Ethics Watch 2nd Quarter 2019 (August 12, 2019)


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Brady/Giglio/Rosario & Other Discovery Issues

Court of Appeals

People v Ulett, 2019 NY Slip Op 05060 (6/25/19) – The Court (Garcia, J.) unanimously reversed and ordered a new trial because “the People violated their constitutional obligation to disclose a surveillance video that captured the scene at the time of the shooting, including images of the victim and a key prosecution witness,” and “[t]he aggregate effect of the suppression of this evidence undermines confidence in the verdict.”

  • Backdrop:
In March 2008, Ruben Alexandre was fatally shot in front of 48 St. Paul’s Place in Brooklyn. At trial, the People adduced the testimony of two eyewitnesses and another man whose testimony placed Ulett at the scene before and after the shooting in the company of the victim and a third man; to corroborate that witness’s testimony, the People introduced surveillance video footage from the apartment building where defendant lived “which showed an individual generally matching the witness’s description of defendant leave the building minutes before the shooting and return soon thereafter.” The first eyewitness acknowledged on cross-examination that she had only seen a glimpse of the side of the shooter’s face. The key eyewitness, Rashawn Cream, a childhood friend of both the victim and defendant, testified that he was talking with Alexandre when Ulett shot Alexandre at close range. Cream, however, did not come forward until some 10 months later when he was facing robbery and drug sale charges; he subsequently secured a plea agreement with reduced charges, although he told the jury that he had not been promised a lower sentence in exchange for his testimony against Ulett.
“In summation, defense counsel emphasized that there was no video evidence to establish what happened in front of 48 St. Paul’s Place at the time of the shooting. Referencing testimony that the building had surveillance cameras in the lobby, defense counsel emphasized that no video from those cameras had been introduced….” In her rejoinder to this line of argument, the prosecutor said, among other things, “[I]sn’t it common sense that you would have seen that video if there had been a video?”
In fact, there was a video, which was not turned over until Ulett’s appellate counsel made a FOIL request several years after Ulett was convicted and sentenced. At the hearing on the subsequent 440.10 motion, the trial prosecutor “testified that although she had watched the video after presenting the case to the grand jury, she believed it did not constitute Brady material because it did not capture the shooter and the images were too ‘washed-out’ to identify anyone. The prosecutor put the video in a box for ‘irrelevant’ evidence and ‘forgot about it.'”
  • “In New York, where the defense did not specifically request the [withheld] information, the test of materiality is whether there is a reasonable probability that had it been disclosed to the defense, the result would have been different [internal punctuation and citations omitted]. * * * In determining materiality, the ‘question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence’ [citations omitted]. The ‘defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict.’ Defendant need only show that ‘the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict’ [citation omitted].”
Although “reasonable probability” is a somewhat higher threshold than “reasonable possibility,” the Court found the requisite measure of materiality was readily ascertainable here: the video, which “captured the scene at the time of the murder,” “would have set the scene of the murder, identified other potential witnesses, served to impeach eyewitness testimony, and provided a basis for an argument that other suspects might have been involved in the shooting.”
  • “Further, the prosecutor’s statements in summation, which denied the existence of a video, ‘compounded the prejudice to the defendant’ [citation omitted]. These remarks characterized defense counsel’s summation as a desperate attempt to distract the jury from the proof by reference to phantom evidence — when in fact the surveillance video did exist, it had been withheld, and it would have been useful to defendant’s case.”

1st Department

People v Teran, 2019 NY Slip Op 03532 (5/7/19) – Found no merit in defendant’s Brady arguments. “The People made extensive and timely disclosures relating to civil cases filed against two police witnesses, and defendant had ample opportunity to use this material at trial but chose not to do so. Defendant’s main complaint relates to a motion decision by a United States District Judge in one of the disclosed lawsuits, which defendant claims to have a bearing on the officer’s credibility. Although the People did not disclose this particular decision, it was both a matter of public record and readily available to defendant by making an electronic search. Defendant’s claim that additional lawsuits against the testifying officers came to light after defendant’s trial is likewise outside the record before us.”

2nd Department

People v Smith (Shannon), 2019 NY Slip Op 02911 (4/17/19) – Rejected defendant’s contention that the late disclosure of a 911 recording constituted a Brady violation. “The recording of the 911 call made by the unidentified female declarant was disclosed to defense counsel 12 days before the court began taking testimony and, in any event, the contents of the call were inadmissible hearsay, as there was no evidence that the declarant personally observed the incident [see People v Cummings, 31 NY3d 204, 209 (2018)]. Accordingly, the defendant cannot establish either that the People suppressed the evidence or that, even if it was suppressed, that suppression resulted in any prejudice to him.”

