Ethics Watch 4th Quarter 2019


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The Right Thing

Code of Conduct

2019 Criminal Justice Reforms

4th Q 2019 New York State Ethics Decisions

Brady/Giglio/Rosario & Other Discovery Issues

Court of Appeals

People v Rong He, 2019 NY Slip Op 07477 (10/17/19) – By a unanimous memorandum decision, the Court reversed and ordered a new trial of the second degree assault and CPW counts on the ground that the People’s declination to “provide defendant with meaningful access to favorable witnesses” constituted a Brady violation.

“The owner of the nightclub where the crime occurred told the police that he saw two people approach one of the victims and strike him with a beer bottle, and even identified someone other than defendant as one of those assailants. Another witness arguably corroborated this description when he called 911. According to a sprint report, the caller claimed that two men ‘stated that they were going to come back with a gun when leaving location.’ These accounts, if true, would have directly contradicted the People’s theory of the case, and therefore access to the witnesses who made them was clearly favorable to the defense (see People v Garrett, 23 NY3d 878, 886 [2014]).
“The People objected to defendant’s pre-trial request for the direct disclosure of the witnesses’ contact information, and instead offered to provide the witnesses with defense counsel’s information. Yet this approach would not have provided defendant with adequate means for defense counsel to investigate those witnesses’ statements. Furthermore, at the time of the request, the People did not bring forth any evidence that defendant presented a risk to the requested witnesses. Consequently, there was no apparent reason at that time for implementing protective measures or otherwise insulating the contact information from disclosure in the face of defendant’s clear ‘right . . . to discover a potentially material witness’ (People v Andre W., 44 NY2d 179, 186 [1978]; see also CPL 240.50 [1] [allowing the issuance of a protective order upon a showing of “good cause,” including a “substantial risk of physical harm” or “intimidation”]). Accordingly, under the circumstances of this case, the People’s refusal to disclose the contact information, or to provide any means for defense counsel to contact the witnesses other than through the prosecution itself, is tantamount to suppression of the requested information [citation omitted].”

The Court concluded that suppressed information was material, the third prong of a successful Brady claim. See, e.g., People v Giuca, 33 NY3d 462, 473 (2019).

“Although the People presented other evidence of defendant’s guilt, the only witness who identified defendant at trial initially told the police that he did not see the perpetrator’s face. Considering that the nightclub owner provided the police with the name of another possible assailant, and based on the other evidence presented at trial, it is clear that access at least to him could have allowed defendant to develop additional facts, which in turn could have aided him in establishing additional or alternative theories to support his defense. Given the substance of the nightclub owner’s statements and the nature of the People’s case, we cannot say—under our less demanding standard—that there was no ‘reasonable possibility’ that the defense’s investigation of the witnesses would not have affected the outcome of defendant’s trial [People v McCray, 23 NY3d 193, 198 (2014); see also Andre W., 44 NY2d at 186-188).

1st Department

People v McGhee (Darrin), 2019 NY Slip Op 09116 (12/19/19) – App. Div. reversed (4-1) trial court’s denial, following a hearing, of defendant’s CPL 440.10 motion to vacate the 2015 murder conviction & ordered a new trial, primarily because it concluded there had been a Brady violation. Both the majority and dissenting opinions are lengthy and include detailed facts. But here are the most essential facts:

  • The defense had made a pretrial demand for all witness statements.
  • Several months after defendant’s trial, the trial prosecutor “received an inter-office email attaching a report from a detective who had interviewed an eyewitness to the shooting. The ADA and another prosecutor had themselves interviewed the witness [some 2 years] before the trial, having learned that a man who had been arrested for a drug sale near the Polo Grounds told a detective that he had seen the Philips shooting. The prosecutors spoke to the eyewitness in the detective’s presence, and no one took notes. * * * The ADA concluded that the statement was ‘cumulative” and did not disclose it to the defense. However, after receiving the email, he notified defendant’s trial counsel about the witness, and attached the report, which he stated he had not known had ever been created.” (The text of the report is then laid out in the majority opinion.)
  • “Defendant’s appellate counsel met with the ADA and the eyewitness at the District Attorney’s office. The witness refused to provide his full name, and his recollection of the shooting differed from his earlier statement.”
  • In support of the subsequently filed 440.10 motion, “[d]efendant’s trial lawyer submitted an affirmation in which he explained how timely disclosure of the information would have affected his preparation of the defense, including a misidentification defense. His investigator also submitted an affidavit in which he stated that timely disclosure would have been valuable because the statement contained ‘several strong leads’.”
  • The trial court denied the motion, concluding that, in light of the overwhelming evidence adduced at trial, disclosure of this witness’s statement would not have resulted in a different verdict.

