Ethics Watch 4th Quarter 2021


Professional Conduct Resources

The Right Thing

Code of Conduct

4th Quarter 2021 New York State Ethics Decisions

Brady/Giglio/Rosario & Other Discovery Issues

The Suffolk County District Attorney’s Office issued a report on its investigation into cases handled by a former ADA, suspended from the practice of law in December of 2020 for failure to comply with discovery requirements [Matter of Kurtzrock, 192 AD3d 197 (2d Dept 2020)]. It is believed to be “the first publicly-issued review and audit by a District Attorney’s Office of an individual prosecutor’s compliance with disclosure obligations.” You will find the report in its entirety here in PE.

1st Dept

People v Bello (Leopuldo), 2021 NY Slip Op 06453 (11/18/21) – Rejected defendant’s contention that he was entitled to a new trial or dismissal of the indictment because of the People’s belated disclosure of videotaped statement made by defendant wherein he said (among other things) that he was drunk.

“Although the statement was exculpatory, it was self-exculpatory [emphasis in original], and would have been inadmissible hearsay if offered by defendant. Defendant asserts that had he known about the statement earlier, he would have modified his defense strategy. However, the record is silent as to why, although aware of the statements made to law enforcement, he did not convey this information to his attorney (see People v LaValle, 3 NY3d 88, 110 [2004]). In any event, once counsel was made aware of the existence of the statement an adjournment was still available, and the court suggested other suitable remedies including precluding the People from using the videotaped statement to impeach defendant in the event he gave testimony which was inconsistent with the statement.”
“Defendant argues that earlier disclosure of the statement would have resulted in a different verdict in that he would have located and called witnesses who would have testified in accordance with his statement that he was too intoxicated to form the requisite intent. However, in order to negate the intent element, the intoxication must be ‘incapacitating’ (People v Rivera, 160 AD2d 419, 419 [1st Dept 1990], lv denied 76 NY2d 1024 [1990]). Here, the testimony established that defendant was not so intoxicated that he did not have the requisite intent to commit the crimes of which he was convicted. [T]he overall conduct of defendant and his codefendants of pursuing the complainants and repeatedly attacking them established that defendant had the requisite intent [citations omitted].”

People v Gainey (Carl), 2021 NY Slip Op 06925 (12/9/21) – Defendant failed to persuade the App. Div. that his robbery conviction should be reversed because of a Brady violation. “Defendant has not established that he was prejudiced by the form and timing of the People’s disclosure of information suggesting that the victim may have given persons at the scene of the robbery, who called 911, a description of the robber that does not match defendant’s appearance. About 10 months after the arrest, but long before trial, the People revealed the information at issue by way of a Sprint report. However, by that time the recording of the underlying 911 call had been inadvertently destroyed. Nevertheless, the People agreed to permit the Sprint report to be received in evidence, so the issue of a possible inconsistent description was placed before the jury. Furthermore, defense counsel was able to interview the only identifiable person involved in the 911 call. Defendant’s assertions that the 911 recording would have been helpful to the defense, or that earlier disclosure would have led to the discovery of more witnesses, are speculative, and there is no reasonable possibility that the result of the trial would have been different if the recording had been preserved or the information had been disclosed earlier (see e.g. People v Richardson, 192 AD3d 432, 433 [1st Dept 2021], lv denied 37 NY3d 959 [2021]).”

3rd Dept

People v. Gilmore (Dale), 2021 NY Slip Op 06880 (12/9/21) – In a CPL 440.10 motion to vacate his Schenectady County CPW 2 conviction, defendant alleged that the prosecutor neglected to advise the defense of a cooperation agreement whereby the People had agreed to dismiss some of the victim’s pending criminal charges if she testified at defendant’s trial. However, defendant proffered nothing to substantiate his claim — which the prosecutor denied in answering the motion. Furthermore, the record contained a letter sent by the prosecutor during trial informing the defense that the prosecutor had met with the victim and stated he would advise the Albany County District Attorney’s Office that she had cooperated, but that he had made no promises to her concerning the impact of her testimony on pending charges. “Although ‘the existence of an agreement between the prosecution and a witness, made to induce the testimony of the witness, is evidence which must be disclosed under Brady principles” (People v Novoa, 70 NY2d 490, 496 [1987] [internal quotation marks and citations omitted])” the Third Department found that this defendant’s claim was “unsubstantiated and conclusory” and therefore the 440.10 motion was properly denied without a hearing.

