Eye On Eagle

Most Recently Decided Cases

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June 8, 2017
People v. Jamar Bethune
Issue before the Court: Whether Supreme Court abused its discretion by resettling the trial transcript on the People’s motion without holding a reconstruction hearing? 
 
Held: No. “Although better practices could have been observed,” Supreme Court did not abuse its discretion because the court could reliably determine what took place without the necessity for a hearing.  The information available to the trial judge included the reporter’s certification of the corrected transcript, other undisputed portions of the transcript, and the repeated failure of any party to object to what would have been prominent misstatements of the law. 
 
CAL Observes: In separate concurrences, Judge Fahey expressed a preference for reconstruction hearings to avoid any appearance of impropriety; Judge Garcia disagreed. 
Decided June 8, 2017
People v. Lawrence P. Frumusa
Issue before the Court: Whether evidence of a contempt order issued in a civil action involving the same funds the defendant was criminal charged with stealing was subject to Molineux’s exclusionary rule? 
 
Held: No. To be subject to Molineux’s exclusionary rule, the evidence sought to be admitted must concern “a separate crime or bad act committed by the defendant.”  When the evidence is relevant to the very same crime for which the defendant is on trial, it does not raise the danger that the jury will draw an improper inference of propensity, the reason behind the Molineux rule in the first place. As the evidence was otherwise relevant to establishing the defendant’s larcenous intent, the evidence was admissible. Further, the probative value outweighed the prejudice from its admission, although a limiting instruction (not request by the defendant) would have been in order to minimize any potential prejudice. 
 
CAL Observes: This unanimous opinion addresses a question that does not arise very often. The prosecution itself had sought admission of this evidence as an exception to the Molineux rule, and the lower court decided it on that basis.  However, the Court held that such misclassification did not prevent it from concluding that the evidence was not Molineux, because the arguments concerning the probative value and the prejudicial effect would be the same.   
Decided June 8, 2017
People v. Nirun Honghirun
Issue before the Court: Whether trial counsel was ineffective for failing to object to “prompt outcry” testimony from a child sexual abuse victim?
 
Held: No, the trial record made it clear that defense counsel, reasonably believing that the evidence would come in anyway, chose to affirmatively exploit the inconsistencies in the victim’s outcries to portray the victim as a troubled teen.
 
CAL Observes: This unanimous decision appears to be correct, in that defense counsel did make clear during the trial that this would be his strategy.  No new ground covered here.
Decided June 6, 2017
People v. Miguel Viruet
Issue before the Court: Whether the defense was entitled to an adverse inference charge based on the unjustifiable police destruction of a video surveillance tape of the crime scene?
 
Held: Yes, since the defense had requested production of the video in a timely fashion and the evidence was reasonably likely to be of material importance.  Under those circumstances, the instruction was mandatory, not discretionary.  However, the error was harmless given the overwhelming evidence that the defendant was the shooter.  In an opinion penned by Judge Wilson, he and Judge Stein dissented.  They agreed that there was error, but disputed that the evidence that defendant, as opposed to his look-alike brother, was the shooter, was overwhelming.  
 
CAL Observes: Once again, the new guy, Wilson, is showing he’s not shy in taking on his more experienced colleagues.  His factual analysis of the evidence is pretty convincing, enough so that Judge Stein joined him.  In another era, not that long ago, his reasoning would have carried the day.
Decided June 1, 2017
People v. Shawn J. Silvertson
Issue before the Court: Whether there were exigent circumstances to justify the police entry into the defendant’s home without a warrant?
 
Held: A four-judge majority ducked the question.  Whether there were “exigent circumstances” is the quintessential “mixed question of law and fact.”  Since there was support in the record for the Appellate Division’s finding of exigent circumstances, the issue was beyond the power of the Court of Appeals to review.  The majority said of Judge Rivera’s lengthy dissent that it resolved inferences in favor of the defendant, a no-no in the review of facts by the Court of Appeals.
 
CAL Observes: Judge Rivera, in her dissent, disputed that she was doing anything but analyzing the facts as presented below.   Joined in the dissent by Judge Stein, she recounts the evidence indicating the complete lack of any exigency leading up to the police entry.  Her narrative is pretty convincing, but the “mixed question” hurdle is, in general,  hard to overcome, even if unevenly applied.
Decided May 4, 2017
People v. Andrew R. Bushey
Issue before the Court: Can a  police officer run a license plate number through a government database to check for outstanding violations?
 
Held: Such a check, even without any suspicion of wrongdoing is proper and does not involve a search; any information obtained indicating violations provides probable cause to stop the driver.
 
CAL Observes: While the Court recognized the “possibilities of database error and police officer abuse” relating to license plate checks, such concerns did not “create a reasonable expectation of privacy where none existed.”  The Court left open the door to future challenges where an officer goes “outside the proper bounds of a license plate search,” suggesting that if an officer’s actions could be deemed unreasonable or illegally motivated a defendant could challenge them on constitutional grounds. 
Decided May 4, 2017
People v. John Stone
Issue before the Court: Admission of hearsay implying non-testifying witness identified defendant as the perpetrator.
 
Held: Error harmless as the testimony, which was susceptible to another interpretation, had been struck by the trial court and the jurors properly instructed to disregard that testimony.
 
CAL Observes:
An unfortunate loss for the defendant, but the broader implications of the decision bode well for the defense bar in general.  The decision calls into grave doubt the typical script used by prosecutors in questioning cops about how they came to focus on a particular person in their investigation.  In case after case, we have seen prosecutors establish that a cop investigated an incident, spoke to a witness, and, after speaking to that witness, sought to arrest the defendant.  The implication of that testimony is that the witness, whose actual statement to the cop is not elicited, pointed the finger at the defendant.  Prosecutors defend that line of questioning by pointing out that no hearsay was elicited and that the cop merely testified to his own actions.  The Court of Appeals has firmly rejected that approach:  “A potential inference from this testimony is that the [witness] identified defendant as a suspect and, under this theory, defendant was deprived of his right to confront this witness.”  Regardless of whether an alternative interpretation of that testimony could be found, the danger of the implied hearsay violates the confrontation clause.
 
The decision was also good as to preservation.  The Court found (in a footnote) that not just a hearsay error but a constitutional (confrontation clause) error was preserved when counsel objected to the “whole implication” of that detective’s testimony suggesting that the witness had identified defendant as the assailant.
 
Unfortunately, despite analyzing the error under the constitutional harmless error standard (“no reasonable possibility that the error might have contributed to defendant’s conviction”), the Court found no harm.
Decided May 2, 2017
People v. Everett B. McMillan
 
 
Decided April 4, 2017
People v. Leonard Williams
Issue before the Court: In both cases, the propriety of the prosecutor’s use of PowerPoint presentations on summation.
 
Held: PowerPoint presentations are fine if used properly.
 
CAL Observes: These two cases, both affirming convictions albeit on different grounds, are a must-read for trial attorneys –or at least the Cliff Notes versions.  They collectively set forth the guiding principles for the use of PowerPoint presentations on summation, to wit:
 
1.  If it would be OK to say it during summation, it’s OK to put it on a PowerPoint slide.
 
2.  Superimposed commentary on trial exhibits must accurately reflect the trial evidence, or fair inferences to be drawn therefrom.
 
3. Blatant emotional appeals are not OK.
 
Decided April 4, 2017
People v. Trevor Anderson
Issue before the Court: In both cases, the propriety of the prosecutor’s use of PowerPoint presentations on summation.
 
Held: PowerPoint presentations are fine if used properly.
 
CAL Observes: These two cases, both affirming convictions albeit on different grounds, are a must-read for trial attorneys –or at least the Cliff Notes versions.  They collectively set forth the guiding principles for the use of PowerPoint presentations on summation, to wit:
 
1.  If it would be OK to say it during summation, it’s OK to put it on a PowerPoint slide.
 
2.  Superimposed commentary on trial exhibits must accurately reflect the trial evidence, or fair inferences to be drawn therefrom.
 
3. Blatant emotional appeals are not OK.
 
Decided March 30, 2017
People v. Carlos Valentin
Issue before the Court: Whether, in its justification charge, the trial court properly gave an initial aggressor instruction.
 
Held: By a 4 to 3 vote:  Yes, because there was a scintilla of evidence that the defendant, although not the first one to use force, was the first one to use deadly physical force.
 
CAL Observes: For an accurate explanation of the law on the reasonable use of deadly physical force vis-vis the  “initial aggressor” exception, one should read Judge Stein’s dissent.  The majority decision unwittingly muddles the issue.  How can the jury find the defendant to be the initial aggressor simply because they find, in hindsight, that he was the first one to use deadly physical force, when they are also told that the defendant may use deadly physical force if he reasonably believes that deadly physical force is about to be used on him–even if, in hindsight, that turns out not to be the case?  In reality, the ”initial aggressor” instruction is appropriate where it was the defendant “who started it”–i.e., was the first one to use offensive physical force.  In the right case, the majority’s mis-analysis will really screw up the verdict.
 
Decided March 30, 2017
People v. Yusuf Sparks
Decided March 30, 2017
People v. William Cook
Issue before the Court: In SORA risk assessment instruments (RAI), what constitutes “grooming” of the victim under risk factor 7.
 