People v Sicilianonunez, 2019 NY Slip Op 03630 (5/8/19) – Trial court properly denied defense motion for a mistrial, made after opening statements and prompted by the People’s belated “disclosure of a form which, in the defendant’s view, tended to establish an intoxication defense that he might have employed during questioning at the pretrial Huntley hearing.”

“[I]n response to the late disclosure, the County Court vacated the decision rendered after the pretrial Huntley hearing, directed a second Huntley hearing, offered defense counsel any reasonable adjournment to investigate the issues, informed the parties that it might consider other remedies at a later date, and directed the prosecutor not to have any conversation with her witness before the second Huntley hearing. Following the second Huntley hearing, the court adhered to its original determination.” The trial court’s remedy for the pretrial Rosario violation — a de novo suppression hearing — was wholly proper. See People v Banch, 80 NY2d 610, 619 (1992); People v Pugh, 258 AD2d 674 (2d Dept 1999).

3rd Department

People v Werkheiser, 2019 NY Slip Op 02749 (3rd Dept 4/11/19) – Consolidated appeal from 2016 trial judgment of conviction for Predatory Sexual Assault of a Child (2 counts) and County Court’s 2018 denial, without a hearing, of defendant’s motion to vacate the judgment. Victims were, at the time of the charged offenses (2006-2007) sisters of grade-school age; defendant was their dance instructor and their mother’s lover (the two subsequently married).

“In 2011, as a result of a disclosure by the victims regarding sexual abuse by their mother, the victims were interviewed by investigators at the Binghamton Police Department. In that interview, which was videotaped, the victims stated that they were not abused by defendant. Ultimately, the mother was prosecuted by the Broome County District Attorney’s office. Subsequently, in 2013, after the victims disclosed that they were abused by defendant at the dance studio, the police department in the Village of Waverly was contacted to conduct an investigation. After defendant was indicted in Tioga County based upon the 2013 disclosure, defense counsel filed an omnibus motion accompanied by an affidavit stating, as relevant here, that the victims were previously questioned by the Binghamton police in 2011 and that the victims did not allege any sexual abuse by defendant in that interview. According to an affidavit of Cheryl Mancini, a Tioga County Assistant District Attorney, before the trial, she went to the Broome County District Attorney’s office to ensure compliance with defense counsel’s motion requesting any and all Brady material. During the meeting, the Broome County District Attorney’s office did not provide or advise Mancini of the video. Mancini also met with defense counsel, who told her that he had the full file from the mother’s case in Broome County, but he did not mention the video. Mancini further stated that she did not know or hear of the video until January 2017 when she spoke with Thomas Jackson, a Broome County Special Assistant District Attorney, who was prosecuting the mother in her second trial.”

Held: County Court did not err in summarily denying Werkheiser’s 440.10 motion. The video of the Binghamton PD’s 2011 interviews of the victims was not newly discovered evidence, nor was it Brady material entitling Werkheiser to a new trial. “Although the video is impeachment evidence, defendant did not demonstrate that it was suppressed by the People or that she was prejudiced thereby. [ADA] Mancini’s affidavit established that the video was created during the Broome County investigation, which was completely separate from the Tioga County investigation and prosecution, and that she was not in possession of the video prior to defendant’s trial [see People v Garrett, 23 NY3d 878, 889 (2014); see generally People v Mangarillo, 152 AD3d 1061, 1064 (3rd Dept 2017). The video also cannot be considered suppressed by the People because defense counsel knew, or should have known, about the video [citation omitted]. Also, defendant has failed to show that the video was material — i.e., that there was a reasonable probability that it would have changed the outcome of the trial [citations omitted]. Lastly, County Court did not abuse its discretion in denying defendant’s motion without a hearing because defendant’s motion was not based ‘upon nonrecord facts that are material and, if established, would entitle the defendant to relief” [citations omitted].”

People v Colon-Velazquez, 2019 NY Slip Op 03845 (5/16/19) – Rejected defendant’s Rosario-based claim that a correction officer should not have been allowed to take the stand as a prosecution witness, at trial for promoting prison contraband, “because the audio recording that he received of the correction officer’s testimony given at defendant’s prison disciplinary hearing had gaps in it,” and thereby thwarted meaningful cross-examination of the CO.

“Initially, we disagree with defendant’s characterization that a Rosario violation occurred because ‘statements of witnesses made during [a] prison disciplinary proceeding [are] not within the People’s control and [do] not constitute Rosario material’ [People v Howard, 87 NY2d 940, 941 (1996)]. Even assuming that the audio recording constituted Rosario material, we conclude that County Court’s decision to give an adverse inference instruction, as opposed to precluding the correction officer’s testimony, was not an abuse of discretion [see People v Wheeler, 159 AD3d 1138, 1142 (3rd Dept 2018)].”