4th Dept

People v Mosely (Farod), 2021 NY Slip Op 07393 (12/23/2021) – “Defendant failed to preserve for our review his contention that the People committed a Rosario violation when they failed to collect and disclose to defendant a second surveillance video purportedly depicting the shooting (see CPL 470.05 [2]; People v Page, 105 AD3d 1380, 1383 [4th Dept 2013], lv denied 23 NY3d 1023 [2014]). In any event, that contention lacks merit. The second surveillance video does not constitute Rosario material inasmuch as it was not a statement made by a prosecution witness (Page, 105 AD3d at 1383 [internal quotation marks omitted]).”

Grand Jury

1st Dept

People v Gunther (Jacob), 2021 NY Slip Op 07090 (12/21/21) – Court rejected defendant’s argument that he was entitled to vacatur of his plea to criminal mischief because the People introduced false evidence before the grand jury. The fact that there was a discrepancy as to the vehicle’s model year between the body shop employee’s affidavit re damages, which was put before the grand jury, and the paid bill, from a different body shop, submitted at sentencing, was of no moment. “No ‘false’ evidence was presented to the grand jury, and defendant was not entitled to withdraw his plea. While defendant insists on appeal that the paid bill was for repairs to a ‘different’ car, it was manifestly for the victim’s [2016 vehicle], albeit with [one-digit clerical] error as to the year.”

3rd Dept

People v. Abdullah (Yaquin), 2021 NY Slip Op 05742 (10/21/21) – On this appeal from bench trial convictions for a July 2015 burglary and an August 2015 burglary, the 3rd Dept rejected defendant’s argument that the People’s ex parte application for re-presentment violated his due process rights. That argument had not been preserved for appellate review, and “is also without merit [see People v Washington, 125 AD2d 967, 969 (4th Dept 1986), lv denied 69 NY2d 887 (1987).”

But it reversed the conviction for the July 2015 burglary and dismissed that count on the ground that the Supreme Court should not have granted the prosecutor’s CPL 190.75 (3) application to resubmit a charge of second degree burglary after the original grand jury had voted a no true bill — “which is the functional equivalent of a dismissal (see People v Aarons, 2 NY3d 547, 555-556 [2004])” — with respect to second degree burglary as a sexually motivated felony. “A trial court’s authority to grant resubmission is not a pro forma or ministerial act and ‘should be exercised sparingly and discriminately’ [People v Dykes, 86 AD2d 191, 194-195 (2d Dept 1982)], as the dismissal of a charge by a grand jury is ‘entitled to great deference because [it] represent[s] a determination that the evidence was not of sufficient credible worth to warrant a prosecution’ [citation omitted]. Thus, the trial court should not authorize resubmission of a charge unless it appears, for example, that new evidence has been discovered; that the grand jury failed to give the case a complete and impartial investigation; or that there is a basis for believing that the grand jury otherwise acted in an irregular manner [internal punctuation & citation omitted].”

Here, the prosecutor’s sole reason for seeking to re-present was that the original grand jury had “acted in an irregular manner” without identifying any specific irregularity. “Moreover, in granting the application, Supreme Court did not find that the first grand jury acted in an irregular manner or that it failed to give the case a complete and impartial investigation or that the People had discovered new evidence. Rather, Supreme Court granted the People’s application because the People had presented a new theory of the case. Even assuming, without deciding, that this was an appropriate factor for Supreme Court to consider in determining whether resubmission was appropriate (compare People v Dykes, 86 AD2d at 197), a review of the underlying charges demonstrates that the resubmitted burglary in the second degree charge [which excluded the sexually motivated felony component] that was presented … did not actually present a new theory of the case and, instead, relied upon the very same facts and conduct that were presented to the first grand jury, which … found were insufficient to warrant prosecution. As such, we find that Supreme Court should not have granted the People a second bite at the apple….”

4th Dept

People v Merrow (Jennifer), 2021 NY Slip Op 05201 (10/1/2021) – Defendant contended that she was deprived of the right to testify before the Grand Jury when the People announced their intention to present charges of DWI and assault to one Grand Jury and refused to limit their cross-examination of her to the assault charge. The 4th Department upheld County Court’s denial of her motion to dismiss the indictment. “The court [below] properly concluded that the charges were joinable pursuant to CPL 200.20 (2) (b) [citation omitted]. Inasmuch as the charges were joinable, the People were ‘entitled to present them to a single grand jury and, [if] defendant exercised [her] right to testify, to question [her] about all the crimes the grand jury was considering’ (People v Colon, 306 AD2d 213, 214 [1st Dept 2003], lv denied 1 NY3d 539 [2003]).”

