Ethics Watch 1st Quarter 2019 (April 8, 2019)


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Brady/Giglio/Rosario & Other Discovery Issues

1st Department

People v Alexander (Devin), 2019 NY Slip Op 00668 (1/31/19) – “[C]laim that the People presented allegedly false testimony is based on factual assertions outside the record and therefore is unreviewable on direct appeal. The record does not support defendant’s assertion that law enforcement failed to investigate the truth of a witness’s testimony. In any event, at trial defendant was not prevented from challenging the thoroughness of the investigation, and the Court of Appeals has “decline[d] to impose an affirmative obligation upon the police to obtain exculpatory information for criminal defendants” [People v Hayes, 17 NY3d 46, 52 (2010), cert denied 565 US 1095 (2011)].”

2nd Department

People v Smith, 2019 NY Slip Op 00314 (1/16/19) – The People’s motion to compel defendant to submit to a buccal swab for DNA testing was not made within 45 days of arraignment, as prescribed by CPL § 240.90(1), and the record did not reflect an explanation for the delay. “However, the fact that the motion was untimely made does not mean that the admission of evidence concerning the defendant’s refusal to provide a DNA sample warrants reversal, since the defendant did not suffer any prejudice by reason of the four-month delay [see People v Young, 160 AD3d 1206, 1209 (3rd Dept 2018); People v Ruffell, 55 AD3d 1271 (4th Dept 2008)] and the error did not implicate the defendant’s constitutional rights [see People v Cox, 161 AD3d 1100, 1101 (2d Dept 2018); People v Vieweg, 155 AD3d 1305, 1308 (3rd Dept 2017)].”

People v Torres, 2019 NY Slip Op 01434 (2/27/19) – New trial of 1998 drug sales indictment ordered on the ground the court should have granted defense counsel’s request for a permissive adverse inference instruction because of the loss or destruction of “duly requested tape recordings and any other police records related to taped interactions between the undercover officer and a witness to the March 4, 1998, sale who was also the defendant’s unindicted co-defendant.”

“‘[A] permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence has been destroyed by agents of the State’ [People v Handy, 20 NY3d 663, 669 (2013)]. Although the prosecutor stated that the missing tapes were unrelated to the sales at issue and were not recorded on the dates of the buys, he concededly never listened to them. Additionally, the officer who relayed the information that the tapes were not recorded on the dates of the buys to the prosecutor did not testify at trial.”

Because the proof of defendant’s guilt was not overwhelming, the Second Department refused to deem the error harmless. “Moreover,” it added, “even assuming that there was overwhelming evidence of guilt, it cannot be said that there is no significant probability that the court’s failure to grant the defendant’s request for a permissive adverse inference charge, and therefore consider in its deliberation the absence and significance of the missing tape recordings, contributed to the conviction [citations omitted].”

3rd Department

People v McPherson, 2019 NY Slip Op 01674 (3/07/19) – Conviction for promoting prison contraband in the first degree affirmed. Court noted, however, that:

“Although the People are not under an obligation to obtain witness statements made during a prison disciplinary hearing [see People v Howard, 87 NY2d 940, 941 (1996); People v Lewis, 167 AD3d 158, 161 (3rd Dept 2018), if such material is in the People’s possession, an obligation to disclose arises [see CPL 240.45 (1) (a)People v Smith, 89 AD3d 1148, 1150 (3rd Dept 2011); People v Duran, 6 AD3d 809, 811 (3rd Dept 2004)]. The difficulty here is that the record does not show when the People obtained the hearing tape and the actual content of that tape. Consequently, we conclude that defendant’s pro se claim is more properly the subject of a CPL article 440 motion [citations omitted].”

People v Rawlinson2019 NY Slip Op 02387 (3/28/19) – No violation of CPL 710.30’s notice requirement where the out-of-court identification testimony was elicited on cross-examination of the victim.

CPL 710.30 comes into play “[w]henever the [P]eople intend to offer at a trial … testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him or her….” Here, “the alleged identification testimony was not elicited during the People’s direct examination. Rather, the victim testified on cross-examination that he drove to the scene of the felony traffic stop, that he observed the scene from his car and that, sometime thereafter, while at the police station, he gave a statement indicating that the shooter had been the last person to exit the stopped vehicle. The victim further testified that the police did not show him any photographs or ask him to identify the shooter in a lineup. Under these circumstances, the notice requirement of CPL 710.30 was not triggered and, thus, there can be no violation [see, e.g., People v Berkowitz, 50 NY2d 333, 338 n 1 (1980)].”

4th Department

People v Parsons, 2019 NY Slip Op 00772 (1/1/19) – Trial court properly denied defendant’s CPL § 440.10 motion to vacate his Murder 2 conviction on the ground that the People knowingly adduced false, material testimony at his 2002 trial.

“In support of his motion, defendant submitted two affidavits of a witness who averred that he testified falsely at trial and that, prior to trial, he had informed the trial prosecutor that his anticipated trial testimony would be false. Although the witness repeated that claim when he testified at the hearing on defendant’s motion, certain details of his testimony differed significantly from those provided in his affidavits, including details concerning how and to whom the witness admitted providing false testimony. Following the hearing, the court concluded that the witness was not credible based on, inter alia, his demeanor on the stand, the discrepancies between his testimony and the affidavits he provided, and his inherent lack of credibility. We conclude that the court was entitled to determine, in view of the evidence, that the witness’s testimony was simply not credible…. A hearing court’s credibility determinations are entitled to great weight in light of its opportunity to see the witnesses, hear the testimony, and observe demeanor. [People v Thibodeau, 151 AD3d 1548, 1552, (4th Dept 2017), affd 31 NY3d 1155 (2018)]” (internal punctuation omitted).