Grand Jury

1st Department

People v McKinney, 2019 NY Slip Op 02950 (4/18/2019) – App. Div. reinstated indictment dismissed by trial court on the ground that a police officer — who had not witnessed either incident, but who knew defendant from the area — identified defendant in the surveillance videotapes played for the Grand Jury.

“This testimony was not impermissible and it did not render the grand jury proceedings defective. The detective testified from his personal knowledge. Moreover, unlike trial jurors who can normally observe a defendant in court, grand jurors do not have that means of making a comparison between a videotape and a defendant’s appearance. In so holding, we express no opinion on the admissibility of a similar identification at trial. The ‘exceptional remedy of dismissal’ [People v Huston, 88 NY2d 400, 409 (1996)] was not warranted.”

People v Giamagas, 2019 NY Slip Op 04104 (5/28/19) – Trial court did not err when it denied defendant’s mid-trial motion to dismiss the indictment, contending that the integrity of the grand jury proceeding had been impaired by by materially false testimony. “At trial, the victim explained that he had given incorrect testimony in the grand jury about the contents of a document, as the result of having forgotten a handwritten provision later added to the document. There is no merit to defendant’s claim that this event entitled him to the extraordinary remedy of dismissal. There was no impairment of the grand jury proceeding based on such ‘honestly mistaken’ testimony (see People v Crowder, 44 AD3d 330(1st Dept 2007)], and dismissal was not warranted [citation omitted]. In any event, regardless of whether the victim was mistaken or intentionally untruthful in his grand jury testimony, this was not a case like People v Pelchat, 62 NY2d 97 (1984), where the indictment was based solely on perjured testimony.”

2nd Department

People v Arevalo, 2019 NY Slip Op 03610 (5/2/19) – People’s appeal from dismissal of indictment, charging defendant with Murder 2, vehicular manslaughter, and related offenses, on the ground that prosecutorial misconduct in the Grand Jury warranted dismissal. App. Div. reversed and reinstated the indictment.

“The prosecutor was not obligated to present evidence that the defendant now claims to be favorable to the defense, as such evidence was not entirely exculpatory and would not have materially influenced the grand jury’s investigation [see, e.g., People v Mitchell, 82 NY2d 509, 515 (1993)]. Accordingly, the prosecutor’s conduct with regard to this allegedly exculpatory evidence did not violate her ethical obligations [see generally Rules of Professional Conduct, 22 NYCRR 1200.0]. Further, the prosecutor properly presented expert testimony to the grand jury on a matter that was beyond the ken of the average juror [citations omitted]. Finally, the defendant was not entitled to pre-indictment discovery of Brady material [see People v Lancaster, 69 NY2d 20, 26 (1986), cert denied 480 US 922 (1987); People v Reese, 23 AD3d 1034, 1035-1036 (4th Dept 2005)].

People v Sicilianonunez, 2019 NY Slip Op 03630 (5/8/19) – Even if defendant had preserved his argument that Grand Jury proceedings were rendered defective owing to absence of instruction on defense of intoxication, dismissal would not be ordered. “‘Like a mitigating defense, intoxication merely reduces the gravity of the offense by negating an element,’ and a prosecutor “is required to instruct the grand jury as to complete defenses, but not as to those defenses that may only reduce the degree or gravity of the crime…[quoting from, and citing to, People v Harris, 98 NY2d 452, 475 (2002)].”

3rd Department

People v Moseley, 2019 NY Slip Op 03408 (5/2/19) – People conceded that Moseley’s CPW conviction under a second superceding indictment, filed following the declaration of a mistrial on the prior superceding indictment, should be reversed. When County Court declared the mistrial, it “did not dismiss the superseding indictment or authorize the People to re-present new charges to a grand jury. Accordingly, the People were limited to retrying defendant upon the superseding indictment[;] the second superseding indictment was a nullity [citations omitted], [and] ‘any action or consequence that flowed from its filing … was necessarily a nullity as well’ [People v Frederick, 14 NY3d 913, 916 (2010).” Third Department therefore reversed the conviction and remitted the matter “for further proceedings on the first superseding indictment.”

People v Henriquez (Yohani), 2019 NY Slip Op 04503 (6/6/19) – Indictment reinstated upon People’s appeal to App. Div. from County Court’s order dismissing the indictment on the ground that the integrity of the grand jury proceeding had been impaired due to the People’s “inadequate inquiry” of a grand juror’s potential bias. The grand juror in question was a retired school teacher who had not seen the testifying witness, a former student, in years. When asked if there was anything else that would affect his ability to be fair and impartial, the grand juror declared “No.”