Voir Dire

2nd Dept

People v Johnson (Corey), 2021 NY Slip Op 06627 (11/24/2021) – Drug convictions reversed and new trial ordered because of a Batson violation. The prosecutor exercised peremptory challenges to exclude 5 prospective black jurors, including a school counselor who indicated that she wanted to hear from both sides. The trial court agreed that there had been a prima facie showing of discrimination and asked the prosecutor for race-neutral explanations. With respect to the school counselor, the prosecutor referred only to that prospective juror’s wish to hear from both sides — which prompted defense counsel to point out that a white school counselor who also indicated she would need to hear both stories was not challenged by the People. The trial court nevertheless denied defendant’s Batson application.

“Although the uneven application of race-neutral factors does not indicate pretext where the prosecution can articulate other legitimate reasons to justify the use of its challenges” (People v Brown, 153 AD3d 850, 851, citing People v Allen, 86 NY2d 101, 110), the prosecution here failed to do so. Under these circumstances, we conclude that the nonracial bases advanced by the prosecutor for challenging S.K. were pretextual and “give[ ] rise to an inference of discriminatory intent” [citations omitted]. * * * The striking of even a single prospective juror for a discriminatory purpose is constitutionally forbidden, and, therefore, we need not determine whether the peremptory challenges exercised by the prosecutor with regard to the other prospective black jurors were race-based.”

3rd Dept

People v. Lombardo (Joseph), 2021 NY Slip Op 07580 (12/30/21) – During jury selection, where defendant stood charged with Predatory Sexual Assault, the prosecutor asked a prospective juror: “In a moment, I’m going to ask you to stand up and tell everybody about your last sexual experience. The precise acts you engaged in and [in] what order[,] where your hands w[]ere, your body positions, who it was, how the two of you felt, where it was, what the lighting was…, if there was a TV on, music on, et cetera. Okay?” The prosecutor then told the man that she was not actually seeking his answer to the question, but rather “how [he] would … feel if [she] actually did ask [him] to stand up and do that?” After the man acknowledged that such questions would make him nervous, the prosecutor asked him to “imagine an eight[-]year[-]old girl having to sit up on that witness stand and say things like that in that nature.” The Third Department found that while “the prosecutor could have made her point in a less jarring manner,” her language did not constitute misconduct.

Opening

3rd Dept

People v. Davis (Maurice), 2021 NY Slip Op 06883(12/9/21) – During his opening statement, the prosecutor stated that an Officer Hotaling would testify that he compared the still images from Walmart’s surveillance video to a known photograph of defendant and that he was “able to make a positive identification.” The trial court sustained defense counsel’s objection to “positive identification,” and the prosecutor “immediately corrected himself” by saying that Hotaling would tell the jury whether he recognized anyone in the photographs. Thereafter, the prosecutor stated that another witness, Detective Guadagnino, would testify concerning “what he did to identify the individual who was in the store and how he identified that individual as’ [defendant].” The Third Department concluded that if the remark about Hotaling was improper at all, “it was fleeting and immediately corrected upon defendant’s sustained objection, thus falling far short of the flagrant, pervasive or egregious misconduct that compels a mistrial.” In addition, the prosecutor’s statement about the witness Guadagnino’s expected testimony was proper since it simply stated the facts to which he was expected to, and did, testify. The trial court therefore properly denied defendant’s motion for a mistrial based on prosecutorial misconduct.

People v. Lombardo (Joseph), 2021 NY Slip Op 07580 (12/30/21) – The prosecutor’s use of sexually explicit details during her opening, at a trial where defendant was charged with Predatory Sexual Assault, was acceptable to outline the facts which the prosecutor intended to prove to satisfy the People’s burden of proof. While the prosecutor’s remark that the facts were “undeniable” was “of some concern” to the Third Department, defendant was not denied a fair trial, for the prosecutor “did not directly vouch for the victim’s credibility,” and any prejudice from the remark was dissipated by the trial court’s instruction to the jurors as to their role as finders of fact.

Direct

1st Dept

People v Delacruz (Eliseo), 2021 NY Slip Op 06656 (11/30/21) – Court declined to reverse CPW convictions on the unpreserved grounds that (1) the People should not have made a videotape part of their direct case without first seeking an advance ruling as to its admissibility, and (2) the videotape should not have been admitted under Molineux. “Several hours before one of defendant’s codefendants shot the victim on the street, with defendant standing nearby, defendant sent a video to a WhatsApp group chat. In the video, which was filmed in the New Jersey home of the same codefendant, defendant displayed a pistol, announced his intention to kill the victim, and accepted a magazine of ammunition from the other codefendant. This video did not constitute Molineux evidence because it did not ‘concern[] a separate crime or bad act committed by the defendant’ (People v Frumusa, 29 NY3d 364, 369-370 [2017]), but rather one that was directly ‘relevant to the very same crime for which defendant [was] on trial’ (id. at 370). The video was direct proof of defendant’s specific criminal intent, and that he acted in concert with the two codefendants, who possessed pistols at the time of the shooting.”

