Ethics Watch 1st Quarter 2022


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1st Quarter 2022 New York State Ethics Decisions

CPL 440.10 motion based on defense counsel’s suspension in other jurisdiction

People v Burgos (Angelo), 2022 NY Slip Op 01868 (3/17/22) – While state charges were pending against Burgos in NY County Supreme Court, his retained attorney was publicly admonished by the Second Circuit and suspended from practicing before that court for 18 months. Burgos subsequently opted for a non-jury trial; he was convicted of the indictment’s lower counts. Two weeks after Burgos was sentenced, the 1st Dept imposed reciprocal discipline of an 18-months’ suspension, which was ordered to run nunc pro nunc back to date of 2nd Circuit’s suspension order. Upon learning of this, Burgos filed a CPL 440.10 motion in which he claimed ineffective assistance of counsel and constructive deprivation of counsel. The trial court’s denial of the 440.10 motion was upheld by the 1st Dept. 190 AD3d 431 (1st Dept 2021).

A unanimous Court of Appeals affirmed. It rejected Burgos’ call for a per se rule whereby an attorney disbarred or suspended in another jurisdiction would be deemed “constructively suspended” in New York. Such a rule was not required, or supported, by People v Kieser, 79 NY2d 936 (1992). Moreover, “contrary to defendant’s contention, the imposition of reciprocal discipline is not a foregone conclusion, nor is the nature or length of any reciprocal discipline imposed certain. Defendant’s proposed rule would deprive attorneys of the due process to which they are entitled in pending reciprocal disciplinary proceedings.”

The Court also refused to adopt a “bright line rule” that an attorney’s failure to inform a defendant of another jurisdiction’s suspension or disbarment, and the later initiation of reciprocal disciplinary proceedings in New York, requires vacatur of the judgment. “Instead, we conclude that an attorney’s failure to disclose the imposition of foreign discipline and pending reciprocal disciplinary proceedings can adequately be assessed in the context of an ineffective assistance of counsel claim.” Burgos, however, had not met his burden of demonstrating that he was deprived of meaningful representation. “Defendant has not demonstrated that the neglect of cases that led to the Second Circuit’s discipline was present in Aranda’s representation of defendant. Furthermore, defendant has not demonstrated that the imposition of reciprocal discipline in New York impacted Aranda’s representation of him or prejudiced him,” for Aranda was indeed a licensed attorney in New York throughout the pendency of defendant’s criminal case.

Brady/Giglio/Rosario & Other Discovery Issues

1st Dept

People v Alvarado (Joseph), 2022 NY Slip Op 00136 (1/12/22) – “Alvarado did not preserve his claims that his constitutional rights were violated by allegedly inadequate disclosure of, and allegedly precluded cross-examination regarding, a prosecution witness’s improper relationship with a juror in a prior trial, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal. The facts relating to the witness’s conduct relating to the other trial are set forth in this Court’s opinion in People v McGregor (179 AD3d 26 [1st Dept 2019], lv denied 34 NY3d 1161 [2020]). During jury selection at the instant trial, defendants were made aware of the prior incident. The court, which had also presided over the other trial, offered the opportunity to review the minutes of the McGregor defendant’s CPL 330.30(2) motion to set aside the verdict in the other trial, which set forth the facts relevant to the witness’s conduct (see id.). Furthermore, rather than preemptively foreclosing impeachment of the witness about this matter, the court also offered the opportunity to make applications to cross-examine the witness about the prior incident, to the extent relevant to his credibility. However, Alvarado did not avail himself of either of these opportunities (see People v Graves, 85 NY2d 1024, 1027 [1995]).”

People v Velez (Kurby), 2022 NY Slip Op 00362 (1/20/22) – “The prosecution’s failure to disclose the undercover officer’s misidentifications of sellers in unrelated cases did not warrant withdrawal of the plea, because the misidentifications would not have ‘materially affected [defendant’s] decision to plead guilty rather than proceed to trial’ (see People v Martin, 240 AD2d 5, 9 [1st Dept 1998], lv denied 92 NY2d 856 [1998]). Among other things, defendant received the minimum available prison term, and the officer’s identification was corroborated by the fact that a different officer recovered prerecorded buy money from defendant.”