People v Dix, 2019 NY Slip Op 01974 (3/15/19) – App. Div. rejected Dix’s claim that his guilty plea conviction should be invalidated because the People allegedly failed to timely disclose Rosario material.

“Such material need not be disclosed until “[a]fter the jury has been sworn and before the prosecutor’s opening address” [CPL 240.45 (1); see People v Pepe, 259 AD2d 949, 950 (4th Dept 1999)],” and Dix pleaded guilty before the People were required to disclose Rosario material. Nor was this defendant “entitled to withdraw his plea on the ground that the People did not disclose their witnesses inasmuch as ‘[t]here is neither a constitutional nor statutory obligation mandating the pretrial disclosure of the identity of … prosecution witness[es].’ [People v Nesmith, 144 AD3d 1508, 1509 (4th Dept 2016); also see People v Stacchini, 108 AD3d 866, 867 (3d Dept 2013). Defendant’s further contention that he was entitled to withdraw his plea because the People did not disclose other information also lacks merit. There is no claim by defendant, or any indication in the record, that the People failed to disclose any exculpatory information in their possession [internal punctuation and citations omitted].”

Grand Jury

1st Department

People v Wilcott, 2019 NY Slip Op 00213 (1/10/19) – The People were not remiss in not serving defendant with a CPL 190.50(5)(a) grand jury notice. “A defendant is only entitled to notice of a grand jury presentation as to charges contained in a pending felony complaint [see People v Thomas, 27 AD3d 292, 293 (1st Dept 2006)], and here there was only a misdemeanor complaint. The notice statute should be construed according to its plain language [People v Small, 26 NY3d 253, 259 (2015)].”

People v Neysmith, 2019 NY Slip Op 00676 (1/31/19) – “Defendant did not preserve his claim that the court’s consideration of the People’s ex parte motion to resubmit a charge to the grand jury violated his right to counsel, and we decline to review it in the interest of justice. We find that this argument falls within the category of right-to-counsel claims that require preservation [see People v Garay, 25 NY3d 62, 67, cert denied 577 US __, 136 S Ct 501 (2015)]. As an alternative holding, we reject it on the merits [see, e.g., People v Davis, 149 AD3d 451, 453 (1st Dept 2017)].”

3rd Department

People v Stone169 AD3d 1165 (2/21/19) – Following reversal and remittitur for a retrial on the count of Predatory Sexual Assault Against a Child [133 AD3d 982 (3rd Dept 2015), a re-inspection of the grand jury minutes (upon the defendant’s motion) resulted in County Court reducing that charge to Course of Sexual Conduct Against a Child in the First Degree. Defendant was subsequently convicted at a nonjury trial, but this conviction has now been reversed.

“Where a court acts to reduce a charge contained in an indictment and the People fail within 30 days to take any action in response to this decision, the order directing the reduction shall take effect and the People are obligated, if they intend to pursue a prosecution, to either file an instrument containing the reduced charge or obtain permission to re-present the matter to a grand jury” [People v Casey, 66 AD3d 1128, 1130 (3rd Dept 2009); see CPL 210.20 (6)]).” Here, the People took no action, “and County Court had no independent power to effectuate the reduction via an amendment to the original indictment [see CPL §§ 200.70 and 210.20 (6) (a)People v Jackson, 87 NY2d 782, 789 (1996); Casey,66 AD3d at 1130). Because a valid accusatory instrument “is a nonwaivable jurisdictional prerequisite to a criminal prosecution[,] the People’s failure to file an indictment charging the reduced count precluded County Court from trying and convicting defendant on it [internal punctuation and citations omitted]. Thus, notwithstanding the absence of any objection by defendant to the problem and a conviction on the reduced count that was supported by sufficient proof at trial, we are constrained to reverse the judgment of conviction and dismiss the original indictment as jurisdictionally defective [citations omitted].”

4th Department

People v Thompson, 2019 NY Slip Op 01006 (2/8/19) – County Court properly denied defendant’s CPL § 210.35(5) motion to dismiss the indictment charging him with, e.g., robbery and burglary. “[W]e reject defendant’s contention that the proceeding was defective because the prosecutor gave perjury instructions regarding defendant’s grand jury testimony to the same grand jury that indicted him on the set of charges upon which he was convicted…. The record establishes that the grand jury voted to indict defendant on the first set of charges before the prosecutor gave the perjury instructions. Thus, the first set of charges could not have been impacted by those instructions. Furthermore, the court later dismissed the perjury charge, and thus defendant sustained no prejudice from that indictment.”

People v Linder, 2019 NY Slip Op 01965 (3/15/19) – Court refused to dismiss the indictment on the ground that the People violated defendant’s statutory right to testify before the Grand Jury. This claim had not been preserved, via a timely CPL § 190.50 (5) (c) motion, for appellate review. Moreover, although defendant told the trial court that he would like to testify, “it is undisputed that defendant never ‘serve[d] upon the district attorney … a written notice” of his intent to testify as required by CPL § 190.50 (5) (a)[emphasis in slip opinion].” Lastly, “the People were not obligated to preemptively notify [defendant] of the superceding grand jury proceeding because, at that time, there was no ‘currently undisposed of felony complaint charging an offense which is a subject of the prospective or pending [superceding] grand jury proceeding’ [CPL § 190.50 (5) (a); (additional case citations omitted)].”