Held: “Grooming” is present only if, at the time when the relationship is established, it was for the purpose of sexual victimization.
 
CAL Observes: The SORA RAI treats defendants as posing a greater risk for recidivism if the victim was a stranger to the defendant.  The exception is where the victim knew the defendant, but only because the defendant established the relationship for the very purpose of later victimization.  This is “grooming” -- the “scoutmaster” scenario.  What constitutes grooming has been the subject of conflicting decisions.  Here the defendant victimized the children of old family friends.  The Court held that, since the defendant knew these children since infancy through a long-time association with their parents, the children were neither strangers, nor were they “groomed.”  The relationship preceded the plan for predation.  This is a very nice distinction, but in SORA risk assessments, the points really count.
 
Decided March 30, 2017
People v. Ryan P. Brahney
Issue before the Court: Brahney was convicted of intentional second degree murder (Penal Law § 125.25(1), and two counts of burglary in the first degree, based on (1) causing physical injury (Penal Law § 140.30(2)), and (2) using or threatening to use a dangerous instrument (Penal Law § 140.30(3)). While the parties agreed that the burglary sentences needed to run concurrently, they disagreed about whether the burglary sentences could run consecutive to the murder sentence. At issue was whether the People had met their burden of proving identifiable facts establishing that defendant committed the burglary through acts separate and distinct from the murder.
 
Held: The Court unanimously ruled that, because the People “offer[ed] evidence of the existence of separate and distinct acts[s]” distinguishing the burglary from the murder, consecutive sentences could be imposed. 
 
CAL Observes: The Court’s decision is another in the progression of cases extending the circumstances under which a court has the discretion to impose consecutive sentences for crimes with overlapping elements and facts. The precise question here was whether the evidence could be parsed to show that defendant physically stabbed the victim in two places, once upstairs and then again downstairs. Even though the factfinder did not need to make that distinction when it found defendant guilty of the two offenses, the Court concluded that the People had met their burden of proving separate acts: the trial evidence could be read to show that defendant used a dangerous instrument to cause physical injury to the victim upstairs, and dragged her downstairs and murdered her in a separate and distinct act. 
 
Judge Fahey had warned against permitting sentencing judges to parse the evidence to create separate acts last November in his dissent in People v. Couser, 28 N.Y.3d 368, 380-81, cautioning that it could lead to disproportionately high sentences. 
 
This case demonstrates the point: because the People succeeded in fashioning a scenario from the evidence where there was an initial non-lethal stabbing upstairs, followed by the lethal stabbing downstairs, defendant’s sentence was doubled (the 25-year determinate sentence on the burglary permissibly ran consecutive to the 25-year-to-life indeterminate sentence on the murder). Some might suggest that this raises a question about the propriety of the court’s exercise of sentencing discretion, and not the legality of the aggregate sentence. But others, the author included, would contend that permitting sentencing judges to rely on scenarios not passed on by the factfinder to multiply a defendant’s sentence is not an exercise of discretion authorized or intended by the Penal Law. 
Decided March 28, 2017
People v. Charles Smith
Issue before the Court: Does a defendant “display what appears to be a firearm” (Rob 1- PL 160.15[4]) by telling the victim that he has a gun, while his hand is placed, immobile, under his sweatshirt?
 
Held: Yes, under People v. Lopez (73 N.Y.2d 214).  While a verbal threat is in and of itself insufficient, such threat accompanied by a hand consciously concealed in clothing is sufficient.  A defendant could ask for the affirmative defense to Rob 1 (not a loaded and operable firearm), but the defendant did not do so here.
 
CAL Observes: What is notable here is the lone, impassioned dissent from Judge Wilson.  Exhaustively analyzing the legislative history, he states that the legislature never could have intended that a defendant displaying no object whatsoever could be guilty of first-degree robbery. “[A]dherence to the clear intent of the legislature and Governor is more important than pursuing our mistaken course [of case law precedent] to its end.”  Powerful stuff from the new guy.
 
Decided March 28, 2017
People v. Thomas Jackson
Issue before the Court: What does it take for defense counsel to preserve a Sandoval error?
 
Held: Defense counsel, by not objecting to the court’s Sandoval ruling after the court had issued it, failed to preserve the issue.
 
CAL Observes: The Marquess of Queensberry rules on the proper preservation of Sandoval issues seems to befuddle trial attorneys, even if they are not that complicated.  Typically, the court will hold a Sandoval hearing around the start of voir dire.  The prosecutor lays out what prior convictions/bad acts she want to cross-examine the defendant about; defense counsel objects to what the prosecutor proposes; and then the court issues a ruling, usually a compromise.  To preserve any Sandoval error in the ruling, defense counsel then has to object–meaning after the ruling.  And specifically state at that time what was wrong with the ruling.  What defense counsel said prior to the ruling doesn’t count.  (There is an exception to that preservation requirement, but that will not be explained here, as defense lawyers should not rely on it.  Object after the ruling.)
 
Decided March 28, 2017
People v. Richard M. Leonard
Issue before the Court: (1) Whether the IAC 440.10 motion should have been denied without a hearing because the trial counsel was deceased.  (2) Whether counsel was ineffective because he failed to utilize prior inconsistent statements on cross, and failed to request a limiting instruction on Molineux evidence.  (3) Whether the trial court improperly allowed evidence of defendant’s prior uncharged sexual abuse of the victim, to establish intent and motive. 
Held: The victim’s testimony in this sex abuse case, about a prior uncharged sexual abuse against her by the defendant, could not be admitted to prove intent or motive under Molineux, nor was it admissible as “necessary background information.” The Court instead found the evidence improperly established propensity, and to the extent it was probative, it was unduly prejudicial. 
 
CAL Observes: This was probably one of Judge Abdus-Salaam’s last decisions, and a welcome one for defendants. The Court made the common-sense finding that the crime itself suggested both the motive and intent of sexual gratification.  Moreover, the Court rejected the prosecution’s attempt to bring in what is really propensity evidence under the guise of  “necessary background information,” and rejected the evidence, on balance, as more prejudicial than probative, even if technically relevant. 
 
This was a consolidated direct and CPL §440.10 appeal. Because the Court decided the case based upon the direct appeal Molineux issue, it left for another day the issue of whether it was error to deny a CPL §440.10 without a hearing because the trial attorney charged with ineffective assistance of counsel is now deceased.
Decided March 23, 2017
People v. Elmer Castillo, People v. Brian Degraffenreid
Decided March 23, 2017
People v. Julio Peguero-Sanchez
Decided March 23, 2017
People v. Darrion B. Freeman
Decided March 23, 2017
People v. Matthew A. Slocum
Decided February 14, 2017
People v. Gregory Vining
Issue before the Court: Whether the court erred in allowing evidence, as an adopted admission, a recording of a defendant’s call to the complainant while he was incarcerated, during which defendant was silent in the face of complainant’s accusation of physical abuse.
 
Held: The trial court did not abuse its discretion as a matter of law in admitting a phone call between defendant and his ex-girlfriend as an adoptive admission even though defendant was incarcerated at the time of the recorded call.  
 
CAL Observes: Acknowledging that a defendant’s silence and evasiveness is of limited probative value, the Court, nonetheless, upheld that trial court’s decision to admit the evidence under the hearsay exception of adoptive admission since the “defendant heard and understood the victim’s accusations against him.”  In affirming the conviction, the majority focused on the fact that the defendant was not completely silent during the call and that the jury heard of evidence of the “rocky relationship” between them and received a “thorough limiting instruction.”  Fortunately, Vining can be distinguished on these facts from cases where defendants are truly silent in the face of accusations or where the court provides no, or a weak, limiting instruction. 
 
As to the fact that the call was made and recorded while incarcerated, the Court, again, declined to equate this to a defendant’s silence in the face of interrogation.  Reiterating its position in People v. Johnson, 27 N.Y.3d 199, 206 (2016), the Court determined that where defendant was on notice that his calls were recorded and was not induced into making the phone call, it could not be considered the functional equivalent of the product of an interrogation.  Unfortunately, this Court is continuing with the trend of protecting the admission of Riker’s calls – evidence that trial prosecutors frequently introduce at trial against defendants.
 
In dissent, Judge Rivera, joined by Chief Judge DiFiore, argued that the majority’s decision contravenes the “law and principles of fairness because any inference of an admission from an inmate’s silence during these recorded conversations is presumptively unsound.”  Judge Rivera’s dissent has a nice explanation of the relevant law pertaining to a defendant’s pre-trial silence and the risks involved in admitting such evidence in the prosecution’s case-in-chief.  The primary focus of the dissent, however, is on the catch-22 that defendants now face as a result of the majority’s opinion.  Quoting the prosecution’s brief in Johnson, Rivera explains that “[t]o avoid the use of incriminating evidence, a defendant should ‘refrain from discussing the case over the telephone with anyone but [defense counsel].’”  However, under the majority’s decision, even if the defendant comports with this advice and is silent during the course of the phone call, that can still be used as an adoptive admission.  Again, there seems to be a factual dispute between the majority and the dissent as to whether the defendant was, in fact, silent.  As a result, it seems as though there is still an open question as to the admissibility of Riker’s calls where there is complete pre-trial silence.
Decided February 14, 2017
People v. Michael Pena
Decided February 14, 2017
People v. Kevin Fisher
Issue Before the Court: Where a defendant pleads guilty to hindering prosecution based on rendering assistance on an underlying crime, does the co-defendant’s acquittal render the defendant innocent and his admission of guilt a legal nullity?   
 