People v Holmes (Marvin), 2022 NY Slip Op 00951 (2/10/22) – In affirming the denial, without a hearing, of defendant’s CPL 440.10 motion to vacate his 2018 conviction of the ex-husband of his then girlfriend, the 1st Dept rejected, inter alia, his two Brady violation claims:

  1. “Assuming, without deciding, that [prior decisions granting suppression in two, unrelated defendants’ cases] constituted impeachment material that the People were required to disclose, they were not material to the defense (see e.g. People v Fuentes, 12 NY3d 259 [2009]). There is no reasonable possibility that evidence of the detective’s conduct in the two prior cases would have led to a different outcome. Defendant does not dispute that he validly waived his Miranda rights, as administered by a different detective, before being questioned by the detective who took the statement. Moreover, defendant’s primary claim at trial was that he confessed to protect his girlfriend, not that officers coerced a confession. In addition…, there was ample evidence of defendant’s guilt other than the confession.”
  2. As for the claim that the People failed to disclose incidents of domestic violence between the victim and his then wife (defendant’s girlfriend) 2 years before the murder, the 1st Dept agreed that “this evidence, although remote, was favorable to the defense in that it tended to show that the victim’s ex-wife had a motive to shoot him.” But those “complaints against the victim were disclosed as part of the People’s Rosario obligation;” moreover, the People submitted an affidavit from the woman wherein she swore that she had told defendant “about the criminal cases involving her and the victim.” Consequently, it could not be said that the People suppressed this evidence (see People v LaValle, 3 NY3d 88, 110 [2004]). “To the extent the victim’s underlying arrest records were not disclosed, they were not material in light of the previously discussed evidence of defendant’s guilt, because there was no reasonable possibility that the undisclosed records would have changed the result of the trial (see Fuentes, 12 NY3d at 263).

2nd Dept

People v Ramunni (Michelle), 2022 NY Slip Op 02022 (03/23/22) – The Second Department reversed defendant’s convictions for gang assault and assault first degree, finding that the People’s suppression of favorable evidence in violation of Brady deprived defendant of due process.

In this case, a 911 caller gave a description of the perpetrator which was not the defendant, while placing the defendant at the scene and calling defendant by name. The People disclosed the statement, but did not provided the caller’s identity or contact information, denying defendant’s request for such information. The Court noted that “[w]hile the contents of the 911 call may have provided some clues as to the identity of the caller, the defendant should not be forced to guess as to the identity of this caller. In addition, we are satisfied that there was a reasonable possibility that disclosure of the caller’s identity and contact information would have led to evidence that would have changed the result of the proceedings (see People v Giuca, 33 NY3d 462, 473).”

3rd Dept

People v Adams (Quinton), 2022 NY Slip Op 00076 (1/6/22) – Defendant and others were charged in Schenectady County in an 84-count indictment based on a complex investigation which was conducted over a period of months. This defendant was convicted of three felonies. The Appellate Division concluded that there was no Brady violation committed when the prosecution did not disclose that a witness was being investigated for drug crimes committed in Saratoga County. That witness testified identifying one of the co-defendants as his supplier, providing the make and model of the supplier’s car and identifying the courier who was involved. Although that testimony provided corroboration, it was not “the linchpin of the case against defendant.” Not only did the witness not receive a benefit in the Saratoga County case for testifying at this trial, but he was not even aware of that investigation at the time he testified. In addition, the defendant had the opportunity to cross examine the witness about notes taken during his debriefing about drug sales including the Saratoga County crimes. As a result, the information was not material, and the defendant was not prejudiced. In sum, “There is no reasonable probability that the disclosure of the subject impeachment evidence would have resulted in a different outcome.”