The People acknowledged that the first 2 prongs of a Brady violation [see, e.g., Strickler v Greene, 527 US 263, 281-282 (1999); People v Garrett, 23 NY3d 878, 884 (2014)] had been satisfied since the undisclosed witness statement “could have been used to impeach” the one eyewitness who testified at defendant’s trial. The First Department rejected the People’s arguments as to why the statement in question was not “material” under Brady jurisprudence.

  • “The test for materiality in this case is relaxed, because defendant specifically requested witness statements. Accordingly, all that [McGhee] to establish was that there exists a ‘reasonable possibility’ (not probability) that the verdict would have been different had the material not been suppressed [citation omitted].”
  • As in People v Rong He, 34 NY3d 956 (2019), there was just one eyewitness who testified at trial, and her credibility was “a pivotal consideration.”
  • The undisclosed witness statement “suggested an alternative theory about who killed [the victim].” And the Court of Appeals — in Rong He and People v Ulett, 33 NY3d 512 (2019) — has made it clear that the defendant need not “establish any degree of probability that such an inquiry would have borne fruit” in order demonstrate the suppressed statement was “material.” The First Department also pointed out that the Ulett Court noted, “At a minimum, the presence of unidentified witnesses, at least one of whom was only a few feet away when the shots were fired, could have been used by the defense to argue that the police failed to conduct a thorough investigation.” 33 NY3d at 521.

Lastly, even if the materiality prong of the Brady test was not met, the majority was of the view that the prosecution’s failure to produce the witness statements must be considered in tandem with trial errors to which defendant objected, e.g., the trial court should not have admitted evidence as to the testifying eyewitness’s identification of defendant in the surveillance video that the detective showed her. Drawing upon People v Crimmins, 36 NY2d 230, 238 (1975), the majority concluded that the cumulative effect deprived McGhee of the “self-standing” right to a fair trial that “proof of guilt, however overwhelming, can never be permitted to negate.”

2nd Department

People v Hubsher, 2019 NY Slip Op 07416 (10/16/19) – App. Div. rejected all of this defendant’s arguments for reversal of his trial convictions for rape and criminal sexual act in the third degrees. A Brady claim was among his unsuccessful challenges to the judgment of conviction.

“The defendant’s contention that the late disclosure of the complainant’s text messages constituted a Brady violation is unpreserved for appellate review and, in any event, without merit. The text messages were disclosed to the defendant in February 2015, more than one year before the trial began in March 2016, and those text messages were used by defense counsel to cross-examine the complainant during trial. There is no indication that any delay in disclosure of the text messages prejudiced the defense such that there was ‘a reasonable possibility that the outcome of the trial would have differed had the evidence been produced’ at an earlier time [People v Scott, 88 NY2d 888, 891 (1996); see People v Tripp, 162 AD3d 691, 692-693 (2d Dept 2018); other citations omitted]. The People’s failure to disclose the text messages in unredacted form, so as to show the identities of the individuals with whom the complainant was corresponding, did not violate Brady. The defendant failed to demonstrate that the identities of those individuals were exculpatory or impeaching, and that their testimony would have been admissible … and relevant …, given that the crimes with which the defendant was charged were premised upon the complainant’s incapacity to consent to the sexual acts that occurred…” [citations omitted].

People v Williams (Edward), 2019 NY Slip Op 07627 (10/23/19) – In affirming this defendant’s convictions for, inter alia, Murder 1 and kidnapping, the Second Dept rejected his contention that he should be awarded a new trial because of the People’s belated disclosure of evidence pertaining to latent fingerprints found at the scene.

“Where a party fails to timely comply with a discovery demand, ‘the trial court has discretion to impose a broad range of sanctions, including preclusion’ [People v O’Brien, 140 AD3d 1325, 1327 (3rd Dept 2016); see People v Jenkins, 98 NY2d 280, 284 (2002)]. Here, the court precluded the People from using the fingerprint evidence in their case-in-chief and only allowed the People to introduce it on their rebuttal case after the defendant testified to his non-participation in the crime. The fingerprint evidence did not directly contradict the defense theory of non-participation in the crime [see Jenkins, 98 NY2d at 284-285]. Further, the court afforded the defense time to prepare for the testimony of the People’s witness as to the fingerprint evidence and granted the defendant’s application to retain a fingerprint expert. Under these circumstances, the court’s determination to preclude the People from using the evidence in their case-in-chief but to allow them to introduce the fingerprint evidence on their rebuttal case was an appropriate remedy (see Jenkins, 98 NY2d at 284-285; People v Pham, 118 AD3d 1159, 1161-1162 (3rd Dept 2014).”