Held: In a unanimous decision authored by Judge Rivera, the Court answers “no.” Hindering prosecution does not require proof that the assisted person was ever arrested or convicted, and the People may satisfy their burden by relying on the defendant’s admissions that the assisted person committed the crime.  Further, cases involving conspiracy, criminal facilitation, and accomplice liability, all hold that criminality of one defendant is not required to establish criminality of another.  Defendant’s rule would have “the perverse result of treating as innocent a defendant who stymies an investigation . . . because those efforts lead to the assisted person’s acquittal.” 
 
CAL Observes: This Court of Appeals has not yet confronted whether post-conviction claims of actual innocence in plea cases are legally cognizable on 440 motions. (The Second Department has said they are.)  Fisher on the one hand reaffirms that pre-sentencing claims of actual innocence can support a motion to withdraw a guilty and are subject to an abuse of discretion standard of review, but also reiterates that a plea “marks the end of a criminal case, not a gateway to further litigation.” No reading the tea leaves here to see which way this Court will go if confronted with that issue.        
Decided February 16, 2017
People v. Darren Staton
Decided February 16, 2017
People v. Fernando Maldonado
People v. Maldonado, 28 N.Y.3d 1173 (Decided February 16, 2017)
 
Issue Before the Court
 
Whether the evidence was sufficient to establish grand larceny of real property by false pretenses and possession of a forged instrument, based on Mr. Maldonado’s execution and filing of a deed to a building that he did not own and attempted first-degree grand larceny, based on his pursuit of a loan secured by a mortgage on the same building.  The Appellate Division, Second Department held that proof of possession of a forged instrument was sufficient, even though Mr. Maldonado used his own name, because he signed the deed “as the owner of the corporation, thereby falsely assuming the identity of the owner and ostensible maker of the deed.” People v. Maldonado, 119 A.D.3d 610 (2d Dep’t 2014). Most of the other sufficiency arguments were rejected as unpreserved. The Second Department stated, “the evidence . . . was legally sufficient . . . in light of the elements of the crime as charged without objection by the defendant.” Id.  
 
The Second Department rejected appellant’s allegation of ineffective assistance of trial counsel. Id.  Review of the Court of Appeals’ briefs reveals that trial counsel made a C.P.L. §330.30 motion and asserted that he had been ineffective for not recognizing that the People had failed to prove an element of grand larceny by false representations: that the actual owner of the property relied on Mr. Maldonado’s false representations. See Penal Law § 155.42; People v. Churchill, 47 N.Y.2d 151 (1979). See Appellant’s Court of Appeals Brief, pp. 48-49. The trial court, however,  refused to appoint new counsel and denied the motion to set aside the verdict.
 
In the Court of Appeals, but not in the Appellate Division, Respondent also argued that the defense failed to preserve the argument, discussed above, that the deed was not forged. See Appellant’s Court of Appeals’ Brief, p. 57; Respondent’s Court of Appeals’ brief, pp.  79-80.
 
Mr. Maldonado re-asserted the sufficiency arguments in the Court of Appeals and tried arguing that the C.P.L. § 330.30 motion was sufficient to preserve the argument. In the alternative, he argued that counsel was ineffective.
 
Holding
 
Without any explanation, the Court of Appeals held that “to the extent preserved, defendant’s legal sufficiency challenges to this trial record lack merit.”  Equally terse was the Court’s grounds for reversal: “However, we hold that counsel’s overall performance fell below the ‘meaningful representation’ standard and defendant is entitled to a new trial (see People v. Berroa, 99 NY3d 134 [2002]; see also People v. Baldi, 54 NY2d 134, 147 [1981]).”
 
CAL Observes
 
Apparently, the Court of Appeals did not want to advertise the reasons for this reversal. Maybe that’s because it’s become almost de riguer to argue that counsel’s failure to object amounts to ineffective assistance. Equally rare is the reversal on direct appeal – without requiring a C.P.L. 440 motion to explore possible reasons for counsel’s inaction.  While it does not appear that the C.P.L. § 330.30 motion preserved the sufficiency claim, it may be that trial counsel’s mea culpa made the 440 motion unnecessary.  It will be interesting to see how future litigation reconciles this holding with People v. Giles, 24 N.Y.3d 1066 (2014), where the Court held that ineffective-assistance-of-counsel facts alleged in a C.P.L. § 330.30 motion were not part of the record for purposes of a direct appeal.
Decided February 16, 2017
People v. Hao Lin
Issue Before the Court: Whether a police officer who observed—but did not administer—a Breathalyzer test could testify in lieu of the administering officer at trial consistent with the Confrontation Clause.
 
Held: Yes. The Court found that because the testifying officer was recounting his own observations and conclusions, which he was able to advance because of his own experience with administering breath tests, Hao Lin’s right to confrontation was not violated.
 
CAL Observes: In this first application of People v. John, the Court is continuing to flesh out the contours of the Confrontation Clause as it applies to forensic testing. The apparent rule is to allow testimony from the non-primary analyst where that eventual witness was physically present to supervise or observe the testing procedure, and had some familiarity with that protocol. Here, that meant that the non-administering officer who had been present for the Breathalyzer examination, which he witnessed occur, could testify. The Court did not appear overly troubled by the officer not having personally observed or performed verification of the simulator solution, a step in the testing process, dismissing any concerns by citing to the officer’s testimony about what this step looked like in the normal course. 
Decided February 9, 2017
People v. William Flanagan
Decided February 9, 2017
People v. Zachary T. Guerin
Decided February 9, 2017
People v. Rafael Then
Decided December 15, 2016
People v. Natalio Pastor
Decided December 20, 2016
People v. Jeffrey Bryant
Issue before the Court: Whether the First Department erred in holding the appeal waiver invalid prior to reducing the defendant’s sentence, as excessive, in the interest of justice.
 
Held: The appeal waiver was valid, so the sentence, which the First Department found to be excessive, was reinstated.
 
CAL Observes: This is a highly unfortunate and misguided decision on so many levels.  Where to begin?  With the fact that such a wide-ranging decision, which will negatively impact on tens of thousands of cases and defendants going forward, was decided on SSM?  No.  While that is true, let’s begin elsewhere: 
 
1.  The Court blithely overlooked without comment its own holding in People v. Maracle, 19 N.Y.3d 925, that an appeal waiver of a “conviction” does not waive the right to appeal excessive sentence.  A judgment consists of the conviction (either guilty plea or verdict) and the sentence.  The Court’s overlooking its own recent case law is indefensible.
 
2.  Tired of year after year of sloppy waiver allocutions, the First Department has made great strides recently in forcing trial-level judges to clean up their acts, by not upholding dodgy waiver allocutions.  The Court of Appeals has now set this initiative back, probably irreparably.  Nice work!
 
3.  Although inconsistent in its approach to appeal waivers over the years, the Court had seemed to have evolved from its original approach, which was to uphold waiver allocutions as long as the words “appeal” and “waiver” appeared in the same sentence.  With this decision, trial judges, who generally loathe appeals from their guilty pleas, can go back to treating appeal waivers casually.
 
4.  The decision, with its casual approach to appeal waivers, indulges in the many fictions that trial level practitioners and appeals courts indulge in.  Among them: (1) that trial lawyers are actually conversant with the distinction between issues automatically forfeited by a guilty plea and those that ordinarily survive the guilty plea but are covered by the waiver, and know which issues survive even a valid appeal waiver; they are clueless in this area so cannot explain it to their client and don’t even try. (2) that defendants actually understand any explanation that a defense lawyer might give to them about an appeal waiver; why should the defense lawyer be able to explain it any better than the judge?  They can’t and don’t. “[A]lso as a part of this you are waiving your right to appeal?”  Great explanation.  (3) That waivers are actually a tool that defense lawyers can use to get a better plea deal from the prosecutor.  This is a theoretical construct only.  The reality is that prosecutors offer pleas because they can’t take all or most of the cases to trial.  Prosecutors extract waivers because they can; and defense lawyers accept them because they have no choice but to agree if there’s going to be any offer at all.  (4) that the waiver is an agreement between two equally situated parties, rather than a provision in a contact of adhesion that is forced upon the defendant by judges and prosecutors.  (5) that anyone actually reads the written waiver form.   There are many more such fictions, but you get the idea,
 
5.  And finally, this decision, so carelessly tossed off, will impact negatively on tens of thousands of cases going forward, for years to come and indefinitely.  Almost all cases are resolved by guilty plea, and in most courtrooms judges, as a matter of policy,  will not accept a guilty plea unless it includes an appeal waiver.  After all, when sausage is being made, who wants anyone looking over their shoulder to see how it’s being made? Not the sausage-makers.  Nobody except the person who has to eat it.  Which in this analogy is the defendant.
 
Decided December 15, 2016
People v. Alfred Stewart
Issue before the Court: Whether defense counsel’s waiver of Mr. Stewart’s presence at re-sentencing was valid.
 
