CRIMINAL LAW

 

Victim’s Mother Should Not Have Been Allowed to Speak at Sentencing Because Defendant Convicted Only of Possession of Weapon, Not the Killing of the Victim/Failure to Inform Defendant of Pending Criminal Charges Against Prosecution Witnesses Not Error

 

The Third Department vacated defendant’s sentence because the victim’s mother was allowed to speak at sentencing.  Defendant was convicted only of possession of a weapon and not the killing of the victim.  The Third Department also noted that the failure to inform the defendant of pending charges against three prosecution witnesses was not a Rosario violation and was not otherwise required under the facts:

 

…[W]e find that County  Court abused  its discretion in allowing [the victim’s] mother  to speak at the sentencing hearing. There is no victim of the crime upon which defendant was convicted, as criminal possession of a weapon in the third degree requires only the possession of a firearm by  a person previously convicted of a crime … . Here, defendant's conviction upon this charge was supported by evidence wholly separate from the circumstances surrounding [the victim’s] death, as [a witness] testified that he had provided the handgun to defendant the day prior.It was thus error to allow the mother to give a statement in which she described defendant as a "killer" who "got away with murder." Moreover, we find merit in defendant's contention, though not preserved …, that despite promising it would not consider the mother's statement in imposing sentence, County Court may have considered the homicide charges when it sentenced him to the statutory maximum prison sentence of 3½ to 7 years.    As defendant contends, from a review of the sentencing transcript, it appears that the court improperly attributed guilt for [the victim’s] death to him.  *  *  *

 

The People's failure to inform defendant of criminal charges pending against three prosecution witnesses does not constitute a Rosario violation … .  We  further note that two of these individuals did not  testify at trial…, and  disclosure regarding the disorderly conduct charge against the third …was not statutorily required, as the People were unaware  of that recent charge at the time of trial (see CPL 240.45 [1] [c];…).    Contrary to defendant's contention, it is not reasonable under the circumstances here presented to impute knowledge of that pending charge to the entire District Attorney's office.  People v Sheppard, 103880/104958, 3rd Dept, 6-20-13

 

 

County Court Had Jurisdiction to Correct 1999 Sentence Which Did Not Include Period of Post-Release Supervision

 

The Third Department noted that County Court had jurisdiction to correct defendant’s 1999 sentence, which did not include post-release supervision:

 

Defendant's contention that County Court lacked jurisdiction due to an alleged unreasonable delay in correcting the sentence is without merit.    A delay in resentencing pursuant to Correction Law § 601-d is "not jurisdictional in nature and do[es] not deprive the court of the authority to correct an illegal sentence and resentence a defendant to a term of incarceration that includes a period of postrelease supervision"… . Furthermore, because defendant had not completed serving his initial sentence, the sentence was still subject to correction without invoking the protection against double jeopardy… .  People v Siler, 105042, 3rd Dept, 6-20-13

 

 

Irrelevant Information in Presentence Report Should Not Have Been Allowed In “Dangerous Sex Offender” Proceeding

 

In affirming a jury finding of mental abnormality and a finding that respondent was a dangerous sex offender requiring confinement, the First Department noted that the state’s expert should not have been allowed to testify about respondent’s admission in a presentence report that he was in the vicinity of a rape with which he was never charged:

The court erred in permitting the State expert to testify regarding respondent's admission, in a presentence report, that he was in the vicinity when a rape, with which he was never charged, was committed. While this statement was sufficiently reliable to show that respondent was in the vicinity of the rape, it was not reliable for the purpose of showing that he committed the rape…. Nevertheless, this error was harmless given the expert's reliance on two brutal sexual assaults to which respondent pleaded guilty and a third that he admitted committing, and given the court's appropriate limiting instructions, which served to dispel any prejudice …. Matter of State of New York v Charada T, 2013 NY Slip Op 04548, 1st Dept, 6-18-13

 

 

Motion to Withdraw Plea Should Have Been Granted

 