People v Challenger (Levi), 2021 NY Slip Op 06927 (12/9/21) – Robbery and assault convictions reversed because the People elicited lay opinion testimony from the arresting detective that defendant was the person depicted in two surveillance videos — an error that could not be deemed harmless in this particular case, which hinged on identification and where the victim was never able to identify his assailant.

“[T]he alleged difference in appearance — the addition of eyeglasses — was de minimis, and the jury had access to photos of defendant without eyeglasses [citations omitted]. The People do not point to any case in which lay opinion testimony was permitted based on such a slight change in appearance. Moreover, ‘no other circumstance suggested that the jury, which had ample opportunity to view defendant, would be any less able than the [officer] to determine whether he was seen in the videotape [People v Coleman, 78 AD3d 457, 458 (1st Dept 2010)]. Thus, the probative value of the detective’s testimony did not outweigh its prejudicial effect [citation omitted]. Indeed, at the time of trial, the arresting detective [testified he] was a 20-year veteran of the force and had 14 years’ experience investigating robberies and burglaries on the Lower East Side, where the incident occurred. He had made nearly 600 arrests and assisted in approximately 200 others. Stating twice that the perpetrator in this case was defendant carried significant weight in the eyes of the jury. Although the court provided limiting instructions, ‘[t]ruly prejudicial evidence cannot be erased from a juror’s mind by the court’s instructions’ (People v Stanard, 32 NY2d 143, 148 [1973]).

People v Orozco (Eric), 2021 NY Slip Op 06926 (12/9/21) – In this case, decided the same day as Challenger, supra, a different panel of Justices rejected the defendant’s claim that his probation officer should not have given opinion testimony that defendant was the person depicted on surveillance video discharging a firearm. “The officer was in a better position than the jurors to identify defendant on the video, and his testimony ‘served to aid the jury in making an independent assessment regarding whether the man in the

was indeed the defendant’ (People v Russell, 79 NY2d 1024, 1025 [1992]; see also People v Pinkston, 169 AD3d 520, 521 [1st Dept 2019], lv denied 33 NY3d 1107 [2019]).”

People v Lopez (Adrian), 2021 NY Slip Op 06962 (12/14/21) – “[T]he People should not have elicited testimony from a detective suggesting that the nontestifying codefendant implicated defendant in the crime, or testimony implying that the victim had identified defendant in a lineup.” But because of the overwhelming evidence of Lopez’s guilt, court deemed errors harmless.

People v Robertson (Dayquan), 2021 NY Slip Op 06964 (12/14/21) – 1st Dept held that the People were properly permitted to elicit evidence of two prior assaults by the defendant on the victim. “This evidence was admissible to provide necessary background information regarding the nature of the couple’s relationship, which was directly relevant to establish defendant’s motive and intent (see People v Dorm, 12 NY3d 16, 19 [2009]; People v Ebanks, 60 AD3d 462 [1st Dept 2009], lv denied 12 NY3d 924 [2009]). The probative value of the evidence outweighed its prejudicial effect, which, in any event, was mitigated by the court’s limiting instructions (see id. at 462).”

3rd Dept

People v. Davis (Maurice), 2021 NY Slip Op 06883 (12/9/21) –Defendant contended that the People should not have been permitted to call the defendant’s brother as a witness because he said that he intended to invoke his right against self-incrimination. The record showed that the prosecutor believed that the brother, who had already pleaded guilty, could not invoke his Fifth Amendment privilege. Whether that belief was accurate [see Mitchell v United States, 526 US 314, 321-322 (1999)], was not controlling on the question of whether a new trial should be ordered. It did not appear that the People were attempting to build the case based on the invocation of the privilege, for the prosecutor first obtained the trial court’s permission to compel the brother to testify. The brother invoked the privilege three times, and the trial court directed that he answer the question each time. The brother’s answers were subject to cross-examination, and there was no basis for the jury drawing an improper inference. Lastly, during summation, the prosecutor made no reference to the brother’s attempts to invoke the privilege and did not suggest that the jury make any adverse inferences as a result of that invocation.