Held: No, there was no valid waiver of Mr. Stewart’s right to be present. Last year, the Court of Appeals held that a defendant can waive his right to be present at sentencing in a felony case. In People v. Rossborough, 27 N.Y.3d 485 (2016), the defendant personally, in the presence of counsel, asked the judge to excuse him from attending the upcoming sentencing proceeding.  That explicit waiver was later upheld.  The Court of Appeals, however, did not extend Rossborough in People v. Stewart, 2016 WL 7235304 (Dec, 2016), where the defense lawyer informed the judge, at a resentencing proceeding, that the defendant did not wish to be produced from prison for the resentencing proceeding.  See Letter Brief, People v. Stewart, 2016 WL 7442497, *5 (July 7, 2016). This waiver by counsel was ineffective because “there [was] no record of any form of express waiver by defendant himself, whether oral or in writing.”
 
CAL Observes: The Court of Appeals noted that the Stewart case did not “present” what the Court termed to be a different issue being raised by the People: “that an inmate who wishes to waive his right to be present at resentencing should not be required to convey that waiver by personal appearance in court, and that defendant properly waived his right to be present by having his counsel speak on his behalf.” 
 
Despite the Court’s hesitation, it seems that Stewart does stand for the proposition that the lawyer cannot waive the defendant’s presence at resentencing [or sentencing] unless the record includes the defendant’s personal oral or written waiver of his or her right to be present. Otherwise, counsel cannot waive defendant’s presence at sentencing or resentencing.
Decided December 15, 2016
People v. Cristian Morales
 
Issue: Whether it is improper for an intermediate appellate court to dismiss a direct appeal on the grounds that appellant has been deported, where the appealed convictions were not the bases of the deportation, where appellant has failed to have any contact with appellate counsel, and where both dismissal and nondismissal issues were raised in the appellant’s brief.
 
Held:The Court unanimously ruled that an intermediate appellate court may not dismiss a direct appeal because the defendant has been involuntarily deported: it does not matter whether the criminal conviction was the basis of the defendant’s deportation, or whether the issues raised on appeal issues that would result in dismissal or retrial. 
 
CAL Observes: The Court’s decision extends its prior decisions in Ventura and People v Harrison (Serrano), 27 NY3d 281, 284 (2016), which had granted deported defendants significant rights to pursue their appeals in New York’s intermediate appellate courts. Most significantly, the decision rejects respondent’s argument that an intermediate appellate court has the authority to dismiss an appeal when the defendant has effectively abandoned his or her appeal. The Court’s decision recognizes that, even when a defendant has done no more than file an application for the assignment of counsel, an attorney can pursue an appeal on behalf of the client without further contact, and may even raise issues that would seem to require the defendant’s presence at further proceedings. 
Decided December 22, 2016
People v. James Miller
Issue facing the Court: Whether the trial court abused its discretion in precluding any questioning about the prospective jurors’ abilities to disregard any statements that they concluded were involuntary.
 
 
Held: The trial court abused its discretion in prohibiting defense counsel from questioning prospective jurors with respect to their views on involuntary confessions.  This blanket prohibition violated C.P.L. §270.15 which provides that each party will be afforded a fair opportunity to question prospective jurors as to any unexplored matter affecting their qualifications.  
 
CAL Observes:  This decision is unusual in that the Court recognized that the scope of questioning of prospective jurors lies within the sound discretion of the trial court.  It is rare for an appellate court to find an abuse of discretion as a matter of law.  The Court of Appeals relied on its earlier decision, People v. Steward, 17 N.Y.3d 104 (2011), holding that the imposition of a five minute limitation on questioning violated C.P.L. §270.25.  
 
The decision here was based on the total preclusion of any mention of the statements evidence which ultimately proved important to the prosecution’s case.  The Court of Appeals recognized that any concerns about speculation regarding the statements could have been cured by the trial judge instructing the jurors that it was not clear whether any statement evidence would be introduced and instructing on the legal standards regarding involuntary statements.  
Decided December 22, 2016
People v. Joseph Bridgeforth
 
Issue Before the Court: Is color a separate classification from race for Batson purposes? 
 
Held: Yes.   A movant may meet the Batson prima facie burden by demonstrating that the perempted potential jurors have a similar skin color (for example, dark-colored, as was alleged by the movant in Bridgeforth). 
 
CAL Observes: While the ultimate holding that color provides a basis for a Batson challenge separate from race is doctrinally sound and certainly welcome, the Court’s application here of the “mootness” doctrine in the Batson context is wrong and could prove troublesome for defendants down the road.  Judge Garcia, in concurrence, calls out the majority on this point. 
 
It had seemingly been well-settled by the Court’s prior decision in People v. Hecker, 15 N.Y.3d 625, 652 (2010), that a court will not review whether the Batson movant met its prima facie burden “[o]nce a party has placed its race-neutral reasons on the record,” e.g., once the step 2 protocol is undertaken.  Once that happens, the step one showing “becomes moot.”  Id.
 
The majority, contending that Hecker must be read in conjunction with other authority, held that an ultimate determination on discrimination (a step 3 showing) is required by the trial court before the issue becomes moot.  However, it seems to us that  Hecker’s holding was clear and  served the larger purpose of ensuring that courts could not evade the ultimate question of discrimination.  By reformulating the mootness doctrine, the majority positioned itself to revisit the question it clearly wanted to reach —  whether the defendants alleged a cognizable group based on color —  but at the expense of appellate Batson challenges going forward.   If the Batson protocols are incomplete (as they often are), and left at the step 2 stage, defendants will need to establish to the reviewing court’s satisfaction the threshold issue of whether a prima facie case existed in the first place. 
 
To that end, we urge practitioners to remember the third step: — challenge the prosecution’s race, color, or gender neutral reasons as pretextual by showing (1) that similarly situated jurors who are not in the cognizable group you’ve identified were not challenged. Use the information you’ve culled about prospective jurors from that round or prior rounds; or (2) that the challenged juror would be expected to favor law enforcement (e.g. was a crime victim, has law
enforcement ties, gave prosecution-friendly answers).  And remember that, under Hecker, the strength of your prima facie case can inform your step 3 argument — a strong step 1 showing supports that the prosecutor intentionally discriminated. 
Decided December 22, 2016
People v. Steven Finkelstein
Decided December 20, 2016
People v. Prince Clark
Issue: Ineffective assistance of counsel—namely, whether defense counsel was ineffective for (1) pursuing a misidentification defense exclusively where his client did not want to raise justification or extreme emotional disturbance but the jury asked questions about whether Mr. Clark’s actions were justified, and (2) not objecting to courtroom closure.
 
Held: Counsel was not ineffective on either count. As to the first issue, the court found counsel’s decision to “vigorously pursue[] the defense defendant approved rather than the one defendant rejected outright” was constitutionally sound, as it had the potential for an all-out acquittal.
 
Because the state of the law at the time of Mr. Clark’s trial did not require a court to explore alternatives before excluding family members because of limited seating, under a straightforward application of ineffectiveness standards, the Court found that there was no problem with counsel’s failure to object to the courtroom closure.
 
CAL Observes: The Court appears to take pains to limit this case to its facts. Specifically, the Court seemed swayed because “defendant’s chosen defense theory was [not] self destructive and [did not] ensure[] conviction,” and because a misidentification defense, if successful, would have ensured acquittal on counts relating to the decedent (whom Clark was charged with murdering), and a separate complainant (whom he was charged with assaulting as the victim fled). By contrast, the justification defense would have relieved him only of the second-degree murder conviction.
 
Further, the Court seemed persuaded by the fact that counsel had exercised professional judgment in consultation with his client, taking this outside the realm of cases such as People v. Colville in which a defendant and his attorney are at odds over a decision that is delegated exclusively to either one or the other.
Decided December 20, 2016
People v. Patrick Morgan
Decided December 15, 2016
People v. Rodolfo Hernandez
Decided December 22, 2016
People v. Brandon Warrington
Issue before the Court: Whether the trial court abused its discretion by not granting a challenge for cause to a juror who initially stated that she could not be fair in a case involving the murder of a child, but then unequivocally stated she could be fair.
 
Held: No.  
 
CAL Observes: Because of the unique set of facts in this case, it has limited precedential value.  During voir dire, two jurors, numbers 123 and 383 initially stated that they could not be fair in a case involving the murder of a child.  The judge first spoke to number 123, asking if he could set aside this particular bias.  The juror could not promise to do so and was excused.  The court then turned its attention to number 383, specifically incorporating by reference the questions it had put to number 383.  This time, 383 unequivocally said she could be fair.  Defense counsel, though conceding the juror had been rehabilitated, nonetheless challenged the juror for cause, which challenge was denied.   A careless reader might think that the case stands for the proposition that a juror who has indicated a specific bias can be rehabilitated merely by promising not to convict if she has a reasonable doubt.  That is specifically not what the Court held.  Obviously a juror’s promise not to convict a defendant she believes is not guilty does not resolve the question of whether the juror’s bias will slant her evaluation, in the first instance,  of the evidence presented to her.
Decided December 20, 2016
People v. Anthony Perkins
Issue facing the Court: (1) Whether the lineup was unduly suggestive where only one lineup subject (defendant) had a dreadlock hairstyle, described by some but not all of the identifying witnesses; (2) the denial of an adverse inference charge where the People failed to preserve the tape of a 911 call; (3) the failure of the trial judge to make factual findings before denying the defense Batson challenge at step 3. 
 