People v. Mussen (Franklin), 2022 NY Slip Op 01607 (2/17/22) – Appellate Division rejected defendant’s claim that the prosecution’s failure to advise him timely of a prosecution witness’ prior conviction for driving while ability impaired (see Vehicle and Traffic Law § 1192 [1]) constituted a Brady violation. Citing to its decision of the jointly tried co-defendant’s appeal (People v Bush, 184 AD3d 1003 [3d Dept. 2020], the Mussen court reaffirmed that the traffic violation conviction is not considered a criminal conviction for impeachment purposes.

4th Dept

People v Harris (Terry), 2022 NY Slip Op 01699 (3/11/22) – Court held that trial court properly declined to impose a sanction on the People for the belated disclosure of an audio file, in this pre-CPL Article 245 case, since “defense counsel “received the materials at a time when they were still useful to [the] defense [citations omitted].”

People v Socciarelli (Michael), 2022 NY Slip Op 01713 (3/11/22) – Although the People committed a Rosario violation when they did not promptly disclose a video that was in the possession of law enforcement, the 4th Department concluded that the trial court did not err in denying the defense request for a mistrial. “Where … there is an issue of delayed disclosure of Rosario material, reversal is required only ‘if the defense is substantially prejudiced by the delay’ (People v Martinez, 71 NY2d 937, 940 [1988] [other citation omitted]), and here, “the court gave the defense additional time to review the evidence and the opportunity to recall witnesses for further cross-examination.”

Court also rejected defendant’s contention that the trial court should have declared a mistrial owing to the belated disclosure of a video recording. “Even assuming, arguendo, that the evidence on the video could be deemed exculpatory, we conclude that a mistrial was not warranted ‘inasmuch as defendant received the material in time for its meaningful and effective use at trial’…. Moreover, defendant knew or should have known of the existence of the video as well as the nature of its contents inasmuch as the video itself leaves no doubt that defendant knew he was being recorded (see People v LaValle, 3 NY3d 88, 110 [2004]; People v Rivera, 82 AD3d 1590, 1592 [4th Dept 2011], lv denied 17 NY3d 800 [2011]).”

Grand Jury

3rd Dept

People v. Mazzeo (David), 2022 NY Slip Op 01068 (2/17/22) –Defendant argued that the grand jury proceeding was defective because the prosecutor introduced evidence of his prior convictions. Here, however, the evidence of the defendant’s prior convictions was used to demonstrate the defendant’s intent and was inextricably intertwined with the charged crimes. The prosecutor also gave limiting instructions which ameliorated any prejudice. As a result, there was no prosecutorial misconduct which could potentially prejudice the grand jury’s determination.

4th Dept

People v Hunter (Jerrod), 2022 NY Slip Op 0766 (2/4/22) – Defendant contended that the grand jury proceedings were defective as the grand jury may have seen a document containing information about his prior conviction. Court rejected that contention, noting that “one of the elements of CPW 3d is that the defendant’“has been previously convicted of any crime’ [Penal Law § 265.02 (1)]. Where, as here, ‘a prior conviction elevates an offense, it is not an improper procedure to present proof of the prior conviction to the [g]rand [j]ury along with the remainder of the evidence concerning the defendant’s alleged commission of the offense’ (People v Adorno, 216 AD2d 686, 687 [3d Dept 1995], lv denied 86 NY2d 839 [1995]; see People v Murray, 163 AD3d 1000, 1000-1001 [2d Dept 2018], lv denied 32 NY3d 1208 [2019]).”

Voir Dire

4th Dept

People v Stith (Clifton), 2022 NY Slip Op 01712 (3/2/22) – Court upheld trial court’s denial of defendant’s Batson challenge. The People’s explanation — that the prospective juror in question had previously testified as a witness in court, was not a native of the city where the crime occurred, and was a therapist — was a sufficiently race-neutral one.

People v Douglas (Andrew), 2022 NY Slip Op 01919 (3/18/22) – Defendant’s conviction reversed on ground that defendant’s Batson challenge should have been granted. Although the People provided race-neutral reasons for the challenge of the juror, the record showed that the statements they alleged were made by the challenged juror were made by another juror who had been struck by the defendant. “[B]ecause a proffered race-neutral reason cannot withstand a Batson objection where it is based on a statement that the prospective juror did not in fact make…, an equal protection violation was established [internal punctuation and citations omitted].”

