of appeal. The Appellate Division's corrective action in this case, vacating the appeal waiver and affirming defendant's conviction of the lesser included offense upon a review of the legal sufficiency of the evidence was appropriate pursuant to CPL 470.15(2)(a).

 

People v. Campbell
(97 N.Y.2d 532, 743 N.Y.S.2d 396 - April 30, 2002)

CPL 380.30(1) Unreasonable Delay In Sentence Claim Survives General Waiver Of Appeal

After defendant waived his right to appeal as part of a negotiated guilty plea, he failed to appear for sentencing and when returned two years later on bench warrants, he moved to vacate his plea and dismiss the indictments pursuant to CPL 380.30(1) contending there was an unreasonable delay in sentencing. The Court of Appeals held that a claim of unreasonable delay in sentencing under CPL 380.30(1) survives a waiver of appeal as it challenges the legality of the sentence. The Court noted, however, that the appellate court was not precluded from affirming the lower court's findings in defendant's case that the delay was due to defendant's conduct.