“In our view, the relationship between the grand juror and the witness was not a close relationship so as to give rise to the possibility of prejudice [see People v Richardson, 132 AD3d 1239, 1241 (4th Dept 2015)]. Furthermore, although the prosecutor’s voir dire of the grand juror was brief, we are satisfied that, based upon his unequivocal response thereto, the grand juror’s impartiality was not compromised [citations omitted]. We also note that the grand jurors unanimously voted to indict defendant and, therefore, it is speculative to conclude that the grand juror at issue might have influenced the other grand jurors [see People v Wilkinson, 166 AD3d 1396, 1398 (3rd Dept 2018)]. Additionally, our review of the grand jury minutes reveals that legally sufficient evidence was presented to the grand jury [citation omitted]. Accordingly, we find that the exceptional and drastic remedy of dismissal of the indictment was not warranted under the circumstances of this case, and County Court erred in granting defendant’s motion.”

4th Department

People v Hicks, 2019 NY Slip Op 03522 (5/3/19) – Trial court properly denied motion for dismissal of the indictment on the ground that the People failed to provide reasonable notice of the grand jury proceedings. “A defendant does not have to be given a specific time period for notice; rather, ‘reasonable time’ must be accorded to allow a defendant an opportunity to consult with [defense] counsel and decide whether to testify before a Grand Jury’ [People v Sawyer, 96 NY2d 815, 816 (2001)]. * * * [T]he People gave defendant and his attorney 23 hours’ notice that the matter was to be presented to the grand jury, which, under the specific circumstances of this case, constituted reasonable notice [People v Gelling, 163 AD3d 1489, 1491 (4th Dept. 2018)]. Moreover, inasmuch as the indictment was not filed until approximately two months later and during that time ‘neither defendant nor defense counsel notified the People that defendant intended to testify before the grand jury,’ we conclude that ‘defendant was not deprived of the right to testify’ (id.).”

People v Ballowe, 2019 NY Slip Op 04566 (6/7/19) – Defendant’s appeal from plea conviction of Leaving the Scene of an Incident Resulting in Serious Injury Without Reporting [VTL § 600 (2) (a), (c)(i)] held in abeyance & matter remitted to the Supreme Court.

  • Proper for court below to grant the People’s CPL 190.75 (3) application to re-present the matter to a second Grand Jury, after a “no bill” had been returned, “on the ground that a witness, who had offered false testimony before the first grand jury, had recently agreed to cooperate with the People and testify truthfully.” Such averred truthful testimony was “new evidence” which may give rise to a second presentment.
  • But the Supreme Court should have ruled on that part of defendant’s omnibus motion “seeking to have the court compare the evidence from the two grand jury proceedings ‘to determine whether the prosecutor ha[d], in fact, presented the promised new evidence’ to the second grand jury [People v Martin, 71 AD2d 928, 929 (2d Dept 1979}; see also People v Dykes, 86 AD2d 191, 195 (2d Dept 1982).” Because the App. Div. does not have the power to review issues either decided in an appellant’s favor, or not ruled upon, by the trial court, “we cannot deem the court’s failure to rule on that part of] the motion as a denial thereof” (People v Hymes, 160 AD3d 1386, 1387 [4th Dept 2018] [internal punctuation marks omitted]; see People v White, 134 AD3d 1414, 1415 (4th Dept 2015)]. We therefore hold the case, reserve decision, and remit the matter to Supreme Court for a determination whether the People, in fact, presented new evidence to the second grand jury and, if not, whether dismissal of the indictment is warranted on that ground [see Martin, 71 AD2d at 929 (other citations omitted)].”

Voir Dire

3rd Department

People v Kirkley, 2019 NY Slip Op 03703 (5/9/19) – In affirming the drug convictions, the Third Department ruled, inter alia, that the trial court did not err in denying the defendant’s Batson challenges concerning two prospective jurors, both African-Americans, struck by the People. The prosecutor offered race-neutral explanations, and defense counsel failed to then “persuade the court that the stated reasons were pretextual and to make a record that would support that conclusion [see People v Smocum, 99 NY2d 418, 422 (2013); People v Acevedo, 141 AD3d 843, 846 (3rd Dept 2016).” The race-neutral reasons given by the trial prosecutor:

  • Prospective juror #17 was emotionally close to an incarcerated relative; described herself as “shocked” by how her relative’s prosecution was handled; had struggled generally to answer questions; and perceptibly hesitated before saying she could be impartial. Prosecutor distinguished her “from another prospective juror who also had an incarcerated relative, but who was not close to the relative and had strongly confirmed that she could be impartial.”
  • Prospective juror # 19 “had worked with large numbers of drug addicts in her role as a human services counselor,” and “the People stated that they intended to strike any prospective juror who was ‘overly sympathetic’ or who had ‘an involved history with drug users.'”