Held: There was no record support for the hearing court’s finding that the lineups were not suggestive where Perkins was the only one with visible dreadlocks.    While several Appellate Divisions had applied the rule that a defendant’s distinctive feature does not render a lineup suggestive unless the feature was a  prominent aspect of the witness’s description, the Court of Appeals rejected this rule.  The Court found that a bright line rule in this area would be  unworkable and unwise.  A witness’s prior description is but one factor to consider in determining whether a lineup creates a substantial likelihood that the defendant would be singled out for identification.
 
CAL Observes: Another notable win for the defense in a case that would ordinarily be affirmed because it presented a mixed question of law and fact beyond the Court of Appeals review powers.  Only by finding no record support for the lower court’s finding could the Court reach the issue.  The rule adopted by the Court is contrary to the one recognized by the Second Circuit in Raheem v. Kelly, 257 F.3d 122 (2d Cir. 2001) which found that a lineup can be suggestive as to one witness but not another based on the descriptions each had provided.  The rule announced by the Court of Appeals emphasized the need for flexibility in determining whether an identification procedure was suggestive. 
Decided December 22, 2016
People v. Robert Patterson
Issue: Whether the subscriber information was hearsay, because it was being admitted for its truth. 
 
Held: The majority of the Court (all except Judge Rivera), concluded that the subscriber information had not been admitted for its truth: the evidence was not offered to prove that defendant had activated the prepaid cell phone account, but to show the jury that “it was not coincidental that someone – regardless of who – provided pedigree information associated with defendant in activating the cell phone” Slip Op. at 12. The subscriber information, by the majority’s reasoning, was not admitted for its truth, “but for the jury to consider as a piece of the puzzle ... that the date of birth given by defendant when arrested matched that in the subscriber information, that the address given in the subscriber information was associated with defendant in police databases, and that defendant had the name Darnell tattooed on his hand -- that gave rise to an inference that defendant was the user of the phone, although perhaps not the subscriber...” Slip Op. at 12-13.
 
Judge Rivera, concurring in the result, would have held that the subscriber information would have been admissible for the non-hearsay purpose of completing the narrative. 
 
CAL Observes: The majority weakens the definition of hearsay, without any stated justification A party can offer a statement for its truth, so long as its truth is used circumstantially and not as direct evidence, the Court ruled. Here, for example, the fact that the subscriber had given defendant’s address was not offered for the truth of the fact that the subscriber lived at that address, but, by the Court’s reckoning, merely as a puzzle piece. The address connected defendant to the phone, because it was one that was associated with defendant in police databases. The Court appears to close its eyes to the fact that the address is only a “piece of the puzzle” if it’s true and offered for its truth: i.e., it only connects defendant to the phone if the phone’s subscriber lived at that address. 
Decided December 22, 2016
People v. Immanuel Flowers
Decided December 20, 2016
People v. James Brown
Issue before the Court: CPL 30.30 - Where the People file an off-calendar certificate of readiness (COR), and then come in on the next adjourn date and say they are not ready, under what circumstances is the delay between the COR and the adjourn date chargeable to the People?
 
Held: There is a presumption that the People’s statement of readiness is accurate.  It is the defendant’s burden to show that the COR was illusory; however, it is the People’s obligation, either contemporaneously or in response to a 30.30 motion, to explain for the record why the People were ready at the time of the COR but became unready as of the following adjourn date.
 
CAL Observes: This was an issue left open in People v. Sibbles, 22 NY3d 1174.  The Brown Court chose the analysis most favorable to the People, i.e., the presumption of accuracy.  But Brown makes clear what was implicit in Sibbles– that the People have the obligation to explain the reason for the change in readiness in these circumstances.   Where the People pull this maneuver, defense counsel should immediately and on the record ask the People to provide an explanation for the change in readiness, and then argue that the COR was “illusory.”
Decided November 22, 2016
People v. Jose Aviles
Issue: Whether Mr. Aviles, whose principal language was Spanish, suffered due process and equal protection violations because, upon his arrest for intoxicated driving, he was not offered a coordination test due to a perceived language barrier.
 
Held: No. In evaluating the equal protection claim, the majority applied rational-basis review, finding that the NYPD’s decision not to offer coordination tests to non-English speakers passed constitutional muster. It held that because there was no facial discrimination—as the rule classified based on language, not national origin—nor intentional discrimination, no heightened scrutiny was required. Valid rationales for declining to offer the test with instructions in translation, according to the Court, included “ensuring the reliability of coordination tests,” that “translation of instructions cannot be delegated to a translator” who lacks the “requisite training,” and the financial burden of “employing translation services.” This was so even though Mr. Aviles blew a 0.06, a value below the legal limit, on his breathalyzer test; passing the coordination tests could thus further exculpate him in what was already a questionable case.
 
The Court also rejected Mr. Aviles’s due process claim, finding no police duty to assist defendants in gathering potentially exculpatory evidence, nor that the testing procedure was judicial, quasi-judicial, or administrative such that he had a right to an interpreter.
 
The dissent objected that language could be a proxy for national origin or race, thus requiring a more searching standard of review. Under that standard or even rational-basis review, the proffered rationales could not justify a policy that “potentially places certain individuals in a better position than others to defend against criminal charges.” Judge Rivera also criticized the assumption that the coordination test instructions could not be easily translated in light of “technological advances and increased human resources that address linguistic needs”—especially in a multilingual city such as New York. In fact, she noted, the NYPD regularly employs translation services in a number of contexts, including administering breathalyzers.
 
CAL Observes: Though the court rejected a facial challenge to the NYPD policy, it left open the possibility that an individual defendant could mount an as-applied challenge upon demonstrating that in his or her case ethnicity was the reason for denying access to the test. 
 
Decided November 22, 2016
People v. Phillip Couser
Issues before the Court: This case involved two appeals. In the first appeal, the Court decided whether P.L. § 70.25 (2) permits consecutive sentences for robbery and attempted robbery, in a gunpoint robbery involving 5 victims where only one robbery was completed when one victim threw her purse on the floor and the defendant physically moved it toward his co-defendant. 
 
In the second appeal, the Court decided the sufficiency of an Alford plea, and whether it was ineffective assistance of counsel for counsel to advise the defendant that his sentence after conviction for first-degree attempted murder could run consecutive to his other sentences.
 
Held: Defendant lost in both appeals. 
 
CAL Observes: (as to appeal #1) As Judge Fahey’s dissent in the first appeal noted, under the majority’s interpretation of P.L. § 70.25 (2), if a defendant yells at five people to throw down their wallets in the course of a robbery, picking each one up is now a separate crime warranting consecutive sentences. This reasoning, Judge Fahey believes, will lead to “irrational parsing of the actions of defendants,” disproportionately high sentences, and is contrary to the Court’s precedents under People v. Laureano, 87 N.Y.2d 640, 643 (1996) and People v. Ramirez, 89 N.Y.2d 444 (1996). He may be right about that.
 
In this case, the defendant and 3 others were tried for the gunpoint robbery of 5 people. During the robbery, when the victims were told to get on the ground, one woman dropped her purse. The defendant pushed the purse over to his co-defendant to retrieve. The defendant’s gun was also discharged, grazing the head of another victim. After the crime, the handgun was found in nearby bushes.
 
Defendant was found guilty of a completed robbery (involving the purse), 4 attempted robberies (including the gunshot victim) and weapon possession charges, and a mistrial was declared on the first-degree attempted murder conviction (the later subject of the Alford plea). After the trial court imposed all the robbery sentences consecutively, the Appellate Division modified the sentences so that all the attempted robberies ran concurrently as “a single act constituting one offense” under P.L. § 70.25 (2). But the Appellate Division found that the completed robbery sentence could still be imposed consecutively. The Court of Appeals affirmed.
 
The Court of Appeals majority reasoned that under P.L. § 70.25 (2), the statutory definitions of the offenses must be examined to  determine if the “actus reus” element is, by definition, the same for both offenses, or if the actus reus for one offense is, by definition, a material element of the second offense.  If the answer is yes, the sentences must be concurrent. The focus is on the actus reas – the physical acts – rather than the mens rea.
 
According to the Court, although overlapping, a completed robbery is different from an attempted robbery, so consecutive sentences are permitted. Here, a purse was taken from one victim when the defendant kicked it to over his companion. That was a distinct act from the gun waving that was used only as to the attempted robberies, even though it was all a single criminal transaction. The Court analogized this case to People v. Ramirez, 89 N.Y.2d 444 (1996), a robbery where a security guard was shot, and sentences were imposed consecutively.
 
In his dissent, joined by Judge Rivera and Judge Stein “in so much of the opinion as relates to the appeal herein,” Judge Fahey accused the majority of creating a “new rule” that misinterpreted the Court’s precedents. Since the defendant had neither committed a separate act nor a separate threat of force in taking the purse, the sentences should be concurrent.
 