Voir Dire

1st Dept

People v Watson, 2019 NY Slip Op 00217 (1/10/19) – After concluding that mixed race-gender groups, such as black males, fall within Batson’s ambit & that the trial court had not followed the 3-step protocol prescribed by the U.S. Supreme Court in Batson (476 US 79), the First Department held this defendant’s appeal in abeyance and remitted the case to the trial court “for further proceedings as are necessary to satisfy the requirements of Batson….” 141 AD3d 23 (1st Dept 2016). Upon the matter’s return to the Appellate Division, a sharply divided (3-2) panel ruled the reconstruction hearing inadequate — and reversed the convictions and dismissed the indictment charging the defendant with assaults upon police officers and resisting arrest.

“The purpose of a Batson reconstruction hearing is to attempt to recreate, after the fact, a record of the prosecutor’s proffered justifications for striking certain venire persons. At such a hearing, it is typical to rely on the contemporaneous notes of the prosecutor and to elicit testimony from him or her. The prosecutor testifies as a sworn witness, and is subject to cross-examination concerning the strike or strikes [citation omitted].
* * *
No testimony or notes were offered at this Batson reconstruction hearing. The ADA who conducted the voir dire did not appear and his notes were never disclosed. The ADA at the reconstruction hearing could only speculate as to the motives of his colleague. This procedure was insufficient to satisfy the requirements of Batson.”
* * *
Finally, the hearing court had no basis for concluding that the prosecution’s decision to strike Prosser was nondiscriminatory…. [T]he hearing court made no findings whatsoever on pretext (as to any of the jurors), and that the record does not support the hearing court’s conclusion that the defense conceded that the People’s striking of two of the jurors at issue was non-pretextual.
There is no basis to remand for a second Batson hearing, given the hearing court’s utter failure to abide by our instructions on the prior remand. Defendant has fully served the incarceratory portion of her sentence, and remanding the case for a new trial would not be in the interest of judicial economy [see People v Flynn, 79 NY2d 879, 882 (1992); People v Johnson, 88 AD2d 552 (1st Dept 1982)].”

People v Bloise,2019 NY Slip Op 01363 (2/26/19) – Trial court erred in granting the prosecution’s reverse-Batson challenge where the “People simply failed to meet their burden that racial discrimination was the motivating factor” and “[d]efense counsel presented facially race-neutral reasons for challenging the panelists at issue based on their having been crime victims or relatives of crime victims and there was no evidence of disparate treatment by defense counsel of similarly situated panelists.”

People v Espinal, 2019 NY Slip Op 01660 (3/7/19) – “The court properly denied defendant’s for cause challenge against a prospective juror who was acquainted with one of the testifying officers (see CPL 270.20[1][c]). The panelist first referred to the officer as her cousin’s father, and then as her cousin’s ex-husband. She said that she did not have a close relationship with the officer, but rather that they barely exchanged greetings when they saw each other at family functions. The relationship between the two was ‘little more than a nodding acquaintance’that was unlikely to preclude her from rendering an impartial verdict, and was no basis for per se disqualification on the ground of implied bias.”

People v Dunham, 2019 NY Slip Op 02265 (1/26/19) – Trial court did not err in denying defendant’s Batson application. “The record supports the court’s finding that the nondiscriminatory reasons provided by the prosecutor for the challenges in question were not pretextual. This finding, based primarily on the court’s assessment of the attorney’s credibility, is entitled to great deference [citations omitted]. Each of the proffered nondiscriminatory reasons had a legitimate basis [see People v Hecker, 15 NY3d 625, 663-64 (2010)], and the record fails to support defendant’s assertion that an isolated phrase employed by the prosecutor in explaining her jury selection strategy should be viewed as an actual concession of discriminatory intent. Defendant failed to preserve his claim of disparate treatment by the prosecutor of similarly situated panelists, [and] we find no disparity that would compel a finding of pretext.”

2nd Dept

People v Alexander (Diamonte), 2019 NY Slip Op 00135 (1/9/19) – Holding that the trial court committed reversible error when it permitted the prosecutor to exercise a peremptory challenge to a prospective black juror without first ruling on whether the race-neutral reasons proffered by the prosecutor were sufficient or merely a pretext for discrimination.

“After the Supreme Court found that the defendant made a prima facie showing that the prosecutor was exercising her peremptory challenges in a discriminatory manner, the prosecutor stated that she believed this potential juror to be too young and inexperienced to serve on a murder trial. The court allowed for further questioning of this potential juror and, based on this additional questioning, determined that the potential juror seemed to have difficulty understanding the questions posed to him, that he appeared to have ‘a glazed-eye look,’ and that his ‘ability to communicate is somewhat impaired.” The court then allowed the prosecutor to exercise a peremptory challenge against the potential juror, deeming the peremptory challenge to be not ‘in any way based on any discrimination.’ However, the court never provided a ruling on the defendant’s initial Batson challenge, relating to the prosecutor’s contention that the juror was too young and inexperienced to serve.”

“Under these circumstances, the Supreme Court failed in its duty to determine whether the prosecutor’s race-neutral explanations were credible (see Miller-El v Cockrell, 537 US 322, 339 (2003); see also United States v Taylor, 636 F3d 901, 905 (7th Cir 2011) (“when ruling on a Batson challenge, the trial court should consider only the reasons initially given to support the challenged strike, not additional reasons offered after the fact”)]. As the court did not satisfactorily determine whether the prosecutor provided legitimate nonpretextual, race-neutral explanations for the exercise of her peremptory challenges, the judgment of conviction must be vacated and a new trial ordered [citations omitted].”

People v Joseph, 2019 NY Slip Op 00304 (1/16/19) – Second Dept rejected defendant’s assertion that he was entitled to a new trial because of Batson error.