People v Breland (Daquan), 2019 NY Slip Op 08686 (12/4/19) – “There is no evidence that the prosecution was aware of the $2,000 reward at the time of the defendant’s trial, as the identity of individuals providing information to, and collecting rewards from, Crime Stoppers is kept confidential. Moreover, it is clear that the witness received substantial benefits of approximately $12,000 in exchange for his cooperation in the case against the defendant and that this information was disclosed to the defendant. The defendant engaged in extensive cross-examination of the witness regarding this issue, as well as that witness’s extensive criminal history, current pending charges, and inconsistent statements regarding the shooting. Under these circumstances, there is no reasonable probability that additional cross-examination of that witness concerning the $2,000 reward would have yielded a different result and, therefore, reversal is not required on this ground [see People v Fuentes, 12 NY3d 259, 263 (2009); People v Portilloaguilar, 164 AD3d 1376 [2d Dept 2018).].”

3rd Department

People v Houze, 2019 NY Slip Op 53938 (11/27/19) – Court rejected defendant’s claim that a new trial should be ordered because the People failed to turn over “(1) text messages between two police officers, (2) a call ticket, which noted the times that the officers arrived and left the victim’s residence, and (3) initial notes made by Kristin Pulcher, a police officer involved in the investigation.”

“As to the text messages between the two police officers, both officers testified at trial and explained that pictures were sent from one officer to another without any accompanying text. At trial, defendant conceded that the People had disclosed the pictures early on in discovery. As such, defendant was not prejudiced because he already had the relevant information. As to the nondisclosure of Pulcher’s initial notes, testimony at trial established that the notes were memorialized into her incident report. Defendant was in receipt of the incident report and extensively cross-examined Pulcher about the contents of that report; accordingly, defendant was not prejudiced by this nondisclosure [citations omitted]. As to the call ticket, which noted the times that officers arrived and left the victim’s residence, * * * the timing of the officers’ arrival and departure from the victim’s residence is completely irrelevant to defendant’s alibi, as he had already been arrested by the time the officers searched the victim’s home. Under these circumstances, the People’s admitted nondisclosure of Rosario materials does not require reversal because there is not a reasonable possibility that the nondisclosure contributed to the verdict [see People v Auleta, 82 AD3d 1417, 1421 (3rd Dept 2011); People v Avery, 80 AD3d 982, 985 (3rd Dept 2011)]. Likewise, because no prejudice arose from the nondisclosure nor does the record establish that the nondisclosed materials were favorable to defendant, we do not find that the Rosario violations constitute Brady violations [citations omitted].”

4th Department

People v Blackshell, 2019 NY Slip Op 09120 (12/20/19) – Rejected defendant’s argument that the trial court committed reversible error when it refused to preclude certain evidence on the ground that the People did not turn over, within 15 days after arraignment as generally required by CPL 700.70, copies of the affidavits that accompanied the applications for eavesdropping warrants. The Fourth Department held that this contention had not been preserved for appellate review and, in any event, had no merit.

“The record reflects that the People served copies of the eavesdropping warrants on defendant within 15 days of arraignment on the original indictment and again within 15 days of arraignment on the superseding indictment. Although the People did not serve the supporting affidavits until a later date, the record establishes that the court properly granted the People several extensions of time to serve the affidavits, after the People demonstrated good cause and the absence of prejudice to defendant [see CPL 700.70]. We thus conclude that ‘the purpose of the 15-day statutory service requirement … to facilitate the service and filing of all pretrial motions within 45 days after arraignment or within 45 days after service of the papers pursuant to CPL 700.70, was accomplished’ [People v Liberatore, 79 NY2d 208, 214 (1992)].”

Grand Jury

1st Department

People v Green (Danny), 2019 NY Slip Op 09356 (12/30/19) – Affirmed Supreme Court’s 2018 order that vacated 1999 murder conviction, for ineffective assistance of counsel on a specific forensic issue and because the People had not given over exculpatory-impeaching evidence, but declined to grant all the relief sought by defendant’s 440.10 motion.

“Defendant is not entitled to dismissal of the murder count (upon which the People do not intend to [re-try] him in any event), or any other count of the indictment. The indictment was not based entirely on false testimony [compare People v Pelchat, 62 NY2d 97 (1984)], and there was no impairment of the integrity of the grand jury proceeding warranting dismissal [see CPL 210.35(5); People v Darby, 75 NY2d 449, 455 (1990); People v Crowder, 44 AD3d 330 (1st Dept 2007)]. The kidnapping victim testified in the grand jury about defendant’s role in the murder. Another witness (who did not testify at trial) gave testimony about witnessing the murder that was later determined to be false, because the witness had actually been incarcerated at the time. The kidnapping victim also testified that this other witness was present at the time, and this was plainly incorrect, but it is not clear whether this was intentionally false or honestly mistaken. Unlike the situation in Pelchat, it cannot be said that the only grand jury evidence connecting defendant with the murder was testimony later proven to be false or incorrect [see Pelchat, 62 NY2d at 99].”

2nd Department

People v Bull, 2019 NY Slip Op 08420 (11/20/19) – Supreme Court properly permitted People to amend indictment by deleting all references to an unnamed third accomplice; “the amendment did not change the theory of the People’s case or unduly prejudice the defendant [see CPL § 200.70 (1); People v Hyland, 168 AD3d 1096 (2d Dept 2019)].”