4th Department

People v Albert, 2019 NY Slip Op 03227 (4/26/19) – Trial prosecutor offered race-neutral reasons in response to defense counsel’s Batson challenge. The father and a brother of one prospective jury had criminal convictions [citations omitted]. The second prospective juror disclosed that he had recently read two books by a writer the prosecutor described as ‘a black revolutionary-type writer,’ who had ‘very antigovernment [sic], anti-law-and-order type views.’ Contrary to defendant’s contention, the prospective juror’s ‘expos[ure] … to anti-police and anti-establishment sentiments’ was a race-neutral reason for the exclusion of that prospective juror [People v Funches, 4 AD3d 206, 207 (1st Dept 2004)].”

Opening

1st Department

People v Folk, 2019 NY Slip Op 04321 (6/4/19) – Grand Jury testimony “of a witness indicating that defendant fired an errant shot that struck a bystander as defendant and a companion fled from another group following a verbal altercation” should not have been read into the record as part of the People’s direct case and relied upon by the trial prosecutor in summation.

As the People acknowledged on defendant’s appeal, “the testimony was not admissible under the past recollection recorded exception to the hearsay rule, because the witness did not testify at trial that the grand jury testimony ‘correctly represented his knowledge and recollection when made’ [citations omitted] and was not admissible for impeachment purposes under CPL 60.35 because the witness’s trial testimony that he could not remember the relevant events did not ‘affirmatively damage[] the case of the party calling him'[citation omitted].”

Error deemed harmless with respect to CPW 2 conviction [possession of loaded firearm outside home/place of business – Penal Law 265.03 (3)] — but not harmless re convictions for Assault 1 and CPW 2 under subd. 1 of Penal Law 265.03 (possession of weapon with intent to use unlawfully against another). App. Div. ordered new trial of those 2 counts and resentencing on the conviction it left standing.

People v Benjamin, 2019 NY Slip Op 04764 (6/13/19) – Trial court did not err in declining to dismiss the indictment, charging defendant with promoting prison contraband, because of the belated, mid-trial production disclosure of NYC Department of Correction reports. “The prosecutor had made diligent efforts to obtain this Rosario material sooner, but it had been misfiled by a correction officer. The court provided a suitable remedy when it gave counsel a two-day adjournment to review the material before cross-examining certain witnesses, along with the opportunity to recall other witnesses for further cross-examination based on the belatedly disclosed material. Accordingly, defense counsel received this material when it was still useful because he was able to cross-examine the applicable witnesses effectively…, and defendant has not shown any substantial prejudice from the delay in disclosure…. [citations omitted].”

“The court also providently exercised its discretion when it declined to strike the testimony of a correction officer (again the only remedy requested) based on his belated disclosure of a calendar book entry. The sparse entry contained information already known to defendant, namely, the times and locations of the officer’s duties on the day of the incident. Defendant was able to cross-examine the officer about the entry, and there was likewise no prejudice.”
“To the extent defendant is claiming that the alleged nondisclosure of a videotape also constituted a Rosario violation, we find that the record fails to support defendant’s assertion that such a videotape ever existed.”

2nd Department

People v Taylor, 2019 NY Slip Op 03823 (5/15/19) – App. Div. agreed with defendant that

  • his 4th Amendment rights were violated by admission of historic cell site information obtained without a warrant. “The trial court’s order requiring release of the CSLI under the Stored Communications Act [18 USC § 2703(d)], which order made no express finding of probable cause, was not effectively a warrant supported by probable cause [citation omitted].”
  • “the People improperly introduced evidence that he invoked his rights to remain silent and to counsel… [see People v Dashnaw, 85 AD3d 1389, 1392 (3rd Dept 2011); People v Romero, 54 AD3d 781 (2d Dept 2008).”

But it concluded that the errors, “individually and cumulatively,” should not give rise to reversal “because the evidence of the defendant’s guilt was overwhelming, and there was no reasonable possibility that the errors might have contributed to the defendant’s convictions [citations omitted].”

People v Juarez, 2019 NY Slip Op 03990 (5/22/19) – The trial court “should not have allowed the People to elicit testimony from one of the eyewitnesses that, while he was testifying, he felt intimidated by a courtroom spectator who allegedly was a member of the codefendant’s gang [see, e.g., People v Serrano,166 AD3d 1020, 1021 (2d Dept 2018)]. However, this error was harmless, as there was overwhelming evidence of the defendant’s guilt, and no significant probability that the alleged error contributed to his conviction [citations omitted].”