“When challenged, the prosecutor provided gender-neutral explanations for using a peremptory challenge to exclude each of the prospective [male] jurors at issue [citations omitted]. A trial court’s ultimate determination as to whether a proffered nondiscriminatory reason was pretextual is accorded great deference on appeal [see People v Hecker, 15 NY3d 625, 656 (2010)]. Since the record supports the court’s determination that the prosecutor’s explanations were not pretextual, the court’s determination on this issue will not be disturbed on appeal [citations omitted].”

Opening

2nd Department

People v Carmichael, 2019 NY Slip Op 01962 (3/6/19) – Defendant raised a number of issues on the appeal from his convictions for, e.g., harassment, stalking, and multiple counts of criminal contempt. Among the claims rejected by the Second Department:

“During the prosecution’s opening statement, the prosecutor referenced certain recorded telephone calls she intended to introduce, but during the trial, the prosecutor was unable to lay a foundation for the admission of those telephone calls into evidence. The defendant’s contention that these comments deprived him of a fair trial is not preserved for appellate review. In any event, ‘absent bad faith or prejudice,’ unfulfilled promises in a prosecutor’s statement will not entitle a defendant to a new trial [People v De Torre, 34 NY2d 199, 207 (1974)]. Here, there is no reason to believe that the prosecutor acted in bad faith, and under the circumstances of this case, the defendant was not unduly prejudiced by the unfulfilled representations [see People v McKnight, 72 AD3d 846, 846-47 (2d Dept), aff’d 16 NY3d 43 (2010)].”

Direct

1st Dept

People v Bermudez, 2019 NY Slip Op 00177 (1/10/19) – “Defendant was not deprived of a fair trial by the People’s unsuccessful attempts to get the attempted murder victim to testify about the crime, or by related events at trial. By the time of trial, this victim was awaiting sentence in an unrelated case and had entered into a cooperation agreement. The victim took the stand and testified about the agreement, but refused to give any testimony about the incident. The victim, who did not cite the Fifth Amendment or assert any other privilege, persisted in his refusal despite the threat of contempt. We conclude that there was nothing in the victim’s refusal to testify, the cooperation agreement, or the People’s related comments in voir dire and opening and closing statements, that would lead the jury to draw inculpatory inferences against defendant that would add any weight to the People’s case [citations omitted]. The various comments made by the prosecutor were neutral, and neither the victim’s limited testimony before the jury nor the fact of his cooperation agreement were likely to lead the jury to infer defendant’s guilt. In any event, to the extent the jury could have inferred that the victim had inculpatory evidence that he was refusing to reveal, the court’s instructions that the jury was not to speculate as to why the victim refused to testify was sufficient to avoid that inference [see People v Berg, 59 NY2d 294, 300 (1983)], and the jury is presumed to have followed the instruction.”

People v Hayes, 2019 NY Slip Op 00227 (1/15/19) – “An approximately 22-minute video of defendant, the victim, and three others rapping was not evidence of uncharged crimes or bad acts despite the violent or offensive content of any of the rap lyrics [see People v Brewer, 28 NY3d 271, 276 (2016)]. Even if Molineux analysis were applicable, the court providently exercised its discretion in finding that the video’s probative value outweighed any undue prejudice arising from defendant’s lyrics. The video had strong probative value in support of the identification of defendant based on his use of a three-word derogatory phrase that was also used by the shooter in a videotape of the shooting, the admission of which is not challenged on appeal, given that no one else present used that phrase in the video at issue. This video also supported the credibility, and ability to identify defendant, of two witnesses who were present on the occasions of both the video and the homicide. In the video the two witnesses were able to deliver elaborate lyrics despite their use of marijuana and alcohol, which they had also been using shortly before the shooting. Moreover, those witnesses had met defendant only recently in connection with a criminal enterprise, and the video tended to show that the witnesses would be able to identify defendant.”

People v Caceres, 2019 NY Slip Op 02427 (3/28/19) – “Although the prosecutor should have sought an advance ruling” — before eliciting testimony from the underage victim concerning an uncharged incident of sexual abuse — “the evidence was admissible as background information to place the events in context and explain the victim’s delay in reporting the charged criminal conduct [citation omitted], and the lack of a Ventimiglia hearing did not cause defendant any prejudice [see People v McLeod, 279 AD2d 372 (1st Dept 2001)). In any event, striking the testimony would have been more than sufficient [see People v Vaz,118 AD3d 587 (1st Dept 2014)], but defense counsel declined that remedy because he did not want to be precluded from cross-examining the victim on her recantation of the uncharged allegation.” The trial court’s refusal to grant the belated motion for “the unduly drastic remedy of a mistrial” under these circumstances does not give rise to reversal and a new trial.

2nd Dept

People v Mandes, 2019 NY Slip Op 0014 (1/9/19) — Convicted of multiple child sex offenses, defendant argued, inter alia, that the People should not have been allowed to introduce photographs of the victims on its direct case. The Appellate Division deemed this claim to be both unpreserved and without merit. “The court providently exercised its discretion in admitting into evidence photographs depicting the victims at ages 8 and 11, respectively, when the sexual abuse was alleged to have occurred, in order to illustrate each victim’s age and appearance, and to corroborate expert testimony regarding the “imbalance of power” which existed between the defendant and the victims [see People v Stevens, 76 NY2d 833, 835 (1990); People v Matthews, 142 AD3d 1354 (4th Dept 2016); People v Khan, 88 AD3d 1014, 1015 (2d Dept 2011)].”

But see People v Walton, 2019 NY Slip Op 00623 (1/30/19) — Holding that admission of murder victim’s photo, depicting him while he was alive, was improper because “the victim’s appearance or identity was not relevant to a material issue at trial.” See, e.g., People v Thompson, 34 AD3d 852, 854 (2d Dept 2006). Error, however, was deemed harmless in light of the overwhelming evidence of Walton’s guilt.