People v Rose, 2019 NY Slip Op 09299 (12/24/19) – Supreme Court properly defendant’s motion to dismiss the indictment on the ground that he was deprived of his right to testify before the grand jury because he allegedly was not given notice of his scheduled time to appear. “In opposition to the defendant’s motion, the People demonstrated that the defendant was provided with notice, via telephone and email to his counsel, of the grand jury proceeding and the date and time during which he was scheduled to testify [see CPL § 190.50(5)(a); People v Williams, 139 AD3d 766, 766 (2d Dept 2016); People v Quinones, 280 AD2d 559, 560 (2d Dept 2001)].”

4th Department

People v Ferguson , 2019 NY Slip Op 08016 (11/8/2019) – Upon review of the expert testimony presented and the limiting instructions issued during the grand jury proceeding, the court concluded that defendant failed to meet her burden of establishing “the existence of defects impairing the integrity of the …proceeding and giving rise to the possibility of prejudice.”

People v Gazzillo, 2019 NY Slip Op 08336 (11/15/2019) – Court rejected defendant’s claim that County Court erred in refusing to dismiss the indictment pursuant to CPL 210.35(5), finding that there was no indication that the People knowingly or deliberately presented false testimony to the grand jury. Nor did the trial court abuse its discretion when it denied defendant’s motion to dismiss the indictment in the furtherance of justice under CPL 210.40 based on, inter alia, alleged misconduct during the grand jury proceeding. County Court “afforded the parties an opportunity to be heard and create a record, including the questioning of the grand jury prosecutor in connection with defendant’s allegations of misconduct, and, upon review of the record, we agree with the court that this is not one of those ‘rare cases where there is a compelling factor which clearly demonstrates that prosecution of the indictment would be an injustice’ [citations omitted].”

Voir Dire

4th Department

People v Burton, 2019 NY Slip Op 06957 (9/27/19) – Court affirmed the conviction of sexual abuse in the first degree, finding that the prosecutor’s questions during jury selection concerning the likelihood that a victim of child sexual abuse knows the offender were “relevant and material to the inquiry at hand,” quoting People v Sweney, 55 AD3d 1350 (4th Dept 2008).

Opening

2nd Department

People v Duchi, 2019 NY Slip Op 07412 (10/16/19) – App. Div. rejected argument that the prosecutor’s opening statement should prompt a new trial of the rape and assault charges.

“During opening statements, the prosecutor, in describing what she expected the evidence to show, indicated that the defendant, rather than the complainant, ordered the alcoholic drink for the complainant. However, at trial, the complainant testified that ‘they’ ordered the drink. The defendant’s contention that the prosecutor’s comment during opening statements deprived him of a fair trial is unpreserved for appellate review (see CPL 470.05[2]). In any event, ‘absent bad faith or undue prejudice,’ unfulfilled promises in a prosecutor’s opening statement generally will not entitle a defendant to a new trial [People v DeTore, 34 NY2d 199, 207 (1974); see People v Carmichael, 170 AD3d 742, 742-743 (2d Dept 2019)]. Here, there is no reason to believe that the prosecutor acted in bad faith and the defendant was not unduly prejudiced by the unfulfilled representation [citations omitted].”

4th Department

People v Logan, 2019 NY Slip Op 09138 (12/20/2019) – Defendant’s speculation that the jury would infer from the prosecutor’s remark during opening that a prior uncharged crime occurred is insufficient to establish a Molineux violation. The remark was immediately objected to, and the court sustained the objection and issued a curative instruction. The court had also instructed the jury that opening statements did not constitute evidence.

Direct

2nd Department

People v Lominy, 2019 NY Slip Op 07094 (10/2/19) – People properly permitted to elicit testimony from victim as to two occasions of sexual abuse in addition to the three charged by the indictment.

“The defendant was charged with course of sexual conduct against a child in the second degree, so the additional instances of abuse testified to by the complainant were offered to prove an element of the crime charged, namely, that there were two or more acts of sexual conduct over a period of time not less than three months in duration…. ‘The text and legislative history of Penal Law § 130.80 … make clear that it is a continuing crime to which the usual requirements of specificity with respect to time do not pertain’ [People v Colf, 286 AD2d 888, 888-889 (4th Dept 2001); see People v Harp, 20 AD3d 672, 673 (3rd Dept 2005); People v Green, 17 AD3d 1076, 1077 (4th Dept 2005).”

People v Yegutkin (Emanuel), 2019 NY Slip Op 07102 (10/2/19) – Note that this case concerns rebuttal evidence, not testimony elicited on the People’s case in chief. Defendant was convicted at trial of 75 counts of various child sexual offenses perpetrated against 3 victims over the course of 10 years. The App. Div. court reversed and dismissed 5 counts for legal insufficiency, but found no merit in defendant’s claim that he was denied a fair trial because the People were permitted to adduce rebuttal evidence from a non-victim witness that defendant propositioned him to engage in sexual conduct.