Direct

1st Dept

People v Sanders (Joel), 2022 NY Slip Op 01102 (2/17/22) – Trial court should not have permitted People to introduce inflammatory email in which defendant (the former CFO of Dewey & LeBoeuf) said, “I don’t want to cook the books anymore. We need to stop doing that.” “As the [trial] court had found at the first trial, the email refers to unrelated conduct not alleged in the indictment, and in light of the numerous emails relevant to the charged conduct written by defendant to prove his knowledge and participation in the fraudulent scheme, the potential for unfair prejudice exceeded any minimal probative value this email had.” App. Div., however, deemed the error harmless.

People v Reid (Dwight), 2022 NY Slip Op 01425 (3/8/22) – “Facebook photo showing a person claimed by the People to be defendant (but not identified as defendant by any witness) wearing a coat similar to the one worn by the shooter was not sufficiently authenticated (see People v Price, 29 NY3d 472 [2017]). However, the error in admitting this photo was harmless in light of the overwhelming evidence of defendant’s guilt.”

3rd Dept

People v. Garcia (Julio), 2022 NY Slip Op 01348 (3/3/22) At trial when a police officer was asked who had attended the police interview of the defendant, the investigator answered that the defendant’s attorney had been present. This did not constitute an improper comment on defendant’s invocation of his right to counsel or his right to remain silent. The attorney had accompanied the defendant to the interview room and the defendant did not invoke his right to remain silent. The fact that counsel was present was relevant on the issue of the voluntariness of the defendant’s statements. The Appellate Division also agreed with the prosecutor that the prosecution could have introduced the video of defendant’s statements which depicted counsel’s presence.

People v. Roberts(Vandyke), 2022 NY Slip Op 02157 (3/31/22) – Although the error was not preserved, the Appellate Division exercised its interest of justice jurisdiction and reversed a conviction where evidence was introduced of defendant’s jail phone call, in which he stated that he might as well “cop out to . . . the five years or whatever.” While the prosecution considered this evidence of consciousness of guilt, the Appellate Division recognized that such evidence is usually considered weak. defendant’s statement that he was considering accepting the plea and sentence offer had minimal probative value while having a significant prejudicial effect; generally, people think that only guilty people consider pleading guilty and as a result, this evidence could make it difficult for jurors to accept the presumption of innocence and to fairly consider the evidence.

4th Dept

People v Barkley (James), 2022 NY Slip Op 00602 (1/28/2022) – Defendant was convicted of assault in the second degree after a bench trial; the victim did not cooperate with the prosecution and failed to appear for the trial. On appeal, the defendant contended that the trial court erred when it admitted the victim’s Grand Jury testimony in the People’s case-in-chief. The court rejected that contention and held, “[a]lthough the prosecution generally may not use the grand jury testimony of an absent witness on its direct case, New York courts ‘have adopted an exception to this rule where it has been shown that the defendant procured the witness’ unavailability through violence, threats or chicanery’ ([citations omitted]. Such testimony is admissible where, as here, the court conducts a Sirois hearing at which the People ‘demonstrate by clear and convincing evidence that the defendant engaged in misconduct aimed at least in part at preventing the witness from testifying and that those misdeeds were a significant cause of the witness’s decision not to testify’ (People v Smart, 23 NY3d 213, 220 [2014]; [other citations omitted].”

People v Noonan (Gregory), 2022 NY Slip Op 00777 (2/4/22) – People introduced evidence at defendant’s murder trial that he admitted that he had previously kicked the victim in the stomach because it did not leave a mark. Court found that the evidence was properly admitted to show intent and motive.