People v Williams, 2019 NY Slip Op 00151 (1/9/19) – Contention that People’s introduction of a photo, posted on “social media website,” was unduly prejudicial because it suggested he was affiliated with a street gang, provided no basis for reversal. “[T]rial counsel stated ‘I have no objection’ to the admission of the photograph after stipulating to an instruction that addressed counsel’s concerns by advising the jury that the photograph was not being admitted to allege any gang affiliation and that none of the individuals depicted therein were known to have any gang affiliation (see People v Robinson, 143 AD3d 744, 745-746 (2d Dep 2016); People v Armstrong, 138 AD3d 877, 878-879 (2d Dept 2016); People v Gega, 74 AD3d 1229, 1231 (2d Dept 2010)].”

People v Young, 2019 NY Slip Op 00152 (1/9/19) – On appeal, Young complained that a detective testified he “was identified as a suspect after the detective spoke with a member of [Young’s] family,” thereby violating his constitutional right to confront the witnesses against him. See generally Crawford v Washington, 541 US 36 (2004). The App. Div. declined to order a new trial on this unpreserved ground. “[T]he jury was instructed that this testimony was not admitted for its truth. Therefore, that testimony was not testimonial in nature [see People v Ryan, 17 AD3d 1, 3 (3rd Dept 2005)]. Further, the testimony did not directly imply that the family member implicated the defendant in the homicide (see People v Richberg,123 AD3d 946 (2d Dept 2014).”

People v Dyson, 2019 NY Slip Op 01225 (2/20/19) – The testimony of the People’s DNA expert violated defendant’s constitutional right to confrontation. “In order to satisfy the Confrontation Clause where the People seek to introduce testimonial DNA evidence, ‘an analyst who witnessed, performed or supervised the generation of defendant’s DNA profile, or who used his or her independent analysis on the raw data, as opposed to a testifying analyst functioning as a conduit for the conclusions of others, must be available to testify’ [People v John, 27 NY3d 294, 315 (2016); People v Austin, 30 NY3d 98, 104 (2017)]. Although the People’s expert testified that he conducted a ‘technical review’ of the reports prepared by another criminalist whom he supervises, he did not establish that such review entailed using his own independent analysis on the raw data [see Austin, 30 NY3d at 104-105; John, 27 NY3d at 315].” The Second Department, however, declined to order a new trial, for it found the constitutional error to be harmless in this case.

People v Gonsalves, 2019 NY Slip Op 01792 (3/13/19) – Robbery & related convictions reversed and a new trial ordered because these 2 errors could not be deemed harmless:

  • The People elicited testimony from the victim (Fernandez), who owned the barbershop which was the site of the robbery, that the defendant’s stepfather came to the barbershop several days after the robbery, to say he was ‘sorry’ for what the defendant had done, to return Fernandez’s keys, and to offer Fernandez a replacement cell phone.”
“There was no showing that the defendant participated in or was in any way connected to his stepfather’s actions [see People v Buzzi, 238 NY 390, 398 (1924); People v Ya-ko Chi, 72 AD3d 709, 710 (2d Dept 2010); People v Brooks, 292 AD2d 540, 541 (2d Dept 2002)].”
  • An investigating detective’s testimony re a conversation he had with an anonymous informant, who reportedly was an eyewitness to the robbery & identified defendant by name as the perpetrator, violated defendant’s Confrontation Clause rights.
“The testimony ‘went beyond the permissible bounds of provid[ing] background information as to how and why the police pursued [the] defendant’ [People v Garcia, 25 NY3d 77, 86 (2015) (other citations omitted)].”

People v Robinson, 2019 NY Slip Op 01799 (3/13/19) – At trial of indictment charging defendant with CPW on September 20, 2014, the court should not have permitted the People to introduce recordings of telephone calls he made from Rikers Island in May-June 2015 while he was in pretrial custody on an unrelated, May 2015 gun possession charge. Here, “the recordings’ probative value with respect to the instant offense was substantially outweighed by the risks of unduly prejudicing him and misleading the jury.”

“[T]he timing and content of the telephone calls made it highly unlikely that the defendant was referencing his September 2014 arrest for the instant offense, rather than his subsequent arrest on the unrelated … charge. Moreover … , the jury was unaware of the defendant’s subsequent May 2015 arrest, and therefore was unable to properly evaluate the weight to be accorded to the recordings as evidence of the defendant’s guilt of the instant offense. Thus, there was a substantial risk that the jury would be misled into believing that the defendant’s admissions in the telephone recordings referred to the instant offense. The admission of the recordings into evidence placed the defendant in the untenable position of deciding whether to accept this misleading narrative that the telephone recordings referred to the instant offense or disclose his later arrest on a similar gun possession charge, which disclosure itself would have caused him undue prejudice [see generally People v Agina, 18 NY3d 600, 603 (2012)].”
“Additionally, the prosecutor’s focus during summation on the telephone calls exacerbated the prejudice to the defendant resulting from their admission [citations omitted], and the jury apparently attached substantial weight to the recorded telephone calls, as it asked to hear them again during deliberations (see People v Rivera, 25 NY3d 256, 265 (2015); People v Vargas, 154 AD3d 971, 974 (2d Dept 2017)]. Accordingly, we conclude that a new trial, at which evidence of the defendant’s recorded telephone calls should be excluded, is warranted.”