People v Ramirez (Ricardo), 2019 NY Slip Op 03996 (5/22/19) – At trial on charges of assault, criminal contempt and harassment, the People were properly permitted to adduce evidence of defendant’s prior bad acts against the complainant. “This evidence was relevant background material regarding the defendant’s relationship with the complainant, to explain the issuance of a temporary order of protection, and as evidence of the defendant’s motive and intent in the commission of the charged crimes [citing to, inter alia, People v Bittrolff, 165 AD3d 690, 691 (2d Dept 2018), and People v Hanson, 30 AD3d 537, 538 (2d Dept 2006).”

People v Durrant, 2019 NY Slip Op 04716 (6/12/19) – Refusing to order a new trial on the ground that the People should not have been permitted to “introduce evidence at the trial of three alleged [but uncharged] incidents of sexually inappropriate conduct by the defendant involving” the child victim who testified to the defendant’s underlying the first degree sexual abuse count of the indictment. “[T]hat evidence provided necessary background information about the nature of the relationship between the defendant and the child, and explained the child’s conduct[;] the probative value of the evidence outweighed the prejudice to the defendant[;] and “prejudice to the defendant was minimized by the court’s limiting instructions [all citations omitted].”

3rd Department

People v Dunham, 2019 NY Slip Op 03409 (5/2/19) – Defendant convicted of sexual acts committed against physically helpless victim, who was a weekend guest in the home shared by defendant and his significant other. In unanimously affirming the verdict, the App. Div. court held

  • the prosecutor was properly permitted to ask leading questions of the significant other, who was called to the stand during the People’s case-in-chief, because the woman “was defendant’s long-term romantic partner, her testimony differed from what she had previously told the prosecutor about the incident and County Court noted her recalcitrant demeanor on the stand [citations omitted].”
  • the prosecutor did not err in eliciting testimony from the victim regarding her morning-after disclosure to the significant other, who had had testified to her conversation with the victim without objection. The SO’s “account was less detailed but not radically different from that of the victim, and the conversation explained the actions of the two women and defendant as the day unfolded. There was, as a result, nothing inappropriate in allowing the victim to provide her version of it [citations omitted].”

Direct

1st Department

People v Folk, 2019 NY Slip Op 04321 (6/4/19) – Grand Jury testimony “of a witness indicating that defendant fired an errant shot that struck a bystander as defendant and a companion fled from another group following a verbal altercation” should not have been read into the record as part of the People’s direct case and relied upon by the trial prosecutor in summation.

As the People acknowledged on defendant’s appeal, “the testimony was not admissible under the past recollection recorded exception to the hearsay rule, because the witness did not testify at trial that the grand jury testimony ‘correctly represented his knowledge and recollection when made’ [citations omitted] and was not admissible for impeachment purposes under CPL 60.35 because the witness’s trial testimony that he could not remember the relevant events did not ‘affirmatively damage[] the case of the party calling him'[citation omitted].”

Error deemed harmless with respect to CPW 2 conviction [possession of loaded firearm outside home/place of business – Penal Law 265.03 (3)] — but not harmless re convictions for Assault 1 and CPW 2 under subd. 1 of Penal Law 265.03 (possession of weapon with intent to use unlawfully against another). App. Div. ordered new trial of those 2 counts and resentencing on the conviction it left standing.

People v Benjamin, 2019 NY Slip Op 04764 (6/13/19) – Trial court did not err in declining to dismiss the indictment, charging defendant with promoting prison contraband, because of the belated, mid-trial production disclosure of NYC Department of Correction reports. “The prosecutor had made diligent efforts to obtain this Rosario material sooner, but it had been misfiled by a correction officer. The court provided a suitable remedy when it gave counsel a two-day adjournment to review the material before cross-examining certain witnesses, along with the opportunity to recall other witnesses for further cross-examination based on the belatedly disclosed material. Accordingly, defense counsel received this material when it was still useful because he was able to cross-examine the applicable witnesses effectively…, and defendant has not shown any substantial prejudice from the delay in disclosure…. [citations omitted].”

“The court also providently exercised its discretion when it declined to strike the testimony of a correction officer (again the only remedy requested) based on his belated disclosure of a calendar book entry. The sparse entry contained information already known to defendant, namely, the times and locations of the officer’s duties on the day of the incident. Defendant was able to cross-examine the officer about the entry, and there was likewise no prejudice.”
“To the extent defendant is claiming that the alleged nondisclosure of a videotape also constituted a Rosario violation, we find that the record fails to support defendant’s assertion that such a videotape ever existed.”