Judge Fahey found that the majority misconstrued Ramirez, where the shooting of the security guard was found to be a separate act from the robbery. The sentences were concurrent for the different items taken (a gun from the guards and money from their truck), which is more analogous to the facts here.  
 
Here, the purse victim did not testify that the defendant got her purse through any additional act. He just kicked it on the ground after she put it there – a mere “asportation of property.” Under the Laureano and Ramirez analysis, the relevant actus reus was the same for the completed and attempted robberies. If the majority was right, in Ramirez there would have been consecutive sentences for the gun and money, gotten from two different spots. Under Ramirez, separate acts against particular victims may warrant consecutive sentences, but not a single act against multiple victims. Mere bodily movements to pick something up is not enough.
 
Fahey would have modified the sentences so that the robbery and attempted robberies ran concurrently.
Decided November 21, 2016
People v. Earl Jones
Decided November 21, 2016
People v. Wilson Tardi
Decided November 21, 2016
People v. Harvert Stephens
Decided November 21, 2016
People v. Matthew A. Davis
Decided November 17, 2016
People v. Clinton Johnson
Decided November 17, 2016
People v. Eugene Francis
Decided November 17, 2016
People v. Timothy Brewer
Decided November 17, 2016
People v. John Gayden
Decided November 1, 2016
People v. Herman Bank, People v. Herman H. Bank
Issue before the Court:  Defendant’s attorney erroneously informed defendant that consecutive sentences were mandated, when in fact consecutive sentences for the deaths of two individuals in the vehicular manslaughter case could not be imposed.  Believing that the prosecution would never come down to a reasonable sentence from the 10-to-30 maximum term and being told that he would not get offered less than 6-to-18 years, the defendant did not engage in plea negotiations.  After being convicted at trial and sentenced to the actual maximum term of 5-to-15 years, defendant filed a C.P.L. § 440.10 motion alleged ineffective assistance.  Defendant would have taken a plea to a 4-to-12 year term had that been offered.
 
Held:  No IAC because the prosecutor insisted that she would not have made any plea offer.  Even under New York’s “meaningful representation” standard, the Court found that defendant failed because “the prejudice component” of an IAC claim, while “not necessarily indispensable,” was not established.
 
CAL Observes: Trying to recreate the past to decide what would have happened had counsel not been ineffective is always a bit of a fool’s errand.  The Court of Appeals has repeatedly announced that it need not engage in such tomfoolery because it employs the more defendant friendly “meaningful representation” standard.  Yet again, though, the Court shows that what it means by “meaningful representation” is really nothing different than prejudice.  Finding “no possibility” that the prosecution would have offered a lower sentence and no “proof that the court would have extended an offer to a reduced sentence,” the Court essentially employed the Stickland standard and nothing more.  True “meaningful representation” would require counsel to know his client’s sentencing exposure and to put forth facts and arguments to negotiate for a sentence less than the maximum regardless of the expected outcome.  With 99% of case being plea bargained, can there ever be a case where no amount of effort by an attorney would offer the possibility of a sentence other than the maximum allowable term?  The prosecution’s post-hoc rationalization otherwise would not appear to be incontrovertible proof.
Decided November 1, 2016
People v. Lyxon Chery
Issue:  Whether it was error to allow the prosecution to use defendant's selective silence, while making a spontaneous post-detention statement to the police, to impeach his trial testimony.
 
Held:  Impeachment through cross-examination was permissible in order to challenge the credibility of defendant's trial testimony as to the events that had transpired at the scene.
 
CAL Observes:  The Court has consistently upheld that “absent unusual circumstances” impeachment of a defendant due to factual omissions is prohibited.  People v. Williams, 25 N.Y.3d 185 (2015).  Prior to Chery, the Court had only found that only two factual scenarios presented those “unusual circumstances” to warrant impeachment of a defendant through selective silence. See, e.g., People v. Savage, 50 N.Y.2d 673 (1980). While the Court acknowledged the factual differences between Savage (a post-Miranda warning incriminating statement where exculpatory facts were omitted) and Chery (a pre-Miranda, spontaneous exculpatory statement where additional exculpatory facts were not included), the Court nonetheless broadened this well-established rule.  Citing the defendant’s decision to provide some explanation of what happened at the scene, the Court determined that it was unnatural to have omitted the “significantly more favorable version of events to which he testified at trial.”  The Court’s lack of consideration of the surrounding factual circumstances that prohibited the defendant from providing a full statement is troubling and may prove to be very harmful for defendants who fail to mention the most mitigating facts for any number of innocent reasons.  Moreover, trial courts will now be tasked with deciding what constitutes a “significantly more favorable version of events” to justify impeachment by omission.
Decided November 1, 2016
People v. Luis A. Pabon
Decided November 1, 2016
People v. Keith Fagan; People v. Roni Smith
Issue Before the Court: Can a Catu-defective plea be utilized to enhance a sentence for a subsequent crime? 
 
Held:  No (or, rather, maybe, see our last paragraph below). Since Catu does not apply retroactively in enhanced sentence proceedings, a plea pre-dating Catu, in which the court failed to apprise the defendant of post-release supervision cannot be the subject of a predicate-constitutional challenge simply on that ground.  More specifically, although the law since at least People v. Ford, 86 N.Y.2d 397, 403 (1995), required that defendants be informed of the direct consequences of a guilty plea, which would include the post-release supervision component of a sentence, the law before Catu, the Court held, “also required that defects in plea allocution could not result in a reversal absent a showing of prejudice.”  To the extent Catu provided for automatic vacatur, it was a new rule under federal and state retroactivity principles.  (The Court assumed that Catu presented a violation of the United States Constitution.)
 
Judge DiFiore concurred, finding that the sentence each defendant originally received was exactly what he bargained for, a sentence without PRS, and therefore he had no predicate challenge at all.  
 
Judge Rivera dissented.  The Court’s retroactivity conclusion, Judge Rivera observed, was not supported by the case law, which clearly showed that Catu “was based on due process guarantees already well established in both federal and statue jurisprudence.” Judge Rivera also noted the inherent unfairness of sentence enhancements that would, in effect, require these defendants  to “suffer[] anew” from the deprivation of due process which infected the prior conviction. 
 
CAL Observes: We consider the majority’s holding outcome determinative and legally unsound. As Judge Rivera concluded, prior law from the Court itself did not support it.  The Court’s lengthy retroactivity analysis is just cover; Catu should never have been found to be a new rule in the first place, in any respect, at all.  Nor did the Court seemingly consider that upholding the predicate challenge would affect only a narrow group of defendants, or that mandatory persistent sentences with a life term — the type of sentence most likely to invite such predicate challenge — are among those that should withstand the most exacting scrutiny.  
 
That said, the Court’s decision doesn’t even accomplish what the Court intended: slamming the door on Catu-based predicate challenges.   In recognizing that the “Ford” aspect of Catu has long existed but that a showing of  prejudice was required before Catu, the Court put the defense bar on notice of the constitutional challenge that can be mounted: where the lower court failed to advise the defendant of post-release supervision in a predicate plea, the predicate can be assailed on the ground that the court failed to fulfill its duty under Ford to advise the defendant about the direct consequences of that plea, and that the defendant would not have entered the plea had he known about PRS – a difficult, but not insurmountable showing to make, and one that should satisfy the prejudice showing that the law, according to the Court, required at the time of the plea.    
Decided October 25, 2016
People v. Alexis Ocasio
Decided October 25, 2016
People v. Antonio Aragon
Decided October 25, 2016
People v. Lerio Guerrero
Issue before the Court: Mr. Guerrero asked the Court to find that the indictment was invalid when the Grand Jury initially issued a John Doe indictment using only a DNA sample from the crime scene and, years later, the Court granted a motion to amend the indictment to add Mr. Guerrero’s name after the Medical Examiner reported a DNA match. The District Attorney responded that Mr. Guerrero had forfeited his right to raise this challenge when he pleaded guilty.
 
Held: Avoiding the approaching Statute-of-Limitations deadline [formerly set at five years in first-degree rape prosecutions under C.P.L. § 30.10], the Grand Jury handed down a “John Doe” indictment naming the accused only by a DNA profile developed from the crime scene. Six years later, investigators recovered Mr. Guerrero’s DNA from a cigarette butt and the medical examiner’s office reported a match.  The People did not re-submit the case to the Grand Jury. Instead, they simply moved to amend the John Doe indictment by adding Mr. Guerrero’s name, based on the alleged DNA match. Defendant opposed amendment and moved to dismiss the indictment, arguing that the Grand Jury never reviewed competent evidence linking him to the DNA sample taken from the crime scene. After losing his legal arguments, Mr. Guerrero pled guilty.
 
Finding that the guilty plea forfeited appellate review, the Court of Appeals refused to decide the merits of Mr. Guerrero’s claims. The Court had previously held that a guilty plea forfeits review of a statute-of-limitations claim. People v. Parilla, 8 N.Y.3d 654 (2007).  The majority characterized Mr. Guerrero’s legal challenge as an attack on the sufficiency of evidence at the Grand Jury - an issue which is also forfeited by a guilty plea. See People v. Iannone, 45 N.Y.2d 589 (1978). Since the Grand Jury properly charged Mr. Guerrero with a crime, albeit by identifying him solely by a DNA profile, there was no “jurisdictional” defect that would survive a guilty plea. The indictment amendment also was found not to be jurisdictional because the court “simply added defendant’s name to the indictment.” The guilty plea therefore forfeited that claim, as well. 
 