3rd Dept

People v Nunes, 2019 NY Slip Op 00165 (1/10/19) – The propriety of the trial prosecutor’s impeachment of one of the People’s own witnesses was among the many issues raised on this defendant’s appeal from his convictions for, e.g., murder and attempted robbery. Before analyzing each of the 5 instances in question, the Third Department provided this helpful summary of the applicable law:

CPL 60.35 modified the common-law rule against impeachment of one’s own witness by allowing a party who calls a witness to use certain prior contradictory statements to impeach the credibility of the witness or to refresh his or her recollection [see People v Berry, 27 NY3d 10, 17 (2016)]. CPL 60.35 is applicable when a witness gives testimony on a material issue in the case that is contradicted by a prior statement. When the testimony adduced at trial tends to disprove the position of the party who called the witness, the content of the statement may be admitted only for the purpose of impeachment, provided that the court give an appropriate limiting instruction upon receipt of the evidence [[see CPL 60.35 (1) and (2)Berry, 27 NY3d at 17]. However, when the trial testimony regarding a material issue in the case does not tend to disprove the position of the party who called the witness, a prior contradictory statement is inadmissible and may be used only to refresh the recollection of the witness in a manner that does not disclose its content to the jury [see CPL 60.35 (3)People v Bellamy, 26 AD3d 638, 640 (3rd Dept 2006)].”

Read the full decision for a better understanding of how you can avoid missteps in this area.

People v Silver, 2019 NY Slip Op 00328 (1/17/19) – Trial prosecutor should not have asked the victim, on re-direct examination, if she knew any of the men standing with defendant, before he fired a gun at her, were gang members. But County Court did not abuse its discretion in denying the subsequent motion for a mistrial. The victim had not answered the question before defense counsel’s objection was sustained; the jurors were told that they should not speculate as to the reasons they were going to be temporarily excused from the courtroom as there were “some legal matters to discuss.” Consequently, “not only was the inherent prejudice of the People’s question blunted by the fact that it remained unanswered, but County Court’s swift action and simple instructions to the jury also limited this prejudice. Accordingly, we do not find that defendant was deprived of a fair trial….”

Cross-examination

4th Department

People v Hall, 2019 NY Slip Op 00745 (2/1/19) – Prosecutor did not commit misconduct when he confronted defendant with his entire criminal record, which was at odds with the trial court’s pretrial Sandoval ruling. In his direct testimony, defendant professed he could not recall whether he was convicted of six of the seven crimes on which the court ruled he could be questioned. “Where, as here, a defendant’s testimony conflicts with evidence precluded by a Sandoval ruling, the defense ‘opens the door’ on the issue in question, and the [defendant] is properly subject to impeachment by the prosecution’s use of the otherwise precluded evidence.” People v Lyon, 77 AD3d 1338, 1338 (4th Dept 2010], quoting People v Fardan, 82 NY2d 638, 646 (1993); see also People v Rodriguez, 85 NY2d 586, 591 (1995).

People v Thomas, 2019 NY Slip Op 00795 (2/1/19) – Rejected defendant’s (unpreserved) claims that prosecutor’s cross-examination of certain defense witnesses, and use of witnesses’ responses in his summation, constituted prosecutorial misconduct. In People v Dawson, 50 NY2d 311, 321 (1980), the Court of Appeals held that a prosecutor may cross-examine a defense witness concerning his or her failure to come forward with exculpatory information at an earlier date, provided that a proper foundation has been laid. “The prosecutor here laid the proper foundation [see, e.g., People v Garner, 52 AD3d 1329, 1329-1330, (4th Dept 2008)], and defendant does not contend otherwise. Defendant contends instead that Supreme Court erred in failing to ‘call a bench conference to ascertain whether the witness[es] refrained from speaking under the advice of defense counsel’ (Dawson, 50 NY2d at 323).” But defendant’s attorney did not request such a bench conference, and there was no support in the record for a finding that “the witnesses refrained from speaking under the advice of defense counsel [citation omitted]” or that the prosecutor did not act in good faith [see Dawson, 50 NY2d at 323].”

“The prosecutor’s remarks in summation were [therefore] fair comment on the testimony of the witnesses [see People v Blake, 158 AD2d 348, 349 (1st Dept 1990)].”

Summation

2nd Dept 2019

People v Walton, 2019 NY Slip Op 00623 (1/30/19) – Defendant failed to persuade the App. Div. that he was denied a fair trial by remarks made by the prosecutor in his opening and closing statements (which were not objected to at the time by trial counsel). “[C]omments on the defense counsel’s failure to address the identification of the defendant’s girlfriend were a fair response to arguments presented by the defendant’s counsel in summation [citations omitted]. Although the People’s remarks as to who was present in the audience at trial and the ‘outrageous’ nature of the shooting and comments evoking July 4th as a family holiday were improper [see People v Redd, 141 AD3d 546, 550 (2d Dept 2016); People v Walters, 251 AD2d 433, 434 (2d Dept 1998)], those remarks constituted harmless error….”

People v Gonsalves, 2019 NY Slip Op 01792 (3/13/19) – “Upon retrial, we remind the People that, on summation, a prosecutor may not improperly encourage[ ] inferences of guilty based on facts not in evidence’ [People v Fisher, 18 NY3d 964, 966 (2012); see People v Powell, 165 AD3d 842 (2d Dept 2018)]. Here, there was no evidence to support the prosecutor’s assertion that [the victim] had identified the defendant as the robber ‘immediately’ by recognizing a distinctive ‘dot’ on the defendant’s face.”

Conflict of Interest-Appearance of Impropriety

1st Department

People v Martinez (Jose), 2019 NY Slip Op 00034 (1/3/19) – Fact that prospective juror said he was the spouse of “a supervisor” in the “complaint office” of the Bronx DA’s Office did not require the trial court to grant defense counsel’s challenge for cause. The trial prosecutor “stated that he did not know who the panelist’s wife was; there was no indication in the record that the wife had ever had any contact with defendant’s case; and the prospective juror “gave repeated assurances that he could be impartial despite his wife’s employment.” “On this limited record, defendant failed to meet his burden of showing implied bias, requiring automatic exclusion [citation omitted]. The connection between the panelist and the prosecution was too attenuated to support a finding of implied bias (see, e.g., People v Hawkins, 41 AD3d 732 (2d Dept 2007); People v Malave, 271 AD2d 204 (1st Dept 2000)].”