“[D]efendant testified that he was a very observant Orthodox [Jew], who followed ‘strict standards, and that, in the Orthodox Jewish religion, masturbating, or ‘wast[ing] your seed’ in any form, was a ‘sin’ for which [t]here would be a punishment coming from heaven, from [God]. [He further] testified that homosexual conduct was likewise a sin in his faith, and that ‘wasting seed’ included homosexual act[, and] that on a scale of 1 to 10, with 10 being the worst sin, ‘wasting seed’ was a “10.” Additionally, the defendant called two Rabbis as witnesses to testify that the defendant was ‘[v]ery serious and committed’ to the observances and practices of the Jewish religion. One of the Rabbis, who was deemed an expert in Jewish laws, customs and practices, also testified that masturbation was forbidden ‘by the laws of Judaism’.”
“[T]he rebuttal witness’s testimony that the defendant previously attempted to persuade him to participate in mutual masturbation was highly probative to rebut the defendant’s defense that he would not engage in any of the charged conduct because of his religious beliefs [see People v Harris, 57 NY2d 335, 345 (1982); People v Castaneda, 173 AD2d 349, 350 (1st Dept 1991)], and the probative value of this evidence outweighed the risk of prejudice to the defendant [see People v Hankerson, 165 AD3d 1285, 1287 (2d Dept 2018); People v Sheehan, 105 AD3d 873, 875 (2d Dept 2013)]. Moreover, any potential for prejudice was alleviated by the Supreme Court’s limiting instruction, which was timely given and repeated during the court’s final charge to the jury [citations omitted].”

People v Mendez (Francisco), 2019 NY Slip Op 08705 (12/4/19) – In affirming this defendant’s convictions for sex crimes perpetrated against a child, the Second Department held that “the evidence that the defendant had committed a prior sexual assault against the complainant’s sister, which resulted in the family mistreating and harassing the sister instead of helping her, was probative of the complainant’s state of mind with respect to why the complainant delayed reporting the abuse committed against him [see People v Guagenti, 264 AD2d 427 (2d Dept 1999)], and the probative value of this evidence was not outweighed by its prejudicial effect.”

People v Jagota, 2019 NY Slip Op 08865 (12/11/19) – Proper for People to adduce “evidence of prior uncharged incidents in which the defendant allegedly struck the complainant. In domestic violence cases such as this one, ‘evidence of prior assaults is admissible because the aggression and bad acts are focused on one particular person, demonstrating the defendant’s intent, motive, identity and absence of mistake or accident’ and provides the necessary background as to the relationship between the defendant and the victim’ [People v Graham, 159 AD3d 1022, 1023 (2d Dept 2018), internal citation omitted].”

People v Lewis (Richard), 2019 NY Slip Op 09023 (12/18/19) – Convictions for sex offenses perpetrated against defendant’s step-daughter reversed — in the interest of justice — because certain photographs, received into evidence on the People’s case, were unduly prejudicial. App. Div. court declined to deem this evidentiary ruling harmless error.

“Photographic evidence should be excluded only if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant” [citations omitted]. Here, the complainant’s pediatrician, who was called as a witness by the prosecutor, testified that there were no injuries to the complainant’s genitals or anus, and that she did not expect to see any injury based upon the complainant’s report. Nevertheless, the prosecutor then asked the pediatrician to approach the jurors and display the photographs to them. Under the circumstances of this case, the photographs were irrelevant, and served no purpose other than to inflame the emotions of the jury and to introduce into the trial an impermissible sympathy factor [see People v Donohue, 229 AD2d 396, 398 (2d Dept 1996); additional citations omitted].”

“The error was then compounded when the prosecutor argued in summation that the complainant had to ‘get on a table and open up her legs and have her genitals photographed to be shown to 15 strangers … What did she gain out of this? Nothing.'”

Compare People v Anglin, 2019 NY Slip Op 08855 (12/11/19) – A nude photograph of the child kidnapping victim was properly admitted on the People’s direct case. “[T]the photograph was neither excessively gruesome nor introduced for the sole purpose of arousing the jurors’ passions and prejudicing the defendant [citations omitted]. Rather, the photograph was relevant to help illustrate the child’s physical condition and to elucidate the testimony of the People’s witnesses [citations omitted].”

Cross-examination

1st Department

People v Moco, 2019 NY Slip Op 07855 (10/31/19) – Prosecutor should not have cross-examined defendant “about the underlying facts of two prior arrests that resulted in dismissals, where the prosecutor had not ascertained whether the charges had been dismissed on the merits, which would have negated any good faith basis for inquiry [see People v Padilla, 28 AD3d 365 (1st Dept 2006); see also People v Stabell, 270 AD2d 894 (4th Dept 2000)]. But the First Department declined to order a new trial. This line of cross-examination was brief; the court informed the jury that (as defendant had testified) the charges were dismissed; and the proof of defendant’s guilt was overwhelming.