People v Purdue (Thomas), 2022 NY Slip Op 01711 (3/11/22) – Trial court allowed the People to question a police witness on redirect examination about the steps he had taken to discover the identity of the defendant. Fourth Department found no error: “we conclude that the court properly determined that defense counsel opened the door to that testimony during cross-examination of the investigator (see People v Gonzales, 145 AD3d 1432, 1433 [4th Dept 2016], lv denied 29 NY3d 1079 [2017]). ‘Inasmuch as defendant’s cross-examination of a witness may have created a misimpression, the People were entitled to correct that misimpression on redirect examination’ [citations omitted].”

People v Dubois (Charles), 2022 NY Slip Op 01703 (3/11/22) – Trial court correctly admitted evidence that the defendant in an arson/murder trial had previously made ‘cocktail bombs’. The information was relevant in light of the stated defense that the fire was the result of an accident.

People v Adams (Kenneth), 2022 NY Slip Op 01894 (3/18/22) – Court rejected defendant’s contention that the People improperly referred to the tenants of the building that was burglarized by the defendant as ‘victims.’ “[I]t is undisputed that the tenants of the burglarized apartment were the rightful owners of the property stolen therefrom, we reject defendant’s further contention that the court improperly allowed the People to refer to those tenants as ‘victims’ (cf. People v Horton, 181 AD3d 986, 990 [3d Dept 2020], lv denied 35 NY3d 1045 [2020]).”

Cross-examination

1st Dept

People v Rizzo (James), 2022 NY Slip Op 00276 (1/18/22) – Trial court “providently exercised its discretion in denying defendant’s mistrial motion, made after the prosecutor elicited testimony on cross-examination of defendant that indirectly referenced an uncharged crime, consisting of an earlier entry by defendant into the store in question on the day of one of the charged [burglaries]. That brief testimony caused little or no prejudice in the context of the case, and the court’s curative instructions directing the jury to disregard the testimony rectified any possible prejudice (see People v Santiago, 52 NY2d 865 [1981]). Defendant claims that this testimony, and the prosecutor’s failure to disclose that there were two entries on the day of the first burglary (rather than one entry with an apparent discrepancy as to the time), prejudiced his defense. However, we find that the court’s instruction, which the jury is presumed to have followed (see People v Davis, 58 NY2d 1102, 1104 [1983]), to disregard the minimal testimony at issue was sufficient to prevent the prejudice asserted by defendant.”

People v Ortega (Yoselyn), 2022 NY Slip Op 00828 (2/8/22) – Court rejected defendant’s contention that she should be given a new trial because of the prosecutor’s cross-examination of an expert witness called in support of the insanity defense. “The cross-examination was not so aggressive as to warrant reversal, given that this was a difficult witness who often failed or refused to give responsive answers. We do not find that the cross-examination was unduly prejudicial to defendant’s defense.”

3rd Dept

People v. Harris (Tamale), 2022 NY Slip Op 01484 (3/10/22) – Voluminous call logs were admitted into evidence at trial. During cross-examination of defendant, and to some extent the People’s summation, the prosecutor referred to communications between defendant and an accomplice, who testified for the prosecution, as phone calls rather than text messages. No objection was made to the incorrect characterization. Since there had been communications between the two at the times specified by the prosecutor and since defendant testified that he awoke from a nap to find “a slew of missed calls and texts” from the accomplice/prosecution witness, any mischaracterization of the form of communication could not have deprived defendant of a fair trial.

Rebuttal

3rd Dept

People v. Paul (Kemoo), 2022 NY Slip Op 00912 (2.10/22) – At defendant’s trial on drug charges, the prosecutor asked a prosecution witness, Moran, where and when she met the defendant; Moran answered that the defendant “brought drugs back and forth to my house.” When defense counsel objected, the trial court sustained the objection on the ground that that the answer had not been responsive to the question; it also instructed the jury to disregard the question and answer. On cross-examination, defense cousel elicited testimony from Moran that she had sold drugs on March 18, 2017, and that she had first met another man, Pina, and another man at her house in 2016. Defense counsel was advised that if he attempted to elicit evidence that Pina and his companion were the moving force in a drug operation run from Moran’s home, he was opening the door, and the prosecutor would be able to question Moran about her relationship with the defendant prior to March 18, 2017, including the defendant’s prior deliveries of narcotics. Defense counsel continued to cross-examine Moran about Pina’s involvement in drug sales. County Court ruled that because defense counsel had attempted to mislead the jury into believing that Pina was the only man involved in drug sales from the residence, the prosecutor would be permitted to offer some evidence that defendant and Pina had been working together prior to March 2017.

