COURT OF APPEALS

 

CRIMINAL LAW/APPEALS/CONSTITUTIONAL LAW/ATTORNEYS

 

Constitutionality of Statute Allowing Defective Sentence to Be Remedied by a Sentence Without Post Release Supervision (CPL 70.85) Is an Open Issue Which Should Be Decided by the Sentencing Court in the First Instance/Crawford Motion Relieving Counsel of Perfecting an Appeal Because of the Absence of Non-Frivolous Issues Should Not Have Been Granted

 

The Court of Appeals determined the Appellate Division should not have granted counsel’s motion to withdraw from representing the defendant on appeal on the ground the appeal would be “wholly frivolous.”  There is an issue whether the statute which allows resentencing the defendant to a term of imprisonment without post release supervision after post release supervision had been (illegally) administratively imposed is constitutional:

 

Defendant timely appealed the resentence and was assigned counsel, who reviewed the file and informed defendant of our decision in People v Boyd (12 NY3d 390 [2009]), where this court upheld defendant Boyd's sentence under Penal Law § 70.85, but left open the constitutionality of that statute, stating that it should be decided by the sentencing court in the first instance.  Despite this open issue, counsel filed a motion pursuant to People v Crawford … arguing that there were no non-frivolous issues to be raised on defendant's behalf and asking to be relieved as counsel.  Defendant filed a pro se supplemental brief arguing that her sentence was illegal, and that she was denied effective assistance of counsel.  The Appellate Division granted counsel's motion and affirmed the resentence, without addressing defendant's pro se contentions (96 AD3d 1515 [2012]).  * * *

 

Defendant argues that her appeal was not wholly frivolous because she had two claims: (1) the claim that Penal Law § 70.85 is unconstitutional as applied to her case, and (2) that defendant was denied effective assistance of counsel at every level.  We agree with defendant that the Appellate Division erred in granting the Crawford motion.  Without expressing any opinion on the ultimate merits, at the time defendant's appellate counsel filed his Crawford motion, the claims to that court were not wholly frivolous and, therefore, the court should have denied appellate counsel's motion.  As a result, a reversal and remittal for a de novo appeal is warranted… . People v Beaty, 84, Ct App 1-16-14

 

 

APPELLATE DIVISION

 

CRIMINAL LAW

 

Judge’s Refusal to Grant a One-Day Adjournment to Allow Defendant to Present a Witness (After the Judge Granted the People’s Request for a Missing-Witness Jury Instruction) Was Reversible Error

 

The First Department reversed defendant’s conviction because the judge refused to grant defendant a one-day adjournment to bring in a witness after granting the People’s request for a missing-witness jury instruction:

 

Having granted the People's request for the [missing witness] instruction, the court should have granted defendant a short adjournment. A missing witness issue "must be raised as soon as practicable so that the court can appropriately exercise its discretion and the parties can tailor their trial strategy”… . Here, the moving party raised the issue after defendant's testimony, when the issue became apparent. The court should have then accorded the nonmoving party the opportunity to avoid the missing witness charge by calling the witness. Although defendant was willing to call the witness, the court effectively rendered the witness unavailable, thus negating the availability requirement for a missing witness charge.

 

The court apparently denied the adjournment on the ground that defendant should have anticipated the missing witness issue. However, an adjournment to the next day would have been reasonable under the circumstances. People v Manzi, 2014 NY Slip Op 00280, 1st Dept 1-16-14

 

 

CRIMINAL LAW/EVIDENCE

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Level Three Forcible Stop Not Justified, Convictions Reversed---Prior Arrest of One of the Defendants and the Fact that Both Defendants Were Running While Looking Back Over their Shoulders Was Not Enough to Justify the Forcible Stop

 

In a two separate full-fledged opinions by Justice Manzanet-Daniels, over dissents, the First Department reversed defendants’ convictions, finding that their motions to suppress should have been granted.  Defendants were stopped after the police observed them running at 4:40 am.  Both men, Thomas and Brown, were looking back over their shoulders as they ran.  Brown (but not Thomas) was known to the police as someone who “engaged in fraudulent accosting in that area…”. The First Department determined the stop was not justified for either defendant:

 

A level three forcible stop is constitutional only if the police have a "reasonable suspicion that a particular person was involved in a felony or misdemeanor" … . In determining whether the police officers had the requisite reasonable suspicion, only the information known to the officers prior to the forcible stop is relevant … .

 

The officers' knowledge of defendant Brown's prior criminality in the same neighborhood was not sufficient to give rise to reasonable suspicion justifying a level three intrusion as to Brown; perforce, knowledge of Brown's prior criminality was insufficient to justify a level three intrusion as to [Thomas], who was merely in Brown's company and was not even known by the officers to have a criminal record. The police sergeant only knew [Thomas] by face, and the officer did not know [Thomas] personally and had never arrested him. … The motion court, in denying [Thomas’] motion to suppress, appears to have endorsed a theory of "guilt by association," which must vigorously be rejected.