2nd Department

People v Sosa-Marquez (Manuel), 2019 NY Slip Op 08585 (11/27/19) – In affirming this defendant’s conviction for attempted murder, the App. Div. court rejected his contention that the prosecutor’s cross-examination of the defendant concerning his knowledge of gang members was “highly inflammatory.” This line of cross-examination “was relevant and probative of the People’s theory that the shooting was in retaliation for an earlier threat to the defendant made by members of a rival gang, with whom the complainant was affiliated [citing to, inter alia, People v Paige, 134 AD3d 1048 (2d Dept 2015)].

Summation

1st Department

People v Maldonado, 2019 NY Slip Op 08513 (11/21/19) – Even if this defendant had preserved his claim that the prosecutor’s summation “constructively amended the indictment”, thereby depriving him of fair notice of the charges, the First Dept panel would not have reversed. “It was the People’s theory throughout that the altercation between defendant and the victim was a single continuous violation of an order of protection, as reflected in all relevant documents. It was permissible for the entire course of conduct to be charged as a single count of contempt [see People v Alonzo, 16 NY3d 267, 270 (2011)], and for the People to argue that theory [citation omitted].”

2nd Department

People v Dawson (Loren), 2019 NY Slip Op 08689 (12/4/19) – Assault & CPW convictions reversed because of trial prosecutor’s summation. E.g., “the prosecutor denigrated the defense and disparaged the defendant, referring to his self-defense claim as ‘ridiculous,’ ‘insulting,’ and ‘ludicrous,’ and informing the jury that the defendant would ‘tell you anything’ in an effort to ‘sell you’ a story. The prosecutor described the defendant as a ‘hothead’ and a ‘punk’ who could not ‘take [a] beating like a man’…. Moreover, the prosecutor impinged on the defendant’s right to remain silent before arrest by arguing that he could not have acted in self-defense during the altercation because he did not call the 911 emergency number…. Further, the prosecutor improperly invoked the jury’s sympathy for the complainant, vouched for the complainant’s credibility, and interjected her own sense of moral retribution with respect to the complainant’s entitlement to use physical force against the defendant, while misleading the jury as to the law on justification…” [all citations omitted].” Because the cumulative effect of this repeated prosecutorial misconduct deprived defendant of a fair trial, he is entitled to a new trial.

People v Anglin, 2019 NY Slip Op 08855 (12/11/19) – “The prosecutor’s use of a chart in summation, depicting, inter alia, a partial compilation of certain phone records in evidence did not deprive the defendant of a fair trial [see People v Williams, 29 NY3d 84, 89-90 (2017); People v Anderson, 29 NY3d 69, 72-73 (2017).] The prosecutor’s comments with regard to the phone records and the information contained in the chart, with limited exception, were fair comment on the evidence. Moreover, although the Supreme Court informed the jury that the prosecutor had made a representation that the chart was a compilation of exhibits in evidence, it made clear that the chart was a demonstrative aid and was not in evidence. Further, minor discrepancies between the chart and the exhibits did not deprive the defendant of a fair trial [citations omitted].”

Additionally, the trial court “providently exercised its discretion in permitting the chart used by the prosecutor during summation as a demonstrative aid to be displayed to the jury in the courtroom in response to a note from the jury requesting the chart [see People v Velasco, 77 NY2d 469, 474 (1991)]. The court instructed the jury that the demonstrative aid was not evidence, that it was not a substitute for evidence, and did not provide copies or permit the jury to view the demonstrative aid in the jury room [citation omitted].”

People v Day, 2019 NY Slip Op 08858 (12/11/19) – First degree assault and robbery charges reversed & new trial ordered because, as the People conceded in their respondent’s brief, “the prosecutor’s comments during summation that the defendant’s DNA was found on the weapon used to shoot the victim had no evidentiary support in the record.” Although defense counsel immediately objected to these “highly prejudicial” statements and moved for a mistrial, the court refused to even give a curative instruction.

Miscellaneous

1st Department

People v Lora, 2019 NY Slip Op 08478 (11/21/19) – Upon the People’s appeal, a 3-2 majority reinstated the indictment & remitted the matter for further consideration of defendant’s CPL 30.30 motion. The trial court “improvidently exercised its broad discretion over calendar matters when it refused to accept the People’s untimely opposition papers and refused to reconsider its decision to grant defendant’s motion as unopposed.”

