Eye On Eagle

Most Recently Decided Cases

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Decided October 24, 2017
People v. Brian Novak
Issue before the Court: Whether a due process violation occurs when the sole judge deciding a criminal defendant’s appeal as of right is the same judge who convicted the defendant after a bench trial.  (After convicting the defendant in City Court, the judge was elected to County Court.)
 
Held: Yes.  Although Article VI of the State Constitution does not explicitly bar this scenario, recusal was nonetheless required as a matter of due process.  The case was sent back to County Court for a de novo appeal.
 
CAL Observes: This kind of scenario could only happen upstate.  Interestingly, until 1961, when article VI of the State Constitution was revamped, this scenario was explicitly disallowed.  In the 1961 revamp, this language was dropped–inadvertently according to the Novak decision.  See footnote 1.  Perhaps if there’s a constitutional convention they could remember to put the language back in.   No fireworks here, but what if the newly-elected appellate judge was just one in an appellate panel of three or four or five?  BTW, this was Judge Feinman’s first authored opinion.
Decided October 24, 2017
People v. Sean Garvin
Issues before the Court: (1) Whether a warrantless arrest of a suspect in the doorway of his residence is permissible under Payton, provided that the suspect has voluntarily answered the door and the police have not crossed the threshold. (2) Whether New York’s discretionary persistent felony offender statute violates Apprendi.
 
Held: (1) By a 5 to 2 vote, such a warrantless arrest is permissible.  (2) By a 6 to 1 vote, the discretionary persistent statute does not violate Apprendi.
 
CAL Observes: (1) In her majority decision, Judge Stein stated that the Court was merely adhering to its prior rulings that, so long as the defendant was merely between the door jambs of his residence’s threshold, no Payton violation could occur as the defendant is not inside his home. In a dissent joined by Judge Rivera, Judge Wilson stated that the rule should be that Payton is violated, even if the suspect does actually cross the threshold, if the sole reason the police went to defendant’s home was to arrest him without a warrant–a ploy which should be discouraged since it allows the police to circumvent the attachment of the right to counsel (which would attach with the issuance of the warrant).  In a separate dissent, Judge Rivera would have held that a defendant has a privacy interest in the common hallway of a two-family residence, as was the case here.   (2) As to the Apprendi issue, Judge Fahey was the lone dissent. He flat out described the Court’s previous rulings on this issue as flawed and contrary to Supreme Court precedent.  Most of those previous rulings provoked dissents by judges no longer sitting. Perhaps the insertion of this dissent will motivate the United States Supreme Court to finally grant a cert petition challenging New York’s law; previous efforts have been unsuccessful.
Decided October 24, 2017
People v. John Andujar
Issue before the Court: VTL 397 makes it a misdemeanor for a non-peace-officer to “equip” a motor vehicle with a device that is capable of intercepting police radio frequencies.  Does the prohibition apply to a freestanding device in the driver’s pocket?
 
Held: Yes, by the Court’s 6 to 1 vote.  This is an issue of statutory construction. Consulting various dictionaries to interpret the plain language of the statute, the majority decided the word “equip” did not imply the need for physical attachment to the vehicle.
 
CAL Observes: Although the majority states that they were interpreting the plain language of the statute, other parts of the opinion indicate that they were looking mainly to the interpretation effectuating the intent of the legislature, which was to keep police radio frequencies from being intercepted by civilians.  In her lone dissent, Judge Stein stated that the word “equip” plainly requires an attachment to the vehicle.  Although she concedes that the majority’s interpretation “arguably effectuates the general purpose” of the VTL, she also cogently notes that the statute’s ambiguity could also make it difficult for the average citizen to decide between what is criminal and what is allowed.  At least the Court wasn’t trying to decide what the meaning of the word “is” is.
Decided October 19, 2017
People v. Peter Austin
Issue: Whether appellant’s Sixth Amendment right to confrontation was violated by the introduction of DNA evidence through the testimony of a witness who had not performed, witnessed, or supervised the generation of the DNA profiles.
 
Held: The Court unanimously held that the court violated appellant’s right to confront the witnesses against him by permitting an OCME criminalist to testify about DNA testing and comparison evidence produced by others after appellant was under arrest without calling any witness who personally performed, supervised, or observed that testing. 
 