The Court of Appeals did affirm the denial of a constitutional speedy trial claim. Though that issue survived the guilty plea [and the defendant’s appeal waiver], the Court affirmed the First Department’s holding that the 13-year prosecution delay violated neither the Sixth Amendment nor C.P.L. § 30.20. See People v. Guerrero, 126 A.D.3d 613 (1st Dept. 2005) (First Department found delay excused by “practical inability” to prosecute and lack of prejudice).
 
CAL Observes: By disposing of most of the issues on forfeiture grounds, the Court left open some difficult issues in this case identified by Judge Rivera, in her dissent. First, Judge Rivera took issue with the non-jurisdictional characterization of Mr. Guerrero’s claim. “Rather, he claims that substitution of his name for the DNA numerical identifier requires the exercise of the Grand Jury’s accusatory power and cannot be accomplished on submission to the trial court by a motion to amend. The defect concerns who may accuse the defendant based on evidence of a match to the inculpatory DNA, and therefore goes to the essential role of the Grand Jury and the ‘integrity of the process.’” 
 
Judge Rivera went on to hold, on the merits, that the court below erred in granting the motion to amend. “This is not a typical change of name by which one moniker is replaced with another.”
 
Since the majority did not reach the merits, the amendment of a John Doe indictment, without resubmitting to a Grand Jury, remains an open question.
 
 
Decided October 25, 2016
People v. Ronel Joseph
Issue before the Court:  Does a defendant burglarize a “dwelling” when he breaks into the basement of a building with a bodega on the ground floor and six floors of residential apartments above?  Defendant was observed on the bodega’s surveillance entering the basement through the cellar door located on the sidewalk.  The basement had no other access and served as a storage area for the bodega.  Defendant was arrested when the bodega employee locked the cellar door, trapping the defendant, and called the cops.
 
Held:  Not a burglary of a dwelling, at least in this circumstance.  In 2014, the COA revived a long-dormant exception to the rule that a “dwelling” is a building some portion of which is usually occupied by someone sleeping there at night.  That exception exists where the building is “large” and the burglary occurs in an area “remote and inaccessible from the living quarters.”  People v. McCray, 23 N.Y.3d 621, 625 (2014) (quoting Quinn v. People, 71 N.Y. 561 (1878)).  In those circumstances, “the burglar neither comes nor readily can come near to anyone’s living quarters,” and thus the enhanced penalty for burglarizing a dwelling does not apply.  Id. at 628.
 
Here, although the area burglarized was remote (the basement was wholly inaccessible to the residents and not connected with the area of the building where people resided), the building could not be considered large.  The Court weighed whether both prongs of the test needed to exist for the McCray exception to apply.  Finding that “the size of the building may be a factor” but was not “a requirement” under McCray, the Court, in a memorandum opinion, held that the defendant could not be convicted of burglarizing a dwelling.  Judge Stein, in a 10-page dissent, disagreed.
 
CAL Observes: Good facts make good law.  The petty thief endangered no person in their home by going in the bodega’s basement and thus the case presented none of the dangers that the enhanced penalty for burglarizing a dwelling was meant to address.  Under Quinn though, the defense had an uphill battle because the Court had affirmed a conviction where a shop underneath and not connected to the residences above had been burglarized.  Under McCray, the defense failed the “large” building aspect of the test.  Yet, the defense prevailed even with the current pro-prosecution Court.  No longer a bright line rule, there is room for arguing against a finding of a dwelling with the right facts.
 
A curiosity of the case is the Court’s use of a memorandum decision.  The majority wrote seven pages and the dissent wrote ten additional pages.  That would not seem like the kind of dispute to be resolved in a memorandum.
 
 
Decided October 25, 2016
People v. Charles K. Wilson
Decided October 25, 2016
People v. Nnamdi Clarke
Issues before the Court: CPL 30.30 - (1) When are the People charged with delay for DNA testing, in that they failed to exercise due diligence? 
 
Held: The delay in DNA testing was not justified by due diligence.  
 
CAL Observes: These due diligence showings are fact-specific.  However, in Clarke the DA’s approach to getting DNA results was lackadaisical, both in terms of getting a sample from the defendant and in getting OCME, the testing agency,  to cough up the results--as they should have done.  The People cannot just get away with saying they are not responsible for what the OCME does. Anytime there is any significant delay by the People in either asking for a sample from the defendant or getting back the testing results, counsel should argue lack of due diligence.
Decided October 25, 2016
People v. Steven Henderson
Issues before the Court: CPL 30.30 - Was counsel ineffective for failing to include, in his 30.30 motion, an argument that the delay in DNA testing showed lack of due diligence?
 
Held: Since a single faux pas rarely proves ineffectiveness, and the appellate defense lawyer’s claims about DNA testing protocols were outside the record, no ineffectiveness was demonstrated on appeal, and a 440 would be necessary to show it.
 
CAL Observes: These due diligence showings are fact-specific.  However, in Clarke the DA’s approach to getting DNA results was lackadaisical, both in terms of getting a sample from the defendant and in getting OCME, the testing agency,  to cough up the results--as they should have done.  The People cannot just get away with saying they are not responsible for what the OCME does. Anytime there is any significant delay by the People in either asking for a sample from the defendant or getting back the testing results, counsel should argue lack of due diligence.
Decided October 20, 2016
People v. Iquan Wiggs
Decided October 20, 2016
People v. Larry Brown
Decided October 20, 2016
People v. Roy S. Kangas
Decided October 20, 2016
People v. James M. Roshia, Jr
Decided October 20, 2016
People v. Louis Speaks
Decided October 20, 2016
People v. Dru Allard
Issue:  Whether a defendant must file a reply identifying any “legal or factual impediments” to properly preserve a C.P.L. 30.30 speedy trial claim for appellate review.
 
Held:  Although defendants are encouraged to file replies to ensure that the appropriate legal and factual arguments are raised, they are not necessary to preserve a claim on appeal “where, as here, the defendant properly requests and receives a hearing and, at that hearing, his arguments are raised and developed.”
 
CAL Observes:  Prior to Allard, appellate courts had been finding statutory speedy trial claims unpreserved due to defense counsel’s failure to file a reply to the prosecution’s opposition.  Citing the “basic rules of preservation,” the Allard Court now puts to rest the notion that a reply is necessary if the legal and factual arguments are set forth in the original motion papers or at a 30.30 hearing.  Also significant is the Court’s analysis of the procedures set forth in C.P.L. 210.45 for dismissal motions in the context of speedy trial claims.  Pursuant to C.P.L. 210.45, trial courts must conduct hearings on 30.30 motions unless the prosecution “‘conclusively refuted’ defendant’s motion ‘by unquestionable documentary proof.’”  This is a high threshold for prosecutors to meet.  While it was common practice for courts to summarily deny 30.30 motions, it will be interesting to see whether Allard tempers this practice.  Moreover, in addition to requesting dismissal of the indictment as a remedy on appeal, Allard provides appellants with an alternative remedy when raising 30.30 claims:  a remand for a hearing on the 30.30 motion.
 
Decided September 13, 2016
People v. David Bookman
Decided September 8, 2016
People v. Ricardo Ricketts
Decided August 25, 2016
People v. Cliffton Fletcher
Decided June 30, 2016
People v. Sparkle Daniel
Decided June 30, 2016
People v. Nadine Panton
Decided June 28, 2016
People v. Charles Smith, Tyler Ingram, and Isma McGhee
Issue before the Court: Whether a defendant has a right to cross-examine police officers about their involvement in misconduct underlying claims of false arrest and excessive force as prior bad acts bearing on the officers’ credibility.
 
Held: Law enforcement witnesses should be treated in the same manner as any other witness for purposes of cross-examination: provided defense counsel has a good faith basis for the inquiry, and subject to the court’s discretion to fix reasonable limits, the defense may questions police officers about their involvement in actions underlying lawsuits brought against them by others they have arrested.  
 
CAL Observes:
In a ruling that traced the constitutional foundations for cross-examination and the right to impeach a witness by inquiring about facts relevant to their general credibility, the Court led with the unremarkable proposition that police witnesses should be subject to the same impeachment rules as other witnesses. The Court ruled that a police witness’s prior bad acts can be an appropriate subject for cross-examination even if they have not been proven in a judicial proceeding: allegations alone can present a good-faith basis for questioning. The Court read “bad act” broadly, pointing out that prior bad acts need not be criminal or immoral to be relevant, so long as they suggest that the officer might place her individual self interest above that of society. Participation in false arrests, unauthorized searches, excessive force, and fabrication of evidence, were all appropriate grounds for inquiry. While defense counsel in each of the cases had sought permission in advance to question the officers with a formal proffer, the Court found no such application necessary; holding instead that defense counsel could simply have begun questionning the officers and, upon objection, made a showing of relevance and good faith. _ N.Y.3d _, 2016 WL 3494644 at n.2. In each case, the Court found error: although a court has discretion to place reasonable limits on cross-examination to avoid confusing the issues and misleading the jury, the courts here had abused their discretion by forbidding the line of inquiry entirely. While the Court found the error harmless in Smith and McGhee, it reversed in Ingram.
Decided June 28, 2016
People v. Dennis J. Sincerbeaux
Issue before the Court: Was it appropriate for the SORA court to assess 30 points under risk factor 9 of the Risk Assessment Instrument [“RAI”], based on the defendant’s prior misdemeanor conviction for endangering the welfare of a child, even though that prior crime did not involve any allegations of sexual misconduct?
 