People v. Hajratalli (Ramiz), 2021 NY Slip Op 07036(12/16/21) – Prior to defendant’s trial for two separate burglary and related charges, the prosecution submitted a Molineux application seeking to introduce evidence of a prior incident: while sleeping at a friend’s home where the defendant was also present, the Molineux witness woke up and realized that the defendant was rubbing her leg. She confronted him and he told her that: “I liked you better when you were asleep.” County Court ruled that this evidence was admissible to establish defendant’s intent and motive for the crimes charged in the current indictment, stating “that defendant’s illegal entry in the two residences was intended for having physical/intimate/sexual contact with young women [whom] he targeted in the early morning hours walking home from bars.” At trial, the Molineux witness testified, unprompted, that in addition to rubbing her leg, the defendant had moved his hand up her leg “towards [her] private area.” When the prosecutor asked her to clarify “private area,” she answered: “My genitals.” The trial court overruled defense counsel’s objection and when the prosecutor began to pose another question, the Molineux witness added: “’My vagina.’” Defense counsel moved for a mistrial and the trial court denied that motion. However, after reviewing the prosecution’s Molineux application, the court determined that the testimony exceeded the scope of the People’s Molineux proffer, struck the Molineux witness’s testimony and instructed the jury to disregard it. The Appellate Division found that the trial court properly denied the mistrial motion and refused to reverse the conviction. “[T]he prosecutor’s direct questions eliciting testimony that exceeded the bounds of the Molineux proffer, although improper, did not deprive defendant of a fair trial.”

People v. Serrano (Luis), 2021 NY Slip Op 07037 (12/16/21) – During direct examination of the police detective who conducted a post-arrest interview of the defendant, the prosecutor elicited testimony that defendant had invoked his constitutional rights to remain silent and to have the assistance of counsel. Although such questioning was improper and prejudicial, here the majority of the Appellate Division concluded that the constitutional error was harmless beyond a reasonable doubt.

4th Dept

People v Conklin (Dennis), 2021 NY Slip Op 06246 (11/12/21) – Court rejected defendant’s contention that the People failed to lay an adequate foundation for the admission of expert testimony regarding defendant’s blood alcohol content. In accordance with, e.g., People v Campbell, 73 NY2d 481 (1989), the People’s forensic expert in this case “testified that, before testing the blood sample in question, he verified the reliability and accuracy of the testing equipment by performing routine quality control tests. Specifically, he used samples containing no ethanol to ensure that the machine was not contaminated, and used ‘samples of known concentration”’ to calibrate it.”

People v Miller (Artis), 2021 NY Slip Op 06236 (11/12/21) – In a case involving a domestic violence homicide, the 4th Department held that evidence, adduced on the People’s direct case, of prior acts of domestic violence by the defendant upon the victim were probative of intent, motive and identity & did not deprive defendant of a fair trial.

People v Hildreth (Shayne), 2021 NY Slip Op 06250 (11/12/21) – In a case where the defendant was charged with using a child in a sexual performance and criminal sexual act, the 4th Department rejected defendant’s contention that he was deprived of a fair trial by the admission of testimony by the victim of prior uncharged crimes and evidence that the defendant had child pornography on his phone. “Defendant’s past sexual abuse of the victim and his interest in child pornography were highly probative of whether defendant, whose home had previously been broken into, installed the surveillance camera in the victim’s bedroom in order to capture images of her for the purpose of his own sexual gratification [citations omitted]. With respect to the criminal sexual act charge, defendant’s past abuse of the victim ‘provided necessary background information on the nature of the relationship and placed the charged conduct in context’ (People v Dorm, 12 NY3d 16, 19 [2009]). Thus, the probative value of that evidence outweighed its tendency to demonstrate defendant’s criminal propensity [internal punctuation and citation omitted].”

People v Caballero (Luis), 2021 NY Slip Op 06509 (11/19/2021) – Court rejected similar challenge to receipt of evidence — at non-jury trial for child sex offenses — re prior acts of sexual misconduct by the defendant upon the victim. It found the victim’s testimony concerning the uncharged acts was permissible because it “complete[d ]the narrative of the events charged in the indictment,” supplied “necessary background information,” and placed “the charged conduct in context” [citations omitted]. “Contrary to defendant’s contention, ‘the probative value of that evidence outweighed its potential for prejudice,’ especially given the presumption in a bench trial that the court has considered only competent evidence in reaching its verdict [citations omitted].

People v Moss (Dwight), 2021 NY Slip Op 07394 (12/23/21) – “Evidence that defendant had touched the victim inappropriately on a prior occasion while playing with her and her brothers would tend to show that his conduct was not accidental, and thus, the evidence of the prior, alleged incident was ‘relevant to establish the absence of mistake or accident, as well as intent’ [People v Gonzalez, 62 AD3d 1263, 1265 [4th Dept 2009].”

People v Ott (Anthony), 2021 NY Slip Op 07384 (12/23/21) – Court rejected defendant’s claim of entitlement to reversal on the ground that the People were permitted to elicit evidence that he refused to speak to law enforcement. “[B]ecause defense counsel’s cross-examination of the investigator may have created a misimpression that the investigator did not fully investigate this incident because the investigator did not speak to defendant, the People were entitled to correct that misimpression on redirect examination (People v Paul, 171 AD3d 1467, 1469 [4th Dept 2019], lv denied 33 NY3d 1107 [2019], reconsideration denied 34 NY3d 953 [2019], cert denied — US —, 140 S Ct 1151 [2020]; other citation omitted).”