2nd Department

People v Taylor, 2019 NY Slip Op 03823 (5/15/19) – App. Div. agreed with defendant that

  • his 4th Amendment rights were violated by admission of historic cell site information obtained without a warrant. “The trial court’s order requiring release of the CSLI under the Stored Communications Act [18 USC § 2703(d)], which order made no express finding of probable cause, was not effectively a warrant supported by probable cause [citation omitted].”
  • “the People improperly introduced evidence that he invoked his rights to remain silent and to counsel… [see People v Dashnaw, 85 AD3d 1389, 1392 (3rd Dept 2011); People v Romero, 54 AD3d 781 (2d Dept 2008).”

But it concluded that the errors, “individually and cumulatively,” should not give rise to reversal “because the evidence of the defendant’s guilt was overwhelming, and there was no reasonable possibility that the errors might have contributed to the defendant’s convictions [citations omitted].”

People v Juarez, 2019 NY Slip Op 03990 (5/22/19) – The trial court “should not have allowed the People to elicit testimony from one of the eyewitnesses that, while he was testifying, he felt intimidated by a courtroom spectator who allegedly was a member of the codefendant’s gang [see, e.g., People v Serrano,166 AD3d 1020, 1021 (2d Dept 2018)]. However, this error was harmless, as there was overwhelming evidence of the defendant’s guilt, and no significant probability that the alleged error contributed to his conviction [citations omitted].”

People v Ramirez (Ricardo), 2019 NY Slip Op 03996 (5/22/19) – At trial on charges of assault, criminal contempt and harassment, the People were properly permitted to adduce evidence of defendant’s prior bad acts against the complainant. “This evidence was relevant background material regarding the defendant’s relationship with the complainant, to explain the issuance of a temporary order of protection, and as evidence of the defendant’s motive and intent in the commission of the charged crimes [citing to, inter alia, People v Bittrolff, 165 AD3d 690, 691 (2d Dept 2018), and People v Hanson, 30 AD3d 537, 538 (2d Dept 2006).”

People v Durrant, 2019 NY Slip Op 04716 (6/12/19) – Refusing to order a new trial on the ground that the People should not have been permitted to “introduce evidence at the trial of three alleged [but uncharged] incidents of sexually inappropriate conduct by the defendant involving” the child victim who testified to the defendant’s underlying the first degree sexual abuse count of the indictment. “[T]hat evidence provided necessary background information about the nature of the relationship between the defendant and the child, and explained the child’s conduct[;] the probative value of the evidence outweighed the prejudice to the defendant[;] and “prejudice to the defendant was minimized by the court’s limiting instructions [all citations omitted].”

3rd Department

People v Dunham, 2019 NY Slip Op 03409 (5/2/19) – Defendant convicted of sexual acts committed against physically helpless victim, who was a weekend guest in the home shared by defendant and his significant other. In unanimously affirming the verdict, the App. Div. court held

  • the prosecutor was properly permitted to ask leading questions of the significant other, who was called to the stand during the People’s case-in-chief, because the woman “was defendant’s long-term romantic partner, her testimony differed from what she had previously told the prosecutor about the incident and County Court noted her recalcitrant demeanor on the stand [citations omitted].”
  • the prosecutor did not err in eliciting testimony from the victim regarding her morning-after disclosure to the significant other, who had had testified to her conversation with the victim without objection. The SO’s “account was less detailed but not radically different from that of the victim, and the conversation explained the actions of the two women and defendant as the day unfolded. There was, as a result, nothing inappropriate in allowing the victim to provide her version of it [citations omitted].”

Cross-examination

2nd Department

People v Walters, 2019 NY Slip Op 03632 (5/8/19) – Conviction reversed and new trial ordered because the prosecutor repeatedly violated strictures of Sandoval ruling, precluding cross-examination as to facts underlying defendant’s two prior felony convictions. By virtue of the improper cross-examination, the jury “in this residential burglary case involving DNA evidence [learned] that the defendant had a prior arrest and conviction for a residential burglary involving DNA evidence.”

The Second Department rejected the People’s initial argument on appeal that Walters had opened the door to the improper cross-examination, which had not been preceded by the prosecutor asking the trial court to amend its original Sandoval ruling. Nor could the error be deemed harmless — even though the trial court later gave “clear and forceful limiting instructions” — as “it was probable that the jury drew an improper conclusion of propensity [People v Sandoval, 34 NY2d 371, 377 (1974)].”
Furthermore, “had the jurors not heard the prejudicial details of the defendant’s prior criminal record, they may have been more receptive to his testimony providing an alternative explanation for why his DNA was found at the scene [citations omitted].”