Third Department held that this evidence of uncharged crimes was properly received at that point. It was inextricably interwoven with the crimes charged and relevant and material to the issues of intent to sell and identity; the trial court found that the probative value of the evidence outweighed the potential for prejudice; and the trial court gave appropriate limiting instructions both during the redirect examination and before the case was submitted to the jury concerning the purpose for which the testimony was elicited.

People v. Morehouse (Scott), 2022 NY Slip Op 01205 (2/24/22) – At his trial for an assault committed in a correctional facility, defendant testified that he had acted in self-defense and had made a statement to that effect to one of the corrections officers immediately after the incident. Prior to trial, defendant’s motion to suppress his statements made to correction officers outside the presence of counsel had been granted. It was appropriate to use defendant’s statement to corrections officers in rebuttal. Voluntary “statement[s] obtained in violation of any aspect of a defendant’s Miranda rights, although not admissible as evidence-in-chief, may be used to impeach a defendant who chooses to take the stand and whose testimony is inconsistent with his [or her] illegally obtained statement [citations omitted].” Here, the correction officer who spoke with defendant after the incident and another corrections officer, who was present during the questioning, testified in rebuttal about defendant’s statement as it had been disclosed in the Huntley Notice; they also testified that the defendant did not say anything at that time about self-defense. Appellate Division held that the evidence of the suppressed statement was properly received on rebuttal to impeach defendant and to afford the prosecution an opportunity to disprove defendant’s new allegation of self-defense.

Summation

2nd Dept

People v Lisene, 2022 NY Slip Op 00194, 201 AD3d 738 (01/12/22) – Although it reversed on other grounds, the Second Department made a point of reminding the People that “summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his [or her] command” (People v Ashwal, 39 NY2d 105, 109 [1976]), but rather, “[t]here are certain well-defined limits” (id. at 109). Among other things, “a prosecutor should avoid inflammatory, disparaging comments that might prejudice the jury against the defendant, and should refrain from vouching for the credibility of the People’s witnesses or bolstering those witnesses’ testimony” (People v Dawson, 178 AD3d 719, 720-721 [2019], citing People v Ashwal, 39 NY2d at 109-110 [2019]). “ ’A prosecutor would be well-advised not to test these limits, both so as to stay within his or her proper truth-seeking role and so as to avoid the waste of time and expense that occurs when a new trial must be conducted solely on the basis of summation misconduct'” (People v Dawson, 178 AD3d at 721, quoting People v Singh, 128 AD3d 860, 863 [2015]).

3rd Dept

People v. Roberts (Vandyke), 2022 NY Slip Op 02157 (3/31/22) – The Appellate Division exercised its interests of justice jurisdiction and ordered a new trial where the prosecutor noted that during a recorded jail call, the defendant had remarked that “[h]e need[ed] to get a paid lawyer to see if he can get lesser time.” While the People argued that this showed consciousness of guilt, the Appellate Division found that the comment was improper because the prosecution cannot use a defendant’s invocation of the right to counsel against him or her.

Conflict of Interest-Appearance of Impropriety

4th Dept

People v Johnson (Thomas), 2022 NY Slip Op 01942 (3/18/22) – Court declined to reverse defendant’s conviction for aggravated murder of a police officer on ground he was denied a fair trial due to judicial bias. “Assuming, arguendo, that County Court should have immediately recused itself after attending the victim-officer’s funeral, we nevertheless conclude that reversal on that basis is unwarranted for the following three reasons unique to this case (see generally CPL 470.05 [1]). First, County Court did not preside over the trial, and thus could not have influenced or affected its outcome in any way. Second, defendant does not assign error to any ruling that County Court made in this case, nor does defendant identify how County Court’s participation inured to his detriment in any respect. Third, County Court’s only significant substantive determination in this case—a suppression ruling that defendant does not challenge—was explicitly reconsidered, ratified, and adopted by Supreme Court before trial.”