 

 "[A] stop based on no more than that a suspect has previously been arrested . . . is premature and unlawful and cannot be justified by subsequently acquired information resulting from the stop"… . * * *

 

The fact that the officers observed [Thomas] and Brown running does not elevate the level of suspicion. Flight, accompanied by equivocal circumstances, does not supply the requisite reasonable suspicion … . The police did not observe conduct indicative of criminality, nor did they even possess information that a crime had occurred in the area. People v Thomas, 2014 NY Slip Op 00291, 1st Dept 1-16-14; same result in People v Brown, 2014 NY Slip Op 00292, 1st Dept 1-16-14

 

 

CRIMINAL LAW

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Trial Judge’s Failure to Conduct an Inquiry Concerning a Juror’s Conduct During the Trial Required Reversal

 

The First Department reversed a conviction because the trial judge did not conduct an inquiry (in which defense counsel could participate) concerning the disqualification of a juror relating to conduct occurring during the trial.  The juror had informed a court officer that the juror had been invited to a breakfast with the District Attorney:

 

In People v Buford (69 NY2d 290 [1987]), the Court of Appeals set forth the basic framework to be followed when the trial court is considering disqualifying a juror because of conduct that occurs during the trial. As the Court noted, the court should conduct an inquiry of the juror, in which counsel should be permitted to participate if they desire, and evaluate the nature and importance of the information and its impact on the case. Although the Court of Appeals acknowledged that "[a]n in camera inquiry may not be necessary in the unusual case involving an obviously trivial matter where the court, the attorneys, and defendant all agree that there is no possibility that the juror's impartiality could be affected and that there is no reason to question the juror," here defense counsel wanted the juror questioned (id. at 299 n 4). We conclude that there should have been an inquiry, in which defense counsel could participate, because the disclosure indicated a possible issue related to that juror's continued ability to serve in an impartial manner… .  People v Ventura, 2014 NY Slip Op 001182, 1st Dept 1-14-14

 

 

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CRIMINAL LAW/EVIDENCE

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Police Did Not Have Reasonable Suspicion of Criminal Activity, Defendant Had Right to Ignore Police Command to Stop

 

In a full-fledged opinion by Justice Richter, the First Department reversed the denial of defendant’s motion to suppress.  After a police officer stopped a vehicle (a Lexus), the officer saw the defendant approach the vehicle on foot, receive a bag from the driver, and walk away.  The defendant was then ordered to stop:

 

After pulling the driver of the Lexus over for a traffic infraction, Detective Mongelli observed his nervous demeanor, and learned that his license had been revoked. The detective then saw defendant arrive at the Lexus, receive a black bag from the driver, and walk away. These observations provided, at most, a founded suspicion of criminal activity. … In response to this founded suspicion that criminal activity was afoot, Detective Mongelli was permitted to conduct a common-law inquiry. But the police actions here went beyond a level two intrusion and constituted a level three stop and detention.  * * * Furthermore, the detective's command to "turn the bag over" constituted at least a level three intrusion, requiring reasonable suspicion. * * *

 

It is well established that a citizen has a right not to respond to law enforcement inquiries and to walk away from the police …[.] [T]he Court of Appeals reaffirmed this principle and described an individual’s “right to be let alone” as the distinguishing factor between the level of intrusion permissible under the common-law right to inquire and the right to make a forcible stop. The Court reasoned that “[i]f merely walking away from the police were sufficient to raise the level of suspicion to reasonable suspicion . . . the common-law right of inquiry would be tantamount to the right to conduct a forcible stop and the suspect would be effectively seized whenever only a common-law right of inquiry was justified” … . The Court concluded that to elevate a level two inquiry to a level three stop, the police must obtain additional information or make additional observations of suspicious behavior sufficient to establish reasonable suspicion … . Because no such additional information or observations existed here, the police lacked reasonable suspicion to justify the seizure that occurred. People v Major, 2014 NY Slip Op 00197, 1st Dept 1-14-14

 

 

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CRIMINAL LAW

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Reversible Error to Allow Prosecutor to Question Defendant About His Post-Arrest Silence

 

The Second Department reversed defendant’s conviction because the prosecutor questioned him about his post-arrest silence:

 

…[T]he Supreme Court erred when it permitted the prosecutor to question the defendant about his post-arrest silence. Generally, a defendant's post-arrest silence cannot be used for impeachment purposes … . Further, " an individual's pretrial failure to speak when confronted by law enforcement officials is of extremely limited probative worth' while the risk of prejudice is substantial'" … .