In determining defendant’s motion to withdraw his plea (which had been based in part upon the disposition of another indictment subsequently dismissed) should have been granted, the Second Department wrote:

 

Defendant pleaded guilty as part of a joint disposition of this case and another case, upon which he would be receiving a concurrent sentence of one year. However, the other indictment was dismissed, with finality, before defendant's sentencing. The court should have granted defendant's plea withdrawal motion, made on the ground that the plea had been induced by a promise that was ultimately unfulfilled…. The record establishes that defendant's plea was induced in large part by the court's specific representation that defendant was resolving two pending prosecutions. "It simply cannot be said on this record that defendant . . . would have pleaded guilty absent this assurance" …. As the dismissal of the other indictment amounted to a fundamental change in a "condition that induced [defendant's] admission of guilt" …, he was entitled to withdraw his plea ….  People v Bennett, 2013 NY Slip Op 04714, 1st Dept, 6-20-13

 

 

Error to Impeach Defendant Re: Failure to Offer Exculpatory Version to Police/ Error to Comment on Defendant’s Post-Arrest Silence (Harmless However)

 

The First Department determined it was error for County Court to have allowed the prosecutor to impeach defendant with his failure to present to the police an exculpatory version of events and to allow the prosecutor to comment upon defendant’s post-arrest silence:

 

County Court erred in allowing the prosecution, over the defendant’s objection, to impeach the defendant’s testimony with his failure to come forward to the police with an exculpatory version of the events, and in allowing the People to comment upon the defendant’s post-arrest silence in summation ….  People v Copp, 2013 NY Slip Op 04619, 2nd Dept, 6-19-13

 

 

“Mere Nervousness” Does Not Justify Police Inquiry/ More than “Mere Nervousness” in this Case

 

In finding that the police inquiry was proper because it was prompted by more than merely the defendant’s nervousness (which would not have been sufficient for a suspicion of criminality), the First Department explained:

 

The Court of Appeals' decision in People v Garcia (20 NY3d 317 [2012]) does not dictate a different result. In Garcia defendant's vehicle was pulled over because of a defective brake light. Aside from the faulty light, there was no indication of criminality by the occupants of the car; they merely appeared nervous and acted "furtive[ly]" by "stiffen[ing] up and "looking behind" upon being pulled over (id. at 320). The Court of Appeals agreed with this Court that a defendant's nervousness, without more, is not enough to give rise to a founded suspicion of criminality that allows for a common-law inquiry. Here, however, apart from seeming nervous, defendant was observed in a drug-prone neighborhood pulling what appeared to be an aluminum foil packet out of his pocket. The arresting officer suspected that the aluminum foil contained cocaine because cocaine is often packaged in that manner. And, unlike Garcia, where the alleged "furtive" behavior was consistent with nervousness over being pulled over, here, defendant's attempt to block the … officers' view of the shirt pocket in which he had placed the aluminum packet was consistent with someone in possession of a controlled substance attempting to avoid apprehension. These circumstances were sufficient to give the police the requisite founded suspicion to approach and question defendant.  People v Loretta, 2013 NY Slip Op 04562, 1st Dept, 6-18-13

 

 

 

CRIMINAL LAW/EVIDENCE

 

Anonymous 911 Call Admitted Under Excited Utterance and Present Sense Impression Hearsay Exceptions

 

The Second Department determined a 911 recording of an anonymous caller was admissible under the excited utterance and present sense impression exceptions to the hearsay rule and the admission of the recording did not violate defendant’s right to confrontation:

 

The recording satisfied the excited utterance exception to the hearsay rule, since it evidenced that the caller was under the influence of the excitement of the incident and lacked the reflective capacity essential for fabrication…. Contrary to the defendant's contention, the recording was also properly admissible as a present sense impression, since the caller's statements were sufficiently contemporaneous … and were corroborated by the evidence adduced at trial…. Additionally, the admission of the recording did not violate the defendant's right to confrontation. The call was nontestimonial in nature, since its primary purpose was to obtain an emergency response to the shooting….  People v Dockery, 2013 NY Slip Op 04621, 2nd Dept, 6-19-13