People v Tucker (Dwayne), 2021 NY Slip Op 07356 (12/23/2021) – Court upheld receipt into evidence, on People’s direct case, of text messages between the defendant and a codefendant. First, the People demonstrated sufficient authentication. See generally People v Hughes, 114 AD3d 1021, 1023 (3d Dept), lv denied 23 NY3d 1038 (2014); People v Clevenstine, 68 AD3d 1448, 1450-1451 (3d Dept 2009), lv denied 14 NY3d 799 (2010). Additionally, the text messages sent by the codefendant’s cell phone were admissible pursuant to the co-conspirator exception to the hearsay rule. Court pointed out that “[t]he prima facie case of conspiracy does not need to be established before the coconspirator’s statements are admitted in evidence, so long as ‘the People independently establish a conspiracy by the close of their case’ [citation omitted].”

People v Mosely (Farod), 2021 NY Slip Op 07393 (12/23/2021) – Defendant was convicted after a jury trial of criminal possession of a weapon and reckless endangerment. On appeal, he contended that trial court erred in allowing a police witness to identify him in a surveillance video played for the jury. A 3-2 majority concluded that the testimony was properly part of the prosecution’s direct case because the People presented evidence establishing that the police detective was familiar with defendant based on numerous prior interactions with defendant over the course of more than a year, during which time the police detective observed defendant’s appearance, body language, demeanor, and gait. Thus, there “was some basis for concluding that the [police detective] was more likely to identify defendant correctly than was the jury” (People v Gambale, 158 AD3d 1051, 1053 [4th Dept 2018], lv denied 31 NY3d 1081 [2018]; see People v Trowell, 172 AD3d 1112, 1113 [2d Dept 2019], lv denied 33 NY3d 1074 [2019]) — “[n]otwithstanding the fact that defendant[] had not changed [his] appearance subsequent to having been videotaped.” In short, “the police detective’s testimony ‘served to aid the jury in making an independent assessment regarding whether the man in the [“poor quality” video] was indeed the defendant’ [citation omitted].”

The majority also noted “that the court properly instructed the jurors that, inter alia, the police detective’s testimony should not automatically be accepted and that the identity of the shooter was a question of fact for the jury, thereby emphasizing to the jury that the police detective’s ‘opinion was merely to aid their decision based upon all the facts and circumstances of the case and that they were entitled to accept or reject it’ (Gambale, 158 AD3d at 1053).”

Cross-examination

3rd Dept

People v. George (Dezra) 2021 NY Slip Op 06006 (11/4/21) – At the outset of the trial for Promoting Prison Contraband, the inmate-defendant stipulated that he was an incarcerated individual at a correctional facility at the time of the incident, and the prosecution withdrew its Sandoval and Molineux applications. The trial judge warned the defense that if it “[got] into an area that opens the door there is going to be [an] application about that and I’ll rule accordingly.” After the People rested, the court reminded the defense that it would reconsider its ruling on admissibility of Sandoval information if defendant opened the door. In his testimony, defendant portrayed himself as a rule follower and the victim of retaliation. The prosecution then sought permission to cross-examine him on whether he had been found guilty of infractions of prison rules. The Third Department found that the prosecutor was properly permitted to ask a single question — whether defendant had committed disciplinary infractions while in person — to correct the incomplete and misleading impression that defendant was the victim of retaliation.

Summation

1st Dept

People v Medina (Arturo), 2021 NY Slip Op 05399 (10/7/21) – “The prosecutor’s summation comments arguing that the People’s witnesses told the truth about various matters were properly responsive to the defense summation, which extensively attacked those witnesses’ credibility (see People v Overlee, 236 AD2d 133, 144 [1st Dept 1997], lv denied 91 NY2d 976 [1998]).”

People v Delacruz (Eliseo), 2021 NY Slip Op 06656 (11/30/21) – “The prosecutor’s summation remarks urging the jurors to use their common sense did not undermine the People’s burden of proving defendant’s guilt beyond a reasonable doubt (see People v Scott, 305 AD2d 133 [1st Dept 2003], lv denied 100 NY2d 587 [2003]), and in any event did not warrant a mistrial.”

People v Manley (Christian), 2021 NY Slip Op 06814 (12/7/21) – “During summation [at trial of indictment charging CPW 2], it was inappropriate for the prosecutor to squeeze the trigger of the pistol to emphasize its operability. However, to the extent this may have been inflammatory, this single instance of impropriety did not deprive defendant of a fair trial.”