Miscellaneous

1st Dept

People v Thigpen (Clarence), 2022 NY Slip Op 00358 (1/20/22) – Upheld trial court’s denial of motion to dismiss indictment because of pre-arrest delay. “The People sufficiently explained that the three-year delay resulted in part from their inability to locate defendant and from their discretionary determination to wait until they were able to secure the victim’s involvement and cooperation. The evidence before the court established that the determination to delay the prosecution was made in good faith and not to gain a tactical advantage (see People v Vernace, 96 NY2d 886, 888 [2001]; see also People v Singh, 156 AD3d 437 [1st Dept 2017], lv denied 31 NY3d 987 [2018]). Defendant’s claim of prejudice is speculative.”

But 2 months later, in People v McDonald (Mark), 2022 NY Slip Op 02099 (3/29/22), the First Dept reversed a murder conviction and dismissed the indictment because of the pretrial delay of “almost six years.” Defendant was behind bars during that time, and the People did not, the 1st Dept concluded, demonstrate good cause.

“The People argue that their delay was justified by the reluctance of a retired detective to testify; they cite a note from the detective’s doctor stating that he was medically unfit to be cross-examined and argue that the detective was a necessary witness because he conducted the lineup in which the surviving victim identified defendant as the assailant. However, this detective ultimately did not testify at the suppression hearing or trial, and the suppression court credited the hearing testimony of the surviving victim, who knew defendant, and denied the motion to suppress the identification based on that testimony. Moreover, it is undisputed that the retired detective was not needed to introduce defendant’s statements, which were introduced through another detective at trial.”

People v Seignious (Jayquan), 2022 NY Slip Op 00948 (2/10/22) – New trial ordered on the ground that the People changed their theory of prosecution to defendant’s detriment. Defendant indicted for second degree burglary as a sexually motivated felony and lesser sex offenses, but the People convinced the trial judge to submit the unindicted crime of second degree burglary as a lesser included offense of the indictment’s top count. In the unanimous App. Div.’s view, defendant here had been “lulled into defending against that crime only, and not any potential lesser included crimes.”

People v Watson (Shalik), 2022 NY Slip Op 00981 (2/15/22) – Trial court did not err in permitting People to introduce a limited excerpt of videotaped statement that, owing to lack of CPL 710.30 notice, was inadmissible. “[D]efense counsel’s cross-examination of a detective, which emphasized the failure to obtain any recording of defendant’s statements to the police and defendant’s refusal to sign any written statement, opened the door…. Defense counsel had attacked the accuracy or credibility of the detective’s testimony that defendant gave three contradictory statements, the last of which was a confession. Accordingly, the court providently exercised its discretion in admitting only defendant’s brief, general statement to a prosecutor to the effect that he had made ‘various statements’ to the police after waiving his Miranda rights (see generally People v Massie, 2 NY3d 179, 184 [2004]).”

3rd Dept

People v. Jones (Santonio), 2022 NY Slip Op 01067 (2/17/22) – There was a mode of proceedings error when the trial court directed the prosecution’s investigator to enter the jury room during deliberations to demonstrate how to operate a digital recorder. A deliberating jury must be “under the supervision of a court officer” or “an appropriate public servant” and, “[e]xcept when so authorized by the court or when performing administerial duties with respect to the jurors, such court officer[] or public servant[] . . . may not speak to or communicate with [the jurors] or permit any other person to do so.” CPL 310.10 (1) [emphasis added by 3rd Dept]. The prosecution’s investigator was not an appropriate public servant to interact with the jury in the deliberation room. By permitting “a representative of the People to interfere in the jury’s secret deliberations,” the validity of the trial was “’irreparably tainted.’”