 

 

Text Messages Authenticated Because They “Made No Sense” Unless Defendant Sent Them

 

The Second Department determined the content of text messages was admissible (i.e., authenticated) because the messages “made no sense” unless sent by the defendant:

 

…[T]he text messages from the defendant to the complainant were properly admitted into evidence. Since the content of the text messages "made no sense unless [they were] sent by defendant" …, the text messages themselves were sufficient to authenticate that they were sent by the defendant … .  People v Green, 2013 NY slip Op 04623, 2nd Dept, 6-19-13

 

 

 

CIVIL PROCEDURE

 

Preclusion Proper Remedy for Failure to Comply with Discovery Deadlines and Requests

 

The Second Department determined the failure to comply with discovery deadlines and provide good faith responses to discovery requests justified the preclusion of evidence:

 

“The failure to comply with deadlines and provide good-faith responses to discovery demands impairs the efficient functioning of the courts and the adjudication of claims’”… . The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court…. Here, the plaintiff made a clear showing that the defendants failed to comply with the compliance conference order …. Which required them to respond to certain requests made in the plaintiff’s supplemental notice of demand for production of documents …, since the defendants did not provide meaningful responses to those demands (see CPLR 3126[3];…). Further, the defendants’ willful and contumacious conduct in failing to meaningfully respond to those demands was reasonably inferred from the defendants’ repeated failures to respond to the plaintiff’s demands and the court’s compliance conference order without a reasonable excuse…. Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s cross motion which was pursuant to CPLR 3126 to preclude the defendants from presenting evidence at trial with respect to those items … .  HR Prince, Inc v Elite Envtl Sys, Inc, 2013 NY Slip Op 04576, 2nd Dept, 6-19-13

 

 

Dismissal of Complaint “With Prejudice” Did Not Require Dismissal of Second Complaint

 

Even though a complaint had ostensibly been dismissed “with prejudice” because the plaintiff did not have the capacity to sue, a subsequent complaint brought after plaintiff gained capacity to sue could not be dismissed pursuant to res judicata or collateral estoppel:

 

The record makes clear that, notwithstanding its denomination of the dismissal of the first action as "with prejudice," the Supreme Court did not intend to preclude the plaintiff from commencing a new action once he acquired the capacity to sue, which he purportedly lacked when he commenced the first action (see CPLR 3211[a][3]). Consequently, as the Supreme Court stated in the order appealed from, the dismissal of the first action was not a final judgment on the merits and it was not preclusive, under either res judicata or collateral estoppel, of claims or issues in the present action …. Thus, the court properly granted that branch of the plaintiff's motion which was to dismiss the affirmative defenses of res judicata and collateral estoppel. Brown v Lutheran Med Ctr, 2013 NY Slip Op 04568, 2nd Dept, 6-19-13

 

 

 

ELECTION LAW

 

Town Law Applies to Fire District Election

 

The Second Department explained that the Town Law, not the Election Law, controls in a fire district election.  The Town Law, unlike the Election Law, does not require that a voter whose registration status cannot be immediately verified provide an affidavit he or she is duly registered to vote. The issue was important because the fire commissioner election was won by one vote and the voter whose status could not be immediately verified did not provide an affidavit:

 

Town Law § 175-a requires voters in fire district elections to be duly registered to vote (see Town Law § 175-a). However, Town Law § 175-a does not require a voter whose voter registration status cannot be immediately verified to provide an affidavit stating that he or she is duly registered to vote. The Election Law, in contrast, does contain such a requirement (see Election Law § 8-302[e][ii]). Specific Election Law provisions, however, do not apply to fire district elections unless the Town Law makes them specifically applicable …. The Town Law does not reference Election Law § 8-302 in its provisions governing fire district elections, and, as such, the affidavit required under that statute was not required here.  Matter of Buechele v Fairview Fire Dist, 2013 NY Slip Op 04603, 2nd Dept, 6-19-13