3rd Department

People v Sumter2019 NY Slip Op 01460 (2/28/19) – “Public Defender’s office was precluded, as a matter of law, from representing [defendant] at the resentencing hearing because the Public Defender, prior to being appointed to that position, was the County Judge who presided over and initially sentenced him in this matter [see Judiciary Law § 17; People v Oakley, 104 AD3d 1059, 1059-1060 (3rd Dept 2013); Matter of Czajka v Koweek, 100 AD3d 1136, 1138-1139 (3rd Dept 2012)].”

People v Rudolph2019 NY Slip Op 01675 (3/07/19) – No conflict of interest amounting to ineffective assistance of counsel where defendant’s attorney hired a former ADA, who had been assigned to handle defendant’s first arrest, but “not much occurred on the case” while the attorney was still with the DA’s Office; when he left, the case was reassigned and indicted by another ADA. Even though it was anticiapted, when he joined defense counsel’s practice, that the new associate would play no role in any of defendant’s cases, the attorney met with defendant after he was arrested while out on bail pending sentencing on the first case and represented defendant when the enhanced sentence was imposed. He also represented defendant at the sentencing on another plea conviction.

“[T]here is an inherent conflict of interest where a defense attorney who initially represented a defendant and[,] during the pendency of the criminal proceeding[,] then join[s] the [DA’s] office. However, the concerns that arise in that scenario are not present in cases, such as here, where the reverse occurs and an ADA assumes a position as a defense attorney [Matter of State of New York v David J., 167 AD3d 1251, 1255 (3rd Dept 2018) (internal quotation marks and citation omitted); see also People v Abar, 99 NY2d 406, 410 (2003)]. Here, defendant has set forth no evidence of information that [the attorney] obtained about defendant during his prior employment that compromised his representation of defendant and would create a conflict of interest. However, even if he had, defendant’s argument still must fail as we do not find any evidence that this potential conflict of interest operated on the defense because [the attorney] did not make any statements of substance at defendant’s sentencing, and the agreed-upon sentence was imposed without issue [citation omitted].”

Miscellaneous

1st Department

People v Bermudez, 2019 NY Slip Op 00177 (1/10/19) – Not improper for the People to call a detective in rebuttal & elicit his testimony that the girlfriend of one of the victims had told the detective that the boyfriend-victim had told her that defendant was his assailant. (In her testimony on the People’s direct case, the girlfriend told the jury that her boyfriend had identified defendant as the person who shot him.)

“The People properly introduced that testimony to rebut the inferences raised by defense counsel, during cross­-examination of the girlfriend and direct examination of a defense witness, that the girlfriend’s testimony was a recent fabrication invented to obtain a benefit from the People in a pending case against her. The prior consistent statement made to the detective predated the alleged motive to falsify [People v McClean, 69 NY2d 426, 428-30 (1987); People v Baker, 23 NY2d 307, 322-23 (1968)].”

People v Dorsey, 2019 NY Slip Op 01526 (3/5/19) – Order denying defendant’s CPL 440.30(1-a) motion for DNA testing, and his CPL 440.10 motion to vacate the judgment, unanimously affirmed. Defendant’s 1988 convictions of multiple counts of sodomy (now criminal sexual act) were affirmed on his direct appeal. Defendant’s subsequent habeas corpus petition eventually resulted in a new trial being ordered on the ground that defendant was deprived of the effective assistance of counsel because his attorney did not introduce at trial the results of the serological testing that had been performed on the underage complainant’s underwear. “[T]he testing showed the presence of two types of antigens at the site of the semen stain, both of which could have come from the victim, but only one of which could have come from defendant, making it impossible that defendant could have been the sole source of the semen.”

At the 1998 retrial, the People informed the court that the physical evidence, including the underwear, rape kite, and blood and saliva samples, had been destroyed by the NYPD in 1992. The results of the testing that had previously been done on the evidence remained available, and the court rejected defendant’s motion to dismiss the indictment. Defendant was once again convicted, and the First Department affirmed. 300 AD2d 136 (1st Dept 2002).

In 2016, defendant moved for DNA testing of the underwear, arguing that the People failed to establish that the NYPD actually destroyed the evidence. The People submitted documents in opposition, and the 440 court found that the People had met their burden of showing that the potential DNA sample had been destroyed.

The First Department affirmed that finding, “notwithstanding systemic problems that have been identified in the way that the NYPD tracks whether evidence has been destroyed.” Additionally, efendant had failed to establish his burden of showing that, “even had he been able to secure the original evidence and perform DNA testing on it, there [was] a reasonable probability that the verdict would have been different.” “Even if defendant is correct that the People provided insufficient facts about the destruction of the evidence for him to begin an inquiry into whether they acted in bad faith, his effort would have been for naught. That is because [for reasons discussed earlier in the 1st Dept’s decision] DNA testing was likely not to have had a material effect on the outcome at trial.”

2nd Department

People v McLean, 2019 NY Slip Op 02356 (3/27/19) – CPW 2° conviction reversed and indictment dismissed because the People’s amendment of the indictment changed the theory of the prosecution and prejudiced the defendant, contrary to CPL § 200.70 (1).