4th Dept

People v Getman (Derek), 2021 NY Slip Op 06224 (11/12/21) – After reversing defendant’s conviction on other grounds, the 4th Department added that “it was unacceptable for the prosecutor to state, during his summation, that he was at a ‘significant advantage over’ the jury because he had been working on the case for more than a year, possessed ‘an entire cart of evidence of questions [and] paperwork,’ and had ‘the opportunity to talk to the witnesses’ and ‘review reports.’ By making those comments, the prosecutor improperly ‘injected the integrity of the District Attorney’s office into the case’ (People v Clark, 195 AD2d 988, 990 [4th Dept 1993]).”

People v Ott (Anthony), 2021 NY Slip Op 07384 (12/23/21) – Court rejected defendant’s contention that he was deprived of a fair trial by the prosecutor’s comment “upon defendant exercising his right to remain silent.” “Insofar as the prosecutor improperly characterized defendant’s silence as evidence of his consciousness of guilt (see generally People v Conyers, 52 NY2d 454, 457-460 [1981]), such impropriety was obviated when the court sustained defendant’s objection to that comment and gave a curative instruction to the jury [citations omitted] and, in any event, such impropriety is harmless in light of the overwhelming evidence of defendant’s guilt and the lack of any reasonable possibility that defendant otherwise would have been acquitted [citation omitted].”

Miscellaneous

1st Dept

People v Criscuolo (Anthony), 2021 NY Slip Op 06813 (12/7/21) – App Div affirmed 2014 Rape 1 plea conviction & trial court’s 2019 denial of CPL 440.10 motion. Among the grievances raised by defendant on appeal: that the People adduced, in conjunction with 440.10 proceeding, recordings of phone conversations defendant, while in pretrial custody, had with his mother, girlfriend, and attorney before pleading guilty. 1st Dept first found that “defendant has not identified any statutory or constitutional impediments to the People’s use of the nonprivileged calls.” The fact that some privileged attorney-client calls were inadvertently disclosed by local correction facility in response to People’s subpoena “was sufficiently addressed and does not entitle defendant to vacatur of his conviction or dismissal of the indictment.”

“This violation of the attorney-client privilege was both inadvertent and sufficiently remedied. The prosecutor was incorrectly informed that the calls provided did not include any attorney calls. Upon learning otherwise, the prosecutor created a firewall (see e.g. People v Raspa, 167 AD3d 456 [1st Dept 2018], lv denied 33 NY3d 953 [2019]) by having two prosecutors not involved in defendant’s case provide a separate disc that excluded the attorney calls. In doing so, these prosecutors did not listen to the contents of the calls, and neither the firewall prosecutors nor any prosecutors involved in defendant’s case learned the contents of the attorney calls or made any use of them. Accordingly, we find no violation of defendant’s right to counsel or his due process rights.”

3rd Dept

People v. Lane (Todd),2021 NY Slip Op 07324 (12/23/21) – This was an appeal/ purported appeal from a July 10, 2019 SORA determination made, from the bench, by the County Court, which simply “directed that the minutes be transcribed with a so-ordered provision and served upon counsel. Defendant filed a July 2019 notice of appeal from that risk level assessment; no transcript or other order had been signed at the time.” Presiding Justice Garry wrote an extensive opinion recognizing that this is a problem that arises in SORA proceedings, which are civil proceedings, often handled by practitioners who are more familiar with the CPL than the CPLR, and then reminded litigants of the applicable statutory rules:

  • At the conclusion of the hearing, the SORA court is statutorily required to issue an Order setting forth its determination and making findings of fact and conclusions of law which provide the basis for the SORA determination. Correction Law § 168-n (3). Such Order must be in writing and “entered and filed in the office of the clerk of the court where the action was triable.” CPLR 2220 (a); see also CPLR 5016 (a).
  • Under the CPLR, a judgment or Order is deemed entered after it has been signed by the Clerk [here, the County Clerk – see County Law § 525 (1) and CPLR 105 (e)] and filed by him/her. An appeal generally cannot be taken from an Order which has not been entered. See CPLR 2220 (a), 5016 (a), 5513 (a), and People v West, 193 AD3d 1127, 1128 (3rd Dept 2021).
  • Generally speaking, once the Order has been entered by the Clerk, the party who prevailed has the obligation to serve the losing party with a copy of the Order together with Notice of its Entry. The losing party then has 30 days after service of the Notice of Entry to take an appeal. CPLR 2220 (b) and 5513 (a); see also Correction Law § 168-n (3).