Unlike People v Cole, 73 NY2d 957 (1989) — cited by the court below — where the People failed to submit any opposition papers, the People did seek to file opposition papers, albeit 15 days after the due date set by the court. “Further, there is nothing in the record to suggest that there was any history of dilatory conduct or a blatant disregard of court directives on the part of the People. Rather, this appears to be an isolated lapse.” Additionally, summary dismissal of the serious, multi-count indictment charging defendant with numerous weapons possession offenses was unduly Draconian since “less drastic remedies, including charging the People for the 15-day delay, were available [see People v Commack, 194 AD2d 619 (2d Dept 1993), and People v Anderson, 66 NY2d 529, 537 (1985)]. Defendant would have suffered no prejudice had the lower court fully determined the motion because he “was not incarcerated on the weapons indictment and was awaiting trial on [a] bail jumping indictment.”

People v Small (Durville), 2019 NY Slip Op 08947 (12/12/19) – “Defendant failed to preserve, and affirmatively waived, his claim that the New York County District Attorney’s Office, acting as special prosecutor, unlawfully represented the People at sentencing after its authority to do so had been rescinded, and we decline to review it in the interest of justice. The alleged procedural error did not go to the substantive legality of the sentence [see People v Samms, 95 NY2d 52, 58 (2000)], and it did not fall within the narrow category of mode of proceedings errors [citation omitted].
In any event, the order removing the special prosecutor and reinstating the Bronx District Attorney had not yet been entered at the time of sentencing. Therefore, it was not enforceable against the affected party [see generally Lori v Malstrom, 13 AD3d 243 (1st Dept 2004)]. We also note that the order had been granted inadvertently, on the day before sentencing, by an administrative judge who was unaware that defendant had withdrawn his request for that relief, and this order itself was ultimately rescinded.”

2nd Department

Matter of New York Times Co. v Kings County District Attorney’s Office, 2019 NY Slip Op 08410 (11/20/19) – This was an appeal by The New York Times from Supreme Court’s disposition of its challenges, via a CPLR Article 78 proceeding, to the DA Office’s blanket declination to provide 17 final reports of the Office’s Convictions Review Unit sought by the newspaper’s Freedom of Information Law request. The newspaper also challenged the redactions made to the one report it did receive concerning Jabbar Washington, whose murder conviction was vacated upon the People’s application following CRU’s investigation into the case.

The Times made its FOIL request 2 weeks after Washington was freed.

  • In brief, the Appellate Division agreed with the DA’s Office that, absent a CPL 160.50 (1) (d) waiver by the person whose conviction was vacated, a CRU final report pertaining to that individual is “not subject to disclosure pursuant to FOIL.”
  • Although not made part of the initial request, Jabbar Washington supplied a 160.50 waiver in conjunction with the Times’ appeal to the DA’s FOIL Appeals Officer. Consequently, the FOIL Appeals Officer concluded that the newspaper was entitled to CRU’s Washington report, subject to any other FOIL exemptions; the DA’s Office subsequently supplied a redacted Washington report. The Second Department agreed with The New York Times that “without an in camera review of the Washington report, it is impossible to determine whether the redacted material falls within [the claimed] exemptions”:
(i) deliberative inter- or intra-agency materials [see Public Officers Law § 87(2)(g)]
(ii) attorney work product shielded from disclosure by Public Officers Law § 87(2)(a) and CPLR 3101(c), and/or
(iii) material related to grand jury proceedings [see Public Officers Law § 87(2)(a); Penal Law § 215.70; CPL 190.25(4)(a)].

It therefore modified the judgment below and directed the DA to produce the unredacted Washington report for an in camera inspection and determination of those issues by the Kings County Supreme Court.

Matter of Mingo v Brown, 2019 NY Slip Op 07401 (10/16/19) – In disposing of a convicted defendant’s FOIL appeal, the Second Dept. upheld the Supreme Court’s refusal to grant his motion for an order that would have held the District Attorney in contempt, imposed sanctions, and awarded him attorney’s fees.

  • “To prevail on a motion to hold another in civil contempt, ‘the movant must demonstrate that the party charged violated a clear and unequivocal court order, thereby prejudicing a right of another party to the litigation’…. ‘The party seeking to hold another in civil contempt bears the burden of proof’….”
  • “Likewise, to warrant the imposition of sanctions under the circumstances of this case, a party must have failed to timely comply with a court order…. Here, the petitioner failed to show that the respondent did not comply with the July 25, 2012 directive and the December 23, 2015 order. Rather, the evidence showed that the respondent complied with the directive and the order in a timely manner.”
  • “In a FOIL proceeding, an attorney’s fee may be awarded in the court’s discretion to a person who has ‘substantially prevailed’ [Public Officers Law § 89(4)(c)]. The petitioner did not substantially prevail on his petition. Thus, an award of an attorney’s fee would have been inappropriate.”

People v Lambey, 2019 NY Slip Op 07793 (10/30/19) – County Court should not have summarily denied that branch of defendant’s omnibus motion which sought to controvert the search warrant. “Although in moving to controvert the search warrant, defense counsel did not make precise factual averments, he was not required to do so as he did not have access to the search warrant applications at issue [see People v Mendoza, 82 NY2d 415, 429 (1993)].”