The original indictment accused the defendant of possessing a loaded weapon on October 20, 2015, at the apartment of his former girlfriend. When the defendant was arrested on October 21, 2015, no weapon was recovered from his person. The subsequent search of the defendant’s residence on October 22, 2015, resulted in the discovery of a loaded weapon. By seeking, on the eve of trial, to amend the indictment to include the days following the purported incident with the former girlfriend, the People changed the theory of their case from the defendant’s actual possession of a weapon, as witnessed and attested to by the former girlfriend, to constructive possession, meaning his exercise of dominion or control over an area of the defendant’s residence where a loaded weapon was found [see People v Covington, 86 AD2d 877 (2d Dept 1982)]. Defense counsel, in opposing the amendment, asserted that he had relied upon the indictment and the [People’s] VDF … in preparing for the case, including defense counsel’s efforts to prove, through time cards and testimony, that it was impossible for the defendant to have been at his former girlfriend’s apartment at the time of the incident on October 20, 2015. As such, defense counsel presented evidence that the defense had been substantially undermined by the amendment of the indictment and that, effectively, he was forced to forgo an alibi-type defense.” For these reasons, the trial court should not have granted the People’s oral application to amend the indictment just before jury selection was about to begin.

4th Department

People v Williams (Timothy), 2019 NY Slip Op 02244 (3/22/19) – Defendant failed to convince the App. Div. that the trial court erred in summarily denying his motion to withdraw his guilty plea on grounds of impermissible prosecutorial conduct and coercion.

  • “There is no support in the record for defendant’s contention that the People committed a Brady violation that induced him to plead guilty.”
  • His statements during the plea colloquy refute his post-plea assertion that the plea was coerced by threats of additional prosecution; indeed, defendant’s own motion papers established he knew, months before pleading guilty, that the People were not pursuing additional charges against him. Moreover, “[t]he fact that the possibility of additional charges may have influenced [a] defendant’s decision to plead guilty is insufficient to establish that the plea was coerced [internal punctuation and citations omitted].”
  • Although the prosecutor mistakenly stated that defendant would qualify for persistent felony offender status, that “is not, in and of itself, dispositive’ of the issue whether defendant’s plea was knowingly and voluntarily entered” [People v Johnson, 24 AD3d 1259, 1259 (4th Dept 2005), quoting People v Garcia, 92 NY2d 869, 870 (1998)].” Among the factors considered here was the fact that County Court promised Williams that it would not sentence him to more than shock probation.

Trial Court

People v George Torres, In this omnibus decision from Washington County, County Court denies the defense request for dismissal due to alleged prosecutorial misconduct, finds “no evidence of prosecutorial misconduct,” and notes that “defense counsel’s motion papers are repelet with more vitrial than one would expect coming from a professional attorney of counsel’s experience and stature.” The court further advised defense counsel not to “utter every insult to cross the transom of his mind.”

Disciplinary & Other Proceedings/Sanctions

1st Quarter 2019

3rd Department

Matter of Attorneys In Violation of Judiciary Law § 468-a (Beth Anne D’Alessandro), 2019 NY Slip Op 01485 (2/28/19) – New Jersey attorney’s “stated intent to seek nondisciplinary resignation were she to be reinstated does not establish good cause for a waiver of the MPRE requirement” for reinstatement where attorney was suspended indefinitely for failure to comply with the attorney registration requirements of Judiciary Law § 468-a for more than 10 years.

Other News From Around the US

Illinois
A former McClean County Assistant State’s Attorney is is facing a disciplinary charge of Unauthorized Practice of Law during the 6 months he continued to work as a prosecutor while under administrative suspension because of his failure to comply with Illinois’ CLE requirements & before he was restored to good standing.

Iowa
The Supreme Court of Iowa has suspended a former local prosecutor from the practice of law for at least 1 year because he “stole a woman colleague’s underpants from her home, rifled through and photographed her undergarments in her bedroom, and rifled through female colleagues’ gym bags at the office to photograph their undergarments, all for his personal sexual gratification.”

Louisiana
The Louisiana Supreme Court suspended a Baton Rouge attorney — who was convicted in July 2016 of simple battery for his aggressive “chest bumping” of District Attorney Brad Burget while the two men were in chambers for a case conference — from the practice of law for 1 year and a day, effective January 30, 2019. The Court noted that this was the lawyer’s 3rd disciplinary proceeding since 2006, when he was first placed on professional probation because of “physical altercations and behaviors.”

Michigan
As per his agreement with Michigan’s Attorney Discipline Board, the Branch County Prosecutor resigned from office and accepted a 180-day suspension from the practice of law rather than proceed with a hearing on allegations he had sexually harassed and otherwise mistreated employees in his own Office, the County’s Circuit Court, and a courthouse agency.

Pennsylvania
The state’s former Attorney General is now disbarred. With the consent of its Office of Disciplinary Counsel, Pennsylvania’s Supreme Court accepted Kathleen Granahan Kane’s “unconditional resignation” from the practice of law, after her direct appeal from trial convictions for perjury and related misdemeanors came to an end in late 2018. Commonwealth v Kane, 188 A.3d 1217 (Super Ct), appeal denied, 197 A.3d 1180 (2018).

The ex-District Attorney of Mercer County, convicted earlier this year of multiple counts of obstruction of justice and official oppression, has been temporarily suspended by Pennsylvania’s Supreme Court, effective April 10.

The former Centre County District Attorney (she lost her bid for re-election in 2017) was suspended by the Supreme Court of Pennsylvania from the practice of law for a year and a day for sending-exchanging text messages (often of an improper ex parte nature) with members of the local judiciary during her tenure as DA & for establishing and maintaining a phony Facebook page for the purpose of collecting information about vendors of bath salts, who later were arrested.

NYPTI Law Updated for 2019