Summation

2nd Department

People v James, 2019 NY Slip Op 05150 (6/26/19) – “While it was improper for the prosecutor to state that, but for the police work, ‘this gun would still be on the streets today,’ the [trial court] promptly instructed the jury to disregard that comment [see People v Baker, 14 NY3d 266, 274 (2010)].”

4th Department

People v Farrington, 2019 NY Slip 03237 (4/26/19) – Defendant, an inmate at Attica Correctional Facility, convicted at trial of second degree assault for the slashing of a fellow inmate. In affirming the conviction, the App. Div. rejected, inter alia, Farrington’s claim that the prosecutor’s summation denied him a fair trial:

“In his summation, defense counsel informed the jurors that the trial had taken them ‘into a very strange environment, an environment that’s foreign to all of us. State prison is a violent, unpredictable place.’ After noting the absence of the victim from the trial, defense counsel invited the jurors to ‘speculate about why [the victim] was not [t]here.’ In response, the prosecutor asked the jurors to use their ‘common sense’ to determine the reasons that the victim may not have wanted to cooperate with the trial, noting that testimony had established that the victim was still incarcerated on the same cell block in the same prison, i.e., an environment that defense counsel had described as strange, foreign and violent. Contrary to defendant’s contentions, we conclude that the prosecutor’s comments concerning the failure of the victim to testify were a fair response to the summation of defense counsel…, and that the prosecutor did not improperly suggest that any uncharged crimes had been committed by defendant…. We further conclude that the prosecutor did not act as an unsworn witness inasmuch as the prosecutor did not present his opinion as to why the victim did not appear in court to testify.” [Internal punctuation and case citations omitted. ]

People v Vick (Tony), 2019 NY Slip Op 04853 (6/14/19) – Expressly rejected preserved contentions that prosecutorial misconduct had denied defendant a fair trial:

  • “The prosecutor’s use of a jigsaw puzzle visual on summation to explain the People’s burden of proof and reasonable doubt was not improper (see generally People v Barnes, 50 NY2d 375, 380-381 [1980]).”
  • The trial prosecutor should not have remarked “at the beginning of his summation that he declined to object during defense counsel’s summation, not because he agreed with everything that defense counsel said, but because he thought that it was important that the jury “hear everything that [defense counsel] ha[d] to say.’ That remark implied that, if defense counsel were to object during the prosecutor’s summation, then defense counsel would be trying to keep information from the jury, and was an improper attempt to discourage defense counsel from objecting during the prosecutor’s summation. We do not condone that type of conduct, but we nevertheless conclude that the improper remark was not so egregious as to deprive defendant of a fair trial [citation omitted].”

Miscellaneous

1st Department

People v Taylor, 2019 NY Slip Op 02822 (4/16/19) – “The People offer no excuse for more than one year of the delay in defendant’s sentencing, a period that began when the prosecution received actual notice, provided by defense counsel, that defendant was in custody in another state and wished to be produced for sentencing on this case. Therefore, notwithstanding prior delays caused by defendant, we find that the delay attributable to the People was unreasonably long. Thus, the sentencing court should have granted defendant’s motion to dismiss the indictment pursuant to CPL 380.30(1) on the ground of delay in sentencing (see People v Drake, 61 NY2d 359 (1984)].”

Disciplinary & Other Proceedings/Sanctions

3rd Department

In May, the Third Department suspended, effective immediately, more than 2,300 lawyers from the practice of law who had failed to comply — for 2 or more, consecutive biennial periods (i.e., at least 4 years) — with the attorney registration requirements of Judiciary Law § 468-a and Part 118 of the Rules of the Chief Administrator of the CourtsMatter of Attorneys In Violation of Judiciary Law § 468-a, 2019 NY Slip Op 03883 (5/16/19).

Other News From Around the US

Kentucky
The Sixth Circuit Court of Appeals reversed two drug dealers’ convictions on the ground of prosecutorial misconduct in the questioning of witnesses and in summation. The AUSA vouched for the government’s witnesses; questioned one of the defendant’s religious practices; and in summation, held that defendant up for scorn because of his prayers to “a false idol,” in violation of the one of the Ten Commandments.

Pennsylvania
The former District Attorney of Mercer County — whose license to practice law was temporarily suspended in April, following his conviction of multiple counts of obstruction of justice and official oppression — has now been disbarred by the Supreme Court of Pennsylvania. The May 30, 2019 order was entered with his consent.

NYPTI Law Updated for 2019