CAL Observes: The majority opinion was a straightforward application of the Court’s recent opinion in People v. John 27 N.Y.3d 294 (2016). The DNA testing and comparison results were testimonial, violating the Confrontation Clause, because the DNA was tested and the reports were prepared after Austin had been accused. The results were inadmissible through the criminalist offered by the People, because he had not prepared, witnessed, or supervised the generation of the numerical DNA profile.
 
In a concurring opinion, Judge Garcia did not contend otherwise. Instead, Judge Garcia pitched Austin as a vehicle for overruling John in the United States Supreme Court (Slip Op., concurring opinion at 2) ( “while the procedure used here -- an expert relying on work performed by others but not admitted into evidence -- mirrors the facts of Williams, our holding in John compels a different result). While Judge Garcia is correct that Austin’s facts have some significant parallels to Illinois v. Williams, 567 U.S. 50, 132 S.Ct. 1221 (2012), he’s incorrect that the rules set down by the Supreme Court in Williams, would compel a different result than reached by the Court in Austin. 
 
The Williams plurality found the admission of DNA test results did not violate the Confrontation Clause for two reasons. Both would have independently excluded the DNA-test-results evidence linking Austin to the crime scene here. First, the Williams Court found that, because the DNA-results report was not entered into evidence, but only referred to by a DNA expert, the test results had been not offered for their truth, and therefore did not violate the Clause. The Court cited to the Illinois rules of evidence allowing an expert, in a non-jury trial, to “base an opinion an opinion on facts that are ‘made known to the expert at or before the hearing.” Williams, 567 U.S. at _, 132 S.Ct. at 2224. Because the report results were not admitted for the truth of the matter asserted, the evidence did not violate the Clause, since the results of the reports were only admitted as a basis for the expert’s conclusion that the DNA found on the weapon matched the defendant’s. New York law, however, does not permit such basis testimony. People v. Goldstein, 6 N.Y.3d 119, 127 (2005); John, 27 N.Y.3d at 306; Slip Op. at 16 (opinion testimony based on out-of-court statements inadmissible unless underlying statement is admissible); see, Williams, _ U.S. at _, 132 S.Ct. at 2269 (Kagan,  J., dissenting)(citing Goldstein and other sources describing the idea that basis evidence comes in for some reason other than its truth as “factually implausible,” “nonsense,” and “sheer fiction”). Here, when the criminalist testified that he’d looked at the DNA profile comprising appellant’s DNA profile, and concluded that it matched the profile compiled from the scene, the criminalist was introducing the underlying test results for their truth.
 
Second, the Supreme Court found that the DNA-test-result evidence did not violate the Clause because the test had not been prepared to accuse an identified suspect, but instead to “catch a dangerous rapist who was still at large.” Williams, 567 U.S. at 84. The test results were pre-accusatory, because they were prepared before Williams was identified as a suspect. In Austin, Judge Garcia acknowledged that the DNA test was performed after Austin had been identified as a suspect and was done for the purpose of proving his guilt (Slip Op. at 3). But Judge Garcia contends that, because the accusatory test was preceded by a CODIS match, the post-accusatory report results entered into evidence through the criminalist were merely confirmatory of the prior CODIS match. Judge Garcia would create an exception to the classification of post-accusatory testing results as testimonial where the results confirm the results of a prior pre-accusatory test. 
 
Creating a confirmatory exception to the Clause would be contrary to its purpose. That the DNA criminalist in Austin was aware that there had been a pre-arrest DNA profile in the CODIS database and that that profile connected Austin to the crime scene did not render the post-arrest DNA profile non-testimonial. That Austin’s CODIS profile alerted authorities that it might be his blood left behind at the two crime scenes made the subsequent testing more accusatory not less, and the post-arrest profile more testimonial than if there had been no prior profile from appellant suggesting he had been present at the site of the burglaries. 
 
If the facts in Austin are judged solely by the rules laid down by the plurality opinion in Williams, the criminalist’s testimony about the post-arrest DNA test results would have violated the Confrontation Clause.
Decided October 19, 2017
People v. Vilma Bautista
Decided October 19, 2017
People v. James L. Carr
Decided October 17, 2017
People v. John R. Simmons
Decided October 12, 2017
People v. Phillip Wright
Decided October 12, 2017
People v. Ross Campbell
Decided September 7, 2017
People v. Gregory Lee
Decided September 5, 2017
People v. Douglas R. Every