Of special importance to prosecutors: “Pursuant to SORA, ‘the district attorney, or his or her designee,’ is statutorily required to appear at the SORA hearing on behalf of the state and bears the burden of proving the facts supporting the risk level determination being sought (Correction Law § 168-n [3]). Thus, the People bear the responsibility of ensuring that a written SORA order is entered and that notice of entry, along with a copy of that written order, is served on the defendant.”

The Lane court noted that where no written Order is prepared and no Notice of Entry is served by the People, the defendant (a) can take action to have the written Order prepared and filed, and (b) then serve the Notice of Entry. But, Presiding Justice Garry admonished, “[T]he failure of courts to issue proper written SORA orders, or of the People to ensure entry thereof, should not regularly become a burden on the defendants who are unsuccessful parties at SORA hearings — as we find it so frequently has.”

4th Dept

People v Faison (Maurice), 2021 NY Slip Op 05184 (10/1/2021) – Murder conviction reversed because the trial court’s instructions created the possibility that defendant was convicted of a different theory of depraved indifference murder than that which was in the indictment and the bill of particulars. Defendants have the right “to be tried only for the crimes charged in the indictment,” and “[w]here the prosecution is limited by the indictment or bill of particulars to a certain theory or theories, the court must hold the prosecution to such narrower theory or theories” [internal punctuation and citation omitted].

People v Minwalkulet (Tewodros), 2021 NY Slip Op 05195 (10/1/2021) – Defendant absconded after being indicted on drug charges. He was located 14 years later when he was arrested in Pennsylvania on unrelated charges. Convicted following a jury trial, defendant argued that the judgment should be reversed and the indictment dismissed because his statutory and constitutional rights to a speedy trial were violated. The People contended on appeal that the defendant’s own actions — absconding and avoiding prosecution –were to blame for the delay. The 4th Department declined to entertain this assertion since the People failed to raise it before the trial court. But the issue of whether law enforcement exercised due diligence in attempting to locate defendant was preserved. After detailing the efforts law enforcement made, the Court held that law enforcement did exercise due diligence in their efforts to locate the defendant. Although defendant’s constitutional speedy trial claim was not preserved for appellate review, the court undertook the analysis prescribed by People v Taranovich, 37 NY2d 442 (1975), and found it had no merit. In conclusion, the court found, “Far from giving the People an unfair tactical advantage, the delay here has made the case against defendant,” which was entirely dependent on police testimony, potentially ‘more difficult to prove beyond a reasonable doubt’ [People v Vernace, 96 NY2d 886 (2001).

People v Lewis (LaShawn), 2021 NY Slip Op 06490 (11/19/2021) – Defendant was convicted after a jury trial of murder in the second degree. On appeal, she failed to persuade the 4th Department that she was deprived of due process because of a 12-year pre-indictment delay. “Here, the People established at the Singer hearing that the District Attorney’s Office brought charges after prosecutors uncovered a statement made by a crucial witness informing the police that defendant admitted committing the crime. The delay was in no part caused by any bad faith on the part of the People but, rather, was attributable to the mishandling of the witness’s statement by the police department. Under these circumstances, we conclude that the People provided ‘an acceptable excuse or justification’ for the delay [citations omitted]. Furthermore, it is undisputed that the underlying charge is a serious offense and that defendant was not incarcerated during the delay, and ‘there is no indication that the defense was significantly impaired by the delay’ [citations omitted].”

Additional Ethics Resources and Updates

  • On October 27, 2021, Governor Hochul issued Executive Order 10 mandating live ethics training for state officers and employees.
  • New York’s Daily News reported on November 22 that a Brooklyn prosecutor was demoted in December 2020 after (quoting from report it received in response to a FOIL request) the DA’s Office “became aware of social media postings made using public social media account which included offensive and derogatory content directed at certain racial minorities.” The newspaper learned that the same prosecutor was very recently fired because he “had repeatedly failed to show up to work in person or left work early without permission following his demotion and transfer to a new bureau, and the firing was not related to the memes, the source said.”

News From Around the US

Maryland
The longtime, now retired, State’s Attorney for Harford County was disbarred on October 22, 2021, because (as summarized by the Clerk of Maryland’s Court of Appeals) he “knowingly and intentionally failed to disclose for more than a decade exculpatory evidence that came to light after [a defendant’s convictions for a 1981 double murder], discarded evidence, sought to have forensic evidence in case destroyed, knowingly made false statements of fact to court and defense counsel concerning content of the post-conviction evidence he received [from the US Department of Justice-the FBI]; and, during Bar Counsel’s investigation, failed to comply with subpoena to provide a statement under oath.” Att’y Griev. Comm’n of Maryland v Cassilly, 262 A.3d 272 (2021).