 

Here, over defense counsel's objection, the prosecutor was permitted to impeach the defendant's testimony with his failure to offer an exculpatory version of the events to the police. Although the defendant initially responded to certain questions asked by the police, he then invoked his right to remain silent and offered no information "narrat[ing] the essential facts of his involvement in the crime" … . Accordingly, the Supreme Court erred in allowing the prosecutor to pursue this line of inquiry… . People v Theodore, 2014 Slip Op 00246, 2nd Dept 1-15-14

 

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CRIMINAL LAW/CONSTITUTIONAL LAW

 

Religious Brochure Urging Confession (Given to Defendant by a Deputy Sheriff) Required Trial Court to Make Sure Defendant Understood His Right to Refrain from Testifying at Trial---Trial Court’s Colloquy with Defendant Deemed Sufficient

 

In a full-fledged opinion by Justice Peters affirming defendant’s conviction, the Third Department determined the trial judge had made an adequate inquiry to ensure that defendant understood his right to refrain from testifying at trial.  The inquiry was deemed necessary in this case because a deputy sheriff had given the defendant a religious brochure which stated that confession was the only way to avoid an “eternity in a prison called hell:”

 

… [A] criminal defendant has the right to testify in his or her own defense guaranteed by the Federal and State Constitutions … .  This fundamental "right to testify is 'personal' and . . . can be waived only by the defendant," and any such waiver must be knowingly, voluntarily and intelligently made … .  To be sure, the "trial court does not have a general obligation to sua sponte ascertain if the defendant's failure to testify was a voluntary and intelligent waiver of his [or her] right" … .  However, "in exceptional, narrowly defined circumstances, judicial interjection through a direct colloquy with the defendant may be required to ensure that the defendant's right to testify is protected" … . 

 

We believe that such colloquy was critically necessary here.  The privilege against self-incrimination – and, by extension, the decision whether to waive that privilege and testify – "is not concerned 'with moral and psychological pressures to confess emanating from sources other than official coercion'" … .  But here the deputy's actions in foisting the religious tract upon defendant constituted an effort by law enforcement to "interfere[] with the free and unhampered decision of [defendant] to testify" … .  Moreover, looking at "factors beyond the government's control to determine whether [defendant's] decision not to testify resulted from the government's conduct," defendant allegedly knew "chapter and verse" the biblical quotations in the tract, making defense counsel concerned that he was peculiarly susceptible to the exhortation made… . People v Robles, 105103, 3rd Dept 1-16-14

 

 

CRIMINAL LAW/CONSTITUTIONAL LAW/EVIDENCE

 

Motion to Vacate a Conviction Can Be Based Upon a Freestanding Claim of Actual Innocence---All Reliable Evidence, Even If Previously Barred at Trial or After Prior Motions to Vacate, May Be Presented at the Hearing

 

In a comprehensive opinion by Justice Hinds-Radix, the Second Department determined that a CPL 440 motion to vacate a conviction can be based upon a “freestanding claim of actual innocence.”  The defendant, who had brought several unsuccessful 440 motions, was deemed to have presented sufficient evidence of actual innocence to justify a hearing, in which all reliable evidence previously barred could be presented and considered:

 

The Due Process Clause in the New York State Constitution provides "greater protection than its federal counterpart as construed by the Supreme Court" … . Since a person who has not committed any crime has a liberty interest in remaining free from punishment, the conviction or incarceration of a guiltless person, which deprives that person of freedom of movement and freedom from punishment and violates elementary fairness, runs afoul of the Due Process Clause of the New York Constitution (see NY Const, art I, § 6… ). Moreover, because punishing an actually innocent person is inherently disproportionate to the acts committed by that person, such punishment also violates the provision of the New York Constitution which prohibits cruel and unusual punishments (see NY Const, art I, § 5…). Thus, we conclude that a freestanding claim of actual innocence may be addressed pursuant to CPL 440.10(1)(h), which provides for vacating a judgment which was obtained in violation of an accused's constitutional rights… . * * *

 

At the hearing, all reliable evidence, including evidence not admissible at trial based upon a procedural bar---such as the failure to name certain alibi witnesses in the alibi notice---should be admitted … . If the defendant establishes his actual innocence by clear and convincing evidence, the indictment should be dismissed pursuant to CPL 440.10(4), which authorizes that disposition where appropriate. There is no need to empanel another jury to consider the defendant's guilt where the trial court has determined, after a hearing, that no juror, acting reasonably, would find the defendant guilty beyond a reasonable doubt.  People v Hamilton, 2014 NY Slip Op 00238, 2nd Dept 1-15-14