People v. Moore (Shamell), 2022 NY Slip Op 01847(3/17/22) – At defendant’s sentencing, the prosecutor told the court that although the defendant had no criminal record, police officers had reported that “’from the time that he was a child, [defendant] has been involved in various antisocial behaviors, including assaults, trespasses [and] mischiefs and . . . [that] he was a member of the Bloods, a street gang.” In addition, the prosecutor advised the court that the defendant was being investigated concerning his participation in a recent shooting. Defense counsel objected and asked that the court strike those from the record. The court denied the motion to strike, but disregarded the prosecutor’s remarks as “innuendo.” The court relied on the facts of the crime as well as information in the pre sentence report including defendant’s learning disability and mental health issues, the defendant’s conduct on pre-trial release and a letter of recommendation. The Appellate Division found that the prosecutor’s remarks did not deprive defendant of due process at sentencing. The record revealed that the defendant’s sentence was not based upon materially untrue facts or misinformation.

4th Dept

People v Taylor (Laquan), 2022 NY Slip Op 00774 (2/4/22) – In a murder trial, the People were allowed to amend the indictment to conform to the proof adduced at trial. Fourth Department observed that “[s]uch a motion may be granted ‘provided the amendment does not change the theory of the prosecution or otherwise serve[] to prejudice the defendant on the merits’ (People v Spann, 56 NY2d 469, 473 [1982]; see CPL 200.70 [1]).”
The indictment here charged defendant, with respect to the second incident, with having “fired two shots from a handgun at close range, striking the victim twice and causing his death.” “As amended and charged to the jury, the indictment alleged with respect to the second incident that defendant ‘fired three shots from a handgun, at close range, striking the victim, and causing his death.’ We conclude that the amendment neither changed the theory of the prosecution, nor caused any prejudice to defendant [citations omitted].”

NYS Commission on Judicial Conduct – 2021 Report

On March 3, 2022, the NYS Commission on Judicial Conduct issued its Annual Report for 2021. The Commission began 2021 with 197 complaints that had not been resolved in 2020; it received an additional 1938 complaints in 2021 against judges in all courts, including the Appellate Division and Court of Appeals. (“Complaint” in this context is a distinct grievance; a judge may be, and often is, the subject of more than one complaint.)

  • 302 full-fledged investigations were undertaken following preliminary screening.
  • The Commission issued confidential cautionary letters to 20 judges after screening and investigation.
  • 4 Town/Village Court judges were publicly censured or admonished: 2 attorneys and 2 non-lawyers. One of the non-lawyer judges was admonished because his Facebook page included photos and statements that “aligned the judge with law enforcement, thereby undermining the appearance of impartiality.” Matter of Peck.
  • 10 judges resigned while the complaints against them were under investigation, and “it had not been determined if permanent departure from office was warranted or appropriate.” Should any of them become a judge again, the Commission will renew its investigative proceedings.
  • 13 judges were permitted to resign – conditioned upon their public stipulation to never return to judicial office.
  • One of those, a Suffolk County attorney serving as a Town Court Justice, was under investigation for her inappropriate treatment of local prosecutors & more serious misconduct. Matter of Fishkin.
  • A non-lawyer Town Court Justice agreed to a public resignation rather than proceed to a hearing concerning posts on his Facebook page. “Numerous posts” on the page conveyed the impression of anti-LGBTQ bias & anti-Muslim bias as well as pro-police bias; also included partisan political comments and comments on pending cases such as the prosecution of former Police Officer Chauvin for the murder of George Floyd. Matter of Knutsen.

In cautioning judges about the perils of posting on social media (Annual Report, pp 18-20), the Commission noted, “It is not a defense [to allegations of ethical violations] to claim that the judge was merely reposting or commenting on someone else’s problematic message.”

News From Around the US

  • The Supreme Court of North Dakota has affirmed the dismissal of a defamation lawsuit filed by a former police sergeant against then assistant state’s attorney, who wrote a “Giglio letter” that resulted in sergeant being fired. Krile v Lawyer, 970 NW2d 150 (ND 2022).