“Accordingly, we remit the matter to the County Court … for an order directing the People to provide defense counsel with redacted copies of the search warrant applications at issue, which protect the identity of the confidential informant and the undercover officer, and for a hearing and a new determination thereafter of that branch of the defendant’s omnibus motion which was to controvert the search warrant [citation omitted].”

3rd Department

People v Abelove, 2019 NY Slip Op 08453 (11/21/19) – Indictment charging former DA with official misconduct and perjury reinstated. Third Department held that the Supreme Court erred in concluding that the Attorney General’s Office lacked the authority to prosecute the perjury count and, therefore, erred in granting defendant’s motion to dismiss the indictment.

Disciplinary & Other Proceedings/Sanctions

2nd Department

The Second Department has suspended a Long Island attorney, already under a 6-months’ suspension, from the practice of law for 3 years because he failed to perfect the appeal of an elderly client & did not inform the client that the appeal was dismissed; he then launched a baseless lawsuit against the senior citizen after the former client filed a complaint with the Grievance Committee. And because when asked, in a courthouse hallway, by another lawyer what brought him to court that day, he gestured to two (female) prosecutors, and said “Nothing, just doing a trial with these two sluts.” When one of the Assistants chided him, he told her to “stop being so sensitive.” The Second Department found the attorney’s testimony, at the grievance hearing, that he’d actually said “slugs” to be “patently incredible.” Matter of Bloom (Eliot J.), 2019 NY Slip Op 09000 (12/18/19).

4th Department

On December 27, Presiding Justice Whalen signed an order to show cause directing 60 attorneys to file a written response, by March 27, as to why they should not be suspended from the practice of law for their failure to comply with attorney registration requirements. The names of the 60 attorneys are listed on an attachment to the order to show cause.

Other News From Around the US

Ohio
On December 31, a Sandusky County judge suspended the county’s elected County Prosecutor from office pending a hearing on the formal Complaint, seeking the prosecutor’s removal for misconduct under state law, filed the day before by the Ohio Attorney General on behalf of Governor Mike DeWine. The application for an immediate suspension pending a hearing was prompted by the terms of the probationary sentence imposed the week before, after the County Prosecutor pleaded guilty to the third degree misdemeanor of negligent assault in satisfaction of criminal charges initiated by a former member of his staff.

Pursuant to the plea agreement with the special prosecutor for the criminal case, the prosecutor was permitted to remain in office (and collect his salary) until June 2020. But under the terms of the probationary sentence, he is prohibited from being present in the Prosecutor’s Office more than once every 90 days and is also barred from the county courthouse.

The prosecutor had resisted earlier calls from, e.g., his own county’s Republican Committee (of which he is a member), the County Sheriff, and the Attorney General to step down.

Oregon
Oregon’s Supreme Court has suspended a longtime District Attorney from the practice of law for 2 months after concluding that the evidence supported 4 of the 6 allegations of false statements he gave in the course of a State Bar investigation into alleged conflict of interest violations. The DA did not face disciplinary action for any alleged conflicts of interest.

South Carolina
The Supreme Court of South Carolina agreed with the defendant — convicted of murder in 2006, seemingly because the jury concluded he had not acted in self-defense — that there should be a new trial because of comments made by the prosecutor in summation that the Supreme Court found “utterly inexcusable.” The condemned passages:

“My job is to present the truth. In fact if you look in the South Carolina Code of Laws, which mandates what a solicitor’s job is, we can’t be like a normal attorney is. A normal lawyer has to advocate on behalf of his client. But on the other hand the Solicitor can’t. We have to say what the truth is and it’s -” (objection by defense counsel).
“[When] the person has done something that I think the facts show they’re guilty of, then I can’t [dismiss the case]. I have to go forward with it. And as I said my job is to show the truth. On the other hand, the defense attorneys’ jobs are to manipulate the truth. Their job is to shroud the truth. Their job is [to] confuse jurors. Their job is to do whatever they have to — without regard for the truth — to get a not guilty verdict.”

Fortune v State, – SC – (SC Sup Ct 12/4/19), reporter citation not yet available.

Texas
The State Bar of Texas (which operates under the auspices of the State’s Supreme Court) placed a former Houston prosecutor on a 90-day “fully probated suspension” for her failure to disclose to the defense in a death penalty case “her willingness to give favorable sentencing recommendations on behalf of two testifying witnesses with pending criminal charges based on their cooperation” with the prosecution. The terms of the probated suspension, whereby the attorney remains authorized to practice law if she complies with the terms, were not detailed in the State Bar’s announcement.

Following a hearing in 2017, the trial court recommended that the defendant’s habeas corpus petition be granted, largely because of prosecutorial misconduct. In June of this year, the Texas Court of Criminal Appeals denied the writ after finding that the record did not support the trial court’s conclusions. Ex parte Edward George McGregor.

NYPTI Law Updated for 2019