Held: Yes.  The Board of Examiners of Sex Offenders has established that offenders are scored 30 points under risk factor 9 if they have a prior conviction for endangering the welfare of a child. In contrast, other  non-sex prior misdemeanor convictions generally requires assessment of only five points under risk factor 9.  The Guidelines state that “the Board decided to treat endangering the welfare of a child as if it were a sex crime because it generally involves sexual misconduct, especially when it is part of a plea bargained disposition. Where a review of the record indicates that there was no such misconduct, a departure may be warranted.” 
 
The Court of Appeals held that assessing 30 points, therefore, was mandatory. However, the SORA court had the discretion to downwardly depart based on the non-sexual nature of the prior crime.  In Sincerbeaux, the SORA court’s refusal to depart downward was not error as a matter of law [“abuse of discretion”] because the record in Sincerbeaux showed other aggravating factors that weighed against a downward departure. The complainant in the most recent case – the conviction that was the subject of the SORA hearing –  had “experienced years of physical abuse as a result of her attempts to refuse defendant’s sexual advances.”
 
CAL Observes:
In People v. Knox, 12 N.Y.3d 60 (2009), the Court of Appeals held that due process was not violated by including kidnaping in the list of crimes that require SORA registration –  even if there is no proof that the kidnaping involved any sexual act or sexual motive. The Court found the SORA registration requirement to be “rationally related to legitimate government interests” because the Legislature reasonably determined that in a large number of cases where people kidnap or unlawfully imprison other people’s children, the children either are sexually assaulted or are in danger of sexual assault.
 
Both this case and People v. Howard present variations on the Knox theme. In each case, the Court noted that defendants failed to preserve their constitutional challenges to using non-sex crimes for assessing points [Sincerbeaux] or for invoking an override to a presumptive level three [Howard]. It would appear that the constitutional issue is ripe for a leave grant. While Judge Rivera dissented in both cases, leave can only be granted upon  motion to the full court because SORA appeals are treated as civil appeals.  It remains to be seen if the full Court wants to reach the additional constitutional claims that arise in these cases.
Decided June 23, 2016
People v. Glenn S. Smith
 
Decided June 23, 2016
People v. Norman E. Ramsey
Decided June 23, 2016
People v. Dayshawn Crooks
Decided June 14, 2016
People v. Perry C. Griggs
Decided June 14, 2016
People v. Anthony Berry
Decided June 14, 2016
People v. Scott Barden
Issues before the Court: CPL 30.30 - (1) “[W]ho is chargeable, for statutory speedy trial purposes, with each discrete time period within a pre-readiness adjournment when the People initially request an adjournment to a specific date, defense counsel is unavailable on that date and requests a later date, but the court is unavailable on the later date, resulting in an even longer adjournment?” (2)  [W]hether defense counsel consented to the additional delay occasioned by the court’s calendar when, upon being advised by the court of its next available date, counsel responded, ‘[t]hat should be fine.’”?
 
Held: (1) In the pre-readiness context, where the burden is on the People to show excludable time, mere accommodation to the People’s or the court’s requests for certain dates does not qualify as “consent” to the adjournment, and the time is all includable. (2) Counsel merely saying, “[t]hat should be fine,” is accommodation, not consent.
 
CAL Observes: Defense lawyers should be extremely careful in what they say to the People’s or the court’s requests for adjournment dates.  If you are unavailble on the suggested dates you can say so without evincing “consent” under 30.30.  But explanations of why you want more time for your convenience, schedule,  or the needs of defending the case, will constitute consent.  Say as little as possible.
Decided June 9, 2016
People v. Gary Wright
Decided June 7, 2016
People v. Leroy Carver
Decided June 7, 2016
People v. Baasil Reynolds
Decided June 7, 2016
People v. Shane Morris
Revisiting O'Rama as mode-of-proceeding error
Decided May 10, 2016
People v. Jonathan J. Connolly
Decided May 3, 2016
People v. Tyrone D. Manor
Decided May 10, 2016
People v. Wayne Henderson
Decided May 3, 2016
People v. Quanaparker Howard
Issue before the Court: Whether the SORA court erred in declining to depart from the serious physical injury override’s presumptive level-3 risk designation, where the offense was unlawful imprisonment and the serious physical injury had no sexual component.
 
Held: No. The inflicting of serious physical injury required the SORA court to invoke the override and made the defendant a presumptive level 3. The Court of Appeals held that the non-sexual nature of the offense could be a basis for a downward departure from that presumptive level 3. The override makes the defendant a “presumptive” level 3 but level 3 is not mandatory. The Court stressed that, “There is nothing in the record to suggest that the hearing court felt it did not possess the discretion to depart from the presumptive level three.” The SORA court found that the torture inflicted, while not sexual in nature, posed a serious risk to public safety that is not captured by the scoring instrument [“RAI”]. See People v. Gillotti, 23 N.Y.3d 841 (2014) (articulating standard for downward departure).
 
CAL Observes:
In People v. Knox, 12 N.Y.3d 60 (2009), the Court of Appeals held that due process was not violated by including kidnaping in the list of crimes that require SORA registration –  even if there is no proof that the kidnaping involved any sexual act or sexual motive. The Court found the SORA registration requirement to be “rationally related to legitimate government interests” because the Legislature reasonably determined that in a large number of cases where people kidnap or unlawfully imprison other people’s children, the children either are sexually assaulted or are in danger of sexual assault.
 
Both this case and People v. Sincerbeaux present variations on the Knox theme. In each case, the Court noted that defendants failed to preserve their constitutional challenges to using non-sex crimes for assessing points [Sincerbeaux] or for invoking an override to a presumptive level three [Howard]. It would appear that the constitutional issue is ripe for a leave grant. While Judge Rivera dissented in both cases, leave can only be granted upon  motion to the full court because SORA appeals are treated as civil appeals.  It remains to be seen if the full Court wants to reach the additional constitutional claims that arise in these cases.
 
Decided May 3, 2016
People v. Joel Joseph
Decided May 3, 2016
People v. Elliot Parrilla
Issue before the Court: Whether, to be guilty of fourth-degree weapon possession, under PL 265.01(1),  for possessing a “gravity knife” the possessor must know that the tool has the characteristics of a gravity knife.  In this case, the knife was common workman’s tool, a regular folding knife purchased legally at the Home Depot.  DA Vance has been prosecuting these cases since 2010, ensnaring thousands of unwary common laborers in a web of criminality.  These thousands did not know that the knife flicked out, nor would they be able to do so even if they did know.  Only specially trained NYPD officers are able to get these utility knives to open in this fashion.
 
Held: To be guilty of gravity knife possession under subd. 1, the defendant need not know that the object met the definition of a gravity knife.  
 
CAL Observes:  
Although not apparent to the general reader, the way the Court decided the case was an unprincipled mess.  (Disclaimer, this was a CAL case.) First of all, contrary to the Court’s decision, the defense contention was NOT that the defendant had to know that the object met the statutory definition of a gravity knife.  That was specifically not the defense contention.  Rather, the defense contention was that, in order for the possession to be voluntary and knowing, as IS required under the statute, the defendant has to, at the very least, know that the object he possessed flicked out–the essential characteristic of a gravity knife.  In other words, he had to at least know that he possessed something other than a common folding knife.  Thus, the Court felt it had to deliberately mis-frame the defense contention.  Second, although the Court stated that “It is undisputed that to be convicted of criminal possession of a weapon for possession of a gravity knife under PL 265.01 (1) defendants must know that they possess a knife,”   actually, that WAS disputed by the People.  DA Vance argued that, since the crime was one of strict liability, all the defendant has to know is that he possessed an object, not necessarily a knife.  The People opposed injecting ANY  mens rea requirement of knowing KNIFE possession, as that was inconsistent with their strict liability argument.  The requirement of knowledge of KNIFE possession is a uniquely First Department construct, with its unique reasoning and line of cases.  In coming to its decision, the Court of Appeals blandly cited to that line of cases, as if everyone agrees that this is so; in reality, the Court did inject a mens rea requirement into the statute, one not present in the statutory language.  So, in the guise of just upholding the statutory language, the Court actually and actively decided a significant issue of statutory construction at variance with the statutory wording.  To come to this result,  the Court had to misstate both the issue really in question, and what was actually in dispute.  And, of course, they left thousands of common laborers in the position of being unwary criminals sucked into DA Vance’s war on laborers.
 
One immediate consequence of this inhumane decision was that both houses of the State Legislature immediately passed a bill taking common folding knives out of the definition of “gravity knives.”  The legislation is awaiting the Governor’s signature.  Although content to rely on the wisdom of the Legislature when arguing Parrilla in the Court of Appeals (hey guys, it’s harsh, but this is what the legislature wanted), DA Vance is urging the Governor not to sign.